Document Y9MnnVBp6m1rdd5wjaxrjzyE

1 SUPREME COURT OF THE STATE OF NEW YORK 2 COUNTY OF ERIE : CIVIL TERM : PART 2 3 JAMES W. GINTER, 4 Plaintiff, 5 -vs- Index #4061-2010 6 FORD MOTOR COMPANY, 7 8 9 Defendant. Erie County Hall Buffalo, New York June 27, 2011 10 BEFORE: 11 HONORABLE JOHN P. LANE, Judicial Hearing Officer 12 13 APPEARANCES: 14 MICHAEL A. PONTERIO, ESQ., 15 KEITH R. VONA, ESQ., Appearing on behalf of the Plaintiff. 16 17 BRIAN P. CROSBY, ESQ., C. CHRISTOPHER BRIDGE, ESQ., 18 Appearing on behalf of the Defendant. 19 20 21 22 23 24 25 176 LYNN M. RICKETTS Supreme Court Reporter 1 INDEX TO WITNESS ES 2 3 WITNESSES 4 DIRECT CROSS REDIRECT RECROSS 5 JAMES W. GINTER 180 293 6 JERROLD ABRAHAM 7 299 355 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 177 LYNN M. RICKETTS Supreme Court Reporter 1 INDEX TO EXHIBITS 2 3 PLAINTIFF'S 4 FOR ID IN EVID >0 1 v1 5 5-Model of Lung 6 6-USCA 6-A Section of USCA 7 7-Guidance for Preventing Asbestos 8 8-9 Two Slides 10-Letter dated 9-10-10 9 11-14 Four Slides 301 306 322 324 327 330 330 330 325 330 355 10 11 DEFENDANT'S 12 A 13 C-Deposition Transcript 206 D-Raw Material Pur Record 227 14 E-Answer to Interrogatories 227 F-Brake Shoe 270 15 G-Piece of 8th of Inch Paper 272 H-Performance Evaluation 287 16 I-Performance Evaluation 287 J-Journal Article 363 17 287 273 291 291 18 19 20 21 22 23 24 25 178 LYNN M. RICKETTS Supreme Court Reporter PROCEEDINGS 179 1 THE COURT: Bring the jury in. 2 COURT CLERK: Please answer when your name is 3 called. 4 (Roll call taken) 5 COURT CLERK: All jurors present, all counsel 6 present. 7 THE COURT: All right. Good morning, members 8 of the jury. We were a few minutes behind here but 9 we're going to get rolling. In the morning when you 10 report I want you to go directly in the room. The 11 reason I do that, I know it's a little, kind of small 12 room, but the reason I want you to do that is it avoids 13 the possibility that a witness or somebody else in the 14 hallway that's going to testify might start talking in 15 your presence about the case. So please when you come 16 here in the room and we'll try to -- when we say we're 17 going to start at 9:30, we're going to try to do that. 18 Unfortunately we were delayed a few minutes today but 19 we're ready to go. All right. Let's go. 20 MR. VONA: Judge, may Mr. Ginter take the 21 stand again? 22 THE COURT: Yes. 23 COURT CLERK: Mr. Ginter, you're reminded you 24 remain under oath. 25 THE WITNESS: Yes. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 180 1 JAMES W. GINTER, after already having been first duly sworn, 2 was examined and testified further as follows: 3 MR. CROSBY: May I proceed, Your Honor? 4 THE COURT: Yes. 5 MR. CROSBY: Thank you. I think I'll use the 6 microphone this morning. There seemed to be some 7 difficulty hearing me the other day. 8 THE COURT: There's a lot of volume in here 9 with the high ceiling. 10 CONTINUED CROSS EXAMINATION 11 MR. CROSBY: 12 Q. Mr. Ginter, when we broke on Friday, you had told us 13 about various exposures that you had had over your career to 14 asbestos or asbestos containing materials, is that correct? 15 A. Yes. 16 Q. If I understand your testimony and the questions from 17 your attorney, it is your position that a number of 18 different entities are responsible for your mesothelioma, 19 one of which you say is Ford? 20 MR. VONA: Object to form. Calls for a legal 21 conclusion. 22 THE COURT: Pardon? 23 MR. VONA: Object to form. It calls for a 24 legal conclusion. 25 THE COURT: Read the question back. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 181 1 (Whereupon the reporter read back the 2 pending question) 3 THE COURT: Objection is sustained. 4 MR. CROSBY: May we approach for a moment, 5 please? 6 THE COURT: Certainly. 7 (Whereupon a bench conference was held). 8 BY MR. CROSBY: 9 Q. Mr. Ginter, you agree with me that you have made 10 claim against a number of different corporations for 11 responsibility for your asbestosis? 12 A. That's correct. 13 Q. And if I were to read a list of companies, would you 14 agree with me these are the companies against whom you made 15 such a claim: Anderson & Vreeland Incorporated? 16 A. Yes. 17 Q. Asbestos Corporation Limited? 18 A. I'm not sure of that name. 19 Q. Bondex International? 20 A. No. 21 Q. All right. Borg-Warner Corporation? 22 A. Yes. 23 Q. Fisher Scientific Corporation? 24 A. Yes. 25 Q. Ford Motor Company who's here today? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 182 1 A. Yes. 2 Q. Frontier Insulation Contractors? 3 A. No. 4 Q. Garlock Sealing? 5 A. No. 6 Q. General Electric Company? 7 A. No. 8 Q. No? 9 A. No. 10 Q. Hedman Resources Limited? 11 A. Yes. 12 Q. Georgia-Pacific Corporation? 13 A. Yes. 14 Q. Honeywell Division of Allied a successor to Bendix? 15 A. Yes. 16 Q. And Bendix was a brake manufacturer, correct? 17 A. Yes. 18 Q. Industrial Insulation Sales? 19 A. No. 20 Q. Insulation Distributors, Inc.? 21 A. No. 22 Q. McLaughlin Insulation Company? 23 A. No. 24 Q. Niagara Insulation, Inc.? 25 A. No. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 183 1 Q. Didn't you testify that Niagara Insulation, Inc. was 2 the contractor that was working doing insulation work at 3 Allied? 4 A. No, I dd not. 5 Q. Plastic Engineering Company? 6 A. Yes . 7 Q. Pneumo Abex, same company? 8 A. Yes . 9 Q. Reichhold Incorporated? 10 A. Yes . 11 Q. Rogers Corporation. 12 A. Yes . 13 Q. And United Gilsonite? 14 A. Yes . 15 Q. And are all those corporations suppliers of materials 16 that you believe to have contained asbestos that you have 17 ingested over the course of your career? All but Ford Motor 18 Company? 19 A. I don't understand the question there, sir. 20 Q. Let me rephrase it. Is it true that you have made 21 claim that all of those companies with the exception of Ford 22 have either supplied asbestos or supplied materials or 23 supplied products that contained asbestos - 24 A. Yes. 25 Q. -- that you were exposed to? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 184 1 A. I was exposed to, yes. 2 Q. Okay. Now, I want to talk about that exposure. And 3 go back to the beginning. Your first exposure that you've 4 talked about to asbestos that you're aware of was in your 5 teenage years, is that correct? 6 A. Yes. 7 Q. And that was when you were living on South Ogden 8 Street? 9 A. In my parents' home, yes. 10 Q. Parents' home. And at that time you were involved in 11 some construction work at your parents' home? 12 A. Yes. 13 Q. You were rebuilding some walls with plaster and 14 plasterboard? 15 A. One wall, yes. 16 Q. And that in the course of that you utilized a product 17 called Georgia-Pacific joint compound, is that correct? 18 A. Yes. 19 Q. And that joint compound is your understanding or your 20 claim contained asbestos? 21 A. That's my understanding, yes. 22 Q. And you're involved in sanding and other preparation 23 and construction work with that product? 24 A. Yes. 25 Q. And that it created dust? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 185 1 A. It did. 2 Q. And that you breathe in that dust? 3 A. That would be my expectation, yes. 4 Q. And that's your recollection I take it? 5 A. Well, I don't remember breathing it in but I expect I 6 did breathe some in. 7 Q. And then you had another project at 145 Hagen Street? 8 A. Yes. That was my first home after I got married. 9 Q. And again you utilized Georgia-Pacific joint 10 compound? 11 A. Yes, in one instance. 12 Q. Did you use other joint compound as well? 13 A. I used joint compound from UGL on another project. 14 Q. Well, let's stick with 145. Were you using 15 Georgia-Pacific joint compound there? 16 A. I believe so, yes. 17 Q. And the same effect, created dust as you sanded it? 18 A. Yes. 19 Q. And how many times would you have to sand the 20 particular joint, for example, before it was completed? 21 A. Typically three times. 22 Q. Okay. So it would be over, what, a three day period? 23 A. Several days. 24 Q. Okay. And then you did some work at 23 Honduras 25 Lane, is that correct? LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 186 1 A. Yes. 2 Q. And that particular project, did you utilize 3 insulation? 4 A. No. Oh, insulation? No, I did not. 5 Q. Was insulation installed while you were in the room? 6 A. Yes. Well, I don't know if I was in the room but it 7 was installed by the contractors that I hired. 8 Q. Was it exposed for a period of time? 9 A. I can't recall. 10 Q. And you recall what kind of insulation it was? 11 A. I think it was -- I think it was fiberglass, Corning. 12 Q. And did you also utilize joint compound there? 13 A. Yes, on one wall. 14 Q. And that was UGL, correct? 15 A. I believe so. 16 Q. And is it your understanding that that contained 17 asbestos as well? 18 A. I later found out I did. 19 Q. And again you were exposed to dust over a number of 20 days? 21 A. Yes, several days for short periods of time each day. 22 Q. Have you done any construction projects since your 23 work at 23 Honduras? 24 A. That was in the mid '80s. I think that was my last 25 exposure. But excuse me, I have to make a correction. I'm LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 187 1 not certain that the joint compound that I used in the 2 '80s -- as a matter of fact I think the joint compound in 3 the '80s I'm told did not contain asbestos. 4 Q. What's the source of that knowledge? 5 A. I'm not certain. 6 Q. So you don't know whether it did or it didn't? 7 A. I'm told -- I'm told it did not. I was told it did 8 not contain asbestos after a certain time. And I used it in 9 the middle '80s. 10 Q. Okay. Then you told us you went to work at Allied 11 Chemical Corporation, is that correct? 12 A. Yes, in 1968. 13 Q. And in 1968 you were a lab analyst there? 14 A. Yes. 15 Q. And over the four months approximately you were 16 there? 17 A. Three. 18 Q. Three months. It was essentially a semester I think 19 you told us? 20 A. Yes. 21 Q. You were exposed to asbestos in equipment at the 22 facility? 23 A. I was in proximity of people doing work on piping 24 that I found out later was wrapped with asbestos. 25 Q. We'll get to that in a moment. Weren't you also LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 188 1 utilizing glassware, beakers, glass, Bunsen burners, hot 2 plates? 3 A. I was utilizing all those items. 4 Q. And haven't you testified that they all contained 5 asbestos? 6 A. No. The beakers and glassware and such didn't 7 contain asbestos. The forceps if they were hot and came 8 from an oven, then I used equipment to retrieve it from the 9 oven either a glove or some forceps and those items, while I 10 later found out were tipped or insulated at the tips with 11 asbestos to prevent direct contact between the metal forceps 12 and the hot glass. But the glassware itself did not contain 13 asbestos. 14 Q. But the equipment you were utilizing with gloves, 15 forceps, the hot plate - 16 A. I don't know if the hot plate contained asbestos. 17 Nor do I know for sure if the gloves contained asbestos. 18 Q. Well -- 19 A. They were insulated, heavily insulated. 20 Q. Was it your understanding -- is it your understanding 21 that they did contain asbestos? 22 A. I'm not sure if it contained asbestos. That's my 23 understanding that the forceps and the other utensils that I 24 used to handle hot equipment contained asbestos but I'm 25 uncertain of the gloves. They could be fiberglass. They LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 189 1 were heavy, heavy gloves. Insulated. And as far as the hot 2 plates, I have no knowledge whatsoever if that contained 3 asbestos. 4 Q. How but the Bunsen burner pads, you testified that 5 they were white, chalky and dusty and you believe that was 6 asbestos? 7 A. I later found out that was asbestos. And if you 8 dropped it or handled it roughly, pieces would break off 9 from it and, yes, there would be possibly some asbestos dust 10 in the air. 11 Q. It was friable? 12 A. It was friable if it was handled roughly. 13 Q. And you saw it flake away? 14 A. If you dropped it. 15 Q. And who was your understanding was the supplier of 16 those pieces of equipment? 17 A. In the places I worked I think it's generally an 18 available laboratory item. Probably available from many 19 suppliers. But in my case we had an urging, an urging if 20 you will from purchasing to use Fisher Scientific as our 21 source and if things weren't available from Fisher then we 22 certainly can get items from other suppliers. 23 Q. Was it your understanding that the equipment that 24 contained asbestos that you were utilizing came from Fisher? 25 A. That's my understanding. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 190 1 Q. And do you know who it was manufactured by? 2 A. No, I don't. 3 Q. Now, you also indicated that in addition to that 4 there was an ongoing project having to do with pipe removal 5 and removal of asbestos around the pipes and replacement of 6 asbestos around the pipes, correct? 7 A. Well, I can't speak to the removal of the asbestos, 8 no, from the pipes. I can only speak to the installation of 9 new pipes which were then moved into position. 10 Q. Didn't you see them take down the old pipes? 11 A. I saw them take down the old pipes but I didn't see 12 them remove the asbestos. 13 Q. And am I correct this pipe insulation created dust? 14 A. It created dust when it was hacksawed and fit to the 15 contours of the piping. 16 Q. And you recall who the installer was? 17 A. I recall it was Buffalo Insulation. 18 Q. And that's one of the parties against whom you've 19 made a claim? 20 A. Yes. 21 Q. Okay. And do you recall breathing in that dust? 22 A. I have no specific recollection of it, actively 23 breathing it in, no. I was in proximity to the work that 24 was being conducted. 25 Q. Didn't you testify, sir, at a video taped deposition LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 191 1 that the pipe insulation created dust which you breathed in? 2 A. I said it was likely that I did, but I have no 3 recollection of breathing it in. It was -- I was in 4 proximity to the work that was being conducted. 5 Q. And this work was going on the entire three months 6 you were there? 7 A. I don't -- it was going on and I'm sure on a regular 8 basis throughout that period I observed it a couple, three 9 times maybe. 10 Q. Didn't you testify, sir, in your video deposition 11 that you were in the area where this was being done twice a 12 week during the three months that you were there? 13 A. No, sir. I would go to the plant twice a week on 14 necessary occasions to retrieve samples and on various 15 excursions to the plant I would see work being performed. 16 On some of those occasions I would stop and make some 17 observations with a colleague that was also standing around. 18 We were both sort of acting like sidewalk superintendents 19 and I would spend from a very few minutes depending on how 20 much time I had to maybe fifteen minutes and then I would 21 have to get my sample and get back to my work station. 22 Q. You recall testifying that pipe removal created dust 23 that you were breathing in as well? 24 A. I don't remember that testimony. 25 Q. We'll come back to that when we get a copy of your LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 192 1 deposition. 2 A. Sure. 3 Q. Let's move onto Spaulding Fiber Company. You were 4 there for again an interim semester, is that fair statement? 5 A. It was over the summer. 6 Q. Summer semester? 7 A. Of 1969. 8 Q. Again if you utilized heat and heat samples in your 9 lab? 10 A. We had ovens that would -- ovens and hot plates that 11 would heat samples and heat equipment and if it was hot we 12 oftentimes would use a utensil to retrieve it from the oven. 13 These utensils were coated or had a sleeve material which I 14 later found out was asbestos. 15 Q. And again, is it your claim that that asbestos was in 16 the atmosphere and you breathe it in while you were there? 17 A. I was in proximity to that material during the course 18 of my work experienced at Spaulding Fibre. 19 Q. Let me go back for a moment to your experience at 20 Allied Chemical. Sir, didn't you testify that you used 21 instruments and utensils that were needed to pick up hot 22 glassware and these utensils were often tipped with asbestos 23 to prevent heat to get through to the metal surface? 24 A. Yes. I believe that's why it was insulated. 25 Q. In the course of doing that they would shed dust and LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 193 1 the dust would be airborne and it would be in proximity to 2 that when you used the items? I believe that's what you 3 testified to. 4 A. Yeah. If they were handled roughly, if they were 5 dropped, sometimes pieces would flake off in the drawer if 6 they were in the drawer along with other metal utensils. 7 These -- just like silverware in the drawer they would slide 8 around and some pieces could get knocked off. 9 Q. Well, you said in the course of doing that and that 10 was using instruments and utensils to pick up hot glassware. 11 A. Yes, I did. 12 Q. Didn't you also testify that you would make trips to 13 the plant to retrieve samples and we would have work being 14 performed on various pieces of processed equipment. I would 15 see overhead piping being removed because it was plugged, is 16 that correct? 17 A. It may have been plugged. I know it was removed for 18 some reason. 19 Q. And that equipment was wrapped in a whiteish coating 20 that you later learned to be asbestos? 21 A. I testified to that, yes. 22 Q. So you did see asbestos on the pipes being taken down 23 as well as the pipes being put back up? 24 A. Well, I saw whiteish material which later I learned 25 was asbestos. At least the material that was being LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 194 1 reinstalled. I really can't comment on what was up there 2 and what was being dropped to the floor, over to the floor 3 with a chain hoist. 4 Q. Okay. And as to what was going to the floor, isn't 5 it a fact that the pieces would be suspended overhead and 6 dropped out of place, flanges were unbolted, the section of 7 pipe with the insulation was dropped and there would be 8 pieces of this white material falling down being scattered 9 about? 10 A. No, I didn't testify to that. 11 Q. You didn't. Okay. Again, you understand I'm asking 12 about your experience at Allied Chemical? 13 A. At Allied Chemical, okay. Yes. 14 Q. That's where the pipe work was being done? 15 A. Yes. 16 Q. While we're looking for that section, was anyone 17 other than Buffalo Insulation doing asbestos work at Allied 18 while you were there? 19 A. Not to my knowledge. 20 Q. We talked about Spaulding Fibre where you utilized 21 and had the same experience with regard to asbestos 22 equipment that you were utilizing, is that correct? 23 A. Yes. 24 Q. Okay. Then you went to work for Moore Business 25 Forms, didn't you? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 195 1 A. Yes, I did. 2 Q. And when you went to work for Moore Business Forms, 3 again, were you exposed to asbestos in the same way as in 4 the lab? 5 A. Yes, in the lab I believe the same way as we've 6 already discussed. 7 Q. Bunsen burner pads contained asbestos? 8 A. That's my understanding. 9 Q. They were manufactured by whom? 10 A. I don't know who manufactured them. 11 Q. Did you indicate in your deposition they were 12 manufactured by Fisher? 13 A. I indicated they were supplied by Fisher. 14 Q. Okay. How about the beaker tongs? 15 A. The same. 16 Q. You were also exposed to asbestos in the printing 17 press trials, were you not? 18 A. Yes. 19 Q. Tell the jury what the printing press trials were. 20 A. Well, from my project prospective we would be 21 evaluating the performance of an ink. The printing press 22 could be used for many different types of trials, but again, 23 I was there to evaluate some inks to see how they ran. And 24 it was often easier, less expensive certainly to run a trial 25 on a small pilot press than to take it out to production and LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 196 1 use large production piece of equipment. So we would 2 formulate a series of inks and take them to the area for 3 trial. Among that preparation, that preparation included 4 making a rubber mat from something called a matrix board. 5 Matrix board is a hard sheet if you will. It's fairly thin. 6 Maybe it's not quite 8th of an inch thick. Less in fact. 7 And it was -- and it was used to make an impression in a 8 rubber mat. And depending on the dimensions and the surface 9 texture of the matrix board, that's the impression that 10 would be on the rubber mat. If the matrix board had high 11 spots, then it needed to be sanded, and when that sanding 12 was done, it was blown off with air, air hose and then the 13 rubber mat was made to see if the dimensions were correct. 14 And that was done until everything was just right. And then 15 the mat was used to conduct a printing trial. 16 Q. And the matrix board contained asbestos, didn't they? 17 A. I later learned it contained asbestos. 18 Q. And it was your understanding that you were exposed 19 to asbestos and you breathed in asbestos while you were 20 there? 21 A. That would be my expectation. 22 Q. Well, in the course of getting the press ready to 23 run, you'd be in close proximity to the mats being made, 24 wouldn't you? 25 A. I observed the process. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 197 1 Q. By close proximity we're talking about within one or 2 two feet? 3 A. I would say from that distance on out to maybe five 4 or ten feet. But it would be in that range of distances. 5 Q. And as they sanded and cut, haven't you testified 6 that lots of dust would come off the mat? 7 A. I forget my exact words, but dust would come off the 8 mat as it was blown away with it with the air hose. 9 Q. Well, lots of dust would come off the mat and 10 subsequently they'd blow out the mat out with compressed 11 air? 12 A. Dust would come off when they took the mat off with 13 the compressed air. That's when the dust was generated. 14 Q. Wasn't the dust generated during the course of 15 sanding and cutting it? 16 A. There were some. 17 Q. And then it would be blown off into the room? 18 A. Yes. 19 Q. Where you would be standing? 20 A. I was in the room. 21 Q. And this would be done with some frequency, wouldn't 22 it. 23 A. They were -- anywhere from -- they got pretty good at 24 it. They did it all the time. But from maybe one to as 25 many of two or three times until they got the height LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 198 1 correct. 2 Q. Okay. And these printing press trials that you were 3 conducting, you would do them about twelve times a year, 4 wouldn't you? 5 A. Probably. Maybe twelve would be the most. Depending 6 on how many the project would run. I am speaking of a 7 project that would run as many as a dozen times I might be 8 there for the project. Bring new inks in. But if I didn't 9 have a project, I would have no need to go into that area. 10 Q. Well, didn't you say that the printing press trials 11 took place approximately a dozen times a year? Isn't that 12 what you testified to? 13 A. The project took place. The times I went into the 14 area to conduct my trials probably totaled about a dozen 15 times in the course of a year. 16 Q. Okay. 17 A. If I didn't have a project, then I wouldn't be in 18 there every year. 19 Q. So you were in there? 20 A. I didn't have a project every year of ink trials. 21 Q. So you were in there about a dozen times a year, 22 isn't that what you just said? 23 A. I was in there a dozen times over the course of a 24 project. 25 Q. And you were at Moore for six years, isn't that LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 199 1 correct? 2 A. That's right. 3 Q. And this was an ongoing process there, the matrix 4 boards? 5 A. For them, for the people that operated the press, 6 yes. Not for me. 7 Q. And it's your understanding that the matrix board 8 material was supplied by whom? 9 A. I later found out it was supplied by Anderson 10 Vreeland. 11 Q. Was it also supplied by Rogers Corporation? 12 A. I think they had some involvement, but I'm not 13 certain. 14 Q. Have you claimed that they did and that they were 15 responsible for providing asbestos that you ultimately 16 breathed in? 17 A. Again, I think they have some involvement with 18 Anderson Vreeland, but I'm not sure their relationship. 19 Q. By the way, when you would be in there you'd be in 20 there for a lengthy period of time, wouldn't you? 21 A. It would vary. 22 Q. Well, wouldn't you be there anywhere from one to four 23 hours? 24 A. That sounds right. 25 Q. So it wasn't just passing through? You were in that LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 200 1 in that room for a lengthy period of time on each occasion? 2 A. It was varying. And it was depending on the project. 3 If didn't have a project in ink, I wasn't in there. 4 Q. I'm just talking about when you were there. 5 A. Yes. 6 Q. And when you were there and this dust was being 7 created that you believe was asbestos latent, did you 8 utilize any mask or any protective equipment? 9 A. I don't recall using any mask or protective 10 equipment. 11 Q. And when the sanded or cut material that resulted in 12 the dust would be cleaned off, it would be cleaned off with 13 an air compressor? 14 A. A hose, yes. 15 Q. A hose. And would that disburse it all over the room 16 as well? 17 A. I'm sorry? 18 Q. Would that disperse it all over the room? 19 A. Undoubtedly. 20 Q. Now, after leaving Moore, you went to work for Hooker 21 or Occidental? 22 A. Hooker, but they changed their name to Occi. 23 Q. And that was in 1977, is that correct? 24 A. 1976. 25 Q. 1976. And your initial position was what? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 201 1 A. Technician. 2 Q. Staff technician? 3 A. I think I was hired as a technician and became staff 4 technician very soon thereafter. 5 Q. And your primary place of work was over on Grand 6 Island at the laboratory, correct? 7 A. Yes. 8 Q. But I think you told us that there were occasions 9 where you were on a project for Durez? 10 A. Yes. 11 Q. And you would be dispatched over to Durez's 12 facilities, is that correct? 13 A. That's correct. 14 Q. Okay. And you would go to their molding compound 15 laboratory, correct? 16 A. Yes. Among other places. 17 Q. And over that period of time when you were a 18 technician, do you agree with me that you were in buildings 19 that utilized asbestos in their compounds about ten times? 20 A. Approximately. Eight to ten times I would say. 21 Q. And what was the purpose of you going there? 22 A. Well, it was to follow-up on projects that were 23 assigned to our group out of Grand Island which was a 24 research group and the research group worked for the 25 divisions, Durez being one of the divisions and it was to LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 202 1 report on our project and also to observe their 2 manufacturing processes and laboratory processes as well. 3 Q. So your purpose in going over there if I understand 4 it was to view the trials that were being done and the 5 process of manufacturing? 6 A. They wouldn't necessarily be trials. They were 7 production runs. Sometimes they were small scale batch 8 preparations. 9 Q. And this had to do with the production of phenolic 10 resins? 11 A. No. 12 Q. Phenolic molding compounds? 13 A. Phenolic molding compounds, yes. 14 Q. Walk us through the process that would occur on these 15 visits. 16 A. Well, we would generally meet with one or more 17 individuals from their molding compound business area. 18 Could be one of their managers or chemists. It could be 19 some of their people in there analytical or testing 20 laboratories. And these would all be in different areas. 21 We'd start perhaps in a meeting room or finish in one of 22 their meeting rooms and then during the course of our visit 23 we would, we would make the rounds. We would go to a test 24 lab if need be. If we had to view a particular process and 25 one was running at the time, then we'd make an excursion to LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 203 1 see the process. 2 Q. I would like you to walk us through the process that 3 you observed. 4 A. Well, again, it depends on what we were there for. I 5 can outline the entirety of it which I wasn't necessarily 6 present for on every occasion. But the entirety of the 7 process would fundamentally include loading the raw 8 materials into a mixture. The product, the ingredients 9 would be blended for a time. And they would be conveyed to 10 a set of hot rolls and the rolls would mix and melt the 11 phenolic resin again acting as a binder and a glue. It 12 would melt the resin and incorporate the dry ingredients. 13 And after a certain length of time the sheet that was formed 14 from this rolling process was cut off and dropped into a 15 grinder and the grinder would grind it to size, a certain 16 size that was called often even times by the application or 17 by the customer. And then from the grinder it went into a 18 pack out which was either in drums or bags. 19 Q. Okay. And you believe you were exposed to asbestos 20 during this process, didn't you? 21 A. Not every process because not every process contained 22 asbestos. 23 Q. Well, let's cut right to it. You were there about 24 ten times, weren't you? 25 A. I would say approximately. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 204 1 Q. And didn't you say that the majority, the large 2 majority of those times you were observing a process that 3 involved asbestos? 4 A. I can't recall how many times it was containing 5 asbestos. 6 Q. Didn't you say six to eight of the ten? 7 A. That's sounds about right. 8 Q. Okay. And the time period that you were there was 9 one to four hours at a time, correct? 10 A. That's right. 11 Q. All right. And during every stage of the process 12 that you observed, a considerable amount of dust was kicked 13 up into the air, wasn't it? During every stage? 14 A. I wasn't there for every stage. 15 Q. Did you testify, sir, that during every stage of that 16 process that I observed, a considerable amount of dust was 17 kicked up into the air? 18 A. Each stage of the process had an opportunity to 19 distribute dust into the surrounding air whether it be 20 loading or the blending or the pack out. Each one had an 21 opportunity for this. 22 Q. From the time the products were charged to the 23 blenders and mixed, dust came out, correct? 24 A. Some dust came out, of course. 25 Q. Didn't you say, sir, that during the blending, during LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 205 1 the charging process that the charging process was a dusty 2 process, it kicked up a great deal of dust? 3 A. I'm not sure of the exact testimony, but it did kick 4 up dust. 5 Q. Didn't you also say when it went into the grinders it 6 would kick up more dust because now you're reducing this big 7 slab to small particles? 8 A. Particle size was approximately the size of aquarium 9 gravel. It had fine material that was finer than that and 10 there was material that was greater than that. So they 11 would screen out the fine material to a certain degree and 12 screen out the oversize and then they will pack out into 13 drums or bags the remainder. 14 Q. My question, sir, is when it went into the grinders 15 it would kick up more dust? 16 A. I said -- 17 Q. Is that correct? 18 A. Yes, it does kick up dust. 19 Q. Sir, didn't you also testify that the building was 20 literally full of dust? 21 A. I don't think it was full of dust. 22 Q. That's not what you said? 23 A. My recollection -- it depends on your identification 24 of full I suppose. 25 Q. Sir, let me -- LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 206 1 MR. CROSBY: Let's mark this first of all. 2 (Whereupon the reporter marked the 3 Deposition Transcript as Defendant's 4 Exhibit C for identification.) 5 BY MR. CROSBY: 6 Q. Mr. Ginter, do you recall testifying in the 7 deposition on May 10th, 2010? 8 A. I recall testifying, yes. 9 Q. And that deposition was under oath, was it not? 10 A. Yes, it was. 11 Q. And all of your testimony was taken down by a court 12 reporter similar to what we have here in the courtroom 13 today? 14 A. Yes. 15 Q. Okay. 16 MR. CROSBY: May I approach the witness, 17 please, Your Honor. 18 THE COURT: Yes. 19 BY MR. CROSBY: 20 Q. I have with me -- I marked the entire transcript. 21 And this is the first volume. And I'm going to turn your 22 attention - 23 THE COURT: What is the exhibit? 24 MR. CROSBY: Exhibit C, Your Honor. 25 THE COURT: Okay. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 207 1 BY MR. CROSBY: 2 Q. Turning your attention to Page 173 and do you recall 3 being asked this question, sir, at Line 7: So during the 4 blending process, that is a dusty process, question mark. 5 And giving this answer: During the blending, during the 6 charging process was it a dusty process. First of all they 7 had to charge the blenders with goods with a dry resin and 8 with dry fillers and with maximum waxes or any other 9 ingredients that the chemist would formulate or deemed 10 appropriate for the recipe. So then they blended it. They 11 kicked up a great deal of dust. The building was literally 12 full of dust. Isn't that what you said? 13 A. I'm recollecting that now sir. Thank you. 14 Q. And that was the condition that you encountered on 15 the six to eight visits of one to four hours when asbestos 16 was being blended, correct? 17 A. If I happened to be in the building when those 18 processes were being conducted. Now, I said I believe that 19 I wasn't there for every step of the process on every visit. 20 It's a long process making phenolic molding compounds and if 21 I happened to be there for just an hour that day, I 22 certainly couldn't see all the steps. 23 Q. Well, it's a long process, but one to four hours of 24 being in that process was an environment that was in a 25 building full of dust in a process that was spewing dust, LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 208 1 correct? 2 A. Not every step of the process was as dusty as other 3 steps. 4 Q. Sir, did you tell us when you would go into that 5 facility for those processes that you had coveralls over 6 you, is that correct? 7 A. Coveralls and a hard hat. 8 Q. And you had to have coveralls over your clothes but 9 when you wanted to leave the building you were just covered 10 with stuff. That's the dust, right? 11 A. That would be the dust, yes, from the building 12 process. 13 Q. So the operative procedure was to blow you down so 14 that your friend or the operator, somebody you know had a 15 hose or air hose and you stood there with your arms out and 16 he gave you a hosing and then you turned around and gave you 17 another hosing, right? 18 A. Yes. 19 Q. Did you also say dust was all over the place? 20 A. Depending on when I was there, yes. 21 Q. We're only talking about when you're there. 22 A. Depending on the time that I was there and depending 23 on the process that I observed. 24 Q. Did you also say that dust was on you when you were 25 sweating and you were sweating whether it was winter or LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 209 1 summer and stuff would be sticking to you? Did you testify 2 to that? 3 A. I did. 4 Q. And that was when they were doing a five step 5 process, raw filler which is mixing, right? 6 A. Yes. 7 Q. Mixing raw asbestos and other materials, right? 8 A. And other materials and mixers. 9 Q. Charging process? 10 A. Yes. 11 Q. Blending process, right? 12 A. Well, the blending is the mixing, sir. 13 Q. Didn't you say there were five steps? There's a raw 14 filler, there's a charging process? 15 A. No. 16 Q. There's a blending process, grinding process and pack 17 out process? 18 A. The filler and all the other dry ingredients 19 including the resin, including any other ingredients that 20 the chemist called for are charged to a mixture. They're 21 all mixed together at one time. They're all charged to the 22 heated rolls at one time. They were all blended on the 23 rolls. The blending process I think you're referring to is 24 different from the blender that is mixing the dry 25 ingredients. The materials are blended not only in the LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 210 1 mixtures, they're also blended on the hot rolls and they're 2 blended as the resin melts and coats the dry ingredients. 3 Q. Well, you agree with me there are five stages, five 4 steps, isn't that what you testified to? 5 A. I think there's a misinterpretation there, sir. 6 Mixing process of all the ingredients. There's a conveyance 7 to the hot rolls which blends the product. I think you're 8 perhaps misinterpreting the blending which occurs initially 9 on the dry ingredients in the mixers. 10 Q. Let's take it one step at a time. Haven't you told 11 us that during every stage of that process a considerable 12 amount of dust was kicked up into the air? Didn't you say 13 that? 14 MR. VONA: Asked and answered, judge. 15 THE COURT: Pardon? 16 MR. VONA: Asked and answered multiple times. 17 THE COURT: Overruled. 18 BY MR. CROSBY: 19 Q. Didn't you say that? 20 A. I'm sorry, could you repeat the question? 21 Q. During every stage of the process a considerable 22 amount of dust was kicked up into the air? 23 A. A considerable amount. 24 Q. Okay. From the time the products were charged to the 25 blenders and mixed, that's the first stage or the second LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 211 1 stage? 2 A. Yes, that's the first stage. 3 Q. Dust came out of that unit? 4 A. I used the term blender and mixer interchangeably. 5 Q. Dust came out of that unit? 6 A. Yes. During the course of charging the blender, that 7 generated some dust. 8 THE COURT: What does charging mean? 9 THE WITNESS: I'm sorry, it's adding the raw 10 materials. The ingredients that are part of the 11 recipe, the process of adding that to the blenders or 12 mixers. Again, I used that word -- those words 13 interchangeably. The process of adding those to the 14 mixer certificate is called charging. 15 BY MR. CROSBY: 16 Q. The materials would be dumped into it, wouldn't they? 17 A. They'd be added through a port that was usually a 18 couple of stories up in the building. 19 Q. Within the same room? 20 A. Well, no, there were different floors to the room, to 21 the building. 22 Q. But dust - 23 A. Charging floor, and you have a mixing floor where the 24 blenders are. You had the rolls on another floor down at 25 the bottom of the -- generally the bottom of the building. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 212 1 Q. Have you told us - 2 A. Different floors. 3 MR. VONA: I'm sorry, were you finished, 4 Mr. Ginter? Were you finished with your answer? 5 THE WITNESS: Yes, I'm finished now, thank 6 you. 7 BY MR. CROSBY: 8 Q. Is it a fact, sir, that were no air handling 9 equipment other than dust collector bags on the roof to 10 accommodate any of this dust? 11 A. I'm not familiar with the mechanics of the building 12 in great detail. 13 Q. Did you tell us that there was no air handling 14 equipment. 15 A. I said there was no air handling equipment in some of 16 the testing laboratories. I know there were -- there was 17 air handling equipment that went to dust collector bags on 18 the roof of the building. 19 Q. After it was in the blender it was dropped onto the 20 rolls, is that correct? 21 A. Yes. 22 Q. What are the rolls? Describe them. Tell us what 23 they are. 24 A. Well, they were about approximately six feet in 25 diameter. And there's two of them. They're in close LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 213 1 proximity to one another with a short narrow distance 2 between them, perhaps a quarter of an inch to a half an 3 inch. And the rolls turn at different speeds. And as the 4 dry materials come down from the blender and they drop onto 5 the hot rolls, the resin begins to melt and it begins to 6 flow and incorporate the dry materials and all the while 7 these rolls are turning, they're heated and the resin 8 melting incorporates everything into a uniform or what we 9 hope is uniform product. 10 Q. And didn't you tell us, sir, that as the material, 11 the raw material -- that contains the asbestos - 12 A. Yes. 13 Q. -- dropped out of the blender onto the rolls, more 14 dust was produced before the resin could soften enough to 15 travel? 16 A. That's true. But that was a very short term process. 17 The resin melted as soon as it saw and hit the hot rolls. 18 Q. And once they were mixed with the rolls, is that what 19 it's doing, it's mixing in the resin? 20 A. It's melting the resin and mixing intimately the 21 ingredients that's coming from the blender. 22 Q. The mixed property on the rolls was then moved to or 23 discharged to the grinders, correct? 24 A. Yes. 25 Q. And the grinders generated another level of dust, LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 214 1 correct? 2 A. Yes. 3 Q. That then was taken up into bags or drums? 4 A. Correct, after screening. 5 Q. And as the material came out of the hoppers into the 6 bags, more dust was generated? 7 A. Yes. 8 Q. In fact, so much was generated that there were layers 9 of dust on every surface imaginable in the building, isn't 10 that true? 11 A. Over a time and probably I would estimate three to 12 six months. There was enough dust collected on the surfaces 13 where they cleaned the building. 14 Q. Sir, you testified, did you not, that the bags, the 15 dust from the bags created layers of dust on every surface 16 imaginable in the building? Isn't that a fact? 17 A. Every horizontal surface. 18 Q. That was your observation, wasn't it? 19 A. Yes. 20 Q. Okay. So that's what you observed and that's what 21 you breathed when you were there? 22 A. I don't deny that. I testified to that last year. 23 Q. If you wanted to leave that building, you would have 24 to be dusted off, correct, before you went to lunch or break 25 or anything like that? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 215 1 A. Depends on what was going on in the building at the 2 time I was there. If I was there during a particular dusty 3 process or if I was there for a very long period of time, 4 say three or four hours, then that was the procedure. If I 5 was there for less time or if there wasn't a dusty process, 6 particularly dusty process being conducted at that time, 7 then, no, I wouldn't get dusted off. I'd walk in and out of 8 the building wearing my hard hat and safety glasses and 9 coveralls. 10 Q. Let's stick with the six to eight times that you were 11 there that they were mixing, molding, blending asbestos. 12 A. Okay. 13 Q. On those occasions didn't you wear coveralls? 14 A. That was a plant requirement. Sir, yes, I did. 15 Q. And on those occasions when you went, you wanted to 16 leave the building, didn't you have to get blown even if it 17 was just for a break? 18 A. No. Not every time. 19 Q. And you agree with me that asbestos was a particular 20 ingredient that was utilized with a lot of frequency in 21 building 88 where this was going on? 22 A. Yes, in building 88. 23 Q. And do you know who the supplier of the asbestos was? 24 A. No, I don't. 25 Q. Do you know whether it was from Hedman? LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 216 1 A. I know it would depend on the particular recipe that 2 was being conducted on that day. 3 Q. Was Hedman one of the suppliers? 4 A. I believe so. 5 Q. And that was when? 6 A. I'm sorry? 7 Q. What years was that? 8 A. I don't know the years of their supply position. 9 Q. The year that -- the years that you were there in 10 that facility under those conditions. 11 A. I don't know if they were supplying in that time 12 frame, sir. 13 Q. Well, was Hedman supplying in 1980 when you were on 14 the friction particle project? 15 A. No. 16 Q. They were not? 17 A. In 1980? No. 18 Q. Who supplied the asbestos that you say you were using 19 in the blending of the friction particle project materials? 20 MR. VONA: Judge, objection. Asked and 21 answered. This was asked and answered on Friday. 22 THE COURT: Well, I'm going to allow the 23 counselor to procedure. The jurors may have forgotten 24 some of it over the weekend. Frankly I have. 25 MR. VONA: Sure. Just making my objection, LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 217 1 judge. 2 THE WITNESS: I'm not sure of the supplier 3 then. I know the coated material was code 761. 4 BY MR. CROSBY: 5 Q. In 1979 was code 761 Hedman? 6 A. I don't know for sure. We weren't using asbestos at 7 Durez Manufacturing in 1979 or 1980. 8 Q. How about 1977 to 1979? 9 A. My understanding was that Durez was using asbestos in 10 manufacturing in those years. 11 Q. And who was supplying it? 12 A. Sorry, I don't know. I wasn't a member of Durez at 13 that time. 14 Q. So when you would go to observe the processes, would 15 you see asbestos in its raw form in bags or cans or 16 containers? 17 A. Not to my recollection, no. I think it might have 18 come from Asilo but I'm not certain about that either. 19 Q. Now, on any of these occasions when you were posted 20 with Occidental and would go over to Durez and be in this 21 dusty environment that we just described, did you ever wear 22 a mask or respirator? 23 A. On occasion I wore a mask but not a respirator. 24 Q. What do you mean by occasion? 25 A. Well, on occasion if I was in a particularly dusty LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 218 1 environment, I'd consider wearing a mask. 2 Q. Did you wear a mask? 3 A. On occasion, yes. 4 Q. How many times? 5 A. I don't recall. 6 Q. Did you have a mask that was given to you? 7 A. If I asked for one. 8 Q. So they were available? 9 A. If I asked for one they were available. They were 10 given depending on the process that was being conducted in 11 the building at the time. Not every step of the process was 12 as dusty as others. I think I mentioned that. 13 Q. Sir, let me ask you, in your deposition, were you 14 asked whether or not you ever wore a mask on your visits and 15 did you respond that you never wore a mask or respirator? 16 A. I know I never wore a respirator because they were 17 particular to the fit, your particular face. We did get 18 fitted for respirators some years later to mid to late '80s. 19 Q. Again, going to Exhibit 3, I'm sorry, Exhibit C your 20 deposition Page 179, were you asked the following question 21 and did you give the following answer: Starting at Line 13, 22 were you wearing or did you ever wear a mask or respirator 23 or any other type of facial protection when you observed 24 this work being done at the Walck Road Durez facility. 25 Answer no. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 219 1 A. I see. 2 Q. Have I read it correctly? 3 A. Yes, sir, you have. 4 Q. Was that your testimony? 5 A. It was. 6 Q. So even though masks were available, you chose on the 7 visits to that facility not to utilize them? 8 A. I seem to recall on certain occasions I did. 9 Q. That's different than your recollection a year ago? 10 A. Yes, sir. 11 Q. You then were transferred to Durez, correct, in 1979? 12 A. Yes. 13 Q. And you indicate that in 1979 Durez and Occidental 14 were not utilizing any asbestos in their manufacturing, is 15 that correct? 16 A. That's what my understanding is, yes. 17 Q. You were in a laboratory though, were you not, 18 laboratory and kind of a mini production facility? 19 A. For a portion of that time beginning in about 1981 20 perhaps plus or minus a little bit. I was in a -- I was 21 splitting my time between phenolic resins which was -- which 22 I started at my principle work and phenolic molding compound 23 as a trainee. 24 Q. Let's go back to 1979 when you first transferred over 25 there. Your desk was in building 22, was it not? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 220 1 A. Yes. 2 Q. You were in the industrial resins laboratory - 3 A. That's right. 4 Q. -- correct? And your project was to work on a resin? 5 A resin is a bonding agent? 6 A. It's a glue. It's a bonding agent, yes. 7 Q. For a wafer board. 8 A. Wafer board, yes. 9 Q. But you're testing, your laboratory was in the same 10 laboratory as the molding compound testing was going on, 11 correct? 12 A. No. 13 Q. No? Your wafer board testing was not in the same 14 building as the molding testing? 15 A. The products that I made wafer board were tested in 16 an area and also tested for phenolic molding compound. But 17 my laboratory was not in that area, sir. 18 Q. I don't mean to interrupt you. 19 A. Okay. 20 Q. Your testing was done in the same place as molding 21 compound testing was being done, correct? 22 A. Yes. 23 Q. And it's your belief or your claim that you were 24 exposed to asbestos during this testing, is that correct? 25 A. If I would be in the laboratory to observe the LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 221 1 testing of my wafer board, then I was in the same laboratory 2 that was testing phenolic molding compounds. 3 Q. And what in the testing of the molding compounds 4 would cause you to be exposed for asbestos? 5 A. If the molding compound laboratory was testing a 6 competitive material, there was a chance that that 7 competitive material contained asbestos. And therefore if I 8 were in the laboratory at the time that that particular 9 material was being evaluated, I would have had some exposure 10 to it simply by being in the same room. 11 Q. Well, the competitors' testing was going on right 12 next to where you were doing your testing, right? 13 A. If they were testing it at the time and I was in 14 there. I had many, many wafer board samples tested than 15 competitive molding compound containing asbestos, I can 16 assure you of that. 17 Q. You were there on a number of occasions where the 18 competitive molding compounds containing asbestos were being 19 tested? 20 A. At the time while I was testing wafer board I had no 21 knowledge of what was being tested alongside of my wafer 22 board. All I know is if they were testing competitive 23 materials and if the competitive materials contained 24 asbestos, and not all of them did, then I was in proximity 25 to that material as they were testing my wafer board LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 222 1 samples. 2 Q. Which of those competitors' products that were being 3 tested do you claim contained asbestos? 4 A. Well, at the time my understanding was -- 5 Q. I'm talking about now, sir. 6 A. Now? 7 Q. What do you claim today which of those products 8 contained asbestos? 9 A. Well, again, at the time those products that were 10 reported to contain asbestos or found that contained 11 asbestos came from Rogers Corporation and Plenco Corporation 12 and Reichhold Corporation. 13 Q. How about General Electric? 14 A. Not to anything I ever heard at that time. They 15 might have been making the asbestos containing compound 16 prior to that time, but not during that time, no. 17 Q. Okay. So the compounds came from Rogers, Reichhold 18 and Plenco, correct? 19 A. To my knowledge. 20 Q. And that testing that was going on alongside of your 21 testing when you were there kicked up a lot of dust, didn't 22 it? 23 A. The testing kicked up some dust. 24 Q. Didn't you say it would kick up a lot of dust? 25 A. If -- depending on whatever they were doing because LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 223 1 if they were grinding a sample it produced more dust then if 2 they broke a sample in half and measured how much strength 3 it took to break the sample. Depended on the tests they 4 were running. 5 Q. Didn't you say that every time a sample was tested, 6 it was broken, abraded, cut to size and kicked up dust? If 7 the material contained asbestos the asbestos was in the 8 atmosphere in that laboratory. Isn't that what you 9 testified to? 10 A. All are all separate steps and, yes, at each step 11 kicked up a quantity of dust. Some small, some larger. 12 Q. Were you also exposed in the testing lab to bars, 13 molded products? 14 A. Several varieties of bar, of molded bars, yes. 15 Q. And have you claimed that those contained asbestos? 16 A. I don't know what they contained at the time. They 17 were testing competitive materials during the period that I 18 was testing wafer board samples and if they happened to have 19 a competitive material in there which might have been once 20 or twice a month, it might have been more than that. If I 21 was testing, if they were testing those products while I was 22 there, then the dust that was kicked up contained asbestos. 23 Q. When you were testing the bars, is it your 24 understanding, is it your claim that you were exposed to 25 asbestos? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 224 1 A. If that coincided with the testing of the competitive 2 raw materials, yes. 3 Q. Sir, were you asked whether or not -- strike that. 4 Were you asked whether in the testing lab how you felt you 5 were exposed to asbestos and you said when they test the 6 bars they would test various molded articles and break them? 7 Do you recall saying that? 8 A. Yes. 9 Q. And when they broke them, there would be a little bit 10 of dust, correct? 11 A. Yes. 12 Q. Every time you broke a bar there would be particles 13 in the air from the testing, correct? 14 A. Yes. 15 Q. And then they'd have to blow off all the equipment 16 and there would be dust on that? 17 A. I don't believe they blew off the equipment in the 18 test lab. 19 Q. Where were the bars tested and broke? 20 A. In the physical test laboratory. 21 Q. Is that different than the press area? 22 A. Oh, yes. 23 Q. And you also had dust in the press area, wouldn't 24 you? 25 A. The press room would have dust that had to be cleaned LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 225 1 up. 2 Q. Sir, it was not just competitors products that 3 contained asbestos, there were Durez projects being tested 4 there that contained asbestos, were there not? 5 A. During what time frame, sir? 6 Q. During the time you were an associate chemist. 7 A. That's not correct. During the time I was associate 8 chemist Durez had ceased using asbestos in their product. 9 Q. These were test lab products, were they not? 10 A. The test lab didn't generate any products of their 11 own. They tested only those products that came from 12 manufacturing via the press room. 13 Q. Well, sir - 14 A. And products that came from the color lab, again, via 15 the press room. 16 Q. So you're saying that in 1979 Durez was doing no 17 testing for products or potential products that contained 18 asbestos? 19 A. None created by them. 20 Q. The other products were being evaluated but they were 21 not competitors products? 22 A. If they were able to obtain a competitive sample they 23 would test it. Sometimes those competitive samples 24 contained asbestos and they were tested. They were molded 25 in the press room and they were tested in the physical test LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 226 1 lab and elsewhere. 2 Q. Okay. But if Durez was not testing potential 3 products of its own with asbestos as of 1979, how is it in 4 1980 your lab was testing for a potential product with 5 asbestos? 6 A. Because we were functioning and proceeding according 7 to the guidelines as dictated by our friction resin 8 customers, particular people like Bendex and Borg-Warner, 9 and Abex. And those people were using asbestos in their 10 operations at their factories and they would want to have 11 information generated on samples that made sense to them. 12 Those samples contained asbestos and that was part of what I 13 already testified to under the friction particle program. 14 It had nothing to do with Durez molding compound. Certainly 15 had nothing to do with Durez Manufacturing. And it was a 16 project that was instituted by the phenolic resins business 17 area as -- so we could supply the friction industry with 18 friction particle. 19 Q. Well, I wanted to move to that friction particle 20 project. 21 MR. CROSBY: Your Honor, we've been going for 22 an hour and fifteen minutes. 23 THE COURT: Let's take a break for fifteen 24 minutes or so. 25 (Whereupon a recess was taken) LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 227 1 (Whereupon the reporter marked the 2 Raw Material Purchase Record as Defendant's 3 Exhibit D for identification.) 4 THE COURT: Bring the jury in. 5 COURT CLERK: All jurors present, all counsel 6 present. 7 THE COURT: Mr. Ginter, would you resume the 8 witness chair, please. 9 (Whereupon the reporter marked the 10 Answers to Interrogatories as Defendant's 11 Exhibit E for identification.) 12 BY MR. CROSBY: 13 Q. Mr. Ginter, let me just back up very quickly. I want 14 to show you what has been marked Defendant's Exhibit E for 15 identification which are the Answers to Interrogatories, 16 questions. 17 THE COURT: What was that exhibit letter? 18 MR. CROSBY: E as in Edward. 19 THE COURT: All right. 20 BY MR. CROSBY: 21 Q. Answers to questions, interrogatories we call them 22 that were given on your behalf in response to questions by 23 Ford. And I want to turn your attention to Page 11. And 24 counsel, if you don't have any objection, I'll work with one 25 that's highlighted to abbreviate it. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 228 1 MR. VONA: That's fine. Go ahead, Brian. 2 THE COURT: Is that marked? 3 MR. CROSBY: It's a copy of this, Your Honor. 4 THE COURT: All right. 5 MR. CROSBY: It's in there. 6 BY MR. CROSBY: 7 Q. In which a statement is given on your behalf, the 8 plaintiff was exposed to asbestos in the following manner, 9 do you see that? 10 A. I see that line, yes. 11 Q. Okay. And it goes through Allied Chemical, it goes 12 through the various entities we've been talking about today? 13 A. Okay. 14 Q. Okay. I'm going to draw your attention down to the 15 third full paragraph, counsel, and ask if you would read 16 that response. 17 A. From 1976 through 1979, plaintiff worked for 18 Occidental Chemical at the Grand Island research facility. 19 During this time plaintiff worked on a large research 20 project for Durez Plastics and required to enter production 21 areas of the Durez Plastics facility on Walck Road where he 22 was exposed to raw asbestos fiber manufactured, sold and 23 distributed by Hedman Mines and Asbestos Corporation 24 Limited. 25 Q. Hedman Mines, correct? LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 229 1 A. That's what it says here. 2 Q. And that's the response that was given on your behalf 3 to Ford's question? 4 A. Somebody made that statement other than myself, but, 5 yes. 6 Q. Okay. Now let me show you what I marked as 7 Defendant's Exhibit D for identification which appears to be 8 a Raw Material Purchase Record for asbestos floats type W6. 9 THE COURT: What's that lettered? 10 MR. CROSBY: D as in David, Your Honor. 11 BY MR. CROSBY: 12 Q. Do you see this headline up there? 13 A. I see that, asbestos floats type W6. 14 Q. Palletized per Durez specs? 15 A. Yes. 16 Q. And at the top we have what number? 17 A. C761. 18 Q. And is that the same number as the asbestos or what 19 you claim was the asbestos material that you were working 20 with in the brake particle project, same number? 21 A. Well, the number is the same. 22 Q. Okay. And sir, I would ask, have you ever seen one 23 of these before? 24 A. No, I don't believe so. 25 Q. I would ask, sir, if you would just tell us the date, LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 230 1 the first date on this record? 2 A. 11-20-70. 3 Q. And it seems to go chronologically, does it not? 4 A. Yes. 5 Q. Okay. If we go to the last page, what's the date of 6 the last entry for asbestos floats type W6 palletized per 7 Durez specs? 8 A. Well, I don't know. This is -- this one says Hedman 9 Mines. It doesn't say W6, does it? 10 Q. Well, if we go back to the first page, sir, does it 11 say vendor Hedman Mines? 12 A. Yes, but here it says Hedman cationic fiber. 13 Q. I appreciate that. 14 A. It doesn't say -- 15 Q. What's the last date? I'll come back to that in a 16 second. 17 A. Well, for this product that was ordered, it's 7-25. 18 I think it's '78. 19 Q. And the initial entry is asbestos floats type W6, 20 correct? 21 A. Ordered in 1970? 22 Q. Right. 23 A. Yes. 24 Q. And then there comes a point in time that it is 25 changed to Hedman cationic fiber, correct? LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 231 1 A. That's what it says on the last sheet. 2 Q. It still bears the number 761, does it not? 3 A. Yes. 4 Q. Again the third page Hedman cationic fiber commencing 5 in 1974? 6 A. On that sheet? 7 Q. Yes. 8 A. I don't know when it commenced. 9 Q. The first date there. 10 A. The first date on that sheet is -- 11 Q. '74. 12 A. Yes, sir. 13 Q. Okay. And again, at the top it says palletized per 14 Durez specs, correct? 15 A. It says at the very top Hedman cationic fiber 16 palletized per Durez specs. 17 Q. And then the last page, sir, the latest also says 18 Hedman cationic fiber, correct? 19 A. Yes, it does. 20 Q. Palletized per Durez specs? 21 A. Yes. 22 Q. Vendor Hedman Mines? 23 A. Yes. 24 Q. Okay. And again it's for Hedman cationic fiber is 25 what it says? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 232 1 A. Yes. 2 Q. Do you know what cationic fiber is? 3 A. No. 4 Q. Do you know whether it contains any asbestos? 5 A. No. 6 Q. Do you know whether when Durez stopped using asbestos 7 in their production they went to a non-asbestos product as a 8 substitute? 9 A. I believe they would have done that, yes. 10 Q. Do you know whether it was cationic fiber? 11 A. No, I don't. 12 Q. Do you know for a fact, sir, if item 761 that you 13 used in your brake project in fact contained asbestos? 14 A. Yes. 15 Q. How do you know that? Did you do any testing? 16 A. That was my understanding of code 761. 17 Q. But if - 18 A. In my code book, code 761 was asbestos. 19 Q. But if in fact the delivery was for something other 20 than asbestos at about the time Durez stopped using 21 asbestos, do you know whether your code book was updated? 22 A. I believe my code book was updated, yes. 23 Q. Well, by the way, this morning when I asked you a 24 series of questions about the various companies against whom 25 you make a claim, you're making claim for mesothelioma being LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 233 1 caused, are you not? Not asbestosis? I think I misspoke. 2 A. That's correct. 3 Q. You understood that, didn't you? 4 A. That was my understanding. I don't think you 5 clarified that, but I took that to mean mesothelioma. 6 Q. Thank you. I did in my mind too. 7 Now, your position changed in 1980, did it not? 8 A. In 1980, I think I might have gotten a promotion to 9 chemist. 10 Q. And at that time as I understand it you spent about 11 fifty percent of your time as a molding compound trainee and 12 about fifty percent of your time on this brake particle 13 project? 14 A. It was about in that time frame. Maybe 1981. I'm 15 not sure of the exact time of the cross training program. 16 Q. Was it when you joined the molding compound group? 17 A. Was what when I joined the molding compound group? 18 Q. That you were assigned to spend fifty percent of your 19 time as a molding - 20 A. Molding compound trainee? 21 Q. Trainee. 22 A. When I -- when they started that program I spent on 23 average fifty percent of my time as a molding compound 24 trainee and also as a -- what I had been doing as an 25 associate chemist in a phenolic resins group. So I LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 234 1 continued that as well as beginning a training program in 2 molding compounds. 3 Q. Okay. And you were in that training program for 4 about a year? 5 A. I think it was designed to run for a year, but it ran 6 for less. 7 Q. Was that because of financial cut backs? 8 A. I'm not sure why. They just stopped the training 9 program. 10 Q. You were never told why? 11 A. No. 12 Q. Now, is it your claim that you were exposed to 13 asbestos through the evaluation of competitive molding 14 compounds that you were involved in? 15 A. Yes. 16 Q. Okay. And it was during that training period, was it 17 not? 18 A. Yes, it was. 19 Q. And you were exposed from a five step process, 20 charging, blending, rolling, grinding and packing? 21 A. No. 22 Q. No? 23 A. No. 24 Q. Maybe I misunderstood, sir, but could we just take a 25 look at your deposition, Page 198 and 199. And we're LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 235 1 referring to this same time period when you were at the 2 molding trainee. 3 A. So I was at Durez? 4 Q. Yes, at Durez, in 1980 or '81, thereabouts. 5 A. Okay. 6 Q. Fair enough? 7 A. Sure. 8 Q. 198 Line 13, do you believe that you were exposed to 9 asbestos during this time frame then both observing the 10 manufacturing of the molding compound as well testing of 11 competitors molding compounds? Well, in particular - 12 there's an objection -- I was exposed to molding compound 13 dust in production certainly. Question, so the material 14 being manufactured by Durez molding compounds. The material 15 being manufactured by Durez, question mark. And your answer 16 was by Durez, Durez molding compounds. Question, and that 17 would be in the fashion that you described previously which 18 was a five step manufacturing process, the charging, 19 blending, dropping onto rolls, grinding and packing out. 20 Answer yes. And the color lab. Mostly the color lab 21 because I would be formulating and when you formulate you 22 can't really afford to run ten thousand pound trials every 23 time you want to. You have an idea so that you do it in the 24 color lab which is a fraction of that? 25 A. Right. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 236 1 Q. Question, would it be the same process. Answer, same 2 process, yes. Question, same steps. Answer, same steps. 3 So during the five step process in the color lab you were 4 exposed in the same fashion to dust as you were -- as you 5 described earlier in the prior position you held? 6 A. No. When I was there as a molding compound or a 7 chemist in any fashion, beginning in 1979 and beyond, there 8 was no use of asbestos by Durez. At no time was asbestos 9 used in manufacturing by Durez after 1970 -- beginning in 10 1979. So I didn't -- no. 11 Q. 1980, however, you claim you were exposed to asbestos 12 in the color lab? 13 A. That's not possible. They didn't make asbestos 14 molding compounds in the color lab or in production at 15 Durez. If that's what's indicated, then that's a 16 misunderstanding of the question somehow. 17 Q. Sir, didn't you just testify or read your testimony 18 in which you indicated that you were exposed to asbestos in 19 the 1980-81 time period in the color lab? 20 A. That's in testing. In testing of products in the 21 process, in a physical test lab I was exposed to asbestos by 22 virtue of the fact that they were testing competitive 23 materials. The competitors had not stopped using asbestos 24 in their products and if we would obtain a sample, we would 25 test it alongside of our samples and by virtue of the LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 237 1 testing and the expulsion of dust from the samples during 2 the testing process, I was likely exposed to asbestos during 3 those periods of time. 4 Q. Let me go back again, sir, ask you, did you not say, 5 do you believe you were exposed to asbestos during this time 6 frame, then by both observing the manufacturer of molding 7 compounds, manufactured as well as the testing of 8 competitors molding compounds. 9 A. I started answering. 10 Q. Your answer - 11 A. I started answering, sir, and I was interrupted by an 12 objection. 13 Q. And then you finished your answer? 14 A. Much -- I am sure a while later. By then we were off 15 onto what I thought was a different topic which was testing 16 of the samples in the physical test lab. So that's a 17 misunderstanding of the question -- 18 Q. Sir - 19 A. -- flow. 20 Q. The question is clear though, is it not, as you sit 21 here today? 22 A. As I sit here today I said the question and the 23 answer followed immediately but as I sat there last year I'm 24 sure it did not. 25 Q. The total objection is three words, is it not, object LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 238 1 to form and then you answered? 2 A. I think they had some discussion of that, sir. 3 Q. Does it indicate - 4 A. Maybe not. 5 Q. -- discussion off the record? 6 A. Not on that. 7 Q. And there was a court reporter there who took 8 everything down, right? 9 A. Yes. 10 Q. So it was -- well, your answer was, well, in 11 particular, and then there was objection to the form. 12 A. Yes. 13 Q. And you continued, I was exposed to molding compound 14 dust in production certainly. Is that your answer? 15 A. I was exposed to molding compound dust in production. 16 Q. And then the next question is, so material being 17 manufactured by Durez question mark. Your answer, by Durez. 18 Durez molding compounds, is that your answer? 19 A. Molding compound dust is fundamental to Durez 20 manufacturer of phenolic molding compounds. Whether or not 21 it contains asbestos is really a separate question, sir. It 22 is a dusty process. If you're making phenolic molding 23 compound it's generating dust. It could be wood flour. It 24 could be fiberglass. It could be any number of fillers. 25 Prior to 1979 in building 88 it was asbestos. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 239 1 Q. Sir, the question was quite clear, was it not? Do 2 you believe you were exposed to asbestos during this time 3 frame. I was exposed to molding compound dust in production 4 certainly. So the material being manufactured by Durez. 5 Answer, by Durez molding compound - 6 MR. VONA: Judge, objection. 7 THE WITNESS: I was exposed to molding 8 compound dust, that's correct. 9 THE COURT: Objection is overruled. The 10 witness has answered the question. 11 BY MR. CROSBY: 12 Q. And the competitors compound that you were testing 13 that had asbestos in them that you were testing were 14 manufactured by whom? 15 A. They were manufactured by the competitor. It could 16 have been Plenco or Rogers. Could have been Reichhold. 17 Q. You recall saying you recall testing Rogers, 18 Reichhold, GE and Plenco? 19 A. I think so. Yes, I did. And occasionally Union 20 Carbide. 21 Q. And you believe that as a result of that testing you 22 were exposed to asbestos? 23 A. Via the testing of certain samples that were received 24 from our competitors. 25 Q. How much of your time was being spent in that LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 240 1 position as opposed to being in the brake particle? 2 A. Well, for that time period, I guess I would spend - 3 the intention was to spend about fifty percent of my time in 4 phenolic resins and about fifty percent of my time in 5 phenolic molding compounds. And that ran for about a - 6 maybe a nine or ten month period and then I went back to 7 full-time in phenolic resins. 8 Q. And the brake particle project was in phenolic 9 resins, right? 10 A. Yes, it was. 11 Q. And was that project already under way when you were 12 transferred into that department? 13 A. Yes. 14 Q. And if I recall your testimony yesterday, there was 15 another gentleman who was handling it who was transferred 16 out and then you took over, is that - 17 A. Not exactly. He retired. 18 Q. He retired and then you took over? 19 A. Yes. 20 Q. And that would have been some time, what month in 21 1980? 22 A. Actually it was in 1979. 23 Q. What month did you take over that project? 24 A. It was late in the year. Maybe October. September, 25 October time frame perhaps. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 241 1 Q. Didn't you tell us yesterday it was 1980? 2 A. It was about 1980. It was late in the year of 1979. 3 Q. Now, tell me when you got involved in the brake 4 particle project, was there a protocol that was written up? 5 A. For what part of it, sir? 6 Q. For the project. 7 A. Well, we had an overall project directive. 8 Q. And what -9 A. Nothing written in terms of a plan you mean? 10 Q. Um-hum. 11 A. I generated my own milestones with the aid of my 12 supervisor. 13 Q. What were your milestones? 14 A. I really don't recall them in detail right now. I 15 know one had to do with matching a frictional characteristic 16 of the current product being used by the customers, Bendex 17 and Borg-Warner were using a product made from cashew oil. 18 And we were to match the performance characteristic of that 19 while maintaining a low cost profile. So that was part of 20 it. 21 Q. Okay. And the reason -- what was the basic reason 22 for this project? 23 A. The current product, cashew oil particle that was 24 being used in the industry at the time was coming in short 25 supply and the price was going up. So Durez management LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 242 1 thought to fund a project that could compete in that market. 2 Q. And when was that funding put in place? 3 A. I don't know. 4 Q. When you moved in to take over that project, what 5 information were you given? 6 A. I was given some information about how to prepare a 7 friction particle and some background on the current 8 physical properties of the current product, particle size 9 and such. 10 Q. Was Durez manufacturing friction products at that 11 time? 12 A. They were manufacturing resins that were sold to the 13 friction customers such as Bondex or Borg-Warner and they 14 would take our resin and mix it with a host of ingredients, 15 asbestos among them certainly and they would make brake 16 linings and clutch facings from those mixtures. 17 Q. So that at that point in time Durez was not in the 18 business of manufacturing their own friction products? 19 A. Well, that's correct. Durez had no time manufactured 20 a finished friction compound. 21 Q. By friction compound we're talking about essentially 22 a brake shoe for example? 23 A. A brake shoe or the component mixture that would 24 become a brake shoe. 25 Q. So your -- Durez participation in that industry was LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 243 1 as a supplier or a potential supplier of resins? 2 A. Initially. And we had been a long time supplier to 3 that industry. We wanted to expand our contribution by now 4 supplying that market with a friction particle that would 5 supplant or augment their current supply which was based on 6 cashew oil. 7 Q. So was it your goal to ultimately get into the -- an 8 expanded role in the market? 9 A. Expanded role as a supplier to their product mix, 10 yes. 11 Q. And what you intended to do was not only supply the 12 bonding material or the glue but to add an ingredient? 13 A. Yes. 14 Q. And that would go to the friction manufacturer or 15 common terms the brake manufacturer? 16 A. Correct. 17 Q. They would then add other compounds to it and 18 formulate the brake pad or brake shoe? 19 A. That's right. 20 Q. Just so we're clear, it was not your intention nor 21 was it the business of Durez at that point in time to supply 22 completed compounds that included the remaining friction 23 materials? 24 A. That's my understanding. 25 Q. Okay. And that was your understanding of your LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 244 1 project, correct? 2 A. My project was to formulate and prepare a friction 3 particle as a component for our customers to use as a 4 component to their friction compound, yes. 5 Q. What you wanted to do is see if you could come up 6 with something to replace cashew oil? 7 A. Yes. 8 Q. Now, before you started mixing compounds, did you 9 take some time to develop potential mixes that could be 10 tested? 11 A. No. 12 Q. So you immediately started testing? 13 A. Well, we received recipes from our customers, so they 14 guided us. They were encouraging us because they were in a 15 spot. They had to pay a lot of money for their cashew oil 16 particle. Supply was becoming tight and they welcomed the 17 opportunity to test a product that would perform just as 18 well and cost less. So they had provided recipes to us. 19 Q. You said they provided recipes. Recipes for the 20 compound that they used to manufacture brakes? 21 A. I doubt if any of them were the actual production 22 compounds. They have a whole host of items that go into a 23 brake lining pad, most of which they undoubtedly keep 24 secret. And there was no need to have every bit of minutia. 25 What they gave us was a test relation that we should use and LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 245 1 screen our friction particle in that test compound and then 2 test many and see which ones performed best by virtue of its 3 and among other things FAST machine results. 4 Q. So before you started testing anything, you knew you 5 wanted to replace cashew oil, correct? 6 A. Yes. 7 Q. What were the various substitutes that you considered 8 utilizing? 9 A. Well, much of that work was done by my predecessor, 10 so we did not -- I did not have a broad range of powerful 11 materials. They were phenolics certainly, but I didn't go 12 outside the realm of phenolics. So I didn't look at acrylic 13 and I didn't look at polyacrylates or anything like that. 14 I simply looked at phenolics. 15 Q. Now, you said you got recipes from customers? 16 A. Yes. 17 Q. Who were your customers? 18 A. At the time they were Borg-Warner and Bendex and 19 Abex. All brake lining manufacturers. 20 Q. You didn't get a recipe from Ford, did you? 21 A. No. 22 Q. Ford wasn't a customer? 23 A. No. Not to my knowledge. 24 Q. So did you get the recipes? Did you meet with people 25 from Bendex and Borg-Warner and Abex? LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 246 1 A. Usually it was someone else. It could have been a 2 salesman that had a meeting. 3 Q. You don't know who it was? 4 A. I don't know who it was. 5 Q. So the answer is - 6 A. At one -- at one meeting I was present at and we 7 talked about it. We panted some ideas back and forth. But 8 the actual formulas came to me through other means other 9 than direct contact. 10 Q. Who was it at that meeting? 11 A. I forget the particulars of that. It was early on in 12 my participation. 13 Q. So -- who was outside of Durez at that meeting? What 14 company was represented, do you remember? 15 A. No, I don't. 16 Q. Do you know if it was any of the outside companies? 17 A. Oh, it was likely one of the customers that I 18 mentioned, yes. 19 Q. You say likely. Do you know? 20 A. I don't know which one, but it would wouldn't have 21 been somebody that didn't have an interest in friction 22 particle. 23 Q. So you get the recipes and how were they presented to 24 you? 25 A. On paper. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 247 1 Q. A sheet of paper, more than one sheet of paper? 2 A. Usually one sheet of paper. 3 Q. Were the recipes all the same? 4 A. No. They varied. 5 Q. How many recipes did you have? 6 A. I had three recipes. 7 Q. From whom? 8 A. Well, they would have been from Abex and Borg-Warner 9 and Bendex. 10 Q. Were they marked, Bendex Borg-Warner, Abex? 11 A. I believe they were. 12 Q. And tell me now once you had the recipes, what did 13 you do in order to go on with your project? How did you 14 evaluate those recipes and come up with a test sample? 15 A. Well, I would follow the recipe instructions. If it 16 required a -- typically an assemblage of the raw materials 17 and a process to blend them, mix them intimately, then they 18 would need to be molded, a sample removed appropriately 19 sized for testing and then tested. 20 Q. Those were the steps that you would follow? 21 A. Those are the overall steps. 22 Q. But the recipes didn't contain those steps, did they? 23 A. Sure they did. 24 Q. Let's start with the raw materials. Tell me about 25 the raw materials that you utilized to formulate these test LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 248 1 samples. 2 A. Well, it varied. Some -- all of them had asbestos 3 and of course they had resin and of course they had a 4 friction particle candidate. 5 Q. What do you mean by a friction particle candidate? 6 A. Well, I would make a friction particle according to a 7 plan of mine to check the validity of its performance. In 8 other words I would change some factor in making the 9 friction particle. It could be a component of making the 10 product, curing the product or the particle size of the 11 product. Many variables go into an experiment and I would 12 out of that would become a friction particle. Not all the 13 friction particles were alike. 14 Q. Friction particle is the end sample, is it not? Is 15 that - 16 A. It's the end sample that we call friction particle. 17 But it's a small component of the overall mixture. 18 Q. And just so the jury understands what we're talking 19 about, what do you mean by a friction product? 20 A. Friction product is a -- in my case, it was a molded 21 article made from a composition, a mixture of ingredients 22 that customers, our customers deemed suitable for use as a 23 friction composition, a friction article, friction brake 24 pad. 25 Q. Let me see if I can simplify it. By a friction LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 249 1 product you mean something that applies friction against 2 another surface in order to cause that other surface to 3 decelerate or slow down? 4 A. Sure. That's the intent of a friction article. 5 Thank you for that. 6 Q. So we're talking a brake pad or brake shoe roughly? 7 A. Yes. 8 Q. In the final - 9 A. In the final object that I was intending to test, 10 yes. It's a brake pad. 11 Q. And the brake pad works in what fashion? 12 A. By applying a force to a rotating wheel in your car 13 on the wheel. 14 Q. And it has to have certain properties, does it not? 15 A. Yes, it does. 16 Q. It has to have a certain longevity? 17 A. Yes, I would expect that that's longer is better. 18 Q. It has to have a certain wear rate so you don't wear 19 the brake out the first time? 20 A. That's the objective of the composition. 21 Q. It has to have a certain hardness to it? 22 A. I expect so. That was not one of the things that I 23 took interest in. 24 Q. Does it have to be able to withstand heat? 25 A. Yes. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 250 1 Q. And why is that? 2 A. Because there's a good deal of heat generated during 3 the course of frictional force that's applied to the 4 rotating wheel, the disc in your brake system. 5 Q. And the heat is generated by the contact between the 6 brake and the friction surface, the wheel? 7 A. The rotating disk, yes, or a brake drum if it's a 8 drum. 9 Q. And that friction brake shoe has to be able to absorb 10 and withstand that heat, correct? 11 A. I imagine in the end analysis it does, yes. 12 Q. Well, you're testing -- ultimately tested to certain 13 heat levels, didn't it, measured certain heat levels? 14 A. We measured it. We didn't control for it. 15 Q. Give the jury an example of the heat levels that you 16 were testing that your testing disclosed your materials of 17 being subjected to. 18 A. Going to several hundred degrees centigrade. 19 Q. Would that go up to 6 or 7 hundred degrees 20 centigrade? 21 A. It would go to the five to six hundred range at 22 times. 23 Q. So now you have your recipe. And you intended to 24 make samples, correct? 25 A. Yes. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 251 1 Q. And after you made the samples, completed the 2 samples, you then intended to test them, is that correct? 3 A. Yes. 4 Q. Okay. And we've heard the term FAST machine. The 5 FAST machine was a device that you choose to use to test? 6 A. Among other things, yes. 7 Q. Now, let's go to the beginning of the process. You 8 have the recipe but you ultimately want to end up with a 9 sample that you can test. What's the first thing you do? 10 A. Well, obviously round up the materials and weigh them 11 out accurately into a container. The container I chose was 12 a gallon paint can. 13 Q. So you took the materials which included asbestos? 14 A. Asbestos. 15 Q. And what else? 16 A. Resin. 17 Q. Okay. 18 A. Friction particle. 19 Q. Okay. 20 A. And it would vary. I don't recall all the 21 ingredients. I think some formulations had a little 22 graphite in it and some might have a little barium in it. 23 Q. Now when you went to obtain the asbestos, where did 24 you go? 25 A. I went to our laboratory stores. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 252 1 Q. Were they still stocking asbestos even though you 2 weren't using it in production? 3 A. They did in my laboratory, yes. 4 Q. When you went to your laboratory stores, what did the 5 container that contained asbestos look like? 6 A. There was a fiber drum. 7 Q. What did it say on it? 8 A. C-761. 9 Q. Say anything else? 10 A. Not that I can recall. 11 Q. And how would you get that asbestos into your paint 12 can? 13 A. Well, I'd scoop it out. Take the cover off, it was 14 cardboard fiber cover and remove that and -- by means of a 15 scoop. I would take some out, put it into an appropriate 16 container and weigh it to the required amount. 17 Q. So you scooped raw asbestos up out of the can? 18 A. Out of the drum. 19 Q. And put it into a can? 20 A. Put it into a can, correct. 21 Q. Did that generate dust? 22 A. Yes . 23 Q. And you weren't wearing any protective gear at that 24 point? 25 A. No. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 253 1 Q. And then you took that raw asbestos and you mixed it 2 with other or put other ingredients into the can, right? 3 A. Yes. 4 Q. And then you weighed the whole thing? 5 A. No. I weighed them as I went along. 6 Q. How would you weigh the asbestos? Put it in another 7 container or leave it in the scooper? 8 A. Oftentimes I put the can on the scale, tear the scale 9 to zero. That's the process where you eliminate the weight 10 of the container and the scale reads zero. So if you need 11 one hundred grams of something, you'd weighed it. You add 12 material till one hundred grams was achieved and you're done 13 with that. 14 Q. Then you add another material? 15 A. Add another material. 16 Q. What happens if you put a little bit too much of the 17 other material in, do you have to go back and odd more 18 asbestos? 19 A. I wouldn't do that. I would be careful and add the 20 correct amount. 21 Q. So you've got all these raw materials that you've 22 scooped out of different materials I take it? 23 A. Different containers, sure. 24 Q. You put them in a paint can. What did you do with 25 the paint can? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 254 1 A. Well, I additionally added some mixers in the form of 2 ceramic balls and I put few of these, five or six at most 3 into the can. I'd put the cover on the can and then take it 4 over to a roller mill which was simply a set of rollers that 5 would turn slowly and the balls inside would cascade as the 6 can turned and it would intimately mix the ingredients. 7 Q. And as you poured the materials from the paint can 8 into the mixture, was it dusty? 9 A. No, I didn't pour the material from the paint can 10 into the mixer. The paint can was the mixer. 11 Q. And you put the ceramic balls inside the paint can? 12 A. Sure. 13 Q. Was that part of a mixing machine? 14 A. It was a roller mill. It was a set ofrolls that 15 turned that turned the can slowly. One roller would turn 16 and the can would rotate and as the can rotated, the balls 17 inside would roll around and intimately dry the dry 18 ingredients together. 19 Q. And they're still in raw form, arethey not? 20 A. Yes, they're all dry and raw form. 21 Q. And you would then open the can up and take the 22 ceramic balls out, correct? 23 A. Yes. 24 Q. And scoop out the friction composition? 25 A. Yes. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 255 1 Q. And that created dust, didn't it? 2 A. Some dust, yes. 3 Q. Now, the rolling machine that you used for mixing 4 this asbestos material, who made that? 5 A. I don't know. 6 Q. Did that have any warnings on it not to use with 7 asbestos? 8 A. I don't know. 9 Q. And then after you scooped out the materials, you 10 loaded the friction composition into a mold, right? 11 A. Yes. 12 Q. And that created dust? 13 A. It did. 14 Q. Okay. And tell me about the mold, how did you decide 15 on the size mold you wanted to make? 16 A. The mold was predetermined. It was there in place 17 before I started. 18 Q. What do you mean it was predetermined? Did you have 19 various molds you were going to use? 20 A. No. Not a wide range. This was the mold that we 21 used to make the brake lining. 22 Q. I thought you didn't make brake linings. 23 A. In the laboratories we did. We used a compression 24 mold to make a -- what essentially is a brake line. This is 25 not a production item. It's a laboratory sample. So we had LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 256 1 a mold that was shaped in the shape of a brake lining. 2 Q. I guess I misunderstood. I thought you told us 3 earlier that Durez didn't make brake linings, that you had 4 to go get a recipe from three different companies in order 5 to learn how to make the brake lining? 6 A. We got the recipe from brake lining customers. They 7 told us how to make a friction composition. Took that 8 composition, put that together like a recipe and we baked 9 it. We baked it in a mold, in a hot mold with a press. 10 Q. My question is: Who chose that mold? 11 A. I don't know. It was chosen before I started on the 12 project. 13 Q. Did you have other molds available to you in your 14 laboratory? 15 A. No. 16 Q. Any other testing that you were doing? 17 A. That was the only item that I ever molded. 18 Q. Okay. So after you loaded the friction composition 19 into the mold and dust came off of it, again, you were still 20 not wearing any mask of any kind, correct? 21 A. Right. 22 Q. You would then clean the area, would you not? 23 A. Yes. 24 Q. How would you do that? 25 A. Well, by brushing it down and blowing out the mold LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 257 1 area with an air hose. 2 Q. Was that a commercial air hose. 3 A. I don't know what you mean by that. 4 Q. Was it made by somebody other than Durez? 5 A. Durez didn't make our hoses. 6 Q. So did the air hose have on it any warnings not to 7 blow dust that was latent with asbestos? 8 A. Air hoses are intended to blow things around. 9 Q. So there was no warning about asbestos with the air 10 hose? 11 A. None that I saw. 12 Q. And then what did you do with the mold after it was 13 mixed and filled? 14 A. I closed the press. 15 Q. And what happened then? 16 A. The materials started to bake and get hot. The resin 17 melts. It flows over the other ingredients and it thermally 18 cures. It sets to a hard plastic state. 19 Q. Okay. 20 A. And after a quantity of time, the mold is opened, the 21 part is retrieved and as I said the mold and molding area is 22 cleaned. 23 Q. Now, is that the final stage before you went out to 24 test it? 25 A. We let the part cool, yes. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 258 1 Q. Now, do you believe that you were caused to be 2 exposed to asbestos at each stage of this operation? 3 A. Yes. 4 Q. Okay. You agree it was a dusty process from the 5 loading of the ingredients into the mill till the final 6 removal? 7 A. Yes, it was a dusty process. 8 Q. After opening the mill, you had even more dust than 9 you started out with, correct, at the end of the first 10 mixing cycle? 11 A. What stage? 12 Q. Let's go back. From the loading of the ingredients 13 into the mill, that generated a fair - 14 A. Into the can? 15 Q. Into the can. 16 A. Okay. 17 MR. VONA: Judge, just note my objection to 18 the repetitiveness. 19 THE COURT: I think this is the last time 20 counsel will go through the process because I'm going 21 to ask him to go onto something else. 22 BY MR. CROSBY: 23 Q. So you load the ingredients into the mill which 24 generates a fair amount of dust? 25 A. Yes. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 259 1 Q. And you were in close proximity to that? 2 A. Yes. 3 Q. And after opening the mill or the mix, right? 4 A. The can, yes. 5 Q. The can, that generated even more dust? 6 A. Yes. 7 Q. And that dust was finer than before? 8 A. It seemed to be. 9 Q. And then you removed the balls and cleaned them with 10 an air hose and that blew dust in the air? 11 A. Yes. 12 Q. And then you removed the sample from the mill and put 13 it in another container and cleaned out the mill? 14 A. Yes, the can. 15 Q. Again using an air hose? 16 A. Well, yes. 17 Q. And that generated a great deal of dust, isn't that 18 what you told us? 19 A. It generated a great deal of dust, yes. 20 Q. And then you baked it? 21 A. Baked it in a mold. 22 Q. And after you molded it, you had a finished compound? 23 A. Yes. 24 Q. But before you went onto test it, you had to clean 25 the area, right? LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 260 1 A. Yes. 2 Q. And you blew all the items down, all the apparatus 3 down, right? 4 A. Brushed it down and blew out what I couldn't brush. 5 Q. And that created more dust in the air? 6 A. Similar, yes. 7 Q. Now you've got a finished piece. By the way, Ford 8 had no input into that process, did they? 9 MR. VONA: Object to form. 10 THE COURT: Overruled. 11 THE WITNESS: I don't know what input they 12 had into that process. 13 BY MR. CROSBY: 14 Q. Do you know of any input that Ford had into that 15 process that you just went through? 16 A. I received the process from our customers. Ford may 17 well have had a good deal of influence at our customers 18 concerning the process. So I don't know what influence Ford 19 had. 20 Q. Do you know of any input that Ford had into that 21 process? Do you know of any? 22 A. No. 23 Q. All you know is that process was generated by three 24 customers and Durez? 25 A. It was generated by our customers and carried out by LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 261 1 Durez. 2 Q. And that process carried out by Durez was similar to 3 the process you followed in other formulations, wasn't it? 4 A. What other formula? 5 Q. The five step process. 6 A. No. What five -- the five step process or four step 7 process that you seem to be referring to is a production 8 process, right, where materials are charged in building 88? 9 Is that what you're referring to? 10 Q. Uh-huh. 11 A. No, those two processes don't have anything in 12 common. 13 Q. Okay. After - 14 A. Other than the mixing of the ingredients. I mean 15 there's no hot, heated rollers as there is in production. 16 There's no pack out station. There's no, you know, none of 17 that. 18 Q. After you finished with the actual molding of the 19 product, what was the next thing you did? 20 A. Well, we cooled the item and then I cut a piece out 21 of it that would fit into a sample cell on the FAST machine. 22 Q. Okay. Let's go back -- how big a piece did you have 23 when you completed your molding process? How big was the 24 total sample? 25 A. I don't know that I actually measured it. It was LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 262 1 probably four to six inches across. Maybe four, five inches 2 across. And maybe two or three inches high. I don't know. 3 It was a pretty big piece compared to what I needed to test. 4 Q. And then you were going to perform a test as to 5 whether or not that material had appropriate friction 6 characteristic, right? 7 A. Yes. 8 Q. And what did you perform that test on? 9 A. You mean the machine? I used a FAST machine. 10 Q. What does FAST stand for, do you know? 11 A. Fast stands for Friction Assessment Screening Test. 12 Q. And that's a test protocol, is it not? 13 A. Well, it's -- it's a procedure by which materials are 14 tested for their frictional characteristics. 15 Q. By the way, did any of your suppliers that you were 16 making these compounds for or hoping to sell to, did they 17 dictate that you use the FAST machine? 18 A. I think in discussions -- I don't know how it was set 19 up but again it was before my time. But I think they were 20 willing to accept information from our FAST machine because 21 I was told they had FAST machines as well as many other 22 machines that went way beyond the FAST machine. 23 Q. My question is: Do you personally know whether any 24 of Abex, Bendex or Borg-Warner said we want you to test this 25 product on the FAST machine before you come back to us? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 263 1 A. I had no direct knowledge of that. 2 Q. Okay. So you don't know? 3 A. Project was orchestrated before my contribution 4 started. 5 Q. Okay. Now, you were going to test a sample, right? 6 A. Yes. 7 Q. Correct? And you were going to test it on the FAST 8 machine? 9 A. Yes. 10 Q. Who told you to use the FAST machine? 11 A. It would have been part of my discussions with my 12 supervisor and a prior investigator on the project. 13 Q. What did your supervisor say? 14 A. He agreed that we should continue testing the FAST 15 machine. 16 Q. Had you ever used the FAST machine at any time before 17 you went on that project? 18 A. No. 19 Q. Do you know where the FAST machine came from, where 20 Durez got it, do you know? 21 A. I don't know exactly where they got it from. 22 Q. Do you know when they got it? 23 A. Nope. 24 Q. Did anyone instruct you, any individual instruct you 25 on how to use the machine? LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 264 1 A. I think I had a run through with that machine early 2 on when I assumed the program from the original 3 investigator. 4 Q. By the way, how many FAST machines did Durez have? 5 A. I knew of just one. 6 Q. And one was in that laboratory? 7 A. It was in an area called the analytical laboratory. 8 It was separate from the physical test laboratory and 9 separate my laboratory. 10 Q. And the analytical laboratory, do you know how long 11 it had been there. 12 A. No, I don't know. 13 Q. What's meant by analytical laboratory? 14 A. Well, it can mean a lot of things. In our case it 15 was designation for an area that held instrumentation. 16 Complex electronics, liquid chromatograph, gas 17 chromatograph. It wasn't a wet chemistry laboratory. It 18 was an analysis laboratory that used interim instruments to 19 measure purities and so forth. 20 Q. And would that laboratory been utilized to 21 investigate or analyze other friction materials over the 22 years? 23 A. Not to my knowledge. 24 Q. So before 1979? 25 A. Excuse me. Other than phenolic resin which may well LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 265 1 have been sold to the friction compounders. 2 Q. So phenolic resin, I think you told us from 1977 to 3 1979 you were aware of phenolic resins being manufactured in 4 production with asbestos? 5 A. Phenolic resin never contained asbestos whether in 6 production or in the laboratory. 7 Q. Were they mixed with asbestos? 8 A. Not at Durez, other than my project. 9 Q. On any of the instruments in that laboratory, did you 10 see any warnings with regard to asbestos? 11 A. No. 12 Q. In that laboratory, did you see any warnings posted 13 by Durez with regard to testing asbestos products or other 14 products that may or may not be harmful to an individual? 15 A. No. 16 Q. In that laboratory, did you have access to a mask? 17 A. No. 18 Q. In 1980? 19 A. I have no recollection of that. 20 Q. In 1980, did you have access to a mask if you chose 21 to have one prior to performing any task on the premises? 22 A. I don't recall seeing any masks around, no. 23 Q. Now, you indicated that this machine, you don't know 24 when this machine was acquired? 25 A. No. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 266 1 Q. Do you know if it had been there for a number of 2 years? 3 A. I don't know. 4 Q. Have you ever seen any documentation as to when Durez 5 acquired the machine? 6 A. I don't know. I don't have any recollection of when 7 we would have received the machine. 8 Q. Do you agree with me, sir, that prior to 1979, Durez 9 management was aware of asbestos health issues at their 10 facility? 11 MR. VONA: Object. Your Honor, may we 12 approach? 13 THE COURT: Step up. 14 (Whereupon a bench conference was held). 15 THE COURT: The objection is overruled. Read 16 the question back, please. 17 (Whereupon the reporter read back the 18 requested question) 19 THE WITNESS: I wasn't an employee of Durez 20 prior to 1979, and therefore I have no knowledge of 21 when they acquired knowledge of asbestos health 22 hazards. 23 BY MR. CROSBY: 24 Q. Well, at any time did you learn that they stopped 25 utilizing asbestos in production because they were aware of LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 267 1 potential health hazards? 2 A. I know they stopped using asbestos -- I learned they 3 stopped using asbestos in 1979 during the health monitoring 4 program that was announced in the mid '80s, mid to late 5 '80s. That's when I learned that they had -- I'm trying to 6 think back. I guess I didn't know the specificity of the 7 date of when they stopped using asbestos. I learned in the 8 mid '80s that they stopped using it in 1980 -- before 1979 9 or by 1979. I knew they weren't using asbestos in 10 production but I didn't know when they stopped until the mid 11 '80s. 12 Q. And when you learned when they stopped, did you also 13 learn that the reason they stopped was because of potential 14 health issues with regard to asbestos ingestion by 15 employees? 16 A. Again, that would have been the mid to late '80s. 17 Q. You learned that? 18 A. I learned that in our health monitoring program 19 meetings. 20 Q. As the reason why back in the '70s they stopped using 21 it? 22 A. Yes. 23 Q. Okay. So before you used this machine, you would 24 agree with me that if the machines were to be utilized with 25 asbestos products that Durez was aware of potential health LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 268 1 hazards associated with it? 2 A. I have no knowledge of that. I just explained, I 3 wasn't aware of -- I don't know when they became aware of 4 it. I wasn't aware of it until the mid to late '80s. 5 Q. I appreciate you didn't learn about it till the '80s. 6 A. Right. 7 Q. When you did learn about it, you learned that they 8 had stopped using it because of potential health problems? 9 A. I don't know why they stopped. Before 19 -- mid 80 I 10 had no reason -- I had no knowledge why they stopped. They 11 may well have known. I don't know that for sure. I wasn't 12 even an employee then. 13 Q. When you went into the health monitoring program, did 14 you learn that you were in the health monitoring program 15 because Durez was concerned that you had been exposed to 16 asbestos? 17 A. Yes. 18 Q. And that Durez was aware that asbestos in one form or 19 another could potentially cause mesothelioma? 20 A. I don't know what their awareness level was, sir. 21 Q. What were you told? 22 A. We were told that there was some potential health 23 hazards if you were exposed to asbestos. I don't know if 24 they got specific as to diseases or not. I can't recall the 25 specifics of that. I knew that they started a health LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 269 1 monitoring program. They spoke of many issues concerning 2 lung ailments. I don't know if mesothelioma was among them. 3 It may have been. 4 Q. But it had to do with exposure to asbestos? 5 A. It did. 6 Q. Now, tell me what you did in order to obtain a sample 7 to use on the FAST machine. 8 A. I -- the friction pad, brake pad into a vice and I 9 cut a sample from it using a hacksaw approximately a half 10 inch by half inch, actually a little bit larger. And after 11 retrieving that small sample, I would take it over to 12 another device. If I cut it a little bit too big, I would 13 have to grind it. Sometimes I'd use a grinder to do that. 14 But once I got it to a certain size, I put it into a jig 15 that was made especially to shape a sample to a specific 16 size. 17 Q. Let me stop you at that point. The sample that 18 you're cutting is from a bonded finished material, right? 19 A. Yes. 20 Q. We no longer have raw asbestos, we have asbestos that 21 has been mixed with resins and other materials and baked? 22 A. Well, it's still raw asbestos in my opinion. It's 23 not been changed chemically in any way. It's been mixed 24 with a resin and other fillers and it's been baked into a 25 shape so that the resin can harden. Now the resin has LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 270 1 undergone significant changes because it has to harden 2 substantively to bond all the ingredients. 3 Q. Well, you're a chemist, sir. Did you ever test any 4 of the asbestos fibers after they had been bonded and baked 5 to see whether there was any chemical composition change to 6 them? 7 A. No. 8 Q. Would it surprise you if there was? 9 A. I would think I would be a bit surprised if there was 10 a substantial change. 11 Q. But you don't know one way or another? 12 A. You asked me if I would be surprised and I told you 13 yes. 14 Q. You said you would be surprised but you have no 15 knowledge one way or another whether there was? 16 A. No, because I didn't test it. 17 MR. VONA: That's not asbestos, is it? 18 MR. CROSBY: Would you mark that, please. 19 (Whereupon the reporter marked the 20 Brake Shoe as Defendant's 21 Exhibit F for identification.) 22 BY MR. CROSBY: 23 Q. Let me show you, sir, what's been marked as 24 Defendant's Exhibit F. Do you recognize generally what that 25 is on top? LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 271 1 A. Yes. It's a friction lining. 2 Q. And I represent to you that it is not the same 3 composition as the one you were making. But is that 4 generally the type of surface that you would have been 5 working with after you had completed the molding process? 6 A. Generally, yes. 7 Q. So it's a hardened surface, right? 8 A. Yes. 9 Q. It's -- there is no floating asbestos in the air, 10 correct? 11 MR. VONA: Objection, Your Honor. 12 THE WITNESS: I don't know -- 13 THE COURT: Wait a minute. Wait a minute. 14 What's your objection? 15 MR. VONA: Objection to form and foundation. 16 THE COURT: Sustained. Rephrase that 17 question. 18 BY MR. CROSBY: 19 Q. The sample that you took out, was it generally in 20 that size and shape? 21 A. I think it was not as long and it was wider. 22 Q. Okay. And after you got your sample out of the mold 23 and you cut it with a hacksaw, how large a sample were you 24 cutting? 25 A. I would target a half by half -- one half inch by one LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 272 1 half inch or slightly a bit larger. 2 Q. Actually half inch by half inch by 8th of an inch? 3 A. Approximately an inch 8th of an inch, yes. 4 MR. CROSBY: Would you mark this, please. 5 (Whereupon the reporter marked the 6 Piece of Paper as Defendant's Exhibit G 7 for identification.) 8 BY MR. CROSBY: 9 Q. Let me show if you, sir, understanding that this is 10 not the same material but just for dimensional purposes, 11 would you agree that is approximately the size of the sample 12 that you cut? 13 A. No. The size that I cut was again half inch by half 14 inch or little larger. And it was thicker than that. 15 Q. Okay. How much thicker? I would represent to you 16 that that's an 8th of an inch. 17 A. The mold, the mold that I used produced a sample that 18 was thicker than that, so I would have to remove that 19 material before testing it. But that's the size of the 20 sample that I eventually tested. 21 Q. Okay. So this is the size of the sample piece that 22 you were going to test, correct? 23 A. After grinding and filing and shaping, yes. 24 MR. CROSBY: I move this into evidence. 25 MR. VONA: Okay. No objection. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 273 1 MR. CROSBY: May we show that to the jury? 2 He has no objection. 3 THE COURT: The officer will take care of 4 that. 5 (Whereupon Defendant's Exhibit G was entered 6 into evidence) 7 THE COURT: Officer, I would like to see it. 8 BY MR. CROSBY: 9 Q. Now, in order to get that, you indicated you had to 10 cut from the larger sheet a piece that was half inch by half 11 inch, right? 12 A. Approximately. 13 Q. Did you do that on the corner I assume? 14 A. I did a little on the side. 15 Q. So you would have to make two cuts? 16 A. Yes. 17 Q. And those were -- what kind of blade was on that 18 hacksaw? 19 A. I don't recall. Typical hacksaw blade I guess. 20 Q. And it would go through that material? 21 A. Quite easily. 22 Q. So easily going through that material, that material 23 remain bonded, did it not? 24 A. Not the part that I cut, no. 25 Q. The part that you cut ended up as a solid piece, LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 274 1 didn't it? 2 A. That's the part I cut out. But the cut line did not 3 remain bonded, no. 4 Q. I guess I don't understand what you're saying. The 5 remainder of the piece remained bonded, didn't it? 6 A. Oh, the remainder of the brake shoe? 7 Q. Yeah. 8 A. The brake lining. Yeah, that remained bonded, yeah. 9 Q. And the small piece you were going to use remained 10 bonded? 11 A. Right, and the cut line between the two was not 12 bonded. It was dusty. It was cuttings. It was a cutting 13 from the material. 14 Q. So you're saying - 15 A. Just like you saw a piece of wood you will see 16 sawdust. 17 Q. So you would get little bit of material from each of 18 those cuts? 19 A. Sure. 20 Q. But that material was not or again it was still 21 bonded material that had been cut? 22 A. It was cut from the larger sample, yes. I don't know 23 what it was on microscopic sense, but it had particles. 24 Some were lighter than others. Some fell down. Some kicked 25 up. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 275 1 Q. And the materials -- by the way, did that saw have a 2 warning on it, don't cut into a material that has asbestos? 3 A. No. 4 Q. Now, when you took that small piece, you indicated 5 you might have to fashion it down a little bit to fit into 6 the mold, correct? 7 A. Yes. 8 Q. After you put it into the mold? 9 A. Well, not the mold. The sample cell. But it's a 10 sample holder. 11 Q. Sample holder. You put it into the sample holder and 12 what did you do with it? 13 A. After I put it in the sample holder? 14 Q. Yeah. 15 A. I moved -- well, it's on the arm. The sample holder 16 is on the arm and the arm moves against an abrasive wheel on 17 the FAST machine. 18 Q. Okay. And where are you standing when you do that? 19 A. I'm standing in immediate proximity to the machine. 20 Q. Behind it? 21 A. In front of it working. 22 Q. Like you said, front from back. Is the piece coming 23 towards you or going away from you as you move it from its 24 off position to its engaged position? 25 A. Piece is coming away from me. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 276 1 Q. So then would you agree with me you're standing 2 behind the sample piece that you're testing? 3 A. Oh, I see what you're saying. I was standing in 4 front of the machine but behind the sample if you will. 5 Q. By the way, where that machine was located in that 6 analytical laboratory, was that essentially a clean room? 7 A. No. 8 Q. Was there an exhaust duct for the machinery that was 9 in there, test machinery? Was there an exhaust duct for the 10 FAST machine? 11 A. There was a -- what we call an elephant trunk. An 12 elephant trunk came down, it was maybe about four inches in 13 diameter. It came down from an overhead duct that had a 14 vacuum system incorporated, a rather weak one. Elephant 15 trunk came down and ended at a fabricated piece of aluminum 16 that sat behind the machine, right behind the machine and 17 the intention was to draw air towards that fabrication. 18 Q. In other words - 19 A. But it didn't work very well. 20 Q. There was a device in that laboratory that would suck 21 air or dust coming off of the machine by design? 22 A. By design. Not by fact, in my opinion. 23 Q. Did you ever make a complaint to anybody at Durez 24 that it wasn't working right or wasn't adequate? 25 A. I think I mentioned it to the person that was in the LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 277 1 analytical lab at the time. That was his area principally. 2 He ran the machines. He ran the instruments. He had 3 general authority over the area and I mentioned it to him 4 but I got no response that changed anything. 5 Q. But in any event was that particular air handling 6 device, that vacuum system on when you were using the FAST 7 machine? 8 A. My understanding is it was on twenty-four hours a 9 day. 10 Q. So when you turned the FAST machine on, what's the 11 next thing you did in order to test the sample? 12 A. Well, I would let -- I would turn the machine on 13 first. There were pressures I think that had to be 14 normalized and stabilized, settings that the machine were 15 set at or preset at I should say and then I put the sample 16 in place and let that run. And it would run for a period of 17 time. Typically ninety minutes. And during the course of 18 that running, the results would be displayed on a chart. 19 Q. So what you've done is -- let's back up. When you 20 turned it onto run, was there an arm that went forward? 21 A. The arm was in place with the sample. 22 Q. And how would it come in contact with whatever it was 23 to come in contact with? 24 A. There's an arm that pushed up against it with a 25 certain force I believe. It was part of the mechanical LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 278 1 design of the instrument. And I'm not terribly sure the 2 exact mechanics of it, but there was an arm that pushed up 3 against the sample and I think it kept a certain force on 4 the sample against the wheel. 5 Q. And the sample was being pushed against a rotating 6 wheel, wasn't it? 7 A. Yeah. It was a being abraded by the wheel, yes. 8 Q. That's to simulate a brake being in contact with a 9 wheel on a car or a truck? 10 A. Yes. 11 Q. And then to measure how it is reacting to that? 12 A. Yes. 13 Q. And when it was in place against that wheel and the 14 wheel was turning, were there any shields or sides to the 15 machine? 16 A. Shields or sides? 17 Q. Alongside of where the test piece was and the wheel. 18 A. None that I recall. 19 Q. Do you know whether there ever had those? 20 A. No, I don't know. 21 Q. You don't know? 22 A. I don't know. 23 Q. And as this wheel is turning and the brake is in 24 contact with it - 25 A. There's a shield around the wheel. But if you're LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 279 1 talking about -- you said the samples and such, along the 2 sides of the machine, no. 3 Q. There were shields around the wheel? 4 A. There was a shield around the wheel. 5 Q. How close was that shield to where the sample came in 6 contact with the wheel? 7 A. I don't know. Probably within six inches. 8 Q. And as the wheel was turning and the sample is in 9 contact and you're taking measurements, are you not? 10 A. No, I'm not. The recorder is. 11 Q. The recorder is part of the machine? 12 A. Well, it's an appendage to the machine. It takes the 13 signals that the machine is generating and it turns them 14 into a line on a chart. So then you can have a recording of 15 what took place over a period of time. 16 Q. All right. And this test would go on for about 17 ninety minutes? 18 A. That's right. 19 Q. And during that ninety minutes, this air vacuum 20 system is engaged? 21 A. Such as it was. 22 Q. And over that ninety minutes, was there any reason 23 for you to stop the machine for any reason? 24 A. Well, if the sample wore out prematurely it would 25 risk running the arm into the wheel. The fear was it failed LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 280 1 from an excessively high wear rate, so we didn't want that 2 to happen. 3 Q. My question is - 4 A. Oh, I would stop it early, of course. 5 Q. How many times did you stop it early? 6 A. Oh, I don't recall. It was once or twice early on in 7 the program. That's why I stayed with the machine rather 8 than walk away from it. 9 Q. And once the test was started, was there a timer that 10 it went for ninety minutes? 11 A. I would stop it at the end of the 90 minute period. 12 I would stop it myself. 13 Q. So you would start it and you would stop it? 14 A. Yes. 15 Q. And if the piece didn't wear out in between, you had 16 no other duties while the test was going on? 17 A. I might have been doing some notebook work or sitting 18 in the chair writing up formulations or something. I would 19 do something important hopefully. 20 Q. You say - 21 A. At that time while watching the machine. 22 Q. I'm sorry. When you said you were -- you do notebook 23 work or write up formulations. Where would you do that? 24 A. That would be in the immediate proximity of the 25 machine in front of the machine. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 281 1 Q. Was it at a desk? 2 A. No. It would be on a stool. I would be sitting on a 3 bench and the machine was on that bench and I would be 4 sitting typically on a stool in front of it. 5 Q. In front of the machine? 6 A. Yes. 7 Q. And the machine would do the test and then you'd shut 8 it off and take readings and observations? 9 A. The readings were already recorded on the chart. I 10 would read the results certainly and start to clean up the 11 air. The wheel was hot, so I didn't go near that. I let it 12 cool down. 13 Q. Would you remove the piece? 14 A. Eventually. 15 Q. Would you save the piece? 16 A. No. 17 Q. You just discard it? 18 A. I would discard that piece. Whatever was left of it. 19 Q. I'm sorry? 20 A. Whatever was left of it. 21 Q. Now, in the course of a test - 22 A. Let correct that. 23 Q. I'm sorry. 24 A. Early on I would tape the piece or take the piece and 25 tape it to the chart with a piece of tape, but I stop doing LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 282 1 that after a short fashion. 2 Q. Similar to what I've done? 3 A. Not too different from that. I'd tape it up into the 4 corner. But I stopped doing that after awhile. It didn't 5 seem to serve any useful for my purposes. 6 Q. So then your contact with the sample or whatever was 7 generated by the sample took place after the machine cooled 8 down? 9 A. Well, whatever was being abraded was in the 10 atmosphere or of the room and the proximity to that machine. 11 Q. When you say whatever was being abraded, in the 12 course of this test, was certain materials in the various 13 mixtures that you made worn out or abraded? 14 A. Were they worn out or abraded? Yes. That's the 15 intention of that test. 16 Q. That was the intention? 17 A. Yes. Yes. 18 Q. And when material with the resin you were using and 19 what you say was asbestos in that half inch by half inch 20 piece wore out, do you know whether it wore out as a result 21 of a shearing force? 22 A. I don't know exactly if there was. I'm sure it was a 23 shearing force of some degree. It was certainly a friction 24 force that was overcome as the wheel turned against the 25 sample. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 283 1 Q. And to the extent that it was as a result of a 2 shearing force, do you know whether that shearing force 3 altered the composition of the asbestos fibers that were in 4 the product? 5 A. I don't know that. 6 Q. And as to the material that was left, you agree with 7 me it appeared as though it was burned off? 8 MR. VONA: Object to form. 9 BY MR. CROSBY: 10 Q. How would you characterize it? 11 A. It was dusty. 12 Q. Okay. And are you aware of whether that dust was 13 created as a result of the heat and the friction? 14 A. I know it was created as a result of the friction. 15 Q. And the friction occurred as a result of the pressure 16 under heat? 17 A. The friction occurred as a result of an arm pushing 18 against the sample with a certain hydraulic force. They had 19 an oil pump and that would pump to a certain pressure that I 20 forgot which pushes against that arm which pushes against a 21 sample against the wheel. So that frictional force is what 22 caused the dust in my opinion. 23 Q. And that frictional force generated a substantial 24 amount of heat in the sample? 25 A. Yes, it did. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 284 1 MR. VONA: Judge, I hate to interrupt Mr. 2 Crosby. May we approach just briefly? 3 THE COURT: Yes. 4 (Whereupon a bench conference was held). 5 THE COURT: We'll be about ten minutes and 6 then we're going to break for lunch. 7 MR. CROSBY: Can I have the last question and 8 answer read. 9 (Whereupon the reporter read back the 10 requested testimony) 11 BY MR. CROSBY: 12 Q. Do you know whether that heat changed the composition 13 of whatever material was being generated off of the sample? 14 A. I know it changed the composition of the resin. 15 Q. And changing the composition of the resin, as a 16 chemist do you also know it changed the composition of the 17 asbestos? 18 A. I don't know if it changes the composition of the 19 asbestos. 20 Q. Do you agree -- are you familiar with the term 21 forsterite? 22 MR. VONA: Judge, again, this was asked on 23 Friday. Asked and answered. 24 THE COURT: Let him answer the question. 25 THE WITNESS: No. As a chemist I didn't. I LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 285 1 didn't learn about minerals. They're not very 2 interesting to a chemist, truth be told. So I don't 3 know that the heat changed the asbestos. 4 BY MR. CROSBY: 5 Q. You're not aware the heat changing the asbestos into 6 it forsterite? 7 A. No. 8 Q. And you indicated that it did change the composition 9 of the resin. That's something you are familiar with? 10 A. I have some familiarity with that. 11 Q. And the asbestos would still be embedded or attached 12 to or mixed in with the resin, was it not? 13 A. It was bonded by the resin. 14 Q. Bonded? 15 A. Bonded. It was bonded by the resin. 16 Q. So the residue was not free floating asbestos, it was 17 bonded material that had been abraded? 18 MR. VONA: Object to form. 19 THE WITNESS: I don't know if it was free 20 floating. It was all around the area, so it must have 21 flowed somehow. 22 BY MR. CROSBY: 23 Q. Tell me how much did that half inch by half inch 24 weigh? 25 A. I don't recall the weight. It was light. LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 286 1 Q. Did you ever measure how much dust came off that? 2 A. It varied. Some went down all the way to the sample 3 holder and some didn't. 4 Q. Can you give me a quantification how much dust or 5 residue came off of that sample? 6 A. I have not quantified it. It varied. It varied 7 sometimes from sample to sample. 8 Q. What would be the lowest to highest if you can tell? 9 A. Zero to one hundred percent. 10 Q. A hundred percent of what? 11 A. One hundred percent of what the sample weighed. If 12 the sample weighed two grams, then it could be approaching 13 that. 14 Q. What did the samples weigh? 15 A. I don't know. I can't remember. 16 Q. So you can't give us any estimate as to how much 17 residue? 18 THE COURT: That's what he said. 19 THE WITNESS: I just -- 20 THE COURT: He answered your question. Go on 21 with your next question. 22 THE WITNESS: I'm sorry. 23 BY MR. CROSBY: 24 Q. Just one or two other quick things. Do you recall 25 yesterday we talked about your performance evaluation for LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 287 1 the year 1981? 2 A. Yes. 3 Q. And -4 MR. CROSBY: We will move that into evidence. 5 MR. VONA: That's fine. No objection, Your 6 Honor. 7 THE COURT: Is it marked? 8 MR. CROSBY: It is marked as Exhibit A, Your 9 Honor. 10 THE COURT: Exhibit A is received. 11 (The document referred to as 12 Defendant's Exhibit A 13 was received in evidence.) 14 (Whereupon the reporter marked the 15 Performance Evaluation as Defendant's 16 Exhibit H for identification.) 17 (Whereupon the reporter marked the 18 Performance Evaluation as Defendant's 19 Exhibit I for identification.) 20 BY MR. CROSBY: 21 Q. Let me show you, Mr. Ginter, two additional 22 performance reports. The first covering the period January 23 '82 to January '83. 24 THE COURT: January when? 25 MR. CROSBY: '82 to January '83. And, Your LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 1 Honor, that is Defendant's H as in Henry for 2 identification. 3 BY MR. CROSBY: 4 Q. You see that, sir? 5 A. I see the dates, yes. 6 Q. Previously when we looked at January '81 to January 7 '82 it indicated that your project friction particle project 8 ended as of October, '81. You recall that? 9 A. Yes. 10 Q. Okay. Consistent with that there is no mention on 11 your performance evaluation for 1982 of the friction 12 particle project, is there? 13 A. That was changed from -- I think what you're 14 referring to there is we what he called friction particle 15 and oil project, is it not? 16 Q. No. It says friction particle project, sir. 17 MR. VONA: Would you show the witness the 18 exhibit. 19 MR. CROSBY: Sure. Defendant's Exhibit A, 20 the highlighted - 21 THE WITNESS: What is the last line? 22 Additionally a patent was obtained on the oil process. 23 BY MR. CROSBY: 24 Q. Is that the -- not the cashew oil issue? 25 A. No. No, that's a medium that we used in one of LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 289 1 the -- one portion of the program to actually make the 2 friction particle. It was made in a lubricating oil as the 3 medium. And that was one portion of the friction particle 4 program. 5 Q. Let me just ask you, sir, didn't you tell us fifty 6 percent of your job in 1981 was this friction particle 7 program? 8 A. Approximately, yes. 9 Q. Okay. Would you expect that the friction particle 10 project would be a substantial portion of your annual 11 evaluation? Comprise of fifty percent of your job? 12 A. It was one of the major programs for me. 13 Q. And the first entry on Exhibit A says friction 14 particle project colon, correct? 15 A. Yes. 16 Q. Jim completed the milestones on this project up to 17 its termination as of October, '81? 18 A. That was -19 Q. Correct? 20 A. That was a particle and oil project, sir. 21 Q. Doesn't say particle and oil, does it? 22 A. That's what it was. 23 Q. It says additionally a patent was obtained on an oil 24 process? 25 A. That's the process we worked on in that time frame. LYNN M. RICKETTS Supreme Court Reporter GINTER - CROSS - CROSBY 290 1 Q. There's no other mention anywhere in this evaluation 2 of that project, is there? 3 A. There wouldn't be any need to. The rest of the 4 evaluation concerns other duties and responsibilities. 5 Q. Okay. If the project was not terminated in October 6 of 1981, as this document would appear to indicate, can you 7 show me any mention of it in your 1982 or 1983 annual 8 reviews that are marked as Defendant's H and Defendant's I? 9 A. Let me look. It would have been in item three here 10 on this document performance period 1-82 to 1-83. And it 11 would have been in the third item where it says, resolved 12 five projects or seventy-five percent of those assigned by 13 technical manager. So it was likely right in there as one 14 of my objectives for 1982. 15 Q. Does the word friction particle project appear in any 16 evaluation in 1982 or '83? 17 A. No. 18 Q. Okay. By the way, you signed these, did you not? 19 A. I believe so, after they were discussed. There may 20 have been changes to them after I had discussions with my 21 supervisor and then I would have signed the final copy. 22 Q. Well, let's look at Defendant's Exhibit I. Is that 23 your signature? 24 A. Yes, it is. 25 Q. Defendant's Exhibit A -- or Defendant's Exhibit H, is LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 291 1 that your signature? 2 A. Yes. 3 Q. So those would be the final documents, would they 4 not? 5 A. Yes. 6 MR. CROSBY: We will move into evidence 7 Defendant's Exhibit H and I. 8 MR. VONA: No objection. 9 THE COURT: Received. 10 (Whereupon Defendant's Exhibit H and I were 11 entered into evidence) 12 MR. CROSBY: I believe, Your Honor, those are 13 all the questions I have of this witness. 14 THE COURT: All right. A sigh of relief. 15 We'll adjourn for an hour. Let's say 1:50. 16 17 (Whereupon a luncheon recess was taken). 18 19 THE COURT: Bring the jury in. 20 COURT CLERK: All jurors present, all counsel 21 present. 22 THE COURT: All right. Members of the jury, 23 I understand that you had a couple of questions about 24 scheduling and I've spoken with the attorneys. Friday 25 will be what we call a down day. It's a day when LYNN M. RICKETTS Supreme Court Reporter GINTER CROSS CROSBY 292 1 there's no witnesses available. So you won't come in 2 at all on Friday. Monday is a national holiday, so you 3 won't come in on Monday. So when you leave Thursday, 4 you will come back Tuesday. Now, tomorrow 1:30. We 5 don't have any evidence to present in the morning, so 6 if you report here at 1:30 in the afternoon. We'll 7 have one witness tomorrow, what do you think? 8 MR. VONA: It's going to depend on -- we 9 can't judge based on cross-examine, judge, but we 10 intend to present Dr. Utell tomorrow afternoon. 11 THE COURT: At least a doctor will be 12 testifying. 13 MR. VONA: Provided Dr. Abraham finishes this 14 afternoon. 15 THE COURT: Well, that will happen, would be 16 it? 17 MR. VONA: I certainly hope so. 18 THE COURT: You will move along 19 expeditiously. 20 MR. VONA: Do my best. 21 THE COURT: Did that answer your questions? 22 Now in terms of anybody who needs to use the rest room 23 facilities, all you have to do is put up your hand 24 where if there's anything else that you're having a 25 problem about, put up your hand and we'll take care of LYNN M. RICKETTS Supreme Court Reporter GINTER REDIRECT VONA 293 1 whatever you need immediately. Okay? Thank you. 2 MR. VONA: Thank you, judge. 3 COURT CLERK: Mr. Ginter, you're reminded you 4 remain under oath. 5 THE WITNESS: Thank you. 6 MR. VONA: May I judge? 7 THE COURT: Yes. 8 MR. VONA: Thank you. 9 REDIRECT EXAMINATION 10 BY MR. VONA: 11 Q. Mr. Ginter, I want to thank you for your patience. I 12 know it's been a long day. I'm going to be very brief. 13 You've told this jury on Friday and also again today that 14 you worked at Allied Chemical between September 1968 and 15 December of 1968, correct? 16 A. That's correct. 17 Q. And also that you worked at Spaulding Fibre from I 18 believe it was June of '69 till September of '69, correct? 19 A. That's right. 20 Q. Pretty good with dates, aren't you? 21 A. I'm pretty good with them, yes. 22 Q. Sir, to the best of your recollection, when did you 23 work on the friction particle project at Durez? 24 A. I worked on it from late in 1979 into 1982, through 25 1982 . LYNN M. RICKETTS Supreme Court Reporter GINTER REDIRECT VONA 294 1 Q. About how long was that roughly? 2 A. It was approximately a three year program to my 3 recollection. 4 Q. Okay. I'm going to show you briefly Defendant's 5 Exhibit G in evidence. Do you remember getting questioned 6 about this, sir? 7 A. Yes. 8 Q. This is pretty much representative of the sample that 9 you used on the Ford FAST machine? 10 A. Size wise, yes. 11 Q. And true this would contain forty to sixty percent 12 asbestos? 13 A. Yes. 14 Q. Based on the formulations? 15 A. Based on the formulations. 16 Q. Do you have any idea how many millions or trillions 17 of asbestos fibers would be in here? 18 A. No. 19 Q. Now, you were asked a little bit about some of your 20 insulation exposure at Allied Chemical. I just want to 21 shift gears briefly. I'm going to show you Plaintiff's 22 Exhibit 3 in evidence, the Ford FAST instruction manual. 23 May I approach? 24 25 BY MR. VONA: THE COURT: Go right ahead. LYNN M. RICKETTS Supreme Court Reporter GINTER REDIRECT VONA 295 1 Q. If you can briefly go to the back of the instruction 2 manual for figure four. Got it, Jim? 3 A. Yes. 4 Q. What is that essentially, sir? What's depicted 5 there? 6 A. Well, it's a horizontal cross section of the machine. 7 Q. Of the FAST machine? 8 A. Of the FAST, yes. 9 Q. Say anything about insulation in there? 10 A. Well, it says something about an insulation washer. 11 Q. Right here, sir. 12 A. Here it says, on this side it says asbestos 13 insulation. 14 Q. It says -- it actually says asbestos insulation? 15 A. Yes, it does. 16 Q. Okay. And sir, how close -- by looking at that 17 diagram how close is that asbestos insulation to the 18 friction disc? 19 A. It looks to be within a fraction of an inch. 20 Q. Sir, turn to Page 25 of the manual, please, under 21 maintenance of the machine. 22 A. Yes. 23 Q. Okay. And if you could under number two, could you 24 read the first sentence there, sir? 25 A. After exceptionally long use, the asbestos insulating LYNN M. RICKETTS Supreme Court Reporter GINTER REDIRECT VONA 296 1 layer around the periphery of the friction disc tends to 2 darken and indicates flaking off at the front edge. 3 Q. Flaking off. Friable, correct? 4 A. Yes . 5 Q. Jim, do you believe that you may have been exposed to 6 asbestos from that insulation from working on the FAST 7 machine while you were at Durez? 8 MR. CROSBY: Objection. Beyond the scope of 9 direct. 10 THE COURT: Pardon? 11 MR. CROSBY: Beyond the copy of direct. 12 THE COURT: Sustained. 13 MR. VONA: I'll move on. 14 BY MR. VONA: 15 Q. During your cross-examination, sir, you talked about 16 a jig. Do you recall that? 17 A. Yes . 18 Q. I could direct your attention to -- so I can speed 19 this along, try to any way. Figure ten in the Ford 20 instruction manual. Do you see that? 21 A. Yes. 22 Q. What's that picture of? 23 A. That's a picture of a what I call a jig. It's a 24 device used to precisely shape the sample so that it fits 25 properly into the sample holder of the FAST machine. LYNN M. RICKETTS Supreme Court Reporter GINTER REDIRECT VONA 297 1 Q. Okay. And I don't mean to belabor it, but how do you 2 shape that? 3 A. I shaped it with a file. 4 Q. And what's depicted in Exhibit No -- or, I'm sorry, 5 figure number ten of Plaintiff's Exhibit No. 3, is that 6 substantially similar to the jig you used at your time at 7 Durez? 8 A. Yes, it is. 9 Q. You can put that down, sir. Also you were asked a 10 series of questions about warnings on air hoses and other 11 equipment that was at the Durez facility. You recall that? 12 A. Yes. 13 Q. Were any of those pieces of equipment that you were 14 asked warnings about, were any of them used to specifically 15 use to abrade friction material? 16 A. No. 17 Q. More specifically, were any of them used to abrade 18 asbestos containing friction material? 19 A. No. 20 Q. Lastly, you were asked some questions on Friday about 21 smoking and warnings, you recall that? 22 A. Yes. 23 Q. Okay. Sir, would it be a fair statement that during 24 the time you smoked you were addicted to nicotine? 25 A. I would say I was addicted to nicotine. LYNN M. RICKETTS Supreme Court Reporter GINTER REDIRECT VONA 298 1 Q. Jim, to your knowledge have you ever been addicted to 2 asbestos fibers? 3 A. No. 4 MR. VONA: I don't have anything else, judge. 5 THE COURT: Recross? 6 MR. CROSBY: Nothing. Thank you, judge. 7 THE COURT: During the course of these 8 trials, this is the first time this has come up. I'm 9 going to allow jurors to suggest questions that the 10 jurors think they might want to know the answers to. 11 The way we do that is if you've got some question you 12 want put to a witness before the witness is allowed to 13 leave the witness stand, you write it out on a sheet of 14 paper, I look it over, I review it with the attorneys 15 and we determine whether or not it's a question that 16 can be properly asked. If it's going to be asked I ask 17 the question and then we get the answer. Sometimes 18 that prompts follow-up questions, question, but usually 19 not. If there's any member of the jury who would like 20 to think he or she would like to hear an answer to a 21 question from this witness, please write it out at this 22 time. Is there anybody that has a question in their 23 mind? If so, put up your hand. Nobody. 24 Sir, you may step down. 25 MR. PONTERIO: At this time plaintiff would LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 299 1 like to call Dr. Jerrold Abraham to the stand. 2 COURT OFFICER: Place your left hand on the 3 Bible, raise your right hand. 4 JERROLD ABRAHAM, after having been first duly sworn, was 5 examined and testified as follows: 6 COURT CLERK: Please state your name spell 7 your last name for the record. 8 THE WITNESS: Jerrold Abraham, A-b-r-a-h-a-m. 9 THE COURT: City, town or village in which 10 you live? 11 THE WITNESS: Fayetteville, New York. 12 COURT CLERK: Thank you. You may be seated. 13 THE WITNESS: Thank you. 14 DIRECT EXAMINATION 15 BY MR. PONTERIO: 16 Q. Good afternoon, Dr. Abraham. 17 A. Good afternoon. 18 Q. Could you please tell the jury what your profession 19 is? 20 A. Yes. I'm a medical doctor specializing in pathology. 21 Q. And what is pathology? 22 A. Pathology is a science studying disease. So in 23 medicine, pathologists are doctors who are trained to 24 understand about the way diseases affect the person and 25 especially day-to-day pathologists are the ones involved in LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 300 1 making the diagnosis when someone has anything removed from 2 their body whether it's blood sample or a biopsy or a 3 scraping like a Pap smear or an autopsy in some cases. 4 Q. Dr. Abraham, are you licensed to practice medicine in 5 New York? 6 A. Yes, I am. 7 Q. And can you tell the jury how long have you been 8 licensed to practice medicine in the state of New York? 9 A. Yes. Since 1983. 10 Q. And where are you presently employed? 11 A. I'm employed at the State University of New York at 12 Upstate Medical University in Syracuse. 13 Q. And how long have you been employed there? 14 A. Since 1983. 15 Q. And what is your present position at the Health 16 Science Center in Syracuse? 17 A. Well, in my department I'm professor of pathology in 18 the pathology department and within that there's a small 19 division that I run, it's called environmental and 20 occupational pathology. 21 Q. And doctor, can you tell the jury what is 22 environmental and occupational pathology? 23 A. Yes. It just refers to the area of interest of me in 24 that case since I've been interested in diseases related to 25 exposures people have through their occupation or somewhere LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 301 1 in the environment. So environmental and occupational just 2 refers to my main area of interest over the last 30 3 something years. Diseases that are caused by people's 4 exposures. 5 Q. And very briefly, what do your duties as director of 6 environmental and occupational pathology at the Health 7 Science Center involve? 8 A. Well, basically it means any cases from people where 9 there's a question of or a known exposure to one or more 10 different materials that might be related to their medical 11 problem will come to my tension usually for review and 12 sometimes further analysis. 13 Q. Doctor, do pathologists treat patients? 14 A. Only indirectly. Pathologists are more consultants 15 to the practicing surgeon or internist. 16 MR. PONTERIO: I would like to have this 17 marked for identification, please. 18 (Whereupon the reporter marked the 19 CV as Plaintiff's Exhibit #4 for identification.) 20 BY MR. PONTERIO: 21 Q. I'm going to show you, doctor, what's been marked 22 Plaintiff's Exhibit 4 and could you identify for us what 23 this document is? 24 A. Yes. This is a copy of my curriculum vitae or 25 resume. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 302 1 Q. And doctor, can you very briefly highlight for us 2 your educational background. By that I mean the colleges 3 and universities you attended and the degrees you obtained. 4 A. Sure. I went to college at MIT or Massachusetts 5 Institute of Technology and received my degree in biology 6 life sciences. That was in 1966. Following that I went to 7 medical school at University of California San Francisco and 8 received my MD degree in 1970. 9 Q. And after completing your medical degree, did you 10 perform an internship and residency? 11 A. Yes. So then I moved back to Boston. I did my 12 internship starting my training in pathology at Children's 13 Hospital in Boston and then my residency as Beth Israel 14 Hospital in Boston. 15 Q. And doctor, in the field of medicine, what is meant 16 by board certification? 17 A. Well, it's a kind of quality control approval 18 mechanism in which different specialties -- there's a 19 general one in medicine in general but most specialties have 20 their own boards that are set up by the people experienced 21 in that field. For example, in pathology there's a number, 22 I don't know if it's fifteen or twenty pathologists that 23 constitute the board and they set up criteria for training 24 programs, the residency programs in pathology so they have 25 to provide people who want to become pathologists with a LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 303 1 certain amount of experience and guidance from expert 2 pathologists. And the boards also then constructs exams to 3 test a person before they can become board certified. So to 4 become certified you have to take training in an approved 5 residency training program and in that specialty in 6 pathology. And then you have to pass the board exam in that 7 specialty. And if you do both those things, then you can be 8 board certified. 9 Q. Are you board certified in any particular field of 10 pathology? 11 A. Yes. I'm board certified in what's called anatomic 12 pathology which is the half of pathology that deals with 13 diagnosis of cells and tissues. The other half is called 14 clinical pathology which deals more with examining blood 15 samples or hematology kind of testing for diseases of the 16 blood or chemical analysis or for drugs and abnormal 17 chemicals in your body, fluids and also for micro biology 18 for studying infections in your body. 19 Q. Doctor, have you published articles in the medical 20 literature? 21 A. Yes, I have. 22 Q. Approximately how many? 23 A. It's close to 150 now. 24 Q. Have any of your publications touched upon the 25 subject of asbestos related disease? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 304 1 A. Yes. A number of them have. Since I became 2 interested in occupational health, that was in 1972, 3 actually when I started working in that area, and asbestos 4 is one of the well-recognized occupational and environmental 5 hazards resulting in disease. So that's been a main area of 6 interest of mine. But it hasn't been the only area of my 7 publications. Probably 10 or 15 deal substantially with 8 asbestos and the others include some which deal with that 9 partially. 10 Q. Doctor, during the course of your profession as a 11 pathologist, have you been called upon to diagnose people 12 with mesothelioma? 13 A. Yes, very often. 14 Q. And have you ever been called upon during the course 15 of your profession to test materials for asbestos content in 16 those products? 17 A. Yes, I have. 18 Q. Can you tell the jury just a little bit about that 19 experience? 20 A. Well, I have to back up slightly because -21 Q. Sure. 22 A. -- the training I had beginning in 1972 was with 23 NIOSH, the National Institute of Occupational Safety and 24 Health and at that lab which was in West Virginia there were 25 a number of specialized electron microscopes available that LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 305 1 I had the chance to learn how to use and they were useful to 2 analyze small dusting particles that can get into people's 3 lung and one of those is asbestos. So over time I learned 4 how to analyze asbestos and other materials in people's 5 tissues. And also sometimes when we get reference materials 6 of a person may have been exposed to, we try to see what 7 matches up with what's in their lung. So looking things for 8 asbestos included my own experience looking at play sand 9 that my son didn't get exposed to but potentially could have 10 been exposed to when he was three. We found some play sand 11 that accidentally was put on the market even though it had 12 some contamination with asbestos. We were able to analyze 13 that and had to work out a method actually to find out how 14 much asbestos was in it the number of asbestos fibers for 15 example, in a certain amount of a gram or pound of the 16 material. And I've also from time to time looked at other 17 samples such as insulation materials to see if they in fact 18 contained asbestos and what kind of asbestos. 19 Q. Doctor, just give the jury an idea how many 20 individual asbestos fibers are there in one gram of 21 asbestos? 22 A. Well, a gram is about a cubic centimeter, a volume of 23 water, it would be about a gram. And in that amount of pure 24 asbestos there would be on the order of ten trillion, that's 25 one with 12 or 13 zeros after it fibers of asbestos. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 306 1 Q. Dr. Abraham, have you been -- previously have you 2 presented testimony to juries such as these seated here 3 before Judge Lane on the subject of asbestos and 4 mesothelioma? 5 A. I think so. 6 Q. Doctor, I would like to discuss with you if I may the 7 lungs. 8 MR. PONTERIO: And if you can please mark 9 this for identification. 10 (Whereupon the reporter marked the 11 Lung Model as Plaintiff's 12 Exhibit #5 for identification.) 13 BY MR. PONTERIO: 14 Q. Doctor Abraham, I'm going to show you what's been 15 marked Plaintiff's Exhibit 5. Can you tell the jury what 16 this is a model of? 17 A. Yeah. This is a model of the lungs in the chest and 18 the heart and the voice box larynx and wind pipe or trachea 19 and this sort of coral thing is the thyroid glands which 20 sits on top of the trachea. 21 Q. With the Court's permission, Dr. Abraham, could you 22 step down and I'm going to ask you some questions in front 23 of the jury so everyone can see where you're pointing to. 24 Dr. Abraham, can you tell the jury first off what type of 25 tissue is the lung made up of? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 307 1 A. Well, it's made up of -- the lung is made up of two 2 main components; one is the airways that start with the 3 trachea through the bronchi area to the ways. And then the 4 functioning part of the lung that has air sacs is called 5 alveoli. So this opens. With that removed I can show you 6 basically the white branches are the airways or bronchi that 7 carry the air into the lungs and then this cut across area, 8 that coral colored represents the area where there's lots of 9 air sacs. The actual air sacs are about a quarter of a 10 millimeter. They're really too little to see without a 11 magnifying glass. And in the lung there's approximately one 12 hundred million or so of these little air sacs and you can 13 think of a how bubble works if you have one big bubble 14 there's not as much surface area, but if you divide it into 15 thousands of them, you increase the area. That's how the 16 lung increases the area that allows the air to get in 17 contact with more blood 'cause in the walls of each of those 18 little air sacs, they're little blood capillaries which 19 carry red cells. So the oxygen comes into the air into the 20 red cell and the carbon dioxide that you breathe out comes 21 from getting out of your blood back into the air spaces, 22 then it works its way back up these tubes to exhale it. 23 Q. Doctor, is the lung elastin? 24 A. This one isn't, but yours is. It let's you breathe 25 so when you take a deep breath your lung gets in air and LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 308 1 expands. It has to be elastic to allow it to get bigger and 2 smaller when you breathe. 3 Q. Can you give a description of what a healthy lung 4 would feel like? 5 A. Well, it would feel like a very light sponge. Very 6 easy to distort and it would be thin. If you cut across it 7 the individual tissues are very thin like Cellophane. 8 Q. Now, thank you. Mr. Ginter has pleura mesothelioma. 9 Can you show the jury where the pleura is located? 10 A. Yeah. It's actually -- this model shows the lung but 11 it doesn't show the chest wall. Outside the lung is your 12 chest wall, ribs, muscles and the lining. So the pleura is 13 the surface lining of the chest wall. One surface is not 14 shown here. If you figure the chest wall is around here. 15 One lining is called parietal outside the lung pleura and 16 the other is visceral. There's a lining of plural on the 17 lung itself. There's also an area around the heart called 18 the pericardium around the heart. So the pleura is the two 19 surfaces on the chest wall and the lung and normally they're 20 very smooth and that allows your lung to move when it 21 expands when you breathe. 22 Q. How thick is the pleura? 23 A. Normally it's as thick as a few cells. Maybe ten 24 microns or maybe one hundred microns at most which is about 25 a tenth of a millimeter. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 309 1 Q. What is the function of the pleura in our body? What 2 purpose does it serve? 3 A. Well, normally it provides a surface to allow the - 4 as I said the lung to move. It has little bit of lubricant 5 chemical that's produced by the cells that line it and it 6 allows it to slide freely when you breathe. 7 Q. What could you compare the pleura to for the jury? 8 A. Well, the normal pleura is tapped to the chest wall 9 and tapped to the lung. So you don't see it separate but if 10 you peel it off again, it would be a very thin membrane. 11 Q. Thank you, doctor. If you could -- doctor, would you 12 please tell us what asbestos is? 13 A. Asbestos is a name for a small group, actually a 14 small group of mineral fibers that form naturally, 15 geologically in the earth and it's characterized by minerals 16 that grow as elongated fibers meaning they're longer than 17 they are wide. And they grow often in bundles. So the 18 fibers can then be laid part. They can be chopped and the 19 name asbestos itself means that it doesn't burn. So that 20 was discovered a couple thousand years ago at least that 21 there were certain kind of mineral fibers that people could 22 find in the ground in some places or in mines that could be 23 used to weave fabrics even and those could be put into fire 24 and they would lead to a whole industry over centuries of 25 using it for asbestos, insulation material, to reduce fire LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 310 1 and also like straw was used in bricks, it was used to 2 reinforce many things especially things that had to tolerate 3 heat since it didn't burn. 4 Q. As a fiber, does asbestos have any airborne 5 qualities? 6 A. Well, when it -- naturally in the ground it stays 7 there, but if it's disturbed by mining or distance for any 8 reason or if it's a product and gets abraded, or handled in 9 some way it can release these fibers and as I mentioned 10 before there's like trillions of fibers in a gram of the 11 material so that tell us each one is very small. It's too 12 small to see without a good microscope. When such things 13 that are that small get into the air, they can stay there. 14 They don't settle out right away. So one of the properties 15 of asbestos fibers that gets into the air is it can remain 16 there for hours or days, sometimes without settling out like 17 some sand from the beach, it would settle out right away. 18 Q. Doctor, as part of your training and teaching in 19 occupational and environmental medicine, did you come to 20 learn how asbestos was utilized in various products? 21 A. Yes. I've read a fair amount about the history of 22 that over the centuries, not me but the history over the 23 centuries. And as I mentioned it's been used as an 24 insulating fireproofing material. Reinforcing material. 25 It's been used in thousands of different products around the LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 311 1 world over the last one hundred or more years. 2 Q. As part of the your profession in occupational and 3 environmental medicine, can you tell us what was asbestos in 4 friction material such as brake linings used for? 5 A. Well, it was used to provide friction. The rough 6 surface of the brick rubbing over the brake drum helped cars 7 or vehicles slow down or any other moving thing was subject 8 to that friction of one thing moving over another and it was 9 used for that because it was resistant to heat and 'cause it 10 reinforced often it wasn't used just by itself but it was 11 used in other materials as a mixture to help it be more 12 strong and also to be fire resistant. 13 Q. Dr. Abraham, I would like you to assume that 14 Mr. Ginter has testified that the brake lining friction 15 material that he tested on the FAST machine was about one 16 half inch by one half inch and contained a percentage of 17 asbestos in the range of forty to sixty percent asbestos. 18 My question to you is, as a pathologist in occupational and 19 environmental medicine, are exposures to products containing 20 a percentage of asbestos sufficient to cause mesothelioma? 21 A. Well, yes. I mean a product that has forty percent 22 or even one percent or less asbestos can still have millions 23 or trillions of fibers of forty or fifty percent in every 24 piece of material of that size you describe. They don't all 25 get released at once, but when they're abraded, some LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 312 1 fraction of them will get released and there's the potential 2 for any asbestos exposure to cause any asbestos related 3 disease. 4 Q. Dr. Abraham, I would like you to assume that 5 Mr. Ginter testified on Friday and this morning that the 6 Ford instruction manual for the FAST machine indicated he 7 had to prepare a one half inch by one half inch piece of 8 friction specimen in order to test it on the FAST machine. 9 Can you give the jury an idea that substance that size that 10 contains forty to sixty percent asbestos, how many asbestos 11 fibers are we talking about in that sample? 12 A. Well, I didn't hear how thick it was, but let's say 13 quarter of an inch or something like a brake pad for 14 example. In that size that would probably weigh at least 15 two or three grams or more. So there would probably be 16 trillions of fibers in that one sample. 17 Q. Can you see an individual asbestos fiber with your 18 eye if we're looking in the air right now? 19 A. No. I don't know of any that are big enough to see 20 without a microscope. 21 Q. Why can't we see them? 22 A. They're just too small. 23 Q. At what concentrations can you see a person begin to 24 see asbestos fibers in the air? 25 A. Well, when there's enough in the air to scatter LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 313 1 light. So if there's a bright light source, you've all seen 2 sun coming through the window and showing dust in the air, 3 so it's possible if there's several fibers or dozens of 4 fibers in a very small volume of air that you can see that 5 when bright light goes through it. But the light in this 6 room you would need much more concentration to look dusty. 7 Q. Doctor, going back to the model of the lungs, can you 8 show the jury, if you can step down, how an asbestos fiber 9 from the air enters a person's lungs and the route that it 10 travels? 11 A. Did you want me to come over there again? 12 Q. Yes, please. 13 A. So when you breathe, you breathe in either through 14 your nose or your mouth and the air ultimately goes through 15 the windpipe. You can see here this would be the vocal 16 cords, the air goes through there. It goes down through the 17 trachea to these bronchi. You can see where the trachea 18 divides so there's one going to the left lung and one going 19 to the right lung. So whenever you breathe in asbestos 20 fibers, it goes in through your nose or mouth, goes down 21 through the trachea or windpipe and then goes through these 22 branches and they keep getting smaller and smaller. These 23 bronchi until they get out to the alveoli which whatever you 24 breathe in can ultimately if it's small enough make its way 25 out to deposit very smallest airways called bronchiales or LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 314 1 actually deposit the alveoli themselves. 2 Q. Thank you. Doctor, the jury heard this term for the 3 first time in openings called latency. Can you tell us in 4 medicine what does the term latency mean? 5 A. Yes. It's a very important concept not just with 6 asbestos but with many diseases that are caused by toxic 7 materials. If you pour acid on your hand, you will know 8 right away that's an injury. That's very short latency like 9 a few seconds. But if you breathe in something toxic like 10 asbestos although at the microscopic level inside your lung 11 there could be damage to cells and changes going on, you 12 won't notice a disease probably for many, many years. 13 That's what's the latency that's used medically is from the 14 time you first inhale something such as asbestos to the time 15 a disease would become evident clinically. For example, if 16 you had chest pain as the first sign of your mesothelioma or 17 difficulty breathing, so that might be thirty years after 18 your first exposure or twenty years or forty years. That 19 would be the latency. It's measured as a time from your 20 first exposure to something to asbestos for example and the 21 recognition of a disease. 22 Q. Can a person be healthy for thirty years and suddenly 23 develop an asbestos disease? 24 A. Well, they can be apparently healthy. They can be 25 asymptomatic would be a better term because all this time LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 315 1 the injury happened and the reaction to it is progressive. 2 The cancer doesn't happen suddenly. It may show up suddenly 3 but it's been going on for a period of time before it 4 becomes evident. 5 Q. Does a person have to be exposed to asbestos right up 6 to the time they develop an asbestos disease? 7 A. You mean until the time they're diagnosed with it? 8 Q. Correct. 9 A. No. In fact, usually it's usually -- the disease has 10 been in existence for several years before it becomes 11 evident and the asbestos exposure might occur thirty years 12 earlier and stop and then someone is still at risk of 13 getting the disease from it thirty years later. 14 Q. Doctor, in this case, I'd like you to assume that 15 between 1968 and 1983 Mr. Ginter was exposed to asbestos. I 16 would like you further assume that Mr. Ginter was diagnosed 17 with mesothelioma in March of 2010. My question, doctor, is 18 that what is meant by latency, the period of time from his 19 exposure to asbestos until the time in 2010 when he actually 20 shows symptoms of the disease? 21 A. Well, the latency in his case would be from that 22 first date which you said was '68. So '68 to 2010 which is 23 thirty-two years, right? No -- thirty-two years. 24 Q. 42. 25 A. 42. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 316 1 Q. And is latency for mesothelioma, is that generally 2 recognized in the medical community? 3 A. Yes. I mean mesothelioma is one of the diseases 4 that's recognized to have one of the longest latencies 5 between exposure and development or diagnosis of that 6 disease. 7 Q. What does the term dose response mean? 8 A. That refers to a measurement of the dose, amount of 9 material someone is supposed to. That's calculated by 10 taking the concentration for example in the air, times the 11 number of years you're exposed to it at that concentration. 12 So if you're exposed to one fiber per cubic centimeter and 13 you have that same exposure for twenty years assuming it was 14 even, which rarely is, but that would be a dose, cumulative 15 dose called 20 fiber years. So it's fibers per volume of 16 air. In most cases it's per cubic centimeter times the 17 number of years. So that's the dose. It's measured by 18 cumulative exposure. In other words, the sum, adding up all 19 the exposures the person has had and then the response would 20 be the disease, whether they have mesothelioma or some other 21 asbestos related disease and that's measured for a group of 22 people. So you can look at the number of people out of a 23 group of a certain size that developed the disease compared 24 with the dose. There's called a positive dose relationship; 25 as the dose goes up, the disease, chance of getting the LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 317 1 disease or its severity in some cases also goes up. 2 Q. Doctor, in the example I gave you of Mr. Ginter 3 wherein he was exposed to asbestos between 1968 and 1983, 4 and developed mesothelioma in 2010, is each exposure to an 5 asbestos fiber Mr. Ginter breathed in from 1968 through 1983 6 substantial in contributing to his mesothelioma in 2010? 7 A. Yes. I mean that's the whole concept of the 8 cumulative exposure being the sum of each and each 9 incremental increase in exposure increases the chance this a 10 person will get the disease. And someone that actually gets 11 the disease, of course their chance is one hundred percent 12 if they already got it. So it's not a question of what were 13 his chances 'cause he actually got it. So he had a one 14 hundred percent risk for mesothelioma and his cumulative 15 exposures is what's generally used to classify it as its 16 cause. 17 Q. Doctor, if I took this plastic cup and I took an eye 18 dropper with a drop of water and I put a drop of water in 19 this cup at a drop at a time until the cup overflows with 20 water, can you tell us which drop of water caused the cup to 21 overflow? 22 A. Well, it was all of them that added up to more than 23 the cup could hold. 24 Q. And does that analogy, that comparison relate to 25 asbestos exposure at all? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 318 1 A. It does accept that asbestos didn't evaporate like 2 the water so it's more potent and one of the important 3 things is that even if there's a low exposure there's no 4 recognized safety threshold of exposure. So not only does 5 each exposure add up but if one of them and some had gotten 6 the disease, it would have been enough for the cause because 7 there's no threshold, no safe level. 8 Q. Doctor, I'm now going to turn to the cancer Mr. 9 Ginter has called pleura mesothelioma. What is pleura 10 mesothelioma? 11 A. Well, pleura refers to if the pleura that I talked 12 about meaning the location and mesothelioma means a cancer 13 that arises in the cells that normally make up the lining of 14 the pleura. They're called mesothelial cells. When those 15 cells get enough changes in them genetically that they can 16 grow out of control as a cancer, then the kind of cancer 17 that develops in the pleura is called a mesothelioma. 18 Q. Is there any known cure for pleura mesothelioma? 19 A. Not at present. It's a disease where there's some 20 rare long term survivals but nobody has yet come up with a 21 good chemotherapy. The surgery such as Mr. Ginter had is an 22 attempt to prolong life if not cure and hopefully it will 23 cure but we just don't know. 24 Q. What are the ranges of survival for a person who gets 25 pleura mesothelioma? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 319 1 A. Well -- 2 Q. In the literature? 3 A. Most people that develop mesothelioma have a survival 4 from the time of diagnosis of somewhere around the order of 5 a half year to year and a half. It's a pretty bad kind of 6 cancer to get. 7 Q. Doctor, does cigarette smoking play any role 8 whatsoever in causing pleura mesothelioma? 9 A. No. People have studied that a lot because obviously 10 you would think that cigarette smoking causes lung cancer 11 might also contribute to the development of mesothelioma. 12 But so far despite lots of studies around the world nobody 13 has shown that there's any link between smoking and 14 mesothelioma. 15 Q. Is your mike on? 16 A. Yes. 17 Q. Dr. Abraham, do you have an opinion you can state to 18 a reasonable degree of medical certainty what the main cause 19 of pleura mesothelioma is in the United States? 20 A. Yes. I mean not just in the United States but around 21 the world the main cause, practically the only cause is 22 asbestos exposure. 23 Q. What do you base that opinion on? 24 A. Well, it's based on the knowledge that I've gained by 25 reading about this since 1972. Since studies around the LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 320 1 world have shown mesothelioma is related to asbestos 2 exposure. There was just an article in a leading medical 3 journal Lanson within a few months ago that says where 4 there's mesothelioma there's asbestos. That's pretty 5 clearly the first thing someone thinks about when someone 6 has a mesothelioma as far as the cause. That's recognized 7 by all the leading medical journals that have written about 8 or published articles about mesothelioma and by national or 9 international regulatory agencies all classify asbestos as 10 an agent, toxic material that's known to cause mesothelioma. 11 Q. What does the term in medicine signature tumor mean? 12 A. Well, it means something that when you see it it 13 should make you first think of something else. So as I was 14 just saying, when you see a mesothelioma, it should be a 15 question that the doctor would ask the patient, have you had 16 asbestos exposure and then to take a decent and thorough 17 history to find out not only if they've had exposure but 18 when, what kind of exposures have they had. 19 Q. Is mesothelioma a signature tumor for any specific 20 toxic substance? 21 A. As we just said, it's a -- having a patient with 22 mesothelioma should make the doctor think about asbestos 23 exposure. 24 Q. What is the general clinical course of a person who 25 gets pleura mesothelioma? What can they expect? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 321 1 A. Well, it's usually not pleasant. They can expect the 2 tumor to grow and surround the lung, sometimes making one 3 lung not function at all. And it should sometimes be 4 accumulating fluid in the space between the lung and the 5 chest wall; a pleura effusion could be there. It can go 6 into the chest wall and cause pain. I'm sure these are 7 things Mr. Ginter knows about. 8 Q. Does mesothelioma stay confined to the lung area? 9 A. Not always. I mean sometimes it stays confined to 10 the lung as long as the person lives but sometimes it can 11 also show what other cancers do. It can spread to lymph 12 nodes as it did in Mr. Ginter's case and it could spread to 13 other parts of the body occasionally. 14 Q. Is there a latency period with respect to this 15 cancer, pleura mesothelioma? 16 A. Well, generally as I said it has very good latency. 17 Most people that get a mesothelioma have a latency of over 18 20, 30 years from the time -- from their first exposure. 19 Some could be much longer. And a few are a little bit 20 shorter. I think the shorter is maybe ten or fifteen years 21 but that's very unusual. 22 Q. Doctor, let me ask you this: Do you have to breathe 23 in a lot of asbestos fibers in order to get pleura 24 mesothelioma? 25 A. No. It's one of the diseases with the most sensitive LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 322 1 indications for exposure because some people with seemingly 2 trivial exposure in childhood, for example, no other 3 exposure the rest of their life may deal a mesothelioma 40, 4 50, 60 years later. Some people occupationally have just 5 had a very minimum exposure and that's still enough to cause 6 mesothelioma. So there's no lower limit on what's known 7 about a threshold for exposure to asbestos. 8 Q. As a board certified pathologist with a specialty in 9 occupational medicine, has there ever been any safe level of 10 asbestos exposure established at the work place for the 11 prevention of mesothelioma? 12 A. None other than zero that I'm aware of. 13 Q. What does that mean to us in lay person's terms? 14 A. Well, there is no safe threshold except none. 15 Q. I'm going to show you - 16 MR. PONTERIO: I would like to have this 17 marked, please. 18 (Whereupon the reporter marked the 19 USCA as Plaintiff's 20 Exhibit #6 for identification.) 21 BY MR. PONTERIO: 22 Q. Are you familiar with the United States Code 23 Annotated on asbestos? 24 A. Not something I read everyday. 25 THE COURT: What is the exhibit? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 323 1 MR. PONTERIO: 6. 2 BY MR. PONTERIO: 3 Q. You've seen this document before? 4 A. Yeah. I'm not sure it's the exact same volume, but 5 I've seen reference to it and I've seen excerpts from it. 6 Q. And has it been determined whether -- what does it 7 say about medical science? 8 MR. CROSBY: Objection. 9 THE COURT: What's the section? 10 MR. PONTERIO: It's titled 20 U.S. Code 11 Annotated to Section 3601. And I would like the Court 12 if I can ask the Court to take judicial notice of this 13 federal statue. 14 THE COURT: 3601 congressional statement of 15 findings and purposes, two pages and this particular 16 volume has been handed to me and that's a judicial - 17 that's appears to be an adopted statue of the United 18 States Code. 19 BY MR. PONTERIO: 20 Q. What is reported in this statue regarding what the 21 safe level of asbestos exposure is? 22 A. Well, the paragraph that's number three, it says 23 medical science has not established any minimum level of 24 exposure to asbestos fibers which is considered to be safe 25 to individuals exposed to the fibers. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 324 1 MR. PONTERIO: Your Honor, I would like to 2 move just that section in, just that particular section 3 in. 4 THE COURT: All right. 5 MR. PONTERIO: I blacked out the rest. 6 THE COURT: All right. Why don't you have 7 that marked as Exhibit 6A and I assume you may want to 8 use that for the jury. 9 MR. PONTERIO: 6A. 10 MR. CROSBY: I assume we'll have an 11 opportunity - 12 THE COURT: Wait a minute. She's marking it. 13 (Whereupon the reporter marked 14 Section 3601 of USCA as Plaintiff's 15 Exhibit #6A for identification.) 16 MR. PONTERIO: Dr. Abraham - 17 THE COURT: Now, you had a question? 18 MR. CROSBY: Yes, Your Honor. 19 THE COURT: And the question is? Speak up. 20 MR. CROSBY: The Court has taken judicial 21 notice of the entire section. I assume we'll have an 22 opportunity to put in a section - 23 THE COURT: If there's other parts of the 24 section that you think are appropriate, you can offer 25 them at the appropriate time. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 325 1 MR. CROSBY: Thank you. 2 (The document referred to as 3 Plaintiff's Exhibit 6A 4 was received in evidence.) 5 BY MR. PONTERIO: 6 Q. Doctor, in occupational medicine involving asbestos 7 disease, approximately how many different products contained 8 asbestos at one time or another? 9 A. Well, I don't know exactly but I think as I mentioned 10 it's several thousand. 11 Q. And with respect to those range of products that 12 contained asbestos, what is the toxic substance in each of 13 those products that causes mesothelioma? 14 A. It's asbestos. 15 Q. And doctor, what is epidemiology? 16 A. Well, epidemiology means the studies of groups or 17 populations. 18 Q. And do you need to have an epidemiological study on 19 each separate asbestos product before determining whether it 20 causes mesothelioma in human beings? 21 A. I don't think that would be logical if you know the 22 material that's common to all of the products, whatever 23 their number, if you know that material is asbestos and 24 capable of causes mesothelioma, it doesn't matter if it's 25 one product or another as long as you're assuming that LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 326 1 there's exposure from that product. 2 Q. With respect to products that contain asbestos, at 3 what point is a worker at risk for asbestos disease? 4 A. When they inhale asbestos the first time. 5 Q. And Dr. Abraham, I would like you to assume in this 6 case that Mr. Ginter testified that during a three year 7 period of time from late 1979 to 1982, he tested friction 8 materials that contained forty to sixty percent asbestos on 9 a FAST machine. I would like you to further assume that in 10 preparation of the friction material sample in order for 11 them to fit into this FAST machine Mr. Ginter followed the 12 Ford instruction manual that indicated that he use either a 13 hacksaw to shape the friction material a one half inch by 14 one half inch square, use a file to file down the friction 15 material and sometimes use a power grinder to shape the 16 friction materials. I'd also like you to further assume 17 that the friction material, the brake lining that's one half 18 inch by one half inch square was then put into the loading 19 arm of this FAST machine where it was ground by a motor 20 powered cast iron friction disc for ninety minutes. I would 21 like you to assume that's what Mr. Ginter testified to 22 Friday and today. I would like you further assume that 23 Mr. Ginter testified that he was in the immediate area when 24 recording the results when this FAST machine was running. 25 Do you have an opinion and you can state to a reasonable LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 327 1 degree of medical certainty whetter the filing, hacksawing, 2 grinding of this brake lining friction material released 3 asbestos fibers into the breathing zone of Mr. Ginter? 4 MR. CROSBY: Objection, Your Honor, calls for 5 speculation. 6 THE COURT: Pardon? 7 MR. CROSBY: Calls for speculation. 8 THE COURT: Objection is overruled. 9 THE WITNESS: From what you described, that 10 would be a source of releasing asbestos fibers into the 11 air and if there was no respirator or ventilation 12 involved that would prevent the exposure that would 13 have resulted in asbestos exposure. 14 BY MR. PONTERIO: 15 Q. What do you base those opinions on? 16 A. Well, what you told me is that the material contained 17 a high percentage of asbestos and we've already talked about 18 the fact that that high percentage of asbestos or even much 19 lower one can be the source of millions or billions or even 20 trillions of fiber of asbestos. So it doesn't take removal 21 of much of that material into the air such as by cutting or 22 grinding or sawing to result in fibers getting into the air 23 and someone breathing them if they're in that vicinity. 24 MR. PONTERIO: If you could mark this please. 25 (Whereupon the reporter marked the LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 328 1 Guidance for Preventing Asbestos as 2 Plaintiff's Exhibit #7 for identification.) 3 BY MR. PONTERIO: 4 Q. I'm going show you Plaintiff's Exhibit 7 and first 5 off, can you tell the jury what is the Environmental 6 Protection Agency, the EPA? 7 A. Well, it's a federal agency set up to reduce hazards 8 in the environment of all sources and I think it was set up 9 around, late '60s or early '70s under the Nixon 10 administration. 11 Q. And this document Exhibit 7, have you seen this 12 document before by the EPA? 13 A. I think I have over the years, yes. 14 Q. And is this a -- one of the documents, one of several 15 that you rely upon in formulating opinions on whether 16 asbestos materials in brake linings release asbestos fibers? 17 A. Well, it's one of them, yes. It's a government 18 report summarizing the reasons why the government, why the 19 EPA thought it was important to warn people about it. 20 Q. What's the name of that document? 21 A. It's called Guidance for Preventing Asbestos Disease 22 Among Auto Mechanics. It's from 1986. 23 Q. And does the EPA report on working with friction 24 materials in the same or similar manner that Mr. Ginter did, 25 whether that releases asbestos fibers to the worker? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 329 1 MR. CROSBY: Objection, Your Honor. 2 THE COURT: State the extent and nature of 3 the objection on the record in full. 4 MR. CROSBY: Mr. Ginter is not an auto 5 mechanic. 6 THE COURT: Sorry? 7 MR. CROSBY: Mr. Ginter is not an automatic 8 mechanic. 9 THE COURT: That's true. 10 MR. CROSBY: The question was does this talk 11 about Mr. Ginter. 12 THE COURT: I haven't read it. Have you read 13 it? 14 MR. CROSBY: I have not. 15 THE COURT: I think we ought to take a minute 16 and see what's in it 17 MR. CROSBY: Sure. 18 THE COURT: Counsel, if you would like to 19 review that. 20 MR. PONTERIO: Sure. 21 THE COURT: And you can give it back to me 22 and I'll take a look at it. Would not surprise me if 23 there were generic material in there that would apply 24 to exposures other than through auto mechanics knowing 25 the government. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 330 1 MR. CROSBY: I have no objection. 2 THE COURT: All right. Received. 3 (Whereupon People's Exhibit 7 was entered 4 into evidence). 5 BY MR. PONTERIO: 6 Q. My question, sorry doctor, was does the Environmental 7 Protection Agency report on what if any the level of 8 asbestos fibers that are released when a person such as 9 Mr. Ginter works on a brake lining with a grinder or filing, 10 do they report on the levels of asbestos fibers released? 11 A. I'm trying to see where it has numbers. 12 THE COURT: Well, we're going to take a break 13 now. Let one of the jurors indicated he or she would 14 like to take a break. So we'll take a ten minute 15 break. 16 (Whereupon a recess was taken). 17 (Whereupon the reporter marked the 18 Two Slides as Plaintiff's 19 Exhibits 8 and 9 for identification.) 20 (Whereupon the reporter marked the 21 Letter as Plaintiff's 22 Exhibit 10 for identification.) 23 (Whereupon the reporter marked the 24 Four Slides as Plaintiff's 25 Exhibit 11 through 14 for identification.) LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 331 1 THE COURT: Bring the jury in. 2 BY MR. PONTERIO: 3 Q. Doctor, when we left off, I asked you what does the 4 Environmental Protection Agency report about the levels of 5 asbestos fibers if any that are released from friction 6 materials, brake linings that contain asbestos when they are 7 manipulated in the way that Mr. Ginter did by grinding or 8 filing. 9 A. Yeah. Well, what that report says is that millions 10 of asbestos fibers can be released during brake and clutch 11 servicing. 12 Q. And the next sentence? 13 A. It says grinding and beveling friction products can 14 cause even higher exposures. 15 Q. Doctor, have you ever heard the expression that 16 asbestos has no onion properties? 17 A. I think so. Meaning that it can't burn your eyes by 18 a smell. It doesn't have a gaseous release from it that is 19 irritating like cutting an onion. 20 Q. Let me ask you this: As you a physician in 21 occupational medicine, how is a worker to know how he or she 22 is exposed to a potentially harmful invisible asbestos fiber 23 that has no offensive qualities to them? 24 A. Only if someone tells them. 25 Q. Doctor, in the United States, what are the three LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 332 1 principle commercial forms of asbestos fibers? 2 A. Well, there's three different names. One is called 3 amosite. One is called crocidolite. And one's called 4 chrysotile. Those are main three types commercially. 5 Q. First I'm going to show you before I put it up 6 Exhibit 8. Can you identify what that is for us? 7 A. Yes. It's a photograph or slide showing pictures 8 taken with an electron microscope of three different types 9 of asbestos, the three that I mentioned. 10 Q. Is that fair and accurate depiction of what the three 11 principle commercial asbestos fibers look like under 12 microscope? 13 A. Yes. 14 Q. I'm going to show you this exhibit that we just 15 referenced and let's start with the chrysotile fiber on the 16 left-hand side of this picture. What does a chrysotile 17 fiber look like? 18 A. Well, as I mentioned earlier they're -- the 19 individual fibers are too small to see without a very 20 powerful microscope. This is taken with an electron 21 microscope so you can see individual fibers. 22 Characteristically for chrysotile it has this curved 23 appearance or bending like a snake. 24 Q. I think this has a laser if you want to point at it. 25 A. So the chrysotile is on the left here. The fibers LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 333 1 are actually very flexible and can curve which leads to the 2 name of the mineral family that it comes from called 3 serpentine or snake-like. So that comes from the serpentine 4 family. 5 Q. And where do the chrysotile asbestos fibers come 6 from, what part of the world? 7 A. Well, they're -- it's found in different parts the 8 world, but the main source of the chrysotile or of the 9 asbestos used in the U.S. has been from Canada, from the 10 mines up around Tetford, actually a town called Asbestos. 11 Q. And in the literature, what percentage of the 12 asbestos products that were used in this country contain 13 chrysotile asbestos fiber? 14 A. I think it's been reported about ninety-five percent. 15 So it's been the predominate type of asbestos fiber used. 16 Q. Going to the next fiber, amosite. What is an amosite 17 asbestos fiber? 18 A. Well, amosite as you can see in this picture taken at 19 about the same magnification several thousand times with the 20 electron microscope, these are straighter fibers. They're 21 less flexible than the chrysotile. Their chemical 22 composition is shown on the bottom. So the amosite fibers 23 have a somewhat different chemical composition with iron as 24 well as magnesium and silicone and they're in a group called 25 amphiboles which includes amosite and crocidolite and LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 334 1 others. 2 Q. Where do amosite asbestos fibers come from, what part 3 of the world? 4 A. Well, actually it gets its name from -- amosite came 5 from asbestos mines of South Africa, so that comes from 6 South Africa as does most of the crocidolite. 7 Q. Let's turn to the crocidolite fiber. What is 8 crocidolite fiber? 9 A. Well, it's another type of asbestos that's been used 10 commercially. Again it's a straight, less flexible fiber 11 and it also comes from South Africa and has a slightly 12 different chemical composition than amosite. 13 Q. In the medical literature, what percentage of 14 products that contain asbestos that was used in this country 15 actually contain the amosite or the crocidolite fiber? 16 A. Well, if the crocidolite estimate was ninety-five 17 percent, than it would be on the order of five percent or so 18 that would have had amosite or crocidolite. Maybe a little 19 more where there's a mixed use in some products between 20 crocidolite and some of the others. 21 Q. Dr. Abraham, do you have an opinion you can state to 22 a reasonable degree of medical certainty whether all of 23 these types of asbestos fibers individually cause pleura 24 mesothelioma in humans? 25 A. Yes. They're all recognized to be able to do that LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 335 1 and have done that. 2 Q. And with respect to the chrysotile fiber on the left, 3 I'm going to show you what's been marked Plaintiff's Exhibit 4 9 and before I put it up on the -- what is this Exhibit 9 5 show? 6 A. Exhibit 9 is a slide listing some of the regulatory 7 agencies nationally and internationally that have concluded 8 that chrysotile asbestos causes mesothelioma. 9 Q. And as an expert in this case in formulating your 10 opinions that the chrysotile asbestos fiber causes 11 mesothelioma in humans, do you rely on some of those 12 regulatory agencies? 13 A. Well, I refer to them. I rely more on the underlying 14 evidence that they relied on to reach those conclusions, the 15 scientific evidence. 16 Q. I'm going to show you what are some of the agencies, 17 government bodies and industrial agencies that have been 18 concluded that the chrysotile fiber causes mesothelioma by 19 itself. 20 A. Well, there's the EPA that we mentioned before. The 21 National Academy of Sciences. The Consumer Product Safety 22 Commission. NIOSH. 23 Q. What is NIOSH? 24 A. NIOSH is the National Institute for Occupational 25 Safety and Health. And OSHA, Occupational Safety and Health LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 336 1 Administration. There's the Department of Health and Human 2 Services. American Cancer Society. So forth so forth. 3 Q. Thank you. Doctor, did there come a time my office 4 forwarded to you pathology materials in the case of James 5 Ginter? 6 A. Yes. 7 Q. And did you issue any report based upon your 8 examination of the pathology materials of Mr. Ginter? 9 A. Yes, I did. 10 Q. I'm going to show you what's been marked Plaintiff's 11 Exhibit 10 and can you tell the jury what that two page 12 document is? 13 A. Yes. That's the report that I prepared and sent 14 September 10th, 2010. 15 Q. And can you first off tell the jury what types of 16 pathology materials of Mr. Ginter's did you review, what 17 parts of the body did they come from? 18 A. Well, they came from his pleura and his lung. First 19 he had a pleura biopsy, just a sampling of the pleura in 20 March of 2010. That enabled the pathologist to make the 21 diagnosis of mesothelioma. And then he had the further 22 surgery where his entire lung and a lot of the pleura was 23 removed in June of last year. 24 Q. Dr. Abraham, I would like you to assume in this case 25 that the parties agree that Mr. Ginter has pleura LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 337 1 mesothelioma and that his mesothelioma was caused by 2 asbestos exposure. My question to you, doctor, are there 3 ways that a pathologist can determine if a person's lung 4 tissue contains asbestos fibers? 5 A. Yes. The lung tissue can actually be analyzed using 6 what's called fiber analysis. 7 Q. What is that process called? What is the term 8 called? 9 A. Well, it's sometimes called a digestion study where 10 the lung biological tissue is actually digested with an 11 enzyme or bleach for example to remove the cellular material 12 to leave behind the material asbestos and other materials 13 that aren't soluble and then that's used to determine the 14 concentration, number of asbestos fibers in the lung and the 15 types and sizes of those asbestos fibers. 16 Q. Now, did my office request that a lung fiber analysis 17 be conducted on a piece of Mr. Ginter's lung tissue? 18 A. Yes. When he has his lung removed the pathologist 19 had saved some of the lung tissue for examination and 20 portions of that can be used for that lung fiber analysis. 21 Q. And what type if any of asbestos fiber did you find 22 predominantly in Mr. Ginter's lung tissue? 23 A. Well, the most frequent type of asbestos fiber would 24 be found was chrysotile. 25 Q. And is the chrysotile fiber found in brake linings, LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 338 1 is that the material in brake linings? 2 A. Well, that's the main type of asbestos as far as I'm 3 aware used in most brake linings or was used in brake 4 linings. 5 Q. Did you take -- have any pictures actually taken of 6 these fibers that were in Mr. Ginter's lung? 7 A. Yes. There's pictures of fibers as they were 8 examined in the electron microscope that were collected on a 9 filter and so the filter is there with the fiber sitting on 10 top of the filter. 11 Q. Did you bring those pictures with you today for the 12 jury? 13 A. Yes. 14 Q. I'm going to show you what's been marked Plaintiff's 15 Exhibit 11 through 14 and what are these pictures of before 16 I put them on the wall? 17 A. These are four pictures taken with the electron 18 microscope showing the fibers, some of the fibers that were 19 found on the filter from Mr. Ginter's lung tissue. 20 Q. I'm showing you what's been marked Plaintiff's 21 Exhibit 11 and what is this a picture of? 22 A. Well, this is a picture of one fiber. It's probably 23 hard to see in the room with any light on it, but basically 24 what I hoped some of you can see is little holes here. This 25 is the filter material. And it has little pours that allows LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 339 1 liquid to go through and the insoluble material in the fluid 2 after digesting the tissue is trapped on the surface and 3 what you can see here I hope is an elongated structure 4 that's a fiber and the little cross hairs plus signs here 5 that are red show where the chemical, actual chemical 6 information is collected from those fibers. That tells us 7 what kind of fiber it is. 8 Q. What type of fiber did you find when you examined Mr. 9 Ginter's lung tissue? 10 A. Well, this particular one is a chrysotile fiber. 11 Q. If you could click onto the next slide. Showing you 12 what's been marked Plaintiff's Exhibit 12, what does this 13 picture depict? 14 A. Again, it's probably hard to see with the light on 15 but there's a curved fiber you can see running from here 16 down to about here where there's a piece of dust that's not 17 a fiber. And again that one by chemistry was analyzed with 18 a plus size in it, two different spots. And it showed a 19 composition identifying it as a chrysotile fiber. 20 Q. Now, turning back to your report on Page 2, Dr. 21 Abraham, can you tell the jury what concentration of 22 chrysotile asbestos fibers were found in Mr. Ginter's lung 23 tissue? 24 A. Yes. In the particular analysis that was done -- I 25 may need to explain a little bit, but each fiber that we LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 340 1 find represents in this particular analysis eight thousand 2 fibers per gram. So you want me to explain very briefly? 3 Q. Please. I would like you to explain how, what the 4 concentration you found and how you arrived at that number. 5 A. Basically a certain weight of tissue is digested and 6 then it's put -- it's digested in bleach and then that's 7 filtered onto the filters. So if the entire filter was 8 examined and you found one filter, that would be one fiber 9 per gram. Since you're looking at this filter in the 10 microscope at very high magnification, it would take days to 11 look at the entire filter. To what's done is an 12 extrapolation. So if we knew let's say there was one gram 13 of tissue but we only looked at one percent of the filter 14 surface area, then finding one fiber would represent ten 15 fibers per -- one hundred fibers per gram. Actually it's a 16 smaller amount because of the magnification of several 17 thousand times. Taking into account the weight of tissue 18 that was digested and the area of the filter is calculated 19 that each one found represents eight thousand per gram of 20 tissue. That's basically what's called a detection limit as 21 well. If it was at a lower concentration than the detection 22 limit, that analysis wouldn't be able to detect it. So each 23 of these two chrysotile fibers that I've shown you 24 represents eight thousand. So the total chrysotile fibers 25 in that analysis was 16 thousand fibers per gram. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 341 1 Q. And can you tell us what is the significance if any 2 to this jury of the finding of 16 thousand chrysotile 3 asbestos fibers per gram of dry lung tissue in Mr. Ginter's 4 lung? 5 A. Yeah. 6 Q. Do you need water? 7 A. I have water. The one more thing has to be taken 8 into account. Not only there's a fiber there, but the 9 length of the fiber because in the general population if you 10 haven't had any occupational asbestos exposure, nearly all 11 the asbestos fibers found in somebody's lungs are very much 12 shorter than this. They're usually less than a micron in 13 length and studies that have been done on people with no 14 known asbestos exposure find that only about less than one 15 percent of all the chrysotile fibers found are longer than 16 ten microns. Both these fibers were longer than ten microns 17 and the concentration of fibers of that length would be 18 extremely unusual to find in the general background 19 population. So these are evidence that Mr. Ginter did have 20 in fact exposure to chrysotile occupationally. 21 Q. On the job? 22 A. Yes. 23 Q. That leads me to my next question. In the second to 24 last paragraph of your report you discussed a term called 25 background concentration. What does that term background LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 342 1 concentration mean? 2 A. Well, that refers to the fact that we all have some 3 exposure to dusts of one kind or another in the air we 4 breathe. If we look at the lungs of people that have no 5 history, no knowledge at all and in fact no demonstrative 6 history of asbestos exposure, there's a certain amount of 7 asbestos found in their lung that would be the general 8 population background. So that's what findings in a case 9 such as Mr. Ginter can be compared with. 10 Q. What is the background number for chrysotile asbestos 11 fibers longer than ten microns, the size of Mr. Ginter's? 12 A. Right. As I mentioned in the general background it's 13 extremely unusual to find such long fibers of chrysotile and 14 the background has been estimated at no more than ten 15 thousand fibers of that length per gram of tissue. 16 Q. And you found 16 thousand? 17 A. Yes. 18 Q. Of the length of ten micrometers? 19 A. Actually one of them was 13 and one was 14. 20 Q. Now, in your report you referenced a term called 21 magnesium depleted chrysotile. Can you tell the jury what 22 does that term mean? 23 A. Yes. What that means is the standard of chrysotile 24 that we went by a few slids ago showed that it has magnesium 25 and silicone as its main elements other than oxygen and in LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 343 1 the chrysotile that comes out of the ground there's a fairly 2 high ratio, nearly similar size analytical peaks for 3 magnesium and silicone. With time as chrysotile fibers are 4 in the body, some of the magnesium is dissolved out. So 5 sometimes we'll find what are called magnesium depleted 6 chrysotile that don't have the same amount of magnesium as 7 they had when they were fresh minerals. So finding those 8 indicates that they've been in the lung for some period of 9 time. Maybe months or years. 10 Q. Now, doctor, in addition to the chrysotile asbestos 11 fiber -- let me ask, you what is an asbestos body? 12 A. Well, asbestos body is a structure that's formed on 13 an asbestos fiber. So when an asbestos fiber gets inhaled, 14 some of the asbestos fibers get taken up by the macrophage 15 cells in the bodies. Sort of like the word means big eater. 16 They try to engulf the fiber and carry it out of the lung 17 reducing its ability to cause harm. Just like picking up 18 germs. So these macrophage cells pick up fibers and deposit 19 protein and iron on them leaving them coated and sometimes 20 those become big enough to see with a light microscope. 21 Those are called asbestos bodies when it's not the fiber 22 only but it's a fiber that has this coating deposited on it. 23 Q. Did you find any asbestos bodies in Mr. Ginter's lung 24 tissue? 25 A. Yes. Actually I didn't find any with the light LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 344 1 microscope, ordinary light laboratory microscope. But we 2 did find in the electron microscopic analysis on the filter. 3 Q. Do you have a picture of that? If you can click on 4 the next item. 5 A. It's called Exhibit 13. 6 Q. What is shown in Exhibit 13? 7 A. Well, this is two pictures of the asbestos body. And 8 in the very center running along is -- you can see this 9 image. In this brighter imagine there's a little thin core 10 and that core is the core asbestos fiber inside this 11 asbestos body. Since it's coded with iron material, 12 protein, it's very hard to get the exact chemical 13 compensation of this fiber. But this fiber is a very thin 14 fiber. I think it was less than -- well, it was about a 15 tenth of micron in diameter. And you can't be sure but it 16 matched probably with chrysotile. 17 Q. At what concentrations were the asbestos bodies found 18 in Mr. Ginter's lung tissue? 19 A. Well, in this analysis this was done at much higher 20 magnification, so an even smaller part of the filter was 21 searched and I believe that one was 96 thousand fibers per 22 gram. 23 Q. What is the significance to this jury in deciding 24 this case of finding asbestos bodies in Mr. Ginter's lung 25 tissue? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 345 1 A. Well, it's just another indication that he had 2 asbestos exposure above background. 3 Q. Work related exposure. 4 A. "Yes. 5 Q. Now, doctor, did you find any other types of asbestos 6 fibers in Mr. Ginter's lung tissue? 7 A. I didn't in the analyses that we did. 8 Q. Did you find any tremolite asbestos fibers? 9 A. Yes. 10 Q. And did you take a picture of those? 11 A. Maybe. Let's see. Exhibit 14. 12 Q. If you could. 13 A. Yeah. So that shows a thicker fiber running this way 14 and it was shorter. I think it was about 7. 15 Q. Now we haven't heard that term before but is 16 tremolite another type of asbestos fiber? 17 A. Yes, it is. Tremolite is another of the straight 18 less flexible fibers called amphiboles but it's not used 19 commercially on its own. It's usually found on a 20 contaminate especially chrysotile because it occurs in the 21 same kind of geological deposits. 22 Q. You say it's a contaminate of the chrysotile asbestos 23 fiber, can be? 24 A. It can be a contaminate of it or curves jointly with 25 it. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 346 1 Q. What is the significance if any of finding the 2 tremolite fiber, this asbestos fiber in Mr. Ginter's lung 3 tissue? 4 A. It goes along with the history of asbestos exposure 5 and it's the kind of asbestos you might expect to find in 6 somebody that had chrysotile exposure, might also find some 7 tremolite exposure. 8 Q. Now, can you give the jury an idea what the size of 9 the tissue that you had, the actual wet tissue of Mr. 10 Ginter's lung that you analyzed? 11 A. Well, the actual amount received, I'm not sure I have 12 the weight. But it was a pretty small piece of lung tissue. 13 Maybe a quarter of an inch or so in dimension. And from 14 that portion was removed and weighed and then digested. So 15 it was less than a gram was on the order. Probably less 16 than a tenth of a gram. 17 Q. Now, Dr. Abraham, turning to the bottom of the first 18 page of your report, did you have any slides that were taken 19 of Mr. Ginter's pleura tissue to review? 20 A. Yes, I did. I had the slides from his biopsy and the 21 slides from his lung removal surgery. 22 Q. And did you find any asbestos fibers or asbestos 23 bodies in the slides that you looked at? 24 A. In the light microscope. No, I wouldn't expect to 25 find asbestos fibers 'cause they're not usually visible in LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 347 1 the light microscope. 2 Q. Are all of the asbestos fibers that you found that 3 came from Mr. Ginter's lung tissue? 4 A. Yes. 5 Q. Now, doctor, once again, I'm going to assume in this 6 case there's no dispute Mr. Ginter has pleura mesothelioma 7 and that his mesothelioma was caused by his occupational 8 exposure to asbestos. My question to you, do you have an 9 opinion you can state to a reasonable degree of medical 10 certainty whether the chrysotile asbestos fiber you found in 11 Mr. Ginter's lung tissue was a substantial contributing 12 factor to the development of his mesothelioma? 13 MR. CROSBY: I'm going to object to the form 14 of that question, Your Honor. 15 THE COURT: What basis? 16 MR. CROSBY: Basis is there's - 17 THE COURT: Speak up little louder. 18 MR. CROSBY: The basis, Your Honor, is we do 19 agree he has pleura mesothelioma. We do not stipulate 20 that it is as a result of industrial exposure. 21 THE COURT: I'm sorry, do not stipulate - 22 MR. CROSBY: That it's necessarily as a 23 result of industrial exposure. 24 MR. PONTERIO: I rely on your expert reports. 25 They say otherwise. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 348 1 THE COURT: The objection is overruled. 2 MR. PONTERIO: You can answer. 3 THE WITNESS: Maybe you need to repeat the 4 question. 5 BY MR. PONTERIO: 6 Q. Do you have an opinion you can state to a reasonable 7 degree of medical certainty whether the chrysotile asbestos 8 fibers you found in Mr. Ginter's lung tissue were a 9 substantial contributing factor to the development of his 10 mesothelioma? 11 A. Yes. There were evidence that he had had exposure to 12 chrysotile and that that exposure was the substantial 13 contributing cause of his mesothelioma. 14 Q. What do you base that opinion on? 15 A. Well, based on the knowledge about chrysotile being 16 one of the kinds of asbestos known to be able to cause 17 mesothelioma. The history of his exposure. And the 18 confirmation of his exposure of chrysotile asbestos and the 19 analysis of his lung tissue and the diagnosis of his 20 mesothelioma. 21 Q. Dr. Abraham, you briefly touched upon this earlier 22 for the jury that the toxic substance, the asbestos that's 23 in a product, that's what if it's released causes 24 mesothelioma. Do you remember that testimony? 25 A. Yes. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 349 1 Q. My question to you, doctor, do you have an opinion 2 you can state to a reasonable degree of medical certainty 3 whether working with friction materials, that is brake 4 linings that contain asbestos causes mesothelioma in human 5 beings? 6 A. Yes, it can. It can. It's been reported to do so. 7 Q. What do you base that opinion on? 8 A. Well, on the knowledge that asbestos is recognized to 9 be the cause of nearly all mesotheliomas and it's recognized 10 that all kinds of asbestos are capable of causing 11 mesothelioma. And reports of medical literature of asbestos 12 being able to cause mesothelioma experimentally with 13 chrysotile and reports in the medical literature that 14 mesothelioma is related to chrysotile exposure. 15 Q. Dr. Abraham, can you tell this jury, are there any 16 federal governmental regulations from either the 17 Occupational Safety and Health Administration or the 18 Environmental Protection Agency that says working with 19 asbestos brake linings does not cause mesothelioma? 20 A. No. 21 Q. Are you aware of any international agencies, any 22 agencies in the world that have studied asbestos that 23 conclude that working with asbestos in brake linings does 24 not cause mesothelioma? 25 A. No. There's none. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 350 1 Q. We're at the tail end, doctor. I would like you to 2 assume that Mr. Ginter testified at trial this past Friday 3 and this morning that from 1979 through 1982 during a three 4 year period of time as a chemist he had to test asbestos 5 containing friction materials with the use of a FAST machine 6 which simulated a wheel of a brake drum coming in contact 7 with a brake lining. I would like you to assume he 8 testified one of the purposes of this test was to determine 9 the durability of the brake lining. I would like you to 10 further assume that Mr. Ginter's work on this FAST machine 7 11 to 10 times a month with each test that was ran on the FAST 12 machine lasting ninety minutes. I would like you to further 13 assume that Mr. Ginter testified that each time before the 14 test on the FAST machine was started, Mr. Ginter testified 15 that in preparation of the sample size of the asbestos 16 friction material that was tested on the FAST machine he 17 would follow the Ford Motor Company instruction manual for 18 the FAST machine and he would shake the asbestos, friction 19 material to a one half inch by one half inch square with the 20 use of either a hacksaw, a file or a powered grinder. I 21 would like you to assume those facts are true. I would like 22 you to assume Mr. Ginter testified that he saw visible dust 23 when he performed each one of those activities. I would 24 like you also to assume that Mr. Ginter testified that once 25 the friction material was put into this loading arm of the LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 351 1 FAST machine it was turned on and the wheel would rotate and 2 they would grind the friction material in that he would see 3 visible dust while he was present recording the results for 4 that 90 minute period. I would like you to assume he 5 testified that this friction material contained forty 6 percent to sixty percent asbestos. Do you have an opinion 7 you can state to a reasonable degree of medical certainty 8 whether this exposure to asbestos while working on the FAST 9 machine was a substantial contributing factor to the 10 development of Mr. Ginter's mesothelioma in 2010? 11 A. Yes. The way you described it, that would have been 12 a substantial asbestos exposure. 13 Q. And what do you base that opinion on? 14 A. Well, your description of the process and the 15 materials he was using and the knowledge about asbestos 16 being capable of causing mesothelioma. 17 Q. And as we talked about and you talked about earlier 18 with the cumulative effect, do you have an opinion whether 19 each of the exposures Mr. Ginter had starting in 1968 and 20 ending in 1983 or '82 also were a substantial contributing 21 factors to the development of his mesothelioma? 22 A. Yes. I mean his cumulative exposure was the cause 23 and each and every one of the things that went into that 24 would be substantial contributing causes. 25 Q. What do you base that opinion on? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 352 1 A. Well, what I've said is that asbestos exposure is 2 known to cause mesothelioma. There's a dose response 3 relationship. There's no safe threshold. So each one of 4 the individual exposure was causing mesothelioma on its own. 5 That's one of the criteria I use to call something a 6 substantial contributing cause. 7 Q. I would like you to assume Ford's counsel talked to 8 this jury about a term called forsterite. What is 9 forsterite? 10 A. Well, forsterite is a mineral that's not the same as 11 chrysotile. It can be formed when chrysotile is heated up 12 to I think five hundred or six hundred or more degrees. It 13 can actually convert the mineral from one form to another. 14 Q. Now when Mr. Ginter is using a hacksaw, using a file, 15 using a powered grinder to prepare that friction sample 16 pursuant to the Ford instruction manual, does that, any of 17 those processes create forsterite? 18 A. It shouldn't. 19 Q. Why is that? 20 A. It shouldn't be generating enough heat to do that. 21 Q. Now, once the friction material is put into the 22 loading arm of the FAST machine and the wheel is powering 23 and it's grinding, I would like you to assume there was 24 testimony it gets up to five hundred to six hundred degrees. 25 Can that create some forsterite? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM DIRECT PONTERIO 353 1 A. It's possible, yes. 2 Q. And do you have an opinion you can state to a 3 reasonable degree of medical certainty whether that process 4 of the grinding on the FAST machine also releases pure 5 asbestos fibers into the air? 6 A. Yes. From what I understand it releases material, 7 some of which might be converted but not all of it. 8 Q. What do you base that opinion on? 9 A. Well, from what I've read about grinding of 10 chrysotile materials and just understanding when you, when 11 something breaks apart when you're grinding it, it releases 12 bits of it in all different forms from the material being 13 grind. 14 Q. Does this EPA document, the Environmental Protection 15 Agency document talk about whether asbestos fibers are 16 released after the grinding of asbestos brake linings 17 against an iron drum wheel? 18 A. I didn't see that specifically in here. 19 Q. Did it talk about compressed air? I thought I saw 20 something. 21 A. I don't know if it said iron. 22 Q. Well, a drum, metal drum? 23 A. Right. It does mention asbestos fibers are released 24 during blow out of dust after grinding. 25 Q. What kind of level of asbestos fibers did the EPA LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - DIRECT - PONTERIO 354 1 find were released after a brake lining came in contact with 2 a metal drum? What levels? 3 A. I think it said millions of fibers. 4 Q. Let me just see. 5 A. It says millions of fiber can be released from drum 6 brakes for cleaning. I'm trying to see where it has the 7 drum itself. Do you know exactly where that is? 8 Q. I think I -- I think the first paragraph it talks 9 about that compressed air. 10 A. Right. In the section on using compressed air to 11 clean drum brakes, it can release up to 16 million fibers in 12 a cubic meter of air around the mechanic's face. 13 Q. 16 million asbestos fibers? 14 A. In a cubic meter. 15 Q. What size is a cubic meter? 16 A. Is like a yard by a yard by a yard. Meter by meter 17 by meter. 18 Q. Doctor, have you previously testified for clients of 19 my office that are alleging mesothelioma due to asbestos 20 exposure? 21 A. Yes. 22 Q. How long have you been testifying for clients of mine 23 in courts such as this? 24 A. I'm not sure when the first time was. Probably ten 25 years or so. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM CROSS CROSBY 355 1 Q. Are you being compensated for your time today? 2 A. Yes. 3 MR. PONTERIO: No further questions. 4 THE COURT: Cross. 5 MR. CROSBY: May I have a moment to see the 6 doctor's file? 7 THE COURT: Sure. Step up, counsel. 8 (Whereupon a bench conference was held). 9 MR. PONTERIO: Your Honor, if I can just move 10 into evidence these pictures of the asbestos fibers 11 that doctor - 12 THE COURT: Identify the exhibits. 13 MR. PONTERIO: It is exhibits 11, 12, 13, and 14 14. 15 THE COURT: Any objection to 11, 12, 13 and 16 14, counsel? 17 MR. CROSBY: These photographs? No 18 objection. 19 THE COURT: Received in evidence. 20 (Whereupon Plaintiff's Exhibits 11 through 14 21 were entered into evidence) 22 MR. CROSBY: May I proceed, Your Honor? 23 THE COURT: Please do. 24 MR. CROSBY: Thank you. 25 CROSS EXAMINATION LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - CROSS - CROSBY 356 1 BY MR. CROSBY: 2 Q. Doctor, let's just start off with a couple of bullet 3 points. First of all you just referred to an EPA 4 publication, did you not? 5 A. Yes. 6 Q. What's the date of that? 7 A. That was 1986. 8 Q. Hasn't that particular position paper been rejected 9 and superseded by the EPA? 10 A. I'm not sure to what extent it's been updated. 11 Q. Have you seen any updates? 12 A. Not that -- of that specific document about brake 13 mechanics. 14 Q. Would it surprise you if the EPA have since as a 15 result of greater background investigation changed their 16 position? 17 A. Well, it wouldn't surprise me if they updated their 18 report but I don't know to what extent they would have 19 changed. I would be glad to see it. It's possible they 20 have. 21 Q. Even though you say you relied upon this document you 22 have not replied upon the more recent document from the same 23 agency, do I got that? 24 THE COURT: He's indicated he's not aware of 25 one. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM CROSS CROSBY 357 1 THE WITNESS: Excuse me, I think I said I 2 relied on the scientific information more so than a 3 government policy statement. 4 BY MR. CROSBY: 5 Q. So - 6 A. I don't I'm just not aware of a more recent one from 7 the EPA on that. 8 Q. Fair enough. Doctor, does everyone in this room have 9 a certain amount of chrysotile in their lungs? 10 A. Probably if you look hard enough you can probably 11 detect short fibers of chrysotile. 12 Q. When you use numbers like millions, what is the 13 background amount of chrysotile let's say five microns or 14 less in the ordinary citizens in Buffalo, New York? 15 A. Well, I'm not certain if they measured it in Buffalo. 16 The sort of background that's been measured for short fibers 17 is up to a few hundred thousand fibers per gram. 18 Q. Per gram? 19 A. Yes. 20 Q. Okay. And if we expand that to the entire lung as 21 you've described it, how many grams are there in a lung? 22 A. Well, there's probably on the order of one hundred 23 grams on a dry weight basis or maybe a kilogram, a thousand 24 grams, about two and a half pounds before all the water is 25 removed. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM CROSS CROSBY 358 1 Q. So that's per lung? 2 A. That's for both together. 3 Q. So in the ordinary person's lungs today without any 4 industrial contact with chrysotile in the lungs you would 5 expect to have one hundred thousand times, what did you tell 6 us? 7 A. Maybe a hundred. 8 Q. Times one hundred. Which would be what, ten million? 9 A. I think so. Your math is good today. Those are the 10 short fibers. 11 Q. I understand. We'll talk about the length of fibers 12 a little bit later and like the fibers as a result of using 13 the FAST machine. By the way, have you ever seen a FAST 14 machine? 15 A. No, I haven't. 16 Q. Have you ever been shown any literature about the 17 FAST machine, how it works? 18 A. I've seen a description of it. I'm not sure I've 19 seen a picture of it. 20 Q. Okay. And you are aware that the size of the piece 21 of material that Mr. Ginter used on the FAST machine was a 22 half inch by half inch? 23 A. Yes. 24 Q. You are aware it's bonded material? 25 A. Yes. It was mixed as it would be in a brake LYNN M. RICKETTS Supreme Court Reporter ABRAHAM CROSS CROSBY 359 1 material. 2 Q. So it's not raw asbestos? 3 A. That's right. I mean I understood it contained about 4 forty to sixty percent asbestos, so the rest was whatever 5 other materials in it. 6 Q. But they're bonded together, aren't they, with a 7 resin? 8 A. I assume so, but I don't know what degree he was 9 testing different formulations. I think that was what I was 10 told was part of his job was to test different formulations. 11 Q. Okay. So do you have any real knowledge as to what 12 he was doing? 13 A. Other than what we described, no. 14 Q. Other than the hypothetical that's been given you 15 here today? 16 A. I haven't seen the formulations of what was in the 17 bonding and things like that. 18 Q. Did you ever speak to Mr. Ginter before coming to 19 testify about what he was doing? 20 A. No. I only met him in passing today when he was in 21 the courtroom when I got here. 22 Q. Well, I looked at your folder that you brought with 23 you. Is that your entire file? 24 A. Yes. 25 Q. In that file anywhere is there a copy of his prior LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - CROSS - CROSBY 360 1 testimony, his deposition as to his lifetime exposure? 2 A. No. I don't have a copy of the deposition in my file 3 but I did see a copy that was in the law offices of Mr. 4 Ponterio. 5 Q. When was that? 6 A. Just today and yesterday. 7 Q. When did you write your report in this case? 8 A. That was back in September of last year. 9 Q. So you wrote your report without any reference to any 10 of either Mr. Ginter's actual trial or deposition testimony 11 as to his exposures or without speaking to him? 12 A. Yes. I was provided information on his exposures and 13 that was enough for me to even reach a conclusion. 14 Q. What information were you provided about 15 his exposure. 16 A. That he had worked with asbestos from about 1968 to 17 approximately 82, 83. 18 Q. Anything more detail than that? 19 A. Not a great deal more. That he was a laboratory 20 technician and a chemist and he was exposed to asbestos in 21 molding compound insulation, matrix boards, friction 22 material, joint compound and asbestos fibers. So that was 23 the level of detail. I wasn't given numerical estimates. 24 Q. So for example you were never told that in one of his 25 positions on a number of occasions in a facility where he LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - CROSS - CROSBY 361 1 was covered with so much asbestos mixed material that he had 2 to have his clothes blown off before he could walk out? 3 A. I don't think I was told that. 4 Q. And I take it you are aware that he's held a number 5 of positions since 1968, aren't you? 6 A. Yes. 7 Q. Are you aware that he has claimed in this courtroom 8 that he was exposed to asbestos at virtually every position 9 he has held right from 1968 up to the time he retired? 10 A. I wasn't aware of that precise detail, but I knew he 11 had multiple exposures to asbestos. 12 Q. But the volume of the exposures you don't know? 13 A. That's correct. 14 Q. Or when they occurred? 15 A. Not exactly on which days or months. 16 Q. Now, you talked about something called dose response, 17 did you not? 18 A. Yes. 19 Q. And I think you used the example glass of water? 20 A. Well, I was shown that example, yes. 21 Q. And that hypothetically each exposure adds a drop of 22 water to the cup? 23 A. Right. Some might add two drops. Some might one. 24 Q. Some might add an ounce? 25 A. That's correct. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - CROSS - CROSBY 362 1 Q. And that depends upon the environment he's in and the 2 amount of exposure that he inhales? 3 A. Yes. 4 Q. By the way, the body does have a mechanism, a 5 filtering mechanism, doesn't it? 6 A. Well, it has defense mechanisms that keep some 7 asbestos fibers or keep dust from reaching the lungs and to 8 clear out dust that do reach the lungs. 9 Q. And there is a difference in the type of asbestos, 10 isn't there? 11 A. Well, there's different types of asbestos fibers, 12 yes. 13 Q. And those different types have different potencies, 14 don't they? 15 A. It's thought so, yes. 16 Q. In fact you published on it? 17 A. Yes. 18 Q. Didn't you publish an article a couple weeks ago? 19 A. I think it finally came out weeks ago. 20 Q. June of this year? 21 A. Yes. 22 Q. In that article -- let me give a copy to counsel. 23 That was an article that you published along with Dr. Case? 24 A. Right. Dr. Case and Dr. Meeker, Dr. Pooley and Dr. 25 Pinkerton. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - CROSS - CROSBY 363 1 Q. Are they all well-known experts in this field? 2 A. Yes. 3 Q. And you consider them all authoritative? 4 A. Well, I don't know if authoritative means like gospel 5 or something like that. I considered them all experts and 6 we have our agreements on most things and probably among 7 those five people there's some differences of opinion on 8 certain things. 9 Q. Do you personally respect their opinions? 10 A. Yes. 11 Q. And - 12 MR. CROSBY: Could you mark this, please. 13 (Whereupon the reporter marked the 14 Journal as Defendant's 15 Exhibit J for identification.) 16 BY MR. CROSBY: 17 Q. Let me show you an article what I assume you're very 18 familiar with? 19 A. Actually I saw it for a long time. I haven't looked 20 at it since it finally came out. But I did see it and I'm 21 one the co-authors. 22 Q. This paper that you co-authored that came out in 23 publication this month, do you have a preamble at the very 24 beginning? 25 A. You mean the abstract of it, the part in bold? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM CROSS CROSBY 364 1 Q. Yes. 2 A. There is one there. 3 Q. Could you just read to the jury the first sentence? 4 A. Sure. It says although asbestos research has been 5 ongoing for decades, this increased knowledge has not led to 6 consensus in many areas of the field. 7 Q. Next sentence please? 8 A. Two such areas of controversy include the specific 9 definition of asbestos and limitations and understanding 10 exposure response relationships for various asbestos types 11 and exposure levels and disease. 12 Q. Okay. What are you saying there, doctor that within 13 the scientific community? 14 A. Not everybody agrees. But they mostly agree that 15 more research needs -16 Q. Needs to be done? 17 A. -- could be indicated. Not everybody agreed with 18 that on this committee. Some felt that we already know 19 asbestos is a dangerous material. So understanding the 20 exact mechanism isn't as part as preventing exposure. So 21 there was that kind of discussion at that meeting which this 22 was one out of 7 or so different groups of published report. 23 Q. This group internally disagreed as to more research 24 was needed? 25 A. I'm not sure. We didn't have that discussion right LYNN M. RICKETTS Supreme Court Reporter ABRAHAM CROSS CROSBY 365 1 away. But I'm sure it says what's needed. I don't think 2 anybody disagreed within this group. 3 Q. I would like you to go if you could to the next page, 4 Page 4. 5 A. Yes. 6 Q. Would you put that up, please. 7 MR. CROSBY: Your Honor, could the technical 8 assistant come up and figure out why this isn't coming 9 up on the screen. 10 THE COURT: Absolutely. 11 MR. CROSBY: I'm of a different generation. 12 THE COURT: So am I. 13 THE WITNESS: The light is on now on the 14 projector. 15 BY MR. CROSBY: 16 Q. While they're doing that, let me go on to a different 17 subject and we'll come back to your paper in a few minutes. 18 You talked about asbestos in general as being a cause for 19 mesothelioma, correct? 20 A. Yes. 21 Q. But there are different types of asbestos, are there 22 not? 23 A. Yes. I mentioned some of them. 24 Q. Okay. You mentioned chrysotile? 25 A. Yes. LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - CROSS - CROSBY 366 1 Q. You mentioned the amosites? 2 A. Yes. 3 Q. What are the amosites? They're a different family, 4 aren't they? 5 A. Right. They're part of the what's call the amphibole 6 family. 7 Q. And what is meant by amphiboles? 8 A. Well, that's a really good question because the 9 mineralogists have different definitions of it. I think the 10 one that I find understandable is it means variable. 11 There's a whole wide variety of compositions of these 12 minerals. 13 Q. And included in that is amosite in the amphiboles? 14 A. Yes, the two commercial ones that I talked about, 15 amosite and chrysolite. 16 Q. Anything else? 17 A. And the other ones that are written about as 18 contaminates of chrysotile for example, are tremolite and 19 anthophyllite and antrimolite. 20 Q. Tremolite is also the amphibole family? 21 A. Yes. 22 Q. Now, is there a structural physical difference 23 between an amosite fiber and a crocidolite fiber? 24 A. Well, there's a chemical difference in the fibers. 25 Look different in the microscope so I would say yes. But LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - CROSS - CROSBY 367 1 mineralogists would probably define it more in detail. 2 Q. Well, you look at it under microscope. That's part 3 of your job and training as a pathologist? 4 A. Yes. If you look at the electron microscope the way 5 we do, you have to have the chemical information, not just 6 the structure, the shape of it. 7 Q. But you have to know what the basic shape is to begin 8 with, don't you? 9 A. Yes. I mean there can be chrysotile fibers overlap 10 in Size range with crocidolite fibers and they can look 11 straight. So you can't always tell just by looking at the 12 shape. 13 Q. But generally they are not straight? 14 A. If they're longer than they're sometimes show the 15 curvature as the one's found in Mr. Ginter's lungs that I 16 showed you. 17 Q. Longer than what? 18 A. Long enough to show there's no magic number. But the 19 shorter they are the less likely you are to see the 20 curvature. 21 Q. And the curvature is kind of like a snake-like 22 curvature? 23 A. If it goes twice. It may be C shaped or it might be 24 S shaped, but in other words if you take that as curved 25 shape and break it up in little pieces it may not look so LYNN M. RICKETTS Supreme Court Reporter ABRAHAM CROSS CROSBY 368 1 curved. 2 Q. But if it's not broken, up it doesn't curve? 3 A. It may. It doesn't have to. Depends on how it lies 4 on the filter. 5 Q. And the amphiboles tend to be straight and longer, 6 don't they? 7 A. No. 8 Q. And is there a half life between amphiboles and 9 chrysotile? 10 A. Yes. Usually chrysotile is cleared from the lungs 11 more rapidly than the amphibole fibers. 12 Q. What do you mean by that? 13 A. If you -- you can't test this in humans very well, 14 but in animals that are exposed to a purer sample of one 15 material like chrysotile and you measure how long does it 16 take for the chrysotile to be removed from the lung, what's 17 called a half life which is the time it takes for the 18 concentration to go from whatever it is to half that 19 concentration. So in chrysotile it might be a month or two 20 or three. 21 Q. How about amosite? 22 A. With some of the amphiboles like amosite or 23 crocidolite or tremolite, for example, it can be months or 24 years. 25 Q. Could be as long as twenty years? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM CROSS CROSBY 369 1 A. It can be. And the same is true for the longer 2 chrysotile fibers. They can stay around longer too. So 3 it's mostly the short chrysotile fibers that account for the 4 very shorter half life. 5 Q. And give me a definition that the ordinary person can 6 understand when you talk about short. You used the word 7 microns before. 8 A. A micron is a thousandth of a millimeter. So a 9 micron is about one fiftieth the diameter of a hair. A hair 10 is somewhere around fifty microns. So a micron is pretty 11 small. These fibers are often five microns or less is 12 sometimes used to -- there's no, you know, mandatory 13 definition but that's what's commonly used is five, kind of 14 a cut off between short and longer. 15 Q. So when you talk about short, can we agree we're 16 talking about anything five microns or less, is that a fair 17 statement? 18 A. Well, we can define however we want for discussion. 19 That's fine. 20 Q. Are you comfortable with that? 21 A. I am. I mentioned before on the background levels 22 have been measured and they've used lengths of five or ten. 23 Q. In fact in your paper -- perhaps not. Yeah, in your 24 paper you make reference to five microns, don't you? 25 A. In my paper? This paper? LYNN M. RICKETTS Supreme Court Reporter ABRAHAM - CROSS - CROSBY 370 1 Q. Yes. 2 A. That we were talking about? Yes, I think it's 3 mentioned probably more than once in here. 4 MR. CROSBY: This is probably a good point as 5 any because I would like to get into his paper. 6 THE COURT: We got to be out of here in about 7 three and a half minutes, we have a problem with the 8 projector, hopefully that will get cleared. As I 9 understand, doctor, you will be back on Wednesday. 10 THE WITNESS: That's what I just learned. 11 THE COURT: Wednesday morning. 12 MR. PONTERIO: 9:30. 13 THE COURT: 9:30 Wednesday morning we'll 14 continue with doctor's testimony. Tomorrow Tuesday 15 again as I mentioned earlier we're going to start at 16 1:30 in the afternoon. Enjoy the evening. Don't talk 17 about the case and we'll see you when you arrive 18 tomorrow. 19 20 (Proceedings concluded) 21 22 23 24 25 LYNN M. RICKETTS Supreme Court Reporter