Document Rz5603rYoXzk2YVGOmnmenEE
NO. B-126,986
Hoyl e-Harold-Robert-021891.txt
RUSSELL H. ALLEN, ET AL.
vs.
JEFFERSON COUNTY, TEXAS
AMERICAN PETROFINA, INC.,
ET AL.
60TH JUDICIAL DISTRICT
IN THE DISTRICT COURT OF
INSTANT ACCESS TRANSCRIPTIONID
VIDEOTAPED DEPOSITION OF: HAROLD ROBERT HOYLE FEBRUARY 18, 1991 VOLUME I OF III
NO. A-134,614
FRENCH HICKS, ET UX
BETHLEHEM STEEL CORPORATION, ET AL.
IN THE DISTRICT COURT OF JEFFERSON COUNTY, T E X A S
58TH JUDICIAL
DISTRICT
NO. E-t37,587
DELLA BAKER, ET AL. vs. CELOTEX CORPORATION, ET AL. IN THE DISTRICT COURT OF JEFFERSON COUNTY, TEXAS 172ND JUDICIAL DISTRICT
JOSEPH A. CLEBERT GLORIA GOMEZ CLEBERT
SUIT NUMBER 38,744 DIV."B"
18TH JUDICIAL DISTRICT
Page 1
Hoyl e-Harold-Robert-021891.txt
PARISH OF
IBERVILLE
MCCARTY CORPORATION, ET AL.
STATE
OF LOUISIANA
LORRAINE PEGGY WILLIAMS
SUIT NUMBER 39,404 DIV "D"
18TH JUDICIAL DISTRICT vs. PARISH OF IBERVILLE MCCARTY CORPORATION, ET AL.
STATE OF LOUISIANA
SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALMEDA
DONALD J. SANDERS AND WINNIE SANDERS, Plaintiffs,
vs.
CASE NO. 590826-0
FIBREBOARD CORP., ET AL., Defendants.
WINNIE SANDERS, Plaintiff, vs.
CASE NO. 621950-3
PG&E, ET AL., Defendants.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALMEDA
BARBARA WHITFIELD, ET AL., Plaintiffs,
vs.
CASE NO. 670704-4
FIBREBOARD CORP., ET AL., Defendants.
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO
SYCBERT S. FAIRCHILD, ET AL. Plaintiff,
vs.
CASE NO. 925508
ABEX CORPORATION, ET AL., Defendants.
2 INDEX 3
4 VIDEO DEPOSITION OF HAROLD ROBERT HOYLE 5
Page 2
FEBRUARY 18 - 20, 6
Hoyl e-Harold-Robert-021891.txt 1991
7 Direct 8
9
10
Examination-Ms. Clark
18
Examination-Mr. Covert 157
Examination-Mr. Hobson 194
Examination-Ms. Abrams 380
Examination-Mr. Hood
518
Re-Examination-Mr. Hobson
558
11
12 EXHIBIT INDEX
13 Exhibit No.
14
Description
Marked
15 Hoyle 1 "Results of Range Finding Skin
Contact Tests on Asbestos 7M,"
16 by K. J. Ol son, 4/24/58,
ST0000391-4001, 13 17 Hoyle 2 "Results of Range Finding 18 Toxicological Tests on a Floor
Tile Formulation Containing 19 an Expoxy Resin," by Ken Olson,
4/18/58, ST0000549-564 13
20 Hoyle 3 "Evaluation of Chemical Exposures
21 Received by R. R. Spencer of Coatings Technical Service, 433
22
23 Hoyle 4 24
25
Building," by J. Peterson, 1/29/58
ST006828-6843
13
10/26/64 letter ro R. C. Middleton from H. R. Hoyle with attached
Industrial Hygiene Sample Record,
10/7/64, taken at Ludington,
ST006762-6764
56
1 Hoyle 5 3/24/69 "A Survey and Evaluation of Pipe Coverers' Exposures To
2 Dusts From Asbestos Containing Insulation Materials
3 Encountered During Routine Pipe Covering Operations Within
4 the Midland Location of the Dow Chemical Company" by R. A.
5 DeGesero, ST006806-6819
6 Hoyle 6 10/23/69,, "Survey and Evaluation of Pipe Coverers' Exposure to
7 Dusts C ontaining Asbestos or Fiberglass, Ludington Plant,"
8 by R. A. DeGesero, ST0000647-659.
9 Hoyle 7 7/21/65,"Exposure to Fine Dusts 10 Encountered By Workers Cutting
Various Type s of Pipe Covering
Page 3
Hoyl e-Harold-Robert-021891.txt 11 Material," by E. J. Schneider,
ST0000568-586 12
Hoyle 8 Three letters:
10/7/68 to
13 H. R. Hoyle from R. C. Middleton;
10/30/68 to Richard F. Falk from 14 H. R. Hoyle; 10/31/68 to R. C.
Middleton from H. R. Hoyle,
15 ST006757-6761
16 Hoyle 9 2/28/72 letter to H. R. Hoyle from R. D. Black Re: Insulation,
17 ST0000890; 3/9/72 letter from
H. R. Hoyle to R. D. Black Re: 18 Insulation, ST0000889
19 Hoyle 10
"Air Sampling Instruments For
Evaluation of Atmospheric
20 Contaminants,"' ACGIH, "Inertial Collectors," by
21 Howard L. Kusnetz
22 Hoyle 11
"TLVS, Threshold Limit Values
for Chemical Substances in
23 Workroom Air Adopted by ACGIH
for 1973"
24
25 Hoyle 12
(Withdrawn)
2
66
66 97
97 Page 4
Hoyl e-Harold-Robert-021891.txt 97
262
262 313
3
1 Hoyle 13
8/19/69 "Minutes of sp ecial
Meeting Between UMWA-Management
2 Bargaining Committees Concerning Pipe Coverers Working With
3 Asbestos" ST0000366-389 348
4
5
6 Hoyle 7
8
Hoyle 15
14 10/21/71 "A Statistical Evaluation of Respiratory System Indicators Among Pipe Coverers," M. G. Ott,
ST00065888-6609 348
"Results of Air Analysis Made While Mixing Asbestos - Vinyl
Floor Tile, S. R. Johann, 5/6/55
ST006844-6648
481
9 Hoyle 16
"Industrial Hygiene Digest,
1937-8. "The Industrial Cancer
10 of Workers In Asbestos,"
M. Nordmann
568
Hoyle 17
"Dust Producing Operations in the
12 Production of Petroleum Products and Associated Activities,"
13
Roy S. B onsib, July 1937, Pg. 82
568
14
15 Hoyle 16
17
Hoyle 19
18 "Industrial Hygiene Digest," 1939, "Asbestosis," E. W. Bender
"Foundation Facts," May, 1945, photo of The Board of Trustees of Industrial Hygiene Foundation Spring Meeting 568
568
18 Hoyle 20 19
Photograph of Roy S. Bonsib
568
20 Hoyle 21
"1947 M.A.C. Values," Vol. 7,
No. 8, August 1947,"Industrial
21
Hyg iene Newsletter"
568
Page 5
Hoyl e-Harold-Robert-021891.txt
22 Hoyle 22
American Industrial Hygiene
Association "Hygienic Guide
23
Series, Asbestos"
568
24 Hoyle 23
"Industrial Carcinogens, tt
R. E.
25 Medicine"
Eckardt , 1959, "Modern Monographs in Industrial
568
4
1 Hoyle 24 "Primary Malignant Mesothelioma of the Pleura, " H. B. E isenstadt
2
and Wilson, 1960
568
3 Deft.
Armstg. 1
"The Origin and Basis of
4 Threshold Limit Values,"
Jeffrey M. Paull,
5
Amer. Jrl. Of Ind. Med. 1984
517
6 Deft 7
8
9
10
Armstg.
2 "A H ealth Survey of Pipe Covering Operations In Constructing Naval Vessels,"
Fleischer, Viles, Gade and
Drinker, irl. Of Ind. Hyg.
and Tox., Jan, 1945
517
11 Deft.
Armstg. Dow's Responses to Requests 12 to Admit, 7/7/90, response to
Question No. 4; Dow's Response
13 to Interrogatories, 7/3/90, responses to Question Nos. 8,
14
11C and 14.
568
15
16
17
18
19
20
21
22
23
24
25
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Hoyl e-Harold-Robert-021891.txt
I VIDEOTAPED DEPOSITION OF HAROLD ROBERT
3 4 6 7 8 10 II 12 13 14 15 16 17 18 19 20 21 22 23
24 25
HOYLE, called as a witness by Defendant Dow Chemical Company, taken before Emanuel A. Fontana, Jr., Certified Shorthand Reporter in and for the State of Texas, at the DeLand Hilton, 350 International Speedway Boulevard, DeLand, Florida, on the 18th day of February, 1991, beginning at 9:38 a.m., pursuant to Notice, the Texas, Louisiana and California Rul es of Civil P rocedure, and the following stipulation and waiver of counsel:
Mr. Hers chel L. Hobson, of the Law Offices of Herschel L. Hobson, 2190 Harrison, Beaumont, Texas, 77701,, appearing for the Allen Plaintiffs.
Mr. George R. Covert, of the law firm of Messrs. Covert & Braud, P. 0. Box 82080, Baton Rouge, Louisiana, 70844-2080, appearing for the Clebert and Williams Plaintiffs.
6
1 Ms. Denise Abrams, of the law firm of Messrs. Kazan, McClain, Edises & Simon, 171 3 Twelfth Street, Third Floor, Oakland, California, 4 94607, appearing for the Sanders Plaintiffs. 5 6 Ms. Sandra F. Clark, of the law firm of 7 Messrs. Mehaffy & Weber, 2615 Calder Avenue, 8 Beaumont, Texas, 77704, appearing for Defendant 9 Dow Chemical Company.
10 11 Mr. Duncan S. Stuart, In-House Counsel 12 for The Dow Chemical Company, 2030 Willard H. Dow 13 Center, Midland, Michigan, 48674, appearing for 14 Defendant The Dow Chemical Company. 15 16 Mr. Robert H. Hood, of the Hood Law 17 Firm, 172 Meeting Street, Charleston, South 18 C arolina, 29401, appearing for the CCR
19 20 21 22 23 24 25
Defendants.
Mr. J. Thad Heartfield, of the law firm of Messrs. Benckensteinl Oxford & Johnson, Third Floor, First Interstate Bank Building, P. 0. D rawer 150, Beaumont, Texas, 77704, appearing for Defendant M. H. Detrick Company.
7
1 Ms. Gail C. Jenkins, of the law firm of Messrs. Benckenstein, Norvell, Bernsen & Nathan, 3 2615 Calder, Sixth Floor, Beaumont, Texas, 77702, 4 appearing for Defendants Mobil Oil Corporation and Fina Oil & Chemical Company.
Page 7
Hoyl e-Harold-Robert-021891.txt 6 7 Mr. William E. Schweinle, Jr., of the 8 law firm of Messrs. Stubbeman, McRae, Sealy,
Laughlin & Browder, Inc., 2400 NCNB C enter, 700 10 Louisiana, Houston, Texas, 77002, appearing for 11 Defendants American Petroleum Institute, Texas
12 Chemical Council, Chemical Manufacturers 13 Association and National Petroleum Refiners 14 Association. 15 16 Mr. John J. Hainkell III, of the law 17 firm of Messrs. Lemle & Kelleher, 21st Floor, 18 Pan-American Life Center, 601 Poydras Street. New 19 Orleans, Louisiana, 70130-6097, appearing for 20 Owens-Corning Fiberglas Corporation. 21 22 Mr. J. Wiley George, of the law firm of
23 Messrs. Strasburger & Price, 4300 NCNB Plaza, 901 24 Main Street, Dallas, Texas, 75202, appearing for 25 Defendant The Travelers Insurance Company.
2
3
4
6
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8
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1
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Ms. Kathy Kubach, of the law firm of
Messrs. Dunn, Kacal, Adams, Pappas & Law, 2929
Allen Parkway, Suite 2600, Houston" Texas, 77019,
appearing for Defendants DuPont Corporation and
PPG Industries, Inc.
Mr. Kristopher E. Fernandez, of the law
firm of Messrs. Blackwell & Walker, 777 South Harbour Island Boulevard, Suite 780, Tampa, Florida, 33602-5707, appearing for Defendant Owens-Corning Fiberglas Corporation.
Ms. Katherine Armstrong, of the law firm of Messrs. Shadden, Arps, Slate, Meagher & Flom, 919 Third Avenue, New York, New York, 10022, appearing for Defendant Metropolitan Life I nsurance Company.
Mr. Thomas W. Duesler, of the law firm of Messrs. Adams & Duesler, 550 Fannin, Suite 830, P. 0. Box 7505, Beaumont, Texas, 77726-7505, appearing for Defendants Badger Engineering Corporation and Charter Oil Corporation.
Mr. James H. Powers, of the law firm of
Messrs. Roberts, Markel, Folger & Powers, 1010 Twenty-Four Greenway Plaza, Houston, Texas, 77046, appearing for Defendant Aber Company.
Mr. Gary A. Bezet, of the law firm of Page 8
8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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Hoyl e-Harold-Robert-021891.txt Messrs. Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Twenty-Second Floor, One American Place, Baton Rouge, Louisiana, 70421, appearing for Defendant Exxon Corporation.
Mr. David W. Ledyard, of the law firm of Messrs. Strong, Pipkin, Nelson & Bissell, San Jacinto Building, Beaumont, Texas, 77701-3255, appearing for Defendants Exxon Corporation and Chevron Corporation.
Ms. Ann L. Burkey, of the Law Offices of William M. Koziol, Rt. 22 and Kemper Dr., Long Grove, Illinois, 60049-0001, appearing for Defendant John Crane, Inc.
Mr. Christopher A. Conkling, USS-POSCO
Industries, P. 0. Box 471, 900 Loveridge Road, Pittsburg, California, 94565, appearing for Defendants USX Corooration and USS-POSCO Industries.
Mr. Peter Boyd Wells, III, of the law firm of Messrs. Wells, Peyton, Beard, Greenberg, Hunt & Crawford, 550 Fannin, 6th Floor, Beaumont, Texas, 77001, appearing for Defendants Bridgestone/Firestone and Bethlehem Steel.
Mr. D. Allan Jones, of the law firm of Messrs. Orgain, Bell & Tucker, 470 Orleans Street, Beaumont, Texas, 77701, appearing for Defendants Atlantic Richfield Company, Quantam Chemical Company, Temple-Inland Forest Products Corporation and Gulf States Utilities Company.
2 3 4 5
1 IT IS STIPULATED and agreed by and between counsel for the respective parties hereto
3 that the deposition of the witness named in the 4 caption hereto may be taken at this time and
place before the officer named in the caption 6 hereto; that said deposition, or any part 7 thereof, when so taken, may be used on the trial 8 of this case with the same force and effect as if
Page 9
Hoyl e-Harold-Robert-021891.txt the witness were present in court and testifying 10 in person; 11 THAT the necessity for preserving 12 objections at the time of taking is waived, and 13 that any and all legal objections to this 14 deposition, or any part thereof, may be urged at 15 the time same is sought to be offered in evidence 16 on the trial of this cause; except, however, that 17 objections to the form of the question and/or 18 responsiveness of the answer must be made at the 19 time of taking, or else such objections are 20 waived; 21 THAT the original of this deposition 22 shall be presented to Ms. Clark, who shall in 23 turn submit it to the witness for his examination 24 and signing, and thereafter, shall return same to 25 the officer taking this deposition;
12
1
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1
21
THAT if the signed original is not presented to Ms. Clark prior to the time of trial, a copy may be used in lieu thereof.
9 0 2 3 4 5
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Hoyl e-Harold-Robert-021891.txt
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1
3
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6
7
8
9
10
11
12
13
14
15
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(Whereupon, Hoyle Exhibit Nos. 1, 2
and 3 were marked for identification.)
THE VIDEOGRAPHER: 9:38 a.m.
On the record.
The time
is
HAROLD ROBERT HOYLE was called as a witness by Defendant Dow Chemical Company and, being first duly sworn, testified as
follows:
MS. CLARK: I believe, at this
time, we're going to do appearances of counsel. My name is Sandra Clark, and I'm here on behalf
of the Dow Chemical Company. MR. STUART: My name is Duncan
Stuart. I am in-house counsel for the Dow Chemical Company.
MR. HEARTFIELD: I'm Thad Heartfield. I'm counsel for M. H. Detrick.
MS. JENKINS: I'm Gail Jenkins. I'm counsel for Mobil oil Corporation and Fina Oil and Chemical Company.
MR. SCHWEINLE: I am Bill
Schweinle. I'm counsel for the American Petroleum Institute, the Texas Chemical Council, the Chemical Manufacturers Association, and the National Petroleum and Refiners Association.
MR. HAINKEL: I'm John Hainkel, counsel for Owens-Corning Fiberglas Corporation.
MR. HOOD: I'm Bobby Hood. I'm counsel for CCR.
MS. KUBACH: I'm Kathy Kubach, counsel for DuPont and PPG Industries.
MR. FERNANDEZ: I'm Kristopher
Fernandez and I'm with Owens-Corning Fiberglas, on behalf of Owens-Corning.
MR. COVERT : I'm Gerry Covert in
the Louisiana cases, Clebert and Stewart. MS. ABRAMS: Denise Abrams for Page 11
17 18 19 20 21 22 23 24 25
15 1 2 3 4
6 7 8
10 11 12 13 14 15 16 17 18 19 20 21
Hoyl e-Harold-Robert-021891.txt Plaintiffs, the Sanders, from California, in the case of the Plaintiffs.
MS. ARMSTRONG: Kathy Armstrong for Metropolitan Life Insurance Company.
MR. GEORGE: Wiley George for The Travelers.
MR. HOBSON: Herschel Hobson, representing the Plaintiffs in the Allen case.
MR. DUESLER: Tom Duesler, for
Badger Engineering and Charter Oil. MR. POWERS: Jim Powers for the
Aber Company. MR. BEZET: I'm Gary Bezet for
Counsel Exxon in the Louisiana cases. MR. LEDYARD: David Ledyard,
counsel for Exxon, Texaco, Chevron, and others in the Allen case, and Exxon in the Louisiana cases .
MS. BURKEY: Ann Burkey for John Crane, Inc.
MR. CONKLING: Chris Conkling for USX Corporation and USS-POSCO Industries, in connection with the Fairchild litigation in California.
MR. WELLS: I'm Boyd Wells. I'm representing Firestone in the Russell Allen case, and Firestone and Bethlehem Steel in the French Hicks case.
MR. JONES: I'm Allan Jones. I'm here for a group of four Defendants in the Allen
Page 12
Hoyl e-Harold-Robert-021891.txt 22 case and for a group of -- a larger group of
23 Defendants in the Baker and Hicks cases. 24 MS. CLARK: Is that everybody? 25 THE VIDEOGRAPHER: Yes.
16 1
3 4
MS. CLARK: I believe, before we
begin the deposition, that someone wanted to make an objection on the record.
MS. ABRAMS: Denise Abrams for the
Plaintiffs Sanders. I object to the use of this 6 witness in any capacity as an expert, and I also 7 object to his testifying regarding, either
implicitly or explicitly, any documents that have
not been provided to counsel. 10 I understand that the witness reviewed a 11 number of documents in a Michigan case, many of 12 which are currently under seal, and to my 13 knowledge, remain under seal, and I would ask 14 that those documents be provided to counsel prior 15 to cross-examination, so that we can have an 16 opportunity to know what he is relying on for his 17 information. 18 MR. COVERT: 1, too, would like to 19 make an objection, Gerry Covert. I would enter a 20 general objection, at this time, to any documents 21 other than those relating to the Dow facility 22 file-. 23 MR. HAINKEL: John Hainkel for 24 Owens-Corning Fiberglas. I'm only here in the 25 Clebert case.
17 1
3
MR. HOBSON: Is th is noticed in
French Hicks? MS. CLARK: Yes.
Is it noticed in Page 13
Hoyl e-Harold-Robert-021891.txt 4 French Hicks, did you say?
MR. HOBSON: Yes.
MS. CLARK: Yes.
MR. HOBSON: Have you got it?
MS. CLARK: Do I have the notice?
MR. JONES: That lady in the corner 10 has a copy. 11 MS. CLARK: We can get a -- we'll 12 get a copy of it. I don't have it with me right 13 now, but we'll get it to you this morning. 14 MS. JENKINS: Sandra, I assume, for 15 the record, that all of us are only making 16 appearances in the case in which our clients are 17 parties and were properly noticed. We probably 18 didn't specify that when we were going around the 19 room, but I want to make that clear. 20 MS. KURACH: I want to make that 21 clear for the record, too.
22 MR. STUART: It's noted. 23 MS. CLARK: Are we ready? 24 THE VIDEOGRAPHER: Yes, ma'am 25
18
DIRECT EXAMINATION
QUESTIONS BY MS. CLARK: 3 4 Q. Mr. Hoyle, would you state your full name, please? 6 A. My name is Harold Robert Hoyle. 7 Q. Mr. Hoyle, my name is Sandra Clark, and 8 we're here today to take your deposition concerning your experience at Dow and your 10 experience asindustrialhygienist. 11 Just as a way of introduction, would you 12 state your age, please, and tell us whether 13 you're married, and if you're married, how long 14 you were married, and that sort of thing? 15 A. Well, I'm seventy-nine years old. I am 16 married. My wife's name is Eleanor. We have two 17 children, one named John, and the other one named 18 Susan.
19 Q. I understand - 20 A. I've been married for - 21 Q. Go ahead. 22 A. -- not quite 50years. We're going to
23 ce lebrate it on the 28th of March. 24 Q. Okay. Thank you. 25 Are you currently employed?
19
1 2 3 4 5
A No. Q. All right. Are you retired? A. I'm retired. Q. And when did you retire? A. I retired at the -- my first
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Hoyl e-Harold-Robert-021891.txt
retirement was October lst., 1976.
Q. Were you ever employed by the Dow Chemical Company?
9 A. 10 Q. 11 A.
I was. And when were those years, please? I was first employed by Dow in 1941,
for
the summer. At the time, I was a schoolteacher.
I returned to Dow in 1942 for another summer
project, and I stayed on from that time on
15 Q.
What position
16 A.
-- until I retired.
17 Q.
All right. What position did you
hold
most of the time that you worked at Dow?
A. I was an industrial hygienist. Q. Well, would you explain to the jury when
and how you became an industrial hygienist?
A.
Yes.
Before I became an industrial
hyg ienist, I was a safety engineer. And the
industrial hygiene activity at Dow was being
taken care of on a case-by-case basis by Dr.
Edgar Adams, who was head of the Toxicology
Laboratory.
In 1948, there carpe a time when they
needed someone to work at industrial hygiene
full-time, and my background was that of a
chemist working in safety, and industrial hygiene
was a specialized part of safety in that it had
to do with the recoqnizinq and evaluating and
controlling of health hazards in the work
environment.
Q. I was going to ask you that, basically
to explain to the jury what an industrial
hyg ienist is and what one does.
A. Well, as I've said, by definition,
was the science of recognizing, evaluating and
controlling health hazards in the work
environment,.
And what wedid was to gointo th
workplace, observe-- first find out what
chemicals and formsof energy were present in
Page 15
Hoyl e-Harold-Robert-021891.txt
20 that workplace, then study the various jobs in 21 terms of levels of exposure which might e 22 the-various chemicals and forms of energy 23 And then decisionmaking depended 24 threshold limit values. Early on, when I first 25 become an industrial hygienist, we called them
21
3 4 5 6 7 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
22 1
7 8
10 11 12 13 14 15 16 17 18
1 concentration- -i 2 Q. All right. Well, I'll ask you about
that in just a minute, but - A. M-h'm.
Q. -- what I did want to ask you, or just
point out that you became an industrial hygienist, then, in 1948 or approximately 1948?
A. It was 1948, March,
the 8th day of March.
Q. And then how long position with Dow?
and did
I believe it was you keep that
A. Until I retired, approximately 35 years.
Q. What were the goals and objectives of industrial hygiene at Dow?
A. I think I -- it wasn't 35 years as an industrial hygienist, because there was a period of time when I was a safety engineer.
Q. All right. A. So it was from 1948 until 1976. The - the arithmetic wouldn't come out right. Q. Okay. Well, it might if I did it, but anyway.
So from 1948 to 1976, you were an industrial hygienist?
A. M-hlm.
Q. What were the goals or objectives Industrial Hygiene Program at Dow?
the
3 A. Our purpose was to gather informa n
4 that would allow us to provide a safe, hea 5 work environment for Dow employees and furn
6 information to Dow customers, so that they
use what they bought from us in a safe man based on the data -- information we could furnish.
Q. All right. A. And our other interest was in the public in general, particularly concerning the surrounding landscape around Dow operations, but
not -- but not limited to that.
Q. All right. How did the Industrial Hyg iene Program develop at Dow? You started to
tell us -- I believe, earlier you said that you went to work with Dr. Adams; is that right?
19 A.
Yes.
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20 Q. 21 A.
Hoyl e-Harold-Robert-021891.txt And then how did it develop from there? Well, I was a one-man Industrial Hygiene
Department for about six months, and then I was joined by another man, Ed Schneider, and it
developed as the company grew, and as the
interest in controlling health hazards in the
work environment grew, generally. Q. And where was your department located?
A. We were a part of the Biochemical
Research Laboratory. And the Biochemical Research Laboratory included several different laboratories, of which one was toxicology.
When I first started, industrial hygiene was not well separated from toxicology in the structure. Later on, it became separate.
Q. And this was -- what town was all this located in?
A. I was -- I was in Midland, where --
which 14 15 16
is the Q. A. Q.
home of the Dow Chemical Okay. In -Midland, Michigan. In Midland, Michigan,
Company. not Midland,
Texas ?
A. Not Midland, Texas.
Q. All right. So you fit into the program as be ing the industrial hygienist; is that
correct?
A. I was the first full-time i ndustrial
hygienist at Dow.
Q. What kind 0
did you have to
become an industrial
St?
A. Well, at the time I became an industrial
hygienist, and there was very little formal training available in the United States, so my
training was that of a chemist. Many people
doing industrial hygiene were engineers, although there were quite a few chemists involved, and
quite a few biochemists. my training was that of
a chemist.
Q. All right. And you -- you had a college degree in chemistry; is that correct?
11 A. Yes, I did.
12 Q.
Where did you go to college?
13 A.
Central Michigan University.
14 Q.
All right.
15 A.
And I had graduate training at the
Univers ity of Michigan.
17 Q.
All right. In chemistry?
18 A.
No. In education.
19 Q.
All right. That's right.
20 What about other training that you had,
other than training on the job?
A. Well, there were,, from time to time, seminars and short courses, I guess you might call them. And when they were available, I
Page 17
Hoyl e-Harold-Robert-021891.txt 25 availed myself of them, and
25 1 Q. Do you have 2 A. Go ahead. 3 Q. Do you have any estimates of how many of
4 those seminars and training courses that you
might have attended in your 28 or 30 years as an 6 industrial hygienist? 7 A. Oh, at least a hundred, I think. Many B of them, I was a lecturer, but I usually stayed
for the full length of the seminar and learned
10 quite a bit each time. 11 Q. Are you a member of any industrial 12 hygiene professional organizations?
13 I'm a member of the American -- AIHA,
14 n Industrial Hygiene Association, and als
15 16 Q.
dustrial Hygie What is the American Academy of
17 Industrial Hygiene? 18 A. Well, people who are certified in
19 industrial hygiene become members of the Academy. 20 Q. And what do you mean, "people who are 21 certified"? 22 A. Well, there's an American Board of 23 Industrial Hygiene which certifies people for the
24 practice of industrial hygiene.
25 Q. Are you board-certified in indus@ial
26
1 hygiene?
2 A . I am.
3 Q. And about how long have you been
4 board-certified in industrial hygiene?
5 A. As long, almost, as there has been a
6 certification available. I was grandfathered in.
7 Q. All right. When was that available? 8 A. The exact time, I guess, I can't tell
you. It was sometime in the 150's.
10 Q. In the 150's -- so it's since the
11 150's --
12 A.
I think so.
13 Q.
--- you' ve been --
14 A.
I don't remember exactly when. I can
15 look that up, I guess.
16 Q. No. That's all right. The jury is 17 probably going to hear of an organization called 18 the American College of Industrial Hygienists, or
19 the ACGIH? 20 A. I think that was American Conference of
21 Industrial Hygienists.
22 Q. Oh, thank you.
23 A. They were a group of industrial
24 hygienists who limited the membership to those
25 who were Government employees, and the only
1 exception to that I that know of is that they
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Hoyl e-Harold-Robert-021891.txt allowed some academics in who were technically
being paid out of tax money.
Q. All right. So you were not a member of
-the ACGIH?
A. I was not allowed to be. I was not
eligible.
Q. But were members of the ACGIH members of
the other industrial hygiene group of which you
were a member?
A. They were members of AIHA, and many of
them were certified and, therefore, became
members.
Q. So you were -- you had associations and,
meetings with the ACGIH?
A. Oh, yes.
Q. Okay. Well, at Dow, how did the
Industrial Hyg iene Department interrelate with
other departments that were concerned with health
and safety?
A. Well, we worked closely with the
Medical
Department and the Safety Department, and we were
set up to offer assistance or help to line
management, who had the direct responsibility for
mai ntaining healthful irii safe working
environments within the company.
Q. Okay. When you say "line management,"
what are you talking about?
A. Well, as opposed to staff functions.
These were people who had direct control of the
department, somehow or other. Q. All right. A. And in my function, I was both line, as
far as industrial hygiene is concerned, and staff, as far as the rest of the company was concerned.
Q. Okay. And so when you're talking about line management, you may be talking about supervisors or -
A. I'm talking about anything from the foremen right on to the general manager.
Q. All right. How did you communicate among the different departments at Dow?
A. Well, it was done in a number of
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diffe rent
We checklist
Hoyl e-Harold-Robert-021891.txt
ways.
developed a datasheet, which was a type of thing which allowed us to give
information concerning the toxic properties of a -- of a material, and also to relate the necessary personal protection to four different
categories of operation.
Q. All right. Well, I'm going
well -
we'll just go on to what I had the court reporter
previously mark Exhibit 1 to the Hoyle
deposition.
I believe that this contains a
datasheet, so if -- let me hand you what's been
marked Exhibit 1 and see if you can -- if you
recognize this document, and if you do, if you
can identify it?
A. This is a report of what was called a
range finding, or class one toxicological test,
and it covers a material identified as Asbestos
7m.
Q. Okay. Can you look in that report and see if it contains a datasheet?
A. It does, and maybe I should say that, routinely, whenever any material wasinvestigated in the toxicology laboratory, a datasheet was prepared, and it became a part of that report.
Q. Can you tell the jury what -- what was the-purpose of doing a datasheet on 7M cement? what -- what was it being used for?
A. Well, this material was -- it was used as a part of a formulation for floor tile, and
30 1 3 4 5 6
the investigator in the laboratory hadsome skin problems, and he picked out asbestos as the Material that hesent over to have tested on the skin, because of his own skin problems. Q. Do you know whether this formulation for floor -- floor tiles was ever manufactured by
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Hoyl e-Harold-Robert-021891.txt
A. No. The floor tile formulations, and there was more than one of them, were being investigated in a laboratory within the technical service and development area in Dow. And the purpose was to develop formulations using Dow plastics that would be useful to the floor tile industry, and this is a matter of developing uses for new materials.
Q. All right. So what you were doing, or
what they were doing here, to the best of your
knowledge, was not manufacturing floor tiles with
asbestos in them, but they were using this in a
laboratory 21 A. 22 Q. 23 A. 24 Q.
testing sort of function? Yes. Dow never made floor tile okay. I'm sure of that. Well, I didn't want that to be
con fusing , because that was a little bit
con fusing to me.
So this test was done on asbestos
because asbestos was used in this laboratory
setting to see if th
going to work?
A. No. May I -- i
Q. Well , let me
Why was it used?
9 A. Well
10 Q.
Yeah
11 A.
Well
was done simply because the investigator, the man in c harge of the laboratory, had a skin pr oblem.
Q. All right. A. He didn't know what the skin probl em what caused it, and one of the things that was done was to test this particular asbestos form form on -- on rabbits. Q. All right. And someone in the Toxicology Department did that? A. They did that, and as a matter of routine, they made this datasheet. Q. Okay. Now, would you explain to the jury what the findings on the datasheet showed? A. There's only one finding from the tox
investigation, and that is that it had no effect
on the skin.
Page 21
Hoyl e-Harold-Robert-021891.txt
3 Q. Okay. And that -
4 A. And there are some other categories that were checked here, based on what was known about
6 asbestos.
7 Q. All right. And that's what I wanted to
8 ask you to explain. The -- the categories that were checked, other than the test on the skin,
10 came from what source? 11 A. Came from general knowledge concerning 12 asbestos, which was available in the literature
13 and just generally known.
14 Q. All right. And if you look at that 15 datasheet, what were the -- what areas were 16 checked? 17 A. Well, they checked eyes, and it was -
18 there was no unusual effect on the eye.
19 Q.
All right.
20
A.
The
mesa ch-c--(-kmark here for--diist
t
21 and mist, and it says tha-t-"Dustv or misty
22 atmospheres may cause serious systemic injury."
23 Q. All right.
24 A. And that's -- that's -- that's a 25 sta tement that appears frequently in reports, and
33
1 was put in here as a checklist. And the reason
that it's checked where it's checked is because
3 it's known that asbestos could cause asbestosis.
4 A ll right. Now, was this datasheet devised for checking asbestos only?
6 A. Oh, no. No. In fact, there's a 7 sizeable number, thousands of these datasheets,
8 covering various materials that have been tested
or are in use in the work environments within
10 Dow.
11 Q. So the checklist was a generic sort of
12 checklist -
13 A.
That's right.
14 Q.
-- that was -- that could be -
15 A.
It could -- could be used to -- to give
16 information concerning toxic properties and 17 precautions to line supervisors. 18 Q. All right. And then what other markings 19 did you have on that? 20 A. Well, there's a back side to the sheet, 21 which is marked -- what I've talked about so far 22 is the toxicology side of the sheet. 23 Q. Okay. 24 A. And it simply describes the -- the toxic
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Hoyl e-Harold-Robert-021891.txt properties of the material as they were known to
us at the time. But on the other side of the sheet, we arbitrarily decided that operations within Dow would fall within one of four categories, which range all the way from no contact at all, which would be characterized by
remote operations. Probably the classic example is what's
done in most nuclear plants. And we would go all the way from that, with two categories in between, to a situation where there was no effort
made to control exposure. It's what I have characterized, in a slang way, I suppose, as
"scoop, 14 15 16 17
shovel Q. A. Q. A.
and bucket chemistry.,' So those are the range Was --
Those are the ranges? That's the range, and there are two
categories in between, one for continuing -- for continuous operations, and one for batch
operations. Q. All right. And did you make any
markings related to this asbestos that was put on this datasheet in response to those categories?
A. We did.
being
35
1 Q. All right. And what were those? 2 A. Well, for "no contact," our numbers were
all A's, and the Als indicated no precautions
required. That was for no contact, under "eyes,
skin and inhalation and ingestion." For "minor contact," which would be
batch operations, we suggested the use of safety glasses for under "eyes" and "no unusual precautions" for the others.
And under occasional daily -- well, I - I want to back up. May I? 12 Q. Yes. 13 A. That was minor contact that I just told
14 you. 15
Now I want to tell you about occasional
daily contacts, which is the batch operations. And, in my discussion, I turned those two
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Hoyl e-Harold-Robert-021891.txt around. I'm sorry for that.
Q. All right. A. But under the batch operation, we suggested safety glasses and dust respirators,
under "inhalation." Under "gross contact," where you might
have great clouds of dust - I've never seen this with asbestos but
it's possible. -- we had safety glasses with side
shields and air-supplied or self-contained breathing apparatus.
Q. Was there any key to what occasional
contact is, or what those -- what those letters
stand for? A. Well, the letters that I
that I
meant -- that I have here are keyed down below. Q. All right. A. And if it says "All under "Respiratory,"
that means no respiratory protection required. And -
Q. I see.
A. -- for instance, if it says "El' under
"Respiratory," then itsays right here -
Q. Okay.
A. -- that it is self-contained breathing
apparatus or air supplied.
Q. When you were filling out this
datasheet, and I think you had acomment down at
the-bottom, what does it say,"dust"
-
23 A.
It says "dust respirators."
24 Q. "Dust respirators"?
25 A. in other words, it says, here, "suitable
37 1 3 4 6
gas mask canister.,, Well, that got in there because most of what we make datasheets for we're talking about vapor or gases. And so we added the dust respirator because here we're talking about a dusty material, rather than -- than a vapor or a gas.
Page 24
Hoyl e-Harold-Robert-021891.txt 7 Q. What was the basis of your information
8 about the types of contact and whether a dust respirator ought to be used at certain times or
10 not, as far -- you said that you hadn't done 11 testing specifically at Dow on - 12 A. Well, our knowledge concerning asbestos 13 took --
14 Q. -- on dust, so where did your knowledge.
15 come from?
16 A.
-- came directly from the literature.
17 Q.
All right.
18 A.
The generally available information.
19 Q.
Okay. And in the generally available
20 information, were there reports of certain levels 21 of exposure?
22 A. Well, there was -- early on, there was a
23 list that was put together of numbers that 24 people -- that were thought, if you didn't go
25 above those concentrations, you would have no
38 1 2 3 4
6 7 8
difficulty. Q. All right. What was - A. As you went above those numbers, you
increased the likelihood of trouble. It wasn't ever meant that if you went above that level, you would immediately have trouble.
Q. All right. Were there numbers for asbestos already in the literature at the time you made this datasheet?
10 A. 11 Q. 12 A.
Yes. The number - And where - The number was fivemillion particles
13 per cubic foot, as we have it on our datasheet. 14 And that came right from -- at the time this 15 datasheet was written, it was the threshold limit 16 value. 17 Q. All right. Can you explain to the jury 18 what a threshold limit value is, just in general? 19 A. It's -- it's a number thatexpresses the 20 amount of the material that's to be found -- that 21 you can measure in the air. And the threshold 22 limit value was meant to be a guide with people 23 who had taken samples. It had numbers that 24 described the environment. 25 Then you went to the threshold limit
39
1 value, and if your numbers were below that
number, you shouldn't have to worry about a
3 health hazard.
Page 25
Hoyl e-Harold-Robert-021891.txt 4 Q. All right. 5 A. That was -- I think that's - 6 Q. Okay. How did you -- as far as a dust
7 concern, how did you measure whether you were 8 within the threshold limit values or not? 9 A. Well, with dust, the technique was a 10 very arbitrary technique. And in order to get 11 numbers that could be compared with the five 12 million particles, it was necessary that you take 13 the sample with a properly designed piece of 14 equipment that would -- and then that the sample 15 be treated specifically, as far as transferring 16 it to a dust counting cell, and then that you use 17 a microscope that had exactly the right optics. 18 This whole thing had to be right because 19 it was an arbitrary measurement. 20 Q. All right. The -- the equipment that 21 was used, was this something you were familiar
2 with? 23 A. Oh, yes. We used impingers, generally 24 what was called "small impingers." The important 25 thing here -- well, we bought the impingers. We
40
I didn't make them, but they were -- they were
manufactured to proper specs. And then you ran 3 t.hem at the right rate of air flow through the 4 impinger in order to -- in order to satisfy the
requirements of the method. 6 Q. Did you know how to conduct an air 7 sample study yourself? 8 A. Yes. I learned from one of the fellows
that did the developmental work in the first 10 place. The first use of this technique was 11 developed in connection with silica sampling in 12 Vermont. And Warren Cook, who was, I think, a 13 student at the time while that work was being 14 done up in Vermont, had been one of the people 15 that developed the technique for sampling. 16 And it just happened, that when I needed 17 to know how to sample dust, that he was the 18 industrial hygienist for the Zurich Insurance 19 Company, and Zurich had the Dow insurance 20 business, and so I a-sked him if he'd help me 21 learn how to count dust in the foundry that we 22 had,, He came and spent about a week with me, and 23 that's how I became an expert dust counter. 24 Q. In this -- Warren Cook, you said -25 A. M-hlm.
41
1 Q. was he the person who came up with
the list of the MAC'S, as you described the,-n?
3 A. He's the man, that up until Warren wrote
4 down the list of materials with numbers after
them, that were called MAC'S, what was --
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Hoyl e-Harold-Robert-021891.txt happened was that people talked to each other,
And the conversation would go like this, "If you
measured this material, how muchdid you find,
and what was the result of that, in terms of your
people?-"
Q. All right. So Mister -
A. And so he did a service to industrial
hyg ienists, because he gathered together all that
kind of information he could find, and he called
it an MAC.
Q. All right. And the-- the MAC's were -
were used before the threshold limit values -
18 A.
They predated threshold limit values.
19 Q. All right.
20 A. Threshold limit values were -- that was
a terminologyused after the American Conference
of GovernmentalIndustrialHygienists
took over
this MAC -
Q. All right.
A. -- list.
Q. I'm going to take this exhibit from you
for just a minute.
A. All right.
Q. The exhibit that I hadhanded you, which
is referred to as Exhibit No. 1, is a report that
includes the datasheet, and then it had some
other pages back here. Would this just be the
raw data that the
9 A. That's -
10 Q.
-- that this came from?
11 A.
That indicates what theyobserved when
they put the material on the rabbit's stomach.
Q. All right. And did you review this
report when it was prepared, or about at the time
it was prepare d?
A. No -- no. I only reviewed the
datasheet.
Q. All right.
A. The report was the business of the
toxicology laboratory, and you'll see two
toxicologists, names on there.
. Q.
So the only part of this report that you
were familiar with-- or notfamiliar withr but
the only part thatyou checked orreviewed -
A. I read the rei,@-,r7tf probably,, but the
part that I had responsibility for was the
datasheet.
Q. All right. And that would be your name
by "checked," H. R. Hoyle? A. Yes, ma'am. Correct.
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Hoyl e-Harold-Robert-021891.txt Q.I wanted to look at the second page of this report. When you indicated that you had - under "Occasional Daily Contacts" on this particular -
A. M-hlm. Q. -- setting, what was your -- what was your understanding of what this meant, as far as dust exposure or the threshold limits? A. Well, the threshold limit values were numbers that were supposed to represent a safe and healthfulwork environment for eight hours a day. And the occasional daily contacts, they - they might -- the kind of operation that we think of here that would -- would be what we called batch operations, where materials are introduced into equipment, and equipment is properly closed up, and then while you're putting the stuff in the equipment, you might have some exposure.
Then later on, you may open up the equipment to remove whatever is in there that
you're trying to make, and that would represent
another possible exposure.
Now, I can relate this to asbestos, in
my own experience, only by saying that if a
person were using asbestos as an insulating
material, the occasional contact would come when
he did something like cutting it.
Q. All right. And what about -- in your
experience, what about other types of uses, other
than the actual cutting of insulation material?
A. Within Dow, the only other use of
asbestos was in the chloralkali business.
Q. All right. Were the uses that you
observed, in your opinion, under the threshold
limit values as they were established at the time
-- at this time, of the five million particles?
A. I wouldn't -- my experience would have
told me to expect, that on the basis of
eight-hour exposures, they were indeed lower.
Our choice of dust respirators for
occasional contact indicates that -- that we saw Page 28
Hoyl e-Harold-Robert-021891.txt 22 the possibility of short periods of time when it 23 might have gone above that number and, therefore, 24 the dust re spirator. 25 That's a pretty conservative approach to
45
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7 8 10 II
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13 14 15 16 17 18 19 20 21 22 23 24 25
suggesting the respirator, but that's what we
chose to do.
Q. All right. I' m going to go on to a
different exhibit in just a moment, Mr. Hoyle -
A. m-h,m.
Q. -- but one of the -- when you were
saying -- we were talking about communication of information, the datasheet would be made on all the chemicals or all the materials that you felt that individuals would come in contact with when they're workingat -
A. Well, therewere two -
Q. -- Dow? A. There were two ways that we made the
datasheets. one I've already described, where it was a part -- it was done everytime that there was any material tested in the toxicology laboratory.
And the other way related to the industrial hygiene activity, in that the very first thing we did when we went into a department was'to inventory the materials and forms of energy in that department. And then each of those materials and forms of energy had to have a datasheet. Actually, the datasheet in this form
46 1 2 3 4 6 7 8
was only for materials. Q. All right. And this datasheet was -
was kept in the records at Dow in - A. Well, what happened to the datasheet, after they were made, was that the -- throughout the company -- and this gets beyond the geography at Dow, butincludes the -- the Dow operation I mean, the Midland operation, the Safety
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Hoyl e-Harold-Robert-021891.txt
Department and the Medical Department would have
received copies of all of them, and then we would
have sent -- sent copies to the various departments that we knew about who might have an
interest. And then there was another copy that went to a place called Central Research Index,
which was a repository for all Dow knowledge.
Q. All right. So that was -- information
was sent to various parts of the company, as you've described? 19 A. It did go on to the people that could 20 use it. 21 Q. Okay. So there was a threshold limit value already established for asbestos, or an MAC for asbestos at the time that -- that this datasheet was prepared; is that correct?
A. That's correct.
Q. Was -- did -- Dow manufactured a number
of different products. Did Dow manufacture a product with asbestos in it?
MS. ABRAMS: objection. Lack of
foundation.
It calls for speculation.
THE COURT REPORTER:
Ma'am, you're
going to have to keep your voice up. I didn't
hear the objection.
MS. ABRAMS: Lack of foundation,
and it calls for speculation. Q. (By Ms. C lark) All right.
Go ahead and
answer the question. 13 A. May I answer the question?
14 Q. Go ahead and answer the question. 15 A. I don't speculate when I say that
was no Dow product that had asbestos in it Q. All right. A. -- at the time I was working there,
anyhow. Q. All right. And the time you were
working there was from 1941 through 1946 - 22 A. Well -23 Q. up to 1946 -- 1976? 24 A. my knowledge concerning the
asbestos,
I think I should limit it to 148 to 176.
there
Q. Okay. And the datasheet was prepared on asbestos in this particular case because asbestos was in the floor tile formulation that was being tested?
A. That's the reason this particular
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datasheet was
7 Q. 8 A. 9 Q. 10
Hoyl e-Harold-Robert-021891.txt formed -- was -
And that's the one I'm talking about. And that's the one you're talking about. Right. When did you first -- when did you first
learn that asbestos could present a health
hazard, approximately? A. That was common knowledge at the time I
became
Q.
nature A.
an industrial hygienist, I believe.
All right. And what was -- what was the
of the hazard that you were aware of? There was -- there was a disease called
asbestosis, which resulted in fibrotic change in the lungs, and it was--- quite similar to something
called silicosis,-which-I--alluded to a-few
minutes ago.
Q. All right. Well, how did you believe
that such a potential hazard as asbestosis could
be controlled? What
what did the literature
say?
A. Well, if you -- if we maintained the environment so that it -- you didn't go above five million particles per cubic foot, it should be safe, according to the common --
Q. All right. So that you felt that the five mill ion particles TLV was the level below
which 8 9 10
you should -A . That's the guide that we Q . keep the exposure? A . that we used to make any
used -decisions
had to make concerning asbestos.
Q. All right. And you -- you indicated
from your study that there was no -- there was Dow product that was manufactured there that
no
contained asbestos?
A. That's correct. Q. Okay. And someone had asked the question, I think from the audience here,
your Exhibit No. 1, what is the date that
that in you had
signed this datasheet, so that everyone here
hear that?
A. The date I signed it was the 7th of
April, 1958, according to the numbers on the
datasheet.
MS. CLARK: I might offer that in
can a
minute. Q. (By Ms. C lark) All right. Were there
any -- and this might be a little bit redundant, but as I understand it, there were no dust
Page 31
Hoyl e-Harold-Robert-021891.txt studies done by your department at the time that
6 this particular datasheet was prepared in
7 connection with that datasheet; is that correct? 8 A. If when you -- if when you say, "my
department," you mean the Toxicology Laboratory,
10 that's true.
11 Q. Yes, sir. Yes, sir.
12 A. And -- but that -- I -- I wasn't
13 respons ible for the Toxicology Laboratory.
14 Q.
All right.
15 A.
That's why my answer is the way it is.
16 Q.
Okay. So the dust study -- the
17 Toxicol ogy Department did not do a dust study on
18 that particu lar occasion?
19 A.
That's right.
20
21 (Whereupon, there was a discussion held off
22 23 24 25
the-record, after which the video deposition continued as follows:)
Q. (By Ms. C lark) Well, I just -- I
51 1
3 4
thought
I thought I understood you to say that
on the occasion in question that this particular
exhibit was -- Exhibit No. 1 was prepared, this
datasheet, that the Toxicology Department did not
do a dust --
6 A. The only thing that was done was a --
7 Q. study.
8 A. was a skin test.
9 Q. Okay. Well,, I may have misheard you,
so
10 thank you. I think that's -- that's correct. 11 I'm going to show you what's been marked 12 as Hoyle Exhibit No. 2, and this is another 13 report we won't need to go through all of it in 14 detail, but just to -- it's, I think, companion 15 to the other one. 16 This one was dated April 21st, 1958. 17 And it -- would you identify that exhibit for us, 1 8 please? 19 A. This one reports the results of range 20 finding toxicological tests on a floor tile 21 formulation which contained an epoxy resin. 22 Q. All right. And this is the floor tile 23 sample that we were talking about earlier that 24 the other datasheet came from? 25 A. The other datasheet was -- described the
52
1 asbestos, which we find here. 2 Q. All right. 3 A. And, as you recall, the asbestos was 4 sent in as a separate sample, because of a skin problem that the investigator was having.
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Q. Okay.
A. That was not the only thing that was
tested. The other -- other materials within this
formulation were tested. We aren't looking at
the -- the reports, because the asbestos is the
only one is in that report that you showed me.
Q. All right. There would have been a
report on the other things -
14 A.
I' m sure there was, yes.
15 Q. Okay. So what does this report deal
16 with?
17
A.
This -- this reportdeals
with a whole
formulation. You take the whole mixture and put it on the animals, on or in them.
Q. All right. This was done by the Toxicology Department? 2 A. Yes.
Q. And there were findings that were listed on this particular report, and they had to do with the whole formulation?
1 A Yes 2 Q All right. 3 A. Andthey're -- they'rea little
different.
Q. Okay. And why would they be different?
A. Well, because there are other things
than asbestos in the formulation. One would
expect they might be different.
Q. All right. And this would be about the
same time, prepared about the same time as the
other one?
A. It -- yeah, the same time. It turns
through -- it turns out theycameacross
my desk
on the same day, apparently.
Q. All right. I notice that you have a
note at the bottom, where you have an asterisk.
It says, "Estimated on the basis of asbestos and
silica content."
A. M-hlm, yes.
Q. And can you explain what that has
reference to?
A. Well, in the formulation that was sent
in, it showed that sand, which is silicon
dioxide, or silica,represented 12.5 parts, and
Asbestos 7M, which is what we were talking about
a minute ago, represented 19 parts out of the total. There are no -- no testing was done that would have -- no dust testing done; therefore, the information that's passed along concerning dust is a judgmental thing based on the fact that it had sand and asbestos in it. And the rest of
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Hoyl e-Harold-Robert-021891.txt the formulation wouldn't have required any
unusual personal protective measures.
Q. Okay. So that was based on what you
knew from the literature at that time, that
they -12 A. 13 Q. 14 A.
No. That was -that would be okay? that was the common knowledge
concerning asbestos and silica.
Q. All right.
A. It represents what the toxicologists
knew about it. I probably knew the same thing.
Q. Okay. And that when -- you also checked
that datas heet and -- and --
21 A.
I did.
22 Q.
-- acknowledged that datasheet.
23 A.
I did, on the 7th of April, '58.
24 Q.
Okay.
25 A.
I think that's what -- it was April
of '58 on the other one. Anyhow, I think it was
the same day, by coincidence.
Q. G ive me just a second. And was it your
understanding, that although they were testing
floor tile formulation, that Dow did not
manufacture and sell this floor tile product?
A. Dow did not manufacture and sell the
floor tile. The floor tile formulations were
studied in a -- in one laboratory, one room Q. All right. A. -- at Dow. It never -- and it never go
beyond that point and wasn't expected to, within Dow. If it went beyond that point, it would h been in some customer's plant, the customer buying the epoxy resin, or I guess in that case, it was chlorinated polyethylene, but, anyhow, a resin from Dow.
Q. All right. What you were doing was trying to formulate a resin that could be used in a floor tile formulation for somebody else to use, if it would work out?
A. Sure. If they would want to use a Dow product, that's right.
Q. All right. Well, at this point, I want to'take just about a five-minute break.
1 A Okay.
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Hoyl e-Harold-Robert-021891.txt 2 Q. Thank you. 3 THE VIDEOGRAPHER: The time is
10:29 a.m. Off the record.
(Whe reupon, there was a brief recess, during which the proceedings took place as 9 follows:) 10 11 MR. STUART: Let's have this 12 marked. 13 14 (Whe reupon, the instrument referred to
by counsel was marked for identification as Hoyle Exhibit No. 4.)
(Whe reupon, the brief recess was
concluded, and the video deposition continued as follows:)
21
22 -
THE VIDEOGRAPHER: The time is
23 10:42 a.m.
24 On the record. 25 Q. (By Ms. Clark) Mr. Hoyle, we're -- we
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were talking about threshold limit values a
little bit before.
You had testified that the threshold
limit value for asbestos was about -- was five
million particles per cubic foot of air. What -
how long was that the threshold limit value, the
established one?
A. Well, it wasn't changed until around
1970, I think, something like
that.
Q. All right. So through the time you were
an industrial hygienist in the late 140's, 150's
and 160's, the threshold limit value remained the
same, is that correct, for asbestos exposure?
A. Yes.
Q. All right. Did you conduct any dust
studies related to asbestosexposure yourself, have someone conduct them?
A. We made measurements of the amount of dustduring the various operations where asbestos
Page 35
Hoyl e-Harold-Robert-021891.txt 20 was present. 21 Q. All right. And how did you do that - 22 what -- what parameters did you set up?
23 A. We used -- we used the techniques that I 24 described to you before, where we used the 25 impinger to take the sample, and then either
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counted the dust ourselves or had it counted.
By that time
3 Q. 4 A. 5 Q. 6 7 A.
Dow had a microscopy laboratory.
A microscopy - Laboratory, m-h'm. Laboratory? That -- what is that?
Well, this is a group of people who use
microscopes to look at things. They're experts in microscopy.
Q. All right. Well, you've talked about
five million particles and about counting dust, and I think the jury may be wondering how you
count five million particles of something. Do you sit there -- I have a vision of
sitting there and taking a long time and counting
them one by one.
17 A. 18 Q. 19 A.
No. How is that done?
No. You do it by taking a part of
the
total sample. And then another part of the technique is to have the field that you're looking at divided by little squares that you know the size of, and you can -- you can count
relatively small numbers, and then by applying the right kind of arithmetic, you can come back
in
to a cubic foot of air.
QA.
All right. See, the amount of air that's sampled in
the sample you actually look at is pretty small.
I mean, that's only a small part of the total
sample that you look at. Q. So you count a small percentage of that,
and then you extrapolate that up to the
9 A. That's true. 10 Q. -- to the five million, or something?
II A. And you count more than one field so
that you have something to average. Q. Okay. And so you have indicated that
you -- you tested the air sample on several different jobs -- or several different tasks, I
guess would be a better way to describe it. Can you just tell us, briefly, how you
did that, how you set up the test?
A. Well, there were -- part of the data that I was referring to is reported in a report that we looked at the other day which was a matter of actually doing an in-depth industrial
Page 36
Hoyl e-Harold-Robert-021891.txt 23 hyg iene survey in work environments, where 24 asbestos was present. Those were the work of Roy 25 DeGesero I'm talking about.
WORLDWIDE COURT REPORTERS, INC. HOUSTON(713)651-1100/BEAUMONT(409)833-0016
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And the other sampling was done in the
chlorine cells, or the chloralkali plant, as it's
called in some parts of Dow,, where the jobs were
evaluated, which involves the use of asbestos.
Q. All right. What -- what jobs did you
think involved the use of asbestos, what jobs
were you looking at?
A. Well, insulators were -- do use some
insulation that contains asbestos. This doesn't
represent a -- their full job, or anything of
that kind, because pipe covering or as -- or
insulation that's like on the vessels, is put on
for a number of reasons. It -- it's always,
somehow or another, to control temperature. But
a whole lot of the insulating that was done was
to avoid the effect of low temperature; in other
words., freezing up outdoors in Michigan -
Q. All right.
A. -- as opposed tothe asbestos-containing
insulation which you used in high temperature
applications and represented less in terms of the
total use of pipe covering or insulating
material.
Q. All right.
A. It -- it --it wasn't a
high
percentage. I don't Icnow exactly what percentage
of the total it would have been.
Q. All right. I think we need to kind of
put this in terms of time and when certain --
when certain tests were done.
The tests that you're talking about that
Roy DeGesero did, that I think will be an exhibit
later on in your deposition - A. Yes, it will come along a little later.
Q. -- what -- approximately when were those tests done?
A. They are done in the late 160's. Q. All right. In the late 160's, those were done. And did you -- had youconducted a test earlier than that, yourself, on a pipe coverer?
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Hoyl e-Harold-Robert-021891.txt A. Probably in the late 150's, but in the 150's sometime or another. What I did was get a pipe coverer to do the different things
that pipe coverers have to do. It wasn't done under actual pipe covering conditions in the
plant, because my purpose was to see how much dust he would create cutting pipe covering and putting it on pipe, and this kind of thing, so that we could make some judgments concerning the
recommendations for respiratory protection. Q. All right. And this was -- was done,
you said not under actual working conditions, but you checked -
A. It was done in an indoor environment, because most of our Michigan environment, work
environments are indoors.
Q. All right. That's what you were saying," then, in Michigan, a lot of the pipes are indoors
because of the freeze -- because of the cold, and
all that?
A. That's right, m-hlm. Q. So that was -- your first sampling that you did in the late 150's was of that work -
15 A. Yes. It was not a -16 Q. -- situation?
17 A. It was not anextensive investigation.
le Q. All right.
19 A.
It was done -- it was done simply to
get
an indication of the levels that you might run into while doing different things that they told me they did.
Q. All right. Did -- did you reach any conclusions about what -- what should be done related to certain tasks and jobs that someone
63 1 2 3 4 6
working directly with insulation did? A. There -- there were a couple of things
that he did where the -- where there was some obviously dusty conditions. And I did the sampling in a different way than the way I've described to you.
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Hoyl e-Harold-Robert-021891.txt There was on the market and in our hands, at that time, something called a Bausch & Lomb dust counter, and it didn't fit the cookbook for counting dust, but it did give you an indication of dirtiness, and it was a conservative approach because you could see a lot more dust in a dark field microscope, which is
what B & L dust counter was. I used that because it was more
convenient and it gave me -- I knew that whatever
numbers I got would be high.
Q. All right. A. And, therefore, if I made a judgment
based on those numbers, I would be conservatively
sa fe .
-Q. Okay. Now, did you come to any
conclusion about any of the tasks that monitoring for at that time?
you
were
A. Yes. Those that were obviously dusty,
there were a couple. One was sawing, cutting,
and the other was removal of old pipe covering.
Q. All right. And this was on an indoor,
encl osed - 5 A. 6 A. 7 A. 8 Q.
It was in the shops -place?
on a shop bench. Okay. And what recommendation would you
have 10 11 12
made on A. Q. A.
that -Simply that they
-- response?
Simply that they
wear wear
-a dust
respirator
while they were doing those jobs.
Q. All right. Otherwise, you felt that that they were well within the TLV'S?
A. That's right.
Q. All right. Now, what we need to do
can tell we're -- we've already been admonished
once by the court reporter, and that's I'm
talking when you're talking, and you're talking
when I'm talking, so you need to let me finish
the.question, and I need to let you finish your
answer, if that's all right.
A. Okay.
Q.
So you felt that a dustrespirator
might
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Hoyl e-Harold-Robert-021891.txt
be used if conditions exceeded the threshold
limit values of five million particles; is that
correct? 4 5 it. 6
A. Q.
That's generally the way we approached All right. You had referenced a little
bit earlier some studies that
or 169. A. M-hlm.
Q. And we want to look at
were done in 1968 those in just a
minute.
MS. CLARK: I'm not sure, do we
have those exhibits overthere, theDeGesero
exhibits? Q. (By Ms. Clark) One of the questions that
I have, when you said that you're counting dust
samples, and so forth, were you counting -- did you consider the threshold limit value, when you
referenced it, tobe total dust or to be -- how
did 21 22 23
you
-A. Q. A.
The first -How did you look at that? The first thing we did, which I Just
finished describing to you, was not an in-depth study, and we just simply used all the dust that
we saw. Q. All right .
So when you -- when came to
your conclusion about var ious dust leveis, you
were talking about total dust levels?
A. Yes. We knew there was asbestos
present, but we didn't -- we didn't try to
characterize the sample, in terms of percent of
asbestos.
Q. All right. The court reporter is
marking a couple of exhibits for us.
(Whe reupon, the instruments referred to
by counsel wee marked for identification as Hoyle Exhibit No. 5 and 6.)
Q. (By Ms. Clark) Mr. Hoyle, I'm going to hand you what's been marked as Hoyle Exhibit No. 5, and I would like for you to identify that, if you can.
Page 40
Hoyl e-Harold-Robert-021891.txt
20 MR. COVERT: Excuse me, Sandra.
21 Could you let us know what you're introducing? 22 MS. CLARK: That would be nice,
23
wouldn't it?
I'm sorry. I kind of -- that was a
24 report that -- let me look at it -- called "A
25 Survey and Evaluation of Pipe Coverers'
67
1 Exposure," and it is by R. A. DeGesero, and it's
dated March 21, 1959.
3 MR. JONES: Sandra -
4 MS. CLARK: M-hlm.
MR. JONES: I knowlie's 6 distributing some now, but we haven't seen "4,11 7 and I was just wondering if you are intentionally 8 skipping over four 9 MS. CLARK: Yeah, I'm -- I'm 10 intentionally skipping that number and coming 11 back to it, so - 12 MR. JONES: Okay. 13 MR. BEZET: 11411 is the October 14 26th, 1964 letter to R. C.Middleton - 15 MS. CLARK: Yes.
16 MR. JONES: 169.
17 18 19 20 21 22 23 24 25
MS. CLARK: Mr. Hoylereferred to this one earlier, and so I want to go ahead and talk about this one.
(Whe reupon, there was a discussion held off the-record, after which theproceedings continued as follows:)
MS. CLARK: We have some extra
68
I copies of it around. If you have one -- does
everybody have access to one? 3 MR. GEORGE: How about one more 4 over here?
5 MS . JENKINS: Do you have any extra 6 ones? 7 MS . CLARK: I don't know that we
8 have an extra one.
9
10 (Whereupon, there was a discussion held off
11 the record, a fter which the proceedings continued
12 as follows:)
13
14 Q. (By Ms . Clark) All ri ght. Do you have
15 that exhibit?
16 A.
I do.
17 MS. CLARK: Where is my copy?
18 Thank you.
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Q. (By Ms. Clark) All right. Would you
identify for the jury what this report is, please?
.A. This is a report of a study -- a survey
of pipe coverers, exposure to dust from
insulation containing asbestos.
Q. All right. And
and who prepared this
study?
A. The work was done by Roy A. DeGesero,
who was an employee who reported to me, at that
time, an industrial hygienist.
Q. All right. Now, Roy DeGesero was an
industrial hygienist at Dow? 7 A. Yes, ma'am. 8 Q. And he reported toyou? 9 A. Yes, ma'am. 10 Q. Did you haveanything to do with the
plan or setup of this particular study? A. I was involved in the planning. There's
another name that maybe should be mentioned. Q. Surely. A. Because Ralph Langner had, at this time,
become Manager of Industrial Hygiene for the Michigan Divis ion, and he didn't yet have a crew of industrial hygienists. During this period of time, people working for me were assigned to projects that he might identify in the Michigan Division. So he was involved in the planning, and-so was I.
Q. All right. A. But Roy DeGesero was rather a new man, and I was responsible for the quality of his
performance. It's a little complicated, but
Ralph was responsible for the planning of the
project, but I was also involved in it.
Q. Okay. I wanted to ask you a little bit
about this, as an aside. You said that there was
the Michigan Division, and so you, at this time,
were a little bit -- you were not directly in
charge of a division, but you were a little apart
from that; is that correct?
Page 42
Hoyl e-Harold-Robert-021891.txt 10 A. Well, what happened was that when I
11 became an industrial hygienist, there wasn't any 12 identified difference between the corporation and
13 the Dow Chemical Company in Michigan. 14 As time went along, then the various 15 divisions of the company were organized and . they
16 got their own industrial hygiene functions.
17 Q. Okay.
18 A. And then mine became a corporate
19 function, with some responsibility and contact
20 with these various industrial hygiene functions.
21 Q. So there was a division in Texas, as I
22 unders tand it --
23 A. 24 Q.
That's right. And there was a division in Louisiana?
25 A.
Yes.
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1 Q. And then there's a Midland Division? 2 A. And there's a Western Division. 3 Q. And a Western Division. 4 A. And a Eastern Division. 5 Q. And each of those, at some point in
time, had its Departments?
A. As soon justified it,
own Safety and Industrial Hygiene
as they grew to the size that then they had their own, that's
true.
Q. All right. And so what was your
responsibility, then, to the industrial hygienists that were in the -- in the divisions?
A. Well, it was a dotted line responsibility. I had a responsibility to see that information got to them, to information was actually exchanged back forth.
The -- the group that I had
to see - see that and
responsibility for had broad -- broad
responsibility within the company beyond industrial hygiene within the production plants.
It finally developed into something called "product stewardship," which is the part of the
effort that had to deal with our relationship to
our customers and the general population. Q. All right. So what you -- you said a
"dotted line responsibility." You gave -- you were a resource person for information and
Page 43
Hoyl e-Harold-Robert-021891.txt
exchanged information with them; ;-s that correct?
6 A. And I -- and I had some responsibility
7 for knowing what they were doing and having some
8 input into the plans that were made.
9 Q. All right. But they -- they implemented
10 certain programs within the division?
11 A. On a day-to-day basis, I tried.
12 Q. Okay. So Roy DeGesero -- we'll get back 13 to this exhibit again, and that's Exhibit No. 5;
14 is that right?
15 Roy DeGesero actually undertook to do
16 this particular --
17 A.
He did all of the sampling.
18 Q.
Sampling?
19 A. 20 Q.
M-h'm. All right. You -- you are the person
21 signed here who checked this report, and your
22 signature is dated March 24, 1969?
23 A.
Yes.
24 Q.
Is that correct?
25 A.
Yes, ma'am.
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Q. What were you -- okay. What was the
purpose of this particular study? A. Well, it had the same purpose as all
industrial hygiene studies at Dow, to evaluate the exposure of people to be certain that they were within acceptable limits.
It had a further reason for being, because this is at a time when the five million particles per cubic foot threshold limit value was under question, and it was obvious to us
that, barring some added information, it was going to became two million particles per cubic foot.
And so there's a need to know, in considerable detail, where we are with respect to exposure, to see what effect on our operations the new standard was going to have.
Q. All right. And so what operations were actually monitored?
A. Well, in this case, it was all the things that pipe coverers were doing.
Q. And what was -- what was the result that were reported here in these dust studies?
A. Well, in broad terms, the -- I mean, in the conclusions, the time-weighted exposures that
74 1
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Hoyl e-Harold-Robert-021891.txt part icles as the numbe r, were not acceptable with
two million particles as the number.
Q. So the studies that were done would have
been acceptable under the threshold limit values
that 7 8 9
had been A. Q. A.
in place from nineteen -Yeah. This study -forty -showed that what we have
been
doing 11 12 13 14
-- I'm me.
sorry. Q.
A. Q.
Now, wait a minute. You're interrupting
I'm sorry. These particular studies reflected that
the work done that were monitored would have been
acceptable under the threshold limit values of
five million particles?
18 MS. ABRAMS: Obj ection. Leading.
19 Q.
(By Ms. Clark) Is that correct?
20 A.
That's true
21 Q. All right. And then you said that
they
were -- that there was -- that this was to check
to see which functions would have met the limits
of two million, when they were going to be decreased to two million; is that correct?
MS. ABRAMS: objection. Leading. A. The -- the results of this investigation
indicated that there would be a need for changes
in the way we were doing pipe covering if two
million particles were to become the standard.
In other words, we were above the two million
particles, but below the five million particles.
Q. All right. And what -- what changes,
then, were recommended to be made?
A. That there -- there are no -- there are
recommendations here that -- well
12 Q.
Well, actually --
13 A.
Let me -- let me back up.
14 Q.
Okay.
15 A.
The pipe coverers needed to be informed
of the difference between the interpretations of their exposure under five and two million particles.
Also, there were a number of ways of handling the -- the exposures, so that they would be reduced below the two million particles. And part of -- part -- one of the ways is personal protection, use of personal protective devices.
Another way would be soaking down insulation that was old and friable and as a way
of controlling dust to some extent. And what
Page 45
Hoyle-Harold-Robert-021891.txt really happened was that, in parallel with this
3 study, at about the same time, other people were
4 looking to see what other materials might work in
place of asbestos-containing insulation 6 And they found that, indeed, for almost
7 all the cases that we had, there were acceptable
8 substitutes. So the solution to the problem was
not to go forward with -- with a plan to handle
10 asbestos materials but, rather, to substitute 11 materials, I mean, in pipe covering, which had no
12 asbestos in it, which left us, then, with a need 13 only to take special precautions for removal of
14 already in-place materials.
15 Q. Okay. In looking back, if you will,
16 look back at this the study that was prepared
17 here. Mr. Hoyle, you reviewed the study at or 18 about the time it was done; is that correct? 19 A. Well, during the time it was being done,
20 I had contacts with Roy, day to day.
21 Q. All right. You reviewed this - 22 Then I reviewed the file and signed it
23 on 1969, March 24. 24 Q. Was the report that was done and signed
25 by'you on March 24th, 1969, made at or about the
77 1 2
time that the study was conducted?, A. Well, the study had been ongoing
3 probably for a few months. 4 Q. But this - 5 A. -- because these things don't get done 6 all in one day is what I'm trying to say. 7 But I don't have a recollection of 8 exactly the length of time that the study was on
going. 10 Q. All right. But what I'm asking you was 11 the report was -- was prepared as soon as the 12 information had been gathered and was available 13 to be reported on? 14 A. Yes, ma'am. 15 Q. All right. And you had personal 16 knowledge of the information as it was designed 17 and as -- as it was being collected?
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Hoyl e-Harold-Robert-021891.txt A. Yes. Q. And you have - - you had knowledge of the concl usions that were reached in this report? A. Yes. Q. And you agreed with these conclusions as set out? A. That's what my signature is meant to mean.
Q. Okay. And this report was kept records, in the appropriate places, in Chemical Company? 4 A. Yes, ma'am. 5 Q. All right. 6 MS. CLARK: I'd like to
in the the Dow
offer this
Exhibit No. 6 into evidence at this time -- I
mean, Exhibit No. 5, that is. MR. COVERT: For clarification,
please, in the Louisiana cases, Gary and those involved, we reserve objections to the times that they are introduced, this deposition will be introduced? Is that our understanding?
MS. CLARK: Well, I believe that if there's any objection that needed to be made as to predicate,, that those should be made now, since the witness is here, if any other questions needed to be asked to -- if you feel that there's
any lack of predicate. MR. COVERT: I may consider doing
that so - MS. CLAIIK: Okay. MS'. ABRAMS: On behalf of the
interests in California, I would object to the introduction of this document as evidence, and I
would reserve all of those objections for
purposes of the trial at the time that this
deposition is introduced into evidence.
THE COURT REPORTER: Ms. Abrams --
MS. ABRAMS: I'm sorry.
THE COURT REPORTER: Go ahead, start all over.
MS. ABRAMS: I would object to the introduction of this document as evidence and reserve our right to object to -- for purposes of introduction of this document at trial at the time -- until the time that this document is introduced in a California court and the objections can be duly made in front of the trial 5 judge.
I note for the record that this document was handed to me about two minutes ago. I've not
had an opportunity to review the document at all,
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Hoyl e-Harold-Robert-021891.txt 19 and at a minimum, I would want the opportunity to 20 review the document and make my objections at the 21 time that I have been able to review it and 22 question the witness on it. 23 MR. COVERT: And I would join in 24 the objection in the Louisiana cases, making my 25 objection, in general, as to these documents.
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MR. HAINKEL: John Hainkel for
Owens-Corning in the one Louisiana case that I'm here for, the same objection. As far as I'm
concerned, we're operating under the Louisiana
Code of Civil Procedure in that particular case. MS. CLARK: All right. MR. HOBSON : Let me interject, as
well, please, since everybody gets a chance to talk. The copies that I see, for instance, on Page it looks like ST006812, there appears to be handwritten notes that have been written in the margins that are partially or almost totally obliterated. Plus, there have been entries that look to be obliterated at the top that may have been handwritten. And until we can get a copy of this document without the handwritten portions obliterated, I'm not satisfied that I've got a copy of the document as it originally existed.
MR. STUART: What page are you referring to?
MS. you're referring exhibit
MR.
CLARK: I'm not sure what page to, Mr. Hobson. The -- the
HOBSON: The table. Here you
g.
MS. CLARK: Okay. The exhibit is
numbered as ST006806.
MR. HOBSON: Look at Page 1-2, the
last two digits being 1-2, the table. MS. CLARK: Page 1-2. MR. HOBSON: Can you see, right
under "Range," and "Time-Weighted Factor," and "Asbestos," the very tops of some handwritten notes that have been obliterated, and I want to know what those are.
The top of that same page looks like it's had writing on it. The top of the next page looks like it's had writing on it.
MS. CLARK: I don't know. The copy I have is the same -- it doesn't look like it's had any writing on it, but we can talk about that, if we want to --
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Hoyl e-Harold-Robert-021891.txt MR. HOBSON: well, I object - MS. CLARK: -- later. But I'll - I'll check, but that doesn't -- mine does not look like anything has been obliterated on it. The objections -- we do not agree that objections can be reserved regarding the foundation or predicate -- I mean, the State Rules that apply, will apply, obviously, but we
are not, by not responding to your objections,
agreeing that these can be reserved. I believe under, at least the Texas
Rules, that whatever lack of foundation or predicate objections have to be made at the time
of the presentation of the -- the predicate. So if we have any of those objections,
or authenticity-type objections, then I think, because the witness is here, they ought to be made at this time. You know, if you want to reurge your objection, that's fine, but we don't -- you know, we're not acquiescing in that
objection and we will apply -- comply with whatever Rules of Procedure would apply to the
deposition at the time. MR. HOBSON: Well, my objection is
to the authenticity of the document, and I object to a copy being produced, as opposed to the original, or at least we ought to be able to see the original and match -- match it to these copies before they're introduced.
MS. CLARK: All right. That - that objection is noted.
MS. ABRAMS: Can I voir dire the witness on this document? If not, I will reserve
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Hoyl e-Harold-Robert-021891.txt my voir dire, and I will, therefore, reserve my
objections.
Q. (By Ms. C lark) Mr. Hoyle, I'm going to
show you what's been marked as Exhibit No. 6.
And could you identify that exhibit?
MS. CLARK: This exhibit,
Mr. Covert, to try to clue you in to what this
exhi bit is, it' s a similar exhibit. It's another
Roy A. DeGeseroi report.
Q. (By Ms. Clark) And what is the date of
that 12 13 14
one? A. Q. A.
This was - - I signed it 10/24/69. Let me see yours a second. And his -- I guess I signed it the same
day he signed it. Q. okay.
MS. CLARK: And it's numbered beginning with an ST000647, and it's signed on 9 1 0/24/69 .
Q. (By Ms. Clark) There you go. Would you identify this exhibit, please?
A. This reports industrial hygiene investigations made at the Ludington plant in the Michigan Division.
Q. All right. C iild you identify, for the
record, who Roy A. DeGesero is, just briefly
please?
A. Yes. He was industrial hygienist at Dow
who reported to me.
Q. All right. And did you have any input
into the design of this study?
A. I would have assigned the job to Roy and
would have talked to him about what he was to do
when he got to Ludington. So, in that sense, I
had to do with the design. Q. And what was the purpose of this study? A. Well, it was to accomplish the same
thing at the Ludington plant that I described as Page 50
Hoyl e-Harold-Robert-021891.txt 14 the reason for having done the study in the 15 Midland plant. 16 Q. All right. Now, would you tell me what 17 the reason of doing the Ludington plant was, if 18 you had done the Midland plant? 19 A. Well, because it's a different -- a 20 different plant and different circumstances. 21 Q. What were the different circumstances? 22 A. Well, this gets me into a rather 23 lengthy -- lengthy description of the difference 24 between what happened in Midland and what 25 happened in Ludington. In other words, what they
85
I did over there in the way of manufacturing
materials -
3 Q. Well -
4 A. -- was not the same as what was done in
Midland. 6 Q. Okay. Let me stop you a second, because 7 it sounds like an air-conditioner vent just went a on, and I -- you may need to put your voice up a little bit. 10 A. Okay. II Q. I don't know that you need to go into a 12 lengthy description, but can you just summarize 13 the types ofdifferences between the two 14 operations? 15 I mean, if you can't, you can't. I 16 mean - 17 A. Well, it's -- it's pretty -- it's not - 18 as far as the pipe coverers doing pipe covering, 19 it's pipe covering is pipe covering. 20 However, as far as the part that's 21 indoors, versus the part that'soutdoors versus 22 the'size of the -- of the pipe being covered, 23 it's difficult for me because -- forinstance, 24 there was a -- a lime kiln there which didn't 25 even exist in Midland, but which I know involved
86
1 2 3 4 6 7
11 12 13 14 15
quite a little bit of insulating Q. All right. A. -- which would have been a different
operation than those that would have been covered by the Midland investigation.
Q. So -- so you were -- you were testing a different location and with different types of - 8 A. We were measuring - 9 Q. -- facilities. 10 A. We were measuring the health hazards
within environments that were different and avail -- they were more available in Midland.
Q. I'm sorry? A. I said we were measuring the degree of exposure in environments that were different.
Page 51
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16 Q. All right. Well, that's what I mean.
17 A. Yeah. 18 Q. That's really the -
19 A.
That's -- that was the reason -
20 Q. the point that I -
21 A. for going there. It was our
22 intention, purpose, and usually we managed it, to 23 have data concerning the different work
24 environments. 25 Q. What were the conclusions reached, as
87
1 far as exposure in the Ludington plant?
2 A. Well,, they were -- it turned out they
3 weren't too far different than what we found 4 in -- in Midland, in that the average was a
little below 5 -- 4.4 it says -- where asbestos
6 was being used.
7 And then we had something here, I don't 8 remember fiberglass showing in that Midland
study. Here did they did find 1.3 million 10 particles per cubic foot where it was fiberglass
11 rather than asbestos.
12 And for asbestos, it pointed out that
13 five million particles was acceptable.
14 And again we find that, with two million
15 particles, we're above over there, also.
16 And let's see what we said about -- oh,
17 on fiberglass, at that time, there wasn't
18 specific information available on fiberglass, and
19 so it was considered a nuisance dust, and the
20 number implying the nuisance dust was usually
21 fifteen million particles.
22 Q.
Fifteen million?
23 A. Fifteen.
24 Q. Okay.
25 A.
So they -- so we -- the data that we
88 1
acquired there would have said that the Page 52
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Hoyl e-Harold-Robert-021891.txt fiberglass was acceptable.
Q. All right. On Page 3 of this report, there is a reference at the bottom of the page to F. A. Patty, P-a-t-t-y, "Industrial Hygiene and Toxicology.
A. Yes. Q. Who was Patty, and why was he referenced in this particular paper, if you know?
A. Well, Frank Patty was one of the early industrial hygienists, and he had rather a -- a broad experience, including Public Health Service, I believe. At the time of his retirement, he was in charge of industrial hygiene for the General Motors Corporation.
He -- in this context, he was the editor -- "author" is hardly the right word -- of "Industrial Hyg iene and Toxicology." It finally became a three-volume compendium of "Industrial Hyg iene and Toxicology." And various chapters in those books were prepared by various people in the-field of industrial hygiene who he felt had the necessary skills and knowledge to adequately prepare such a chapter.
And then his function was putting the
thing together and editing it. Q. Was this a -- a volume that was used
generally by industrial hygienists? 4 A. It was pretty much the Bible. 5 Q. All right. And what do you mean by 6 that? 7 A. Well, it was the authority, ifyou wanted a single authority.
Q. But his, as it turned out., three-volume Page 53
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set was - A.
Hoyl e-Harold-Robert-021891.txt
Q. -- was the one single,authority, if you
had to pick one? A. If you were going to just one, I think
most industrial hygienists would have chosen
that. Q.
And why was it particularly referenced
here on this page? What -- what was the
reference?
Q. Oh, let's see.
Well, the formula that you see there
for'-- for calculating millions of particles per cubic -- what is to be found in Patty's Volume
4 No. 1.
Q. So that was a
was that a formula -
90 1 A Page 198. 2 Q. Okay. Was that a formula that was the
accepted formula to calculate the - A. Yes. That's the one that I attempted to
describe to you a few minutes ago. It's the formula that would describe what was done.
Q. All right. Sometimes you have to take more than one chance to describe a formula to 9 me. 10 A. Yeah. 11 Q. In the Exhibit No. 6, the
DeGesero
study, what group, again, was tested in that study or studies?
A. Well, the environments being investigated were pipe coverers.
Q. Okay. And, again, let me ask you a few questions about your knowledge of this particular
document. Did you review this document at or about
the time that the study was concluded? A. I reviewed it before I signed it. I
also probably reviewed it before it was in final print.
Q. Okay. Did you have any input into the design or the carrying out of the study?
A. Oh, yes. As his supervisor, I did. Q. Okay. Would this have -- this study, once it was reviewed and signed by you, would this have been maintained in the records at the Dow Chemical Company?
A. Yes. It would have been kept in the various places that I mentioned in previous testimony. The Central Research Index would have had a copy, and so would the various industrial hygiene and safety departments around Dow.
MS. CLARK: We would offer, at this
time, Exhibit No. 6 into evidence. MR. HAINKEL: I will again have the
same objections as to Exhibit No. 5, and that is,
that all rights are reserved until the time of trial in the cases in Louisiana.
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the same reserves
Hoyl e-Harold-Robert-021891.txt
MS. CLARK: I can't hear him.
MS. ABRAMS: The Plaintiff also has objections as previously stated and objections until the time of trial, and
adds the problems of authenticity. MS. CLARK: We make the same
response, that we would insist that objections
predicate be raised now, while the witness is here, who could supply information regarding
to
these documents. Q. (By Ms. Clark) When you say "pipe
coverer," you're talking about a pipe coverer, are they -- would they be the same as insulators, another term for these individual workers?
A. As a matter of fact, pipe coverers did more than cover pipe, but that was the usual name within Dow for people who put covering on pipe or put insulation on vessels.
Q. So another name for these individuals might be "insulators"?
A. I'm sure it could be. It was generally, that was not the way we described them in Dow, as far as I know.
Q. Okay. Would you look at Exhibit No. 6, Mr. Hoyle. And you might need -- you may need to take a minute and -- and just thumb through every page of the exhibit.
Do you see any changes made that you would recognize from the original report that you signed, from that to the copy that's before you?
MS. ABRAMS: objection. Lack of foundation.
Just for the record, the original apparently is not in the presence of the witness
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Hoyl e-Harold-Robert-021891.txt
at this
time.
A. Table -- Table I, the word "Average" has
been circled and the word "Range" written in.
And it truly is the range. That could be my
writing. I'm just not sure. It looks a little
like it.
Q. All right.
A. I should have initialed it, if it is my
writing.
10 Q.
So you don't know specifically -
11 A.
I can't be sure, but I --
12 Q.
whose writing that is?
13 A.
in looking at it, I -- I can see that
that correction needed to be made. MR. JONES: Sandra, while he's
look ing at that, can we get a clarification as whether Exhibit 5 is the Midland study?
MS. CLARK: Exhibit 5 is the Midland study. Exhibit 6 is the Ludington study.
MR. JONES: Okay. MS. CLARK: And I'm going to have him go back through No. 5, as well,, to see if there are any markings on it that he could identify.
to
2 (Whe reupon, there was a discussion held off 3 the record, after which the proceedings continued 4 as follows:) 5 6 A. There is one other place on the very 7 last page, Page 13, where an addition has been 8 made, and that addition is written in. it says -- into the distribution list. And it says 10 "C. G. Kramer, Corporate Medical, 2030 Building, 11 6/25/70.11 12 That says, to me, that he asked for a 13 copy and got one.
14 Q. Do you know whose handwriting that is? 15 A. No. I don't recognize that handwriting. 16 Q. But what that indicates to you is just
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25
Hoyl e-Harold-Robert-021891.txt an additional person got a copy of the report?
A. Yes. And that was common practice to write on the distribution list if somebody, in
addition, had asked for a copy. Q. All right. where is the actually marked
No.,5? Here it is. I'm going to hand you, also, No. 5 -
but before you look at No. 5, in Exhibit No. 6,
the only markings that you noted were on the
table, which had "Average" circled and the word
"Range" written above it. You can't identify specifically whose handwriting that is; is that
correct?
A. I'm not a handwriting expert. I think
I've made marks that look like that.
Q. Okay. And then you noted on the
distribution list there was an addition?
A. Yes.
Q. All right. Would you look, now, at Exhibit No. 5 and see if you recognize any
changes, additions, deletions. And this was
Midland study. MS. ABRAMS: Objection. Lack of
foundation. Calls for speculation. A. On Page 7, there is, up in the
the
right-hand corner, an indication that something
has been -- been there and had been whited out, perhaps. I believe that that probably was an
internal file number. There's a little spot on page -- on Page
8, also, which is in that same location. And in my opinion, that's probably the same thing.
Q. Were either of those notes located in
any part of the actual body of the report itself,
96
6 7 8 9 10
as far as 2 A No 3 Q. -- any substance of the report7 4 A. No, not if they are what I think they
were, and have reason to think they were.
MR. HOBSON: May I see a copy of the marked exhibit, as opposed to the one I'm
working off of? MS. CLARK: I'm sorry? The marked
exhibit? 11
THE WITNESS: The one I'm looking
12 at?
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Hoyl e-Harold-Robert-021891.txt 13 MS. CLARK: Yes. 14 I believe, at this time, we're going to
move on from these exhibits, and I'll be happy give you this, but I think the way we had
scheduled things that this was our -- our
breaking point for our lunch, and we'll break
to
now. And I'll give this to Plaintiff's counsel over the lunch break.
11:32
am. This
MR. HOBSON: Thank you. THE VIDEOGRAPHER: The time is
ends Tape Unit No. 1. Off the
record.
(Whe reupon, there was a luncheon recess, after which the proceedings continued on the stenographic record as follows:)
MS. CLARK: Would you mark these
while we're waiting.
(Whe reupon, the instruments referred to by counsel were marked for identification as Hoyle Exhibit Nos. 7, 8 and 9.)
1:10 P.M. 15
THE VIDEOGRAPHER: The time is This begins Tape Unit No. 2 on the
16 record.
17
18 DIRECT EXAMINATION (Continued)
19 QUESTIONS
BY MS. CLARK:
20 21 Q.
Mr. Hoyle, we're continuing your
deposition now, after we've had a lunch break.
As an industrial hygienist, you were
concerned with many different kinds of chemicals and substances; is that correct?
A. Yes, ma'am. Q. Did you compile datasheets on all of these, or most of these?
MS. ABRAMS: objection. Vague. A. We would have had datasheets on materials as soon as we identified them as being a part of the Dow environment or materials identified as a Dow product. Q. All right. So you had datasheets on things that could have been in the environment in addition to things that were used in Dow products; is that correct?
A. Oh, yes. Q. Okay. Do you have an estimate of how many datasheets were compiled while you were an
Page 58
Hoyl e-Harold-Robert-021891.txt 16 industrial hygienist there? 17 A. Well, I never counted them. I guess the 18 best way to answer your question is to say that I 19 kept a full set in my office in the notebooks, 20 and that they were kept on shelves. My office, I 21 think, was 14 feet across, and I was on the third 22 shelf when I retired, so I had something over 28 23 feet of shelf space covered with datasheets. 24 Q. All right. Were these datasheets 25 updated as time went on?
99 1
3 4
6 7 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q.
1 00
1
3
4
6
7
8
10
11
A. Whenever new information came along that required it, we issued a new datasheet, and the
policy was to ask people to remove the old datasheet and destroy it. That was so that we wouldn't mistakenly take precautions based on old
information. So it was an ongoing thing, and as fast
as a new one came along, it was -- the old one was destroyed.
Q. Did you try to keep the current
information in the current file? A. Yes. Q. All right. Did much of your testing as
an industrial hygienist relate to products that were manufactured by Dow?
A. Well, we were as interested -- we were more interested in the products because, at this point, we were interested in the general public and our customers, but we had great interest in a lot of other things that were either raw materials or by-products or end process materials, which were of interest to us in maintaining a healthful environment for the Dow employees. Okay. And asbestos that we've been
talking about for a while this morning was one of those products that was in -- not one of your products that were manufactured by Dow, but one of these other types of products that you might have been interested in?
A. Our whole interest in asbestos was related to its appearing in some of the insulating materials used, and also that was used in the chloralkali plants, not in the products in the plant, but in the equipment that was used to
make -12 Q.
In the --
Page 59
13 A. 14 Q. 15 A.
Hoyl e-Harold-Robert-021891.txt -- chloralkai. In the process that was used? Yes . The equipment that was used for
16 process equipment did involve asbestos as a part 17 of the equipment. 18 Q. All right. on these other things, and 19 right now I'm not talking about asbestos, but on 20 some of the other chemicals and substances that 21 you might have been interested in, were there 22 also TLV's established for these products? 23 A. Many of them had TLV's and many of them 24 did not. The TLV's were promulgated after 25 some -- after a material became of wide enough
101
1 interest so that the American Conference of
Governmental Industrial Hygienists would include
3 it on their list. Of course, they had to have
4 information upon which to base a number so it
also had to wait for the information to become
6 available.
7 Q. All right. And previously you've talked
8 about the American Congress of Governmental
Industrial Hygienists. Is that my -- am I saying
10 that wrong?
11 A. No. You're saying "Congress," and it's 12 tt OCorn*ference.tt
13 Q. I don't know why I keep saying that
14 wrong, but that's -- you've corrected me once,
15 but correct me again.
16 A. All right.
17 The American Conference of Governmental
18 Industrial Hygienists, we've referred to them a
19 couple of times in the past in the deposition.
20 Could you tell the jury who made up that
21 conference?
22
. A.
This was made up of industrial
23 hygienists and with people interested in the
24 field of industrial hygiene. What i,m saying is
25 that an industrial physician could have been a
102
1 member if -- if he were getting paid tax money. 2 Q. All right. 3 A. In other words, it had to be 4 Goirern,mental. And there was one exception, as I
said this morning, that some of the academics
Page 60
Hoyl e-Harold-Robert-021891.txt 6 were allowed to have membership who were not from 7 Government -- directly Government institutions, 8 state-employed. 9 And these were the people, the
10 industrial hygienists who developed and kept 11 maintained the list, I guess it could be called, 12 of threshold limit values?
13 MS. ABRAMS: objection. Leading. 14 A. The threshold limit value, the 15 terminology itself belonged to the American 16 Conference of Governmental Industrial
17 Hyg ienists. It was a project ongoing which they 18 carried out as a service to their own members and 19 to anyone doing industrial hygiene. 20 Q. (By Ms. Clark) All right. And you 21 monitored, in your various facilities at Dow, for
22 other substances that had threshold limit values, 23 in addition to asbestos. We talked about this 24 morning, but you did other monitoring 25 A. Yes, and we monitored --
3 4 5 6 7 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 04
1
3
4
5
6
1 03 1 Q. and other things?
2 A. We monitored for materials that didn't
yet have a published number.
Q. All right. A. These -- these, when they were Dow employees -- I mean, Dow materials, our basis
judgment was usually animal testing; that is,
for use
of an animal model to test the material for its toxic properties in the Dow toxicology lab.
Q. So if something didn't have a threshold
limit value, you might do some testing to try to establish your own threshold limit value?
A. We did have -- we did have a list of what we called "guides" --
Q. All right. A. -- which were used in the same way as
the TLV'S. Q. All right. Oh, was it important to stay
under the TLV's in the areas that you were discussing and monitoring in?
A. We used the TLV's as
making professional judgments
various work environments. Q. You've talked about
a guideline in concerning the
industrial hygiene
this morning, and I wanted to ask you about some
of the standards that were used in the field of industrial hygiene. And what I mean is what sort of controls were used by industrial hygienists to try to maintain certain exposure levels?
A. Well, there are a number of ways that you can modify a man's exposure, or a woman's
Page 61
Hoyl e-Harold-Robert-021891.txt 7 exposure on the job. The use of protect -
8 personal protective devices is one way of doing
9 it,
10 And another way is to use control at the
11 point of release, and ventilation falls in this
12 category. And the ideal is to contrive to handle
13 the materials so that they do not escape the
14 equipment so you don't have any exposure. 15 Q. All right. 16 A. Those are the three ways in which it can 17 be done. 18 Q. And you can adapt various, I guess, 19 techniques to whatever the product was? 20 A. Well, back to our -- our datasheets, the 21 data -- the datasheets related to these different 22 ways that I've just mentioned to you. And the 23 way that the datasheets were used was that the 24 line supervisor decided which category of 25 exposure the thing that he was doing or proposed
I 05
1 to do would fall. As soon as he knew that, he
could look and see what protective personal
3 program would be required.
4 If it were something that -- in the way
of personal protection that -- that was
6 unacceptable -- suppose it came out that you
7 needed to put them in a -- in a suit, like a
8 diver. Chances are he wouldn't want to do that.
Well, then he could move into another category -
10 engineering is planned accordingly -- and arrive
11 at a set of personal protective -- or a personal
12 protective program that was acceptable to him.
13 So he had -- that's the way they could make up
14 their mind on what they would do based on our
15 recommendations.
16 Q. All right. You testified earlier, I
17 believe, that the monitoring of the pipe coverers
18 that was done in 1969 in the DeGesero studies, Page 62
Hoyl e-Harold-Robert-021891.txt 19 indicated that their work was below the threshold 20 limit values for asbestos. 21 A. On a time-weighted basis., the exposures 22 were below five million particles. 23 Q. All right. I wanted to show you another 24 exhibit, and this is one that we've marked as 25 Exhibit No. 3, and this was the -- well, to -- so
1 06 1
3 4
6 7 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23
that the other attorneys here know what I'm
talking about, this one is entitled, "Evaluation of Chemical Exposures Received by R. R. Spencer of Coatings Technical Service, in the 433
Building."
And I'll hand this to you. identify that exhibit?
Can you
A. Yes. This does report the findings of a very special industrial hygiene investigation which was done because R. R. Spencer was having
health problems. And it's not infrequently that the Medical Department would ask for a careful
evaluation of a work environment as an aid to proper diagnosis. That's the general one in which this were used.
Q. All right. Can you tell us what chemicals or other substances were monitored in this particular study?
A. Well, there were -- the dust that he
encountered was measured with eleven different samples. This was dust-counting techniques that we've talked about before.
And in addition to that, dust
Page 63
Hoyl e-Harold-Robert-021891.txt 24 concentrations on a weight basis were determined
25 in three other samples. And the materials that
1 07
1 were consideredwere asbestos, quartz or silica,
cadmium, calcium and a resinwhich is simply
3 designated 2716, which is a research number
4 within Dow which describes the resin.
5 Q. C an you tell us where -- where this
6 monitoring was done and what procedure was bei-iig
7 undertaken, "procedure" meaning what was the
8 the particular job that this individual was
doing? 10 A. Well, he was - 11 Q. What - 12 A. He was using what's known a Banbury
13 mixer, which is a mill, or a stirring-up device,
14 if you will, to make various formulations and
15 compound them.
16 Q. Okay. What I'm really asking you about
17 is, is this -- we've talked a little bit earlier
18 about an exhibit that was discussing the floor
19 tile formulation. Is this an individual who was
20 working in this -- with this floor tile 21 formulation that you had mentioned earlier ?
22
-A.
I think it is in the same laboratory.
23 Q.
All right.
24 A.
But it isn't clear in the description
25 here -- it doesn't actually say it in the
I 08
I description of what he was doing, except in one
place, where, indeed, it says he was calendaring 3 vinyl asbestos tile formulations. 4 So that tells me that, indeed, the answer to your question is "yes.,' 6 Q. All right. And these were the very - 7 the various substances and chemicals you've read 8 over that were monitored for. What was the
conclusion of that report? 10 A. Well, the conclusion was that i f h is 11 "If Mr. Spencer's difficulty is the result of 12 chemica l exposure, the causative agent is 13 unknown ... In other words, it was not 14 identif ied by this study. 15 He further says that when they' re 16 working with chlorinated polyethylenes, we should 17 do some more testing. 18 In other words, that's the one thing
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Hoyl e-Harold-Robert-021891.txt
19 that wasn't done at the time these measurements
20 were made. If polyethylene -- if chlorinated 21 polyethylene was not being used as a resin, some
22 other resins were beirig used.
23 Q. All right.
24 A. And - 25 Q. So when it says that some other testing
I 09
1
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12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 10
1 2 3 4
7 8 9 10
14 15 16 17
should be done, it was to test for that
particu lar 3 A. 4 Q. 5 A. 6 Q.
--
The resin that -resin?
he hadn't seen yet, that's right. Was there a -- was there a number
actually determined on what the exposure to asbestos was in that 9 A. No.
10 Q. -- report?
11 A. The highest number that I see -- I
mentioned there were eleven samples that were taken for counting, and the numbers ranged
from .02 parts per -- million parts, that is, per cubic foot, to 3.2. And the average size was two
to three microns. And that about covers it.
Q. All right.
Would that -
MR. HOBSON: Excuse me. I don't
think that's right. While we're here, you might
want to get that number right again.
THE WITNESS: I couldn't hear you.
MR. HOBSON: I think the gentleman
has said .02 was the lowest, and I think
it's .2, 0.2.
THE WITNESS: No. I said 0.2. if
I didn't,
0.2, if I 3.2.
I'm sorry. MR. HOBSON: I beg your pardon. THE WITNESS: I should have said
didn't, because that's what it says,
to
Q. (By Ms. C lark) All right. So, just to
make sure there's -- there's no misunderstanding about that, the lower number would be 0.2
A. 0.2, and that describes the air in the office , not in the lab 11 Q. All right. Then the higher 12 3.2? 13 A. That's the highest number.
number was And that was
during the mixing with the Banbury mixer. Q. All right. And is this -- can you
relate this or correlate this to what the threshold limit value was at the time - 18 A. It was - 19 Q. -- for asbestos?
20 A. It would have been five million
Page 65
Hoyl e-Harold-Robert-021891.txt
21 particles per cubic foot.
22
. Q.
So would -- would this be below the
23 threshold limit value?
24 A. Yes, ma'am. 25 Q. All right. You mentioned the size of
1 the -- of the dust, or you said two to three
microns?
3 A. That's what he says here.
4 Q. Can you tell the jury what that means? What does -- is that a measurement or what?
6 A. Yeah. That's a fraction of a
7 centimeter, or a fraction of a millimeter. These 8 are lengths, like feet and inches in the -- this
is in the metric system; whereas, you would call
10 them feet and inches in the English system, the
11 one we're more used to.
12 Q. Okay. 13 A. But it's a distance measurement from
14 there to there.
15 Q. Okay. And was there -- was there 16 something significant about the -- the 17 measurement of the size of the fibers or the size
18 of the dust?
19 A. Well, these are not fiber readings. 20 These are particle size measurements, as I read
21 this report. And the significance is that it
22 would have put that dust in the respirable range.
23 Q. All right. Is there a -- a limit, I
24 guess, that's used in -- in the literature that 25 is a respirable range on the size of particles
11 1 2 3 4 5 6 7 8
10 11 12 13 14 15 16
2 or
A. Yes to size.
MS. ABRAMS: objection. Vague as
A. There -- there is such a range, and I
can't remember just exactly what it was.
Q. Okay. So this -- in this,particular
sampling, then the table that you talked about
discusses the various samples of asbestos usage,
or the dust created with asbestos usage?
A. These are dust measurements made in that
laboratory where the formulation would have
contained some asbestos.
Q. All right. And was this measuring total
dust measurements, or can you tell by looking at
th i s?
17 A.
These measurements were total dust
18 Q.
All r ight.
19 A.
There 's nothing he re to indicte
20 otherwise.
21 Q. I would --
22 MS. CLARK: Do you have another 23 copy of that? 24 Q. (By Ms. Clark) Because I'm looking over
25 your
Page 66
Hoyl e-Harold-Robert-021891.txt 1 13 1 A Oh. 2 Q. -- your shoulder. 3 That's okay. I want you to look at that
4 one. I'm going to get another copy because I can't see from here to there.
6 A. Oh. 7 Q. That's one of those problems with 8 advancing age, I'm afraid. 9 All right. I wanted to ask you a 10 question about - 11 MS. CLARK: Did you hand me the 12 right one? Okay. 13 Q. -- about a statement in this report 14 because you -- this is a report that's dated 15 1/30/58; is that correct? 16 A. M-h'm. 17 Q. In Paragraph 2, under "Conclusions," and 18 it states in there that he worked -- Mr. Spencer 19 worked with vinyl asbestos tile formulations, and 20 in the course of that work, was occasionally 21 exposed to somewhat excessive concentrations of 22 airborne asbestos." And then it goes on and 23 gives specifics. 24 I was -- do you have a comment about 25 what is meant by Conclusion No. 2?
I 14
I A. The sampling that was being reported
here was in 1958. The dates mentioned here
3 are 153 to 154. That's four years before.
4 This indicates to me that in
conversation with Bob Spencer, thatPeterson
had
6 had described to him the circumstances that had
7 existed sometime before.
8 And so this is subjective observations,
and there's nothing in this report that would
10 justify such a statement as the one we're reading
II
here, because the numbersreported were
allbelow
12 five million particles.
13 So you see here a subjective comment
14 concerning his previous history.
15 Q. I want to ask you ano ther -- another
16 couple of questions about this particular
17 report. This is signed by Mr . Peterson; is that
18 correct? 19 A. 20 Q. 21 A.
That's right. And who is Mr . Peterson? Oh,, he is a -- a chemical
engineer who
22 3oined my group in industrial hygiene. And it 23 was during the period of time that he was in our 24 group that he did this work. 25 Now, the only other characterization or
1 15
Page 67
Hoyl e-Harold-Robert-021891.txt 1 identification of Peterson that I can make is
that he left us, returned to school at the 3 University of Michigan, obtained a Ph.D. in 4 industrial hygiene, and is presently a consultant
living in Wisconsin.
6 Q. Okay. And you reviewed this report, and 7 you reviewed the data that is connected with it?
8 A. I read -- I read the report, and after
I'd read it, I signed it.
10 Q. All right. And you -- this report is
11 your recollection that this report was made at or
12 about the time that this study was done, or
13 this -- I guess it's more of a report was done 14 regarding Mr. Spencer?
15 A. Yes. My recollection and judgment is
16 that samples were taken shortly before the report
17 was written -- written.
18 Q. All right. And the report was written 19 shortly after this work was done? 20 A. Yeah, almost July, as soon as the work
21 was done.
22 Q. All right.
23 A. And you see -- I said before that this 24 was done at the request of the Medical Department
25 as,-- to assist them in making a diagnosis of
1 16
1 2 3 4
6 7 8
Spencer's problem
Q. All right. A. So I'm sure it would have been done as
soon as possible in order to take care of that
requirement.
Q. All right. And -- and you reviewed this
material and were aware of the sampl ing that was
being done. You have personal knowl edge, I
guess --
10 A.
Right. Sure.
11 Q.
-- of this report?
12 A.
Sure. Sure.
13 Q.
All right. There is another bit of
14 sampling that was done, I believe in -- I will 15 show you what's been marked as Exhibit 4. And
Page 68
Hoyl e-Harold-Robert-021891.txt 16 this is a letter that's to R. C. Middleton, of 17 the Safety Department, Ludington Division. It's 18 October 26, 1964. 19 MS. CLARK: Do you all have a copy 20 of that? 21 MR. HOBSON: 'Which number?
22 MS. CLARK: It's No. 4.
23 MR. HOBSON: Right.
24 MS. CLARK: And it's ST No. 6762.
25 MR. HOBSON: You passed that out
1 17
1 earl ier.
2 MS. CLARK: Yeah. Right. 3 Q. (By Ms. Clark) I want to hand you what 4 has be en marked as Hoyl e Exhibit No. 4 and ask
you if you recognize that exhibit?
6 A. Yes. This is a letter which I wrote to
7 Bob Mi ddleton to report to him the results of
8 some industrial hygiene activity at the Ludington
plant. 10 Q. And what were the -- just generally, 11 what were some of the things that were looked at
12 at the Ludington plant? 13 A. Well, one of the things we looked at was
14 the plant air. Now, that's not the ambient air. 15 That's in the plant, there was air from a
16 compressor which was piped to various locations
17 for use for whatever purpose in the process. And 18 we were looking to see whether -- what the
19 quality of that plant air might be.
20 And what it says is that we found that
21 it was not contaminated with significant amounts
22 of either carbon monoxide or mercury. And we
23 further made an agree -- an arrangement with a
24 man at the Ludington plant to sample that air for
25 particles and told him how to do it.
1 18 1 2 3 4 5 6 7 8
10 11 12 13 14 15 16 17 18 19
Q. All right. And - A. And then we went on and told him how to interpret his results, how many -- what weight it was cut out by and what wouldn't be acceptable.
And we talked with a couple of people
over there about radiation and radiation manuals. I don't know if it's very apparent here, but they had some instrumentation which depended on sealed sources of radiation.
Q. All right. And I guess to get on a little bit farther in the letter, there is a mention, on Page 2, of an inquiry about
asbestos. And what was -- what was the study done, and what was your opinion?
A. A question was raised about asbestosis having to do with sawing Transite. Transite is a building material which is used on a good many ways, commonly as an outside wall for buildings. And it comes in corrugated sheets, and it's made
Page 69
Hoyl e-Harold-Robert-021891.txt 20 of mostly cement with enough asbestos in it to 21 hold it together, I think is a good way to 22 describe it. 23 And so what we said was, that although 24 the dust from such an operation will probably 25 contain respirable particles of asbestos, it's
I 19
1 ly unlikely that enough exposure would exist
in the use of Transite to represent a real
3 hazard. That was a professional judgment based
4 on no data.
5 Q. Okay. But this was what your -- your 6 judgment was at the time, in 1964?
7 A. Yeah. I was influenced partly by the 8 fact that any asbestos that was airborne wouldn't
be asbestos fibers, but would be of little chunks
10 of concrete with little particles of asbestos in
II the little chunk of concrete, the little piece of
12 dust. And probably what you would have the most
13 of would be the exposed end of the fiber, as
14 opposed to the fiber itself. -
15 Q. And so, in Your opinion, at that time,
16 because of those factors - 17 A. We Just didn't feel that there was any
18 need to Pursue the matter further.
19 Q. Okay.
20 MS. ABRAMS: I'm sorry. I didn't
21 hear the
witness at the end.
22 THE WITNESS: I said that I
23 MS. CLARK: Wait a minute. Wait a Page 70
Hoyl e-Harold-Robert-021891.txt 24 minute.
25 THE WITNESS: Oh, excuse me.
6 7 8
10
14
18 19 20 21 22 23 24 25
12 1
1
3
4
6
7 8 9 10 11 12 13 14 15
1 20 1 MS. CLARK: Why don't you read it
2 back?
3 4 (Whe reupon, the requested testimony was
read back by the court reporter.)
MS. ABRAMS: Thank you. Q. (By Ms. C lark) Now, going back to
DeGesero in
earlier 11 A.
12 Q. 13 No.
these exhibits that we talked about
Yes.
-- youhad -5 and 6, that I
I'm sorry. think you
That's Exhibit you've looked -
looked
15
16 17
at, A. Q.
and
these are not
These are not it.
-- not it. Okay. Did you expect that
the pipe coverers
that were tested in these particular studies would have had more exposure than other workers?
MR. HOBSON: Objection. No
foundation.
.,A.
The -- our -- our -
objections
MS. ABRAMS: i,ll Join in that
1 A.
our expectation professional judgment
would have been that --Lfie people actually handling
the insulation would have had the higher
exposures.
Q. All right. Let me ask you some -- a
little bit of background questions to that.
Throughout your career, had you had the
occasion to observe workers in the field? A. Many times. That was my job. Q. All right. And how would you observe
them? I mean, what was your job related to actual work going on in the plant?
A. Well, we -- we studied the workers and their activities, so that we would be able to assign lengths of time to the various sampling that we did.
Page 71
Hoyle-Harold-Robert-021891.txt
16 In other'words, if we sampled while they
17 were taking a sample, then we'd find out how many 18 samples they took per day and how long each 19 sample took because, ultimately, we were going to 20 come up with a time-weighted average exposure to 21 Chemical A, B or C, or whatever, for that man on
22 that job. 23 In other words, our judgments weren't
24 based on the -- on what was the material. Our
25 judgments were based on what was the material,
1 22 1
what was the level of exposure, how frequently
did it happen and for how long
3 Q. Okay. And to make these judgments, 4 you -- how did you set up this observation, I
guess, to make this -6 A. Well,, I just -- first, we had a safety
7 meeting and we explained to the people in that
8 plant, first, who we were and why we were there
and what we were going to do. And the next thing
10 we did was to find out what materials were
11 present. This was what we used to call the
12 "inventory of materials."
13 And then, for each job, we -- we took
14 from that inventory of materials, the materials
15 that would be involved in that job, whatever it
16 might be. And then we simply went out, walked
17 around the plant with the man as he did his job,
18 and kept track of what he did, how long it took
19 him to do it and how often he did it. 20 We depended on what we observed, we
21 depended upon what he told us, and we depended
22 upon what the supervisor told us about each job,
23 and then we reconciled any differences.
24 As soon as we had that done, why then we
25 developed our sampling procedure so that we would
Page 72
I 23
Hoyl e-Harold-Robert-021891.txt
1 get numbers that we could use to arrive at a
time-weighted average. 3 Q. And did you have an occasion, over the
4 years, to observe pipe coverers? 5 A. I, personally, not in great detail, but
6 I saw pipe coverers at work many times, because 7 they -- it's not uncommon to see a pipe
8 coverering crew in a -- in a chemical production
plant. It's an ongoing job, in other words.
10 Q. All right. And did Roy DeGesero conduct II his studies using that technique when he did his
12 pipe coverers study?
13 A.
He did it -
14 MR. HOBSON: Obj ection
15 A. He did it
16 MR. HOBSON: Excuse me, sir.
17 THE WITNESS: Yes, sir.
18 MR. HOBSON: I need to object.
19 This man is not in a position to address that.
20 Lack of foundation.
21 MS. ABRAMS: We join.
22
-Q.
(By Ms. Clark) Goahead.
23 A. Well, philosophically and, actually, as
24 far as studying the jobs are concerned, he did it 25 in just the way I have described to you, taking
I 24
1 into account the different kinds of pipe covering
that were being used, because for pipe coverers,
3 the -- their exposure was related to their
4 craft.
5 In other words, they came on the job,
6 bought some covering with them, whatever kind
7 they needed, and put it on wherever it was
8 needed.
9 Q. All right. And did -- were you in a
10 position to observe the methodology that Roy
II DeGesero used in his study? Page 73
Hoyl e-Harold-Robert-021891.txt 12 A. I can't remember that I actually went on 13 site and observed him at this particular sampling 14 in this particular project, but that I did a 15 number of times with him, and others of our more 16 experienced people also had done the same thing. 17 Our procedure for breaking in a new man 18 was to have him work with a person who was 19 already there on a project like this. But he had 20 progressed by this time, in his experience with 21 us so that we didn't have a second industrial 22 hygienist with him. 23 Q. All right. You had certain procedures 24 in your department that you would follow to 25 determine the type of work the man did so -- for
1 25
1
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 26
1
your 2 3 4
study purposes? A.
out. Q.
Yes, we had forms that he had to fill All right. So -- and you were in a
position to know what that procedure was? A. M-hlm. Q. In fact, did you establish that
procedure yourself?
A. Yes. Q. And so you knew that that was -- that
was the procedure and that forms had to be filled
out to - A. M-hlm.
Q. -- to show that that procedure had been followed?
A. M-hlm.
Q. Is that correct? You'll need to say flyes" or "no," for the record, please.
A. Yes. Q. Okay. Did you -- what was your opinion about whether -- about the type of -- I guess the extent of exposure that a pipe coverer would have, as opposed to other workers who were not pipe coverers?
MS. ABRAMS: Object to the form of
the question as opinion. 2 A. To asbestos, you mean?
3 Q. (By Ms. C lark) Yes.
Page 74
Hoyl e-Harold-Robert-021891.txt 4 A. The exposures of the pipe coverers would
have been greater than to others, in my
6 professional opinion. Now, this is based on I 7 don't know how many samples taken in people's
breathing zones and at distances from their
breathing zone. 10 You have a pretty good feeling for how 11 much difference there is between right in a man's
12 breathing zone and -- and a few feet away. And 13 based on that kind of experience, we didn't feel
14 any need to sample others in the area. 15 Q. Because of your experience in -- in
16 doing the testing at various distances from the
17 breathing zone --
18 A.
That's right.
19 Q.
-- of a pipe coverer?
20 A.
In the past.
21 MS. ABRAMS: Excuse me
22 Objection. Leading. 23 And, Mr. Hoyle, if you would be so kind
24 as to wait until the questioner finishes the
25 question, in case some if us would like to
1 27
1 interpose objections, it would be very helpful.
2 THE WITNESS: I'll try.
3 MS. ABRAMS: Thank you.
4 THE WITNESS: I've been trying.
5 MS. ABRAMS: It's hard.
6 THE WITNESS:I'm used to
7
conversation
rather than depositions. I'm sorry
8 about that. 9 Q. (By Ms. Clark) About -- oh, I'm going to
10 show you what has been marked now as Exhibit No.
11 7 by the court reporter. And this is what is 12 titled "Exposure to Fine Dust Encountered by 13 Workers Cutting Various Type s of Pipe Covering
14 Material," and it's dated July 21st, 1965. And
15 that's Exhibit No. 7, and it's the ST number,
16 four zeros and 568.
17 I'm going to hand that to you. And do 18 you -- can you identify that exhibit, please? 19 A. This is a report of work done at the Dow
20 Corning Corporation, at their request. And it
21 reports the results of measurements made while
22 workers were handling pipe covering materials in
23 different ways.
24 Q. All right. Can you -- excuse me. Can
25 you tell us the reason for conducting this
1 28 1
particular study?
2 A. The reason, as I recall, was that the - 3 some of the members of the Dow Corning pipe
4 covering group, crew, what have you, had read in
Page 75
6 7 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 29 1
3 4 5 6 7 8 9 10 11
15
Hoyle-Harold-Robert-021891.txt their -- either in the newspapers, or somewhere
else,, about asbestos,, that they'd read something
that had caused them to be concerned. And so it was regular procedure in Dow,
and it turns out in Dow Corning, that we would do what we could to answer people's questions. And these -- this work was done to answer questions asked by the people in the covering crew, if I
remember right. I'm not sure I do remember
right.
Q. Okay. And I'll have to ask you, as we
go on, when that -- there's this little air
conditioner or compressor or motor or something
that comes on, and we'll have to ask you to keep
your voice up a little bit when that happens so
we can hear you.
A. I'll try.
-Q.
This was signed by a gentleman named E.
J. Schneider or "Sha-ny-der." Can you identify
Mr. Schenider?
A. Yes. I was the Dow Chemical Company's
first full-time industrial hygienist, and Ed Schneider was the second full-time industrial hygienist. He joined me about six months after I started in the Department.
Q. All right. And I noticed that there are, on Page 2 and on Page 3, at the bottom of
the page, there are some footnotes.
A. M-hlm.
Q. And the footnotes are to -- the first
book is "Industrial Toxicology" by L. T.
Fairhall; is 12 A.
13 Q.
14 A.
that correct? That's right.
What sort of a reference book
Well, it was one of the early
is that? and pretty
good reference books available to us, and it was Page 76
Hoyl e-Harold-Robert-021891.txt
16 written by Dr. Fairhall.
17 Q. All right. And then I noticed that, the 18 second page, there's a reference again to Frank
19 A. Patty. 20 A. That's the same book we talked about 21 this morning. 22 Q. And can you characterize what sort of 23 references these are, as far as quality or -- or
24 usefulness?
25 1 A. Well, they're good. They're --
1 30
1 they're
as far as they're being authoritarian
is concerned, they're as good as was available at
3 the time -
4 Q. All right.
5 A. -- in my opinion.
6 Q. This -- can you tell us what the
7 conclusions were in this study conducted by 8 Mr. Schenider and, I believe, checked by you? 9 A. Well, he found that if you were using a 10 table saw -- this is the first time we've 11 mentioned table saws', but this is a power saw - 12 that you could stir up dust in excess of 13 acceptable levels. 14 That's one -- the first of his 15 conclusions. And the total dust count, or the 16 number of particles per million cubic feet of air 17 would, therefore, exceed acceptable levels under 18 these circumstances. 19 Q. Let me stop you there and ask you a 20 question. 21 A. Yeah. 22 Q. We've talked about limits, dust limits, 23 and so forth. And when you say "total dust," 24 what -- what do you mean by "total dust"? 25 A. Well, I mean, if you take a dust sample
131
1 and simply look at it under a microscope, it's
difficult, if not impossible, to tell the
3 difference between different kinds of dust.
4 In other words,, they're just little
spots of light that are like a light that you can
6 see. And so you call it "total dust."
7 Now, what you can do is to take samples
8 in such a way as to get larger amounts which can
be analyzed chemically, spectrographically, or
10 what have you, and then you can start to consider
11 the kinds of dust, kinds of materials that are
12 represented by that dust that you're looking at. Page 77
13
14
15 16 17 18 19 20 21 22 23 24 25
1 32
1
3
4
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22
24 25
Hoyl e-Harold-Robert-021891.txt
Q. Was there -- was this particular concept
about total dust, as opposed to asbestos, was
this taken into account here in this report? A. Let me see. I think it was. Yeah, they did characterize the dust,
because this report is written after there started to be some understanding of the fact that asbestos was fibrous and that different length fibers with different diameters would be handled differently within ttae lung or respiratory system.
And the third conclusion here was that the amount of asbestos fibers of significant
length found within the dust exceeds 25 percent
of the fiber content. And what that means to me
is that 25 percent of the fibers that they could
find were within the area of concern, as far as
fibers themselves goes.
Q. All right. A. The rest of the fibers,
really,
are too
long or too short to be of concern.
Q. A.
All right. Then he goes on to say that "The
possibility that Dow Corning workers are
being
exposed to excessive amounts of asbestos fibers within the important fiber lengths" -- if I'd
have read -- I should have read a little
further. And then he says, 1120 to 50 microns," which is the length of concern -- "is unlikely,
however, it is advisable and prudent to have
workers wear respiratory protection while cutting
pipe covering material. This is especially true when using a table saw.,,
Because it -- it puts just much more
material in a short period of time with a table
3 saw. Q. Now, in the back of this exhibit
someplace, I'm going to show you there's an "ST"
1 33 1
7 8
number on it, and it's a "ST" with four zeros and
a 578, 3 4 5 6
and then there's a 579 and 580.
A. All right. Q. Do you see that? Could you just
-
A. These would be the pictures, here. Q. All right. Can you just identify what
that is?
A. I can tell you what it is, yes. That's a photomicrograph taken of one of the samples.
Page 78
Hoyl e-Harold-Robert-021891.txt
10
Q. And what
can you just say -- what is
11 it?
12
A. The long
the long narrow ones are
13 fibrous in appearance and are -- might be
14 asbestos , based on the fact that there was
15 asbestos in the sample. 16 Now, there isn't enough -- there 17 is -- there is no information here that let's - 18 there's no scale information, so I can't tell you 19 how long those were that you're looking at, but
20 that's what you're looking at. And all these 21 other little pieces would have been counted as
22 dust, but are not fibrous. 23 Q. Do you know where these particular 24 studies were done? Where, like in what location 25 in the -- in the facility?
1 34
1 A. Well, this -- this wlioie report, I
think, reports work that was -- was not done 3 during the normal covering of materials in the
4 Dow Corning plant. This reports measurements
made while people did specific operations. 6 Q. This was in -- in the first -- I notice
7 in the first paragraph, on the first page, it 8 says that this was a question raised by shop
personnel.
10 A. Right. 11 Q. Do you know whether this was done in the 12 shop or outdoors, or can you tell?
13 A. It would have been done in the shop. 14 Q. So this particular study would have been 15 indoors?
16 A. It would have been in the shop.
17 MS. ABRAMS: objection. Leading.
18 And it calls for speculation. It lacks
19 foundation. -20 Q. (By Ms. Clark) Do you have any
21 independent
22 'A. it 23 Q. Let me -- let me ask you a different
24 question.
25 A. Okay.
1 35 I
3 4 6 7 8 10 II 12 13 14 15
Q. Would you have any independent memory of
the location, other than what's reported in the report itself?
A. Yeaft, I have memory of the request coming in and my calling Ed Schneider in and asking him if he would go and take care of it.
Q. No. I'm A. And I have memory of saying to him that they were thinking -- what their plan was, was to set up specific operations with pipe covering, rather than to try to make -- the reason I remember this is, is that this would have been of relatively short duration, because they set up all the different operations.
The alternative would have been to go
Page 79
Hoyl e-Harold-Robert-021891.txt
16 out and do a comprehensive industrial hygiene 17 survey of Dow Corning's pipe covering crew, which
18 we did not do.
19 Q. All right. It was about in -- in about 20 1970, I think that you have testified earlier
21 that the threshold limit values for asbestos was
22 lowered.
23 MS. ABRAMS: Objection. Leading.
24 A. 25 Q.
Well, it went - (By Ms. Clark) I think you testified to
1 36
1
2
3
4
6 7 8
10 11 12 13 14 15
that, but correct me if I'm wrong.
A. It went from five to two sometime close
to 1970, possibly 169. And my memory isn't quite
good enough to say what year, but itwas
in a --
within a three-year -- three-year period. I
think I'm right. Like 169, 170 or 171.
Q. All right. Do you know why - -
A. Now, that would be available, if anyone
really wanted to know, because -- because the
threshold limit values committee, their records
would show that.
Q. All right . Do you know why the
threshold limit value was lowered?
MS. ABRAMS: Objection. Lacks
foundation. 16 A.
Should I -- should I answer?
17 Q. (By Ms. Clark) Go ahead. 18 A. There had been, over a period of time in
19 the 160's, new information showing up and being 20 discussed in the -- in the toxicology area and in 21 the medical area concerning effects other than 22 asbestosis which migfit come from working with 23 asbestos. And the decision to lower the level 24 from five to two was related to that scientific 25 ferment that was goin(i ()n.
1 37
I As the information was presented and
further discussed and so on, there was a felt 3 need to lower -- to lower the levels of exposure, 4 as I understood it, not because of any concern for asbestosis, but for these other concerns. 6 Q. All right. I want to ask you a question 7 before we take a little -- we'll take our little 8 afternoon break in just a minute, but I wanted to ask you a question about scientific theories, I 10 guess, in general. Now I'm going back to when II you were a scientist and a teacher, and all of 12 that. 13 When you have a scientific hypothesis, 14 is that hypothesis generally accepted whenever 15 it's hypothesized?
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16 MS. ABRAMS: Objection.
17 Q. (By Ms. Clark) Or can you explain -
18 maybe a better way: Can you explain how, I
19 guess, a theory or a hypothesis gets into
20 practical --
21 A. Well --
22 Q.
-- literature?
23 MS. ABRAMS: Excuse me.
24 A. 25
Well, generally -MS. ABRAMS: Excuse me.
1 38
1 MS. CLARK: Wait a second. 2 MS. ABRAMS: Objection. It lacks 3 foundation. It calls for speculation and it 4 calls for an expert opinion. 5 Q. (By Ms. Clar k) Go ahead. You can 6 answer. 7 A. Well, what usually happens is that 8 experiences -- and these can be from all the way
from case studies to carefully done animal 10 experiments -- are reported by the investigator, 11 whoever he may be. And they're usually reported 12 in form of papers at scientific meetings and - 13 and/or publications in scientific journals. And 14 before they get -- get great credence, someone 15 usually will reproduce the findings. 16 Once the findings have been reproduced, 17 this tends to give them more weight, so to speak, 18 as far as we're going to jump now to setting 19 threshold limit values. 20 In other words, the better the data, the 21 more likely they are to end up changing the -22 the-guidelines. 23 MS. CLARK: All right. I think 24 this is a good point to take about a ten-minute 25 break, and we'll resume at 2:15.
1 39
1 THE VIDEOGRAPHER: The time is 2:03 p.m.
3 Off the record. 4 5 (Whe reupon, after a brief recess, the 6 video deposition continued as follows:)
7 8 THE VIDEOGRAPHER: The time is 2:18 9 p.m. 10 On the record. 11 Q. (By Ms. C lark) Mr. Hoyle, before the
12 break, we were talking about, I guess, the fact 13 that the threshold limit values had been lowered, 14 or were going to be lowered, and that we had 15 talked about scientific theories and evolution 16 and so forth. 17 Did you become aware, at some point, 18 that asbestos exposure could be associated with 19 other diseases, other than asbestosis? 20 A. Yes. 21 Q. And what -- about when did you become
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22 23 24 25
I 40
1
Hoyl e-Harold-Robert-021891.txt aware of that,, and what other conditions were you aware?
A. Well, the other -- there were two things that -- that we started to hear about. First was
mesothelioma, which is a -- a rather -- a rather
unusual tumor, as I understand it, that has been
3 associated with asbestos and was reported. 4 The other thing was -- that I heard
about was lung cancer as being a matter of
6 concern. Nowi I couldn't put a -- there's no 7 specific date that I can associate with the 8 appearance of these concerns. What I remember is
the developing concern among the health 10 professionals over a period of time which II ultimately ended in a decision to change the 12 threshold limit values. 13 Q. What -- where were the first case 14 reports of mesothelioma from that you read about 15 or heard about? 16 A. Oh, I think it came from -- it seems to 17 me they were reported from South Africa, but I'm 18 not -- I'm not really sure whether it was South 19 Africa or England, at this moment. But it was 20 outside the U. S., as I recall. 21 Q. Did -- when did you become aware that 22 lung cancer could be associated with cigarette 23 smoking? 24 A. Not until about the time I retired was 25 it more or less totally accepted, as I remember.
14 1 1
Sometime in 2 Q. 3 A. 4 Q.
the
early 170's, Was it -- do I Go ahead.
in other you have
words. an approximate
Page 82
--
Hoyl e-Harold-Robert-021891.txt 5 A. Let me back up a minute. 6 As far as lung cancer associated with
7 cigarettes, period, of course, that came with the
8 Surgeon Generalls requirement, the date of which
I don't remember, when they started to put labels
10 on cigarettes, and all that kind of stuff.
11 What I,do remember is the -- the report
12 was published prior to that which resulted in his
13 coming out with the requirement.
14 Q. And -
15 A. And I answered you in terms of cigarette
16 smok ing as it relates to asbestos exposure , which
17 isn' t what you asked, I think.
18 Q.
No, it wasn't, but I will -- I will ask
19 that.
20 So you -- as I recall what you said,
21 then , you - - about the time of the Surgeon 22 Gen' eralls Report, or prior to that, you l earned 23 about lung cancer and cigarette smoking. And 24 then did you learn about some connection between 25 asbestos and smoking and lung cancer?
14 2 1 A. Yeah. There came a time, in the '60's, when this had been reported. There had been - 3 there was -- there was some other investigation, 4 after its first being reported, which confirmed
it.
Q. All right. Did you have an estimated
7 time when you learned of the mesothelioma?
a
A.
It's fuzzy in my mind,
but it was
9 A. Fuzziness becomes less and less fuzzy as
10 you get into the early 160's and when you go
11 toward the middle 160's. But if -- if I were to
12 ask myself, was it in the 150's, late 150's, or
13 was it in the 160's, my memory is not good enough
14 to tell me, right now.
15
Q.
Okay.
It was after -
16 A. I might have an opinion, but I wouldn't
17 have a memory of it.
18
Q. Okay.You had said it was after you
had
19 heard a report either from -- reported cases from
20 South Africa orfrom England. Is that --
21 MS. ABRAMS: Obj ection.
22 Q.
(By Ms. Clar k) -- your memory?
23 MS. ABRAMS: Objection. Leading.
24 A.
Those were -- that's what I recalled for
25
143 1 Q. I was going to show you what's been
marked as Exhibit No. 8, and this appears to 3 be -- I'll let you identify what it is, if you 4 ca 5 MS. CLARK: And this, ladies and
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Hoyl e-Harold-Robert-021891.txt
gentlemen in the background, this is, I believe, three letters that are attached together that are dated October 7th, 1968. 9 A. And the last one is October 31st. 10 Q. Okay. 11 MS. ABRAMS: Can you give us a
minute to examine this document?
we just go could take literally,
2:24 p.m.
MS. CLARK: All right. Why don't off the record just a second. We a -- we'll not take a break, but just break from the video.
THE VIDEOGRAPHER: The time is
Off the record.
(Whe reupon, after a brief recess, the video deposition continued as follows:) 23 MS. CLARK: Are we back on?
24 THE VIDEOGRAPHER: The time is 25 2 :26 p.m.
1 44 1 2 3 4
6 7 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
145
1
3
4
5
6
On the record. Q. (By Ms. C lark) Befo re we -- we move on to this exhibit that I just handed you, Exhibit No. 8, I had asked you the question about
mesothelioma, and you had indicated that you had heard of some cases, and that you were not -- not real sure about when that was, but do you know what type of exposures or type of workers were reported in those cases?
MS. ABRAMS: Objection. Compound. A. The -- in those cases, now that I - there was a study, but I think it was not the mesothelioma cases that were reported in that study, although they were reported there, too, perhaps, which involved shipyard use of asbestos lighting in the engine rooms of ships. And that's the one that I remember something about, as far as what kind of exposures did they have. I'm a little blank on the rest of it.
Q. All right. And it was your understanding -- can you compare the type of exposure that you understood to be in that report to the type of exposures that you were monitoring at Dow?
A. As -- as described, the exposures that
happened in the engine rooms of ships during
World War II were gross compared with those which
we encountered by pipefitters in Dow Chemical
Company plant -- plants that I know about.
Q. All right. Thank you. this Exhibit No. 8.
Let's move on to Page 84
Hoyl e-Harold-Robert-021891.txt
7 Can you identify this correspondence,
8 Mr. Hoyle?
9 A. Yes. There are three letters here, one
10 sent to me by Bob Middleton,, Safety Director at
11 Ludington, Michigan; one written by me to a man
12 in the Safety Department at Midland, asking him
13 to answer part of the questions; and another one
14 written by me to Bob to answer the questions that
15 I had referred to the Safety Department.
16 Q. All right. What was the question asked,
17 and what was the -- basically, what was the
18 response given?
19 A. Well, he asked what are -- what are they
20 doing in the Midland -- what are the pipe
21 coverers in Midland doing. And that's the part 22 that I -- that I referred to the Midland Safety 23 Department. And then I replied to him concerning 24 hazards due to the handling of materials 25 containing asbestos.
146
1 And what I told him, to paraphrase it,
was that there's a discrete disease associated 3 with asbestos which is called "asbestosis." I 4 told him that it was quite similar to silicosis,
which is caused by crystalline quartz, and -6 Q. Go ahead and read that, if you want to. 7 A. "In more or less recent past the subject 8 of average or good asbestos has been further
complicated by reports in the literature of. 10 malignant growths which were associated with the 11 presence of asbestos bodies. The whole subject 12 is presently under study by the U. S. Public 13 Health Service." 14 Then I told him that I feel at this 15 point "...our best bet is to control the asbestos 16 dust exposures according to the Threshold Limit 17 Values suggested by the American Conference of 18 Governmental Industrial Hygienists. This 19 Threshold Limit Value is five million particles 20 per cubic foot of air. We have done some dust 21 sampling during a variety of operations carried 22 out-by pipe coverers. I'll include a summary of 23 this work for your information. You will see 24 that there are some jobs where the numbers of 25 particles in the air are above five million
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3 4
6 7 8
10 11 12 13 14 15 16 17 18
22
Hoyl e-Harold-Robert-021891.txt
particles per cubic foot mentioned here. Jobs such as this would be done using industrial respirator which is approved by -@he U. S. Bureau of Mines for protection against toxic dusts,
including silica. "Another approach to the dust hazard is
to contrive better control of the dust so that the measurements will show less than five million particles and there will, therefore, be no need
for respiratory protection. Generally, this is the best -- is best accomplished by the use of exhaust ventilation at the point where the dust
is being generated.,, Q. And does this -- Mr. Hoyle, would that
represent, fairly, your opinion as of October
31st, 1968?
A. I would -- it's -- it's signed by me.
My answer to you is a --
19 MS. ABRAMS:
20 A.
-- yes.
21 MS. ABRAMS:
Obj ection. It calls for opinion
testimony. 23 24 25 it.
Q. A.
(By Ms. C lark) All right. Because I composed the letter and signed
I 48 1
3 4 5 6 7 8
10 II 12 13 14 15
Q. All right. Mr. Hoyle, were you aware at any time that there was any monitoring or following done of pipe coverers by the medical
Department at Dow? A. There was a regular program of chest
X-rays that was carried on, and also a -- a vital
capacity testing with a spirometer in the Medical Department. And the pipe coverers were included in that program for a period of time. And the findings were all negative, and the decision was made by the Medical Department to discontinue them on the program after a period of time.
Q. Why did they decide to discontinue them
on a program? A. Just because
they were
finding entirely Page 86
Hoyl e-Harold-Robert-021891.txt 16 normal findings, and even though X-rays of the 17 chest aren't going to give rise to -- to serious 18 overexposure to radiation, a good practice is 19 that you don't expose people to radiation
20 unnecessarily. 21 Q. During your years at Dow, were you ever 22 awake of any case of an asbestos-related disease
23 reported in any Dow employee? 24 A. No. 25 Q. I wanted to just point out one thing.
1 49
1 In -- in Hoyi-e Exhibit No. 5, there is a comment
on the first page that sayst "The present
3 Threshold Limit Value (TLV) for asbestos of 5
4 million particles will remain in forceuntil
1971."
6 It -- you -- do you have any information
7 any different about when that threshold limit
8 value might have been changed, as far as the
actual date?
10 A. I don't really know when it happened,
11 but there was a warning given out by the TLV
12 Committee that they expected to change it in
13 1971, and that' s the basis for that statement.
14 Q. Okay.
15 A. Whether they -- whether they did it at
16 different date, for some reason, I don't know.
17 Q. All right. So you don't have any
18 indep endent --
19 A.
No. That's the --
20 Q.
knowledge --
21 A.
best information I have.
22
-Q.
Okay. And when -- whenever the
23 24 25
committee chang ed it is when they changed it? A. That's when they changed it, that's
right.
1 50
1 Q - Okay.
2 A. It was -- it was the policy of that
3 committee -4 Q, Mr. Hoyle -5 A. If I may?
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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
15 1
1
3 4 5
6
7
8
10
11
12
13
14
15
16
17
18
19
20
21
22
Hoyl e-Harold-Robert-021891.txt 6 Q. All right. Go ahead. 7 A. It was policy of that committee to give
advanced warning of change so that people could make their comments, if they wanted to.
Q. Okay. Do you have an opinion, Mr. Hoyle, based on your experience, your training and your knowledge as an industrial hygienist, whether a pipe coverer who worked in a plant setting, applying insulation, some of which contained asbestos, had exposure levels within the five million particles TLV level?
MS. ABRAMS: Objection. It calls for opinion testimony.
Are you done? Were you finished with your question?
MS. CLARK: Yes. MS. ABRAMS: It calls for opinion testimony. It lacks foundation and calls for speculation, and it's vague and ambiguous. Q. (By Ms. Clark) Do you have --
A. Based on our own data, as reported in the DeGesero reports, the answer is that we did not have exposures on a time-weighted basis above five million particles per cubic foot.
Q. Okay. And could you briefly tell the
jury what a time-weighted average means when you
refer to that term?
A. Yes. The exposures in the work
environment are not uniform. They tend to go up
and down, depending on particular tasks that are
being done by the people at work. And the
time-weighted average concept says that for the
time where you might have a peak above the
number, you can take credit for the time when you
have a peak or a depression below the number.
In other words, you're allowed to
average it out. That's what time-weighted means.
Q. All right. And -- and that was -- that
was a process that was used in -- was used in
reasonable and responsible industrial hygiene
practice?
MS. ABRAMS: Objection. It calls
Page 88
Hoyl e-Harold-Robert-021891.txt
23 for an expert opinion.
24 A. That was the way that industrial hygiene
25
was
the way these ntinibers were used by
1 52
1 industrial hygienists.
2 Q. Okay.
3 A. These numbers being threshold limit
4 values. 5 Q. And do you have an opinion, Mr. Hoyle, 6 based on your knowledge and experience and
7 training as an industrial hygienist, whether a 8 pipefitter -- and I'm talking about a pipefitter
as opposed to a pipe coverer, now -- a pipefitter
10 or similar craftsman working in a plant setting,
11 had exposures to asbestos under the threshold 12 limit values of five million particles?
13 MS. ABRAMS: Objection. It's vague
14 and ambiguous. It lacks foundation. It calls
15 for speculation, and it calls for an expert
16 opinion beyond the expertise of this witness. 17 Q. (By Ms. Clark) Do you have such an 18 opinion?
19 A. My -- my -- my expert opinion as a
20 certified industrial hygienist is that the
21 expo sures of people, other than the insulators
22 themselves, would not have exceeded the
23 guidelines in effect.
24 Q. And what do you base -- on what do you 25 base that opinion?
1 53 1 2 3 4
6 7 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
MS. ABRAMS: The same objection.
A. I base this on a publication of an epidemiology study done at the Dow Chemical
Company which compared the state of the health
of
Dow pipe coverers to Dow pipefitters to control
groups. Pipefitters were the same as the
controls. The pipe coverers showed an increased
incidence of lung cancer for those who were
smokers, as well as pipe coverers. It showed
that the pipe coverers who didn't smoke were the
same as other smokers. And there was a factor of
eight or ten, or something like that, greater
likelihood of lung cancer for people who were
smokers and pipe coverers than there would have
been if they had just been smokers.
Q. All right. study done?
Approximately when was this
A. From the early 170's.
Q. All right. And at this time, it's - well, it's almost twenty until 3:00, or so.
Mr. -Hoyle, I appreciate your -- your attention this afternoon.
MS. CLARK: And I pass the
witness.
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1
3 4
6 7 8
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
1 55
1
3
4
Hoyl e-Harold-Robert-021891.txt
Why don't we go off the record for just
a second and talk about the scheduling just a little bit?
2:39 p.m.
THE VIDEOGRAPHER: The time is
Off the record.
(Whe reupon, there was a discussion held off
the record, after which the proceedings continued on the stenographic record as follows:)
MS. CLARK: Gerry, if we might, everybody here, or at least we are in agreement that questions that are dealing with cancer
testimony would be used only in cases where that issue can be -- that is, tried with the rest of the issues in the case.
There are some jurisdictions, apparently, where both cases are segmented out. Their asbestosis cases are tried separately from cancer cases, and that there wouldn't be any disagreement with using testimony only relevant
to certain cases in those jurisdictions where that is appropriate.
MS. ABRAMS: What are you -- are
you requesting that -- I'm not sure what your
statement is. MR. HOOD: Well, we don't want to
have to have to object everytime the word "cancer" is mentioned if it's irrelevant in a
6 7 8
10 11 12 13 14 15 16 17 18 19
given case. MR. BEZET: Well, aren't you
operating under a stipulation that all objections are reserved except as to the form of the question and responsiveness of the answer?
Relevancy is preserved. That covers it, doesn't it?
(Whe reupon, there was a discussion held off
the record, after which the proceedings continued as follows:)
MR. HOOD: My name is Bobby Hood, and it's my understanding that Plaintiff counsel
Page 90
Hoyl e-Harold-Robert-021891.txt 20 and the defense counsel understand that the 21 questioning of this witness, whether a reference 22 is m-ade to cancer or malignancy or tumors is only 23 to be used when this deposition is shown to a 24 jury in a case where such references are relevant 25 and admissible in that particular case.
1 56 1
Does anyone disagree with that?
MR. BEZET: I am.
MS. ABRAMS: Yes, I do, too. MR. COVERT: I do , too.
MR. HOOD: Now, if you do disagree,
6 does that mean that you want us, everytime you 7 mention the word "cancer," to interrupt you and
8 object because 9 MR. COVERT: No. Just make a
10 general objection in the Louisiana cases. That's 11 all I'm concerned with. 12 MS. HOOD: Will this objection,
13 then, be sufficient to run throughout any 14 questions by any Plaintiff counsel, so it doesn't 15 have to be repeated each time the word "cancer" 16 is mentioned?
17 MR. COVERT: Speaking for myself,
18 yes. 19 MR. HOOD: How about any other
20 Plaintiffs, counsel? 21 MS. ABRAMS: That's fine with me. 22 MR. HAINKEL: I'm going to join in 23 the objection for the Louisiana cases, too, with 24 reference to cancer. 25 THE VIDEOCRAPHER: The time is
1 57
2:43 p.m. On the record.
2 3 EXAMINATION
4 QUESTIONS BY MR. COVERT:
5 6 Q. Mr. Hoyle, my name is Gerry Covert, and
7 I'm here primarily inquiring about the Dow 8 Plaquemine facility, and I think you mentioned
that once, in passing. 10 Were you, sir, in industrial hygiene 11 when the Dow Plaquemine plant was built? 12 A. Yes. 13 Q. And do you recall the time stage on 14 that, Mr. Hoyle? 15 A. Not exactly, because I answered you 16 quite positively because I was in industrial 17 hygiene and had some contact with the Texas 18 division during the planning of the Louisiana
Page 91
Hoyl e-Harold-Robert-021891.txt 19 Division, but I just can't remember what year the 20 Louisiana Division took off. 21 Q. Well, as I told someone, I did 22 abstracting in law school when they were building
23 that, so it was in the 1950's. Does that sound 24 about right? 25 A. All right, I'll agree.
15 1 3 4 5 6 7 8 10 11 12 13 14 15 16
8
Q. All right. I was interested -- you said
you had something to do with the planning of the
Plaquemine facility. What did you mean by that,
Mr. Hoyle?
A. Well, I had -- there was an opportunity
for industrial hygiene input through the
engineering stages of various Dow plants. And it
was in that context that I made the comment. And
my function would have been to furnish
information to the engineers, so that they could
plan a facilitythat wouldmake
itpossible to
operate the plant in a workenvironment that was
healthful.
Q . I see. Did you actually consult with
the engineers relative to your knowledge of
asbestosis?
17 A.
No.
18 Q.
You did not?
19 A.
I did not.
20 Q.
All right. Is there any reason? Were
21 you not called upon to - 22 -A. Asbestos was -- I was not called upon, 23 and I think the reason was that asbestos related 24 to specific trades, and the -- I would have been 25 most likely to have been consulted or asked for
159
1 information concerning the control of chemicals
from process and within process, because the
3 tradesmen -- we -- would have been handled as
4 special cases by Maintenance Eng ineering involved
in any Dow use of asbestos at Plaquemine.
6 THE VIDEOGRAPHER: Excuse me,
7 Mr. Hoyle. Your microphone is slipping off. 8 THE WITNESS: Oh, dear 9 THE VIDEOGRAPHER: The time is 10 2 :47 p.m. 11 Off the record. 12 THE VIDEOGRAPHER: The time is
13 2:47 p.m. 14 On the record. 15 Q. (By Mr. Covert) Mr. Hoyle, let me back 16 up just a little bit. 17 When you went to work for Dow in 1941 i 18 1942, were you aware that asbestos insulation
Page 92
Hoyl e-Harold-Robert-021891.txt 19 used in the Dow facility? 20 A. I became aware of it very soon after, 21 but not in the context of industrial hygiene -22 Q. Okay. 23 A. -- because my job, at that time, had 24 absolutely nothing to do with industrial hygiene. 25 Q. Fine. About when did you become aware
1 60
1 of the usage of asbestos-containing insulation at
Dow?
A. In 1941, because I was a pipe shop 4 estimator at that time, and I estimated pipe
covering work.
6 Q. All right. And at that time, the pipe
7 covering did contain asbestos for the hot
8 insu lation ? 9 A. The hottest insulation used asbestos. 10 Q. Was there any difference in the type hot
11 insu lation used at Midland, as opposed to
12 Plaquemine , if you know?
13 A.
I don't think so --
14 Q.
So to --
15 A. 16 Q.
-- but I don't know for sure. To your knowledge, when the Dow plant
17 was built, the hot insulation did contain
18 asbestos, as far as you know? 19 A. Yes, as far as I know, on hot
20 applications, asbestos was used at Dow 21 installations until the late '60's or
22 early '70's.
23 Q. And do I understand you from the 24 previous question that I asked, that although you
25 had had knowledge since 1948, approximately --
161 1 A M-hlm.
2 Q. -- that asbestos could cause asbestosis,
3 you were not called upon or were not asked about 4 the usage of asbestos in the construction of the
Plaquemine plant? 6 A. I furnished information to the Safety 7 Department, who did have an interest in the 8 insulators, the pipe coverers, from the safety
point of view. And we resourced people to them 10 in -- in determining safe operation for pipe 11 coverers. 12 Q. I'm speaking not only of pipe coverers 13 in the plant, but during the initial construction 14 of the Plaquemine plant, too, Mr. Hoyle. 15 MS. CLARK: Let me object. It's 16 not really an objection, but I believe that there 17 are a number of different parts of the plant. 18 It's a -- you know, the facility has several 19 different buildings, and they were built at
Page 93
Hoyl e-Harold-Robert-021891.txt 20 different times. So that might be unclear as far 21 as when these were all applied. 22 Q. (By Mr. Covert) If -- if my question
23 confuses you, Mr. Hoyle, be sure to stop me, but 24 I'm concerning myself - 25 A. Tell me -- wotild you repeat it, please.
1 62
1 I'm sorry. I lost my train of thought. 2 Q. Me, too. Concerning ourself - 3 MR. COVERT: Well, you'd better 4 read the question back to me. 5 6 (Whe reupon, the requested testimony was 7 read back by the court reporter.)
9 Q. (By Mr . Covert) Were you, likewise, 10 concerned with their safety, as an industrial 11 hygienist? 12 A. The -- early on, and I think that's 13 early on, maybe the late end of early on, the 14 relationship with contractors in Dow facilities 15 was that they were independent operators. They 16 had their own safety programs, and the people who 17 applied different trades were expected to know 18 how to take care of themselves, as far as their 19 own trade is concerned. 20 And on that basis, early on, I can't be 21 sure that any information that I had, as an 22 industrial hygienist, whether it got to them or 23 not, I'm not sure. If it did, it got through the 24 Safety Department, who at some point in time, in 25 Midland, I can't speak for Plaquemine, but at
1 63
I some time
point in time in Midland, in
the 160's, the company started to be more 3 aggressive concerning the safety behavior of 4 contractors on site. 5 But their contracting was mostly done by 6 Austin Company, and this is a big company. And 7 I'm not sure that we would have been welcome if 8 we had tried to tell them to fit pipe and put on covering. 10 Q. Okay. II A. And I think theyactually went out and 12 bought the covering and brought it on site, 13 probably, because I do know that Austin Company 14 had their own Purchasing Department. 15 Q. But the -- the insulation that they 16 would supply to Plaquemine would have been 17 according to Dow specifications? 18 A. Been according to Dowspecs,that's 19 right. 20 Q. Now, there are two things that I'm not 21 sure of and I wish you would help me clarify. 22 You answered many questions about plant 23 environment, as to the pipe coverers in the plant 24 environment at Dow. 25 A. M-hlm.
Page 94
Hoyl e-Harold-Robert-021891.txt
1 64 1 Q. What did you mean by that, Mr. Hoyle? 2 A. Well, the plant environment is the -- is
3 when a pipe coverer would be applying his trade 4 in an operating plant, as opposed to applying his
trade in a -- under new construction. 6 Under new construction, then, by my 7 definition, that's not a plant environment. 8 Q. What -- what would "new construction,,
imply to you, as an industrial hygienist?
10 A. Oh, a brand-new plant.
11 Q. Would in your opinion, the exposures to 12 asbestos dust be greater under the circumstances
13 of new construction? 14 A. I don't - 15 MS. ABRAMS: objection. It calls
16 for an expert opinion. 17 A. -- know why it would be, but it would be
18 related to the -- to applying the trade of pipe
19 coverer. And whether you put pipe covering on a 20 pipe in a plant where there's no chemical
21 operation, or whether you're putting pipe
22 cove-ring on a piece of pipe in a plant that's 23 operating, I don't see why it would make any
24 difference, as far as the -- the pipe coverer is 25 concerned, as far as his exposure to the contents
1 65
1 of the covering that he's using. 2 Q. Would any time -- would time make any 3 difference in the utilization or exposure to that
4 asbestos insulation
5 A. I don't quite understand your question.
6 Q. Well, you said in the plant environment
7 someone would be using it part-time, and you
8 didn't see any difference in new construction, in
which I assume there would be a great deal of
10 applying insulation with the hot pipes - 11 A. To the extent that they might have made
12 an assembly-line operation on a new construction,
13 there could have been a difference. I'm not
14 aware that they did that, but I can -- if you 15 were to organize yourself so that one man did
16 nothing but cut pieces of pipe covering, that
17 would not be what I was talking about.
18 Q. 19 A.
I see. Do I -- do I make myself plain?
20 Q.
I think you do. I think you do.
21 A. 22 Q.
Okay. The other thing, I'm having a hard
23 quantifying five million particles per cubic 24 foot. Can you see the material -- the dust in 25 this amount of vapor or mist?
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A.
You can -- you cannot see the respirable Page 95
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dust, because
that are used in such a way
Hoyl e-Harold-Robert-021891.txt
it's too small. The techniques
for sampling actually are developed that you -- that what you get in
your sample is respirable dust. Q. So someone working with insulation which
contained asbestos could conceivably be breathing these sort of particles without knowing it; is
that correct? A. It's highly unlikely, because usually
the respirable dust would be associated with the
bigger particles, which you can see.
Q. Okay. How about someone -- well, strike that question.
Did there ever come a time, Mr. Hoyle,
where Dow started looking for alternative
products to take the place of asbestos in the plants?
19 A. Yes, sir. 20 Q. And about when did that come about?
21 A. That was in the late 160'sl and it was
associated with the time that I was -- that I
testified to when the threshold limit value was at five, and it was proposed to reduce it to two.
Q. And --
A. And at that point, we first had to find
out whether the new number -- what effect that
would have on our operations. And that was the basis for the DeGesero study that we talked about
at length this -Q. What do you mean, what
have on your operation?
A. Well, if we were -- if
effect it we needed
would to know
what the exposures were, and with fair accuracy, and up until that point, we had been satisfied that we were below five million particles, but we hadn't done an in-depth study to know exactly where we were. We knew we were below, but we didn't know just where below.
So the question then is, if we -- if we
have a new number to work with, will that affect our safe practices. And so that's why we did the in-depth study, which told us where we were, and we found we were, indeed, above two million particles, and that prompted us to go ahead and look for alternative materials, which you just askb'd about.
Q. Well, what alternative materials did you look at, Mr. Hoyle?
A. I wasn't involved in the looking at
alternative materials. That was done by the Ma intenance Eng ineering Group. And so they searched the marketplace and finally found materials that could be used for high temperature, most high temperature installations
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6 that had no asbestos.
7 But I wasn't involved in that enough to
8 even know what the -- I just knew there was no
asbestos and had little interest in it beyond 10 that point, because it was no longer an
11 industrial hyg iene problem. 12 Q. I see. Were you with Dow when what's 13 known as "Asbestos Abatement Programs " began,
14 Mr. Hoyle?
15 A.
That's about the time I left.
16 Q.
I see.
17 A.
And the kind of thing -- may I ask
18 question now? 19 Q. Sure.
20 MS. CLARK: Mr. Hoyle, you really 21 need to answer his questions, because he's not
22 under oath, and if he answers -23 THE WITNESS: Yeah, okay. I'm
24 curious as to what his terminology meant. Maybe 25 I should say, "Would you restate your question?"
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1
MS. CLARK:
That's right.
2
MR. COVERT:
He's trying to help
3 me.
4 Okay. Could you read it back to him?
5 THE WITNESS: Okay.
6 7 (Whe reupon, the requested testimony was
8 read back by the court reporter.) 9 10 Q. (By Mr . Covert) And I think you answered 11 that that's about when you were leaving. 12 A. I think so. 13 Q. Okay. And -- and what, if you know, 14 Mr. Hoyle, was the purpose of replacing this 15 asbestos? 16 A. I beg your pardon? 17 Q. What was the purpose of this asbestos 18 abatement program, if you know?
19 MS. CLARK: Again, answer if you 20 know. 21 MR. HOBSON: Well, "if you know,"
22 means if you know. 23 THE COURT REPORTER: Who said that?
24 MR. HOBSON: He said that.
25 THE COURT REPORTER: Okay. Page 97
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1 70
1 MR. HOBSON: Okay.
2 A. I wasn't involved in detail in 3 describing the so-called abatement program. 4 Q. (By Mr . Covert) Well, let me ask -vou
this, Mr. Hoyle: Did a time ever come, in your
6 employment with Dow as an industrial hygienist, 7 when you felt that the use of asbestos was too 8 dangerous to the individuals involved or exposed?
9 A. No. 10 Q . It never did?
11 A. No. The -- when you say "too dangerous
12 to me, I have to answer you that way, because any 13 material can be handled without its being too
14 dangerous, with the proper precautions. 15 If you'd have -- if your question had
16 gone beyond that point, I might have answered it
17 differently.
18 Q. Well, let's go back not that far.
19 If you could, when -- whether two
20 parts -- two million parts per cubic foot became 21 too dangerous for the utilization of the new
22 employees -
23 A. No,, that didn't make it too dangerous. 24 That simply required that you take different
25 precautions.
171 1
Q. And those precautions were "stay below
that." What else?
3 A. Not necessarily to stay below that, as
4 far as measurements are concerned, but you would
have been required more in the way of personal
6 protection as a -- as a program, with that
7 number, than you would have with five.
8 Q. Would you, as an industrial hygienist at
the present time, or at the time you left Dow,
10 Mr. Hoyle, recommended the use of insulation
11 containing asbestos?
12 A. If there were -- I -- I cou ld have
13 recommended its use if it were the -- the
14 material of choice, and then I could have
15 recommended precautions that would make it safe.
16 Q. And, again, if you could tell me those Page 98
Hoyl e-Harold-Robert-021891.txt 17 precautions. 18 A. They would have been use of personal 19 protective devices, either that or the use of 20 local ventilation duringparticularoperations,
21 or soaking the material. I thinkI'm describing 22 abatement to you. 23 Q. All right. And one more thing. You've 24 got to put up with me. we spoke a great deal 25 about the the floor tile at Dow, and I
1 72
1 unders tand 2 A. I d idn't get your word. 3 Q. The floor tile, the test -4 A. Oh, the floor tile, yeah. Okay. 5 Q. And I think you -- did I -- did I
6 understand you correctly, sir, that Dow sold the
7 materials which went into making up this floor 8 tile? 9 A. I'm not sure whether our Coatings
10 Technical Service group were successful or not.
11 I can tell you that I know that they were 12 experimenting with various formulations, which
13 hopefully would have developed a market for Dow 14 resins in the floor tile business. 15 Q. Mr. Hoyle, where would I go to try to
16 find out if Dow did ever sell the resins which 17 contained asbestos to other parties?
18 A. Dow never sold asbestos -- any resins
19 containing asbestos. If the asbestos ever got 20 into a floor tile formulation with a Dow resin,
21 it was done by the floor tile company. We - 22 there was no attempt made to develop a product
23 containing asbestos.
24 See, they were trying to break into a 25 into a business that used a different resin, and
17 3 so And the 3 4
the formulation would need to be different to accommodate only reason the asbestos was there is that that was the way floor tile was made. 5 Q. okay. 6 A. Do you see what I'm saying? 7 Q. Yes, sir. I think I understand. 8 A. okay. 9 Q. Mr. Hoyle, some of my clients have
the
new
resin.
10 spoken of turnaround operations at Dow. Are you 11 familiar with the term?
12 A. Oh, I know what a turnaround is. This 13 is when you shut down for maintenance. 14 Q. Okay. And would you say, sir, that
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15 that's different than the factory environment
16 that we previously discussed? 17 MR. HAINKEL: I object to the form
18 of the question. 19 A. It's different in that the whole plant
20 is shut down. Nothing happens there except
21 maintenance during the turnaround.
22 It's not too different than maintenance 23 done in an operating plant, so far as the 24 tradesmen are concerned, as I can see, as far as
25 any exposures related to their trade. But it
1 74
1 would be different in terms of the opportunity
they might have for exposure to a chemical in
3 process.
4 Our -- generally, maintenance work,
before the maintenance people are asked to do it,
6 the equipment is freed of any chemicals. If you
7 have a turnaround, that becomes simpler, because
8 you just simply remove all the chemicals from the
9 site.
10 Q. Let's -- let's confine it, if we could,
11 to the insulation --
12 A. Okay.
13 Q. -- relating to turnarounds. Would that
14 make any difference, in your opinion?
15 A. Well, I don't -- I don't think, un less
16 we were to get back to some kind of mass
17 production techniques , that would,be associated
18 with it, and then I'm unaware that it was done,
19 because I --
20 Q.
Assuming -
21 A.
-- I'm simply unaware.
22 -Q. Right. Assuming, Mr. Hoyle, that my
23 clients would say, that during turnaround 24 operations at Dow, the removal of hot insulation 25 resulted in work conditions where it was kind of
1 75
1 like snow falling on them, and this assume --
presumably contained
3 A. over how l ong a period of time would
4 this have happene d? 5 Q. Well, say for several weeks. 6 A. I would - I would be suspicious of 7 their observations. 8 Q. All right. Well, for several days,
let's put it into that time frame.
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Hoyl e-Harold-Robert-021891.txt A. Well, if you had said
MR. HAINKEL: I object to the form. Was that a question, Gerry, or ,
MR. COVERT: I confined it converted it to several days from several weeks,
to see where we're going. MR. HAINKEL: I object to the form
of the question. Q. (By Mr. C overt) If you can, answer that,
if you would, please. MR. BEZET: Well, what was the
question?
-A. I can answer it this way, and this is based on my casual observations over the years.
It might be possible, that for a very short period of time, there might be a case where
a fairly large piece of insulation would just
come apart, you know. And that, I wouldn't be
surprised at. I don't think it would last for
very long. It would settle to the ground and
they'd sweep it up and take it away. Now, that's
what I'm envisioning.
Now, the idea that it was snowing
asbestos, I haven't been -- I've been around
turnarounds, and I've never seen it snowing
asbestos. Q. (By Mr . Covert) Okay. Would that, to
you, as an industrial hygienist, mean exposure
greater than the five parts per million per cubic
4 foot? A. There would be -- it would be difficult
for me to say "yes" or "no," because what you're
seeing are big pieces falling down, and the
amount of respirable dust would relate to how
friable that material was at the time.
Q. And the respirable dust, Mr. Hoyle, does
it disintegrate, or does it remain on site after
it's cut? 23 A.
The respirable dust?
24 Q. Yes, sir. 25 A. It -- respirable dust is pretty small,
1 77 1
and it floats for a long time in the air. Page 101
And
Hoyl e-Harold-Robert-021891.txt the wind comes along and blows it away and -- and 3 disperses it. So it wouldn't be around the site 4 for any length of time, I don't think. 5 Q. So it could, in this -- is it your 6 opinion that this wind, et cetera, could stir up 7 a respirable dust causing further exposure to 8 people who work -9 MR. HAINKEL: I object to the form 10 of the question. I don't think that's his 11 testimony. 12 A. The -- I think your inference was that 13 they would be exposed to high concentrations. 14 And the sampling that I've done in my life would 15 tell me that that the answer would be known or 16 probably known, because when the wind blows in an 17 outdoor operation, the dilution factor is 18 tremendous. 19 Q. In your studies, Mr. Hoyle, what is the 20 exposure -- is the exposure required to contract 21 mesothelioma? 22 A. I haven't the -- I haven't the least 23 idea. I don't think any one of us knows. 24 Q. So you don't know the exposure to cause 25 mesothelioma?
I 78
I
3 4
6 7 8
10 II 12
A. The -- now, let me qualify by saying that I've been spending my time doing other things involving the literature for the past years, but as I know it, at the time that I stopped having regular contact with the literature, there was no quantitative relationship between levels of exposure and
14
mesothelioma. There was even a question as to whether mesothelioma had anything to do with
asbestos most of the time that I was an
industrial hygienist. Q. That was the time that you left Dow,
Page 102
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13 that was the consensus; is that your testimony?
14 A. At that time the consensus may have been 15 changing a little bit, but there was question as 16 to -- early on, there was question as to whether 17 or not those reported cases were caused by
18 asbestos. I am unaware of any studies that
19 related mesothelioma to levels of exposure. 20 That's just not to say that there were none, but
21 to say that I'm unaware of any. 22 Q. I'm reviewing my notes, and I just want
23 to clarify one more point. 24 Did I understand you correctly that you
25 stated, in the 160's., that new information from
I 79 1
3 4
6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24
toxicology revealed diseases from working with asbestos -- asbestos, including mesothelioma, came to light?
MR. HAINKEL: Object to the form of the question. A. I think that I recognized the fact that
in the literature and in the health sciences area, this question was being raised. Q. Did you accept it, sir, as the rules that you wish to promulgate at Dow?
A. We -- because asbestos was a very small
part of our industrial hygiene concern, very small, we couldn't justify doing any toxicological investigation of a material which was made by someone else and sold to us for use in a specific trade.
And so I did not ever become involved in trying to judge what the number should be. Rather, I accepted the number as it was and went ahead with industrial hygiene accordingly.
That's the way I have to answer your
question. Q. Sure. And I guess it goes back to your
relying on the literature at that time; is that Page 103
25 correct?
Hoyl e-Harold-Robert-021891.txt
1 80 1
3 4 5 6 7 8
10
A. Well, we relied on -- on what was common knowledge. Another way to say it is literature. It goes beyond that. It's spoken word, too, but -,- spoken literature.
Q. Okay. Mr. Hoyle, let me ask you one more question for some of the other Louisiana lawyers that are here: Are you familiar with the products, the manufacturers of the insulation, asbestos-containing insulation products at Dow in
Plaquemine, 11 A. 12 Q. 13 A. 14
the brands? The brands?
Yes,, sir.
No. MR. COVERT: Excuse me just a
15 second. 16 That's all I have. 17 THE WITNESS: Okay.
18 MS. CLARK: Thank you, Mr. Covert. 19 And I believe, at this time, we'll stop 20 for today, and we'll start again in the morning. 21 Is 9:30 a satisfactory time with 22 everybody, for scheduling? Herschel, are you 23 going to go next? 24 MR. HOBSON: I don't know. 25 MS. CLARK: Is that satisfactory
18 1
1 2 3 4 5 6 7 8
10 11 12 13 14 15 16 17 18 1
21
with you all? Okay. Thank you very much. THE VIDEOGRAPHER: The time
3:12 p.m., and we're off the record.
is
(Whe reupon, the video deposition of
Mr. Harold Robert Hoyle was recessed for the day, to be reconvened on the 19th day of February,
1991, at 9:30 a.m.)
9 0
2 3 4 5
199,
arloRT @Wr 'ID8
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co
INC.
1111 Bagby, Suite 2500 February 23, 1991
Fax:
(713) 654-1888
Heritage Plaza Houston, Texas 77002
Tel:
(7 13) 65 1-1 100
HAND DELIWRED Petroleum Tower
550 Fannin, Suite 1125
Ms. Sandra F. Clark
Beaumont, Texas 77701
MEHAFFY & WEBER Fax: (409) 833-0793
2615 Calder Avenue
Tel: (409) 833-0016
Beaumont, Texas 77704
Re:
Cause No. A-134,614
Russel H. Alle?4 et al vs.
(B91-8), (B91-9), (B91-11)
Anwiican Petrofina, Inc. Deposition of.
Harold Hoyle
Dear Ms. Clark:
Enclosed herewith please find a copy of the original deposition of the witness named above. Please have the witness review and sign the jurat page before any Notary Public prior to returning to our office.
Should the witness find it necessary to make any changes or additions to the deposition, please use the amendment sheets enclosed.
Should you have any questions regarding this matter, please feel free to contact our office.
Sincerely,
M @A@ Rangel Scheduling Department
mar
Enclospre
cc:
-Mr. Hershel L Hobson Ms. Kathy Kubach Mr. Geolge
Abrams Mr. Peter Boyd Wells, III Mr. Thomas W. Duesler Mr. James H. Powers Mr. Robert H. Hood Mr. Gary A. Bezet
R. Covert Duncan S.
Ms. Demse Stuart Mr.
Page 2 M@ Sandra Clark
Mr. Ms. Ms. Mr. Mr. Mr. Mr. Mr.
J. Thad Heartfield Mr. David Ledyard Gail C. Jenkins Ann L. Burkey John J. Hainkel, II Mr. Christopher A. Conkling Mr. John B. Hall J. Wi ley George D. Allan Jones Kristopher E. Fernandez Ms. Katherine Armstrong
William E.
Schwei nle,
Jr.
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