Document LKwdbNnLpKY5EzRR75GLbY6kg

FILENAME: Flintkote (FLK) DATE: 2001 Nov 15 DOC#: FLK079 DOCUMENT DESCRIPTION: Legal - Deposition of John C. Schmitt with BC Notes !//)9 V AiTSld -7 ^ ^ / ^ - ' T ^ g l ??Y?(c7 c^J>) S ' ?2-4-0 ~ <r^ p T x ^ J S - G Z - a ^ T p r ^ ^ 2 / ? Y L- / ' / S s J^-j ' i'SJ / V y t S c ^ `^V, a '7rS - 2 ^ l < - 3kV * ? 7 / / 5 C -J9?Y-> <f c ^ 7 / 9 9 a- <-^> k < sTiA-LsiST) 9> ^777>SS <& sf 1 1 2 VIRGINIA: IN THE CIRCUIT COURT FOR THE 3 CITY OF NEWPORT NEWS 4 VIRGINIA CONSOLIDATED, 5 Plaintiff vs . 6 A .P . GREEN, 7 Defendant NO. CL99-2000-00 8 9 10 11 DEPOSITION OF JOHN C. SCHMITT 12 Taken at the Four Points Sheraton, 13 3400 Airport Road, Allentown, Pennsylvania, on 14 Thursday, November 15, 2001, commencing at 10:40 15 a.m., before Daniel R. Stout, Certified Court 16 Reporter, Notary Public. 17 18 19 20 21 22 23 ** 24 A. WILLIAM ROBERTS, JR., & ASSOCIATES 25 2 1 2 3 4 APPEARANCES : 5 NESS, MOTLEY, LOADHOLT, RICHARDSON & 6 POOLE By: NICHOLAS J. VOGELZANG, ESQUIRE 7 174 East Bay Street, 2nd Floor Charleston, SC 29401 8 843-216-9000 -- For the Plaintiff 9 10 MC CARTER & ENGLISH By: ERIC J. KADISH, ESQUIRE 11 One Commerce Square 2005 Market Street, Suite 3600 12 Philadelphia, PA 19103 215-557-7700 13 -- For The Flintkote Company and the Witness 14 15 The following attorneys identified themselves and were listening to the testimony via conference 16 phone: 17 Michael Smith, Esquire National Counsel for The Flintkote Company 18 John Owen, Esquire 19 Counsel for The Flintkote Company 20 Suzanne Bruney, Esquire Counsel for ACandS, Inc. 21 22 23 * Jr 24 A. WILLIAM ROBERTS, JR., & ASSOCIATES 25 3 1 2 3 4 5 INDEX TO WITNESSES 6 7 Name of Witness Page 8 John C. Schmitt - by Mr. Vogelzang ......... 4 9 10 11 INDEX TO EXHIBITS 12 Exhibit Page 13 A - Resume of witness ...................... 8 B - Multipage document entitled Flintkote . 44 14 Asbestos Industrial Products 15 16 17 INDEX TO OBJECTIONS 18 19 Page Line 20 Objection by Mr.Radish .............. 52 12 Objection by Mr.Radish .............. 54 24 21 Objection by Mr.Radish .............. 81 18 22 23 24 25 J.C. Schmitt/Vogelzang 4 1 2 * * * 3 JOHN C. SCHMITT, having been duly 4 sworn, was examined and testified as follows: 5 BY MR. VOGELZANG: 6 MR. KADISH: Initially I just want to 7 put a statement on the record. 8 My name is Eric Kadish. I'm here 9 representing The Flintkote company, and I'm also 10 representing Mr. John Schmitt, who is being 11 presented as a witness as someone who is 12 knowledgeable with respect to products that 13 Flintkote made, and Mr. Schmitt is a former employee 14 of The Flintkote Company. With that, we can 15 proceed. 16 MR. VOGELZANG: All right, and this 17 is the Discovery deposition of John Schmitt taken 18 pursuant to Notice with other attorneys listening in 19 and participating via conference call, and this is 20 taken pursuant to all applicable Court Rules. 21 BY MR. VOGELZANG: 22 Q. Mr. Schmitt, have you ever been deposed 23 before? 24 A. Yes. 25 Q. Just so it's on the record and as you J.C. Schmitt/Vogelzang 5 1 probably know, please allow me to finish all my 2 questions before responding and I'll allow you the 3 same courtesy of finishing your answers. If you 4 don't understand a question, please let me know and 5 I'll rephrase it. If you answer it, I'll assume 6 that you understood it. 7 If you need to take a break at any 8 time, let me know, and, as always, may sure to give 9 an audible response so that the Court Reporter can 10 it down. Is that clear and sound good to you? 11 A. That is clear, yes. 12 Q. Will you please state your name and 13 address? 14 A. John, middle initial C,Schmitt, 15 S-c-h-m-i-t-t. Address is 206 Treeline, 16 T-r-e-e-l-i-n-e, Drive, Pen Argyl, P-e-n A-r-g-y-1, 17 Pennsylvania, 18072. 18 Q. And what is your date of birth? 19 A. December 27th, 1920. 20 Q. Are you currently retired? 21 A. Yes. 22 Q. And how long have you been retired? What 23 year did you retire? 24 A. Retired in December of 1985. 25 Q. And you retired from The Flintkote J.C. Schmitt/Vogelzang 6 1 Company, is that correct? 2 A. That's correct. 3 Q. 4 A. Do you know who Christine Hamilton is? No, I do not. 5 Q. Christine Hamilton was identified by The 6 Flintkote Company as the person who was the 7 representative of The Flintkote Company. Have you 8 had any communications with that person? 9 A. No. 10 Q. Are you being paid for your testimony 11 today? 12 A. Yes. 13 Q. 14 A. And what is your rate? Rate is one hundred and fifty dollars per 15 hour. 16 Q. And does that include any meeting time 17 with the attorney? 18 A. Yes, it would. 19 Q. Did you do anything today to prepare for 20 the deposition? 21 A. No, I did not. 22 Q. Did you bring any documents with you 23 today in anticipation of this deposition? 24 A. No, sir. 25 Q. Where did you attend undergraduate J.C. Schmitt/Vogelzang 7 1 school? Where did you go to college? 2 A. First undergraduate study was Cooper 3 Union Institute in New York City. That was 4 interrupted by military service. Completed the 5 studies in the BrooklynPolytechnic Institute, also 6 New York City. 7 Q. What was your area of study? 8 A. Chemical Engineering. 9 Q. And did you graduate with a Bachelor of 10 Science? 11 A. Bachelor of Chemical Engineering. 12 Q. And then did you pursue any other degrees 13 after college? 14 A. I took some postgraduate courses, but I 15 never reached the degree level. 16 Q. And what were those courses in? 17 A. Industrial Engineering, Industrial 18 Statistics. That covers the subjects. 19 Q. And what did you do after you took those 20 postgraduate courses? 21 A. Well, I was working for The Flintkote 22 Company at that time. 23 Q. What year did you begin working for The 24 Flintkote Company? 25 A. June of 1947. J.C. Schmitt/Vogelzang 1 Q. I'm going to show you what has been 2 identified as Exhibit A. It's what I believe is 3 your resume. If you could review that and make sure 4 it's up to date and correct? 5 A. Well, I've reviewed it, and it is not up 6 to date. 7 Q. Do you have an up-to-date resume with 8 you? 9 A. No, sir, I do not. 10 Q. And what is missing from the resume I 11 handed you on Exhibit A? 12 A. Well, this resume brings it up to the 13 Product Development Manager, which started in 14 February of 1965. What it omits is 1970, when I was 15 named as the Administrative Assistant to the 16 Corporate Director of Research and Development, and 17 I held that position from 1970 until 1974, when I 18 was named to Product and Plant Safety Manager for 19 The Flintkote Company, and I held that position from 20 1974 until I retired in 1985. 21 Q. Is there anything else missing from your 22 resume? 23 A. Nothing else that I can see. 24 Q. Have you ever taken any courses in 25 Industrial Hygiene? J.C. Schmitt/Vogelzang 1 A. No. 2 Q. Have you ever taken any courses or 3 classes on asbestos? 4 A. No. 5 Q. What was your position with The Flintkote 6 Company when you began in 1947? 7 A. The title was Control Chemist, working in 8 a department on product specifications and product 9 quality. 10 Q. And how long did you hold that position? 11 A. I think it was until about 1950. I think 12 it was 1950 to 1951 I was the Plant Chemist in the 13 East Rutherford manufacturing plant. 14 Q. As a Control Chemist between 1947 and 15 1950 or '51 in East Rutherford, did you work with 16 asbestos in any way? 17 A. No. Well, from 1947 until about 1950 I 18 was working in an office. The period from 1950 to 19 1951 I supervised the laboratory technicians and 20 inspectors in the various manufacturing facilities. 21 Q. And how did that job duty involve 22 asbestos? 23 A. Well, some of the products that we made 24 contained asbestos fiber. 25 Q. And this is in East Rutherford? J.C. Schmitt/Vogelzang 10 1 A. Yes, East Rutherford, New Jersey. 2 Q. What products were made during that 3 period while you were supervising in the lab? 4 A. There were two general products. One was 5 the liquid products, asphalt liquid products and the 6 mastics and adhesives. Some of those products 7 contained asbestos fiber. And the other product 8 that contained asbestos was the asbestos cement 9 siding. 10 Q. And when you say supervised the lab, what 11 do you mean? 12 A. Well, I was responsible for the -- I 13 don't recall how many laboratory technicians -- they 14 were running the regular product tests and quality 15 control tests on the raw materials and the finished 16 products, and I also supervised the inspectors that 17 were along the product lines that were doing the 18 visual inspection of the product. I just made sure 19 that they did their job the way they should. 20 Q. And the workers in the lab, did they wear 21 any type of respiratory device or mask during that 22 time? 23 A. No, they did not. 24 Q. As a supervisor for the East Rutherford 25 Plant from 1947 to roughly 1951 were you aware of J.C. Schmitt/Vogelzang 11 1 any other companies or plants similar to yours where 2 they required workers to work masks or respirators? 3 A. I was not aware of that. 4 Q. After 1951 did you get promoted or switch 5 to a different job? 6 A. I returned to the original department 7 that I started working in in 1947 and eventually I 8 became the Manager of that department. Title was 9 General Manufacturing Chemist. 10 Q. And did you remain at the East Rutherford 11 Plant? 12 A. That was in the East Rutherford location, 13 but it wasn't in the plant. It was in the office 14 near the plant. 15 Q. And how long did you hold the position of 16 General Manufacturing Chemist? 17 A. Until I guess it was until 1962. 18 Q. So from about 1951 to 1962 you were the 19 General Manufacturing Chemist at the Flintkote 20 office in Rutherford? 21 A. I think the period was 1953 to 1962. 22 Q. Okay. And what were your job duties as 23 the General Manufacturing Chemist? 24 A. I supervised the three chemists, control 25 chemists that worked in that department, and as I J.C. Schmitt/Vogelzang 12 1 said earlier that department was involved in 2 maintaining product specifications for all of the 3 Flintkote products and maintaining a quality control 4 surveillance for all of the products. 5 Q. When you say all of the products, do you 6 mean all of the products coming out of the East 7 Rutherford Plant or all of The Flintkote Company? 8 A. All of The Flintkote Company. 9 Q. How many -- . Strike that. 10 What locations did The Flintkote 11 Company maintain during your tenure as General 12 Manufacturing Chemist from 1963 -- 1953 to 1962? 13 A. Well, in addition to the East Rutherford, 14 New Jersey plant, there were two plants in Chicago 15 Heights, Illinois, a plant in New Orleans, 16 Louisiana, plant in Vernon, California near Los 17 Angeles. There was a felt mill in Ridgefield Park, 18 New Jersey. There was a rubber products plant in 19 Whippany, New Jersey. There was a felt mill in 20 Mount Carmel, Illinois. There was a board mill in 21 Meridian, Mississippi. There was an adhesives plant 22 in Manyunk, just outside of Philadelphia, 23 Pennsylvania. I can't rule out any others. Right 24 now I can't recall any others. 25 Q. That's fine, and if later on you remember J.C. Schmitt/Vogelzang 13 1 another plant, if you could just let me know? 2 A. Yes, sir. 3 Q. So is it fair to say that you were 4 familiar with all the Flintkote products at that 5 time on some level? 6 A. That's correct. 7 Q. Were you in control of how much, if any, 8 asbestos was mixed into The Flintkote Company's 9 products? 10 A. No. 11 Q. Who was in charge of that? 12 A. That would have been either the Plant 13 Chemists in the -- in whatever plant was involved or 14 it would have been someone in the Research and 15 Development Department that developed the product. 16 Q. What were some ofthe factors that 17 determined whether asbestos was used in a Flintkote 18 product? 19 A. Well, I don't knowbecause Iwasn't 20 involved in any of the original formulation of the 21 products, so I don't know what the reason was for 22 incorporating asbestos fiber. 23 Q. Were you ever present in any meetings 24 while at The Flintkote Company that discussed 25 whether or not to use asbestos in the products? J.C. Schmitt/Vogelzang 14 1 A. No. 2 Q. So I take it you were never a Plant 3 Chemist, is that correct? 4 A. I was a Plant Chemist in the East 5 Rutherford Plant for that one year period in 1950. 6 Q. And as a Plant Chemist in 1950, you never 7 determined how much asbestos was used in any of the 8 products? 9 A. I never had the responsibility for 10 determining how much should be in there. We made 11 the products according to formulations which had 12 been established prior to -- prior to my time with 13 The Flintkote Company really, and my duties were 14 just to make sure that the proper amount was used. 15 Q. Well, since you were a Plant Chemist 16 could you tell me why asbestos was used or what were 17 the factors that determined it? 18 A. No, sir, I could not. 19 Q. And is that because you never needed to 20 know that as a Plant Chemist? 21 A. I never needed to know, no. The formulas 22 were established by someone in the Research 23 Department or somebody prior to my employment with 24 Flintkote and I had no reason to know why they used 25 it. J.C. Schmitt/Vogelzang 15 1 Q. Then in 1962 you switched positions with 2 The Flintkote Company? 3 A. Yes. 4 Q. 5 title? And what did you -- what was your new 6 A. I was named Product Manager for flooring 7 and adhesives. 8 Q. 9 A. How long did you hold that position? That was until 1965. The title changed 10 somewheres in there, but I held the same position 11 until 1965. 12 Q. Did your title change to Assistant 13 General Manufacturing Manager? 14 A. Yes. 15 Q. But it was essentially the same job 16 duties? 17 A. It was the same job. 18 Q. And how would you describe your job 19 duties from 1962 to 1965? 20 A. Well, I reported to the Vice-president of 21 Manufacturing and my responsibilities were to 22 oversee the operations of the plants that made floor 23 tile and made the liquid coating and adhesive and 24 mastic line. 25 Q. And since you were an overseer, does that J.C. Schmitt/Vogelzang 16 1 mean you were at meetings all day or what would you 2 do -- 3 A. Well, no. Sorry. I kept in touch with 4 the plants through correspondence and through phone 5 conversations with the Plant Managers. I followed 6 their progress in sales, in quality, labor 7 relations, costs, primarily costs, and the general 8 relations with the Sales Department. I made certain 9 that they followed all of the good operating 10 procedures of The Flintkote Company with respect to 11 labor relations and costs and product quality and 12 service. It was just another arm of the 13 Vice-president of Manufacturing. 14 Q. When you oversaw the labor relations, was 15 this at -- which plant was this at? 16 A. Well, this would have been at Chicago 17 Heights tile plant, the Chicago Heights liquid 18 products plant, the East Rutherford liquid products 19 plant and the New Orleans liquid products and floor 20 tile plant. We had another plant in -- for a brief 21 period of time -- in Massachusetts, just outside of 22 Boston. We had another plant for a brief period of 23 time in Whippany, New Jersey, floor tile plant. So 24 those were the plants that I was involved with. 25 Q. When you dealt with labor relations, J.C. Schmitt/Vogelzang 17 1 would you deal with the employees of The Flintkote 2 Company through a Union? 3 A. No. I followed labor relations through 4 the Works Manager or the Plant Manager of the plant 5 and through the corporate personnel and the plant 6 Personnel Departments. The actual negotiations were 7 done by a negotiating committees in the plant and by 8 the Plant Manager. 9 Q. Did you ever deal with employees on a 10 face-to-face basis? 11 A. No. 12 Q. From 1962 to 1965 as a Product and 13 Quality Manager, did you ever hear of any complaints 14 from employees regarding lung problems? 15 A. No. 16 Q. Did you deal with any type of injury of 17 the workers from 1962 to '65? 18 A. Not specifically dealing with injuries to 19 workers or any health problems with the workers. 20 What I would look at was the overall safety record 21 and injury record of the particular plants that I 22 was concerned with. 23 Q. If there was a dangerous condition in one 24 of the plants that was injuring the workers, would 25 that ever get to you up the chain of command and J.C. Schmitt/Vogelzang 18 1 would you ever have the authority to fix that 2 problem? 3 A. It's difficult to answer. I don't know 4 of any dangerous conditions, but if there were 5 hypothetically some condition in a plant which posed 6 a danger for the employees, I would expect to be 7 notified of it and I would follow up with some 8 measures taken at local level to correct it, if that 9 occurred. 10 Q. You listed several plants that you were 11 Product and Quality Manager for from 1962 to '65. 12 Did all of those plants that you mentioned in all 13 the different cities have asbestos products in them? 14 A. Yes, all of those did. 15 MR. KADISH: Excuse me. 16 Clarification. Do youmean asbestos being 17 manufactured or asbestosproducts located in the 18 plant? 19 MR. VOGELZANG: Sure, I'll ask both. 20 BY MR. VOGELZANG: 21 Q. All those plants that youmentioned from 22 1962 to '65 that you oversaw, were they all 23 manufacturing asbestos products for The Flintkote 24 Company? 25 A. Yes, they were. J.C. Schmitt/Vogelzang 19 1 Q. During the time between 1962 and 1965 you 2 never received any complaints or notices about any 3 workers having lung problems, is that correct? 4 A. That's correct. 5 Q. Were there any types of safetyproblems 6 from 1962 to 1965 that you had to address personally 7 for the workers? 8 A. None that I recall, no. 9 Q. From 1962 to 1965 in the plants that you 10 were in charge of was there any type of ventilation 11 system that was put in place to control the dust 12 level that was in those plants? 13 A. Are you referring to installations that 14 were put in during that period of time? 15 Q. I'm referring to when the products, the 16 asbestos products were manufactured in the Flintkote 17 plants. 18 A. Well, all of the plants that used 19 asbestos fiber in their production had ventilation 20 and dust collection systems in there, which was 21 prior to 1962. 22 Q. Do you know when those ventilation 23 systems were installed? 24 A. No, sir, I do not. 25 Q. Do you know why those ventilation systems J.C. Schmitt/Vogelzang 20 1 were installed? 2 A. Well, they were installed to remove dust 3 from the plant atmosphere, not only asbestos but 4 there were other dusty materials that were in use, 5 too. 6 Q. Was that for the health of the workers 7 that the ventilation system was installed? 8 A. I don't know why they were installed. 9 Actually those installations preceded my employment 10 with the company in 1947. 11 Q. Did you ever upgrade or were you ever in 12 charge of any problems with those ventilation 13 systems from 1962 to '65 in any of the Flintkote 14 plants? 15 A. I was never aware of any problems with 16 them. I don't know of any upgrade, but that would 17 have been an Engineering Department function and not 18 my function. 19 Q. And then in 1965 -- . Strike that. 20 Between '62 and '65 I assume you 21 travelled to all these different plants? 22 A. Yes, I did. 23 Q. And you would walk through them at times 24 to make sure everything was okay? 25 A. Yes. J.C. Schmitt/Vogelzang 21 1 Q. Then in 1965 you were put in a new 2 position for The Flintkote Company? 3 A. Yes. 4 Q. What position was that? 5 A. That was Product Development Manager for 6 flooring products. 7 Q. What were your job duties as Product 8 Development Manager? 9 A. I supervised two and for a period of time 10 three chemists, research chemists, in the research 11 laboratories located in Whippany, New Jersey. Our 12 function was to develop new products, if new 13 products had to be developed, and to follow up on 14 any quality problems that existed in the plants or 15 that we learned of through the Sales Department, and 16 to evaluate raw materials, raw material sources for 17 the flooring products, make any design changes 18 requested by the Sales Department, conduct technical 19 service out in the field for the Sales Department. 20 Q. What flooring products were you 21 supervising over as a Product Development Manager? 22 A. Well, the flooring products that were 23 made in the flooring plants were the asphalt 24 asbestos tile and vinyl asbestos tile. 25 Q. Were you in charge of any adhesive J.C. Schmitt/Vogelzang 22 1 products? Would that be under the title of flooring 2 products? 3 A. No. Adhesive products were in another 4 department. 5 Q. How about the liquid asphalt products? 6 A. That would be another department, in 7 Research. You're limiting your question now to the 8 period from 1965, correct? 9 Q. Yes, and -- 10 MR. KADISH: '65 to when? 11 MR. VOGELZANG: That's what I was 12 just going to ask. 13 BY MR. VOGELZANG: 14 Q. How long were you the Product Development 15 Manager starting in 1965? 16 A. Until 1970. 17 Q. From 1965 to 1970 as the Product 18 Development Manager you said you were -- you would 19 make design changes if they were requested, is that 20 right? 21 A. That's right. 22 Q. Who would requestthe design changes? 23 A. Well, the requests came either from the 24 Sales Department or the Merchandising Department. 25 Q. From 1965 to 1970as Product Development J.C. Schmitt/Vogelzang 23 1 Manager did anyone within The Flintkote Company ever 2 request that you attempt to make a Flintkote product 3 by substituting the asbestos that had previously 4 been used in that asbestos product? 5 A. Well, actually in -- I think just prior 6 to 1965 the company did make a floor tile that did 7 not have asbestos in it. 8 Q. Now, had that floor tile before 1965 9 contained asbestos and it was changed so that it 10 didn't have asbestos? 11 A. No. It was a new product. It was 12 developed without asbestos. 13 Q. Why was the product developed without 14 asbestos? 15 A. It was developed for the purpose of 16 making a floor tile, vinyl asbestos floor tile that 17 resembled pure vinyl tile. It had a translucent 18 appearance to it. It was -- it wasn't an opaque 19 solid color tile. It had more of the resinous 20 translucency, and it was done totry to match the 21 competitive pure vinyl tilein themarket. 22 Q. So it was just for looks? 23 A. No, it was to develop a brand new 24 product, but, as I say, the primary difference was 25 the appearance, the translucency, the appearance of J.C. Schmitt/Vogelzang 24 1 it. 2 Q. Other than the difference in appearance, 3 did the lack of asbestos change the product at all? 4 A. No. 5 Q. During your tenure as Product Development 6 Manager from 1965 to 1970, other than this 7 translucent vinyl tile, was there any product that 8 was switched from containing asbestos to not 9 containing asbestos? 10 A. This would be any flooring product? No. 11 The translucent Vintal product that I referred to 12 was the only one, but that was a new product. 13 Q. And are you aware of any products by The 14 Flintkote Company from 1965 to 1970 that began being 15 developed without asbestos that had previously had 16 asbestos in it? 17 A. Are you talking about any product 18 including flooring? 19 Q. Yes. 20 A. I know of no product that was switched 21 from an asbestos content to a non-asbestos content. 22 I might mention that in the liquid products, if we 23 talk about them, not all the liquid products 24 contained asbestos. There were asbestos and 25 non-asbestos varieties of all those products. J.C. Schmitt/Vogelzang 25 1 MR. KADISH: I think Counsel is just 2 referring to products that contained asbestos that 3 might have been switched to non-asbestos for 4 whatever reason. Is that correct? 5 MR. VOGELZANG: Yes. 6 BY MR. VOGELZANG: 7 Q. In 1970 you acquired a new job title for 8 The Flintkote Company? 9 A. Yes. When I updated my resume earlier 10 this morning, in 1970 I was named the -- what did I 11 say now -- the Administrative Assistant to the 12 Managing Director of Corporate Research and 13 Development. 14 Q. 15 A. How long did you hold that position? Until 1974. 16 Q. Now, your resume here that I marked 17 Exhibit A states that you were Product Development 18 Manager of flooring from 1965 to 1985, is that 19 correct? 20 A. Well, that's what it says, but that's 21 incorrect. It's -- . That only describes the 22 position held from 1965 to 1970. 23 Q. Okay. 24 A. I don'tknow the origin of that 25 particular document thatyou'rereferring to. J.C. Schmitt/Vogelzang 26 1 Q. This was used as an exhibit in a previous 2 deposition taken in November of 2000. 3 A. I know, I've seen it, but I said I don't 4 know the origin of it. It is copied after a resume 5 which I had developed in 1965, sometime prior to 6 1970, but -- how my document became this, I don't 7 know. 8 Q. So from 1970 to 1974 you were in charge 9 of Corporate Research and Development for The 10 Flintkote Company, is that correct? 11 A. I was the Assistant to the Director of 12 Corporate Research and Development. 13 Q. Was that for the entire Flintkote Company 14 or just a particular plant? 15 A. That was for the entire Flintkote 16 Company. 17 Q. What were your specific job duties in 18 1970 to 1974? 19 A. Primarily to assist the Corporate 20 Director. We had a staff of engineers and chemists 21 and it was located in the corporate headquarters, 22 and we conducted outside research. We merely 23 supervised research done in outside laboratories on 24 various product projects. 25 Q. Did the outside research that you J.C. Schmitt/Vogelzang 27 1 conducted from 1970 to 1974 involve asbestos in any 2 way? 3 A. No, not really. Only one involved 4 asbestos product, floor tile, but the others were 5 connected with steelmaking and cement processes, 6 waterproofing systems and adhesive systems. We had 7 quite a number of projects going. 8 Q. What type of research was done regarding 9 asbestos in floor tile from 1970 to 1974 that you 10 were involved in? 11 A. Oh, the project I guess that occurred 12 over about one or two years of that period, an 13 assignment was developed for floor tile that did not 14 contain asbestos. 15 Q. Who did that assignment come from? 16 A. It came from our Flooring Division. 17 Q. What was the purpose of developing floor 18 tile that did not contain asbestos? 19 A. I don't know the purpose for the 20 assignment. The assignment was to develop a product 21 not containing asbestos. 22 Q. Did the Director that you were the 23 Assistant to know the purpose of making floor tile 24 that did not contain asbestos? 25 A. I don't know. It never appeared on the J.C. Schmitt/Vogelzang 28 1 documents that came to us from the Flooring Division 2 requesting the assignment. 3 Q. Was it more expensive to make floor tile 4 that did not contain asbestos? 5 A. I can't answer that because we never 6 completed the assignment. 7 Q. Why didn't you complete the assignment? 8 A. The -- . Well, basically the product, the 9 assignment was to make a vinyl asbestos -- or a 10 vinyl floor tile without asbestos equivalent in 11 quality to the vinyl asbestos tile, and to my 12 knowledge they were never able to match the quality 13 or the performance of the vinyl asbestos tile. 14 Q. And to your knowledge that problem with 15 achieving the quality was not a cost issue or was 16 it? 17 A. It was not a cost issue, it was a quality 18 issue. 19 Q. When did you first learn of the dangers 20 of asbestos to a human being? 21 A. In 1974. 22 Q. So when a design change was made when you 23 were the Assistant to the Director of Corporate 24 Research and Development or a design request to 25 change something, you never sat in any meeting and J.C. Schmitt/Vogelzang 29 1 discussed why that change was going to be made, it 2 was just a direct order that came down? 3 A. I never sat in any meetings. Our 4 responsibility began when a request was made by an 5 operating division to develop a certain product, and 6 that was all done by formal paperwork. What 7 preceded that paperwork I don't know and I don't 8 think I ever knew, but if it was approved by 9 management as a project, we would take it on. 10 Q. Was that project to remove the asbestos 11 from the floor tile the first project that you had 12 been involved in where The Flintkote Company had 13 tried to take the asbestos out of a product it was 14 manufacturing? 15 A. Yes. 16 Q. Were you involved in any other similar 17 projects of removing asbestos from a product with 18 The Flintkote Company after that? 19 A. No. 20 Q. Then in 1974 you switched titles again 21 with The FlintkoteCompany? 22 A. That's correct. 23 Q. What was your new title? 24 A. New title was Product and PlantSafety 25 Manager. J.C. Schmitt/Vogelzang 30 1 Q. 2 A. How long did you hold that position? I held that until my retirement in 1985. 3 Q. What were your job duties as Product and 4 Plant Safety Manager? 5 A. It was twofold. One was to follow the 6 our various manufacturing operations in their 7 health, employee health and employee safety 8 policies. We had a policy manual that described 9 what should be done and how it should be done. And 10 the second responsibility was to oversee the product 11 liability policy and performance of The Flintkote 12 Company. 13 Q. When you say oversee product liability in 14 Flintkote, what do you mean by that? 15 A. Well, Flintkote Company had a policy 16 manual that described the risk management and the 17 product safety and the products liability program of 18 the company. It had to do with advertising, sales 19 representation, the procedures for handling 20 complaints and for following up on complaints, 21 warnings and labels, when necessary, on products, to 22 warn of hazards, and to keep abreast of the use of 23 our product by the product users and make certain 24 that none of them were harmed by the products 25 themselves. J.C. Schmitt/Vogelzang 31 1 Q. You said in 1974 you became aware of the 2 dangers of asbestos, is that correct? 3 A. That's correct. 4 Q. How did you become aware of the dangers 5 of asbestos? 6 A. Well, in When I entered into that 7 position I became familiar with all of the work that 8 preceded my entry into that department, and one of 9 them was the OSHA Act of 1970, which identified 10 asbestos as one harmful material. 11 Q. Who held the position of Product and 12 Plant Safety Manager prior to you? 13 A. That would have been Mr. Seymour Weiss. 14 Q. Did you meet with Mr. Weiss about what 15 had beengoing on as Product and Plant Safety 16 Manager, is that how you learned about asbestos? 17 A. Yes, that's right. Met with him and he 18 turned over the file of that department to me. It 19 was my job to review it andfind out what had been 20 done and what was being done, what wasimportant. 21 Q. That file that you just spoke of, how far 22 back did that file go? 23 A. Well, I guess I don't know. It went 24 way back, almost to -- at least the part of the file 25 that I was aware of was back into the late '60's, J.C. Schmitt/Vogelzang 32 1 but that job and that department had existed as far 2 as I know in 1947. 3 Q. Did you read through that entire file as 4 Product and Plant Safety Manager when you entered 5 the job? 6 A. Well, I didn't read through the entire 7 file. It was several file cabinets, but I read what 3 was important and what was pointed out to me as 9 important and what I needed to learn quickly so that 10 I could function. 11 Q. Is it fair to say that you were in charge 12 of maintaining that file that held the information 13 of the Product and Plant Safety Manager? 14 A. Well, yes. I was in the office where 15 that file was held and I had responsibility for 16 keeping that file, yes. 17 Q. Did you ever check the file to see 18 how -- . Strike that. 19 Did you ever check the file that was 20 in your office to see when The Flintkote Company 21 first addressed the harms of asbestos? 22 A. That's a broad question. Part of that 23 file was the mandatory controls that the company had 24 to put in effect in 1970 following the Department of 25 Labor OSHA Act. J.C. Schmitt/Vogelzang 33 1 Q. Well, I'm not talking about OSHA. I'm 2 talking about what Flintkote -- how Flintkote 3 addressed harms of asbestos or anything that had to 4 do with possible harmful effects of asbestos in the 5 file that was maintained in your office? 6 A. Well, as I say, the file in the office 7 spelled out what was being done by law beginning in 8 1970. Now, I think that I mentioned earlier the 9 plants had dust collection and dust control systems 10 that preceded 1970, that preceded actually 1947. 11 MR. KADISH: I hate to interrupt, but 12 can we take a break? 13 MR. VOGELZANG: Yes. Let's take a 14 five minute break. 15 (Proceedings recessed from 11:25 a.m. 16 to 11:32 a.m.) 17 BY MR. VOGELZANG: 18 Q. Over the break, Mr. Schmitt, did you 19 discuss any part of this deposition? 20 A. Not really, no. 21 Q. When you say not really, what do you 22 mean? 23 A. Well, just a question about how long it 24 would take, but no substantive discussion. 25 Q. We were talking about what was in the J.C. Schmitt/Vogelzang 34 1 file in your office when you were Product and Plant 2 Safety Manager from 1974 to 1985 and you had 3 mentioned that there was stuff in there about the 4 OSHA standards, right? 5 A. Yes. 6 Q. Now, other than the OSHA standards, was 7 there any documents in that file that talked about 8 the harms of asbestos to Flintkote workers? 9 A. No. 10 Q. Now, to your knowledge that file had been 11 maintained for many, many years prior to you coming 12 into that position, is that correct? 13 A. That's correct. 14 Q. And there would be no reason for that 15 file to be destroyed ever, would there? 16 A. Not that I know of, no. 17 Q. Is it fair to say that that file 18 documented all safety concerns within The Flintkote 19 Company nationwide? 20 A. Yes, that's what itcontained, yes. 21 Q. When the OSHA standards cameout, that 22 was the first time that Flintkote Company became 23 aware in any way of the harms of asbestos to the 24 workers? 25 A. I can't speak for The Flintkote Company. J.C. Schmitt/Vogelzang 35 1 I don't know what The Flintkote Company knew prior 2 to or in 1970. 3 Q. Well, you would know because it was in 4 the file, right? 5 A. Well, the particular file I'm referring 6 to was the file concerning the compliance with the 7 OSHA standard, which had to do with, among other 8 things, of course it covered more than just 9 asbestos, but the mandatory steps that had to be 10 taken by The Flintkote Company and by employees with 11 respect to asbestos fiber. 12 Q. But that file that I'm referring to that 13 was in your office had to do with all safety issues 14 within The Flintkote Company, right? 15 A. Yes, that's true. 16 Q. Did The Flintkote Company ever perform 17 any of their own studies regarding the harms of 18 asbestos to human beings at any time? 19 A. Well, what particular studies are you 20 including? 21 Q. Any studies ever done by The Flintkote 22 Company regarding the harms of asbestos to people. 23 A. No, I know of none. 24 Q. Is there any that you were thinking of 25 there that I didn't include in my question? J.C. Schmitt/Vogelzang 36 1 A. Well, we, again, because of the OSHA Act 2 we were required to conduct tests in the plants in 3 the employee breathing zone and in the area where 4 asbestos fiber was used, to monitor the fibers in 5 the air to make sure that they were belowthe 6 standards, but those are tests and studies I would 7 include. 8 Q. While you were working at The Flintkote 9 Company from 1947 all the way through 1975, what 10 professional organizations did you belong to? 11 A. Well, bear in mind now we're only talking 12 about possibly a certain -- 13 MR. KADISH: You're talking about 14 Mr. Schmitt personally? 15 MR. VOGELZANG: Right. 16 THE WITNESS: One organization was 17 the Gypsum Association. Now, that only would have 18 been in the period after 1974. 19 Another one was the Asphalt Roofing 20 Industry Bureau. Again, that was in the period 21 after 1974. And bear in mind the company was the 22 member and I was merely a representative of the 23 company during certain periods of time. 24 Another one was the Asphalt and Vinyl 25 Asbestos Tile Institute for a period of time between J.C. Schmitt/Vogelzang 37 1 1962 and '65, maybe for a year or two I was a member 2 or a representative, and then another period after 3 1965 up until 1970. 4 And another organization was the 5 ASTM. I was a representative for the company to 6 that organization for a few periods of time, off and 7 on, beginning in 1962. Bear in mind it wasn't for 8 that entire period until 1985. 9 The National Safety Council, I was 10 the company representative under our membership to 11 the NSC. That was after 1974. 12 I can't recall any others offhand. 13 There may have been one or two others. 14 BY MR. VOGELZANG: 15 Q. For the Asphalt and Vinyl Asbestos 16 Institute that you joined or you were the 17 representative for starting in 1962, would you 18 attend the meetings of that Institute? 19 A. I attended the meetings of the Technical 20 Committee. I was the representative on the 21 Technical Committee. I wasn't a member of the 22 Institute itself, the Board. 23 Q. At any time between 1962 and 1974 while 24 you were on the Technical Committee of the Asphalt 25 and Vinyl Asbestos Institute, were the harms of J.C. Schmitt/Vogelzang 38 1 asbestos to humans ever discussed in any meeting? 2 A. No. Now, I wasn't a member for that 3 entire period. I said there were periods of time 4 during there where I was a representative, but not 5 for the full period. 6 Q. Do you say that because you think 7 asbestos was discussed in between there when you may 8 not have been there? 9 A. No. At least when I was there it was 10 never discussed and it never appeared in any of the 11 minutes that I was able to read, so -- . 12 Q. 13 A. What does ASTM stand for? American Society for Testing of Materials 14 was the original name of it. It's ASTM now. 15 Q. And did that involve testing materials 16 for quality only or also for safety? 17 A. Primarily for quality. 18 Q. Was safety of the worker a concern of 19 ASTM? 20 A. No. 21 Q. 22 Was asbestos -- . Strike that. Were the harms of asbestos ever 23 discussed at any time that you were involved with 24 ASTM between 1962 and 1974? 25 A. No. J.C. Schmitt/Vogelzang 39 1 Q. So in 1974 when you were promoted to 2 Product and Plant Safety Manager, the harms of 3 asbestos was a complete surprise to you, is that 4 fair to say? 5 A. No. I don't think I ever concerned 6 myself about harms of materials or which materials 7 were harmful, but I became aware of that knowledge 8 in 1974. I mean I knew prior to that just from my 9 college education there were a lot of harmful 10 materials out there in the world. I think that's a 11 very general statement, but I was aware of harmful 12 materials, yes, but not in detail. 13 Q. So when you were at Columbia University 14 did you ever sit in any kind of class that talked 15 about the harms of asbestos? 16 A. No. 17 Q. How about at the Polytechnic Institute in 18 Brooklyn? 19 A. No. 20 Q. How about at Cooper Union Institute of 21 Technology? 22 A. No. 23 Q. So Well, my question to you was was 24 the harms of asbestos a surprise to you in 1974 and 25 you essentially said no, is that correct? J.C. Schmitt/Vogelzang 40 1 A. Well, I don't think anything is a 2 surprise to me. I mean I can realize from my 3 engineering training that some materials can be 4 harmful. 5 Q. Had you realized prior to 1974 that 6 asbestos could be harmful to human beings? 7 A. Not really. I hadn't realized that at 8 all. 9 Q. Hadn't some OSHA standards come out in 10 1970? 11 A. Pardon me? 12 Q. Hadn't some type of OSHA standards 13 regarding asbestos come out in 1970? 14 A. Well, the OSHA Act was enacted in 1970, 15 which covered quite a number of subjects of health 16 and safety, including asbestos. 17 Q. So would it be fair to say that you had 18 some knowledge of the harms of asbestos starting in 19 1970? 20 A. I didn't have that knowledge because I 21 wasn't concerned with the OSHA Act in 1970. 22 Q. So when you were given the assignment as 23 Assistant to the Director of Corporate Research and 24 Development to try to develop floor tile without 25 asbestos, to your knowledge that had nothing to do J.C. Schmitt/Vogelzang 41 1 with the OSHA Act that came out in 1970 regarding 2 asbestos? 3 A. I said I had no knowledge of why that 4 assignment was given. I didn't connect it with 5 anything. 6 Q. Well, when was the first time you learned 7 of the OSHA Act of 1970? 8 A. In 1974. 9 Q. Now, from 1974 to 1985 as Product and 10 Plant Safety Manager you said you handled 11 complaints, right? 12 A. No, I didn'thandlecomplaints. 13 Complaints were handled at the local level where 14 they originated. I merely was advised of the number 15 of complaints, what complaints they were, the nature 16 of the complaints, and what was being done to 17 satisfy them. 18 Q. Were any of those complaints that you 19 dealt with on any levelhaving to dowith the harms 20 of asbestos? 21 A. No. 22 Q. Now, you alsosaid you dealt with warning 23 labels as the Product and PlantSafetyManager? 24 A. Yes. 25 Q. And that was from 1974 to 1985, right? J.C. Schmitt/Vogelzang 42 1 A. Right. 2 Q. Did you ever deal with any warning labels 3 regarding asbestos? 4 A. Yes. 5 Q. And what was thefirstinstance where you 6 dealt with a warning label regarding asbestos? 7 A. One instance I can recall was a private 8 label account we had with one of our competitors, 9 and they had asked that the label contain some 10 information about the content of asbestos fiber, but 11 it was on a liquid product and the wording was 12 not -- wasn't appropriate, because they were looking 13 at asbestos fiber as a raw material, whereas the 14 asbestos fiber in the product was encapsulated, 15 contained, and it wasn't available for free 16 respiration, so I was instrumental in eliminating 17 that labeling, that wording. 18 Q. Do you know what liquid product that was? 19 A. I can't recall what it was anymore, no. 20 Q. Do you know what the label said? 21 A. I can't recall that either. 22 Another instance was our West Coast 23 Division, Los Angeles had put a warning label or a 24 statement on the product label referring to the 25 content of asbestos fiber in three of the liquid J.C. Schmitt/Vogelzang 43 1 products, and the reason why they did that was 2 supposedly to comply with a California State 3 regulation on environmental release of asbestos 4 fiber, but careful reading of the regulations said 5 that any products in which the fiber was 6 encapsulated and bound into the product, they were 7 exempt from the regulation and from any labeling 8 requirements, so as a result we took the wording off 9 of that label, too. 10 Q. Did Flintkote ever sell raw asbestos to 11 any other manufacturers? 12 A. No. 13 Q. From 1974 to 1985 didFlintkote market 14 any of its own raw asbestosfibers with any type of 15 warning for the workers within The Flintkote 16 Company? 17 A. Well, Flintkote, we didn't have -- 18 generate raw asbestos fiber. We bought from outside 19 suppliers. 20 Q. Flintkote did not have its own mines? 21 A. No. 22 Q. Are you familiar with the different types 23 of asbestos fibers? 24 A. I'mfamiliar with some of them, not all 25 of them. J.C. Schmitt/Vogelzang 44 1 Q- Okay. Which fibers are you familiar 2 with? 3 A. Mainly the chrysotile fiber, which was 4 the fiber that we used most of the time, and the 5 other fiber that I'm familiar with that we used on 6 occasion was crocidolite. 7 Q. And did either type of asbestos fiber 8 have a distinguishing feature tothem? 9 A. I don't know what you mean by a 10 distinguishing feature. 11 Q. Light blue, a blue color? 12 A. Well, the crocidolite was referred to as 13 blue fiber, but it was not a very blue color. 14 Q. In 1985 you retired from The Flintkote 15 Company, right? 16 A. Yes. 17 Q. Did you ever do any consulting after 18 that, other than depositions like this, for The 19 Flintkote Company? 20 A. No. 21 Q. I'm showing what I've marked as Exhibit 22 B, and this is a list of Flintkote products that was 23 produced to us by Flintkote in this case. If you 24 could go through that list and just check and see if 25 anything is missing or anything is incorrect? J.C. Schmitt/Vogelzang 45 1 MR. KADISH: I'm not sure if 2 Mr. Schmitt would understand what you mean by 3 anything missing. I can understand the correct 4 portion of that question, but is this something 5 that he supposedly has seen before? 6 MR. VOGELZANG: I don't know. This 7 is the first timeI'vedeposed him. 8 MR. KADISH: It has got an exhibit 9 sticker on, so you might know whether it was taken 10 from a previous deposition of his or not. 11 MR. VOGELZANG: I don't know. 12 THE WITNESS: Well, this appears to 13 be a copy of an exhibit I have seen on at least one 14 or two occasions before in earlier depositions. 15 What appears on here seems to be correct. As 16 counsel pointed out, I can't recognize something 17 that might not have existed on this list or might 18 have existed and doesn't appear here now. I don't 19 know what's missing, but it is something that I have 20 seen before, yes. 21 BY MR. VOGELZANG: 22 Q. My question was just to make sure there 23 wasn't any major product that was completely missing 24 from the list. I understand it's a very complex 25 list. J.C. Schmitt/Vogelzang 46 1 A. It's a pretty complex list and it seems 2 to be a complete list of, as I said, similar to the 3 exhibit I've seen before. 4 Q. You've mentioned previously in this 5 deposition about liquid asphalt products. Can you 6 tell me generally what products those would be? 7 A. Well, in all cases they're products that 8 are madewith an asphalt base. They are fluid to a 9 degree, ranging from probably the consistency of 10 pancake syrup all the way up to heavy putty 11 consistency. They're all black. Some contained 12 asbestos fiber. They were used asadhesives, 13 coatings, waterproofing agents, mastic sealers, 14 joint sealers. They would be applied by either a 15 heavy spray or a brush or trowel. 16 Q. Did Flintkote make any adhesive product 17 that was not black? 18 A. Yes, they made two types of adhesive 19 products that were not black. They had a rubber -- 20 it was a rubber operation out in Whippany, New 21 Jersey that made rubber adhesives, tire coating 22 adhesives, and adhesives for ceiling tiles. There 23 was another operation I mentioned earlier in 24 Manyunk, Pennsylvania. They made a series of 25 adhesives that were resin based, light colored J.C. Schmitt/Vogelzang 48 1 mastic held in? 2 A. May have been as small as one gallon, but 3 most often were in five gallon pails. 4 Q. Exhibit B shows the trowel mastic 5 contained between 22 and 25 percent asbestos. Do 6 you have any reason to disagree with that? 7 A. I cannot disagree with it, no. 8 Q. Do you know where the trowel mastic was 9 distributed within the United States? 10 A. Well, I believe it was made in all of the 11 plants, so it would be distributed pretty much over 12 the entire United States. 13 Q. Is there any other mastic product that 14 Flintkote made that was applied with a trowel? 15 A. Oh, yes. Plastic cement was applied with 16 a trowel. Another trowelable type, but it was 17 applied with a gun-type tube thing, that would have 18 been the joint cement. There were other trowelable 19 mastics. I can't recall offhand all of them. 20 Q. Could the trowel mastic be used on a ship 21 for insulation of pipes or weatherproofing of pipes? 22 A. No. 23 Q. And why couldn't it be used for that? 24 A. Well, when you talk about ships and 25 piping and so forth you're talking about usually hot J.C. Schmitt/Vogelzang 49 1 pipes, and being asphalt based it would soften and 2 run off at temperatures about 100 to 120 degrees, so 3 it couldn't be used for that purpose. It wouldn't 4 be used because it's not an insulating material, and 5 being flammable I don't know that it would be used 6 on board ship because of its flammability. 7 Q. Do you know that the trowel mastic was 8 not used on ships? 9 A. I don't know that. 10 Q. Now, could the trowel mastic be applied 11 over pipe insulation toweatherproof that 12 insulation? 13 A. Well, the purpose of trowel mastic is a 14 weatherproof and waterproofing agent on outdoor 15 roofs around parapets, around pipes and roof edges, 16 and so forth. That's the purpose of it. I don't 17 know whether it could be used on pipes because as I 18 said it being an asphalt product, it softens very 19 easily and would just run off. I don't know that it 20 would be used, and they're not weatherproofing 21 anything aboard ship because it's not exposed to the 22 weather, it's all interior shippiping. 23 Q. Well, there's outdoor piping as well, and 24 if the pipes did not contain a hot substance you 25 could very well use the trowel mastic on that pipe, J.C. Schmitt/Vogelzang 50 1 isn't that correct? 2 A. I don't know that. 3 Q. Have you ever heard of the Newport 4 Shipyard in Virginia? 5 A. Yes, I have heard of that. 6 Q. Do you have any knowledge as to whether 7 Flintkote supplied any products to the Newport 8 Shipyard during your term with The Flintkote 9 Company? 10 A. I don't know that. 11 Q. Do you know who would know that 12 information? 13 A. Most likely somebody in the Sales 14 Department who was in the Virginia area. 15 Q. So as to matters of distribution locally, 16 Flintkote maintained separate offices that were in 17 charge of that? 18 A. Well, the organization of the Sales 19 Department started out with a Vice-president of 20 Sales in the corporate headquarters, and then there 21 were Regional Sales Managers and then reporting to 22 Regional Sales Managers were District salesmen and 23 District Sales Managers, so there was a general 24 hierarchy of salesmen going down to the salesmen in 25 the field. J.C. Schmitt/Vogelzang 51 1 Q. Did the Sales Department in Flintkote's 2 headquarters keep records of every end user of a 3 Flintkote product? 4 A. I don't know that. 5 Q. So is it fair to say that you can't 6 testify as to the distribution of Flintkote products 7 except in a very general manner? 8 A. I don't know anything about the 9 distribution of the products, other than generally 10 that they went to certain areas surrounding the 11 plants, but beyond that I don't know of any 12 distribution. 13 Q. And so you can't say either way if 14 Newport Shipyard as supplied with Flintkote 15 products, right? 16 A. I can't say that at all. 17 Q. Was there a particular Flintkote product 18 that was used on ships to your knowledge? 19 A. Again, I don't know about products used 20 on ships. I know of one product that was formulated 21 for particularly Navy ships. I don't know about 22 maritime ships. 23 Q. What product was formulated for Navy 24 ships? 25 A. That was the Flintdek. J.C. Schmitt/Vogelzang 52 1 Q. 2 A. How do you spell that? F-l-i-n-t-d-e-k. It's one word.. I don 't 3 know if that appears on here (indicating) or not. 4 Flintdek, it appears on here It appears on Exhibit 5 B. 6 Q. And on Exhibit B, Flintdek, it states is 7 that Flintdek contains 6 percent asbestos. Do you 8 have any reason to disagree with that? 9 A. I can't disagree with that. 10 Q. 11 A. How was Flintdek used? Well, -- 12 MR. KADISH: I object to the form of 13 that. You mean how was it designed to be used? 14 BY MR. VOGELZANG: 15 Q. Sure. How was it designed to be used? 16 A. Well, Flintdek was designed as a compound 17 to be coated on surfaces. It had a sand filler in 18 it, that when the Flintdek dried on the surface, 19 particularly metal surfaces, the sand would give it 20 a non-skid type of coated surface, and I mention 21 that because one of the Flintdek came in 22 various colors. As I recall there was a gray and a 23 green and a red, and maybe in two other colors, but 24 one version of it was formulated to match the Navy 25 slate gray. It was formulated as a Navy slate gray J.C. Schmitt/Vogelzang 53 1 variety of Flintdek for use by the Navy if they ever 2 boughtit, but I don't know -- as I say, I don't 3 know whether they ever purchased any of it or not. 4 Q. Was Flintdek sold to companies or places 5 other than the Navy? 6 A. Yes, it was. 7 Q. Are you familiar with any products that 8 Flintkote made for coating underneath rail cars of 9 trains? 10 A. Yes. 11 Q. What products would those be? 12 A. Those are some of the railroad coatings. 13 There are a few of them I think in that Exhibit B. 14 There were two varieties. Some contained asbestos, 15 some did not, but they were usually applied by spray 16 coating. 17 Q. Now, the first page of Exhibit B shows 18 several railroad car cements. Are those some of the 19 products that you're talking about? 20 A. Yes, right. 21 Q. And the range of asbestos content goes 22 from 13 percent up to 29 percent. Do you have any 23 reason to disagree with those percentages? 24 A. I can't disagree with that. 25 Q. Is there any mastic product that J.C. Schmitt/Vogelzang 54 1 Flintkote produced that was generally applied with 2 hands, the worker would actually apply the mastic 3 with their hands? 4 A. No. 5 Q. Is there any product at all that -- any 6 Flintkote product that you can think of that was 7 applied with hands? 8 A. Not that I can recall, no. 9 Q. How would you describe the railroad car 10 cements, the consistency and the look of it? 11 A. Most of them were relativelythin. I 12 think the terminology used within the company was 13 heavy paint consistency. That would be much heavier 14 than any house paint that one would come across. It 15 would be a very thick material, it would be 16 approaching honey and molasses in consistency. 17 Q. Did it have a general color to it? 18 A. They were all black. 19 Q. Were there any products that were made 20 according to military guidelines, other than 21 Flintdek, that had to pass or had to qualify for a 22 products list that was used by the military, 23 anything like that? 24 MR. KADISH: I'll object just to the 25 extent that you're referring to the Flintdek as J.C. Schmitt/Vogelzang 55 1 being designed according to military guidelines. I 2 think Mr. Schmitt's testimony was that the company 3 designed it with the hope that the Navy would 4 purchase it, but I don't think he ever testified one 5 way or another as to whether or not it was designed 6 in accordance with any Naval or military guidelines. 7 Maybe you want to ask that first or reformulate the 8 question. 9 BY MR. VOGELZANG: 10 Q. Mr. Schmitt, were there any products that 11 Flintkote made that had to comply with military 12 guidelines? 13 A. One that I can recall was an export box 14 sealer. In fact, that was made at the East 15 Rutherford Plant while I was there, and that was 16 formulated to meet the requirements of a military 17 spec, I think it was an Army spec, on box sealer for 18 export shipping, and we had to test it to meet those 19 requirements and then we had to obtain approval -- I 20 don't recall the terminology -- but it was some sort 21 of certified approved list or something like that, 22 that we had to submit samples to some testing agency 23 and they had to approve it before we could sell it 24 to the military. That's the only one I can recall. 25 I don't recall -- . I know there are approved lists J.C. Schmitt/Vogelzang 56 1 and military testing and stuff, but I don't know of 2 any other products that were formulated to that. 3 Q. What did you call that material? 4 A. Export box sealer. That was the name of 5 it. 6 Q. Did the export box sealer contain 7 asbestos? 8 A. I don't believe that it did. 9 Q. Do you know when approximately it was 10 made? 11 A. I can't recall all the dates, but at 12 least it was being made during the period of time 13 1950 to '51 when I was the Plant Chemist in the East 14 Rutherford Plant. 15 Q. Were there any other Flintkote products 16 that had to meet any guidelines say for the Coast 17 Guard or for passenger ships, anything like that? 18 A. Not that Iknow of. 19 Q. Was there any particular Flintkote 20 product that was -- . Strike that. 21 Was there any Flintkote mastic 22 product that was generally applied with a brush? 23 A. No. 24 Q. Was there any Flintkote product that you 25 know of that was applied with a brush? J.C. Schmitt/Vogelzang 57 1 A. Yes. 2 Q. What products or product would that be? 3 A. Well, some of the external coatings for 4 weatherproofing or waterproofing coatings were 5 applied by brush. 6 Some of the roof cements and roof 7 coatings on built-up roofs, they were applied by 8 brush. 9 The Flintdek that I mentioned before, 10 that non-skid coating, that was used on walking 11 surfaces and metal surfaces and industrial floors, 12 that could have been applied by brush. 13 Some of the floor tile adhesives were 14 thin enough. In fact, one adhesive which did not 15 contain asbestos was called on brush-on adhesive. 16 That was a thin floor tile adhesive coating applied 17 by brush. 18 There were quite a number of products 19 that could have been applied by brush. Asphalt roof 20 primer could be applied by spray or brush. 21 Q. Can you give a general description of the 22 Flintkote product, the consistency of it, that would 23 be applied by brush? 24 A. Something again in the category of 25 perhaps thin molasses or pancake syrup. And I might J.C. Schmitt/Vogelzang 58 1 add when we talk about a brush in this case, we're 2 not talking about a sable fiber paint brush. We're 3 talking about heavy bristle brushes, something like 4 you see the street sweepers using or the people 5 coating driveways, they're using a very stiff 6 bristle brush. That's the type of brush that was 7 used. 8 Q. Were all the products that were applied 9 with the brush black in color? 10 A. Well, most of the products on -- or all 11 of the products on this Exhibit B list were all 12 black in color, and the brush-on tile adhesive was a 13 light color, that was a resin based. That did not 14 contain any asbestos. Some of Atlas resin adhesives 15 that were used as adhesives for wallboard or ceiling 16 tile, they could have been applied by brush, some of 17 them were; some of them were applied by putty knife. 18 They were light colored. 19 Q. And I may have asked you this, but did 20 any of the light colored adhesives contain asbestos? 21 A. No, they did not. 22 Q. How was the export box sealer packaged? 23 A. I think it was mostly in five gallon 24 pails. 25 Q. Now, I know you've said how the products J.C. Schmitt/Vogelzang 61 1 distribution of any of the particular products on 2 this list? 3 A. No, I'm not. 4 Q. Are you familiar with a product called 5 Unimastic 150 or FR-100? 6 A. I recall the name, but I'm not that 7 familiar with it. 8 Q. All right. I'm getting this off of 9 Exhibit B from Flintkote and the description is 10 pigment resin coating for insulation, fire 11 retardant. Does that refresh your memory at all? 12 A. Yes, it does. That's what the FR stands 13 for, fire retardant. 14 Q. And do you know in what context this 15 Unimastic 150 would be used in? 16 A. Well, the insulation coatings were a 17 family of products that were made to apply over 18 mainly exterior insulated pipes and tanks. Seme of 19 them were designed for cold tanks and ice storage 20 places and cold storage and cold pipes. They were 21 primarily coatings that could be applied by brush, 22 sometimes by spray, to the outside ofthe insulation 23 on the pipes or the tanks or the otherstructures, 24 to weatherproof them and waterproof them so that the 25 insulation wouldn't soak up water. J.C. Schmitt/Vogelzang 62 1 Q. Can you say one way or another if this 2 product would be used on a ship? 3 A. Well, I can't say whether it could be 4 used. Again, I can't imagine it being used because 5 of its asphalt content and flammability. 6 Q. But you have no knowledge of whether 7 Unimastic 150 was used on ships, do you? 8 A. I don't know that. 9 Q. And the description says pigment resin 10 coating, so would this mean it's a lighter coating? 11 A. Yes, pigments would have lightened the 12 asphalt up somewhat. 13 Q. How would you describe the color? Would 14 it be a tan or a white? 15 A. I don't know. I can't recall that any 16 longer. 17 Q. But you could say that Unimastic 150 was 18 not black, is that a fair statement? 19 A. No, it was pigmented, so that it had some 20 color to it. 21 Q. So you're agreeing with me in that it was 22 not black? 23 A. Yes. 24 Q. And Unimastic 150 is listed as 7.5 25 percent asbestos, and you have no reason to disagree J.C. Schmitt/Vogelzang 63 1 with me on that, do you? 2 A. I can't disagree with that. 3 Q. Looking at Exhibit B there's a product 4 called number 227 Underbody Coating, and the 5 description is military spec underbody coating 6 asphalt cutback. 7 Are you familiar with that product at 8 all? 9 A. 10 name. Not specifically, but I recognize the 11 Q. What would military spec mean? 12 A. It would mean formulated to meet some 13 military specification. 14 Q. Can you describe what that product would 15 look like? 16 A. Well, it was one of the underbody 17 coatings. In this particular case they mention a 18 cutback. They were emulsion types, too. They were 19 black, they were shiny, they were applied with a 20 heavy spray gun, which was more like a nozzle, spray 21 nozzle about a quarter-inch, and they were applied 22 under cars. Now they don't do it any longer, but 23 they were applied under car bodies and truck bodies 24 to -- as a corrosion resistant coating and to 25 prevent dents and stone bruises and so forth. J.C. Schmitt/Vogelzang 64 1 Q. I forgot to ask earlier, the FR100 2 Unimastic, do you know what kind of container that 3 would be shipped out in? 4 A. I don't recall specifically what type, 5 but it would have been fifty-five gallon drums or 6 five gallon pails. 7 Q. But it would either be in five gallon 8 pails or fifty-five gallon drums? 9 A. Yes. 10 Q. How about the number 227 Underbody 11 Coating, how would that be shipped out? 12 A. Again, it depends on the end use. Most 13 often if it went to a body shop or a Fisher Body 14 plant, it would be shipped in fifty-five gallon 15 drums, because the pumping, spraying equipment they 16 would use would be equipped with a drum follower, 17 which went right directly into the drum. 18 Q. Looking at Exhibit B,there's a product 19 listed Hydrostatic Mastic, the synonymous name is 20 710-21, and the description is semi-mastic vapor 21 barrier coating. 22 23 product? Do you know anything about that 24 A. Not specifically, no. 25 Q. Do you know what that product would look J.C. Schmitt/Vogelzang 65 1 like? 2 A. Well, it was a coating. It would be 3 probably a brush or spray consistency. It would be 4 black. It would be shiny black, and used mainly as 5 a weatherproof coating, waterproofing and 6 weatherproofing. 7 Q. What kind of container would it be 8 shipped out in? 9 A. It would either be five gallon pails or 10 fifty-five gallon drums. 11 Q. I've just got one more on this list. 12 It's called Rain Patch all-weather mastic? 13 A. Yes. 14 Q. And the description is plastic cement 15 treated to bond to wet surfaces. 16 Are you familiar with that Flintkote 17 product? 18 A. Yes. 19 Q. And could yougive me a physical 20 description of that product? 21 A. It was very heavy consistency, somewhat 22 like a very heavy peanut butter, and it would be 23 applied by trowel. It would be black, it would 24 smell of paint thinner. 25 Q. In whatcontext would Rain Patch be used? J.C. Schmitt/Vogelzang 66 1 A. Primarily for outside roof surfaces 2 around openings in the built-up roofing or around 3 the shingle roof surface, but it had a bonding agent 4 in that permitted it to be used on damp surfaces so 5 that it would stick to it, whereas ordinarily the 6 plastic cement would not stick to a damp surface. 7 Q. You said this was used primarily for 8 roofing, but it could have other uses, is that fair 9 to say? 10 A. Well, that was its intended use. 11 Q. When you started with Flintkote in 1947 12 what was the company name? Was it The Flintkote 13 Company? 14 A. Flintkote Company. 15 Q. Did any changes occur as far as acquiring 16 or merging with any companies or name changes while 17 you worked there? 18 A. Well, yes. Towards the tail end there 19 was a change. 20 Q. What was the change? 21 A. I think it was in 1980 the Genstar 22 Corporation acquired The Flintkote Company. 23 Q. Are you aware of anyother corporate 24 changes while you worked at Flintkote? 25 A. No. J.C. Schmitt/Vogelzang 67 1 MR. RADISH: You mean corporate name 2 changes or acquisitions, mergers? 3 MR. VOGELZANG: Any changes at all. 4 THE WITNESS: Well, what do you mean 5 by that? 6 BY MR. VOGELZANG: 7 Q. Well, I mean you tell me. If you know of 8 a corporate change as far as the status of 9 incorporation or a name change or -- 10 A. Well, would you include acquiring -- 11 Flintkote Company acquiring other companies? 12 Q. Yes. 13 A. Well, there were quite a number of them, 14 but they all became Flintkote Company. 15 Well, for an example, in 1945 16 Flintkote acquired Tiletex Company. That was prior 17 to my employment there. But they then sold 18 Flintkote tile, so there was no corporate change 19 there, but the corporation got a little bigger. 20 Q. So in 1945 is when Flintkote began 21 selling vinyl tile? 22 A. Yes. 23 Q. Were there any other acquisitions that 24 added new products to Flintkote's line of products 25 while you worked at Flintkote? J.C. Schmitt/Vogelzang 68 1 A. Oh, yes, quite a number of them. 2 Q. 3 today? Any major ones that are worth mentioning 4 A. Well, we acquired a couple of cement 5 companies, Portland Cement Companies. We acquired a 6 stone quarry and ready mix concrete operation in 7 Maryland. The U.S. Lime Corporation out in 8 California and Nevada and Arizona. For awhile we 9 had -- we had a box -- cardboard corrugated carton 10 manufacturer. These were all acquisitions that 11 became Flintkote operations. 12 Q. Any other ones that you can think of? 13 A. There were other ones. I can't think of 14 them all. 15 Q. Earlier you mentioned that you're 16 familiar with chrysotile and crocidolite asbestos 17 fibers? Which type of fiber would have been in the 18 Colorcoat mastic. 19 A. Chrysotile. 20 Q. And how do you know that chrysotile only 21 was used in that Colorcoat? 22 A. It goes back to the period of time when I 23 was in the department handling specifications and I 24 knew what raw materials were used and where they 25 were obtained from. J.C. Schmitt/Vogelzang 69 1 Q. What year were you in charge of that or 2 had knowledge of that? 3 A. Well, that started in '47 and went up 4 until 1962. 5 Q. Was there any reason that chrysotile was 6 used rather than crocidolite in the Colorcoat 7 product? 8 A. I don't know that. 9 Q. How about for the A-66 product? 10 A. Chrysotile. 11 Q. All the products that we talked about, 12 would that all be chrysotile? 13 A. Yes. 14 Q. And are you aware of any reason why one 15 asbestos fiber was used over another in any of the 16 products that we've talked about? 17 A. I have no knowledge of that. 18 Q. Do you know where you acquired the 19 asbestos fibers? 20 A. From a number of suppliers.There was 21 Thetford Mines Corporation, Canada. There was Bell 22 Mines, Johns Manville, and perhaps two or three 23 other asbestos suppliers. I can't recall all the 24 names now. 25 Q. Do you know the owner of the Thetford J.C. Schmitt/Vogelzang 70 1 Mines while you were working at the Flintkote 2 Company? 3 A. No. 4 Q. The asbestos fiber that you received from 5 the Bell Mines, was that packaged in Johns Manville 6 material? 7 A. Packaged in Johns Manville material? 8 Q. He will, you said Bell Mines from Johns 9 Manville. 10 A. Well, Bell Mines was one supplier and 11 Johns Manville was another one, and I think Ruberoid 12 was another supplier for a period of time. 13 Q. Did the fiber that you received from 14 Johns Manville come in bags? 15 A. For a period of time it came in bags, and 16 then it was shipped in paper and then also in 17 plastic bale covers. 18 Q. When did it switch to plastic bale 19 covers? 20 A. I don't recall when that change was made. 21 Q. 22 '70's? Do you know if that was in the '60's or 23 A. I won't speculate. I don't know. 24 Q. During the time that you worked at 25 Flintkote do you ever recall any Johns Manville J.C. Schmitt/Vogelzang 71 1 fiber packaging having any type of warnings on it? 2 A. I don't recall that, no. 3 Q. So are you saying you don't remember if 4 there was a warning or there was not a warning? 5 A. I don't know for that whole period of 6 time whether there was a warning or not. I didn't 7 recall seeing any. 8 Q. Was there any particular product that 9 Flintkote used crocidolite in? 10 A. Yes, only one. 11 Q. What product was that? 12 A. That was asbestos cement pipe. 13 Q. Do you know why the crocidolite was used 14 in the cement pipe only? 15 A. No, I do not. 16 Q. Did Flintkote sell products for 17 manufacturers, because I know Flintkote manufactured 18 a lot of products, but did it just sell some 19 products? 20 A. I don't understand your question. 21 Q. Were there any products that Flintkote 22 would receive from another manufacturer and package 23 for that manufacturer and ship out? 24 A. Are you talking -- are you speaking about 25 private label? J.C. Schmitt/Vogelzang 72 1 Q. Yes. 2 A. Well, Flintkote did buyprivatelabel 3 material from other manufacturers and sell it, and 4 by the same token Flintkote produced material for 5 private label sale by other manufacturers. 6 Q. What companiesdidFlintkote buy private 7 label material from? 8 A. Well, for a period of time we bought 9 asbestos cement siding from Johns Manville. We sold 10 Owens Corning Corporation fiberglass insulation bats 11 under the Flintkote label. I can't recall the 12 others. 13 Q. When that private label material would 14 come in, it wasn't packaged in any way, was it? Did 15 you have to do all the packaging and labeling, or 16 how did that work? 17 A. No, the private label material was 18 already packaged. All we did was warehouse it and 19 then resell it. 20 Q. So when it was sold would it have -- . 21 Strike that. 22 Take, for instance, the cement siding 23 from Johns Manville, when you bought that did it 24 come into Flintkote with the Johns Manville name on 25 it? J.C. Schmitt/Vogelzang 73 1 A. I think that had the Johns Manville name 2 on it, yes. 3 Q. And when it left it still had the Johns 4 Manville name on it? 5 A. Yes. 6 Q. Would there be anything on that cement 7 siding that would show that it had been in 8 Flintkote's possession? 9 A. No. 10 Q. And would that be the same for the Owens 11 Corning insulation? 12 A. Well, the Owens Corning insulation, I 13 think some of it had Flintkote labels on it when we 14 received it and some of it did not. 15 Q. Now, how would Owens Corning put a 16 Flintkote label on? 17 A. Well, the same reason that we did for 18 other companies. We would send them the labels and 19 they would fill the order with material with the 20 labels applied. 21 Q. What companies did you send Strike 22 that. 23 What companies bought private label 24 material from Flintkote? 25 A. One was Johns Manville. Mainly tile J.C. Schmitt/Vogelzang 74 1 cement, floor tile cement. And we had shipped some 2 building material, roofing materials, to Celetex. 3 We shipped floor tile cement to both Ruberoid and 4 Kentile. And we supplied some adhesives to I think 5 it was W.W. Henry. And let me try to recall some of 6 the other products. I can't recall, but there were 7 others, other companies. 8 MR. SMITH (VIA CONFERENCE PHONE): 9 This is Mike Smith. We've been going for a couple 10 of hours. I just didn't know how much longer you 11 had to go. 12 MR. VOGELZANG: I'm wrapping up here. 13 I would say within the next fifteen minutes. 14 MR. SMITH: Okay, great. 15 BY MR. VOGELZANG: 16 Q. Mr. Schmitt, did Flintkote have a pattern 17 where they would usually label the private label 18 material before it went out to the companies you 19 just listed or how would that work? Or was it 20 different for each product? 21 A. No, in most cases, in practically all of 22 the cases, the companies would supply the labels to 23 our plant. Celetex, for example, would ship a 24 package of labels and they would order so many pails 25 of some coating, for example, and we would apply J.C. Schmitt/Vogelzang 75 1 their label to those pails and then ship them to the 2 Celetex warehouse. 3 Q. Was there any company or manufacturer 4 that you worked with where one company required a 5 warning label on their particular product that you 6 would put on that product for them? 7 A. Well, I didn't work with those companies, 8 but at least I was aware of, I think I mentioned 9 before, the Celetex label, where I mentioned a 10 competitive label that they had a warning on it and 11 there was noneed for the warning. They revised 12 their label. But generally without -- . In fact, 13 that was the only instance. We would apply their 14 label. They designed their own label, they shipped 15 the label to us, we put the label on that material, 16 as long as it was consistent for the material. If, 17 for example, we required a do not freeze warning on 18 our label, they would require the same thing, 19 because you'redealing with the same type of 20 material. 21 Q. Were there ever any meetings between the 22 companiesregardinglabeling? 23 A. I don't believe so. I don't know of any 24 at least. 25 Q. None that you sat in at least? J.C. Schmitt/Vogelzang 76 1 A. None that I sat in, no. You're excluding 2 of course the possibility that a sales person from 3 Celetex and a sales person from Flintkote got 4 together when they made this deal for this private 5 label account. I mean -- 6 MR. KADISH: He's just asking were 7 you involved. 8 MR. VOGELZANG: Yes, I'm not 9 concerned with that. Thanks. 10 BY MR. VOGELZANG: 11 Q. Have you ever heard of Dr. Selikoff? 12 A. Yes. 13 Q. When did you firsthear of Dr. Selikoff? 14 A. Sometime shortly after 1974. 15 Q. In what context did you hear of 16 Dr. Selikoff? 17 A. Well, I read some articles or I read some 18 documents referring to his studies of the effect of 19 asbestos fiber on employees' lungs. 20 Q. The documents that you read written by 21 Dr. Selikoff, were those in the file that you 22 maintained in your office as Product and Plant 23 Safety Manager? 24 A. Some of those were in the file and some 25 of them came to me after 1974 when I acquired the J.C. Schmitt/Vogelzang 77 1 position. 2 Q. So is it fair to say that you do not know 3 when the articles by Dr. Selikoff were placed in the 4 file that was maintained by the Product and Plant 5 Safety Manager? 6 A. I don't know that. 7 Q. Once Dr. Selikoff's report was read by 8 you, did you discuss with anyone whether or not 9 warning labels should be placed on asbestos 10 products? 11 A. It didn't occur in that sequence, no. 12 Q. Why didn't it occur in that sequence? 13 A. Well, I don't know that that article 14 prompted me to even think about warning labels. 15 Q. Was there anything that ever prompted you 16 to think about warning labels regarding asbestos? 17 A. Well, yes, there were occasions when I 18 thought about that, yes. 19 Q. What occasions would that be? 20 A. Well, one was the occasion when the three 21 labels showed up in the Pioneer products, the 22 California products, and the other the Celetex 23 instance. 24 Q. And in those instances you made a 25 decision that warning labels were not necessary? J.C. Schmitt/Vogelzang 78 1 A. Yes. 2 Q. How did you come to that decision? 3 A. Well, the warning labels were mistakenly 4 phrased because the warnings are against inhaling 5 free asbestos fiber, that is the hazardous material. 6 You cannot inhale peanut butter or mastic. You 7 can't inhale floor tile. There's no hazard involved 8 in -- an asbestos hazard involved in the product in 9 which the fiber is encapsulated, so it was just a 10 misconception about the hazards of asbestos fiber 11 being a hazardous material and in its free form able 12 to cause a hazard by inhalation, but on the other 13 hand the warning labels were applied on products in 14 which the fiber was encapsulated and not in a 15 respirable form. 16 Q. So -- and tell me if I'm wrong -- 17 basically it was your opinion that the asbestos 18 coming out of Flintkote was encapsulated and 19 therefore not harmful? 20 A. That wasn't an opinion, that was a fact. 21 Q. All right. Did you hire some scientists 22 to do a study to determine if that's true? 23 A. No, sir. 24 Q. Did you base this off your own education 25 and knowledge? J.C. Schmitt/Vogelzang 79 1 A. I based it primarily on two sources of 2 information. One was the U.S. Department of Labor, 3 who declared that floor tile workers, among other 4 classes of laborers, were exempt from the asbestos 5 regulations because they were dealing with 6 encapsulated products, and I was also based it on 7 knowledgeable information from the State of 8 California. Their Department of Health said that 9 liquid products, roofing products and products used 10 in outdoors that had the fiber encapsulated and 11 bound in a binder did not present any asbestos 12 hazard. 13 So these are knowledgeable reports 14 that were documented and it wasn't based on my own 15 opinion. Of course my own opinion supported it, but 16 I was no authority. 17 Q. So you felt that the government findings 18 along with your own opinion was sufficient to 19 determine that warning labels were not necessary on 20 asbestos products? 21 A. Well, it supported that and there were 22 others in our company that I discussed it with that 23 didn't disagree with me. 24 Q. Were there those that did disagree with 25 you on your policy on warning labels? J.C. Schmitt/Vogelzang 79 1 A. I based it primarily on two sources of 2 information. One was the U.S. Department of Labor, 3 who declared that floor tile workers, among other 4 classes of laborers, were exempt from the asbestos 5 regulations because they were dealing with 6 encapsulated products, and I was also based it on 7 knowledgeable information from the State of 8 California. Their Department of Health said that 9 liquid products, roofing products and products used 10 in outdoors that had the fiber encapsulated and 11 bound in a binder did not present any asbestos 12 hazard. 13 So these are knowledgeable reports 14 that were documented and it wasn't based on my own 15 opinion. Of course my own opinion supported it, but 16 I was no authority. 17 Q. So you felt that the government findings 18 along with your own opinion was sufficient to 19 determine that warning labels were not necessary on 20 asbestos products? 21 A. Well, it supported that and there were 22 others in our company that I discussed it with that 23 didn't disagree with me. 24 Q. Were there those that did disagree with 25 you on your policy on warning labels? J.C. Schmitt/Vogelzang 80 1 A. Nobody disagreed with me on that, no. 2 Q. But given the governmental findings and 3 the opinions of yourself and your peers, you felt 4 that an independent study of the harms of asbestos 5 was not necessary, is that right? 6 A. Well, I wasn't faced with the decision of 7 whether an independent study was needed, but I don't 8 know of any independent study. 9 Q. Who would determine if an independent 10 study should take place regarding the harms of 11 asbestos within the Flintkote Company? 12 A. I don't know. 13 Q. Well, you were the Safety Manager, 14 weren't you? 15 A. Yes, I was the Safety Manager. 16 Q. Well, do you know under whose authority 17 conducting such a study would fall under, if not 18 yours? 19 A. I'm not certain what sort of study you're 20 referring to. If you can be more specific on the 21 time of study, perhaps I can answer you. 22 Q. Well, when you heard about the warnings 23 that were being used in California you said you 24 became aware of the fact that warning labels might 25 or might not be necessary on asbestos products. J.C. Schmitt/Vogelzang 81 1 A. Correct. 2 Q. My question is did it ever occur to you 3 or anyone in your company that a study should be 4 done independently to determine if asbestos was 5 harmful -- ? Strike that. 6 Did you ever Did it ever occur 7 to you that an independent study should be performed 8 to determine if there were harmful effects to people 9 using asbestos? 10 A. Well, -- 11 MR. KADISH: Excuse me. Are you 12 talking just in general or are you talking about 13 plant workers that worked in The Flintkote Company 14 plants making the products? Are you talking about 15 people that areusing -- 16 MR. VOGELZANG: If you want to object 17 to the form, -- 18 MR. KADISH: Yes, I'm objecting to 19 the form, because Ithink it's confusing. 20 THE WITNESS: Well, you're mixing 21 something up or you're getting me mixed up. 22 There was no question in anybody's 23 mind in the Flintkote Company, at least to my 24 knowledge, in 1974 that asbestos fiber was harmful 25 if inhaled. Now, there's no need to run a study on J.C. Schmitt/Vogelzang 82 1 that. There have been plenty of studies run. 2 Dr. Selikoff mentioned them, the NIAS branch of the 3 Department of Labor published studies. There's no 4 question that inhaling asbestos fiber is harmful. 5 If you're asking me whether we ever 6 left somebody inhale plastic cement to see if the 7 asbestos fiber was harmful, no. It would be stupid 8 to run a test of that nature, because you can't get 9 asbestos fiber out of plastic cement by inhaling it 10 or by anything else. The asbestos fiber is locked 11 in there for periods up to thirty, thirty-five years 12 and it never comes out. 13 BY MR. VOGELZANG: 14 Q. And that's your opinion even if the 15 material is sawed or cut or sanded? 16 A. Well, you can't saw or cut or sand 17 plastic cement. 18 Q. All right. So Flintkote never used any 19 warning labels on any of their products regarding 20 the harms of asbestos, is that right? 21 A. That's correct. 22 Q. And is it fair to say that you do not 23 know when the management at Flintkote first became 24 aware of Dr. Flintkote's studies, since you were not 25 the Safety Manager until 1974? J.C. Schmitt/Vogelzang 83 1 MR. KADISH: You mean Dr. Selikoff. 2 MR. VOGELZANG: Dr. Selikoff, excuse 3 me. 4 THE WITNESS: I don't know when they 5 became aware of that. 6 BY MR. VOGELZANG: 7 Q. Do you know anyone or do you have any 8 direct knowledge about the Newport News Shipbuilding 9 and Drydock Company? 10 A. No. 11 Q. Were you ever incharge ofthe record 12 keeping done by Flintkote as far as sales and 13 distribution? 14 A. No. 15 Q. Do you know of anyFlintkoteproducts 16 that was an adhesive used with turbines? 17 A. With which? 18 Q. Turbines. 19 A. No. 20 Q. Do you know of any adhesive product made 21 by Flintkote that would attach cloth lagging to 22 exterior pipes? 23 A. No. 24 MR. VOGELZANG: I think that's all I 25 have. Do you have any questions? J.C. Schmitt/Vogelzang 84 1 MR. KADISH: No, I don't have any 2 follow-up. 3 MR. VOGELZANG: Just me one more 4 minute to check my notes. 5 BY MR. VOGELZANG: 6 Q. Did Flintkote have an Industrial 7 Hygienist during the time that you worked at 8 Flintkote? 9 A. No. 10 Q. In 1947 when you began working at 11 Flintkote were they using asbestos in their 12 products? 13 A. Yes. 14 Q. And do you know when they first started 15 using asbestos products? 16 A. No. 17 Q. Was there any particular reason that 18 Flintkote did not employ an industrial Hygienist? 19 A. I don't know. I can't answer that. 20 MR. VOGELZANG: That's all I have. 21 Thank you. 22 MR. KADISH: Okay. That's it. 23 MR. VOGELZANG: Mr. Schmitt, at this 24 time you have the option to reserve your signature 25 so that you can read the transcript of this J.C. Schmitt/Vogelzang 85 1 deposition, check for any typos, or you can waive 2 your signature. 3 THE WITNESS: I would prefer to read 4 it. 5 MR. KADISH: Read and sign. Okay. 6 MR. VOGELZANG: The witness reserves 7 and we've requested the transcript within fourteen 8 days, and that's all I have to say. That's it. 9 Thank you. 10 (Deposition concluded.) 11 k -k -k 12 13 14 15 16 17 18 19 20 21 22 23 24 25 86 1 2 3 4 5 , 2001 6 7 8 9 I hereby certify that the evidence 10 and proceedings are contained fully and accurately 11 in the notes taken by me of the testimony of the 12 within witness who was duly sworn by me, and that 13 this is a correct transcript of the same. 14 15 16 17 Daniel R. Stout 18 Certified Court Reporter Notary Public 19 20 21 22 23 24 25 87 1 2 Page-Line 3 4 5 6 7 ERRATA From : To: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 89 1 2 3 4 5 6 , 2001 7 8 I hereby certify that I have read the 9 foregoing transcript of my testimony taken at the 10 within deposition and find it to be true and 11 correct. 12 13 14 15 16 JOHN C. SCHMITT, Deponent 17 18 19 20 21 22 23 24 25