Document ZdvvKm6ejdD50b6Jvx0GVw9Y

DEPOSITION OF DAVID PYATT, JUNE 24, 2009 Page 1 1 2 IN THE UNITED STATES DISTRICT COURT FOR THE 3 EASTERN DISTRICT OF LOUISIANA _________________________________________________________ 4 JO ANN BISHOP, ET AL, 5 Plaintiffs, 6 vs. Case No.:07-2832 7 SHELL OIL CO., ET AL, 8 Defendants. 9 _____________________________/ 10 11 DEPOSITION of DAVID PYATT, held on June 24, 12 2009, at 6901 Tower Road, Denver, Colorado, commencing 13 at 9:18 a.m., before Janet Lee Priestley, a Shorthand 14 Reporter and Notary Public in and for the State of 15 Colorado. 16 17 18 19 20 21 22 23 24 25 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 APPEARANCES: 3 4 WILLIAMS LAW OFFICE, LLC 5 By L. Eric Williams, Jr., Esq. 6 3021 - 35th Street, Suite B 7 Metairie, Louisiana 70001 8 and 9 RICHARD J. FERNANDEZ, LLC 10 By Richard J. Fernandez, Esq. 11 3000 West Esplanade Avenue, Suite 200 12 Metairie, Louisiana 70002 13 Appearing telephonically 14 on behalf of Plaintiffs. 15 16 KEAN MILLER HAWTHORNE D'ARMOND 17 McCOWAN & JARMAN, LLP 18 By Glenn M. Farnet, Esq. 19 One American Place, 18th Floor 20 P.O. Box 3513 21 Baton Rouge, Louisiana 70821 22 Appearing on behalf of Defendants 23 Shell Oil Company, Shell Chemical, 24 L.P., Marathon Oil Company, and 25 El Paso Energy Company, E.F.T. Page 2 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 APPEARANCES: (Continued) 3 HAYNES AND BOONE, LLP 4 By Stan Perry, Esq. 5 One Houston Center 6 1221 McKinney Street, Suite 2100 7 Houston, Texas 77010-2007 8 Appearing on behalf of 9 the Shell defendants. 10 11 COATS ROSE 12 By James Riley, Esq. 13 3 Greenway Plaza, Suite 2000 14 Houston, Texas 77046 15 Appearing telephonically on behalf of 16 Radiator Specialty Company. 17 18 SHER GARNER CAHILL RICHTER 19 KLEIN & HILBERT, L.L.C. 20 By Thomas J. Madigan, II, Esq. 21 909 Poydras, Suite 2800 22 New Orleans, Louisiana 70112 23 Appearing telephonically on behalf of 24 Defendant Murphy Oil USA, Inc. 25 ALSO PRESENT: Roger Stuart, CLVS Page 3 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 Page 4 1 2 INDEX TO EXHIBITS 3 4 DESCRIPTION MARKED 5 6 Exhibit-1 18 7 Notice of video-telephone deposition 8 9 Exhibit-2 18 10 5-5-09 report by Dr. Pyatt 11 12 Exhibit-3 19 13 Curriculum vitae of Dr. Pyatt 14 15 Exhibit-4 19 16 5-2-09 invoice from Summit Toxicology 17 18 Exhibit-5 19 19 Communication between Dr. Pyatt and counsel 20 21 Exhibit-6 19 22 Transcript of David Pyatt 23 24 25 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 Page 5 1 2 INDEX TO EXHIBITS (CONT.'D) 3 4 DESCRIPTION MARKED 5 6 Exhibit-7 20 7 Reports of other cases involving multiple 8 myeloma 9 10 Exhibit-8 21 11 List of cases of multiple myeloma 12 13 Exhibit-9 21 14 CD prepared by Dr. Pyatt 15 16 Exhibit-10 35 17 List of Dr. Pyatt's case work in last five 18 years 19 20 Exhibit-11 100 21 6-7-09 declaration of David Pyatt 84 22 23 24 25 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 DEPOSITION OF DAVID PYATT 3 JUNE 24, 2009 4 THE VIDEOGRAPHER: The videotape 5 recording has commenced and we are now on 6 the record. Today is June 24th, 2009. The 7 time is approximately 9:18 a.m. My name is 8 Roger Stuart, Jr., and I am the certified 9 legal video specialist for Accurate Court 10 Reporting, Incorporated, whose business address 11 is 24650 Sandhill Boulevard, Suite 401, in 12 Punta Gorda, Florida, 33983. This is the 13 deposition of David Pyatt, Ph.D., in the 14 matter of Jo Ann Bishop, plaintiff, vs. 15 Shell Oil Company, et al., defendants, Case 16 No. 07-2832 pending in the U.S. District 17 Court, Eastern District of Louisiana. This 18 deposition is being taken at Courtyard 19 Marriott Denver Airport, address 6901 Tower 20 Road in Denver, Colorado, zip code 80249, 21 taken on behalf of the plaintiff. The court 22 reporter is Janet Priestley. Will counsel 23 please identify yourselves for the record, 24 stating your name, your addresses, and -25 MR. WILLIAMS: Eric Williams and Page 6 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Richard Fernandez for the plaintiffs. 3 MR. FARNET: Glenn Farnet for 4 Defendants Shell Oil, Shell Chemical, Marathon 5 Oil, and El Paso. 6 MR. PERRY: Stan Perry for the Shell 7 defendants. 8 MR. RILEY: Jim Riley, Radiator 9 Special Company. 10 MR. MADIGAN: T.J. Madigan for 11 Murphy Oil USA, Inc. 12 THE VIDEOGRAPHER: Thank you. The 13 notary public and court reporter will 14 stenographically record the testimony today. 15 At this time the reporter will please swear 16 in our witness. 17 Thereupon, 18 DAVID PYATT, 19 being first duly sworn in the above cause, 20 was examined and testified as follows: 21 THE VIDEOGRAPHER: Thank you. 22 Counsel, you may now proceed. 23 EXAMINATION 24 BY-MR.WILLIAMS: 25 Q. Yes. Would you please state your Page 7 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 name and address for the record, sir. 3 A. Sure. David Pyatt, 1944 Cedaridge 4 Circle, Superior, Colorado 80027. 5 Q. What's your date of birth, sir? 6 A. June 18, 1958. 7 Q. And Dr. Pyatt, what degrees have you 8 earned so far? 9 A. I have an undergraduate bachelor of 10 science in biology/chemistry. I had a 11 science education degree because I taught 12 school for a little while. And then I have 13 a Ph.D. in toxicology. 14 Q. And you said a science education 15 degree. Is that a -16 A. No, science -17 Q. -- undergraduate or a master's? 18 A. I'm sorry; a science education. 19 It's a B.S. degree, but it involves the 20 educational certification so you can teach. 21 Q. Okay. What year did you receive 22 your Ph.D. in toxicology? 23 A. '95. 24 Q. How does one become a toxicologist, 25 Doctor? Page 8 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. I think to be a toxicologist, you 3 get an advanced degree in the subject. I 4 think -5 Q. Are there also professional 6 certifications for toxicology? 7 A. There -- yes. Yes. There are some 8 for -- I think there's a medical sort of 9 toxicology, but I'm not quite sure how that 10 one works. And then there's board 11 certification with the American Board of 12 Toxicology. 13 Q. And are you certified with the 14 American Board of Toxicology? 15 A. No. 16 Q. Okay. So is it your testimony that 17 either certification through the American 18 Board of Toxicology or a Ph.D. in toxicology 19 would make one a toxicologist? 20 A. The American Board of Toxicology set 21 up their certification program where you take 22 the tests with so many years of experience. 23 So with the caveat that in order to take the 24 exam you have to have the appropriate 25 experience and publication record, sure, I Page 9 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 think that's fine. 3 Q. Okay. Have you ever sat for the 4 toxicology exam? 5 A. No. 6 Q. Have you ever applied for it? 7 A. I applied once in 2000 or maybe 1999 8 and was accepted, but then -- I don't 9 exactly remember, but something came up and I 10 was unable to take the exam. 11 Q. Do you have an opinion whether or 12 not that is a rigorous exam? 13 A. I've heard that it's pretty hard, 14 yes. I think most people that actually have 15 a Ph.D. in the field and have actively been 16 involved in the teaching and the utilization 17 of this science have an okay time taking it. 18 But you don't have to have a Ph.D. in 19 toxicology to take the exam, based on your 20 number of years that they agree you actually 21 have been working in the field. So I think 22 some people who sit for the test have a very 23 hard time with it because they don't really 24 have the didactic training that they would 25 need to be successful at it. So its failure Page 10 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 rate is quite high. That's my understanding. 3 Q. Would you consider someone to be a 4 toxicologist if they didn't have a Ph.D. in 5 toxicology or were not board certified in 6 toxicology? 7 A. No. 8 Q. Thank you. Doctor, where do you 9 work? 10 A. I work for Summit Toxicology, my 11 consulting company, and then I also work for 12 the university. 13 Q. Okay. And what is your current 14 title at Summit? 15 A. I guess my official title would be 16 principal and cofounder. There's only three 17 of us so I probably could give myself any 18 title that I'd like. No, I guess I couldn't 19 be president because one of my partners 20 claimed president when we first started. 21 Q. And what do you do at the 22 university, Doctor? 23 A. I teach courses in toxicology. I 24 teach a class in environmental epidemiology. 25 I teach a class in risk assessment. I sit Page 11 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 on committees, curriculum development 3 committees. I sit on graduate student 4 advisory boards; you know, basic academic 5 activities for someone who no longer has an 6 active research lab. 7 Q. Doctor, have you ever published a 8 study relating to benzene and multiple 9 myeloma? 10 A. Well, I published a couple papers 11 relating to the metabolites of benzene and 12 effects on B lymphocytes, which I think has 13 some bearing on this issue. But if you're 14 asking about an epidemiology study, the 15 answer is no. 16 Q. Okay. Have you done any research on 17 benzene and multiple myeloma independent of 18 litigation? 19 A. Yes. 20 Q. Tell us what you've done. 21 A. Well, the context -- at least part 22 of the context in thinking about what 23 metabolites of benzene might do with B 24 lymphocytes, I mean, that was part of the 25 thought, that and non-Hodgkin's lymphoma. Page 12 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 And then I've done other work that wasn't -3 that was on benzene involving risk 4 assessments and things like that where this 5 was part of the evaluation, understanding -6 Q. Have you specifically done a study, 7 any research, on benzene and multiple 8 myeloma? 9 A. I think I've answered that. I'm not 10 -- maybe I'm not understandings your 11 question. 12 Q. Okay. What did you think -- I'm 13 sorry. What was your answer? 14 A. Well, that within the context of 15 thinking about the metabolites of benzene and 16 B lymphocytes as well as the Giles specific 17 risk assessment on benzene and some of the 18 other risk assessment work that I've done on 19 benzene, multiple myeloma was part of that 20 process, thinking about this disease. 21 Q. Okay. Doctor have you worked for 22 any federal agencies relating to research on 23 benzene and multiple myeloma? 24 A. That's pretty specific. I guess the 25 answer to that would be no. Page 13 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. What percentage of your work involves 3 litigation? 4 A. With pretty wide confidence intervals 5 I'd say the answer is 30, maybe 40 percent. 6 It varies depending on the time frame that 7 you cut off. Sometimes I'm busy doing this. 8 Other times I don't do very much of it at 9 all. But on average, I think that's fair, 10 30 percent. 11 Q. And what percentage of the 30 12 percent deals with chemicals and causation? 13 A. I would think all of it. 14 Q. Okay. Do you know how many cases 15 that you have served on as an expert dealing 16 with chemicals? 17 A. I don't know, no. I've been doing 18 this for five years. 19 Q. Okay. So you started doing this 20 around 2004? 21 A. Excuse me. Sorry. That sounds 22 right, yes. 23 Q. And let's back up for a second. 24 Doctor, did you receive a notice for this 25 deposition? Page 14 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. I did. 3 Q. Okay. Could you please pull out the 4 notice and tell me what you brought with you 5 today in response to our notice. 6 A. I'll be happy to. Okay. Do you 7 want me to -- how do you want to do this? 8 Do you want me to just tell you what I 9 brought, or would you like for me to go down 10 the list? 11 Q. Why don't you look at the list and 12 tell me what you brought in response to each 13 item. 14 A. Okay. "Documents that were produced 15 to you, reviewed, or relied upon in forming 16 your opinions," I brought that. A copy of 17 my expert report, I brought that. The 18 exhibits to my expert report, I'm assuming 19 that's the citations which I burned onto a 20 CD and sent to Stacy Yates so I'm assuming 21 that's out there and you have a copy. "A 22 copy of the scientific literature that you 23 reviewed in preparing your report," yes, I 24 have that. A list of all the cases, I have 25 that. I have the one invoice that I've Page 15 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 submitted in this matter, so a statement 3 itemizing the time. Documents -- No. 6, 4 "documents including all studies or scientific 5 documents that do not support your opinion," 6 of course I have that. "Your file in this 7 case," I think that's what we're talking 8 about, but -- so I'm not exactly sure what 9 that is, but I think I have that. 10 Communications between me and the attorneys, 11 I have that. My college and graduate school 12 transcripts, that was a new one for me, but 13 I do have the graduate school transcripts. 14 I don't have my undergraduate transcripts. I 15 guess they exist somewhere, but not in my 16 possession. I did not bring documentation 17 sufficient to establish income. I was 18 informed that that would not be required. 19 The same with 11, "documentation evidencing 20 the total amount of income earned from 21 litigation regarding Shell." Expert reports 22 that I've provided in other multiple myeloma 23 cases, I did bring that if you'd like them. 24 And a list of cases that I've served as an 25 expert witness involving multiple myeloma, Page 16 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 there haven't been that many. I think I 3 might have them written down; if not, I can 4 give you the list, the names. 5 Q. Okay. And, Doctor, I had trouble 6 hearing you. You said there was a CD you 7 produced to Stacy Yates? 8 A. Right. Stacy -9 Q. What are you talking about? 10 A. Stacy -- Ms. Yates asked me if I 11 would take all of the citations from my 12 expert report and put those onto a disk, 13 which I did, and then Fed Ex'd those to her. 14 I was assuming that was going to be 15 distributed around. I also have a disk here 16 today because I brought several binders, 17 which we can go through, you know, whenever 18 it's convenient for you, but so the court 19 reporter doesn't have to take my binders and 20 copy all those and I don't have to let that 21 happen because they never come back the way 22 they left. I put all those studies onto a 23 CD. So I have a CD here that will come to 24 you, I guess, that has all of the scientific 25 studies that I've relied upon on this CD as Page 17 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 well as all the ones that are in these 3 binders that are in the room now. 4 Q. Fair enough, Doctor. Okay. At this 5 point I'd like to mark the notice as 6 Exhibit-1. 7 A. So what does that mean? I give it 8 to the court reporter? 9 (Whereupon, Exhibit-1 was marked.) 10 BY-MR.WILLIAMS: 11 Q. And the report as Exhibit-2. 12 A. What report? My report? 13 Q. Yes, sir. 14 A. Okay. I brought a copy. 15 (Whereupon, Exhibit-2 was marked.) 16 MR. FARNET: Is that an extra copy? 17 THE DEPONENT: This is the one copy 18 I brought today. I mean, if we're going to 19 talk about it, I'll have to get it back. 20 BY-MR.WILLIAMS: 21 Q. I don't think I'll have that many 22 questions from your report. But if you need 23 to, she can hand it back to you. 24 A. Okay. That's fine. Mr. Williams, 25 do you want -- Page 18 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. I'm sorry, Doctor? The CV is 3 Exhibit-3. 4 A. I was jumping ahead of the court 5 reporter. Do you want the supplemental 6 declaration, which kind of is like the 7 report, or have we not gotten there yet? 8 Q. Hold that off for right now. 9 A. Okay. The CV is 3. 10 (Whereupon, Exhibit-3 was marked.) 11 MR. WILLIAMS: The bill in this 12 case, Exhibit-4. 13 (Whereupon, Exhibit-4 was marked.) 14 MR. WILLIAMS: The communications 15 with counsel in this case will be Exhibit-5. 16 (Whereupon, Exhibit-5 was marked.) 17 MR. WILLIAMS: The transcripts, 18 Exhibit-6. 19 (Whereupon, Exhibit-6 was marked.) 20 BY-MR.WILLIAMS: 21 Q. And Doctor, how many reports did you 22 bring from other cases of multiple myeloma? 23 A. Three. 24 Q. Okay. The reports will be 25 Exhibit-7. Page 19 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. All of them collectively? 3 Q. Yes, sir. 4 A. Okay. 5 (Whereupon, Exhibit-7 was marked.) 6 BY-MR.WILLIAMS: 7 Q. The list of cases of multiple 8 myeloma will be Exhibit-8. 9 A. I'm going to have to make that. 10 MR. WILLIAMS: Okay. Ms. Court 11 Reporter, maybe if we take a break, he can 12 give that to you before we finish. 13 THE DEPONENT: So you don't want me 14 to do it now? That's fine. 15 BY-MR.WILLIAMS: 16 Q. You can do it now. That's fine. 17 A. It won't take long. 18 Q. Okay. 19 A. Because I think there's these three. 20 Let's see. And I don't need to put this 21 one on there, right? You know that one? 22 Q. Right. 23 A. (Deponent complied.) 24 MR. WILLIAMS: And Ms. Court 25 Reporter, you can mark the disk as Exhibit-9. Page 20 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 THE DEPONENT: Okay. Here's the 3 list. Do you want me to read it or just 4 hand it over? 5 BY-MR.WILLIAMS: 6 Q. Well, you can hand it to her, and 7 I'll ask you a question relating to that so 8 we don't have to come back to it. 9 A. Okay. I'm sorry. Do you want the 10 -- I'm sorry, Mr. Williams. I got -- so 11 does she get the disk? 12 Q. Yes. The disk is No. 9. When 13 she's finished stickering it, let me know and 14 I'll continue questioning. 15 A. Okay. So the list is 8. 16 (Whereupon, Exhibit-8 and Exhibit-9 17 marked.) 18 BY-MR.WILLIAMS: 19 Q. Okay. Doctor, how many cases have 20 you served in that involved multiple myeloma? 21 A. Four, not counting this one. 22 Q. Not counting this one? 23 A. Yeah; five counting this one. 24 Q. Okay. And can you tell me the 25 names of those cases? Page 21 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. One is Ben Brown. 3 Q. Okay. 4 A. One is Sundquist; an old one, Trojan 5 vs. People's Gas. And those three all have 6 reports. And then the last one is Behymer, 7 B-e-h-y-m-e-r, vs. BP. And that one did not 8 have a report. 9 Q. Doctor, did all four of those cases 10 involve allegations of benzene exposure? 11 A. In the mix. I mean, some had 12 diesel. Some had gasoline. Some had coal 13 tar and polyaromatic hydrocarbons. But yes, 14 to one extent or another, benzene was thrown 15 in the mix. 16 Q. And did you find that benzene caused 17 multiple myeloma in any of those four cases? 18 A. Did I find that benzene causes 19 multiple myeloma? 20 Q. No, sir. Was it your opinion that 21 benzene was the cause of the plaintiff's 22 multiple myeloma in any of those four cases? 23 A. No, sir. 24 Q. Okay. Was Shell a defendant in any 25 of those cases? Page 22 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. The Ben Brown case, I know that 3 Shell is a defendant. The other ones, I 4 can't honestly say. They might have been 5 somewhere involved. There was always lots of 6 defendants, and they could have been 7 somewhere in the mix, and I honestly don't 8 recall. But I know Ben Brown they are for 9 sure. 10 Q. And what about Radiator Specialty 11 Company who makes Liquid Wrench? Were they 12 a defendant in any of those four cases? 13 A. Not to my knowledge, no. 14 Q. What about Murphy Oil? 15 A. I don't ever call seeing Murphy Oil 16 in anything other than this one. 17 Q. Marathon Oil? 18 A. I've seen Marathon around but not 19 kind of front and center. They've just sort 20 of always been kind of listed in the list of 21 defendants. I'm sorry. That -- as far as 22 the multiple myeloma goes, I don't 23 specifically recall having ever seen them in 24 any of these four cases other than the one 25 that we're in now, Bishop. Page 23 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. What about Tenneco? 3 A. I never even heard of those guys 4 until this case. 5 Q. Okay. Fair enough. Doctor, in how 6 many cases have you served as an expert for 7 the defendants? 8 A. At this point I have never worked 9 for the plaintiffs so all of my litigation 10 would have been on behalf of defendants. 11 Q. And approximately how many cases have 12 you worked since you started five years ago? 13 A. It would be a guess; 30. I don't 14 know. 15 Q. Okay. Do you know how many involved 16 blood malignancies? 17 A. The vast majority of them. I mean, 18 there were -- I seem to recall a couple of 19 kind of exceptions to that, but almost all 20 of the work that I've done from a litigation 21 point of view has involved blood disorders. 22 Q. And did you find in any of those 23 cases that the chemical at issue caused the 24 blood malignancy? 25 A. Well, I've been consulted on several Page 24 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 cases where it was my opinion that I could 3 not -- based on the evidence presented, that 4 I could not rule out that benzene had 5 something to do with that person's disease. 6 And then -7 Q. What type of diseases are you 8 talking about, Doctor? 9 A. Those were all AML cases. 10 Q. But of the 30 cases that you served 11 as an expert we talked about, how many of 12 them did you find that the chemical caused 13 the plaintiff's disease? 14 A. Well, let's put quotations around 30 15 because that's a guess. It may be more. 16 But the ones that I've been retained in, 17 there weren't any. So out of those, the 18 answer would be none. 19 Q. When you say there "may be more," do 20 you think you may have served on more than 21 50? 22 A. I doubt it. I doubt it. I think 23 it probably would be 30 at the low end, 50 24 at the high end. But I don't -- I don't 25 know. I haven't counted them in the five or Page 25 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 six years I've been doing this. 3 Q. Okay. Doctor, can benzene cause AML 4 leukemia? 5 A. Under appropriate exposure conditions. 6 Q. Okay. And that's my question. 7 Under the worst case scenario, can benzene 8 cause myelodysplastic syndrome? 9 A. Under the worst case high dose, 10 chronic exposure to benzene is associated -11 potentially caused some forms of 12 myelodysplasia. Myelodysplastic syndrome is 13 not a single thing, and I believe the 14 evidence is stronger for some forms of 15 myelodysplasia than others so you've got to 16 be a little more specific with your answer 17 -- with your question. But in general, I 18 would say under the appropriate exposure 19 conditions I would put myelodysplasia in that 20 positive category. 21 Q. What about ALL leukemia? Can 22 benzene cause ALL leukemia under the worst 23 case scenario? 24 A. There's no evidence to support that, 25 no. Page 26 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. What about CLL leukemia? 3 A. No. 4 Q. Non-Hodgkin's lymphoma? 5 A. No. 6 Q. Myelofibrosis? 7 A. No. 8 Q. CML leukemia? 9 A. No. 10 Q. Are there any other blood disorders 11 that you can think of that benzene can 12 cause? 13 A. Yes. 14 Q. Please tell me. 15 A. I think the historic literature is 16 pretty clear that really high dose exposure 17 to benzene can cause aplastic anemia. And I 18 think the literature, though it's still 19 evolving, is pretty clear that chronic 20 exposure to benzene causes various cytopenias, 21 including pancytopenia, which may or may not 22 be a precursor to aplastic anemia. 23 Q. Okay. Is benzene classified as a 24 known human carcinogen? 25 A. Yes. Page 27 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. Do epidemiological studies exist that 3 indicate benzene is a cause of multiple 4 myeloma? 5 A. Are you asking me are there specific 6 studies? I don't -7 Q. Yeah. Are there specifically 8 significant studies for benzene and myeloma? 9 MR. FARNET: Eric, I don't know -10 could you restate that question? The speaker 11 kind of flicked on me, and I don't know that 12 I heard it clearly. Could you restate that, 13 please. 14 BY-MR.WILLIAMS: 15 Q. Are there statistically significant 16 studies for benzene and myeloma? 17 A. Statistically significant studies 18 where they have done an adequate 19 characterization of the exposures and 20 quantified benzene, the only one that I can 21 think of, sitting here, is the original 22 Rinsky study in 1987 of the Pliofilm workers. 23 But then with all of the subsequent 24 follow-ups, Mary Paxton in '94 and then 25 Rinsky himself in 2002, that finding weakened Page 28 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 to nonsignificant levels. In looking at the 3 exposure histories of the four original 4 cases, they don't seem very plausible. So I 5 would say the answer to that is -- well, the 6 answer to your question technically is that 7 one that I'm aware of, but even that one I 8 have trouble with. 9 Q. Okay. Doctor, if I understand you 10 correctly, is it your testimony that if the 11 exposure assessment is not perfect, then you 12 don't think that study's results are 13 reputable; is that correct? 14 MR. PERRY: Object to form. 15 A. Yeah. That's not even close, 16 really, to what I said. 17 Q. Okay. What did you say about the 18 exposure assessment in other studies? 19 A. Well, in other studies or in the 20 Rinsky study? 21 Q. No. I believe you said in other 22 studies the exposure assessment wasn't proper 23 so therefore -24 A. No, no, no, sir. What I said was 25 that the studies where they have adequately Page 29 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 characterized the benzene exposure quantified 3 what that exposure was and then conducted an 4 analysis of the multiple myeloma rates in 5 those exposed people. There are a lot of 6 studies where it's a refinery study. 7 Ostensibly there is some benzene there, but 8 they haven't been -- those exposures have not 9 been quantified. 10 Q. So if I understand you correctly, if 11 the exposure to benzene has not been 12 quantified, then you would not rely on that 13 study? 14 A. No, sir. That's not what I said. 15 I've relied on every study that I could find 16 that was even peripherally related to this 17 issue. 18 Q. Okay, Doctor. We'll move on. I'll 19 get back to that. Is benzene associated 20 with multiple myeloma? 21 A. Not in my opinion. 22 Q. Okay. Have you ever opined that a 23 chemical caused an individual to contract a 24 blood malignancy? 25 A. Well, I think I answered that Page 30 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 question. I mean, that was my opinion in 3 several cases, that it was at least probable 4 or possible, and I wouldn't be able to rule 5 that out. But at that point I was not 6 retained in those cases so it never reached 7 the point where I was putting something down 8 on paper. But yes, it has certainly been my 9 opinion that benzene has caused certain blood 10 disorders. 11 Q. How many cases have you worked on as 12 an expert for Shell that involved blood 13 malignancies and benzene exposure? 14 A. The only -- as I discussed earlier, 15 they may be in the mix somewhere that I'm 16 not -- well, I might have been familiar with 17 it at one point when I worked on the case, 18 but I can't recall whether they were in 19 there now. The only two that I know of are 20 this one and the Ben Brown. 21 Q. Okay. What's your hourly rate, 22 Doctor? 23 A. It's 300 an hour. 24 Q. How many hours have you put in 25 through completion of your report? Page 31 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. Can I go to my invoice? 3 Q. Absolutely. 4 A. So when I submitted the invoice, 5 which was after the report, that was 24, 25 6 hours. 7 Q. Okay. And how many hours have you 8 put in this case up until your deposition 9 today? 10 A. Probably that again, maybe more. I 11 mean, I spent some time -12 Q. I didn't hear how many hours you 13 said. 14 A. Probably 25, perhaps more, as many 15 as 40. I mean, I put some time into 16 responding to the motion to exclude my 17 testimony, and then I always spend quite a 18 bit of time prepping for deposition. So 19 this weekend and some last week and this 20 week, I mean, this was my primary focus. 21 Q. Okay. Speaking of that, Doctor, 22 have you ever been excluded as an expert 23 witness? 24 A. No, sir. 25 Q. Have you ever been limited by a Page 32 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Court in your testimony? 3 A. No. 4 Q. Has anyone ever filed a Daubert 5 challenge against you in litigation? 6 A. Isn't that what you did? 7 Q. Well, besides me. 8 A. Oh. 9 Q. I'm sorry. I didn't hear you, 10 Doctor. 11 A. I'm pondering the question. 12 Q. Okay. Take your time. 13 A. I think they have. I think there's 14 been one or two, maybe more. 15 Q. Okay. Do you remember the names of 16 those cases? 17 A. One was Baker. And Chevron, I 18 think, is the primary defendant, but I'm not 19 positive because it's been a while. And 20 they filed a motion, but I never responded 21 to it. The judge dismissed it out of hand. 22 And then there was another one. Boy, it was 23 a long time ago, and I don't -- I don't 24 honestly remember the name. So there's two 25 plus the one you did, so there's three that Page 33 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 I'm aware of. There might have been others. 3 Q. Okay. Baker, what state was that? 4 A. California. Well, my client was in 5 California, but the actual case was in 6 Cincinnati. 7 Q. Do you know if it was federal court 8 or state court? 9 A. I don't know. It was a really big 10 courtroom. 11 Q. Do you remember which year it was? 12 A. Last year so -13 Q. Okay. 14 A. -- '08, early '08. 15 Q. And I assume that the Baker case 16 would be listed on your case experience that 17 we attached? 18 A. Yes. Yeah. 19 Q. And did the court reporter -20 A. We haven't -21 (Whereupon, a Discussion was held off 22 the record.) 23 MR. WILLIAMS: I'm sorry. Did we 24 attach a list of his entire case work in the 25 last five years? Page 34 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 THE REPORTER: No. 3 MR. WILLIAMS: Okay. Let's attach 4 that as Exhibit-10. 5 (Whereupon, Exhibit-10 was marked.) 6 BY-MR.WILLIAMS: 7 Q. Okay. Doctor, how are cancer-causing 8 chemicals identified by IARC? 9 A. I think IARC does a weight of the 10 evidence evaluation, and they look at all of 11 the scientific data that they can find. I 12 know for the IARC it has to be published. 13 So they look at all of the peer reviewed, 14 published data on a given chemical, and then 15 they meet and discuss the relative weight of 16 all that evidence and then decide upon their 17 classification. 18 Q. And what type of studies does IARC 19 use? 20 A. I would assume they use all of them. 21 I've never been part of an IARC panel. But 22 my understanding is that they would certainly 23 put the most weight on quantitative 24 epidemiology, and also they would look at as 25 far as just can it cause human cancer, Page 35 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 probable, possible, whatever their 3 classifications are. They would also rely on 4 the long-term animal bioassays. I think 5 mechanistic studies and plausibility studies 6 are probably in the mix somewhere but 7 certainly do not -- and genotoxicity studies, 8 they certainly will not carry the day, but 9 they're probably on the table. 10 Q. Doctor, did you have the opportunity 11 to look at the 1977 Shell study that had 12 eight cases of multiple myeloma? 13 A. I did because you attached it to the 14 motion to exclude my testimony. 15 Q. Okay. Did you have an opportunity 16 to look at Dr. Infante's calculations for 17 multiple myeloma based on that study? 18 A. No. 19 Q. Did you read his report? 20 A. I read his report. 21 Q. Dr. Infante calculated a 2.67, I 22 think it was, PCMR for the eight cases. Do 23 you disagree with his findings there? 24 A. Well, I can't disagree or agree 25 because I don't know what he did to come up Page 36 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 with those numbers. 3 Q. Do you recall seeing that information 4 in his report? 5 A. I have his report. I can look at 6 it if you'd like, but -7 Q. Yeah, let's do. 8 A. Even if it's in his report, you 9 know, until those calculations -- they have 10 to be transparent, and they have to go 11 through the peer review process before I 12 would consider that valid. 13 Q. We're not talking about peer review. 14 I'm just asking, do you disagree with the 15 calculations that he performed? 16 A. What I'm telling you is I can't 17 agree or disagree because I don't know 18 anything about how he did it. 19 Q. Is that outside of your field of 20 expertise? 21 A. Well, I can do it, but yes, that is 22 outside of my field. 23 Q. Fair enough. Did you review any 24 Shell documents that showed employees with 25 abnormal blood results that developed multiple Page 37 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 myeloma while they were in the benzene 3 monitoring program? 4 A. No. 5 Q. Would that have been a factor one 6 way or the other in whether or not benzene 7 can cause multiple myeloma to you? 8 A. Well, I would factor it into my 9 overall determination, but I would have to 10 see that information and evaluate what you're 11 talking about before I could say whether I 12 would consider that a positive or a negative 13 study. 14 Q. Okay. And again, I'm not talking 15 about study. I'm talking about internal 16 documents that indicated Shell employees that 17 were in the benzene blood monitoring program 18 with abnormal blood results developed multiple 19 myeloma. 20 MR. PERRY: Objection to form. 21 Q. Does that matter to you one way or 22 the other whether or not benzene can cause 23 multiple myeloma? 24 A. Well, the way you worded it, no, 25 because in order to understand whether there Page 38 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 is a real effect going on, you've got to 3 have comparison populations and do statistic 4 analysis. People get multiple myeloma all 5 the time. They're exposed to all kinds of 6 things, and they're exposed to nothing. 7 They're in all works of -- walks of life. 8 So simply saying, Look, here's a bunch of 9 plumbers, and one them got multiple myeloma 10 or even two of them got multiple myeloma; 11 therefore, being a plumber gives you multiple 12 myeloma, that's inappropriate. That's just 13 not how epidemiology works. So without doing 14 the appropriate epidemiological analysis of 15 the data that you're talking about, which I 16 haven't seen, I don't know whether that says 17 anything about benzene or not. 18 Q. All right. What about toxicology, 19 Doctor? If we give rats benzene and they 20 develop diseases, is that how we determine 21 whether or not diseases are capable of 22 causing certain cancers? 23 MR. FARNET: Object to form. 24 A. All right. I'll try to answer that, 25 Mr. Williams. That's kind of a fuzzy Page 39 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 question. But I think in the overall weight 3 of evidence that something is carcinogenic, 4 then, sure, animal data, of, course would be 5 considered. Whether or not something is 6 going to be classified as a human carcinogen, 7 animal data will not get you there. And 8 even then, in order to discuss a specific 9 form of cancer like we are here, that's a 10 whole different evaluation where you need 11 quantitative epi studies that are looking at 12 the specific disease of interest. Benzene 13 causes zymbal gland tumors in mice and rats. 14 We don't even have a zymbal gland. So 15 clearly the animal data does not tell us 16 that much about what benzene can do in 17 humans. 18 Q. Well, let me ask you this, Doctor. 19 If we can create a cancer in rats through 20 benzene exposure, is it possible that that 21 cancer could occur in humans? 22 A. Well, I think it's possible. And if 23 you didn't have any other information, that's 24 probably what the determination would be, 25 that it's possible or it's probable unless Page 40 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 you have mechanistic and additional 3 information that would lead you to believe 4 that the tumor type that you saw in the 5 animals was not appropriate or relevant to 6 humans. And there are certainly examples of 7 that. Inbred species of experimental animals 8 all have genetic instabilities that 9 predisposes them to various tumors. Some are 10 relevant to humans, and some are not. 11 Q. Thank you, Doctor. Are you familiar 12 with the ATSDR minimum risk levels for 13 benzene? 14 A. Peripherally. 15 Q. Do you know what the purpose of 16 those levels are? 17 A. I think these mineral -- minimum 18 risk levels are a screening level, sort of a 19 baseline risk assessment that would allow you 20 to say if you're below this, really there's 21 no additional study needed, and you can 22 pretty much forget about it. If you're 23 above this, that certainly is not an 24 indication that someone is going to be 25 harmed, but it would probably indicate from Page 41 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 the ATSDR's point of view that they would 3 want to do a more sophisticated risk 4 assessment exposure analysis to understand 5 what those individuals were exposed to. 6 Q. Doctor is, multiple myeloma a blood 7 cancer? 8 A. Sure. 9 Q. Do animal studies indicate that 10 benzene can cause cancer of the blood? 11 MR. PERRY: Object to form. 12 A. Well, you know, let's be specific. 13 The animal studies indicate that benzene 14 causes an aggressive T cell lymphoma/leukemia 15 that arises in the thymus and does not 16 really have a precise analogy to humans. So 17 that is actually a pretty good example of 18 where the tumor type does not really 19 correlate with what humans develop. Multiple 20 myeloma is not seen in animals, nor is it 21 seen in humans, but the way you connected 22 those two things I would disagree with. 23 Q. Are there animal studies that 24 indicate that benzene can cause lymphomas in 25 animals? Page 42 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. Yes, just what I told you. It's an 3 aggressive T cell lymphoma/leukemia that 4 arises in the thymus, doesn't really have a 5 precise analogy in humans. 6 Q. Are there mechanism studies that show 7 benzene can cause damage to the blood cells? 8 A. There are. In fact, some of my own 9 work would show that. 10 Q. Thank you. Doctor, did you review 11 the material safety data sheets for the 12 defendants in this case? 13 A. No. 14 Q. Doctor, what does a 2.0 or greater 15 relative risk mean to you? 16 A. By itself? Just that? 17 Q. Well, what does it mean in the 18 scientific community? 19 A. I mean, that's all I have, is that 20 relative risk equals 2.0? I don't have 21 anything else? 22 Q. And confidence intervals above a 1.0. 23 A. Okay. Well, that's different. A 24 relative risk of 2.0 with no confidence 25 intervals really doesn't tell me much at all. Page 43 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 What you just said, if the 95 percent 3 confidence interval does not include the 4 value of 1, then you would say that finding 5 represents a doubling of the risk, and it is 6 statistically significant. 7 Q. Doctor, what is general causation? 8 A. General causation is the analytical 9 process whereby scientists, a group of 10 individuals, a group of scientists would try 11 to determine whether or not a chemical, 12 really at any dose under any circumstances, 13 is capable of causing a specific disease. 14 Q. What is specific causation, Doctor? 15 A. If the general causation has been 16 satisfied, whatever your guidelines or 17 criteria or process that you use, you're 18 satisfied that the chemical can cause the 19 disease in question, then specific causation 20 would be what do we know about the 21 individual in question, and do we think that 22 that chemical -- that there was sufficient 23 exposure for sufficient duration, are the 24 characteristics of the disease consistent with 25 our understanding of what it should look Page 44 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 like. But basically did the chemical in 3 question cause that person's disease. 4 Q. And Doctor, you did not offer a 5 specific causation in your report, did you? 6 A. Well, you mentioned that in the 7 motion to exclude, and I disagree with that 8 characterization. I mean, I think by 9 definition if you say that the literature 10 does not support an association between 11 benzene and multiple myeloma, then that is 12 offering an opinion, an implied, explicit, or 13 implicit opinion, that Mr. Bishop's multiple 14 myeloma was not caused by benzene. 15 Q. Doctor, what are the known causes of 16 multiple myeloma? 17 A. I think the only one that has 18 achieved a level of certainty that I would 19 agree with is ionizing radiation. 20 Q. Was MR. Bishop exposed to ionizing 21 radiation? 22 A. I don't -- I don't know. 23 Q. Do you know what caused Mr. Bishop's 24 multiple myeloma? 25 A. I do not. Page 45 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. Doctor, how many 2.0 statistically 3 significant studies do you need to reach an 4 opinion on general causation? 5 A. I can't answer that question the way 6 you worded it. 7 Q. Okay. How many statistically 8 significant studies do you need, does Dr. 9 Pyatt need, to reach an opinion that a 10 chemical caused a person's disease? 11 A. Well, again, I mean, that's really 12 the same question. Let me tell you what my 13 problem with it is. You're not -- how many 14 studies are there? Is there only one study? 15 If there's only one study and that's all 16 there is out there, there's no 17 reproducibility, then you think, okay, here's 18 a statistically significant finding, but it's 19 never been reproduced. Maybe, all right. 20 This is suggestive, and perhaps we've got an 21 issue here. If there are two studies that 22 are out there and they're both statistically 23 significant and they're both elevated, then I 24 would start to think, yeah, this is probably 25 a real phenomenon. With regard to benzene Page 46 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 and multiple myeloma, there's 50 studies, 60 3 studies, looking at various aspects of 4 occupational exposure, benzene, et cetera. 5 And that collectively doesn't reach the level 6 of general causation so it's hard to answer 7 the question the way you've asked it. 8 Q. Okay. Doctor, are you familiar with 9 The Reference Guide on Toxicology? 10 A. The Reference Guide on Toxicology? 11 Q. Yes, sir. 12 A. I don't know what that is. 13 Q. Are you familiar with The Reference 14 Guide on Epidemiology? 15 A. I don't know what that is. 16 Q. Are you familiar with The Reference 17 Guide on Medical Testimony? 18 MR. FARNET: I just want to object. 19 Are you referring to the federal judicial 20 reference manual for -21 MR. WILLIAMS: Yes, I am. 22 MR. FARNET: The Federal Judicial 23 Center publications? Is that what you're 24 talking about? 25 MR. WILLIAMS: Yes. Page 47 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 MR. FARNET: Okay. 3 A. That helps clarify it, but the 4 answer is still no, I haven't read those. 5 BY-MR.WILLIAMS: 6 Q. So it would be fair to say you 7 didn't utilize the methodology outlined in 8 those publications? 9 MR. FARNET: Object to form. 10 A. I would disagree with that because 11 I'm -- without having read them, I'm sure 12 what I did is what they would require any 13 thoughtful scientist to do when they're 14 trying to establish a link between a chemical 15 and disease. 16 THE REPORTER: Excuse me, gentlemen. 17 Excuse me, MR. Williams. 18 (Whereupon, a Discussion was held off 19 the record.) 20 MR. FARNET: Let me just make a 21 clarification here. We have -- Eric, correct 22 me if I'm wrong. But I believe we have an 23 understanding here that one objection will 24 serve for all so you don't necessarily have 25 to get everybody's name, as long as you get Page 48 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 one objection. Is that agreeable, Eric? 3 MR. WILLIAMS: Yeah. That's fair 4 for this deposition, Glenn. 5 THE REPORTER: Thank you. 6 MR. RILEY: I was the one that 7 objected for Radiator. 8 THE REPORTER: Thank you. 9 THE VIDEOGRAPHER: Gentlemen, this is 10 Roger, the videographer. We have 11 approximately 5 minutes left on the tape. 12 I'll let you know when we have two. 13 MR. WILLIAMS: Thank you. 14 BY-MR.WILLIAMS: 15 Q. Doctor, can you tell me as you sit 16 here today how many studies The Reference 17 Guide on Toxicology, Epidemiology, or Medical 18 Testimony -- let me rephrase the question -19 how many statistically significant studies you 20 need to reach an opinion on general 21 causation? 22 MR. FARNET: I'll object. I think 23 it was asked and answered, but subject to 24 that. 25 MR. WILLIAMS: No, it wasn't. Page 49 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. I haven't reviewed those documents. 3 BY-MR.WILLIAMS: 4 Q. Doctor, can you tell me how many 5 statistically significant studies Dr. Infante 6 relied on that show benzene can cause 7 multiple myeloma? 8 A. Well, I'd have to go through his 9 report and count them up. But as far as -10 we've already talked about this. As far as 11 benzene and multiple myeloma directly linked, 12 the only statistically significant finding is 13 Rinsky, 1987. So that's the only one that 14 he possibly could have relied on. 15 Q. Well, let me ask you this, Doctor. 16 Did you read Dr. Infante's meta-analysis? 17 A. I've read Dr. Infante's meta-analysis 18 several times. 19 Q. Okay. Did he find statistically 20 significant results for benzene and myeloma? 21 A. You mean in his meta-analysis? 22 Q. Yes, sir. 23 A. That was extremely flawed methodology, 24 but yes. Based on what he decided to put 25 into his equation, he was able to manufacture Page 50 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 a statistically significant finding. 3 Q. And Doctor, was that a peer reviewed 4 publication? 5 A. That, I do not know. 6 Q. Is it published in a journal? 7 A. It was published in a journal. But 8 when I saw it, it came with a whole lot of 9 papers like that. And I think it was part 10 of a symposium, which means that it may not 11 have undergone peer review. Maybe it 12 underwent an abbreviated form of peer review. 13 I don't know. 14 Q. Where are you getting that 15 information from, Doctor? 16 A. Where am I getting what information 17 from? 18 Q. That it may have gone through an 19 abbreviated peer review process. 20 A. Well, when you publish, sometimes 21 journals will put out a special issue for a 22 given topic. Or sometimes journals will 23 cover a specific symposium, and people that 24 come and present in that symposium will also 25 -- in addition to their presentation, they Page 51 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 will submit a manuscript. I've been on some 3 of these groups. When you do that, it is a 4 different process, review or process than 5 when you just submit a journal to -- excuse 6 me -- submit a manuscript to a journal and 7 they send it out to, you know, blinded, 8 editorial folks that are going to offer a 9 review. So I don't know whether that 10 happened or not. But it did appear to me, 11 because it all came across together, that it 12 was part of a symposium. If that's true, 13 then it is possible, perhaps likely, that it 14 was a slightly different or very different 15 review process, from none at all, they just 16 put it in, to the editor, the conference 17 chairperson took a look at it and said fine. 18 But they usually do not have to go through a 19 standard, formalized peer review. 20 Q. Doctor, as you sit here today under 21 oath, is it your testimony that that 22 publication was not peer reviewed? 23 A. No, sir. I said when you first 24 asked me that question that I didn't know 25 whether it was or not. Page 52 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 THE VIDEOGRAPHER: And this is Roger 3 the videographer. We have less than two 4 minutes left on the videotape. 5 BY-MR.WILLIAMS: 6 Q. Okay. Doctor, are you going to give 7 an opinion as to the level of exposures Mr. 8 Bishop encountered at trial? 9 A. I haven't been asked to do that. 10 Q. Is that your field of expertise? 11 A. No, sir. Well -12 Q. Do you know if pipe fitters were 13 exposed to high levels of benzene in the 14 '70s? 15 MR. PERRY: Hey, Glenn, can we -- I 16 mean, Eric, can we take a break, just 17 because we're about to run out of tape? 18 MR. WILLIAMS: As soon as he answers 19 that question, we can take a break. 20 MR. PERRY: Okay. 21 A. I actually wasn't finished answering 22 the question before. So the question before 23 was whether or not it's my field of 24 expertise. It's not my field of expertise 25 to actually quantitate what a person's Page 53 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 cumulative exposure was. But toxicologists 3 are and have always been keenly interested in 4 what the quantitative exposures are and 5 relating that to the scientific data for a 6 given link or disease or chemical. So that 7 is part of what toxicology does. Now, the 8 last part of your question -- I'm sorry -9 something about pipe fitters, but you're 10 going to have to repeat it. 11 BY-MR.WILLIAMS: 12 Q. Were pipe fitters exposed to high 13 levels of benzene in the 70s? 14 MR. PERRY: Object to form. 15 A. That is outside of my expertise. 16 MR. WILLIAMS: Fair enough. We can 17 change the tape now. 18 MR. PERRY: I'm going to put the 19 phone on mute. We'll be back in about three 20 minutes or more. 21 THE VIDEOGRAPHER: We are off the 22 record at approximately 10:16. This is the 23 end of Tape No. 1 in the deposition of David 24 Pyatt. 25 (Whereupon a Recess was taken from Page 54 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 10:16 a.m. to 10:25 a.m.) 3 THE VIDEOGRAPHER: We are back on 4 the record at approximately 10:25. This is 5 the beginning of Tape No. 2. 6 BY-MR.WILLIAMS: 7 Q. Are you there, Dr. Pyatt? 8 A. Yes, I'm here. Thanks. 9 Q. Okay. What type of exposure 10 pathways would a pipe fitter encounter to 11 benzene? 12 A. Well, I mean, I don't know that much 13 about what pipe fitters do. I'm not an 14 industrial hygienist so you are getting a 15 little outside of my area. I mean, I can 16 tell you generally that inhalation is by far 17 and away the most important exposure for 18 benzene but that it is possible for there to 19 be some dermal exposure and a small 20 percentage of absorption through the skin. 21 So those, too, I would assume, would be 22 relevant. 23 Q. Ingestion, would that be a 24 possibility? 25 A. It seems a little far-fetched, but I Page 55 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 guess it's possible if you didn't wash your 3 hands or -- I don't know. That seems a 4 little out there. 5 Q. Dr. Pyatt, are you familiar with a 6 toxicologist named Dennis Paustenbach? 7 A. Yes, sir. 8 Q. Okay. Are you familiar with his 9 study that he published on dermal 10 calculations? 11 A. Who were the other authors? 12 Q. I believe this one was Paustenbach 13 -- Dennis Paustenbach published a study on 14 benzene dermal exposures. 15 A. I read a book chapter that Dr. 16 Paustenbach authored on dermal -- the dermal 17 pathway in risk assessment and various 18 variables, considerations, factors that someone 19 needs to consider if they're going to try to 20 quantitate that pathway for risk assessment. 21 And I'm pretty sure that benzene was one of 22 the examples that he used. But as far as a 23 peer reviewed publication on dermal absorption 24 of benzene per se, I'm not familiar with the 25 one you're talking about unless it is that Page 56 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 book chapter. 3 Q. Okay. Do you agree with Dr. 4 Paustenbach's publication on dermal 5 calculations for benzene? 6 A. I would have to see those. 7 Q. Okay. Do you know Dr. Paustenbach? 8 A. Yes. 9 Q. How do you know Dr. Paustenbach? 10 A. Well, several ways. Dr. Paustenbach 11 is petty famous as far as toxicologists go 12 so I knew of him and had met him quite a 13 while ago. He came and gave a presentation 14 at my department a long time ago. But then 15 I actually worked with Dennis, Dr. 16 Paustenbach, for almost a year with his new 17 -- at that point it was the newly formed 18 ChemRisk. I, along with Dr. Pamela Williams, 19 started the Boulder ChemRisk office. And I 20 did that for about eight months, I think, or 21 nine months. 22 Q. And why did you leave ChemRisk? 23 A. I have a pretty strong independent 24 streak. It just really wasn't working for 25 me to be in a highly structured company like Page 57 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 that. Plus, I had gotten a grant funded so 3 I was splitting my time with the university, 4 and that became more and more difficult, to 5 juggle all of my responsibilities. So I was 6 at the university enough to where it really 7 just didn't make sense to stay on as an 8 employee of ChemRisk. So I retired in 9 September, I think, of maybe '04. 10 Q. Have you ever seen any studies that 11 Dr. Paustenbach published that were -- that 12 used the wrong methodology? 13 A. Not -- no, not that I can recall 14 sitting here today, no. 15 Q. Okay. I know I asked you earlier 16 if you have ever published a study involving 17 benzene and multiple myeloma. My specific 18 question is, have you ever published a study 19 that resulted in an epidemiological risk, 20 relative risk, for multiple myeloma and 21 benzene? 22 A. No. 23 Q. What references of Dr. Infante's did 24 you read? 25 A. I'd have to go through and -- I've Page 58 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 read them all. 3 Q. Okay. Doctor, did you have the 4 opportunity to look at a document that is 5 Environmental Health, Inc. on the front page 6 of a section of it where it says, "Chronic 7 benzene exposure can cause multiple myeloma"? 8 A. Sorry. No, I haven't seen that. 9 Q. Okay. Would that be of interest to 10 you? 11 A. Sure. I'd be interested in it. 12 Q. Okay. If I told you I received a 13 document from Shell that had that information 14 in it, would that change your opinion that 15 benzene could cause multiple myeloma? 16 A. Well, you know, I'd first of all 17 have to read -- I mean, is it a study? I 18 don't even know what it is you're talking 19 about. It has a title that I think would 20 make me believe that it had some relevance 21 to this issue, but I don't know what's in it 22 or what they've done. For all I know they 23 find that it doesn't cause it. I mean, I 24 just don't know. I don't know what's in 25 that document, whether it -- Page 59 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. You didn't read it in this case, 3 correct? 4 A. No. I haven't seen it, no. 5 Q. Fair enough. Doctor, earlier I 6 asked you if you reviewed the material safety 7 data sheets for the chemicals at issue in 8 this case. Would it be fair to say that 9 you do not know the benzene content in the 10 chemicals at issue in this case? 11 A. Well, I think it would be fair to 12 say I don't know what Shell listed on their 13 MSDS sheets or any of the other defendants 14 on their MSDS sheets. I mean, I've been 15 doing this quite some time, and I am 16 interested in the content of benzene in 17 various solvents and in various petroleum 18 products. So if you told me what product 19 you were referring to, I would have a 20 generally good idea as to how much benzene 21 would likely be in there. But specifically 22 what they listed on their MSDS sheets, no, I 23 would have to look at it. 24 Q. Okay. What's the benzene content of 25 pyrolysis gas? Page 60 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. That's a good question. I don't 3 know the answer to that. 4 Q. Fair enough. Doctor, do peak 5 benzene exposures play a role in the 6 development of blood disorders? 7 A. Well, can you specify what blood 8 disorders you're referring to? 9 Q. Any one that you think benzene can 10 cause. 11 A. Fair enough. There are some 12 studies, and there has always been some 13 debate and discussion around the most 14 appropriate exposure metric with regard to 15 AML risk. I think, in general, the 16 scientific literature supports the notion of 17 using cumulative exposures. But there are 18 studies and evaluations within studies where 19 AML risk was also correlated with peak 20 exposures. So there are both. Both exist 21 in the literature. Certainly from an 22 occupational, regulatory point of view, 23 cumulative exposure makes the most sense, and 24 it's definitely going to be the easiest one 25 to deal with scientifically. There are Page 61 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 certainly some biologically plausible reasons 3 why high dose, intense exposures would have a 4 different response than low dose, chronic 5 exposures even if they equaled the same 6 cumulative dose. So, you know, the answer 7 is, we don't fully have that completely 8 worked out. Cumulative exposure still is the 9 one that is the most commonly calculated. 10 Q. And Doctor, does the EPA use 11 cumulative benzene exposure figures in 12 regulatory purposes? 13 A. Well, it depends on which -- what 14 are you talking about with EPA? Are you 15 talking about their noncancer reference 16 concentration, or are you talking about their 17 cancer potency slope factor? Because they're 18 very different. 19 Q. I'm referring to cancers, and I'm 20 referring to any type of risk assessment the 21 EOA would do. Do they use a cumulative 22 benzene dose? 23 A. Yes. 24 Q. Okay. 25 A. Yes. They -- Page 62 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. What about the slope factor that you 3 were talking about? 4 MR. FARNET: I just want -- you cut 5 off the witness with his answer so I just 6 want to make sure the witness has finished 7 his answer. 8 THE DEPONENT: That's okay. He 9 followed up with the next question. That's 10 where I was going anyway. 11 A. The cancer slope factor, their cancer 12 risk assessment, as described in IRIS and 13 with their carcinogenic data supporting their 14 IRIS value is based on the Pliofilm cohort. 15 It's based on Postenbach's analysis, Crump 16 and Allen's analysis and Rinsky's analysis. 17 They express it as a range. And all three 18 of those are -- the risks for AML are 19 derived by looking at cumulative exposure. 20 So yes, their cancer potency factor is based 21 on cumulative exposure. Their noncancer 22 value, the reference concentration is 23 different. 24 BY-MR.WILLIAMS: 25 Q. Okay. Doctor, does the EPA or any Page 63 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 other federal agency use dermal calculations 3 for benzene exposure? 4 A. I don't think they use it in terms 5 of actually quantitating it and putting it 6 into their calculations because their cancer 7 risk assessment is based on what I just told 8 you, these three exposure assessments done 9 for Pliofilm, the Pliofilm cohort. I'm sure 10 there is language in there about dermal, but 11 it is not part of their quantitative 12 assessment of risk. 13 Q. Do you know if the National Cancer 14 Institute uses dermal calculations for benzene 15 for any purpose? 16 MR. PERRY: Object to form. 17 A. The NCI, I don't -- I don't know 18 where they would -- under what -- I don't 19 know how they would. I don't know what the 20 NCI would ever do that would fit in -- that 21 would answer your question. 22 Q. Okay. Doctor, do all studies 23 contain flaws or imperfections? 24 MR. PERRY: Object to form. 25 A. All scientific studies? Page 64 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 BY-MR.WILLIAMS: 3 Q. Yes, sir. 4 A. I would say if you really were 5 critical and you looked hard enough, you 6 could probably take issue with just about 7 every study that's been published. Some of 8 those things might be quibbles, and some are, 9 you know, true methodological flaws. But the 10 peer reviewed process is not perfect, and 11 science is an iterative process. And we all 12 do the best we can, but I would say the 13 answer to that is, in my opinion, probably 14 yes. 15 Q. Okay. Doctor, do you know if the 16 material safety data sheets for gasoline, 17 crude oil, and other products in this 18 litigation contain warnings that benzene can 19 cause leukemia or blood disorders? 20 A. That is my understanding, but I 21 would need to see the MSDS sheets that 22 you're referring to to know. I mean, 23 there's a labeling requirement, and crude oil 24 doesn't exceed that labeling requirement. 25 There's just not enough benzene in there. Page 65 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 So I don't know whether it would have it on 3 every MSDS sheet or not. I just wouldn't 4 know without looking at the sheet itself. 5 Q. Doctor, what is the threshold for 6 benzene exposure in AML? 7 A. In my opinion, based on the existing 8 scientific literature and the existing 9 scientific data, that is going to be 10 somewhere between 40 and maybe even 500 part 11 per million years, with the best estimate at 12 this point probably being 200 PPM years. 13 But I would say the low end of that range 14 would be 40 or 50. 15 Q. And when you say "40 or 50," are 16 you talking about multiple exposures to 40 to 17 50 parts per million? 18 A. No, no. All of those values that I 19 just expressed are in part per million year 20 so it is a cumulative dose metric. 21 Q. Okay. 22 A. With regard to air concentrations and 23 a threshold for air concentrations, if you're 24 using the same study that the cumulative 25 exposure came from -- and that is the Page 66 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Pliofilm cohort and Rinsky and Crump and 3 Allen, et al., and Williams and all the 4 other exposure assessments that have been 5 done. Rob Schnatter did a very nice 6 analysis that he published in 1996 of what 7 the air concentrations had to be within the 8 Pliofilm facility, the Goodyear facility 9 there, to result in an increased risk of 10 AML, and that was about 20 part per million, 11 less than 20 part per million air 12 concentrations. And there was no real 13 elevation of AML risk. 14 Q. Doctor, would a relative risk of 2.0 15 indicate that there is an increase of 100 16 percent in the exposed population? 17 A. A relative risk of 2.0? By 18 definition, that's what that would mean. 19 Q. In your opinion does a 3.0 relative 20 risk provide strong evidence of a causal 21 relationship? 22 A. Well, 3.0 is bigger than 2.0 so I 23 would consider that to be stronger than 2.0. 24 You could have 50. But without looking at 25 the other considerations -- what's the Page 67 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 confidence interval, how many studies, how 3 many cases -- there's a lot of things that 4 go into it other than just that number 5 before you can say that you think that's 6 even real. If that's a real finding and it 7 is statistically significant, it was based on 8 a sufficient number of cases, then that's a 9 reasonable -- that's a reasonable effect. 10 Q. What's a sufficient number of cases? 11 A. Well, certainly more than one. It 12 would depend on what the disease is and the 13 power analysis and other considerations for 14 calculating the relative risks. So you can't 15 -16 Q. How many cases of multiple myeloma 17 would it take for you to think that there is 18 a sufficient number of cases in a study? 19 MR. PERRY: Object to form. How 20 many cases of multiple myeloma or how many 21 multiple myeloma studies? 22 MR. WILLIAMS: Cases in a study. 23 A. Well, I know there's a couple that 24 are out there where there was one or maybe 25 two. And I look at those, and I still Page 68 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 consider those, but those are more like case 3 reports to me. If you have an n of 1, one 4 single case, to then calculate a SMR, a 5 standardized mortality ratio, and put 6 confidence intervals around it, that's 7 ridiculous. So that's wrong. That is 8 inappropriate from an epidemiological point of 9 view. You probably could do it with two, 10 but most don't. Most epidemiologists would 11 not attempt to do that because it's too 12 unstable. When you get an n of 3, I think 13 then from at least a statistical point of 14 view, you could calculate a reasonably stable 15 SMR. The higher that number, the better the 16 answer is going to be and the more reliable. 17 But, you know, those -- this is a topic that 18 is directly in the wheelhouse of an 19 epidemiologist. 20 BY-MR.WILLIAMS: 21 Q. And that's not something that you 22 feel is in your field of expertise? 23 A. Well, I certainly wouldn't look at a 24 study and say that only has two cases, I'm 25 not going to pay any attention to it. So I Page 69 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 looked at all of the scientific data, whether 3 it had one case or whether it had eight and 4 didn't really say this one is more important 5 than that one and do this kind of relative 6 strength of the individual studies. 7 Q. Doctor, what is a dose response? 8 A. Dose response is what the words 9 mean, is that there is a biologically 10 rational response at what you're looking at, 11 the endpoint that you're measuring, with 12 increasing exposures or increasing or 13 decreasing doses. So if the dose changes, 14 then you see a biologically meaningful 15 response in what you're looking at. If the 16 dose goes up and the response goes up, then 17 you would consider that a dose response. If 18 the dose is changing and the response is not 19 changing or changing in a way that just 20 doesn't make any sense from a biological 21 point of view, then you don't have a dose 22 response, and you have to really question 23 whether you've set up your experiment right 24 or whether the endpoint that you're looking 25 at is really connected to the dose at all. Page 70 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. Doctor, do you know if Dr. Infante 3 relied on any studies that show a dose 4 response for benzene and multiple myeloma? 5 A. Well, Dr. Infante had most of the 6 studies in his report. Assuming that he 7 relied on all of those, then that would be 8 my assumption. 9 Q. Well, did any of those studies show 10 a dose response for benzene and multiple 11 myeloma? 12 A. The only one that I can think of is 13 Jim Collins' work with the Dow Chemical 14 worker studies, Collins and Ireland. And 15 there was an increasing response with benzene 16 exposure. 17 Q. Okay, Doctor. We're going to talk 18 about those. Do you disagree with the 19 findings of the 1987 Rinsky study? 20 A. I don't disagree with them. I mean, 21 why would I -- he published what -- you 22 know, he published what he found. 23 Q. And did he find a SMR of 409? 24 A. For multiple myeloma, yes. I mean, 25 I disagree with some of the interpretations Page 71 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 I've heard of that data based on looking at 3 what those workers were exposed to. I also 4 think it's inappropriate to not consider the 5 updates that have gone into that cohort and 6 follow that cohort through time because that 7 gives you the appropriate information to 8 evaluate those original cases of multiple 9 myeloma. 10 Q. And we'll get to that study in a 11 little bit. I'm asking you about the study 12 that he relied on. Doctor, do you know the 13 results of the Wong 1987 study of multiple 14 myeloma? 15 A. Yes. And by "he" in your earlier 16 question -17 THE REPORTER: I'm sorry. Repeat 18 your question. 19 THE DEPONENT: My fault. 20 BY-MR.WILLIAMS: 21 Q. What was the relative risk for 22 multiple myeloma in that study? 23 A. As I recall there were two cases in 24 the intermediate exposure category, and the 25 relative risk was 350, but it was not Page 72 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 statistically significant. That's -3 Q. Referring -4 A. -- my recollection. 5 THE REPORTER: I'm sorry. Repeat 6 your question. 7 Q. I'm referring to the three cases, 8 Doctor. 9 A. The three-case one -- I mean, okay. 10 I'll answer one more question, and then I 11 probably should pull it out. There was not 12 a quantitative risk assessment done or 13 quantitative risk ratio calculated for those. 14 The only one that he calculated -- that Dr. 15 Wong calculated was in the intermediate dose 16 range, and there were only two cases. 17 Q. What was the relative risk for the 18 three cases, Doctor? 19 A. I just answered that. He did not 20 do that. 21 Q. Decoufle, do you recall that study? 22 A. Which one? 23 Q. Decoufle, if I'm saying it correct. 24 A. Decoufle (pronouncing)? 25 Q. Yes. There you go. Page 73 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. I'm with you. 3 Q. What were the findings on that 4 study? 5 MR. FARNET: Hold on. Doctor, would 6 you like to pull the studies out? 7 THE DEPONENT: Yeah. I'm going to. 8 A. Can you wait just one second, Mr. 9 Williams, and let me get out my binder? 10 Q. Sure. 11 MR. PERRY: Off the record. 12 THE VIDEOGRAPHER: I have to have 13 counsel agree to go off the record. 14 THE DEPONENT: We don't have to go 15 off the record. It will just take me two 16 seconds. 17 A. Okay. I'm back. Now, I remember 18 the Decoufle study pretty well. The authors 19 did not quantitate a risk ratio for multiple 20 myeloma in their study. 21 BY-MR.WILLIAMS: 22 Q. There was no SMR; is that your 23 testimony? 24 A. That is my testimony. 25 Q. Doctor, let's go to Kirkeleit. Page 74 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. Okay. 3 Q. Were there any findings that were 4 statistically significant for multiple myeloma 5 in crude oil? 6 A. Yes. 7 Q. What were they, Doctor? 8 A. What were the numbers? 9 Q. Yes, sir. 10 A. I think it was 2 point something -11 I can look and tell you -- in one group of 12 upstream workers. Upstream operators 13 offshore, multiple myeloma was 2.85, the 14 relative risk, with a 95 confidence interval 15 of 1.37 to 5.93. 16 Q. Are you familiar with the Bradford 17 Hill postulates? 18 A. I don't think I've ever heard them 19 called postulates before, but yes, I'm 20 familiar with Bradford Hill. 21 Q. Okay. In the original Bradford Hill 22 article, what did he call them? 23 A. I don't know. Let's look. He may 24 have called them postulates. I don't 25 remember. I thought he called them Page 75 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 considerations or -- I know people use 3 "criteria," and other people don't like that. 4 Q. Did Bradford Hill himself say that 5 all or none of his -- let's call them 6 considerations are required to offer an 7 opinion as to causation? 8 A. Did he say all or none? 9 Q. Yes. 10 A. Well, I'm pretty sure he did not say 11 all of them were. But it's illogical for 12 him to say that none of them are required? 13 Why would he even have them? 14 Q. Well, I'm asking you, do you know if 15 there's a statement in his article that says 16 that? 17 A. That none are required? I can't 18 imagine that that -- I mean, I haven't 19 memorized the paper, but that just doesn't 20 make any sense. Temporality -- how can you 21 not have temporality and expect there to be 22 causation? So that one is absolutely 23 required by everyone's -- everyone's 24 definition. 25 Q. Doctor, let's go to your references, Page 76 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 your reference list on your report. 3 A. Okay. 4 Q. Okay. I noticed that you have 5 approximately -- you have 79 studies on here; 6 is that correct? 7 A. Hold on just a second. My original 8 one or the rebuttal declaration? 9 Q. We're talking about the one attached 10 to your report. 11 A. Yes. Okay. Right, 79. 12 Q. Okay. Doctor, how many of these 13 studies -- let me rephrase that. Earlier 14 you testified that there were 60 studies that 15 addressed multiple myeloma and benzene; is 16 that correct? 17 A. I don't recall saying that. I mean, 18 I don't have an exact number. We could 19 probably get -20 Q. How many of these studies on your 21 reference list address benzene exposure and 22 multiple myeloma? 23 A. Well, we'll have to go through them. 24 Q. Just call out the number, and we can 25 go from there. Page 77 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. 14. 3 Q. No. 14? 4 A. Correct. 5 Q. Okay. 6 A. 15. 7 Q. Okay. 8 A. 20, 22, 23, 24, 25, 26, 27, 28, 29, 9 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 10 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 11 52, 53, 54 -- let's take 54 back off -- 55, 12 56, 57 -- maybe not 57, probably something 13 that's peripherally related -- 58, 59. These 14 are kind of occupational studies, surveys of 15 multiple myeloma where you could speculate 16 that there are some occupations that would 17 have benzene exposure, but they didn't 18 actually quantitate it, the same with 60, so 19 there's a lot of those; 61, 62. 63 is a 20 review paper so that's probably not worth 21 listing. 65 is my review paper. 66 is a 22 review paper. It looks likes the rest of 23 these deal with the biology of multiple 24 myeloma; maybe 79. I don't remember whether 25 Dr. Kyle specifically addressed occupational Page 78 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 risk factors. So that would be an 3 off-the-cuff list. 4 Q. Okay. Doctor, which studies that 5 you just identified provide epidemiological 6 results for benzene and multiple myeloma? 7 A. For benzene? 8 Q. Yes, sir. 9 A. Not for crude oil? 10 Q. No. We're talking benzene right 11 now. 12 A. And what do you mean? Where they 13 have quantitated the benzene exposure? 14 Q. Yes. 15 A. Well, 14 and 15 are case reports 16 that have to do with benzene, but it was not 17 quantitated so I guess those don't count. 18 20 we talked about. 21 or 22, 23, 19 follow-ups of that one. 24 is quantification 20 of benzene and multiple myeloma. So is 25. 21 26, 27, 28, I don't know. I'd have to look 22 at it. He's certainly talking about benzene, 23 but I don't know if he's quantitated it or 24 not. 31 for sure has. 32, NCI, China -25 Q. Let me stop you there, Doctor. I Page 79 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 think you misunderstood my question. I said 3 benzene and multiple myeloma. Multiple 4 myeloma is not addressed in the Hayes study 5 so maybe we need to start over because I'm 6 asking you specifically for benzene with a 7 quantified exposure, as you described, and a 8 result, a statistical result, for myeloma. 9 It seems like you're pulling studies that 10 don't address myeloma. 11 A. I disagree. 12 Q. Tell me where they say myeloma in 13 the '97 Hayes study. 14 A. Well, there weren't any multiple 15 myeloma cases, which you can get out of the 16 Travis '94 and the Yin '96. So there's no 17 reason to do a statistical analysis on one 18 or no cases, but that doesn't mean that that 19 study does not have relevance because it is 20 profoundly relevant to this issue. Because 21 they looked at a very large cohort of 22 workers that had very high exposures to 23 benzene, and they did not see an excess in 24 multiple myeloma. In fact, they didn't see 25 any. So I think that study is clearly Page 80 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 relevant to what we're discussing. 3 Q. And Doctor, that's not my question. 4 My question was, I wanted you to identify 5 every study that shows a statistical result, 6 whether it be statistically significant or 7 not, for benzene and myeloma. 8 A. And I think I've done that. And I 9 will not take Hayes off that list. 10 Q. Okay. We'll go back to that. Keep 11 going, Doctor. 12 A. 34; probably 39, but that's related 13 to Bond. Let's see. Schnatter for sure. 14 MR. FARNET: What number is that? 15 BY-MR.WILLIAMS: 16 Q. What number? 17 A. 49. I'm just doing this from 18 memory. I mean, I'd really need to go 19 through and look at all these, where they've 20 quantitated the benzene exposure. Well, I 21 think that might be all. 22 Q. Okay. Doctor, what was the result, 23 the statistical result, for No. 21, the Crump 24 study for myeloma? 25 A. There wasn't. That was a risk Page 81 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 estimate so that was part of the 3 understanding of what the exposures were in 4 the Pliofilm cohort. 5 Q. So there was no result calculated 6 for myeloma in that study? 7 A. No. 8 Q. Okay. Doctor, No. 22, Silver, what 9 was the statistical result for Silver for 10 myeloma? 11 A. I'd have to look and see. 12 Q. Go ahead. 13 A. Do you want it for males and females 14 or white males, or what do you want? 15 Q. Give me the overall. 16 A. The overall multiple myeloma was 17 2.04, and the 95 percent confidence interval 18 was 0.66 to 4.76. That was for males and 19 females, all races combined. 20 Q. What about No. 24, Doctor? 21 A. The total was 2.01, 95 percent 22 confidence interval 0.79 to 7.45. 23 Q. I'm sorry. Did you say .01 was the 24 relative risk? 25 A. 2.01. Page 82 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. Okay. 3 A. I think that's what it is. It's 4 hard to read it. 5 Q. What about No. 25? 6 A. So you know these are all the same 7 cohort, right? 8 Q. I'm just asking you to identify the 9 number. 10 A. Right. I'm looking. I know it's 11 in here. Sorry it's taking so long. It's 12 somewhere in the text, and I'm not seeing 13 it. 14 Q. Okay. No. 26, Bond, do you know 15 the number for that study? 16 A. Bond, there weren't any multiple 17 myeloma cases. 18 Q. All right. For Collins, No. 27, 19 Infante identified a 4.0 but with a 20 confidence interval below -- 1.0 or below. 21 Does that provide any evidence of an 22 association between benzene and multiple 23 myeloma to you? 24 A. The Collins study? 25 Q. Yes. Page 83 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. I would put the Collins study on the 3 positive side of the column. 4 Q. What about the Constantini with a 5 1.9 odds ratio but the confidence interval is 6 below 1.0? 7 A. I would have to look at it. No, 8 no. 9 Q. No? Okay. What about the Ireland 10 study, No. 34, with 2.3 SMR? 11 A. That's the same -- that's the same 12 as Collins. It's the same cohort. 13 Q. But it's a 1997 study. Would you 14 put that on the positive side? 15 A. I would put it in the same place 16 that I would put Collins, Jim's analysis of 17 that cohort. 18 Q. What about No. 39? Do you know the 19 results from the Ott study? 20 A. Ott is an update of Bond, and there 21 were no multiple myelomas in that cohort. 22 Q. Okay. I believe you said 49, 23 Schnatter? 24 A. Schnatter (pronouncing). 25 Q. Schnatter. Page 84 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. There's lots. 3 Q. I'm sorry, Doctor. I couldn't hear 4 you. 5 A. There are lots of analyses between 6 benzene exposure and multiple myeloma risk. 7 The highest PPM category, the multiple 8 myeloma risk, the highest benzene cumulative 9 exposure PPM year category, the multiple 10 myeloma risk is 1.22 with a 95 percent 11 confidence interval of 0.7, 0.07 to 20. 12 Q. Did you rely on this study? 13 A. Sure. 14 Q. And Doctor, can you tell me who 15 sponsored this study? 16 A. Who sponsored the Schnatter study? 17 Q. Yes, sir. 18 A. Well, Dr. Schnatter works for 19 Exxon/Mobil so I would assume that it was 20 part of his job as an epidemiologist for 21 Exxon. 22 Q. Okay. Doctor, let's go to the Otto 23 Wong 1999 study. 24 A. Okay. 25 Q. Did they find a relationship for Page 85 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 benzene and multiple myeloma? 3 A. No, sir. 4 Q. Doctor, who sponsored this study? 5 A. I don't know the answer to that. 6 Q. Turn to Page 221, the last 7 paragraph. 8 MR. FARNET: Excuse me. What study 9 are we on? 10 THE DEPONENT: Wong, 1999. 11 MR. FARNET: Thank you. 12 A. The "We thank" -- let's see. 13 BY-MR.WILLIAMS: 14 Q. Yes, sir. 15 A. Thanking people -16 Q. American -17 A. -- at various universities -18 Q. -- Institute -19 THE REPORTER: Excuse me. 20 (Whereupon, a Discussion was held off 21 the record.) 22 A. I'm looking. So he's thanking lots 23 of people, reviews, thanks API for valuable 24 support and assistance, thanks some companies 25 for data, thanks NC -- National Center for Page 86 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Health Statistics for information and the 3 API, the American Petroleum Institute for 4 sponsoring the project; there you go. 5 BY-MR.WILLIAMS: 6 Q. What are the names of those 7 companies, Doctor? 8 A. The name of the four participating 9 companies? Chevron -10 Q. Yes, sir. 11 A. Chevron, Exxon, Mobil, and Shell. 12 Q. Okay. Doctor, could you go to the 13 Wong 2001 study, No. 51. 14 A. You know, apparently I can't. I 15 don't have a hard copy with me. Sorry. 16 That one slipped through the cracks. 17 Q. Do you know what the results were 18 for multiple myeloma in this study? 19 A. You know, hold on. I might have it 20 in one other binder. Okay. I'm getting 21 there. Okay. The abstract reads, "No 22 increase was detected for other leukemia cell 23 types, non-Hodgkin's lymphoma, or multiple 24 myeloma." You want the actual number? 25 Q. Actually, I'm looking at the Page 87 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 acknowledgments on the last page, and I'm 3 asking you to tell me, do you know who 4 sponsored this study? 5 A. Oh. You don't care about the 6 number? You just want to know who sponsored 7 it? 8 Q. I think you said there was no 9 increase in multiple myeloma. 10 A. Right. 11 Q. Just give me the number, too. 12 A. I'm looking. Well, he kind of lumps 13 them in, cancer of other lymphatic tissue. 14 And there's lots of ways of slicing it, but, 15 yeah, there's no -- maintenance, multiple 16 myeloma. So he's got the total cohort. 17 That's probably what you want. Total cohort 18 for multiple myeloma, 14 cases, expected 19 14.54. SMR of 96.3. 95 percent confidence 20 interval of 52.7 to 161.6. And who 21 sponsored -22 Q. What did you say the relative risk 23 was, Doctor? I couldn't hear you. 24 A. Yeah. For the overall cohort -25 this is on Page 395. I mean, there's lots Page 88 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 of ways of looking at it. But the total 3 cohort, the SMR was 96.3. 95 percent 4 confidence interval was 52.7 to 161.6. 5 Q. And again, my question is who 6 sponsored that study, Doctor? 7 A. I haven't gotten to the end yet so 8 that's where I was going; "and to Mobil 9 Corporation, now Exxon/Mobil, for sponsoring 10 the project." 11 Q. Thank you, Doctor. If you'd turn to 12 the Raabe study from 1998. 13 A. Raabe (pronouncing)? 14 Q. Raabe. 15 A. That's okay. He won't hear this. 16 1998, yes. 17 Q. And what were the results for 18 multiple myeloma in this case? 19 A. It looks like the overall results 20 were, the SMR was 121. 95 percent 21 confidence interval, 55 to 230. 22 Q. And Doctor, can you tell me who 23 sponsored this study? 24 A. He used to work for Mobil so I 25 would assume that that had something to do Page 89 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 with it. Yes, it -3 Q. Does it say "Mobil Business Resource 4 Corporation" on the first page of the study? 5 A. Yeah. It doesn't say anything in 6 the acknowledgments. That's where he worked. 7 Yes. That's where -8 Q. Fair enough. I'd like to direct you 9 to the Otto Wong study of 1997, and if you 10 could turn to Page 191. 11 A. Which number is that on my 12 citations? 13 MR. PERRY: You said '87 or '97? 14 THE DEPONENT: '97. 15 BY-MR.WILLIAMS: 16 Q. It's No. 42 in your reference list. 17 A. Oh, right, right, his meta-analysis. 18 Okay. Hang on. 19 Q. And I'm on Page 191, Table 1. 20 A. Okay. I'm getting there. Okay. 21 Q. Yes, sir. I believe this study 22 includes studies of refineries from Amoco, 23 Chevron, Exxon/Mobil, Shell, Texaco, Institute 24 of Petroleum UK, American Petroleum Institute, 25 and Australian Institute of Petroleum, Page 90 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Imperial Oil. Does that sound right to you? 3 A. That's Canadian, yeah. He looked at 4 UK refineries, Canadian refineries, and U.S. 5 refineries. 6 Q. Okay. And the studies he looked at 7 were studies prepared by these refineries, 8 correct? 9 A. I don't know that that's always the 10 case. I mean, it would be -- there could 11 be other investigators that were looking into 12 that refinery so I don't know what you mean 13 by "prepared by" the refinery. 14 Q. Studies sponsored or paid for by the 15 refineries. 16 A. I don't know. We would have to go 17 to each one of them. I'm sure some of them 18 are. 19 Q. Okay. Were any of these studies -20 did they find a statistically significant 21 relationship or result for multiple myeloma 22 and benzene? 23 A. Were there any? 24 Q. Yes, sir, in Table 2. 25 A. No. Page 91 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 Q. Okay. Fair enough. Doctor, can you 3 point to one study in your references that 4 was published by any of the refineries -5 well, let's say Shell -- that shows a 6 statistically significant result for benzene 7 and multiple myeloma? 8 A. The only statistically significant 9 result -- and by that I'm assuming you mean 10 positive -- for benzene and multiple myeloma 11 was the Goodyear facility published by Rinsky 12 in '87. So Shell didn't -13 Q. That's not my question. 14 A. Shell didn't have -15 Q. Can you point to a study that was 16 pertaining to a Shell facility with benzene 17 exposure where there is a statistically 18 significant result for benzene and multiple 19 myeloma? 20 A. No. 21 Q. What about Exxon? 22 A. No. 23 Q. What about Mobil? 24 A. No, sir. 25 Q. What about Chevron? Page 92 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. I think the answer is no. 3 Q. What about the American Petroleum 4 Institute? 5 A. Well, the American Petroleum Institute 6 sponsors studies, but that's not a refinery. 7 So they may have had something to do with 8 many of these studies. 9 THE VIDEOGRAPHER: Mr. Williams, this 10 is Roger, the videographer. We have 11 approximately five minutes left on this tape. 12 MR. WILLIAMS: Thank you, sir. 13 BY-MR.WILLIAMS: 14 Q. Can you point to an American 15 Petroleum Institute study that shows a 16 statistically significant positive result for 17 multiple myeloma and benzene? 18 A. I don't know whether API had 19 anything to do with Rinsky's work or not. 20 That's the only statistically significant 21 study on multiple myeloma and benzene, the 22 first Rinsky paper, so that's it. Everything 23 else is going to be no. All of the other 24 studies that looked at benzene and multiple 25 myeloma, the answer is going to be no, there Page 93 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 aren't any. 3 Q. Doctor, let's go back to the 1977 4 Shell study authored by Dr. Joiner and Dr. 5 Stallone. 6 MR. PERRY: Object to form. 7 BY-MR.WILLIAMS: 8 Q. There were four cases of multiple 9 myeloma in 1976 alone. Dr. Joiner's 10 testified at the OSHA benzene emergency 11 standard hearings that there were 30,000 12 employees. Would that give a relative risk 13 above 2.0 for that study? 14 A. I couldn't answer that, sitting here. 15 That's a question that an epidemiologist 16 could do relatively straightforward based on 17 demographics of the population of 30,000, 18 race and age and other things. But I can't 19 do it just sitting here. 20 Q. Well, would that produce an increased 21 number of cases of myeloma, in your opinion? 22 A. There's no way to know that. 23 Q. Okay. Let me ask you one final 24 question, Doctor. I'm going to give you a 25 worst case scenario. A guy swims in a pool Page 94 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 full of benzene for 30 years, eight hours a 3 day. Could he under any circumstances 4 contract multiple myeloma? 5 A. I think the scientific literature 6 that we've been discussing and much of it 7 that we didn't discuss would say the answer 8 to that is no. 9 Q. I'm asking you for your opinion. 10 A. That is my opinion. 11 Q. Okay. 12 A. My opinion is based on the 13 scientific literature that we discussed and 14 much of it that we didn't, and that 15 supported opinion is no. 16 Q. Doctor, how many studies do you 17 think there are that analyze or provide a 18 statistical result for benzene and multiple 19 myeloma? 20 A. I think we kind of went through that 21 list, but I don't know off the top of my 22 head. I'd have to go through and look at 23 them; maybe 10. 24 Q. Certainly not 60; would you agree 25 with that? Page 95 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. Not that -- not that you would be 3 able to say, This is just a benzene study. 4 But the refinery studies where they've 5 quantitated benzene exposures in their workers 6 and then calculated relative risk or SMRs for 7 multiple myeloma, that counts. I think that 8 is a legitimate piece of data that is 9 relevant to this question. So the bracket 10 that you're putting around the counting I'm 11 not totally clear on. But no, I don't think 12 it would be 60. 13 Q. Would it be 30? 14 A. Well, you know, 32, 64? I'd have 15 to go through and count them. I don't know 16 the exact number, but there's a lot. This 17 is not -18 MR. WILLIAMS: Okay. Thank you, 19 Doctor. I don't have any other questions at 20 this time. 21 MR. PERRY: Let's take a quick 22 break. 23 MR. WILLIAMS: Okay. 24 MR. FARNET: Let's take a break, 25 Eric. We'll be back in about -- Page 96 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 THE VIDEOGRAPHER: We are off the 3 record at approximately 11:22. This is the 4 end of Tape No. 2 in the deposition of David 5 Pyatt. 6 (Whereupon, a Recess from 11:22 a.m. 7 to 11:33 a.m.) 8 THE VIDEOGRAPHER: We are back on 9 the record at approximately 11:33. This is 10 the beginning of Tape No. 3 in the 11 deposition of David Pyatt. 12 EXAMINATION 13 BY-MR.FARNET: 14 Q. Dr. Pyatt, this is Glenn Farnet. I 15 just have two questions to clarify some 16 terminology. You were asked about Study No. 17 51 in your report, which is the Wong 2001 18 study, and you were asked what the SMR was 19 reported for multiple myeloma. Do you recall 20 that? 21 A. Yes. 22 Q. And I believe you said that there 23 was an SMR of 96.3 with a 95 percent 24 confidence interval of 52.7 to 161.6, 25 correct? Page 97 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 A. Correct. 3 Q. Could you explain whether or not 4 that is an elevated risk or a statistically 5 significant result? 6 A. No, it's not. I mean, the issue is 7 with an SMR you take the risk ratio, which 8 is the observed over the expected, and you 9 multiply it by a hundred. So an SMR of 96 10 is the same as a risk ratio or a relative 11 risk of 0.96. So it's a little confusing if 12 you don't understand what the epidemiologists 13 do to report it as a standardized mortality 14 ratio. But it's not 96. It's .96. So 15 the confidence interval would be 0.52 to 16 1.61, and that is not an elevated risk, and 17 it is not statistically significant. 18 Q. And would the same be true for the 19 results you discussed regarding Raabe, 1998, 20 where you listed an SMR of 121 with a 21 confidence interval of 55 through 230? 22 A. Sure. I mean, with an SMR of 121, 23 that's a relative risk or a risk ratio of 24 1.21. So again, that is not meaningfully 25 elevated. And the 95 percent confidence Page 98 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 interval is .0.55 to 2.30, based on -- you 3 divide these by a hundred to get it back to 4 a risk ratio. 5 MR. FARNET: Thank you, Dr. Pyatt. 6 All right. That's all the questions we 7 have. 8 MR. WILLIAMS: Anybody else? 9 MR. RILEY: Yes. This is Jim 10 Riley. 11 (Whereupon, a Discussion was held off 12 the record.) 13 EXAMINATION 14 BY-MR.RILEY: 15 Q. Dr. Pyatt, you mentioned earlier a 16 supplemental declaration. Is that the 17 supplemental declaration that you authored in 18 response to a plaintiffs' motion? 19 A. Correct. 20 Q. And are the statements contained in 21 the supplemental declaration truthful, and do 22 they accurately express your views? 23 A. Yes, sir. 24 Q. I'd like that attached as an Exhibit 25 to the deposition, and that's all the Page 99 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 questions I have. Thank you, sir. 3 A. You're welcome. 4 (Whereupon, Exhibit-11 was marked.) 5 MR. WILLIAMS: Okay. 6 THE VIDEOGRAPHER: This concludes the 7 videotape deposition. We are off the record 8 at approximately 11:37. This is the end of 9 Tape No. 3 in the deposition of David Pyatt. 10 (Whereupon, The following proceedings 11 were not on the video record.) 12 MR. RILEY: I just want the record 13 to note that I advised Mr. Williams and also 14 Dr. Pyatt, who did not know, that Radiator 15 was a co-defendant in the Brown case. I 16 just didn't want counsel to be misled or the 17 doctor to be misled. 18 (Whereupon, a Discussion was held off 19 the record.) 20 THE DEPONENT: I'll read and sign. 21 (Whereupon, the deposition concluded 22 at 11:39 a.m., June 24, 2009.) 23 24 25 Page 100 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 REPORTER'S CERTIFICATE 3 STATE OF COLORADO) 4 COUNTY OF DENVER) 5 I, Janet Lee Priestley, do hereby 6 certify that I am a Registered Professional 7 Reporter and Notary Public within the State 8 of Colorado; that previous to the 9 commencement of the examination, the deponent 10 was duly sworn to testify to the truth. 11 I further certify that this 12 deposition was taken in shorthand by me at 13 the time and place herein set forth, that it 14 was thereafter reduced to typewritten form, 15 and that the foregoing constitutes a true and 16 correct transcript. 17 I further certify that I am not 18 related to, employed by, nor of counsel for 19 any of the parties or attorneys herein, nor 20 otherwise interested in the result of the 21 within action. 22 23 24 Janet Lee Priestley 25 Page 101 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 CAPTION 3 The Deposition of DAVID PYATT, taken 4 in the matter, on the date, and at the time 5 and place set out on the title page hereof. 6 It was requested that the deposition 7 be taken by the reporter and that same be 8 reduced to typewritten form. 9 It was agreed by and between counsel 10 and the parties that the Deponent will read 11 and sign the transcript of said deposition. 12 . 13 . 14 . 15 . 16 . 17 . 18 . 19 . 20 . 21 . 22 . 23 . 24 25 Page 102 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2. CERTIFICATE 3 STATE OF : 4 COUNTY/CITY OF : 5 Before me, this day, personally 6 appeared, DAVID PYATT, who, being duly sworn, 7 states that the foregoing transcript of 8 his/her Deposition, taken in the matter, on 9 the date, and at the time and place set out 10 on the title page hereof, constitutes a true 11 and accurate transcript of said deposition. 12 13 DAVID PYATT 14 . 15 SUBSCRIBED and SWORN to before me this 16 day of , 2009 in the 17 jurisdiction aforesaid. 18 19 My Commission Expires Notary Public 20 . 21 . 22 . 23 . 24 . 25 Page 103 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2. DEPOSITION ERRATA SHEET 3. 4 RE: Accurate Court Reporting, Inc. 5 Case Caption: JO ANN BISHOP, ET AL 6 VS. SHELL OIL CO., ET AL 7. 8 DEPONENT: DAVID PYATT 9 DEPOSITION DATE: June 24, 2009 10 . 11 To the Reporter: 12 I have read the entire transcript of my 13 Deposition taken in the captioned matter or the 14 same has been read to me. I request that the 15 following changes be entered upon the record for 16 the reasons indicated. I have signed my name 17 to the Errata Sheet and the appropriate 18 Certificate and authorize you to attach both to 19 the original transcript. 20 . 21 _________________________________________________ 22 _________________________________________________ 23 _________________________________________________ 24 _________________________________________________ 25 _________________________________________________ Page 104 DEPOSITION OF DAVID PYATT, JUNE 24, 2009 1 2 _________________________________________________ 3 _________________________________________________ 4 _________________________________________________ 5 _________________________________________________ 6 _________________________________________________ 7 _________________________________________________ 8 _________________________________________________ 9 _________________________________________________ 10 _________________________________________________ 11 _________________________________________________ 12 _________________________________________________ 13 _________________________________________________ 14 _________________________________________________ 15 _________________________________________________ 16 _________________________________________________ 17 _________________________________________________ 18 _________________________________________________ 19 _________________________________________________ 20 _________________________________________________ 21 _________________________________________________ 22 . 23 SIGNATURE:_______________________DATE:___________ 24 DAVID PYATT 25 Page 105