Document N24kNJvED9nKDp6zd6m482xny

FILE NAME: Engelhard (ENG) DATE: 2012 June DOC#: ENG107 DOCUMENT DESCRIPTION: Legal - Testimony of Plaintiff Expert John Templin 03:49 5627995531 MAS PAGE 1 STEPHEN M, TIGERMAN (State Bar No. 112127) tigeman@Mawoffices.com 2 MIA M AITIS (State Bar No. 191027) 3 mattis@htlawoliices.com LISA BROKAW (State Bar No. 247422) 4 brokaw@htlawoffices.com HAROWITZ & TIGERMAN, LLP 5 450 Sansome St., 3rdFloor San Francisco. CA 94111 6 Tel: (415) 788-1588; Fax (415) 788-1598 7 Attorneys for Plaintiffs 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO - UNLIMITED JURISDICTION 11 12 THOMAS RUBINO, Individually and as ) Case No.: CGC-08-274556 Successor-in-Intercst to CARMINE RUBINO, ) DECLARATION OF JOHN TEMPLIN IN 13 JR., Decedent; DANIEL RUBINO; and DOES ) SUPPORT OF PLAINTIFFS' ONE through TEN, inclusive, ) 14 ) OPPOSITION TO DEFENDANT BASF Plaintiffs, ) CORPORATION'S MOTION FOR 15 ) SUMMARY JUDGMENT AND/OR vs. \ ADJUDICATION 16 AC and S, INC., et al, j 17 Defendants. ) 18 ) ) 19 __________ _ _ _ __________________ ) 20 21 I, John Templin, declare as follows: 22 1. I am a resident of the state o f California, Except for matters which I have relied 23 on and which have been made known to roe for purposes o f forming an opinion, all matters 24 stated herein are of my own personal knowledge. The matters made known to me are of the type 25 upon which professionals in my field reasonably rely in rendering such opinions as stated in this 26 declaration. If asked, I could and would competently testify to the truth of each matter and 27 opinion asserted within as well as to the further foundation for each such matter and opinion. 28 dec.Jphn,Tempiin.final 1 DECLARATION OF JOHN TEMPLIN 03:49 5627995531 MAS FASE 1 2. I have a bachelor's degree in biochemistry and a master's degree in industrial 2 hygiene, both awarded by the University of Pittsburgh in 1976 and 1980 respectively. My 3 graduate studies in industrial hygiene included but were not limited to M l semester courses in 4 toxicology, epidemiology, biostatistics, aerosol physics, air pollution and occupational medicine. 5 I have been continuously certified in the comprehensive practice o f industrial hygiene by (he 6 American Board of Industrial Hygiene since 1985. I have been continually certified by the State 7 of California Division of Occupational Safety and Health as an asbestos consultant since 1992, 8 which was the first year it became available. I am a member of the American Industrial Hygiene 9 Association and have served as chair of its law committee. 1have practiced extensively in the 10 field of industrial hygiene since 1980. By virtue of my education, training and experience, I 11 have become well acquainted with asbestos, the properties o f asbestos, and the diseases caused 12 by asbestos, including mesothelioma. 13 3. My work experience spans academia, government and private industry. From 14 1980-1982,1 was engaged os an industrial hygienist and project manager for the University of 15 Houston's OSHA "New Directions" program, From 1982-1986,1 served as an associate 16 industrial hygienist for Cal/OSHA. My duties there consisted of performing workplace 17 evaluations to identify potential occupational health hazards, conduct employee training 18 programs, and assist employers in understanding and complying with Cal/OSHA. An essential 19 component of these duties was to gain a thorough understanding of the regulations in question, 20 including but not limited to analyzing and evaluating the enabling legislation (i.e. Senate or 21 Assembly bills); and the ensuing changes in the State codes affected thereby (e.g. Labor, Health 22 and Safety, etc.), as opposed to merely acquainting myself with the content of the Code of 23 Regulations. 24 4. From 1986-1987,1was the Director o f Asbestos-Related Services and Chief 25 Industrial Hygienist for CTL Environmental Services, Tnc. My responsibilities included program 26 development, e.g., operations and maintenance, respiratory protection, and employee training. 27 From 1987-2002,1was a Certified Industrial Hygienist, Principal Scientist and Corporate 28 Consultant at Law/Crandall. In 2002, Tjoined Materials Analytical Services (MAS), where I dec.John.Templia.fmaI 2 DECLARATION OF JOHN TEMPLTN 03:49 5627995531 MAS PAGE 1 apply my knowledge of asbestos-containing materials and industrial hygiene as Senior 2 Consultant. 3 5. During the years I have dealt with asbestos-related issues. I have performed 4 surveys, hazard assessments, project monitoring and reporting, and employee training with 5 regard to asbestos, and have prepared recommendations for control alternatives, removal 6 specifications and operations and maintenance programs for numerous clients, including Hines 7 Interests Limited Partnership, State of California, Universal Studios, Inc., Dodger Stadium, Shell 8 Oil Company, Santa Fe Realty. City of Burbank, and Bakersfield City Schools. I have also 9 devised procedures for performing spot removal of asbestos-containing fireproofing to be 10 utilized in conjunction with the installation of fire sprinkler systems in high rise buildings, as 11 mandated by Los Angeles City Ordinance. 12 6. I have presented over three hundred seminars to employers and employee groups, 13 trade, professional, labor organizations, and regulatory agency personnel covering a wide variety 14 of issues, including asbestos. I have specialized training from the University of Southern 15 California, Institute of Safety and Systems Management in sampling and evaluating airborne 16 asbestos dust. 17 7. As a consultant, I have advised hundreds of public and private building owners 18 (litigation and non-litigation) regarding asbestos on or at their properties. I have also consulted 19 with multiple asbestos product users and insurance companies regarding asbestos related issues. 20 I have provided expert testimony in numerous asbestos property damage and personal injury 21 cases in state court. My expert qualifications and training are set forth more fully in die attached 22 curriculum vitae, which is incorporated by referenee-and attached hereto as Exhibit A. 23 8. I have participated in demonstrations, reviewed experiments and data and 24 performed tests in which, asbestos-containing materials and/or asbestos containing residue were 25 disturbed during routine work operations and activities which resulted in the potential for release 26 o f significant concentrations of airborne asbestos-containing dust. Measurements were made of 2 7 either airborne and/or surface asbestos dust released during such operations. Such tests have 28 demonstrated that significant numbers of asbestos fibers are released when work operations and decJohn.Templin.fina] 3 DECLARATION OF JOHN TEMPLIN 03: 49 5627995531 MAS PAGE 1 activities are undertaken with or around asbestos-containing materials. The release of asbestos 2 fibers into the environment results in elevated airborne asbestos concentrations for some time 3 and leads to the deposition of asbestos onto nearby surfaces. Such tests also indicate that 4 workers engaged in the normal use o f these asbestos-containing products in most cases are 5 exposed to elevated concentrations of airborne asbestos. There is evidence that asbestos fibers in 6 "still" air can take days to settle, and even more if there is activity in the area that generates air 7 currents and/or which disturbs the dust. 8 9. I have reviewed the analyses of thousands o f asbestos samples of all types 9 including bulk samples, micro-vacuum samples, and air samples. 1 am familiar with and can 10 explain the methodology employed in analyzing each type of sample. 11 10. Industrial hygienists are often called upon to evaluate toxic and/or hazardous 12 exposures (including asbestos) retrospectively. When accidents or other toxic exposures occur, it 13 is rarely possible to do scientific measurements contemporaneously: therefore, industrial 14 hygienists are often required to use their scientific knowledge and training and discuss exposure 15 circumstances with workers and employers to estimate the nature and extent of toxic exposure. I 16 have testified in this area as an expert witness on numerous occasions. 17 11. I have for many years worked closely with Dr. William E, Longo, the President of 18 MAS for numeruus years. Dr. Longo received his Ph.D. in Material Science and Engineering at 19 the University o f Florida in 1983, and has over 25 years experience using a variety of electron 20 microscopy methods to analyze all types of asbestos samples, which would include air, dust, 21 bulk, water and human lung tissue analysis. MAS, LLC (MAS), is an engineering consulting 22 firm that specializes in material characterization work, asbestos analysis, and the testing of 23 asbestos containing products. 24 12. The above evidence is the type o f evidence often relied upon by industrial 25 hygienists, including myself, in evaluating working conditions at facilities, in determining the 26 nature and extent of exposure to asbestos and other workplace hazards, and for advising others, 27 including employers and physicians, on the circumstances and extent of exposure to workplace 28 dcc.John.Templin.fmal 4 DECLARATION OF JOHN TEMPLIN 03: 49 5627995531 MAS RASE 1 substances and hazards. I am familiar with asbestos-caused diseases as they relate to the field of 2 Industrial Hygiene. 3 13. Documents reviewed in preparation of this declaration are listed throughout. 4 These include but are not limited to portions of the depositions o f Thomas Rubino, Ken Tanaka, 5 James Turner, Charles Duggar, and Philip Price. 6 ]4. I have also read a number of documents which, according to Plaintiffs' counsel, 7 were produced to Plaintiffs' counsel by Defendant BASF. Such documents include but are not 8 limited to a number of memoranda and other materials from BASF's historical business record 9 archives, which are described in greater detail below and which generally demonstrate that from 10 the 1960s through the 1970s the company which made Bondo auto body filler, which was made 11 of approximately 50% talc (See Exhibit B to the .Deposition of Abdul Razzak taken in Kelly v, 12 AC&S on October 11,2002, attached hereto as Exhibit B), obtained al) or virtually all of its talc 13 from Engelhard, a predecessor of BASF. 14 15. I have also reviewed a number o f other documents produced by Bondo 15 Corporation's successor, NMBFtt, in this case, which are represented as inventory documents 16 and which generally show that the transition from Engelhard as virtual sole supplier of talc to 17 Bondo to the eventual inclusion o f talc from Vermont Talc (Vertal), occurred in approximately 18 1983. The timing of the appearance of the Vertal talc in these inventories corresponds generally 19 with the timing set. forth in BASF's internal Engelhard documents which show Hondo's transition 20 from Engelhard at or near that time. 21 16. I also have reviewed a number of reports, tests, studies, and other analyses of talc 22 from Engelhard from the 1970s and early 1980s which are described in greater detail below and 23 which generally demonstrate that Engelhard'3 Emtal talc, from the early 1970s to the early 24 1980s, demonstrated asbestos fiber content. 25 17. Specifically, the Emtal talc documents I have reviewed included the following: 26 a) An August 18,1972, Royal-Globe Insurance Companies report of a survey 27 done at the Eastern Magnesia talc mine on July 25, 1972 in which three of 28 decJohn.Templia.fmal the four samples tested positive for fibers, ranging from 0.9 fibers per cc 5 DECLARATION OF JOHN TEMPLIN 03: 43 5627995531 MAS PASE 1 2 3 b) 4 5 6 7 8 9 10 11 12 13 14 15 c) 16 17 IS 19 20 21 22 23 24 25 26 d) 27 28 decJohn.Templm.fin.il to 3.5 fibers per cc and included it was noted that certain results "would be above the proposed new OSHA limit..." (See Exhibit C, attached hereto.) A September 5,1972, Johns Manville analysis o f Engelhard/Eastem Magnesia talc which showed that two out o f six (33%) samples were contaminated with tremolite asbestos at approximately 1%. The fibers were from 5 to 20 microns in length, with an average length of 5-10 microns. (See Exhibit D. attached hereto.) Apparently, the backup materials and photomicrographs from this study as well as many others noted below were subsequently destroyed pursuant to a 1984 Engelhard internal corporate "purge" memorandum, which is described in Dr. Hemstock's deposition o f May 5,2012. (See March 7,1984 memorandum and portions of Deposition o f Glen A Hemstock, collectively attached hereto as Exhibit E, at pp. 32:21-33:2; pp. 33:19-34:11; p. 35:7-13; pp. 38:19-39:5; p. 44:9-15; pp. 65:1-67:4.) A February 28,1973, Engelhard technical service request with test results and comments entitled "Emtal Mine Waste Rock-Asbestos-Form Particles and Free Silica," The description o f the problem and the work requested was so that Engelhard could determine whether it was or was not "exposing ... miners to asbestos-form particles.. .in quantities that are deemed to be in ju rio u s .R e s u lts showed that there were "asbestos fibers counted" in all four of these samples tested. While the same four samples also tested negative for asbestos on "X-Ray analysis," it should be noted that the sensitivity of the X-ray analysis, parti cularly for lower levels o f asbestos, is lower than certain other techniques. (See Exhibit F, attached hereto.) A March 6.1973 Engelhard inter-department memorandum which noted that another third set of Johns Manville tests had been performed on samples from the Engelhard mine. The underlying Johns Manville report, 6 DECLARATION OF JOHN TEMPLIN y 2 2012 03:49 5B27995531 MAS PAGE 1 2 3 4 5 6 7 e) 8 9 10 11 12 13 14 15 16 f> 17 18 19 20 21 g) 22 23 24 25 26 27 h) 28 dec.John.Tcmplin.final by E. J. Bulava, which was originally attached to the March 6, 1973 memorandum is not attached, and thus appears to have been subject to the same "purge" memo described by Dr. Hemstock in his deposition. The memo shows that all six samples submitted were fibrous and that the materials were "classified as asbestos or 'asbestifomV under the OSHA definition..." (See Exhibit G, attached hereto.) A May 25,1973, Johns Manville fourth report o f samples sent to it by Engelhard for analysis which showed that, in using phase contrast microscopic inspection, four o f the five samples were positive for asbestos fibers. While one sample came out negative during the initial counting, further scanning of the filter showed some fibers which were "three to four microns in length." (See Exhibit H, attached hereto.) Again, photomicrographs accompanied the report but are not attached and apparently were subject to ihe "purge" memorandum described in Dr. Hemstock's deposition. (See Exhibit E at pp. 124:7-126:12.) An August 26,1976, report about Dr. John Dement's (NIOSH) examination of Vermont talc samples from a number of producers, including Engelhard/Eastem Magnesia. O f the four samples from the Engelhard mine, two tested positive for ebrysotile asbestos fibers. (See Exhibit I, attached hereto.) For the years 1974-1975, there are apparently no tests or results in the historical business records archives from BASF. According to Dr. Hemstock, Eugelhard's chemist, he would be surprised if there wasn't testing done during this time and if such testing was done, any results would have been subject to the 1984 purge memo. (See Exhibit E at pp. 126:15-127:1.) A May 2,1977 report by Mark Palenik, Research Microscopist for McCrone, on a sample from Engelhard which contained approximately 7 DECLARATION OF JOHN TEMPLIN 03:49 5627995531 MAS PAGE 1 2 3 4 i) 5 6 7 8 9 10 j) 11 12 13 14 15 k) 16 17 18 19 20 l) 21 22 23 24 m) 25 26 27 28 dec.Jolm.Templm.hnal 20% fibrous antigorite (a member of the serpentine family o f minerals, the same mineral family to which cbrysotile asbestos belongs), and that also tested positive for chrysotile asbestos. (See Exhibit J, attached hereto.) A May 18,1977 report by Walter C. McCrone Associates, Inc., consulted by Engelhard which shows that in all six samples evaluated there was fibrous tremolite present. While the report calls out that it is using phase contrast methods for identification and quantitation o f asbestos, in my opinion such methods would have included polarized light microscopy for the purposes of fiber type identification. (See Exhibit K, attached hereto.) A .Time 77, 1977, McCrone Associates report o f yet another light microscopy examination o f talc samples submitted by Engelhard O f the two samples submitted, one showed fibrous actinolite, and showed that "90% of the actinolite present is fibrous and can be classified as asbestos." (See Exhibit L, attached hereto.) A July 6,1977, McCrone Associates study o f Engelhard talc for Hallmark Cards, which company was using Engelhard talc for its balloons. Enclosed with that report was a laboratory analysis which showed tremolite in the talc, some o f which was ``fibrous" according to the OSHA and FDA definitions." (See Exhibit M. attached hereto.) An August 18, 1977, inter-department memorandum entitled "Mineralogical Evaluation of Waterbury and Johnson Talc" which showed that actinolite/tremolite was detected in Emtal ore from the Engelhard mine. (Sec Exhibit N, attached hereto.) A Technical Service Request report dated February 1,1979 which shows that testing was made of Emtal talc by transmission electron microscopy, among other methods, at Georgia Tech. A type o f chrysotile was identified by SAED, which utilizes a scanning electron microscope along 8 DECLARATION OF JOHN TEMPLIN \ 03:49 5627995531 MAS PAGE 1 2 3 n) 4 5 6 7 8 9 o) 10 11 12 13 P) 14 15 16 17 18 19 20 21 q) 22 23 24 25 26 27 28 dec.John.Templin.fmaI with diffraction methods, which together arc capable of identifying both fibers and fiber type. (See Exhibit 0 , attached hereto.) An April 11, 1979, inter-department memorandum from Engelhard contains an update of the "talc investigation" and which "concerns the identification of contaminants in a number o f talc production samples using transmission electron microscopy." That report shows results from the Georgia Institute of Technology from February 12 and February 1,6 of that year. (See Exhibit P, attached hereto.) An April 30, 1979, McCrone Associates, report which reveals that bulk samples o f Engelhard/Eastem Magnesia talc that were examined "contained extremely high levels of chrysotile asbestos, probably in the range of 0.10% to 1% of the sample." (See Exhibit Q, attached hereto.) A May 22,1979, inter-department memorandum which reports on the results of tests performed by both Georgia Tech and McCrone Associates. That report shows that multiple samples of Emtal 42 were submitted to Georgia Tech for assay, including samples from an earlier production and a later production. For the Emtal 42, the results were consistent in that there were fibers present in every sample tested. Some samples showed "high fiber counts." For the finer talc, some small fibers were found. (See Exhibit R, attached hereto.) A July 17,1979, confidential Engelhard inter-department memorandum which reported on the testing of three samples o f Emtal, including Emtal 42 and which revealed that all the samples contained asbestos fibers ranging in content from "trace" to "minor" to "many" to "abundant" with some fibers longer than 5 microns. That report included a qualitative analysis performed which classified fibers as being "many," "few," and "no fibers present" That report also contains qualitative determination of amounts on grid openings which were categorized as "trace," "minor," 9 DECLARATION OF JOHN TEMPLIN 03:49 5627995531 MAS PASE 1 "many," and "abundant" Quantitative analysis showed asbestos in the 2 talc. Qualitative analysis included samples categorized as "many fibers" 3 and "abundant" fibers. (See Exhibit S, attached hereto.) 4 r) A January 2,1981, McCrone Associates examination of talc samples 5 submitted by Engelhard using polarized light microscopy with dispersiun 6 staining. The asbestos mineral tremolite-actinolite was detected in all 7 three of the samples. Asbestiform content by weight ranged from 0.5% to 8 1% in two o f the samples and 1-2% in the third sample. (See Exhibit T, 9 attached hereto.) 10 18. Thave also read portions of the deposition of Dr. Glen A. Hemstock taken in the 11 case of Sampson v. 3M Compart)' on May 29,2012. 12 a) In that deposition, Dr. Hemstock concedes that it is true that as of 1972, 13 both Royal-Globe and Johns Manville had found asbestos in Emtal talc. 14 (See Exhibit E at pp. 280:25-281:6.) 15 b) In the same deposition. Dr. Hemstock concedes that by 1977, three 16 separate laboratories had found asbestos in Emtal. (See Exhibit E at pp. 17 281:17-282:4.) 18 c) In 1979, Georgia Tech, McCrone, and Engelhard all found asbestos in 19 Emtal. This is conceded in Dr. Hemstock's deposition. (See Exhibit E at 20 p. 284:3-7.) 21 d) In the same deposition. Dr. Hemstock concedes that "four independent 22 scientists concluded that there was asbestos in Emtal." (See Exhibit E at 23 pp. 284:12-285:14.) 24 e) Therefore, Dr. Hemstock concludes that "as of May, 1979, there is no 25 doubt...at this point that there is asbestos being found in the talc from the 26 Emtal mine." (See Exhibit E at p. 285:22-286:20.) 27 28 decJoha.Templin.fina] 10 DECLARATION OF JOHN TEMPLIN \ 03:49 5627995531 MAS PAGE 1 f) In fact, in his deposition, Dr Hemstock concludes that samples were 2 looked at for fifteen weeks straight and that they found fibers in every 3 sample. (See Exhibit E at p. 286:21-287:6.) 4 g) When asked about the accuracy o f the statement "Emtal was an asbestos 5 free talc" Dr. Hemstock atlmiLs "on the face of it, it is not." (See Exhibit E 6 at p. 301:13-302:5.) 7 h) Dr. Hemstock also admitted that Engelhard's statement that "Emtal platy 8 talcs shipped from the Johnson, Vermont plant have been examined by the 9 most appropriate and sensitive mineralogical diagnostic methods 10 available, and it can be stated with confidence that no trace of the asbestos 11 minerals...can be detected..." is false. (See Exhibit E at p. 295:3-25.) 12 19. Based on the foregoing, I would disagree with anyone who expressed the opinion 13 that Emtal talc had a very limited history suggesting the presence of trace levels of asbestos. 1 14 would further disagree with anyone -who expressed the opinion that up until the late 1970s, after 15 many attempts to find asbestos, none had been reported. Similarly, Twould disagree with the 16 opinion, if expressed, that to the extent that testing on Johnson talc detected asbestos in certain 17 samples, it was chrysotile in trace quantities. 18 20. 1have also reviewed the Declaration of Carl Andrew Brodkin, MD, MPH, which 19 is attached to my declaration as Exhibit U and to the Brokaw Dec, as Exhibit B. Dr. Brodkiu's 20 declaration, including his opinions and analysis, are among the materials which I have read, 21 relied upon, and/or considered in connection with my opinion in this case. 22 21. I have reviewed portions of the depositions of former Bondo employees. Charles 23 Duggar and Phillip Price. Mr. Duggar was a Bondo employee from 1966 until 1983 and one of 24 his job duties was to order the talc that Bondo used for its body filler. He testified that 25 "[Engelhard] was the only place [Bondo] ever bought any talc. And that's who [Bondo] always 26 ordered it from." (See portions of the Deposition of Charles Duggar, taken on May 11,2004, in 27 Mills v. American Optical Corporation, et a l attached hereto as Exhibit V, at p. 9:3-9; 10:4-6; p. 28 15:12-18: p. 18:9-21; p. 39:3-5.) Mr. Price started at Bondo in 1960 and in 1968 he became a dcc.John.TempIiu.final 1 ] DECLARATION OF JOHN TEMPLIN 03:49 5627995531 MAS PAGE 1 mixer and his job duties included ordering the raw materials used in auto body fillers. According 2 to Mr. Price, at least as of the late 1960s, "there was only one supplier which was Eastern 3 Magnesium talc company." (See portions of the Deposition of Phillip Price taken on July 1,2004 4 in Mills v. American Optical Corporation, et al, attached hereto as Exhibit W, at p. 7:17-25; p. 8: 5 11-15; p. 9:8 22.) 6 22. Additional documents that I have reviewed concerning Bondo's talc supply 7 include the following: 8 a) A letter dated June 22,1978 to Mr. Charles Carter o f Engelhard noted that 9 "[Engelhard] continue[$J to sell Bondo 100% of their requirements"; (See 10 Exhibit X, attached hereto.) 11 b) An October 13,1978 Customer's Report from three Engelhard salesman 12 reported that according to Dynatron/Bondo president, Quinn Machamer, 13 Bondo has a dual source for its glass bubble materials but does not have a 14 dual source for its talc. (See Exhibit Y, attached hereto.) 15 c) A Customer's Report from Engelhard salesmen regarding a May 1,1979 visit with Dynatron/Bondo president, Quinn Machamer, noted that Quinn 16 is "willing to continue with [Engelhard] on 100% share o f business if 17 [Engelhard] will meet [Vertal's] competitive offer; (See Exhibit Z, 18 attached hereto.) 19 d) A November 6, 1979 Inter-Department Memorandum from an Engelhard 20 salesman titled "New England 42 Talc Accounts" gets forth that at Bondo, 21 Engelhard's ("EMC") position is " 100%."; (See Exhibit AA, attached 22 hereto.) 23 e) In an August 19, 1980 Salesman Call Report, an Engelhard salesman 24 reported that "Engelhard talc is the only talc that [Dynatron Bondo] usc[$], 25 they don't buy a pound of Vermont talc or anybody else's." (See Exhibit 26 BB, attached hereto.) 27 0 28 dec_John.Templin.fina! In a Customer's Report dated December 18,1981, an Engelhard salesmen set out the contract terms that Engelhard proposed and Rondo agreed to 12 DECLARATION OF JOHN TEMPI .TN 03:49 5627995531 MAS PAGE 1 and affirmed that "with this contract in place, [Engelhard] will hold the 2 volume and [its] 100% supply position,.." (See Exhibit CC, attached 3 hereto.) 4 g) In a December 13,1982 Customer's Report regarding contract 5 negotiations with Bondo personnel Scott Thurman and Abdul Razzak, 6 Engelhard salesman J.J. Morris reported that Mr. Thurman represented that if Engelhard agrees to certain pricing proposals, he "will continue 7 8 supporting [Engelhard's] position as the sole talc supplier to Dynatron" and "indicated his desire to abide by contract contents, which stipulate a 9 100% supply situation " (See Exhibit DD, attached hereto.) 10 h) In a Customer's Report dated March 25,1983, Engelhard salesman ,TJ . 11 Morris reported that Engelhard's request for a price increase in Ihe 1983 12 contract with Bondo "would place [Engelhard's] 100% supply situation in 13 jeopardy" given the competitive offer Bondo was receiving from Vertal. 14 (See Exhibit EE, attached hereto.) 15 i) A June 22, 1983 Customer's Report, authored by Engelhard salesmen 16 reveals that during a meeting on June 15, 1983, [Bondo president Quinn 17 Machamer] "indicated his long standing desire to remain with Engelhard" 18 but that "due to Verial 7s continued pricing activity over the past years, 19 [Mr. Machamer] felt, ethically bound to include [Vertal] has suppliers." 20 (See Exhibit FF, attached hereto.) 21 23. I have also reviewed inventory documents produced by Bondo in this case. These 22 documents include year-end inventory analyses for each of Bondo's U.S. locations in the early 23 1980s. (See Exhibit GG, attached hereto.) The first year that Vertal talc shows up in the 24 inventory is 1983. 25 24. Based on my review of the depositions o f Bondo employees Charles Duggar and 26 Phillip Price, the BASF documents set forth above, and the Bondo inventory documents, it is my 27 opinion that Bondo's predominant, if not sole, supplier of talc up until 1983 was Engelhard, 28 dec.John.TempIm.fina] 13 DECLARATION OF JOHN TEMPLTN 03:49 5627995531 MAS PAGE 1 25. I have reviewed the relevant portions of the depositions of percipient witnesses 2 Tom Rubino, James Turner, Ken Tanaka and Doug Didrikson. 3 a) Tom Rubino testified that the Bondo that his father used came in a 4 container that said "Bondo" and he saw his father performing work with 5 Bondo auto body filler from approximately 1961 or 1962 through 1972. 6 Each time his father did this work he would have to apply as many as six 7 coats o f the Bondo body filler on each location on the vehicle and each 8 time he applied a coat, he would sand it down. (See portions of Deposition of Tom Rubino, Vol. II. taken May 21,2009, attached hereto as Exhibit 9 HH, at pp. 183i6-r84:10;p, 186:12-19; p .l8 7 :l-U ;p p .l9 3 :8 -l9 5 :ll.) 10 b) James Turner worked at Walker Brothers with Mr. Rubino from 1955 11 through 1977. He testified that Bondo auto body filler, which came in 12 containers said the word "Bondo" on them, was the only body fill product 13 that was used at Walker Brothers. He saw Mr. Rubino use the Bondo body 14 filler in the 1950s and 1960s, and each time he used it, he would apply die 15 Bondo with a spatula, smooth it, let it dry, and then sand it. If it was not 16 smooth enough, multiple coats were applied and it was sanded after each 17 application. (See portions of Deposition o f James Turner, taken March 14, 18 2012, attached hereto as Exhibit II, at pp. 31:24-32:7; pp. 32:13-33:11; p. 19 33:15-1.9; p. 34:7-19; pp. 35:14-36:4; p. 43:7-10; p. 38:2-7; p. 105:1-4.) 20 c) Ken Tanaka worked at Walker Brothers with Mr. Rubino from 1956 until 21 approximately 1984. He testified that each time they used auto body filler 22 they had to use multiple coats and would sand it after each coat was 23 applied. When the body fill was sanded it created dust in their workspace 24 which he and Mr. Rubino cleaned up with brooms and an air hose. Mr. 25 Tenaka testified that this occurred on a regular basis throughout the time 26 that they worked at Walker Brothers. (See relevant portions of the Deposition o f Ken Tanaka, taken. September 23, 2010, attached hereto as 27 28 dcc.jQhn.Templin.fmal 14 DECLARATIO N OF JOHN TEMPT .TN 03:49 5627995531 MAS PAGE 1 Exhibit JJ, atpp. 21:24-22:4; p. 22:17-25; pp. 74:18-25:4; pp. 38:22- 2 39:14; p. 62:17-24; pp. 63:11-64:4.) 3 d) Doug Didriksen also worked with Mr. Rubino at Walker Brothers the 4 entire time that Mr. Rubino was employed there. Mr. Didriksen confirmed 5 that each time Mr. Rubino applied Bondo, it. would be filed down with a 6 body file or a grinding wheel. (See portions o f the Deposition of Doug Djdrikson, taken June 7,2011, attached hereto as Exhibit KK, at pp. 7 12:22-13:3; p. 1 5 :1 4 -1 6 ; p. 4 5 : 9 - 2 5 .) 8 9 26. Based on the foregoing, my conclusion is that Mr. Rubino was exposed to dust 10 from the sanding of Bondo auto body fillers on a regular basis as a part of his job, without adequate respiratory protection, and that for most if not all o f the relevant years up to 1986. the 11 12 Bondo would have been Bondo which contained on average 50% Emtal talc. (See Exhibit B.) 2 7 . I am unaware o f any airborne asbestos sampling during sanding of Bondo or other 13 auto body fillers, but I have seen evidence that such testing was done on asbestos-contaminated 14 talc containing auto body products. In particular, Du Pont "Preparakote" automotive refimshmg 15 primer did contain some trace amounts o f asbestos as a naturally-occurring contaminant o f that 16 talc. (Sec Du Font's Supplemental Responses to Standard Interrogatories Pursuant to General 17 Order 129, attached hereto as Exhibit LL.) Du Pont testing of the sanding operations on the 18 19 Preparakote showed significant airborne asbestos concentrations ranging from 1.6-3.2 fibers per cc of air. (See April 4 ,1 9 7 3 report, attached hereto as Exhibit MM.) While the OSHA 20 Permissible Exposure Limit (PEL) for asbestos was much higher at that time than presently, even 21 then the OSHA asbestos PEL would have been exceeded for work in excess of five hours. 22 28. The above airborne asbestos sampling during sanding of auto body products 23 containing contaminated talc, when compared to ambient levels of asbestos in the general 24 environment, is very high. Ambient levels o f asbestos in the general environment currently 25 range from 10 to 10 fibers per cc o f aix (U.S. Department o f Health and Human Services, 26 Public Health Service, Agency for Toxic Substances and Disease Registry: Toxicological 27 Profile for Asbestos, pp. 158-169, September 2001). A reasonable average figure circa the late 28 dcc.John.Tcmplin.fina] )5 DECLARATION OF JOHN TF.NiPI.TN 03:49 5627995531 MAS PAGE 1 1960s to the early 1970s is 0.00005 fibers per cc o f air (or 5 x 10'5) (Air of 48 U.S. cities, 2 Nicholsons 1971). The airborne fiber concentrations delineated in Paragraph 27 above exceed 3 this ambient level by a factor of roughly 50,000. 4 29. Based on my review o f all o f the above, as well as my experience, education, 5 training, background, and research, as well as the information made known to me in this case as 6 set forth above, it is my opinion that Mr. Rubino, as a regular part o f his job, and on a regular 7 basis, experienced asbestos exposure from Bondo automobile body filler in the 1960s and 1970s. 8 This asbestos exposure occurred when the product was sanded and swept, which generated dust 9 which he was exposed to without respiratory protection. To the extent that he has been identified 10 io some witness testimony as wearing a paper mask on occasion, that mask was, from an n industrial hygiene perspective, insufficient to protect him. 12 30. It is further my opinion that the asbestos in the Bondo product came from talc 13 which was supplied by Engelhard/Eastem Magnesia and that such talc repeatedly over the years 14 contained asbestos and/or asbestos fiber in a significant number of the tests performed, and that 15 sanding performed on similar automotive body products which contained contaminated talc have 16 demonstrated asbestos airborne concentrations as high as 3 fibers per cc. This exposure, when 17 compared to ambient background exposure, is far higher, up to thousands to hundreds of 18 thousands times greater, than the exposure suffered by individuals who would not have been 19 exposed to asbestos in an occupational setting. Therefore, this is a significant and meaningful 20 series o f exposures from an industrial hygiene perspective. 21 31. OSHA exposure limits and industrial hygiene threshold limit values ("TLV's") 22 for asbestos exposure levels are not supposed to be used as fine lines for levels of exposure that 23 are considered to be healthy or unhealthy. Similarly, those limits are not supposed to be 24 considered as fine lines or criteria for how much exposure is or is not capable of elevating one's 25 risk for asbestos disease. Indeed, even under today's more stringent OSHA exposure limits, 26 OSHA notes in the preamble to the current standard that there still remains a risk that three 27 persons per one thousand will develop a malignant disease as a result of their exposure at this 28 concentration. Any attempt to use OSTIA or other threshold limit values as fine lines between dec.John.Templin.frnaJ J(j DECLARATION OF JOHN TEMPLTN 03:49 5627995531 MAS PAGE 1 safe and dangerous are misplaced and not supported by the standards, generally-accepted 2 industrial hygiene practice or the consensus o f opinion in the scientific and regulatory 3 communities. 4 32. Disruption of fibers and fiber bundles through mechanical methods such as 5 sanding can increase one's exposure to asbestos beyond that experienced in other scenarios. 6 Therefore, it is my opinion that, while it is helpful to consider the air studies which were 7 performed at the mine, those studies would have been o f exposure levels from a completely 8 different process than Mr. Rubino engaged in when he sanded the product and would not 9 necessarily reflect the true levels of exposure suffered by him, io I declare under penalty of perjury under the laws o f the State o f California that the 11 foregoing is true and correct and that this Declaration was executed on this 12 2012, at Seal Beach, California. day o f June. 13 14 15 JOHN TEMPLIN 16 17 18 19 20 21 22 23 24 25 26 27 28 dec.John.Templiii.5nal 17 DECLARATION OF JOHN TF.MPT ,TN