Document NeEE933QZN2Na7wgZ1XxjVgy8

Page 3 VIDEOTAPED DEPOSITION LOWELL D. GRAVES STATE OF NEW YORK SUPREME COURT : COUNTY OF ONONDAGA 1 2 3 4 5 6 7 CORRADO S. NIRO, Jr., Executor of the Estate of CORRADO S., NIRO, Sr., deceased, Plaintiff, - vs - Index Number 2002-1601 9 10 11 12 13 SURFACE COMBUSTION, INC., et al., 14 Defendant. 15 16 Videotaped deposition of LOWELL D. GRAVES, taken pursuant to Notice under Article 31 of the Civil Practice Law and Rules and NYCRR 202.15, in the offices of JACK W. HUNT & ASSOCIATES, INC., 1420 Liberty Building, Buffalo, New York, on October 27, 2003, commencing at 10:13 a.m., before LYNN M. MYERS, Notary Public. JACK W. HUNT & ASSOCIATES, INC. 17 18 19 20 21 22 23 Page 2 The following were marked for Identification: GRAVES EXH. 1 Notice of videotaped deposition testimony. GRAVES EXH. 2 Invoices and purchase orders. GRAVES EXH. 3 Correspondence. GRAVES EXH. 4 Affidavit on authentication of warning label. GRAVES EXH. 5 Photograph. L O W E L L D. G R A V E S, 535 Grandview Drive, Joplin, Missouri 64804, after being duly called and sworn, testified as follows: MR. WHITCOMB: Before we start, Mr. Comerford, I just want to confirm, this is - this is a discovery deposition that you're taking here and that's how you noticed it. I would like to preserve all my objections as to the manner of formal noticing it, and my understanding is that all objections, except as to form, are reserved until the time of trial. Is that -- that how you understand we're conducting this deposition? Page 4 1 APPEARANCES: LIPSITZ & PONTERIO, LLC, By JOHN P. COMERFORD, ESQ., 2 135 Delaware Avenue, Suite 210, Buffalo, New York 14202, 3 Appearing for the Plaintiff. 4 PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER, LLP, 5 By JAMES W. WHITCOMB, ESQ., 3400 HSBC Center, 6 Buffalo, New York 14203, Appearing for the Defendant, 7 Surface Combustion, Inc. 8 GIBSON, McASKILL & CROSBY, LLP, By SHAMUS B. MULDERIG, ESQ., 9 69 Delaware Avenue, Suite 900, Buffalo, New York 14202-3866, 10 Appearing for the Defendant, Daimler Chrysler. 11 RIVKIN RADLER, 12 By MARY A. JEWELS, ESQ., EAB Plaza, 13 Uniondale, New York 11556-0111, Appearing for the Defendant, 14 Syracuse Supply. 15 16 PRESENT: STEPHEN P. HUNT, Videographer. 17 18 (STIPULATIONS: Waive filing and signing of 19 the transcript, waive Oath of the Referee, 20 reserve all objections until trial, with 21 exception of objections as to form, an 22 objection by one defense attorney is deemed 23 to be an objection by all.) 1 MR. COMERFORD: That is how I understand it. 2 I do ask the Defendants to please articulate any 3 objections as to form. This witness does reside in 4 Missouri. I'm not sure if he will be testifying 5 here at the time of trial in this case so, please, 6 any objections you have as to form, articulate them 7 so I can make a decision as to whether or not I will 8 seek to cure my question. 9 And I agree with Mr. Whitcomb that all 10 objections are preserved until the time of trial 11 except as to form. And an objection by one 12 Defendant is an objection by all. 13 MR. WHITCOMB: Okay. I guess, like I said, 14 I'm reserving -- certainly reserving all of my 15 objections to object to the admissibility of the 16 entire witness's testimony, but in any event, 17 proceed. 18 MR. COMERFORD: Thank you. 19 20 EXAMINATION BY MR. COMERFORD: 21 22 Q. Mr. Graves, my name is John Comerford, 23 and I have a few questions for you this morning. 1 (Pages 1 to 4) Graves - Comerford - 10/27/03 Page 5 Page 7 1 How are you today? 1 sir? 2 A. Fine. 2 A. They're in Joplin, Missouri. 3 Q. Sir, would it be okay if I asked you 3 Q. And what type of business is PK 4 some background questions? 4 Insulation in? 5 A. Absolutely. 5 A. We manufacture insulation products, 6 Q. Thank you. 6 residential, commercial and some specialty 7 Where were you born? 7 industrial products. 8 A. Rushville, Indiana. 8 Q. And what is your current position with 9 Q. And what is your date of birth? 9 this company? 10 A. September 5, '37. 10 A. I am a consultant to management and 11 Q. And how old does that make you today? 11 involved in specialty sales. 12 A. 66. 12 Q. Let's back up a little bit. What year 13 Q. And let's touch on your educational 13 approximately did you start working with PK 14 background, if I may, sir. Where did you graduate 14 Insulation? 15 from high school? 15 A. 1983. 16 A. St. Bernard High School in Cincinnati, 16 Q. And before that whom, if anyone, did you 17 Ohio. 17 work for? 18 Q. And did you go on for any college work? 18 A. I worked with Eagle-Picher from '62 to 19 A. I graduated from the University of 19 '83. 20 Cincinnati in 1960. 21 Q. And what was your degree in, sir? 20 Q. My questions for the most part, sir, are 21 going to focus from this point forward on your work 22 A. Bachelor of science, industrial 22 with Eagle-Picher. 23 management. 23 What business was Eagle-Picher in when Page 6 Page 8 1 Q. And, sir, did there come a time where 1 started working for them in 1962? 2 you began to work after college? 2 A. Well, the division that I went with with 3 A. Yes, as well as before. 3 Eagle-Picher, which was at that time a 4 Q. Let's -- let's start with your work, 4 multi-products manufacturer, was the industrial 5 if -- if we may, after college. Can you just give 5 insulation division. 6 me sort of a laundry list of whom you worked for and 6 Q. And where was this company located? 7 the approximate years you began working for the -- 7 A. Cincinnati, Ohio. 8 for the companies. 8 Q. And could you describe your work duties 9 A. Well, at the time of college in the '60s 9 with Eagle-Picher starting in 1962? 10 and late '50s, I was working with a company, 10 A. I was in the order department, manager 11 Cincinnati Butcher Supply, since I was going to a 11 of the order department, and customer service. 12 cooperative college, schoolwork. And after I 12 Q. And just so we're clear, what was your 13 graduated in '60, I stayed with them for a short 13 first title with Eagle-Picher in 1962? 14 period of time. Then went into the service. And 14 A. Manager, order department. 15 when I came out, shortly thereafter joined 15 Q. Okay. 16 Eagle-Picher Industries. 16 And can you just give me sort of a thumbnail 17 Q. And before we talk about Eagle-Picher 17 sketch we'll say from 1962 to 1975, and just walk 18 Industries, are you currently working today? 18 the jury through your positions, the years you had 19 A. I am. 19 those positions, and a thumbnail sketch of what your 20 Q. And who are you working for? 20 job responsibilities were? 21 A. I work part-time effective last October 21 A. Well, initially in the order department, 22 for PK Insulation Manufacturing Company. 22 you're processing orders and dealing with the field 23 Q. And P -- PK Insulation, where are they, 23 sales people on a daily basis as they called in 2 (Pages 5 to 8) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Comerford - 10/27/03 Page 9 Page 11 1 orders or request for quotations. I did that for - 1 Eagle-Picher 66 Cement? 2 from '62 to approximately '64. 2 A. Yes. 3 Then I was -- then I was named administrative 3 Q. Okay. And Eagle-Picher 66 Cement - 4 assistant to the general sales manager, which 4 what -- you started with the company in 1962. About 5 included overseeing the order and customer service, 5 what year did that product, Eagle-Picher 66, stop 6 but also doing special sales projects for the 6 containing asbestos? 7 general sales manager. 7 A. 1971. 8 After that I became manager of national 8 Q. And can you tell the jury a little bit 9 accounts, which the company sold a lot of product 9 about Eagle-Picher 66? For example, how did it come 10 under private label to other companies and my 10 packaged? 11 responsibility was dealing with them. 11 A. It was packaged in a 50-pound craft bag 12 After that I became assistant sales manager 12 with mixing instructions on it. 13 approximately '68 -- '67, '68. And in '71 I became 13 Q. And in using your hands, if you can, 14 vice president of sales. 14 just your hands, how tall was the bag, how wide was 15 Q. And as vice president of sales, just a 15 it? 16 thumbnail sketch of what your job responsibilities 16 A. Well, it would be like that and like 17 were? 17 that. 18 A. I -- well, I was responsible for all of 18 Q. Okay. 19 our field sales people and generating sales for the 19 And what was the common use of this product? 20 company. 20 A. Well, once it was mixed with water, it 21 Q. And how long did you hold that position 21 would be applied by trowel or what they call 22 to? 22 palming, using your hands, to put over other 23 A. Until '76. 23 insulation as a -- as a additional insulating and Page 10 Page 12 1 Q. Now, sir, I want to focus -- let's go 1 protective coating. And also on heated equipment 2 back to 1962 when you began working with 2 that might still be in operation, that could be 3 Eagle-Picher, if I may. 3 applied immediately, and then it would give it 4 Again, what type of business was Eagle-Picher 4 contin -- the equipment continued life until they go 5 in? 5 down for a complete rebuild or a reinsulate. 6 A. The insulation division manufactured 6 Q. Did there come a time when you, Lowell 7 industrial insulation products for power process and 7 Graves, you personally, became aware of the 8 related industries. 8 potential health hazards of asbestos? 9 Q. Did any of those products contain 9 A. Yes. 10 asbestos? 10 Q. And what year was that, sir? 11 A. They did. 11 A. It was 1964. 12 Q. And what products, if any, contained 12 Q. And why does 1964 stand out in your 13 asbestos that was manufactured by Eagle-Picher 13 mind, sir? 14 from -- in near and around 1962 when you began 14 A. Well, there was a -- a trade association 15 working with the company? 15 meeting, NIMA, which is National Insulation 16 A. The products that contained asbestos 16 Manufacturers Association, in Denver, Colorado, I 17 were the thermal insulating cements. 17 believe, that our general sales manager attended, 18 Q. And these cements, did they have any 18 and at that meeting Johns-Manville announced or at 19 particular trade name that they went by? 19 least expressed their concerns about the health 20 A. Our -- yeah, our products were named 66 20 hazards of asbestos and announced that they were 21 Cement, insulating cement, and One-Cote finishing 21 going to adopt a label on their products warning 22 cement. 22 against exposure to asbestos and things you should 23 Q. And were they commonly known as 23 do to protect yourself. 3 (Pages 9 to 12) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Comerford - 10/27/03 Page 13 Page 15 1 Q. And just so we're clear, this NIMA, 1 marked as Graves 5 as an exhibit today for 2 National Insulation Manufacturers Association, was 2 identification. May I please hand this to you? 3 Eagle-Picher a member of this association back in 3 A. Sure. 4 1964? 4 Q. Can you tell me what Exhibit 5 is? 5 A. Yes. 5 A. This is a reduced picture of a bag of 6 Q. And do you know, sir, who on behalf of 6 Super 66 insulating cement. 7 Eagle-Picher attended this Denver, Colorado meeting 7 Q. And focusing on Exhibit 5, sir -- well, 8 back in 1964? 8 let me back up. 9 A. John Harrington who at that time was 9 Is that a fair and accurate depiction of what 10 general sales manager. 10 an Eagle-Picher 66 Cement bag looked like from the 11 Q. And after this meeting occurred, did you 11 date 1964 to 1971? 12 become aware of what transpired at this meeting? 12 A. Yes. 13 A. Yes, I did. When he -- when he returned 13 Q. And have you ever seen that bag before 14 he sent internal bulletins to the key management 14 today? 15 people within the division at that time which 15 A. Yes. 16 clearly stated what Manville had announced and that 16 Q. Is that something that you saw on a 17 he was giving -- trying to get their opinion as to 17 regular course of business - 18 what they thought about it, and possibly -- and 18 A. Oh, yeah. 19 inferring that possibly we should do the same thing 19 Q. -- at Eagle-Picher? 20 because they know far more about it than we do as 20 A. Yes. 21 they also mined asbestos. 21 Q. And, again, based on your recollection 22 Q. And was a decision made by Eagle-Picher 22 and work history with Eagle-Picher, you believe 23 to incorporate any labeling procedure shortly after 23 that's a fair and accurate depiction? Page 14 Page 16 1 that 1964 NIMA meeting in Colorado? 1 A. Yes. 2 A. Yes, the decision was made to start 2 Q. And does that bag or that Exhibit 5 have 3 labeling shortly thereafter. 3 any cautionary warning on it? 4 Q. And what, if anything, was actually 4 A. It does. 5 labeled with a cautionary warning? 5 Q. And could you just read that cautionary 6 A. Well, initially because of having bag 6 warning to yourself, sir? Just take your time. 7 stock inventory, the -- a label was glued or stuck 7 Just to yourself. 8 to the bags, at least these cement products only. 8 A. To myself? 9 And then subsequently when the bags were reordered, 9 Q. Yeah,just to yourself first. And 10 the label was printed on the bag. 10 please tell me, where on the bag you're reading. 11 Q. And just so we're clear, when you say 11 Top the bag, bottom of the bag? 12 cement product, what specific product are you 12 A. I'm reading at the very bottom of the 13 discussing that was -- had the cautionary notice put 13 bag, it's below the product name, what it's used 14 on it? 14 for, and the mixing instructions. 15 A. Super 66 and One-Cote Cement. There 15 Q. Why don't you read the warning to 16 were some other cement products, but they were 90 16 yourself, if you would, sir. 17 percent plus of the activity. 17 A. It's such a -- it's so bright, this 18 Q. Okay. 18 photograph, it's difficult. 19 And, again, what year did this warning label 19 Q. Take your time. 20 go on the Eagle-Picher 66 Cement, sir? 20 A. Okay. 21 A. Well, it would -- it would have gone on 21 Q. Tell me when you're done. 22 sometime in the summer of '64. 22 A. I'm done. 23 Q. Sir, I'm going to show you what is 23 Q. Now, that particular warning you read on 4 (Pages 13 to 16) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Comerford - 10/27/03 Page 17 Page 19 1 Exhibit 5, is that -- have you ever seen that 1 BY MR. COMERFORD: 2 warning before? 2 Q. And was he well-known as far as you 3 A. Yes. 3 know -- knew by the NIMA members after 1964? 4 Q. Was that the warning that was actually 4 MR. WHITCOMB: Objection to the form. 5 on the Eagle-Picher 66 Cement bags from 1964 to 5 THE WITNESS: Well, I can't -- I can't speak 6 1971? 6 for the other ones, but he became well-known 7 A. Yes. 7 certainly in the industry because of this issue. 8 Q. And could you please read that out loud, 8 BY MR. COMERFORD: 9 sir, that warning? 9 Q. Sir, I'm going to change the focus of my 10 A. Caution. This product contains asbestos 10 questions, if I may. I'm almost through. 11 fiber. Inhalation of asbestos in excess -- in 11 Are you familiar with a company that 12 excessive quantities over long periods of time may 12 manufactured furnaces known as Surface Combustion? 13 be harmful. If dust is created when the product is 13 A. Yes. 14 handled, avoid breathing the dust. If adequate 14 Q. And how, if at all, did you become aware 15 ventilation control is not possible, wear a 15 of a company known as Surface Combustion? 16 respirator approved by the U.S. Bureau of Mines for 16 MR. WHITCOMB: I'll object to the form of 17 mononucleosis (sic) producing dust. 17 these questions. 18 Q. Sir, have you ever heard of a Dr. Irving 18 THE WITNESS: We -- we did bis with - 19 Selikoff? 19 business with them during my tenure there, directly 20 A. Yes. 20 and indirectly. 21 MR. WHITCOMB: Object to the form. 21 BY MR. COMERFORD: 22 BY MR. COMERFORD: 22 Q. When you say "we," does that include 23 Q. Let me rephrase the question. 23 yourself? Page 18 Page 20 1 Shortly after that warning was put on the 1 A. Well, yeah, somewhat. I mean, I dealt 2 bag, did you become aware of any physicians or 2 with them correspondence and telephone. I didn't 3 experts in the field who began to speak out about 3 call on them. We had a direct salesperson who did 4 asbestos? 4 that. 5 A. Yes. 5 Q. Were there occasions where you, Lowell 6 Q. And what person, if any, do you remember 6 Graves, actually wrote letters to Surface Combustion 7 hearing about after that warning was placed on the 7 at times? 8 bag? 8 A. I'm sure. 9 A. Well, Dr. Selikoff plus others. 9 Q. Sir, I'm going to show you what is 10 Q. Okay. 10 marked as Graves 3. Can you take a second to look 11 And, to your understanding, what did - 11 at -- it's two pieces of paper. And just look at it 12 approximately what year, approximately, did you at 12 yourself, and I'd like you to just become familiar 13 least become aware of the name Dr. Irving Selikoff? 13 with both those pieces of paper, if you could. 14 A. I'd say mid '60s. 14 Sir, I apologize. That exhibit's marked. 15 Q. Okay. And generally what was your 15 What's the number on that exhibit? 16 understanding about what he was saying? 16 A. Number 3. 17 A. Well, I think he was involved with - 17 Q. Thank you. Awful with numbers. 18 with Mount Sinai - 18 There's two letters in front of you, sir? 19 MR. WHITCOMB: Object to that question. 19 A. Yes. 20 THE WITNESS: -- and came out with papers 20 Q. Let's take these in chronological order. 21 expressing the fact that asbestos was harmful to 21 I think it's the second page. Could you tell me 22 your health and they'd done some studies, and so on 22 what that first letter is, and let's start off with 23 and so forth. 23 the date? 5 (Pages 17 to 20) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Comerford - 10/27/03 Page 21 Page 23 1 A. In chronological order? 1 if I may. 2 Q. Chronological order. 2 And, sir, looking at that letter, does that 3 A. First page. 3 sort of refresh your recollection either way on your 4 Q. Okay. I'm sorry. First page. 4 written communications at times with Surface 5 A. The date? 5 Combustion? 6 Q. Please. 6 A. Yeah. I mean, it's a typical copy of a 7 A. May 31, 1967. 7 letter of the original that was mailed to a customer 8 Q. And who, if anyone, is writing that 8 like Surface Combustion. 9 letter? 9 Q. And did you respond to that request by 10 A. R.F. Pomeroy, manager, Proposal 10 Surface Combustion? 11 Engineering. 11 A. I did. 12 Q. And what -- what company does this 12 Q. And where did you send your response to? 13 gentleman work for, at lease according to that 13 A. To the attention -- well, to Surface 14 letter? 14 Combustion in Toledo to the attention of 15 A. Surface Combustion division, 15 Mr. Pomeroy. 16 Midland-Ross Corporation. 16 Q. And what's the date of your letter? 17 Q. And who's he writing that letter to? 17 A. June 1, 1967. 18 A. Eagle-Picher, to my attention. 18 Q. And could you just read your response to 19 Q. And could you just -- I think it's a 19 Mr. Pomeroy? 20 short letter. Could you just read the letter out 20 A. Gentlemen, in reply to your letter of 21 loud, please? 21 May 31, we have enclosed three copies of our general 22 A. It says: Gentlemen, we are currently 22 catalogue covering our complete line of industrial 23 reviewing our complete library of refractory pricing 23 insulation products. We would appreciate your Page 22 Page 24 1 information. We now have on file the following 1 forwarding a copy of this catalog to Mr. C.W. 2 information on your company's products dated January 2 Deighton and Miss E. Gribo. If you should require 3 1, 1966. At your earliest convenience, would you 3 any additional information, please let us know. 4 please advise if the above information is complete 4 Signed Lowell D. Graves, Assistant General Sales 5 and up to date. If it is not, please send complete 5 Manager. Carbon copy to W.A. Flaugher, who was our 6 sets of update -- up-to-date pricing information as 6 salesman out of Cleveland at that time. 7 soon as possible to Surface Combustion division, 7 Q. This Eagle-Picher 66 that's marked as I 8 P.O. Box 907 Main Street, Toledo, Ohio 8 think Exhibit 5 that's before you, would that have 9 43601. Two copies attention: C.W. Deighton or 9 been included in that catalog that you -- you sent 10 Daughton, Proposal engineering department. One copy 10 Surface Combustion? 11 attention Miss E. Gribo, technical center. Signed 11 A. Yes, I'm sure it was. 12 Mr. Pomeroy. 12 Q. Okay. 13 Q. And this letter was sent to you at what 13 And, sir, how many years of experience do you 14 address? 14 have in the insulation business, approximately? 15 A. Eagle-Picher Company, Cincinnati, Ohio. 15 A. 42. 16 Q. And, again, the date of that year? 16 MR. WHITCOMB: Object to the form. 17 A. May 31, 1967. 17 BY MR. COMERFORD: 18 Q. At that time where were you working, 18 Q. Okay. Let we withdraw the question. 19 sir? 19 How many years have you worked in some 20 A. Eagle-Picher. 20 capacity in the industrial insulation business? 21 Q. At that address? 21 A. In the industrial insulation business? 22 A. Yes. 22 Probably 30. 23 Q. Let's go to the second letter, if we -- 23 Q. And, sir, as part of your job, did you 6 (Pages 21 to 24) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Comerford - 10/27/03 Page 25 Page 27 1 become familiar with the use of insulating cement 1 Toledo, Ohio, area that sold Eagle-Picher products 2 such as Eagle-Picher by your customers? 2 directly to Surface Combustion? 3 A. Yes. 3 MR. WHITCOMB: Object. 4 Q. And why -- why would you have to become 4 THE WITNESS: Yes. 5 familiar with that? What was the reason? 5 BY MR. COMERFORD: 6 A. Well, we sold the product and I knew 6 Q. And -- and what's the -- what name or 7 about how it was handled and who -- how it was user 7 names of distributors are you aware of that sold 8 and also was in the field at times when it was used. 8 directly to Surface Combustion products that were 9 Q. And would that assist you in serving the 9 ultimately from Eagle-Picher? 10 needs of your customers - 10 A. Well, there were probably several, but 11 A. Yes. 11 the one I'm most familiar with is -- is Service 12 Q. -- by becoming familiar with the 12 Products, Incorporated, in Toledo. 13 product? 13 Q. Could you spell that with -- because the 14 And, sir, do you know whether or not 14 word surface and service, I want to make sure we're 15 Eagle-Picher at times sold Eagle-Picher 66 Cement 15 clear? 16 directly to Surface Combustion? 16 A. S-E-R-V-I-C-E Products, P-R-O-D-U-C-T-S 17 A. Yes. 17 Incorporated, Toledo. 18 Q. And what -- do you believe Surface 18 Q. And what type of products, if any, would 19 Combustion did? I'm sorry. Let me strike that 19 Service, S-E-R-V-I-C-E, Products sell to Surface 20 question. 20 Combustion? 21 Do you -- do you know whether or not 21 A. Well, I can't answer for them, but I 22 Eagle-Picher sold Eagle-Picher 66 Cement directly to 22 know we sold a lot of products to Service Products 23 Surface Combustion? 23 including the block and cement that they -- they Page 26 Page 28 1 A. Yes, I believe we did. 1 were also a contractor as well as a distributor so 2 Q. And what is the basis of your opinion 2 they applied material in the insulation industry as 3 that such cement was sold to Surface Combustion? 3 well as resold it. 4 A. Well, I just recall the nature of our 4 Q. Do you have any - 5 business with them, again directly as well as 5 MR. WHITCOMB: Objection. 6 indirectly because we didn't always sell direct to 6 MR. COMERFORD: -- personal knowledge -- I'm 7 Surface, it came through other avenues, distributors 7 sorry. 8 and/or contractors. 8 MR. WHITCOMB: I'll move to strike that 9 MR. WHITCOMB: I'll move to strike the 9 answer. 10 portion that's non-responsive. 10 BY MR. COMERFORD: 11 THE WITNESS: And I also knew that they 11 Q. Do you have any personal knowledge, 12 purchased quantities of our block insulation which 12 Mr. Graves, on how Surface Combustion would utilize 13 was one of the primary insulators for their 13 Eagle-Picher 66 Cement? 14 equipment, and the cement was used as a companion 14 A. Yes. 15 product to the block. 15 Q. And what is the basis of your knowledge? 16 MR. WHITCOMB: Object to the balance of the 16 A. Well, the fact that -- that they used 17 answer as non-responsive. 17 the block, the 66 Cement was a companion product to 18 BY MR. COMERFORD: 18 the block used to seal the joint and what they 19 Q. I'm going to break my question up, sir, 19 called levelling the block, making the whole 20 and I have to do this for technical reasons. It's 20 application smooth so it could be jacketed or 21 going to sound a little redundant and I -- I 21 finished once insulated. 22 apologize. 22 Q. Sir, I'm going to show you what has been 23 Are you familiar with any distributors in the 23 marked as Graves 2, and I'm going to ask the court 7 (Pages 25 to 28) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Comerford - 10/27/03 Page 29 Page 31 1 reporter so we can keep these together if we have a 1 THE WITNESS: The second - 2 clip or paper clip. I'm not sure I see one. 2 MR. WHITCOMB: You may be able to connect 3 That's okay. Let's just try to keep these in 3 this up, but I don't know that I can let it pass 4 one pile if we can. This is Graves 2. And could 4 without questioning the issue. 5 you tell me what those documents are, sir? 5 MR. COMERFORD: Well, that's fine. That's 6 A. These are copies of invoices from 6 why I'm going to take my time and lay down a 7 Eagle-Picher Industries as well as copies of some 7 foundation, unless you want to agree to their 8 purchase orders from Surface Combustion. 8 authenticity, which I -- I know you probably won't 9 Q. So there's purchase orders and there's 9 today, so let me just put down - 10 invoices? 10 MR. WHITCOMB: Let's put that -- put that off 11 A. Yes. 11 for another day. Go ahead. 12 Q. I know it's pretty self-evident, but 12 BY MR. COMERFORD: 13 just so we're clear, what's the difference between 13 Q. Sir, in looking at these documents, can 14 the two, a purchase order and an invoice? 14 you -- again, what are the years of those documents? 15 A. Well, the purchase order would be issued 15 A. 1966, '67, um, '67, '66, '67, '67, '66, 16 by the buying authority and the invoice would be the 16 '67, '66, '67, '67. 17 billing of the shipment of material by the supplier. 17 Q. And, sir, were you working for 18 Q. And can you look at the document and 18 Eagle-Picher during those years of those invoices? 19 take a few minutes and just -- as long as you need 19 A. Yes. 20 and tell me what is being sold according to those 20 Q. And look -- have you ever seen invoices 21 invoices, and who's selling it, and who's buying it, 21 before reflecting the sale of Eagle-Picher 66 Cement 22 if you can? 22 to a customer? 23 MR. WHITCOMB: Note my objection on 23 A. Yes. Page 30 Page 32 1 foundation. 1 Q. Do those appear to be true and accurate 2 BY MR. COMERFORD: 2 invoices? 3 Q. Well, let me back up a little bit to 3 A. Yes. 4 cure this potential objection, sir. 4 Q. Do they appear to be -- to have been 5 Is -- sir, is Eagle-Picher listed at all on 5 generated in the normal course of business? 6 any of those documents that's before you? 6 A. Yes. 7 A. Um -- 7 Q. And would those types of invoices be 8 Q. The company, Eagle-Picher? 8 kept in the regular course of business at 9 A. Yes, they're on all of them. 9 Eagle-Picher? 10 Q. And why -- and I know this is 10 A. Yes. 11 self-evident, but why are they on those documents? 11 Q. And, sir, who, by looking at those 12 A. Well, they're shown as the invoicing 12 invoice, was actually purchasing the material? 13 company, the supplier, and they're also shown on the 13 A. Surface Combustion division. 14 Surface Combustion purchase order to which they 14 Q. And where is their address located? 15 mailed to Eagle-Picher the request for shipment. 15 A. P.O. Box 907, Toledo, Ohio. 16 Q. Okay. And can you take a second look at 16 Q. And again, sir, just so we're clear, 17 those invoices and give me some dates that those 17 what is Eagle-Picher actually selling to Surface 18 invoices reflect of the transaction? 18 Combustion? 19 A. The one on the -- the first one is 19 A. PV supertemp block insulation, block 20 December 19, 1966. 20 insulation, block insulation. This particular one 21 Q. Take your time, sir. 21 is a return of some block insulation. Eagle number 22 MR. WHITCOMB: John, I want to continue my 22 66 Cement is the way Surface has it ordered. Um, 23 objection on foundation. 23 Super 66 Cement. 8 (Pages 29 to 32) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Whitcomb - 10/27/03 Page 37 Page 39 1 testified in relating to claims of disease as a 1 A. Yes. 2 result of exposure to asbestos? 2 Q. Do you know the date of that testimony? 3 A. Well, one was actually a -- a lawsuit 3 A. It was spring of last year, roughly. 4 Eagle-Picher filed against United States Government. 4 Q. Okay. And what did you testify about? 5 Q. Okay. 5 A. What did I what? 6 A. And so I testified in Washington, D C. 6 Q. What did you testify about? 7 Q. And the other lawsuit? 7 A. The asbestos issue as primarily related 8 A. The other would have been related to 8 to labeling, caution labeling. 9 asbestos issue. 9 Q. Okay. Was the person you testified to, 10 Q. You're here today testifying in the case 10 did you testify on behalf of the plaintiff or on 11 in a deposition that was noticed by Plaintiff's 11 behalf of the defendants? 12 counsel. When were you first contacted by 12 A. In the -- on behalf of the defendant. 13 Plaintiff's counsel about this case? 13 Q. Okay. Do you know the name of the 14 A. A month ago. 14 defendant? 15 Q. Okay. How was that contact made? 15 A. I do not. 16 A. John Comerford contacted me. 16 Q. Was it Insulation Distributors, 17 Q. Okay. Was that the first time you had 17 Incorporated? 18 heard or discussed this case with anyone? 18 A. I -- yes, I.D.I., that is correct. 19 A. Yes. 19 Q. Okay. Was it the plaintiffs name 20 Q. Okay. 20 Adamec, A-D-A-M-E-C? 21 Okay. And how did Mr. Comerford contact you? 21 A. It could very well be. 22 A. By phone. 22 Q. Okay. 23 Q. Okay. And what did he say? What was 23 Was the counsel's name James Myers? Page 38 Page 40 1 the -- can you give us a general idea of the 1 A. Yes. 2 substance of your conversations? 2 Q. After having a telephone conversation 3 A. He just basically asked me, he was aware 3 with Mr. Comerford, did you have any further 4 of -- of my background from a case that I was 4 conversations with Mr. Comerford concerning your 5 involved with here in Niagara Falls a while back, 5 testimony here today? 6 last year. 6 A. Yes. 7 Q. What case was that? 7 Q. Okay. When was the next conversation 8 A. And -- and he just wanted to know if I 8 after he initially contacted you? 9 would be willing to testify relative to this case 9 A. Probably a week later or so when it 10 and the labeling issue. 10 was -- when we were working out the details of my -- 11 Q. Okay. What was the case you were 11 of my testifying or giving a deposition. 12 involved in in Niagara Falls? 12 Q. Okay. 13 A. The name of that case? 13 A. And the flight arrangements and timing 14 Q. Yes. 14 and so on. 15 A. I -- it escapes me. 15 Q. Okay. Did you discuss the substance of 16 Q. Do you know who Plaintiff's counsel was? 16 your testimony at all? 17 A. I don't. Jim is his first name. 17 A. Briefly. 18 Q. James Lawn (phonetic)? 18 Q. What was -- what was that discussion? 19 A. Pardon? 19 A. It was just, again, relating to the 20 Q. James Lawn? 20 issues that he knew I was familiar with, being with 21 A. I'm not -- I'm not sure what his name 21 Eagle-Picher during that period of time, and the 22 is. I just came up and testified for him and left. 22 caution labeling procedure that was adopted. 23 Q. Okay. Well, you testified in court? 23 Q. And did you have any further discussions 10 (Pages 37 to 40) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Whitcomb - 10/27/03 Page 41 Page 43 1 with Mr. Comerford prior to coming here to testify 1 Q. Okay. You don't recognize his signature 2 today? 2 or -- or the individual; is that correct? 3 A. Not directly, no. 3 A. No. 4 Q. Did you discuss -- have any discussions 4 Q. Now, this particular letter seeks 5 with anyone in Mr. Comerford's office? 5 information concerning refractory pricing 6 A. Just his secretary about the details of 6 information, correct? 7 the trip. 7 A. Yes. 8 Q. Okay. 8 Q. Okay. 9 All right. In terms of the details of the -- 9 Now, is it a -- do you understand that 10 the trip, are you being -- is Mr. Comerford paying 10 there's a difference between refractory materials 11 for the expenses while you were to fly here and to 11 and insulation? 12 testify? 12 A. Absolutely. 13 A. Yes. 13 Q. Okay. Refractory materials generally 14 Q. Okay. Is -- are you receiving any 14 are for particular applications, are they not, for 15 compensation for your testimony? 15 particular heat applications; is that not correct? 16 A. I am. 16 A. Re -- 17 Q. How much are you being compensated? 17 Q. Generally those heat applications are 18 A. It's a thousand dollars per day relating 18 higher than 2000 degrees? 19 to the case. 19 A. Absolutely, I am familiar with that. 20 Q. Okay. 20 Q. Okay. And generally asbestos insulation 21 And that's in addition to your expenses; is 21 products, is it not also true, are generally for 22 that correct? 22 applications under 2000 degrees, correct? 23 A. Yes. 23 A. Not necessarily. Page 42 Page 44 1 Q. Have you previously testified on behalf 1 Q. Okay. Most asbestos-containing products 2 of Plaintiffs counsel on asbestos disease cases? 2 are for applications under 2000 degrees, are they 3 A. I have not. 3 not? 4 Q. Okay. 4 A. Well, most asbestos insulation products 5 Other than the time you testified for 5 are for temperatures under 2000 degrees. There are 6 Mr. Myers, have you previously testified for 6 a lot of refractory products at elevated 7 defendants in asbestos disease cases? 7 temperatures that also contained asbestos, none of 8 A. I have. 8 which we made, but I am very familiar with that 9 Q. Okay. And do you know on how many 9 being the case. 10 occasions? You mentioned two cases when you were -- 10 Q. Okay. Did Eagle-Picher make a 11 A. Three or four other cases. They were 11 refractory products at the time this letter was 12 over the course of many years, and it's not 12 received in -- on May 31, 1967? 13 something I do professionally, so. 13 A. By definition -- 14 Q. Okay. 14 Q. At the time of this letter? 15 Looking -- well, Mr. Comerford showed you a 15 A. By definition, no. 16 letter which was I believe marked as Exhibit 3 -- 16 Q. Okay. 17 A. Yes. 17 But nonetheless, you did respond to the 18 Q. -- at this deposition? 18 inquiry by the letter dated June 1, 1967, correct? 19 And that was a letter from someone at Surface 19 A. I did, and the reason being is that the 20 Combustion division, Midland-Ross Corporation signed 20 industry, particularly with the OEM industry, 21 by R.F. Pomeroy, manager. Is that someone with whom 21 Original Equipment Manufacturers, commonly referred 22 you were acquainted? 22 to insulation as refractory materials. They 23 A. I -- I don't recall my knowing him. 23 included that as being all in one. 11 (Pages 41 to 44) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Comerford - 10/27/03 Page 65 Page 67 1 include. Would that include marketing? 1 Q. So what was the only -- what was the 2 A. Marketing. 2 only thing that was different between the A.P. 3 Q. Labeling? 3 insulating cement and the Eagle-Picher 66 Cement? 4 A. Everything that has to do with marketing 4 A. The bag, the name. 5 of the product, and labeling is a part of that. 5 Q. Okay. 6 Q. And - 6 And who would actually do the labeling for 7 MR. WHITCOMB: I'll object to the form. Note 7 A.P. Green on that material? 8 my objection to the whole line of questions here. 8 A. We did. 9 BY MR. COMERFORD: 9 Q. And on the material that you relabeled 10 Q. Well, sir, a lot of my questions are 10 for all these companies, A.P. Green, 11 getting to a foundation here and laying down a 11 Harbison-Walker, General Refractories, did this 12 proper foundation, and did Eagle-Picher - 12 cautionary note, this pneumoconiosis warning that's 13 MR. WHITCOMB: I don't see you getting - 13 depicted on Exhibit 3, was that -- was that also 14 getting to -- building a foundation for anything, 14 slapped on the bag of those other companies? 15 but go ahead. 15 A. With their approval. We wrote letters 16 BY MR. COMERFORD: 16 to all the national accounts, these were defined as 17 Q. At Eagle-Picher, did it relabel its 66 17 national accounts by the way, and letters were 18 Cement for other companies? 18 written telling them what we were going to do and 19 A. We did. 19 that we suggested that we do that for them as well. 20 Q. And can you give me some of the names of 20 And we asked them to sign-off on it so that we could 21 those other companies, whom they included? 21 proceed accordingly. And they all signed off 22 A. Well, they all were refractory 22 eventually and we started labeling their bags as 23 companies, A.P. Green refractories, General 23 well as ours. Page 66 Page 68 1 Refractories, North American Refractories, those 1 Q. Jack Hayes, who did he work for, sir? 2 types of accounts. 2 A. Service Products Company. 3 Q. Harbison-Walker? 3 Q. And where was that company located? 4 A. Harbison-Walker. Almost all of the 4 A. Toledo. 5 major refractory manufacturers we private labeled 5 Q. And where is Surface, S-U-R-F-A-C-E, 6 Super 66 to them under their name in their bag. 6 Combustion located? 7 Q. And so give me an example of one of 7 A. Toledo. 8 these companies' names, if I can use it. Was A.P. 8 Q. And that's Toledo, Ohio? 9 Green - 9 A. Yes. 10 A. A.P. Green insulating cement is that 10 Q. And what relationship, if any, did you 11 they called it. 11 have with -- with Mr. Hayes? What type of 12 Q. And this A.P. Green insulating cement, 12 relationship? 13 just so we're clear, from 19 -- we'll say during the 13 A. Customer/supplier relationship. 14 decade of the 1960's - 14 Q. And what kind of company did he run? 15 A. Uh-huh, yeah. 15 What did they do, this - 16 Q. -- at times did A.P. Green insulating 16 A. They were insulation contractors, 17 cement, where did that cement actually originate 17 applicators of insulation, and distributors of 18 from? Where did they get it? 18 insulation products. 19 A. From Joplin, Missouri, Eagle-Picher 19 Q. And at times would you talk with 20 plant in Joplin, Missouri. 20 Mr. Hayes, and if so, for what reason? 21 Q. And so was that insulating cement A.P. 21 A. To discuss material requirements, he'd 22 Green the same thing as Eagle-Picher 66? 22 call for pricing on material requirements, following 23 A. Identical. 23 up a shipment. Several reasons. It's just in the 17 (Pages 65 to 68) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Graves - Comerford - 10/27/03 Page 69 Page 71 1 general course of doing business with a customer. 1 MR. WHITCOMB: Objection. 2 Q. And what type of materials would you 2 THE WITNESS: The block insulation primarily, 3 actually supply or distribute or sell to Mr. Hayes' 3 the insulating cement, Super 66, and oftentimes 4 company? 4 mineral fiber blankets and boards. 5 A. We sold him the block, the PV supertemp 5 BY MR. COMERFORD: 6 block, the cement products, and on the specific 6 Q. And would he call you and -- why would 7 request the mineral fiber what they called metal 7 he call you about these materials, to know the 8 mesh blanket, and mineral wool boards. 8 price, or what was the reason? 9 Q. And did you sell this material during 9 A. Well, it would be a bill of material 10 the decade of the 1960s? 10 that he's being asked to quote on either to supply 11 A. Yes. 11 or maybe even install, and we would quote him on 12 Q. And how often would you correspond or 12 that material requirement. 13 talk to Mr. Hayes? Was it once every five years, 13 MR. WHITCOMB: Objection. 14 once a week, once a month? Can you give me an idea? 14 MR. COMERFORD: Thank you, sir. I have no 15 A. It would vary depending on the level of 15 further questions. 16 business, but probably once or twice a quarter, 16 MR. WHITCOMB: Note my objection to both the 17 maybe. 17 A.P. Green and the discussion about Jack Hayes, both 18 Q. And when -- what type of things would 18 those lines of questions. 19 you discuss with him in the regular course of your 19 MR. COMERFORD: Any other questions by any 20 business? 20 Defendants? 21 MR. WHITCOMB: Objection. 21 Sir, I think we're done. Mr. Whitcomb, are 22 THE WITNESS: Pricing, quotations on 22 we through today? 23 materials, shipment of orders. 23 MR. WHITCOMB: Oh, I have one question. Page 70 Page 72 1 BY MR. COMERFORD: 1 FURTHER EXAMINATION BY MR. WHITCOMB: 2 Q. And did he ever discuss with you on who 2 3 some of his major customers were? 3 Q. Mr. Graves, the person who wrote the 4 A. Yes. 4 letter to the account such as A.P. Green, that was 5 Q. And what customer names, if any, did he 5 Mr. Harrington, correct? 6 give you? 6 A. I believe -- I believe it would be 7 A. Well, there was - 7 during his period. 8 MR. WHITCOMB: Objection. Q. And he was the general sales manager? 9 THE WITNESS: -- several that he did business A. General sales manager. 10 with and for. 10 MR. WHITCOMB: Okay. Thank you. 11 BY MR. COMERFORD: 11 MR. COMERFORD: Thank you, sir. We're all 12 Q. Can you give me any names as you sit 12 through. 13 here today that that included? 13 (Videotaped deposition concluded at 11:24 14 A. Well, Surface Combustion definitely was 14 a.m.) 15 one because he would call us for pricing for 15 *** 16 materials that he was being asked to quote on to 16 17 Surface Combustion which would be their 17 18 requirements, direct requirements. 18 19 Q. And as you sit here today, during the 19 20 decade of the 1960s, I'm talking 1962 to 1970, that 20 21 eight-year time period, what were some of the 21 22 materials Mr. Hayes would call you about regarding 22 23 Surface Combustion? 23 18 (Pages 69 to 72) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Page 73 Page 75 1 STATE OF NEW YORK) 1 INDEX TO WITNESSES 2 ss: 2 Witness Examination Page 3 COUNTY OF ERIE ) 3 LOWELL D. GRAVES 44 5 I DO HEREBY CERTIFY as a Notary Public in and 5 6 for the State of New York, that I did attend and 7 report the foregoing deposition, which was taken 6 8 down by me in a verbatim manner by means of machine 7 BY MR. COMERFORD: BY MR. WHITCOMB: BY MR. COMERFORD: BY MR. WHITCOMB: 4 33 60 72 9 shorthand. Further, that the deposition was then 8 10 reduced to writing in my presence and under my 9 11 direction. That the deposition was taken to be used 10 12 in the foregoing entitled action. That the said 11 13 deponent, before examination, was duly sworn to 14 testify to the truth, the whole truth and nothing 15 but the truth, relative to said action. 16 17 18 12 13 14 15 16 17 19 LYNN M. MYERS, Notary Public. 20 21 22 18 19 20 21 22 23 23 Page 74 1 INDEX TO EXHIBITS 2 Exhibit Description Page 3 GRAVES EXH. 1 Notice of videotaped 3 deposition testimony 4 GRAVES EXH. 2 Invoices and purchase 3 5 orders 6 GRAVES EXH. 3 Correspondence 3 7 GRAVES EXH. 4 Affidavit on 3 authentication of 8 warning label 9 GRAVES EXH. 5 Photograph. 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 19 (Pages 73 to 75) JACK W. HUNT & ASSOCIATES, INC. 1420 Liberty Building Page 76 A able 31:2 absolutely 5:5 43:12 43:19 accepted 63:15 account 57:3,16 72:4 accounts 9:9 56:16 57:7,10,14 66:2 67:16,17 accurate 15:9,23 32:1 50:16,17 acquainted 42:22 action 73:12,15 activity 14:17 59:12 actual 62:1,5,12 adamec 39:20,20 addition 41:21 57:9 additional 11:23 24:3 50:13 address 22:14,21 32:14 34:20,21 adequate 17:14 administrative 9:3 admissibility 4:15 adopt 12:21 63:14 adopted 40:22 advise 22:4 affidavit 3:6 74:7 affixed 48:11 49:10 ago 37:14 agree 4:9 31:7 62:9 ahead 31:11 65:15 al 1:12 american 66:1 announced 12:18,20 13:16 answer 26:17 27:21 28:9 34:16 answering 51:15 apologize 20:14 26:22 appear 32:1,4 33:22 50:11 appearances 2:1 appearing 2:3,6,10 2:13 appears 34:8 35:3 45:15 49:21 50:7 application 28:20 applications 43:14 43:15,17,22 44:2 applicators 68:17 applied 11:21 12:3 28:2 48:20 appreciate 23:23 approval 67:15 approved 17:16 approximate 6:7 approximately 7:13 9:2,13 18:12,12 24:14 48:22 53:12 55:15 april 36:9 area 27:1 areas 59:6 arrangements 40:13 article 1:17 articulate 4:2,6 asbestos 10:10,13,16 11:6 12:8,20,22 13:21 17:10,11 18:4,21 37:2,9 39:7 42:2,7 43:20 44:4,7 49:5 54:1,7,10,11 asbestoscontaining 33:3 44:1 asked 5:3 38:3 60:13 61:19 62:14 67:20 70:16 71:10 assist 25:9 assistant 9:4,12 24:4 56:6,19,22 associates 1:19,23 association 12:14,16 13:2,3 62:15,21 attached 45:2 attempted 60:17 attend 58:4 73:6 attended 12:17 13:7 58:3 attention 21:18 22:9 22:11 23:13,14 attorney 2:22 authentication 3:6 74:7 authenticity 31:8 authority 29:16 avenue 2:2,9 avenues 26:7 avoid 17:14 aware 12:7 13:12 18:2,13 19:14 27:7 38:3 47:11,16 48:1 awful 20:17 B bachelor 5:22 back 7:12 10:2 13:3 13:8 15:8 30:3 33:19 35:8 38:5 background 5:4,14 38:4 bag 11:11,14 14:6,10 15:5,10,13 16:2,10 16:11,11,13 18:2,8 45:16,18,20,23,23 46:2,2,3,5,6,12,16 47:5,13,19,20,23 48:3,4,10,11,16,17 48:20 49:5 62:1,2,8 62:10,12 66:6 67:4 67:14 bags 14:8,9 17:5 35:4 48:5,13 49:22 50:7,12,19,20,21 67:22 balance 26:16 47:19 47:23 based 15:21 basically 38:3 50:19 basis 8:23 26:2 28:15 becoming 25:12 began 6:2,7 10:2,14 18:3 48:5 behalf 13:6 33:17 36:16,19 39:10,11 39:12 42:1 believe 12:17 15:22 25:18 26:1 42:16 48:7 50:12 60:20 72:6,6 bernard 5:16 best 34:5 49:1 64:4 bill 71:9 billing 29:17 51:13 birth 5:9 bis 19:18 bit 7:12 11:8 30:3 blaine 2:4 blanket 53:22 54:1 55:23 61:3 69:8 blankets 71:4 block 26:12,15 27:23 28:17,18,19 32:19 32:19,20,21 49:10 49:18 53:19 54:5,6 54:6,10 55:22 61:3 69:5,6 71:2 board 53:22 54:1 61:3 boards 69:8 71:4 born 5:7 bottom 16:11,12 45:20 46:2,5,15 box 22:8 32:15 break 26:19 breathing 17:14 briefly 40:17 bright 16:17 buffalo 1:20 2:2,6,9 building 1:20 65:14 bulletins 13:14 bureau 17:16 business 7:3,23 10:4 15:17 19:19 24:14 24:20,21 26:5 32:5 32:8 35:21,22 36:1 36:2,8 51:6,18 59:5 64:11 69:1,16,20 70:9 butcher 6:11 buying 29:16,21 C call 11:21 20:3 56:13 59:3 68:22 70:15 70:22 71:6,7 called 3:11 8:23 28:19 59:4 66:11 69:7 cant 19:5,5 27:21 capacity 24:20 carbon 24:5 career 34:1 case4:5 33:23 37:10 37:13,18 38:4,7,9 38:11,13 41:19 44:9 cases 36:23 42:2,7,10 42:11 Page 77 casting 34:11 50:23 catalog 24:1,9 45:2 60:14,19 61:4,4 catalogue 23:22 caution 17:10 39:8 40:22 46:17 47:13 49:4 cautionary 14:5,13 16:3,5 45:19 46:1,8 46:20 47:5,18 48:6 48:17 49:10 67:12 cement 10:21,21,22 11:1,3 14:8,12,15 14:16,20 15:6,10 17:5 25:1,15,22 26:3,14 27:23 28:13,17 31:21 32:22,23 33:2 35:5 45:10,19 49:6,16 52:14,16 53:21 61:3,16 65:18 66:10,12,17,17,21 67:3,3 69:6 71:3 cements 10:17,18 54:8 center 2:5 22:11 certainly 4:14 19:7 33:12 certify 73:5 change 19:9 chronological 20:20 21:1,2 chrysler 2:10 cincinnati 5:16,20 6:11 8:7 22:15 civil 1:18 claims 37:1 clear 8:12 13:1 14:11 27:15 29:13 32:16 33:1,16 50:3 60:11 66:13 clearly 13:16 cleveland 24:6 clip 29:2,2 closer 59:12 coating 12:1 college 5:18 6:2,5,9 6:12 colorado 12:16 13:7 14:1 combustion 1:12 2:7 19:12,15 20:6 21:15 22:7 23:5,8 23:10,14 24:10 25:16,19,23 26:3 27:2,8,20 28:12 29:8 30:14 32:13 32:18 33:17,20 34:2,3,22 42:20 49:13 51:17 52:16 52:22,23 54:19,22 55:14 57:2,15 58:21 59:5,7,10,15 59:21 60:16 68:6 70:14,17,23 come 6:1 11:9 12:6 comerford 2:1 3:15 4:1,18,20,22 17:22 19:1,8,21 24:17 26:18 27:5 28:6,10 30:2 31:5,12 33:9 37:16,21 40:3,4 41:1,10 42:15 45:12 60:3,8 61:8 61:18 63:7,19 64:6 64:17 65:9,16 70:1 70:11 71:5,14,19 72:11 75:4,6 comerfords 41:5 coming 41:1 commencing 1:21 commercial 7:6 common 11:19 commonly 10:23 44:21 63:2 communicated 47:8 47:10 communications 23:4 companies 6:8 9:10 62:19,22 63:12 64:8,9,9 65:18,21 65:23 66:8 67:10 67:14 companion 26:14 28:17 company 6:10,22 7:9 8:6 9:9,20 10:15 11:4 19:11,15 21:12 22:15 30:8 30:13 35:19,23 36:3,5,14 47:8 51:8 57:9 59:14 62:16 63:2 68:2,3,14 69:4 companys 22:2 compared 47:22 compensated 41:17 compensation 41:15 competition 64:12 competitors 64:19 64:20,22 complete 12:5 21:23 22:4,5 23:22 61:4 concern 63:15 concerning 40:4 43:5 concerns 12:19 concluded 72:13 conducting 3:23 confirm 3:15 connect 31:2 conscious 47:17 considered 55:17 57:3 consultant 7:10 consulting 36:6 contact 37:15,21 contacted 37:12,16 40:8 contain 10:9 54:1,10 54:11,13 contained 10:12,16 44:7 45:9 48:17 containing 11:6 contains 17:10 contin 12:4 continue 30:22 continued 12:4 57:10 contract 57:17 contractor 28:1 contractors 26:8 68:16 contracts 57:19 control 17:15 convenience 22:3 conversation 40:2,7 conversations 38:2 40:4 cooperative 6:12 copies 22:9 23:21 29:6,7 copy 22:10 23:6 24:1 24:5 45:15 corporation 21:16 33:20 34:4,11,22 35:14 36:16 42:20 50:22 52:17 54:23 corporations 52:23 corrado 1:8,8 correct 33:21,22 34:8,12,14,23 35:1 35:6,7,12,13 36:20 39:18 41:22 43:2,6 43:15,22 44:18 45:6,10,11,16,20 45:21 46:4,13 47:1 47:9 49:11,12,18 49:19,22,23 50:3,6 50:7,8,12,14,19,23 52:11 54:14 56:8 56:20 57:16,21,23 58:8,17,18 59:2,22 62:13 72:5 correspond 69:12 correspondence 3:5 20:2 74:6 counsel 37:12,13 38:16 42:2 counsels 39:23 county 1:6 73:3 couple 50:10 63:20 course 15:17 32:5,8 42:12 51:5,18 69:1 69:19 court 1:6 28:23 38:23 covering 23:22 craft 11:11 created 17:13 crosby 2:8 cure 4:8 30:4 current 7:8 36:4,5 currently 6:18 21:22 customer 8:11 9:5 23:7 31:22 61:6 68:13 69:1 70:5 customers 25:2,10 52:9 70:3 Page 78 D daily 8:23 52:6,9 daimler 2:10 data 61:5 date 5:9 15:11 20:23 21:5 22:5,16 23:16 39:2 48:5 dated 22:2 44:18 45:3 dates 30:17 daughton 22:10 day 31:11 41:18 daytoday 59:12 dealing 8:22 9:11 34:1 dealt 20:1 59:8 decade 66:14 69:10 70:20 deceased 1:9 december 30:20 decision 4:7 13:22 14:2 47:4,13,18 48:9,12 decisionmaking 47:14,17 deemed 2:22 defendant 1:13 2:6 2:10,13 4:12 39:12 39:14 defendants4:2 33:10 39:11 42:7 60:4 71:20 defense 2:22 defined 67:16 definitely 70:14 definition 44:13,15 degree 5:21 degrees 43:18,22 44:2,5 deighton 22:9 24:2 delaware 2:2,9 denver 12:16 13:7 department 8:10,11 8:14,21 22:10 52:6 57:11 departments 47:12 depending 69:15 depicted 33:6 48:22 61:22 62:10 67:13 depiction 15:9,23 62:1 deponent 73:13 deposition 1:1,16 3:3 3:16,23 37:11 40:11 42:18 72:13 73:7,9,11 74:3 describe 8:8 description 74:2 details 40:10 41:6,9 determine 53:9 determining 53:5 didnt 20:2 26:6 54:12 difference 29:13 43:10 different 34:20 50:22 67:2 difficult 16:18 direct 20:3 26:6 70:18 direction 73:11 directly 19:19 25:16 25:22 26:5 27:2,8 41:3 47:10 discovery 3:16 discuss 40:15 41:4 68:21 69:19 70:2 discussed 37:18 53:17 55:20 discussing 14:13 discussion 40:18 71:17 discussions 40:23 41:4 disease 37:1 42:2,7 distribute 69:3 distributor 28:1 distributors 26:7,23 27:7 39:16 68:17 division 8:2,5 10:6 13:15 21:15 22:7 32:13 33:20 34:3 34:11,22 35:19,20 42:20 50:22,23 52:16,23 54:22 57:2,3 dock 34:17 document 29:18 45:3 51:12 documents 29:5 30:6 30:11 31:13,14 doing 9:6 52:6 56:13 64:13,20,22 69:1 dollars 41:18 dont 16:15 31:3 38:17 42:23 43:1 47:2 51:11 52:17 55:1,3,12,19 59:1,3 59:21 65:13 dr 17:18 18:9,13 58:6,6,12,13 drive 3:10 duly 3:11 73:13 dust 17:13,14,17 duties 8:8 E eab 2:12 eagle 32:21 33:1 eaglepicher 6:16,17 7:18,22,23 8:3,9,13 10:3,4,13 11:1,3,5 11:9 13:3,7,22 14:20 15:10,19,22 17:5 21:18 22:15 22:20 24:7 25:2,15 25:15,22,22 27:1,9 28:13 29:7 30:5,8 30:15 31:18,21 32:9,17 35:4,11,18 36:16,19 37:4 40:21 44:10 45:10 45:18 49:6 51:4 52:13,15 54:3 60:18 61:10 62:2 62:12,16 63:1 65:12,17 66:19,22 67:3 earlier 33:7 48:10 51:21 61:9 earliest 22:3 educational 5:13 effective 6:21 eight35:4 50:20,21 64:10 eightyear 70:21 either 23:3 53:23 71:10 elected 63:13 elevated 44:6 employed 35:11 employment 36:5 enclosed 23:21 engineering 21:11 22:10 entire 4:16 entitled 73:12 entry 52:7 equipment 12:1,4 26:14 44:21 erie 73:3 escapes 38:15 esq 2:1,5,8,12 estate 1:8 estimator 59:8 et 1:12 event 4:16 eventually 67:22 examination 4:20 33:14 60:8 72:1 73:13 75:2 example 11:9 66:7 exception 2:21 excess 17:11 excessive 17:12 executor 1:8 exh 3:2,4,5,6,8 74:3 74:4,6,7,9 exhibit 15:1,4,7 16:2 17:1 20:15 24:8 33:7 34:7 42:16 45:4,13,15 48:4,23 50:6 61:23 62:11 67:13 74:2 exhibits 20:14 74:1 expenses 41:11,21 experience 24:13 experts 18:3 explain 60:19 62:4 explanation 60:18 exposure 12:22 37:2 expressed 12:19 expressing 18:21 extent 59:17 60:23 eye 46:9 _________ F facetious 62:16 fact 18:21 28:16 63:15 Page 79 fair 15:9,23 48:16 49:9 52:4,10,17 57:13,14 58:19 falls 38:5,12 familiar 19:11 20:12 25:1,5,12 26:23 27:11 40:20 43:19 44:8 far 13:20 19:2 59:4 62:19 63:1,16 fiber 17:11 69:7 71:4 field 8:22 9:19 18:3 25:8 56:13 file 22:1 filed 37:4 filing 2:18 financially 36:1 fine 5:2 31:5 finished 28:21 finishing 10:21 first8:13 16:9 20:22 21:3,4 30:19 37:12 37:17 38:17 50:2 57:15 five 69:13 flaugher 24:5 flight 40:13 fly 41:11 focus 7:21 10:1 19:9 focusing 15:7 follow 52:7 55:6,9 followed 63:17 following 3:1 22:1 68:22 follows 3:12 followup 60:3,10 followups 57:11 foregoing 73:7,12 forget 56:21 form 2:21 3:20 4:3,6 4:11 17:21 19:4,16 24:16 60:22 61:12 63:4,9 64:2,15 65:7 formal 3:19 forth 18:23 33:18,19 forward 7:21 forwarding 24:1 foundation 30:1,23 31:7 65:11,12,14 four 42:11 friend 35:22 front 20:18 full45:23 46:3 furnaces 19:12 52:18 53:6 further 33:9 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12:8,19 18:22 heard 17:18 37:18 hearing 18:7 heat 43:15,17 heated 12:1 hed 68:21 hes 71:10 high 5:15,16 higher 43:18 history 15:22 hitchcock 2:4 hold 9:21 hope 55:2 hsbc 2:5 huber 2:4 hunt 1:19,23 2:16 I id 18:14 20:12 idea 38:1 63:23 64:7 69:14 identical 66:23 identification 3:1 15:2 ill 19:16 26:9 28:8 59:17 65:7 illustrate 46:17 im 4:4,14 14:23 16:12,22 19:9,10 20:8,9 21:4 24:11 25:19 26:19 27:11 28:6,22,23 29:2 31:6 35:8 38:21,21 48:1 62:15 70:20 immediately 12:3 include 19:22 64:22 65:1,1 included 9:5 24:9 44:23 65:21 70:13 including 27:23 incorporate 13:23 incorporated 27:12 27:17 39:17 incumbent 64:12 index 1:11 74:1 75:1 indiana 5:8 indicated 60:17 indirectly 19:20 26:6 individual 43:2 industrial 5:22 7:7 8:4 10:7 23:22 24:20,21 industries 6:16,18 10:8 29:7 industry 19:7 28:2 44:20,20 61:17 63:11,13 inferring 13:19 information 22:1,2,4 22:6 24:3 43:5,6 inhalation 17:11 initially 8:21 14:6 40:8 inquiry 44:18 install 71:11 instructions 11:12 16:14 insulated 28:21 insulating 10:17,21 11:23 15:6 25:1 35:4 53:21 66:10 66:12,16,21 67:3 71:3 insulation 6:22,23 7:4,5,14 8:5 10:6,7 11:23 12:15 13:2 Page 80 23:23 24:14,20,21 26:12 28:2 32:19 32:20,20,21 36:2,6 39:16 43:11,20 44:4,22 53:19 55:22 62:20 68:16 68:17,18 71:2 insulators 26:13 interested 53:8 internal 13:14 inventory 14:7 invoice 29:14,16 32:12 invoices 3:4 29:6,10 29:21 30:17,18 31:18,20 32:2,7 49:15,17 51:8 74:4 invoicing 30:12 involved 7:11 18:17 35:21 36:1 38:5,12 63:13 irving 17:18 18:13 58:6 issue 19:7 31:4 37:9 38:10 39:7 issued 29:15 51:8 issues 40:20 J jack 1:19,23 59:9 68:1 71:17 jacketed 28:20 james 2:5 38:18,20 39:23 january 22:2 jewels 2:12 60:5 jim 33:16 38:17 job 8:20 9:16 24:23 john 2:1 4:22 13:9 30:22 37:16 johnsmanville 12:18 join 35:23 joined 6:15 joint 28:18 joplin 3:11 7:2 35:17 35:18 66:19,20 jr 1:8 june 23:17 44:18 45:3 jury 8:18 11:8 33:7 K keep 29:1,3 kept 32:8 key 13:14 kind 68:14 knew 19:3 25:6 26:11 40:20 63:16 know 13:6,20 19:3 24:3 25:14,21 27:22 29:12 30:10 31:3,8 38:8,16 39:2 39:13 42:9 46:19 46:21 47:2 48:5,20 51:11 52:14,18 53:12,15,16 59:1,3 59:21,23 62:20 63:1,8,10,18 64:12 64:20,21 71:7 knowing 42:23 knowledge 28:6,11 28:15 34:5 49:1 58:20,22 64:4 known 10:23 19:12 19:15 63:2 L label 3:7 9:10 12:21 14:7,10,19 33:6 46:16,17 47:13 48:11,12,21 49:10 74:8 labeled 14:5 66:5 labeling 13:23 14:3 38:10 39:8,8 40:22 65:3,5 67:6,22 labelling 64:1,3 large 46:19,21 late 6:10 53:14 laundry 6:6 law 1:18 lawn 38:18,20 lawsuit 37:3,7 lawyer 60:16 lay 31:6 laying 65:11 lease 21:13 leaving 36:14 left35:23 38:22 letter 20:22 21:9,14 21:17,20,20 22:13 22:23 23:2,7,16,20 42:16,19 43:4 44:11,14,18 72:4 letters 20:6,18 67:15 67:17 level 69:15 levelling 28:19 liberty 1:20 library 21:23 life 12:4 line 23:22 65:8 lines 71:18 lipsitz 2:1 list 6:6 listed 30:5 little 7:12 11:8 26:21 30:3 llc 2:1 llp 2:4,8 located 8:6 32:14 68:3,6 location 48:18,22 long 9:21 17:12 29:19 look 20:10,11 29:18 30:16 31:20 34:10 49:16 looked 15:10 50:13 looking 23:2 31:13 32:11 34:7 42:15 45:23 looks 49:20 50:9 lot 9:9 27:22 44:6 46:16 57:8 61:17 65:10 loud 17:8 21:21 lowell 1:1,16 12:6 20:5 24:4 75:3 lynn 1:21 73:19 lytle 2:4 ________ M________ machine 73:8 mailed 23:7 30:15 main 22:8 major 63:11,12 66:5 70:3 making 28:19 management 5:23 7:10 13:14 manager 8:10,14 9:4 9:7,8,12 12:17 13:10 21:10 24:5 35:19 42:21 56:7 56:15,19,23 57:7,9 57:14,18 72:8,9 managers 47:12 manner 3:18 73:8 manufacture 7:5 manufactured 10:6 10:13 19:12 54:3 manufacturer 8:4 manufacturers 12:16 13:2 44:21 62:21 63:11,13 66:5 manufacturing 6:22 36:2,6 manville 13:16 manvilles 63:14 marked 3:1 15:1 20:10,14 24:7 28:23 42:16 45:4 marketing 65:1,2,4 mary 2:12 material 28:2 29:17 32:12 53:10 55:6 55:10,18 57:12 61:11,14 67:7,9 68:21,22 69:9 71:9 71:12 materials 43:10,13 44:22 58:12 59:22 61:2 69:2,23 70:16 70:22 71:7 mcaskill 2:8 mean 20:1 23:6 51:7 means 73:8 meant 60:11 meeting 12:15,18 13:7,11,12 14:1 57:22 58:3 62:15 meetings 59:7 member 13:3 62:17 members 19:3 64:4,8 mentioned 42:10 mesh 69:8 met 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pile 29:4 pk 6:22,23 7:3,13 36:6 place 35:9 47:4 placed 18:7 Page 82 plaintiff 1:10 2:3 39:10 plaintiffs 37:11,13 38:16 39:19 42:2 plant 53:1 55:14 56:4 66:20 plaza 2:12 please 4:2,5 15:2 16:10 17:8 21:6,21 22:4,5 24:3 60:19 plus 14:17 18:9 pneumoconiosis 63:3 67:12 point 7:21 pomeroy 21:10 22:12 23:15,19 42:21 ponterio 2:1 portion 26:10 46:12 position 7:8 9:21 51:4 63:14 positions 8:18,19 possible 17:15 22:7 possibly 13:18,19 potential 12:8 30:4 power 10:7 practice 1:18 precise 52:18 55:13 55:16 presence 73:10 present 2:16 preserve 3:18 preserved 4:10 president 9:14,15 pretty 29:12 previously 35:10 36:15 42:1,6 price 71:8 pricing21:23 22:6 43:5 68:22 69:22 70:15 primarily 39:7 49:17 71:2 primary 26:13 55:5 61:1 printed 14:10 48:11 48:13 printing 47:23 48:4 prior 41:1 private 9:10 66:5 probably 24:22 27:10 31:8 40:9 56:11 57:11 69:16 procedure 13:23 40:22 proceed 4:17 67:21 process 10:7 47:14 47:17 51:13 processed 52:4 processing 8:22 51:21 produced 45:6 producing 17:17 product 9:9 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