Document KzBZwr7aJ9519wmYQ9QrBqbMw

1 IN THE UNIl D STATES DISTRICT > EASTERN DISTRICT OF TEXAS 3 BEAUMONT DIVISION 4 -t CALVIN FOSTER, ST UX 5 VS . 6 LONE STAR INDUSTRIES, INC. , ET AL * * NO. B-82-842-CA 3 * q This is the oral deposition of 10 KENNETH L. SCHEEL, 11 a Witness in the above-styled cause. The testimony 12 was taken at the instance of the Plaintiffs, on 13 September 25, 1984, at the offices of Orgain, Bell & 14 Tucker, 470 Orleans, Beaumont, Texas, pursuant to Notice. 15 Those persons present were as follows: 16 HON. HERSCHEL HOBSON 1~ Actorney-at-law 4000 Twin City Highway 13 Groves, Texas 77619 19 AND 20 HON. THOMAS SWEARINGEN, of the Law Firm of Provost, Umphrey, McPherson & Swearingen 21 4000 Twin City Highway Groves, Texas 77619 2" Counsel for Plaintiffs 23 HCN. JOHN BEN BLANCHARD, of the Law Fi cf Strong, Pipkin, Nelson & Bissell San Jacinto Building Beaumont, Texas 77701 . Counsel for Defendant, Specialty Sand Company HCN. DAVID GAULTNEY, of the Law Firm of Mehaffy, Weber, Keith & Gonsoulin Post Office Box 16 Beaumont, Texas 77704 Counsel for Defendant, Clemtex, Ltd. HON. VAN GARDNER, of the Law Firm of Hennessy & Associates 502 Caroline Street Houston, Texas 77002 Counsel for Defendant, Thorstenberg Materials Company, Inc. HON. STEVE BRYANT, of the Law Firm of Martin & Sperry 1302 McGowen Avenue Houston, Texas 77004 Counsel for Defendant, E. D. Bullard Company HON. BOYD WELLS, of the Law Firm of Wells, Peyton, Beard, Greenberg, Hunt & Crawford Post Office Box 3708 Beaumont, Texas 77704 Counsel for Defendant, Vallen Corporation HCN. JO BEN WHI TENBURG, of the cf Orgain, Eell & Tucker 470 Orleans Beaumont, Texas 7 7 701 Counsel for Defendant, Minnesota Mining & Manufacturing Company HON. KENT ADAMS, of the Law Firm of Benckenstein, Ncrvell, Bernsen & Nathan InterFirst Tower Beaumont, Texas 77702 Counsel for Defendant, Pulmosan Safety Equipment Corp. 'TON 'n TTTi 7rT"r-''' of the Law Firm of Mills, Shirley, McMicken & Eckel 700 InterFirst Tower Galveston, Texas 77550 Counsel for Defendant, Empire Abrasive Equipment Company HON. DEREK R. VAN GILDER, of Law Firm of Bean & Manning 1611 Weslayan Tower 24 Greenwav Plana Houston, Texas 77046 the Counsel for Defendant, Parmelee Industries, Inc. dba CESCO HON. ROWALD T. TrANCOCK, of Taylor, Hays, Price, 400 Citicorp Center Houston, Texas 77002 of the McConn Law Firm & Pickering Counsel for Defendant, Mine Safety Appliances 4 11 -r 2 HON. -g^S-S-PH- HOUSE, of the Law Firm of Talbert, Giessel, Stone, Barker & Lyman 3 1800 Commerce Building Houston, Texas 77002 4 Counsel for Defendant, 3 Heatley Equipment Company 6 CHARLOTTE SMITH, CSR, RPR Charlotte Smith Reporting, Inc. 1000 San Jacinto Building 8 Beaumont, Texas 77701 9 10 * 11 12 13 14 15 16 i. 18 19 20 o1 'VO 23 24 STIPULATION T IT IS STIPULATED AND AGREED BY 3 FOR THE PARTIES HERETO: 4 . That the deposition of the Witness named 5 herein is taken pursuant tc Notice attached hereto; 6 That the Witness may sign said deposition before any duly authorized and acting Notary Public 8 in and for the State of Minnesota; 9 That all objections, other than those that !0 relate to the form of the question and responsiveness 11 of the answer, are hereby preserved and may be made 12 at the time any testimony herein is sought to be 13 offered upon the trial of this cause; 14 That this deposition may be used upon the 15 trial of this cause with the same force and effect 16 as if the applicable Federal Rules of Civil Procedure with reference to the taking of the deposition and 18 return of same had been fully followed; 19 That the original transcript of this deposition 20 will be given to the attorney taking the same, and h ] that attorney will be responsible for filing the n><- original deposition with the Court, in the event 23 such act is called for by any party to this cause. 24 1 KENNETH L. SCHEEL, 1 having been duly sworn, testified as follows. 3 to-wit 4 EXAMINATION BY MR. SWEARINGEN: 5Q Would you state your full name, please. 6A Kenneth Lawrence Scheel. Q Hew do you spell your last name? 8A S-c-h-e-e-1. 9Q It's pronounced Scheel? 10 A That's correct, yes. 11 Q Mr. Scheel, I'm Tom Swearingen. I'm here 12 to take your deposition today. You are here with 13 your company lawyer, Mr. Whittenburg. 14 Have you had an opportunity to discuss 15 with him what a deposition is and what it means and 16 so forth? 17 A Yes, we have had that discussion. 18 Q Have you given a deposition before? 19 A No, I have net. 20 Q This is the first time in your life you O- !1 have ever sat down and given a deposition, as far on as vou know? 23 A 24 Q That's absolutely true, yes. Where do you live? 6 24 Services is to run a group that is currently six 1 3 4 I also operate as the technical liaison 3 between ourselves and our operating subsidiaries 6 in countries outside the United States. Q Do I understand that answer to mean that 8 your function for this company extends worldwide? 9A In my case, yes; that's true. 10 Q Now, you have mentioned that it is in the 11 technical field. That's a pretty broad term. Can 12 you be a little more specific about what kind of 13 technical advice or concern you have for your company? 14 A Sure. In general, I would say that the 15 best way to describe it is that anybody, including 16 our own sales forces for our Division, and any customer, if they need to know how a respirator that is marketed 18 by 3M Company functions, what it can be used for, 19 what are its attributes, what are its limitations, 20 as you apply them to the job at hand that that individual 21 person is interested in, that is our function: to advise our customers on what we believe is the proper 23 respirator to use. 24 Q Have you had six people in your group since 1 respirator can be used for certain things, 11 something that you know because you have investigated 3 it, or are you relying on a research division in 4 your company? Where do you get your information 3 to pass on to your customers? 6A Okay. We get that from a variety of sources. We get it from the general respirator community of 8 what is and is not practical and right and reasonable 9 for res;Dirator use. We get it from literature, published 10 literature, that is commonly available to the industrial 11 hygiene community. And we also get it from in-house, 12 from 3M, if we need to, from consulting with our 13 own corporate industrial hygiene community that we 14 have at 3M. IS Q Tell me about the corporate industrial 16 hygiene community at 3M. Who are they and where are they and what do they call themselves? 18 A Who are they -- They are a group of people 19 that are not part of our Division. They are a staff 20 function in 3M Company that operate as staff industrial 21 hygienists to advise the various working divisions on of the company plus cur manufacturing plants; you 23 know, operate as an industrial hygienist for that. 24 So, in a sense I guess they don't act much * 1 ' - -- j- t_ _ 1 -- -- --^ --4- n -p -p i industrial hygiene group. It is very that. Q You have to help .me, because I don't know -t what large corporations do in this regard. A 6Q They (Interrupting) First, let me ask you this: Do they call themselves a certain department or division? 8A They are not a division. They are a staff 9 group. They are part of the Medical Department of 10 3M. 11 Q They are a staff group and a part of the 12 Medical Department. Are they located in one general 13 location ? 14 A Yes, sir. 15 Q Where is that? 16 A In St. Paul, Minnesota. 17 Q 18 A 19 are. How many of them are there to your knowledge? I really don't know how many total there 20 Q Can you give me an estimate? With a large 21 corporation, I don't know if you're likely to have ->0 1,000 industrial hygienists or two or three. I just 23 have no concept of that. Jusi give me your best 24 estimate. 12 13 14 Q TA How about Valley, Nebraska? I would guess something less; 200, perhaps. Q Do you have manufacturing facilities located i outside of the United States of America? 5 A' For the entire corporation or for ... 6Q For respirators. A For respirators? 8C So that I don't have to say that each time, 9 I knew that you work for a very large corporation. !0 But I am interested really in the respirator business, 11 and we will keep it to that. 12 A Okav. Just one. 13 Q Where is that located? 14 A Aicliff, England. 15 Q Do you know approximately how many people 16 work there? i: A No, I do not. 18 Q Do thos,,e plants have industrial hygienists 19 that are assigned to that organization, or is all 20 of that work done through the office up in St. Paul? 21 A It's done from the office in St. Paul, 22 yes. They are assigned to operate out of those, plants, 23 correct. 24 Q Is the manufacture of respirators a particularly ` - ` *- -- nca') seems like you have two fairly small facilities that make these things. You have by your estimate - and I realize it is an estimate - 12 industrial hygienists who are trying to oversee that. MR. WHITTENBURG: I don't believe that's what he said. MR. SWEARINGEN: That's what I'm trying to get to, Jo Ben. I'm not trying to put words in his mouth. (By Mr. Swearingen) Q Surely these 12 people are not all in charge of those two plants; is that right? A Well, no, of course not. Q They are in other divisions of your company? A They are not in other divisions, no. They are responsible for servicing other divisions of the company. C Just so I will know, and as a matter of curiosity: What are the divisions of 3M? A You're asking me to name them by name? Q Yeah. Just tell me. Let me tell you. what I'm trying to find out: I'm trying to find out what 3M does for a living. Give me some broad general 1 MR. WHITTENBURG: Tom, i :hat is irrelevant. MR. SWEARINGEN: I don't, Jo Ben. They may be in a related business that may not be respirators but may be real close. In fact, I don't know what they do. I know that they make 3 I tape and all kinds of junk. 9 (By Mr. Swearingen) >0 Q Just give me a general idea. That's all 11 I want. 12 ' 13 jj MR. WHITTENBURG: I really don't think that is relevant or material. 14 13 16 i If you want to ask him if 3M is into anything that might relate to respirators or the sandblasting industry, that's one thing. To ask him to name all 18 of the different divisions of 3M I 19 think is a waste of time. 20 ; j * :i MR. SWEARINGEN: I'm not asking him to name all of the divisions of on 3M. I don't think he can. He probably 23 doesn't know that. (By Mr. Swearingen) 1 -> 3 4A The company is structurally set up in 5 essentially four groups. 6Q Maybe that's what I'm trying to ask you. What are the four groups? 3A The tape is one. 9Q Tape. Health care? 10 A Health care is one. The electrical bit II is the third one, and the fourth one would be the 12 copy machines and that sort of thing. 13 Q Now, do respirators come under health care? 14 A Yes. 15 Q What type of abrasive does 3M sell? 16 A Sandpaper, grinding discs. My knowledge 1 ~ of that is strictly thirdhand. I have never worked 18 for that part of the corporation. !9 G I thought that you might have some connection 20 in your business with the fact that some of these _1 11 abrasives sold by your company require the use of ~>n respirators when using abrasive grinding discs,, for 23 example. 24 Does that overlap or have any interplay ^i V ^ cm 1 = V'HC' 20 :j Q Do you give customers information about oj the safe use of these electrical products? no t A No. No > - Q Do you give customers information or advice about the safe use of the tape products of your company? Q oA 3C Cr the copy c Nc. Sc, is it fair for me to understand that 4 your job is limited simply to one of these four areas, 5 which is the health care area? 6A It is fair for you to say that it is limited to our Division alone. Anything else in the health 8 care area I have nothing to do with. 9Q It is limited to respirators alone? What 10 is your Division? I'm sorry. 11 A The name of it? 12 Q Yes . 13 A The OccupationalHealth & SafetyProducts 14 Division. 15 Q I think I'm just having a hard time asking 16 you questions. 17 You have given me four areas of your company: 18 One of them is called health care, and you told me 19 that respirators come in that part of the company. 20 A Occupational Health & Safety Products as 21 part of that section, yes. 99 Q Do you only concern yourself with respirators, 23 or are there other health care products from your 24 company that you are concerned with? 1 that I am concerned. wit:.. 1 Q Give me the breakdown, generally, of the 3 health care part of 3M, the corporate organization 4 or whatever you want to call it. 5A It is generally divided up in the health 6 care side into two main groups - three, pardon me: products that are in the dental area, and then ones 8 that are generically into medical products, and others 9 called surgical produces. Those are the three groups 10 in the health care area. 11 Q Dental, medical ... 12 A And surgical, yes. In the health care 13 they are a subset underneath this whole generic health 14 care title that I gave you, that we are also a part 15 of. 16 Q Which one of these things are you part 17 of? 18 A We are not. We are, along with them, under 19 this whole umbrella of health care. 20 Q Does 3M have a Division called the Health Care Division? an A No, it's a group. It's a segment of the corporation. It is not a Division. It's a collection 24 of things. 4 the orcranization? MR. WHITTENBURG: You have asked 6 about five questions there. MR. SWEARINGEN: I'm trying to give him an idea as to what I want, Q Jo Ben. I know we're dealing with i10 ! 11 ! ii 12 ! 13 !i I H| a big company, but I'm trying to boil it down to something that I can relate to with this man. MR. WHITTENBURG: If you want to know what he does, I think he can 15 tell you that. If you're trying to 16 find out about all of the other Divisions, i: I still think that is irrelevant and 18 immaterial; but you can go ahead and 19 ask the questions. He's here because 20 n-- 1i i1 oo you all asked for somebody to talk about respirators, and he's here in that respect. So ... 23 MR. SWEARINGEN: We're going 24 to talk about that, but I've got to 3 4 MR. WHITTENBURG: That's right. 5 (By Mr. Swearingen) 6Q What can you tell me about who that is and what that is, sir, in rhe way of products and a how you are involved in it? 9 MR. WHITTENBURG: Again, I don't 10 think that's relevant to what you 11 have asked us to provide a Witness 12 for. 13 MR. SWEARINGEN: It is relevant 14 to test his qualifications. I'm going 15 to ask him in a minute which one of 16 these things he has worked in and ) -* what his employment history has been. 18 MR. WHITTENBURG: Why don't you 19 ask him that. 20 MR. SWEARINGEN: I'm going to 21 in a minute. Right now I want to 22 know something about the health care 23 business. 24 MR. WHITTENBURG: Ask him what 1 i. about o (By Mr. Swearingen) 3Q Do I need to ask you more questions so 4 that you will see what I'm trying to-find out? 5A don't think so. 6Q I don't, either. Why don't you tell me about it. 8A let me try to explain it to you this way: 9 You've got the four groups of the company that you 10 have written down. In the health care group, that's 11 a general large title of a large group. Think of 12 it as split into two parts. One side of it is what 13 people tend to think of as health care, the ones 14 I named: dental, medical, surgical type products. 15 The other side of it might be easier - maybe the 16 best way for me to say it to you is it is more what 17 people might say is safety-oriented, in that it contains 18 our Division - OH&SP - and product lines that are 19 likereflective highway signing, things of that nature. 20 Q Okay. 21 A There are seme product lines in there that >2 are made - that firemen use to turn traffic lights 23 or. and off as they are running through the city streets, 24 sc that they don't run into pedestrians or cars, ~ 4- -ff j_ w 4- A^ of at. So, maybe that's the best way for me c how that works. 3Q That's all that 4 ! that part, there is a par i t 5 |A That's correct. 5 ;Q And you and the - you are primarily interes 3A Primarily, that 9 :Q Is that right? 10 A Yes. 11 Q Do you have any 12 products manufactured by 13 respirators ? 14 A 15 ii Q 16 A None, no. The six people (Interrupting) Let me back up, because you haven't asked that, and I don't want it later 18 on to be said that I answered that slightly wrong. 19 CH&SP doesn't make just respirators. We 20 make a couple of other products, too, that are not respiratory protection products at all. Q What are they? A The reason that I'm saying that is because 21 we do deal with those also as technical services. 26 1Q (Interrupting) Thinsulate insula^luTn ? A Yes. It is used in ski jackets and things 3 like that. And we also make a material called Oilsorbent 4 It's used for picking up oil off of water. So, yes, 3 my group -- We only have responsibility for those 6 products inside cur Division mostly, which is respirators but we also have these. 8Q Now we're getting somewhere. What percentage 9 of your time is spent on respiratory products, as 10 compared to Thinsulate insulation and Oilsorbent? 11 A Myself, personally, or the group? 12 Q 13 A Your Department. The Department? 14 Q Yes. 15 A Ninety-five percent. 16 Q These other two things take a very small [7 amount of your time; is that right? 18 A That is correct; yes, sir. 19 Q Tell me about the six people in your Department. 20 What are they? Are they people with your qualifications? Are they secretaries, clerks, or what? in A No, they are Technical Service Engineers, 23 is their title. 24 Q * What is a Technical Service Engineer? vo,. 1 l hx-ra fn Aafine that for me a little 24 1 University. Directly from there I came to wori 3M Company. Now, what is it you want to know past there ? 4Q When did you get your degree? A 6Q 1967. Have you pursued any other educational courses after your degree, special schools that you 8 have gone to at the request of your employer, seminars 9 any other educational training to qualify you further 10 in a particular field with 3M Corporation? 11 A Yes, I have gone to seminars run by 12 3M's Education & Training. I have gone to several 13 of those over the years; mostly having to do with 14 management skills. 15 Q Did any of them have to do with respirators? 16 A No, sir. i: Q 18 A 19 Q Did you study respirators in college? No, I_did not. That's not part of getting adegree as 20 a chemical engineer, is it? 21 A no Q No, it is net. And you have not studied them since you 23 got out of college; is that right? 24 ME. WHiTTENBL'RG: You mean 29 I 1 3 4 5 6 8 9 10 11 job involved, and where you moved to next. 1i o A I started in 1967 as a Development Engineer, 13 New Product Development Engineer, for the Industrial 14 Tape Division of 3M. And it was doing just that: 15 developing new pressure sensitive tape products. 16 I moved from that, after approximately a year and a half's time, into the technical service 13 group of the Industrial Tape Division. 19 Q While you were in the New Products Department 20 for a year and a half, were you responsible for the 21 design or development: cf any new products? OO A Yes, that's what I said: It was new product 23 development. 24 Q A Did you develop any new products yourself? Voc 7 H -i 1Q oA What were they? One was called a preservation tape. It 3 is used by the military for like sealing up cars 4 and tanks and things when they put them in the desert, 5 so that they would net corrode, and they could be 6 refurbished if they needed them. The ether one -- There were two others. 8 One was a protective tape that is used to put on 9 sheet steel to keep it from getting scratched and 10 marred as it is transported from warehouses and things . 11 And the last one was a - I guess the best way to 12 describe it to you is you have seen the labels that 13 are tires when you go into a gas station or a tire 14 store that say what size the things is. I designed 15 one of those, a label type tape that goes on a tire. 16 Q Did any of that work - either directly i: or indirectly - have anything to do with respirators? 18 A Not at all. 19 Q You were there a year and a half? 20 A Approximately, yes. 21 Q I'm sorry to interrupt you, but what was "to your next job? . 23 A Then I moved to the technical services 24 group of the Industrial Tape Division. What did you do in thatgroup? 30 -1 5 6 3 ? 10 11 12 13 H 15 16 i: 13 19 20 Q Where did you go from there? 21 A I then went to the International Division of 3M Company as essentially - let's say a Process 23 Engineer, involved in technology transfer from the 21 U.S. company to our subsidiary companies overseas. - i >->fnrmat- i nn tn overseas? 3 4 ' 6 8 0 10 11 12 13 14 15 16 1* 18 19 MR. WHITTENBURG: (Interrupting) 20 Wait! Don't interrupt him and don't 21 ask those kinds of questions, or we're QO going to stop this. 23 MR>. SWEARINGEN: I have a right 24 to know. I have a o know that. A Remember! I told you that we send it to the 3M personnel and to the 3M subsidiary. We are 4 not giving it to the countries in which we operate. Q 6A How long did you do that job? Approximately one year. Q Did that have anything to do withrespirators? 3: A Nothing. 9i I 10 1 Q Did you send any respirator information to any of your foreign subsidiaries? 11 A No, because my job had nothing to do with 12 ij respirators; never did. 13 i: Q What was your next job? 14 : A Exactly the same function as I just described 15 i i to you, except for the Commercial Tape Division of 16 !| 3M Company. Q And that was aninternational job? 13 A Yes. 19 Q How long did you do that? 20 A It was less than a year; eight or nine 2i months. 22 : Q It had nothing :o do with respirators? 23 A Nothing. Q What was your next job? /- - 1 Civnci ri; i c r\ r~ of the Commercial Tape Division. hQ Was that an international job or just a 3 national job? r A If was not international. It was strictly United States. 6Q How long did you do that? A About two years, maybe a little less. 8Q We are up to about '73 or '74, I guess. 9A It should be about '74, roughly, yes. 10 Q What did you do then? 11 A I went back and became the International 12 Manager for the Commercial Tape Division. 13 Q How long were you that? 14 A Until the middle of 1976. So, it would 15 have been 16 Q About ten years? 17 A Yes, a little less than that. 18 Q Nothing to do with respirators? 19 A No. 20 Q What was your next job? 21 A The next job was to manage the soft goods, on new product development. 23 Q 21 A And that was in about 1977? ' 76 . 1 Q *7 o A nQ 3A Uh-huh. Hew long did you hold that About a year and a half. 4Q Tell me a little bit about what that job 5 was. You told me it was the first job you had that 6 dealt with respirators. A That's correct, yes. 8Q I notice from your history that most of 9 your experience was in the pressure tape area. You 10 had at that point, from '67 until 1974 - you had 11 about seven years experience in your company's business 12 of pressure tapes; is that correct? 13 A That's true, yes. 14 Q Any particular reason that youchanged 15 major lines of products? 16 A I'm sorry, any reason I did what? 17 Q That you changed from one major line of 18 product to another. 19 A It was certainly jusr job opportunities 20 of moving inside the company. 21 Q Was that by your choice or the choice of no your company, that you changed from the pressure 23 tape business to the respirator business? 24 A Both. I was asked to do it, and I did 35 Q When you went to work in this ne o what was your position there? 3A Technical Manager in charge of a group, 3 whose job was new product development for respirators; 5 software for respirators. 6Q It seems strange to me that they would take a person that was unfamiliar with respirators 3 and put him in charge of developing new respirator q products. Instead of moving someone up through that 10 line, they took someone out of the pressure tape 11 line and put you in charge of that. That just strikes 12 me as being unusual. Is there any explanation for 13 that ? 14 A It's not unusual at all in the 3M Company. 15 What I was hired to do was to manage a group of people 16 who were very well versed in the development of new r products or respirators. The function that I was 18 to perform was a management function. I was not 19 to myself, personally, develop a respirator. 20 Q Since you got out of the New Product Division, O 1 has your work been primarily personnel management? on A Since when? 23 Q Well, you were in the New Products Division 24 of tapes, and you developed several new tapes as kt___ n _ ^ --i + t r ^ -r~ t r i1 call trr\nrcol *F 1 * 3 Your other ;jcbs seem maybe to be more of 4 the type that you have just described, where you 5 have relied on other people with super technical 6 knowledge, and you managed the personnel to accomplish a certain objective; is that true? 3A Yes, from the point of view that that is 9 what I did was manage a group that has the real technical 10 knowledge. And my objective was to direct them in 11 their work. And, of course, naturally, I have to 12 understand what they're doing. 13 Q And that is true now. I mean, that has 14 been continuously true for you since you developed 15 your new products in the Tape Division in your first 16 year and a half with the company. Your primary work 17 since that time has been the guidance and the management 18 of a group of people to accomplish certain objectives; 19 is that right? 20 A No, not exactly. The first time that I 21 was in management for a group of people would have no been when I was in the Commercial Tape Division as 23 the Tech. Service Supervisor. Before that it was w"1 -4r always myself, you knew, doing the hands-on work. 25 Q And that would have been in about 1973? 39 familiar with filtra ion, how it works gases and vapors and particulates. It essentially 3 is the same sort of thing that you learn in chemical 4 engineering. Q 6A Did you do this by self-study? Yes. Q Did you have technical people available 8 tc you that had superior knowledge at that time to 9 yours ? 10 A Yes. 11 Q Who were they and what did they call themselves?! 12 A They were people in my group, these development 13 people that had been working on respirators previous 14 to my appearance in OH&SP. 15 Q Can you give me some feel for how many 16 people that you are talking about? Did you have IT one or two people to go to or 100? 18 A No, it was mere like about eight or nine. 19 Q Now, when I say what were they, I don't 20 know what they are. Are they engineers or industrial 21 hygienists? What do they call themselves, the people oo that you went to to gain information about respirators? 23 MR. WHITTENBURG: Go ahead and 24 answer, but you are asking him a bunch 25 of questions as to what they call I 1 themsel 1 a lot o o are asking for their educational 4 background, I'm sure that he can probably give it to you. 6 MR. SWEARINGEN: Either one. A The people that were directly under my 8 supervision were primarily chemists and engineers. 9 The industrial hygiene people that we talked about 10 a long time ago, I would talk to them if I had questions 11 of them. I don't knew what their backgrounds were, 12 specifically, other than they have degrees in industrial 13 hygiene, working in the group. Previous to that, 14 I don't know if they were chemists or biologists 15 or what. 16 Q Were all of the people available to you ! 7 at your request to help you learn your new field? 18 A Yes. !9 Q Is there any particular person that maybe 20 you relied on more than others who was more experienced, 21 an older long-time employee? Is there any particular person with the 3M Company that today you attribute 23 the fact, "Well, that person is really the one that 24 got me into respirators and taught me the ropes"? 25 A Not really, no. 1Q nA You cannot identify anyone? Not like that, no. I used a whole raft 3 cf people to gain information from. 4Q Who was your predecessor in that job? 5A His name was -- I don't remember, sir, 6 because I didn't know him. I don't recall. Q You didn't get any input from him, apparently 3 before you took the job, did you? 9A No, I did not. 10 Q Did you ever meet him? 11 A I met him once, yes. 12 Q Just in a casual passing conversation or 13 whatever 14 A That's basically right. That's why I can't .. 15 2 You never had the opportunity to sit down 16 with the guy and say, "Tell me everything about this 17 business so that I can take over and fill your shoes"? 18 No, I did not do that. 19 Did he get fired or was he promoted or 20 21 No, he took a job in another Division. 90 Do you know why? 23 No, sir, I don't. 21 Was it for unsatisfactory services? rt r MR. WHTTfvMR[JRC . W e=> cfli'H ho 1 3 4 5 6A MR. SWEARINGEN: I just thought I might refresh his memory a little bit. No, I have absolutely no knowledge why he left and went to another Division. I couldn't 3 tell you. 9Q You have been unable to identify any particular 10 people that helped you learn the ropes in this business. 11 Can you identify any particular material, literature, 12 courses, studies, anything that you can tell the 13 Jury or tell me that you really feel like is the 14 thing that helped you learn about respirators? 15 A Yes, things like I took John Pritchard's 16 course. [7 Q Who is John Pritchard? 18 A John Pritchard is a consultant in industrial 19 hygiene that ran -- I believe he still does. At 20 the time he was running a respirator course. 21 Q Can you tell me when you took that course? 2 A Yes, it was early on; so it was in 19.76 23 sometime. 24 Q 25 A Where did you take it? It was up in St. Paul. He gave it. 1 vou referred to at tha 2A Yes . 3Q 4A Can you give me a list of them? They are 5Q (Interrupting) Let's back up a minute. 6 Let me establish this if I can. Is it fair to say - and I'm not trying 8 to put words in your mouth - that at that time you 9 really didn't know anything about respirators when 10 you took the job? 11 A When I took the job in OH&SP originally? 12 Q Yes. 13 A That's true. No, I did not. 14 Q Nothing other thanwhat an engineer or 15 a chemist might know from his general education about 16 the principles involved in a respirator; is that 17 correct ? 18 A Yes, although that's quite a bit, knowing 19 what the principles are involved. 20 Q I appreciatethat.Other than that you 21 have had no experience or knowledge? A No, other than that. 23 Q I'm sorry? 24 A 25 Q I said other than that, that'sright. You told me that one of theearly things 1 vou did was take John "I Uh-huh. 3C 4A Did it last a day cr two; do you remember? Two, I believe. 5C 6A Two days? Yes . Q Sort of in chronological order, if you 3 don't mind - and I'm sure that you do recall because g it was your learning experience about respirators - 10 You went from John Pritchard's course to what? I 11 mean did you start buying books? . 12 Just tell the Jury what course you took 13 to bring you to your knowledge today. 14 A Bringing me to my knowledge today? 15 Q Right. 16 A Well, I would have to split that into two, 17 because, remember, in the beginning it had to do 18 with the development of respirators. That was learning 19 about the -- Getting textbooks, articles, pamphlets, 20 things you get out of the literature that tell you 21 how particulate respirators and gas and vapor respirators function, how they physically work. I'm talking 23 about the filter media now or the filter absorbent 24 media. 25 Q There are two areas. Tell us about the 11 now ,, o Ycur company 3 to assist you or any otter employee, for that matter, 4 about their past experience or knowledge that they 5 had accumulated over the years about how to develop 6 new respirators, did they? A Let me back up. When you phrase it that 8 way, yes, there are records that are kept. You know, 9 people write reports. You can go back and see how 10 experiments came out that were run on things. All 11 of that is there, if you want to read it, from whatever 12 exists, you know. It can range from a little to 13 a lot, depending on the program. That's true in 14 a corporation like 3M. They keep records of what 15 has been done in the past - to some extent, anyhow. 16 Q I'm going to ask you a very simple question, IT and it may not be technically correct: 18 It seems to me that when you took that 19 job and you walked in, your first day on the job, 20 that you may have done what I think I would do; and, 21 that is, go and say, "Fellows, where can I get my on hands on some company literature, some company 23 information, something to tell me about this new n4i.'+* job that I have?" Did you do that? 25 A No, because that's not what I would do 1 at ail, ana it's not what I did do. my 2 job was to be a manager of that group. So, the first^*"*- 3 thing ------ 4Q 5 6 (Interrupting) Now, wait a minutel MR. WHITTENBURG: No. You let him finish. MR. SWEARINGEN: I'm just trying 8 to get him straight. I'm not talking 9 about personnel management. 10 MR. WHITTENBURG: You're trying 11 to get him to say what you want him 12 to say. If you don't let him answer 13 the question, then we're just going 14 to step the deposition. 15 (By Mr. Swearingen) 16 Q Answer the question. 17 A As I said, my job was to be the manager 18 of the group. So, therefore, when I walked in, I 19 didn't need to have people who were engineers, development 20 engineers, hand me a book on personnel management, 21 because they don't know anything about that. That's OO not their job. What I do is walk in and find out 23 and sit down and schedule meetings. And I had them 24 tell me and brief me about what their projects were. o r how thev were doina and where they were in them and 48 what their time schedules were for the development of the project that they had at the time. 3G John Pritchard's course didn't have anything tc do with personnel management, did it? A No, not at ail. 6Q So, I don't think I'm out in left field. I'm talking about learning about respirators. 8 What is the first thing you did when you :i o 3 took the job in the way of discovering your company's !| ii 10 !i documented history in writing? i i 11 j What was given to you to give you the benefit of their past experience, their past efforts, their 13 knowledge of the state of the art of respirators 14 when you took the job, if anything? If it was nothing, 15 just tell me that it was nothing. 16 ! MR. WHITTENBURG: Are you talking 1" ; about written materials or his talking 18 | to the people that he was working 19 with? MR. SWEARINGEN: I'm talking about written materials. A Okay, written materials. I asked for-and received the records cf the experiments that had 49 Q Is there a name ror that? Is it kept under a certain file or name or whatever? A Nc, they are just reports. Project: reports, I guess you would call them. Q You asked for the project reports on respirators that had beer, done in the past. A Sure. Yes. That's correct. Q Did you receive some? A Yes, I believe I did. Q Can you identify the ones that you received? A Not anymore, no. I don't remember. Q If you went home today and made the same request - "I want to see the project reports that were available to me when I took this job back in 1976" - could they give them to you? A I would have to find out by going back and asking. Q Is there any problem for you to do that, if I ask you to do that and your company's lawyer has no objections to it? A You would have to ask Jo Ben about that. MR. SWEARINGEN: Do you have any problem with that, Mr. Whittenburg? u ; rrr-\ Vhua G-V anr] made available to him when he took this job in 1976. I would like to see them sc that I can examine them and reproduce them. MR. WHITTENBURG: Well, subject to their being mostly irrelevant to what we are talking about today -- As I understand it, they were project reports of what everybody in the lab or wherever were working on back then. I don't think that there would be a problem, if you can identify what it was that they were working on then. MR. SWEARINGEN: Well, let's ask him what they were relevant to. I assumed that they were relevant to the development of respirators. (By Mr. Swearingen) Q What were these project reports - what did they address themselves to, to your recollection? A Which products or -- Define it for me a little better. That's a very broad question. Q I know that it's broad. It's a broad subject, so that requires bread questions. information to help vcu learn about respirators from your employer, I want to knew what they gave you. You told me that they gave you some project reports. Your lawyer has said that he doesn't know if they are relevant to this lawsuit or not. You can help us there. Were they project reports about the development of respirators by your company? A Yes, that's what they would have been. Q Can you tell me about how many of them there were. A No, I don't remember. Q Did you read them? A The ones I requested, yes, I read them. Q How long did it take you to read them? A You can read them in aday. MR. WHITTENBURG: Each one? THE WITNESS: Each one, yes. (By Mr. Swearingen) Q Did you request those things in writing? A No. Q Can you give me an estimate as to whether there were three or four or thirty or forty? How ] there. C I assume that those ten project reports 3 related only to work done by your company and not 4 other outside people; is that correct? 5A Yes, that's true. 6Q What other written materials did you receive to learn about your company and its business in the 8 manufacturing and developing of respirators, if any? oA In the manufacturing and development of 10 respirators and that subject alone? 11 Q Let me tell you for purposes of this deposition 12 I am not particularly interested in your work as 13 a personnel manager. Your lawyer presented you today 14 as a person from 3M who knows all the technical 15 information about the respirators that you make. 16 MR. WHITTENBURG: No, that's not right. 18 (By Mr. Swearingen) 19 Q In particular, the 8710 and 8500; is that 20 right ? 21 MR. WHITTENBURG: No. ' no MR. SWEARINGEN: Tell me again 23 what he is presented for. )un r.r ti " ^ Km r t Tis* 3710 4 8 9 10 for what he is. 11 MR. SWEARINGEN: A personnel 12 manager? I am not interested in personnel 13 management practices. 14 MR. WHITTENBURG: Tom, if you 15 don't want to ask him about that, 16 you don't have to. But part of his 17 job is personnel management. So, 18 you knew, if you don't want to know 19 about that, that's fine. If you want 20 to know about the other, then ask 21 him about the other. You haven't hn asked him about the other yet. 23 MR. SWEARINGEN: I'm going to. MR. WHITTENBURG: Fine. 1 n 3 4 Manager of the Occupational Health & Safety Products 5 Division; is that correct? 6A That's correct. Q Are there people presently in your Department 3 that have superior technical knowledge about the 9 8710 and the 8500? 10 A Superior technicalknowledge? 11 Q Yes, sir. 12 A I'm going to have to ask you to define 13 "technical". Do you mean technical in terms of ------ 14 Q (Interrupting) All right. I'll explain 15 it to you. 16 A Okay. ^-- li Q We have talked for 30 minutes or an hour 18 about how vcur job has been both technical at times 19 and at other times primarily managerial or personnel 20 management, so to speak. 21 A v es . 2 Q As between those two - that's a distinction 23 I'm trying to draw - you have told me that up until t-h-s date, for the last 10 vears with this company, 1 management. And you sa; 2 to one of my questions - you said "taking people 3 who have more technical expertise than I do and directing 4 them to a certain company objective." Now, that is true, is it not? 6A No, sir. I never said "more technical expertise than me." I said "people with technical 3 expertise," if I remember correctly. 9Q We can read your deposition. 10 A I think that's what I said. 11 Q Well, let me rephrase the question. 12 Are there people in your Department right 13 now that work under your direction that have more 14 technical knowledge of the 8710, about its development, 15 research that went into it, and what it is today, 16 and the 8500, than you have? i: A In my technical service group, no; that 18 wouldn't be true. 19 Q You have at least as high or higher knowledge 20 technically than anyone in your group? O- 11 A ~>o Q In technical service, yes; that's true. Is there anyone in any other Division of 23 your company -- You keep saying in the technical i service, technical service -- Is there anyone in o 3 4 6 8 q 10 11 12 13 14 15 16 MR. SWEARINGEN: (Interrupting) 1" It's very obvious what I want, Jo Ben. 18 Does anybody here misunderstand what 19 I want? 20 MR. WHITTENBURG: Do you want O ' to take a show of hands? You know. 0 I'll help you, if you want me to23 There are people in research and development in the lab, and they have I THE WITNE Sure 1 MR. WHITTENBURG: And you work 3 with them. 4 THE WITNESS: Yes. 5 MR. WHITTENBURG: As a liaison 6 between them and the marketing people? THE WITNESS: That's correct. 8 Yes . 9 MR. WHITTENBURG: Does that give 10 you any idea? II (By Mr. Swearingen) 12 Q My question is very simple, sir, and I'm 13 not worried about Mr. Whittenburg understanding it. 14 I'm worried about you understanding it. 15 All I am asking you, sir, is do you know 16 of a man, a living and breathing human being who 17 works for 3M Corporation, that knows more about the 18 research, development and the use of the 8710 respirator 19 and the 8500 respirator than you do? 20 A Research, development and use of that product 1 in the field; someone that knows more about that 0`"> than I do? 23 Q Yes. I would say not, not covering that whole 1Q I'm net talking about just your Department o and Division, but the whole company. JA In the rest of the company I couldn't tell 4 you. I have no idea. Q That's fair enough. You are the man that 6 I want, if that's true; okay? A Yes. 8Q What material doc you obtain to educate 9 yourself about respirators, besides that furnished 10 to you by Mr. Pritchard and the project reports that 11 you ordered and were furnished? 12 A There's - the titles, I can't remember; 13 but they are industrial hygiene books that you can 14 buy. They are, I believe, standard works - principles 15 of industrial hygiene books. 16 Q Did you buy any bocks? 17 A I personally did not buy them. They are 18 owned by the company. We order them, what we need. 19 Q Did you order seme books? Did you call 20 the purchasing agent and say, "I want these books"? 21 A They were already there. Oo Q Do you remember the names of any of them? 23 A T -4 ^ They were industrial hygiene texts. No, roma^hpr the titles of them. hycier.e textbooks that relate to respirators to n knowledge ? 3A I don't knew. 4Q Can you name any author for me of an industrial hygiene textbook that specifically relates to respirators? 6A Specifically relating to respirators, no, I cannot. 3Q Not one author? 9A That's correct, sir, not one. 10 Q These books that your company had available 11 to you, these industrial hygiene textbooks, did you 12 read any of them? 13 A Yes, the part on respirators. HQ Any other written information that you 15 obtained to educate yourself about respirators? 16 A The health standards as they existed from 1" OSHA, what they required in respiratory protection. 18 I had to become familiar with the NIOSH criteria 19 documents as they might apply to our respirators. 20 Q Did you, in fact, read these documents n i and familiarize yourself with them, or did you ask r\n someone to do it for you and tell you about them? 23 A n As necessary, I read them myself. Did you request or direct in writing any for you? In other words, did you sit down with John' Doe and say, "John, run me a research on OSHA and ! NIOSK regulations and send me back a report on how | they apply to us"? A No, I never did that. Q Did you do that as to any area of inquiry; that is, direct someone under your supervision to dc a study or research for you and report back to you? A Yes, I did several times; yes. Q In what areas did you do that? A I can remember specifically having a summary done for me; and, therefore, also for anybody else's use on the noise standard that OSHA was putting out. It doesn't have to dc with respirators, unfortunately. Q Did you do that when you had taken this new job? A No, that was only two or three years ago. Q I apologize, but I'm still back in your educational process. I'm back when you first took this job in 1976, sc we can limit the inquiry to that. Did you dc any of that at that time; did vmi h,= vo snvnnfi aive vou a summary or do any research 1A Yes, because on a monthly basis they wou o write summary reports of what they had accomplished 3 that month. So, yes, I did. 4Q Mv question isn't clear to you or something. I'm not just talking about periodic summaries of 6 work done. I'm talking about where you requested a certain individual to study, research or gather 8 information for you and report back to you about 9 matters relating to respirators in your effort to 10 become educated. 11 A No, not in that sense. I would go find 12 the material where it was and read it myself. 13 Q You have mentioned the textbooks, the courses, 14 the company reports that we talked about earlier. 15 Was there any ether written information 16 that you went to and read, yourself? 17 A I think I said the NIOSH materials, the 18 OSHA regulations. Those are the things that I went 19 and looked for. 20 Q Now, would it be fair to say that other 21 than those things, you did net read anything else r'O in connection with your efforts to learn what you 23 felt like you needed to know about respirators? 24 A No, sir. did not, because it was Are 1 nA Because that was development, and that's 3 in-house learning processes of the proprietary processes 4 on how we build our respirators, to make filter media 5 and to make the whole thing. That's an internal 6 type learning which would only be available to people inside our Division. 8Q Mr. Whitter.fcurg keeps referring in this 9 deposition to what you learned from other people 10 by word of mouth, what they told you. n So, give the Jury the benefit of what you 12 can remember in your efforts to educate yourself 13 about respirators, about your company's history of H research and aevelpment on respirators, when you 15 took this job in 1976. 16 MR. WHITTENBURG: If he can 17 answer that, that's fine. As I understand 18 the question, you have asked him what 19 all everybody told him that was working 20 with him in 1976. You know, that's 21 going to take us a year for him to OO try to tell you that. I don't think 23 that he can physically do it. 24 (By Mr. Swearingen) 62 1 If that's what the Question is. I was going to ask you to rephrase it, because I didn't 3 really understand what you wanted. It had two segments, 4 I know, and it was hard to differentiate what you 5 were getting at. 6C I'm simply trying to cover the point that has been raised by your company's lawyer on two 8 or three occasions : that in addition to what you 9 read, you learned stuff from other people; okay? 10 A Ckay. 11 Q He brought that up and not me. I want 12 to know what you recall about what you learned from 13 other people. 14 I have asked you if you can name a certain 15 person that was instrumental in teaching you about 16 respirators, and you said that you cannot name one. A That's right, because there was no one 13 individual person. It was a group of people that 19 I got information from; that's correct. 20 Q Did you call a meeting of all your people 21 and say, "Fellows, I want a skull session here to on get me going in this field. Now, you all tell me 23 what I need to know"? 21 A No s not done that way. The way it before, and individually talk with each of the peo and find out what their projects were, how they were approaching them and what they were doing technically, what were their experiments, how were they running them, what were the resulrs, as against the stated objective, goal of that project. If you're asking when I first got there, that stated objective would have been already there because they were physically in the programs already. Then after that I would go very quickly and work with our process engineering groups, the people who controlled the processes of making our materials. And I can tell you now that you might as well not ask me about those because those are proprietary, and I can't speak about how that actually functions, how we make those things. Q What does "proprietary" mean? A "Proprietary" means a company secret, a trade secret. Q Are you versed in the law of trade secrets and company secrets? A All I can tell you is 3M does not allow me just to sit here and tell you about how we make ----- f-itp- media and things like that that I learned C You can relax, then, because 1 to ask you about any company secrets. 3A Ckay. Fine. 4Q What else aid you do? A I'm sorry, what else do I do or what else 6 did I do? C What else did you do? To summarize, you 8 told me that you went to each project manager. 9A No, I went to each of the people that worked 10 under me. 11 Q And you asked them about their project, 12 how it was going, what were their results and so 13 forth. 14 A How they were doing it, yes. 15 Q In other words, you said, "Are you getting 16 anywhere on your project; where are you on your project?" 7 ~ Is that what you did? 18 A Yes, that's correct. 19 Q And after that you went from there to the 20 people that have to make what these project people 21 tell them that they can make, and they have to work lO it into the real mechanics of everyday production; 23 right? n4 A That's correct, yes. 1 n requirements that you needed to get NIOSH or other 4 governmental agency approval? Was that your main 5 objective? 6A No, not at ail. Our main objective was to make a product as we saw it that the marketplace 8 wanted and then subset requirements of that are that 9 they have to be approvable, too. So, therefore, 10 that is only part of the thing that I was concerned 11 with, and that was whether or not they would pass 12 approval tests. It also had to be known that this 13 thing was acceptable by the work force by employers 14 and employees in the marketplace. 15 Q Bring me on through your work history from 16 '76 when you took over as Manager of soft goods, i 7 new product development. 18 A Chronologically? 19 Q Yes. 20 A To today? 21 Q A Yes. For about a year and a half I did that, 23 as I said. And then, again, I took over the technical 24 service group, the same function as now, the same 69 1 2 3 4 just a hiatus in there of one year where I was performing 5 the function of Business Development Unit leader 6 for our gas monitoring devices. Q Was that sort of a special assignment? 3A Yes. 9Q Was there any reason that you received 10 that assignment? 11 A I was part of the BDU - BDU meaning the 12 Business Development Unit. I was part of that BDU 13 as my job function was Technical Service Manager. 14 And that function is like rotated between people. 15 It will change periodically as to who the leader 16 is for that group. Primarily, it's -- The upper 1" Management of the Division uses that. Again, it's 18 more of a thing that you don't care about it too 19 much, but it's the personal management skills development 20 of technical people. So, that's where -- I did that 21 for one year's time. Then I came back to technical oo service for the last three years. 23 Q That one year had nothing whatsoever to do with respirators, did it? i as to how our products ac n work. It is not enough j 3 respirator and let it go at that. You have to know 4 how it works. So, yes, I keep talking to them, still 5 looking at what their projects are like; not from 6 a management standpoint, because I am not their manager anymore in new product development, but knowing what 8 they are doing and how it is going. 9Q Now your primary purpose is responding 10 to customer inquiries, deciding what you can tell 11 a customer that a certain respirator will do under 12 certain circumstances? 13 A That's one of the things we do, yes; that's 14 true. 15 Q I'm sorry, I may have forgotten; 'but what 16 are the other general areas of responsibility that 17 you have now and that you have had since 1978, other 18 than giving customers information about your products? 19 A We provide the sales training for our sales 20 force, the technical training and not the selling 21 skills type of thing. It's the technical training on that they need to be good sales representatives, for 23 OH&SP. We are also involved with the technical 1 ihings you would see on the box on how to do it. 2 That in aenerai is the -- It's information 3 transfer to our sales marketing and the customer 4 of all sorts. That's what we do. It's a two-way street, not just one direction. 6 We are also listening to our customers and others when they say, "Why don't you make this. We would 8 dearly love to have a product like that." We bring 9 that information back so that our R&D people can 10 see if it is possible to do. 11 Q If someone called a local representative 12 of your company and said that they needed so-and-so, 13 they would say to call your Division and tell them 14 what you need, these are the people that take the 15 information about what you need? 16 A Yes, that's true. We have a phone they 17 can call. 18 Q What is that number; do you know it? 19 A It's -- I would have to get the card. 20 The reason I say that - it's not that I don't want 21 to tell you - it was 1-800-328-1300, but we just 2 changed it. It's got a new -- We have cards that 23 we pass out to everybody, and I don't have one of T 1 them with me. So, I just don't remember what the Q Ivhat about customer complaints about your o products; are they directed to your Department or 3 some other Deoartment? 4A They are directed to us, yes. 5Q 6A Is there a number for that? No, they come written, usually. It's possible that a customer could call us and complain, certainly. 8 But there are some formal systems for that, too. 9Q Is there a particular person in your Department 10 that is charged with the responsibility of receiving 11 customer requests as to what their needs are, or 12 does just anyone pick up the phone and talk to them? 13 How does that work? 14 A No, there is one person that is on our 15 phone, our in-call phone, one person alone, other 16 than when he is being relieved or is on vacation 17 or is sick or something. Yes, there is one person 13 assigned to that. 19 Q Is he technically qualified? In other 20 words, he doesn't just take a message. He can really 21 talk to them about their needs? 22 A Yes, I would say yes, certainly. . 23 Q Does he make a record of those calls? T" nonsrai. ves. He will write down the 1 is as to whether he w: 11 make a record of it or not: oQ I understand that. I'm sure he gets a 3 lot cf trash calls tha t don'r mean anything. But 4 if it is a significant request that he thinks you 5 need to follow up on, for example, he makes a record 6 of that? A Sure. 3Q What dees he record it in, a book, a file? 9A A piece of paper. It would just have a 10 comment section on it. Customer "A" asked us if 11 we had this kind of respirator or that kind of monitor; 12 if we don't, why don't we? Gee, it would be nice 13 if we did - that type of thing. 14 Q If I wanted to look at those records, what 15 would I tell your lawyer that I wanted to see? How 16 would I identify them? Do we need to identify them IT any further than what you and I have talked about? 13 A I don't think so. That would be the in-call - 19 It doesn't have a name. It's just a sheet that is 20 used by the in-call guy. A telephone conversation 21 report, I guess, would be as good as anything. Q Do you keep those somewhere? 23 A They are supposed to be retained, yes. shmit when someone calls in with a 74 1 2 3 | complaint." We ask them to contact the sales 4 i representative that covers the area of the country | they are in, using the distribution system that our 6 products go through and our phone representative. There is a format that is written down that describes 3 what the problem is and how much the product is involved, 9 et cetera; who the person is and who the distributor 10 is, and it is given to us so that we can evaluate 11 the complaint. 12 Q You refer them to seme other person or 13 local sales agent or whatever to complain to; right? 14 A No, they have already complained to us 15 when we tell them to do that. We get our sales i 16 representative in touch with them, so that they can go through the formal procedure of getting the samples I 13 and going to see the person. 19 Q And that person files a written complaint? 20 That's required, is it not? 21 A Yes, it is required if -- It's our formal 22 complaint statement that they have. . 23 Q You don't keep a record of those calls n vnnr Division? 1Q oA Yes . No, I don't, because that would be calling 3 back and saying - leaving a message for the sales 4 representative with their in-call service, saying, 5 "Call this person, he has a complaint, so get ahold 6 of him and see what's going on." Q Well, it is mere complicated to complain 8 than it is to order a new product; is that right? 9A No, it's easier to complain, in fact. 10 Sometimes ordering a new product is difficult. II Q Do you keep a record when someone calls 12 and says, "Will this respirator do for a certain 13 purpose?" Are those calls recorded? that so-and-so 14 called and wanted to know if a certain respirator 15 was adequate for a certain job, and then you give 16 them some type of advice? 17 Is there a record made of the inquiry and 18 the response from your company? 19 A Yes, I believe so. 20 Q What do you call that? 21 A It's basically the same thing. It's the on same report scheme written down. . 23 Q O1 A And they are retained in the same manner? I believe that's right, yes. 1 xe( vcu would know what we are talking abo n you could get them; is that right? 3A I would know what you are talking about. 4 Producing them - you would have to go through ------ 5Q (Interrupting) Assuming that the lawyer 6 has no objection. A Yes . 8Q But you know where they are and you know 9 what we're talking about? 10 A I don't knew where they physically are 11 right now. I could ask. 12 Q From 1978, about, until now, what experience 13 have you had in the testing of your company's respirators? 14 A The experience I have is that I know what 15 tests are done. I know how they work, what they 16 measure. 17 Q Have you ever observed testing? 18 A 19 Q Many times. Would you tell me, before we get into the 20 testing -- There are a lot of technical trade words 21 that are creatures of the respirator business, are on there not? . 23 A 24 Q - Yes, sir. They have a particular meaning in the respirator ' '-------- J-it- i C I-n Vi<= shle 7 to communicate? 1A Certainly. 3Q First, would you tell me - based on your 4 knowledge - what are the different types of respirators, 3 generally speaking? 6 I'm not limiting it to the 8710 or the 8500. But if I as a layperson said, "Tell me what 8 you know about respirators and what different kinds 9 of respirators are there," what would you tell me? 10 A Being short and sweet on it, there are 11 two separate kinds: atmosphere-supplying and non 12 atmosphere-supplying. 13 In the non-atmosphere-supplying, you would 14 have quarter mask, half mask, full facepieces. Various 15 kinds of cartridges go along with that, whether they 16 are particulate, they might be gas and vapor ------ 17 Q (Interrupting) You have to slow down. 18 You have atmosphere-supplied and non-atmosphere19 supplied. You have quarter something. What are 20 the ... O) A I said under ncn-atmosphere-supplying, n there are quarter mask, half mask, full facepieces. 23 Q What else are there under non-atmosphere- 24 supplying? j- U ,, -3 1 then have either particulate filtratio "> several levels of efficiency, cr they 3 and vapor chemical cartridges on them 4Q Farticulate filtration in va: 5A Efficiencies. 6Q Are there trade words for those classifications? A For which classifications? 8Q The efficiencies, for the different efficiencies. 9A People refer to it -- Percent efficiency 10 would be what I would call it. 11 Q Is there a trade meaning to the words "high 12 efficiency"? 13 A Yes, there is. HQ Is there a word called "low" efficiency? 15 A No. 16 Q Is there a word called "medium efficiency"? i: A No. 18 Q Is there any other word like "high" efficiency 19 that tells us about particulate f iltration? 20 A No, not in the sense that you are saying 21 it there; no. in Q But there is a word that has a particular 23 meaning, and that word is "high" efficiency; is that 24 right ? Vi ratnr world WOUld 30 1 immediately lock onto a certain test that n that describes a so-called high efficiency filter, Q In also relates to the percentage of filtration. 4 doesn't it? ' 5A In a synthetic test aerosol that is used 6 to characterize that, yes, that's true. Q What is that percentage? 3A In percent efficiency, 99.97 minimum. 9Q And that's what we mean in the trade when 10 we say that it is a high efficiency respirator? 11 A As I said, yes, against a synthetic laboratory 12 test. 13 Q Does it tell you something about a certain 14 particle size? 13 A Yes, it does. 16 Q What does it tell you about that? 1? A It tells you that you are using essentially 13 a mono-dispersed particle that has its mean average 19 diameter at 0.3 microns - I'm sorry - it's .3 microns. 20 Q 2! A -in Q .3 microns? Microns. A millionth of a meter is a micron. So, if you talk about something is of high 23 efficiency, it means that it will filter out 99.97 24. percent of particulates that are not less than the 1 li ! A In general, that would be true, if ' 1 .*> thing is functioning correctly; yes. a__ 3 *Q Are we told anything else in the trade 4 when you say high efficiency, other than these two 0 things ? 6A 7 users ? Define "trade" for me. Manufacturers or 3Q 9A Well, the same lingo applies, I assume. No, it doesn't. 10 C It doesn't? ii A Not when you say does anything else come 12 to mind. It depends. If you are a manufacturer. 13 more things come to mind. If you are a user, probably 14 not. 15 Q Let's assume that I have a sophisticated 16 user and a sophisticated manufacturer. Do we use 1" the same language or not? 13 A Sure, you use the same language. You asked 19 me the meaning of those things, what it invokes. 20 I me an, I have no wish to fence with you. 21 If you are very, very knowledgeable about oo ! all the testing that goes on, it would also tell 23 you something about the pressure resistance of that 24 filter against a certain flow rate of air going through 81 1A I- tells you what 1 evels NIOSH wx^d^a 1 for getting certifications. 3Q What are these leve Is? 4A 5Q I would have to go and look at it. So, you don't know? 6A Net from memory, no I know in general about where the area is. 3Q As a layperson, am I to understand that 9 that is a rating as to how hard a person has to breathe 10 to get air to pass through this filter? LI A It relates to it,yes. 12 Q You called it levels of what? 13 A Pressure resistance, flow resistance; pressure 14 drop and flow resistance of air through it. 15 Q That just says how difficult it is to pass 16 air through the filter? 17 A That's correct; at a given flow rate, yes. 18 Q And you need to know that, because you 19 need to know how hard a guy has to breathe to use it? 20 A You need to know the flow rate for 21 certification. Yes, you do, because it is listed OO and specified by NIOSH. Whether or not that flow 23 rate has anything to do with the physiology of individual 24 people, I couldn't tell you. I don't know. 82 i or three questions to mean that tc you, high means cr.e thing; but maybe it means something else 3 to a sandblaster with a fifth-grade education? 4 . Is that what ycu are really trying to tell 5 me ? 6A What I'm trying to tell you is that's right, from the knowledge of what the high efficiency filters 8 that I knew about are versus somebody like that. 9 Of course it would be different. I know more about 10 what that filter is and the certification requirements 11 are for it than I would suspect the average person 12 out in the world. 13 Q You would non expect a sandblaster with 14 a fifth-grade education to understand all of these 15 things from the words "high efficiency" in your trade; 16 is that right? A I would expect them to evoke something 18 that says it's pretty good. That's just an opinion 19 on my part, since I don't know any fifth-grade-educated 20 sandblasters personally. 21 Q Do you knew anybody with a fifth-grade 2 education? 23 A No, sir, not a one. 24 C Let me ask you this: Do you put that word o 4 5 6 S 9 10 11 12 13 14 15 Q If you did, it would not mean much to him, 16 would it, based upon what you and I just talked about? l" MR. WHITTENBURG: Don't answer 18 that unless you know what is going 19 on in the mind of this mythical person. 20 MR. SWEARINGEN: He's talked 21 about what goes on in their mind, ->o Jo Ben . . 23 MR. WHITTENBURG: He has told 24 you what his opinion is of what "high efficiency" might evoke in the minds 1 o o1 4 you can ask him to speculate on it; 5 but it is just speculation. 6 (3y Mr. Swearingen) Q I interrupted vcu a few moments ago. We 3 had gotten down to the point under non-atmosphere- 9 suppiiea respirators; that under the quarter mask, 10 full mask and half mask facepieces and the powered 11 air purifiers you have particulate filtration. And 12 we have talked about these ratings. 13 What other kinds of respirators are there? 14 A There is also chemical cartridge respirators 15 under that designation. 16 Q Chemical cartridge? i. A Yes, sometimes known as gas and vapor. 18 Q What do we mean when we say a chemical 19 cartridge? 20 A That means a sorbent of some sort that 21 operates by physical or chemical absorption on the ->o surface of it, such that it can scrub out various 23 gases and vapors that are in the air that are being 24 pulled through that sorbent media. t rr\ 11 r* f' i^ors. under the 1 non`1 zrea 3A Yss, in the chemical cartridges that's 4 true. 3Q I'm a little confused, so I want to try 6 and tell you where I am. I am not interested in a cartridge that 8 will protect you against a certain chemical exposure; 9 okay? 10 I'm interested in the chemicals that are 11 used to treat your filters under certain non-atmosphere- 12 supplied filtration, that being a chemical that is 13 applied to the filter itself so that it will increase 14 its ability to filter out the objectionable material. 15 Do you use any chemicals on these filters? 16 A Yes, only in the chemical cartridges, though, 17 and not in the particulate side. 18 The chemical cartridge sorbents, many of 19 them have chemicals in the substrate. It's like 20 a support media, if you will. Chemicals are treated 21 onto the surface of the support media, and they are ->o the things that are locking onto the gas and vapor 23 molecules as they come through. 24 Q I would assume that we are not really interested a c in a chemical cartridge thing for a sandblaster, 1 are we ? nA Not at all. 3Q T4 A Net generally speaking? Net generally, no. 5Q Is part of your job with 3M to stay abreast 6 of your competition? A In general, yes. We don't particularly 3 go cut of our way in that area, no. 9Q Do you know whether or not some of your 10 competitors treat their filtration materials with 11 certain chemicals to enhance their filtration qualities? 12 A I don't know. 13 Q Do you know anything about the pros and 14 cons of treating your filtration material with certain 15 chemicals to enhance their filtration qualities? 16 A Tell me what "pros and cons" means. In 17 what sense? 18 Q Reasons to do or not do it. 19 Has your company ever considered treating 20 the filtration material with chemicals to enhance 21 their filtration qualities? no MR. WKITTENBURG: At what time? 23 He just told you that they do it on the gas and vapor. ms swfantM(TRN: No. not those. 87 I n 3 4 You told me awhile age that they don't 5 have any chemicals on rhem, didn 111 you? 6A Yes, that's "ITUS ; they don't. Q Have you ever considered putting chemicals 8 on them to enhance their filtration qualities? QA Nc. 10 Q Dc you know of any chemicals that are used 11 by your competitors to do that? 12 A In particulate filters, no. 13 C We are down to chemical cartridges. Are 14 there any ether types of respirators that you would 15 define to a layperson? 16 A There's a whole other side of atmosphere- supplying. 18 Q What would they be? Do you all do any 19 of that? 20 A Yes, we have a line ofatmosphere-supplying 21 hoods and helmets. 22 Q What doyou call them? 23 A Generally, they are called the personal 24 environmental systems - PES for short. to Trn i ^ ail been in that field? at was bef 1 was 1974, I think. 3 think it was right around in there. i* C Are you satisfied that that was a response cr. the part of your company to certain Government o regulations that were passed to protect workmen? A aQ What, that we got into that business? Yes. You started making air-fed hoods 9 because the Government said that there were certain 10 things that you could not make a person do unless i i you gave them an air-fed hood. That's why the market - - 12 You started getting calls on this 1-800 number, and 13 they said they had to have an air-fed hood for the 14 job, and do you all make them. 13 MR. WHITTENBURG: Are you asking 16 that as a question, or are you theorizing that that is what happened? 18 MR. SWEARINGEN: I am asking 19 him if that is what happened. 20 (By Mr. Swearingen) 21 a Your company responded to Government pressure 22 to make a new product, didn't they? 23 A I have absolutely no idea if that is true 14. or not. n You don't? c You never thought about it? Have I ever thought about it? Yes . No, I haven't thought about it because ... How many air-fed hoods do you make? We make basically three. Each one of these then has a subsection, too. There is a group that is based on - I'll call it a hard fiberglass helmet shell, one that utilizes a strictly scfr approach. Tyvek is what it is, duPont1s material. C Which do you make that the sandblasters use? A The hard fiberglass type. Q The others would net be for sandblasting? A No. C Maybe for painting or something else? A Yes. The powered air purifier on the other side has a system setup that allows it to be used in sandblasting. But in the air-fed ones it is strictly the fiberglass helmet type. . Q Are you familiar with your air-fed hoods? A Yes. n Are vou familiar with the requirements 1 as to the hood being supplied with a cert T and certain pressure of air to operate properly? A Yes, I know that's true. 4. Q 71 A Do you know what the required volume is? The minimum is 6 cubic feet per minute. 6C Does your air-fed hood contain any kind cf monitoring device or warning device built into 3 it, to let a user knew whether or not he is getting 9 adequate air supply? 10 A No, there is no formal warning device inside 11 t he he line t, 12 Q There is no valve or piece of equipment 13 that shuts it off or sounds an alarm or whatever 14 if his air supply drops below the minimum requirement? 15 A If that is true, it would involve a compressor 16 failure for the air supply, of which we are not a 1l -l part in our product line. And those are mandated 13 to have shutdown alarms or nich-temp alarms, if that \9 is what is going on. 20 So, yes, there is a way that a person would 21 knew that his air supply was being shut down. OO Q Do you knew what percentage of the market 23 your company has in the area of respirators? 24 I took a deposition of a Bullard person in San Francisco. He told me they probably manufactured 91 3 4 research and development for your company, have you 6 ever learned through your company or any other source as to generally what percentage of the market your 3 company has in the field of respirators? 9A All of the respirators we sell? 10 Q ^j A All of them. All of them? 12 Q Let's say in the respirator business generally. 13 A No, I don't know what that number would 14 be. 15 Q Under your definition of different kinds 16 of respirators, I assume that the 8710 and the 8500 come under the non-atmosphere-supplied description; 18 is that right? 19 A Only the 8710. The 8500 isn't a respirator. 20 Q What is it? 21 A ''2 Q 23 It's a nuisance dustmask. I'm going to come back to that in a minute. The 8710 - does it come under your definition 24 as a non-atmosphere-supplied respirator? l`-Tint;nhprp- SUTOClvind , yes; that's correct. A hair mass, ana on t. and nor gas and vapor 3r in the fielc 4 atmosphere-supplied, do you have any idea what percentage 5 of the market you have in the United States of America 6 on those types of respirators with the sale of your model 87107 3A No, sir, I don't. gQ You don't have any idea? 10 A. None whatsoever. i 1i Q Whether you have a very small part of the 12 market or a very large part of the market? 13 MR. WHITTENBURG: He just said 14 he doesn't have any idea. 15 A I have no idea. 16 C You don't knew if it's 1 percent or 50 percent? MR. WHITTENBURG: Don't answer 13 that. That's repetitious. 19 (By Mr. Swearingen) 20 Q Let's talk atcut the 8710. What is it? 21 A Do you want to narrow that down, what is 22 23 Q 24 A n What do you call it? We call it a half mask particulate respirator, What is it good for? 1; A i( 2i It's approved for use againstl^'^wnd^^^ 3i i Q I'm not asking what it's approved for. I don't care what the Government says; do you understand? o We can forget what the Government says unless I ask 6 about Government regulations. I'm asking what it's good for in your opinion. 8A What it's good for is particulate filtration q against airborne particulate contaminants that are 10 net exceeding 10 times the threshold limit value 11 in concentration, and that have threshold limit values 12 of not less than .05 milligrams per cubic meter of 13 air. HQ Can you give me a layman's translation 15 of that? And I'm not being a smart aleck with you. But what different products are commonly encountered that you know of that you recommend the use of this 18 mask for? What do you tell people when they call you that it's good for? What dc you tell them that 20 it will protect them against? A We don't ever answer a question like that, ">o not the way you stated that. Nobody calls us and 23 | says, "Tell us what the 8710 is good for," and you 24 ; sit there and rattle off a list. They will tell 1 ' c ~ have this, which product do you recommend?" 94 C I guess that' the same question. 3 What are some of the things that you recommend + the 3710 to protect against, common everyday things that we laypeople will understand? A. Grain dust is one. Cotton dust is a very normal use for that kina of product, tobacco dust, 3 any of the lead dusts, for instance: iron, zinc, g any kind of metal dust that does not go below 10 .05 milligrams per cubic meter of threshold limit n values. * 9 It's a very broad range of things that 13 a dust/mist respirator is recommended for. 14 C A dust mask? 15 A A dust/mist, m-i-s-t, respirator; dust ! 6 and mist. It is usually just written dust slash mist. I 7 You would see it that way. !3 Q Any other common irritants that you would 19 think of that you have in the past recommended the :o use of that respirator for? 21 MR. WHITTENBURG: You just injected "irritants" in there. 23 MR. SWEARINGEN: I didn't mean 24 that as a magic word. "Other things." )C MR. WHITTENBURG.- Go ahead and answer the question be a magic were. I don't know. MR. SWEARINGEN I don't mean 4 it to be. (By Mr. Swearingen) Q You have listed several. Can you list any mere for me? 8A Yes, it is utilized in places like foundries, o for instance, for core materials that are shipped 10 and ground out that contain -- Well, the hazard generally in these kinds of things might be silica. It might ' O also be a metal dust, too, depending on what they 13 are doing. 14 It's almost easier to tell you by exception what dusts and mists they are recommended for. Dust/mist 16 respirators are not used for fumes, for metallic z umes * 18 Q You didn't mention sandblasting. 19 A That's right. 30 C Is it recommended for sandblasting? 21 A For the person who is doing the sandblasting himself, no. . 23 n What other people are there? Are there 24 people around sandblasting that you would recommend f or ? 96 n i -t y 6 might be in the area - these are possible candidates for wearing a half mask dust respirator. 3Q If I called on your 1-800 line and told 9 veu that I was a sandblast contractor and I wanted 10 something from your company to protect my pot tenders, 11 what would you tell me? 12 A I would ask you first whether you knew 13 if this was going to be an inside or an outside job; 14 where this pot tender was going to be. 15 Q I'm going to tell you that this is an outside 16 job in Jefferson County, Texas, in August, sandblasting i: a tank from the outside. 13 A Ckav. [9 Q And the pet tender was going to be in the 20 general area of the blaster. A 21 I would probably ask you what you mean ->n by "general area", then. Do you mean 10 feet or 23 100 feet away? Well, I don't know. They work within fairly 24 <- i n o <4 i stances . I cuess. I don't really know. 1 Co you knew t A I'm net aware 3 drstar.ee. That's why we ask. 4Q Say within 50 cr 100 feet. 5A If it's 50 or 100 feet, we still strongly 6 recommend that some kind of air sampling be done. But the likelihood of the airborne concentration 3 being 100 feet away, especially if it is upwind of 9 the blaster, it would be unlikely to go over 10 TLV's; iO tut it should be checked. And if that was true, then the half mask respirator might be apropos for that. .3 Q What if he said, "Man, I don't know how A to check for concentration, and I can't get anybody 0 cut here to do it"? .6 A We would probably ask him if he has gone to his Department of Public Health and asked them; 8 if he has gone and looked for a private industrial 9 hygiene consultant that does that all the time. :o Q I'm just asking you to assume that he doesn't have the benefit of that. He either can't afford 'O ir or it is not available cr something. What would :3 be your advice? A 4 The advice is when the concentration levels 5 are unknown, or at least to the point where you are i i 1 almost certain that they are coina to wav or the other, because of past experience, then '**- 3 you would assume the largest hazard. And the assumption 4 that we would make there is that his hazard would 3 be the same as the blaster's himself, with the exception 6 that he would not have to be protected with a blast helmet for rebound. He would run an air supply off 8 the same system that the blaster has, only use one Q of the other hoods; probably one of the lightweight 10 ones, like the Tyvek type. 11 Q Have you personally ever had the opportunity 12 to suggest or recommend different uses of your product 13 line to a sandblaster or a sandblasting contractor? 14 A Myself personally, no. At least, I don't 15 remember. I don't think so. I don't think I have. 16 G Have you ever had the personal experience r of talking on that 1-800 number to anybody about 18 your product line - you, personally? 19 A Yes, I have. 20 Q What have you talked about? 21 A TO C I don't remember. You don't remember? 23 A 24 you. o Every call is different. I couldn't tell Is there any particular person in your 99 Department ihat has the assianment that mo slates to the problem of the sandblasting industry? In Technical Service? Q Yes. Say if a sandblaster calls, is there any particular person that you will have talk to that guy? A No, we don't have an in-house expert on sandblasting, in that sense that you're talking about. Q Do you have any in-house experts in any particular field? Ey that I mean when you have an inquiry about any particular industry, is there anybody in your Department that you would go to with that inquiry to get a response? A If it's an in-depth discussion of what the respirators really do, yes. We don't expect the person on the in-call number to do that. One, he may not be able to, to get really down deep in an individual subject; and, two, that is not his job, anyhow, because he has to be available to talk to a lot of people. So, yes, ir. Technical Service there would be a person - say you want to talk about blast hoods that has that as their job responsibility; that's vi nris of products they work on as their main 1 iSDonsibility. Q What areas are these? I mean, can you 3 he In me? 4 Who is the person that handles sandblast 5 hoods ? 6 First I want to talk about the sandblasting industry. I'm just asking you if there is anyone 8 in your Department than you go to for a particular 9 expertise with a sandblasting industry question about 10 your product line. 11 MR. WHITTENBURG: Not limited 12 to sandblasting contractors like you 13 asked before? 14 MR. SWEARINGEN: No, not limited 15 to that. Any person that wants to 16 know - that has a particular complex 1" problem or whatever. 18 A Generally, that would go to the person 19 that I have assigned to our PES group of products 20 as the Tech Service Engineer for that. n1 G Does that person have a name? lo A Yes, sir. . 23 Q 24 A 1C C What is his name? Bill Albrecht. Bill . . . Albrecht. How do you spell chat? A A-i-b-r-e-c-h-t. Q How long has he had that area of responsibility? A About a year and a half now. Q Did someone have it before him? A Yes. Q Can you tell me who that person has been in the past, since you've been there about 10 years? 10 A The person before him would have been Barry 11 Dayton - 12 Q Is he still with the company? 13 A Yes, he's still with 3M. ' 14 C No longer in your deal? 15 A No longer in curs. 16 Q j How long did he have that responsibility; i - do you know? i 18 A A couple of years, perhaps. 19 i Q Do you remember who had it before him? 20 A Leo Gehlhoff, G-e-h-l-h-o-f-f. O7 Q About how long did he have it? on A. Again, a few years. r. 23 Did someone already have that responsibility J i i when you took your job? a vo<; t believe sc: but -- When I took the cb as Development Manager, CH&S?? s* When you took the same job you have now. * .--L Oh, yeah, that would be Leo. That was Lee? A Yeah. W Do those guys keep any record of inquiries cr work that they do in response to customer questions or requests? A I don't knew. I don't remember if they do or not, if they exist. C The guy on the phone keeps a record of these little inquiries? Yes . Q I forget what you called it. It's a little daily sheet or something. A Yeah. Q Eut you don't know if they keep a record of moi:e complicated inquiries of a specialized nature? A No, I don't. They might. Sometimes they do, and sometimes they may not. I couldn't tell you if: they have them all the time or not. r V As a part of your job, did you ever review the records about customer complaints or customer requests that came into your Division? Did you ever sit down and shuffle through 0 as they cone through. Q That's after they go back and come the 8 route of filing an original complaint? 9A Yes, in that sense; yes. 10 Q Because there is no record made, as I 11 understand, in your office when the call comes in, 12 other than a record for them to call the Sales Division 13 or whatever? 14 A That's correct, yes. 15 Q Do you ever shuffle through the customer 16 requests to see if they have been taken care of? 1~ A It's not a question of being taken care 18 of. I'll find out about those because the customer 19 request will have a telephone conversation report 20 written by it and addressed to someone in the R&D section, lea's say, that "Here's an idea from a customer. 21 I would be copied on that and see it. _ Q Dc you recall ever seeing any kind of memos or reports generated by Mr. Gehlhoff, Mr. Dayton ii or Mr. Albrecht that directed themselves specifically o 3Q Do you know what silicosis is? 4A In general I know what it is, yes. 32 In general what do you think it is? 6A It's a lung dysfunction that essentially cuts down on the ability of a person to transfer 8 oxygen from the air into hrs bloodstream. It's a 9 general blocking off of the small airway passages 10 of the lung. II Q Do you know what causes it? 12 A Silicosis? 13 Q Yes. 14 A Silica. 15 Q You call it a "dysfunction." What's that? 16 A A "dysfunction",meaning thatthe lung i: does not function in a normal, healthy manner. 18 Q Do you understand it to be a disease? 19 A I understand it to be a disease. I couldn't 20 comment on what it really is because I am not a physician. 21 That is what I understand it to be, yes. On Q Everything thatyou knowaboutsilicosis is something that someone told you or you read because you are not a doctor? 1w -> A defined 3C And not as a lung disease. Do those two 4 words mean the same thing to you? 5A They may not. Dysfunction could be short-term, 6 in a sense cf being an acute thing, rather than a chronrc, long-term thing. 8 1 understand silicosis to be a long-term q type problem and not something that comes and goes. 10 Q Do you understand it to be a disease or 1: a dysfunction that is net only long-term, but one 12 that is progressive and may continue, even though 13 the person is no longer breathing silica? 14 A No, I was not aware that that's true. 13 Q Do you understand it to be a disease that 16 can be disabling? 17 A Yes. That I know. 18 Q Tell me when you first gained your knowledge 19 about the word "silicoses" and what itmeans to you. 20 A > 1 C The first time? Yes. ~>o A It would have beenback - most likely -- 23 Yeah, it would have been back when I was in the New 24 Product Development seer ion. When reading through r*t +* O r/n i' come across and ask what You can lock them up in industrial hygiene L t0X pi 3A I really don': recall whether I looked X it up cr asked someone. 5Q You don't recall ever reading anything 6 about the disease of silicosis, outside of a Government regulation that may refer to certain words? 8A gQ Reading about . . . About what is silicosis. Did you ever 10 seek out a book of any kind and sit down and read to find out what silicosis is? 12 A No, I don't think I ever did that. 13 Q For that matter, I assume that you haven't 14 done that on any lung dysfunction or disease? 15 A That's correct. 16 Q Does your company have a person, a medical-type person -- You mentioned way back that something was 13 part of the Medical Division or whatever. 19 Do they furnish you with any medical expertise, 20 a person who understands diseases, to come in and 21 tell you what they are all about? to A I would suppose they would, if we asked lO them. 24 Q You have never asked them? never any need to in my view when you are developing a respirator, way we look at it is we know what it is we are trying to stop from getting into the airways of a person, and it is the province cf the physicians and epidemiologists to knew what happens if you don't 6 i do that; i f 2 i. gets 7 person. 8 It my view s not what a respirator 9 manufactu rer i s cone 10 concerned wi th keepi 11 there. What *C. hey do 12 other people ' s provi define and what the problems ,3 are after th at takes 14 | f 15 I iII 16 i1 1 1" ! r, I take it your view r he only is that: s 2 1, ca is ha silica* 18 i !1 19 | i i 20 i i 21 ; ! 22 1 i 23 !1 Ba sically, We are decali ng with to a person; so, the method cf oo ntrol. Q Yo u do n't is within yc ur respoi ith the degree of harm, or the severity of dysfunction - -- j +. ,, Ifnnw 10 a filter tc stop that size and you do that. Would that he acorrect statement? A Almost. Q Tell me where it is not correct. A By law, by mandate - and I'm going to stay with the law on this answer, even though you said you didn't want to talk about Government stuff. I'm going to stay with the law, because they do mandate that there are certain kinds of particulates that are very dangerous materials: arsenic being one cf them, silver, beryllium, radioactive materials like plutonium. Those kinds of materials are very highly hazardous in minute quantities. Therefore, they will mandate what kind of respiratory protection is required for those specific items. We have no choice. They are anything from a high efficiency air-purifying respirator all the way up to perhaps self-contained breathing apparatuses. Now, when you come back down to other than those kinds of categories, then, yes, we are concerned with how -----Q (Interrupting) Are we talking about the law or your view? wc >-r-o coming back to that. You asked me are we only concerned about wr7D<*4:he thong is and what size it is and not concerned with hew harmful it might be. G I'm really just asking -- I summarized your answer, in which you told me that your only concern was whether or net it was hazardous, and you left the rest of it up to doctors and industrial hygienists and what have you. Now, I just want to know if that is how 10 you personally feel about it or not. li MR. WHITTENBURG: He was trying to explain it to you when you interrupted 13 him. H MR. SWEARINGEN: I'm not sure is ; .. I 10 what he was trying to do. (3y Mr. Swearingen) Q Go ahead. 13 | I 19 | A What I'm trying to do is tell you, yes, cur main concern is the design of the respirator 20 II 21 itself, hew it functions. Our concern also in recommendation areas would be what are we dealing io with; whan is the proper thing to match to the contaminant at hand. 24 I What I was saying before is that to design what the actual I j I 1 health effects of silica is in the lung, beyuxl__the 7 fact that ycu want to stop it; chat you don't want 3 it to be in there. But to know what actually happens 4 to the person's lungs after the fact and to know 5 the course cf the disease and things like that, that's 6 what physicians are concerned with. You know, how that happens, how they might be able to treat that 8 disease when someone gets it. Q So, from our point of view, we are looking 10 at the article as a particulate solid in the air. 11 Hew do you stop that from getting into the airways 12 of a person's body; how do you do that. We do it 13 with filters, and that's how we do it. So, I would 14 say yes, that is our primary concern, certainly, L o because we are making respirators. That's what we 16 are doinc. {AT THIS POINT A BRIEF RECESS !8 WAS TAKEN, AND THE PROCEEDINGS THEREAFTER 19 RESUMED AS FOLLOWS:) 20 (By Mr. Swearingen) 21 3 Mr. Scheel, you told me a few minutes ago on that an 8500 was not a respirator. 23 A 24 Q That's correct. That's what I said. What is your definition of a respirator? - --- = n i ?flticn, we differentiate -- 1 A respirator is approved for use against matv>~i4_ls^^^ o that can potentially be harmful to your health if 3 inhaled. And I use "materials" in a broad sense; i anything that respirators are physically functioning 3 against stepping. "5 A non-respirator - a nuisance dust mask, we call them - is essentially a - you might say a 3 convenience item to a person. It is useful in the Q area where the material that is possibly being inhaled 10 will not harm you, at least as far as anyone knows - 11 the current state of knowledge of that that it will 12 not harm you. But it might be irritating. It gets 13 in your nose, and you don't like the feeling. It 14 may cause you to sneeze or cough, something like 15 that; similar to maybe reactions like ragweed pollen 16 or when people mow the lawn. You know, they will 17 get nasal irritation. 18 A nuisance dust mask can scrub out a fair 19 amount of that material cut of the air and go a fair 20 bit against alleviating that kind of irritation. 21 Q When did ycur company develop and first oo sell the 8710? . 23 A The first sale of the 8710 to my knowledge 24 was in 1972. -- -- r\ --| A I' m not certain, It was the earl cr somewhere in there, but that's just a guess. I'm 3 net certain. 4Q Do you know anything about the history 5 of the development of the 8500? 6A Anything? Yeah. I have heard some things about it. 8Q So have I. What have you heard? I heard 9 a funny story. Is that the same story you heard? 10 A The story I heard is the development people 11 were working with bra manufacturers for inner liners 12 for a bra made out of nen-woven materials. And for 13 whatever reason, that did not work out. But then ------ 14 Q (Interrupting) I take it that a bra 15 manufacturer apparently called 3M or did you all 16 make bras or what? i4 --. A I don't knew. I have no idea. 13 Q Okay. Go ahead. 19 A I couldn't even tell you if the thing is 20 really true or apocryphal. But this was what I was 21 told took place. ->n Q Whether it's true or what? 23 A 24 Q Apocryphal. What does that mean? ' - - i ^ not - just a fancy story. 1 11 *> 3 out. I don't know why. But that never happened, 4 that use for thus molded non-wcven. And then by 5 a source - and from who I have no idea - somehow 6 the jump was made that the melded non-woven could in fact be a filter of sorts against certain kinds 3 of materials. And it ended up being an 8500. 9Q Was it originally thought that it would 10 filter out certain materials that could be harmful 11 to you? ;^ A I don't know. 13 Q You don't know that? 14 A No, I don't. 15 Q Have you heard it referred to as the "tittie 16 mask"? i: A No, I have never heard that. 13 C You can add that tc your story. I have : 0 heard it. 20 MR. WHITTENBURG: Why don't you tell him your story. ;3y Mr. Swearingen) "l o C I've been told by people that have actually 1 i used these thongs that in the early years they still --- + 1 116 1A 2C Me, I never heard "hat. Dc you know how long it was sold in its 3 original configuration, whatever it may have been? 4A A.re you saying it was a different configuration 5 versus what it is todav? 6C The configuration of a bra cup. A I don't know. I don't even know that it 8 was sold that way. Q You have nor heard anything in the story 10 about that? 11 A No. 12 Q Dc you know when they began to place a 13 metal clip on either of these respirators? 14 MR. WHITTENBURG: Are you referring 15 to the 85C0? 16 MR. SWEARINGEN: Either one of K 18 19 20 A them. MR. WHITTENBURG: As a respirator? MR. SWEARINGEN: I'll refer to them by numbers. The 8500 nuisance dust mask, no, I don't m know when it got a clip. First off, I don't know 23 if there was ever a time that there wasn't a clip * cn it. I don't knew that. Sc, therefore, I couldn't ^=it-hp ruestion when it first went on. Tie 8710, to the best of my knowleo^s ri has always had a metal nose clip on it from the first time it was sold. 4Q * take it that none of your review of any 5 of these written documents - such as project reports 6 or anything - refer tc this information that you have talked about that you have heard? 8A That's true, because my group didn't work o on anything on the 8500. It was an existing product 10 and not a new product. 11 Q Tell me about the testing of both these 12 products and your familiarity with it, how it's done 13 and what you have seen and what you know about it. 14 A Okay. On the 8500, that product is - has IS specifications set up for the types of fibers in 16 it, the blend ratio of those fibers, the weight, i - the amount of resin used as a stiffener for the shell, 18 how much is putyn there, and then final - what we 19 end up with in the end is there are a lot of dimensional 20 type specifications. You know, it has to be a certain size and the ribs have to be running a certain way - ">n which is by measurement, distances, this sort of 23 line, ") * Then we measu: ihir.es like flow resistance i ., , .u 1 it nac alrsacy been aevelopec. I ^j i1 A The purpose is ongoing quality control. 3 1 Ev:= ry lot of materials than we make are subjected rt O 4 quality control testing. 5 iQ 11 6 i^ 7i Ic It just comes in one size; is that right? That's correct. Refresh my memory and tell me what job 1 S you had and about what year it was that you first 0 became familiar with any kind of testing of the 8500 .0 or the 8710. i: A It would have been in the very first year 12 I was there in 1976- 13 Q And that was a part of -- As to the 8500, 14 i + was a part of ongoing quality control? 15 1 16 | 7 - jI 1 13 A That's correct. Tell me a little bit about how you conduct your ongoing quality control program. Is it done at random? Is it done every week, every day? Do 19 1 20 you pick cut every 10,000 masks? How do you do that? MR. WHITTENBURG: For the 8500 21 or the 8710? *>o MR. SWEARINGEN; 8500. 23 j A The 8500 - there is a quality control plan issued and in place in the Division that specifies i i f Ho t-fst parameters it will go through the frequency at which those are done. By I mean by that out of every "X" number you make, how many do you pull cut and actually test; and not in time spar., per se. And what the specifications are that you've got, that you are looking for conformance to or ncn-confcrmance. That is all in one big quality control package. 3Q Do you all originate the package or does 9 it come from some other source? 10 A It comes from 3M. Q Well, you are 3M. It comes from some other Department or ------ 13 A (Interrupting) No, it's developed by our 14 Quality Assurance Department inside of OH&SP. 15 Q That's not within your responsibility; 16 is that right? !~ A That's correct; it is not. 13 Q Without getting into that rigmarole, it 19 comes from someone ether than you? 20 A Oh, yes, that's right. 21 Q Under that package who has to make the test? Does that come under your direct responsibility? 23 A The specification testing is done by Quality 24 Control cersonnel in the slants themselves where i 1 7 4 it something that was done as a part of your responsibility cr that of the people that work under 6 vcu? A Originally it was done 'ey my own choice 3 because I wanted to know hew it worked, you know, Q what tests were done, hew were they done, what the purpose of them was - as a general learning curve about respirator design and the response curves of input to a respirator, in terms of pressure drops 13 and penetrations, things like that, what do you get U out of them. 15 After that on the 8500 it would be as a 16 |i casual observer. When I'm in the plants it is going on all the time, and you see it happening. But in 18 ! that sense, yes, it is as a casual observer now because 19 I know what they are. 20 Q How would the Quality Control people conduct 91 the tests that you have seen going on in the various On plants? Just physically, how is it done? 'i 3 ;' A It is physically done by taking samples 24 aanrcd I don't mean the finished product. --- 'r^r^rials that go into 1 n 3 4C (Interrupting) Let me interrupt you. 5 I'm net interested in the raw product. 6 Tell me what you have seen as the testing of the Quality Control people of the finished product, 8 if that will help you eliminate some of your answer. 9A Sure. They take a certain number of the 10 masks from a lot, which is a certain size setup; 11 and that number is determined, depending on what 12 the attribute is that they are looking for. It is 13 determined in the Quality Control plant. It tells 14 them how many to take. Then they are done on the - 15 You take them and do the testing on them. And based 15 on your results, you either have conformance or non conformance to the specifications. 18 Q What have you seen them do to the finished 19 product in the way of testing? 20 A Pressure resistance, airflow through it, 21 and rigidity - how stiff the shell is. nQ How do they do that? . 23 A Pressure resistance is putting it into 24 a holder, and you run airflow through it at 85 liters = irnu see how many millimeters of water i column oressure the differential is in it 1 You use a machine ror that? 3 :es. 4Q What else? 5A And stiffness of the shell. That again 6 is done by a machine. It's a bending stiffness type thing. 8Q Any other tests that you have observed 9 that are done to the finished product? 10 A Sy measurement you are looking at band 11 length, placement of the staples, where they are 12 on the shell. You look at the nose clip to see where 13 it is positioned on the shell, both side-to-side 14 tilt and up and down from the edge,* what the bonding 15 strength of the adhesive is to hold the nose clip 16 to the shell itself. That's done by measurement, 1' by pulling it off. Actually, we don't believe right 18 now -- Weil, I'm not going to say, because I'm not 1 sure. I don't think we do that as a number. We 20 are looking to see that we have to tear up the shell to get the clip off, rarher than having an actual pounds/force pull type thing cn it. 23 r is the same type of testing done on the 24 8710 that vou have described to me on the 8500, or c-------------- 4- T) A Those same tes > the 8710 and many more. 3Q I want to talk about tests that you have 4 seen performed. oA Okay. 6Q First, let me ask vcu: Are they all done as a function of Quality Control? aA Yes, they are dene by the Quality Control 9 Department; yes. 10 Q And there are no tests done on either finished 11 product that is done by your Department? 12 A That's correct, yes. 13 Q Or any other Department, other than Quality 14 Control? 15 A When you say that, I will quality it by 16 saying that for the purpose of release of a product 1" for sale to the field, only Quality Control is involved 13 in that. Certainly, cur R&D people do test products, 19 an the sense of certain experimental items that they 20 make, using the same sorts of tests. But for the n i finished product, for the 8710 to be sold to the marketplace, that would be Quality Control in the 23 plants. That Department dees it. 2-1 q Have you ever witnessed any testing done 1 AO 1 3 |j difrerent from what 'v'' cu have seen done to the 8500. 4 I'm just trying to avoid repeating everything that you said about the 8500. 6 You do all of that with an 8710 but more? A Correct. 3Q I'm interested in the "but more." 9 What else have you seen ------ 10 MR. WHITTENBURG: (Interrupting) 11 Are you talking about as a finished 12 product ? 13 MR. SWEARINGEN: Yes, finished 14 product. 15 A Cn the 8710, what I have seen is we have 16 penetration testing that takes place, also; meaning determining percent efficiency of the filter media. 13 Q How is that done? 19 A It's done using a - the same aerosol that 20 is used to test high efficiency filters, the one we talked about earlier, the .3 micron DOP. 2 Q 23 A Q 24 ~= Is it done with a machine? Yes. What else have you seen done, either in & Development or out in the factory by Quality Control people? *> A We test such t mgs as band strength on 3 the 8710, how hard it is to puli the band off the 4 outer cover whin. Other than that -- Based on what I told you on the other thmc, the rest of it is 6 measurement, symmetry-type things, where the bands are placed or. the shell, where the nose clip is - 8 again, in relation to the edges of the mask. 9 Both of them also have a lot of visual 10 standards to them. In other words, if you turn a 11 respirator ever and it's ail fuzzy on the inside, 12 that's not allowed. It has to be smooth. You can't 13 have dirt in it or foreign matter. Those are visual 14 things that are checked for, rather than measurement. 15 So, the biggest difference I would say 16 of the things we do on the 8710 versus the 8500 is we look at different kinds of bands, so there is 18 a different band strength test, and you are looking IQ at the percent efficiency of the filter itself. o n'j This testing is done for that. <i,> 1i C The band strength test - is that just to n*-% see how much force has to be applied to pull the 23 band out of the respirator or cut of its fastening? 2i A That's correct. the rurpose of it? 126 1 4 6 g o No. That's basically it. SO C Do you think that that's all the testing i 1 that needs to be done in your way of thinking as ; 2 a casual observer? Have you ever had the thought 13 chat maybe they ought to do some other kind of test? 14 MR. WHITTENBURG: On the final 15 product ? 16 MR. SWEARINGEN: Yes. rA No, I never had. The primary characteristics 18 that we are looking for is percent efficiency of 19 the filter and pressure drop, breathing resistance. 20 Q Insofar as you are concerned, does your 21 company properly test for these elements? on A Absolutely. . 23 Q Can you think of anything further that they should do in your opinion to test for that? 21 Q Have you ever seen - and I as ycu have net have ycu ever seen a tes done where this mask was actually worn by a person during the test? A Seen a test dene with a mask being worn by a person? C Yes. A Yes, I have. Q I didn't think that you had. Tell me about that one. First, let me ask you where you saw the test. A I have seen the test in our own laboratories. Q In Research & Development? A Yes. Q And not in any other lab; not in your Department, or anything? A Well, when I say our laboratory - we all live in the same lab. It's the OH&SP Laboratory. We all live there. And the titles of our functions are separate, but we are all physically in the same place. Sc, yes, it was in our laboratory that this occurred. And what it is, I have seen a lot vnnwn as total inward leakage. in Germany, the United Kingdom, Scandinavia and Austra And that recuires usinc human subjects with masks on. C What 'tvoe of testinc is done there? A It's a concept called total inward leakage. Q Tell us what that means in layman's terms. A Total inward leakage is you choose a very difficult particle to filter, as difficult as you can find, to anticipate -- We don't choose it. I mean other particle scientists do that, particle technologists choose those. Q Are they particle technologists that work for 3M? A No, they are generally chosen from outside. They work for people like Los Alamos Scientific Research Laboratory, those kinds of people. They choose a very highly penetrating, difficult filter particle. C Do you choose the most difficult type? I believe you said that awhile ago. A You try to cheese a most difficult type. Whether the one that is actually used is the absolutely most difficult, I couidn't tell you that. There may be another that may be slightly more difficult. I don't knew. t-hav are very hard to stop. Y:u put that aerosol into seme sort of a Cl sc that it encloses the human subject, and you measure directly with machines what totally gets into the breathing zone of the worker or the subject in this case. They may or may not be workers; they are not necessarily workers. And that is called total inward leakage - inward leakage from all sources possible cf that present material. And there are upper limits set then on what the percent inward leakage can be 10 in these countries. 11 Q What is the key aspect of respirator design 12 that will affect that inward leakage problem? 13 A The key aspect in that case? UQ A Yes. Most definitely it is the filter media itself which is the limiting factor there. 1" C Zo you knew what chemicals or particulates 18 are used in any of these tests that you have seen? 1-3 A Yes. 20 C What are thev? A Sodium chloride and oaraffin oils - oaraffin oils in the form of a mist. . C Paraffin oil? 2i A Uh-huh. That one has fallen out of favor o r laatteellyy.. It's not used mucn' anymore. C 2 3C And it was dcnd to meet specifications 4 of foreign countries? 5A That's correct. 6C Would you agree that in addition to testing tne falter medium, that that test is also designed 3 to test the fit of the respirator on the subject? 9A Certainly. Like I said, it's total inward 10 leakage. It's leakage from all possible sources. 11 G When you say leakage, isn't that the primary ' '1 thing that you are testing, really, is respirator -O fit and not respirator material? 14 A No, sir, that is nor correct. In total 15 inward leakage you are testing everything and not 16 just face seal leakage. Q Have you ever observed your company doing 18 any just fit testing? !9 A Yes, I have. 20 Q Tell me about that. When and where? 21 A In our laboratory, looking at our product 22 line and our competitors', and going through the - 23 what is more or less a standard protocol for fit 24 testing these days. They used to use DOP, and now r\ * i o 3 4 t 3 o 10 il '^ 13 14 15 16 18 19 20 21 22 23 24 G What is DO?? A Dicctylphthalate. C Which one cf them smells like bananas? A Isoamvi acetate smells like bananas. G Do you all ever use that? A Net much. That is strictly a test that is just used for chemical cartridges mostly for a quick fit check, with the exception of the duPont protocol that's in the lead standard that you can look at. That has to do with chemical cartridges totally. Q That's another Government standard? A The lead standard is, yes. That's an OSHA standard. Q Tell me about the fit testing that you have seen dene. When did you see that? A I've been seeing it going on for the last four years or more, four or five years. Q Do you see it going on all the time or -------A (Interrupting) No. Q You said that you had seen the other test three or four times. A Yes, because that is one that we run for foreign applications. - foreicn countries? A Yes. I have seer, tms cne mo: Is doesn't go on all the time. It is generally done in terms of research work, in looking for the responses ci how thincs fit on human faces. C Weil, is it acne on the 8710? A hot directly, no, because the 8710 -- The concept cf face fitting now changes radically from total inward leakage. race fitting - it used to be known as protection factor, and now it tends to be called fit factor. This is the concept of only looking at the leakage that occurs through face seal leak or through other areas, other than the filter media; particularly if you have valves, gaskets, things like that, in the respirator design. C The 8710 doesn't have any gaskets or valves or anything, does it? A No, it does net. Q Neither does the 8500? A No, but veu wouldn't fit test an 8500 in the first place. It's r.ct a respirator. Q Let's talk about the 8710. Have you seen at fit tested? A I have seen it fit tested, yes. But you wra asking me if we do it on it, and I said not When you're looking strictly at face seal leakage and other forms of leakage, other than the filter media, then you must be able to separate filter ! i media penetration from face seal leakage. The only ji wav' that v' ou can reallv- -oh-vsicallv- do that is to :: reduce filter media penetration to as near zero as - you can get so that it essentially is not there. The typical way that that's done is to change the i filter media of the respirator that you are working with to the high efficiency types that we were talking about earlier that will -- Because now the corn oil or the DOP that is being used is not the same as the one that is in the test. Q Is the 8710 a high efficiency ... A No, it's not, and I was going to get to that. That's why you cannot directly test it, not directly. We have done that experimentally on looking at altering the filtration efficiencies of the 8710, i just for the purpose of fit testing, yes. But what we have done in fit testing really is to develop the saccharin protocol that allows vcu to fit test the respirator in the so-called super- 0"% 4 5 MR. WHITTENBURG: Has he? 6 MR. SWEARINGEN: His company to his knowledge. 8A Pur a person into a hood to see what; to 4 look for face seal leakage? 10 Q Just take an 8710 right off the factory i i assembly line, put it on a human subject, put him i: under a hood or in a room or whatever you do to introduce 13 some test chemical to see if it leaks around the 14 edges . 15 A Yes, we have dene that. i6 Q When and where? A We did that the last - two years ago for : 3 quite a bit of time while we were developing the 19 saccharin protocol for the lead standard. 20 Q Why did you develop the saccharinprotocol? 21 A We did that because, as I explained before, ~IO you cannot use the challenge aerosols that are in 23 the standard face fit machines that are sold because 24 you are not able -- Unless you can use high efficiency von cannot separate filter 1 m 2 i cut a cartridge to change it, what we had to do was 5 to show, develop and then prove the case, that another 6 form of an aerosol would effectively be stopped to a very high degree by the filter media; in other a werds, filter penetrat ion tending toward zero - very G small. But they would still find leaks in the face ! 0 seal, adequately, just the same as a quantitative I: face f it does. 12 Then, if you can do that, you could directly 13 measure the face seal leakage of the product. 14 Now, what we have done is that we did that 15 m terms of a qualitative test. In other words 16 we are not sampling the aerosol directly inside l - We are using taste response for this one. And 13 has all been verified 'ey correlation to the standard 19 quantitative face fit that it works. It's in the 20 lead standard record. You can read it all there. Q How would I find your company's records about those tests on developing that saccharin protocol? 23 A The company records - it would be one and the same thing; What is in the lead record is our 1 submissions to them. 1 n -) 4 5 o 9 10 '1 fn 13 U 15 16 18 19 20 21 ->Q 23 24 Q Is there anyt have that would not he A I don't think so, no. Q Where would I find your company's records, if I wanted to look at them instead of the publication? A I don't knew. I would have to go look and ask where the copies of the submissions are. r Were you involved in the development of the saccharin protocol test? A Not directly, no, I was not. Q Who was, your Research & Development people? A Yes, a team of people. A lot of people worked on that: Quality Assurance, R&D people. Q What you know about that is what you have learned as a casual observer; is that right? A A little mere than casual. I was highly interested in what was going on. Q But it was not your job responsibility, was it? A No, it was not my job responsibility. Q In fact, none cf this testing that we have talked about today that you have seen - none of it was under your direct control and none of it was your job responsibility, was it? A That is true. C And if your company as a sophisticated'" manufacturer was selling this product to a sophisticated distributor, vcu would net tell him that it was a high efficiency respirator, would you? A ho, I would not. I would tell him it was a dust/mist respirator. C Because if you told him that, it would be a misreoresentaticn, wouldn't it? A If I told him that, certainly, because I know better. C Because by the simple term and the terminology as it is understood in the trade, if you told him that you would be representing that the respirator was of a higher quality than it really is, wouldn't you, if vcu told him that it was a high efficiency and it really wasn't? A I would nor say higher quality. Different filtration efficiency. Both of them are high quality things for what they are meant to do. MR. SWEARINGEN: Please mark this . (A COPY OF A 3M PRICE PAGE WAS MARKED BY THE REPORTER AS EXHIBIT 1. SAME WILL 3E FOUND AT THE CONCLUSION (By Mr. Swearingen) Q I'm going to hand you what the court reporter has marked Exhibit 1. It is a Xerox copy, and I have beer, furnished this. Do you recognize it? A Yes, it is a 3M price page. Q A 3M price page? A That's correct. Q Who does it go to? A Cur sales representatives would have this, and it would go to -- Let's see what this is. It is "Suggested Net Price Per Case To Consumers," so, it goes to consumers. The distributors would have this, and it may or may not be given to like a purchasing agent as to what the consumer prices are. C Does it have information on it other than prices ? A It has some descriptive termshere, yes, on the right-hand side of what we would call the features of the respirator. Q What respirator does it address itself to? A The 8710. q Does it describe it as a high efficiency respirator? A It describes it -- The statement is in -------=!~,i o hi ah efficiency Q Dees it describe i as a high efficiency respiraccr? A That is a statement that is made there. Whether that is purported to say high efficiency in terms of the definitional terms of the .3 micron test, I don't know. It doesn't say that. Q Well, if it went from a sophisticated manufacturer, which is your company, to a sophisticated distributor or supplier or distributor, and he read that, he would certainly be entitled to think that's what you wanted him to understand about that, wouldn't he A I don't know if he would or not. Q Didn't we agree that sophisticated users would understand that high efficiency to mean something? A When we talked about being familiar with the NIOSH approval testing, that's right. Q We tied it down just awhile ago, too, and we were not talking about NIOSH, were we? A No, I have always said I think we tied it strictly to the NIOSH test every time. Q Just tell me, sir: Does the brochure that was published by your company represent that it is a high efficiency respirator cr net? X- 4- ^ a +- i <5 t rue . 1! i -i 1, 3' because if :: was Ssaailec rugn etriciency" meant the .3 micron type, my opinion would be that there would be a subnote under that that would describe 4 what that meant - the same as down here where it 5 : tells you that it is not high efficiency. It says o "Certificate of Approval TC-21C-132 ..." It tells ' you that it comes from the U.S. Bureau of Mines and 8 NICSH, and that the 3M 871G is a single-use air- 9I M I 10 !( purifying respirator for respiratory protection against `" pneumoconiosis and fibresis-producing dusts, including i 11 | but not limited to aluminum, asbestos, coal, flour, iron ore or free silica. 13 || Someone who is very familiar in the art 14 !| of the jargon of respirators, when they read that and see "single use" they know exactly that that 16 || is in no way in anybody's imagination a high efficiency respirator. 18 |] So, I would say what they are doing up 19 || here is that they are saying that this respirator 20 || has a good efficiency against particulate matter, 21 | i because they do. Even dust mists - they are very high in their particulate efriciency. Q So, you're saying that the true description is in very fine print that is about one-half or less ` 1----^ 1 flarli nn .s that what you're telling us 7 i 3) No, I didn't say that it was misleading. Well, you can lock at it. Is it about 4 half the size of the print? A It's about half the size. But, I'll tell 6 vcu the truth: When I get down to the bottom of the page, I didn't know what vcu were talking about, 3 because I didn't see it in the corner. It was the 9 last thing I saw. 10 MR. WHITTENBURG: When I pointed 1 i to it? 12 THE WITNESS: That's true. 13 (By Mr. Swearingen) 14 Q You saw it when your lawyer pointed it 13 cut to you? 16 A Yes. I didn't even notice it in the beginning. So, I would not say that what is down at the bottom, 13 rhe complete accurate description, is hidden more 19 than what is up there cr. the left-hand side. 20 Q Do I understand your earlier testimony 21 to be that you would describe an 8710 as a dust slash mist ">P> respirator? 23 A 24 Q Yes, at the present time that is true. Was it true in 1973? -- T - too rpsoirator Q Which means? A That is a different form of approval given bv NIOSK. It limits the 8710 primarily to the pneumoconiosis- and fibrosis-producing dusts. It would not be used against a chromic acid mist, let's say, at than time, nor lead dust at that time, like it can be today. Q Can it be used against asbestos today? A Yes, sir. It still holds that approval. Q Dc you think it is effective? A Yes, sir. Q Part of your job is actually drafting up and drawing up what goes on this kind of stuff, isn't it? A On those, no, not particularly. Those are promotional sheets. They are not technical sheets at all. Technical sheets are the instructions that go into them. That we are involved with directly. Q You are not involved at all with the promotional stuff? A Since I have been around, only to read it for technical accuracy, yes. Q if you were asked to read this today and !ia vour response be? o 3 cr would you suggest that maybe they ought to take 4 off the "high efficiency"? A I think I would answer it with today's 6 knowledge of what I know about customers and how they react to what they know. 8 There aren't many sophisticated ones in 9 my experience. I would probably say yes, we ought 10 to qualify that, just so there is no possibility 11 of someone reading that and not reading the rest 12 of the page down here where it tells you exactly 13 what it is approved for. That would be today, I 14 would certainly probably do that. 13 Q Is that because most of the users don't 16 really know anything about the Bureau of Mines or NIOSH or OSHA or anybody else and what their regulations 18 set forth? 19 A I don't know. 20 Q Is that one of the reasons? 21 A I don't know how much they know or not. 22 The U. S. Bureau of Mines is not really much into 23 it anymore. . But, no, I don't know exactly what they 24 c: ,arl it with 1 most of our customers. They are interesu1?<^in which 2 respirator of ours is the one to be recommended. 3 and not for me to tell them how they are tested. 4Q You have some knowledge. You have referred n several times to what you know about sophistication 6 of your ultimate users. A Yes . 3Q You have studied it and you know something 9 about it. 10 A From experience, yes; and from talking 1 i to them, yes. 12 C So, when it comes to drawing up instructions, 13 for example, you don't find it very useful to say 14 "Use this in accordance with OSHA standards or certain IS Bureau of Mines standards," because your users are 16 not that sophisticated generally, are they? IT A We do do that anyhow because some might 18 be. There's a mixture. We don't know up front. ' !9 Q But to do it right, you have to go further 20 than that with an unscphisticated user. You have 21 to give him something that he can understand, don't lo you? 23 A No, not at all. It depends on who you are defining as a user. 24 If you're talking about the person at the 1 2 3 4 5 about what the respirator is for is for that person's 6 employer or supervisor, whatever, because they are the ones with the ultimate responsibility to choose 3 a respirator program and for training of the worker 9 himself. 10 Q As far as your company is concerned, they II have the ultimate responsibility? 12 A And as far as the law is concerned, 13 Q 14 A 1A ~"J Q 16 A Do you know that law? It comes under the OSHA regulations. Do you know anything about Texas law? No, I can't say that I do. r: Q I'm going to tell you something about it. 18 The employer doesn't have to do anything. 19 ' MR. WHITTENBURG: That's wrong. 20 That's a misstatement of the law, 21 and do not answer any question based 'ICI upon an improper statement of the law. 23 MR. SWEARINGEN: Well, if he's 24 going to give answers as to what the r* pa n ask him questions about 1 the law. <a>. MR. 3 you know what the law is. 4 MR. SWEARINGEN: Can I not ? MR. WHITTENBURG: Yes, sure, 6 you know what it is , you go ahead MR. SWEARINGEN: I know what 3 Judge Parker thinks it is. g (3y Mr. Swearingen) 10 C Then do I understand you to say that as 11 far as your company is concerned, you don't worry 12 about what you send on to the ultimate user; you 13 worry about what you send his employer? 14 A 15 Q No, I didn't say that at all. Let's be real clear about what your company 16 thinks they need to tell the ultimate user and what 17 they think they don't have to tell him under the 18 law or under your policy or whatever you want to 19 call it. 20 A The ultimate user - what we provide on 21 the respirator is instructions for use and certain ni disclaimers. 23 In the case cf an air-purifying respirator like this one, it would be that it doesn't supply _ - don't go in an oxygen-deficient atmosphere. 1 Ail of 7 be -- I wouldn't call them perhaps high technical, 7 but they are - they require some understanding. 4 Now, that understanding -- We are worried about making 5 a product that will physically function on the end 6 wearer. That is our worry in his sense. We are also worried about whether instructional 3 materials might be used by the employer, because Q they are the ones that are running the respirator 10 program. I am not aware of workers running a respirator ! 1 program. The employers do that. Those are the people 12 that need to see instructions, and they have the 13 responsibility then to train the workers on how to 14 use this product and when not to use it, under what 15 circumstances to use it. 16 Q Who needs to know that you can't use an 17 8500 if you are on a sandblasting pot? 18 A The employer of the sandblaster. 19 Q As far as your company is concerned, you 20 don't owe any duty nor do you make any effort to 21 get to the ultimate user the information that he OO should not use an 8500 if he's sandblasting; is that 23 true? A 24 No, it is net. We give that information L that is given to the employer- That employ* ry tier* to: receive all of the counseling from us that < 3 he wants, simply by asking. He can get it from the 4 sales representative, he can get it from Technical 5 Services, all he wants. 6 And in the end, as you purport, someone wound up wearing an 8500 in direct sandblasting, 8 it certainly didn't come from us. 9Q No, because you didn't try to get it to 10 him, did you? - li A Yes, we did, through the employer, which 12 is our only practical avenue of doing it. 13 Q I understand that, sir. I think you're 14 answering my question, but I want to make real sure 15 that you are. L6 You're telling me -- And I'm using the 17 example of an 8500 used in sandblasting, just as 18 an example of your company's policy and attitude; 19 okay? 20 A Q 21 OO Yes. I'm using that as an example. MR. WHITTENBURG: An example of their attitude? 23 MR. SWEARINGEN: Yes. Well, 24 T am riv-ina ta ask is. 1 (Ev Mr. Swearingen) o 3 4 Your company's policy, your understanding of the law and what your company is trying to do, 6 using the 8500 as an example, you're going to do your best to inform the ultimate user's employer 8 of the fact that it should not be used for sandblasting. 9 Now, that is your main objective; is that right? 10 A Yeah, in the terms of what you're talking II about, that's correct; by describing it for what 12 it is: a nuisance dust mask. 13 Q And under your philosophy or your policy, 14 that is the end of your duty or responsibility, insofar 15 as getting that information to the ultimate sandblaster/ 16 user? 1" A I would have to say yes, because we don't 18 have access to those people. 19 Q And you don't try to put any kind of warning 20 or information on the mask itself? A i We don't have to. The relatively sophisticated "JO people that we have been talking about - the employers - 23 it is their responsibility to know what kind of 24 respiratory protection is or is not practical and U Arp SUDOOSed 1 T . Department of Health, the local OSHA office, call 3 NIOSH. They can go read the OSHA standards, if they 4 get that far. 5 There are a whole bunch of places that 6 they can get this information. And when we describe the 8500 as a nuisance dust mask, there is no way 3 on earth that anybody who has gone and fulfilled 9 their obligation to check out what is right would 10 ever come up with the 8500 as a recommendation for 11 a sandblaster. Never! 12 Q And that example would apply to the other 13 respirator that you manufacture, without rehashing 14 each one and going over the same thing. We can use 15 that example to illustrate your company's policy 16 about getting information to the ultimate user of > any of your respirator products? 18 A That is for the sandblaster himself. > 9 We talked earlier about the fact that the 20 8710 might be apropos for people who are operating 21 around the edges of sandblasting. 22 Q Dc you feel like you have a duty to get 23 information to the ultimate pot tender wearing an 24 3710? 4-- J 1 2 3 4 information to the employer, you have met your duty 6 and you have no further work to do? A In the sense that the employer is the one 3 who is in the end responsible for running the correct 9 respirator program for his employees, that is what 10 we are trying to do: Get information to the person 11 responsible. 12 Q Sir, I am not talking about in the sense 13 of what employers should do; okay? 14 I'm talking about in the sense of what 15 your company feels like they have an obligation to 16 do and what in fact they do do. 17 A As far as I know, that is our obligation: :3 to follow what we think is the right way to get that 19 information to the worker, which is through the 20 responsible party, the employer. 21 Q And as far as whether or not your company 22 has ever considered alternatives, such as placing 23 some type of warning on the respirator itself or 24 placing - stapling a leaflet or pamphlet to the product have not considered any cf those because you dUi feel like that's the way to do it; is that right? A We have considered it, and we have said no, we don't think that's the way to do it. It goes on the boxes. I'm talking here when you said leaflets or something stapled right to the respirator, each individual one. If you wanted to go and try to give ail the possible warmings on a leaflet or printed on the respirator that would come up in a discussion with the employer, who is the one who knows what the hazards are - I don't know of anybody's respirator that could hold all of that, because it's just too many words to do it. So, we have to go back to the fact that you give generic - no, "generic" as not the right word - a description of the respirator, what it is usable for - much as is on that piece of paper in front of you there where it describes the TC numbers and what you use these things for. Then the responsible party starts to perform what is sometimes called good industrial hygiene practice. He identifies the hazard - sandblasting in this case. The hazarc is the sand, both from a physical hazard and an inhalation hazard. He then especially if you're talking about the pot ter 1st*a say. 3 Then he goes for control measures. In 4 general, a control measure for sandblasting is a form of air-fed hood that is designated to be a sandblast 6 heImer. If he doesn't know all of that in his head, 3 just right off the bat, then he is obligated to go 9 find out, because he is the one that is responsible 10 to run that program, to protect that employee that II is in his employ. And we are just one of the sources 12 that are more than happy to give that information, 13 to lead him down the right track. 14 Q Have you been involved personally in testing 15 any of your competitors' products? 16 A Cnee I personally tested it, yes. Q What did you test? 13 A It was not a U.S. respirator. It was in 19 fact a respirator from France. 20 Q Has your company been involved in testing competitors' respirators? A Yes. Q What would you say that your competitors have that is comparable to your 8710? 155 1 make a disposable respirator in the same o ! less the same design concept as our 8710. There " 3 are also ------- 4 ;Q (Interrupting) Who are they? 5A Glendale and AO, for instance, make them, 6 in the terms that they are approved dust respirators. They also -- Anybody's rubber facepiece half mask 3 respirator that is equipped with dust/mist filters Q performs the same function as an 8710. ! 10 j Q Are you familiar with testing that has li been done to compare vcur competitors' products' 12 performance to that of your own? 13 A I might be. It depends on what you are 14 speaking of. IS Q I am speaking of any testing done to compare 16 your competitors' products to your own. rA If you are asking me am I aware that has 13 ever taken place, yeah. Whether I am familiar with ' 19 it specifically'- one that you might ask about - 20 I don't know. 21 Q I don't knew about them, sir. I'm trying 22 to find out where I would find them. 23 Where would I find the results or the recordings 24 of such testing? - ~ 1 - '--------- r.7,, 1f I'm 156 I just aware of the fact that they took place.^ , ; y ? Qi : . Is it ever used in the sales part of the J .training that you know of where your salespeople 4 are given information about competitors1 products? 5A In terms of that, generally what we would 6 talk about there would be things like weight, vision obstruction, pro or con, you know, more or less; 8 the kind of things that are perceived by a wearer: 9 Is this one heavier than that one? Is he more likely 10 to want to wear this one than that one? To my knowledge 11 we don't get into talking about filtration efficiencies 12 and how filters work, except in the sense of which 13 ones are useful for what. 14 An example would be like our own 8712 is 15 a gas and vapor respirator for organic vapors. We 16 would tell them to not use that for acid gases because 17 there is another one for that. In that vein, that's 18 how we get the point across. 19 Q Let me ask vcu this: Do you ever get 20 information from Research Sr Development, for example, 21 that says, "We have tested the 8710 as it compares 2n to ABC Corporation's respirator, and we have them 23 beat in these areas. Pass it on to your sales force"? 24 Has that ever come through your office? 1 that. Q Would any otner mvision or your company 3 do that and pass that information through your office 4 to the salespeople with whom you have some contact 5 in your training program? 6A We have periodically looked at competitive products. As I said, we don't concern ourselves 8 too much about that. We tend to concentrate on our 9 cwn performance of our own products. And when a 10 new one comes out, perhaps on the market that has 11 never been seen before, probably what we would do 12 generally is run it against the NIOSH approval test, 13 just to see where they stand. But normally we wouldn't 14 write that up and run out to the sales force and 15 say, "Oh, Boy, we're 2% better than these guys? isn't 16 that wonderful." That1s not what the end customer 17 is worried about, the employer. If you are NIOSH 18 approved, he has a certain trust level that he is 19 buying your respirator for other reasons and for 20 other design concepts and for the service he gets 21 from the 3M Company, price? they all enter into the 22 decision logic. 23 Q Do you know Den Bevis? on Bevis? 24 1A No, not that name. 2Q I have been furnished a rather voluminous 3 amount of documents from your company in response 4 to our request for information about your products. 5 I think it was yesterday or something. 6 MR. WHITTENBURG: It was available all last week. You didn't return 3 the phene calls, and you didn't realize 9 until we called and told you that 10 it was available. 11 MR. SWEARINGEN: Who did you 12 call? 13 MR. WHITTENBURG: Diane, and 14 then we called back and called back 15 again. Finally, we got the word through 16 sometime last week. (By Mr. Swearingen) 18 Q After I have had a chance to sift through 19 all of these documents -- Do you know of any reason 20 why you would not be available to testify at the 21 time this case is tried? A At the time of trial, that I would not 23 be available? Q In the next month or two, are you going --* r-nnnr--j on vacation or whatever? I <> 3Q When and where will you go? 4A Hong. Kong in a month. 3Q When? 6A In a month's time I will be in Hong Kong. Q Do you have some dates in case the Judge 3 wants to know when this case ought to be tried? 9 I would like for you to be available, if you can be. to A I'm physically leaving next Saturday - 11 this coming Saturday. 12 Q How long are you going to be gone? 13 A For quite some period of time. It's a 14 special assignment that I have over there. 15 G Does it have anything to do withrespirators? 16 A Not at all. It's aboutThinsulate, as 17 a matter of fact. 13 Q Do you know how long you will be in Hong 19 Kong? 20 A No, net specifically. 21 Q I guess you may not be available for trial, "in if this case is tried in the next month or two? 23 A I couldn't tell you. It's up to my company. 24 Q You could fly back from Hong Kong if they 4- - + I suppose so, yes. - ^ v ~s i Did you participate m the gathering of information or documentation that was delivered to us by your company's lawyer; did you help him gather any of that or have anything to do with it? A No, I did not. Q Are you a member of the ISEA - Industrial Safety Equipment Association? A OH&SP Division is. It's not a matter of personal membership. It's company membership. Q Do you participate in that trade group? A I don't personally, no. Q Do you know anything about its work or what its purpose is? A Its purpose is to - to my knowledge my understanding of ISEA is the gathering of safety manufacturers, which may or may not be involved in respirators; but to gather -- It's like a gathering of people so that they can discuss concerns common to their whole industry. An example might be that they will discuss amongst themselves the position of ISEA as it represents ISEA and not the individual companies on what stance they would take, pro or con, against the stance that 1 2 3 4 3 6 3 9 10 11 12 13 14 15 16 17 13 19 20 21 92 23 24 And they a group. Q Are you familiar with their efforts this past summer, in response to an OSHA inquiry, that they recommended to OSHA that your 8710 not be approved anymore for use with asbestos? A My understanding of that is that their recommendation - my understanding of their recommendation was that the half mask air-purifying dust/mist respirator not be used, which the 8710 was one of those. Q That was their recommendation? A I think so. I don't believe we were singled out. Q Are you familiar with your company's effort and successful effort in having that recommendation changed? A Certainly, I know that was true. Q Were you personally involved in that? A Not personally. Q Who was for 3M to your knowledge personally involved in that? A I really don't know. There was more than one person. None of these things are done by one person. 1 it. It was important to your company, wasn't 2A You don't want me to give you names unless 3 1 go back and verify that these people actually worked 4 on it. 5Q We can do that. You give me names of people 6 that you think worked on it, and I will verify it. MR. WHITTENBURG: Do you know 8 of anybody that you feel relatively 9 certain was involved? . 10 A Relatively certain - the only one that 11 I would say that was involved was Don Wilmes, 12 W-i-l-m-e-s. 13 Q Who is Don Wilmes? 14 A He is a technical specialist in our Quality 15 Assurance Department. 16 Q Is that your Department? . 17 A No, I'm Technical Services. This is Quality 18 Assurance. 19 Q What involvement did he have in resisting 20 that change? 21 A I don't know. Like I say, I'm sure that lo he was involved - reasonably certain,* but exactly 23 what he did, I don't know. 24 Q Did you talk to him about it? How did A "5 ^ 164 1 MR. WHITTENBURG: He 2 through saying that he doesn't know ~ 3 if he was involved. You asked him 4 for somebody that might have been 3 involved, and I pressured him to give 6 you the name. i (By Mr. Swearingen) . 8Q Did you talk to the man about it? 9A In general, yes, because he knows a lot 10 of all about what is going on with Government regulations II in general, like I do. So, we talk all the time 12 about that. 13 C Did he go to the meeting or whatever to 14 resist this effort? 15 A I don't know if he was a representative 16 there or not. Q Did you talk with him after his successful ' 18 attempt to have it changed? 19 A I couldn't tell you that, because I don't 20 know that he was the man who was successfully attempting 21 to have it changed. I talked to him about it, yes. 22 Q And you do know that your company was successful 23 in its opposition in that the ISEA changed its position 24 to one of no comment? -- nrr that that was 1 the case. 2Q Are you familiar with the 1969 field test 3 of Procter & Gamble in Cincinnati, Ohio, involving 4 the use of your 8710? 5A I don't think so. It doesn't ring a bell. 6Q Are you familiar with any information that would lead you to believe that one of the anticipated 3 uses of that 8710 is that a workman will fold it 9 and put it in his pocket when he is not actually 10 wearing it? il A The question is what, am I familiar that 12 people do that? 13 Q Yes, that that's one of the things that 14 you people try to anticipate is what a workman is 15 going to do with this mask when he is not using it. 16 I'm just asking you if you've ever gained IT any knowledge from any source that a common practice 18 on the part of a workman is to fold that mask and 19 place it in his* pocket when it is not actually in 20 place on his face? 21 A I'm certainly aware because people have 22 told me that workers have done that. Whether it 23 is common practice, I don't know. 24 Q Who would have told you that? D-rnhahlw a fellOW. an industrial hygienist in one of the calls 1 I was making over the years in the field. 3Q Did you respond to that information to 4 see if it was true? 3A Did I respond? I mean, if the man told 6 me that, I would expect that he was telling me the truth, that workers have done that. 8Q Did he tell you that when that happened, 9 it deformed the metal clap or broke the metal clip 10 and made the face seal improper on reuse? 11 A Nobody has ever told me that, no. 12 Q You testified earlier in response to one 13 of my questions that if you don't know the concentrations 14 of dust - it was in response to my hypothetical question 15 about a sandblaster calling you about the use of 16 an 8710 by a pot tender -- Do you recall that question? A Yeah, I believe you asked me ------- 18 Q (Interrupting) What would you tell them. !9 A Yes. ' 20 Q And somewhere in your response, I believe 21 you said that if you don't know the concentration, -o then it is wise not to use the 8710; to go to an 23 air-supplied hood or something like that for your 24 pot tender; is that right? ^ ^ 3rnn Hon 1 + Wnnw 1 it or have some previo -* this- concentrations wil 3 .if you are standing upwind in a good breeze and you 4 are outside and you are 100 feet away -- It is very 5 unlikely that that will be the case, so as a result 6 then the 8710 might be apropos. If they have some reason to believe that the concentration could be 8 very high - if the guy is standing up in a cloud 9 cf the stuff - we would say if you are not going 10 zo have it measured as an employer, then what you LI must do is go into the air-fed systems. 12 Q Do you know of any instructions that 13 accompany the 8710 that say anything to the effect 14 that if you do not know your concentration, use caution, 15 or be careful, or use a better respirator? Do they 16 say anything like that? 17 A Yes, in the sense that our things now tell 18 you to use it only in terms of 10 times the threshold 19 limit value. ' 20 You are also again back to the employer; 21 he is to run a good respiratory - minimal respiratory 22 protection program. That's what OSHA requires, minimal. 23 And part of that whole thing is to know what the 24 hazard is. So, he is to find that out. It is his 1 2 3 for, what it is approved for; and, therefore, it 4 leads him also to the recommendation as to what kind 5 of product might be used, and you can find it from 6 other sources other than us. Q Does 3M Corporation have what some people 3 refer to in their personnel policy as career ladders? 9A In our personnel policies? 10 Q Yes. II A Career ladders? 12 Q 13 A Yes. Maybe by another name. I don't know the 14 name. Career ladder means -- It means something 15 to me, but not in terms of that I have ever seen 16 it at 3M. IT Q The thing that it means to me is that for 18 a young, aspiring young man, such as yourself, that 19 some companies sort of have a policy or procedure 20 where if you do a good job you will work in certain 21 Divisions for a period cf time, and then you will '><> move to another to get a broad general concept of 23 the company's business in anticipation of being promoted to higher levels of Management. I'm wondering if 24 1A I don't think so- I am not aware sj^t^^ ^__. 2 in- the technical fields at all. Your jobs there 3 you get strictly by the fact of someone knows you, 4 knows of you, or you go searching for a job yourself, 3 of vcu know of one that is coming available and think 6 that you would be well-suited for it. And it is done strictly on your ability. 3Q Dees 3M publish any kind of technical service 9 manual that applies to an 8500 respirator? 10 A 11 Q A technical service manual? No. Something that you would send out and say 12 this is an 8500; use it like this and don't use it 13 like that? 14 A Oh, no, that material isn't in a manual 15 form. That material is on the box. It says that 16 it is a nuisance dust mask. For instance, you look r at an 8500 box, and it will say don't use it for 18 spray painting - on the side of the box, stuff like 19 that. ' 20 Q How about the 8710, the same answer? OT A M 4. That is on the packaging materials that it comes in, yes. Also, it is on the back of the 23 sale sheets, too, in the case of the 8710. You turn 24 them over on the back side - it would be more or 1 Ac o 4- < V*>i --i <- !* -- ** * 4- " - -- / - - ^ 1* ' *` 169 one probably didn't have a back side, but ih^^uieral 1 I today they are two-sided. You pull it over, and 170 :==55^^ 3 i 4i it will say what it is useful for. You will see the NIOSH approval label there, that sort of thing. 5Q Does your particular Division have any 6 long-time employees, people that have been there 25 or 30 years? A No. 8 I oQ What is your actual involvement in writing 10 instructional aids to these people? 11 A My actual involvement in that is as the 12 approver of them when the writer - which can be solely 13 a Technical Service person that is working in my ' 14 group or himself working with a Marketing person - 15 has written instructional materials, which would 16 include pictures, if that's apropos. And they would 17 be done in a typewritten rough draft with line drawings L8 and photographs. And that would then come to me 19 for approval, as to whether I agree with it, the 20 way it is laid out. I would be agreeing with it 21 in a technical sense as to whether the claims made on there are real and true, if we are making claims 23 about technical performance; or I personally maybe 24 would rather see some more thought put into the sequence 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 1? 18 19 20 21 23 24 go any further. C I was about to ask you if you were the final authority. A One of them. Q Does it go to someone else? A It goes lastly to our legal counsel. They have to approve it - read it and approve it, too. Q Does that apply to what is printed on the box? A Yes, it does apply to what is printed on the box. Q What other things have you acted on in this position? A Primarily what they are is the printed materials that are given to our sales rep, the promotional literature, sale sheets, the instructional materials and box labeling, if in fact that is different from instructional materials. Q Do you maintain some kind of a file or record of all this stuff that you act on? A Yes . We can find in a file the materials i! Q If I asked you would you please 2 fr- to- your-office and find me the files maintained in 1 i 3 j .your office that relate to the preparation of these 4i i t 5 tvoes of written documents, boxes, whatever, could * you pretty well find me an historical file that would 6 have in it all of the work that has been done that they have retained a record of, relating to the sale 8 sheets, boxes and so forth? 9A The physical existence of them? How do 10 you mean, work records? 11 Q Well, copies of them, copies of the end 12 product of your efforts. 13 A Okay. 14 Q Or the working papers in connection with 15 it, whatever you would retain. 16 A Let's see. No, I can't, for the simple 17 reason that the finals of this end up in what is 18 known as a key line. It is a thing that is used 19 by printers then to be able to print it for you. 20 Those key lines are kept - not by us - we don't keep 21 them. OA The key line is the last stage before printing. 23 That gets reviewed, just the same as the first work 24 product does. The same people do it. I have to 172 i The stuff that was handwritten UiT^tOTed, o ** - -y-` whatever is- used as the working document, always '~' - 3 as changes are made - as we want to change them from 4 the first one - we use the previous one to compare I | wcth rhe new one to see that it in fact happened. 6 And we do that all the way down the line until we get to the key line. Every time this happens, we 3 go through che hoop again, between myself and legal Q counsel doing these things. 10 In the end when we have a key line that 11 matches the last working proof document, that is 12 signed off and used. 13 The other stuff is then just like you were 14 making notes and it was going to be transcribed. 15 The notes get thrown away. We don't keep the notes, 16 because what we have in,the end is the end document, 17 and that can be reproduced, the key lines. 18 Q The key lines is what I am really interested 19 in. Can you ge-t that for me? 20 A I can't personally because I don't have 21 them. In fact, I am not sure who keeps them. I 99 know they exist. 23 Q 24 know? Can you find out and let Mr. Whittenburg MT3 Faj W T TTT WPrTPn - ? + e- 173 I my understanding that it has T provided. If not, we will look and 3 see if we can find that. 4 (By Mr. Swearingen) 3Q Are you personally a member of any trade 6 associat ion, professional organization in your line of work? 8A No, sir, I am not. There are others who 9 are, but not myself. I don't go to the ISEA, for 10 instance. 11 Q Do you go to any ------- 12 A (Interrupting) Oh, sure, I go to them. 13 In fact, every year I go -- It's a good, learning 14 source - the American Industrial Hygiene Conference 15 every year and listening to all the papers. I actually 16 spend very little time on the showroom floor. I IT listen to the papers that are being given. 18 Q Is that through your company's membership 19 or is that a personal membership? 20 A It's through the company's membership. 21 Q Are you active in any other professional association through your company's membership, other 23 than that one? 24 A No, sir, that's the only one. 174 1 -1 3 || hygiene and particularly respirators? 4A With, reference to respirators, there's 5 ! one I read all the time because it is mailed to me 6 in my name. It is the BNA - it's "The Reporter", and that covers everything that is going on with 3 ! the Government - especially with OSHA - which basically tells you what is happening in the respirator industry. 10 To my knowledge, there are no publications 11 that you can buy that tell you what anybody is doing 12 in the design of respirators. Those are given in 13 paper form usually that you pick up at the American 14 Industrial Hygiene Conference or the newly formed 15 International Society for Respirtor Protection which 16 has had one global meeting so far last year - again, IT papers being given. 18 Q Have any papers been given by yourself 19 at any of these conferences? 20 A Not at the AIHC. I gave a paper once on 21 diffusional monitors describing how they work when 70 I was doing this Business Development Unit leadership 23 at a specific conference that ------- 24 Q ft (Interrupting) That's not about respirators. Mo n r> r hhnn^ r*ocri-} raf nre 1 Q 2A 3 .Q About respirators have you given fef^jjapers? Mo . Have any papers been given by the guys i 176 4 in your Department at 3M that you know of? 5A 6C Not on respirators, no. Have any papers been given by anybody out of the Research & Development Department that you 8 know of about respirators? 9A Not about respirators directly, no. 10 MR. WHITTENBURG: That you know of? 11 THE WITNESS: That I know of, 12 anyway. It's possible that they could 13 have, and I am just not aware of it. 14 (By Mr. Swearingen) 15 Q How long have you been familiar with litigation 16 involving alleged defects in your company's 8710 1" and 8500? 18 A About a year ago, I'd say; maybe a little 19 more. 20 Q Have you seen any products liability assessment 0 ' done by or through your company or anybody else about on the 8710 or the 8500? 23 MR. WHITTENBURG: Don't answer 24 that. 1 '* " 3. 4 3 6 MR. WHITTENBURG: I dorT^lyiow^^ what you're talking about, but if you're talking about anything ------- MR. SWEARINGEN: (Interrupting) How could you tell him not to answer if you don't know what I'm talking about ? a MR. WHITTENBURG: I'm just about 9 to tell you. If it might deal with 10 anything developed with respect to 11 the litigation, it would be privileged, 12 and we are not going to waive that 13 privilege. 14 (By Mr. Swearingen) 15 Q Have you seen any studies done concerning 16 cost factors of making certain changes in your product; [7 such as placing warnings on your product? 18 A No, I have never seen anything like that 19 that addresses 'cost factors of placing warnings on 20 a product. 21 Q Have you seen anything that assessed cost on factors that may relate to the product that have 23 come in response to litigation generally; not a particular 24 case, but just generally in response to litigation? m a fWLT T TH-iT' \ro 177 1 (By Mr. Swearingen) 2 3 has an approved single-use disposable respirator 4 that they have never marketed? 5A No, I was not aware of that. 6Q Do you spend any time going to Washington to have interaction with the Government agencies 3 that regulate your business? 9A Occasionally I have, yes. 10 Q Where do you go normally in Washington 11 when you go? 12 A OSHA. 13 Q What do you do there? 14 A Theone time I was there was to give the 15 Division statement on the use of half mask respirators 16 in terms of the cotton dust standard - one of them. r There were several times that I went. I did it once. 18 Q So, you've only been there one time? 19 A No, I didn't say that. In terms of doing 20 something like that. I used to go there several 21 times. Again, it was with the gas monitoring devices. on The people that control that in OSHA also happen 23 to live in Washington, D.C., in the Department of 24 Labor Building. oppose Government regulations, it's anything to do with busi 2 (By Mr. Swearingen) 3 -Q Is he usually the one that goes to oppose 4 things on a technical basis? A 6Q I think so, but that's just a guess. Where is his office located? A In St. Paul, the same as me. 8Q 9A The same Division you are in? :es . 10 Q This is some document that was produced 11 by your company's lawyer. I don't know what it is. 12 Do you know what it is? 13 A Are you talking about the whole thing or 14 just this top sheet? 15 Q The first sheet. What is that? 16 A Product approval status -- You asked what that is. It is a listing of the various products 18 of our Division that are in 1932 - that are in either 19 stages of raw development cr some change taking place 20 that requires approval by NIOSH. On the right-hand 21 side it says the status of what happened. o>n Q There's a number right there under your 23 right thumb, 11651. There's a number on I guess 24 about every document we have. Do you know what that 180 3 4 MR. SWEARINGEN: Who is "we", 5 your law firm? 6 MR. WHITTENBURG: No, not the law firm. It was just to number them 8 seriatim. Q MR. SWEARINGEN: That was not 10 done when these documents were prepared? 11 MR. WHITTENBURG: No. 12 MR. SWEARINGEN: It was done 13 when they were prepared to give to 14 me? 15 MR. WHITTENBURG: Yes. 16 MR. SWEARINGEN: I guess just IT to give us in response to our Motion 18 to Produce in this case? 19 MR. WHITTENBURG: That's exactly 20 right. 21 MR. SWEARINGEN: Do you have no some kind of index or something that 23 ties inco all of these numbers? 21 MR. WHITTENBURG: I wish I did. o xTJ .library? A Not specifically, no. There are libraries 5 available to us around the complex, the 3M Center. 6 MR. SWEARINGEN: That's all I have. 8 EXAMINATION BY MR. VAN GILDER: 9Q Sir, at the very beginning of your deposition 10 you mentioned one of the sources of your information 11 for reading about respirators was a course given 12 by John Pritchard. Is he quite knowledgeable in 13 the area of respirators and respirator protection? 14 A Based upon what I know today, I would say - 15 and in trying to remember how he was then - I would 16 say fairly so, yes. 17 Specifically, if you get into self-contained 18 breathing apparatuses, he's pretty good at that. 19 MR. VAN GILDER: That's all I 20 have. Thank you. 21 MR. BRYANT: Where are the documents 22 that are to be produced today? 23 MR. SWEARINGEN: What was supposed 24 to be produced today? .* r MR. WHITTENBURG: Nothina. I <1 3 4 5 6 MR. SWEARINGEN: But you don't 8 have them yet? 9 MR. WHITTENBURG: Not unless 10 they have gotten here. 11 MR. SWEARINGEN: Whatever they 12 are, you will let us know? 13 MR. WHITTENBURG: Yes. It's 14 what you all put on the first notice 15 that was sent out that has since been 16 superseded, yeah. 17 MR. BRYANT: Do you have possession 13 of the documents? 19 * MR. WHITTENBURG: Yes. 20 MR. 3RYANT: In order to prevent 21 my sending you a written request, 22 I would ask that you make me a copy. 23 MR. WHITTENBURG: Sure. 24 MR. VAN GILDER: I would like 1 n1 aa 1 THE STATE OF MINNESOTA: 2 COUNTY OF 3 4 I, KENNETH L. SCHEEL, hereby certify that 3 I have read the foregoing transcript of my testimony 6 given in the foregoing numbered and styled case, -r and that same is true and correct to the best of 8 my knowledge and belief. 9 I further certify that any and all corrections 10 have been made on a separate page and initialed by me. 11 This day of , 1984. 12 13 14 KENNETH L. SCHEEL 15 16 17 SWORN TO AND SUBSCRIBED BEFORE ME this 18 day of-, 1984. 19 20 21 22 23 NOTARY PUBLIC OA 1 2 3 4 3 6 8 9 *0 II 12 13 I further certify that I am neither attorney 14 for, related to nor employed by any of the parties 15 to the lawsuit in which this deposition was taken. 16 Further, I am neither related to nor employed by ir any attorney of record in this cause; nor do I have 13 a financial interest in the matter. 19 GIVEN UNDER MY HAND AND SEAL OF OFFICE 20 this _________day of , 1984. 22 23 24 CHARLOTTE SMITH, CSR, RPR 1 2^ 3 4 6 8 9 10 11 12 13 14 15 16 1 '* 18 19 20 21 TO 23 24 9 ii r >i 1 30 Respirator El m NO. 8710 13 APPROVED FOR PROTECTION E! m AGAINST PNEUMOCONIOSIS Q AND FIBROSIS PRODUCING DUSTS* El m LIGHT WEIGHT, DISPOSABLE, Mask is inexpensive, yet durable enough for reuse. Low cost allows worker to discard after single wearing. El m DOESN'T GET IN THE WAY Nosepiece rests low enough not to interfere with glasses, safety goggles. El m ONE PIECE CONSTRUCTION Elastic headbands are permanently attachedf'supply proper tensiorDNo hooks, clamps or clips to adjust. LVu Ei m Certificate of < Iprovai TC-2ff2-132 has been grldfe'etd by ^che S. Bureau of Mines and National Institute .for O.ccupa.tional .Safety Yprt' and Health co th\ ' M No. 8710 sin_gle use air purtfjdng. respirator for respiratoryprotection against pneumoconiosis and fi"brosis prod'ucing Justs, including but hat limited to aluminum, asbestos, coal, fiour, iron ore or free silica. PACKING RESPIRATORS PER BOX 15 RESPIRATORS PER CASE (10 BOXES) 150 SUGGESTED NET PRICE PER CASE TO CONSUMERS 7-4 CASES 5-9 CASES 10-24 CASES j 25 CASES j OR MORE $92.50 $74.25 $68.50 i $62.00 o?in maw he combined with full cases of No. 850G and 8705 masks to El m B El m B El m rr