Document X7op005gMmDznNBK4jyLV4DDK

1 IN THE COURT OF COMMON PLEAS IN AND FOR PHILADELPHIA COUNTY 2 --3 4 ESTATE OF RONALD DAVIS, : MARCH TERM, 2009 : 5 Plaintiff, : 6 vs. : : : 7: SUNOCO, INC. (R&M), et : 8 al., : : 9 Defendants. : No. 01835 --- 10 Tuesday, November 9, 2010 11 --12 13 Videotaped Deposition of JOHN 14 MASAITIS, taken at the Law Offices of Dickie 15 McCamey & Chilcote, Two PPG Plaza, Suite 400, 16 Pittsburgh, Pennsylvania 15222, beginning at 17 9:58 a.m., before Brigitte A. Strain, a 18 Federally Certified Registered Professional 19 Reporter, Certified LiveNote Reporter and a 20 Notary Public. 21 - - - 22 23 VERITEXT NATIONAL COURT REPORTING COMPANY MID-ATLANTIC REGION 24 1801 Market Street - Suite 1800 Philadelphia, Pennsylvania 19103 25 1 1 APPEARANCES: 2 LOCKS LAW FIRM 3 BY: ANDREW J. DuPONT, ESQUIRE 601 Walnut Street 4 Suite 720 East Philadelphia, Pennsylvania 19106 5 215.893.0100 adupont@lockslaw.com 6 Representing the Plaintiff 7 COATS ROSE 8 BY: JAMES M. RILEY, JR., ESQUIRE 3 Greenway Plaza, Suite 2000 9 Houston, Texas 77046 713.653.7375 10 jriley@coatsrose.com Counsel for Radiator Specialty 11 12 ALSTON & BIRD LLP BY: SARAH BABCOCK, ESQUIRE 13 1201 West Peachtree Street Atlanta, Georgia 30309-3424 14 404.881.7000 Sarah.Babcock@alston.com 15 Representing the Defendant, Handschy Industries LLC 16 (Via teleconference) 17 DICKIE, McCAMEY & CHILCOTE, P.C. 18 BY: KATHERINE S. GALLAGHER, ESQUIRE Two PPG Place 19 Suite 400 Pittsburgh, Pennsylvania 15222 20 412.392.5280 Kgallagher@dmclaw.com 21 Representing the Defendant, The Sherwin-Williams Company 22 23 24 25 2 1 APPEARANCES (continued): 2 ECKERT SEAMANS BY: JODI DYAN OLEY, ESQUIRE 3 Two Liberty Place 50 South 16th Street 4 22nd Floor Philadelphia, PA 19102 5 215.851.8473 Joley@eckertseamans.com 6 Representing the Defendant, Tower Products (Via teleconference) 7 8 FORMAN PERRY WATKINS KRUTZ & TARDY LLP BY: PHILLIP S. SYKES, ESQUIRE 9 BY: LEA ANN SMITH, ESQUIRE City Centre, Suite 100 10 200 South Lamar Street Jackson, Mississippi 39201-4099 11 601.969.7840 Psykes@fpwk.com 12 Lsmith@fpwk.com Representing the Defendant, U.S. Steel 13 14 KENT & McBRIDE, P.C. 15 BY: JENNIFER HESLER, ESQUIRE 1617 John F. Kennedy Boulevard 16 Suite 1200 Philadelphia, Pennsylvania 19103 17 215.568.1800 Jhesler@kentmcbride.com 18 Representing the Defendant, Braden Sutphin Ink 19 (Via teleconference) 20 KENT & McBRIDE, P.C. 21 BY: GEORGE F. DALE, ESQUIRE 1617 John F. Kennedy Boulevard 22 Suite 1200 Philadelphia, Pennsylvania 19103 23 215.568.1800 Gdale@kentmcbride.com 24 Representing the Defendant, WM Barr Company (Via teleconference) 25 3 1 APPEARANCES (continued): 2 KUTAK ROCK LLP BY: JULIE B. NEGOVAN, ESQUIRE 3 Suite 28B Two Liberty Place 4 50 South Sixteenth Street Philadelphia, PA 19102-2519 5 215.299.4384 Julie.Negovan@kutakRock.com 6 Representing the Defendant, Handschy Industries 7 8 MARGOLIS EDELSTEIN BY: MARK COHEN, ESQUIRE 9 170 S. Independence Mall West 601 Walnut Street, 4th Floor 10 Philadelphia, PA 19106 215.931.5819 11 Mcohen@margolisedelstein.com Representing the Defendant, Fehnel Press 12 Service & Supply, LLC (Via teleconference) 13 14 MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. BY: MICHAEL HAMILTON, ESQUIRE 15 913 N. Market Street Suite 800 16 Wilmington, DE 19801 302-658-6688 17 Mhamilton@mooclaw.com Representing the Defendant, Rycoline 18 Products, Inc., a Division of Sun Chemical Commercial Group a/k/a Rycoline Products, 19 LLC, and Successor to Rogersol, Inc. 20 MARON MARVEL BRADLEY & ANDERSON, P.A. 21 BY: LINA M. CARRERAS, ESQUIRE 1700 Market Street, Suite 1500 22 Philadelphia, PA 19103 215.231.7100 23 LMC@maronmarvel.com Counsel for Defendant, Printers Service 24 Company d/b/a PRISCO (Via teleconference) 25 4 1 APPEARANCES (continued): 2 MARSHALL, DENNEHEY, WARNER, COLEMAN & 3 GOGGIN BY: JENNIFER M. BRANCH, ESQUIRE 4 1845 Walnut Street Philadelphia, PA 19103-4708 5 215.575.2600 Jmbranch@mdwcg.com 6 Representing the Defendant, Van Son Holland Ink Corp. of America, and Cabrun Ink Products 7 Corp. (Via teleconference) 8 9 MARSHALL, DENNEHEY, WARNER, COLEMAN & 10 GOGGIN BY: LEE C. DURIVAGE, ESQUIRE 11 1845 Walnut Street Philadelphia, PA 19103-4708 12 215.575.2584 Lcdurivage@mdwcg.com 13 Representing the Defendant, Fujifilm, Hunt Chemicals, USA, Inc., f/k/a Fuji Hunt 14 Photographic Chemicals, Inc., Successor to Anchor/Lith-Kem-Ko, Inc. 15 (Via teleconference) 16 McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP 17 BY: RICHARD C. BIEDRZYCKI, ESQUIRE 1617 John F. Kennedy Boulevard 18 Suite 1500 Philadelphia, Pennsylvania 19103 19 215.557.2981 Rbiedrzycki@mdmc-law.com 20 Representing the Defendants, Chevron U.S.A. and Sunoco, Inc. (R&M) 21 (Via teleconference) 22 23 24 25 5 1 APPEARANCES (continued): 2 MORGAN LEWIS & BOCKIUS LLP 3 BY: AARON SKRYPSKI, ESQUIRE 1701 Market Street 4 Philadelphia, PA 19103-2921 215.963.5149 5 Ecline@morganlewis.com Askrypski@morganlewis.com 6 Representing the Defendant, Philips Electronics North America Corp. (PENAC) 7 (Via teleconference) 8 NELSON LEVINE deLUCA & HORST 9 BY: ROBERT S. STICKLEY, ESQUIRE 518 Township Line Road 10 Suite 300 Blue Bell, PA 19422 11 215.358.5158 Rstickley@NLDHlaw.com 12 Representing the Defendant, EMCO Chemical Distributors, Inc. 13 (Via teleconference) 14 PEPPER HAMILTON LLP 15 BY: MEREDITH A. STOW, ESQUIRE 3000 Two Logan Square 16 18th and Arch Streets Philadelphia, PA 19103 17 215.981.4341 Stowm@pepperlaw.com 18 Representing the Defendant, Sun Chemical (Via teleconference) 19 20 REILLY JANICZEK & McDEVITT, P.C. BY: DAVID P. LODGE, ESQUIRE 21 One South Penn Square Building, Suite 410 Philadelphia, PA 19107 22 215.972.5200 Dlodge@rjm-law.com 23 Representing the Defendant, Varn International, Inc. and Day International, 24 Inc. (Via teleconference) 25 6 1 APPEARANCES (continued): 2 SALMON, RICCHEZZA, SINGER & TURCHI, LLP 3 BY: MICHELE L. WECKERLY, ESQUIRE 1700 Market Street, Suite 3110 4 Philadelphia, PA 19103 215.606.6600 5 Mweckerly@srstlaw.com Representing the Defendant, National Paint 6 Industries, Inc. (Via teleconference) 7 8 SHEEHY WARE & PAPPA, P.C. BY: RAYMOND A. NEUER, ESQUIRE 9 BY: LEE ANN SMITH, ESQUIRE 909 Fannin Street, Suite 2500 10 Houston, Texas 77010-1008 713.951.1000 11 Rneuer@sheehyware.com Representing the Defendant, T H Agriculture 12 & Nutrition 13 14 STEVENS & LEE, P.C. BY: DAVID J. PARSELLS, ESQUIRE 15 620 Freedom Business Center, Suite 200 King of Prussia, PA 19406 16 610.205.6000 DJP@stevenslee.com 17 Representing the Defendant, International Paper Company, d/b/a XPEDX 18 (Via teleconference) 19 20 SWARTZ, CAMPBELL, LLC BY: CHARLES D. ROME, ESQUIRE 21 Two Liberty Place, 28th Floor 50 South 16th Street 22 Philadelphia, PA 19102 215.299.1910 23 Crome@swartzcampbell.com Representing the Defendant, Graphic 24 Chemical & Ink Co. 25 7 1 APPEARANCES (continued): 2 3 THE CAIRONE LAW FIRM PLLC BY: MATT CAIRONE, ESQUIRE 4 38 Virginia Lane Canonsburg, Pennsylvania 15317-5802 5 (888) 609-1113 Mcairone@caironelaw.com 6 Representing the Defendant, U.S. Steel 7 8 TRESSLER, LLP BY: PETER CHOY, ESQUIRE 9 744 Broad Street Suite 1510 10 Newark, New Jersey 07102 973.848.2900 11 Pchoy@tresslerllp.com Representing the Defendant, Deleet 12 Merchandising Corporation (Via teleconference) 13 14 WARD GREENBERG HELLER & REIDY LLP 15 BY: SCOTT R. JENNETTE, ESQUIRE 300 State Street 16 Rochester, New York 14614 585.454.0700 17 Sjennette@wardgreenberg.com Representing the Defendant, Eastman-Kodak 18 (Via teleconference) 19 20 Also Present: 21 Adrisen Young, Video Technician 22 23 24 25 8 1 INDEX --- 2 Testimony of: John Masaitis 3 By Mr. DuPont......................14, 180 4 By Mr. Neuer..................... 160, 186 By Mr. Riley......................179 5 --- 6 EXHIBITS --7 EXHIBIT NUMBER DESCRIPTION PAGE MARKED 8 Masaitis 1 Davis Deposition 9 Materials 18 10 Masaitis 2 Invoice, THAN 2209 51 11 Masaitis 3 MSDS, Benzene, Benzol H-D 649-650 68 12 Masaitis 4 USS Chemicals Safety 13 Data Sheet, USS 02617A-2619 85 14 Masaitis 5 USS Chemicals Safety 15 Data Sheet, Benzene USS 05889-891 87 16 Masaitis 6 Shipping Paper 17 USS 02519 18 Masaitis 7 Product Shipping 92 Data Sheet 19 USS 02520 20 Masaitis 8 Benzene 99 USS 01246 101 21 Masaitis 9 Product Shipping 22 Data Sheet, Benzene USS 02517-18 100 23 Masaitis 10 Label, Benzene 24 USS 00296-97 102 25 9 1 EXHIBITS (continued): 2 EXHIBIT NUMBER DESCRIPTION PAGE MARKED 3 Masaitis 11 Chemical Safety Data Sheet SD-2, Benzene 4 USS 0298-313 104 5 Masaitis 12 USS Chemicals - Benzene USS 00316 114 6 Masaitis 13 MCA Chem-Card, Benzene 7 USS 00314 114 8 Masaitis 14 Cargo Information Card Benzene, USS 00315 114 9 Masaitis 15 Environmental Health 10 Monitoring Manual USS 2298-2361 118 11 Masaitis 16 Health Hazards in use 12 Of Solvents for Motor Vehicles 13 USS 03850-3859 14 Masaitis 17 MSDS 127 USS 08892-93 152 15 Masaitis 18 Safety Data Sheet 16 For Raffinate USS 16-22 154 17 Masaitis 19 Letter, 11/13/52 18 To E.C. Myers USS 16982 189 19 20 21 22 23 24 25 10 1 DEPOSITION SUPPORT INDEX 2 INSTRUCTION NOT TO ANSWER: Page Line 3 (None) 4 5 REQUEST FOR PRODUCTION OF DOCUMENTS: 6 Page Line Description 7 (None) 8 9 STIPULATIONS: Page Line 10 13 19 11 12 QUESTIONS MARKED: Page Line 13 (None) 14 15 16 17 18 19 20 21 22 23 24 25 11 1 JOHN MASAITIS 2 VIDEO TECHNICIAN: My name is 3 Adrisen Young representing Veritext. 4 The date today is November 9, 2010, 5 and the time is approximately 9:58 6 a.m. 7 This deposition is being held at 8 the office of Dickie McCamey & 9 Chilcote, located at Two PPG Place, 10 Suite 400, Pittsburgh, Pennsylvania 11 15222. 12 The caption of this case is 13 Ronald Davis versus Sunoco 14 Incorporated, et al., filed in the 15 Court of Common Pleas of Philadelphia 16 County, March Term 2009. 17 The name of the witness is John 18 Masaitis. 19 At this time will the attorneys 20 present please identify themselves for 21 the record. 22 MR. DuPONT: Andrew DuPont from 23 the Locks Law Firm for the Estate of 24 Ronald Davis. 25 MR. NEUER: Ray Neuer here for T 12 1 JOHN MASAITIS 2 H Agriculture and Nutrition. 3 MS. GALLAGHER: Katherine 4 Gallagher for Sherwin Williams. 5 MR. HAMILTON: Michael Hamilton 6 for Rycoline Products. 7 MS. NEGOVAN: Julie Negovan for 8 Handschy Industries. 9 MS. SMITH: Lea Ann Smith, 10 United States Steel Corporation. 11 MR. SYKES: Phillip Sykes for 12 U.S. Steel. 13 MR. CAIRONE: Matt Cairone for 14 United States Steel Corporation. 15 VIDEO TECHNICIAN: Our court 16 reporter, Brigitte Strain of Veritext, 17 will please swear in the witness. 18 - - 19 (It is hereby stipulated and 20 agreed by and among counsel for the 21 respective parties that sealing, 22 certification and filing are waived, 23 that all objections, except as to the 24 form of the question, be reserved 25 until the time of trial, and that an 13 1 JOHN MASAITIS 2 objection by one defendant inures to 3 the benefit of all defendants.) 4 --5 JOHN MASAITIS, after having been 6 first duly sworn, was examined and 7 testified as follows: 8 --9 EXAMINATION 10 - - 11 BY MR. DuPONT: 12 Q. Good morning, Mr. Masaitis. 13 A. Good morning. 14 Q. Am I pronouncing your name 15 correctly? 16 A. That's good enough. 17 Q. All right. If I get it wrong, 18 please let me know. 19 A. No, that's fine. 20 Q. Thank you. My name is Andrew 21 DuPont, we introduced ourselves briefly this 22 morning. I am the attorney for the Estate of 23 Ronald Davis, I'm here to take your 24 deposition. I know you've given depositions 25 in the past, but I'll briefly review the 14 1 JOHN MASAITIS 2 rules. 3 If I ask you a question that 4 you do not understand, please let me know. 5 If you answer the question, we'll assume that 6 you answered the question that I asked and 7 that you understood that question. Is that 8 okay? 9 A. Yes. 10 Q. We should not talk over each 11 other, because that makes our court 12 reporter's job difficult. So I will allow 13 you to finish your response before I begin my 14 next question. If you'll allow me to finish 15 my question before you begin your response, I 16 would appreciate that as well. 17 A. Yes. 18 Q. All right. If you need a break 19 at any point in time, let us know that. I 20 just ask that you answer any question that's 21 pending before you take a break. Okay? 22 A. Sure. 23 Q. Sir, what -24 MR. BIEDRZYCKI: Andrew, before 25 you begin, this is Rich Biedrzycki, 15 1 JOHN MASAITIS 2 can we just have a stipulation that an 3 objection by one is an objection by 4 all. 5 MR. DuPONT: Yes, we've been 6 stipulating at all these depositions 7 that an objection by one is an 8 objection by all. And that the -- all 9 objections, except as to form, are 10 preserved until the time of trial. 11 MR. BIEDRZYCKI: Thanks. 12 BY MR. DuPONT: 13 Q. All right. Okay. When was the 14 last time you gave a deposition? 15 A. Last summer. 16 Q. Do you recall the name of the 17 case? 18 A. No, I don't. 19 Q. What did that case involve? 20 A. That case was benzene 21 raffinate, similar to this. 22 Q. Before we get into your prior 23 testimony, I would like to ask you what you 24 did to prepare for your deposition today? 25 A. I went through material that 16 1 JOHN MASAITIS 2 was sent to me by the law firm representing 3 U.S. Steel. I also met with the U.S. Steel 4 attorneys yesterday. 5 Q. What material was sent to you 6 that you reviewed? 7 A. I had a book of it over here 8 (indicating.) 9 Q. All right. Is that accessible 10 to you right now? You don't have to get up. 11 If you can point it to me, I'd be happy to 12 get it for you. 13 A. Yes. 14 Q. This one here, in the black 15 book? 16 A. Yes. 17 Q. Let me hand that to you. 18 A. Thank you. Thank you very 19 much. 20 Q. You're welcome. 21 And can you tell me generally, 22 what does that binder consist of? 23 A. There's a table of contents. 24 It shows the deposition notice, Amended 25 Complaints, U.S. Steel discovery responses, 17 1 JOHN MASAITIS 2 deposition transcripts, U.S. Steel records of 3 sales. 4 Q. Let me stop you there. If we 5 could -- if you don't mind, could I take the 6 Table of Contents out and mark that as an 7 exhibit just so I have a record of what you 8 have reviewed? 9 A. Sure. 10 Q. Thank you. 11 - - 12 (Whereupon the document was 13 marked, for identification purposes, 14 as Masaitis Exhibit Number 1.) 15 - - 16 BY MR. DuPONT: 17 Q. Sir, approximately how much 18 time did you spend reviewing the materials 19 that are listed on Exhibit 1? 20 A. Well, it was sent to me last 21 week. I would say maybe eight hours, ten 22 hours, going through it. 23 Q. And are you compensated for 24 your time in preparing for depositions and 25 testifying at depositions on behalf of U.S. 18 1 JOHN MASAITIS 2 Steel? 3 MR. CAIRONE: I object to the 4 form. It's two questions. 5 THE WITNESS: I don't charge for 6 the time that I spend testifying, but 7 I do charge for the industrial hygiene 8 consulting, preparation, that sort of 9 thing. 10 BY MR. DuPONT: 11 Q. Can you tell me what you mean 12 when you say you charge for the industrial 13 hygiene consulting, preparation? 14 A. Well, I'm an industrial hygiene 15 consultant. I have been since I retired, and 16 I consider this industrial hygiene consulting 17 because I am not charging for the time that I 18 am testifying. 19 Q. Okay. How much do you charge, 20 either on an hourly basis or otherwise, for 21 your consultant work? 22 A. 300. 23 Q. $300 per hour? 24 A. Yes. 25 Q. Can you estimate for me 19 1 JOHN MASAITIS 2 approximately how many hours per year you 3 work on behalf of U.S. Steel as an industrial 4 hygiene consultant? 5 A. This was the first activity 6 this year. 7 Q. How about last year, how many 8 hours did you spend doing that? 9 A. Oh, I would say 12, 14. 10 Something like that. Possibly 20. It's not 11 very often. 12 Q. Do you have a written agreement 13 or contract with U.S. Steel concerning your 14 work as an industrial hygiene consultant? 15 A. No. 16 Q. Do you testify as an expert on 17 behalf of U.S. Steel? 18 A. I have in the past. 19 Q. Do you know whether or not you 20 will be testifying as an expert in this 21 case -22 A. No. 23 Q. -- for U.S. Steel? 24 A. No. 25 Q. No, you do not know or, no, you 20 1 JOHN MASAITIS 2 will not be? 3 A. To my knowledge, I will not be. 4 Q. All right. Did you make any 5 kind of notes or memorandum as a result of, 6 or during the course of your reviewing the 7 materials that you have in front of you? 8 A. No. 9 Q. And did you say that you 10 received these materials last week? 11 A. Yes. 12 Q. Do you maintain your own 13 collection of materials, documents, things 14 like that, related to U.S. Steel? 15 A. No. 16 Q. Do you maintain your own 17 collection of materials relating to benzene 18 in general? 19 A. No. 20 Q. When did you first begin to 21 testify on behalf of U.S. Steel as an 22 industrial hygiene consultant? 23 A. I believe it was 1997, the year 24 after I retired. 25 Q. Do you understand that you're 21 1 JOHN MASAITIS 2 here as the corporate representative of U.S. 3 Steel? 4 A. Yes. 5 Q. And that means you're speaking 6 on behalf of the corporation? 7 A. Yes. 8 Q. Did you testify as a corporate 9 representative of U.S. Steel prior to 1997? 10 A. I may have. I may have done 11 some testifying in '96 because as I was 12 sitting here now I was thinking I retired in 13 February of '96. And I think there may have 14 been some other litigation I represented the 15 corporation in. I think -- it could have 16 been something in asbestos in '96, later on, 17 after I retired. 18 Q. Okay. Have you testified or 19 been retained as an expert by any companies 20 other than U.S. Steel? 21 A. Yes. 22 Q. What companies are those? 23 A. I did some work for, I believe 24 it was Koppers. I have done work for other 25 companies shortly after I retired. I can't 22 1 JOHN MASAITIS 2 recall. I've done consulting for The 3 Americanized Steel Institute on some 4 radiation matters. And I -- I -- I can't 5 recall. There weren't that many. 6 Q. Did your consulting work for 7 Koppers involve litigation? Was it given in 8 the context of litigation? 9 A. I believe I gave a deposition, 10 but I didn't go to trial. 11 Q. Okay. Did that case concern 12 benzene exposure? 13 A. No. 14 Q. Was there a particular toxin at 15 issue? 16 A. I believe it was regarding coke 17 emissions. 18 Q. Has all of your consulting work 19 for U.S. Steel, from 1997 to the present, 20 related to benzene exposure? 21 A. No. 22 Q. In what other areas of 23 litigation have you provided support? 24 A. Asbestos. That's primarily it, 25 asbestos and the benzene. 23 1 JOHN MASAITIS 2 Q. Can you estimate for me how 3 many times you've testified on behalf of U.S. 4 Steel, either in a deposition or at trial, in 5 a case relating to benzene exposure? 6 A. I may have given six or eight 7 depositions. 8 Q. Have you ever testified at a 9 trial? 10 A. Yes. 11 Q. On how many occasions? 12 MR. CAIRONE: Andrew, to be 13 clear, are you talking about any trial 14 or a benzene trial? 15 MR. DuPONT: Good question. 16 BY MR. DuPONT: 17 Q. Have you ever testified at a 18 trial in a case concerning benzene exposure? 19 A. Yes. I recall one. I don't 20 think there were any others relating to 21 benzene. I can recall one. 22 Q. Do you recall the name of the 23 case where you testified at trial regarding 24 benzene exposure? 25 A. No. 24 1 JOHN MASAITIS 2 Q. Do you recall where the trial 3 was geographically? 4 A. It was -- was it in 5 Mississippi? Yes, Mississippi. 6 Q. Do you recall the name of the 7 attorney that represented the injured person? 8 A. It was Karlaps (phonetic). 9 MR. SYKES: No, he represented 10 U.S. Steel. 11 THE WITNESS: Represented U.S. 12 Steel. 13 MR. CAIRONE: The question was, 14 who represented the injured person. 15 THE WITNESS: Oh, the injured 16 person, I'm sorry. My hearing isn't 17 what it used to be either, I thought 18 you were talking about the attorney 19 for U.S. Steel. No, I don't. 20 BY MR. DuPONT: 21 Q. Okay. I will try and keep my 22 voice up. If at any point in time you can't 23 hear a question I'm asking, please let me 24 know and I'll -25 A. Okay. 25 1 JOHN MASAITIS 2 Q. -- and I'll remember myself, or 3 remind myself to keep my voice up. 4 All right. I'd like to learn a 5 little bit about the background of U.S. 6 Steel. I have one of your prior deposition 7 transcripts that your counsel produced to me 8 and I want to just get a little more 9 information. Do I recall correctly that U.S. 10 Steel has been producing benzene since the 11 1920s? 12 A. U.S. -- I can't recall the 13 exact date, but when the coke by-product 14 plants came into operation, that's when U.S. 15 Steel started to produce benzene as a 16 by-product of those ovens, which was probably 17 in about 1920. 18 Q. Are you able to tell me where 19 U.S. Steel has ranked in terms of producers 20 of benzene in the United States since the 21 1920s? Understanding that it's changed over 22 time, but can you give me any sense of that? 23 A. No. Other than -- to my 24 knowledge, that we were producing quite a bit 25 during the thirties, forties, the war years, 26 1 JOHN MASAITIS 2 when a lot of steel was being made. 3 Q. Can you tell me, during the 4 1970s, where U.S. Steel ranked in terms of 5 producers of benzene in the United States? 6 A. No, I can't. 7 Q. Do you know whether they were 8 in the top ten? 9 A. I wouldn't know. It's a, you 10 know, correlation with the amount of steel 11 that is being produced. I -- I wouldn't 12 venture a guess. 13 Q. Okay. In how many locations 14 has U.S. Steel produced benzene? 15 A. Well, each location we had the 16 by-product, COG Mon operations. What do I 17 want to say? Six or eight. 18 Q. Is that consistent from the 19 1920s up through the -- I believe you 20 previously testified that in about the early 21 to mid 1980s, the benzene producing 22 operations of U.S. Steel kind of tailed off? 23 A. Let me correct that last 24 statement. Actually you said benzene. I was 25 looking at the light oil, which is -- benzene 27 1 JOHN MASAITIS 2 is a constituent of light oil. I think there 3 were only two or three plants where we 4 actually broke the light oil down to benzene, 5 toluene and xylene. So if I could correct 6 that last statement regarding the coke 7 by-product plants. 8 Q. All right. Let me see if I 9 understand that correctly. There have been 10 six to eight locations at which U.S. Steel 11 produced light oil, of which benzene, toluene 12 and xylene are components. 13 A. There were six plants, as I 14 recall, thereabouts, that produced coke. And 15 at those plants, the light oil was a 16 by-product of the coke. And at three plants, 17 I only recall that those three plants 18 produced benzene, toluene and xylene from the 19 light oil. They had a further extraction 20 process. 21 Q. Was that further extraction 22 process done through what's called a Udex 23 unit, or has that technology changed over 24 time? 25 A. Well, we called it a BTX plant. 28 1 JOHN MASAITIS 2 But I think they only had the Udex process at 3 Claritin. 4 Q. So Claritin was one of the 5 plants where benzene was produced. What were 6 the other two plants where benzene was 7 produced? 8 A. I recall it being produced at 9 Gary Works and also Geneva Works. 10 Q. Gary Works is that in Gary, 11 Indiana? 12 A. Yes. 13 Q. During which years did U.S. 14 Steel produce benzene at the Claritin Works? 15 A. I can't say specifically when 16 the BTX plants went into operation, but I 17 would say it would be early on. We were 18 producing benzene in the twenties. There had 19 to be some type of extraction. 20 Q. And when did U.S. Steel stop 21 producing benzene at Claritin? 22 A. I think they're still producing 23 it. 24 Q. How about the Gary Works in 25 Gary, Indiana, when did U.S. Steel begin to 29 1 JOHN MASAITIS 2 operate that plant? 3 MR. CAIRONE: Let me put an 4 objection on the record. In fairness 5 to the witness, I don't think that 6 this was a subject notified for 7 deposition. So unless you can point 8 me to where it was, he hasn't been 9 prepared. 10 I'm going to let the question 11 go, but I want that on the record, 12 that this was not a subject for this 13 witness to be prepared. 14 BY MR. DuPONT: 15 Q. Okay. You can answer. 16 A. And the question was? 17 Q. Sure. Are you able to tell me 18 when U.S. Steel began to produce benzene at 19 the Gary Works? 20 A. I -- I don't know. 21 Q. Does U.S. Steel continue to 22 operate the Gary Works plant? 23 A. The benzene plant? 24 Q. Gary Works in general. Then 25 I'll ask you about benzene. 30 1 JOHN MASAITIS 2 A. Gary Works is still operating, 3 yes. 4 Q. Is benzene still produced at 5 Gary Works? 6 A. I don't know. 7 Q. Okay. 8 A. I don't think so. I think they 9 just take it down to the light oil. That's 10 what I recall. I don't think they produce 11 benzene at Gary anymore. 12 Q. All right. Are you able to 13 recall when they stopped producing benzene at 14 Gary? 15 A. No. 16 Q. And Geneva Works was the third 17 location you gave me. Does U.S. Steel 18 continue to operate the Geneva Works plant? 19 A. To this day? 20 Q. Yes, sir. 21 A. No. 22 Q. Okay. Do you know when that 23 plant shut down? 24 A. Well, I think the plant is 25 still in operation, but U.S. Steel sold it 31 1 JOHN MASAITIS 2 years ago. 3 Q. I understand. Do you know when 4 U.S. Steel sold the Geneva Works plant? 5 A. It was sold while I was still 6 working. So it was, you know, maybe 20 years 7 ago. 8 MR. CAIRONE: And before you go 9 on, Andrew, I'll represent to you that 10 the BTX unit at Claritin was shut down 11 in '86, benzene, toluene and xylene. 12 And I'll be happy to provide you with 13 the background to support that 14 representation. 15 MR. DuPONT: Okay. 16 BY MR. DuPONT: 17 Q. Has U.S. Steel produced benzene 18 anywhere outside of the United States? 19 A. No, not to my knowledge. 20 Q. Has U.S. Steel sold benzene 21 outside of the United States? 22 A. Not to my knowledge. 23 Q. Has U.S. Steel ever had its own 24 occupational exposure limit or level for 25 benzene? 32 1 JOHN MASAITIS 2 A. No. 3 Q. Am I correct that U.S. Steel 4 has a medical department? 5 A. Yes. 6 Q. Does it also have a toxicology 7 department? 8 A. No. 9 Q. It has an industrial hygiene 10 department? 11 A. Yes. 12 Q. And it has a safety department? 13 A. Yes. 14 Q. Are you able to tell me when 15 U.S. Steel first had a medical department? 16 A. I would say the early 1900s. 17 Q. How about an industrial hygiene 18 department, when did U.S. Steel first have an 19 industrial hygiene department? 20 A. Well, the first professional 21 industrial hygienist was Ken Morris, and he 22 was hired around 1950, '51. 23 Q. Did U.S. Steel create an 24 industrial hygiene department when they hired 25 Mr. Morris? 33 1 JOHN MASAITIS 2 A. Yes. 3 Q. How about the safety department 4 in U.S. Steel, when was the safety department 5 first created? 6 A. I don't know. 7 Q. On average, since the 1950s to 8 the present time, how many industrial 9 hygienists has U.S. Steel employed? 10 A. Oh, I'd -- I would have to 11 speculate. It's increased through the years 12 substantially. I -- I wouldn't venture a 13 guess. 14 Q. I have, in your resume here 15 from another case, that you began to work at 16 United States Steel Corporation as an 17 industrial hygiene engineer in 1964, and that 18 you maintained that position until 1968. Is 19 that correct? 20 A. Yes. It could be correct, if 21 you're looking at my resume. 22 Q. Right. And I'll represent to 23 you that I am. And that's marked as Bates 24 Numbers USS Depo 2787 through 2790. If you'd 25 like to see it -- 34 1 JOHN MASAITIS 2 A. No, that's fine. 3 Q. -- I'll give that to you. 4 Then you went on to become the 5 industrial hygiene engineer from 1964 to 6 1968. 7 A. If that's what's on the resume, 8 yes. 9 Q. From 1978 to 1986, you were a 10 corporate assistant manager for the 11 industrial hygiene at United States Steel 12 Corporation? 13 A. Yes. 14 Q. When you were working as an 15 industrial hygienist from 1962 to 1964 -16 strike that. I apologize, I'm looking at the 17 wrong dates. 18 When you were working as an 19 industrial hygiene engineer for the United 20 States Steel Corporation from 1964 to 1968, 21 how many people were employed in the 22 industrial hygiene department? 23 A. '64 through '68, there were 24 about half a dozen. 25 Q. I take it there was a director 35 1 JOHN MASAITIS 2 of the industrial hygiene department at that 3 time. 4 A. Yes. 5 Q. Who was the director at that 6 time? 7 A. Ken Morris. 8 Q. How many people were employed 9 in the medical department during 1964 to 10 1968? 11 A. I don't know. 12 Q. Did you have interaction with 13 the medical department during that period of 14 time? 15 A. Yes. 16 Q. And what types of people would 17 you interact with in the medical -- medical 18 department? 19 A. The -- me personally, or the 20 industrial hygiene department? 21 Q. You personally. 22 A. When I would go to a facility, 23 I would periodically see the plant physician. 24 Q. What would you see the plant 25 physician for? 36 1 JOHN MASAITIS 2 A. Just since he was, you know, 3 the plant physician and we both were 4 occupational health professionals, and I may 5 stop in to see him. He may have requested 6 that -- the activity that I was visiting the 7 plant for. 8 Q. Was there a plant physician at 9 each one of U.S. Steel's plants? 10 A. The larger facilities, yes. 11 Q. When you say the larger 12 facilities, what do you mean? 13 A. Well, the integrated steel 14 plants, as opposed to smaller facilities, 15 where you didn't have a large population. 16 Q. How many of these larger 17 facilities were there that had a dedicated 18 industrial -- excuse me, occupational as a 19 position? 20 A. From '64 to '68? 21 Q. Yes, sir. 22 A. I -- it could take some time to 23 count them, but I would say approximately a 24 dozen. 25 Q. Who was the director of 37 1 JOHN MASAITIS 2 medicine for U.S. Steel in '64 to '68? 3 A. Dr. Bundy was a director, but 4 there was a doctor -- Vice President of 5 Health Services, I believe we called it then, 6 that oversaw the medical, safety and 7 industrial hygiene department. That was Dr. 8 O'Connor. 9 Q. Did the medical department at 10 that period in time, '64 to '68, have its own 11 building? 12 A. No. 13 Q. Did U.S. Steel have, at that 14 point in time, at its medical department any 15 kind of laboratory where it could conduct 16 medical experiments or testing? 17 A. No. 18 Q. Sorry. Were you finished? 19 A. No. There -- there were no 20 experiments or anything conducted. No 21 studies or anything like that. They may have 22 had a small laboratory that -- where they 23 would do some type of tests associated with 24 the annual physical examination of a worker 25 or something like that, but nothing 38 1 JOHN MASAITIS 2 elaborate. 3 Q. Okay. I've seen in records 4 that have been produced to us that U.S. Steel 5 would conduct pre-employment blood 6 examination, complete blood counts, and 7 conduct complete blood counts on its 8 employees throughout their employment. Would 9 that type of test, for example, be done 10 in-house? In other words, a physician for 11 U.S. Steel, or a nurse for U.S. Steel perhaps 12 would take a blood test and then there would 13 be a laboratory at U.S. Steel that processed 14 the actual test? 15 A. The industrial hygiene 16 laboratory would do some urine analysis, but 17 I don't recall that we ever did do blood 18 counts or anything like that. And the 19 medical department didn't do it, so it 20 possibly was done outside. 21 Q. After 1968, when you worked as 22 a senior industrial hygiene engineer from '68 23 to '78, did the industrial hygiene department 24 grow? Were there more employees during that 25 period of time? 39 1 JOHN MASAITIS 2 A. Yes. 3 Q. How many? 4 A. Possibly five. 5 Q. Are you able to tell me what 6 the size of the medical department at the 7 United States Steel Corporation was from '68 8 to '78? 9 A. No, I couldn't tell you. 10 Q. Sir, when did you first learn 11 that benzene causes cancer? 12 A. I would say that it was 13 probably the late seventies, early eighties. 14 About that time. 15 Q. Prior to the late seventies, 16 had you seen any information that associated 17 benzene exposure with cancer? 18 A. There was literature that would 19 -- there were some studies done that 20 associated it with cancer. Some 21 organizations were looking at it as a 22 suspected carcinogen prior to that. 23 Q. When is the earliest you saw 24 information associating benzene with cancer? 25 A. I can't recall the earliest 40 1 JOHN MASAITIS 2 date. It could have been in the 3 mid-seventies, the late seventies. 4 Q. When you worked -- I understand 5 you worked for the Commonwealth of 6 Pennsylvania as an industrial hygienist from 7 '62 to '64. Is that correct? 8 A. Yes. 9 Q. At that point in time, did you 10 have a -- were you aware that there was an 11 association between benzene exposure and 12 cancer? 13 A. No. 14 Q. Had you seen any information 15 during your employment with the Commonwealth 16 of Pennsylvania relating to the ability of 17 benzene to cause cancer? 18 A. Not that I recall. 19 Q. When you learned that benzene 20 was a suspected carcinogen, if I understand 21 you correctly, in the mid 1970s, what forms 22 of cancer were associated, that you learned, 23 with benzene at that time? 24 MR. CAIRONE: Andrew, when 25 you're saying you, just to be clear, 41 1 JOHN MASAITIS 2 are you asking him personally or as 3 the representative of U.S. Steel? 4 MR. DuPONT: I'm asking him 5 personally at this time. 6 MR. CAIRONE: Okay. 7 THE WITNESS: I would say 8 leukemia. 9 BY MR. DuPONT: 10 Q. Are you able to tell me now, as 11 we sit here today, what forms of cancer are 12 caused by exposure to benzene? 13 A. I'm, you know, not a medical 14 person. I just look at it very broadly as -15 as causing leukemia. 16 Q. Are you aware that benzene 17 causes damage to human chromosomes? 18 A. I'm not -- as I said, I'm not a 19 medical person. I don't get into that. I'm 20 not aware if benzene is associated with 21 chromosomes. 22 Q. In the course of your work with 23 United States Steel Corporation did you come 24 to learn that the United States Federal 25 Government said that there is no safe level 42 1 JOHN MASAITIS 2 of exposure to benzene? 3 A. No. 4 Q. Never seen any information from 5 the government to that effect? 6 A. No. I know that through the 7 years they have come out with proposals, and 8 the last was one part per million. 9 Q. And what -- what is your 10 understanding of what one part per million 11 represents? 12 A. That represents permissible 13 exposure level of an eight hour work period, 14 time-weighted average. 15 Q. As an industrial hygienist with 16 the United States Steel Corporation, you were 17 aware, were you not, that one could develop 18 leukemia from exposure to benzene at levels 19 less than one part per million as a 20 time-weighted average? 21 A. No. 22 Q. You've never seen any 23 information to that effect? 24 A. Not that I recall. 25 Q. As an industrial hygienist with 43 1 JOHN MASAITIS 2 U.S. Steel, you are aware that benzene could 3 be absorbed through human skin; is that 4 correct? 5 A. There is some absorption, I 6 understand. 7 Q. When did you first learn, you 8 personally learn as an industrial hygienist, 9 that benzene is absorbed through human skin 10 when benzene, the liquid, comes into contact 11 with the skin? 12 A. I can't recall. I'd have to 13 say that it was in the early years of my 14 industrial hygiene career. 15 Q. While you were working for the 16 Commonwealth of Pennsylvania? 17 A. Probably. 18 Q. Did you also come to learn that 19 vapors in the air, benzene vapors in the air, 20 can actually be absorbed through human skin? 21 A. If there is some absorption I 22 don't -- again, from an industrial hygiene 23 point of view, I don't know it would be 24 consequential. 25 Q. Let me see if I understand 44 1 JOHN MASAITIS 2 that. You were aware, as an industrial 3 hygienist working for U.S. Steel, that a 4 person can absorb benzene through their skin 5 by virtue of there being benzene vapors in 6 the air. 7 MR. CAIRONE: Objection, 8 leading. 9 BY MR. DuPONT: 10 Q. Is that correct? 11 A. No. No. No, what I said is 12 that there is some -- not benzene absorption 13 through skin. You know, of course if there 14 is a break in the skin you're going to get 15 more absorption. So it's dependent upon a 16 number of factors. So far as vapors in the 17 air, there may be an extremely small amount 18 of absorption. I wouldn't venture to guess, 19 but it's possible. But I don't think it's of 20 significance compared to the hazard 21 associated with inhalation of vapors. 22 Q. Let me ask it -- I just want to 23 see if I can understand you correctly. As an 24 industrial hygienist with U.S. Steel, you are 25 aware that benzene can be absorbed through 45 1 JOHN MASAITIS 2 the skin when the skin comes into contact 3 with air that has benzene vapors in it; is 4 that correct? Regardless of what quantity of 5 benzene is being absorbed, you are aware that 6 that could happen. 7 A. To my knowledge, we really 8 never considered the benzene vapors being 9 absorbed through the skin. I -- it would to 10 be of any consequence, it would have to be 11 extremely high concentrations. But here 12 again, the major concern would be associated 13 with inhaling the vapors into the lungs and 14 getting into the blood stream that way. More 15 so than the vapors themselves penetrating 16 intact skin. 17 Q. I don't want to talk to you 18 right now about the relative amount of 19 exposure that you get from the various routes 20 of exposure. I just want to know, yes or no, 21 were you aware, as an industrial hygienist 22 with U.S. Steel, that benzene can be absorbed 23 through human skin through contact with air 24 containing benzene vapors? 25 A. Not really, no. 46 1 JOHN MASAITIS 2 Q. Two of the chemicals that U.S. 3 Steel produced from light oil were toluene 4 and xylene; correct? 5 A. Yes. 6 Q. How much benzene was present in 7 the toluene that U.S. Steel produced in the 8 1970s? 9 A. I have no idea. 10 Q. Were you aware that benzene was 11 in toluene as it was produced by U.S. Steel? 12 A. I'm aware that there is a 13 residual amount of benzene in toluene and 14 xylene, yes. 15 Q. How much benzene is in xylene 16 and toluene? 17 MR. CAIRONE: Let me object. 18 It's not a subject designated for this 19 witness to testify on. It's not a 20 chemical involved in this case. And 21 so it's not relevant. And it's not a 22 subject that we have presented this 23 witness to testify for U.S. Steel. 24 BY MR. DuPONT: 25 Q. How much benzene was in toluene 47 1 JOHN MASAITIS 2 manufactured by U.S. Steel during the 1970s? 3 A. I have no idea. 4 Q. How much benzene was in xylene 5 manufactured by U.S. Steel in the 1970s? 6 MR. CAIRONE: Same objection. 7 THE WITNESS: No idea. 8 BY MR. DuPONT: 9 Q. During the 1970s did U.S. Steel 10 monitor its employees for exposure to benzene 11 when they were working with or around 12 toluene? 13 A. There could have been some 14 studies done. I can't recall a specific 15 study that was associated with monitoring for 16 benzene from toluene. 17 Q. Is that a -- was it a practice 18 of the industrial hygienist at U.S. Steel in 19 the 1970s to monitor employees handling 20 toluene or working around toluene? 21 MR. CAIRONE: Can we agree, 22 Andrew, so that I don't need to keep 23 repeating my objection, that my same 24 objection will apply to any question 25 you ask related to toluene or xylene? 48 1 JOHN MASAITIS 2 MR. DuPONT: Yes, you can have 3 that standing objection. 4 MR. CAIRONE: Okay. Fine. 5 THE WITNESS: And the question 6 again. 7 BY MR. DuPONT: 8 Q. Sure. My question is, was it 9 U.S. Steel's practice, or was it the practice 10 of U.S. Steel's industrial hygienists in the 11 company to monitor its employees for chemical 12 exposures when they worked with or around 13 toluene? 14 A. Well, from an industrial 15 hygiene standpoint, toluene had its own 16 permissible exposure level. So when we would 17 do an exposure evaluation regarding toluene, 18 typically the way it would be done is, we 19 would use the permissible exposure level for 20 toluene. But at the same time, we may take a 21 bulk sample of the toluene to see the -- if 22 there were any constituents in it, such as 23 benzene. 24 Q. Do you recall actually doing 25 that, taking bulk samples of toluene for 49 1 JOHN MASAITIS 2 benzene content? 3 A. Yes. 4 Q. Do you recall monitoring the 5 air, either personal air monitoring or area 6 monitoring, for toluene and people working 7 with toluene that gave benzene as a result of 8 air monitoring? 9 A. Unless they were working 10 specifically with toluene, it -- it was part 11 of the industrial hygiene practice to look 12 for benzene in toluene and xylene. So 13 depending upon the area you were at would 14 determine the type of monitoring that you 15 did. Meaning, was there a need to be 16 specific for toluene, was there a need to be 17 specific for benzene, was there a need to be 18 specific for xylene. 19 Q. Okay. But one of the things 20 U.S. Steel would do for employees working 21 with toluene would be to measure the air 22 around them to see whether or not that 23 reflected the presence of benzene as well; 24 correct? 25 MR. CAIRONE: Objection, 50 1 JOHN MASAITIS 2 leading. 3 THE WITNESS: No. No. We would 4 do a toluene exposure evaluation. But 5 here again, as part of that evaluation 6 we may take a bulk sample, if we have 7 reason to believe there could be a 8 significant amount of benzene in the 9 toluene as part of the evaluation. 10 BY MR. DuPONT: 11 Q. Are you familiar, or do you 12 know of any U.S. Steel or USS Chemicals 13 facility in Argo, Illinois? 14 A. No. 15 Q. I'll mark the next document as 16 Exhibit 2. 17 - - 18 (Whereupon the document was 19 marked, for identification purposes, 20 as Masaitis Exhibit Number Two.) 21 - - 22 BY MR. DuPONT: 23 Q. For the record, this is Bates 24 Number THAN 2209. 25 And, for the record, this is a 51 1 JOHN MASAITIS 2 document that was produced to us in the 3 course of discovery by TH Agriculture and 4 Nutrition. Are you familiar with this 5 document, this type of document? 6 A. I looked at some of these 7 documents that were in this book last week, 8 but I don't know if this specific one was in 9 there or not. 10 Q. Had you seen documents like 11 this during the course of your employment 12 with U.S. Steel? 13 A. Not in the course of my 14 employment, no. 15 Q. Okay. Towards the top of the 16 document, under the word shipped from -17 A. Yes. 18 Q. -- there is an indication of 19 Argo, Ill, which I presume is Illinois. 20 A. Right. 21 Q. You're not familiar with any 22 U.S. Steel facility that was in Argo, 23 Illinois? 24 A. No, I -- I never heard of a 25 facility located in Argo, Illinois. 52 1 JOHN MASAITIS 2 Q. Did U.S. Steel have any plants 3 in Chicago? 4 A. We had an integrated facility 5 in South Chicago, our South Works. 6 Q. When you say an integrated 7 facility, what do you mean by that? 8 A. I mean that they brought in raw 9 material, and from the raw materials they had 10 an integrated steel making process where they 11 manufactured steel products. 12 Q. Were there coke ovens at that 13 South Works in South Chicago? 14 A. Yes, I believe there were. 15 Yes. 16 Q. Was benzene produced there? 17 A. No. 18 Q. Was light oil produced there? 19 A. There was light oil, and all of 20 the by-product coke ovens, to my knowledge. 21 Q. I see a reference to a Chicago 22 plant at 14700 South Harvard Avenue. Is that 23 the address for South Works? 24 A. I can't recall. 25 Q. Sir, do you have any personal 53 1 JOHN MASAITIS 2 knowledge, or knowledge that you gathered, 3 outside the context of this litigation, 4 concerning Thompson-Hayward Chemical Company? 5 A. No. 6 Q. Have you ever heard of that 7 company before becoming involved with this 8 case? 9 A. No. 10 Q. What have you learned about 11 Thompson-Hayward Chemical Company since 12 becoming involved with this case? 13 A. I learned that we sold benzene 14 to Thompson-Hayward Chemical Company. 15 Q. Anything else? 16 A. I learned that Thompson-Hayward 17 made products for other companies. 18 Q. Anything else? 19 A. I understand that they were a 20 relatively large company. 21 Q. What is the basis for that 22 understanding? 23 A. The number of employees that 24 they had. The number of facilities that they 25 had. 54 1 JOHN MASAITIS 2 Q. Where did you gather that 3 information? 4 MR. CAIRONE: Well, let me just 5 make sure we don't cross any lines. 6 Part of the preparation of a corporate 7 representative is to prepare them for 8 the deposition. And so some of this 9 information came in the context of 10 what we provided to Mr. Masaitis. 11 You're free to ask him how he arrived 12 at it, as long as it doesn't involve 13 privileged communications. 14 BY MR. DuPONT: 15 Q. Okay. I don't want to know 16 what your lawyers told you. I want to know 17 what sources, document forms or other forms, 18 other than what your lawyers told you. What 19 source of information do you have, or have 20 you reviewed that allowed you to talk to me 21 about Thompson-Hayward Chemical Company? 22 A. Well, going through the 23 purchase orders, that they were purchasing 24 large amounts of benzene. So they had to be 25 a relatively large corporation, company, to 55 1 JOHN MASAITIS 2 purchase those amounts. 3 Q. Were the purchase orders, the 4 purchase records, the only documents that you 5 reviewed that gave you information regarding 6 the size of the Thompson-Hayward Chemical 7 Company? 8 A. Pretty much, yes. 9 Q. Any other information you have 10 about Thompson-Hayward Chemical Company would 11 have come from your lawyers, or U.S. Steel's 12 lawyers? 13 A. Pardon me? 14 Q. Any other information that you 15 would have regarding Thompson-Hayward 16 Chemical Company has come from U.S. Steel's 17 lawyers, in terms of communications you had 18 with them? 19 A. Yes. 20 Q. Your -- am I correct that your 21 first involvement with this case was -- was 22 when? When you received the materials last 23 week? 24 A. No. Mr. Sykes called me a 25 couple of months ago and asked if I would 56 1 JOHN MASAITIS 2 give the deposition. I've been trying to get 3 away from giving the depositions. Would much 4 rather be fishing or doing something else. 5 But anyway, that was my first involvement. 6 Because I told him that I didn't want to do 7 this anymore. He called and asked if I would 8 be the corporate representative and we talked 9 and I agreed to it. 10 Q. Okay. Prior to last week, did 11 you receive any documents pertaining to this 12 case? 13 A. No. 14 Q. Ronald Davis' case? 15 A. No. 16 Q. Do you have any knowledge as to 17 whether or not Thompson-Hayward Company -18 Chemical Company manufactured chemicals? 19 MR. CAIRONE: Object to form. 20 THE WITNESS: I guess it depends 21 upon what you mean by manufacture. I 22 would say that, yes, they probably 23 have, from my understanding. If 24 manufacturing is getting chemicals 25 together, a group of chemicals, to 57 1 JOHN MASAITIS 2 make a product from that, then I would 3 say yes. 4 BY MR. DuPONT: 5 Q. Let me ask you: Have you seen 6 any documents from U.S. Steel that would 7 indicate what U.S. Steel knew about 8 Thompson-Hayward Chemical Company during the 9 1960s and the 1970s? 10 A. I may have, I can't recall 11 specifically. I know that they were making 12 products for other companies. 13 Q. Well, you know that now. But I 14 want to ask you about what U.S. Steel knew 15 about Thompson-Hayward Chemical Company 16 during the 1960s and the 1970s. Do you have 17 any documents or any information to indicate 18 to you what U.S. Steel knew about 19 Thompson-Hayward Chemical Company, say, prior 20 to 1977? 21 A. I don't have any documents, or 22 I don't have any personal knowledge of what 23 they knew. And I don't know specifically 24 what other representatives of U.S. Steel knew 25 about that company. 58 1 JOHN MASAITIS 2 Q. Are you able to tell me that 3 representatives of U.S. Steel actually knew 4 anything about Thompson-Hayward Chemical 5 Company during and prior to 1977? 6 A. Well, I -- I would say that the 7 people who were dealing with them knew about 8 the company, yes. 9 Q. They knew that they sold them 10 benzene? 11 A. They knew they sold them 12 benzene. They had some idea as to what they 13 did, I'm sure, and the number of people that 14 they employed, their facilities, where they 15 were located. That sort of thing. 16 Q. Sir, I want to know what you 17 actually know, not what you might be guessing 18 those people knew. 19 A. I don't know what other people 20 knew regarding the company. 21 MR. DuPONT: Let's take a five 22 minute break. 23 VIDEO TECHNICIAN: The time is 24 10:53 a.m., this is the end of tape 25 number one. 59 1 JOHN MASAITIS 2 --3 (Whereupon there was a recess in 4 the proceeding.) 5 --6 VIDEO TECHNICIAN: The time is 7 11:01, this is the beginning of tape 8 number two. We're now back on the 9 record. 10 BY MR. DuPONT: 11 Q. Mr. Masaitis, during your 12 employment with U.S. Steel as an industrial 13 hygienist, did you ever perform exposure 14 assessments for workers? 15 A. Yes. 16 Q. Did those exposure assessments 17 include the chemical, benzene? 18 A. Yes. 19 Q. How would you go about 20 performing an exposure assessment as an 21 industrial hygienist for U.S. Steel? 22 A. Well, there were -- there were 23 different techniques you could utilize. 24 There was instrumentation available that 25 would give you a number that was comparable 60 1 JOHN MASAITIS 2 to the percentage of vapors in the air, but 3 was not specific to any vapor. There were 4 what we called the colormetric detector tubes 5 for different compounds. There was one for 6 benzene, toluene, xylene. You could use 7 that. Again, if you didn't want to be that 8 specific, or if you didn't need to be that 9 specific, then there were methods whereby you 10 could take a grab sample of the air and have 11 that analyzed by a laboratory instrument to 12 be more specific. Or you could take charcoal 13 tube samples that would absorb the vapors in 14 the air, and later analyzed by a laboratory 15 instrument, which was very specific. 16 Q. All right. Were there -17 strike that. 18 Let me ask you. When you 19 tested specifically for benzene, how did you 20 do that? 21 A. Well, pretty much used every 22 method I just mentioned. 23 Q. Did you also use urinary penal 24 analysis for benzene? 25 A. Well, I didn't. But there were 61 1 JOHN MASAITIS 2 samples of the urine of the workers exposed 3 to benzene that were taken. 4 Q. Was that done by industrial 5 hygienists at U.S. Steel? 6 A. No, that was the medical. 7 Q. Okay. And did U.S. Steel also 8 test blood of its workers to determine 9 whether or not they were being exposed to 10 benzene? 11 A. Yes. 12 Q. When did U.S. Steel begin to 13 use urinary penal analysis as one method of 14 determining how much exposure, and whether 15 the workers were having exposure to benzene? 16 A. I can't say. I don't know. 17 Q. Was that a practice used by 18 U.S. Steel before you began with the company? 19 A. I would say, yes. 20 Q. When did U.S. Steel begin to 21 use testing the blood of its workers to 22 determine whether or not they were being 23 exposed to benzene? 24 A. I can't say the exact date. It 25 was prior to me starting. 62 1 JOHN MASAITIS 2 Q. Was that something the company 3 did as far back as the 1920s? 4 A. I have no idea. 5 Q. Do you know if they did that in 6 the 1930s? 7 A. I -- I don't know. 8 Q. Did you ever perform exposure 9 assessments when you did not have actual air 10 monitoring data available? 11 A. Actually, exposure monitoring 12 is a determination of the amount of the 13 material in the workers' breathing zone that 14 you're interested in. So one would go hand 15 in hand. If you do an exposure assessment, 16 you do take samples. 17 Q. Okay. Well, I want to make 18 sure we're talking about the same thing. 19 Exposure monitoring would be either measuring 20 of the air or the blood or urine for some 21 indication that there is benzene present in 22 the air, or benzene that's been absorbed into 23 the human body; correct? 24 A. Yes. 25 Q. That -- would you call that -- 63 1 JOHN MASAITIS 2 as an industrial hygiene technique, would you 3 call that a quantitative exposure assessment? 4 A. I would -- if you do any type 5 of air monitoring, it's quantitative. Now, 6 how refined the quantitative analysis is is 7 something different. In other words, you 8 could take a sample for the total amount of 9 vapors that are combustible in the area, an 10 environment, or you could take a sample to 11 find out what specific vapors were present in 12 that environment. 13 Q. Now, can an industrial 14 hygienist perform an exposure assessment, 15 sometimes referred to as a qualitative 16 exposure assessment? Have you ever heard 17 that term before, qualitative exposure 18 assessment? 19 A. I know that there are some 20 people who will go out into an environment 21 and do a look-see and make a guesstimate, but 22 we did not do that. Any analysis of exposure 23 assessment that we did was based upon air 24 monitoring. 25 Q. If you didn't have air 64 1 JOHN MASAITIS 2 monitoring available, and there was some sort 3 of incident at U.S. Steel, somebody 4 complained that they became sick from 5 exposure and you didn't have air monitoring 6 available for that individual, or that area 7 of a particular plant, what would you do to 8 go back retrospectively and try to figure out 9 what happened? 10 MR. CAIRONE: Object to the 11 form. 12 THE WITNESS: We would -- in 13 either situation, we would be in there 14 doing air monitoring for the vapors or 15 whatever form of the contaminant 16 existed specifically for what was in 17 the environment. 18 BY MR. DuPONT: 19 Q. Were there ever situations 20 where someone at U.S. Steel became sick or 21 had some sort of reaction to exposure -- from 22 exposure to a chemical and brought that to 23 the attention of the medical department or 24 industrial hygiene department, and you were 25 called upon to determine what it was that 65 1 JOHN MASAITIS 2 happened to that individual? 3 A. There could have been. As I 4 sit here today, I can't recall any specific 5 incident. 6 Q. If you were called upon to 7 investigate that type of incident as an 8 industrial hygienist for U.S. Steel, and you 9 didn't have specific air monitoring data for 10 that person who was injured, or that area of 11 the plant where that person was injured, what 12 would you do in order to figure out what 13 happened to that individual? 14 A. We would go into the area and 15 get it. We would go into the area and do an 16 evaluation by taking samples that were 17 specific to the materials in the environment 18 that he was working in. 19 Q. Are you able to tell me what 20 specifically -- strike that. 21 Do you have any knowledge of 22 what information, if anything, U.S. Steel 23 provided to Thompson-Hayward Chemical Company 24 regarding benzene prior to 1977, or during 25 that year? 66 1 JOHN MASAITIS 2 A. I know that there were material 3 safety -- there was a Material Safety Data 4 Sheet that I saw. I believe it was dated 5 '72. 6 Q. Okay. And is that information 7 that you received in the context of this 8 litigation? 9 A. Yes. 10 Q. As part of the book -- the 11 binder that you were looking at earlier 12 today; correct? 13 A. Correct. 14 Q. Independent from the material 15 that you received in the context of this 16 case, do you have any knowledge of what 17 documents or information U.S. Steel provided 18 to Thompson-Hayward Chemical Company, if any, 19 during or prior to 1977? 20 A. I personally have no knowledge. 21 Q. Besides seeing the Material 22 Safety Data Sheet in the documents that you 23 brought with you today, the documents that 24 you reviewed for your deposition and provided 25 to you by U.S. Steel, do you have any other 67 1 JOHN MASAITIS 2 documents that indicate what information, if 3 any, was provided to Thompson-Hayward 4 Chemical Company, during or prior to 1977, 5 concerning benzene? 6 A. No. 7 --8 (Whereupon the document was 9 marked, for identification purposes, 10 as Masaitis Exhibit Number 3.) 11 - - 12 BY MR. DuPONT: 13 Q. I'm going to hand you what I've 14 marked as Masaitis 3, and it was previously 15 marked as Carter 3. And ask you, is that the 16 Material Safety Data Sheet that you were 17 referring to? 18 A. (Reviewing document.) 19 Yes. 20 Q. Sir, can you confirm for me 21 that this Material Safety Data Sheet does not 22 contain any warning concerning benzene 23 actually potentially causing cancer? 24 A. There are no warning signs on 25 this Material Safety Data Sheet of benzene 68 1 JOHN MASAITIS 2 causing cancer. 3 Q. There are also no warnings on 4 this Material Safety Data Sheet that benzene 5 can cause damage to the human bone marrow and 6 blood, are there? 7 A. There are references on the 8 Material Safety Data Sheet to the MCA Safety 9 Data Sheet regarding different health hazards 10 and other aspects of information that are put 11 on Material Safety Data Sheets. 12 Q. Sir, my question is, yes or no, 13 does this Material Safety Data Sheet that you 14 have in front of you, that's been marked as 15 Exhibit 3, inform the reader, based on the 16 information that's in this Material Safety 17 Data Sheet, that benzene can cause damage to 18 the blood and bone marrow in human beings? 19 MR. CAIRONE: I'm going to 20 object. I think he tried to answer 21 that question. You can answer it 22 again. 23 THE WITNESS: The Material 24 Safety Data Sheet doesn't have any 25 language specifically addressing 69 1 JOHN MASAITIS 2 cancer. However, there are references 3 to another Material Safety Data Sheet 4 published by the Manufacturers 5 Chemical Association that talks about 6 health hazards and other information 7 that's put on Material Safety Data 8 Sheets. 9 MR. DuPONT: Objection, I'm 10 going to move to strike your response 11 because it did not answer my question. 12 BY MR. DuPONT: 13 Q. My question, which can be 14 answered by a yes or no, am I correct, that 15 this Material Safety Data Sheet that you have 16 in front of you as Exhibit 3 does not contain 17 any warning or any information that benzene 18 can cause damage to human bone marrow in a 19 human being? 20 MR. CAIRONE: Objection, asked 21 and answered. Are you asking him 22 excluding the reference that he's 23 answered twice? 24 MR. DuPONT: I'm asking him 25 whether those warnings appear anywhere 70 1 JOHN MASAITIS 2 on this Material Safety Data Sheet 3 itself. 4 THE WITNESS: I have -- I'll 5 answer the question the same way as I 6 did before, because there is no 7 reference to it, but it -- cancer, the 8 word cancer doesn't appear. However, 9 there are references to health hazards 10 on the Material Safety Data Sheet and 11 other information that is specifically 12 put on Material Safety Data Sheets. 13 BY MR. DuPONT: 14 Q. Sir, do you see the words blood 15 or bone marrow on this Material Safety Data 16 Sheet? 17 A. No, I don't see it on this 18 Material Safety Data Sheet. But that's not 19 to say that it's not on the material 20 referenced in this Material Safety Data 21 Sheet. 22 MR. DuPONT: I move to strike 23 anything after, I don't see it on this 24 Material Safety Data Sheet. 25 BY MR. DuPONT: 71 1 JOHN MASAITIS 2 Q. If the only thing an individual 3 has in front of them, a worker has in front 4 of them, is this Material Safety Data Sheet 5 I've marked as Exhibit 3, do they receive any 6 warning that benzene exposure can cause 7 damage to human blood or bone marrow? 8 A. They would -- if they were 9 interested, they would reference what is 10 referenced on the -11 MR. DuPONT: Objection. 12 MR. CAIRONE: Mr. Masaitis, 13 just answer his question. Can you 14 repeat it, Andrew? 15 MR. DuPONT: Sure. 16 BY MR. DuPONT: 17 Q. Sir, my question is, if the 18 only information an individual or a worker or 19 a company had in front of them was this 20 Material Safety Data Sheet that's marked as 21 Exhibit 3, would they receive any warning 22 that benzene can cause damage to human blood 23 or bone marrow? 24 A. Looking at the Material Safety 25 Data Sheet, the words are not spelled out. 72 1 JOHN MASAITIS 2 But they are spelled out in the material 3 that's referenced in the Material Safety Data 4 Sheet. 5 Q. Sir, I'm not asking you at this 6 point in time about any material referenced 7 in the Material Safety Data Sheet. Okay? My 8 question to you -- I move to strike your last 9 response. I need you to tell me, as a 10 representative of U.S. Steel here today, that 11 if the only information an individual had in 12 front of them concerning U.S. Steel's benzene 13 was this Material Safety Data Sheet, would 14 that individual receive a warning that 15 benzene exposure can cause damage to the 16 blood and bone marrow in a human body? 17 A. If they were just looking at 18 this Material Safety Data Sheet and they 19 didn't go to the references on the Material 20 Safety Data Sheet, they would not. 21 Q. And am I also correct that if 22 the only information an individual had in 23 front of them was this Material Safety Data 24 Sheet, they would not be warned that it's 25 necessary to use respiratory protection when 73 1 JOHN MASAITIS 2 working with benzene from U.S. Steel? 3 MR. CAIRONE: Object to the 4 form because your characterization of 5 information excludes the reference. 6 But -- so if you're asking whether if 7 they only look at this piece of paper, 8 then I think that's a legitimate 9 question. 10 MR. DuPONT: I think the 11 legitimate objection is objection to 12 form and the rest is -13 MR. CAIRONE: Well, if I don't 14 tell you what's wrong with the form -15 MR. DuPONT: No, you say form 16 and then it's up to me to correct it. 17 MR. CAIRONE: All right. 18 MR. DuPONT: Anything other than 19 that is an improper objection. 20 MR. CAIRONE: I disagree, but 21 we'll do it that way. 22 THE WITNESS: Your question was? 23 BY MR. DuPONT: 24 Q. Yes, sir. My question was, if 25 the only information an individual had in 74 1 JOHN MASAITIS 2 front of them regarding U.S. Steel's benzene 3 was this Material Safety Data Sheet, would 4 that individual be warned that he needed to 5 wear respiratory protection or ask for a 6 respirator when working with benzene? 7 MR. CAIRONE: Objection, form. 8 THE WITNESS: Well, you really 9 don't have to wear respiratory 10 protection when you're working with 11 benzene. It depends upon the benzene 12 concentration that the individual is 13 subjected to to determine the amount 14 or the type of respiratory protection 15 that would be needed. 16 BY MR. DuPONT: 17 Q. Sir, the purpose of this 18 exercise is for me to ask you a question and 19 you to answer the question that I'm asking. 20 A. Yes. 21 Q. And I don't mean to sound 22 contrite, and I apologize if I do, but you're 23 not answering my questions. Okay. I'm going 24 to move to strike your last response. 25 My question to you, sir -- and 75 1 JOHN MASAITIS 2 the answer is yes or no. 3 If the only individual (sic) 4 that a person had in front of them was this 5 Material Safety Data Sheet, would that 6 individual be warned that they need to wear a 7 respirator, a mask or other respiratory 8 protection when working with U.S. Steel's 9 benzene? 10 MR. CAIRONE: Object to form. 11 THE WITNESS: My answer is the 12 same. The industrial hygiene answer 13 is that you do not have to wear a 14 respirator when you're working with 15 benzene. It's not necessary. What 16 determines when you have to wear 17 respiratory protection is the exposure 18 to the vapors from the benzene that 19 you're working with. 20 BY MR. DuPONT: 21 Q. Sir, I'm not asking you what 22 you opinion is, I'm asking you what this 23 Material Safety Data Sheet says and what it 24 does not say. 25 A. That's -- that's my answer. 76 1 JOHN MASAITIS 2 I'm -- I can't change that answer as a 3 professional industrial hygienist. I can't 4 sit here and say that everybody that works 5 with benzene at all times has to wear a 6 respirator. 7 MR. CAIRONE: Mr. Masaitis, let 8 me see if we can get on track because 9 I think that that is a different 10 issue. If you listen to Mr. DuPont's 11 question carefully, and I think he 12 phrased it the last time as saying, 13 does it say it on this piece of paper 14 or not. Am I right, Andrew. 15 MR. DuPONT: I'll repeat my 16 question. 17 BY MR. DuPONT: 18 Q. If the only information that an 19 individual received regarding U.S. Steel's 20 benzene is this Material Safety Data Sheet, 21 would that person be warned that they need to 22 wear respiratory protection when working with 23 benzene? 24 MR. CAIRONE: Object to form. 25 THE WITNESS: I can't agree that 77 1 JOHN MASAITIS 2 a Material Safety Data Sheet has to 3 say that a person working with benzene 4 needs to wear a respirator because 5 they don't, unless their 6 concentrations of exposure to the 7 benzene are excessive. 8 BY MR. DuPONT: 9 Q. Sir, I'm not asking you to 10 agree with me. I'm just asking you to tell 11 me whether or not this Material Safety Data 12 Sheet provides the user with a warning that 13 they need to wear material -- respiratory 14 protection when working with benzene. 15 A. When working with benzene that 16 exceeds a permissible exposure level. 17 Q. Sir, I'm not placing that 18 qualification on the question. Okay. If you 19 have an answer that you want to give that's 20 being an advocate for the company, I'm not 21 interested in that today. I just want to 22 know the answer to my question. 23 MR. CAIRONE: Okay. I think you 24 need to stop arguing with the witness. 25 I think there is a legitimate 78 1 JOHN MASAITIS 2 misunderstanding here. And I think 3 that the way you framed your question 4 has led the witness to a point that 5 he's having difficulty answering. 6 Maybe if we went off the record we 7 could straighten it out. If you don't 8 want to, we can continue to go in 9 circles. But it's your deposition. 10 BY MR. DuPONT: 11 Q. If I had this Material Safety 12 Data Sheet in front of me for U.S. Steel 13 benzene and nothing else, would I be warned 14 that I need to wear respiratory protection 15 under any circumstances? 16 MR. CAIRONE: The document 17 speaks for itself. You can answer. 18 THE WITNESS: Under -- you 19 wouldn't be warned of the need to wear 20 respiratory protection if your 21 exposures were excessive. 22 BY MR. DuPONT: 23 Q. All right. Would I be warned 24 that I would need to wear material -- strike 25 that. 79 1 JOHN MASAITIS 2 If this Material Safety Data 3 Sheet was the only information I had in front 4 of me, would I be warned that I need to wear 5 a respirator under any circumstances when 6 working with U.S. Steel's benzene? 7 A. You would be warned if there 8 was some necessity to wear a respirator. 9 Q. Okay. Show me on this Material 10 Safety Data Sheet where it says wear a 11 respirator under these circumstances? 12 A. There is -- there is no section 13 on this Material Safety Data Sheet that says 14 that. There are references to the MCA 15 Material Safety Data Sheet that talks about 16 respiratory protection. 17 Q. All right. We're talking for 18 the moment about this Material Safety Data 19 Sheet that we have in front of us. Is your 20 answer that there is no information on this 21 Material Safety Data Sheet that advises the 22 user under which circumstance they should 23 wear respiratory protection when working with 24 benzene? 25 A. Without referring to the -- the 80 1 JOHN MASAITIS 2 manufactured chemicals Material Safety Data 3 Sheet, no. 4 Q. Okay. In fact, if you look 5 under Section Eight of the Material Safety 6 Data Sheet, on the second page of the 7 document, there is a category that says, 8 respiratory protection, specified type, and 9 no information is provided in that category. 10 Is that correct? 11 A. That's correct. 12 Q. Sir, if I could turn your 13 attention back to Exhibit 3. I believe you 14 told me, and correct me if I'm wrong, that 15 this Material Safety Data Sheet was dated 16 1972. Did I hear your correctly? 17 A. I did mention 1972. I think 18 that -- looking at the information in the 19 upper lefthand corner, it talks about the 20 approval expires April 30, 1971. So we're 21 saying it was after '71, so I'm saying '72. 22 Q. So why are you saying 1972? 23 A. I may have seen some 24 correspondence that went out with this. I 25 can't recall specifically, but I think that 81 1 JOHN MASAITIS 2 it was thereabouts that it went out. 3 Q. Can you point to any 4 correspondence that you had that went out 5 with this Material Safety Data Sheet to 6 Thompson-Hayward Chemical Company? 7 And I'm asking because I don't 8 recall seeing that. If you have it, I'd like 9 to see it. 10 A. Yes. January, 1972. 11 Q. Is that correspondence to 12 Thompson-Hayward Chemical Company, or is this 13 a general document that U.S. Steel produces 14 in every benzene case? 15 A. It's not a document that's 16 produced in every benzene case. What it is 17 is a Material Safety Data Sheet that was sent 18 to our customers along with a cover letter, 19 dated January 1972. 20 Q. Okay. My question to you, is 21 that January 1972 cover letter a form cover 22 letter that U.S. Steel has in its records, or 23 is that a cover letter that U.S. Steel knows 24 actually went to Thompson-Hayward Chemical 25 Company? Is there any indication in the 82 1 JOHN MASAITIS 2 records that that cover letter went to 3 Thompson-Hayward Chemical Company? 4 A. No, but there's indication on 5 the Material Safety Data Sheet that the 6 Material Safety Data Sheet went to 7 Thompson-Hayward Chemical Company. And I 8 believe that in the search that the Material 9 Safety Data Sheet was found with this letter. 10 Q. Okay. I don't believe it was. 11 So what I'm trying to learn is, does U.S. 12 Steel -- and maybe your counsel can clarify 13 this, but does U.S. Steel have any cover 14 letter that accompanied the actual Material 15 Safety Data Sheet that was marked as 16 Exhibit 3? 17 MR. CAIRONE: Can we go off the 18 record a second. 19 VIDEO TECHNICIAN: The time is 20 11:28, we're now off the record. 21 - - 22 (Discussion held off the 23 record.) 24 - - 25 VIDEO TECHNICIAN: The time is 83 1 JOHN MASAITIS 2 11:29, we're now back on the record. 3 BY MR. DuPONT: 4 Q. Let me see if I can clarify 5 this based on what your counsel has just told 6 me. 7 U.S. Steel does not have a 8 cover letter that accompanied Exhibit 3 9 specifically going to Thompson-Hayward 10 Chemical Company. 11 A. We don't -12 Q. Is that correct? 13 A. We don't have a form letter 14 with Thompson Hayward's name on the letter, 15 that's correct. 16 Q. And this Material Safety Data 17 Sheet, if I understand you correctly, that 18 we've marked as Exhibit 3, which is Bates 19 Number HD 649 to 650, is the same form of the 20 Material Safety Data Sheet that's attached to 21 the cover letter dated January, 1972 that you 22 directed me to. 23 A. Yes. 24 Q. Correct? 25 A. Yes. 84 1 JOHN MASAITIS 2 Q. That January 1972 letter is 3 Bates Number USS 02617A; correct? 4 A. Yes. 5 Q. Let's go ahead, if we can. Can 6 you take out that cover letter and allow me 7 to mark that -- well, I can't do that, 8 because I've already marked the next one in 9 sequence, and it actually goes along with 10 that. So I'll just hand that to you. 11 - - 12 (Whereupon the document was 13 marked, for identification purposes, 14 as Masaitis Exhibit Number 4.) 15 - - 16 BY MR. DuPONT: 17 Q. The first page of Exhibit 4, 18 is a form cover letter dated January, 1972. 19 A. Is there a question pending? 20 Q. Yes, is that the same document 21 that you pointed out to me in your binder of 22 information? 23 A. Yes. 24 Q. What that document is, if I 25 understand it, is a form cover letter dated 85 1 JOHN MASAITIS 2 January, 1972 that you indicated would 3 accompany U.S. -- USS Chemicals' benzene 4 Material Safety Data Sheets; right? 5 A. Yes. 6 Q. All right. So at some point in 7 time, after 1971, the Material Safety Data 8 Sheet that's marked as Exhibit 3 would have 9 been sent, but we can't say at what point in 10 time after 1971. Is that correct? 11 A. Yes. 12 Q. Looking at the cover letter 13 that is marked as Exhibit 4, USS 2617A, does 14 that cover letter contain any warnings 15 information concerning benzene? 16 A. No. 17 Q. Other than Material Safety Data 18 Sheets for benzene during the 1970s, let's 19 say from 1970 to 1977, what types of 20 documents did U.S. Steel use, if any, to 21 convey warnings information concerning 22 benzene? 23 A. For purposes of? 24 Q. To convey warnings information 25 to U.S. Steel's customers that were buying 86 1 JOHN MASAITIS 2 benzene from it? 3 A. I'm not aware of any other form 4 of this. There may have been other 5 information, but I'm not aware of it. 6 --7 (Whereupon the document was 8 marked, for identification purposes, 9 as Masaitis Exhibit Number 5.) 10 - - 11 BY MR. DuPONT: 12 Q. I'm going to hand you what's 13 been marked as Exhibit 5. And that, for the 14 record, is Bates Number USS 5889 to 5891. 15 Can you identify for the record what this 16 document is? 17 A. It's a cover letter dated 18 September 1979, conveying a Material Safety 19 Data Sheet for benzene. 20 Q. And is the Material Safety Data 21 Sheet for benzene also attached to it? 22 A. Yes. 23 Q. Does this Material Safety Data 24 Sheet we've marked as Exhibit 5 convey any 25 warning that benzene can cause cancer? 87 1 JOHN MASAITIS 2 A. No. 3 Q. Does this Material Safety Data 4 Sheet that we've marked as Exhibit 5 convey 5 any warning that benzene can cause damage to 6 the human blood and bone marrow? 7 A. No. 8 Q. Now, this Material Safety Data 9 Sheet does contain information regarding 10 respiratory protection; correct? 11 A. Yes, it does. 12 Q. And that's under section nine, 13 special precautions? 14 A. Yes. 15 Q. Why did U.S. Steel decide to 16 put respiratory information on the Material 17 Safety Data Sheet itself beginning in 1979? 18 A. I didn't prepare the Material 19 Safety Data Sheets. I do not know why it's 20 on this Material Safety Data Sheet. I mean, 21 it's something that should be on the Material 22 Safety Data Sheet. 23 Q. This 1979 Material Safety Data 24 Sheet was prepared after OSHA implemented the 25 emergency temporary standard for benzene. Is 88 1 JOHN MASAITIS 2 that correct? 3 A. I believe so. 4 Q. What's your understanding of 5 what the emergency temporary standard for 6 benzene was? 7 A. In what regard? 8 Q. Why -- are you familiar -9 you're familiar with the emergency temporary 10 standard for benzene; correct? 11 A. I'm aware of that there was an 12 emergency temporary standard came out, yes. 13 Q. That came out in 1977? 14 A. I believe it was '77. 15 Q. And at that point in time, OSHA 16 reduced the permissible exposure levels for 17 benzene from 10 parts per million on an eight 18 hour time-weighted average to one part per 19 million. Am I correct? 20 A. Yes. 21 Q. And that was a result of OSHA 22 receiving information confirming, through 23 epidemiological studies, that benzene causes 24 leukemia? 25 A. They had accumulated some 89 1 JOHN MASAITIS 2 studies that talked about leukemia. 3 Q. Do you know why U.S. Steel did 4 not warn, in its Material Safety Data Sheet 5 dated 1979, that benzene causes cancer? 6 A. I don't know that when this 7 Material Safety Data Sheet was prepared, that 8 it was widely accepted by the occupational 9 health community that indeed these studies 10 that OSHA was referencing were correct. At 11 least I don't know if the scientific and the 12 medical community was subscribing to what was 13 being said regarding the carcinogenicity of 14 benzene at that time. 15 Q. OSHA was the federal agency 16 that regulated workplace safety and health; 17 correct? 18 A. Yes. 19 Q. And as of 1977, the federal 20 government, the agency responsible for 21 protecting workers, said benzene causes 22 cancer definitively. 23 MR. CAIRONE: Is that a 24 question? 25 BY MR. DuPONT: 90 1 JOHN MASAITIS 2 Q. Can you tell me why it is U.S. 3 Steel did not follow the direction of the 4 United States Government to provide a warning 5 concerning benzene causing cancer on this 6 Material Safety Data Sheet? 7 MR. CAIRONE: Object to the 8 form. You asked him before why, and 9 he answered it, so it's also asked and 10 answered. 11 THE WITNESS: I would say that 12 at that time, the majority of the 13 occupational health community's 14 scientific and medical people were not 15 convinced that indeed there was 16 sufficient evidence to warrant it as a 17 carcinogen. 18 BY MR. DuPONT: 19 Q. What was your involvement 20 during the late 1970s of studying the 21 literature of benzene's health effects on 22 human beings? 23 A. My personal -24 Q. Yes. 25 A. -- knowledge? 91 1 JOHN MASAITIS 2 Q. I wasn't reviewing studies, but 3 I certainly was in contact with other 4 occupational health professionals. And at 5 that time there was a discussion, that I 6 recall, regarding that. Specific people, 7 specific discussion, I can't state. 8 --9 (Whereupon the document was 10 marked, for identification purposes, 11 as Masaitis Exhibit Number 6.) 12 - - 13 BY MR. DuPONT: 14 Q. The next document is marked as 15 Exhibit Six. The next Bates Number, USS 16 2519. Can you identify for us what this 17 document is? 18 A. It's a document regarding the 19 bulk shipment of benzene. 20 Q. When you say the bulk shipment 21 of benzene, what do you mean? 22 A. It talks about shipping papers, 23 placarding, tagging requirements and shipping 24 container required. 25 Q. Is this a document that would 92 1 JOHN MASAITIS 2 actually accompany shipments of benzene, or 3 is this a document that sets forth U.S. 4 Steel's practices regarding what types of 5 documentation would accompany shipments of 6 benzene? I'm just trying to learn more about 7 what it is. 8 A. Other than going through it 9 and, you know, trying to come up with an 10 answer to that question, I can't say 11 specifically how it was used at this time. 12 Q. This document is dated 13 April 29, 1974; is that correct? 14 A. Yes. 15 Q. It says, non-ferrous traffic. 16 What does that mean to you? 17 A. Non-ferrous, meaning not iron 18 related. 19 Q. Do you have any knowledge, 20 based on your understanding of the company's 21 procedures, or your work at U.S. Steel, as to 22 whether or not this specific document, or 23 this type of document would actually 24 accompany shipments? 25 A. I -- I can't say specifically 93 1 JOHN MASAITIS 2 that it accompanied a shipment, other than 3 going through the document and it talks about 4 the following description shall appear in the 5 bill of lading and any other shipping papers 6 accompanying shipments. It talks about the 7 shipping papers, the placarding of the -- the 8 vessel that was used to transport the 9 material and tagging requirements and the 10 requirements of the container itself. 11 Q. Okay. All right. So let's go 12 through that. Roman Numeral one, shipping 13 paper at the top of the document. Do you see 14 that? 15 A. Yes. 16 Q. Is says, "The following 17 description shall appear on the bill of 18 lading." Correct? 19 A. Yes. 20 Q. A bill of lading is a piece of 21 paper that accompanies the shipment of a 22 material to say what the material is, what 23 the cost of the material is and what the 24 quantity of the material being shipped is. 25 Generally, that's what it is? 94 1 JOHN MASAITIS 2 A. Yes. 3 Q. So what this document we're 4 looking at as Number Exhibit 6 is, it tells 5 us that the language past the colon that's in 6 that sentence is what would appear on the 7 actual bill of lading? The language that 8 starts with, in parentheses, benzol, 9 flammable liquid, note, in the event of an 10 emergency concerning the chemicals in the 11 shipment call toll free 800-424-9300 day or 12 night, that's the language that would appear 13 in the bill of lading. 14 A. Yes. 15 Q. Then it says, "Note, in 16 addition to the above, the following 17 clarification must be displayed." And then 18 there is language in quotations. 19 A. Yes. 20 Q. So that language in quotations 21 would also be conveyed on the bill of lading 22 for benzene, for example? 23 A. I would say yes. 24 Q. The next section discusses the 25 placarding requirements for Roman Numeral 95 1 JOHN MASAITIS 2 Number II? 3 A. Yes. 4 Q. Talking about -- when they say 5 placarding requirements, what do they mean by 6 a placard? 7 A. Putting a placard, a tag, or, 8 you know, something on the vessel identifying 9 it. 10 Q. Okay. That vessel could be a 11 rail car, it could be a tanker truck, it 12 could be a barge? 13 A. Yes. 14 Q. The third section addresses 15 tagging requirements. Where are the tags 16 placed that are referred to here? 17 A. Where are they placed? 18 Q. Correct. 19 A. There is a holder on the vessel 20 itself to put the tag on. 21 Q. And the next section discusses 22 shipping container required. My question, 23 sir, is, looking at this document, does this 24 tell you that any warning is placed on any of 25 the shipping papers or placards or tags or 96 1 JOHN MASAITIS 2 shipping containers of benzene regarding any 3 cancer hazard associated with benzene 4 exposure? 5 A. The -- this describes how to 6 comply with the, I guess, it would be the 7 Interstate Commerce Commission Shipping 8 Requirements, and I think the language is 9 very specific as to what they had to put on 10 the devices that were conveying the 11 information. There is nothing on here that 12 says cancer hazard. But it is compliant, as 13 I understand, with the ICC regulations on 14 what should be placarded and put in the 15 container and the tags. 16 Q. Okay. To your knowledge, as of 17 1974 and before then, any of those 18 regulations of this document pertains to, 19 require the shipper or otherwise -- strike 20 that. 21 Do you have any knowledge as to 22 whether any of the shipping papers, placards, 23 tags or shipping containers used to transport 24 benzene by U.S. Steel, as of 1974 or before, 25 contained any cancer warning? 97 1 JOHN MASAITIS 2 A. Not to my knowledge. 3 Q. Do you know whether any of 4 those materials contain any warning regarding 5 the use of respiratory protection? 6 A. Not to my knowledge, no. 7 Q. Do you know whether any of 8 those materials contained any warnings 9 regarding benzene being able to cause damage 10 to the blood and bone marrow of humans? 11 A. I don't -- not to my knowledge, 12 no. 13 Q. Do you know whether any of 14 those warnings appeared on shipping papers, 15 placards, tags or shipping containers through 16 1978? 17 A. Not 1974. I don't think so, 18 no. 19 Q. I'm sorry, I'll keep my voice 20 up. And I wanted to ask you until the time 21 point of 1978 because we have been discussing 22 including and prior to 1974. 23 At any point in time up through 24 and including 1978, were there any benzene 25 warnings -- strike that. 98 1 JOHN MASAITIS 2 At any point in time up until 3 and including 1978, did any cancer warnings 4 appear on shipping papers, placards, tags or 5 shipping containers used by U.S. Steel to 6 ship benzene? 7 A. Not to my knowledge. 8 Q. Same question regarding 9 warnings that benzene can cause damage to the 10 blood and bone marrow of humans. 11 A. Not on the shipping labels, no. 12 Q. Same question as to the need 13 for using respiratory protection of benzene. 14 A. Not to my knowledge. 15 MR. DuPONT: Mark the next 16 document as Exhibit 7. 17 - - 18 (Whereupon the document was 19 marked, for identification purposes, 20 as Masaitis Exhibit Number 7.) 21 - - 22 BY MR. DuPONT: 23 Q. And I'd just like to confirm 24 with you that this is an updated version of 25 the product shipping data sheet that we were 99 1 JOHN MASAITIS 2 looking at that was marked as Exhibit 6, this 3 one being dated April 1 of 1976. 4 A. It appears to be as you've 5 described. 6 Q. This, for the record, is Bates 7 Number USS 2520 to 2521. 8 I'm going to go out of order 9 here, so I apologize. The next document is 10 Exhibit Number 9. 11 - - 12 (Whereupon the document was 13 marked, for identification purposes, 14 as Exhibit Number 9.) 15 - - 16 BY MR. DuPONT: 17 Q. Is that the April 1, 1978 18 version of the product shipping data sheet 19 that we discussed at Exhibit Number 6 and 20 Exhibit Number 7? 21 A. It appears to be. 22 Q. I'll hand you the exhibit I 23 skipped, which is Exhibit Number 8. That's 24 USS 1246. 25 - - - 100 1 JOHN MASAITIS 2 (Whereupon the document was 3 marked, for identification purposes, 4 as Masaitis Exhibit Number 8.) 5 --6 BY MR. DuPONT: 7 Q. Sir, can you tell me what kind 8 of document this is? 9 A. It's a document regarding 10 benzene. 11 Q. Do you know how this document 12 was used? Strike that. 13 Had you seen a document like 14 this in your employment with U.S. Steel? 15 A. Not that I recall. 16 Q. Do you have any knowledge as to 17 how this document was used? 18 A. No. 19 Q. Do you know whether this 20 depicts any language that was used on the 21 labels or shipping materials or anything of 22 that nature? 23 A. Other than the fact that it 24 says, keep container closed. I don't know 25 how it was used. 101 1 JOHN MASAITIS 2 Q. Okay. And we can agree that 3 looking at this document, however it was 4 used, conveys no cancer warning associated 5 with benzene? 6 A. There is no cancer warning on 7 this document. 8 Q. It also doesn't warn the reader 9 that benzene can cause damage to the blood 10 and bone marrow. 11 A. It does not. 12 Q. It also does not warn the 13 reader that the reader must wear a respirator 14 or mask or other respiratory protection when 15 working with benzene or around benzene under 16 any circumstances? 17 A. It doesn't discuss respiratory 18 protection usage. 19 Q. The next exhibit I'll mark is 20 Exhibit 10. 21 - - 22 (Whereupon the document was 23 marked, for identification purposes, 24 as Masaitis Exhibit Number 10.) 25 BY MR. DuPONT: 102 1 JOHN MASAITIS 2 Q. And that's Bates Number 296 to 3 297. 4 Can you tell us what this 5 document depicts? 6 A. Looks like copies of tags 7 regarding benzene. 8 Q. How would these tags be used by 9 U.S. Steel? 10 A. They could have been shipping 11 tags. 12 Q. What would they be attached to? 13 A. It would be attached to the 14 shipping vessels, possibly at the dome. 15 Q. So it could be on a truck tank, 16 it could be on a rail car, it could be on a 17 barge? 18 A. Yes. 19 Q. Could it be on a 55 gallon 20 drum? 21 A. No. 22 Q. Okay. In reference to the 23 documents that are marked as Exhibits 4 24 through 9, is it your understanding that 25 these are all documents that came from U.S. 103 1 JOHN MASAITIS 2 Steel's records, documents that were 3 maintained in the regular course of business 4 by U.S. Steel? 5 A. I believe so. 6 Q. The next exhibit is Exhibit 11. 7 --8 (Whereupon the document was 9 marked, for identification purposes, 10 as Masaitis Exhibit Number 11.) 11 - - 12 BY MR. DuPONT: 13 Q. Can you identify what this 14 document is? 15 A. It's the Chemical Safety Data 16 Sheet published by the Manufacturers Chemists 17 Association in 1960. 18 Q. All right. If we turn back to 19 Exhibit Number 3, which was the Material 20 Safety Data Sheet with an expiration date of 21 1991. 22 A. Is that it? 23 Q. Yes. 24 MR. CAIRONE: Jack, is your copy 25 upside down? 104 1 JOHN MASAITIS 2 THE WITNESS: Mine is as well. 3 MR. DuPONT: I apologize. 4 BY MR. DuPONT: 5 Q. When you look at Exhibit Number 6 3, the document makes reference to MCA Safety 7 Data Sheet SD-2. Is Exhibit Number 11 the 8 document that is being referenced? 9 A. Yes. 10 Q. You would agree with me that 11 Exhibit Number 11 -- and take your time to 12 look through it, Chemical Safety Data Sheet 13 SD-2 for benzene, does not provide any 14 warning that benzene can cause cancer. 15 A. In 1960 I don't think it did. 16 I don't believe I saw the word cancer in 17 here. 18 Q. And this is the document that 19 the Material Safety Data Sheet marked as 20 Exhibit Number 3 is referring to; correct? 21 A. Yes. 22 Q. Now, you had testified 23 previously that the Safety Data Sheet -- the 24 MCA Safety Data Sheet makes reference to 25 respiratory protection? 105 1 JOHN MASAITIS 2 A. I believe there is a section in 3 here that talks about respiratory protection. 4 Q. And I'm looking at Bates Number 5 USS 303. 6 A. Yes. 7 Q. And in Section 5.2.3, on that 8 page, continuing on to the next page, that 9 discusses the circumstances under which 10 respiratory protection should be worn? 11 A. Yes. 12 Q. Can you read for me the first 13 paragraph under Section 5.2.3? 14 A. "Severe exposure to benzene may 15 occur in tanks during equipment cleaning and 16 repairs, when decontaminating areas following 17 spills, or in cases of failure of piping or 18 equipment. Employees who may be subject to 19 such exposure should be provided with proper 20 respiratory protection and trained in its use 21 and care. Available types are described 22 below." 23 Q. So the first sentence sets 24 forth three circumstances under which 25 employees should be provided respiratory 106 1 JOHN MASAITIS 2 protection when exposed to benzene; correct? 3 MR. CAIRONE: Object to the 4 form. 5 MR. DuPONT: I'm sorry. I 6 apologize. 7 BY MR. DuPONT: 8 Q. The first sentence of that 9 paragraph that you just read describes three 10 circumstances of exposure to benzene. Is 11 that accurate? 12 MR. CAIRONE: Object to the 13 form. I think it said severe. 14 BY MR. DuPONT: 15 Q. Okay. 16 A. It talks about three 17 occurrences for severe exposure to benzene. 18 Q. And then the next sentence 19 says, that is under those types of severe 20 exposures to benzene, that respiratory 21 protection should be provided to employees; 22 correct? 23 A. Yes. 24 Q. And the examples given are 25 employees entering tanks during equipment 107 1 JOHN MASAITIS 2 cleaning and repairs. Number one. Correct? 3 A. Yes. 4 Q. Decontaminating areas following 5 spills. That's number two; correct? 6 A. Yes. 7 Q. And failure of piping or 8 equipment. That's circumstance number three; 9 correct? 10 A. Yes. 11 Q. So what the reader of this 12 document is told is, under these three types 13 of severe exposure circumstances, that 14 respiratory protection should be provided to 15 the employees; correct? 16 A. Yes. 17 Q. Then the document continues to 18 describe the types of respiratory protection 19 that are available for use in these severe 20 exposure situations. Is that accurate? 21 A. It -- there's a sub-paragraph 22 talking about self-contained breathing 23 apparatus. It talks about the available 24 types of respiratory protection at the end of 25 the first paragraph. I guess it can be 108 1 JOHN MASAITIS 2 assumed that it's making reference to the 3 first paragraph. But, in general, it's 4 talking about self-contained breathing 5 apparatus. 6 Q. Right. But what the first 7 paragraph says is that employees may be 8 subject to the exposures and pre-exposures 9 described in the first paragraph -- first 10 sentence of this paragraph. Employees who 11 may be subject to those types of exposures 12 should be provided with proper respiratory 13 protection. And then it goes on to list what 14 the types of respiratory protection and 15 describes them; correct? 16 A. Yes, it says, available type 17 ares described below. 18 Q. Reading those three sentences 19 together, the reader is informed that these 20 are the types of respiratory protection to 21 use under these severe exposure 22 circumstances; correct? 23 A. Yes. 24 Q. It does not warn the reader 25 that respiratory protection is required under 109 1 JOHN MASAITIS 2 ordinary use of a product containing benzene, 3 does it? 4 A. I -5 MR. CAIRONE: To be fair, do you 6 want him to read the whole -- it's a 7 long document. And as long as we're 8 -- we have an understanding that he's 9 either testifying from his memory of 10 his review or his review right now -11 MR. DuPONT: I told him at the 12 outset of asking about this document 13 that if he feels he needs to, he's 14 available to read the document. 15 MR. CAIRONE: Okay. Then if the 16 question is, does this document -17 Andrew, can repeat his question, then 18 I'd advise you to read it. 19 THE WITNESS: Sure. 20 MR. CAIRONE: Read the whole 21 thing, not -- unless he's asking about 22 this paragraph only. 23 BY MR. DuPONT: 24 Q. This is the -- look to Material 25 Safety Data Sheet that's marked Exhibit 110 1 JOHN MASAITIS 2 Number 3. Under special protection 3 information it refers the reader to pages six 4 and seven of the MCA Safety Data Sheet SD-2; 5 correct? 6 A. Yes. 7 Q. Okay. Pages six and seven of 8 the MCA Safety Data sheet is what we're 9 looking at right now, the section that begins 10 with, 5.2.3, Respiratory Protection, and 11 continues on to page seven, up to 5.2.4, head 12 protection. Is that accurate? 13 A. Yes. 14 Q. This is the information that 15 U.S. Steel, at pages six and seven, is 16 referring a reader to in the Material Safety 17 Data Sheet with respect to the use of 18 respiratory protection; correct? 19 A. Yes. 20 Q. You just told me that reading 21 the first paragraph of Section 5.2.3, reading 22 that paragraph together, what it tells you is 23 that respiratory protection is required under 24 the three circumstances that are set forth in 25 the first sentence of that paragraph. 111 1 JOHN MASAITIS 2 Correct? 3 A. Yes. 4 Q. So reading the information that 5 U.S. Steel directs the reader of the Material 6 Safety Data Sheet marked as Exhibit 3 to 7 reference, what that tells the reader is that 8 respiratory protection is required under 9 these three severe exposure circumstances, 10 but it doesn't tell the reader that 11 respiratory protection is required during the 12 normal or intended use of a product 13 containing benzene. Is that correct? 14 MR. CAIRONE: Well, Section 15 5.2.3 speaks for itself. You can 16 answer the question. 17 THE WITNESS: It starts off by 18 talking about the severe exposures to 19 benzene that can occur under the 20 circumstances you described. It talks 21 about the different types of devices 22 that are available. And the -- it 23 doesn't mention anything regarding -24 it talks about other circumstances of 25 exposure with -- so I don't know. 112 1 JOHN MASAITIS 2 BY MR. DuPONT: 3 Q. Reading the first paragraph of 4 that section, the second sentence of that 5 paragraph, it says, "That employees who may 6 be subject to such exposures should be 7 provided with proper respiratory protection." 8 Such exposures references the three exposures 9 that are set forth in the first sentence of 10 that paragraph. Am I correct? 11 A. Yes. 12 Q. It does not reference the 13 ordinary or intended use of a product 14 containing benzene, does it? 15 A. No. 16 MR. CAIRONE: Is there a good 17 place to break, Andrew? 18 (Discussion held off the 19 record.) 20 MR. DuPONT: If you'd like to 21 take a break, I'm fine with taking a 22 break now. 23 - - 24 (Discussion held off the 25 record.) 113 1 JOHN MASAITIS 2 --3 VIDEO TECHNICIAN: The time is 4 12:09. This is the end of tape number 5 two. 6 --7 (Whereupon there was a recess in 8 the proceeding.) 9 --10 VIDEO TECHNICIAN: The time is 11 12:20 p.m., this is the start of tape 12 number three. 13 - - 14 (Whereupon the documents were 15 marked, for identification purposes, 16 as Masaitis Exhibit Numbers 12, 13 and 17 14.) 18 - - 19 BY MR. DuPONT: 20 Q. Mr. Masaitis, while we were on 21 the break I've marked some additional 22 exhibits as Exhibit 12, which is Bates Number 23 316, Exhibit 13, which is Bates Number 314, 24 and Exhibit 14, which is Bates Number 315. 25 The first one I'm going to hand 114 1 JOHN MASAITIS 2 to you is Exhibit 12. And can you simply 3 tell me what that document is and how that 4 document was used by U.S. Steel? 5 A. It's a document talking about 6 one degree nitration grade benzene. 7 Q. How is that document used by 8 U.S. Steel? I'll withdraw it. 9 Would you confirm that this 10 document does not convey warnings information 11 regarding benzene? 12 A. Well, it has -- has some, I 13 guess, characteristics, warnings in -14 relating to health hazards. 15 Q. Health hazards, the use of 16 personal protective equipment? 17 A. No. 18 Q. The next document I'm going to 19 hand you is Exhibit 13. 20 MR. CAIRONE: Which Bates Number 21 is that one? 22 MR. DuPONT: Sure. Exhibit 13 23 is Bates Number 314. 24 MR. CAIRONE: Thanks. 25 BY MR. DuPONT: 115 1 JOHN MASAITIS 2 Q. This document indicates that 3 it's an MCA Chem-Card. Is that correct? 4 A. Yes. 5 Q. And MCA refers to the 6 Manufacturing Chemists Association? 7 A. Yes. 8 Q. Of which U.S. Steel was a 9 member? 10 A. I believe the chemical division 11 was, yes. 12 Q. When did -- when you say the 13 chemical division, are you referring to USS 14 Chemicals? 15 A. Yes. 16 Q. Was U.S. Steel in and of itself 17 a member of the Manufacturing Chemists 18 Association? 19 A. The chemical division may 20 not -- for example, U.S. Steel steel 21 producing wasn't. 22 Q. Okay. When did USS Chemicals 23 become a member of the Manufacturing Chemists 24 Association? 25 A. I have no idea. 116 1 JOHN MASAITIS 2 Q. Were they a member prior to 3 your beginning with the company in 1964? 4 A. I have no idea. 5 Q. My question to you, is this a 6 document that actually accompanied shipments 7 of benzene made by U.S. Steel, or was this a 8 document that was used by U.S. Steel as a 9 guide in developing its own labels? 10 A. I -- I have no idea how it was 11 used. I mean, the document speaks for 12 itself. I -- it says, Transportation 13 Emergency Guide. 14 Q. Okay. You don't know that this 15 document actually accompanied shipments of 16 U.S. Steel benzene? 17 A. I can't say that it did or it 18 didn't. 19 Q. The next document will be 20 Exhibit Number 14, and it's Bates labeled USS 21 315. Is this an MCA Manufacturing Chemists 22 Association Cargo Information Card for 23 benzene? 24 A. Yes. 25 Q. Would your answer be the same, 117 1 JOHN MASAITIS 2 that you do not know how this document was 3 used by U.S. Steel? 4 A. Correct. 5 Q. And you have no knowledge of 6 this document accompanying shipments of 7 benzene made by U.S. Steel? 8 A. I don't know how the document 9 was used. 10 Q. Sir, would you agree with me 11 that threshold limit values are not intended 12 to protect against the carcinogenic effects 13 of chemicals? 14 A. No. 15 Q. You do not agree with that? 16 A. No. 17 MR. DuPONT: Mark this as 18 Exhibit 15. 19 - - 20 (Whereupon the document was 21 marked, for identification purposes, 22 as Masaitis Exhibit Number 15.) 23 - - 24 BY MR. DuPONT: 25 Q. Can you tell us what this 118 1 JOHN MASAITIS 2 document is? And I'll -- I'll represent to 3 you that this -- the portion that I've copied 4 here are portions of a larger document that 5 was produced to us. Specifically Chapter 6 Five of this document. First I would like to 7 ask you, what is this document? 8 A. It looks like a section from 9 the Environmental Health Monitoring Manual 10 that was put together by U.S. Steel 11 Industrial Hygiene. 12 Q. Okay. And it's dated 1973? 13 A. Correct. 14 Q. In 1973, you were a senior 15 industrial hygiene engineer with U.S. Steel 16 -- United States Steel Corporation? 17 A. Yes. 18 Q. Were you involved with 19 developing this document? 20 A. Yes. 21 Q. I am turning to a page that is 22 Bates Number USS -- actually, strike that. 23 Chapter Five of this document 24 is what I've attached to it, along with the 25 cover, the title page, the Table of Contents 119 1 JOHN MASAITIS 2 and forward. And Chapter Five generally 3 discusses TLVs, which are threshold limit 4 values. Correct? 5 A. Yes. 6 Q. It discusses what TLVs are, how 7 they're to be used and how they're not to be 8 used. Is that correct? 9 A. Yes. 10 Q. If you turn to the page that is 11 Bates Number USS 2356. 12 A. (Complying with request.) 13 Q. There is a section of this 14 Chapter Five that discusses the use and 15 misuse of TLVs; is that correct? 16 A. Yes. 17 Q. Can you read the first two 18 sentences of that section of the document for 19 the record, please? 20 A. "It is most important that TLV 21 data be correctly used. Misuse can occur 22 when uninformed individuals view these levels 23 as magic numbers, below which workers are 24 safe and above which they become ill." 25 Q. The document, in the next 120 1 JOHN MASAITIS 2 sentence, goes on to discuss that there is 3 wide variation in of individual 4 susceptibility to exposure to air 5 contaminants; is that correct? 6 A. Yes. 7 Q. Which means that each person 8 can respond differently to exposure to a 9 chemical; is that correct? 10 A. Not each. It says, some 11 workers may. In other words, some workers 12 may be specifically influenced, different 13 than the majority of workers. 14 Q. Okay. Including at lower 15 levels of exposure? 16 A. Some individuals, yes. 17 Q. In fact, the document goes on 18 to explain that. Can you read the next 19 sentence that begins with "Some workers" into 20 the record? 21 A. "Some workers may experience 22 some discomfort from exposures at or below 23 the TLV, and a much smaller number may be 24 affected more seriously by aggravation of a 25 pre-existing condition or by development of 121 1 JOHN MASAITIS 2 an occupational illness." 3 Q. And occupational illnesses 4 would include cancer; correct? 5 A. If it's contracted during the 6 occupation. 7 Q. Okay. Can you read the next 8 sentence into the record? 9 A. "Therefore, the TLV's as 10 published were intended to be used only as 11 guides in the control of health hazards and 12 not as levels which separate safe from 13 dangerous exposures." 14 Q. And that sentence would be 15 true, would it not, including as it relates 16 to the development of occupational illnesses 17 such as cancer from exposures; correct? 18 A. Yes. 19 Q. Sir, during the 1960s and 1970s 20 U.S. Steel was aware of the manner in which 21 end users -- strike that. 22 During the 1960s and 1970s U.S. 23 Steel was aware of the manner in which some 24 of its customers used benzene? 25 MR. CAIRONE: Object to form. 122 1 JOHN MASAITIS 2 BY MR. DuPONT: 3 Q. Is that correct? 4 A. I can't say that. 5 Q. Was U.S. Steel aware, during 6 the 1960s and 1970s, that products made by 7 U.S. Steel, sold to its customers that 8 contained benzene would be placed into 9 products that would be used in the work 10 place? 11 A. Could have been. 12 Q. You've seen correspondence back 13 and forth between U.S. Steel and Radiator 14 Specialty Company; correct? 15 A. Yes. 16 Q. You would agree with me that 17 through those correspondence, U.S. Steel 18 became aware that its products raffinate was 19 used in a product manufactured by Radiator 20 Specialty Company called Liquid Wrench; 21 correct? 22 A. Yes. 23 Q. And U.S. Steel was aware that 24 raffinate contained benzene from one to three 25 percent, as much as 14 or 15 percent; is that 123 1 JOHN MASAITIS 2 correct? 3 A. I know the average was three 4 percent. 5 Q. Okay. But it had benzene in 6 that range; correct? 7 A. Yes. 8 Q. And U.S. Steel was aware that 9 Radiator Specialty Company was putting 10 raffinate, or the benzene into the Liquid 11 Wrench product; correct? 12 A. Yes. 13 Q. And U.S. Steel was also aware 14 that people who might be mechanics and even 15 people in their homes would use Liquid 16 Wrench; is that correct? 17 A. I imagine if you were 18 mechanically inclined, working for U.S. 19 Steel, you would know that. 20 Q. Did U.S. Steel do anything to 21 conduct any kind of audit on how its 22 customers used products containing benzene? 23 In other words, did it do anything to learn 24 what its customers were doing with U.S. Steel 25 benzene containing products that it sold to 124 1 JOHN MASAITIS 2 customers? 3 A. Not to my knowledge. 4 Q. Did U.S. Steel do anything, 5 prior to selling benzene to a company, in 6 order to determine what that company knew, if 7 anything, about the health hazards of benzene 8 during the 1970s and prior to that period? 9 A. Did they do anything? 10 Q. Yes. 11 A. Other than, you know, their 12 knowledge of specific companies, I don't know 13 if they really -- I can't say if they did 14 anything or they didn't do anything. You 15 know, like I say, if you're selling a product 16 to a large company and you know that company 17 is -- you know, makes petroleum products, or 18 something like that, you would know -- have 19 some idea as to what they were doing with it. 20 Q. But U.S. Steel didn't, prior to 21 deciding its own -- strike that. 22 Prior to deciding to sell 23 benzene to a company, U.S. Steel didn't go 24 and do any audits to determine what that 25 company it was selling benzene to knew about 125 1 JOHN MASAITIS 2 the health hazards of benzene? 3 MR. CAIRONE: Object to the 4 form. 5 BY MR. DuPONT: 6 Q. Is that correct? 7 A. To my knowledge, they did -8 conducted no audits of their customers. 9 Q. And they didn't do anything to 10 affirmatively determine what that company did 11 or did not know about benzene; correct? 12 A. I'm not aware of U.S. Steel 13 sending out any questionnaires regarding what 14 the company knew about benzene, or any 15 activities such as that. 16 Q. No questionnaires, no audits, 17 no other communications -18 A. They have may to some people in 19 other divisions. I'm not aware of that, no. 20 Q. You have no knowledge of U.S. 21 Steel doing that; correct? 22 MR. CAIRONE: Asked and 23 answered. 24 THE WITNESS: I have no 25 knowledge of it. I didn't do it. I'm 126 1 JOHN MASAITIS 2 not aware of it. Someone else may 3 have done it, I didn't. 4 MR. DuPONT: Mark the next 5 document as Exhibit Number 16. 6 --7 (Whereupon the document was 8 marked, for identification purposes, 9 as Masaitis Exhibit Number 16.) 10 - - 11 BY MR. DuPONT: 12 Q. For the record, that's Bates 13 Number USS 3850 to USS 3859. 14 Sir, have you seen this 15 document before? 16 A. Not that I recall. 17 Q. On the first page of the 18 document it says, United States Steel 19 Corporation, Industrial Relations Department. 20 Do you see that? 21 A. Yes. 22 Q. Are you aware of the United 23 States Steel Corporation having an industrial 24 relations department? 25 A. Yes. 127 1 JOHN MASAITIS 2 Q. At the bottom of the document 3 it says, Prepared By Industrial Hygiene 4 Section, Medical Division. Are you aware 5 that U.S. Steel had an industrial hygiene 6 section? 7 A. Yes. 8 Q. Okay. They say we're not 9 supposed to ask questions we don't know the 10 answer to. 11 The title of this document is 12 "Health Hazards in Use of Solvents For Motor 13 Cleaning". Do you see that? 14 A. Yes. 15 Q. Are you able to tell me what 16 the date of this document is? 17 A. That's exactly what I was 18 looking at. It seems like -- I see a 1953 19 date, but -- I -- I don't see any other 20 dates, other than that 1953 date. 21 Q. Maybe that first paragraph, 22 that 1953 date of this document is the 23 context for it. In reading that first 24 paragraph, does it appear to you that there 25 was an issue within U.S. Steel regarding the 128 1 JOHN MASAITIS 2 desirability of using organic solvents for 3 cleaning motors? 4 A. Correct. 5 Q. Then it goes on that the 6 industrial hygiene section of U.S. Steel 7 apparently was cooperating with the 8 maintenance committee of U.S. Steel to 9 investigate solvents to be used for cleaning 10 motors. Do you see that? 11 A. Yes. 12 Q. And it appears that some report 13 of the results of the investigation made by 14 the industrial hygiene department were 15 transmitted or given to the maintenance 16 company -- maintenance committee on 17 January 15th of 1953. Do you see that? 18 A. Yes. 19 Q. And it goes on to say that the 20 intention of this document, or the desire of 21 this document is to supplement the 22 information previously transmitted on 23 January 15 regarding the use of solvents for 24 cleaning motors. The industrial hygiene 25 section investigation of that property. 129 1 JOHN MASAITIS 2 A. Where are you reading? 3 Q. Sure, the last sentence of that 4 first paragraph. 5 A. Shall desire at this time to 6 supplement, yes. 7 Q. Is that a fair interpretation 8 of that -- of this document? 9 A. Yes. 10 Q. Then what follows through this 11 document is recommendations that the 12 industrial hygiene committee are making 13 regarding the use of organic solvents; 14 correct? 15 A. I -16 MR. CAIRONE: Do you need to 17 read? I mean, I don't know that it's 18 fair to ask these questions about a 10 19 page document that he just said he's 20 never seen. 21 MR. DuPONT: Sure. 22 BY MR. DuPONT: 23 Q. And again, I gave you the 24 instruction earlier, if you need to look at 25 the document, please feel free to do. 130 1 JOHN MASAITIS 2 A. It talks about the utilization 3 factors, fire hazards, health hazards, tables 4 listing the health hazards and fire hazards 5 in motor cleaning solvents. And your 6 question pertaining -7 Q. Sure. My question is simply, 8 is it a fair interpretation of this document 9 that what is happening to the industrial 10 hygiene committee is providing advice and 11 guidance to the maintenance committee 12 regarding the use of organic solvents for 13 cleaning motors? Is that fair? 14 MR. CAIRONE: The fairest 15 interpretation is gleaned from reading 16 it, which I still think you need to do 17 if you're going to ask about what the 18 fairest interpretation is. I know 19 you -- it's a long document and you 20 would rather not, but... 21 THE WITNESS: Well, I can sit 22 here and read it. 23 (Reading document.) 24 BY MR. DuPONT: 25 Q. Sir, if I could interrupt you 131 1 JOHN MASAITIS 2 there. 3 A. Yes. 4 Q. Have you read enough of the 5 document to be able to determine that, 6 generally speaking, what the industrial 7 hygiene committee is doing here is providing 8 guidance and advice to the maintenance 9 committee regarding the use of organic 10 solvents for cleaning engines? 11 A. After getting into the 12 document, I have a better understanding of 13 what it is. And I do recall now seeing parts 14 of this document. I know -- get an 15 understanding of what its purpose was. 16 Q. Okay. 17 Is it fair to say, generally, 18 what was happening here is, the industrial 19 hygiene committee at U.S. Steel was providing 20 advice and consultation to the maintenance 21 committee of U.S. Steel regarding the use of 22 organic solvents; correct? 23 A. Yes. 24 Q. If you look at page two of the 25 document, which is Bates numbered USS 3852. 132 1 JOHN MASAITIS 2 MR. CAIRONE: Just to be clear, 3 there are two page twos. So you're 4 looking at the page two that is 3852? 5 MR. DuPONT: Yes. Right. 6 BY MR. DuPONT: 7 Q. Bates Number 3852, if you look 8 at the first full paragraph. Can you read 9 into the record what the industrial hygiene 10 department at U.S. Steel is telling the 11 maintenance department? Can you read that 12 first sentence into the record? 13 A. Beginning with, "In any event"? 14 Q. Yes, sir. 15 A. "In any event, every effort 16 should be made to exclude carbon 17 tetrachloride and benzol for cleaning 18 purposes. These are the most toxic of 19 organic solvents and excessive exposure to 20 them may result in severe illness. These 21 solvents may be found in various mixtures 22 available through manufacturers and 23 suppliers. Cleaning solvents are generally 24 sold under a trade name or trade number, so 25 that the user has very little information 133 1 JOHN MASAITIS 2 upon which to evaluate the fire and health 3 hazard potentials. We should like, 4 therefore, to urge that when you contemplate 5 the use of any cleaning solvent, a quart 6 sample be submitted to our Industrial Hygiene 7 Section, Medical Division Industrial 8 Relations Department so that it may be 9 analyzed and the health and fire hazards 10 evaluated." 11 Q. Okay. So what the industrial 12 hygiene committee is telling the maintenance 13 committee within U.S. Steel is, don't use 14 benzene for cleaning purposes; correct? 15 MR. CAIRONE: Object to the 16 form. 17 THE WITNESS: It says, "In any 18 event every effort should be made to 19 exclude carbon tetrachloride and 20 benzol for cleaning purposes." 21 BY MR. DuPONT: 22 Q. Right. 23 A. To exclude. 24 Q. Exclude it, don't use it; 25 correct? 134 1 JOHN MASAITIS 2 A. Every effort -- no, it's 3 saying, every effort should be made to 4 exclude. 5 Q. All right. By exclude, it 6 means eliminate benzene from use; correct? 7 A. Yes. 8 Q. All right. One of the reasons 9 given is that benzene, along with carbon 10 tetrachloride, are the most toxic of organic 11 solvents. Correct? 12 MR. CAIRONE: Well, we've read 13 that into the record twice now and it 14 says what it says. 15 BY MR. DuPONT: 16 Q. Is that correct? 17 A. Yes. 18 MR. CAIRONE: Are you asking 19 whether it says that again? Is 20 that -- because it does. 21 BY MR. DuPONT: 22 Q. It goes on to say that 23 excessive exposure to benzene may result in 24 severe illness; correct? 25 A. Yes. 135 1 JOHN MASAITIS 2 Q. All right. Can you show me on 3 any Material Safety Data Sheet or any 4 document that was provided to any U.S. Steel 5 customer purchasing benzene prior to 1978, or 6 during that year, where that information is 7 conveyed, that benzene should not be used as 8 a cleaning solvent? 9 A. No. I can't show you anything 10 that states specifically it shouldn't be used 11 for cleaning purposes, and I can't show you 12 instances where it should be used for any 13 other purpose. 14 Q. All right. The document says, 15 you also read for the record, cleaning 16 solvents are generally sold under a trade 17 name or trade numbers that the user has very 18 little information upon which to evaluate the 19 fire and health hazard potentials. As an 20 industrial hygienist, that's a problem, isn't 21 it? 22 MR. CAIRONE: Object to the 23 form. 24 THE WITNESS: This -- yes, it's 25 a problem. And that's why -- 136 1 JOHN MASAITIS 2 BY MR. DuPONT: 3 Q. And the reason there is -4 MR. CAIRONE: Let him finish his 5 answer. 6 BY MR. DuPONT: 7 Q. And the reason it's a problem 8 is that you're not providing -- strike that. 9 Can you turn to page 3858, 10 please? 11 A. Page 3858? 12 Q. Right. Does this page of the 13 document provide a pictorial depiction, a 14 drawing, of the types of respiratory 15 protection and ventilation that should be 16 used in conjunction with cleaning solvents? 17 A. It's a diagram showing a man 18 with personal protective equipment spray 19 cleaning a part. 20 Q. And the personal protective 21 equipment, what type of respirator is he 22 wearing? 23 A. A chemical cartridge, organic 24 vapor. 25 Q. What is that in front of the 137 1 JOHN MASAITIS 2 respirator? 3 A. Face shield. 4 Q. Is he wearing any type of 5 personal protective equipment, besides his 6 clothing? 7 A. Looks like he's wearing gloves 8 that should be impervious to the material 9 that he's cleaning with, and also coveralls 10 that should be impervious. 11 Q. What type of ventilation is 12 depicted in this diagram? 13 A. It's a spray-type booth with 14 baffle plates and an exhaust stack and 15 explosive proof light fixtures. 16 Q. And the exhaust stack -- the 17 purpose of the exhaust stack is to suck 18 vapors out of the air where the solvent 19 cleaning is taking place? 20 A. Yes. 21 Q. Sir, I would like to turn your 22 attention back to some of the changes that 23 happened in the late 1970s and 1980s 24 regarding the OSHA benzene standard. We 25 discussed that in 1977 the emergency 138 1 JOHN MASAITIS 2 temporary standard was issued by OSHA. 3 Correct? Do you recall that? 4 A. Yes. 5 Q. And the result of that was to 6 lower the permissible exposure level from 10 7 part per million to one part per million? 8 A. That was one of the purposes, 9 yes. 10 Q. Then, are you aware that the 11 American Petroleum Institute and other 12 members of industry litigated OSHA's decision 13 up to the United States Supreme Court? 14 A. Yes. 15 Q. Do you know when the reduction 16 of the permissible exposure level from 10 17 part per million to one part per million 18 became final? 19 A. I believe it was the mid to 20 late eighties. 21 Q. Do you know what resulted or 22 what happened in order for the exposure 23 standard to become final in the mid to late 24 eighties? 25 MR. CAIRONE: Object to the 139 1 JOHN MASAITIS 2 form. 3 THE WITNESS: I have some recall 4 regarding the rule making process. 5 BY MR. DuPONT: 6 Q. What do you recall? 7 A. Specifically pertaining to 8 what? 9 Q. What resulted in the benzene 10 standard reduction from 10 part per million 11 to one part per million becoming the final 12 rule? 13 MR. CAIRONE: Object to the 14 form. 15 BY MR. DuPONT: 16 Q. How did that happen? What 17 changed between 1977 and 1985 or 1986? 18 MR. CAIRONE: Object to the 19 form. 20 THE WITNESS: After reviewing 21 the OSHA proposal, there was a large 22 majority of toxicologists, 23 epidemiologists, industrial hygienists 24 who took exception to some of the 25 studies that OSHA used in its 140 1 JOHN MASAITIS 2 documentation for the need. And in 3 the rule making process presented 4 testimony from more authoritative 5 sources objecting to the need to that 6 standard at that time, and other 7 portions of it. 8 BY MR. DuPONT: 9 Q. And apparently it's your 10 understanding that by 1985, 1986 the standard 11 became final because there was now a 12 consensus that benzene causes leukemia. Is 13 that what you're telling me? 14 MR. CAIRONE: Form. 15 THE WITNESS: There was -- there 16 was interaction amongst the people 17 participating in the rule making here 18 in the organizations and eventually 19 they came to a consensus. 20 BY MR. DuPONT: 21 Q. Should U.S. Steel have warned 22 that benzene causes cancer in 1977, when the 23 federal government issued the emergency 24 temporary standard? 25 A. I don't think so. 141 1 JOHN MASAITIS 2 Q. Is it your position that U.S. 3 Steel should not have -- when I say you, I 4 mean the company. Was it U.S. Steel's 5 position that it should not have warned that 6 benzene causes leukemia until the standard 7 became final in 1985 or 1986? 8 A. There is an established 9 procedure that the country has regarding rule 10 makings, and the procedure was followed. And 11 that's pretty much, you know, what happened 12 during that time period. 13 Q. I'm not -- I'm not asking about 14 the country's procedures, I'm asking about 15 U.S. Steel's procedures. 16 A. Well -17 MR. CAIRONE: Let him ask his 18 question. 19 BY MR. DuPONT: 20 Q. At what point in time -- at 21 what point in time is U.S. Steel satisfied 22 that there is enough information that a 23 particular chemical can cause cancer such 24 that it should issue those warnings? 25 MR. CAIRONE: Object to the 142 1 JOHN MASAITIS 2 form. 3 THE WITNESS: I can't say 4 specifically when each and every 5 individual of U.S. Steel, you know, 6 may -- you know, was convinced that 7 indeed that benzene was a carcinogen. 8 I can't even recall specifically when 9 I was, you know, convinced to 10 subscribe to it. All I can recall is 11 that when the standard became final, 12 then the -- it -- yes, then it's a 13 carcinogen. It's that -- it has to be 14 accepted because it's the law. But 15 you have to go through the rule making 16 procedures. 17 BY MR. DuPONT: 18 Q. So let me see if I can 19 understand this. In 1977 the federal 20 government, through OSHA, says benzene is a 21 carcinogen; correct? 22 MR. CAIRONE: Object to form. 23 THE WITNESS: They said they 24 suspect that it was a carcinogen. 25 BY MR. DuPONT: 143 1 JOHN MASAITIS 2 Q. Are you telling me that the 3 federal government did not say in 1977 that 4 benzene is a carcinogen? 5 A. In 1977, when the rule making 6 process began, yes. Then, yes. 7 Q. Right. Okay. And U.S. Steel 8 did not accept that, did it? 9 A. Well, the majority of the 10 occupational health community didn't accept 11 it. 12 MR. DuPONT: Objection, move to 13 strike. 14 BY MR. DuPONT: 15 Q. I'm not asking you about the 16 occupational health community. 17 A. I can't -18 Q. Sir, U.S. Steel did not accept 19 in 1977 that the federal government said that 20 benzene causes cancer, did it? 21 MR. CAIRONE: Object to form. 22 THE WITNESS: Personally, I did 23 not. Other members of U.S. Steel, I 24 don't know what each and every member 25 of the corporation thought about the 144 1 JOHN MASAITIS 2 emergency temporary standard. 3 BY MR. DuPONT: 4 Q. You're testifying on behalf of 5 United States Steel. I'm asking you, is it 6 your testimony, as a representative of United 7 States Steel, that United States Steel 8 Corporation did not accept, in 1977, that the 9 federal government said that benzene is a 10 carcinogen? 11 MR. CAIRONE: Object to the 12 form. 13 THE WITNESS: Here again, how 14 each and every individual thought, I 15 think the corporation participated in 16 rule making hearings through the AISI, 17 as I recall. So maybe they didn't 18 agree. 19 BY MR. DuPONT: 20 Q. So you think maybe U.S. -- you 21 think U.S. Steel did agree with the federal 22 government that benzene was a carcinogen in 23 1977? 24 MR. CAIRONE: Object to the 25 form. 145 1 JOHN MASAITIS 2 THE WITNESS: No, I don't think 3 so. 4 BY MR. DuPONT: 5 Q. So is what you're telling me, 6 as a representative from U.S. Steel, is that 7 it did not accept that the government 8 declared benzene as a carcinogen in 1977? 9 MR. CAIRONE: Object to the 10 form. Hold on a minute, because this 11 is about the seventh time. He's doing 12 the best job he can, I think, to 13 answer what is an unfair question and 14 very unclear. So he's answered it six 15 times to the best of his ability. 16 THE WITNESS: I'm saying that I 17 did not think that it was from the 18 information that I had time to go 19 through and read. What each and every 20 member thought of U.S. Steel, I can't 21 say. 22 MR. CAIRONE: Let me also say, 23 please, that I don't believe this was 24 a subject designated for testimony. 25 So our obligation under the 146 1 JOHN MASAITIS 2 Pennsylvania Rules of Civil Procedure 3 is to designate somebody who is able 4 to testify about what the corporation 5 either knows or has access to. And 6 this whole rule making process, I 7 don't think it -- if it's there and 8 you can show it to me -9 MR. DuPONT: I'm not talking 10 about the rule making process. 11 MR. CAIRONE: Sure, you are. 12 MR. DuPONT: I'm talking 13 about -14 BY MR. DuPONT: 15 Q. My question to you is, I'm 16 asking you, as a representative of U.S. 17 Steel, not you personally, not what everybody 18 at U.S. Steel knew or accepted. I'm asking 19 you, when the federal government in 1977 said 20 that benzene was a carcinogen, did U.S. Steel 21 accept what the federal government said, or 22 did it decide that it was not going to accept 23 what the federal government's determination 24 was and it was not -25 MR. CAIRONE: Objection to the 147 1 JOHN MASAITIS 2 form. 3 BY MR. DuPONT: 4 Q. -- going to consider benzene a 5 carcinogen? 6 MR. CAIRONE: Object to the 7 form. 8 THE WITNESS: What U.S. Steel 9 decided, it would participate in the 10 rule making process, as each and every 11 affected party had the right to do. 12 And that's what was done. In other 13 words, we were there to learn too. 14 Show us what you're talking about. 15 Show us your studies. Give us the 16 information that you have, you know. 17 It's something that, you know, has to 18 be done, just like any other 19 reasonable event, you know. Why are 20 you saying this? Show me your 21 studies. 22 BY MR. DuPONT: 23 Q. So when the federal government 24 in 1977 said that benzene was a carcinogen, 25 U.S. Steel -- U.S. Steel did not accept that? 148 1 JOHN MASAITIS 2 MR. CAIRONE: That is about the 3 tenth time that the same question has 4 been answered. So you can have one 5 more shot at it and then I'm going to 6 tell him, no more. 7 THE WITNESS: U.S. Steel, like 8 the other parties involved, wanted to 9 see the information that OSHA had put 10 together to come up with this 11 conclusion. And because up until that 12 point in time, we didn't think that 13 there was sufficient information out 14 there. So we wanted to participate in 15 hearings to personally see what OSHA 16 had, that I shouldn't -- to understand 17 where they were coming from. 18 BY MR. DuPONT: 19 Q. Part of what U.S. Steel did as 20 a member of the American iron and steel 21 industry, was to hire its own medical 22 consultants to submit information to OSHA in 23 the context of the ruling; is that correct? 24 A. I can't recall who was hired or 25 -- I can't answer that. 149 1 JOHN MASAITIS 2 Q. Are you aware, from reviewing 3 the documents from U.S. Steel, that the 4 American Iron and Steel Industry, that 5 organization, hired medical professionals to 6 submit information to OSHA concerning benzene 7 rule changes? 8 MR. CAIRONE: Can you point to 9 me, please, before we continue this 10 line, where you designated this as a 11 subject for the corporate deposition. 12 Then maybe we can continue. Because 13 if you didn't, which is what I think 14 is the case, he has no obligation to 15 review the documents or prepare 16 because it wasn't a subject 17 designated. So is it in your notice 18 or not? 19 MR. DuPONT: Are you telling me 20 that the company's knowledge of the 21 health hazard of benzene warnings and 22 issues related to that aren't in the 23 Notice of Deposition? 24 MR. CAIRONE: That's not what 25 you're asking. You're asking him 150 1 JOHN MASAITIS 2 about the rule making process leading 3 up to litigation challenging the OSHA 4 standard in '77. And it's a 5 completely discrete topic. 6 MR. DuPONT: I'm asking about 7 documents that have been produced in 8 this litigation. 9 MR. CAIRONE: Well -10 MR. DuPONT: -- By U.S. Steel, 11 and that I believe is a subject of the 12 Notice of Deposition. 13 MR. CAIRONE: Well, I'm 14 objecting to the whole line of 15 questioning and the fact that you 16 didn't notice it as a topic. And -17 go ahead. 18 BY MR. DuPONT: 19 Q. Sir, are you aware that U.S. 20 Steel, as a member of the American Iron and 21 Steel Industry, hired medical experts to 22 submit information to OSHA in the context of 23 the rule making procedures? 24 MR. CAIRONE: Asked and 25 answered. 151 1 JOHN MASAITIS 2 THE WITNESS: I personally can't 3 recall who the AISI hired and what 4 their particular expertise was. 5 --6 (Discussion held off the 7 record.) 8 --9 BY MR. DuPONT: 10 Q. Sir, I'm going to hand you a 11 document which I've pulled from your 12 materials. I'm handing it to your counsel. 13 It's being marked as Exhibit Number 17. 14 - - 15 (Whereupon the document was 16 marked, for identification purposes, 17 as Masaitis Exhibit Number 17.) 18 - - 19 THE WITNESS: '82 Material 20 Safety Data Sheet. 21 BY MR. DuPONT: 22 Q. It's Bates Number USS 8892 to 23 8893. And you've identified for us that that 24 is a Material Safety Data Sheet for benzene 25 dated 1982. 152 1 JOHN MASAITIS 2 A. Yes. 3 Q. And that Material Safety Data 4 Sheet does provide a warning that exposure to 5 benzene can cause leukemia? 6 MR. CAIRONE: I'm sorry, did I 7 distract you? Can you repeat that? 8 THE WITNESS: It does, yes. 9 BY MR. DuPONT: 10 Q. And that Material Safety Data 11 Sheet is dated 1982, which is before the 12 finalization, reduction of the benzene 13 exposure permissible -- strike that. 14 1982 is before OSHA finalized 15 the reduction of the benzene permissible 16 exposure level from 10 to one part per 17 million, is it not? 18 A. Yes. 19 Q. And this is the first time that 20 United States Steel Corporation put a cancer 21 warning on a benzene Material Safety Data 22 Sheet; is that correct? 23 A. Material Safety Data Sheets 24 that I have seen, yes. I have seen in regard 25 to this litigation. I can't recall if this 153 1 JOHN MASAITIS 2 was the very first one ever. 3 Q. Okay. Do you have any 4 knowledge that United States Steel 5 Corporation issued Material Safety Data 6 Sheets prior to 1982 that said benzene can 7 cause cancer? 8 A. I have no knowledge of that. 9 Q. Now, you've discussed raffinate 10 before as a product that contained anywhere 11 from 1 to 14 or 15 percent benzene, as 12 manufactured by U.S. Steel; correct? 13 A. I've seen documents saying one 14 to 14 percent. 15 Q. You also testified that it's 16 your understanding on average the product 17 contained three percent benzene? 18 A. Yes. 19 - - 20 (Whereupon the document was 21 marked, for identification purposes, 22 as Masaitis Exhibit Number 18.) 23 - - 24 BY MR. DuPONT: 25 Q. I'm going to hand you what I've 154 1 JOHN MASAITIS 2 marked as Exhibit Number 18. Sir, is that a 3 Safety Data Sheet for raffinate? 4 A. Yes, it is. 5 MR. CAIRONE: This one has 6 handwritten notes on it. 7 (Discussion held off the 8 record.) 9 BY MR. DuPONT: 10 Q. Sir, is this dated 1969? Can 11 you tell that, looking at the top righthand 12 corner of the document? 13 A. It appears to be '69. 14 Q. And if you look at the page 15 that is Bates Number USS 18, that contains 16 certain health warnings. 17 A. Yes. 18 Q. Can you read the first sentence 19 in that paragraph into the record? 20 A. "Raffinate has an anesthetic 21 effect on the body when inhaled in sufficient 22 quantities (sic)." 23 Q. When you say an anesthetic 24 effect, what are you talking about? 25 MR. CAIRONE: That's what the 155 1 JOHN MASAITIS 2 document says. Are you asking him 3 what he understands that to mean? 4 MR. DuPONT: Sure. 5 BY MR. DuPONT: 6 Q. What is meant by anesthetic 7 effect? 8 A. An anesthetic is something that 9 is a numb effect. 10 Q. All right. Turn to the same 11 paragraph, last sentence. 12 A. "Chronic exposure to low 13 concentrations of the vapors can cause severe 14 damage to blood-forming structures." 15 Q. Is that talking about the 16 vapors in the raffinate itself, or the vapors 17 in the benzene and raffinate. 18 A. Well, I think that it's talking 19 to the benzene concentration in the 20 raffinate. 21 Q. Does it say that? 22 A. No, but it's implied, in my 23 mind. 24 Q. If you turn under -- to the 25 warning properties on the same page. It 156 1 JOHN MASAITIS 2 says, "Raffinate does not have good warning 3 properties." What's meant by warning 4 properties? 5 A. Well, something that would 6 cause the individual to avoid it. 7 Q. Can you go to page six of the 8 document, please? 9 A. (Complying with request.) 10 Q. The first sentence of this 11 paragraph repeats what we saw on page two of 12 the document, which is that repeated 13 exposures at low vapor concentrations over a 14 period of time can result in chronic 15 poisoning. 16 MR. CAIRONE: Object to the 17 form. I don't think it repeats it. 18 It says something different, but -19 THE WITNESS: It's somewhat 20 similar, but it's not exactly. One 21 talks about blood-forming structures 22 and the other talks about chronic 23 poisoning. 24 BY MR. DuPONT: 25 Q. Okay. And the chronic 157 1 JOHN MASAITIS 2 poisoning reaction that's being referred to 3 on page six, that reaction will differ in 4 people, depending on their own susceptibility 5 to exposure to the vapors. Is that accurate? 6 A. It doesn't mean that each and 7 every individual has its own susceptibility. 8 It's -- what it means, that there are people 9 who may be more sensitive to particular 10 materials, as opposed to the rest of the 11 population. 12 Q. So those particular people may 13 contract the chronic poisoning at lower 14 levels than other members of the population. 15 Is that what that means? 16 A. Relatively speaking. 17 Q. If you go to the last sentence 18 in this paragraph, it discusses that in 19 severe cases the bone marrow is affected so 20 as to produce blood cell deficiencies that 21 can result in death. Do you see that? 22 A. Yes. 23 Q. Are you familiar with a 24 condition, aplastic anemia? 25 A. I've heard of it. I'm not 158 1 JOHN MASAITIS 2 going to answer any questions regarding the 3 medical aspects of it. 4 Q. All right. Do you know whether 5 the blood cell deficiencies that can result 6 in death that are being referred to here are 7 aplastic anemia? 8 A. I can't answer. 9 MR. SYKES: Okay, I'm really not 10 trying to be uncooperative, but I 11 think we have to take a lunch break 12 here. There are going to be other 13 questions, I'm sure. 14 (Discussion held off the 15 record.) 16 MR. DuPONT: I may be done. I 17 may only have one or two more minutes 18 of questioning. So why don't we go 19 off the record and see what everybody 20 else has. 21 VIDEO TECHNICIAN: The time is 22 1:19, going off the record. 23 - - 24 (Discussion held off the 25 record.) 159 1 JOHN MASAITIS 2 --3 VIDEO TECHNICIAN: This is the 4 beginning of tape number four, the 5 time is 1:22 p.m. 6 BY MR. NEUER: 7 Q. Mr. Masaitis, my name is Ray 8 Neuer. I'm a lawyer from Houston and I 9 represent a company called T H Agriculture 10 and Nutrition, LLC. Have you and I ever met 11 before, sir? 12 A. No. 13 Q. Met today, earlier? 14 A. Yes. 15 Q. If I ask you a question that 16 you do not understand, will you please ask me 17 to rephrase it? 18 A. Yes. 19 Q. You've been asked some 20 questions that kind of bump up on medical 21 aspects in the case, and it's true, is it 22 not, you're not a medical doctor; correct? 23 A. Correct. 24 Q. You're not an epidemiologist; 25 correct? 160 1 JOHN MASAITIS 2 A. That's correct. 3 Q. You were an industrial 4 hygienist by trade, so you have some 5 knowledge regarding the benzene issue that 6 existed during the 1970s. True? 7 A. Yes. 8 Q. However, with respect to 9 specific issues regarding expected latency 10 periods due to exposure of benzene as far as 11 certain types of leukemia are concerned, 12 that's beyond your area of expertise. True? 13 A. True. 14 Q. With respect to the specific 15 mechanism through which exposure to benzene 16 may or may not cause damage to the blood 17 forming organs, that's beyond your area of 18 expertise. 19 A. Correct. 20 Q. With regard to what specific 21 types of leukemia may or may not be 22 associated with exposure to benzene, that is 23 beyond your area of expertise. 24 A. Yes. 25 Q. With respect to what levels of 161 1 JOHN MASAITIS 2 exposure the scientific community expects to 3 see in order to say that there is a link 4 between benzene exposure and certain types of 5 leukemia, that's beyond your area of 6 expertise. True? 7 A. Yes. 8 Q. But you do understand, as an 9 industrial hygienist, that there are doctors 10 and epidemiologists out in the scientific 11 community who study these issues at a very 12 minded level; correct? 13 A. Correct. 14 Q. And you would leave it to those 15 individuals to address these issues in this 16 case. True? 17 A. True. 18 Q. Now, earlier in your deposition 19 you were asked some questions about your 20 knowledge of a company called 21 Thompson-Hayward Chemical Company. Do you 22 recall that? 23 A. Yes. 24 Q. I believe your testimony was, 25 is that before this case you didn't know 162 1 JOHN MASAITIS 2 anything about Thompson-Hayward Chemical 3 Company. True? 4 A. Yes. 5 Q. And your knowledge of 6 Thompson-Hayward Chemical Company is 7 essentially limited to the information that 8 was provided to you in a notebook that was 9 given to you in preparation for this 10 deposition. True? 11 A. Yes. 12 Q. But, of course, in that 13 notebook there was a good deal of information 14 that had nothing whatsoever to do with 15 Thompson-Hayward Chemical Company. True? 16 A. Yes. 17 Q. I believe you indicated that 18 your knowledge of Thompson-Hayward Chemical 19 Company was limited, as far as documents are 20 concerned, to some invoices that reflected 21 that USS Chemicals had supplied benzene to 22 the Chicago office of Thompson-Hayward 23 Chemical Company. True? 24 A. Yes. 25 Q. So that's one thing that you do 163 1 JOHN MASAITIS 2 know about Thomas Hayward Chemical Company, 3 is that it purchased benzene from USS 4 Chemicals. True? 5 A. Yes. 6 Q. As far as what particular 7 locations Thompson-Hayward Chemical Company 8 may have had throughout the country and what 9 specifically they did or what they 10 distributed, you don't have any knowledge of 11 that, beyond what you saw in the documents 12 that you reviewed in preparation for your 13 deposition. True? 14 A. Yes. 15 Q. Okay. 16 MR. SYKES: And may I interject, 17 and what he was told by counsel, which 18 is privileged. 19 BY MR. NEUER: 20 Q. True. You don't want me to ask 21 about that. Okay. 22 In looking through the 23 notebook, I did not see that you had reviewed 24 the deposition of a man named Steve Carter. 25 Have you seen that deposition, sir? 164 1 JOHN MASAITIS 2 A. No. 3 Q. He was presented as the 4 corporate representative of Thompson-Hayward 5 Chemical Company. You have not read his 6 deposition. True? 7 A. True. 8 Q. You have not read the 9 deposition of a gentleman by the name of 10 Charles Graham, who was presented as the 11 corporate representative of Handschy, have 12 you, sir? 13 A. No. 14 Q. So with respect to what those 15 individuals may have testified to regarding 16 the relationship between Thompson-Hayward 17 Chemical Company and Handschy, we'd have to 18 look to those depositions and that testimony. 19 True? 20 A. Yes. 21 Q. Now, earlier in your deposition 22 you were asked a question as to whether or 23 not you considered Thompson Hayward Chemical 24 Company a manufacturer of chemicals. And I 25 saw that you hesitated and struggled with 165 1 JOHN MASAITIS 2 that question. Do you recall that? 3 A. Yes. 4 Q. All right. Now, in this 5 particular instance, with respect to U.S. 6 Steel, did you testify earlier that benzene 7 was made secondary to the manufacture of 8 coke? 9 A. Yes. 10 Q. Was coke used in connection 11 with the manufacture of steel? 12 A. Yes. 13 Q. Do you have an appreciation and 14 understanding that coke is made from 15 petroleum crude? 16 A. Coke is made from metallurgical 17 grade coal. 18 Q. Okay. So there was -- there 19 was a process through which U.S. Steel took 20 coal, created coke, and used that coke in the 21 manufacture of steel products? 22 A. Correct. 23 Q. As a by-product of making coke, 24 I believe you testified -- testified that 25 light oils were generated as a by-product? 166 1 JOHN MASAITIS 2 A. Yes. 3 Q. And those light oils could be 4 broken down through another manufacturing 5 product into other hydrocarbons; correct? 6 A. Correct. 7 Q. I believe you mentioned 8 toluene, xylene and benzene. 9 A. Correct. 10 Q. And you've indicated that 11 through that manufacturing process the light 12 oils, at least at three different locations, 13 U.S. Steel was a manufacturer of benzene; 14 correct? 15 A. Yes. 16 Q. All right. Is it your 17 understanding, through review of the 18 materials for preparation of your deposition, 19 that what Thompson-Hayward Chemical Company 20 did in this case was that it blended raw 21 materials that had already been made by 22 manufacturers into a particular product for 23 Handschy? 24 A. Yes. 25 Q. You haven't seen any indication 167 1 JOHN MASAITIS 2 that Thompson-Hayward Chemical Company 3 engaged in the type of manufacturing process 4 that I have described, and you've testified 5 to, where you take a raw material, like coal, 6 break it down as a result of a by-product, 7 further break that down to make a particular 8 chemical? You've been given no indication 9 that Thompson-Hayward Chemical Company 10 engaged in that type of activity. True? 11 A. That's correct. 12 Q. Okay. But we do know that as a 13 manufacturer of benzene, xylene, toluene, 14 that as part of that process, when a company 15 sells that product out in the open market, it 16 will typically put together product data 17 sheets and Material Safety Data Sheets to 18 disclose the proper use of that product and 19 potential hazards of that product. Correct? 20 A. Typically manufacturers put 21 together a Material Safety Data Sheet for any 22 product that they manufacture. 23 Q. And part of the purpose of a 24 Material Safety Data Sheet is to tell the 25 customers who are going to use that product 168 1 JOHN MASAITIS 2 how to properly use that product and what the 3 hazards of that product are. Correct? 4 A. A Material Safety Data Sheet is 5 a means of conveying information, health 6 hazard type, protective equipment, 7 flammability, spill procedures. 8 Q. Now, we've looked at several 9 Material Safety Data Sheets that were issued 10 by USS Chemicals for a product known as 11 benzene; correct? 12 A. We've looked at three. 13 Q. I believe we looked at the one 14 for 1971, the one for 1972, the one for 1979, 15 and then a fourth one we just looked at for 16 1982. Do you recall that, sir? 17 A. Yes. 18 Q. And we saw that, while there 19 were references to the MCA in '71, '72 and -20 A. Excuse me. When I responded 21 yes, I responded yes to the fourth one that 22 you were describing. But, to my knowledge, 23 it was just '72, '79 and '82 that we looked 24 at. 25 Q. Okay. Fair enough. We looked 169 1 JOHN MASAITIS 2 at a Material Safety Data Sheet from USS 3 Chemicals from 1972, '79 and then in 1982. 4 A. '82, yes. 5 Q. We looked at the one in the 6 seventies, and the seventies did not have a 7 specific warning on the Material Safety Data 8 Sheet that exposure to benzene could cause 9 cancer or leukemia. True? 10 A. That's correct. 11 Q. The one that we did see, the 12 one in 1982 had a very specific warning that 13 exposure to benzene may result in anemia or 14 at least one type of leukemia; correct? 15 A. Yes. 16 Q. And I ask that question about 17 one type of leukemia because it goes back to 18 the question that I had asked you earlier 19 about whether or not you have expertise as to 20 whether or not -- what types of leukemia may 21 or may not be caused or associated with 22 exposure to benzene. Again, that's beyond 23 your area of expertise? 24 A. Yes. 25 Q. With respect to this Material 170 1 JOHN MASAITIS 2 Safety Data Sheet in 1982, where it says 3 there may be a causal relationship with at 4 least one type of leukemia, do you know what 5 type of leukemia was being referenced in that 6 Material Safety Data Sheet? 7 A. No. 8 Q. I believe you testified earlier 9 that some time in the mid 1970s you were made 10 aware that benzene was a suspected carcinogen 11 and that there was -- there were members in 12 the scientific community who were looking 13 into that issue. Do you recall that 14 testimony? 15 A. Yes. 16 Q. You've also made it clear 17 through your prior testimony that there were 18 other individuals on the other side of that 19 issue, that -- scientists who were good 20 people, who were looking at the issue who 21 believed that there wasn't sufficient 22 evidence to conclude that exposure to benzene 23 could cause cancer or leukemia. True? 24 MR. DuPONT: Objection to form. 25 THE WITNESS: Correct. 171 1 JOHN MASAITIS 2 BY MR. NEUER: 3 Q. We looked at the Material 4 Safety Data Sheets that U.S. Steel put 5 together. And it wasn't until 1982 that 6 there was a specific warning that indicated 7 that there could be an association. We just 8 discussed that; correct? 9 A. Yes. 10 Q. If during the 1970s you or 11 others at U.S. Steel believed that there was 12 sufficient evidence in the scientific 13 community to have an association or created a 14 link between exposure to benzene and certain 15 types of cancer, would that have been 16 included in the Material Safety Data Sheet? 17 MR. DuPONT: Objection to form. 18 THE WITNESS: Yes. 19 BY MR. NEUER: 20 Q. Certainly by 1982, United -21 U.S. Steel and USS Chemicals came to the 22 conclusion that there was sufficient evidence 23 to include it in the Material Safety Data 24 Sheet. True? 25 A. Yes. 172 1 JOHN MASAITIS 2 Q. And I believe you'd indicated 3 you're unaware of any earlier Material Safety 4 Data Sheet that would have given that 5 disclosure; correct? 6 A. Yes. 7 Q. Now, in your book of documents 8 that you prepared for your deposition, you 9 were given a letter that was written by the 10 State of Illinois to a company called 11 Handschy, that informed Handschy that benzene 12 was a suspected carcinogen. Do you recall 13 seeing that letter? 14 A. Yes. 15 Q. That was one of the things that 16 was provided to you in preparation for your 17 deposition here today; correct? 18 A. Yes. 19 Q. Now, with respect to what 20 Handschy did in response to that letter, you 21 don't have any information about that because 22 you weren't given any of the depositions that 23 were taken of the corporate representative or 24 representatives of Handschy; correct? 25 A. I think in the material there 173 1 JOHN MASAITIS 2 was a letter from Handschy back to the 3 Department of Illinois stating what they were 4 going to do. 5 Q. With respect to anything else 6 that they would have done in terms of taking 7 benzene out of all of their products or some 8 of their products, you're unaware of that. 9 True? 10 A. Yes. 11 Q. Okay. But what we have here in 12 terms of the evidence that's before you is, 13 we know that you were aware that benzene was 14 a suspected carcinogen in the mid-seventies. 15 And we know that Handschy was told that 16 benzene was a suspected carcinogen in 17 approximately 1967. True? 18 A. Yes. 19 Q. But we also know, to be fair to 20 everyone, that the issue about whether or not 21 benzene was, in fact, a carcinogen that could 22 have caused certain types of leukemia was an 23 issue that was being debated through the mid 24 to late 1970s; correct? 25 MR. DuPONT: Objection to form. 174 1 JOHN MASAITIS 2 THE WITNESS: Yes. 3 BY MR. NEUER: 4 Q. We've seen -- we've discussed 5 the fact that in 1977 OSHA had an emergency 6 standard that reduced the level at which -7 people were allowed to be exposed to benzene 8 in the workplace. We've talked about that, 9 have we not? 10 A. Yes. 11 Q. And that standard went from 10 12 parts per million down to one part per 13 million; correct? 14 A. The emergency temporary 15 standard, yes. 16 Q. And we also know through your 17 prior testimony that that standard was 18 actually challenged by certain trade 19 associations that took the position that the 20 evidence upon which OSHA made that decision 21 wasn't sufficient to actually change the 22 standard; correct? 23 A. Correct. 24 MR. DuPONT: Objection to form. 25 BY MR. NEUER: 175 1 JOHN MASAITIS 2 Q. That was the position that was 3 taken by some trade associations and other 4 scientists in the community; correct? 5 A. Yes. 6 MR. DuPONT: Objection to form. 7 BY MR. NEUER: 8 Q. Now, you know that there were 9 good people on both sides of that debate, 10 were there not? 11 A. Yes. 12 MR. DuPONT: Objection to form. 13 BY MR. NEUER: 14 Q. There was simply a disagreement 15 in the scientific community as to what the 16 state of the art was in the late 1970s. 17 True? 18 MR. DuPONT: Objection to form. 19 THE WITNESS: That's correct. 20 BY MR. NEUER: 21 Q. As far as what -- you were 22 asked some questions about what information 23 was actually provided to OSHA in order to 24 have OSHA take its position that the standard 25 should be lowered. Have you actually gone 176 1 JOHN MASAITIS 2 back and looked at what epidemiological 3 studies, or what particular studies OSHA was 4 relying on when it changed the standard? 5 A. No. 6 Q. Because I believe you were 7 asked some questions about whether or not 8 that literature definitively established a 9 link between benzene exposure and development 10 of cancer or certain types of leukemia. You 11 really don't know to what extent that 12 literature actually created a link or argued 13 that there was a link. True? 14 A. I don't recall. 15 Q. Were you part of the team that 16 decided in 1982 to include a warning that 17 exposure to benzene could result in anemia or 18 at least one type of leukemia? 19 A. I don't recall participating in 20 putting that Material Safety Data Sheet 21 together. 22 Q. Who were the individuals within 23 U.S. Steel who made that decision, do you 24 know? 25 A. I can't say for sure. It could 177 1 JOHN MASAITIS 2 have been a joint effort. 3 Q. As you sit here today, do you 4 know that there is still a debate in the 5 medical and scientific community as to what 6 levels of exposure of benzene can actually 7 cause disease? 8 MR. DuPONT: Objection to form. 9 THE WITNESS: I haven't given it 10 much thought through the last couple 11 days. I'm sure that there is some 12 debate. 13 BY MR. NEUER: 14 Q. As you sit here today, do you 15 know that there is a debate as to whether or 16 not exposure to benzene can even cause 17 certain types of leukemia? Do you know if 18 that debate currently exists? 19 A. I'm not aware of it, no. 20 Q. All right. Sir, those are all 21 the questions I have. I want to thank you 22 for your time. 23 VIDEO TECHNICIAN: The time is 24 1:37, we're now off the record. 25 - - - 178 1 JOHN MASAITIS 2 (Discussion held off the 3 record.) 4 --5 VIDEO TECHNICIAN: We're now 6 back on the record, the time is 1:38. 7 BY MR. REILLY: 8 Q. Mr. Masaitis, Jim Riley for 9 Radiator Specialty Company. And I want to 10 address probably three brief questions 11 pertaining to Exhibit 18, the safety data 12 sheet for raffinate. My first question, am I 13 correct or not that U.S. Steel sold raffinate 14 to its customers in thousands of gallons? 15 A. Yes. 16 Q. Am I correct or not that 17 raffinate, in thousands of gallons, was 18 shipped to its customers by tank cars? 19 A. Correct. 20 Q. And pertaining again to the 21 Safety Data Sheet for raffinate, does that 22 Safety Data Sheet on page five talk about the 23 cleaning procedures for the tank cars for the 24 thousands of gallons of raffinate that would 25 have been shipped to its customers? 179 1 JOHN MASAITIS 2 A. Yes. 3 Q. That's all the questions I 4 have, sir. Thank you very much. 5 VIDEO TECHNICIAN: Off the 6 record. 7 --8 (Discussion held off the 9 record.) 10 - - 11 VIDEO TECHNICIAN: We're now 12 back on the record. 13 BY MR. DuPONT: 14 Q. Mr. Masaitis, Mr. Neuer asked 15 you questions regarding trade organizations 16 that -- or trade associations that fought 17 OSHA's determination in 1977 to list benzene 18 as a carcinogen and lower the permissible 19 exposure level. 20 MR. CAIRONE: Object to the 21 form. 22 BY MR. DuPONT: 23 Q. Do you recall that? 24 MR. CAIRONE: Object to the 25 form. I don't think he ever said 180 1 JOHN MASAITIS 2 fought. 3 BY MR. DuPONT: 4 Q. They disputed OSHA's 5 determination. 6 A. Yes, I recall that line of 7 questioning. 8 Q. All right. And he used the 9 words trade associations. And, to be fair, 10 let's talk about who those trade associations 11 were. They were the American Petroleum 12 Institute; correct? 13 A. Well, actually they're referred 14 to as industrial associations. 15 Q. Industrial associations; right? 16 A. Yes. 17 Q. The American Petroleum 18 Institute; correct? 19 A. Yes. 20 Q. The Manufacturing Chemists 21 Association; correct? 22 A. Yes. 23 Q. The American Iron and Steel 24 Industry; correct? 25 A. No. 181 1 JOHN MASAITIS 2 Q. No? 3 A. No. 4 Q. Okay. Well, we know at least 5 the Manufacturing Chemists Association and 6 the American Petroleum Institute. 7 A. I was going to correct you 8 before. It's the American Iron and Steel 9 Institute. 10 Q. Institute. Thank you for 11 correcting that, I appreciate it. But you 12 know who I've been talking about; correct? 13 A. (No response.) 14 Q. Okay. Sir, when I referred to 15 the American Iron and Steel Institute -16 excuse me, when I referred to the American 17 Iron and Steel Industry, did you understand 18 that I was talking about the American Iron 19 and Steel Institute? 20 A. I sort of figured you were. 21 Q. Thank you. 22 All right. So these were the 23 trade associations that were fighting and 24 disputing OSHA's determination to lower the 25 permissible exposure limit; the American 182 1 JOHN MASAITIS 2 Petroleum Institute and the Manufacturing 3 Chemists Association; correct? 4 MR. SYKES: Object to the form. 5 THE WITNESS: I -- the 6 organizations were participating in 7 the rule making process to establish 8 regulations pertaining to benzene. I 9 don't think I would use the term 10 fighting it. 11 BY MR. DuPONT: 12 Q. Okay. All right. These were 13 organizations that represented companies that 14 manufactured and sold benzene; correct? 15 A. Yes. 16 Q. And part of the issue in the 17 rule making process, as you're aware, was 18 that it was going to cost these companies 19 that made and sold benzene a significant 20 amount of money if the exposure levels were 21 lower than 10 to one part per million; 22 correct? 23 A. It was going to cost them a 24 significant amount of money, but that wasn't 25 the only reason why they participated in the 183 1 JOHN MASAITIS 2 rule making and challenging the standard. 3 Q. One of the issues was that it 4 was going to cost them a lot of money to 5 comply with the new standard; correct? 6 A. Yes. 7 Q. Now, U.S. Steel, United States 8 Steel Company, has dealt with issues in the 9 past, well before 1977, concerning the 10 classification of chemicals as carcinogens. 11 Is that correct? 12 A. Can you repeat that? 13 Q. Sure. Has U.S. Steel, in fact, 14 prior to 1977, dealt with the issue of 15 classifying chemicals as carcinogens? 16 MR. CAIRONE: Object to the 17 form. 18 THE WITNESS: I would say it's 19 possible, but here again, as I sit 20 here today, thinking about dates and 21 what other procedures we were involved 22 in, I can't say for sure. I just -23 specific dates. 24 BY MR. DuPONT: 25 Q. A few more questions. 184 1 JOHN MASAITIS 2 I hand you a document that was 3 produced to us in the course of discovery. 4 It's Bates Number USS 16982. This is a 5 letter from the Director, Coal Chemicals 6 Sales Division at United States Steel Company 7 to Mr. E.C. Myers, the Assistant to the Vice 8 President, Industrial Relations of the United 9 States Steel Company. Is that correct? 10 A. Yes. 11 Q. And this letter is dated 12 November 13th of 1952; is that correct? 13 A. Yes. 14 Q. And at this point in time, in 15 review of the records, there is an issue as 16 to whether coal tar should be classified as a 17 carcinogen; is that correct? 18 A. Yes. 19 Q. Now, in fact, the letter in the 20 first paragraph says, from the Director of 21 the Coal Chemical Sales Division to the 22 Assistant Vice President of Industrial 23 Relations at United States Steel Company, it 24 says, "In our conversation the other day we 25 discussed a letter to you from Tom Kinsella, 185 1 JOHN MASAITIS 2 president of Barrett, regarding the 3 industrial cancer hazard of coal tar and its 4 products." Did I read that correctly? 5 A. Yes. 6 Q. Can you go to the last full 7 paragraph of this document and read the first 8 sentence of that paragraph into the record, 9 the one that starts with, "The public health 10 services." 11 A. It says, "The public health 12 services requirements on the use and labeling 13 of benzol has had a direct effect on the sale 14 of this product." 15 Q. And benzol is synonymous for 16 benzene, is it not? 17 A. Yes. 18 Q. Thank you. 19 - - 20 MR. NEUER: I forgot to ask him 21 something about the '71/'72 Material 22 Safety Data Sheet. 23 (Discussion held off the 24 record.) 25 BY MR. NEUER: 186 1 JOHN MASAITIS 2 Q. Sir, you're looking at what's 3 been previously marked Exhibit 3 to your 4 deposition. And this is the Material Safety 5 Data Sheet that you looked at earlier, that I 6 believe up in the lefthand corner is dated 7 1971. Do you see that, sir? 8 A. Yes. 9 Q. I forgot to ask you about this. 10 Again, I'm the lawyer who represents T H 11 Agriculture and Nutrition. Do you see that 12 this is a Material Safety Data Sheet that was 13 issued by USS Chemicals? 14 A. Correct. 15 Q. As the manufacturer of the 16 product that's identified as benzene, benzol. 17 Do you see that? 18 A. Yes. 19 Q. Do you see also that it has a 20 stamp on it that says, Thompson-Hayward 21 Chemical Company in the righthand corner? 22 A. Yes. 23 Q. And have you been made aware, 24 sir, through your preparation of this 25 deposition, that the Bates label number down 187 1 JOHN MASAITIS 2 at the bottom of that exhibit says, HD 3 000649, and that's an indication that it was 4 actually filed in the files of Handschy? 5 A. Correct. 6 Q. It is correct that this is the 7 way the system was supposed to work. A 8 manufacturer, if they provided a Material 9 Safety Data Sheet to a distributor, it was 10 expected the distributor would then forward 11 that Material Safety Data Sheet on to the end 12 user; correct? 13 A. Yes. 14 Q. So this is an indication that 15 the system worked as it was designed to work, 16 and that Thompson-Hayward Chemical Company 17 did what you would expect a reasonably 18 prudent distributor to do. True? 19 A. Yes. 20 Q. Those are all the questions 21 that I have. Thank you, sir. 22 - - 23 MR. SYKES: Mr. Masaitis will 24 reserve and exercise his right to 25 review the transcript. 188 1 JOHN MASAITIS 2 VIDEO TECHNICIAN: The time is 3 1:47. This concludes today's 4 deposition. 5 --6 (Whereupon the document was 7 marked, for identification purposes, 8 as Masaitis Exhibit Number 19.) 9 --10 (Witness excused.) 11 - - 12 (Deposition concluded at 1:47 13 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 189 1 JOHN MASAITIS 2 CERTIFICATE 3 COMMONWEALTH OF PENNSYLVANIA: 4 COUNTY OF PHILADELPHIA: 5 6 I, Brigitte A. Strain, a Notary Public within and for the County and State 7 aforesaid, do hereby certify that the foregoing deposition of JOHN B. MASAITIS, was 8 taken before me, pursuant to notice, at the time and place indicated; that said deponent 9 was by me duly sworn to tell the truth, the whole truth, and nothing but the truth; that 10 the testimony of said deponent was correctly recorded in machine shorthand by me and 11 thereafter transcribed under my supervision with computer-aided transcription; that the 12 deposition is a true record of the testimony given by the witness; and that I am neither 13 of counsel nor kin to any party in said action, nor interested in the outcome 14 thereof. 15 WITNESS my hand and official seal this 26th day of November, 2010. 16 17 18 _________________________ 19 Brigitte A. Strain, RPR, CLR Notary Public 20 21 22 23 24 25 190 1 JOHN MASAITIS 2 INSTRUCTIONS TO WITNESS 3 4 Please read your deposition over 5 carefully and make any necessary corrections. 6 You should state the reason in the 7 appropriate space on the errata sheet for any 8 corrections that are made. 9 After doing so, please sign the errata 10 sheet and date it. 11 You are signing same subject to the 12 changes you have noted on the errata sheet, 13 which will be attached to your deposition. 14 It is imperative that you return the 15 original errata sheet to the deposing 16 attorney within thirty (30) days of receipt 17 of the deposition transcript by you. If you 18 fail to do so, the deposition transcript may 19 be deemed to be accurate and may be used in 20 court. 21 22 23 24 25 191 1 JOHN MASAITIS 2 ----- ERRATA 3 ----4 PAGE LINE CHANGE 5 ___ ___ ________________ 6 Reason for 7 Change:____________________________________ 8 ___ ___ ________________ 9 Reason for 10 Change:____________________________________ 11 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 12 Reason for 13 Change:____________________________________ 14 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 15 Reason for 16 Change: ___________________________________ 17 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 18 Reason for 19 Change: ___________________________________ 20 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 21 Reason for 22 Change: ___________________________________ 23 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ 24 Reason for 25 Change: ___________________________________ 192 1 JOHN MASAITIS 2 3 ACKNOWLEDGMENT OF DEPONENT 4 I, ______________________, do 5 hereby certify that I have read the foregoing 6 pages __ to ___ and that the same is a 7 correct transcription of the answers given by 8 me to the questions therein propounded, 9 except for the corrections or changes in form 10 or substance, if any, noted in the attached 11 Errata Sheet. 12 13 __________ ________________________ 14 DATE SIGNATURE 15 16 Subscribed and sworn to before 17 me this 18 ____________ day of ______________, 2010. 19 20 My commission expires: 21 _________________ 22 23 ____________________________ 24 Notary Public 25 156757 193