Document R6r6kDv9vxDJerMNYk3rQDYV

VOLUME: I PAGES: 1-251 EXHIBITS: 1-48 COMMONWEALTH OF MASSACHUSETTS MIDDLESEX, SS. SUPERIOR COURT DEPT. OF THE TRIAL COURT NO. 08-0489 MAUREEN TAVAGLIONE, and as Executrix of ROBERT TAVAGLIONE, Plaintiff, Individually the Estate of * * * * * 3M COMPANY, et al, Defendants. AUDIOVISUAL DEPOSITION OF PNEUMO ABEX CORPORATION By Its Designee ALBERT INDELICATO Monday, September 26, 2011 Wentworth By The Sea 588 Wentworth Road New Castle, New Hampshire Darlene Caiazzo Sousa, CSR, RPR - EPPLEY COURT REPORTING, LLC Post Office Box 382 Hopedale, Massachusetts 01747 508.478.9795 508.478.0595 (Fax) www.eppleycourtreporting.com Indelicato Volume I September 26, 2011 2 1 AP PEARANC E S 2 3 Repr senting the Plaintiffs: WATERS & KRAUS, LLP 4 315 N. Charles Street Baltimore, MD 21201 5 BY: JONATHAN A. GEORGE, ESQ. 214.357.6244 214.357.7252 (Fax) 6 JGeorge@waterskraus.com 7 Repr senting Pneumo Abex, LLC: 8 DEHAY & ELLISON, LLP 36 South Charles Street 9 Suite 1300 Baltimore, MD 21201 10 BY: R. THOMAS RADCLIFFE, JR. ESQ. 410.783.7225 410.783.7221 (Fax) 11 TRadcliffe@dehay.com 12 Repr senting Genuine Parts Company: 13 POND NORTH, LLP 99 Derby Street 14 Su ite 2 01 Hi ngh am , MA 02 04 3 15 BY : JASON CARON, ESQ. 78 1.5 56 .0600 78 1.740.9 475 (Fax) 16 JC aro n@pondnoirth. com 17 Repr se nti ng Borg- Warn er Corp orat ion, by i ts 18 succ ss or in inter est, BorgWa rner Morse TE C, Inc. W eil -M cLain, a D ivision of the Marle y 19 Wyla n Co. ; and Wa rren Pumps, LLC . (Via Te lepho ne) 20 PIERCE, DAVIS & PERRITANO, LLP 90 Canal Street 21 Boston, MA 02114-2018 BY: CLINT WOLBERT, ESQ. 22 617.350.0950 617.350.7760 (Fax) CWolbert@piercedavis.com 23 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 5 18 2 39 Letter, November 3, 1948, American Brake Shoe Company, Medical Department Letter to Vandiver Brown, 10.6.48 57 57 4 10 Letter to W.T. Kelly, Jr., 11.12.48 58 5 11 Memorandum of Agreement, 11.20.36 62 6 12 Saranac Laboratory Asbestos Dust 7 Experiments 65 8 13 Letter to Vandiver Brown, 11.16.48 68 9 14 Letter to C.C. Blackwell, 10.8.64 78 10 15 Letter to William Veenstre, 11 10.13.64 81 12 16 Letter to R.B. Parker, 10.20.64 13 17 Memo to J .D. Henderson, 3.25.68 14 18 Report On FMSI Asbestos Study Committee Activities 15 19 Exhibit Number Skipped - No 16 Exhibit Marked 85 88 91 95 17 20 Letter to Milton Pogsin, 8.13.71 95 18 21 Letter to D.K. Rennie, 5.10.72 19 22 Friction Material Standard Institute Asbestos Study 20 Committee Minutes, 6.20.72 103 105 21 23 Minutes of the Meeting of the Asbestos Study Committee, 8.17.72 108 22 24 Results of U.S.P.H.S. Survey at 23 American Brake Shoe, Winchester, Virginia 110 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 9 1 reporter will administer the oath. 2 MR. GEORGE: My name is Jonathan 3 George. I'm an attorney at Waters & Kraus, and 4 I represent the plaintiff. 5 MR. RADCLIFFE: Tom Radcliffe, Pneumo 6 Abex, LLC. 7 MR. CARON: Jason Caron, Genuine Parts 8 Company. 9 MR. GEORGE: You guys want to do your 10 appearances. 11 MR. BJORNLUND: Kyle Bjornlund for 12 Honeywell International as successor in 13 interest to Bendix Corporation and Pneumo Abex, 14 LLC. 15 MR. ZAYOTTI: This is Matt Zayotti. 16 I'm representing Kaiser-Gypsum, Parker Hannifin 17 and Cleaver-Brooks. 18 MR. FLORES: This is Javier Flores 19 representing Georgia-Pacific, LLC. 20 MR. WOLBERT: This is Clint Wolbert 21 for Warren Pumps, LLC, Weil-McLain and 22 Borg-Warner. 23 MR. GEORGE: Anybody else? 24 ALBERT INDELICATO, EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 10 1 having first been duly sworn by the Notary 2 Public, was examined and testified as follows: 3 EXAMINATION CONDUCTED 4 BY MR. GEORGE: 5 Q. Can you p leas e introduce yourself for 6 th e lad ies an d g en tlemen of the jury? 7 A. Sure . I' m Al be rt D. Indelicato. 8 Q. And you a re c ur rently the president of 9 Pn eumo Abex, LLC , corr ec t? 10 A. That 's co rrec t. 11 Q. And you r curr en t stint as president of 12 Pn eumo Abex, LLC b egan i n May of 2011? 13 A. That 's co rrec t. 14 Q. You und er stan d that you've been 15 de si gna ted to te st ify to day as a representative 16 fo r Pne umo Ab ex? 17 A. That 's ri ght. 18 Q. And you u nder st and that your testimony 19 he re to day ca n a nd wil l bind that company? 20 A. I do . 21 Q. And you 'v e be en deposed previously, 22 co rr ect ? 23 A. I ha ve. 24 Q. You und er stan d the process? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 11 1 A. I do. 2 Q. Now, I want to talk very briefly about 3 your work background. As I understand your 4 background, you began working for Abex 5 Corporation in 1970? 6 A. That's correct. 7 Q. You joined them at their corporate 8 research center in Mahwah, New Jersey, as a lab 9 technician and ultimately progressed at the 10 research center to the position of development 11 engineer, correct? 12 A. That's right. 13 Q. And around 1972 you were assigned as a 14 liaison engineer responsible for the Friction 15 Products Group wherein you would travel to the 16 friction division headquarters in Winchester, 17 Virginia? 18 A. That's correct. 19 Q. In 1974 you worked at the new 20 manufacturing facility in Salisbury, North 21 Carolina? 22 A. That's right. 23 Q. '75 to '76 you worked quality 24 assurance programs for both the Winchester and EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 12 1 Salisbury plants, correct? 2 A. That's right. 3 Q. And Winchester manufactured asbestos 4 brakes for passenger cars, light trucks and 5 heavy trucks, and Salisbury was exclusively 6 heavy trucks? 7 MR. RADCLIFFE: Object to form. 8 A. That's correct. 9 Q. In 1976 to 1984 you were the director 10 of product engineering and development? 11 A. That's right. 12 Q. Eventually you were given a vice 13 president's title? 14 A. That's right. 15 Q. And from 1987 to 1993 you were the 16 president of Abex Friction Products? 17 A. That's right. 18 Q. From 1993 to 1995, you were the 19 president and CEO, chief executive officer, of 20 Abex, Inc.? 21 A. That's right. 22 Q. And you've been designated as the 23 person most knowledgeable based on your 25 24 years of working in the friction business? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 17 1 A. That's right. 2 Q. And in 1978 Abex became a wholly-owned 3 subsidiary of Illinois Central Industries? 4 A. Yes, sir. 5 Q. And in 1970 when you joined Abex, 6 there we re four business units, a ra ilroad 7 products group, a friction products group, a 8 castings busines s, and a hydraulics division? 9 A. That's right. 10 Q. And the one that we're going to be 11 talking about mostly today is the Friction 12 Products Group? 13 A. Okay. 14 Q. And you understand when we talk about 15 friction products, we're talking about material 16 that was put on metal foundations to be either 17 drum brake linings or disc brake linings? 18 A. I mean, I'll accept that as our 19 definition for today, except that Abex 20 generally didn't put brake linings onto those 21 metal carriers. That was either a brake 22 manufacturer's responsibility or rebuilder's 23 responsibility. 24 Q. What Abex did is they manufactured the EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 18 1 actual asbestos material that was then sent to 2 others, and they incorporated it into either 3 the drum brake or the disc brake as a complete 4 unit? 5 A. Others did - 6 MR. RADCLIFFE: Objection. 7 A. -- the incorporation, and Abex also 8 sold nonasbestos brake lining. It wasn't only 9 asbestos. 10 Q. You would agree with me that as of the 11 19 -- well, prior to 1980 the vast majority of 12 the brake linings that Abex manufactured 13 contained asbestos for passenger cars and 14 light- and heavy-duty trucks? 15 MR. CARON: Objection. 16 A. Yes. 17 Q. In fact, Abex has a very limited 18 amount of nonasbestos brakes for passenger cars 19 and trucks in 1965? 20 MR. RADCLIFFE: Object to form. 21 A. I don't know what your definition of 22 limited is, but I would agree the majority of 23 production was asbestos containing. 24 Q. Would you agree with me that the only EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 19 1 nonasbestos-containing brake linings that Abex 2 manufactured for passenger cars and light 3 trucks and heavy-duty trucks was the Velvet 4 Touch line of product? 5 MR. RADCLIFFE: Objection to form. 6 A. Yes. 7 Q. And that was a product that was first 8 introduced in the marketplace in 1965? 9 A. I don't know when the actual 10 introduction was. I thought it was earlier 11 than that but.......... 12 Q. And how successful was that line of 13 nonasbestos brake products? 14 A. It was pretty well accepted for severe 15 duty applications, police, ambulance, taxis, 16 that sort of thing. 17 Q. And how applicable was that product to 18 ordinary uses, passenger cars, heavy-duty 19 trucks, that kind of thing? 20 A. I think the general driving public 21 found them to be noisy and aggressive and wore 22 out prematurely. 23 Q. If you had to put a percentage of how 24 much asbestos-containing product versus EPPLEY COURT REPORTING, LLC 508.478.9795 ert Indelicato Volume I September 26, 2011 20 1 nonasbestos-containing product that Abex 2 manufactured during the 1960s, what would that 3 percentage be? 4 A. Ninety plus percent 5 asbestos - containing. 6 Q. Would that be true of the 1970s as 7 well? 8 A. No. 9 Q. How much would the percentage be in 10 the 1970s? 11 A. It varied a lot because as we got 12 closer to being totally out of asbestos there 13 was an, you know, ever increasing percent of 14 asbestos free, so I couldn't answer your 15 question with a definitive amount. 16 Q. You sold your last asbestos brake 17 linings in 1987? 18 A. That's right. 19 Q. And when did you begin phasing out 20 asbestos as a corporate policy? 21 A. It really wasn't a corporate policy 22 until, you know, 1986 or 1987. It was -- you 23 know, we had gotten to about, I would say, 24 nominally 85 percentile of nonasbestos. There EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 21 1 was still some asbestos-containing product, and 2 senior management made the decision that it 3 just didn't make sense to continue. 4 Q. Now, you agree with me that prior to 5 the 1980s the vast majority of the brake 6 linings Abex manufactured for passenger cars 7 and light- and heavy-duty trucks contained 8 asbestos, correct? 9 A. Yes. 10 Q. What would that percentage be? 11 A. Again, I don't know the exact 12 percentage. Vast majority I would agree with. 13 Q. Eighty-five? 14 A. If that's your definition of vast 15 majority, I'll accept that. 16 Q. I'm really looking for your definition 17 of vast majority? 18 A. Eighty-five. 19 Q. Okay. Would you agree that when Abex 20 sold friction material that contained asbestos, 21 typically the percentage of asbestos ranged 22 from approximately 25 to 70 percent? 23 A. I would say that out of all the 24 formulations to encompass every formulation EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 22 1 that Abex manufactured that would be an 2 accurate range. I would tell you that the 3 majority of product was probably in the 30 to 4 35 percent asbestos range. 5 Q. Is that true for both disc brakes and 6 drum brakes? 7 A. Yes. 8 Q. Did one type of product have more 9 asbestos than the other? 10 A. When you say "type of product," disc 11 versus drum? 12 Q. Correct. 13 A. No. They were essentially the same. 14 Q. Would you agree with me that there 15 were about three pounds of asbestos per set of 16 brake linings? 17 MR. RADCLIFFE: Object to form. 18 A. No, that seems awfully high, and I 19 think a lot depends on the type of product. I 20 mean, there were drum brake products that would 21 go on, let's say, a small Chevrolet car that 22 the entire -- all of the brake lining 23 themselves probably didn't weigh more than two 24 pounds. And yet, on a heavy-duty truck, you EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 23 1 might have, you know, a three-po und asbestos 2 load that's reasonable. But it' s certainly not 3 a reasonable number for all asbe stos brake 4 lining products. 5 Q. Do you agree that that' s a number that 6 has been used in the past to est imate the 7 amount of asbestos that is emitt ed from the use 8 of brakes in the environment? 9 MR. RADCLIFFE: Object to form. 10 A. I've never used that as an estimate. 11 Q. Are you familiar with a document that 12 is entitled Memorandum: Subject : Asbestos 13 Fiber Emissions Friction Materia ls from June 14 19, 1972, that's on American Bra keblok Division 15 Winchester office letterhead sig ned by E.H. 16 Feierabend, F-E-I-E-R-A-B-E-N-D? Is that a 17 document you've seen before? 18 MR. RADCLIFFE: I'm goi ng to object to 19 that characterization. That's a multiple page 20 document. Only the first page i s an Abex 21 document. The rest of it is not an Abex 22 document. It's incomplete. 23 MR. GEORGE: We'll be t alking about 24 it, don't you worry. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 24 1 A. Mr. Feierabend's letter is simply a 2 transmittal cover letter that says, "Referring 3 to an enclosed mailing from FMSI." 4 Q. Is the enclosed mailing attached? 5 MR. RADCLIFFE: Object to form. 6 A. I don't know. I mean, there's two 7 members of -- yeah, it certainly comes from the 8 friction or from -- yeah, from the Friction 9 Material Standard Institute. Whether or not 10 this is the memorandum that Mr. Feierabend is 11 referring, I really couldn't say. 12 Q. Well, he says, "The enclosed mailing 13 from the FMSI" -- now, that's the Friction 14 Material Standard Institute, correct? 15 A. That's right. 16 Q. That's an organization that Abex had 17 been a member of for many years at this point 18 in time? 19 A. Yes. 20 Q. And then they say that "The enclosed 21 mailing from the FMSI Asbestos Study Committee 22 has great interest now that the EPA emission 23 study report is about to be released. Note 24 that the item on brakes page 28. The EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 25 1 assumption appears to be disc brakes will be 2 cure-all. We will attend the next meeting of 3 the committee and report furth er findings. " 4 Now, what is attached is a June -5 this letter is dated June 19, 1972, correct? 6 MR. RADCLIFFE: Object to form. 7 A. I'm sorry? 8 Q. This is dated June 19, 1972? 9 A. Mr. Feierabend's letter is. 10 Q. And what is attached is a June 6, 11 1972, memorandum from E.W. Drislane, the 12 executive secretary of the FMSI, to members of 13 the Asbestos Study Committee, correct? 14 MR. RADCLIFFE: Object to form. 15 A. That's right. 16 Q. And Abex was one of the founding 17 members of the Asbestos Study Committee, 18 correct? 19 MR. RADCLIFFE: Object to form. 20 A. I know we were a member. I don't know 21 if we were a founding member. 22 Q. What this memorandum sent to the 23 members of Asbestos Study Committee were 24 various pages from an IRTRI paper, correct? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 26 1 MR. RADCLIFFE: Object to form. 2 A. I don't know. I mean, there's several 3 pages here. 4 Q. If you look at the second paragraph of 5 the June 6, 1972, letter from E.W. Drislane, it 6 says, "The pages from the IRI paper are" -- and 7 they list the pages enclosed, 2225, 2627? 8 A. I see that. I do see that. 9 Q. And if you look at page 25 of the 10 enclosure, they're talking about sources of 11 emissions from friction materials from the 12 results of normal day-to-day usage, correct? 13 A. What page are you on, 25? 14 Q. Twenty-five of the enclosure? 15 A. Yes. 16 Q. And it says that "Data concerning 17 motor vehicle brake linings for the whole of 18 the United States are given in the following," 19 and it has some data with regard to the number 20 of vehicles and brake linings and the pounds of 21 asbestos per set of brake linings, correct? 22 A. Yes. 23 Q. And it says, "for pounds of asbestos 24 per set of brake linings," it indicates three, EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 27 1 correct? 2 A. It does say that. 3 Q. Okay. You'd agree with me that 4 there's more asbestos in a drum brake than in a 5 disc break? 6 MR. RADCLIFFE: Object to form. 7 A. I don't agree with you. It depends on 8 the size of the brake, the size of the vehicle. 9 Q. Would you agree with me that prior to 10 the mid 1970s most brakes -- most cars 11 contained four-wheel drum brakes? 12 MR. RADCLIFFE: Object to form. 13 MR. CARON: Object to form. 14 A. Yes, most cars did. 15 Q. Starting in the early/mid '70s onward, 16 technology was dev eloped for disc brakes? 17 MR. RADCL IFFE: Object to form. 18 A. Technology was adapted. The Europeans 19 had been using disc brake for many years before 20 they were used in the United States, but 21 technology was adopted to North American 22 vehicles. 23 Q. And when disc brakes were introduced, 24 they were typically disc brakes in the front of EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 28 1 the car but drum brakes still on the back of 2 the car? 3 A. That's right. 4 Q. The first all-wheel disc brake car 5 first came on the market when? 6 A. I wouldn't know that offhand. 7 Q. Sometime in the late '70s, early '80s? 8 A. Probably mid '70s for sports cars. 9 Again, it depends if you're limiting our 10 discussion to cars manufactured in North 11 America. I mean, I think cars like Porsche, 12 Ferrari, high-performance cars had four-wheel 13 disc brakes earlier than that. 14 Q. Would you agree with me that European 15 cars had nonasbestos brakes earlier than 16 American cars? 17 A. No, I do not agree with that. 18 Q. Are you familiar with Scan-Pac? 19 A. Yes, I've heard of the company. 20 Q. A company out of Scandinavia? 21 A. No. Actually, I thought the company 22 was out of the midwest. 23 Q. Do you know when Scan-Pac first went 24 all asbestos-free? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 29 1 A. No, I don't. 2 Q. May I ask you this: Would you agree 3 that in 1971 after you had joined Abex, it was 4 one of the major suppliers of friction material 5 for brake and clutch use in the United States? 6 A. That Abex was? 7 Q. Yes. 8 A. No. 9 Q. Would you agree that in 1971 Abex 10 sales of asbestos-containing friction material 11 for use in vehicles operating in the United 12 States was projected to be in excess of $20 13 million? 14 A. That seems like a reasonable estimate. 15 MR. GEORGE: Let me show you what I'll 16 mark as Exhibit 2. 17 (Exhibit No. 2, Letter to Samuel 18 Lawton, 10.8.71 so marked) 19 Q. This is a letter from G.R. Graham, 20 director of friction materials research, to 21 Samuel T. Lawton, State of Illinois Pollution 22 Control, dated November 8, 1971, and ask you if 23 that's a document you've seen before? 24 A. Do you want this document back, try to EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 30 1 keep them straight? Yeah, I've seen this 2 document before. 3 Q. And in that document can you read for 4 me the first sentence of the second paragraph? 5 A. The one that you've highlighted. 6 Q. Correct? 7 A. "The Abex Corporation, through its 8 American Brakeblok Division, is one of the 9 major suppliers of friction material for brake 10 and clutch use in the United States. During 11 1971, our sales of asbestos-containing friction 12 material for use in vehicles operating in the 13 United States will be in excess of $20 14 million." 15 Q. Can you tell me when Abex first had a 16 relationship with the National Auto Parts 17 Association? 18 MR. CARON: Object to form. 19 A. To my knowledge I can't give you an 20 exact date, but it was my understanding that 21 Abex and NAPA, if you will, went back to the 22 origins of NAPA. I don't know exactly what 23 year that was, but it goes back a long time. 24 Q. Can you tell us a decade? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 31 1 A. '40s. 2 Q. And is it correct that NAPA was a 3 trade organization that was composed of 4 companies that manufactured and sold various 5 automotive parts? 6 MR. CARON: Object to form. 7 A. It's my understanding NAPA was a trade 8 organization. 9 Q. One of the members of that trade 10 organization was a company called Genuine 11 Parts? 12 A. That's correct. 13 Q. Genuine Parts manufactured a product 14 called Rayloc brakes? 15 MR. CARON: Object to form. 16 Q. Right? 17 A. A product? I mean, I knew Rayloc as 18 an operating entity of Genuine Parts. 19 Q. And as an operating entity, what did 20 that entity do? 21 A. They rebuilt a variety of products, 22 brakes being one of them. 23 Q. And Abex would sell to Genuine Parts 24 the asbestos linings that would go into the EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 32 1 rebuilt brakes? 2 MR. RADCLIFFE: Object to form. 3 MR. CARON: Object to form. 4 A. Abex would sell asbestos or 5 asbestos-free linings to Rayloc. 6 Q. But if we're talking about any time 7 prior to the mid 1980s, you would agree that a 8 majority of what Abex was selling to Genuine 9 Parts was asbestos-containing material? 10 MR. CARON: Object to form. 11 A. No. If you say mid 1980s, no, I 12 wouldn't agree with that. Again, there's a 13 point in time where asbestos-free is introduced 14 and continues to grow and grow and grow until 15 1986 or so where it's probably 90 percent of 16 Abex's business, approximately. 17 Q. You would agree with me that prior to 18 1970s almost all of the material that Abex sold 19 to Genuine Parts would be asbestos-containing 20 linings? 21 MR. CARON: Object to form. 22 A. Yes, I would. 23 Q. Let me ask you: Would you agree that 24 the safety of the consumer should be the EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 33 1 primary concern of Abex when selling its 2 products? 3 A. Yes. 4 Q. Would you agree that any risk of 5 serious injury or death is always unreasonable 6 if there are reasonable means to reduce or 7 eliminate that risk? 8 MR. RADCLIFFE: Object to form. 9 A. Yes. 10 Q. Would you agree that Abex should 11 become aware of any potential hazards 12 associated with the contents of the products 13 that they sell? 14 MR. RADCLIFFE: Object to form. 15 A. I'm not sure I understand in the 16 context of should. I mean, Abex always tried 17 to understand the limitations of its product 18 and appropriately deal with it. 19 Q. Before a company puts a product in the 20 stream of commerce, would you agree that they 21 have an obligation to investigate the 22 components of that product to make sure that 23 there aren't any potential hazards associated 24 with the normal use of that product? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 34 1 MR. RADCLIFFE: Object to form. 2 A. Yes. 3 Q. And you would agree that Abex should 4 share knowledge of any potential hazards 5 associated with the contents of their products 6 with the public who is buying their product? 7 MR. RADCLIFFE: Object to form. 8 A. Yes. 9 Q. You would agree that Abex should never 10 keep potential hazards of their products 11 secret? 12 A. Yes. 13 Q. You would agree that Abex should test 14 its products to determine if they are 15 potentially dangerous before selling them? 16 MR. RADCLIFFE: Object to form. 17 A. Yes. 18 Q. You'd agree that as soon as Abex 19 learns its product is dangerous, the company 20 should inform consumers of the potential 21 danger? 22 MR. RADCLIFFE: Object to form. 23 A. Yes. 24 Q. You agree that Abex should inform EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 35 1 co nsumers if it learns a component of a product 2 is potentially dangerous even afte r placing it 3 on the market? 4 MR. RADCLIFFE: Object to form. 5 A. Yes. 6 Q . Now you a gre e t ha t Ab ex n ever went out 7 an d di d any kind o f a i r sa mp li ng i n garages 8 wh er e se rvic emen w ere wo rk in g wi th Abex 9 pr od uc ts ? 10 A . Tha t's ri ght . 11 Q . You agr ee yo u 'v e se en d oc uments at 12 le as t th at i n 19 36 Ab e x, a lo ng w it h several 13 ot he r ma nufa ctur er s o f a sb es to s pr oducts, 14 ag re ed t o un derw ri te c er ta in e xp er iments with 15 as be st os dus t to b e c o nd uc te d Dr . Leroy U. 16 Ga rd ne r at S aran ac La b or at ory at S aranac Lake 17 in N ew Y ork? 18 A . Yes . 19 Q . And you a gre e t ha t at t ha t time 20 Sa ra na c Labo rato ri es w as o ne o f th e most 21 pr es ti gi ous labo ra tor i es i nv es ti ga ting lung 22 di se as e? 23 A . As I re ad do c umen ts , th at 's my 24 un de rs ta ndin g. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 36 1 Q. And one of the lung diseases that 2 Saranac Laboratory investigated was diseases 3 caused by exposure to asbestos? 4 A. That was the intent of the study, yes. 5 Q. Now, one of the -- Abex had a medical 6 department, correct? 7 A. It did. 8 Q. And the first medical director of that 9 medical department was Lloyd Hamlin, correct? 10 A. I don't believe that to be the case. 11 I think there was someone who predated Dr. 12 Hamlin. 13 Q. Let me just make sure I have my 14 information. According to your answers to 15 interrogatories, you were asked to describe 16 your corporate structure concerning medical 17 directors, industrial hygienists, physicians, 18 biological scientists, and consultants in these 19 fields from 1930 to 1980. In your response the 20 first name listed as the medical director is 21 Lloyd Hamlin? 22 A. That's right. 23 Q. So if there was anybody prior to him, 24 you -- EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 37 1 A. It wo ul d ha ve b een pr ior to 1 93 0. 2 Q. Whe n wa s yo ur medic al dep art men t 3 es ta blis hed? 4 A. I d on 't k no w th e ex ac t da te, bu t I 5 kn ow tha t th er e wa s a fe male medic al d ir ec to r 6 th at pre cede d Dr . Ha ml in ; pr es umab ly t ha t wa s 7 be fo re 1 93 0. 8 Q. The i nf orma ti on tha t you rec o rd ed i n 9 th es e in terr og at or ie s be gins w ith Dr. Ha ml in in 10 19 41 , co rrec t? 11 A. Oka y. Ye s. 12 Q. And h e wa s th e medi ca l di rec t or f or 13 ab ou t 20 yea rs ? 14 A. Tha t' s ab ou t ri ght. 15 Q. And D r. H am li n was an exp ert on 16 pn eumoco nios is d is ea se s caus ed by exp o su re t o 17 du st ? 18 MR. RAD CL IF FE : Obj ec t to fo rm. 19 A. I w ou ld s ay t ha t he w as k now l edge ab le. 20 I th ink he w as a n ad vo ca te f or stu dyi n g it . To 21 ca ll him an expe rt , I th ink hi s exper t is e wa s 22 de ve lope d ov er t ime be ca use th ere was n 't 23 an ything known a bo ut t ha t at t hat time i n 24 hi st ory. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 38 1 Q . Wou ld you a gr ee tha t Ab ex wa s 2 ge ne ra lly aw are th at s ome times a cert ain a mo unt 3 of g ri nding or san di ng t a kes pla ce pr ior t o the 4 in st al lation of br ak e sh o es on a car? 5 A . You know, dep en d ing , ag ain, on th e 6 ti me f rame. Years a go , I th ink that was a 7 li tt le more common . I k now duri ng my empl oy 8 wi th Abex st arting i n 19 7 0 t hat we ma de ev ery 9 ef fo rt to wo rk wit h re bu i lde rs t o try to g iv e 10 th em - - and origin al e qu i pme nt b rake 11 ma nu fa cturer s as w el l, t o gi ve t hem a fr ic ti on 12 ar ti cl e that was r ea dy t o in stal l withou t any 13 fu rt he r mach ining or s an d ing or grind ing . 14 Q . Pri or to th e 19 7 0s, you woul d a gr ee 15 th at i t was fairly c ommo n fo r me chani cs to 16 pr op er ly fit a bra ke s ho e , p arti cular ly in a n 17 in st an ce whe re the re w as a t urne d drum, to h ave 18 to d o some manipul at io n o f t he s urfac e o f th at 19 sh oe t o make sure th at t h ere was prop er 20 co nt ac t? 21 MR. RADCL IF FE : Obj ect to fo rm. 22 A . I w ouldn' t sa y the majo rity. I mea n, 23 I kn ow that there we re i n sta nces where t ha t 24 happ en ed, bu t I di dn 't - - I neve r ass oci at ed EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 39 1 that with the majority of the time. 2 Q. Were you aware that from your review 3 of company documents and your experience that 4 there were mechanics that had to grind, sand or 5 otherwise manipulate the surface of brake shoes 6 prior to their installation? 7 A. From - 8 MR. RADCLIFFE: Object to form. 9 A. -- time to time. 10 Q. Now, you agree that in 1944 Dr. Hamlin 11 wrote a paper entitled Industrial Dust, the 12 Pneumoconiosis, that appeared in the Industrial 13 Medicine Journal in March 1944? 14 A. Your question is? 15 Q. You 're aware of that documen t? 16 A. Yes . I've no t read it, but I am aware 17 he publ ished it. 18 Q. Tha t document o n the bottom of it has 19 a Bates stamp numbering that says "SPNY" 20 followed by six digits. You understand that to 21 be a document that comes from the Abex document 22 depository, correct? 23 MR. RADCLIFFE: Object to form. 24 A. I don't know that SPNY means that. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 40 1 Q. You've never been told that the 2 documents in the depository have all been Bates 3 stamped? 4 A. Yeah, but I don't recognize that 5 serialization, if you will, or sequencing as 6 one of the ones I'm more familiar with things 7 that literally say Bates number. So I don't 8 know the origin of this document. 9 Q. In your review of documents that are 10 from the Abex document depository, have you 11 seen the SPNY nomenclature used? 12 A. I don't remember seeing it before. 13 Q. Now, in this paper that was published 14 in 1944, Dr. Hamlin is listed as the medical 15 director for American Brake Shoe Company 16 Chicago, correct? 17 A. Yes. 18 Q. If you turn to the second page of the 19 document, he indicates that the simplest way of 20 understanding the term "pneumoconiosis" is 21 stating that the term refers to a condition of 22 the lungs resulting from the prolonged 23 inhalation of dust, whether harmful or inert. 24 Do you see that? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 41 1 A. I don't. This is, you know, kind of 2 an eye test. If you'd like to take a break and 3 give me a chance to read this, I'll be happy to 4 do that and try to intelligently answer your 5 questions. 6 Q. How about I just give you my 7 highlighted copy, and you'll be able to see? 8 A. Okay. Is this from what page in that 9 document? 10 Q. Second page. It is the - 11 A. It says it covers a variety of 12 conditions. It's defined as chronically -- as 13 a chronic pulmonary fibrosis due to the 14 inhalation of irritating dust. 15 Q. Among the pneumoconiosis is 16 asbestosis, correct? 17 A. Yes. 18 Q. Asbestosis is a disease of the lungs 19 caused by exposure to asbestos? 20 MR. RADCLIFFE: Object to form. 21 MR. CARON: Object to form. 22 A. Yes. 23 Q. Now, it indicates, does it not, that 24 asbestos and silica are the only two dusts that EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 42 1 had the capacity to produce fibrosis? 2 A. I don't see where it says that. I see 3 it referring to pneumoconiosis includes 4 specifics diseases, and it goes on to say 5 asbestosis, siderosis, silicosis, etcetera. 6 Q. The first sentence on the second 7 column - 8 A. Uh-huh. 9 Q. -- what does that say? 10 A. "Of the dust studied up to the present 11 time, only silica and asbestos contain" or, I'm 12 sorry -- "produce definitive pulmonary 13 fibrosis." 14 Q. I'm going to show you the second page 15 of Dr. Hamlin's article. Would you agree with 16 me that Dr. Hamlin was aware when he wrote this 17 article in 1944 that there were 41 deaths from 18 asbestosis that had been reported in England up 19 to 1934? 20 A. Forty-one deaths were reported from 21 the cause -- from this cause in England up to 22 1934. 23 Q. And let me show you the next page, the 24 document which is page three. He indicates, EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 43 1 does it not, that "The greatest occupational 2 hazard exists in mining, handling and crushing 3 crude asbestos, making insulation and the 4 cardigan weaving of asbestos. In other 5 industries, such as the compounding of 6 materials for brake linings, the hazard is 7 recognized but the disease is uncommon." 8 Is that what he says? 9 A. I'm not seeing what you read. 10 Q. Starting right here. 11 A. You know, really, I really want to try 12 to be helpful and answer your questions to the 13 best of my ability, but having pages out of 14 context I'm really uncomfortable. I mean, I 15 don't even know that is part of Hamlin's 16 article at this point so.............. 17 Q. Nevertheless, this document right 18 there says exactly what I said it said, 19 correct? 20 MR. RADCLIFFE: Object to form. 21 A. I'm reading from a document that says 22 SPNY 000230. What the context of that page is, 23 it's out the context, but what is highlighted 24 is "In other industries such as the compounding EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 44 1 of materials for automative brake lining, the 2 hazard is recognized but the disease is 3 uncommon." 4 Q. In fact, in this article Dr. Hamlin 5 actually talked about experiences that were had 6 at the Abex plant, correct? 7 MR. RADCLIFFE: Object to form. 8 A. In one of our plants where 9 considerable asbestos is used in the 10 manufacture of automative brake lining, a 11 recent survey of 189 employees exposed to 12 various amounts of dust revealed that no actual 13 cases of fibrosis." Would you like me to go 14 on? 15 Q. Sure. 16 A. "A few men's films" -- presumably 17 referring to the x-rays -- "showed haziness 18 which suggested evidence of the disease, but 19 they were not significantly typical to warrant 20 diagnosis of asbestosis. However, it should be 21 noted that the hazard in this particular plant 22 was well controlled by adequate exhaust 23 ventilation." 24 Q. One of the things that Abex knew as EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 45 1 far as back as 1940s was that one way that you 2 can prevent disease is to lessen exposure by 3 using adequate exhaust ventilation? 4 A. Yes. As well as other means, but that 5 was certainly a principal one used in a 6 manufacturing environment where raw asbestos 7 fiber was used. 8 Q. And one of the sources for Dr. 9 Hamlin's knowledge as contained in the 10 bibliography is a paper by Merewether and Price 11 that was published in 1930, correct? 12 A. That's what's referenced here, yes. 13 Q. Now, in 1947 Dr. Hamlin wrote another 14 paper entitled Industrial Diseases of the 15 Chest. Let me just show you that document. Is 16 that a document you've seen before? 17 A. Just before the deposition today, you 18 showed it to me, but I hadn't had a chance to 19 read it. 20 MR. GEORGE: I'm going to make as 21 Exhibit 3 the prior paper by Dr. Hamlin. 22 (Exhibit No. 3, Industrial Dust - The 23 Pneumoconiosis, L.E. Hamlin so marked) 24 MR. RADCLIFFE: Can you tell me what EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 46 1 Exhibit 2 was? 2 MR. GEORGE: Exhibit 2 was the Abex 3 letter of November 8, 1971. And Exhibit 1 is 4 the Answers to Interrogatories. 5 MR. RADCLIFFE: Okay. Thank you. 6 Q. I just want to ask you one question 7 about this document. If you look at the 8 highlighted portion of that -- I'll give it to 9 you to make it easier for you -- which is on 10 page six, Dr. Hamlin talks about the fact that 11 occupational fibrosis can result from the 12 inhalation of asbestos fibers and that he 13 references a 1940 paper from Dr. Gardner that 14 stated that 27 percent of exposed workers were 15 involved, and those with more than 15 years 16 experience the percentage rose to 60. That's 17 what he wrote, correct? 18 A. Yeah, but, again, I believe that this 19 was in reference to workers of raw asbestos 20 fiber, not automobile guys or even people 21 within the Abex factories. 22 Q. Well, in your Abex factory you had 23 individuals, did you not, that were using raw 24 asbestos fibers? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 47 1 A. Some. 2 Q. Now, would you agree with me that 3 during this period of time, the 1940s, Abex was 4 a member of a group called the Industrial 5 Hygiene Foundation? 6 A. I believe that to be the case, yeah. 7 MR. GEORGE: I'm going to mark the 8 second Hamlin article as Exhibit 4. 9 (Exhibit No. 4, Industrial Diseases of 10 The Chest, L.E. Hamlin so marked) 11 Q. I think in your responses to 12 interrogatories in this case - 13 A. This case being? 14 Q. Being the Tavaglione case? 15 A. Okay. 16 Q. -- you indicated that Abex was a 17 member of the Air Hygiene Foundation of America 18 which later became the Industrial Hygiene 19 Foundation from 1937 to 1961? 20 A. That's right. 21 Q. Now, would you agree with me that the 22 Industrial Hygiene Foundation is an 23 organization that was touted as the only 24 national association of private industries for EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 48 1 the advancement of employee health? 2 MR. RADCLIFFE: Object to form. 3 A. I had no personal knowledge of that. 4 I don' t know what thei r char ter was or how they 5 we re r ec ogni zed. 6 MR. GEORGE: I' m go ing to show you a 7 do cume nt tha t we' ll ma rk as Exhibit 5. 8 (Ex hibit No. 5, Let ter to S. Simpson, 9 12.2.46 so marked) 10 Q. I'm just going to provide you with my 11 highlighted copy because it's easier for 12 reference for you? 13 A. Okay. 14 Q. And ask you if this is a document that 15 you have seen before. The heading is 16 Industrial Hygiene Foundation of America, Inc. 17 It's dated December 2, 1946, and it's from John 18 F. McMahon, managing director. 19 A. I have not seen this document before. 20 And yes, it is a letter from John F. McMahon. 21 It's dated December 2, 1946, and it's on 22 letterhead from the Industrial Hygiene 23 Foundation of America to one Mr. S. Simpson, 24 president of Raybestos-Manhattan, Incorporated. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 49 1 Q. Now in this letter they indicate that 2 W.B. Given, Jr., the president of the American 3 Brake Shoe Company was being elected as a new 4 trustee of the organization. Is that 5 information that you had gleaned from your 6 experience with Abex? 7 A. I know Mr. Given was president about 8 that time. I had no knowledge that he was a 9 trustee of the Industrial Hygiene Foundation. 10 Q. From your review of documents for 11 Abex, were you aware that the Industrial 12 Hygiene Foundation was an association of 13 industries for the advancement of healthful 14 working conditions? 15 A. That was my nominal understanding of 16 their purpose, yes. 17 Q. Did you agree with me that as part of 18 th e -- p art of you r me mb er sh ip to th 19 In du st ri al Hyg iene F ou nd at io n, membe 20 al lo we d or permitt ed t o su bs cri be to 21 In du st ri al Hyg iene D ig es t? 22 A . I wou ldn' t kn ow . I me an , a 23 of t he se th.ing s pr ed at e my b irth by 24 number of years. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 50 1 Q. Well, but as the person who is being 2 offered as the one most knowledgeable of the 3 corporation, have you done any investigation to 4 see what the historical knowledge was of Abex 5 with regard to asbestos? 6 A. Well, I have no way to find out 7 whether or not we were entitled to a 8 subscription to a particular periodical. I 9 mean, there's nobody that's alive that could 10 answer that question for me, and I haven't seen 11 any documents that say one of your benefits for 12 being a member is that you get this document. 13 MR. GEORGE: I'm going to show you 14 what I'll mark as Exhibit 6. 15 (Exhibit No. 6, Industrial Hygiene 16 Digest, March, 1947 so marked) 17 Q. And just ask you: In your review of 18 the documents that were kept by Abex whether 19 you've seen any documents similar to that which 20 is -- this is an excerpt from an Industrial 21 Hygiene Digest? 22 A. I have not seen anything that looks 23 like this before. 24 Q. How did you get your information that EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 51 1 of the years of membership of Abex and the 2 Industrial Hygiene Foundation? 3 A. Through documents review and with the 4 help of counsel. 5 Q. And through that document review and 6 the help of counsel, you've never been shown 7 any of the Industrial Hygiene Digests that were 8 published by the Industrial Hygiene Foundation? 9 MR. RADCLIFFE: Object to form. 10 A. I don't recall ever seeing anything 11 that looks like that. 12 Q. I understand from your responses to 13 interrogatories in this case that Abex never 14 maintained a library of periodicals or books on 15 any subject related to their manufacture of 16 asbestos products? 17 MR. RADCLIFFE: Object to form. 18 Q. Is that accurate? 19 MR. RADCLIFFE: Object to form. 20 A. Well, we didn't maintain any kind of 21 central library. I mean, I know as an 22 executive and an engineer at Abex, I had my own 23 little personal library of books that I would 24 refer to, but there wasn't any librarian. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 52 1 There wasn't a central place where these kinds 2 of periodicals were kept. 3 MR. GEORGE: Let me show you what I'll 4 mark as Exhibit 7. 5 (Exhibit No. 7, Industrial Wastes, 6 14th Annual Meeting so marked) 7 Q. This is an excerpt from Industrial 8 Wastes, 14th annual meeting from the Industrial 9 Hygiene Foundation. It's a transactions 10 bulletin No. 13 dated 1949. And listed as an 11 officer of the Industrial Hygiene Foundation is 12 William B. Given, Jr., president American Brake 13 Shoe Company, New York, New York. 14 And the reason why I'm offering that 15 to you, I just want to see if that's a document 16 that you've seen before in your quest to 17 determine Abex's membership to this 18 organization? 19 A. No, I've never seen this document 20 before. 21 Q. In the 1940s and forward, would you 22 agree that one of the jobs of the medical 23 department at Abex was to conduct annual 24 examinations of its employees? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 53 1 A. One of its tasks was to do that, yes. 2 Q. And this would include taking chest 3 x-rays, doing pulmonary function studies and 4 physical examinations, correct? 5 A. Yeah, as well as other testing, yes. 6 Q. And, in fact, at some point in the 7 1950s or earlier, Abex had a van that was 8 equipped with chest x-ray machinery so that it 9 can bring it to the gates of the facility and 10 run its employees through it to take 11 appropriate x-rays? 12 A. Yes, as well as vans for hearing 13 tests, pulmonary function and so on, yes. 14 Q. One of the purposes for chest x-rays 15 and breathing tests was the fact that Abex was 16 aware that exposure to asbestos and other dust 17 can cause lung diseases? 18 A. Well, it was broader than that because 19 Abex -- again, you started out the deposition 20 talking about other divisions of Abex. We had 21 castings and -- so there was concern about dust 22 in general, silicosis, lead at the bronze 23 foundries. 24 So chest x-rays were typically used at EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 54 1 all of the different businesses of Abex in a 2 quest to try to safeguard our employees' health 3 and to give heads-up if there were any kinds of 4 issues that rose. 5 Q. At least as it applies to the friction 6 materials division, one of the occupational 7 hazards that Abex was aware of and was 8 screening its employees for was diseases caused 9 by exposure to asbestos, correct? 10 A. One of, yes. 11 Q. And, in fact, Abex first started doing 12 air sampling for asbestos dust in its plants in 13 the 1940s at the Detroit plant, correct? 14 A. That's right. 15 Q. And the Detroit plant is where they 16 made passenger car, light truck and heavy truck 17 friction material? 18 A. That's right. 19 Q. We talked earlier about the fact that 20 in 1936 Abex participated in asbestos dust 21 studies at Saranac Lake, correct? 22 A. We didn't participate. We were a 23 funder. I think we funded $200 to help Dr. 24 Gardner progress his research on that topic. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 55 1 Q. You were aware that Abex was one of 2 the companies that sponsored the study? 3 A. Yes. 4 Q. And you were aware also from your 5 review of historic documents that the sponsors 6 of the study had an opportunity to comment on 7 the study prior to its publication? 8 A. Yes. 9 Q. And, in fact, Dr. Hamlin offered 10 specific comments about that study in writing 11 prior to the meeting because he couldn't be 12 present at the meeting, correct? 13 A. That's not quite the way I remember 14 it. I think Dr. Hamlin had some observations, 15 but I think I recall seeing a document that 16 said, yeah, I can't attend and another document 17 that said, fine, publish it the way you see 18 fit. So I don't think any of Dr. Hamlin -- I 19 don't think Dr. Hamlin ever really changed the 20 wording of the report. 21 Q. But he did offer comments with regard 22 to his perceptions of the report, the proposed 23 report? 24 A. I'll accept that he offered comments, EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 56 1 yes. 2 Q. And there's a letter that's dated 3 November 3, 1948, that's on American Brake Shoe 4 Company letterhead medical department that's 5 computer -- not -- didn't have computers back 6 then, but it's a typewritten signed by L.E. 7 Hamlin. I'm just asking you if that's a letter 8 you've seen before in this litigation with 9 regard to the Saranac studies? 10 A. I believe I have, but this copy is so 11 poor that I can't really read it at all. If 12 you have a better copy or -13 Q. I just want to make sure that that's 14 what we're talking about. 15 A. I think there were a series of letters 16 that went back and forth between a Vandiver 17 Brown at Johns Manville and, quote, Abex that 18 dealt with that topic, but, ultimately, it was 19 like, you know, fine, publish it. 20 MR. GEORGE: We'll mark this as 21 Exhibit 8. 22 Q. I'm just going to turn your attention 23 to the first sentence that says, "I have read 24 carefully the report you've forwarded and am EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 57 1 returning it with my comments." And then he 2 goes on to give his comments. 3 (Exhibit No. 8, Letter, November 3, 4 1948, American Brake Shoe Company, Medical 5 Department so marked) 6 A. I agree that that's what the first 7 sentence says, and, honestly, I can't make out 8 the rest of the document at all. I don't even 9 know what the next line says. 10 Q. Now that was November 3, 1948. On 11 November 8, 1948, in a document that we'll mark 12 as Exhibit 9, there's a letter from the 13 executive vice president of the American 14 Brakeblok Division to Vandiver Brown that's 15 dated, like I said, November 8, 1948. This is 16 a letter that you've seen correspondence with 17 regard to Abex's sponsorship of Saranac Lake 18 studies, correct? 19 A. Yes. 20 (Exhibit No. 9, Letter to Vandiver 21 Brown, 10.6.48 so marked) 22 A. Again, that's hardly legible, but I do 23 recognize the letter. 24 Q. It says, "Thank you for your letter of EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 58 1 October 27, which has been reviewed by our 2 medical department, and while Dr. Hamlin would 3 like very much to be in attendance at the 4 meeting that you've scheduled for November 11, 5 it is impossible for him to do so. We would, 6 therefore, like to ask that you" something "for 7 us." You have a better copy of that right 8 there. "That you act for us in connection with 9 any decisions that have to be made." I'm just 10 going to - 11 MR. GEORGE: Is it all right if I mark 12 this? 13 MR. RADCLIFFE : Yes. 14 MR. GEORGE: It's a much cleaner copy. 15 MR. RADCLIFFE : I gave it to him so he 16 could read a long, and yo u to ok i t fr om him. 17 MR. GEORGE: I' ll j ust re ad it , and 18 when I'm don e, give it r ight bac k to hi m. 19 A. I'm not sure of the pro to co l. 20 MR. RADCLIFFE : I g ave hi m ano ther 21 copy. 22 (Exh ibit No. 10, Letter to W.T. Kelly, 23 Jr., 11 12.48 so marked) 24 Q. And then he says at the end of it, "I EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 59 1 thought you'd be interested in the remarks of 2 our medical director Dr. L.E. Hamlin in 3 connection with this report, and I am, 4 therefore, attaching a copy." 5 MR. RADCLIFFE: Object to form. 6 A. Yes, that's what it says. 7 Q. Now, there's a Bates stamping on the 8 bottom of this one that says CRMC 002653. Do 9 you have any idea what that Bates stamp is? 10 A. I do not. 11 Q. Now the meeting with regard to this 12 publication was held on November 11 in New York 13 City, correct? 14 A. November 11 when? 15 Q. 1948? 16 A. Okay. 17 Q. You've seen - 18 MR. GEORGE: Do you have a better copy 19 of the November 12 letter? 20 MR. RADCLIFFE: Yeah, but it's got 21 highlighting on it. 22 MR. GEORGE: That's okay. 23 Q. What you have in your hand is a letter 24 dated November 12, 1948, from Vandiver Brown to EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 60 1 Mr. Kelly, the executive vice president of 2 American Brakeblok, correct? 3 A. That's right. 4 Q. And what he's doing is reporting to 5 Mr. Kelly about the meeting since Abex was 6 unable to attend, correct? 7 A. That's right. 8 Q. And what he says is they've looked at 9 -- "We've read Dr. Hamlin's memorandum of 10 November 3, and it was the consensus that his 11 judgment was correct concerning the references 12 to pneumonia among the experimental animals." 13 Correct? 14 A. Yes. 15 Q. It goes on to to say that, "It was the 16 unanimous opinion, however, that the reference 17 to cancer and tumors should be deleted, and 18 this is a point we would insist upon for the 19 following reasons." Correct? 20 A. Yes. 21 Q. And what that means is when Dr. 22 Gardner had done his preliminary draft of the 23 Saranac experiments, he found that a number of 24 the mice had lung cancer or lung tumors that EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 61 1 were cancerous? 2 A. That's not my understanding. 3 Q. Well, he goes on to say, does he not, 4 that the reason why they wanted to delete 5 references to cancer and tumors were that the 6 experiments were not directed toward 7 determining the incidence, if any, of cancer as 8 a result of asbestos exposure, correct? 9 MR. RADCLIFFE: Object to form. 10 A. It says, "And that the strain of the 11 mice" -- "white mice." 12 Q. We'll go through each one of them. 13 That's the first one, correct? 14 A. Yes. 15 Q. The second one was "Dr. Gardner 16 indicated prior to his death that he believed 17 this aspect should be made the subject of a 18 separate study which would take from to two 19 three years." Correct? 20 A. That's my understanding, and, in fact, 21 Dr. Gardner went for funding from the 22 government to study that and was rejected. 23 Q. Dr. Gardner was the one that was 24 originally contracted to do these experiments, EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 62 1 correct? 2 A. Well, again, you know, from a legal 3 point of view, I don't know if the contract was 4 with the Saranac Laboratories or Dr. Gardner, 5 so I don't know. It was Gardner who worked at 6 Saranac labs. Upon his death one of his 7 colleagues finished up his work. I presume the 8 contract, quote, was with Saranac Laboratories. 9 Q. Dr. Gardner died in 1946, correct? 10 A. I think that's correct. 11 Q. Just to clarify that earlier point 12 that you made -- and we'll mark this as Exhibit 13 No. 11 -- this is the memorandum of agreement 14 dated November 20, 1936. And it is signed - 15 one of the signatories is the vice president of 16 American Brakeblok Corporation. Let me just 17 show you that memoranda and agreement and ask 18 if you've seen that before. 19 (Exhibit No. 11, Memorandum of 20 Agreement, 11.20.36 so marked) 21 A. Yes. 22 Q. And that memorandum agreement 23 indicates, does it not, that these entities 24 were contracting with Dr. Gardner to conduct EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 63 1 these studies? 2 A. It says "to be conducted by Leroy 3 Gardner at the Saranac Laboratories." We got 4 enough lawyers in the room. You guys can tell 5 me the contract law. Whether it was Saranac 6 Labs or Dr. Gardner, I can't tell you. 7 Q. Now, I just want to finish with regard 8 to the cancer references. The third reason why 9 they made a unanimous opinion to delete 10 references to cancer and tumors was that Dr. 11 Gardner also indicated that he believed the 12 question of cancer susceptibility would be 13 omitted from the report. "This statement is 14 contained in his letter to me of February 24, 15 1943, with which he enclosed his outline of a 16 proposed monograph on asbestosis." That's what 17 it says, correct? 18 A. It does say that. 19 Q. It also appears from Dr. Gardner's 20 outline that certain strains of white mice 21 developed tumors without apparent cause and 22 that such a strain of white mice was 23 unintentionally used in three inhalation 24 experiments with asbestos. Correct? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 64 1 A. Yes. 2 Q. Would you agree with me that the tenor 3 of this letter suggests that during his 4 experimentation Dr. Gardner determined that 5 some of the mice in the experiment developed 6 lung cancers or tumors of the lung? 7 A. Well, I don't agree with you. I think 8 it's absolutely out of context. From other 9 documents that I've read I've gleaned and have 10 the position that there was no controlled 11 animals. The whole study was flawed, and I 12 think there's a lot of speculation that that 13 was probably why Dr. Gardner was turned down 14 for additional funding when he went to, I 15 believe it was, the National Cancer Society, or 16 some entity like that, for additional funding. 17 Q. Have you seen the proposed monograph 18 from Dr. Gardner and the revised monograph? 19 A. I don't believe I have, no. 20 Q. Okay. Now, you would agree with me - 21 and I'm going to show you a letter from October 22 27, 1948, that occurred prior to this meeting. 23 MR. GEORGE: And we'll mark this as 24 Exhibit 12. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 65 1 (Exhibit No. 12, Saranac Laboratory 2 Asbestos Dust Experiments so marked) 3 Q. That the companies that sponsored this 4 research were given copies of the draft of what 5 purported to be part one of a report from 6 Saranac Laboratories entitled Pneumoconiosis. 7 Let me just first show you this 8 correspondence which I'll mark as Exhibit 12. 9 This is from Vandiver Brown, secretary and 10 general attorney to American Brakeblok Division 11 of A.B.S.A.P and others, October 27, 1948? 12 A. Let's clarify, Vandiver Brown was not 13 with Abex. He was -- 14 Q. Understood. 15 A. Okay. Well, the way you said it, it 16 sounded like you were saying he was from Abex. 17 Q. He was general counsel from 18 Raybestos-Manhattan? 19 A. I believe that's correct, yes. 20 Q. Raybestos-Manhattan was - 21 MR. RADCLIFFE: He was general counsel 22 to Johns Manville. 23 THE WITNESS: You're right. I'm 24 sorry. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 66 1 Q. Johns Manville at the time was of one 2 the leading manufacturers of asbestos products 3 in the United States, correct? 4 MR. RADCLIFFE: Object to form. 5 A. They were a principal miner of 6 asbestos. 7 Q. What Vandiver Brown did is he sent 8 copies -- well, first of all, have you seen 9 that correspondence before? 10 A. I don't believe I have. 11 Q. According to that letter, he sent 12 copies of the proposed publication for review 13 by the committee members, correct? 14 A. Yes. 15 Q. And he wanted them to keep it 16 confidential, correct? 17 A. Yes. 18 Q. Let me see that for just a second. 19 A. (Witness complies) 20 Q. In fact, he said, "With the request 21 that you treat with it with the utmost 22 confidence and make it available to no one 23 outside your organization, I'm enclosing what 24 purports to be part one of a report by the EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 67 1 Saranac Laboratory entitled, 'Asbestos 2 Pneumoconiosis.'" That's what the opening 3 paragraph says, correct? 4 A. Yes. 5 Q. In his correspondence that we've 6 looked at previously from November 12, 1948, he 7 states that after talking about the unanimous 8 opinion to omit references to cancer and 9 tumors - 10 A. What document are you looking at? 11 Q. The November 12, 1948, the one we 12 marked previously, on the back side he says 13 that "We have retrieved all the copies of this 14 tentative and confidential report except the 15 one we sent you." And he's writing to Mr. 16 Kelly who is the executive vice president of 17 Abex, correct? 18 A. That's right, yes. 19 Q. "Which I note Dr. Hamlin would like to 20 keep. I wish, however, you would prevail upon 21 him to return it to us. Everyone felt that it 22 would be most unwise to have any copies of the 23 draft report outstanding if the final report is 24 to be different in any substantial respect. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 68 1 The feeling of the representatives of the 2 various companies was very emphatic on this 3 point." Correct? 4 MR. RADCLIFFE: Object to form. 5 A. That's what Vandiver Brown wrote to 6 Mr. Kelly at Abex, yes. 7 Q. He also sent a copy of the letter to 8 Dr. Hamlin, correct? 9 A. I don't see that. 10 Q. "I'm enclosing an extra copy of this 11 letter in case you wish to send it to Dr. 12 Hamlin"? 13 A. Okay, yeah, last sentence. I'm sorry. 14 Q. And then on November 16, 1948, a 15 document we'll mark as Exhibit 13, then Mr. 16 Kelly acknowledges receiving that letter and 17 says, "Since we have the only stray copy of the 18 tentative report, I am asking Dr. Hamlin to 19 return it directly to you." 20 A. Yes, I'm familiar with that document. 21 (Exhibit No. 13, Letter to Vandiver 22 Brown, 11.16.48 so marked) 23 Q. Okay. This report was ultimately 24 published in 1951, correct? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 69 1 A. Yes. 2 Q. And at the time it was published, 3 there was no reference to cancer in the report, 4 correct? 5 MR. RADCLIFFE: Objection to form. 6 A. That's right. 7 Q. Let me ask you: Have you ever seen - 8 this is a document, it says copy. It's 9 confidential. It's dated March 19, 1949. It 10 says Saranac report. It's from Kenneth W. 11 Smith, M.D., and the only recipient that's not 12 Xed out, if there was any others, George K. 13 Foster. And it's a report on experimental 14 asbestosis has been reviewed, and attached are 15 some summary of findings. I'm just curious as 16 to whether you have seen that document in the 17 files of Abex? 18 A. I don't recall seeing this document. 19 I have no knowledge as to who Foster or Smith 20 are either. 21 Q. After Mr. Hamlin the next medical 22 director of Abex was Dr. Blackwell, correct? 23 A. Yes. 24 Q. And Dr. Blackwell started in 1961. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 70 1 His name was Charles C. Blackwell, correct? 2 A. That's right. 3 Q. Now, the office of the medical 4 director was in Chicago, correct? 5 A. Yes, in the greater Chicago area. 6 Q. Dr. Blackwell was the medical director 7 of Abex from 1961 until 1976, correct? 8 A. Yes. 9 Q. Is Dr. Blackwell still alive? 10 A. Not to my knowledge. I mean, I don't 11 know. I really just don't know. Although, I 12 think - can I see our interrogatories 13 because 14 Q. It doesn't say anything. It just says 15 deceased for the other two, but it doesn't have 16 anything 17 A. I knew one of them was showing 18 deceased I thought it might have been 19 Blackwell. If it doesn't say in there, then my 20 answer stands. I'm not sure if he's alive or 21 not. 22 Q. Would you agree that Abex purchased 23 asbestos fiber from Johns Manville since 1950? 24 A. One of our suppliers was Johns EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 71 1 Manville, yes. 2 Q. You also were supplied from Lake 3 Asbestos in Quebec, Canada, correct? 4 A. Yes. 5 Q. Bell Asbestos Mines in Quebec? 6 A. Yes, sir. 7 Q. Asbestos Corporation in Quebec? 8 A. Yes, sir. 9 Q. The GAF Corporation in Vermont? 10 A. Yes. 11 Q. And the Vermont Asbestos Group? 12 A. Yes. 13 Q. I'm going to show you a letter -- it's 14 actually two letters. The first one is from 15 Anthony Lanza to Mr. Arthur Fiske of the legal 16 department of Johns Manville. It's dated March 17 5, 1952. The second is his response dated 18 February 20, 1952. 19 Actually, the first one was February 20 20, 1952, and the response is March 5, 1952, 21 both deal with the labelling of asbestos fiber. 22 MR. RADCLIFFE: Object to form. 23 Q. My first question is whether you've 24 seen either one of those letters prior to EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 72 1 today? 2 MR. RADCLIFFE: Object to form. 3 A. No. You showed them to me just before 4 the deposition started, but I hadn't seen them 5 prior to that. 6 Q. What those letters indicate is that 7 Johns Manville was consulting with Dr. Lanza 8 with regard to cautionary language to put on 9 its bags of asbestos, correct? 10 MR. RADCLIFFE: Object to form. 11 A. I don't know. I mean, these weren't 12 Abex documents. I've not seen them before. 13 You're asking me for an interpretation of a 14 letter from a physician to a corporate guy. I 15 don't know. 16 Q. I want you to assume that this letter 17 from Arthur Fiske, who is with the legal 18 department of Johns Manville, asks -- tells Dr. 19 Lanza that "It is our intention to label our 20 bags containing asbestos fiber using the 21 following: Caution, asbestos fiber. 22 Inhalation of asbestos fiber over long periods 23 may be harmful. The materials should be used 24 as not to create dust or if this is not EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 73 1 possible, employees should be equipped with 2 adequate protective devices." 3 With that assumption, can you tell me 4 when Abex first realized that there were 5 cautionary labels on the bags of asbestos that 6 it was being provided from those companies that 7 we discussed earlier? 8 MR. RADCLIFFE: Object to form. 9 A. Well, irrespective of those letters, 10 based on my personal knowledge, I believe that 11 we started to see some bags of asbestos appear 12 at the Winchester plant in the very early 1970s 13 with some labels on them like that similar to 14 that. Whether they were exactly the same as 15 that, I couldn't say for sure. 16 Q. Have you done any investigation to 17 determine when Johns Manville, GAF or these 18 other companies first put warnings on their 19 bags -- not warnings, cautionary language on 20 their bags of asbestos? 21 A. I haven't found any documents that 22 would support a firm position. I can tell you 23 from my personal knowledge having been at the 24 Winchester plant, I started to see them on some EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 74 1 bags in the early 1970s. 2 Q. And by that statement you're saying 3 some bags had cautionary language and other 4 bags didn't? 5 A. Well, from some suppliers because we 6 would have comingling of some fiber that was 7 procured from Johns Manville, other from Bell, 8 other from Lake, other from GAF, and I don't 9 remember if the warnings were on one brand of 10 asbestos, if you will, or another. 11 Q. And the reason why I call them 12 cautionary language is because the word 13 "warning" wasn't used on those labels, correct? 14 A. Okay. Again, I don't recall the exact 15 wording, but materially that was the warning 16 that I recall. Whether it was called a warning 17 or cautionary label, I can't tell you. 18 Q. Would you agree with me that 19 cautionary labels were on the bags of asbestos 20 fibers received from Abex before Abex ever put 21 any cautionary labels on asbestos products that 22 it manufactured? 23 A. I see the time very close and somewhat 24 overlapping. My first visits to Winchester EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 75 1 were in the 19 -- very early 1970s, and I 2 remember seeing a hand rubber stamp going on 3 boxes of Abex product that had a warning or 4 cautionary statement and that was about the 5 same time as I recall seeing some bags of 6 asbestos containing that warning or similar 7 warning. 8 Q. You just said that you saw them in the 9 early '70s. I'm looking at your sworn Answers 10 to Interrogatories in this case, and you stated 11 that "Due to concerns of the use of asbestos 12 and regulatory action for some products that 13 contained asbestos, starting in the early to 14 mid 1970s Abex commenced the placement of 15 warning labels on those friction materials that 16 contained asbestos." That's what you wrote, 17 correct? 18 A. Yeah. And I guess the only difference 19 from what I'm saying today is today I'm saying 20 early 1970s, and there I'm saying early to mid. 21 Q. You would agree with me that you have 22 no documentation that pinpoints the exact point 23 in time when Abex first placed any cautionary 24 language on any product that it sold that EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 76 1 contained asbestos? 2 A. I have not come across a document that 3 pinpoints the specific date that it started, 4 but I can tell you from my own personal 5 knowledge and being in that factory and when I 6 was certainly in the quality assurance area, 7 part of our responsibility was to put warnings 8 on the boxes so............ 9 Q. You continue to use the terminology 10 "warnings." You would agree with me that the 11 language that was put on the packages of 12 materials that were manufactured by Abex simply 13 stated "caution, contains asbestos fiber," 14 correct? 15 A. Yes. In my definition of that is a 16 warning. 17 Q. Okay. It doesn't contain the word 18 "warning"? 19 A. The word "warning," no, it does not. 20 Q. Is also doesn't contain any 21 information with regard to cancer, correct? 22 A. That's right. 23 MR. RADCLIFFE: Object to form. 24 Q. And, in fact, while it states that the EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 77 1 product contains asbestos fibers, it tells the 2 user to avoid creating dust, correct? 3 A. Yes. 4 Q. But it doesn't tell the user how to 5 avoid creating dust, correct ? 6 A. That's correct. 7 Q. It doesn't tell the user what to do if 8 dust is created? 9 A. No, it doesn't. 10 Q. It says "breathing asbestos dust may 11 cause serious bodily harm." Correct? 12 A. Yes. 13 Q. But it does not define what that 14 bodily harm is, correct? 15 A. That's right. 16 Q. To the best of your knowledge, this 17 cautionary language which was put on your 18 product sometime starting in early to mid 19 1970s, that warning -- that language was never 20 changed throughout the time up until 1987 when 21 Abex stopped selling asbestos-containing brake 22 linings , correct? 23 A. To my knowledge we never changed that 24 warning statement. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 78 1 MR. GEORGE: Do you want to take a 2 break? 3 THE WITNESS: Yeah, I think that would 4 be great, sure. 5 MR. GEORGE: Why don't we take a 6 break. 7 THE VIDEOGRAPHER: The time is now 8 12:31 p.m. We're going off the record. 9 (Recess 12:31 p.m. to 12:40 p.m.) 10 THE VIDEOGRAPHER: The time is now 11 12:41 p.m. We are back on the record. 12 BY MR. GEORGE: 13 Q. We were talking about cautionary 14 labels that were placed on Abex products in the 15 early to mid '70s. I want to go back in time a 16 lit bit. I want to show you what we'll mark as 17 Exhibit 14, which is a letter from D.K. Rennie, 18 R-E-N-N-I-E, to Dr. C. C. Blackwell, medical 19 director, American Brake Shoe Company, dated 20 October 8, 1964. 21 (Exhibit No. 14, Letter to C.C. 22 Blackwell, 10.8.64 so marked) 23 Q. First of all, can you tell me who D.K. 24 Rennie is? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 79 1 A. I knew Don Rennie in a couple of 2 capacities. For a while he was the corporate 3 VP for human resources, and for a while he was 4 I believe the VP of operations for the friction 5 division of Abex. 6 Q. And you've seen this letter before, 7 correct? 8 A. I believe I have. 9 Q. This is another document that has that 10 SPNY Bates numbering on the bottom, correct? 11 A. Yes. 12 Q. Now, this is a letter of October 8, 13 1964, wherein Mr. Rennie is sending to Dr. 14 Blackwell an article from The Pontiac Press 15 that was brought to his attention, correct? 16 A. Yes. 17 Q. And the attached article is entitled 18 Medical Specialists Suspect Asbestos As a Cause 19 of Cancer. Correct? 20 A. Yes. 21 Q. It says that "Medical specialists 22 pointed a strong finger of suspicion today at 23 asbestos as not as a cause not only of lung 24 cancer but also of another extremely rare form EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 80 1 of fatal human cancer. This cancer known as 2 mesothelioma involves the lining of the 3 abdominal and chest cavities," is what the 4 article says, correct? 5 A. Yes. 6 Q. It says after -- the second paragraph 7 after "marked increase" says, "Now they also 8 find a markedly high incidence among such 9 workers of mesothelioma, a cancer so rare it is 10 not classed separately as a cause of death in 11 international classification of diseases." 12 Correct? 13 A. Yes. 14 Q. At the end of the column entitled High 15 Incidence it says, "The cancers may not appear 16 until 20 to 30 years after asbestos dust is 17 inhaled or swallowed they said," correct? 18 A. Yes. 19 Q. The "they" that they're referring to 20 is Dr. Selikoff and Dr. Churg at the Mount 21 Sinai Hospital? 22 A. I haven't read this article, so I 23 can't say -- okay, I do see Selikoff's name 24 referenced here, yes. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 81 1 Q. The last column says, "Dr. Hammond 2 said one worry is whether a few or even a 3 single past exposure might set the stage for 4 cancer. He said this is a matter calling for 5 more research. Taking precautions to avoid 6 breathing in asbestos dust is a main protection 7 for industrial workers, he and Dr. Selikoff 8 said." That's what that Pontiac Press article 9 that Mr. Rennie was sending to Dr. Blackwell, 10 correct? 11 A. That's right. And he was sending it 12 with regard to licensees and presumably having 13 to give him an alert that maybe we should be 14 doing more outside the United States. That's 15 my take on that letter. 16 MR. GEORGE: Movie to strike as 17 nonresponsive everything after yes. 18 Q. There was a response to that letter by 19 Dr. Blackwell, correct, dated October 13, 1964? 20 MR. GEORGE: And we'll mark it as 21 Exhibit 15. 22 (Exhibit No. 15, Letter to William 23 Veenstre, 10.13.64 so marked) 24 Q. That's a letter you've seen before, EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 82 1 correct? 2 A. No, I don't recall seeing this one. 3 Wait, let me read it first. This letter, I 4 have seen this before, and I don't understand 5 this to have any relation to the previous 6 letters that you've shown me or articles. 7 Q. The article that Mr. Rennie said -- he 8 sent it to him October 8, correct, and talked 9 about mesothelioma. And this is a letter that 10 Dr. Blackwell is sending to - 11 A. Purchasing department. 12 Q. About five days later in 1964, 13 correct? 14 A. Right. 15 Q. And one of the people that's listed on 16 top is D.K. Rennie -- actually D.R. Rennie? 17 A. Somebody wrote that in, but it's not 18 part of the letter. And nor do I see that Dr. 19 Blackwell has officially carbon copied Mr. 20 Rennie. So I have no way to assure that this 21 has anything to do with the Pontiac Press 22 article. 23 Q. Other than it says in the third full 24 sentence, "It is interesting that Don Rennie EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 83 1 also wrote to me at about the same time you did 2 concerning this particular item," which was a 3 clipping concerning asbestosis and 4 mesothelioma, correct? 5 A. It doesn't say that. 6 Q. Let's just read. For the record, it 7 says, "Dear Bill, thank you for your note of 8 October 7, 1964," which predated Mr. Rennie's 9 by a day, correct? 10 A. Yes. 11 Q. "And for the clipping concerning 12 asbestosis. The problem of mesotheliomas in 13 individuals exposed to asbestos is pretty well 14 known in industry. It is interesting that Don 15 Rennie also wrote to me at about the same time 16 you did concerning this particular item." 17 That's what it's written, correct? 18 A. Yes. 19 Q. It says, "Up until the present time, 20 based on our industrial hygiene surveys, we 21 have not had any great concern about asbestos 22 exposure among our employees, but there is 23 certainly the need for continued vigilance." 24 That's what he wrote, correct? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 84 1 A. Yes . 2 Q. One o f th e re as ons why the plant 3 pe rs onne l, t he y di dn't h ave any great concern 4 wa s bec a use th er e were i ndus tr ia l hygiene 5 me as ure s tha t we re emp loyed in t he plant 6 in cl udi n g ex ha us t vent il atio n, c orrect? 7 A. Wha t' s yo ur q ue stio n? 8 Q. My qu es ti on i s: On e of the reasons 9 why Dr. Blac kw el l said t hey di dn 't have any 10 gr ea t c o ncern ab ou t as be stos e xp osure among 11 th ei r e mploy ee s wa s th e fact t ha t there were 12 in du str i al hyg ie ne mea su res th at were in place 13 at t he p lant f or p eopl e usin g as bestos? 14 A. Yes , th at was o ne. 15 MR. RAD CL IFFE : Obj ec t to form. 16 A. One f ac to r. 17 Q. So th ey h ad e xh aust v en tilation that 18 re du ced the amou nt of du st t ha t these people 19 we re exp osed t o, c orre ct ? 20 A. Yes . I t was en caps ul at ed in a resin. 21 I me an, ther e we re numer ous fa ct ors, but that 22 wa s one fact or . I f th at was you r question, 23 ye s, tha t wa s on e fact or . 24 Q. Now s ev en day s late r on October 20, EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 85 1 1964, there was another letter from Dr. 2 Blackwell to Mr. R.B. Parker management 3 personnel, New York office. 4 MR. GEORGE: We'll mark this as 5 Exhibit 16. 6 (Exhibit No. 16, Letter to R.B. 7 Parker, 10.20.64 so marked) 8 Q. Is that a document that you've seen 9 before? 10 A. If you let me see it, I'll tell you. 11 Yes, I believe I have seen this before. 12 Q. Who is Mr. Parker? 13 A. I never knew a Mr. Parker. 14 Q. Okay. But you did have a New York 15 office - 16 A. We did. 17 Q. -- at Abex? It says in the last 18 sentence of the first paragraph, "Management 19 has been aware of the occupational hazards 20 associated with this material." And they're 21 talking about asbestos, correct? 22 A. Yes. 23 Q. "In the April 6, 1964 issue of the 24 Journal of American Medical Association, EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 86 1 there's an article by I.J. Selikoff, M.D., J. 2 Churg, M.D., E.C. Hammond, D.Sc. on 'asbestos 3 exposure and neoplasia.' It is this same group 4 and the findings described in this article 5 which have prompted numerous newspaper articles 6 which so many of us are reading." That's what 7 Dr. Blackwell wrote, correct? 8 A. Yes. 9 Q. Basically what he's saying is these 10 news articles are all based on the fact that 11 scientists at Mount Sinai have found an 12 increased risk of mesothelioma among workers 13 who worked with asbestos? 14 A. It doesn't say that in this letter 15 but............ 16 Q. Well, it says, "in the select group of 17 workers," the first sentence of the third 18 paragraph? 19 A. I don't know what select group of 20 workers -- I mean, I'm just -- I'm really 21 uncomfortable. I really feel like you're 22 taking things, a sentence here and a sentence 23 there and trying to paint a picture that suits 24 you, and you're not giving me a chance to read EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 87 1 th e do cume nt or c omment on i t. 2 Q . T ake yo u r t ime to r ea 3 A . H ow abo u t I ju st re ad 4 Q . T ake yo u r t ime an d re 5 yo urse lf, and I' l l a sk you q ue 6 MR. GEORGE: We can go off the record 7 for a second. 8 THE VIDEOGRAPHER: The time is 10:50 9 a.m. Going off record. 10 (Recess 12:50 p.m. to 12:52 p.m.) 11 THE VIDEOGRAPHER: The time 12:52 p.m. 12 Back on the record. 13 BY MR. GEORGE: 14 Q. You would agree with me that what this 15 letter is addressing is the fact that these 16 researchers from Mount Sinai, including Dr. 17 Selikoff and others, had determined that there 18 was an increased risk of cancer of the lung and 19 the pleura in workers exposed to asbestos? 20 A. I would agree that Dr. Selikoff's 21 group said essentially what you're saying for 22 people that were exposed for long periods of 23 time. Frequent and prolonged exposures is the 24 terminology that's used in this letter. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 88 1 Q. Okay. And Dr. Blackwell's comment on 2 that was, "Despite the fact of this publicity, 3 I do not feel that there will be further and/or 4 sufficient publicity on the basis of present 5 studies on asbestos as it relates to human 6 health to the point where it would affect the 7 asbestos brake lining exposure of the general 8 populous." That's what he wrote, correct? 9 A. That's right. 10 Q. Now, as of this time, October 1964, 11 Abex hasn't put any cautionary language on any 12 product that it's selling that contained 13 asbestos, correct? 14 A. I believe that to be correct, yes. 15 Q. In fact, at this point in time, the 16 mid 1960s, at least as of 1964, Abex was only 17 selling asbestos brake linings and asbestos 18 clutch face linings because they hadn't yet 19 developed any nonasbestos product? 20 A. That's right. 21 Q. I want to show you what I'll mark as 22 Exhibit 17. 23 (Exhibit No. 17, Memo to J.D. 24 Henderson, 3.25.68 so marked) EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 89 1 Q. Which is a letter dated March 25, 2 1968, and it's from G.M. Theodore to J.D. 3 Henderson, and the subject is Liberty Mutual 4 Safety Management Institute. It's an 5 interoffice correspondence of the Abex 6 Corporation. 7 A. Specifically, it's the Denison 8 Hydraulics Division of Abex. It has nothing to 9 do with the brake business of Abex. 10 Q. Well, you would agree this is a 11 business record of the Abex Corporation? 12 A. Yes, but not the friction business. 13 Q. And Mr. Theodore, do you know who he 14 was? 15 A. Never heard of him. 16 Q. Mr. Theodore, according to this 17 document, apparently attended a session that 18 was put on by the Liberty Mutual Safety 19 Management Institute, correct? 20 A. That's what it says. 21 Q. And one of the things he learned, one 22 of the things that was discussed was product 23 liability in relation to large lawsuits for 24 improper warnings against hazards on products EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 90 1 produced? 2 MR. RADCLIFFE: Object to form. 3 Q. That's what he wrote, correct? 4 MR. RADCLIFFE: Object to form. 5 A. "Product liability was also discussed 6 in relation to improper warnings." 7 Q. And as of March 1968, at least some 8 members of the Abex Corporation understood that 9 there was the possibility of product liability 10 if there were improper warnings against hazards 11 that were put on product produced? 12 MR. RADCLIFFE: Object to form. 13 A. Your question, please? 14 Q. My question is: You would agree with 15 me that as of March 25, 1968, there were 16 members of the Abex Corporation that were aware 17 that there was probably product liability for 18 improper warnings against hazards on products 19 produced? 20 MR. RADCLIFFE: Object to form. 21 A. I would agree in the context of the 22 Denison Division of Abex. I mean, Abex was a 23 big corporation, and it had 50 or 60 factories, 24 had four divisions scattered all over the EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 91 1 world. And because one guy at o ne division 2 totally unrelated to what we've been talking 3 about today went to a conference and wrote a 4 memo I think is totally out of c ontext. 5 Q. Is it your testimony as the corporate 6 representative for Abex that the only 7 individual in the Abex Corporati on that knew 8 that there was potential product liability when 9 improper warnings were placed on products was 10 Mr. Theodore? 11 MR. RADCLIFFE: Object to form. 12 A. No. 13 Q. I want to show you what we'll mark as 14 Exhibit 18. 15 (Exhibit No. 18, Report On FMSI 16 Asbestos Study Committee Activit ies so marked) 17 Q. This is a report on the FMSI Asbestos 18 Study Committee activities that' s signed by 19 I.H. Weaver, chairman. 20 A. Mr. Weaver wasn't an Ab ex person. 21 Q. Understood. Mr. Weaver was the 22 president of Raybestos-Manhattan , correct? 23 A. I don't know - 24 MR. RADCLIFFE: Object to form. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 92 1 A. -- what his job was. I knew he was on 2 the Asbestos Study Committee. 3 Q. First of all, we talked about it 4 earlier that Abex was a member of an 5 organization called the Friction Materials 6 Standard Institute, correct? 7 A. That's right. 8 Q. Now, the predecessor to that 9 organization was the -- well, strike that. 10 According to your interrogatories, 11 Abex was a member of the Friction Materials 12 Standard Institute from 1949 to 1994, correct? 13 A. Yes. 14 Q. And the Friction Materials Standard 15 Institute was composed of entities that made 16 asbestos friction materials? 17 A. They were composed of entities that 18 made brake lining. 19 Q. And for those entities prior to 1970, 20 the majority of the brake linings they were 21 manufacturing contained asbestos, correct? 22 A. Yes. 23 MR. RADCLIFFE: Object to form. 24 Q. In fact, as of the date of this EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 93 1 meeting, September 15, 1971, the overwhelming 2 majority of friction materials sold by these 3 organizations contained asbestos, correct? 4 A. Yes. 5 Q. Okay. And, in fact, the reason why 6 they formed an Asbestos Study Committee was 7 because the State of Illinois had indicated 8 that it was going to ban asbestos from brake 9 linings, correct? 10 A. That's true until they realized they 11 still had to stop cars, and there was no way to 12 do that. 13 Q. In July of 1971, with the assigned 14 purpose to review and comment on rules and 15 regulations promulgated by state and federal 16 governments concerning asbestos and its 17 applications, the FMSI formed the Asbestos 18 Study Committee, correct? 19 A. Yes, that's right. 20 Q. One of the avowed purposes of the 21 committee was the distribution and circulation 22 of literature on asbestos and health subjects, 23 correct? 24 A. That was one of them, yes. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 94 1 Q. One of the foun ding membe rs o f th e 2 Asbe sto s Stu dy C ommittee was Abe x? 3 MR. RAD CLIFFE: Obj ect to f orm. 4 A. We were a membe r. Whet he r fo un di ng 5 memb er, I ca n't say. 6 Q. The fir st commi ttee mee ti ng w as h el 7 on S ept ember 15, 1971, c orre ct? 8 A. Yes . 9 Q. And Abe x was at tha t fi rs t me et in g? 10 A. Yes . 11 Q. Oka y. If you t urn to t he t hi rd 12 page - 13 A. (Witness complies) 14 Q. -- it states at the very bottom that 15 one - 16 A. No. 8 is that? 17 Q. Yes. "One of the activities of this 18 committee was to follow as closely as possible 19 medical and occupational health research 20 concerning asbestos and asbestos-related 21 diseases and determine whether FMSI or its 22 member companies should help sponsor or 23 otherwise support work of the nature." 24 Correct? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 95 1 A. Yes, there's a listing here, and that 2 was No. 8 of that list. 3 Q. I'll take that. I want to show you 4 what we'll mark as Exhibit 20, which is a 5 letter from Charles Blackwell to Milton Pogsin 6 dated August 13, 1971. 7 (Exhibit No. 19, Exhibit Number 8 Skipped - No Exhibit Marked ) 9 (Exhibit No. 20, Letter to Milton 10 Pogsin, 8.13.71 so marked) 11 Q. That's a letter that you've been shown 12 before, correct? 13 A. Yes, I believe I have seen this 14 before. 15 Q. And this is some seven years after the 16 correspondence in October -- well, almost seven 17 years since the correspondence in October 1964 18 where Dr. Blackwell had addressed the initial 19 research of Dr. Selikoff and the scientists at 20 Mount Sinai, correct? 21 A. Yes. 22 Q. Seven years later he says that "Dr. 23 Irving Selikoff is well-intentioned, but I 24 personally fear that he is a panic or fear EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 96 1 peddler so to speak." That's what he wrote, 2 correct? 3 A. Yes. 4 Q. And he said, "There is most certainly 5 some or a lot of merit to some of that which he 6 promotes, but a lot of physicians object to the 7 manner in which he does it, by means of fear 8 and a very aggressive policy and especially 9 when he admits that neither he nor the 10 engineers have the solution to the problems 11 attended to or with such utilization of 12 asbestos." 13 That's what he wrote, correct? 14 A. Yes. 15 Q. He talked about meeting with some 16 union officials. He showed them movies. He 17 reportedly left a 45-minute technical medical 18 tape on asbestos with the union officials that 19 they could study, and Dr. Blackwell's comment 20 was, "Can you imagine his misdirected efforts, 21 such nerve." 22 That's what he wrote, correct? 23 A. Yes. 24 Q. As of the date, August 13, 1971, Abex EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 97 1 still had not placed any cautionary language on 2 any of its products of asbestos-containing 3 material, correct? 4 MR. RADCLIFFE: Object to form. 5 A. I don't know if in August 13 of 1971 6 there was a warning label on or not. It was 7 about that time. I said to you earlier it was 8 the early 1970s, '71, '72. This is the third 9 quarter of '71. Possibly there were warnings 10 on it. Also, I'd like to point out that Dr. 11 Blackwell hadn't signed this letter, and that 12 it's simply a response to Milton who sent him 13 an article which Dr. Selikoff is expounding 14 upon. 15 Q. We've looked at other correspondence 16 that was not signed by Dr. Blackwell? 17 A. Yeah, I should have pointed those out 18 because many of them are not signed. 19 Q. You're not maintaining, are you, that 20 this correspondence is not a business record of 21 Abex, are you? 22 A. I'm not saying -- I'm saying I'm not 23 sure it was ever sent. 24 Q. But it contains the SPNY Bates stamp EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 98 1 numbering on the bottom, correct? 2 A. Well, that's you're telling me that 3 means, and I'll accept that. But all I'm 4 saying is I get really uncomfortable with 5 unsigned memos because I think oftentimes 6 letters are written and not sent, and they may 7 still be in the file somewhere. 8 Q. Is it your position that the previous 9 letter of October 8, 1964, which also has the 10 Bates stamp numbering and indicates - 11 A. Can I see it again? 12 Q. -- from Mr. Rennie to Mr. Blackwell, 13 but is not signed was not a business record of 14 Abex? 15 A. I'm saying it's an unsigned copy of a 16 letter. 17 Q. As the corporate representative for 18 Abex, it's not your testimony, is it, that this 19 letter is not a business record of Abex 20 Corporation that's been kept in their 21 repository? 22 A. I don't know. 23 Q. Similarly, the other letter that we 24 looked at from October 20, 1964, again, not EPPLEY COURT REPORTING, LLC 508.478.9795 ert Indelicato Volume I September 26, 2011 99 1 signed, but it contains the Bates stamp 2 numbering on the bottom, is it your position 3 that this document was not found within the 4 business records of Abex? 5 A. I'm not saying it wasn't found in the 6 business records. I'm not saying -- I'm saying 7 I don't know for sure that it was ever sent to 8 anyone; that it could have been a draft. It 9 could have wound up in a file. It could have 10 never been communicated to anybody. 11 Q. Would you agree with me that the 12 documents that are contained within the 13 document repository at Abex were documents that 14 were kept by Abex because they were part of 15 their business records? 16 MR. RADCLIFFE: Object to form. 17 A. I can't answer that. I don't know. 18 Q. As the corporate representative, do 19 you have any knowledge of the origin of the 20 document depository? 21 A. The origin of it? 22 Q. Sure. How did those documents get 23 collected? 24 A. A bunch of lawyers came in and EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 100 1 gathered them up, and that was, you know, the 2 business was sold. Many of the records stayed 3 with the business purchaser, you know, and 4 records were at some point gathered in one 5 place and put in Brooklyn. 6 Q. Have you ever gone to Brooklyn to look 7 them? 8 A. No, I haven't. 9 Q. You can't tell whether those documents 10 have been indicated in some manner so that in 11 subsequent proceedings we can be assured that 12 they're documents that came from the 13 repository? 14 MR. RADCLIFFE: Object to form. 15 A. I'm sorry, what's your question? 16 Q. Since you've never been to the 17 depository - 18 A. Right. 19 Q. -- repository, you've never seen 20 documents as they were taken out of the 21 repository? 22 A. That's right. 23 Q. You don't know if they're marked in 24 any manner so that in substance -- EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 101 1 A. I don't know the protocol in terms of 2 the markings. You're telling me that's the 3 Bates number. I'll willing to accept that, 4 but, I mean, I don't know that. I didn't put 5 the marking on it. 6 Q. Have you read the deposition testimony 7 of any of the other designated corporate 8 representatives of Abex? 9 A. No. 10 Q. And you know there have been other 11 designated corporate representatives prior to 12 you? 13 A. Sure. There were people that, you 14 know, I worked for that, unfortunately, passed 15 on, and you're just asking me to make a lot of 16 assumptions, and my knowledge of being a good 17 witness is not to assume so............ 18 Q. Well, is it your position as the 19 corporate representative of Abex that Abex was 20 unaware of Dr. Selikoff's research in 1964? 21 A. No. We knew what Dr. Selikoff was 22 publishing. We were aware of it. We certainly 23 were concerned about what he was saying and how 24 oftentimes it was misquoted because it was my EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 102 1 understanding back then, and it still is today, 2 that a lot of Selikoff's work had to do with 3 people in the asbestos fiber business and not 4 necessarily brake mechanics. 5 Yet all of his findings seem to get 6 spun in a way that made it sound like it all 7 related to automotive brakes. And that wasn't 8 at all the case from my knowledge. 9 Q. Do you agree with the correspondence 10 from Dr. Blackwell in 1964 that mesothelioma as 11 a disease was -- the problem mesothelioma in 12 individuals exposed to asbestos was pretty well 13 known in the industry in 1964? 14 MR. RADCLIFFE: Object to form. 15 A. You're asking for my medical opinion? 16 Q. No. I'm asking as a corporate 17 representative of Abex, do you agree that Abex 18 had knowledge of mesothelioma in 1964? 19 MR. RADCLIFFE: Object to form. 20 A. I don't know if we had knowledge in 21 1964. 22 Q. Yet, you do concede that you are - 23 you were aware of Dr. Selikoff's publications? 24 MR. RADCLIFFE: Object to form. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 103 1 A. Yes. 2 Q. I'm going to show you what we'll mark 3 as Exhibit 21. 4 (Exhibit No. 21, Letter to D.K. 5 Rennie, 5.10.72 so marked) 6 Q. This is a letter from Dr. Blackwell 7 copying E.R. Feierabend to Mr. D.K. Rennie 8 dated May 10, 1972. Was this a document that 9 you've seen before? 10 A. I'm not sure. Can I take a minute and 11 read it? 12 Q. Sure. 13 THE WITNESS: Would you like to go off 14 the record? 15 THE VIDEOGRAPHER: The time is 1:09 16 p.m. Going off record. 17 (Recess 1:09 p.m. to 1:10 p.m.) 18 THE VIDEOGRAPHER: The time is now 19 1:10 p.m. We are now back on the record. 20 BY MR. GEORGE: 21 Q. Having reviewed the document, is it a 22 document that you've seen before? 23 A. Yes, I believe I have seen this 24 before. EPPLEY COURT REPORTING, LLC 508.478.9795 ert Indelicato Volume I September 26, 2011 104 1 Q. Do you agree that this is a document 2 of Abex Corporation? 3 A. Yes. 4 Q. This is dated May 10, 1972, correct? 5 A. Yes, it is. 6 Q. And again Dr. Blackwell is talking 7 about Dr Selikoff, correct? 8 A. That's one of the topics, yeah. 9 Q. And this is some almost eight years 10 after Dr Selikoff first published on his 11 studies in 1964, correct? 12 A. That's right. 13 Q. And he says that, "Dr. Selikoff, 14 unfortunately, I feel has somewhat of a flare 15 for creating the sensational type of reporting 16 with the news media. Nevertheless, one cannot 17 ignore the statistics which he and his 18 associates have compiled dealing with 19 asbestos " 20 That's what he wrote, correct? 21 A. Yes. 22 Q. And specifically in the last paragraph 23 he talks about, "The mesothelioma, a particular 24 type of lung cancer, is generally speaking a EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 105 1 rarity except among those exposed to asbestos 2 where it is much more prevalent." Correct? 3 A. The last paragraph talks about the 4 smoking in the incidence of. 5 Q. Last paragraph on the first page? 6 A. Okay. I'm sorry. 7 Q. He says, does he not, "Mesothelioma, a 8 particular type of lung cancer, is, generally 9 speaking, a rarity except among those exposed 10 to asbestos where it is much more prevalent"? 11 A. Yes. 12 MR. RADCLIFFE: Object to form. 13 Q. Now this is in May of 1972. I want to 14 show you what I'll mark as Exhibit 22, minutes 15 of the Friction Material Standard Institute 16 Asbestos Study Committee dated June 20, 1972. 17 (Exhibit No. 22, Friction Material 18 Standard Institute Asbestos Study Committee 19 Minutes, 6.20.72 so marked) 20 Q. This is a document you've seen before, 21 correct? 22 A. Only at the beginning of today. I 23 haven't had a chance to study it. 24 Q. You agree that during this period of EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 106 1 ti me , Ju ne 2 0, 197 2, tha t Ab ex was a member of 2 th e Asb e stos Study C ommi tt ee ? 3 A. Yes . 4 Q. And this is a l et te r from M r. Drislane 5 wh o is t he e xecuti ve sec re ta ry of th e FMSI to 6 me mb ers of t he Asb es tos St udy Comm it tee, 7 co rr ect ? 8 A. Yes . It' s a tr an sm it tal le tter that 9 sa ys ba s ical ly her e' s th is I ke Wea ve r document, 10 an d he t hought it sh ould b e gi ven ou t to the 11 me mb ers so h ere it i s. 12 Q. Wha t it i s is c ompa ri ng t he industry 13 po si tion , th e NIOS H advi so ry c ommi tt ee 14 re comme n dati on and t he f in al OSHA st andard as 15 it a ppl i es t o the re gula ti on s on a sb estos, 16 co rr ect ? 17 A. Tha t appe ar s to b e wh at i t is, yes. 18 Q. And you a gr ee t ha t in Jun e 1972 is 19 ar ou nd t he t ime th at OSHA wa s formul ating its 20 as be sto s sta ndards ? 21 MR. RADCL IF FE: Obj ec t to f orm. 22 A. I d on't k no w wh en t he y we re 23 fo rmula t ing them. I don 't k no w ho w far back 24 th at go e s. I don' t know whe n it s ay s "final EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 107 1 OSHA standard," if that's what they're saying 2 is in place as of the writing date. So, I 3 mean, it's interesting, but I'm not sure what 4 it really tells me. 5 Q. Were you aware that prior to the 6 implementation of the OSHA standards that the 7 NIOSH advisory committee was recommending that 8 all asbestos-containing products should be 9 labeled and carry the words "cancer" and 10 "danger"? 11 MR. RADCLIFFE: Object to form. 12 A. I wasn't aware of that. 13 Q. Were you aware that the industry 14 position was that the words "cancer" and 15 "danger" should not be used on labels? 16 MR. RADCLIFFE: Object to form. 17 A. No, I didn't know, and I don't know 18 when you say -- when this says industry 19 position if it's talking about the asbestos 20 mining industry, the brake lining industry. I 21 just don't know what industry means in this 22 context. 23 Q. You would agree with me that Abex 24 never put the words "cancer" or "danger" on any EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 108 1 of its labels of asbestos friction materials? 2 MR. RADCLIFFE: Object to form. 3 A. All I can tell you is that the 4 document you showed me earlier that had the 5 warning label that I described is the one I 6 believe to be true and correct and carried on 7 through that period of time and was in effect 8 totally in agreement with what was published by 9 OSHA in the Federal Register in 1972 I believe. 10 Q. You would agree the cautionary 11 language that Abex put on its product did not 12 contain the words "cancer" or "danger"? 13 MR. RADCLIFFE: Object to form. 14 Q. Correct? 15 A. It had whatever the Federal Register 16 had, and it did not contain those words. 17 Q. I want to show you what we'll mark as 18 Exhibit 23. 19 (Exhibit No. 23, Minutes of the 20 Meeting of the Asbestos Study Committee, 21 8.17.72 so marked) 22 Q. Minutes of the Asbestos Study 23 Committee from Thursday, August 17, 1972. On 24 the face of that document it indicates, does it EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 109 1 not, that Abex was a member present during 2 these minutes? 3 A. Yes. 4 Q. I want you to turn to page three - 5 A. (Witness complies) 6 Q. -- which deals with labeling 7 practices? 8 A. Okay. 9 Q. It says that "It was reported during 10 this topic that there was a higher 11 concentrati on of asbestos in the air in the 12 inspection department than most members had 13 realized. One member indicated that when 14 pallets of brake linings were shipped, there 15 apparently is additional dust created during 16 transportation." 17 That 's what they wrote, correct? 18 MR. RADCLIF FE: Object to form. 19 MR. CARON: Object to form. 20 A. That 's what it says. 21 Q. And, in fac t, there have been 22 industrial hygiene surveys at Abex, correct? 23 A. Yes. 24 Q. And in the 1971 survey -- EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 110 1 A. Are we done with this document? 2 Q. Hold on to it for a minute -- they did 3 studies, air sampling of various workers at the 4 plant, correct? 5 A. That was common practice was to 6 inspect the entire factory, yes. 7 Q. And for those individuals that were 8 inspectors at the plant, they found measurable 9 amounts of asbestos dust, correct? 10 MR. RADCLIFFE: Object to form. 11 Q. I'm going to -- this is entitled - 12 I'll withdraw that and lay the foundation 13 first. 14 This is a document entitled Results of 15 U.S.P.H.S. Survey of American Brake Shoe, 16 Winchester, Virginia. 17 MR. GEORGE: We'll mark that Exhibit 18 24. 19 (Exhibit No. 24, Results of U.S.P.H.S. 20 Survey at American Brake Shoe, Winchester, 21 Virginia so marked) 22 Q. I ask you if you're familiar with that 23 document? 24 A. I haven't seen it before today. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 111 1 Q. I noticed in your responses to 2 interrogatories - 3 A. I don't dispute the study was done. 4 Q. Okay. Because in your responses to 5 interrogatories, when asked if there were any 6 studies or research concerning the health 7 consequences of inhaling asbestos, you state 8 that at least one area sampling analysis to 9 collect wear product particle during brake 10 operations prior to November '71. 11 Abex also cooperated with the United 12 States Public Health Survey in a study of wear 13 debris, and the results are now published by 14 the United States Public Health Service? 15 A. That has nothing to do with this. 16 That was wear debris which was the result of 17 dynamometer testing done at the Mahwah research 18 center. 19 Q. This survey was done by the United 20 States Public Health Service, correct? 21 A. Yes. 22 Q. And you're aware that the United 23 States Public Health Service did air sampling 24 at your plant in Winchester, Virginia? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 112 1 A. Yes. Abex, and specifically the 2 Winchester plant, cooperated with them so that 3 they could get their arms around what 4 industrial exposure was like. And, in fact, I 5 think there was a commendation or some such 6 commendation to Abex for their corporation. 7 And I believe that further that a lot 8 of this data was used to actually establish 9 standard deviation or error of the counters of 10 these asbestos fiber tests. 11 Q. When they found -- when they took air 12 sampling of workers whose sole job was to 13 inspect the final product, they found 14 measurable amounts of asbestos dust, correct? 15 MR. RADCLIFFE: Object to form. 16 A. Again, I know this study was done. I 17 haven't had a chance to see the results. And 18 I'll be happy to just scan this quickly. I see 19 a lot of different operations in the factory, 20 but so far -- there we go, inspectors. Yes, 21 there was some measurable fiber counts in the 22 inspection department. 23 Q. Those are not the individuals that 24 participated in any sort of drilling or cutting EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 113 1 of the a sbestos material, correct? 2 MR. RADCLIFFE: Object to form. 3 A. That's right. And I see numbers like 4 ranging from .1 to 1.9 fibers per cubic 5 centimet er. 6 You're aware that there was some Q. 7 concern at a point in time in the Winchester 8 plant th at some of their shipments were going 9 out with excess dust on them? 10 A. Yes. 11 MR. RADCLIFFE: Object to form. 12 A. I'm aware of that. 13 Q. Now going back to Exhibit 22, it 14 states t hat it was suggested that a 15 notifica tion be put into - 16 A. I'm sorry, Exhibit 22? Did I just 17 hand tha t back to you? 18 Q. The August - 19 A. I may have. That was the FMSI? 20 Q. Yes. 21 A. Yeah, I handed that back to you. 22 Sorry. 23 Q. This is still on page three. Going 24 down to the middle of the third paragraph -- EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 114 1 A. Okay. 2 Q. -- it says, "It was suggested that a 3 notification be put in boxes of brake linings 4 or clutch facings being shipped to customers. 5 A sa mple of the caut io n la bel 6 at ta ched to thes e mi nu te s. Mr 7 no w, Mr. Fei erab end wa s an emp 8 A. He was. 9 Q. It says , "M r. F ei erab 10 that this recommendation would not be accepted 11 warmly by many manufacturers." That's what 12 they report, correct? 13 A. That'1s right. 14 Q. And, in fact, Abex never put any type 15 of cautionary language in a sheet that was 16 placed in the boxes of brake linin gs or cl utch 17 facings? 18 A. No, we didn't. And Mr. Feierabend's 19 comment is based on the fact that we had some 20 customers who complained to us when we started 21 putting the warning labels on the outside of 22 the box. So he was taking it to the next step 23 of saying, If they complained about that, it's 24 highly likely they wouldn't be very happy about EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 115 1 a warning label in the box. 2 Q. One of the concerns of the FMSI is 3 that there are customers that are going to do 4 additional grinding and drilling of the brake 5 linings or clutch facings that create work 6 conditions where the concentration of asbestos 7 would be a hazard? 8 MR. RADCLIFFE: Object to form. 9 Q. That's what they wrote, correct? 10 MR. RADCLIFFE: Same objection. 11 A. I'm sorry, I don't see where -- is 12 that where Mr. Wagner objected to this 13 recommendation? It indicated -- it says, "It 14 is not indicated that this was specifically 15 required by the OSHA regulation. The concern 16 is due to the customers doing additional 17 grinding and drilling of the brake linings or 18 clutch facings create working conditions where 19 the concentration of asbestos would be a 20 hazard." Yes, that's what it says. 21 Q. What they were concerned about is that 22 the OSHA regulations exempted products that 23 were locked in, but these manufacturers knew 24 that there might be subsequent manipulation of EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 116 1 the products after it left their control? 2 MR. RADCLIFFE: Object to form. 3 A. Some of these manufacturers may have 4 believed that. Our position was, continues to 5 be, that we made every effort to try to deliver 6 our product to customers in a form that was 7 ready to install without any further machining. 8 Q. But you did know that there were 9 certain customers that were going to do 10 additional grinding or drilling of your brake 11 linings? 12 A. No, I didn't know that. I mean, we 13 talked earlier that some time years ago, 14 perhaps in the '60s, '50s, '40s some of that 15 went on. When I was at that company, that was 16 -- I wouldn't say never, but that certainly was 17 much more the exception than the rule. We 18 supplied to rebuilders and other sophisticated 19 users product that was ready to install. 20 Q. I'm going to show you what we'll mark 21 as Exhibit 25, and this is August 30, 1972, a 22 letter from Mr. Drislane to the Asbestos Study 23 Committee which contained an article entitled 24 Health Hazards of Asbestos. Is that a document EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 117 1 you've seen before? 2 (Exhibit No. 25, Letter to Asbestos 3 Study Committee, 8.30.72 so marked) 4 A. I don't believe I have. 5 Q. At the time that that document was 6 created in August 30, 1972, Abex was a member 7 of the Asbestos Study Committee, correct? 8 A. Yes. 9 Q. And what this attached article 10 indicates is that "By the late 1920s it was 11 clear from surveys made in this country and in 12 the United States that a high proportion of 13 older workers in the asbestos textile 14 industries were becoming severely disabled by a 15 specific type of chest disease due to the dust. 16 This was named asbestosis." 17 That's what was written in the 18 article, correct? 19 A. Right. 20 MR. RADCLIFFE: Object to form. 21 A. And it's based on reports from France 22 and England, and it's specific to the textile 23 industry. 24 Q. There's also two references to studies EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 118 1 in the United States, correct? 2 A. I don't see that. Again, you just 3 handed me this three-page document with 4 micro -- 5 Q. If you look at the last sentence of 6 the second paragraph where it says, "By the 7 late 1920s," after it says USA, there are two 8 numbers, correct? 9 A. I don't see it. If you can point it 10 out to me. "From surveys made in this country 11 and USA," yes. 12 Q. Okay. 13 A. But it says textile industries which 14 is a different kind of fiber. It's longer in 15 length, it's different chemistry. You know, 16 that's my comment. 17 Q. Well, you knew that -- I'm not done 18 with this. 19 You knew that in the 1940s that there 20 were incidence of asbestosis being reported in 21 factories that were making asbestos friction 22 products? 23 MR. RADCLIFFE: Object to form. 24 A. But in the 1940s a lot of asbestos EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 119 1 friction products, particularly in Europe, were 2 of a woven variety in which used a different 3 type of asbestos, both in physical nature and 4 chemical composition. 5 Q. In this article they indicate that - 6 under asbestos cancers? 7 A. Where are we? Okay. 8 Q. It says, "Some years after the 9 recognition of asbestosis as an important 10 problem in the asbestos textile industry, 11 articles began to appear in medical journals 12 suggesting an association between asbestosis 13 and lung cancer." Correct? 14 A. Yes. 15 Q. And then the last sentence of that 16 page says, "In the last 15 years there has been 17 much new information about the link between 18 exposure to asbestos and" - 19 A. I can't read it. 20 Q. -- "previously very rare type of 21 cancer affecting the surface of the lung and 22 gut. Reports of these mesotheliomas, as they 23 are called, has increased steeply over the last 24 ten years." EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 120 1 That's what they wrote, correct? 2 MR. RADCLIFFE: Object to form. 3 A. That's part of what they wrote, yes. 4 Q. "A feature of those tumors is the long 5 interval between first exposures to asbestos 6 dust and the detection of cancer. It is rarely 7 less than 20 years and maybe up to 50 or more 8 years." Correct? 9 A. Yes. 10 MR. RADCLIFFE: Object to form. 11 Q. Then under the Practical Implications 12 of the Biological Affect of Asbestos it says, 13 under Inhalation of Fiber, "For all practical 14 purposes, the risk from asbestos is limited to 15 inhalation of the fibers. Thus, control of the 16 airborne dust levels and their monitoring by 17 instruments which would measure the part of the 18 dust which can gain access to the deeper parts 19 of the lung is an essential step in the safe 20 use of all types of asbestos." 21 That's what they wrote, correct? 22 A. Yes, it says safe use is possible. 23 Q. That's something that Abex knew since 24 the 1940s, correct? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 121 1 A. I believe that to be the case, yes, 2 sir. 3 Q. If you go to the last page, the first 4 full paragraph, the first sentence says, "The 5 risk of developing mesotheliomas has a 6 different relation to fiber type, is probably 7 highest with crocidolite and lowest with 8 chrysotile." 9 A. Correct. 10 Q. As they wrote, right? 11 A. That's consistent with what I said 12 earlier. 13 Q. Let me show you what we'll mark as 14 Exhibit 26. 15 (Exhibit No. 26, Minutes of the 16 Meeting, Asbestos Study Committee, 2.16.73 so 17 marked) 18 Q. These are, again, minutes of the 19 Asbestos Study Committee, Friday, February 16, 20 1973. Those are minutes that indicate that 21 Abex was present, correct? 22 A. Yes. 23 Q. And that's Mr. Feierabend? 24 A. Feierabend, yes. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 122 1 Q. And in talking about labeling 2 practices in the last sentence, it says, "In 3 many" - 4 A. What page are you on? 5 Q. I'm on the first page. 6 A. Okay. 7 Q. It says, "In many drilling and 8 grinding operations without dust collectors, 9 committee members indicated that the 10 fiber 10 per CC ceiling concentration has been 11 exceeded." That's what they reported, correct? 12 A. Yes. 13 Q. You've also seen the speech that Mr. 14 Weaver gave to the Friction Materials Standard 15 Institute members on June 27, 1973? 16 A. Yes, I've seen this before. 17 MR. GEORGE: We'll mark that as 18 Exhibit 27. 19 (Exhibit No. 27, Asbestos and the 20 Friction Material Industry so marked) 21 Q. He said that that speech, did he not 22 -- looking at the last paragraph? 23 A. On the first page? 24 Q. On the first page, "Probably the EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 123 1 single most significant event that occurred 2 during the past year" -- and this is in 1973 3 -- "on the subject of asbestos hazards was 4 the meeting of the International Agency For 5 Research on Cancer that was held at Lyon, 6 France last October. This meeting was attended 7 by more than 130 medical researchers and 8 representatives of government, industry and 9 labor from virtually every major 10 asbestos-consuming or producing country in the 11 world." That's what he wrote, correct? 12 A. Yes. 13 MR. RADCLIFFE: Object to form. 14 Q. One of the first things that he 15 reported from this significant event was that 16 all major commercial types of asbestos can 17 cause cancer, correct? 18 MR. RADCLIFFE: Object to form. 19 A. I don't see that, I'm sorry. 20 Q. Number one? 21 A. Okay. Got you. 22 Q. He also says in number three on the 23 next page that "Evidence has been greatly 24 strengthened that all commercial types of EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 124 CD ts 1 as be st os exc t anthophyllite may be 2 re sp on si ble fo r mesothelioma (risk is greatest 3 wi th c ro cido li te , less with amosite and 4 appa re nt ly s ti ll less with chrysotile.)" 5 Co rr ec t? 6 MR. RAD CLIFFE: Object to form. 7 A. Yes. 8 Q. In then in the next paragraph it says, 9 "The most import ant item here is the 10 incrimination of all major types of asbestos as 11 causal agents fo r carcinoma, particularly 12 mesothelioma." 13 That's what he wrote, correct? 14 MR. RAD CLIF FE: Object to form 15 A. Yes. 16 Q. He said ost of other items only 17 confirm or subst ate previous conclusions 18 Since most of us sub stantial amounts of 19 chrysotile asbes tos in our formulations, 20 association of t his material with mesothelioma 21 and other types of cancer is of serious 22 concern." 23 That's what he wrote, correct? 24 MR. RAD CLIF FE: Object to form EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 125 1 A. Yes. 2 Q. And then if we go to page three, in 3 the last paragraph he says, "I know of no way 4 any of us can be absolutely sure that his 5 friction products, regardless of whether they 6 are sold as original equipment or on the 7 replacement market, will not be subjected to 8 additional operations or alterations in the 9 field that could result in excessive exposure 10 of workers or bystanders to airborne asbestos 11 fibers." 12 That's what he wrote, correct? 13 MR. RADCLIFFE: Object to form. 14 A. I believe that's his opinion, yes. 15 Q. In fact, on the next page, page four, 16 in the middle of the first paragraph he says 17 that, "Large volume replacement users present 18 major potential hazards, and even small job 19 shops can needlessly expose people to high 20 fiber concentrations if operations are 21 performed without controls." 22 That was his opinion, correct? 23 MR. RADCLIFFE: Object to form. 24 A. Yes, uh-huh. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 126 1 Q. What he was talking about is that 2 there are instances where these industries, 3 these large volume replacement users or even 4 small job shops, in working with the asbestos 5 friction materials without proper controls can 6 expose their workers to various amounts of 7 asbestos? 8 A. Based on his experience and the 9 experience of Johns Manville, not Abex. 10 MR. RADCLIFFE: Object to form. 11 Q. Then he says in the final part of page 12 four , last paragraph, "Keep in mind that NIOSH 13 and the OSHA Advisory Commit tee recommended a 14 much more severe label than the one we are 15 talking about. This subject was heatily 16 debated during the OSHA Advisory Committee 17 deliberation, and their final recommendation 18 called for the use of the word 'danger' instead 19 of 'caution' and specifically mentioned that 20 breathing asbestos caused cancer. Very 21 frankly, I was exceedingly surprised when the 22 final OSHA standard came out in favor of 23 considerably milder working. Now I am 24 perplexed that industry resists the OSHA label EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 127 1 requirement as vigorously as it does." 2 That's what he told the members of 3 FMSI in 1973, correct? 4 MR. RADCLIFFE: Object to form. 5 A. Yeah, but, I mean, he says "the 6 industry," and I'm not sure what he's talking 7 about because the time of this writing Abex was 8 already putting warnings on. So, you know, 9 it's -- again, it's his opinion. I'm sure that 10 it probably reflected the beliefs of his 11 company Johns Manville, but not Abex. 12 Q. Abex was putting cautionary language 13 on their products, correct? 14 A. We can get into a definitional 15 argument all day. I call it a warning. You 16 call it a cautionary lab el. And I'll jus 17 remind you that it was, in fact, in co nce 18 with what OSHA required in the Federal Re 19 in 1927. 20 Q. I understand that. But when we're 21 talking about a warning there, you can put the 22 actual word "warning" to make it a warning or 23 you can use cautionary language by using the 24 word "caution," correct? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 128 1 A. Correct. You can do either. 2 Q. What Abex chose to do was to use the 3 term "caution," correct? 4 A. What Abex chose to do was what the 5 federal government had required us to do. 6 Q. There was nothing in any of the 7 federal regulations that prevented Abex from 8 using more restrictive or more descriptive 9 language than what OSHA required, correct? 10 MR. RADCLIFFE: Object to form. 11 A. And you r qu es ti on is? 12 Q. The re's n ot hi ng in any of the deral 13 re gu lati on t hat sa id , Ab ex, hey, you c t -- 14 A. Tha t yo u ca n' t, of cour se not 15 Q. -- use th e wo rd "danger"? 16 MR. RAD CL IF FE : Same objection. 17 A. Of cour se n ot . 18 Q. The re w as n o fe deral regulation that 19 sa id , Ab ex, you ca n' t us e the word "cance r" in 20 yo ur lab el? 21 A. Of cour se n ot . 22 MR. RAD CL IF FE : Same objection. 23 MR. GEORGE: Th e next document I ' ll 24 ma rk as Exhi bit 28 _ - EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 129 1 (Exhibit No. 28, Letter to Asbestos 2 Study Committee, 12.26.73 so marked) 3 Q. -- is minutes of the Asbestos Study 4 Committee dated December 26, 1973. You would 5 agree with me that during this time period, 6 December of 1973, that Abex was a member of the 7 Asbestos Study Committee? 8 A. Yes. 9 Q. And if Abex received this document, 10 they would have received articles that talk 11 about asbestos, cancer and mesothelioma, 12 correct? 13 MR. RADCLIFFE: Object to form. 14 A. I don't know how to answer your 15 question. 16 Q. Well, it says here that, "Mr. Weaver, 17 the chairman of the committee has kept me 18 abreast on various activities in government, 19 industry and in the press concerning asbestos. 20 Because of the considerable amount of 21 literature, I am forwarding articles that your 22 chairman specifically suggested I send to 23 committee members." 24 A. Okay. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 130 1 Q. "These articles are the type of 2 asbestos and respiratory cancer in the asbestos 3 industry (types of asbestos and their 4 carcinogenic potential)." And, two, "Asbestos 5 Health Question Perplexes Experts." He then 6 attaches, does he not - 7 A. An index. 8 Q. -- a synopsis of articles with regard 9 to asbestos? 10 A. Yes. 11 Q. And if we look at the second to last 12 page of that document, the first article listed 13 there is, "Asbestos Dust is Linked to Disease 14 (Asbestosis Lung Cancer Mesothelioma and 15 Gastrointestinal - brief summaries of Dr. 16 Selikoff reports")? 17 A. Yes. 18 MR. RADCLIFFE: Object to form. 19 Q. Then the second to last one says, 20 "Type of Asbestos and Respiratory Cancer in the 21 Asbestos Industry (Types of Asbestos and Their 22 Carcinogenic Potentials)." Correct? 23 A. Yes. 24 Q. Basically, this is an indication that EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 131 1 the FMSI was fulfilling its avowed purpose 2 which was to keep abreast of - 3 A. To disseminate information, yes. 4 Q. And this is information about 5 mesothelioma and lung cancer that was 6 disseminated to its membership, one of which 7 was Abex? 8 MR. RADCLIFFE: Object to form. 9 A. Yes. 10 Q. Okay. 11 MR. GEORGE: I'm going to mark the 12 next exhibit as Exhibit 29. 13 (Exhibit No. 29, Letter to Asbestos 14 Study Committee, 3.10.75 so marked) 15 Q. This is a letter from Drislane to 16 members of the Asbestos Study Committee of 17 which Abex was a member, correct? 18 A. Yes. 19 Q. And it indicates that in talking about 20 mesotheliomata in rats that Mr. Weaver -- "This 21 is a British paper that indicated that 22 mesotheliomata was observed in a considerable 23 proportion of animals with all samples of 24 asbestos. Mr. Weaver indicated this was bad EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 132 1 news for those hoping that chrysotile would be 2 proven not to be associated with mesothelioma." 3 MR. RADCLIFFE: Object to form. 4 Q. That's what they wrote in March 1975, 5 correct? 6 A. Yes. 7 MR. RADCLIFFE: Object to form. 8 Q. Now in August of 1975 -- I'm sorry, in 9 June of 1975 --an exhibit that I'll mark as 10 31? 11 (Exhibit No. 30, Exhibit Number 12 Skipped - No Exhibit Marked) 13 (Exhibit No. 31, Friction Material 14 Board of Directions Meeting Minutes, 6.75 so 15 marked) 16 Q. Again, these are minutes of the 17 meeting of the board of directors of Friction 18 Materials Standard Institute and it indicates 19 that an S.S. Conway was present for Abex 20 Corporation? 21 A. Yes. 22 Q. Do you know who Mr. Conway was? 23 A. Yes. 24 Q. Who was that? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 133 1 A. Depends on the time frame. I'm not 2 sure . As of 1975 he probably was either vice 3 pres ident of sales or perhaps president of Abex 4 fric tion. 5 Q. And also present was Mr. Nelson? 6 A. Right. 7 Q. And he was the committee chairman? 8 A. Right. 9 Q. And one of the things that they 10 disc ussed if you - 11 A. It doesn't say what committee he's 12 chai ring. 13 Q. It says (brak e pe rforma nc e)? 14 A. Brake pe rforman ce , okay . 15 Q. Anyway, if yo u tu rn to pa ge three of 16 the doc ument? 17 A. (Witness comp li es ) 18 Q. The thre e on th e top. 19 A. It's the last p ag e; is th at correct? 20 Q. Yes. 21 A. Okay. 22 Q. Under Me dical i t says, "S eli koff 23 cont inu es predict ions of e pidemi c of 24 asbe stos-related death and disease in years to EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 134 1 come. He emphasizes that mesothelioma hazard 2 and the fact no known dose level is safe and is 3 pointing to the possible health significance of 4 shorter, smaller fibers or particles not now 5 covered by standards. 6 Selikoff people have been actively 7 promoting hazards associated with asbestos 8 emissions from brake lining wear and from brake 9 service operations. Acknowledgement of 10 association between asbestos exposure and 11 increased GI cancer has become accepted 12 practice during the past year." 13 That's what was reported to the 14 members of the FMSI, correct? 15 MR. RADCLIFFE: Object to form. 16 MR. CARON: Object to form. 17 A. Honestly, I'm not sure. I mean, I'm 18 reading this cover letter, and then it goes to 19 page 10 and then it goes to an Asbestos Study 20 Committee report. 21 Q. Well, if it's - 22 A. And I don't know that -- I mean, the 23 cover letter doesn't say anything about the 24 Asbestos Study Committee. It talks about the EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 135 1 brake performance committee. 2 Q. If you turn to page -- the second to 3 last page of the document -- well, third to 4 last page. 5 A. (Witness complies) Yeah, that has 6 number 59 in the lower right-hand corner? 7 Q. I think it's 54. 8 A. Okay. 9 Q. But it says this is an Asbestos Study 10 Committee report, correct? 11 A. It does, but the cover sheet doesn't 12 say anything about an asbestos cover. It says 13 committee chairman present, R.E. Nelson, brake 14 performance. 15 Q. Let me ask you this - 16 A. Guests present, and it has all of 17 these names, except it doesn't say anything 18 about an Asbestos Study Committee nor does it 19 say anything about Ike Weaver. 20 Q. To the extent that these are documents 21 from June 1975 that are part of the Asbestos 22 Study Committee report, Abex was a member of 23 that committee in June 1975, correct? 24 MR. RADCLIFFE: Object to form. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 136 1 A. Yes, we were. 2 Q. And those final three pages appear to 3 be contiguous, correct? 4 MR. RADCLIFFE: Object to form. 5 A. I believe they appear to be 6 contiguous, yes, but who -- I mean, I don't 7 know who it was reported to. 8 Q. This is the same Dr. Selikoff that 9 first came to the attention of Dr. Blackwell in 10 1964, correct? 11 A. Yes. 12 Q. And so it's now nine years after he 13 first heard about Dr. Selikoff's research, 14 correct? No, it's actually 11 years? 15 A. Who is "he"? 16 Q. Dr. Blackwell? 17 A. Dr. Blackwell doesn't have anything to 18 do with that. 19 Q. I understand that, but Dr. Blackwell 20 first heard of Dr. Selikoff's studies in 1964 21 and it's now 1975? 22 A. That's right. 23 Q. So that's 11 years after that 24 research, correct? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 137 1 A. Yes. 2 MR. RADCLIFFE: Object to form. 3 Q. I want to show you what we'll mark as 4 Exhibit 32. 5 (Exhibit No. 32, Letter to D.K. 6 Rennie, 8.22.75 so marked) 7 Q. It's dated August 22, 1975, that's a 8 letter from Dr. Blackwell to Mr. Rennie, 9 correct ? 10 A. Yes. 11 Q. Is this a letter you've seen before? 12 A. I'm not sure. 13 Q. Okay. 14 A. Yes, I have seen this before. 15 Q. This has various Bates numbers at the 16 bottom of it, correct? 17 A. It has more numbe rs than I can 18 decipher. SPNY numbers, KWHLL number, KAZ 19 numbers, exhibit numbers. 20 Q. This has as an exhibit number for one 21 of your prior depositions? 22 A. Okay. 23 Q. And in this letter Mr. Blackwell says, 24 "In the most recent Occupational Safety & EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 138 1 Health Reporter, there's a brief comment 2 quotin g Dr. Selikoff regarding mesotheli omas. 3 Appare ntly, several cases have been note d in 4 automo bile repair workers." 5 That's what he wrote, correct? 6 A . Yes. 7 MR. RADCLIFFE: Object to form. 8 Q . "Additionally, in thinking of p roduct 9 liabil ity, do we need to look upon the f riction 10 produc t brakes as requiring any label re garding 11 potent ial hazard?" 12 That's the question that he ask s, 13 correc t? 14 A . Correct. 15 Q . And to the extent that he was a sking 16 whethe r we should put on our label 17 mesoth elioma, that never occurred, right ? 18 A . That's not what he was asking. He was 19 unawar e that we had labels on our produc ts. 20 Q . To the extent that you had caut ionary 21 labels on your product, they didn't ment ion 22 anythi ng about mesothelioma, correct? 23 MR. RADCLIFFE: Object to form. 24 A . No, they didn't. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 139 1 Q. I want to show you what we'll mark as 2 Exhibit 33. 3 (Exhibit No. 33, Memo to C.C. 4 Blackwell and E.H. Feierabend so marked) 5 Q. This is a memo from Don Rennie to Mr. 6 Blackwell and Mr. Feierabend. Have you seen 7 that before? 8 A. I don't believe I have. 9 Q. It has the SPNY Bates numbering at the 10 bottom, correct? 11 A. It has an SPNY number, yes. 12 Q. Are you familiar with Mr. Rennie's 13 handwriting? 14 A. No, I'm not. I mean, I've seen his 15 handwriting. I can't say that is or isn't. I 16 just don't know. 17 Q. What this memo purports to do is to 18 send to Dr. Blackwell and Mr. Feierabend an 19 article from the New York Daily News, correct? 20 A. Somebody wrote that in. I don't know 21 that it's from the New York Daily News. 22 Q. The article is entitled, Cancer Kills 23 1 in 5 asbestos workers, says Doc. Correct? 24 A. That's what the headline says. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 140 1 Q. Under it, "It's Simply a Disaster. 2 Selikoff considered to be one of the world's 3 leading experts on cancer-causing chemicals 4 said, 'It now seems clear that one out of every 5 five workers exposed to asbestos will die of 6 cancer and probably cancer of the lung. It's 7 simply a disaster." 8 That's what's recorded, correct? 9 A. Yes. 10 MR. RADCLIFFE: Object to form. 11 Q. He says on the next column that first 12 paragraph, "However, he said an additional 35 13 of the cancer deaths were from mesothelioma, a 14 type of tumor that is almost unheard of in the 15 absence of exposure to asbestos." 16 That's what he wrote -- what was 17 written about him, correct? 18 MR. RADCLIFFE: Object to form. 19 A. Written about asbestos workers, yes. 20 Q. And then under "Risk Cited For Others, 21 Selikoff told the meeting that insulation 22 workers are not the only people at risk. It is 23 apparent, he said, that people living near an 24 asbestos plant or with an asbestos worker in EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 141 1 the household has greater chances of getting 2 cancer. 3 Selikoff also expressed concern for 4 the hundred thousand men in this country who 5 work in garages repairing or lining brakes. 6 While it was once thought that the heat used in 7 the process eliminated the risk from asbestos 8 dust, it is now clear that this is untrue, he 9 said." 10 That's what they reported, correct? 11 MR. RADCLIFFE: Object to form. 12 A. Who are "they"? 13 Q. The New York Daily News? 14 A. You know, again, I can't substantiate 15 it s ay s New Yo rk D ai ly N ew s ot he r th an 16 han d wr ot e it o n th e top, b ut t he a rt ic 17 Was h in gt on, Fe br ua ry 25, a nd t he n ew s 18 And it t alks a bo ut N ew Y or k an d Ne w Je 19 ins u la ti on w or ke rs s o... . 20 Q . Tha t ar ti cl e qu ot es D r. S el ik 21 A. It does, but -22 Q. -- as expressing co ncern for the 23 red thousand men in the country wo rking 24 ges repairing or lining brakes? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 142 1 MR. RADCLIFFE: Object to form. 2 A. It doesn't express his opinion, yes. 3 Q. That certainly would be an opinion 4 that Dr. Blackwell and Mr. Feierabend would be 5 interested in since Abex was manufacturing 6 asbestos brake products in 1976? 7 MR. RADCLIFFE: Object to form. 8 A. Since Abex was trying to garner as 9 much information about the topic as it possibly 10 could, yes. 11 MR. GEORGE: Do you want to keep 12 going? 13 THE WITNESS: I'd like to take a lunch 14 break, frankly. 15 MR. RADCLIFFE: How much longer do you 16 think you'll be? 17 MR. GEORGE: Probably half hour, 45 18 minutes. 19 THE VIDEOGRAPHER: The time is now 20 1:51. We're going off the record. 21 (Recess 1:51 p.m. to 2:48 p.m.) 22 THE VIDEOGRAPHER: The time is 2:48 23 p.m. We're back on the record. 24 BY MR. GEORGE: EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 143 1 Q. When we left, we were talking about an 2 article that was sent to Dr. Blackwell and Mr. 3 Feierabend in the late '70s. The next exhibit 4 I'd like to show you is a document that we'll 5 mark as 34. 6 (Exhibit No. 34, Memo to John Marsh, 7 7.22.76 so marked) 8 Q. This is a letter from R.H. Mereness, 9 M-E-R-E-N-E-S-S, executive director. It's on 10 Asbestos Information Association letterhead. 11 It's dated July 22, 1976. First of all, I want 12 to ask you if you've seen that document before? 13 A. I don't recall it. 14 Q. First of all, you would agree with me 15 that Abex was a member of the Asbestos 16 Information Association, correct? 17 A. It was. 18 Q. And, in fact, I think in your 19 interrogatory responses you told us that it was 20 a member from, let's see, 1975 to 1980? 21 A. That's correct. 22 Q. Okay. Now, one ofthe memorandum four 23 is to Eric Feierabend, correct? 24 A. Yes. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 144 1 Q. And that would be an employee of Abex? 2 A. Yes. 3 Q. What this memo does is to send to Mr. 4 Feierabend and others a galley proof of an 5 article prepared by Mount Sinai School of 6 Medicine on asbestos dust during the servicing 7 of brake and clutch assemblies. Do you agree 8 that's what the memo indicates? 9 A. Yes. 10 MR. RADCLIFFE: Object to form. 11 Q. It says that "This study was cited as 12 the primary reference for the NIOSH alert 13 issued August 1975 (distributed to members) 14 calling attention to potential health hazards 15 to workers exposed to asbestos dust during the 16 servicing of brake and clutch assemblies." 17 Are you familiar with the NIOSH alert 18 from August 1975? 19 A. Not offhand, I don't recall it. 20 Q. Let me show you what we'll mark as 21 Exhibit 35. 22 (Exhibit No. 35, Current Intelligence 23 Bulletin 5, 8.8.75 so marked) 24 Q. This is the Current Intelligence EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 145 1 Bulletin No. 5 dated August 8, 1975, entitled 2 Asbestos Exposure During the Servicing of Motor 3 Vehicle Brake and Clutch Assemblies. 4 Is that document that you've seen 5 before? 6 A. I don't recall seeing this before 7 today. 8 Q. Do you know whether that's a document 9 that was received by Abex through its 10 association with the Asbestos Information 11 Association? 12 A. I don't know. We were members. It's 13 probable that we did get a copy, but I can't 14 say that I know for sure we did. 15 Q. What that says -- what this is is from 16 the Department of Health Education and Welfare, 17 and it says, "This communication is intended to 18 alert you to recently gathered information 19 indicating a potential health hazard for 20 persons exposed to asbestos during the 21 servicing of motor vehicle brake and clutch 22 assemblies" is what the alert says, correct? 23 A. Yes. 24 MR. RADCLIFFE: Object to form. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 146 1 Q. Is it says, "The data was presented by 2 investigators from the Mount Sinai School of 3 Medicine in New York City indicating that 4 workers engaged in the maintenance and repair 5 of automobile and truck brake linings are 6 exposed to potentially hazardous levels of 7 airborne asbestos dust." 8 MR. RADCLIFFE: Object to form. 9 Q. That's what's written in the second 10 sentence of the second paragraph there? 11 A. Yes. 12 Q. And that's certainly consistent with 13 the cover letter from the Asbestos Information 14 Association saying that Mount Sinai was the 15 basis for the data that was contained within 16 the alert? 17 MR. RADCLIFFE: Object to form. 18 A. I don't understand your question. 19 Q. All I'm saying is that the fact that 20 the alert is referencing Mount Sinai is 21 consistent with the cover letter from the 22 Asbestos Information Association which says 23 that the alert issued in August 1975 was based 24 on information from Dr. Selikoff and Mount EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 147 1 Sinai? 2 A. Yes. 3 MR. RADCLIFFE: Object to form. 4 Q. One of the other things that this 5 alert told people that received it is that - 6 in the third paragraph, last sentence, "The 7 present findings indicate that enough asbestos 8 is preserved to produce significant exposures 9 during certain brake servicing procedures," 10 correct? 11 MR. RADCLIFFE: Object to form. 12 A. I'm sorry -- oh, I do see it. Third 13 paragraph? 14 Q. Correct. 15 A. Yes. 16 Q. And what they're saying is that 17 although there is a chemical transformation of 18 the majority of the asbestos, once the brakes 19 are put in use that there still is some amount 20 of asbestos that survives the brake operation? 21 MR. RADCLIFFE: Object to form. 22 MR. CARON: Object to form. 23 Q. Do you agree with that? 24 A. No, I don't really see that. I EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 148 1 mean -- 2 Q. It says, "Previous studies of the 3 extent of asbestos emissions from automobile 4 brake lining wear showed that only a very small 5 fraction of the original asbestos content of 6 the brake lining is found in brake drum dust. 7 It was presumed this is due to the thermal 8 degradation of the fibers during braking. The 9 present findings indicate that enough asbestos 10 is preserved to produce significant exposures 11 during certain brake servicing procedures." 12 A. That's what it says. 13 MR. RADCLIFFE: Object to form. 14 Q. Have you seen the paper that 15 the Asbestos Information Association is sending 16 to its members as a galley proof from the 17 researchers at Mount Sinai entitled Asbestos 18 Exposure During Brake Lining Maintenance and 19 Repair? 20 A. No, I have not seen that. 21 Q. Do you know if this article is within 22 the business records of Abex in the document 23 depository? 24 A. I haven't seen it, so at this point EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 149 1 I'd have to say no. 2 Q. I noticed in one of your deposi tions 3 that you disagreed with the concept that some 4 of the brake wear debris dust contains 5 unaltered chrysotile fibers? 6 MR. RADCLIFFE: Object to form. 7 Q. Is that your opinion? 8 A. Could you say that again? 9 Q. Sure. Let me just ask you: Do you 10 agree that even though a significant por tion of 11 the chrysotile that starts in the brake lining 12 converts to a substance known as Fosteri te -- 13 A. Fosterite. 14 Q. -- during the braking process? 15 A. Right. 16 Q. That there are free floating 17 chrysotile asbestos fibers that survive that 18 process intact? 19 MR. RADCLIFFE: Object to form. 20 A. It's kind of a compound point t hat 21 you're trying to make. I don't dispute that 22 there might be some very short fiber 23 chrysotile, your term "free floating" ma kes it 24 difficult for me to answer your question EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 150 1 directly. 2 Q. Let me remove that term and address it 3 this way. You're aware that as part of - 4 well, are you aware that as part of the paper 5 that Dr. Selikoff and others at Mount Sinai did 6 is they examined what we call brake wear debris 7 under a microscope? 8 A. I understand that Dr. Selikoff and 9 many other have studied wear debris over the 10 years. 11 Q. And what wear debris is is that 12 material that remains in the drum brake housing 13 after the brakes have been applied? 14 A. I didn't know it was limited to drum 15 brakes, but are we limiting it to drum brakes? 16 Q. No. Also it can be around where the 17 disc brakes are? 18 A. Okay. 19 Q. You agree with that? 20 A. Yeah, I agree that wear debris is wear 21 debris. 22 Q. You also agree that when we talked 23 earlier about manipulation of brakes prior to 24 installation, that doesn't involve this EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 151 1 Fosterization process? 2 MR. RADCLIFFE: Object to form. 3 A. When you say "manipulation," what are 4 you talking about? 5 Q. If you have to grind, drill or sand - 6 A. No. 7 Q. -- a new brake lining? 8 A. No. We're talking about wear debris 9 which is totally different than that. 10 Q. Now, have you seen photomicrographs of 11 brake wear debris where they have demonstrated 12 the existence of Chrysotile fibers that are 13 uncoated and unconverted into - 14 A. No. 15 Q. -- the Fosterite process? 16 MR. RADCLIFFE: Object to form. 17 A. I've never seen any such photographs. 18 Q. Am I correct that, for example, on 19 page 124 of the Rohl article -- which we'll 20 make as the next exhibit, which will be 36 - 21 you haven't seen a photograph like that that 22 indicates that there are in effect chrysotile 23 fibers still present in the wear debris? 24 A. No, I have not. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 152 1 (Exhibit No. 36, Asbestos Exposure 2 During Brake Lining Maintenance and Repair so 3 marked) 4 Q. And there are -- I'm going to show you 5 page 116 of the same document and ask you 6 whether those photomicrographs indicate that 7 there are chrysotile fibers that survived 8 intact the braking process? 9 MR. RADCLIFFE: Object to form. 10 A. I couldn't say from these photographs. 11 Q. What does the caption say on the 12 bottom of those? 13 A. If you want me to read the caption, 14 that's one thing. If you want my 15 interpretation of a photomicrograph, that's 16 entirely something else. There are four 17 figures on this page. Figure 3 says, "Electron 18 microphotographs of brake drum dust. 19 Chrysotile is present in both free fiber and 20 fibril form. Opaque granular material is road 21 dust or phenolic binder. A x 10,800; B x 9300; 22 C x 30,000; D x 30,000." 23 Q. Okay. Now, you indicated in a prior 24 deposition that you had at least on one EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 153 1 occasion had the opportunity to look at brake 2 wear debris under a microscope? 3 A. I believe I saw brake wear debris and 4 brake lining under an electron microscope, yes. 5 Q. And that was only one occasion, 6 correct? 7 A. No, I think it was more than one 8 occasion. 9 Q. How many occasions was it? 10 A. I don't remember. I mean, I've been 11 in that business for most of my life. And 12 using microscopes, both optical and electron 13 microscopes were I wouldn't say routine, but it 14 was certainly something I'd done numerous 15 times. 16 Q. And why would you be looking at brake 17 wear debris? 18 A. Well, in one case to find out why the 19 opposing surface, the brake drum, was being 20 worn prematurely. In other cases to understand 21 structural failures of brake lining. Many 22 reasons why we would have done that. 23 Q. The significance of anything you saw 24 under the electron microscope would have been EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 154 1 pointed out to you by the operator of the 2 electron microscope, correct? 3 A. Well, it's kind of -- you know, I 4 wasn't a qualified electron microscope 5 operator, so it was not uncommon that the 6 operator and the scientist or engineer would 7 sit with the operator, and they would kind of 8 collaborate on what they were seeing and trying 9 to deduce and garner information from the 10 image. 11 Q. When NIOSH or the director of the 12 Occupational Health and Surveillance in 13 Biometrics of the Department of Health and 14 Human Services wrote to individuals in this 15 August 1975 letter and indicated that the 16 present findings indicate that enough asbestos 17 is preserved to produce significant exposures 18 during certain brake surfacing procedures, do 19 you believe that that information is incorrect? 20 MR. RADCLIFFE: Object to form. 21 A. I'm not saying it's incorrect. It's 22 inconsistent with my understanding. 23 Q. One of the other things that was 24 communicated in this alert was the fact that "A EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 155 1 review of the scientific literature on th e 2 association between asbestos exposure and 3 mesothelial tumors of the pleura and peri toneum 4 has re ve aled at le as t fo ur cas es o f th rare 5 tumo rs i n pe rson w ho w er e empl oy ed i n 6 invo lv in g au tomo bi le b ri ck servi ce " s 7 Tha t's wh at w as r epor te d, c or t? 8 A . I d on't s ee t ha t on t hi s pa ge Can 9 you he lp me? 10 Q . Las t se nt en ce o f the fi rs t -- of the 11 last p ar agra ph? 12 A . The fir st p ar ag ra ph? 13 Q . Of the la st p ar ag raph ? 14 A . Oka y. I se e it , yes. 15 Q And to th e ex te nt tha t Ab ex r ived 16 this alert, they were on at least notice that 17 there were some -- there was some scienti fic 18 literature that showed the association be tween 19 asbestos exposure and mesothelial tumors in 20 automobile brake servicing personnel? 21 MR. RADCLIFFE: Object to form. 22 Q. Would you agree with that? 23 A. I don't know what your question is, 24 I'm sorry. EPPLEY COURT REPORTING, LLC 508.478.9795 ert Indelicato Volume I September 26, 2011 156 1 Q. My question is: If Abex as a member 2 the Asbestos Information Association received 3 this alert in 1975 -- 4 A. Okay. 5 Q. -- then they would be on notice 6 that -7 A. What do you mean by "on notice"? Can 8 you define "on notice" for me? I guess that's 9 the problem. 10 Q. Well, they certainly were -11 A. Did they have knowledge? 12 Q. They were aware of the existence of 13 scientific literature that showed an 14 association of mesothelial tumors and brake 15 service personnel? 16 A. I would have -- 17 MR. RADCLIFFE: Object to form. 18 A. -- to say as members they would have 19 garnered that information in the normal course 20 of their business. 21 Q. There was also certain recommended 22 practices that were part of the alert. I'm 23 going to show them to you. One of the 24 recommended practices says that -- and this is EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 157 1 the first one. "If possible, an area shall be 2 designated for all brake and clutch repairs. 3 Entrances into this area shall be posted with 4 an asbestos exposure warning sign as follows." 5 And the last part of that warning sign was 6 "Breathing asbestos dust may cause asbestosis 7 and cancer." 8 That's what was recommended by NIOSH 9 in 1975, correct? 10 A. Yes. 11 Q. And that's not a statement that ever 12 appeared on any cautionary language that Abex 13 put on any of its products? 14 MR. RADCLIFFE: Object to form. 15 A. That's not what this says. This says 16 that the area shall be designated and labeled 17 this way. It doesn't say anything about using 18 this on the product. 19 Q. But the fact that breathing asbestos 20 dust can cause asbestosis or cancer was not 21 information that Abex provided to the consumers 22 of its products either through an insert in the 23 product itself or by labeling on the packaging 24 of its product? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 158 1 MR. RADCLIFFE: Object to form. 2 A. No, we did not. 3 Q. It also indicates that "During br ake 4 services air purifying respirators, either 5 single use or with replacement of particul ar 6 dust filters, shall be worn during all 7 procedures following removal of the wheels , 8 including reassembly." Again, that's not a 9 procedure that Abex communicated to any 10 consumers of its products either through a n 11 insert or through cautionary language on i ts 12 packaging, correct? 13 MR. RADCLIFFE: Object to form. 14 A. Our customers were not the instal lers 15 of brakes. I mean, our product has to be 16 handled and assembled to something else be fore 17 it can be put in the hands of someone who 18 assembles brakes so............ 19 Q. For that person that eventually g ets 20 your product and has to install or handle it, 21 Abex did not communicate the fact that 22 respirators should be worn during that pro cess? 23 MR. RADCLIFFE: Object to form. 24 A. There's no way for Abex to commun icate EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 159 1 it to the persons that would be doing the 2 installation. I contend that that -- that we 3 would rely on the brake manufacturers, the 4 vehicle manufacturers, the rebuilders. We had 5 no way to do that. 6 Q. You certainly didn't pass any of the 7 information that you had gleaned to your 8 customers? 9 MR. RADCLIFFE: Objection. 10 Q. Other than what was in your 11 cautionary -- 12 A. I disagree - 13 MR. RADCLIFFE: Objection. 14 A. -- because a lot of these warnings and 15 recommendations and so on were, in fact, 16 incorporated into FMSI catalog which ultimately 17 got to the end users. 18 Q. And that was not until the late '70s 19 and early '80s, correct? 20 A. That's the time period we're talking 21 about here. 22 Q. This is 1975, and the FMSI catalog was 23 not available until 1978, correct? 24 MR. RADCLIFFE: Object to form. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 160 1 A. I don't recall it being that late. I 2 thought it was like about 1976, but I don't 3 happen to have a ready reference for that date. 4 Q. According to your answers to 5 interrogatory responses, you indicate that "In 6 1979 and 1982 Abex participated in the 7 preparation and distribution of a pamphlet 8 published by the Friction Materials Standard 9 Institute entitled Recommended Procedures For 10 Reducing Asbestos Dust During Brake Service." 11 A. I stand corrected. Those are the 12 dates. 13 Q. 1979 was the first time that type of 14 information was communicated by Abex, correct? 15 A. Yes. 16 MR. RADCLIFFE: Object to form. 17 Q. You would agree with me that by that 18 period of time, 1979, Abex had been subject to 19 -- had already been sued in at least four 20 occasions in different states with regard to 21 allegations that individuals had developed an 22 asbestos disease from the use of Abex's 23 products? 24 A. Can I refer to -- EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 161 1 MR. RADCLIFFE: Object to form. 2 Q. Sure. 3 A. The first one was 1977. 4 Q. Then there was one in 1978 and two in 5 1979? 6 MR. RADCLIFFE: Object to form. 7 A. Correct. 8 Q. Also in 1979 Abex received an 9 allegation that one of its workers was 10 diagnosed with asbestosis, correct? 11 A. Yeah. I'm very familiar with that 12 case. It was an employee in our Salisbury 13 plant, and it turned out that he had been 14 exposed to asbestos in the shipbuilding 15 industry. And under North Carolina workers' 16 comp law, last injurious exposure date was what 17 mattered, and that was why Abex was named in 18 that suit. 19 MR. RADCLIFFE: Object to form. 20 Q. You've also indicated that a review of 21 Abex's records demonstrated that there were a 22 few claimed cases of asbestosis among its 23 employees, correct? 24 A. Yes. Claimed being the operative EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 162 1 word. 2 Q. I want to show you a document dated 3 September 5, 1978. 4 MR. GEORGE: We'll mark this as 5 Exhibit 37. 6 (Exhibit No. 37, Letter to E.P. Hoff, 7 9.5.78 so marked) 8 Q. This is a letter from a B. Iwarsson, 9 I-W-A-R-S-S-O-N? 10 A. Yes. 11 Q. Who is Mr. Iwarsson? 12 A. He was an executive at Friction 13 Products Group of Abex. 14 Q. And he's writing to a Mr. E.P. Hoff? 15 A. Right, who is sales manager. 16 Q. And this is under the Friction 17 Products Group Winchester letterhead, correct? 18 A. That's right. 19 Q. Is this -- first of all, is this an 20 authentic record of Abex? 21 A. I believe it be to, yes. 22 Q. In this letter it says talking about 23 asbestos booklets - 24 A. Yes. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 163 1 Q. -- "Please do not, under any 2 circumstances, distribute our blue booklets to 3 our customers." What were the blue booklets? 4 MR. RADCLIFFE: Object to form. 5 A. The blue booklets were informational 6 booklets that were distributed to our workers 7 in our factory as part of their asbestos 8 education and had a little tear-off thing where 9 they signed and acknowledged receipt of the 10 training booklet. 11 Q. The blue information booklets were 12 internal documents that - 13 A. Dealt with. 14 Q. -- educated your workers to the 15 hazards associated with working with asbestos? 16 A. With raw asbestos fiber in their 17 environment. 18 Q. Do you have any exemplars of that blue 19 booklet? 20 A. No. I'm sorry to say we have not been 21 able to produce such a copy. 22 Q. What this letter says is that, "The 23 blue information booklets are strictly for 24 internal use and should not be considered to EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 164 1 inform our customers o f the potential hazards 2 of asbestos. The FMSI booklet would be quite 3 sufficient." 4 That's what h e wrote, correct? 5 A. Yes. 6 Q. Did Abex itse lf ever publish any kind 7 afe handling b ulle tin or brochures to its 8 ome rs? 9 A. No. 10 Q. Abex did, how ever, provide MSDS 11 ts, correct? 12 A. Yes. 13 Q. An MSDS sheet is a material safety 14 data sheet? 15 A. That's right. 16 Q. It was requir ed by OSHA? 17 A. That's right. 18 Q. That a manufa cturer of a product 19 needed t o alert the co nsumers of that product 20 or the p eople who purc hased that product of the 21 contents of that produ ct and any potential 22 hazards that may be as sociated with the use of 23 that pro duct, correct? 24 MR. RADCLIFFE : Object to form. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 165 1 A. Yes. 2 Q. I want to show you a document that is 3 from a document that's entitled Asbestos 4 Corporate Friction Product Group Brake Lining, 5 and it is an August 1, 1986, MSDS date, and ask 6 you if you're familiar with this document? 7 A. I'm not familiar with this document. 8 Q. Let me ask you about the document 9 itself. Would you agree with me that the Abex 10 company name in 1986 was Abex Corp. Friction 11 Products Group? 12 MR. RADCLIFFE: Object to form. Let 13 me just object also this is not an Abex 14 document. 15 MR. GEORGE: I'm going ask some 16 questions about it. 17 MR. RADCLIFFE: Well, you can ask 18 questions about it. I don't know where you got 19 it. I don't know who prepared it. 20 MR. GEORGE: That's why I'm going ask 21 questions about it. 22 MR. RADCLIFFE: Can I have an 23 continuing objection to all your questions? 24 MR. GEORGE: You may. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 166 1 A. The name of the company was not Abex 2 Corp. Friction Products Group. 3 Q. Was it located at 2610 Paper Mill 4 Road, Winchester, Virginia? 5 A. Was the company? 6 Q. Correct? 7 A. Or was there a factory at that 8 location? 9 Q. Did Abex have a facility that address? 10 A. Yes. 11 Q. Was Eaton Corporation in Kalamazoo, 12 Michigan, one of Abex's customers? 13 A. Well, Eaton Corp. in Kalamazoo, no. 14 Eaton was a customer, but I don't recognize 15 Kalamazoo, Michigan, as a location for Eaton 16 Corp. 17 Q. Are you familiar with the Hazardous 18 Material Information System of the federal 19 government? 20 A. The MSDS system? 21 Q. No, the HMIS system of the federal 22 government? 23 A. No, I'm not. 24 Q. Are you aware of whether Abex ever EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 167 1 sold any of its asbestos material to the 2 government? 3 A. I'm not sure. I don't think so. 4 Q. Did Abex sell any of its material to 5 someone who incorporated that asbestos material 6 into a product that was sold to the government? 7 A. Entirely possible. 8 Q . D o you ha ve a ny exe mp la rs of MSDS 9 shee ts t ha t Abex g av e to its c us tomers ? 10 A . I b elie ve t ha t I 've s ee n one as an 11 exhi bi t in s ome ot he r li t iga ti on , but to my 12 know le dg e we hav en 't b ee n ab le t o find a ny 13 MSDS es i n ou r re po si to ry . 14 Q . D o you kn ow w ha t da te t he MSDS tha 15 you saw was from -- 16 A. No, I don't. 17 Q -- what year? I wan t to show you a 18 series of advertisements we'l l mark as Exhibit 19 39. 20 (Exhibit No. 39, Advertisements so 21 marked) 22 Q. I think you've seen these 23 advertisements before? 24 A. I'll tell you when you show them to EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 168 1 me. 2 Q. These are advertisements from the 3 various issues of The Saturday Evening Post? 4 A. Yeah, I've seen some of these, not 5 necessarily all of them but... .okay. 6 Q. These are -- take the first one from 7 April 30 , 1955? 8 A. I can't even read the dates on these 9 Q. The first page. 10 A. Okay. 11 Q. In that one there's a picture of a 12 revolver , correct? 13 A. Uh-huh. 14 Q. It says, "Brakes can become just as 15 deadly," correct? 16 A. Yes. 17 Q. It says, "When you handle a loaded 18 revolver, you treat it with care and respect. 19 It's a deadly weapon and you know it. Brakes 20 can be just as lethal, but, unfortunately, you 21 may not know they have become potential 22 killers," correct? 23 A. Yes. 24 Q. It says -- EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 169 1 MR. RADCLIFFE: Object to form. 2 Q. It says, "American Brakeblok, American 3 Safety brake lining." Is the way that American 4 Brakeblok is scripted there something that is a 5 historical trademark of American Brakeblok? 6 A. Yes. 7 Q. It says, "A Product of Brake Shoe 8 distributed nationally by" and then it has a 9 symbol for NAPA, correct? 10 A. I can't read that. 11 MR. CARON: Object to form. 12 A. I see a product of brake shoe 13 distributed something nationally. 14 Q. Okay. Let's look at the second one. 15 This is from August 27, 1955. 16 A. Uh-huh. 17 Q. This is a picture of two sticks of 18 dynamite, correct? 19 A. That appears to be. I'm not sure. 20 It's really a bad image. 21 Q. It says, "Brakes can be become just as 22 deadly. Handling dynamite can be a risky 23 operatio n. It's a deadly expl osive and 24 everyone knows it. Brakes can be just as EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 170 1 deadly, but, unfortunately, you may not know 2 that they've become potential killers"? 3 A. "That's why regular periodic brake 4 inspection is so important." 5 Q. The next -- it's from July 1955, and 6 it has a photograph of a dagger, correct? 7 A. Yes. 8 Q. It says, "Brakes can become just as 9 deadly. An ancient dagger can be an 10 interesting relic or a deadly weapon. 11 Fortunately, you know it. Brakes can be 12 equally deadly," is what they write, correct? 13 MR. CARON: Object to form. 14 A. Yes. 15 Q. Then the last one is a photograph of a 16 few bullets, correct? 17 A. Yes. 18 Q. And it says, "Loaded cartridges can be 19 a means of protection or deadly killers, and 20 you know it. Brakes can also protect you or be 21 just as fatal as a bullet, but, unfortunately, 22 you may not know they have become potential 23 killers," correct? 24 MR. CARON: Object to form. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 171 1 A. Yes. 2 Q. We talked earlier about the 3 relationship between NAPA and Abex, and you 4 said you believe that that relationship went 5 back sometime into the '40s? 6 A. I think even before that as I thought 7 about it. 8 Q. Now, do you know whether Genuine Parts 9 had any other supplier of asbestos linings for 10 its brakes other than Abex? 11 A. Yes, I know they did. 12 Q. Okay. And how much of Genuine Parts' 13 business did Abex have? 14 MR. RADCLIFFE: Object to form. 15 MR. CARON: Object to form. 16 A. I don't know at what point in time 17 we're talking, but while I was active in the 18 business, I would say I'd estimate our market 19 share at NAPA to be about 30, 35 percent. 20 Q. Who else would supply linings for 21 Genuine Parts to put on its product? 22 MR. CARON: Object to form. 23 A. I don't know all the potential 24 suppliers over the years, but certainly EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 172 1 Raybestos, Eckland at the time, Bendix, now 2 Honeywell, Virginia Friction. I mean, there 3 was a couple of Canadian companies I know they 4 sourced product from. 5 Q. You've seen, have you not, various 6 advertisements from NAPA? 7 A. I mean - 8 MR. CARON: Object to form. 9 A. -- I saw one yesterday for wiper 10 blades. 11 Q. Let me show you these. This one is 12 from Commercial Car Journal July 1966? 13 MR. GEORGE: And we'll mark that as 14 Exhibit 40. 15 (Exhibit No. 40, Photocopy of 16 Commercial Car Journal Page 182-183, July 1966 17 so marked) 18 Q. In that advertisement they associate 19 products with specific manufacturers, correct? 20 MR. CARON: Object to form. 21 A. Well, there's images of various 22 products and various product types, and, I 23 mean, there's a line here for it looks like 24 suspension parts, that's NAPA Allied. There's EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 173 1 one for lamps and tubes, but it doesn't -- I 2 guess it's Balkamp. There's one for bearings, 3 one for emission parts, one for brakes. 4 Q. What does it have for brakes? 5 A. American Brakeblok, but it's limited 6 to in this case thick blocks and heavy-duty 7 linings, and the image is for a commercial 8 vehicle type of brake lining. 9 Q. Now, you are familiar, are you not, 10 that there were Rayloc relined brake shoe 11 catalogs that contained American Brakeblok 12 products? 13 MR. CARON: Object to form. 14 MR. RADCLIFFE: Object to form. 15 A. Catalogs contained products? I'm not 16 sure I understand what you're saying. 17 Q. I'm going to show you -- and I don't 18 have the whole catalog, but I'm going to show 19 you an excerpt from one. This is a BSE-72R 20 catalog, and it has that SPNY number at the 21 bottom, and it talks about Rayloc relined brake 22 shoes. It has the NAPA logo, and then it says 23 American Brakeblok? 24 A. Okay. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 174 1 Q. And if we go into the next page, it 2 talks about NAPA American Brakeblok relined 3 brake shoes, and in the table of contents -- I 4 didn't bring all the associated lists -- but 5 they talk about domestic cars, foreign cars, 6 relined brake shoe sets, and this is a catalog 7 that NAPA put out. I'm just asking - 8 MR. GEORGE: We'll mark this as 41. 9 (Exhibit No. 41, Rayloc Relined Brake 10 Shoes, BSE-72R Catalog so marked) 11 Q. Is this something that you're familiar 12 with? 13 A. Not offhand. I've seen similar kind 14 of catalog covers. 15 MR. CARON: I'm just going to object 16 to the form of the last question. I'm also 17 just going to make an objection to the use of 18 these documents. They're unauthenticated. I 19 don't think the foundation has been laid for 20 use of any of them. 21 Q. Let me ask you this: As the corporate 22 spokesman for Abex, are you aware of any 23 relined brake catalogs from Rayloc that 24 indicate that the linings were provided by EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 175 1 Abex? 2 A. Not necessarily. 3 MR. CARON: Object to form. 4 MR. RADCLIFFE: Object to form. 5 A. The trade name American Brakeblok at 6 some point in the corporate history was the 7 company name, but in this time frame American 8 Brakeblok was just a product trademark that we 9 let NAPA use. And we had a verbal agreement 10 with them that we wouldn't use it on anything 11 else. That's not to the say that every piece 12 of b ra k e lin in g th ey b ought f rom us or t ha t was 13 imp l ie d in t he ir c at al og came fr om u s. 14 Q . So wh en - - wh at you' re sayi ng i s that 15 Ame r ic a n Bra ke bl ok , ev en thou gh it's a 16 reg i st e red t ra de ma rk , that wa s a reg iste re d 17 trademark of your company, correct? 18 A. Yes, it was. 19 Q. Okay. So you lent your registered 20 trademark to NAPA to put on any brake material 21 that they sold? 22 A. No, it was - 23 MR. CARON: Object to form. 24 Q. I'm just trying to understand what EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 176 1 your testimony is. 2 A. We gav e them the use of that mark 3 all right. Our intent was to try to get a 4 much business f rom Rayloc, NAPA, Genuine Parts 5 as we possibly could. Not always did they buy 6 their brake lin ing from us, and it was a source 7 of many discuss ions of, Hey, guys, we're 8 letting you use the mark. You really shouldn't 9 be using somebo dy else's brake lining but, in 10 fact, they did. And they were an important and 11 big and a good customer, and we just kind of 12 let it go on. 13 Q. Do you have any documentation from 14 that depository that would substantiate that 15 testimony? 16 A. I beli eve we do. 17 Q. Okay. Have you produced any of that 18 material? 19 A. Did yo u ask for it? 20 Q. I'm su re we asked for it. Let me ask 21 this way: When did you first assign your 22 registered trad emark to NAPA? 23 A. I have no idea when it first started. 24 Q. When d id NAPA first sell a brake EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 177 1 product as an American Brakeblok mat erial that 2 did not contain an asbestos lining f rom an Abex 3 entity? And by that I mean any of t he 4 formulations of American Brakeblok? 5 A. I don't know when it starte d. 6 MR. CARON: Object to form. 7 A. It was certainly when I joi ned the 8 company in 1970 and got involved wit h the 9 friction business directly in '71 or '72 there 10 was brake linings that was not Abex' s that was 11 being used in the NAPA Genuine Parts 12 distribution. 13 Q. How would anybody who was p urchasing 14 that product know that it was not, i n fact, an 15 American Brakeblok Corporation linin g on that 16 product? 17 A. I don't know. 18 MR. CARON: Object to form. 19 A. Perhaps by the edge coding that was on 20 the brake lining. 21 Q. Your edge coding -- you men tioned 22 them. Let me just show you what we' ll mark as 23 Exhibit 42. 24 (Exhibit No. 42, Abex 614EF so marked) EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 178 1 Q. And this is an advert isement from Abex 2 an IC Industries Company Frict ion Products 3 Group and from Commercial Car Journal, October 4 1976. Have you seen that befo re? 5 A. I mean, it's familiar to me. I 6 probably remember seeing it ba ck when it ran in 7 the ad. 8 Q. And that is a picture of some truck 9 brake segments, correct? 10 A. Yes. That has nothin g to do with NAPA 11 or Genuine Parts. 12 Q. Correct. I'm just as king you -- you 13 talked about an edge code? 14 A. Right. That's typica l of an edge code 15 on a truck block. 16 Q. No. 41 is an example of what -- 17 A. 42. 18 Q. 42 is an exampl e of w ha t an edg e code 19 is which is on the edge of the b rake s. Yo u 20 would put your company's name, r ight ? 21 MR. RADCLIFFE: Objec t to f orm. 22 A. Well, you came up wit h a se ries o f 23 letters or numbers that were r eg iste red wi th 24 AAMVA, which was an Associatio n of M otor EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 179 1 Vehicle Administrators nationally, and they 2 would assign or you would request an edge code 3 nomenclature. 4 And they would grant it, and then you 5 put that on brake lining along with a 6 two-letter designation at the end here. It's 7 like EF which was a describer of the friction 8 performance in the brake. 9 Q. Now, were there instances where Abex 10 and its various prior entities, actual ly put 11 its name on the edge code like is depi cted in 12 Exhi bit 42? 13 MR. RADCLIFFE: Object to form. 14 MR. CARON: Object to form. 15 A. Every manufacturer had a different 16 methodology. Abex only used the term "Abex" on 17 its heavy-duty products. 18 Q. From your review of the corporate 19 records of Abex, did it ever put American 20 Brakeblok or any other ident ifying company name 21 on any of the edge codes of its passenger 22 brakes? 23 MR. RADCLIFFE: Obj ect to form. 24 MR. CARON: Object to form. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 180 1 Q. The linings that went on pa ssenger 2 brakes? 3 A. Whe n you say "name," no. A name like 4 America n Bra keblok or -- no. 5 Q. It always just had numbers? 6 A. Or letters. It might have had ABB or 7 ABX or COM. 8 Q. I want to show you what we'll mark as 9 43. This is what appears to be an 10 advertisement from Motor Age, April 1950. It 11 says, "Costs Up Profits Down. American 12 Brakeblok registered US patent office." And 13 then it says "NAPA jobbers everywhere and 39 14 warehouses have all the details. See your NAPA 15 jobber salesmen, Brake Shoe, American Brakeblok 16 Division." 17 (Exhibit No. 43, American Brakeblok 18 Advertisement, Motor Age, April 1950 so marked) 19 MR. CARON: Object to form. 20 Q. Is that an advertisement that's 21 consistent with the type of advertising that 22 Abex did in the 1950s? 23 MR. CARON: Object to form. 24 A. I really couldn't say. I have never EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 181 1 seen this before. I mean, I'm -- you know, 2 certainly it looks like it says American 3 Brakeblok. It says Detroit. It says Brake 4 Shoe. It says NAPA, American Brakeblok Brake 5 Lining. I mean, I don't know what you want me 6 to say about it. 7 Q. Would you agree with me, number one, 8 that the depictions of the name are consistent 9 with the trademarks and other licenses? 10 A. At the time, yeah, those are pretty 11 consistent with 1950s vintage signage, if you 12 will. 13 Q. I wanted to ask you -- I'm going to 14 show you a letter that we'll mark as Exhibit 15 44. 16 (Exhibit No. 44, Letter to Messrs. 17 Challinor, Hubbard, etc., 4.14.77 so marked) 18 Q. This is dated April 14, 1977, and it' 19 a letter from A.P. Schmaltz, S-C-H-M-A-L-T-Z, 20 of the Friction Products Group to a number of 21 different individuals and ask if you've seen 22 that before? 23 A. I have. 24 Q. Now, in that letter there's an EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 182 1 indication that certain customers of Abex did 2 not want to be provided with cautionary 3 information of product hazards, correct? 4 A. Why don't I just read the letter. 5 Q. Okay. 6 A. It says, "We recently decided that the 7 caution information required by OSHA should be 8 imprinted on all of our boxes and carton. Our 9 carton and box vendors have been so notified" 10 -- or "so advised, and this will become a 11 running change. 12 The only remaining boxes and cartons 13 not so imprinted are those made and printed by 14 customer specifications. Attached is a list" 15 -- which is not attached by the way -- "of 16 those involved. We would appreciate your 17 approaching these customers with the fact that 18 caution information is required by law and 19 whether or not they elect to abide by it is 20 their decision. 21 If they do not want this data on their 22 boxes, we would request that they send us a 23 written statement to that effect." The 24 following -- I'm sorry. "The wording which we EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 183 1 propose appear on the box and cartons is as 2 follows: Caution, contains asbestos fibers. 3 Avoid creating dust. Breathing asbestos dust 4 may cause serious bodily harm. Please review 5 this with each of your customers and give us a 6 report advising what we should do." 7 Q. The one customer that you have 8 personal experience with who did not want to 9 have cautionary language placed on your product 10 was Ford, correct? 11 A. That's right. 12 MR. RADCLIFFE: Object to form. 13 Q. So for those shipments that went to 14 Ford, Abex, up until the time frame mentioned 15 in this letter, did not put the cautionary 16 language on there at their request? 17 A. At whose request? 18 Q. At Ford's request? 19 A. No. We managed -- by the time this 20 letter was written the Ford issue was resolved. 21 Q. When was that issue resolved? 22 A. I don't remember exactly, but it was, 23 I think in like '76 or something. 24 Q. What other companies are you aware of EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 184 1 that did not want to be advised of the 2 potential hazards associated with the use of 3 your asbestos linings? 4 MR. CARON: Object to form. 5 A. I don't know of anyone else who 6 objected to us doing it. There were companies 7 -- and I think in the case of Schmaltz, 8 Schmaltz's letter, there were companies that 9 supplied us boxes. So this is simply a letter 10 to them to say, hey, we're requiring that that 11 warning goes on. You need to have it added to 12 your boxes or contact us and we'll work 13 something out, like we'll put the stickers on 14 for you. 15 Q. Do you know when Ford first put 16 warnings or cautionary language on the cartons 17 of brakes that it distributed in the stream of 18 commerce? 19 A. I do not know. 20 Q. Do you have any documents that Abex 21 may use to dispute that the plaintiff decedent, 22 Robert Tavaglione, worked with or was exposed 23 to asbestos using products manufactured, 24 marketed, sold or distributed by Abex? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 185 1 A. No, I do no t. 2 Q. Would you a gr ee t hat duri ng the period 3 of 1 950 through the 19 80s that Abe x sold 4 as be stos -containing br ake lini ngs th at were 5 di st ribu ted througho ut Mas sach uset ts and 6 Co nn ecti cut? 7 MR. RADCLIF FE : Objec t to f orm. 8 A. It's possib le tha t th ey w er e. 9 Q. There wasn' t any geog raph ic limitation 10 of where Abex's prod uc ts e nded up, w as there? 11 Yo u were a nationwid e comp any? 12 A. Right. 13 MR. GEORGE: Give me just o ne second. 14 Q. In your int er roga tory res po nses, you 15 in di cate that Abex h as bee n ad vise d through 16 hi st oric al documents f rom othe r pa rt ies that 17 ce rt ain individuals at Ame rica n Br ak e Shoe and 18 Fo un dry Company or i ts emp loye es w er e members 19 of t he National Safe ty Cou ncil , co rr ect? 20 A. That's right. 21 Q. Do you know the dates tha t those 22 employees were members of that org an ization? 23 A. No, I don't. I do no t. 24 Q. They also -- you indi cate t hat EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 186 1 histor ic al d ocumen ts i nd icat e th at s ome 2 employ ee s of Ameri ca n Br ake Sh oe a nd F ou ndry 3 might ha ve b een tr us te es of th e Na ti on al Safe ty 4 Counci l. Do you k no w wh en? 5 A . In fact, I th in k on e of t he d oc ument s 6 you pr od uced today t al ke d ab ou t on e of o ur 7 execut iv es b eing a t ru st ee. I t hi nk i t was 8 Given, t hat' s the fi rs t I'd se en t ha t. 9 Q . The Indus tr ia l Hygi en e Fo un da ti on? 10 A . I t hink s o. 11 Q . Wha t I'm as ki ng abo ut i s th e Na tiona l 12 Safety C ounc il? 13 A Don 't kno w. 14 Q. Do you know what type of organization 15 the National Safety Council is? 16 A. It is or was or -- well, I'm really 17 not sure. I'm really not sure what their 18 charge or charter was. 19 MR. GEORGE: Why don't we go off for 20 just two minutes. 21 THE VIDEOGRAPHER: The time is now 22 3:39 p.m. Going off the record. 23 (Recess 3:38 p.m. to 3:44 p.m.) 24 (Exhibit No. 45, Advertisement, EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 187 1 Commercial Car Journal, February 1968 so 2 marked) 3 THE VIDEOGRAPHER: The time is 3:44 4 p.m. We're back on the record. 5 BY MR. GEORGE: 6 Q. I put before you -- I'm going to 7 switch -- an advertisement I've marked as 8 Exhibit 45. This is from Commercial Car 9 Journal February 1968. And it says, "Why we're 10 No. 1 in safety"? 11 A. And it talks about how American 12 Brakeblok has more heavy-duty original 13 equipment applications, heavy-duty meaning 14 commercial vehicles. And Abex engineers who 15 also make brake materials for jet planes work 16 on their brake linings for their trucks and 17 buses and earth moving equipment. It's just a 18 broad here's all the things we can do. 19 Q. As of 1968 at least in this 20 advertisement when it has the NAPA and American 21 Brakeblok what it's referring to is Abex, 22 correct? 23 MR. CARON: Object to form. 24 MR. RADCLIFFE: Object to form. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 188 1 A. I'm not sure I understand your 2 question. 3 Q. It' s certainly not referring to 4 American Bra keblok as a service mark for 5 another corp oration? 6 MR. RADCLIFFE: Object to form. 7 A. It' s referring to American Brak 8 the mark that we let NAPA use. 9 Q. Okay. But it was referring to the 10 company itself? 11 A. No, I d on 't b eliev e i t is . 12 Q. Whe n it s ays , "Ame r ic an B ra ke bl ok h as 13 be en Amer ica 's h ea vy- d uty s a fe ty b ra ke l in in g 14 fo r over 40 ye ar s, " i t 's re f er ri ng t o? 15 A. Yea h, i n tha t case in t he c on te xt o f 16 th e text, it 's r ef err i ng to Amer ic an B ra ke bl ok 17 th e corpo rat io n. But the a d i s a NAPA Ame ri can 18 Brakeblok ad. And in 1968 the company's name 19 was Abex, not American Brakeblok. 20 Q. But you used the American Brakeblok 21 trade name in certain applications throughout 22 the 1960s, correct? 23 A. There was a point in time when it was 24 analogous to the company name. After that EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 189 1 point then the trademark American Brakeblok was 2 essentially loosely assigned to NAPA. 3 Q. In 1968 in this advertisement there is 4 underneath the American Brakeblok NAPA symbols 5 in parenthesis American Safety Brake Lining for 6 over 40 years. That is a phrase that's 7 associated with American Brakeblok Abex 8 products, correct? 9 A. Yes. 10 Q. Okay. That's your service mark, 11 correct? "Yours" being Abex? 12 A. I can't say that. I'm not sure if 13 that was assigned to NAPA as well, but it 14 certainly implies the use of Abex brake lining. 15 Q. In your interrogatories you were asked 16 about the trade names of the various products 17 that were used by Abex and its various 18 predecessor corporations, correct? 19 A. Yes. 20 Q. This is an interrogatory that you've 21 been asked in prior cases, correct? 22 A. Yes. 23 Q. Now you indicate that the American 24 Brakeblok as -- the first year registration of EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 190 1 use was 1938, correct? 2 A. I believe tha t to b e the case, yes, 3 sir. 4 Q. And Abex, the first year of registered 5 use was 1941? 6 A. Can I see tha t, ple ase? 7 Q. Sure. 8 A. It seems a li ttle e arly to me but 9 okay. 10 Q. Now, both tho se tra de names were used 11 simultaneously through out th e '40s, '50s and 12 '60s, correct? 13 A. Yes. 14 Q. Do you know t he las t date that the 15 trade name American Br akeblo k was last used to 16 indicate a product tha t was manufactured by 17 Abex or one of its pre decess or corporations? 18 A. I do not know 19 MR. RADCLIFFE : Obj ect to form. 20 Q. I want to sho w you one last 21 advertis ement from wha t we'l l mark as 46. This 22 is from Commercial Car Journ al July of 1966. 23 (Exhibit No. 46, Ad vertisement, 24 Commercial Car Journal , July 1966 so marked) EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 191 1 Q. And among the products listed for NAPA 2 is thick blocks and heavy-duty linings. Do you 3 see that up in the - 4 A. Yes. 5 MR. CARON: Object to form. 6 Q. First of all, was this the type of 7 advertisement that would have appeared in the 8 1960s? 9 A. I've never seen an advertisement like 10 this before. 11 Q. The way that American Brakeblok is 12 depicted in that advertisement, does that lead 13 you to believe that they were referring to an 14 Abex lining as opposed to some generic service 15 mark lining? 16 MR. CARON: Object to form. 17 A. No, I believe it's for an Abex 18 produced heavy truck commercial brake lining 19 product. 20 Q. It even indicates where that lining is 21 going to come from, correct? 22 A. No, it doesn't. 23 Q. Well, it indicates where it's 24 produced, underneath? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 192 1 A. No, it doesn't. 2 Q. Doesn't give an address? 3 A. It says, "American Brakeblok Division, 4 Birmingham, Michigan." We had no manufacturing 5 facility or warehouse in Birmingham, Michigan. 6 Q. Did you have any sort of distributor 7 or other entity in Birmingham, Michigan? 8 A. Not that I know of. 9 Q. Okay. 10 MR. GEORGE: I have nothing further. 11 Thank you. I appreciate your time. 12 THE WITNESS: Sure, you bet. 13 MR. RADCLIFFE: Do you have any 14 questions? 15 MR. CARON: I'm going to look at my 16 notes for a minute. I don't think I'm going to 17 have much, if anything. 18 MR. RADCLIFFE: Anybody have any 19 questions on the phone? You don 't have to say 20 no questions If you have them, speak up. 21 Let s go off the record . 22 THE VIDEOGRAPHER: The time is now 23 3:50 p.m. Let's go off the record. 24 (Recess 3:50 p.m. to 4:00 p.m.) EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 193 1 THE VIDEOGRAPHER: The time is now 2 4:01 p.m. We're back on the record. 3 EXAMINATION CONDUCTED 4 BY MR. CARON: 5 Q. Good afternoon, sir. My name is Jason 6 Caron. I represent Genuine Parts Company. I just have a few short questions to try to 7 8 clarify some of your testimony. The first, as 9 I understand it, and I think you testified that some brakes were sold through NAPA using the 10 11 American Brakeblok name that didn't contain 12 linings that were supplied by Abex. Is that - 13 A. Well, yeah. Q. -- accurate? 14 15 A. Just to kind of get the terminology 16 straight, we never sold brakes. We sold brake 17 lining. 18 Q. Agreed. Thank you for correcting me. 19 A. Sure. And it is my contention that 20 while Abex had a significant amount of NAPA, 21 Genuine Parts, Rayloc, whatever entity you want 22 to call it, business, there were purchases of 23 brake lining from other brake lining companies 24 other than Abex. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 194 1 Q. Okay. And understanding ther e were 2 purchases from other companies, purcha ses of 3 brake linings from other companies, is it your 4 contention that those brake linings pu rchased 5 from other companies were incorporated into 6 brakes that were sold using the Americ an 7 Brakeblok name as opposed to some othe r brand name or trade name? 8 9 A. It's a fine point. We never contended 10 or alleged that NAPA's organization wo uld have 11 put American Brakeblok on the actual f riction 12 product, but it might have been includ ed in a 13 product offering that was in a brochur e, let's 14 say, that was entitled American Brakeb lok. 15 Q. I guess what I'm getting at i s this: 16 Do you have any evidence that a brake that came 17 in a package that had the American Bra keblok 18 name somewhere on it contained linings other than those supplied by Abex? 19 20 A. No, I don't. Q. You talked about the American 21 22 Brakeblok name being assigned to NAPA? 23 A. I said loosely assigned. I d on't 24 think there was a legal assignment of the mark. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 195 1 Q. Okay. Was there any sort of written 2 agreement reflecting that assignment? 3 A. I don't believe so. 4 Q. Okay. Was this just a verbal 5 agreement? 6 A. Yeah. There were a lot of -- I mean, 7 NAPA, Genuine Parts and Abex were, quote, old corporate friends going back to the beginning 8 9 of time. And there were a lot of handshake 10 kind of deals, and I think that was the way that GPC and Abex did business for many, many 11 12 years. 13 Q. Okay. When -- if you answered this, I 14 apologize. When did NAPA's use of the American 15 Brakeblok name begin? 16 A. I don't know. 17 Q. Do you know -- to the extent this was 18 a verbal agreement, do you know any of the 19 people that had the conversations? A. Steve Conway would have been the one 20 21 that I would have relied on. Q. Can you tell me who Steve Conway is? 22 A. He was the president of Abex 23 24 ultimately. He was the VP of sales for Abex EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 196 1 Friction. He was on the railroad side of the 2 business for a number of years. He became 3 ultimately president of Abex Friction Products 4 and then president of Abex Corp. 5 Q. Okay. I think you said that there was a verbal agreement not to use the American 6 7 Brakeblok name elsewhere, and by that I took to mean that Abex wasn't going to use the American 8 9 Brakeblok name elsewhere? 10 A. Right. 11 Q. Is that true? 12 A. Yes. Q. Who was that verbal agreement between? 13 A. I think it was Conway and I'm not 14 positive, but I think it would have been with 15 Wilton Looney, is I believe his name or I 16 17 believe he's deceased now. But I think at the time Mr. Looney was either the chairman or 18 19 president of Genuine Parts. 20 Q. Okay. Do you know when this verbal 21 agreement took place? A. No. I think it you, know predated, me 22 23 being involved in management, early '70s, late 24 '60s perhaps. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 197 1 Q. Will you agree with me that you don't 2 have any personal knowledge of this verbal agreement, right? You weren't there? 3 4 A. Well, only that Conway, you know, when I got into more of a management role and less 5 of an engineering role, you know, Mr. Conway 6 sat me down a number of times explaining kind 7 of the relationship, the long-lasting 8 relationship between NAPA and Abex. And, you 9 10 know, things that, you know, we just didn't do. These were our friends, and we weren't going 11 to, you know, sell product that we sell to NAPA 12 13 to somebody else and, you know, that sort of 14 thing. 15 Q. Will you agree with me that to the extent there was a verbal agreement, your 16 knowledge of it comes from your discussions 17 with Mr. Conway? 18 19 A. Yes. Q. You don't have some independent basis? 20 A. No. 21 Q. Now I understand there may have been a 22 verbal agreement for Abex not to use the 23 24 American Brakeblok name independently of its EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 198 1 relationship with NAPA, but do you know one way 2 or the other whether Abex actually did use the 3 American Brakeblok name on products that it 4 sold through channels other than Genuine Parts Company or NAPA? 5 A. I think many years ago certainly 6 because American Brakeblok was the name of the 7 8 company, so it would only stand to reason that we would have sold product branded American 9 10 Brakeblok to people other than NAPA. But there was some point in time during my tenure that we 11 12 didn't use the American Brakeblok mark on 13 anything other than products that we sold through 14 NAPA. 15 Q. Okay. And did that change? You said 16 it just happened during your tenure so after - 17 A. During my tenure. It happened 18 sometime before that; I just can't tell you 19 when. 20 Q. As of -- I think you said you started 21 71, corre ct? 22 A. 1970, right. 23 Q. As of 1970 and going forward, you 24 don't know of an instance in which Abex used EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 199 1 the American Brakeblok name other than through 2 the Genuine Parts Company or NAPA distribution? A. No. And I would qualify that to say 3 4 for passenger cars or light trucks. We may have used the American Brakeblok name on some 5 6 select heavy-duty products. Q. Okay. Do you believe you did? 7 8 A. I'm not positive. Q. And I know you don't have personal 9 knowledge of this, but prior to 1970, do you 10 have any knowledge from any source of how long 11 12 Abex was continuing to use the American 13 Brakeblok name on products it sold other than 14 through a Genuine Parts Company or NAPA 15 network? 16 A. I don't know for sure. I know that I 17 can frame out some things. There were some 18 real ly heavy expen sive advertising programs 19 done to build the alliance between NAPA and 20 Abex that go into the early '60s. 21 And it wa s -- in fact, I remember specifically it used Ronald Regan as a 22 spokesperson, and that was the first -- the 23 24 oldest thing that I saw that really linked the EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 200 1 American Brakeblok brand to NAPA. 2 Q. Okay. I think you said at some point that Abex had a 35 to 40 percent share of 3 4 Genuine Parts Company brake lining business? A. It could have been higher at some 5 6 points in time. Market shares that I remember typically were around, you know, mid 30s. 7 8 Q. Okay. 9 A. We always strived to get more but for 10 whatever reason we couldn't. Q. Let me ask first: When we're talking 11 -- when you said 35 to 40, was that during your 12 tenure? Was there a particular decade you 13 associate that with? 14 A. I'd say during my tenure, from, you 15 know, the mid '70s until I sold the company in 16 17 1994. 18 Q. Okay . How wo ul d yo u de te rmin e that 19 numbe:r? How d id you k no w ho w mu ch -- 20 A. Well , marke t sh ar es wer e alwa ys , you 21 know, kind of reason ab le e st imat es usi ng some 22 form of analyt ics, b ut a t be st t he y we re 23 educated estimates. 24 Q. All right. You mentioned that Genuine EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 201 1 Parts Company had other suppliers of brake 2 linings. You gave us a list of a few that you knew? 3 4 A. Right. Q. Generally speaking, what's the basis 5 6 of your knowledge of those other suppliers? A. Again, NAPA was one of our largest 7 8 customers. They were one of our most important 9 customers. They were, you know, talked about 10 big time by our senior management staff. They got the white-glove treatment by us in terms of 11 12 sales coverage. 13 Any issue that came up an appropriate 14 representative from our company would go in. Oftentimes it was me, being in the quality 15 16 assurance department, whether it was a brake 17 noise issue or gee, we found some dust in the 18 box or whatever. 19 So, I mean, I used to go to Rayloc 20 Atlanta, you know, very, very often. I've 21 probably been to, you know, Payson, Utah, 22 Morganfield, Kentucky, and Hancock, Maryland, 23 more times than I can remember. Q. Then based on that would it be fair to 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 202 1 say that your knowledge of the identity of 2 Genuine Parts Company's other suppliers comes 3 from discussions with people at Genuine Parts 4 Company or NAPA? 5 A. Yeah. And also some Abex people. I 6 mean, there we re times when we 'd get a call 7 from, you know , one of our sal es guys that 8 said, hey, you know, I was in a NAPA jobber, 9 and he had a bunch of Raybestos stuff in there. What's going on? 10 11 Q . I j us t want to re fe r yo u to Exhib it 39 12 re al ly q uick ly , and I wo n' t go t hrou gh eve ry 13 si ng le d ocumen t, but you w er e sh own se vera l 14 do cume nt s of s ome -- wha t lo ok ed lik e some 15 ad ve rt is emen t ma teri als, o ne w it h th e pict ure 16 of a g un on it a nd a noth er w it h dyna mi te? 17 A . Right . 18 Q . Wil l yo u ag ree wi th me that t he 19 dang er s that t he se a dver ti si ng mater ia ls a re 20 addr es si ng a re d ange rs o f br ak e fail ur e fr om 21 no t ha vi ng t he b rake s ma in ta in ed prope rly? 22 A . Abs ol ut ely. 23 Q . Thi s ha s no thin g to d o with a sbes tos? 24 A . Abs ol ut ely not. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 203 1 Q. I 'd like to ref er you t o Ex hi bi t 44 2 wh ic h wa s -- I may h ave lost i t. I ap ol og iz e. 3 MR. CARON : Exh ibit 4 5 is a l et te r or 4 me mo . I s it over th ere? 5 Q. Y ou were sh own -- I d on 't k no w ho w far 6 I ca n wa lk w ith th is mic roph on e. Yo u we re 7 sh own th at memo ea rl ier, and I t hi nk i t 8 re fe renc es i n the fi rst para gr aph th at 9 cu st omer s an d vend or s we re mad e aw ar e of - - I'm rry -- 10 so 11 A. P ar ts and c arto n ve nd or s had al so b een 12 ad vi sed wh at it wa s refe rrin g to . 13 Q. D o you ha ve any -- ot he r th an t ha t 14 st at emen t, d o you ha ve a ny k no wl edge t ha t 15 Ge nu ine Pa rt s Comp any or NAPA wa s ac tu al ly 16 ad vi sed as t hat fi rs t pa ragr aph re fe re nc es ? 17 A. W el l, it re ally wou ld n' t ha ve a pp li ed 18 to NAPA be ca use we s hipp ed t o NAPA i n bi gg er 19 bo xe s th at w ould h av e hu ndre ds o r 50 p ie ce s of 20 br ak e li ni ng , and th en NAPA wo ul d -- o r Rayl oc 21 wo ul d pu t th em on th eir prod uc ti on l in e, t ak e 22 th em out o f the bo xe s, r ivet t he m th ro ugh a 23 br ak e sh oe a nd sen d them on. 24 Q. So -- EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 204 1 A. We're talking about, in this case, set 2 boxes which would have been labeled with the 3 warning. 4 Q. So that - 5 A. This letter has absolutely nothing to 6 do with NAPA, nothing whatsoever. In fact, there's some handwritten annotations on here, 7 Volkswagen, Alfa, which means mean Alfa Romeo, 8 and Renault, those were some of the customers 9 10 that were supplying boxes to us for packaging. 11 Q. You talked before about edge codes. And without going into that in too much detail, 12 was that something that was applied to a brake 13 lining prior to it being shipped by Abex? 14 15 A. Yeah. The brake lining manufacturer 16 was the person responsible to put edge codes on 17 them. 18 Q. And was the edge code on every brake 19 lining that went out? 20 A. Well, it should be. You know, we did 21 see, from time to time, product in the aftermarket from, let's call it, lesser quality 22 23 suppliers that didn't have any coding on it. 24 MR. CARON: Sir, I think's all I have. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 205 1 Thanks for your time. 2 THE WITNESS: You bet. 3 EXAMINATION CONDUCTED 4 BY MR. RADCLIFFE: 5 Q. Mr. Indelicato, I've got a couple of 6 questions for you. As you know my name is Tom 7 Radcliffe. I'm going to try to cover a number 8 of the issues that Mr. Smith covered with you earlier so -9 10 MR. GEORGE: Mr . George. 11 MR. RADCLIFFE: Excuse me, Mr. George 12 I apologize. 13 GEORGE: MR. No problem. 14 Q. I may bounce around a little bit. 15 A. Okay. 16 Q. First of all, you're the president for 17 Abex right now? 18 A. I am. 19 Q. Does Abex have any operating 20 facilities? 21 A. No, it doesn't. 22 Q. Are there any employees of Abex? 23 A. No. 24 Q. Are there any other officers of Abex? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 206 1 A . I'm the only on e. 2 Q . Oka y. And wh en i s th e last time that 3 Ab ex w as inv olve d wi th t he manuf acture of a 4 fr ic ti on mat eria l? 5 A . It woul d ha ve b ee n some time in 1994. 6 Q . And whe n wa s th e last t ime that Abex 7 wa s invo lved wit h th e ma nu fact ur e of friction 8 ma te ri al s th at c onta in ed a sbes to s? 9 A . 198 7. 10 Q . You wer e as ke d qu esti on s from Mr. - 11 by M r. Georg e ab out sa fe ty bei ng an important 12 co nc ep t, pri mary con ce rn . Do yo u remember 13 th os e types of q uest io ns ? 14 A . Abs olut ely. 15 Q . And whe n Ab ex w as con ce rned with the 16 sa fe ty o f it s fr icti on mat eria ls , tell me some 17 of t he c once rns that Abe x had? 18 A . Fir st a nd f or emos t, w as would it 19 sa fe ly s top a ca r. And no t on ly in terms of 20 st oppi ng dis tanc e, b ut w ou ld r ep eated brakings 21 ca us e th e br akes to fa il ? Wou ld it cause the 22 ca r to p ull in o ne d ir ec ti on o r another? Would 23 th e lo ng evity of the b ra ke lin in g be 24 sa ti sf ac tory ? W ould c us tomers c omplain about EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 207 1 the noise coming from brakes? But first and 2 foremost was safely stopping the vehicle; that's what the business was all about. 3 4 Q. Did Abex make a friction material that 5 could safely stop vehicles? A. Absolutely. That was the nature of a 6 7 lot of those ads where there were bullets and things. It was really trying to, you know, get 8 your attention and say, look, you know, safe 9 10 braking system is very important. Q. I'm going to come back to those ads. 11 Did Abex use quality material in the 12 13 manufacture of a friction term? 14 A. The best we could procure. Q. You've already testify that asbestos 15 16 was used in some friction materials. Why was 17 asbestos used in some friction materials in the 18 past? A. Because we couldn't come up with a 19 satisfactorily safe product that met customers' 20 21 requirements without using asbestos. Q. Let's take 1975, was there an ability 22 to produce a friction material to stop an -- I 23 don't think we had minivans in 1975, did we? 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 208 1 A. If we did we probably could have come 2 up with something. No. In the '70s we made some semi-metallic brake lining that worked 3 4 really well for severe-duty applications, but 5 mom driving to the grocery store wouldn't have 6 been a happy camper. Q. So could you have done something 7 without asbestos - 8 9 A. No. Q. -- at that time? 10 A. (Witness nods) 11 12 Q. Who are Abex's customers? A. They were primarily brake 13 manufacturers, what we term in the business as 14 foundation brake manufacturers that would make 15 the physical mechanical brake, its actuation 16 system, the rotor, the drum, the caliper, wheel 17 cylinder and kind of all the mechanical 18 components that the brake lining would go into 19 20 to fit into an axle and ultimately onto a 21 vehicle. 22 Q. Did these customers know about brakes? 23 Were they sophisticated companies when it came 24 to understanding how brakes worked? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 209 1 MR. CARON: Object to form. 2 A. Very ch so. I mean , there were 3 va ry in g deigrees I thi nk, you know, when you 4 lo ok ed at compa ie s lik e R ockw ell and Eaton on 5 th e he avy- duty id e or For d on the passenger 6 ca r si de, GM ha t he ir own bra ke lining 7 bu si ne ss, so th y we re pre tty knowledgeable 8 fo lk s. There was a very high level of 9 10 expertise. In fact, we used to rely a lot on people at Ford that had probably the best brake 11 12 engineering laboratory on the planet. You 13 know, rebuilders, a little less sophisticated 14 but nonetheless knew a lot about brake systems 15 because they supplied all the componentry that 16 was required to safely stop a vehicle. Q. When Abex was making a friction 17 18 material, were there specifications for the material? 19 20 A. It varied. The original equipment 21 manufacturers would be very, very specific in 22 their specifications. The aftermarket guys a 23 little less so, but they would, nonetheless, 24 specify a particular formula. And oftentimes EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 210 1 they would rely on engineering data or test 2 data that we supplied them, and then they would 3 augment it with their own testing. 4 Q. Did Abex perform tests and analysis on its friction material? 5 6 A. Yes. We had an engineering test center which was the size of a few football 7 fields filled with machines call dynamometers 8 that simulate braking in a laboratory 9 10 environment. And we also ran a fleet of test vehicles around the entire country and for 11 different things, mountain testing, traffic 12 13 testing, that sort of thing. Q. You were asked a lot of questions that 14 dealt with asbestos and not necessarily 15 16 asbestos in friction materials. Do you recall some of those questions? 17 18 A. Yes. Q. The fact that asbestos could be 19 hazardous to people like an insulator or a 20 shipyard worker or textile worker, does that 21 mean that asbestos is hazardous once it's put 22 into a friction material? 23 24 MR. GEORGE: Object to form both to EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 211 1 leading and to lack of foundation. 2 A. It's my strong opinion that it's an 3 entirely different animal. The people that 4 worked at the mines up in Quebec versus the people that processed the asbestos rock into 5 fibers and then in varying degrees through our 6 manufacturing environment, the guys that opened 7 the bales of asbestos were probably at a higher 8 9 level of concern to us. And, consequently, we had more dust 10 11 collection in that area of our plant than the folks further downstream once the asbestos 12 fiber got mixed with other ingredients, so its 13 14 concentration was down. It was coated with polymers, and it was held together with other 15 16 things. It was finally compression molded or 17 extruded to make essentially a nonfriable article where the fibers themselves were pretty 18 19 well tied up. 20 MR. GEORGE: Move to strike as 21 nonresponsive. 22 Q. Do you believe that the friction 23 materials that Abex manufactured up until 1987 were hazardous to end users? 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 212 1 MR. GEORGE: Ob je ct t o form . L ea di ng 2 A . No. 3 Q . Why not ? 4 A . I t hink there w er e a lot of b as is f or 5 my op i ni on, and it's n ot j us t my opi ni on . I 6 th ink th ere' s a lot of e vi de nc e even , yo u kn ow 7 go ing in to t he 2 000 ti me f ra me , 2004 , 20 06 8 pe rhap s, tha t su ggests t ha t th e amou nt o f 9 as bes t os fib er o r the as be st os wear de br is , in 10 fa ct, ge ts t rans formed t o Fo st erite fo r th e 11 va st maj ority of it. 12 Tha t fi ber le ngth h as a lot t o do w it 13 it . The con cent ration h as a l ot to do w it h it 14 th e t i me -wei ghte d aver ag e. I mean, pe op le i n 15 ou r p l an ts w ere dealin g wi th t his st uf f ei ght 16 ho urs a day, 240 days a ye ar c ompare d to , yo u 17 kn ow, someon e wh o occa si on al ly does a br ak e 18 jo b. 19 So, you know, i t' s do sage, it 's 20 la ten c y, it' s qu antity . I t' s -- the re 's j us t 21 so ma ny fact ors that e nt er i nt o the eq ua ti on 22 th at - - and, you know, I t hi nk that fr om o ur 23 pe rsp e ct ive all along wa s th at while w e had a 24 co upl e o f wo rker s' comp ca se s, you k no w, t he EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 213 1 business, Abex had been in that business since 2 the mid 1920s and never had any appreciable 3 amount of issues. So if people that are 4 dealing with raw fiber and so on aren't having those kinds of problems, why would it be 5 6 reasonable to assume that people further 7 downstream would. That was kind of my view and 8 I think was substantiated by fact. Q. Let's talk about the Abex 9 10 manufacturing facilities for a moment. 11 A. Okay. Q. Winchester in 1965 -- well, Winchester 12 13 in 1970, approximately how many friction pieces a day was Winchester manufacturing? 14 15 A. 30,000 or more per day. Q. And there was grinding there? 16 17 A. There was grinding. There was 18 drilling. There was edging. There was 19 printing. There was packaging, I mean, mixing 20 of raw materials. It was a pretty 21 comprehensive process and had probably at that 22 time around just short of a thousand employees. Q. And we heard a little bit about 23 24 environmental controls, dust collection and EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 214 1 thin gs of that nature. Did thos e controls 2 remo ve every single asbe stos fib er from the 3 envi ronment? 4 A. No. And that's why whe n you see some 5 dust sample studies that weree done over the 6 year s, one was done pret ty much every year, 7 give or take . You know, there w ould be 8 inst anc es where we were in exces s of the TLV, 9 and we, you know, go to work dil igently to 10 impr ove the engineering controls . But it 11 wasn 't a perfect environment W e did the very 12 best we coul d, and I thi nk d id a pretty good 13 job. 14 Q. In addition to dust col lection, what 15 else -- was there any ot her part of the progra m 16 for emp loyee health for look ing after the 17 empl oye es? 18 A. Wel l, if we had an area of the plant 19 that ha d any concern, we wou ld f it employees 20 with appropi iate respira tors and dust masks an d 21 that so rt of thing. We abandone d sweeping wit h 22 a br oom and went with va cuum sys tems. We 23 actu ally had -- we bought a coup le of giant 24 almo st like small city s treet cl eaning machine s EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 215 1 that literally drove around the aisles of the 2 factory all day to keep the environment in good shape. 3 4 Q. All right. Now, again, pardon me for 5 bouncing around. You were asked some questions 6 about Dr. Gardner's work at Saranac. Do you remember that? 7 8 A. Yes. Q. And Exhibit 9 was a memo from Dr. 9 10 Hamlin. I'm going to hand you a slightly 11 better copy. Mr. George asked you some 12 questions. I want to point out some other 13 things. This is dated November 3, 1948, right? 14 A. Yes. 15 Q. The third paragraph, can you read 16 starting with the first sentence? A. "I gain"? 17 Q. No. "While admitting"? 18 19 A. I'm sorry, third paragraph. Q. Can you - 20 A. "While admitting the advisability of 21 22 reconciling the two, it must be remembered that any animal experimentation cannot be absolutely 23 24 conclusive. Observations on the tissue EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 216 1 reactions to various substances can mean 2 nothing more than reasonably accurate 3 supportive evidence that the effect noted is 4 what is likely to occur in man after similar 5 exposure. 6 The report notes that the same result 7 is not always obtained in each species of 8 experimental animals used. It is, therefore, 9 only possible to employee such phraseology as 10 the dust apparently does not alter 11 significantly the course of experimental 12 Tuberculosis in guinea pigs, etcetera. Possibly similar experiment carried 13 14 out over a longer period of time could produce 15 an entirely different result. There are two 16 many intangibles to allow dogmatic or other 17 definitive statements. This is true of any 18 experimental work in animals or humans. 19 The value of the experimental work 20 lies in the fact that it forms a reasonable 21 basis for study of characteristic tissue 22 changes which were similar to those seen in 23 units." 24 Q. Thank you. You've seen this letter EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 217 1 before, right? 2 A. Yes, I have. 3 Q. And your understanding is that this is 4 Dr. Hamlin writing about Dr. Gardner's report? 5 A. Yes. Q. In essence, to your understanding, 6 what did Dr. Hamlin say in terms of the report? 7 A. You can't draw a conclusion from your 8 9 observations without further study. Q. Did Dr. Hamlin, nevertheless, say 10 publish it, don't publish it? 11 12 A. He said publish it. Q. There was evidently a meeting, and I 13 think you were shown a different exhibit, 14 Exhibit No. 9, that Dr. Hamlin was unable to 15 attend the meeting? 16 17 A. Yes. 18 Q. All right. And although Dr. Hamlin 19 was unable to attend -- strike that. 20 Dr. Hamlin was unable to attend. There was a letter from Mr. Brown to Abex to 21 22 give him the results of the meeting, right? 23 A. Yes. 24 Q. That's Exhibit 10. And so -- EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 218 1 A. I'm sorry , is this Exhibit 10? 2 Q. No, the - - yes, the results? 3 A. This is 9 . 4 Q. Yes, the results. And so we went into 5 this a little bit. Mr. George went into it a 6 little bit. There was an agreement of the folks at the meeting that the cancer references 7 8 would be deleted, right? 9 A. Yes. Q. The reasons are given here one, two, 10 three, four, correct? 11 12 A. Correct. Q. Reason No. 2, "Dr. Gardner indicated 13 14 prior to his death that he believed this aspect should be made the subject of a separate study 15 16 which would take from two or three years." Have you seen documents about that? 17 18 A. Yes. Q. And were you aware that Dr. Gardner 19 20 applied for funding? 21 A. I was, and I understand he was denied. 22 MR. RADCLIFFE: Do we have the exhibit 23 labels, Mr. George? 24 MR. GEORGE: I don't have any left. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 219 1 MR. RADCLIFFE: This should be 47. 2 (Exhibit No. 47, National Cancer 3 Council, 1.8.44 so marked) 4 Q. I'm going to hand you Exhibit 47. 5 Have you seen this document before? 6 A. I believe I have. 7 Q. This is the proceedings from the 8 Advisory Cancer Council at the National Cancer 9 Institute; is that right? 10 A. Yes. 11 Q. And it's dated 1944? 12 A. Yes, January 8, 1944. 13 Q. If you turn to the page that's 14 numbered 21 at the bottom? 15 A. Yes. 16 Q. Does it start to talk about an 17 application from the Saranac Laboratory? 18 A. Yeah. It says, "You find under 213 an 19 application from the Saranac Laboratory of 20 Trudeau Foundation in New York." 21 Q. And read the next two sentences. 22 A. "The project is the relationship of 23 asbestos to pulmonary carcinoma. The director 24 of the project is Leroy U. Gardner. The amount EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 220 1 requested is $10,000 for a period of two 2 years." 3 Q. That's the same Dr. Gardner that was 4 doing the test that was discussed yearly, 5 right? 6 A. Yes, sir. 7 Q. And these folks then go on to talk about the test, right? 8 9 A. Yes. 10 Q. Page 23? 11 THE WITNESS: I'm sorry, can you just excuse me for a second? 12 13 MR. RADCLIFFE: Sure. THE WITNESS: I always wanted to have 14 15 that videotaped. 16 MR. RADCLIFFE: We'll see if we can 17 get it taken out. 18 THE WITNESS: Excuse me. I'm sorry. 19 Q. Let's go to page 24? 20 A. Okay. 21 Q. Dr. Murphy, what does he say? 22 A. "You notice he calls it an uncontrolled experiment, so I doubt if he knows 23 24 the normal lung tumor rate for his animals. He EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 221 1 gives 18 percent in 143 animals. It is very 2 hard to get a strain of mice that gives much 3 lower than 3 or 4 percent, and we have some 4 strains that give as high as 50 to 80 percent 5 normality. 6 I wouldn't consider that figure 7 uncontrolled as of any other significance, however, unless I knew the strain of the 8 9 animals. When it was a low strain, and, of 10 course, that is the whole danger in having a project of this kind carried on in an 11 institution where they have absolutely no 12 experience with animals in planning cancer 13 14 experiments." Shall I go on or is that fine? 15 16 Q. No, that's good. All right. Then page 25 if you can find that? 17 18 A. (Witness complies) Got it. 19 Q. Again, this is Dr. Murphy. He speaks of an -- do you see that he speaks of an 20 21 uncontrolled experiment right there in the middle? 22 23 A. "It doesn't mean anything"? Q. Then "Dr. Dyer: An incidence of 81.8 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 222 1 percent in 11 white mice is not very 2 impressi ve"? 3 A. Right. 4 Q. "Dr. Murphy: "It doesn't mean 5 anything "? 6 A. Mean anything. That's what these folks were saying, 7 Q. 8 right? 9 A. That's right. 10 Q. And do you understand that they 11 refused to fund Dr. Gardner for these reasons? 12 A. Yes, that was my understanding. 13 Q. Okay. 14 MR. RADCLIFFE: Let me have that back 15 so we do n't lose it since it's marked. (Witness complies) 16 A. 17 Q. Thank you. 18 A. Sure. So going back to -- did you give me 19 Q. 20 back bot h? Here's 9, and this is the one you said 21 A. 22 was 10. 23 Q. Hold on to that one. Let me have 9 for just 24 a moment. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 223 1 A. Okay. Does this need a label? 2 Q. No, it doesn't. There's another one 3 that's labeled. 4 A. Okay. 5 Q. Grab that one. That's still No. 10. So that was just point No. 2, and point No. 3, 6 "Dr. Gardner also indicated that he believed 7 the question of cancer susceptibility should be 8 9 omitted from the report." Do you see that? 10 A. Yes, I do. Q. And have you seen other correspondence 11 12 where Dr. Gardner, the author of this report, 13 actually said, I think it should be omitted. A. I thought I saw some of Gardner's 14 15 colleagues say that it should be omitted. 16 Q. Okay. Well, I was - 17 A. I might be mistaken, but there were folks at Saranac that I remember seeing some 18 19 documents that suggest that it should be 20 omitted. 21 Q. That's fine. I was unable to print the document, so we'll just have to deal with 22 23 that later. So to sum up Saranac, what was 24 Abex's position on publication of the document EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 224 1 with cancer? 2 A. We made some comments, but we said, 3 hey, you know, if you want to publish it the 4 way it is, that's fine with us. Q. What was the position of the other 5 6 folks who sponsored the study? 7 A. They wanted it out. They wanted more 8 significant change to the document. Q. And did they give reasons for that? 9 10 A. I believe they did. Q. Have you seen documentation to support 11 12 the reasons they gave? 13 A. Yes. 14 Q. Okay. You were asked questions about 15 whether Abex should warn of all potential 16 hazards of brakes. Can you give me an idea of 17 what you considered to be a potential hazard of 18 brakes or friction materials? 19 A. I mean, perhaps a logical place to 20 start is potentially if the brakes don't work, 21 you're going to crash into the car in front of 22 you. Perhaps if you go down a hill too fast 23 and repeatedly stand on your brakes without 24 allowing them to cool, the brakes will fade and EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 225 1 fail. Perhaps you should inspect your brakes 2 at some regular interval to be sure that 3 they're adequate. I mean, there's so many 4 potentials; I don't know where to start or 5 stop, frankly. Q. So is it -- which is more accurate to 6 say; that Abex should warn of all potential 7 hazards or Abex should warn of hazards that are 8 foreseeable and likely under the circumstances? 9 10 MR. GEORGE: Objection to form. 11 Leading. A. Foreseeable and likely would be 12 13 infinitely more logical than any potential. 14 Q. You were asked some questions about 15 warnings before. I'll give you Exhibit 48. 16 (Exhibit No. 48, Letter to L.W . Moore so marked) 17 5.20.75 Q. Have you seen this document before? 18 19 A. I have. Q. What's the date? 20 A. 21 May 20, 1975. Q. And who is the author of the letter? 22 A. Harry Jones, sales 23 manager for Abex. Q. Did you know Mr. Jones? 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 226 1 A . I did. 2 . And who is the recipient? Q 3 A . Mr. Moore of Rayloc who at the time 4 was ei ther sales manager or sales VP for Rayloc 5 NAPA. . Did you know Mr. Moore? 6Q 7 A . I did. . The letter reads, "The other day" - 8Q 9 this i s Abex writing to Rayloc. 10 A . Right. 11 Q . Is Rayloc part of Genuine Parts? 12 A . Yes. 13 . Q The lette r reads, "The other day I 14 read i n the Wall S treet Journal where Raybestos 15 was be ing sued by 168 employees due to the fact 16 that t hey were not properly notified of the 17 hazard s of working around asbestos. As you 18 know, we stencil our segment boxes as a warning 19 of the hazards as follows: Caution, contains 20 asbest os fibers, avoid creating dust. 21 Breath ing asbestos dust may cause serious 22 bodily harm." With me so far? 23 A . Absolutely. 24 Q . What does that mean that you were EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 227 1 stenciling the segment boxes? 2 A. When Abex first started putting warnings on boxes, it started out in a very 3 4 simplistic way. They had big rubber stamps 5 made, and the boxes were stamped. And then on 6 larger boxes they actually used a stencil. We had a machine that would make up a 7 8 stencil. We may have used them as kids, and 9 then you take kind of a brushy article and 10 stencil on the box. So that evolved ultimately 11 to the boxes being preprinted with this warning as was referenced in Mr. Schmaltz's memo that 12 13 we talked about a few moments ago. Q. The letter goes on to state, "I know 14 15 you have taken steps to protect your people. However, it comes to mind that you may have 16 17 some responsibility to your customers and might 18 consider including the same caution on your 19 boxes or labels. This could also be used as 20 another strong reason for discouraging field grinding of brake shoes by the jobbers and/or 21 brake shops?" 22 Is that consistent with what you 23 24 understand Abex was saying to its customers in EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 228 1 this ti me frame, 1975? 2 A. Yes. 3 Q. There's a -- further down there's a 4 BCC. o you see that? D 5 A. I do. Q. 6 It says R.G.? 7 A. Lindley. 8 Q. Lindley? 9 A. Yeah. Q. Who is that? 10 11 A. Bob Lindley was a sales manager 12 respons ible for rebuilders other than NAPA and 13 GPC. 14 Q. Okay. Let me take that from you so I 15 can put it in the pile of all these other 16 exhibits? Sur 17 A. e. 18 Q If some one working at a gas station 19 called Abex and said, I need a set of brakes, 20 not friction material, but a set of brakes for a car, what would Abex have said? 21 22 A. You've got the wrong number. I mean, 23 chances are the recept ionist would have handled 24 it and just expl ained to them that we didn't EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 229 1 sell retail. We didn't sell brakes. We sold 2 just brake lining, and we didn't sell to 3 consumers. 4 Q. Would that have been true in the '60s 5 and '50s? 6 A. Yeah. As far as I know, we never, ever made brakes for passenger cars or light 7 8 trucks or heavy trucks. Q. The advertisements that you were 9 10 shown, there was a gun, a revolver, I think. 11 There might have been some dynamite. Do you 12 remember those? 13 A. I do. Q. If it's argued that Abex could have 14 15 used that same sort of advertising to warn folks about the hazards of asbestos, not the 16 hazards of asbestos generally, but the hazards 17 of asbestos specifically with regard to brakes, 18 19 do you think that would have been an 20 appropriate way for Abex to communicate the 21 warning to its customers? 22 MR. GEORGE: Objection to form. 23 Leading. Calls for speculation. Lack of 24 foundation. Argumentative. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 230 1 MR. CARON: I'm going to join a ll of 2 those. 3 A. No, I don't think that would be an 4 appropriate forum to educate people abou t 5 anything. 6 Q. And, again, were Abex's custome rs 7 skilled and knowledgeable in brakes and how 8 they were remanufactured or manufactured and 9 what functions the various parts of the brake system performed? 10 11 A. Yeah. 12 MR. GEORGE: Objection. Leadin g. 13 Asked and answered. 14 MR. CARON: Form. 15 MR. RADCLIFFE: I think those a re all 16 the questions I have for you. Thank you 17 THE WITNESS: Okay. EXAMINATION CONDUCTED 18 BY MR. GEORGE: 19 20 Q. I just wanted to ask you a coup le of 21 questions about some of the documents th at Mr. 22 Radcliffe showed you. Let's go back to the 23 proceedings which I believe is Exhibit 4 7. 24 First of all, this is not the c omplete EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 231 1 proceedings, correct? 2 A. No, it's not. 3 Q. When is the first time you saw this 4 document? 5 A. Probably a month or so ago. Q. This isn't a document that came out of 6 7 Abex's files, is it? A. No. I believe it kind of came about 8 9 as a result of some other litigation we were 10 involved with. Q. You got this from your attorneys? 11 12 A. I did. 13 Q. Okay. Because on page one where they 14 have the people that were present during this 15 meeting, none of those are Abex employees, are 16 they? 17 A . I don 't b elieve so. 18 Q . Okay. I just wanted to ask you, you 19 re ad s ome port ions of the document. I want to 20 tu rn your atte ntio n to page 23 wherein Dr. 21 Mu rphy sa id -- and just tell me if I read that 22 co rrec tly -- "Thi s is the first time I have 23 se en t his appl icat ion. I think it is bringing 24 a very bi g gun to bear on a subj ect that will EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 232 1 probably be settled in a very short time with a 2 very slight expenditure of money." Isn't that what he said according to 3 4 this transcript? 5 A. More or less, yeah. Q. He said, "I believe the question can 6 be settled in one comprehensive experiment with 7 8 a modest outlay of cost. It is a problem that 9 you could do here, for instance, at a cost of 10 perhaps $20 or $30. I think we are hardly justified in appropriating $10,000 for it in a 11 laboratory that isn't experienced in cancer 12 13 research or in handling this particular type of 14 material." That's what he says, right? 15 16 A. Yeah. Q. So, in fact, the reason why -- one of 17 18 the reasons why they declined this application 19 is not because they didn't think it was 20 worthwhile to investigate whether cancer is a consequence of exposure to asbestos, but rather 21 because Dr. Gardner was simply asking for too 22 much money to perform the experiment? 23 A. Well, I think it further -- 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 233 1 MR. RADCL IF FE: Obj ec t to fo rm . 2 A . -- it imp li es t o me t ha t the y als o had 3 questi on abo ut his e xpe r tise i n me tho do logy. 4 Q . Wel l, isn 't th e re a ls o -- 5 A . It sa ys, "I sn' t exp er ie nc ed in ca nc er 6 resear ch " So you c an, you kn ow , you c an sa y 7 it's t oo exp en sive . I s ay e qu al ly as i mpo rt ant 8 they d idn't have confidence in the guy that was 9 making the pitch. . Dr. Hektoen was talking on page 21, 10 Q 11 correc t? 12 A . I don't know. Hang on a second. 13 Q . And that's H-E-K-T-O-E-N? 14 A . Yes. 15 Q . He says on page 22 that he reviewed a letter from Dr. Gardner, correct? 16 . I'm sorry, where are you? 17 A 18 Q . Page 22? 19 A Secon d pa ragraph, " In a let ter from 20 Dr. Ga ner."? 21 Q Corre ct . 22 A Okay. 23 Q And t ha t apparent ly is some thing that 24 went a ng wit h th e applic at ion, cor rect? EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 234 1 A. I presume. 2 Q. And he said that "Dr. Gardner wrote 3 that I've always felt that asbestosis probably 4 created" -- and then somebody hand wrote in there "no specific predisposition to pulmonary 5 6 cancer. However, evidence to the contrary 7 continues to accumulate. In the last number of 8 the American Journal of Pathology, Homberger reports 19 new cases making a total of 19 in 9 10 which the conditions were associated." When he's talking about conditions 11 associated, he's talking about asbestosis and 12 lung cancer, correct? 13 14 MR. RADCLIFFE: Object to form. 15 A. I don't know. You know, again, when 16 somebody stroked this, wrote the word "no" in 17 there. I don't know what it means, I really 18 don't. 19 Q. He's talking about the asbestosis 20 probably created no specific predisposition to 21 pulmonary cancer. This whole paragraph deals 22 with and, in fact, Dr. Gardner's application 23 deals with whether asbestosis predisposed one to cancer, correct? 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 235 1 A. Right. 2 Q. Okay. And Dr. Gardner in proposing 3 this experiment concludes in his letter, "For 4 this reason I do not believe we can afford to 5 neglect the matter much longer." That's what his letter was purporting 6 to say, correct? 7 8 A. Yes. Q. I did want to ask you one clarifying 9 question about -- well, let me just turn to 10 11 page 24 of the same transcript. You referenced Dr. Murphy's comments, and isn't it true that 12 on page 24 Dr. Murphy says, his concluding 13 sentence is, "It may be well worth doing, but I 14 15 doubt if this is quite the way to do it." 16 A. It does say that. 17 Q. Okay. Now, I want a clarification on 18 this issue of the American Brakeblok trademark 19 and whatever assignment was made to NAPA. 20 If in 1960 an individual went to a 21 NAPA store and purchased a set of brakes that came in a carton that had American BrakeBlok's 22 23 name on it, would that set of brakes more 24 likely than not be composed of linings that EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 236 1 were manufactured by Abex or one of its 2 pred cessor entities? 3 MR. RADCLIFFE: Object to form. Also 4 it's beyond the scope of cross. 5 MR. CARON: Objection. 6 A. First of all, there's two parts to 7 your question. I don't know that they would 8 have come in a box back in 1960, and, number 9 two, if they did come in a box that said 10 Amer Loan Brakeblok, it's most plausible that 11 the rake lining was made by Abex. 12 Q. Okay. Same thing, 1970s, assume 13 some ody went into a NAPA store in the 1970s. 14 They purchased a set of brake shoes that were 15 in a box, and on the that box was written 16 Amer Lcan Brakeblok. More likely than not would 17 you gree that the linings of those shoes were 18 prob bly manu factu re d by Abex or one o f its 19 pred cess or e ntiti es ? 20 MR. RADCL IF FE: Same obj ect io n. 21 MR. CARON : Obj ect to fo rm. 22 A. Prob ably. 23 Q. Are you s ay ing more l ike ly th an not 24 that it was -- EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 237 1 A. I'd say more. 2 MR. RADCLIFFE: Same objections. 3 A. I would say more likely that it was 4 not. 5 Q. So you're saying that in the 1970s 6 Abex allowed NAPA to put into commerce brake 7 shoes that had the American Brakeblok trademark, but they would have contained more 8 likely than not linings from some other 9 entities? 10 11 A. Yes. 12 MR. RADCLIFFE: Obj ec t to f orm. 13 MR. CARON: Obj ct to form. 14 Q. What's your bas s f or tha t? 15 A. Observing it fi sth an d an d havi ng 16 various arguments and di cus si ons wi th t he 17 people at NAPA GPC about the f act th at, he 18 guys, you can't continue to do thi s. Q. Now, when you s ay observing it 19 20 firsthand, are you telli ng me that you'd gone 21 into NAPA's stores and i n the 1970s; that you 22 picked up a carton that had American Brakeblok 23 on it, and you determine d independently that 24 the linings on those bra ke shoes were not EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 238 1 manufactured by Abex or any one of its entity? 2 MR. RADCLIFFE: Same objections. 3 A. I've answered this question before. 4 I'm telling you that I know for a fact that our salespeople in the field reported back to me 5 6 and other executives that this was going on. Q. And this is something that was totally 7 verbal communications to you, correct? 8 9 A. There may be some documents. I'm sure I've seen at least one that talks about issues 10 where people were using or NAPA was using other 11 12 than Abex brake lining. Q. I want to be specific in my 13 14 questioning. I'm not really asking you whether 15 NAPA used American Brakeblok trademark material 16 in advertising. I'm talking about cartons of 17 brakes that contained the American Brakeblok trademark, whether those brakes - 18 A. For what time period are you talking? 19 Q. Let's talk about 1970s? 20 21 A. Okay. 1970s American Brakeblok, 22 chances are you wouldn't have seen much for passenger cars or light trucks that had an 23 American Brakeblok brand because at that point 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 239 1 many of the boxes sorry -- NAPA 2 Raylo>c o r they wou 3 Q. If it sai 4 A. If it sai --i 1 proba 5 was for a 6 and not for a pass So you're 7 Q. 8 boxes of brakes in 9 name Ame rican Brak 10 A. I'm not s 11 MR. RADCL I'm just 12 Q. scope 13 I just ga 14 A. 15 Q. Are you s 16 boxes in NAPA's st 17 that had the name 18 MR. RADCL MR. CARON 19 It's poss 20 A. 21 some that had it. I don't know how quickly 22 they turned their inventory. There may have 23 been stuff there that still had NAPA -- I'm 24 sorry, American Brakeblok branding on the box, EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 240 1 I can't tell you. But to say never, I never 2 say never. 3 Q. When did Abex stop using the trademark 4 name of American Brakeblok to describe linings that it manufactured that contained asbestos? 5 6 MR. RADCLIFFE: Object to form. 7 MR. CARON: Object to form. 8 A. For passenger cars and light trucks? 9 Q. Yes. 10 A. I don't know the exact date, but it 11 was bef ore 1970. 12 Q. Before 1970? 13 A. Yes. 14 Q. Do you have any documentation that 15 support s that? 16 A. No. 17 MR. GEORGE: I don't think I have any 18 further questions. EXAMINATION CONDUCTED 19 BY MR. CARON: 20 21 Q. Sir, Jason Caron again. Earlier today plaintiff's attorney showed you a number of 22 different pieces of correspondence that were 23 24 unsigned. One of the things you said was that EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 241 1 you were uncomfortable answering questions 2 about them because you didn't know whether they were sent. Do you remember that? 3 4 A. Yes. 5 Q. Okay. Would you take a look at the? 6 MR. RADCLIFFE: 48. Q. Exhibit 48 this letter is unsigned, 7 8 right? 9 A. Yeah. 10 Q. So we d on 't know whether this letter 11 was ever sent? 12 A. I know it was. 13 Q. And how d o you know it was? 14 A. Because I was actively involved in the 15 business at that t ime, and I know that there were discussions surrounding Mr. Jones' letter 16 to Toby Moore based on conversations I had with 17 18 Toby. And I believe it might have even been at 19 a NASCAR race in Charlotte. 20 Q. So Toby told you this letter was sent? 21 A. No, there was discussion about it. There were a group of us that went down to 22 23 NAPA. We talked about it. It was conversation 24 that went on more than once. There was EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 242 1 conversation within Rayloc with John Aderhold 2 and Toby Moore about what they were going to 3 do. And it was clearly it was their decision 4 to make. All we could do is give them our 5 guidance and advice and thoughts. 6 Q. Okay. Now, I see there are six different people copied on this letter? 7 A. Can I have it back? 8 9 Q. Right. 10 A. Let me see. Yeah. Q. Do you have a signed version of the 11 letter? 12 A. Do I? 13 14 Q. Yes. 15 A. Not with me. I don't know if one 16 exists, frankly. Q. Would it be fair so assume with six 17 people copied, there would have been at least 18 19 six or seven signed versions of this letter if, indeed, it was signed and sent? 20 21 MR. RADCLIFFE: Object to form. 22 A. Probably not in 1975. Chances are 23 there would have been one original signed and 24 copies made. So maybe it just went out and it EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 243 1 was unsigned. I mean, this copy is underlined. 2 Q. In 1975 the practice was not to keep copies of signed letters? Is that what you're 3 4 saying? A. I can tell you that I signed all of my 5 letters, and it's unusual that letters weren't 6 7 signed. But I can also tell you by the fact that this was discussed in my presence the fact 8 that Phil Grim's name is underlined suggests 9 that this was probably Phil Grim's copy, and 10 11 that, in fact, it was sent. Q. Did you see the letter signed and 12 sent? Do you have personal knowledge it was 13 sent? I understand there were people 14 15 discussing the letter. 16 A. I don't know. No, I haven't seen a 17 signed version of this. Q. Who is Harry Jones? 18 A. Harry Jones was the sales guy that was 19 20 responsible for the NAPA Rayloc account. Q. Did he draft this letter or is that 21 just his name on it? Did somebody else draft 22 23 it? 24 A. I don't know if he would have drafted EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 244 1 it himself. 2 Q. Did you d ra ft a ny po r ti on of th e 3 le tt er? 4 A. No, I d id n ot . 5 Q. Wha t wa s yo ur r el ati o ns hip to H ar ry 6 Jo ne s? Did yo u ha ve r eg ul ar - - 7 A. In 19 75 w e wo ul d hav e b een some wh at 8 co nt emp orari es I t hi nk . ' 75 I w as in qu al ity 9 assurance. 10 Q. What's your understanding of who L.W. 11 Moore? 12 A. Ron Moore. Well, I'm sorry, Toby 13 Moore. I don't know what L.W. stood for. It was Toby Moore was the individual this letter 14 15 went to. 16 Q. Okay. Wh at w as his p os it ion? 17 A. He wa s ei ther g ener al s al es man ager or 18 I be lievei mayb e vi ce p re side nt f or NAPA Rayl oc. 19 Q. Okay. I noti ce d th e le tt er doe sn' t 20 ha ve any lette rhea d. Do you k no w why th at i s? 21 A. I don 't. 22 Q. All r ight . D o you re me mb er eve r 23 se ei ng a copy that d id h ave le tt er head? 24 A. No. EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 245 1 Q. Do you know specifically when this 2 letter was created? A. 3 May 20, 1975. 4 Q. I understand it says that, but that -5 will you agree with me that date could have 6 been put there at any time? 7 A. I guess we can conclude that for any 8 of these documents, but, you know, I think 9 that's about the right time frame for what I 10 recall. Whether it was May 19 or 20 or I don't know if that's a 20 or 28, but, I mean, May 11 12 1975 I think is reasonable. Q. You mentioned having personal 13 14 discussions with folks at Rayloc about the subject of this letter? 15 16 A. Yeah. 17 Q. Okay. Who did you talk to at Rayloc? 18 A. I know it was Toby. There's another 19 guy that I just -- I can't think of his name 20 offhand. His name surfaced in another document 21 today, but I can't recall his name right now. But Toby and he went to the NASCAR race with 22 me, and that's this conversation came up there 23 And I also had that conversation with John 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 246 1 Aderhold and Toby Moore at Rayloc's 2 headquarters in Atlanta. 3 Q. And you actually discussed this 4 letter? A. No. We discussed specifically the 5 idea that NAPA needs to decide whether or not 6 it was going to put warnings on its finished 7 8 brake lining sets. 9 Q. Okay. And can you tell me what you 10 said during those discussions and what the 11 individuals from Rayloc said? A. You know, I just was part of the 12 conversation telling him what we were doing, 13 14 what our plans were. And that all the boxes 15 that they were receiving and would continue to 16 receive would have it. That if, in fact, they 17 asked us to package anything in set boxes or it 18 was our position that we would use the same 19 warning. And you guys need to decide what 20 you're going to do. Q. What was the response to that? 21 22 A. We'll consider it. 23 Q. When did those discussion take place? 24 Was it sometime in 1975? EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 247 1 A. I think it happened in '75 and again 2 in '76 and then probably on and off, but '77 it 3 happened again. I know there was another 4 flurry of what are we going to do? And, can you help us out? Can you print labels for us? 5 6 Which we did. Apparently, they decided to put the same warning on their product, and as I 7 8 recall, our print shop actually printed labels for them. 9 10 Q. Okay. 11 MR. GEORGE: I don't have anything 12 further. Thank you. 13 MR. RADCLIFFE: It looks like we're 14 all done. 15 THE VIDEOGRAPHE R: Th e time i s 4: 56 16 p.m. Th e de position is co nc lu de d. We are now 17 going of f th e record. 18 (Di scussion off t he r ec ord) 19 MR. GEORGE: In r ev ie wi ng the exh ibit 20 numbers for the exhibits that were attached to 21 the deposition, there is no exhibit that 22 corresponds with Exhibit 19 and Exhibit No. 30, 23 just in case. (Whereupon, the deposition was 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I 1 concluded at 4:56 p.m.) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 September 26, 2011 248 EPPLEY COURT REPORTING, LLC 508.478.9795 Indelicato Volume I September 26, 2011 249 1 CE RT I F I CATE 2 3 STATE OF NEW HAMPSHIRE 4 5 I, Darlene Caiazzo Sousa, a Certified 6 Shorthand Reporter, Registered Professional Reporter and Commissioner of Deeds in and for 7 the State of New Hampshire, do hereby certify 8 that the foregoing transcript of the deposition 9 10 of ALBERT INDELICATO, having been duly sworn, on 11 Monday, September 26, 2011, is true and accurate to the best of my knowledge, skill and 12 13 ability. 14 IN WITNESS WHEREOF, I have hereunto set my 15 hand and seal this day of 16 , 2011. 17 18 19 Darlene Caiazzo Sousa, CSR, RPR 20 Commissioner of Deeds 21 22 23 My commission expires: November 15, 2014 24 EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I DEPONENT'S ERRATA SHEET AND SIGNATURE INSTRUCTIONS September 26, 2011 250 The original of the Errata Sheet has been delivered to Thomas Radcliffe, Esq. When the Errata Sheet has been completed by the deponent and signed, a copy thereof should be delivered to each party of record and the ORIGINAL delivered to Jonathan George, Esq. to whom the original deposition transcript was delivered. INSTRUCTIONS TO DEPONENT After reading this volume of your deposition, indicate any corrections or changes to your testimony and the reasons therefor on the Errata Sheet supplied to you and sign it. DO NOT make marks or notations on the transcript volume itself. REPLACE THIS PAGE OF THE TRANSCRIPT WITH THE COMPLETED AND SIGNED ERRATA SHEET WHEN RECEIVED. EPPLEY COURT REPORTING, LLC 508.478.9795 Albert Indelicato Volume I September 26, 2011 251 ATTACH TO THE DEPOSITION OF ALBERT INDELICATO CASE: ERRATA SHEET INSTRUCTIONS: After reading the transcript of your deposition, note any change or correction to your testimony and the reason therefor on this sheet. DO NOT make any marks or notations on the transcript volume itself. Sign and date this errata sheet (before a Notary Public, if required). Refer to Page 250 of the transcript for errata sheet distribution instructions. PAGE ________ ________ ________ ________ ________ ________ ________ ________ ________ ________ ________ LINE ________CHANGE: REASON: CHANGE: REASON: CHANGE: REASON: CHANGE: REASON: CHANGE: REASON: CHANGE: REASON: CHANGE: REASON: CHANGE: REASON: CHANGE: REASON: CHANGE: REASON: CHANGE: REASON: I have read the foregoing transcript of my deposition and except for any corrections or changes noted above, I hereby subscribe to the transcript as an accurate record of the statements made by me. ALBERT INDELICATO DATE EPPLEY COURT REPORTING, LLC 508.478.9795