Document QJ2wMYv3Qx729p43oMg3e9BwL

FILE NAME: Union Carbide (UC) DATE: 1989 Mar 22 DOC#: UC069 DOCUMENT DESCRIPTION: Letter RE Union Carbide Witness - Dr. Carl Durnehl with Cover Sheet OCT-25-51 RR I 14:45 *< R .1 DATE : / / ) J 2-C j y / fc- LM f O F F IC E S OF LAWRENCE MADEKSHO LAWS.ENCE. MADEKSHO ATTY 832C GULF FVCt STE 218 HOUSTON ',1'X 77017-4598 OFFICE: 713-641-0251 F M : 713-641-5530 P le ase d e liv e r the. fo llo w in g pace(s ) to; ^ Nause T o t a l num.ber o f "pages / $ in clu d in g th is cover le tte r, t: * ' " Tim e s e n t : , r w ^ . ____ _______ T ra n sm itte d from a S h a rp FQ5000 F a c s im ile m achine* I f there are any problem s in re c e iv in g t h is tra n sm issio n , p le a se telephone 713- 641-0251 im m ediately* Than you. Sp e cia l In stru ctio n /N o te ss | ? j L , [ J ^ a x j> a . C .x JL.-AA, ^ K j .A . J ^ C L JL- VTA^J J I aS ^ L s m _ HT-29-91 TUE 15 S2 R .0 1 B i a s i n g a u e ,B u r c h G a r r a r d &. B r y a n t ,P.C. M w*HE?;Rr .:ARV! BLASIVUAWC iHR-sRAs\ ,Ck'VCaSrLMEmRCH. :a e v iR f T iw * or' a t MTALNLC LRTEA'ME'0Ih hHHitAAUS.T?K:itARC JAMSi 9 MATTHfl . 1 JOHN E K /T -iR s .fiA tNi * ' fFIDERtC A. SAUIW. MCriAWD L 6EJTTA1N fCHN A. CARNE?. 'CA. S incl fV SL5A.N CH ET `,,IS ;\VA!NNARCCCOSUTAG?H?On ,0a "d *V> A~,-CH,SEr? A ' l a * POT .'FFCE 9 0 ? <j; ATHENS. OtORCtA 1 March 22, 1989 `A' <:O LUC A' EM i \ ATNL.iPAE-1OuNt' TtUciJpliR .AM, ,1^>-1 Mr. Allen Gerson Kelley, Drye 5 Warrn 39 Old Ridgebury Road Danbury, CT 068170001 Re; Union Carbide Witness - Dr. Carl Durnehl Deposition f 3/10,89 and 3/16/83 Derr Allen; On Hard. 10, 1939, \/o began the deposition of Dr. Carl Durnehl, Initial cross-examination was conducted by Bob Brownson, attorney for third party defendant ConWed. Cross-examination was also conducted by Mike Polk, counsel for plaintiffs (he is associated with the Motley firm). It is my impression that third party defe;.-`.nt ConWed is making a "full court press"on Union Carbide in an effort to avoid liability in this case. They are going after Union Carbide with a vengeance, in my opinion, and are conducting significantly greater discovery than plaintiffs would otherwise attempt. As I have previously discussed with you, I think this will work to the detriment of Union Carbide in this litigation for years to come. It :.s very important that in future depositions of individual Union Carbide witnesses that they be as thoroughly prepared for the deposition as possible and that good efforts be made to control the scope and the tone o: the deposition. Additional thought should be given to the overall approach Union Carbide is making in their defense o : these asbestos personal injury cases. As we have already discussed, a consistent approach and a consistent line of defense is helpful for preparing corpcrate witnesses for these depositions. si"' '! O C T -- 2 5 -- 3 1 "t FRI 1-4 : 4 & iM;: Mr. Al'.en Genon Mil-*i March I I . 1989 Page 2 R . 1 w i n suaaante below briefly the joints of interest fro 1: Dr Curnehl's ctoss-ex;oemattcn on March 30. P Dr. Durnehi is a 75 year old retired associate medical director of Union Carb.de; he retired on August 30. 1979. Hi j| 1 sc. ar e*,e%r wiatvhw Union'.--yC.-ya,*r,,,"b.,-.d-e -b^emgan in 1947 . its medical director nf W; ^ ruluu olltTTIrbid6fi, .wv*.a$ .f.n. i/ Chemical F U fttT He moved up the ladder with UnioTCarbide to assistant icTCTTlMfirector, director of toxicology, then associate corporate medical director. Hi.s first, involvement with Union Carbide Corporation's asbestos group was Ln ita the early 1960's, before Union Carbide began their California iyff;i? mining operations. He has visited the Ring City, California operation on two M-1M* - occasions, once in the mid 60's and once in the early 1970's. One concern of his at the plant was the possible dust haaard of pile of ore and the proper maintenance c ventilation equipment. He has known asbestos van potentially hazardous since he began his. *''w7FF~ 1 > tTme ^F^r?^rn11ial vis{\'T"to Ring City, ils concerns were possibly asbestosis, and not lung cancer; at this time he had not heard of mesothelioma. Chest x-rays have been taken annually at Ring City since the facility opened. . Union Carbide had a small nodical library in Hew York with about 300 books. w m i o n a l i y t h e O u d subscriptions to a number of medical and scientific journals.(s)The company also had its own toxicology researchJacuities at the HeITonTn^TtuteTn FTETsburgST Union Cntblde had a chemlci.l hygiene fellowship there for 'years,"on a stat:; wittrilouT "PlipeopTeT"*Research of! toxicology was conduirted^Thore'T rcm 1'fTiMS'lS Union Carbide las had an annual chest x*ray program for all its employees since the 1940's. The King City asbestos operation began in the early 1560's, Brovnson reviewed an old material safety data sheet and an old Calidria asbestos product bulletin. He did not review one of the K.ii.D.S's from the 1980's, Witness was siown an article by Langer, Rohl and Selikof: entitled "Variation* of Properties of Chrysolite Asbestos Subjected to Killini:"; Journal of Toxicology and Environmental Health, 1978. He knew Dr, SelHoff, but did not know the ! * article. The article stated it was a study of Calidria R.G. 144 Asbestos; he did no: know what that wa:.. He did not know whether this was Chrysotile or not, He vas not sure whether Cilidria was a Chrysotile fiber. l ie , 1 O ^ T - 2 5 - 9 1 F R I 1 4 :4 T i i Ki ; M r. Allen Cerson j; March 2i , 1989 ! i: Page 1 i :% R .04 I 1 Witness vis shewn the 1966 Mellon Institute Study of *3I Intraperuonetl Injection of rats, guinea pigs and rabbits. This : was the only Mellon In:titute Study he could recall regarding : asbestos. The study v u done because the medical literature in : : his mind showed only that lent fibers caused asbestosis; yet, he ! learned that new forms of silicosis were developing fro ultra i 3 fine particlms of silica. As a result, he: became concerned with i ; the possibility that tie short fibeted nature of Calidria could r cause a similar resporue.. Ho conclusions were really reached. '! Witness was shown an early copy of the Asbestos Toxicology Report. He believed both he and. tir. lane wrote parts of the : report. ; Pelletizing was used as a means to reduce dust In the Calidria Asbestos which was nrketed. Even when pelletized, dust was senerated by the handling of that product. ! While he was not familiar with the ConWed Company, or its products, he was familiar with recommendations made to companies : using Union Carbide products,, including; Control of dust, closed I flow systems, wetting of asbestos processes, physical examinations * . and chest x-rays* pelletizing, adequate exhaust ventilation, ? i environmental monitoring, and maintenance of the T.t.V. He did i ; not know whether Union Carbide ever did dust sampling at the \ ConWed Plant. I j ; : '; | j j : ! | i | ! i * i ; ; i ' ' t 1 ' , 1n 5 .] f } 3 i . M T; . i ;i A lengthy discussion of Sayers report was done. Dr. Durmshl did not know Sayers personally,, and initially did not recall the Report, A fairly Elective review of the negative parts of the Sayers Report was then conducted. An attempt was aide to cross-examine the doctor regarding the 1962 and 1966 insulation dust studies at the Union Carbide West Virginia facility; witness did not really recall those studies, but did remember they were done to determine what dust levels were present in insulation vortt. Four documents were shown to hin; he remembered receiving several of them, but could not elaborate on any of them. The next letter reviewed was a June 7, 1967 letter from Dr. Durnehl to Dr. Tom Hail. In this letter it states he reviewed the Sayers Report, which concludes among other things that the S appef, threshold limit value would not protect against mesothelioma. When ashed if this information was communicated to the customers, he slid that he did not believe so because it was only a personal opinion of his. (This topic is addressed on direct examination). The next letter reviewed was exhibit 64, OCT-25-91 FRI 1 4 : -4S P .05 Mr, Allen Gereon March 22. 1969 Page 4 letter fro* T. J. Ha'.l to Frank. Dexter, 6/13/6? with asbestos toxicology report at itched. Durnehl did not recall the letter, but recalled the incidents reflected :.n it. Dr. Durnehl stated that while he followed asbestos toxicology closely, as be did with other marketable chenicals, he did not follow it very closely. * Dr. Durnehl vts shown and recognized a aeo of January 2 % , 1965, and a letter fro* Dr. T. J. Hall to Frank. Dexter of August 1, 1967 , tfhen shewn a Utter Of Hove be r 30, 1967 fro* Dr. Hall to Frank. Dexter, he stated that the letter probably does not refer to the Sayers Report, He says that injected Chrysotile causes cancer in tits*, tltUugh in practice it is less apt to cause the disease due to the liber geoaetry and shape. At this t U e he vts concerned that Galleria, due to its short fiber sue, had a greater possibility of getting into the lungs and causing disease than other Chrysoti.e fibers. Union Carbide has always been concerned about asbestos dust levels in their plaits since 19*7. They began air stapling in the 1960's, and they began a progtaa for chest x-rays of employees in tne 1940*$. Dr. Durnehl was unaware oi; Union Carbide providing dust stapling services to their customers. He thought they probably did not because they did not want to Intrude on their cu$toaer*s businesses. Cross extiinjiion resulted with questions by plaintiff's counsel Mile Poll&yDr, Durnehl stated that Union Carbide as a Corporation was well aware of asbestos "hazards' generally in 1<.M?, T H a t l n o wledte was" based in part on medic aT"H u raTure~revie w . and ex tend^3 Ttack'T3Hnie193d*1s."IHToh ClrFide did not do in depth ' medic aI.studie's on the subject. In 1947, UCC's medical knowledge regarding asbestos was solely based on the sedical literature. They later obtained information independently fro* studies done at the Mellon Institute in 1966. Union Carbide was a founding aember of the I.K.F., and Dr. Durnehl attended some IHF meetings. In 19*7 Durnehl knew asbestos could cause asbestosis and this was a progressive possTSly TaTiT disease, "in 1947 he ~~ believed asbestos was dost relil ed "regardl ng'1nhal ation. The relationship or aisociation between asbestos and lung cancer became known to h:a in the early 1960's. Before the early 1960`s, he had no hint of an association between asbestos and lung cancer. Dr. Durnehl believed that in 1967 there was a growing probability of a relationship between asbestos and mesothelioma. Today he believes incontrover tlbly that asbestos can cause O C T - 2 5 - 9 1 FF! I 1 4 I 4 S R . 0 6. H r , Allen Cerscn March 22, 1983 Page 3 tctsotheUo*, but not ill mesotheliomas re caused by asbestos. This became incontrovertible in tme early 1970*s, bised on reltable epidemiological studies shovnig^an association between asbestos and mesothelioma, Prior to 1967 he believed no real epidemiologic*! studies had been accomplished regarding mesothelioma. In 1947 he understood Chrysolite could cause asbestosis. He has done no personal studies on relative toxicity. Until, 1979 he vas not aware of any information, that Union Carbide had accomplished a study regarding relative toxicity of Chrysotile fiber versus other fibers. He is aware of no workers* comp claims filed by Union Carbide personnel for asbestos disease prior to 1970. He is aware that after 1970 a cot.ple of alleged asbestosis cases arose out of the Charleston, West Virginia Institute Plant during the years 1970-1979. Bakelite was briefly discussed over objection. It is a resin used foe molding fixtures, etc. He had no personal knowledge if Bakelit contained asbestoss BakmliU was some times sold in a. granular farm* In his wind, the single purpose for the asbestos toxicology reports was to provide it to the marketing people who requester it, He didn't recall whether mesothelioma was ever mentioned in those reports. By 1367 he had an opinion that mesothelioma may occur with asbestos exposure below the threshold limit value. He also felt the Sayerj Report was reasonably accurate, Durnehl was on the labeling Committee for Union Carbide 199 5-1978. This coumittee kept minutes. He doesn't recall wrier, labeling of asbesto; products was discussed. He recalls he cade recommendations for cautions/warring labels. Inclusion of ccr.cet language on the lab els was discussed retarding asbestos containers, The word cancer was rejected. He believes warning labels were placed on the asbestos containers of Calidria froc the first day it was sold by Union Carbide. He recalls the average length of Calidria asbestos fibers vas less than 5 micronsiw/He recognized in the 19<0's. a possibility of asbestos health problems to insulators working in the~fITId, Hr"beT:eves ir,.place insuTati'on doe5 norpS'm THraTth hazard U Jlt is not. disturbed. He does not have an opinion that O . r y s o u U asbestoo cannot cause mesothelioma, When asked whether Chrysotile asbestoi could cause mesothelioma, he responded yes with sufficient ex?osure. He also believed that recent OCT-29-91 TUE 15:53 R .02 Mr. Allen Gerson March 22, 1989 Page 7 in size, and the defosit being free of impurities found in other asbestos deposits. The short: "ibered nature of the Calidria presented several consideration.;, including an enhanced ability to be discharged from the body or dissolved by the body, in what was believed to be a lover potential carcinogenicity. In 1947 Dr. Di.roehl knew that asbestos in general could cause asbestosis. He did not know then whether such a short fibered asbestos filer as Calidria could. In the 1960* s . he first learned of an association between asbestos and lung cancer. Part of the early focus vas on fiber length, and the unique short nature of our fiber rendered it different in his opinion. In the 1960's, he believed there was no demonstrated causal relationship or association between our type of Calidria Chrysotite asbestos and lung cancer. That's why no warning label addressing this appeared on out Calidria product. He believed that for lung cancer to develop, there must first be significant enough exposure to long fibered asbestos as is necessary to cause asbestosis, He believed that it wat asbestosis and not asbestos exposure alone that predisposed to cancer, In 1967, he knew there was growing evidence of an association between asbestos and mesothelioma. This was not with Chrysotile asbestos however. It was in any event not with the short fibered Chrysotile asbestos as composes Calidria, The same was true with respect to the epidemiological studies regarding mesothelioma in the early 1970's. There was no causal relationship established between pure short fibered Chrysotile asbestos and mesothelioma at the time of the early 70's. At that time there was the possibility cf an association. He did believe that for other types of asbestos, an association had been achieved, He did not recall any epidemiological studies showing a causal relationship between short fiber Chrysotile and mesothelioma. Further, mesothelioma is caused by things other than asbestos. He believes the issue is not resolved today as to whether our pure uniquely short-fibered asbestos is in any way associated with mesothelioma. When chest x-rays were done at the King City, California plant, it was for protection of the employees. At that time it was known asbestos could cause asbestosis, and eventually it was known that asbestos was associated with lung cancer and mesothelioma, There was no evidence associating our Calidria asbestos with the lung cancer and mesothelioma. This is supported by the current absence of disease in the Union Carbide personnel working at the King City plant. As of 1979 when he retired, no King City employees had developed asbestosis, asbestos related lung cancer, nr mesnhelioma. OCT-29-9 1 TUE 1 5^ R .03 Mr. Allen Gerson 'March 22, 1989 Page 8 Several studies were accomplished of Union Carbide Caiidria asbestos. These studies were accomplished based on samples provided by Union Carbide. To his knowledge Union Carbide never refused to provide any researchers who requested samples with amounts of their Caiidria asbestos. Union Carbide rommissioned at least two studies of Caiidria asbestos at the Mellon Institute. Among the purposes were to try to answer unresolved questions about potential asbestos hazards of Caiidria asbestos, tfo studies had directly implicated pure short fibered Chrysotile asbestos such as Caiidria in the medical literature. He recalled that there were two studies, both of them were reviewed with the doctor, neither lung cancer r.or mesothelioma was the focus of either cf these studies. In his mind pelletizing significantly reduced cast levels from handling Caiidria. It did not eliminate all the dust. One of the purposes was to reduce the level of dust to that below the threshold limit value. He believed the pelletizing was successful in that regard. He explained the threshold limit value was important because it was the ss.fe working level for asbestos exposure. We reviewed the asbestos toxicology report of May 8, 1969 affirmatively. He states it was communicated to customers, and reflected a cautious attitude on the part of Union Carbide in marketing their products. They were provided to the marketing personnel because they were the ones in primary contact with the customers. Additionally, he and others directly sent copies of the asbestos toxicology reports or even prepared them on request from customers and others. All in all, I thought the direct examination of D r . Durnehl went well. I have had some further thoughts on questions that should be ashed of him or considered if he is deposed again. I would emphasize with him in another deposition, after preparing him on the issue that neither he nor Union Carbide had any reason to suspect that the threshold limit values were not being observed by end users out in the field. This was one of the reasons why Union Carbide provided dust; sampling and dust study services to its customers. I would also like to hear his thoughts on Dr. Irving J. Selikoff, and whether Dr. Selikoff's views were immediately and unconditionally accepted by the medical and scientific community when presented, We've had many comments from other expert witnesses and corporate witnesses that I)r. Selikoff* s opinions were initially held at; arm's length in many respects because of the "firebrand" nature of his presentations. Additionally, I think we need to re-educate Dr. Durnehl on the Hr. Allen Cerson March 2 2 , 1989 Page 9 _pe. rhI aps coveri, ng new matters raised in furth*e*r " de" p" os*'itVioVnAsViUl or >LtSi addressing some of the concerns which I have mentioned in this letter. , appreciate the opportunity to be of service to Union Carbide in this case. Plase let Merry or me know if there s anything further we tan do in this regard. I look, forward i:o receiving a copyfroa you Allen, of the documents produced at the Joyce Hill depositioi and document production, I felt the deposition of Joyce dill went reasonably well. As we expected, there were some problems because of the nature of the file system that has been set up at your offices, rather than strictly through Union Carbide employees, 1 thought Joyce handled the matte:' well. Please let me know vrhat we ca.n do, With kindest regards, I am Very t""'" ---- WDH:bjas7272H cc: Mr. Terry McGeever William D. Harvard