Document aBxZEM0XGn1VkBjQbBK34Xqgy
FILE NAME: Welding (WELD) DATE: 1996 DOC#: WELD028 DOCUMENT DESCRIPTION: Legal - Deposition of William J. Nicholson
JAN t 2 '996
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY
IN RE: ASBESTOS LITIGATION
MOORE TRIAL GROUP LIMITED TO: S. PRZYBYLSKI
ELAM TRIAL GROUP LIMITED TO V. AUGUST.
C .A. :C .A.
C .A . C .A.
NO . NO . NO . NO .
92C-11-009 92C-09-115 93C-08-250 94C-04-114
X
353 LEXINGTON AVENUE NEW YORK, NEW YORK 1001
Deposition of WILLIAM J. NICHOLSON, as a nonparty witness, taken by the defendants, pursuant to notice dated Novemb r 30, 1995, at the offices of Heidell, Pittoni, Murphy &Ba c h , P.C., 99 Park Avenue, New York, New York, on December 29, 1996 at 9:30 A.M., before Thomas R. Nichols, a registered professional reporter and notary public of the State of New York.
HENRY JACOBS
HJA
A S S O C I A T E S , INC.
(212)*61-8350
1
2
Appearances :
2
3
4
5
JACOBS & CRUMPLAR, P.A.
6
Attorneys for the Plaintiffs
800 Delaware Avenue
7
Wilmington, Delaware 19899
8
BY: ROBERT JACOBS, ESQ.,
of Counsel
9
10
11
12
DAVIES, MCFARLAND & CARROLL, P.C. Attorneys for Defendants Lincoln
Electric Company and Hobart Brothers
13
Company
One Gateway Center
14
Pittsburgh, Pennsylvania 15222-1416
15
BY: RALPH A. DAVIES, ESQ.,
of Counsel
16
17
18
SKADDEN, ARPS, SLATE, MEAGHER & FLOM, ESQS.
19
Attorneys for Defendant Metropolitan
20
Life 919 Third Avenue
New York, New York 10022
2 1
22
BY: MARC B. ROTHSCHILD, ESQ., of Counsel
23
24
25
o 0 o
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
3 1
2
3
4
\
5
IT IS HEREBY STIPULATED AND AGREED by
6
and among the attorneys for the respective
7
parties herein that filing, sealing and
8
certification be, and the same hereby are,
9
waived.
10
IT IS FURTHER STIPULATED AND AGREED
1 1
that all objections, except as to the form
12
of the question, shall be reserved to the
1 3
time of trial.
14-
IT IS FURTHER STIPULATED AND AGREED
15
that the within deposition may be signed
16
and sworn to before any officer authorized
1 7
to administer oaths w_t.h the same force and
18
effect as if signed and sworn to before the
19
court.
20
2 1
22
o 0 o
2 3
24
25
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
1
2
WILLIAM
J. N I C H O L S O N ,
3
residing at 4-02 Kenneth Avenue, Fairlawn,
4
New Jersey 07410, haying been first duly
5
sworn, was examined and testified as
6
follows:
7
EXAMINATION BY
8
MR. DAVIES:
9
Q
Please state your name for the record
10
A
Dr. William J. Nicholson.
11
Q
Good morning, Dr. Nicholson. My name
12
is Ralph Davies, and I have a few questions for
13
you this morning regarding a couple of cases that
14
are pending in Delaware.
15
Let me ask you first whether you are
16
represented by counsel at the deposition today.
17
A
I am being represented by Mr. Jacobs.
18
Q
When did you retain Mr. Jacobs to
19
represent you at this deposition?
20
A
I didn't retain him as such. I don't
21
quite understand your question. He was asking me
22
to participate --
23
Q
Let me try to make my question more
24
clear.
25
A
-- in this case or one of these cases
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
5
1
Nicholson
2
Q
Do you have an attorney that you have
3
retained to represent you at the deposition here
4
this morning?
\
5
A
In a specific way, no. As I
6
understand that term.
7
Q
As I understand it, Mr. Jacobs is
8
representing the plaintiffs in this case and not
9
you; is that correct?
10
A Yes .
11
Q
Did you meet with Mr. Jacobs before
12
the deposition this morning?
1 3
A Briefly.
14
Q Where was that?
15
A Downstairs.
16
Q Did you discuss thecases at issue
17
here ?
18
A
I mentioned a couple of my views to
19
him on the elevator going up.
20
Q
What were the general subjects that
2 1
you covered on the trip from ground zero to the .
22
7th floor?
23
A Exposures in differentcircumstances,
24
asbestos release in different circumstances and
25
mesothelioma in reports of epidemiological studies
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
6
1
Nicholson
2
of welders.
3
Q
What areas did you cover with respect
4
to asbestos release?
5
A
That in circumstances of embedded
6
fiber, sawing, sanding or manipulating can readily
7
release fibers.
8
Q
Was that the sum and substance of the
9
conversation that you had on that topic?
10
A On that topic, yes.
11
Q You are an experienceddeposition
12
giver, Doctor. Is that a fair statement?
13
A Yes.
14
Q
I don't propose to review any ground
15
rules with you since you have given a number of
16
depos itions .
17
I
just want to be sure that if I ask
18
question which is not clear to you that you will
19
tell me that the question is not clear so that I
20
can try to rephrase it. Fair enough?
2 1
A Yes .
22
Q Can you tell me approximately how many
23
times you have testified by way of deposition in
24
1995?
25
A It's approximately a dozen. Maybe a
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
\jlc-o^0-0'
7
z
n ^ ^ L L j c M c e a-- u^o/wtU-.
3
Q
Approximately how many times in 1995
4
have you testified at trial?
k
5
A
Three or four times.
6
Q
And I know you've testified in West
7
Virginia in 1995. Can you give me any other
8
jurisdictions where you have testified at trial?
9
A
In San Francisco in several cases by
10
depos ition.
1 1
Q
And deposition for use at trial.
12
A
Yes, and in trial in one circumstance
1 3
that I recall and perhaps a second. I believe.
14
I'm not sure, but perhaps a second in San
15
Franc isco.
16
I can -- no, I can't. Oh, yes, I can,
17
if we look -at the list that I have on that issue.
18
Q
Can you think of any other jurisdictions
19
where you have testified other than West Virginia
2 0
and California in 1995?
2 1
And I am talking about testifying at
2 2
trial. Please feel free to look at anything you
23
have .
24
A
Let me just review what I put together
25
a day ago in an attempt to be responsive to what I
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
8
1
Nicholson
2
have done.
3
Three trials in San Francisco and one
4
in Charleston.
5
Q Charleston, West Virginia.
6
A Yes.
7
Q
Can you tell me, please, Doctor, what
8
material you have reviewed in preparation for your
9
deposition today?
10
A I reviewed a number of articles that
11
were relating to welding area roughly, articles on
12
this list that are circled. I didn't read every
13
one, but I scanned them for issues that might be
14
of interest.
15
And I reviewed partial deposition
16
testimony of Mr. George Hudson, Stephen Hudson,
17
Stephen Przybylski, Vincent August and John
18
Protack, Thomas Eagar and Jack Peterson.
19
Q Is that the total of the materials
20
that you reviewed in particular for these
2 1
depositions?
22
A
Yes. I'm sorry. I scanned the early
23
part of the welding chapter on this IARC Monograph
24
which provided information that was of use in
25
terms of what was developed when and the different
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
9
1
Nicholson
2
types of welding operations.
3
Q
Would you give us, please, the precise
4
title of the book that you have in your hand?
i
5
A
"IARC Monographs on the Evaluation of
6
Carcinogenic Risks to Humans." The subheading
7
"Chromium, Nickel and Welding." It's Volume 49.
8
Q
Which pages in particular did you
9
review or scan?
10
A
I scanned from -- particularly from
11
446 -- 447. Then when I got to animal study at
12
476 I didn't do much more.
13
Q
I'm sorry. I missed the pages. Could
14
you give them to me again?
15
A
447 to 476. And then some of the
16
animal studies I did not review. I did look at
17
the case reports and epidemiological studies and
18
carcinogenicity that begins on page 489 and
19
continues through the summary of the chapter to
20
507 .
2 1
Q So it is 489 to 507?
22
A Yes .
2 3
Q What in particular, ifanything,
24
Doctor, did you find in those pages that was
25
germane to the issues in this case?
HENRY JACOBS ASSOCIATES, INC. (212 ) 66 1-8 350
10
1
Nicholson
2
A
Very little in terms of release of
3
fibers from welding rods. That asbestos therein
4
was mentioned, but the details of any measurements
5
of fiber release were not measured, which is what
6
I specifically was looking for.
7
But this was a quick review obviously.
8
There's vast numbers of articles summarized in
9
those few pages.
10
Q
Doctor, you were kind enough to hand
11
to me a list which consists of five pages titled,
12
quote, Welding Rods, unquote, Reference Materials,
13
which lists 57 publications of one variety or
14
another; is that correct?
15
A Yes.
16
Q Would you have any objection to our
17
making a copy of this and marking it as a
18
deposition exhibit?
19
A No.
20
MR. JACOBS: Off the record.
2 1
(Discussion off the record.)
22
Q
Let me just ask you a couple of
23
questions, Doctor, about what we will mark as
24
Nicholson Deposition Number 1.
25
Is this a document that you prepared?
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
11
1
Nicholson
2
A No .
3
Q Do you know who prepared this
document ?
5
A No.
6
Q How did you come into possession of
7
this document?
8
A
It was either sent to me by Mr. Jacobs
9
or Mr. Crumplar.
10
Q
When did you receive the document?
1 1
A Probably two to three months ago.
1 2
Q Have you read each of the items that
1 3
is mentioned on the document?
1 4
A
No .
1 5
Q
Is any of the writing or marking on
1 6
the document yours?
17
A
The marking about a number is mine.
18
The other writing in terms of comments or checks
19
or stars -- I'm sorry. I should say the --
20
MR. JACOBS: Off the record.
2 1
(Discussion off the record. )
22
Q
Doctor, we're making arrangements to
2 3
have Exhibit 1 photocopied so it will be a little
24
easier for us to talk about it. And while we're
25
waiting let me ask you a few other questions.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
12
1
Nicholson
2
As I understand it, you have a Ph.D.
3
in physics; is that correct?
4
A
Yes .
5
Q
Is it also correct that you do not
6
have a degree in geology?
7
A
That is correct.
8
Q Or mineralogy?
9
A
Correct.
10
Q
Or chemistry?
11
A
Correct.
12
Q Or metallurgy?
13
A
Yes .
14
Q
Or industrial hygiene?
15
A
That is correct.
16
Q
Do you have an engineering degree?
17
A
No .
18
Q
Do you have a degree in materials
19
sciences ?
20
A
No .
21
Q Are you certified in any specialty?
22
A
No. I haven't applied for such a
23
thing, nor found it necessary to do so for my
24
work ,
25
Q
You say you haven't applied for
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
13
1
Nicholson
2
in any area of specialization.
3
Can you tell me if there is any area
i
of specialization for which you could apply for
5
where you are qualified to do so?
6
A
I don't know. I haven't looked at
7
the -- at all.
8
Q
Fine. I just wanted to make sure that
9
I wasn't missing something.
10
Do you have any formal training in
11
epidemiology?
12
A
I have read books on epidemiology and
13
I've worked with some fairly noted epidemiologists
14
that were quite helpful in educating me in the
15
field.
16
Q
Do you consider yourself to be an
17
expert in the field of epidemiology?
18
A
I don't know how you would use that
19
term, so I don't use it. I feel I am
20
knowledgeable to do the studies, sufficiently
2 1
knowledgeable to have done the studies that I have
22
done in that field.
2 3
Q Do you have any degree in
2 4
epidemiology?
25
A No .
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
14
1
Nicholson
2
Q
I understand from looking at your
3
curriculum vitae that you are a professor of
4
community medicine at Mount Sinai; is that
5
correct?
6
A
Yes, that is the department in which I
7
am located.
8
Q
Can you tell me what is involved in
a
community medicine? I am not familiar with that
J
10
terminology.
1 1
A
It's a variety of activities. Some
12
deal with health services into the community as
13
such. We have a division that does that. I am in
14
a division of environmental and occupational
15
medicine, which conducts epidemiological studies
16
among working groups, looking at cancer risk or
17
other evidence of disease.
18
Also, people in that undertake studies
19
of the action of agents of concern in the
20
workplace or the environment through' molecular,
2 1
biological or other studies.
22
So it spans the gamut from social
23
scientists to molecular biologists and their
24
background.
25
Q
You are not a medical doctor; is that
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
15
1
Nicholson
2
correct?
3
A
That's correct.
*4
Q
I take it that in the department of
5
community medicine you don't actually see
6
patients, although there may be others who do; is
7
that right?
8
A
In some of our studies we would have
9
physicians would examine them. I would
10
participate in the studies and interview
1 1
1 2
Q
In addition to the studies that you
3 3
have discussed do you have any other
14
responsibilities as a professor of community
1 5
medic ine ?
16
A
I have assigned to me clerk --
17
students in a clerkship program that we have,
18
medical students, third-year medical students,
19
where we supervise a research project for six
2 0
weeks .
2 1
I teach in the occupational medicine
22
course particular topics, asbestos-re1ated topics
23
largely, for residents at -- that come to us for
24
two to three years, and may be involved with some
25
interns as well. But largely my activities are
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
Nicholson
between those two, the residents and the medical
students.
Q
Let me explore a little bit the two
phases that you have discussed.
As I understand it, you have some
students who are assigned to you on a clerkship
basis; is that correct?
A Yes .
Q
And that's a six-week period?
A Yes .
Q And how often does this occur?
A
It may be one or two students a year.
This year it happens so far that I have not yet
had one and last year I had I guess one or two.
don't remember.
Q
Just so I'm clear, in 1995 there have
been no clerks assigned to you; is that correct?
A In the '95-'96 academic year. I did
have someone earlier in '95 to my recollection.
Q Just so I understand what you're
saying, the academic year runs from September --
you tell me. When does it run?
A Roughly September through June.
Q
So at least from September up until
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
17
1
Nicholson
2
December 29, 1995, you have had no clerks assigned
3
to you to participate in this type of program.
4
A Yes .
4
5
Q
Do you know of any that are assigned
6
for the balance of the 1996 academic year?
7
A
As of now, n o .
8
Q
You say you have had one or two in the
9
'94-'95 academic year; is that correct?
10
A
Yes .
1 1
Q
Could you give me their names, please?
1 2
A
No. I don't know -- remember their
1 3
names.
1 4
Q During which six-week period did the
1 5
clerkship program run?
16
A
I don't remember the time.
17
Q
Would there be records at Houni Sinai
18
that would give us that information?
19
A I would imagine so.
20
Q
And also the names of the clerks who
2 1
were involved?
2 2
A Yes .
2 3
Q Can you tell me, please, what exactly
24
you did with the clerks that you had in the
25
1994_'95 academic year?
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
18
1
Nicholson
2
A
They would propose a project and I
3
would be available in assisting them as to
4
literature to review and how they might proceed.
5
Q
Are these medical students that we're
6
talking about?
7
A
Yes, they are third-year medical
8
students.
9
Q
Do you recall the types of projects
10
that were proposed to you during the 1994-'95
11
academic year?
12
MR. JACOBS: Object to the form of the
13
question.
14
A
One was a literature review and a
15
discussion of possible research in a particular
16
area .
17
Q
Did -that; area have anything to do with
18
asbestos ?
19
A
Not to my recollection.
20
Q
Do you recall what it had to do with?
2 1
A At the moment I don't.
22
Q Is that the only project that you can
2 3
recall for the clerkship program in that year?
24
A Yes.
25
Q Let me inquire about the occupational
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
19
1
Nicholson
2
medicine course.
3
Could you give me a little more detail
4
on exactly what teaching you do in that course?
\
5
A
I would talk about exposure
6
measurements and some past research that may have
7
been done. And it depends upon what others have
8
taught and the decision of the course
9
administrator as to what topic they would wish me
10
to speak o n .
11
Q
What is the official title of the
12
course ?
13
A
I'm sorry. I don't know that title.
1 4
Q
Is there a principal professor or
15
doctor or lecturer that's involved in teaching the
16
course ?
17
A
Some of the younger faculty members
18
are involved in it. There are several that might
19
come to m e .
20
Q
I take it from what you have said that
2 1
you would not be considered the principal teacher
22
in the course.
2 3
A
Oh, absolutely. That's correct. I am
24
an enlisted participant as needed, and thus the
25
details are something I don't have to bother with.
HENRY JACOBS ASSOCIATES, INC. (212 ) 661-8350
20
1
Nicholson
2
Q
In the 1995-'96 academic year have you
3
lectured or taught in this particular course?
4
A I believe so.
5
Q Can you tell me how many times you
6
have lectured?
7
A It probably was one time.
8
Q
Do you recall when that was?
9
A
No. Not the time. I believe they
10
were wanting some information on exposure
11
measurements relating to asbestos in different
12
circumstances.
13
Q
Did you lecture to a group of medical
14
residents?
15
A
Yes, and others that may have been
16
interested.
17
Q
Can you approximate for me the si-ze of
18
the group to whom you gave the lecture?
19
A
Typically it's a dozen or so.
20
Q
Was this in a formal classroom
2 1
setting, a lecture hall or study hall of some
22
type ?
23
A It's an informal setting.
24
Q How long did the lecture last?
25
A About an hour.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
2 1
1
Nicholson
2
Q
Is it fair to characterize it as a
3
lecture? I don't mean to make it something that
4
it isn't. I would like you to describe it for me,
I
5
please.
6
A
It's a discussion. So there are some
7
aspects of the lecturing that would perhaps
8
produce a series of sheets with information on it
9
or in some cases use a blackboard and in some
10
cases we would just talk about things of interest.
11
Q On the one occasion when you had done
12
that during the current academic year were there
13
any documents or papers that were produced?
14
A Probably. At the moment I am
15
uncertain because -- and I am even uncertain if it
16
was this academic year or earlier in the
17
summertime or in the spring. So let me not be
18
specific about the academic year, but be specific
19
about the calendar year that I did this.
20
And my recollection was that I did
21
produce a document that would be hopefully useful
22
for them to retain and not require them to copy a
23
lot of things off the blackboard.
24
Q What was the general subject matter of
25
the document that you produced?
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
22
1
Nicholson
2
A
It would be on exposure circumstances
3
and asbestos risk assessment. That's what I would
4
particularly emphasize, the relationship of
5
disease to exposure.
6
Q
Can you give me the name of anyone who
7
participated in this informal lecture, if I can
8
call it that, besides yourself?
9
A As a faculty member?
10
Q Or as a student.
11
A
Phyllis Marino was to my recollection
12
a person who had asked me to do this.
13
Q
Is she the course administrator that
14
you mentioned before?
15
A
She would have been one of them.
16
Q Was she actually a participant?
17
A Probably.
18
Q Does she have a title?
19
A
If she does I don't know what it is.
20
I really don't bother with the kind of things
2 1
you're asking about.
22
Q
I understand. Is she employed at
23
Mount Sinai?
24
A Yes .
25
Q Do you know what her address is?
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
1
23 Nicholson
2
A
At Sinai it would be environmental --
3
Environmental and Occupational Medicine, Box 1057.
\4
Q
Have you described for me, Doctor, the
5
sum and substance of the lecturing that you did
6
during calendar year 1995?
7
A
To my best recollection, yes.
8
Q
How about in 1994, did you participate
9
in this same kind of program?
1 0
A
I would have participated and I don't
1 1
remember any of the details of it.
1 2
Q
Are there any other responsibilities
13
that you have as a professor of community medicine
14
at Mount Sinai beyond what you have already told
15
us about?
1 6
A
To undertake research and obtain funds
1 7
for doing so. Through soliciting grant funds.
1 8
Q
Are you presently working under any
19
research funds or grants?
20
A
I have a grant -- I have had one for
2 1
several years -- to conduct a study of radon
22
effects in northern New Jersey.
23
Q
Are you working under any other grants
24
or research funds at the present time?
25
A
Some departmental funds, some of which
HENRY JACOBS ASSOCIATES, INC. (212 ) 661-8350
2 4
1
Nicholson
2
have come from insulation worker unions, and the
3
work involves looking at, analyzing data that were
4
on mortality in relationship to prior medical
5
surveys of these workers in the past where we can
6
obtain information on exposure.
7
And the health status and the particular
8
activity now is looking at the subsequent mortality
9
in relationship to the various factors that were
10
determined in examination.
11
Q
I take it this is an ongoing study?
12
A
It still is now. The mortality is
13
ongoing. We have an ongoing mortality study of
14
two groups of asbestos workers.
15
Q
Are any of these asbestos workers
16
presently employed, if you know?
17
A
I am sure many of them are.
18
Q
Are they out of particular unions?
19
A
One is -- the international membership
20
consists of the membership of the national union
2 1
in 1967, and it was a group of 17,800 that was
22
initially followed by Irving Selikoff for
23
mortality, and that study continues.
24
The other group that I mentioned in
25
which examinations were undertaken consists of
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
1
25 Nicholson
2
2,907 insulators in different locals across the
3
United States. Hopefully all the locals would
4%
have been represented of the international, but
5
perhaps not.
6
Q
Can you tell me precisely what it is
7
that you are presently doing with respect to
8
follow-up of the Selikoff group? How do you go
9
about that is what I am interested in.
10
A
The union cooperates with us in that
11
when they get a death certificate in both retired
12
and working -- workers, when deceased, relatives
13
rapidly send in information because there is a
14
death benefit. So the union apprises us of that
15
and the location of the death, and we obtain death
16
certificates and write to individuals that may
1 7
have treated these workers prior to death to
18
obtain information that would perhaps relate to
19
the cause of death.
20
So the mechanism for this follow-up
2 1
which now is ongoing for thirty years has been the
22
same over time.
23
Q
How many reports did you receive in
24
1 9 9 5 ?
25
A
Oh, it would be something over five
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
26
1
Nicholson
2
hundred, less than a thousand.
3
Q
I assume you have the paperwork on all
4
of those reports at your office or --
5
A
Not at my office. There's an office
6
that is called the archives that maintains them.
7
There are a group of people.
8
Q
What do you do when you receive this
9
information from a physician or a family?
10
MR. JACOBS: Objection as to form.
11
A
Some of it is just kept available.
12
When one wishes to do an analysis such as is being
13
done now on mortality in relation to the factors,
14
you bring all the files of everybody -- you review
15
all of the files of everyone, and to assure that
16
you have information, ummm, that's entered into a
17
computer. Much ot the information initially is
18
entered into the computer in terms of vital
19
statistics of the person, as some of the detailed
20
medical material that would be received, would be
2 1
retained for later use.
22
So depending upon the particular
23
factor of interest, clinical factor of interest,
24
it may be entered in due time at the time an
25
analysis is done as opposed to the time that we
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
27
1
Nicholson
2
receive it. But when it's received, the basic
3
data would go into a computer and is similarly
4
retained in a file drawer.
s
5
Q
When is the last time anything was
6
published that pertained to this ongoing study
7
that you just described?
8
MR. JACOBS: Objection to the form of
9
the question. Off the record.
1 0
(Discussion off the record.)
1 1
Q We have been discussing the Selikoff
12
study, have we not?
1 3
A Both of them would have been done by
1 4
Selikoff. He organized the clinical examinations
1 5
of the 2,907 -- of which 2,907 workers attended
16
and he initiated the mortality study of the
17
national membership.
18
Q
Is the follow-up data that you or your
19
group has been receiving the same for both sets of
20
workers ?
2 1
A
The follow-up group in terms of what :
22
is sent to us at the time of death of a worker is.
23
We have much more available on the group for which
24
examinations were undertaken. And depending on
25
the circumstances, one may write letters to
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
28
1
Nicholson
2
workers to ask further information. We haven't
3
done that recently.
4
Q
When is the last time that any study
5
was published?
6
A
There's an extensive review of the
7
17,800, mortality through twenty years, published
8
in 1991.
9
Q
Is that the last time that anything
10
was published regarding either of these groups ?
11
A
Of a -- I believe so.
12
Q
Let me ask you about the second group
13
of workers where examinations were conducted.
14
Have serial exams been conducted on
15
those people?
16
A
No .
17
Q
So it. was a one-time deal with respect
18
to each of those workers.
19
A
Yes .
20
Q
Do you consider yourself to be an
21
expert in fracture mechanics, Doctor?
22
A
No .
2 3
Q
Doctor, do you read any welding
24
publications on a regular basis?
25
A
No, Ido not.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
1
29 Nicholson
2
Q
Do you read any welding publications
3
at al1?
4
A
I have read some material relating to
?
5
welding which I have already told you about with
6
regard to this case.
7
Q
Would those materials be essentially
8
those which have to do with alleged health effects
9
from welding rather than welding itself?
10
A
Oh, I read this book, the IARC
1 1
monograph, which dealt with welding itself.
12
That's what I was particularly interested in.
13
Because the other materials were largely health
1 4
events. Some of which I had from the material I
15
would collect over time, but much of them I
16
obtained from the list that you have.
17
Q
Doctor, I want to be clear on what you
18
did with the IARC monograph. Did you scan it or
19
did you read it?
20
A
I read it fairly -- well, I did more
2 1
than scan the first sections. After the
22
discussions of MIGs and MAGs and MMEs and that, I
2 3
then scanned it with respect to the health
24
effects, because of what was reported here was
similar to the context of that which was available
HENRY JACOBS ASSOCIATES, INC. (212 ) 661- 8350
30
1
Nicholson
2
from the articles that I had collected.
3
Q
Doctor, you have been kind enough to
4
hand me the IARC Monographs book, Volume 49, to
5
which you referred earlier.
6
And as I glance at the first section I
7
see that starting on page 447 there is a chapter
8
that is titled "Historical Perspectives and
9
Process Description," and that chapter runs up to
10
and including a part of page 455.
11
Is this the first information that you
12
have reviewed regarding welding processes as such?
13
A
No, there are some in the other
14
articles that I obtained. But that was the most
15
organized, in that it covered a variety of present
16
and past activities and had a breadth of
1 7
descriptions relating to a variety of welding,
18
types of welding processes.
19
Q
When was it that you reviewed this
20
particular part of the monograph?
2 1
A
Mostly yesterday.
22
Q That would be December 28, 1995?
23
A
Yes .
24
Q If I understood youcorrectly, you
25
indicate that some of the materials outlined on
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
1
31 Nicholson
2
what we are now going to mark as Nicholson
3
Deposition Exhibit Number 1 --
4 i
MR. JACOBS: Would you mark the copy
5
rather than the original.
6
MR. DAVIES: Sure.
7
Q
-- discuss welding processes; is that
8
right?
9
A
Some welding descriptions exist in
J 0
some of those articles.
1 1
MR. DAVIES: Let's mark a copy of this
1 2
as Deposition Exhibit 1.
1 3
(Document entitled "'Welding Rods'
14
Reference Materials" marked Nicholson
15
Exhibit 1 for identification, this date.)
16
Q
Doctor, let me hand back to you the
17
original of Deposition Exhibit 1 and ask you if
18
you could point to which of the 57 publications
1 9
listed there discuss welding processes or types of
20
welding.
2 1
MR. JACOBS: Object to the form of the
22
que stio n .
2 3
A
I would have to look at the articles.
24
I don't remember article by article.
25
Q
Is it fair to say then that the best
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
32
1
Nicholson
2
you can do is to say that it is your general
3
recollection that some of these discuss welding
4
processes and types of welding, but you can't
5
point to a particular article?
6
A
Well, there's some that particularly
7
describe the process early on. There's a Lancet
8
article by Doig, did so.
9
Q
Would you give us the number of that
10
one ?
11
A Number 20.
12
Q
OK. Any others that spring to mind?
13
A
Well, here's Investigation of Health
14
Hazards in Inert-Gas Tungsten-Arc Welding Shop. I
15
believe there was some discussion of that process.
16
Q Again, Doctor, if you would refer to
17
them by number, that would be helpful.
18
A
15. Again, I am not -- if you want me
19
to go through them article by article, I will do
20
that. But I don't remember of those that I have
2 1
looked at the details -- of which give specific
22
details. Several did, but others did not.
23
Q
Let me ask you this, Doctor, as long
24
as we have Exhibit 1 in front of us.
25
Which of the 57 articles listed on
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
33
1
Nicholson
2
this document have you read?
3
A
In their entirety? At some time or
4
another? I would have read the number 12,
5
"Shipyards During World War II." I read Doig.
6
Q
Is that number 20?
7
A
Number 20, because of what it had in
8
it .
9
I -- well, I read number 3. I read
1 0
number 9. I had that article for some time and I
11
have gone through it. And I looked again at it.
1 2
Others -- at one time I have read 45.
1 3
And I would have to look at the articles to be
14
able to further be sure.
15
Q
Do you have all 57 of these articles?
16
A
No, I do not.
17
Q
You indicated that the ones you just
18
mentioned you had read in toto. Are there any
1 9
others on this document that you may have read
20
parts of that you can identify for me?
2 1
A
Yes.
22
Q
Which would those be?
23
A
The majority of the ones that are
24
circled I would have looked at to see if there was
25
information particularly relating to exposure
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
34
1
Nicholson
2
factors. And some health outcomes of interest
3
would have been noted in the particular articles I
4
would have looked at.
5
Q
Are you telling us, Doctor, that every
6
article that is circled on this document has been
7
read by you at least in part?
8
A
I have looked at -- I have read some
9
of -- I believe I probably read something in part
10
of virtually all. There may be a couple of the
11
industrial, early industrial hygiene articles I.
12
would not have done very much with.
13
Q I started to ask you --
14
A Such as I didn't do too much with
15
Kleinfeld number 29, Welder's Siderosis.
16
Or his inert gas -- sorry. Well, and
17
perhaps others.
18
Q
I started to ask you before, Doctor,
19
which of the writings on this original document
20
are yours.
2 1
A
The circles, the bars near the
22
numbers, an X with two lines by a number, if it
23
has more than two lines, four lines, for example,
24
somebody else put it on.
25
There's an article here, lead article
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
35
1
Nicholson
2
on asbestos exposure noted at the top, and that
3
identified such articles. That's somebody else's
4
writing.
\
5
Q
Just so I am clear, at the very top of
6
page 1 there is an asterisk of some kind and it
7
says: "Key early article on asbestos exposure
8
from rod coatings."
9
That is not yours; is that correct?
1 0
A
That's correct.
11
Q
May I see the original for just a
1 2
second, please?
3 3
There are a number of these articles
14
which are highlighted in yellow. Is that your
15
highlighting?
1 6
A Yes .
1 7
Q Since I'mgoing to letyou keep the
18
original and I will have a copy, let me indicate
19
for the record that the articles which are
20
highlighted in yellow -- you can check this,
2 1
Doctor, if you like -- are number 1, number 11,
2 2
number 19, number 24, number 28, number 29, and
23
that's it, correct?
24
A Correct.
25
Q What is thesignificance of the yellow
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
36
1
Nicholson
2
highlighting that you did?
3
A
On number 1 and number 11 it was to
4
get two articles that were not obtained in the
5
first go-around.
6
Q
I'm sorry, Doctor, that isn't clear to
7
me. What do you mean by getting articles that
8
weren't obtained in the first go-around?
9
A
I searched in our library for the
10
articles that were listed here, in one of two
11
libraries. The articles would be those that were
12
in various journals.
13
Q
Did you not have 1 and 11?
14
A
They were missed in the first, ummm,
15
search. I inadvertently did not circle them. I
16
mean, number 11 I knew was kind of a popular
17
journal, and I didn't circle it for that reason.
18
But then, since I was going back, I did circle it
19
to get what --
20
Q
Have you subsequently obtained
21
articles 1 and 11?
22
A Yes .
23
Q How about the other ones that are in
24
yellow? What's the significance of that?
25
A Number 19 was highlighted because I
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
37
1
Nicholson
2
did get it and it had this asterisk on it, so I
3
was noting that as a -- to be sure to read it.
1
Two others with asterisks, number 24 --
5
I'm sorry. I misspoke. So disregard what I said
6
about number 19.
7
Number 19 and number 24 were two
8
asterisked articles that, if available, I thought
9
it would be appropriate to obtain. They were only
10
of a few pages, and I called Mr. Jacobs to ask if
1 1
he had these articles, because Annals of
12
Occupational Hygiene in 1964 was not available to
1 3
me otherwise, nor was The Welding Encyclopedia
1 4
readily available.
15
And I called and asked if he could fax
16
these papers. He did not have the papers, so the
17
highlighting in 19 and 24 was simply to note what
18
I was going to ask for in a phone conversation.
19
Q
Have you subsequently obtained and
20
read those pages?
2 1
A No, I have not,
22
Q
Any others that are highlighted and
2 3
would you give us the significance of the
24
highlighting?
25
A Number 29 was inadvertently wrong
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
38
1
Nicholson
2
highlighting. I had no reason I would want -- I
3
intended to highlight number 28, which I
4
subsequently did.
5
The Kleinfeld article, which was a
6
listing of a journal in which an article was,
7
there was no identification of the journal and it
8
was, if I later obtained information or if I had
9
the time to go through some search process,
10
obtained, I have not had that time, nor have I
11
noted that article in the bibliography, and thus I
12
do not have number 28. But it was a potentially
13
obtainable article, and that's why it was
14
highlighted.
15
Q
So you. have not read 28 either,
16
correct?
17
A That's correct.
1 8
Q Are there any others that are
19
highlighted that we have not discussed?
20
A No.
2 1
MR. DAVIES: Off the record.
22
(A recess was taken.)
23
Q Doctor, there are a number of other
24
markings on the original of Deposition Exhibit
25
number 1. I want to be sure I understand what
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
39
1
Nicholson
2
those are.
3
For example, there are a number of
4
articles which are circled in green pen, correct?
5
Green ink?
6
A
I think every one that is circled is
7
circled in green with this exception. I'm sorry.
8
Those that are not x'd, the remainder do have a
9
circle in green. It has sometimes red and it has
10
sometimes black.
1 1
Q
Is there any particular significance
12
to the green versus the black or the red?
1 3
A
That I had the article in hand. The
14
red circle was to see see if this is in the main
15
1ibrary.
16
Q And correct me if I am wrong, but
17
articles 3, 4 and 5 are circled in red?
18
A
Yes .
19
Q And that was to see if they were in
20
the main library, correct?
2 1
A
Yes .
22
Q Was number 3?
2 3
A
Yes .
24
Q
And you obtained that?
25
A
Yes .
HENRY JACOBS ASSOCIATES, INC. (2 12 ) 66 1-8350
40
1
Nicholson
2
Q And read it.
3
A Not completely, but fairly
4
extensively.
5
Q What about 4 and 5?
6
A That was not available.
7
Q
So --
8
A
This -- ironically our library had a
9
gap at 35 and the main library didn't start till
10
thirty something else, so it was available in
11
neither library.
12
Q
So you haven't read 4 or 5 .
1 3
A
That's correct.
14
Q
Is number 12 circled in red?
15
A
Yes .
16
Q
Were you able to obtain that one?
17
A
T e s . I had that article But I
18
didn't want to look for it, so I got it from
19
main library. So now I have multiple copies,
20
because 1 have it as "Shipyard."
21
MR. JACOBS: Objection. Only because
22
there are many others that are circled in
23
red under other circles. If you really
24
want to look closely, you will see them.
25
Q
Why don't you go down the entire list,
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
4 1
1
Nicholson
2
Doctor, and tell us every one that is circled in
3
red, whether it has been circled over by something
4
else or not.
i
5
A
Well, the ones that have been x'ed
6
have not been circled over by something else.
7
Because I didn't obtain those that had a red,
8
ummm, two-stroke X on it, as I indicated earlier.
9
Q
I wonder if you could read for me,
10
please, the numbers of the articles that at any
1 1
time were circled in red.
1 2
A
3, 4, 5, 6, 7, 8, 12, 15, 17, 19, 20,
1 3
21, 22, 26, 33, 35, 41, 45, 46, 47, 49, 51, 53,
14
56 .
15
Q Now, of those which were circled in
16
red, would you read the numbers of the articles
17
which you have not obtained and have not read?
18
A 4, 5, 17, 19, 21, 26, 35, 49, 51, 56.
19
Q
Article 57 is an add-on to the list;
20
is that correct?
2 1
A Yes .
22
Q Is thatyour writing?
23
A No .
2 4
Q Do you know whose writing it is?
2 5
A No. I assume it probably was someone
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
42
1
Nicholson
2
in Mr. Jacobs's office, but I don't know.
3
Q
There are a number of the articles
4
that have slashes to the left of them. What is
5
the significance of those?
6
A
That I got it from the main library.
7
I was ticking off the circles as I picked up the
8
books. So I wanted -- someone was xeroxing for me
9
and I was making multiple trips, so I wanted to
10
make sure I had an indication of the status of
11
this search.
12
Q
Is it fair to say then that you have
13
copies of every article that has a slash beside
14
it?
15
A Yes .
16
Q And some of those slashes are in red,
17
some are in green, some are in black, correct?
18
A That's total happenstance.
19
Q No significance to that whatsoever.
20
A None whatsoever.
2 1
Q
May I just take a last look at the
22
original?
23
Thank you, Doctor.
24
Still referring to the 57 articles on
25
that list, Doctor, of those which you have had an
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
4 3
1
Nicholson
2
opportunity to read in whole or in part, can you
3
name for me the articles that contain any
4
discussion regarding the release of asbestos from
5
welding rods?
6
Just so we're clear, I am not talking
7
about health effects now.
8
A I understand.
9
Q I am talking about the mechanical
10
release of asbestos from welding rods.
1 1
A
Only one could -- now it didn't talk
12
about the release. It talks about the
13
circumstances of asbestos use. But I don't recall
1 4
it speaking directly as to fiber released from the
1 5
rod or its enwrapment.
1 6
Thus, of those that I have looked at,
17
I did not see data on fiber release per se from
18
we Id ing rods .
19
Q
Are you a member of the American
20
Welding Society, Doctor?
2 1
A No .
22
Q Do you know what the American Welding
2 3
Society is?
24
A No, I don't directly. I could hazard
25
a guess, but that's all it would be.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
44
1
Nicholson
2
Q
Are you aware of the names of the
3
plaintiffs in whose cases this deposition is being
4
taken today?
5
A
One of them is, I believe,
6
Mr. Hudson and his wife, which is listed in one
7
deposition. I am not exactly clear on who is and
8
who is not.
9
I remember there being two individuals
10
that were mentioned in an.early communication, and
11
whether this deposition refers to either one or
12
both I could not tell you at this time. We have
13
not discussed extensively the plaintiffs per se.
14
Q When were you retained toconsult in
15
these cases, Doctor?
16
A I was sent aletterprobably two to
17
three months ago. If I can give you a better --
18
'95 -- well, I responded. It was late September.
19
Q 1995?
20
A 1995.
21
Q
Do you have the transmittal letter
22
with you?
23
A
I don't believe so. Let me look. It
24
was initially to review material which included
25
some of these depositions and to assist in
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
45
1
Nicholson
2
preparation of an affidavit which was developed
3
and which I signed sometime after the 22nd of
4
September.
i
5
But I don't have a -- I don't have
6
with me any correspondence on that.
7
Q
Were you given at any time any type of
8
case summary regarding the gentlemen whose cases
9
are at issue here?
10
A
No, I was made aware that my role
11
would not be to deal with their health effects per
12
se, but to deal with the issue of the potential
1 3
for fiber release from the coatings about asbestos
14
rods and wires.
1 5
Q
Have you reviewed any medical records
16
that pertain to either Mr. Przybylski or Mr. August?
17
A No.
18
Q Do you have any intention of doing
1 9
that prior to the trial of this case?
20
A
At this time I do not.
2 1
Q
Do you expect to be called as a
2 2
witness at the trial of the Przybylski case in
2 3
January 1996?
24
A I have not discussed that with
25
Mr. Jacobs.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
46
1
Nicholson
2
Q As I understand it --
3
A Specifically. I told you that I would
4
be, at his wish, available to make comments
5
relating to my views on fiber release.
6
Q
As I understand it, the original
7
communication with you asked you to review parts
8
of certain depositions and to prepare an
9
affidavit; is that correct?
10
A That's correct.
11
Q And that's what you have done.
12
A Yes.
13
Q Do you know whether or not
14
Mr. Przybylski was a welder?
15
A I believe so.
16
Q Do you know anything about his welding
17
history?
18
A
Well, let me get what I -- he was
19
employed in various positions in the refinery from
20
'39 to '78, a combination welder from '39 to
2 1
approximately '66, performed electric arc welding
22
on numerous occasions with his brother Stephen
23
Przybylski.
24
And I am not quite sure which Przybylski,
25
whether it's Edward or Stephen at this point, who
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
4 7
1
Nicholson
2
is the plaintiff. So I am reading Mr. Edward
3
Przybylski's deposition, which goes on to describe
4
other work that he and his brother undertook and
5
issues with respect to the use of coated rods and
6
the crumbling from the rods of material.
7
And you, I am sure, have the
8
affidavit. So I am providing you with information
9
you already have. If you want me to read it --
1 0
Q
What I want --
1 1
A
-- into the record I will, but T don't
12
think it's productive.
1 3
Q
What I want to be sure of is the
14
source of your information. And as I understand
15
it, anything that you know about Mr. Przybylski's
16
welding history or the welding environment in
17
which he worked comes from the affidavits or
18
depositions which you have already outlined for
1 9
us .
20
A
That's correct. It's only from the
2 1
selections of depositions and affidavits.
2 2
Q
What about Mr. Vincent August? Do you
2 3
know anything about whether he was a welder?
24
A
Yes, he was. He describes work as a
25
welder in Pusey and Jones shipyard during World
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
48
1
Nicholson
2
War II.
3
Q
Again, Doctor, is it fair to say that
4
anything that you know about his welding history
5
or the welding environments in which he worked
6
comes from those same affidavits and depositions
7
which you have already mentioned?
8
A Yes .
9
MR. JACOBS: Pusey is P-u-s-e-y.
10
Q
Doctor, do you know if any product
11
manufactured by the Lincoln Electric Company ever
12
contained asbestos?
13
A It is my understanding that the
14
welding rod, ummm, something Lincoln, something 5,
15
which is a category 6010, did. I have been told
16
that. I have read that in depositions that I
17
have .
18
Q
Again, all I want to know is the
19
source of your information, Doctor. And is it
20
accurate to say that the source of your
2 1
information on that subject is the affidavits or
22
portions of deposition testimony to which you have
2 3
already alluded?
24
A
Largely so. It was also mentioned by
25
M r . Jacobs to m e .
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
4 9
1
Nicholson
2
Q In writing?
3
A No. In a phone conversation.
4
Q
What did Mr. Jacobs tell you in that
\
5
phone conversation?
6
A
He indicated that it was -- that was
7
an accepted fact, that a Lincoln product, maybe
8
multiple Lincoln products, had asbestos in the
9
coating.
10
The number 5 designation was mentioned
11
in deposition several times. In fact, in Mr., I
12
believe Mr. Eagar's deposition he is describing
1 3
quantitation of the amounts -- I believe it was
1 4
his deposition -- of asbestos in different
15
products .
1 6
There's a possibility it was Peterson,
17
but it was one of those two, discussed that issue
18
as well.
1 9
Q
Would you tell me again which issue it
20
is you believe either Dr. Peterson or Dr. Eagar
2 1
discussed?
22
A
He is now talking about Fleet Weld 10.
2 3
This is Thomas Eagar.
24
It indicates -- I am just indicating.
25
MR. JACOBS: Just do the pages.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
50
1
Nicholson
2
A
Page 144, question, I realize that --
3
(reading) so Fleet Weld 5 would be a higher
4
asbestos.
5
6010 in content Fleet would be a
6
higher asbestos content.
7
6010 rods.
8
Right.
9
And he is making a comparison with
10
Fleet 10, Fleet Weld 10. So specifically it's
11
discussed that Fleet weld 5 indeed has asbestos in
12
a particular period of time.
1 3
Q And you're reading from page 144 of
14
Dr. Eagar's deposition?
15
A Yes.
16
Q Do you know if any product
17
manufactured by Hobart Brothers Company ever
18
contained asbestos?
19
A Hobart?
20
Q Hobart, yes, sir.
2 1
A I don't recall seeing Hobart inwhat I
22
have read, but I may have missed it. But I don't
2 3
know that.
24
Q Do you know if any product
25
manufactured by Westinghouse Electric ever
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
51
1
Nicholson
2
contained asbestos?
3
A
Not specifically. Unless --
t
apparently the 6010 item does, did have it
5
generally speaking, and to the extent that that
6
was made it would be possible. I certainly would
7
imagine a similarity of materials.
8
Q
Do you have an understanding, Doctor,
9
what the designation 6010 means?
10
A Not specifically.
1 1
Q
Can we agree, Doctor, that you not an
12
expert in welding processes?
1 3
A Yes .
1 4
Q Have you ever welded?
15
A No .
16
Q I assume --
17
A
Yes, I might have in some little tiny
18
physics shop, making a little thing, but I can't
1 9
be sure .
20
Q
Do you recall what process you used if
2 1
you welded?
22
A Not at all. I just remember having to
2 3
make things and having to seal them, and whether --
24
it would largely be soldering, but there's the
25
possibility I would have spot welded something.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
52
1
Nicholson
2
An end wire to something is what I am thinking of,
3
but it's nothing like we're talking about.
4
Q
When would that have occurred, Doctor?
5
A
It would have been in the 1950s to
6
1960s. In the 1950s, period.
7
Q
I assume you never taught welding?
8
A Absolutely not.
9
Q
You have never published any welding
10
articles?
1 1
A Absolutely not.
12
Q Have you ever seen welding rodsmade?
13
A No.
14
Q Do you have anyunderstanding of the
15
process by which they are made?
16
A
I saw it described briefly, I guess in
17
Mr. Peterson's deposition, indicating that they
18
mix the coating material in a -- he described it
19
as a -- well, it's a mixture and it's extruded
20
around a rod. I don't know that other than this
2 1
rod or wire comes out of the extrusion machine
22
with the appropriate thickness of coating about.
2 3
That's my interpretation of what he
24
was describing. He, Mr. Peterson, just walked
25
past the process. So his description is very
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
53
1
Nicholson
2
limited.
3
Q
Would it be fair to say, Doctor, that
?
any information you have regarding the manufacturing
5
process of welding rods comes from your review of
6
Dr. Peterson's deposition?
7
A Yes .
8
Q
Do you know what is meant by the use
9
of the word "flux" in the context of welding rods?
10
A I think I do.
1 1
Q Would you tell me,please?
12
A It's a material that enhances the --
1 3
that will melt under the high temperature of the
14
arc or welding process and will enhance the
15
reconstitution of a molten metal with the host
16
metal that is being joined together. I interpret
17
it enhances flow and it just makes the process go
1 8
very smoothly, whereas without it problems
1 9
develop.
20
And the descriptions of the -- of that
2 1
is in various places. But I did not make it -- I
22
did not make a point of understanding the welding
2 3
process in detail.
24
Q
Can we agree that you are not an
25
expert on welding fluxes?
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
54
1
Nicholson
2
A Absolutely.
3
Q
Speaking of the heat of the welding
4
arc, Doctor, can we agree that asbestos is
5
destroyed or decomposed by the heat of the welding
6
arc ?
7
A By that temperature at that site, yes.
8
Q What is your understanding, Doctor, of
9
the time period when welding rods contained
10
asbestos ?
11
A Well, they contained itin one form or
12
another, sometimes simply as a wrapping in the
13
thirties. That's described in the literature.
14
There's discussion as to its presence
15
in welding rods into the seventies, and it's at
16
that point, I guess because of concern with
17
asbestos, it was largely removed to my
18
understanding.
19
Q So just so I --
20
A Perhaps -- I am notbeing specific
2 1
with respect to the seventies, but it was my
22
understanding that it was largely gone by the end
23
of the seventies. By some comments in passing in
24
some of the depositions I read.
25
Q
Do you have an understanding as to
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
55
1
Nicholson
2
whether all welding rods contained asbestos at one
3
time ?
4
A
I don't have an understanding that all
?
5
did .
6
Q
I take it from that that it is your
7
understanding that there were some that did not.
8
A
No, I don't have that understanding
9
either. I don't have an understanding of the full
10
scope of all welding rods.
11
So it's a question I can't answer
12
other than to say that I don't have an
1 3
understanding one way or another.
1 4
Q
Thank you. Do you have any
15
understanding, Doctor, as to whether any
16
particular types of welding rods contained
17
asbestos?
1 8
A
I discussed my information there.
19
Certainly Fleet Weld 5 did, according to
2 0
testimony. There's likely -- it seemed likely
2 1
also in Fleet Weld 10, and other rods of the 6010
22
classification appeared to also in terms of the
2 3
context of the depositions, but that was not by
2 4
brand name.
25
Q
Is it fair to say that you are
HENRY JACOBS ASSOCIATES, INC. (2 12 ) 661- 8350
56
1
Nicholson
2
assuming based on what you read that other 6010
3
rods had asbestos in them?
4
A It was implied in the discussions that --
5
Q You don't need to quote it to me,
6
Doctor, although you are free to do so. I would
7
simply like you to answer my question.
8
Are you assuming that?
9
A
It was more than an assumption. It
10
was an indication in the material that they did.
11
And that's what I am giving you.
12
Q
So it's your reading of the material
13
that we have already discussed that leads you to
14
that conclusion. Is that a fair statement?
15
A That's correct.
16
Q
Do you know why asbestos was used in
17
the flux of certain -welding rods at one time?
18
A
It enhanced the properties of the
19
flux, and in looking here as to statements
20
therein, but, ummm, it was a desirable material
2 1
and made the welding process better.
22
MR. JACOBS: When you say in here --
2 3
he was referring to IARC Number 49.
2 4
Volume 49.
25
Q If I understand what you're saying,
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
5 7
1
Nicholson
2
Doctor, then, the asbestos as you understand it
3
served a purpose when it was used in the welding
1
rods .
5
A Yes .
6
Q It wasn't just there byhappenstance.
7
A That's correct.
8
Q You say it enhanced. Can you be more
9
specific as to how it enhanced the performance of
10
the rods?
11
A
Without looking through a bunch of
12
stuff, I cannot. It made the -- other than to my
13
recollection it made the flux properties better.
14
Thus a better weld was obtained or the welding
15
process was expedited. I don't remember any
16
specific details, if they were given.
17
Here, I will just read one.
18
Electrodes -- this is in the development.
19
Electrodes consisting of wire wrapped in paper or
20
asbestos string were found to produce better
2 1
results and a range of materials was experimented
22
with flux coatings.
23
So they are describing the development,
2 4
which was substantial in the thirties and
25
especially in the forties, of the welding p r o c e s s
HENRY JACOBS ASSOCIATES, INC. (212 ) 66 1-8350
58
1
Nicholson
2
in this book, and great strides were made, and
3
asbestos contributed to that process.
4
Q
Would it be fair to say, Doctor, that
5
in order for you to tell me precisely how it was
6
that Asbestos improved the performance of welding
7
rods you would need to go back and do some further
8
research?
9
A
I would have to read much more than I
10
have already done so.
11
Q
Thank you.
12
With respect to asbestos containing
13
welding rods, what is your understanding as to
14
where the asbestos could be found?
15
A
It would be in a mixture that is in a
16
material that encases the wire or rod. That is,
17
outside it. Over the length of the rods except
18
for a small portion.
19
Q
Do you have any information about the
20
percentage of asbestos that would have been used
2 1
in any welding rods in this casing that you have
22
described?
23
A
Some percentages are given in Eagar's
24
deposition. I remember it being something like 1,
25
ballpark, 1 or 2 percent by weight ,,or 4 or 5
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
5 9
1
Nicholson
2
percent by volume.
3
Q
Again, is it fair to say that any
>4
information that you have about the quantity of
5
asbestos used in welding rods comes from what you
6
have read in Dr. Eagar or Dr. Peterson's
7
depos it ions ?
8
A Yes .
9
Q Do you knowwhat type of asbestos was
10
used in certain welding rods?
1 1
A
It wasn't -- I know in the description
12
of the use of asbestos in the 1930s it was
1 3
chrysotile. It is my assumption that it continued
1 4
to be chrysotile. I saw no evidence that it was
1 5
amphibole.
1 6
Q Do you have any information, Doctor,
17
about "the type of binding agent that was used to
18
hold the materials that composed this casing
1 9
together?
20
A Again, from the deposition, particularly
2 1
of Mr. Eagar, he spoke about his work with a -- I
22
believe some type of orthosi1icate. And it was a
2 3
very long name. I can look it up if you wish.
24
He also spoke about the use of water
2 5
glass as a b i n d i n g agent.
HENRY JACOBS ASSOCIATES, INC. (212 ) 661-8 350
60
1
Nicholson
2
Q
Is the sum total of the information
3
that you have about the binding agents used in the
4
coatings of welding rods from the deposition
5
testimony given by Dr. Eagar?
6
A
On terms of binding agents, I believe
7
that's correct. I have not done a binding agent
8
literature search.
9
Q
Is it fair to assume from what you
10
said, Doctor, that you do not consider yourself to
11
be an expert in the area of binding agents?
12
A That's correct.
1 3
MR. JACOBS: Objection to the form of
14
the question.
15
Q
You mentioned water glass, Doctor.
16
Can you tell me what that is?
17
A Sodium silicate.
18
Q Do you have any experience with sodium
19
silicate as a binding agent?
20
A
Not specifically as a binding agent.
2 1
Q
Have you ever studied it in any way as
22
to its binding properties?
2 3
A No.
24
Q Are you familiar with theterm
25
"wetting"?
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
6 1
1
Nicholson
2
A Yes .
3
Q What does that mean?
*4
A
It means that water or other fluids
5
can encompass material and, in fact, by capillary
6
action move from the region of contact elsewhere
7
in the material, according to a lot of complicated
8
factors.
9
Q
Do you know whether chrysotile
1 0
asbestos will wet?
1 1
A To some extent it will, certainly.
12
Q What liquid agents will wet with
1 3
chrysotile asbestos?
1 4
A
I would expect water would, but I
15
don't know in detail the answer to your question.
1 6
It's not something I have studied.
17
I know that in a wet circumstance it
18
doesn't completely wet, because when you bind the
19
material in a wet host you get one heck of a lot
20
of dust, when you break it apart.
2 1
Q
Do you know whether sodium silicate
22
will wet with chrysotile asbestos?
23
A
It's so claimed by Mr. Eagar. I don't
2 4
know the details of that, the extent to which it
25
is pos sible.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
62
1
Nicholson
p
2
Also, I do know that in contrast to
3
water, sodium silicate is very viscous. So that
4
the speed of wetting and the degree of wetting may
5
be -- is quite different between the two
6
materials .
7
Q
Have you done any testing on any
8
welding rods for release of asbestos?
9
A No.
10
Q Do you know ofanyone who has?
11
A No.
12
Q Have youexamined
any welding rods, or
13
this casing of welding rods that you described,
14
microscopically?
15
A No.
16
Q Do youknow of anyone who has?
17
A No. I don't recall Mr. Eagar,
18
Dr. Eagar describing microscopic examination. He
19
perhaps did. I would imagine that in the course
20
of his work he would have. So I will assume that,
2 1
but I can't remember, recall a specific reference
22
to i t .
23
Q Let me stray into the general asbestos
24
arena for just a moment.
25
If an asbestos fiber is in some way
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
6 3
1
Nicholson
2
encapsulated or has other particulate attached to
3
it, is it considered to be an asbestos fiber for
4
OSHA purposes?
5
A
I guess it would depend upon the
6
circumstance. If you have a little tiny bit of
7
something and the fiber is within the -- is
8
greater than 5 micrometers and is a respirable
9
size, it probably -- it would be counted in a
10
routine analysis. It would be wise to do so. It
1 1
would be a conservative thing to do. If it's a
12
big block, n o .
1 3
Q
If a fiber has other particulate
1 4
attached to it will that affect the aerodynamic
15
diameter of the fiber?
16
A
Yes, it will. The aerodynamic,
1 7
whether i1:'s largely the diameter of the fiber, or
1 8
in this case if it is encapsulated, including the
19
encapsulate.
20
Q
Is aerodynamic diameter an important
2 1
factor in determining whether or not particulate
22
is respirable in the sense that it reaches the
2 3
smallest recesses of the lung?
24
A
Yes, it is an important factor in
25
that.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
64
1
Nicholson
2
Q
Other than what you have gleaned from
3
the affidavits or portions of depositions which
4
you have read, do you have any other information
5
regarding the types of welding rods used by
6
Mr. Przybylski or Mr. August?
7
A
That is all the information I have.
8
Q
Are you aware of any published studies
9
dealing with the release of respirable asbestos
10
fibers during the use or handling of welding rods?
11
A
I am not aware of studies looking at
12
that issue directly, where measurements were made
13
of the aerosol released.
14
Q
I touched on this subject earlier,
15
Doctor, but let me just ask a follow-up question.
16
Can we agree that there cannot be
17
asbestos fibers in the welding plume because of
18
the heat of the welding arc?
19
MR. JACOBS: Objection as to form, but
20
you can answer the question.
2 1
A
That which is in the arc will be
22
destroyed. There can be -- I can imagine
23
processes taking place that would release, if
24
fibers are released elsewhere on the rod by its
25
bending or some abrasive action, that the
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
65
1
Nicholson
2
aerodynamics of plume formation could carry fibers
3
into it and they could exist in the plume. But
4
not -- their source would not be the arc itself.
5
For that area of the molten welding pool, whatever
6
you call i t .
7
Q
Are you aware of any medical
8
literature which would support the proposition
9
that one can suffer from an asbestos-related
10
disease from exposure to welding rods alone?
1 1
MR. JACOBS: Would you read that.
12
back.
1 3
(A portion of the record was read. )
14
A
I know of no literature that focuses
15
on a directly observed relationship. There is
16
medical literature that is consistent with a no
1 7
threshold exposure response relationship for
18
asbestos malignancies, and thus each exposure,
19
even extremely small ones, can contribute to a
20
cancer risk, and the risk for very small exposures
2 1
is small.
2 2
But to the extent that fibers are
2 3
released from welding rods, they can contribute to
24
a fiber asbestos-related risk. And with enough
2 5
such small exposures there could be disease f rom
HENRY JACOBS ASSOCIATES, INC. (212 ) 66 1-8350
66
1
Nicholson
2
such multiple exposures.
3
Q
You mentioned small exposures, Doctor.
4
If in fact there is a release of respirable
5
asbestos fibers from welding rods, based on what
6
you know and have read would you expect that
7
exposure to be very small?
8
A
It would be much smaller than that of
9
an insulator working in very friable -- working
10
with very friable material and in extensive
11
exposures, at least in the past, without controls.
12
So on that scale, we're certainly
13
talking about a small exposure compared to the
14
heavy industrial exposures of the past.
15
Q
I take it that you can't quantify it
16
any further than what you've just said?
17
A
If you give me -numbers of hypothetical
18
fiber concentrations, I certainly can quantify the
19
difference between the two.
20
Q
I am afraid that's going to be your
2 1
job rather than mine.
22
Are you aware of any medical
23
literature which isolates asbestos containing
24
welding rods as an asbestos health hazard.
25
MR. JACOBS: Objection to the form of
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
67
1
Nicholson
2
the question.
3
A
I don't -- I can't at the moment
1
recall a specific statement suggesting that the
5
asbestos rods create a health hazard as such.
6
There may be -- and this may be simply my
7
limitation of memory at the moment.
8
There may have been, and I am
9
qualifying this, some indication that that was a
10
consideration, so I will just give a qualified
1 1
answer.
1 2
Q
Prior to today have you ever testified
1 3
regarding the release of asbestos from welding
1 4
rods ?
15
A No .
16
Q
Do you know which welding rods
1 7
manufactured by Lincoln Electric contained
18
asbestos?
19
A
The only information I have at this
20
time are those discussed Lincoln Weld 5 and
2 1
Lincoln Weld 10, with some ambiguity with the
22
latter.
23
Q I apologize if I am repeating myself.
24
Do you know of any Hobart rods which contained
25
asbestos?
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
68
1
Nicholson
2 .
2
A I'm sorry, I don't.
3
Q How about Westinghouse?
4
A That's the same answer, I-rdon't. If
5
it was mentioned I missed it. I don'^t* recall
6
those names being discussed in the material I had.
7
Q
Doctor, I believe you list 85
8
publications in your current curricufum vitae; is
9
that correct?
9
10
A Yes.
xt
11
Q
Of those 85 do any of th&m have as
12
their principal focus welding or welders?
13
A
No. Other than as shipyftd workers
14
generically. Not as welding specifi^-iilly.
15
Q
I think you mentioned a 'short time ago
16
the ongoing study that you have beeh'^oing with
1 7
respect to radon exposure.
18
Has that study been completed?
19
A
It's soon to be completed. It's In
20
the final stages.
;A:;
2 1
Q
Nothing has been publishedon that as
22
yet ?
-V'"v
23
That's correct.
o:
-
24
Is it correct, Doctor, that you have
25
testified on other occasions about e
sulation
HENRY JACOBS ASSOCIATES, INC.
(21.2 ) 661-8350
2?
6 9
1
Nicholson
2
of asbestos fibers by various agents?
3
A
Well, I talked about -- I have
4
discussed or published on release of fibers from
!
5
what might be termed "encapsulates." In
6
particular, there is an article on the release of
7
fibers from spackle material. And we have looked
8
at quite a few circumstances where fibers were
9
released from other building materials.
10
Those are reported in that, in the
11
literature you're looking at, literature cited
12
that you're looking at.
1 3
Q
Other than the spackle material that
1 4
you just mentioned, have you tested for or
1 5
reviewed literature regarding the release of
1 6
asbestos that was encapsulated in the product
17
where it was used?
18
A
Well, I have made measurements in
19
homes where asbestos cement materials were
20
utilized and found excess air concentrations in
2 1
the homes from the damage and the cutting of that:
22
material. And when that material is cut in a --
2 3
other measurements by others indicate high
24
concentrations of asbestos, so fiber released from
25
Transite or similar -- which is a trade name
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
Nicholson
obviously, with that type of material occurs.
Fiber release occurs from that during a sawing
process or other abrasive action.
Q
What type of materials are you talking
about again?
A Asbestos cement products.
Q Cement, OK. How is asbestos
encapsulated in asbestos containing cement
materials ?
A
It's bound up in a matrix with cement
and other materials. I don't know the composition
of the material at this time.
Q
Would it be accurate to say, Doctor,
that whether there is a release of asbestos fiber
from an encapsulated material will depend on the
physical activity that is involved with that
particular product?
A
That's correct. Different physical
activities can release different amounts of
asbestos.
Q
In your view, Doctor, what activities
engaged in by welders could theoretically cause
the release of asbestos fiber, respirable asbestos
fiber from welding rods?
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
7 1
1
Nicholson
2
A
They described the dust that appears
3
in boxes and cans and in your pockets which can
4 \
occur from the abrasive rubbing of the surfaces of
5
the materials, one against the other in the
6
containers or against other tools that the worker
7
has .
8
It's described, as one bends rods or
9
wires, that the material will fracture and break
10
away. So there are activities, particularly the
1 1
abrasive action of other tools in a worker's use,
1 2
that might rub against and abrade material, can be
1 3
a source of fiber release.
1 4
Q
Can you think of any other typical
1 5
welding activities other than what you described
16
which would result in that type of abrasive
17
process which theoretically could release
18
respirable asbestos fiber from the rods?
19
A
I don't know of a welding process that
20
would do it. Beyond the broad scope of abrasion
2 1
against something that can be a totally
2 2
happenstance thing or a common thing. Again, I
2 3
don't know of a specific welding activity per se.
24
Q
What is your current position, Doctor,
25
on whether croccidolite asbestos has greater
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
72
1
Nicholson
2
potency for causing mesothelioma than chrysotile
3
asbestos ?
4
A
I believe it does. Most data suggests
5
that it may be two to four times greater. There
6
are some studies that suggest a higher or even
7
lower potency. And it is only with respect to
8
mesothelioma.
9
Q
Some suggest a factor of as high as
10
13, do they not ?
11
A
Yes, that is one study that is
12
relative to a small group of workers in Australia.
13
Q
Do you agree that chrysotile asbestos
14
is subject to being dissolved in the lungs of
15
humans ?
16
A
It's altered and it may be -- it's --
17
whether the word "dissolve" is appropriate or not,
18
I will leave that aside, but it is altered with
19
time. That does not seem to affect its role as a
20
carcinogen relative to other asbestos fibers that
2 1
are not.
22
Q
Putting aside my choice of words so as
23
to allow you to use yours, how is it altered?
24
A
The fiber structure of chrysotile is
25
changed. It is simply that. And it may be
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
7 3
1
Nicholson
2
sufficiently altered that you don't see a residue
3
of a fiber is present. When you look at lung
4
analysis, you see a lot of crap there, a lot of
5
material there. They don't quite know what it is.
6
Q
Is it altered in the sense that it is
7
no longer fibrous?
8
A Yes. Often it is.
9
MR. JACOBS: Take a break?
10
MR. DAVIES: Fine.
11
(A recess was taken.)
12
Q Doctor, in conjunction with your
13
deposition we prepared and served a notice of
14
deposition duces tecum, and one of the things that
1 5
we asked you to provide was a full detailed and
1 6
specific narrative report outlining the expert
17
opinions, conclusions, and expert testimony that
18
you intend to offer at the trial of these cases.
19
My understanding from Mr. Jacobs'
20
response to that notice is that there is no such
2 1
report; is that correct?
2 2
A
I have no report. I received that
2 3
notice yesterday and I had no time to, ummm --
24
MR. JACOBS: There never was a report.
25
A
(Continuing) There was never a report.
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
74
1
Nicholson
2
Q
Is it correct that there was never a
3
draft report of any kind?
4
A
That's correct.
5
Q
Let me ask you a couple of questions
6
about the September 26, 1995, affidavit which you
7
prepared in this case.
8
A
Oh, yes.
9
Q
Do you have a copy of that?
10
A
I'll find i t . Yes.
11
Q
In paragraph 2, the second sentence,
12
you say: "In particular, he," meaning you, "has
1 3
studied the release of asbestos fibers during
14
normal use and handling and during application,
15
removal and replacement of asbestos-.containing
16
products ."
17
Correct?
18
A
Yes .
19
Q
I take it from your earlier testimony
20
today none of the products to which you are
2 1
referring there are welding rods.
22
A
That's correct.
2 3
Q
In paragraph 3, the second and third
24
sentences read as follows:
25
"However, this is not true for the
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
75
1
Nicholson
2
flux coating below the arc area."
3
A
That's what I stated. That does not
4 i
decompose, at least at some distance from the arc.
5
T hat's all.
6
Q
Going on with the quotation.
7
"According to the literature, unless the entire
8
welding rod is consumed during the process, the
9
flux on the used rods is more friable and results
10
in release of fine asbestos containing dust when
1 1
the rods are handled."
12
All I would like to know, Doctor, is
1 3
to which literature are you referring when you
1 4
make that statement.
15
A
There was discussion of the dust from
1 6
rods, some used and some not, that workers
17
described in their testimony that gets into their
1 8
pockets. So it is a general statement. I mean,
19
it would be only that.
20
And that's all we're talking about,
2 1
deposition literature at the moment. I don't have
22
a published -- I don't have a scientific article
2 3
there.
24
Q
That's fine. That's all I wanted to
25
know .
HENRY JACOBS ASSOCIATES, INC. (212 ) 66 1-8 350
7 6
1
Nicholson
2
A OK.
3
Q Going over to paragraph 4, you say in
4
the second sentence there, "There are early
5
reports in the 1940s showing that welders were at
6
risk for asbestos-related disease."
7
Correct? That's what it says?
8
A Yes.
9
Q Let me ask myquestion. Are you
10
talking about any reports there other than those
11
which may appear on what we have marked as
12
Deposition Exhibit 1?
1 3
A Yeah, they would becontained in that,
14
and there is ambiguity -- there can be argument
15
and ambiguity as to the asbestos relatedness of
16
the disease. They have characteristics of
17
asbestos, pneumoconiosis, but it's --
18
Q
Here is what I am trying to find out.
19
I just want to be sure.
20
Are there any reports that you are
2 1
talking about in paragraph 4 that are not on this
22
list that we have marked Exhibit 1?
23
A No.
24
Q Thank you. I am not quitefinished
25
with the affidavit yet. Let me go back to
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
77
1
Nicholson
2
paragraph 2 there, Doctor, of the affidavit.
3
It says in the first sentence: During
4
the course of his, meaning your, academic career
i
5
and professional training you have conducted,
6
studied and evaluated air sampling studies
7
performed at asbestos manufacturing plants and
8
upon various asbestos products, correct?
9
A Right.
1 0
Q Do you have copies of the airsampling
1 1
studies that you have conducted?
12
A
No. At this point I have no idea
1 3
where they are.
1 4
Q
In which manufacturing plants did you
15
conduct such studies?
16
A
I conducted one at a chemical company.
1 7
Amoco or Avisun. It was in Delaware. I must say
1 8
I forget the exact name.
19
Q Is that the only one?
2 0
A I have been present while others have
2 1
been conducting and evaluating air sampling, air
22
conditions in manufacturing plants of the Johns
2 3
Manville Company and Turner Newell in Great
24
Britain, but I was not the one doing the sampling.
25
Q
Were there particular products that
HENRY JACOBS ASSOCIATES, INC. (2 12 ) 661-8 350
78
1
Nicholson
2
you were studying in these evaluations?
3
A Mostly the products were insulation
4
products .
5
Q Any others besides insulation?
6
A
Oh, I don't know. Others would have
7
been considered, but at the moment I don't
8
remember specifically. The noninsulation material
9
would have been a small component of the study.
10
Q
But you don't recall specifically at
11
this moment what those products were?
12
A At this moment I don't.
13
Q
Looking one more time at your
1 4
affidavit, and again, this is the September 26,
15
1995, affidavit, at the very bottom of the first
16
page a sentence begins that reads: "It is his
17
opinion based on reasonable scientific probability
18
the handling of new and used welding rods does
19
create respirable asbestos dust."
20
Is that what it says?
2 1
A That's what it says.
22
Q
Is there anything upon which you rely
2 3
to support that opinion that we have not mentioned
24
or discussed today?
25
A
No, we have discussed the sources of
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
79
1
Nicholson
2
the abras ion.
3
Q
Dr. Nicholson, Mr. Jacobs' office
4
filed a response to our notice of deposition,
\
5
attached to which is something titled "Affidavit
6
of William J. Nicholson," which consists of
7
MR. JACOBS: Affidavit or
8
interrogatory answer?
9
MR. DAVIES: In the material that came
10
to me, Bob, it is an attachment to your --
1 1
there's the title.
1 2
MR. JACOBS: Just show me the pages.
1 3
MR. DAVIES: Here is the affidavit.
1 4
MR. JACOBS: Oh, that one. OK. Those
15
were additional affidavits I gave you,
16
right. I was just confused about what you
1 7
were talking about.
18
THE WITNESS: Oh, these are affidavits
19
that I just --
20
MR. JACOBS: Which one are you talking
2 1
about? He has copies of them.
22
Q
Doctor, do you have in front of you a
23
copy of an affidavit dated March 26, 1989?
24
A Yes .
25
Q And it consists of three pages?
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
80
1
Nicholson
2
A Yes.
3
Q
And the copy that I have does not bear
4
your signature and is not sworn before a notary
5
public .
6
A
Yes. This would be a draft, but it is
7
my recollection I would have signed it. I mean,
8
it somehow moved from some file into another, and
9
it was findable the day before yesterday.
10
Q I have only two questions about the
11
affidavit, and neither of them pertains to the
12
substance of i t .
13
If you would look on page 2,
14
immediately above numbered paragraph 3 is a large
15
blank space; is that correct?
16
A Yes .
17
Q Can you explain to me why that space
18
is there?
19
A
I suspect it had to do with the size
20
of the type and the typewriter copier. There is
21
no reason for the space to be there other than I
2 2
had it fit on one page and when I printed it, it
23
didn't -- the first page didn't fit on one page
24
and it ran over and then continued.
25
Q Paragraph 2 starts on the first page
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350
8 1
1
Nicholson
2
and carries over to the second page, correct?
3
A Right.
4I
Q Is there anythingthat is redacted
5
from this copy?
6
A No. To my recollection, absolutely
7
not. I mean, I feel very strongly it has to do
8
with the computer printer operation.
9
Q
If you would look at paragraph 6,
1 0
please.
1 1
A Same thing.
1 2
Q The same question is put to you. Is
1 3
there anything redacted in that blank space?
1 4
A
No, it even continues in a clear way.
15
MR. JACOBS: For the record, the
16
affidavits that we just referred to were
17
provided as part of the order to have
18
Dr. Nicholson give whatever kind of
19
materials like that he had at hand because
20
of the notice duces tecum.
2 1
I have not gone through what we have
22
given because they were given a few days
23
ago, everything that was in his files.
24
MR. DAVIES; I have no other
25
questions, Doctor. Thank you.
HENRY JACOBS ASSOCIATES, INC. (212 ) 661-8 350
82
1
Nicholson
2
MR. ROTHSCHILD: No questions for you,
3
Doctor.
4
(Time noted: 12:00 noon.)
5
6
7
8
Subscribed and sworn to
9
before me this
day
10
of
1996.
11
12
13
14
15
16
17
18
19
20 21 22
23
2 4
25
HENRY JACOBS ASSOCIATES, INC
(212) 661-8350
84 1
2
CERTIFICATE
3
4
STATE OF NEW YORK )
) ss .
5
COUNTY OF NEW YORK )
6
7
I, THOMAS R . NICHOLS, a shorthand
8
reporter and notary public within and for
9
the State of New York, do hereby certify:
10
That WILLIAM J. NICHOLSON, the witness
1 1
whose deposition is hereinbefore set forth,
12
was duly sworn by me, and that this
13
transcript of such deposition is a true
14
record of the testimony given by such
15
witnes s .
16
I further certify that I am not
17
related to any of the parties to this
18
action by blood or marriage, and that I am
19
in no way interested in the outcome of this
20
matter.
2 1
IN WITNESS WHEREOF, I have hereunto
22
set my hand this /.Q day of
. . . .
23
1996.
24 . . .wVf>
25
HENRY JACOBS ASSOCIATES, INC. (212) 661-8350