Document RpkQ9B0X27NejmRavrqRmvZyk
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1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF LOS ANGELES
3
)
4 VEDA MARIE GARCIA, et al.,
)
)
5 Plaintiffs, )
)
6 vs.
) No. BC 310867
)
7 ALLIED DIAGNOSTIC IMAGING RESOURCES,
INC., et al.,
)
8)
Defendants. )
9 ________________________________________)
AND RELATED CROSS-ACTIONS.
)
10 ________________________________________)
)
11
12
13
14 DEPOSITION OF
15 DAVID GARABRANT, M.D.
16 LONG BEACH, CALIFORNIA
17 SEPTEMBER 25, 2007
18
19
20
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21 ATKINSON-BAKER, INC.
22 COURT REPORTERS (800) 288-3376
23 www.depo.com 24 Reported by: SHERI A. PLY, CSR No. 6507, RPR 25 FILE NO.: A1073A8
1
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1 SUPERIOR COURT OF THE STATE OF CALIFORNIA
2 FOR THE COUNTY OF LOS ANGELES
3
)
4 VEDA MARIE GARCIA, et al.,
)
)
5 Plaintiffs, )
)
6 vs.
) No. BC 310867
)
7 ALLIED DIAGNOSTIC IMAGING RESOURCES,
INC., et al.,
)
8)
Defendants. )
9 ________________________________________)
AND RELATED CROSS-ACTIONS.
)
10 ________________________________________)
)
11
12
13
14
15
16
17 DEPOSITION of DAVID GARABRANT, M.D., taken on behalf of
18 the PLAINTIFFS, at 401 East Ocean Boulevard, Suite 800,
19 Long Beach, California, commencing at 9:05 a.m., on
20 TUESDAY, SEPTEMBER 25, 2007, before Sheri A. Ply, CSR
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21 No. 6507, RPR. 22 23 24 25
2
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1 APPEARANCES
2 FOR THE PLAINTIFFS:
3 METZGER LAW GROUP BY: RAPHAEL METZGER, ESQ.
4 401 East Ocean Boulevard Suite 800
5 Long Beach, California 90802-4966 (562) 437-4499
6 FOR THE DEFENDANTS STAR PRODUCTS DISTRIBUTORS:
7 KUTAK ROCK LLP
8 BY: DEBORAH C. PROSSER, ESQ. 515 South Figueroa Street
9 Suite 1240 Los Angeles, California 90071-3329
10 (213) 312-4000 -AND-
11 LAW OFFICES OF GARY L. HALL BY: GARY L. HALL, ESQ.
12 1410 Rocky Ridge Drive Suite 205
13 Roseville, California 95661 (916)773-8934
14 FOR THE DEFENDANTS ALLIED LITHO PRODUCTS, ALLIED
15 PHOTO OFFSET SUPPLY CORP. AND ALLIED PRESSROOM CHEMISTRY:
16 CLINTON & CLINTON
17 BY: CYNTHIA S. CHANG, ESQ. 100 Oceangate
18 14th Floor Long Beach, California 90802
19 (562) 216-5000
20 FOR THE DEFENDANT GANS INK & SUPPLY COMPANY:
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21 GORDON & REES LLP BY: BRIAN M. LEDGER, ESQ.
22 101 West Broadway Suite 1600
23 San Diego, California 92101 (619) 230-7729
24 25
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1 APPEARANCES
2 FOR THE DEFENDANT DELEET MERCHANDISING:
3 WILSON ELSER MOSKOWITZ EDELMAN & DICKER BY: THOMAS C. CORLESS, ESQ.
4 555 South Flower Street Suite 2900
5 Los Angeles, California 90071-2407 (213) 443-5100
6 FOR THE DEFENDANT DAY-GLO COLOR CORPORATION:
7 (OF RECORD, NOT PRESENT)
8 WAIT & CHILDS BY: JAMES W. COLFER, ESQ.
9 250 West First Street Suite 222
10 Claremont, California 91711 (909) 621-5672
11 FOR THE DEFENDANTS IMAJE INK JET PRINTING
12 CORPORATION, LITHOCHEM, INC. AND I.C. COMPOUND COMPANY, INC.:
13 (via telephone)
14 POOLE & SHAFFERY BY: JOHN F. GRANNIS, ESQ.
15 27441 Tourney Road Suite 280
16 Valencia, California 91355 (661) 290-2991
17 FOR THE DEFENDANTS HURST CHEMICAL COMPANY AND
18 VARN INTERNATIONAL:
19 LEWIS BRISBOIS BISGAARD & SMITH LLP BY: ELIZABETH G. O'DONNELL, ESQ.
20 221 North Figueroa Street, Suite 1200
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Los Angeles, California 90012 21 (213) 250-1800 22 FOR THE DEFENDANTS PRISCO PACIFIC: 23 BACALSKI, OTTOSON & DUBE, LLP
BY: TANIA WILLIAMS 24 11999 San Vicente Boulevard, Suite 350
Los Angeles, California 90049 25 (310) 476-6010
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1 INDEX
2
3 WITNESS: DAVID H. GARABRANT, M.D.
4
5 EXAMINATION BY:
PAGE
6 MR. METZGER
7
7 INFORMATION REQUESTED:
8 (NONE)
9 QUESTIONS WITNESS INSTRUCTED NOT TO ANSWER: (NONE)
10
11 E X H I B I T S:
12 DEPOSITION
NUMBER
DESCRIPTION
13 1
One-page "Opinions
of David H. Garabrant,
14 MD, MPH"
7
PAGE
15 2
16
17 3
18
19
Two-page "Legal
Testimony by David H.
Garabrant, MD, MPH,
2003-2006"
8
Multipage article "The Non-Hodgkin Lymphomas: A Review of the Epidemiologic Literature" 14
20 4
Multipage "Cancer
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Epidemiology and 21 Prevention," pg. 898-911 15
22 5
Multipage list of articles 47
23 6 24
Three-page "Summary of Present Materials,9-23-07 50
25
5
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1 E X H I B I T S:
2
DEPOSITION
3 NUMBER
DESCRIPTION
7 Multipage "Lymphoma
4 Studies: NHL and
Benzene Exposure"
50
5
8 Two-page billing
6
statements
51
PAGE
79
8 10
9
10 11
11
Three-page handwritten
notes
54
Three-page Classification
of Human Hematopoietic
Malignancies
57
Multipage ICD 9
Codes
57
12 12 13
One-page Dec. 15, 2006 letter from David Kim 58
14
15
16
17
18
19
20
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21 22 23 24 25
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1 LONG BEACH, CALIFORNIA, TUESDAY, SEPTEMBER 25, 2007 2 9:05 A.M. 3 *** 4 DAVID H. GARABRANT, M.D., 5 having been first duly sworn, was examined 6 and testified as follows: 7 8 EXAMINATION 9 BY MR. METZGER: 10 Q Good morning, Dr. Garabrant. 11 How are you today? 12 A Very well, thank you, Mr. Metzger. 13 How are you? 14 Q I am fine, thanks. 15 A Good. 16 Q Have you written a list of your opinions for 17 this case? 18 A Yes. 19 Q Could I have that, please. 20 All right. We will mark this list of opinions
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21 as Exhibit 1. 22 (Deposition Exhibit 1 was marked for 23 identification.) 24 MS. O'DONNELL: Deborah, do you have extra 25 copies?
7
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1 MS. PROSSER: Sorry, I don't. 2 MS. O'DONNELL: No problem. 3 Q BY MR. METZGER: All right. Dr. Garabrant, I 4 believe that you were requested to bring a list of 5 depositions on trials in which you have testified. 6 Do you have that? 7 A I do. 8 Q Okay. We will mark that as Exhibit 2. 9 (Deposition Exhibit 2 was marked for 10 identification.) 11 Q BY MR. METZGER: Let's see. This appears to 12 run up through May 2006. 13 Have you given any depositions or trial 14 testimony in any cases involving benzene since that 15 date? 16 A I don't believe so. 17 Q Have you given any depositions or trial 18 testimony in any case regarding non-Hodgkin's lymphoma 19 since that date? 20 A I don't believe so.
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21 Q Have you in the past testified by deposition or 22 trial testimony in a case in which it was claimed that a 23 workers's non-Hodgkin's lymphoma was caused by exposure 24 to organic solvents or benzene? 25 A I don't believe I have. I don't recall having
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1 done so. 2 Q Okay. Do you recall a case by the name of 3 Rembolt? 4 A I do. 5 Q And in that case you were retained by 6 Ms. Prosser to testify as an expert; correct? 7 A I was retained by Ms. Prosser. 8 Q And -9 A I don't recall whether I was retained to 10 testify our not, but I was retained. 11 Q Okay. I will represent to you that you were 12 designated as an expert in that case. 13 A Okay. 14 Q And you have a recollection that that was a 15 non-Hodgkin's lymphoma case? 16 A I believe it was. 17 Q And you have a recollection that the claim in 18 that case was that exposure to organic solvents caused 19 Mr. Rembolt's non-Hodgkin's lymphoma? 20 A To be honest, I don't recall the details of the
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21 case. I believe it was roughly like that. 22 Q Okay. And in that case did you review the 23 literature to form opinions in that case? 24 A I believe I did. 25 Q Okay. And at that time is it true that you
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1 reviewed the literature regarding benzene and 2 non-Hodgkin's lymphoma? 3 A I believe I did. 4 Q And did you review the literature regarding the 5 epidemiologic literature recording solvent exposure and 6 non-Hodgkin's lymphoma? 7 A I don't recall whether I did or did not broaden 8 my review to be honest. 9 Q Okay. What do you mean broaden your review? 10 A In other words, I don't know whether I limited 11 my review to benzene or whether I broadened it to 12 include all solvents. 13 Q I see. 14 Well, over the course of your career have you 15 reviewed the literature, the epidemiologic literature 16 involving organic solvents and non-Hodgkin's lymphoma? 17 A I have certainly read the literature on that 18 topic on many occasions, yes. 19 Q Okay. And you consider yourself to be familiar 20 with that literature?
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21 A Yes. 22 Q All right. And did you review that literature 23 for this case? 24 A Yes. 25 Q All right. Now, let's take a look at your
10
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1 opinions. The first opinion that you have written is, 2 "Mr. Robert Garcia suffered from an idiopathic diffuse 3 large B-cell lymphoma." 4 Do any of the medical records that you have 5 reviewed render a diagnosis of idiopathic diffuse B-cell 6 lymphoma? 7 A No. The medical records render a diagnosis of 8 diffuse large B-cell lymphoma. The attribution of 9 causation is a separate and distinct issue from the 10 determination of a diagnosis. 11 Q Okay. Do you agree with the pathological and 12 clinical diagnosis of diffuse large B-cell lymphoma? 13 A Yes. 14 Q You write that "He was a resident of Los 15 Angeles County and was a Hispanic white male." I will go 16 on. "He belonged to a demographic group that is known 17 to be at high risk of NHL compared to other races and 18 ethnic groups in Los Angeles and compared to other 19 populations around the world." 20 Let me ask you, is it your opinion in this case
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21 that Mr. Garcia's race caused his non-Hodgkin's 22 lymphoma? 23 A It is my opinion that he was in a -- he was a 24 member of an ethnic group and race and resided in an 25 area that is recognized to have relatively high
11
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1 incidence rates of non-Hodgkin's lymphoma. 2 Q I understand that, but I don't think you 3 answered my question. 4 Are you going to be telling the jury in this 5 case that Mr. Garcia's race caused his non-Hodgkin's 6 lymphoma? 7 A If asked I will tell the jury that there was 8 nothing unusual about non-Hodgkin's lymphoma occurring 9 in a Hispanic white male in Los Angeles County in his 10 early 50's. 11 Q I understand what you just told me. Again, I 12 don't think you have answered my question. 13 Is it your opinion that his race or ethnicity 14 caused his non-Hodgkin's lymphoma? 15 MS. PROSSER: Objection. Asked and answered 16 twice before. 17 THE WITNESS: Well, I am not sure what you mean 18 by cause. He belonged to a group that has relatively 19 high rates. We do not understand why that group has 20 relatively high rates, but it is widely recognized that
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21 it does. 22 And so some people would say that is a causal 23 factor. Other people would say that is a risk factor. 24 Q BY MR. METZGER: Okay. And what do you say? 25 Do you say that is a causal factor, his race or
12
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1 ethnicity? 2 A I would say it is a risk factor. 3 Q Why would you say it is a risk factor rather 4 than a causal factor? 5 A Because it puts him at higher risk than other 6 racial and ethnic groups. 7 Q I understand. 8 But why do you categorize it as a risk factor 9 rather than as a causal factor? 10 A It is a subtle distinction. 11 Q What is the distinction? 12 A I think when we use the term "causal" it gives 13 an inference that we understand why a risk factor puts 14 people at increased risk. 15 When we use the term "risk factor," typically I 16 think it connotes that we may not understand why, but we 17 recognize that it puts people at increased risk. 18 Q Okay. You next write, "He was diagnosed with 19 the most common type of NHL-diffuse large B-cell 20 lymphoma."
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21 What is the basis for your opinion that that is 22 the most common type of NHL? 23 A Diffuse large B-cell lymphoma has the highest 24 incidence rate among all of the different types of 25 non-Hodgkin's lymphoma.
13
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1 Q What is your source for that opinion? 2 And while you are at it, if you are looking for 3 materials I would also like you to find the articles or 4 the data which supports your opinion that he was at an 5 increased risk of lymphoma because of his race or 6 ethnicity. 7 A Okay. The source for the information on race, 8 ethnicity and geographic region comes from an article by 9 Alexander entitled, "The Non-Hodgkin's Lymphomas-A 10 Review of the Epidemiologic Literature" published in the 11 "International Journal of Cancer" in 2007. 12 Q Okay. Thank you. We will mark that as Exhibit 13 3. 14 (Deposition Exhibit 3 was marked for 15 identification.) 16 MS. PROSSER: Can we get that copied before -17 he wants his original articles back. 18 MR. METZGER: We will do that at the end of the 19 deposition. 20 MS. PROSSER: Okay.
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21 Q BY MR. METZGER: Okay. And have you found the 22 reference that diffuse large B-cell lymphoma is the most 23 common lymphoma? 24 A The information that it has the highest 25 incidence rate of all of the various type of
14
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1 non-Hodgkin's lymphomas and that is from a book chapter 2 entitled, "Non-Hodgkin Lymphoma." The author is Hartge. 3 The book is "Cancer Epidemiology Prevention, Third 4 Edition" by David Schottenfeld published in 2006. 5 Q We will mark that Exhibit 4. 6 (Deposition Exhibit 4 was marked for 7 identification.) 8 Q BY MR. METZGER: Are there any other references 9 that you are relying on for that proposition? 10 A There are many others that would support it. I 11 did not bring any today. 12 Q Can you identify any others today? 13 A Yes. For the rates of non-Hodgkin's lymphoma 14 by race, sex, age and region, the IARC book on "Cancer 15 Incidence and Mortality." I don't know the exact title 16 of it. I want to say "Cancer Rates Around the World," 17 currently the 8th edition. And the 7th and the 6th and 18 the 5th edition, they would all support that. 19 It is a compendium of cancer rates and 20 mortality in virtually every register, every cancer
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21 registry around the world. 22 Q Okay. 23 MR. HALL: Doctor, could you keep your voice up 24 a little bit? 25 THE WITNESS: I am sorry, yes.
15
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1 Q BY MR. METZGER: What is your understanding as 2 to where Mr. Garcia lived? 3 A Let's see. I think he lived out in the middle 4 to eastern end of the San Gabriel Valley for much of his 5 life. I don't remember the names of all the towns. 6 Q Is that the eastern end of Los Angeles County 7 or some other county? 8 A Well, it could have been the western end of San 9 Bernardino County. It could have been the eastern end 10 of Los Angeles County. I am not sure. 11 Q Is the county of residence important to your 12 analysis here? 13 A No. The analysis where I have said Los Angeles 14 County is based on data from the Los Angeles County 15 Cancer Surveillance Program. 16 And I believe that cancer rates in Los Angeles 17 County are representative of cancer rates in the Los 18 Angeles basin more broadly. 19 So the distinction of whether he actually 20 resided in San Bernardino versus Los Angeles County
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21 wouldn't change my opinion. He was a resident of the 22 Los Angeles basin. 23 Q Okay. Now, what source are you specifically 24 relying on for the incidence data for large B-cell 25 diffuse non-Hodgkin's lymphoma for Los Angeles County?
16
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1 A I don't believe I made a statement about that. 2 Q Is there any such source that your aware of? 3 A I believe that there is such data maintained by 4 the State of California Tumor Registry. 5 Q Do you have that data? 6 A I do not have that data with me, no. 7 Q Have you reviewed it for this case? 8 A No, I have not. 9 Q Okay. Are you aware of any book that sets 10 forth cancer incidence for different cancers 11 specifically for Los Angeles County? 12 A I am not aware of any book as I sit here. I 13 know that the Los Angeles County Tumor Registry 14 routinely compiles that data and it exists. I am not 15 aware of any book that has published that. 16 Q Okay. The data that you just referred to, is 17 that the data just a moment ago that you said you have 18 not reviewed for this case? 19 A I am not sure I understand which data you are 20 talking about.
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21 Q You just referred to data on Los Angeles for 22 the Los Angeles County Tumor Registry. 23 Have you reviewed any of that data for this 24 case? 25 A No.
17
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1 Q Okay. All right. You write that "There was 2 nothing unusual about Mr. Garcia's diffuse large B-cell 3 lymphoma that suggests that he had any risk factor that 4 was any different than the general population of his 5 gender, ethnicity, age and geographic residence." 6 Are you aware of any studies that suggest that 7 large cell B-cell lymphoma is a secondary cancer? 8 A I don't understand your question. I am sorry. 9 Q Are you familiar with the terminology 10 "secondary cancer"? 11 A Not in this context, no. 12 Q Well, have you ever heard of the term or phrase 13 "secondary cancer"? 14 MS. PROSSER: I would just object as lacking 15 foundation. 16 THE WITNESS: I have in some instances, yes. 17 Q BY MR. METZGER: What is your understanding of 18 what a secondary cancer is? 19 A People who have had a cancer of one type who 20 then develop a second cancer of a different type, that
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21 is sometimes referred to as a secondary cancer. 22 Q And is there a body of epidemiologic literature 23 which evaluates chemotherapeutic drugs as risk factors 24 for secondary cancers? 25 A There is a body of epidemiologic literature
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1 that has examined the risks of cancer in people who have 2 been treated with chemotherapeutic agents. 3 Q Are you familiar with that literature? 4 A I didn't prepare for this deposition by looking 5 at that literature. 6 Q Are you familiar with it? 7 A I have read some of that in the past. 8 Q Okay. And have you read that body of 9 literature which relates to secondary lymphomas? 10 A I do not have any expert knowledge of that as I 11 sit here today. I have not read that carefully in the 12 recent past. 13 Q Okay. So I take it then that you don't know 14 what form of lymphoma is the type of lymphoma that has 15 most frequently been reported as a secondary cancer from 16 administration of chemotherapy drugs; is that right? 17 A Your question presupposes there is a single 18 type of lymphoma that has been reported secondary to 19 chemotherapeutic agents. I am not sure that is correct. 20 Q My question was, is it true that you don't know
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21 what type of lymphoma is the type of lymphoma that has 22 most frequently been reported as a secondary cancer from 23 administration of chemotherapy drugs, not exclusively? 24 A There have been reports of non-Hodgkin's 25 lymphoma among people who have been treated with
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1 chemotherapy agents. 2 Q And do you know what type of non-Hodgkin's 3 lymphoma is the type of non-Hodgkin's lymphoma that has 4 most frequently been reported as a secondary malignancy 5 from administration of chemotherapy drugs? 6 A I don't know from memory as I sit here. I 7 didn't prepare on that topic for today. 8 Q Okay. Let's talk about some of these factors 9 here that you have at the end of your first opinion. 10 Gender, Mr. Garcia was male; correct? 11 A Yes. 12 Q Are there any differences that you are aware of 13 in gender, specific rates of lymphoma? 14 A Yes. 15 Q What are those? 16 A Well, for non-Hodgkin's lymphoma, males 17 typically have about a one and a half to twofold higher 18 incidence rate than females. 19 Q Do you have any explanation for that? 20 A No.
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21 Q Okay. Ethnicity we have spoken about. 22 At what age was Mr. Garcia diagnosed with 23 lymphoma? 24 A I believe he was -- he was born in 1948. He 25 was diagnosed in 2002. He was either -- 48 to 2002, he
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1 was either 52 or 53. I don't recall. 2 Q Okay. And have you examined the age specific 3 incidence rates for large diffuse B-cell lymphoma? 4 MS. PROSSER: I am going to object as vague and 5 ambiguous. 6 THE WITNESS: I have not examined those in 7 preparation for this deposition. I have seen them in 8 the past. 9 Q BY MR. METZGER: Okay. Have you examined the 10 age specific rates for non-Hodgkin's lymphoma generally 11 for this case? 12 A Yes. 13 Q And what is the incidence for males in the age 14 group to which Mr. Garcia belongs? 15 A I would have to look. I didn't memorize it. 16 Q And where would you look to find that? 17 A In the materials that you just marked as 18 exhibits. 19 Q Specifically which, Exhibit 3 or Exhibit 4 or 20 both of those?
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21 A I would have to look. 22 Q Okay. And lastly, last two words are 23 "geographic residence." 24 And by that do you mean Los Angeles County or 25 San Bernardino County or the Los Angeles basin or what?
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1 A I mean that whites in the United States have 2 among the highest rates in the world. 3 Q So, for example -4 A So compared to many areas of the world, 5 non-Hodgkin's lymphoma in the United States is 6 dramatically more common. 7 Q So for the statement here that there was 8 nothing about his lymphoma that suggested any risk 9 factor that was different from the general population of 10 his gender, ethnicity, age and geographic residence, for 11 geographic residence you mean the United States? 12 A No, I mean for Los Angeles County. 13 Q Los Angeles County? 14 A Or let's say the Los Angeles basin. 15 Q Okay. How are you defining the Los Angeles 16 basin? 17 A The Los Angeles basin typically includes Los 18 Angeles County, San Bernardino County out to the end of 19 the San Gabriel Valley and then stretching south to 20 include Orange County. I am not sure how far down,
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21 whether it goes past San Clemente. 22 So it is basically the highly populated region 23 in Southern California. 24 Q Do you have any non-Hodgkin's lymphoma 25 incidence data for that region as you have just defined
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1 it? 2 A I do not have any that I have reviewed in 3 preparation for this deposition. 4 Q Okay. Your second opinion, "Benzene is not 5 known to cause HL in humans" -6 MR. CORLESS: Could you speak up, Rafe, please. 7 I couldn't hear you. 8 MR. METZGER: Sure. 9 Q When you say, "Benzene is not known to cause HL 10 in humans," do you mean it is not known to you to cause 11 HL in humans or do you mean it is not known by other 12 people to cause NHL in humans? 13 A I mean as a matter of science, it is not known 14 to cause NHL. It is not an accepted conclusion in the 15 scientific community. 16 Q So is it true that you hold the opinion that 17 benzene does not cause NHL in humans? 18 A I hold the opinion that benzene is not known to 19 cause NHL in humans. And the majority of scientists who 20 have written on this don't hold that -- do not hold the
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21 opinion that benzene is known to cause NHL. 22 Q Are you relying on the opinions of this 23 unspecified majority that you just -- strike that. 24 Are you relying for your opinion that benzene 25 is not known to cause NHL in humans on the opinions of
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1 other people than yourself? 2 A I am relying on the published scientific 3 literature. 4 Q As opposed to opinions of people other than 5 yourself? 6 MS. PROSSER: Objection. Vague and ambiguous. 7 THE WITNESS: I am not sure I understand the 8 question. 9 Q BY MR. METZGER: Well, let me explain. 10 An expert is allowed to render his own opinions 11 in court but not the opinions of other people, okay. 12 So what I want to know is for your opinion that 13 benzene is not known to cause NHL in humans, are you 14 relying on your own opinion or the opinions of other 15 people? 16 MS. PROSSER: I am going to object for the 17 record that you just misstated the law on the 18 admissibility of expert opinions. 19 Don't assume that that is a correct statement 20 of the law.
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21 MR. CORLESS: Also vague and argumentative. 22 MS. PROSSER: It is flatly incorrect actually. 23 THE WITNESS: It is my opinion that benzene is 24 not known to cause NHL in humans. And my opinion is 25 based on my expert review of the scientific evidence
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1 relevant to that issue. 2 Q BY MR. METZGER: Okay. As opposed to polling 3 experts as to whether they believe that benzene causes 4 NHL; is that correct? 5 MS. PROSSER: I am going to object to the word 6 "polling" as vague and ambiguous. 7 THE WITNESS: I am not sure I understand what 8 your question is about when you say "as opposed to 9 polling." I have not polled experts. 10 I have read what scientists have written on 11 this topic. And my opinions are based on the scientific 12 evidence that has been published in the open literature. 13 Q BY MR. METZGER: Okay. Is it correct that you 14 have not done a survey of epidemiologists to determine 15 whether a significant number of epidemiologists hold the 16 opinion that benzene does not cause non-Hodgkin's 17 lymphomas in humans? 18 You have not done that; correct? 19 MR. CORLESS: Objection. Vague as to "survey." 20 MS. PROSSER: Join.
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21 THE WITNESS: I am not sure I understand your 22 question. What do you mean by a significant number of 23 epidemiologists? 24 Q BY MR. METZGER: I mean a number that is within 25 the 95 percent confidence -- two standard deviations
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1 from the mean or I will even take a 75 percent. 2 A The mean of what? 3 Q All right. Have you conducted a survey of any 4 epidemiologists to identify epidemiologists who hold the 5 opinion that benzene does not cause non-Hodgkin's 6 lymphoma? 7 MS. PROSSER: Objection to the word "survey" as 8 vague and ambiguous. 9 MR. CORLESS: Join. 10 THE WITNESS: I think I have answered your 11 question about the basis for my expert opinion. I will 12 try to answer your question about surveys. 13 I am not sure what you mean by a survey, but I 14 don't think I have done any surveys on that issue. 15 Q BY MR. METZGER: Okay. When you say in the 16 next sentence, "It is not generally accepted in the 17 scientific community that benzene is a cause of NHL or 18 of diffuse large B-cell lymphoma specifically in 19 humans," are you basing that opinion on your review of 20 the literature or your discussions with other experts?
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21 A It is based on the scientific literature. 22 Q And not discussions with other experts; 23 correct? 24 A That is correct. 25 Q Okay. Are you aware of any experts who do
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1 believe that benzene causes non-Hodgkin's lymphoma in 2 humans? 3 A I have not seen any writings of scientific 4 experts that have reached that conclusion, with the 5 possible exception of Myron Mehlman, and I am not sure 6 exactly what he said, but I am not sure he has the 7 correct expertise to reach that conclusion. 8 Q Are there any other experts who you believe 9 hold the opinion that benzene causes non-Hodgkin's 10 lymphoma? 11 MS. PROSSER: Are you excluding from this case 12 retained experts in this case? 13 MR. METZGER: Well, we know what they believe 14 so -15 MS. PROSSER: So excluding retained experts by 16 the plaintiff. 17 THE WITNESS: I don't recall any experts who 18 have written that in the peer-reviewed literature. 19 Q BY MR. METZGER: Okay. Your opinion No. 3, 20 "There is no exposure level to benzene that is known to
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21 place people at increased risk of NHL or of diffuse 22 large B-cell lymphoma specifically," are there not 23 published epidemiologic studies which find or report a 24 dose response relationship for benzene and non-Hodgkin's 25 lymphoma?
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1 A There are studies that report increased risk at 2 some doses and not others. There are studies that 3 contradict that finding. 4 Q Okay. 5 A And so it is not known to be true. 6 Q Known by you to be true; correct? 7 A Well, I think when the scientific literature 8 does not replicate a finding, it is a reasonable 9 conclusion that the non replicated finding is not known 10 to be true. 11 Q Are you saying that the finding that in some 12 studies -- strike that. 13 Has the finding of a dose response relationship 14 for benzene exposure and non-Hodgkin's lymphoma been 15 replicated in any study? 16 A I am sorry, I don't understand your question. 17 Q I will restate it. I will repeat it. 18 Has the finding of a dose response relationship 19 for benzene and non-Hodgkin's lymphoma been replicated 20 in any study?
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21 A I am not sure to which finding you are 22 referring in your question. 23 Q I think we have already established that there 24 is at least one study which reports a dose response 25 relationship between benzene exposure and non-Hodgkin's
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1 lymphoma. 2 You agree with that, do you not? 3 A Yes. 4 Q Has that finding been replicated in any study? 5 A I am not aware that that finding has been 6 replicated in any study. 7 Q Okay. And what is the study that you have in 8 mind that that finding was reported? 9 A The studied done by the Chinese Academy of 10 Science's National Cancer Institute which has been 11 published under various names over the past 10 years or 12 so. 13 Q Okay. And as you sit here today is that the 14 only study that you are aware of that reports a dose 15 response relationship for benzene and non-Hodgkin's 16 lymphoma? 17 A I would have to look, to be honest. 18 Q Okay. Your fourth opinion, "Mr. Robert 19 Garcia's alleged exposure to benzene did not place him 20 at increased risk of, cause, lead to or in any way
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21 contribute to the causation of his diffuse large B-cell 22 lymphoma," let's break that down. 23 The first phrase is "Mr. Robbert Garcia's 24 alleged exposure." 25 What does the word "alleged" mean to you?
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1 A It means that there is a claim that he was 2 exposed to benzene at some level under some 3 circumstances in the course of his work as a printer. 4 Q Okay. 5 A And I am not sure exactly what it is that is 6 being alleged in terms of the dose of benzene to which 7 he was exposed. 8 Q I understand. 9 However, is it your opinion that Mr. Garcia was 10 exposed to benzene or is that not your opinion? 11 A I believe that Mr. Garcia worked with materials 12 that may have contained trace levels of benzene in their 13 liquid composition and that he may have had some 14 inhalation exposure to benzene as a consequence of 15 working with those materials. 16 Q Okay. You have just given me a "may" opinion, 17 which is a possibility and possibilities don't cut it in 18 the law. 19 So what I want to know is to a reasonable 20 degree of medical probability, was Mr. Garcia
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21 occupationally exposed to benzene in your opinion? 22 MR. CORLESS: Objection. Misstates the law. 23 Argumentative. 24 THE WITNESS: Well, we are all exposed to 25 benzene, Mr. Metzger. The background levels in Los
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1 Angeles are in the single digits of parts per billion. 2 We breathe them everyday while we are here. 3 Mr. Garcia breathed the air in the Los Angeles 4 basin while he was at work and he had exposure to 5 benzene as a consequence of that. 6 In addition, he worked with various products in 7 the printing process that may have contained low 8 concentrations of benzene in the liquid form. 9 I am not aware that there are any measurements 10 of his exposure to benzene in any of the places that he 11 worked. 12 And so estimates of his exposure to benzene are 13 based on assumptions about what was done in the various 14 facilities where he worked between 1970 and 2003. 15 I think it is fair to characterize that as he 16 may have been exposed and to take up with the industrial 17 hygienists exactly what the probability was that he was 18 exposed to benzene in the course of those jobs. 19 Q BY MR. METZGER: Okay. So I take it as you sit 20 here today, you do not have an opinion as to whether he
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21 was in fact exposed to benzene from the solvents. 22 Is that true? 23 MS. PROSSER: Objection. Asked and answered. 24 THE WITNESS: Well, Mr. Metzger, it requires 25 expertise as an industrial hygienist to make reasonable
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1 assumptions about the amount of solvent used, the 2 circumstances of use, the evaporation rates, the 3 ventilation rates, the size of the buildings and other 4 areas. 5 I think it is safe to say he may have been 6 exposed and to defer to an expert industrial hygienist 7 who actually estimates whether that exposure was 8 meaningfully above the background levels in the ambient 9 air of the Los Angeles basin. 10 Q BY MR. METZGER: Okay. There is a difference 11 between exposure and dose; correct? 12 A In my language as a scientist, yes. I am not 13 sure what you are referring to, but in my language there 14 is, yes. 15 Q I'd like to just focus for a moment not on 16 estimating his dose of exposure but rather just on the 17 issue of exposure. 18 Do you have an opinion as to whether he was 19 exposed to benzene from the solvents that he used at 20 work?
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21 A Again, I think he may well have been. There 22 have been exposure studies in the printing industry that 23 have shown that there are benzene exposures in the 24 printing industry. 25 I do not know how applicable those studies are
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1 to the circumstances of Mr. Garcia's work. And so I 2 think it is a reasonable conclusion to say he may have 3 been exposed. He used products that may have had trace 4 contamination or trace quantities of benzene in them. 5 Q If the product that he used contained benzene, 6 would it be your opinion that he was exposed to benzene 7 from those products? 8 MS. PROSSER: I am going to object as vague and 9 ambiguous as to the amount of benzene under your 10 hypothetical. 11 THE WITNESS: It would depend on how much 12 benzene was in those products and how he used them and 13 it would depend on many factors in the work setting, not 14 limited to ventilation, enclosures, the exact tasks he 15 performed, how close he was to the products that 16 contained benzene. 17 So an answer to that would require 18 consideration of many factors. 19 Q BY MR. METZGER: Have you received reports from 20 any industrial hygienist for you to rely on in this
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21 case? 22 A I have read Mr. Wabeke's deposition testimony 23 and I have spoken with the industrial hygienist who is 24 working for the defendants. 25 Q Who is that?
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1 A I am not sure I recall his name. I think it is 2 Ron Hall. 3 Q Has Mr. Hall expressed to you an opinion as to 4 whether Mr. Garcia was exposed to benzene from the 5 solvents? 6 A He has made an estimate of what he thinks 7 Mr. Garcia's cumulative exposure may have been. 8 Q Okay. So is it your understanding that 9 Mr. Hall is of the opinion that Mr. Garcia was exposed 10 to some benzene from the solvents? 11 A I think you have to ask Mr. Hall what his 12 opinion is. I believe that he made an estimate of the 13 exposure that Mr. Garcia may have had -14 Q Okay. 15 A -- based on a number of assumptions; not based 16 on any measurements in Mr. Garcia's workplace. 17 Q Has he provided you anything in writing? 18 A No. I spoke with him over the phone. 19 Q How long did you speak with him? 20 A For perhaps 10 minutes.
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21 Q Okay. Are you relying on anything that he told 22 you for your opinions in this case? 23 A Yes. 24 Q What are you relying on what he told you? 25 A His estimate of Mr. Garcia's possible
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1 cumulative benzene exposure. 2 Q What was that estimate? 3 A About 9.2 PPM years. 4 Q I see. Okay. 5 And do you have an opinion as to whether that 6 cumulative dose of benzene has been associated with 7 increased risks of hematopoietic malignancy? 8 MS. PROSSER: I am going to object that the 9 question is way, way overbroad. 10 THE WITNESS: To my knowledge that level of 11 exposure is not known to be associated with increased 12 risk of non-Hodgkin's lymphoma, which is the malignancy 13 at issue in this case. 14 Q BY MR. METZGER: But I asked you a more broad 15 question. Has that cumulative dose of benzene exposure 16 been associated with an increased risk of hematopoietic 17 malignancy? 18 MS. PROSSER: Objection. Overbroad. 19 THE WITNESS: I know of no evidence that would 20 say that hematopoietic malignancies as a group are
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21 associated with that level of benzene exposure or that 22 cumulative benzene exposure. 23 Q BY MR. METZGER: Okay. Has that cumulative 24 dose of benzene been associated with acute myelogenous 25 leukemia?
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1 A I am not aware that it has. 2 Q Have you researched that? 3 A I have looked at that issue, yes. 4 Q Has that cumulative dose of benzene exposure 5 been associated with myelodysplastic syndrome? 6 A I am not aware that it has been. 7 Q Have you researched that? 8 A Not in the past few years. And when you say 9 associated, I am interpreting that to mean that there is 10 reliable evidence. 11 Q What are your criteria for that? 12 A That it is based on scientific studies; not 13 case reports. It is actually based on research studies 14 that are published in the peer-reviewed literature and 15 that those findings have been replicated. 16 Q Okay. And you would want to see there was an 17 increased odds ratio with 95 percent statistical 18 confidence? 19 A Could you clarify what it is you mean by 95 20 percent statistical confidence.
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21 Q Well, with a 95 percent confidence interval. 22 A That I would want a 95 percent confidence 23 interval, is that your question? 24 Q For the increased risk. 25 A Well, it is routine in epidemiology to
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1 calculate 95 percent confidence intervals. We usually 2 expect to see them. 3 Is there some level of confidence that is part 4 of your question? I am not understanding. 5 Q That is fine. All right. 6 What other experts have you spoken with who 7 have been retained by the defense for this case? 8 MR. CORLESS: Regarding this case? 9 THE WITNESS: I don't know what other experts 10 have been retained by the defendants. I have not spoken 11 with anybody other than Mr. Hall regarding this case. 12 Q BY MR. METZGER: You have spoken with lawyers 13 regarding this case? 14 A Yes. 15 Q Anyone other than Mr. Hall and lawyers that you 16 have spoken with regarding this case? 17 A No. 18 Q Have you received any written reports from 19 anyone that you are relying on for this case? 20 MS. PROSSER: You don't mean in the medical
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21 records? You are talking about from experts? 22 MR. METZGER: Yes. 23 Q I am not talking about the medical records. 24 A Not to my knowledge, no. 25 Q Have you received any oral reports other than
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1 from Mr. Hall? 2 A No. 3 Q Have you received any E-mails from any experts 4 for this case? 5 A No. 6 Q All right. I'd like to turn to your 6th 7 opinion. You say that "There is no scientific basis for 8 Mr. Harrison's opinion that aliphatic hydrocarbons, 9 aromatic hydrocarbons or mixed organic solvents led to 10 the development of Mr. Robert Garcia's NHL or that they 11 were substantial contributing factors in causing his 12 death." 13 Are there any epidemiologic studies which 14 report significantly increased rates of non-Hodgkin's 15 lymphoma in relation to exposure to aliphatic 16 hydrocarbons? 17 A I don't know if there are any. I know that 18 there is no body of scientific literature that would 19 reasonably support a conclusion that aliphatic 20 hydrocarbons cause non-Hodgkin's lymphoma or contribute
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21 to it or were contributing factors in the causation that 22 were progression of NHL. 23 Q Are there any epidemiologic studies which 24 report increased rates for non-Hodgkin's lymphoma in 25 relation to exposure to aromatic hydrocarbons?
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1 A Well, we have already discussed the Chinese 2 study that shows an association with benzene. And 3 benzene is an aromatic hydrocarbon. 4 However, I am not aware that there is any body 5 of literature that would reasonably support a conclusion 6 that aromatic hydrocarbons as a class of chemicals cause 7 or contribute to non-Hodgkin's lymphoma. 8 Q Are you aware of any epidemiologic studies 9 which report increased rates of non-Hodgkin's lymphoma 10 in relation to exposure to mixed organic solvents? 11 A I would give the same answer. We have 12 discussed benzene. I am not aware that there is any 13 body of literature that would reasonably support a 14 conclusion that mixed organic solvents are a risk factor 15 for non-Hodgkin's lymphoma. 16 There are studies that show increased risks 17 related to chlorinated aliphatic hydrocarbon solvents, 18 but there is also many studies that fail to show that 19 association. 20 Q Your 8th opinion says, "Regarding
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21 Dr. Harrison's summary opinion 5, he has not adequately 22 considered the descriptive epidemiology of NHL." 23 What are you referring to here as his opinion 24 No. 5? 25 A Dr. Harrison's opinion that there are no other
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1 likely explanations for Mr. Garcia's NHL and that he has 2 considered non occupational and other personal risk 3 factors in this case and that he has excluded them as 4 causal or substantial factors in Mr. Garcia's NHL. 5 Q All right. Have you -- first of all, have you 6 identified an alternative cause what you believe caused 7 Mr. Garcia's non-Hodgkin's lymphoma? 8 A The overwhelming majority of non-Hodgkin's 9 lymphoma has no known cause. Mr. Garcia's lymphoma is 10 not unusual in any way and Mr. Garcia fairly -- is a 11 quite typical person to come down with non-Hodgkin's 12 lymphoma. 13 Q You have told me all that before, but that 14 doesn't answer my question at all. 15 What I asked you is have you identified a cause 16 other than exposure to benzene in the solvents that in 17 your opinion caused his non-Hodgkin's lymphoma? 18 MR. CORLESS: Objection. Misstates his 19 testimony. 20 MS. PROSSER: Completely misstates his opinions
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21 and you are becoming quite argumentative, counsel. 22 THE WITNESS: I think I have answered your 23 question. Mr. Garcia is in a high risk group because he 24 lives in Southern California and he is a white male in 25 his early 50's. He is not unusual in any way.
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1 Q BY MR. METZGER: Okay. 2 A Now, beyond that there is no known cause of his 3 non-Hodgkin's lymphoma as there is no known cause for 4 the vast majority of non-Hodgkin's lymphomas in Hispanic 5 white males in the United States and in the Los Angeles 6 basin. 7 Q Okay. So you haven't found an alternative 8 cause of his lymphoma which you believe in medical 9 probability caused his lymphoma; is that correct? 10 A I have answered your question. 11 Q You have not, doctor. 12 Have you identified an alternative cause which 13 you believe in medical probability caused his lymphoma? 14 MS. PROSSER: I am going to object to the term 15 "alternative cause" as vague and ambiguous. 16 THE WITNESS: I have answered your question. 17 Mr. Garcia is quite representative of the overwhelming 18 majority of middle aged adult males in the United States 19 who contract non-Hodgkin's lymphoma. There is nothing 20 unusual.
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21 We do not know why the vast majority of these 22 people get non-Hodgkin's lymphoma. There is a 23 tremendous amount of research seeking to understand that 24 disease. 25 It is a disease that has become dramatically
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1 more common over the past 20 years. We are frankly 2 facing an epidemic of non-Hodgkin's lymphoma for reasons 3 that remain unexplained. 4 Concurrent with that increase in non-Hodgkin's 5 lymphoma, the use of benzene and the use of solvent and 6 exposures to solvents have been dramatically reduced 7 over the past 20 to 30 years. 8 And so we have an increasing incidence of this 9 disease in the face of decreasing exposure to benzene 10 and solvents. 11 We do not know why it is increasing. And in 12 the vast majority of those cases we do not know why any 13 individual gets the disease. 14 Mr. Garcia falls exactly into that picture. 15 Q BY MR. METZGER: Okay. What is the current 16 usage of solvent in the United States? 17 A Well, solvents are widely used -18 Q I am sorry, I was not clear. 19 Will you quantify for me the volume of solvents 20 that were manufactured or sold or used in the United
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21 States in the year 2006? 22 A I don't know that number. 23 Q Can you quantify that for me for 10 years ago? 24 A No. 25 Q For 20 years ago?
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1 A I don't know those numbers. 2 Q For 30 years ago? 3 A No. 4 Q Do you have any data that solvent usage has 5 actually decreased in the United States in the last 30 6 years? 7 A Solvent exposure levels have decreased 8 substantially throughout industry over the past 30 years 9 since the passage of the OSHA Act. 10 Q I see. 11 And what data are you relying on for that 12 proposition? 13 A I do not have that set of studies with me, but 14 I am relying on my reading of the industrial hygiene 15 literature routinely throughout my career that exposure 16 levels to solvents have decreased broadly throughout the 17 United States and my personal experience in industry. 18 Q Can you identify any study that reports that? 19 A There is a series of studies done in the 20 automobile manufacturing industry. The authors are
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21 Ellen Eisen, Susan Waskey, Richard Munson, Tom Smith 22 that have looked at the use of machining fluids and 23 other materials which have shown fairly substantial 24 declines in those materials over time. 25 Q Anything else?
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1 A I am sorry? 2 Q Can you identify any other studies other than 3 something regarding machining fluids? 4 A I can't cite the authors. I know there have 5 been a number of studies of exposure levels to 6 chlorinated aliphatic hydrocarbons in various 7 industries. 8 Those levels have come down dramatically and 9 the use of those solvents has been curtailed in many 10 industries, particularly in Southern California because 11 of the SCAQMD regulations reduced their usage. 12 And they have been largely phased out of many 13 applications that used to depend on chlorinated 14 solvents. 15 Q Let's talk about organic solvents. 16 Can you cite for me any literature that reports 17 that organic solvent exposure in industry has decreased 18 over the last 10, 20 or 30 years? 19 A I just did. 20 Q Well, okay. Let's exclude for a moment
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21 chlorinated solvents and focus on non chlorinated 22 solvents, aromatics and aliphatics, Naphthalenic 23 solvents. 24 Can you cite for me any study that has reported 25 a decrease in exposure to those solvents in either the
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1 last 10, 20 or 30 years in the United States? 2 A I just did. 3 Q What study is that? 4 A The studies in the auto industry. 5 Q You are talking about machining fluids? 6 A Yes. 7 Q Those are different solvents, are they not? 8 A No. 9 Q Okay. Other than these studies that you are 10 referring to regarding machining fluids, can you cite to 11 me any study that has reported a decrease in exposure to 12 aromatic, aliphatic or Naphthenic solvents in industry 13 in the United States in either the last 10, 20 or 30 14 years? 15 A Let me see if I understand your question. 16 So I just gave you a series of studies that 17 referred to petroleum distillate solvents and a bunch of 18 studies that referred to chlorinated aliphatics. 19 You want to set those aside and ask me for 20 more?
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21 Q Yes. 22 A I don't know offhand, but I could easily go 23 back to my office and compile a list for you. 24 Q Is there a difference between machining fluids 25 and the type of solvents that Mr. Garcia was exposed to?
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1 A Some of the solvents that were present in the 2 materials that he handled are similar to or the same as 3 materials that are present in machining fluids. 4 Q I think I asked you whether there was a 5 difference. 6 Is there a difference? 7 A Well, some of them are not the same, but some 8 are the same. 9 Q Are you familiar generally with the 10 constituents of machining fluids? 11 A I have some familiarity with that. 12 Q What are they made of? 13 A Depends which type of machining fluid you are 14 talking about. 15 Q What type are you talking about? 16 A I am talking about straight cutting oils. 17 Q What are they made of? 18 A They typically contain metal distillates, often 19 severely hydrotreated aliphatic and aromatic petroleum 20 distillates. They often contain sulphonate,
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21 alkylbenzene sulphonate products. 22 They contain extreme hardness agents, typically 23 sulfur compounds, sometimes phosphates. 24 They contain biocides and antifungal agents. 25 They often contain glycol ethers as misability agents.
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1 The list goes on. I could -2 Q That is fine. Thank you. 3 A Okay. 4 Q Okay. Do you have a list of literature of 5 epidemiologic studies that you are relying on for your 6 opinions in this case? 7 A Yes. 8 Q May I have that, please. 9 We will mark that as Exhibit 5. 10 (Deposition Exhibit 5 was marked for 11 identification.) 12 MS. O'DONNELL: What was 4? 13 MR. METZGER: 4 was Schottenfeld. Exhibit 5 14 will be this literature list. 15 Q Let me just ask you, how did you compile this? 16 A These are materials that are the basis for my 17 opinions regarding whether benzene and various solvents 18 are known to cause non-Hodgkin's lymphoma. 19 Q I understand. 20 From what sources did you compile Exhibit 5?
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21 A From my past 30 years of reading the scientific 22 literature and keeping a reference file of this 23 literature as well as doing a literature search as well 24 as looking at the references cited in the studies that I 25 read.
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1 Q Okay. 2 A And then pulling those references and reading 3 them and pulling the references that they cited. 4 Q Okay. You have read the deposition of 5 Dr. Harrison; is that correct? 6 A Yes. 7 Q All of the volumes? 8 MS. PROSSER: I will just state for the record 9 we don't have Volume 5 yet and he is going to be asked 10 to read Volume 5. 11 Q BY MR. METZGER: Have you -- so you have read 12 Volumes 1 through 4? 13 A Yes. 14 Q And have you reviewed -- strike that. 15 Have you read all of the studies which Dr. 16 Harrison mentioned? 17 A I believe I have. 18 Q And did some of those studies that you read, 19 were you reading them for the first time? 20 A I think so, yes.
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21 Q About how many? 22 A Maybe two. 23 Q Okay. Did you include all of the studies that 24 Dr. Harrison mentioned in Exhibit 5? 25 MR. CORLESS: Are you talking about everything
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1 that was in his exhibits that he was supplied by you or 2 are you talking about articles he specifically 3 mentioned? 4 MS. PROSSER: Yeah, that is a good point 5 because there were those CD's and many of them weren't 6 actually discussed at the deposition. 7 MR. METZGER: Let me ask him. 8 Q Have you reviewed all of the literature that 9 are on the CD's that Dr. Harrison reviewed? 10 A No. I have reviewed the articles that were 11 discussed at his deposition. 12 Q Okay. Have you received the CD's that he 13 reviewed? 14 A I don't believe so. 15 Q Did you ask counsel to provide you the CD's 16 that he had reviewed so that you could read all of the 17 articles that he had? 18 A No. 19 Q And your best recollection is that you haven't 20 been provided those CD's; is that correct?
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21 A My best recollection is that I have not seen 22 those CD's. 23 Q Did counsel tell that you they were not going 24 to provide them to you? 25 A No.
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1 Q Okay. Could I see what other materials you 2 have in front of you, please. 3 Okay. This is the opinions, which we have. 4 These are Dr. Harrison's opinions. All right. 5 We will mark this next document as Exhibit 6. 6 (Deposition Exhibit 6 was marked for 7 identification.) 8 THE WITNESS: Actually I made copies for you. 9 Q BY MR. METZGER: Thank you. 10 This is a summary of present materials. 11 Are these the materials that you reviewed for 12 this case? 13 A That is my summary of materials that I have 14 reviewed. 15 Q Okay. That will be Exhibit 6. 16 And now you have here a document entitled, 17 "Lymphoma Studies: NHL and Benzene Exposure." 18 Is this something that you have prepared? 19 A Yes. 20 Q Okay. We will mark that as Exhibit 7.
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21 (Deposition Exhibit 7 was marked for 22 identification.) 23 Q BY MR. METZGER: And this is -- these are 24 multiple copies. I will give you these back. 25 What else do you have?
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1 A Well, I just gave you everything. I was trying 2 to give you the set that I had made for you. 3 Q Oh, I am sorry. 4 A But so now we have got both sets mixed up. 5 Here, you are welcome to have that set too. 6 Q So this is your billings, okay. 7 You are charging $125 an hour for record 8 review? 9 A No. 10 Q Oh, I see that is a research an assistant. 11 Well, let's mark this as Exhibit 8. 12 (Deposition Exhibit 8 was marked for 13 identification.) 14 Q BY MR. METZGER: What is Exhibit 8? 15 A That is an invoice for my services in this 16 case. 17 Q Okay. Well, there is two documents. 18 Are they both invoices? 19 A Yes. 20 Q All right. And the first invoice is for
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21 research assistant review and summarize records. 22 That is work that was done by a research 23 assistant of yours; is that correct? 24 A Yes. 25 Q Who is that?
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1 A Lynn Swigga. 2 Q Who is she? 3 A She is a research assistant who works for me. 4 Q What is her training? 5 A She has an undergraduate degree in chemical 6 engineering and a masters degree in industrial hygiene. 7 Q Okay. And then the second page is an invoice 8 for 7.8 hours. 9 And this is work that you did; correct? 10 A Yes. 11 Q All right. Total is 7.8 hours. 12 Have you done any work for this case other than 13 the work that is reflected in Exhibit 8? 14 A Yes. 15 Q What work is that? 16 A I have reviewed records and summarized records 17 and I have read scientific literature. I have formed 18 opinions. I have written my opinions down and I have 19 prepared some summaries of the scientific literature. 20 Q How many hours have you spent total on this
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21 case? 22 A Say 35 or 40. 23 Q Okay. You mentioned some summaries, summaries 24 of records. 25 Are there any summaries that you prepared that
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1 you have not yet shown me? 2 A No. 3 Q So the summaries that you were referring to is 4 the summary of the literature and of materials that you 5 reviewed; is that correct? 6 A Yes. 7 Q Okay. And any other summaries that you have 8 prepared? 9 A No. 10 Q Have you brought any other materials here with 11 you today? 12 A Yes. 13 Q And let me just see them. 14 Are those boxes -- are they literature or what? 15 A They are various things. They are all here on 16 the floor. 17 Q Okay. And are they all listed on the 18 literature list that you have provided me and the 19 summary of materials that you have reviewed? 20 A No.
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21 Q Okay. Well, what do you have that is not 22 listed here and on the documents which have been marked 23 as exhibits? 24 A Well, we'd have to go through it. 25 Q Let me just ask you, what do you have that are
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1 not literature, published literature? 2 A Well, we'd have to go through it. 3 Q Well, let me start, do you have any notes, 4 handwritten notes? 5 A No. Well, yeah, I have one handwritten note. 6 Yes, I do. 7 Q Okay. May I see that, please. 8 We will mark these as Exhibit 9, three pages of 9 notes. 10 (Deposition Exhibit 9 was marked for 11 identification.) 12 Q BY MR. METZGER: Could you just tell me what 13 these are -14 A Yes. 15 Q -- generally. 16 A This first page is my notes from my 17 conversation with Ron Hill. And then the second and 18 third pages are a list of some of the chemicals that 19 were present in various material safety data sheets I 20 reviewed.
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21 Q Okay. Thank you. 22 Other than material safety data sheets and 23 published epidemiologic studies, are there any other 24 materials that you have here? 25 A Yes.
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1 Q Could you pull out those materials setting 2 aside the MSDS's and the epidemiologic literature. 3 A I have a few of the medical records on 4 Mr. Garcia. I have three CD's of documents. I have 5 Mr. Garcia's Social Security printout. 6 I have various correspondence from lawyers, 7 more medical records. I have the World Health 8 Organization classification of tumors of hematopoietic 9 and lymphatic tissues. I have the ICD 9 classification 10 of lymphomas. I have -- these are all MSDS's. 11 And I have deposition testimony from about 15 12 people. 13 Q Okay. Here is what we will do: First, would 14 you identify for me the depositions that you have 15 reviewed and indicate to me in doing so whether you have 16 read it in its entirety or scanned it or not read it. 17 A Okay. The deposition of Robert Garcia, 18 December 12, 2003. 19 Q Have you read that? 20 A Yes.
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21 Q Okay. 22 A The deposition of Anthony Garcia, November 3, 23 2005. 24 Q Did you read that? 25 A Yes.
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1 Q Okay. 2 A The deposition of Robert Joseph Garcia, Jr., 3 November 1, 2005. 4 Q Did you read that? 5 A Yes. 6 Q Okay. 7 A The deposition of Joseph Charles Garcia, May 8 18, 2005, October 20, 2005, and December 20, 2005. 9 Q Did you read those? 10 A Yes. 11 Q Okay. 12 A The deposition of John Schrek, May 10, 2005. 13 Q Did you read that? 14 A Yes. 15 The deposition of James Oring, July 18, 2006. 16 Q Did you read that? 17 A This one I read, but I would say in fairness I 18 skimmed parts of it. 19 Q Okay. 20 A The deposition of Scott Springer dated
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21 September 12, 2006, and that one I skimmed. 22 Q Okay. 23 A The deposition of Frank Taylor dated May 11, 24 2005. That one I read. The deposition of Alex Kloby 25 dated September 25, 2006. That one I read parts of and
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1 skimmed other parts. 2 Q Okay. 3 A The deposition of Michael Brunner dated 4 September 11, 2006, and that one I read in part and 5 skimmed in part. 6 The deposition of Charles Stay dated May 12, 7 2005, and that one I skimmed -- actually I read part of 8 that, too. 9 And the deposition of Tony Prieto, June 22nd, 10 2006. I read that one. 11 Q Okay. Are there any other depositions that you 12 read for this case? 13 A Not to my recollection, no. 14 Oh, of course Dr. Harrison and Dr. Wabeke's 15 deposition. I forgot about that. 16 Q All right. Any others? 17 A No, I don't think so. 18 Q All right. We will mark as Exhibit 10 the WHO 19 "Classification of Human Hematopoietic Malignancies" 20 which you identified a moment ago, and as Exhibit 11,
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21 the ICD 9 Codes. 22 (Deposition Exhibits 10 and 11 were 23 marked for identification.) 24 Q BY MR. METZGER: And there is a letter here 25 from David Kim enclosing materials for you to review,
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1 which we will mark as Exhibit 12. 2 (Deposition Exhibit 12 was marked for 3 identification.) 4 Q BY MR. METZGER: We don't need to mark the 5 Social Security record. You could have that back. 6 Now, there is two CD's here -- three CD's. I 7 don't see any point in attaching them to the transcript, 8 but I would like copies of these. Perhaps I could make 9 copies and give these back now before you leave. 10 MS. O'DONNELL: What are they? 11 MS. PROSSER: I don't know. 12 MS. O'DONNELL: It may be something that was 13 produced by you. 14 MR. METZGER: I don't know. I think it is 15 easier if we copy them. I will identify them. 16 One says, "Various scanned documents from 17 HSLJAAGRC&SPD." 18 MS. PROSSER: Those are like MSDS's and stuff. 19 MR. METZGER: All right. And the other says, 20 "INX MSDS's." And another one says, "APG 179 through 48
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21 Invoices" -- anyway, whatever these are, I will just 22 copy these and then give you these back. 23 MS. O'DONNELL: Right now? 24 MR. METZGER: Well, in a moment. 25 MS. O'DONNELL: But I mean today; you are not
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1 going to take them and -2 MR. METZGER: No. It shouldn't take long to 3 copy them, I don't imagine. 4 MS. PROSSER: That is fine. 5 Q BY MR. METZGER: I have your curriculum vitae 6 in front of me. 7 Have you published anything on organic solvents 8 and non-Hodgkin's lymphoma? 9 A I would have to look back through my 10 publications. 11 Q Well, I have deposed you in the past, doctor. 12 In the last two years have you published anything 13 regarding organic solvents and non-Hodgkin's lymphoma 14 that you're aware of? 15 A I would have to look at my CV. 16 Q Are you aware of anything that you have 17 published regarding benzene in the last two years? 18 A I would have to look at my CV. Do you want me 19 to do that? 20 Q If you don't recall, no. I can look at your CV
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21 and see if there is something there. 22 As you sit here today, can you identify for me 23 any epidemiologic study that you have published or 24 written regarding either benzene or non-Hodgkin's 25 lymphoma or organic solvents?
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1 MS. PROSSER: You are not asking that 2 separately; right? 3 Q BY MR. METZGER: Let me stop you. I don't want 4 you to go through your whole CV. I can read it. 5 Is there anything that is not on your CV that 6 you have published regarding benzene or non-Hodgkin's 7 lymphoma? 8 A No. 9 Q All right. We will mark your CV -- actually I 10 will just keep your CV dated June 2007. 11 That is the date of the CV that you have here; 12 is that correct? 13 A Yes. 14 Q All right. Have you told me all your opinions 15 in this case? 16 A Yes, on all of the issues that I have been 17 asked to address to date. 18 Q Okay. Have you formed any opinions for this 19 case on issues that you haven't been asked to address? 20 A No.
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21 Q Have you competed your work in this case? 22 A I have completed the work I have been asked to 23 do. I assume there will be additional work if the case 24 goes forward. 25 Q What additional work do you assume there will
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1 be for you to do? 2 A There may be additional deposition testimony. 3 I am not sure what will happen. I may have to prepare 4 opinions on additional matters that arise as the case 5 develops. I don't know. 6 Q Okay. Has anyone told you that you will be 7 asked to do any additional work in this case? 8 A No. 9 Q Now, have you reviewed -- strike that. 10 Have you read the article in "Cancer 11 Epidemiology Biomarkers & Prevention" by -- I think the 12 lead author is Barton Smith regarding benzene and 13 non-Hodgkin's lymphoma? 14 A Yes. 15 Q Have you formed any opinions or criticisms of 16 that article? 17 A Yes. 18 Q What are they? 19 A I'd have to get the article out. 20 Q Well, do you have it there?
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21 A I do. 22 I think that this article does not represent a 23 balanced review of the published literature on the issue 24 of non-Hodgkin's lymphoma and benzene. 25 Q Why is it not a balanced review, in your
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1 opinion? 2 A Because it represents that a predominance of 3 the studies on that issue show an elevation of NHL risk 4 and my own review of the studies does not agree with 5 that opinion. 6 Secondly, I find that the argument that 7 Dr. Smith makes for adjusting for the healthy worker 8 effect is not a well-reasoned argument. 9 Q Why is it not a well-reasoned argument? 10 A The concept of adjusting for the healthy worker 11 effect has been around for the entire 30 years that I 12 have been in public health and it has been hotly 13 debated. 14 It is sometimes appropriate to do that for 15 diseases such as heart disease and cardiovascular 16 disease. It is typically not done in the instance of 17 cancer risks simply because or I should say -- and the 18 first reason being much of the healthy worker effect 19 arises from or used to arise from the selection of 20 healthy workers into the workplace.
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21 So there was a selection bias, which was 22 operative for cardiovascular risk factors and sometimes 23 for physical disabilities but really was not operative 24 for cancer risks. So adjusting for the healthy worker 25 effect for cancer risks really doesn't have a firm
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1 foundation. And so I take issue with Dr. Smith's 2 thoughts on doing that. 3 The third criticism that I have is his 4 discussion of the pliofilm cohort studies in which he 5 purports to identify that the failure of the pliofilm 6 cohort studies to identify an association between 7 benzene exposure and NHL mortality doesn't exclude the 8 possibility of that association. 9 And he has the opinion that the low mortality 10 and long latency of NHL limited the power of that study 11 to detect an association. 12 And if he were sincere about that opinion, that 13 same issue would, of course, be present in all mortality 14 studies. And therefore he should exclude from his 15 consideration all similarly constructed studies, which 16 he has not done. 17 Q Any other criticisms? 18 A Those are the major ones. 19 Q Okay. Have you read the Delzell study or the 20 Unocal -- it is the nested case control study that
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21 Delzell did of the Unocal cohort? 22 A You would have to show it to me. I do not 23 recall what study that is. 24 Q It is not published. 25 Have you read any epidemiologic studies for
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1 your work in this case which are not published? 2 A Yes. 3 Q Okay. And was one of those the Delzell study? 4 A I don't recall it. 5 Do you have a copy of it? Could you -6 Q I could get one. I will do that in a moment. 7 What other non published epidemiologic studies 8 have you reviewed for this case? 9 A We'd have to go through the pile. 10 Q Are they all on that literature list? 11 A Well, I am not sure. Some of the things that I 12 have reviewed are not on list so I am not sure that they 13 are all on there. 14 Q Well, are you able to identify for me what 15 literature you have reviewed, epidemiologic literature 16 for this case that you have reviewed that is not on the 17 literature list that you prepared? 18 A Well, we'd have to go through it. I think, for 19 example, the Schottenfeld book chapter is not on the 20 list.
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21 Q Excuse me, my question was about epidemiologic 22 studies. 23 Are there any epidemiologic studies that you 24 have reviewed for this case that are not on the 25 literature list that you prepared?
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1 A The Schottenfeld chapter is an epidemiology 2 chapter. 3 Q But it is not an epidemiologic study, is it; 4 it's a review? 5 A Right. 6 Q Are there any epidemiologic studies that you 7 have reviewed for this case that are not on the 8 literature list which has been marked Exhibit 5? 9 A I would have to look. 10 Q Offhand can you think of any? 11 A Well, there was one by Steven Lamm that I 12 reviewed that hasn't been published and I don't think it 13 is on that list. 14 Q Could I see that. 15 MS. PROSSER: We're going to go off the record 16 for just a minute. 17 MR. METZGER: We will go off the record while 18 he is finding things. 19 (Brief recess.) 20 MR. METZGER: Back on the record.
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21 Q Just for the record, the Lamm document that you 22 referred to is entitled, "Benzene and Non-Hodgkin's 23 Lymphoma-An Analysis of the Literature," which is Steve 24 Lamm's litigation review of this in 1999 unpublished; is 25 that correct?
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1 A Well, I don't know if it is his litigation 2 review. 3 Q I know that. You don't have to verify that. 4 A Well, it has a date of March 3, 1999 on it. 5 Q All right. Okay. And were there any other 6 studies that you found that you have reviewed, 7 epidemiologic studies that are not on your literature 8 list? 9 A I didn't look. I didn't realize that I was 10 supposed to do that. 11 Q Before you do that, let me just show you this 12 document which is entitled, "A Case Control Study of 13 Leukemia, Non-Hodgkin's Lymphoma and Multiple Myeloma 14 Among Employees of Union Oil Company of California" by 15 Delzell, et al., dated September 8, 1992. 16 Have you ever seen that before? 17 A I don't recall it. I don't know. 18 Q All right. 19 MS. PROSSER: How are you spelling Delzell? 20 MR. METZGER: It is D-e-l-z-e-l-l.
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21 Okay. We are done. 22 THE WITNESS: Thank you. 23 MR. METZGER: I will get a check. Let's see, 24 it is a hour and 45 minutes at 525. 25 Off the record.
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1 (A discussion was held off the record.) 2 MR. METZGER: Back on the record. 3 I will propose that the court reporter may 4 forward the original transcript to -5 MS. PROSSER: To Deborah Prosser. 6 MR. METZGER: -- to Deborah Prosser, who will 7 make it available to Dr. Garabrant; that he may sign it 8 under penalty of perjury under the laws of the State of 9 California and of the United States so that he need not 10 round up a notary. 11 Dr. Garabrant, will you be kind enough to make 12 any changes or corrections on the pages of the 13 transcript where the testimony occurs and on the 14 correction sheet at the end so we may know where they 15 are? 16 THE WITNESS: You want them in both places? 17 MR. METZGER: If you would. 18 THE WITNESS: Sure. 19 MR. METZGER: I find it helps to have it on the 20 pages so there is no question at trial as to what the
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21 testimony was. 22 MS. PROSSER: That is fine. 23 THE WITNESS: Yeah. Rather than duplicating 24 it, could I just -25 MR. METZGER: Copy the pages.
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1 THE WITNESS: -- just list the page numbers, so 2 page 9, page 20, page 23 -3 MR. METZGER: That is fine. 4 THE WITNESS: -- so you could see it. 5 MR. METZGER: That's fine, sure. Just put 6 those on the correction sheet. 7 And then you will return the transcript to Ms. 8 Prosser, who then forward it on to me; that I will 9 preserve it and make it available for trial and hearing 10 on reasonable request; if for any reason the original is 11 not signed or returned or it is lost, a certified copy 12 may be used with full force and effect. 13 We don't have trial for a long time in this 14 case. 15 MS. O'DONNELL: January 7th. 16 MR. METZGER: Is 30 days enough for you to 17 review this upon receipt, 45? 18 THE WITNESS: Yeah, 45 because I have a busy 19 month. 20 MR. METZGER: So 45 days from the transmission
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21 to Deborah Prosser you will have to do that. And you 22 will notify us of the changes shortly upon your receipt 23 of them? 24 MS. PROSSER: So stipulated. 25 ALL DEFENSE COUNSEL: So stipulated.
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1 MR. GRANNIS: This is John Grannis on the 2 phone. I'd like a copy. 3 (A discussion was held off the record.) 4 MR. METZGER: Back on the record. 5 THE WITNESS: In response to an earlier 6 question if I had spoken with any other experts in this 7 case, my memory was jogged. 8 Yes, I had a telephone conversation with 9 Ms. Prosser and I think Dr. Whysner in approximately -10 let's say last spring. 11 Q BY MR. METZGER: And was there any information 12 that Dr. Whysner provided you? 13 A I don't recall any. 14 Q There is nothing that he said that you are 15 relying on for your opinions in this case? 16 A That is correct. 17 Q Fine. I will get your check now. 18 THE REPORTER: Would everyone like a copy? 19 MR. HALL: I would. 20 MS. CHANG: Yes.
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21 MR. LEDGER: Yes. 22 MR. CORLESS: Yes. 23 MS. O'DONNELL: Yes. 24 MS. WILLIAMS: Yes. 25 (ENDING TIME: 10:50 A.M.)
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1 STATE OF CALIFORNIA ) ) ss
2 COUNTY OF LOS ANGELES )
3
4 I, the undersigned, declare under penalty of
5 perjury that I have read the foregoing transcript, and I
6 have made any corrections, additions or deletions that
7 was desirous of making; that the foregoing is a true and
8 correct transcript of my testimony contained therein.
9 EXECUTED this _______ day of _______________,
10 20___, at __________________, _______________________
(City)
(State)
11
12
13
14
15
16
17
18
19 ___________________________ DAVID H. GARABRANT, M.D.
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21 22 23 24 25
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1 REPORTER'S CERTIFICATION 2 3 I, SHERI A. PLY, CSR No. 6507, a Certified 4 Shorthand Reporter in and for the State of California do 5 hereby certify: 6 That the foregoing proceedings were taken before 7 me at the time and place therein set forth, at which 8 time the witness was placed under oath by me; 9 That the testimony of the witness and all 10 objections made at the time of the examination were 11 recorded stenographically by me and were thereafter 12 transcribed; 13 That the foregoing transcript is a true and 14 correct record of the testimony so taken. 15 I further certify that I am not a relative or 16 employee of any attorney or of any of the parties, nor 17 financially interested in the action. 18 I declare under the penalty of perjury under the 19 laws of the State of California that the foregoing is 20 true and correct.
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21 22 Dated this ______ day of ________________, 2007. 23 24 _________________________________ 25 SHERI A. PLY, CSR No. 6507
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