Document VjKay9JD3My9J5OdRZOBrwmVZ

1 (Pages 1 to 4) J. MICHAEL SMITH J. MICHAEL SMITH Page 1 VOLUME: I PAGES: 1-303 EXHIBITS: 1-23 STATE OF SOUTH CAROLINA COUNTY OF GREENVILLE ) ) ******************************* ) ) ) ) SUSAN K. LENZ, Individually and as Personal Representative of the Estate of Gary Lenz, Plaintiff, ) ) ) ) ) vs. Allis Chalmers Corporation Product Liability, et al, Defendants. ) ) ) ) ) ) IN THE COURT OF COMMON PLEAS C/A NO. 2008-CP23-09194 Former Coal chemical learner and mechanical assistant (Various locations in South Carolina); Mesothelioma Audiovisual Deposition of Riley Stoker Corporation By Its Designee J. Michael Smith Wednesday, May 13, 2009 Cetrulo & Capone, LLP Two Seaport Lane Boston, Massachusetts Darlene Caiazzo Sousa, CSR, RPR HG LITIGATION SERVICES. 2501 Oak Lawn Avenue, Suite Dallas, TX 75219 888.656.DEPO 600 HG LITIGATION SERVICES HGLITIGATION.COM 1 APPEARANCE S 2 Representing the Plaintiff: 3 SIMON EDDINS & GREESTONE, LLP 3232 McKinney Ave., Suite 610 4 Dallas, TX 75204 BY: JAY E. STUEMKE, ESQ. 5 214.276.7680 214.276.7699 (Fax) 6 Representing the Defendant Riley Power: 7 CETRULO & CAPONE, LLP Two Seaport Lane 8 Boston, MA 02210 BY: JASON M. SAUL, ESQ. 9 617.217.5500 617.217.5200 (Fax) 10 and 11 DEHAY & ELLISTON, LLP 36 South Charles Street 12 Suite 1300 Baltimore, MD 21201 13 BY: TOM RADCLIFFE, ESQ. 410.783.7001 410.783.7221 (Fax) 14 15 Representing Warren Pumps: TURNER PADGET GRAHAM & LANEY, P.A. 16 P.O. Box 1473 1901 Main Street, 17th Floor 17 Bank of America Building Columbia, SC 29201 18 BY: THOMAS M. KENNADAY, ESQ. 803.254.2200 803.799.3957 (Fax) 19 20 Representing Crane Co.; Buffalo Pumps and Viad Corp.: 21 NELSON MULLINS RILEY & SCARBOROUGH, LLP 1320 Main Street; 17th Floor 22 Columbia, SC 29201 BY: ANTHONY HAYES, ESQ. 23 803.255.9416 803.256.7500 (Fax) 24 25 HG LITIGATION SERVICES HGLITIGATION.COM Page 2 J. MICHAEL SMITH 1 Representing John Crane, Inc.: O'Connell, Tivin, Miller & Burns 2 645 Tollgate Road Suite 220 Elgin, IL 60123 3 BY: THOMAS J. BURNS, ESQ. 847.721.4603 4 5 Also Present: 6 Bill Slater, Videographer 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HG LITIGATION SERVICES HGLITIGATION.COM J. MICHAEL SMITH Page 3 1 INDEX 2 DEPONENT 3 PAGE 4 J. MICHAEL SMITH 5 Examination by Mr. Stuemke 7 6 7 8 EXHIBITS 9 NO. DESCRIPTION PAGE 10 11 1 Notice of Deposition 6 12 2 Excerpt from Power Magazine, May 1947 31 13 3 Excerpt from Power Magazine, 14 January 1951 37 15 4 Excerpt from Power Magazine, December 1959 42 16 5 Excerpt from Power Magazine, 17 April 1965 49 18 6 Excerpt from Power Magazine, February 1966 51 19 7 Complete Riley Steam Generating 20 Units 55 21 8 Three-Ring Binder 94 22 9 Affidavit of Document Authentication 114 23 10 Contract Review, Units One and 24 Two 150 25 11 Contract Review, Unit Three 150 HG LITIGATION SERVICES HGLITIGATION.COM Page 4 2 (Pages 5 to 8) J. MICHAEL SMITH 1 12 Riley Stoker Engineering Standards 215 2 13 Handwritten Notes of Lenz 3 Depositions 219 4 14 Excerpt ASME Membership List, 1928 247 5 15 Excerpt ASME, 1940 248 6 16 Excerpt Mechanical Engineering, 7 February 1933 250 8 17 Excerpt Mechanical Engineering, April 1933 253 9 18 Excerpt Mechanical Engineering, 10 February 1935 255 11 19 Memo to M&R Staff, 3/13/72 265 12 20 Riley Stoker Memo, 3/24/72 267 13 21 Memo to All Domestic Sales Offices, 7/31/72 270 14 22 Riley Stoker Memo, 1/9/57 284 15 23 Workers' Compensation Claim, 16 7/6/48 288 17 18 19 20 21 22 23 *Original Exhibits Retained by Attorney Saul, copies sent to HG Litigation to be distributed 24 to counsel. 25 HG LITIGATION SERVICES HGLITIGATION.COM J. MICHAEL SMITH Page 5 Page 6 1 PROCEEDINGS 2 3 10:04 a.m. 4 (Exhibit No. 1, Notice of Deposition 5 so marked) 6 THE VIDEOGRAPHER: I am Bill Slater, 7 your videographer. I represent the Litigation 8 Support Company of Dallas, Texas. I'm not 9 financially interested in this action nor am I 10 a relative or employee of any of the attorneys 11 or any of the parties. 12 The date is May 13, 2009. The time is 13 10:04 a.m. This deposition is taking place at 14 Cetrulo & Capone, Two Seaport Lane, Boston, 15 Massachusetts. The case number is 2008-CP-3316 09194 in the Court of Common Pleas, State of 17 South Carolina, County of Greenville, entitled 18 Susan K. Lenz, Individually and as Personal 19 Representative of the Estate of Gary Lenz 20 versus Allis Chalmers Corporation Product 21 Liability. 22 This deposition is being taken on 23 behalf of the plaintiff. This begins tape 24 number one, Volume I in the videotaped 25 deposition of J. Michael Smith, the corporate HG LITIGATION SERVICES HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 7 Page 8 1 representative produced for Riley Stoker. 1 Q. Could you introduce yourself to the 2 The court reporter is Darlene Sousa. 2 jury, please? 3 Counsel will please give their appearances for 4 the record. 3 4 A. My name is initial J. Michael Smith. Q. What does the J stand for? 5 MR. STUEMKE: This is Jay Stuemke with 5 6 Simons Eddins & Greenstone appearing on behalf 6 A. John. Q. Nothing too objectionable there. What 7 of the plaintiffs. 7 is your address, sir? 8 MR. SAUL: Jason Saul, Cetrulo & 8 A. 188 South Road, Holden, Massachusetts 9 Capone appearing on behalf of Riley Power. 9 01520. 10 MR. RADCLIFFE: This is Tom Radcliff 10 Q. Is that your residence? 11 appearing on behalf of Riley Power. 11 A. Yes. 12 THE VIDEOGRAPHER: Would the court 12 Q. Do you have a business address? 13 reporter please administer the oath. 14 J. MICHAEL SMITH, 13 A. Same one. 14 Q. How old a man are you? 15 having first been satisfactorily identified and 15 A. Sixty-five. 16 duly sworn by the Notary Public, was examined 16 Q. And you are presently retired, 17 and testified as follows: 17 correct? 18 EXAMINATION CONDUCTED 18 A. Yes. 19 BY MR. STUEMKE: 20 Q. Good morning, sir. 21 A. Good morning. 19 Q. When did you retire? 20 A. July 2006. 21 Q. From what company did you retire? 22 Q. My name is Jay Stuemke. You and I met 22 A. From Riley Power Company. 23 for the first time just a few moment ago, 23 Q. And that company, Riley Power Company 24 correct? 24 was previously known as Riley Stoker; is that 25 A. Yes. 25 correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 3 (Pages 9 to 12) J. MICHAEL SMITH J. MICHAEL SMITH Page 9 Page 10 1 A. Yes. 1 became vice president of Pace Power 2 Q. Okay. And for the purposes of this 2 Constructors, which is a Riley company, in 3 deposition, I'm just going to refer to Riley 3 1985. I became director of the pressure parts 4 Stoker as referring to all the predecessor 4 group in 1988. 5 entities of that company with respect to Riley 5 I became director of the parts group 6 Stoker products. Do you understand that? 6 in 1992. I then became director of the parts 7 A. We're going to call it Riley Stoker 7 group in Eerie, Pennsylvania in 1996. I 8 today. 8 returned to Worcester in 1999 as director of 9 Q. We're going to call it Riley Stoker? 9 the power services group, and in 2005 I was 10 A. Fine. 10 named director of parts operations until my 11 Q. Sir, can you briefly describe your 11 retirement in July 2006. 12 employment history starting with Riley Stoker? 12 Q. Do you receive any sort of retirement 13 A. With Riley Stoker I started as a 13 benefit from Riley Stoker? 14 boiler design engineer. 14 A. There is a small retirement benefit 15 Q. In what year? 15 before they went to the 401K. 16 A. 1973. 16 Q. You receive a pension of some type, 17 Q. And how did your career with Riley 17 correct? 18 Stoker progress after that? 18 A. Yes. 19 A. I was promoted to project engineer in 19 Q. Okay. In addition to the pension 20 late '74, 1974. I became a project manager, 20 payment, do you have a 401K fund that was 21 industrial division, in 1976. I became project 21 administered through Riley Stoker? 22 manager, utility division, in 1977. I became 22 A. Was. It's not administered now. 23 manager of after-market construction in 1980. 23 Q. Have you rolled that over into an IRA 24 I became senior project manager, 24 of some type? 25 maintenance and repair division, in 1982. I 25 A. I've rolled it over into my own 401K. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 11 Page 12 1 Q. Okay. Prior to joining Riley Stoker 1 the George Neal Power Plant in Sioux City, 2 in 1973, what prior jobs had you had? 3 A. I worked for Ebasco, E-B-A-S-C-O, 2 Iowa, as a field and then an office engineer. 3 In February 1973 I left Ebasco and started with 4 Services. They're out of New York City, but I 5 worked in the field construction division from 4 Riley Stoker. 5 Q. Sir, when did you graduate from high 6 1966 to 1973. 7 Q. What were your job responsibilities in 6 school? 7 A. 1962. 8 the field construction division of Ebasco 9 Services in that time? 8 Q. Where did you go to college? 9 A. Worcester Polytechnic Institute. 10 A. In 1966 I was an assistant engineer at 10 11 the Dallas Power and Light Mountain Creek 11 12 Station. In June of 1967 I became field 12 13 engineer at the Lake Ray Hubbard Power Plant in 13 Q. Did you attain a degree? A. Yes. Q. What was that degree in? A. Bachelor of science in civil 14 Mesquite, Texas. In 1978 I was assigned to 14 engineering. 15 field engineer at the Bridgeport Harbor Station 15 Q. What year? 16 in Bridgeport, Connecticut. 17 Q. You mean 1968? 16 A. 1966. 17 Q. Have you done any post-graduate 18 A. What did I say? 19 Q. '78. 20 A. No, '68 definitely. Sorry. In 1969 I 21 was assigned to the -- as a field engineer to 18 education? 19 A. Yes. 20 Q. What have you done? 21 A. I obtained a Master's degree in 22 the Vermont Nuclear Power Plant in Vernon, 23 Vermont. 24 Q. 1969? 22 business administration. 23 Q. From what school? 24 A. Anna Maria College in Paxton, Mass. 25 A. '69, yes. In 1971 I was assigned to 25 Q. In what year? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 4 (Pages 13 to 16) J. MICHAEL SMITH J. MICHAEL SMITH Page 13 Page 14 1 A. 1982. 1 engineers' conduct, correct? 2 Q. Did Riley Stoker pay for your tuition? 2 A. Yes. 3 A. Pardon? 3 Q. You would agree with me that those 4 Q. Did Riley Stoker pay for your tuition 5 for the MBA program? 6 A. Yes. 7 Q. Do you hold any professional 8 certifications? 4 codes of ethics require you as a professional 5 engineer to look out for the public safety? 6 A. The codes of ethics require you under 7 all times to act in the best interest and the 8 best engineering process, procedures to ensure 9 A. Yes. I'm a licensed professional 9 that you do it the right way. 10 engineer. 10 Q. And that is to protect the public 11 Q. When did you become a licensed 11 safety, correct? 12 professional engineer? 12 A. Yes. 13 A. I became a licensed professional 13 Q. That's always been the case, as far as 14 engineer in 1972 in Iowa and subsequently in 14 you know, with respect to engineering codes of 15 Massachusetts in around 1980, I believe it was. 15 ethics, correct? 16 Q. Are you a licensed professional 17 engineer in any other jurisdictions? 16 A. Not just engineering codes. Many 17 codes of ethics have certain requirements. 18 A. No. 18 Q. Sure. Specifically engineering codes 19 Q. You would agree with me that the code 19 of ethics, as long as you've been aware of 20 of ethics of professional engineers requires 20 them, have had that requirement, true? 21 them to look out first and foremost for public 21 A. Yes. 22 safety, correct? 22 Q. You do not have any medical training, 23 A. Rephrase that, please. 23 correct? 24 Q. You're familiar with the codes of 24 A. No. 25 ethics governing licensed professional 25 Q. You have no training in industrial HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 15 Page 16 1 hygiene, correct? 1 to the form. 2 A. I do not have any training in 2 A. The Riley Stoker lawyers asked me to 3 industrial hygiene. 3 come here an answer questions; that's why I'm 4 Q. Have you seen the notice of deposition 4 here today. 5 in this case, sir? 5 Q. You understand that you're appearing 6 A. No. 7 Q. I will hand you what we've already 6 in response to this notice, correct? 7 A. I understand I was asked to come here 8 marked as Exhibit 1 and ask you to take a look 8 to answer questions by the attorneys. I have 9 at that? 10 A. (Witness complies) I scanned it. 11 Q. You haven't memorized it yet? 9 not seen this. 10 Q. You understand you're testifying on 11 behalf of Riley Stoker, correct? 12 A. No. 13 Q. Do you see on the first page, sir, 12 A. I'm answering questions from my 13 knowledge about Riley. 14 that the deposition is noticed for the 15 corporate representative of Riley Stoker? 14 Q. Okay. 15 MR. STUEMKE: Mr. Radcliffe, can I get 16 A. Yes. 17 Q. Okay. And that it's noticed for 16 a stipulation that he is appearing as a 17 corporate representative in response to the 18 today's date and time? 18 notice of deposition attached as Exhibit 1? 19 A. Yes. 19 MR. RADCLIFFE: I will agree with you 20 Q. Okay. So you understand that for 20 that he is the designated witness on behalf of 21 purposes of this deposition you're appearing as 21 Riley Power, yes. 22 the corporate representative of Riley Stoker, 22 Q. This is not the first time in which 23 correct? 24 A. I'm here because -- 23 you've been asked to give testimony on behalf 24 of Riley Stoker in an asbestos case, correct? 25 MR. RADCLIFFE: Tom Radcliffe. Object 25 A. It's not the first time. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 5 (Pages 17 to 20) J. MICHAEL SMITH J. MICHAEL SMITH Page 17 Page 18 1 Q. How many times previously have you 1 home in -- was it Holden, Massachusetts -- 2 testified in asbestos cases such as this one? 2 A. Yes. 3 A. Previously, I believe it's around 18 3 Q. -- to Boston? 4 separate cases. 4 A. Yes. 5 Q. Okay. When was your most recent 5 Q. Okay. Did you stay at a hotel? 6 deposition? 6 A. No. 7 A. In April. 7 Q. Sir, do you know how many hours you 8 Q. For you this is deposition number 19 8 have done work on behalf of Riley Stoker in 9 in asbestos litigation for Riley Stoker? 9 asbestos litigation cases in 2009? 10 A. That's my count, yes. 10 A. No, I don't. 11 Q. And you're currently retired from 11 Q. Okay. In 2008 you've testified that 12 Riley Stoker. You're getting paid separately 12 you earned about $60,000 from doing work in 13 for your time today; is that correct? 13 asbestos litigation cases for Riley Stoker; is 14 A. I'm getting paid for my time 14 that about right? 15 separately, yes. 15 A. 60, 65, definitely that range, yes. 16 Q. Okay. And do you bill by the hour? 16 Q. Okay. So in 2008 we're looking at 600 17 A. Yes. 17 to 650 hours of work you did for Riley Stoker; 18 Q. At what rate? 18 is that fair? 19 A. For working $100 per hour. 19 A. I worked in the range of 600 to 20 Q. Okay. Do you bill it a different rate 20 650 hours, yes. 21 for something other than working? 21 Q. Okay. In 2007 you've testified that 22 A. Travel. 22 you earned about $80,000 from your work in 23 Q. Travel. What is your rate for travel? 23 asbestos litigation for Riley Stoker. Does 24 A. $75 an hour. 24 that sound about right to you? 25 Q. Your travel would be driving from your 25 A. Yes. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 19 Page 20 1 Q. That would be about 800 hours? 1 travel. A couple of times I've flown and had 2 A. Yes. 3 Q. In 2006 I think you've testified that 2 airline flights, hotels. 3 Q. Sure. 4 you only earned about $8,000 or $9,000 from 4 A. I'll give you round numbers, and I'll 5 doing this type of work. Does that sound about 5 live with that. 6 right? 6 Q. Okay. When did you first start doing 7 A. Yes. 7 this type of work for Riley Stoker in asbestos 8 Q. That would be about 80 to 90 hours; is 8 litigation cases? 9 that correct? 9 A. I started in 2005. 10 A. What was the number you gave? 10 Q. Okay. And about how much money did 11 Q. $8,000 to $9,000? 11 you earn from Riley Stoker for doing this type 12 A. The hours run less than that because 12 of work in asbestos litigation cases in 2005? 13 of the travel. There's a lot of travel when 13 A. It wasn't very much, and it wasn't 14 I'm working, so it's in the range of 800 hours. 14 from Riley Stoker. I bill Cetrulo & Capone. 15 Q. Okay. You mean 80 hours? 15 Q. Okay. Cetrulo & Capone you understand 16 A. 80, yes. 16 to be the attorneys for Riley Stoker, correct? 17 Q. You make a good point. You bill a 17 A. Yes. 18 lower rate for travel, so the amount of hours 18 Q. At least some of the attorneys for 19 that you worked would actually be higher than 19 Riley Stoker, correct? 20 what we've just stated, correct? 20 A. Yes. 21 A. Could be. We're rounding everything. 21 Q. Now, in 2009 you've given a lot of 22 Q. Absolutely. It's not less than these 22 depositions already, correct? 23 numbers. It's likely more than these numbers 23 MR. RADCLIFFE: Object to form. Tom 24 to account for the lower travel rate? 24 Radcliffe. 25 A. Well, the billing also includes 25 A. I don't know about a lot. I've given HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 6 (Pages 21 to 24) J. MICHAEL SMITH J. MICHAEL SMITH Page 21 Page 22 1 three. This would be maybe the fourth. 1 Q. Okay. Thinking about it now, does 2 Q. Okay. 2 that sound about right? 3 MR. STUEMKE: And just for the record, 3 A. Could be in that range. 4 Tom, I think that you're the only counsel on 4 Q. Okay. And that would reflect work 5 the phone so you don't need to identify 5 time of approximately 1,600, 1,700 hours of 6 yourself. If there's anybody else, I'll 6 work that you've performed in asbestos 7 stipulate that an objection by one defendant is 7 litigation? 8 good for all defendants appearing in the 8 A. Over a four-year period, yes. 9 deposition. 9 Q. You've previously testified, sir, that 10 MR. RADCLIFFE: Sorry. I didn't know 10 when you were employed by Riley Stoker you were 11 that. 11 a loyal employee; is that true? 12 MR. STUEMKE: No problem. 12 MR. RADCLIFFE: Object to form. 13 Q. Do you have an estimate, sir, of how 13 A. I was loyal to Riley Stoker, yes. 14 many hours you've spent working on behalf of 14 Q. Are you still loyal to Riley Stoker? 15 Riley Stoker in asbestos litigation in 2009 so 15 A. Loyal in what way? 16 far? 16 MR. RADCLIFFE: Object to the form. 17 A. In 2009 I've worked several hundred 17 A. I'm not in the office. I'm not there. 18 hours already. 18 I mean, certainly I wouldn't do anything to 19 Q. At least 300; is that fair? 19 harm Riley. 20 A. At least 250. 20 Q. Okay. I'd like to talk to you, sir, 21 Q. Okay. Sir, since you started doing 21 about several main topics in this deposition 22 work in asbestos litigation cases for Riley 22 today. First I want to talk to you about the 23 Stoker, you have earned approximately $175,000 23 company Riley Stoker, a little bit about its 24 $180,000, would that be about right? 24 history and its usage of asbestos-containing 25 A. I never added it up. 25 products over time. Are you prepared to HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 23 Page 24 1 discuss that issue today? 1 business in 1931 when they acquired 2 A. I can talk about the history, and I 2 Badenhausen; is that correct? 3 can talk about what I know from the time I got 3 A. That's correct. 4 there and what I learned about the past. 4 Q. And, sir, it's true that from 1931 to 5 Q. Okay. And, sir, I'd also like to talk 5 the present, Riley Stoker has been in the 6 to you about the information you've learned 6 business of designing, fabricating and selling 7 about the specific boilers that were at the 7 boilers, correct? 8 Interstate Power Plant, Lansing, Iowa, that is 8 A. Yes. 9 at issue in this case. Are you prepared to do 9 Q. And not just boiler but the entire 10 that? 10 steam generating units that would be utilized 11 A. Yes. 11 in factories, correct? 12 Q. Sir, finally, I'd like to talk to you 12 13 today about Riley Stoker's knowledge of the 13 A. No. Q. Okay. When did Riley Stoker enter the 14 hazards of asbestos and what actions they did 14 business of selling steam generating units? 15 or did not do in response to that knowledge. 15 A. The steam generating units started in 16 Are you prepared to talk about that today? 16 1931 when -- we're talking the boilers. 17 A. I can talk about -- 17 Q. Okay. In your mind are steam 18 MR. RADCLIFFE: Object to form. 18 generating units synonymous with the term 19 A. -- what Riley knew about thermal 19 "boilers"? 20 insulation in our products, yes. 21 Q. First, to give the jury an idea of the 20 21 A. No. Q. Okay. What is the distinction between 22 history of Riley Stoker, the company itself 23 started in 1913; is that right? 22 those terms? 23 A. A steam generating unit encompasses 24 A. Yes. 24 the whole -- can encompass the whole power 25 Q. And Riley Stoker entered the boiler 25 island; that includes the boiler, auxiliary HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 7 (Pages 25 to 28) J. MICHAEL SMITH J. MICHAEL SMITH Page 25 Page 26 1 equipment to make it run. We don't design, we 1 that it's been the business model of Riley 2 don't make -- such as fans, motors, pumps, we 2 Stoker since 1931 to sell steam generating 3 don't design or make any of that stuff. 3 units to industry? 4 There's a lot of things we don't design and 4 MR. RADCLIFFE: Object to form. You 5 fabricate. 5 know, Mr. Stuemke, the problem I have is that I 6 Q. Okay. The steam generating units 6 don't know that we've defined "steam generating 7 include a boiler that is designed and 7 units," and he already said that -- 8 fabricated by Riley Stoker, correct? 8 MR. STUEMKE: We just did. 9 A. Can be, yes. 9 MR. RADCLIFFE: Well, there is a lot 10 Q. Okay. As well as auxiliary equipment 10 more to a steam generating unit than just the 11 that would typically be designed and 11 boiler. 12 manufactured by some separate party; is that 12 MR. STUEMKE: Now you're coaching the 13 correct? 13 witness because we did just define steam 14 A. Some third party, yes. 14 generating units. 15 Q. But you would agree that from 1931 to 15 Q. You can answer the question. 16 the present Riley Stoker has sold the entire 16 MR. RADCLIFFE: I didn't hear it, and 17 steam generating units, correct, including the 17 I'm not coaching the witness. 18 auxiliary? 18 A. Riley's business model wasn't to sell 19 MR. RADCLIFFE: Object to form. 19 the whole steam generating unit. Riley's 20 A. They have sold a wide variety of 20 business model was to respond to customer 21 different combinations not -- and not always 21 requests for products via their specification 22 the whole steam generating units. 22 of whatever -- however way it was conveyed to 23 Q. Sure. With respect -- strike that. 23 us, and our scope varied greatly. 24 Regardless of whether it happened 24 Q. Okay. Now, customers didn't call 25 every time or just a lot of times, you'd agree 25 Riley Stoker and say they needed a pallet of HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 27 Page 28 1 breakfast cereal, did they? 1 strike that. 2 A. No. 2 From 1931 to the present, Riley Stoker 3 Q. No. They were selling steam 3 has also been in the business of servicing, 4 generating units; that's their business, 4 repairing and providing replacement parts for 5 correct? 5 its old boiler s, correct? 6 MR. RADCLIFFE: Object to form. 6 A. I don't know when that started. 7 A. They were selling boilers. 8 Q. Okay. Nothing else? 7 Q. Okay. 8 A. Like I ran the parts department for a 9 A. No. I already said we can't say that 9 number of years, and I'm aware they were in 10 everything we sold was a steam generating unit. 10 business in the '60s and maybe '50s. 11 A boiler is part of it. Sometimes we only 11 Q. Okay. 12 supplied the bare bones ASME code steel 12 A. I don't know prior to that. 13 components, nothing else. And some other 13 Q. You're not aware of a time after 1931 14 person, entity took and added the rest of the 15 items to make the boiler complete and then 14 when Riley Stoker did not have a business of 15 servicing its old boilers, correct? 16 added the rest of the balance of plants to make 16 A. I'm not aware when they did or didn't. 17 the boiler work. 17 Q. You're aware they did in the '70s and 18 Not always -- so we have went from 18 '60s and '50s. You just testified to that, 19 that to where we have supplied a great amount 19 correct? 20 of the equipment for the steam generating unit, 20 A. Yes, I did. 21 rarely all of it, but a good amount of it. So 21 Q. You're not aware of the time prior to 22 we had that whole range, and it varies by 22 that when they did not have that business, 23 contract. 23 correct? 24 Q. Okay. Right. I think we'll come back 24 A. I'm not aware of the time they didn't 25 to that. It sounds like you're -- are you -- 25 have it or when they did have it prior to my HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 8 (Pages 29 to 32) J. MICHAEL SMITH J. MICHAEL SMITH Page 29 Page 30 1 knowledge base. 1 until the '60s when Riley bought the United -- 2 Q. Where is Riley Stoker based, sir? 2 Union Iron Works in Eerie, Pennsylvania. That 3 A. The headquarters of Riley Stoker is in 3 was in the '60s. 4 Worcester, Massachusetts. 4 And then after that they added Riley 5 Q. Okay. And has that always been true 5 Southwest in Sapulpa, Oklahoma. And they added 6 since the formation of the company? 6 another one in Shreveport, Louisiana. And they 7 A. Yes. 7 subsequently closed Cornwells, closed -- sold 8 Q. Okay. Has Riley Stoker ever 8 off Louisiana and sold off Oklahoma and right 9 manufactured boilers in Worcester, 9 today it's Eerie. 10 Massachusetts? 10 Q. Okay. Through the 1960s it's true 11 A. No. 11 that all Riley Stoker boilers were manufactured 12 Q. Where has Riley Stoker manufactured 12 in Pennsylvania, correct? 13 its products? 13 A. One of two locations, yes. 14 A. Okay, we need to define the products 14 Q. Okay. And could you tell the jury 15 more than just boilers because they started off 15 what a stoker is? 16 as a stoker company and bought up several other 16 A. A stoker is -- there's many 17 stoker companies to give them a wide range of 17 variations, but basically what it is, think of 18 products like service the entire industry. And 18 it as an outdoor grill that you put charcoal on 19 at that time they were doing some stokers in 19 the grill and light it and it burns. But in 20 Worcester, some in Rhode Island. 20 this case it's a contained vessel so that the 21 There was some -- Detroit there was a 21 burning of the charcoal on the grill actually 22 foundry. There was -- over the years they 22 heats water. So basically it's a piece of 23 bought and sold several entities. The boilers 23 equipment that burns the fuel you need to run 24 themselves were manufactured at Badenhausen in 24 the boiler. 25 Cornwells, Pennsylvania, and in the '30s up 25 Q. Okay. Sir, you would agree that from HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 31 Page 32 1 at least the 1940s Riley Stoker held a position 1 MR. RADCLIFFE: Depo notice? 2 of leadership within the boiler industry? 2 MR. STUEMKE: Yes. 3 A. No. 3 MR. RADCLIFFE: Thank you. 4 MR. RADCLIFFE: Object to form. 5 Q. You wouldn't agree with that? 4 Q. Sir, you see that Exhibit 2 is an 5 excerpt of Power magazine, May 1947? 6 A. No. 6 A. I don't see a correlation on the page 7 Q. You're aware, sir, that Riley Stoker 7 back to the cover illustration you have there. 8 has historically advertised in Power magazine, 8 Q. Do you see on the third page there's a 9 correct? 10 A. I'm aware -- 9 copy of a cover of Power magazine dated 10 May 1947? 11 MR. RADCLIFFE: Object to form. 12 A. -- they have advertised in Power 13 magazine. 14 Q. What is Power magazine, sir? 15 A. It's a trade magazine. 16 Q. Okay. For the utility and industrial 17 market? 18 A. Yes. 11 A. Yes, there is. 12 Q. Okay. And this is the same Power 13 magazine, as far as you know, that you would 14 agree Riley Stoker advertised in? 15 A. I believe it would be. 16 Q. Okay. The first two pages of 17 Exhibit 2 comprise a two-page advertisement for 18 Riley Stoker; is that correct? 19 MR. STUEMKE: Mark this as Exhibit 2. 19 A. That's what it appears to be, yes. 20 (Exhibit No. 2, Excerpt from Power 20 Q. Okay. And the heading of the 21 Magazine, May 1947 so marked) 22 Q. Sir, I've handed you Exhibit 2. Why 23 don't you take a quick look at that. 21 advertisement across both pages is "Ten Good 22 Reasons Why So Many Engineers Prefer Riley 23 Units"; is that correct? 24 MR. RADCLIFFE: What was Exhibit 1? 24 A. That's what it says, yes. 25 MR. STUEMKE: The notice. 25 Q. Okay. And then it points out various HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 9 (Pages 33 to 36) J. MICHAEL SMITH J. MICHAEL SMITH Page 33 Page 34 1 features of Riley Stoker boilers, correct? 1 pulverizer, correct, at the bottom right, sir? 2 A. Yes. 2 A. Yes. 3 Q. In fact, it points out various 3 Q. Is that part of the boiler? 4 features of Riley Stoker steam generating units 4 A. No. 5 including auxiliary equipment, correct? 5 Q. Is that auxiliary equipment -- 6 A. No. There's no -- these ten items 6 A. Yes. 7 they have pointed out are not auxiliary 7 Q. -- shown on the advertisement? 8 equipment. 8 A. Yes. 9 Q. Okay. There's a -- look on the first 9 Q. Then if you look at the second page of 10 page at the bottom left of the diagram. 10 the exhibit, sir, it goes through and gives a 11 There's an item called a dust collector, 11 detailed description of the ten reasons that 12 correct? 12 are highlighted by the advertisement. Do you 13 A. Yes. 13 see that? 14 Q. Is that part of the boiler or is that 14 A. Yes, that's what it looks like. 15 auxiliary equipment? 15 Q. Okay. And the bottom paragraph says, 16 A. Auxiliary equipment. 16 "These are just a few of the main distinctive 17 Q. Okay. And that's on the 17 features of Riley's steam generating units 18 advertisement? 18 which assure continuous satisfactory operation 19 A. It's shown on the advertisement. 19 at high efficiency." Did I read that 20 Q. Okay. Also above that there's 20 correctly? 21 something called a Riley air heater, correct? 21 A. Yes. 22 A. Yes. 22 Q. Okay. The paragraph goes on to state, 23 Q. Is that part of the boiler? 23 "Riley units had to be good for Riley to climb 24 A. Yes. 24 so rapidly to a position of leadership in the 25 Q. There's something called a Riley 25 boiler industry." Did I read that correctly? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 35 Page 36 1 A. You read what's there. 2 Q. Okay. Do you have any reason to 1 mousetrap, so to speak. 2 Q. Okay. They're selling their technical 3 dispute, sir, that in 1947 Riley was in a 4 position of leadership in the boiler industry? 5 MR. RADCLiFfE: Object to form. 3 expertise in the quality of the engineering 4 that goes into their product; is that right? 5 A. It could be phrased that way, I 6 A. We were not the biggest boiler 6 believe. 7 manufacturer at that time. We never have been. 7 Q. That's fair. When they're referring 8 We never have been. We have some technological 8 to position of leadership here, you think 9 advantages on certain kinds of boilers that 9 that's a fair characterization? 10 gave us a leg up on sales. If that's 10 A. Fair, what does "fair" really mean? 11 leadership, it's a technical leadership. It's 11 You think of one thing; I think another thing. 12 not we are the best and the largest in the 12 But this is what -- it says what it says. 13 industry. How you interpret it, either way. 14 Q. Okay. It sounds like the point you're 13 They're saying it's leadership. 14 Q. Okay. Then it says, "You can rely on 15 making is that the position of leadership is 15 Riley," correct? 16 somewhat vague, and you're not sure what's 16 A. Yes. 17 intended by that; is that fair? 17 Q. That was a catch phrase of Riley 18 MR. RADCLIFFE: Object to the form. 19 That's not what he said. 18 advertising for a while, wasn't it? 19 A. I don't know. I need to get some more 20 A. I believe there is an issue of 21 technical leadership. It's not stated that 20 water. 21 Q. Also on Exhibit 2, sir, on the second 22 way, but what they're saying is they created a 23 boiler, and these particular attributes of the 22 page, you see it lists a number of what it 23 refers to as recent contracts for Riley Stoker, 24 boiler are better than someone else's. And 24 correct? 25 that's what they're trying to sell, is a better 25 A. Yes. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 10 (Pages 37 to 40) J. MICHAEL SMITH J. MICHAEL SMITH Page 37 Page 38 1 Q. Down the right-hand column, and 1 A. No. It's about 12 to 13 pages here. 2 including Interstate Power Company in Lansing, 2 Q. Okay. And sir, these are double-sided 3 Iowa? 3 pages, correct? 4 A. Yes. 4 A. Yes. 5 Q. Including probably 10 to 12 public 5 Q. Sir, if you turn to the -- strike 6 utilities plants and probably 15 or so industry 6 that. 7 plants that are identified here; is that right? 7 The cover of Exhibit 3 indicates that 8 A. There's 15 or 16 utilities and 8 it is the January 1951 edition of Power 9 probably more industrial plants. 9 magazine, correct? 10 Q. Okay. 10 A. Yes. 11 MR. RADCLIFFE: Let's mark this as 11 Q. And the third page of the exhibit, 12 Exhibit 3, please. 12 sir, is the first page of a two-page Riley 13 (Exhibit No. 3, Excerpt from Power 13 Stoker advertisement in the January '51 Power 14 Magazine, January 1951 so marked) 14 magazine, correct? 15 Q. Sir, if you take a look at Exhibit 3? 15 A. Yes. 16 A. (Witness complies) 16 Q. Okay. And the heading going across 17 MR. RADCLiFfE: Would you mind stating 17 both pages of the two-page advertisement is, 18 for the record what Exhibit 3 is. 18 "Why Do So Many Companies Repeatedly Order 19 MR. STUEMKE: I was going to have him 19 Riley Boiler Units"; is that correct? 20 do that, but just for your own edification, 20 A. Yes. 21 Tom, it's the January 1951 edition of Power 21 Q. You see going across the bottom of the 22 magazine, an excerpt of it. 22 two-page advertisement it's Riley complete 23 A. Not the whole magazine. 23 steam generating units that are being 24 Q. I have the whole magazine if you'd 24 advertised, correct? 25 like, if you want to read the whole thing? 25 A. The advertisement is for complete HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 39 Page 40 1 steam generating units. 1 steam generating units," correct? 2 Q. Okay. And across the bottom of the 2 A. That's what it says. 3 two-page advertisement it identifies the 3 Q. And it goes on to say, "This 4 various components of the complete steam 4 preference, this refusal to accept something 5 generating units being advertised, correct? Or 5 almost as good at a lower price tells a 6 at least some of the components of it; is that 6 significant story of the satisfactory 7 correct? 7 performance of Riley steam generating 8 A. Some of the components. 8 equipment." Did I read that correctly? 9 Q. Okay. And the components that are 9 A. Yes. 10 listed are boilers, pulverizers, burners, 10 Q. Okay. You don't have any reason to 11 stokers, super heaters, flue gas scrubbers, 11 dispute that Riley Stoker steam generating 12 economizers, water-cooled furnaces, steel-clad 12 units were preferred by large numbers of the 13 insulated settings and air heaters, correct? 13 country's public utility and industrial 14 A. Yes. It's a list of products, not 14 companies, do you? 15 necessarily on all one unit. 15 A. I have no idea. This is an ad in a 16 Q. You see on the second page there's the 16 magazine. What's large numbers? I don't know 17 question asked, "Why do so many companies 17 what that means. It's relative. I mean, they 18 repeatedly order Riley boiler units?" Do you 18 do list actual places we've sold repeat orders. 19 see that? 20 A. Yes. 19 Q. Sure. They list one, two, three four, 20 five, six, seven, eight, nine, 10, 11, 12, 13 21 Q. And it indicates that "Large numbers 21 different companies that have repeatedly 22 of the country's well managed leading public 22 ordered Riley boiler units, correct? 23 utility and industrial companies have with 23 A. They've had repeat orders. 24 gratifying regularity placed repeat orders for 24 Q. Okay. Including Interstate Power 25 more Riley units when installing additional 25 Company, second from the bottom, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 11 (Pages 41 to 44) J. MICHAEL SMITH J. MICHAEL SMITH Page 41 Page 42 1 A. Yes. 1 in its history, correct? 2 Q. Okay. Again, this fits in with what 2 A. Yes. 3 you were telling the jury based on the prior 3 Q. Okay. 4 advertisement that Riley advertised their 4 A. That's a relative term too. I mean, 5 technological expertise as being a big selling 5 they have one one year and five the next. 6 point for Riley steam generating units, 6 Q. Sure. We can't tell from this exactly 7 correct? 7 how many Riley boilers are being sold, just 8 A. That was what they wanted to be, yes. 8 that they're selling more now in '51 than they 9 Q. That's what they were claiming here, 9 ever have before? 10 correct? 10 A. Right. And we can also tell how many 11 A. They're saying customers once they get 11 that it is of the industrial -- of the sales of 12 one, they like them; they want another one. I 12 all of the boilers in the country. 13 think a lot of it has also to do with the sales 13 Q. Sure. We'll get to that. The last 14 area, salesmen. I can show you many, many 14 thing I want to mention on this advertisement 15 customers we don't have one single boiler in 15 is, once again, it states the same phrase we 16 their system. 16 saw before, "You can rely on Riley," correct? 17 Q. The advertisement also indicates that 17 A. Yes, it does. 18 Riley units have operating advantages resulting 18 MR. STUEMKE: Let's mark this document 19 from the many distinctive design 19 as Exhibit 4. 20 characteristics, liberal design, sound 20 (Exhibit No. 4, Excerpt from Power 21 engineering and excellent fabrication and 21 Magazine, December 1959 so marked) 22 erection of Riley units; is that correct? 22 Q. Would you take a look at Exhibit 4, 23 A. Yes. 23 sir. 24 Q. And it indicates at this point in 24 A. (Witness complies) Okay. 25 January 1951 that Riley sales are the highest 25 Q. And you see at the bottom of Exhibit 4 HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 43 Page 44 1 that this is taken from Power magazine, 1 A. It's required to make the boiler run, 2 December 1959? 3 A. That is Power, December of 1959. 4 Q. Okay. And, once again, this is a 2 and it's a product we made, manufactured. 3 Q. Right. But you didn't sell every 4 boiler with a Riley fuel burning system, 5 two-page Riley Stoker advertisement? 6 A. That's what it appears to be. 7 Q. Okay. Now, you were making a 5 correct? 6 A. That's correct. 7 Q. Okay. And, obviously, if a Riley 8 distinction before between a Riley boiler and 8 boiler was sold with a Riley fuel burning 9 then the auxiliary equipment that may be 9 system, that would be more money for Riley, 10 associated with it when you're selling a steam 10 correct? 11 generating unit as a whole, correct? 11 A. We'd like to think a boiler would run 12 A. Yes. 13 Q. And in the first page of Exhibit 4 12 better because of it. 13 Q. And you also charge more than just 14 they're describing Riley boilers equipped with 14 selling the boiler? 15 complete Riley fuel burning systems, correct? 15 A. We charge for the product, yes. 16 A. Yes. 16 Q. Sure. And this indicates that, "A 17 Q. Okay. That fuel burning system is a 18 piece of auxiliary equipment, correct? 17 Riley boiler installation complete with Riley 18 fuel burning equipment assures Riley's 19 A. It's a system. It's several pieces of 19 undivided responsibility." Do you see that? 20 equipment. 20 A. Yes. 21 Q. Okay. It's a system of auxiliary 22 equipment, correct? 23 A. It is the fuel system. 21 Q. This concept of undivided 22 responsibility is something that Riley focused 23 on a fair amount, correct? 24 Q. Okay. It's not part of the boiler 25 proper, correct? 24 MR. RADCLIFFE: Object to the form. 25 A. I think everybody did. Every boiler HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 12 (Pages 45 to 48) J. MICHAEL SMITH J. MICHAEL SMITH Page 45 Page 46 1 manufacturer wanted as much that they could 1 there. 2 get. 2 But to say we're the expert in a soot 3 Q. Sure. It's a business? 3 blower or expert in a fan or motor, we're not 4 A. It's a business and -- but it's a good 4 the experts in that. We depend on the designer 5 thing for the customer because when there's an 5 of the product to be the expert. We would be 6 issue, they don't have -- they have one source 6 responsible for forcing them to belly up to the 7 to go to. That was the goal of having this so 7 bar if something was wrong, but we would not be 8 the customer has a better deal, and we can 8 the expert on every single aspect of it. 9 actually control the issues. So when an issue 9 Q. Okay. But the point of the 10 comes up, we can't say, look, it's not ours. 10 advertising is to tell the customer that if you 11 It's this guy over here. It's this guy over 11 buy all of this from us, then you have one 12 here. 12 person that you look to if there's ever a 13 Q. Riley Stoker would have undivided 13 problem with your steam generating unit, 14 responsibility for as much of the steam 14 correct? It's our undivided responsibility? 15 generating unit as it supplied, correct? 15 A. Yes. 16 A. Yes. 16 Q. Turning to the second page of the 17 Q. Okay. And they would be the expert on 17 advertisement, it indicates that Riley provides 18 that steam generating unit in its entirety as 18 skilled construction engineering services. Do 19 opposed to only specifying components; is that 19 you see that? 20 fair? 20 A. Yes. 21 A. They would be an expert on the 21 Q. Indicating that they're -- strike 22 products they designed and manufactured and how 22 that. 23 they went together and how they worked. If 23 This indicates that Riley construction 24 other components were put on there because of 24 crews employ the latest in construction methods 25 the specification by a customer, they'd be on 25 and techniques, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 47 Page 48 1 A. That's what it says. 1 A. No. 2 Q. Okay. It also references the Riley 2 Q. Okay. It is difficult to read just 3 service engineers that are trained for prompt 3 the way the copy came out? 4 and efficient servicing of all Riley 4 A. This is -- something missing in there, 5 installations, correct? 5 but there's something about "have a consulting 6 A. That's what it says, yes. 6 engineer show you ways to" blank, blank, blank, 7 Q. It says, "These experienced engineers 7 "savings and power costs." 8 work closely with your operators," correct? 8 Q. Okay. And so Riley had consulting 9 A. That's right. 10 Q. Getting back to the theme that we've 9 engineers that it would send out to customers' 10 locations to talk to them about ways they could 11 seen in other advertisements, language going 11 save on power costs; is that correct? 12 across the middle of the page basically is 12 A. We were not consulting engineers per 13 "Riley Custom Boiler Engineering Know-How and 13 se like that. 14 Combustion Techniques, Selectivity of Fuel 14 Q. Okay. You'd agree this advertisement 15 Burning Equipment Can Give You Top Performance 15 is suggesting to the potential customer that 16 Regardless of the Nature of Fuel, Load and 16 they could have Riley send a qualified 17 Steam Conditions," correct? 17 consulting engineer to the plant? 18 A. That's what it says, yes. 18 A. That is not what that says. This says 19 Q. And scrolling across the bottom of 19 that a survey of your plant by a qualified 20 this reference it states that "A survey of your 20 consulting engineer can show you ways to do 21 plant by a qualified consulting engineer can 22 show you ways" -- and it's a little difficult 21 whatever and save money. 22 Q. If a customer called Riley Stoker in 23 to make out here, to, perhaps maximize savings 24 in your power costs. Do you see that? Can you 23 response to this ad and said, I'd like to have 24 a qualified consulting engineer come to my 25 make out that exact language? 25 plant and tell me how I can save money, would HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 13 (Pages 49 to 52) J. MICHAEL SMITH J. MICHAEL SMITH Page 49 Page 50 1 Riley Stoker be able to send somebody there or 1 Riley advertisement from Power magazine? 2 would they say, Sorry, can't help you? 2 A. Yes. 3 A. They would probably arrange to get 3 Q. Okay. You see the Power magazine 4 someone there to help them out. 4 cover page indicates it's April 1965? You can 5 Q. All right. Once again, in this 5 only see the last two letters of the month, but 6 exhibit they identify a number of public 6 we know it's April, right? 7 utilities that are using Riley equipment, 7 A. I-L 1965. 8 correct? 8 Q. There's no other months that end in 9 A. Yes. 9 I-L other than April, are there? 10 Q. Okay. And that includes Interstate 10 A. No. 11 Power Company, correct? 11 Q. Exhibit 5 indicates that "Riley has 12 A. Yes. 12 set the record for selling the world's largest 13 Q. It indicates that Interstate Power 13 industrial boiler," correct? 14 Company's purchased seven boilers or seven 14 A. That's what the ad says, yes. 15 steam generating units from Riley, correct? 15 Q. Okay. It even says that it's the 16 A. Seven boilers, yes. 16 third time within a year that Riley Stoker has 17 Q. It doesn't say boilers; it says Riley 17 sold a boiler which they understand to be the 18 equipment, correct? 18 world's largest industrial boiler, correct? 19 A. Right. 19 A. Correct. They say, "To the best of 20 MR. STUEMKE: Mark this as Exhibit 5, 20 our knowledge, this is the largest industrial 21 please. 21 boiler in the free world." 22 (Exhibit No. 5, Excerpt from Power 22 Q. Okay. Would you agree with me, sir, 23 Magazine, April 1965 so marked) 23 that by 1965 Riley had assumed a position of 24 A. Okay. 24 leadership in the boiler industry at least when 25 Q. Sir, you see that Exhibit 5 is another 25 it comes to making the biggest boilers in the HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 51 Page 52 1 world? 1 excerpt from the February 1966 edition of Power 2 A. The biggest industrial boiler, they 3 did -- that was what they did in '65. 4 Q. Okay. Industrial boilers are the 2 magazine? 3 A. Yes. 4 Q. And that the first two pages comprise 5 biggest boilers there are, right? 5 a two-page Riley Stoker advertisement, sir? 6 A. No. 7 Q. What boilers are bigger than 6 A. Yes. 7 Q. Okay. And, once again, Riley Stoker 8 industrial boilers? 8 is listing in this advertisement a number of 9 A. Utilities, a utility boiler. 9 the utility companies that have purchased its 10 Q. They're drawing a distinction here 10 steam generators, correct? 11 between a power plant boiler and an industrial 11 12 boiler? 12 A. Yes. Q. Okay. And Riley Stoker here 13 A. Yes. 13 advertises that over 100 million pounds per 14 Q. Okay. Sir, you would agree with me 14 hour of generated steam for these good Riley 15 that by April 1965 Riley had established itself 15 boiler customers, correct? 16 in a position of leadership in the boiler 16 17 industry when it comes to selling the largest 17 A. Yes. Q. Okay. We've talked some about Riley 18 industrial boilers in the world? 19 A. They had sold the largest industrial 20 boiler as of that time. 18 assuming a position of leadership within the 19 boiler industry. This advertisement indicates 20 that a recent survey showed that of 151 21 MR. STUEMKE: Mark that as Exhibit 6, 21 domestic investor-owned electrical utilities 22 please. 22 operating thermal power plants, 63 or 23 (Exhibit No. 6, Excerpt from Power 23 41.7 percent of them have installed Riley 24 Magazine, February 1966 so marked) 24 boilers or have them on order, correct? 25 Q. Sir, you see that Exhibit 6 is an 25 A. That's what it says. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 14 (Pages 53 to 56) J. MICHAEL SMITH J. MICHAEL SMITH Page 53 Page 54 1 Q. Okay. You don't have any reason to 1 Stoker, when all was said and done, had a grand 2 dispute that? 2 total of about 8 or 9 percent of the industry 3 A. Not what they said here. 3 when I was at Riley. That was what -- the 4 Q. Okay. Sir, wouldn't you agree that a 4 dominant ones were, CE, B&W, and Foster Wheeler 5 company that's sold almost 42 percent of the 5 was third, and we were the last on the totem 6 boilers in use in electrical utility power 6 pole. 7 plants has assumed a position of leadership in 7 MR. STUEMKE: I'll object as 8 that industry? 8 nonresponsive. 9 A. No. That is not what that says. 9 Q. Sir, you don't have any reason to 10 Q. That's not what that says? 10 dispute that by 1966 41.7 percent of the 151 11 A. No. 11 domestic investor-owned electrical utilities in 12 Q. Okay. You think that by 196 -- excuse 12 the country operating thermal power plants had 13 me, by February 1966 Riley Stoker has still not 13 installed Riley boilers or had them on order, 14 assumed a position of leadership in the boiler 14 do you? 15 industry? 15 A. I do not dispute that. 16 A. No. What this ad says is that -- 16 Q. You see also on the first page of 17 they're not saying how many boilers. These are 17 Exhibit 6, sir, at the bottom, once again, it 18 not all the electrical utilities in the 18 states, "A careful survey of your plant by," 19 country. These are investor-owned utilities. 19 probably, a qualified, but it says "consulting 20 There's a lot of municipal utilities. There 20 engineer." It again makes reference to a power 21 are REA. There's a wide range of -- all this 21 plant customer should have a qualified 22 says is of that 41 percent of this grouping has 22 consulting engineer take a look at their power 23 bought at least a boiler from Riley. 23 plant; is that fair? 24 We don't know what the whole 24 A. Yes. 25 population is. I know for a fact that Riley 25 Q. Again, if a customer called Riley HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 55 Page 56 1 Stoker and said, We'd like to have you send a 1 A. Yes. 2 qualified consulting engineer to our plant, 2 Q. Can you identify Exhibit 7, please? 3 Riley Stoker would arrange for that to happen, 4 true? 3 A. The best of my ability, it looks like 4 a compilation of several different Riley 5 A. We will participate in some manner, 6 yes. 7 MR. STUEMKE: Let's mark this as the 5 brochures. 6 Q. Okay. These appear to you based on 7 your experience with the company to be 8 next exhibit, No. 7. 9 (Exhibit No. 7, Complete Riley Steam 8 authentic Riley Stoker documents? 9 A. They say Riley Stoker. 10 Generating Units so marked) 10 MR. RADCLIFFE: Object to form. 11 Q. Take a look through Exhibit 7 if you 11 Q. You don't have any reason to believe 12 would, sir. 12 that these are not authentic Riley documents, 13 MR. STUEMKE: We've been going for a 13 correct? 14 little bit over an hour. Why don't we go ahead 14 MR. RADCLIFFE: Object to the form. 15 and take a break. During that break you can 15 A. I have no reason to believe they are 16 take a look through this. 16 or they aren't other than they say Riley 17 THE VIDEOGRAPHER: The time is 11:13. 17 Stoker. 18 We're off the record. 19 (Recess 11:13 a.m. to 11:19 a.m.) 18 Q. Okay. Sir, if you look to page 12 -19 strike that. 20 THE VIDEOGRAPHER: This is the 20 Let's look first at the cover of 21 beginning of tape number two. We're back on 21 Exhibit 7. The cover of Exhibit 7 is labeled 22 the record. The time is 11:20. 22 "Complete Riley Steam Generating Units," 23 BY MR. STUEMKE: 23 correct? 24 Q. Sir, you've now had an opportunity to 25 glance through Exhibit 7, correct? 24 25 A. Yes. Q. And then down the left-hand side of HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 15 (Pages 57 to 60) J. MICHAEL SMITH J. MICHAEL SMITH Page 57 Page 58 1 the cover it identifies the various elements of 1 fuel burning equipment, the purchaser can place 2 those steam generating units, correct? 2 one contract with undivided responsibility for 3 A. Yes. 3 the complete unit with Riley, thus preventing 4 Q. Okay. And those elements include 4 the possibility of difficulties which often 5 boilers, water-cooled furnaces, super heaters, 5 arise when divided responsibility is involved." 6 reheaters, economizers, air heaters, 6 Did I read that correctly? 7 indoor/outdoor steel-clad insulated settings, 7 A. You read what's there. 8 gas, oil, coal burners, stokers and 8 Q. It goes on to state on the next page, 9 pulverizers, correct? 9 "With Riley designing all the elements of a 10 A. Yes. 10 complete boiler unit, a coordinated, well 11 Q. If you turn, sir, to page 12, I'll 11 balanced installation results. With undivided 12 show you what it looks like so you can find it 12 responsibility, close cooperation as possible 13 easily. 13 among the purchaser, his consulting engineer 14 A. (Witness complies) 14 and Riley, for efficient and expeditious 15 Q. Okay. Actually, look at page -- 15 handling of the contract." Did I read that 16 THE WITNESS: She's bringing in more 16 correctly? 17 water. 17 A. Yes. I'd like to point out that what 18 MR. STUEMKE: Just what we need. 18 they are saying here I totally agree with, the 19 Q. Sir, looking at pages 12 and 13 of 19 complete boiler unit. The components listed on 20 Exhibit 7, we see again the one contract one 20 the cover are part of the boiler unit. It does 21 responsibility theme, correct? 21 not including the auxiliaries that we were 22 A. Yes. 22 talking about earlier. 23 Q. Okay. Again, it says, "Because Riley 23 Q. See on page 12 there's a heading, "A 24 designs, manufactures and erects the complete 24 Typical Riley Steam Generating Unit Going Up," 25 steam generating unit including every type of 25 and then there are a series of illustrations of HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 59 Page 60 1 various phases of erection of a boiler, 1 Q. Okay. As are the various other items 2 correct? 2 that are listed down the left-hand side of the 3 A. It's primarily the drum raising is 3 first page of Exhibit 7, correct? 4 what they're showing here. That's the first 4 A. Yes. 5 phase. 5 Q. Okay. And is it now your testimony 6 Q. And the heading -- the title of this 6 that the one contract, one responsibility that 7 document says, "Complete Riley Steam Generating 7 Riley is talking about on pages 12 and 13 is 8 Units," correct? 8 only for the boiler element; is that what 9 A. Back on page one. 9 you're telling this jury? 10 Q. Yes, sir. 10 MR. RADCLIFFE: Object to the form. 11 A. Yes. 12 Q. And you just testified that the 13 products that are listed down the left-hand 11 A. No. 12 Q. Okay. 13 A. Because these are the products that we 14 side of the first page are the various elements 14 have some involvement in designing or 15 of those complete Riley steam generating units, 15 specifying. I've personally been on jobsites 16 true? 17 A. I believe Riley steam -- it's the 18 complete boiler. This would be the complete 19 product that Riley would do for the boiler. It 20 would not -- this would not allow the unit to 16 where the owner has said, I want you to erect 17 everything, even if you didn't supply it, that 18 makes up the steam, the boiler. They call it 19 the boiler island, which is all the pieces. 20 And then there's a turbine island, and then 21 run as a steam generating unit by itself. 22 That's the struggle I'm having. 21 there's the balance of plant island. 22 Q. Sure. 23 Q. Okay. Well, a boiler is an element of 23 A. And it's just -- I just don't want to 24 a complete stem generating unit, correct? 24 get overly simplistic, just the boiler, it's 25 A. Yes. 25 just this. There's a lot of pieces here. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 16 (Pages 61 to 64) J. MICHAEL SMITH J. MICHAEL SMITH Page 61 Page 62 1 Q. Sure. And I think you and I are 1 Q. The contract responsibility of Riley 2 talking a little bit at cross purposes. I 2 Stoker frequently included installation, 3 don't think we're disagreeing here. 3 correct? 4 A. Okay. 4 A. It did include sometimes, yes. 5 Q. My point simply is that one of the 5 Q. Okay. Actually, if we look back at 6 ways that Riley marketed itself to its 6 Exhibit 2 that we looked at earlier, you'll 7 customers was that you should buy all of these 7 see, again, this is the 1947 Power magazine 8 elements from us that are listed on the first 8 advertisement, correct? 9 page; that way there will be one undivided 9 A. Yes. 10 responsibility for that entire steam generating 10 Q. Okay. And you see on the second page, 11 unit, including all of those elements. Is that 11 sir, one of the items that Riley is pointing 12 right? 12 out as a reason that so many engineers prefer 13 A. That would be Riley's desire, yes. 13 their products is the flanged air and gas tight 14 Q. Okay. They're pointing out if you buy 14 casing, correct? 15 it all from us, then there's one contract, 15 A. Yes. 16 undivided responsibility, and you only have one 16 Q. Can you tell the jury what the casing 17 person to look to for all of those different 17 is? 18 elements, correct? 18 A. The casing is the -- it can be 19 A. Listed, yes. 19 interior casing and exterior casing on certain 20 Q. Now, we've talked about, and you've 20 components. We have wide space tubes that have 21 mentioned several times that the scope of what 21 -- made for a penthouse or something like that. 22 Riley would do would be determined by whatever 22 Essentially, the casing is put onto the boiler 23 the purchaser wanted, whatever they contracted 23 after you do all the pressure part work, 24 for, correct? 24 including the tubes, etcetera. 25 A. Yes. 25 Then you apply your external setting, HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 63 Page 64 1 insulation, and then you wrap that with a steel 1 Q. Right. And in order to do that, you 2 casing that is fully welded, very similar to 2 put a lot of insulation in the casing? 3 the casing I describe on a stove in your home. 3 MR. RADCLIFFE: Object to form. 4 It seals everything in. And these have to be 4 A. You put the required insulation for 5 totally gas tight. You can't have any leaks in 5 the temperature and conditions required. 6 them for anything to come out of that casing. 6 Q. To use Riley's words, "You heavily 7 So the entire boiler is wrapped in a steel 7 insulate the setting," correct? 8 envelope, so to speak. 8 A. That's what it says. 9 Q. And what this is saying is flanged air 9 MR. RADCLIFFE: Object to form. 10 and gas tight casing. What does the "flange" 10 Q. That's a fair characterization of it, 11 refer to? 11 isn't it? 12 A. That's where you would -- it's a -- 12 MR. RADCLIFFE: Object to form. 13 they're steel panels. To join they would often 13 A. It's relative to the temperature of 14 put a flange on them and weld the flange, and 14 the boiler. I mean, you got some boilers that 15 that's how you sealed it. 15 are upwards of 2,200 degrees; others are down 16 Q. Okay. And this paragraph, again, from 16 to 300 or 400. They're going to have a 17 the 1957 advertisement states, "The heavily 17 different amount of insulation on them. 18 insulated setting minimizes radiation losses," 18 Q. Sure. But they're all going to have 19 correct? 19 insulation? 20 A. Yes. 20 A. Yes. 21 Q. Okay. And radiation is a form of heat 21 Q. Okay. Covering the entire area of the 22 energy, correct? 22 boiler, correct? 23 A. It is heat. They're trying to keep 23 MR. RADCLIFFE: Object to form. 24 the heat in the boiler and away from the people 24 A. The boiler has to be insulated. 25 outside the boiler. 25 Q. Okay. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 17 (Pages 65 to 68) J. MICHAEL SMITH J. MICHAEL SMITH Page 65 Page 66 1 A. Yes. 1 construction of the boiler itself. There's 2 Q. Turning your attention back, sir, to 2 many different versions of boilers. And they 3 Exhibit 7, I'm looking at page three in one of 3 want to do it right the first time so that we 4 the sections. It's the page that looks like 4 don't have to go back and have any maintenance 5 this, sir. This page is talking about the 5 on it. 6 boiler settings for Riley steam generating 6 Because if you have a problem with 7 units, correct? 7 your casing, you're probably going to be -- 8 A. Yes. 8 have the unit come down for repairs because you 9 Q. Okay. And this states that "Boiler 9 cannot operate with gas leaks or with anything 10 settings" -- I'm reading the first paragraph. 10 like that. So they maximize it. They use 11 "Boiler settings for Riley steam generating 11 everything they need to so the customer won't 12 units are designed, engineered and fabricated 12 have problems. 13 to assure permanent air and gas tightness at 13 Q. Okay. And then underneath the 14 all ratings and pressures." And that's what 14 paragraph I just read there are four 15 you were just talking about with the jury, 15 subparagraphs entitled "Effective Expansion 16 correct? 16 Provisions, Construction is Sturdy, Low 17 A. Yes. 17 Radiation Loss and Modern in Appearance," 18 Q. Okay. It says, "Materials used and 18 correct? 19 methods of fabrication employed are selected to 19 A. Yes. 20 meet the maximum in operating requirements and 20 Q. Okay. And again, it says, "low 21 to keep maintenance costs at a minimum." What 21 radiation loss." It's talking about heat loss, 22 does that mean, sir? 22 correct? 23 A. There are many -- as you probably have 23 A. This paragraph is talking about 24 seen, there are many different types of 24 potential heat loss, yes. 25 settings used depending on the type of 25 Q. What that says is, "Adequate thickness HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 67 Page 68 1 of top quality insulating materials used in 1 of what, sir, the top picture on the right-hand 2 Riley settings ensure against radiation loss 2 column? 3 and provide cool external surfaces," correct? 3 A. Could be a picture of that roof 4 A. That's what it says, yes. 4 design, but there's a lot of black in there. I 5 Q. Okay. And so here Riley is indicating 5 don't see any tubes there. 6 that they use only top quality insulating 6 Q. Do you see tubes running diagonally 7 materials, correct? 8 A. That's what it says, yes. 9 Q. You don't have any reason to dispute 7 across underneath the tiles? 8 A. They shouldn't be that far apart on a 9 roof. If your -- I don't see them as tubes. 10 that, do you? 10 That's what you're telling me they are. 11 A. No. 11 Q. No, I'm asking you. If you can't 12 Q. Okay. Now, I just want to walk 12 tell, that's fine. 13 through a few of those paragraphs with you. 13 A. I really can't, but this is -- it 14 The next page, sir, is a continuation, it looks 14 could be a picture of roof design. 15 like, this is entitled "Construction," correct? 15 Q. The next page is talking about the 16 A. Okay. 17 Q. And this indicates that -- the 16 side walls for contingent tubes, and it refers 17 to the high-temperature plastic refractory then 18 standard roof design section says, "The 18 high-temperature block insulation and then 19 standard roof section utilizes a layer of heavy 19 followed again by the mineral wool felt. Do 20 interlocking or 'T' tile covered with a layer 20 you see that? 21 of high-temperature block insulation and a 22 layer of mineral wool felt compressed by a 23 steel roof casing," correct? 24 A. Yes. 21 A. Yes. 22 Q. Then turning to the next page, sir, 23 you see again under "Refractory Supports" it 24 references -- excuse me, sir, do you see under 25 Q. And off to the right we have a diagram 25 "Single Header Hopper Bottom Units" again it HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 18 (Pages 69 to 72) J. MICHAEL SMITH J. MICHAEL SMITH Page 69 Page 70 1 references plastic refractory or interlocking 1 MR. RADCLIFFE: I object to the form. 2 tile backed by a layer of block insulation with 2 It's misleading, and you haven't established 3 mineral wool felt compressed between the block 3 that all boilers are the same. 4 insulation and the steel casing, correct? 4 MR. STUEMKE: Okay. 5 A. Yes. 5 Q. Sir, talking about boilers in general, 6 Q. And what we're seeing here is 6 you said all boilers are insulated, correct? 7 basically the way that the heat of the boiler 7 A. Yes. 8 is prevented from escaping outside into 8 Q. Okay. Now, if you're inside a boiler, 9 whatever facility it's installed in, correct? 9 number one, you hope it's not on, but, number 10 A. What we're seeing here is the 10 two, if you want to look at how that boiler 11 configuration to keep the heat in the boiler 11 prevents heat from escaping into the factory or 12 and to keep it from going out. 12 whatever facility it's in, you indicated that 13 Q. Right. 13 the first level of defense of heat escape would 14 A. Both have to be done to make this an 14 be the tubes; is that right? 15 effective boiler. 15 A. Yes. 16 Q. Okay. And if you're starting inside 16 Q. And that's the function of a boiler is 17 the boiler itself where all the heat is, the 17 to transfer heat from the inside of the boiler 18 first level of defense that you get to as you 18 to the water in the tubes, correct? 19 move outward is the tile, correct? 19 A. Yes. 20 A. Well, the first level is the tubes. 20 Q. Okay. But all the heat is not 21 MR. RADCLIFFE: Objection to form. 21 absorbed by the water in the tubes, correct? 22 Now, are you talking about a specific boiler or 22 A. That's correct. 23 are you just talking in general? 23 Q. Okay. After the tubes what's the next 24 MR. STUEMKE: I'm talking boiler 24 layer that you come to in terms of what 25 design in general. 25 prevents the heat from escaping? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 71 Page 72 1 A. It depends on the construction of the 1 A. Yes. 2 boiler. 3 Q. And also the area of the particular 4 boiler you're looking at, correct? 2 Q. "4M5" and then "57" at the end? 3 A. That's what it says. 4 Q. You understand that to refer to a 5 A. Yes. 6 Q. Okay. 7 A. You have many different tube 5 print date of 1957? 6 A. No. I don't know what that means. It 7 says printed, but I don't know if that means -- 8 configurations depending on what area of the 8 what's 4M? It's not the fourth month because 9 boiler you're in, what year the boiler was 10 designed. As design moves forward, you 9 then you have a five and that would have been 10 May '57. And this is the first -- that's the 11 progress. And the in '60s they were getting to 11 first -- I can't count how many pieces we have 12 the point where they were getting into welded 12 in this package, but it looks like there is as 13 wall construction. And we have no date on this 13 least three or four. 14 document, so I have no idea when this document 14 Q. Okay. 15 came out. 15 A. Maybe five. 16 Q. Okay. Let me just address that real 16 Q. In your review of this document, you 17 quick, sir. 17 didn't see anything that was inconsistent with 18 A. I don't know whether this was '40s, 18 the way Riley Stoker boilers were designed and 19 '50s, '60s, '70s. 19 erected in the 1950s, did you? 20 Q. There is actually a print date. If 20 A. I wasn't there in the '50s. I've 21 you go back toward the front of the exhibit by 21 worked on boilers that were erected in the 22 one, two, three, four, five, six, seven, you 22 '50s. 23 come to this page. Do you see at the bottom 23 Q. Okay. You didn't see anything in here 24 right it says, "Printed in the U.S.A." Do you 25 see that? 24 that was inconsistent with that, correct? 25 A. No. It's a wide variety of different HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 19 (Pages 73 to 76) J. MICHAEL SMITH J. MICHAEL SMITH Page 73 Page 74 1 applications that Riley could produce. 1 A. There they would just put a tile 2 Q. Okay. So getting back to the question 2 behind them, and then they go multiple layers 3 of what one encounters as one moves outward 3 because you cannot have any joints that line up 4 from the boiler to the facility in which it's 4 because that would be an escape route for 5 installed, you first come to the tubes. Next 5 gases. So you would offset on three different 6 you'll come to some type of a refractory 6 layers, and then you put the gas tight casing 7 material, either a refractory cement or a brick 7 on the outside. 8 or something of that nature, correct? 8 Q. Okay. And the multiple layers you're 9 A. It will be an insulating cement or 9 referring to are what? 10 insulating brick. It will not be a refractory. 10 A. Well, the ones that they're showing 11 The outside of the boiler is insulation. Once 11 here essentially is a plastic refractory, 12 again, where I was going with it, it depends on 12 high-temp block insulation, mineral wool and 13 the configuration of the tubes. Like in the 13 then the steel casing. 14 '60s the first line was the tubes themselves, a 14 Q. Okay. Sir, if you turn to page nine 15 fin welded between them and that was it. After 15 in this section which looks like this -- 16 that we just had mineral wool and casing, real 16 A. (Witness complies) 17 simple. That was all that was done. All this 17 Q. There you go. There's a paragraph at 18 evolved over the years. 18 the top headed "Minimum Radiation Loss," 19 Q. Sure. 19 correct? 20 A. And these here are showing tangent 20 A. Yes. 21 tubes which is not the same thing as a welded 21 Q. Okay. And they talk about the 22 wall. A tangent tube essentially is supposed 22 efficiency of the insulation that is done on 23 to touch, but they're very, very, very, very 23 Riley's settings, correct? 24 close. 24 A. They are talking about the 25 Q. Sure. 25 efficiencies. I see it's a factual chart of HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 75 Page 76 1 the tile face temperature and the outside 1 111 degrees respectively, correct? 2 casing temperature. 2 A. That's what the chart shows, yes. 3 Q. Okay. And in this chart when it says 3 Q. So what that demonstrates to us that 4 "tile face temperature," that's the temperature 4 the -- number one, the insulation that Riley 5 of the air and gases and whatnot inside the 5 Stoker is using was effective in reducing the 6 boiler that reaches the first surface of the 6 outside casing temperature of the boiler to 7 tile, correct? 7 what is a safe and workable level outside the 8 A. If that's the configuration. 9 Q. Right. 8 boiler; is that fair? 9 A. Yes. 10 A. Yes. 10 MR. RADCLIFFE: Object to the form. 11 Q. But that's what the chart's referring 11 Q. And reducing the outside casing 12 to? 12 temperature to a safe and workable level was 13 A. I've never seen this before, so I 14 really don't know. 13 something that's necessary in order to actually 14 utilize a boiler in a plant, correct? 15 Q. That's the reasonable reading of the 15 A. It's necessary for personal safety. 16 chart, correct? 16 Q. Okay. And that's engineering that is 17 A. It could be a reasonable reading, yes. 17 performed by Riley Stoker in order to determine 18 Q. This refers to if the tile face 18 the amount of insulation that's necessary given 19 temperature is 1,600 degrees Fahrenheit, 2,000 19 the configuration of the boiler to reduce the 20 degrees Fahrenheit or 200 degrees Fahrenheit, 20 outside casing temperature to a safe level, 21 then the temperature of the outside casing 21 correct? 22 which is, you know, after the high-temp 22 A. No. 23 insulating block, after the mineral wool, the 23 MR. RADCLIFFE: Object to the form. 24 temperature of the outside casing itself is 24 A. I don't agree with that. Riley Stoker 25 reduced to 103 degrees, 109 degrees and 25 would come up with a configuration like we HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 20 (Pages 77 to 80) J. MICHAEL SMITH J. MICHAEL SMITH Page 77 Page 78 1 looked at earlier that this will be ASME code. 1 in terms of thickness and whatever else needed 2 It will be -- it will do this, this, the 2 to be put between the inside of the boiler and 3 customer's spec, whatever it is. Then this is, 3 the outside to reduce the casing surface 4 okay, the way we want to do it, and everyone 4 temperature to a safe level, correct? 5 agrees. Then they go to the insulation people 5 A. No. 6 and say, What do you have that will do this 6 MR. RADCLIFFE: Objection. Asked and 7 job? We want to do some block here. We want 7 answered. 8 to use mineral wool here, whether the 8 A. No. The thickness of insulation was 9 thickness. What do we need to do? And that's 9 determined by the insulation manufacturers. We 10 how it would be done because we didn't design 10 told them what we wanted to do. We want to put 11 the insulation. 11 -- what the characteristics of the material 12 Q. Okay. 12 were as far as is it hard; is it soft, whatever 13 A. We came up with the configuration to 13 it was. And we want to reduce temperature from 14 safely protect the boiler in and boiler out, 14 A to B. And they came back and told us what to 15 but the design of the actual insulation was the 15 put in there. They designed the insulation and 16 responsibility of the insulation companies, the 16 the thickness, etcetera. 17 refractory companies or whatever it was. They 17 Q. Okay. So are you telling the jury 18 gave us what they would put in that 18 that Riley Stoker engineers, whenever they were 19 application. 19 designing a boiler, sent letters to insulation 20 Q. Okay. 20 manufacturers saying, How thick do I need to 21 MR. STUEMKE: I'm going to object as 21 make the insulation? 22 nonresponsive. 22 A. No. 23 Q. I think you're hearing a different 23 Q. Now, if Riley Stoker was responsible 24 question than what I asked. My question, sir, 24 for insulation in their contract, Riley Stoker 25 is: Riley Stoker decided how much insulation 25 would either subcontract the work out to an HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 79 Page 80 1 insulation contractor or hire employees 1 A. Yes. 2 directly from the union hall to do that work, 2 Q. But you would agree that even if the 3 correct? 4 A. Would you repeat that? I'm sorry. 5 Q. Yes, sir. In the case of when Riley 6 Stoker contracts to sell a boiler, if they're 7 responsible under that contract for the 3 customer selected their own erector, Riley 4 Stoker would always have representatives 5 on-site to supervise the construction of 6 boiler, correct? 7 A. Not always -- 8 insulation, there would be one of two ways that 8 9 Riley Stoker would go about fulfilling that 9 10 obligation. Either they would subcontract the 10 MR. RADCLIFFE: Objection to form. A. -- no, no. Q. Are you familiar with Harold Ritter? 11 work out to an insulation contractor or they 12 would go down to the union hall and hire 13 employees directly from the hall to do the 11 12 13 A. Yes. Q. Who is Harold Ritter? A. He worked at Riley for quite a while. 14 insulation work, correct? 14 I knew him for a few years, quite a few years 15 MR. RADCLIFFE: Object to form. 15 before he retired. 16 A. Those are two ways, yes. 16 Q. He started working for Riley when, 17 Q. Okay. It's true that Riley Stoker did 17 sir? 18 not field erect all the boilers it sold, 18 A. I don't know. I did or he did? 19 correct? 20 A. We did not do the erection on all the 19 Q. I'm sorry, Mr. Ritter started working 20 for Riley when? 21 boilers, no. 21 A. I have no idea. 22 Q. Okay. Riley Stoker erected some of 23 the boilers, but in some circumstances the 22 Q. You understand that Mr. Ritter has 23 been deposed on behalf of Riley Stoker in 24 customer would chose to use a different 24 asbestos litigation, correct? 25 erector, correct? 25 A. I've been told that he was deposed. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 21 (Pages 81 to 84) J. MICHAEL SMITH J. MICHAEL SMITH Page 81 Page 82 1 Q. Okay. You've never read any of his 1 that question, sir? 2 deposition transcripts? 2 A. Can I see that again? 3 A. No. 3 MR. RADCLIFFE: I object to form. 4 Q. Okay. Sir, I'm going to show you a 4 It's improper impeachment. Go ahead and 5 portion of the deposition transcript of Riley 5 answer. 6 Stoker Corporation through its designee Harold 6 A. I have no idea why he said this, but I 7 Ritter that was taken March 5, 2003. I show 7 know for a fact that there was many boilers we 8 you first the front page. Do you see this is 8 had no one there when the boilers were erected. 9 the deposition of Riley Stoker Corporation 9 I also was project manager, though, who was 10 through its designee Harold Ritter? 10 responsible for a lot of these and ran 11 A. Yes. 11 divisions. So I possibly had some more 12 Q. Okay. Then you see March 5, 2003, 12 experience than he did. He was inside 13 correct? 13 engineering. 14 A. Yes. 14 Q. Would you change Mr. Ritter's 15 Q. Okay. And I'm turning, sir, to page 15 testimony as the designee of Riley Stoker to be 16 19 of the transcript. Do you see here starting 16 that Riley Stoker frequently would have 17 on line 7, "If the customer selected their own 17 representatives on-site to supervise the 18 erection company, did Riley Stoker send 18 construction of the boiler by a different 19 representatives to the field to supervise the 19 company? 20 construction of the boiler?" There's an 20 A. You're saying -- 21 objection, and then the answer is, "Yes, they 21 MR. RADCLIFFE: The witness is not 22 did." Do you see that? 22 here to change Mr. Ritter's testimony. You're 23 A. Yes. 23 free to ask him a question, and he'll give the 24 Q. Do you have any reason to change the 24 answer, but he's not here to change testimony. 25 testimony of Riley Stoker today with respect to 25 MR. STUEMKE: For the record, it's HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 83 Page 84 1 Riley Stoker's testimony, not Mr. Ritter's. 1 asbestos components that were historically 2 MR. RADCLIFFE: It is a witness; it is 2 incorporated within Riley steam generating 3 a person. He's not here to change this 3 units. Historically, Riley Stoker incorporated 4 person's testimony. 4 gaskets, correct? 5 A. I know that it's certain jobs that 5 MR. RADCLIFFE: Object to form. 6 Riley Stoker sold that we did not have 6 Q. Strike that. 7 representatives on-site during the erection or 7 Historically, Riley Stoker steam 8 startup of the boilers. 8 generating units incorporated 9 Q. Okay. Most of the time they did? 9 asbestos-containing gaskets, correct? 10 A. A majority of the time they did. 10 MR. RADCLIFFE: Object to form. 11 MR. RADCLIFFE: Object to form. 11 A. We had gaskets on certain components 12 Q. Okay. And just for the record and 12 of the boiler. 13 because of the objection, the majority of the 13 Q. That contained asbestos? 14 time when a Riley Stoker boiler was being 14 A. Some might have contained -- some did 15 erected by some other company, Riley Stoker 15 contain asbestos, others did not. 16 representatives were on-site to supervise the 16 Q. But on every Riley Stoker steam 17 erection, correct? 17 generating unit sold at least before the mid 18 MR. RADCLIFFE: Object to form. 18 1980s, there would have been 19 A. Depended on the contract. 19 asbestos-containing gaskets, true? 20 Q. Based on your experience, the majority 20 A. I don't know. 21 of the time there was a Riley Stoker 21 MR. RADCLIFFE: Object to form. 22 representative on-site, true? 22 Q. Are you aware of a single Riley Stoker 23 A. Majority being more than 50 percent, 23 boiler that was ever sold before the mid 1980s 24 yes. 25 Q. Sir, I want to ask you about the 24 that did not include at least one 25 asbestos-containing gasket? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 22 (Pages 85 to 88) J. MICHAEL SMITH J. MICHAEL SMITH Page 85 Page 86 1 A. I don't know because some of the 1 MR. RADCLIFFE: Object to form. 2 gaskets were not labeled in the contracts I 2 A. Riley Stoker units erected prior to 3 reviewed. I've seen many jobs where they want 3 the '80s where we supplied the refractory and 4 stainless steel all through on the areas that 4 insulation might have contained asbestos rope. 5 later that -- other times you've seen asbestos 5 Q. Might have or did? 6 labeled gasket. You've seen Flexitallic. So I 6 MR. RADCLIFFE: Object to the form. 7 don't know every single job definitely had an 7 Asked and answered. 8 asbestos gasket. 8 A. Might have. 9 Q. Okay. 9 Q. Can you identify a single Riley Stoker 10 MR. STUEMKE: And I'll object as 10 stem generating unit sold before the mid 1980s 11 nonresponsive. 11 that did not contain asbestos rope? 12 Q. I'm actually asking you, sir, whether 12 A. By name, no. 13 you can identify for the jury a single Riley 13 Q. Historically, Riley Stoker steam 14 Stoker steam generating unit sold before the 14 generating units incorporated 15 mid 1980s that did not include an asbestos 15 asbestos-containing packing, correct? 16 gasket? 16 A. No. Packing as far as valves? 17 A. No. 17 Q. Within the steam generating unit, sir? 18 Q. Riley Stoker steam generating units 18 A. In the steam generating unit, we 19 historically incorporated asbestos-containing 19 didn't make anything with it. The only way it 20 rope, correct? 20 could have been there if someone put it in 21 MR. RADCLIFFE: Object to form. 21 their valve that we bought. 22 Q. Strike that. 22 Q. Sir, Riley Stoker doesn't dispute that 23 Riley Stoker steam generating units 23 its steam generating units historically 24 historically incorporated asbestos rope, 25 correct? 24 contained asbestos packing, do they? 25 MR. RADCLIFFE: Object to the form. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 87 Page 88 1 A. I've never had it asked that way so 1 A. That's what I read. 2 I'm -- some of the pieces of equipment that we 2 Q. Do you have any reason to tell this 3 had on the boiler such as valves might have 3 jury that Mr. Ritter was wrong when he 4 contained asbestos packing. 4 testified to this in 2002? 5 Q. I'm going to show you, sir, another 5 A. I don't know what he was talking 6 deposition of Mr. Ritter, this one taken 6 about. 7 February 6, 2002. And I will point your 7 MR. RADCLIFFE: Object to form. 8 attention, sir, to page 23. There's a question 8 Q. So apparently Mr. Ritter knows things 9 and answer that's highlighted. Would you 9 about these boilers that you don't; is that 10 please read that? 10 fair? 11 MR. RADCLIFFE: I object to the form 11 A. That's not what I said. 12 of this. It seems to me you're trying to 12 MR. RADCLIFFE: Object to form. 13 impeach him with the testimony of a different 13 A. That's not what I said. It's not what 14 witness. Go ahead. 14 I said. There's a whole series leading up to 15 A. This is only question out of a whole 15 that, and I don't know what it was. 16 series of discussions. I do not know what he 16 Q. Okay. 17 was answering when he said this. 18 Q. Well -- 17 A. I wasn't there, so I can't comment on 18 that. 19 A. I really can't comment on it. 20 Q. The question that's highlighted is, 19 Q. Okay. And you've given now, this is 20 your 19th deposition as testifying on behalf of 21 "So from 1953 to 1972 you had an understanding 21 Riley Stoker in these cases, correct? 22 that asbestos packing and asbestos gaskets were 22 A. It's the 19th case I've testified, 23 being used in connection with the boilers that 23 some with doubles. 24 you were designing for Riley Stoker?" And his 24 Q. Okay. And in all that time you've 25 answer was, "Yes," correct? 25 never read the previous testimony of Riley HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 23 (Pages 89 to 92) J. MICHAEL SMITH J. MICHAEL SMITH Page 89 Page 90 1 Stoker corporate designees, correct? 1 on behalf of Riley Stoker have never given this 2 A. That's correct. 2 to you, have they? 3 Q. Okay. So when you say to this jury 3 A. No. 4 now, Well, I don't know what he is talking 4 MR. RADCLIFFE: Object to form. 5 about because there's all these other questions 5 Q. You've known that Mr. Ritter gave 6 and answers that are there, it's not because 6 testimony from very early on when you started 7 you haven't had a chance to look at this, 7 giving testimony, correct? 8 correct? 8 A. Rephrase that, please. 9 MR. RADCLIFFE: Object to form. 9 Q. Okay. Before you gave your first 10 A. I just don't agree with that 10 deposition in an asbestos case for Riley 11 statement. He could be calling asbestos rope 11 Stoker, you knew that Mr. Ritter had already 12 packing versus valve packing which is a totally 12 done that, correct? 13 different thing. That's why I said I don't 13 A. I knew he had been working with the 14 know what he was talking about. 14 lawyers. 15 Q. Okay. But I want the record to be 15 MR. RADCLIFFE: Object to form. 16 clear. When you point out that there's all 16 A. I did not know exactly what he had 17 this other stuff in here, you don't know what 17 done. 18 he is saying, it's not because you haven't had 18 Q. In all that time you've never once 19 plenty of time to look at this if you wanted 19 asked to see what he said? 20 to, right? 20 A. No. 21 MR. RADCLIFFE: Object to form. 21 Q. If Mr. Ritter testified he started 22 A. It was never given to me to look at. 22 working for Riley Stoker in 1953, you don't 23 Q. You've never asked anybody for it? 23 have any reason to dispute that, do you? 24 A. No. 24 A. Don't -- I have no reason to say 25 Q. The lawyers that you're working with 25 anything about it. I don't know. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 91 Page 92 1 Q. Okay. So let's assume that he did 1 Q. Which ones? 2 testify to that -- and I can show you that if 2 A. I don't know. You'd have to go back 3 you'd like -- that would mean that he was 3 to the manufacturers. I read the abstracts, 4 working at Riley Stoker 20 years longer than -- 4 and some of them they said in all the years 5 20 years earlier than you were, correct? 5 they made refractory they had a handful that 6 A. Yes. 6 might have contained a small amount of asbestos 7 Q. Okay. And that 20-year period from 7 for a period. And for two or three of them, 8 '53 to '73 that's a time period that you've 8 don't remember them offhand, but not all 9 been asked about an awful lot since you started 9 refractory had asbestos in it. 10 being deposed in asbestos cases for Riley 10 Q. What abstracts are you talking about? 11 Stoker, correct? 11 A. I have to use the right terminology. 12 A. Yes. 12 Harbison Walker answers to plaintiffs 13 MR. RADCLIFFE: Object to form. 13 interrogatories, Massachusetts; Harbison-Walker 14 Q. And you've never once looked at what 14 response to plaintiff's master interrogatories, 15 he said to find out what he knew from that time 15 Rhode Island; Johns Manville answers to 16 frame, correct? 16 plaintiff's interrogatories, Texas; Keene 17 A. I've never read his depositions. 17 Corporation answers to interrogatories, Mass.; 18 Q. It's true that historically Riley 18 A.P. Green Industries answers to plaintiff's 19 Stoker steam generating units included 19 revised standard interrogatories, Mass. Those 20 asbestos-containing refractory materials, 20 are the ones I'm referring to. 21 correct? 21 Q. Okay. For the record, you referred to 22 MR. RADCLIFFE: Object to form. 22 a three-ring binder you've brought with you to 23 A. Some of the units, some of the 23 this deposition, correct? 24 material possibly contained small amounts of 24 A. Yes. 25 asbestos in refractory products. 25 Q. Okay. And there is a sheet of paper HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 24 (Pages 93 to 96) J. MICHAEL SMITH J. MICHAEL SMITH Page 93 Page 94 1 affixed to the front of that notebook, correct? 1 the notebook as exhibit -- I think we're up to 2 A. Yes. 2 8. 3 Q. And what does that say? 3 (Exhibit No. 8, Three-Ring Binder so 4 A. "Deposition materials property Mike 4 marked) 5 Smith." 5 THE WITNESS: Can we take a break? 6 Q. Okay. Where did you get these 6 THE VIDEOGRAPHER: The time is 12:08. 7 deposition materials, sir? 7 We're off the record. 8 A. Combination of from the Riley 8 (Recess 12:09 p.m. to 12:14 p.m.) 9 attorneys and different cases when issues would 9 THE VIDEOGRAPHER: We're back on the 10 come up and we'd do some research. 10 record. The time is 12:14. 11 Q. Okay. Are there any materials 11 BY MR. STUEMKE: 12 contained within this binder that did not come 12 Q. Before the short break we had been 13 from Riley Stoker's attorneys? 13 talking a little bit about the materials in 14 A. Most of them did come from the Riley 14 your binder. That came out because I'd asked 15 attorneys. 15 you about asbestos-containing refractory 16 Q. There's an index that you've referred 16 materials. So the record is clear, it sounds 17 to. How many items are on that index, sir? 17 like what you're saying is that some asbestos 18 A. Thirty-one. 18 -- so the record is clear, it sounds like what 19 Q. Okay. Can you identify any of those 19 you're saying is that some refractory materials 20 31 items that you received from somebody other 20 historically contained asbestos and others did 21 than attorneys working for Riley Stoker in 21 not; is that fair? 22 asbestos litigation? 22 A. And at various times in the 23 A. No. 23 manufacturing in the life process of the 24 Q. Okay. 24 product. 25 MR. STUEMKE: Let's go ahead and mark 25 Q. Right. And they stopped containing HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 95 Page 96 1 asbestos at some point in time? 1 MR. RADCLIFFE: Object to form. 2 A. Yes. Pretty much all '72, if they had 2 A. I don't agree with that. 3 it at all. 4 Q. And today you are aware that 3 Q. Sir, you're aware today that certain 4 diatomaceous earth insulation products utilized 5 high-temperature insulation that was utilized 5 asbestos as a binding agent, correct? 6 in Riley Stoker boilers prior to 1972 at least 6 A. I don't know that. I haven't got into 7 contained asbestos, correct? 8 A. Some of it might have contained 7 that one. 8 Q. That's a new one for you? 9 asbestos. 9 A. Yes. 10 MR. RADCLIFFE: Object to the form. 10 Q. You're aware that insulating cement 11 Q. You're aware that 85 percent magnesia 11 prior to 1972, at least as utilized in Riley 12 thermal insulation products utilized in Riley 12 Stoker boilers, contained asbestos, correct? 13 Stoker boilers prior to 1972 contained 13 MR. RADCLIFFE: Object to form. 14 asbestos, correct? 14 A. I don't know which cements might or 15 A. I'm aware -- 15 might not have contained asbestos. 16 MR. RADCLIFFE: Object to the form. 16 Q. Okay. You know that some of them did, 17 A. -- up until that, yes. 17 correct? 18 Q. You're aware that calcium silicate 18 A. I've been told that. 19 thermal insulation products prior to 1972 20 contained asbestos, correct? 21 A. Yes. 19 MR. RADCLIFFE: Object to form. 20 Q. Do you know of any high-temperature 21 insulating cements before 1972 did not contain 22 Q. And both of those types of insulation 22 asbestos? 23 were specified for use on Riley Stoker boilers 23 A. I don't know. 24 by Riley Stoker, correct? 25 A. Not. 24 MR. RADCLIFFE: Object to form. 25 Q. Okay. You don't know of any, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 25 (Pages 97 to 100) J. MICHAEL SMITH J. MICHAEL SMITH Page 97 Page 98 1 A. I don't know the answer. 1 did not have any awareness that there was 2 Q. Now, in some of your previous 2 asbestos insulation." I'm reading that from 3 depositions you've testified that until 1972 3 page 27 there, sir. 4 nobody at Riley Stoker had any idea that 4 MR. RADCLIFFE: Is there a question? 5 thermal insulation had asbestos in it? 5 MR. STUEMKE: I'm letting him review 6 MR. RADCLIFFE: Object to form. It 6 it. 7 misstates his prior testimony. 7 A. Okay. 8 Q. Okay. Sir, does that -- did I in some 8 Q. Did I read that question and answer 9 way misstate what you've previously testified? 9 correctly, sir? 10 A. I would like you to re-ask that, 10 A. Yes. 11 please. 11 Q. Okay. Now, it's your testimony in 12 Q. Okay. Do you remember being deposed 12 2006 was that prior to OSHA Riley Stoker did 13 on March 10, 2006, in a case called Pretco 13 not have awareness there was asbestos 14 pending in the district court in Harris County, 14 insulation? 15 Texas? 15 A. Yes. 16 A. Yes. 16 Q. Correct? Is that still your testimony 17 Q. I'll show you this in just a second. 17 today, sir? 18 I just want to read it for the record. On page 18 MR. RADCLIFFE: Object to the form. 19 27 starting at line 12 in this deposition the 19 A. The people at Riley that I talked to 20 question is: "Well, you said you got to Riley 20 and myself personally prior to '72 were not 21 in '73, and you got this impression somehow 21 aware that insulation we were using was 22 that everybody was clueless that there was 22 potentially hazardous on our boilers because of 23 asbestos in insulation. That's the impression 23 asbestos. 24 I got from your testimony." And your answer 24 Q. Okay. 25 was: "Prior to -- prior to OSHA it did -- we 25 MR. STUEMKE: Now, I'll object as HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 99 Page 100 1 nonresponsive. 1 different groups. What happened is you'd get 2 Q. Sir, are you telling the jury in this 2 together, you start the design process. And 3 case that before 1972 Riley Stoker had no idea 4 that the insulation on its boiler contained 3 you get together with different groups to go 4 through the process, and that's where this 5 asbestos? 6 A. Riley Stoker is made up of many 5 asbestos thing kept coming up. And that's why 6 I say I can't put a number on it. The company 7 people. I don't know what every single person 7 had hundreds of people involved in the 8 knew or did not know. As a general rule, the 8 engineering and design at that point in time. 9 people I worked with when I got there had no 9 Q. Okay. 10 knowledge it had been asbestos until OSHA came 10 A. So I can't give a real number. 11 out and they were told stop using any 11 Q. You didn't poll those people to say, 12 asbestos-containing insulation or refractory 12 Hey, did you know this had asbestos in it? 13 material. That's what I was told when I got 13 A. No. What we did -- the basis for that 14 there. 14 statement, and it's labeled in there later on 15 Q. Okay. So you said as a general rule, 16 the people you worked with you don't believe 15 in that testimony, is that we did a lot of work 16 on these old boilers in one of my roles there 17 knew insulation had asbestos? 18 A. Right. 17 in the plant improvement M&R division. And we 18 had to go back. And what we used to do is when 19 Q. Okay. How many people is that? 19 we got the boiler drawings, we'd go back to the 20 A. Excuse me, we're going back 37 years, 20 squad leader -- at that time most of them were 21 36 years. 21 still there -- we'd ask them about this since 22 Q. I was born in '72 so I can tell you 22 we knew we can't use asbestos. Did this have 23 it's 36 years, 37 depending on what part of the 23 asbestos? And the answer always was, We don't 24 year. 24 know. That is why I said that. We don't know. 25 A. There was a lot of people. There were 25 So we would always go out and tell the HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 26 (Pages 101 to 104) J. MICHAEL SMITH J. MICHAEL SMITH Page 101 Page 102 1 customer, If you want us to work on that, you 1 objection. Once you start to ask the same 2 got to abate it. They were doing that anyway 2 question over and over again, it's harassment. 3 after '72. That wasn't something we started. 3 MR. STUEMKE: That's a different one 4 The customers were doing it. The premises 4 than you said before. Now I am harassing the 5 owners were doing it. 5 witness? 6 MR. STUEMKE: Object as nonresponsive. 6 MR. RADCLIFFE: I said asked and 7 Q. Sir, can you tell this jury that 7 answered. You asked it, and he answered it. 8 before 1972 Riley Stoker the company had no 8 MR. STUEMKE: Well, I objected because 9 knowledge that the insulation it was using on 9 his answer was nonresponsive which makes it 10 its boilers contained asbestos? 10 previously asked but not previously answered if 11 A. Riley Stoker -- 11 you really want to go down this road on the 12 MR. RADCLIFFE: Object. Asked and 12 record. 13 answered. If you want the court reporter to 13 Q. In any event, sir, you can answer the 14 read it back, we can have that done. 14 question. 15 MR. STUEMKE: Tom, again, you're 15 MR. RADCLIFFE: That is not accurate. 16 coaching the witness. I'd ask that you stop 16 You asked the question two or three times ago. 17 that. 17 You then asked a different question to which 18 MR. RADCLIFFE: By saying that it's 18 you objected as nonresponsive. Go ahead and 19 been asked and answered you think that's 19 answer. 20 coaching the witness? 20 A. Now I've forgot the question. 21 MR. STUEMKE: It's a different 21 Q. I will ask it again. Mr. Smith, do 22 question, Tom. Let him answer, please. You 22 you intend for this jury to understand that 23 can just restrict your objection to the legal 23 before 1972 Riley Stoker did not know that the 24 objection. Let's try that. 24 thermal insulation that was being used on its 25 MR. RADCLIFFE: This is a legal 25 boilers contained asbestos? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 103 Page 104 1 MR. RADCLIFFE: Same objection. 1 insulation had asbestos in it, correct? 2 A. Riley Stoker is made up of people. 2 MR. RADCLIFFE: Object to the form. 3 They are the company. And the people I worked 3 A. In response to direct questions about 4 with who have been working there for a long 4 that over a period of many years, no one 5 time when this issue came up in '72 -- in '73 5 responded they knew. 6 when I was there, they did not know that there 7 was asbestos in the insulation that we were 6 7 Q. Who did you ask? A. I've already answered that. 8 using. 8 Q. Okay. You just said -- I thought you 9 That is the basis for my answer in 10 that deposition, and it's the basis today. No 9 just said that you never went out and sought 10 out employees of Riley Stoker from the '50s and 11 one that I've ever run into who said, yeah, I 11 '60s to ask them if they knew that insulation 12 know we had asbestos and we did it -- we knew 12 had asbestos in it, correct? 13 it. I just haven't run into anybody. After 13 A. No. I said already that we were 14 the fact we all became suspicious and basically 14 working on old contracts, and we went to the 15 kept away from insulation pre '72. 15 employees who were listed on the drawing and 16 Q. Okay. You say you've never run into 16 asked them if it had asbestos, and their answer 17 anybody that's told you that. Have you gone 17 they didn't know. 18 and asked Riley Stoker employees from the '50s 18 Q. Okay. The draftsmen you're talking 19 and from the '60s whether they knew if the 19 about? 20 insulation was being used on those boilers had 20 A. Drafting, engineers, whoever it was 21 asbestos in it? Have you gone out and asked 21 that was listed on the drawing, squad leaders, 22 them? 22 whatever. 23 A. No. 23 Q. Okay. Now, you've never looked for 24 Q. So just by happenstance nobody has 24 documents of Riley Stoker from the '50s and 25 come up to you and volunteered, hey, I knew 25 '60s and the '40s and '30s to see if those HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 27 (Pages 105 to 108) J. MICHAEL SMITH J. MICHAEL SMITH Page 105 Page 106 1 documents indicate that Riley Stoker knew the 1 Q. Okay. But, sir, you understand and 2 insulation that was specifying for its boiler 2 the notice shows we noticed this deposition of 3 had asbestos in it, correct? You've never 3 Riley Stoker, and this jury wants to hear what 4 looked for those documents? 4 Riley Stoker knew, not just what one individual 5 MR. RADCLIFFE: Object to form. 5 at Riley Stoker learned starting in 1973. And 6 A. No, I had no reason to. 6 that's why you're here today, sir, is to tell 7 Q. In this your 19th deposition in an 7 this jury what Riley Stoker knew. Is it true, 8 asbestos case, you're telling this jury you had 8 sir, that in attempting to do that you have 9 no reason to go and look for documents about 9 not -- 10 whether Riley Stoker knew the insulation it was 10 MR. RADCLIFFE: Object. 11 providing contained asbestos? 11 Q. -- looked for any document that would 12 MR. RADCLIFFE: Objection to form. 12 answer that question? 13 A. I'm responding to these questions 13 MR. rAdCLIFFE: I'm going to object. 14 based on my knowledge and my experience at 14 That's not a question. That's a speech on your 15 Riley Stoker. 15 part. You have to ask a question. 16 Q. Okay. You've not attempted to do 16 MR. STUEMKE: I did. If you would 17 anything to learn about what Riley Stoker knew 17 have let me finish, you would have heard it. 18 or didn't know about the content of its 18 Q. You can answer the question, sir. I'm 19 insulation products other than just relying on 19 sure you heard it. 20 your own personal experience, correct? 20 MR. RADCLIFFE: I'm going to have to 21 MR. RADCLIFFE: Object to form. 21 ask it be read back. 22 A. I've already answered that. I'm 22 (Question read) 23 answering based on my knowledge from my 23 MR. RADCLIFFE: I'm not sure what that 24 experience and my interaction with other Riley 24 question means. You've not looked for any -- I 25 employees. 25 object to the preamble. It's a speech. It's HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 107 Page 108 1 not part of the question, and the question 1 Q. The question of whether Riley Stoker 2 appears to be you haven't looked for any 2 knew the insulation being used on its boilers 3 documents to answer the question. What 3 before 1972 contained asbestos; that question 4 question? 4 has come up a lot of times in your prior 5 Q. You can answer the question, sir. 5 testimony, correct? 6 A. I never saw that document before 6 A. Yes. 7 today. That's all I can tell you. I was asked 7 Q. Okay. 8 to come here and answer questions; that's what 8 MR. RADCLIFFE: Object to form. 9 I've done. I had not seen this document. 9 Q. Still to this day you have never gone 10 Q. Okay. 10 and looked for any documents at Riley Stoker 11 A. You asked me about that. I didn't 11 that would tell you whether Riley Stoker knew 12 know about it. I didn't see it until you gave 12 the insulation it was using contained asbestos 13 it to me. 14 Q. For the record, when you say "that 13 or not, correct? 14 MR. RADCLIFFE: Object to form. 15 document," you're referring to the notice of 15 A. I have not done that. 16 deposition? 16 Q. Okay. And you have not asked Riley 17 A. Yes. 17 Stoker's lawyers to find for you former 18 Q. Riley Stoker's lawyers never showed 18 employees of Riley Stoker from the '50s and 19 you that? 19 '60s that actually worked with this insulation 20 A. No. 20 so that you could ask them if they knew it 21 Q. Now, this question has come up before 21 contained asbestos or not, have you? 22 in prior depositions you've given for Riley 22 A. I've asked that through the course of 23 Stoker, correct? 23 my employment there. That's what I'm telling 24 A. Which question? 24 you. 25 MR. RADCLIFFE: Object to form. 25 MR. RADCLIFFE: Object to form. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 28 (Pages 109 to 112) J. MICHAEL SMITH J. MICHAEL SMITH Page 109 Page 110 1 A. That's exactly what we did when we had 1 until '73, and I was supervising insulators and 2 boilers from the '50s, the '40s, '50s. When we 2 I didn't know it. I was hands-on, and I did 3 first started, they still had some of the same 3 not know it. It was not something that was 4 people there. And the issue -- this was just 4 talked about. It wasn't -- someone knew. I'm 5 now getting real hot '72, '73 about asbestos. 5 not saying that someone somewhere in some 6 And every time we got into one of these jobs, 6 company didn't know this. 7 we had to research it, and we could never find 7 But the day-to-day people who worked 8 any documentation. 8 in this, I mean, I was supervising insulators 9 Q. Okay. And you're talking about people 9 in the field, and I didn't know it had 10 in the engineering department, right? 10 asbestos. Even if it did, I didn't know what 11 A. People in engineering, the paperwork, 11 asbestos -- what the problem was. 12 which was probably a little more fresh than it 12 Q. Okay. 13 is today after 60 years in some of these cases. 13 A. I was personally involved and didn't 14 The only answer we had was we got to go test 14 know it. 15 it. 15 Q. Sir, you would agree that you really 16 Q. You had a construction division, 16 don't have any basis to tell this jury what 17 right? 17 Riley Stoker knew about asbestos and insulation 18 A. Yes. 18 in the 1950s, do you? 19 Q. The people would actually go out there 19 MR. RADCLIFFE: Object to form. 20 and build the boilers? 20 A. I just answered that. I've talked to 21 A. Right. 21 people who were working there and doing the 22 Q. Did you ever ask anybody in the 22 drawings in the 1950s on existing boilers and 23 construction division whether they knew if the 23 they didn't know. That's the basis for my 24 insulation they were using contained asbestos? 24 answer. 25 A. No, because I had been in construction 25 Q. Now, in this same deposition in the HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 111 Page 112 1 Pretco case in 2006 you were asked this 1 at that time was, "I do not." And now what 2 question, and I'll show you this in just a 2 you're telling -- 3 second. You're asked the question, "But, of 3 MR. RADCLIFFE: Objection. 4 course, you really don't have any basis to tell 4 Q. -- the ladies and gentlemen of this 5 us what the gentlemen -- ladies and gentlemen 5 jury that you do have some basis for telling 6 knew about asbestos in insulation in the 1950s. 6 them what Riley Stoker knew about asbestos in 7 You don't have any knowledge about that, do 7 insulation in the '50s; is that right? 8 you?" Do you see your answer there on line 24? 8 A. No. That's taken out of context. 9 A. It says, "I do not." 9 MR. RADCLIFFE: Objection to form. 10 Q. Okay. Now, have you gained some new 10 A. There's more in that deposition which 11 basis for understanding what Riley Stoker knew 11 is exactly what I just said here because when 12 about asbestos in insulation since 2006? 12 there was confusion. It got clarified, and I 13 MR. RADCLIFFE: Object to the form. 13 went through the same explanation because 14 A. There was more to this -- that does 14 that's exactly how I learned what happened. 15 not stand alone. There was a lot more flow to 15 Q. Okay. So your testimony today is that 16 that question than right there. I just gave 16 the engineering people that you worked with at 17 the same explanation then I just gave you about 17 Riley Stoker in the 1970s didn't know that 18 working with older units. I don't know where 18 insulation had asbestos in it before 1972, 19 it is in here, but it's in there. 19 correct? 20 Q. Following the explanation that you 20 MR. RADCLIFFE: Objection. Asked and 21 gave in 2006, you're asked this question. "You 21 answered. 22 really don't have any basis to tell us what the 22 A. I think I have answered that several 23 ladies and gentlemen knew about asbestos in 23 times. 24 insulation in the 1950s. You don't have any 24 Q. Okay. But you're not answering for 25 knowledge about that, do you?" And your answer 25 Riley Stoker the corporation as a whole, HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 29 (Pages 113 to 116) J. MICHAEL SMITH J. MICHAEL SMITH Page 113 Page 114 1 correct? 1 material had asbestos in it? 2 A. I did not -- 2 A. Oh, no, there was -- 3 MR. RADCLIFFE: Object to form. 3 MR. RADCLIFFE: Objection -- 4 A. I have not polled every single person 4 A. No. 5 that ever worked for Riley. 5 MR. RADCLIFFE: -- to form. 6 Q. Okay. Now, you're not suggesting to 6 A. In this book right here, you'll find 7 this jury that it was unknown to industry that 7 we have -- there's been excerpts from I think 8 thermal insulation products up to 1972 had 8 way back in the '30s or '40s that some people 9 asbestos in them, are you? 9 knew asbestos was in stuff, what it could do. 10 A. No. Excuse me, let me stop. What 10 It was not a known factor in the boiler 11 industry? 11 industry that insulation was potentially 12 Q. Well, people that used asbestos 12 harmful until '72. 13 insulation in their products? 13 MR. STUEMKE: Let's go ahead and mark 14 A. The suppliers obviously knew; they put 14 this exhibit as the next in order. I think 15 it in there. The insulators themselves, maybe. 15 we're up to No. 9, please. 16 But the general populous, once again, I was out 16 (Exhibit No. 9, Affidavit of Document 17 there in the field '66 to '73 right in the 17 Authentication so marked) 18 middle of this. 18 Q. Front page of Exhibit 9 you see is an 19 Q. Okay. 19 affidavit of document authentication, correct? 20 A. They didn't. If they knew it, they 20 A. Yes. 21 kept it to themselves because, boy, we sure 21 Q. That's what it's entitled? 22 didn't know it out there. And we were 22 A. Yeah. 23 supervisors right on the line. 23 Q. If you turn to the next page, sir, 24 Q. Okay. It was some -- are you 24 you'll see that this is Power magazine January 25 suggesting it was some kind of secret that this 25 1951, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 115 Page 116 1 A. Yes. 1 MR. RADCLIFFE: Objection to form. 2 Q. We had an excerpt of the magazine as 2 Q. In the middle column, sir, there's a 3 Exhibit 3. Do you recall that? 4 A. Right. 3 section heading called "Insulation," correct? 4 A. Yes. 5 Q. I indicated I had the complete 5 Q. Okay. And that says, "For surfaces 6 magazine. Here it is. 6 with temperatures at and below 500 degrees 7 A. You said that. 7 Fahrenheit, 85 percent magnesia has proved most 8 Q. Now, if you turn, sir, to page 104 -- 8 economical." Did I read that correctly? 9 A. (Witness complies) 9 A. Yes. 10 Q. -- you see 104 and the next page 105; 10 Q. Now, 85 percent magnesia is one of the 11 that's the two-page Riley Stoker advertisements 11 insulation products that Riley Stoker was using 12 we looked at earlier, correct? 12 on its boilers, correct? 13 A. Yes. 14 Q. Okay. 13 MR. RADCLIFFE: Object to form. 14 A. It was used on some boilers, yes. 15 A. I believe it is. Exhibit 3? 15 Q. Okay. And this paragraph goes on to 16 Q. I think so, yes. Yes, that's right. 17 A. Okay. 16 state that, "This material contains hydrated 17 basic carbonate of magnesium bonded with about 18 Q. Page 104 and 105, Power magazine 1951, 18 15 percent of asbestos fiber." Do you see 19 Riley Stoker's advertising, correct? 19 that? 20 A. Yes. 20 A. Yes. 21 Q. Now, if you turn, sir, a grand total 21 Q. It goes on to state that, "The 22 of 11 pages further back into that magazine, do 22 asbestos fibers act as a heat resisting 23 you see an article entitled, "How Your Steam 23 reinforcement to add structural strength and 24 Turbine is Insulated," correct? 24 long life." Do you see that? 25 A. Yes. 25 A. Yes. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 30 (Pages 117 to 120) J. MICHAEL SMITH J. MICHAEL SMITH Page 117 Page 118 1 Q. Okay. So it wasn't a secret in 1951 1 Q. Right. 2 that 85 percent magnesia insulation contained 2 A. -- it usually was one of the two, yes. 3 asbestos, was it? 3 Q. Okay. Sir, what union did Riley 4 A. I never said it was a secret. 4 Stoker go to to get insulators? 5 Q. Okay. Well, it's true that if Riley 5 A. It was probably the Asbestos Workers 6 Stoker had read the magazine in which it 6 Union. 7 advertised in 1951, it would have known that 7 Q. Okay. Riley Stoker when it's their 8 that insulation contained asbestos, correct? 8 job to install, make sure the insulation gets 9 MR. RADCLIFFE: Object to form. 9 installed on their boilers, they go to the 10 A. That's a stretch. I mean, we 10 Asbestos Workers Union to get insulators that 11 advertised in a magazine, doesn't mean we're 11 can do that work, correct? 12 reading every single article in it and we 12 A. That's -- no, only part of the name of 13 understand what they're talking about. This is 13 the union. It's Asbestos Workers and Heat. 14 a turbine generator. I'm a boiler guy. I'm 14 Q. Could I see Exhibit 8, sir, your 15 not going to read this. 15 binder? 16 Q. You've testified that if insulation 16 A. (Witness complies) 17 was in Riley Stoker's contract, Riley Stoker 17 Q. Thank you very much. 18 would either subcontract the work to an 18 A. I forget what the name of the full 19 insulation contractor or hire employees 19 union is. 20 directly from the union hall, correct? 20 Q. Sir, I have looked in your binder 21 A. You're talking about the labor to 22 apply it? 23 Q. Yes, to do the insulation? 21 here, and I've turned you to a page in 22 Exhibit 8. Do you see in Exhibit 8 is a 23 portion of the Asbestos Worker magazine, 24 A. If it was -- all right, if it was in 24 correct? 25 our scope of work for erection -- 25 A. Yes. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 119 Page 120 1 Q. And it states it's the official 1 Asbestos Workers Union to do that, don't you 2 journal of the International Association of 2 think that they would understand that 3 Heat and Frost Insulators and Asbestos Workers, 3 insulation contains asbestos? 4 correct? 4 MR. RADCLIFFE: Object to form. 5 A. That's right. 5 A. I didn't make the connection. I don't 6 Q. You refer to them simply as the 7 Asbestos Workers Union, correct? 8 A. I couldn't remember the whole name. 9 Q. Sure. And that's what they were 10 commonly known as, correct? 6 know. 7 Q. It certainly would be a pretty good 8 clue that the insulation that these asbestos 9 workers were working with contains asbestos 10 just from the name of the union that you go to; 11 A. We called them insulators. 12 Q. Okay. You called them just a minute 13 ago the Asbestos Workers Union, correct? 11 wouldn't you agree with that? 12 A. They have put on a lot of -13 MR. RADCLIFFE: Objection to form. 14 A. Yes, I did. 15 Q. That's where you -- go ahead. 14 A. They put on a lot of different 15 materials. I'm not -- I don't know if what we 16 A. We called them insulators. 16 had was asbestos. I know where you're trying 17 Q. And the Asbestos Workers Union is 17 to go with this, but I just can't deal with it 18 where Riley Stoker would go to hire employees 18 because I lived this and no one knew it. I 19 that could do insulation work, correct? 19 don't think it's a stretch to say I never made 20 A. Go into the -- go into the union for 20 the connection. I'm not a stupid guy. I don't 21 the heat and frost insulators and asbestos 22 workers. 23 Q. Okay. Don't you think, sir, a 21 know if someone did, but I sure didn't. And 22 the people that we were working with in 23 construction that was never known, at least not 24 reasonable company that has to hire employees 24 the ones I was working with. 25 to do insulation work and they go to the 25 Q. Sir, don't you think it's a good idea HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 31 (Pages 121 to 124) J. MICHAEL SMITH J. MICHAEL SMITH Page 121 Page 122 1 for a manufacturer to understand the nature and 1 Q. Sir, does Riley Stoker believe it's a 2 makeup of the products that are specified on 2 good idea to understand the nature and the 3 its machinery designs? 3 makeup of the products that it specifies on its 4 MR. RADCLIFFE: Object to form. 4 designs? 5 A. I don't understand the question. 5 MR. RADCLIFFE: Object to the form. 6 Q. Okay. Well, you agree Riley Stoker 6 A. We specified design. It's on a Riley 7 specified certain products for use in and on 7 boiler for -- they call it for the auxiliary 8 its boilers, correct? 8 equipment or the ancillary equipment to the 9 MR. RADCLIFFE: Object to form. 9 boiler. We give the conditions under which it 10 A. The customer gave us a specification. 10 has to operate. We don't design it. They 11 We took that specification, matched it with 11 design it. We just specify what it has to do. 12 ASME code and came up with a design that would 12 There's a difference between designing and 13 work to make our boiler do what we wanted it to 13 specifying. 14 do. And then we went out to the industry and 14 Q. Okay. You specify insulation? 15 said, Give us something to fit this design. 15 A. We specify -- the customer specifies 16 That's how we did it. And it was usually done 16 it to us, and we specify it out, yes, we do. 17 through purchasing. And after so many of these 17 Q. Okay. And don't you agree that it's a 18 they finally said, okay, these are the 18 good idea for Riley Stoker to understand the 19 standards. This is what works in this 19 composition of the insulation that it's 20 application. And that's how we did it. It was 20 specifying for use on its products? 21 a generic term. To this day we still use cal 21 MR. RADCLIFFE: Object to the form. 22 sil as a generic term for pipe insulation, 22 A. You know that's like I need to 23 never changed it. 23 understand the design of the tires I have on my 24 MR. STUEMKE: I'm going to object as 24 car. I don't understand the design. I know 25 nonresponsive. 25 the tire works. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 123 Page 124 1 Q. All right. 1 Q. Okay. Now, the Riley Stoker engineers 2 A. It has to be the right size, but I 2 who are ethically charged to protect the public 3 don't understand the design. I'm not going to 3 safety, don't you think that they should have 4 design the tire. If it's our stuff, you know, 4 understood the composition of the insulation 5 our boilers, our tubes, our drums, darn right 5 products going on their boilers so that they 6 we have to understand it because that's the 6 could make sure it wasn't going to kill people 7 ASME code; that's what we do. 7 that worked with and around it? 8 Q. Shouldn't you understand at least the 8 MR. RADCLIFFE: I object. That's 9 composition of the product that you're 9 argumentative. Don't answer that. 10 intending to be used on your boiler if for no 10 MR. STUEMKE: He can answer the 11 other reason than so you can make sure it's 11 question. Argumentative is not a basis for you 12 safe? 12 to instruct him not to answer. 13 MR. RADCLIFFE: Object to form. 13 MR. RADCLIFFE: It is if it arises to 14 A. That's the responsibility of the 14 the level of harassment. Rephrase your 15 manufacturer and supplier of that product to 15 question. 16 inform us if there's a problem. 16 MR. SAUL: Counsel, we have three 17 Q. Okay. You're not the first 17 minutes left on the video right now. I don't 18 professional engineer that Riley Stoker has 18 know if we want to just kind of transition here 19 ever had, are you? 19 and take a break, switch tapes or if we want to 20 A. I don't think so. 20 take a break for lunch, depending on how 21 Q. We talked earlier about how the codes 21 everybody is doing. 22 of ethics for professional engineers require 22 MR. STUEMKE: Well, I want an answer 23 them to protect the public safety. You 23 to the question first, and then we can go to 24 remember that? 24 lunch. 25 A. Yes, we did. 25 MR. RADCLIFFE: I'm instructing him HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 32 (Pages 125 to 128) J. MICHAEL SMITH J. MICHAEL SMITH Page 125 Page 126 1 not to answer the question. You may rephrase 1 safe. The vendors came back and said, This is 2 it. 2 the product that will work in that environment 3 MR. STUEMKE: What's the legal basis 3 according to the ASME code and everything else. 4 for you to instruct him not to answer? 4 That is all -- why would we go any further? 5 MR. RADCLIFFE: That is including to 5 Our main focus is the boiler. The 6 language "to kill people" in the question is 6 suppliers are focused on theirs. If they have 7 argumentative and amounts to harassment. It's 7 a problem, they should be informing us of the 8 not a proper question. There's no question 8 -- we can't ask every single person in the 9 that a judge would let you get away with in a 9 world, Is this safe? What does it contain? 10 Court of law. 10 There's a lot of products that go into a 11 MR. STUEMKE: Okay. 11 boiler. We do not know the composition of 12 Q. Sir, the professional engineers at 12 every single one, at least I don't, and I don't 13 Riley Stoker in the 1940s and 1950s and 1960s 13 know anybody who does. 14 would have had an ethical obligation to protect 14 MR. STUEMKE: Why don't we go ahead 15 public safety, correct? 15 and take our brief lunch break now. 16 MR. RADCLIFFE: Object to form. 16 THE VIDEOGRAPHER: The is the end of 17 A. For the work we did, yes. 17 tape number two. The time is 12:49. We're off 18 Q. Okay. Don't you think that would 18 the record. 19 extend to at least learning the composition of 19 (Lunch Recess 12:50 p.m. to 1:32 p.m.) 20 the insulation materials they specified to make 20 (Mr. Kennaday did not return on 21 sure that it would be safe for the people 21 teleconference) 22 working with and around it? 22 THE VIDEOGRAPHER: This is beginning 23 MR. RADCLIFFE: Object to form. 23 of tape number three. We're back on the 24 A. They specified the properties of the 24 record. The time is 1:32. 25 material to make our boilers work right and 25 BY MR. STUEMKE: HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 127 Page 128 1 Q. Mr. Smith, are you ready to continue? 1 It's right next to the B. 2 A. Yes. 3 Q. Very good. I'd like to turn your 2 A. I'm not sure. I think that's a fuel 3 burning number. 4 attention now, sir, to what we know about the 4 Q. Okay. 5 Riley Stoker boilers that were installed at 5 A. The main contract was B-1744. 6 Interstate Power in Lansing, Iowa. I 6 Q. Okay. Does B stand for boiler? 7 understand that you have reviewed certain 7 A. Badenhausen. 8 documents relating to those boilers; is that 8 Q. Badenhausen. Got you. And the other 9 correct? 9 contract documents are for unit number three, 10 A. Yes. 10 correct? 11 Q. Okay. And can those documents 11 A. Yes. Contract B-2249. 12 generally be described as the contract 12 Q. Okay. These documents are Bates 13 documents? Pull them out if you want to. 13 numbered at the bottom. Do you see that? 14 A. Okay. Probably the same as yours. 14 A. Yes. 15 Q. Mine have more tabs on them. 15 Q. Are your copies Bates numbered? 16 A. These are the documents that we 16 A. Yes, they are. 17 obtained from our records on the two contracts 17 Q. Okay. And the Bates numbers for 18 that I'm sure you have copies of. 18 contract -- excuse me, for units number one and 19 Q. Yes. And we have a contract in 1946 19 two contract documents extend through 216, 20 for units one and two, correct? 20 correct? 21 A. The contract was sold in 1946. 21 A. Drawings 216. 22 Q. And that is for units number one and 22 Q. Yes. 23 two, correct? 23 A. Okay, 216. 24 A. Yes. That is contract No. B-1744. 24 Q. Okay. Then the second set of drawings 25 Q. Okay. What does the P-4657 indicate? 25 extends from 217 through 414, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 33 (Pages 129 to 132) J. MICHAEL SMITH J. MICHAEL SMITH Page 129 Page 130 1 A. Yes. 1 our records. 2 Q. Okay. 2 Q. Okay. You say "we." Who was it that 3 MR. STUEMKE: And I assume, Tom, we'll 3 did the search? 4 have a stipulation these are authentic business 4 A. We have two document specialists in 5 records of Riley Stoker, Bates numbers 1 5 the Worcester office, the Riley office that 6 through 414? 6 I've worked with for years, and they're very 7 MR. RADCLIFFE: Documents that we have 7 familiar with all the card file, the master 8 produced to you we will not object on the basis 8 record, if you will, that we use, the location 9 of authenticity or that they're not business 9 of the -- in some cases current documents, but 10 records. 10 in these cases these are old documents. And 11 MR. STUEMKE: Okay. 11 there's various places they're found, and they 12 Q. And for the record, the complete label 12 know where they are. And they know how to find 13 on the Bates label is Gary Lenz, Greenville 13 them. 14 County South Carolina, Simon, Eddins & 14 Q. Who are these document specialists? 15 Greenstone, May 2009, then numbers 1 through 15 A. Tammy McCaie. 16 414, correct? 16 Q. How do you spell the last name? 17 A. Yes. 17 A. M-C-C-A-I-E. 18 Q. Okay. Now, Mr. Smith, how were these 18 Q. And who is the other? 19 documents located? 19 A. Tony Kirouac, K-I-R-O-U-A-C. 20 A. The documents were located based on 20 Q. Okay. And by whom is Tammy McCaie 21 information given to us to look for Interstate 21 employed? 22 Power Company, Lansing Power Station, Lansing, 22 A. Cet Cap. 23 Iowa. 23 Q. Cetrulo & Capone? 24 Q. Okay. 24 A. Yes, Cetrulo & Capone. 25 A. With that information we then searched 25 Q. Attorneys for Riley Stoker? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 131 Page 132 1 A. Yes. 1 after the fact. They had already located them 2 Q. She's not an employee of Riley Stoker 2 by the time I was told about the case. 3 herself? 4 A. Not to my knowledge. 5 Q. By whom is Tony Kirouac employed? 6 A. The same. 7 Q. Cetrulo & Capone? 3 Q. Okay. So before you even knew that 4 there was a case involving Gary Lenz, to your 5 understanding these documents had already been 6 located, correct? 7 A. They were given to me last week. 8 A. Yes. 8 Q. Okay. 9 Q. So Cetrulo & Capone, the attorneys for 9 A. That's when I got them. 10 Riley Stoker, have two people who actually work 10 Q. Last week you found out there was a 11 at the Riley Stoker Worcester office? 11 Gary Lenz case, and by the way, here's all the 12 A. Yes. 12 documents. Is that basically what happened? 13 MR. RADCLIFFE: Object to form. 13 A. Yes. 14 Q. That's their full-time location? 14 Q. Okay. Can you tell me where these 15 A. I don't know if it's a hundred percent 15 documents were located? You mentioned a card 16 full-time. They're here some of the time, too, 17 here in Boston. 18 Q. Here in Boston, you're referring to 16 file. 17 A. The old contracts in Riley are filed 18 on it's a card system, and it is based on the 19 where we are today, the offices of Cetrulo & 19 customer name and the customer location. That, 20 Capone? 20 in turn, if successful, find a successful 21 A. Yes. 21 match, we then -- the card will give us the 22 Q. Now, what involvement did you have in 22 appropriate -- excuse me -- contract number. 23 locating the documents that have been produced 23 And that contract number is a number 24 to the plaintiffs in this case? 24 we just referenced for each of these. And then 25 A. The involvement I had was primarily 25 they search -- they have some microfiche, they HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 34 (Pages 133 to 136) J. MICHAEL SMITH J. MICHAEL SMITH Page 133 Page 134 1 have some microfilm. And then we have some 1 they stopped converting the hard copies to 2 hard copies in an off-site warehouse that is 2 microfiche or microfilm and you just have the 3 filed by contract number. And they go through 3 hard copy? 4 and pull all the appropriate documents they can 4 A. I used to know. I forget. 5 find from the three sources. That is the 5 Q. Can you give me a decade? 6 extent of the sources. I mean, that's all we 6 A. Maybe the '70s. 7 got 7 Q. Okay. 8 Q. Okay. Is there a different type of 8 A. It's a guess. 9 document that would be located in one of those 9 Q. Sure. To your best guess today, 10 sources versus another, if you understand the 10 documents older than the 1970s would have been 11 question? 11 found on either microfiche or microfilm? 12 A. It really is dependent on the original 12 A. There still might have been hard 13 source of the boiler as far as was it Riley, 13 copies left somewhere too. 14 Badenhausen, Union Iron Works and the timing. 14 Q. Obviously, Riley Stoker had a number 15 Because there was a period of time when 15 of different departments at the time you worked 16 everything was put onto microfiche, and then 16 there, correct? 17 there was a period where everything was put 17 A. We had a lot of departments. 18 onto microfilm, and then they stopped doing it 18 Q. Okay. You yourself had experience in 19 for whatever reason. So you have to search all 19 the boiler design department and the parts 20 three every time. 20 group. Is that a department? 21 Q. You say "they stopped doing it," you 21 A. Oh, yeah. 22 mean for that period of time you just have the 22 Q. The industrial division, the utility 23 hard copies? 23 division. You were in a lot of different areas 24 A. Hopefully, yes. 24 within the company? 25 Q. Do you know approximately what year 25 A. Construction division. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 135 Page 136 1 Q. Construction division. All of those 1 the request for proposal, your proposal, 2 different areas of the company generate 2 specifications, any contract papers. 3 documents, correct, in general? 3 Obviously, the drawings have to be kept because 4 A. Yes. 4 we're -- it's national board. You have to keep 5 Q. Now, how many of those areas of the 5 drawings. 6 company may generate documents relating to a 6 Q. Define what you mean by "national 7 specific boiler, say, one in the '40s or '50s? 7 board" real quick? 8 A. Every division that touches the 8 A. National board is the Hartford Steam 9 contract would have some active records. Then 9 Boiler national board number, and as Hartford 10 at the end of the contract, the successful 10 Steam Boiler, there's also a national board 11 turnover to the customer after final 11 associated ASME, ASME boiler code. You have to 12 acceptance, the documents would be 12 register with the national board, and Hartford 13 consolidated. 13 Steam Boiler actually helps tracking the board 14 Q. Okay. 14 numbers. There's a national board number on 15 A. And then they'd be culled. And, 15 every boiler that we make. 16 fortunately, there was no particular way of 16 Q. Okay. Just for the court reporter, 17 culling them, the project manager, whoever did 17 you're saying Hartford Steam Boiler? 18 it. They said get rid some of volume because 18 A. Hartford Steam. 19 you get a lot of documents. 19 Q. I didn't mean to interrupt. I just 20 Q. Sure. 20 wanted to make sure the jury understood what 21 A. There were certain ones they usually 21 you're talking about. The documents that are 22 tried to keep. And I know for my -- I'm 22 located in the microfiche and microfilm and the 23 talking from my perspective as project manager 23 hard copy off-site records that are maintained 24 what I wanted to keep to look back at. And it 24 today, those are the documents that were 25 was primarily if you could, you want to keep 25 generated up to and including the final HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 35 (Pages 137 to 140) J. MICHAEL SMITH J. MICHAEL SMITH Page 137 Page 138 1 acceptance of the boiler by the purchaser, 1 arise that are causing the boiler not to work 2 correct? 2 optimally? 3 A. No. 3 MR. RADCLIFFE: Object to form. 4 Q. Okay. How is that wrong? 4 A. Riley has a contractual obligation to 5 A. If -- there are some documents right 5 provide a boiler to meet certain 6 here, I'll show you. That because there were 6 specifications. We'll see that in these 7 issues with the boiler after it was up and 7 documents. 8 running, and paperwork is always generated to 8 Q. Sure. 9 document any changes or anything else to the 9 A. If it does that and it runs fine, then 10 boiler, particularly on the original contract. 10 the warranty, whatever it is, one year, 11 And they may go out several years after the 11 18 months after receipt of the material, the 12 boiler was theoretically erected until the 12 warranty expires and we all live -- we move on, 13 boiler is finally satisfying all its 13 but we still keep track of the boiler per se as 14 contractual requirements. 14 far as if something changes on the boiler, the 15 Q. Okay. So maybe not the best analogy 15 customer comes back, I'm going to change my 16 in the world, but if you buy a new house these 16 fuel. And we make a modification to the boiler 17 days, typically the new home builder will give 17 to make the customer happy, that modification 18 you a one-year warranty on various things. And 18 is normally gone back to and noted on the 19 if you have a problem with it, you got to 19 drawings. If this was -- super heated was 20 contact him within a year, and they come and do 20 changed in, you know, '67 or something like 21 the work; otherwise, you're on your own. 21 that so it's not a pure -- the contract is 22 Is that basically the type of process 23 that you're talking about, probably not just 22 over. We end it. There is some track of any 23 major changes or anything like that. 24 for one year, but where Riley Stoker would keep 24 Q. All right. Major changes, warranty 25 records of going out to fix issues that may 25 work, things of that nature generally? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 139 Page 140 1 A. Warranty work is usually documented in 1 A. There was no particular process. 2 the original contracts. 3 Q. Okay. Now, is there a name for these 4 files? 5 A. Contract files. 6 Q. Contract files. You indicated that at 7 the time of final acceptance all of the 2 Normally, if a -- the way a document, there 3 would be a work correction order, and that 4 would -- that documents what was done, and that 5 would be in here. Even some of the old ones 6 even had a contract change later on, that paper 7 would be in here too. Okay, this changed four 8 documents from all the different Riley Stoker 8 years later or five years later they changed 9 divisions that relate to a particular contract 9 something. They added -- changed the 10 will be consolidated, and then the project 10 temperature or changed the pressure, whatever. 11 manager will go through those documents, cull 11 We -- there is a reasonable level of keeping 12 through them and decide which need to be saved, 12 the documents together over time. 13 and are the rest discarded? 13 Q. Okay. You'd agree that if there's a 14 A. Yes. 14 change that alters the design of the boiler or 15 Q. Okay. And it sounds like from your 15 the operational characteristics of the boiler, 16 testimony that there may have been some degree 16 that records of that type of a change would 17 of variance in what difference project managers 17 likely be maintained? 18 chose to keep; is that fair? 18 A. There would be some record -- for 19 A. Yes. 19 design change there would be some record 20 Q. Would all of the post final acceptance 20 because that would also have to be registered; 21 documents we just talked about, would all of 21 that would have to be a registered change. 22 those be saved or was there a similar culling 22 Q. Okay. But you're not able to say that 23 process by somebody to determine what should be 23 Riley Stoker today has records in its contract 24 saved in the contract file and what could be 24 files of each and every visit for whatever 25 discarded? 25 reason, major reason or minor reason, that a HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 36 (Pages 141 to 144) J. MICHAEL SMITH J. MICHAEL SMITH Page 141 Page 142 1 Riley Stoker representative would go on to a 1 A. Right. When I get -- 2 site and do something in connection with the 2 MR. RADCLIFFE: Object to form. 3 boiler? 3 A. When I get involved in a case, and it 4 A. We would not have all those. 4 looks like we're going to be doing something 5 MR. RADCLIFFE: Object to form. 5 with it, I call Tammy and Tony, and we do a 6 Q. You do not have all of those records? 6 double, triple check, particularly if there's 7 A. No. Because that -- if it affected 7 one where we can't get a match. That's when I 8 the design of the boiler, it would. But a 8 do my own search. In this case they said this 9 visit by a service engineer or salesman, no, we 9 is what we got. 10 wouldn't have records. 10 Q. Okay. It's fair to say then for your 11 Q. Okay. So substantial changes, yes; 11 testimony that these are all of the documents 12 just visits by a service engineer or 12 that were located you're relying on the truth 13 salespeople, no, you're not going to have those 13 of what these two individuals told you? 14 records. Is that fair? 14 A. Yes. 15 A. That's fair. 15 MR. RADCLIFFE: Object to form. 16 Q. Sir, do you know whether the documents 16 Q. Okay. 17 produced by the plaintiffs in this case that 17 A. I worked with them for years. I've 18 bear the Bates labels 1 through 414 are all of 18 cross checked them. 19 the documents that were located in Riley 19 Q. Sure. 20 Stoker's contract files? 20 A. They're right. 21 A. They are all the documents. 21 Q. And you trust them based on your 22 Q. And you didn't participate in the 22 experience with them is what you're saying? 23 search, so you don't say that from your own 23 A. Yes. 24 personal knowledge. You're relying on what 24 Q. But your only basis to tell the jury 25 somebody else told you about that, correct? 25 in this case that these are all the documents HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 143 Page 144 1 is what these two people told you? 1 And then they would usually, usually, 2 A. Yes. 2 not always, be there to assist the customer 3 Q. Okay. You mentioned service 3 during the startup because we can't run a 4 engineers. We saw a reference to service 5 engineers in one of the Power magazine 4 boiler. We're not operators; we're not 5 licensed, never have been, never will. And 6 advertisements we looked at earlier. Do you 6 they would assist the owner in the startup of 7 recall that? 7 the process. 8 A. Yes. 9 Q. Okay. What was the job of the service 10 engineers at Riley Stoker? 11 A. They serve multi functions. On a new 12 project service engineers would get involved 13 probably during the later -- the latter phase 8 They also would participate if there 9 was a required testing program to prove the 10 integrity of the boiler, they would initiate 11 the test program and execute it with the 12 customers and other equipment manufacturers' 13 participation. 14 of the construction where they would start 14 They would prepare a final report or 15 interfacing with the owner and their operators 15 someone in their division would. Then after 16 to get them up to speed on what equipment was 16 that everything was up and fine and set, they 17 being put in. 17 would on a regular basis visit the customer to 18 The owners wrote their own operating 18 see how it was going, could they assist them in 19 manuals because it wasn't just the boiler. 19 any way. 20 They had to incorporate all the equipment on a 20 Sometimes a customer would ask us 21 power house. We might go in there and do some 21 occasionally to come in during the annual 22 training on a particular Riley boiler or some 22 inspection and look at a particular issue they 23 aspect of it, maybe the control system or 23 might be having. They were pretty much after 24 something along with the control system 25 manufacturer. 24 the erection phase of a contract, the service 25 department would kind of be the hand holder for HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 37 (Pages 145 to 148) J. MICHAEL SMITH J. MICHAEL SMITH Page 145 Page 146 1 Riley for the future. 1 condition of how they operate the boiler. Some 2 Q. Okay. And records of those visits by 2 boilers they never touched; others they do have 3 the service engineers after the initial startup 3 to touch it because of the conditions the fuel. 4 and after they'd done their final report, these 4 The boiler got out of balance on the air when 5 aren't records that Riley Stoker believes it 5 it's acidic or something like that. But that 6 still has copies of? 6 is really a repair rather than maintenance. 7 A. No. Those aren't contract records. 7 Q. Okay. 8 Those are -- I don't have a term for it. 8 A. Maintenance is when you just basically 9 Business records. 9 keep the boiler maintained. You inspect it 10 Q. Right. Those records, to the extent 10 once a year. You make sure everything is in 11 they ever existed, they're gone now? 11 adjustment. You know, your water gauge, your 12 A. They're gone. We never see them. 12 water is the right condition. Your water is 13 Q. Sure. Would service engineers 13 the right level. And you keep inspecting it, 14 typically also visit a customer's site if they 14 follow the codes, that's maintenance. Repair 15 were doing significant maintenance to the 15 is when you go in and have to start taking 16 boiler? 16 something apart. 17 A. We need to define "maintenance." 17 Q. It would be considered a repair if you 18 Q. Sure. You're aware that certain 18 had to rebrick a portion of a boiler? 19 boilers need to have the firebrick replaced, 19 A. Yes. 20 correct? 20 Q. Okay. And for that type of repair, 21 A. A lot of boilers don't have firebrick. 21 you would expect that a Riley Stoker service 22 Q. Certainly if it never had it, it 22 engineer would be on-site? 23 doesn't need to be replaced. We'll stipulate 23 A. Not necessarily. That's something -- 24 to that. 24 MR. RADCLIFFE: Object to form. 25 A. Okay. The firebrick is usually a 25 A. -- that could be done without a HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 147 Page 148 1 service engineer there. 1 turn off boilers, correct? 2 Q. Okay. Would you -- it wouldn't be 2 A. They normally do it on a scheduled 3 uncommon to have a service engineer present for 3 basis on what they call the off-peak seasons. 4 that type of repair? 5 Mr. RADCLIFFE: Object to form. 4 Q. Okay. And during the off-peak season 5 in a power plant that had, say, three Riley 6 A. Service engineer couldn't lend 7 anything to that. Service engineer might be 6 Stoker boilers, during the off-peak season you 7 might shut one of those down at a time in order 8 on-site during that period of time for other 8 to do repairs or inspections; is that correct? 9 reasons because it was an outage and it gave 9 A. You might. 10 the owner an ability to use a service engineer 11 to look at different things they might have 10 Q. Okay. And repairs or inspections are 11 the type of thing where Riley Stoker service 12 concerns about. 13 Q. Ordinarily you can't go inside a 12 engineers may be called out to participate in? 13 A. They might be. 14 boiler? 15 A. You better not. 14 Q. Okay. 15 MR. RADCLIFFE: Objection to form. 16 Q. Wouldn't last very long. If the 16 Q. If they were in a particular case, if 17 boiler is being rebricked, obviously, it's off? 17 there ever was a record of it, that's a record 18 A. Definitely. 18 that Riley Stoker does not have now and would 19 Q. And that's an opportunity for the 19 not expect to have now, correct? 20 owner to have the Riley Stoker service engineer 20 21 come out, actually get inside the boiler and 21 A. We don't have them. Q. Okay. 22 look at various things to make sure everything 22 A. That's all I can tell you. 23 other than the brick is performing adequately? 23 Q. In this case the contract documents 24 A. It's possible. 24 that have been produced to the plaintiff, if 25 Q. Generally, utility plants tend not to 25 these contract documents don't contain any HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 38 (Pages 149 to 152) J. MICHAEL SMITH J. MICHAEL SMITH Page 149 Page 150 1 record of Riley Stoker service engineers 1 MR. RADCLIFFE: Object to the form. 2 visiting the Interstate Power Company Power 2 Q. Is that fair? 3 Plant, it doesn't mean the service engineers 3 A. It's possible. 4 never went there, correct? 4 Q. You have a handwritten sheet on top of 5 MR. RADCLIFFE: Objection to form. 5 two stacks of documents here, correct? 6 A. Lack of records here does not mean he 6 A. Yes. 7 never -- a service engineer never visited the 7 Q. What is that handwritten sheet? 8 plant. 8 A. It is -- 9 Q. Okay. Riley Stoker today simply 9 Q. It's partially handwritten. 10 doesn't know if and if so when its service 10 A. It is my notes, my reviewing the 11 engineers visited the Interstate Power Plant in 11 contracts to get pertinent data that we 12 Lansing, Iowa, correct? 12 regularly wind up talking about in these 13 MR. RADCLIFFE: Object to the form. 13 events. 14 A. We have some documents in these two 14 Q. Okay. 15 packages that do reference correction order 15 MR. STUEMKE: Let's mark the -- 16 work after the work was done. 16 Q. It's entitled "Contract Review," 17 Q. Fair point. Other than those records 17 correct? 18 and other than the visits reflected by those 18 A. Yes. 19 records, Riley Stoker doesn't have information 19 MR. STUEMKE: Let's mark the contract 20 about whether or not service engineers were on 20 review for units one and two contract documents 21 this site for other reasons? 21 as Exhibit No. 10. 22 A. We have no files. 22 (Exhibit No. 10, Contract Review, 23 MR. RADCLIFFE: Object to the form. 23 Units One and Two so marked) 24 Q. They could have been there; you just 24 (Exhibit No. 11, Contract Review, Unit 25 don't know? 25 Three so marked) HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 151 Page 152 1 Q. Could I take a second and review 1 Q. Operating at 975 pounds of pressure? 2 Exhibit 10, please. I take it you made the 2 A. Operates at 875. 3 notes that are reflected by Exhibits 10 and 11 3 Q. Okay. That's right. The drum 4 yourself? 4 pressure is rated at 975? 5 A. Yes. That's my name on them. 5 A. Yes. That would be design. 6 Q. And it's your work, right? 6 Q. Okay. And it indicates who supplies 7 A. Yes. 7 the equipment for these boilers, correct? 8 Q. Okay. How did you decide what aspects 8 A. Yes. 9 of the contract documents to highlight on your 9 Q. Okay. And there are two initials in 10 notes? 10 front of each of the items that are listed on 11 MR. RADCLIFFE: Objection to form. 11 this chart C and P. I assume C stands for 12 Q. What were you looking for? 12 contractor? 13 A. This is the form that I made up quite 13 A. Yes. 14 a while ago to get a uniform look at a contract 14 Q. Does P stand for purchaser? 15 when I'm reviewing it to make sure I picked up 15 A. Yes. 16 items that I was regularly asked about. 16 Q. There were certain pieces equipment 17 Q. Okay. And in looking at the summary 17 that were simply not a part of this contract, 18 contract B-1744 which is for units number one 18 correct, such as an economizer, platforms and 19 and two, if we look at page one, this is -- 19 ladders, stack, dust collector, ash gate, 20 it's called a summary of the contract, correct? 20 correct? 21 A. Contract summary. 21 A. Yes. 22 Q. Okay. And the contract summary 22 Q. Okay. What is a dust collector? 23 indicates that the steam temperature for these 23 A. It basically collects -- it's on the 24 units is 910 degrees, correct? 24 back end of the boiler. It meets after the 25 A. Yes. 25 combustion process, and it is like a HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 39 (Pages 153 to 156) J. MICHAEL SMITH J. MICHAEL SMITH Page 153 Page 154 1 precipitator. It collects some of the ash from 1 insulated, okay. The boiler, that would be 2 the air, purifies the air before it goes out 2 insulated, correct? 3 the stack. 3 A. Yes. 4 Q. To minimize pollution? 4 Q. The super heater would be insulated, 5 A. Yes. 5 correct? 6 Q. What happens to the dust once it's 6 A. No. Not -- some headers might be, but 7 gotten in the collector? How is it removed? 7 the super heater is inside the boiler. 8 A. There's usually ash removal system on 8 Q. Okay. Where would the headers be? 9 them. 9 A. Up at the -- this is the top of the 10 Q. Then the ash is just taken away 10 boiler. This is the super heater in here 11 somewhere? 11 inside the boiler, and these are the two inlet 12 A. There's a whole process. Ash comes 12 and outlet headers or super heaters. 13 out of the boiler, comes out of different 13 Q. For the super heater? 14 thing, and they have ash removal systems. They 14 A. Yes. 15 have ash disposal systems and it's someone 15 Q. And those inlet and outlet headers 16 else. 16 would be insulated? 17 Q. I'm sure it's a fascinating topic we 17 A. Yes. 18 don't need to get into today. The contract 18 Q. What is the steam temperature control 19 summary for units one and two indicates that 19 equipment? 20 Riley Stoker provides the insulation, correct? 20 A. That's a control system that usually 21 A. Yes. 21 has an attemporator. It's a pipe where you 22 Q. Okay. I want to go through this chart 22 control the temperature of the super heater 23 here and have you tell me which of the pieces 23 steam and the pipes -- exposed pipes would be 24 of equipment that are identified here as being 24 insulated. 25 furnished for these boilers would need be 25 Q. Water walls are insulated, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 155 Page 156 1 A. Yes. 1 have been insulated, correct? 2 Q. The air heater is insulated, correct? 2 A. I believe so. 3 A. Yes. 4 Q. The setting is insulated, correct? 3 Q. The fuel burning equipment is 4 insulated? 5 A. That is the insulation on the outside. 5 A. Not necessarily. 6 Q. Okay. 6 Q. Would a portion of that be inside the 7 A. Part of it, the inside and out. 7 boiler? 8 Q. The setting includes refractory 8 A. No. 9 insulation and steel casing material? 9 Q. No? Okay. 10 A. It's a little confusing if you go into 10 A. No. 11 this. The setting will give you the outside 11 Q. Where would the fuel burning equipment 12 constituents for all the different areas, but 12 be located? 13 then the insulation is primarily the boiler, 14 the walls, the big areas. So it's -- both are 13 A. Fuel burning equipment is if you go 14 down to the bottom of that sheet, it says 15 insulation, but the setting also contains some 15 combustion engineering company Raymond Bowl 16 stuff that's used inside. 16 Mills. Those are located outside the boiler 17 Q. Okay. Is structural steel insulated? 17 where they receive the coal from a hopper which 18 A. No. 18 is fed from a coal pile. They, in turn, 19 Q. Are gas ducts insulated? 19 process the coal and send it up in connecting 20 A. Gas ducts are usually insulated. 20 duct work to the burner then it's burned. 21 Q. Are air ducts insulated? 21 Q. Okay. Is any portion of the fuel 22 A. Depends where. If they're pre -- if 22 burning equipment insulated? 23 it's ambient air, it would not be insulated. 24 Q. Okay. So some of the air ducts 23 A. Part of the burners may be if they're 24 extended out the wind box type thing. 25 furnished by the contractor in this case would 25 Q. Okay. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 40 (Pages 157 to 160) J. MICHAEL SMITH J. MICHAEL SMITH Page 157 Page 158 1 A. Depending on the configuration. 1 Q. Would the driver for the induced draft 2 Q. Are soot blowers insulated? 2 fan be insulated? 3 A. The piping to them would be. 3 A. If it was a turbine. 4 Q. Are forced draft fans insulated? 4 Q. Okay. Would the fittings be 5 A. We didn't supply them on this job. 5 insulated? 6 Q. I understand. But are they insulated? 6 A. Fittings are part of piping at the end 7 A. ID fans are definitely insulated. 7 of steam drums, things like that, so they 8 Forced draft may not be depending on the source 8 pretty much all would be insulated. 9 of the air. 9 Q. Is the combustion control equipment 10 Q. "ID" meaning induced draft? 10 insulated? 11 A. Yes. 11 A. I don't know what kind it is so I 12 Q. Okay. The forced draft fan drive, is 12 can't answer you. 13 that insulated? 13 Q. Are the instruments insulated? 14 A. That's a motor. 14 A. The instrument take-offs might be. 15 Q. Is it insulated? 15 The taps we call them. 16 A. A motor would not be, a steam turbine 16 Q. That's where the sensor feeds into the 17 drive might be -- would be. 17 boiler? 18 Q. I hope so. Can you tell from the 18 A. Or takes it out of the boiler, but I 19 contract documents whether the forced draft fan 19 could have it plugged into a pipe. 20 drive was steam driven? 20 Q. Right. These instruments have sensors 21 A. It wasn't in our scope so it's not 21 that convey information from the boiler to the 22 documented. 22 instrument, correct? 23 Q. Okay. You said the induced draft fan 23 A. Yes. 24 would have been insulated? 24 Q. Okay. And the point where the sensor 25 A. Normally. 25 goes into the boiler or attaches to the boiler, HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 159 Page 160 1 that's going to be insulated, correct? 1 Q. And then underneath that firebrick 2 A. If that is a hot area, yes. 2 tile there's going to be 6 inches of 3 Q. Okay. And, sir, if we turn to page 3 insulation, correct? 4 number six -- well, it says at the top page 4 A. On top of that. 5 number six. It's Bates labeled four at the 5 Q. Depending which way you're going. If 6 bottom. Is this still part of the contract 6 you're coming from the boiler going outward, 7 summary, sir? 7 it's going to be underneath the tile, correct? 8 A. Yes. 8 A. No. 9 Q. Okay. It says page number six at the 9 Q. Well, since it's on the roof? 10 top. The previous page at the top says page 10 A. The tile would be against the tube, 11 number three. Do you know what happened to 11 then the insulation, then the casing. 12 pages four and five? 12 Q. Right. And what was that insulation 13 A. Right behind them. They're out of 13 for these two boilers, sir? 14 sequence. 14 A. The only reference I have is that the 15 Q. Okay. The page says page number six 15 high-temp block was a 48 or equal mineral wool 16 at the top. This is the contract summary for 16 on the boiler. 48 being a supplier. 17 the setting; is that right? 17 Q. Okay. Is that for all the high-temp 18 A. Yes. 18 block on the entire boiler, sir? 19 Q. Okay. And this indicates it's going 19 A. No. 20 to have 10-gauge steel casing, correct, over 20 Q. Okay. Is that just for the roof? 21 the entire unit? 21 A. No, it's for the boiler. 22 A. Yes. 22 Q. Okay. Is all the high-temp block for 23 Q. And indicates that the roof is going 23 this boiler mineral wool, 48 or equal? 24 to have 3 inches of firebrick tile, correct? 24 A. On the boiler. 25 A. Interlocking firebrick tile. 25 Q. Okay. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 41 (Pages 161 to 164) J. MICHAEL SMITH J. MICHAEL SMITH Page 161 Page 162 1 A. Yes. 1 Q. That's 88 cartons of 2-inch thick 2 Q. As opposed to the other pieces of 2 high-temp block, correct? 3 equipment that were furnished and had to be 3 A. Yes. 4 insulated? 4 Q. And that is not mineral wool, correct? 5 A. On the air heater breaching this is -- 5 MR. RADCLIFFE: Objection to form. 6 this is duct work that called for 85 percent 6 A. I don't know what that is. 7 mag block insulation. It's boiler proper, you 7 Q. We know that when Riley Stoker 8 know, it is all mineral wool underneath the 8 requisitions mineral wool block, at least on 9 casing. 9 page 113, they say high-temperature mineral 10 Q. And what information in this contract 10 wool block, correct? 11 document tells you that? 11 MR. RADCLIFFE: Object to the form. 12 A. The requisitions you get back in the 12 A. On page 113 they said mineral wool 13 range of about 110 to 142. 13 block. 14 Q. Okay. See on page 113 there is a 14 Q. And on page 118 they just say 15 requisition for 552 square feet of 3-inch thick 15 high-temp block, correct? 16 48 insulation or equal high-temperature mineral 16 A. Yes. 17 wool block, correct? 17 Q. Okay. It's not your testimony that 18 A. Yes. 18 this high-temp block on page 118 is mineral 19 Q. If you turn to page 118, this is a 19 wool, is it? 20 requisition for I can't tell how many square 20 A. My testimony was -- 21 feet. Can you tell how many square feet that's 21 MR. RADCLIFFE: Object to form. 22 for, sir? 22 A. -- I don't know. 23 A. It's somewhere like 1,600 to 1,800. 23 Q. You do know that 48 Insulation made 24 Q. That's what I was thinking as well. 24 high-temperature block that contained asbestos, 25 A. Square feet. 25 correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 163 Page 164 1 A. No, I did not know. 1 in the -- in reprographics room, but they also 2 Q. Okay. If you turn, sir, to page 120, 2 looked for them too. The reprographics room is 3 this is another Riley Stoker contract material 3 where we keep the card file. So it's part of 4 requisition, correct? 4 the process when they go through it to find out 5 A. Yes. 5 what we have left. This file is 62 years old. 6 Q. Okay. And at the top it indicates 7 this is an order for two boilers at Interstate 6 Q. Okay. And this requisition on page 7 120 calls for 4,824 square feet of 1 1/2-inch 8 Power Company, correct? 8 high-temp block, correct? 9 A. Yes. 9 A. Yes. 10 Q. Underneath that it says times 6 - 10 Q. It calls for 4,554 square feet of 2 11 applied insulation, correct? 11 1/2-inch thick high-temp block, correct? 12 A. No. That's not times six. That's a 12 A. Yes. 13 drawing reference. 13 Q. It calls for 8,500 pounds of 14 Q. Okay. X6? 14 insulating cement, correct? Pardon me, it 15 A. Yes. 15 calls for 5,500 pounds of insulating cement, 16 Q. Okay. It's a reference to an applied 16 correct? 17 insulation drawing? 17 A. Yes. 18 A. Yes. 18 Q. It calls for 8,700 pounds of finish 19 Q. That drawing was not included in the 19 cement, correct? 20 documents produced, correct? 20 A. Yes. 21 A. It was not included. 21 Q. Now, there's nothing to suggest to you 22 Q. Okay. Does Riley Stoker maintain 22 that this material is mineral wool, is there? 23 copies of drawings relating to its boilers 23 A. No. 24 other than in the contract documents? 24 MR. RADCLIFFE: Object to form. 25 A. They keep -- they have some documents 25 A. But I did want to point out to you is HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 42 (Pages 165 to 168) J. MICHAEL SMITH J. MICHAEL SMITH Page 165 Page 166 1 at the very top of this requisition it says, 1 A. There was nothing in there from 48 on 2 "The following 48 or equal insulations," and 2 interrogatories. 3 that this is just the requisition. What was 3 Q. Okay. So counsel for Riley Stoker 4 actually bought, I don't know what was actually 4 hasn't given you that information, correct? 5 bought in the final. This went from 5 MR. RADCLIFFE: Object to the form. 6 engineering to purchasing, and then they 6 A. I have not seen any. 7 execute whatever they -- they get the bids and 7 Q. Okay. As you sit here today, again, 8 supply the material to the -- 8 just as we looked at before, for the 9 Q. Could be 48 Insulation or a material 9 requisition on page 120 you just don't know 10 that's considered to be equivalent in 10 whether this insulating material contained 11 performance, correct? 11 asbestos or not, correct? 12 A. Right. 12 A. I've already said this twice, no. 13 Q. That's what 48 or equal means, right? 13 Q. And so far we've seen requisitions for 14 A. Yes. 14 a total of 552 square feet of high-temperature 15 Q. In your three-ring binder, your 15 mineral wool block, correct? 16 deposition materials -- you don't have to look 16 MR. RADCLIFFE: Object to the form. 17 at it yet -- you had interrogatories from 17 A. So far. 18 several asbestos product manufacturers, 18 Q. Okay. And on this page alone, page 19 correct? 19 120 alone, we've got almost 9,400 square feet 20 A. From several refractory manufacturers, 20 of let's just refer to it as high-temp block, 21 yes. 21 correct? 22 Q. Okay. You didn't have any 22 A. Yes. 23 interrogatories in there that would provide you 23 MR. RADCLIFFE: Object to the form. 24 information about the asbestos content of 48 24 Q. We've got 13,200 pounds of insulating 25 Insulation, correct? 25 and finish cement, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 167 Page 168 1 A. Yes. 1 A. Approximately, yes. 2 MR. RADCLIFFE: Object to form. 2 Q. On the next page, page 126, it calls 3 Q. 6 1/2 tons? 3 for another 291 linear feet of premolded pipe 4 A. It is what it is. 4 insulation, correct? 5 Q. That's what the math works out to be? 6 You're the engineer not me? 5 6 A. Yes. Q. Okay. It doesn't indicate the 7 MR. RADCLIFFE: Object to the form. 7 material on this, does it? 8 Q. That's what the math works out to be? 8 A. No. 9 A. I didn't do it in my head. 9 Q. Okay. Who would make the decision as 10 Q. If you turn to page 125, sir? 10 to what type of material to purchase for this? 11 A. (Witness complies) 11 A. Purchasing would based on the letter 12 Q. This is a requisition for 85 percent 12 from Fuel Economy, whatever was said there. 13 magnesia premolded pipe insulation, correct? 13 Q. Okay. Fuel Economy being the erector 14 A. Yes. 14 on these boilers, correct? 15 Q. You know all that contains asbestos, 16 correct? 15 16 A. On boilers one and two, yes. Q. Yes. Riley Stoker had certain 17 A. Yes. 17 standards for insulating products that 18 MR. RADCLIFFE: Object to the form. 18 purchasing would look at in fulfilling these 19 Q. Okay. This calls for 510 linear feet 19 requisitions, correct? 20 of one dimension of pipecover, 129 linear feet 20 A. We had this project was at an 21 of another dimension and either 15 or 18 of 21 engineering standard from Sargent & Lundy from 22 another size; is that right? 22 Interstate Power. That was a standard we had 23 A. Yes. 23 to follow as well as the ASME code and the 24 Q. Okay. That's about 650 linear feet, 24 ASTM. And then Riley puts our own stamp on it 25 correct? 25 after reviewing all that to make sure the HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 43 (Pages 169 to 172) J. MICHAEL SMITH J. MICHAEL SMITH Page 169 Page 170 1 configuration, as we looked at this morning, 1 this is another requisition for 48 or equal 2 can be met. 2 insulations high-temp block, correct? 3 Q. Turn sir, to page 128, this is a 3 A. Yes. 4 requisition for, it looks like, about 4 Q. Okay. Same material, you don't know 5 1,892 square feet of 85 percent magnesia 5 one way or the other if it contained asbestos, 6 insulation block, correct? 6 correct? 7 MR. RADCLIFFE: Object to the form. 7 A. Yes. 8 A. Yes. That's what it says. 8 Q. And it calls for 2,484 square feet of 9 Q. Page 129 there is another requisition 9 one size, 954 square feet of another size, 10 form for 85 percent magnesia block, correct? 10 4,320 square feet of another size and 11 A. Yes. 11 1,836 square feet of another size, correct? 12 Q. Okay. This calls for 6,408 square 12 A. Yes. 13 feet of one size, 810 square feet of another 13 Q. It's about 9,500 square feet, isn't 14 size and 126 square feet of another size, 14 it? 15 correct? 15 A. Yes. 16 A. Yes. 16 MR. RADCLIFFE: Object to the form. 17 Q. It's about 7,300 square feet, isn't 17 MR. STUEMKE: Are you objecting to me 18 it? 18 doing math on the record, Counsel? 19 MR. RADCLIFFE: Object to the form. 19 MR. RADCLIFFE: I'm objecting to your 20 A. The total is about 7,300 square feet. 20 questions that are it's about, it's 21 Q. Is this per boiler? 21 approximately, it's this. You want to ask the 22 A. No. 22 question about what it is, ask the question 23 Q. This is total between the two boilers? 23 what it is. Otherwise, I don't think we have a 24 A. Yes. 24 clear record. 25 Q. Okay. If you turn to page 133, sir, 25 MR. STUEMKE: Okay. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 171 Page 172 1 Q. Sir, you understand that I've been 1 in it. 2 asking you for estimates based on the numbers 2 Q. You know it doesn't now or you know it 3 that are provided here, correct? 3 didn't in the 1940s? 4 A. You've given me the estimates pretty 4 A. Mineral wool, everything I've looked 5 much first. 5 at says mineral wool never had asbestos in it. 6 Q. Right. And you've been looking at the 6 Q. Okay. The next page is page 134. 7 numbers, and you've found those number to be 7 This is a requisition for 1,500 pounds of A.P. 8 reasonable estimates, correct? 8 Green cast set, correct? 9 MR. RADCLIFFE: Object to form. 9 A. Yes. 10 A. So far, yes. 10 Q. Okay. What is cast set? 11 Q. This requisition also calls for 11 A. Some kind of refractory material. 12 thousands of square feet of felt, correct? 12 Q. Okay. Does that contain asbestos? 13 A. Yes. 13 A. I don't know. 14 Q. You don't know one way or the other 14 Q. Okay. In your binder which is Exhibit 15 what the composition of that felt is, correct? 15 No. 8 you have interrogatories relating to A.P. 16 A. 8-pound minimum density felt is a 16 Green refractories, don't you? 17 mineral felt. It does not have an asbestos. 17 A. Yes. 18 Q. How do you know that? 18 Q. Why don't we pull those out and take a 19 A. It's a -- I've lived it. 19 look? 20 Q. You've lived felt but not high-temp 20 A. (Witness complies) 21 block? 21 Q. Do you mind if I stand over and look 22 MR. RADCLIFFE: Object to form. 22 at what you're looking at, sir? 23 A. Felt is a -- mineral wool we have been 23 A. This is the materials list they gave 24 using on boilers almost exclusively now for 24 us. It's not listed as an asbestos-containing 25 years, and we know it doesn't have any asbestos 25 material. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 44 (Pages 173 to 176) J. MICHAEL SMITH J. MICHAEL SMITH Page 173 Page 174 1 Q. Okay. 1 A. It's changing the quantity on a 2 A. Can we get a break? 2 previously issued requisition. 3 Q. Sure. One question. Obviously, you 3 Q. I think the previous requisition is 4 don't know anything about the composition of 4 the next page, 138. 5 A.P. Green cast set other thanjust looking at 5 A. Okay. 6 that one chart that's part of the interrogatory 6 Q. There's a description after the term 7 responses in your binder, correct? 7 "poured refractory." Could you read that? 8 A. That's all I know about it, yes. 8 A. EST 3, something. E3. 9 Q. That's the only information you have 9 Q. Okay. Sir, do you know what that term 10 one way or the other? 10 ESTE 3 refers to? 11 A. Yes. 11 A. We just always called it TE 3. It's a 12 Q. Very good. 12 refractory we used. That was a Riley's generic 13 MR. STUEMKE: Yes, we can take a 13 name for it. 14 break. 14 Q. Okay. And, obviously, this is page 15 THE VIDEOGRAPHER: The time is 2:35. 15 137 is calling for 88,000 pounds of that poured 16 We're off the record. 16 refractory, correct? 17 (Recess 2:35 p.m. to 2:43 p.m.) 17 A. That's what it calls for. 18 THE VIDEOGRAPHER: Back on the record. 18 Q. Who are the suppliers of that poured 19 The time is 2:43. 19 refractory, sir? 20 BY MR. STUEMKE: 20 A. I don't know. 21 Q. Sir, if you can turn your attention to 21 Q. Do you know the composition of that 22 page 137. 22 poured refractory? 23 A. (Witness complies) Yes. 23 A. No. 24 Q. This is a specification change in the 24 Q. So this could be calling for 44 tons 25 amount of poured refractory, correct? 25 of an asbestos product or 44 tons of a HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 175 Page 176 1 nonasbestos product. We just don't know? 2 MR. rAdCLIFFE: Object to the form. 1 high-temp cement would have contained asbestos, 2 correct? 3 A. I don't know what the materials 4 consisted of. 5 Q. Okay. Sir, if you look at page 139 -- 3 A. I don't know that. 4 MR. RADCLIFFE: Object to the form. 5 A. I don't know it. 6 A. Yes. 7 Q. -- this is a requisition for 6 Q. You believe it more likely than not? 7 A. I've been told some of it does. 8 firebrick, correct? 9 A. Yes. 10 Q. And it identifies many thousands of 11 pieces of firebrick of varying dimensions, 8 Q. Okay. 9 A. Did. 10 Q. And this says that this 7,000 pounds 11 of high-temperature cement is for "buttering 12 correct? 13 A. Yes. 12 edges of tile and laying FB" -- that's 13 firebrick -- "in the front wall," correct? 14 Q. It also calls for 7,000 pounds of 14 MR. RADCLIFFE: Object to the form. 15 high-temperature cement, correct? 15 A. That's what it says? 16 A. Yes. 16 Q. FB does stand for firebrick? 17 Q. It describes the high-temperature 17 A. That's my understanding. 18 cement as wet, in wide mouth drums. What does 18 MR. RADCLIFFE: Object to the form. 19 that mean, sir? 19 Q. What does it mean to butter edges of 20 A. I'm aware that you can get high-temp 20 tile? 21 cement either wet or dry. And when it's wet, 21 A. It's like building something with 22 they want the wide mouth drums. I've seen that 22 brick, a mason building with brick. When he 23 repeatedly. I've never seen -- personally seen 23 puts the bricks, he butters, he puts the cement 24 the drum. 24 on each side before he puts it in. 25 Q. Okay. You know now that this 25 Q. This is the mortar for the firebrick? HG LITIGATION SERVICES HGLITIGATION.COM HG LITIGATION SERVICES HGLITIGATION.COM 45 (Pages 177 to 180) J. MICHAEL SMITH J. MICHAEL SMITH Page 177 Page 178 1 I mean in the brick analogy, this is like the 1 MR. RADCLIFFE: Object to form. 2 mortar? 2 A. That type of requirement I've seen is 3 A. In the brick analogy, this is the 3 usually the engineer's requirement so they can 4 mortar. 4 actually mark and tag a valve so they can track 5 Q. Okay. In fact, we know that it's 5 it long term. It also often they use it just 6 high-temperature cement, correct? Correct? 6 so they know where they are in the system. 7 A. Yes. 7 Q. Okay. Regardless of whether it's the 8 Q. Let's see, if you turn, sir, to page 8 engineer's requirement or Riley Stoker's 9 152 -- 9 requirement or somebody else's, this is a 10 A. (Witness complies) 10 requirement that you have frequently seen in 11 Q. -- this is a requisition for certain 11 your career in the context of boiler 12 Crane valves; is that correct? 12 construction with respect to valves? 13 A. Yes. 13 MR. RADCLIFFE: Object to form. 14 Q. It also indicates "Each manufacturer 14 A. I have seen it throughout the power 15 supplying valves must clearly mark each and 15 plants. As a site engineer, I'd be dealing 16 every valve furnished by him with the service 16 with all systems. 17 and location for which valve is intended to the 17 Q. Sure. 18 end that the valve packing and trim will be 18 A. This was universely used. It's 19 suitable for the service and that the valve 19 usually the engineer who specifies this is what 20 will be installed in the location for which it 20 you got to do, and you got to comply with it. 21 is intended," correct? 21 Q. So if a valve manufacturer were to 22 A. That's what it says. 22 tell a jury that it never had any idea what its 23 Q. Okay. Was that standard practice for 23 valves were going to be used for, you know that 24 Riley Stoker when requisitioning valves? 24 to be false, correct? 25 A. That usually is -- 25 MR. RADCLIFFE: Objection. Object to HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 179 Page 180 1 the form. 1 was being used. 2 A. I don't know if every valve 2 Q. My question simply is: If Crane Co. 3 requirement had this on it. 3 tells a jury that they were never required to 4 Q. Sure. If Crane Co. told the jury that 4 know the usage or the location of usage for its 5 they never knew what service or process their 5 valves, you know that's a false statement, 6 valves were intended for, you know that's 6 don't you? 7 false, correct? 7 MR. RADCLIFFE: Object to form. 8 MR. RADCLIFFE: Object to form. 8 A. I don't know it's a false because I 9 DEFENSE COUNSEL: Object to form. 9 don't have any documents to show me that they 10 A. This does not -- this doesn't tell you 10 didn't know anything. This says it's a 11 what the valve is going to be used for on this 11 miscellaneous valve. It doesn't -- I don't 12 requisition. It's a miscellaneous valve. 12 know where this is going. I don't know how 13 Q. Right. But it requires the valve 13 they would. 14 manufacturer to mark each and every valve 14 Q. Okay. But this requires them to know, 15 furnished by him with the service and location 15 doesn't it? 16 for which the valve is intended, correct? 16 MR. RADCLIFFE: Object to form. 17 A. That's what it says. 17 A. It says they're supposed to mark the 18 MR. RADCLIFFE: Object to form. 18 valve with the service and location. It is 19 Q. If a valve manufacturer such as Crane 19 what it is. I mean, I can't analyze this. 20 Co. were to tell a jury that they never had any 20 Q. You said this is a requirement that 21 reason to know the service or location for 21 you saw all the time and being, you know, in 22 which its valve were intended, you know that 22 power plants, throughout power plants, right? 23 that's a false statement, don't you? 23 A. Yes, I have. 24 MR. RADCLIFFE: Object to form. 24 MR. RADCLIFFE: Object to form. 25 A. I still don't know where this valve 25 Q. Did valve manufacturers ever comply HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 46 (Pages 181 to 184) J. MICHAEL SMITH J. MICHAEL SMITH Page 181 Page 182 1 with this requirement or was it universely 1 MR. RADCLIFFE: Was that a question? 2 disregarded? 2 Q. On page 133 we had about 9,500 square 3 A. I don't know. 3 feet of high-temp block. So if we add up the 4 MR. RADCLIFFE: Object to form. 4 square footage of either 85 percent magnesia 5 A. I don't know. 5 block insulation or just high-temp block 6 Q. Now, when we were going through 6 insulation that is called for in these 7 earlier, I made notations of the amount of 7 requisitions, we end up with about 8 various high-temperature insulation that was 8 28,000 square feet of block insulation that's 9 not labeled as mineral wool. And I just want 9 not mineral wool. Does that sound about right 10 to sum this up for the jury if we can quickly. 10 to you, sir? 11 On page 120 we had about 9,400 square feet of 11 MR. RADCLIFFE: Object to form. 12 high-temp block and about 13,200 pounds of 12 A. No. We already said we didn't know on 13 insulating and finish cement. Do you recall us 13 a good part of that whether it was or was not, 14 discussing that, sir? 14 mineral wool was listed high-temp block. What 15 MR. RADCLIFFE: Object to form. 15 was actually bought, we don't know. 16 A. You're going over what we already did? 16 Q. Okay. But does 28,000 square feet of 17 Q. Do you recall us discussing those 17 block insulation to cover two boilers, does 18 numbers? 18 that sound about right to you? 19 A. Yes. 19 A. That's not all of it, I don't think, 20 Q. Okay. And on page 125 we had 650 feet 20 because that's duct work. That's more than 21 of 85 percent mag pipecovering. On page 128 we 21 just the boilers. 22 had 1,892 square feet of magnesia block, 22 Q. Okay. It's boiler and associated 23 85 percent mag block. On page 129 we had 23 equipment? 24 7,300 square feet approximately of 85 percent 24 A. Yes. 25 mag block. 25 Q. Okay. And this is block that's HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 183 Page 184 1 furnished by Riley Stoker under the contract, 1 A. There was a lot. You have the number 2 correct? 2 there. That's what was requisitioned. 3 A. It's supplied by Riley through a third 3 Q. And earlier I asked you about the 4 party direct to the jobsite. 5 Q. Okay. Riley makes money off of the 4 insulation on the roof. I thought you told me 5 that all of that was mineral wool? 6 items that they sell as part of the contract, 6 A. No. 7 correct? 7 Q. Okay. So the only block insulation we 8 A. I hope we do. 8 saw in going through these contract documents 9 MR. RADCLIFFE: Object to form. 9 for units number one and two was for 552 square 10 Q. That's the idea? 10 feet of mineral wool block, correct? 11 A. That's the idea. 11 A. No. I don't agree with you. 12 Q. We also saw more than 20,000 pounds of 12 Q. Okay. Well, I'm sorry if I misstated 13 cement of various types. Does that sound like 13 it. Where is the other square footage of 14 about the right amount that would be used in 14 mineral wool block indicated by these 15 the boilers and associated equipment? 15 requisition forms? 16 A. I don't know if that's the correct 16 A. Well, we had all this minimum density 17 amount or not. I know that's what we saw 17 felt which I call -- I'm considering mineral 18 today. 18 wool, 9,000. 19 Q. Okay. Regardless whether this math is 19 Q. My question was restricted to block. 20 exactly right or not, you would agree with me 20 A. A thousand square feet on page 114. 21 that there were tens of thousands of square 21 That's just another thousand. 22 feet of high-temperature insulating block as 22 Q. Page 114 was also for mineral wool 23 called for to insulate these boilers and 23 felt, correct? 24 associated equipment, correct? 24 25 MR. RADCLIFFE: Object to the form. 25 A. Yes. Q. The only block that we saw in all of HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 47 (Pages 185 to 188) J. MICHAEL SMITH J. MICHAEL SMITH Page 185 Page 186 1 these requisitions that indicated it was 1 Q. Okay. And Flexitallic gaskets, 2 mineral wool was 552 square feet? 2 correct? 3 A. That's correct. 3 A. Yes. 4 Q. As opposed to almost 30,000 square 4 Q. You understand Flexitallic gaskets to 5 feet of block which was either 85 percent 5 be an asbestos-containing product? 6 magnesia or simply labeled as high-temp block, 6 A. Yes. 7 correct? 7 Q. There's also a lot of asbestos 8 A. Yes. 8 millboard that's specified for this boiler, 9 MR. RADCLIFFE: Object to form. 9 correct? 10 Q. Now, earlier -- and I apologize if I 10 A. There is asbestos millboard 11 misstate this -- I thought you told the jury 11 requisitioned for the boiler. 12 that the boiler proper was insulated just with 12 Q. Okay. As far as you know, all of the 13 mineral wool, not with asbestos? 13 insulating and finish cement that was called 14 A. I said the boiler proper was insulated 14 for was asbestos-containing, correct? 15 with the plastic, with the shiplap tile or 15 A. I do not know that. I've already 16 tile, high-temp block, then mineral wool over 16 stated that. 17 that. 17 Q. Okay. You don't have any information 18 Q. Okay. So if all almost 30,000 square 18 that any of those cements were available in 19 feet of this 85 percent mag or high-temp block 19 that time frame in a nonasbestos formulation, 20 is asbestos containing, then you would agree 20 correct? 21 that there was -- strike that. 21 MR. RADCLIFFE: Object to form. 22 We haven't talked about the 22 A. I don't know what they contained. 23 requisitions also indicate that there are 23 Q. All right. 24 asbestos handhold gaskets, correct? 24 MR. STUEMKE: Let's take a short break 25 A. Yes. 25 just to change the videotape. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 187 Page 188 1 THE VIDEOGRAPHER: This is the end of 1 reserve whatever rights you want, I'm not 2 tape number three. The time is 3:01. We're 2 agreeing that you can take this deposition 3 off the record. 3 again. I think -- just so the record is clear, 4 (Recess 3:01 p.m. to 3:04 p.m.) 4 I think that you've spent an inordinate amount 5 THE VIDEOGRAPHER: Back on the 5 of time asking questions that have been covered 6 stenographic record. 6 in previous depositions. You've demonstrated 7 mR. RADCLIFFE: It's three o'clock by 7 that you are well aware of this witness' 8 my time. I'm obviously attending by phone, so 8 testimony from past transcripts. It just 9 I'm having difficulty being able to gauge the 9 doesn't seem to me that we've moved as 10 fatigue level of the witness. But I have 10 expeditiously as we could. 11 spoken with Mr. Saul, who is present in the 11 MR. STUEMKE: Okay. Number one, there 12 room with the witness, and based on the amount 12 was never any indication given to us that this 13 of time that we've taken so far and where 13 deposition was going to be limited in time 14 things stand, we're going to have to end this 14 until now when you're telling me that I have 15 deposition at four o'clock. The witness has 15 54 minutes to conclude the entire deposition. 16 been up since a very early hour, and it's 16 I have more material than that, as you well 17 reaching a point where he's just going to not 17 know because you've asked me off the record. 18 be able to perform under the questioning. So, 18 Now to tell me with 54 minutes remaining that I 19 Mr. Stuemke, you've got until four o'clock to 19 have to conclude in that amount of time is bad 20 conclude the deposition. You can reserve any 20 faith. It's absurd. Now, if you will agree to 21 of the right that you want, but we're just 21 reproduce the witness to continue the 22 going to have to end it at four. 22 deposition tomorrow morning, that's fine. 23 THE WITNESS: I still have a two-hour 23 Otherwise, we are going to have a very serious 24 drive. 24 problem. And by "we," I mean Riley Stoker 25 MR. RADCLIFFE: And by saying you can 25 because we are entitled -- Mr. Radcliffe are HG LITIGATION SERVICES HGLITIGATION.COM HG LITIGATION SERVICES HGLITIGATION.COM 48 (Pages 189 to 192) J. MICHAEL SMITH J. MICHAEL SMITH Page 189 Page 190 1 you there? 1 be unable to go a full day, you should have 2 MR. RADCLIFFE: I think somebody who 2 sought a motion for protection. You should 3 was participating has hung up, and now we're 3 have at least advised us in advance so we could 4 getting a message. But I didn't hear the end 4 make the appropriate motion to the court. Now 5 of what you said. 5 I need to be able to conclude this deposition 6 MR. STUEMKE: I stopped. 6 tomorrow morning. 7 MR. RADCLIFFE: Okay. 7 MR. RADCLIFFE: I think that your 8 MR. STUEMKE: Now, will you agree to 8 logic is a little bit faulty. Had I known that 9 reproduce the witness for deposition tomorrow 9 you were going to spend at least an hour or two 10 morning? 10 replowing old ground, including ground that was 11 MR. RADCLIFFE: I cannot agree to 11 covered by your office a couple of months ago, 12 produce him tomorrow morning. 12 I would have informed you immediately of the 13 MR. STUEMKE: Why not? I'm already 13 time constraints. 14 here. If I have to come back, you're going to 14 MR. STUEMKE: I'm sorry that I didn't 15 pay for our travel expenses. 15 tell you my deposition strategy before I got 16 MR. RADCLIFFE: Now, well, you can ask 16 here. 17 for your travel expenses, but you certainly 17 MR. RADCLIFFE: Can I finish? Am I 18 can't tell me that I'm going to pay for your 18 allowed to finish? 19 travel expenses. 19 MR. STUEMKE: I don't know. How much 20 MR. STUEMKE: I'm sorry, if my manners 20 more of the witness' time do you intend to use 21 offend you. I've just been given 50 minutes to 21 up? I say we just get the judge on the phone. 22 conclude a deposition, which is the first time 22 MR. RADCLIFFE: You're the one who is 23 there's ever been any indication that you 23 making a record. Am I allowed to reply? 24 proposed any kind of a time limit to this 24 MR. STUEMKE: In my time, sure, why 25 deposition. If you thought the witness would 25 not. I'm a generous guy. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 191 Page 192 1 MR. RADCLIFFE: Well, if you want to 1 frankly unbelievable, Tom. 2 talk about a waste of time, then you have to 3 look at what you've done. You have not used 2 MR. RADCLIFFE: It's not a delay 3 tactic. I'm not trying to delay your case. We 4 your time as efficiently as you could. If you 4 also have schedules to work around. I'm trying 5 want to -- if you're going to tell me that you 5 to work with you. 6 have a specific amount of time within which you 6 MR. STUEMKE: The deposition continues 7 will complete this deposition, I will work with 7 tomorrow morning or we get the judge on the 8 you to reschedule it. It cannot be tomorrow 8 phone. 9 morning. 9 MR. RADCLIFFE: You know, I'm not 10 MR. STUEMKE: Why not? 10 prepared to go before the judge right now, 11 MR. RADCLIFFE: It might have to be on 11 although -- 12 Saturday. 12 MR. STUEMKE: I bet you're not. 13 MR. STUEMKE: Why would it have to be 13 MR. RADCLIFFE: -- I've been admitted 14 on Saturday? We can do this tomorrow morning. 14 pro hoc in this case, I believe as I am 15 We noticed the deposition continuing from day 15 required to have South Carolina counsel with me 16 to day. We didn't notice it to do at your 16 as I believe you are. I don't think that it's 17 convenience. You produced the witness. The 17 appropriate for us to call the judge on this 18 notice of deposition states, "The deposition 18 issue. If you want to try to work it out, I'm 19 shall continue from day to day, excluding 19 happy to work it out. 20 Saturdays and holidays, until completed." 21 That's on the notice to which you did not 22 object. Now, we need to get this thing done. 23 We have trial starting on Monday. This is a 24 blatant delay tactic. It's designed to 25 prejudice the plaintiff's case. This is 20 MR. STUEMKE: Fine. Produce the 21 witness tomorrow. 22 MR. RADCLIFFE: If you want to go 23 before the judge, we'll take it before the 24 judge when we can. 25 MR. STUEMKE: Produce the witness HG LITIGATION SERVICES HGLITIGATION.COM HG LITIGATION SERVICES HGLITIGATION.COM 49 (Pages 193 to 196) J. MICHAEL SMITH J. MICHAEL SMITH Page 193 Page 194 1 tomorrow. If you can't do it to tomorrow 1 making your bogus record. 2 morning, let's do it tomorrow afternoon 2 MR. RADCLIFFE: You know, those are 3 starting at one. 3 the kind of comments that are not designed to 4 MR. RADCLIFFE: Tomorrow is not an 4 deal in good faith with the issue that we have. 5 available day. I have commitments tomorrow and 5 MR. STUEMKE: You know, I'm sorry if 6 Friday. 6 I'm a bit perturbed. 7 MR. STUEMKE: Mr. Smith, are you 7 MR. RADCLIFFE: If that's the record 8 available tomorrow? 8 you want to make, you go ahead and make that 9 THE WITNESS: I believe so. 9 record. But right now I'm trying to deal with 10 MR. STUEMKE: Mr. Saul, are you 10 you on a specific timing issue. Are you 11 available tomorrow? 11 available Saturday? 12 MR. SAUL: I'll have to check and see. 12 MR. STUEMKE: No, I'm not available on 13 MR. STUEMKE: Mr. Radcliffe, Riley 13 Saturday. Believe it or not, I intend to 14 Stoker has a bunch of lawyers. The witness 14 comply with the notice which says that it shall 15 said he's available. The deposition is noticed 15 continue from day to day, excluding Saturdays 16 of Riley Stoker. We're going to continue 16 and holidays until completed. 17 tomorrow. 17 MR. RADCLIFFE: What about Sunday? 18 MR. RADCLIFFE: Well, you're not going 18 MR. STUEMKE: Well, if we get to 19 to continue tomorrow if the witness doesn't 19 Sunday after Thursday and Friday, that's fine, 20 show up. Let's do it on Saturday. How many 20 but the notice says day to day; that's 21 hours do you need? 21 tomorrow. 22 MR. STUEMKE: I told you I probably 22 MR. RADCLIFFE: What about Monday 23 had three hours at most. I don't know for sure 23 evening after court? 24 how long it's going to take. I don't know how 24 MR. STUEMKE: No. Monday evening 25 much more of my time you intend to use up 25 after court doesn't work, surprise, surprise. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 195 Page 196 1 We need to get the deposition done. The 1 MR. RADCLIFFE: I am not in court 2 witness is available tomorrow. Let's do it. 2 tomorrow. 3 MR. RADCLIFFE: I am not available 3 MR. STUEMKE: Let's do it tomorrow. 4 tomorrow. 4 MR. RADCLIFFE: I am unavailable 5 MR. STUEMKE: I didn't know that you 5 tomorrow. 6 were an essential party to this deposition, 6 MR. STUEMKE: Let's go back on the 7 sir. 7 video record. 8 MR. RADCLIFFE: Well, are you an 8 MR. RADCLIFFE: Let me take that back. 9 essential party to the deposition? 9 I am available tomorrow. Unfortunately, it's 10 MR. STUEMKE: It's my deposition, Tom. 10 not until very late in the evening at 11 MR. RADCLIFFE: Okay. Well, it's my 11 six o'clock. So if you want to do it starting 12 deposition to defend. If you're an essential 12 at six o'clock tomorrow evening, I'm happy to 13 party, I'm an essential party. Your firm has 13 continue. 14 extra lawyers. Get one of your other lawyers 14 MR. STUEMKE: Let the record reflect 15 to do it on Saturday. 15 the witness may be becoming exasperated with 16 MR. STUEMKE: Are you going to pay for 16 both of us. 17 my expenses to come up here, Tom? 17 THE WITNESS: I'm getting very tired. 18 MR. RADCLIFFE: I'm not going to pay 18 I've been on the road for 10 hours. I have two 19 your expenses to come up here. I'm going to 19 more to go. 20 work with you in good faith like we have in the 20 MR. RADCLIFFE: We're ending at four; 21 past, like your firm has worked with us in the 21 it's only 45 more minutes. Are you okay to 22 past. 22 continue for 45 more, Mr. Smith? 23 MR. STUEMKE: You can start on that 23 THE WITNESS: Yes. 24 now by agreeing to produce the witness 24 MR. RADCLIFFE: Okay. 25 tomorrow. Are you in court tomorrow, Tom? 25 THE VIDEOGRAPHER: Just a suggestion HG LITIGATION SERVICES HGLITIGATION.COM HG LITIGATION SERVICES HGLITIGATION.COM 50 (Pages 197 to 200) J. MICHAEL SMITH J. MICHAEL SMITH Page 197 Page 198 1 off the record, but what if you got him a hotel 1 Saul for a moment if I can. Jason, will you 2 room or something so he didn't have to drive, 2 call me on my cell? 3 and finish it tonight or today. 3 MR. SAUL: Sure. Give me just a 4 MR. STUEMKE: The videographer makes a 4 second here to step away. 5 very good suggestion. In order to -6 MR. RADCLIFFE: I couldn't hear him. 5 6 (Recess 3:16 p.m. to 3:19 p.m.) Mr. RADCLIFFE: I've spoken with Mr. 7 MR. STUEMKE: In order to alleviate 7 Saul. I'm at somewhat of a disadvantage 8 the witness' concern over having a two-hour 8 because I'm not there to physically observe Mr. 9 drive tonight, perhaps Riley Stoker would agree 9 Smith and make a determination as to whether or 10 to provide him a hotel room for the -- so we 10 not he's fatigued and not ready to continue. 11 could conclude without him having to drive 11 Mr. Saul has provided me input on that issue. 12 home. If the concern actually is that the 12 Based on Mr. Stuemke's representation that 13 witness is too tired to continue and may not 13 he'll conclude no later than six tonight, we 14 safely drive home, I think that would be a 14 can continue past four as long as the witness 15 reasonable accommodation. 15 is not overly fatigued. And not to give him a 16 MR. RADCLIFFE: Just to continue at 16 hard time, but he is a retired gentleman. He's 17 what time? 17 60-something years old. We've been going since 18 MR. STUEMKE: To continue it today; 18 ten o'clock with a 40-minute break for lunch, 19 that way the witness doesn't have to have a 19 about a five-minute break every hour or so and 20 two-hour drive home today. 20 he was up early to drive to Boston. So Mr. 21 MR. RADCLIFFE: What time would you 21 Stuemke, go back on, continue to ask your 22 finish today? 22 questions. Mr. Saul is going to be my eyes for 23 MR. STUEMKE: At the very latest I'm 23 me. If he thinks that the witness is overly 24 sure I'd be done by six, probably earlier. 24 fatigued and not able to answer questions, 25 MR. RADCLIFFE: Let me speak with Mr. 25 we'll have to revisit this issue. Based on HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 199 Page 200 1 your representation that you'll finish by no 1 Riley Stoker, correct? 2 later than six, let's keep going. 2 A. Labor was also subcontracted by Riley 3 MR. STUEMKE: Very good. Back on the 3 to a contract change order later on. 4 video record. 5 THE VIDEOGRAPHER: This is the 4 Q. Okay. So FEE Company, which was the 5 erector, was a subcontractor of Riley's, not of 6 beginning of tape number four. We're back on 6 the purchaser? 7 the record. The time is 3:20. 7 A. Yes. That was a change as the 8 BY MR. STUEMKE: 8 contract went forward. 9 Q. Are you ready to continue, sir? 9 Q. Okay. Unit number three was a larger 10 A. Yes. 10 boiler than units number one and two, correct? 11 Q. Very good. I'd like to turn your 11 A. Yes. 12 attention, sir, to the collection of documents 12 Q. Okay. Going back to units one and 13 that begins at Bates numbered page 217. This 13 two, were they identical? 14 is for Interstate Power Company boiler number 14 A. Yes. 15 three, correct? 15 Q. And looking at the drawing, can you 16 A. Yes. 16 get the drawing out for units number one and 17 Q. In the scope of work section of your 17 two real quick, please? 18 contract review document which is Exhibit 11, 18 A. (Witness complies) 19 you indicated on the material line only and 19 Q. Can you provide the jury a rough 20 circled that. What does that mean, sir? 20 approximation of the height and width of units 21 A. That's all we supplied on that unit. 21 number one and two? 22 We just supplied the material, no labor, no 22 A. Units one and two were 73 feet high, 23 supervision. 23 27 feet wide -- I mean, deep, and 16 feet wide. 24 Q. Opposed to the prior contract we 24 Q. Okay. I made you get out those 25 looked at where supervision was provided by 25 drawings out unnecessarily because you already HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 51 (Pages 201 to 204) J. MICHAEL SMITH J. MICHAEL SMITH Page 201 Page 202 1 knew that, didn't you? 1 Q. And the setting, okay. Are there 2 A. That's why. 2 differences in the way in which units one and 3 Q. Very good. And the 73 feet high, 3 two were insulated in comparison with unit 4 that's from the top of the boiler to ground 4 three? 5 level, correct? 5 A. The configuration of the boiler was a 6 A. Yes. 6 little bit different so they had some different 7 Q. Okay. 7 tube spacing in certain areas, but, 8 A. To the floor, the operating floor, 8 essentially, for the boiler setting it was the 9 basement floor in this case. 9 same. It had plastic refractory, the tile, 10 Q. Okay. And unit number three was 10 high-temp block, mineral wool, depending on 11 12 feet higher, 21 feet deeper and 8 feet 11 where you were, and the casing had a complete 12 wider; is that correct? 12 10-gauge welded casing totally air tight all 13 A. Yes. 13 around the boiler. 14 Q. Unit number three operated at the same 14 Q. Okay. And that was true for units one 15 pressure, correct? 15 and two also? 16 A. Same pressure and temperature. 16 A. Right. They're both sealed up, yes. 17 Q. Yes. With respect to unit number 17 Everything that's inside the casing is sealed. 18 three, although Riley Stoker was not 18 Q. Unless it's open to do repair or 19 responsible for any labor or supervision of 19 maintenance? 20 erection, they were still responsible for 20 A. Repair, not for maintenance. 21 insulation, correct? 21 Q. Or inspections? 22 A. Insulation and setting. 22 A. They don't open for inspections. We 23 Q. I'm sorry, I didn't understand your 23 don't open that casing. 24 answer. 24 Q. I'd like you to turn to Bates label 25 A. Insulating and setting. 25 page 243, please? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 203 Page 204 1 A. (Witness complies) 1 Q. Do you know if Iowa had any 2 Q. This indicates that "Contractor shall 2 Occupational Safety & Health regulations in the 3 cause the work to comply with all applicable 3 1950s? 4 laws, ordinances and regulations of any public 4 A. I do not. 5 authorities having jurisdiction." Is that 5 Q. If you turn to page 306, sir -- 6 correct? And then it goes on, correct? 6 A. (Witness complies) 7 A. Yes. 7 Q. -- it says, "Specification for calcium 8 Q. Sir, to your knowledge did -- number 8 silicate pipe insulation," correct? 9 one, was this a fairly standard provision in a 9 A. It's a requisition, contract material 10 contract in the 1950s and 1960s? 10 requisition for cal sil pipe insulation. 11 A. I don't know. 11 Q. Okay. It indicates that it is to 12 Q. Have you seen provisions similar to 12 replace material and correctly specified? 13 this before? 13 A. Yes. 14 A. Yes. 14 Q. Is the word "specified" use correctly 15 Q. What steps did Riley Stoker take, if 15 there, sir? 16 any, to ensure that the work relating to unit 16 MR. RADCLIFFE: Object to the form. 17 number three complied with all applicable laws, 17 Q. Or can you tell? 18 ordinances and regulations? 18 A. We specified a certain thickness based 19 A. It has to comply with ASME, Hartford 19 on input from vendors, and it was the incorrect 20 Steam Boiler, Iowa and the customer's 20 thickness if you find the other requisition. 21 specifications. 21 This is a work correction order. 22 Q. Okay. Would it have to comply with 22 Q. Okay. Is there any mineral wool block 23 Occupational Safety & Health regulations? 23 that was used to insulate unit number three, 24 A. If they existed. 24 sir? 25 MR. RADCLIFFE: Object to the form. 25 A. There was mineral wool felt specified HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 52 (Pages 205 to 208) J. MICHAEL SMITH J. MICHAEL SMITH Page 205 Page 206 1 by the owner. 1 Q. Okay. That's 11,744 square feet 2 Q. Okay. Was there any mineral wool 2 approximately, correct? 3 block, sir? 3 A. Yes. 4 A. I don't know. 4 MR. RADCLIFFE: Object to form. 5 Q. Okay. You went through the 5 Q. Okay. It calls for 10,750 pounds of 6 requisition forms and made notations of type of 6 power house cement, correct? 7 insulation that were called for, correct? 7 A. Yes. 8 A. Yes. 8 Q. Did power house cement contain 9 Q. Okay. And you didn't make any 9 asbestos? 10 notations that there was mineral wool block to 10 A. I don't know. 11 be used, correct? 11 Q. Do you see there is a letter B next to 12 A. Correct. 12 the second high-temperature block size? Do you 13 Q. If you would turn sir, to page 344? 13 see that? 14 A. (Witness complies) I'm there. 14 A. Yes. 15 Q. This is a requisition for insulation 15 Q. Okay. And that is for Baldwin Hill, 16 material, correct? 16 correct? 17 A. Yes. 17 A. No. 18 Q. It calls for high-temperature block 18 MR. RADCLIFFE: Object to form. 19 insulation of either 1 1/2-inch thickness or 19 Q. What does B represent, sir? 20 2-inch thickness, correct? 20 A. It represents the area where it was 21 A. That's part of it, yes. 21 used. 22 Q. It calls for 3,690 square feet on one 22 Q. Okay. 23 size and 8,054 square feet on another size, 23 A. It's a reference right below it. 24 correct? 24 Q. Okay. So down at the bottom there's a 25 A. Yes. 25 line that has the B in front of it. What does HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 207 Page 208 1 that line indicate? 1 moment. Mr. Saul, I've had something that I've 2 A. That's where it was used. 2 got to handle come up. I'll try to come back 3 Q. Okay. I'm sorry, sir, I'm looking 3 in, but for the mean time, can you take over as 4 here at the bottom of the page. There's A, B, 4 counsel for Riley? 5 C, D, and E at the bottom left. Do you see 5 MR. SAUL: Sure, Tom. 6 that? 6 MR. RADCLIFFE: Okay. If anything 7 A. Yes. 7 comes up, call me on my cell. I'll try to join 8 Q. Okay. In line B it says "Sup 2." Do 8 back in. Excuse the interruption. 9 you see that? 9 MR. SAUL: All right. 10 A. Yes. 10 Q. Sir, if you turn to page 352? 11 Q. Then it says "Baldwin Hill." Do you 11 A. (Witness complies) Okay. I'm there. 12 see that? 12 Q. And this calls for the same type of 13 A. Yes. 13 poured refractory that we discussed with 14 Q. What does Baldwin Hill represent here? 14 respect to units number one and two, correct? 15 A. I believe that would probably be the 15 A. TE 3,yes. 16 supplier. 16 Q. This calls for 62,000 pounds of that, 17 Q. Do you know, sir, that Baldwin Hill 17 correct? 18 manufactured asbestos-containing high-temp 18 A. No. It calls for 24,000 pounds of TE 19 block in the 1950s? 19 3, 6,000 pounds of TE 3A and 32,000 of TE 12. 20 MR. RADCLIFFE: Object to the form. 20 Q. Totalled up it's 62,000 pounds, 21 A. I don't know when they made it. I'm 21 correct? 22 aware they have made products with asbestos in 22 A. Yes. 23 it. 23 Q. And do you know the differences, if 24 Q. Okay. 24 any, between E 3A, E 3 and E 12? 25 MR. RADCLIFFE: Excuse me for a 25 A. No. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 53 (Pages 209 to 212) J. MICHAEL SMITH J. MICHAEL SMITH Page 209 Page 210 1 Q. You indicated earlier this was just 1 Refractories is located in the country of 2 kind of a Riley Stoker generic reference to 2 Mexico or in Mexico, Missouri? 3 refractory; is that correct? 3 A. I believe it was located in the 4 A. To two types of refractory, that's 4 states. 5 correct. 5 Q. Okay. Why do you believe that? 6 Q. Okay. Where could we go to find out 6 A. Because someone told me that, and I 7 what the composition of that refractory 7 don't remember who. 8 material was? 8 Q. Okay. 9 A. We should have been able to go to the 9 A. I thought it was out of the country, 10 engineering standards for that time, but they 10 and I was corrected on that. 11 don't exist because as standards get 11 Q. As with units one and two, the 12 superceded, they get destroyed. 12 contract documents for unit three reflect pipe 13 Q. Okay. 13 insulation, correct? 14 A. That's what this ES stands for, 14 A. Yes. 15 engineer standard. TE 3, TE 3A, TE 12. 15 Q. Okay. That would be furnished by 16 Q. So at this point it's anybody's guess 16 Riley Stoker under its contract, correct? 17 as to what was in that refractory material? 17 A. Yes. 18 A. Unless you found the purchase order to 18 Q. And this was calcium silicate pipe 19 Mexico Refractories and find out what we 19 insulation, correct? 20 actually bought, that would be the only way, or 20 A. On this contract it was cal sil. 21 you tested it. 21 Q. Okay. Also asbestos rope, correct? 22 Q. Do you have any information as to the 22 A. Yes. 23 products manufactured by Mexico Refractories? 23 Q. Asbestos millboard, correct? 24 A. I do not. 24 A. Yes. 25 Q. Do you know whether Mexico 25 Q. Flexitallic gaskets, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 211 Page 212 1 A. Yes. 1 A. Legal talk. 2 Q. You understand those to be 2 Q. I've tried to talk a little bit of 3 asbestos-containing, correct? 3 engineering to you, but that just gets me in 4 A. Yes. 4 trouble. 5 Q. And I am not sure that I located all 5 A. All right. 6 the references to block insulation here, but 6 Q. Do you mind if I peer over your 7 the one that we talked about on page 344 called 7 shoulder here? 8 for 11,744 square feet of insulating material, 8 A. Please. What am I looking for here? 9 correct, of high-temp block, correct? 9 These are the products they said. 10 A. Yes. 10 Q. Okay. For the record, we are looking 11 Q. And that was supplied by Baldwin Hill, 11 at Exhibit 8, tab No. 25 which are 12 correct? 12 interrogatory answers of Keene Corporation, 13 A. Yes. 13 correct? 14 Q. Sir, in your three-ring binder you 14 A. Yes. 15 have interrogatories of Keene Corporation, 15 Q. Okay. That indicates that Keene 16 correct? 16 Building Products Corporation and its corporate 17 A. There is one with Keene, I believe. 17 predecessors, including the Baldwin Hill 18 Q. Let's pull that out. I'll represent 18 Company manufactured the following thermal 19 to you that Keene Corporation is a successor in 19 insulation products which contained varying 20 interest to Baldwin Hill? 20 amounts of asbestos fiber, correct? 21 A. Which means? 21 A. That's what this says, yes. 22 Q. That there were various name changes 22 Q. Baldwin Hill manufactured -- it 23 and acquisitions. Keene Corporation became 23 appears that they manufactured 85 percent 24 responsible for the Baldwin Hill insulating 24 magnesia pipe and block covering, correct? 25 products manufactured in the '50s. 25 A. Yes. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 54 (Pages 213 to 216) J. MICHAEL SMITH J. MICHAEL SMITH Page 213 Page 214 1 Q. In the time frame that unit three was 1 insulation in that time frame, do you, sir? 2 constructed, correct? 2 A. I don't know. 3 A. Yes. 3 Q. I'd like to turn your attention, sir, 4 Q. They manufactured monoblock 4 to page 371. This is a requisition for valves, 5 high-temperature insulation, correct? 5 correct? 6 A. Yes. 6 A. Yes. 7 Q. In the time frame that unit three was 7 Q. And the requisition includes packing 8 constructed, correct? 8 which is identified as Garlock No. 935, 9 A. Right. 9 correct? 10 Q. And that indicates that it was 10 A. It's 9 something. Mine is a little 11 manufactured by B-H which you understand refers 11 bit fuzzy. 12 to Baldwin Hill, correct? 12 Q. Look at mine? 13 A. And BEH also. 13 A. 935, 925. 14 Q. Yes, sir. Also indicates -- strike 14 Q. Okay. You don't have any reason to 15 that. 15 dispute that was an asbestos-containing packing 16 The only block high-temperature 16 material, do you? 17 insulation indicated in those interrogatories 17 A. I don't know. 18 that was manufactured directly by Baldwin Hill 18 DEFENSE COUNSEL: Object to form. 19 is the monoblock high-temperature insulation, 19 Q. Sir, in addition to your review of 20 correct? 20 these contract documents, did you review any 21 MR. SAUL: Objection to form. 21 deposition testimony taken in this case? 22 A. Yes. 22 A. Yes. 23 Q. You don't have any reason to think 23 Q. What deposition or depositions did you 24 that Baldwin Hill manufactured a 24 review? 25 nonasbestos-containing high-temperature 25 Let me withdraw that question. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 215 Page 216 1 There's one other thing I want to ask you about 1 total of three revisions after that, correct? 2 before we move on to that. 3 MR. STUEMKE: Let's mark this as the 2 A. It looks like there's one more down 3 the bottom there. 4 next exhibit, please. 5 (Exhibit No. 12, Riley Stoker 6 Engineering Standards so marked) 7 Q. You can set the contract documents 8 aside if you'd like. 9 A. I don't know where all the exhibits 4 Q. Okay. 5 A. I can't read it. 6 Q. At any rate this has been revised? 7 This was revised several times to get to this 8 version, correct? 9 A. Yes. 10 are. 11 Q. We'll find them later. They're all 10 Q. Okay. This is the Riley Stoker 11 engineering standard for trowelable lightweight 12 floating around somewhere. You've been handed 12 plastic refractories, correct? 13 Exhibit No. 12, sir. Are you familiar with 13 A. That's what it says. 14 this document? 14 Q. Okay. You don't have any reason to 15 A. No. 15 dispute that, do you? 16 Q. Okay. This is, according to the 16 A. No. 17 document, a Riley Stoker Corporation 17 Q. This is what engineering standards 18 engineering standard, correct? Do you see that 18 from Riley Stoker looked like, correct? 19 at the top? 19 MR. SAUL: Objection to form. 20 A. Yes. 21 Q. Okay. This indicates that it was 22 originally issued it appears to be January 25, 23 1950, correct? 24 A. Yes. 25 Q. It appears to have had four -- or a 20 A. Not always, no. 21 Q. This is a format you've seen them in 22 before, though, correct? 23 A. I've seen this format before. 24 Q. Okay. Did you say that you'd never 25 seen this document before or do you recall? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 55 (Pages 217 to 220) J. MICHAEL SMITH J. MICHAEL SMITH Page 217 Page 218 1 A. I don't remember. 1 asbestos? 2 Q. Do you know which, if any, of the 2 A. Yes. 3 refractory materials that are listed here 3 Q. You don't have any information one way 4 contain asbestos? 4 or the other about the asbestos content of any 5 A. No. 5 of the other products identified on Exhibit 12, 6 Q. In your binder you have 6 correct? 7 interrogatories from A.P. Green, correct? 7 A. That's correct. 8 A. Yes. 8 Q. Okay. Do you have any reason to 9 Q. Okay. Do you know if you have any 9 dispute that they also contained asbestos? 10 interrogatories for any of these other 10 A. I don't know. 11 manufacturers that are identified here? 11 Q. Okay. In the 1940s and 1950s, did 12 A. I don't remember. I don't believe so. 12 Riley Stoker know whether the refractory 13 Q. Could we look real quick at the A.P. 13 products it was using with its boiler contained 14 Green interrogatories? Actually, the relevant 14 asbestos? 15 page is on the last page of this I believe. 15 A. Not to my knowledge. 16 Here we go. You see in Exhibit 12 there's an 16 Q. But you don't know one way or the 17 A.P. Green refractory product known as SK 7, 17 other? 18 correct? 18 A. No. 19 A. Yes. 19 Q. You reviewed certain depositions taken 20 Q. Do you see SK 7 here? 20 in this case, correct? 21 A. Yes. 21 A. Yes. 22 Q. You see that was manufactured from 22 Q. Which depositions did you review? 23 1953 to 1972? 23 A. I reviewed Gary W. Lenz, Senior's 24 A. Yes. 24 Volume I deposition and Volume II deposition, 25 Q. And that it contained 2.3 percent 25 Volume III video deposition and Volume IV. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 219 Page 220 1 Q. Okay. And you made notes relating to 1 correct? 2 those depositions, correct? 2 A. That's correct. 3 A. Yes. 3 Q. Okay. We turn to your review of his 4 Q. Okay. Could we remove your notes from 4 deposition Volume II. You made a note that he 5 each volume of the deposition and mark the 5 testified there was a Riley Stoker boiler at 6 notes collectively as the next exhibit, No. 6 Interstate Power, correct? 7 13. We can have a copy made at a break. 7 A. Yes. 8 A. (Witness complies) There are no 8 Q. All right. And you note he worked 9 notes for Volume IV. 9 there as an equipment operator between '71 and 10 THE WITNESS: Can we take a break. 10 '74, correct? 11 MR. STUEMKE: Sure. 11 A. Yes. 12 THE VIDEOGRAPHER: The time is 3:52. 12 Q. You don't have any information to 13 We're off the record. 13 dispute either of those things, correct? 14 (Recess 3:52 p.m. to 4:01 p.m.) 14 A. No. That's what he said. 15 (Exhibit No. 13, Handwritten Notes of 15 Q. And you indicate that on page 195 he 16 Lenz Depositions so marked) 16 said that he did no work directly on the 17 THE VIDEOGRAPHER: Back on the record. 17 boilers at Interstate Power, correct? 18 The time is 4:01. 18 A. Correct. 19 BY MR. STUEMKE: 19 Q. With respect to your review of the 20 Q. Sir, we have marked the notes that you 20 videotaped deposition of Mr. Lenz, you indicate 21 took relating to your review of Mr. Lenz's 21 that page one of seven that he testified he 22 various depositions as Exhibit 13. Sir, with 22 never personally did any physical work at IP in 23 your review of Volume I of his deposition, you 23 Lansing, Iowa. Is that what your note reads? 24 did not make any notations nor was there any 24 A. That's what it reads. 25 testimony relating to Riley Stoker boilers, 25 Q. I'd like you to turn, please, to page HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 56 (Pages 221 to 224) J. MICHAEL SMITH J. MICHAEL SMITH Page 221 Page 222 1 107 of that deposition, please. 1 people who were doing some kind of work but not 2 A. (Witness complies) Yes. 2 repair work because he stated that anyone who 3 Q. Okay. Now, where on page 107 does he 3 did repair work cleaned up their own stuff. He 4 testify that he never did any physical work at 4 only did -- when he was on housekeeping, he 5 IP? 5 only did general housekeeping, sweeping the 6 A. Line 13 he was asked that question. 6 floor. 7 Q. Line 13 he's asked, "You never 7 Q. And you indicated that at page 112 Mr. 8 personally did any of that work at Lansing; is 8 Lenz said that he rebricked the Riley boiler; 9 that fair?" And he says, "That's fair." 9 is that right? 10 A. Yes. 10 A. He participated in the rebricking. 11 Q. The work is referring to the question 11 Well, he said, "I rebricked part of the furnace 12 that begins at line 5, correct? 12 on number three while I was there." 13 A. That's my understanding. 13 Q. Okay. And you don't have any reason 14 Q. Okay. You're not saying that he had a 14 to dispute that that's true, correct? 15 job at the power plant that didn't require him 15 A. Yes, I do. 16 to do any work, are you? 16 Q. Why? 17 A. No. 17 A. There is no brick on the furnace -- in 18 Q. Okay. What you were meaning to state 18 the furnace of the Riley boiler. 19 simply that he didn't do the type of work that 19 Q. Okay. 20 was described beginning at line 5? 20 A. In the furnace there's no brick. 21 A. Yes. 21 Q. Okay. Now, in the boiler itself there 22 Q. Okay. And he does say that he talks 22 is brick, correct? 23 about being around other people that were doing 23 A. No. There's no brick in the boiler. 24 that type of work at IP, correct? 24 In the furnace on the boiler he said, 25 A. He talked about being around other 25 "Rebricked part of the furnace on number three HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 223 Page 224 1 while I was there." The furnace does not have 1 A. I don't know what he knew. I would be 2 any brick on the inside of furnace. 2 presumptive on my part to say that. 3 Q. Okay. Is there brick in the boiler? 3 Q. Okay. You don't know if Gary Lenz 4 A. Somewhere in the boiler there is but 4 understood exactly what the furnace part of a 5 not in the furnace. 5 boiler actually is in your correct terminology, 6 Q. What's in the furnace? 6 do you? 7 A. Tubes, boiler tubes. 7 MR. SAUL: Objection to form. 8 Q. Okay. Now, you've been in the boiler 8 A. Could you rephrase that? 9 business for 36 years? 9 Q. Sure. You don't know that when Mr. 10 A. Forty-three. 10 Lenz was referring to the furnace, a Riley 11 Q. Forty-three years, sorry. You 11 Stoker boiler, that he's referring to what is 12 certainly have an intimate familiarity with 12 actually technically the furnace. He might 13 each and every part of a boiler system, 13 have gotten the term wrong; is that fair? 14 correct? 14 A. That is possible. 15 MR. SAUL: Objection to form. 15 Q. Okay. What does it mean to rebrick a 16 A. Enough to know that I'm not an expert 16 boiler? 17 on every part of every boiler because there's 17 A. Older industrial type boilers had 18 so many variations. 18 brick components in them. Periodically, you 19 Q. But you know what all the correct 19 may get deterioration because of the fuel is 20 terms are? 20 acidy or something happened; they had a puff 21 A. Most of them. 21 and they broke part of it. And you physically 22 Q. Okay. You could certainly call 22 go in there and remove brick and you replace it 23 yourself more of an expert on the terminology 23 with new brick. 24 of boilers and their component parts than Mr. 24 Q. Okay. 25 Lenz? 25 A. Including with mortar and whatever it HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 57 (Pages 225 to 228) J. MICHAEL SMITH J. MICHAEL SMITH Page 225 Page 226 1 is. That's what rebricking a boiler, a furnace 1 That's pretty young to do that kind of work. 2 means to me. 2 Q. What were the conditions of the fuel 3 Q. Now, when you say "older industrial 3 that was utilized at the Interstate Power 4 boilers," what time frame are you talking 4 Plant? 5 about? 5 A. It was coal. 6 A. '30s, maybe early '40s. 6 Q. Was it acidy? 7 Q. Okay. Is there any firebrick in unit 7 A. I don't know. I don't know for sure. 8 number three? 8 Q. Okay. One of the factors that you 9 A. I'm sure there is, yes. 9 indicated would come into play in determining 10 Q. Where is it? 10 whether a boiler had to be rebricked was the 11 A. I don't know. 11 acidity of the fuel, correct? 12 Q. Okay. 12 A. Acidity of the fuel of the combustion 13 A. I don't. The drawing, we have a 13 process if it got out of hand. 14 general arrangement drawing, and it doesn't 14 Q. You don't know the degree to which the 15 really say. It's very difficult to read. 15 fuel utilized in boiler number three at 16 Q. That firebrick that was in unit number 16 Interstate Power was acidic, do you? 17 three could deteriorate? It's possible? 17 A. I looked at it. I don't know. 18 A. Anything is possible, right. 18 Q. Okay. So you can't say that boiler 19 Q. So it's possible that unit number 19 number three did not have to be rebricked in 20 three needed to be rebricked, correct? 20 the time that Mr. Lenz was at Interstate Power, 21 A. The furnace did not have to be 21 can you? 22 rebricked because there was no brick there. I 22 A. The drawings we have do not show any 23 don't know where the brick was, but anything is 23 brick inside boiler number three inside. 24 possible. Is it likely? No. This boiler was 24 Q. I thought you said you couldn't tell 25 only, what, 12, 13 years old when he got there. 25 where the brick was? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 227 Page 228 1 A. I can't because I can't see any on the 1 A. Those three statements are true. 2 inside of the whole boiler. So the firebrick 2 Q. Okay. Do you know what page the 3 was bought; I'm not sure where it went. 3 firebrick requisition is for unit number three, 4 Q. Okay. They didn't just throw it away, 4 sir? 5 did they? 5 A. 354 is one of them, not much. 6 A. I don't think so. 6 Q. Okay. Is there more, do you know? 7 Q. They wouldn't requisition it if they 7 How about on page 356? 8 didn't need it? 8 A. I don't see any firebrick listed 9 A. I agree. 9 there. 10 Q. I'm hearing you say there was 10 Q. Okay. What is the function of shiplap 11 firebrick on that boiler somewhere? 11 tile? 12 A. Somewhere there was firebrick. 12 A. That can be used in the first layer 13 Q. You don't put firebrick in a place 13 off the tubes. We talked about the buttering 14 where it's cold; you put firebrick where it's 14 earlier. 15 hot, right? 15 Q. Yes, sir. Does that tile ever need to 16 A. Normally. 16 be replaced? 17 Q. Okay. So I'm a bit confused because 17 A. Only if you would have some kind of 18 I'm hearing you say two different things. 18 major accident or something. You just have to 19 You're saying, as I understand your testimony, 19 take the whole -- you have to take the casing 20 and I'm not an engineer, number one, there was 20 off basically have a major --it can be a major 21 no firebrick inside the boiler. But, number 21 shutdown. 22 two, there was firebrick that was ordered, and 22 Q. You don't know whether there was a 23 there was firebrick there somewhere. Am I 23 major shutdown of boiler unit number three at 24 understanding you correctly? 24 Interstate Power while Mr. Lenz there was? 25 MR. SAUL: Objection to form. 25 A. I believe at one point he said they HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 58 (Pages 229 to 232) J. MICHAEL SMITH J. MICHAEL SMITH Page 229 Page 230 1 ran every day he was there; except unit three 1 that's underneath it? 2 was shut down. There was an electrical 2 A. I would have to see the detail of the 3 problem. I think he said a rectifier blew out, 3 installation. 4 and it was shut down for like six months or 4 Q. Which you're referring to the 5 something. 5 insulation drawings that would have been 6 Q. Okay. 6 prepared by Riley Stoker draftsmen in 7 A. He made no reference of it, and we 7 connection with this unit number three, 8 have no record of it. 8 correct? 9 Q. So just to kind of sum this up, we 9 A. Yes. 10 know that there was firebricks supplied by 10 Q. Okay. We don't have those? You don't 11 Riley Stoker for unit number three, correct? 11 have those? We don't have those? Nobody has 12 A. Yes. 12 those? 13 Q. And we know that firebrick can degrade 13 A. I don't have them, no. 14 and need to be replaced, correct? 14 Q. It is not an unusual installation of 15 A. It can degrade. 15 firebrick to have insulating cement underneath 16 Q. Okay. And we know that the 16 it or between the bricks, correct? 17 replacement of degraded firebricking is a 17 A. Some bonding mortar-type material when 18 process known as rebricking, correct? 18 you put it in. 19 A. I'll give you that. 19 Q. Okay. Which oftentimes would be 20 Q. Okay. Which was what Mr. Lenz 20 high-temperature insulating cement, correct? 21 testified to participating in on that unit 21 A. Could be. 22 number three, correct? 22 Q. And you understand today that a lot of 23 A. Yes. 23 the high-temperature insulating cement that was 24 Q. As firebrick is installed, sir, is 24 used in the 1940s, 1950s and 1960s contained 25 there any insulating cement or anything else 25 asbestos, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 231 Page 232 1 MR. SAUL: Objection to form. 1 Q. But you know based on your experience 2 A. I've been told that some of it does 2 that that's what would have happened, correct? 3 contain asbestos. I don't know how much or 3 MR. SAUL: Objection to form. 4 what percentage. 4 A. I've never done it. 5 Q. Okay. And would there be block 5 Q. You've seen boilers being rebricked 6 insulation beneath the firebrick? 6 certainly, correct? 7 A. No. 7 A. I've seen them being rebricked. 8 Q. No? 8 Q. Okay. Is that dusty or a clean 9 A. No. 9 process? 10 Q. What would be beneath the firebrick? 10 A. I didn't consider that dusty. 11 A. It depends where it is. 11 Q. What tools did they use to rebrick the 12 Q. What are the options? What could it 12 boiler or to remove the brick from the boiler? 13 be? 13 A. I never watched them remove it. 14 A. Inside -- on this unit, I don't know. 14 Q. Okay. You weren't actually inside the 15 Q. Okay. 15 boiler when this was being done, correct? 16 A. I just don't know. 16 A. No. No. 17 Q. You would agree that if the firebrick 17 Q. Okay. Try to avoid going inside 18 in unit number three was installed utilizing 18 boilers? 19 high-temperature insulating cement as a base or 19 A. No. No. Just timing. You're running 20 mortar or whatever you want to describe it as, 20 jobs. There would be certain times we go and 21 and then Mr. Lenz worked in removing that 21 certain times we wouldn't. 22 firebrick, that would have caused him to be 22 Q. I'm sorry to interrupt. When you saw 23 exposed to dust from the insulating cement? 23 boilers being rebricked, what were the men 24 MR. SAUL: Objection to form. 24 inside doing with the waste material? Were 25 A. He never testified to that. 25 they just throwing it out the door? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 59 (Pages 233 to 236) J. MICHAEL SMITH J. MICHAEL SMITH Page 233 Page 234 1 A. It normally was taken -- whatever 1 Q. He said that he knew one of them was 2 section they were working on, and, like I said, 2 Riley Stoker, and he didn't know what the other 3 these mainly were the old industrial boilers 3 two were, correct? 4 where maybe putting a stoker in or something. 4 A. Yes. 5 There is a wall there. They take the wall out. 5 Q. You know that all three of them were 6 They take the stoker apart, take the wall out 6 Riley Stoker boilers, correct? 7 and then go back. And that material would be 7 A. Yes. 8 taken out of the boiler and put into whatever 8 Q. I want to talk a little bit big 9 the disposal area was. 9 picture about what Riley Stoker understood 10 Q. Okay. 10 about the way its boilers would be used after 11 A. Usually it was done by laborers, 11 they were sold. You would agree with me that 12 definitely not operators and mechanics. This 12 -- and the time frame I'm going to talk about 13 would be laborers, and then we call them 13 is from, you know, from 1931 to 1980. Let's 14 brickies would put it back together. It wasn't 14 cut it off there. 15 a job really for an amateur. I wouldn't 15 You'd agree with me that Riley Stoker 16 attempt to do it, I'll tell you, and I'm pretty 16 understood that people would have to repair 17 handy. 17 their boilers on occasion? 18 Q. Okay. 18 A. Riley Stoker boilers might have to be 19 MR. STUEMKE: I'll object to the 19 repaired depending on situation and conditions. 20 nonresponsive portions. 20 Q. Sure. Riley Stoker understood that 21 Q. You'd agree that Mr. Lenz testified 21 when they sold it? 22 that there were three boilers at that plant, 22 A. Yes. 23 correct, at the Interstate Power Plant? 23 Q. Okay. Riley Stoker understood that 24 A. He testified there were three boilers 24 people would maintain their boilers, correct? 25 when he was there. 25 A. Boilers had to be maintained. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 235 Page 236 1 Q. Right. Riley Stoker understood that 1 A. It was possible if they had a problem 2 this repair and maintenance could be done by 2 with the boiler or an accident they might have 3 people other than Riley Stoker employees, 3 to do that. 4 correct? 4 Q. So the answer is yes, that was 5 A. Yes. 5 foreseeable? 6 Q. That would be done by employees of the 6 A. It was possible. 7 power plant or industrial facility where the 7 Q. Riley Stoker knew that was possible at 8 boiler was located oftentimes, correct? 8 the time it sold the boilers, correct? 9 A. Are you talking about maintenance or 9 A. Knew that it might have an accident 10 repairs? 10 and might have to be repaired, it's possible. 11 Q. Maintenance. 11 Q. In your review of Mr. Lenz's 12 A. Maintenance, opening and closing and 12 testimony, is there anything with respect to 13 looking at things, the power, the premises 13 his testimony regarding Riley Stoker boilers 14 owner would probably do it with his people. 14 that is fundamentally inconsistent with the way 15 Repairs, normally my experience has been that 15 that you understand Riley Stoker boilers to 16 it was beyond the scope of the ability of his 16 have been used, repaired or maintained in the 17 people, and they'd hire it out to a contractor. 17 field? 18 And there's a wide variety of contractors they 18 A. He did not talk much about the Riley 19 could pick from. 19 Stoker boilers. 20 Q. Was it foreseeable to Riley Stoker 20 Q. He wasn't asked many questions about 21 that people would need to remove and disturb 21 them, was he? 22 and ultimately replace thermal system 22 A. No. 23 insulation on the exterior of Riley Stoker 23 Q. Okay. You understand Riley Stoker had 24 boilers during the life of those boilers? 24 a lawyer present at that deposition, correct? 25 MR. SAUL: Objection to form. 25 MR. SAUL: Objection. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 60 (Pages 237 to 240) J. MICHAEL SMITH J. MICHAEL SMITH Page 237 Page 238 1 A. I'm aware of that. 1 Q. Okay. 2 Q. Okay. So getting back to my other 2 MR. STUEMKE: I'm going to object as 3 question, sir, is there anything about Mr. 3 nonresponsive. 4 Lenz's testimony regarding Riley Stoker boilers 4 Q. I just want you to focus on the 5 that is fundamentally inconsistent with the way 5 testimony that is there, the answers to the 6 you understand those boilers would have been 6 questions that were asked. With respect to Mr. 7 used, maintained and repaired in the field? 7 Lenz's testimony about Riley Stoker boilers, 8 MR. SAUL: Objection to form. 8 there is nothing in that testimony that is 9 A. There's no testimony about that, so I 9 fundamentally inconsistent with the way you 10 don't know whether I can be inconsistent with 10 know Riley Stoker boilers were used, repaired 11 nothing because that's basically what we have 11 and maintained in the field, correct? 12 as far as his testimony. The fact is he said 12 MR. SAUL: Objection to the form. 13 he didn't do any work on them, any of the 13 A. I've already stated that his one line 14 boilers. Then all of a sudden the last day he 14 of testimony about the Riley boiler was that he 15 said he did do some work, that is confusing to 15 went in and rebricked the furnace. And we've 16 me. He said he basically did not -- he didn't 16 already been through all that; our furnace 17 talk much about the boilers at all even in his 17 didn't have brick in it. So, therefore, I do 18 own Volume II, III. Volumes II and III was 18 disagree with that statement based on the face 19 primarily where there was discussion about work 19 value of what he said. 20 other than the Navy. The depo one was 20 Q. Okay. That boiler had brick in it 21 primarily his personal background and the Navy, 21 somewhere; we know that, right? 22 and two and three were really his work scope 22 A. It had some amount of brick in it. 23 other than the Navy. 23 Q. Okay. You understood that Mr. Lenz 24 Q. Okay. 24 isn't here to clarify his testimony, correct? 25 A. There was very little there. 25 A. I just found out. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 239 Page 240 1 Q. Okay. If Riley Stoker wanted to know 1 Q. Okay. And you understand that one of 2 more details about that, they should have asked 2 the issues in this case is when Riley Stoker 3 him when they had the chance? 3 knew about the health hazard of asbestos 4 A. That's over and above me. 4 exposure, correct? 5 MR. SAUL: Objection to form. 5 MR. SAUL: Objection to form. 6 A. That's above me. 6 A. That question has been asked. 7 Q. Finally, sir, I want to turn your 7 Q. The question has been asked a lot? 8 attention to the topic of asbestos hazards, 8 A. Yeah. 9 when Riley Stoker knew about asbestos hazards 9 Q. Okay. Sir, have you ever yet 10 and what, if anything, Riley Stoker did about 10 investigated to try to find out when Riley 11 that knowledge. Now, first, as you sit here 11 Stoker first learned that the inhalation of 12 today, you understand that asbestosis, lung 12 asbestos fibers could cause lung impairment? 13 cancer, and mesothelioma are all deadly 13 A. Asbestos fibers? 14 diseases, correct? 14 Q. Yes. 15 MR. SAUL: Objection to form. 15 A. I do not know when anyone at Riley 16 A. I've been told that. 16 found that out. 17 Q. Okay. You understand that all of 17 Q. Okay. I understand as you sit here 18 those diseases can be caused by exposure to 18 today you don't know. My question is: Have 19 asbestos, correct? 19 you ever done the research to try to find out? 20 A. I've been told that. 20 A. The fact is the asbestos was not a 21 Q. You understand -- strike that. 21 product that we, you know, mined, made, 22 We've talked about this is I believe 22 designed or anything. The issue that we had 23 your 19th deposition in asbestos litigation 23 was with thermal insulation. When we were 24 cases for Riley Stoker, correct? 24 notified in 1972 by OSHA that it was a 25 A. Nineteenth case. 25 potentially hazardous situation by putting that HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 61 (Pages 241 to 244) J. MICHAEL SMITH J. MICHAEL SMITH Page 241 Page 242 1 on our boilers, and our response was we stopped 1 A. I don't -- asbestos is a separate 2 putting it on the boilers. 2 product. 3 Q. Do you remember the question, sir? 3 Q. Okay. 4 A. I thought I did. 4 A. It's a pure product. Asbestos, by 5 MR. STUEMKE: Let's have it read back. 5 asbestos, we never used asbestos as a product. 6 (Question read) 6 We did sometimes use thermal insulation that we 7 A. I don't know how to answer that. We 7 now know some of it did contain asbestos. 8 found documents that said what I just told you. 8 Q. Okay. Arsenic is a poison, isn't it? 9 Q. In January of this year you gave a 9 A. I've been told it is. 10 deposition in the Von Saint James case pending 10 Q. Okay. If you put arsenic in a muffin, 11 in Minnesota. You recall that? 11 it's still going to kill you, isn't it? 12 A. Yes. 12 A. I'm not going to try it. 13 Q. You were asked the question on page 69 13 MR. SAUL: Object to relevance. 14 of that deposition, "Have you researched the 14 A. I'm not going to try it. 15 issue of when Riley Stoker first found out that 15 Q. Well, you're saying that we just had 16 the inhalation of asbestos fibers could cause 16 products that had asbestos. We didn't put the 17 lung impairment?" And what was your answer at 17 actual asbestos fibers out there. 18 that time, sir? 18 A. No, that's not what I'm saying. 19 A. I never investigated that statement, 19 MR. SAUL: Objection. Misstates prior 20 asbestos fibers. I'm separating asbestos from 20 testimony. 21 thermal insulation. 21 A. I'm not saying that. 22 Q. Okay. Sir, the problem is that you 22 Q. Okay. Have you ever researched the 23 can't separate thermal insulation from asbestos 23 issue of when Riley Stoker first found out that 24 prior to 1972, can you? 24 the inhalation of asbestos could cause lung 25 MR. SAUL: Objection to form. 25 impairment? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 243 Page 244 1 A. No. 1 they knew about the hazards of asbestos, have 2 Q. Riley Stoker has never asked you to 2 you? 3 look into their historical records to try to 3 MR. SAUL: Objection to form. 4 give you any factual information about when 4 A. I've never asked anybody about that 5 Riley Stoker knew about the hazards of 5 subject, no. 6 asbestos, correct? 6 Q. When did Riley Stoker establish a 7 MR. SAUL: Objection to form. 7 position known as a safety supervisor? 8 A. Who at Riley? 8 A. Where? 9 Q. Anybody? 9 Q. Anywhere? 10 A. No. 10 A. I don't know when they set one up. It 11 Q. Their lawyers haven't even asked you 11 was in the construction division. 12 to do that, have they? 12 Q. They had a safety supervisor in the 13 A. No. 13 construction division when you joined the 14 MR. SAUL: Objection to form. 14 company, correct? 15 Q. And you've never done it, right? 15 A. Yes. 16 A. Never done what? I'm losing it now. 16 Q. Do you know who it was? 17 Q. You've never looked in the historical 17 A. I don't remember right now. 18 records of Riley Stoker to try to find any 18 Q. Okay. If you wanted to, you could 19 factual information about when Riley Stoker 19 have figured out who safety supervisors in the 20 knew about the hazards of asbestos? 20 construction division at Riley Stoker were in 21 MR. SAUL: Objection, Counsel. Asked 21 the 1950s and 1960s, couldn't you? 22 and answered. 22 MR. SAUL: Objection to form. 23 A. Never looked. 23 A. I don't know that. 24 Q. Not only have you never looked; you've 24 Q. Okay. In any event, you've never 25 never asked anybody about Riley Stoker what 25 tracked down any Riley Stoker safety HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 62 (Pages 245 to 248) J. MICHAEL SMITH J. MICHAEL SMITH Page 245 Page 246 1 supervisors to ask them if they knew anything 1 about whether Riley Stoker knew there was 2 about the hazards of asbestos prior to 1972, 2 asbestos in the insulation it was using. I'm 3 correct? 3 asking you now about the hazards of asbestos? 4 A. I've never tracked down Riley safety 4 A. Asbestos itself, I have no idea. 5 supervisors. 5 Q. How about asbestos products? 6 Q. Okay. And we talked already a little 6 A. The hazard associated with them? 7 bit about Mr. Ritter, and he's given deposition 7 Q. Yes. 8 on behalf of Riley Stoker in cases like this 8 A. That is after OSHA. 9 before, correct? 9 Q. Okay. And you have no basis at all to 10 A. We talked about him today. 10 tell this jury what Riley Stoker knew about the 11 Q. Okay. And you never read his 11 hazards of asbestos or asbestos products in the 12 testimony to see what he had to say about 12 1940s, 1950s or 1960s, do you? 13 asbestos hazards, correct? 13 MR. SAUL: Object to the form. 14 MR. SAUL: Objection. Asked and 14 A. About the hazards of the -- no. 15 answered. 15 Q. Let's look at some of the documents 16 A. We've already been through that. 16 that are available to Riley Stoker so that the 17 Q. Sir, you'd agree that you have no 17 jury can gain an understanding of what was 18 basis whatsoever to tell this jury what Riley 18 available to Riley Stoker had they bothered to 19 Stoker knew about the hazards of asbestos in 19 look for it about the hazards of asbestos? 20 the 1940s or 1950s or the 1960s, wouldn't you? 20 MR. SAUL: Object to the extent that's 21 A. No. 21 not a question. 22 MR. SAUL: Objection to form. 22 Q. Are you familiar with an organization 23 A. No, I don't agree with you. We've 23 called the ASME? I think I've heard you 24 already been through that too. 24 mention that a few times today. 25 Q. Respectfully, sir, we were talking 25 A. Yes. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 247 Page 248 1 Q. What is that? 1 questions. Now, do you see that there are 12 2 A. American Society of Mechanical 3 Engineers. 2 names that are highlighted? 3 A. There are 12 names highlighted. 4 Q. Okay. 5 MR. STUEMKE: Mark this as the next 6 exhibit, please. 4 Q. Okay. And those are all people to 5 your understanding that were members of the 6 ASME in 1928, correct? 7 (Exhibit No. 14, Excerpt ASME 8 Membership List, 1928 so marked) 7 A. That's what this says. 8 Q. Okay. And if you look at Mr. Fred H. 9 Q. Sir, I'm handing you Exhibit 14. This 9 Daniels, you see he's identified as the 10 is an excerpt of the ASME membership list from 10 president of Riley Stoker Corporation, correct? 11 1928. Do you see that? 11 A. Yes. 12 A. Yes. 12 Q. If you look on the next page at Mr. 13 Q. I'd like you to turn to the second 14 page of the exhibit. This is the membership 13 William Pestell, P-E-S-T-E-L-L, you see he's 14 identified as the vice president of Riley 15 list for a number of different places including 15 Stoker Corporation, correct? 16 Worcester, Mass., correct? 16 A. Yes. 17 A. That's what it says. 17 Q. You don't have any reason to dispute 18 Q. Okay. And I have highlighted a number 18 that all of the name that are highlighted on 19 of different individuals who are associated -- 19 this list were members of the American Society 20 were associated with Riley Stoker Corporation. 20 of Mechanical Engineers in 1928, do you? 21 Do you see that? 22 A. Yes. We've already been through this 23 with your firm. 24 Q. Okay, sir. You haven't been through 21 A. No. 22 (Exhibit No. 15, Excerpt ASME, 1940 so 23 marked) 24 Q. Do you see that Exhibit 15 is an 25 that with this jury so we're going to ask the 25 excerpt of the ASME membership list from 1940, HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 63 (Pages 249 to 252) J. MICHAEL SMITH J. MICHAEL SMITH Page 249 Page 250 1 correct? 1 they have these copies of the Mechanical 2 A. Yes. 2 Engineering Journal, correct? 3 Q. Do you see the second page of 3 A. That's correct. 4 Exhibit 15 includes the membership list for 4 Q. Okay. 5 Worcester, Mass., correct? 5 MR. STUEMKE: Let's mark this as next 6 A. Yes. 6 in order, please. 7 Q. Okay. And you see that I've 7 (Exhibit No. 16, Excerpt Mechanical 8 highlighted nine different names of individuals 8 Engineering, February 1933 so marked) 9 that were members of ASME that were associated 9 Q. Sir, Exhibit 16 an excerpt from the 10 with Riley Stoker Corporation, correct? 10 Mechanical Engineering Journal in 11 A. Yes. 11 February 1933, correct? 12 Q. Okay. And that includes the president 12 A. Yes. 13 of Riley Stoker, Fred H. Daniels, correct? 13 Q. You're a member of the American 14 A. Yes. 14 Society of Mechanical Engineers, correct? 15 Q. You've seen before, sir, that the ASME 15 A. Yes. 16 published certain articles in which hazards of 16 Q. Are you okay? 17 asbestos dust were discussed, correct? 17 A. Yes. Getting a little dry. 18 MR. SAUL: Objection. 18 Q. You've been a member of ASME since the 19 A. In industrial environments. 19 early 1980s, correct? 20 Q. And let's be clear, you've seen those 20 A. Yes. 21 only in the context of appearing for 21 Q. And you know that ASME publishes a 22 depositions like this today, correct? 22 journal known as Mechanical Engineering, 23 A. Yes. 23 correct? 24 Q. You've never searched through the 24 A. Yes, I am. 25 records of Riley Stoker Corporation to see if 25 Q. You receive that journal, correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 251 Page 252 1 A. Yes, I do. 2 Q. Okay. And to your understanding 1 Q. He reports, "Furthermore, dust of 2 dangerous character may be so extremely fine in 3 that's a journal that they've always published 4 to their members, correct? 3 grain as never to settle at all but remain in 4 suspension indefinitely." Do you see that? 5 A. They published it for quite a while. 6 Q. Okay. And you see that in 5 A. Yes. 6 Q. Do you see on the next page Dr. 7 February 1933 they published an article 8 entitled, "Dust in Industry," correct? 7 Willson reports, "Workmen having to do with bag 8 filling, loading and unloading of pulverized 9 A. Yes. 10 Q. Okay. If you turn to that article, 9 sand, asbestos, talc, clay, feldspar and other 10 silicates, as well as those handling lead in 11 you see it's written by a doctor, Frederick 12 Willson, M.D., correct? 11 bulk, should receive special care as should 12 also workmen making up batches in glass 13 A. Yes. 14 Q. And it is titled, "Dust in Industry, 13 plants." Is that correct? 14 A. That's what it says. 15 Shop Methods and Equipment Effective in 16 Controlling Dust Hazards," correct? 15 Q. He also reports, "Full cooperation" -16 strike that. 17 A. Yes. 17 Later in that page Dr. Willson talks 18 Q. Okay. And I've highlighted certain 18 about the reluctance of workmen to employ 19 portions of the article. You see that on the 20 first page of the article Dr. Willson reports 19 safeguards such as wearing respirators, 20 correct? It's the section heading at the 21 that it should be borne in mind that the 21 bottom of the first column, sir. 22 particles which do the most harm are invisible 22 A. I read that. 23 and they remain long and suspension in the air. 23 Q. He indicates that, "Full cooperation 24 Do you see that? 24 will probably not be attained without 25 A. Yes. 25 acquainting the worker with the danger to which HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 64 (Pages 253 to 256) J. MICHAEL SMITH J. MICHAEL SMITH Page 253 Page 254 1 he will be exposed if totally or partially 1 2 unprotected," correct? 2 3 A. That's what it says. 3 4 Q. Dr. Willson reports that, "The most 4 5 erroneous and expensive policy any employer can 5 6 adopt is to minimize to his workmen the dangers 6 7 of free silica dust, no true observance of dust 7 8 protection can be expected from the workman 8 9 unless he is fully acquainted with the dangers 9 10 of his occupation." Did I read that correctly? 10 11 A. Yes. 11 12 Q. From having looked at these articles 12 13 before, sir, you know that asbestos is a free 13 14 silicate dust, correct? 14 15 MR. SAUL: Objection to form. 15 16 A. Is a what? 16 17 Q. Asbestos is a free silica? 17 18 A. I picked up on that before. Sorry. I 18 19 just want to point out that this article was 19 20 written about the industrial factory setting. 20 21 This was not written about boilers or anything 21 22 about them. 22 23 MR. STUEMKE: Could we mark that as 23 24 the next exhibit, please. 24 25 (Exhibit No. 17, Excerpt Mechanical 25 HG LITIGATION SERVICES HGLITIGATION.COM Engineering, April 1933 so marked) Q. Do you see Exhibit 17, sir, is another copy or another edition of the Mechanical Engineering Journal, this one from April 1933? A. Yes. Q. Do you see again there's an article entitled "Dust in Industry." This one with a different subtitle? A. Yes. Q. And now I want to ask you, sir, is on: Page 229 of the journal in a section entitled "Nature of dust" it discusses various classes of dust. The first class it mentions is "Those composed completely of combined silica, that is, silicates such a pure asbestos." You understand that asbestos is a silicate, correct? A. I did not know that. Q. Okay. Assuming that this author is correct in the statement, you understand that now? A. I'm aware of it. MR. SAUL: Objection to the extent the question is outside the scope of the deponent's area of expertise. HG LITIGATION SERVICES HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 255 Page 256 1 Q. If we turn our attention back, sir, to 1 Engineering, February 1935 so marked) 2 Exhibit 16, the last paragraph of Exhibit 16 2 THE VIDEOGRAPHER: This is the 3 Dr. Willson states that, "When management and 3 beginning of tape number five. We're back on 4 workmen pool their interests in behalf of 4 the record. The time is 4:53. 5 safety, then certainly safety will finally be 5 BY MR. STUEMKE: 6 won. Research lies with the scientist, but the 6 Q. Sir, I'm handing you what we've marked 7 intelligent application of the knowledge that's 7 as Exhibit 18. Do you see this is the 8 obtained as it applies to occupational diseases 8 February 1935 Mechanical Engineering Journal? 9 is a moral responsibility of industry." Did I 9 A. Yes. 10 read that correctly? 10 Q. And do you see there is an article 11 A. That's what it says. 11 entitled, "Occupational Diseases, Problems and 12 Q. Do you think that's a correct 12 Prevention" and an article entitled "The 13 statement, that the intelligent application of 13 Administration of Occupational Disease Control" 14 knowledge is a moral responsibility of 14 and article entitled "Toxic Dusts, Origin and 15 industry? 15 Sources in Industry"? 16 A. I can't comment on that. That's a 16 A. Yes. 17 moral responsibility, that's very subjective, 17 Q. I want to focus your attention on the 18 very subjective. I'm not qualified to comment 18 toxic dusts article. Specifically, if you turn 19 on that. 19 to -- it's the second to last page, but you 20 MR. STUEMKE: Let's take a break. 20 can't see it. There you go. Do you see 21 THE VIDEOGRAPHER: This is the end of 21 there's a paragraph entitled "Asbestos in 22 tape number four. The time is 4:46. We're off 22 Asbestos Goods Manufacturing." And do you see 23 the record. 23 here that it mentions at the end, "crushing and 24 (Recess 4:47 p.m. to 4:53 p.m.) 24 grinding asbestos products generates dust." Do 25 (Exhibit No. 18, Excerpt Mechanical 25 you see that? HG LITIGATION SERVICES HGLITIGATION.COM HG LITIGATION SERVICES HGLITIGATION.COM 65 (Pages 257 to 260) J. MICHAEL SMITH J. MICHAEL SMITH Page 257 Page 258 1 A. Yes. 1 A. I don't know if you're put on notice. 2 Q. You would agree that a reasonable 2 You'd have to know you had asbestos. I can't 3 company that reads this would be put on notice 3 -- I can't answer that. It doesn't make sense 4 that you can generate toxic dust from 4 to me. 5 operations on asbestos products? 5 Q. We talked earlier a couple of times 6 DEFENSE COUNSEL: Objection to form. 6 about professional engineers codes of ethics 7 A. I would never pick that up. 7 that they requires the engineer to product the 8 Q. Okay. Well, it's an article with the 8 public health? 9 title "Toxic Dusts," correct? 9 A. We have rules and regulations and 10 A. Uh-huh. Yes. 10 standards we're supposed to meet in doing our 11 Q. It says, "crushing and grinding 11 work. 12 asbestos products generates dust"? 12 Q. And protect the public health is a 13 A. Are they talking about the mining and 13 foremost objective, correct? 14 quarry operations or something else? 14 MR. SAUL: Objection to the extent 15 Q. Well, they're talking specifically 15 it's asked and answered. 16 about asbestos products, aren't they? 16 A. I've already been through that this 17 A. Also quarrying. What was the question 17 morning. 18 again, please? 18 Q. And the answer is yes, correct? 19 Q. Wouldn't you agree, sir, a reasonable 19 A. There is responsibility to do our job 20 company reading that crushing and grinding 20 according to what we agree to do. 21 asbestos products generates dust in an article 21 Q. And if you look, sir, at the last page 22 entitled "Toxic Dusts," would be put on notice 22 of this article from 1935, it says, "All in 23 that you can generate toxic dust from working 23 all, it is best for any engineer to proceed 24 with asbestos products? 24 upon the basis that any dust of any type in any 25 MR. SAUL: Objection to form. 25 concentration creates an industrial exposure HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 259 Page 260 1 and to suppress the dust at its origin"? 1 was part of the review. 2 A. That's what it says. 2 Q. Okay. And are you aware that in those 3 Q. Now, following the publication of 3 Texas regulations in 1958 they established a 4 these articles in the ASME Journal of 4 maximum concentration of asbestos fibers that 5 Mechanical Engineering, you're not aware of 5 was permitted in air in the workplace? 6 Riley Stoker taking any action with respect to 6 A. I'm aware that's in there. I don't 7 any of its products, correct? 7 know what it is. 8 MR. SAUL: Objection to form. 8 Q. Okay. Do you know at that time that 9 A. I'm not aware of anything in that time 9 Texas recognized asbestosis as a compensable 10 frame. 10 disease under the Workers' Compensation Act? 11 Q. I saw in your binder that you had at 11 A. No. 12 least one document that related to -- actually, 12 Q. Now, you've testified earlier today 13 can I see your binder real quick? 13 that all Riley Stoker boilers up to, I think it 14 A. (Witness complies) 14 was, 1970 were manufactured in the state of 15 Q. Number six in your binder is the 15 Pennsylvania, correct? 16 occupational health regulations from the Texas 16 A. You asked me that question, through 17 State Department of Health Division of 17 the '60s. I don't know when Sapulpa actually 18 Occupational Health. Do you see that? 18 opened up, so that would be a stretch to say to 19 A. Yes. 19 1970. I don't know. 20 Q. Dated 1958, correct? 20 Q. Okay. Through at some point in the 21 A. Yes. 21 1960s? 22 Q. Why is that in that binder? 22 A. We had two sites going in the 1960s, 23 A. We had quite a few cases in Texas that 23 and one of them -- one was Cornwells and one 24 we were looking at the level exposure and the 24 was Eerie. 25 different rules were put into effect, and that 25 Q. Okay. You would agree with me, sir, HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 66 (Pages 261 to 264) J. MICHAEL SMITH J. MICHAEL SMITH Page 261 Page 262 1 that Riley Stoker would have been aware of the 1 MR. SAUL: Object to form. 2 laws and regulations in the state of 2 A. If it applied to them, I expect it 3 Pennsylvania that applied to it, correct? 3 would be. 4 MR. SAUL: Objection to form. 4 Q. And as you sit here today, you cannot 5 A. I don't know. 5 testify regarding any actions that Riley Stoker 6 Q. Is it a reasonable assumption for this 6 ever took with respect to preventing asbestosis 7 jury to make that Riley Stoker was aware of 7 in its workers, learning about asbestos hazards 8 workplace safety laws that governed its 8 or protecting the users of its product from 9 workplaces in the state of Pennsylvania? 9 asbestos hazards, can you? 10 A. I don't know. 10 MR. SAUL: Objection to the form. It 11 Q. You would hope Riley Stoker would be 11 misstates prior testimony. 12 aware of those things, wouldn't you? 12 THE WITNESS: We need to go off the 13 A. I would think they would be, but I 13 record. 14 don't know. 14 MR. SAUL: Do you need a break? 15 Q. Okay. Are you aware that in 1939 15 THE WITNESS: We need to talk. 16 Pennsylvania passed an Occupational Disease 16 MR. SAUL: You're not feeling it? 17 Act? 17 THE WITNESS: I'm just too tired. 18 A. No. 18 MR. SAUL: What do you think? 19 Q. Are you aware that in 1939 19 THE WITNESS: I've been up since five 20 Pennsylvania's Occupational Disease Act 20 o'clock. I'm not understanding you. I'm not 21 identified asbestosis as a compensable 21 trying to be insulting. 22 occupational disease? 22 MR. SAUL: We can go off the record 23 A. No. 23 for a second. 24 Q. But you would expect Riley Stoker to 24 THE WITNESS: I just don't understand. 25 have been aware of that at that time, correct? 25 I'm not hearing the questions properly. I've HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 263 Page 264 1 done my best. I'm sorry. 1 2 MR. STUEMKE: I understand you've been 2 3 put in a little bit of a difficult situation. 3 4 I've got a case set for trial on Monday. I've 4 5 got to get the deposition done. 5 6 MR. SAUL: Right. What do you think 6 7 in terms of, you know Mike, can we get you some 7 8 coffee, a quick walk around the office? Do you 8 9 think you can do maybe another 15 minutes? 9 10 THE WITNESS: What have you got left? 10 11 MR. STUEMKE: I've got probably 30 to 11 12 40 minutes. 12 13 MR. SAUL: Do you want to try and just 13 14 work through it? You've been doing things 14 15 pretty quickly. We've been moving right along. 15 16 I know Mike's doing his best. If we can try to 16 17 just cover new ground, I think that's going to 17 18 work. 18 19 THE WITNESS: Okay. I don't want to 19 20 try to do something improper. 20 21 MR. SAUL: Do you need to stand up, 21 22 stretch a little. 22 23 THE WITNESS: I'm okay. It's just be 23 24 aware that I'm not hearing real good at this 24 25 moment. 25 HG LITIGATION SERVICES HGLITIGATION.COM MR. STUEMKE: Okay. Can I have the last question read back, please? (Question read) A. No. MR. SAUL: Same objection. Q. Prior to 1972 Riley Stoker never did any investigation of the asbestos content of the component parts of its boilers, correct? A. Not to my knowledge. MR. SAUL: Objection to form. Q. Prior to 1972 Riley Stoker never did any research into the medical literature to learn about potential hazards of exposure to asbestos, correct? A. Not that I'm aware of. Q. Riley Stoker never had a medical department, correct? A. No. Q. Riley Stoker -- that is correct? A. That's what I meant. We never had a medical department. Q. Riley Stoker never had a medical director, correct? A. That's correct. Q. Riley Stoker never had an industrial HG LITIGATION SERVICES HGLITIGATION.COM 67 (Pages 265 to 268) J. MICHAEL SMITH J. MICHAEL SMITH Page 265 Page 266 1 hygienist on its staff, correct? 1 first learned about the hazards of asbestos in 2 A. That's correct. 2 1972 when OSHA regulated asbestos in the 3 Q. Prior to 1972 Riley Stoker never did 3 workplace, correct? 4 any testing for safe levels of exposure to 4 A. No. It is Riley Stoker's contention 5 asbestos in its plants or on its jobsites, 5 that we were unaware of the potential hazards 6 correct? 6 of thermal insulation associated with our 7 MR. SAUL: Objection to form. 7 boilers until 1972. 8 A. Not to my knowledge. 8 Q. Okay. Prior to 1972 was Riley Stoker 9 Q. Prior to 1972 Riley Stoker never did 9 aware of the hazards of exposure to asbestos 10 any -- strike that. I'm sorry. 10 regardless of the source? 11 Prior to 1972 Riley Stoker never 11 A. I have no idea. 12 recommended any work practices to be used in 12 MR. SAUL: Objection. Asked and 13 association with its boilers that would 13 answered. 14 minimize workers' exposure to asbestos, 14 Q. I'd like to look at what Riley Stoker 15 correct? 15 did after the passage of OSHA with respect to 16 MR. SAUL: Objection to form. 16 its products. Sir, I've handed you Exhibit 19. 17 A. That's correct. 17 This is a Riley Stoker document, correct? 18 Q. And prior to 1972 Riley Stoker never 18 A. Yes. 19 warned a single person about asbestos hazards, 19 Q. Okay. And this is a letter from D.A. 20 correct? 20 East dated March 13, 1972, correct? 21 MR. SAUL: Objection to form. 21 A. Yes. 22 A. Not to my knowledge. 22 Q. Do you know who the author is or was? 23 (Exhibit No. 19, Memo to M&R Staff, 23 A. Doug East. 24 3/13/72 so marked) 24 Q. Okay. Do you know if he's still 25 Q. It's Riley Stoker's contention that it 25 alive? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 267 Page 268 1 A. I do not. 1 A. Yes. 2 Q. What was his position in the company? 2 Q. Have you seen this document before, 3 A. I believe he was vice president of the 3 sir? 4 maintenance and repair division. 4 A. Yes. 5 Q. Okay. And this is a memo to all 5 6 maintenance and repair division staff, correct? 6 Q. What is this document? A. This is a document from the proposal 7 A. Yes. 8 Q. Regarding OSHA standards? 7 department to -- there was a distribution I 8 thought on this somewhere. And this is 9 A. Yes. 9 building up to this whole thing about Doug East 10 Q. And in this memo Mr. East indicates 10 and Kate Crooks when they found out about OSHA 11 that the law requires compliance with OSHA 11 and what the issues were. And that he was 12 standards by the contractor, not just the 12 getting requests for quotes in that still 13 premises owner, correct? 14 A. For the work the contractor is doing, 13 contained the requirement for cal sil. At that 14 point cal sil still had asbestos in it. 15 his employees, yes. 16 Q. All right. He states that all of 15 Q. And he indicates in the middle 16 paragraph of this document that "Many forms of 17 Riley Stoker's bids will be to OSHA standards 17 insulation containing no asbestos are available 18 whether the customer requires it or not? 18 for use with our equipment and the obvious 19 A. Yes. 20 Q. Correct? 19 reason for use of such material where ever and 20 when ever possible is apparent." Did I read 21 (Exhibit No. 20, Riley Stoker Memo, 21 that correctly? 22 3/24/72 so marked) 22 A. Yes. 23 Q. You've had a chance to look at 23 Q. What is the obvious reason for using 24 Exhibit 20. Exhibit 20 is a Riley Stoker 24 nonasbestos material in Riley Stoker's mind in 25 document, correct? 25 1972? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 68 (Pages 269 to 272) J. MICHAEL SMITH J. MICHAEL SMITH Page 269 Page 270 1 A. I don't know. 1 A. That's not what I read there. 2 Q. Okay. Do you know if that was obvious 2 Q. He says, We may continue to perform. 3 to avoid liability for Riley Stoker? 3 Don't know for sure yet. Is that right? 4 A. I don't know. 4 A. That's not what -- I don't read that. 5 MR. SAUL: Objection. Asked and 5 Q. How do you read that sentence then? 6 answered. 6 A. "I don't know what, if any, action we 7 Q. Okay. Moving on, it indicates, "The 7 will take on recurrent contracts." He's not 8 calcium silicate insulation does contain 8 responsible for the current contracts. He's 9 asbestos fiber. I believe this is factual 9 only responsible for quoting them new work. 10 regardless of manufacturer or trade name." Did 10 Q. Okay. Do you, sir, know what Riley 11 I read that correctly? 11 Stoker did regarding current contracts that it 12 A. Yes. 12 had to supply cal sil insulation? 13 Q. The bottom of the paragraph the author 13 A. I know what happened in '73 when I got 14 states, "I don't know what, if any, action we 14 there; that there was nothing being put out at 15 will take regarding current contracts including 15 all. They were buying -- you could get 16 cal sil material, but we probably will take 16 asbestos-free cal sil by the summer of '72. 17 exception to including cal sil on future bids 17 Q. You don't know what Riley Stoker did 18 where such material is specified." Did I read 18 in this time frame with respect -- regarding 19 that correctly? 19 calcium silicate insulation, correct? 20 A. Yes, you did. 20 A. No. 21 Q. So what he's saying there is that even 21 MR. SAUL: Objection to form. 22 though we know all calcium silicate insulation 22 (Exhibit No. 21, Memo to All Domestic 23 contains asbestos, for those contracts where 23 Sales Offices, 7/31/72 so marked) 24 that's already been spec'd, we are going to 24 Q. You've seen Exhibit 21 before, 25 continue to perform, correct? 25 correct? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 271 Page 272 1 A. Yes. 1 asbestos products besides thermal insulation, 2 Q. What is this document? 3 A. This is a memo to all domestic sales 2 correct? 3 A. Riley Stoker boilers, once again, 4 offices from Sam Mencow who was the author of 4 depending on the scope, the temperature, the 5 the prior exhibit, Exhibit 20, that in 5 pressure, might have had a number of what they 6 follow-up to the March 24 memo, he not only did 6 call nonfriable asbestos components such as 7 it internal. This was all domestic sales 8 offices in the United States. He also copied 7 millboard or gaskets or rope. 8 Q. Okay. And Riley Stoker continued to 9 the entire senior staff, it looks like to me 9 use those asbestos products without 10 that asbestos-free cal sil is available as of 10 interruption? 11 August 1. 11 A. We had no choice. 12 Q. Okay. 12 Q. Okay. 13 A. And we're going to be using it. 13 A. And they were -- because of their 14 Q. He indicates that "The insulation will 14 condition, they were not -- OSHA didn't ban 15 be available without asbestos, and its cost 16 will be exactly the same as the current price 17 lists with asbestos," correct? 18 A. Yes. 19 Q. In other words, the nonasbestos 15 them. It was a matter of be careful using 16 them, and they were trying to develop 17 alternative products. And that was not -- the 18 vendors were not successful until the early 19 '80s. 20 version isn't more expensive? 20 Q. Well, OSHA didn't ban the thermal 21 A. No. This is the way it shook out. 22 Q. Sir, you've talked and we've discussed 23 the actions that Riley Stoker took regarding 24 asbestos insulation following the passage of 21 insulation either, did it? 22 A. No, but it was the -- the 23 concentration they kept lowering it as -- once 24 they put the first issue out, they kept 25 OSHA, but Riley Stoker boilers included other 25 lowering it, and that was what everyone was HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 69 (Pages 273 to 276) J. MICHAEL SMITH J. MICHAEL SMITH Page 273 Page 274 1 concerned about. 1 A. It's a safety issue because like 2 Q. Okay. Now, Riley Stoker never 2 Flexitallic gaskets, that -- if a gasket fails 3 researched whether the asbestos gaskets in its 3 under those conditions, it can be catastrophic. 4 products could create an exposure above the 4 So safety was number one, and that was why we 5 OSHA limit, did it? 5 kept using it. It was a safety issue. 6 A. I don't know that. 6 Q. You just told this jury that safety 7 Q. Well, you understand you're testifying 7 was number one, and that's why you continued to 8 here today for Riley Stoker regarding what it 8 use asbestos gaskets, correct? 9 did in response to knowledge about asbestos 9 A. That's correct. 10 hazards? 10 Q. If safety was so important to Riley 11 A. Right. 11 Stoker, why did it not ever investigate whether 12 Q. You can't tell this jury that Riley 12 the use of asbestos gaskets was safe? 13 Stoker ever did anything to determine whether 13 MR. SAUL: Objection to form. 14 the asbestos gaskets in its products could be 14 A. I don't know how that determination 15 safely used, correct? 15 was made. I don't know if they did or we took 16 MR. SAUL: Objection for form. 16 information from the suppliers. I don't know 17 A. It was -- I was there in '73. This 17 how it was done. 18 was discussed repeatedly, and we were just told 18 Q. If safety is so important to Riley 19 that this was acceptable to go on, but we had 19 Stoker, why did Riley Stoker never warn anybody 20 to eventually replace. And we worked -- we 20 that was working with the asbestos gaskets it 21 were after the manufacturers to change it. 21 supplied that exposure to the asbestos from 22 That's what we did. 22 those gaskets could be hazardous? 23 Q. Okay. 23 MR. SAUL: Objection to form. 24 MR. STUEMKE: I'm going to object as 24 A. OSHA had already done all those 25 nonresponsive. 25 warnings to suppliers, vendors, designers, HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 275 Page 276 1 premises owners. Everybody had been warned. 1 attached to them might have had asbestos. 2 We couldn't add anything to that warning. 2 Q. They had asbestos millboard, asbestos 3 Q. So Riley Stoker assumed that everybody 3 rope, asbestos gasket, asbestos packing. It 4 else new as soon as it did? 4 had all of those? 5 MR. SAUL: Objection to form. 5 A. Packing I still don't -- I don't know 6 A. OSHA applied to everybody. Everybody 6 about that one. I never heard that until 7 did know. 7 today. But we continued to use those products 8 Q. Do you know whether OSHA required 8 until we could get a suitable substitute. 9 Riley Stoker to label its asbestos-containing 9 Q. You never tested to see whether the 10 products? 10 use of those products could release asbestos 11 A. We did not have asbestos-containing 11 fibers into the air, correct? 12 products. 12 A. I don't know who tested that. 13 MR. SAUL: Objection. 13 MR. SAUL: Objection to form. 14 A. We did not make them. It came from 14 A. I've already said that. I don't know 15 outside third-party suppliers, so it was not 15 who did it. 16 our product to label. 17 Q. Okay. Did Riley Stoker, after OSHA 16 17 Q. But you know Riley Stoker didn't? A. I don't believe Riley Stoker did. 18 told it about the hazards of asbestos in 1972, 18 MR. SAUL: Asked and answered. 19 do any testing of any of its 19 Q. Now, we talked about the board numbers 20 asbestos-containing components in its boilers 20 for boilers, and that this is information that 21 that it continued to use to see if using them 21 Riley Stoker maintains. It's true that Riley 22 was safe? 22 Stoker can locate the original installation 23 MR. SAUL: Objection to form. 23 point for every boiler its ever made, right? 24 A. You keep saying in the boiler. The 24 MR. SAUL: Objection to form. 25 boiler themselves didn't have asbestos. Pieces 25 A. I don't understand the question. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 70 (Pages 277 to 280) J. MICHAEL SMITH J. MICHAEL SMITH Page 277 Page 278 1 Q. Okay. For all the boilers that Riley 1 Q. Sir, Riley Stoker could identify every 2 Stoker has made since it started making boilers 2 customer that ever bought a boiler from it in 3 in 1931, Riley Stoker can check its records and 3 1972; they could have done that, correct? 4 see where that boiler was originally installed, 4 MR. SAUL: Objection to the extent it 5 correct? 5 misstates prior testimony. 6 A. If we have the name and the location, 6 A. It's possible. 7 we can do that. 7 Q. Riley Stoker could have sent a warning 8 Q. Okay. And up to 1972 Riley Stoker 8 to all of those customers telling them that 9 sold boilers that had asbestos-containing 9 there's asbestos-containing insulation in that 10 insulation in them as well as other 10 boiler, and these are the ways that you have to 11 asbestos-containing products, correct? 11 work with it in order to keep your employees 12 A. They might have had 12 safe. They could have done that, correct? 13 asbestos-containing insulation. 13 MR. SAUL: Objection. Calls for 14 MR. SAUL: Objection for form. 14 speculation. 15 A. Thermal insulation that contained 15 A. It had already been done by OSHA. 16 asbestos, they might have had that. It was 16 There's nothing we could have added that was 17 thermal insulation that might have had 17 more informative than what OSHA sent out. OSHA 18 asbestos, not asbestos insulation. We never 18 was the expert. 19 called it asbestos insulation, no one did that 19 Q. You could have sent information to be 20 I know of. 20 put on a placard or name plate or something 21 Q. Not even the Asbestos Workers Union 21 like that that would go on the boiler, couldn't 22 you hired to install it? 22 you? 23 MR. SAUL: Objection to form. 23 MR. SAUL: Objection. Calls for 24 A. I don't know about that. I can't 24 speculation. 25 speak for them. 25 A. OSHA took care of that. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 279 Page 280 1 Q. You're just expecting that all of your 1 product? 2 customers would follow OSHA guidelines? 2 A. I don't know. 3 A. We all had to. 3 Q. Okay. You're not aware of any that 4 Q. You know everybody always did? 4 would tell the jury? 5 A. I don't know that. 5 A. Specific document that this is the 6 Q. OSHA has an enforcement division, 6 last day of -- 7 correct? 7 Q. Right. 8 A. They sure were around our construction 8 A. I do not know of any. 9 sites enough. 9 Q. Okay. We have this March 1972 memo 10 Q. OSHA cites companies that don't comply 10 that talks about calcium silicate. You haven't 11 with OSHA, correct? 11 seen any document from Riley Stoker that talks 12 A. That's correct. 12 about 85 percent magnesia insulation products, 13 Q. So you know that not all companies 13 have you? 14 comply with OSHA requirements, true? 14 A. Not like this, no. 15 MR. SAUL: Objection to form. 15 Q. Do you know when Riley Stoker stopped 16 A. That's a stretch. I don't know that. 16 using asbestos-containing 85 percent magnesia 17 Q. Have you ever seen a company get an 17 thermal insulation in its boilers? 18 OSHA citation? 18 A. Thermal insulation that contained 19 A. I've seen Riley get plenty of them. 19 asbestos was ended in 1972 along with the 20 Q. They don't get those because they're 20 refractories. Anything that -- any thermal 21 complying with OSHA requirement, do they? 21 insulation refractory that contained asbestos 22 A. No. 22 was ended in '72 because the vendors stopped 23 Q. Sir, what documents exist that can 23 making it because of the OSHA rules. In '72, 24 show this jury when Riley Stoker last utilized 24 and I don't have a date, but this is indicative 25 an asbestos-containing thermal insulation 25 of what we were doing. We just plain stopped. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 71 (Pages 281 to 284) J. MICHAEL SMITH J. MICHAEL SMITH Page 281 Page 282 1 Q. So Riley Stoker utilized 1 Stoker contend that it had knowledge that 2 asbestos-containing thermal insulation and 2 asbestos could cause any disease in humans 3 refractory as long as the vendors continued to 3 before 1972? 4 make it? 4 MR. SAUL: Objection to the form to 5 MR. SAUL: Objection to form. 5 the extent it's been asked and answered. 6 A. That's not what I said. When this 6 A. You asked if we knew. 7 came out in '72, it was already putting the 7 Q. That asbestos, regardless of whether 8 brakes on because people didn't -- OSHA came 8 it's from insulation products or from anything 9 out and no one new. Now we know. So what are 9 else, just asbestos, did Riley Stoker know 10 we going to do about it? I can tell you that 10 before 1972 that asbestos could cause any 11 suppliers stopped making it, we stopped using 11 disease in humans? 12 it. 12 A. I don't know that. 13 Q. Okay. 13 MR. SAUL: Same objection. 14 A. It was in '72. 14 A. I don't know. 15 MR. SAUL: Jay, we've got 5:25. How 15 Q. Okay. So they may have learned that 16 are we doing here? 16 in 1956, correct? 17 MR. STUEMKE: I'm still on track. 17 MR. SAUL: Objection. Calls for 18 Q. Mr. Smith, you can't tell this jury 18 speculation. 19 when Riley Stoker stopped using asbestos 19 A. I don't know. 20 gaskets, can you? 20 Q. Are you familiar with a workers' 21 A. Specifically, no. 21 compensation claim that was made in 1957 -- 22 Q. Sir, I've gotten confused with a 22 strike that. 23 couple of ways that you've worded the answer to 23 Are you familiar with a workers' 24 some of the questions. I just want to make 24 compensation claim made in 1956, sir? 25 sure that the record is clear. Does Riley 25 A. Which one are you talking about? HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 283 Page 284 1 Q. This is the one by Lewis Munger, 1 Q. Okay. And you understand that in 1956 2 M-U-N-G-E-R. 2 a claim was made by Lewis Munger against 3 A. I have a record in here that I'm 3 Armstrong Cork, correct? 4 trying to find. 4 A. Yes. 5 Q. Sure. 5 Q. And you understand that Armstrong Cork 6 A. Okay. 6 caused Riley Stoker as a former employer of 7 Q. And for the record, you've turned to 7 Louis Munger to be brought into that action, 8 tab seven in your three-ring binder of 8 correct? 9 deposition materials? 9 A. We understand that Armstrong did bring 10 A. Yes. 10 Riley in along with seven other companies. 11 Q. Okay. Tab seven is a one-page 11 Q. Okay. And you understand those 12 handwritten set of notes followed by a printout 12 companies that were brought in to have been 13 from an Internet Website, correct? 13 former employers of Mr. Munger, correct? 14 A. Correct. 14 A. That's correct. 15 Q. Who wrote the one page of handwritten 15 Q. You know that Riley Stoker was, in 16 notes? 16 fact, a former employer of Mr. Munger, correct? 17 A. I did. 17 A. I could not figure out whether he was 18 Q. Okay. How did you gain the 18 employer or employed by Armstrong Cork who 19 information that you wrote on that one page of 19 worked for Riley. 20 notes? 20 Q. Okay. Let's take a look at this 21 A. I was given -- documents were given to 21 document then. 22 me in of my earlier depositions, and we 22 (Exhibit No. 22, Riley Stoker Memo, 23 reviewed them. And I wrote up a summary so I 23 1/9/57 so marked) 24 didn't have to keep going back and looking at 24 A. Okay. 25 them again. 25 Q. And this is a Riley Stoker document, HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 72 (Pages 285 to 288) J. MICHAEL SMITH J. MICHAEL SMITH Page 285 Page 286 1 correct? 1 hearing. Did I read that correctly? 2 A. Yes, it is. 2 A. Yes. 3 Q. It's a letter from the manager of 3 Q. So Riley Stoker knew in 1956 that its 4 industrial relations to the safety supervisor 4 employment for some period of time in 1952 of 5 dated January 7. It says 1956, but it's 5 an insulator was going to cause it potentially 6 actually 1957, isn't it? 6 to pay $200 to $300 in compensation for a 7 A. Probably. Date stamp is '57. 7 disability claim of that insulator, correct? 8 Q. You see in the first paragraph it 8 MR. SAUL: Objection to form. 9 mentions a memo of January 2, 1957? 9 A. This was a workers' compensation claim 10 A. Yes, I do. 10 which basically means that a worker is 11 Q. Okay. You see in the second paragraph 11 entitled, if he gets an illness, he can sue 12 there's a reference to a letter from your 12 anybody he ever worked for, whether or not they 13 office meaning, Mr. Michaelian, the safety 13 had any responsibility for his illness. It's a 14 supervisor for Riley Stoker. There's a letter 14 no-fault system. 15 from your office dated August 13, 1956, stating 15 Q. Okay. 16 "Claimant worked for Riley Stoker Corporation 16 A. So the insurance company handled 17 during part of 1952 as an insulator mechanic at 17 something like this, and he never said he got 18 the James DeYoung steam plant." Is that 18 -- I think what was he -- he had -- I can't say 19 correct? 19 it. Pneumocosis. 20 A. Yes, that's what it says. 20 Q. Pneumoconiosis? 21 Q. Okay. The letter goes on to state 21 A. Yes. And he said that's what he had. 22 that, this person Ms. Irvine is confident Riley 22 He never said he got -- was exposed to it at 23 Stoker corporation's share would not exceed two 23 Riley. There's no statement anywhere that said 24 or three hundred dollars in insurance benefits 24 he was. There was a potential award. And, 25 provided Lewis M. Munger should win at the 25 frankly, at that time they probably said it was HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 287 Page 288 1 going to be cheaper just to pay a couple of 2 hundred bucks than to fight the case. 1 Q. Can you tell the jury a single action 2 that Riley Stoker took in response to the Lewis 3 Q. Cheaper just to pay a couple of 4 hundred bucks than to investigate whether 3 M. Munger claim other than having to pay money 4 to resolve it? 5 there's actually any hazards, correct? 5 A. No, I can't. 6 A. I don't know that. 6 Q. There's another workers' comp claim in 7 Q. Okay. You know that they didn't 8 investigate whether there was a hazard to 7 1972, correct? 8 A. I don't know about that one. 9 insulators that they employed, correct? 9 Q. The Nead (phonetic) claim, Douglas 10 A. I don't know that for a fact. 10 Nead? 11 Q. Okay. There's no document that exists 11 12 that would suggest that Riley Stoker ever 12 A. No. Q. You're not familiar with that? 13 investigated whether there was a hazard to 14 insulators it employed relating to asbestos, 13 14 A. No. Never heard of that one. Q. You are familiar, though, with a 15 correct? 16 MR. SAUL: Objection to form. 15 workers' compensation claim in 1948, correct? 16 A. Yes. 17 A. None that I'm aware of. 17 Q. Okay. The claim was filed by Ernest 18 Q. Okay. And you haven't looked? 18 Moreno, correct? 19 A. No. 19 A. Yes. 20 Q. Even though this is your 19th 20 (Exhibit No. 23, Workers' Compensation 21 deposition in an asbestos case, you've never 21 Claim, 7/6/48 so marked) 22 looked for documents that say that? 22 A. Okay. 23 MR. SAUL: Object to the form. It 23 Q. Have you seen Exhibit 23 before, sir? 24 misstates his prior testimony. 24 A. I have seen -- I don't know if I've 25 A. I have not looked. 25 seen this exact one, but I've seen documents on HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 73 (Pages 289 to 292) J. MICHAEL SMITH J. MICHAEL SMITH Page 289 Page 290 1 this case. 1 Q. And this is a claim by Ernest Moreno, 2 Q. Okay. And you see on the first page 2 correct? 3 there's a caption that printing is very 3 A. Yes. 4 difficult to read but there's a received stamp 4 Q. Okay. And have you read this, sir? 5 from Riley Stoker Corporation, July 6, 1948, 5 A. I have. I've not read it this week. 6 correct? 6 Q. Do you see on the second page, sir, 7 A. Yes. 7 that there's a section entitled " Findings of 8 Q. In Worcester, Mass., correct? 8 Fact"? 9 A. Yes. 9 A. Yes. 10 Q. Okay. Then if you turn to the second 10 Q. Okay. Now, before we get into this, 11 page, there's another document from the same 11 what does your summary of the Moreno claim say 12 Ernest Moreno case, correct? 12 in your notebook? 13 A. It's what, please? 13 A. Basically, it says that there was no 14 Q. It's another document from the Ernest 14 description of work, what he actually did for 15 Moreno case. You see at the top it says 15 Riley. There was no award. It was filed too 16 "Ernest Moreno applicant"? 16 late. 17 A. Okay. 17 Q. Okay. Now, let's see what -- you'd 18 Q. Let's keep going, sir, to the page 18 agree this document comes from Riley Stoker's 19 that's Bates page labeled at the bottom RS 31. 19 files, right? 20 Do you have that page, sir? 20 A. It's got Riley Stoker stamps on it. I 21 A. Yes. 21 don't know where it came from. 22 Q. Okay. And you see this has a received 22 Q. Okay. Let's look at the findings of 23 stamp Riley Stoker Corporation in 1948 at the 23 fact section here. It says in paragraph one, 24 top? 24 "Ernest R. Moreno, born December 12, 1903, 25 A. Yes. 25 while employed as an asbestos worker by various HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 291 Page 292 1 employers in the State of California for 1 MR. SAUL: Objection to form. Asked 2 periods of time here in after set forth 2 and answered. 3 sustained injury arising out of and occurring 3 A. I -- know we know that there's 4 in the course of his employments by reason of 4 problems with asbestos today. 5 his occupational activities consisting of 5 Q. You'd agree that in 1948 when they got 6 exposure to asbestos dusts. The accumulated 6 this document if they'd have gone to the 7 effects of each day's exposure caused an 7 medical library, they could have found out 8 industry asbestosis resulting in temporary 8 asbestosis was a fatal disease too, correct? 9 total disability on December 8, 1944." Did I 9 A. I don't know that. 10 read that correctly, sir? 10 MR. SAUL: Objection to form. 11 A. Yes. 11 Q. You've never checked to see if that's 12 Q. Okay. So what we have here is a 12 true? 13 finding of fact that, number one, Ernest Moreno 13 A. No. 14 was an asbestos worker, correct? 14 Q. And this is important. I want you to 15 A. That's what it says. 15 look back at the finding of fact, number one. 16 Q. Okay. That he was exposed to asbestos 16 It says, "The accumulated effects of each day's 17 dust, correct? 17 exposure caused an industrial asbestosis." Do 18 A. Yes. 18 you see that? 19 Q. Okay. 19 A. Yes. 20 A. That's what it says. 20 Q. This is a factual finding by the 21 Q. And that that exposure caused an 21 California Industrial Accident Commission that 22 industrial asbestosis, correct? 22 each day of exposure that Mr. Moreno had to 23 A. Yes, it does. 23 asbestos contributed to cause his disease, 24 Q. Riley Stoker knows today that 24 correct? 25 asbestosis can be a deadly disease, correct? 25 A. That's what it says. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 74 (Pages 293 to 296) J. MICHAEL SMITH J. MICHAEL SMITH Page 293 Page 294 1 Q. You don't have any reason to dispute 1 number five, if you look on what's page four at 2 that that's scientifically true, do you? 2 the bottom -- do you see that? Finding of fact 3 A. I have no idea. 3 number five says that, "The claims against the 4 MR. SAUL: Objection to form. Calls 4 other defendants listed in finding number two 5 for speculation. 5 was not filed with the time allowed by law." 6 Q. Now, if we look at finding of fact 6 And it goes on. And I'll agree that includes 7 number two which begins on the next page, 7 Riley Stoker. 8 subparagraph B indicates that, "Commencing 8 Now, what that means, as you say in 9 August 27, 1942, to and including September 26, 9 your notes, that the case was dismissed as to 10 1942, a period of 31 days, said applicant was 10 Riley Stoker because it wasn't filed in time, 11 employed by Riley Stoker Corporation." 11 right? 12 Correct? 12 A. Yes. 13 A. Yes. 13 Q. Okay. The case wasn't dismissed 14 Q. Okay. And we know by looking back at 14 against Riley Stoker because anybody determined 15 finding of fact number one that he was exposed 15 that his employment with Riley Stoker didn't 16 while employed as an asbestos worker by the 16 cause his disease, was it? 17 employers that are set forth in finding of fact 17 MR. SAUL: Objection. Calls for 18 number two, correct? 18 speculation. It's outside the scope of the 19 MR. SAUL: Objection to form. 19 witness' knowledge. 20 A. That's what it says. 20 A. I don't know. 21 Q. What you have in your notes about this 21 Q. Okay. That's not what this finding of 22 case was that the case was dismissed because it 22 fact says. Just that it wasn't file in time so 23 was filed too late? 23 the case was dismissed? 24 A. Against Riley. 24 A. We're into legal stuff. I'm not a 25 Q. Okay. We see in finding of fact 25 lawyer. I'm not a hygienist. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 295 Page 296 1 Q. Okay. Now let's turn to the next 1 Q. Okay. But you see, sir, that when -- 2 page, sir, page five. Finding of fact number 2 in this case when they determined that an 3 10 begins, "Applicant was also employed by" and 3 employment did not cause disease they said so, 4 then it lists a number of four different 4 right? 5 employers or so. Finding of fact number 11 6 says, "The employment duties of the applicant 5 MR. SAUL: Counsel, you're again 6 asking the witness to speculate on matters that 7 during the periods of his employment with the 8 defendant employers as set forth in finding 7 he has no knowledge off. 8 MR. STUEMKE: I'm asking him to read 9 number 10 neither caused nor exacerbated 9 the document. 10 applicant's industrial injury, and for that 10 A. I read the document. That's what it 11 reason said employers and their insurance 11 says. I can't figure it out. 12 carriers are entitled to be dismissed and 12 Q. And they didn't say that about the 13 discharged here from." Did I read that 14 correctly? 13 work at Riley Stoker, did they? 14 A. I did not see that. 15 A. Yes. 16 Q. So what the Industrial Accident 15 Q. Okay. In 1948 we had the Industrial 16 Accident Commission of California telling Riley 17 Commission of California is saying here is that 17 Stoker that your employee, the asbestos worker 18 these jobs did not cause or exacerbate his 18 you hired to do insulating work caused him to 19 disease, correct? 19 be exposed to asbestos, caused an asbestosis, 20 MR. SAUL: Objection. You're calling 20 but you get off because the case wasn't filed 21 for speculation. Counsel, let's move it along 22 from this stuff into something that's relevant 21 in time? 22 MR. SAUL: Objection to form. 23 to this case. 24 A. This is all over and above me at this 23 Argumentative. Counsel, we've been down this 24 road. The witness has answered every question 25 point. 25 that you've asked. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 75 (Pages 297 to 300) J. MICHAEL SMITH J. MICHAEL SMITH Page 297 Page 298 1 THE WITNESS: I'm really at the end 1 they didn't do it. 2 here folks, so let's figure it out. 2 Q. My question isn't at this point what 3 Q. I just need an answer to the question. 3 they did do. I'm asking what they should have 4 A. I totally disagree. 4 done. As a corporate representative for Riley 5 MR. SAUL: If you know, you can 5 Stoker, if Riley Stoker knew in 1948 that 6 answer. 6 exposure to asbestos from insulation of dust 7 A. I can't right now. I'm totally 7 could cause disabling fatal diseases, shouldn't 8 confused at this point. 8 they have told somebody? 9 Q. Mr. Smith, you would agree that there 9 A. I don't know that was what happened 0 is nothing that you've ever seen at Riley 10 then. I read this today. I don't know what 1 Stoker and nothing that Riley Stoker's lawyers 11 happened then. You're asking me to speculate. 2 have ever showed you that would suggest that 12 You're calling me a corporate witness again. 3 after the Moreno case Riley Stoker ever did a 13 And I've already said that I'm here to answer 4 single thing to investigate the hazards of 14 questions. And this is really the end of the 5 asbestos? 15 day, and I don't know where we're going, but -6 MR. SAUL: Objection to form. It's 16 I've had enough. 7 argumentative and misstates prior testimony. 17 MR. STUEMKE: Okay. I'll pass the 8 A. I've never seen anything. 18 witness -- strike that. One more question. 9 Q. Sir, if Riley Stoker understood in 19 Q. Have I been politeto you today, sir? ! 0 1948 that exposure to asbestos from insulation 20 A. Sure. 1 work could cause a fatal disease, don't you 21 MR. STUEMKE: Okay. I'll pass the 2 think it should have told somebody about that? 22 witness now. !3 MR. SAUL: Objection to form. 23 MR. SAUL: Folks on the phone, do we 4 A. I can't answer that. I wasn't there. 24 have any questions? 5 I don't know what they did or didn't do or why 25 DEFENSE COUNSEL: No questions. HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH J. MICHAEL SMITH Page 299 Page 300 1 MR. SAUL: Okay. It's lonely out 1 CHANGES AND SIGNATURE 2 there. Concluded. 2 PAGE LINE CHANGE 3 REASON 3 THE VIDEOGRAPHER: This is the end of 4 4 tape number five, and the deposition time is 5 5:47. We're off the record. 6 (Whereupon, the deposition concluded 5 6 7 8 7 at 5:47 p.m.) 8 9 9 10 11 12 I, J. MICHAEL SMITH, have read the 10 foregoing deposition and hereby affix my 13 signature that the same is true and correct 11 except as noted above. 12 14 13 15 J. MICHAEL SMITH 16 THE STATE OF ) 14 COUNTY OF ) 15 17 Before me on this 16 day, personally appeared J. MICHAEL SMITH, 18 known to be (or proved to me under oath or 17 through_______ __)to be the person whose name 18 19 is subscribed to the foregoing instrument and 19 acknowledged to me that he executed the same 20 for the purposes and consideration therein 20 expressed. 21 21 Given under my hand and seal of office this day of , 2009. 22 22 23 Notary Public in and for the State of 24 23 24 25 25 HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM 76 (Pages 301 to 303) J. MICHAEL SMITH J. MICHAEL SMITH Page 301 Page 302 1 REPORTER'S CERTIFICATION 1 2 SIMON EDDINS & GREESTONE, LLP 2 DEPOSITION OF J. MICHAEL SMITH 3232 McKinney Ave., Suite 610 3 WEDNESDAY, MAY 13, 2009 3 Dallas, TX 75204 BY: JAY E. STUEMKE, ESQ. 4 5 I, Darlene Caiazzo Sousa, Registered 4 214.276.7680 214.276.7699 (Fax) 5 CETRULO & CAPONE, LLP 6 Professional Reporter and Certified Shorthand 6 Two Seaport Lane Boston, MA 02210 7 Reporter in and for the Commonwealth of 7 BY: JASON M. SAUL, ESQ. 617.217.5500 617.217.5200 (Fax) 8 Massachusetts, hereby certify to the following: 8 9 That the witness, J. MICHAEL SMITH, was 9 DEHAY & ELLISTON, LLP 36 South Charles Street 10 duly sworn by the officer and that the 11 transcript of the oral deposition is a true 10 Suite 1300 Baltimore, MD 21201 11 BY: TOM RADCLIFFE, ESQ. 12 record of the testimony given by the witness; 410.783.7001 410.783.7221 (Fax) 12 13 14 That the deposition was submitted on 15 to the witness or the attorney for 16 the witness for examination, signature, and 13 TURNER PADGET GRAHAM & LANEY, P.A. P.O. Box 1473 14 1901 Main Street, 17th Floor Bank of America Building 15 Columbia, SC 29201 BY: THOMAS M. KENNADAY, ESQ. 16 17 returned to HG LITIGATION SERVICES, P.C. 17 803.254.2200 803.799.3957 (Fax) 18 by 19 NELSON MULLINS RILEY& SCARBOROUGH, LLP 18 1320 Main Street; 17th Floor Columbia, SC 29201 20 That pursuant to information given to the 19 BY: ANTHONYHAYES, ESQ. 803.255.9416 803.256.7500 (Fax) 21 deposition officer at the timesaid testimony 20 22 was taken, the followingincludes counsel for 21 O'Connell, Tivin, Miller & Burns 645 Tollgate Road Suite 220 23 all parties of record: 22 Elgin, IL 60123 BY: THOMAS J. BURNS, ESQ. 24 23 847.721.4603 24 25 25 HG LITIGATION SERVICES HG LITIGATION SERVICES HGLITIGATION.COM HGLITIGATION.COM J. MICHAEL SMITH Page 303 1 I further certify that I am neither 2 counsel for, related to, nor employed by any of 3 the parties or attorneys in the action in which 4 this proceeding was taken, and further, that I 5 am not financially or otherwise interested in 6 the outcome of the action. 7 8 Certified to by me this day of 9 , 2009. 10 11 12 13 14 DARLENE CAIAZZO SOUSA, CSR, RPR #004028 15 HG LITIGATION SERVICES, P.C. 16 2501 Oak Lawn Avenue, Suite 600 17 Dallas, TX 75219 18 214.521.1188 214.521.1034 (Fax) 19 1.888.656.DEPO 20 21 22 23 24 25 HG LITIGATION SERVICES HGLITIGATION.COM