Document MGM2yXqqGBznZ1kk1m68EV27z
IN THE CIRCUIT COURT THIRD JUDICIAL CIRCUIT MADISON COUNTY, ILLINOIS
IN RE: ALL ASBESTOS LITIGATION FILED BY SIMMONS, BROWDER, GIANARIS, ANGELIDES & BARNERD, LLC,
) ) ) ) )
Plaintiffs,
) )
-vs-
) )
BWDAC, INC., Defendant.
) ) ) )
THE VIDEOTAPED EVIDENCE DEPOSITION OF WILLIAM KOTZUM
Taken on behalf of the Plaintiffs July 18, 2013
Reported by Maria Elena Golden, CSR, RPR Illinois CSR License No. 84-3705
Page 2 1 I ND E X O F E XAM I NAT I ON S
2
3 WITNESS 4 WILLIAM KOTZUM - EVIDENCE
PAGE
5 Examination by Mr. Hampton.......................................................
11
6 Examination by Ms. Ross................................................................ 149 7
g
9
10 I N D E X O F E X H I B I T S 11
12 EXHIBIT NO.
MARKED
13 1 - BWDAC, Inc.'s Responses and Objections to Plaintiffs'
14 Manufacturer Interrogatories....................... 22
15 2 - Notice of Videotaped Deposition of
William Kotzum.............................................................
22
16
3-
Agreement for Sale of Assets,
17 2/2g/g1.................................................................................... 26
1g 4 - General Assignment and Bill of Sale, 7/14/g1.................................................................. 30
19
5-
BWD 19g6 Automotive Corporation
20 Catalog.................................................................................... 57
21 6 - 19g7 BWD Automotive Corporation Catalog.................................................................................... 57
22
7-
9/14/01Memo on Dana Letterhead to
23 Marcy Ducat and Denise O'Rourke
from Bill Kotzum.......................................................
69
24
PohlmanUSA Court Reporting (877) 421-0099
Page 3 1 I N D E X O F E X H I B I T S (CONTINUED)
2 EXHIBIT NO.
MARKED
3
8-
BWD Automotive Remanufactured
Clutches Analysis....................................................... 73 4
9-
Report of Industrial Hygiene Study,
5 November 1981................................................................... 94
6 10 - BWE Corporate Memo, 5/26/82, re Hygiene and Noise Surveys.......................................96
7
11 -
Report of Technical Services Study,
8 6/11/82 .................................................................................... 99
9 12 - Moise Survey and Hygiene Survey,
7/13/83.................................................................................... 101 10
13 -
BWD Memo, 3/10/93, to C. Shields of
11 OSHA from B. Peterson............................................ 104
12 14 - Memo Re Industrial Hygiene Results for the Ottawa Facility, January to
13 June 1995...................................................................................106
14 15 - "NIOSH Revised Recommended Asbestos
Standard," December 1976.......................................110
15
16 -
"Workplace Exposure to Asbestos,"
16 1980.................................................................................................114
17 17 - "Guidance for Preventing Asbestos Disease Among Auto Mechanics," June
18 1986.................................................................................................116
19 18 - "OSHA's position on the risk associated with asbestos exposure
20 at the current PEL," 5/13/99....................... 123
21 19 - Echlin Document Re Asbestos Warning
Labels, 3/20/86 ............................................................. 129 22
20 -
BWD memo, 8/11/86, Re Asbestos
23 Regulations Check List......................................... 131
24 21 - BWD Clutch Service Manual, 1988.....................134
PohlmanUSA Court Reporting (877) 421-0099
1 IN THE CIRCUIT COURT THIRD JUDICIAL CIRCUIT
2 MADISON COUNTY, ILLINOIS
3 IN RE: ALL ASBESTOS
)
LITIGATION FILED BY
)
4 SIMMONS, BROWDER,
)
GIANARIS, ANGELIDES &
)
5 BARNERD, LLC,
)
)
6
Plaintiffs,
)
7 -vs-
) )
8 BWDAC, INC.,
) )
)
9
Defendant.
)
10
Page 4
11 The videotaped evidence deposition of 12 WILLIAM KOTZUM, produced, sworn and examined on 13 behalf of the Plaintiffs on July 18, 2013, between 14 the hours of 9:39 a.m. and 2:01 p.m. on that day, at 15 1200 Burr Ridge Parkway, Burr Ridge, Illinois, taken 16 before Maria Elena Golden, CSR No. 84-3705, a 17 Certified Shorthand Reporter, Registered Professional
18 Reporter, and a Notary Public. 19 20 21 22 23 24
PohlmanUSA Court Reporting (877) 421-0099
1 A P P E A R A N C E S: 2
Page 5
3 SIMMONS, BROWDER, GIANARIS, ANGELIDES & BARNERD, LLC BY: MR. SHANE F. HAMPTON
4 One Court Street Alton, IL 62002
5 Appeared on behalf of the Plaintiffs
6
7 CRIVELLO, CARLSON, PICOU & ANDREKANIC, LLC BY: MR. JAMES J. BENTIVOGLIO
8 1012 Plummer Drive Suite 201
9 Edwardsville, IL 62025 Appeared via telephone on behalf of
10 A.O. Smith Corporation
11
12 DANNA MCKITRICK, PC BY: MR. PATRICK T. HINRICHS
13 7701 Forsyth Boulevard Suite 800
14 St. Louis, MO 63105
Appeared via telephone on behalf of 15 Kimberly-Clark Corporation
16
17 DOGAN & WILKINSON PLLC BY: MS. THI T. GILLIES
18 734 Delmas Avenue
Pascagoula, MS 39567 19 Appeared via telephone on behalf of Carver Pump
Company and Guard-Line, Inc. 20
21 GOODWIN PROCTER, LLP
22 BY: MS. VALERIE E. ROSS 901 New York Avenue, N.W.
23 Washington, DC 20001 Appeared on behalf of BWDAC, Inc. and the Witness
24
PohlmanUSA Court Reporting (877) 421-0099
1 A P P E A R A N C E S (CONTINUED): 2
Page 6
3 HERZOG CREBS, LLP BY: MR. DON W. WARD
4 100 North Broadway 14th Floor
5 St. Louis, MO 63102 Appeared via telephone In Re All Simmons
6
7
HILL FULWIDER, PC 8 BY: MR. KEITH HAYS
One Indiana Square, Suite 2400
9 211 North Pennsylvania Street Indianapolis, IN 46204
10 Appeared via telephone on behalf of Utility Trailer Manufacturing, Inc.
11
12 JOHNSON & BELL, LTD.
13 BY: MR. CHRISTOPHER J. CARLOS
33 West Monroe Street 14 Suite 2700
Chicago, IL 60603 15 Appeared via telephone on behalf of
Luse-Stevenson Co.
16
17
KNAPP OHL & GREEN 18 BY: MS. JESSICA BRASEL
6100 Center Grove Road 19 Edwardsville, IL 62025
Appeared via telephone on behalf of Apex Oil 20 Company, Inc.; Cardinal Industrial Insulation
Company, Inc.; Colony Brands, Inc.; Modine 21 Manufacturing Company; Tennant Company; and
Transco, Inc. 22
23
24
PohlmanUSA Court Reporting (877) 421-0099
1 A P P E A R A N C E S (CONTINUED): 2
Page 7
3 LITCHFIELD CAVO, LLP BY: MR. MATTHEW GARDNER
4 303 West Madison Street Suite 300
5 Chicago, IL 60606 Appeared via telephone on behalf of Clark
6 Industrial Insulation and Duro Dyne Corporation
7
8 MCKENNA STORER BY: MS. MARGARET M. FOSTER
9 33 North LaSalle Street Suite 1400
10 Chicago, IL 60602 Appeared via telephone on behalf of
11 All Defendants
12
13 O'CONNELL, TIVIN, MILLER & BURNS, LLC BY: MR. MARK TIVIN
14 135 South LaSalle Street Suite 2300
15 Chicago, IL 60603 Appeared via telephone on behalf of
16 Cleaver-Brooks; John Crane, Inc.; Miniature
Precision Components, Inc.; and Sepco 17
18 SPENCER, FANE, BRITT & BROWNE, LLP
19 BY: MR. THOMAS W. HAYDE 1 North Brentwood
20 Suite 1000 St. Louis, MO 63105
21 Appeared via telephone on behalf of MRC Holdings
22
23 24
PohlmanUSA Court Reporting (877) 421-0099
1 A P P E A R A N C E S (CONTINUED): 2
Page 8
3 SWANSON, MARTIN & BELL, LLP
BY: MS. JENNIFER S. KILPATRICK 4 330 North Wabash
Suite 3300 5 Chicago, IL 60611
Appeared on behalf of Western Auto Supply Company 6
7 THOMPSON COBURN, LLP
8 BY: MR. BRIAN DOTY 525 West Main Street
9 Belleville, IL 62220 Appeared via telephone on behalf of
10 CNH America LLC and Honda
11
12
VIDEOTAPED BY: MR. JOHN DOODY, CLVS 13
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PohlmanUSA Court Reporting (877) 421-0099
Page 9 1 IT IS HEREBY STIPULATED AND AGREED by and 2 between counsel for the Plaintiffs and counsel for 3 the Defendants that this deposition may be taken in 4 machine shorthand by Maria Elena Golden, a Certified 5 Shorthand Reporter, a Registered Professional 6 Reporter, and a Notary Public, and afterwards 7 transcribed into print, and the signature of the 8 witness is reserved by agreement of counsel and the 9 witness. 10 o-O-o 11 THE VIDEOGRAPHER: We're on the record. 12 This is the videotaped evidence deposition of William 13 Kotzum. Today's date is July 18th, 2013, and the 14 time is 9:39 a.m. 15 This is the matter In Re: All Asbestos 16 Litigation Filed by Simmons, Browder, Gianaris, 17 Angelides & Barnerd versus BWDAC, Inc., pending in 18 the Circuit Court, Third Judicial Circuit, Madison 19 County, Illinois. 20 This deposition is being held at the 21 Marriott Burr Ridge located at 1200 Burr Ridge 22 Parkway in Burr Ridge, Illinois. 23 My name is John Doody, certified legal 24 video specialist, in association with PohlmanUSA
PohlmanUSA Court Reporting (877) 421-0099
1 Court Reporting, located at 10 South Broadway,
Page 10
2 Suite 1400, in St. Louis, Missouri.
3 The court reporter today is Maria Golden,
4 also with PohlmanUSA Court Reporting.
5 All appearances will be reflected on the
6 stenographic record.
7 Will the court reporter please swear in the
8 witness.
9 (WHEREUPON, the witness was duly sworn.) 10 MS. ROSS: Before we get started, I just
11 want to state on the record that Mr. Hampton and I
12 have conferred -- and this is Valerie Ross, 13 representing BWDAC and Mr. Kotzum. 14 The notice of deposition included a number 15 of topics that relate to some personal jurisdiction
16 issues that BWDAC has raised in some of the cases 17 that have been filed in Madison County, and 18 Mr. Hampton and I conferred yesterday and agreed that
19 this deposition would not cover those matters, that 20 we would deal with discovery, and including the 21 potential deposition on personal jurisdiction down
22 the line, and this would instead focus on other 23 issues relating to BWDAC. 24 MR. HAMPTON: That's correct.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 11 1 WILLIAM KOTZUM, 2 of lawful age, being produced, sworn and examined on 3 behalf of the Plaintiffs, and after responding "Yes" 4 to the oath administered by the court reporter, 5 deposes and says: 6 EXAMINATION 7 BY MR. HAMPTON: 8 Q. Mr. Kotzum, we met briefly a while ago. 9 Nice to see you. 10 Would you please state your name for the 11 record? 12 A. William Kotzum. 13 Q. And I understand you've had your deposition 14 taken before on behalf of BWDAC? 15 A. Yes. 16 Q. How many times have you had that done? 17 A. This is the third time. 18 Q. Okay. The first one was in approximately 19 2000? 20 A. Yes. 21 Q. And then I believe another one in 2012? 22 A. January of 2012. 23 Q. And then this would be the third time? 24 A. Yes.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 12 1 Q. And Valerie Ross is your attorney on behalf 2 of BWDAC; is that your understanding? 3 A. Yes. 4 Q. And your attorney's here, and she may 5 object at times when I ask certain questions. She 6 may also, if I get too far out of bounds, she may 7 instruct you not to answer. 8 But when I ask a question, please give it 9 enough time for her to interject if she has got an 10 objection or other instruction. If I ask something 11 that she doesn't feel like is part of -- should be 12 part of this deposition, she'll let you know and 13 hopefully let me know as well. 14 And as you know from your previous 15 depositions, we'll do our best to ask -- I'll ask the 16 questions, you do your best to answer after my 17 question, which would be better for the court 18 reporter and the overall record so we're not talking 19 over each other. It can get quite difficult. 20 Do you -- what's your current address, 21 individual address? 22 A. 8200 Pine Bluff Court in Darien, Illinois. 23 Q. Okay. Where approximately is Darien, 24 Illinois? Is that here, near Chicago?
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 13 1 A. Yes. It's about two or three miles away. 2 Q. Okay. How long have you lived in the 3 Chicago area? 4 A. Since 1975. 5 Q. And where did you live before that? 6 A. I was always in Chicago until 1974, and I 7 lived two years in South Carolina after I got 8 married. 9 Q. Then returned? 10 A. Then returned, yes. 11 Q. And for a period of time you were the 12 comptroller of BWDAC, located here in the Chicago 13 area? 14 A. Yes. 15 Q. Okay. What years were those? 16 A. Well, I started in 1978 with Borg-Warner 17 Corporation, and then when they sold the business to 18 Echlin, I became a comptroller -- well, we 19 transferred in 1981. 20 Q. And did your physical address change from 21 '78 to '81? 22 A. No. I was always in that location. 23 Q. Okay. 24 A. Franklin Park.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 14 1 Q. And did you remain in Franklin Park from 2 '81 and on ? 3 A. Yes. 4 Q. Okay. And is that -- my understanding is 5 that 's more of a headquarters office building? 6 A. Yes. 7 Q. Okay. And BWDAC, and prior to that, 8 Borg -Warner, had a different facility in Ottawa, 9 Illinois; is that correct? 10 A. Yes. 11 Q. And that was a manufacturing facility? 12 A. Yes, it was. 13 Q. Your primary workplace was the Franklin 14 Park location? 15 A. Yes. 16 Q. Okay. And how long were you employed by -17 from 1981 until what period of time did you end your 18 employment with BWDAC? 19 A. 2003. 20 Q. Okay. What happened in 2003? 21 A. The business was sold to Standard Motor 22 Products. 23 Q. Did you continue to be an employee of 24 Standard Motor Products?
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 A. Yes. 2 Q. Okay. And how long did you work for 3 Standard Motor Products?
Page 15
4 A. Until 2004. 5 Q. And in 2004, what did you do?
6 A. I retired. 7 Q. And how long did -- well, let me back up to
8 the sale to Standard Motor Products. 9 Did the business continue on, the
10 day-to-day business continue on, as it did in 2003, 11 then it was purchased by Standard Motor Products?
12 Did it continue to do the same type of work
13 in 2004, when you were at Standard Motor Products? 14 A. Yes, but we were in a shutdown and transfer
15 mode. 16 Q. And can you tell me a little more detail, 17 what that means? 18 A. Basically, they are located in Long Island
19 City, New York, and they wanted to move all the
20 administrative functions to New York. 21 Q. Okay. And what about the manufacturing 22 functions that were going on in Ottawa, Illinois? 23 A. Ottawa, Illinois was actually shut down 24 completely in 1998, so that really wasn't part of
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 16 1 that transaction -- or transaction with Standard 2 Motor Products. 3 Q. Okay. From 1998 to 2003 -- again, I'm 4 backing up. 5 From '98 to 2003 with BWDAC, what was your 6 job, having -- now that I realize that the Ottawa 7 plant had shut down, or during that time period? 8 A. I was comptroller and facility manager at 9 Franklin Park. 10 Q. And did that involve other operations 11 around the country? 12 Since Ottawa had been shut down, did it 13 involve business of -- I guess at that time it would 14 be BWDAC owned by or a subsidiary of Echlin during 15 that time period? 16 A. Yes. 17 Q. Okay. And did you do other duties 18 unrelated, obviously, to the Ottawa, Illinois 19 facility around the country? 20 A. Let me go back. I guess Echlin had sold 21 the business to Dana in 1998, so technically it was 22 part of Dana from '98 to 2003. 23 Q. Did that have anything -- did the sale in 24 '98 have anything to do with the Ottawa, Illinois
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 plant being shut down? 2 MS. ROSS: I'm going to object on
Page 17
3 foundation grounds.
4 You can answer if you know.
5 BY MR. HAMPTON: 6 Q. Well, back up again. We were talking about 7 the Ottawa plant closing, I guess the --
8 A. Right. 9 Q. -- the manufacturing -- manufacturing of
10 clutches?
11 A. Yes. 12 Q. It closed in '98?
13 A. Yes. 14 Q. My question is, did that happen at the time
15 of the sale from Echlin to Dana?
16 A. No. 17 Q. Okay. What point did that happen on this
18 timeline?
19 A. Well -20 Q. The shutdown of Ottawa manufacturing 21 facility.
22 A. Well, that happened -- was shut down in
23 1998. 24 Q. Okay.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 18 1 A. And as far as remanufacturing, and then the 2 business was transferred to -- I'm trying to think 3 now. 4 We became -- the business became like a 5 repackager, to where they would just buy completed 6 units and package them for sale. 7 Q. They were -- the facility was buying new 8 clutches, repackaging and selling new clutches as in 9 you weren' t doing the remanufacturing process that I 10 have seen in some of the other documents? 11 A. Right, right, right. 12 Q. Okay. 13 A. And I can't remember what location that was 14 done at. 15 Q. Was that going on in Ottawa -16 A. No. 17 Q. -- during this time period? 18 A. No. Ottawa was completely shut down in 19 1998. 20 Q. And coincidentally -- I'm trying to 21 understand the -- the corporate history here. 22 Coincidentally, in that same time period is 23 when Dana purchased BWDAC from Echlin? 24 A. Yes.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 Q. We're talking 1998?
Page 19
2 A. Yes.
3 Q. Dana then owned BWDAC until approximately
4 2003, 2004?
5 A. 2003, yes.
6 Q. Okay.
7 MS. ROSS: Actually --
8 MR. HAMPTON: Feel free. If we're off on
9 the timeline --
10 MS. ROSS: Yeah. I mean, I just think, you
11 know, you may be off on the time. You should ask him
12 who currently owns BWDAC. That might be a good
13 question that will help.
14 MR. HAMPTON: Work backwards?
15 MS. ROSS: Work backwards from that.
16 BY MR. HAMPTON:
17 Q. Who currently owns BWDAC?
18 A. Dana Companies.
19 Q. Okay. Now let's work backwards.
20 A. Okay.
21 Q. At what point did Dana Companies purchase
22 BWDAC?
23 A. 1998.
24 MR. HAMPTON: Let's go off the record for a
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 minute, and we can -- we can probably -2 MS. ROSS: Okay.
Page 20
3 MR. HAMPTON: -- make short work of this.
4 THE VIDEOGRAPHER: We're off the record. 5 The time is 9:50 a.m. 6 (WHEREUPON, discussion was had off the
7 record.) 8 THE VIDEOGRAPHER: We're back on the
9 record. The time is 9:56 a.m. 10 BY MR. HAMPTON: 11 Q. And today we went through some corporate 12 history stuff and still basically talked it out, and 13 we're going to try to work it out even a little bit 14 more off the record. It's not entirely simple. 15 Who's paying the bills today? Who -- who
16 are you -- are you working for today, and who's going 17 to pay for your time here?
18 A. Dana Companies. 19 Q. You think -- you don't know for sure,
20 but -21 A. 22 Q.
I --- you think Dana Companies?
23 A. I believe so, yes. 24 Q. Okay. And as the corporate representative
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 21 1 for BWDAC, are you being compensated for your time? 2 A. Yes. 3 Q. And how is that compensation -- how does 4 that happen? Is it an hourly? Is it a yearly? 5 A. It's an hourly. 6 Q. Okay. And what -- how much do you charge 7 hourly, or how much do they pay you for -- hourly for 8 your time? 9 A. Oh, $100. 10 Q. And in the last 12 months, how much 11 compensation have you received at $100 an hour? How 12 much total compensation? 13 A. Maybe 6- or $700 in the last 12 months. 14 Q. Okay. Okay. Now, I'd like to refer to the 15 answers to interrogatories that were filed in this 16 case on behalf of BWDAC, with their objections and 17 responses. 18 I'm looking for the stamp date. I know it 19 was approximately February of 2013. And we're going 20 to be using this a fair amount today, so we can go 21 ahead and mark that as Exhibit 1. 22 I do have a complete copy here. The only 23 markings on it I believe are highlights, yellow 24 highlights . So one of us, by the end of the
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 22 1 deposition may have a clean copy that we can attach, 2 but let's go ahead and mark that as Plaintiffs' 3 Exhibit 1. 4 (WHEREUPON, a certain document was marked 5 Plaintiffs' Deposition Exhibit No. 1 for 6 identification as of 07/18/2013.) 7 MR. HAMPTON: While we're doing that, we 8 may as well also notice a copy of the notice of 9 deposition which was -- we referred to in the 10 preliminary discussion, and we can mark that one as 11 Exhibit 2. 12 (WHEREUPON, a certain document was marked 13 Plaintiffs' Deposition Exhibit No. 2 for 14 identification as of 07/18/2013.) 15 BY MR. HAMPTON: 16 Q. All right, Mr. Kotzum. We marked the 17 answers to interrogatories, and I'm going to let you 18 look through these so we -- so you know what the 19 document is. 20 I've tabbed the verification page. Tell 21 me -- after you look at that, tell me if that 's your 22 signature and if you verified those answers to 23 interrogatories. 24 A. Yes.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 23 1 Q. Thank you. We'll start -- there's a 2 preliminary statement and some objections. We're 3 going to go on to No. 1. 4 In No. 1, the question is, "Identify the 5 person answering these interrogatories on behalf of 6 Defendant," and about three lines down in the reply 7 is, "numerous persons have participated in the 8 preparation of these responses. No one person has 9 provided information for all responses." 10 My question, sir, is did any other former 11 employees, in addition to yourself, participate in 12 the answering of these interrogatory responses? 13 A. I'm not sure. 14 Q. Fair to say you have no firsthand knowledge 15 of any other former employees of BWDAC helping answer 16 these responses? 17 A. Yes. 18 Q. Okay. Do you know what other persons or 19 attorneys may have been involved in answering these 20 interrogatory responses? 21 A. I think I do. 22 Q. Okay. And who would those be? 23 A. Janis Foley and people on her staff at 24 Cooper & Walinski. I'm not sure if Valerie Ross was
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 involved.
Page 24
2 Q. And these answers to interrogatories, how
3 did you come to be involved in verifying these
4 answers to interrogatories?
5 I'm just asking how did it happen. Did
6 they call you up and say, "Hey, we've got some
7 interrogatory requests, and we'd like you to take a
8 look at them"?
9 A. Yes.
10 Q. And when these answers to interrogatories
11 were prepared, were they prepared in large part by
12 the attorneys and then sent to you?
13 A. Yes. 14 Q. And tell me what your role is at that point 15 in verifying and making sure these answers are what 16 they should be. 17 A. I readthrough the questions and I read 18 through the answer, and to my -- best of my ability, 19 I verify that the answer is correct. 20 Q. And in -- in this -- this set that we've 21 marked here as Exhibit 1, approximately how much time
22 did you spend working on these answers to
23 interrogatories? 24 A. Reviewing theanswers?
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 Q. Yes. 2 A. Two or three hours.
Page 25
3 Q. Did you make any changes based on your
4 review of what they prepared on this set, Exhibit 1?
5 A. I can't remember. 6 Q. You can't remember if you made any, or you 7 don't know if you made any?
8 A. I can't remember if I made any. Sometimes
9 there might be a date change or, you know, a simple
10 sentence change.
11 Q. Okay. And on this set, your recollection 12 is you don't know if you did or did not make any
13 changes?
14 A. Right. 15 Q. Is there a custodian of records for BWDAC?
16 A. Yes.
17 Q. And who is that?
18 A. It's the Cooper & Walinski firm, and they
19 have a repository in their law office. 20 Q. And I think -- I thought I was reading in a
21 different deposition, maybe your second deposition, 22 where there was a question asked about custodian of
23 records, and you were -- I think there may have been
24 an implication that you were the custodian of
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 records. 2 Do you know -- do you recall that
Page 26
3 conversation?
4 A. No. 5 Q. Okay. And we talked a little bit about the
6 corporate history before we -- before I got all 7 confused and couldn't figure it out. So in regard to 8 that, going back to that topic, I wanted to talk a 9 little bit about the Agreement for Sale of Assets
10 from -- I think it was originally dated February 28th 11 of 1981. And we'll mark that as Exhibit 3, then I'll 12 have you take a look at it and see if you're familiar
13 with it. 14 (WHEREUPON, a certain document was marked
15 Plaintiffs' Deposition Exhibit No. 3 for
16 identification as of 07/18/2013.) 17 BY MR. HAMPTON: 18 Q. Here you go, sir. 19 MS. ROSS: Can you read it?
20 THE WITNESS: I got my glasses. 21 MS. ROSS: You need to bring a magnifier 22 when you do this. It's four to a page. 23 MR. HAMPTON: I did put four to a page for 24 travel reasons. I apologize.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 BY THE WITNESS: 2 A. Yes, I've seen that. 3 BY MR. HAMPTON:
Page 27
4 Q. Now, referring back to our Exhibit 1 and 5 the preliminary statement, Paragraph 3, this
6 statement reads, "BWDAC, Inc. acquired some assets of 7 Borg-Warner Corporation's 'Automotive Aftermarket 8 Operations' division utilized inthe remanufacturing 9 of clutch products." 10 Sir, whenever I read the Agreement for Sale 11 of Assets, it looked like the -- the asset purchase 12 reads basically all assets, anything to do with the
13 aftermarket operations, and so I'm curious if I'm
14 missing something or if "some" -- "some" should be 15 changed to "all assets." 16 I don't know if there's anything left with 17 the original Borg-Warner, was my question. And I'll 18 refer you to 1.1 of Exhibit 3, and read through that 19 paragraph. I'd like your opinion on that matter.
20 MS. ROSS: Before he answers the question, 21 I'm going to object since you're misstating the
22 document maybe a little bit because that agreement is
23 with Echlin, and your question is about what BWDAC 24 acquired. But he can answer your question.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 BY THE WITNESS:
Page 28
2 A. It's pretty long.
3 MR. HAMPTON: Let's go off the record.
4 THE VIDEOGRAPHER: We're off the record.
5 The time is 10:08 a.m. 6 (WHEREUPON, discussion was had off the
7 record.)
8 THE VIDEOGRAPHER: We're back on the
9 record. The time is 10:11 a.m. 10 MR. HAMPTON: Madam Court Reporter, can you 11 please read the question back?
12 No, I'll start over. I'll start over. Let
13 me rephrase. There was an objection, too, so we'll
14 just start over.
15 BY MR. HAMPTON:
16 Q. Mr. Kotzum, we're going to re-ask the
17 question. Hopefully, I can make it a little bit
18 better this time.
19 The answers to interrogatories on behalf of
20 BWDAC said in Paragraph 3 of the preliminary
21 statement that BWDAC, Inc. acquired some assets of 22 Borg-Warner Corp.'s automotive aftermarket operations
23 division utilizing the remanufacture of clutch
24 products.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 29 1 My question is, after reviewing the 2 Agreement for Sale of Assets, do you believe that 3 some of those weretransferred, or do you believe all 4 of those were transferred, or some other 5 interpretation? 6 A. I believe "all" is an encompassing term, 7 and the intent was to buy the aftermarket operations, 8 but I'm sure there were a few of the assets that 9 weren't transferred. It might be something as simple 10 as maybe the -- some furniture items weren't 11 transferred, or some file cabinets. 12 Q. But in general, the -- all of the principle 13 matters were -- were transferred? 14 MS. ROSS: And transferred to -- well, I'll 15 object as vague as to -- to whom they were 16 transferred. 17 MR. HAMPTON: Well, I was just referring 18 from BWDAC, Inc., from the preliminary statement. 19 MS. ROSS: No, I understand, but the 20 agreement is not with BWDAC. 21 BY MR. HAMPTON: 22 Q. That's correct. The agreement -- for 23 clarification, the sale of assets was to Echlin? 24 A. Yes.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 30 1 Q. So let's ask it -- you know, let's ask 2 another question. 3 Do you believe that all of the assets were 4 transferred from Borg-Warner to Echlin on this -- in 5 this particular document marked as Exhibit 3? 6 A. Tough question. All of the assets, 7 according to the agreement, were transferred. 8 Q. Fair enough. 9 Now, there's another general assignment and 10 bill of sale that I've got here. We'll mark this 11 document as Exhibit 4. I'll let you take a look at 12 that. 13 A. Okay. 14 Q. Are you familiar with that document? 15 A. I've seen it. 16 Q. Okay. What's that document say? 17 A. That basically it was assigning all of the 18 assets to the automotive parts division. 19 Q. Okay. I'm going to -- let's mark it. 20 (WHEREUPON, a certain document was marked 21 Plaintiffs' Deposition Exhibit No. 4 for 22 identification as of 07/18/2013.) 23 BY MR. HAMPTON: 24 Q. I'm going to highlight a section.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 31 1 Okay, can you please read the highlighted 2 portion of that document? 3 A. "APD, Inc., does hereby sell, transfer, 4 convey, and assign and deliver to APD, Inc., an 5 Illinois corporation, all the assets and business as 6 a going concern of the Automotive Parts Division, the 7 Automotive Parts Division International, Ottawa 8 Division of Borg-Warner Corporation ('Borg-Warner1) 9 acquired by Echlin pursuant to the Agreement for Sale 10 of Assets." 11 Q. Okay. And what date is that document? 12 A. That is dated July 14th, 1981. 13 Q. Okay. Now, going back to -- and again, I 14 apologize. This is going to be a little bit tedious, 15 but I'm still trying to figure out some of these 16 corporate questions. 17 In the preliminary statement of Exhibit 1, 18 the answers to interrogatories, I'm just going to 19 have you read this paragraph. It's Paragraph 2. 20 A. "BWDAC, Inc. was originally incorporated in 21 the State of Delaware on May 27, 1981 under the name 22 APD, Inc. The corporate name was changed to BWD 23 Automotive Corporation on December 11, 1981 and later 24 to BWAC (sic), Inc. on June 7th, 2004."
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 32 1 Q. All right. My question is, that compared 2 to Exhibit 4, I can't tell what's going on, can you? 3 MS. ROSS: I'll object to the form. 4 BY MR. HAMPTON: 5 Q. Everything seems somewhat inconsistent. 6 We've got originally incorporated in the State of 7 Delaware on the 27th under the name APD, Inc., yet on 8 Exhibit 4 it says APD -- APD, Inc., an Illinois 9 corporation. 10 Can you help me clarify which corporation 11 is which? 12 A. No, I can't. 13 Q. Is that something we'll need to get a 14 little -- do a little more research on and figure 15 out? 16 A. I guess, yes. 17 Q. All right. Thank you. 18 Okay. Let's go to 1981. At the time, the 19 Ottawa facility and BWDAC were -- and again, it 20 wasn't -- it didn't go automatically from Borg-Warner 21 to BWDAC. As we just read, there were some -22 there's another -- it went to Echlin, then it went to 23 APD, then it ended up with BWD for many years, and 24 then it became BWDAC. Okay?
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 A. Yeah.
Page 33
2 Q. So we're going to talk about all of those,
3 and I might call them BWD or BWDAC. But for the 4 purposes of this deposition, is it agreeable to you 5 and to your counsel that we're basically treating it 6 as the same entity, even though it may be a series of 7 different corporations?
8 MS. ROSS: That's fine.
9 BY MR. HAMPTON: 10 Q. Is that agreeable?
11 A. Yes. 12 MS. ROSS: That is agreeable. 13 BY MR. HAMPTON: 14 Q. It's too confusing for the purposes of what 15 we' re trying to do today -16 A. Okay. 17 Q. -- because I still can't figure it out, so 18 we' ll try to keep it simple. 19 Also, when I refer to "you," unless I ask
20 specifically you, your personal knowledge, I'll 21 assume that "you" means you as in a representative
22 for BWDAC. 23 A. Okay. 24 Q. Is that fair?
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Examination by Mr. Hampton
1 A. Okay.
Page 34
2 Q. And so going back to 1981, at the time of
3 the transfer from Borg-Warner to the other entity,
4 whether it be Echlin or BWD or BWDAC, tell me about
5 the plant just prior to the transfer as far as how
6 many employees did they have at the time, did
7 Borg-Warner have, the day it was transferred, if you 8 can approximate.
9 A. I'll approximate about 400. 10 Q. And how long had Borg-Warner been 11 operating -- you'd been there since 1978, so you'd 12 been there for approximately three years. Had it 13 been run - - or had it been approximately the same 14 number of employees for at least the three -- three 15 previous years when you were there?
16 A. That I can't remember. 17 Q. At the time of the transfer to new 18 ownership, did anything change with the number of 19 employees? 20 A. Not that I'm aware of. 21 Q. Okay. As far as the individuals working at 22 the Ottawa facility -- and I'm not talking about
23 directors. I'm not talking about plant manager. 24 Did the majority of the employees, were
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 35 1 they offered the ability to stay on and work under 2 the new ownership? 3 A. I believe so, yes. 4 Q. There wasn't a big cleaning of the house 5 and getting rid of a bunch of workers? 6 A. Not that I'm aware of. 7 Q. Now, did your role change at all during 8 that transition to new ownership? 9 A. Immediately, no. 10 Q. Okay. And what were you at Borg-Warner? I 11 think I saw somewhere vice comptroller or assistant? 12 A. I was assistant comptroller. 13 Q. Assistant comptroller. 14 And in previous testimony, that was -- you 15 were involved in financial work? 16 A. Yes. 17 Q. Now, was -- you were in the headquarters, 18 not at Ottawa. You were still at Franklin Park? 19 A. Yes. 20 Q. Do you recall who the plant manager was for 21 Borg-Warner at the time of the transfer at Ottawa? 22 A. At Ottawa? 23 Q. Yeah. 24 A. John Casey.
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Examination by Mr. Hampton
Page 36 1 Q. Can you spell his last name, please? 2 A. C-A-S-E-Y. 3 Q. Did he continue to be plant manager after 4 the transition? 5 A. Yes. 6 Q. Approximately how long? 7 A. Eight to ten years. 8 Q. So from '81 to approximately the -- the 9 late '80s? 10 A. Yes. 11 Q. I believe I saw somewhere another gentleman 12 named Moreland. 13 A. Bill Moreland. 14 Q. Did he succeed directly after Casey? 15 A. Yes. 16 Q. And how long was he plant manager? 17 A. Until we closed it in 1998. 18 Q. Well, a fair description of the transition 19 from Borg- Warner to the new ownership, would it be 20 fair to say that it was business as usual? 21 A. Yes. 22 Q. We're going to go back to Exhibit 1, the 23 answers to interrogatories, to No. 8. This is a list 24 of the directors and officers, and then on 9 -- well,
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 let's just start with 8.
Page 37
2 Take a look at 8, and that's the list of
3 directors and officers. Were those provided by you?
4 Were those provided by the attorneys?
5 A. Probably a combination of both. 6 Q. Okay. Do you recall anyone specifically 7 that you listed there, or were those found in 8 documents?
9 Were there any found in documents, or do
10 you know which ones you identified?
11 A. I believe most of them were found in 12 documents, and I was asked to just verify the names
13 the best I could. 14 Q. Okay. Did you personally know any of those
15 individuals?
16 A. Yes.
17 Q. Okay. All of them, or like one? I just --
18 generally, a breakdown.
19 Did you work with most of those guys, or a
20 lot of those guys?
21 A. Yes. 22 Q. Okay. Let me take that back. I might have
23 some questions. 24 The first one on the list is P. Anderson,
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Examination by Mr. Hampton
Page 38 1 and he's listed as vice president from '89 to '93. 2 Do you know who that is? 3 A. Yes. 4 Q. What's his first name? 5 A. Pete. Pete. It's really William Pete 6 Anderson. 7 Q. And as I -- I started to go on to No. 9 8 also. I' m going to kind of take these two questions 9 together. 10 No. 9 basically asks if they served as 11 director of other companies, and then you provided 12 responses to a lot of these individuals and what 13 other positions they held. 14 A. That -15 Q. So I'm going to show you that list as well 16 so you're familiar with 9, since these questions -17 A. Okay. 18 Q. -- may be asked together. 19 A. You want me to keep turning -20 Q. Just -- yeah, I want you -21 A. -- pages here? 22 Q. Don't worry, other than just find 9, and 23 then the question, you know, asked about other 24 positions those individuals may have held, and then
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 39 1 you can see the reply there. I'd like you to just 2 kind of glance at that. 3 A. Okay. 4 Q. Okay. And I didn't see Pete on that second 5 group, so I was just wondering if there's a reason 6 why he wasn't on there. 7 A. Can I clarify that the second group of 8 names -9 Q. Okay. 10 A. -- I was really not involved with because 11 that came from corporate minutes or records, and I 12 believe those are the official officers of each one 13 of the -- the companies, where on the first list Pete 14 Anderson was a vice president of sales -15 Q. Okay. 16 A. -- but I don't think he was an official 17 officer of the corporation. 18 Q. Thank you very much. That helps. 19 The -- when you say it came from corporate, 20 all of those other positions, you're talking about 21 corporate, you're talking about Echlin? 22 A. Echlin, yes. It would have been from the 23 Echlin time. 24 Q. And those other titles and years, are those
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 other divisions or subsidiaries of Echlin?
Page 40
A. A lot of them are, yes.
Q. Okay. Let's go back to Interrogatory 8
then. Hold on. MR. HAMPTON: We've got somebody on the
phone with some background noise. Can you please check your mute and turn the mute on, if you can hear
us? Thank you. BY MR. HAMPTON: 10 Q. Going back to Interrogatory 8 and Pete 11 Anderson, vice president from '89 to '93, how long 12 was he employed at the Ottawa facility? 13 A. He was not employed at the Ottawa facility. 14 Q. Okay. He was a -- where did he work? 15 A. He really worked out of the Franklin Park 16 office, but lived in South Carolina. 17 Q. Okay. How long did he work for Borg-Warner 18 or the new owner, if you know? 19 A. Approximately 25 years. 20 Q. Was he employed there before 1978, when you 21 started? 22 A. Yes. 23 Q. Do you know where he was employed before 24 Borg-Warner?
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Examination by Mr. Hampton
1 A. No.
Page 41
2 Q. What about William Bowman, was he there at
3 Borg-Warner when you started in 1978?
4 A. William Bowman was the corporate assistant 5 treasurer, so he was actually located in the Echlin
6 facility in Branford, Connecticut.
7 Q. Okay. Daniel Carboni, it says director and
8 chairman, '87 to '90.
9 A. He -10 Q. Are you familiar with him? 11 A. He was a group vice president, and again, 12 located in Branford, Connecticut.
13 Q. Okay. John Casey, vice president, '81 to
14 '82?
15 A. He was the plant manager whose name I gave
16 you before . 17 Q. Do you know, was he there in 1978, when you
18 started?
19 A. Yes. 20 Q. Do you know where he -- where or if he 21 worked anywhere before Borg-Warner?
22 A. I'm not sure.
23 Q. How about John Collins, president from '83
24 to '88? Same question.
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Examination by Mr. Hampton
Page 42 1 A. He was located in Franklin Park. 2 Q. Okay. Do you know if he -- he -- where or 3 if he worked anywhere before Borg-Warner? 4 A. I know, yeah. Before, he came from Walker. 5 Q. Okay. How about John Coughlin, vice 6 president of operations? 7 A. I don't -8 Q. C-O-U-G-H-L-I-N? 9 A. Right. Yes, he -- he -- Franklin Park 10 also, and I'm not sure -11 Q. If he worked anywhere before -12 A. Right. 13 Q. -- Borg-Warner? 14 That Richard Daley, nothing to do with the 15 mayor of Chicago, or son, is it? 16 A. Well, when I take a look at that, actually 17 there was no Richard Daley. It should be Robert 18 Daley. I saw that -19 Q. I'm going to make a correction -20 A. -- as I was reading it. 21 Q. -- on my copy. Okay. 22 A. And no relation, no. 23 Q. Okay. Same question. Did you know where 24 he worked before Borg-Warner?
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Examination by Mr. Hampton
1 A. Walker Automotive also.
Page 43
2 Q. Now, there was a Richard Daley and a Robert
3 Daley on here.
4 A. Same person.
5 Q. Okay. Brian Gallinger, do you know where
6 he worked before Borg-Warner? 7 A. No, and he also was located in Branford,
8 Connecticut.
9 Q. Same question for Henrick Glastra.
10 A. Henrick, I don't know.
11 Q. Al Gomez?
12 A. Al Gomez had something to do with the
13 international division, but I don't know anything
14 else about him.
15 Q. C. Scott Greer?
16 A. He was located in Branford, Connecticut
17 also.
18 Q. Jeffrey Hagberg?
19 A. He was located in Franklin Park.
20 Q. And you're next. And -- and before we go
21 on, Jeffrey Hagberg, do you know where he worked
22 before Borg-Warner or Echlin?
23 A. No, I don't.
24 Q. Jon Leckerling, same question.
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Examination by Mr. Hampton
Page 44 1 A. He was located in Branford, Connecticut. 2 He was a corporate attorney. 3 Q. Okay. Frederick Mancheski? 4 A. He was located in Branford, Connecticut, 5 and he was the CEO and chairman of Echlin. 6 Q. Ralph Manning? 7 A. Ralph was located in Branford, Connecticut. 8 I'm not sure what responsibility. 9 Q. Lyle Martin? 10 A. Was located in Franklin Park. I don't know 11 what he did prior. 12 Q. Larry McCurdy? 13 A. Was located in Branford, Connecticut. I'm 14 not sure what he did. 15 Q. Lou Merz? 16 A. Was located in Franklin Park, and he -17 Q. Do you know what he did before Borg-Warner? 18 A. I know he did -- he came up through the 19 Borg-Warner organization. 20 Q. Now, when we look at this, it says here 21 president and vice president. Is that Echlin, is 22 that BWDAC, or is that Borg-Warner? 23 A. What name? 24 Q. Lou Merz. If you take a look at what's
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 after his name, you can tell me about it.
Page 45
2 MS. ROSS: Object. The question that
3 you're asking asks for officers and directors of
4 Defendant, which is BWDAC.
5 MR. HAMPTON: Right. I'm just clarifying
6 to make sure that's what it is.
7 BY THE WITNESS:
8 A. He was president of APD, and briefly
9 president of BWDAC, but was a vice president of
10 the -- of Borg-Warner Corporation.
11 BY MR. HAMPTON: 12 Q. Was that all at the same time?
13 A. Yes. 14 Q. So he wasn't exclusively a director or
15 officer of the new entity, APD or BWD, he did that 16 and he was also Borg-Warner vice president? 17 A. Right. 18 MS. ROSS: At the same time? 19 THE WITNESS: Yes, because you can be a 20 corporate officer but also have an operational title 21 at one of their divisions. 22 MS. ROSS: For Borg-Warner? 23 THE WITNESS: That was under Borg-Warner, 24 so that was prior to 1981.
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Examination by Mr. Hampton
1 BY MR. HAMPTON:
Page 46
2 Q. Eric Myers? 3 A. Located in Franklin Park. I'm not sure
4 what he did before.
5 Q. Keith Nicholls?
6 A. I'm not familiar with that name.
7 Q. Charles O'Connor? 8 A. Located in Branford, Connecticut, was one
9 of the corporate attorneys.
10 Q. Edward O'Toole?
11 A. Same, located in Branford. 12 Q. Joseph Onorato? 13 A. Located in Branford, was assistant 14 treasurer and treasurer. 15 Q. Richard Patterson? 16 A. Located in Branford, was corporate 17 comptroller, a financial person. 18 Q. Donald Pattison?
19 A. I'm not familiar with that name. 20 Q. Lawrence Pavey? 21 A. Was located in Franklin Park. 22 Q. And what did he do prior to Borg-Warner?
23 A. He was -- he came from Walker also. 24 Q. Was there some kind of a purchase or a
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Examination by Mr. Hampton
1 merger with Walker Auto in any of either Borg --
Page 47
2 A. No. 3 Q. -- or the purchase -4 A. When John Collins became president, he
5 brought some people in from his previous position. 6 Q. Ronald Phillips? 7 A. Located in Franklin Park. I'm not sure 8 what he did before. 9 Q. Frank Pilling, P-I-L-L-I-N-G? It says
10 director.
11 A. Yes. He was a Borg-Warner group vice 12 president, was located actually in Michigan. 13 Q. Okay. This says also director from '82 to
14 '83. Does that mean he was also a BWD director from
15 '82 to '83?
16 A. Yes. 17 Q. Charles (sic) Russ, vice president of
18 finance? 19 A. Branford, Connecticut, a corporate exec . 20 Q. Joseph Scott, director, '81 to '82?
21 A. Branford, Connecticut. Again, a corporate 22 exec. 23 Q. Edward Shalagan, assistant treasurer, ' 88 24 to '93?
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Examination by Mr. Hampton
Page 48 1 A. Branford, Connecticut, a corporate guy. 2 Q. David Spiller, director, VP and secretary? 3 A. Yeah. Branford, Connecticut also. 4 Q. John Sprieser, S-P-R-I-E-S-E-R? 5 A. Franklin Park, was a group comptroller. 6 Q. And what did he do before Borg-Warner? 7 A. I'm not sure. 8 Q. Bruce Tartaglione, VP of marketing? 9 A. Franklin Park. 10 Q. Do you know what he did before 11 employment -12 A. He worked -13 Q. -- with Borg-Warner? 14 A. -- for Standard Motor Products. 15 Q. And then he came over? 16 A. Yes. 17 Q. Do you know approximately when that was? 18 His VP of marketing on this is listed as '88 to '93. 19 A. Right. He came over as a regional sales 20 manager out of Cleveland, but I can't remember what 21 year. 22 Q. Timothy Vehleweld, VP of sales? 23 A. Vehleweld, yes. He was located in Franklin 24 Park also.
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Examination by Mr. Hampton
1 Q. Okay.
Page 49
2 A. I'm not sure what he did prior.
3 Q. And Richard Wisot, W-I-S-O-T?
4 A. Branford, Connecticut. He was, again,
5 corporate treasurer.
6 Q. Okay. Thank you. Sorry, I know that was
7 tedious.
8 I read another -- your depo from last year
9 about Bruce Tartaglione, and we were talking about - 10 you were talking about the switchover at the time
11 from asbestos clutches to nonasbestos clutches and
12 thought he might have information beyond what your
13 knowledge might be. 14 I was wondering, to your knowledge, have
15 you had a conversation with him about that since that
16 deposition or know if he's been contacted? 17 A. I have not had a conversation with him, and
18 I don't know if he's been contacted. 19 Q. The same question for Bill Moreland on the
20 same topic, because there was a discussion about him
21 being plant manager. 22 A. Right. 23 Q. Have you talked to him since the last
24 deposition?
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Examination by Mr. Hampton
1 A. No, I haven't.
Page 50
2 Q. Do you know if anybody with BWDAC has 3 contacted him?
4 A. Not that I'm aware of.
5 Q. Are you aware of anybody that you discussed
6 in the last depo -- there was various names in
7 addition to those two -- that you've talked to since
8 that deposition?
9 A. No. 10 Q. Are there any of those individuals that 11 you -- where you know BWDAC or their attorneys have
12 tried to contact them? 13 A. No. 14 Q. You don't know or --
15 A. I -- I -- I don't know if they've been 16 contacted . I have talked to Bruce, but he buys Cubs 17 tickets from me. 18 Q. Last Sunday's, when they played the 19 Cardinals , you didn't give those away, I hope.
20 A. I had Friday's game. 21 Q. Okay. 22 MS. ROSS: Who won? 23 THE WITNESS: The Cardinals. 24
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Examination by Mr. Hampton
1 BY MR. HAMPTON:
Page 51
2 Q. Go to No. 16 of Exhibit 1, the answers to
3 interrogatories, and the -- the question asks about
4 asbestos products, when they were manufactured, and
5 I've highlighted a portion of the response. 6 If you can take a look at that question and
7 read the highlighted portion of your response, and if 8 you want to read anything for clarification, any 9 additional sentence, that would be fine, too, if you 10 think anything needs clarification. 11 A. Okay. 12 Q. So the question asks about asbestos
13 cleaning products and when they were manufactured, 14 and the response that -- that I highlighted said, 15 "remanufactured and distributed clutches and clutch 16 parts, some of which contained asbestos friction 17 materials, beginning in July of 1981. BWDAC, Inc.
18 ceased the distribution of clutches with 19 asbestos-containing friction materials by 1993." 20 My question is as to the 1993, you know,
21 the ceasing of using the asbestos material. Where 22 did that date come from? Is that from documents or 23 knowledge that you have from the corporate history?
24 A. That was from documents.
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Examination by Mr. Hampton
Page 52 1 Q. Do you recall what document or documents 2 helped you or your attorneys come to that conclusion? 3 A. The main one was a -- a letter from 4 Raymark, or Raytech, that said -- they were a 5 supplier of asbestos facings -- that said that they 6 would no longer be selling asbestos facings. 7 Q. And there were other suppliers in addition 8 to Raymark, correct? 9 A. Yes. 10 Q. And other suppliers -- is it your 11 understanding that other suppliers continued to sell 12 asbestos clutch facings after Raymark ceased? 13 MS. ROSS: I'm going to object as vague. 14 To BW -- BWDAC or generally? 15 MR. HAMPTON: To -- to BWDAC. 16 BY THE WITNESS: 17 A. I can't remember. I don't have any 18 specific documents to that. 19 BY MR. HAMPTON: 20 Q. I'm going to refer to No. 21, and this 21 question asks about new clutches as opposed to the 22 remanufactured clutches, and the -- it asks who 23 supplied them. I'll just hand you that so you can 24 review the question, and please just go ahead and
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Examination by Mr. Hampton
1 read the highlighted portion of the suppliers.
Page 53
2 A. You want me to read it out loud?
3 Q. Yeah. I mean, if you need to read the 4 question for completeness, that's fine, you look at
5 it. I don't want it to be my interpretation of what
6 the question and answer were.
7 A. Okay. 8 Q. My question is -- well, I'll go ahead and
9 read it. 10 The question was, who are your suppliers
11 for the new clutches, and the answer lists BWD
12 International; EPE; Lipe; Midland; Borg & Beck; 13 Rockford Clutch; Luck, Fichtel & Sachs; Daikin; Alma
14 Products ; Eastern Industries; Kolon California Corp.;
15 Seojin; Pyeong Hwa; and Valeo. 16 My question is, can you exclude any of
17 those as -- or say that any of those only supplied 18 nonasbestos clutches?
19 A. No, I can't.
20 Q. Can you say that all of those supplied 21 asbestos clutches? 22 A. All, well, might have supplied some
23 asbestos clutches. 24 Q. But you don't know one way or the other if
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Examination by Mr. Hampton
Page 54 1 they -- as to that company, whether they did or did 2 not supply asbestos, or you believe they all supplied 3 asbestos clutches? 4 MS. ROSS: And I should have objected on 5 these earlier. I'm - 6 MR. HAMPTON: We need to go off the record 7 for the video. So let's go off the record, and he's 8 going to reset his tape and we'll be back shortly. 9 Let's take five minutes, give everybody a little 10 break. 11 THE VIDEOGRAPHER: This marks the end of 12 tape No. 1. We're off the record. The time is 13 10:43 a.m. 14 (WHEREUPON, a recess was taken.) 15 the VIDEOGRAPHER: We're back on the 16 record. The time is 10:50 a.m. 17 MR. HAMPTON: We're going to strike the 18 last question and move on. 19 How is that, Don? 20 MR. WARD: Yeah, that works. 21 BY MR. HAMPTON: 22 Q. All right. As part of that same response 23 to Interrogatory 21, the response continues and says, 24 "During this same time period 1981 to 1989 or 1990,
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Examination by Mr. Hampton
Page 55 1 Defendant also sold to the aftermarket new clutches 2 from these manufacturers that had nonasbestos3 containing friction materials." 4 From where did that information come? 5 A. Just from like the MSDS sheets, and some of 6 it would have just -- came from my memory of who some 7 of the vendors were. 8 Q. Okay. I've looked at the documents, and I 9 didn't see anything pertaining to nonasbestos in the 10 early to mid-'80s, and I'm wondering if you're 11 familiar with documents that would show there was 12 nonasbestos during the early to mid-1980s. 13 Can you direct me to any of those kind of 14 documents? 15 A. I don't think there's any specific 16 documents, but we know that -- I guess my general 17 knowledge is that not all clutches were asbestos 18 clutches. 19 Q. Can you tell me which clutches would be -20 would use nonasbestos during that time period? I'm 21 talking about from 1981 to the mid-1980s. 22 A. Well, there were different styles of 23 clutches, and some of the facings were metallic 24 facings, some of them were ceramic facings.
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Examination by Mr. Hampton
Page 56 1 Q. Is that for a special high heat application 2 or racing clutch? I'm wondering if you can tell me 3 the type of application which might have a 4 nonasbestos. 5 A. It would probably be more of a heavy-duty 6 type application. 7 Q. Are you talking about heavy-duty trucks? 8 Are you talking about heavy equipment like off-road 9 equipment? 10 A. Both. 11 Q. Does -- do you have any documents that 12 might pertain to that, or is this just your general 13 memory you're pulling on here? 14 A. Well, the catalog lists on -- styles of 15 clutch discs, and it talks about different materials, 16 I believe. I'm trying to think of the term, the 17 style of -- of what the clutch disc itself is. 18 Q. Okay. I brought a couple of catalogs with 19 me that you produced to us. Let me just reach over. 20 I brought a 1986 and a 1987. 21 A. Okay. 22 Q. We can mark that. What are we up to on 23 exhibits, 5 and 6? We'll make the 1986 Exhibit 5. 24
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Examination by Mr. Hampton
Page 57 1 (WHEREUPON, certain documents were marked 2 Plaintiffs' Deposition Exhibit No. 5 and 3 No. 6 for identification as of 07/18/2013.) 4 BY MR. HAMPTON: 5 Q. And I'll submit to you that I believe these 6 are both complete copies except for I added -- when I 7 got them off the printer, apparently I took somebody 8 else's pleadings and attached it to the back of it. 9 I guess I'll go ahead and remove that. 10 So if you would, please take a quick look 11 at those and make sure you agree. 12 A. Yes. They're -- Exhibit 5 seems to be 13 missing a little bit of what we call the buyers 14 guides, a lot of the pictures. 15 Q. On the back there? 16 A. Yeah. 17 Q. Which one do you think is missing that? 18 A. Exhibit 5, so the 1986 catalog. It's got a 19 few pictures of throw-out bearings. So on Page 78, 20 there's a listing of different types of plates. For 21 example, it shows molded, molded steel back, ceramic 22 button, cork, molded metallic. 23 Q. Okay. So when we look at those symbols, 24 they match up with the pictures and diagrams below.
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Examination by Mr. Hampton
1 From that, that -- you can determine what the
Page 58
2 material is? 3 A. Well, in that case, certain ones we know
4 would be nonasbestos. Some of them were asbestos or
5 nonasbestos just based on the style.
6 Q. Okay.
7 A. So if it says cork or -- well, even
8 though - but cork, we know that the whole material
9 was cork on that. We had molded steel. 10 Q. Would that be a combination of asbestos and 11 steel? 12 A. In some cases, yes. In some cases, there 13 would be no asbestos. 14 Q. Okay. Who at BWDAC during the 1980s would 15 have the most knowledge about these applications and 16 what was used and when? 17 A. Either someone like from the plant, like a 18 Bill Moreland or a John Casey, or a local plant 19 engineer or a product manager from the -- from the
20 clutch line back in the 1980s. 21 Q. Have you tried to contact any of those 22 individuals to further explain or be able to identify
23 asbestos or nonasbestos? 24 A. No.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 59 1 Q. Do you know if anyone on behalf of BWDAC 2 has done that? 3 A. No, I'm not sure. 4 Q. Now, when I was looking at these two 5 catalogs, I looked at 1986 and I was looking at 1987, 6 and as best as I can tell, I didn't see anything 7 referring -- specifically saying the word "asbestos"
8 in the '86 catalog. But in the '87 one, I saw a few 9 examples where it would have a -- the code for it was
10 like a No. 15, and it would say "nonasbestos," if you 11 could find a No. 15 by the -- by the -- beside the
12 clutch. 13
And so my question is, would that be the
14 only applications that are nonasbestos, would be the
15 ones that have that little No. 15 by it?
16 A. I'm not sure. 17 Q. Okay. Let me find one of those, and I'll 18 let you take a look at it and see what I'm talking 19 about. 20 Okay. There on the actual page is BWD 0 - 21 00699. That's an example of what I was referring to, 22 and it looked like that went to a larger truck, like 23 a diesel of some sort. 24 A. Yeah. A diesel engine on a medium truck,
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 it shows.
Page 60
2 Q. Is that consistent with your opinion about
3 the more heavy-duty applications?
4 MS. ROSS: I'll object to the form as
5 being -
6 BY THE WITNESS:
7 A. Repeat the question.
8 BY MR. HAMPTON:
9 Q. Well, earlier when we talked about
10 applications in this timeframe, we're talking about 11 1986 and 1987, and you said -- and I wondered if you
12 could tell me what -- is it a specific type of clutch 13 that might be a nonasbestos, and I believe -- correct 14 me if I'm wrong -- the response was a heavy-duty 15 application where you said maybe a larger truck or 16 equipment. 17 So my question -- was that accurate so far, 18 as I characterized what I thought you said? Is that
19 fair?
20 A. Yeah, but I was probablythinking about a
21 ceramic button clutch on a heavy-duty -
22 Q. Okay.
23 A. -- application.
24
Q. Okay.
Now, are youfamiliar with whatwe
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 61 1 just -- what I just talked about with this particular 2 page? And it talks about a nonasbestos facing, and 3 it refers to that truck. 4 A. Uh-huh. 5 Q. Is that consistent with any of your 6 recollection, or would that be in an application for 7 a nonasbestos lining, or is that new information to 8 you? 9 A. That's new information. 10 Q. Okay. And if you see those throughout this 11 catalog, my next question is, is would that be the 12 only clutches that have nonasbestos facings, ones 13 that specifically say so, as you see in the page you 14 just looked at? 15 A. I'm not sure, but the ones that are 16 highlighted as nonasbestos would obviously be 17 nonasbestos. 18 Q. The one that had that No. 15 next to it - 19 A. Right, right. 20 Q. -- that said "nonasbestos facings"? 21 A. Yes. 22 Q. And does that mean the other ones are 23 asbestos that are listed here? 24 A. I -- I can't -- I can't -- I don't know.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 62 1 Q. Okay. We can set those aside. We may come 2 back to them. 3 No. 25 asks about the suppliers for the 4 remanufactured clutch facings, and you listed eight 5 different suppliers: Raymark; Nutum; Akebono; 6 H.K. Porter; Daido, D-A-I-D-O; P.M. Warehouse; Fasco; 7 and Hawkhead. 8 When I looked through the documents that 9 were supplied, I didn't see all those names in there. 1 So my question is, do you know where all those names 11 came from, you know, replying that those were the 12 suppliers for the remanufactured clutches? 13 A. Again, it was a combination of the MSDS 14 sheets and my memory at the time when we were putting 15 that together. 16 Q. Do you recall if any of those came from 17 just your memory as opposed to the documents? 18 A. Well - 19 Q. The BWD documents. 20 A. No. I know some of those came from the 21 documents. 22 Q. Okay. Are there any that you said, "Well, 23 I don't see that in the document, but I know X 24 company supplied us linings"?
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Examination by Mr. Hampton
Page 63 1 A. I can't remember which ones that would have 2 been. 3 Q. And again, nobody was contacted in 4 Purchasing or in the plant to -5 A. No. 6 Q. -- try to find additional names or to 7 confirm that those were the suppliers? 8 A. Not that I'm aware of. 9 Q. Also, as to those names, do we know any 10 particular years when they supplied -- one of -- one 11 of those particular companies would have supplied 12 asbestos linings to BWD? 13 A. Well, I know it would have been between the 14 period of 1981 until we stopped manufacturing them. 15 Q. Okay. But you can't -- you don't have a 16 way to say Nutum -- as an example, "Nutum supplied us 17 from '83 to '85, but not '86"? 18 A. Right. No, I don't. 19 Q. You can't distinguish from that? 20 A. No. 21 Q. Based on the documents you've looked at, 22 it's not -- that kind of information is not found in 23 there? 24 A. Right.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 Q. Is that correct?
Page 64
2 No. 37 asks about the suppliers and the
3 type of -- and the type of asbestos used, and it
4 replies as chrysotile asbestos. 5 My question is, where did that information
6 come from as to the type of asbestos used? 7 A. That was on the MSDS sheets. 8 Q. From the suppliers or from the BWD MS
9 sheets?
10 A. Well, from the MSDS sheets that we have in
11 the repository. 12 Q. And what about if not all of those 13 suppliers haven't -- you -- I don't -- what if you
14 don't have an MSDS sheet for all of those individual 15 suppliers in the repository? Would you be able to
16 know whether -- what kind of asbestos it used? 17 A. No. But in most cases, it was the 18 chrysotile asbestos.
19 Q. And is that just coming from your knowledge
20 during that time period?
21 A. Just general knowledge, yes. 22 Q. The next question was as to the percentage 23 of asbestos used in the facings, and the reply was 10
24 to -- 10 percent to 39 percent.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 65 1 Same question. Where did that information 2 come from? 3 A. It came from the MSDS sheets. 4 Q. And 39 percent's a pretty specific number. 5 Is that -- the MSDS, is that the only source, or is 6 that any of your knowledge or anybody else's 7 knowledge? 8 A. That was the only source for -- for that 9 specific information. 10 Q. What was the first year available for MSDS 11 sheets from your suppliers? 12 A. I'm not sure. 13 Q. Do you have an approximate timeframe? 14 A. I'd have to take a guess. 15 Q. I don't want you to guess. So you can't 16 approximate it within a year or two? You can't tell 17 me it was ' 81 or it was '93? 18 A. When the first year on an MSDS sheet from 19 the supplier came? No, I can't. 20 Q. Okay. And BWD also made MSDS sheets, 21 correct? 22 A. Yes. 23 Q. Do you recall the first year that BWD 24 created MSDS sheets --
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 A. No.
Page 66
2 Q. -- about its own product that you were
3 selling?
4 A. No, I don't. 5 Q. And I understand that those MSDS sheets
6 made by BWD for its products, the customers would 7 have to ask for those, otherwise they would not get 8 one?
9 A. That was, yeah, my knowledge on that. Yes. 10 Q. And an MSDS sheet regarding the BWD
11 product, that's not something that an end user
12 mechanic in the field would receive?
13 MS. ROSS: I'm going to object on
14 foundational grounds.
15 BY THE WITNESS:
16 A. I'm not -- we would supply it to our 17 customers if they asked for that information. How 18 they disseminated that information, I'm not sure. 19 BY MR. HAMPTON:
20 Q. And let's talk about your customers. Who
21 were they?
22 A. The warehouse distributors? 23 Q. Correct. Can you explain that to me, what
24 "a warehouse distributor" means?
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 67 1 A. We can go through the whole traditional 2 market channel, which basically said you have a 3 manufacturer that was BWDAC that sold to a warehouse 4 distributor who in turn sold to a jobber, and a 5 jobber would then sell to either an installer or a 6 retailer. That could be the same person, a dealer. 7 Q. Can yougive me an example of a jobber? 8 A. I mean, that's -- most jobbers really - 9 like a NAPA store could be a jobber. 10 Q. Would that be -- now, I know there's a lot 11 of chains nowadays, but -- larger national chains. 12 But is that -- the jobber would be -- in the old 13 days, even though they'd be more regional or owned by 14 mom and pop, would that be like an AutoZone or a 15 Riley Auto Parts? Is that a jobber? 16 A. Riley Auto Parts, yes. An AutoZone is a - 17 is a retailer, but functions have changed over the 18 years. 19 Q. Okay. Big A's Auto Parts, and he's got one 20 in Chicago and one in Highland Park,would that be a 21 jobber? 22 A. No. Big A would -- could be a jobber and a 23 retailer. 24 Q. Okay. And I didn't -- is that a real name?
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 I just made that up, I thought.
Page 68
2 A. There used to be a Big A Auto Parts.
3 Q. What about -- what about Steve's Auto
4 Parts? 5 A. I think a NAPA store would be the best
6 example for --
7 Q. Of a jobber?
8 A. Right, and then an O'Reilly store because 9 they also -- they were primarily jobbers, but then 10 they also became big in retail. 11 Q. Okay. So the chain would go from BWD to a
12 warehouse?
13 A. Right. 14 Q. Which the guy on the street would never
15 know what the warehouse is.
16 A. Right, right. 17 Q. And then the warehouse then distributed to
18 the jobbers, and then the customer, whether it be a 19 garage mechanic or a background mechanic, would then
20 go to these jobbers to get the parts? 21 A. Yes. 22 Q. Okay. So would you expect a backyard
23 mechanic, when he goes in and buys a BWD clutch, to
24 get a MSDS sheet with it?
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 MS. ROSS: I'm going to object on 2 foundation grounds. 3 BY THE WITNESS:
Page 69
4 A. I'm not sure, but probably not. 5 BY MR. HAMPTON:
6 Q. While we're talking about the warehouses, I 7 had a question on that. Let me grab my document. 8 Let's mark that. This is a memorandum 9 dated September 14th, 2001 on Dana letterhead, to 10 Marcy Ducat and Denise O'Rourke, from Mr. Kotzum. So 11 I'll have her mark that, and take a look at that. 12 (WHEREUPON, a certain document was marked 13 Plaintiffs' Deposition Exhibit No. 7 for 14 identification as of 07/18/2013.)
15 BY MR. HAMPTON:
16 Q. Okay. Allright, sir. 17 that memo about?
What's -- what's
18 A. I was asked at the time to provide a list 19 of -- of customers that possibly could have purchased 20 clutches containing asbestos. 21 Q. Okay. And thesewould be the warehouse 22 customers?
23 A. Yes. 24 Q. Okay.Now, I'vegot -- the only thing I
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 70 1 could find in the documents produced is the one in my 2 hand that we'll have marked as Exhibit 8. But it's 3 only two years -- it looks like '96 to '98. So I was 4 wondering if there are maybe documents that I either 5 overlooked or that may be out there talking about 6 warehouse customers for different years than I' ve 7 been able to locate so far. 8 A. Again, I don't even remember seeing this 9 document in the repository. 10 Q. Okay. Do you remember seeing a list of 11 warehouse customers from the repository? 12 A. No. 13 Q. Okay. 14 MS. ROSS: Aren't those numbered 15 sequentially, those documents, the BWD numbers that 16 you -- of that memo and that document? 17 MR. HAMPTON: No. 18 MS. ROSS: Okay. 19 MR. HAMPTON: These go from 19685 to 19701, 20 and this is 19745. 21 MS. ROSS: Okay. 22 MR. HAMPTON: So I'm not -23 MS. ROSS: Okay. 24 MR. HAMPTON: I'm not sure --
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 71 1 MS. ROSS: Okay. I was -- I -- well, I 2 don't know why I thought -3 MR. HAMPTON: I don't know - 4 MS. ROSS: -- that they were originally. 5 MR. HAMPTON: -- if they go together. I 6 haven' t got a clue. 7 MS. ROSS: And does that -- well, let me 8 check. 9 MR. HAMPTON: Do you want -10 MS. ROSS: Yeah, thank you. 11 BY MR. HAMPTON: 12 Q. And I had another question where I think I 13 already know the answer to it, but I'm going to ask 14 it anyway. 15 In the answers to interrogatories, when 16 asked about warehouse customers within a 200-mile 17 radius of Madison County, some warehouse customers 18 were provided that were not on that list. 19 My question is, do you know where those 20 names of customers came from? 21 A. That would have just been, again, from 22 memory at the time, because I think we were 23 discussing that. I can't remember. Whenever we put 24 it together, because ten years ago, if the question
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 72 1 was asked, I would have been a lot closer to being 2 able to remember those documents or -- or who the 3 customer names were. But - 4 Q. Okay. So -- and the answer to that 5 question -- and let's just find it and then we can 6 see. I just don't -- didn't see that those -- the 7 customers that were on that answer didn't match up 8 with -- with the ones on this list on Exhibit 8. 9 So my question is, where did they come 10 from? How did we get those names? 11 A. If they're not on that list, they would 12 have had to come from -- from my memory. 13 Q. Okay. To your knowledge, nobody else was 14 asked about customers -15 A. Not to my knowledge. 16 Q. -- in response to that question? 17 A. No. 18 MR. HAMPTON: Valerie, do you know which 19 question that was? 20 MS. ROSS: It's towards the end. It's 21 definitely in the 100s somewhere. There you g. 22 MR. HAMPTON: Oh. 23 MS. ROSS: It's 108. 24 MR. HAMPTON: Here it is, 109.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 73 1 MS. ROSS: Oh, yeah. That's right. 2 (WHEREUPON, a certain document was marked 3 Plaintiffs' Deposition Exhibit No. 8 for 4 identification as of 07/18/2013.) 5 BY MR. HAMPTON: 6 Q. Question 109, I've highlighted the 7 customers listed. 8 A. Yes. 9 Q. Which when I cross-reference with the 10 Exhibit A customer list, they were different. So 11 does that make sense based on what we talked about 12 earlier, those must have come from your memory, and 13 this was the -- these were the answers just done in 14 February of -15 A. Right. 16 Q. -- of this year? 17 A. Yeah, and I know that information was taken 18 from prior depositions of names of customers that we 19 would have had. 20 MS. ROSS: Depositions or interrogatories? 21 THE WITNESS: Or interrog -- yeah. I'm 22 sorry. Interrogatories. 23 BY MR. HAMPTON: 24 Q. Okay. So we -- there are no documents, to
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 74 1 your knowledge, with a list of warehouse customers; 2 is that correct? 3 A. Right. 4 Q. Other than -5 A. Other than -6 Q. -- what was produced in litigation like 7 legal documents? 8 A. Yes. 9 Q. Answers to interrogatories? 10 A. Yes, or like that document. 11 Q. Okay. All right. Thank you. 12 A. Were any of -- my question, were any of the 13 names -14 Q. When I -- I'm not under oath here. When 15 I -- when I looked at them, yeah, about half of them 16 were. 17 A. Okay. 18 Q. And I was probably word searching, too, so 19 the computer may have skipped some stuff. So I was 20 word searching this document, which is probably ten 21 or more pages. I didn't go through each one and try 22 to match it up. 23 A. Okay. 24 Q. So the computer -- it's possible the
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 computer didn't pick it up.
Page 75
2 A. Okay.
3 Q. That's why I was just asking if you had
4 ever given any personal knowledge.
5 In addition to you, who would be best --
6 who could we ask to best find out who the customers
7 were?
8 I mean, do you know the names of salesmen
9 from different regions? It looked like there were
10 several regions here. 11 Do you want me to rephrase the question? 12 A. Yes. 13 Q. Let's -- hypothetically, let's say I want 14 to know your customers from Region 4 in 1986. How 15 would I go about getting that information?
16 Do you know the VP of sales, or is there
17 some other way to figure it out?
18 A. Well, the VP of sales from that time period 19 was Pete Anderson, so I guess you could talk to him 20 and see what he can remember. 21 Q. Is that the only way to try to piece the 22 customers back together to figure out which customers
23 we had? 24 A. Yeah, because I'm not aware of any -- any
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 76 1 documents that are still available to go through and 2 do that. 3 Q. Okay. Well, let's -- let's start with 4 Region 1. 5 Do you -- who would be the most 6 knowledgeable person in Region 1 in the mid-1980s? 7 A. Where is Region 1 on that sheet? 8 Q. It looks like -- I see a couple that say 9 Indiana. These are just names, so some of them have 10 a state after them and some don't, but it looks like 11 there's an Indiana, so -- and if you know the 12 regions, but not by number, we can say northeast, 13 southeast, Midwest, and you would know who might have 14 that information. 15 A. I'm just refreshing my memory on this. 16 It's been -17 Q. And those are -18 A. -- quite a few years. 19 Q. And those are -- those are quite a bit 20 later than the years I'm interested in, but maybe the 21 regions are the same. 22 A. I must admit, I cannot remember the 23 regional managers' names. 24 Q. And you've already told us who the manager
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 77 1 of all the regions was, right? And what was that 2 name? 3 A. Pete Anderson. 4 Q. Okay. Thank you. 5 The BWDAC had the Ottawa facility where 6 asbestos parts were being manufactured. Were there 7 any other facilities owned by BWDAC where asbestos 8 parts were manufactured? 9 A. Not that I'm aware of. 10 Q. I thought I read in one of them that 11 California, Kolon, California, might have made 12 something? 13 A. Corona, California. 14 Q. Corona. I'm sorry. 15 A. Yes. 16 Q. And what did they manufacture there? 17 A. Clutches. 18 Q. Okay. And do you recall the time period? 19 Is it early on or later on? 20 A. I'm thinking 1985, because that facility 21 was acquired. 22 Q. Okay. 23 A. And then it was closed probably in the late 24 '80s.
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Examination by Mr. Hampton
Page 78 1 Q. Okay. And looking through the documents 2 produced to us, I didn't see anything about that 3 facility in those documents. 4 Do you know if there are any documents that 5 exist regarding that plant, the transactions, when 6 the plant was purchased, anything like that? 7 A. Not that I'm aware of. It would have been 8 all part of the repository, if it was. 9 Q. Okay. Was that plant closed or sold to 10 somebody else, if you know? 11 A. I believe it was closed. 12 Q. Were there any employees that worked at 13 Ottawa and Corona? 14 A. Not that I'm aware of. 15 Q. They didn't have any of the Illinois guys 16 working out there for a year or two and then come 17 back, to your knowledge? 18 A. They could have, but not to my knowledge. 19 Q. As far as any additional information, 20 suppliers of the asbestos-containing parts or the 21 purchasers of it, do you have any of that information 22 at all? 23 A. No. 24 Q. Other than Corona, are there any other
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 79 1 plants where asbestos products were manufactured, 2 sold or distributed? 3 A. No. 4 Q. Okay. What's the Ballwin, Washington 5 plant? What were they doing there? 6 MS. ROSS: I'll object on foundational 7 grounds. That was not part of BWDAC. He can answer 8 to the extent he knows. 9 BY MR. HAMPTON: 10 Q. Okay. That's all I'm asking. Yeah, I 11 saw -- I keep seeing it pop up in documents. I don't 12 know what it is. 13 What do they make there? And if it's not 14 part of them, who are they? Why is it in the 15 documents? 16 A. That was part of the aftermarket 17 acquisition of Borg-Warner, and they made emission 18 control parts and carburetor kits. 19 Q. Did BWD employ any engineers or designers 20 for the purposes of making the clutches that were 21 made at either Ottawa or Corona? 22 A. The only engineers I'm aware of were 23 industrial engineers that developed a manufacturing 24 process.
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Examination by Mr. Hampton
Page 80 1 Q. But not specific to the product itself, the 2 manufactured product? 3 A. Right, yeah. They would just decide how we 4 were going -- if we were going to remanufacture, what 5 the steps would be to doing that. 6 Q. Okay. What about the product itself? 7 Who -- who 's the -- who were the individuals, what 8 were their titles, that would figure out how to make 9 the clutches? 10 A. Well, those were the industrial engineers. 11 Q. Okay. What -- I'm talking about the 12 product itself, as like how do you put a clutch 13 together? Who would know how to put a clutch 14 together? 15 A new model comes out and they've got to 16 match the new whatever, specifications for the new 17 clutch. Who would be involved in doing that? 18 MS. ROSS: I'm going to object to the form 19 as vague. 20 Do you -- do you mean remanufactured 21 clutches? 22 MR. HAMPTON: Yeah, absolutely. You make a 23 remanufactured clutch. 24 MS. ROSS: All right.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 BY MR. HAMPTON:
Page 81
2 Q. So they -- they come in, they -- they strip
3 it down and they put new facing on it.
4 A. Right. 5 Q. So the question is, who's involved in
6 figuring out how to do that?
7 A. That would have -- again, the engineers, 8 the marketing department would say, A, "We want to
9 remanufacture this clutch," and the plant engineers 10 would go out and buy that clutch and figure out how
11 to take it apart and remanufacture it. 12 Q. Okay. So the industrial engineers?
13 A. Yes, I believe that was their title. 14 Q. Okay. And so those would be the guys most 15 in charge of making sure a clutch is -- meets 16 specifications?
17 A. Yeah. I mean, from what I -- from what I 18 know, yes. 19 Q. And I'm not talking about any kind of
20 testing related to asbestos or anything like that,
21 but testing as far as the quality of the clutch. 22 Did you have a -- an R&D department that
23 would test the clutch to make sure it was a quality
24 clutch?
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 A. There would be a quality control 2 department. 3 Q. How many people would be in that 4 department?
Page 82
5 A. I don't know. 6 Q. And I understand from the -- the answers 7 that the specifications were received from the 8 equipment manufacturers?
9 A. Well, the original equipment people 10 designed the clutches. 11 Q. And then how would BWD be able to build or 12 make a remanufactured clutch?
13 A. In the beginning, because we only
14 remanufactured Borg-Warner made clutches, Borg-Warner
15 would supply the engineering sheets on how to
16 remanufacture them.
17
Q.Okay. And did that
change as time went on?
18 A. It would -- I would assume it did because 19 other -- other manufacturers became original
20 equipment suppliers, and I'm not sure how we got the 21 specifications from the -- the new manufacturers. 22 Q. And then BWD takes those specifications and 23 the quality control guys, with the engineers, then
24 figure out how to build a clutch that meets the --
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 83 1 A. Right. Yes. There was a process, I think 2 they call it reverse engineering, where you get a 3 completed product of any type and the engineers 4 figure out how to take it apart and build it. 5 Q. Okay. No. 33 of the Exhibit No. 1 answers 6 to interrogatories, take a look at that. 7 A. The highlighted section? 8 Q. Yes. I'd like you to read the highlighted 9 section. Feel free to read it all first, if you'd 10 like. 11 A. The interrogatory says, "With respect to 12 each product listed in response to Interrogatory 13 No. 19, state whether, based upon the material 14 contents, the method of manufacturing, and the method 15 of application, such product could generally be 16 applied or installed without liberating asbestos 17 fibers." 18 And in the response highlighted, "All of 19 the clutches made with asbestos-contained - 20 containing facings sold by Defendant were safe for 21 the intended use for which they were manufactured. 22 All products could be installed without release of 23 asbestos fibers exceeding the PEL or TLV in existence 24 at any time."
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Examination by Mr. Hampton
Page 84 1 Q. So is the answer to that question no? 2 A. The answer basically said it could 3 generally be applied or installed without 4 liberating -- yes, it could be installed without 5 liberating asbestos fibers. 6 Q. That don't exceed the PEL? 7 A. Yes. 8 Q. Okay. So does that mean that you can't 9 install or remove it without liberating asbestos 10 fibers? 11 A. You -12 MS. ROSS: Object to the form. It was 13 vague. Go ahead. 14 BY THE WITNESS: 15 A. Yeah, you -- you can install it without -16 BY MR. HAMPTON: 17 Q. Without exceeding the PEL, but you can't 18 install it without liberating some asbestos fibers? 19 MS. ROSS: Object to the form. 20 BY MR. HAMPTON: 21 Q. Is that the way -- does that make sense? 22 I'm not trying to be tricky. I'm just -23 A. No, okay. 24 Q. -- trying to get an answer to the question.
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Examination by Mr. Hampton
1 A. Right, right, right.
Page 85
2 Q. This is a yes-or-no question. The answer
3 would be no, you can't install it without liberating
4 some asbestos fibers?
5 MS. ROSS: I'm going to object to the form.
6 It's vague and -
7 BY THE WITNESS: 8 A. Right, I - 9 BY MR. HAMPTON:
10 Q. You want to look at it again?
11 A. No. How -- how you've related the 12 question, you're correct. It assumes that you're 13 going to liberate some fiber, but they're going to be 14 below the limits. 15 Q. Right.
16 A. Yeah. 17 Q. And you agree with that?
18 MS. ROSS: Does he agree that that's what
19 the answer says, or does he agree with that as a 20 general proposition?
21 MR. HAMPTON: Do you have an objection?
22 MS. ROSS: I'm going to object as vague.
23 MR. HAMPTON: I'm going to object as a
24 talking objection.
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Examination by Mr. Hampton
1 MS. ROSS: Fair enough.
Page 86
2 BY THE WITNESS:
3 A. I agree that what that says is that there 4 is the potential for liberating some fibers. What I 5 believe is that, no, there shouldn't be any because 6 you don't have to touch the facing. 7 BY MR. HAMPTON:
8 Q. Okay. Now - 9 A. I mean, or do any -- anything to the
10 facing -11 Q. Okay.
12 A. -- while you're installing it. 13 Q. Now, you're talking about your personal
14 opinion or you're talking about BWD's opinion?
15 A. I guess that's my personal opinion. 16 Q. Okay. So the question, the way it reads 17 and the way the answer reads is that, no, you can't
18 install or remove it without liberating some asbestos
19 fibers; is that correct?
20 MS. ROSS: Object as asked and answered.
21 BY THE WITNESS:
22 A. That's how it reads, yes. 23 MR. HAMPTON: All right. We're going to
24 get ready to go into a few different things. Let's
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Examination by Mr. Hampton
1 take another short break.
Page 87
2 THE WITNESS: Okay.
3 MR. HAMPTON: Say five minutes, and we'll
4 come back.
5 THE VIDEOGRAPHER: We're off the record.
6 The time is 11:34 a.m. 7 (WHEREUPON, a recess was taken.) 8 THE VIDEOGRAPHER: We're back on the record
9 at the beginning of tape No. 3. The time is 10 11:46 a.m. 11 BY MR. HAMPTON:
12 Q. Mr. Kotzum, did BWD ever conduct any tests 13 of any kind on the asbestos clutches concerning the 14 possible or potential health hazards?
15 A. Well, in the plant, we had regular testing 16 done in the plant. I guess that's the answer. 17 Q. Were -- other than industrial hygiene 18 testing that was done in the plant, was any -- were
19 any tests undertaken on BWD clutches to test 20 potential or possible health hazards on the product 21 itself? 22 A. Again, I think we assume that because they 23 were being manufactured in the plant, and we were 24 concerned with our employees working with them on a
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 88 1 regular basis, then we would do our testing in the 2 plant to see what their exposure would be. 3 Q. And -- and I understand that. But what 4 about real world user applications such as garage 5 mechanics and the -- just the end products that they 6 used? 7 It's correct no tests were done of that 8 kind; is that -- is that fair? 9 A. Not that I'm aware of. 10 Q. And were any tests done -- there were never 11 any tests done to figure out how to reduce exposures 12 to asbestos when using the end products; is that a 13 fair statement? 14 A. Again, not that I'm aware of. 15 Q. Let's go back to Exhibit 1, the answers to 16 interrogatories, and Interrogatory No. 43, and I'm 17 going to show you this question and answer, and 18 familiarize yourself with it, please. 19 A. Okay. 20 Q. Did you have any input in the response to 21 that question? 22 A. We discussed it, and I think I reviewed the 23 response for reasonability, and I agreed with it. 24 Q. Okay. And if you look down to the second
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 89 1 paragraph on Page 40 and all of Page 41, just take a 2 look at that. 3 A. Okay. 4 Q. Were those drafted entirely by your 5 attorneys, by the attorneys for BWD? 6 A. Again, I had some input and discussion, but 7 yeah. The wording, yes. 8 Q. Okay. Do you know anything about those 9 studies that are cited to in Paragraph 2, starting on 10 Page 40? 11 A. Only that they -- those studies were -12 were in the repository, but I don't know any of the 13 details. 14 Q. I wasn't able to locate any of those 15 studies in the repository. 16 A. Okay. 17 Q. So maybe we'll need to take another look at 18 that. But as far as the studies go, you have never 19 read any of those studies? 20 A. No. 21 Q. Has anybody else for -- to your knowledge, 22 in the BWD organization, have any of them ever read 23 these studies? 24 A. Not to my knowledge.
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Examination by Mr. Hampton
Page 90 1 Q. Other than the attorneys, has -- to your 2 knowledge, has anybody read any of these studies 3 listed on the second paragraph of Page 40, going to 4 Page 41? 5 MS. ROSS: I'm going to object as vague. 6 BY THE WITNESS: 7 A. Yeah. I mean, to my knowledge, no. But I 8 would assume that people at the Ottawa plant at the 9 time would have had knowledge of those studies. 10 BY MR. HAMPTON: 11 Q. And are there any documents that BWD stayed 12 abreast of the state of the art or the knowledge 13 related to asbestos as recited here at Page 40 and 14 41? 15 A. Are there any documents? 16 Q. Yeah. 17 A. Not that I'm aware of. 18 Q. Okay. And BWD didn't have a research 19 department, is that correct, related to asbestos? 20 A. An R&D type department? 21 Q. Right. 22 A. No. 23 Q. And did they keep any kind of a library 24 with scientific and medical articles?
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Examination by Mr. Hampton
1 A. I'm not sure.
Page 91
2 Q. And I'll -- I'll submitto you in the
3 answers to interrogatories here it says there was not
4 any medical and scientific library.
5 A. Okay.
6 Q. Is that --wouldyou agree with that, if
7 that's what it says?
8 A. If that's what it says, yes.
9 Q. Okay. Now we'llgo back to the highlighted
10 portions of the same question and ask that you read
11 the highlighted question and answer.
12 A. Okay.
13 Q. And if you would like to add anything to
14 that, you know, that's part of the question or answer
15 for completeness, please feel free to do so.
16
A. Well, "With respect to
the productslisted
17 in response to Interrogatories 19 and 42, did 18 Defendant, any predecessor or related company or the
19 manufacturer of the products ever conduct tests of
20 any kind on any or all of said products concerning 21 possible or potential hazards involved in its use or 22 in the use of materials contained therein?" 23 And response: "Subject to and without 24 waiving objections, it was known from generally
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 92 1 available medical, scientific and industrial hygiene 2 literature that threshold limit values applied to 3 asbestos-containing products. 4 "Industrial hygiene studies conducted at 5 BWAC's (sic) manufacturing facilities illustrated the 6 products were remanufactured safely. The 7 remanufacturing process included the removal of worn 8 asbestos clutch facings and replacing remanufactured 9 clutch plates with asbestos-containing facings on a 10 continuous day-to-day operation." Or excuse me. "On 11 continuous day-after-day operations. 12 "Those remanufacturing operations did not 13 result in exposures in excess of applicable 14 permissible exposure limits of asbestos fibers. As a 15 result, it was reasonable to assume that the product 16 could be safely used by a consumer whose exposure to 17 any potential asbestos fiber release from the use of 18 those products in either removal or installation 19 would be very substantially less than the 20 remanufacturing environment." 21 Q. Thank you. 22 Did you have any input into that response 23 that you just read back? 24 A. Yes. You know, as far as the -- the
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Examination by Mr. Hampton
Page 93 1 assumption portion of it, you know, knowing that, 2 again, the company was -- we were a very 3 conscientious company when it came to products we 4 produced and our employees, the safety of our 5 employees. 6 And although there was also requirements 7 for OSHA or different agencies to be testing, we did 8 a lot of that on our own anyway because we were 9 concerned about the safety of the employees, and the 10 fact that all those tests came out at very low rates 11 in relation to the acceptable levels, and the 12 employees were virtually eight hours a day working 13 with it, you know, we did not feel that there would 14 be any danger to somebody that was periodically 15 installing one of our products. 16 Q. And as to the way the operation worked, 17 though, there were sophisticated industrial controls 18 in place helping keep those levels low; is that 19 correct? 20 MS. ROSS: I'll object to the form as 21 vague. 22 BY THE WITNESS: 23 A. Yeah. 24
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Examination by Mr. Hampton
1 BY MR. HAMPTON:
Page 94
2 Q. Engineering controls to keep the exposure 3 levels low?
4 MS. ROSS: Same objection. 5 BY THE WITNESS:
6 A. Yeah. I don't know what kind of
7 engineering controls we could have to keep that 8 exposure low, you know. I mean, the manufacturing
9 process is what it is, you know. It isn't like we 10 came up with a clean environment like you might see 11 when they worked with high tech computer chips or
12 things like that. 13 BY MR. HAMPTON: 14 Q. I've got a -- one of the reports of
15 industrial hygiene studies from 1981. We can mark
16 that. 17
Mark that as No. 9.
18 (WHEREUPON, a certain document was marked
19 Plaintiffs' Deposition Exhibit No. 9 for
20 identification as of 07/18/2013.) 21 BY MR. HAMPTON: 22 Q. The company that did the study is called
23 Natlsco, and it's titled "Report of Industrial
24 Hygiene Study for Borg Warner-Ecklund, Ottawa,
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 November
0
l-h 00
Page 95
2 And I've highlighted two portions, two --
3 it looks like sentences, and I've tagged them. If
4 you could read those, please, and feel free to look
5 at the document if you'd like to familiarize yourself
6 with it.
7 A. Okay. 8 Q. Please read the highlighted portions.
9 A. "Summary of Results." "However, two 10 employees were found to be in excess of the NIOSH 11 recommendation of 0.1 fibers per cubic centimeter of 12 air as a time weighted average." 13 Q. Okay. 14 A. Okay. 15 Q. Do you know what NIOSH is or what it stands
16 for?
17 A. No, I don't. 18 Q. Can you go -- go to the next one? 19 A. I can make a guess, but -20 MS. ROSS: No guessing.
21 BY THE WITNESS:
22 A. Second, under "Recommendations," point 23 No. 1, last line, "Based on the results of this study
24 (and the OSHA program directive -- see discussion)
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Examination by Mr. Hampton
1 D. Wendt, driven plate assembler riveter, and
Page 96
2 J. Grundon, face banding bundler, should be included
3 in this program."
4 BY MR. HAMPTON:
5 Q. What's that mean? 6 A. Well, prior to that, it shows the
7 recommendation for giving annual medical 8 examinations, which includes a chest roentgenogram, 9 respiratory disease history, and pulmonary function
10 tests. So it sounds like those two individuals 11 they've recommended should be included in the program
12 of testing these employees. 13 Q. Flip back to the previous question on 14 NIOSH. I think I asked you if you know what it 15 stands for, and you said no, but do you know what
16 NIOSH is generally? 17 A. It's safe and healthy -- health standards
18 committee or -- we know it's an acronym. 19 Q. I've got another -- a memo I'd like to mark
20 and have you look at it. 21 (WHEREUPON, a certain document was marked
22 Plaintiffs' Deposition Exhibit No. 10 for
23 identification as of 07/18/2013.) 24
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Examination by Mr. Hampton
1 BY MR. HAMPTON:
Page 97
2 Q. It has been marked as Exhibit 10. Please
3 familiarize yourself with the memo.
4 MS. ROSS: I'm sorry, what is the date on
5 it?
6 THE WITNESS: May 26, 1982.
7 BY THE WITNESS:
8 A. Okay. 9 BY MR. HAMPTON:
10 Q. Please read the highlighted portion.
11 A. "Please take the necessary actions to
12 ensure your departments will meet the necessary
13 requirements for inspection. (Take extra time on 14 Thursday afternoon to ensure a thorough cleaning of
15 your area)."
16 Q. What are they talking about there? 17 A. They're talking -- Aetna Life & Casualty 18 was conducting an environmental hygiene and noise
19 level survey in the plant on Friday, June 11. 20 Q. Okay. And who drafted that memo? 21 A. A lady named Vonnie Peabody. I'm not aware 22 of who she was. 23 Q. Thank you. 24 Now, within the BWD organization, what
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Examination by Mr. Hampton
1 would that statement mean that you just read?
Page 98
2 A. Well, basically, and I think any time we
3 had visitors from outside locations or areas, they
4 wanted people to be aware of it and be prepared for
5 whatever the examination was going to be.
6 Q. And in parentheses it says, "Take extra
7 time on Thursday afternoon to ensure a thorough 8 cleaning of yourarea," in -- in preparation for an
9 industrial hygiene test. So I was wondering if that
10 had any particular meaning to you, what he's telling
11 the organization, what she's telling the
12 organization.
13 A. Not really, you know. 14 Q. The next document is "Report of Technical 15 Services Study," prepared for BWD Corporation. The
16 survey date was June 11, 1982, and we'll mark that as 17 one as Exhibit -- what are we up to, 11?
18 MS. ROSS: I'm sorry, what's the date on
19 it?
20 MR. HAMPTON: June 11, '82 was the survey
21 date.
22 MS. ROSS: Thank you. 23
24
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Examination by Mr. Hampton
Page 99 1 (WHEREUPON, a certain document was marked 2 Plaintiffs' Deposition Exhibit No. 11 for 3 identification as of 07/18/2013.) 4 BY MR. HAMPTON: 5 Q. Mr. Kotzum, please take time to familiarize 6 yourself with the document, and I've tabbed and 7 highlighted a portion. 8 MS. ROSS: If I could look at the 9 highlighted stuff before he will read it out loud, 10 because I may want to ask him to read other - 11 MR. HAMPTON: Absolutely. 12 MS. ROSS: -- portions of it for 13 completeness. 14 MR. HAMPTON: Absolutely. 15 MS. ROSS: Thank you. 16 THE WITNESS: So you want to see it first? 17 MS. ROSS: You can look through it, but 18 then hand it to me before you read anything. 19 MR. WARD: Off the record. 20 (WHEREUPON, discussion was had off the 21 record.) 22 MS. ROSS: You ask that he read the whole 23 of the paragraph that he highlighted, the second 24 paragraph, so --
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Examination by Mr. Hampton
Page 100 1 MR. HAMPTON: You want to highlight it? 2 There you go. 3 BY THE WITNESS: 4 A. Okay. You just want me to read this now? 5 BY MR. HAMPTON: 6 Q. Please. 7 A. Okay. Under the section on discussion on 8 asbestos, "Asbestos fibers may become airborne as the 9 facings containing asbestos are drilled and sanded." 10 Next paragraph, "The concentration of 11 asbestos fibers range from 0.04 fibers longer than 12 five micrometers per cubic inch of air (F/cc) to 0.61 13 F/cc. These concentrations are well below the OSHA 14 permissible exposure limit of 2 F/cc. The local 15 ventilation at the rivet and general area ventilation 16 provides adequate control." 17 Q. Thank you. 18 Which demonstrates that even with local 19 ventilation control like I was referring to earlier, 20 engineering controls, there's still asbestos fibers 21 being released in the work area; is that correct? 22 A. That would sound correct. 23 Q. I've got a document titled "Noise Survey 24 and Hygiene Survey," a memo with attached hygiene
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Examination by Mr. Hampton
Page 101 1 study done by the Illinois Department of Commerce and 2 Community Affairs. We'll mark that as Exhibit 12. 3 (WHEREUPON, a certain document was marked 4 Plaintiffs' Deposition Exhibit No. 12 for 5 identification as of 07/18/2013.) 6 BY MR. HAMPTON: 7 Q. Mr. Kotzum, please take a look at that 8 document, the highlighted portions and anything else 9 you'd like to look at for completeness, and then read 10 the highlighted section. 11 A. Okay. Okay, okay. This is a noise survey 12 and hygiene survey dated July 13th, 1983, from Vonnie 13 Peabody to John Casey, Barb Peterson, Bill Moreland, 14 John Dettore, Ron Locke, and all supervisors. 15 "On Tuesday, August 16 and Wednesday 16 August 17 the State of Illinois will be here to 17 conduct a noise and hygiene survey of our facility. 18 The survey will begin at 7:00 a.m. and continue for 19 two days." 20 Okay. Now, on the next page back, there's 21 a table of air monitoring results on asbestos. It 22 says, "Maintenance man (removing material from 23 collection system for Detroit line)." 24 Next to that, under the column "Asbestos,"
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Examination by Mr. Hampton
Page 102 1 it shows "0.37 f/cm3." That looks like CM to the 2 third power. I don't know. 3 The next page, under "Discussion and 4 Asbestos, CFR 19.1001," "The maintenance man's 5 exposure for the duration of the system's cleaning 6 (approximately five minutes) was 0.37 F/cm3 fibers 7 per cubic centimeter of air. Additional monitoring 8 is strongly recommended for the duration of the 9 operation for all three collection systems to 10 determine his normal exposure level." 11 Next page, "However, current research 12 conducted by the National Institute of Occupational 13 Safety and Health (NIOSH) has indicated that the PEL 14 should be lowered to 0.5 F/cm3 due to its 15 carcinogenicity." I'm bad on that word. 16 "Epidemiological studies of asbestos 17 workers have shown that exposure to asbestos 18 increases the risks of developing cancer, 19 mesothelioma (the lining of the lung and abdomen) and 20 asbestosis (chronic lung disease)." 21 And then down a couple paragraphs, 22 "Available studies provide evidence that as little as 23 one exposure to asbestos fibers may have harmful 24 effects."
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Examination by Mr. Hampton
Page 103 1 Q. Thank you. And that's the report dated the 2 year 1983 by the Illinois Department of Commerce that 3 did the survey; is that correct? 4 A. Yes. 5 MR. WARD: You guys still there? 6 MR. HAMPTON: Yeah. I'm weeding out 7 documents, Don. 8 MR. WARD: Oh, okay. 9 MR. HAMPTON: I'm trying to make it less 10 painful for everyone. 11 MR. WARD: That's cool. I just wanted to 12 make sure I wasn't having a stroke. 13 BY MR. HAMPTON: 14 Q. Mr. Kotzum, I've got a couple of documents 15 here that refer to OSHA and an OSHA violation. 16 Are you familiar with any OSHA violations 17 at the facility? Are you familiar with those 18 documents or familiar with it from you being there 19 realtime? 20 A. I'm familiar with one, I think, that we had 21 in one of our interrogatory responses. 22 Q. Okay. And you -- and is that a citation 23 for dry sweeping of asbestos in 1990? 24 A. I believe that was it, and in filling out
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Examination by Mr. Hampton
1 the form wrong.
Page 104
2 Q. Okay. Is that the only citation you're
3 familiar of?
4 A. That I'm aware of, yes. 5 Q. Related to asbestos?
6 A. Yes. 7 Q. You don't need that document. 8 Okay. I've got a document dated
9 March 10th, 1993, BWD Automotive Corporation
10 letterhead, that addresses the OSHA violation that we 11 just discussed, and I'm including -- it looks like
12 five pages. I'm highlighting one section to read.
13 We'll mark that as Exhibit 13, and I'll hand it to 14 your attorney.
15 (WHEREUPON, a certain document was marked
16 Plaintiffs' Deposition Exhibit No. 13 for
17 identification as of 07/18/2013.)
18 MS. ROSS: Only the highlighting that's on
19 the first page, right?
20 BY THE WITNESS:
21 A. Okay. This is a BWD Automotive Corporation 22 memo dated March 10th, 1993, to Mr. Charles J. 23 Shields, area director, U.S. Department of Labor, 24 Occupational Safety and Health Administration in
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 North Aurora, Illinois, "Re: Your letter of
Page 105
2 2/24/93." And I see this is written by Barb, Barbara
3 Peterson, also.
4 BY MR. HAMPTON:
5 Q. And who's Barbara Peterson? 6 A. She was the human -- or the manager of
7 industrial relations. 8 "Over the past few years, 95 percent of 9 units manufactured using facings do not contain any
10 asbestos. 11 "I have enclosed copies of the air sampling
12 results for the airborne asbestos for three previous 13 years. 14 "The results have been continuously below 15 the permissible exposure level and action level. 16 With this in mind, and with the knowledge of our
17 extensive ventilation system, we do not provide or 18 encourage the use of respiratory protection or employ
19 specific training associated with 29 CFR 1910.1001 to 20 our general workforce. 21 "We do, however, provide annual
22 preemployment and termination physical exams which 23 include a pulmonary function test and chest x-rays
24 for those employees who worked or have worked with
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Examination by Mr. Hampton
1 asbestos-containing materials."
Page 106
2 Q. Again, this demonstrated even with, as it
3 describes in this letter, self-described extensive
4 ventilation systems, they're still experiencing
5 release of some asbestos fibers; is that accurate?
6 A. Yes. 7 Q. I have a memo with some industrial hygiene 8 results on BWD Corporation letterhead, with the test
9 results on Hygenix, Inc. letterhead to Echlin, Inc.
10 regarding the Ottawa facility. It's dated -- it 11 looks like January through June of 1995.
12 Mark that Exhibit 14, and I'll pass it to
13 counsel. 14 (WHEREUPON, a certain document was marked
15 Plaintiffs' Deposition Exhibit No. 14 for
16 identification as of 07/18/2013.) 17 BY MR. HAMPTON:
18 Q. Okay. Mr. Kotzum, please take a look at
19 the documents and familiarize yourself with it, and
20 then I'll ask you a couple of questions.
21 Go ahead and keep it.
22 A. Okay. 23 Q. Go ahead and tell us about Page 1. What is
24 Page 1 talking about?
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Examination by Mr. Hampton
Page 107 1 A. Again, it's an interoffice memo from Barb
2 Peterson on the hygiene survey done at Ottawa in
3 January 1995. It's dated June 6th, 1995. 4 Q. Okay. Now, turn to the next page and
5 there's two gentlemen, maybe -- I think it's one
6 gentlemen, one woman. The names are highlighted.
7 Can you read those two names of which
8 they -- some testing was done?
9 A. Yeah. Core prep, Jim Rogers; facing
10 drills, Wanda Klemm. 11 Q. Okay. Now turn to the next page.
12 A. Okay. 13 Q. What's on the next page? What are the -
14 what is the analysis there?
15 A. It says, "Asbestos Analysis Airborne Fiber 16 Quantification," "Site Location," "Drills."
17 Q. Okay. For which individual is that
18 analysis?
19
A. W. Klenen.
This must be a different -
20 there's actually a different spelling, it looks like,
21 on the hygienist's report than on the - 22 Q. Okay. And -- and then the -- on the
23 analysis, what was the time weighted average for that
24 individual's exposure to asbestos?
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Examination by Mr. Hampton
Page 108 1 A. Equals 0.182 F/cc over 401 minutes. 2 Q. And I want you to assume that the PEL, or 3 permissible exposure limit, in 1995 was 0.1 fibers 4 per cc. Would that be in excess of the PEL? 5 A. Yes. That was, but -6 Q. That's with my assumption? 7 A. Yeah. Okay. 8 Q. Mr. Kotzum, go on to the last page -9 A. Okay. 10 Q. -- and tell us what that analysis is and of 11 whom. 12 A. Again, core preparation area, J. Rogers, 13 and then it says "time weighted average equals 0.123 14 F/cc over 385 minutes." 15 Q. Okay. Make the same assumption if the PEL, 16 or permissible exposure limit, at that time was 0.1, 17 would that be in excess of that PEL? 18 A. Yes. 19 Q. Thank you. 20 MR. HAMPTON: Okay. We're getting ready to 21 switch areas again. Let's take a short break for an 22 off-the- record discussion. 23 MS. ROSS: Actually, one thing pointed out 24 to me --
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Examination by Mr. Hampton
Page 109 1 THE COURT REPORTER: On the record? 2 MS. ROSS: Yeah, on the record. Let's stay 3 on the record. 4 You can go -- you got it? 5 THE VIDEOGRAPHER: Yeah. 6 MS. ROSS: Okay. My understanding of the 7 Madison County standing order -- I think it's a 8 standing order -- and also the Illinois rules 9 generally is that there's a three-hour time limit on 10 depositions, and I don't think we've quite hit it 11 there. I mean, we acknowledge we started, you know, 12 a little after 9:30 and we've taken some breaks, but 13 I do want to point out that you are getting close to 14 that, so - 15 MR. HAMPTON: I'll do my best to move it 16 along. 17 MS. ROSS: Yeah. 18 THE VIDEOGRAPHER: This marks the end of 19 tape No. 3. We're off the record. The time is 20 12:33 p.m. 21 (WHEREUPON, a recess was taken.) 22 the VIDEOGRAPHER: We're back on the record 23 at the beginning of tape No. 4. The time is 24 12:43 p.m.
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Examination by Mr. Hampton
Page 110 1 MR. HAMPTON: I have a document titled 2 "NIOSH Revised Recommended Asbestos Standard, 3 U.S. Department of Health, Education and Welfare," 4 dated December 1976. Mark that as Exhibit 15. 5 (WHEREUPON, a certain document was marked 6 Plaintiffs' Deposition Exhibit No. 15 for 7 identification as of 07/18/2013.) 8 MS. ROSS: I will say I -- you're welcome 9 to show it to him and ask him questions. I will 10 object to asking him to read anything aloud from 11 this. 12 This is not a -- other -- unlike the other 13 documents that he was reading from or the 14 interrogatory responses that he verified -- those are 15 company documents that, you know, I think you have a 16 right to ask our corporate witness to read from -- I 17 don't think you have a right to put the words of 18 NIOSH in his mouth when it's not a document that we 19 authored or that came from our files. But you can - 20 I'm not going to stop you to asking questions, and he 21 can answer to the extent he knows about them. 22 See, everything -- this is not the whole 23 document. You only have selected pages from it. 24 MR. HAMPTON: What -- are you instructing
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Examination by Mr. Hampton
1 him not to read their --
Page 111
2 MS. ROSS: No, no, no, no. But I'm just
3 saying this is -- what you've marked as the exhibit
4 is not the entirety of the document.
5 MR. HAMPTON: That's probably true.
6 MS. ROSS: Yes.
7 MR. HAMPTON: It's probably 100 pages.
8 MS. ROSS: Yeah, I know, because it --
9 MR. HAMPTON: Yeah.
10 MS. ROSS: -- skips from Page --
11 MR. HAMPTON: Right.
12 MS. ROSS: -- 2 to 92 --
13 MR. HAMPTON: Right.
14 MS. ROSS: -- in here. So I know and I've
15 seen the whole document.
16 MR. HAMPTON: Darn airplane --
17 MS. ROSS: No, I'm not --
18 MR. HAMPTON: -- flight got me again.
19 MS. ROSS: He can -- he can look at it, but
20 I will instruct him -- if you say, "Mr. Kotzum,
21 please read the highlighted portion" --
22 MR. HAMPTON: Right.
23 MS. ROSS: -- I will instruct him not to do
24 that.
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Examination by Mr. Hampton
1 MR. HAMPTON: Okay.
Page 112
2 MS. ROSS: I don't think that's an
3 appropriate question of a corporate witness, with a
4 document that has not come in from in the 5 corporate -
6 MR. HAMPTON: Okay. So based on counsel's 7 statement that she will instruct him not to read, we 8 will ask questions.
9 Now you're going to make me work.
10 BY MR. HAMPTON:
11 Q. Mr. Kotzum, I'm going to ask you about the
12 NIOSH document that we just discussed. Though I'm 13 not asking you to read from the document, I'd like 14 you to look at that document and the pages that have
15 been marked and highlighted.
16 A. Okay. 17 Q. Okay. Thank you.
18 Mr. Kotzum, I've just asked you to look at 19 a NIOSH document dated 1976. In that document, I
20 referred you to a section that talks about the 21 permissible exposure limits and the threshold limit
22 values and what that means, and NIOSH's opinion on 23 that is that there's no -- that if you meet the 24 permissible exposure limit, it is not a certain level
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 113 1 that would prevent asbestosis and would not prevent 2 asbestos-induced neoplasms. 3 My question, sir, is that something that 4 BWDAC kept abreast of as far as the -- NIOSH's 5 opinions when they were in business? 6 MS. ROSS: I'm going to object to the form. 7 It's a 1976 document, and BWD wasn't even in business 8 at that time. 9 But you can answer it. 10 BY MR. HAMPTON: 11 Q. When they went in business in 1981, would 12 they have that kind of information? 13 A. I'm not sure. 14 Q. And we talkedabout earlier,when they came 15 in -- when they took over from Borg-Warner, theytook 16 over a fully operational unit that was -- I think we 17 called it business as usual. Is that a fair 18 assessment? 19 A. Yes. 20 Q. And at the time in 1981, when they started 21 their business, they were fully aware of the hazards 22 related to asbestos and injury; is that correct? 23 A. Again, I -- I'm not sure, but they probably 24 were.
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Examination by Mr. Hampton
Page 114 1 Q. Okay. And it's been noted in several of 2 your answers to interrogatories that, yes, they were 3 fully aware of the medical and scientific literature 4 and the hazards related to asbestos; is that your 5 understanding? 6 A. Yes. 7 Q. And this next document is a NIOSH, 8 U.S. Department of Health and Human Services, 9 "Workplace Exposure to Asbestos," dated November 10 1980. We'll mark that as Exhibit -11 MS. ROSS: 16? 12 MR. HAMPTON: -- 16. 13 MS. ROSS: And that's 1980? 14 MR. HAMPTON: Correct. 15 (WHEREUPON, a certain document was marked 16 Plaintiffs' Deposition Exhibit No. 16 for 17 identification as of 07/18/2013.) 18 MR. HAMPTON: Sir, I've got -- would you 19 like to look at this document? 20 MS. ROSS: Yes, sorry. Thank you. 21 MR. HAMPTON: Just the top page? 22 MS. ROSS: Yeah. 23 BY MR . HAMPTON: 24 Q. Mr. Kotzum, I'm handing you Document 16.
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Examination by Mr. Hampton
1 Please take a look at the tabbed page.
Page 115
2 A. Okay. 3 Q. And in 1980, on Page 3, NIOSH has an
4 opinion. It talks about, "Evaluation of all 5 available human data provides no evidence for a
6 threshold or for a 'safe' level of asbestos exposure. 7 Accordingly, the committee recommends that, to the 8 extent uses of asbestos cannot be eliminated or less 9 toxic materials substituted for asbestos, worker
10 exposures to asbestos must be controlled to the
11 maximum extent possible." 12 Is that something that BWD tried to do when
13 they came into business in 1981? 14 MS. ROSS: I'm sorry, I'm going to object
15 as vague as to what it is that -- well, I will object
16 to the form as vague. I will not give a speaking 17 objection.
18 MR. HAMPTON: Thank you.
19 MS. ROSS: You're welcome. 20 BY MR. HAMPTON:
21 Q. You can answer.
22 A. Yeah. Again, you know, I'm not sure. But
23 again, we were aware of the asbestos issue, and I'm 24 sure we did everything we could to, you know, not --
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Examination by Mr. Hampton
1 reduce exposure levels as much as we could.
Page 116
2 Q. Okay. And as NIOSH talks about, the
3 evaluation talks about no evidence of a threshold or
4 safe level of asbestos exposure. Is that something
5 that BA -- BWDAC is familiar with or that you saw in
6 that organization?
7 A. That I'm not sure of either. I know all of 8 the reports that I looked at and we reviewed 9 compared, you know, to what the acceptable limits 10 were, even though this article is saying there
11 shouldn't be, I guess, an acceptable limit. 12 Q. The next document is EPA, titled "Guidance
13 for Preventing Asbestos Disease Among Auto
14 Mechanics." 15 Mark that as Exhibit 17.
16 MS. ROSS: What's the date on that one?
17 MR. HAMPTON: June of 1986. 18 MS. ROSS: Thank you. 19 (WHEREUPON, a certain document was marked
20 Plaintiffs' Deposition Exhibit No. 17 for
21 identification as of 07/18/2013.)
22 BY MR. HAMPTON:
23 Q. Mr. Kotzum, I'd like you to take a look at 24 the document, and look at the highlighted portions,
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Page 117 1 and I'll have a few questions for you. Thank you. 2 Mr. Kotzum, have you or BWD ever seen or 3 reviewed that document, to your knowledge? 4 A. I haven't, no, and I don't believe BWD -5 I'm not - - I don't know. I can't answer to that. 6 When I see it relates to auto mechanics, it's 7 possible they did. 8 Q. As -- do you as BWD's corporate 9 representative, do you disagree with the highlighted 10 portions that you just reviewed? 11 A. I can't see anything I disagree with. 12 Q. So it states that, "Millions of asbestos 13 fibers can be released during brake and clutch 14 servicing," under the "Mechanics' Exposure to 15 Asbestos. " Do you agree with that? 16 MS. ROSS: I'm going to object on 17 foundational grounds. 18 MR. HAMPTON: I'm just asking if he agrees 19 with the statement or not. 20 MS. ROSS: I -- I'm -- I'm going to object 21 as to whether -- whether or not he even has a 22 foundation to agree or disagree with that, but -23 BY THE WITNESS: 24 A. Yeah. It's sort of like being in a smoking
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Examination by Mr. Hampton
1 area, I guess, yeah. 2 BY MR. HAMPTON:
Page 118
3 Q. And they also state, "While lowering
4 exposure lowers risk, there is no known level of
5 exposure to asbestos below which health effects do
6 not occur."
7 Do you -- other than the NIOSH documents I
8 showed you, is that something that you, BWDAC, has
9 considered and agree with or disagrees with?
10 MS. ROSS: And I'm going to object on
11 foundational grounds.
12 BY THE WITNESS: 13 A. Yeah. Again, I think we did everything we 14 could to, you know, protect the employees and make 15 sure that, you know, their work -- their health was
16 not at risk. 17 BY MR. HAMPTON:
18 Q. There is the next section that talks about
19 mesothelioma, and it says, "Mesothelioma can be
20 caused by very low exposures to asbestos. This
21 cancer has occurred among brake mechanics, their
22 wives and their children."
23 Is that something that you, BWAC, agree
24 with or disagree with?
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Page 119 1 MS. ROSS: I'm going to object on 2 foundational grounds. 3 BY THE WITNESS: 4 A. Yeah. I mean, that relates to brake 5 mechanics, but -- you know, again it's a -- it's a 6 general statement, you know. And again, I -- I 7 mentioned before that there's a general knowledge 8 about the hazards of asbestos that we were aware of. 9 BY MR. HAMPTON: 10 Q. Okay. But this specifically is talking 11 about mechanics, brake mechanics, in fact. 12 A. Uh-huh. 13 MS. ROSS: I'm going to object on 14 foundational grounds. BWD made clutches, not brakes. 15 MR. HAMPTON: I understand that. 16 BY THE WITNESS: 17 A. So, I mean, I don't know if I can say that 18 we -- we agree with it other than there was a hazard, 19 you know, a known hazard. 20 BY MR. HAMPTON: 21 Q. There's a section here that talks about 22 exposure during brake and clutch maintenance. It 23 says at the bottom of that paragraph that you just 24 reviewed, it says, "The asbestos fibers released from
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Examination by Mr. Hampton
Page 120 1 brake and clutch work can be scattered throughout a 2 garage, where they can present a hazard for months or 3 years." 4 Is that something that you or BWDAC has 5 considered? 6 A. Again, we were aware of the hazards of 7 asbestos. 8 Q. But this is talking about clutch work and 9 the individuals in the garage. So my question is, is 10 that something that you or BWDAC had considered? 11 MS. ROSS: I object. You can -- on 12 foundational grounds. You can answer if you know, 13 though. 14 BY THE WITNESS: 15 A. Well, I really don't know. But again, you 16 know, as we answered in the one response in the 17 interrogatory, that -- you know, when we monitored 18 the levels of the plant with -- with our -- with our 19 people that were associated with it on a regular 20 basis, you know, we feel that that would be adequate 21 if they weren't -- didn't have any health issues, 22 that the people that were using it periodically 23 shouldn't have any health issues, you know, that 24 would be greater than what we have in our own plan.
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Examination by Mr. Hampton
1 BY MR. HAMPTON:
Page 121
2 Q. And with this question, though, it talks
3 about those fibers being released and remaining there
4 for months or years.
5 A. Uh-huh. 6 Q. So my question is, is that something that 7 you, BWDAC, has considered, is the residual and the 8 asbestos remaining in these garages?
9 MS. ROSS: Same objection on foundational
10 grounds. 11
You can answer if you know.
12 BY THE WITNESS: 13 A. I don't know the answer to that. 14 BY MR. HAMPTON:
15 Q. Is that something you, BWDAC, agrees with
16 or disagrees with?
17 MS. ROSS: Again, same objection on
18 foundational grounds. If he doesn't know whether
19 they were even aware of it, and like he's got a
20 scientific background to agree or disagree with a
21 statement like that.
22 MR. HAMPTON: Nice speaking objection.
23 Let's try to keep them to form.
24
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Examination by Mr. Hampton
1 BY THE WITNESS:
Page 122
2 A. You know, again, we were aware of the
3 hazards, so that specific statement goes within all 4 of -- all of the hazards. I -- you know, if you want
5 me to say yes, I'll say yes. 6 MS. ROSS: You - 7 BY MR. HAMPTON:
8 Q. I don't want you to say anything other than
9 what -- other than what you, on behalf of BWDAC,
10 says, just to be clear.
11 A. Yeah. And I didn't mean that statement, by
12 the way.
13 But no, I guess -- you know, I don't know 14 the -- you know, the -- the best way to answer that
15 question. We were aware of all -- of everything, the 16 potential hazards. We monitor our plants, and I
17 guess simple logic would go forward on that
18 statement, you know. 19 Q. Let's go on to the next section. It talks 20 about clutch repair. It says, "Significant exposure 21 can also occur during clutch repair. Since a 22 mechanic's head is typically under the clutch
23 assembly during clutch repair, asbestos often falls
24 on a mechanic's face and clothing."
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Examination by Mr. Hampton
Page 123 1 Is that something that you agree with or 2 disagree with? 3 MS. ROSS: Again, objection on foundational 4 grounds. 5 BY THE WITNESS: 6 A. Again, it seems logical, a logical 7 statement, so I guess we'd say I agree with the 8 premise. 9 BY MR. HAMPTON: 10 Q. I've got a U.S. Department of Labor OSHA 11 document dated 5/13 of 1999, "OSHA's position on the 12 risk associated with asbestos exposure at the current 13 PEL." It will be Exhibit 18. 14 (WHEREUPON, a certain document was marked 15 Plaintiffs' Deposition Exhibit No. 18 for 16 identification as of 07/18/2013.) 17 BY MR. HAMPTON: 18 Q. Having reviewed that document, would you 19 agree that in 1995 it was still OSHA's position that 20 reducing the PEL to 0.1 fibers per cc level would 21 reduce but not eliminate the significant risk of 22 adverse health effects? 23 MS. ROSS: Is it 1995 or 1999? 24 MR. HAMPTON: I apologize. 1999.
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Examination by Mr. Hampton
1 MS. ROSS: Thank you. 2 MR. HAMPTON: Sorry.
Page 124
3 BY THE WITNESS:
4 A. Yes, I would agree with their statement . 5 BY MR. HAMPTON:
6 Q. We talked about NIOSH, we talked about 7 OSHA, we talked about EPA, and would you agree that 8 all of those agencies' opinions is that exposures to
9 a low level of asbestos dust is dangerous?
10 A. It seems -11 MR. HAMPTON: Object.
12 BY THE WITNESS:
13 A. -- very consistent. 14 MS. ROSS: I'm going to object to the form
15 as vague.
16 THE WITNESS: Okay. 17 MS. ROSS: Now you can answer.
18 BY THE WITNESS:
19
A. All their opinions seem very consistent ,
20 so --
21 BY MR. HAMPTON:
22 Q. And would you agree that all of those
23 agencies believe that there's no known safe level of
24 exposure to asbestos?
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Examination by Mr. Hampton
Page 125 1 MS. ROSS: I'm going to object to the form 2 as vague and also -- well, and on foundational 3 grounds. None of the documents you showed him 4 address that. 5 BY THE WITNESS: 6 A. Okay. Yes, and all the -- all of the 7 agencies do agree that we should have as low of 8 levels as possible. 9 BY MR. HAMPTON: 10 Q. And that there's no safe level -- known 11 safe level? 12 MS. ROSS: I'm going to object to the form. 13 Do you want to rephrase it or - 14 MR. HAMPTON: Yeah. 15 BY MR. HAMPTON: 16 Q. There's no known safe level of exposure -17 A. Right. 18 Q. -- to asbestos? 19 A. Yes. 20 Q. Is that correct? 21 A. Yes. 22 Q. Is -- in talking about this, no known safe 23 level of exposures, did you, BWDAC, ever pass that 24 along to end consumers?
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Page 126 1 MS. ROSS: I'm going to object to the form 2 as -- well, I'm going to object to the form as vague 3 and - 4 MR. HAMPTON: I'll try to correct it. 5 BY MR. HAMPTON: 6 Q. Did you -- did you, BWDAC, ever warn or 7 advise anybody you sold to that there was no known 8 safe level of exposure to asbestos, as the agencies 9 we just talked about described? 10 MS. ROSS: I'm going to object to the form 11 as vague. Some of those statements obviously 12 postdate any sale of product by the company. 13 But you can go -- you can answer the 14 question. 15 BY THE WITNESS: 16 A. Yeah. Well, we did have -- as in my prior 17 interrogatory responses, we had safety or warning 18 labels that we had put on our -- on our packages. 19 BY MR. HAMPTON: 20 Q. Did they ever discuss there's no known safe 21 level of exposure? 22 A. Well, not that I'm aware of in any -- on 23 the wording on the -- on the label. 24 Q. Did you ever talk to -- you, BWDAC, did you
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Examination by Mr. Hampton
Page 127 1 ever talk to any of your customers, the warehouse 2 companies that we addressed earlier, did you ever - 3 you, BWDAC, ever talk to them about no known safe 4 level of exposures? 5 A. I'm not -- I -- not that I'm aware of. I'm 6 not -- I don't know. 7 Q. Do you think that's something that the 8 customers and end users, the mechanics in the field, 9 is that information that they would like to have? 10 MS. ROSS: I'm going to just object on 11 foundational grounds and -- and actually, maybe it's 12 outside the scope of the notice. 13 But you can -- you can answer if you know. 14 BY THE WITNESS: 15 A. Again, I guess I go back to -- and again, 16 the factthat, you know, we controlled it in our 17 plants, and the fact that we really didn't have any 18 cases of workers' comp from the people that -- that 19 were working withit 40 hours a week. 20 MR. HAMPTON: I'll move to strike as 21 nonresponsive. 22 THE WITNESS: Okay. 23 BY MR. HAMPTON: 24 Q. The question, and I'll rephrase it, is
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Examination by Mr. Hampton
Page 128 1 don't you think your customers were entitled to know 2 that information -3 MS. ROSS: I'm going -4 BY MR. HAMPTON: 5 Q. -- that there's no known safe level of 6 exposure to asbestos? 7 MS. ROSS: I'm going to object on 8 foundational grounds and as outside the scope of the 9 notice. 10 BY THE WITNESS: 11 A. If we have the information, you know , I 12 think, yeah, we should pass it on to our customers. 13 And I think if we would have had that type of 14 knowledge, I'm sure, you know, we'd pass it on. 15 BY MR. HAMPTON: 16 Q. The knowledge we just talked about, the 17 NIOSH, the EPA, and the OSHA knowledge, that's the 18 kind of knowledge that -19 A. Well, right. 20 Q. -- BWDAC should have? 21 A. Right, and that's why by 1993 we weren't 22 producing asbestos clutches anymore. 23 Q. Okay. I'm switching gears. Okay. I'm 24 going to direct you to -- back to Exhibit 1.
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Examination by Mr. Hampton
Page 129 1 Interrogatory No. 63 asks about warnings, 2 and there's a response there where you address that: 3 "Beginning in 1986, clutches and clutch parts made 4 with asbestos-containing facings sold by Defendant, 5 were packaged in boxes that bore the following 6 label," then you talk about I believe two different 7 labels. 8 There was one from '86, and then a 9 different one in '87, so I want to talk about the 10 foundation of that briefly. 11 So I've got the March 20th, 1986 Echlin 12 document, subject matter asbestos warning labels, 13 that we'll mark as Exhibit 19. 14 (WHEREUPON, a certain document was marked 15 Plaintiffs' Deposition Exhibit No. 19 for 16 identification as of 07/18/2013.) 17 BY MR. HAMPTON: 18 Q. Mr. Kotzum, please familiarize yourself 19 with that document and read the highlighted portion. 20 A. Okay. Okay. It's an internal memo dated 21 March 20, 1986, to an R. Sturenfeldt from an 22 R. Foster, about asbestos warning labels. 23 "Attached is the asbestos warning label 24 currently used on our asbestos brake products. This
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Examination by Mr. Hampton
1 is the label discussed during our recent
Page 130
2 conversation. I believe the label could be easily
3 adapted to asbestos clutch products."
4 And then below there is a note dated 6/3 of
5 1986, on the bottom of the memo. I don't know who
6 wrote that. But it's handwritten, and it says, "EPE
7 and BWD (regardless of brand)," let's see, "should
8 begin to find --" or, "New packaging should begin to
9 find its way into the market sometime in the fall. 10 Currently, inventories of unlabeled packages will be 11 exhausted. " 12 Q. Thank you. And from that document, we know 13 that one of Echlin's other entities is already 14 putting warning labels on brake boxes; is that 15 correct?
16 A. Yes. 17 Q. And that up to this point, at least EPE and 18 BWD still have not yet placed warnings on their 19 boxes?
20 A. According to that, yes. 21 Q. Okay. Now, EPE, what is that? Is that 22 just another subsidiary or --
23 A. Yeah, that was another -24 Q. -- division of Echlin?
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Examination by Mr. Hampton
Page 131 1 A. That was another branded product. They
2 had -- when we were talking about that Corona plant,
3 they -- that was their plant initially, when -- when 4 it was purchased. 5 Q. What does "EPE" stand for?
6 A. European Parts Exchange. It's primarily
7 all imported parts they saw. 8 Q. And I think that we saw on some other
9 documents that there was -- they're not a part of
10 BWD, but they did exchange parts, they bought from 11 EPE? Did we see that in one of those other 12 documents?
13 A. Yes.
14
Q. I've got another document,same topic,
that
15 we will mark as Exhibit 20.
16 (WHEREUPON, a certain document was marked
17 Plaintiffs' Deposition Exhibit No. 20 for
18 identification as of 07/18/2013.)
19 BY MR. HAMPTON:
20 Q. Go ahead. Go ahead and take a look at it, 21 familiarize yourself with it and read the highlighted
22 portion.
23 A. Okay.
24
Q. Okay.Go ahead and
readthose portions.
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Examination by Mr. Hampton
Page 132
1 A. That's, again, an internal office memo, 2 subject asbestos regulations check list, from Barbara 3 Peterson to Bill Moreland and Troy Aimone, dated 4 August of 1986. 5 "For your information, I have attached a 6 copy of the check list for compliance with the new 7 asbestos regulations. 8 "As far as the labeling of the product - 9 that will have to be resolved as to whether we want 10 stickers on the product, or if the warning is going 11 to be on the box." 12 And then on the next page on this check 13 list, the last item highlighted is "Material Safety 14 Data Sheets," "In place," "MSDS established in spring
15 1986." 16 Then on the last page, it says, "Label must 17 be attached to product or to container. We will do 18 one or the other as soon as method resolved, and then 19 under "Comments," "Need to resolve soonest possible."
20 Q. Thank you. 21 Do you have any -- does BWDAC have any 22 documents that that was resolved in 1986?
23 A. Well, we know we were placing labels in 24 1986 on the box, so --
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Examination by Mr. Hampton
Page 133 1 Q. Okay. Well, this doesn't say that. This 2 just tells them they're putting a plan to do that. 3 A. Right. 4 Q. Correct? 5 A. Yes. 6 Q. Okay. My question was, is there -- is 7 there any other documents that I haven't seen that 8 show that a plan is in place or that they're placing 9 warning labels? 10 A. Not on any documents I've reviewed. 11 Q. Okay. Thank you. 12 Now, earlier we talked about sales 13 catalogs. Is that what we called them? 14 A. Yes. 15 Q. And I didn't see any warning labels in 16 those. Do you know if there are or are not warning 17 labels in those sales catalogs? 18 A. To my knowledge, I don't think there are. 19 Q. Okay. For any time period? I now only had 20 two there, but they go up through '91, I believe. 21 MS. ROSS: That sounds about -- I mean, 22 somewhere in there. 23 BY MR. HAMPTON: 24 Q. Okay. To your knowledge, do you know of
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Examination by Mr. Hampton
1 any warnings placed in your sales catalogs --
Page 134
2 A. No. 3 Q. -- at any time?
4 A. No. 5 Q. Before we mark this, I'm going to -- before 6 we mark this, I'm going to see if you've ever seen
7 that, if you're familiar with that. 8 A. Yes, I've seen it. I won't say that I'm 9 familiar with all the details on it. 10 MR. HAMPTON: Okay. Let's go ahead and 11 mark this. It is the BWD clutch service manual from 12 BWD Automotive Corporation.
13 The second page -- I thought I saw a date 14 on the second page. Yeah. 1988. It says, "BWD 15 Automotive Corporation by Mitchell International ." 16 If we can have that marked as Exhibit 21, please . 17 (WHEREUPON, a certain document was marked
18 Plaintiffs' Deposition Exhibit No. 21 for
19 identification as of 07/18/2013.)
20 BY MR. HAMPTON:
21 Q. And I'm not going to ask you to look for a 22 warning because I believe I found one in here, so
23 I'll try to mark it and show it to you, in the
24 interest of time.
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Examination by Mr. Hampton
Page 135 1 Are you familiar enough with this to know 2 about a potential or a -- if there's a warning in 3 here? 4 A. No, I'm not. 5 MR. HAMPTON: Let's go off the record. 6 THE VIDEOGRAPHER: We're off the record. 7 The time is 1:24 p.m. 8 (WHEREUPON, a recess was taken.) 9 THE VIDEOGRAPHER: We're back on the 10 record. The time is 1:26 p.m. 11 BY MR. HAMPTON: 12 Q. Mr. Kotzum, you've had the opportunity to 13 review Exhibit 21 and flip through the various pages, 14 and in this document consisting of, I don't know, 100 15 to 200 pages, we were talking about warnings, and we 16 found a warning in the clutches section under 17 "Chrysler Motors" on Section 2-3; is that correct? 18 A. Yes. 19 Q. Did you see warnings in any other section 20 of the document when you had the opportunity to flip 21 through it? 22 A. No. But I really went through it quick, 23 so - 24 Q. Okay. And take a look at that and the --
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Page 136 1 the front sections. Before you get into any of the 2 different automotive -- specific automotive brands, 3 there's no warning in those sections; is that 4 correct? 5 A. That's correct. 6 Q. And then it goes into individual brands of 7 cars, and as best you can tell, having looked at it 8 for just a short period of time, the only one that 9 had any kind of warning was under the Chrysler; is 10 that correct? 11 A. Yes. 12 Q. My question is, do you believe BWDAC did 13 everything they could to warn the end users and 14 mechanics about the hazards associated with asbestos? 15 A. Well, I do know that this was not prepared 16 by BWD. It was -- we bought it from Mitchell 17 Industries. They do these types of things. We just 18 put our names on them, you know. So - 19 Q. But BWDAC would have the final say on what 20 goes in that catalog? 21 A. That -- on this document here, I believe we 22 basically take it and buy it. They sell it one way, 23 and we just basically put our cover page and our - 24 Q. Then --
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Page 137 1 A. -- logo on -- on all of their things. 2 Q. I'll ask the question this way. In spite 3 of everything you just explained, do you believe 4 BWDAC did everything they can to warn the end users 5 of the hazards of asbestos? 6 MS. ROSS: I'm going to object to the form 7 as vague, but - 8 BY THE WITNESS: 9 A. Again, I go back to the fact that, you 10 know, we were monitoring our employees, hadn't had 11 any problems with it, and we moved to go to 12 nonasbestos as quickly as we could. 13 MR. HAMPTON: Okay. Well, I appreciate 14 that. I also move to strike. 15 BY MR. HAMPTON: 16 Q. Can you answer the question? 17 A. Based -- in looking at this -- this book 18 and not highlighting it, it doesn't look like we did 19 everything. 20 Q. What could -- what could you have done? 21 A. Well, I don't know. I guess put a warning 22 label on the -- on the service manual, like we did on 23 the clutch box. 24 Q. And while we're mentioning the employees
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Examination by Mr. Hampton
Page 138 1 and doing what you could to protect them and keep the 2 exposures low, did BWDAC consider the protections 3 that the end users would have as far as environmental 4 controls and policies in place, whether they did or 5 didn't have any? 6 MS. ROSS: Object on foundational grounds. 7 BY THE WITNESS: 8 A. I can't -- I -- I don't know. I don't know 9 if they thought that far out, figuring that, again, 10 we had people exposed in the plant 40 hours a week 11 versus somebody -- pick a number out of the air. If 12 they do one or two or three clutchjobs a month, 13 what's their total exposure? 14 BY MR. HAMPTON: 15 Q. And exposure without controls? I mean, we 16 all know that there's small garages around that may 17 not have local exhaust or engineering controls; is 18 that correct? 19 A. Probably, yes. 20 Q. And certain clutch jobs -- you may have 21 mechanics who may do one or two a day; isn't that 22 fair? 23 MS. ROSS: Object to the form as vague. 24 One or two what?
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Examination by Mr. Hampton
1 BY THE WITNESS:
Page 139
2 A. Yeah, I -
3 BY MR. HAMPTON:
4 Q. One or two clutch jobs a day.
5 A. Yeah. That -- that sounds high. I could
6 say one or two brake jobs a day, but I don't think
7 one or two clutch jobs a day. 8 Q. What -- what would you think? What could
9 a -- a clutch repair facility do in a week? What
10 could one mechanic do in a week? 11 A. Well, my thinking would, again, be if
12 they -- they do one a week on a clutch job, based 13 upon just -
14 Q. You're just picking averages? 15 A. Yeah, just thinking about where are rates, 16 how many things that -- that they do in a mechanic
17 shop back in the '80s and '90s. 18 Q. Fair to say some would do more and some 19 would do less? 20 A. Yes. 21 Q. We'll go back to Exhibit 1, the answers to 22 interrogatories, Interrogatory No. 79. If you'd like 23 to take a look at that question, 79. 24 A. Okay.
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Page 140 1 Q. Familiarize yourself with it and read the 2 highlighted portion, please. 3 A. Okay. You ready? 4 Interrogatory No. 79, "State the date on 5 which any official or Defendant -- any official of 6 Defendant or any predecessor or any related company 7 first had knowledge, notice, information or 8 understanding that exposure to asbestos would, could 9 or might cause each of the following diseases: 10 pleural disease, asbestosis, mesothelioma, lung 11 cancer, any other forms of cancer." 12 Our response, "Defendant as well as the 13 government, the medical and scientific community, and 14 all users, were well aware since at least 1981 (when 15 Defendant commenced business) of an association 16 between exposure of certain types of workers to high 17 levels of asbestos fiber, over long periods of time, 18 and the diseases asbestos, lung cancer, and 19 mesothelioma. Defendant is not aware of any credible 20 scientific or medical data that supports the 21 conclusion that the ordinary and foreseeable use of 22 the products sold by Defendant would cause these 23 diseases." 24 Q. Thank you.
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1 My question in part is based on that 2 response that says Defendant as well as the
Page 141
3 government, the medical and scientific community, and 4 all users , were well aware of the hazards since at 5 least 1981. 6 A. Okay. 7 Q. My question is as to the all users and as 8 to -- is it BWDAC's contention there that all users
9 of their products were aware of the hazards of
10 asbestos?
11 A. Yes. In that statement, yes. I just --
12 Q. What is -- your statement today on behalf
13 of BWDAC?
14
Yes, that -- you know, it was a general A.
15
that we felt everyone was aware of. knowledge
16 Q. Okay. And all users, every mechanic in the
17 country that did a clutch job?
18 A. Yes. Unless, I guess, they weren't paying
19 attention to the news or what was --
20 Q. That's likely that --
21 A. -- going on at the time. 22 Q. That's likely there was --
23 A. Right. 24 Q. -- quite a few people not paying attention
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1 to the news, correct?
Page 142
2 MS. ROSS: I'm going to object to the form
3 on foundation grounds.
4 BY THE WITNESS: 5 A. It's possible. 6 BY MR. HAMPTON:
7 Q. And this is -- refers to 1981, and when did
8 your company -- when do you contend that your company
9 started to warn, again?
10 A. 1986. 11 Q. Okay. The other question I have has to do
12 with your response that says, "Defendant is not aware
13 of any credible scientific or medical data that
14 supports the conclusion that the ordinary and
15 foreseeable use of the products sold by Defendant
16 could cause these diseases." 17 We've talked about NIOSH, we've talked
18 about OSHA, and we've talked about EPA. Now, those
19 are -- I would think those would be credible agencies
20 who have done a lot of scientific research. Would 21 you agree with that?
22 MS. ROSS: I'm going to object on
23 foundational grounds. 24
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1 BY THE WITNESS:
Page 143
2 A. Yes, they should -- they should be. Yeah. 3 BY MR. HAMPTON:
4 Q. And having said that, do you agree with 5 that statement as answer to these interrogatories?
6 MS. ROSS: I'm going to object on -- well, 7 I'm going to object on foundational grounds. I don't 8 think you've shown him a single document that's
9 contrary to that. 10 MR. HAMPTON: Well, nice speaking 11 objection. Please keep it to form. 12 BY MR. HAMPTON: 13 Q. Can you answer the question as asked?
14 A. I don't think there was any specific - 15 other than making people aware of the -- the asbestos 16 dangers, there was no specific reports that ever said 17 people exposed to these levels for this specific 18 period of time, we have so many people that had
19 contracted that, that I saw. 20 So I think that's what that statement 21 generally said, was, you know, that there's nothing 22 we have other than the general knowledge that -- that 23 it's not -- you know, that it's hazardous to your 24 health.
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Examination by Mr. Hampton
Page 144 1 Q. Do you agree that the consumers and the 2 customers of your products need -- need this 3 information to make a choice on how to work with your 4 products? 5 MS. ROSS: Objection, both foundation and 6 beyond the scope of the witness. 7 BY THE WITNESS: 8 A. Okay. Well, obviously we felt in 1986 and 9 going forward that we should place warnings on the 10 products because they needed that kind of information 11 and that, going further, getting out of asbestos 12 eventually. 13 BY MR. HAMPTON: 14 Q. And you believe they have that information, 15 and if -- if they have that information, it's up to 16 them, freedom of choice, they can make the choice on 17 how to handle your products? 18 MS. ROSS: Same objections as before. 19 BY THE WITNESS: 20 A. Yeah, that's - 21 BY MR. HAMPTON: 22 Q. I mean, that's - 23 A. That - 24 Q. Is that the reason why you put the warning
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 145 1 out there, so they have a choice, so they can take 2 that information and make a choice? 3 MS. ROSS: Same objection as before. 4 BY THE WITNESS: 5 A. Yeah. Again, I think, you know, we were 6 trying to do the right thing for both our employees 7 and our customers based on the information we had at 8 the time. 9 THE VIDEOGRAPHER: Five minutes, counsel. 10 BY MR. HAMPTON: 11 Q. Do you agree that BWDAC had a safety 12 responsibility to its customers? 13 A. To employees and customers, yes. 14 Q. Do you think that a company like BWDAC has 15 a responsibility to test potential hazards of its 16 products? 17 MS. ROSS: I'm going to object that it's 18 vague and also on foundational grounds, and it's 19 calling for a legal opinion. 20 BY THE WITNESS: 21 A. And that's a tough question. Yeah, I -- I 22 think anybody -- I mean, if you go back to the 23 asbestos, would anybody have ever used it if they had 24 really known about all these hazards that we found
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 out later, probably not. 2 BY MR. HAMPTON:
Page 146
3 Q. Do you believe that a company should pass 4 on any warnings that it receives from its supplier?
5 MS. ROSS: Again, object on foundational
6 grounds, and it's also calling for a legal
7 conclusion. 8 BY MR. HAMPTON: 9 Q. Well, we'll make -- go ahead. It's an 10 objection. 11 A. Well, yeah. And again, I -- yes, I believe 12 any information they have should go on trying to do 13 the right thing. 14 Q. Do you think that a company should 15 substitute a hazardous material in its product for an 16 equally functional nonhazardous material?
17 MS. ROSS: I'm going to object to the form
18 as vague on foundational grounds, and again as
19 calling for a legal conclusion. 20 BY THE WITNESS: 21 A. Yeah. Well, I think that's what we were 22 trying to do, is substitute a nonhazardous
23 component -- nonhazardous component for a hazardous 24 one as we went forward with the product.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
1 BY MR. HAMPTON:
Page 147
2 Q. Do you think that a company should ever
3 sacrifice safety to make more profit?
4 MS. ROSS: I'm going to object as vague.
5 BY THE WITNESS:
6 A. No, they -- they -- they shouldn't. And
7 I -- I can tell you personally and with the whole
8 philosophy of the company it was, again, employees
9 and safety and then profits next.
10 BY MR. HAMPTON: 11 Q. Other than the -- the documents we've
12 talked about today, specifically the BWDAC documents
13 that we marked as exhibits, are there any other BWDAC 14 documents out there that, to your knowledge, haven't 15 been produced to me? 16 A. To my knowledge, no.
17 Q. Okay. Do you know if there's any 18 privileged or confidential documents that we've asked 19 for that have not been produced to us? 20 A. Not that I'm aware of. 21 Q. Okay. 22 THE VIDEOGRAPHER: Two minutes, counsel. 23 BY MR. HAMPTON: 24 Q. The documents we've talked about, all the
PohlmanUSA Court Reporting (877) 421-0099
Examination by Mr. Hampton
Page 148 1 ones with the BWDAC Bates stamp, or BWD and then a 2 number, do you have any question about any of those 3 documents? 4 Are all those documents authentic and from 5 BWD's repository? 6 A. They appear that way, yes. 7 Q. Okay. That stuff, those documents, you 8 would have kept in the normal course of business? 9 A. Right. The ones that had our numbers on 10 them, yes. 11 MR. HAMPTON: Okay. Thank you. Let's go 12 off the record and take a short break. 13 THE VIDEOGRAPHER: We're off the record. 14 The time is 1:44 p.m. 15 (WHEREUPON, a recess was taken.) 16 THE VIDEOGRAPHER: We're - 17 MR. HAMPTON: Okay. We're going on the 18 record here in the room, and we've got BWDAC's 19 attorney is going to go, and then we'll check on the 20 phone for anybody else that might have a few 21 questions. 22 THE VIDEOGRAPHER: We're back on the record 23 at the beginning of tape No. 5. The time is 24 1:52 p.m.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Ms. Ross
1 2 BY MS. ROSS:
EXAMINATION
Page 149
3 Q. Mr. -- Mr. Kotzum, we spent a lot of time
4 today talking about Exhibit 1, these interrogatory 5 responses. When was the first time you assisted BWD 6 in connection with putting together responses to 7 discovery in asbestos litigation?
8 A. 1999 or 2000. 9 Q. And did you have a better memory of what
10 the company did at that point than you do today?
11 A. Yes. 12 Q. And the information that you provided, was
13 that incorporated into discovery responses back in
14 the late '90s or early 2000s?
15 A. Yes. 16 Q. And has that information been used -- or is 17 the information that was used in those earlier
18 discovery responses, is some of that in this set that 19 we looked at from 2013, Exhibit 1?
20 A. Yes, it is. 21 Q. One of the -- we looked at today a number
22 of studies of asbestos exposure in the Ottawa plant. 23 Do you remember that?
24 A. Yes.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Ms. Ross
Page 150 1 Q. And one of the ones that we looked at -- it 2 was Exhibit 14 -- was from 1995, and it involved some 3 samples of someone working in the core prep area and 4 someone who was working as a driller. As a driller. 5 What -- where in the plant did the core 6 prep person work? 7 A. That was back at the receiving dock. 8 Q. And -- and what happened at the receiving 9 dock? 10 A. When the cores came back from the customer, 11 they would come back in on skids, or sometimes 12 containers, and they would be sorted out so that we 13 could checkthem in and issue credit to the customer 14 and then sort them out according to types of clutches 15 for rebuilding. 16 Q. And since I don't think we actually got 17 into this earlier, what is a core, when we're talking 18 about a clutch? 19 A. That is the actual component, either a 20 cover or a driven plate that is -- that is rebuilt. 21 Q. And so it's something that has been used 22 already? 23 A. Yes. 24 Q. And were the cores that came back to the
PohlmanUSA Court Reporting (877) 421-0099
Examination by Ms. Ross
Page 151 1 BWDAC plant in Ottawa only clutches that had been 2 remanufactured or sold by BWDAC? 3 A. No. 4 Q. Now, the -- the June -- or January 1995 5 report, Exhibit 14, also had sample results for 6 the -- someone who worked as a driller. What did the 7 driller do in the Ottawa plant? 8 A. Mostly, he would drill out the rivets on 9 the -- on the driven plates, sometimes on the cover 10 assemblies. 11 Q. And so was he working with the old 12 materials or was he working on the manufacture of the 13 new clutches, the driller? 14 A. On -- on the old ones. 15 Q. And in 1995, was BWDAC selling any 16 asbestos-containing clutches? 17 A. Not that I'm aware of. 18 Q. Okay. And you talked about this sort of 19 generally, but I just want to make sure we have a 20 clear question and answer. 21 How does the job of a worker in the Ottawa 22 plant, manufacturing or remanufacturing clutches or 23 handling these cores, compare to a mechanic 24 installing a new clutch with respect to the potential
PohlmanUSA Court Reporting (877) 421-0099
Examination by Ms. Ross
1 for asbestos exposure?
Page 152
A. Well -
MR. HAMPTON: Objection, form.
BY THE WITNESS:
A. Again, as I had stated, our employees were
around the product basically 40 hours a week,
where -- where an installer would naturally only
handle that product when they were installing the
clutch.
10 BY MS. ROSS: 11 Q. Have you ever installed a clutch?
12 A. Yes. 13 Q. How long did it take to install the new 14 clutch, if you remember? 15 A. It's hard to remember, and I was very slow. 16 Q. Okay. Well, when did you install a new
17 clutch? 18 A. Back in the '60s. 19 Q. Okay. I'll skip over that. 20 Mr. Hampton also showed to you and read to 21 you from a couple of different documents from NIOSH. 22 They were marked as Exhibits 15 and 16. Do you
23 recall that? 24 A. Yes.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Ms. Ross
1 Q. And those documents contained some 2 recommendations from NIOSH regarding asbestos
Page 153
3 exposure levels. Do you recall that? 4 A. Yes. 5 Q. Do you know if those NIOSH recommendations 6 were ever adopted by OSHA?
7 A. I don't know. 8 Q. And as far as you know, however, OSHA
9 adopted permissible levels for exposure to asbestos?
10 A. Yes. 11 Q. And did BWC try to comply with those OSHA 12 levels in its own plant? 13 A. Yes. 14 Q. Those NIOSH documents, and then Mr. Hampton
15 also showed you some EPA document and some OSHA
16 documents, some of which had language in there about
17 no known safe level of asbestos exposure. Do you 18 recall that?
19 A. Yes. 20 Q. Were the documents that Mr. Hampton showed
21 you out of BWDAC's files? 22 A. No. 23 Q. And as far as you know, were the documents
24 that he showed you public documents?
PohlmanUSA Court Reporting (877) 421-0099
Examination by Ms. Ross
1 A. Probably, yes.
Page 154
2 Q. As far as you know, would they have been
3 available to anyone who cared to find out what OSHA
4 or EPA or NIOSH had to say about asbestos exposure?
5 A. Yes. 6 Q. And so, for example, a warehouse
7 distributor to whom you sold clutches would have had
8 access to the EPA and NIOSH and OSHA documents?
9 A. I assume so, yes. 10 Q. Okay. When you -- you worked -- well,
11 where did you -- where was your office physically
12 located in -- in the 1980s?
13 A. In Franklin Park, Illinois. 14 Q. And were there boxes of clutches stored at
15 Franklin Park? Was there -- well, let me strike
16 that.
17 Was there a warehouse in Franklin Park?
18 A. Yes. 19 Q. And did you ever see clutch boxes in the 20 Franklin Park facility?
21 A. Yes. 22 Q. And do you recall seeing clutch boxes with
23 warning labels on them in the Franklin Park facility?
24 A. In the late '80s, yes.
PohlmanUSA Court Reporting (877) 421-0099
Examination by Ms. Ross
Page 155 1 Q. Okay. Mr. Hampton also asked you if BWC -2 if you believe or -- that BWDAC did everything they 3 could to warn. Do you recall that question? 4 A. Yes. 5 Q. Okay. You said BWDAC put warning labels on 6 the boxes, right? 7 A. Yes. 8 Q. Would someone who is doing a clutch job see 9 the clutch box? 10 A. They should. 11 Q. And if they were opening up a clutch box, 12 would they see the warning label? 13 A. Yes. 14 Q. And starting sometime in '86, would that 15 warning label have been on all of the BWD boxes of 16 asbestos-containing clutches? 17 A. It should have been, yes. 18 Q. Finally, Mr. Kotzum, do you have any 19 medical training? 20 A. No. 21 Q. And do you have any training in industrial 22 hygiene? 23 A. No. 24 Q. Did you participate in all of the -- at BWC
PohlmanUSA Court Reporting (877) 421-0099
Examination by Ms. Ross
Page 156 1 in connection with decisions about the warning labels 2 and what language ought to be included in those 3 labels or what else ought to be done to warn 4 customers? 5 A. No, I didn't. 6 Q. Do you believe that the -- well, do you 7 know who was involved in -- in those efforts? 8 A. I'm not sure. 9 Q. Do you believe that Barbara Peterson may 10 have been involved? 11 A. I'm not sure. 12 MS. ROSS: Okay. Those are all the 13 questions that I have. 14 MR. HAMPTON: Anybody on the telephone? 15 This is Shane. 16 Don, I know you're out there. You got 17 anything? 18 MR. WARD: No, I don't have anything. 19 MR. HAMPTON: Okay. I don't have any 20 followup either, so I think that will conclude this 21 for today . 22 MS. ROSS: Yeah. Mr. Kotzum will review 23 and make corrections and sign, so we reserve that 24 right.
PohlmanUSA Court Reporting (877) 421-0099
Page 157 1 THE VIDEOGRAPHER: This marks the end of 2 tape No. 5 and concludes today's deposition of 3 William Kotzum. We're off the record. The time is 4 2:01 p.m. 5 (WHEREUPON, signature was reserved and the 6 proceedings were concluded at 2:01 p.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
PohlmanUSA Court Reporting (877) 421-0099
Page 158
1 IN THE CIRCUIT COURT THIRD JUDICIAL CIRCUIT
2 MADISON COUNTY, ILLINOIS
3 IN RE: ALL ASBESTOS
)
LITIGATION FILED BY
)
4 SIMMONS, BROWDER,
)
GIANARIS, ANGELIDES &
)
5 BARNERD, LLC,
)
)
6
Plaintiffs,
)
7 -vs-
) )
8 BWDAC, INC.,
) )
)
9
Defendant.
)
10 I hereby certify that I have read the
11 foregoing transcript of my deposition given at the 12 time and place aforesaid, consisting of Pages 1 to
13 158, inclusive, and I do again subscribe and make
14 oath that the same is a true, correct and complete
15 transcript of my deposition so given as aforesaid,
16 and includes changes, if any, so made by me. 17
18 19 SUBSCRIBED AND SWORN TO
WILLIAM KOTZUM
20 before me this 21 of
day , A.D. 20 .
22
23
24 Notary Public
PohlmanUSA Court Reporting (877) 421-0099
1 STATE OF ILLINOIS )
2 ) SS:
3 COUNTY OF COOK 4
)
Page 159
5 I, MARIA ELENA GOLDEN, a Certified 6 Shorthand Reporter and Notary Public within and for 7 the County of Cook, State of Illinois, and a 8 Registered Professional Reporter, do hereby 9 certify:
10 That previous to the commencement of the 11 examination of the witness herein, the witness was
12 duly sworn to testify the whole truth concerning the 13 matters herein;
14 That the foregoing deposition
15 transcript was reported stenographically by me, 16 was thereafter transcribed under my personal direction 17 and constitutes a true, complete and correct record 18 of the testimony given and the proceedings had;
19 That the said deposition was taken before me 20 at the time and at the place so specified;
21 That I am not a relative or employee or
22 attorney or counsel, nor a relative or employee of
23 such attorney or counsel for any of the parties 24 hereto, nor interested directly or indirectly in the
PohlmanUSA Court Reporting (877) 421-0099
1 outcome of this action.
Page 160
2 IN WITNESS WHEREOF, I do hereunto set my
3 hand of office at Chicago, Illinois, this 29th day of
4 July A.D. 2013.
5
6
7 MARIA ELENA GOLDEN, CSR, RPR
8 Illinois CSR License No. 84-3705 Notary Public, Cook County, Illinois
9 My commission expires 02/02/17
10
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40:11 47:24 48:18 65:17 105:2 94 3:5 95 105:8 96 3:6 70:3 98 16:5,22,24 17:12 70:3 99 3:8,20
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