Document b5N1m1wnKJv0eqaebKakdJzb3

IN THE CIRCUIT COURT THIRD JUDICIAL CIRCUIT MADISON COUNTY, ILLINOIS IN RE: ALL ASBESTOS LITIGATION FILED BY SIMMONSCOOPER, L.L.C. ) ) ) ) TELEPHONIC EVIDENTIARY RECORDS DEPOSITION OF ROBERT J. MARECEK Records Custodian for National Safety Council Taken on behalf of the Plaintiffs February 17, 2006 Kevin J. Weichman, CSR, CCR ILLINOIS CSR NUMBER: 084-003189 MISSOURI CCR NUMBER: 915 SC-ALL-27580 SCF-ALLF-12125 / / 1 INDEX OF EXAMINATION EXAMINATION BY MR. JACKSTADT ... 2 EXAMINATION BY MR. SPEZIALI .... Page 2 8 22 3 4 EXHIBITS Exhibit 1 - Fundamentals of Industrial ................. 13 5 Hygiene, 2nd Edition Exhibit 2 - Accident Prevention Manual, ............... 15 6 1st Edition Exhibit 3 - Accident Prevention Manual, .............. 15 7 2nd Edition Exhibit 4 - Accident Prevention Manual, ............... 15 8 3rd Edition Exhibit 5 - Accident Prevention Manual, .............. 15 9 4th Edition Exhibit 6 - Accident Prevention Manual, .............. 15 10 5th Edition Exhibit 7 - Accident Prevention Manual, ............... 15 11 6th Edition Exhibit 8 - Accident Prevention Manual, .............. 15 12 7th Edition Exhibit 9 - 360 issues of National .......................... 17 13 Safety News Exhibit 10 - 35 volumes of publications, ............ 20 14 "Transactions" 15 (ORIGINAL EXHIBITS RETAINED BY MR. JACKSTADT. MR. JACKSTADT OFFERED ALL COUNSEL A CD-ROM OF THE 16 EXHIBITS IF THEY CONTACT HIM DIRECTLY.) 17 18 19 20 21 22 23 24 25 POHLMAN REPORTING COMPANY (314) 421-0099 Page 3 1 IN THE CIRCUIT COURT THIRD JUDICIAL CIRCUIT 2 MADISON COUNTY, ILLINOIS 3 IN RE: ALL ASBESTOS LITIGATION FILED BY SIMMONSCOOPER, L.L.C. 4 5 ) ) ) ) 6 THE TELEPHONIC EVIDENTIARY RECORDS DEPOSITION OF ROBERT J. MARECEK, produced, sworn and examined on 7 behalf of Plaintiffs, on Friday, February 17, 2006, between eight in the forenoon and five in the afternoon, 8 in conjunction with Call-in number 1-800-580-9381, Passcode 9012031, before KEVIN J. WEICHMAN, a Certified 9 Shorthand Reporter within and for the County of St. Louis, State of Missouri. 10 11 APPEARANCES 12 APPEARING TELEPHONICALLY: The Plaintiffs were represented by Mr. Eric Jackstadt, of the law firm 13 SimmonsCooper, LLC, 707 Berkshire Boulevard, East Alton, Illinois 62024. 14 15 APPEARING TELEPHONICALLY: The Defendant, Pneumo Abex Corporation, was represented by Mr. Bryan D. 16 Nicholson, of the law firm Armstrong, Teasdale, LLP, One Metropolitan Square, Suite 2600, St. Louis, Missouri 17 63102-2740. 18 APPEARING TELEPHONICALLY: The Defendant, BNSF 19 Railway, was represented by Ms. Linda R. Self, Brasher Law Firm, LC, One Metropolitan Square, 211 North 20 Broadway, St. Louis, Missouri 63102. 21 22 23 24 25 POHLMAN REPORTING COMPANY (314) 421-0099 Page 4 1 APPEARING TELEPHONICALLY: The Defendants, Tenneco Automotive Operating Company, Incorporated, 2 Whiting Corporation, a Delaware Corporation, Armour & Company a/k/a Armour Swift-Eckrich, Con Agra Foods, 3 Incorporated, Illinois Power Company d/b/a AmerenIP, Central Illinois Public Service Company d/b/a 4 AmerenCIPS, Union Electric Company d/b/a AmerenUE, Central Illinois Light Company d/b/a AmerenCILCO, and 5 Ingersoll-Rand Company, were represented by Ms. Edna L. McLain, of the law firm Burroughs, Hepler, Broom, 6 MacDonald, Hebrank & True, LLP, 103 West Vandalia Street, Suite 300, Edwardsville, Illinois 62025-0510. 7 8 APPEARING TELEPHONICALLY: The Defendants, Kelly-Moore Paint Company, Superior Boiler Works, 9 Incorporated, Viad, Resco Products, and George P. Reintjes Company, Incorporated, were represented by 10 Mr. Joshua J. Lens, of the law firm Foley & Mansfield, PLLP, 1001 Highlands Plaza Drive West, Suite 400, St. 11 Louis, Missouri 63110. 12 APPEARING TELEPHONICALLY: The Defendant, 13 Borg-Warner Corporation by its Successor in Interest, BorgWarner Morse TEC, Incorporated, was represented by 14 Mr. Robert S. Sanderson, of the law firm Herzog Crebs, LLP, 515 North 6th Street, Suite 2400, St. Louis, 15 Missouri 63101. 16 APPEARING TELEPHONICALLY: The Defendants, 17 CertainTeed Corporation, Cabot Corporation, Parker-Hannifin Corporation, DaimlerChrysler 18 Corporation, The Boeing Company, Tyson Foods, Incorporated, National Service Industries, Incorporated, 19 METSO Automation Scada Solutions, Incorporated, Bechtel Corporation, CNA Holdings, Incorporated, Koch 20 Industries, Incorporated, Lennox Industries, Kohler Corporation, Minteq International, Riley Stoker 21 Corporation, Wisconsin Public Service Corporation, Neles, Incorporated, Neles-Jamesbury, Incorporated, 22 Neles Automation Scada Solutions, McKesson Corporation, and Wolverine Proctor & Schwartz, were represented by 23 Mr. James J. Bentivoglio, of the law firm Heyl, Royster, Voelker & Allen, Mark Twain Plaza II, 103 West Vandalia, 24 Suite 100, P.O. Box 467, Edwardsville, Illinois 62025-0467. 25 POHLMAN REPORTING COMPANY (314) 421-0099 Page 5 1 APPEARING TELEPHONICALLY: The Defendants, Continental Can Company, The Stovey Company, Zenith 2 Electronics, Rockbestos-Suprenant Cable Company, Warren Pumps, LLC, Dart Industries, Incorporated, Kraft Foods, 3 Incorporated, and General Foods Corporation, were represented by Ms. Lisa A. LaConte, of the law firm 4 Heyl, Royster, Voelker & Allen, Suite 600, Bank One Building, 124 S.W. Adams Street, Peoria, Illinois 61602. 5 6 APPEARING TELEPHONICALLY: The Defendants, Corn Products International, and Corn Products Sales 7 Corporation, were represented by Ms. Monica T. Rios, of the law firm Hodge Dwyer Zeman, 3150 Roland Avenue, Post 8 Office Box 5776, Springfield, Illinois 62705-5776. 9 APPEARING TELEPHONICALLY: The Defendants, 10 Pharmacia f/k/a Monsanto Company, Olin Corporation, Occidental Corporation, ConocoPhillips Corporation, and 11 Goodrich Corporation, were represented by Mr. Steven B. Beshore, of the law firm Husch & Eppenberger, LLC, 190 12 Carondelet Plaza, 6th Floor, Clayton, Missouri 63105. 13 APPEARING TELEPHONICALLY: The Defendant, CNH 14 America, LLC, was represented by Mr. Jeffery G. Chrones, of the law firm Johnson & Bell, Ltd., 33 West Monroe 15 Street, Suite 2700, Chicago, Illinois 60603-5404. \ 16 APPEARING TELEPHONICALLY: The Defendant, AGCO 17 Corporation, was represented by Mr. Jimmy E. Allen, Jr., of the law firm Larson & Larson, 11300 Tomahawk Creek 18 Parkway, Suite 310, Leawood, Kansas 66211. 19 APPEARING TELEPHONICALLY: The Defendant, T.H. 20 Agriculture & Nutrition, LLC, was represented by Mr. Robert P. Marcus, of the law firm Lathrop & Gage, 21 LC, 10 South Broadway, Suite 1300, St. Louis, Missouri 63102. 22 23 24 25 POHLMAN REPORTING COMPANY (314) 421-0099 Page 6 1 APPEARING TELEPHONICALLY: The Defendant, Carrier, was represented by Mr. Thomas Plunkert, of the 2 law firm Leritz, Plunkert & Bruning, PC, One City Centre, Suite 2001, St. Louis, Missouri 63101. 3 4 APPEARING TELEPHONICALLY: The Defendants, American Standard, Incorporated, and ITT, Incorporated, 5 were represented by Mr. Joseph J. Janatka, of the law firm McGuireWoods, LLP, 77 West Wacker Drive, Suite 6 4100, Chicago, Illinois 60601-7567. 7 APPEARING TELEPHONICALLY: The Defendants, 8 Paul J. Krez Company, Meade Electric Company, Siemens Energy & Automation, The Wm. Powell Company, and Nash 9 Engineering, were represented by Mr. Thomas Hayes, of the law firm McKenna, Storer, Rowe, White & Farrug, 33 10 North LaSalle Street, Suite 1400, Chicago, Illinois 60602-2610. 11 12 APPEARING TELEPHONICALLY: The Defendants, John Crane, Incorporated, Cleaver Brooks, Sepco, and 13 Scapa, were represented by Mr. William M. Koziol, in association with O'Connell, Tivin, Miller & Burns, LLC, 14 645 Tollgate Road, Suite 220, Elgin, Illinois 60123. 15 APPEARING TELEPHONICALLY: The Defendants, 16 Honeywell International, Incorporated, Buffalo Pumps, Incorporated, Nissan North America, Incorporated, and 17 Square D Company, were represented by Ms. Amy Kramer, of the law firm Polsinelli, Shalton, Welte, Suelthaus, PC, 18 100 South Fourth Street, Suite 1100, St. Louis, Missouri 63102-1825. 19 20 APPEARING TELEPHONICALLY: The Defendants, Ford Motor Company, and General Motors Corporation, were 21 represented by Mr. Joseph P. Sullivan, of the law firm Sanchez, Daniels & Hoffman, LLP, 333 West Wacker Drive, 22 Suite 500, Chicago, Illinois 60606. 23 24 25 POHLMAN REPORTING COMPANY (314) 421-0099 2 APPEARING TELEPHONICALLY: The Defendant, Yarway Corporation, was represented by Ms. Nicole 3 Bolton, of the law firm Spencer, Fane, Britt & Browne (STL), 1 North Brentwood, Suite 1000, St. Louis, 4 Missouri 63105. 5 APPEARING TELEPHONICALLY: The Defendant, Dana 6 Corporation, was represented by Mr. David Speziali, of the law firm Speziali, Greenwald & Hawkins, 1081 Winslow 7 Road, Box 1086, Williamstown, New Jersey, 08094. 8 APPEARING TELEPHONICALLY: The Defendants, 9 Lucent, AT&T, and Red Devil, Incorporated, were represented by Ms. Michelle L. Corrigan, of the law firm 10 Stinson, Morrison, Hecker, LLP, 100 South 4th Street, Suite 700, St. Louis, Missouri 63102. 11 12 APPEARING TELEPHONICALLY: The Defendants, Conwed Corporation, Corrigan Company, Gorman-Rupp, 13 Industrial Process, and Midwesco, were represented by Mr. Christian Cagas, of the law firm Walker and 14 Williams, PC, 4343 West Main Street, Belleville, Illinois 62226. 15 16 APPEARING TELEPHONICALLY: The Defendant, Morrison Construction Company, Incorporated, was 17 represented by Ms. Dana Switzer of the law firm Wooden & McLaughlin, LLP, One Indiana Square, Suite 1800, 18 Indianapolis, Indiana 46204. 19 ALSO PRESENT: Michael R. Noakes, Esq. 20 **REPORTER'S NOTE: ALL COUNSEL WERE INSTRUCTED BY THE 21 COURT REPORTER AS WELL AS MR. JACKSTADT AT THE BEGINNING OF THE DEPOSITION AND AT THE CONCLUSION TO EMAIL THE 22 COURT REPORTER THEIR APPEARANCE AND WHO THEY REPRESENTED.* * 23 24 25 POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 8 1 IT IS HEREBY STIPULATED AND AGREED by and 2 between Counsel for the Plaintiff and Counsel for the 3 Defendants that this deposition may be taken in 4 shorthand by Kevin J. Weichman, a Certified Shorthand 5 Reporter, and afterwards transcribed into typewriting, 6 and the signature of the witness is waived by agreement 7 of counsel and the witness. 8 g * 1c it -k 10 11 ROBERT J. MARECEK, 12 of lawful age, being produced, sworn, and examined on 13 the part of Plaintiffs, after answering "I do" to the 14 oath administered by the court reporter, deposes and 15 says: 16 17 [EXAMINATION BY MR. JACKSTADT:] 18 19 Q. (BY MR. JACKSTADT) This is Eric Jackstadt, 20 attorney for the SimmonsCooper firm. We are taking 21 this deposition of Mr. Marecek by telephone 22 conference today. It was noticed on the POS and as a 23 custodian of records deposition. 24 At this time I would like the witness to 25 please state his full name? POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 9 1 A. My name is Robert, middle initial J., last 2 name Marecek. 3 Q. Mr. Marecek, where do you currently reside? 4 In what town? 5 A. I reside in Westchester, Illinois. 6 Q. And from what location are you giving this 7 deposition? 8 A. I am giving this deposition from the 9 National Safety Council headquarters in Itaska, 10 Illinois. 11 MR. JACKSTADT: By agreement in discussion 12 prior to the beginning of the deposition, we have 13 agreed to the stipulation that an objection lodged by 14 one of the parties opposing will be considered an 15 objection for all. 16 We also agreed that at this point in the 17 deposition, any general objections that wanted to be 18 read on the record will be done so at this time. 19 Can you please identify yourself and state 20 your objection, please. 21 MS. LaCONTE: This is Lisa LaConte. I have 22 a couple of statements. 23 Number one, we provided the court reporter 24 with our appearances today. This deposition was 25 noticed In Re: All Simmons Cases, the proof of POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 10 1 service attached, with respect to almost all of us, 2 lists numerous different defendants, many of whom 3 have no active cases pending in Madison County at 4 this time. 5 For the purposes of this deposition, I want 6 to make it clear that I am only appearing for the 7 companies that are included on my notification to the 8 court reporter and that our appearance today should 9 not be deemed to be an appearance for all of the 10 defendants who are listed in association with either 11 my name or our law firm's name on the proof of 12 service document. 13 That *s all 1 have. Thank you. 14 MR. BENTIVOGLIO: This is Jim Bentivoglio. 15 As a general objection, I just want to state that we 16 are not waiving any objections to the adequacy of 17 foundation of the documents that will be discussed at 18 this deposition. 19 We are not waiving any other objections to 20 any of the clients listed on our proof of service 21 with respect to personal jurisdiction and notice. I 22 would like the record to reflect this objection on 23 behalf of Cabot Corporation and Wisconsin Public 24 Service Corporation. 25 And finally, we are objecting to the POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 11 1 deposition in that it was not noticed in conformance 2 with Supreme Court Rule 206(h)(2) requiring the 3 exhibits or demonstrative evidence to be presented to 4 the defendants within a reasonable time. 5 Thank you. 6 MR. NOAKES: This is Mike Noakes. I would 7 also object that we haven't been provided the 8 documents prior to the deposition so that we can 9 properly formulate any objections to the documents. 10 So we would reserve any objections to whatever is 11 produced today. 12 MR. JACKSTADT: For the record, as I 13 explained prior to the first attempt of the 14 deposition, anyone who wants copies of what we are 15 marking as exhibits, send me an e-mail or letter, and 16 we will provide those promptly upon request. 17 To have distributed these to everyone on the 18 POS who might have appeared would have been 19 impracticable, but we will provide them as soon as it 20 is requested. 21 Any other generalobjections? 22 Thank you. 23 Q. (BY MR. JACKSTADT) Mr. Marecek, by whom are 24 you currently employed? 25 A. I am employed by the National Safety POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt 1 Council. Page 12 2 Q. And where is that located? 3 A. At 1121 Spring Lake Drive, Itaska, Illinois 4 60143 . 5 Q. Sir, how long have you been employed by the 6 National Safety Council? 7 A. 24 years. Going on 25 this April. 8 Q. And in what capacities have you been 9 employed by them up to your current position? 10 A. I started out as a reference librarian in 11 1981. In 1986 I was promoted to manager of the 12 library, and I still maintain that position. 13 Q. Sir, could you tell us some of your 14 qualifications, academic qualifications, that you had 15 for this position? 16 A. I have a master's degree in library and 17 information science that I received from Dominican 18 University in 1977. 19 Q. And could you tell us your duties as 20 reference librarian at the National Safety Council? 21 A. My main duty is to collect, organize, and 22 disseminate information on safety and health to the 23 members of the National Safety Council. 24 The library is also open to the public, so 25 nonmembers can have access to the library; however. POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 13 1 they do pay user fees for that access, where the 2 members receive many of the library services free of 3 charge as part of their membership benefit. 4 Q. How long has the library been open to the 5 public with those qualifications? 6 A. The library had been in existence, based on 7 my research, since 1915. According to further 8 research, it appears the library was open to the 9 public, I would say, in the late 1919s or early 10 1920s. The council was formed in 1913. 11 Q. Sir, in your position as reference 12 librarian, can you tell us your familiarity with the 13 publications that are published by the NSC itself? 14 A. I am very familiar with many of the 15 publications put out by the NSC, just for the fact 16 that master copies are housed in our library in our 17 archives. 18 Q. How does that -- is that part of your 19 duties, to handle those published materials by the 20 NSC and to archive them? 21 A. Yes. Part of my duties as -- the library 22 also acts as a repository for NSC-published 23 materials. 24 (EXHIBIT NO. 1 WAS 25 MARKED FOR IDENTIFICATION.) POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 14 1 Q. (BY MR. JACKSTADT) Sir, as part of this 2 deposition, we are marking as Exhibit 1 a book 3 entitled "Fundamentals of Industrial Hygiene, 2nd 4 Edition, " published in 1979 by the National Safety ! 5 Council. Julian B. Olishifski, O-l-i-s-h-i-f-s-k-i, 6 editor-in-chief. This is a volume of 1277 pages. 7 Are you familiar with that publication, sir? j 8 A. Yes, I am. 9 Q. Is that publication -- is that volume 10 present in your library today? 11 A. Yes, it is. 12 To your knowledge, sir, was Exhibit 1 Q. j 13 published in the regular course of business of the 14 National Safety Council? 15 A. Yes. 16 Q. Is it being kept as a volume in the NSC 17 library in the regular course of business of the NSC? 18 A. Yes, it is. 19 Q. Sir, this volume -- is the volume that is 20 present in the NSC Library now a record of what was 21 published by the Safety Council in that volume in 22 1979? 23 A. Yes, it is. 24 Q. And would this volume have been available to 25 every member of the NSC? POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt 1 A. Yes. Page 15 2 Q. And as you stated earlier, with certain 3 circumstances, user fees, would this have been 4 available to the general public? 5 A. Yes. 6 (EXHIBITS 2 THROUGH 8 WERE 7 MARKED FOR IDENTIFICATION.) 8 Q. (BY MR. JACKSTADT) Sir, the next seven 9 exhibits, Exhibits 2 through 8, are all volumes or 10 editions of the following book, and I am going to ask 11 you about each one and I am going to identify them 12 separately, but they are all volumes of a book called 13 Accident Prevention Manual for Industrial Operations 14 published by the National Safety Council. 15 We have marked as Exhibit 2 the 1st Edition 16 published in 1946, which is 546 pages. 17 Exhibit 3 is a 2nd Edition published in 18 1951, which is 668 pages. 19 We have marked as Exhibit 4 the 3rd Edition, 20 which was published in 1955, 1362 pages. 21 Exhibit 5 is the 4th Edition published in 22 1959, 1534 pages. 23 Exhibit 6 is the 5th Edition published in 24 1964, 1424 pages. 25 Exhibit 7 is the 6th Edition published in POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt 1 1969, 1666 pages. Page 16 2 Exhibit 8 is the 7th Edition published in 3 1974 of 1536 pages. 4 Sir, Exhibits 2 through 8, are you familiar 5 with those publications? 6 A. Yes, I am. 7 Q. Are all those volumes present in the NSC 8 Library today? ! 9 A. Yes, they are. 10 Q. To your knowledge, sir, were Editions 1 11 through 7 of the Accident Prevention Manual for 12 Industrial Operations published by the National 13 Safety Council in the regular course of business? 14 A. Yes. 15 Q. And is it kept in your library? Are all 8 16 volumes kept in your library in the normal course of 17 business? 18 A. Yes, they are. 19 Q. Let me amend that. 20 Are all 7 editions that we marked as 21 Exhibits 2 through 8 kept in the normal course of 22 business in the NSC Library? 23 A. Yes, they are. 24 Q. Sir, Editions 1 through 7, are the editions 25 that are in your library the record of what was POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 17 1 published by the Safety Council in the year of their 2 publication? 3 A. ' Yes. 4 Q. And would these editions have been available 5 to members of the National Safety Council? 6 A. Yes. 7 Q. And pursuant to the limitations or fee 8 structures that you spoke of earlier in the 9 deposition, would they have been available to members 10 of the general public? 11 A. Yes. 12 (EXHIBIT NO. 9 WAS 13 MARKED FOR IDENTIFICATION.) 14 Q. (BY MR. JACKSTADT) Thank you, sir. The 15 next item we are marking as Group Exhibit 9. Group 16 Exhibit 9 will be 360 issues of a publication called 17 the National Safety News. 18 We have monthly publications spanning a time 19 from 1929 through and including in the year 1969. 20 For the record, I am going to read off the years and 21 the number of volumes that we have that will comprise 22 Group 9. 23 Group 9 starts with National Safety News 24 1929, 12 issues; 1930, 12 issues; 1931, 12 issues; 25 1932, 12 issues; '33, 12 issues; 1934, 12 issues; POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 18 1 1935, 12 issues; 1936, 12 issues; 1937, 12 issues; 2 1938, 12 issues; 1939, 12 issues; 1940, 12 issues; 3 1941, 12 issues; 1942, 12 issues; 1943, 12 issues; 4 1944, 12 issues; 1945, 12 issues; 1946, 12 issues; 5 1947, 12 issues; 1948, 12 issues; 1949, 12 issues; 6 1951, 12 issues; 1952, 12 issues; 1953, 12 issues; 7 1954, 12 issues; 1962, 6 issues from July to 8 December; 1963, 12 issues; 1964, 12 issues; 1965, 12 9 issues; 1967, 12 issues; 1968, 12 issues; and 1969, 6 10 issues from January to June. 11 Sir, regarding Group 9, are you familiar 12 with the publication National Safety News? 13 A. Yes, I am. 14 Q. Could you give us a brief description of 15 what that publication was? 16 A. National Safety News was the workplace 17 publication put out by the National Safety Council. 18 In about 1989 it experienced a name change. It is 19 now called Safety & Health. 20 The library has all the issues to National 21 Safety News and Safety & Health in our collection. 22 Q. And was it published monthly, to your 23 knowledge? 24 A. Yes,it was published monthly. 25 Q. Sir, regarding the volumes -- or the issues POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 19 1 that I've read off that will comprise Group 9, are 2 all those volumes present in the National Safety 3 Council' s Library today? 4 A. Yes. 5 Q. To your knowledge, sir, were they published 6 in the normal course of business of the National 7 Safety Council when they were published? ! 8 A. Yes. 9 Q. And you're keeping them in the library today 10 as part of the regular course of business of the 11 National Safety Council; is that correct? 12 A. Yes. 13 Q. And, sir, is The National Safety News 14 volumes that are in your library a record of what was . 15 published by the Safety Council at the time of the i 16 date of publishing? 17 A. Yes. 18 Q. And would these volumes and issues of the 19 National Safety News that comprised Group 9 have been j 20 available to members of the National Safety Council? 21 A. Yes. ; 22 Q. To your knowledge, would they have been 23 available to members of the general public? 24 A. Yes. 25 POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 20 1 (EXHIBIT NO. 10 WAS 2 MARKED FOR IDENTIFICATION.) 3 Q. (BY MR. JACKSTADT) Sir, the next item that 4 we are going to discuss is Plaintiff's Group Exhibit 5 10, which will comprise of 35 volumes of publications 6 entitled "Transactions." 7 Are you familiar with that publication, sir? 8 A. Yes, I am. 9 Q. Did I read the name -- is that the full name 10 of these volumes? 11 A. It goes under Transactions of the National 12 Safety Council. Sometimes it is entitled 13 "Transactions of the National Safety Congress," but 14 they are all comprised -- they all represent the 15 annual meeting the National Safety Council has each 16 year. 17 Q. By purposes of identification, I will now 18 state what volumes of Transactions will comprise 19 Group 10. 20 We have 35 volumes spanning from 1930 21 through 1970, missing a few years. The Transactions 22 volumes that are included in Group 10 are 23 Transactions from 1930, 1931, 1933, 1934, 1935, 1936, 24 1937, 1939, 1940, 1941, 1942, 1943, 1944, 1946, 1948, 25 1949, 1950, 1951, 1952, 1953, 1954, 1955, 1956, 1959, POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Jackstadt Page 21 1 I960, 1961, 1962, 1963, 1964, 1965, 1966, 1967, 1968, 2 1969, and 1970. 3 Sir, those volumes of Transactions, are 4 those volumes that I read off present in the National 5 Safety Council Library? 6 A. Yes, they are. 7 Q. And to your knowledge, sir, were those 8 volumes published in the normal course of business of 9 the National Safety Council when they were published? 10 A. Yes. 11 Q. Are they being kept in your library 12 currently in the normal course of business of the 13 National Safety Council? 14 A. Yes. 15 Q. Sir, the Transactions volumes are reports of 16 what occurred at the annual conference of the 17 National Safety Council? 18 A. Yes. 19 Q. And to your knowledge, though Group 10 is 20 missing some years between 1930 and 1970, was there 21 one published for every year in between there? 22 A. Yes. The only year that there was not one 23 published was 1945 because of World War II. 24 MR. JACKSTADT: So otherwise, we are missing 25 volumes for -- there would not be one for 1945, and POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali Page 22 1 Group 10 is missing 1932, '38, '47, '56, and '58, for 2 those of you keeping score. 3 Q. (BY MR. JACKSTADT) Sir, are the volumes 4 that make up Group 10 a record of what transpired at 5 the Transactions -- or at the conferences -- of the 6 yearly conference of the National Safety Council at 7 the time that the matters occurred? 8 A. Yes. 9 Q. And, sir, would the volumes that make up 10 Group 10 have been available to members of the 11 National Safety Council since they were published? 12 A. Yes. 13 Q. And would they be available, with the 14 caveats that we discussed earlier in the deposition, 15 to members of the general public? 16 A. Yes. 17 MR. JACKSTADT: Sir, that's all the 18 questions that I have for you at this time. 19 Any defense counsel have any questions? 20 MR. SPEZIALI: I have a few. Dave Speziali 21 for Dana Corporation. 22 23 [EXAMINATION BY MR. SPEZIALI:] 24 25 Q. (BY MR. SPEZIALI) Can you hear me, sir? POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali 1 A. I sure can. Page 23 2 Q. Mr. Marecek, I have in front of me, and it 3 may be - - do you have the exhibits in front of you, 4 by any chance? I know there's a lot of them. 5 A. No, I do not. 6 Q. You do not. Let me tell you what I am 7 looking at. I'm looking -- and I recognize you don't 8 have it in front of you, so this isn't a memory game. 9 But I am looking at the Accident Prevention 10 Manual for industrial operations. This would be the 11 7th Edition, which would be the 1974 Edition? 12 A. I believe that is a white cover. 13 Q. Right. But actually what I have is the 4th 14 printing, which is 1980. It is the 4th printing of 15 the 7 th Edition. 16 So what happened? So did they print these 17 and then make additional copies as they ran out? 18 A. Yes. To my knowledge, yes. 19 Q. I am going to focus, and again I recognize 20 you don t have it in front of you, but there is a 21 section that talks about service organizations that 22 are out there in the public arena as sources of help i 23 for industrial safety. 24 Are you familiar with what I am talking 25 about? POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali Page 24 1 A. I believe I am familiar with that chapter, 2 yes. 3 Q. And this, actually, for the record, of the 4 edition that I am looking at, starts at -- it is 5 Chapter 23, Page 591, and it is entitled "Sources of 6 Help." 7 MR. JACKSTADT: For the record, I want to 8 state that Exhibit 8 of this deposition is the 7th 9 Edition published in 1974. j 10 To the extent that you're talking about one 11 that was published in 1980, I am not sure that we are 12 talking about the same thing. I just wanted to make 13 that record. Go ahead, Dave. 14 MR. SPEZIALI: I tell you what we will do. 15 We will call this, if everybody has a problem with 16 it, it is the 7th Edition, but that is a fair 17 comment . It is a reprint in 1980. So perhaps we 18 will just designate this as another exhibit number? 19 MR. JACKSTADT: That would be fine. 20 Defendant's 1 or -- 21 MR. SPEZIALI: Or Exhibit 11. You might as 22 well just call it Exhibit 11. 23 MR. JACKSTADT: That would be fine. : 24 MR. SPEZIALI: And then we will get a copy 25 off to you through local counsel. POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali Page 25 1 Q. (BY MR. SPEZIALI) What I want to talk about 2 for a second, one of the sources of help is noted as 3 the National Safety Council, and I am now on Page 4 592. 5 What they show initially are the various 6 sections for the Industrial Safety Council, starting 7 with aerospace, air transport, and it literally goes 8 all the way through wood products. 9 Are you familiar with what I am talking 10 about? 11 A. Yes. 12 Q. What were those sections? What was that? 13 A. The National Safety Council is broken up 14 into three, I guess you could say, for lack of a 15 better word, venues. We have workplace, traffic, and 16 home and community. 17 Workplace can be broken down into a number 18 of specific industries. So you would have members 19 who would belong to a section that represents their 20 industry, and they would have common safety problems 21 and issues within their industries. 22 So that section would represent that 23 particular industry, such as aerospace. 24 Aerospace section would have members in the 25 aerospace industry; therefore, they would discuss POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali 1 various comments, safety and health issues. Page 26 2 Q. That's another question. Does the library 3 maintain -- or is there a membership list somewhere 4 going back to the inception of the National Safety 5 Council to show who was in and out during the years? 6 A. Our membership department does have a 7 membership database and they maintain membership 8 records to the best of their ability. 9 There has been a number of conversions that 10 have been done to the membership database, so I 11 cannot comment on the accuracy of some of the 12 records. But I do not have any of those kinds of 13 lists here in the library. 14 Q. So just to carry it through, if I wanted to 15 know who were members of the National Safety Council 16 in 1925, just pick a year out of the air, how would I 17 go about doing that? 18 A. You could make a request to our membership 19 department in writing, find out if they could produce 20 a list of records they currently have that shows 21 companies that were members of the National Safety 22 Council in 1925. 23 However, I do want to stipulate that they 24 have to be continuous members. If they had dropped 25 being a member anytime during that period and then POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali Page 27 1 reupped as a member, then the current record would 2 show the date they reupped. You would lose all that 3 past information. 4 Q. I gotcha. Now, another question. Do any of 5 the publications through these years reflect who the 6 members are, other than maybe a specific author? 7 A. The National Safety Council Transactions, in 8 the Transactions, they do show the various divisions 9 or sections that comprise the National Safety 10 Council. They do list the officers of those 11 sections. 12 To be an officer in a section you had to be 13 a member of the National Safety Council. So at least 14 in that respect, anybody who is listed as an officer 15 in that section had to be a member. 16 But that wouldn't show all members within 17 the section. It would just show people who were 18 officers in the section. 19 Q. Another question, are there any documents in 20 the library which show the rules for becoming a 21 member? And I will tell you what I am referring to. 22 For example, was there a limitation that if 23 you were with a government entity, for example, you 24 couldn't be a member, or if you were with a labor 25 union, you couldn't be a member? Were there any kind POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali 1 of limitations like that? Page 28 2 MR. JACKSTADT: Excuse me. I will object to 3 the relevance of this cross-examination. 4 Go ahead and answer, sir. 5 THE WITNESS: I am unfamiliar with that type 6 of document existing. To my knowledge, anybody can 7 become a member of the National Safety Council. 8 Q. (BY MR. SPEZIALI) Following through in this 9 section, "Sources of Help," the next section under 10 the National Safety Council is a list of 11 publications, and this is on 594 on the volume I have 12 in front of me. 13 It starts -- I will just name these and I 14 will ask you, as to each one, whether these are in 15 the library. 16 There was one called Family Safety. Is that 17 in the library? 18 A. That's a periodical dealing with home 19 safety. 20 Q. Farm Safety Review? 21 A. Yes, that's in the library. 22 Q. Industrial Supervisor? 23 A. Yes, that's in the library. 24 Q. Journal of Safety Research? 25 A. Yes, it's in the library. POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali Page 29 1 Q. National Safety News we talked about, I 2 believe. 3 A. Uh-huh. Yes. 4 Q. Product Safety Up-To-Date, are you familiar 5 with that one? ; 6 A. Could you give me the title again, please? 7 Q. Yes. Product Safety Up-To-Date. 8 A. Yes, I am familiar with that. That is a 9 newsletter. 10 Q. And that, of course, Sectional Newsletters 11 is the next. 12 A. Yes, I am familiar with those. 13 Q. Safe Driver? 14 A. Yes, I am familiar with that. It is no 15 longer in print, but it was a National Safety Council 16 publication. 17 Q. And is that in the library? 18 A. Yes, it is. 19 Q. Okay. Safe Worker? 20 A. Yes, it is in the library. 21 Q. Traffic Safety? 22 A. Yes, it is in the library. 23 Q. The National Safety Council, are you 24 familiar with the poster program they had? 25 A. A little bit. I do know the National Safety POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali 1 Council did produce posters. They did package Page 30 2 posters and make those available to the members who 3 are nonmembers who wish to purchase it. 4 MR. JACKSTADT: I will object as beyond the 5 scope of direct. 6 Go ahead, sir. j 7 Q. (BY MR. SPEZIALI) Are any of those 8 contained in the library? 9 A. We do have some of the posters in the 10 library, but not all of the posters. 11 Q. And there was also -- and again, the 12 question is leading to whether it is in the library 13 or not. I believe there was also some type of 14 flip-chart program that you had for presentations j 15 within the workplace? 16 MR. JACKSTADT: Same objection. 17 Go ahead, sir. 18 THE WITNESS: I have heard about the 19 flip-charts; however, I don't recall ever seeing 20 them. 21 Q. (BY MR. SPEZIALI) Let me ask you about some 22 other things, about whether they are in the library 23 or not. 24 There were also some publications, I 25 believe, that were provided to children, particularly POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali Page 31 1 of school age, dealing with comic books and things 2 like that. 3 Are they in the library? 4 A. There were coloring books available, and we 5 do have copies of those here at the library. 6 MR. JACKSTADT: Show my objection as beyond 7 the scope. 8 Go ahead. 9 Q. (BY MR. SPEZIALI) Are you familiar with the 10 teachers' aids that were provided for classrooms for 11 teachers to teach safety to children? Are you 12 familiar with those? 13 A. I'm familiar with something called Safety 14 Education Data Sheets. That might be what you are 15 talking about. 16 Q. Yes. 17 A. Yes, I am familiar with those. Thoseare in 18 the library. 19 MR. JACKSTADT: Same objection. 20 Q. (BYMR.SPEZIALI) Now, again, looking at my 21 Exhibit 11, which would be the 4th printing of the 22 1974, which I believe is Exhibit 8, on the page 23 designated Roman Numeral X is a document that says 24 "National Safety Council" and it's a document from an 25 act of Congress signed by President Eisenhower. POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali Page 32 1 Are you familiar with what I'm talking 2 about? 3 A. You are talking about the National Safety 4 Council charter. Yes, I'm familiar with it. There's 5 a copy hanging in our library. 6 Q. Now, you had said earlier -- and again, I 7 know what you are referring to, but for the record I 8 just want to establish this. 9 The National Safety Council was established, 10 as you indicated earlier, in what year? 11 A. 1913. 12 Q. And then in 1930, is it true that it was 13 incorporated in the State of Illinois? 14 A. I believe you are right. I am not sure on 15 the date, but I know it was incorporated sometime in 16 the 1930s or early 1940s. 17 Q. And that documentation would be in the 18 library? 19 A. Yes, I believe we have a copy of the 20 Articles of Incorporation. 21 Q. And then, of course, I have the advantage of 22 having it in front of me, but assume that my eyes are 23 not deceiving me and I am reading this right, but I 24 believe it is August of 1953, if I can read the small 25 print. POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali Page 33 1 Actually, it looks like August 13th or 15th 2 of 1953, there was an act of Congress incorporating 3 the National Safety Council? 4 A. You are right on the month and the year. 5 The U.S. Congress had an act that made the 6 National -- gave the National Safety Council a 7 charter, just recognizing it as a premiere 8 organization dealing with safety and health. 9 Q. And that's signed by the President of the 10 United States at that time? 11 A. That's correct. 12 Q. And all that documentation would be in the 13 library? 14 A. Yes. 15 Q. And once that occurred, am I reading this 16 correct, that the National Safety Council then 17 functioned with some oversight by the United States 18 Government? 19 A. No, I wouldn't say that. I wouldn't say 20 with some oversight by the United States Government. 21 Q. I will tell you why I ask that, because 22 there is a section in the charter, the Congressional 23 act that I am looking at, that says "Audit 24 Congressional reports," and it says "The financial 25 transaction should be audited annually by certified POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali 1 accountants." Page 34 2 And I am reading this now, "Each report of 3 such charter shall be made by the corporation to 4 Congress," and then they give a date by which to do 5 that. 6 Are you familiar with that? 7 A. You are saying they are submitting a 990 8 Form? 9 Q. I am only reading the language that -- here. 10 A. If you are talking about financial records, 11 I believe they are obligated to do that when they are 12 given a charter by the U.S. Congress. They have to 13 submit certain financial records, and I believe it is 14 a 990 Form. 15 Q. I see. What is the significance of that 16 charter? Maybe I should have just asked it that way. 17 A. It gives us national recognition by the 18 United States Government that they feel we are a 19 premiere safety and health organization within the 20 United States. 21 Q. Were there any members -- were unions 22 allowed to be members, or based on the documents that 23 you have seen, were unions members? 24 MR. JACKSTADT: Objection. Beyond the 25 scope. POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali 1 Go ahead, sir. Page 35 2 THE WITNESS: Anybody can become a member of 3 the National Safety Council. Unions were and are 4 allowed to become members. 5 Q. (BY MR. SPEZIALI) "Were and are," okay. 6 And if somebody wants to get down to that 7 library, we just contact you, and subject to whatever 8 scheduling issues could be worked out, we can come 9 down there? 10 A. You sure can. 11 MR. SPEZIALI: Okay. And for the record - 12 although we'll get an appropriate letter out to 13 counsel, but Dana Corporation, through local counsel, 14 would like a copy of all the exhibits, and I will get 15 a copy of the document I'm referring to to local 16 counsel. 17 Thank you very much, sir. 18 THE WITNESS: Sure. 19 MR. JACKSTADT: Anyone else? 20 MR. NOAKES: This is Mike Noakes. I just 21 want to make an objection that since we were not 22 provided the documents before the deposition took 23 place, we have no way of knowing what questions we 24 would have asked, so we are going to reserve our 25 questioning of the witness. POHLMAN REPORTING COMPANY (314) 421-0099 Examination by Mr. Speziali 1 MR. JACKSTADT: Understood. Page 36 2 MR. MARCUS: Bob Marcus, and I will join in 3 that objection. 4 MR. JACKSTADT: For the record, any 5 objection made by any single member has been 6 stipulated to be an objection for all. 7 Anyone else? 8 I have no further redirect, sir. Thank you. 9 This concludes the deposition. 10 Per discussion before the deposition, if you 11 would like a copy of what we have designated as 12 Exhibits 1 through 10, the final two being Group 13 Exhibits 9 and 10, please e-mail me or send me a 14 letter. My e-mail is Ejackstadt, 15 E-j-a-c-k-s-t-a-d-t, at SimmonsCooper.com, and we'll 16 shoot you a disk. 17 And any defense counsel that joined after we 18 started the deposition, the court reporter will give 19 you an e-mail address to send your appearance and who 20 you were appearing for. This must be done to be 21 included in the appearances. 22 (DEPOSITION ADJOURNED AT 2:30 P.M.) 23 (WHEREUPON THE SIGNATURE WAS WAIVED AND 24 THE WITNESS EXCUSED.) 25 POHLMAN REPORTING COMPANY (314) 421-0099 Page 37 1 CERTIFICATE 2 I, KEVIN J. WEICHMAN, CSR, CCR, do hereby certify 3 that there came before me in conjunction with Call-in 4 number 1-800-580-9381, Passcode 9012031, 5 6 ROBERT J. MARECEK, 7 who was by me first duly sworn; that the witness was 8 carefully examined, that said examination was reported 9 to myself, translated and proofread using computer-aided 10 transcription, and the above transcript of proceedings 11 is a true and accurate transcript of my notes as taken 12 at the time of the examination of this witness. 13 I further certify that I am neither attorney nor 14 counsel for nor related nor employed by any of the 15 parties to the action in which this deposition is taken; 16 further, that I am not a relative or employee of any 17 attorney or counsel employed by the parties hereto or 18 financially interested in this action. 19 Dated this 27th day of February, 2006. 20 21 22 KEVIN J. WEICHMAN, CSR, CCR 23 24 25