Document V3o9ydd9mXDKQ4OYmRb7YMxXK

mms 1 1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA 2 PENNSYLVANIA DEPARTMENT OF GENERAL: NO. 284 SERVICES, PENNSYLVANIA : M.D.1990 3 DEPARTMENT OF TRANSPORTATION, : PENNSYLVANIA PUBLIC UTILITY : 4 COMMISSION, PENNSYLVANIA EMERGENCY: MANAGEMENT AGENCY, and : 5 PENNSYLVANIA DEPARTMENT OF STATE : Plaintiffs : 6 Vs. : UNITED STATES MINERAL PRODUCTS : 7 COMPANY, CERTAINTEED CORPORATION, : COURTAULDS AEROSPACE, INC., : 8 CHEMREX, INC., PHILIPS ELECTRONICS: NORTH AMERICA CORPORATION, : 9 ADVANCE TRANSFORMER COMPANY and : MONSANTOCOMPANY : 10 Defendants : 11 BEFORE THE HONORABLE CHARLES P. MIRARCHI, JR. 12 January 28, 2000 13 Trial testimony in the above-captioned 14 matter, held at the Commonwealth Court of 15 Pennsylvania, City Hall, Courtroom 453, 16 Philadelphia, Pennsylvania, on Friday, 17 January 28, 1999, at 10:10 a.m., before 18 John W. Begley, a Registered 19 Professional Reporter - Notary Public there 20 being present. 2 1 ESQUIRE DEPOSITION SERVICES 22 1880 JFK BOULEVARD - 15TH FLOOR 23 PHILADELPHIA, PENNSYLVANIA 24 215 - 988-9191 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60562 1 APPEARANCES: 2 2 HUMPHREY, FARRINGTON & MC CLAIN, P.C. 3 BY: KENNETHB. MCCLAIN,ESQUIRE 4 JAMES ZIEGLER, ESQUIRE 5 221 West Lexington - Suite 400 6 Independence, Missouri 64051 7 Phone: 816-836-5050 8 Representing the Plaintiffs 9 10 LAW OFFICES OF THOMAS W. HENDERSON 11 BY: THOMAS W. HENDERSON, ESQUIRE 12 One Oxford Center 13 Pittsburgh, PA 15219 14 Phone: 412-394-1298 15 Representing the Plaintiffs 16 17 MONTGOMERY, MC CRACKEN, 18 WALKER & RHOADS, LLP 19 BY: JOYCE S. MEYERS, ESQUIRE 20 123 South Broad Street 21 Philadelphia, PA 19109 22 Phone: 215 - 772-7452 23 Representing the Defendant Courtaulds 24 Aerospace, Inc. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 4 HOYLE, MORRIS & KERR BY: SUSAN K. HERSCHEL, ESQUIRE One Liberty Place - Suite 4900 1650 Market Street Philadelphia, PA 19103-7397 Phone: 215-981-5770 Representing the Defendant CertainTeed i J T 35 1 WHITE & WILLIAMS 1 INDEX 2 BY: THOMAS M. GOUTMAN, ESQUIRE 2 Testimony of: John P. Woodward PAGE 3 KATHY A. O'NEILL, ESQUIRE 3 By Mr. Goutman 7 4 WILLIAM SCHMIDT, ESQUIRE 4 5 WILLIAM YOUNGBLOOD, ESQUIRE 5 6 One Liberty Place - 18th Floor 6 7 1650 Market Street 7 8 Philadelphia, PA 19102 8 9 Phone: 215 - 864-7000 9 10 Representing the Defendant Monsanto 10 11 Corporation 11 12 12 13 DANAHER, TEDFORD, LAGNESE & NEAL, PC 13 14 BY: KENNETH R. NEAL, ESQUIRE 14 15 Capitol Place 15 16 21 Oak Street 16 17 Hartford, Connecticut 06106 17 18 Phone: 860-247-3666 18 19 Representing the Defendant U.S. 19 20 Mineral Company 20 21 21 22 22 23 23 24 24 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60563 68 1 1 Q. Mr. Woodyard, have you ever 2 MR. EDGE: In the name of the 2 testified in Court before? 3 Commonwealth of Pennsylvania, this 3 A. No, this is the first time. 4 Commonwealth Court is now declared open, the 4 Q. Welcome to Court. 5 Honorable Charles P. Mirarchi, Jr., 5 Mr. Woodyard, did you have a 6 presiding. 6 chance to inspect the T&S Building before it 7 Please be seated. 7 was blown up? J 8 Good morning. 8 A. Yes, I did. 9 MR. GOUTMAN: May I proceed, 9 Q. And how many times did you do 10 Your Honor? 10 that? 11 THE COURT: Mr. Goutman, you 11 A. Twice. 12 may proceed. 12 Q. And can you tell us about those 13 MR. GOUTMAN: Mr. Woodyard. 13 two visits. 14 -- 14 A. The first time I toured what we 15 JOHN P. WOODYARD, recalled to 15 are calling the occupied floors, the floors 16 testify. 16 away from the fire. And the second time I 17 -- 17 actually went on the sixth floor, the fire 18 MR. EDGE: Sir, state your 18 floor, and inspected that floor as well as 19 full name for the record, please. 19 some of the garbage and debris that was left 20 THE WITNESS: John Woodyard. 20 behind from the fire. 21 MR. EDGE: I remind you that 21 Q. Were you able to see above the 22 you are still under oath. 22 drop ceiling to where the duct is? 23 MR. GOUTMAN: Good morning. 23 A. Yes, I was. On several of the 24 (Jury responds good morning) 24 floors, maybe three, during the occupied 7 1 Your Honor, picking up where we 2 left off, I believe I proffered Mr. 3 Woodyard as an expert in PCB cleanup, 4 source and origin of PCBs, PCB testing, 5 PCB regulations, the physical and chemical 6 properties of PCBs, and the costs of 7 asbestos abatement. 8 THE COURT: That's correct. 9 MR. GOUTMAN: And The Court 10 has ruled -- 11 THE COURT: And The Court has 12 found that Mr. Woodyard is an expert in 13 these fields and may so testify as an 14 expert in Court. 15 Of course, you remember that 16 an expert is a person that has specific 17 training and knowledge in a particular 18 science or field of endeavor that permits 19 him to give opinion testimony. The 20 average person can't give opinion 21 testimony; only fact testimony. 22 BY MR. GOUTMAN: 23 Q. Good morning, Mr. Woodyard. 24 A. Good morning. 9 1 floor inspection I poked my head up above 2 ceiling tiles and looked around. 3 Q. By occupied floors do you mean 4 floors other than floors four through seven? 5 A. Exactly. 6 Q. And were you able to see in the 7 electrical trenches on the floors? 8 A. Yes, I was. One of the things 9 we also did, and I did, personally, was to 10 take the tops off of some of these troughs 11 which run right down the center of the 12 hallway and look inside. 13 Q. Did you have a chance to review 14 the test data of surface and air tests taken 15 at the T&S Building? 16 A. Yes, I did. 17 Q. Can you give us an idea of the 18 volume of testing that was done and that you 19 reviewed? 20 A. There were thousands of samples 21 taken. The material that I have has filled 22 boxes and occupies a good part of my office 23 back home. 24 Q. And have you read and ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60564 10 1 familiarized yourself with those boxes of 2 test data? 3 A. Yes, I have. 4 Q. And as part of your job as a PCB 5 specialist do you normally review test data 6 like that? 7 A. Yes. 8 MR. MC CLAIN: Objection, Your 9 Honor. It is leading. 10 MR. GOUTMAN: IH rephrase 11 it, Your Honor. 12 THE COURT: Rephrase it. 13 BY MR. GOUTMAN: 14 Q. What do you normally do with 15 test data as part of your job as a PCB 16 specialist? 17 A. I review it routinely as part of 18 every project. 19 Q. Sir, were you able to reach any 20 conclusions about the PCB levels found in 21 that building after the fire? 22 A. Yes, in general the air data 23 showed that there was almost no measurable 24 PCB in the building at all, and the surface 12 1 we commonly term a high contact level. 2 That's the level you would apply to things 3 that might be touched in the course of a 4 normal day, work or at home. 5 Q. And does the EPA set forth what 6 types of locations that the ten microgram 7 level is applied to? 8 A. In the regulations they list a 9 number of situations that they consider high 10 contact type situations: Day care centers, 11 residential homes, schools. Places like 12 that. 13 Q- Would the ten microgram level 14 apply to the T&S Building? 15 A. Absolutely. 16 Q. Now, what is the 100 microgram 17 level? 18 A. The 100 microgram level would be 19 what would be termed as a low contact area. 20 Kind of the opposite of a high contact. 21 Q. Based upon your review of these 22 reams of data, after the fire on average did 23 the occupied floors of the T&S Building 24 comply or not comply with the EPA i i ii ii 1 wipe samples that were collected throughout 2 the building showed that the levels were well 3 below the EPA safe standard. 4 MR. GOUTMAN: Can members of 5 the jury see this? 6 (Jury responds they can). 7 BY MR. GOUTMAN: 8 Q. You mentioned the EPA standard. 9 You call it the EPA safe standard? 10 A. Yes, sir. 11 Q. And what is the EPA safe 12 standard? What are the levels? 13 A. The levels? The levels, for 14 solid surfaces it is ten micrograms per 100 15 squared centimeters. 16 Q. For what surfaces? 17 A. For solid surfaces. 18 Q. Are there any other levels that 19 the EPA stipulates? 20 A. Yes, there's another level of 21 100 micrograms per 100 squared centimeters. 22 Q. Now, what surfaces does the ten 23 microgram level apply to? 24 A. The ten microgram level is what 13 1 regulations? 2 A. Yes, they did. On average they 3 were well below the ten microgram standard. 4 Q. Now, sir, you also mentioned a 5 risk assessment in your report that was 6 performed by Dr. James. What level was that? 7 MR. MCCLAIN: Your Honor, I 8 object to him reciting what Dr. James did. 9 MR. GOUTMAN: It is in his 10 report and he relied upon it. 11 MR. MCCLAIN: Your Honor, it 12 doesn't matter. It is the Primavera 13 problem. He can't get up here and recite 14 what another expert said. 15 MR. GOUTMAN: Your Honor, it 16 is in his report. Primavera pertains to 17 out of court statements. This is already 18 a matter of record and under 703 he can 19 rely upon it. It is in his report. 20 MR. MCCLAIN: Your Honor, 21 relying upon it in rendering his opinion 22 is one matter; simply to get up here and 23 say what Dr. James said is not permitted. 24 MR. GOUTMAN: He is not simply ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60565 14 1 going to say that; he is going to testify 2 concerning the implications of that, Your 3 Honor. 4 THE COURT: Overruled. 5 BY MR. GOUTMAN: 6 Q. What level, risk assessment 7 level, did Dr. James come up with? 8 A. Dr. James' risk assessment came 9 up with a level of 19.8 micrograms per 100 10 centimeters squared for high contact. 11 Q. Based upon your review of these 12 reams of test data from the T&S Building, 13 could you tell us whether the building 14 complied with the risk assessment cleanup 15 level? 16 A. Oh, yes. Absolutely. 17 Q. After the fire? 18 A. Yes. 19 Q. Now, sir, you use a term in your 20 report called PCB fire; is that correct? 21 MR. MC CLAIN: Objection, Your 22 Honor. It is leading. 23 MR. GOUTMAN: I'm referring 24 him to a term in his report, Your Honor. 16 1 has heard that term before. What is the 2 significance of trichlorobenzene in terms of 3 PCB transformer fires? 4 A. Well, scientists have found that 5 tricholorbenzene, if it is burned under the 6 right conditions, can create dioxin 7 compounds. 8 Q. Can PCBs alone, when they are 9 burned, cause dioxins to form? 10 A. No, sir. 11 Q. What is it, then, in 12 transformers that causes dioxin to form? 13 A. The tricholorbenzene. 14 Q. And, sir, what is the 15 significance of that, in terms of cleanup 16 levels? 17 A. Well, these dioxin compounds, 18 which you may have heard about during the 19 course of trial or otherwise, are considered 20 by EPA and others to be of much greater 21 concern than PCB, so in a case of a PCB fire, 22 as we are calling it, if these dioxins are 23 formed, they become the chemical that people 24 are concerned about and the ones that they 15 1 MR. MCCLAIN: It is leading. 2 What difference does it make if he says it 3 in his report? We are here to hear him 4 testify. 5 THE COURT: Overruled. 6 BY MR. GOUTMAN: 7 Q. What do PCB specialists such as 8 yourself mean by the phrase PCB fire? 9 A. Well, the term PCB fire is kind 10 of a term of art that we use to refer 11 specifically to transformer fires. 12 Q. Let me stop you. Transformer. 13 What is a transformer? 14 A. A transformer is an electrical 15 device. You probably have seen them around 16 town. They are used to convert voltage in 17 electrical systems. , 18 Q. A PCB transformer, what kind of 19 fluid is in a PCB transformer? 20 A. Two kinds. One is, of course, 21 PCB, and the second, in some cases almost 22 half or an equal quantity of PCB is what is 23 called trichlorobenzene. 24 Q. Now, I don't believe the jury 17 1 test for and they drive the cleanup level. 2 Q. And which way do they drive the 3 cleanup level? 4 A. Way down. 5 Q. Now, sir, we have heard about 6 the NIOSH guideline. What is the application 7 of the NIOSH guideline to transformer fires 8 or PCB fires as you call a transformer fire? 9 A. Well, NIOSH typically 10 MR. MCCLAIN: Your Honor, I 11 object. He testified he never worked for 12 NIOSH. He was not involved in the 13 regulations. He didn't have anything to 14 do with them. I object to him speaking in 15 regard to NIOSH. We have heard from two 16 people that were direct employees of NIOSH 17 and Dr. Woodyard is not qualified in that 18 area. 19 MR. GOUTMAN: Your Honor, he's 20 been dealing with PCB regulations for 20 21 odd years, including transformer fires 22 and -- 23 THE COURT: It would be 24 appropriate to lay a foundation for his ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60566 18 1 knowledge in this area. 2 BY MR. GOUTMAN: 3 Q. What is your background with 4 respect to dealings with NIOSH and the NIOSH 5 guidelines? 6 A. As part of my experience, I 7 think, as we discussed yesterday, I worked on 8 a number of what we are calling PCB fires, 9 where a transformer fire actually resulted in 10 the release and formation of these dioxin 11 compounds. On a number of those projects 12 NIOSH has been directly involved in that work 13 and has participated in the standard setting 14 process for dioxin. 15 Q. Have you published any papers on 16 NIOSH's involvement in those transformer 17 fires? 18 A. Yes, I have. 19 Q. Now, what is NIOSH's guideline 20 with respect to these transformer fires? 21 MR. MC CLAIN: Objection, Your 22 Honor. 23 THE COURT: Overruled. 24 THE WITNESS: Guideline 20 1 determine whether the cleanup should be 2 done or not. 3 Q. And what is the PCB surrogate 4 level that NIOSH uses? 5 A. It really varies all over the 6 place, depending on the project, but I 7 think the level we have been citing for 8 this case is one microgram. 9 Q. Now, Mr. Woodyard, were there 10 any transformers involved in the T&S 11 Building fire? 12 A. No, sir. 13 Q. Was there any tricholorbenzene 14 involved in the T&S Building fire? 15 A. No, there were not. 16 Q. In the sense that you use and 17 PCB specialists use PCB fire to mean 18 transformer fire, was this a PCB fire? 19 A. No, it was not. 20 Q. Would the NIOSH transformer 21 fire guideline be applicable to the T&S 22 Building? 23 MR. MCCLAIN: Your Honor, I 24 object. To characterize the NIOSH level 19 1 regarding PCBs? 2 BY MR. GOUTMAN: 3 Q. Yes. 4 A. Because NIOSH's focus on these 5 fires has been the dioxin levels, because 6 there may also be PCBs present and 7 released during that fire but of lesser 8 concern than a dioxin, NIOSH will set a 9 PCB standard as part of setting the dioxin 10 standard, I guess what I would call a 11 surrogate. 12 Probably the best way to 13 explain that is PCB lab work is a lot 14 cheaper than dioxin lab work and it is a 15 lot faster, and if you are doing cleanup, 16 like I have done many times, speed is 17 important, so you don't want to wait four 18 days to get your lab results back every 19 time you take a sample, so in these kinds 20 of projects, and NIOSH is involved in 21 this, you try to relate somehow the dioxin 22 concentration to the PCBs so you can stop 23 analyzing for dioxin all the time; you can 24 just start using your PCB data to 21 1 as a transformer standard is false. 2 MR. GOUTMAN: Your Honor, 3 that's a -- 4 MR. MCCLAIN: I need to 5 approach side bar, Your Honor. 6 (Side bar discussion). 7 MR. GOUTMAN: Your Honor, I 8 object to counsel making objections like 9 that. That is not appropriate. 10 THE COURT: First of all. 11 explosive statements that that's false 12 have no place for the jury, have no place 13 in front of the jury. 14 MR. MCCLAIN: We need to be 15 in chambers because this is going to go on 16 and I need to state ~ 17 THE COURT: We will go in 18 chambers, but you must contain yourself. 19 MR. MCCLAIN: All right. I 20 will. I cannot tell The Court how angry I 21 am about this testimony which is knowingly 22 false. I'm saying that to The Court in 23 The Court's presence and I need to go in 24 chambers so I can express myself politely. j i ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60567 22 24 i 1 THE COURT: Frank, tell the 1 The fact of the matter is, I 2 jurors we are going to take a short 2 Your Honor, that all of NIOSH's work has 3 recess. 3 dealt with transformer fires. All of the 4 (Side bar discussion). 4 instances where Dr. Melius was involved 5 MR. MC CLAIN: Your Honor, The 5 were transformer fires and in fact the 6 Court has heard extensive testimony and 6 CIB, the Current Intelligence Bulletin 7 reviewed the NIOSH documents. Never 7 that they introduced into evidence, 1986, 8 before, and it is unsupported in the 8 dealt specifically with transformer fires, 9 record and in the documents that The Court 9 so it is an absolutely accurate statement. 10 has seen, in regard to the NIOSH standard 10 This witness has published papers on it 11 is it referred to as a transformer 11 and, again, there was not, I believe, an 12 standard, and counsel has represented it 12 evidentiary objection made other than my 13 now to the jury that the NIOSH standard is 13 witness apparently disagrees with your 14 a transformer standard and only applies to 14 witness; therefore, your witness can't 15 transformer fires and this witness has 15 testify. 16 said so as well without training and 16 MR. MC CLAIN: No, it was the 17 background in regard to NIOSH. The Court 17 disagreement to the characterization of 18 heard from Dr. Lemen and Dr. Melius, both 18 the NIOSH standard as the NIOSH 19 direct employees of NIOSH, who testified 19 transformer standard, which counsel has to 20 that it applied to buildings contaminated 20 know is untrue. 21 with PCBs; not to transformer fires, and 21 MR. GOUTMAN: With all due 22 putting this testimony on, I believe, is 22 respect, counsel, I don't think you know 23 putting on knowingly false testimony, and 23 what you are talking about. I believe 24 I feel very strongly about that. It is 24 Mr. Woodyard does and I think we should 23 1 one thing to say in his opinion it ought 2 not to be applied outside situations of 3 transformers; it is another to say that 4 the NIOSH standard is a transformer 5 standard. It's not. And to represent it 6 as such I believe violates our obligation 7 of candor with The Court and the jury. It 8 goes beyond advocacy. 9 MR. GOUTMAN: Your Honor, I 10 don't think that objection is even worth 11 responding to. I really don't. I suppose 12 counsel is saying that because my evidence 13 is different than your evidence, you can't 14 put your evidence in. I guess that's what 15 it amounts to or he is saying that my 16 witnesses are better than your witnesses 17 or is the objection I know more than 18 Mr. Woodyard about it? 19 MR. MCCLAIN: You have to 20 cite -- 21 MR. GOUTMAN: The fact of the 22 matter is -- I don't have to cite anything 23 to you. The fact of the matter is that -- 24 it is discussed, Your Honor, at page 19. 25 1 get on with his testimony. 2 MR. MC CLAIN: Merely because 3 the witness is willing to say it 4 MR. GOUTMAN: And not be 5 burdened by these frivolous objections, 6 particularly since counsel has expressed 7 his desire that we get on with this trial. 8 MR. MC CLAIN: That is true. 9 Nonetheless, it is one thing to advocate a 10 position; it is another to represent 11 something which we have extensive evidence 12 on and presented in a way that you have to 13 know is not true. 14 MR. GOUTMAN: That's just 15 ridiculous. 16 THE COURT: Wait a minute. 17 Somewhere along the line I'm missing 18 something. Let's kind of back up a 19 minute. The extensive evidence, as I 20 understand it we have, came from the 21 Plaintiff, and that is a very important, 22 integral part of this case. However, if 23 the evidence of the Plaintiff differs 24 from the evidence of the Defendant, and ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60568 26 1 apparently according to the report it 2 does, and according to the report it has 3 been known that it does for a longer 4 period of time than these moments that we 5 have had in Court, that Mr. Woodyard was 6 going to testify as to dioxin levels 7 and -- 8 MR. GOUTMAN: Transformer 9 fires. 10 THE COURT: Transformer fires, 11 and apparently there was no motion to 12 preclude this report for ^ny reason. I 13 don't know that it would have been 14 sustained, but there was nothing before us 15 to preclude it, and now, in front of the 16 jury, to have an outburst of that nature 17 is more than offensive. It could be very 18 damaging. I think that we have to contain 19 ourselves. Now, the fact is I didn't 20 expect, I didn't know what course or 21 avenue the defendants would take, but I'm 22 sure, I was sure that it would certainly 23 not be in accordance or agreement with the 24 Plaintiff anymore than I expected the 28 1 the world. He has published on NIOSH 2 standards, he has published on development 3 of the NIOSH standard, he has published 4 papers on how NIOSH developed its 5 standard, and, in fact, Your Honor, they 6 moved into evidence and relied upon the 7 1986 Current Intelligence Bulletin titled 8 transformer fires in PCBs, and they are 9 saying that was the reestablishment of the 10 NIOSH standard, and that makes clear what 11 they are talking about is transformer 12 fires. That's when NIOSH gets called in. 13 But, in any event, Plaintiffs 14 apparently disagree with Mr. Woodyard. 15 And that's fine. But that is not an 16 evidentiary objection. 17 Your Honor, I ask that an 18 admonishing instruction be given in front 19 of the jury because that objection, 20 frankly, I have never heard in court. I 21 object. That's false. I have never heard 22 that. And that's inappropriate. If 23 counsel were disturbed by it he could have 24 said, I object, Your Honor. I would like * f J 27 1 Plaintiff to be in accord with the 2 Defendants" side of the case. We 3 probably would not have had a trial if 4 that were not so. 5 MR. MCCLAIN: Your Honor, to 6 suggest to the jury -- I didn't object 7 that he's talking about dioxins or that 8 he's talking about transformer fires. You 9 are right. It is in the report. So be 10 it. He may believe that NIOSH only 11 applies, but they can't represent it as 12 the NIOSH transformer standard. They 13 can't stand up and say that to the jury. 14 There is nowhere in NIOSH's own documents 15 that The Court has before them that say 16 that it is a transformer standard and to 17 suggest that -- it is one thing to say 18 that it is my opinion that this only 19 applies to transformers; it is another 20 thing to call it the NIOSH transformer 21 standard. It is not. 22 MR. GOUTMAN: Your Honor, this 23 witness can call it whatever he wants to. 24 He is one of the leading PCB experts in 29 1 to go to side bar. That is very damaging, 2 very prejudicial, and, frankly, Plaintiff 3 is not entitled to let the jury know, as 4 my evidence comes in, whether he thinks it 5 is true or false. He is entitled to make 6 an objection that this Court can rule 7 upon. And that was frankly an outrageous 8 thing for counsel to do and I believe an 9 admonishment is appropriate. 10 MR. MC CLAIN: Your Honor, I 11 believe that there is no evidence in the 12 record that NIOSH has ever called this a 13 transformer standard and to represent that 14 NIOSH calls it a transformer standard is 15 false. The witness ought not to be 16 allowed to say that NIOSH calls it a 17 transformer standard. 18 THE COURT: Isn't this where 19 Cross examination comes in? 20 MR. MCCLAIN: Your Honor has 21 stopped several witnesses of mine and 22 questioned them about things to clarify 23 to be sure that the jury was not misled, 24 and has been very careful about that. 4 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60569 30 32 1 THE COURT: Yes, we have. 1 that's incorrect. The whole criteria i 2 MR. MC CLAIN: And has not 2 document, which is some 150 pages long, 3 waited for Cross to do it, and has been 3 there may be a few pages in the back that 4 very careful to be sure - 4 refers to the history of transformer 5 THE COURT: Those, I don't 5 fires, but I'm not even sure that those 6 believe, were of the same vein. 6 occurred by 1977, because my recollection 7 MR. MC CLAIN: Boy, Judge, I 7 is that the first significant one occurred .J 8 thought you have been very meticulous 8 in Albany or Binghamton in about 1980 or 9 about this. 9 1981. And that's what the CIB bulletin in ft 10 THE COURT: I think so, too. 10 1986 pertained to. It pertained to that 11 MR. MCCLAIN: And stopped 11 plus some others, but the criteria 12 witnesses when you thought they were 12 document that forms the basis for the 13 overstating or misstating something and 13 NIOSH standard of one microgram in the air 14 tried to clarify and correct things and 14 and one microgram on surface came out of 15 not waited for Cross, and it was in that 15 the criteria document in 1977 before there 16 vein that I made the objection. I don't 16 was first known of a PCB fire. 17 think we ought to allow these things to be 17 MR. GOUTMAN: Your Honor, that 18 perpetuated and just simply wait for Cross 18 might be interesting Cross examination. 19 to take care of it, and The Court hasn't 19 This witness will say that NIOSH's 20 done that to date and it was in that sense 20 involvement in PCBs, in terms of cleanup, 21 that I made my objection. It was only in 21 has been restricted to transformer fires. 22 that sense because The Court has been so 22 And the fact that counsel, counsel 23 meticulous about such things, so if they 23 disagrees with this witness and then would 24 want to characterize it as their witness's 24 stand up and say that's false, that's 31 33 1 opinion it applies to transformers I would 1 never happened to me in court, and that's, 2 not object and I have not objected, but to 2 frankly, outrageous. That is not an 3 call it by counsel the NIOSH transformer 3 evidentiary objection. Your Honor, I ask 4 standard is not correct. 4 that counsel be admonished before the 5 THE COURT: Let me ask this: 5 jury. 6 Is there a NIOSH transformer standard? 6 MR. MC CLAIN: Your Honor, as 7 MR. GOUTMAN: Yes. 7 Mr. Henderson pointed out, the 1977 8 MR. HENDERSON: No. 8 criteria document that establishes the 9 MS. HERSCHEL: Guideline. 9 NIOSH standard is not restricted to 10 There is no standard. 10 transformers. The first transformer fire ! 11 MR. GOUTMAN: There is a 11 was not even until 1981. Now, the witness 12 guideline, Your Honor, that was developed 12 may have an opinion that NIOSH not be 13 in response to a series of transformer 13 called in unless there's a transformer 14 fires. 14 fire. I can Cross examine that. That's ! 15 THE COURT: All right. Those 15 his opinion. But for counsel to stand up 16 guidelines deal with transformer fires? 16 and represent that the standard is called 17 MR. GOUTMAN: Yes, that's what 17 a transformer standard is not true. It is 18 they were based upon, transformer fires, 18 just not true. And it goes beyond 19 and as we were going to develop further 19 argument. 20 until counsel's outburst, on the projects 20 THE COURT: We have heard that 21 that he has been involved in, NIOSH isn't 21 NIOSH has promulgated certain standard -- 22 called in unless there's a transformer 22 MS. HERSCHEL: Guidelines, 23 fire. 23 Your Honor. There's a difference, sir. 24 MR. HENDERSON: Your Honor, 24 THE COURT: Guidelines. Had ESQUIRE DEPOSITION SERVICES TOWOLDMON0060570 I 34 1 published certain guidelines. In fact, 2 that makes it even better or more clear 3 because if NIOSH hasn't developed certain 4 standards, then it would be a 5 misrepresentation for him to say a NIOSH 6 standard because they haven't developed or 7 promulgated a standard, as I understand 8 it. They were a series of guidelines. 9 MR. GOUTMAN: Correct. 10 THE COURT: Which may have had 11 the effect of establishing a standard, 12 but, nevertheless, they were guidelines. 13 Now, for him then to say something about 14 NIOSH's standard, if they haven't 15 published them, that would be totally 16 inaccurate. 17 MR. GOUTMAN: Well, I don't 18 believe he -- I thought we were talking 19 about guidelines, Your Honor; I didn't 20 think we were talking about standards. We 21 can correct that mischaracterization. 22 THE COURT: First of all, I 23 want to go back over Mr. Woodyard's 24 testimony. Right before the recess it 36 1 enough to interject, in Plaintiffs' 2 Exhibit Pen 2754.07 the publication is 3 called Criteria for a Recommended 4 Standard. 5 MR. GOUTMAN: It was never 6 adopted. 7 THE COURT: And it is a NIOSH 8 publication. So I thought I did hear the 9 word "standard", although I kept being 10 corrected that it was guidelines. 11 MS. HERSCHEL: That's what 12 NIOSH does. Your Honor. They recommend to 13 the regulatory agencies. It just was 14 never adopted. 15 THE COURT: Right, but they 16 recommended a standard. 17 MR. GOUTMAN: Right. 18 THE COURT: I'm limiting this 19 to the use of the word in conjunction with 20 the area that we are talking about. 21 MR. MCCLAIN: Judge,canI 22 make a suggestion so we don't have -- it 23 is a suggestion. We frequently come, 24 after we let our tempers cool, come to a * J 1 | i 35 1 would have been. Where the question of 2 standard, I believe, came in. 3 MR. GOUTMAN: If it was, I 4 misspoke. It's not a standard. 5 THE COURT: I would like to be 6 sure. 7 MR. HENDERSON: Could Isay 8 something before you start searching, 9 John, because I think it needs to be said. 10 The 1977 criteria document was a 11 recommended standard for one microgram in 12 air. From that a surface contamination 13 became what was called a guideline, so 14 there are two different aspects of this 15 and I believe that Mr. Goutman is now 16 correct when he says that he intended to 17 say it was a guideline and not standard. 18 MR. GOUTMAN: Well, Your 19 Honor, I'm glad counsel brought that up 20 because the 1977 criteria document didn't 21 say anything about surface guidelines. 22 That didn't happen until 1986 with the CIB 23 which talked about transformer fires. 24 THE COURT: If I may be bold 37 1 suggested approach. I would not object to 2 counsel talking about this as being 3 NIOSH's standard which Mr. Woodyard 4 believes should only be applied in 5 transformers but not representing that 6 NIOSH says that. That would get us over 7 my objection and that solves it. 8 MR. GOUTMAN: Yesterday we had 9 Mr. McClain wanting to rewrite my 10 exhibits; not he wants to rewrite my 11 Direct testimony and, indeed, my witness's 12 testimony. I think my witness believes 13 that it is a transformer standard -- 14 excuse me. Guideline. Your Honor, the 15 second package is, by the way, the 1986 16 CIB. Right behind that. And if you can 17 just, what is it called? 18 THE COURT: Current 19 Intelligence Bulletin 45. 20 MR. GOUTMAN: And I think the 21 title of it is electrical equipment 22 failures. 23 THE COURT: "Potential Health 24 Hazards from Electrical Equipment Fires or I J ESQUIRE DEPOSITION SERVICES 4 TOWOLDMONOQ60571 38 1 Failures". 2 MR. GOUTMAN: Exactly. 3 THE COURT: And that's 4 Plaintiffs' Exhibit 3234.01. 5 MR. GOUTMAN: And according to 6 Plaintiffs' own evidence, that was where 7 they got this surface guideline of one 8 microgram. 9 THE COURT: I think the 10 forward is very illustrative of what we 11 are talking about. I'm quoting, "Current 12 Intelligent Bulletins (CIB's) are reports 13 issued by the National Institute for 14 Occupational Safety and Health, (NIOSH), 15 Centers for Disease Control, Atlanta, 16 Georgia, for the purpose of disseminating 17 new scientific information about 18 occupational hazards. 19 "And these CIB's are prepared 20 by the staff of the Division of Standards 21 Development and Technology Transfer, 22 NIOSH." 23 MR. GOUTMAN: Then the third 24 paragraph, where they talk about, "Because 40 1 a transformer fire, they surely should 2 have anticipated this testimony. 3 MR. MCCLAIN: It's not stated 4 in your report anywhere that he was going 5 to characterize the NIOSH standard as a 6 the NIOSH transformer standard. It is one 7 thing that he believes that the standard 8 only applies when there's a transformer 9 fire. We will deal with that on Cross. 10 But it was the representation of counsel 11 that it is the NIOSH transformer fire 12 standard, which was adopted by our 13 Department of Health in this circumstance 14 as the correct standard. NIOSH wrote a 15 report for this building and didn't say we 16 don't have authority here because there 17 was no transformer fire, so NIOSH 18 apparently didn't know that it was only a 19 transformer standard because they wrote a 20 report here to us about it and said to 21 apply their standard, so -- 22 THE COURT: It sounds like it 23 would be very interesting Cross 24 examination. 39 4 1 1 of the recent attention given to human 1 MR. MC CLAIN: Yes, it would, 2 exposure of Polychlorinated Biphenyls, 2 and I plan to do that on the substance; it 3 (PCBs), Polychlorinated Dibenzofurans, 3 is just the characterization, Judge, of 4 (PCDFs), and Polychlorinated 4 it. It is one thing to say, Do you 5 Dibenzo-P-Dioxins (PCDDs), and related 5 believe, Mr. Woodyard, that this should 6 compounds resulting from electrical 6 only apply to transformer fires. Yes, 7 equipment fires or failures", etc.. 7 that's my belief and then state why? It 8 That's what this is about, Your Honor. 8 was developed out of transformer fires, 9 So- 9 but to say that NIOSH characterized it as 10 MR. HENDERSON: Your Honor- 10 a transformer standard belies the facts as 11 MR. GOUTMAN: Frankly - I'm 11 we know them in this case, including their 12 not done. 12 own involvement where they wrote a letter 13 Frankly, Your Honor, what 13 and a report about our fire knowing that 14 plaintiffs want right now is a mini 14 there was no transformer involved. i 15 hearing for this Court to decide whether 15 MR. GOUTMAN: Suggesting they 16 my witness is right or wrong, and that's 16 look at the EPA standard. 17 not appropriate. If they thought my 17 In any event, Your Honor, 18 witness's statements in his report were 18 counsel has made his position clear. We 19 unscientific they could have filed last 19 believe the objection is frivolous. It 20 March when they were told to do so a 20 has had the effect of disrupting this 21 Motion in Limine and challenged him on Fry 21 testimony ten or 15 minutes into it with a 22 grounds. If they, indeed, I'm sure they 22 shout of, I object. That's false. That 23 had read his report where he said NIOSH 23 was an outrageous statement of counsel and 24 shouldn't have been consulted if it is not 24 we ask that an admonishing instruction be ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60572 S 42 1 given. Perhaps that might deter counsel 2 in the future. 3 THE COURT: Well, The Court 4 has to correct the atmosphere created by 5 the outburst. As much as we have 6 refrained from bringing it to the 7 attention of the jury, nevertheless where 8 the jury is exposed to an outburst that is 9 potentially damaging to the trial, The 10 Court has no alternative but to give its 11 instruction in the presence of the jury to 12 advise them that they cannot accept 13 statements made spontaneously of that 14 nature, because they are the finders of 15 fact. 16 MR. MCCLAIN: That's fine, 17 Your Honor. 18 MR. GOUTMAN: Your Honor, I 19 request that they be told that the 20 objection was inappropriate and that they 21 disregard Plaintiffs' counsel's statement 22 concerning his views on Mr. Woodyard's 23 testimony. 24 MR. MCCLAIN: Your Honor, 44 1 expert and truly believes that he is an 2 expert, and it may be that your theories 3 are contrary to his position and may try 4 to survive Cross examination, and that's 5 the way this is played out without making 6 factual remarks that could be 7 misconstrued. 8 MR. MC CLAIN: Your Honor, I 9 should have approached you about it, but I 10 was reminded of The Court's scrupulous 11 attempt to be sure that people don't 12 overstate even on Direct testimony the 13 positions that The Court has already 14 received substantial evidence on. 15 THE COURT: As I say, we have 16 so many documents here and we have used 17 the English language somewhat loosely, but 18 there are words like guidelines and 19 standards used and consequently, when a 20 person is giving an opinion, he may avail 21 himself to the same rights to be more free 22 with the use of the English language 23 rather than as precise as you want, which 24 opens the door, as I say, for the j 43 1 that goes farther than you were 2 suggesting. I will state that -- that 3 won't help. I think the Court's 4 suggestion remedies whatever. I doubt 5 that it had much impact, frankly, at this 6 point, but, nevertheless, I think The 7 Court can handle this. 8 THE COURT: See, the problem 9 is that we only learn by hindsight. 10 MR. MC CLAIN: Absolutely. 11 THE COURT: And consequently I 12 don't know that it had any damage or I 13 don't know that it had great damage. The 14 important thing is that we make the 15 corrections as we proceed to avoid it 16 simmering unknown and come out maybe in a 17 deliberation room, so this way we correct 18 the record when we can as speedily as we 19 can. That's one of the things that we 20 have tried to do continuously here. 21 With that, I don't know if 22 Mr. Woodyard is right or wrong, but the 23 point is he has exhibited credentials to 24 cause The Court to find him to be an 45 1 examination of him on Cross. 2 MR. MC CLAIN: Your Honor, 3 remember, you were going to look at this 4 issue. He did say it was a standard. 5 THE COURT: I didn't forget 6 that we were going to go back and look at 7 that, but I didn't want to leave the 8 additional comments that were being made 9 to go unheard by The Court. 10 MS. HERSCHEL: Your Honor, 11 while we are on the subject of the 12 instruction, I believe that whether or not 13 you characterize what Mr. McClain says as 14 spontaneous, I think that you need, if you 15 will, to communicate to the jury is that 16 it shouldn't have been said and that they 17 cannot consider it. 18 MR. MC CLAIN: Your Honor, 19 that's designed to be punitive to me and 20 The Court understands the nature of my 21 comment, and the -- 22 MS. HERSCHEL: Mr. McClain 23 MR. MC CLAIN: Excuse me. 24 I'm not finished. ESQUIRE DEPOSITION SERVICES \ TOWOLDMONOQ60573 46 1 No matter what you say that is 2 what it is designed to do, and the reality 3 is, the reality is, I have explained it to 4 The Court and I think The Court 5 understands my motivation in responding 6 the way that I did and the Court's 7 suggested approach, I think, takes care of 8 it without being punitive to me, which is 9 what I think The Court was intending to 10 do, but that's what you want The Court to 11 do, so that the jury will think I'm a bad 12 guy, and only The Court can make me look 13 that way, and that's what you want to have 14 happen, and I object to it. 15 MR. GOUTMAN: But your 16 explanation doesn't go to why you said, I 17 object. That's false. You just should 18 have said, Your Honor, I need to go to 19 side bar. Instead, you intentionally 20 communicated to the jury your own view of 21 this witness's testimony, and that's 22 absolutely inappropriate. Absolutely 23 inappropriate. That violates every rule. 24 MR. MC CLAIN: My response was 48 1 that. 2 MR. MCCLAIN: And that's why 3 I thought that the Court's suggestion made 4 sense, that you, ladies and gentlemen, are 5 the fact finders and only you can 6 determine what is false or not, and the 7 opinion of counsel or even the witness are 8 not determinative; you have to make those 9 decisions. I thought a statement to that 10 effect, which is what you said you were 11 going to do, would cure the problem. 12 MR. GOUTMAN: Your Honor, at 13 this point, then, The Court is saying 14 that, Yes, Plaintiffs' counsel might be 15 right here. It might be false. That's 16 not right either. Interjecting at this 17 point either the Court's or counsel's 18 belief as to whether the testimony is true 19 or false is inappropriate. 20 MR. MCCLAIN: I do believe it 21 is false, Your Honor. 22 MR. GOUTMAN: And I suppose 23 you think you had every right to tell the 24 jury that. 47 49 1 spontaneous to what I heard which appears 1 MR. MC CLAIN: I believe that 2 to me to be an intentional attempt to 2 my reaction was justified under the 3 mislead the jury. That's what it appeared 3 circumstances. The next time I will 4 to me at the time. And I still believe 4 approach side bar, but I was -- 5 that it is misleading. And so it was not 5 THE COURT: I don't think the 6 an attempt to do anything except my 6 action was justified. You cannot justify 7 reaction to what I was hearing, which was 7 the action, to be frank with you, 8 clearly an overstatement at the very least 8 Mr. McClain. 9 of what the evidence would show. And so 9 MR. MCCLAIN: Okay. 10 to suggest to the jury that I ought to be 10 THE COURT: We have had 11 punished is really inappropriate. 11 innumerable numbers of side bars where we 12 THE COURT: I don't want to 12 have encouraged everybody to contain 13 use the word "punished'1, but I think you 13 themselves and to avoid the use of 14 have to be called to task in the presence 14 extemporaneous epitaths which would be j 15 of the jury so that the jury cannot get 15 clouding of the issue. 16 the impression that the Court is putting 16 I want to go back now and have 17 its imprimatur on the falsity of the 17 read that those few questions. j 18 subject matter. 18 (The following questions and 19 MR. MCCLAIN: Likewise, The 19 answers were read back by The Court 20 Court should not weigh-in that the jury 20 Reporter: 21 believes that this testimony has to be 21 "Q. And what is the PCB 22 believed either, and I thought the Court's 22 surrogate level that NIOSH uses? 23 suggestion -- 23 "A. It really varies all over 24 THE COURT: I never suggested 24 the place, depending on the project, but I ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60574 50 1 think the level we have been citing for 2 this case is one microgram. 3 "Q. Now, Mr. Woodyard, were 4 there any transformers involved in the T&S 5 Building fire? 6 "A. No, sir. 7 "Q. Was there any 8 tricholorbenzene involved in the T&S 9 Building fire? 10 "A. No, there was not. 11 "Q. In the sense that you 12 used and PCB specialists use PCB fire to 13 mean transformer fire, was this a PCB 14 fire? 15 "A. No, it was not. 16 "Q. Would the NIOSH 17 transformer fire guideline be applicable 18 to the T&S Building? " 19 MS. HERSCHEL: The term we 20 used was guideline and that's why I 21 focused on it, Your Honor. 22 THE COURT: That's what I 23 heard read back, but I didn't hear the use 24 of the words "electrical standard". 52 1 guideline focused on dioxin levels, sets 2 PCB standard and the PCB surrogate level. 3 I don't know. I can't-4 MR. GOUTMAN: Any5 THE COURT: In the beginning I 6 heard that the levels were well below the 7 EPA standard. 8 MR. GOUTMAN: Right. Your 9 Honor, if there's any confusion, I don't 10 know that there is, but if there is any I 11 will certainly ask this witness whether 12 NIOSH is a standard or guideline. I think 13 he knows the answer to that question. 14 THE COURT: Sometimes I think 15 my watch runs away with itself. Before we 16 break for lunch, I want to instruct the 17 jury and, frankly, I want to take some 18 more questions to diffuse the atmosphere, 19 and then we will break for lunch in about 20 a half-hour. 21 MR. GOUTMAN: We do have some 22 time. It is only 11 o'clock. 23 THE COURT: I thought that 24 said 12 o'clock. 51 1 MR. GOUTMAN: He's talking 2 about transformers, which is electrical. 3 THE COURT: Or transformer 4 standard. 5 MR. GOUTMAN: Isaid 6 transformer -- I said what I said. I 7 can't recall the quotation exactly, but 8 The Court just heard it. 9 THE COURT: But I heard the 10 guidelines and, in other words, I have 11 heard a number of expressions discoursing 12 on this area. 13 MR. HENDERSON: My notes 14 reflect that the witness was referring to 15 a PCB standard, but I didn't hear that in 16 John's read backs of the various questions 17 and answers. 18 THE COURT: I didn't hear it 19 here. Did you? 20 MR. GOUTMAN: He referred to 21 the PCB standard by the EPA, which is a 22 standard. 23 MR. HENDERSON: No, in 24 connection with NIOSH. NIOSH's standard 53 1 All right. Let's go back. 2 MR. EDGE: Jurors, you may be 3 seated. This Court is reconvened. 4 THE COURT: Members of the 5 jury, sometimes it pays to go back over 6 some of the basic and fundamental rules of 7 what a trial is and what we are doing 8 here, and what we are doing here is trying 9 a case involving two different points of 10 law. The Plaintiff thinks that they were 11 damaged by some things that the Defendant 12 did; the Defendant said, Hey, we didn't do 13 anything. And that's not unusual and this 14 is why we have jurors, who will determine 15 the facts because what happens in these 16 cases is that we must get to the facts. 17 Only the facts can come from the evidence 18 that is admitted and the testimony that we 19 receive and the credibility that you give 20 to each of the witnesses. 21 Now, you are the sole judges 22 of the facts, and during the course of 23 trial an attorney may have occasion to 24 object, and we talked about that, and J ! ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60575 54 1 offer an objection and The Court will 2 rule. The Court has the last say, so to 3 speak, in that respect. And if we make an 4 error then, of course, the appellate 5 courts will correct us, but we have the 6 last word in that type of situation, and 7 it is incumbent on an attorney that he 8 should object if he feels that the 9 evidence is not appropriately admissible 10 at this point, but when the attorney goes 11 beyond that and states that's false, that 12 is a factual situation. Attorneys have no 13 right to tell you what the facts are. You 14 will determine what the facts are. And 15 consequently Mr. McClain was in error when 16 he went beyond objecting and stated, as he 17 did, that's false. I told that to 18 Mr. McClain and I'm telling that to you, 19 so that will play no part in your 20 deliberation and your consideration or in 21 your handling of this matter as you have 22 been so attentive right along. 23 Now that we have stated that, 24 as I say, I'm sure Mr. McClain realizes 56 1 (The following question was 2 read back by The Court Reporter: ''Would 3 the NIOSH transformer fire guideline be 4 applicable to the T&S Building?) 5 BY MR. GOUTMAN: 6 Q. Would the NIOSH transformer PCB 7 fire guideline be applicable to the T&S 8 Building? 9 A. No, it would not. 10 Q. And why not, sir? 11 A. As I said, in my experience the 12 one microgram standard is always driven by a 13 PCB transformer fire having occurred and the 14 corresponding dioxin levels that we talked 15 about. 16 Q. And was there a transformer 17 involved in the fire at the T&S Building? 18 A. No, there was not. 19 Q. Sir, your 20 plus years working 20 on PCB projects, absent a transformer fire, 21 what standards are used? 22 A. The EPA safe standard that I 23 have alluded to before. 24 Q. You mentioned risk assessments. 55 1 that that is not the appropriate way to 2 put forth reasons for an objection, and we 3 can go forward now. 4 MR. MC CLAIN: Thank you, Your 5 Honor. I appreciate your admonition. 6 THE COURT: I would just like 7 to add that over the thousands of cases 8 that I have tried never have I had a group 9 of attorneys, both for the plaintiffs and 10 the Defendants', who are so devoted to 11 their respective sides that they are 12 constantly keeping us up to date in our 13 work, and they are learned, so I have the 14 highest respect for them, but just as if 15 one of our children were to do something 16 wrong, we would tell them and we would be 17 remiss if we didn't. 18 MR. MC CLAIN: Thank you, Your 19 Honor. 20 MR. GOUTMAN: May I proceed, 21 Your Honor? 22 THE COURT: Yes. 23 MR. GOUTMAN: Can you read 24 back our last question. 57 1 What role does that play in setting cleanup 2 standards or cleanup levels, I should say? 3 A. Understand first that the EPA 4 safe standard is based upon kind of a generic 5 risk assessment, if you will. It is designed 6 to be safe enough to be applied to any 7 situation. In reality, of course, whenever 8 you have a release and you are doing cleanup 9 the situation might be a little different. 10 Maybe the occupancy is different. Maybe the 11 expected life of the facility is different. 12 There are things that will change. The 13 exposure which change the risk, so in those 14 situations it is common to do a risk 15 assessment. 16 Q. Was a risk assessment done by 17 anyone on behalf of the state here? 18 A. No. 19 Q. In your 20 plus years of 20 experience, sir, if there is not a 21 transformer fire which is followed; the NIOSH 22 guideline or the PCB standard? 23 MR. MCCLAIN: Objection, Your 24 Honor. It is leading. ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60576 58 1 MR. GOUTMAN: Which is 2 followed? 3 THE COURT: Which of two is 4 not leading. Overruled. 5 THE WITNESS: The EPA safe 6 standard or standard developed as part of 7 a risk assessment. 8 BY MR. GOUTMAN: 9 Q. Now, sir, were there dioxins 10 found in the T&S Building? 11 A. Yes, there were. 12 Q. Where did they come from? 13 A. Probably from burning of other 14 materials that were burned up in the fire. 15 Plastics, things like that. 16 Q. Did you observe the debris on 17 the sixth floor of the T&S Building? 18 A. Yes, I did. 19 Q. Did you observe, in those bags 20 of debris, anything that would produce dioxin 21 if it were burned? 22 A. Certainly. Again, a lot of the 23 building contents were made of plastic. 24 Desks and office equipment and things of that 60 1 A. Yes, I am. 2 Q. Now, sir, you mentioned, while 3 we were asking about your credentials, about 4 what you do on a PCB job site, you mentioned 5 something about finding the source and origin 6 of PCBs. Could you tell us, and I think you 7 referred to it as detective work, could you 8 tell us what you mean by that? 9 A. Well, one of the first things 10 you want to do, of course, when you are 11 involved in cleaning up a release is define 12 where it came from because you want to make 13 sure that you remove that high concentration 14 source material and that you don't create 15 cross contamination and things like that, so 16 you are mainly looking at sources. You are 17 immediately trying to look at the sources of 18 your lab work and somehow tie that back to 19 what the source might have been. 20 Q. And have you done that detective 21 work in this case? 22 A. Yes, I have. 23 Q. Were PCBs found in the T&S 24 Building after the fire? t J ! i 59 1 nature. That was contained in that debris. 2 Q. Can PCBs, when burned, produce 3 dioxin? 4 A. No. 5 THE COURT: What was the 6 answer? 7 THE WITNESS: No, the science 8 is clear on that. 9 BY MR. GOUTMAN: 10 Q. Now, sir, getting back to where 11 we started, based upon the EPA safe standard 12 and the risk assessments, where did the 13 thousands and thousands of tests that you 14 reviewed fall? 15 A. The average for the floors in 16 that building were well below the EPA safe 17 standard. 18 Q. And where did they fall with 19 respect to the risk assessment level? 20 A. Likewise. They were well below 21 that 19.8 standard held by Dr. James. 22 Q. By the way, sir, in your 20 plus 23 years of PCB work are you involved with 24 setting up cleanup levels? 61 1 A. Yes, they were. 2 Q. Mr. Woodyard, based upon your 3 PCB specialist's experience all over the 4 world could you tell the jury where they came 5 from? 6 MR. MC CLAIN: Objection, Your 7 Honor. It is leading. 8 MR. GOUTMAN: I asked him 9 where they came from. 10 MR. MC CLAIN: No, the wind up 11 is what I object to, Your Honor. 12 THE COURT: Overruled. 13 BY MR. GOUTMAN: 14 Q. Sir, based upon your experience 15 of 20 odd years all over the world in PCB 16 work, could you tell the jury where the PCBs 17 came from in the T&S Building? 18 A. The PCBs came from 19 PCB-containing building products that were 20 burned up during the fire. 21 Q. And could you tell the jury how 22 that happened? 23 A. The fire occurred on the sixth 24 floor, as you have seen. The products were { ESQUIRE DEPOSITION SERVICES * TOWOLDMONOQ60577 62 1 burned on the sixth floor. The smoke from 2 the fire, including the PCB building 3 products, was distributed throughout the 4 building. 5 Q. What products contained PCBs 6 that were burned on the sixth floor? 7 A. The light fixtures, which 8 contained small PCB capacitors in the light 9 ballasts, and the ductboard. 10 Q. And the light ballast 11 A. Right, the fluorescent light 12 fixtures. 13 Q. And what else? 14 A. And the ductwork that was burned 15 in the fire area. 16 Q. And how is it that the PCBs, 17 once subjected to this fire, how is it that 18 they were distributed throughout the 19 building? 20 A. As I mentioned, they were part 21 of the smoke that was generated and 22 distributed throughout the whole building. 23 They were distributed by water, by tracking, 24 through conduits, other holes in the floor, 64 1 preparing an exhibit illustrating that data? 2 A. Yes, I have. 3 MR. GOUTMAN: Your Honor, for 4 the record, we are showing the witness and 5 the jury Exhibit 3156. 6 With the Court's permission, 7 could the witness perhaps approach the 8 exhibit? 9 THE COURT: Yes. 10 MR. MC CLAIN: Your Honor, 11 yesterday we had a substantial discussion 12 about each of these on the record. Is it 13 necessary to restate all of that at this 14 time or are the positions of the parties 15 well enough known to The Court that we 16 don't have to restate objections to 17 positions on these exhibits? In other 18 words, I don't want to have to go back 19 through the hearing that we had yesterday 20 on each of these exhibits. 21 THE COURT: The objections you 22 made yesterday are preserved. 23 MR. NEAL: All of the parties' 24 objections. Your Honor? 63 65 1 and other ways that the smoke could have 1 THE COURT: Yes. 2 moved around the building. 2 BY MR. GOUTMAN; 3 Q. Do you have an opinion as to 3 Q. Mr. Woodyard, you have got a 4 whether or not PCBs were a constituent or 4 fancy pointer, I see. 5 part of that smoke that circulated throughout 5 A. Yes, I never leave home without 6 the building? 6 it. 7 A. Yes, they were. Where there's 7 Q. As long as it's not one of those 8 smoke there's PCB, as far as I'm concerned. 8 laser pointers. 9 Q. And did you also review, as part 9 Could you explain to the jury 10 of your review of test data, tests taken of 10 what this exhibit shows. 11 asbestos taken out of the building before the 11 A. Yes, sir, this exhibit is 12 fire but analyzed for PCB content after the 12 entitled, "PCBs in Asbestos Fireproofing". 13 fire? 13 It is designed to show you two things. 14 A. Yes, I did. 14 MR. MC CLAIN: Your Honor, do J 15 Q. Sir, did you submit those 15 you have these exhibits on the bench? Do 16 samples to a laboratory? 16 you have these? 17 A. Yes, I did. 17 THE COURT: Yes. 18 Q. And what were the results? 18 THE WITNESS: Again, this 19 A. Of the samples taken before the 19 exhibit is entitled, "PCBs in Asbestos 20 fire? 20 Fireproofing", and it is intended to show 21 Q. Yes. 21 you two things in particular. 22 A. The results showed extremely low 22 BY MR. GOUTMAN: 23 levels of PCB present in the fireproofing. 23 Q. Well, first of all, what is this 24 Q. Sir, have you assisted us in 24 axis -- ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60578 66 1 A. Axis. The line going up and 2 down shows you the relative concentration of 3 PCBs. 4 Q. So from zero to 20? 5 A. Yes, the higher up on the chart 6 the higher the level of PCBs. 7 Q. And it shows what; PCBs in the 8 asbestos fireproofing? 9 A. Yes, sir. 10 Q. Now, can you explain what this 11 all means? 12 A. Okay. There's two bars here. 13 This one on the left, going back to the 14 discussion we were having a moment ago, this 15 represents the samples taken from the T&S 16 Building before the fire. These were 17 collected in 1992. 18 Q. So about two years before the 19 fire? 20 A. Exactly. 21 Q. When were they analyzed by your 22 lab? 23 A. They were analyzed, I believe, 24 in 1998 or early 1999. 68 1 fire. This refers to the analysis that Mr. 2 Kominsky did of fireproofing samples that 3 were collected several years after the fire 4 had occurred. His results showed that on 5 average for the building the PCB 6 concentration was 17.7 parts per million in 7 the fireproofing, more than five times the 8 level that pre-existed or before the fire 9 occurred. 10 Q. What, if any, significant 11 conclusions did you draw from that data? 12 A. Well, it is clear from these 13 results that almost all of the PCB in that 14 building was deposited by the fire. 15 Q. And where did the rest of it 16 come from? 17 A. It came from pre-existing 18 background levels in the Harrisburg area. 19 Q. Did you review data from 20 asbestos taken in other buildings in the 21 Harrisburg area? 22 A. Yes, I did. 23 Q. And did you prepare or assist us 24 in preparing an exhibit which shows that 67 1 Q. And what did that analysis show? 2 A. Well, it showed that on average 3 the levels found in that fireproofing was 4 about three parts per million. Again, this 5 is PCB that was in the fireproofing samples 6 that were taken before the fire ever 7 occurred. 8 So this illustrates that there was 9 what I would term as background level or a 10 low level of PCB already present in that 11 building before the fire ever occurred. 12 Q. You just used the word 13 "background". What does background mean? 14 A. Well, background, background in 15 this context is the level of PCBs that are 16 present in the Harrisburg area. The term 17 background, you might be familiar with 18 background noise. If you were talking on the 19 phone, you hear chatter in the background, 20 you can tell somebody is in a train station 21 or airport or something like that. It is the 22 same concept, basically. 23 This second item over here, the 24 second bar, is called T&S Building after the 69 1 data? 2 A. Yes, I did. 3 MR. MCCLAIN: Your Honor, 4 just so we have some foundation, so that I 5 know where -- 6 THE COURT: What number is 7 this? 8 MR. GOUTMAN: I'm handing him 9 back the same one. 10 THE COURT: It is the same 11 one. 12 MR. GOUTMAN: Yes, because I 13 forgot to ask a question. Ms. Herschel 14 told me I forgot to ask a question and I 15 do whatever Ms. Herschel tells me. 16 BY MR. GOUTMAN: 17 Q. Just so that we are clear, you 18 were talking about air samples and wipe 19 samples before. What kind of samples are we 20 talking about here? 21 A. These are what we would call 22 bulk samples of fireproofing specifically. 23 Somebody grabbed a bunch of fireproofing and 24 took it and put it in a sample container and * $ % j J ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60579 70 72 1 analyzed it. 1 the proper foundation for the witness, 2 Q. Now, sir, the standard that you 2 since he didn't perform the tests. 3 were talking about earlier, the EPA standard, 3 BY MR. GOUTMAN: m 4 is that the same as the bulk standard or is 4 Q. Are you relying upon the results 5 it something else? 5 of these tests? 6 A. It is something else entirely. 6 A. Yes, I am. 7 That standard applies to hard surfaces that 7 Q. What are we looking at here? 8 you might come in contact with. Here we are 8 A. This is also entitled, "PCBs in 9 talking about the results in fireproofing. 9 Asbestos Fireproofing", and part of this is 10 The standard is a completely different thing. 10 the same as the diagram you just saw. It 11 It is unrelated. 11 shows on the far left that 3.0 parts per 12 Q. This would apply to wipe 12 million background level that we talked 13 samples? 13 about. Way over here on the right side is 14 A. Yes. 14 that 17.7 average that Mr. Kominsky did after 15 Q. And that's -- 15 he did his sampling. What we also see on 16 A, Bulk samples. 16 here is two other bars. I mentioned before 17 Q. At this level is there any 17 that samples were taken for the state in the 18 standard that says this is unsafe? 18 Milton Hershey School and the South Office 19 A. No, there's not. 19 Building, which is, again, a state building. * 20 Q. At this level, 17.7, is there 20 Q. And samples of what? 21 any standard that says this is unsafe in 21 A. Samples of fireproofing, just 22 terms of bulk concentrations? 22 like in the other situations. 23 A. No, there's not. 23 Q. Asbestos fireproofing? 24 Q. Your Honor, before we get to the 24 A. Exactly. So these samples were 71 73 1 next exhibit, where, picking up, and please 1 taken by Mr. Cocciardi, analyzed, and the 2 stay there because we are about to put up the 2 results from those buildings showed, in the 3 next exhibit, where was the asbestos taken 3 case of the Milton Hershey School, an average 4 from in those other buildings? What 4 of four-and-a-half parts per million; in the 5 buildings? 5 case of the South Office Building an average 6 A. The other buildings? 6 of seven parts per million in the 7 Q. In Harrisburg. 7 fireproofing. 8 A. The samples were taken in two 8 Q. What did that tell you? 9 other buildings in Harrisburg; one is the 9 A. Well, these buildings 10 Milton Hershey School and one is the South 10 represented more of a true background for the 11 Office Building, owned by the state of 11 Harrisburg area. They were unaffected by the 12 Pennsylvania. 12 fire. And they showed me a number of 13 Q. And at whose request were the 13 different things. Clearly the fireproofing 14 samples taken? 14 in the T&S Building before the fire is 15 A. They were taken by the state or 15 consistent with what we found in these other 16 for the state by Mr. Cocciardi. 16 locations. In fact, it is lower than what we i 17 Q. And, sir, you have reviewed the 17 found in these other locations as background 18 results of those tests? 18 source. There's no real surprise there. 19 A. Absolutely. Yes. 19 Q. You are familiar with the theory 20 Q. I'm showing the witness and the 20 advanced by the government in this case that 21 jury DM 3157. 21 PCBs came out of the ductboard during the 22 MR. MC CLAIN: Your Honor, I 22 normal operation of the building? 23 just need further background as is he 23 MR. MCCLAIN: Your Honor, it 24 relying on the results of these tests and 24 is leading. It is a leading question. ESQUIRE DEPOSITION SERVICES TOWOLDMON0060580 ! 74 1 THE COURT: You didn't hear 2 the question? 3 MR. MC CLAIN: No, it was 4 leading. 5 MR. GOUTMAN: Your Honor, it 6 was a preparatory statement about the 7 theory and I was going to ask him to 8 comment on it. 9 THE COURT: Overruled. 10 BY MR. GOUTMAN: 11 Q. I think my question was, sir, 12 are you familiar with the government's theory 13 on PCBs coming out of the ductboard during 14 the normal operation of the HVAC system? 15 A. Yes, I am. 16 Q. Does this, can you tell us 17 whether or not this exhibit lends any insight 18 for you as a PCB specialist concerning that 19 theory? 20 A. Yes, it does. In addition, as I 21 said before, to showing that the T&S Building 22 pre-fire levels were consistent with other 23 background in the Harrisburg area, if the 24 state's theory were true and in this 76 1 mentioned Mr. Kominsky's data. Did you 2 review his data? 3 A. Yes, I did. 4 Q. And what significant findings 5 did you make from that data? 6 A. There were a number of things of 7 interest to me from Mr. Kominsky's data. 8 First, and I don't know if you have seen 9 this, but the vast majority of samples where 10 he found Aroclor 1262 11 Q. Samples in what are we talking 12 about? 13 A. We are talking about, again, 14 fireproofing. 15 Q. The asbestos fireproofing. 16 A. Just to refresh, Mr. Kominsky 17 took, I believe it was, in 30 different 18 locations samples where he sampled the 19 outside exposed parts of the fireproofing and 20 then the inside portion that is up against 21 the building, itself. And so he had 60 22 results; 30 locations. Each location had two 23 samples. One of the results of his findings 24 that was interesting, most of the Aroclor j 75 1 particular building the PCBs were flying out 2 of the ductwork and around the building and 3 depositing them in the fireproofing, the 4 levels in this building would be higher than 5 the background we are finding in the 6 Harrisburg area. In other words, that this 7 three would have been much higher because it 8 it is specific to the T&S Building. 9 Q. Sir, what conclusion did you 10 draw, then, from the fact that before the 11 fire there was three parts per million and 12 after the fire there was 17.7 parts per 13 million found in the asbestos? 14 A. Again, almost all of the PCB 15 found in the building after the fire was due 16 to the fire. It was deposited by PCBs and 17 PCB products that were burned during the 18 fire. 19 Q. And those PCB products were 20 the -- 21 A. Were, again, the ductboard 22 containing 1262 and the light ballasts, light 23 fixtures, that contained the Aroclor 1242. 24 Q. Sir, did you review -- you 77 1 1262 results from the PCBs that were burned 2 up in the ductboard were found on the outer 3 surface, the exposed surface of the 4 fireproofing, which is completely consistent 5 with what we are talking about here, the idea 6 that PCBs were deposited during the fire. 7 THE COURT: May I ask if 8 counsel can hear Mr. Woodyard? 9 MR. MC CLAIN: I can't hear 10 him at all, Your Honor. I didn't want to 11 interrupt, but I'm not -- 12 THE COURT: Use the 13 microphone. 14 MR. GOUTMAN: We don't want 15 Mr. McClain to miss anything. 16 MR. MC CLAIN: You don't want 17 me taking a nap or anything. 18 THE WITNESS: So, again, the 19 first points of note for Mr. Kominsky's 20 result is that for most of the samples 21 where he found the PCB that was originally 22 contained in the ductboard before it was 23 burned up, he found that PCB on the outer 24 surface of the fireproofing, which is J ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60581 78 1 completely consistent with it being 2 deposited as a result of smoke being 3 distributed through the building. 4 BY MR. GOUTMAN: 5 Q. How about the levels that he 6 found? 7 A. The levels of the 60 samples 8 that he collected, only one of those samples 9 came up above 50 parts per million. 10 Q. So what? 11 A. Well, 50 parts per million in a 12 different context, it is a very important 13 meaning with EPA because it is the cut-off 14 for disposal; deciding where you can dispose 15 of the waste if you happen to take it away. 16 Q. And of Mr. Kominsky's 60 samples 17 how many were over this EPA 50 part per 18 million cut-off? 19 A. Just one, on the 11th floor. 20 Q. What, if any, significance does 21 that have to you as a PCB specialist in terms 22 of the disposal of the asbestos in the T&S 23 Building? 24 A. Well, what it tells me is that 80 1 of PCBs are we finding in the Hershey School 2 and the South Office Building? 3 A. If I remember correctly, I 4 believe they were Aroclor 1260. 5 Q. One more question about Mr. 6 Kominsky's data. Did he find any other 7 Aroclors in the asbestos? 8 A. Yes, he did. 9 Q. What other kind of Aroclor? 10 A. He found specifically Aroclor 11 1254. 12 Q. And what, if any, significance 13 was that for you as a PCB specialist? 14 A. Well, as I'm sure you have 15 heard, there are different kinds of Aroclors 16 that are used for different things. Aroclor 17 1254, while being found in the fireproofing, 18 had no defined source in the building. In 19 other words, there was no place in the 20 building that this could have come from which 21 to me is completely consistent with the whole 22 idea of background. In other words, there is 23 some low PCB level there, but we don't know 24 where it came from. 79 81 1 there may have been a small area that the 1 MR. MCCLAIN: Your Honor, 2 levels were above 50 parts per million, but 2 could we approach at side bar on this. 3 the vast majority of the building was below 3 THE COURT: Yes. 4 50 parts per million, and that material, at 4 (Side bar discussion). 5 50 parts per million, a landfill is permitted 5 MR. MCCLAIN: Your Honor, I 6 to accept those PCB. 6 object and ask that that question and 7 Q. Where did the state dispose of 7 answer be stricken. That's not in his 8 the asbestos? 8 report. What he says in his report is 9 A. The state disposed of all of the 9 that that demonstrates that PCBs came in 10 asbestos from the abatement project in a TSCA 10 with the fireproofing. That was the 11 landfill. 11 opinion that he expressed in his report. 12 Q. What is more expensive; a TSCA 12 And so now to say that that's background 13 landfill or an asbestos landfill? 13 is not consistent with the report and so I 14 A. A TSCA landfill is much more 14 think that we need a correction. J 15 expensive. 15 MR. GOUTMAN: Your Honor, he 16 Q. Under EPA regulations did the 16 says it was part of the original 17 state have to do that? 17 fireproofing installation. 18 A. No. 18 THE COURT: What page? 19 Q. By the way, you are talking 19 MR. GOUTMAN: I'm sorry, Your 20 about the levels that Mr. Kominsky found? 20 Honor. Page 30. That is consistent with 21 What, again, was his average found in the 21 background. He can explore that on Cross 22 asbestos? 22 examination. 23 A. 17.7 after the fire. 23 MR. MCCLAIN: No, no, no. 24 Q. One more point, sir. What kind 24 MR. GOUTMAN: That's an aspect ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60582 82 1 of background. Background is wherever it 2 came from. It was there. If you want to 3 explore what that means on Cross, that is 4 fine. 5 MR. MCCLAIN: No, I don't 6 want to wait to do that. Mr. Goutman is 7 being very careful not to tread on 8 Mr. Neal's toes and say it was in the 9 fireproofing when it was installed, but 10 that's what the witness said in his 11 opinion. If that's the opinion that he 12 wants to express he can do that, and then 13 Mr. Neal's ox is being gored; not mine, 14 but to suggest that it is just in the air 15 when what he said there was that it was 16 there at the installation is not fair, and 17 it is not his opinion that he expressed in 18 his report. That it was installed in the 19 building is one thing; to suggest that it 20 is just floating in the air and therefore 21 no one is responsible for it is another. 22 MR. NEAL: Your Honor, I'm a 23 little perplexed now. He said my ox is 24 being gored. That's what Mr. McClain 84 1 MR. MC CLAIN: Excuse me, Your 2 Honor, but that's not what he says. In 3 his report his says, it is his opinion, 4 that some, if not all, came at the time of 5 the original installation of the 6 fireproofing, meaning that it came in with 7 the fireproofing. Not that it was 8 floating around in the air as background. 9 MR. GOUTMAN: You characterize 10 it as floating around the air. Background 11 means that's what is in products. Whether 12 it got there 20 years ago, ten years ago, 13 five years ago, it is background. 14 MR. MC CLAIN: That's not what 15 background means to me. 16 THE COURT: What is the 17 question that we have that is the 18 substance of the objection? 19 MR. GOUTMAN: He's objecting 20 to the answer, Your Honor; not the 21 question. 22 MR. MC CLAIN: That the answer 23 was not found in the report. 24 THE COURT: Read back the last i ?i # * ! I 83 1 says. It seems to me that it is 2 consistent with, in the sense with what 3 Mr. Ewing said. I don't know why Mr. 4 McClain is objecting to a situation where 5 the witness is saying it didn't come from 6 the fireproofing. That's been our 7 position and, as I understood it, the 8 state's position all along. 9 MR. MC CLAIN: It has never 10 been my position that it was in the air 11 and that it is background, and to let the 12 witness say that that's a new, to express 13 a new opinion that it is from background 14 in the fireproofing would be 15 inappropriate. 16 MR. GOUTMAN: That's Mr. 17 McClain's interpretation of what the word 18 "background" is. I believe that this 19 witness explained this is what we find in 20 products in buildings around the country, 21 whether it came at the manufacture or some 22 other time, but it is background. If he 23 wants to explore that on Cross 24 examination, fine. 85 1 question and answer. 2 (The last question and answer 3 were read back by The Court Reporter). 4 THE COURT: I heard him say 5 that it came from the fireproofing, that 6 there was identity with it in the 7 fireproofing. 8 MR. MC CLAIN: He never said 9 that. 10 THE COURT: Isn't that what he 11 just read? 12 MR. GOUTMAN: It was 13 background und in the fireproofing. 14 MR. MC CLAIN: There was no 15 defined place where it came from. There 16 was no defined place where it came from. 17 Where in the world is the building? What 18 is being suggested -- 19 MR. COURT: Let me hear the 20 question and answer again. 21 (The last question and answer 22 were read back by The Court Reporter) 23 MR. MC CLAIN: He said it is 24 found in the fireproofing and there's no 4 ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60583 86 88 1 other source in the building, so this had 1 didn't know whether that meant that they I 2 to be background. Where does this say 2 could hear us or not. Perhaps The Court 3 anything about background? It says it was 3 could just find out and inform me whether 4 clearly present with the original 4 I was incorrect. 5 installation. Now he is saying it is 5 MR. MCCLAIN: One of the 6 background as if it is floating around in 6 jurors needed to go to the bathroom. 7 the air. That is not consistent with his 7 MR. GOUTMAN: Then I did j 8 report. 8 misinterpret. 9 MR. GOUTMAN: Your Honor, if 9 THE COURT: I'm sorry. 1 10 he wants to fight with this witness on 10 MR. MC CLAIN: We had a juror 11 Cross examination about the meaning of 11 that needed a comfort break at the time. 12 background, fine, but it is, I think, 12 THE COURT: I would say 13 consistent with everything he said and it 13 there's no appeal from that. 14 is in his report. 14 BY MR. GOUTMAN: 15 THE COURT: Overruled. 15 Q. Good afternoon. 16 MR. GOUTMAN: Your Honor, I'm 16 Just going back, with respect to 17 about to start a new line of questioning. 17 Mr. Kominsky's asbestos samples, did he find 18 I can proceed or we can stop for lunch, 18 1260 on each and every one of the outer 19 whatever your pleasure is. 19 samples? 20 THE COURT: We are going to 20 A. No, he did not. 21 take our lunch recess at this point. I 21 Q. What conclusions, if any, do you 22 want to point out now that one of our 22 draw from that? 23 jurors has a commitment for medical 23 A. Well, going back to the theory 24 reasons for Monday and consequently we 24 we talked about that the state has put forth 87 89 1 would be unable to have our trial commence 1 about how the 1262 PCBs were flying off the 2 on Monday. Now, it may be that we may not 2 ductboard and redistributing themselves for 3 be able to do it for other reasons 3 30 years or more in this building, you would 4 climatewise, but that's another story. 4 expect, if that were true, that the 5 Right now I'm concerned about our juror 5 distribution of that PCB would be pretty 6 and so that our next day of trial would be 6 uniform. You would find it everywhere. The 7 Tuesday, February first, but right now we 7 fact that Mr. Kominsky's samples you didn't 8 are just taking a lunch recess to 1:30. 8 find it everywhere, that a number of the 9 MR. EDGE: This Court will 9 samples contained no 1262, to me was pretty 10 take a lunch recess to 1:30 p.m. Everyone 10 telling. 11 remained seated until the jury leaves the 11 Q. Telling of what? 12 room. 12 A. Indicative that it was more like 13 (Court recessed for lunch) 13 smoke. It was a random or chaotic c J 14 MR. EDGE: This Court is now 14 distribution instead of something nice and 15 reconvened. Please be seated. 15 uniform and the product of ten or 20 or 30 16 Good afternoon, Your Honor. 16 years of what the state is claiming. 17 THE COURT: Good afternoon. 17 Q. Now, you have just described the 1 18 MR. GOUTMAN: May I proceed, 18 state's claim about the ductboard and PCBs 19 Your Honor? 19 flying off it. Do you agree with that 20 THE COURT: Yes. 20 theory? 21 Mr. Woodyard. 21 A. No, not at all. 22 MR. GOUTMAN: Your Honor, 22 Q. Did you prepare an exhibit, sir, 23 before we start, during our last side bar 23 which describes your views with respect to 24 I could see the jurors motioning and I 24 that theory? ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60584 90 1 A. Yes, I did. 2 MR. GOUTMAN: We are going to 3 show the witness and the jury DM 3121 as 4 covered by the Court's instructions. 5 MR. MC CLAIN: Fine. 6 MR. GOUTMAN: Your Honor, 7 could the witness come down from the 8 witness stand? 9 THE COURT: Yes, you may step 10 down, Mr. Woodyard. 11 BY MR. GOUTMAN: 12 Q. Now, Mr. Woodyard, I think, just 13 to go back, do you have an opinion with 14 respect to whether the government's theory is 15 correct that PCBs were flying off this 16 ductboard during the normal operation of the 17 HVAC system in the building? 18 MR. MCCLAIN: Objection, Your 19 Honor. It's leading and argumentative. 20 We have a way to do this that The Court 21 instructed us. 22 MR. GOUTMAN: I'm doing it 23 that way, Your Honor. 24 MR. MCCLAIN: I thought The 92 1 vapor pressure. On top of that, in the 2 ductboard as you may recall, this 1262 is 3 mixed in with an adhesive. In other words, 4 it is a small percentage of a mixture, glue, 5 that is used to attach this fiberglass to 6 this aluminum foil and then it is cured, it 7 solidifies, basically when it is made and 8 then manufactured and sent back out. This 9 isn't going anywhere. This is not, just 10 Aroclor 1262, which normally has almost no 11 mobility at all, but it is locked into this 12 matrix that I'm talking about in this 13 ductwork, so it is extremely stable. 14 Q. You mentioned virtually no vapor 15 pressure. Does that have any relationship to 16 the concept of vaporization? 17 A. Yes, it does. 18 Q. And could you explain that to 19 the jury, please. 20 A. Well, vapor pressure is a 21 measure, if you will, of how readily 22 something evaporates. It is really that 23 simple. And the higher the vapor pressure is 24 the more likely it is to evaporate. The 91 1 Court had a more general way that the 2 subject was to be introduced. 3 THE COURT: Overruled. 4 BY MR. GOUTMAN: 5 Q. Do you have an opinion on that, 6 sir? 7 A Yes, as I said before, I 8 disagree with the state's opinion. I think 9 there are a lot of things wrong with it. 10 Q. Could you tell the jury what you 11 think is wrong with it? 12 A. This slide lists some of the 13 major areas that I think have problems. 14 (Indicating) 15 number one, going back to the 16 slide, this slide illustrates the things that 17 are wrong with the state's theory, as they 18 put it out here, this theory that the PCBs 19 are flying out of the ductwork over 30 years 20 or so. Number one on the list is what I have 21 termed stability. Aroclor 1262, and you have 22 heard some of this already, Aroclor 1262 is 23 very stable. It is a sticky resin. It is a 24 solid at room temperature. It has almost no 93 1 lower the vapor pressure is the less likely 2 it is to evaporate. Aroclor 1262 has, 3 perhaps, the lowest vapor pressure of any 4 chemical, any organic chemical compound, so 5 it is real little. And that, as I said, 6 throw on top of that the fact it is mixed in, 7 cured into a glue mixture, it's not going to 8 go out there. 9 Number two, air testing. Let's 10 go back to the state's theory that over 30 11 years the PCBs are coming out of this 12 ductboard as the ventilation system is 13 operated. During the course of the 14 two-and-a-half years after the fire that the 15 building was reoccupied and used the 16 ventilation system was on. During that time 17 over 5,000 air tests were done throughout 18 this building. An air test is, I don't know 19 if you have heard much of this before, it is 20 a very precise method of collecting a certain 21 volume of air on a filter and also on a 22 little vapor cartridge and that data is used 23 to determine whether in this case PCBs are 24 present in the air. t j ESQUIRE DEPOSITION SERVICES TOWOLDMON0060585 - *^i3gmm 94 96 1 Q. Over what period of time does 1 Q. How sensitive are these tests? 2 this air testing run? Is it like a second? 2 A Extremely. The typical 3 How does it work? 3 detection limit was less than half a 4 A. The standard test is about three 4 microgram per cubic meter. In some cases it 5 hours or so. It takes that long for the 5 was as low as one tenth microgram per 100, so 6 little pump to draw enough air to reach the 6 it could have been as much as ten times below J 7 standard level according to the test 8 protocol. 7 what anyone would consider a guideline or 8 action mark. 9 Q. About how many air tests were 9 Q. Number three. % 10 done in the year 1994 alone? 10 A. Number three, the PCB levels on 11 A. Well, the six months right after 11 the building surfaces were extremely low 12 the fire, which is really the rest of 1994, 12 based on the surface test results. Keep in 13 there were almost 4,000 of these 5,000 air 13 mind this building was reoccupied shortly 14 tests taken. 14 after the fire. The ventilation system was 15 Q. And what does that work out to? 15 turned back on again. There were thousands 16 A. It is, if you do the math, it 16 of surface tests being taken during the 17 means that there's probably three air tests 17 course of this reoccupation period, and the 18 going on at any one time 24 hours a day. 18 PCB levels that were found on the surfaces in 19 Rather than just being a snapshot of what the 19 the building: Desks, office equipment, etc., 20 PCB levels might be, it was like a motion 20 were extremely low, which is totally 21 picture. There was always air testing going 21 inconsistent with the idea that the duct is 22 on for six months. 22 spewing out this PCB day after day after day. 23 Q. And what did those air tests 23 Q. What would you expect to find if 24 find with respect to the specific Aroclor 24 the state's theory were correct? 95 1 that the government claims was in the 2 ductboard? 3 A. These air tests found virtually 4 no Aroclor 1260 or 1262 in the air samples. 5 Q. What is the significance of 6 that? 7 A. It just wasn't there. If it was 8 there these air tests would have seen it 9 repeatedly over and over again, and as it was 10 there were, I think, out of the almost 4,000 11 samples in that six months maybe 18 actually 12 found any detectable Aroclor 1260 or 1262, 13 and of those 18 15 of them were on the fire 14 floor. So there were only three other 15 samples out of almost 4,000. 16 Q. If, in fact, this PCB Aroclor 17 1262 was flying out of the ductboard, what 18 would you have expected to find on those 19 4,000 to 5,000 air tests? 20 A. You would have found it 21 everywhere. You would have found it in most, 22 if not all, of those tests because they were 23 taken throughout the building. They were 24 taken everywhere. 97 1 A. You would definitely find 2 elevated levels. In fact, that goes to my 3 fourth point here, no PCB increase. If the 4 government's theory had any truth to it at 5 all, you not only would be finding PCBs on 6 surfaces, but for two-and-a-half years the 7 system is operating and spewing out PCBs 8 according to the government's theory, the 9 levels would be going up and people were 10 taking these surface tests for two-and-a-half 11 years during this period that the building 12 was reoccupied. They weren't going up; they 13 were staying the same at best. Even more 14 telling I think is the air testing results. 15 These air tests that I was talking about here 16 were going on for that two-and-a-half year 17 period as well. I mentioned in the first six 18 months there were some 1262 measurements 19 actually detected below the action level, but 20 down at some low -- 21 Q. 1260 or 1262? 22 A Actually, I think it was 1260 at 23 the time. For the two years after that, from 24 1995 and 1996, this air testing continued and ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60586 98 1 there were no detectable levels of this 2 Aroclor found in any of those air tests. In 3 other words, we found it, the state found a 4 little bit of it right after the fire at 5 extremely low levels and that was it. For 6 the next couple of years the ventilation 7 system continued to operate just like it 8 always did. The levels would have gone up. 9 You would have seen them in the air and there 10 was no measurable PCB in the air. 11 Q. What does that tell you? 12 A. It tells me that the 13 government's theory is wrong. The PCBs, if 14 they were coming out of the ductboard, you 15 would have found them and they would have 16 been rising. 17 Q. Number five, PCBs were still in 18 the ductboard. 19 A. The last point on the list, the 20 PCBs were an integral part. As a plasticizer 21 they are part of this adhesive, they are part 22 of this glue, and they are part of what makes 23 the duct work. If the glue fails the duct 24 falls apart. All of the evidence that you 100 1 that glue what would happen to that rigid 2 ductboard? 3 MR. MC CLAIN: Your Honor, I 4 object to the question. I don't think 5 that we have ever posited that PCBs were 6 flying out. We didn't posit that. 7 MR. GOUTMAN: Your Honor, 8 respectfully, that's what I take to be 9 their theory, but in any event, I think it 10 is a speaking objection. 11 MR. MCCLAIN: It is 12 argumentative as phrased. 13 THE COURT: Overruled. 14 MR. GOUTMAN: Could you read 15 the question back. 16 (The last question was read 17 back by The Court Reporter) 18 BY MR. GOUTMAN: 19 Q. If PCBs were flying, walking, 20 crawling, coming out of that ductboard, what 21 would happen to that rigid ductboard? 22 MR. MC CLAIN: Your Honor, I 23 object. We have never posited that they 24 were walking or crawling out of the 99 1 have seen shows that the system worked just 2 fine. The ductwork was intact. I observed 3 it myself. The building HVAC manager 4 testified that -- 5 MR. MC CLAIN: Objection, Your 6 Honor -- 7 THE COURT: Sustained. 8 THE WITNESS: If the PCBs were 9 flying out of the ductboard, after 30 10 years at least at the levels the state is 11 talking about, the ductboard would have 12 started to fall apart. There would have 13 been all kinds of evidence of that. 14 BY MR. GOUTMAN: 15 Q. Let me back up a step. What 16 role did the PCBs play in the glue? 17 A. The PCBs served as a 18 plasticizer. 19 Q. What does that mean? 20 A. That means that it was the 21 additive that helped keep the adhesive 22 pliable or somewhat flexible so you could 23 bend the duct a little. 24 Q. If the PCBs were flying out of 101 1 ductboard. 2 MR. GOUTMAN: Your Honor, 3 respectfully -- 4 MR. MCCLAIN: I'm sorry. 5 That was the question as you phrased it. 6 THE COURT: Overruled. 7 BY MR. GOUTMAN: 8 Q. Limping, hobbling, what would 9 happen to that ductboard that was rigid at 10 the time it was put in that building? 11 A. It would collapse. Adhesive is 12 part of what keeps it rigid. 13 Q. Did you see that ductboard? 14 A. Yes, I did. 15 Q. Did you see photographs taken by 16 Mr. Kominsky? 17 A. Yes, I have. 18 Q. Was that ductboard all collapsed 19 in a heap? 20 A. No. 21 Q. Could you tell us whether there 22 were still PCBs in that ductboard? 23 A. Yes, absolutely. There had to 24 be. J f I ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60587 102 1 Q. If the state's theory were 2 correct would there still have been PCBs in 3 that ductboard? 4 A. No. 5 Q. Sir, are there any other reasons 6 for your conclusion that the government's 7 theory on PCBs in the ductboard is wrong? 8 A. Based on what I have just 9 explained to you here, if you take this a 10 step further and try to create the theory 11 that the government created, it just creates 12 this incredibly unlikely story, which I would 13 like to walk you through, if I could. 14 Q. Your Honor, could I now take 15 this off the board? 16 THE COURT: Yes. 17 BY MR. GOUTMAN: 18 Q. Number six says, sir, what? 19 A. It says an unlikely story. 20 Q. And what does that refer to? 21 A. That refers to the theory that 22 the government has put forth about how the 23 PCBs flew out of the ductboard. 24 Q. Did you create some exhibits, 104 1 proportion. I won't vouch for the scale, but 2 it is pretty close. This lower level down 3 here, it is grayish, it represents the 4 aluminum foil that is on the outside. This 5 orange color here, that represents the 6 adhesive layer that has been applied to the 7 aluminum, and then on top of that you see 8 here this gold colored layer is the 9 fiberglass insulation that is then attached 10 to this glue. (Indicating). 11 Q. By the way, have you seen this 12 ductboard? 13 A. Yes, I have. 14 Q. What is the color of the 15 fiberglass? 16 A. It is a gold color. Notunlike 17 that. (Indicating). 18 Q. I believe Mr. Kominsky referred 19 to it as pink. Is it pink? 20 A. No, he was referring to 21 something else. 22 The theory again, step one, PCBs 23 break out of the glue bond. What does that 24 mean in this picture? What that means is 103 1 sir, that illustrates what you term the 2 unlikely story? 3 A. Yes, I did. 4 Q. Why don't we take a look at them 5 one by one. The first one is DM 3123 B, Your 6 Honor. It looks like 3132 B. It is titled 7 "Step one". Perhaps it is marked differently 8 on yours. 9 3123 B 10 BY MR. GOUTMAN: 11 Q. Now, sir, could you just take us 12 through this exhibit. 13 A. Yes. Again, what we are talking 14 about here, trying to explain is the state's 15 theory about how the PCBs were distributed. 16 Step one in their theory is that -- 17 Q. Let me interrupt. Can the jury 18 see this? 19 A. Step one, PCBs break out of the 20 glue bond. This picture is intended to be a 21 cut away view. If you looked, if you took a 22 piece of the ductboard and you sliced it and 23 looked at the side of it it gives you an idea 24 of roughly what it looks like in terms of 105 1 that this material here, which is the 2 adhesive, in order for the state's theory to 3 work, this material, which is a solid, would 4 have to be allowing PCB molecules to 5 essentially vaporize, somehow escape from 6 this glue, but as I was saying before when I 7 was talking about the stability, this glue is 8 a solid. It is made up of a number of things 9 with PCBs in it. The 1262 are extremely 10 stable. They have almost no vapor pressure. 11 They are a sticky resin. On top of that this 12 material is cured, it is heated during 13 manufacture to between two and 400 degrees to 14 dry it and by drying it I'm talking about 15 driving off water. The material, as it is 16 blended, is about 60 percent solid, so it is 17 a solid material. The state is claiming that 18 PCBs are coming out of this glue bond and 19 getting into the fiberglass. There's no way 20 that can happen. 21 Q. Did you see any evidence, sir, 22 that the glue was failing in this ductboard? 23 A. No, not at all. 24 Q. Did you see any evidence, sir, ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60588 106 1 that the PCBs were breaking out of this glue 2 bond? 3 A. No, no, I did not. 4 Q. Sir, how likely is this first 5 step in the government's theory? 6 A. This, as I said, this isn't 7 happening. It is extremely unlikely that 8 this is going on. 9 MR. MC CLAIN: Your Honor, I 10 would like --1 didn't hear any foundation 11 for that opinion of the witness. Is that 12 his opinion or is it based on data? I 13 didn't hear any foundation. 14 THE COURT: Mr. Goutman? 15 MR. GOUTMAN: I believe he 16 just gave the foundation. He just spent, 17 I think, five minutes explaining this 18 answer and why he reached that conclusion. 19 MR. MC CLAIN: But I didn't 20 hear whether it was based on any data. 21 MR. GOUTMAN: Your Honor, 22 could we go to side bar, please? 23 THE COURT: Yes. 24 (Side bar discussion). 108 1 he doesn't think there's data that 2 supports it. Let him make it on Cross 3 examination and not under the guise of an 4 objection that there's no data. 5 MR. MCCLAIN: I'm sorry, Your 6 Honor. I thought I got to make 7 objections. I said objection, foundation. 8 That's a proper objection. 9 MR. GOUTMAN: That isn't what 10 you said. 11 MR. MCCLAIN: I don't think 12 that he has laid a foundation for this 13 opinion. 14 MR. GOUTMAN: Well, then, you 15 can bring that up on Cross. 16 MR. MC CLAIN: And if he does 17 then I would like to know what the 18 foundation is because as far as I know he 19 doesn't have any foundation. 20 MR. GOUTMAN: Your Honor 21 MR. MC CLAIN: That's my view. 22 I objected on foundation. 23 MR. GOUTMAN: This, again, he 24 disagrees with Mr. Woodyard. Mr. Woodyard 107 1 MR. GOUTMAN: Your Honor, this 2 is another speaking objection. 3 Plaintiffs' counsel wants to make a point 4 and he should make any point he wishes to 5 make on Cross examination that there is 6 "no data" upon which this is based. This 7 witness has just spent five minutes 8 explaining the basis for it. If he wants 9 to make a point like that there is no data 10 there is a right way and a wrong way to do 11 it, and the wrong way is to say I want to 12 hear if there's any data. I want to know 13 if there's any data, Your Honor. That's 14 an inappropriate objection. 15 MR. MC CLAIN: I objected on 16 foundation and The Court asked what my 17 objection was. I said it lacks foundation 18 and I want to know whether it is data or 19 his opinion, and then Mr. Goutman 20 continued the colloquy; I didn't. 21 MR. GOUTMAN: Frankly, Your 22 Honor, he just explained for five minutes 23 the basis for his opinion. Now, counsel 24 wants to make a point with the jury that 10 9 1 just explained his foundation, the 2 foundation that the glue could not have 3 left. The bonding, the stability, etc., 4 etc. He went on and on. Now counsel 5 wants to make a point with the jury. An 6 objection is not the proper way to make a 7 point with a jury. 8 MR. MC CLAIN: I objected on 9 the basis of foundation. How does he know 10 that it doesn't come out? On what basis 11 do you make that? By saying I'm an 12 expert? He is not an expert in glue. So 13 how do you make that judgment, Judge? I 14 don't think there's foundation for this 15 opinion. Even though you qualified him as 16 an expert in PCBs on this building. He's 17 not an expert on glue, so the issue is how 18 does he make that determination? 19 THE COURT: Well, I'm not 20 going to profess to be the expert, but I 21 do know that glue has one quality of 22 adherence between two particular objects. 23 I'm sure you can ask him how they can 24 separate or not separate as the case may . i . ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60589 110 1 be. 2 MS. MYERS: Your Honor, before 3 we proceed, I would like to raise one 4 other thing while we are at side bar. I 5 didn't want to interrupt the examination, 6 but I am sitting near the jury box to see 7 the witness and to see the exhibits, and I 8 heard Mr. McClain make some very audible, 9 sarcastic comments about Mr. Woodward's 10 testimony. I was able to hear them very 11 clearly, and I suspect some of the jury 12 could hear them also. 13 MR. MC CLAIN: Once again we 14 have Ms. Meyers' supersonic hearing at 15 work. Whatever comments I make to 16 Mr. Henderson, sarcastic or not, I don't 17 believe I made any sarcastic comments, 18 however, once again, Ms. Myers continues 19 to do this kind of thing throughout the 20 trial. 21 THE COURT: What did you hear? 22 MS. MEYERS: 111 put on the 23 record what I heard. When Mr. Woodyard 24 testified that the government's theory was 112 1 THE COURT: First of all2 MR. MC CLAIN: Whenever I 3 speak to Mr. Henderson it is inappropriate 4 for her to be overhearing anything we say. 5 THE COURT: Let's not be 6 ridiculous. If one speaks loud enough one 7 does not invite someone to hear the 8 conversation; one hears automatically, and 9 that is improper. I don't want to make 10 another issue out of it, but I don't have 11 any problem about that. You can't speak 12 loud enough so that a jury can hear you. 13 Now, if Ms. Meyers can hear from where she 14 is postured, it's not her fault that she 15 heard; it is the fault of the one who is 16 speaking, who is speaking loud enough for 17 her to hear at the jury box. 18 MR. MCCLAIN: I will whisper 19 softer to Mr. Henderson, Your Honor, but 20 Ms. Meyers has specifically done this 21 throughout the trial and made issue of 22 it~ 23 THE COURT: I haven't noticed 24 anything like this. m 1X3 1 an unlikely story, Mr. McClain said, I 1 MR. MC CLAIN: I can point out 2 thought very loudly, how coincidental. 2 to The Court at least on four occasions 3 MR. GOUTMAN: Or what a 3 where she has done this in this kind of 4 coincidence. I heard the same thing. 4 fashion. I could point them out to The 5 MS. MEYERS: And then he said 5 Court and I will if you would like me to 6 it again. He said it twice. He was 6 over the weekend. 7 facing the jury. I heard it extremely 7 THE COURT: Let me put it this 8 clearly and you can see that I'm sitting 8 way: If there were three or four other 9 close to the jury box. I just wanted to 9 incidents it should have been brought to 10 raise it so that it doesn't happen again. 10 The Court's attention. There should be no 11 THE COURT: For purposes of 11 incidents like that. 12 the record, let The Court lay out the 12 MR. MC CLAIN: Yes, if they 13 courtroom. The easel is postured near the 13 were, in fact, true. That's true, Your 14 jury box. Mr. Woodyard has been asked to 14 Honor, but we have dealt with them 15 come down and speak and offer his 15 previously. I will try to whisper to 16 testimony from the exhibit on the easel 16 Mr. Henderson more softly. I understand 'I 17 and as a result the attorneys who would 17 the point, not conceding whether 18 not otherwise been able to hear have been 18 Ms. Meyers is accurate or not. 19 authorized to find positions in and around 19 MR. GOUTMAN: I heard the same 20 the jury box to be able to observe what is 20 thing, Ken, and you are not denying that 21 happening and hear what is happening, and 21 you said it, but you probably, I guess, 22 consequently it was during this incident 22 did not realize how loudly you were 23 that you heard this? 23 speaking. 24 MS. MEYERS: Yes. 24 MR. MC CLAIN: I will whisper ESQUIRE DEPOSITION SERVICES TOWOLDMON0060590 114 1 to Mr. Henderson softer, Your Honor. 2 THE COURT: This has been a 3 very long and tedious trial. Nerves can 4 get frayed, but that is not a substitute 5 for proper procedure and conduct. 6 MR. MC CLAIN: I understand. 7 MR. GOUTMAN: Your Honor, the 8 next exhibit is DM 3123 C. 9 BY MR. GOUTMAN: 10 Q. Mr. Woodyard, could you take us 11 through this exhibit. 12 A. With some trepidation. This 13 exhibit is the next one in the sequence. It 14 is entitled, "Step two. PCBs March Through 15 the Fire Ducts". Keep in mind what we are 16 doing is trying to walk you through what the 17 state is theorizing. Let's assume just for 18 discussion that a molecule of PCB gets out of 19 this glue. The next thing it comes in 20 contact with is this fiberglass material that 21 we are talking about, and somehow not just 22 comes in contact with it, but somehow works 23 its way through that fiberglass. That 24 fiberglass is at or close to room temperature 116 1 makes its way out of that glue it is going to 2 stop dead. 3 Q. The next exhibit, sir, is DM 4 3123 D. 5 MR. MC CLAIN: Before we put 6 that up, could I raise a specific -- go 7 ahead. You do it. 8 MR. GOUTMAN: Your Honor, this 9 one is entitled, "Step Three. Duct 10 Exposed to Oven Like Heat" 11 BY MR. GOUTMAN: 12 Q. Could you take us through that, 13 sir. 14 A. Okay. Now, again, somehow we 15 got through step one, where the molecule 16 breaks out of the glue. Step two, the 17 molecule has worked its way through the 18 fiberglass. Part of the state's theory 19 depends on the fiberglass surface here being 20 exposed to what I would call oven-like heat. 21 Again, the evidence is clear that the inside 22 of that ductboard is typically very close, at 23 or close to room temperature. Mechanically 24 it could never have gone above 85 degrees. * T 115 1 at which point this PCB is a sticky resin. 2 So if it hits something it is going to stop. 3 It's not going to find its way through here. 4 Certainly not as a vapor because it's not a 5 vapor at room temperature. 6 Q. What is it? 7 A. It is solid. It is a sticky 8 resin type of material. On top of that, just 9 to kind of illustrate, you have heard about, 10 we have been talking about air testing. Part 11 of the air test involves the use of glass 12 fibers, essentially fiberglass, in the sense 13 that that glass fiber is used to collect 14 particles in the air test. In other words, 15 the air test is supposed to catch the 16 particle. That's why they use glass fibers. 17 So the thought of PCBs somehow deciding to 18 work their way through fiberglass in this 19 case and not get caught every time if they 20 are there at all in an air test is totally 21 inconsistent. 22 Looking at it another way, this 23 is a great collector of particles, so if 24 there's a particle or molecule that somehow 117 1 We have testimony that it would not evaporate 2 below 102.5 from even Mr. Ewing. This is not 3 oven-like heat to me and certainly to a 4 molecule of PCBs is not going to be oven-like 5 heat. That PCB is not going to come off of 6 that fiberglass. It is stuck to it. It is a 7 solid and it wants to be a solid at that 8 temperature. 9 Q. Step four. This is DM 3123 E. 10 Step four of what you have called an unlikely 11 story. 12 A. Step four, this is entitled, 13 "PCBs Volatilize". Like I said, if that 14 molecule somehow worms its way past all of 15 those fibers, gets to the surface, in order 16 for it to somehow enter the building it has 17 to come off as a vapor. It has to somehow 18 vaporize. As I said, the state is claiming 19 that it was exposed to oven-like heat, the 20 kind of heat it would take to volatilize. We 21 have seen from science that's not the case. 22 The temperatures are not high enough to make 23 it go anywhere. So this just isn't going to 24 happen. j ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60591 118 1 Q. Your Honor, the next exhibit is 2 3123 F. 3 What is the next step in this 4 unlikely story? 5 A. The next step in this theory 6 that the state has is that this molecule 7 jumps off the PCB off the ductboard and 8 enters the air stream. This is kind of a cut 9 away view of what a piece of ductboard looks 10 like. Those arrows represent how the air is 11 flowing through the duct. In order for the 12 state's theory to work the PCBs have to enter 13 this air stream as a vapor and stay as a 14 vapor moving on down the air stream. Now, 15 like I said before, the evidence is clear 16 that the air in this duct is around room 17 temperature. And PCBs at around room 18 temperature are a solid, sticky resin type 19 material. So the whole idea of them not only 20 evaporating but traveling without even 21 condensing makes no sense at all. It would 22 never leave the side of the duct if that 23 molecule made it there in the first place. 24 (Indicating). 120 1 to find it all the time if what the state is 2 suggesting is true. Even beyond that, in 3 order for the state's theory to work, you 4 would have to have PCBs entering the air 5 space as a vapor and, again, the air space is 6 roughly the same temperature as what's in the 7 ductboard, so the temperature is not really 8 changing, it is room temperature, deciding to 9 condense on a desk or floor or partition and 10 then on its own deciding to evaporate again 11 and go back, move around this air space 12 again, without the temperature changing to 13 any great extent. It would not be 14 evaporating and condensing, evaporating and 15 condensing. This just makes no sense. It 16 couldn't happen this way. 17 Q. Now, you have testified that you 18 studied, published, and lectured on the 19 physical and chemical properties of PCBs? 20 A. Yes, sir. 21 Q. Based upon that background, sir, 22 why would a PCB molecule, once it decides to 23 condense, then all of a sudden decide to 24 volatilize at the same temperature? 119 1 Q. And by condensing or 2 condensation you mean what? 3 A Condensing is turning into a 4 liquid or solid from a gas. It is the 5 opposite of vaporization, so in order for 6 that to happen, you have to already be in a 7 vapor and you have to get cool enough to make 8 it a liquid or solid again. And this just 9 isn't going to happen. 10 Q. Your Honor, this is step six, DM 11 3123 G. 12 What is the next step in the 13 unlikely story? 14 A Well, the next step in the 15 theory is that essentially this PCB enters 16 the occupied work space, moves around through 17 the occupied work space and somehow escapes 18 detection. As I discussed before, for 19 two-and-a-half years while the building was 20 reoccupied and the ventilation system was 21 doing what it does, working just fine, there 22 were over 5,000 air tests, almost none of 23 which found any of this material, which makes 24 absolutely no sense. You would have expected 12 1 1 MR. MC CLAIN: I'm sorry, Your 2 Honor. The foundation, I know 3 specifically what articles -- if you want 4 me to come to side bar to make it 5 specific. I don't think there's enough 6 foundation on this subject that has been 7 made out. 8 THE COURT: Let's go to side 9 bar. 10 (Side bar discussion). 11 MR. MC CLAIN: His question 12 included that he has written on the 13 subject of volatilization of PCBs. I have 14 read all of his articles. I have never 15 seen it, so I would like to know where 16 that is. 17 MR. GOUTMAN: Maybe 18 Mr. McClain didn't hear my question. My 19 question was he's written, published, and 20 studied chemical and physical properties 21 of PCBs. That was all established. Now I 22 have asked him a question concerning the 23 chemical and physical properties of PCBs. 24 MR. MCCLAIN: Well, the ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60592 122 1 question is that he's written about this 2 subject and I don't believe that he has. 3 MR. GOUTMAN: Well, once 4 again, Your Honor -- 5 THE COURT: Well, then, I 6 think that might be best reserved for 7 Cross examination, and it may be that he 8 has not written on this particular topic 9 and you will, I'm sure, elicit it. 10 MR. MCCLAIN: Okay. Without 11 a foundation I thought the question was 12 objectionable, suggesting to the jury that 13 he has when there's no foundation that he 14 has. 15 MR. GOUTMAN: I just laid the 16 foundation. I said that he has written, 17 published, and studied the physical 18 chemical properties of PCBs. He said yes. 19 He said that yesterday, he said it today. 20 That's the foundation. 21 THE COURT: Overruled. 22 BY MR. GOUTMAN: 23 Q. I think my question was, sir, 24 you had testified earlier that you had 124 1 stayed about the same. 2 Q. Can you tell me whether the 3 state's theory assumes that this is going on, 4 this constant vaporization and volatilization 5 and condensation? 6 A. Absolutely. Absolutely. 7 Because in order -- it is kind of like snow 8 falling away. If the temperature stays the 9 same and this material is condensing as we 10 put it on to somebody's desk or computer, 11 what have you, it is going to accumulate. 12 The levels are actually going to go up like 13 we were saying before. The state's theory 14 depends on that happening, but in reality it 15 would condense if it was coming out of the 16 duct. We don't see data to support that. 17 It's not happening. 18 Q. You compared it to snow 19 accumulating on a desk. Based upon the test 20 results that you have analyzed, the thousands 21 of test results that you analyzed, was there 22 an ongoing accumulation of PCBs going on in 23 this building? 24 A. No, absolutely not. 123 1 written, studied, published over these last 2 20 odd years on the physical and chemical 3 properties of PCBs. Do you recall that 4 testimony? 5 A. Yes, sir. 6 Q. And my question was, sir, if 7 PCBs, for some reason, decided to volatilize, 8 and then even though at the same temperature 9 entered a work surface -- first of all, if it 10 is at the same temperature why would it then 11 condense on the work surface? 12 A. It wouldn't. The PCBs don't 13 make these decisions on their own; they are 14 either a vapor or a solid and it is going to 15 depend on what temperature you are at. The 16 temperature goes up it might be more inclined 17 to be a vapor, but room temperature it is 18 going to be a sticky resin. Essentially a 19 solid material. 20 Q. Now, if the PCBs then condense, 21 based upon what you know about the physical 22 and chemical properties of PCBs, why would 23 they then suddenly volatilize and evaporate? 24 A. They wouldn't if the temperature 125 1 Q. Where do the PCBs come from 2 then? 3 A. They were all deposited as a 4 direct result of the fire. 5 Q. Your Honor, the next exhibit is 6 DM 3123H, as in Harry. 7 Step seven of the government's 8 unlikely story, could you explain that? 9 A. Yes, step seven, as I call it 10 here, PCBs, they have been in the occupied 11 space where we showed that guide on his desk. 12 They decide at some point to travel up into 13 the air plenum, which is that space, you may 14 have heard about, it is between the ceiling 15 tiles and the fireproofing or the next floor. 16 Maybe a couple feet wide. PCBs travel up 17 into that air plenum along with the return 18 air supply, and then they condense at the 19 very moment they hit the asbestos. 20 Q. Can you orient us in terms of 21 what we are looking at here? 22 A. Yes, that might help you. This 23 is the first real complicated cut away we 24 have shown here. This is a cut away view of 4 T ESQUIRE DEPOSITION SERVICES 4 TOWOLDMONOQ60593 12 6 1 what it looks like above the ceiling tiles, 2 basically. It looks sideways at the round 3 duct. It has got this flexible duct that 4 connects it to the fluorescent light fixtures 5 on one side and that's how the air comes into 6 the room, and then it goes back out on the 7 other side and back into this space where it 8 gets sent back for heating or conditioning. 9 (Indicating) 10 This shows, these little arrows 11 show what would have to happen in order for 12 these PCBs to make their way out of this 13 office space, back up into the air plenum and 14 also we said, this is at the same temperature 15 as that room that you just saw, which is the 16 same temperature as that ductboard we were 17 talking about. The air hasn't really changed 18 temperature in this process, but somehow the 19 PCBs decide, in this particular place above 20 the air space, to condense again. To defy 21 gravity, to fly up against this fireproofing 22 and stay there, which makes no sense. It's 23 not going to happen. 24 Q. You have gone through seven 128 1 is essentially a solid resin-like material at 2 room temperature. It has almost no vapor 3 pressure. In this adhesive it is blended in, 4 it is cured, it is locked in a solid 5 material. It's not going anywhere. 6 Step two in the air tests, if it 7 were, in fact, coming out of the ductboard 8 and entering the work space where all of this 9 air sampling is being done, there were over 10 5,000 air tests taken over two-and-a-half 11 years. Those tests found almost no Aroclor 12 1262. And these are extremely sensitive 13 tests. If it were there it would have been 14 found. 15 Three, surface tests, PCB levels 16 on building surfaces were extremely low. As 17 we were just talking about, if PCBs were 18 coming out of the ductboard as we have 19 described and condensing in the office space 20 and accumulating, snowing, if you will, on 21 someone's desk, you would be seeing 22 measurable levels, and under number four you 23 would expect to see an increase in level. 24 You would keep going back. You would expect 127 129 1 steps now of the government's theory on this 1 to see the levels go up and up and up and up. 2 ductboard. I think you have called it 2 The same thing with air. The data shows 3 unlikely. If you take all of these unlikely 3 conclusively that the air levels were 4 steps together, what do you, as a PCB 4 declining during the year, two, 5 specialist, conclude or make of it? 5 two-and-a-half years after the fire, which 6 A. Well, it is more as an engineer 6 makes sense because it was put into the air 7 and part of it is common sense. If you 7 space by the fire. If the state's theory 8 string together what I have shown you to be 8 were true you would expect to see the air 9 six or seven steps that are almost 9 levels coming back up again and accumulating 10 impossible, I mean, the combination of all of 10 over time, and that's not the case at all. 11 those things happening is impossible. It 11 And, last, PCBs were still found 12 makes no sense at all. 12 in the ductboard. The ductboard worked just 13 Q. Now, sir, taking you back 13 fine. It was still rigid. The PCBs had not 14 briefly through this exhibit, could you 14 gone away as the state's theory would 15 briefly summarize again your reasoning behind 15 suggest; therefore, it just doesn't make any 16 your opinions and then, sir, tell us what 16 sense. i 17 your bottom line conclusion is. 17 Q. What is your conclusion? J 18 A. Sure. Again, the things that 18 A. My conclusion is that the 19 are flawed in the government's theory, number 19 government was wrong about the ductboard. 20 one, they are assuming that PCBs are 20 Q. And the title of this exhibit is 21 unstable, meaning that they are going to fly, 21 - 22 they are going to evaporate readily. What 22 A. The title is, "Why the 23 the physical chemical data on PCBs, 23 Government is Wrong About the Ductboard". 24 particularly Aroclor 1262 shows, is that it 24 Q. And does that summarize your ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60594 130 1 views on why the government is wrong about 2 the ductboard? 3 A. Yes, it does. Yes, it does. 4 Q. Now, sir, are you familiar with 5 a theory advanced by Mr. Kominsky during his 6 Cross examination concerning PCBs being 7 released during the fabrication of this 8 ductboard when the building was getting 9 built? 10 A. Yes, I am familiar with it. 11 Q. And could you just remind the 12 jury what that theory said? 13 A. Keeping in mind some of the 14 graphics I just showed you, what Mr. Kominsky 15 suggested in testimony was that some, if not 16 all, of the PCBs that enter the building 17 escaped from the adhesive, from the ductboard 18 we are talking about, during the period when 19 the duct was being made in the building, when 20 it was being folded up, the tape was being 21 applied, and an iron was being applied to 22 that tape. Run over the tape I think is what 23 the instruction says. That is the essence of 24 the theory that it elevated the temperature 132 1 product does and how it is used. It might be 2 used for sales literature, for example. 3 Q. And was this for the ductboard 4 in question, ductboard in this case? 5 A. Yes, it was. 6 Q. And these documents are from 7 CertainTeed? 8 A. Yes, they are. 9 Q. And were they the manufacturer 10 of the ductboard in the T&S Building? 11 A. Yes, they were. 12 Q. And what else is in this package 13 of documents? 14 A. There's also an instruction, a 15 document entitled, "Fabrication Instructions 16 for Rectangular Duct", and that provides a 17 little additional detail on top of the other 18 literature that I mentioned earlier. 19 Q. Sir, in your detective work in 20 trying to find sources of PCBs do you ever 21 rely upon the literature of the manufacturer 22 of building components? 23 A. Absolutely, yes. 24 Q. And are you doing so in this 131 1 of the adhesive, somehow PCBs elected at that 2 point in time to escape the adhesive, enter 3 the building, and stay there. 4 Q. Now, I would like to hand you a 5 set of exhibits. 6 Your Honor, for the record, we 7 have handed the witness a number of exhibits. 8 They are marked consecutively DCT 11, DCT 9 49 -- actually, they are not consecutive, 10 they are not in series. DCT 11, DCT 49, DCT 11 38, DCT 32, DCT 88, DCT 95. They are all 12 DCT, so I won't keep on saying DCT. 103, 13 113, 23,137, 20, and 104. 14 Now, Mr. Woodyard, could you 15 tell the jury, because the jury obviously 16 doesn't have these documents in front of 17 them, what this set of documents consists of? 18 A. Well, the set of documents that 19 you are talking about includes, first of all, 20 instructions. It is kind of a pamphlet that 21 could come with the ductboard explaining how 22 it is fabricated. It includes some cartoons 23 and some additional background information 24 sort of as a brochure that explains what the 133 1 case? 2 A. Yes, I am. 3 Q. Sir, based upon the documents, 4 CertainTeed's manufacturing documents, tests, 5 and so forth, together with your background 6 in the physical and chemical properties of 7 PCBs, have you been able to form an opinion 8 concerning Mr. Kominsky's theory? 9 A. I have. I disagree with it. 10 Q. And could you tell the jury why? 11 A. Well, in essence, it is the same 12 reason I just outlined to you for room 13 temperature except now we are perhaps heating 14 the glue to 250 degrees during that brief 15 period during fabrication. Still, if you 16 heat the glue to 250 degrees nothing is going 17 to happen. 18 Q. How do you know that? 19 A. Well, as I mentioned before, the 20 fabrication process for the ductboard. 21 Q. What do you mean by fabrication 22 process? 23 A. How they make the duct. The way 24 they make it includes not only putting the i i i i 1 4 j ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60595 1 fiberglass and the glue and the foil 134 136 1 substandard duct. It would have failed the 2 together, it includes heating it to 20 or 400 2 performance test. 3 degrees. 3 Q. Why? 4 Q. Is this back at the factory? 4 A. Because it had no PCBs left in 5 A. Back at the factory. 5 the glue. The glue had deteriorated, and the 6 Q. Before it is ever shipped to 6 duct would have fallen apart. J 7 Harrisburg? 8 A, Absolutely. 7 Q. If the PCBs had left the glue 8 what would have happened to the glue back at 9 Q. And why are they heating it to 9 the plant? *! 10 200 to 400 degrees? 11 A. To cure the glue, to dry it out. 10 A. Well, the glue is the 11 plasticizer, so it would become rigid, 12 Q. And what, if any, significant 12 brittle. 13 conclusions did you draw from that, from the 13 Q. Sir, even if one assumed that 14 manufacturer's literature that says that to 14 Mr. Kominsky was right and running this 15 cure this stuff you are heating it from 200 15 heating iron across an edge - by the way, 16 to 400 degrees? 16 how wide is the tape? 17 MR. MCCLAIN: Objection, Your 17 A. The tape is two inches wide. 18 Honor. It is leading. 18 Q. Two inches wide, and it is being 19 MR. GOUTMAN: I'm asking what 19 run along how many comers of this duct? 20 conclusions he drew. 20 A. Just the one comer. For about 21 THE COURT: Overruled. 21 ten feet for each piece of ductboard. 22 THE WITNESS: What I concluded 22 Q. Even if one were to assume that 23 is that heating this duct to 250 degrees 23 running a heating iron across this two inch 24 even for that brief period of time with 24 piece of tape caused some PCBs to leave that 135 1 that heating iron in that little strip 2 would not affect the duct at all. The 3 manufacturing process showed that. It 4 showed through manufacturing and testing, 5 which we didn't talk about in the lab, 6 that heating the duct to temperatures that 7 high or higher, the duct loses none of its 8 integrity. It loses none of its PCB. 9 BY MR. GOUTMAN: 10 Q. Well, if heating it to 250 11 degrees at the site while you are fabricating 12 this ductboard drove off the PCBs, what would 13 you have found back at the factory when you 14 were heating it up to 400 degrees? 15 MR. MCCLAIN: Objection, Your 16 Honor. 17 MR. GOUTMAN: Just following 18 up, Your Honor. 19 THE COURT: Overruled. 20 BY MR. GOUTMAN: 21 Q. What would you have found of the 22 glue, when they were heating it up to 400 23 degrees back at the factory? 24 A. You would have found a bunch of 137 1 glue, what would happen to those PCBs once 2 they left that glue? 3 A. The fiberglass insulation that 4 is right next to the glue is at or close to 5 room temperature, so it is immediately going 6 to run into a barrier that is cool, it is 7 going to condense immediately, just like we 8 were illustrating before in those series of 9 slides. 10 Q. Again, sir, referring to DM 3123 11 B, which I will approach the witness, Your 12 Honor, the step number one -- 13 MR. HENDERSON: Which one is 14 that? 15 MR. GOUTMAN: Step number one. 16 BY MR. GOUTMAN: 17 Q. What would happen if you are 18 running that iron on this outer edge? Even 19 if you got some molecules of PCBs to leave 20 this glue, what would happen to those 21 molecules? 22 A. The molecules would try to enter 23 the fiberglass and immediately, because the 24 fiberglass is much cooler, they would ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60596 138 1 immediately condense out as sticky resin 2 particles like we talked about before and 3 stay right where they are. 4 Q. Would they march their way 5 through the thickness of this dense 6 fiberglass? 7 A. No. 8 Q. Would they march their way 9 through the thickness of this dense 10 fiberglass and then volatilize? 11 MR. MC CLAIN: Your Honor, this 12 is leading. 13 MR. GOUTMAN: I'm asking if they 14 would. 15 MR. MCCLAIN: It is leading. 16 Would they march through this fiberglass 17 is leading. 18 THE COURT: It doesn't suggest 19 the answer. Overruled. 20 BY MR. GOUTMAN: 21 Q. Could you tell us whether they 22 would march themselves through this 23 fiberglass and then fly off the surface 24 volatilizing? 140 1 physical, but I don't know what I can do 2 as we go along for the rest of the next 3 week in accommodating her. Of course, she 4 is enjoying coming in. She enjoys the 5 attention. I'm sure. 6 MR. MCCLAIN: What is the 7 Court's, I think that The Court is wise in 8 trying to keep her. She doesn't appear to 9 be having any discomfort sitting; it is 10 all in the question of getting her here, 11 and in light of that I'm reluctant to 12 suggest that we let her go just because we 13 might lose someone that we can't afford to 14 lose. 15 THE COURT: I don't want to 16 let her go. With this 15, they have such 17 a camaraderie that it would have really an 18 effect on each of them if we lose anymore 19 of them, especially for a situation like 20 that. And I don't want to lose any of 21 them right now. 22 MR. MC CLAIN: We are in flu -23 season. You never know. We might lose 24 somebody for a week and have to let them > . J i > 139 1 A. No, they would still be right at 2 the glue and fiberglass interface. 3 Q. In your opinion, sir, did you 4 reach any conclusions, based upon your 20 odd 5 years as a PCB specialist, as to whether the 6 fabrication process, when this ductboard was 7 being formed back in the middle sixties when 8 the building was being built, whether that 9 contributed PCBs to the environment in that 10 building? 11 A. No, it did not. 12 MR. GOUTMAN: This might be a 13 good time to take our afternoon break, 14 Your Honor. 15 THE COURT: We will take a 16 brief recess. 17 MR. EDGE: We will take a 18 short recess. 19 (Court recessed). 20 THE COURT: Mary Childs, I 21 think it is, we have gotten her 22 accommodated for these two days, yesterday 23 and today. Monday we are not having court 24 because of the other chap who needs a 141 1 go. That would be unfortunate, but -- 2 THE COURT: I was hoping, I 3 watched the weather carefully, but they 4 said 37 on Sunday. Snow, 37. That is an 5 oxymoron, snow and 37. And Monday was 6 supposed to be 40 with rain. Now, if 7 that's the case by Tuesday it should be 8 fairly decent. I was thinking of asking 9 her if she will let us know, if the 10 weather breaks, will she be able to come 11 in. So I want to call her in and do that. 12 I don't know that I want to bring her in 13 in front of everyone. 14 MR. MC CLAIN: I think you can 15 do it individually. 16 MR. NEAL: Judge, what is your 17 intention with regard to subsequent 18 Mondays? Are we still going on the four 19 day? 20 THE COURT: I'm going to leave 21 it to you guys. I could go to a five day 22 week if you want to go to a five day week. 23 I think it is stressful to go to a five 24 day week. I'm serious about that. J ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60597 142 1 Because this isn't a two or three week 2 trial. In February we have one three day 3 holiday with President's Day, so that 4 would be out, so I think the four day week 5 is good, but I'm not going to impose my -- 6 I'm not imposing it as an order. 7 MR. MCCLAIN: Your Honor, I 8 have been thinking about how we are 9 proceeding, and the way that I analyze 10 this, there's one other long witness as I 11 see it that still has to go on, and that's 12 maybe Dr. Erickson. 13 Am I wrong about that, Tom? 14 Is that your next, after this witness, 15 he's the last. The rest of them are 16 shorter witnesses, aren't they? 17 MR. GOUTMAN: We have our 18 epidemiologist, Dr. Lamm. 19 MR. MC CLAIN: Will you be 20 calling him, too, and Cohen? 21 MR. GOUTMAN: We have a few to 22 go23 MR. MC CLAIN: Well, maybe we 24 have to. I had set aside Sunday nights to 144 1 respect to that issue. 2 THE COURT: Well, at a given 3 point I think I'm going to go talk with 4 them with your permission. 5 MR. GOUTMAN: Sure. 6 MR. MCCLAIN: That's fine 7 with me. 8 MR. GOUTMAN: My inclination 9 now is to keep it at four days at least 10 through February, but I would like to give 11 it some thought. We can communicate our 12 views to The Court. 13 THE COURT: At this point 14 everybody is kind of wondering what is 15 happening. I told them we are running a 16 restaurant, but we will check on those two 17 things and I will talk to Mary Childs. 18 MR. MCCLAIN: Doing that in 19 actuality is no picnic. It is much like 20 this, actually. 21 THE COURT: For other people 22 to understand, and it is very difficult 23 for other people to understand unless they 24 are actually here. 143 1 coach my AAU basketball team so I was -- 2 Mondays coming back would help. I will 3 give that up, however, if it is looking 4 like we are not going to be finished. I 5 was thinking that we are going to move 6 quicker after we get done with this 7 witness, but maybe we are not, so maybe we 8 do need to go five days to get done. 9 MS. MEYERS: Your Honor, what 10 about the jury? The last time they voted 11 they voted to keep their Monday. 12 MS. MEYERS: 13 to two, I 13 believe. 14 MS. HERSCHEL: Obviously they 15 schedule things like doctor's 16 appointments, etc. 17 THE COURT: The problem is 18 that they don't have -- they got a 19 full-time job is what they have with this 20 case, and that doesn't give them time to 21 do all of the things that retired persons 22 do. 23 MS. HERSCHEL: I think we 24 ought to do what the jury wants to do with 145 1 MR. MC CLAIN: Yes, that's 2 true. 3 THE COURT: And that goes for 4 your respective partners. I'm not 5 minimizing the toll that that takes. 6 MR. NEAL: They don't remember 7 me anymore anyway. 8 MR. MCCLAIN: They didn't 9 before you left. 10 THE COURT: The time to worry 11 is if they ask where to forward the mail. 12 MR. NEAL: The mail keeps 13 coming home. 14 MR. MC CLAIN: You remember 15 what happened to the last guy they 16 stationed here. 17 THE COURT: We don't have a 18 good track record from Connecticut. 19 MR. GOUTMAN: You are going to 20 talk to Ms. Childs now? 21 THE COURT: I'm going to talk 22 to her right now. 23 MR. MCCLAIN: CouldI just 24 tell the Judge something by myself just ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60598 146 1 before we leave? 2 MR. GOUTMAN: After you are 3 done I have a personal thing I want to 4 bring up with the Judge. 5 (Off the record discussion). 6 THE COURT: We spoke with Mary 7 Childs. She is getting a ride home and 8 she understands that next week she will be 9 navigating on her own all things being 10 equal. I think we are in a good position 11 there. The jurors are in a good mood. 12 They would like this case to come to an 13 end some day, but I'm proud of the fact 14 that they have all stuck with us. 15 As far as the four days a 16 week, to a person that wanted four days a 17 week, because they said they need one day 18 to do things that they otherwise can't do. 19 The only problem we have is with one juror 20 who in the first full week of February may 21 require Monday and Friday, I think it was, 22 Frank. 23 MR. EDGE: I believe it was 24 the 14th -- 148 1 you would be directed to deliberate, and 2 then one wanted to know if that's when 3 they get lunch. 4 MR. MCCLAIN: After all this 5 time they only want lunch? 6 THE COURT: I think they are 7 entitled to breakfast, lunch, and dinner, 8 but that's another story, but, in any 9 event, those are the questions that we had 10 talked about in talking with the jury. We 11 got the answers and I think they are 12 reasonable answers. And if there's any 13 questions I will take them now; otherwise, 14 we will bring the jury in. We would like 15 a convenient adjournment time. 16 MR. GOUTMAN: Sure. I think I 17 have, when I conclude this area, it will 18 take about ten minutes or so, maybe 15, 19 and that would bring us up to the 20 bewitching hour. 21 THE COURT: Very good. 22 Bring the jury in. 23 MR. EDGE: You may be seated. 24 This Court is in session. V -J' )\ \ 147 1 THE COURT: Monday and Friday. 2 MR. MCCLAIN: That's next 3 week? 4 THE COURT: That would be the 5 seventh and the 11th, and another juror 6 has reservations for a trip, I think it is 7 to the Holy land, in May. 8 MR. MC CLAIN: That's correct. 9 May 22nd,I believe. 10 THE COURT: And she is going. 11 If the rest of you want to go with her she 12 will talk to you on the boat or the plane 13 or however she's going, but whatever, but 14 otherwise I think we are in good shape. I 15 think that with this kind of support we 16 could get this thing wrapped up. They 17 wanted to know who deliberates and we told 18 them. It will be 12, but we are not 19 talking about who the 12 are at this 20 point. We are not going into that 21 conclusion. The lawyers will wrap up the 22 case by arguing and explaining their sides 23 to you, which will be a refresher course, 24 The Court will give you the law, and then 149 1 MR. GOUTMAN: May I proceed, 2 Your Honor? 3 THE COURT: Yes. 4 BY MR. GOUTMAN: 5 Q. I think where we left off, 6 Mr. Woodyard, why the government is wrong 7 about the ductboard and you summarized it as 8 an unlikely story. 9 Mr. Woodyard, what explanation 10 to you makes scientific sense as to how PCBs 11 came to be deposited on the surfaces of the 12 T&S Building? 13 A. Well, sometimes the 14 Q. Keep your voice up, please. 15 A. I will. Often the most obvious, 16 simplest answer is the truth, and having gone 17 through all of this I quickly came to the 18 conclusion that there was a much easier 19 explanation for all of this. 20 Q. And that explanation, sir, is 21 what? 22 A Is that the PCBs in the T&S 23 Building were deposited as a result of the 24 fire. * ESQUIRE DEPOSITION SERVICES TOWOLDMONOQ60599 150 1 THE COURT: I sorry. I couldn't 2 hear. 3 THE WITNESS: ThePCBsinthe 4 T&S Building were deposited as a direct 5 result of the fire. 6 BY MR. GOUTMAN: 7 Q. Now, I would like to show you, 8 again, Exhibit 3123 B, the cross section of 9 the ductboard. What happens to the PCBs in 10 this glue when this ductboard on the sixth 11 floor gets hit by those flames in the, as you 12 called it, catastrophic fire? 13 A. The temperature of the fire that 14 would have contacted that ductboard is in 15 excess of 1,000 degrees. It would be 16 incinerated. It would just be evaporated, 17 redistributed with the smoke throughout the 18 building. 19 Q. What would be? 20 A. Well, in some cases everything, 21 but certainly the adhesive. 22 Q. The adhesive meaning what? 23 A. The glue that contains the PCB. 24 Q. Now, sir, have you prepared an 152 1 PCBs were released. 2 Q. And what did that smoke contain? 3 A. That smoke contained both PCBs 4 from the ductboard and from the light 5 fixtures. 6 Q. Number three. 7 A. The third point, after the fire 8 those same PCBs, meaning the PCBs that were 9 binned from those building products -- 10 Q. The 1262 and the 1242? 11 A. Correct, those same PCBs were 12 found throughout the building. They were 13 found in every floor, just about every sample 14 that was taken in the building. 15 Number four, asbestos 16 fireproofing after the fire had over five 17 times the amount of PCBs as before the fire. 18 Remember that bar chart I showed you a while 19 ago that showed that real low background 20 level and then Mr. Kominsky's results that 21 showed that the average level was at least 22 five times higher after the fire? 23 Q. What did you conclude from that? 24 A. Clearly the PCBs, most of the 151 1 exhibit that summarizes the conclusions you 153 1 PCBs in that building were deposited as a 2 reached in determining that the source of the 2 direct result of the fire. 3 PCBs on the surfaces in the building was the 3 Q. And what was the other source if 4 fire? 4 most of it was deposited from the fire? 5 A. Yes, I did. 5 A. Most of it was, as the data 6 Q. And, Your Honor, this is DM 6 showed, there was some there prior to the 7 3151, and this will be our last exhibit for 7 fire. There was a small amount that would be 8 today. 8 attributed to background. 9 Could you please take us through 9 Q. Number five. 10 this exhibit. 10 A. Number five, Aroclor 1260 was 11 A. Sure. This exhibit I entitled, 11 found primarily on the outer layer of the 12 "How we Know PCBs in the T&S Building came 12 asbestos fireproofing. I emphasize outer 13 from the Fire". 13 layer in this diagram. s 14 First, again, these are facts. 14 Q. And what does that tell you as a 15 Number one, the building products containing 15 scientist and PCB specialist? 16 PCB, the ductboard containing the 1262, and 16 A. That the PCBs were deposited 17 the light fixtures containing the 1242 we 17 from the fire. They were deposited recently ] 18 were hearing about, were burned, incinerated 18 from soot or smoke or what have you. It 19 in the fire. 19 makes perfect sense. 20 Number two, the fire spread 20 Q. And, finally, number six. 21 smoke throughout the building. You see 21 A. Number six, other explanations 22 videos of that. You know it happened. Every 22 that the state has offered up are all 23 floor was contacted with smoke as a result of 23 contradicted by the test data. I think I 24 the fire that occurred in that area where the 24 showed you the slide before with all of the ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O6OO 154 1 air tests, the lack of increase in surface 2 and air levels. None of those things 3 happened. 4 Q. Specifically what test data are 5 you referring to? 6 A. The over 5,000 air tests that 7 showed virtually no 1260 or 1262. 8 Q. I think you mentioned that 4,000 9 of those occurred in 1994? 10 A. 1994, the six months immediately 11 after the fire. 12 Q. And in 1995 and 1996 that would 13 have been the other 1,000? 14 A. That's correct. And those are 15 all essentially zero or non detect as we call 16 it. Detection, keep in mind, I keep saying 17 zero or no; what I mean is below detection 18 which in most cases here is about half a 19 microgram per cubic meter. 20 Q. Do you mean to say that in 1995 21 and 1996 there were no detects? 22 A. There were no detectable air 23 results at all above a half microgram per 24 centimeter squared. 156 1 that the state is suggesting is contradicted 2 by the facts and the data as I pointed out 3 down here. (Indicating). 4 Q. And your conclusion as to where 5 the PCBs came from -- 6 A. Clearly they came from the 7 incineration of building products containing 8 PCBs during the fire. 9 MR. GOUTMAN: This might be a 10 good time to break, Your Honor. 11 THE COURT: Members of the 12 jury, we are now going to adjourn for the 13 day. In keeping with our practice, we 14 will resume trial on Tuesday, February 15 first and we wish you well Monday. Have a 16 good day. 17 MR. EDGE: This Court now 18 stands in adjournment until 9:30 a.m. 19 Tuesday morning. Everyone remain seated 20 until the jury leaves the room. 21 Okay, jurors. 22 (Witness excused.) 23 (Deposition concluded 24 at 3:50 p.m.) i '? s 155 1 Q. Above one half microgram. In 2 your opinion is one half microgram 3 background? Above background? Below 4 background? What is one half microgram? 5 A. It is the detection limit for 6 the method that we are using. 7 Q. What is it in relation to 8 background? 9 A. I don't really know for air 10 samples what it would be. 11 Q. So when you say the other 12 explanations are contradicted by the test 13 data, you are referring to the air tests -- 14 A. Primarily two through four. The 15 air tests are showing virtually no PCB and 16 the air samples for those two-and-a-half 17 years. The surface tests aren't showing this 18 snowing accumulating, this PCB that would 19 have to be accumulating if the state's theory 20 were true, and the fourth point, there's no 21 increase in either the surface levels or air 22 levels once the ventilation system is turned 23 back on and this material is supposedly 24 flying out of the ductboard, so this theory 1 -- 2 CERTIFICATE 157 3 4 I hereby certify that the witness 5 was duly sworn by me and that the deposition 6 is a true record of the testimony given by 7 the witness. 8 9 10 11 12 13 John W. Begley, RPR 14 Dated: January 30, 2000 15 16 (The foregoing certification of this 17 transcript does not apply to any reproduction 18 of the same by any means, unless under the 19 direct control and/or supervision of the 20 certifying shorthand reporter.) 21 22 23 24 i ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O6OI i 1 LAWYER'S NOTES 158 2 PAGE LINE 3 _______________________ 4 _______________________ 5 ______________________ 6 ___________________ 7 ______________________ 8 ___________________ 9 ______________________ 10 ___________________ 11 12 13 ______________________ 14 ______________________ 15 ______________________ 16 ______________________ 17 ______________________ 18 ______________________ 19 ______________________ 20 ___________________ 21 22 23 ______________________ 24 ______________________ ESQUIRE DEPOSITION SERVICES TOWOLDMON0060602 159 A 119:24 124:6 AAU 143:1 124:6,24 abatement 7:7 132:23 134:8 79:10 accept 42:12 able 8:21 9:6 79:6 10:19 87:3 accommodated 110:10 111:18 139:22 111:20 133:7 accommodating 141:10 140:3 about 8:12 accord 27:1 10:20 16:18 accordance 16:24 17:5 26:23 21:21 22:24 according 26:1 23:18 24:23 26:2 38:5 94:7 27:7,8 28:11 97:8 29:22,24 30:9 accumulate 30:23 32:8 124:11 34:13,19,20 accumulating 35:21,23 124:19 128:20 36:20 37:2 129:9 155:18 38:11,17,24 155:19 39:8 40:20 accumulation 41:13 44:9 124:22 51:2 52:19 accurate 24:9 53:24 56:15 113:18 60:3,3,5 64:12 across 136:15 66:18 67:4 136:23 69:18,20 70:3 action 49:6,7 70:9 71:2 96:8 97:19 72:13 74:6 actuality 76:12,13 77:5 144:19 78:5 79:20 actually 8:17 80:5 86:3,11 18:9 95:11 86:17 87:5 97:19,22 88:24 89:1,18 124:12 131:9 92:12 94:4,9 144:20,24 97:15 99:11 add 55:7 102:22 103:14 addition 74:20 103:15 105:7 additional 45:8 105:14,16 131:23 132:17 110:9 112:11 additive 99:21 114:21115:9 adherence 115:10 122:1 109:22 123:21124:1 adhesive 92:3 125:14 126:17 98:21 99:21 128:17 129:19 101:11104:6 129:23 130:1 105:2 128:3 130:18 131:19 130:17 131:1 135:5 136:20 131:2 150:21 138:2 141:24 150:22 142:8,13 adjourn 156:12 143:10 147:19 adjournment 148:10,18 148:15 156:18 149:7 151:18 admissible 54:9 152:13 154:18 admitted 53:18 above 8:21 9:1 admonished 78:9 79:2 33:4 116:24 126:1 admonishing 126:19 154:23 28:18 41:24 155:1,3 admonishment above-captioned 29:9 1:13 admonition absent 56:20 55:5 absolutely adopted 36:6 12:15 14:16 36:14 40:12 24:9 43:10 ADVANCE 1:9 46:22,22 advanced 73:20 71:19 101:23 130:5 advise 42:12 advocacy 23:8 advocate 25:9 aerospace 1:7 2:24 affect 135:2 afford 140:13 after 10:21 12:22 14:17 36:24 60:24 63:12 67:24 68:3 72:14 75:12,15 79:23 93:14 94:11 96:14 96:22,22 97:23 98:4 99:9 129:5 142:14 143:6 146:2 148:4 152:7,16,22 154:11 afternoon 87:16,17 88:15 139:13 again 24:11 58:22 65:18 67:4 72:19 75:14,21 76:13 77:18 79:21 85:20 95:9 96:15 103:13 104:22 108:23 110:13 110:18 111:6 111:10116:14 116:21119:8 120:5,10,12 122:4 126:20 127:15,18 129:9 137:10 150:8 151:14 against 76:20 126:21 agencies 36:13 AGENCY 1:4 ago 66:14 84:12 84:12,13 152:19 agree 89:19 agreement 26:23 ahead 116:7 air 9:14 10:22 32:13 35:12 69:18 82:14 82:20 83:10 84:8,10 86:7 93:9,17,18,21 93:24 94:2,6,9 94:13,17,21 94:23 95:3,4,8 95:19 97:14 97:15,24 98:2 98:9,10 115:10,11,14 115:15,20 118:8,10,13 118:14,16 119:22 120:4 120:5,11 125:13,17,18 126:5,13,17 126:20 128:6 128:9,10 129:2,3,6,8 154:1,2,6,22 155:9,13,15 155:16,21 airport 67:21 Albany 32:8 allow 30:17 allowed 29:16 allowing 105:4 alluded 56:23 almost 10:23 15:21 68:13 75:14 91:24 92:10 94:13 95:10,15 105:10 119:22 127:9 128:2 128:11 alone 16:8 94:10 along 25:17 54:22 83:8 125:17 136:19 140:2 already 13:17 44:13 67:10 91:22 119:6 alternative 42:10 although 36:9 aluminum 92:6 104:4,7 always 56:12 94:21 98:8 AMERICA 1:8 amount 152:17 153:7 amounts 23:15 analysis 67:1 68:1 analyze 142:9 analyzed 63:12 66:21,23 70:1 73:1 124:20 124:21 analyzing 19:23 and/or 157:19 angry 21:20 another 11:20 13:14 23:3 25:10 27:19 82:21 87:4 107:2 112:10 115:22 147:5 148:8 answer 52:13 59:6 81:7 84:20,22 85:1 85:2,20,21 106:18 138:19 149:16 answers 49:19 51:17 148:11 148:12 areas 91:13 anticipated aren't 142:16 40:2 155:17 anymore 26:24 arguing 147:22 140:18 145:7 argument anyone 57:17 33:19 96:7 argumentative anything 17:13 90:19 100:12 23:22 35:21 Aroclor 75:23 47:6 53:13 76:10,24 80:4 58:20 77:15 80:9,10,16 77:17 86:3 91:21,22 112:4,24 92:10 93:2 anyway 145:7 94:24 95:4,12 anywhere 40:4 95:16 98:2 92:9 117:23 127:24 128:11 128:5 153:10 apart 98:24 Aroclors 80:7 99:12 136:6 80:15 apparently around 9:2 24:13 26:1,11 15:15 63:2 28:14 40:18 75:2 83:20 appeal 88:13 84:8,10 86:6 appear 140:8 111:19 118:16 APPEARANC... 118:17 119:16 2:1 120:11 appeared 47:3 arrows 118:10 appears 47:1 126:10 appellate 54:4 art 15:10 applicable articles 121:3 20:21 50:17 121:14 56:4,7 asbestos 7:7 application 63:11 65:12 17:6 65:19 66:8 applied 12:7 68:20 71:3 22:20 23:2 72:9,23 75:13 37:4 57:6 76:15 78:22 104:6 130:21 79:8,10,13,22 130:21 80:7 88:17 applies 22:14 125:19 152:15 27:11,19 31:1 153:12 40:8 70:7 aside 142:24 apply 11:23 asked 61:8 12:2,14 40:21 107:16 111:14 41:6 70:12 121:22 157:17 asking 60:3 appointments 134:19 138:13 143:16 141:8 appreciate 55:5 aspect 81:24 approach 21:5 aspects 35:14 37:1 46:7 49:4 assessment 64:7 81:2 13:5 14:6,8,14 137:11 57:5,15,16 approached 58:7 59:19 44:9 assessments appropriate 56:24 59:12 17:24 21:9 assist 68:23 29:9 39:17 assisted 63:24 55:1 assume 114:17 appropriately 136:22 54:9 assumed area 12:19 136:13 17:18 18:1 assumes 124:3 36:20 51:12 assuming 62:15 67:16 127:20 68:18,21 Atlanta 38:15 73:11 74:23 atmosphere 75:6 79:1 42:4 52:18 148:17 151:24 attach 92:5 r % ESQUIRE DEPOSITION SERVICES TOWOLDMON0060603 160 attached 104:9 attempt 44:11 47:2,6 attention 39:1 42:7 113:10 140:5 attentive 54:22 attorney 53:23 54:7,10 attorneys 54:12 55:9 111:17 attributed 153:8 audible 110:8 authority 40:16 authorized 111:19 automatically 112:8 avail 44:20 avenue 26:21 average 7:20 12:22 13:2 59:15 67:2 68:5 72:14 73:3,5 79:21 152:21 avoid 43:15 49:13 away 8:16 52:15 78:15 103:21118:9 124:8 125:23 125:24 129:14 axis 65:24 66:1 a.m 1:17 156:18 B B 2:3 103:5,6,9 137:11150:8 back 9:23 19:18 25:18 32:3 34:23 45:6 49:16,19 50:23 53:1,5 55:24 56:2 59:10 60:18 64:18 66:13 69:9 84:24 85:3,22 88:16 88:23 90:13 91:15 92:8 93:10 96:15 99:15 100:15 100:17 120:11 126:6,7,8,13 127:13 128:24 129:9 134:4,5 135:13,23 136:8 139:7 143:2 155:23 background 18:3 22:17 67:9,13,13,14 67:14,17,18 67:19 68:18 71:23 72:12 73:10,17 74:23 75:5 80:22 81:12 81:21 82:1,1 83:11,13,18 83:22 84:8,10 84:13,15 85:13 86:2,3,6 86:12 120:21 131:23 133:5 152:19 153:8 155:3,3,4,8 backs 51:16 bad 46:11 bags 58:19 ballast 62:10 ballasts 62:9 75:22 bar 21:5,6 22:4 29:1 46:19 49:4 67:24 81:2,4 87:23 106:22,24 110:4 121:4,9 121:10 152:18 barrier 137:6 bars 49:11 66:12 72:16 based 12:21 14:11 31:18 57:4 59:11 61:2,14 96:12 102:8 106:12 106:20 107:6 120:21 123:21 124:19 133:3 139:4 basic 53:6 basically 67:22 92:7 126:2 basis 32:12 107:8,23 109:9,10 basketball 143:1 bathroom 88:6 became 35:13 become 16:23 136:11 before 1:11,17 8:2,6 16:1 22:8 26:14 27:15 32:15 33:4 34:24 35:8 52:15 56:23 63:11 63:19 66:16 66:18 67:6,11 68:8 69:19 70:24 72:16 73:14 74:21 75:10 77:22 87:23 91:7 93:19 105:6 110:2 116:5 118:15 119:18 124:13 133:19 134:6 137:8 138:2 145:9 146:1152:17 153:24 beginning 52:5 Begley 1:18 157:13 behalf 57:17 behind 8:20 37:16 127:15 being 1:20 36:9 37:245:8 46:8 78:1,2 80:17 82:7,13,24 85:18 94:19 96:16 116:19 128:9 130:6 130:19,20,20 130:21 136:18 139:7,8 146:9 belief 41:7 48:18 belies 41:10 believe 7:2 15:24 22:22 23:6 24:11,23 27:10 29:8,11 30:6 34:18 35:2,15 41:5 41:19 45:12 47:4 48:20 49:1 66:23 76:17 80:4 83:18 104:18 106:15 110:17 122:2 143:13 146:23 147:9 believed 47:22 believes 37:4,12 40:7 44:1 47:21 below 11:3 13:3 52:6 59:16,20 79:3 96:6 97:19 117:2 154:17 155:3 bench 65:15 bend 99:23 best 19:12 97:13 122:6 better 23:16 34:2 between 105:13 109:22 125:14 bewitching 148:20 beyond 23:8 33:18 54:11 54:16 120:2 Binghamton 32:8 Biphenyls 39:2 bit 98:4 blended 105:16 128:3 blown 8:7 board 102:15 boat 147:12 bold 35:24 bond 103:20 104:23 105:18 106:2 bonding 109:3 both 22:18 55:9 152:3 bottom 127:17 BOULEVARD 1:22 box 110:6 111:9,14,20 112:17 boxes 9:22 10:1 Boy 30:7 break 52:16,19 88:11103:19 104:23 139:13 156:10 breakfast 148:7 breaking 106:1 breaks 116:16 141:10 brief 133:14 134:24 139:16 briefly 127:14 127:15 bring 108:15 141:12 146:4 148:14,19,22 bringing 42:6 brittle 136:12 Broad 2:20 brochure 131:24 brought 35:19 113:9 building 8:6 9:15 10:21,24 11:2 12:14,23 14:12,13 20:11,14,22 40:15 50:5,9 50:18 56:4,8 56:17 58:10 58:17,23 59:16 60:24 61:17,19 62:2 62:4,19,22 63:2,6,11 66:16 67:11 67:24 68:5,14 71:11 72:19 72:19 73:5,14 73:22 74:21 75:1,2,4,8,15 76:21 78:3,23 79:3 80:2,18 80:20 82:19 85:17 86:1 89:3 90:17 93:15,18 95:23 96:11 96:13,19 97:11 99:3 101:10 109:16 117:16 119:19 124:23 128:16 130:8,16,19 131:3 132:10 132:22 139:8 139:10 149:12 149:23 150:4 150:18 151:3 151:12,15,21 152:9,12,14 153:1 156:7 buildings 22:20 68:20 71:4,5,6 71:9 73:2,9 83:20 built 130:9 139:8 bulk 69:22 70:4 70:16,22 bulletin 24:6 28:7 32:9 37:19 Bulletins 38:12 bunch 69:23 135:24 burdened 25:5 burned 16:5,9 58:14,21 59:2 61:2062:1,6 62:14 75:17 77:1,23 151:18 152:9 burning 58:13 C c 89:13 114:8 157:2,2 call 11:9 17:8 19:10 27:20 27:23 31:3 69:21 116:20 125:9 141:11 154:15 called 14:20 15:23 28:12 29:12 31:22 33:13,16 35:13 36:3 37:17 47:14 67:24 117:10 127:2 150:12 calling 8:15 16:22 18:8 142:20 calls 29:14,16 camaraderie 140:17 came 14:8 25:20 32:14 35:2 60:12 61:4,9,17,18 68:17 73:21 78:9 80:24 81:9 82:2 83:21 84:4,6 85:5,15,16 149:11,17 151:12 156:5 156:6 candor 23:7 capacitors 62:8 Capitol 3:15 care 12:10 30:19 46:7 careful 29:24 30:4 82:7 carefully 141:3 cartoons 131:22 cartridge 93:22 case 16:21 20:8 25:22 27:2 41:11 50:2 53:9 60:21 73:3,5,20 93:23 109:24 115:19 117:21 129:10 132:4 133:1141:7 143:20 146:12 147:22 cases 15:21 53:16 55:7 96:4 150:20 154:18 catastrophic 150:12 catch 115:15 caught 115:19 cause 16:9 43:24 caused 136:24 causes 16:12 ceiling 8:22 9:2 125:14 126:1 center 2:12 9:11 centers 12:10 38:15 centimeter 154:24 centimeters 11:15,21 14:10 certain 33:21 34:1,3 93:20 certainly 26:22 52:11 58:22 115:4 117:3 150:21 certainteed 1:7 4:7 132:7 CertainTeed's 133:4 certification 157:16 certify 157:4 certifying 157:20 challenged 39:21 chambers 21:15,18,24 chance 8:6 9:13 change 57:12 57:13 changed 126:17 changing 120:8 120:12 chaotic 89:13 chap 139:24 characterization 24:17 41:3 ESQUIRE DEPOSITION SERVICES TOWOLDMON0060604 161 characterize 20:24 30:24 40:5 45:13 84:9 characterized 41:9 Charles 1:11 6:5 chart 66:5 152:18 chatter 67:19 cheaper 19:14 check 144:16 chemical 7:5 16:23 93:4,4 120:19 121:20 121:23 122:18 123:2,22 127:23 133:6 CHEMREX 1:8 children 55:15 Childs 139:20 144:17 145:20 146:7 CIB 24:6 32:9 35:22 37:16 CIB's 38:12,19 circulated 63:5 circumstance 40:13 circumstances 49:3 cite 23:20,22 citing 20:7 50:1 City 1:15 claim 89:18 claiming 89:16 105:17 117:18 claims 95:1 CLAIN 2:2,3 10:8 13:7,11 13:20 14:21 15:1 17:10 18:21 20:23 21:4,14,19 22:5 23:19 24:16 25:2,8 27:5 29:10,20 30:2,7,11 33:6 36:21 40:3 41:1 42:16,24 43:10 44:8 45:2,18,23 46:24 47:19 48:2,20 49:1,9 55:4,18 57:23 61:6,10 64:10 65:14 69:3 71:22 73:23 74:3 77:9,16 81:1,5,23 82:5 83:9 84:1,14 84:22 85:8,14 85:23 88:5,10 90:5,18,24 99:5 100:3,11 100:22 101:4 106:9,19 107:15 108:5 108:11,16,21 109:8 110:13 112:2,18 113:1,12,24 114:6 116:5 121:1,11,24 122:10 134:17 135:15 138:11 138:15 140:6 140:22 141:14 142:7,19,23 144:6,18 145:1,8,14,23 147:2,8 148:4 clarify 29:22 30:14 cleaning 60:11 cleanup 7:3 14:14 16:15 17:1,3 19:15 20:132:20 57:1,2,8 59:24 clear 28:10 34:241:18 59:8 68:12 69:17 116:21 118:15 clearly 47:8 73:13 86:4 110:11111:8 152:24 156:6 climatewise 87:4 close 104:2 111:9 114:24 116:22,23 137:4 clouding 49:15 coach 143:1 Cocciardi 71:16 73:1 Cohen 142:20 coincidence 111:4 coincidental 111:2 collapse 101:11 collapsed 101:18 collect 115:13 collected 11:1 66:17 68:3 78:8 collecting 93:20 collector 115:23 colloquy 107:20 color 104:5,14 104:16 colored 104:8 combination 127:10 come 14:7 36:23,24 43:16 53:17 58:12 68:16 70:8 80:20 83:5 90:7 109:10 111:15 117:5,17 121:4 125:1 131:21141:10 146:12 comes 29:4,19 114:19,22 126:5 comfort 88:11 coming 74:13 93:11 98:14 100:20 105:18 124:15 128:7 128:18 129:9 140:4 143:2 145:13 commence 87:1 comment 45:21 74:8 comments 45:8 110:9,15,17 COMMISSION 1:4 commitment 86:23 common 57:14 127:7 commonly 12:1 commonwealth 1:1,14 6:3,4 communicate 45:15 144:11 communicated 46:20 company 1:7,9 1:9 3:20 compared 124:18 completely 70:10 77:4 78:1 80:21 complicated 125:23 complied 14:14 comply 12:24 12:24 components 132:22 compound 93:4 compounds 16:7,17 18:11 39:6 computer 124:10 conceding 113:17 concentration 19:22 60:13 66:2 68:6 concentrations 70:22 concept 67:22 92:16 concern 16:21 19:8 concerned 16:24 63:8 87:5 concerning 14:2 42:22 74:18 121:22 130:6 133:8 conclude 127:5 148:17 152:23 concluded 134:22 156:23 conclusion 75:9 102:6 106:18 127:17 129:17 129:18 147:21 149:18 156:4 conclusions 10:20 68:11 88:21134:13 134:20 139:4 151:1 conclusively 129:3 condensation 119:2 124:5 condense 120:9 120:23 123:11 123:20 124:15 125:18 126:20 137:7 138:1 condensing 118:21119:1 119:3 120:14 120:15 124:9 128:19 conditioning 126:8 conditions 16:6 conduct 114:5 conduits 62:24 confusion 52:9 conjunction 36:19 Connecticut 3:17 145:18 connection 51:24 connects 126:4 consecutive 131:9 consecutively 131:8 consequently 43:11 44:19 54:15 86:24 111:22 consider 12:9 45:17 96:7 consideration 54:20 considered 16:19 consistent 73:15 74:22 77:4 78:1 80:21 81:13 81:20 83:2 86:7,13 consists 131:17 constant 124:4 constantly 55:12 constituent 63:4 consulted 39:24 contact 12:1,10 12:19,20 14:10 70:8 114:20,22 contacted 150:14 151:23 contain 21:18 26:18 49:12 152:2 contained 59:1 62:5,8 75:23 77:22 89:9 152:3 container 69:24 containing 75:22 151:15 151:16,17 156:7 contains 150:23 contaminated 22:20 contamination 35:12 60:15 content 63:12 contents 58:23 context 67:15 78:12 continued 97:24 98:7 107:20 continues 110:18 continuously 43:20 contradicted 153:23 155:12 156:1 contrary 44:3 contributed 139:9 control 38:15 157:19 convenient 148:15 conversation 112:8 convert 15:16 cool 36:24 119:7 137:6 cooler 137:24 corner 136:20 corners 136:19 corporation 1:7 1:8 3:11 correct 7:8 14:20 30:14 31:4 34:9,21 35:16 40:14 42:4 43:17 54:5 90:15 96:24 102:2 147:8 152:11 154:14 corrected 36:10 correction 81:14 corrections 43:15 correctly 80:3 corresponding 56:14 costs 7:6 counsel 21:8 22:12 23:12 24:19,22 25:6 28:23 29:8 31:3 32:22,22 33:4,15 35:19 37:2 40:10 41:18,23 42:1 48:7,14 77:8 107:3,23 109:4 counsel's 31:20 42:21 48:17 country 83:20 couple 98:6 125:16 course 7:15 12:3 15:20 16:19 26:20 53:22 54:4 57:7 60:10 93:13 96:17 140:3 147:23 court 1:1,14 6:4 6:11 7:8,9,11 7:11,14 8:2,4 10:12 13:17 14:4 15:5 17:23 18:23 21:10,17,20 21:22 22:1,6,9 22:17 23:7 25:16 26:5,10 27:15 28:20 29:6,18 30:1,5 30:10,19,22 31:5,15 33:1 33:20,24 34:10,22 35:5 35:24 36:7,15 36:18 37:18 37:23 38:3,9 39:15 40:22 42:3,3,10 43:7 43:8,11,24 44:13,15 45:5 45:9,20 46:4,4 46:9,10,12 47:12,16,20 47:24 48:13 49:5,10,19 50:22 51:3,8,9 51:18 52:5,14 52:23 53:3,4 54:1,2 55:6,22 56:2 58:3 59:5 61:12 64:9,15 64:21 65:1,17 69:6,10 74:1,9 77:7,12 81:3 81:18 84:16 84:24 85:3,4 85:10,19,22 86:15,20 87:9 ESQUIRE DEPOSITION SERVICES TOWOLDMON0060605 162 87:13,14,17 134:11,15 126:19 95:12 98:1 disagrees 24:13 22:18,18 24:4 87:20 88:2,9 cured 92:6 93:7 decided 123:7 154:22 32:23 108:24 59:21 142:12 88:12 90:9,20 105:12 128:4 decides 120:22 detected 97:19 discomfort 142:18 91:1,3 99:7 Current 24:6 deciding 78:14 detection 96:3 140:9 draw 68:11 100:13,17 28:7 37:18 115:17 120:8 119:18 154:16 discoursing 75:10 88:22 101:6 102:16 38:11 120:10 154:17 155:5 51:11 94:6 134:13 106:14,23 cut 103:21 decisions 48:9 detective 60:7 discussed 18:7 drew 134:20 107:16 109:19 118:8 125:23 123:13 60:20 132:19 23:24 119:18 drive 17:1,2 110:21111:11 125:24 declared 6:4 detects 154:21 discussion 21:6 driven 56:12 111:12 112:1 cut-off 78:13 declining 129:4 deter 42:1 22:4 64:11 driving 105:15 112:5,23 78:18 Defendant 2:23 deteriorated 66:14 81:4 drop 8:22 113:2,5,7 3:10,19 4:7 136:5 106:24 114:18 drove 135:12 114:2 121:8 D 25:24 53:11 determination 121:10 146:5 dry 105:14 122:5,21 D 5:1116:4 53:12 109:18 Disease 38:15 134:11 134:21135:19 damage 43:12 defendants determinative disposal 78:14 drying 105:14 138:18 139:15 43:13 1:10 26:21 48:8 78:22 duct 8:22 96:21 139:19,20,23 damaged 53:11 27:2 55:10 determine 20:1 dispose 78:14 98:23,23 140:7,15 damaging define 60:11 48:6 53:14 79:7 99:23 116:9 141:2,20 26:18 29:1 defined 80:18 54:14 93:23 disposed 79:9 118:11,16,22 143:17 144:2 42:9 85:15,16 determining disregard 124:16 126:3 144:12,13,21 DANAHER definitely 97:1 151:2 42:21 126:3 130:19 145:3,10,17 3:13 defy 126:20 develop 31:19 disrupting 132:16 133:23 145:21146:6 data 9:14 10:2 degrees 105:13 developed 28:4 41:20 134:23 135:2 147:1,4,10,24 10:5,15,22 116:24 133:14 31:1234:3,6 disseminating 135:6,7 136:1 148:6,21,24 12:22 14:12 133:16 134:3 41:8 58:6 38:16 136:6,19 149:3 150:1 19:24 63:10 134:10,16,23 development distributed ductboard 62:9 156:11,17 64:1 68:11,19 135:11,14,23 28:2 38:21 62:3,18,22,23 73:21 74:13 courtaulds 1:7 69:1 76:1,2,5 150:15 device 15:15 78:3 103:15 75:21 77:2,22 2:23 76:7 80:6 deliberate devoted 55:10 distribution 89:2,18 90:16 courtroom 1:15 93:22 106:12 148:1 diagram 72:10 89:5,14 92:2 93:12 111:13 106:20 107:6 deliberates 153:13 disturbed 28:23 95:2,17 98:14 courts 54:5 107:9,12,13 147:17 Dibenzofurans Division 38:20 98:18 99:9,11 Court's 21:23 107:18 108:1 deliberation 39:3 DM 71:21 90:3 100:2,20,21 43:3 44:10 108:4 124:16 43:17 54:20 Dibenzo-P-Dio... 103:5 114:8 101:1,9,13,18 46:6 47:22 127:23 129:2 demonstrates 39:5 116:3 117:9 101:22 102:3 48:3,17 64:6 153:5,23 81:9 difference 15:2 119:10 125:6 102:7,23 90:4 113:10 154:4 155:13 dense 138:5,9 33:23 137:10 151:6 103:22 104:12 140:7 156:2 denying 113:20 different 23:13 doctor's 143:15 105:22 116:22 covered 90:4 date 30:20 department 1:2 35:1453:9 document 32:2 118:7,9 120:7 CRACKEN 55:12 1:3,5 40:13 57:9,10,11 32:12,15 33:8 126:16 127:2 2:17 Dated 157:14 depend 123:15 70:10 73:13 35:10,20 128:7,18 crawling day 12:4,10 depending 20:6 76:17 78:12 132:15 129:12,12,19 100:20,24 87:6 94:18 49:24 80:15,16 documents 22:7 129:23 130:2 create 16:6 96:22,22,22 depends 116:19 differently 22:9 27:14 130:8,17 60:14 102:10 141:19,21,22 124:14 103:7 44:16 131:16 131:21132:3 102:24 141:24 142:2 deposited 68:14 differs 25:23 131:17,18 132:4,10 created 42:4 142:3,4 75:16 77:6 difficult 144:22 132:6,13 133:20 135:12 102:11 146:13,17 78:2 125:3 diffuse 52:18 133:3,4 136:21 139:6 creates 102:11 156:13,16 149:11,23 dinner 148:7 doing 19:15 149:7 150:9 credentials days 19:18 150:4 153:1,4 dioxin 16:6,12 53:7,8 57:8 150:10,14 43:23 60:3 139:22 143:8 153:16,17 16:17 18:10 90:22 114:16 151:16 152:4 credibility 144:9 146:15 depositing 75:3 18:14 19:5,8,9 119:21132:24 155:24 53:19 146:16 deposition 1:21 19:14,21,23 144:18 Ducts 114:15 criteria 32:1,11 DCT 131:8,8 156:23 157:5 26:6 52:1 done 9:18 19:16 ductwork ! 32:15 33:8 35:10,20 36:3 131:10,10,10 described 89:17 131:11,11,11 128:19 56:14 58:20 59:3 20:2 30:20 39:12 57:16 62:14 75:2 91:19 92:13 cross 29:19 131:12,12 describes 89:23 dioxins 16:9,22 60:20 93:17 99:2 30:3,15,18 dead 116:2 designed 45:19 27:7 58:9 94:10 112:20 due 24:21 75:15 32:18 33:14 deal 31:16 40:9 46:2 57:5 direct 17:16 113:3 128:9 duly 157:5 40:9,23 44:4 dealing 17:20 65:13 22:19 37:11 143:6,8 146:3 during 8:24 45:1 60:15 dealings 18:4 desire 25:7 44:12 125:4 door 44:24 16:18 19:7 81:21 82:3 dealt 24:3,8 desk 120:9 150:4 153:2 doubt 43:4 53:22 61:20 83:23 86:11 113:14 124:10,19 157:19 down 9:1117:4 73:21 74:13 107:5 108:2 debris 8:19 125:11128:21 directed 148:1 66:2 90:7,10 75:17 77:6 108:15 122:7 58:16,20 59:1 Desks 58:24 directly 18:12 97:20 104:2 87:23 90:16 130:6 150:8 decent 141:8 96:19 disagree 28:14 111:15 118:14 93:13,16 cubic 96:4 decide 39:15 detail 132:17 91:8 133:9 156:3 96:16 97:11 154:19 120:23 125:12 detect 154:15 disagreement Dr 13:6,8,23 105:12 111:22 cure 48:11 detectable 24:17 14:7,8 17:17 129:4 130:5,7 ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O6O6 163 130:18 133:14 117:12 132:15 133:15 156:8 148:7 151:11 environment E 139:9 E 5:1117:9 EPA 11:3,8,9 157:2,2 11:11,19 12:5 each 53:20 12:24 16:20 64:12,20 41:16 51:21 76:22 88:18 52:7 56:22 136:21140:18 57:3 58:5 earlier 70:3 59:11,16 70:3 122:24 132:18 78:13,17 early 66:24 79:16 easel 111:13,16 epidemiologist easier 149:18 142:18 edge 6:2,18,21 epitaths 49:14 53:2 87:9,14 equal 15:22 136:15 137:18 146:10 139:17 146:23 equipment 148:23 156:17 37:21,24 39:7 effect 34:11 58:24 96:19 41:20 48:10 Erickson 140:18 142:12 either 47:22 error 54:4,15 48:16,17 escape 105:5 123:14 155:21 131:2 elected 131:1 escaped 130:17 electrical 9:7 escapes 119:17 15:14,17 especially 37:21,24 39:6 140:19 50:24 51:2 ESQUIRE 1:21 ELECTRONICS 2:3,4,11,19 1:8 3:2,3,4,5,14 elevated 97:2 4:2 130:24 essence 130:23 elicit 122:9 133:11 EMERGENCY essentially 1:4 105:5 115:12 emphasize 119:15 123:18 153:12 128:1154:15 employees established 17:16 22:19 121:21 encouraged establishes 33:8 49:12 establishing end 146:13 34:11 endeavor 7:18 etc 39:7 96:19 engineer 127:6 109:3,4 English 44:17 143:16 44:22 evaporate enjoying 140:4 92:24 93:2 eqjoys 140:4 117:1120:10 enough 36:1 123:23 127:22 57:6 64:15 evaporated 94:6 112:6,12 150:16 112:16 117:22 evaporates 119:7 121:5 92:22 enter 117:16 evaporating 118:12 130:16 118:20 120:14 131:2 137:22 120:14 entered 123:9 even 23:10 32:5 entering 120:4 33:11 34:2 128:8 44:12 48:7 enters 118:8 97:13 109:15 119:15 117:2 118:20 entirely 70:6 120:2 123:8 entitled 29:3,5 134:24 136:13 65:12,19 72:8 136:22 137:18 114:14 116:9 event 28:13 41:17 100:9 148:9 ever 8:129:12 67:6,11100:5 132:20 134:6 every 10:18 19:18 46:23 48:23 88:18 115:19 151:22 152:13,13 everybody 49:12 144:14 everyone 87:10 141:13 156:19 everything 86:13 150:20 everywhere 89:6,8 95:21 95:24 evidence 23:12 23:13,14 24:7 25:11,19,23 25:24 28:6 29:4,11 38:6 44:14 47:9 53:17 54:9 98:24 99:13 105:21,24 116:21118:15 evidentiary 24:12 28:16 33:3 Ewing 83:3 117:2 exactly 9:5 38:2 51:7 66:20 72:24 examination 29:19 32:18 40:24 44:4 45:1 81:22 83:24 86:11 107:5 108:3 110:5 122:7 130:6 examine 33:14 example 132:2 except 47:6 133:13 excess 150:15 excuse 37:14 45:23 84:1 excused 156:22 exhibit 36:2 38:4 64:1,5,8 65:10,11,19 68:24 71:1,3 74:17 89:22 103:12 111:16 114:8,11,13 116:3 118:1 125:5 127:14 129:20 150:8 151:1,7,10,11 exhibited 43:23 exhibits 37:10 64:17,20 65:15 102:24 110:7 131:5,7 expect 26:20 89:4 96:23 133:15,20,21 128:23,24 139:6 129:8 facility 57:11 expected 26:24 facing 111:7 57:11 95:18 fact 7:21 23:21 119:24 23:23 24:1,5 expensive 26:19 28:5 79:12,15 32:22 34:1 experience 18:6 42:15 48:5 56:11 57:20 73:16 75:10 61:3,14 89:7 93:6 expert 7:3,12 95:16 97:2 7:14,16 13:14 113:13 128:7 44:1,2 109:12 146:13 109:12,16,17 factory 134:4,5 109:20 135:13,23 experts 27:24 facts 41:10 explain 19:13 53:15,16,17 65:9 66:10 53:22 54:13 92:18 103:14 54:14 151:14 125:8 156:2 explained 46:3 factual 44:6 83:19 102:9 54:12 107:22 109:1 faded 136:1 explaining failing 105:22 106:17 107:8 fails 98:23 131:21147:22 failures 37:22 explains 131:24 38:1 39:7 explanation fair 82:16 46:16 149:9 fairly 141:8 149:19,20 fall 59:14,18 explanations 99:12 153:21 155:12 faUen 136:6 explore 81:21 falling 124:8 82:3 83:23 falls 98:24 explosive 21:11 false 21:1,11,22 exposed 42:8 22:23 28:21 76:19 77:3 29:5,15 32:24 116:10,20 41:22 46:17 117:19 48:6,15,19,21 exposure 39:2 54:11,17 57:13 falsity 47:17 express 21:24 familiar 67:17 82:12 83:12 73:19 74:12 expressed 25:6 130:4,10 81:11 82:17 familiarized expressions 10:1 51:11 fancy 65:4 extemporaneous far 63:8 72:11 49:14 108:18 146:15 extensive 22:6 FARRINGTON 25:11,19 2:2 extent 120:13 farther 43:1 extremely fashion 113:4 63:22 92:13 faster 19:15 96:2,11,20 fault 112:14,15 98:5 105:9 February 87:7 106:7 111:7 142:2 144:10 128:12,16 146:20 156:14 feel 22:24 F feels 54:8 F 118:2 157:2 feet 125:16 fabricated 136:21 131:22 few 32:3 49:17 fabricating 142:21 135:11 fiber 115:13 fabrication fiberglass 92:5 130:7 132:15 104:9,15 105:19 114:20 114:23,24 115:12,18 116:18,19 117:6 134:1 137:3,23,24 138:6,10,16 138:23 139:2 fibers 115:12 115:16 117:15 field 7:18 fields 7:13 fight 86:10 filed 39:19 filled 9:21 filter 93:21 finally 153:20 find 43:24 80:6 83:19 88:3,17 89:6,8 94:24 95:18 96:23 97:1111:19 115:3 120:1 132:20 finders 42:14 48:5 finding 60:5 75:5 80:1 97:5 findings 76:4 76:23 fine 28:15 42:16 82:4 83:24 86:12 90:5 99:2 119:21129:13 144:6 finished 45:24 143:4 fire 8:16,17,20 10:21 12:22 14:17,20 15:8 15:9 16:21 17:8 18:9 19:7 20:11,14,17 20:18,18,21 31:23 32:16 33:10,14 40:1 40:9,11,17 41:13 50:5,9 50:12,13,14 50:17 56:3,7 56:13,17,20 57:21 58:14 60:24 61:20 61:23 62:2,15 62:17 63:12 63:13,20 66:16,19 67:6 67:11 68:1,3,8 68:14 73:12 73:14 75:11 75:12,15,16 75:18 77:6 79:23 93:14 94:12 95:13 96:14 98:4 114:15 125:4 129:5,7 149:24 150:5 150:12,13 :T ESQUIRE DEPOSITION SERVICES TOWOLDMON0060607 164 151:4,13,19 12:23 59:15 113:2,8 117:9 G 119:11 40:4 45:3,6 87:18,22 88:7 151:20,24 flowing 118:11 117:10,12 garbage 8:19 48:11 66:1,13 88:14 90:2,6 152:7,16,17 flu 140:22 128:22 141:18 gas 119:4 74:7 86:20 90:11,22 91:4 152:22 153:2 fluid 15:19 142:4144:9 gave 106:16 88:16,23 90:2 99:14 100:7 153:4,7,17 fluorescent 146:15,16 general 1:2 91:15 92:9 100:14,18 154:11 156:8 62:11126:4 152:15 155:14 10:22 91:1 93:7 94:18,21 101:2,7 fireproofing fly 126:21 fourth 97:3 generated 97:9,12,16 102:17 103:10 63:23 65:12 127:21138:23 155:20 62:21 106:8 109:20 106:14,15,21 65:20 66:8 flying 75:1 89:1 four-and-a-half generic 57:4 115:2,3 116:1 107:1,19,21 67:3,5 68:2,7 89:19 90:15 73:4 gentlemen 48:4 117:4,5,23 108:9,14,20 69:22,23 70:9 91:19 95:17 frank 22:1 49:7 Georgia 38:16 119:9 123:14 108:23 111:3 72:9,21,23 99:9,24 100:6 146:22 gets 28:12 123:18 124:3 113:19 114:7 1 73:7,13 75:3 100:19 155:24 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84:9,19 8:24 9:3,4,4,7 four 9:4 19:17 26:6 31:19 85:12 86:9,16 ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O6O8 165 H half 15:22 96:3 154:18,23 155:1,2,4 half-hour 52:20 Hall 1:15 hallway 9:12 hand 131:4 handed 131:7 handing 69:8 handle 43:7 handling 54:21 happen 35:22 46:14 78:15 100:1,21 101:9 105:20 111:10 117:24 119:6,9 120:16 126:11 126:23 133:17 137:1,17,20 happened 33:1 61:22 136:8 145:15 151:22 154:3 happening 106:7 111:21 111:21124:14 124:17 127:11 144:15 happens 53:15 150:9 hard 70:7 Harrisburg 67:16 68:18 68:21 71:7,9 73:11 74:23 75:6 134:7 Harry 125:6 Hartford 3:17 having 56:13 66:14 139:23 140:9 149:16 hazards 37:24 38:18 head 9:1 Health 37:23 38:14 40:13 heap 101:19 hear 15:3 36:8 50:23 51:15 51:18 67:19 74:1 77:8,9 85:19 88:2 106:10,13,20 107:12 110:10 110:12,21 111:18,21 112:7,12,13 112:17 121:18 150:2 heard 16:1,18 17:5,15 22:6 22:18 28:20 28:21 33:20 47:1 50:23 51:8,9,11 52:6 80:15 85:4 91:22 93:19 110:8,23 111:4,7,23 112:15 113:19 115:9 125:14 hearing 39:15 47:7 64:19 110:14 151:18 hears 112:8 heat 116:10,20 117:3,5,19,20 133:16 heated 105:12 heating 126:8 133:13 134:2 134:9,15,23 135:1,6,10,14 135:22 136:15 136:23 held 1:14 59:21 help 43:3 125:22 143:2 helped 99:21 henderson 2:10 2:11 31:8,24 33:7 35:7 39:10 51:13 51:23 110:16 112:3,19 113:16 114:1 137:13 her 112:4,14,17 139:21 140:3 140:8,10,12 140:16 141:9 141:11,12 145:22 146:9 147:11 herschel 4:2 31:9 33:22 36:11 45:10 45:22 50:19 69:13,15 143:14,23 Hershey 71:10 72:18 73:3 80:1 Hey 53:12 high 12:1,9,20 14:10 60:13 117:22 135:7 higher 66:5,6 75:4,7 92:23 135:7 152:22 highest 55:14 him 7:19 13:8 14:24 15:3 17:14 34:5,13 39:21 43:24 45:1 61:8 69:8 74:7 77:10 85:4 108:2 109:15,23 121:22 142:20 himself 44:21 hindsight 43:9 history 32:4 hit 125:19 150:11 hits 115:2 hobbling 101:8 holes 62:24 holiday 142:3 Holy 147:7 home 9:23 12:4 65:5 145:13 146:7 homes 12:11 Honor 6:10 7:1 10:9,11 13:7 13:11,15,20 14:3,22,24 17:10,19 18:22 20:23 21:2,5,7 22:5 23:9,24 24:2 27:5,22 28:5 28:17,24 29:10,20 31:12,24 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47:11 48:19 83:15 107:14 112:3 inc 1:7,8 2:24 inch 136:23 inches 136:17 136:18 incident 111:22 incidents 113:9 113:11 incinerated 150:16 151:18 incineration 156:7 inclination 144:8 inclined 123:16 included 121:12 includes 131:19 131:22 133:24 134:2 including 17:21 41:11 62:2 inconsistent 96:21115:21 incorrect 32:1 88:4 increase 97:3 128:23 154:1 155:21 incredibly 102:12 incumbent 54:7 indeed 37:11 39:22 Independence 2:6 Indicating 91:14 104:10 104:17 118:24 126:9 156:3 Indicative 89:12 individually 141:15 inform 88:3 information 38:17 131:23 innumerable 49:11 inside 9:12 76:20 116:21 insight 74:17 inspect 8:6 inspected 8:18 inspection 9:1 installation 81:17 82:16 84:5 86:5 installed 82:9 82:18 instances 24:4 instead 46:19 89:14 Institute 38:13 instruct 52:16 instructed 90:21 instruction 28:18 41:24 42:11 45:12 130:23 132:14 instructions 90:4 131:20 132:15 insulation 104:9 137:3 intact 99:2 integral 25:22 98:20 integrity 135:8 Intelligence 24:6 28:7 37:19 Intelligent 38:12 intended 35:16 65:20 103:20 intending 46:9 intention 141:17 intentional 47:2 intentionally 46:19 interest 76:7 interesting 32:18 40:23 76:24 interface 139:2 inteiject 36:1 Interjecting 48:16 interpretation 83:17 interrupt 77:11 103:17 110:5 introduced 24:7 91:2 invite 112:7 involved 17:12 18:12 19:20 20:10,14 24:4 31:21 41:14 50:4,8 56:17 59:23 60:11 involvement 18:16 32:20 41:12 involves 115:11 involving 53:9 iron 130:21 135:1 136:15 136:23 137:18 issue 45:4 49:15 109:17 112:10 112:21144:1 issued 38:13 item 67:23 I james 2:4 13:6 13:8,23 14:7,8 59:21 January 1:12 1:17 157:14 JFK 1:22 job 10:4,15 60:4 143:19 john 1:18 5:2 6:15,20 35:9 157:13 John's 51:16 JOYCE 2:19 jr 1:11 6:5 Judge 30:7 36:21 41:3 109:13 141:16 145:24 146:4 judges 53:21 judgment 109:13 jumps 118:7 juror 87:5 88:10 146:19 147:5 jurors 22:2 53:2,14 86:23 87:24 88:6 146:11156:21 jury 6:24 11:5 11:6 15:24 21:12,13 22:13 23:7 k T } ESQUIRE DEPOSITION SERVICES TOWOLDMON0060609 166 26:16 27:6,13 keeps 101:12 laid 108:12 12:13,17,18 line 25:17 66:1 118:23 121:7 28:19 29:3,23 145:12 122:15 13:6 14:6,7,9 86:17 127:17 130:19 33:5 42:7,8,11 Ken 113:20 Lamm 142:18 14:15 17:1,3 158:2 mail 145:11,12 45:15 46:11 KENNETH 2:3 land 147:7 20:4,7,24 liquid 119:4,8 mainly 60:16 46:20 47:3,10 3:14 landfill 79:5,11 49:22 50:1 list 12:8 91:20 nuyor 91:13 47:15,15,20 kept 36:9 79:13,13,14 52:2 59:19 98:19 minority 76:9 48:24 52:17 KERR 4:1 language 44:17 66:6 67:9,10 lists 91:12 79:3 53:5 61:4,16 kind 12:20 15:9 44:22 67:15 68:8 literature 132:2 make 15:2 29:5 61:21 64:5 15:18 25:18 laser 65:8 70:17,20 132:18,21 36:22 43:14 65:9 71:21 57:4 69:19 last 39:19 54:2 72:12 80:23 134:14 46:12 48:8 87:11 90:3 79:24 80:9 54:6 55:24 94:7 97:19 little 57:9 82:23 54:3 60:12 91:10 92:19 110:19 113:3 84:24 85:2,21 104:2 128:23 93:5,22 94:6 76:5 107:3,4,5 1 103:17 107:24 109:5,7 110:6 115:9 117:20 118:8 124:7 87:23 98:19 152:20,21 100:16 123:1 levels 10:20 98:4 99:23 126:10 132:17 107:9,24 108:2,6 109:5 110:11111:7 131:20 144:14 129:11142:15 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140:19 87:10,13 material 9:21 K L 99:15 103:17 143:4,15 148:3,5,7 60:14 79:4 K 4:2 lab 19:13,14,18 108:2 111:12 144:10,19 105:1,3,12,15 KATHY 3:3 60:18 66:22 113:7 140:12 146:12 148:14 M 105:17 114:20 keep 96:12 135:5 140:16,24 150:7 M 3:2 115:8 118:19 99:21114:15 laboratory 141:9 likely 92:24 made 24:12 119:23 123:19 128:24 131:12 63:16 letter 41:12 93:1 106:4 30:16,21 124:9 128:1,5 140:8 143:11 lack 154:1 Let's 25:18 Likewise 47:19 41:18 42:13 155:23 144:9 149:14 lacks 107:17 53:1 93:9 59:20 45:8 48:3 materials 58:14 154:16,16 ladies 48:4 112:5 114:17 Limine 39:21 58:23 64:22 math 94:16 keeping 55:12 LAGNESE 121:8 limit 96:3 155:5 92:7 105:8 matrix 92:12 130:13 156:13 3:13 level 11:20,23 limiting 36:18 110:17 112:21 matter 1:14 11:24 12:1,2,7 Limping 101:8 13:12,18,22 ESQUIRE DEPOSITION SERVICES TOWOLDMONOO6O610 167 23:22,23 24:1 46:1 47:18 54:21 may 6:9,12 7:13 16:18 19:6 27:10 32:3 33:12 34:10 35:24 44:2,3,20 53:2 53:23 55:20 77:7 79:1 87:2 87:2,18 90:9 92:2 109:24 122:7 125:13 146:20 147:7 147:9 148:23 149:1 maybe 8:24 43:16 57:10 57:10 95:11 121:17 125:16 142:12,23 143:7,7 148:18 MC 2:2,3,17 10:8 13:7,11 13:20 14:21 15:117:10 18:21 20:23 21:4,14,19 22:5 23:19 24:16 25:2,8 27:5 29:10,20 30:2,7,11 33:6 36:21 40:3 41:1 42:16,24 43:10 44:8 45:2,18,23 46:24 47:19 48:2,20 49:1,9 55:4,18 57:23 61:6,10 64:10 65:14 69:3 71:22 73:23 74:3 77:9,16 81:1,5,23 82:5 83:9 84:1,14 84:22 85:8,14 85:23 88:5,10 90:5,18,24 99:5 100:3,11 100:22 101:4 106:9,19 107:15 108:5 108:11,16,21 109:8 110:13 112:2,18 113:1,12,24 114:6 116:5 121:1,11,24 122:10 134:17 135:15 138:11 138:15 140:6 140:22 141:14 142:7,19,23 144:6,18 145:1,8,14,23 147:2,8 148:4 McClain 37:9 45:13,22 49:8 54:15,18,24 77:15 82:24 83:4 110:8 111:1121:18 McClain's 83:17 mean 9:3 15:8 20:17 50:13 60:8 67:13 99:19 104:24 119:2 127:10 133:21 154:17 154:20 meaning 78:13 84:6 86:11 127:21150:22 152:8 means 66:11 82:3 84:11,15 94:17 99:20 104:24 157:18 meant 88:1 measurable 10:23 98:10 128:22 measure 92:21 measurements 97:18 Mechanically 116:23 medical 86:23 Melius 22:18 24:4 members 11:4 53:4 156:11 mentioned 11:8 13:4 56:24 60:2,4 62:20 72:16 76:1 92:14 97:17 132:18 133:19 154:8 Merely 25:2 meter 96:4 154:19 method 93:20 155:6 meticulous 30:8 30:23 meyers 2:19 110:14,22 111:5,24 112:13,20 113:18 143:9 143:12 microgram 11:23,24 12:6 12:13,16,18 13:3 20:8 32:13,14 35:11 38:8 50:256:12 96:4,5 154:19 154:23 155:1 155:2,4 micrograms 11:14,2114:9 microphone 77:13 Monday 86:24 64:23 82:22 middle 139:7 87:2 139:23 141:16 145:6 might 12:3 141:5 143:11 145:12 32:18 42:1 146:21147:1 Neal's 82:8,13 48:14,15 57:9 156:15 near 110:6 60:19 67:17 Mondays 111:13 70:8 94:20 141:18 143:2 necessary 122:6 123:16 monsanto 1:9 64:13 125:22 132:1 3:10 need 21:4,14,16 139:12 140:13 MONTGOME... 21:23 45:14 140:23 156:9 2:17 46:18 71:23 million 67:4 months 94:11 81:14 143:8 68:6 72:12 94:22 95:11 146:17 73:4,6 75:11 97:18 154:10 needed 88:6,11 75:13 78:9,11 mood 146:11 needs 35:9 78:18 79:2,4,5 more 23:17 139:24 Milton 71:10 26:17 34:2 Nerves 114:3 72:18 73:3 44:21 52:18 never 17:11 mind 96:13 68:7 73:10 22:7 28:20,21 114:15 130:13 79:12,14,24 33:1 36:5,14 154:16 80:5 89:3,12 47:24 55:8 mine 29:21 91:1 92:24 65:5 83:9 85:8 82:13 97:13 113:16 100:23 116:24 mineral 1:6 123:16 127:6 118:22 121:14 3:20 morning 6:8,23 140:23 mini 39:14 6:24 7:23,24 nevertheless minimizing 156:19 34:12 42:7 145:5 MORRIS 4:1 43:6 minute 25:16 most 76:24 new 38:17 25:19 77:20 95:21 83:12,13 minutes 41:21 149:15 152:24 86:17 106:17 107:7 153:4,5 next 49:3 71:1 107:22 148:18 154:18 71:3 87:6 98:6 mirarchi 1:11 motion 26:11 114:8,13,19 6:5 39:21 94:20 116:3 118:1,3 mischaracteriz... motioning 118:5 119:12 34:21 87:24 119:14 125:5 misconstrued motivation 125:15 137:4 44:7 46:5 140:2 142:14 misinterpret move 120:11 146:8 147:2 88:8 143:5 nice 89:14 mislead 47:3 moved 28:6 nights 142:24 misleading 47:5 63:2 NIOSH 17:6,7 misled 29:23 moves 119:16 17:9,12,15,16 misrepresentat... moving 118:14 18:4,4,12 19:8 34:5 much 16:20 19:20 20:4,20 miss 77:15 42:5 43:5 75:7 20:24 22:7,10 missing 25:17 79:14 93:19 22:13,17,19 Missouri 2:6 96:6 137:24 23:4 24:18,18 misspoke 35:4 144:19 149:18 27:10,12,20 misstating must 21:18 28:1,3,4,10,12 30:13 53:16 29:12,14,16 mixed 92:3 myers 110:2,18 31:3,6,21 93:6 myself 21:24 32:13 33:9,12 mixture 92:4 99:3 145:24 33:21 34:3,5 93:7 M.D 1:2 36:7,12 37:6 mobility 92:11 38:14,22 molecule N 39:23 40:5,6 114:18 115:24 N 5:1 40:11,14,17 116:15,17 name 6:2,19 41:9 49:22 117:4,14 nap 77:17 50:16 51:24 118:6,23 National 38:13 52:12 56:3,6 120:22 nature 26:16 57:21 molecules 42:14 45:20 NIOSH's 18:16 105:4 137:19 59:1 18:19 19:4 137:21,22 navigating 24:2 27:14 moment 66:14 146:9 32:19 34:14 125:19 NEAL 3:13,14 37:3 51:24 moments 26:4 noise 67:18 non 154:15 none 119:22 135:7,8 154:2 Nonetheless 25:9 normal 12:4 73:22 74:14 90:16 normally 10:5 10:14 92:10 NORTH 1:8 Notary 1:19 note 77:19 notes 51:13 158:1 nothing 26:14 133:16 noticed 112:23 nowhere 27:14 number 12:9 18:8,11 51:11 69:6 73:12 76:6 89:8 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118:7,7 135:12 138:23 146:5 149:5 offensive 26:17 offer 54:1 111:15 offered 153:22 office 9:22 58:24 71:11 72:18 73:5 80:2 96:19 126:13 128:19 OFFICES 2:10 Often 149:15 Oh 14:16 Okay 49:9 66:12 116:14 122:10 156:21 once 62:17 110:13,18 120:22 122:3 137:1 155:22 one 2:12 3:6 4:3 9:8 13:22 15:20 20:8 23:1 25:9 27:17,24 32:7 32:13,14 35:11 38:7 40:6 41:4 43:19 50:2 55:15 56:12 60:9 65:7 66:13 69:9,11 71:9,10 76:23 78:8,19 79:24 80:5 82:19,21 86:22 88:5,18 91:15,20 94:18 96:5 103:5,5,5,7,16 103:19 104:22 109:21110:3 112:6,6,8,15 114:13 116:9 116:15 126:5 127:20 136:13 136:20,22 137:12,13,15 142:2,10 146:17,19 148:2 151:15 155:1,2,4 ones 16:24 ongoing 124:22 only 7:21 22:14 27:10,18 30:21 37:4 40:8,18 41:6 43:9 46:12 48:5 52:22 53:17 78:8 95:14 97:5 118:19 133:24 146:19 148:5 open 6:4 opens 44:24 operate 98:7 operated 93:13 operating 97:7 operation 73:22 74:14 90:16 opinion 7:19,20 13:21 23:1 27:18 31:1 33:12,15 44:20 48:7 63:3 81:11 82:11,11,17 83:13 84:3 90:13 91:5,8 106:11,12 107:19,23 108:13 109:15 133:7 139:3 155:2 opinions 127:16 opposite 12:20 119:5 orange 104:5 order 105:2 117:15 118:11 119:5 120:3 124:7 126:11 142:6 organic 93:4 orient 125:20 origin 7:4 60:5 original 81:16 84:5 86:4 originally 77:21 other 9:411:18 24:12 51:10 58:13 62:24 63:1 64:17 68:20 71:4,6,9 72:16,22 73:15,17 74:22 75:6 80:6,9,19,22 83:22 86:1 87:3 92:3 95:14 98:3 102:5 110:4 113:8 115:14 126:7 132:17 139:24 142:10 144:21,23 153:3,21 154:13 155:11 others 16:20 32:11 otherwise 16:19111:18 146:18 147:14 148:13 ought 23:1 29:15 30:17 47:10 143:24 ourselves 26:19 out 13:17 32:14 33:7 41:8 43:16 44:5 63:11 73:21 74:13 75:1 86:22 88:3 91:18,19 92:8 93:8,11 94:15 95:10,15,17 96:22 97:7 98:14 99:9,24 100:6,20,24 102:23 103:19 104:23 105:18 106:1109:10 111:12 112:10 113:1,4 114:18 116:1 116:16 121:7 124:15 126:6 126:12 128:7 128:18 134:11 138:1142:4 155:24 156:2 outburst 26:16 31:20 42:5,8 outer 77:2,23 88:18 137:18 153:11,12 outlined 133:12 outrageous 29:7 33:2 41:23 outside 23:2 76:19 104:4 Oven 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