Document OEderJGO7nQbxQ9ReXYpyDQ2v

FILE NAME Kubota KUB DATE 2014 Apr DOC KUB041 DOCUMENT DESCRIPTION Legal - Trial Testimony - Masahiko Uchino Vol 7 TRIAL - VOLUME 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY CONTRA COSTA BEFORE THE HONORABLE LESLIE NICHOLS JUDGE 9 DEPARTMENT PAMELA J. O'BRYAN VS. PLAINTIFF A.H. VOSS COMPANY sued individually and as interest to VOSS INTERNATIONAL CORPORATION et al DEFENDANTS' No. C13-01926 VOLUME VII PAGES 638-754 REPORTER'S TRANSCRIPT OF PROCEEDINGS WEDNESDAY APRIL 16 2014 REPORTED BY BARRIE HART 6954 bayareatrial JENNIFER ROUX 11003 . reporters.com HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 72 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EARANCES ON BEHALF OF THE PLAINTIFF THE LANIER LAW FIRM 2049 CENTURY PARK EAST SUITE 1940 LOS ANGELES CA 90067 BY MARK D. BRATT ESQ mab@lanierlawfirm.com TREY JONES ESQ Hwj lanierlaw.com ON BEHALF OF VOSS COMPANY KUBOTA CORPORATION WILSON ELSER VOSS INTERNATIONAL 525 MARKET 17TH FLOOR STREET SAN FRANCISCO CA 94105 BY ROBERT ENGLE ESQ robert.engle@wilsonelser.com robert.engle@wilsonelser.com CORPORATION MARY ELLEN GAMBINO ESQ ON BEHALF OF WESTBURNE SUPPLY WALSWORTH FRANKLIN BEVINS & MCCALL 601 MONTGOMERY STREET NINTH FLOOR SAN BY FRANCISCO CA 94111-2612 LINDA S. VOTAW ESQ lvotaw@wfbm.lvoctaw@owfbmm.com LLP PAMELA E. STEVENS pstevens@wfbm.cpstevoens@wfmbm.com ESQ ON BEHALF OF CERTAIN TEED MCKENNA LONG & ALDRIDGE ONE MARKET PLAZA 24TH FLOOR SAN FRANCISCO CA 94105 BY FRANK K. BERFIELD ESQ fberfield@mckennalong.com MICHELLE C. JACKSON ESQ mjackson@mckennalong.com HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 7 INDE X WITNESS MASAHIKO UCHINO Direct Examination 776 by MARK BRATT Redirect Examination by MS GAMBINO PAGE 680 707 EXHIBITS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit No. 500 501 7010 7011 7015 7016 7017 Exhibit Description Offered 693 694 Monthly newsletter 62.12 728 Monthly newsletter 64.10 736 Certificate of inespection 740 Inspection 1-31-64 Kubota ACP Brochure 742 745 Admitted HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL - VOLUME 7 WEDNESDAY APRIL 16 23014 --o0o-- Page .641 9:30 A.M. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE COURT We're together out of the presence of the jury just about to get started with the Voss opening statement Counsel are present And I think something briefly Mr. Berfield did you want to say MR BERFIELD Yes your Honor During opening statement yesterday by Mr. Brathte mentioned on two different times within a very short span of time that Lloyd Ambler was going to be here and he was going to -and it was going to be clear that he had been deposed many times and he had been in many different lawsuits for CertainTeed over the years One of the motions in limine was a motion in limine to keep out reference to other asbestos cases We agreed that expert witnesses were fair game to talk about other asbestos cases that they had been testifying in but there's no ground to suggest that a PMK who's been deposed in cases that resulted in summary judgements in favor of the company and deposed in cases went to verdict against the company merely suggesting that he had been deposed a lot of times was unfair and 356 THE COURT 352 twice MR BERFIELD 352 yes sir It happened yesterday I looked up at the Court but I wasn't going to object because it was just going to highlight H HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 642 would just like it made clear that the motion in limine is still in effect again that Mr. | Bratt should not violate it THE COURT Okay I'll say nothing further except I established eye contact with you while it was happening I acknowledged that and keep alert to my surroundings but I felt that not to interrupt sua esponte so I did not do that And it's just -- you're reminding us of the agreement MR BERFIELD Thank you very much your Honor MR BRATT Your Honor obviously an agreement discussed -- I wouldn't say an agreement but what we before was that I would be perfectly able to use past depositions to impeach him So this is why when we talked about it I said this under Kelly v New West this motion is overly restrictive and overbroad THE COURT You said what he said but if you examine him you need to take care because it's not the idea that his deposition was taken on many occasions If there's admissible deposition transcripts to read from then that will be fine because that's one way to impeach through prior testimony But the idea that your deposition has been taken on many occasions it can be established -- I think I said at the time -- he's a long employee that can be established for the purposes of bias I'll just interrupt if we get into that and say we don't care how many depositions were taken at all we just let in admissible evidence We don't need to HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 spend additional time on that Page 643 MR BRATT There is an issue on Mr. Ambler THE COURT I was told that I should read these and be available at noontime when Mr. Wood is here MR BRATT Yes your Honor that's for the deposition When the deposition was rescheduled at the request of defense counsel for a date that was close to trial to take Mr. Ambler's deposition relatively it was then suspended by Ms. Votaw and wetalked about that I have since asked on several occasions for an opportunity to ask Mr. Ambler questions and it can be done by me at morning before the court at lunch or on the weekend and that we need Mr. Jones is also to talk to him is available And the reason because I expect him to come in here and basically support what Mr. Berfield said that my client is a liar or that my client's father is a liar that THE COURT Excuse me Mr. Berfield didn't say He said credibility would be an issue Memories will be tested documents will be looked at So let's bring the heat down on the stove right now and tell me what you want to say MR BRATT I need his deposition to be able to fairly proceed in this case The deposition didn't occur I need it I need the ability ask what search he did as foundation for anything that he might say he -- when he comes to court live number one Because he's not the corporate representative that's a discovery tool HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 644 The person most qualified where someone's designated to speak on behalf of a corporation that's a discovery tool that is not a tool that they can affirmatively use in have court He has to foundation for what he says He has to show that him questions to in this case foundation and figure out what I need the ability to ask that foundation was or is So I'm just asking for an opportunity to complete the deposition that was rescheduled admittedly late to trial We're all working under the gun here and I'm not throwing anyone under the bus for that THE COURT Have you talked to counsel I've asked MR the BRATT I've asked several times and national counsel who is present here also about scheduling for that and I have been told -- they basically said well we'd like to take a shot at the Court to get that excluded And I'm asking the Court now to give me that opportunity MR BERFIELD Your Honor the date for the deposition that was ultimately suspended by Westburne was a date that was picked by plaintiff's counsel We were ready to present him in due course They rescheduled it because they had scheduling problems number one Number two the deposition did not go forward although we were ready and willing and able to do so and produce documents and so forth because of the plaintiff's counsel's fault in not notifying the other side of the deposition date and presenting documents to them And you'll recall he said HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 well I have to fall on my sword Page 645 After that deposition was suspended no effort was made by to take his them until deposition a couple In fact days ago they have oh now we made need . representations didn't need his his deposition up until a couple days ago that they deposition Now they say that they want It's not fair And another thing is your Honor Mr. -- THE COURT Well excuse me When was -- what was the date of the deposition that was suspended MR BERFIELD April 1st your Honor THE COURT All right Please continue MR BERFIELD Another thing is your Honor Mr. Ambler we want him to testify live but I'm informed that he has some problems with his wife she's been hospitalized a couple times He's not -- he's healthy but it is hard on him to come out here The deposition that was scheduled for April 1st was to take place in Philadelphia Mr. Bratt appeared by phone and we were all ready to go and so that he wouldn't have to travel- far from his home What we propose is with all this electronic gear that Mr. Ambler testify live by video and whatever documents they want to present conference him with examination they can have somebody in the room with him in Philadelphia and do that ; issue now THE COURT We don't have time to resolve this as it's seven minutes after the time we are HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 supposed to begin opening statements and so I'll Page 646 deal with it when we have time to do it MR BERFIELD Thank you very much your Honor THE COURT We do need to proceed and we'll call the jury Is there any witness that's going to testify this morning whose first language.is -- native language is Japanese MS GAMBINO Yes your Honor THE COURT by the plaintiffs Is that witness going to be called MS GAMBINO Yes THE COURT Just a heads up Just a suggestion Of course it's a 776 exam under if it's a company representative | Evidence Code section 776 where leading questions can be asked But my view is under 765 of the Evidence Code I'm just making a suggestion avoid -- take special care to avoid compound or you know other than very direct questions because the primary obligation is to ascertain the truth and that can be difficult in the best of circumstances especially with an interpreter Honor MS GAMBINO That will be no problem your THE COURT suggestion That's fine that's just a MS GAMBINO in my opening statement I would like to use two exhibits and I understand that the HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff's attorneys are objecting to that Page 647 They were exhibits used yesterday I did not realize Mr. Bratt was not the one who used them MR BRATT I did not put up any documents in my opening I should have probably objected but I didn't want to draw you know -- THE COURT Is this something that's going to come -- the jury is walking in May I see them MS GAMBINO Yes your Honor THE COURT Counsel has shown me two matters says they're the custodian of record MS GAMBINO Yes THE COURT use them on overhead Accepting that -- and you want to MS GAMBINO Yes . THE COURT I'll say this is to illustrate -- I'll note any objection it overrule it and you may refer to MS GAMBINO Thank you THE COURT Two items MS GAMBINO Two items THE COURT Give it a once over and we'll move right along Thank you You may bring in the jury The jury enters the courtroom) see you THE COURT Good We'll proceed morning , everybody Nice to And Ms. Gambino will address you on behalf of Voss Corporate HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM ' TRIAL - VOLUME 7 MS GAMBINO Thank you your Honor Page 648 Good morning ladies and gentlemen Once again my name is Mary Ellen Gambino and I'm speaking to you this morning on behalf of my clients Kubota Corporation and two entities that are related Voss International Corporation and A.H. Voss Company will meet Later this morning hopefully this a gentleman by the name of Masahiko morning Uchino you Mr. Uchino until recently was the manager of the legal 10 department for Kubota Corporation His current title is 11 Manager of General Affairs 12 Later in this trial you will also meet Ms. 13 Stephanie Voss whose father Arthur H. Voss was the 14 founder of the Voss companies 15 Kubota Corporation is a Japanese company that 16 was established sometime in the late 1800s Originally it 17 was a founding company they manufactured cast iron pipe 18 used for water supply and today they mainly manufacture 19 small agricultural equipment and construction equipment are 20 and the engines that used in that equipment But over 21 the years Kubota Corporation has manufactured a variety 22 of industrial products and one of those products was 23 asbestos cement pressure pipe They began manufacturing 24 that product in 1954 and they stopped manufacturing it in 25 1975. As a matter of fact they closed down the asbestos 26 cement pressure pipe plant on November 2nd 1975 27 During the time that they were manufacturing 28 the pipe they exported it to the United States This HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 occurred between 1962 and about 1975. Page 649 In the United States the Kubota pipe was distributed in California and some Voss other western states and companies Voss Company was distributed by the those Voss companies were essentially the exclusive distributor of Kubota pipe in California And they of course were the companies that were founded by Mr. Voss Now Mr. Voss moved to California from the Midwest He settled in Southern California and he 10 started a small plumbing supply business That business | 11 eventually grew and became Voss International 12 Corporation They the Voss companies they came into 13 existence -- it's a little unclear there may be some 14 conflicting testimony but basically either in the late 15 1940s or in the 1950s They started winding down their 16 business and they eventually closed sometime in the 17 1990s 18 You'll hear testimony that by 1997 the company 19 was practically defunct And yes by that time they had 20 discarded their records in the normal course of business 21 of winding down a business 22 Now as you heard the Voss companies sold 23 Kubota pipe between 1962 and 1975 24 You're going to hear in this trial that Ms. 25 O'Bryan is a woman who sadly has a very serious illness 26 it's a terminal illness and that fact is undisputed And to 27 as jurors it would be a challenge remain objective 28 about the facts and impartial toward the parties in spite 7 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of Ms. O'Bryan's condition Page 650 But as the Judge has advised you that's your duty as jurors and that's what the parties are asking you to do And if you do that the evidence will show you that my client's products were not the cause of Ms. O'Bryan's illness There are two questions that you're going to be asked to decide First is the question of medical causation and second is the question of liability On the medical causation question you'll see that there's no clinical evidence of Ms. O'Bryan ever having exposure to asbestos You will see that on pathology there are no asbestos bodies and the radiographs there are no plural plaques which we'll talk about a little bit more in the trial and there's no asbestosis which Mr. Bratt explained to you yesterday is scarring of the actual tissue of the lungs But the evidence will show that Ms. O'Bryan has been diagnosed with mesothelioamnad this is a disease that has been linked to asbestos as a cause You will also see that not all mesotheliomas are caused by asbestos exposure The doctors and the scientists who are very experienced in this rare disease you will see evidence that in women especially mesotheliomas are often idiopathic and that means that there's no defined cause In this case the evidence will show that Ms. O'Bryan's mesothelioma probably is an idiopathic mesothelioma On the liability question the evidence will show that Ms. O'Bryan's stepfather Kenneth O'Bryan HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 worked with asbestos products Ms. Page 651 O'Bryan believes that her father's work caused her to be exposed to asbestos and that's why she's bringing this lawsuit But you will also see that there's no credible evidence that Ms. O'Bryan was ever exposed to a single fiber from Kubota asbestos pipe or from any other product manufactured by Kubota or sold by the Voss companies The evidence will show that the available public records that are from the relevant time period from the counties where Mr. O'Bryan worked that there will be no evidence that Kubota pipe was you will see records or to foreign pipe that make reference . ever used to Japanese Now pipe pipe THE COURT Or to what I just didn't hear MS GAMBINO . To Japanese pipe or to foreign THE COURT I didn't hear it Thank you District MS GAMBINO But only in the Caleveras Water record where it was considered whether they would use Japanese pipe and then later it was determined that as long as the America Act was in place that they would not buy foreign pipe And this occurred in the 1960s and I'm going to show you those minutes You can read these minutes from the board of directors meeting Caleveras County Water District December 6th 1967 THE COURT I have permitted these blow ups on the representation that there will be an appropriate basis to admit them into evidence They're not in evidence now HG LITIGATION SERVICES HGLITIGATION.COM TRIAL VOLUME 7 just to illustrate the opening statement And the date of that again Page 652 MS GAMBINO The date is December 6th THE COURT Thank you 1967 MS GAMBINO And on page three of that document which has been marked for identification only as Exhibit 7049 through Bate stamp number 0548 And this document says Under district specifications and 10 amendments Engineer Weatherby reported 11 that several problems have arisen which 12 are either not fully covered or need it's 13 revising in and cut off District 14 specifications such as storage requirements 15 not being fully spelled out reconsideration 16 of various plastic pipe requirements and 17 the possibility of using Japanese made cement 18 asbestos pipe Mr. Weatherby requested 19 consideration be given to these matters for 20 possible revision of the specifications 21 prior to start of the next construction 22 season 23 Another date in the minutes of the board of 24 director meetings Calaveras County Water District March 25 6th 1968 marked for identification as Exhibit 7049 26 through Bate stamp 0544. And the second page of that 27 document under the heading Foreign Pipe Use and 28 Construction for Contra Costa County -- I'm sorry -- HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL ~ VOLUME 7 Calaveras County Water District and O. that's highlighted Page 653 And the part Following lengthy discussion joined in by representatives of firms manufacturing both foreign and domestic pipe district representatives maintain that until evidence is shown by attorney Albert E. Sheets that the American Act 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 has been changed this district will not use foreign materials other than specified in the Act Upon motion by Director Hart seconded by Director McCombs and unanimously passed and adopted the Board's decision was to leave the district specifications as is and deny the use of foreign pipe You'll also see evidence that Johns Manville the company that had an asbestos pipe manufacturing plant in Stockton that was visited and toured by Mr. O'Bryan made a concerted and apparently successful foreign pipe out of the Calaveras County -- effort to I'm sorry keep -- the El Dorado County Water District jobs will hear With respect to the Kubota Corporation that Kubota in the early 1970s Kubota's you share of the United States asbestos cement pressure pipe market was minimal it was about two to three percent as compared to the other -- to the American manufacturers in that market HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The records . from Johns Manville Page 654 Company will also reveal the extent of their business dealings with Mr. O'Bryan -- and you've heard of some of this yesterday so I'm not going to repeat it You will hear that Mr. O'Bryan was a frequent customer of the Stockton Johns Manville plant and that in fact John -- that plant supplied hundreds of thousands of feet of pipe to Mr. O'Bryan when he owned the Concord Engineering The evidence is also going to show that and this is important that Kubota Corporation only manufactured asbestos cement pressure pipe that's different from sewer pipe and different from asbestos cement pipe they did not manufacture those latter types of pipe And you will hear on Mr. O'Bryan's job sites many of them called for sewer pipe or irrigation pipe which was pressure pipe as well as the asbestos cement pressure pipe And you will also hear testimony as Mr. Bratt referred to yesterday that on job it was desired to use all the same type of pipe but those pipes would be compatible with each other The evidence will show that Kubota Corporation was a responsible company they followed the laws and regulations of the time when they sold these asbestos cement pipes The Kubota cement pressure pipe was manufactured in accordance with the industry and governmental standards of the day and was tested by various organizations including the American Society for Testing and Materials ASTM and the AWWWA which is the HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 American Water Works Association Page 655 United -- I'm sorry -- Underwriters Laboratories and INTECO which is International Inspection and Testing Corporation Kubota pipe was also sold to several governmental entities in the United States including East Bay Mud and also the City of Santa Monica the City of Santa Cruz and the Los Angeles Department of Water and Power And you will see no evidence that any of those entities ever advised Kubota Corporation that there was 10 any danger involved in working with asbestos cement 11 pressure pipe In fact some representatives from the 12 East Bay Mud went over to Japan and toured the corporation 13 and facility and you'll see evidence that they approved 14 of what they saw 15 The evidence will show that there are no 16 warnings accompanying the Johns Manville asbestos fiber 17 that was sold to Kubota Corporation for their asbestos 18 cement pipe manufacturing 19 THE COURT Excuse me counsel I just didn't 20 know if you misspoke I have no opinion Did you say 21 John Mansville sold to Kubota 22 MS GAMBINO Yes your Honor 23 THE COURT Thank you I was uncertain 24 MS GAMBINO Thank you 25 THE COURT Excuse the interruption 26 MS GAMBINO Excuse me if I was unclear The 27 evidence will show that the Johns Manville was the company 28 that supplied raw asbestos fiber to Kubota Corporation for HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 656 production of their asbestos cement pressure pipe and there will be no evidence that they ever provided a warning to Kubota Corporation about that asbestos As for Kubota Corporation the pertinent Japanese laws did not mention the cancer risk that was posed by asbestos until sometime in 1975 and this in fact occurred after Kubota Corporation had already made the decision to stop manufacturing asbestos cement pipe because it was unprofitable Specifically on September 10 30th 1975 the Japanese law was changed to identify the 11 risk of cancer in asbestos Kubota learned of this 12 upcoming change shortly before it occurred but after it 13 had already decided to close the asbestos cement pipe 14 plant 15 Given the factors which had made the asbestos 16 cement pipe unprofitable and the fact that now they had 17 been warned of this cancer hazard they closed the pipe 18 very promptly I'm sorry they closed the plant very 19 promptly on November 2nd 1975. So it was just about a 20 month after the law came into effect 21 Now as the jury you will have the chance to 22 weigh and consider all of the evidence and you'll be able 23 to decide if Ms. O'Bryan has satisfied her burden of proof 24 to show that my client had a duty that was breached But 25 I think you will that based on the knowledge of the 26 time when Kubota was manufacturing asbestos cement 27 pressure pipe and Voss companies were selling this 28 product pipe that none of my clients none of my three HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 ," ,, , 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 clients breached any duty to Ms. O'Bryan Page 657 In conclusion I'm just going to remind you that the plaintiff as is their right she will put on her case first and then the defendants will have the chance to put on their case That's why it's so important for you to keep an open mind Defer your judgement until after you have heard and seen all of the evidence and then at that time you will then make a decision And I thank you very much for your time THE COURT Thank very much counsel MS GAMBINO Thank you your Honor THE COURT We'll turn to Ms. Votaw for the defendant Westburne MS VOTAW Good morning ladies and gentlemen I'm going to use a manual digital word processing device so if you'll just give me a minute to set it up here THE COURT Take your time No hurry MS VOTAW There are a few dates with some spellings of the names that I'm going to put up on the board for you I'm not going to write too much My purpose in doing opening statement is to give you what I believe will be an overview of the case The reason for this is because evidence goes in in little pieces it's almost like having a jigsaw puzzle where you don't know what the big picture looks like and you're trying to guess as you get the little pieces So if we can give you a sense of what we think the big picture is going to look like as the testimony comes in you can HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 7 Page 658 better evaluate where you think it's going to go and how it's going to fit into the whole thing As Judge Nichols will tell you nothing I say is evidence so all the evidence goes into the case will have to come from the witnesses and the documents But what I'm trying to do here is to give you an overview I want to first kind of talk a bit about my client which is Westburne Supply And as I mentioned during jury selection the company that we'll be talking 10 about most of the time is a company called P.E. O'Hair= 11 And how that's spelled is P.E. a 12 I have to go back to the 1890s to give you a 13 bit of a history lesson Patrick Edward O'Hair was an 14 Irishman who settled in San Francisco in the 1890s and 15 opened a hardware store As would have it a couple 16 three years after he opened his hardware store there was 17 an earthquake and the earthquak~ destroyed his hardware 18 business and his home But what happened at that point 19 was that as the old Chinese proverb goes with crisis is 20 opportunity All of a sudden there was a huge need for 21 building materials 22 And so what we know is that by 1907 Patrick . 23 Edward O'Hair was in business with a plumbing supply 24 company in San Francisco and we know also that by 1908 25 Patrick's son Donald was involved in that business And 26 as the business expanded and grew various of Patrick's 27 family members got involved with the business so the 28 business prospered and ultimately in the 1930s it was HG LITIGATION SERVICES HGLITIGATION.CHGLITO IGATIM ON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 22 28 incorporated as P.E. O'Hair and Company Page 659 and that's the corporation that existed throughout the existence of that business Now fast forward to the 1930s Actually fast forward to the 1940s and various of Patrick's family members went off and started plumbing supply businesses in various locations And in the 1940s Patrick's granddaughter whose name was Patrice O'Hair married a guy named Walter Krausgrill and they moved to Sacramento and they that was bought called into J.R. an existing plumbing Deterding And I'll supply company write that one down for you too J period R period Deterding n His partner was a guy named Russ Deterding So they built the Sacramento business they expanded it and they had some kids and one of their children was be here next a son Kevin and week or the week he's the after to guy whose going to testify in this case So going all the way back to Patrick Kevin is the great grandson of Patrick Edward O'Hair who was the patriarch who started the company By the 1930s when P.E..O'Hair was fully in business and incorporated they had pretty much established the model for their plumbing supply stores They sold anything that could be used or needed in the plumbing trade They sold thousands of products They sold products from hundreds of manufacturers They had no HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 660 particular relationship with any manufacturer or any product line other than they sold what was demanded in whatever market they were working in And this varied from store to store so that the Sacramento store for example might not sell the same San Francisco store because the materials as the plumbing demands were different in those different areas There was -- they were not centralized and whatever was sold was determined by the particular owners and manufactures of that particular location It was what the customers market at the demanded time what was used . what was on the And indeed some of the products they sold contained asbestos because that's what was used that was demanded at the time And one of the products that was sold at some of the branches during some years was asbestos cement pipe that's not in dispute Another branch that want to mention because it will become an issue in this case for you is the Stockton branch So just about the same time the Sacramento branch was being -- I should call it a store because it wasn't a branch at that point At the same time that store was being opened by the Krausgrill family another law and his family with some unrelated people opened a plumbing supply store in Stockton and that one was Western Plumbing Supply And it just like all of the other stores whatever they sold there was what was in demand in the Stockton area it may have been HG LITIGATION SERVICES HGLITIGATION.COM . TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 different manufacturers different products Page 661 The only thing that was related with these all these different stores was that they were all generally members of the O'Hair family and they were business those are the only all two in the plumbing factors supply So what happened then over time American business changed And it became obvious that centralization was beneficial to everyone and so in 1975 P.E. O'Hair the P.E. O'Hair Corporation invited all of the family members with all of their different stores to become part of the P.E. O'Hair Corporation and this transaction took place somewhere in 1975. These various stores around Northern California all became P.E. O'Hair stores And so that date is 1975. this down here for you I just want to get One more date that I wanted to give you for the Deterding branch happened in 1971. that's the Sacramento branch and that And what happened in 1971 was that Patrice Krausgrill and Walter Krausgrill bought out Russ Deterding so the store at that point in time became exclusively owned by the Krausgrill family And when that occurred they changed the name of that store from J.R. Deterding to O'Hair Supply that happened in 1971 That's important too And Kevin Krausgrill you'll hear from started working in the J.R. Deterding branch when he was old enough to pick up a box and he then continued to work in that branch summers weekends off and on working with HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 662 his dad worked with Russ Deterding until he left to go to college and then ultimately was in the service and then came back to the P.E. O'Hair Company and became a -- ultimately he became the president of the whole corporation in the 1980s But in the late 1970s Kevin opened a branch of what was then the whole P.E. O'Hair Company in Pittsburgh and he has since that time maintained a residence in Clayton where he and his wife currently You'll get some more history from him live today He left -- let me give you one more piece of history before I move on and that is that in 1988 the entire P.E. O'Hair Company was sold to a Canadian corporation called Westburne Supply So 1988 sale -- this is way past the exposure period in this case so it doesn't have all that much bearin-g- but it became Westburne Supply really And Kevin at that point was the president of P.E. O'Hair He and then he left stayed on for a few years completely He no longer with Westburne has any association He's off doing his own business and I'm sure he'll be happy to tell you about that Westburne Supply ultimately divested itself of all the plumbing supply business in the United States so that one of the reasons that I won't have a company representative here is because we don't have one there isn't one So that in a nutshell is a bit of history about HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 } Page 663 the P.E. O'Hair Corporation and what you will be learning So what does all this have to do with Pamela O'Bryan Well as other counsel have told you when we received this lawsuit we did our own investigation And essentially we did all of the same kinds of things We took depositions we subpoenaed records we interviewed people We of records went out and you know We did all of the work talked to custodians we could do to evaluate this case And the conclusion that was reached by Westburne was that neither P.E. O'Hair nor any predecessor of P.E. O'Hair was a supplier of any asbestos cement pipe to Concord Engineering that Mr. O'Bryan could have been exposed to We simply think that you will conclude after the evidence is in that there's just no evidence of that So what do we know We know that Mr. O'Bryan gave testimony and we asked him questions And what he testified to and what the evidence will show is that he personally never went to a P.E. I'm using the term P.E. O'Hair O'Hair location Now when I want you to keep in mind that I'm using the term P.E. O'Hair collectively to refer to both P.E. O'Hair and the companies that preceded it during this period of time And here's why the dates are important Mr. O'Bryan claimed that he was exposed to asbestos from 1962 to 1977 -- I'm sorry And in fact his last possible exposure to any P.E. O'Hair product would have been 1976 because in 1976 he went to work for -- he testified that | HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 he went to work for a refinery one more job involving asbestos Page 664 and after that he only did cement pipe and he knew that that pipe was supplied by the developer so there's absolutely no evidence that it came from P.E. O'Hair So the last possible date for P.E. O'Hair could be 1976 So what did Mr. O'Bryan testify to He testified that he never went to a P.E. O'Hair location anywhere -- anywhere He never went to the Stockton store he never went to the Sacramento store He said he was driven by the Sacramento store one time by his brother and his brother pointed it out and said that's P.E. O'Hair He never ordered any materials of any kind from P.E. O'Hair or anybody else He didn't see any markings or logos on any of the trucks that delivered any material He didn't recall the name of any other supplier including the names of the predecessors you know And we asked him We asked him several times can you remember the names of any other suppliers that supplied materials Concord and his response was that he there were Engineering other suppliers but he couldn't remember any of their names So given all this we asked him well since you can't remember any of this how is it that you believe that P.E. O'Hair provided any of these materials And what he told us in his deposition was because he saw the name P.E. O'Hair on the paperwork that was given to him by the truck driver Now significantly when we also asked him HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 665 |. whether Concord Engineering had purchased any materials directly from Johns Manville he didn't recall that's going to become a big issue because as that you've And seen there are lots and lots of documents that concern that So then after we took Mr. O'Bryan's deposition we talked to Kevin Krausgrill and tried to find out what he would say about this to testify to is that Mr. And what we believe he's going O'Bryan could not have seen P.E. O'Hair the name P.E. O'Hair or that logo that Mr. Bratt showed you on any of the paperwork prior to 1975 because the stores weren't P.E. O'Hair stores prior to 1975. So prior to 1975 any of the invoices that came from any of these locations any of the purchase orders any of the documents any of the bills would have had the name of the store that they were at that time which was Western Plumbing Supply or J.R. O'Hair Supply Deterding or from 1971 to '75 Mr. Kevin Krausgrill will also testify that when O'Bryan said that he saw these pipes being delivered by semis they couldn't have come from P.E. O'Hair because P.E. O'Hair didn't have any semi trucks during this period of time nor did Western Plumbing Supply nor did O'Hair Supply or J.R. Deterding It wasn't until much later after the consolidation in 1975 that P.E. O'Hair began to acquire that type of equipment that it could have delivered that quantity of materials Kevin Krausgrill will testify that P.E. O'Hair HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 could never have matched the price for this pipe Page that 666 Concord Engineering was getting from Johns Manville . directly If they had purchased it through P.E. O'Hair there would have been an additional charge beyond the charge that Johns Manville was giving them And Johns Manville according to the documents that you will see was giving them the best possible price they could have because of the huge quantity of pipe Concord Engineering was buying from Johns Manville Finally Kevin Krausgrill will testify that he in worked in the Sacramento branch he knew the customers the Sacramento branch his dad was in the Sacramento branch they had regular family dinners and he never heard of Concord Engineering He did hear of a whole lot of other contractors who were installing asbestos cement pipe up in the Gold Country where Mr. O'Bryan's company was working but he never heard of that one Now on the Johns Manville issue Again I'm not going to go into that in any detail because you know Mr. Berfield has already pretty well discussed that for you But I do want to mention one additional thing which is that in addition to evaluatin thge quantity of the pipe that Johns Manville sold to -- directly to Concord Engineering one of the projects that we undertook was to look at the location where Johns Manville direct deliveries were made of that pipe in other words when it left the plant where did they take it to And we were able to take the list of job sites that Mr. O'Bryan HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 . testified that he recalled working Page 667 and match them up to the records from Johns Manville directly and we determined that every single job site Mr. O'Bryan testified where he worked whether it was Big Trees or Pollock Pines or wherever it was every single one of those there are documents showing that Johns Manville directly delivered that pipe to those job sites P.E. O'Hair does not have any records I talked during voir dire briefly and you may recall 10 about you know putting yourself back into those times 11 and ages During the 1970s and 1980s Kevin Krausgrill 12 will tell you P.E. O'Hair didn't have computers so any 13 kind of a sales record that was done from a P.E. O'Hair 14 store would have been handwritten It would have been 15 handwritten either by the counter guy or handwritten by 16 the salesman and there would have been hundreds of 17 thousands of them and they were routinely destroyed 18 So can P.E. O'Hair disprove that it sold 19 anything to Concord Engineering No. But we can 20 establish that P.E. O'Hair was never a major supplier of 21 asbestos cement pipe to Concord Engineering and in fact 22 there's really no evidence no credible evidence that E 23 O'Hair ever sold any asbestos cement pipe to Concord 24 Engineering at all 25 So as Ms. Gambino pointed out there's a 26 liability issue here there's a causation issue We 27 believe that once all that evidence is before you and it 28 will be before you that you will conclude as we have HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL ~ VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that P.E. Page 668 O'Hair has no responsibility for selling any product to Concord Engineering that could possibly have allowed Ms. O'Bryan to have been exposed to asbestos fibers So then the next issue that we move onto is the cause of the plaintiff's mesothelioma and Ms. Gambino will mentioned this We will put on expert testimony on the issue of other causes of mesothelioma We believe that the experts the plaintiffs put on will admit that there is a significant percentage mesotheliomas in women where there's no known relationship to asbestos and they're called idiopathologic And the studies will show that that number ranges anywhere from 10 percent in women all the way up to 60 percent in women In addition to that there are other potential causes of asbestos that are unrelated to the occupational exposures that Mr. Bratt is going talk about and those would include exposure to ambient asbestos There's asbestos that occurs naturally in the ground because it's a mineral and there known to be outcroppings of this naturally occurring asbestos in El Dorado County where the O'Bryan family lived and worked And you saw Mr. Berfield's picture of the trenches yesterday So there's also -- I'm sorry -- that's naturally occurring asbestos There's also ambient asbestos which is just in the air everybody breathes it The experts will talk about this And then there's another product that's HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 called erionite which is known to Page 669 cause mesothelioma which has absolutely nothing to do with asbestos it's another mineral that -- and there are deposits of this particular mineral in born and raised until South Dakota where she was a child Ms. O'Bryan was So what you're going to find is that when we asked the experts whether they can rule out any of these as potential causes of Ms. going to say they cannot O'Bryan's mesothelioma they're So that's going to be the evidence that we anticipate you will get on causation Finally I want to talk just very briefly about the evidence that we anticipate you will see with regard to what P.E. O'Hair knew about the hazards of asbestos at various points in time P.E. O'Hair was a supplier didn't all it manufacture anything was a store And the it didn't install anything evidence will be that P.E. O'Hair learned about asbestos about the same time that Mr. O'Bryan did And they learned about the hazards of asbestos through public media magazines and newspapers like pretty much everyone else And with regard to the specific issue of asbestos cement pipe you'll learn that the very first studies that implicated asbestos cement pipe as the potentially troublesome product were done in 1977 after the last year that Mr. O'Bryan could possibly have been exposed to asbestos from P.E. O'Hair And because prior to that essentially I'm sure many of you have heard the terms that -- encapsulated --- it was believed that because HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 asbestos cement pipe enclosed the asbestos Page 670 fibers with cement that this was not a product that anybody had to be concerned about It wasn't until 1977 that the realization came that it was potentially a problem that people had to be concerned about and we will present -- we're going to present an expert on the state of the art who will talk to you about how that whole process developed and how after that period of time after 1977 when this became known warnings developed materials developed that said don't cut it with a power saw all of that happened But during this period of time that Mr. O'Bryan claims his exposure that knowledge was simply not known So we believe that once you hear all this evidence you will conclude that P.E. O'Hair has no liability in this case and while we sincerely sympathize with the fact that Ms. O'Bryan has this disease and is undoubtedly extremely ill there's no reason for assessing any part of that responsibility to the P.E. O'Hair company One thing I just want to caution you as Ms. Gambino did There will be a lot of dates a lot of specific facts in this case At the end of the case I will probably put up a timeline for you giving you you know dates when P.E. O'Hair did things and dates when the plaintiff did things Please try and keep an open mind until the end of the case The plaintiffs go first and then after that we get to put our case on We're going HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM ' TRIAL - VOLUME 7 to kind of do it alphabetically I think Page 671 |}: | so Westburne will probably be at the end So please don't make any conclusions until you have heard all the evidence THE COURT Thank you very much Ms. Votaw I think it's appropriate now to take a minute recess witness after the and then recess we'll First begin with our stretch break first Please remember the continuing admonition not to discuss the case form or express an opinion do any research that 10 kind of thing Thanks a lot 11 A recess was taken End Section A 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APRIL 16 2014 Page 672 - 10:46 A.M. --- THE COURT We are all together Mr. witness Bratt whenever you are ready to call a MR BRATT Before we call our first live witness I would like to read a few interrogatory responses that were filed and sworn and verified by the Defendant Kubota Corporation THE COURT . Now let me just ask just for record keeping are these in the -- one of the exhibits just so that we -- I don't know if they are or not Just to maintain a proper record MR BRATT They may or may not be I apologize Your Honor THE COURT Why don't you just identify them clearly the interrogatories and the dates -- MR BRATT Sure THE COURT and look at them -- so that counsel can dig them out MR BRATT yesterday I exchanged these with counsel THE COURT Oh I see Why don't you proceed MR BRATT Sure And Your Honor the jury instruction for the -~ did you read THE COURT Yes I'll just indicates its preface and counsel can set this up During the course of litigation during HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 the life of this litigation Page 673 the attorneys were able to send to parties interrogatories They are on standard Judicial Counsel form and they have certain definitions and questions and then the party to the litigation can sit down and go over what the appropriate answers are And so those are to be treated just as if someone was here testifying in life It helps for pretrial preparation and it is otherwise admissible can be used at trial 10 So if you'll identify who was -- this 11 will be the first time we'll hear this We'll find out 12 who is the propounding party the person who sent them 13 off Who is the responding parties and each party has 14 to be evaluated on its own facts So as it relates to 15 the propounding party and responding party We'll find 16 out who they are and when the answers were provided 17 MR BRATT T Thank you Your Honor The 18 responses that I'll be reading to you are Defendant 19 Kubota Corporation's Amended Responses to General Order 20 129 Interrogatories to Defendants and they are from a 21 group of cases in San Francisco and the group was 22 called in re -- 23 MS GAMBINO Excuse me Your Honor May we 24 approach please THE COURT Yes Come on up here 26 Sidebar discussion had not reported 27 MR BRATT Your Honor in re e Complex 28 Asbestos Litigation The interrogatories were signed on HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 July 27th 1998 and they were verified by an Page 674 individual Takashi Arimori T m solemnly affirm under penalty of perjury that I am the manager of the International Legal Section of Kubota Corporation and I verify the foregoing amended responses to general responses to General Order 129 Interrogatories to Defendants on its behalf that . the matters stated therein have been assembled by authorized employees and counsel of Kubota Corporation and I'm informed the facts stated therein are true It was executed on July 22nd 1998 in Osaka Japan And I will read just a few of these and then we'll do our first witness The first one is Interrogatory Number 30 reading Between 1930 and 1985 did you ever engage in any of the activities listed below with regard to containing products If so state the inclusive dates of such activity a Supply b Importing c Distribution d Marketing e Sale f Labeling g Manufacturing and h Brokering As to a for Supply Yes 1960 to HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL - VOLUME 7 1975 Page 675 As to b for Importing No. As for c for Distribution No. Kubota distributed most of its asbestos pipes into the United States through a distributorship agreement with Marubeni and Voss Voss solicited customers in the United States and sold directly to those customers Kubota did not keep any records of the sales from Voss to its customers 10 d Marketing No. Kubota distributed 11 most of its asbestos pipes into the United States 12 through a distributorship agreement with Marubeni and 13 Voss Voss solicited customers in the United States and 14 sold directly to those customers Kubota did not keep 15 any records of sales from Voss to its customers 16 Under e Sale No. Kubota distributed 17 most of its asbestos pipes into the United States 18 through a distributorship agreement with Marubeni and 19 Voss Voss solicited customerisn the United States and 20 sold directly to those customers Kubota did not keep 21 any records of sales to Voss to its customer 22 f Labeling No. 23 g Manufacturing Yes From 1954 to 24 1975 25 h Brokering No. 26 MR BRATT And that is the only one I want to read now Your Honor We'll call our first witness 28 THE COURT That completes that reading You may HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 call your first witness Page 676 MR BRATT We would like to call Mr. Uchino the THE COURT Please oath administered come forward 7 And we'll have interpreter Will Mr. Uchino be aided by an MR BRATT He will THE COURT We'll give the oath to interpret THE CLERK Are you interpreting Japanese 10 THE INTERPRETER Yes 11 THE COURT Thank you 12 Whereupon the Japanese interpreter was 13 sworn to interpret for the witness from English to 14 Japanese and from Japanese to English the following 15 proceedings THE CLERK May I have your first 16 and last name please . 17 THE INTERPRETER My first name Masako 18 k last name is Houston as in Whitney 19 THE CLERK Houston Got it 20 THE COURT And we'll have the oath administered 21 to this gentleman 22 THE CLERK Would you raise your right hand 23 24 MASAHIKO UCHINO 25 Having been called as a witness on behalf of the 26 Plaintiffs under Evidence Code 776 was first duly 27 sworn examined and testified as follows 28 THE WITNESS Yes I do HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE CLERK Thank you Page 677 Would you please be seated State your first and last name for the record and spell each please THE WITNESS My first name is Masahiko M My last name is Uchino n THE CLERK Thank you we'll THE COURT Ladies have an interpreter and gentlemen it may be that with other witnesses I don't know but I want to make a brief statement to explain how we will proceed Are you calling this witness under 776 MR BRATT Yes Your Honor THE COURT The law permits a party to a lawsuit to examine an opposing party or opposing party representative in a little different way than if they call their own party or witness is more leeway in it in other words there | THE COURT The question can proceed in the nature of examination which in someway allows leading questions and the like something not permitted when one calls its own witness or party But the law also prescribes a function for me in every case under 765 and of the manner Evidence Code which is to prescribe the mode of interrogation as to avoid confusion and elicit now is truthful a little testimony accurately What I will say . bit more extensive than I would with other witnesses but it really goes as follows First good morning sir HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE WITNESS Good morning Page 678 THE COURT Every witness is treated with respect These are fine lawyers It would be helpful sir if because you if you pause for just a moment and it helps there is an interpreter after the question is asked If you do not understand the question through the interpreter make it clear through the interpreter Would you do that THE WITNESS Yes THE COURT Also even assuming we have the very finest interpreter you know the phrase something lost in translation So we want to take care even though some leading is permitted to make sure that the questions are direct and straightforward And for example counsel asked you one question after the other and they won't be several grouped all together That serves two functions One is to be clear But the second is that if the question is clear and a single question and you can answer it yes or no do so Sometimes the question of this kind is a direct question that calls for a yes or no answer and the witness feels there is a lot more I could say But the general counsel would be that unless it is necessary to give an accurate answer just wait because in this case other counsel will be able to ask questions on the same subject matter to flesh it out should they choose to do so Do you have any questions THE WITNESS No thank you Your Honor HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 THE COURT Thank you Page 679 I just extended these courtesies to everybody but I think with an interpreter it may be helpful to get through things in a clear manner MR Mr. BRATT Bratt you may go forward Thank you Your Honor 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BY MR BRATT DIRECT EXAMINATION under 776 . Q Good morning sir THE INTERPRETER Hold on apologize How are you I'm sorry I great THE WITNESS Good morning Actually I feel I slept well last night MR BRATT Q Wonderful I have some questions for you And there is about an inch worth of questions in these folders and I will try to move through them quickly Mr. Uchino you have traveled all the way from Japan to testify in this case is that correct A Yes that is correct Q How long was the flight A It was about hour long Q And where do you live in Japan A I live in the City of Kyoto which is near Osaka Japan Q that true And you work for Kubota Corporation is HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A Yes that's correct Page 680 j Q that true And Kubota is based in Osaka Japan is A Yes that is correct Q Have you ever had to come to the United States to testify before A time No. Never before This is my very first Q A 10 A Q A Q asbestos How old are you sir Fifty And what's the date of your birth My birthday is February the 15th 1963 How long have you worked for Kubota Twenty years Are you Kubota's expert with respect to . A No. Kubota's expert I wouldn't consider myself as Q asbestos Do you have any formal training in A No I did not receive any formal trainings with regard to asbestos Q Kubota What is your job title currently with A Department I am a manager of a General Affairs Q Can I have that read back THE COURT The Manager of the General Affairs HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Department Page 681 MR BRATT -- Is it true you did not work for Kubota when it 1954 to 1975 manufactured asbestos cement pipe from A That is true Q Let me backup and ask you what the General Affairs Department does What is it A General Affairs Department takes care of general business affairs including sales part of 10 business marketing -- excuse me engineering part of 11 business or manufacturing part of business and research 12 and development part of business Specifically General 13 Affairs Department is responsible for human recourse 14 issues finance issues any other management issues 15 Also we are responsible for operating and facilitating . 16 shareholders meeting We also are responsible for 17 management real estates we have and any other issues 18 that needs to be facilitated in the office 19 Q You've been with Kubota for 29 years 20 So you started in 1985 is that correct 21 A Yes I joined Kubota Corporation on 22 April the 1st 1985 23 Q And you would agree you have no personal 24 knowledge about anything that happened at Kubota prior with 25 to the date that you started the company in 1985 me 26 A If you are asking if that is something 27 I have seen -- I have seen and heard directly you are 28 right No I did not HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 7 Q met before A Page 682 Now it's true that you and I have never Am I right about that Correct Ms. Q And you've never met my client Pamela O'Bryan is that true A That is correct I have not met her before Q And you understand that you flew over from Japan to testify in this lawsuit because 10 Ms. O'Bryan has been diagnosed with mesothelioma is 11 that correct 12 A 13 yes My understanding of her condition is so 14 Q And you are aware that mesothelioma is an 15 asbestos cancer is that right 16 A I am not a medical doctor so I really 17 don't know the details but in general I understand 18 that is what people are talking about 19 Q Not just people but that is what Kubota 20 is talking about correct 21 MS GAMBINO Objection 22 THE COURT Sustained It is a little confusing . 23 here unless you are asking for expert So I would 24 suggest you be a little more direct as to avoid 25 confusion 26 Ask another question 27 MR BRATT Q Kubota as a company is aware 28 that asbestos causes mesothelioma is that true HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . Page 683 A I apologize by repeating the similar answer I am here as Kubota Corporation's representative however I don't know whether or not Kubota knows whether mesothelioma is caused by asbestos that is something beyond my knowledge Q Is there someone at Kubota besides you that is a better person to talk about in regards to what Kubota knows about asbestos and mesothelioma A No I don't believe so Q Who makes the decisions at Kubota about what to put into various documents like annual reports THE COURT Let me just pause for a moment Because there is such a range of business documents are you focusing now on the annual reports MR BRATT Yes Your Honor THE COURT Thank you THE WITNESS The annual report is prepared by one of our departments called CSR Management Department MR BRATT Q And is there someone within the -- strike that CSR stands for what A It stands for Corporate Social Responsibilities Q Is there someone at Kubota within the CSR Department that has knowledge about asbestos and mesothelioma A We are manufactures No matter who you HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ask Page 684 I don't think there is anyone that knows more than I do Q Well you are aware sir that Kubota files an annual report every single year to communicate information to its shareholders correct A Yes That is correct Q And Kubota's honest when it files those annual reports correct A Yes Q They don't want to mislead their investors correct A Correct We don't do that Q The annual reports of Kubota are available on Kubota's website correct A Yes MS GAMBINO Excuse me counsel Your Honor may we approach the bench I'm sorry here THE COURT Yes We'll take a little stretch Sidebar discussion had not reported THE COURT Okay We took a little break Sweet reason works and I think we have an agreed way to go forward MR BRATT Thank you Your Honor MR BRATT Q Mr. Uchino has Kubota Corporation in its annual reports acknowledged that there is an association between asbestos and mesothelioma HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 685 A I believe it stated in its annual report that asbestos might be a cause of mesothelioma I think that something along that line that thing is stated in the annual report THE COURT Thank you MR BRATT 0 You will agree with me that the annual reports since 2006 up until present day 2013 had all had a section related to asbestos health hazards MS GAMBINO Objection calls for speculation THE COURT As you sit here do you have in mind the content of the annual reports between 2006 and 2013 on whether there isa relationship between asbestos and mesothelioma THE WITNESS I have a vague something in that nature might have recollection been stated in the annual reports but I do not remember it clearly THE COURT Thank you MR BRATT Q Has Kubota acknowledged that some of its employees that were exposed to asbestos in the asbestos cement pipe that it made have been diagnosed with mesothelioma A Yes it has Q Has Kubota acknowledged in its annual reports that people that lived within the neighborhood in the vicinity of its asbestos cement pipe plant have been diagnosed with mesothelioma A Unfortunately I don't have a clear HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 686 recollection of that type of statement has been made in any of our then annual report clearly MR BRATT Your Honor the 2010 -- I would like to pull up THE COURT Before you show -- publish do you want to show him something to refresh his recollection MR BRATT Sure THE COURT Show it to counsel MR BRATT Your Honor may I approach 10 THE COURT Something to refresh recollection it 11 is treated differently 12 MS GAMBINO Your Honor maybe we need another 13 sidebar 14 THE COURT Okay Sidebar discussion had not reported 16 THE COURT Mr. Bratt you may approach the 17 witness 18 MR BRATT Thank you Your Honor 19 THE COURT Show him the document and then ask 20 the interpreter to quietly read to him to see if it 21 refreshes his recollection 22 MR BRATT For the record Your Honor I've 23 handed the witness an excerpt _ 24 THE COURT It is a page that you believe comes 25 from the annual reports 26 MR BRATT Yes 27 THE WITNESS Reviewing Thank you H 28 understand HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIM ON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE COURT Counsel may inquire Page 687 MR BRATT Q Have you had an opportunity to review the document in front of you A Yes I just read it Q Does the document refresh your recollection as to Kubota's acknowledgement that people that lived in the neighborhood in the vicinity of the asbestos cement pipe plant have been diagnosed with mesothelioma A Yes I do And so you would agree that in April 2005 Kubota was advised that some residents who lived near the former plant suffered from mesothelioma a form of cancer caused byasbestos . THE COURT Were you reading that that was said to be mainly caused by the aspiration of asbestos can MR BRATT I wasn't quoting Your Honor but I MR company was BRATT advised -- some You would agree sir that the residents who lived near the former plant suffered from mesothelioma a form of cancer that is said to be mainly caused by the aspiration of asbestos A Yes I agree with you because that is exactly what is written here as you read it Q Do you know who wrote this for Kubota A No I don't Because this is not a document responsible under the department I was with HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 688 Q Would you agree that in June of 2005 Kubota made a decision to act seriously and faithfully concerning the issues of asbestos hazards A Yes Yes it did Q And this is Kubota's view under the CSR the Corporate Social Responsibility that you talked about because it was once a company that made containing products fora long time is that . true 10 A Yes as a company which once dealt with 11 asbestos and from the viewpoinotf Corporate Social 12 Responsibility we made this announcement in June of 13 2005 to announce that we are going to deal with this 14 issue 15 Q What do you mean deal with this issue 16 A I am sure you have heard the term a 17 corporate citizen Corporate is a citizen in terms of 18 the people who is living around the corporation What 19 we meant by deals with this issue was if there are 20 people who actually suffered from our plant then we 21 wanted to compensate their suffering by possibly 22 providing them with some money so that they can use it 23 as a part of their treatment 24 Q Has Kubota come up with a plan under CSR 25 to deal with people that have been injured -- that have 26 used the asbestos cement pipe 27 A No I didn't make a plan The people who 28 are applicable for our measure were those used to live HG LITIGATION SERVICES HGLITIGATION.CHGLITO IGATIM ON.COM TRIAL - VOLUME 7 near our plant Page 689 Q Why not product users the asbestos cement pipe People that used MS GAMBINO Objection lacks foundation THE COURT Sustained I. think the activities in 2005 and thereafter are somewhat collateral to the issues that are relevant counsel MS GAMBINO Thank you Your Honor MR BRATT Thank you Your Honor 10 THE COURT You're welcome 11 MR BRATT Q And you would agree that Kubota | 12 in its annual reports needs to continue this problem 13 with sincerity in the future 14 MS GAMBINO Objection lacks foundation 15 THE COURT Are you asking -- repeating what was . 16 said there indicating? 17 MR BRATT Your Honor it is not from that 18 document I'm asking him the question and if he 19 doesn't acknowledge that or remember that then we'll 20 deal with it then 21 THE COURT The question is lack of foundation 22 If he has knowledge and if that's the only objection 23 then I'm permit him to answer 24 THE WITNESS Excuse me what was the question 25 MR BRATT Well I'll probably screw it up So 26 can I have it read back please 27 Whereupon the question was read in open 28 court by the Certified Court Reporter HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE WITNESS Yes Page 690 MR BRATT Q Do you know where the former Kubota asbestos cement pipe plant is located A Yes I do Q And where is it A It was located Hyogo Prefecture in Japan the City of Amagaski in THE COURT Can you spell that THE INTERPRETER on please Of course | Your Honor Hold The City of Amagaski m Hyogo Prefecture Japan y THE COURT Thank you THE INTERPRETER Thank you MR BRATT Q And do you have an address for the former plant location in mind Do you know where to -- that is a bad question Let me just make it clearer Strike it Do you have an address of the former plant location A No I don't Q Have you been there A The plant is no longer there however the same exact location now we have an office So I've been to the office but when it was occupied by our plant no I did not go there Q Would you agree that the location of the office which used to be the location of the plant is HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 at Hama m 1-1-1 Amagasaki Hyogo 6618567 Page 691 A Although I don't remember the exact street address if sounds familiar Most likely be so Q If I showed you map of Amagasaki do you think you could put an X to proximate where the plant used to be located and where the office is now A Not knowing what map you are going to show me I cannot know for certain But I would like to give my best shot MR BRATT Your Honor may I approach THE COURT Yes MR BRATT Items proffered mark THE WITNESS Reviewing ) THE COURT Are you asking the witness to put a as his best approximation of the location on that map MR BRATT Yes please THE COURT the former plant On the office and also the site of THE WITNESS I think it is here indicating H remember it was near Amagasaki train station MR BRATT Your Honor may I approach THE COURT Sure MR BRATT For the record a black dot was placed on here and if I can mark it as exhibit -- THE COURT We'll mark it for identification MR BRATT the ELMO please Exhibit 500. And if I can put it on HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 THE COURT publish it Marked for identification |. Page 692 | You may Plaintiff's Exhibit No. identification 500 marked for . MR BRATT -- Sir if you stand up and make it clear to the jury where your black dot is If you could stand up and just point it out A It is right there indicating Q Just to make it more clear can we put an 10 X on it so it sticks out a little more indicating ? 11 THE COURT Counsel put an X. X marks the 12 spot 13 MR BRATT Thank you Your Honor 14 MR BRATT Q Sir have you ever seen any 15 aerial photographs of the plant when it was in operation 16 in making the asbestos cement pipe 17 A 18 before Yes I have seen an aerial photograph 19 THE INTERPRETER Counsel this is Officer 20 Interpreter speak Just wanted to let you know in 21 Japanese language there is no difference between plural 22 and singular So when witness said I have seen 23 pictures in Japanese there is no way of me knowing if 24 it is one picture or more than one picture So if 25 quantity is important in your question please clarify 26 him 27 " MR BRATT Yes Sure 28 MR BRATT Q Have you seen just one picture HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 or have you seen multiple more than one pictures Page 693 of the plant A The pictures I have seen ~-- because actually two maybe three and it was not directly above the factory ratheirt was an aerial picture of the city . including the factory MR BRATT Your Honor may I approach I have an aerial picture MR BRATT Q I want to know if this is one 10 that you've seen before or something similar item 11 proffered? 12 A Reviewing Pictures I have seen were 13 much wider I remember seeing a plant but I also 14 remember I was able to see wider range of the city 15 Q Based upon the pictures you have seen 16 does that picture appear to be an accurate picture of 17 the plant 18 A 19 picture Yes I think this is an accurate 20 MR BRATT Your Honor may I approach And for 21 the record we'll mark this as 501 22 THE COURT That is fine 23 Plaintiff's Exhibit No. 501 marked for 24 identification 25 MR BRATT And if we can display it to the 26 jury 27 THE COURT No objection you can show that out 28 in the open So that is an aerial view you agree HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM TRIAL - VOLUME 7 counsel Page 694 MR BRATT Yes This is an aerial view MR BRATT Q Now sir this is the Kubota asbestos cement pipe plant and Kubota stopped making asbestos cement pipe at this plant in 1975 is that true A Yes That's correct Q The plant itself did it continue to make other containing products after 1975 10 A That's correct We stopped manufacturing 11 asbestos cement pipe in November of 1975 however we 12 continued to manufacture roofing materials and siding | 13 materials containing asbestos 14 Q As a company Kubota kept making asbestos 15 products up until 2001 is that true 16 A Yes that is true 17 Q And are you aware of any scientific 18 studies that have been performed related to the 19 neighborhood around the asbestos cement pipe plant 20 focusing on asbestos and asbestos diseases 21 A Yes I am 22 Q And is Kubota aware of those medical and 23 scientific studies related to the neighborhood around 24 the plant and asbestos diseases 25 A Kubota is aware that there are studies 26 done in those subject 27 Q And is Kubota aware that the studies have 28 shown that the people living within a 1,500 meter radius HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 695 of the pipe plant have an increased risk for developing mesothelioma A Kubota is aware that there are some studies that concluded as you described as their studies however with regards to the contents of these studies there are several different opinions Q I want to shift gears slightly and ask about anything that you might know related to Kubota's selling of their asbestos cement pipe in the United 7 10 States okay 11 A Yes 12 Q Kubota sold pipe in the United States 13 through a company called Voss correct 14 A Yes 15 Q And Kubota imported the pipe into 16 California correct 17 A No. 18 Q Kubota -- 19 THE INTERPRETER Counsel because you said . 20 imported 21 MR BRATT It's been a long morning 22 THE COURT Be alert counsel 23 MR BRATT Thank you 24 MR BRATT Q Kubota exported asbestos cement 25 pipe into the United States and it came into the ports 26 of California correct 27 A I guess that is how it is done but we 28 were not exporting our product directly to Californioar HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to Voss they were We had a train company exporting our products called Marubeni on behalf of us Page 696 So Then Marubeni would export our products to Marubeni USA and then Marubeni USA brought the product to Voss That is how it was done contractually I don't know how it was actually done THE COURT We are going to take our lunch and recess now Please remember at 1:30 to come back Not to discuss the case or form or express any opinions Thank you so much Whereupon ends Section B. the noon recess was had This ---000--- HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM - TRIAL - VOLUME 7 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 26 27 28 Page 697 1:30 P.M. THE COURT Everybody is so careful Thank you Mr. Wood disclosed he was going to get a cup of coffee and a person said can you tell me where Main Street is and he pointed and it turned out that it was a juror He disclosed that to plaintiff's counsel Thank you These things can happen bending over backward We appreciate people Anything MR BERFIELD One request would be for counsel to move the book entitled Asbestos Disaster MR BRATT or after lunch I just set it there before lunch THE COURT It wasn't there before with Let me indicate that I counsel and they're going to worked through lunch -- they have the deposition of Mr. Ambler that they'll edit I'm told that we'll continue with the witness this afternoon and probably have sometime for some deposition work this afternoon MR BRATT And for the record as well I've spoke with Mr. Wood about this After a deposition is read or played via video we will be filing some sort of pleading to the record for is as to what the jury has -- to establish what seen the record THE COURT Very good You do that in - either by way of in connection with the text that is there or in some manner acceptable to our clerk that's HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 the important thing Page 698 recognizing that if there's a request for read back that transcript does not go into the jury _ room right There would be -- it would just be played back read back in some manner Do you agree that every time the deposition is shown on a video and the transcript is lodged that we may go off record indicating that the video deposition is now being displayed counsel know what portions it will be that's presented as their testimony without the court 10 reporter taking it down again Is that agreeable 11 MR BRATT Yes 12 MS GAMBINO Yes 13 MS VOTAW Yes 14 MR BERFIELD Yes 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE COURT I have been provided with more documents And this is only with a sense of humor that they are all marked courtesy copies Large volumes of cases that claim some sort of an alarm I will read them all with care and deal with you in due course on that As to the deposition there was a brief reference earlier with Mr. Trey Jones something about a deposition I pointed you all back to the statute Satisfy yourself on what the transcript says and what the statute says If there's an issue for me to decide I will decide it But at least when I last looked at it it did not appear to me that that witness could be called in the plaintiff's case on the basis that he was within the subpoena power living locally But a new point was HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 raised by Mr. Jones . Page 699 After you have met and conferred if somebody wants to argue that issue we can do that MR JONES We'll look at the transcript and discuss it before we bring it back to your attention jury THE COURT Okay Are we ready to call in the Okay thank you We should be going forward okay The jury enters the courtroom THE COURT Good afternoon We're all together We'll come to order now We're going to continue with the direct examination in progress in just a moment And once we're if we have time this afternoon there will probably be some deposition presentations either by reading out loud or through video presentation however that works out Just a reminder on the preliminary instructions -- these things can whistle by real fast -and so I'll just repeat something I said before Recognizing I urged consideration of being cautious about asking questions for the reasons that I had indicated nonetheless if a juror asks a question the procedure would be to simply write it out legibly signing your name and putting the time and date so we can read the name and just raising your hand and our bailiff would pick it up I would at it at some convenient time I would show it to counsel If it's incorporated into questioning then you just deal with it that you But do not wrote a note discuss with fellow jurors the fact or whether you're satisfied with HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 the answer or that type of thing And please Page 700 for the reasons I suggested earlier be sure it's something to the point that asks a question and in no way comments or offers an opinion on the case because that would be something that we're obliged not to do And then I would show the note if any to counsel of course And it takes a little while to do that We might not just interrupt at the moment but I would certainly show it to him 10 11 exam We are ready to go forward with the direct 12 MR BRATT Thank you Thank you your Honor 13 BY MR BRATT 14 Q. I only have six more folders for you 15 When we broke for lunch we were talking about 16 Kubota's sales of asbestos pipe in America And I have a 17 follow question Is it true that all of Kubota's 18 asbestos cement pipe was shipped into California 19 A. My understanding is that almost all of the 20 pipes we made were shipped to California but some smaller 21 portion of our products were also shipped to somewhere 22 outside of California But if you ask me specifically 23 where or how much I don't know the details 24 Q. So it's fair to say that you're not aware 25 specifically of any other states within America that 26 Kubota shipped its asbestos pipe 27 A. Yes that is correct 28 Q. And Kubota shipped its asbestos cement pipe to HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Northern California Page 701 to the East Bay Municipal Water District is that true A. Yes they were shipped for East Bay Q. And the East Bay was the first place that Kubota was shipping and marketing its asbestos cement pipe in America true A. I don't know if they were the first one Q. But you would agree that throughout the time frame that Kubota was shipping pipe to America to be sold that it was consistently throughout that time being shipped to the East Bay A. No I wouldn't because I don't know whether or not we sold our pipes to East Bay continuously without any breaks Q. And Kubota has no records about those sales one way or the other today is that correct A. Correct We don't have any of these records currently Q. And this asbestos cement pipe that was shipped into California for sale in America it was the same pipe that came from the Amagasaki plant that we were talking about earlier correct A. These pipes were made at Amagasaki plant Q. Now counsel for Kubota said in her opening that Kubota only had two percent market share in the United States You would agree that all of the pipe that was sold in the United States came through California A. I wouldn't say all of them I think it's fair HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL - VOLUME 7 Page 702 to say almost all of them came into the United States through California however I don't know the details Q. The Kubota pipe that was exported and shipped over to America was sold in California for 15 years correct A. Well we were talking about from '62 to '75 isn't it If so that's for 13 years However even though in theory we had the presence in 13 years after = 1972 our sales was practically next to none 10 Q. Now Kubota does business all over the world 11 they have factories in other countries other than Japan 12 today isn't that true 13 A. That is true We have offices in North 14 America Asia and Europe And we have our factories 15 outside of Japan too of 16 Q. And Kubota as a company they stay abreast 17 the laws and the regulations of the companies in which 18 they do business -- or the countries in which they do 19 business is that true 20 A. That is correct If you want to do a business 21 at a certain country I think that it is our 22 responsibility to obey and comply with the laws of the 23 particular country and that's what we have been doing 24 Q. And before Kubota began selling asbestos 25 cement pipe and shipping it to America did Kubota look 26 into the asbestos laws in America 27 A. I don't know 28 Q. Did Kubota ever investigate the laws and HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 Page 703 regulations promulgated under the Occupational Safety and Health Administration in 1972 related to asbestos products A. I don't know the details but I don't think we did because OSHA regulations are rules that are fundamentally to protect workers working at the factory We were not doing that We were just a company whose products were being exported so I don't think it is that strange that we didn't investigate OSHA regulations 10 Q. Did Kubota look into any American laws related 11 to workers that were being exposed to asbestos 12 THE COURT One second please Would you 13 clarify the time period once again as to which your 14 question relates 15 MR BRATT Prior to or during the time that 16 they made and sold and shipped asbestos pipe into America 17 THE COURT Thank you 18 THE WITNESS Although I don't know the 19 details I don't think any such investigations were done 20 at that time 21 BY MR BRATT 22 Q. And so was Kubota aware that there were laws 23 that required warnings to be put on asbestos products 24 A. Counsel you are asking up to '75 25 Q. Yes 26 A. We were not aware of any laws requiring me to 27 place warnings on the products before 1975 28 THE COURT This is just one illustration I HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would make the point regardless of who asked it to Page 704 illustrate a preliminary instruction you Aquestion of any one of these that fine I provided to lawyers that suggests the state of affairs is not evidence itself So we've not yet heard evidence about the content of any OSHA regulation but it was a perfectly appropriate question to find out what the witness knew in fact Thank you BY MR BRATT Q. Did Kubota choose to make asbestos pipe in Japan and ship it over to California and sell it in America without investigating laws related to asbestos , dangers MS THE GAMBINO Objection COURT Sustained argumentative MR BRATT BY MR BRATT Thank you your Honor Q. Did Kubota ever place any warnings on the asbestos cement pipe that it sold in the United States A. No we didn't Q. Was Kubota aware of Japanese laws in 1960 that addressed lung diseases in workers exposed to mineral dust A. If you are referring to the ordinance on the prevention of the hazards due to the specified chemical substances yes we were aware of that Q. true And one of those substances was asbestos THE INTERPRETER This is the interpreter HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 speaking I'm sorry I misspoke Page 705 What the counsel was originally referring to is not the ordinance I apologize It is Pneumoconiosis Act in 1960. I apologize Therefore the previous statement by the witness should have been if you are referring to the Pneumoconiosis Act in 1960 yes we were aware of it I apologiz~ BY MR BRATT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q. And pneumoconiosis is lung disease correct A. Correct yes Q. And asbestos is a mineral dust that causes pneumoconiosis correct A. Yes they say it is possible for it to cause lung disease Q. Now did -- strike that Sir would you agree that a responsible company test products before it puts them on the market MS VOTAW Objection your Honor Overbroad THE COURT BY MR BRATT Sustained . Q. before it Did Kubota ever test its asbestos cement was put on the market in 1954 in Japan pipe . MS GAMBINO Objection Overbroad MR BRATT I'll clarify THE COURT I was going to overrule because you'd moved from the general to the specific I'm sure MR BRATT Yes BY MR BRATT Q. Let me clarify Did Kubota before it started HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATMION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 selling asbestos cement pipe ever in 1954 Page 706 did it ever test to determine if there were any health hazards associated with the use of that product A. If you are asking prior to 1954 although I don't know the details I don't think it was done Q. asbestos Did the -- did Kubota ever test before it put comment pipe on the market as to whether there was a potential hazard associated with installing or cutting the pipe . A. No we didn't The reason is because we did not anticipate these asbestos cement pipes to be cut at work location anticipate we Because that was didn't test it something we . didn't Q. Did Kubota ever do any tests to determine if asbestos was hazardous to human health ever A. I don't think we have conducted any such tests prior to 1975 Q. So between 1960 and all the way up through when the pipe was sold in the United States through 1975 Kubota never once tested for health hazards associated with asbestos is that true A. All I can say is I don't recall that we have done that type of test Q. Honor Thank you very much sir MR BRATT I will pass the witness your | THE COURT Thank you And we'll turn now to other questions Let me ask we may have discussed this HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There's no secret of the direct for here May the the purpose of exam go beyond the Page 707 scope completing this witness before the defense presentation in a couple weeks MR BRAT/ Certainly have been THE COURT called by the So here this gentleman might defense after the plaintiff had completed their case But by agreement since he's flown here from Japan the examination may be more comprehensive and broader than the limited scope of his direct examination so as to present facts that the defense might think would be helpful And then of course permit the plaintiff to examine on that as well We get him all done and on his thank you way home and with everything being heard And sometimes that's not the way it works So out because a witness is close and we just call him back But in this case appreciates there's an accommodation | I'm sure everybody Counsel if you wish to go forward MS GAMBINO Thank you your Honor REDIRECT EXAMINATION BY MS GAMBINO Mr. Q. Good afternoon Mr. Uchino Mr. Uchino when Bratt was questioning you he asked you if Kubota continued to sell containing products or continued to manufacture containing products after 1975 and you answered that yes they continued to manufacture roofing and siding materials Why did Kubota Corporation continue to manufacture products that HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 708 contained asbestos after they learned of the association between asbestos and cancer A. That roofing and the siding materials which were sold by Kubota after 1975 contained little amounts of asbestos Why did we use asbestos There are many reasons some of them are the excellent characteristics of the asbestos which were appealing to the products including excellent heat resistance is one of them In addition materials we realized that because this roofing are in general hardly ever being cut and siding therefore as long as we manage our working environment and workers conditions in an excellent manner at the factory we thought that we would be able to prevent any of these health hazard situations That is the reason why we continued to sell these products even after we realized there was some correlation between cancer and asbestos in 1975 Again our thinking was because they were not going to be cut at work site hardly ever Only thing we need to make sure to do is to control our workers environment at the factory then we should be able to avoid any problems That was our thinking Q. Mr. Uchino do you know if the same type of asbestos was used in the asbestos cement pipe as was used in the roofing material and siding A. Different types of asbestos was actually used for asbestos cement pipes We used both blue asbestos and white asbestos also known as crocidolite and chrysotile HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 709 however for roofing and siding materials we only used chrysotile Q. Mr. Uchino you were also asked if you were aware of scientific studies that were done in the neighborhood of the Amagasaki plant that determined that there was an increased risk to people who lived within 1,500 a 1,500 meter radius of that plant You responded that with respect to the content of the studies there were several different opinions Can you tell us what those different opinions were A. Thank you I would like to explain to you several different opinions One of the very basic we had was the conditions used for the study There were something which didn't make sense and I would like to explain that to you using the photograph if may Or that the map that was shown to the jury during the morning session please THE COURT Thank you We'll let counsel follow up on that as she chooses and we'll see what happens now ; THE WITNESS Okay Then I'd like to explain to you without a map or a picture As I said the big fact that the conditions of this study is not making sense but contradicting the fact that this study somehow thinks that there is only one factory Couple of factory existed in this area and the reality was there were over 40 factories in the neighborhood The city of Amagasaki where our factory was located was the industry of city HG LITIGATION SERVICES HGLITIGATION.COM TRIAL ~ VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There were nothing but plants the numerous Page 710 amounts of chimneys chimney releasing anything that you - can imagine from the the city And there are some residential but more were plants factories area throughout and so forth Including us there are over 40 locations 40 factories in this this area study and they were all somehow picked us equally using asbestos But and made it sound like as if we were factory the only factory in the city and we were only using asbestos which is not the truth That's why when this study was released we thought this condition is not BY MS GAMBINO reflecting the accurate . situation Q. Thank you Mr. Uchino Do you know if back in 11 prior to 1954 or any time through 1975 whether Kubota Corporation had a separate department for medical -- a medical director when THE INTERPRETER To '75 Counsel excuse me from MS GAMBINO THE WITNESS From prior to 1954 through 1975 No we didn't have a medical director As a matter of fact I don't believe there is vocation or title medical director existed in the Japanese company THE COURT I have a question to clarify that's the only reason I didn't know if the gentleman such meant to say that there is no title at that company or more generally that there is no such recognized HG LITIGATION SERVICES HGLITIGATION.COM TRIAL ~ VOLUME 7 position in Japanese companies in general Page 711 THE WITNESS I appreciate the clarification your Honor I meant was generally amongst the Japanese corporation there is no such title recognized throughout the Japanese corporations There are some companies who has house physician who may administer some health examination to the employees Sometimes these house physicians are having their offices in the factory sometimes it's headquarter's offices but there is no in 10 medical director or directors general amongst any 11 Japanese companies 12 THE COURT Thank you for that clarification 13 BY MS GAMBINO 14 Q. Mr. Uchino during that same period of time 15 from you know before 1954 through 1975 do you know if 16 Kubota had any employee that would have been qualified to 17 conduct testing to determine the hazards of asbestos 18 A. No we didn't have any of those 19 Q. Mr. Uchino when did Kubota Corporation come 20 into business 21 A. 19 -- excuse me 1890 they 22 Q. And do you know what -- what type of 23 business they were when they started 24 A. Yes When we first started we were making 25 cast metal object for weights or measures Then 26 immediately after we started making water pipes Q. And can you tell us what type of products does 28 Kubota Corporation manufacture today HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 THE COURT I would like to confer with Page 712 . counsel at sidebar for just a moment second It will just take a Counsel approach the bench ) THE COURT Just one little tip Should there be any questions in addition to not discussing them with your colleagues or anything just address them to the Court There's no note that I would give to just one lawyer or the other We wouldn't address a question to | one advocate as opposed to another that way I share everything just to let you know Okay we'll continue THE INTERPRETER Your Honor may I interpret the answer to the very last question THE COURT And let's the question read because I conferred with counsel and I don't want the jury to forget the underlying question Record read THE WITNESS agricultural machineries Currently we are producing engines construction machineries We also manufacture iron pipes for water Also we produce PVC pipes for water and also we produce some water treatment equipment for water BY MS GAMBINO Q. Thank you Mr. Uchino Just getting back to the containing roofing and siding materials that we talked about a few minutes ago Can you tell me did Kubota Corporation take HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 Page 713 any precautions to protect the consumer of the finished product MR BRATT time frame Objection your Honor vague as to THE COURT Maybe just refine the question a little because are you referring to siding and roofing as opposed to other products BY MS GAMBINO Maybe make that -- . Q. Yes I'm specifically talking about the siding 10 and roofing products 11 At any time did Kubota Corporation do anything 12 to protect the consumer or the end user of that product . 13 or those products Excuse me 14 A. Yes we did Although I can't be for sure 15 about the year we started right around 1979 we started to 16 warn using our manuals 17 Q. And with respect to the roofing material in 18 particular did Kubota Corporation provide the end user 19 with anything that would help them protect themselves from 20 the asbestos 21 A. Yes we did With regards to the roofing 22 materials the end users are the roofers those are who 23 are going to install roofs for their own -- their 24 customers Although we didn't think it was going to be 25 done many times we anticipated that sometimes roofing 26 materials may need to be cut therefore we provided an 27 exclusive tool to cut roofing materials for the end users 28 Q. Mr. Uchino can you describe that tool for us HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 714 A. To make it very simple this was a cutter which doesn't allow asbestos powder or particles to be scattered around in the air Q. Was this tool a power or a manual tool A. It was a manual tool Q. Mr. Uchino did Kubota Corporation ever export either the siding or the roofing product to the United States A. No never Q. A. market Were those products only sold in Japan Yes it was solely for the domestic Japanese Q. All right I'm going to change gears just a little bit here and ask you a little bit about your background Can you tell me did you attend college A. Yes I did . Q. And where did you go to college A. in Tokyo I went to a university called Keio University Keio is K Gijuku is u Keio Gijuku University BY MS GAMBINO Q. A. Q. A. economics Q. Did you receive a degree from that university Yes I did And what was that degree in I received my Bachelor of Arts degree in And what year did you graduate HG LITIGATION SERVICES HGLITIGATIHGLIOTIGATIONN.COM .HCGLITIOGATIOMN.COM TRIAL - VOLUME 7 A. March 1985 Page 715 Q. Now you told us that you started working for Kubota in 1985. Did you go directly to Kubota after graduating from college A. Yes that's correct Q. What was your first position at Kubota A. The department I started working at was called Education Department | Q. And how long did you work there 10 A. Education Department later changed its name 11 from Education Department to Human Resource Department 12 So combining both times meaning that both -- under both 13 names I worked at -- for six years and did human resource 14 related works 15 Q. 16 Kubota And then what was your next position at 17 A. After that I moved to a department which 18 handled legal type of works although the department name 19 wasn't legal department back then it was called 20 Operations Management Department And my group was also 21 called overseas contract department 22 Q. And I guess that your you handled contracts 23 for overseas transactions is that correct 24 A. Yes that is correct We handled not only 25 overseas contracts but we also handled contracts 26 domestic Japan however if these products were somewhat 27 related to exporting in addition our department handled 28 litigation works HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 i Page 716 Q. How long were you in the Operations Management Department A. For seven years Q. And then what was your next position A. Actually they -- continued I continued to work at this department but the department name changed from Operations Management Department to Legal Department So udder our new department name I continued to do the same work 10 THE COURT Was that within the seven 11 period or an additional period of time 12 THE WITNESS It was in addition to my first 13 seven years The department name was changed to Legal 14 Department So after I finished my first seven years at 15 Operation Management Department I worked at Legal 16 Department for 16 years 17 THE COURT By the way we'll go until about 18 ten minutes before the hour and then take our afternoon 19 recess for 15 minutes just so you know 20 BY MS GAMBINO 21 Q. Now Mr. Uchino I've lost track of time You 22 said you were in the Legal Department for 16 years Maybe 23 you could just tell us when -- what year did you leave the 24 Legal Department 25 A. I left Legal Department April of this year 26 THE COURT I was assuming that because that 27 added up to about 29 years 28 BY MS GAMBINO HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 717 Q. And Mr. Uchino your current position you told us was manager of the General Affairs Department correct A. Yes that's correct Q. And when was your first day as manager of the General Affairs Department A. April 1st 2014 Q. So until recently you were still in the legal department correct A. 10 Q. 11 2014 That's true And what was your title as of March 30th 12 A. General Manager of Legal Department 13 Q. Can you tell me what your job duties were as 14 general manager for the Legal Department 15 A. My department was responsible for important 16 contractual agreements handling works as well as working 17 on litigations and claims 18 Q. Now Mr. Uchino you said you were manager of . 19 the Legal Department Are you a lawyer 20 A. No. If you ask me if I have a license to 21 practice law no I do not 22 Q. Well I don't want to ask you if you've 23 practiced law without a license 24 THE COURT You may assuming a fact not in 25 evidence the job requires you to practice law 26 BY MS GAMBINO 27 Q. Seriously Mr. Uchino can you tell us how 28 were you able to be head of the Legal Department without HG LITIGATION SERVICES HGLITIGATION.CHGLIO TIGATIM ON.COM TRIAL - VOLUME 7 being a lawyer Page 718 A. Well I needed to explain to you a little -- the differences between the situation in United States and Japan In Japan is very difficult to pass the Bar exams There are a very small number of lawyers existing in Japan Bar exam is probably one of the most difficult exams to pass so it is not surprising that most of the legal departments located in any corporations in Japan and if their head's a lawyer that's very rare The 10 majority of the time they are not lawyers at all 11 Reflecting this situation the Japanese Bar Association 12 started to relax the passing rate just a little bit but 13 still the number of lawyers in Japan is far less than the 14 number of lawyers in the United States 15 In addition we have a different system In 16 the U.S. you may have to be an attorney at law to practice 17 law but in Japan we have a different system The first 18 one is same as United States but the second one called 19 Shiho Shoshi these are the people equally required to 20 pass the exams and have a license to practice law on the 21 Shiho Shoshi capacity I was able to pass the Shiho 22 Shoshi examination so I have license to practice law but 23 in a different capacity compared to attorneys at law 24 That's how I became head of the Legal Department for 25 Kubota Corporation 26 THE REPORTER Can you spell that 27 THE INTERPRETER Shiho is spelled h 28 Shoshi is spelled h HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 BY MS GAMBINO Page 719 Q. Mr. Uchino have done any research into the history of Kubota's manufacture of asbestos cement pressure pipe A. Yes I have Q. Okay And can you tell me what you have done A. I think it was either 1995 or 1996 an asbestos litigation was brought against us so I decided to interview with people who were working at 10 asbestos -- manufacturing of asbestos cement pipe 11 manufacturing plant back long ago Also I decided to 12 interview with people who were involved with asbestos 13 cement pipe exporting work to the United States back 14 then back long ago In addition just so that I was able 15 to find any documents still remaining at Kubota relating 16 to asbestos I thoroughly checked warehouses located at 17 both our headquarter's office and factory 18 MR BRATT Your Honor may I have a sidebar 19 please 20 THE COURT We'll just take a recess now it's 21 right about time We'll take a recess until five after 22 the hour thereabouts Please remember not to discuss the 23 matter or form or express any opinion until the matter is 24 finally submitted you Thank you very much 25 A recess was taken End section C. 26 27 28 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 APRIL 16 2014 Page 720 : 3:10 P.M. THE COURT ---000--- We are all together Counsel is making a note and we'll continue with Ms. Gambino's inquiry Thank you very much We will continue MS GAMBINO Yes thank you Your Honor THE COURT You're welcome MS GAMBINO Q Mr. Uchino there is one area that I meant to cover just a little preliminary matter 10 We all see that you have an interpreter here today Do 11 you speak English 12 A Yes I had a total of years 13 English education starting from middle school and then 14 high school and then college So if you ask me if I 15 can have everyday conversation or can travel throughout 16 the U.S. without much difficulty yes I can speak 17 English 18 Q 19 today So why do you need an interpreter here . 20 A My English skill level is limited to 21 maybe I can travel without much difficulty for 22 vacation but I am here today to understand the 23 questions very clearly and express myself very clearly . 24 I don't have English understanding to do that so I 25 asked an interpreter to assist me today 26 Q Thank you sir 27 Before we went on our break you were 28 testifying about some former Kubota employees that you HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 721 had spoken to and some records that you had located or reviewed and located With regard to those former employees can you tell me their names A There are two people whom I had a chance to speak with both males The first person is Junichi n Koyke e Second person is Yoshiya h Sayto y Q And starting with Mr. Koyke can you tell me what was his position with Kubota Corporation 10 A He's last position was General Manager of 11 Business of Housing Construction Material Technology 12 Department 13 Q And did he work in the asbestos cement 14 pipe plant 15 A Yes we started to manufacture asbestos 16 cement pipe in 1954. That is the year when Mr. Koyke 17 joined Kubota Corporation Immediately after he was 18 hired he was sent to Kanzaki Plant where asbestos 19 cement pipes were manufactured He continued to work at 20 Kanzaki Plant until the plant was closed in 1975 21 Throughout those years he continued to be involved with 22 asbestos cement pipe manufacturing from the viewpoint of 23 engineering and manufacturing engineering I believe 24 his last title at the Zanzaki Plant was Department 25 Manager 26 Q And is Mr. Koyke still alive 27 A No I think it was about the year 2000 28 he has passed away HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Q And Mr. Sayto did he work at the asbestos cement pipe manufacturing plant -- pipe Page 722 manufacturing plant A Actually Mr. Sayto was dealing with export business of asbestos cement pipes for a few years Q And is Mr. Sayto still alive A We don't know whether or not he's still alive and well or he has passed away It's been a long 10 time since we lost contact with him 11 Q And just to clarify you spoke to him 12 sometime in the 1995 or 1996 period is that . correct 13 A Yes that's correct 14 Q Do you know if anyone else any employee 15 or former employee with the company who would have any 16 information regarding the asbestos cement pipe 17 manufacturing plant 18 A No I don't And I really don't believe 19 there are anybody else besides these two gentlemen I 20 have already named When I needed to talk to someone 21 who knew of asbestos cement pipe manufacturing or its 22 plant in 1995 1996 time frame is what I do is go to 23 human resource department and give me some names that 24 could possibly help me in that manner Only two names 25 were given to me and these were the only names So to 26 the best of our knowledge those were the only two 27 There were nobody else whom we could talk to 28 Q Do you know what -- strike that HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 723 Do you know if Kubota Corporation had a document retention policy back in 1975 A Yes I think that there was a document retention policy available in 1975 time frame I searched it very hard but I couldn't find it Q So that would mean that you don't know what the policy was back in 1975 is that correct A That's correct Q And does Kubota have a current document 10 retention policy 11 A Yes it does 12 Q Can you tell me what that is 13 A What would you like me to tell you 14 Q How long certain documents are required 15 to be kept without being destroyed 16 A Depending upon the type of documents we 17 have several different document retention policies The 18 categories are eternal ten years five years and three 19 years and one years Which means if you are dealing 20 with the record of somebody being newly hired has 21 different retention time compared to company newsletter 22 for example our company document retention policy 23 states that we must keep our eternal newsletters 24 eternally 25 Q Can you tell me what the policy -- strike 26 that 27 How long has the current policy been in 28 effect if you know HG LITIGATION SERVICES HGLITIGATION.CHGLIOTIGATIMON.COM TRIAL - VOLUME 7 Page 724 A I don't know exactly when it became effective but I think it was three years ago Q Does Kubota have a specific policy for retaining documents that may be related to litigation A Yes In current document retention policy has rules for litigation documents Q And do you know what the rule is A Yes The policy is after the litigation is closed you must keep the documents for three years 10 Q Mr. Uchino we talked about Kubota 11 manufacturing asbestos cement pipe more specifically 12 do you know if they manufactured asbestos cement 13 pressure pipe 14 A Yes we used to make asbestos cement 15 pressure pipes 16 Q Do you know if Kubota ever manufactured 17 asbestos cement sewer pipe 18 A I don't think so At least we never 19 exported them to the United States 20 Q Do you know if Kubota Corporation ever 21 manufactured asbestos cement pressure pipe 22 A My recollectioins vague but I don't 23 think so I don't think we have ever made known 24 pressure asbestos cement pipes 25 Q Mr. Uchino do you know if Kubota's 26 asbestos cement pressure pipe was manufactured in 27 accordance with the industry and governmental standards 28 of the day HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 MR BRATT Objection Your Honor Page 725 Calls for expert testimony Lacks foundation THE COURT As a preliminary you may ask questions on that Subject -- that is the basis for expressing an answer question So we'll pause and wait for the next MS GAMBINO I'm sorry Your Honor is it sustained 10 THE COURT I sustained the objection in order to 11 allow you to lay a foundation to elicit that testimony 12 He could answer yes But before he told us about 13 those policies he would have to -- 14 MS GAMBINO Q Mr. Uchino do you know what 15 the industry and governmental standards for the 16 manufacture of asbestos cement pipe were back in the 17 period of 1954 through 1975 18 MR BRATT And Your Honor it is vague as to 19 industry standards 20 THE COURT I'll allow that question but before 21 talking about the content of those standards let's find 22 out if the answer is yes or no Then you may ask 23 other questions 24 MS GAMBINO Thank you 25 THE INTERPRETER Officer Interpreter has a 26 question Counsel that first question whose objection 27 was sustained you asked asbestos cement pressure pipe 28 After Your Honor is supporting the objection he simply HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIM ON.COM TRIAL - VOLUME 7 said asbestos cement pipe Page 726 Would you like to change it or would you like to say asbestos cement pressure pipe MS GAMBINO I will stick with my question Thank you Madam Interpreter THE COURT Which question it MS GAMBINO Okay Why don't I just rephrase I'm sorry If I can remember it MS GAMBINO Q Mr. Uchino are you familiar with the industry and governmental standards for 10 manufacturing asbestos cement pressure pipe back in the 11 period of time between 1954 and 1975 12 A I know some of the standards and their 13 names If you ask me if I can name all of them I don't 14 think I can 15 Q And how did you become familiar with the 16 standards that you do know 17 A I became familiar with these standards by 18 reviewing the product catalogs available back at that 19 time for those products Also at that time we had to 20 attach called certificate of passing basically this 21 was a piece of paper telling that this particular 22 product satisfied specifications required for the 23 product by reviewing this certificate I also learned 24 these standards 25 MS GAMBINO I apologize I did not hear the 26 first part of that answer MayI have it read back 27 THE COURT We'll have it read back 28 Whereupon the answer was read back in HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM TRIAL - VOLUME 7 open court by the Certified Court Reporter Page , 727 MS GAMBINO -- Did you do this review or research as part of your job duties while you were in the legal department of Kubota A Yes That's correct Q Mr. Uchino I would like you to take a look at what's been marked as Exhibit 7010 THE COURT Would you like in due course our Court Clerk Chandra to mark that for identification 10 MS GAMBINO Yes 11 THE COURT With that same number 12 MS GAMBINO Yes Thank you 13 THE COURT We'll make note of that 14 Defendant Kubota's Exhibit 7010 marked 15 for identification 16 MS GAMBINO Your Honor I believe there are 17 translations in the back of each 18 THE COURT Yes Thank you I see words in 19 English and then I see some symbols that I assume you 20 will establish are in Japanese| 21 MS GAMBINO Yes Your Honor Thank you Your 22 Honor unfortunately I have to refer to the English 23 translations if that is all right 24 THE COURT That is all right I think we all do Most of us 26 MS GAMBINO Just to be clear Uchino 27 MS GAMBINO -- Mr. have you found 28 Exhibit 7010 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 ; A Yes It is in front of me Page 728 Q Okay Thank you what that document is And can you tell me A This is Kubota's monthly newsletter and the date is November 1961 Q Mr. Uchino could you check the date again and tell me if you are sure it is November 1961 A November I apologize It is December not 10 Q Thank you 11 Have you seen this document before 12 A Yes I have 13 Q And where have you seen this document 14 A At my office 15 Q Did you find this document in the course 16 of your researching the asbestos cement pipe 17 A Yes I think I found this document 18 Q 19 document And do you know where you found the 20 A Yes I do There was department called 21 Public Relations Department which was the department 22 handling this Kubota monthly newsletters or monthly 23 reports That is where I found this document among the 24 piles they had 25 Q And were there any other documents with 26 this document Any surrounding documents 27 A No. The file contained nothing but a 28 series of Kubota monthly newsletters HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM HGLITIGATION.COM TRIAL - VOLUME 7 Page 729 Q You found this document -- this newsletter amongst a file of Kubota monthly newsletters is that correct A Yes that's correct Q Do you know if this document was prepared within the regular course of Kubota's business A Yes I do This was prepared every month as a normal course of business back then Q And how do you know that 10 A I can say that because I was actually a 11 part of this If you recall I once worked at Education 12 Department at Kubota Corporation One specific time my 13 department Education Department was responsible for 14 preparing this monthly report That is how I know 15 Q So preparing -- was preparing this 16 monthly report one of your jobs when you were in the 17 Education Department 18 A I wouldn't say my work My colleague was 19 assigned to do this 20 Q Do you know if this newsletter was 21 drafted at or near the time of the events that are 22 reported in the newsletter 23 MR BRATT Objection Your Honor Calls for 24 speculation lacks foundation 25 THE COURT Overruled 26 THE WITNESS Yes Maybe there was a slight time 27 lag maybe a month or sometimes two months but 28 nonetheless the purpose of this newsletter was to HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 730 | provide information regarding events happening at the office business and plants THE COURT Was it issued did you THE WITNESS Yes It is monthly say monthly THE COURT That I think answers the question I had about foundation It was regularly performed sufficient basis for the foundation Soa MS GAMBINO Your Honor may I offer it into evidence THE for counsel COURT at this I do have point I question . It's mainly see a document that appears to have Japanese symbols but in the page just proceeding that there is a document And I can just show it to you just see if it is part of the exhibit Would you like to see it Are you familiar with it MS GAMBINO I am familiar with that document It is a an uncertified translation THE COURT You are not arguing that MS GAMBINO No. I think we now have a certified translation We just got this THE COURT There was one page with three paragraphs on it What you've done is you will not publish that because you have the Japanese document with the certified interpretation MS GAMBINO That's correct Your Honor THE COURT Good With that clarification you may publish that MS GAMBINO Thank you HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 731 THE COURT I take it these are issues -- H haven't done the fine print but it is not issues in dispute correct MS GAMBINO Correct THE COURT That is fine MS GAMBINO There was a discussion of putting it on the overhead Since it is in Japanese I will not do that THE COURT Since there is an English translation attached isn't that right MS GAMBINO Yes THE COURT If you want to refer to any part of . that it is relevant We've explained the first page She is not offering but all of the attachments of the certification of interpreter she is asking to be referred to If there is some question about that you can take that up during the recess When you are ready counsel MS GAMBINO MS GAMBINO Number 7010 Thank you Your Honor Q Mr. Uchino do you have Exhibit A Yes I do Q And there's a certified translation that goes along with that that the interpreter has And if I can direct your attention to the seventh page there is a paragraph that is numbered number 5 and it is page 3 in the Japanese version THE COURT I think if you would like to approach HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 and put your finger on the portion of it that is Page 732 satisfactory and then show Plaintiff's counsel as well MR BRATT I'm okay with this Your Honor But I think the challenge is having the witness know -- the Japanese page is different than the translated page THE COURT Yes If you want to help out you can direct him to the portion of it MS GAMBINO All right THE COURT Is it some page after the declaration 10 and certification signed by the translater 11 MS GAMBINO Yes it is 12 THE COURT And if you would like to come up and 13 guide him to the appropriate portion that is okay 14 MS GAMBINO Thank you Your Honor 15 MR BRATT And Your Honor to save time I'm 16 happy to stipulate all of these come in 17 THE COURT That is fine We appreciate that 18 But you may elicit questions Ask questions and 19 answers 20 MS GAMBINO Thank you Indicating 21 THE COURT Are you directing his attention now 22 to a Japanese language portion so the interpreter is being utilized 24 MS GAMBINO Yes Your Honor 25 THE COURT And does that correspond to exact 26 English translation 27 MS GAMBINO Yes To be specific the 28 interpreter is actually directing him to the portion HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIM ON.COM TRIAL - VOLUME 7 Page 733 [| ; because I don't know exactly which portion which -- THE COURT I appreciate that Once you are ready why don't you go forward MS GAMBINO Q Mr. Uchino can you please read paragraph 5 on that page A And you are referring to the paragraph starting with number ? 10 That's correct A Talking about UL standards 10 Q Yes 11 A Reading By passing on the UL 12 standard Today it is just a matter of time before 13 waves of free trade comes to hit shores of industries of 14 our country Asbestos pipes are not immune to them 15 either 16 THE COURT Excuse me can you hear 17 Would you begin the reading again and 18 just project your voice a little more Just start over 19 by passing of the UL standard Read that please 20 THE INTERPRETER Reading Number 5 passing of 24 the UL standard Today it is just a matter of time 22 before waves of free trade come to hit shores of 23 industries of our country Asbestos pipes are not 24 immune to them either 25 A prerequisite for our advancing into the 26 international markets and an urgent task to show what 27 quantity Kubota's asbestos pipes comprise was to pass 28 the UL standard of the United States as international HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 measure Page 734 Very stringent tests were conducted in the presence of Mr. Koskinan from UL organization for about a month in May In this manner our asbestos pipes passed the standard with respect to various categories including ruptures connections joints dimensions and bending and they were granted a certification as product meeting the international standard Asbestos pipes are paving a way for Kubota to go from Kubota of Japan to Kubota of the 10 world 11 THE INTERPRETER This is Officer Interpreter 12 speaking Just so you know I have this very clearly copy Very easy to read He's original Japanese is 14 very difficult to read because it is so old prints our 15 smeared collapsed some of the pages are like this 16 indicating He was struggling to read that part Not 17 because he's a terrible reader It is just a bad copy 18 MS GAMBINO Your Honor may we have a sidebar 19 THE COURT Yes 20 Sidebar discussion had not reported 21 THE COURT I appreciate that courtesies 22 Ms. Gambino was -- because it was painfully 23 slowed When you have an additional certification we 24 appreciate the courtesies Without any objection the 25 question will be directed to the official interpreter to 26 simply look at the official translation and read it and 27 it will save us time and all be in evidence You may go 28 forward Because the foundation for doing that has been HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIM ON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 established for the actual witness talked about Page 735 the preparation of these newsletters You can see it is a pretty careful process to try to get evidence that is proper before you But this is the speed along the road a little You may go forward MR JONES We wouldn't object to counsel just publish them and read them herself THE COURT Whichever she wants to do MR BRATT Thank you MS GAMBINO from number 7011 Your Honor I would like to read THE COURT newsletter All right Is that another MS GAMBINO Yes It is another newsletter H understand the Plaintiffs have stipulated to the admissibility Defendant Kubota's Exhibit No. 7011 was admitted into evidence THE COURT If you'll identify the month and year of the newsletter and then read the relevant portion the jury will see that when it is received into evidence This is number 7011 MS GAMBINO This is another Kubota monthly report It is dated October 1964. And on what's numbered page 62 about the middle of the page it begins water department general manager THE COURT Just call it out loud so everybody can hear You have to belt it right out HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIOMN.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MS GAMBINO Reading | Page 736 Water Department General Manager from a U.S. East Bay M Comes to Visit As part of our efforts to export Japanese technology overseas our Kanzaki Plant is emphasizing export of its asbestos cement pipes a series of their tests were conducted in the presence our visitors at the plant of the inspection Vice President Geis that's e from division of the UL in the U.S. came to visit the plant on September 2nd and on September 3rd Division Manager Adelman from East Bay Municipal Utility District in the U.S. came to visit Both came to visit the plant for testing of asbestos cement pipes in accordance with the U.S. AWWA standard and they observed production facilities of the plant and discussed stringent product testing and quality control methods et cetera with interest each of them We received a rating of excellence thus proving excellence of the Kubota from technology attention -- Now I would like to direct the Court's THE COURT I'm sorry she was reading from page 62 of number 7011. By agreement counsel just read that She'll ask you a question in a moment MS GAMBINO Directing the Court's attention to Exhibit 7012 a Kubota monthly report dated March 1966 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 737 And what is numbered page 60 under the subheading East Bay came Reading Kanzaki plant inspectors to visit the plant We have been from supplying asbestos pipes from the year before last to East Bay Municipal District EBMUD in the State of California the United States On January 19 Mr. R.T. Tylotson Manager of Design Engineering Department of the same utility district EBMUD visited our plant for visual inspection of the products in the 10 production processes 11 Utility District EBMUD is a large 12 provider of clean water to the City of Oakland and its 13 neighboring cities in California 14 During the plant tour he seems to have 15 been very impressed with excellent manufacturing and 16 testing facilities of the Kanzaki plant Also our 17 product inspections during which he was present showed 18 excellent results proving a high level of our quality - 19 control and reliability 20 It is projected that further export of 21 asbestos pipes will enhance our overseas reputation in 22 the future 23 And now I would like to direct the 24 Court's attention to Exhibit 7013. And again it is a 25 Kubota monthly report This one is dated May 1966 what 26 is numbered page 74 Under the heading reading 27 Kanzaki Plant UL Inspector Visits the 28 Plant HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Kanzaki Plant is being inspected Page 738 under the stringent UL standard in order to export asbestos cement pipes to the United States On April 5 a regularly scheduled inspection for a UL standard certified plant was conducted as usual The inspector was Mr. Hanegar from UL He came to our plant two years ago too and it was his third visit to Kanzaki Plant all together Since he is a familiar face to those of us who are involved the 10 entire staff at the plant welcomed him He was very 11 surprised at advancement of various facilities and 12 equipment in two years He scrutinized carefully 13 details regarding manufacturing and testing facilities 14 and equipment quality control status as well as 15 inspection records The results were all good as 16 expressed by his word Yoroshii goooood The 17 inspections continued all the way and finished in an 18 amicable ambiance Those of us who are involved are all 19 the more confident about export of asbestos pipes 20 MS GAMBINO Q Mr. Uchino will you please 21 look at Exhibit Number 7015 22 A Yes you 23 Q Have seen that document before 24 A Yes I have 25 10 When have you seen it 26 A I seen this right around the 1995 27 Remember I was searching documents and this document 28 was one of the documents I found during my search HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 739 Q So did you find this document among Kubota's business records A Yes this was one of the documents kept or left as the litigation documents Q please Can you identify this document for me . A This is a certification issued by a third party called ITCO phonetically spelled It stands for International Inspection Company Limited Each time if 10 we were going to ship our products to the U.S. market we . 11 have ITCO inspect our products to make sure that our 12 products were satisfying U.S. Standards and rules 13 required at that time including ASTEM standards Make 14 sure that the volume was just about to be shipped out 15 were meeting with the required amount appearance 16 quality everything else were matching through the 17 requirements Once these were confirmed ITCO would 18 issue a certification and this is one certifications 19 issued by ITCO to our products 20 MS GAMBINO Your Honor I would like to offer 21 this document into evidence please 22 THE COURT Admitted 23 Defendant's Exhibit No. 7015 admitted 24 into evidence 25 MS GAMBINO Thank you 26 THE COURT You may publish it if you wish 27 Published in this context just means 28 display it Put it up on the overhead HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 MS GAMBINO May I just read this one Page 740 THE COURT Well that is fine If you want to read part of it fine document The jury will get the whole MS GAMBINO And this document is entitled ITCO International Inspection Company Limited About halfway down there is the word certificate date THE COURT This is May 26th 1970 is that the 10 MS GAMBINO Yes Thank you 11 Reading We certify the following material 12 has been inspected and in accordance with our opinions 13 based upon the report of our inspectors and our 14 experience and judgment has been accepted under the 15 instructions provided 16 THE COURT And I think it would be helpful to -- 17 because there has been a lot of discussion commodity 18 to which that refers can you do that 19 MS GAMBINO Yes Your Honor I meant to do 20 that Kubota asbestos cement pressure pipes Class 152 21 it is illegible C400 dash 64T specifications complete 22 with Type II couplings and rubber rings 23 Thank you Your Honor And now I would 24 like to turn the Court's attention to Exhibit 7016 25 Mr. Uchino will you please look at | 26 Exhibit 7016 27 A Yes 28 Q Can you identify that document please HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 741 ' A This is a very similar document compared to the one you just introduced This is also a certification The difference between the first one and this one is that this is done by us I assume that before we hired a third party such as ITCO we must have conducted the shipping verification confirmation and other works by ourselves because if I go through this document I see the line confirming the volume the contents and where it is gointgo be shipped and sold 10 for very similar contents compared to the certification 11 issued by ITCO So I think the only difference is who 12 has done it either did it yourself or had somebody 13 else do it for you 14 Q Mr. Uchino have you seen this document before 16 A Yes I have 17 Q And when have you seen it 18 A The same time frame where I found and saw 19 ITCO document which was around 1995 20 Q And is this the type of document that's 21 kept -- that is maintained as a business record at 22 Kubota Corporation 23 A Yes The same as the previous document 24 MS GAMBINO Your Honor I would like to admit 25 this document into evidence 26 THE COURT Admitted 27 Defendant's Exhibit No. 7016 admitted 28 into evidence HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 MS GAMBINO Thank you THE COURT Yes Page 742 May I publish it MS GAMBINO Thank you Title of this document is Kubota Iron and Machine Works Limited 31 1964 Mill Test Certificate dated January following Reading commodities have This been is to certify that duly inspected and the , tested in accordance with the specification AWWA 400-53F and with Kubota Iron and Machinery Works 10 Limited's drawings and specifications 11 Inspection date 15-25 January 1964 12 Purchaser East Bay Utility 13 Destination San Francisco 14 Commodity Pipe water asbestos cement 15 Class 150 150 psi working pressure proffered 16 THE BAILIFF Document ) 17 THE COURT Reviewing All of the exhibits 18 admitted into evidence as I indicated in 19 instruction would be delivered into the jury room 20 for your consideration Also at the appropriate time 21 when lawyers are done with the case if they wish to refer them in closing arguments to be some assistance 23 it might get into the document intensive and of course 24 they will try to focus on the documents they feel are 25 most helpful and persuasive in prospective cases In 26 order to read them all out loud page after page they 27 are admitted as business records at this time and 28 counsel will be free to show them and you will be able rm, HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 to inspect them if you choose to do so Page 743 MS GAMBINO Thank you MS GAMBINO Q Mr. Uchino I forgot to ask you what is Kubota Iron and Machinery Works Limited until A 1970 It is the same as Kubota Corporation Up our company name was Kubota Iron Works -- excuse me Kubota Iron and Machinery Works Limited Q When you were doing your research on the history of the Kubota pipe manufacturing plant did you 10 come across any sales or marketing brochures regarding 11 Kubota pipe 12 A Yes I found some of them 13 Q Did you find more than one 14 A I found only one It was a catalog 15 titled Kubota Voss catalog 16 I would like to address your attention 17 Mr. Uchino what has been marked as Exhibit 7017. Is 18 that the -- is that the sales literature you are 19 referring to 20 A Yes it is 21 Q And where did you find this document 22 A The same location where I found other 23 documents including ITCO certification and others 24 Is this the kind of document that is 25 regularly maintained as a business record by Kubota 26 Corporation 27 A Yes 28 MS GAMBINO Your Honor I would like to offer HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this document into evidence Page 744 THE COURT Admitted Defendant's Exhibit 7017 admitted into evidence MS GAMBINO publish it Thank you Your Honor May I THE COURT Yes you may MS GAMBINO Q And on page Bate stamp 717003 under the heading Approved Kubota asbestos cement pressure pipe is manufactured in Japan to rigid American standards It meets all the requirements of the American Water Works Association American Society for Testing Materials and all pertinent U.S. Federal specifications It is listed with Underwriters Laboratories Inc. Each length of pipe and coupling is inspected at our Long Beach and Oakland facilities and subjected to the hydraulic of pipe in size 3 inch and test up is Each standard subjected to a length flexural test Accepted Kubota asbestos cement pressure pipe is inspected and used by organizations such as the East Bay Municipal Water District City of Modesto Los Angeles Department of Water and Power City of Santa Cruz of Santa Monica Pacific Gas and Electric Company City Lake Los Angeles Salton Sea City and many other locations serves all potable water transmission needs Mr. Uchino if you look on the first page of this document it is titled Kubota Pressure Pipe HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 A Yes Page 745 Q Do you know who prepared this brochure A I don't know for sure but I think this was prepared jointly between Voss and Kubota it THE COURT It has such a symbol on it showing the name both Voss and Kubota doesn't THE WITNESS Yes THE COURT Thank you Thank you You are right sir 10 MS GAMBINO -- Mr. Uchino do you know the 11 length that the Kubota asbestos cement pipe came in 12 A Yes I do We offered three different 13 lengths a standard length which were full length half 14 length and quarter length and under full length And 15 under full length we offered 8 feet 10 feet and 13 16 feet So if you wanted to have let's say half length of 8 feet you get 4 feet If you wanted to have 18 quarter length or 10 feet then you would get to .5 | 19 feet That's how it goes 20 THE COURT Counsel is this an appropriate time 21 We were going to take up some matters before the jury . 22 comes in tomorrow 23 MS GAMBINO Yes Your Honor 24 THE COURT And we'll resume with this witness 25 tomorrow 26 MS GAMBINO Yes thank you 27 THE COURT We will take a recess now and excuse 28 the jury do a little bit of work more And we'll ask HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 that you be available by 9:30 tomorrow morning jury will come at 9:30 to continue with your Page 746 The examination be in recess Thank you Thank you very much We'll Thank you for your careful attention throughout the day Leave your notes there and we'll see you tomorrow morning Please remember the continuing admonition Very grateful for your service Whereupon the jury exits courtroom Whereupon the following proceedings 10 held outside the presence and hearing of the jury 11 THE COURT As the record suggested a note was 12 handed to me and the question was Are we going to get 13 a chance to see that exhibit prior to deliberation 14 Thanks 15 It wasn't signed but I wrote this note 16 I wrote this response for the note I'll give these to 17 the clerk to keep the notes as part of the record I 18 didn't need to confer with counsel I wrote on my note 19 reading 20 April 16 2014 4:05 p.m. the Court 21 upon receipt of this question by Jury Number 12 Marie 22 Ellis explained to the jury and reminded the jury that 23 all exhibits admitted into evidence would be submitted 24 to the jury for it's consideration during jury 25 L.C. Nichols Judge 26 I thought it would be best to read it out 27 loud since my handwriting is not the clearest I'll 28 give that to Chandra HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 And you can be seated At least Page 747 initially we can take up a discussion of the two sets of papers that were delivered very courteously to me One is Defendant Westburne Supply Inc.'s individually and as successor interest to P.E. O'Hair objection to late with disclosed witnesses and supporting declarations . attachments Oh know I'm sorry with the declaration which-- yes it had attachments And also CertainTeed Corporation's motion to exclude witness disclosed after discovery cutoff and attachment of declaration of Andrea J. Kessetlate phonetically spelled in support of CertainTeed Corporation's motion to exclude witnesses disclosed after The gist of each of these is that -- discovery by way of cutoff attachment it referencing the fact that this was a priority set because of the terminal condition of the Plaintiff set over objection of the Defendants The supervising Judge at the time set forth a joint trial setting order which indicated information including witness a date for disclosure of lists and the -- the gist of this is that the third amended list was made known to counsel on Sunday Today is Wednesda anyd that objects to these additional names on the grounds stated for the reasons stated And I'll ask if Plaintiff has anything to say about that So on the face of it it is pretty straightforward MR JONES Yes We'll withdraw a majority of HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 those witnesses Page 748 Really the only witness that we would like to seek is Mr. Jaime Vargas And I've discussed this with counsel In opening statements by every party -- THE COURT That's m Vargas V out of the list six names this is the only one in question MR JONES Yes Your Honor THE COURT Tell us about that 10 MR JONES Mr. Vargas is one of the 11 individuals that went to Mr. O'Bryan Kenneth O'Bryan's 12 home the Plaintiff's father and removed asbestos 13 cement pipe that was in the backyard provided some of 14 that asbestos cement pipe to experts retained by the 15 Defendants and has retained the rest of the asbestos 16 cement pipe is that right 17 MS VOTAW My understanding it was all abated 18 except for the stuff -- my office had an agreement with 19 Mr. Jones Your Honor that we wanted to sample this 20 pipe And we wanted to have it sent down to our 21 industrial hygienist in Long Beach 22 THE COURT This was the pipe that was shown in 23 the opening statements 24 MR JONES Yes The photographs shown in CertainTeed's opening statement I believe this is the 26 gentleman that took the photograph If he is not that 27 gentleman he is one of the people that were there 28 abating the pipe HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pipe THE COURT Page 749 AnD it was said to be Johns Manville , MR JONES the jury That's the representation made to MS VOTAW THE COURT The representation -One at a time MR JONES I'm sorry THE COURT I think Mr. Berfield said it had distinctive coloration that it was a Johns Manville MR BERFIELD Distinct appearance MR JONES I believe this gentleman only became involved in this case after the witness lists were exchanged that is my recollection and we had an agreement that this gentleman would do chain of custody and that's what he's going to testify about MS VOTAW Actually that is not the case What happened was that Mr. Jones and I had that agreement and then Mr. Jones turned the case over to Mr. Bratt And after that we were advised not by Mr. not Bratt do the but by the abatement company chain of custody work So we that sent they would our industrial hygiene team all the way from Long Beach up to Mr. O'Bryan's residence and they are prepared should we choose to offer them to do the chain of custody evaluation There was never any discussion about the abatement company doing that In fact the abatement company told our expert that he wouldn't do it So I had no knowledge that this was in the works or HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 Page 750 that -- I don't know what they are going to offer THE COURT Let me just ask this question MR JONES Yes THE COURT Assume that Mr. O'Bryan comes here and consistent -- I think at this hour I don't want to say something that would be argumentative It may be consistent with what Plaintiff's counsel said in other words that only recently you know that Mr. O'Bryan was alerted in some manner so that the pipe was removed 10 I think it was referred to by Mr. Bratt with testify 11 protective gear and so forth Mr. O'Bryan will 12 right And Mr. O'Bryan didn't he say that pipe was 13 there and the circumstance under which it was there and he 14 it was taken away And isn't that all that -- and 15 saw people with -- wearing certain apparel offer a lay 16 opinion on that That was taken away And that is what 17 we had in opening statement Later when we close off 18 the Plaintiff's case the Defendant wants to talk about 19 that pipe That is their business Isn't that the way 20 it would go In other words why do I have to resolve 21 this dispute Why is it necessary to call some person 22 I think Ms. Votaw said that was some preliminary 23 agreement but later they had to go to some expense to 24 do something on the defense side whatever their 25 understanding was it was not fulfilled She is not 26 here to point fingers I gather just to explain no 27 there was no agreement and it is a late disclosure 28 MR JONES I don't think she is saying there is HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 no agreement people -- There was an agreement that these Page 751 THE COURT She said she worked something out with you and then later you know trial counsel came in on the case and then when they learned that -- she said what she said MR JONES Okay THE COURT She wasn't disparaging anybody MR JONES She was not And I don't think she 10 would 11 THE COURT No. No. 12 MR JONES We get along famously myself and . 13 Ms. Votaw 14 THE COURT In other words I would say it is 15 late disclosure can't call that person We'll get to 16 it in due course if the defense puts anybody on 17 Mr. O'Bryan can talk about what he talks about 18 MR JONES Then we may call him in rebuttal if 19 the subjects are -- come out in this case Perhaps 20 there will be rebuttal witness 21 THE COURT We'll see what you do if you choose , 22 to put up a rebuttal claim 23 MR JONES We'll jump off that bridge when we 24 come to it 25 MR BERFIELD I have an issue Lloyd Ambler 26 THE COURT Let's just go off record 27 Whereupon discussions held off the 28 record) HG LITIGATION SERVICES HGLITIGATION.CHGLITOIGATIMON.COM TRIAL - VOLUME 7 Whereupon and continued to April 17 Page 752 proceedings were concluded 2014 at 9:30 a.m. Whereupon Section D has ended -o0o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iD HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 STATE OF CALIFORNIA ) COUNTY OF MARIN ) SS ) CERTIFICATE OF OFFICIAL REPORTER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 certify I BARRIE L. HART C.S.R. 6954 hereby THAT on Tuesday January 16 2014 at the hour of 9:30 a.m thereof I reported in shorthand writing the proceeding had in the matter of Pamela J. O'Bryan versus A.H. Voss Company et al No. MSC13-01926 THAT I thereafter caused my said shorthand writing to be transcribed into longhand typewriting THAT the foregoing pages 638-671 and 697-719 constitute and are a full true correct and accurate transcription of my said shorthand writing and a correct and verbatim record of the proceedings so had and taken as aforesaid DATED this 17th day of April 2014 BARRIE L. HART CSR 6954 HG LITIGATION SERVICES HGLITIGATION.COM TRIAL - VOLUME 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF REPORTER STATE OF CALIFORNIA ) COUNTY OF SONOMA ss ) I JENNIFER MOSER ROUX a Certified Shorthand Reporter CSR NO 11003 within and for the State of California do hereby certify that the testimony and proceedings in the foregoing April 16 2014 Volume VII pages 672-696 and Volume VII pages 720-752 were taken before me at the time and place therein set forth That the testimony of the witness the questions propounded and all objections and statements made at the time of the examination were recorded stenographically by me and were thereafter transcribed That the foregoing is a true and correct transcript of my shorthand notes so taken I further certify that I am not a relative or employee of any attorney of the parties nor financially interested in the action or the outcome thereof IN WITNESS WHEREOF I have subscribed my name this 16th day of April 2014 Jennifer Moser Roux NO.11033 HG LITIGATION SERVICES HGLITIGATION.COM