Document NE3Q4MYRwpD49ZJkwQ2YaKmRR

FILE NAME: /Z DATE: : DOC#: /Z DOCUMENT DESCRIPTION:>ZZZ>Zt 1 PAGES 1 - 70 (NO EXHIBITS) CAUSE NO. B-143,539 IN THE DISTRICT COURT OF JEFFERSON COUNTY, TEXAS 60TH JUDICIAL DISTRICT SHARON BOWEN ELLIS, individually and as Administratrix of the Estate of Thomas Ray Ellis, deceased; and Alicia D. Ellis, surviving child of deceased vs. A. C. & S., et al. CAUSE NO. B-940,195-C IN THE DISTRICT COURT OF ORANGE COUNTY, TEXAS 163RD JUDICIAL DISTRICT DOY DIGGS and VELMA DIGGS vs. A. C. & S., et al. Deposition of Leonard Weaver Tuesday, January 31, 1995 Holiday Inn 55 Ariadena Road Dedham, Massachusetts 02026 *************************************************** J. EDWARD VARALLO, RPR/RMR FRITZ & SHEEHAN ASSOCIATES, INC. 295 DEVONSHIRE STREET - BOSTON, MASS. 02110 (617) 423-0500 FAX 423-0501 FRITZ & SHEEHAN ASSOCIATES, INC. i-- 2 APPEARANCES: J. Donald Carona, Jr., Esq. Law Offices of Martin Dies 1009 West Green Avenue Orange, Texas 77630-5697 for Plaintiffs Ellis Paul D. Henderson, Esq. Law Offices of Martin Dies 1009 West Green Avenue Orange, Texas 77630-5697 for Plaintiffs Diggs Brian S. Clary, Esq. Livingston & Markle 55 Waugh Drive, Suite 1200 Houston, Texas 77007 for Bird Corporation and the deponent Gwen Frost, Esq. Powers & Frost, L.L.P. 24 Greenway Plaza, Suite 2020 Houston, Texas 77046 for Fibreboard Corporation Holly Hartow, Esq. Law Offices of Nelson G. Zeidman 1900 W. Loop South, Suite 700 Houston, Texas 77027 for Mine Safety Appliances Claude R. LeMasters, Esq. Orgain Bell & Tucker, L.L.P. 470 Orleans Street Beaumont, Texas 77701 for 3M Corporation David D. Reynard, Jr., Esq. Rienstra Dowell & Flatten 470 Orleans Building, Suite Beaumont, Texas 77701 for American Optical (Diggs Kansas City Southern (Ellis 1010 case ) case ) FRITZ & SHEEHAN ASSOCIATES, INC. 3 1 Theodore F. Roberts, Esq. Peabody & Arnold 2 50 Rowes Wharf Boston, Massachusetts 02110 3 for Center for Claims Resolution 4 Paul T. Edwards, Esq. Danaher Tedford Lagnese & Neal, P.C. 5 700 Capitol Place 21 Oak Street 6 Hartford, Connecticut 06106-8000 for Pittsburgh Corning 7 ALSO PRESENT: 8 Frank S. Anthony, 9 Vice President and General Counsel Bird, Incorporated 10 11 12 13 PROCEEDINGS 14 3:45 p.m. 15 LEONARD WEAVER, 16 having been first duly sworn on oath, 17 was examined and testified as follows: 18 MR. CARONA: I believe in regard to 19 the last deposition, Brian, you wanted to reserve 20 the right to read and sign the deposition. Is that 21 right? 22 MR. CLARY: I don't think we 23 addressed it. 24 MR. CARONA: We're addressing it now. FRITZ & SHEEHAN ASSOCIATES, INC. 4 Leonard Weaver 1 MR. CLARY: In the last one I don't 2 think we addressed it. 3 Mr. Weaver, you have a right once 4 this deposition is transcribed into booklet form to 5 read that deposition and to check it for mistakes, 6 misprints, misspellings, any errors that you want to correct, and you can correct those before it 8 becomes a final part of the record in this case. 9 You don't have to do that. It is 10 completely up to you. It will require you to look 11 at the deposition and probably go to this man's 12 office and sign that deposition transcript, or you 13 can waive that and just let the record be as it is 14 today. 15 THE WITNESS: I think it will depend 16 mostly on the outcome of our conversation here. If 17 I feel that I might have said things I didn't 18 intend to say or something of that sort, I might 19 ask to read the transcript. Otherwise I'll waive 20 that right. 21 MR. CLARY: Why don't we waive it and 22 if at some point in time you change your mind, we 23 can do that. Okay? 24 THE WITNESS: Okay. FRITZ & SHEEHAN ASSOCIATES, INC. 5 Leonard Weaver 1 EXAMINATION 2 BY MR. CARONA: 3 Q. Mr. Weaver, my name is Don Carona and 4 I represent Sharon and Alicia Ellis in regard to a 5 lawsuit that is pending against Bird, Incorporated, 6 and other defendants arising out of the death of 7 their husband/father Thomas Ellis. Today is the 8 first day that you and I have ever met. Is that 9 right? 10 A. That's correct. 11 Q. Have you ever given a deposition before? 12 A. No. 13 Q. The court reporter is writing or typing 14 everything that's being said, and accordingly I'm 15 going to try to wait until you finish your response 16 before I ask you another question, and if you would 17 do likewise, we would all appreciate it so that he 18 can hear everything that is being said. 19 It is very important in this 20 deposition that you understand the questions that 21 are being asked and that we know that you 22 understand the questions that are being asked, so 23 can we have an agreement that if at any time you 24 think that you might not understand the question, FRITZ & SHEEHAN ASSOCIATES, INC. 6 Leonard Weaver 1 you will let us know that immediately? 2 A. Certainly. 3 Q. Thank you. 4 Where do you reside, Mr. Weaver? 5 A. Presently? 6 Q. Yes, sir. 7 A. In Walpole, Massachusetts. 8 Q. Is Walpole a suburb of Boston? 9 A. Loosely speaking, yes. It's about 20 10 miles from downtown Boston. It's two towns south 11 of here. 12 Q. You are currently retired from Bird, 13 Incorporated. Is that correct? 14 A. Yes. 15 Q. When did you retire? 16 A. February 1982. 17 Q. What is your age, Mr. Weaver? 18 A. I'll be 78 in August of this year. 19 Q. Where were you born? 20 A. In Boston. 21 Q. Have you lived in the Boston area all of 22 your life? 23 A. Yes. 24 Q Did you graduate from high school? FRITZ & SHEEHAN ASSOCIATES, INC. 7 Leonard Weaver 1 A. Yes. 2 Q. Did you attend college? 3 A. Yes. 4 Q. Where did you go to college at? 5 A. M.I.T. 6 Q. Did you graduate? 7 A. Yes. 8 Q. And what degree did you obtain? 9 A. Bachelor's degree. 10 Q. In engineering? 11 A. In geology. 12 Q. Do you have any additional college 13 education? 14 A. I went for one year following that, a 15 graduate year of half-time studies which would have 16 led to a master's degree, but I quit after the 17 first year and went to work for Bird. That was 18 1941 and the world conditions were a little 19 uncertain at the time. 20 Q. Did you ever serve in the armed forces? 21 A. No. I was 4F, being asthmatic, so 22 I never served. 23 Q. Explain that to me, please. 24 A. I was asthmatic. I was turned down. FRITZ & SHEEHAN ASSOCIATES, INC. 8 Leonard Weaver 1 I had a classification of 4F. 2 Q. I understand. 3 So you were hired by Bird in 1941? 4 A. Right. 5 Q. When you went to work for Bird in 1941 at 6 what location did you work? 7 A. In the Norwood roofing plant. 8 Q. When you joined the company in 1941 what 9 was your position? 10 A. Geologist. 11 Q. What function did you perform as a 12 geologist for Bird Roofing at that time? 13 A. My first assignment was to look around 14 the area within a reasonable distance from the 15 company to find a source of rock suitable for 16 roofing granules. 17 Q. And the roofing granules, they would be 18 used on a shingle? 19 A. Yes. Those little, little particles that 20 you see that are colored and embedded into the 21 surface of the shingle. 22 Q. As a geologist were you within a 23 particular division or department of the roofing 24 division such as the research and development FRITZ & SHEEHAN ASSOCIATES, INC. 9 Leonard Weaver 1 division? 2 A. Well, we didn't have a division which was 3 specifically that. I was attached to the roofing 4 laboratory, which indulged in any business which 5 was pertinent to the control of the roofing 6 shingles as they were made. And in that respect 7 sooner or later I branched out from geology because 8 there were other functions pertaining to the 9 technical end which I was required to do, like the 10 coloring of the granules, the techniques of 11 coloring the granules and stuff like that. 12 Q. When do you think generally did you 13 branch out from your role as a geologist? 14 A. Almost immediately, because the first 15 thing I did was to find a source of rock which they 16 are still using, so consequently I did myself out 17 of a job. So I had to do other things as well. 18 Q. After that project wherein you found the 19 rock for the granules, you continued as a part of 20 did you say research lab? 21 A. Yes, we'll call it that for the sake of 22 simplicity. They called it a laboratory without 23 any qualifications at that time. 24 Q. Okay. And did you have a general job FRITZ & SHEEHAN ASSOCIATES, INC. 10 Leonard Weaver 1 description? Tell me what it was. 2 A. That's so long ago, I forget what the 3 specifics might have been. It was really to do 4 whatever was required, whether it was working with 5 the granule manufacturing, whether it was to test 6 asphalt products, whether it was to look at 7 complaints on roofing which might have come in that 8 were not performing properly. It was spread out. 9 It was a widely diversified bit of business. 10 Q. When did the lab begin to be called a 11 research and development department or lab? 12 A. Well, I don't want to go into a great 13 deal of detail, but there were four separate groups 14 within the company at the time. Each of the plants 15 in the East Walpole area had its own laboratory: 16 the paper division, floor covering division, and 17 the roofing division. Separate from that, there 18 was a research director who had a few employees 19 working for him as well and then when he retired 20 and they merged the groups, subsequently what 21 happened was the paper division was no longer part 22 of the company and the floor covering division was 23 no longer a part of the company, and the laboratory 24 I worked for was consolidated into one organization FRITZ & SHEEHAN ASSOCIATES, INC. 11 Leonard Weaver 1 which ultimately wound up being called the 2 technical center, which probably describes it as 3 well as anything else. 4 Q. Do you know approximately when that 5 consolidation occurred so that this technical 6 center came into being? 7 A. About 1971 or thereabouts. At that time 8 the laboratory was moved from its location in the 9 area of the roofing mill to a location in East 10 Walpole in an old box manufacturing facility. 11 Q. Prior to the move in 1971, the lab was 12 located on the third floor of a building wherein 13 asbestos cements and coatings were made. Is that 14 correct? 15 A. Right. When I first went to work there 16 was another laboratory on the second floor of that 17 same building, and it continued as a quality 18 control laboratory, and on the third floor we were 19 classified as research and development. 20 Q In 1971 when this consolidation occurred, 21 what would your position have been? 22 A. Well, at that time my title was product 23 development manager. 24 Q As product development manager you would FRITZ & SHEEHAN ASSOCIATES, INC. 12 Leonard Weaver 1 have been Mr. Patenaude's immediate boss? 2 A. I hired him, yes. 3 Q. From the time that you began working for 4 Bird in 1941 till your retirement in 1982, was there ever a time when you were not working for 6 Bird? 7 A. No. 8 Q. When you retired in 1982 what was your 9 position? 10 A. Well, they changed the title from product 11 development manager to technical center manager 12 because we felt that more properly described the 13 function of the department. 14 Q. When did that change occur? 15 A. Oh, I would guess '75, thereabouts. 16 Q. Are you currently a member of any 17 professional associations? 18 A. No. When I retired, I retired, period. 19 Q. Prior to retirement did you belong to 20 such associations such as RSIA? 21 A. I was a delegate on the part of the 22 company to the Asphalt Roofing Manufacturers 23 Association and the Society of the Plastics 24 Industry. I think that's all. We were members of FRITZ & SHEEHAN ASSOCIATES, INC. 13 Leonard Weaver 1 this ASTM but I was not the Bird delegate to that. 2 Q. The same would hold true for the National 3 Roofing Contractors Association? You weren't the 4 Bird delegate? 5 A. I was not a delegate to that because it 6 was a manufacturers' association and not a 7 technical group. 8 Q. When you joined the company in 1941 did 9 Bird have a company doctor? 10 A. There was a doctor on call at all times. 11 I don't think there was ever a company doctor in 12 residence. 13 Q. Who was the doctor on call at all times 14 when you joined the company in 1941? 15 A. Oh, boy! I couldn't say. I didn't have 16 occasion to use his services, so.... 17 Q. Do you recall a Dr. McDonald that was on 18 call for Bird? 19 A. The name is familiar. I think that was 20 more recent years that he was associated with the 21 company. I don't know him personally. 22 Q. What about Dr. Eugene Doherty in 23 Norwood? Are you familiar with that doctor? 24 A. No. FRITZ & SHEEHAN ASSOCIATES, INC. 14 Leonard Weaver 1 Q. In preparation for your deposition have 2 you reviewed any documents? 3 A. The only document I saw was one that was 4 showed to me yesterday which happened to be a copy 5 of a letter that I had written to a plastics 6 magazine. 7 Q. Have you visited or talked with anyone in 8 preparation for your deposition 9 A. Yes. 10 Q. -- or about your deposition other than 11 Mr. Clary? 12 A. And Mr. Anthony. 13 Q. No one other than those two? 14 A. No one else. 15 Q Do you currently own any stock of Bird, 16 Incorporated? 17 A. No. 18 Q. Are you receiving retirement benefits? 19 A. Yes. 20 Q. When you joined the company in 1941 Bird 21 was manufacturing certain asbestos-containing 22 products. 23 A. Yes. 24 Q. Specifically at that time Bird was FRITZ & SHEEHAN ASSOCIATES, INC. 15 Leonard Weaver manufacturing and selling asbestos-containing roof cements and coatings? A. Yes. Q. Did Bird have the Shreveport facility in existence in 1941? A. Yes. Q. And were those asbestos-containing cements and coatings being made at Shreveport back then? 10 MR. CLARY: Objection, calls for 11 speculation. 12 A. I don't know. My guess would be yes, but 13 I can't -- I'm not sure. 14 Q. Certainly at Norwood in 1941 Bird was 15 making and selling asbestos-containing cements and 16 coatings? 17 A. Yes. 18 MR. CLARY: And we are taking this 19 pursuant to the same stipulations that we had in 20 the deposition earlier of Mr. Patenaude? 21 MR. CARONA: Yes. 22 MR. CLARY: Okay. 23 BY MR. CARONA: 24 Q. A little earlier we talked about the fact FRITZ & SHEEHAN ASSOCIATES, INC. 16 Leonard Weaver 1 that prior to 1971 you were working in the lab 2 located on the third floor of this building, the 3 first floor of which was devoted to making roofing 4 cements and coatings. 5 A. Right. 6 Q. When did you begin working in that 7 building? 8 A. 1941. Actually I worked the summer of 9 1940 between college terms but at that time I was 10 out in the field hunting for rock all the time so 11 I was only in that building a few minutes out of 12 the time and the rest of the time I was on the 13 road. But starting permanently it was 1941. And 14 at that time the laboratory was on the second 15 floor, not the third floor. 16 Q. So for basically thirty years you were 17 working in the same building where Bird made 18 asbestos-containing roofing cements and coatings? 19 A. Yes. 20 Q. Would it be correct that on numerous 21 occasions you had occasion to view and observe the 22 manufacturing process of those products? 23 A. Yes. 24 Q. Were you ever involved in the decision as FRITZ & SHEEHAN ASSOCIATES, INC. 17 Leonard Weaver to who would be the supplier of asbestos fibers? A. No. Q. From what you have read and heard and been told, do you understand today that the inhalation of asbestos fibers can cause such injuries as asbestosis and cancer? A. Yes. Q. Now, in 1941 when you began working in this building where Bird was making these asbestos- 10 containing roofing cements and coatings, did the 11 employees of Bird who were actually working with 12 the bags of asbestos, opening the bags up, pouring 13 them into the vat, were they wearing any sort of 14 protective equipment? 15 A. They were issued dust masks, yes. 16 Q. In 1941? 17 A. Yes. 18 Q. Generally did the employees wear the dust 19 masks? 20 A. I was not watching them so I've got to 21 admit I don't know. They were not within view of 22 where we worked, so it was up to them to decide 23 whether to wear them or not. But presumably that's 24 what they were supposed to do. FRITZ & SHEEHAN ASSOCIATES, INC. 18 Leonard Weaver Q. Did you ever see the bags of asbestos? A. Yes. Q. Was there a particular location within that building where the bags of asbestos were stored? A. Now, you're asking me to go back fifty years. But most of the storage was on the bottom floor where the tank was, where the vat was where the mixing was taking place. Then to feed them 10 into the vat they had to transport them by elevator 11 up to the third floor of the building and dump them 12 down through a hole into the vat. 13 Q. And is it correct that the employees 14 would take the bag of asbestos, cut it open and 15 pour it into that hole that you're talking about? 16 A. Yes. 17 Q. In 1941 did you have an understanding 18 that the inhalation of asbestos fibers could cause 19 personal injury? 20 MR. CLARY: Objection, vague. 21 THE WITNESS: Did I hear somebody say 22 objection? 23 MR. CLARY: Yes. From time to time 24 I'm going to make an objection for the purposes of FRITZ & SHEEHAN ASSOCIATES, INC. 19 Leonard Weaver protecting some issues on the record that we will take up with the court at a later date. It is not intended to interrupt you or to influence what you say or do. Concentrate on his questions, ignore my objections, and answer to the extent that you can throughout this deposition. A. In answer to your question I was aware at the time I went to work for Bird that asbestos fibers were not healthy to breathe. 10 Q. Mr. Weaver, how did you come about having 11 this knowledge that the inhalation of asbestos 12 fibers could be harmful? 13 A. Reading trade journals including reports 14 from the Bureau of Mines and other organizations, 15 and I took mineralogy at M.I.T. as part of the 16 geology course and it was brought up at that time 17 too. So it was not news to me. 18 Q. In 1941 when you joined Bird you had 19 heard of the term asbestosis. Is that correct? 20 A. Yes. 21 Q. When you were working in this laboratory 22 in 1941 in this building that we have described, 23 who was your immediate supervisor? 24 A. The supervisor's name at the time I was FRITZ & SHEEHAN ASSOCIATES, INC. 20 Leonard Weaver 1 hired was Frank Reynolds. 2 Q. What would his title have been? 3 A. Chief chemist. 4 Q. And Mr. Reynolds, who would have been his 5 supervisor? 6 A. He reported to, well, his allegiance was 7 split. There was a director of research called 8 Edward Lines and also I think he took his orders 9 from Milton Beasley, who was the plant 10 superintendent. 11 Q Based upon your communications with 12 Mr. Reynolds, your immediate supervisor, back in 13 the 1941 time period did he have an understanding 14 that the inhalation of asbestos fibers could cause 15 personal injury? 16 A. I don't -- 17 MR. CLARY: Let me object to that as 18 calling for speculation. But you may answer. 19 A. I don't know. 20 Q. As you sit here today you don't have any 21 recollection of conversations that you may have 22 had? 23 A. I do not have any, no. 24 Q At what point in time did you become the FRITZ & SHEEHAN ASSOCIATES, INC. 21 Leonard Weaver 1 leader in that laboratory? 2 A. On the death of the man who was my 3 supervisor and after Frank Reynolds left, he was 4 replaced by a Stanley Sallie. And his title at 5 that time was product development manager and I was 6 his assistant. On Stanley Sallie's death in 1966 7 I was given that title and kept it until it became 8 technical center manager later on. 9 Q. Now, when you became the head of the 10 laboratory in 1966 who did you report to? 11 A. At that time I think it might have been 12 directly to Robert Jenkins, the president of the 13 company. There were several changes of position 14 amongst the corporate executives at that time. 15 I'll take it back; it was not. It was the 16 executive vice president whose name was Bernard 17 Soward. 18 Q. Was he the president of the roofing 19 division? 20 A. No. He was the vice president of 21 manufacturing of the whole company. 22 Q. Did you continue to receive these 23 journals, these trade journals that you referenced 24 earlier, while you were employed by Bird? FRITZ & SHEEHAN ASSOCIATES, INC. 22 Leonard Weaver 1 A. Yes. The nature of them changed, of 2 course, with time but we received a large variety 3 of trade journals all pertaining to the roofing 4 business and ultimately to the vinyl siding 5 business too. 6 Q. Did Bird receive the trade journal for 7 the Bureau of Mines and Minerals? 8 A. No. I don't even think there is one. 9 Q. When did you first learn that the 10 inhalation of asbestos fibers could cause cancer? 11 A. I can't answer that. I don't know. 12 Q. Did Bird have a policy in 1941 when you 13 joined the company that its employees must wear 14 dust masks when working with asbestos? 15 A. No. They gave the employees the dust 16 masks but nobody sat around and drove them or 17 insisted, you know, that they do so. 18 Q. Did you ever wear a dust mask when you 19 were in the area where the asbestos-containing 20 roofing cements and coatings were being made? 21 A. No. I wasn't there at all. Actually, we 22 had a closed door between that part of the building 23 and where we worked. 24 Q Did you ever have any conversations with FRITZ & SHEEHAN ASSOCIATES, INC. 23 Leonard Weaver any of your Bird co-employees as to whether Bird should require that any of its employees wear dust masks? A. I don't remember. Q. As far as you were concerned, the Bird employee if he wanted to, that is, the Bird employee who was working with asbestos, could wear a dust mask which was provided by Bird so as to protect him from some of these diseases that we've 10 talked about associated with asbestos? 11 A. Right. Pardon? Well, let's put it more 12 accurately. It was given to him to protect him 13 from inhaling the dust. The consequential diseases 14 we didn't take the trouble to -- Nobody knew for 15 sure what they were then. 16 Q. But you need to correct me if 17 I misunderstood you earlier. You did understand in 18 1941 that the inhalation of asbestos fibers could 19 cause a disease called asbestosis? 20 A. Yes. 21 Q In the 1940s or the 1950s or the 1960s 22 did you ever have any communications with any 23 competitors of Bird in terms of the use of asbestos 24 as a part of roofing products? FRITZ & SHEEHAN ASSOCIATES, INC. 24 Leonard Weaver 1 A. No. 2 Q. Do you recall a Bird employee by the name 3 of George Angus? 4 A. No. 5 Q. When you became the leader of the 6 laboratory for Bird in 1966, did you have any 7 communications with any of your superiors in terms 8 of whether Bird should eliminate the use of 9 asbestos from any of the products that it made or 10 sold because of this health hazard associated with 11 the inhalation of asbestos? 12 A. No. 13 Q. To your knowledge, for as long as you 14 were employed by Bird, did Bird ever perform or 15 have performed on its behalf any studies or tests 16 on any asbestos-containing products for the purpose 17 of determining the asbestos fiber release that may 18 occur due to the normal and foreseeable use of 19 those products? 20 A. No. 21 MR. CLARY: Let me just object to the 22 form of the question as being vague. It is not 23 time-specific, calls for speculation, and calls for 24 a legal conclusion to the extent of the use of the FRITZ & SHEEHAN ASSOCIATES, INC. 25 Leonard Weaver word foreseeability. 2 You're going to need to give me an 3 opportunity when I'm gesturing to you to make an 4 objection on the record, Mr. Weaver. Okay? 5 THE WITNESS: Yes. 6 BY MR. CARONA: 7 Q. The answer to my question is no. Is that 8 correct? 9 A. That's right. 10 Q. To your knowledge at any time while you 11 were employed by Bird, did Bird conduct or have 12 conducted on its behalf any dust studies or tests 13 to determine the asbestos fiber count in the air in 14 any of the Bird facilities? 15 MR. CLARY: Let me object to this as 16 calling for speculation. It is vague and ambiguous 17 as to time and there has been no proper foundation 18 laid for this witness to have that knowledge. 19 A. Do you still want me to answer? 20 Q. Yes. 21 A. The laboratory I worked for had a small 22 dust counter with which we sampled dust in the area 23 of the cement kettle at certain intervals and 24 reported to the management. FRITZ & SHEEHAN ASSOCIATES, INC. 26 Leonard Weaver 1 Q. Did this dust counter exist in 1941? 2 A. Yes. My first assignment was to use it 3 at the granule plant, not at the cement 4 manufacturing process. 5 Q. Was the dust counter used in 1941 by Bird 6 to take a test or sample of the asbestos dust count 7 in the area where asbestos was used in the 8 manufacture of roofing cements and coatings? 9 A. Yes. 10 Q. And did you personally perform that test? 11 A. Rarely, but I believe I did once or 12 twice. 13 Q. When this test was performed on the 14 asbestos dust, would it be performed while the 15 asbestos was being poured into the vat? 16 A. Yes. At the time they felt the 17 concentration was the greatest. 18 Q. And did you indicate earlier that the 19 test results were then given to Bird management? 20 A. Right. 21 Q. I assume that the test results were 22 reduced to writing. 23 A. Yes. 24 Q And were the written test results given FRITZ & SHEEHAN ASSOCIATES, INC. 27 .Leonard Weaver 1 to Bird management? 2 A. Yes, right. 3 Q. Do you have any recall today as to what 4 the test results were? 5 A. Only that they fell within the limits 6 that were set at the time, but I can't recall what 7 the specific limits were. 8 Q. What limits are you referring to? 9 A. The dust is counted in particles per 10 cubic foot. 11 Q. In terms of the limits, are you referring 12 to a limit created by Bird or are you referring to 13 a limit created by some other entity? 14 A. My recollection -- and I've got to admit 15 I don't want to be held to it because that's too 16 far back -- but I believe the standards that we 17 used were issued by the Bureau of Mines in 18 Washington. 19 Q. Were the test results concerning the 20 asbestos dust in the area where the asbestos was 21 being used in the manufacture of cements and 22 coatings ever outside the limit so that 23 modifications would have to be made? 24 A. Not to my knowledge. FRITZ & SHEEHAN ASSOCIATES, INC. 28 Leonard Weaver 1 Q. How frequent were these asbestos dust 2 tests performed? 3 A. I don't remember. 4 Q. Did there ever come a time when these 5 types of asbestos dust tests were stopped in terms 6 of being performed? 7 A. I don't remember. The responsibility for 8 that fell to the quality control department and not 9 to the product development department that I was 10 associated with. 11 Q. Considering what you just stated in terms 12 of whose responsibility this fell upon in 13 subsequent years, do you have any recall as to 14 whether these asbestos dust samples were taken in 15 the 1950s or 1960s? 16 A. I don't remember. 17 Q. Did you ever visit the Shreveport plant? 18 A. Yes. 19 Q. Generally on how many occasions? 20 A. Probably no more than half a dozen. 21 Q. On any of the occasions when you visited 22 the Shreveport plant, did you observe the 23 manufacture of asbestos-containing cements or 24 coatings? FRITZ & SHEEHAN ASSOCIATES, INC. 29 Leonard. Weaver A. No. Q. Do you recall to any extent the layout of the Shreveport facility where the roofing cements and coatings that contained asbestos were made? A. No. Q. Do you recall to any extent whether there was any sort of ventilation in that area of the Shreveport facility where asbestos-containing cements or coatings were made? 10 A. I don't recall, no. 11 Q. Has Bird ever employed, to your 12 knowledge, an industrial hygienist? 13 A. No. 14 Q. At any time during your tenure with the 15 company did Bird ever employ a safety director or 16 some other person 17 A. Yes. 18 Q. -- whose sole responsibility was safety? 19 A. Yes. 20 Q. Did that position exist with the company 21 when you joined it in 1941? 22 A. Yes. 23 Q. Do you recall who was safety director in 24 1941? FRITZ & SHEEHAN ASSOCIATES, INC. 30 Leonard Weaver 1 A. Yes. 2 Q. Who was it? 3 A. It was a man named Frank Eisenhauer, 4 spelled a-u-e-r, not like the President; 5 E-i-s-e-n-h-a-u-e-r. He was replaced in later 6 years by a man named Roby, Bob Roby, and I don't 7 know how long he worked for the company. 8 Q. In 1941 did Frank Eisenhauer have an 9 understanding that the inhalation of asbestos 10 fibers could cause injury to the body? 11 A. I have no -- 12 MR. CLARY: Whoa, whoa. You've got 13 to give me a chance to object. Objection, 14 speculation. Now you can answer. 15 A. I don't know. 16 Q. Do you recall when Bob Roby became the 17 safety director? 18 A. I assume it was on the retirement of 19 Eisenhauer but I don't know the dates. 20 Q. Would you happen to know the decade in 21 which that occurred? 22 A. The '60s or the '70s, but I don't know. 23 I wasn't involved in that work. 24 Q What was the general job description or FRITZ & SHEEHAN ASSOCIATES, INC. 31 Leonard Weaver 1 duties of the safety director for Bird? 2 A. I don't know. 3 Q. During your tenure with Bird, did Bird 4 ever perform or have performed on its behalf any 5 tests or studies in regard to the running of 6 asbestos felts in a mill -- 7 A. I don't know. 8 Q. -- in the manufacturing process? I'm 9 going to start all over and ask both of you to wait 10 until I finish my question. Okay? 11 MR. CLARY: When I do that, I want 12 you to just give me a pause before you respond. 13 And you're even responding to him before he's 14 finishing his question. I understand you know the 15 course of the question before it's completed. But 16 please wait and give me my opportunity. 17 BY MR. CARONA: 18 Q. During your entire tenure with Bird, did 19 Bird ever perform or have performed on its behalf 20 any studies or tests as to the running of asbestos 21 felts through the machines in the Bird plants for 22 the purpose of determining the amount of asbestos 23 fiber release occurring as a result of that 24 process? FRITZ & SHEEHAN ASSOCIATES, INC. 32 Leonard Weaver 1 MR. CLARY: Let me object to it as 2 calling for speculation. It is overbroad, vague 3 and general; it is not time-specific and there has 4 been no foundation laid for this witness's 5 knowledge of that subject. 6 A. I don't know the answer to your question. 7 Q. Was it ever a part of your job to respond 8 to consumer complaints about Bird products? 9 A. Occasionally. 10 Q. And would that include Bird cements and 11 coatings? 12 A. No. 13 Q. Would it include Bird builtup roofs? 14 A. Only once or twice in my whole career. 15 Q What products did the complaints normally 16 pertain to? 17 A. Shingles. 18 Q. From what I understand, Bird at one time 19 made an asbestos-containing shingle called Fire 20 Screen. Do you recall that? 21 A. Yes. 22 Q. Do you know why the asbestos was_ removed 23 from that product? 24 A. The product did not perform FRITZ & SHEEHAN ASSOCIATES, INC. 33 Leonard Weaver 1 satisfactorily so it was discontinued. 2 Q. In regard to performance, what was wrong 3 with the product? 4 A. It failed prematurely on the roof. 5 Q. Was there any conclusion reached in terms 6 of the mode or cause of failure? 7 A. Yes. 8 Q. What was it? 9 A. The reason that it was made fire 10 resistant was they had a roofing granule and it was 11 coated in a special way that caused it to expand 12 when it was exposed to heat, and the manufacturing 13 process left that granule in an unstable condition 14 so subsequent weathering caused the roof shingle to 15 come apart within a matter of a very few years. So 16 we discontinued it. 17 Q. Was the mode of failure in regard to this 18 asbestos-containing shingle in any way related to 19 the asbestos fibers? 20 A. No. If anything, the asbestos improved 21 the weather resistance of the asphalt. 22 Q. Why was the asbestos taken out then? 23 A. The shingles were discontinued. 24 Q. Was Bird experiencing failure of the FRITZ & SHEEHAN ASSOCIATES, INC. 34 Leonard Weaver 1 shingles out in the field in terms of shingles 2 actually being installed on jobs? 3 A. The failures occurred within two or three 4 years after the roof was applied and the frequency 5 of failures was so great that Bird saw there was no 6 point in continuing manufacturing the product. 7 Q. Did Bird not test this asbestos- 8 containing fire shingle prior to putting it out on 9 the market to determine whether it had stability? 10 A. We tested it, but the particular types of 11 tests that we ran did not forecast the problems. 12 Q. Back at the time that the Fire Screen 13 asbestos-containing shingle was being made and 14 marketed by Bird, were there any types of tests 15 that could be performed by Bird that could simulate 16 a weathering of the product? 17 A. Yes. 18 Q. Tell me what those types of tests are. 19 A. There are two kinds. We had an outdoor 20 test rack facing south at a 45-degree angle or 21 thereabouts. 22 Q. Facing south? 23 A. South. In other words, they were out 24 there, well, they weren't quite 45 degrees, about FRITZ & SHEEHAN ASSOCIATES, INC. 35 Leonard Weaver 1 30 degrees, and samples of the material to be 2 tested were installed on the racks and observed 3 periodically, and the exposure conditions gave a 4 little bit of a forecast as to how durable the 5 product was but not much faster than it would 6 deteriorate in real life. But we had to do that in 7 order to give ourselves an idea under controlled 8 conditions because we didn't know what became of 9 the shingles after they were sold and it was hard 10 to evaluate them until a complaint came in. So we 11 exposed them on these test decks. And the other 12 test was an accelerated test indoors in a container 13 with artificial illumination and other components 14 of the weather. 15 Q. Bird knew at the time that it was 16 marketing these asbestos-containing shingles that 17 the shingles would be exposed to the rain, the 18 wind, and the ultraviolet rays from the sun? 19 A. Yes. 20 Q. All three of which can weather the 21 product? 22 A. Yes. Temperature change also. 23 Q. Expansion and contraction within the 24 product itself? FRITZ & SHEEHAN ASSOCIATES, INC. 36 Leonard Weaver 1 A. (Witness nodded.) 2 Q. Is that right? 3 A. Yes. 4 Q. In terms of the accelerated test, let me 5 make sure I understand this. Would Bird subject 6 the shingle to a degree of illumination that would 7 simulate the amount of, say, ultraviolet rays that 8 the product would receive over an extended period 9 of time? 10 A. On a greatly accelerated basis. They 11 used a mercury arc lamp for the source of 12 ultraviolet light. 13 Q. Is it correct that the ultraviolet rays 14 degrade the asphalt? 15 A. It is. 16 Q. And that degradation of the asphalt 17 manifests itself in a hardening, cracking, and 18 otherwise deterioration of the product? 19 A. Yes. 20 Q. And did Bird witness that phenomenon of 21 the deterioration of these felts as a result of the 22 accelerated test? 23 A. Now, are you referring to the specific 24 product you've been talking about or any product in FRITZ & SHEEHAN ASSOCIATES, INC. 37 Leonard Weaver general? Q. Any product. A. Yes. That's the purpose of them. The machine was in the laboratory and there was one person assigned to the job of monitoring it and putting samples in and taking them out and reporting on their condition. Q. Where was the accelerated testing equipment located? 10 A. In the laboratory. 11 Q. In this same building that we've been 12 talking about where you worked at? 13 A. Yes. 14 Q. Prior to putting that Fire Screen 15 asbestos-containing shingle out on the market, did 16 Bird perform the accelerated test on the Fire 17 Screen shingle? 18 A. Yes. 19 Q Did the accelerated test show to Bird 20 that there would be a premature deterioration of 21 the product? 22 A. Obviously it couldn't have or we wouldn't 23 have put it out. 24 Q Tell me some of the other types of FRITZ & SHEEHAN ASSOCIATES, INC. 38 Leonard Weaver 1 products other than the Fire Screen shingle that 2 Bird tested either by way of the outdoor test or 3 the accelerated test? 4 A. Well, the main purpose of the accelerated 5 testing was for the evaluation of asphalt itself 6 without protection from the UV. In other words, 7 that is where the accelerated weathering worked the 8 fastest and we could evaluate one asphalt versus 9 another, and that was the primary purpose. Then 10 virtually everything that we needed to test or to 11 subsequently put out to the weather was at one time 12 or another subjected to that test. 13 Q. Did Bird ever test any of its asbestos- 14 containing roof cements or coatings by either the 15 outdoor test or the accelerated test? 16 A. No. In the first place, they weren't 17 exposed to the weather; they were always covered up 18 by another piece of roofing so there would be no 19 point in it. 20 Q. We have three cans with us that have been 21 marked in the deposition of Mr. Patenaude that we 22 took earlier today. Patenaude Exhibit No. 5 is 23 Neponset cold cement. Exhibit No. 6 is roof 24 coating asphalt asbestos Fibred. And Exhibit 7 is FRITZ & SHEEHAN ASSOCIATES, INC. 39 Leonard Weaver 1 Fibred roof coating. By the way, in terms of 2 Exhibit 7, does the use of the word Fibred indicate 3 to you that this product contains asbestos? 4 A. Not necessarily. 5 Q. These cans would indicate to me that one 6 of their uses is to be used as a surface material. Am I misreading it? 8 A. The roof coating, it probably tells you 9 right on the side what it's used for, and I do 10 believe that is mostly intended to be used for 11 patchup jobs temporarily, not for a permanent 12 installation. 13 Q. Not original installation? 14 A. No, no. If you had a partially weathered 15 builtup roof and you wanted to extend its life for 16 a year or two, you'd put the roof coating on it and 17 smear it around and hope. 18 Q Now, that smeared roof coating, that 19 would be exposed to the ultraviolet rays of the 20 sun? 21 A. Yes. 22 Q One of the uses set forth on Exhibit 5 in 23 regard to the Neponset cold cement is for repairing 24 roll roofing laps that are leaking. Is it your FRITZ & SHEEHAN ASSOCIATES, INC. 40 Leonard Weaver 1 understanding in part that this product also, if 2 used for repair purposes, can be exposed to the 3 ultraviolet rays of the sun? 4 A. Only insofar as a little of it might have 5 leaked out under the edge of the product to be laid 6 down. But that was for the express purpose of 7 cementing two layers together. 8 Q. All three of these cans of products, 9 Patenaude Exhibits 5, 6 and 7, they're used 10 primarily for repair purposes. Is that correct? 11 A. Not necessarily, no. The cold cement was 12 used for the installation of a two-ply builtup 13 roof, which is the economy type roof, but it's used 14 for farm buildings and stuff like that. 15 Q. The Neponset cold cement would never be 16 used on a three- or four-ply builtup roof as the 17 interply bitumen, would it? 18 A. No. 19 Q To your knowledge, has Bird ever 20 performed or had performed on its behalf any test 21 or study to determine the amount of asbestos fiber 22 release that occurs as a result of the weathering 23 or deterioration of any of its asbestos-containing 24 cements or coatings? FRITZ & SHEEHAN ASSOCIATES, INC. 41 Leonard Weaver 1 A. I don't know. I doubt it. 2 Q. Were you ever involved at any time in the 3 creation or implementation of any sort of 4 respiratory protection program on behalf of Bird? 5 A. Not directly; only insofar as I ran these 6 dust counts at the granule plant and a few at the 7 cement plant. 8 Q. Do you know whether any of these types of 9 asbestos dust counts were ever taken at the 10 Shreveport plant? 11 A. No. 12 Q. Was it ever your practice at any time in 13 your tenure at Bird to attend board meetings? 14 A. Corporate board meetings? 15 Q. Yes, sir. 16 A. I don't think I ever did. Even towards 17 the time of my retirement I don't think I then got 18 into the board meetings, no. They were sort of a 19 select club. You can keep that off the record! 20 Q. Were you ever involved on behalf of Bird 21 in terms of its sales and marketing of its 22 products? 23 A. Marketing? 24 Q. Yes, sir. FRITZ & SHEEHAN ASSOCIATES, INC. 42 Leonard Weaver 1 A. Yes. 2 Q. In what way did you have involvement in 3 marketing? 4 A. It primarily involved telling the 5 salesmen about the qualities of the product they 6 should know in order to more properly merchandise 7 it. 8 Q Your involvement in terms of marketing 9 was to educate the salesmen so that they could 10 better promote the products? 11 A. Right. 12 Q. Did you have any other involvement in 13 marketing? 14 A. Well, we conducted a few market research 15 studies of plastics products. 16 Q. What types of plastics products? 17 A. Vinyl siding and related products. 18 Q Did any of these market studies pertain 19 to any asbestos-containing products? 20 A. No. 21 Q. Did you ever have any involvement on 22 behalf of Bird in determining what type of 23 warnings, if any, should be placed on the 24 containers of Bird's asbestos-containing products? FRITZ & SHEEHAN ASSOCIATES, INC. 43 Leonard Weaver 1 A. No. 2 (In recess 4:55 p.m. to 5:35 p.m.) 3 BY MR. CARONA: 4 Q. Mr. Weaver, in terms of that dust counter 5 that you mentioned earlier, do you recall what that 6 device was called? 7 A. It was made by Bausch & Lomb and I can't 8 tell you specifically what the title of it was, but 9 it was a small unit with a built-in magnifier and a 10 suction pump which enabled you to go to the source 11 where the dust was being generated, and you had a 12 little translucent disk that you made a quick pull 13 on the suction device and that dust sample was 14 impinged upon the glass, which was ruled off into 15 rectangular grids. Then you put a light under it 16 and looked at it through the microscope and counted 17 the little grains that you saw in those grids. 18 Q. If I understood you correctly, you're 19 saying that in 1941 when you first joined the 20 company Bird was using this dust counter. Is that 21 correct? 22 A. That's correct. 23 Q. And in 1941 Bird was providing to its 24 employees dust masks? FRITZ & SHEEHAN ASSOCIATES, INC. 44 Leonard Weaver 1 A. Yes. 2 Q. You indicated earlier that you worked 3 with salesmen in terms of educating them about the 4 Bird products. 5 A. Yes. 6 Q. Did you ever discuss with the Bird 7 salesmen the issue of asbestos as contained in the 8 products? 9 A. No. 10 Q. The limits that you referred to earlier 11 that the asbestos dust samples were compared to, do 12 you recall what the limits were? 13 A. No. 14 Q You indicated earlier that you personally 15 participated in taking some of these asbestos dust 16 samples in the very beginning of your career with 17 Bird. 18 A. Yes. 19 Q. Which meant early 1940s. Right? 20 A. Right. 21 Q. Now, beyond that time period do you know 22 whether anyone with Bird had any responsibility for 23 continuing to take those types of asbestos dust 24 samples? FRITZ & SHEEHAN ASSOCIATES, INC. 45 Leonard Weaver A. I can't answer that question honestly. don't know. It was out of my jurisdiction. MR. CLARY: I think he said earlier that it went to quality control at a later date. He's saying he didn't know who within quality control. BY MR. CARONA: Q. And you don't know whether anyone within quality control continued to take such asbestos 10 dust samples, do you? 11 A. I don't know. 12 Q. Is it correct that you stopped taking the 13 asbestos dust samples in the early 1940s? 14 A. Probably by the mid 1940s it was turned 15 over to other people. 16 Q. I am going to ask that you look at what 17 has been marked as Hartnett Exhibit No. 3, the 18 first page of which is a letter dated February 2, 19 1979, from Edwin Haffner of Haffner Industries, 20 Inc. to yourself, Leonard Weaver. Is that correct? 21 A. Mm-hmm, yes. 22 Q And the third page of which is a copy of 23 a page out of Plastics Design Forum which contains 24 your letter to the editor of that magazine. Is FRITZ & SHEEHAN ASSOCIATES, INC. 46 Leonard Weaver 1 that right? 2 A. Oh, yes, yes. This is continued from 3 another page which is not here. Here is my 4 letter. 5 MR. CLARY: It is the complete text, 6 though. 7 BY MR. CARONA: 8 Q. The last page of Hartnett Exhibit 3 is 9 your letter to the editor of Plastics Design Forum? 10 A. This is it, yes. That is what Mr. Clary 11 showed me yesterday. He did not show me this. 12 Q. Your letter which is Bates-stamped 1056, 13 dated November 16, 1978, to the editor of Plastics 14 Design Forum, it was actually printed and published 15 in Plastics Design Forum. Is that right? 16 A. I had forgotten it but it obviously was. 17 Here it is, yes. 18 Q. Is Plastics Design Forum a periodical 19 that you subscribed to? 20 A. Yes. As soon as we got involved with 21 vinyl siding, which was about in 1960, much of my 22 attention went in that direction, in that family of 23 plastics. And the plastics industry has a lot of 24 trade journals which people who are connected with FRITZ & SHEEHAN ASSOCIATES, INC. 47 Leonard Weaver the business can get free subscriptions to, and so we got half a dozen different copies of different trade journals on the basis of that and read them quite thoroughly for what we could learn. Q. In your letter to the editor of Plastics Design Forum you were obviously responding to discussions of asbestos that had previously appeared in that periodical? A. Yes. 10 Q. And from your letter it would appear to 11 me as if generally you were stating that although 12 that periodical was somehow indicating that the 13 hazards of asbestos was something that was kind of 14 new and on the forefront, that was not true, that 15 it had been well-known for quite some time? 16 A. My main thesis was the fact that there 17 was a hysteria being generated about asbestos 18 fibers and a large amount of public opinion 19 directed to eliminating it from everything, and 20 I was trying to point out that there are certain 21 places where asbestos has some valuable uses and by 22 proper handling of it, it could be used without 23 hazard. And that was the sum and substance of that 24 letter. FRITZ & SHEEHAN ASSOCIATES, INC. 48 Leonard Weaver 1 Q. In your letter to Plastics Design Forum 2 you state in part, quote, "In the first place, the 3 recognition of the hazardous nature of asbestos is 4 belated to say the least. It was back in the 1930s 5 that public health officials identified most of the 6 problems related to asbestos fiber and the more 7 enlightened industrial firms took steps to protect 8 the health of the workers." 9 A. Yes. 10 Q You were attending college in the late 11 1930s at M.I.T. - 12 A. Yes. 13 Q. and you learned therein about some of 14 the health hazards associated with the use of 15 asbestos? 16 A. Yes. 17 Q. And you also learned in the late 1930s 18 that there were some companies who dealt with 19 asbestos regularly who were taking some steps to 20 protect their employees against the inhalation of 21 asbestos? 22 A. This was information I was getting in 23 lectures by the professors at M.I.T. It wasn't a 24 direct contact, but that's where I got the FRITZ & SHEEHAN ASSOCIATES, INC. 49 Leonard Weaver 1 information. 2 Q. And also through the trade journals that 3 you read? 4 A. Before I went to work for Bird I had no 5 contact with trade journals. 6 Q. Then the trade journals that you 7 referenced earlier wherein you continued to learn 8 about the hazards of asbestos, those were journals 9 that you received while working for Bird? 10 A. Right. 11 Q. Now, you know that Bird was using 12 asbestos fibers in its roofing cements and coatings 13 in the 1930s. Right? 14 A. Yes. 15 Q. All throughout the '30s? 16 A. Yes. 17 Q. And even in the 1920s? 18 A. I don't know. I didn't have any copies 19 of the formulations then; I don't know what they 20 used. 21 Q. In 1941 when you joined the company, was 22 Bird taking steps to protect the health of its 23 employees against exposure to asbestos? 24 A. Yes. FRITZ & SHEEHAN ASSOCIATES, INC. 50 Leonard Weaver Q. What steps did it take? A. The issuance of dust masks. BY MR. CLARY: Q. And the dust sampling? A. Pardon me? Q. And the dust sampling you talked about earlier? A. Oh, yes. Well, they had to find out whether there was any hazard involved so they did 10 the sampling of the dust. But the issuance of dust 11 masks was the direct protection that the employees 12 were getting. 13 BY MR. CARONA: 14 Q. Did you ever have any discussions with 15 any Bird employees about the need or desire to 16 remove asbestos from any of its products other than 17 the asbestos-containing Fire Screen shingle 18 previously discussed? 19 A. No. 20 Q Did you ever attend any meetings of any 21 professional associations or organizations wherein 22 discussions were had concerning the applicability 23 of OSHA regulations to asbestos-containing roofing 24 products? FRITZ & SHEEHAN ASSOCIATES, INC. 51 Leonard .Weaver 1 A. No. 2 Q. Did you have any involvement on behalf of 3 Bird in determining the applicability of OSHA 4 regulations to Bird's asbestos-containing roofing 5 products? 6 A. No. 7 Q. Are you familiar with the fiber types of 8 asbestos used by Bird in its cements and coatings? 9 A. Only vaguely. 10 Q. What do you recall, if anything, about 11 the fiber types used? 12 A. There were different fibers and I don't 13 remember their designations, but they mostly 14 involved different fiber length, and by controlling 15 the length of the fiber involved you got different 16 effects on the viscosity of the product you were 17 making. 18 Q. Do you have any recollection of the fiber 19 lengths that were used? 20 A. Specifically, no. 21 Q. There was a range of fiber lengths that 22 were used in the various products. Right? 23 A. They were controlled by the manufacturer 24 of the fiber itself and classified by designations, FRITZ & SHEEHAN ASSOCIATES, INC. 52 Leonard Weaver 1 depending on who the particular outfit was. But 2 they had certain specifications of screen analysis 3 and things like that that they had to meet. So our 4 quality control people would test that screen 5 analysis and they had a property that they 6 measured, the absorption of an amount of kerosene 7 under certain controlled conditions which measured 8 some of the characteristics of the fiber that we 9 were getting. And those tests were used to make 10 sure that the particular fiber that was being sent 11 to us met those specifications. 12 Q. But, again, in terms of the lengths of 13 the fibers you don't have any recall? 14 A. (Witness shook head.) 15 Q. Is that correct? 16 A. That's right. I don't know. 17 Q. Is it correct that you don't know what 18 type of fiber was used? 19 A. By type, what do you mean? 20 Q. Are there types of asbestos fibers? 21 A. Yes, there are several, depending upon 22 the mineral that was used to make the asbestos 23 fiber, but I'm not conversant with those. I mean, 24 I learned them on an academic basis in school and FRITZ & SHEEHAN ASSOCIATES, INC. 53 Leonard Weaver 1 promptly forgot them after that. 2 Q. You can't tell us today what types of 3 asbestos fibers were used by Bird in its products? 4 A. No. 5 Q. Did you ever see, Mr. Weaver, any 6 warnings placed on the bags of asbestos fibers received by Bird from asbestos suppliers concerning 8 the health hazards associated with asbestos? 9 A. No. 10 Q. Did you know Mr. Fred Turco? 11 A. Yes. 12 Q. What was Mr. Turco's job? 13 A. Most of the time that I knew him he was 14 foreman of a machine which manufactured insulating 15 siding, brick or stone pattern siding. 16 Q. Do you recall Dr. Peter Lambert? 17 A. No. I have heard the name but that's 18 all. 19 Q. Have you ever been advised as to whether 20 Mr. Turco was diagnosed with asbestosis? 21 A. No. 22 Q. We're just about through, sir. (Pause) 23 Just to be clear, I understand from 24 what you've testified to that you were never FRITZ & SHEEHAN ASSOCIATES, INC. 54 Leonard Weaver 1 involved in any discussions with anyone about the 2 need or desire to remove asbestos from any of 3 Bird's asbestos-containing products for the purpose 4 of reducing its liability exposure? 5 A. That's right. 6 Q. During your entire tenure with Bird from 7 1941 to 1982, did Bird ever warn by way of its 8 container labels or its literature or in any other 9 way purchasers or users of its asbestos-containing 10 products about the hazards associated with the 11 inhalation of asbestos fibers? 12 A. Not to my knowledge. 13 Q. During your entire tenure with Bird from 14 1941 to 1982, did Bird ever instruct purchasers or 15 users of its asbestos-containing cements and 16 coatings, shingles or felts as to how to protect 17 him or herself from exposure to asbestos fibers 18 when using, repairing, or removing those products? 19 MR. CLARY: Let me just object that 20 it calls for speculation and that it is vague as to 21 the time specificity and assumes facts that are not 22 in evidence. Go ahead. 23 A. The answer is no. 24 MR. CARONA: Mr. Weaver, I reserve FRITZ & SHEEHAN ASSOCIATES, INC. 55 Leonard Weaver 1 all other questions until the time of trial, and 2 I thank you for your time. I'll pass the witness. 3 MR. CLARY: Paul? 4 MR. HENDERSON: Can we take about a 5 two-minute break? I'd like to talk to Don. I may 6 have some questions. 7 MR. CLARY: Sure. 8 (Pause) 9 EXAMINATION 10 BY MR. HENDERSON: 11 Q. Mr. Weaver, my name is Paul Henderson and 12 I have just a couple of questions that I wanted to 13 ask you. Were you ever involved in any research or 14 testing of your competitors' products during the 15 years you were with Bird? 16 A. Yes. 17 Q. Was that part of your job? 18 A. Only peripherally, but I did a bit of it. 19 Q. Would that have started like in 1941 or 20 soon thereafter? 21 A. Probably. 22 Q. Did that continue on up into '82 or 23 thereabouts? 24 A. If it did it was because people who were FRITZ & SHEEHAN ASSOCIATES, INC. 56 Leonard Weaver 1 working with me were doing it under my direction. 2 I wasn't personally doing it. 3 Q. When you would do this testing and 4 examination of your competitors' products, would 5 that involve the shingle line of products as we've 6 talked about, the three-tab shingles or the regular 7 roofing shingles as well as the roof coatings and 8 cements? 9 A. The shingles almost exclusively. The 10 roof coatings and cements were such a standardized 11 product line that nobody really paid much attention 12 to them. 13 Q. Would you agree with me -- and I believe 14 the testimony today and through the testimony of 15 some other people that we've heard -- that as to 16 the shingles, basically there was only one Fire 17 Screen type that they used that contained asbestos? 18 A. That is correct. 19 Q. You may can help me pinpoint the time 20 frames a little better, but I understand they 21 stopped using asbestos in that particular Fire 22 Screen shingle in around 1972. If you know. 23 A. I don't know. 24 Q. Let me work backwards then. Do you FRITZ & SHEEHAN ASSOCIATES, INC. 57 Leonard Weaver 1 recall when they started using asbestos in that 2 particular Fire Screen shingle? 3 A. My guess would be -- and I would have to 4 guess -- several years prior to discontinuing it 5 and that initial stage involving some test runs of 6 trial lots and testing them in Underwriters for 7 flammability before it was put on the market. And 8 I don't know the dates and I don't know how long it 9 was on the market before it was discontinued. 10 Q. But basically Bird made quite a number 11 and a large part of their shingle production were 12 non-asbestos roofing shingles? 13 A. I would say 99 percent. 14 Q And those all performed over the years up 15 to expectations that y'all at least had, the 16 standards y'all had, and if they didn't they were 17 pulled off the market. Is that right? 18 A. Yes. Anything that didn't perform 19 correctly, the buyer, if they complained, it was 20 satisfied by remaking them. 21 Q. Right. But I mean the non-asbestos 22 shingles, as I understand, performed up to your 23 standards all those years that y'all were 24 manufacturing them at least from the time you FRITZ & SHEEHAN ASSOCIATES, INC. 58 Leonard Weaver started until the time you left? 2 A. Yes. Q In that same time frame, as I understand, 4 the roof cements and the roof coatings were 5 available at least through Bird or through the 6 people you arranged with to manufacture them for 7 you in a Fibred or an un-Fibred formula. Is that 8 correct? 9 A. Correct. 10 Q. And likewise, as I understand, your 11 competitors would have non-asbestos roof coatings 12 and cements and asbestos-containing roof coatings 13 and cements as well? 14 A. I believe the products were 15 interchangeable. 16 Q. And that was my question. Basically, as 17 I understand -- and correct me if I'm wrong 18 generally the non-asbestos-containing roof coatings 19 and cements performed at least equal to or 20 substantially equivalent to the asbestos-containing 21 roof coatings and cements? 22 MR. CLARY: Let me just first 23 interpose, and I'm sorry I cut you off a little 24 bit. That question calls for speculation. It is FRITZ & SHEEHAN ASSOCIATES, INC. 59 Leonard Weaver certainly vague as to time specificity and which products are being referred to. Based on that objection, you can answer. A. I have no way of knowing, because the removal of the fibers from the cement took place on or about the time I retired and the whole product was out of my jurisdiction so I wasn't really concerned with it. Q Is it correct you indicated earlier, as 10 I understood, that the asbestos-containing and the 11 non-asbestos-containing roof coatings and cements 12 were used interchangeably. Is that correct? 13 A. That's wrong. 14 Q That's wrong? All right. 15 A. While we were making asbestos fiber 16 coatings and cements we made a certain percentage 17 of coatings which contained no asbestos. Now, each 18 one had its own specified use and they were not 19 interchangeable. Subsequently when Bird purchased 20 for resale cements that didn't contain asbestos 21 fiber, I don't know what happened, what the 22 performance was. 23 Q. Did you ever hear any complaints at least 24 in your position in the company or even since FRITZ & SHEEHAN ASSOCIATES, INC. 60 Leonard Weaver you've left the company from people who were still working for Bird about the non-asbestos-containing cements and coatings? A. No. Q You're not aware of any performance complaints anyway as you sit here today? A. I knew nothing of its performance properties whatever. Q. Likewise, am I correct, no one ever 10 received any complaints or became aware of any 11 complaints of the non-asbestos-containing products? 12 A. That's right. 13 Q. By the way, going back into 1982 and 14 let's kind of work back, were there companies who 15 made roof coatings and roof cements that you tested 16 or were aware of that did not contain asbestos? 17 A. I don't know. 18 Q. You don't know either way? 19 A. No. 20 Q. Do you know who may know one way or the 21 other concerning that? 22 A. Most of my associates at the time are 23 dead right now. So I tell you I don't think you 24 could find the records of what went on and what FRITZ & SHEEHAN ASSOCIATES, INC. 61 Leonard Weaver 1 happened. 2 Q. Let me ask you one other thing. Is it 3 your understanding at least that around 1982, 4 around that time, that Bird was beginning to 5 produce and arrange for the purchase for resale of 6 these type of products that were asbestos-free? 7 A. I don't know. 8 Q. Well, I thought you indicated earlier 9 that they were producing or beginning to produce or 10 buying for resale when you left non-asbestos- 11 containing cements and coatings. 12 A. Any information I had on that subject was 13 strictly hearsay from the people who were involved 14 in it and I don't want to go on record as knowing 15 anything about it. 16 Q. Okay. Let me ask you this: Going to 17 your letter of November 16th of '78 you indicate -- 18 Well, before I ask you that, during the years you 19 were at Bird did you come to learn when fiberglass 20 became commercially available? 21 A. I was aware of its introduction, yes. 22 Q. Do you recall that being sometime around 23 the 1938 era? 24 A. Sounds early to me. Well, for house FRITZ & SHEEHAN ASSOCIATES, INC. 62 Leonard Weaver insulation it might have been, but for roofing products it was much later than that, to my knowledge. Q. Do you recall what year they may have started using asbestos insulation or -- excuse me -- fiberglass in roofing products? A. In shingles it would have been in the 1970s, I believe. Q. What did they use prior to 1970 in place 10 of fiberglass? 11 A. The standard basic for shingles was a 12 felt, a so-called felt made of paper fibers and 13 organic materials and it was gradually replaced by 14 a fiberglass mat at about that time. 15 Q. Sometime in the 1970s? 16 A. I think so. 17 Q. In your letter of November 16, 1978, you 18 indicate that there is a disproportionate amount of 19 pride in people discussing them eliminating 20 asbestos fiber from their products. Do you recall 21 writing that in that letter? 22 A. Yes. I have it right here. 23 Q. Okay. Let me ask you: At least from 24 your perspective and in your experience, isn't the FRITZ & SHEEHAN ASSOCIATES, INC. 63 Leonard Weaver most acceptable way to deal with a substance that's hazardous in a product is to first try and see if it can somehow be eliminated or find a substitute for that product? A. Oh, you can do research on it to find out whether there are any acceptable substitutes. But in the meantime the onus is on the manufacturer to find the most satisfactory ways of handling it with the least amount of hazard to the people who are in 10 contact with it. 11 Q. And that would be all people, the .0" 12 employees and also the people who may be exposed 13 otherwise. Is that correct? 14 A. Yes. 15 Q. But in answer to my question, the first 16 line of safety is to eliminate the hazardous 17 product if at all possible. Is that correct? 18 A. If possible. But that big "if" is it. 19 There are many hazardous materials in the world 20 right now that if you were eliminating them all, 21 like radioactive substances, for instance, you 22 would do a lot of damage to civilization. 23 Q. Of course I'm going to object to that as 24 being nonresponsive. I specifically asked you as FRITZ & SHEEHAN ASSOCIATES, INC. 64 Leonard Weaver to safety of products such as removal of asbestos. A. Well, if I had a say in the matter, I would stick to the principle I put out here. The first onus is to treat it safely. The second onus is to look for satisfactory substitutes if you can find a satisfactory substitute without damaging the characteristics of the product you make. If you cannot, then somebody's got to make a decision as to where we go from there. 10 Q. But replacement again is replacement of 11 the product either by substitution or either it can 12 be eliminated if it's not necessary. Is that 13 right? 14 A. If possible. 15 MR. CLARY: Objection, asked and 16 answered. 17 MR. HENDERSON: That's all I have. 18 EXAMINATION 19 BY MR. CLARY: 20 Q. Let me ask you a question. During your 21 time at Bird did you test the cements and coatings 22 that did not contain asbestos? 23 A. Now, in reference to that, are you 24 talking about the material that was made following FRITZ & SHEEHAN ASSOCIATES, INC. 65 Leonard Weaver 1 the elimination of asbestos from the coatings? 2 Q. Let me ask you, for example, during the 3 1970s did Bird make some coatings and cements that 4 did not contain asbestos? 5 A. I don't know. I was not involved with 6 it. Q. Let me ask you this: In your 41-year 8 career with Bird did you get a chance to meet and 9 get to know numerous employees of Bird? 10 A. At the company? 11 Q. Yes. 12 A. Oh, yes. 13 Q. Have you in your 41 years with Bird and 14 your 14 years of retirement from Bird been made 15 aware of anyone who has ever claimed that they 16 contracted cancer from working at a Bird facility? 17 A. No. 18 Q. Have you in your 41-year tenure with Bird 19 and your years of retirement since that time heard 20 of any allegation that anyone contracted any form 21 of cancer from using a Bird product? 22 A. No. 23 Q. In your 41-year tenure with Bird and your 24 years of retirement since then, have you ever heard FRITZ & SHEEHAN ASSOCIATES, INC. 66 Leonard Weaver 1 of anyone alleging that a Bird product or asbestos- 2 containing Bird products led to a mesothelioma? 3 A. The term is not familiar to me. 4 MR. CLARY: That's all I have. 5 MR. CARONA: Does anyone else have 6 any questions? I have just a few follow-up. 7 FURTHER EXAMINATION 8 BY MR. CARONA: 9 Q. Mr. Roby that you referenced earlier who 10 was director of safety, where is he located? 11 A. I don't know. He may be retired by now. 12 He was probably working out of the corporate office 13 in East Walpole at the time he was working. 14 Q. You referenced the quality control 15 department earlier. Who was head of quality 16 control? 17 MR. CLARY: What time period? 18 Q Let's just start from the beginning, 19 1941. 20 A. From the beginning it was one laboratory 21 and all the functions were carried on under this 22 Mr. Reynolds whose name I gave you earlier. His 23 successor, Stanley Sallie, was also what they 24 called chief chemist, and everything we did, FRITZ & SHEEHAN ASSOCIATES, INC. 67 Leonard Weaver product development or quality control or anything else involving technical things, were under his jurisdiction. And then sometime in the early 1960s, I would say, two assistant chief chemists were appointed, one in charge of quality control and the other in charge of product development. I was the one who was put in charge of product development and another chap, who died last January, was in charge of quality control. 10 Now, a few years later there was a 11 complete split and Mr. Sallie was made product 12 development manager and I was given the title of 13 his assistant and the other chap was made quality 14 control manager and he took care of all the aspects 15 of that. And then after Mr. Sallie died 16 I inherited his position and so forth, and you know 17 that history. 18 Q. Have you been advised as to the 19 contentions of the Ellises in regard to this case? 20 A. Only just by mere suggestion from 21 Mr. Clary. 22 Q. Let me ask you to look at what's been 23 marked as Hartnett Exhibit 46, which is a memo 24 dated September 2, 1982, from Mr. Jackson to FRITZ & SHEEHAN ASSOCIATES, INC. 68 Leonard Weaver 1 Mr. Wood concerning, quote, "substitute for 2 asbestos fiber in Bird cements and roof coatings." 3 Have you ever seen that document before? 4 A. No. That came about after I retired. 5 Mr. Jackson was my assistant, inherited the job 6 after I retired. 7 Q. In this document Mr. Jackson states in 8 part, quote, "While I'm sure that our manufacturing 9 operation meets all OSHA requirements for employee 10 safety, I am wondering if some smart customer might 11 pick up the fact that as our roof coatings weather 12 they can possibly release some asbestos to the 13 atmosphere." Do you know what information 14 Mr. Jackson had that gave him the understanding 15 that as these coatings and cements weathered they 16 could release asbestos fibers? 17 MR. CLARY: I am going to object to 18 the form of the question as calling for 19 speculation. It also calls for facts that are not 20 in evidence. 21 A. I would say it was strictly guesswork on 22 his part. We never conducted any studies on the 23 subject. 24 MR. CARONA: Thank you. I have no FRITZ & SHEEHAN ASSOCIATES, INC. 69 1 further questions on the subject. Pass the 2 witness. 3 MR. CLARY: You're done. 4 MR. CARONA: Thank you for your time, 5 sir. 6 (Deposition concluded at 6:20 p.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 FRITZ & SHEEHAN ASSOCIATES, INC. 70 Commonwealth of Massachusetts ) Suffolk County CERTIFICATE OF REPORTER I, J. Edward Varallo, Registered Professional Reporter and Notary Public in the Commonwealth of Massachusetts, do hereby certify that there came before me on January 31, 1995, at the time and place specified above, Leonard Weaver, the deponent herein, who was duly sworn by me- and thereafter examined by counsel for the respective parties; that the questions asked of said deponent and the answers given were taken down by me in Stenotype shorthand notes and thereafter transcribed and printed under my direction by use of computer-aided transcription. I further certify that the foregoing is a true and correct transcript of the testimony given at said examination of said deponent. I further certify that reading and signing of the deposition were waived by the deponent and counsel. I further certify that I am not counsel, attorney, or relative of either party, or otherwise interested in the event of this suit. EcK.rard Varallo Y COMMISSION EXPIRES: 2/3/95 DATED: 7,/n5. Proofreader: Laura Graf FRITZ & SHEEHAN ASSOCIATES, INC. 71 INDEX DEPONENT: Leonard Weaver PAGE Examination by Mr. Carona Examination by Mr. Henderson Examination by Mr. Clary 5 and 66 55 64 (There were no exhibits marked for identification. CERTIFICATE OF REPORTER PAGE 70 FRITZ & SHEEHAN ASSOCIATES, INC.