Document bO0a1a33Rw5nE3oaNpKvbQgek

PLAINTIFF'S EXHIBIT CAUSE NO. 98-317-G UPRC-117 WILMA S. CLARK, Individually and as Personal Representative of the Heirs and Estate of HOWARD HAROLD CLARK, DECEASED VS. UNION PACIFIC RESOURCES COMPANY (f/k/a CHAMPLIN PETROLEUM COMPANY (Individually and as successor-by-merger to PONTIAC REFINING CORPORATION); CHEVRON, U.S.A. rNC. (Individually and as successor-by-merger to GULF OIL CORPORATION); HOECHST CELANESE CORPORATION (ftk/a CELANESE CORPORATION); and CELANESE, LTD. IN THE DISTRICT COURT OF NUECES COUNTY, TEXAS 319TH JUDICIAL DISTRICT DEFENDANT RIME PETROLEUM COMPAN Y. F/K/A UNTON PACIFIC RESOURCES COMPANY F/K/A CHAMPLIN PETROLEUM COMPANY. INDIVIDUALLY AND AS SUCCESSOR BY MERGER TO PONTIAC REFINING CORPORATION'S FIFTH SUPPLEMENTAL RESPONSE TO PLAINTIFF'S RULE 194 REQUEST FOR DISCLOSURES AND EXPERT WITNESS DESIGNATION TO: PLAINTIFF WILMA S. CLARK, INDIVIDUALLY and as PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF HOWARD HAROLD CLARK, DECEASED, by and through her attorneys of record, Holly J. W. Huart and/or Stephanie Finch, Baron & Budd, The Centrum, Suite 1100, 3102 Oak Lawn Avenue, Dallas, Texas 75219. COMES NOW RME PETROLEUM COMPANY, f/k/a Union Pacific Resources Company f/k/a Champlin Petroleum Company, Individually and as Successor by Merger to Pontiac Refining Corporation, and makes this its Fifth Supplemental Response to Plaintiffs Rule 194 Request for Disclosures (e) and (f) and Expert Witness Designation, in accordance with Rule 194.2(f) of the Texas Rules of Civil Procedure. CSV 494375.1 REQUEST FOR DISCLOSURES (e) the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person's connection with the case; (f) for any testifying expert: (1) the expert's name, address, and telephone number; (2) the subject matter on which the expert will testify; (3) the general substance of the expert's mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information; (4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party: (A) all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the experts testimony; and (B) the expert's current resume and bibliography; SUPPLEMENTAL RESPONSE: 1. John Pendergrass, CIH, CSP, PE 6700 Milkhouse Court Mobile, Alabama 36695 (334) 607-0946 Mr. Pendergrass is a certified industrial hygienist who will testify from an industrial hygiene point of view the state of the medical and scientific knowledge regarding asbestos particularly in regard to the time period involved during which the Plaintiffs Decedent was allegedly on the premises of Defendant in this case. The subject matter will also include the use of asbestos during this time period, its importance, the lack of substitute products, and the employer's responsibility preand post-OSHA. He will also testify that based on the state of the knowledge and judgment as it has developed over time that Champlin acted appropriately in the circumstances. The general substance of Mr. Pendergrass' opinions, and his C.V. and bibliography, have previously been provided to Plaintiffs counsel. See also his deposition testimony, given on April 20, 2001, and deposition Exhibits 1 and 2 attached. Mr. Pendergrass had been provided depositions of Howard Harold Clark, Jim Tansey, Brack Routh, Joe Gay and Jim Kucera, as well as Plaintiffs responses to written discovery. CSW'494375.I -2- 2. Patrick M. Conoley, M.D. Kelsey-Seybold Clinic, Radiology Department 6624 Fannin, Suite 1800 Houston, Texas 77030 (713) 791-8787 The subject matter on which Dr. Conoley will testify, the general substance of Dr. Conoley's mental impressions and opinions, a brief summary of the basis for his opinions, and the documents and things that have been provided to Dr. Conoley are described and included in his Amended Narrative attached hereto as Exhibit "A." Respectfully submitted. CRAIG S. WOLCOTT State Bar No. 21845475 400 Two Allen Center 1200 Smith Street Houston, Texas 77002 (713)654-1111 (Telephone) (713) 650-0027 (Telecopier) Attorneys for Defendant RME PETROLEUM COMPANY, F/K/A UNION PACIFIC RESOURCES COMPANY, F/K/A CHAMPLIN PETROLEUM COMPANY, INDIVIDUALLY AND AS SUCCESSOR BY MERGER TO PONTIAC REFINING CORPORATION CSWM94375.1 -3- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument has been forwarded to counsel for Plaintiffs by facsimile, certified mail, return receipt requested, Federal Express and/or hanck delivery, and to all other counsel of record by regular mail, onjjhis---^-day of _, 2001. CSW 494375.1 -4- 04/28/01 Amended Narrative Records Medical records and radiographs on Howard Harold Clark were submitted for review by Craig S. Wolcott. These include: 1) PA and Lateral Chest radiographs from and unknown location dated 8/10/87 2) PA and Lateral Chest radiographs from Internal Medicine & Oncology Associates dated 10/20/88 3) PA and Lateral Chest radiographs from the VAMC Pensacola dated 2/21/92 4) PA and Lateral Chest radiographs and report-from Providence Outpatient Diagnostics, Mobile, AL dated 4/20/93. 5) PA and Lateral Chest radiographs from Pensacola Lung Group dated 5/1/93. 6) PA and Lateral Chest radiographs from Mobile Diagnostic Center dated 8/9/93. Radiographic Findings In the earliest study of 1987, the heart appears normal. There is mild uncoiling of the thoracic aorta. The lungs are hyperinflated. There is no evidence of pulmonary fibrosis. There is visualization of smooth extrapleural tissues superoposteriorly on the right chest wall, which is a common normal anatomic variation. There is an area of linear scarring in the right apex, suggesting prior tuberculosis. There is no evidence of pleural plaques or calcifications. By the study of 2/21/92, there is mild wedge compression of one of the lower vertebral bodies, I believe T-12. No new finding is seen in the subsequent films. The right apical scarring is stable over the course of examinations. Impression Chronic obstructive pulmonary disease. Right apical scar suggesting old tuberculosis. Right extrapleural line, most likely a normal anatomic variation. CAUSE NO. 98-317-G WILMA S. CLARK, Individually and as Personal Representative of the Heirs and Estate of HOWARD HAROLD CLARK, Deceased : IN THE DISTRICT COURT : OF NUCES COUNTY, TEXAS VS. UNION PACIFIC RESOURCES COMPANY, et al 319th JUDICIAL DISTRICT COMPLIMENTARY CONDENSED TRANSCRIPT WITH CONCORDANCE AND COMPLIMENTARY ASCII, WORDPERFECTTM AND AMICUSTM DISK OF VOLUME 1 ORAL DEPOSITION OF JOHN A. PENDERGRASS, CIH, CSP, PE APRIL 20, 2001 ^ W W W ^ * W? w EXHIBIT 1 -j*. & ' 'i Rutledge/Cjray 'Reporting'Service# Certified Shorthand Reporters Registered Professional Reporters Certified Realtime Reporters * 1.800.876.3370 * Metro 817.794.1747 *972.222.4003 Fax 972.222.6229 email: rutledge@airmail.net website: http://www.texasreporters.com APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G 1 CAUSE HO. 98-317-G 2 WILMA S. CLARK, Individually ) IH THE DISTRICT COURT and aa Personal Representative ) 3 of the Heirs and Estate of ) HOWARD UAROLD CLARK, Deceased I 4> ) OP NUECES COUNTY, TEXAS 5 VS. 6 ) ) ) UNtOff PACIFIC RESOURCES ) 7 COMPANY, et al ) 319TH JUDICIAL DISTRICT 8 9 ******************************************** 10 ORAL DEPOSITION OP 11 JOHN A. PENDERGRASS, CIH, CSP, PE April 20, 2001 12 ***** ******************* ******************** 13 14 15 ORAL DEPOSITION OP JOHN A. PENDERGRASS, CIH, CSP, 1C PE, produced as a witness at the instance of the 17 Plaintiff, and duly sworn, was taken in the above-atyled 18 and -numbered cause on the 20th day of April, 2001, from 19 9:19 a.a. to 3:56 p.n., before Debra ftaos Isbell, CSR, 20 RDR, and CRR in and for the State of Alabama, reported 21 by machine shorthand, at the Hampton Inn, 5478 Inn Road, 22 Mobile, Alabama, in accordance with Third Amended Notice 23 of Taking Oral Deposition, and pursuant to the Texas 24 Rules of Civil Procedure and the provisions stated on 25 the record or attached hereto. Page l 1 INDEX 2 Appearances................. ..................................... 3 Stipulations................................................... . 4 JOHN A. PENDERGRASS, CIH, CSP, PE Examination by Mr. Barlow. b Signature and Changes............................. . 6 Reporter's Certificate............................ 7 9 EXHIBITS 10 DESCRIPTION 11 1................................................... Curriculum Vitae of John A. Pendergrass, 12 CIH, CSP, PE (Three pages) 13 2 .......................................................................................... ChconoLogy of Asbestos Regulations Ln 14 the "J.S. Workplace (34 page) 15 16 REQUESTED DOCUMENTS/INFORMATION 17 (None) 18 19 20 21 22 23 24 25 2 4 4 192 19* PAGE zs 169 Page 3 1 APPEARANCES 2 3 FOR THE PLAINTIFF, WILMA S. CLARK, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF 4 HOWARD HAROLD CLARK, OSCBASBD: Alex Barlow, Esq. 5 BARON BUDD, P.C. 3102 OaJc Lawn Avenue 6 The Centrum Building, Suite 1100 Dallas, Texas 75219-4281 7 214.521.3605 214.520.1181 - Fax 8 email: abarlow8baronbudd.com 9 10 FOR THE DEFENDANTS, UNION PACIFIC RESOURCES COMPANY, ET 11 AL: Craig s. Wolcott, Esq. 12 HAYS, KcCONN, RICE PICKERING 1200 Smith Street 13 Suite 400, Two Allen Center Houston, Texas 77002 14 713.654.1111 713.650.0027 - Pax 15 email: cvolcottShaysmcconn.coa 16 17 18 19 20 21 22 23 24 25 Page 2 PROCEEDINGS Page 4 JOHN A. PENDERGRASS, CIH, CSP, PE 3 having been first duly sworn, testified as follows: 4 MR. BARLOW: Put on the record, that 5 this deposition will be taken pursuant to the Texas 6 Rules of Civil Procedure, and all objections save to the 7 form of the question and the responsiveness of the 8 answer will be preserved until the time of trial. 9 Right? 10 MR. WOLCOTT: Well, he's being 11 presented under the Texas Rules of Civil Procedure. 12 MR. BARLOW: Right. 13 MR. WOLCOTT: I think anything you say 14 to the contrary, we're not agreeing to. 15 MR. BARLOW: I don't think I said 16 anything to the contrary. 17 MR. WOLCOTT: Well, sometimes lawyers 18 will say "Objections are waived," and that's certainly 19 not the ease here. 20 EXAMINATION 21 BY MR. BARLOW: Q. Good morning, Mr. Pendergrass. 23 A. Good morning. 24 Q. My name is Alex Barlow. I don't know if I 25 properly introduced myself. And I need to ask you a few RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 1 - Page 4 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, Cffl, CSP, PECAUSE NO. 98-317-G Page 5 Page 7 1 questions about the opinions that you're going to be 2 offering in this case. 1 A. About that, yes. 2 Q. And when you say you're a consultant in 3 I understand that you've given 3 industrial hygiene, what sorts of things do you consult 4 depositions before; is that correct? 4 on? 5 A. That's right. 5 Can you be more specific? 6 Q. And so I'm sure you kind of know how this 6 A. Well, it might be an evaluation of conditions 7 will work. But so we're clear, I'm going to ask you 7 in a plant. Certainly there's the litigation aspect. 8 questions. 8 You know, whenever people will call that I feel like 9 You need to answer audibly so that the 9 that I can be competent in responding to. 10 court reporter can get it on the record. You and I, if 10 Q. How long have you been consulting in this 11 we shake our heads "yes" or "no," we know what we're 11 manner? 12 saying, but the record won't reflect it. 12 A. T guess, close to 12 years now. 13 Is that okay? 13 Q. Close to 12 years? Over that 12 years, have 14 A. That's fine. 14 you been semi-retired, consulting only half-time? 15 Q. I will try to also remember to not talk over 15 A. No. I guess for the first eight or nine 16 you in your answers. And if you could please wait for 16 years, it was pretty much full-time. 17 me to finish my questions, so the record will be clean. 17 Q. You said that in your consulting, there was a 18 A. Right. 18 litigation aspect, and there was also an aspect where 19 Q. That will help. And finally, if you need to 19 you may go evaluate plants or, I guess, worksites for 20 take a break at any time, just let me know, and we'll do 20 industrial hygiene conditions. 21 that. 21 Can you divide up -- how much of your 22 I usually like to take a break about time is spent doing litigation consulting? 23 every hour or so for about five minutes. Everybody 23 A. Well, it would be the majority of the time 24 stretch their legs, anyway. 24 now. 25 If you need to take a break before that 25 Q. So the majority of your consultations now are Page 6 Page 8 1 for any reason, just let me know, and we will. I'd only 1 litigation related? 2 ask that if there's a question pending, you answer that n A. Right. 3 question, and then we can take the break. 3 Q. What sorts of litigation do you consult in? 4 Mr. Pendergrass, where do you currently 4 Obviously, asbestos. 5 reside? 6 A. Mobile, Alabama. 5 A. There's no specific line. It would be 6 generally what me plaintiir may have been exposed to, 7 Q. And how long have you lived here? 8 A. Not quite three years. 7 or where they may have worked. 8 It might be asbestos; it might be lead; 9 Q. What brought you to Mobile? 10 A. We were looking for a place to move, sort of 9 it might be benzene, other hydrocarbons. 10 Q. Let me ask you this: Over the last, say, - 11 semi-retirement. 12 Q. You and your wife? 11 well, over the last 12 years, can you tell me all the 12 types of cases you can think of that you've consulted 13 A. Yes. 13 in? 14 Q. You said you're "semi-retired." What do you 14 A. Types of cases? 15 do these days? 15 Q. And by "types," I mean asbestos or benzene, 16 A. I'm a consultant, industrial hygiene and 16 the types of exposures you were evaluating on behalf of 17 occupational health and safety. 17 defendants. 18 Q. You said you were semi-retired. How many 18 A. I don't think I could be very accurate on 19 hours a week are you working as a consultant in 20 industrial hygiene now? 19 those. It would just be a guess, an estimate. But 20 asbestos, lead, benzene, chlorinated hydrocarbons, 21 A. It probably averages two or three days a 22 week, something on that order. 21 accidents. Q. Is there anything else you can think of? 23 Q. Eight hours a day? 23 A. Not right off. 24 A. Yes. Pretty much. 24 Q. I understand you can't think of everything 25 Q. So you're working about half-time now? 25 offhand. RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 5 - Page 8 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, Cffl, CSP, PECAUSE NO. 98-317-G Page 9 Page 11 1 A. It's been a very broad area. 1 A. It was very early on, yes. I don't remember 2 Q. You said accidents. What sorts of accidents? 2 whether it was the first one or not. 3 A. Well, one involved injuries that resulted 3 Q. But it would have been around '90 or '91? 4 from firefighting. Another one was a case where two 4 A. Somewhere in that order. 5 women were killed when a tree fell across -- was chopped 5 Q. So you began consulting in asbestos 6 down, and fell across the road and hit their car. 6 litigation around '90 or '91? 7 Q. Fell on top of the car? 7 A. I think that's correct, yes. 8 A. Yeah. 8 Q. Do you remember who was the first company 9 Q. That's unlucky. 9 that retained you to testify in asbestos litigation? 10 A. Very. 10 A. No, I don't. 11 Q. Have you ever consulted on behalf of a 11 Q. Can you tell me all the companies you recall 12 plaintiff in litigation? 12 testifying on behalf of? 13 A. That one was a plaintiff. 13 A. No. I couldn't. 14 Q. The one where the tree fell on the car? 14 Q. Can you name as many as you can right now off 15 A. Yeah. There have been a couple others. 15 the top of your head? 16 Q. Can you tell me how many times you've 16 A. You're saying -- well, see, sometimes -- 17 consulted on behalf of a plaintiff? 17 okay. You said "the company." General Refractories was 18 A. Well, it has not been very many. I would 18 one; Shell; Texaco; Ethyl Corporation; of course, this 19 probably say less than a half a dozen. 19 case; Coastal: one of the railroads, Kansas City 20 Q. How many times over the last - or I guess, 20 Railroad. I can't remember the exact name of it. 21 how many times over the course of your career have you 21 Q. A railroad in Kansas City? Kansas City 22 consulted on behalf of defendants in litigation? 22 Railroad? 23 A. I have no idea. 23 A. Yeah. It's Kansas and something else. I 24 Q. Would it be much more than a half a dozen? 24 think that's about all I can -- did I say Texaco? 25 A. Yeah. But I still -- I know you're going to 25 Q. You did. So we have, as far as companies Page 10 Page 12 1 ask, "Is it more than 10? Is it more than 20?" 1 you've testified on behalf of in asbestos litigation, 2 I don't really know. Whatever I would 2 GeRefCo -- 3 say, would be a guess. 4 Q. Is it safe to say, the great majority of the 3 a. Oh. I'm sorry. I'm not sure all of those are 4 asbestos. Those are just companies, just general. 5 cases you consult in, you're consulting on behalf of 5 Q. Let me ask it this way, then, so the record 6 defendants? 6 will be dear. 7 a. Yes. 7 As far as companies you've testified on 8 Q. Do you remember when it was that you first 8 behalf of in litigation generally, we have GeRefCo, 9 began consulting in litigation? 9 Shell, Texaco, Ethyl Corporation, Coastal, and a 10 a. Sometime after 1989. Probably'90,'91, 11 somewhere along in there. 10 railroad, Kansas and something else railroad? 11 a. You said "testified." I have not been to 12 Q. What were the first cases that you began 12 court in all of those, by any means. 13 consulting in? Were they asbestos cases? 13 Q. Consulting? 14 a. No. I think the first case involved lead. 14 a. I'm talking about depositions. 15 Q. So the first case you consulted in in 15 Q. You've given depositions in those? 16 litigation, was a lead case? 16 a. Or have been contacted. Because a lot of 17 a. And that was a plaintiff case. 17 them have settled without depositions, without -- 18 Q. And it was a plaintiff case. 18 Q. Let's do it this way: Companies you've 19 ` Did you sometime after that begin 19 consulted on behalf of that you can recall as you sit 20 consulting in asbestos litigation? 20 here today. 21 A. Sometime after that, yes. 21 a. Consulted, yeah. That's all I can -- 22 Q. I saw a deposition that you gave in 1991 in 22 Q. So the record is clear -- 23 Illinois. 23 a. Penelec is another one; Pennsylvania 24 Would that have been your first 24 Electric; and Duquaine Light. 25 deposition in asbestos litigation? 25 Q. Duquaine Light? RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 9 Page 12 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G Page 13 Page 15 1 A. Uh-huh. 2 Q. Any more? 3 A. I might think of some others as we go along. 4 Q. Do you by chance keep a list of the companies 5 that you've testified or consulted on behalf of? 6 A. No, I don't. 7 Q. Is there any way, if you wanted to go back 8 and compile a list, that you could? 9 A. Not with a great deal of accuracy, no. 10 Q. Do you keep records of your bills to 11 companies that you consult for in litigation? 12 A. I keep a record of whoever my client is. And 13 this would be the law firm generally, not who they are 14 representing. 15 Q. If I asked you what law firms you've 16 consulted on behalf of in litigation, could you tell me 17 that? 18 A. Well, that's going to be pretty much the same 19 situation with the companies that I have consulted with. 20 But of course, Hays, McConn, Rice & 21 Pickering. Also, Baker & Budd, isn't it? 22 MR. WOLCOTT: Botts. 23 A. Baker & Botts. One down in Beaumont, Martin 24 is the one that I have worked with. 25 MR. BARLOW: 1 list of these, so it's hard to -O Q. AH right. Let's just go ahead and clean up 3 the record. And if you think of some, then you can teU 4 tne later on. 5 So as far as companies that you've 6 consulted on behalf of in litigation, we have GeRefCo, 7 Shell, Texaco, Ethyl Corporation, Coastal, Kansas and 8 something railroad, Pennsylvania Electric, Duquaine 9 Light, Baltimore Gas & Light; is that correct? 10 A. Yeah. And Phelps, Dodge is another one. 11 Q. Anything else right now? 12 A. No. 13 Q. And then as far as law firms you've consulted 14 for that you can recall today, there's Hays, McConn, 15 Rice & Pickering; Baker Botts; Jenkins, Grove & Martin; 16 you consulted for an attorney named Mr. Israel in 17 Philadelphia? 18 A. Yeah. It's Israel and something now. 19 Q. The Beauchamp law firm? 20 A. Again, he's one of a group of partners. 21 Q. And Zimmerman, Koons. Any other law firms OO you can think of right now? 23 A. Not at the moment. 24 I'll add one, because you folks were 25 there. Atkinson, Perry, Atkinson and something else in Page 14 Page 16 1 Q. Is it a law firm that Martin is part of the 2 name? l Baton Rouge. "> Q. Do you remember what kind of case that was? 3 A. Yeah. Martin is a part of their name. 3 A. I think that was asbestos. 4 MR. WOLCOTT: Jenkins & Martin? 4 Q. It was an asbestos case? When you were 5 THE WITNESS: Three names. 5 consulting for Hays -- well, I guess you are consulting 6 MR. WOLCOTT: Jenkins, Grove & Martin? 6 for Hays, McConn, Rice & Pickering right now? 7 THE WITNESS: Yeah. Kirk. 7 A. Right. 8 MR. WOLCOTT: Kirk Martin? 8 Q. They're the Defendants in this case? 9 THE WITNESS: Yeah. 9 A. Right. 10 A. Israel, a firm in Philadelphia. 10 Q. Have you ever consulted for them when they 11 MR. BARLOW: 11 were representing the plaintiffs? 12 Q. Mr. Israel? 12 A. 1 don't think so. 13 A. Yeah. 13 Q. When you were working with Baker Botts, were 14 Q. I believe I remember him from a past 14 they representing the defendants or the plaintiffs? 15 deposition. 15 A. As I recall, they were. 16 A. The Beauchamp firm in St. Louis. And that's 16 Q. The defendants? 17 another three- or four-name firm. Zimmerman, Koons in 17 A. The defendants. 18 Philadelphia -- not Philadelphia, Pittsburgh. There's a 18 Q. When you were consulting for Jenkins, Grove & 19 firm in Philadelphia, six or seven names. 19 Martin, were they working on behalf of the plaintiffs or 20 I've done some work for Baltimore Gas & 20 the defendants? 21 Light. 21. A. I think that was a defendants case also. 22 Q. That would be a company that you consulted Q. And I believe when you were working with Mr. 23 for? 23 Israel, he was representing GeRefCo? 24 A. Yeah. And I'm trying to remember now who 24 A. Right. 25 their attorney was. Not Angelo. Again, I don't keep a 25 Q. They were defendants? RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Paae 1 3 - 1 6 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 17 Page 19 1 A. Yes. 1 the ones that come to mind right away. 2 Q. And when you were consulting for Mr. 2 Q. As you sit here right now, other than the 3 Beauchamp, he was representing defendants or plaintiffs? 3 case where you consulted on behalf of the people who had 4 A. Defendants. 4 the tree fall on them, can you think of any other cases 5 Q. And when you were consulting with the 5 where you consulted on behalf of an individual who had 6 Zimmerman, Koons law firm, w^. e they representing the 6 been injured? 7 plaintiffs or the defendants? 7 A. There was a case of a fire in a refinery. 8 A. That is defendants also. 8 There were people injured. And I testified as to the 9 Q. Tell me about the cases that you've consulted 9 actions of the Fire Chief, which I thought were not 10 on behalf of plaintiffs. You said there were less than 10 appropriate. 11 half a dozen. 11 Q. Were you consulting on behalf -- or 12 You said you consulted on behalf of 12 testifying on behalf of the people who were injured? 13 some people who were injured, or hurt when a tree fell 13 A. You know, I just don't remember the details 14 on their car? 14 of it. But 1 guess that had to be what it was because I 15 A. Right. This was a case in Louisiana. The 15 was asked to evaluate in general the activities of the 16 defendant had arranged -- or had purchased timber off of 16 Fire Chief, in general as well as specifically at that 17 a plot of land, and they contracted out to have somebody 17 fire. 18 else actually cut it. 18 Q. Do you know whether or not you were maybe 19 And in cutting the timber, they dropped 19 consulting with an insurance company over an insurance 20 a tree across the highway at a yery inopportune time. 20 dispute, or you're pretty sure that you were testifying 21 Q. Surely. How was it that you were qualified 21 on behalf -- 22 to give expert testimony in that case? 22 A. 1 don't think it involved an insurance 23 A. Well, I'm a Certified Safety Professional. 23 company at all. but that 1 can't be sure. I don't think 24 And also the fact that I was knowledgeable as far as 24 it was. 25 certain regulations were concerned. 25 Q. So you think you may have been testifying on Page 18 Page 20 1 Q. So part of your training included safe 1 behalf of the people who had been burned in that fire? 2 practices in the taking of timber? 2 A. Well, f can only say what I have said with 3 A. Not specifically that, but safe practices. 3 regard to it. It was the training that had been 4 And that is a part of it. 4 provided as well as the activities that occurred at the 5 There was really just not much reason 5 time of the fire. 6 for falling a tree across the road any time. 6 Q. Do you know how many depositions you've given 7 Q. You probably don't have to be an expert to 7 in asbestos litigation? 8 know that. 8 A. No, [don't. 9 A. Not too much. 9 Q. Has it been more than the one I've seen 10 Q. Can you tell me any of the other cases that 10 previously? 11 you consulted as a plaintiff? 11 A. Well, I don't know what you saw. 12 A. Well, 1 mentioned the lead case. And this 12 Q. Well, I'll tell you. I've only seen one 13 was two companies arguing over whether they should cover 13 prior asbestos deposition of yours. 14 a certain -- whether they should have covered a claim 14 It was a 1991 deposition when you were 15 that was made by the company that I was representing. 15 consulting for Mr. Israel. Have there been other 16 Q. So one of your plaintiffs cases was one 16 asbestos depositions? 17 company suing another company -- 17 A. Oh, yes. 18 A. Yeah. 18 Q. How many other asbestos depositions -- 19 Q. -- over -- 19 A. That I could not estimate. 20 A. An insurance claim. 20 Q. Can you tell me if it's more than five? 21 Q. -- an insurance claim. 21 A. It's more than 5; it's less than 100. And I 22 Can you tell me about any of the other 22 don't know what it was in between there. 23 cases where you've consulted on behalf of the 23 Q. You knew where I was going with that. More 24 plaintiffs? 24 than 5; less than 100. 25 A. I'll have to think about that. Those two are 25 Can you tell me how many times a year RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 17 - Page 20 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 21 Page 23 1 you give deposition testimony on average? 1 year, how would you go about compiling that list? 2 A. Again, that would be just a wild guess. I 2 A. Well, I'd have to go back -- probably start 3 don't know. 3 with my invoices, and try to determine what's in Federal 4 Q. Less than ten? 4 Court, and what isn't in Federal Court, and whether or 5 A. I would say yes, less than ten. 5 not I was deposed. 6 Q. More than five? 6 Q. If you were asked to compile a list of all of 7 A. You know, it's going to vary from one year to 7 your testimony that you've given in the past, would you 8 another. So I don't really know. 8 be able to do that? 9 Q. How many depositions have you given so far 9 A. With some degree of accuracy. But again, I 10 this year? 10 would have to just go back to invoices. 11 A. Two or three, I guess. 11 Q. You say you began consulting in litigation 12 Q. What kind of cases were they in? 12 about, what? Ten years ago? 13 A. I think they've all been asbestos. 13 A. Well, 1 began consulting in '89, which would 14 Q. All on behalf of the defendants? 14 have been 12 years ago. 15 A. Yes. 15 Q. '89. I said "consulting in litigation." 16 Q. Do you remember the companies that you were 16 A. I was going to say yeah, it's been probably 17 consulting on behalf of in these depositions? 17 in the order of ten years ago. 18 A. No. 18 Q. Over the last ten years, can you tell me what 19 Q. What about last year? How many depositions 19 percentage of your time has been spent consulting in 20 did you give? 20 litigation? 21 A. That, again, I couldn't say. I don't know. 21 A. No. 22 Not a whole lot. 22 Q. You say now, the majority of your consulting 23 Q. Was it more or less than ten last year? 23 is litigation related, correct? 24 A. I would say yes, it's less than ten. 24 A. That's correct. 25 Q. Was it more or less than five last year? 25 Q. Last year, wasthe majority of your Page 22 Page 24 1 A. Again, this is going to be just an estimate. 2 I would say probably less than five, but I don't know 3 for sure. 4 Q. Several, but probably not more than five? 5 A. I think that's fair. 6 Q. And I guess if I ask you for the year before 7 last, 8 A. You're going to get the same answer, because 9 I just don't keep that kind of a record. I don't try 10 to. So I cannot really give you anything definitive. 11 Q. You don't keep records of the depositions 12 that you give? 13 A. No. 14 Q. Sometimes when a witness is designated in 15 Federal Court to testify, they have to produce a list of 16 their prior testimony. 17 Have you ever been asked to do that 18 before? 19 A. I think yes, that I did one time. 20 Q. Do you remember when that was, approximately? 21 A. No. 22 Q. Do you think you still have that list? l consulting, litigation related? 2 A. Yes. 3 Q. Could you give me a percentage of your 4 consulting time that was spent in litigation-related 5 matters last year? 6 A. I think I better stick with saying the 7 majority because I've not even tried to think about 8 that. 9 Q. Last year were you working about 20 hours a 10 week like you are now? 11 A. Something in that order, yes. Maybe not 12 quite as much. 13 Q. Out of any given week last year, how many 14 hours would you spend in litigation-related consulting? 15 A. Well, obviously it's going to be the majority 16 of the time. I don't know. I'd have to go through and 17 do a whole lot of arithmetic to try to come up with it. 18 Q. How long has the majority of your consulting 19 been litigation related? 20 A. Oh, probably the last six or seven years. 21 Q. Prior to the last six or seven years, how 22 much of your time -- your consulting was litigation 23 A, No. I don't know. I haven't seen it lately. 24 Q. If you were going to try to make one of those 23 related? 24 A. Again, depending on -- well, I started to say 25 lists, say you were designated in Federal Court this 25 '91. At that time, maybe 50/50. Again, this is a RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 21 - Page 24 APRIL 20, 2001 WILMA S. CLARK YS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 25 1 guess, an estimate. 2 Q. So in your best estimate, starting ten years 3 ago until six or seven years ago, about half of your Page 27 l published in the American Industrial Hygiene Association O Journal? 3 A. Not really. Three or four, five. Maybe a 4 time was spent consulting in litigation? 5 A. Something on that order, yes. 6 Q. And for the last six or seven years the 7 majority of your consulting has been litigation related? 8 A. Right. 9 MR. WOLCOTT: Did you bring this, 10 (indicating), the chronology? 11 MR. BARLOW: Yes. 12 MR. WOLCOTT: Did he bring it? 13 MR. BARLOW: Yes, he brought it. 14 That's his. 15 MR. WOLCOTT: Can I see it for a 16 second? 17 (DOCUMENTS HANDED TO COUNSEL) 18 MR. BARLOW: Let's go ahead and mark 19 his CV as Exhibit 1. 20 (DEPOSITION EXHIBIT NO. 1 MARKED) 21 Q. (BY MR. BARLOW) Mr. Pendergrass, I'm marking 22 as Exhibit I, a curriculum vitae that I believe you 23 brought with you; is that right? 24 A. That's correct. 25 Q. And is this curriculum vitae up to date? 4 half a dozen. 5 Q. Let me ask you this: How many times have you 6 published on the subject of asbestos? 7 A. 1 don't think I ever have. 8 Q. You've never published on the subject of 9 asbestos? 10 A. No. 11 Q. Have you ever lectured on the subject of 12 asbestos? 13 A. No. 14 Q. Have you ever taught any courses on the 15 subject of asbestos? 16 A. "Courses," you mean like for students coming 17 in? 18 Q. Right. 19 A. No. 20 Q. Was it ever a part of your work to teach 21 safety courses perhaps at a -- well, anywhere? A. Yes. As the Director of Industrial Hygiene 23 at 3M Company, and as an Industrial Hygienist at Boeing 24 and at American Cyanamid, part of my responsibility was 25 to train workers in a variety of subjects, mostly on Page 26 Page 28 1 A. Yes. O Q. To the best of your knowledge, is this 3 curriculum vitae complete? It has all of your work 4 history on it, I guess? 5 A. Yes. 6 Q. There's a section here entitled "Publications 7 In." 8 A. Yes. 9 Q. Does this list all of your publications? 10 A. It lists where they were published. 11 Q. Where they were published. So I see here the 12 first line says, "Publications in American Industrial 13 Hygiene Association Journal." 14 Do I take that to mean, there may have 15 been more than one? 16 A. Yes, there's been more than one. 17 Q. If I wanted to get a list that actually told 18 me which articles you've published in the past, does 19 that exist? 20 A. A single list? 1 industrial hygiene aspects of it. n And asbestos could well have been one 3 oftlio.se. (t probably was at some time. 4 Q. Okay. Other than your work as an Industrial 5 Hygienist at 3M, Boeing, and American Cyanamid, have you 6 ever been called upon to teach? 7 A. Teach anywhere? 8 Q. Yes. 9 A. No, not really. 10 Q. When you were at Boeing, 3M, and American 11 Cyanamid, at any of those places, did any of your 12 teaching concern asbestos? 13 A. Well, as 1 just said, I cannot specifically 14 say one. But I'm sure that it must have involved 15 asbestos at some point. 16 Probably not at Boeing or at American 17 Cyanamid, but perhaps at 3M. 18 Q. You're thinking maybe some of the training 19 you did at 3M, you may have included asbestos as an 20 aspect of it? 21 Q. Yes. 22 A. Ho. 23 Q. Have you ever compiled such a list? 21 A. Yeah. Q. You say you've never lectured on the issue of 23 asbestos? 24 A. No. 24 A. Other than what we've just talked about. 25 Q. Do you know how many articles you've 25 Q. Other than maybe it was included in one of RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 25 - Page 28 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 29 Page 31 1 your safety meetings at 3M? 2 A. Well, at some point. 1 when I was at the Labor Department, but I'm not positive O about that. 3 Q. Have you ever given any lectures for the DRI? 3 (DOCUMENTS HANDED TO COUNSEL) 4 A. I don't know what DRI is. 4 Q. The "Environmental Law Reporter," is that 5 Q. The Defense Research Institute? 5 peer reviewed? 6 A. No. 6 A. I don't think so. 7 Q. What about the Toxic Tort Institute? Have 7 Q. Do you remember what you published in the 8 you ever heard of them? 8 "Environmental Law Reporter"? 9 A. No. 9 A. Yes. That was a paper that I co-authored 10 Q. Is there anything that you have published 11 that's not listed where it was published on your CV? 10 with my son, on a proposal for EPA to provide 11 recognition to organizations that had done an 12 A. I think that includes everything. 12 outstanding job in environmental controls. 13 Q. Have you submitted anything for publication 13 Q. So it was an article on a proposal for the 14 right now that just isn't published yet? 14 EPA to give out some kind of award or recognition? 15 A. Not right now. 15 A. Similar to what OSHA does with the Star 16 Q. Have you ever submitted anything for 16 Award. 17 publication in the peer-reviewed literature, and had it 17 Q. And you say you authored that with your son? 18 rejected or sent back for revisions? 18 A. Yes. 19 A. No. 19 Q. Your son is an attorney? 20 Q. And I take it that some of these publications 20 A. Yes. 21 listed here are in peer-reviewed journals? 21 Q. Where does he practice? 22 A. Some are; some are not. A. The Environmental Law Institute in 23 Q. We'll go ahead and go through that. 23 Washington. 24 The "American Industrial Hygiene 24 Q. What does the Environmental Law Institute do? 25 Association Journal," is that peer reviewed? 25 A. It's a think tank type of organization which, Page 30 Page 32 1 A. Yes, it is. 2 Q. The "American Public Health Association 1 of course, deals with the environment, environmental n laws. 3 Journal," is that peer reviewed? 3 They have their publications. They 4 A. Yes, it is. 4 conduct research projects; they conduct seminars. 5 Q. The "Journal of Occupational Health .'i 5 Normal things that think t*'nk types of institutes do. 6 Safety," is that peer reviewed? 7 A. That I'm not sure. 6 (J. What is your son's job within the 7 Environmental Law Institute? 8 Q. The "International Encyclopedia of 8 A. I think he has about ten titles, titles 9 Occupational Health and Safety," is that peer reviewed? 10 A. Yes. It was. That was one publication. 9 rather than money. He is Director of State 10 Environmental Activities; he has conducted seminars for 11 Q. "Sampling and Analysis of Toxic Organics in 11 judges in Brazil and India, as well as in this country; 12 the Atmosphere, ASTM, 721, Chapter Author," was that 12 and I guess he's the one who manages their research 13 chapter a peer-reviewed chapter? 13 associates. 14 A. I'm sure it was. 14 Just generally, environmental laws in 15 Q. "Labor Law Journal," was that peer reviewed? 16 A. I doubt it. 17 Q. What is the "Labor Law Journal"? 15 this country, as well as around the world. 16 Q. Does the Environmental Law Institute conduct 17 any lohbying? 18 A. It's a journal that's put out by the labor 19 lawyers. 20 Q. Do you remember what you published in the 18 A. No. 19 Q. Who funds the Environmental Law Institute? 20 A. They have a membership, as well as they are 21 "Labor Law Journal"? 21 dependent, I think, on contributions from individuals, 22 A. I don't remember right now. Let me see companies, organizations, as well as they generate some 23 something here. I might be able to Figure this out. 23 funds from their seminars and courses. 24 (DOCUMENTS HANDED TO WITNESS) 24 Q. Is the Environmental Law Institute, 25 I can't remember now. 1 think that was 25 affiliated with industry? RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 29 - Page 32 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G Page 33 Page 35 1 A. No. 2 Q. Going back to your publications, it says you 1 A. It was a corporation that we were trying to n develop systems for indoor air quality control. We were 3 have a chapter that you co-authored in a publication 3 not successful. 4 entitled "Industrial Hygiene Management." 4 Q. There's a gap between 1996 and 1998. What 5 A. Yes. 5 were you doing those two years? On your CV, there's a 6 Q. Was that a peer-review\.a publication? ; gap. 7 A. Not in the sense that, say, the Journal is. 7 A. Let me look. 8 Of course, it goes by different editors. 8 Q. Or am I missing something? 9 But I don't think in the same sense, 9 A. Well. yeah. See, the consulting of 10 it's a peer-reviewed article, no. 10 Pendergrass is 1989 to 1998. These are in addition to. 11 Q. You have a chapter in "Occupational Injuries 11 Q. I see. I didn't look down far enough. So 12 and Illnesses." Was that a peer-reviewed publication? 12 Pendergrass Associates, was that a consulting firm? 13 A. That would come under the same category as 13 A. Yes. 14 the other one. It was a publication primarily for 14 Q. So from '89 to '98, you were consulting. I 15 physicians. But as being peer reviewed, I doubt it. 15 guess from '96 to -- or to the present -- 16 Q. And then you have a chapter in the "American 16 A. I closed all that down, and it's just 17 Industrial Hygiene Association History." 17 individual after that. 18 A. Yes. 18 Q. 1 understand that. So the record is clear, 19 Q. Is that a peer-reviewed publication? 19 because I messed up, from 1989 to 1998 and even until 20 A. No. 20 today, you were consulting? 21 Q. What is the "American Industrial Hygiene 21 A. Right. 22 Association History"? Q. I guess in 1998, you cut back to go part-time 23 A. They decided -- I don't know, it must have 23 with your consulting? 24 been several years ago -- that there should be some 24 A. Right. 25 history of the association. And they asked a number of 25 Q. But in addition to your consulting, from 1994 Page 34 Page 36 1 the still-living past presidents to write chapters. 2 Q. Are you a former president of the Industrial 1 to 1996, you were working for the American Service n Corporation? 3 Hygiene Association? 3 A. Right. 4 A. Yes. 4 Q. Was this a business venture on your part, the 5 Q. When were you president of the Industrial 5 American Service Corporation? 6 Hygiene Association? 6 A. With other people. 7 A. 1974/75. 7 Q. And from 1986 to 1989, you were with the 8 Q. Help me out here. The Industrial Hygiene 8 Labor Department as Assistant Secretary of Labor? 9 Association, did it go by other names previously? 9 A. That's right. You might add, for the 10 A. No. 11 Q. It's always been the Industrial Hygiene 12 Association? 10 Occupational Safety and Health Administration. 11 Q. From 1986 to 1997, you were a member of the 12 American Conference of Governmental Industrial 13 A. American Industrial Hygiene Association, yes. 14 Q. I want to speak with you briefly about your 13 Hygienists? 14 A. Yes. 15 professional experience. 15 Q. What is your opinion of the ACGIH? 16 It says from 1998 to the present, 16 A. That is a professional organization with 17 you've been a consultant. I guess that's when you moved 17 membership confined to people who are employed by a 18 to Mobile, into semi-retirement? 18 governmental agency. 19 A. Yes. We lived in Virginia until about three 19 Those who have worked for a 20 years ago. 21 Q. The next thing on here, is from 1994 to 1996, oo you were Director of Occupational Environmental Health 20 governmental agency and go to something else, can also 21 be Associate members. Q. Has there always been the requirement at the 23 at the American Service Corporation; is that right? 23 ACGIH that you be a present or former governmental 24 A. That's right. 24 agency employee? 25 Q. What is the American Service Corporation? 25 A. Well, for a long, long time, you had to be RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 33 - Page 36 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PE________________ CAUSE NO. 98-317-G Page 37 Page 39 1 currently an employee of a governmental agency. 1 Q. When was the first standard promulgated by 2 Q. Can you tell me what -- probably you can't 2 the ACGIH for exposure to asbestos? 3 tell me specifically, but can you tell me what time 3 A. 1946. 4 period we're talking about where to be a member of the 4 Q. That was the threshold limit value? 3 ACGIH you had to be an employee of a governmental 5 A. I'm not sure that it was called threshold 6 agency? 6 limit value at that time. But their first publication 7 A. 1 don't remember when they also included 7 on exposure to limits was in 1946. Asbestos was a part 8 former employees. I don't remember what that date was. 8 of that. 9 Q. Was it sometime after you were there? 9 Q. And what was the standard set in 1946? 10 A. Well, I've been a member of ACGIH on two 10 A. 5 million particles per cubic foot of air. 11 different occasions. When I worked for the Tennessee 11 Q. Did the ACGIH ever change its threshold limit 12 Valley Authority -- that is, of course, a quasi-federal 12 value or standard for exposure to asbestos? 13 corporation, and was therefore eligible to be a member. 13 A. Several times. 14 When I left the Tennessee Valley 14 Q. When was the first change? 15 Authority, I was no longer eligible. And at that time, 15 A. The first change, I believe, was 19 -- I 16 I went to Boeing Airplane Company in Wichita, which was 16 believe the first change was in 1972, something like 17 a government contractor. 17 that. Somewhere in that order. 18 But I still wasn't eligible for 18 Q, Do you know what they changed it to? 19 membership. When I left OSHA, what? 20-something years 19 A. At that time, it went to 12 fibers per cc, I 20 later, or 30-something years later, the rules had been 20 believe, or 2 million particles per cubic foot. And 21 changed, and I was allowed to be an Associate member. 21 then it was changed later to separate the different 22 Q. So at least back as far as the '50s you had 22 types of asbestos and lower the limit. 23 to be a current Government employee? 23 And I think this may be 1976. They 24 A. It was very strict in the '50s, and I'm sure 24 changed it to two fibers per cc for chrysotile, a half a 25 that extended on probably for another two decades. 25 fiber per cc for -- I know it's two-tenths of a fiber Page 38 Page 40 1 Q. Do you know when the ACGIH was founded? 1 for crocidolite, so it must have been the other, 2 A. 1938. 2 amocite, that was the half. 3 Q. Do you knowif in1938 when it was founded, 3 But there were three different levels. 4 you were required to be an employee of a governmental 4 Q. So in 1976, it was two fibers per cc for 5 agency to be a member? 5 chrysotile, a half a fiber per cc for amocite, and 6 A. Yes, you were. 6 two-tenths of a fiber per cc for crocidolite? 7 Q. And that was true until sometime after the 7 A. 1 believe that's correct. 8 '50s? 8 Q. And was that the last change to the 9 A. Yes. 9 standards? 10 Q. Do youhave anycriticismsof the ACGIH's 11 positions it's taken historically on the issue of 12 asbestos? 10 A. [ think it's still the same. 11 Q. Who did the American Conference of 12 Governmental Industrial Hygienists promulgate their 13 A. Well, I was not a part of the -- I was never 13 standards to? 14 a part of the ACGIH Threshold Limits Committee. 1 14 A. I don't think I really understand what you're 15 generally did not have quarrels with them as to what 15 asking. 16 levels they came up with, and probably some -- if not 16 Q. When the ACGIH in 1946 or'72 or'76 came out 17 the best, I don't know of any that were any better than 17 with these standards, what was the purpose of it? 18 they were. 18 A. Well, I think if you go back to the origin of 19 So I don't really have any quarrels 19 ACGIH. Prior to 1938, there was no publication, 20 with the decisions that they made. 20 organization, that provided consistent threshold limit 21 Q. Are you familiar with the standards 21 values -- or exposure limits. 22 promulgated by the American Conference of Governmental 22 In 1938, a group of mostly state 23 Industrial Hygienists historically, on the matter of 23 hygiene organizations got together and said, "We should 24 asbestos exposure? 24 standardize this. We'll have one thing." But it was 25 A. I think we were well informed on that, yes. 25 1946 before they got around to actually publishing the RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 37 - Page 40 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 41 Page 43 1 first list of compounds with exposure limits for them. 1 reasonable employer in the 1950s would not have gone and 2 But this was as a service to the 2 sought out ACGIH's standards on asbestos used in the 3 practicing industrial hygienists and to anybody else 3 workplace? 4 that was interested. 4 MR. WOLCOTT: Objection u) form. 5 Q. Do you believe employers in 1946 to, say, 5 A. In my opinion, there was very little reason 6 1950, that time period, who had substances that were on 6 why any employer using asbestos, perhaps other than the 7 the ACGIH's list should have sought out and reviewed the 7 people who were mining, processing it, would have 8 ACGIH's list to find out what the standards were? 8 thought that there was any reason to seek out additional 9 MR. WOLCOTT: Objection to form. 9 information. 10 A. You say "employers." That includes a 10 Q. (BY MR. BARLOW) By that, do you mean that 11 tremendous number of people. Probably most of them -- 11 no, a reasonable employer who utilized asbestos in their 12 and I'm saying probably 99 and 44/100s percent of them 12 business would not have sought out the ACGIH's standards 13 didn't even know what ACGIH was. 13 on asbestos exposure? 14 So they probably had no way of knowing 14 A. 1 think the vast majority of employers would 15 that such a list had been published. And there were, of 15 not have felt that there was any reason to, that's 16 course, not very many industrial hygienists at that time 16 correct. 17 either. 17 Q. What about in the 1960s? Wouldn't an 18 Q. (BY MR. BARLOW) Let me see if 1 can narrow 18 employer whose business utilized asbestos have sought 19 it down for you. 19 out the ACGIH standards on asbestos exposure? 20 In the 1950s, would a reasonable 20 MR. WOLCOTT: Objection to form. 21 employer whose business used asbestos products have 21 A. There was a great deal of change in the 22 sought out to determine what the ACGIH was saying about 22 1960s, particularly the mid-'60s, with Dr. Selikoff s 23 exposure limits to asbestos? 23 report, which was first in 1964 and later published, 24 MR. WOLCOTT: Objection to form. 24 that aroused the interest and concern of the 25 A. In the 1950s, asbestos was not a material 25 occupational health and safety professionals. Page 42 1 that was considered to be of great concern from a health 1 Page 44 Again, this was not common knowledge, 2 standpoint, because there was just very little 2 though. There was probably more publicity provided by 3 experience in this country that showed that the disease 3 the findings of Dr. Selikoff than had ever been on 4 asbestosis was prevalent. 4 anything else. 5 It wasn't. It was a very rare disease, 5 But it wasn't something that appeared 6 and asbestos was considered to be a material of choice. 6 in the "New York Times" frontpage. 7 It had a lot of characteristics that were very 7 Q. (BY MR. BARLOW) Okay. Let's break this 8 desirable. 8 down. From 1960 until 1964, when the Selikoff 9 MR. BARLOW: Object as nonresponsive. 9 publication came out, should a reasonable employer have 10 Q. My question was whether or not a reasonable 10 sought out the American Conference of Governmental 11 employer who used asbestos in their practice would have 11 Industrial Hygienists' standards on asbestos exposure? 12 sought out the ACGIH standards to find out what the 12 MR. WOLCOTT: Objection to form. 13 American Conference of Governmental Industrial 14 Hygienists was saying was a safe level of asbestos to 15 expose their employees to. 16 MR. WOLCOTT: Objection to form. 13 A. The same answer that I gave before with 14 regard to the 1950s. There was really no change until 15 Dr. SelikofFs report. 16 Q. (BY MR. BARLOW) After 1964, when Selikoff 17 A. I think I certainly tried to answer your 17 came out, should a reasonable employer who utilized 18 question before. I think a reasonable employer, 18 asbestos in their business, have sought out the American 19 whatever that might be, would have considered asbestos 19 Conference of Governmental Industrial Hygienists' 20 to be a material of choice to use. 20 standards on asbestos exposure? 21 It had a lot of properties that were 21 MR. WOLCOTT: Objection to form. 22 very desirable. There were very few characteristics 22 A. You say "utilized," and that covers a lot of 23 that was felt to be undesirable. 23 things. But if you're considering that most of the 24 MR. BARLOW: Object as nonresponsive. 24 employers' utilization of asbestos involved installed 25 Q. (BY MR. BARLOW) Is it your testimony, that a 25 insulation, there's probably no reason for them to be RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 41 - Page 44 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G Page 45 Page 47 1 unduly concerned about it, no. 1 about the health of its employees? 2 Q. (BY MR. BARLOW) So from, cay, 1964 to 1970, 2 A. If they're an insulating company, of course, 3 is it your opinion that a reasonable employer utilizing 3 they've got certain regulations that they have to 4 asbestos in their business, would not have - or should 4 follow. If they follow those regulations, yes, their 5 not have sought out the ACGIH standards? 5 employees should be well protected. 6 A. Well, I think you have to go back and start 6 But what I'm talking about, is if there 7 talking about specific types of employers. Certainly it 7 is a false ceiling that is in, or if there is insulation 8 was known, and I'm sure that many people, other than the 8 on facilities in a plant, in a school, in a hospital, if 9 professionals in occupational health, were aware, that 9 it is not friable, then no, there's not going to be a 10 asbestos exposures, high exposures over long periods of 10 hazardous level of asbestos in the environment. 11 time, could cause the disease asbestosis. 11 Q. I think that we may be -- I don't know that 12 That was certainly known. And it would 12 my questions are understanding your answers or your 13 have been known by the people who were mining and 13 answers are with an understanding of my question. 14 processing asbestos, it would have been known by people 14 Are you talking about asbestos in 15 making asbestos cloth, for example. 15 place? It's your opinion that today employers don't 16 For other people where the exposures 16 need to be concerned with asbestos in place? 17 would not be nearly the levels that would exist there 17 A. As long as it is not friable. 18 nor would it be their primary material would probably 18 Q. What about when asbestos pipe covering is 19 have no concern. And there would be no reason why they 19 going to be manipulated? Is it your opinion that 20 should have. 20 asbestos pipe covering can be manipulated in a manner 21 Q. And this is up until 1970? 21 today that will not pose a health hazard to the people 22 A. Actually, probably until after 1971 or in 22 using it? 23 1971 when the first OSHA regulation was published. 23 A. It can be, yes. 24 Q. Let me see if I'm understanding your opinion. 24 Q. If you were going to be manipulating asbestos 25 Is it your opinion that until late 25 pipe covering today, are there precautions that you need Page 46 Page 48 1 1971/early 1972 when OSHA came out, that unless you were 1 to take? 2 in the asbestos mining or tech style-producing business, 2 A. Yes. 3 that you would have had no reason to be concerned with 3 Q. What are those precautions? 4 asbestos exposure to your employees? 4 A. Well, those are all spelled out in the 5 A. Let's add to that, or manufacturing asbestos 5 standards that have been promulgated. They are highly 6 products. Because you've got the asbestos pipe and this 6 protective. 7 sort of thing that was on the market. 7 It is my opinion that you could remove 8 But for the other employers, those who 8 asbestos, certain amounts of it, even if you chose not 9 were using products that contained asbestos, there 9 to follow those precautions without being harmful to 10 should have been no concern on their part about employee 10 people. 11 overexposure. And that's continued to be the case. 11 The standards for asbestos have always 12 Q. When you say "that's continued to be the 12 been based on an eight-hour daily exposure for a working 13 case," what do you mean by that? 13 lifetime. That was true when the standards was first 14 A. Just that. You do not get exposure from 14 published by ACGIH in 1946. 15 having pipes that are insulated with asbestos. You do 15 It's still true with the standards that 16 not get significant exposures from that. 16 was published in 1994 by OSHA. So it depends on what is 17 Q. Even today? 17 the length of the job, how much is the exposure, how 18 A. Even today. 18 often does somebody do it. 19 Q. I want to make sure that I'm understanding 19 So yes, you can remove it without 20 you. Are you of the opinion that today -- I don't think 20 presenting a hazard. 21 anyone uses asbestos insulation on pipes today. 21 Q. Do you believe that it should be legal today 22 At least they're not currently 22 to allow someone to saw a piece of pipe covering in 23 installing it. But is it your opinion, that today if a 23 half, say, for installation without using a respirator? 24 company were installing asbestos insulation on its 24 MR. WOLCOTT: Object to the form. 25 pipes, that that employer would not need to be concerned 25 A. Well, I think the question is moot, because RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 45 - Page 48 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 49 Page 51 1 regulations are in place, and you should comply with the 1 regulations, yes, we should obey those, whether it's a 2 regulations. 2 traffic light, or whether it's something else. 3 Q. (BY MR. BARLOW) But I'm asking your opinion 3 Yes, this is our obligation as a 4 about on what the regulations should be. 4 citizen, to try to be in compliance with all laws. 5 Do you think it should be permissible 5 Q. And is it your opinion that employers have a 6 today under the regulations, to allow someone to saw a 6 duty to know what the law is with regard to asbestu.- 7 piece of pipe covering that contains asbestos in half to 7 exposures for their employees? 8 not use a respirator? 8 MR. WOLCOTT: Objection to form. 9 MR. WOLCOTT: Objection to form. 9 A. Well, I think you're getting into an area 10 A. The regulations have to be written so that 10 where it is not my expertise. I think you're raising 11 they can be enforced. 11 legal questions here, that I don't feel that I'm the one 12 So what the compliance officer would be 12 who should try to answer that. 13 faced with, is how often is this done. If you're 13 Q. (BY MR. BARLOW) Well, if you were -- say, if 14 saying, "If I went out and one time sawed a piece of 14 you were consulting for a company in the 1950s, you were 15 asbestos, would this be harmful to my health?" No, it 15 acting as their Industrial Hygienist, would you advise 16 would not. 16 them to keep abreast of what the laws on asbestos 17 Q. (BY MR. BARLOW) If you were an insulator and 17 exposure were? 18 it was your job to saw in half, pieces of pipe covering 18 A. My responsibility would have been to advise 19 that contained asbestos for installation, and you worked 19 them with regard to possible health hazards, whether it 20 as an average insulator at a rate that an average 20 was asbestos or benzene or something else. 21 insulator would work at, could you saw that asbestos 21 However, in the 1950s, the potential 22 each day of your working career without harmful effect 22 exposure to asbestos at hazardous levels was very, very 23 to your health, in your opinion? 23 rare. 24 A. Again, this is going to say how much of each 24 Q. In your opinion as an Industrial Hygienist, 25 day was that a part of the job. It's very hard to say. 25 would a reasonable employer in an industrial setting Page 50 Page 52 1 Again, we have regulations. And since 1 have kepi abreast of what the state and federal laws 2 I signed one of those regulations, I'm not about to say, 2 were concerning asbestos exposure during the 1950s? 3 "Disregard them." 3 MR. WOLCOTT: Objection to form. 4 Q. Sure. And I understand that it's your 4 A. The word 'reasonable* there bothers me. 5 opinion -- well, I'll ask you: It is your opinion that 5 because ! know that the majority of employers didn't 6 employers, companies, should follow state and federal 6 know, and don't know today, what they are. 7 regulations on asbestos exposure? 7 Q. (BY MR. BARLOW) Can you answer the question? 8 A. Or any exposure, yes. 8 MR. WOLCOTT: Objection to the form. 9 Q. And I suppose that it's your opinion that 9 A. I think! did. 10 since 1900, a company should follow whatever regulations 10 MR. BARLOW: I object as nonresponsive. 11 are in place with regard to asbestos exposure? 1 1 Q. (BY MR. BARLOW) Do you have an opinion as to 12 A. Well, certainly there were no regulations in 12 whether or not an employer exercising a reasonable 13 place in 1900. The first regulation was 1971, a federal 13 degree of care, would have kept abreast of the state and 14 regulation. The states adopted -- some of the states 14 federal regulations concerning asbestos exposure in the 15 adopted the ACGIH threshold limit values. 15 1950s? 16 Q. When is the first time you know of that a 16 .MR. WOLCOTT: Objection to form. 17 state adopted the ACGIH threshold limit value? 17 A. Again. I think you have to say what is the 18 A. Some of them were right almost immediately 18 probability that asbestos would have been a problem for 19 following the publication. 19 employers in the 1950s with the information that was 20 Q. So 1946 -- let me go ahead and ask it that 20 available to them or to anyone else. 21 way: From 1946 until the present, it is your opinion 21 Most of the situations did not come 22 that an employer should be in compliance with state and 22 close to reaching what was felt to be a safe exposure to 23 federal regulations such as they exist with regard to 23 asbestos. 24 asbestos exposure? 24 Q. (BY MR. BARLOW) So is it your opinion that 25 A. Where there are laws or where there are 25 in the 1950s, if an employer didn't feel like there was RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 49 - Page 52 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 53 Page 55 1 a hazard at their jobsite with asbestos, they nad no 1 now, and I've tried to give you the best answer I can. 2 reason to find out what the laws were concerning 2 People get information from a number of 3 asbestos exposure in their state? 3 sources with regard to the products that they're using. 4 A. Why don't you run that by me again. 4 This may come from the vendors; it may come from their 5 MR. BARLOW: Can you read that back? 5 colleagues in the business. And I have to keep coming 6 (PREVIOUS QUESTION READ) 6 back that asbestos was not at the level of concern for 7 MR. WOLCOTT: Objection to form. 7 protecting workers as other contaminants might have 8 A. I think there's two things here. I think 8 been. 9 that the employer is, of course, responsible for 9 Q. (BY MR. BARLOW) Let me give you a 10 protecting the health and safety of their workers. And 10 hypothetical. Say in State X in 1950, they adopted the 11 they base their actions on what they know and what is 11 ACGIH standard of 5 million particles per cubic foot, 12 known in their particular aspect of the industries. 12 and there was a refinery in that state that used 13 In the 1950s, asbestos was not one of 13 asbestos in insulating their pipes and boilers and other 14 those things that was of concern. 14 machinery. 15 Q. (BY MR. BARLOW) Of concern to who? 15 Would that refinery have a duty to 16 A. To anyone. To the workers -- as far as we 16 affirmatively learn or find out what the law in the 17 knew, to the workers or to employers or, for that 17 state of X was concerning asbestos exposures to its 18 matter, to the Industrial Hygienists. 18 employees? 19 We just did not have enough information 19 MR. WOLCOTT: Objection to form. 20 to put asbestos at the level that it is today. 20 A. They had a duty to know how to protect their 21 Q. Well, you would agree with me, that by the 21 workers. If this included a value, then that would have 22 1950s, it was at least enough of a concern to the ACGIH, 22 been a part of their consideration. 23 that they would promulgate a standard on it? 23 But you have to also say, "What is the 24 A. They promulgated a standard based on a study 24 general knowledge with regard to this particular 25 that was done in 1938. It was based on the best 25 material? What is 5 million particles per cubic foot? Page 54 Page 56 1 knowledge that was available at the time. 1 Is this a likely thing to occur when using this 2 Q. So it was at least that big of a concern for 2 particular product?" 3 the ACGIH to publish a standard? 3 I don't know whether I can give you a 4 A. Which was 5 million particles per cubic foot. 4 good analogy or not. In 1950, if you bought a toaster, 5 When I was in graduate school in the mid-'50s, we had 5 it had a cord on it, that was probably insulated in part 6 courses on pneumoconiosis. Asbestos was included in one 6 with asbestos. 7 of a group. 7 Now the general knowledge was that that 8 The primary concern was silicone. 8 would protect you from shock, and it carried no other 9 Asbestos was included with sugar cane and cotton dust 9 connotation whatsoever. 10 and a lot of other things! It was lumped together as 10 Now did the person who was selling the 11 other pneumoconioses. 11 toaster have an obligation to tell the customer that it 12 Q. Let me ask you this: The threshold limit 12 contained asbestos? No. There was no reason to. 13 value of 5 million particles per cubic foot, was it ever 13 Even in a state that might have had a 14 intended to protect against cancer? 14 level, exposure limit, it would not have been a concern. 15 A. I don't think cancer was included. 15 Because the probability of there being an exposure 16 Q. I want to get back to what your opinions are 16 hazard was nil. 17 on whether or not a company should seek out and know 17 MR. WOLCOTT: Can we take one of those 18 what the laws are concerning products that it's using on 18 hour breaks? I think we've been going over an hour. 19 its worksites. 19 MR. BARLOW: Sure. 20 In the 1950s, do you feel like 20 (RECESS HELD FROM 10:46 A.M. TO 10:52 A.M.) 21 companies should have made an effort to find out what 21 Q. (BY MR. BARLOW) I think before we left off 22 the laws said about asbestos that they were using in 22 you had said that an employer has the duty to protect 23 their workplace? 23 their workers? 24 MR. WOLCOTT: Objection to form. 24 A. That's right. 25 A. I think we've been over this several times 25 Q. Is it part of that duty to protect your RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 53 - Page 56 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, Cffl, CSP, PECAUSE NO. 98-317-G Page 57 Page 59 1 workers to stay abreast of regulations? 1 nonresponsive portion of the answer, but I think I 2 A. It is a part of everybody's duty to stay 2 understand your gist. 3 abreast of regulations as much as they can. Most of us 3 Q. (BY MR. BARLOW) Let me ask you this: Is it 4 can't possibly keep up with all the regulations. 5 And I think employers do rely on other 4 creating a hazard to expose employees to levels of [ 5 asbestos dust, asbestos-containing dust, over 5 million 6 sources to determine do I have a hazard without ! 6 particles per cubic foot? 7 necessarily saying is this the law or is it not the law. 7 A. Okay. I'm not sure that I was properly 8 Because most things are not covered by the law or by 8 listening there. 9 regulations. 9 Q. We can have it read back if you'd like. 10 Q. So in your opinion, an employer may need to 10 A. Yeah, please. 11 address a hazard even if it's not covered by 11 (PREVIOUS QUESTION READ) 12 regulations? 12 A. It might or might not be, depending on the 13 A. Certainly. 13 circumstances. 14 Q. Let me ask you if the inverse of that is 14 Q. Can you explain? 15 true. 15 A. Yes. You said dust-containing asbestos over 16 Can an employer be acting reasonably in 16 5 million particles per cubic foot. We don't know what 17 not addressing a hazard even if it is in violation of 17 percentage of asbestos it is, we don't know how long the 18 regulations? 18 worker was exposed to it, whether this is a one-time 19 A. Are you saying is it permissible or good 19 occasion, or whether it's a daily routine. 20 practice to violate regulations? 20 So more information is needed before 21 Q. Under any circumstances, yes. 21 that question can be answered. 22 A. No. 22 Q. You said one of the relevant considerations, 23 Q. I don't want to put words in your mouth, but 23 would be the percentage of asbestos in the dust? 24 so the record can be clear, to use your words, it's 24 A. That's right. 25 never good practice to be in violation of regulations? 25 Q. Another would be the amount of exposure or Page 58 Page 60 1 A. I think you asked the question earlier should 1 time period of exposure? 2 people comply with regulations. Yes. 2 A. The length of time per day, the repetition, 3 Q. And if an employer is not in compliance with 3 whether it's a full day or not, whether it's one 4 regulations, then they are not exercising good 4 occurrence or whether it's a routine occurrence. We 5 practices, correct? 5 have to also take into consideration the size of the 6 A. If they're not in compliance with 6 particles that are there, the size of the fibers that 7 regulations, no, that would not be good practice, no. 7 are there. 8 Q. The problem with asking questions like that 8 There are many things that go into 9 is that I think you can agree with me and then it comes 9 evaluating a workplace for asbestos or anything else. 10 out and it's unclear on the record. 10 You can't take just a number. That is a guideline for 11 If an employer is not in compliance 11 professionals to use in judging whether a workplace is 12 with the regulations, then that is not good practices, 12 hazardous or not. 13 correct? 13 Q. Change gears a little bit. 14 A. Your question was if an employer is not in 14 A. I'm sorry. What? 15 compliance with a regulation, it is not good practice? 15 Q. I said let's change gears a little bit. 16 It's not a wise practice. I would say that. 16 We've been talking about that for awhile. Let's talk 17 I'm not sure ~ we're getting into this 17 about something else. 18 business of good practice. Yes, I think we're all -- 18 When is the first time that there was 19 good practice is to try to be in compliance with all 19 something published in the scientific literature stating 20 regulations, whether they're concerning health of the 20 that bystanders could be at risk of developing asbestos 21 workplace or speed limits or what else. 21 disease as a result of exposure to asbestos? 22 It doesn't necessarily mean that a 22 A. I don't know what that date would have been. 23 hazard has been created by noncompliance with the 23 Q. Can you tell me which author has published 24 regulation. 24 the most in scientific literature on the issue of 25 MR. BARLOW: Object to the 25 bystander asbestos exposure and the hazards of that? RUTLEDGE GR AY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 57 - Page 60 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PE xCAUSE NO. 98-317-G Page 61 Page 63 1 A. No. 1 scientific literature, don't you, concerning asbestos? 2 Q. Can you tell me which articles you find 2 A. Well, I think I'm certainly capable of 3 authoritative on the issue of asbestos hazards from 3 evaluating publications on asbestos or many other 4 bystander exposure? 4 possible contaminants. 5 MR. WOLCOTT: Objection to form. 5 Q. And do you feel like you've done a thorough 6 A. I question that a good deal of what has been 6 review of the literature concerning bystander exposure 7 published regarding bystander exposure is very 7 to asbestos? 8 authoritative at all. 8 A. 1 don't know what you mean by "thorough 9 Q. (BY MR. BARLOW) Can you explain that 9 review." Have f read every paper on it? Probably not. 10 opinion? 10 From what I have read, l have certainly very, very 11 A. Well, based on my own experience, based on 11 strong questions as to the validity of the allegations. 12 air sampling results that I have seen, bystander 12 Q. And by thorough review I don't mean you've 13 exposures are very, very low, quite often on the order 13 read ever single paper that's ever been published on the 14 of ambient levels. 14 issue of bystander exposure. 15 You also have to define what is a 15 But do you feel that you have done a 16 bystander, who is this person, how long they're there, 16 thorough enough review of the medical literature with 17 if this is a walk-by situation, is it a helper to 17 regard to bystander exposure, to opine on that issue? 18 somebody else? 18 A. Yes. 19 There's just many, many factors that go 19 Q. And in your review of the scientific and 20 into it that I think generally have been ignored. 20 medical literature with regard to bystander exposure, 21 Q. Let me ask you this: You are aware that 21 you were unable to find any articles stating that 22 there is scientific literature that says that bystanders 22 bystanders are at risk which you found to be scientific? 23 are at risk of developing asbestos disease? 23 A. 1 don't agree with the results. I do not 24 A. I am aware that there have been such 24 believe that the normal definition used by bystander 25 publications. I question how scientific they are 25 legitimately makes a claim that there can be asbestos- Page 62 Page 64 1 because they do not take into consideration the total 1 related disease. 2 exposure of the individual. 2 Q. So you disagree with the scientific 3 Q. Do you disagree with the scientific 3 literature which says that bystanders are legitimately 4 literature which says that bystanders are at risk of 4 at risk of developing asbestos disease? 5 developing asbestos disease? 5 A. Well, I question the use of the term 6 A. Again, as I had said earlier, I think most of 6 "scientific literature," because I don't think it's very 7 the time there's not enough information available to 7 scientifically based. 8 really say. And also at what levels does asbestos 8 I do not believe that bystander 9 disease occur? 9 exposure, as I define "bystander," as I think others do, 10 What disease are they talking about? I 10 will cause disease. 11 do not concur with the idea that one fiber exposure is 1L Q. What articles do you rely on for the 12 going to be harmful. 12 proposition that bystanders are not at risk of 13 No, I do not agree with that. And 13 developing asbestos disease? 14 that's the basis of many of these bystander studies. 14 A. 1 didn't indicate any articles at all. I 15 Q. Are you aware of any article in the L5 base this on my knowledge of working conditions, the 16 scientific literature which states that bystanders are 16 basis for disease-causing exposures, which again, we 17 at risk of developing asbestos disease from asbestos 17 have to get back to the idea that these are eight hours 18 exposure that you agree with? 18 a day every day for 40 years or more before disease is 19 A. I can't give you an author, no. 19 likely to occur. 20 Q. Do you recall ever seeing one? 20 Q. So for your opinion that bystanders are not 21 A. I have seen articles that allege that 21 at risk of developing asbestos disease, you rely on your 22 bystander exposure causes asbestos disease, but I 22 experience as an Industrial Hygienist, rather than any 23 haven't seen any that I feel are soundly based on 23 scientific literature? 24 scientific fact. 24 A. I rely on my experience as an Industrial 25 Q. And you consider yourself an expert on 25 Hygienist, as well as the scientific literature RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 61 - Page 64 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 65 Page 67 1 regarding the causes for asbestos-related diseases. 1 MR. WOLCOTT: I think so. 2 Q. Can you list for me all of the authors who n THE WITNESS: It wasn't this week. 3 have written in the peer-reviewed literature that 3 Q. (BY MR. BARLOW) Where did you meet? 4 bystander exposure will not cause asbestos-related 4 A. At the plant. 5 disease? 5 Q. At the plant? Was this when you toured the 6 A. No. Neither can 1 give you a list of the 7 authors who have alleged that it does occur. 6 plant? 7 A. Yes. Then we met last night. And, of 8 MR. BARLOW: Object to everything after 8 course, we met today. 9 "no" as nonresponsive. 9 Q. You met last night. How long did you meet 10 MR. WOLCOTT: Can I see the CV, if 10 for last night? 11 you're not using it right now? 11 A. Well, we met for dinner. And I guess that 12 MR. BARLOW: Sure. Absolutely. 12 lasted two, maybe two and a half hours, reviewing some 13 (DOCUMENTS HANDED TO COUNSEL) 13 material at dinner. 14 Q. (BY MR. BARLOW) Have you done any review of 14 Q. The material that you reviewed at dinner last 15 the literature specific to this case, scientific 15 night, is that included in the documents? 16 literature? 16 A. Yes. 17 A. Specific to this? 17 Q. You said you met for dinner for two or two 18 Q. Uh-huh. 18 and a half hours and reviewed some documents. After 19 A. No. 19 dinner, did you meet any more? 20 Q. What have you done to prepare for your 20 A. No. 21 testimony in this case? 21 Q. So your total meeting time was two and a half 22 A. I have reviewed the documents that were nn hours? 23 provided to me by counsel; I visited the plant. 23 A About that. I don't know exactly, but 24 Q. You visited the plant? 24 somewhere in that order. 25 A. Yes. The materials that 1 gave you this 25 Q. When you went to tour the plant, how long Page 66 Page 68 1 morning, the law and the review. 1 were you there? 2 Q. You reviewed the federal regulations, and an A. Three hours, I guess. 3 article entitled "Chronology of Asbestos Regulations in 3 Q. Three hours at the plant? 4 the United States Workplace"? 4 A. Something like that. It was not a long time. 5 A. Right. 5 Q. Did you meet with Mr. Wolcott other than at 6 Q. So you reviewed some documents provided to 6 the plant, walking around and touring it? 7 you by counsel, you reviewed this article, "Chronology 7 A. We met the night before, and during that day. 8 of Asbestos Regulations in the United States 8 Q. You met the night before? What did you do 9 Workplace," -- 9 the night before at your meeting? 10 A. And the federal regulations. 10 A. Very similar -- just generally discussing the 11 Q. -- and the federal regulations. Did you do 11 case. 12 anything else? 12 Q. Discussing the case? How long did you meet 13 A. No. 13 the night before you went to the plant? 14 Q. Did you meet with Mr. Wolcott? 14 A. It was the same thing. It was dinner and 15 A. Oh, yes. 15 discussion, and the whole thing was probably on the 16 Q. When did you meet with Mr. Wolcott first with 16 order of two, two hours or so. 17 regard to this case? 17 Q. Did Mr. Wolcott at any point explain to you 18 A. Well, this has been going on for a period of 18 what the defense was in this case? 19 time. I don't remember exactly. 19 A. 1 don't understand what you're saying. 20 Probably shortly after the first of the 20 Q. Well, did you and Mr. Wolcott discuss how Mr. 21 year. I don't think we actually met until we made the 21 Wolcott intended to present a defense of the refinery in 22 plant visit last week. this case? 23 Q. You met last week? 23 A. No. We discussed what role I would take. 24 A. (Nodding affirmatively.) I think it was. 24 And this is generally the state of the art with regard 25 THE WITNESS: Wasn't it last week? 25 to asbestos. And of course, Mr. Clark's employment. RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 65 - Page 68 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 69 Page 71 1 Q. What did you understand your role would be in 1 maybe before that. But that's the first that I am aware 2 this case? 2 of it, is from his deposition. 3 A. The state of the art over the period of time, 3 Q. The first time, based on your review of the 4 state of the art with regard to asbestos over the time 4 corporate documents and depositions given, that you're 5 period of Mr. Clark's employment. 5 aware of anyone at the Pontiac facility being aware that 6 Q. And what do you understand the period of time 6 asbestos was a potential hazard was sometime in the late 7 of Mr. Clark's employment to be? 7 '60s when Mr. Kucera started working at the plant? 8 A. As I recall, it was 1952 to '78. 8 A. That is the first indication I have. That 9 Q. Is it your opinion, that prior to 1978, the 9 doesn't mean that that knowledge wasn't there before. 10 Pontiac refinery should not have known that its 10 It might have been. 11 employees were potentially at risk of developing 11 1 just don't know, because I don't have 12 asbestos disease? 12 records about it. No one commented before that. 13 A. You said "Pontiac refinery," and I have some 13 Q. You haven't been provided to date any 14 difficulty figuring out what the name of that location 14 documents which show knowledge at the Pontiac plant of 15 was over the period of years. 15 asbestos hazards prior to the late '60s when Kucera 16 It may have started out -- I think it 16 began? 17 maybe started out as Pontiac, and it had a bunch of 17 A. Well, he didn't say that there was a hazard 18 different -- 18 there. Your earlier question and my answer regarded 19 Q. I think it was Pontiac, and then Champlin, 19 that asbestos itself could be a potential hazard. 20 and then maybe UPR. 20 We were not referring to the actual 21 A. It had many different names. Now let's go 21 conditions at the plant. 22 back and see. Your question was -- 22 Q. You haven't been provided with any documents 23 Q. Well, whoever the owner of the Pontiac plant 23 or testimony which show that people or employees or 24 was, is it your opinion that prior to 1978, the owners 24 members, executives at the Pontiac facility knew that 25 of the plant would have had no reason to be on notice 25 asbestos generally was a potential hazard prior to Page 70 Page 72 1 that asbestos was a potential hazard in their workplace? 1 Kucera beginning work there? 2 A. From the materials that I've reviewed, I 2 A. I haven't seen anything like that. 3 think that the people at the plant -- I will say the 3 MR. WOLCOTT: I'm sorry. Could you 4 safety people and, in connection with that, of course, 4 read back the last part of that question? When Kucera 5 the management of the plant, were of the opinion that 5 started work there? 6 asbestos was not a problem for them. And I think their 6 THE COURT REPORTER: "...prior to 7 actions were appropriate. 7 Kucera beginning work there?" 8 Their employees were not being 8 A. Oh, no, I'm sorry. I misunderstood too. 9 excessively exposed to asbestos. 9 Because Mr. Kucera worked there before he took over 10 Q. Prior to 1978? 10 safety. 11 A. At any time. 11 MR. WOLCOTT: He started in '52. 12 Q. Or at any time. Based on your review of 12 Q. (BY MR. BARLOW) I'm at your mercy, because I 13 corporate documents and, I guess, deposition testimony, 13 have not seen Mr. Kucera's deposition. Let me ask it 14 what is the first time that you know of someone at 14 again. 15 Pontiac or Champlin, as it was later called, being aware 15 Mr. Kucera testified that he became 16 that asbestos was a potential hazard? 16 aware that asbestos generally could be a hazard sometime 17 A. Well, as I recall, I think Mr. Kucera -- is 17 in the late'60s. 18 that the way you pronounce his name -- the man that took 18 A. Mr. Kucera, as I recall his deposition, 19 over the safety responsibility, indicated that he had 19 indicated that shortly after he became the safety 20 some knowledge of it, yes. 20 representative there that asbestos -- along with other 21 I think he took on that job in '72. I 21 tilings -- could under certain conditions be a problem. 22 don't remember exactly -- or maybe it was '68 that he 22 He did not indicate that he felt that 23 took that job. 23 there was a problem in their plant. 24 Q. So sometime in the late '60s -- 24 Q. Do you know Richard Lemen? 25 A. Whatever the date was that he became -- and 25 A. Yes. RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 69 - Page 72 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 73 Page 75 1 Q. How do you know Dr. Lemen? 1 A. No, I have not. 2 A. Professionally. 2 Q. Do you know of Dr. Castleman's book? 3 Q. You know him professionally through what part 3 A. I know of it. 4 of your profession, I guess? 4 Q. Do you know what it's about, tho subject of 5 A. Well, Dr. Lemen has been active in the 5 it? 6 profession probably for the last 20 or maybe 30 years. 6 A. From what I've heard and what I've read of 7 I don't know exactly how long. 7 his testimony, it's essentially about asbestos. But no, 8 He was in the Public Health Service, 8 1 haven't read it. 9 and then at NIOSH, and is certainly well known in 9 Q. So you have no way to make a determination 10 industrial hygiene professional circles. 10 whether or not his book is authoritative about the 11 Q. What is your opinion of Dr. Lemen 11 history of the development of knowledge about asbestos? 12 professionally? 12 A. I haven't read it, so I can't say. 13 A. Well, as I said, I don't know him really very 13 Q. Do you have any criticisms of Dr. Castleman, 14 well personally. But I think that he has generally been 14 based on what you've read? 15 respected as a competent individual professionally. 15 A. I don't think I have ever read one of Dr. 16 Q. Do you know Dr. David Eagleman? 16 Castleman's depositions. I just don't recall. Not much 17 A. I know of him. I don't know him. 17 comment on it. 18 Q. Do you have any opinion about Dr. David 18 Q. You don't have any comment on-- 19 Eagleman professionally? 19 A. Not really, no. 20 A. Since I don't know the man, I'm only going by 20 Q. -- Dr. Castleman, one way or another? 21 what I have seen of depositions that he's given. He 21 A. No. 22 doesn't impress me very favorably. 22 Q. Have you ever done a review of the literature 23 Q. What are your criticisms of the opinions 23 for reported cases of asbestos-related disease among 24 you've seen Dr. Eagleman offer? 24 refinery workers? 25 A. He comes across as being quite arrogant, and 25 A. Well, there are a couple of papers about Page 74 Page 76 1 not very careful about what he says. 1 refinery workers. I think Dr. Wright was the author of 2 Q. When you say he's "not very careful about 2 one of them in which he and a co-author, I don't 3 what he says," what do you mean? 3 remember, I can't recall right now, reported a couple of 4 A. Well, I don't think -- I don't know quite how 4 cases of cancer in a refinery. 5 to put this. He's very egotistical -- seems to be, and 5 Q. Other than the case reports from Dr. Wright, 6 I'm going only by depositions -- quite egotistical and 6 are you aware of any other case reports in the 7 not much respect for anybody except his own opinions. 7 scientific literature which discuss asbestos-related 8 And I don't think I can go any further 8 disease among refinery workers? 9 than that. 9 A. Well, there are a number of case reports, 10 Q. Do you have any criticism of Dr. Eagleman's 10 most of them from England. But I don't think they are 11 opinions substantively that you've read? 11 necessarily refinery workers. 12 A. As I said, I just don't feel that he gives 12 1 think they're textile workers more 13 verygoodtestimony.no. I don't have much respect for 13 than anything else, and some insulators. There's a 14 him, no. 14 study about shipyard workers other than Dr. Selikoff. I 15 Q. I guess I'm trying to -- substantively, what 15 can't pinpoint one on refineries. 16 opinions have you seen him offer that you disagree with? 16 Q. What trades, in your opinion, would be at 17 A. I cannot pinpoint anything. As I said, it's 17 risk for developing asbestos-related disease? 18 just the impression that I get from his depositions. 18 A. What trades? 19 I don't really think I can go any 19 Q. Yes. 20 further than that. 20 A. Well, obviously, the insulators. Because 21 Q. What about Dr. Barry Castleman? Are you 21 these are the people who havemore exposure. We're 22 familiar with him? 22 talking about the past really, not present, because I 23 A. Again, that's somebody I know of. I don't 23 think that the controls that exist and the knowledge 24 know him personally. 24 that exists today are such that probably the insulators 25 Q. Have you read Dr. Castleman's book? 25 are not much at risk anymore. RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 73 - Page 76 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 77 Page 79 1 Q. Let me just stop you. I don't mean to 1 But as a group, I would not think 2 interrupt you. 2 pipefitters would, because that's just not their type of 3 But so we will be clear, historically, 3 work. 4 what trades have been at risk of developing asbestos- 4 Q. As a group, are boilermakers at an increased 5 related disease? 5 risk of developing asbestos disease? 6 MR. WOLCOTT: Objection to form. 6 A. I would say they fit in pretty much the same 7 A. I'm sorry. You asked, and I said, first of 7 category that the pipefitters do. 8 all, the insulators. And I think that is a trade. 8 Q. They would not be? 9 Q. (BY MR. BARLOW) I didn't mean to confuse the 9 A. They would not be, because their exposure 10 issue more. 10 time is very, very - relatively short as to what their 11 You said that obviously, present day we 11 primary job is. 12 have regulations in place that may take some trades out 12 Q. As a group, would electricians be at an 13 of the zone-free zone. 13 increased risk of developing asbestos disease? 14 A. Hopefully we're doing that for everybody, 14 A. I would put them even below the pipefitters 15 yes. 15 and the boilermakers. 16 Q. So what I'm saying, is over time, over the 16 Q. So they would not? 17 past hundred years, which trades have been at risk of 17 A. Would not. 18 developing asbestos-related disease? 18 Q. Would drywallers be at an increased risk of 19 A. Again, I have to start with the insulators. 19 developing asbestos disease? 20 This would be one group of people. The other are the 20 A. They might be. Once again, this is going to 21 textile, asbestos textile workers. And this is the 21 depend on when they were doing drywall, because, again, 22 studies by Dr. Dreessen as well as the studies by 22 it's not a present-day problem. 23 Meriwether, et al, in England. 23 Q. Would drywallers in the 1950s be at an 24 Surprisingly, miners of asbestos have 24 increased risk of developing asbestos disease? 25 not been to a great extent, not to the same extent that 25 A. Well, it was certainly a dusty operation. I Page 78 Page 80 1 people in manufacturing, or particularly in the textile 2 industry -- 1 don't have any information specifically on what the 2 asbestos levels - respiratory levels were for drywall 3 Q. Miners are at risk, but less so? 4 A. Well, I would think so. But as I say, the 3 workers. It's very dusty. I know that. 4 Q. So you don't have an opinion one way or the 5 studies indicate, particularly among the Canadian 5 other? 6 miners, that there has not been nearly as much -- there 6 A. 1 don't know. 7 has been disease, but not nearly to the extent of what 7 Q. Would laborers be at an increased risk of 8 might have been expected. 8 developing asbestos disease? 9 Again, when you get down to specific 9 A. Again, it depends on what the laborer is 10 trades, it's kind of hard, because you're saying, "What 10 doing, where they're working. As a group, no. 11 is their job? How much exposure have they had?" 11 Q. Have you been given any documents such as 12 There have been alleged exposures of 12 worker's compensation claims or other types of documents 13 pipefitters, boilermakers, and others, but those have 13 which indicate the existence of asbestos-related disease 14 been primarily -- they have not been asbestosis, they 14 in employees of UPR? 15 have been mesothelioma, and really not much good studies 15 A. No. 16 on those. There have been alleged cases of it. 16 Q. What about Champlin? 17 Q. You're aware of alleged cases. In your 17 A. No. 18 opinion, were pipefitters at an increased risk of 18 Q. Pontiac? 19 developing asbestos-related disease? 19 A. No. 20 A. It's hard for me to say that they are 20 Q. Have you interviewed any former employees of 21 because, again, their job does not involve using 21 Pontiac, Champlin, or UPR, in connection with forming 22 insulated materials, even being around it a whole lot. 22 your opinions in this case? 23 So it's going to have to depend on 23 A. I can't say that I've interviewed him. Mr. 24 where they were working, what were the conditions they 24 Tansey was present when we did the plant tour. 25 were working under, what was their exposure level. 25 Q. Did you talk to Mr. Tansey? RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 77 - Page 80 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, Cffl, CSP, PECAUSE NO. 98-317-G Page 81 Page 83 1 A. We talked, but I couldn't say that this was 1 Q. Do you feel like you are qualified to review 2 by any stretch of the imagination an interview. Of 2 epidemiological studies for scientific validity? 3 course, there were comments with regard to what we were 3 A. Yes. 4 seeing and what his experience had been. But very 4 Q. Are there any substances besides asbestos 5 generally. 5 which you believe cause mesothelioma in humans? 6 Q. Can you tell me what Mr. Tansey told you i 6 A. There are those, but I don't know what the\ 7 about the conditions of the plant when he was there in 7 are. 8 the 1960s and '70s? 8 Q. What do you rely on for your opinion that 9 A. Well, he was able to point out what still 9 there are other causes of mesothelioma? 10 existed and what did not exist or which had been 10 A. Well, there was a study done in -- T think it 11 built -- or merged and built, rebuilt, the use of 11 was India or Nepal, one of the countries in that part of 12 asbestos-containing products -- or rather the nonuse of 12 the world, where there was, quote, "no asbestos 13 asbestos-containing products. 13 exposure" and there were cases of mesothelioma. 14 This was generally because they had to 14 There have been other reports, and I 15 identify where asbestos was. 15 can't specifically name them now, where it was 16 Q. Was there anything that Mr. Tansey told you 16 considered idiopathic. They had no idea why a person 17 that you found relevant in forming your opinions in this 17 had mesothelioma. 18 case? 18 And I think that the number of cases, 19 A. Well, I think anything that you learn from 19 while it's still relatively small, to me indicates that 20 the plant tour, from discussions with him, from review 20 there has to be some other reason for it other than 21 of the documents has some influence on the opinion, yes. 21 asbestos exposure. 22 Q. What did he tell you that influenced your 22 Q. Are there any epidemiological studies which 23 opinion? 23 show something other than asbestos to cause 24 A. I don't think there's any one specific thing. 24 mesothelioma? 25 I just think generally, as I mentioned earlier, what he 25 A. Well, I indicated the one study where, to the Page 82 Page 84 1 was asked about, what he said, all of that is a part of 1 best of knowledge of the people conducting the study, 2 the knowledge that's gained for forming an opinion. 2 there was no asbestos exposure, but there were still 3 Q. Was the information he gave you basically 3 cases of mesothelioma. 4 information about where things were, what was new, what 4 And it's very hard to conduct an 5 the layout of the plant was? 5 epidemiological study for what does not exist. 6 A. I think that's what I said earlier, yes. 6 Q. What I'm saying is are you aware of case 7 Q. Are you an epidemiologist? 7 reports that mesothelioma -- are you aware of articles 8 A. No. 8 linking mesothelioma to Semian virus 40? 9 Q. Do you consider yourself an expert in the 9 A. To what? 10 area of epidemiology? 10 Q. Semian virus 40. 11 A. I think I am capable of interpreting 11 A. I don't know what that is. 12 epidemiological information, yes. 12 Q. What about articles relating mesothelioma to 13 Q. Do you consider yourself qualified to 13 radiation? 14 critique epidemiological studies? 14 A. [ know that that has been discussed, but I 15 A. In trying to evaluate them and interpret 15 don't know of any studies that has really been 16 them, yes, you have to have some. 16 conclusive that there's a relationship. 17 I do not consider myself an 17 Q. You are aware that there are epidemiological 18 epidemiologist, but I do think that I can read the 18 studies that show asbestos causes mesothelioma? 19 studies and obtain valid opinions from them. 19 A. No. 1 am aware that there are allegations 20 Q. Do you consider yourself qualified to opine 20 that extremely low concentrations of asbestos will cause 21 on whether or not an epidemiological study was conducted 21 mesothelioma, but I am not convinced that it's very 22 correctly? j 22 sound. 23 A. I think 1 would want to see what study we're 23 I think that the amount of exposure to 24 talking about before I would say. I might or I might 24 asbestos, relatively high exposure, has not shown that 25 not. 25 mesothelioma is caused by these very, very low RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 81 - Page 84 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PE CAUSE NO. 98-317-G Page 85 Page 87 1 concentrations. 1 A. Case reports have some basis, but they 2 We just don't have that many cases of 2 certainly are not conclusive evidence for the disease as 3 mesothelioma as compared to the total number of people 3 related or not. 4 who have been working with asbestos. 4 Q. What, in your opinion, is a safe level of 5 Q. Do you know how many cases of mesothelioma 5 exposure to asbestos? 6 there are each year? i 6 A. Well, certainly that's a question that I've 7 A. No. 7 had to deal with for some time. In 1986, when I signed 8 Q. Do you have an estimate? 8 the asbestos standard that reduced the level to 9 A. You know, it seems that I've seen that 9 two-tenths of a fiber per cc, there was no question in 10 figure, but I don't recall. But I know that it's 10 my mind whatever that that was a level which would 11 relatively small when you compare all the diseases that 11 protect people from asbestos disease. 12 exist; say, to cancer, lung cancer. 12 I frankly think it probably could have 13 Q. So I understand your opinion, are you not 13 been higher than that. 14 convinced that asbestos causes mesothelioma? 14 Q. If you think it could have been higher than 15 A. I am not convinced that there aren't other 15 that -- in your opinion, what level would have been a 16 causes. There may be a relationship and there probably 16 safe level of asbestos exposure to sign into law? 17 is a relationship between asbestos and mesothelioma. 17 A. Well, since the level was established at two 18 I do not know what the threshold may be 18 fibers per cc, there's been very, very little evidence 19 for disease. I don't believe it's as low as alleged. 19 that there has been additional asbestos disease. 20 Q. You are aware that.there are epidemiological 20 Now we have people who are developing 21 studies showing asbestos will cause mesothelioma? 21 asbestosis now, but those exposures may go back 40 22 A. I'm aware that there are some studies -- and, 22 years. The same way with mesothelioma. They may go 23 as I recall, those were part of the further studies by 23 back 20 or so years. But as far as, quote, "new cases," 24 Dr. Selikoff -- that the insulation workers did have 24 it just doesn't seem to be there. 25 cases of mesothelioma. 25 So as I said, I had no question about Page 86 Page 88 1 I'm not saying that there's not a 1 signing the two-tenths of a fiber, because I was quite 2 relationship. I'm saying that, as far as I know, no one 2 confident it was very protective. 3 has come up with what is the threshold, how much 3 Q. In your opinion, is two fibers per cc a safe 4 exposure do you have to have to cause mesothelioma. 4 level of asbestos exposure? 5 I don't believe it's the one fiber 5 A. I think it probably is. Did I say "two" last 6 theory, no. 6 time? That standard is two-tenths of a fiber. 7 Q. I'm not asking about threshold. I'm just 7 Q. Right. Because I think you said - 8 saying whatever the exposure level, you're aware that 8 A. I think two fibers per cc is probably 9 there are epidemiological studies which show asbestos 9 protective. 10 can cause at some level of exposure mesothelioma? 10 Q. Do you think five fibers per cc is a safe 11 A. When you asked it before I said yes, that 11 level of asbestos exposure? 12 there was a relationship. I don't know what the 12 A. Well, that sort of gets mixed up in the 13 threshold is. 13 period when people were exposed to a whole lot more. So 14 Q. Are you aware of any epidemiological studies 14 that's hard to say. 15 that show some other substance specifically causes 15 Q. You don't know whether five is safe or not? 16 mesothelioma? 16 A. No. That would be very difficult to try to 17 A. You asked that before, and I told you no, I 17 separate that from earlier exposures that probably were 18 wasn't aware of it. 18 higher. 19 Q. So you rely on case reports to show that 19 Q. If it had been up to you, would you have left 20 there can be other things that cause mesothelioma? 20 the standard for asbestos exposure at two fibers per cc? 21 A. That and the fact that most of the people who 21 A. That's a moot question, because the standard 22 have been exposed to asbestos do not have mesothelioma. 22 had been written, it had been prepared. And I think the 23 Q. Is it scientifically valid, in your opinion, 23 responsibility of the Assistant Secretary for OSHA is to 24 to rely on case reports in forming an opinion as to 24 protect workers, and there was certainly nothing there 25 causation of disease? 25 that to me said we were not protecting workers. RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 85 - Page 88 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 89 Page 91 1 MR. BARLOW: Object as nonresponsive. 1 who work around it and bring it home on their clothes? 2 Q. (BY MR. BARLOW) If it had been up to you, 2 A. You just acked me that question, and I tried 3 though, would you have left the standard for exposure to 3 to answer it. I gave you the answer just a minute ago. 4 asbestos at two fibers per cc? 4 You essentially asked exactly the same question again. 5 A. Well, as I say, you're coming in after the 5 Q. Can you answer the question? 6 fact on something that's hard to say. 6 THE WITNESS: Would you read my answer 7 Would I have expended the time and the 7 back, please? 8 effort that went into producing the 1986 standard? If 8 (PREVIOUS ANSWER READ) 9 it had been my call, I probably wouldn't have done it. 9 A. Okay. How is your question, different? 10 Q. Did you disagree with the time and expense -- 10 MR. WOLCOTT: You answered it. You 11 expending the time and effort that it took to come up 11 answered it the second time with the reading of that. 12 with the 1986 asbestos standard? 12 MR. BARLOW: Do you have an objection? 13 A. Well, again, it's a question really that has 13 MR. WOLCOTT: Yeah. I object to the 14 no meaning whatsoever because it was there. It was 14 form of your questions, the repetition. 15 done. 15 Q. (BY MR. BARLOW) So I understand your 16 And it provided the protection that was 16 opinion, it's your opinion that mesothelioma among 17 needed. That it might have been overprotective didn't 17 members of the household of workers who brought home 18 enter into the question. That was not a decision that I 18 asbestos on their clothes, those mesotheliomas were not 19 could make. 19 caused by the asbestos, they were caused by something 20 MR. BARLOW: Object as nonresponsive. 20 else? 21 Q. (BY MR. BARLOW) My question, though, is: 21 A. It is my opinion that it is very unlikely 22 Did you disagree with expending the time and effort that 22 they were caused by asbestos. Highly unlikely. 23 it took to promulgate the 1986 OSHA standard on asbestos 23 MR. BARLOW: I think we've been going 24 exposure? 24 another hour. Do you want to take a break now? 25 A. You asked me earlier, and my answer was, that 25 MR. WOLCOTT: Sure. Fine with me. Page 90 Page 92 1 if it had been my decision back at the time the revision 1 (RECESS HELD FROM 11:52 A.M. TO 1:06 P.M.) 2 was started, I probably would not have agreed to it. 2 Q. (BY MR. BARLOW) Mr. Pendergrass, we're back 3 Q. Are you aware of cases of asbestos-related 3 from lunch. 4 mesothelioma from exposure in the household? 4 A. Yes, sir. 5 A. I know that there have been allegations such 5 Q. Continuing with the deposition. And of 6 as that, yes. 6 course, you understand, you're still under oath? 7 Q. Do you believe that asbestos is capable of 7 A. Right. 8 causing mesothelioma in the family members and workers 8 Q. Do you believe that asbestos can cause colon 9 who bring it home on their clothes? 9 cancer? 10 A. 1 find that difficult to accept on a 10 A. 1 don't have any information on that. 11 scientific basis, yes. 11 Q. You don't have an opinion one way or the 12 Q. You disagree with -- 12 other? 13 A. As 1 said, I find that -- because we have no 13 A. No. 14 idea what the exposures are, either with regard to 14 Q. Have you seen any literature that discusses 15 concentration or the time. 15 the issue of whether or not asbestos can cause colon 16 From what I have been able to 16 cancer? 17 determine, the concentration has to be relatively low 17 A. As I recall, that has been mentioned some, 18 and for a very short period of time. And it's certainly 18 but very little. 19 not something that's repeated on an eight-hour-a-day 19 Q. Do you have an opinion on whether or not 20 basis. 20 asbestos can cause laryngeal cancer? 21 So the exposures seem to me to be very, 21 A. I don't have an opinion on it. 22 very low. Again, it makes me think that there's 22 Q. Do you have an opinion as to whether or not 23 something else that is causing mesothelioma. 23 asbestos can cause lung cancer? 24 Q. Is it your opinion, that asbestos will not 24 A. I think it can, yes. 25 cause mesothelioma among family members of individuals 25 Q. Asbestos can cause lung cancer? RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Pare 89 - Page 92 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G Page 93 Page 95 1 A. Exposure to asbestos can cause lung cancer, 1 A. That's right. 2 yes. 2 Q. Are there also cases of lung cancer where 3 Q. Right; exposure to asbestos. How much 3 asbestos is a contributing factor, where asbestosis has 4 asbestos exposure does it take before it can contribute 4 not occurred? 5 to lung cancer? 5 A. Yes. But there's a caveat there too. 6 A. I'm going back, thinking primarily of the 6 Q. What is the caveat? 7 studies by Dr. Selikoff. In his first studies he found 7 A. Well, I'm not sure that there's been a good 8 lung cancer, he really did not know what the exposure 8 separation in that case between the cigarette smokers 9 levels were except that the people were insulation 9 and nonsmokers. 10 workers and had been at it for a number of years, 10 What was found, was that people who 11 including the shipbuilding years in New York City. 11 were exposed to asbestos and had asbestosis but did not 12 He also found that most cases of lung 12 smoke cigarettes, did not get lung cancer. This was 13 cancer among the asbestos workers were those who smoked 13 from Selikoff s study. 14 cigarettes. By far -- no question of the synergism 14 So it's very hard to separate, but I 15 between them. 15 think it is conceivable that if the exposure is high 16 He also found, looking at his data 16 enough over a long enough period of time, that lung 17 later, that there seemed to be a necessity for there to 17 cancer can occur without asbestosis. 18 be asbestosis, but there were cases of people with 18 Asbestosis can occur without lung 19 asbestosis who did not have lung cancer, but they did 19 cancer. The two can occur together. And when you throw 20 not smoke either. 20 smoking in, you're not sure exactly where you are, 21 So there's synergism between the 21 except it's not good. 22 combination of exposure to asbestos as well as cigarette 22 Q. Let me see if you think this is a fair 23 smoking. But either can cause it without the other. 23 statement: Asbestos can cause lung cancer in the 24 Q. Let me go back on what you just said, see if 24 absence of enough exposure to have caused asbestosis, 25 we can tease out the individual opinions there. 25 but it is unclear whether or not smoking is also a Page 94 Page 96 1 You believe that asbestos alone can 1 contributing factor in those lung cancers? 2 cause lung cancer? 2 A. Well, I don't know that you can make that 3 A. That seems to be the case, yes. 3 distinction because the lung cancer may get the 4 Q. Is it your opinion that before asbestos will 4 individual before the asbestosis does. 5 cause lung cancer, there must be sufficient exposure to 5 Those gestation periods are not 6 have caused asbestosis? 6 necessarily the same. So I'm not sure that you can make 7 A. Not necessarily. It is true in some cases, 7 that -- I'm not aware of anything to make that sort of 8 but there are cases of asbestosis where there is no lung 8 statement. 9 cancer. There are cases of lung cancer where asbestosis 9 Q. At this point you don't have a definitive 10 has not occurred. 11 Now some of those are associated with 10 opinion one way or the other as to whether or not you 11 need enough exposure to asbestos to cause asbestosis 12 cigarette smoking, so it's kind of hard to pull these 12 before you would be at an increased risk of lung cancer? 13 apart and say yes, yes, yes, no, no, no. 13 A. It is conceivable that the asbestosis just 14 Q. Do you believe that there's a synergistic 14 hasn't had a chance to develop. 15 effect in the causation of lung cancer between asbestos 15 Q. You were shaking your head "yes"? 16 and smoking? 16 A. Well, yes, but there are caveats to it. 17 A. I think there is. 17 Asbestos exposure at some level over a certain period of 18 Q. I understand that in many cases where there 18 time in certain people, can cause lung cancer. 19 is no asbestosis and there is lung cancer, you believe 19 Q. And what I'm trying to find out from you, is 20 that smoking contributed to that lung cancer; is that 20 based on your reading of the scientific literature, what 21 right? 21 is that level? 22 A. Well, okay. I don't think I would put it 22 A. I don't know that anybody has established 23 exactly like you did. 23 what that level is. Unfortunately, the people who have 24 Q. I'm trying to -- there are cases of 24 been able to study, the exposure levels were not known. 25 asbestosis, where lung cancer does not occur? 25 And this goes back whether we're RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 93 - Page 96 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 97 Page 99 1 talking about Selikoffs studies or we're talking about 1 A. I think that the Selikoff studies were the 2 Meriwether's studies in the early '30s. They didn't 2 ones that was the final thing that said yes, this is 3 have the concentration. They didn't know what the 3 probably the case. 4 concentrations were. 4 There were a lot of case studies before 5 With Selikoff, he was examining people 5 that but not of the magnitude that Selikoff did. 6 or examining people's health records and it was somewhat j 6 Q. Do you believe that the Doll studies 7 of a surprise, I think, that he found the lung cancer. 7 conclusively established that asbestos could cause lung 8 And in his first report he did not relate this in any 8 cancer? 9 way to cigarette smoking. 9 A. No. 10 So you've got really three different 10 Q. Why not? 11 things here. Asbestos exposure at some level over a 11 A. Because he did not take into consideration 12 certain period of time, I think, can cause lung cancer. 12 cigarette smoking. 13 Asbestos over a certain length of time can cause 13 Q. Can you name for me the authors who were 14 asbestosis. 14 writing in the 1950s that asbestos is not a contributing 15 When you then put cigarette smoking in, 15 factor to lung cancer? 16 the probability of lung cancer occurring is much greater 16 A. That wrote it is not a contributing factor? 17 than it is without the cigarette smoking. 17 No. 18 Q. Are you aware of medical literature and 18 Q. Are you aware of anyone that was writing in 19 studies which report lung cancers found among 19 the 1950s, that asbestos does not contribute to lung 20 asbestos-exposed workers who do not smoke? 20 cancer? 21 A. I don't think the Doll studies separated 21 A. 1 don't recall seeing anything that says it 22 that. I think Selikoff had people who had lung cancer 22 is not a factor. 23 without smoking. 23 Q. Well, then, Pm a little confused by your 24 Q. Do you know whether or not all of those 24 testimony that it was not generally accepted until 1964 25 people had asbestosis? 25 when Selikoff came out that asbestos could cause lung Page 98 Page 100 1 A. All of those people did not have asbestosis. 1 cancer. 2 Or at least it wasn't reported that they did. 2 A. Well, there were a lot of things that caused 3 Q. So do you believe, based on at least that 3 lung cancer. And what had been presented to the 4 study, that lung cancer can occur among asbestos-exposed 4 professions was the case studies. And all of this 5 workers who don't smoke who have not yet developed 5 contributes to the accumulation of knowledge and 6 asbestosis? 6 eventually coming to some conclusion. 7 A. I thought I had said that. Yes. 7 When Selikoff gave his paper in 1964 8 Q. Yes, right? 8 there were serious questions as to whether it was -- how 9 A. Yes. 9 accurate it was, once again, because he had not included 10 Q. But you aren't sure whether or not those 10 smoking. 11 individuals have enough exposure to have gotten 11 He went back and looked at his data 12 asbestosis and just haven't developed it yet? 12 again, found out as much as he could about the smoking 13 A. That's right. We don't know that. I don't 13 habits of the people, and came to not different 14 know which is worse, to have the cancer first or the 14 conclusions but some clarifying facts as to what the 15 asbestosis. But neither one of them are good. 15 situation was. 16 Q. Asbestosis is a serious disease? 16 Q. By 1945, was there anyone disputing in the 17 A. Lung cancer is pretty serious too. 17 medical literature, published medical literature, that 18 Q. What is the first report in the medical 18 asbestos could cause lung cancer? 19 literature of an asbestos-related lung cancer? 19 A. I'm not aware of any study -- any paper that 20 A. I am going to say, I think it's probably back 20 disputed it. 21 in the early '30s, the Germans studied it. But I cannot 21 Q. By 1950, was there anybody disputing that 22 put the name to it. But there's a case study that you 22 asbestos could cause lung cancer? 23 mentioned. | 23 A. You know, I'm not aware of any studies that 24 Q. When was it generally accepted in the medical 24 say asbestos does not cause lung cancer. 25 literature, that asbestos could cause lung cancer? 25 What we had was a development of data RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 97 - Page 100 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 101 Page 103 1 that contributed to the conclusion that there was a 1 the medical literature, does it take to cause 2 relationship. 2 mesothelioma? 3 Q. Let me ask you this: Are you aware of a 1949 3 A. I have not seen any publication as to what 4 JAMA article discussing asbestos as the cause of lung 4 the threshold for mesothelioma is. There has to be one. 5 cancer? 5 But as far as I know, it hasn't been published. 6 A. You're talking about the editor's letter? 6 Q. You're aware of no published threshold below 7 Q. Uh-huh. 7 which mesothelioma will not occur? 8 A. Yeah, I'm aware of it. 8 A. Well, I think that what I said was that I'm 9 Q. In 1949 when that came out, I believe you 9 not aware that a threshold has been published. We 10 said you're not aware of anyone that was disputing that 10 certainly know that there have been many, many 11 asbestos could cause lung cancer? 11 exposures, fairly high exposures, to asbestos that did 12 A. No. He wasn't saying it didn't cause it, 12 not result in mesothelioma. 13 either. To the contrary. He was stating that yes, 13 Q. Not everyone who is exposed to asbestos 14 there was a relationship. 14 develops mesothelioma? 15 Q. Do you draw a distinction in your mind 15 A. That's true. 16 between no one disputing -- well, if people were in the 16 Q. You say that there must be some threshold 17 medical literature publishing that asbestos causes lung 17 below which -- threshold exposure to asbestos below 18 cancer and no one was disputing it, is that not general 18 which mesothelioma will not occur. What do you base 19 acceptance in your mind? 19 that on? 20 A. It is not necessarily acceptance until there 20 A. Well, the fact that everybody has been 21 is the accumulation of data. In the scientific process, 21 exposed to asbestos, you and I and everybody in this 22 simply because I do something and I say this is what I 22 room. 23 found, that doesn't make it a fact. 23 Everybody outside has been exposed to 24 It is something that I have found. Now 24 asbestos. Low levels? Some of us even more than low 25 if somebody else comes along and does the same thing and 25 levels. So yes, there is a threshold. I don't know Page 102 Page 104 1 says I found the same thing, then these begin to build 1 what it is. 2 on each other until it's pretty well established that 3 that is a fact. 2 Q. Are you aware of idiopathic -- something 3 called idiopathic mesothelioma? 4 However, if no one else can duplicate 4 A. Yes, that there are cases of idiopathic 5 my work, then it probably is not going to b^ considered 5 mesothelioma. 6 as fact. 7 So it's a matter of increasing 6 Q. Do you think it is possible that the 7 idiopathic mesotheliomas are asbestos related and those 8 knowledge that allows us to come to a scientific 8 people simply have a low enough threshold that they can 9 conclusion as best we can. Even that may not be right. 9 develop mesothelioma from background levels? 10 Q. Would you state that by 1964, asbestos was 10 A. Now this is a merry-go-round. As I said, I 11 conclusively proven to cause lung cancer? 11 don't know what the threshold is. And you're saying do 12 A. Well, I said that Selikoff s paper was one 12 1 know what the threshold is. 13 which stirred up a lot of thought. There was some 13 I don't know what it is. Idiopathic, 14 dissension as to whether he had considered everything 14 of course, means unknown. Unknown from what? No one 15 that he should have considered. 15 has been able to pin it down. But there are situations 16 But his work was certainly very much 16 where there have been cases of mesothelioma, as we 17 definitive as to the relationship between asbestos and 17 talked about this morning, where there was no known 18 lung cancer. 18 exposure to asbestos. 19 Q. Are you aware of any medical literature ever 20 published which said that asbestos did not cause lung 19 So there has to be something else that 20 causes it. What it is, I don't know. I don't know 21 cancer? 21 whether it's exposure to some other material. It may be 22 A. You asked me that before, and I told you I 22 hereditary. 23 was not aware of something that says it is not. Very 23 It's just something that there's been 24 seldom is that sort of thing published anyway. 24 almost no study done to try to determine it. 25 Q. How much exposure, based on your review of 25 Q. I guess the purpose of the merry-go-round is RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 101 - Page 104 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 105 Page 107 1 this: I believe you said that everyone is exposed to 1 But most of us live in an environment 2 some level of asbestos. 2 where there is some asbestos in the air. Not very much. 3 A. That's right. 3 Very, very little. 4 Q. There are background levels of asbestos that 4 Now I don't know what the difference is 5 everyone is exposed to? 5 between very, very little, and the level that will cause 6 A. Right. 6 mesothelioma, but I know that there has to be a 7 Q. You also said that there must be some 7 threshold. There has to be something to cause it. 8 threshold limit of exposure to asbestos below which 8 Q. In the study that you were referencing that 9 mesothelioma will not occur because there are some 9 was conducted somewhere in the Mid East, some isolated 10 people who have no known occupational exposure to 10 population, do you know if digestion studies were done 11 asbestos which develop mesothelioma? 11 of the lungs? 12 A. And we have the opposite of that. We have 12 A. 1 don't know. 13 many, many people who have been exposed to high 13 Q. When was the first report of air sampling for 14 concentrations, relatively high compared to background, 14 asbestos exposures in the literature? 15 who do not develop mesothelioma. 15 A. Of course, Meriwether did some but not much. 16 We have cases of people with asbestosis 16 There were reports of asbestos disease, asbestosis, 17 who don't develop mesothelioma. We have people with 17 before there was much done in the way of air studies. 18 high levels, relatively high levels; we have people with 18 1 don't recall. Probably somewhere in 19 very low levels that don't get it. We've got people 19 the early '30s. 20 somewhere in between that do. 20 Q. Do you know how many articles discussing air 21 Q. My question is this: Your basis for your 21 sampling for asbestos exposures there were in the 22 opinion that there must be a threshold exposure to 22 medical literature by the 1960s? 23 asbestos under which mesothelioma will not occur is that 23 A. No, I don't. 24 there are certain people who develop mesothelioma where 24 Q. Would there have been many articles by the 25 we can't find any identifiable exposure to asbestos. 25 1960s discussing air sampling as a means of determining Page 106 Page 108 1 But you also say that everybody -- and I assume that 1 asbestos exposure to workers by the 1960s? 2 would include those people who developed mesothelioma 2 A. Well, 1 think about my own files, and I can't 3 that you're referencing -- has asbestos in their lungs. 3 separate these as to which are air studies and which are 4 And my question to you is: Do you 4 some of the medical studies. 5 believe it's possible that the asbestos that they were 5 But it's probably a stack eight, ten 6 exposed to through background levels is causing their 6 inches high of studies. 7 mesothelioma? 7 Q. A number of articles? 8 MR. WOLCOTT: Objection to form. 8 A. Oh, asbestos has been written on many, many 9 A. The study was, to me, quite convincing that 9 times, yes. 10 they had done everything they could to determine in that 10 Q. When would it have been reasonable for an 11 particular study that there was no asbestos exposure, no 11 employer to begin sampling the air for asbestos 12 known asbestos exposure, background or anything else. 12 exposures to its employees if it was manipulating and 13 Q. (BY MR. BARLOW) What study are you 13 using asbestos in its workplace? 14 referencing? 14 MR. WOLCOTT: Objection to form. 15 A. This is a study that was done -- it was in 15 A. I'm going to assume when you say 16 the Mid East, India, Afghanistan, somewhere in that 16 "manipulating asbestos," that you mean that they were 17 area. I don't recall right now exactly where. Isolated 17 making something - either they were mining, processing 18 village. 18 or manufacturing something with asbestos fibers. 19 But no known cases of mesothelioma -- I 19 Q. (BY MR. BARLOW) We can do it that way first. 20 mean there were cases of mesothelioma with no known 20 A. Well, the first best known study was, of 21 exposure. 21 course, the Dreessen study in 1938. And that was an 22 I probably misspoke, and you're picking 22 asbestos textile industry. 23 on it, and rightfully so. There are obviously people 23 But there had been some sampling done 24 who have never been exposed to asbestos, I would think, 24 before because Dreessen followed practices that had 25 somewhere. Those people, it was believed, were not. 25 existed for dust sampling, not particularly necessarily RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 105 - Page 108 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 109 Page 111 1 just for asbestos. 1 work practice to not monitor the air? 2 So I think the people who were 2 A. It all depends on the individual 3 manipulating it may well have done some air sampling at j 3 circumstances. That could very well be the case, that 4 some time through the '30s. 4 there was really no violation of good practice at all if 5 Q. Let me see if I'm understanding what you're 5 they did not believe that they had concentrations which 6 saying. A manufacturer using raw asbestos, if they were 6 were harmful. 7 acting with reasonable care, would have monitored and 7 And if they compared it to what they 8 air sampled during the 1930s for asbestos? 8 would have known about textile mills, they might have 9 A. You didn't put in the "reasonable care." I 9 said: We don't have any problem. This is no concern. 10 think that you would probably find that there were some 10 And you have to also keep in mind, now 11 studies being done there, and the Dreessen studies in 11 that asbestosis, while it was a known disease, was very 12 1938 was the study that said we think that 5 million 12 rare in this country, very rare. 13 particles per cubic foot is a protective concentration. 13 Q. By 1950, would it have been a violation of 14 And there might not have been a whole 14 good work practice to not monitor the asbestos exposures 15 lot of air sampling done before that. 15 to employees in an area where pipe insulation was being 16 Q. What I'm asking, is if a manufacturer of 16 utilized, asbestos pipe insulation? 17 asbestos products was utilizing raw asbestos in its 17 A. Where in pipe insulation manufacturing? I 18 plants, if it was exercising good practices, would it 18 don't know. You would have to be far more specific than 19 have been air monitoring by, say, 1940? 19 that. 20 MR. WOLCOTT:. Objection to form. 20 Q. I'in sorry. My question may not have been 21 A. Again, we're going to have to say what were 21 clear. I'm not talking about a manufacturer now. I'm 22 the probabilities. We know that there was concern for 22 switching gears. 23 the concentrations in the shipyard starting in the early 23 Where pipe insulation was being 24 '40s and the techniques were there. 24 utilized, would it have been -- and by "utilized," I 25 The suggested concentration was there. 25 mean installed on the pipes -- would it have been a Page 110 Page 112 1 And I think that an employer would have to exercise 1 violation of good work practices to not monitor the 2 their own judgment as to whether they needed to air 2 exposures to workers in that area by 1950? 3 sample their particular operation. I don't know what 3 MR. WOLCOTT: Objection to form. 4 that would have been. 4 A. Okay. It's my turn to make sure that I've 5 MR. BARLOW: Object as nonresponsive. 5 got your question. Are you asking in my opinion if it 6 Q. (BY MR. BARLOW) In your opinion, would it 6 was a violation of good practice to not air sample where 7 have been a violation of good practices by 1940 for 7 insulators were insulating pipe? Is that your question? 8 someone to not monitor the levels of asbestos in the air 8 Q. (BY MR. BARLOW) Yes. 9 for their employees if they were utilizing raw asbestos 9 A. I don't think it was a matter -- now we have 10 in their manufacturing process? 10 a lot of negatives in there. That is not an indication 11 A. Not necessarily. 11 of poor practice, no. 12 Q. Under what conditions would it not have been 12 Q. By 1960, would it be a violation of good 13 a violation of good practices? 13 practice to not air monitor where insulation was being 14 A. Well, depending on how much they were using, 14 installed? 15 the circumstances. Actually if we go back to the 15 A. Again, it would not have been. 16 Meriwether studies which involved the late '20s, early 16 Q. By 1970, would it have been a violation of 17 '30s -- and I believe it's 1933 Meriwether published and 17 good practices to not air monitor where asbestos 18 said we've solved the problem. 18 insulation was being installed? 19 By use of local dust ventilation we 19 A. Again, now we're talking about pipe 20 don't need to be concerned about exposure anymore. And 20 insulation or we're talking about aboard ship? Or where 21 that was in the textile industry. 21 are we talking about? 22 Q. Am I understanding you to say that if by 1940 22 I guess I should have asked this 23 a manufacturer of asbestos was utilizing some sorts of 23 question a little bit earlier. 24 industrial controls -- excuse me -- engineering 24 Q. Outdoors. 25 controls, then it may not have been a violation of good 25 A. Okay. Outdoors. No, it was not a violation RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 109 - Page 112 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 113 Page 115 1 of good practice. 1 A. Where? 2 Q. Would it have been a violation by 1960 of 2 Q. Outdoors. 3 good practice, to not air monitor inside an enclosed 3 A. Probably not, no.Because once again, we 4 area where asbestos insulation was being installed? 4 have to keep in mind that what we're talking about as 5 A. Again, this would depend on what was being 5 far as disease-causing concentration is eight hours a 6 done. Was it necessary to do a iot of cutting and 6 day, five days a week, 40 years of exposure. And . ou 7 molding? And how much ventilation was there? What was 7 just don't get that kind of exposures. 8 the enclosure? It might have called for monitoring, it 8 Q. Can you tell me what you rely on to support 9 might not have. 9 your opinion that it would not be a violation of good 10 Q. By 1970, would it have been a violation of 10 work practices to allow someone today to cut asbestos 11 good work practices to not air monitor where asbestos 11 pipe covering outdoors without air monitoring or 12 insulation was being installed outdoors? 12 protection? 13 MR. WOLCOTT: Objection to form. 13 A. Well, the fact --you have toevaluate this. 14 A. No, it would not have been a violation of 14 But how often do they have to cut the pipe? How do they 15 good practice. 15 cut it -- I'm sorry, the insulation. And how do they 16 Do you want to do 1980? 1990? Do you 16 cut it? What fraction of their day is that being done? 17 want to do 2000? 17 We also have to consider what are the 18 Q. (BY MR. BARLOW) We'll do 1980. By 1980, - 18 size of the particles that are released when this is 19 A. I don't think it's ever been an indication of 19 done. Cutting creates large particles as far as 20 poor practice not to monitor, installation of asbestos 20 respirable ones are concerned. 21 outdoors, even today. 21 So while it may appear to be a fair 22 Q. Even today, it would not be a violation of 22 amount of dust, most of it would not be respirable. And 23 good work practices to not air monitor the exposures to 23 we have to consider what is it that's going to get into 24 asbestos from the installation of asbestos pipe covering 24 the lungs before we can consider a potential health 25 outdoors? 25 problem. Page 114 Page 116 1 A. That's correct. It would not be an 1 Q. Is it your opinion, that if there is visible 2 indication of poor practice. 2 asbestos dust, there is a hazardous situation? 3 Q. Explain to me why that would not be a 3 A. No. 4 violation. 4 Q. Do you believe that if one can seeasbestos 5 A. Well, there have been samplings done, and 5 dust, then he is over the threshold limit? 6 they were done primarily back in the '70s to determine 6 A, Not necessarily. 7 compliance with regulation. And the levels are 7 Q. Under regular lighting,if the asbestos dust 8 essentially background. 8 is visible, is the threshold limit value of 5 million 9 Q. It is your belief that the installation of 9 particles per cubic foot being violated in that area? 10 asbestos insulation, pipe insulation, outdoors is 10 A. Well, we're no longer talking about 5 million 11 similar to background levels of asbestos exposure? 11 particles per cubic foot. That passed many, many years 12 A. On the sampling that has been done, that's 12 ago. 13 generally what has been found, somewhere in the order of 13 So I don't see the pertinence of the 14 background. 14 question. It might or might not be. Again, it's going 15 We're talking about a level here, an 15 to depend on the size of the particles, it's going to 16 acceptable level of. 1, and these levels are below that. 16 depend on how the light is striking it, whether you can 17 Q. We've been talking about installation. Do 17 see it or not. 18 you understand installation in your definition to 18 So I don't think you can depend on what 19 include at some times cutting asbestos pipe covering for 19 you see to necessarily say that's what the concentration 20 that installation? 20 is going to be. 21 A. Uh-huh. 21 Q. Is it your opinion that a worker today could 22 Q. So we're very clear, even today it would not 22 safely cut asbestos insulation pipe covering as a part 23 be a violation of good work practices to allow someone 23 of their career in insulating pipe in, say, an outdoor 24 to cut asbestos pipe insulation for installation without 24 area like a refinery without increasing their risk of 25 air monitoring? 25 developing asbestos disease? RUTLEDGE GRAY REPORTING SERVICES Page 113 - Page 116 972.222.4003 * 800.876.3370 * FAX 972.222.6229 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98r317-G Page 117 Page 119 1 A. Probably, yes. Again, you've got other 1 protection, that OSHA would not cite them? 2 things that you might want to take in. But probably 2 A. I'm not sure what OSHA might do. But if they 3 that would be possible. 3 did the air sampling, I'm sure that they would not come 4 Q. So probably today, in your opinion, we could 4 up with a concentration that would indicate a violation 5 still be utilizing asbestos pipe covering outdoors and 5 of the standard, which would probably preclude them from 6 our working men who were installing it would not be at 6 issuing a citation, 7 any real risk? 7 Q. Are you aware of any published literature 8 A. I think that's true. Of course, it's, again, 8 which says that the installation and cutting of pipe 9 an exercise in intellectual futility because we don't 9 insulation that contains asbestos outdoors does not 10 have it. We don't have asbestos pipe covering anymore. 10 violate or does not exceed one fiber per cc? 11 Q. Sure, What is the basis of your opinion that 11 A. I don't know of any such study, no. 12 insulators could safely install asbestos pipe covering 12 Q. I'm sorry. I messed up that question. I 13 outside? 13 should have said .1 fibers per cc. 14 A. Well, we've gone over this in several 14 A. The answer is the same. 15 different ways. The fact that what sampling was done 15 Q. Let me ask you: Are you of the opinion that 16 mostly in order to establish compliance with the federal 16 asbestos-containing pipe covering is capable of causing 17 regulations, that the concentrations are just so low, 17 asbestos-related disease? 18 that they don't present a potential problem. 18 MR. WOLCOTT: Objection to form. 19 Q. Can you name for me all of the published 19 A. The pipe covering? No. 20 medical literature which shares your opinion on that 20 Q. (BY MR. BARLOW) You think that someone could 21 issue? 21 work with asbestos-containing pipe covering for an 22 A. No, I cannot. 22 entire career, 40 years, and they're not going to be at 23 Q. Can you name any piece of published medical 23 an increased risk of asbestos-related disease? 24 literature which supports your opinion that asbestos 24 A. That's a different question. Which one do 25 pipe covering could be utilized safely today so long as 25 you want to ask? Page 118 Page 120 1 it was being installed outside? ! Q. Explain it to me. 2 A. I don't think there is such a study. 2 A. Well, you said does pipe covering cause 3 Q. Can you name for me every government agency 3 disease. No, it can't. Now if you start doing things 4 which shares your opinion, that asbestos pipe covering 4 with it, then it is conceivable. 5 could be safely utilized, so long as it was installed 5 Now the only place you're going to find 6 outdoors? 6 asbestos insulation these days, of course, is something 7 A. I don't know that there is an agency that 7 that's been in place for a long, long time. That's a 8 would do this. I think that the OSHA standard at the 8 different matter. 9 current level of. 1 fibers per cc for eight hours a day, 9 It's entirely different than when 10 five days a week, for a working lifetime wouldn't cause 10 you're putting it on. 11 any problem at all. 11 Q. We need to distinguish between asbestos in 12 Q. What air monitoring studies are you referring 12 place and installation? 13 to when you say that you believe asbestos pipe 13 A. Or when you're taking old asbestos off. It's 14 insulation could be installed outdoors safely without 14 a different situation. 15 causing levels of asbestos exposure above background? 15 Q. Are you of the opinion, that asbestos 16 A. Well, some that I did myself, as well as 16 insulation when it's installed, can potentially cause 17 other people in my department, discussions with other 17 asbestos disease? 18 industrial hygienists. And the fact that OSHA just 18 A. Are you saying it has been installed, there's 19 doesn't pay any attention to that. 19 been mastic put on -- 20 There are regulations and people follow 20 Q. As it's being installed. 21 them, but you aren't going to find any cases where OSHA 21 A. -- as it's being installed? 22 has gone out and cited anybody for it. 22 Q. Yes. 23 Q. Are you of the opinion that if someone was 23 A. 1 think that's what we've been talking about, 24 having asbestos pipe insulation installed today outdoors 24 isn't it? 25 without utilizing air monitoring or respirators or other 25 Q. Under what circumstances can asbestos RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 117 - Page 120 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 121 Page 123 1 insulation cause asbestos-related disease? 1 number of years. Many of them had worked in the 2 A. Now you're saying insulation, so you're not 2 shipyards where the concentrations were high because 3 confining it -- 3 they were in enclosed spaces. We have no idea what the 4 Q. Pipe covering. 4 exposure levels were. 5 A. Just pipe covering? 5 Q. Are you of the opinion that had the 6 Q. Yeah. 6 insulators in Selikoffs study never worked inside, 7 A. And just outside? 7 Selikoff would not have found asbestos-related disease 8 Q. No. 8 among them? 9 A. Anywhere? Well, I think, then, it depends on 9 A. I think his results would have been a great' 10 where it's being done, how much is being done, how 10 deal different if they had been done in Houston as 11 confined it is, is there ventilation. 11 opposed to New York City. 12 There are a whole lot of things that 12 Q. And why do you make the distinction between 13 would have to go into consideration. 13 Houston and New York City? 14 Q. Is it your opinion that installing asbestos 14 A. Because New York City, everything is 15 insulation pipe covering is only hazardous when it's 15 enclosed. 16 done inside a confined space? 16 Q. And Houston wasn't? 17 A. Well, let's make sure we understand. None of 17 A. Everything is wide open. 18 it is going to happen today, anyway. 18 Q. So do you believe that if Selikoff had 19 Q. Sure. I'm talking about historically. 19 conducted his study in Houston where everything was open 20 A. Historically? I'm sure that you could have 20 he would not have found an increased rate of asbestos 21 probably done it under certain circumstances where it 22 might be, 23 But under normal practice, probably 24 not. There was no hazard associated with installing 25 pipe covering outside in the past. 21 disease among insulators? 22 A. I said 1 thought his results would have been 23 considerably different than what they were. 24 Q. How so? Much lower? 25 A. Exposures would have probably been lower, the Page 122 Page 124 1 Q. Right. And that's what I'm trying to figure 1 difference between working outside and working inside. 2 out. I understand that's your opinion. 2 Q. Do you think that refineries should be 3 What I'm trying to figure out, is under 3 allowed to utilize asbestos-containing pipe covering 4 what circumstances does installing asbestos pipe 4 today? 5 covering present a hazard to the worker? 5 A. I don't really think my opinion makes one 6 A. Well, of course, it's when it exceeds the 6 whit of difference, because it's not available. And 1 7 exposure limits. 7 don't think anybody is going to necessarily go back to 8 Q. What conditions do you need? 8 using asbestos -- a pipe covering that contains some 9 A. What conditions? Whatever I would dream up 9 asbestos. 10 is only that. I suppose that if you were underground in 10 Q. Hypothetically speaking, do you believe that 11 a utility tunnel somewhere, ventilation was very poor, a 11 refineries should be allowed to utilize and have 12 lot of it was being put in, care was not really being 12 installed in their plants asbestos pipe covering today? 13 taken as to what they were doing or how they were doing 13 MR. WOLCOTT: Objection to form. 14 it, I'm sure you could probably exceed the exposure 14 A. I thought that's what you just asked me. To 15 limits. 15 me, I don't see where it really makes any difference 16 Q. We've talked a lot today about the Selikoff 16 what 1 would say, because it isn't going to happen. 17 study in 1964; right? That was of insulators, that 17 And I am not going to suggest that they 18 study? 18 start making asbestos insulation, because I think there 19 A. That's right. 19 are better materials. And we have them today. So why 20 Q. He found a high rate of asbestos-related 20 have asbestos? 21 disease among insulators; correct? 21 MR. BARLOW: Object as nonresponsive. 22 A. Yes. 22 Can you read my question back, please? 23 Q. The insulators in SelikofFs study, where, 23 (PREVIOUS QUESTION READ) 24 were they getting their asbestos disease? 24 Q. (BY MR. BARLOW) Can you answer that? 25 A. Of course, they had been working over a 25 A. I did. RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 121 - Page 124 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 125 Page 127 1 Q. You don't bare any other answer than what 1 A. No. 2 you've given me? 2 Q. Do you have any evidence that at the 3 A. Beg your pardon? 3 Pontiac - I'in going to refer to the refinery as the 4 MR. WOLCOTT: Objection to form. 4 Pontiac, because it changed over time. 5 Q. (BY MR. BARLOW) Assume that they did make 5 But you understand that when I say 6 asbestos pipe covering today. 6 "Pontiac," I'm talking about when it was Pontiac, when 7 Do you think that refineries should be 7 it was Charnplin, and -- 8 allowed to have that asbestos pipe covering installed in 8 A. Okay. Are we going to confine this to the 9 their plants? 9 east plant, the first plant, the small one? 10 MR. WOLCOTT: Objection to form. 10 Q. The east plant where Mr. Clark worked. 11 A. I think that if there was asbestos-containing 11 A. Okay. 12 insulation that was available today, that it could be 12 Q. Do you have any evidence that the Defendants 13 used without harming people's health, yes. 13 in this case did not measure the eight-hour time- 14 Q. (BY MR. BARLOW) What precautions would be 14 weighted average airborne concentrations of asbestos to 15 necessary to take to prevent it from harming people's 15 which Mr. Clark was exposed? 16 health today? 16 MR. WOLCOTT: Objection to form. 17 A. Well, it would depend on where it would end 17 A. Do 1 have evidence that they did not? I 18 up. 18 .guess I don't have any evidence one way or the other. 19 Q. In a refinery? 19 Q. (BY MR.BARLOW) You don't know whether they 20 A. In a refinery, outside in Texas? 20 monitored or not? 21 Q. Uh-huh. 21 A. I don't recall seeing that. I do know that 22 A. Probably not too much. Maybe in certain 22 they brought in a consultant, an industrial hygiene 23 operations you would want to have some local exhaust 23 consultant, for other things. 24 ventilation. 24 And he at one time even looked at some 25 You might want to have some respiratory 25 materials, as to whether they contained asbestos or not. Page 126 Page 128 1 protection, depending on where the operations were being 1 And thei-e was no indication that he felt that there was 2 carried out. 2 any need to do sampling for asbestos. 3 But I don't think there's any question 3 Q. After 1972, would the plant have been 4 that it could be handled safely. 4 required to sample for asbestos in the air? 5 Q. Do you know whether or not asbeftos- 5 MR. WOLCOTT: Objection to form. 6 containing pipe covering has been banned? 6 A. The standard states that if there is a belief 7 A. I don't think it's been banned. 7 that the workers are exposed in excess of the standard, 8 Q. Do you know whether or not asbestos- 8 that sampling has to be done. So it's a judgment that 9 containing spray-on products have been banned? 9 was left up to the employer. 10 A. Yes. 10 Q. (BY MR. BARLOW) In your opinion, based on 11 Q. Do you agree with the banning of asbestos- 11 what you know about the plant, the Pontiac plant, would 12 containing spray-on products? 12 it have been a violation of the OSHA standard to have 13 A. I don't know whether there has been increased 13 not monitored asbestos in the air after 1972? 14 potential for damage to buildings because of not using 14 MR. WOLCOTT: Objection to form. 15 it, but there are probably other products that are doing 15 A. It would be my opinion that they were not in 16 that part of it effectively. 16 violation. 17 I don't think it was necessarily 17 Q. (BY MR. BARLOW) What do you base that 18 necessary, but it's done so it's done. 18 opinion on? 19 Q. Do you know what the World Health 19 A. Because it says if you believe that you were 20 Organization's opinion is on whether or not asbestos- 20 in excess of the standard, then the monitoring should be 21 containing products should be allowed for use today? 21 done. 22 A. No. 22 But otherwise, it was left up to them. 23 Q. Do you know what the National Cancer 23 And 1 don't think there was any indication that they 24 Institute's opinion is on whether or not asbestos- 24 were in excess of the standard. 25 containing products should be allowed for use today? 25 Q. Do you know if the Pontiac facility ever RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 125 - Page 128 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G Page 129 Page 131 1 employed isolation of asbestos as an engineering 1 ashestos? 2 control? 2 A. If they were doing tests, such as removing 3 A. When they were having asbestos removed they 3 large amounts of asbestos-containing insulation, then 4 isolated areas. 4 work clothes probably should have been laundered 5 Q. When was that? 5 separately. 6 A. Specific dates, I don't know. But this was 6 Q. How much asbestos can you remove withe-, c 7 in the depositions. When they did this, then they 7 utilizing engineering controls before it would be a 8 brought in outside contractors who did isolate separate 8 violation of 1970s good work practices? 9 areas. 9 A. Well. I think you have to take into 10 Q. Do you know when they began isolating 10 consideration not only the amount - are you saying -- 11 asbestos for removal? 11 not talking about regulations but just, say, 1971? 12 A. The dates? No, I don't. 12 Okay. How much of it? How long is it going to take? 13 Q. Do you know what decade it was? .3 Is this a job that a person is going to do day after day 14 A. In the early '70s, as I recall. 14 after day, or is it one he's going to do this week and 15 Q. You believe that they began in the early '70s 15 never again? 16 to isolate asbestos when it was removed? 16 There are many, many, many different 17 A. When they removed it, yes, as far as I could 17 things that have to be taken into consideration. 18 tell, whenever they removed it, they had outside 18 Q. After 1972, if a refinery, outdoor refinery, 19 contractors do it and they were isolated. 19 was having people remove asbestos insulation without 20 They isolated the areas. Exact date 20 utilizing engineering controls, would they have been in 21 I'm not sure when they might have removed the first. 21 violation of OSHA regulations? 22 Q. If an outdoor refinery in the 1970s was not 22 A. Might have been; might not have been. 23 employing isolation as an engineering control during the 23 Q. Can you explain that? 24 removal of asbestos, would that have been a violation of 24 A. Well, again, it would depend on what it was. 25 good practices? 25 But how long is it going to take? Is this a job that Page 130 Page 132 1 MR. WOLCOTT: Object to the form. 1 people are going to do one after another? 2 A. Not necessarily. Because you could remove 2 If you are a company that does that as 3 with glove, boxes, with wetting down, with a number of 3 a full-time business, then that's a whole lot different 4 techniques that would be available, again depending on 4 than if this is a job that's going to be a part of a day 5 how much you were removing. 5 and that's the end, it's never going to be repeated. 6 Q. (BY MR. BARLOW) Would it have been a 6 Again, this is not something that you 7 violation of good practices in the 1970s to not utilize 7 can say yes or no to. It has to be the circumstances. 8 any engineering controls during the removal of asbestos 8 Q. What years did you work for OSHA? 9 pipe covering? 10 A. Well, it depends again on how much you're 9 A. 1986 to '89. 10 Q. If you had been an inspector at OSHA in, say, 11 talking about. If you're talking about removing maybe 11 1972 to 1978, and you had walked into a plant and saw 12 15 or 20 feet, probably not. 12 them removing asbestos without respirators or 13 But again, you have to base this on how 13 engineering controls of any sort, would you have issued 14 much, how long is it going to take, who's going to be 14 a violation? 15 exposed, how much. 15 A. Oh.no. Not just on that. 16 Q. Do you know if Pontiac laundered its 16 Q. What would you have done? 17 employees' work clothes at work? 17 A. Again, depending on the circumstances, I 18 A. I don't know. 18 might have done some air sampling. 19 Q. Do you believe that it would have been a 20 violation of good work practices to not launder those 19 Q. And only if they were above the peak exposure 20 would you have issued -- 21 clothes if the employees were working around asbestos? 21 A. If they were above the peak exposure, the 22 A. Not necessarily. 22 15-minute limit, that considerably could have been a 23 Q. Are there any circumstances under which it 23 violation. 24 would be a violation of good work practices to not 24 But if they were even at the threshold 25 launder those clothes if they were working around 25 of the PEL, the OSHA permissible exposure limit, it RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 129 - Page 132 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G Page 133 Page 135 1 might or might not have been a violation. 2 Again, the compliance officer has to l Q. (BY MR. BARLOW) Do you know when the first O article in the scientific literature stated that 3 take into consideration everything else that we've been 3 employees should be warned about the risks associated 4 talking about because the OSHA permissible exposure 4 with asbestos? 5 limits are based on eight hours a day, five days a week 5 A. No. I know of a publication that said it 6 for a working lifetime. 6 should not. This was the first edition of the Patty 7 Q. It seems to me from talking to you about your 7 hooks on Industrial Hygiene & Toxicology. S experience with asbestos exposures, that today's 8 That was a debate for a long, long time 9 regulations are much more stringent than what you 9 as to whether it was wise to tell people of the 10 believe to be necessary to keep workers safe. 10 potential consequences or not. 11 Would you agree with that? Is that a 11 I personally think -- and I don't ever 12 fair statement? 12 recall having any other thought -- that yes, you should. 13 A. Well, I think that they are very, very 13 This was a part of being able to protect people. [ 14 protective, yes. 14 think you have to be circumspect in how you do this so 15 Q. Do you believe that today's standards with 15 that you don't necessarily cause people to have undue 16 regard to asbestos are overly protective? 16 concern. 17 A. Probably are, yes. 17 You can work with almost anything if 18 Q. To what do you attribute the 18 you follow the precautions that are necessary to prevent 19 overprotectiveness of today's standards with regard to 19 overexposure. 20 asbestos? 20 As you tell them, you should be able to 21 A. Well, based on the fact of what we know of 21 demonstrate to them how they can protect themselves. 22 the number of new cases in people who have only worked. on Q. Based on your review of the medical and 23 say, for the last two decades. 23 scientific literature, what is the first article you can 24 We're just not seeing much in the way 24 identify which said workers who are working around 25 of new disease other than what could have been brought 25 asbestos should be informed of the risks associated with Page 134 Page 136 1 about by earlier exposures. 2 We have reduced the concentrations down 1 it? n A. 1 don't know that it was the first by any 3 to extremely low levels. We have a public that is far 3 means, but I think that the first standard said this. 4 more aware, employers and employees, as to the diseases 4 Q. First standard? 5 that can occur from it. 5 A. First OSHA standard on asbestos. 6 So I just think more care is being 6 Q. 1972? 7 taken today than before. How much of this is due to the 7 A. But 1 doubt that that was the first time it 8 OSHA regulating? Probably a fair amount. 8 had been said. 9 But along with the regulation goes the 10 increased knowledge and practices that we're enjoying 9 I would strongly suspect that the 10 Public Health Service and NIOSH had both made statements 11 today. 12 Q. You say in the last 20 years, we haven't seen 11 like that long before. 12 Q. Do you believe that there was anything in the 13 any new asbestos disease. 13 medical literature prior to the 1960s saying that 14 A. I didn't say we haven't seen any. I said 14 workers should be advised of the risks of asbestos? 15 it's very little. 15 A. I thought that's just what we were saying. 16 Q. Very little new asbestos disease. 16 I'm not sure what the date was. I really don't know. 17 A. Most of what we see, of course, goes back 20, 17 But I'm sure -- I know that it was 18 30, 40 years. 18 stated in the asbestos standard, but I'm sure it had 19 Q. Do you consider the rate of asbestos disease 20 that we see today to be an acceptable rate of disease? 21 MR. WOLCOTT: Objection to form. oo A. I don't think any disease is acceptable. I 19 been said before. 20 Q. You just can't recall? 21 A. Well, you know, it just wasn't -- the O'! publication, the first Patty publication was 1953. And 23 have heart problems. I don't find that acceptable. 23 I don't think it was repeated in the 1958 version. 24 Am I happy that the doctors can do 24 Q. When you first saw the Patty publication 25 something about it? You bet. 25 which said that workers should not be warned about -- RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 133 - Page 136 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PE__________________ CAUSE NO. 98-317-G Page 137 | Page 139 1 was it specifically asbestos? 1 A. Absolutely. 2 A. No. Any matter. 2 Q. Do you believe in the 1970s workers were 3 Q. When you first saw the Patty publication 3 entitled to be informed by their employer of the hazards 4 which said that workers should not be warned about 4 of asbestos being utilized around them? 5 hazards in the workplace, what was your reaction to 5 A. Well, let's say how is it being utilized? If 6 that? 6 we're talking about working in a refinery where there is 7 A. At this point I don't know what it was. I 7 asbestos insulation installed, already there, no, 8 couldn't say. 8 there's no reason to inform them of anything. 9 Q. You disagree with that today? 9 Q. Does a worker in a refinery who is having 10 A. I disagree with it today. And I suspect at 10 asbestos insulation installed around him, currently 11 the time -- now mind you, when that was published in 11 installed, in the 1970s, did he have a right to be 12 1953 I had not been in this business very long. Frank 12 informed of the hazards of asbestos? 13 Patty had been for a long, long time. 13 A. Again, we're going to have to look at what 14 I would probably have to think, he's 14 dates we're talking about. 15 been around a long time. I should perhaps pay some 15 At some point in there, yes, because 16 attention to it. But it was not a practice where I 16 that is a part of the standard. Was it a hazard to his 17 worked. 17 health? Probably not. 18 Q. Do you believe that an employer should have 18 Q. So after 1972, is it your opinion an employee 19 warned in the 1950s its employees that asbestos was 19 would have the right to be informed by his employer of 20 being utilized around them? 20 the hazards of asbestos if asbestos pipe insulation was 21 A. No, not necessarily. 21 being installed in his work area? 22 Q. Do you believe that an employer in the 1960s 22 A. He was not doing it himself? 23 should have warned its workers of the hazards of 23 Q. Right. 24 asbestos if asbestos was being used around them? 24 A. If this was not a part of his job and he was 25 A. Again, I have to say -- and this would be the 25 not being excessively exposed, then there's no need to. Page 138 Page 140 1 case in the '50s as well -- what were the circumstances? 1 It might have been practice that they 2 Was there an exposure level that could be hazardous? 2 did just generally because this was a period when there 3 Then yes, they should have been told. If it wasn't, 3 was great change going on with regard to asbestos. 4 then it's immaterial. 4 In the Pontiac refinery, they even in 5 Q. I think I know how this is going to end up so 5 the early '70s specified nonasbestos insulation. 6 maybe I can cut it off. Let's say today asbestos was 6 Q. After 1972, if asbestos insulation was being 7 being used in a refinery, asbestos insulation. 7 removed in an employee's work area, was the employer 8 Would that refinery be violating good 8 under a duty to warn the worker about the hazards of 9 work practices to not inform its employees of the 9 asbestos? 10 hazards of asbestos? 10 A. Depending on the circumstances, he might or 11 A. Well, we have to -- again, as we said before, 11 might not be. Again, how much? How long is the job 12 it can't happen. But the product itself would have to 12 going to take? What's the percentage of asbestos there? 13 be labeled, depending on what the concentration of 13 What is the probability of excessive exposure? 14 asbestos was, above one percent. 14 Q. So in your opinion, it was possible for an 15 So that would in itself be a warning. 15 employer to not be violating good work practices in not 16 However, there are also regulations that say that you 16 informing its employees of the hazards of asbestos when 17 must tell people. 17 asbestos was being removed in their work area? 18 And the hazard communication standard 18 A. If the circumstances were such that the 19 would take care of it, whether it's asbestos or anything 19 probability was that there was not going to be any 20 else; that workers are entitled to know what they're 20 excessive exposure, then there was certainly nothing 21 working with, what the potential hazards are and how 21 compelling to say, "Hey, we're doing something or 22 they can protect themselves. 22 other." 23 Q. Do you agree with that today? 23 Q. I take it it's your opinion in this case, 24 A. The Hazards Communications Act? 24 that the owners of the Pontiac facility, the Defendants 25 Q. Yes. 25 in this case, did not violate any standard of care? RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 137 - Pase 140 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G Page 141 Page 143 1 A. After reading the depositions and visiting 1 A. You're saying any employee? 2 the plant, it seemed to me that they were probably ahead 2 Q. Any employee. 3 of their time in some respects with regard to the 3 A. Well, from what I have seen, I don't see -- 4 concern they had for their employees. 4 oh, their employees? No, I don't think any of their 5 They had their safety program; they had 5 employees were. 6 the nurse there full-time; they had a part-time 6 1 don't know about the employees for 7 physician. And this was a very small plant, I think 7 the people who were removing the asbestos, though I 8 around 300 employees, and certainly not one that 8 suspect they were being protected too. 9 experience had been that they should be concerned -- 9 Q. What I'm trying to do is get to the crux of 10 they were concerned about fire, explosion, they were 10 your opinion. Is the crux of your opinion, that because 11 concerned about some exposure to things like benzene. 11 of none of Pontiac's employees were at an increased 12 So they were trying to do what they 12 risk, in your opinion, of developing asbestos-related 13 could to be a good employer. 13 disease, they had no duty to warn them about the hazards 14 Q. Did the nurse that was employed at the 14 of asbestos? 15 Pontiac facility do anything to address, in your 15 A. Well, I agree, because I haven't seen 16 opinion, the potential asbestos hazards associated with 16 anything there, nor have 1 read anything that would 17 working at the plant? 17 indicate that there was any potential hazard of asbestos 18 A. I don't know what she did. 18 disease from conditions in that plant. 19 Q. But to you, the nurse was obviously there for 19 Now the people may have worked 20 some job-related injuries, I suppose? 20 somewhere else. 1 don't know. That's not a part of my 21 A. Yes. I would have to make some assumptions 21 area of having looked at. 22 there because she was there. She was probably there to 22 But as far as the period of time, 1950 23 take care of anything. 23 to the end of 1970s, I think that they had a good 24 Probably took care of some personal 24 workplace. I do not think they were excessively exposed 25 minor illnesses. It was not unusual. 25 to asbestos. Page 142 Page 144 1 Q. And the part-time physician - I guess what 1 Q. What policies did Pontiac have in place in 2 I'm asking, do you have any evidence that the nurse or 2 the 1950s to ensure that exposures to asbestos were not 3 the part-time physician that was employed by Pontiac 3 excessive when tear-out of asbestos insulation work was 4 were in any way intended to address asbestos-related 4 done? 5 issues? 5 A. I don't have much information on the 1950s 6 A. No. Because frankly, I don't think they had 6 nor have I heard any indication that there was a whole 7 any issues to address. So no, they wouldn't have. I 7 lot of tear-out done then. 8 would doubt that they would have. 8 That's a fairly recent event to go out 9 Q. And that kind of brings me to my next 9 and remove large amounts of insulation. 10 question. Is it your opinion that the owners, or 10 Q. Certainly, asbestos insulation was being 11 defendants in this case, the owners of the Pontiac 11 replaced in the 1950s as it wore out, correct? 12 facility, did not violate any standard of care because 12 MR. WOLCOTT: Objection to form. 13 in the '50s, '60s and '70s, they simply did not have an 13 A. Asbestos insulation usually does not wear 14 asbestos problem at their plant? 14 out. It's removed because of something else. They have 15 A. Well, in answer, yes. Part of this, is that 15 to make a repair for something, and they remove it for 16 when they had jobs that they thought might increase the 16 that. 17 concentration of asbestos, such as removing old 17 If I understand, there's insulation in 18 insulation, they brought qualified contractors in to do 18 that plant today that was put in in 1930 or '31, 19 this under the very best of conditions. 19 whenever it was built. 20 So I think in addition, they were 20 Q. (BY MR. BARLOW) If they're going to change a 21 trying very hard to be a good employer. 21 valve that's insulated, they've got to tear out the 22 Q. Do you believe that an employee of the 22 insulation to get to the valve; is that right? 23 Pontiac facility who worked there from the 1950s through 23 A. Well, that's interesting. Because at the 24 the 1970s was at any increased risk of developing 24 plant visit 1 noticed that flanges were not insulated. 25 asbestos-related disease? 25 Dowels were not insulated. And this was probably RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 141 - Page 144 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 145 Page 147 1 because, yes, this is where you're likely to have to 1 A. Again, depending on how much and where and 2 make a change. 2 under what type of circumstances, there could very well 3 And the amount of heat that you lose on 3 have been no concern whatever. 4 this amount of space is not great; therefore, don't 4 Q. You told me earlier, that bystanders are not 5 insulate it. We can get to it without removing 5 at an increased risk of developing asbestos disease, in 6 asbestos -- or without removing insulation. 6 your opinion? 7 Q. So in 2001, the valves at the plant weren't 7 A. In my opinion. 8 insulated? 8 Q. If you were teaching a course on asbestos, 9 A. Generally, that's right, yes. 9 would you teach that as part of the curriculum? 10 Q. Do you know in the 1950s, whether or not 10 A. 1 would try to emphasize where the exposures LI valves were insulated? 11 would be of concern. I don't think I would say, "Well, 12 A. Well, the part of the plant that was built in 12 when the bookkeeper walks out here to pick up the 13 the'30s, the flanges were not insulated. I don't know. 13 timecards, we don't have to be concerned about that." 14 Obviously, I don't know what was there in 1950. 14 You have to say, "All right. Here are 15 Q. If the owners of Pontiac in the 1950s had 15 the circumstances that we should be concerned about the 16 asbestos removed in their plant, and did not take 16 potential exposure of people to asbestos, when they're 17 precautions such as wear respirators or implement 17 doing such and such and such and such." 18 engineering controls, would they have been violating a 18 Q. Do you have children? 19 standard of care? 19 A. Sure. 20 MR. WOLCOTT: Objection to form. 20 Q. Would you have allowed, say, -- you have a 21 A. I think they would have been practicing 21 son? 22 exactly the same thing that almost everybody else was 22 A. Right. 23 practicing. 23 Q. I know you have a son. Your son is an 24 Q. (BY MR. BARLOW) Would that have been good 24 attorney. 25 work practices? 25 A. I try not to hold that against him. Page 146 Page 148 1 A. As of the date? Yes. 1 Q. If your son had come to you in, say, 1975 and 2 Q. In the 1960s, would it have been good work 2 said, "Dad, I'm working this summer at a refinery, and 3 practices at the Pontiac facility to remove asbestos 3 they're going to be installing and removing asbestos 4 insulation without using respirators or other 4 around me, but I'm going to be working as an operator 5 engineering controls? 5 there," would you have allowed him to do that a he 6 A. Well, without defining how much, how long, 6 wasn't going to be provided a respirator? 7 who's doing it, it could well have been perfectly all 7 A. Absolutely. 8 right. Or maybe you would have made a different 8 Q. Say your son was still working not as a 9 recommendation. 9 lawyer today, but was working in plants. If your son 10 Q. Would it have been a violation of good work 10 came to you today and said, "I'm going to be working in 11 practices to not warn its employees when contractors 11 this refinery, and they're going to be installing and 12 were brought in to remove asbestos insulation in the 12 removing asbestos around me, and I'm not going to be 13 1960s without engineering controls or respirators? 13 wearing a respirator," would you allow him to do that? 14 A. No, I don't think that that would have been 14 A. Well, first of all, I wouldn't have any say 15 an issue. 15 as to whether he would or not. But the questions that I 16 Q. And what do you base that opinion on? 16 would ask, "Where is this? How much of it is going to 17 A. Because it was, in many cases, just a routine 17 be removed? How long is it going to take?" 18 thing. And it was done. Nobody gave it any thought, 18 It could be a problem or not. Probably 19 because there was no indication, even among industrial 19 would not be any problem. 20 hygienists, that that was going to create a problem for 20 Q. If your son came to you today and said, "Dad, 21 anybody. 21 I've got a great job. I'm quitting the practice of 22 Q. In the 1960s, it's your opinion there was no 22 law" - 23 indication among industrial hygienists that removing 23 A. He's going to be an insulator? 24 asbestos insulation without utilizing engineering 24 Q. - "and I'm going to be working around this 25 controls or respirators would be a problem? 25 asbestos that they're making, some new project, and it's RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 145 - Page 148 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PE__________________ CAUSE NO. 98-317-G Page 149 Page 151 1 a great job, but I'm going to inhale one teaspoon of 1 it would have been for silicosis. Probably very shortly 2 asbestos a month." 2 after 1925, that this was a tool that might contribute 3 Would you advise him against taking 3 more to the knowledge of changes occurring in the lungs. 4 that job? 4 Q. By what year should a manufacturer of 5 MR. WOLCOTT: Objection to form. 5 asbestos-containing pipe covering have known that 6 A. Based on this information, no. Because 6 asbestos could cause asbestosis? 7 frankly, it would not indicate any real exposure, 7 A. That probably goes back to the Lanza 8 minuscule. You'd probably get that walking around in 8 publication, Dr. Anthony Lanza. He was with 9 some areas somewhere. 9 Metropolitan Life Insurance Company. 10 My question, is the judgment of giving 10 And that paper was an indication that 11 up law. 11 this was a disease that is certainly possible with 12 Q. (BY MR. BARLOW) I don't know. The law is 12 exposure to asbestos. 13 not such a good job sometimes. Actually, it is. 13 Q. Do you know what year that paper came out? 14 When was it first reported in the 14 Do you remember? 15 literature, that asbestos-exposed workers should be 15 A. It was the mid-'30s, I think. Either '35 or 16 monitored with chest X-rays? 16 '36-, somewhere along in there. 17 A. Well, the first report of asbestos-related 17 Q. So in your opinion, a manufacturer of 18 disease was through X-ray, which was about, I think, 18 asbestos-containing pipe covering should have known that 19 1899, about 100 years ago. 19 asbestos could cause asbestosis by sometime in the 20 The disease was recognized as an entity 20 mid-1930s? 21 in itself about 1925. And those would have all had to 21 A. It was certainly a known disease. And I 22 have been done by -- 22 think that somebody using asbestos in the manufacturing 23 Q. Chest X-ray? 23 process would have had some opportunity to know that, 24 A. -- by chest X-ray. 24 either through their own insurance carrier or somebody 25 Q. 1899, Nelly Kershaw -- the Nelly Kershaw 25 else. Page 150 Page 152 1 case? 1 Q. By what time should a manufacturer of 2 A. I don't remember the name of it. There was a 2 asbestos-containing insulating cement have known that 3 Dr. Murray. 3 asbestos could cause asbestosis? 4 Q. Uh-huh. I think the patient was Nelly 4 A. I'm not even sure that I know when asbestos 5 Kershaw. That was an X-ray? I thought it was an 5 cement was first Parted bein'" manufactured. I don't 6 autopsy. 7 A. It might have been an autopsy. X-rays? I'm 6 think I can answer your question. 7 Q. Well, assume that asbestos insulating cement 8 not sure exactly when X-rays -- but I know that the 8 has been manufactured since the early 1900s. 9 disease asbestosis was given the name as a result of 9 A. Well, I would say probably along the same 10 studies in 1925. And that was X-rays. 10 time as the pipe insulation or other users of asbestos 11 Q. Dr. Cook? 11 as a raw material. 12 A. Cook. Right. And of course, Meriwether was 12 Q. Sometime in the mid-1930s? 13 X-rays. It's been around a long time. 13 A. Probably somewhere in there. 14 Q. Sure. And my question is slightly different, 15 not when X-rays were first utilized to diagnose 14 Q. By what time should a manufacturer of 15 asbestos-containing refractory products have known that 16 asbestos. 16 asbestos could cause asbestosis? 17 My question is, when was it first 17 MR. WOLCOTT: Objection to form. 18 stated in the scientific or medical literature that 18 A. Well, I think that the use of asbestos in 19 chest X-rays should be utilized to monitor workers for 19 refractories is considerably less than in the 20 asbestos disease? 20 manufacture of, say, fabrics or insulation. 21 A. Well, I doubt that it was asbestos that it 21 1 don't know when the use might have 22 first occurred. It probably was silicosis was the 22 been left to warrant. 23 disease that would have been of concern rather than 23 Q. (BY MR. BARLOW) You don't have an opinion on 24 asbestos. 24 that one way or the other? 25 I don't know. I don't even know when 25 A. I don't. RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 149 - Page 152 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, EX AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 153 Page 155 1 Q. You do not? 1 So I think it would depend on the 2 A. I do not, no. 2 amount of material that they were using. It might have 3 Q. When should a manufacturer of asbestos- 3 been the mid-'60s, or it might have been later than 4 containing doth have known that asbestos could cause 4 that. 5 asbestosis? 5 Q. How much later, if not the mid-'60s? 6 A. Well, again, when you say "cloth," I guess 6 A. I don't know. It's kind of hard to pin down. 7 that's different, because there's always other fibers 7 Certainly by the time you have federal regulations, then 8 involved in the making of asbestos fabrics. 8 it behooves everybody to know what's in the federal 9 But this was something that Meriwether 9 regulations. 10 was studying in the early '30s. This was the area of 10 Q. After 1972, were the owners of the Pontiac 11 the industry that Dreessen was studying in 1938. 11 facility under any obligation to monitor their employees 12 So somewhere in that order it probably 12 for asbestos disease? 13 would have been brought to the attention of fabric 13 MR. WOLCOTT: Objection to form. 14 manufacturers. 14 A. I think that we certainly covered that 15 Q. Sometime in the 1930s? 15 subject before. 16 A. Sometime in there. We're talking about 16 Since there was no indication that 17 asbestosis? 17 there was exposure, then certainly there was no reason 18 Q. Asbestosis. By what year should a 18 to monitor them for the disease. 19 manufacturer of asbestos-containing pipe covering have 19 Q. (BY MR. BARLOW) I'm sorry. My question 20 known that asbestos could cause lung cancer? 20 wasn't quite clear. By "monitoring," I meant with chest 21 A. Oh, I think that would be the Selikoff 21 X-rays. 22 studies, 1964, '65. Or sometime other than that. 22 A. Yeah, I understood that. But as we discussed 23 Because his studies were really not 23 earlier, there was no indication that there was a reason 24 published until '67. He presented the papers, but it 24 to think that people were going to be exposed to enough 25 was not a publication. 25 asbestos'to cause disease, therefore, there was no Page 154 Page 156 1 Q. So you don't think that a manufacturer of 1 obligation to do chest X-rays for that. 2 asbestos-containing pipe covering should have known that 2 Q. Who do you consider to be the most 3 asbestos caused lung cancer prior to 1967? 3 authoritative writer on the subject of asbestos-related 4 A. They might have. But then, this was not 4 disease? 5 something that the profession was even much -- they knew 5 A. Living or dead? 6 that there were the case studies, which we've talked 6 Q. Either. 7 about this before. 7 A. 1 guess just from the volume as well as the 8 But the Selikoff studies were the ones 8 period that he covered would be Selikoff. I think he 9 that really brought this home. And even then there was 9 began to wander before he died. 10 some reluctance to accept it. 10 Q. Who do you find to be the most authoritative 11 Q. Would your answer for when a manufacturer of 11 current writer on the issue of asbestos disease? 12 insulating cement should have known that asbestos caused 12 A. 1 don't know if there is an outstanding one. 13 lung cancer be the same? 1967? 13 Q. Do you consider any of the current writers on 14 A. Lung cancer? 14 the issue of asbestos disease to be authoritative? 15 Q. Lung cancer. 15 A. I don't really see much new coming out. It's 16 A. Probably somewhere in the same order. I 16 mostly repeat, confirmation of something else. 17 would say that would be true for the users of the raw 17 I don't know of anybody that really 18 material, yeah. Any of them. 18 stands out as being an authoritative person. 19 Q. By what year should a manufacturer of 19 Q. Are you familiar with Victor Roggli? 20 asbestos-containing refractory products have known that 20 A. Yeah. 21 asbestos could cause lung cancer? 21 Q. Do you consider Victor Roggli to be an 22 A. Well, again, that might fall into the same 22 authoritative writer on the issue of asbestos disease? 23 category, depending on how much they were using. 23 A. Not necessarily. 24 Because all refractories don't have asbestos in them or 24 Q. Do you consider -- 25 did not have. 25 A. Let me back up a little bit. I think Hans RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 153 - Page 156 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 157 Page 159 1 Weill is probably the most authoritative. 1 authoritative? 2 Q. Hans Weill? 2 A. Of course, Meriwether goes back to the very 3 A. Yeah. 3 early days of this. And he was reporting really at the 4 Q, You have Hans Weill to be the most 4 cusp of all of this. I found that his papers were very 5 authoritative current writer on the issue of asbestos 5 interesting. 6 disease? 6 Certainly they lacked something in that 7 A. Well, you can't even say he's current, 7 he really did not know what the exposure levels were. 8 because he's retired. 8 He didn't try to find out. He made a judgment after 9 Q. What are your criticisms of Dr. Roggli's 9 three years that the problem had been solved, which, of 10 writings? 10 course, it hadn't been. 11 A. I just don't think that he's necessarily 11 But he was certainly breaking new 12 basing what he says on very sound data. He has a lot of 12 ground all along. 13 opinions. 13 Q. He would have been authoritative for his time 14 And most of his is on the medical side, 14 period? 15 which I'm not a physician, so I can't really comment on 15 A. When you can't judge it by anything else, 16 it. 16 yes. By hindsight, yes, you can say, "Here are a lot of 17 But I think some of his comments, 17 problems that he didn't address." 18 decisions, as far as I'm concerned, are questionable. 18 Q. But you wouldn't hold his work today to be 19 Q. Can you give me any specific examples of Dr. 19 authoritative, based on what we know today? 20 Roggli's opinions which you find questionable? 20 A. No. Because -- not that he was wrong. It 21 A. I can't give you any particular papers. Just 21 was just that at his time, that's what he was able to 22 the impression is, as I've read them, or that he 22 come up with. And it was quite valuable. 23 provides his opinions on cases, that it's pretty shaky. 23 Q. Do you consider Dr. Fleischer's work to be 24 Whether he says so or not, I get the 24 authoritative? 25 impression he tends toward the one-fiber theory, which I 25 A, Well, Fleischer's study, of course, was 1946. Page 158 Page 160 1 cannot accept at all. 2 Q. Are there any writers on the subject of 1 And this was one of the first -- I guess really the 2 second study in which concentration -- the exposure 3 asbestos-related disease other than Hans Weill that are 3 concentrations were really looked at. 4 currently alive that you consider authoritative? 4 It was under very limited 5 A. Well, you know, when you asked that before, 5 circumstances. He was in the shipyards in New York 6 it took a while before 1 could come up with Hans. About 6 metropolitan area. I guess they also did some shipyards 7 midnight tonight, 1 might think of somebody else. 7 out on the west coast. S Q. None that you can think of offhand? 9 A. Notrightnow.no. 8 So yes, this was valuable information 9 for this type of exposure. And he was also looking at 10 Q. Well, just tell me who do you find to be 10 this and getting exposure levels and drawing a 11 authoritative on the subject of asbestos-related 11 conclusion. 12 disease? 12 In fact, he agreed with Dreessen as far 13 MR. WOLCOTT: Objection. 13 as the permissible exposure limits. Or he did not 14 Q. (BY MR. BARLOW) You told me Selikoff and 14 disagree with it. [ think is more correct. 15 Weill. 15 Q. Based on what we know today, do you believe 16 A. I thought that's what we've been talking 16 that Dr. Fleischer and Dr. Drinker's work was 17 about. 17 authoritative? 18 Q. Well, you told me two, Selikoff and Weill. 18 A. Again, we have to look at when it was being 19 A. That's the only two that I've been able to 19 done and what tools did they have to work with. 20 come up with at this point. 20 They were doing things that had not 21 Q. You can't name me any others that you find 21 been done before, and, again, quite valuable in building 22 authoritative right now? It's okay. 22 up the body of knowledge that eventually leads to where 23 A. No. Do you want me to call you tonight? 23 we are today. But many, many people contributed to it. 24 MR. WOLCOTT: No. 24 Q. You think they were good scientists, 25 Q. (BY MR. BARLOW) Do you find Meriwether to be 25 obviously? RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 157 - Page 160 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, Cffl, CSP, PECAUSE NO. 98-317-G Page 161 Page 163 1 A. I think they were both -- yes, I think they 1 A. I think all these people were working in the 2 were good scientists. I have no reason to think they 2 '80s. I don't think you can mark it off in nice, clean 3 weren't. 3 decades at all. 4 Q. But we've learned a lot since then? 4 Q. Anyone other than Weill and this other 5 A. Oh, hopefully. 5 individual whose name you can't recall right now on the 6 Q. So obviously, I know you don't mean this as a 6 West Coast in the 1980s? 7 criticism of Dr. Fleischer and Dr. Drinker, but based on 7 A. Well, again, this is not something that I've 8 what we know today, - let me start that question again. 8 really given much thought to, trying to pull it out. 9 I understand that you're not critical 9 1 can't think of anybody else right 10 of Dr. Fleischer and Dr. Drinker. But based on what we 10 now, but that doesn't mean that there hasn't been good 11 know today, do you still consider their work to be 11 work done. 12 authoritative? 12 Q. As we sit here today, the only authoritative 13 A. Well, you cannot apply today's knowledge to 13 writer you can name that was published in the 1980s is 14 1946. If it were not for that type of work that they 14 Dr. Weill? 15 did, we would probably not be quite as far as we are 15 A. 1 think Roggli was publishing in those years. 16 today. 16 Selikoff was publishing, still publishing in the '80s. 17 Would the study be done the same way 17 Q. Selikoff, Weill and some of Roggli's work? 18 today? No. Because we have different techniques. 18 A. Some of his work and this other -- I'm sorry, 19 Q. In your opinion, has there been any 19 I just can't come up with it. 20 authoritative medical literature published on the issue 20 Q. Anyone else that you can think of as we sit 21 of asbestos-related disease in the last ten years? 21 here today? 22 A. Last ten years? I can't think of any real 22 A. No. 23 break-through information, no. 23 Q. Do you believe in the 1960s, that refineries 24 Q. By "authoritative," I don't mean 24 should have been monitoring the medical literature with 25 break-through. I'm just saying scientifically valid. 25 regard to asbestos disease? Page 162 Page 164 1 So let me ask it with that 1 A. Not really. Well, you'd have to say who in 2 understanding. In the last ten years, has there been ~ 2 the refineries? What refinery? 3 A. Well, I think some of Hans Weill's work was 3 Q. Safety personnel in the refineries. 4 within the last ten years. 4 A. No. Certainly there were organizations such 5 Q. So the record will be clean, let me ask a 5 as Exxon that had medical research teams. But a 6 question, and then you can answer it. 6 refinery like Pontiac, they didn't have that sort of 7 Within the last ten years, has there 7 capability. 8 been any scientifically valid authoritative literature 8 They didn't make enough money to pay 9 published on the issue of asbestos-related disease? 9 for it. 10 A. I think some of Dr. Weill's work has been 10 Q. Let me ask you this: Are you familiar with 11 published in the last ten years. There have probably 11 the API? 12 been -- Roggli has come out with things in the last ten 12 A. In a general way. 13 years that are valid. 13 Q. Have you reviewed any of the documents and 14 I wasn't totally criticizing him. And 14 publications of the API? 15 I think that -- what's his name? He's out on the west 15 A. A few of them. But I can't name them right 16 coast. Sandler? He's an epidemiologist physician that 16 now. 17 has done some good work. 17 Q. Do you know when it was knowable through the 18 This is embarrassing, because I worked 18 API that asbestos could cause asbestosis? 19 with him on a project once. I'm sorry. I can't come up 19 A. Oh, Lord, no. That would go back probably 20 with it right now. 20 into the '30s somewhere. 21 Q. If you think of it -- 21 Q. Do you know when it was knowable through the 22 A. Call you tonight? 22 API that asbestos could cause lung cancer? 23 Q. Well, before we finish the deposition. 23 A. Well, you'd have to say -- when was the first 24 Who was doing authoritative work in the 24 case report that they may have come across? I don't 25 1980s, on the issue of asbestos-related disease? 25 know. That could have been some of the German work. RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 161 - Page 164 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G Page 165 Page 167 1 It might not have. I suspect that 1 A. Now are you talking about API, or are you 2 Doll's work was known to people in the API, which would 2 talking about health and safety? I don't understand 3 be in the mid-'50s. 3 what you're talking about. 4 Q. Do you believe that a member of the API 4 Q. (BY MR. BARLOW) Yeah. With regard to 5 should have monitored the publications of the API to 5 safety. 6 determine potential hazards to its employees? 6 A. What a refinery should have done? 7 MR. WOLCOTT: Objection to form. 7 Q. Yes. 8 A. I don't think I could even answer that. I 8 A. They should have taken whatever action was 9 don't know. API, of course, published on a lot of 9 necessary to protect the health and safety of their 10 different subjects. 10 workers. 11 But if a refinery for whatever reason 11 MR. BARLOW: I need to take a break. 12 or a company that had a refinery for whatever reason had 12 (RECESS HELD FROM 3:06 P.M. TO 3:15 P.M.) 13 no more than what Pontiac had, the number of employees 13 MR. WOLCOTT: Could you make a note 14 and the care that they were taking, apparently there 14 that Mr. Pendergrass has tendered the documents he 15 wasn't anyone there that felt there was any need to do 15 brought to Plaintiffs' counsel. 16 anything else. 16 I just want there to be a record that 17 MR. BARLOW: Object to the 17 he brought the documents, and you now have had a chance 18 responsiveness of the answer. 18 to look at them. 19 Q. (BY MR. BARLOW) My question is: Should a 19 MR. BARLOW: Do you want me to identify 20 member of the API have monitored API publications to 20 what they are? 21 discover potential hazards to their employees? 21 MR. WOLCOTT: Not necessarily. I think 22 MR. WOLCOTT: Objection to form. 22 it's all stuff you've seen before. 23 A. Well, that's a different question. I don't 23 MR. BARLOW: This is all deposition 24 think I'm in a position to say what some member of API 24 testimony? 25 should have done 30 or 40 years ago. They belonged to 25 THE WITNESS: (Nodding head Page 166 Page 168 1 it. 2 They probably had some particular 3 interest that they would have monitored that. But they 1 affirmatively.) 2 MR. BARLOW: I'm not going to actually 3 mark this -- I'm going to mark it on the record as 4 may have been a member of API without having any of 4 Exhibit 2, if that's all right with you. 5 their own people as active participants. 5 And we'll make a copy and attach that 6 So it's very difficult to say who 6 to the record, the "Chronology of Asbestos Regulations 7 should have done what, when. I don't know how to answer 7 in the United States Workplace." 8 your question. 9 Q. (BY MR. BARLOW) You don't believe that 8 MR. WOLCOTT: Are you asking Debra to 9 make -- the court reporter to make a copy of it? 10 you're in a position to tell us what a refinery should 11 or should not have done 30 or 40 years ago? 10 MR. BARLOW: We'll make a copy after 11 we're through here, and then attach it. Will that be 12 A. I didn't say that. We were talking about 12 fine? 13 API. 13 MR. WOLCOTT: Can the hotel do it? 14 Q. I said, a member of the API. 14 MR. BARLOW: I'm sure they can. 15 A. Yeah. That was your question. 15 MR. WOLCOTT: I just know, that's his 16 Q. It's my understanding that members of the 17 API, were refinery companies. Is that not correct? 16 original. 17 MR. BARLOW: Right. I don't want you 18 A. I don't know who all was eligible to be 19 members of API. 18 to lose this. 19 THE WITNESS: And they do get lost 20 Q. Well, do you feel that you're in a 21 position -- let me just ask you: Do you feel that 20 sometimes. 21 MR. BARLOW: Yes, I understand. 22 you're in a position to be able to tell us what a 22 MR. WOLCOTT: Yeah. I have no problem 23 refinery should or should not have done 30 or 40 years 23 with marking the copy as Exhibit 2. 24 ago? 24 MR. BARLOW: We'll work out how to get 25 MR. WOLCOTT: Objection to form. 25 it actually attached. If they can't make a copy here, I RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 165 - Page 168 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G Page 169 Page 171 1 can send it home with you. 1 don't recall there was any specific requirements other 2 And if you'll send Mr. Wolcott a copy, , 2 than that these were the acceptable levels for however 3 then we can do it that way, and just attach it. Is that 3 many materials were on that list at that time. 4 all right? 4 Q. (BY MR. BARLOW) And an employer in Texas in 5 MR. WOLCOTT: All right. Sure. 5 1958 who was not keeping asbestos levels at their 6 (DEPOSITION EXHIBIT NO. 2 MARKED) 6 workplace below 5 million particles per cubic foot based 7 Q. (BY MR. BARLOW) Let me ask you, why is it 7 on time-weighted average, would they have been violating 8 that you produced this chapter by Peter A. Nowinski 8 the standard of care? 9 today? 10 A. It's just one of the things that I looked 11 through. It happened to be in a folder, and I just read 9 MR. WOLCOTT: Objection to form. 10 A. Well, I think -- you're saying that they were 11 definitely in excess of whatever they called them in 12 through it. 12 Texas. TLVs? 13 Q. This is one of the things that you rely on 13 If that were over the time-weighted 14 for your opinion? 14 average that we're talking about, hours per day, then 15 A. One of the things that I reviewed prior to 15 they obviously would have been in excess of the 16 today for this. 17 Q. Do you find this chapter entitled "Chronology 16 acceptable level for Texas. 17 Q. (BY MR. BARLOW) Would you expect a Texas 18 of Asbestos Regulations in the United States Workplace" 18 employer who utilized asbestos in their business or in 19 to be authoritative? 19 their work, to have kept its levels of asbestos exposure 20 A. It's pretty good. There are a few minor 20 below the threshold limit value as it was set in Texas 21 things in it that are errors. But I think for a 21 in 1958? 22 publication, and for what it is, it's very good, yes. 22 MR. WOLCOTT: Objection to form. 23 Q. Can you point out to me what in there you 23 A. 1 think you would expect them to. How many 24 find to be an error? 24 did. or how many knew what they were, I don't know. 25 A. I think there's a date that was wrong. It 25 I have no idea what the actual practice Page 170 Page 172 1 isn't that important. 1 was in Texas. Probably very few in the mid-'50s were 2 I'm not finding it right now. 2 even aware that that existed. 3 Q. You think there's one date in there? 3 Q. (BY MR. BARLOW) Do you think an employer in 4 A. I think it's just a date. There was nothing 4 the state of Texas in 1958 would have been under a duty 5 of any great significance. 5 to know what the acceptable levels of asbestos exposure 6 Q. Well, we can move on. If you think of it, 6 were in its workplace as stated by state law? 7 let me know. Okay? 7 A. I don't know the details of the state law. 8 A. Okay. Do you want to look at it again? 8 So I think their duly would have been to protect their 9 Q. Yeah, please. Do you know when Texas enacted 9 workers. And whatever the state law called for, that 10 laws governing permissible asbestos exposures in the 10 would have been what they should have been doing. 11 workplace? 11 Q. If a company was not in compliance with the 12 A. I think that it was probably 1956 or '55. 12 state law in 1958, they weren't doing what they should 13 And this is the date that sticks in mind with regard to 13 have been doing, in your opinion? 14 asbestos. 14 MR. WOLCOTT: Objection to form. 15 So they may have had some earlier than 15 A, If their employees were not being 16 that. But I think the mid-'50s, as I recall. 16 overexposed, then they were. If they were being 17 Q. Would any employer following the passage of 17 overexposed, then obviously that would not be good 18 that law have been in violation of the standard of care 18 practice. 19 for the industry if they were not in compliance after 19 MR. BARLOW: Objection as 20 1958? 20 ronresponsive. 21 MR. WOLCOTT: Objection to form. 21 Q. (BY MR. BARLOW) That wasn't exactly my 22 A. As I recall, the only thing that they had was 22 question. My question is, if an employer in the state 23 that they actually adopted the ACGIH TLVs. And that was 23 of Texas in 1958 was not keeping its asbestos levels 24 just a number. 24 within what was laid out by state law, then in your 25 So I don't know that there was any --1 25 opinion, they weren't doing what they were supposed to RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 169 - Page 172 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 173 Page 175 1 be doing, correct? 2 MR. WOLCOTT: Objection to form. 3 A. And we're talking about eight-hour repealed 4 exposures? Then they were in violation of the stated 5 guideline for Texas. I don't know what the consequences 1 what they did. 2 In fact, it was what they probably did 3 before that. They certainly were taking, it seems to 4 me, the precautions necessary to protect the worker from 5 excessive exposures. 6 of that is. 6 First of all, under normal 7 Q. (BY MR. BARLOW) WeU, if you were an 8 executive in 1958 and in charge of a refinery, would you 9 have allowed your workers to be in violation of Texas 10 state law with regard to asbestos exposures? 7 conditions -- or routine conditions, they didn't have 8 conditions that were in excess. i 9 When they were likely to occur they 10 used - their practice was to use outside contractors 11 MR. WOLCOTT: Objection to form. 12 A. I don't see how that's -- I certainly have 13 never been in that position. My profession was to and 14 has always been to evaluate areas, conditions, to 15 protect the health of workers. 16 If that had been the case, and I had 17 been the evaluator, then yes, I would have been 18 responsible to advise the manufacturer or the executive. 11 and enclosures. 12 Q. (BY MR. BARLOW) I want you to assume for me 13 that as of 1964 there were caution labels on some of the 14 asbestos-containing products which were utilized at the 15 Pontiac facility and that the caution labels said: 16 Caution, contains asbestos, avoid breathing dust. 17 Do you believe at that point, that 18 Pontiac should have utilized a respirator program when 19 But 1 can't sit here and say, this is 20 what the executive should have done without knowing any 19 those products were being used? 20 A. Not necessarily. 21 other circumstances. 22 Q. (BY MR. BARLOW) So you can imagine a set of 21 Q. Do you believe that Pontiac should have 22 utilized engineering controls when those products were 23 circumstances in which an employer in the state of Texas 24 in 1958 could be in violation of state law, but would be 25 exercising reasonable care with regard to asbestos 23 being used? 24 A. Not necessarily. 25 Q. Why do you say "not necessarily"? Page 174 1 exposures in its workplace? 2 MR. WOLCOTT: Objection to form. 3 Q. (BY MR. BARLOW) Is that right? 4 A. No. I think what you have there is probably 5 his actions would have been similar to the vast majority Page 176 1 A. Because they might have been being used, 2 where there was no reason to think that there was an 3 excessive concentration. 4 Q. Do you believe that it's possible to avoid 5 breathing the dust from asbestos-containing pipe 6 of other employers in the same circumstance. 6 covering when it's cut, unless you're using a respirator 7 Whether it would have been good 7 or engineering controls? 8 practice or not from the industrial hygienist's 8 A. No. You're going to breathe some. 9 standpoint, the answer would be no. 9 Q. Do you believe that when caution labels began 10 Q. It's never good practice from an industrial 10 appearing saying to avoid breathing the asbestos dust, 11 hygienist's standpoint to be in violation of state law? 11 that Pontiac should have been testing to find out if 12 A. No. It is not good practice for the 12 they were exceeding safe levels of asbestos exposure? 13 industrial hygienist to have conditions exist which 13 MR. WOLCOTT: Objection to form. 14 would be harmful to the health of the workers. 14 A. 1 think that it's essentially the same 15 Q. Do you know when caution labels began 15 question as before. No. It depends on what they were 16 appearing on asbestos-containing products which were 16 doing. Probably not. But it would depend on what was 17 sold to or used within the Pontiac facility? 17 being done. 18 A. No, I don't. 18 Q. (BY MR. BARLOW) When Pontiac got the pipe 19 Q. Once caution labels began appearing on 19 covering, let's say hypothetically, that had the warning 20 products that were used within the Pontiac facility, was 20 on it which said "Avoid Breathing the Dust," assuming 21 Pontiac under any duty to investigate how to use those 21 they didn't know one way or another what the safe levels 22 products safely around their employees? 22 of asbestos exposure were, what should they have done? 23 MR. WOLCOTT: Objection to form. 23 A. Well. I think they would have done exactly 24 A. Once it was there, yes. And I think that the 24 what their Safety Manager did, was try to get as much 25 indications are that this was the practice. This is 25 information as he could. But-- RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 173 - Paoe, 176 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 177 Page 179 1 Q. When did their Safety Manager begin -- 1 MR. BARLOW: Object as nonresponsivc. 2 MR. WOLCOTT: Objection. 2 Q. (BY MR. BARLOW) Is it good work practices to 3 Q. (BY MR. BARLOW)Are you through? 3 wait five years from the time you first have notice of a 4 A. Yeah. 4 potential problem until you do further investigation 5 Q. I didn't mean to cut you off. 5 into that problem? 6 A. Okay. Go ahead. 6 MR. WOLCOTT: Objection to form. 7 Q. When did the Safety Manager, based on what 7 A. I don't know that that was a fact there. And 8 you've reviewed from Pontiac, begin doing research into 8 depending on what information they received, they may or 9 asbestos hazards? 9 may not have done anything further. 10 A. I don't think you could say that he did 10 Again, we have to say, well, was there 11 research into anything. I don't think that was his 11 or is there any indication that a problem existed? 12 capability or anything else. 12 There is not. So there was nothing to do. 13 He was trying to educate himself as 13 Q. (BY MR. BARLOW) Is it your opinion that even 14 much as possible, again based on what I have read from 14 if Pontiac waited five years before doing any further 15 his deposition. 15 investigation into the asbestos problem, they weren't 16 But I also think that from that he was 16 negligent, because there simply wasn't a problem to 17 a very conscientious individual, and was seeking 17 begin with? 18 information where he could get it. 18 A. That's correct. 19 Q. Are you referring to Mr. Kucera? 19 Q. Is it your opinion, that no matter how long 20 A. Yes. 20 Pontiac waited to address the asbestos issue, they're 21 Q. Do you know when Mr. Kucera stated that he 21 not negligent, because they never had a problem to begin 22 was first aware that asbestos was a potential hazard? 22 with? 23 A. It was right about the time that he took the 23 A. Well, the fact is, that when they began 24 job as the safety engineer, I believe is what he said. 24 removing large amounts of asbestos, they brought 25 Q. I believe from some notes I read, that Mr. 25 somebody else in to do it. Page 178 Page 180 1 Kucera stated that he first became aware that asbestos 1 They brought somebody else in to do 2 was a potential hazard in 1969. 2 their insulation work. So that is not a fact of what 3 Does that sound right to you? 3 happened. I don't see any indication where Pontiac was 4 A. Yeah. Didn't he take that job in'68? 4 negligent in protecting their workers. Their workers 5 Q. Does that sound right? 5 were protected. 6 A. Yeah. 6 Q. It's your opinion, that at all times, 7 Q. Do you know of any efforts made by Pontiac 7 Pontiac's employees were protected from the asbestos 8 prior to 1969, to determine whether or not asbestos was 8 hazard? 9 a potential hazard to its employees? 9 A. From what I have read, I have no indication 10 A. No, I don't. We know now that it wasn't or 10 that conditions existed otherwise. 11 probably wasn't. We don't know possibly because they 11 Q. When was it knowable by a refinery that 12 didn't do anything. 12 asbestos could cause asbestosis? 13 But I don't think anyone, certainly in 13 MR. WOLCOTT: Objection to form. 14 the industrial hygiene profession, would have suggested 14 A. By any refinery, or a refinery, or the 15 doing anything at all there with regard to asbestos. 15 refinery industry? 16 Q. Assume for me that in 1964 asbestos- 16 Q. (BY MR. BARLOW) By any refinery. 17 containing products were delivered to Pontiac which said 17 A. I have no idea. 18 "Caution. Asbestos. Avoid Breathing the Dust." 18 Q. When was it knowable by the refining 19 Would it have been good practices to 19 industry, that asbestos could cause asbestosis? 20 wait five years before doing any investigation into 20 A. Again, probably in the mid-'30s, depending on 21 whether or not there was a potential hazard for their 21 the company. Those companies that had occupational 22 employees? 22 health programs at that time -- there wouldn't be many 23 A. We don't know that there was a wait of five 23 in the mid-'30s, but certainly after World War II there 24 years. And there's no indication that there was a 24 would have. 25 problem. 25 But there were not many companies that RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 177 - Paee 180 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, Clii, CSP, PECAUSE NO. 98-317-G Page 181 Page 183 1 had occupational health programs prior to World War 11. 1 Now I cannot believe that the 2 Q. In your opinion, should sister companies 2 information wouldn't flow anyway up through the chain 3 within the same corporate structure share industrial 3 and back down. 4 hygiene information? 4 Q. (BY MR. BARLOW) But from a public health 5 MR. WOLCOTT: Objection to form. ! 5 standpoint, would it ever be responsible to not share 6 A. There was certainly an open sharing of 6 health information between subsidiaries? 7 information among industrial hygienists, yes. 7 MR. WOLCOTT: Objection to the form. 8 Q. (BY MR. BARLOW) If a company's sister 8 A. Well, this isn't a matter of public health. 9 company has information concerning the hazards of 9 This is a matter of employee health. And there's a 10 asbestos, should that company seek to have that 10 difference. 11 information so it can use it to protect its own 11 Q. (BY MR. BARLOW) From an employee health 12 employees? 12 standpoint, would it ever be responsible for companies 13 MR. WOLCOTT: Objection to form. 13 to not share health information among subsidiaries? 14 A. Go about that one again. 14 MR. WOLCOTT: Objection to form. 15 MR. BARLOW: Can you read it back to 15 A. Again, this is so foreign to my own 16 him or do you need me to rephrase it? 16 experience and practice, that I can't even conceive of 17 (PREVIOUS QUESTION READ) 17 this, that they wouldn't. 18 MR. WOLCOTT: Objection to form. 18 But it's certainly possible that that 19 A. Can you rephrase that? Because I'm really 19 information would not be shared. 20 not sure what you're asking, 20 Q. (BY MR. BARLOW) Would it be responsible? 21 Q. (BY MR. BARLOW) Sure. If there's several 21 MR. WOLCOTT: Objection to form. 22 subsidiaries of the same parent company, and one of the 22 A. I tried to answer that. I can't go any 23 sister companies, one of the subsidiaries, has access to 23 further. 24 information about asbestos hazards, and another one of 24 Q. (BY MR. BARLOW) When was it knowable to 25 the subsidiaries is utilizing asbestos in their field. 25 members of the National Safety Council that asbestos Page 182 Page 184 1 should the subsidiaries share that information among 1 could cause asbestosis? 2 each other? 2 MR. WOLCOTT: Objection to form. 3 MR. WOLCOTT: Objection to form. 3 A. 1 don't have any idea. 4 A. There's an answer to that if you disregard 4 Q. (BY MR. BARLOW) Have you reviewed any 5 company culture. Yes, and you would expect it, and it 6 probably would happen. 5 documents from the National Safety Council? 6 A. Regarding this? 7 However, there are organizations which 8 discourage any exchange of information between different 7 Q. Regarding asbestos hazards. 8 A. No, I don't think so. Because that's not 9 subsidiaries or even different divisions of a company. 10 So in some situations, there is 11 absolutely no sharing of information, regardless of what 12 it is. 9 where I would go for information on asbestos. 10 Q. Do you know when the National Safety Council 11 began publishing papers discussing asbestos as the cause 12 of asbestosis? 13 Q. (BY MR. BARLOW) Would it ever be responsible 13 A. No, I don't. 14 to not share information about health hazards between 14 Q. Do you know whether or not Pontiac was a 15 subsidiaries? 15 member of the National Safety Council? 16 MR. WOLCOTT: Objection to the form. 16 A. I don't know. 17 A. I think from my standpoint, health is all 17 Q. Can you name all of the articles published in 18 important. And I think that is generally true with 18 the 1940s, which discuss asbestos hazards as it relates 19 employers. 20 However, where there is this culture 21 that says you do not exchange information, it probably 19 to petro chemical workers? 20 A. No, I couldn't. 21 Q. Can you tell me which articles in the 1950s 22 wouldn't be. I mean, this manager is not going to 22 were published, which discussed asbestos hazards to 23 whisper to this one over here, "You know, I'm not 23 petro chemical workers? 24 supposed to talk to you, but this is what's happening." 24 A. No. Nor 1960s, nor 1970s, nor 1980s, nor 25 That isn't going to occur. 25 1990s, nor now. RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 181 - Paee 184 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CHI, CSP, PECAUSE NO. 98-317-G Page 185 Page 187 1 Q. Are you aware of any articles which discuss 1 with regard to asbestos. 2 asbestos hazards to petro chemical workers? 2 Q. Do you find OSHA's positions on asbestos to 3 A. I'm trying to think. I know there are papers 3 be authoritative? 4 from refineries, but one would say specifically for 5 asbestos -- well, we mentioned one earlier. 4 A. OSHA's position, I think, has been to be 5 highly protective. In other words, to take lower and 6 Dr. Wright's paper, I think, was a 6 lower concentrations simply because it's technically 7 Texaco refinery in which they said that there was a 8 cancer case that they attributed to exposure to 7 able to do it. 8 1 mean, the technology exists that 9 asbestos. 10 And I'm sure there were others, but I 9 allows people to do it, not that OSHA does. 10 Q. Do you find OSHA's positions on asbestos 11 can't name them all for you. 12 Q. Would a reasonable refining company in the 11 health issues to be authoritative? 12 A. Well, obviously, they're authoritative, 13 1950s have required that asbestos be wetted before it 14 was torn out? 15 A. Probably not. 16 Q. What about for the 1960s? 13 because they are the rule. 14 But as I said, I think that they have 15 taken a very highly restrictive position that probably 16 isn't necessary. 17 A. Depending on how much material, it might have 17 Q. Maybe this will make it easier. Obviously I 18 been. And it would go up the calendar. 18 understand OSHA is the authority, so their position is 19 It would probably be more probable as 19 authoritative from a legal standpoint. 20 we go up until certainty. 21 Q. When would it have been a certainty that a 20 From a scientific standpoint, do you 21 find OSHA's positions on asbestos health matters to be 22 reasonable refining company would have required the 23 wetting of asbestos being torn out? 24 A. Well, that would have certainly been when the 22 authoritative? 23 A. From a scientific standpoint, I think that 24 they have gone beyond what is necessary to protect the 25 use of contractors was concerned. But the refinery 25 health of workers. Page 186 Page 188 1 would not have been the one to tell them. 1 Q. Do you find NIOSH's positions with respect to 2 They would have known that themselves. 2 asbestos health matters, to be scientifically 3 I don't know. It's kind of hard to put a date oa that. 3 authoritative? 4 Q. You don't know? 4 A. I think OSHA's [sic] original statement with 5 A. I don't know what the certainty date is. But 5 regard to asbestos exposure was irresponsible. 6 if it were today, it would be done. I think, without any 6 Q. You think NIOSH was irresponsible? 7 question. 8 Q. In the 1970s, what would you have done to 7 A. Yes. Because they said zero exposure. 8 That's not possible. 9 protect workers at the Pontiac facility from asbestos 9 Q. Are you aware of any evidence that 10 hazards? 10 manufacturers of asbestos products hid information about 11 MR. WOLCOTT: Objection to form. 12 A. Probably not anything different than what 11 asbestos hazards from employers? 12 A. Hid information from them? I don't have any 13 they were doing. They very quickly in the early'70s 13 ofthatevidence.no. 14 decided to use nonasbestos-containing products. 14 Q. When should manufacturers have begun putting 15 They had contractors come in to remove 15 warnings on asbestos products? 16 asbestos. They had contractors come in to replace the 16 A. When did they have? 17 asbestos. Probably not a great deal different than what 17 Q. When should they have? 18 they were doing. 18 A. I would say probably sometime after the mid 19 Q. (BY MR. BARLOW) In the 1960s, what would you 19 '60s. 20 have done to protect employees of Pontiac from asbestos? 20 Q. Can you be any more specific? 21 MR. WOLCOTT: Objection to form. 21 A. Well, after the Selikoff publications 22 A. Probably no different than they were doing. 22 probably. 23 Q. (BY MR. BARLOW) Do you find the EPA's 24 position on the asbestos hazard authoritative? 23 Q. '64? 24 A. Actually, they weren't published until--1 25 A. I think EPA has been very prone to overreact 25 believe it was '67. And they were not -- as we talked RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 185 - Page 188 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CIH, CSP, PECAUSE NO. 98-317-G Page 189 Page 191 1 about earlier, this was not something that appeared in 2 the "Wall Street Journal" or the "New York Times." And 1 A. Well, certainly the 1972 standard had O respiratory requirements in it. I don't recall it said 3 many people probably were not reading the proceedings of 3 it had to be a written program, but it laid out what a 4 the New York National Safety -- what was it? New York 4 program was. 5 National Science Association. 5 And then, of course, the later 6 Q. You don't believe there were any references 6 standards very specifically talk about a written 7 to the asbestos hazards in the general media prior to 7 standard. 8 1967? 8 Q. (BY MR. BARLOW) Do you know when Pontiac 9 A. Not a whole lot, no. 9 implemented a respiratory program for asbestos in their 10 Q. Are you aware of any? 10 plant? 11 A. I could not tell you any, no. 11 A. I don't know. 12 Q. Is there any type of asbestos fiber which is 12 Q. You don't know? Should the Safety Manager at 13 safe? 13 Pontiac in 1972 have known that the OSHA standards 14 A. Any type? 14 applied to refineries? 15 Q. Uh-huh. 15 MR. WOLCOTT: Objection to form. 16 A. I think the toxicity varies from chrysotile 16 A. I don't know why not. 17 to crocidolite. Of course, safe and unsafe depends on 17 MR. BARLOW: I think that's as far as I 18 concentration and the dose that a person receives. 18 can go now. 19 This is the concentration times the 19 (DEPOSITION CONCLUDED AT 3:56 P.M.) 20 length of time that the exposure occurs. 20 21 Q. So is the answer no, there is no safe type of 21 22 asbestos fiber? On 23 A. Well, of the ones that are commonly used. 23 24 There's some rather strange asbestos formulations that 1 24 25 don't know a whole lot about. 25 Page 190 Paqe 192 But certainly of the commonly used 1 CHANCES AND SIGNATURES ones, at some level, yes, they can be harmful. At some 2 PACK I,[HE CHANGE REASON 3 dose, they can be harmful. 4 Q. What does the scientific literature say that 5 the level of asbestos exposure is when asbestos pipe 6 covering is being torn out? 7 MR. WOLCOTT: Objection to form. 8 A. Asbestos pipe covering? 9 Q. (BY MR. BARLOW) Uh-huh. 10 A. Once again, it's going to depend on where the 3 4 b 6 7 e 9 10 LI job is, how much is being tom out. 11 L2 I don't think there's any one figure 12 13 that you can come up with. The job has to be evaluated. 13 14 Q. Have you seen any literature which discusses 14 15 airborne asbestos levels of insulation tear-out in an lb 16 outdoor setting? 16 17 A. I don't recall. I know there are studies 18 that show what the levels are outside an enclosure, and 17 15 L9 they show they are background levels. But other than 19 20 that, I can't recall any other data. 20 21 Q. When would a reasonably careful refinery have 21 22 implemented a written respiratory program? 22 23 MR. WOLCOTT: Objection to form. 23 24 Q. (BY MR. BARLOW) With regard to asbestos? 24 25 MR. WOLCOTT: Object to the form. 2b RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 189 - Page 192 APRIL 20, 2001 WILMA S. CLARK VS. UNION PACIFIC, ET AL VOLUME 1, JOHN A. PENDERGRASS, CM, CSP, PECAUSE NO. 98-317-G 1 2 I, JOHH A. PBNDBRGRAS3, CIH, CSP, PE, bave read the 3 foregoing deposition and hereby affix ay signature that same is true and correct, except as noted above. 4 5 6 JOHN A. PENDERGRASS, CIH, CSp, PE 7 8 9 THE STATE OP------------------------------------- ) 10 THE COUNTY OP--------------------------------- ) 11 Before me, -----------------------------------------------------------------------, on 12 this day personally appeared JOHN A. PENDERGRASS, CIH, CSP, PE, known to me (or proved to ac under oath or 13 through --------------------------------------------------------) (description of 14 identity card or other document)) to be the person whose name is subscribed to the foregoing instrument and 15 acknowledged to oe that they executed the same for the purposes and consideration therein expressed. 16 17 Given under ay band and seal of office, thi3 day of 2001. n NOTARY PUBLIC IN AND FOR 12 THE STATE OF ------------------------- 23 24 >5 Page 193 record: 2 TOR THE PLAINTIFF, WILMA S. CLARK, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OP THE HEIRS AND ESTATE OP 3 HOWARD HAROLD CLARK, DECEASED: Alex Barlow, Esq;. 4 BARON t BUDD, P.C. 3102 Oak Lawn Avenue 5 The Centrum Building, Suite 1100 Dallas, Texas 75219-4281 6 TOR THE DEFENDANTS, UNION PACIFIC RESOURCES COMPANY, BT 7 AI.: Craig S. Wolcott, Esq. 8 HAYS, KcCOHN, RICE C PICKERING 1200 Smith Street 9 Suite 400, Two Allen Center Houston, Texas 77002 10 11 [ further certify that I am neither counsel for, 12 related to, nor employed by any of the parties or 13 attorneys in which this proceeding was taken, and 14 further, that I am not financially or otherwise 15 interested in the outcome of the action. 16 Further certification requirements pursuant to Rule 17 203 of TRCP wLLl be certified to after they have 18 occurred. 19 Certified to by me this 4th day of May, 2001. 20 21 DEBRA AMOS ISBELL, CSR, RDR, CRR Expiration Date: 06/23/04 22 RUTLEDGE GRAY REPORTING SERVICES 1021 Schrade Trail 23 Mesquite, Texas 75181-1281 Telephone - 972.222.4003 / 800.076.3370 24 Facsimile - 972.222.6229 Website - www.texasreporters.coa 25 Email - cutledge6ainBali.net Page 1 CAUSE HO. 98-317-G 2 WILMA S. CLARK, Individually ) IN THE DISTRICT COURT and as Personal Representative ) 3 of the Heirs and Estate of ) HOWARD HAROLD CLARK, Deceased ) 4 ) OF NUECES COUNTY, TEXAS VS. 5 ) ) UNION PACIFIC RESOURCES 6 COMPANY, et ai ) ) 319TH JUDICIAL DISTRICT 7 REPORTER'S CERTIFICATION DEPOSITION OF JOHH A. PENDERGRASS, CIH, CSP, PE April 20, 2001 I, Debra Amos Isbell, CSR, RDR, CRR, in and for the State of Alabama, hereby certify to the following: That the witness, JOHN A. PENDERGRASS, CIH, CSP, PE, was duly sworn by the officer and that the transcript of the oral deposition is a true record of the testimony given by the witness; That the deposition transcript was submitted on the 4th day of May, 2001 to the witness or to the attorney for the witness for exaoination, signature and return to me by the 24th day of May, 2001 (20 days); That the amount of time used by each party at the deposition is as follows: Alex Barlow, Esq. - 05:08 Craig 5. Wolcott, Esq. - 00:00 That pursuant to information given to the deposition officer at the time said testimony was taken, the following includes counsel for all parties of Page 194 1 2 FURTHER CERTIFICATION UNDER RULE 203 TRCP The ori.qt.nal deposition was/was not returned to the 3 deposition officer on --------------------------------, 2001; 4 It returned, the attached Changes and Signature 5 page contains any changes and the reasons therefor; 6 If returned, the original deposition was delivered / t.o AI.RX BARLOW, ESQ., Attorney for the PLAIHTIFFS, Custodial Attorney; 9 That $906.80 is the deposition officer's charges to 10 the PLAINTIFFS, for preparing the original deposition 11 tr.inscript and any copies of exhibits; 12 That the deposition was delivered in accordance 13 with Rule 203.3, and that a copy of this certificate was 14 served on ail parties shown herein and filed with the 15 Clerk. 16 Certified to by me this----------------------------day of 17 ...... ----------------- , .2001 18 19 20 21 22 ` 23 24 25 DEBRA AMOS ISBELL, CSR, RDR, CRR Expiration Date: 06/23/04 RUTLEDGE GRAY REPORTING SERVICES 1021 Schrade Trail Mesquite, Texas 75181-1281 Telephone - 972.222.4003 / 800.876.3370 Facsimile - 972.222.6229 Website - www.texasreporters.coa Email - rutlcdge6ainxail.net Page 196 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Page 193 - Page 196 APRIL 20, 2001 VOLUME 1, JOHN A. PENDERGRASS, CIH, $906.80 - addition S. CLARK VS. UNION PACIFIC, ET AL $906.80 [i] 196:9 '20s m 110:16 '30s [11] 97:2 98:21 107:19 109:4 110:17 145:13 151:15 153:10 164:20 180:20 180:23 '31m 144:18 '35 [i] 151:15 '36 m 151:16 '40s m 109:24 '50s pj 37:22 37:24 38:8 54:5 138:1 142:13 165:3 170:16 172:1 '52 m 72:11 '55 m 170:12 '60s m 43:22 70:24 71:7 71:15 72:17 142:13 155:3 155:5 188:19 '64 m 188:23 '65 m 153:22 '67 pj 153:24 188:25 '68pj 70:22 178:4 '70s m 81:8 114:6 129:14 129:15 140:5 142:13 186:13 '72pj 40:16 70:21 '76 m 40:16 '78 m 69:8 '80s p] 163:2 163:16 '89 [4] 23:13 23:15 35:14 132:9 '90 p] 10:10 11:3 11:6 '91 [4] 10:10 11:3 11:6 24:25 '96 m 35:15 '98 m 35:14 lp] 114:16 118:9 119:13 -// PI 195:23 196:23 -0- 00:00 m 5:08 [i] 06/23/04 pj 196:21 194:21 194:21 195:21 -1lp] 25:19 25:20 25:22 10 m 10:1 100 pi 20:21 20:24 149:19 1021 [2] 195:22 196:22 10:46 [i] 56:20 10:52 m 56:20 1100 m 195:5 11:52 [i] 92:1 12 [6] 7:12 7:13 7:13 8:11 23:14 39:19 1200 [l] 195:8 15 m 130:12 132:22 149:25 39:15 50:13 152:8 151:2 150:10 153:15 109:8 38:3 40:19 40:22 53:25 108:21 109:12 153:11 .940 p] 110:7 110:22 184:18 39:7 39:9 40:25 41:5 50:20 50:21 161:14 39:3 40:16 48:14 159:25 } 56:4 112:2 101:9 55:10 100:21 111:13 143:22 145:14 ]L950s [:15] 41:20 41:25 43:1 44:14 51:14 51:21 52:2 52:15 52:19 52:25 53:13 53:22 54:20 79:23 99:14 99:19 137:19 142:23 144:2 144:5 144:11 145:10 145:15 184:21 185:13 137:12 .958 [9] 136:23 170:20 171:5 171:21 172:4 172:12 172:23 173:8 173:24 113:2 112:12 960s [i 43:17 43:22 81:8 107:22 107:25 108:1 136:13 137:22 146:2 146:13 146:22 163:23 184:24 185:16 186:19 1964 [ii] 43:23 44:8 44:16 45:2 99:24 100:7 102:10 122:17 153:22 175:13 178:16 1967 pi 154:3 154:13 189:8 1969 [2] 178:2 178:8 1970 [4] 45:2 45:21 112:16 113:10 1970s [9] 129:22 130 7 131:8 139:2 139 11 142:24 143:23 184 :24 186:8 1971 [4] 45:22 45:23 50:13 131:11 1971/early m 46:1 1972 [i2j 39:16 46:1 128:3 128:13 131:18 132:11 136:6 139:18 140:6 155:10 191:1 191:13 1974/75 [1] 34:7 1975 m 148:1 1976 [21 39:23 40:4 1978 [4] 69:9 69:24 70:10 132:11 1980(3] 113:16 113:18 113:18 1980s [4] 162:25 163:6 163:13 184:24 1986 [7] 36:7 36:11 87:7 89:8 89:12 89:23 132:9 1989 [4] 10:10 35:10 35:19 36:7 1990 [l] 113:16 1990s m 184:25 1991 [2] 10:22 20:14 1994 PJ 34:21 35:25 48:16 1996 [3] 34:21 35:4 36:1 1997 [l] 36:11 1998 [51 34:16 35:4 35:10 35:19 35:22 1:06 [11 92:1 -2- 2 [4] 39:20 168:4 168:23 169:6 20 [9] 10:1 24:9 73:6 87:23 130:12 134:12 134:17 194:8 194:18 20-something [tj 37:19 2000[1] 113:17 2001 [81 145:7 193:18 194:8 194:16 194:18 195:19 196:3 196:17 203(2] 195:17 196:1 203.3 m 196:13 24th [l] 194:18 -3- 30(5] 73:6 134:18 165:25 166:11 166:23 30-something m 37:20 300 [1] 141:8 3102 [11 195:4 3l9TH(i] 194:6 3:06[11 167:12 3:15 [1] 167:12 3:56m i9i:i9 3M [6] 27:23 28:5 28:10 28:17 28:19 29:1 -4- 40 [10] 64:18 84:8 84:10 87:21 115:6 119:22 134:18 165:25 166:11 166:23 400 m 195:9 44/100s m 41:12 4th pi 194:16 195:19 -5- 5(13] 20:21 20:24 39:10 54:4 54:13 55:11 55:25 59:5 59:16 109:12 116:8 116:10 171:6 50/50 [1] 24:25 -7- 721 [1] 30:12 75181-1281(21 195:23 196:22 75219-4281 m 195:5 77002 m 195:9 -8- 800.876.3370 m 195:23 196:23 972.222.4003 p] 195:23 196:23 972.222.6229 m 195:24 196:23 98-317-Gm 194-.1 99 [1] 41:12 -A- A.M PI 56:20 92:1 able [12] 56:20 23:8 30:23 81:9 90:16 96:24 104:15 135:13 135:20 158:19 159:21 166:22 187:7 aboard [i] 112:20 above [5] U8:i5 132:19 132:21 138:14 193:3 abreast [5] 5i:i6 52:1 52:13 57:1 57:3 absence [i] 95:24 Absolutely p] 65:12 139:1 148:7 absolutely m 182.11 accept pi 90:10 154:10 158:1 acceptable cn U4:i6 134:20 134:22 134:23 171:2 171:16 172:5 acceptance pi 101:19 101:20 accepted p] 98:24 99:24 access m 181:23 accidents pj 8:21 9:2 9:2 accordance pj 196:12 accumulation p] 100:5 101:21 accuracy pi 13:9 23:9 accurate pi 8:18 100:9 ACGIH[22] 36:23 37:5 38:1 38:14 39:11 40:16 41:13 41:22 43:19 45:5 50:15 50:17 54:3 55:11 36:15 37:10 39:2 40:19 42:12 48:14 53:22 170:23 ACGIH'sis] 38:10 41:7 41:8 43:2 43:12 acknowledged m 193:15 Act [l] 138:24 acting p] 51:15 57:16 109:7 action [2] 195:15 167:8 actions [4] 19:9 53:11 70:7 174:5 active p] 166:5 73:5 Activities-[ii 32:10 activities pj 19:15 20:4 actual [2] 171:25 71:20 add PI 15:24 36:9 46:5 addition p] 35:10 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 1 APRIL 20, 2001 additional - asbestos VOLUME 1, JOHN A. PENDERGRASS, CIH, S. CLARK VS. UNION PACIFIC, ET AL 35:25 142:20 additional [2] 43:8 87:19 address [6] 57: li 141:15 142:4 142:7 159:17 179:20 addressing [l] 57:17 Administration p] 36:10 adopted [5] 50:14 50:15 50:17 55:10 170:23 advise [4j 51.-15 51:18 149:3 173:18 advised [l] 136:14 affiliated m 32:25 affirmatively [3] 55:16 66:24 168:1 affix [l] 193:3 Afghanistan pi 106:16 Again [33] 14:25 15:20 21:2 22:1 24:24 24:25 44:1 49:24 50:1 52:17 62:6 74:23 77:19 78:9 80:9 90:22 109:21 112:15 112:19 113:5 116:14 117:1 132:6 132:17 133:2 137:25 139:13 140:11 147:1 160:18 179:10 180:20 183:15 again [29] 21:21 23:9 53:4 64:16 72:14 78:21 79:20 79:21 89:13 91:4 100:9 100:12 115:3 117:8 130:4 130:10 130:13 131:15 131:24 138:11 153:6 154:22 160:21 161:8 163:7 170:8 177:14 181:14 190:10 against P] 54:14 147:25 149:3 agency LSI 36:18 36:20 36:24 37:1 37:6 38:5 118:3 118:7 ago [i3] 23:12 23:14 23:17 25:3 25:3 33:24 34:20 91:3 116:12 149:19 165:25 166:11 166:24 agree [9] 53:21 58:9 62:13 62:18 63:23 126:11 133:11 138:23 143:15 agreed [2] 160:12 90:2 ahead [6] 15:2 25:18 29:23 50:20 141:2 177:6 air pi] 35:2 39:10 61:12 107:2 107:13 107:17 107:20 107:25 108:3 108:11 109:3 109:8 109:15 109:19 110:2 110:8 111:1 112:6 112:13 112:17 113:3 113:11 113:23 114:25 115:11 118:12 118:25 119:3 128:4 128:13 132:18 airborne p] 127:14 190:15 Airplane pj 37:16 ALpj 195:7 alp] 77:23 194:6 Alabama p] 6:6 194:10 ALEX [11 196:7 Alex p] 194:21 195:3 alive pi 158:4 allegations pj 63:11 84:19 90:5 allege p] 62:21 alleged [5] 65:7 78:12 78:16 78:17 85:19 Allen pi 195:9 allow [s] 48:22 49:6 114:23 115:10 148:13 allowed pj 37:21 124:3 124:11 125:8 126:21 126:25 147:20 148:5 173:9 allows p] 187:9 102:8 almost [4] 50:18 104:24 135:17 145:22 alone p] 94:1 along [8] 10:11 13:3 72:20 101:25 134:9 151:16 152:9 159:12 always [5] 34:11 36:22 48:11 153:7 173:14 ambient p] 61:14 American pi] 26:12 27:1 27:24 28:5 28:10 28:16 29:24 30:2 33:16 33:21 34:13 34:23 34:25 36:1 36:5 36:12 38:22 40:11 42:13 44:10 44:18 amocite pj 40:2 40:5 among [16] 75:23 76:8 78:5 90:25 91:16 93:13 97:19 98:4 122:21 123:8 123:21 146:19 146:23 181:7 182:1 183:13 AMOS [21 196:20 195:21 Amos p] 194:9 amount [9] 59:25 84:23 115:22 131:10 134:8 145:3 145:4 155:2 194:19 amounts pj 48:8 131:3 144:9 179:24 analogy m 56:4 Analysis pi 30:11 Angelo PI 14:25 ANSWER [i] 91:8 answer [29] 5:9 6:2 22:8 42:17 44:13 51:12 52:7 55:1 59:1 71:18 89:25 91:3 91:3 91:5 91:6 119:14 124:24 125:1 142:15 152:6 154:11 162:6 165:8 165:18 166:7 174:9 182:4 183:22 189:21 answered pj 59:21 91:10 91:11 answers pi 5:16 47:12 47:13 Anthony [i j 151:8 anyway pi 5:24 102:24 121:18 183:2 apart m 94:13 API [17] 164:11 164:14 164:18 164:22 165:2 165:4 165:5 165:9 165:20 165:20 165:24 166:4 166:13 166:14 166:17 166:19 167:1 appear PI 115:21 appeared pj 44:5 189:1 193:12 appearing pi 174:16 174:19 176:10 applied PI 191:14 apply [i] 161:13 appropriate pi 19:10 70:7 April [i] 194:8 area ps] 9:1 51:9 82:10 106:17 111:15 112:2 113:4 116:9 116:24 139:21 140:7 140:17 143:21 153:10 160:6 areas pj 129:4 129:9 129:20 149:9 173:14 arguing p| 18:13 arithmetic m 24:17 aroused pi 43:24 arranged p) 17:16 arrogant pi 73:25 art pi 68:24 69:3 69:4 article 8] 33:10 62:15 66:7 101:4 31:13 66:3 135:2 135:23 articles ps] 26:25 61:2 63:21 64:11 84:7 84:12 107:24 108:7 184:2 L 185:1 Asbestos ps] 54:6 54:9 66:8 92:25 96:17 97:11 144:13 168:6 178:18 190:8 asbestos [449] 8:8 8:15 10:13 10:20 11:5 11:9 12:4 16:3 20:7 20:13 20:18 21:13 27:9 27:12 28:2 28:12 28:19 28:23 38:24 39:2 29. -*'> 41:21 41:25 42:6 42:14 42:19 43:6 43:11 43:18 43:19 44: L8 44:20 45:4 45.10 45:15 46:2 46:5 46:15 47:10 47: IS 48:8 49:15 50:7 51:6 5 L:22 52:18 53:3 54:22 55:17 59:5 59:23 60:21 61:23 62:17 63:1 63:25 64:21 69:12 70:9 71:15 72:16 75:11 77:24 79:19 80:8 83:12 84:2 84:24 85:17 86:22 87:11 88:4 89:4 90:7 91:19 46:6 46:21 47:14 47:20 48:11 49:19 50:11 51:16 52:2 52:23 53:13 55:6 56:6 59:15 60:9 60:25 62:5 62:17 63:3 64:4 68:25 70:1 70:16 71:19 72:20 77:4 79:5 79:24 81:15 83:21 84:18 85:4 85:21 87:5 87:16 88:11 89:12 90:24 91:22 26:18 62:21 64:14 107:20 184:17 39:7 66:3 95:23 97:13 169:18 8:4 8:20 10:25 12:1 16:4 20:16 27:6 27:15 28:15 38:12 39:12 41:23 42:11 43:2 43:13 44:11 44:24 45:14 46:4 46:9 46:24 47:16 47:24 49:7 49:21 50:24 51:20 52:14 53:1 53:20 55:13 56:12 59:17 60:20 61:3 62:8 62:22 63:7 64:13 69:4 70:6 71:6 71:25 75:7 77:21 79:13 80:2 83:4 83:23 84:20 85:14 86:9 87:8 87:19 88:20 89:23 91:18 92:8 92:15 92:20 92:23 93:1 93:3 93:4 93:13 93:22 94:1 94:4 94:15 95:3 95:11 96:11 98:25 99:7 99:14 99:19 99:25 100:18 100:22 100:24 101:4 101:11 101:17 102:10 102:17 102:20 103:11 103:13 103:17 103:21 103:24 104:7 104:18 105:2 105:4 105:8 105:11 105:23 105:25 106:3 106:5 106:11 106:12 106:24 107:2 107:14 107:16 107:21 108:1 108:8 108:11 108:13 108:16 108:18 108:22 109:1 109:6 109:8 109:17 109:17 110:8 110:9 110:23 111:14 111:16 112:17 113:4 113:11 113:20 113:24 113:24 114:10 114:11 114:19 114:24 115:10 116:2 116:4 116:7 116:22 116:25 117:5 117:10 117:12 117:24 118:4 118:13 118:15 118:24 119:9 120:6 120:11 120:13 120:15 120:17 120:25 121:14 122:4 122:24 123:20 124:8 124:9 124:12 124:18 124:20 125:6 125:8 126:5 126:8 126:11 126:20 126:24 127:14 127:25 128:2 128:4 128:13 129:1 129:3 129:11 129:16 129:24 130:8 130:21 131:1 131:6 131:19 132:12 133:8 133:16 133:20 134:13 134:16 134:19 135:4 135:25 136:5 136:14 136:18 137:1 137:19 137:24 137:24 138:6 138:7 138:10 138:14 138:19 139:4 139:7 139:10 139:12 139-20 139:20 140:3 140:6 140:9 140:12 140:16 L40:17 141:16 142:14 142:17 143:7 L43:14 143:17 143:25 144:2 144:3 144:10 145:6 145:16 146:3 146:12 146:24 147:5 147:8 147:16 148:3 148:12 148:25 149:2 150:16 150:20 150:21 150:24 151:6 151:12 151:19 151:22 152:3 152:4 152:7 152:10 152:16 152:18 153:3 153:4 153:8 153:20 154:3 154:12 154:21 154:24 155:12 155:25 156:11 156:14 156:22 157:5 163:25 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 2 APRIL 20, 2001 asbestos-containing - brought VOLUME 1, JOHN A. PENDERGRASS, CIH, CSljVgK S. CLARK VS. UNION PACIFIC, ET AL 164:18 164:22 170:10 170:14 171:5 171:18 171:19 172:5 172:23 173:10 173:25 175:16 176:10 176:12 176:22 177:9 177:22 178:1 178:8 178:15 178:16 179:15 179:20 179:24 180:7 180:12 180:19 181:10 181:24 181:25 183:25 184:7 184:9 184:11 184:18 184:22 185:2 185:5 185:9 185:13 185:23 186:9 186:16 186:17 186:20 186:24 187:1 187:2 187:10 187:21 188:2 188:5 188:10 188:11 188:15 189:7 189:12 189:22 189:24 190:5 190:5 190:15 190:24 191:9 asbestos-containing [18] 59:5 81:12 81:13 119:16 119:21 124:3 125:11 131:3 151:5 151:18 152:2 152:15 153:19 154:2 154:20 174:16 175:14 176:5 asbestos-exposed pj 97:20 98:4 149:15 asbestos-related psi 65:1 65:4 75:23 76:7 76:17 77:18 78:19 80:13 90:3 98:19 119:17 119:23 121:1 122:20 123:7 142:4 142:25 143:12 149:17 156:3 158:3 158:11 161:21 162:9 162:25 Asbestosis pi 95:18 98:16 153:18 asbestosis [391 42:4 45:11 78:14 87:21 93:18 93:19 94:6 94:8 94:9 94:19 94:25 95:3 95:11 95:17 95:24 96:4 96:11 96:13 97:14 97:25 98:1 98:6 98:12 98:15 105:16 107:16 111:11 150:9 151:6 151:19 152:3 152:16 153:5 153:17 164:18 180:12 180:19 184:1 184:12 aspect [5] 7:7 7:18 7:18 28:20 53:12 aspects [i] 28:1 Assistant pj 36:8 88:23 Associate pi 36:21 37:21 associated pi 94:11 121:24 135:3 135:25 141:16 Associates [i] 35:12 associates 01 32:13 Association 02] 26:13 27:1 29:25 30:2 33:17 33:22 34:3 34:6 34:9 34:12 34:13 189:5 association pj 33:25 Assume pj 125:5 178:16 assume [4] 106:1 108:15 152:7 175:12 assuming p] 176:20 assumptions pj 141:21 ASTM [1] 30:12 Atkinson p] 15:25 15:25 Atmosphere [1] 30:12 attach pi 168:5 168:11 169:3 attached pj 168:25 196:4 attention p] 118:19 137:16 153:13 Attorney pj 196:7 196:8 attorney pi 14:25 15:16 31:19 147:24 194:16 attorneys [i] 195:13 attribute m 133:18 attributed pj 185:8 audibly [i] 5:9 Author [i] 30:12 author p] 60:23 62:19 76:1 authored [i] 31:17 authoritative [32] 61:3 61:8 75:10 156:3 156:10 156:14 156:18 156:22 157:1 157:5 158:4 158:11 158:22 159:1 159:13 159:19 159:24 160:17 161:12 161:20 161:24 162:8 162:24 163:12 169:19 186:24 187:3 187:11 187:12 187:19 187:22 188:3 Authority pi 37:12 37:15 authority [i] 187:18 authors pj 65:2 65:7 99:13 autopsy pj 150:6 150:7 available [6] 52:20 54:1 62:7 124:6 125:12 130:4 Avenue pj 195:4 average [6] 21:1 49:20 49:20 127:14 171:7 171:14 averages pj 6:21 Avoid P] 178:18 176:20 avoid pj 175:16 176:4 176:10 Award m 31:16 award m 31:14 aware [42] 45:9 61:21 61:24 62:15 70:15 71:1 71:5 71:5 72:16 76:6 78:17 84:6 84:7 84:17 84:19 85:20 85:22 86:8 86:14 86:18 90:3 96:7 97:18 99:18 100:19 100:23 101:3 101:8 101:10 102:19 102:23 103:6 103:9 104:2 119:7 134:4 172:2 177:22 178:1 185:1 188:9 189:10 away m 19:1 awhile [1] 60:16 -B- background [ioj 104:9 105:4 105:14 106:6 106:12 114:8 114:11 114:14 118:15 190:19 Baker pi 13:21 13:23 15:15 16:13 Baltimore pj 14:20 15:9 banned PI 126:6 126:7 126:9 banning m 126:11 BARLOW [i u 1 13:25 14:11 25:11 25:13 25:18 25:21 41:18 42:9 42:24 42:25 43:10 44:7 44:16 45:2 49:3 49:17 51:13 52:7 52:10 52:11 52:24 53:5 53:15 55:9 56:19 56:21 58:25 59:3 61:9 65:8 65:12 65:14 67:3 72:12 77:9 89:1 89:2 89:20 89:21 91:12 91:15 91:23 92:2 106:13 108:19 110:5 110:6 112:8 113:18 119:20 124:21 124:24 125:5 125:14 127:19 128:10 128:17 130:6 135:1 144:20 145:24 149:12 152:23 155:19 158:14 158:25 165:17 165:19 166:9 167:4 167:11 167:19 167:23 168:2 168:10 168:14 168:17 168:21 168:24 169:7 171:4 171:17 172:3 172:19 172:21 173:7 173:22 174:3 175:12 176:18 177:3 179:1 179:2 179:13 180:16 181:8 181:15 181:21 182:13 183:4 183:11 183:20 183:24 184:4 186:19 186:23 190:9 190:24 191:8 191:17 196:7 Barlow pj 195:3 194:21 BARONm 195:4 Barry pi 74:21 base pj 53:11 64:15 103:18 128:17 130:13 146:16 Based pi 70:12 135:22 149:6 160:15 based pti 48:12 53:24 53:25 61:11 61:11 62:23 64:7 71:3 75:14 96:20 98:3 102:25 128:10 133:5 133:21 159:19 161:7 161:10 171:6 177:7 177:14 basing .U 157:12 basis pj 62:14 64:16 87:1 90:11 90:20 105:21 117:11 Baton [i] 16:1 Beauchamp pj 14:16 15:19 17:3 Beaumont pi 13:23 became [41 70:25 72:15 72:19 178:1 Beg m 125:3 began [i4j 10:12 11:5 23:13 71:16 129:15 156:9 174:19 176:9 184:11 10:9 23:11 129:10 174:15 179:23 begin pj 10:19 102:1 108:11 177:1 177:8 179:17 179:21 beginning pj 72:1 72:7 begun [u 188:14 behalf [241 9:11 9:17 10:5 11:12 12:8 12:19 13:16 15:6 17:10 17:12 19:3 19:5 19:12 19:21 21:14 21:17 8:16 9:22 12:1 13:5 16:19 18:23 19:11 20:1 behooves [i] 155:8 belief pj 128:6 114:9 belonged pj 165:25 below pj 79:14 103:6 103:17 103:17 105:8 114:16 171:6 171:20 benzene [sj 8:9 8:15 8:20 51:20 141:11 best [9] 25:2 26:2 38:17 53:25 55:1 84:1 102:9 108:20 142:19 bet [1] 134:25 better pj 24:6 38:17 124:19 between [17] 20:22 35:4 85:17 93:15 93:21 94:15 95:8 101:16 102:17 105:20 107:5 120:11 123:12 124:1 182:8 182:14 183:6 beyond m 187:24 big [l] 54:2 bills [1] 13:10 bit [4] 60:13 60:15 112:23 156:25 body pi 160:22 Boeing [5] 27:23 28:5 28:10 28:16 37:16 boilermakers PI 78:13 79:4 79:15 boilers m 55:13 book pi 74:25 75:2 75:10 bookkeeper pi 147:12 books [i] 135:7 bothers pj 52:4 BottS [4] 13:22 13:23 15:15 16:13 bought [1] 56:4 boxes [ii 130:3 Brazil pi 32:11 break pj 5:20 5:22 5:25 6:3 44:7 91:24 167:11 break-through pi 161:23 161:25 breaking pi 159:11 breaks pi 56:18 breathe pj 176:8 Breathing pj 176:20 178:18 breathing pj 175:16 176:5 176:10 briefly pj 34:14 bring pj 25:9 25:12 90:9 91:1 brings pj 142:9 broad pj 9:1 brought ps] 6:9 25:13 25:23 91:17 127:22 129:8 133:25 142:18 146:12 153:13 154:9 167:15 167:17 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 3 APRIL 20, 2001 BUDD - companies VOLUME 1, JOHN A. PENDERGRASS, CIH, SiyVJPKS. CLARK VS. UNION PACIFIC, ET AL 179:24 180:1 BUDD [i] 195:4 Budd [i] 13:21 build in 102:1 Building [t] 195:5 building [i] 160:21 126:14 built [4] 81:11 81:11 144:19 145:12 bunch 1] 69:17 burnec PI 20:1 business p2j 36:4 41:21 43:12 43:18 44:18 45:4 46:2 55:5 58:18 132:3 137:12 171:18 bystander psi 60:25 61:4 61:7 61:12 61:16 62:14 62:22 63:6 63:14 63:17 63:20 63:24 64:8 64:9 65:4 bystanders m 60:20 61:22 62:4 62:16 63:22 64:3 64:12 64:20 147:4 -c- calendar [i] 185:18 Canadian [i] 78:5 Cancer pi 126:23 cancer [62] 54:14 54:15 76:4 85:12 85:12 92:9 92:16 92:20 92:23 92:25 93:1 93:5 93:8 93:13 93:19 94:2 94:5 94:9 94:9 94:15 94:19 94:20 94:25 95:2 95:12 95:17 95:19 95:23 96:3 96:12 96:18 97:7 97:12 97:16 97:22 98:4 98:14 98:17 98:19 98:25 99:8 99:15 99:20 100:1 100:3 100:18 100:22 100:24 101:5 101:11 101:18 102:11 102:18 102:21 153:20 154:3 154:13 154:14 154:15 154:21 164:22 185:8 cancers pi 97:19 96:1 canepj 54:9 cannot isj 28:13 74:17 117:22 158:1 183:1 22:10 98:21 161:13 capability pi 177:12 capable [4j 82:11 90:7 164:7 63:2 119:16 car [4] 9:6 9:7 9:14 17:14 card pi 193:14 care nsi 52:13 109:7 109:9 122:12 134:6 138:19 140:25 141:23 141:24 142:12 145:19 165:14 170:18 171:8 17T-25 career [4] 9:21 49:22 116:23 119:22 careful PI 74:1 74:2 190:21 carried PI 126:2 56:8 carrier fl] 151:24 Case pj 87:1 case [52] 5:2 9:4 10:14 10:15 10:16 10:17 10:18 11:19 16:2 16:4 16:8 16:21 17:15 17:22 18:12 19:3 19:7 46:11 46:13 65:15 65:21 66:17 68:11 68:12 68:18 68:22 69:2 76:5 76:6 76:9 80:22 81:18 84:6 86:19 86:24 94:3 95:8 98:22 99:3 99:4 100:4 111:3 127:13 138:1 140:23 140:25 142:11 150:1 154:6 164:24 173:16 185:8 cases [4oi 8:12 8:14 10:5 10:12 10:13 17:9 18:10 18:16 18:23 19:4 21:12 75:23 76:4 78:16 78:17 83:13 83:18 84:3 85:2 85:5 85:25 87:23 90:3 93:12 93:18 94:7 94:8 94:9 94:18 94:24 95:2 104:4 104:16 105:16 106:19 106:20 118:21 133:22 146:17 157:23 Castleman pj 74:21 75:13 75:20 Castleman's pi 74:25 75:2 75:16 category pj 33:13 79:7 154:23 causation pi 86:25 94:15 caused PI 84:25 91:19 91:19 91:22 94:6 95:24 100:2 154:3 154:12 causes [9] 62:22 65:1 83:9 84:18 85:14 85:16 86:15 101:17 104:20 causing [5] 90:8 90:23 106:6 118:15 119:16 Caution pi 175:16 178:18 caution pi 174:15 174:19 175:13 175:15 176:9 caveat UI 95:6 95:5 caveats p] 96:16 CC [161 39:19 39:24 39:25 40:4 40:5 40:6 87:9 87:18 88:3 88:8 88:10 88:20 89:4 118:9 119:10 119:13 ceiling PI 47:7 cement [41 152:2 152:5 152:7 154:12 Center m 195:9 Centrum pi 195:5 certain [12] 17:25 18:14 47:3 48:8 72:21 96:17 96:18 97:12 97:13 105:24 121:21 125:22 Certainly m 7:7 45:7 57:13 144:10 155:7 159:6 164:4 certainly p9] 42:17 45:12 50:12 63:2 63:10 73:9 79:25 87:2 87:6 88:24 90:18 102:16 103:10 140:20 141:8 151:11 151:21 155:14 155:17 159:11 173:12 175:3 178:13 180:23 181:6 183:18 185:24 190:1 certainty pi 185:20 185:21 186:5 certificate pi 196:13 CERTIFICATION Pi 194 7 196:1 certification pi Certified pi 17:23 195:19 196:16 certified pi 195:17 certity [21 195:11 194:10 chain pj 183:2 Champlin pi 69:19 70:15 80:16 80:21 127:7 chance PI 13:4 96:14 167:17 CHANGE pi 192:2 Change in 60:13 change PU 39:14 39:15 40:8 43:21 60:15 140:3 145:2 39:11 39:16 44:14 144:20 changed pi 37:21 39:18 39:21 39:24 127:4 CHANGES [ij 192:1 Changes [ij 196:4 changes pi 151:3 196:5 Chapter [l] 30:12 chapter pi 30:13 30:13 33:3 33:11 33:16 169:8 169:17 chapters p] 34: l characteristics pj 42:7 42:22 charge [ij 173:8 charges m 196:9 chemical pi 184:19 184:23 185:2 Chest m 149:23 Chest [5] 149:16 149:24 150:19 155:20 156:1 Chief pi 19:16 19:9 children ui 147:18 chlorinated [i] 8:20 choice pi 42:20 42:6 chopped [1] 9:5 chose 111 48:8 Chronology pj 66:3 66:7 168:6 169:17 chronology p] 25:10 chrysodle pj 39:24 40:5 189:16 cigarette p] 93:22 94:12 95:8 97:9 97:15 97:17 99:12 cigarettes pi 93:14 95:12 CIH [51 193:2 193:6 193:12 194:7 194:11 circles in 73:io circumspect pi 135:14 circumstance m 174:6 circumstances ps) 57:21 59:13 110:15 111:3 120:25 121:21 122:4 130:23 132:7 132:17 138:1 140:10 140:18 147:2 147:15 160:5 173:21 173:23 citation pj 119:6 cite pi 119:1 cited in 118:22 citizen pi 51:4 City [71 11:19 11:21 11:21 93:11 123:11 123:13 123:14 claim [4i 18:14 18:20 18:21 63:25 claims pi 80:12 clarifying pi 100:14 CLARK [4] 194:2 194:3 195:2 195:3 Clark pi 127:15 127:10 Clark's pi - :25 69:5 69:7 clean m 5:17 15:2 162:5 163:2 clear pj 5:7 12:6 12:22 35:18 57:24 77:3 111:21 114:22 155:20 Clerk pi 196:15 client [i) 13:12 Close pi 7:13 Close [2] 7:12 52:22 closed pi 35:16 cloth pi 45:15 153:4 153:6 clothes pi 90:9 91:1 91:18 130:17 130:21 130:25 131:4 co-author pi 76:2 co-authored pi 31:9 33:3 Coast pi 163:6 coast pi 162:16 160:7 Coastal pi 11:19 12:9 15:7 colleagues pi 55:5 colon pj 92:15 92:8 combination pj 93:22 coming pi 27:16 55:5 89:5 100:6 156:15 comment pj 75:17 75:18 157:15 commented pi 71:12 comments pi 81:3 157:17 Committee pj 38:14 common pj 44:1 commonly pj 189:23 190:1 communication p) 138:18 Communications pi 138:24 Companies p] 12:18 companies ps>] 11:11 11:25 12:4 12:7 13:4 13:11 13:19 15:5 18:13 21:16 32:22 50:6 54:21 166:17 180:21 180:25 181:2 181:23 183:12 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 4 APRIL 20, 2001 COMPANY - CV VOLUME 1, JOHN A. PENDERGRASS, CIH, SfJMK S. CLARK VS. UNION PACIFIC, ET AL COMPANY p] 194:6 195:6 Company pj 27:23 37:16 151:9 company [24i ii:8 11:17 14:22 18:15 18:17 18:17 19:19 19:23 46:24 47:2 50:10 51:14 54:17 132:2 165:12 172:11 180:21 181:9 181:10 181:22 182:5 182:9 185:12 185:22 company's [lj 181.-8 comparem 85: ll compared pi 85:3 105:14 111:7 compelling [lj 140:21 compensation pi 80:12 competent pi 7:9 73:15 compile pi 13:8 23:6 compiled [l] 26:23 compiling [i] 23:1 complete pj 26:3 compliance [i3j 49:12 50:22 51:4 58:3 58:6 58:11 58:15 58:19 114:7 117:16 133:2 170:19 172:11 comply pi 49:1 58:2 compounds p] 4i:i conceivable pi 95:15 96:13 120:4 conceive pj 183:16 concentration p4] 90:15 90:17 97:3 109:13 109:25 115:5 116:19 119:4 138:13 142:17 160:2 176:3 189:18 189:19 concentrations [12] 84:20 85:1 97:4 105:14 109:23 111:5 117:17 123:2 127:14 134:2 160:3 187:6 concern p9j 28:12 42:1 43:24 45:19 46:10 53:14 53:15 53:22 54:2 54:8 55:6 56:14 109:22 111:9 135:16 141:4 147:3 147:11 150:23 concerned [i4] 17:25 45:1 46:3 46:25 47:16 110:20 115:20 141:9 141:10 141:11 147:13 147:15 157:18 185:25 concerning pj 52:2 52:14 53:2 54:18 55:17 58:20 63:1 63:6 181:9 CONCLUDED pi 191:19 conclusion [4] 100:6 101:1 102:9 160:11 conclusions pi 100:14 conclusive [2] 84:16 87:2 conclusively pi 99:7 102:11 concur pj 62: ll conditions p8j 7:6 7:20 64:15 71:21 72:21 78:24 81:7 110:12 122:8 122:9 142:19 143:18 173:14 174:13 175:7 175:7 175:8 180:10 conduct [4] 32:4 32:4 32:16 84:4 conducted (4j 32.10 82:21 107:9 123:19 conducting pi 84:1 Conference [6j 36:12 38:22 40:11 42:13 44:10 44:19 confident pj 88:2 confine pj 127:8 confined p] 36: n 121:11 121:16 confining pj 121:3 confirmation pj 156:16 confuse [lj 77:9 confused [1] 99:23 connection pj 70:4 80:21 connotation pj 56:9 conscientious pi 177:17 consequences pj 135:10 173:5 consider p<sj 62:25 82:9 82:13 82:17 82:20 115:17 115:23 115:24 134:19 156:2 156:13 156:21 156:24 158:4 159:23 161:11 considerably pj 123:23 132:22 152:19 consideration [9j 55:22 60:5 62:1 99:11 121:13 131:10 131:17 133:3 193:15 considerations pj 59:22 considered pj 42:l 42:6 42:19 83:16 102:5 102:14 102:15 considering pj 44:23 consistent pi 40:20 consult [4] 7:3 8:3 10:5 13:11 consultant [6j 6:16 6:19 7:2 34:17 127:22 127:23 consultations pi 7:25 Consulted [u 12:21 consulted poi 8:12 9:11 9:17 9:22 10:15 12:19 13:5 13:16 13:19 14:22 15:6 15:13 15:16 16:10 17:9 17:12 18:11 18:23 19:3 19:5 Consulting pi 12:13 consulting [37j 7:10 7:14 7:17 7:22 10:5 10:9 10:13 10:20 11:5 16:5 16:5 16:18 17:2 17:5 19:11 19:19 20:15 21:17 23: Ll 23:13 23:15 23:19 23:22 24:1 24:4 24:14 24:18 24:22 25:4 25:7 35:9 35:12 35:14 35:20 35:23 35:25 51:14 contacted p) 12:16 contained [4] 46:9 49:19 56:12 127:25 containing pi 126:6 126:9 126:12 126:21 126:25 153:4 178:17 contains [si 49:7 119:9 124:8 175:16 196:5 contaminants pi 55:7 63:4 continued pi 46:11 46:12 Continuing m 92:5 contracted pj 17:17 contractor [i) 37:17 contractors pi 129:8 129:19 142:18 146:11 175:10 185:25 186:15 186:16 contrary m 101:13 contribute pj 93:4 99:19 151:2 contributed pi 94:20 101:1 160:23 contributes pi 100:5 contributing hi 95:3 96:1 99:14 99:16 contributions p| 32:21 control [3] 35:2 129:2 129:23 controls [141 31:12 76:23 110:24 110:25 130:8 131:7 131:20 132:13 145:18 146:5 146:13 146:25 175:22 176:7 convinced pj 84:21 85:14 85:15 convincing pj 106:9 Cook pi 150:12 150:11 Copies pj 196:11 copy [7j 168:5 168:9 168:10 L68:23 168:25 169:2 196:13 COrd [l| 56:5 corporate pi 70:13 71:4 181:3 Corporation pj 11:18 12:9 15:7 34:23 34:25 36:2 36:5 corporation pj 35:1 37:13 correct psi 5:4 11:7 15:9 23:23 23:24 25:24 40:7 43:16 58:5 58:13 114:1 122:21 144:11 160:14 166:17 173:1 179:18 193:3 correctly pi 82:22 cotton PI 54:9 Councils) 183:25 184:5 184:10 184:15 COUNSEL pj 25:17 31:3 65:13 counsel PI 65:23 66:7 167:15 194:25 195:11 countries pj 83:11 country [4j 32: ll 32:15 42:3 111:12 COUNTY [2] 193:10 194:4 couple pi 9:15 75:25 76:3 course poj 9:21 11:18 13:20 32:1 33:8 37:12 41:16 47:2 53:9 67:8 68:25 70:4 81:3 92:6 104:14 107:15 108:21 117:8 120:6 122:6 122:25 134:17 147:8 150:12 159:2 159:10 159:25 165:9 189:17 191:5 Courses [1] 27:16 courses [4] 27:14 27:21 32:23 54:6 COURT pj 72:6 194:2 Court [4] 22:15 22:25 23:4 23:4 court [3J 5:10 12:12 168:9 cover pj 18:13 covered [s] 18:14 57:8 57:11 155:14 156:8 covering p9j 47:18 47:20 47:25 48:22 49:7 49:18 113:24 114:19 115:11 116:22 117:5 117:10 117:12 117:25 118:4 119:16 119:19 119:21 120:2 121:4 121:5 121:15 121:25 122:5 124:3 124:8 124:12 125:6 125:8 126:6 130:9 151:5 151:18 153:19 154:2 L76:6 176:19 190:6 190:8 covers [I] 44:22 Craig pj 195:7 194:21 create pj 146:20 created pj 58:23 creates pj H5:i9 creating pj 59:4 critical pj 161:9 criticism pj 74:10 161:7 criticisms pj 38:10 73:23 75:13 L57:9 criticizing pj 162:14 critique pj 82:14 crocidolite pj 40:i 40:6 189:17 CRRpj 194:9 195:21 196:20 Crux pi 143:9 143:10 CSP[5l 193:2 193:6 193:12 194:7 194:11 CSR [3] 194:9 195:21 196:20 cubic [12J 39:10 39:20 54:4 54:13 55:11 55:25 59:6 59:16 109:13 116:9 116:11 171:6 culture PI 182:20 182:5 current [<sj 37:23 118:9 156:11 156:13 157:5 157:7 curriculum [4j 25:22 25:25 26:3 147:9 CUSppj 159:4 Custodial pj 196:8 customer pj 56:ll CUt plj 17:18 35:22 114:24 115:10 115:14 115:15 115:16 116:22 138:6 176:6 177:5 Cutting [lj 115:19 cutting [4] 17:19 113:6 114:19 119:8 CV[4] 25:19 29:11 35:5 65:10 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 TnrW Page 5 APRIL 20, 2001 Cyanamid - dust VOLUME 1, JOHN A. PENDERGRASS, CIH, 8ffly\fK S. CLARK VS. UNION PACIFIC, ET AL Cyanamid [4j 27:24 28:5 28:11 28:17 -D- Dadp] 148:2 148:20 daily pj 59:19 48:12 Dallas p] 195:5 damage pj 126:14 data [6] 93:16 100:11 100:25 101:21 157:12 190:20 Datepj 195:21 196:21 date p4] 25:25 37:8 60:22 70:25 71:13 129:20 136:16 146:1 169:25 170:3 170:4 170:13 186:3 186:5 dates pi 129:6 129:12 139:14 David p] 73:18 73:16 days [8] 6:15 6:21 115:6 118:10 120:6 133:5 159:3 194:18 dead pj 156:5 deal [6] 13:9 43:21 61:6 87:7 123:10 186:17 deals pj 32:1 debate p] DEBRA pi 196:20 135:8 195:21 Debra pj 194:9 decade pi decades pi 133:23 163:3 168:8 129:13 37:25 DECEASED pj 195:3 Deceased p] 194:3 decided pj 33:23 186:14 decision pi 89:18 90:1 decisions pi 38:20 157:18 defendant pj 17:16 DEFENDANTS p] 195:6 Defendants [4] 16:8 17:4 127:12 140:24 defendants p4] 8:17 9:22 10:6 16:14 16:16 16:17 16:20 16:21 16:25 17:3 17:7 17:8 21:14 142:11 Defense p] 29:5 defense p] 68:21 68:18 define pj 61:15 64:9 defining pi 146:6 definitely pj 171:11 definition pj 63:24 114:18 definitive p] 22:10 96:9 102:17 degree pj 52:13 23:9 delivered p] 178:17 196:6 196:12 demonstrate p] 135:21 Department 12] 31:1 36:8 department pi 118:17 depend in] 78:23 79:21 113:5 116:15 116:16 116:18 125:17 131:24 155:1 176:16 190:10 dependent pi 32:21 Depending pi 140:10 185:17 depending in) 24:24 59:12 110:14 126:1 130:4 132:17 138:13 147:1 154:23 179:8 180:20 deposed [i] 23:5 DEPOSITION [4j 25:20 169:6 191:19 194:7 deposition [25] 10:22 10:25 14:15 20:13 20:14 21:1 70:13 71:2 72:13 72:18 92:5 162:23 167:23 177:15 193:3 194:13 194:15 194:20 194:24 196:2 196:3 196:6 196:9 196:10 196:12 depositions [is] 5:4 12:14 12:15 12:17 20:6 20:16 20:18 21:9 21:17 21:19 22:11 71:4 73:21 74:6 74:18 75:16 129:7 141:1 description [i] 193:13 designated pi 22:14 22:25 desirable pi 42:8 42:22 details pi 172:7 19:13 determination pi 75:9 determine pi 23:3 41:22 57:6 90:17 104:24 106:10 114:6 165:6 178:8 determining pj 107:25 develop m 35:2 96:14 104:9 105:11 105:15 105:17 105:24 developed pi 98:5 98:12 106:2 developing p2i 60:20 61:23 62:5 62:17 64:4 64:13 64:21 69:11 76:17 77:4 77:18 78:19 79:5 79:13 79:19 79:24 80:8 87:20 116:25 142:24 143:12 147:5 development p| 75:11 100:25 develops [ii 103:14 diagnose [ii 150:15 died pj 156:9 difference [si 107:4 124:1 124:6 124:15 183:10 different p9i 33:8 37:11 39:21 40:3 69:18 69:21 91:9 97:10 100:13 117:15 119:24 120:8 120:9 120:14 123:10 123:23 131:16 132:3 146:8 150:14 153:7 161:18 165:10 165:23 182:8 182:9 186:12 186:17 186:22 difficult pj 88:16 90:10 166:6 difficulty in 69:14 digestion pi 107:10 dinner iei 67:13 67:14 67:19 68:14 Director pi 32:9 34:22 67:11 67:17 7. o n disagree pi 62:3 64:2 74:16 89:10 89:22 90:12 137:9 137:10 160:14 discourage pi 182:8 discover pi 165:21 discuss pi 68:20 76:7 184:18 185:1 discussed hi 68:23 84:14 155:22 184:22 discusses pj 92:14 190:14 Discussing m 68:12 discussing pi 68:10 101:4 107:20 107:25 184:11 discussion p] 68:15 discussions pi 81:20 118:17 disease poi 42:3 42:5 45:11 60:21 61:23 62:5 62:9 62:10 62:17 62:22 64:1 64:4 64:10 64:13 64:18 64:21 65:5 69:12 75:23 76:8 76:17 77:5 77:18 78:7 78:19 79:5 79:13 79:19 79:24 80:8 80:13 85:19 86:25 87:2 87:11 87:19 98:16 107:16 111:11 116:25 119:17 119:23 120:3 120:17 121:1 122:21 122:24 123:7 123:21 133:25 134:13 134:16 134:19 134:20 134:22 142:25 143:13 143:18 147:5 149:18 149:20 150:9 . 150:20 150:23 151:11 151:21 155:12 155:18 155:25 156:4 156:11 156:14 156:22 157:6 158:3 158:12 161:21 162:9 162:25 163:25 disease-causing pj 64:16 115:5 diseases pi 65:1 85:11 134:4 dispute pi 19:20 disputed pj 100:20 disputing [si 100:16 100:21 101:10 101:16 101:18 Disregard p) 50:3 disregard pi 182:4 dissension pi 102:14 distinction pj 96:3 101:15 123:12 distinguish pi 120:11 DISTRICT pj 194:2 194:6 divide pi 7:21 divisions pi 182:9 doctors [i] 134:24 document p] 193:14 DOCUMENTS [4] 25:17 30:24 31:3 65:13 documents psj 65:22 66:6 67:15 67:18 70:13 71:4 71:14 71:22 80:11 80:12 81:21 164:13 167:14 167:17 184:5 Dodge pj 15:10 doesn't m 58:22 71:9 73:22 87:24 101:23 118:19 163:10 Doll pi 97:21 99:6 Doll's [1] 165:2 done pi] 14:20 31:11 49:13 53:25 63:5 63:15 65:14 65:20 75:22 83:10 89:9 89:15 104:24 106:10 106:15 107:10 107:17 108:23 109:3 109:11 109:15 113:6 114:5 114:6 114:12 115:16 115:19 117:15 121:10 121:10 121:16 121:21 123:10 126:18 126:18 128:8 128:21 132:16 132:18 144:4 144:7 146:18 149:22 160:19 160:21 161:17 162:17 163:11 165:25 166:7 166:11 166:23 167:6 173:20 176:17 176:22 176:23 179:9 186:6 186:8 186:20 dosepj 189:18 190:3 doubt pi 30:16 33:15 136:7 142:8 150:21 Dowels PI 144:25 down p2] 13:23 35:11 41:19 44:8 104:15 130:3 155:6 183:3 9:6 35:16 78:9 134:2 dozen [4] 9:19 9:24 17:11 27:4 Dr p7] 43:22 44:3 44:15 73:1 73:5 73:11 73:16 73:18 73:24 74:10 74:21 74:25 75:2 75:13 75:15 75:20 76:1 76:5 76:14 77:22 85:24 93:7 150:3 150:11 151:8 157:9 157:19 159:23 160:16 160:16 161:7 161:7 161:10 161:10 162:10 163:14 185:6 drawpj 101:15 drawing pi 160:10 dream pj 122:9 Dreessen [<n 77:22 108:21 108:24 109:11 153:11 160:12 DRIp] 29:3 29:4 Drinker pj 161:7 161:10 Drinker's pj 160:16 dropped pj 17:19 drywall pj 79:21 80:2 drywallers pj 79:18 79:23 due pj 134:7 duly p] 194:12 duplicate p] 102:4 Duquaine p] 12:24 12:25 15:8 during [5] 52:2 68:7 109:8 129:23 130:8 Dust p] 176:20 178:18 dUSt [13] 54:9 59:5 59:5 59:23 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 6 APRIL 20, 2001 dust-containing - exposure VOLUME 1, JOHN A. PENDERGRASS, CIH, 8**MK S. CLARK VS. UNION PACIFIC, ET AL 108:25 110:19 115:22 116:2 116:5 116:7 175:16 176:5 176:10 dust-containing p] 59:15 195:12 employee [121 36:24 37:1 37:5 37:23 38:4 46:10 139:18 142:22 143:1 143:2 dusty [2j 80:3 79:25 183:9 183:11 employee's in 140:7 duty [in 55:15 55:20 56:25 57:2 143:13 172:4 174:21 51:6 56:22 140:8 172:8 -E- Eagleman pi 73:16 73:19 73:24 Eagleman's uj 74:10 early [i3j 11:1 97:2 98:21 107:19 109:23 110:16 129:14 129:15 140:5 152:8 153:10 159:3 186:13 easier [i] 187:17 East [2] 106:16 107:9 east [2] 127:9 127:10 edition pj 135:6 editor's m 101:6 editors [ij 33:8 educate m 177:13 effect p] 94:15 49:22 effectively [i] 126:16 effort [4j 54:21 89:8 89:11 89:22 efforts [i] 178:7 egotistical p] 74:5 74:6 employees [40] 37:8 42:15 46:4 47:1 47:5 51:7 55:18 59:4 69:11 70:8 71:23 80:14 80:20 108:12 110:9 111:15 130:21 134:4 135:3 137:19 138:9 140:16 141:4 141:8 143:4 143:5 143:6 143:11 146:11 155:11 165:6 165:13 165:21 172:15 174:22 178:9 178:22 180:7 181:12 186:20 employees' m 130:17 employer p9j 41:21 42:11 42:18 43:1 43:6 43:11 43:18 44:9 44:17 45:3 46:25 50:22 51:25 52:12 52:25 53:9 56:22 57:10 57:16 58:3 58:11 58:14 108:11 110:1 128:9 137:18 137:22 139:3 139:19 140:7 140:15 141:13 142:21 170:17 171:4 171:18 172:3 172:22 173:23 employers ps] 41:5 41:10 43:14 45:7 46:8 47:15 50:6 51:5 52:5 52:19 53:17 57:5 134:4 174:6 182:19 188:11 Eightm 6-23 employers' pj 44:24 eight M 7:15 64:17 108:5 115:5 118:9 133:5 eight-hour pi 48:12 127:13 173:3 eight-hour-a-day pi 90:19 Either p] 156:6 151:15 either m 41:17 90:14 93:20 93:23 101:13 108:17 151:24 Electric p] 15:8 12:24 electricians [i] 79:12 eligible [4] 37:13 37:15 37:18 166:18 Email p] 196:24 195:25 embarrassing HI 162:18 emphasize pi 147:10 employed [si 36:17 129:1 141:14 142:3 employing pi 129:23 employment pj 68:25 69:5 69:7 enactec HI 170:9 enclosed p] 113:3 123:3 123:15 enclosure p] 113:8 190:18 enclosures [i] 175:11 Encyclopedia [1] 30:8 end [4] 125:17 132:5 138:5 143:23 enforced [i] 49:11 engineer [i] 177:24 engineering p3] 110:24 129:1 129:23 130:8 131:7 131:20 132:13 145:18 146:5 146:13 146:24 175:22 176:7 England pj 76:10 77:23 enjoying pi 134:10 ensure in 144:2 enter [i] 89:18 entire m 119:22 entirely [ij 120:9 entitled [6] 26:6 33:4 66:3 138:20 139:3 169:17 entity pi 149:20 environment PI 32:1 47:10 107:1 Environmental [ioi 31:4 31:8 31:22 31:24 32:7 32:10 32:16 32:19 32:24 34:22 environmental pi 31:12 32:1 32:14 EPA [3] 31:10 31:14 186:25 EPA's [i] 186:23 epidemiological ii<>) 82:12 82:14 82:21 83:2 83:22 84:5 84:17 85:20 86:9 86:14 epidemiologist pi 82:7 82:18 162:16 epidemiology 1>I 82:10 error pi 169:24 errors m 169:21 ESQm .196:7 Esq [4] 194:21 194:21 195:3 195:7 essentially [4| 75:7 91:4 114:8 176:14 establish m 117:16 established [4| 87:17 96:22 99:7 102:2 ESTATE [11 195:2 Estate [ij 194:3 estimate [6] 8:19 20:19 22:1 25:1 25:2 85:8 ET [1] 195:6 et p] 77:23 194:6 Ethyl pj 11:18 12:9 15:7 evaluate [si 7:19 19:15 82:15 115:13 173:14 evaluated p] 190:13 evaluating pi 8:16 60:9 63:3 evaluation [ij 7:6 evaluator m 173:17 event [i] 144:8 eventually pi 100:6 160:22 Everybody pi 5:23 103:23 everybody [6] 77:14 103:20 103:21 106:1 145:22 155:8 everybody's pj 57:2 evidence pi 87:2 87:18 127:2 127:12 127:17 127:18 142:2 188:9 188:13 Exact [ii 129:20 exact [ij 11:20 exactly [121 66:19 67:23 70:22 73:7 91:4 94:23 95:20 106:17 145:22 150:8 172:21 176:23 examination p] 194:17 examining pi 97:5 97:6 example m 45:15 examples m 157:19 exceed pi 122:14 119:10 exceeding [i] 176:12 exceeds m 122:6 except [4| 74:7 93:9 95:21 193:3 excess ii 128:7 128:20 128:24 171:11 171:15 175:8 excessive pi 140:13 140:20 144:3 175:5 176:3 excessively pj 70:9 139:25 143:24 exchange pi 182:8 182:21 excuse [ii 110:24 executed pi '"3:15 executive pj 173:8 173:18 173:20 executives in 71:24 exercise pi 110:1 117:9 exercising [4] 52:12 58:4 109:18 173:25 exhaust pi 125:23 EXHIBIT pi 25:20 169:6 Exhibit [4] 25:19 25:22 168:4 168:23 exhibits pi 196:11 exist [81 26:19 45:17 50:23 76:23 81:10 84:5 85:12 174:13 existed p] 81:10 108:25 172:2 179:11 180:10 existence p] 80:13 exists p] 187:8 76:24 expect pi 171:17 171:23 182:5 expected p] 78:8 expended p] 89:7 expending pj 89:11 89:22 expense pj 89:10 experience pi 34:15 42:3 61:11 64:22 64:24 81:4 133:8 141:9 183:16 expert [4] 17:22 18:7 62:25 82:9 expertise pi 51:10 Expiration pj 195:21 196:21 Explain p] 114:3 120:1 explain [4] 59:14 61:9 68:17 131:23 explosion pj 141:10 expose 121 59:4 42:15 exposed poj 8:6 59:18 70:9 86:22 88:13 95:11 103:13 103:21 103:23 105:1 105:5 105:13 106:6 106:24 127:15 128:7 130:15 139:25 143:24 155:24 Exposure p] 93:1 exposure [1201 38:24 39:2 39:7 39:12 40:21 41:1 41:23 43:13 43:19 44:11 44:20 46:4 46:14 48:12 48:17 50:7 50:8 50:11 50:24 51:17 51:22 52:2 52:14 52:22 53:3 56:14 56:15 59:25 60:1 60:21 60:25 61:4 61:7 62:2 62:11 62:18 62:22 63:6 63:14 63:17 63:20 64:9 65:4 76:21 78:11 78:25 79:9 83:13 83:21 84:2 84:23 84:24 86:4 86:8 86:10 87:5 87:16 88:4 88:11 88:20 89:3 89:24 90:4 93:3 93:4 93:8 93:22 94:5 95:15 95:24 96:11 96:17 96:24 97:11 98:11 102:25 103:17 104:18 104:21 105:8 105:10 105:22 105:25 106:11 106:12 106:21 108:1 110:20 114:11 115:6 118:15 122:7 122:14 123:4 132:19 132:21 132:25 133:4 138:2 140:13 140:20 141:11 147:16 149:7 151:12 155:17 159:7 160:2 160:9 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 7 APRIL 20, 2001 VOLUME 1, JOHN A. PENDERGRASS, CIH, Exposures - guess S. CLARK VS UNION PACIFIC, ET AL 160:10 160:13 171:19 172:5 176:12 176:22 185:8 188:5 188:7 189:20 190:5 Exposures pi 123:25 exposures p2j 8:16 45:10 45:10 45:16 46:16 51:7 55:17 61:13 64:16 78:12 87:21 88:17 90:14 90:21 103:11 103:11 107:14 107:21 108:12 111:14 112:2 113:23 115:7 133:8 134:1 144:2 147:10 170:10 173:4 173:10 174:1 175:5 expressed pj 193:15 extended pi 37:25 extent p] 77:25 77:25 78:7 extremely m 84:20 134:3 Exxon [i] 164:5 -F- fabric pj 153:13 fabrics pi 153:8 152:20 faced pi 49:13 facilities p] 47:8 facility [i3j 71:5 71:24 128:25 140:24 141:15 142:12 142:23 146:3 155:11 174:17 174:20 175:15 186:9 Facsimile pj 195:24 196:23 fact [17] 17:24 62:24 86:21 89:6 101:23 102:3 102:6 103:20 115:13 117:15 118:18 133:21 160:12 175:2 179:7 179:23 180:2 factor [s] 95:3 96:1 99:15 99:16 99:22 factors [i] 61:19 facts [1] 100:14 fair [5] 22:5 95:22 115:21 133:12 134:8 fairly pj 144:8 103:11 fall p] 19:4 154:22 falling [l] 18:6 false [1] 47:7 familiar [4] 38:21 74:22 156:19 164:10 family pj 90:25 90:8 far [23] 11:25 12:7 15:5 15:13 17:24 21:9 35:11 37:22 53:16 86:2 87:23 93:14 103:5 111:18 115:5 115:19 129:17 134:3 143:22 157:18 160:12 161:15 191:17 favorably pi 73:22 Federal [4] 22:15 22:25 23:3 23:4 federal p'' 50:6 50:13 50:23 52:1 52:14 66:2 66:10 66:11 117:16 155:7 155:8 feet pi 130:12 Fell pi 9:7 fell [4] 9:5 9:6 9:14 17:13 felt [<n 42:23 43:15 52:22 72:22 128:1 165:15 few [4] 42:22 164:15 169:20 172:1 fiber mi 39:25 39:25 40:5 40:6 62:11 86:5 87:9 88:1 88:6 119:10 189:12 189:22 fibers [i4] 39:24 40:4 87:18 88:3 88:10 88:20 108:18 118:9 153:7 39:19 60:6 88:8 89:4 119:13 field [1] 181:25 figure [si 30:23 85:10 122:1 122:3 190:12 figuring pj 69:14 filed [1] 196:14 files [1] 108:2 final [1] 99:2 finally p] 5:19 financially [i] 195:14 finding p] 170:2 findings [i] 44:3 Finep] 91:25 fine [2] 5:14 168:12 finish p] 162:23 5:17 Fire pi 19:9 19:16 fire p] 19:7 19:17 20:1 20:5 141:10 firefighting pj 9:4 tirm [9] 13:13 14:1 14:10 14:16 14:17 14:19 15:19 17:6 35:12 firms p] 13:15 15:13 15:21 First [3] 136:4 136:5 175:6 first [58] 7:15 10:8 10:12 10:14 10:15 10:24 11:2 11:8 26:12 39:1 39:6 39:14 39:15 39:16 41:1 43:23 45:23 48:13 50:13 50:16 60:18 66:16 66:20 70:14 71:1 71:3 71:8 77:7 93:7 97:8 98:14 98:18 107:13 108:19 108:20 127:9 129:21 135:1 135:6 135:23 136:2 136:3 136:7 136:22 136:24 137:3 148:14 149:14 149:17 150:15 150:17 150:22 152:5 160:1 164:23 177:22 178:1 179:3 fit [1] 79:6 five [16] 5:23 20 21:6 21:25 22:4 27:3 88:10 88:15 115:6 118:10 133:5 178:20 178:23 179:3 179:14 flanges p] 145:13 144:24 Fleischer pj 160:16 161:7 161:10 Fleischer's pi 159:23 159:25 flow [11 183:2 folder [i i 169:11 folks [II 15:24 follow pi 47:4 47:4 48:9 50:6 50:10 118:20 135:18 followed [l i 108:24 following [4] 50:19 170:17 194:10 194:25 follows [1J 194:20 foot [121 39:10 54:4 54:13 55:25 59:6 109:13 116:9 171:6 39:20 55:11 59:16 116:11 foregoing pi 193:3 193:14 foreign tu 183:15 form [67] 41:24 42:16 43:20 44:12 44:21 48:24 49:9 51:8 52:3 52:8 52:16 53:7 54:24 55:19 61:5 77:6 91:14 106:8 108:14 109:20 112:3 113:13 119:18 124:13 125:4 125:10 127:16 128:5 128:14 130:1 134:21 144:12 145:20 149:5 152:17 155:13 165:7 165:22 166:25 170:21 171:9 171:22 172:14 173:2 173:11 174:2 174:23 176:13 179:6 180:13 181:5 181:13 181:18 182:3 182:16 183:7 183:14 183:21 184:2 186:11 186:21 190:7 190:23 190:25 191:15 former [4] 34:2 36:23 37:8 80:20 forming [4] 80:21 81:17 82:2 86:24 formulations [i] 189:24 found [i7] 81:17 93:7 93:16 95:10 97:19 100 101:24 102 122:20 123:7 159:4 63:22 93:12 97:7 101:23 114:13 123:20 founded pi 38:1 38:3 four [I) 27:3 four-name [i] 14:17 fraction pi 115:16 Frank [i] 137:12 frankly pi 87:12 142:6 149:7 friable pi 47:17 47:9 front pi 44:6 full [l] 60:3 full-time pi 7:16 132:3 141:6 funds pi 32:23 32:19 futility pi 117:9 -G- gained (u 82:2 gap PI 35:4 35:6 Gas P) 14:20 15:9 gears pi 60:13 60:15 111:22 General pi 11:17 general pj 12:4 19:15 19:16 55:24 I 56:7 189:7 101:18 164:12 I Generally pj 145:9 I generally [i9i 8:6 12:8 13:13 38:15 61:20 I 68:24 71:25 73:14 81:5 81:25 98:24 114:13 140:2 32:14 68:10 72:16 81:14 99:24 182:18 generate pi 32:22 GeRefCo [4] 12:2 12:8 15:6 16:23 German pj 164:25 Germans pj 98:21 gestation pj 96:5 gist [11 59:2 Given pj 193:17 given ps] 5:3 12:15 20:6 21:9 23:7 24:13 29:3 71:4 73:21 80:11 125:2 150:9 163:8 194:14 194:23 giving [i] 149:10 glove [i] 130:3 goes [6] 33:8 96:25 134:9 134:17 '*1:7 159:2 gone [4] 43:1 117:14 118:22 187:24 good [S8J 56:4 57:19 57:25 58:4 58:7 58:12 58:15 58:18 58:19 61:6 74:13 78:15 95:7 95:21 98:15 109:18 110:7 110:13 110:25 111:4 111:14 112:1 112:6 112:12 112:17 113:1 113:3 113:11 113:15 113:23 114:23 115:9 129:25 130:7 130:20 130:24 131:8 138:8 140:15 141:13 142:21 143:23 145:24 146:2 146:10 149:13 160:24 161:2 162:17 163:10 169:20 169:22 172:17 174:7 174:10 174:12 178:19 179:2 governing pi 170:10 Government pj 37:23 government pi 37:17 118:3 36:12 38:22 40:12 42:13 44:10 44:19 governmental [6] 36:18 36:2v 36:23 37:1 37:5 38:4 graduate pi 54:5 GRAY pi 195:22 196:21 great p2] 10:4 13:9 42:1 43:21 77:25 123:9 140:3 145:4 148:21 149:1 170:5 186:17 greater pi 97:16 ground pi 159:12 group pi 40:22 54:7 79:1 79:4 80:10 15:20 77:20 79:12 Grove pi 14:6 15:15 16:18 guess po] 7:12 7:15 7:19 8:19 9:20 10:3 16:5 19:14 21:2 21:11 22:6 25:1 26:4 32:12 34:17 35:15 35:22 67:11 68:2 70:13 73:4 74:15 104:25 112:22 127:18 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 8 APRIL 20, 2001 142:1 153:6 156:7 160:1 160:6 guideline p] 60:10 173:5 heads pj Health pj 30:5 30:9 36:10 73:8 5:11 30:2 34:22 126:19 136:10 -H- health p4j 6:17 42:1 43:25 45:9 habits 1] 100:13 47:1 47:21 49:15 half p4] 9:19 9:24 49:23 51:19 53:10 17:11 25:3 27:4 58:20 97:6 115 24 39:24 40:2 40:5 125:13 125:16 139 17 48:23 49:7 49:18 167:2 167:9 173 15 67:12 67:18 67:21 174:14 180:22 181 1 half-time pj 6:25 7:14 hand p] 193:17 HANDED [4] 25:17 30:24 31:3 65:13 handled p] 126:4 Hans [6] 156:25 157:2 157:4 158:3 158:6 162:3 182:14 182:17 183 4 183:6 183:8 183 9 183:11 183:13 187 11 187:21 187:25 188: T heard pj 29:8 75:6 144:6 heart in 134:23 heatp] 145:3 HEIRS ti] 195:2 happening p] 182:24 ' 194:3 happy [i] 134:24 hard p2] 15:1 49:25 78:10 78:20 56:20 92:1 167:12 Help [1] 34:8 84:4 88:14 89:6 94:12 95:14 142:21 155:6 186:3 harmful pj 48:9 49:15 49:22 62:12 111:6 174:14 190:2 190:3 harming pj 125:13 125:15 helppj 5:19 helper p] 61:17 hereby pj 194:10 193:3 104:22 196:14 140:21 188:12 HAROLD pi 194:3 195:3 HAYS p] 195:8 Hays [4] 13:20 15:14 16:5 16:6 hazard [27] 48:20 53:1 57:6 57:11 58:23 59:4 47:21 56:16 57:17 70:1 188:10 ] 45:10 84:24 95:15 103:11 105 105:14 105:18 105 108:6 122:20 123 87:13 87:14 88:18 91:22 70:16 71:6 71:17 71:19 71:25 72:16 121:24 122:5 138:18 139:16 143:17 177:22 178:2 178:9 178:21 180:8 186:24 hazardous [6] 47:10 51:22 60:12 116:2 48:5 187:5 187:15 17:20 177:13 139:22 159:16 121:15 138:2 121:20 Hazards p] 138:24 hazards ps] 51:19 60:25 61:3 71:15 137:5 137:23 138:10 138:21 139:3 139:12 139:20 140:8 140:16 141:16 143:13 165:6 165:21 177:9 181:9 181:24 182:14 184:7 184:18 184:22 185:2 186:10 188:11 189:7 head p] 11:15 96:15 167:25 38:23 33:22 33:25 91:1 169:1 77:3 75:11 9:6 91:17 121:19 33:17 26:4 159:18 90:9 154:9 77:14 guideline - inform CLARK VS. UNION PACIFIC, ET AL hopefully in 161:5 73:7 73:13 73:17 includes [3] 29:12 hospital PI hotel [1] hour [4] 5:23 56:18 91:24 hours [15) 6:23 24:9 64:17 67:12 67:22 68:2 68:16 115:5 47:8 168:13 56:18 6:19 24:14 67:18 68:3 118:9 73:20 74:4 74:24 80:6 83:6 84:11 84:15 86:12 96:2 96:22 98:14 103:25 104:11 104:13 104:20 104:20 107:4 107:12 110:3 111:18 118:7 119:11 126:13 129:6 130:18 136:2 137:7 141:18 143:6 143:20 41:10 194:25 including p] 93:11 increase p] 142:16 increased p4] 78:18 79:4 79:13 79:18 79:24 80:7 96:12 119:23 123:20 126:13 134:10 142:24 143:11 147:5 133:5 171:14 145:13 145:14 149:12 increasing m 102:7 household [2| 90:4 91:17 Houston [5] 123:10 123:13 123:16 123:19 195:9 HOWARD 12] 194:3 195:3 humans pi 83:5 hundred [i] 77:17 150:25 152:21 155:6 156:12 156:17 164:25 165:9 166:7 166:18 170:25 171:24 172:7 173:5 179:7 184:16 186:3 186:5 189:25 191:11 191:16 I don't recall [8] 85:10 99:21 106:17 107:18 127:21 171:1 116:24 India p] 32:11 83:11 106:16 indicate m 64:14 72:22 78:5 80:13 119:4 143:17 149:7 indicated p] 70:19 72:19 83:25 indicates p] 83:19 hurtp] 17:13 190:17 191:2 indicating p] 25:10 hydrocarbons p\ 8:9 8:20 Hygiene ini 27:1 27:22 33:4 33:17 34:3 34:6 34:11 34:13 26:13 29:24 33:21 34:8 135:7 hygiene [ioi 6:16 6:20 7:3 7:20 28:1 40:23 73:10 127:22 178:14 181:4 I don't remember pj indication [i6] 71:8 11:1 30:22 37:7 112:10 113:19 114:2 37:8 66:19 70:22 128:1 128:23 144:6 76:3 150:2 146:19 146:23 151:10 idea pi 9:23 62:11 64:17 83:16 90:14 155:16 155:23 178:24 179:11 180:3 180:9 123:3 171:25 180:17 indications p] 174:25 184:3 individual [9] 19:5 identifiable pi 105:25 35:17 62:2 73:15 identify pi 81:15 135:24 167:19 93:25 96:4 111:2 163:5 177:17 Hygienist [6] 27:23 28:5 51:15 51:24 64:22 64:25 hygienist p| 174:13 hygienist's(2| 174:8 174:11 Hygienists [5] 36:13 identity pi 193:14 Idiopathic pj 104:13 idiopathic pj 83:16 104:2 104:3 104:4 104:7 ignored pi 61:20 II [2] 180:23 181:1 INDIVIDUALLY pj 195:2 Individually pi 194:2 individuals p] 32:21 90:25 98:11 indoor [i] 35:2 38:23 40:12 42:14 53:18 hygienists [6i 41:3 41:16 118:18 146:20 146:23 181:7 Hygienists' pi 44:11 44:19 Illinois pi 10:23 Illnesses pi 33:12 illnesses pi 141:25 imagination pi 81:2 imagine pi 173:22 Industrial [26] 26:12 27:1 27:22 27:23 28:4 29:24 33:4 33:17 33:21 34:2 34:5 34:8 34:11 34:13 36:12 38:23 40:12 42:13 44:11 44:19 51:15 51:24 hypothetical pi immaterial p] 138:4 53:18 64:22 64:24 55:10 immediately pi 135:7 Hypothetically pi 50:18 industrial poi 6:16 124:10 implement pi 145:17 6:20 7:3 7:20 hypothetically pi 176:19 -I- I can't recall PI implemented pi 190:22 191:9 important p] 170:1 182:18 impress p] 73:22 28:1 41:3 41:16 51:25 73:10 110:24 118:18 127:22 146:19 146:23 174:8 174:10 174:13 178:14 181:3 181:7 76:3 190:20 impression p] 74:18 I can't remember pi 157:22 157:25 11:20 30:25 inches p] 108:6 industries p] 53:12 industry pj 32:25 78:2 108:22 110:21 I don't know Pi 1 include pj 106:2 153:11 170:19 180:15 20:11 20:22 21:3 21:21 OVO 00.03 114:19 included po] 18:1 180:19 influence p] 81:21 24:16 29:4 33:23 38:17 47:11 56:3 60:22 63:8 67:23 28:19 28:25 37:7 54:6 54:9 54:15 55:21 67:15 100:9 influenced p] 81:22 inform p] 139:8 138:9 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 9 APRIL 20, 2001 information - Lemen VOLUME 1, JOHN A. PENDERGRASS, CIH, 6ny\fE S. CLARK VS. UNION PACIFIC, ET AL information [36] 43:9 52:19 53:19 55:2 59:20 62:7 80:1 82:3 82:4 82:12 92:10 144:5 149:6 160:8 161:23 176:25 177:18 179:8 181:4 181:7 181:9 181:11 181:24 182:1 182:8 182:11 182:14 182:21 183:2 183:6 183:13 183:19 184:9 188:10 188:12 194:23 informed rsj 38:25 135:25 139:3 139:12 139:19 informing [i] 140:16 inhale m 149:1 injured [4] 17:13 19:6 19:8 19:12 Injuries m 33:11 injuries p] 9:3 141:20 inopportune [ij 17:20 inside [4] 113:3 121:16 123:6 124:1 inspector [i] 132:10 install 1] 117:12 installation pi] 48:23 49:19 113:20 113:24 114:9 114:17 114:18 114:20 114:24 119:8 120:12 installed po] 44:24 111:25 112:14 112:18 113:4 113:12 118:1 118:5 118:14 118:24 120:16 120:18 120:20 120:21 124:12 125:8 139:7 139:10 139:11 139:21 installing p] 46:23 46:24 117:6 121:14 121:24 122:4 148:3 148:11 Institute pi 29:5 29:7 31:22 31:24 32:7 32:16 32:19 32:24 Institute's [i] 126:24 institutes [i] 32:5 instrument [i] 193:14 insulate pi 145:5 insulated e>] 46:15 56:5 78:22 144:21 144:24 144:25 145:8 145:11 145:13 insulating pi 47:2 55:13 112:7 116:23 152:2 152:7 154:12 insulation [53] 44:25 46:21 46:24 47:7 85:24 93:9 111:15 111:16 111:17 111:23 112:13 112:18 112:20 113:4 113:12 114:10 114:10 114:24 115:15 116:22 118:14 118:24 119:9 120:6 120:16 121:1 121:2 121:15 124:18 125:12 131:3 131:19 138:7 139:7 139:10 139:20 140:5 140:6 142:18 144:3 144:9 144:10 144:13 144:17 144:22 145:6 146:4 146:12 146:24 152:10 152:20 180:2 190:15 insulator [4] 49:17 49:20 49:21 148:23 insulators [i2] 76:13 76:20 76:24 77:8 77:19 112:7 117:12 122:17 122:21 122:23 123:6 123:21 Insurance [i] 151:9 insurance [6] 18:20 18:21 19:19 19:19 19:22 151:24 intellectual pj 117:9 intended pi 54:14 68:21' 142:4 interest PI 43:24 166:3 interested pj 41:4 195:15 interesting p] 144:23 159:5 International m 30:8 interpret [ij 82:15 interpreting m 82:11 interrupt [ij 77:2 interview [i] 81:2 interviewed pi 80:20 80:23 inverse [ij 57:14 investigate m 174:21 investigation pj 178:20 179:4 179:15 invoices pj 23:3 23:10 involve [l] 78:21 involved m 9:3 10:14 19:22 28:14 44:24 110:16 153:8 irresponsible pi 188:5 188:6 ISBELL p] 195:21 196:20 Isbell pi 194:9 isolate p] 129:16 129:8 Isolated m 106:17 isolated [4] 107:9 129:4 129:19 129:20 isolating [i] 129:10 1 isolation pi 129:1 129:23 Israel pj 14:10 14:12 15:16 15:18 16:23 20:15 issue [18] Og.'l') 38:11 60:24 61:3 63:14 63:17 77:10 92:15 117:21 146:15 156:11 156:14 156:22 157:5 161:20 162:9 162:25 179:20 issued pi 132:20 132:13 issues p] 142:5 142:7 187:11 issuing [i] 119:6 itself [4] 71:19 138:12 138:15 149:21 -J- JAMAm 101:4 Jenkins pj 14:4 14:6 15:15 16:18 job [23] 31:12 32:6 48:17 49:18 49:25 70:21 70:23 78:11 78:21 79:11 131:13 131:25 132:4 139:24 140:11 148:21 149:1 149:4 149:13 177:24 178:4 190:11 190:13 job-related m 141:20 jobs [11 142:16 jobsite m 53:1 JOHN pi 193:2 193:6 193:12 194:7 194:11 Journal [io] 26:13 27:2 29:25 30:3 30:5 30:15 30:17 30:21 33:7 189:2 journal m 30:18 journals [i| 29:21 judge pi 159:15 judges [ii 32:11 judging pi 60:11 judgment pi 110:2 128:8 149:10 159:8 JUDICIALm 194:6 -K- Kansas pi 11:19 11:21 11:21 11:23 12:10 15:7 keep [i2i 13:4 13:10 13:12 14:25 22:9 22:11 51:16 55:5 57:4 111:10 115:4 133:10 keeping pi 172:23 171:5 kept [3J 52:1 52:13 171:19 Kershaw pj 149:25 149:25 150:5 killed pi 9:5 kind [lij 16:2 21:12 31:14 78:10 115:7 142:9 186:3 5:6 22:9 94:12 155:6 Kirk PI 14:7 14:8 knew [si 20:23 53:17 71:24 154:5 171:24 knowable (si 164:17 164:21 180:11 180:18 183:24 knowing pi 41:14 173:20 knowledge [19] 26:2 44:1 54:1 55:24 56:7 64:15 70:20 71:9 71:14 75:11 76:23 82:2 84:1 100:5 102:8 134:10 151:3 160:22 161:13 knowledgeable [ij 17:24 known poi 45:8 45:12 45:13 45:14 53:12 69:10 73:9 96:24 104:17 105:10 106:12 106:19 106:20 108:20 111:8 111:11 151:5 151:18 151:21 152:2 152:15 153:4 153:20 154:2 154:12 154:20 165:2 186:2 191:13 193:12 Koons pi 14:17 15:21 17:6 Kucera [121 71:7 71:15 72:4 72:7 72:15 72:18 177:21 178:1 70:17 72:1 72:9 177:19 Kucera's [11 72:13 -L- labeled [ij 138:13 labels [5] 174:15 174:19 175:13 175:15 176:9 Labor [6] 30:15 30:17 30:21 31:1 36:8 36:8 labor [i] 30:18 laborer m 80:9 laborers [i] 80:7 lacked pi 159:6 laid pi 172:24 191:3 landp] 17:17 Lanza pi 151:8 151:7 large [4j 115:19 131:3 144:9 179:24 laryngeal [i] 92:20 Last p] 23:25 24:9 161:22 last p2] 8:10 8:11 9:20 21:19 2i:23 21:25 22:7 23:18 24:5 24:13 24:20 24:21 25:6 40:8 66:22 66:23 66:25 67:7 67:9 67:10 67:14 72:4 73:6 88:5 133:23 134:12 161:21 162:2 162:4 162:7 162:11 162:12 lasted [ij 67:12 late [6] 45:25 70:24 71:6 71:15 72:17 110:16 lately m 22:23 launder pi 130:20 130:25 laundered pj 130:16 131:4 Law [11] 30:17 30:21 31:8 31:22 32:7 32:16 32:24 30:15 31:4 31:24 32:19 law [26] 13:13 13:15 14:1 15:13 15:19 15:21 17:6 51:6 55:16 57:7 57:7 57:8 66:1 87:16 148:22 149:11 149:12 170:18 172:6 172:7 172:9 172:12 172:24 173:10 173:24 174:11 Lawn [ii 195:4 laws [io] 32:2 32:14 50:25 51:4 51:16 52:1 53:2 54:18 54:22 170:10 lawyer [i] 148:9 lawyers PI layout pi 30:19 82:5 lead [s] 8:8 8:20 10:14 10:16 18:12 leads [ij 160:22 learn pi 81:19 55:16 learned [1] 161:4 least [6] 37:22 46:22 53:22 54:2 98:2 98:3 lectured pi 27:11 28:22 lectures m 29:3 left pi 37:14 37:19 56:21 88:19 89:3 128:9 128:22 152:22 legal p] 48:21 51:11 187:19 legitimately pj 63:25 64:3 legs [1] 5:24 Lemen [4] 72:24 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 10 APRIL 20, 2001 length - midnight VOLUME 1, JOHN A. PENDERGRASS, CIH, S. CLARK VS. UNION PACIFIC, ET AL 73:1 73:5 73:11 length [4] 48:17 60:2 97:13 189:20 Lessen 21:4 less [11] 9:19 17:10 20:21 20:24 21:5 21:23 21:24 21:25 22:2 78:3 152:19 letter [i] 101:6 level p9] 42:14 47:10 53:20 55:6 56:14 78:25 86:8 86:10 87:4 87:8 87:10 87:15 87:16 87:17 88:4 88:11 96:17 96:21 96:23 97:11 105:2 107:5 114:15 114:16 118:9 138:2 171:16 190:2 190:5 levels psj 38:16 40:3 45:17 51:22 59:4 61:14 62:8 80:2 80:2 93:9 96:24 103:24 103:25 104:9 105:4 105:18 105:18 105:19 106:6 110:8 114:7 114:11 114:16 118:15 123:4 134:3 159:7 160:10 171:2 171:5 171:19 172:5 172:23 176:12 176:21 190:15 190:18 190:19 Life [i] 151:9 lifetime pi 48:13 118:10 133:6 Light [5] 12:24 12:25 14:21 15:9 15:9 light p] 51:2 116:16 lighting [i] 116:7 likely [4] 56:1 64:19 145:1 175:9 limit [is] 39:4 39:6 39:11 39:22 40:20 50:15 50:17 54:12 56:14 105:8 116:5 116:8 132:22 132:25 171:20 limited M 160:4 Limits [i] 38:14 limits [9] 39:7 40:21 41:1 41:23 58:21 122:7 122:15 133:5 160:13 LINEm 192:2 line p] 8:5 26:12 linking [1] 84:8 list [is] 13:4 15:1 22:15 23:1 23:6 26:17 26:20 41:1 41:7 41:15 65:2 171:3 13:8 22:22 26:9 26:23 41:8 65:6 listed p] 29:21 29:11 listening [ij 59:8 lists [2] 22:25 26:10 literature [44] 29:17 60:19 60:24 61:22 62:4 62:16 63:1 63:6 63:16 63:20 64:3 64:6 64:23 64:25 65:3 65:15 65:16 75:22 76:7 92:14 96:20 97:18 98:19 98:25 100:17 100:17 101:17 102:19 103:1 107:14 107:22 117:20 117:24 119:7 135:2 135:23 136:13 149:15 150:18 161:20 162:8 163:24 190:4 190:14 litigation psj 7:18 7:22 8:3 9:12 10:9 10:16 10:25 11:6 12:1 12:8 13:16 15:6 23:11. 23:15 23:23 24:1 24:22 25:4 7:7 8:1 9:22 10:20 11:9 13:11 20:7 23:20 24:19 25:7 litigation-related pj 24:4 24:14 livem i07:i lived [2] 6:7 34:19 Living [il 156:5 lobbying [i] 32:17 localpj 110:19 125:23 location [1] 69:14 longer pj 116:10 37:15 look [6] 35:7 35:11 139:13 160:18 167:18 170:8 looked [5] loom 127:24 143:21 160:3 169:10 looking [3] 6:10 93:16 160:9 Lord [11 164:19 lose [2] 145:3 168:18 lost LI] 168:19 Louis [l] 14:16 Louisiana [i] 17:15 L0W[1] 103:24 low [11] 61:13 84:20 84:25 85:19 90:17 90:22 103:24 104:8 105:19 117:17 134:3 lower [5] 39:22 123:24 123:25 187:5 187:6 lumped [ij 54:io lunch [1] 92:3 Lungp] 98:17 154:14 154:15 lung [52] 85:12 92:23 92:25 93:1 93:5 93:8 93:12 93:19 94:2 94:5 94:8 94:9 94:15 94:19 94:20 94:25 95:2 95:12 95:16 95:18 95:23 96:1 96:3 96:12 96:18 97:7 97:12 97:16 97:19 98:4 98:19 98:25 99:7 99:15 99:19 99:25 100:3 100:18 100:22 100:24 101:4 101:11 101:17 102:11 102:18 102:20 153:20 154:3 154:13 154:21 164:22 lungs [4] 106:3 107:11 115:24 151:3 -M- machinery m 55:14 magnitude m 99:5 majority 1121 7:25 10:4 23:25 24:7 24:18 25:7 52:5 174:5 7:23 3O .OO 24:15 43:14 makes pj 63:25 90:22 124:5 124:15 man p] 70:18 73:20 Management [i i 33:4 management m 70:5 Manager [4] 176:24 177:1 177:7 191:12 manager (i) 182:22 manages m 32:12 manipulated pi 47:19 47:20 manipulating [4] 47:24 108:12 108:16 109:3 manner pi 7:11 47:20 manufacture [i i 152:20 manufactured pi 152:5 152:8 manufacturer 1141 109:6 109:16 110:23 111:21 151:4 151:17 152:1 152:14 153:3 153:19 154:1 154:11 154:19 173:18 manufacturers pi 153:14 188:10 188:14 manufacturing pi 46:5 78:1 108:18 110:10 111:17 151:22 mark hi 25:18 163:2 168:3 168:3 MARKED [2] 25:20 169:6 market [ij 46:7 168:23 25:21 Martin [8] 14:1 14:3 14:6 14:8 16:19 13:23 14:4 15:15 mastic m 120:19 material [i2j 41:25 42:6 42:20 45:18 55:25 67:13 67:14 104:21 152:11 154:18 155:2 185:17 materials pi 65:25 70:2 78:22 124:19 127:25 171:3 matter PI 38:23 53:18 102:7 112:9 120:8 137:2 179:19 183:8 183:9 matters pi 24:5 187:21 188:2 May pi 194:16 194:18 195:19 may po] 7:19 8:6 8:7 19:25 26:14 28:19 39:23 47:11 55:4 55:4 57:10 69:16 77:12 85:16 85:18 87:21 87:22 96:3 102:9 104:21 109:3 110:25 111:20 115:21 143:19 164:24 166:4 170:15 179:8 179:9 McCONN [I] 195:8 McConn p] 13:20 15:14 16:6 mean pi] 8:15 26:14 27:16 43:10 46:13 58:22 63:8 63:12 71:9 74:3 77:1 77:9 106:20 108:16 111:25 161:6 161:24 163:10 177:5 182:22 187:8 meaning m 89:14 means pi 12:12 104:14 107:25 136:3 meant m 155:20 measure [ij 127:13 media m 189:7 medical pi] 63:16 63:20 97:18 98:18 98:24 100:17 100:17 101:17 102:19 103:1 107:22 108:4 117:20 117:23 135:22 136:13 150:18 157:14 161:20 163:24 164:5 meet pi 66:14 66:16 67:3 67:9 67:19 68:5 68:12 meeting pj 67:21 68:9 meetings m 29:1 member [i2j 36:11 37:4 37:10 37:13 37:21 38:5 165:4 165:20 165:24 166:4 166:14 184:15 members [8] 36:21 71:24 90:8 90:25 91:17 166:16 166:19 183:25 membership p] 32:20 36:17 37:19 menm 117:6 mentioned [s] 18:12 81:25 92:17 98:23 185:5 mercy in 72:12 merged in 8i:ii Meriwether pj 77:23 107:15 110:16 110:17 150:12 153:9 158:25 159:2 Meriwether's ui 97:2 merry-go-round p] 104:10 104:25 mesothelioma [51] 78:15 83:5 83:9 83:13 83:17 83:24 84:3 84:7 84:8 84:12 84:18 84:21 84:25 85:3 85:5 85:14 85:17 85:21 85:25 86:4 86:10 86:16 86:20 86:22 87:22 90:4 90:8 90:23 90:25 91:16 103:2 103:4 103:7 103:12 103:14 103:18 104:3 104:5 104:9 104:16 105:9 105:11 105:15 105:17 105:23 105:24 106:2 106:7 106:19 106:20 107:6 mesotheliomas pj 91:18 104:7 Mesquite p] 195:23 196:22 messed PI 119:12 35:19 met pi 66:21 66:23 67:7 67:8 67:9 67:11 67:17 68:7 68:8 Metropolitan m 151:9 metropolitan [i] 160:6 Mid pj 106:16 107:9 mid pi] 43:22 54:5 151:15 155:3 155:5 165:3 170:16 172:1 180:20 180:23 188:18 mid-1930s pj 151:20 152:12 midnight [i] 158:7 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 11 APRIL 20, 2001 Might - one VOLUME 1, JOHN A. PENDERGRASS, CIH, S. CLARK VS. UNION PACIFIC, ET AL Might 1] 131:22 104:17 might [48] 7:6 8:8 8:8 8:9 13:3 30:23 36:9 42:19 55:7 56:13 59:12 59:12 71:10 78:8 79:20 82:24 82:24 89:17 109:14 111:8 113:8 113:9 116:14 116:14 117:2 119:2 121:22 125:25 129:21 131:22 132:18 133:1 133:1 140:1 140:10 140:11 142:16 150:7 151:2 152:21 154:4 154:22 155:2 155:3 158:7 165:1 176:1 185:17 million [12] 39:10 39:20 54:4 54:13 55:11 55:25 59:5 59:16 109:12 116:8 116:10 171:6 mills [1] 111:8 Most p] 52:21 57:3 134:17 most [is] 41:11 44:23 57:8 60:24 62:6 76:10 86:21 93:12 107:1 115:22 156:2 156-10 157:1 157:4 15/:14 mostly [4] 27:25 40:22 117:16 156:16 mouth [i] 57:23 move pj 170:6 6:10 moved m 34:17 Murray [ij 150:3 must pj 28:14 33:23 40:1 94:5 103:16 105:7 105:22 138:17 -N- mind [8] 19:1 87:10 101:15 101:19 111:10 115:4 137:11 170:13 Miners m 78:3 miners [2] 78:6 77:24 mining [4] 43:7 45:13 46:2 108:17 minor pj 169:20 141:25 minuscule m 149:8 minute m 91:3 minutes m 5:23 missing m 35:8 misspoke m 106:22 name [22] 11:14 11:20 14:2 14:3 69:14 70:18 83:15 98:22 99:13 117:19 117:23 118:3 150:2 150:9 158:21 162:15 163:5 163:13 164:15 184:17 185:11 193:14 named [i] 15:16 names [4] 14:5 14:19 34:9 69:21 narrow [ij 41:18 National pi 126:23 183:25 184:5 184:10 184:15 189:4 189:5 nearly [3] 45:17 78:6 78:7 misunderstood m 72:8 mixed m 88:12 Mobile p] 6:6 6:9 34:18 molding m 113:7 moment m 15:23 money pj 164:8 32:9 monitor [i3] 110:8 111:1 111:14 112:1 112:13 112:17 113:3 113:11 113:20 113:23 150:19 155:11 155:18 monitored m 109:7 127:20 128:13 149:16 165:5 165:20 166:3 monitoring [9] 109:19 113:8 114:25 115:11 118:12 118:25 128:20 155:20 163:24 necessarily [22] 57:7 58:22 76:11 94:7 96:6 101:20 108:25 110:11 116:6 116:19 124:7 126:17 130:2 130:22 135:15 137:21 156:23 157:11 167:21 175:20 175:24 175:25 necessary [9] 113:6 125:15 126:18 133:10 135:18 167:9 175:4 187:16 187:24 necessity [n 93:17 need [is] 5:9 5:19 5:25 46:25 47:16 47:25 57:10 96:11 110:20 120:11 122:8 128:2 139:25 165:15 167:11 181:16 needed P] 59:20 89:17 110:2 month [i] 149:2 negatives iu 112:10 moot p] 88:21 48:25 negligent p] 179:16 179:21 180:4 morning pj 66:1 Neither [1] 65:6 neither [2j 98:15 195:11 Nelly pi 149:25 149:25 150:4 Nepal m 83:ii never mi 27:8 28:22 38:13 57:25 106:24 123:6 131:15 132:5 173:13 174:10 179:21 New[9] 44:6 93:11 123:11 123:13 123:14 160:5 189:2 189:4 189:4 new [91 82:4 87:23 133:22 133:25 134:13 134:16 148:25 156:15 159:11 next [21 34:21 142:9 nicem 163:2 night [81 67:7 67:9 67:10 67:15 68:7 68:8 68:9 68:13 nil [lj 56:16 ninem 7:15 NIOSHpi 73:9 136:10 188:6 NIOSH'SHI 188:1 Nobody [11 146:18 nonasbestos m 140:5 nonasbestos-containing [1] 186:14 noncompliance [i i 58:23 Nonepi 158:8 121:17 nonepi i43:ii nonresponsivepii 42:9 42:24 52:10 59:1 65:9 89:1 89:20 110:5 124:21 172:20 179:1 nonsmokers m 95:9 nonuse [i] 81:12 y'for[i| 184:24 nor [8] 45:18 143:16 144:6 184:24 184:24 184:24 184:25 195:12 Vormal [i| 32:5 normal pi 63:24 121:23 175:6 NOTARY [i] 193:21 notem 167:13 noted [i] 193:3 notes [i| 177:25 nothing [4| 88:24 140:20 170:4 179:12 notice pi 179:3 69:25 noticed m 144:24 Now [14] 56:7 56:10 69:21 87:20 94:11 101:24 104:10 107:4 120:3 120:5 121:2 143:19 167:1 183:1 now [4ii 6:20 6:25 7:12 7:24 7:25 11:14 14:24 15:11 15:18 15:22 16:6 19:2 23:22 24:10 29:14 29:15 30:22 30:25 55:1 65:11 76:3 83:15 87:21 91:24 106:17 111:10 111:21 112:9 112:19 137:11 158:9 158:22 162:20 163:5 163:10 164:16 167:17 170:2 178:10 184:25 191:18 Nowinski [i] 169:8 NUECES [i] 194:4 number cuj 33:25 41:11 55:2 60:10 76:9 83:18 85:3 93:10 108:7 123:1 130:3 133:22 165:13 170:24 nurse [4| 141:6 141:14 141:19 142:2 -o- Oak [u 195:4 oath pi 92:6 193:12 obey in 51:1 Object [131 42:9 42:24 48:24 58:25 65:8 89:1 89:20 110:5 124:21 130:1 165:17 179:1 190:25 object pi 91:13 52:10 Objection [66] 41:9 41:24 42:16 43:4 43:20 44:12 44:21 49:9 51:8 52:3 52:8 52:16 53:7 54:24 55:19 61:5 77:6 106:8 108:14 109:20 112:3 113:13 119:18 124:13 125:4 125:10 127:16 128:5 128:14 134:21 144:12 145:20 149:5 152:17 155:13 158:13 165:7 165:22 166:25 170:21 171:9 171:22 172:14 172:19 173:2 173:11 174:2 174:23 176:13 177:2 179:6 180:13 181:5 181:13 181:18 182:3 182:16 183:7 183:14 183:21 184:2 186:11 186:21 190:7 190:23 191:15 objection [ij 91:12 obligation [4] 51:3 56:11 155:11 156:1 obtain [i] 82:19 Obviously p] 8:4 145:14 187:17 obviously [10J 24:15 76:20 77:11 106:23 141:19-160:25 '61:6 171:15 172:17 `7:12 occasion [1] 59:19 occasions [i] 37: n Occupational is] 30:5 30:9 33:11 34:22 36:10 occupational [6] 6:17 43:25 45:9 105:10 180:21 181:1 occur [i6] 62:9 64:19 94:25 95:17 95:19 98:4 103:18 105:9 134:5 175:9 56:1 65:7 95:18 103:7 105:23 182:25 occurred pi 20:4 94:10 95:4 150:22 195:18 occurrence pj 60:4 60:4 occurring pi 97:16 151:3 occurs [11 Off [8] 8:23 17:16 56:21 138:6 163:2 189:20 11:14 120:13 177:5 offer p] 73:24 74:16 offering m 5:2 offhand p] 8:25 158:8 office [ij 193:17 officer [5] 49:12 133:2 194:12 194:24 196:3 officer' S[l] 196:9 often [4] 48:18 49:13 61:13 115:14 old [2] 120:13 142:17 Once [4] 79:20 174:19 174:24 190:10 once pj 100:9 115:3 162:19 One pi 13:23 169:15 one [87] 9:3 9:13 9:14 11:18 11:19 13:24 15:10 15:24 18:16 20:9 20:12 22:19 22:24 26:16 28:2 28:25 30:10 33:14 40:24 50:2 51:11 54:6 56:17 60:3 62:11 71:12 75:15 9:4 11:2 12:23 15:20 18:16 21:7 26:15 28:14 32:12 49:14 53:13 59:22 62:20 75:20 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 12 APRIL 20, 2001 one-fiber - pipe VOLUME 1, JOHN A. PENDERGRASS, CIH, SI^ME S CLARK VS. UNION PACIFIC, ET AL 76:2 76:15 77:20 80:4 81:24 83:11 83:25 86:2 86:5 92:11 96:10 98:15 101:16 101:18 102:4 102:12 103:4 104:14 116:4 119:10 119:24 124:5 127:9 127:18 127:24 131:14 132:1 138:14 141:8 149:1 152:24 156:12 160:1 169:10 169:13 170:3 176:21 181:14 181:22 181:23 181:24 182:23 185:4 185:5 186:1 190:12 one-fiber pi 157:25 one-time p] 59:18 ones [6] 19:1 99:2 115:20 154:8 189:23 190:2 open pi 123:17 123:19 181:6 operation pi 79:25 110:3 operations pi 125:23 126:1 operator [i] 148:4 opine pi 82:20 63:17 opinion [96] 36:15 43:5 45:3 45:24 45:25 46:20 46:23 47:15 47:19 48:7 49:3 49:23 50:5 50:5 50:9 50:21 51:5 51:24 52:11 52:24 57:10 61:10 64:20 69:9 69:24 70:5 73:11 73:18 76:16 78:18 80:4 81:21 81:23 82:2 83:8 85:13 86:23 86:24 87:4 87:15 88:3 90:24 91:16 91:16 91:21 92:11 92:19 92:21 92:22 94:4 96:10 105:22 110:6 112:5 115:9 116:1 116:21 117:4 117:11 117:20 117:24 118:4 118:23 119:15 120:15 121:14 122:2 123:5 124:5 126:20 126:24 128:10 128:15 128:18 139:18 140:14 140:23 141:16 142:10 143:10 143:10 143:12 146:16 146:22 147:6 147:7 151:17 152:23 161:19 169:14 172:13 172:25 179:13 179:19 180:6 181:2 opinions [i3] 5:1 54:16 73:23 74:7 74:11 74:16 80:22 81:17 82:19 93:25 157:13 157:20 157:23 opportunity pi 151:23 opposed [1] 123:11 opposite [l] 105:12 oraI[i] 194:13 order [i3] 6:22 11:4 23:17 24:11 25:5 39:17 61:13 67:24 68:16 114:13 117:16 153:12 154:16 Organics [lj 30: ll organization pj 31:25 36:16 40:20 Organization's [ij 126:20 organizations [s] 31:11 32:22 40:23 164:4 182:7 origin pi 40:18 original [si 168:16 188:4 196:2 196:6 196:10 OSHA[23] 31:15 37:19 45:23 46:1 48:16 88:23 89:23 118:8 118:18 118:21 119:1' 119:2 128:12 131:21 132:8 132:10 132:25 133:4 134:8 136:5 187:9 187:18 191:13 OSHA's [5] 187:2 187:4 187:10 187:21 188:4 otherwise pi 128:22 180:10 195:14 outcome [1] 195:15 outdoor [4J 116:23 129:22 131:18 190:16 Outdoors [3] 112:24 112:25 115:2 outdoors [10] 113:12 113:21 113:25 114:10 115:11 117:5 118:6 118:14 118:24 119:9 Outside [11] 103:23 117:13 118:1 121:7 121:25 124:1 125:20 129:8 129:18 175:10 190:18 outstanding m 31:12 156:12 overexposed pi 172:16 172:17 overexposure pj 46:11 135:19 overly [l] 133:16 overprotective pi 89:17 overprotectiveness [l] 133:19 overreact pi 186:25 own [8] 61:11 74:7 108:2 110:2 151:24 166:5 181:11 183:15 owner [u 69:23 owners [6] 69:24 140:24 142:10 142:11 145:15 155:10 P.C[i] 195:4 P.M [4] 92:1 167:12 167:12 191:19 PACIFIC [2| 194:5 195:6 PAGE[1] 192:2 page PI 44:6 196:5 paper pi 31:9 63:9 63:13 100:7 100:19 102:12 151:10 151:13 185:6 papers [6] 75:25 153:24 157:21 159:4 184:11 185:3 pardon [l] 125:3 parent [ii 181:22 Part[i| 142:15 part poi 14:1 14:3 18:1 18:4 27:20 27:24 36:4 38:13 38:14 39:7 46:10 49:25 55:22 56:5 56:25 57:2 72:4 73:3 82:1 83:11 85:23 116:22 126:16 132:4 135:13 139:16 139:24 143:20 145:12 147:9 part-time pi 35:22 141:6 142:1 142:3 participants m 166:5 particles psi 39:10 39:20 54:4 54:13 55:11 55:25 59:6 59:16 60:6 109:13 115:18 115:19 116:9 116:11 116:15 171:6 particular pi 53:12 55:24 56:2 106:11 110:3 157:21 166:2 particularly hi 43:22 78:1 78:5 108:25 parties pi 194:25 195:12 196:14 partners m 15:20 party m 194:19 passage m 170:17 passed m 116:11 past PI 14:14 23:7 26:18 34:1 76:22 77:17 121:25 patient in 150:4 Patty [51 135:6 136:22 136:24 137:3 137:13 pay [3] 118:19 137:15 164:8 PE [51 193:2 193:6 193:12 194:7 194:12 peak PI 132:19 132:21 peer PI 29:25 30:3 30:6 30:9 30:15 31:5 33:15 peer-reviewed pi 29:17 29:21 30:13 33:6 33:10 33:12 33:19 65:3 PEL [11 132:25 PENDERGRASS [si 193:2 193:6 193:12 194:7 194:11 Pendergrass [6] 6:4 25:21 35:10 35:12 92:2 167:14 pending [i i 6:2 Penelecpi 12:23 Pennsylvania pi 12:23 15:8 People in 55:2 people [7ii 7:8 17:13 19:3 19:8 19:12 20:1 36:6 36:17 41 :11 43:7 45:8 45:13 45:14 45:16 47r:21 48:10 58:2 70:3 70:4 71:23 76 31 77:20 78:1 84:1 85:3 86:21 87:11 87:20 88:13 93:9 93:18 95:10 96:18 96:23 97:5 97:22 97:25 98:1 100:13 101:16 104:8 105:10 105:13 105:16 105:17 105:18 105:19 105:24 106:2 106:23 106:25 109:2 118. .7 118:2C 131:19 132:1 133:22 135:9 135:13 135:15 138:17 143:7 143:19 147:16 155:24 160:23 163:1 165:2 166:5 187:9 189:3 people's pi 97:6 125:13 125:15 per [301 39:10 39:19 39:20 39:24 39:25 40:4 40:5 40:6 54:4 54:13 55:11 55:25 59:6 59:16 60:2 87:9 87:18 88:3 88:8 88:10 88:20 89:4 109:13 116:9 116:11 118:9 119:10 119:13 171:6 171:14 percent pi 138:14 41:12 percentage [5] 23:19 24:3 59:17 59:23 140:12 perfectly p] 146:7 perhaps w 27:21 28:17 43:6 137:15 period [in 37:4 41:6 60:1 66:18 69:3 69:5 69:6 69:15 88:13 90:18 95:16 96:17 97:12 140:2 143:22 156:8 159:14 periods [2] 96:5 45:10 permissible [s] 49:5 57:19 132:25 133:4 160:13 170:10 Perry pi 15:25 person m 56:10 61:16 83:16 131:13 156:18 189:18 193:14 PERSONALm 195:2 Personal pi 194:2 personal pi 141:24 personally [4i 73:14 74:24 135:11 193:12 personnel pi 164:3 pertinence pj 116:13 Peter pj 169:8 petro pj 184:19 184:23 185:2 Phelps [ii 15:10 Philadelphia [5] 14:10 14:18 14:18 14:19 15:17 physician [S] 141:7 142:1 142:3 157:15 162:16 physicians pi 33:15 pick[l] 147:12 PICKERING 195:8 Pickering pi 13:21 15:15 16:6 picking [ii 106:22 piece [4] 48:22 49:7 49:14 117:23 pieces pi 49:18 pin [2] 104:15 155:6 pinpoint pi 74:17 76:15 Pipe[l] 121:4 pipe [54] 46:6 47:18 47:20 47:25 48:22 49:7 49:18 111:15 111:16 111:17 111:23 112:7 112:19 113:24 114:10 114:19 114:24 115:11 115:14 116:22 116:23 117:5 117:10 117:12 117:25 118:4 118:13 118:24 119:8 119:16 119:19 119:21 120:2 121:5 121:15 121:25 122:4 124:3 124:8 124: L2 125:6 125:8 126:6 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 13 APRIL 20, 2001 pipefitters - quasi-federal VOLUME 1, JOHN A. PENDERGRASS, CIH, (EWVfJK S. CLARK VS. UNION PACIFIC, ET AL 130:9 139:20 151:5 151:18 152:10 153:19 154:2 176:5 176:18 190:5 190:8 pipefitters [sj 78:13 78:18 79:2 79:7 79:14 pipes [5] 46:15 46:21 46:25 55:13 111:25 Pittsburgh p] 14:18 place [ii] 47:15 47:16 50:11 50:13 120:5 120:7 144:1 6:10 49:1 77:12 120:12 places 1] 28:11 PLAINTIFF [i] 195:2 plaintiff (7j 8:6 9:12 9:13 9:17 10:17 10:18 18:11 PLAINTIFFS [2] 196:7 196:10 plaintiffs [8] 16:11 16:14 16:19 17:3 17:7 17:10 18:16 18:24 Plaintiffs' [i] 167:15 plant [42] 7:7 47:8 65:23 65:24 66:22 67:4 67:5 67:6 67:25 68:3 68:6 68:13 69:23 69:25 70:3 70:5 71:7 71:14 71:21 72:23 80:24 81:7 81:20 82:5 127:9 127:9 127:10 128:3 128:11 128:11 132:11 141:2 141:7 141:17 142:14 143:18 144:18 144:24 145:7 145:12 145:16 191:10 plants [s] 7:19 109:18 124:12 125:9 148:9 plot [1] 17:17 pneumoconioses pi 54:11 pneumoconiosis [i] 54:6 point [to] 28:15 29:2 68:17 81:9 96:9 137:7 139:15 158:20 169:23 175:17 policies [1] 144:1 Pontiac [49] 69:10 69:13 69:17 69:19 69:23 70:15 71:5 71:14 71:24 80:18 80:21 127:3 127:4 127:6 127:6 128:11 128:25 130:16 140:4 140:24 141:15 142:3 142:11 142:23 144:1 145:15 146:3 155:10 164:6 165:13 174:17 174:20 174:21 175:15 175:18 175:21 176:11 176:18 177:8 178:7 178:17 179:14 179:20 180:3 184:14 186:9 186:20 191:8 191:13 Pontiac's [2j 143: li 180:7 poor [4] 112:11 113:20 114:2 122:11 population in 107:10 portion [ii 59:1 pose [11 47:21 position [9J 165:24 166:10 166:21 166:22 173:13 186:24 187:4 187:15 187:18 positions [S] 38:11 187:2 187:10 187:21 188:1 positive [ii 31:1 possible (ill 51:19 63:4 104:6 106:5 117:3 140:14 151:11 176:4 177:14 183:18 188:8- possibly p] 57:4 178:11 potential pij 51:21 70:1 70:16 71:6 71:19 71:25 115:24 117:18 126:14 135:10 138:21 141:16 143:17 147:16 165:6 165:21 177:22 178:2 178:9 178:21 179:4 potentially m 69:11 120:16 practice [32] 31:21 42:11 57:20 57:25 58:7 58:15 58:16 58:18 58:19 111:1 111:4 111:14 112:6 112:11 112:13 113:1 113:3 113:15 113:20 114:2 121:23 137:16 140:1 148:21 171:25 172:18 174:8 174:10 174:12 174:25 175:10 183:16 practices [27] 18:2 18:3 58:5 58:12 108:24 109:18 110:7 110:13 112:1 112:17 113:11 113:23 114:23 115:10 129:25 130:7 130:20 130:24 131:8 134:10 138:9 140:15 145:25 146:3 146:11 178:19 179:2 practicing p] 41:3 145:21 145:23 precautions m 47:25 48:3 48:9 125:14 135:18 145:17 175:4 preclude [ii 119:5 preparepi 65:20 prepared p] 88:22 preparing m 196:10 present [ioj 34:16 35:15 36:23 50:21 68:21 76:22 77:11 80:24 117:18 122:5 present-day [i 1 79:22 presented pi ! 00:3 153:24 presenting in 48:20 president pi 34:2 34:5 presidents [11 34:1 Pretty [ij 6:24 pretty pi 7:16 13:18 19:20 79:6 98:17 102:2 157:23 169:20 prevalent pi 42:4 prevent pi 135:18 125:15 PREVIOUS [5 1 53:6 59:11 91:8 124:23 181:17 previously pi 20:10 34:9 primarily [4] 33:14 78:14 93:6 114:6 primary pj 45:18 54:8 79:11 probabilities m 109:22 probability [si 52:18 56:15 97:16 140:13 140:19 probable m 185:19 problem psi 52:18 58:8 70:6 72:21 72:23 79:22 110:18 111:9 115:25 117:18 118:11 142:14 146:20 146:25 148:18 148:19 159:9 168:22 178:25 179:4 179:5 179:11 179:15 179:16 179:21 problems pi 134:23 159:17 proceeding [i 195:13 proceedings [ij 189:3 process p] 101:21 110:10 151:23 processing pi 43:7 45:14 108:17 producem 22-15 produced pi 169:8 producing m 89:8 product pi 56:2 138:12 products psi 41:21 46:6 46:9 54:18 55:3 81:12 81:13 109:17 126:9 126:12 126:15 126:21 126:25 152:15 154:20 174:16 174:20 174:22 175:14 175:19 175:22 178:17 186:14 188:10 188:15 profession [s] 73:4 73:6 154:5 173:13 178:14 Professional [i] 17:23 professional [3] 34:15 36:16 73:10 Professionally [i] 73:2 professionally [4] 73:3 73:12 73:15 73:19 professionals PI 43:25 45:9 60:11 professions [ij 100:4 program p>] 141:5 175:18 190:22 191:3 191:4 191:9 programs p] 180:22 181:1 project pi 162:19 148:25 projects [i] 32:4 promulgate pj 40:12 53:23 89:23 promulgated 4] 38:22 39:1 48:5 53:24 prone [i] 186:25 pronounce [ij 70:18 properly p] 59:7 properties (ij 42:21 proposal pi 31:10 31:13 proposition m 64:12 protect [i8i 54:14 55:20 56:8 56:22 56:25 87:11 88:24 135:13 135:21 138:22 167:9 172:8 173:15 175:4 181:11 186:9 186:20 187:24 protected [4] 47:5 143:8 180:5 180:7 protecting [4] 53:10 55:7 88:25 180:4 protection pi 89:16 115:12 119:1 126:1 protective m 48:6 88:2 88:9 109:13 133:14 133:16 187:5 proved [ij 193:12 proven pi 102:11 provide p] 31:10 provided pj 20:4 40:20 44:2 65:23 66:6 71:13 71:22 89:16 148:6 provides p] 157:23 PUBLIC [l] 193:21 Public PJ 30:2 73:8 136:10 public pj 134:3 183:4 183:8 publication pi] 29:13 29:17 30:10 33:3 33:6 33:12 33:14 33:19 39:6 40:19 44:9 50:19 103:3 135:5 136:22 136:22 136:24 137:3 151:8 153:25 169:22 Publications pi 26:6 26:12 publications poj 26:9 29:20 32:3 33:2 61:25 63:3 164:14 165:5 165:20 188:21 publicity pi 44:2 publish pj 54:3 published [40] 26:10 26:11 26:18 27:1 27:6 27:8 29:10 29:11 29:14 30:20 31:7 41:15 43:23 45:23 48:14 48:16 60:19 60:23 61:7 63:13 100:17 102:20 102:24 103:5 103:6 103:9 110:17 117:19 117:23 119:7 137:11 153:24 161:20 162:9 162:11 163:13 165:9 184:17 184:22 188:24 publishing [6] 40:25 101:17 163:15 163:16 163:16 184:11 pull [2] 94:12 163:8 purchased p] 17:16 purpose p] 40:17 104:25 purposes p] 193:15 pursuant pj 194:23 195:16 put [13] 30:18 53:20 57:23 74:5 79:14 94:22 97:15 98:22 109:9 120:19 122:12 144:18 186:3 putting PJ 188:14 120:10 -0- qualified [sj 17:21 82:13 82:20 83:1 142:18 quality PI quarrels pi 38:19 35:2 38:15 quasi-federal [ij 37:12 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 14 APRIL 20, 2001 questionable pi 157:18 157:20 questions [ioi 5:1 5:8 5:17 47:12 51:11 58:8 63:11 91:14 100:8 148:15 quickly pi 186:13 quite [ui 6:8 24:12 61:13 73:25 74:4 74:6 88:1 106:9 155:20 159:22 160:21 161:15 quitting m 148:21 quote [2] 87:23 83:12 -R- radiation pi 84:13 Railroad p] 11:20 11:22 railroad hi 11:21 12:10 12:10 15:8 railroads pi 11:19 raising pj 51:10 rare hi 42:5 51:23 111:12 111:12 rate pi 49:20 122:20 123:20 134:19 134:20 rather pi 32:9 64:22 81:12 150:23 189:24 raw [5] 109:6 109:17 110:9 152:11 154:17 RDRpi 194:9 195:21 196:20 reaching p] 52:22 reaction pj 137:5 READ pi 53:6 59:11 91:8 124:23 181:17 read p4j 53:5 59:9 63:9 63:10 63:13 72:4 74:11 74:25 75:6 75:8 75:12 75:14 75:15 82:18 91:6 124:22 143:16 157:22 169:11 177:14 177:25 180:9 181:15 193:2 reading hi 91:11 96:20 141:1 189:3 real pi 117:7 149:7 161:22 really p<si 10:2 18:5 21:8 22:10 27:3 28:9 38:19 40:14 44:14 62:8 73:13 74:19 75:19 76:22 78:15 84:15 89:13 93:8 97:10 111:4 122:12 124:5 124:15 136:16 153:23 154:9 156:15 156:17 157:15 159:3 159:7 160:1 160:3 163:8 164:1 181:19 REASON m 192:2 reason [i9] 6:1 18:5 43:5 43:8 43:15 44:25 45:19 46:3 53:2 56:12 69:25 83:20 139 155:17 155:23 161 165:11 165:12 176 reasonable [i7j 41 20 42:10 42:18 43 1 43:11 44:9 44 17 45:3 51:25 52 4 52:12 108:10 109:7 109:9 173:25 185:12 185:22 reasonably pi 57:16 190:21 reasons p) 196:5 rebuilt [i] 81: ll received p] 179:8 receives m 189:18 recent m 144:8 RECESS [3] 56:20 92:1 167:12 recognition pj 3l:ll 31:14 recognized [l] 149:20 recommendation pi 146:9 record [i7] 5:12 5:17 12:22 13:12 22:9 35:18 58:10 162:5 168:3 168:6 195:1 5.io 12:5 15:3 57:24 167:16 194:13 records w 13:10 22:11 71:12 97:6 educed pi 87:8 134:2 efer [ij 127:3 references [i] 189:6 eferencing p 106:14 107:8 eferring p] 71:20 118:12 177:19 76:15 124:2 124:11 125:7 163:23 164:2 164:3 185:4 191:14 efiner y 142) 19:7 55:12 55:15 68:21 69:10 69:13 75:24 76:1 76:4 76:8 76:11 116:24 125:19 125:20 127:3 129:22 131:18 131:18 138:7 138:8 139:6 139:9 140:4 148:2 148:11 164:2 164:6 165:11 165:12 166:10 166:17 166:23 167:6 173:8 180:11 180:14 180:14 180:15 180:16 185:7 185:25 190:21 refining pi 180:18 185:12 185:22 reflect in 5:12 Refractories m 11:17 refractories pi 152:19 154:24 refractory pi 152:15 154:20 regard psj 20:3 44:14 51:6 55:24 66:17 81:3 133:19 163:25 173:10 187:1 50:11 51:19 63:17 68:24 90:14 140:3 167:4 173:25 188:5 50:23 55:3 63:20 69:4 133:16 141:3 170:13 178:15 190:24 regarded [t j 71:18 Regarding pi 184:6 184:7 regarding [21 61:7 65:1 regardless m 182:11 regular [i] 116:7 regulating m 134:8 regulation m 45:23 50:13 50:14 58:15 58:24 114:7 134:9 Regulations hi 66:3 66:8 168:6 169:18 regulations hh 17:25 47:3 47-4 49:1 49:2 49:1 49:6 49:10 50: 50:2 50:7 50: 10 50:12 50:23 51 1 52:14 57:1 57:!3 57:4 57:9 57: 12 57:18 57:20 57:25 58:2 58:4 58:7 58:12 58:20 66:2 66:10 66:11 77:12 117:17 118:20 131:11 131:21 133:9 138:16 155:7 155:9 rejected hi 29:18 relate pi 97:8 related [ui 23:23 24:1 24:23 25:7 77:5 87:3 195:12 8:1 24:19 64:1 104:7 relates [i] 184: is relating pi 84:12 relationship m 84:16 85:16 85:17 86:2 86:12 101:2 101:14 102:17 relatively pi 79:10 83:19 84:24 85:11 90:17 105:14 105:18 released ui U5:i8 relevant pi 59:22 PJJTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 questionable - reviewing CLARK VS. UNION PACIFIC, ET AL 81:17 reluctance [l] 154:10 rely pi 57:5 64:11 64:2 L 64:24 83:8 86:19 86:24 115:8 169:13 16:23 17:3 17:6 18:15 required hi 38:4 128:4 185:13 185:22 requirement [ij 36:22 remember [12] 5:15 10:8 11:8 14:14 14:24 16:2 19:13 21:16 22:20 30:20 31:7 151:14 removal pi 129:ll 129:24 130:8 remove iioi 48:7 48:19 130:2 131:6 131:19 144:9 144:15 146:3 146:12 186:15 removed [ioi 129:3 129:16 129:17 129:18 129:21 140:7 140:17 144:14 145:16 148:17 removing p2] 130:5 130:11 131:2 132:12 142:17 143:7 145:5 145:6 146:23 148:3 148:12 179:24 repair [i i 144:15 repeat ui 156:16 requirements p] 171:1 191:2 195:16 Research [i] 29:5 research pj 32:4 32:12 164:5 177:8 177:11 reside [ij 6:5 RESOURCES p] 194:5 195:6 respect pj 74:7 74:13 188:1 respected pi 73:15 respects [i] 141:3 respirable pi ii5:20 115:22 respirator [] 48:23 49:8 148:6 148:13 175:18 176:6 respirators [6] 118:25 132:12 145:17 146:4 146:13 146:25 repeated hi 90:19 132:5 136:23 173:3 repetition pi 60:2 91:14 respiratory pi 80:2 125:25 190:22 191:2 191:9 responding [ii 7:9 rephrase pi 181:16 responsibility hi 181:19 27:24 51:18 70:19 replace [i] 186:16 replaced [i] 144: ll report [8] 43:23 44:15 97:8 97:19 98:18 107:13 149:17 164:24 reported hi 75:23 76:3 98:2 149:14 REPORTER [ii 72:6 88:23 responsible [6i 53:9 173:18 182:13 183:5 183:12 183:20 responsiveness [ij 165:18 restrictive [i] 187:15 result p] 60:21 103:12 150:9 resulted ui 9:3 Reporter pi 31:4 31:8 reporter pi 5:io 168:9 REPORTER'S [ii 194:7 REPORTING p) 195:22 196:21 reporting [i] 159:3 reports [9i 76:5 76:6 76:9 83:14 84:7 86:19 86:24 87:1 107:16 results [4] 63:23 123:9 retained [ij retired pi return pi returned pi 196:4 196:6 review [i4] 63:9 63:12 63:19 65:14 70:12 71:3 81:20 83:1 135:22 61:12 123:22 11:9 157:8 194:17 196:2 63:6 63:16 66:1 75:22 102:25 REPRESENTATIVE [il 195:2 Representative [i] 194:2 representative [i] 72:20 representing m 13:14 16:11 16:14 reviewed [ipj 30:3 30:6 30:15 31:5 41:7 65:22 66:6 66:7 67:18 70:2 169:15 177:8 reviewing [i] 29:25 30:9 33:15 66:2 67:14 164:13 184:4 67:12 Index Page 15 APRIL 20, 2001 VOLUME 1, JOHN A. PENDERGRASS, CIH, revision - son S. CLARK VS. UNION PACIFIC, ET AL revision [i] 90:1 revisions m 29:18 RICE [i] 195:8 Rice pi 13:20 15:15 16:6 Richard m 72:24 Right pi] 5:18 8:2 16:7 16:9 16:24 17:15 25:8 27:18 35:21 35:24 36:3 66:5 88:7 92:7 93:3 105:6 122:1 139:23 147:22 150:12 168:17 right [so] 5:5 8:23 11:14 15:2 15:11 15:22 16:6 19:1 19:2 25:23 29:14 29:15 30:22 34:23 34:24 36:9 50:18 56:24 59:24 65:11 76:3 94:21 95:1 98:8 98:13 102:9 105:3 106:17 122:17 122:19 139:11 139:19 144:22 145:9 146:8 147:14 158:9 158:22 162:20 163:5 163:9 164:15 168:4 169:4 169:5 170:2 174:3 177:23 178:3 178:5 rightfully [i] 106:23 risk [27] 60:20 61:23 62:4 62:17 63:22 64:4 64:12 64:21 69:11 76:17 76:25 77:4 77:17 78:3 78:18 79:5 79:13 79:18 79:24 80:7 96:12 116:24 117:7 119:23 142:24 143:12 147:5 risks p] 135:3 135:25 136:14 road [2] 9:6 18:6 Roggli [4] 156:19 156:21 162:12 163:15 Roggli' SP] 157:9 157:20 163:17 role p] 68:23 69:1 room [i] 103:22 Rouge [i] 16:1 routine [4] 59:19 60:4 146:17 175:7 RULEm 196:1 Rule [2] 195:16 196:13 rulem 187:13 rules [1] 37:20 run [i] 53:4 RUTLEDGE [2] 195:22 196:21 rutledge@airmail.net [2] 195:25 196:24 -S- S [41 194:2 194:21 195:2 195:7 safe [i6] 10:4 18:1 18:3 42:14 52:22 87:4 87:16 88:3 88:10 S.:i5 133:10 176:12 176:21 189:13 189:17 189:21 safely m 116:22 117:12 117:25 118:5 118:14 126:4 174:22 Safety [14] 17:23 30:6 30:9 36:10 164:3 176:24 177:1 177:7 183:25 184:5 184:10 184:15 189:4 191:12 safety [i4] 27:21 29:1 53:10 70:4 72:10 72:19 167:2 167:5 177:24 6:17 43:25 70:19 141:5 167:9 sample PI 110:3 112:6. 128:4 sampled [i] 109:8 Sampling [i] 30:11 sampling [isj 61:12 107:13 107:21 107:25 108:11 108:23 108:25 109:3 109:15 114:12 117:15 119:3 128:2 128:8 132:18 samplings m 114:5 Sandler m 162:16 saw pi 10:22 20:11 48:22 49:6 49:18 49:21 132:11 136:24 137:3 sawed [i] 49:14 says [isj 26:12 33:2 34:16 61:22 62:4 64:3 74:1 74:3 99:21 102:1 102:23 119:8 128:19 157:12 157:24 182:21 school p] 54:5 47:8 Schrade pj 195:22 196:22 Science [1] 189:5 scientific p7] 60:19 60:24 61:22 61:25 62:3 62:16 62:24 63:1 63:19 63:22 64:2 64:6 64:23 64:25 65:15 76:7 83:2 90:11 96:20 101:21 102:8 135:2 135:23 150:18 187:20 187:23 190:4 scientifically [si 64:7 86:23 161:25 162:8 188:2 scientists [2] 160:24 161:2 seal [1] 193:17 second PI 25:16 91:11 160:2 Secretary pi 36:8 88:23 section m 26:6 See [ij 35:9 see [24] 11:16 25:15 26:11 30:22 35:11 41:18 45:24 65:10 69:22 82:23 93:24 95:22 109:5 116:4 116:13 116:17 116:19 124:15 134:17 134:20 143:3 156:15 173:12 180:3 seeing [5i 62:20 81:4 99:21 127:21 133:24 seek pi 43:8 54:17 181:10 seeking m 177:17 seem pi 90:21 87:24 seldom m 102:24 Selikoff [23] 44:3 44:8 44:16 76:14 85:24 93:7 97:5 97:22 99:1 99:5 99:25 100:7 122:16 123:7 123:18 153:21 154:8 156:8 158:14 158:18 163:16 163:17 188:21 Selikoff's i7] 43:22 44:15 95:13 97:1 102:12 122:23 123:6 selling [i] 56:10 semi-retired pi 6:14 6:18 7:14 semi-retirement 121 6:11 34:18 Semian PI 84:10 84:8 seminars pj 32:4 32:10 32:23 send pi 169:1 169:2 sense pj 33:9 33:7 sent [i] 29:18 separate pi 39:21 88:17 95:14 108:3 129:8 separated m 97:21 separately m 131:5 separation m 95:8 serious PI 98:16 98:17 100:8 served [ij 196:14 Service PI 34:23 34:25 36:1 36:5 73:8 136:10 service [i] 41:2 SERVICES pi 195:22 196:21 Set [3] 39:9 171:20 173:22 setting pi 190:16 51:25 settled [u 12:17 seven [5] 14:19 24:20 24:21 25:3 25:6 Severalm , 39:13 22:4 (several hi 33:24 54:25 117:14 181:21 shake [ij 5:11 shaking m 96:15 shaky m 157:23 share pi 181:3 182:1 182:14 183:5 183:13 shared [i] 183:19 shares pj 118:4 117:20 sharing pi 182: H 181:6 Shell pi 11:18 12:9 15:7 shipm 112:20 shipbuilding [i] 93:11 shipyard pi 76:14 109:23 shipyards pj 123:2 160:5 160:6 shock [i] 56:8 short p] 90:18 79:10 shortly pi 66:20 72:19 151:1 show [9] 71:14 71:23 83:23 84:18 86:9 86:15 86:19 190:L8 190:19 showed [i] 42:3 showing pi 85:21 shown pi 196:14 84:24 Side [I] 157:14 sign [I] 87:16 SIGNATURE HI 192:1 Signature [i] 196:4 signature pj 193:3 194:17 signed pj 87:7 50:2 significance [ij 170:5 significant [i] 46:16 signing [i] 88:1 silicone m 54:8 silicosis p] 151:1 150:22 Similar [i] 31:15 similar p] 68:10 114:11 174:5 simply [5] 101:22 104:8 142:13 179:16 187:6 single pj 63:13 -6:20 sister pj 181:2 181:8 181:23 Sit [5] 12:19 19:2 163:12 163:20 173:19 situation [5] 13:19 61:17 100:15 116:2 120:14 situations p] 52:21 104:15 182:10 Six [5] 14:19 24:20 24:21 25:3 25:6 Size [4] 60:5 60:6 115:18 116:15 slightly [i] 150:14 small [4] 83:19 85:11 127:9 141:7 Smith [i] 195:8 smoke [4] 93:20 95:12 97:20 98:5 smoked m 93:13 smokers [i] 95:8 smoking [pj 93:23 94:12 94:16 94:20 95:20 95:25 97:9 97:15 97:17 97:23 99:12 100:10 100:12 SOld[l] 174:17 solved pj 159:9 110:18 someone pj 48:22 49:6 70:14 110:8 114:23 115:10 118:23 119:20 Sometime [5] 10:10 10:21 152:12 153:15 153:16 sometime [9] 10:19 37:9 38:7 70:24 71:6 72:16 151:19 153:22 188:18 Sometimes [i] 22:14 sometimes pi 11:16 149:13 168:20 somewhat p] 97:6 Somewhere pj 11:4 39:17 somewhere [i6] 10:11 67:24 105:20 106:16 106:25 107:9 107:18 114:13 122:11 143:20 149:9 151:16 152:13 153:12 154:16 164:20 SOn [10] 31:10 31:17 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 16 APRIL 20, 2001 son's - threshold VOLUME 1, JOHN A. PENDERGRASS, CIH, S. CLARK VS. UNION PACIFIC, ET AL 31:19 147:21 147:23 147:23 148:1 148:8 148:9 148:20 son's [l] 32:6 sorry[hj 12:3 60:14 72:3 72:8 77:7 111:20 115:15 119:12 155:19 162:19 163:18 Sort (7] 6:10 46:7 88:12 96:7 102:24 132:13 164:6 SOrtS [4] 7:3 8:3 9:2 110:23 sought [9] 41:22 42:12 43:12 43:18 44:18 45:5 41:7 43:2 44:10 sound [4] 84:22 157:12 178:3 178:5 soundly [i] 62:23 sources pi 57:6 55:3 space pi 145:4 121:16 spaces [i] 123:3 speak m 34:14 speaking tu 124:10 Specific [2j 129:6 65:17 specific [ioi 8:5 45:7 78:9 81:24 157:19 171:1 7:5 65:15 111:18 188:20 specifically [ioi 18:3 19:16 28:13 37:3 80:1 83:15 86:15 137:1 185:4 191:6 specified pj 140:5 speed [i] 58:21 spelled [1] 48:4 spend [i] 24:14 spent [4] 7:22 23:19 24:4 25:4 spray-on p] 126:9 126:12 St [1] 14:16 stack [i] 108:5 standard ps] 39:1 39:9 39:12 53:23 53:24 54:3 55:11 87:8 88:6 88:20 88:21 89:3 89:8 89:12 89:23 118:8 119:5 128:6 128:7 128:12 128:20 128:24 136:3 136:4 136:5 136:18 138:18 139:16 140:25 142:12 145:19 170:18 171:8 191:1 191:7 standardize p] 40:24 standards [20] 38:21 40:9 40:13 40:17 41:8 42:12 43:2 43:12 43:19 44:11 44:20 45:5 48:5 48:11 48:13 48:15 133:15 133:19 191:6 191:13 standpoint [9i 42:2 174:9 174:11 182:17 183:5 183:12 187:19 187:20 187:23 stands m 156:18 Star pi 31:15 Start [6] 23:2 45:6 77:19 120:3 124:18 161:8 started pi 24:24 69:16 69:17 71:7 72:5 72:11 90:2 152:5 starting pj 25:2 109:23 STATE [2] 193:22 193:9 State pi 32:9 55:10 194:10 state psj 40:22 50:6 50:17 50:22 52:1 52:13 53:3 55:12 55:17 56:13 68:24 69:3 69:4 102:10 172:4 172:6 172:7 172:9 172:12 172:22 172:24 173:10 173:23 173:24 174:11 statement p] 95:23 96:8 133:12 188:4 statements [i] 136:10 States [4] 66:4 66:8 168:7 169:18 states w 50:14 50:14 62:16 128:6 stating pi 60:19 63:21 101:13 Stay [2] 57:1 57:2 Stick [I] 24:6 sticks [i] 170:13 still [13] 9:25 22:22 37:18 40:10 48:15 81:9 83:19 84:2 92:6 117:5 148:8 161:11 163:16 still-living [i] 34:1 stirred m 102:13 Stopp] 77:1 strange pj 189:24 Street pi 195:8 189:2 stretch pi 81:2 5:24 strict pi 37:24 striking pj 116:16 stringent pi 133:9 strong [i] 63:11 strongly m 136:9 structure pj 181:3 students pi 27:16 studied pi 98:21 studies [42j 62:14 77:22 77:22 78:5 78:15 82:14 82:19 83:2 83:22 84:15 84:18 85:21 85:22 85:23 86:9 86:14 93:7 93:7 97:1 97:2 97:19 97:21 99:1 99:4 99:6 100:4 100:23 107:10 107:17 108:3 108:4 108:6 109:11 109:11 110:16 118:12 150:10 153:22 153:23 154:6 154:8 190:17 study [32] 53:24 76:14 82:21 82:23 83:10 83:25 84:1 84:5 95:13 96:24 98:4 98:22 100:19 104:24 106:9 106:11 106:13 106:15 107:8 108:20 108:21 109:12 118:2 119:11 122:17 122:18 122:23 123:6 123:19 159:25 160:2 161:17 studying pj 153:11 153:10 Stuff PI 167:22 style-producing m 46:2 subject [9| 27:6 27:8 27:11 27:15 75:4 155:15 156:3 158:2 158:11 subjects pi 165:10 27:25 submitted pi 29:13 29:16 194:15 subscribed pi 193:14 subsidiaries pi 181:22 181:23 181:25 182:1 182:9 182:15 183:6 183:13 substance pi 86:15 substances pi 41:6 83:4 substantively PI 74:11 74:15 successful pi 35:3 such [i9] 26:23 41:15 50:23 61:24 76:24 80:11 90:5 118:2 119:11 131:2 140:18 142:17 145:17 147:17 147:17 147:17 147:17 149:13 164:4 sufficient m 94:5 sugar [i] 54:9 suggest [i] 124:17 suggested [21 109:25 178:14 suing [i] 18:17 Suite p] 195:9 195:5 summer pi 148:2 support pi 115:8 supports pi 117:24 suppose pi 50:9 122:10 141:20 supposed pj 172:25 182:24 Surely pi 17:21 surprise pi 97:7 Surprisingly p) 77:24 suspect pi 136:9 137:10 143:8 165:1 switching pi 111:22 sworn [i] 194:12 synergism p] 93:14 93:21 synergistic pi 94:14 systems pj 35:2 -T- taking [S] 120:13 149:3 175:3 tank [2] 31:25 Tansey [41 80:25 81:6 taught pi Teach pi teach pj 28:6 147:9 teaching pi 147:8 18:2 165:14 32:5 80:24 81:16 27:14 28:7 27:20 28:12 teams p] 164:5 tear pi 144:21 tear-out p] 144:3 144:7 190:15 tease pi 93:25 teaspoon pi 149:1 tech [11 46:2 technically pi 187:6 techniques pj 109:24 130:4 161:18 technology p] 187:8 Telephone p] 195:23 196:23 Ten [1] 23:12 ten [16] 21:4 21:5 21:23 21:24 23:17 23:18 25:2 32:8 108:5 161:21 161:22 162:2 162:4 162:7 162:11 162:12 tendered pi 167:14 tends [i] 157:25 Tennessee pj 37:11 37:14 term p] 64:5 testified [6] 12:1 12:7 12:11 13:5 19:8 72:15 testify PI 22:15 11:9 testifying [4] 11:12 19:12 19:20 19:25 testimony p4i 17:22 21:1 22:16 23:7 42:25 65:21 70:13 71:23 74:13 75:7 99:24 167:24 194:14 194:24 testing PJ 176:11 tests p] 131:2 Texaco [5] 11:24 12:9 185:7 11:18 15:7 TEXAS [1] 194:4 Texas [in 125:20 170:9 171:4 171:12 171:16 171:17 171:20 172:1 172:4 172:23 173:5 173:9 173:23 195:5 195:9 195:23 196:22 textile pj 76:12 77:21 77:21 78:1 108:22 110:21 111:8 themselves p] 135:21 138:22 186:2 theory 2] 157:25 86:6 therefor pi 196:5 therefore pj 37:13 145:4 155:25 therein Pi 193:15 they've PI 21:13 47:3 144:21 thinking pj 28:18 93:6 thorough [4] 63:5 63:8 63:12 63:16 thought [i3j 19:9 43:8 98:7 102:13 123:22 124:14 135:12 136:15 142:16 146:18 150:5 158:16 163:8 Three [4] 14:5 27:3 68:2 68:3 three [8] 6:8 6:21 14:17 21:11 34:19 40:3 97:10 159:9 Threshold p] 38:14 threshold pn 39:4 39:5 39:11 40:20 50:15 50:17 54:12 85:18 86:3 86:7 86:13 103:4 103:6 103:9 103:16 103:17 103:25 104:8 104:11 104:12 105:8 105:22 107:7 116:5 116:8 132:24 171:20 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 17 APRIL 20, 2001 through - ways VOLUME 1, JOHN A. PENDERGRASS, CIH, S. CLARK VS. UNION PACIFIC, ET AL through [161 24:16 29:23 73:3 106:6 109:4 142:23 149:18 151:24 164:17 164:21 168:11 169:11 169:12 177:3 183:2 193:13 throw [lj 95:19 timber [3] 17:16 17:19 18:2 time-weighted pj 171:7 171:13 timecards [l] 147:13 Times pj 189:2 44:6 times [uj 9:16 9:20 9:21 20:25 27:5 39:13 54:25 108:9 114:19 180:6 189:19 titles p] 32:8 32:8 TLVs pj 171:12 170:23 toaster pj 56:4 56:11 today [59] 12:20 15:14 35:20 46:17 46:18 46:20 46:21 46:23 47:15 47:21 47:25 48:21 49:6 52:6 53:20 67:8 76:24 113:21 113:22 114:22 115:10 116:21 117:4 117:25 118:24 121:18 122:16 124:4 124:12 124:19 125:6 125:12 125:16 126:21 126:25 134:7 134:11 134:20 137:9 137:10 138:6 138:23 144:18 148:9 148:10 148:20 159:18 159:19 160:15 160:23 161:8 161:11 161:16 161:18 163:12 163:21 169:9 169:16 186:6 today's [4] 133:8 133:15 133:19 161:13 together p) 40:23 54:10 95:19 tonight p] 158:7 158:23 162:22 tOO [6] 18:9 72:8 95:5 98:17 125:22 143:8 tOOk [9] 70:18 70:21 70:23 72:9 89:11 89:23 141:24 158:6 177:23 tOOl [lj 151:2 tools [l] 160:19 top [2] 9:7 11:15 torn [4] 185:14 185:23 190:6 190:11 Tort [I] 29:7 total [3] 62:1 67:21 85:3 totally [l] 162:14 tour [3] 67:25 80:24 81:20 toured pj 67:5 touring [i] 68:6 toward [1] 157:25 Toxic [2] 30:11 29:7 toxicity [1] 189:16 Toxicology [1] 135:7 trade [i] 77:8 trades [6] 76:16 76:18 77:4 77:12 77:17 78:10 traffic [11 51:2 Trail [2] 196:22 195:22 train [ij 27:25 training pi 18:1 20:3 28:18 transcript pj 194:13 194:15 196:11 TRCP [2] 196:1 195:17 tree [6] 9:5 9:14 17:13 17:20 18:6 19:4 tremendous p] 41:11 tried [5] 24:7 42:17 55:1 91:2 183:22 true [11] 38:7 48:13 48:15 57:15 94:7 103:15 117:8 154:17 182:18 193:3 194:13 try [14] 5:15 22:9 22:24 23:3 24:17 51:4 51:12 58:19 88:16 104:24 147:10 147:25 159:8 176:24 trying [i4] 14:24 35:1 74:15 82:15 94:24 96:19 122:1 122:3 141:12 142:21 143:9 163:8 177:13 185:3 tunnel [i] 122:11 turnp] 112:4 TWO [2] 21:11 195:9 two [27] 6:21 9:4 18:13 18:25 35:5 37:10 37:25 39:24 40:4 53:8 67:12 67:12 67:17 67:17 67:21 68:16 68:16 87:17 88:3 88:5 88:8 88:20 89:4 95:19 133:23 158:18 158:19 two-tenths [5] 39:25 40:6 87:9 88:1 88:6 type [8] 31:25 79:2 147:2 160:9 161:14 189:12 189:14 189:21 (Types m types [7] 8:15 8:16 39:22 45:7 8:14 8:12 32:5 80:12 -u- unable m 63:21 unclear pj 58:10 95:25 UNDER [ll 196:1 Under pi 57:21 110:12 116:7 120:25 under [20] 33.13 49:6 72:21 78:25 92:6 105:23 121:21 121:23 122:3 130:23 140:8 142:19 147:2 155:11 160:4 172:4 174:21 175:6 193:12 193:17 underground m 122:10 understand (221 5:3 8:24 35:18 40:14 50:4 59:2 68:19 69:1 69:6 85:13 91:15 92:6 94:18 114:18 121:17 122:2 127:5 144:17 161:9 167:2 168:21 187:18 understood [ii 155:22 undesirable m 42:23 undue [1] 135:15 unduly [ii 45:1 Unfortunately [ii 96:23 UNION [2] 194:5 195:6 United [4] 66:4 66:8 168:7 169:18 Unknown m 104:14 unknown [i] 104:14 Unless [2| 176:6 46: l unlikely pi 9i:2i 91:22 unlucky pi 9:9 unsafe [i] 189:17 unusual [l] 141:25 up [34] 7:21 15:2 24:17 25:25 35:19 38:16 45:21 57:4 86:3 88:12 88:19 89:2 89:11 102:13 119:4 119:12 122:9 125:18 128:9 128:22 138:5 147:12 149:11 156:25 158:6 158:20 159:22 160:22 162:19 163:19 183:2 185:18 185:20 190:13 UPR [3] 69:20 80:14 80:21 used [17] 41:21 42:11 43:2 55:12 63:24 125:13 137:24 138:7 174:17 174:20 175:10 175:19 175:23 176:1 189:23 190:1 194:19 users [2] 154:17 152:10 USeSflJ 46:21 using [20| 43:6 46:9 47:22 48:23 54:18 54:22 55:3 56:1 6511 78:21 108:13 109:6 110:14 124:8 126:14 146:4 151:22 154:23 155:2 176:6 usually [2] 144:13 5:22 Utility [l] 122:11 utilization pi 44:24 utilize PI 124:3 124:11 130:7 utilized p8] 43: ll 43:18 44:17 44:22 111:16 111:24 111:24 117:25 118:5 137:20 139:4 139:5 150:15 150:19 171:18 175:14 175:18 175:22 utilizing po] 45:3 109:17 110:9 110:23 117:5 118:25 131:7 131:20 146:24 181:25 -V- valid [S] 82:19 86:23 161:25 162:8 162:13 validity pi 83:2 63:11 Valley [2] 37:14 37:12 valuable pi 159:22 160:8 160:21 value [8] 39:4 39:6 39:12 50:17 54:13 55:21 116:8 171:20 values [2] 50:15 40:21 valve [2] 144:22 144:21 valves [2] 145:11 145:7 varies pi 189:16 variety p] 27:25 vary pi 21:7 vast [2] 43:14 174:5 vendors pi 55:4 ventilation [s] 110:19 113:7 121:11 122:11 125:24 venture pj 36:4 version p] 136:23 Victor [2] 156:21 156:19 village pi 106:18 violate [4] 57:20 119:10 140:25 142:12 violated pj U6:9 violating [4] 138:8 140:15 145:18 171:7 violation p7] 57:17 57:25 110:7 110:13 110:25 111:4 111:13 112:1 112:6 112:12 112:16 112:25 113:2 113:10 113:14 113:22 114:4 114:23 115:9 119:4 128:12 128:16 129:24 130:7 130:20 130:24 131:8 131:21 132:14 132:23 133:1 146:10 170:18 173:4 173:9 173:24 174:11 Virginia pi 34:19 virus [2] 84:10 84:8 visible pj 116:8 116:1 visit [2] 66:22 144:24 visited [2] 65:24 65:23 visiting p] L4i:i vitae (3)25:22 25:25 26:3 volume pj 156:7 VS [1] 194:4 -w- wait [4] 5:16 178:20 178:23 179:3 waited pi 179:20 179:14 walk-bypj 61:17 walked p) i32:ii walking p] 68:6 149:8 walks (1) 147:12 Wall [1] 189:2 wander p] 156:9 Warp] 180:23 181:1 warn pj 140:8 143:13 146:11 warned [s] 135:3 136:25 137:4 137:19 137:23 warning pj 138:15 176:19 warnings p] 188:15 warrant pj 152:22 was/was [I] 196:2 Washington pj 31:23 ways [1] 117:15 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 18 APRIL 20, 2001 wear - [sic] VOLUME 1, JOHN A. PENDERGRASS, CIH, Stt^SfE S CLARK VS. UNION PACIFIC, ET AL wear pj 145:17 144:13 wearing [ij 148:13 Website pj 195:24 196:24 week [i2] 6:22 24:10 66:22 66:23 67:2 115:6 131:14 133:5 6:19 24:13 66:25 118:10 weighted m 127:14 Weill pi 157:1 157:2 157:4 158:3 158:15 158:18 163:4 163:14 163:17 Weill's PI 162:10 162:3 West [i] 163:6 west pj 160:7 162:15 wetted [1] wetting PI 185:23 185:13 130:3 whatsoever pi 56:9 89:14 whisper m 182:23 whit pj 124:6 whole [ii] 21:22 24:17 68:15 78:22 88:13 109:14 121:12 132:3 144:6 189:9 189:25 Wichita [i] 37:16 wide [i] 123:17 wife [i] 6:12 wild [ii 21:2 WILMA pi 194:2 195:2 wise p] 58:16 135:9 Within [1] 162:7 within [6] 32:6 162:4 172:24 174:17 174:20 181:3 without [30] 12:17 12:17 48:9 48:19 48:23 49:22 57:6 93:23 95:17 95:18 97:17 97:23 114:24 115:11 116:24 118:14 118:25 125:13 131:6 131:19 132:12 145:5 145:6 146:4 146:6 146:13 146:24 166:4 173:20 186:6 WITNESS [9] 14:5 14:7 14:9 30:24 66:25 67:2 91:6 167:25 168:19 witness [5] 22:14 194:11 194:14 194:16 194:17 WOLCOTT pi] 13:22 14:4 14:6 14:8 25:9 25:12 25:15 41:9 41:24 42:16 43:4 43:20 44:12 44:21 48:24 49:9 51:8 52:3 52:8 52:16 53:7 54:24 55:19 56:17 61:5 65:10 67:1 72:3 72:11 77:6 91:10 91:13 91:25 106:8 108:14 109:20 112:3 113:13 119:18 124:13 125:4 125:10 127:16 128:5 128:14 130:1 134:21 144:12 145:20 149:5 152:17 155:13 158:13 158:24 165:7 165:22 166:25 167:13 167:21 168:8 168:13 168:15 168:22 169:5 170:21 171:9 171:22 172:14 173:2 173:11 174:2 174:23 176:13 177:2 179:6 180:13 181:5 181:13 181:18 182:3 182:16 183:7 183:14 183:21 184:2 186:11 186:21 190:7 190:23 190:25 191:15 Wolcott [91 66:14 66:16- 68:5 68:17 68:20 68:21 169:2 194:21 195:7 women [i] 9:5 word [l] 52:4 words [3] 57:23 57:24 187:5 worem 144:11 worked [i4j 8:7 13:24 36:19 37:11 49:19 72:9 123:1 123:6 127:10 133:22 137:17 142:23 143:19 162:18 worker [6] 59:18 116:21 122:5 139:9 140:8 175:4 worker's [l] 80:12 workers isoi 27:25 53:10 53:16 53:17 55:7 55:21 56:23 57:1 75:24 76:1 76:8 76:11 76:12 76:14 77:21 80:3 85:24 88:24 88:25 90:8 91:17 93:10 93:13 97:20 98:5 108:1 112:2 128:7 133:10 135:24 136:14 136:25 137:4 137:23 138:20 139:2 149:15 150:19 167:10 172:9 173:9 173:15 174:14 180:4 180:4 184:19 184:23 185:2 186:9 187:25 Workplace [4] 66:4 66:9 168:7 169:18 workplace [i3] 43:3 54:23 58:21 60:9 60:11 70:1 108:13 137:5 143:24 170:11 171:6 172:6 174:1 worksites [2| 7:19 54:19 World [3] 126:19 180:23 181:1 world [2| 83:12 32:15 worse [1] 98:14 Wright [2i 76:5 76:1' Wright's [11 185:6 write [it 34:i writer [si 156:3 156:11 156:22 157:5 163:13 writers [2j 158:2 156:13 writing pi 99:18 99:14 writings in 157:10 written [7] 49: io 65:3 88:22 108:8 190:22 191:3 191:6 wrong [2] 169:25 159:20 wrote [i) 99:16 PI 196:24 195 24 -X- Xpi 55:10 55:17 X-ray pi 149:18 149:23 149:24 150:5 X-rays [9] 149:16 150:7 150:8 150:10 150:13 150:15 150:19 155:21 156:1 -Y- year [isi 20:25 21:7 21:10 21:19 21:23 21:25 22:6 23:1 23:25 24:5 24:9 24:13 66:21 85:6 151:4 151:13 153:18 154:19 years [S2| 6:8 7:12 7:13 7:13 7:16 8:11 23:12 23:14 23:17 23:18 24:20 24:21 25:2 25:3 25:6 33:24 34:20 35:5 37:19 37:20 64:18 69:15 73:6 77:17 87:22 87:23 93:10 93:11 115:6 116:11 119:22 123:1 132:8 134:12 134:18 149:19 159:9 161:21 161:22 162:2 162:4 162:7 162:11 162:13 163:15 165:25 166:11 166:23 178:20 178:24 179:3 179:14 vet [3] 29:14 98:5 * 98:12 York pi 44:6 93:11 123:11 123:13 123:14 160:5 189:2 189:4 189:4 yourself pi 62:25 82:9 82:13 82:20 -z- jzeroin 188:7 -Zimmerman pi 14:17 15:21 17:6 zonem 77:13 zone-free [ii 77:13 A [sic] [1] 188:4 RUTLEDGE GRAY REPORTING SERVICES 972.222.4003 * 800.876.3370 * FAX 972.222.6229 Index Page 19 i !?,/; ' VO'tlNE OCCUPATIONAL HEALTH MAN AO John A. Pendergrass, C1H, CSP. PH consul-; ant PLAINTIFFS EXHIBIT \ ,,CIH..CSP,PE I2USA2XQM 1943-1944 T'JLANE UNIVERSITY, no degree 1945-1948 UNIVERSITY OF ALABAMA, 3S Biclogy/Chemistry 1954-1955 UNIVERSITY OF MICHIGAN, MPH (Industrial HygieneJ 19 S 3-present 1994-1996 1989-1998 1936-1989 1964--1936 1979-1986 19 6 4 -- x 3 7 9 1957-1954 1956-1957 1948-1956 1955-1956 1954-1955 1953-1954 195.1-1953 1943-1951 Consultant Mamie, Alabama Director Occupational & Environmental Health Vienna, Virginia President Falls Church, Virginia Assistant Secretary of Labor for Occupational. Safety and Health, Washington, D. C. ?K- COMPANY St. Paul, Minnesota Developed and Managed Industrial Hygiene Profit Centers Corporate Industrial Hygienist to Associate Director Medical Department f Responsible for Industrial Hygiene, Health Physics and Toxicology)' &MfcfiiCM. CYMMJ- Wayne, New Jersey Corporate Staff Industrial Hygienist Wichita, Kansas Industrial Hygienist/Supervise r Clinica 1 Laboratory TENNESSEE VALLEY AUTHORITY. - Muscle Shoals,AL Industrial Hygienist Graduate School Industrial Hygiene Chemist Military Service Biologist (Toxicology^ ' .vjtMPX^-. i/i i'i \! ,'i>; n i.FPU'w'N:-;; ^. !0h6 ?'A_X i'334} '717.0947 1951-1953 1S43--1946 US Navy, Lieutenant O'S Navy, Apprentice Seaman - Ensign AMERICAN INDUSTRIAL HYGIENE ASSOCIATION Member 1955 - present Board of Directors 1967 - 1970 Vice President 1972 President Elect 1973 President 1974 Chairman Institute for Continuing Education Management Committee Occupational Health Standards 1976 - 1979 1979 - 1982 1982 - 1985 BOARD OF CERTIFIED SAFETY PROFESSIONALS Director' 1974 - 1977 AMERICAN BOARD OF INDUSTRIAL HYGIENE Director 1981 - 1987 AMERICAN ACADEMY OF INDUSTRIAL HYGIENE Diplomate 1963 - present Councilor 1985 - 1987 OCCUPATIONAL HEALTH INSTITUTE Director 1976 - 1982 Chairman 1982 - 1983 OCCUPATIONAL HEALTH 4 SAFETY PROGRAMS ACCREDITATION COMMISSION Director 1971 -1976 Chairman 1976 -1977 AMERICAN INDUSTRIAL HYGIENE FOUNDATION Trustee 1996 - present Co-Vice Chairman Endowment Committee 1996-1998 President 1999 - present MEMBER AMERICAN INDUSTRIAL HYGIENE ASSOCIATION 1955 - present HEALTH PHYSICS SOCIETY 1966 - 1986 AMERICAN SOCIETY OF SAFETY ENGINEERS 1985 - present AMERICAN CONFERENCE OF GOVERNMENTAL INDUSTRIAL HYGIENISTS 1986 - 1997 ADMINISTRATIVE CONFERENCE OF THE UNITED STATES 1987 -1989 WHITE HOUSE PUBLIC COMMITTEE FOR LIFE SCIENCES 1987- 1989 U.S. CHAMBER OF COMMERCE LABOR RELATIONS COMMITTEE 1994 - 2000 CERTIFICATIONS AND LICENSES American Board of Industrial Hygiene #517 'Board of Certified Safety Professionals #4 14 Professional Engineer, California #2757 06/28/1363 12/14/1970 01/17/1978 AMERICAN INDUSTRIAL HYGIENE ASSOCIATION JOURNAL AMERICAN PUBLIC HEALTH ASSOCIATION JOURNAL JOURNAL OCCUPATIONAL HEALTH AND SAFETY INTERNATIONAL ENCYCLOPEDIA OF OCCUPATIONAL HEALTH & SAFETY SAMPLING AND ANALYSIS OF TOXIC ORGANICS IN THE ATMOSPHERE ASTM 721 CHAPTER AUTHOR LABOR LAW JOURNAL ENVIRONMENTAL LAW REPORTER INDUSTRIAL HYGIENE MANAGEMENT - CHAPTER CO-AUTHOR OCCUPATIONAL INJURIES AND ILLNESSES - CHAPTER AUTHOR AMERICAN INDUSTRIAL HYGIENE ASSOCIATION HISTORY - CHAPTER - AUTHOR AWARDS AIHA DONALD E. CUMMJNGS MEMORIAL AWARD i9S0 ABIH HENRY F. SMYTH, JR, AWARD 1991 ATHA HONORARY MEMBER 1994 AIHA FELLOW 1994 AIHA YUMA PACIFIC SECTION GEORGE & FLORENCE CLAYTON AWARD 1998 SPECIAL PROJECTS United Stater; Information Agency Occupational Safety lecture tours: 1990 Bracxi and Argentina 1991 Singapore and Hong Kong 1993 India Health and L Peter A, Ncwinski s Chronology of Asbestos Regulation in United States Workplaces STANDARDS The term "regulation" implies an authoritative rule with force of iaw issued, policed, and enforced by government. In this sense, the history of federal regulation of asbestos in workplaces in the United States if relatively brief. For practical purposes, there was none until the Occupational Safety and Health Act became effective on August 27, 1971.'11 The word "standard" connotes a uniform rule set up by established usage which is widely recognized as acceptable, in this context, `o avoid injurious exposure to airborne asbestos dust. Thu term comes closer to describing pre-197! efforts in the United States to control exposure to asbestos in workplaces. The term is used here to relate the history of such efforts, notwithstanding that history itself often contradicts familiar connotation of the word "standard," i.e., unifor mity, established, usage, wide recognition, and acceptable. In addition to the recognition of a particular risk sought to be avoided, the development of a standard also presupposes the existence of some acceptable information about the perceived cause of the risk and wher-r and among what groups it is likely to appear. M^jor scientific and medical reports that influenced the development of asbestos standards in this manner ire also identified. As will be seen, uncertainties and confusion in this area deiayed and sometimes even retarded development of effective standards in the United States, Medical research into the etiology of asbestos disease--a prerequisite to effective stan dards--b still incomplete, confounded by the long latency periods involved and the fact that medical research did not begin in earnest until the present epidemic was already at the doorstep. AS9ESTOS-RELATEB MALIGNANCY ISSN 3-303(3-:330-3 Copynght * 1969 by Grun* Stratton. Inc All rights olcrodwnwft m arty form rmtrvtO 99 As^5s:;s-^e a:c wa .g.-a-::; Standards art also a reflection of changing social concern, values. and priorities often methodically articulated step by step in court decisions. Today, the courts have squarely placed responsibility for conducting the safety research necessary for effective standards upon those who market and profit by the distribution of utilitarian but potentially dangerous products. Although the rule has been applied retroactively to suppliers of asbestos products, it had no effective role in development of asbestos standards as opposed to removal of the offending products from the workplace. if asbestos is the example, siandards are regrettably no longer an acceptable substitute for regulation and the financial and philosophical commitment required to police and enforce them. Safety in the workplace cannot be left to inevitably overly optimistic risk assessment, conflicting financial considerations, assump tions that reliable medical and scientific information will be available when needed, or assumptions that government's imprimatur is a guarantee of safety. It is important to point out. however, what standards and regulations are nor and cannot be Whether standards represent the customary methods of conduct or government-approved conduct, compliance does not guarantee safety or is it a conclusive standard by which reasonableness is ultimately gauged in litigation. An early case in point was decided by the Supreme Court of Pennsylvania in 1545.** The case arose out of the death of a 33-year-old mother of two children who died from inhalation of carbon tetrachloride fumes after using a cleaning product marketed as `Safety-mean."' The product label contained the word "Caution" and the admonition "Do not inhale fumes. Use only in well ventilated place." Other manufacturers of carbon tetrachloride used a similar label, which was approved by the surgeon general of the United Suites. Notwithstanding, the CGun held that the conspicuous display on the container of the words "Safety-Klean" would naturally lull users into a false sense of security, that this might reasonably have been foreseen by the defendant, and hence that it was liable for the'woman's death. Another apt example is represented by the case of a plaintiff who worked for 21 years in the employ of a manufacturer of building materials containing cement, asbestos, and silica." His employer required all employees to wear protective respirators and filters. Before dying of asbestosis, the employee brought suit against the supplier of the respirators and filter apparatus used in the plant, which had the approval of the United States Bureau of Mines. The defendant, which designed and manufactured the respirator apparatus, defended itself on the ground that the apparatus passed all tests for various dusts conducted by the Bureau of Mines and met all standards outlined by industry publications. Since it was in compliance with the "state-of-the-art" and government standards, argued the manufacturer, it could not be liable for the plaintiff's death. Actually, the testing standards formulated by the Bureau of Mines did not involve asbestos particles and, according to the court, the jury properly concluded that the customary practices and standards of the entire respirator and filter industry were defective for failure to test with asbestos particles. Asbestosis was the first occupational risk eventually subject to imposition of standards in the workplace. Indeed, as will be seen, the carcinogenic potential of asbestos was not regulated until the last decade and is still incomplete. Hits, and s. Today. research it hv the H -ul no * the acceptable it required inevitably >, assumpible when of safety, ins are not conduct or y or is it a igation. An i in 1945 .* n who died ng product "Caution" ed place." which was 8- the court ety-K!ean" * 'reasonably *s woman's v 4 for m ment, , - ctive /fought suit plant, which dam, which self on the cted by the ons. Since it ards. argued Actually, the ive asbestos led that the idustry were .mposition of c potential of etc. EARLY YEARS (PRE-WORLD WAR II) The identification of asbestosis as an occupational disease is attributed to H. M. Murray in 1906.71 Murray reported a case of pulmonary fibrosis in a male asbestos worker in Britain. Murray first saw the worker in 1899 when the worker was 33 years of age and already had suffered 14 years of asbestos exposure, for the most part, as a card room hand. Murray's patient reported that he was the only survivor among !0 others working in the card room when he began. The others died at about 30 years of age. Obviously, the work environment must have been deplorable--probably much worse than those described in some detail below in an Indiana plant during the 1930s.M W. , Cooke published the second report of a case of asbestosis in 1924 Cooke's was the first case generally reported to the medical press. Cooke confirmed a case of asbestosis in a 33-year-old female with an 18-year history of asbestos exposure, which was "intermittent" during the last 5 years "owing to periods of ili health." 1918: investigation Urgently Needed The first report in the United States of any historical significance was in 1918. when the Labor Department published a report by Frederick L. Hoffman, then vice president of Prudential Life Insurance Company of New York.5* Hoffman reported that asbestos mining and processing "unquestionably involved a consid erable dust hazard." Since American and Canadian life insurance companies routinely declined to insure asbestos workers, there was an absence of mortality experience data and reporting on hygienic aspects of the industry. Hoffman thought this "regrettable" and reported in 1918 that an extensive investigation of the health aspects of asbestos manufacture was urgently needed. Labor Department Quid* About the same year as Hoffman's report, the United States Bureau of Labor Standards published the first edition of a guide to occupational hazards and diagnostic signs. Copies of both the first edition (published about 1918) and the second edition of the guide, published in 1922.76 are unavailable. The second edition was apparently republished, however, in 1922. in the United States Nava! Medical Bulletin, where it is attributed to Lewis 1. Dublin, Ph.D., statistician. Metropolitan Life Insurance Company, and Phillip Leibcff.103 The guide identified ' asbestos workers" as an occupation that "offered" exposure to asbestos, "which definitely produces a lung fibrosis under existing industrial conditions." The guide set forth diagnostic signs and recommended safe work practices, i.e., standards, including wetting, exhaust systems, confinement, and air-fed helmets. 1931: U.K. Regulation In 1930. Merewether estimated the population at risk of asbestosis in the United Kingdom to be 2200, consisting entirely of persons handling predomi nantly asbestos.* Processes involving fabrication of articles made from asbestos 102 Ab$#tc**R4{t<*ei Mafrgnancy doth, on the other hand, were thought not to create a risk because exposure 'c asbestos dust in such processes was, by comparison, `'negligible." Responsive to Merewether's report, the United Kingdom enacted the Asbes tos Industry Regulations of 1931, pursuant to the Factory and Workshop Act of 1901.w The regulations became effective March 1.3932. By contrast, the authority in the United States so promulgate government regulations was withheld un;;1. nearly 40 years later."1 Even then, there was resistance, as described below,m The regulations applied to factories and workshop* Involved in manufactur ing asbestos textiles and insulation slabs or sections; making or repairing insulating mattresses; breaking, crushing, disintegrating, opening, and grinding asbestos; mixing or sieving asbestos and all incidental processes; sawing, grind ing. turning, abrading, and polishing dry articles composed of asbestos- and cleaning any chamber, .fixture, or appliance for (he collection of asbestos dust produced in any such process. Merewether's cohort included 363 of the longest exposed workers, of whom 95 were determined to have fibrosis; 21 others were classified as prefibrotic due to asbestos exposure. Merewether believed that only workers exposed to very high concentrations for very long periods of time were at risk.** Accordingly, the Asbestos Industry Regulations of 1931 specifically exempted factories or work shops where the regulated processes were carried on only occasionally and no person was employed therein for more than 3 hours in any week.** For sake of comparisons, the exempted "dose" can be quantified (without adjustment for clearance). Assuming.dust concentrations in the regulated proofs were 5 million particles per cubic foot (the equivalent of about 175,CfS0 particles per liter) and that 4 to 7 liters of air are inhaled per minute by the normal adult ia rest),** the total exempted, i.e., safe., "dose" over a working life {$ hours per day. 40 hours per week for 30 years) was about 4.5 trillion particles. A shipyard tradesman working about 30 percent of the time, alongside insulators installing products containing about 15 percent asbestos41 would inhale only about 7 billion particles or less than 1 percent of the "safe" dose. The 1931 regulations imposed upon employers responsibility to provide exhaust ventilation at the source to prevent the escape of asbestos dust into the ambient air, segregation of particularly dusty processes, and good housekeeping Use of "a breathing apparatus" in certain opert.ions and suitable overalls and head coverings for persons employed "in the cleaning of dust settling and (titering chambers" were also required. The regulations prohibited employing children n certain processes and required that records of required periodic inspections and tests of ventilation equipment be maintained. The regulations not only compelled compliance from industry, but employets were explicitly required to wear prescribed overalls and head coverings and to wear and make proper use of the breathing apparatus provided. Its large part, the British regulations simply paralleled the standards already urged by the United States Department of Labor. In 1933, the Bureau of Labor Standards published the third edition of its guidebook.77 The guide set forth diagnostic signs and recommended precautions, including wetting, exhaust sys tems, confinement, and air-fed helmets. The Department of Labor's report expressed indebtedness to Dr. Anthony Lanza, then assistant medical director. `laiignsncy .10 vi Asbesop Act of authority held until below.*> mufacturrepairing ] grinding ng, grindjtes; and sstos dust . of whom jtic due to very high .in$v, the , or workUy And no * Td (without id process 0 panicles ^1 a-^'U (at - lay. yard > installing ut 7 billion to provide ist into the sekeeping. veralls and ,nd filtering children in ictions and employees mgs and to rds already a of Labor ie set forth xhaust sysor's report ,al director. mm mtmat Aab3tos Regulation 103 Metropolitan Life Insurance Company, for reviewing the entire manuscript. Lanza was ar the time engaged in dust studies of hif own.*3 ISM: "Aabeatoaia a Thing of th<* Foot" A year later, in 1934, Wood and Gloyne published in England a report reflecting the degree of false confidence that accompanied the new regulations.113 Reporting on 100 cases reviewed, the authors observed that ``the picture of pulmonary asbestosis is that of a pneumoconiosis occurring in a factory in which fewprecausions had been taken to protect the workers from a danger, the gravity of which was not realized, Happily these conditions are now a thing of the past and elaborate precautions have been taken to protect the workers. There is thus good reason to believe that the disease is now under control, 1although, because of the latency period] it seems probable that workers exposed to (he dust under the old conditions will continue to present themselves for examination for some time to come." Amid such optimism, there was a harbinger of things to come. One of the 100 cases reviewed by Wood and Gloyne involved a middle-aged boiler/riveter who had served his apprenticeship as a youth in a shop where asbestos was usad for lagging pipes. The same year, Elman, in a discussion of the difference of opinion on whether tuberculosis was a serious superadded risk to asbestotic patients, mentioned finding tubercle bacilli and early-state asbestosis in a patient "exposed to asbestos dust for ten years; but the work, which consisted in coating lead pip** did not entail exposure to high dust concentrations." 193$: American Industry Exhorted to Sponsor Studies The next year, 1935, the Public Health Service published Dr. Anthony Lanza's report of an investigation of dust conditions in asbestos mines and primary-products manufacturing plants during the period 1929-3 l.33 One hundred and twenty-six workers with 3 or more years' exposure had been selected at random for physical examination and x-ray. Sixty-three were diagnosed as first-degree asbestosis, and 4 were diagnosed as second-degree asbestosis. Lanza concluded that prolonged exposure to asbestos dust causes pulmonary fibrosis but that "dust standards are impracticable as yei." Lanza recommended that "the industry seriously face the problem of dust control in asbestos plants" and "sponsor studies " Pertinent research at the Saranac Laboratory was initiated in November 1936. when 9 primary-products manufacturers agreed to underwrite experiments with asbestos dust* to be conducted by Dr. Leroy U. Gardner, director of Saranac Laboratory from 1936 until his death in 1946, when he was succeeded by Arthur VorwaJd, who resigned in July 1953.f<r WalalvHaalty The same year Lanza exhorted the industry,* the WaJsh*Haley Public Contracts Act was enacted.,w The act required that contracts entered into by any agency of the United States government for the manufacture or furnishing of AtbSlo* Malignancy materials, supplies, articles, or equipment in an amount exceeding $10,000 contain, among other provisions, the stipulation (i.e., contractually binding promise) that "no part of such contract may be performed nor will any of the materials, supplies, articles, or equipment to be manufactured or furnished under said contract be manufactured orfabricated in any plants, factories, buildings, or surroundings or under working conditions which arc unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract." Ostensibly, the federal government had exercised the financial leverage of its vast procurement programs by fiat to require its contractors and subcontractors :o provide decent working conditions, The Congress's faith in the simple power of a dear expression of its intent was misplaced. Walsh-Hcaley became effective on June 30, 1936. It suffered deficiencies m three areas; effective penalties, standards, and surveillance. The efficacy of Walsh-Healey, therefore, was dependent upon the willingness to impose the prescribed sanctions, the effectiveness of state regulation, and the surveillance mechanisms. Any of the three factors would have sufficed to make Walsh-Healey ineffective; as it was. these three factors combined to make WaJsh-Healey hardly worth mention in a history of federal regulation. Walsh-Hcaley provided that compliance with the safety, sanitary, and factory inspection laws of the state in which the work was to be performed was pnm;i facie evidence of compliance. The only penalty for Walsh-Healey violations was to blackball the offending government contractor, Ironically., the sole WaJsh-Healey sanction was unthink able to exercise at the most crucial moment, during the large-scale f.sva! construction beginning in 1939 and resulting in what has been estimated to be half the exposures to asbestos currently in litigation. The efforts of the federal government in administering Walsh-Healey w ere diluted not by the competence or dedication of those involved bat by the lack of money and staff to carry out the program. As a result, companies with federal contracts often had worse safety records than others.41 It is beyond tbe.scope of this chapter to explore all of the applicable state laws at the time Walsh-Healey was enacted. For sake of example, however, the law of Indiana, one of the "self-policing" jurisdictions under Walsh-Healey. is instruc tive. The Factory Act of Indiana of 1933 required that exhaust fans of sufficient power be provided to carry off dust from emery wheels, grindstones, and dust-creating machinery in establishments where used. The act further prov;deJ that "there shall be sufficient means of ventilation provided in each workroom of every manufacturing or mercantile establishment." The Indiana taw required employers to provide respiratory protection from men required to work m ar-> enclosed room where "there may be accumulations of dangerous, noxious or deiiterious gases" but the act contained no comparable provision for dusi.* Factory Condition* In 1990s An example of the conditions that prevailed m Indiana during .this period are documented in the report of a judicial decision.** The plaintiff had been regular.1) employed by the defendant from 1930 to 1937. The room in which he worked was 3 Malignancy n 0.000 illy ending ! any of the -shed under uuidrRgs, or azardous or /ormance of .crage of its ntractors to ,, power of a flciencies in esKcacy of impose the surveillance aish-Heaiey jalcy hardly and factory i was pnma V % se offending .as unthinksc ` naval :c 6 haif .eaiey were the lack of with federal ie state laws r. the law of . is instruc- of sufficient rones, and >e? provided workroom of aw required work in any noxious or r dust.**1 :s period are cn regularly worked was Asbesto* Regulation 10$ 60 feet by 40 feet and was used, among other things, as a storage room for bales of asbestos. The asbestos material was stacked to the ceiling and in front of the windows, which were kept closed so that the asbestos materia! would keep dry and therefore "work better." A small space left between the stacks of asbestos was reserved for two machines used to cm and pulverize asbestos m***riai, an operation that caused "an enormous amount of dust.'1 The plaintiff worked at this job 8 hours each day for 8 years. The dust was so thick at times that from a distance of 20 feet, one could not recognize who was operating the machine. The plaintiff, at the end of a day's work, was almost beyond recognition, covered with shreds that hung on him like whiskers, so that he looked like a "polar bear." Respirators were provided to the plaintiff. The evidence at trial was contra dictory as to whether he wore them. Some co-employees testified that the plaintiff wore the masks all the time; others testified that they had seen him when he was not wearing the mask. In any event, the instruction card accompanying one of the respirators provided to the piaintiff said that it would not keep out the fine asbestos particles. Another form of mask provided by the defendant did not fit the plaintiff-s face and left large spaces for dust to enter. Two very important events occurred in the year following the plaintiff's departure from this plant, permanently disabled with asbestosis. 1938: ACGIH Formed In 1938, a new organization was formed in Washington, D.C. Its purpose was to promote industrial hygiene and sanitation, coordinate such activities of official federal, state, local, and territorial organizations, encourage the interchange of experience, and collect and make accessible pertinent information.*1 Chartered in June 1983 as the National Conference of Government Industrial Hygienists, the organization has since 1946 become well known as the American Conference of Government Industrial Hygienists (ACGIH).50 On the program of the ACGlH's first meeting was a demonstration of field studies of the asbestos textile industry. Recent developments in apparatus for measuring atmospheric dust were demonstrated, and there was a discussion of the pathology of pneumoconiosis and experimental dust studies.5 1938: DnwsMn'a "Tentatlva" Textile plant Standard Also in 1938, W. C. Dreessen published an important study of asbestosis in the asbestos textile industry.53 The Public Health Service had been requested to assist the North Carolina State Board of Health in carrying out engineering and medical studies of health hazards in the asbestos textile industry, which then employed about 6000 people in 60 plants. Unfortunately, just prior to the survey, the plants discharged 150 workers suspected of having asbestosis. The investigators concluded that "because clean-cut cases ofasbestosis were found in dust concentrations exceeding 5 million particles per cubic foot." 5 million particles per cubic foot "may be regarded tentatively as the threshold value for asbestos dust exposure until better data becomes available." Dust counts were made by the impinger method, and a chemical analysis of I *42iL. **4*3^ * &j6g^ jK-.-r?-' ! A*fc5tat*Rn,i^ WAlign*i'sc dust samples was undertaken to identify the sample content: greater than 8 percent Canadian crysotite asbestos. In 1940, then-retired Assistant Surgeon General Dreessen presented a paoe emitted "Pneumoconiosis Due to Certain Silicants" to the third annual meeting o the ACGIH/ Dreessen reported that in 1938 the United States Public Healtl Service published the results of a study of asbestosis among 511 asbestos textile workers. "The true incidence of the disease could not be determined because o; an excessive labor turnover antedating the study,'1 Dreessen rapped, perhapi charitably. On the basis of detailed analysis of engineering and meuicai findings, Dreessen reported his conclusion that 5 million particles per cubic foot could be regarded tentatively as a threshold value for asbestos dust exposure. Cases of asbestosis were found in dust concentrations exceeding that level, bui nc clean-cut cases were found in lower concentrations. IWt: New Labor Department Guidance In 1941, the Department of Labor completely revised its 1933 guidebook ^ Contributions from the Metropolitan Life Insurance Company and others *ere acknowledged. This publication recites that "asbestosis may causa disability, and a few fatal cases have been recorded, but in the cases showing marked disability, other organic disease is usually also present." Nonetheless, ventilation was added to the list of recommended controls, The list of occupations thought to offer harmful exposure included carders, crushers, miners, spinners and weavers, $t>d "asbestos-products workers." It is unclear but doubtful that insulators were within the intended meaning of the term "asbestos-products workers." Mors likely, the term referred to workers in primary-products manufacturing plants since, for example, the list of potentially endangered workers included "brakelining makers" but not mechanics, i.e., brake-lining installers. WORLD WAR iJ U.S, Shipyard*, 1I39-4S World War II began in Europe on September 1.1939, when Germany invaded Poland. On September 8, 1939, the president of the United State* proclaimed a state of national emergency. The toll of enemy submarine activity against United States shipping between 1939 and 1943 was 19.4 million tons sunk;*5 losses m *943 exceeded new construction. The need tc build vessels faster than they were beir? sunk and to meet commitments under Lend Lease resulted in enormous ne* construction.*5 as shown in Table 5-1. A grand total of 154,850 vessels, including 1207 combatant vessels, were delivered during the period 1940-45.** Because of the government's efforts to increase ship construction during World War II, the number of shipyard workers increased tenfold, from 177,300 in July 1940 to a peak of 1.89 million inJuty 1944.** This is indicated on Table 5-3. Because of the rapid turnover in shipyard employment, it is estimated that 4 5 million workers were employed in shipyards during World War II.** ney er than 85 ed a paper meeting of >iic Health -10$ textile i?ecause of d, perhaps ii findings. >t could be . Cases of /I, but no idtbook.1* thers were ^ jbiUty. and ^disability, was added to offer and vre lore ing plants id "braxe- iy invaded .wfaimed a nsi United ses in 3942 were being mous new . including ion during 1??,300 in Table 5-2. :d that 4.5 A*b*to Ragutntion 10? TaWt A!! Veite' .Oeliveries July 1. 1940-Junc 30. 1945 1940 1941 1942 1943 1944 1945 Navy Maritime Army Cot Guard Office of Deftnae Transportation Lend Lease 196 1.654 11,25? 3 / .07* 45.125 15,149 33 105 760 1.949 1,786 697 382 1,722 6,T$4 4,125 535 65 140 39 4 -037 140 547 131 340 5 476 Dii* from Shipbuilding folio'** of the War Production Board, January 1942 and Novem ber 1942, Historical fUporu on War Administration. Spodal Study No & April 15, 1941, piOO. 1341: No Aatwt8iel* in Shipyard* In 3941, the Navy identified asbesiosis as a potential occupational disease hazard among workers engaged in the manufacture of asbestos insulating covers for flanges, valves, and high-temperature steam turbines.1' A medical survey of workers in the pipe insulating shop at the New York Navy Yard, however, with maximum exposure of 1? years, found no cases of asbestosis, Similar findings were reported from two other yards. T*Me$-2 Employment in U.S. Shipyard* July 194Q-Junt 1945 Total U.S. Navy Yards Private Yards July 1940 January 1941 July 1941 January 1942 July 1942 January 1943 July 1943 January 1944 July 1944 January 1945 June 1945 177.300 255,500 380,000 588.700 1,031,600 1,478,900 1.720.500 1.682.600 1.887,400 1.446.929 1.139,822 74.800 107,?00 146.100 19Z700 246,000 294.600 333,100 326.000 326J200 326,538 315.735 102,500 147,700 233,900 396,000 792,600 1,184,300 1.387,400' 1.356.600 1.561Z00 1.120.391 824.08? Dat* from Shipbuilding foboct of lb* W*r Production Board. Jaaaury tW2 and November 194). Historical Reports on War Adntimitration. Special Study No 2$. April IS, 1947 b 129. 108 Mannar 1942: First Wish*Hfi*!y Standard* On March 2, 1942, Walsh-Healcy promulgated its first standards. "Bas Safety and Health Requirements for Establishments Subject to WaIsh-H*aJ< Public Contracts Act."15 These represent the federal government's firs: offici promulgation of dust standards. Adequate ventilation was to be provided in all workrooms, buildings places of employment. Special precautions were admonished to be taken workplaces where toxic or other explosive gases, dusts, or highly volat; materials were used. Harmful atmospheric contaminants such as dusts, vapor gases, fumes, sprays, or mists, created or disseminated in workroom, quantities injurious to workers, were required to be reduced or other*) controlled at the point of origin by local exhaust, to prevent harmful materia from passing through the breathing zone of the workers. Where this w; impracticable, the operation or process producing the harmful contaminant w; required to be enclosed or isolated to prevent contamination of the workroom, i addition, the operator or others required to enter the enclosed or isolated m were to be provided with and required to wear suitable United States Bureau -. Mines-approved respirators cr masks when exposed to the harmful contaminant Navy Shipyard Health Program: 1943-45 In July 1942 the Navy Department, in cooperation with the Mantir Commission, agreed to sponsor a joint project in which the shipbuilding industr would be surveyed to assess accident prevention and control of indus'ru diseases. Dr. Philip H. Dnnker, professor of Industrial Hygiene, School of Pub!: Health, Harvard University, was secured on a consulting basis to make the heait. survey of shipyards.*14 Philip Drinker spent 42 years at the Harvard Medical School in the School o Tublic Health. He was the inventor of the on lung" in 1929 and became a work authority on industrial dust.1* His prior work had been with mining and manui*v turirsg firms, and he had never before had anything to do with shipyards " According to his biography. Family Portrait, by his sister, Katherine Dnnkc Bowen, in the course of his work he encountered miners who did not like to vea masks and did not like wet drilling procedures that eliminated dust. Dnnker hac to convince the men, and the labor leaders, that he did not want to shut dev mines and factories or see workers forfeit their bonuses when hazardous job: were made less hazardous. Factory owners too were suspicious, fearful of being forced to spend money for improvements but. on the other hand, fearing lawsuits brought by injured workers. To assist Dr. Drinker, the United States Navy Departmeni made available the services of two physicians from the Navy Medical Corps and four engineers from the Naval Reserve. The two Navy physicians loaned to Dr. Drinker were from the Norfolk and Philadelphia naval shipyards. Once the program was under way. one physician was stationed on the East Coast and the other on the West Coast According to Drinker, there were too few doctors "for reasons that you are aT familiar with and reasons which perhaps are not within our control." (i.e., the war).'1 The four ensigns were graduate engineers and chemists who had specializes ignaney lards, "Basic Walsh-Heaiey s first official vuddings, and * be taken m ighly volatile Justs, vapors, orkrooms, in or otherwise TifuJ materials itre this was rtaminant was workroom. In - isolated area ites Bureau of contaminants. <> the Maritime iin industry dustrial ,.f Public lake the health i the School of eeame a world : and manufacoyards.*1 herine Drinker ot like to wear t. Drinker had to shut down azardous jobs earful of being eanog iawsuits Je available the engineers from were from the tnder way, one e West Coast, hat you are ail rol." (i.e., the tad specialized Aabeetoa Regulation t09 in industrial hygiene and ventilation. One had been a sanitary engineer for the state of mine's for 5 years, another had been in practical air-conditioning work, a third had been an industrial hygiene engineer for the Commonwealth of Massa chusetts for 3 months, and the other had been a chemist in special work in the Department of Agriculture.*1 The initial survey included 20 shipyards.*' The visits varied from 1 to 3 days. In some shipyards surveyed, it was found that there were as many accidents reported in a month as there were employees in the shipyard.*4 It became evident, as a result of the surveys, that there was a decided lack of knowledge on how to prevent accidents in the shipbuilding industry. Problems came up that Drinker couid not answer; he said at a meeting in New York in November 1942, "We are under no [illusions] that we have got ail the answers. We know we have not.''*1 There were no standards for comparison. The mushroom growth of the industry and the constant demand for increased production apparently blinded some shipyard executives to the fact that by not controlling their accidents. they were actually hampering their production rate. It was determined that "minimum requirements for safety and industrial health in contract shipyards" should be established. The health and safety consultants drafted such standards by Novem ber 1942.44 Minimum Requirement* On December 6 and 7,1942, representatives of 90 percent of the shipbuilding industry attended a conference in Chicago to discuss the requirements and suggestions for change, correction, and elimination of the conditions reported by Drinker.64 The proposed minimum requirements were approved by the Navy Department on January 20, 1943, and by the Maritime Commission on February 9. 1943. Before being signed by Frank Knox, secretary of the Navy, and E. D. Land, chairman of the Maritime Commission, an introduction was added stating that "each contractor is hereby given notice that the Navy Department and the Maritime Commission will expect full and complete compliance with the minimum standards. "64TO The "Minimum Requirements for Safety and Industrial Health" identified "any job in which asbestos dust is breathed" as a source of risk to asbestosis, t.g.. handling, sawing, cutting, molding, welding rod salvage. The Minimum Requirements recommended segregation of dusty work, special ventilation, use of respirators, and periodic medical examinations.*0 Administration of the requirements was delegated to the regional health consultants of the Maritime Commission in Washington, Philadelphia. Chicago. New Orleans, and Oakland, but they were given no authority "to qompei either Navy or Maritime contractors to comply with any of the provisions of the minimum requirements."64 In March 1943 Drinker wrote that the health and safety problems confronting him were "comparatively simple" but that the overwhelming percentage of "green" employees made his job more difficult. Further, he said, "the pressure to turn out ships is great--it should be, for the need is urgent--and often we must condone practices that we would not accept in peacetime."*6 On March 4, 1943, the Navy Department issued a directive to its contracting 110 Malignancy officers requiring them to secure compliance with the minimum requirements, whenever submission of recommendations by the safety and health consultants did not prove effective.4** On August 30. 1945, the program was terminated by H. L, Vickery, com missioner of the Maritime Commission.'04 Still, however, there was no specific measure or 'standard"' to determine what constituted "harmful" dust concentrations outside the asbestos textile industry. Textile Plant Data Inapplicable to Shipyard* In 1946, Fleischer et al. reported that there was no established figure fo* permissible or safe dustiness in pipe-covering operations, saying that the asbesto; textile industry data was not applicable.22 The 1946 Fleischer-Drinker report was based upon chest x*rays of pipe coverers at four shipyards and surveys of working conditions there during the war.52 This work included some of the best dust counts done during the period.1* Dreessen's engineering and medical studies in an asbestos textile plan' reported in 1938. included chemical analyses of settled dust samples demonstrat ing that the total asbestos content was more than 80 percent. Dreessen also undertook to determine the length of inhaled asbestos fibers that reached the lungs and determined that only particles longer than !0 p.m reached the alveo!.-. Fleischer and Drinker recognized that these data were not applicable to asbestos pipe covering, which involved intermittent cutting of finished products containing as little as 15 percent asbestos. Total Du*t verau* Aaboato* Fib*r Controv*r*y Drinker's team measured the total dust particles, but it also looked at tht actual number of asbestos fibers contained in the samples. The "general roomi dust counts in the pipe-covering shop of two private shipyards were reported, for example, as provided m Table 5-3. T*t4e 5-3 Dust Counts (million panicles per cubic foot; Operation Total Oust Range Average Asbestos Dust Rangt Average General room Shipyard C* 9.0-21.6 14.2 0.34-1.7 0.6 Shipyard Dt 3.9-10.9 6.0 0.0-0.05 0.02 D*i* from Ftewehar WE. as al: A health survey of pipe wvennj aptrsuobj in eonsiructm* naval masts. lod Kyg Toxicol 2S.--!6. t$<4. (Shipyard B *#i the US Navy Yard Brooklyn. NY: Shipyard A wt* the U5 Navy Yard, Boston.) Nr* York Shipbuilding Corp. Camden, SJ. rBethlehem Sleet Co Fore River Yard. Quincy, MA. itgnurtcy requirements h consultants 'kkvry, com to determine jesros textile led figure for ; the asbestos ray* of pipe re during the . the period.*0 tortile plant, aemonstrat)recsen also bed 'he lungs the alveoli. < ibestos .taining looked at the enerai room" reported, for if mimwiwwwriw ! Mtwwta* Regula.'ico in Fleischer and Drinker assumed that asbestos!? results from breathing asbes tos fibers of relatively long length, soon as 15 to 75 y.m. Based on an investigation published by Lsnza in !935,*J they assumed that "chopped-up" asbestos fibers of l or 2 n?n were inert <tn fact, they may actually be cleared more readily than long fibers**). Therefore, they concerned themselves with the presence in air of asbestos fibers (defined as particles with a teng'.Mo-wjdth ratio of 'fires or greater"), which could be seen as such under low power of an ordinary microscope/* Fleischer and Drinker's asbestos fiber counts cap be convened to contem porary measurements. A eoncemrsticn of 6 million panicles total dust per cuoic foot was found io be equivalent `.o 0.2 million fibers greater than 55 microns per cubic foot (Tabic 50). There are 28.300 cubic centimeters in one cubic foot and 0.2 million fibers is 20.000 fibers; 20.000 fibers per 28,300 cubic centimeters is 0.7 finer? greater than 15 microns per cubic centime.er. Such results, compared to the data reported by Dreessen chat asbestos dust concentrations below 5 million particles per cubic foot were safe)." were reassuring but deceiving in two respects. First, no firm conclusions are justified today concerning whether or not. as Fleischer and Drinker assumed, fibrogcnicity for. for that matter, tutr.ongenicity) becomes negligible beiow i5. 10, 5. or even I y.m. in fact, it has been suggested that the med;urmlength fibers that are apt to be deposited ip the respiratory passage.1; above the alveoli may contribute most to carcinoma.*4 Even if their assumptions about fiber Irng'h had been correct, modern electron microcopy has revealed that most :ro*,Tv asbestos fibers arc very small m diameter--hundredths to tenths of a nveron. even when many morons long--and could not have been collected by Fle-scher's instruments or. if they were, would not have been visible by ihe microscopic techniques available to him.*414 1945? Shipyard Pip# Ceding Hot Dang#fou* In any event, finding only 3 cases of asbestosts 4mong 1074 pipe coverers in shipyards. Fleischer and Drinker concluded that pipe covering was no/ a dangerous occupy.'ion." Unpubti6h*cl Data from S*rans in fact, investigators at Saranac Laboratory in New York, doing research for the asbestos industry.*1 had also reported to their sponsors in 19*3. based upon animal experiments, that short fibers, i.e.. under 3 microns, were practicaiiy inert and that the longer fibers, i.e.. 20--50 microns, cause fibrosis. The Saranac scientists cautioned that, cn account of this, standard impinger dust counts were deceptive because the imptnger method detected largely men granular particles and not the etiologically significant longer fibers. Accordingly, Saranac recom mended use of an electrostatic precipitator. In addition. Saranac advised that the "tentative*' and frequently quoted standard of 5 million particles per cubic foot (mr-pcf) was likewise unreliable because it was based upon sampling done with a standard impingcr." Asbestos-Related Malignancy Further Dust Studle* Rcommnd*d in 1947, the Industrial Hygiene Foundation of America furnished to the Asbestos Textile Institute (ATI) a report of a preliminary dust investigation of the asbestosis problem in textile plants of member* of the ATI." The investigators autioned that the United States Public Health Service (USPHS) studies in North Carolina plants" did not permit complete assurance that 5 mppcf was actual^ safe. Eighty to 95 percent of the total dust seen in dust counting consisted of nonfibrous panicles, In effect, the correlation studies of the USPHS had only related incidents of asbestosis to the number of nonfibrous particles of a vze ranging from 1 to 5 or 10 p.m in length. Since it was possible that the fibers of o;hc; shape or size were the causative factor involved, the Industrial Hygiene Founda tion recommended further dust studies. 5 mppcf "Asbestos" Was Applied Standard It has been stated that the standard extant during this period was 5 nsliion particles per cubic foot tetai dust (background dust and asbestos dust,1, not 5 million panicles per cubic foot asbestos dust.*9 Likewise, it is contended that excursions above this level are prints facie evidence of neglect in the shipyards The first ignores practicality. About 9 months before Pearl Harbor. Admiral McIntyre of the Medical Group of the Navy, had asked Harvard and Columbia if they would provide short training courses for health work to a selected group of doctors and engineers and chemists. Both universities agreed. Drinker taught courses of 3 months' duration.*1 The men who went through his course applied his methods in the shipyards; through such widespread and uniform use, they were (he standard. The second concept ss belied by the ACGlH's own principles and intent and by the records of the state agencies that adopted the ACGIH recommendations In 1946. at the eighth annual meeting of the ACGIH in Chicago, the ACGIH adopted a report of the Committee on Threshold Limits setting forth allowable concentrations of air contaminants. The list included a standard of 5 mulion particles per cubic foot of air. standard light field count, for asbestos.: All of the values adopted were compiled from lists published by the American Standards Association and by Warren Cooke in Industrial Medicine, volume 14 {|9-*5i. Many of the values had already been in general use by members of the conference for several years.: Goi of Threshold Limit Value* (TLVa) and Maximum Allowable Concentration* (MACa) Dr. W. G. Frederick, an assistant chemical engineer from Detro.' and chairman of the Committee on Threshold Limits, which included Drinker of Harvard University, explained the "considerable difficulty" of fixing satisfactory values for maximum allowable concentrations (MAC) of chemicals in respirabie atmospheres.2 In pan, the difficulty was attributable to lack of a uniform definition of the maximum allowable concentration concept. One concept was that the MAC value should represent, as accurately as possible, that concentration to which a worker could be exposed for a given gnsncy is bed to the gation of ihe investigators dies m North was actually consisted of HS had only !*s of a size bers of other cne Founda- vas 5 million dust), not 5 vended that > yr shipyards, bor. Admiral ! Columbia if :ted group of taught ied his .y were nd intent and imendations. the ACG1H ih allowable of 5 million 5.' Ail of she it S'andards le i4 (1945). e conference Detroit and J Drinker of I satisfactory in respirable ran definition jceur&tely as t for a given Asbestos Regulation 113 period of time and stiii escape physiologic or organic injury and occupational disease. A second concept was that the MAC should, represent some (>--tion of that concentration that would ityure the worker in order to allow a margin of safety in the design of protective equipment and guard against possible synergistic effects in the case of multiple exposures. A third concept was that the MAC should perform the function of the former concepts and, in addition, provide a ' work environment free of objectionable but nonityurious concentrations of smokes, dust, irritants, and odors. There was no meeting of the minds as to which, if any, of these goals the 5 million particles per cubic foot standard for asbestos was thought to achieve. POST-WORLD WAR H State Practice* On November 1. 1946. J. J. Bloomfield, assistant chief. Industrial Hygiene Division. United States Public Health Service, presented to the Industrial Hygiene Foundation of America a paper entitled "Codes for the Prevention and Control of Occupational Diseases."1' At that time, only 35 states promulgated rules and regulations. In 17 of the states, published MAC values had legal status, whereas in the other 18. they were merely suggested guides. Seventeen states had an MAC for asbestos reported by Bloomfield, as provided in Table 5*4.11 In 1948, the states were polled for information relating to laws and regulations for the control of dust in industry.100 Of 43 responding states and territories, II had no "regulation" (Arizona. Arkansas. Indiana. Kansas, Maine, Maryland. Mississippi. New York. North Dakota. South Dakota, and Vermont). Eight had a specific TLV for asbestos of 3 million particles per cubic foot (Arkansas. Massachusetts. New Hampshire. New Jersey. Ohio. Oregon, Wisconsin, and Hawaii). The 23 remaining respondents all adopted or used the ACGIH standard. Johnstone's 1948 text, Occupational Medicine and Industrial Health, stated that the allowable concentration of asbestos dust was 10 mppef. twice the ACG1H standard, although an appendix adapted from the Division of Industrial Safety in TaNt 5-4 Maximum Allowable Concerttrauon (MAC; Value* for Asbcstot for which Good Agraement Exist* _______________________ Toxic dusts and fumes M g/Mt Number Number Percent MAC agreeing disagreeing agreeing(ppm)* ___J?0______________________________ too 5j Dttt from Bloomfield II- Code* for the pTcveatioe and Control at Oocupanoaai DiMrue*. tn Transaction! of Use Eleventh Aaoual Matting of ladwtnal Hygsene Foundation of America. November 7,1944, pp 71-79. 'Pirn oftubaext per million paw of air by volume. tMilliinum of wbetaace per cubic meter of air. ; Million* of particle* of subtext per cubic foot of air. 114 AsOattos-Reiaiad Malignancy the state of California (with few exceptions, identical to those used by other states) stated that the "suggested MAC" for total dust was 50 million panicles per cubic foot but for asbestos dust was 5 million panicles per cubic foot The apparent contradiction exposes Johnstone to criticism. It is relatively clear, however, that he did not err. The MAC of 5 million panicles was for asbestos 0.5 to 10.0 in length. The 10 million particles standard was reported as "allowable" for panicles between 0.5 and 5.0 pm. In February 1959, the medical director of Johns*ManvilIe Corporation. Kenneth W. Smith, wrote to the Detroit-Edison Company responding to a request for "information on the possible health haiards associated with some of our tJohns-Manville'sJ products,Referring to one of Johns-Manville's products. Thermobestos, Smith told his customer that the product contained only about 10 percent asbestos fiber. Assuming that the airborne dust would approximate the same proportion, Smith advised that applying the ACGIH's 5 million panicle per cubic foot standard would permit dust levels of 50 million particles per cubic foot without "an excessive amount of asbestos fiber." The standard was thus intended only to represent conditions under which it was believed that nearly ail workers might be repeatedly exposed to asbestos dust day after day without adverse effect. The textile factory standard simply did not apply to product users, such as transient shipyard insulators intermittently cutting products containing as little as 10 to IS percent asbestos. Such standards were expressed in terms of a time-weighted average concentration. It was anticipated that the standards might be exceeded for short periods without injury to health ' ACGIH Condemn* "Improper U**" of TLV* The ACGIH itself, as late as 1958. adopted a resolution condemning laws equating concentrations above the recommended TLV asprimafacie evidence of a serious health hazard. In effect, the ACGIH itself repudiated the notion that its owr, threshold limit values could be used as " uandards": The American Conference of Governmental Industrial Hygienists condemns the improper and dangerous misuse of the threshold limit or MAC list or a simtlar list by incorporation in any code, law, rule or regulation as a sole criteria of a health hazard. Emerging Cancer Concern During the war years, an association with occupational cancer emerged, In 1942, W. C. Hueper concluded, in the earliest text devoted to occupational cancer, that "an evaluation of the evidence presented reveals certain features connected with these cases (reports in the world literature on asbestosis and cancer] which are suggestive of an occupational cancer."* The next year, however, Wampler's text. Principles and Practices of Industrial Medicine described asbestosis as a consequence of asbestos dust exposure but made no mention of cancer. In 1947, the chief inspector of factories in Britain reported 235 deaths during the 23*year period from 1924 to 194$ in which asbestosis had been proved a: autopsy. Cancer of the lungs or pleura was found in 31 (13.2 percent) of the 235 cases. Those cases of "asbestosis developing cancer of the lung" showed a mean u wcy ! by other trtides per .. relatively s was for i% reported jrporation, o a request .me of our , products, iiy about 10 ximate the particle per r cubic foot ler which it .bestos dust * tply did not ntly cutting tdards were anticipated t -alth.5 .-mning laws evidence of Uion that its demns the ular list by Uh hazard. emerged. In occupational tain features bestosis and : next year. Medicines1,0 but made no ieaths during en proved at it) of the 235 ow*d a mean Aabettoe Regulation 115 exposure of ,16.5 years." Teleky's text in 1948, Factory and Mine Hygiene,' discussed asbestosis in detail but made no mention of a relationship to cancer. New texts on <?ccupitional disease published by Johnstone in 1948 and by Sax in I951*7 likewise described asbestosis but made no mention of cancer in association with it. Maritime Safety Act In 1958, the Longshoremen and Harbor Workers' Compensation Act was amended to require employers to "install, furnish, maintain and use such devices and safeguards... as the Secretary (of Labor] may determine by regulation." In I960, this authority was exercised by promulgating safety and health regula tions for ship repairing and shipbuilding.42 The regulations adopted the threshold limit values of the ACGIH effective March 21, 1960, i.e., 5 million particles per cubic foot for asbestos dust. The same year, the government safety and health standards for federal supply contracts were amended to adopt the ACGIH threshold limit values. Aabeatoala and Canear Three significant new developments had by then occurred. In 1955, Richard Doll published in England his report, "Mortality from Lung Cancer in Asbestos Workers,"54 Doll had collected autopsy records on 105 persons employed at a large asbestos works since 1935. Lung cancer was found in 18 instances, 15 times in association with asbestosis. All of the subjects in whom both conditions were found had started employment before 1923 and had worked in the industry at least 9 years before the 1931 Asbestos Industry Regulations had become effective. One hundred and thirteen men who had worked for at least 20 years in places where they were liable to be exposed to asbestos dust were followed up and the mortality among them was compared with the rates for all England and Wales. Thirty-nine deaths occurred, whereas only 15.4 were expected. The excess was entirely due to deaths from lung cancer (11, as opposed to 0.8 expected) and from other respiratory and cardiovascular disease (22, as opposed to 7.6 expected). Ail of the cases of lung cancer were associated with the presence of asbestosis. Here was convincing evidence of a causal association between lung cancer and asbestosis or. put another way, a causal association between lung cancer and exposures that cause asbestosis, i.e., the type of exposures that occurred in primary-products manufacturing plants and textile plants before 1931. In 1943, Leroy U. Gardner, director of the Saranac Laboratory, New York, advised Vandiver Brown, Johns-ManviUe Corporation, that there were on record 10 cases of lung cancer in asbestos workers.51 Gardner told Manvilie that the evidence was suggestive but not conclusive that asbestosis may precipitate the development of cancer in susceptible individuals. Not until i960 was there a suggestion of a direct causal relationship between asbestos exposure and cancer, vis-a-vis asbestosis and cancer. The significance is of major importance. Contem porary thought was that cancer followed asbestosis, not exposure to asbestos, and, in turn, because of increased awareness and controls, that asbestosis was under control. tie Aabeatoa-flelated Malignancy Furthermore, since asbestosis was still associated only with prolonged, heavy exposure to asbestos," there was little reason to believe that insulators might be at risk (whereas later it would be shown that the prevalence of tumors is actually higher in persons working with finished products, such as insulators, than in miners and millers).55 Cigarette Smoking By 1957 a scientific study group established by the National Institutes of Health agreed that a causal relationship between cigarette smoking and lung cancer existed.*1 This development obfuscated prior suggestions of a causal relationship between asbestos exposure, asbestosis, and lung cancer because prior studies had not taken into account the smoking history of the subjects. Even as late as 196$,*' Selikoff found that of 87 asbestos workers who never smoked cigarettes regularly, none died of lung cancer. Being based upon the experience of only 87 workers. Selikoff disclaimed that his finding proved that exposure to asbestos dust had no influence on the risk of lung cancer among nonsmokers. Just as certainly, however, the data did not suggest that workers thought not to be a; risk of asbestosis were in drastic need of stricter standards. Finally, in 1960, Wagner reported in the British Journal of Industrial Medicine 33 histologically proven cases of mesothelioma.1" Only in 8 of the 33 cases was evidence of asbestosis demonstrated. One of the 8 was exposed to asbestos white lagging steampipes. Two of the remaining 25 patients were engaged in lagging locomotive boilers. Eight case histories illustrating the different types of exposure to asbestos dust included a white female 56 years of age "who could only have had a short exposure to asbestos a* a child and probably a further slight exposure as a young woman" when, from 1916 to 1922, she worked as a clerk in an asbestos warehouse. Another case involved a white male 32 years of age who spent his childhood in the vicinity of asbestos fields. His only subsequent contact with asbestos was the auditing of the books of an amosite mine. (An addendum to the article reported an additional 14 cases. Of the total of 47 cases, a possible exposure to crocidolite had been established in 45 cases.) ACQIH limit* TIVs to Atfeutosi* In 1962. the ACGIH made clear that its present threshold limit value related only to the prevention of asbestosis and attributed the standard of Dreessen's study in three crysotile asbestos textile plants.1 1K3: Judicial Pro*urM Bogin In January 1963 the Supreme Court of California decided the Greenman case, which expanded the concept of strict liability in tort to any article placed on the market by a manufacturer which proves to have a defect that causes injury to a human being." The case involved a combination power tool that could be used as a saw, drill, and wood lathe, but the court's rationale for imposing strict liability on product manufacturers describes asbestos products as well: "It should not be controlling whether plaintiff selected the machine , . . because of the machine's own appearance of excellence that 1 ':!i id the defect lurking beneath the surface." r ** ->lv. A, sulators mon is >rs, than mrtes of md lung a causal because rts. Even smoked rience of wsure to <ers. Just t to be at Industrial ^ %of the 33 sposed to e engaged it types of Y ^uld J ight a .rk in >f age who m contact dendum to a possible due Ttlated Dreessen's nman case, aced on the * injury to a i be used as net liability >ould not be e machine's ae surface." Atbettoe Regulation 117 The purpose of the new rule was to insure that the costs of iryury resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. The financial liability imposed by this rule was intended to provide the financial incentives to make industry responsible for adequate standards. The Greenman rule found acceptance in other jurisdictions. Product Labeling Ostensibly, at least one manufacturer began placing a warning label on the packages of its products in 1964 and others began in 1966. These "warnings" read as follows: This product contains asbestos fiber. Inhalation of asbestos in excessive quantities over long periods of time may be harmful. If dust is created when this product is handled, avoid breathing the dust. If adequate ventilation control is not possible, wear respirators approved by the U.S. Bureau of Mines for pneumoconiosis-producing dust. One court has found the admonition that a worker should "avoid breathing the dust" to be black humor and found the warning legally inadequate in other respects, i.e., failure to convey the gravity of risk and failure to convey effective precautions against it." To avoid liability, sellers may give directions for the safe use of their products and warnings against foreseeable misuses. Products bearing such warnings and instructions, which, if followed, make the products safe, are not defective. With respect to asbestos, this burden was put on manufacturers too late. Ten years after the Greenman decision, strict liability law was applied to asbestos manufacturers in the Borel case." The plaintiff was employed as an insulation worker from 1936 until 1969, when he was diagnosed as having pulmonary asbestosis and sued ait manufacturers of products he had installed alleging that their products were unreasonably dangerous because they failed to give adequate warnings of the known or knowable dangers involved. The defendants argued unsuccessfully that the dangers of asbestos to insulators were not foreseeable until about 1968. The court held them liable explaining that foreseeability must be measured in light of the manufacturer's status as an expen and its duty to test its product, The evidence established that none of the defendants ever tested its products to determine its effect on insulation workers nor did any of the defendants ever attempt to determine whether the exposure of insulation workers or others to asbestos dust exceeded the ACGlH's recom mended threshold limit values or, indeed, whether those standards were accurate or reliable. IIS Aabaatoa-Aeiatad Malignancy Almost 10 years later, the asbestos manufacturers made the same arguments in a New Jersey court contending that the dangers about which they were accused of failing to warn were undiscovered at the time the product was marketed and undlscoverablt given the state of scientific knowledge at that time. The Supreme Court of New Jersey squarely decided that the medical community's presumed unawareness of (he dangers of asbestos was not a defense to the plaintiff's claim. ' Holding a manufacturer to the status of an expert, the court explained, is merely a legal fiction employed to supply scienttr (guilty knowledge), traditionally a necessary element of tort law. Imputed blame cannot be overcome by "state* of*the*an" evidence that defendants did not know or that they could not have known of the product's dangers. According to the court, it was not unreasonable, as defendants contended, to impose a duty on them to warn of the unknowable. The rule achieves two important and rational goals: it places financial conse quences upon the person in the best position to make the cost-benefit analysis between accident costs and accident-avoidance costs and to act on that decision once it is made, and it creates an incentive for manufacturers to perform their important roie in product safety research and to invest more actively in such research.14 One court has said that government safely standards and criminal lav, have failed to provide adequate consumer protection against the manufacture and distribution of defective products and that punitive damages thus remain the most effective remedy.5* Calling* and excursions The year 1964 brought an explosion of significant developments. First, the question of exposure "excursions" about a recommended standard was ad dressed by the ACGIH in Philadelphia on April 25 to 28.4 The threshold limn values for industrial air promulgated by the ACG1K were based upon the premise that, although ail chemical substances are toxic at some concentration experi enced for a period of time, a specific concentration exists for all substances from which no injurious effect will result no matter how long the exposure. Until 196? the ACOIH's threshold limit values were defined as time-weighted concentrations averaged over the course of the workday operations. Then, the American Standards Association translated the guides as "maximum acceptable concentra tions" or, in other words, "ceilings," below which all concentrations should fluctuate. Responding, the ACGIH considered two options: to adopt a "ceiling" concept for its guidelines or suitably lower the guidelines while retaining the time-weighted average (TWA) concept. The ACGIH believed that the TWA concept had, practically, much to recommend it, but at the same time it possessed a defect for certain fast-acting substances. The ACGIH took what it felt was the best of both concepts. Certain TLVs would be assigned a "C" suffix indicating that the TLV represented a ceiling. The basis for assigning or not assigning a ceiling value rested on whether excursions of concentrations of periods up to 15 minutes might result in intoler able irritations, chronic or irreversible tissue change, or narcosis of a sufficient degree to increase accident proneness, impair self rescue, or materially reduce work efficiency. By this time, no quantitative statements had been given bv ACGIH on the magnitude of permissible excursions other than the suggestion that v wcy arguments .-re accused rketed and >e Supreme < presumed fTs claim.'6 ,plained, is raditionaily by "stated not have reasonable, renewable, icial conse:fit analysis tat decision rform their ely in such riminal law > ifacture and tin the most .. the rd was ad- eshold limit the premise tion experi ences from Until 1963 ncentrations e American : concentra.icms should a "ceiling'' etaining The y, much to n fast-acting rpts. Certain .-presented a i on whether tit in intolerf a sufficient rially reduce en given by ggestion that As&mim Regulation 119 excursions above the recommended limits should be compensated by an equiva lent excursion below the limit. 1964: Asbestosis Found in Shipyard* Also in 1964, William T. Marr, an industrial hygienist at the Long Beach Naval Shipyard in California, published an important article.17 Eighteen years after the Fieisher-Drinker report. Marr found that "shipboard pipecovering and insulating during overhaul and repair is a hazardous trade." Five employees at the insulation shop at the Long Beach Naval Shipyard, averaging 15 years' exposure, were receiving disability compensation due to asbestosis. One employee, after 10 years' employment as a pipe coverer and insulator, had died in 1962. Employees in the insulation trade used fiberglass, magnesia, and diatomaceous earth, and other substances that Marr said complicated air sampling. These employees spent about SO percent of their time working aboard ship installing block an$ pipesection products containing 10 to 15 percent amosite asbestosis and only about S percent of their time working aboard ship removing asbestos-containing products. Exposure concentrations to particles 5 to 10 microns in length ranged from 0.1 to 2.0 million particles per cubic foot. Although Marr noted that insulation materials and work methods had remained essentially the same since the Fieisher-Drinker study, his report noted that removal of insulation during overhaul and repanstarted after the war and that, by the time Marr finished his investigation and published his report, many shipyard employees had over 20 years' experience in the insulation trade in contrast to the 1945 study, when only 51 of the 1074 employees had over 10 years' experience. Mart's report noted further that there were no established figures for a maximum allowable concentrations of asbestos fibers in pipe-covering operations or for potentially massive exposures of short duration. Biologic Effect* of Mbetios Also in October 1964, Irving Selikoff presented his first matfor paper at a conference entitled "Biological Effects of Asbestos" in New York. The paper was published the next year.*' Because of the growth of asbestos utilization, Selikoff found it inadequate to speak of "asbestos workers" vis-a-vis asbestos textile workers, asbestos insulation workers, and such. He noted that the different occupations vary widely in important respects: in intimacy, intensity, and duration of exposure: in variety and grade of asbestos used; in working condi tions: and in concomitant exposures to other dusts or inhalants. The asbestos exposure to which insulation workers are subjected is limited and intermittent. Some of the materials used contain no asbestos. Of the asbestos-containing products widely used by insulators, magnesia-block insulation was the most important and usually contained approximately 15 percent asbestos. Asbestos cement generally had 15 to 20 percent or less of asbestos. Nevertheless, an investigation involving 1522 asbestos insulation workers was undertaken. The study included ail members of the insulation workers' union in the New York-New Jersey metropolitan area from 1942 to 1962. Among 392 insulators examined, more than 20 years from onset of exposure, medical evidence of  120 A*bat04-fl*!atfK? Malignancy asbestosis was found in 339. More startling perhaps, lung cancer was found at least seven times as often as expected and cancer of the gastrointestinal tract was found three times more often than expected, USPHS Undertake* Long-Term Study At the International Conference on Asbestosis in Caen, France, May 28-31. 1964, the United States Public Health Service presented a paper describing a new. comprehensive study of the asbestos-products manufacturing industry in the United States. The study was expected to require 20 to 30 years to complete.'' UK Undertakes More Stringent Regulation In the United Kingdom, realization that the Asbestos Regulations promul gated in 1931 were not entirely effective occurred in 1965. Figures were then published by the Ministry of Pensions and National Insurance showing that although there had been an overall decrease in the number of new cases of most types of pneumoconiosis, the trend for asbestosis was still upward.** Shown in Table 5-5 are the number of diagnosed asbestosis cases during the years 1960 to 1964. As a result, the Ministry of Labour engaged itself in formulating new regulations that would be more stringent and. for the first time, would include pipe laggers arid dockers, both of whom were excluded in 1931. Drteeaen "Standard" Labeled "Arbitrary" In 196? the "maximum dusi level'' of 5 million particles per cubic foot was still adhered to by the UK factory inspectorate. Ironically, though regulation of asbestos exposure in the UK preceded regulation in the United States by decades the standard was characterized in 1967 as one '`proposed by an engineer [Dreessen] in 1938 as an interim guide. This figure was an arbitrary choice, and had no experimental foundation." In a report of the International Conference on the Biological Effects of TaWe 6-5 Diagnosed Cases of Asbestosis, 1960-44 Number of Year Cases 1960 29 1961 43 1962 52 1963 67 1964 83 Data from Sayers 1C: Asbestos as a Health Haaarrf in the United Kingdom. Unpublished report to Union Cirbidt U.K. 1967. 1 lancy a found at d tract was v4ay 28-31, oing a new. stry in the omplete.7* ns promulwere then owing that >e$ of most ` Shown in ars I960 to * iiting new sclude pipe c iwi was gulation of y decades, t engineer hoice, and Effects of t i 1 j i I AsbMtoe Regulation 121 Asbestos in 1964, W. Taylor of the Department of Social Medicine. Queen's College, Dundee, said: "The M.A.C. (Maximum Allowable Concentration) of 5 million particles per cubic foot is not now acceptable. Industry should aim at ! million particles, and accept this figure with reservations until our knowledge in this field is extended." Cigarette Labeling In 1965, the Federal Cigarette Labeling and Advertising Act was enacted effective January 1966, The following warning was required in all advertising and on every package of cigarettes: "Caution: Cigarette Smoking May Be Hazardous to Your Health." .1968: ACQIH Proposed Lowering TLV No direct response to the "information explosion" of 1964 in the standard setting field was forthcoming, however, until 1968. At its meeting on April 2 and 3, 1968, the ACGIH TLV committee recommended changing the TLV for asbestos (all forms) to 12 fibers per milliliter greater than 5 p.m in length, or 2 million particles per cubic foot.' Upon adoption by the ACGIH, however, the recommended change appeared only as a "notice of intended change."7 Pursuant to extant ACGIH procedures, such a step was initiated to inform industry of the intended action of the TLV Committee prior to taking any final action on threshold limit changes. Each year, following the development of the annual list and its acceptance by the ACGIH at its annual meeting, ail new additions and revisions of former values were placed on a tentative list where they remained for at least two years before being placed among the recommended values. This action was taken because the Conference on the Biological Effects of Asbestos in 1965 called attention to a probability that the 5 million panicles per cubic foot limit recommended by Dreessen was inadequate to give complete, working-lifetime protection against all forms of asbestos and attention to the rising worldwide rate of increase in lung cancer among asbestos workers. Critical exposures to asbestos were recognized then to extend far beyond those of miners and millers of asbestos or textile weavers and to include carpenters (sawing asbestos board), insulators, pipe (aggers, dockers handling asbestos cargo, brake-lining workers, rubber compounders, and others.7 Calling Ectcblithoct Five million particles per cubic foot was made a ceiling value below which all concentrations should fluctuate. This was regarded by the ACGIH as the equivalent of a time-weighted value of slightly less than 2 million panicles per cubic foot or 12 fibers per milliliter greater than 5 p.m. This new limit was intended by the ACGIH "to reduce to an insignificant risk, the occurrence of asbestos disease among those exposed for 30 years to ail forms of asbestos."7 122 Aspaatos-Ralated Maligna 1969: Shipyard Byttandar ftiak Idantiflbd Two new important reports appeared in the literature in 1968. Peter Harries reported on his study of four shipyards in Britain, which togetf employed about 50,000 workers.17 Less than 450 of the workers **classified 'asbestos workers." Because of the nature of their work, only So of these subject to the Asbestos Industry Regulations of 1931. All were involved in refit n and repairing ships rather than shipbuilding. The difference is important becau the removal of tagging material gives rise to more dust than its applicatio Furthermore, because of the requirements of modern shipbuilding for mo efficient insulation material since 1950, there had been a great increase in t> amount of asbestos exposure over the past 17 years. Harries's investigate showed that the problem was not limited only to mer. continuously working wi asbestos. Asbestosis was found among boilermakers, ibctrical fitters, engir fitters, engineers, iron caulkers, joiners, plumbers, rivaters, shiprights, she blasters, stokers, and welders. Mesothelioma was also found among these trade Dust counts were as high as 636 million particles per cubic foot (during bagging c asbestos debris) and 173 million panicles per cubic foot (during removal c amosite asbestos sections from a boiler room). Abto-Cigarett* Smoke Synergfam identified Also in 1968, Selikoff published his paper "Asbestos Exposure. Smoking an< Neoplasia."*' Selikoff found that asbestos workers who smoke bave about 9; times the risk of dying of bronchogenic carcinoma as men who neither work wit) asbestos nor smoke cigarettes. Of 87 asbestos workers who never smokec cigarettes regularly, none died of lung cancer. Selikoff qualified this finding. Bern; based upon the experience of only 87 .men, he said that it did not prove tha* exposure to asbestos dust had no influence on the risk of lung cancer. It did suggest to Selikoff, however, that exposure to asbestos dust does not lead to an extremely high risk of lung cancer among nonsmokers. Surveys of the smoking habits of insulators, factory workers, and miners and millers have consistently shown that bronchogenic carcinoma is ui,common m those who do not smoke." 1968: UK Adept* Nw Standard# In 1968, the Committee on Hygiene Standards of the British Occupational Hygiene Society published new standards for crysctile asbestos dust.-'0 The standards were, in the opinion of the committee, the best that could be drawn from existing data, which were recognized to be scanty and based on factorexperience of continuous exposure during working hours, which, during the period 193J-50 were substantially greater than 40 per week. The goal of the proposed standards was to reduce the risk of contracting asbestosis to 1 percent of those who had a lifetime's exposure to the dust. It was thought that this goal could be achieved by limiting cumulative exposure to 100 fiber years per cubic centimeter. That is. for example, a concentration of 2 fibers greater than 5 um per cubic centimeter for 50 years, 4 fibers per cubic centimeter for 25 years, or 10 fibers per cubic centimeter for 10 years. <y ItCT G. ogether -ified as * were efitting 'ecause cation, r more in the igation Tg with engine >, shot trades, ging of >vaJ of ** i*nd <or *> l ik. ,d Being 'e that It did i to an ;rs and non in ational :o The drawn actory ng the of the ercent is goai cubic <.m per * 10 AtiMMtoe Regulation 123 Effective May 14,1970, the asbestos regulations of 1969 were adopted and the 1931 regulations were revoked. The regulations applied to every process involving asbestos or any article composed wholly or partly of asbestos except "a process in connection with which asbestos dust (defined as "dust consisting of or containing asbestos to such extent as is liable to cause danger to the health of employed persons") cannot be given off." The regulations required exhaust ventilation sufficient to prevent the entry into'the air of any workplace of asbestos dust (as defined) or, where impracticable, approved respiratory protective equip ment and protective clothing.11 "Dangerous dust levels" were identified by His Majesty's Inspectors of Factories in an associated document."1' For chrysotile and amosite the standard was 2 fibers (defined as particles between 5 and 100 microns in length and having a length-to-width ratio of at least 3:1, observed by light microscopy at 500 x magnification) with 10-minute excur sions permitted up to 12 fibers per cubic centimeter. For crocidolite, the standard was 0.2 fibers per cubic centimeter "because the concentration of this mineral that is believed to be liable to be dangerous to health is very small indeed." 1969; Wa!$h-Htal#y Amended On May 20, 1969, the Walsh-Healey regulations were amended to lower the standard for asbestos to 12 fibers per milliliter greater than 5 pm in length or 2 million particles per cubic foot.41 Two days later, the Navy Department issued an instruction to establish "as a basic reference the threshold limit values of airborne contaminants adopted by the American Conference of Governmental Industrial Hygienists."12 The Clean Air Act of 1970s4 authorized the Environmental Protection Agency (?A) to establish national emissions standards for hazardous air pollutants (NESHAPS), defined as air pollutants that may reasonably be anticipated to result in an increase in mortality or an increase in serious irreversible or incapacitating reversible illness.'* By April 1, 1971, the EPA was required to publish a list including hazardous air pollutants for which it intended to establish such a standard.1* Asbestos was among the three substances named on the first list.11 Despite efforts to have it removed, asbestos was retained on the list.14 1970; ACGIH Reccmmemla Still Lower Standard In 1970, the ACGIH recommended lowering the standard further to 5 fibers per milliliter greater than 5 microns in length. This time, however, the ACGIH stipulated a specific ceiling of 10 fibers per milliliter of stipulated duration and frequency as measured by specific procedures.1 Before 1970, excursions had been both permissible and inherent in the TLV concept (with the exception of 30 substances bearing "ceiling" values). This was so. the ACGIH explained in 1971. because all other TLVs had a built-in safety factor or zone of "no effect." The magnitude of the permitted excursions above the TLV, in cases where it was not stated explicitly, could be determined using a rule of thumb supplied by the ACGIH. For TLVs up to I part per million, excursions might safely exceed the TLV by a factor of 3, For TLVs up to 10 parts per million, the excursion factor was 2; between 10 and 100 parts per million, the 124 Aabeatcs-Related Mstignsnc excursion factor was 1.5; and for TLVs from 100 to 1.000 parts per million, tnexcursion factor was 1.29.' OSHA AND SUBSEQUENT REGULATIONS 1971: OSHA Enacted Effective April 13,1971, the Wilfiams-Steiger Occupational Safety and Heanl' Act of 1970 was enacted.** The federal government moved into a broad area of responsibility for the first time on a national scale on a "worst-first" basis,94 The act's rrny'or tool was to be establishment and enforcement of standards with the force of law, The act itself, however, recognized that setting and enforcing standards would not by itself solve the country's occupational heaith and safety problems and that it would take a great many trained personnel to launch an effective attack.1* Effective August 27, 1971. regulations were enacted requiring avoidance of concentrations above those specified in the threshold lima values of airborne contaminants for 1970 by the ACG1H or use of protective equipment.*4 The initial use of existing standards was intended to get the program off to a running start.** Both federal and state safety and health inspectors were in short supply, however. There were only 1600 state safety inspectors and fewer shsu\ 100 federal inspectors.1* There was an immediate need for about 1000 industrial hygienists. 3100 physicians, 16.000 nurses, and 8,000 scientists to protect the workforce.M including 3.5 million American workers being exposed to asbestos in their jobs34 and approximately 390,000 occurrences of occupational disease each year.14 Utter in the year, OSHA determined that this standard (12 fibers per milliliter greater than 5 microns in length or 2 million particles per cubic foot of air) constituted a grave danger to employees exposed to this 8-hour time-weighted average concentration.43 Effective December 7, 1971, OSHA regulations were amended to provide that the 8-hour time-weighted average airborne concentra tions of asbestos dust to which employees could be exposed should not exceed 5 fibers per milliliter greater than 5 microns in length. Concentrations above 5 fibers per milliliter, but not to exceed 10 fibers per milliliter, were permitted up to a total of 15 minutes in an hour for up to 5 hours in an 8-hour day. Asbeto Emergency Standard An emergency standard was published May 29.1971, and became effective on December 7, 1971. In the interim, on November 4. 1971, a petition for an emergency standard to controi concentrations of asbestos dust was submitted to the secretary of labor by the Industrial Union Department of the AFL-CIO.4* Navy Action Even before July 1971, when President Richard Nixon signed an executive order* applying OSHA to federal agencies, the Navy had adopted the new. lower standard. On February 9, 1971, an instruction was issued to all naval shipyards 1 jnancy turned with -ation of the engineering equirements .-xammer, in ilations that > proposals, aminer that xtant 5-fiber try to reach ier plants to severe and event, was ives of the ^ feility of the reasonable, used. The is for the Y 'sofar ided: n. .egulanent hazard st potential nary label*' mg require; has been rmai use of . this repre* ' substitute teristics of ;r industry i requiring - ery people try of labor itions were ndard was -cision. the 'een the Aabeetc* Regulation 127 2-fiber standard and a 5-fibcr standard.*' The regulations acknowledge that the record revealed that many work operations would meet varying degrees of difficulty in complying with the 5-fiber standard and that in some plants, extensive redesign and relocation of equipment might be needed. The delay in implementing the 2-fiber standard was intended to provide ail employers "a reasonable time to comply." Both NIOSH and the Advisory Committee on Asbestos Dust had recommended labels for asbestos products or other containers. These recommen dations became very controversial in the course of the proceedings. Employers, in general, strongly contended that words such as '`danger" and "cancer" were unwammtedly alarming. These contentions were found to have merit and the adopted standard eliminated them. The new standards required "caution" labels on asbestos-containing products except "where asbestos fibers had been modified by a bonding agent, coating, binder or other material so that in any reasonably foreseeable use, handling, storage, disposal, processing, or transportation, no airborne concentrations of asbestos fibers in excess of the exposure limits prescribed . . . will be released." The labels were required to state only: CAUTION Contains Asbestos Fibers Avoid Creating Dust Breathing Asbestos Dust May Cause Serious Bodily Ham New Evidence New evidence was acquired about this time. Data from the United Kingdom obtained in 1966. indicated that little clinical disease, including x-ray evidence of asbestosis, had occurred among workers first employed at some time after 1933. when improvements in work practices purportedly had been achieved. New x-rays were taken in i970, however, and the results were evaluated in 1972 showing that many workers still had abnormalities.4* On April 6, 1973, the EPA promulgated its national emission standard for asbestos.71 The regulations applied to the renovation and demolition of structures containing asbestos and to spraying of asbestos materials. The regulation specified procedures for removal of friable, sprayed asbestos fireproofing and insulation materials, including container labeling, required EPA notification whenever such removal was to take place, and essentially prohibited spray application of asbestos fireproofing and insulation (but not decorative) materials. No fiber levels were specified by the regulations, but they required that there be no visible emissions exterior to the structure.71 Neither the EPA nor OSHA regulations showed asbestos use in manufactur ing during 1973, however.15 OSHA Regulation Challenged A petition challenging the timetable established by the 1972 standard was filed with the United States Court of Appeals for the District of Columbia by the Industrial Union Department of the AFL-CIO.*' As a result of that proceeding, in 1974 the court directed the secretary of labor to reconsider the effective date (July 126 Aabestos-fteiattd Malignancy I, 1976) for the 2-fiber standard and determine whether such date might be accelerated for alt or some of the industries affected.41 1978: N#w Proposed Rul* Responsive to the court's mandate, on October 9, 1975. the Department of Labor published new proposed rules.4* The proposed standard excluded the construction industry, for which a separate revision of the standard was contem plated. The new, proposed standard, applicable to all other employments covered by the act. would have lowered the permissible exposure to 0.5 asbestos fibers per cubic centimeter and reduced the permissible ceiling for excursions to 5 fibers per cubic centimeter for periods not exceeding 15 minutes. The proposal also required "danger" labels on all raw material, waste and products containing asbestos fibers, or on their container, stating: DANGER. Cancer Hazard Contains Asbestos Fibers Avoid Creating Dust Development of the proposal was premised upon "recent medical and scientific evidence of increased health hazards associated with occupational exposure to asbestos and the experience gained by OSHA through three years of enforcement and administration of the current asbestos standard." The asbestos industry applied for and received an extension of the closing time for receipt of comments and raised strong objections to the proposed regulations.24 On December 2. 1975, OSHA requested NIOSH to re-evaluate the informa tion available.71 In response, in December 1976, NIOSH published its "Revised Recommended Asbestos Standard." NIOSH found that available studies provide "conclusive evidence" that exposure to asoestos fibers causes cancer and asbestosis in man. In view of that, NIOSH recommended that the standards should be set at the "lowest level detectable by available analytical techniques." Since phase-contrast microscopy was found to be the only generally available and practical analytical technique, that level was fixed at 0.1 fibers per cubic centimeter. That standard was intended to protect against the noncarcinogenic effects of asbestos arid materially reduce the risk of asbestos-induced cancer. Pursuant to the standard adopted on June 7, 1972. effective July 1. 1976. the S-hour time-weighted average airborne concentration of asbestos dust to which any employee covered by OSHA might be exposed was lowered to 2 fibers longer than 5 y.m per cubic centimeter of air.47 On October II, 1976, the president signed the Toxic Substances Control Act (T0SCA).1W In 1976, the Consumer Product Safety Commission (CPSC) banned all consumer patching compounds and artificial emberizing materials containing respirable freeform asbestos effective January 16, 1978, and December 15. 1977. respectively. Asbestos consumption in 1976 was 82 percent of the all-time high in 1973. but the decrease was probably largely due to recession-related factors. The manufac turers' cost of compliance with OSHA and EPA regulations was being absorbed : Magn*ncy might b lartmen? of eluded the as contem ns covered s fibers per 5 fibers per so required g asbestos >> edicai and ipational *s of jsing proposed >e informa. '`Revised es provide ancer and standards ;hniques." ailable and per cubic rcinogenic cancer. . 1976. the t to which xrs longer ontrol Act C)banned containing r 15, 1977. 1 1973. but bed I Aabeeio* Regulation 129 by consumers.27 Canadian Johns-Manville announced a $77 million 5-year capitalinvestment program to improve its Jeffrey mine at Asbestos. Quebec, which produced 45 percent of Canada's asbestos and 15 percent of the world's production.27 In 1977, their was a sudden divergence in the rates of asbestos consumption and construction activity attributable to lessened demand brought on by recogni tion of the environmental problems associated with asbestos.21 In 1978, the ACG1H adopted the 2-fiber standard for chrysotile but recom mended lowering the standard to 0.5 fibers for amostte and to 0.2 fibers for crocidolite.10 On April 26,1978, the secretary of Health, Education and Welfare announced an asbestos-notification program consisting of an advisory letter to 400,000 physicians and a public information campaign aimed at workers and others exposed to asbestos.2* In 1978, the EFA ban on spraying asbestos-containing materials was broadened to include decorative applications.1* and in 1979 EPA NE5HAPS, National Emission Standards for Hazardous Air Pollutants, rules were broadened to include building renovation.4* On July 2, 1980, the Supreme Court invalidated OSHA's benzene standard, rejecting the agency's position that there is no safe level of exposure to a carcinogen and that the burden was on industry to show that there is a safe level of exposure.42 Since OSHA's 1975 asbestos proposal was similarly founded on a policy to set permissible exposure levels (PELs) for carcinogens as low as technologically ar.d economically feasible, it was moot. On May 27,1982. under TOSCA, the EPA published a final rule requiring the identification of friable asbestos-containing materials in schools and the notifica tion of those exposed effective June 28. 1982.50 1983: Ntw Emergency Temporary Standard The OSHA Act allows, after public notice, an opportunity for comment by interested persons, to promulgate rules and standards for Occupational Safety and Health. The act also aifows the secretary to bypass these normal procedures in favor of promulgating an emergency temporary standard (ETS) to take effect immediately upon publication in the Federal Register if the secretary determines that * 'employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards" and also determines "that such emergency standard is necessary to protect employees from such danger." On November 4, 1983, acting pursuant to its ETS enabling statute. OSHA published an ETS lowering the time-weighted average permissible exposure level for ambient asbestos fibers from 2.0 fibers per cubic centimeter that are 5 urn or more in length to 0.5 fibers per cubic centimeter.11 ETS Successfully Chsilsrtgsd On November 17, 1983, the Asbestos Information Association (AIAL an organization of American and Canadian manufacturers of asbestos products, petitioned the Fifth Circuit Court of Appeals for an emergency stay pending 130 Aabst08-Rlated M*Hs?nncy judicial review of OSHA's action. The AIA arfued that its members would suffer irreparable harm if the stay was not granted. The Fifth Circuit granted the stay and held a full hearing on the merits. '* The standard under which the Fifth Circuit reviewed OSHA's new PEL was whether the agency's action was ''supported by substantial evidence in the record considered as a whole." immediately after its November publication, OSHA commenced regular notice and comment rule making to decide whether to impose a new permanent PEL for asbestos. The statute requires that the secretary promulgate a permanent standard no later than 6 months after publication of the ETS. Thus the Court of Appeals limited its review to an assessment of the harm likely to accrue, or the grave danger that the ETS might alleviate, during only a hypothetical 6-month life of an ETS, even though OSHA partially justified its decision to issue an ETS on the fact that notice and comment ruie making often take several years to complete. OSHA claimed that by permanently lowering the extant 2.0 fibers per cubic centimeter PEL to 0.5 fibers per cubic centimeter, it would save 64 lives per 1000 workers over a working life of 45 yean. Over 6 months, 80 lives out of an estimated worker population of 375,399 would be saved according to OSHA. Thus the secretary of labor determined that 80 lives were at risk of grave danger. Although not prepared to say that OSHA was wrong, the court found that the record considered as a whole did not substantially support OSHA's conclusion that the ETS was necessary to alleviate a grave risk of worker deaths during its 6-month term and determined that the ETS was invalid. In reaching its result, the court disavowed any suggestion that deaths must occur before health and safety standard may be adopted and reiterated that the gravity of danger is a policy decision committed to OSHA, not to the courts. ACKNOWLEDGMENTS I express my gratitude and appreciation to Cynthia Larsen, for her review and editing of the manuscript; to Holly J. Wydra, Esq., for her organization of the text and references; to Elizabeth Skyles, for her research assistance; and to Melanie Allred and Rose Thorogood, for their typing efforts. REFERENCES 1. ACGIH, Committee on Threshold Limit Values. Documentation of Threshold L:mit Values. 1962. PP 11-12. 2. ACG2H Proceedings. April 7-13, 1946, pp 54-56. 3. ACGIH Transactions, 1938. p xviii. 4. ACGIH Transactions, April 30, May 1-2, 1940. Bethesda. Md, pp Ml. M2. 5. ACGIH Transactions, April 19-22, 1958. p 138. 6. ACGIH Transactions, April 25-28. 1964. p 25. 7. ACGIH Transactions, May 12-14. 1968, pp M5. 188-191. 8. ACGIH Transactions, May 10-12, 1970. p 34. 9. ACGIH Transactions. May 24-28. 1971, pp 113-116. 10. ACGIH Transactions, May 7-12, 1978, pp 103-108. tncy arid suffer ie stay and . PEL was the record d regular permanent permanent e Court of rue, or the -month life an ETS on I years to > fibers per >4 lives per s out of an iHA. Thus ve danger. ***1 that the conclusion i during its the .-fety olicy her review ation of the ice; and to eshoid Limit . 142. Aabaste* Regulation 131 11. Annual Report of the chief inspector of factories for the year 1947. London. His Majesty's American Conference of Governmental Industrial Hygienists St*,:-nery Office. 1949. 12. Asbestos information Association/Horih America v, OSHA, 727 F.2d 415 (5th Cir. 1984). 13. Asbestos Regulations, 1969. United Kingdom. 14. Ayer HE. et al: A comparison of impinger and membrane filter techniques for evaluating air samples in asbestos plants. Ann NY Act Sci 132:294. 275-276. 1965. 15. Basic Safety and Health Requirements for Establishments Subject to Walsh-Hcaley Public Contracts Act, March 2. 1942. 16. Beshada v. Johns-Manvilie, 90 N.J. 191, 447 A.2d 539 (N J. 1982). 17. Bloomfield JJ: Codes for the prevention and control of occupational diseases, in Transactions of Eleventh Annual Meeting of Industrial Hygiene Foundation of America, November 7, 1946, pp 71-79. 18. Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973). 19. Bowen KD: Family Portrait. Boston. Little. Brown, 1970. pp 354-374.. 20. British Occupational Hygiene Society, Hygiene Standards for Chrysotil* Asbestos Dust. June 196$. .23. Brown EW; Industrial hygiene in the Navy in national defense. War Med 1:3-12. 1941. 22. Bureau of Medicine and Surgery Instruction 6270.3E, May 22. 1969. 23. Bureau of Mines Minerals Yearbook. Asbestos. U.S. Department of Interior. 1970. p 1. 24. Bureau of Mines Minerals Yearbook, Asbestos, U.S. Department of Interior, 1971. P I25. Bureau of Mines Minerals Yearbook. Asbestos. U.S. Department of Interior. 1973. P 1. 26. Bureau of Mines Minerals Yearbook. Asbestos. U.S. Department of Interior. 1975, pi. 27. Bureau of Mines Minerals Yearbook. Asbestos. U.S. Department of Inferior, 19?6. pp 2-3. 9. 28. Bureau of Mines Minerals Yearbook. Asbestos, U.S. Department of Interior. 1977. pp 1. 2. 29. Bureau of Mines Minerals Yearbook. Asbestos, U.S. Department of Interior. 1978-79.p 1. 30. Constitution, Art. 1, Sec. I, Proceedings of the Eighth Annual Meeting of the American Conference of Governmental Industrial Hygienists, Appendix A. p 68. 31. Constitution. Transactions of the First Annual National Conference of Governmen tal Industrial Hygienists. Washington, DC, June 27-29. 1938. pp ii-vi. 32. Cooke WE: Fibrosis of the lungs due to the inhalation of asbestos dust. Br J Med 2:147. 1924. 33. Craighead JE: The pathogenesis of asbestos-associated diseases. N Engl J Med 24:1446-1455, 1982. 34. DollR: Mortality from lung cancer in asbestos workers. BrJ indust Med 12:81.1955. 35. Dreessen WC et al: A Study of Asbestosis in the Asbestos Textile Industry. Public Health Bull No 2J, U.S. Treasury, 1938. 36. Drinker P: The health and safety program of the U.S. Maritime Commission. JAMA 121:822-823, 1943. 37. Drinker P: Talk before Maritime Commission on October 20, 1942. Records of the Maritime Commission, Record Group 178. Entry 86. Box 531, National Archives. SuiUand. Md. 132 Aab#*to*>Rl*tad Malignanc 38. Egeberg RO: Statement before the Subcommittee on Labor, Senate Committee c Labor and Public Welfare, November 4. 1969. 39. EPA: Guidance for controlling friable asbestos-containing materials in buildingMarch 1983. at' 1-2. 40. Exec. Order No 11.612 (July 1971). 41. Fagan JC: Statement to Subcommittee on Labor of the Senate Committee on Lttbo and Public Welfare. November 24, 1969. 42. 25 Fed. Reg. 1543-1563. February 20. I960, amending Section 41 of the LKWCa Longshore and Harbor Workers' Compensation Act 33 U.S.C. I 941. 43. 34 Fed. Reg. 7946 at 7953, May 20. 1969. 44. 36 Fed. Reg. 10466. ei uq.. May 29. 1971. 45 . 36 Fed. Reg. 23207. December 7. 1971. 46. 37 Fed. Re*. 467. January 12, 1972. 47. 37 Fed. Reg. 11319, June 7.1972. 48. 40 Fed. Reg. 47653. Oct. 9. 1975. 49. 43 Fed. Reg. 26372. June 19. 1978. 50. 47 Fed. Reg. 23360. May 27, 1982. 51. 48 Fed. Reg. 51086-51140, November 4. 1983. 52. Fleischer WE, et al: A health survey of pipe covering operations in constructing naval vessels. 2nd Hyg Toxicol 28:9-16. 1946. 53. Gardner LV: Outline of proposed monograph on asbestosis. transmitted February 24, 1943, to Vandiver Brown, Johns-ManvUle Corp. 54. Grodon JB: Statement to Subcommittee on Labor of the Senate Committee on Labor and Public Welfare. November 21, 1969. 55. Greenmin v, Yuba Power Products, Inc., 59 C.2d 57, 377 P.2d 897 (Cal. 1963 i. 56. Grimslaw v. Ford Motor Co., 119 C.A.3d 757, 810. 174 C.R. 348 (Cal. 1981). 57. Harries PG: Asbestos hazards in nav*f dockyards. Ann Occ Hyg 11:135-145. 1968. 58. Hemeon WCL: Report of preliminary dust investigation for Asbestos Texiue Institute, June 18, 1947. 59. Hoffman FL: Mortality from Respiratory Disease in Dusty Trades. Bull 231. Bureau of Labor Standards. US Department of Labor. 1918. 60. Hueper WC: Occupational Tumor and Allied Diseases. Springfield, 1L Charles C Thomas. 1942. 61. Industrial Union Department. AFL-CIO v. Hodgson. 499 F.2d 467 (D.C. Cir. 1974) 62. Industrial Union Dept, v, American Petroleum Institute, 448 U.S. 601. 100 S. C: 3844, 65 L.2d 1010(1980). 63. Johnstone RT: Occupational Medicine and Industrial Hygiene. St. Louis. CV Mosby, 1948. p 368. 64. Joint United Stales Navy Department--Maritime Commission Safety and Health Program, Records of the Maritime Commission. RG-178. Entry 95, Box 535. National Archives (u.d.). 65. Lanza AJ: Effects of the Inhalation of Asbestos Dust on the Lungs of Asbestos Worker*. Public Health Report (vol 50;. US Treasury, 1935. 66. Maize v. Atlantic Refining Co., 352 Pa. 51 (1945). 67. Marr WT: Asbestos exposure during naval vessel overhaul. Am Ind Hyg Assoc J 25:264-268. 1964. 68. Memorandum of agreement (to underwrite certain experiments with asbestos dust to be conducted by LcRoy V. Gardner at the Saranac Laboratory, Saranac Lake. Ne* York) dated November 20, 1936. 69. Mertwether ERA: The occurrence of pulmonary fibrosis and other pulmonary affections m asbestos workers. J Ind Hyg 12:98.1930. s. 'm bui^nn. tetonUbof he LHWCA. jomrtructing :d February tt on Labor >68. tos Textile 31. Bureau Charles C Cir. 1974). JOO S. Ct. -ouis. CV nd Health Box 535. Asbestos g Assoc J os dust to alee, New ulmonary Aabeatc* Regulation 133 70. Minimum Rcqr;'ement$ for Safety and Industrial Health in Contract Shipyards. Washington. DC, Government Printing Office, 1943. 71. Murray HM: Report ofthe Departmental Committee of Compensation and Industrial Disease. Minutes of evidence. Cd. 3946:127-128, HM Stationery Office. London. 1907. 72. National Emission Standards for Hazardous Air Pollutants: Asbestos. 38 Fed. Reg. 8826 (April 6. 1973). Codified at 40 C.F.R. 61. 73. Naval Ship Systems Command Instruction 5100.26. February 9. 1971. 74. NIOSH: Criteria for a Recommended Standard . . . Occupational Exposure to Asbestos. HEW. 1972. 75. NIOSH: Revised Recommended Asbestos Standard. December 1976. 76. Occupational Hazards and Diagnostic Signs, Bull No 806. US Bureau of Labor Standards. 1922. 77. Occupational Hazards and Diagnostic Signs, Bull No 582. Bureau of Labor Stan* dards. US Department of Labor, 1933. 78. Occupational Hazards and Diagnostic Signs. Bull No 41. US Department of Labor. 1941. 79. Occupational Health Study of the Asbestos Products Industry in the United States. Division of Occupational Health, Public Health Service, HEW. May 26-31. 1964. 80. Official report of proceedings before OSHA, US Department of Labor, in the matter of standard for exposure to asbestos dust, proposed rule malting. March 14, 1972. 81. Official report of proceedings, Office of Emergency Management, in the matter of Shipbuilding Stabilization Committee, New York, November 16-18. 1942. pp 119-124. Records of the Ship Stabilization Committee. RG-254. Entry 1. Box 12. National Archives. Washington. DC. 82. Porter v. American Optical Corp.. 641 F.2d 1128 (5th Cir, 1981). S3. Pub. L. 85*742. I 1. 72 Stat. 835. August 23, 1958. 84. Pub. L. No. 91-604. 84 Stat. 1685. 42 U.S.C. H 7401. et seq. (1970). 85. Pub. L. 91*596. Dec. 29.1970.84 Stat. 1590.29 U.S.C. *5 651-678 (effective 120 days after the date of enactment). 86. Rowe v. Gatke Carp.. 126 F.2d 61 (7th Cir. 1942). 317 U.S. 702. 87. Sax Nl: Handbook of Dangerous Materials. New York. Reinhold. 1951. 88. Sayers IC: Asbestos as a Health Hazard in the United Kingdom. Unpublished report to Union Carbide U.K., 1967. 89. Schall EL: Present threshold limit value in the USA for asbestos dust: A critique. Ann NY Acad Sci 132:316.318. 1965. 90. SeiikoffU: Asbestos criteria document highlights. Am Soc Safety Engin J 19:3. t974. 91. Sciikoff U; Asbestos exposure, smoking, and neoplasia, JAMA 204:104-110. 1968. 92. SeiikoffU: Disability Compensation for Asbestos-Associated Disease in the United States. 1982, Environmental Science Laboratory. Mount Sinai School of Medicine of the City University of New York. December p 14. 93. Seltkoff U: The occurrence of asbestosis among insulation workers in the United States. Ann Acad Sci 132:139, 1965. 94. SeiikoffU. Lee DHK: Asbestos and Disease. New York, Academic Press. 1978. pp 76-71, 347. 427-428. 95. Shipbuilding Policies of the War Production Board. January 1942. November 1945. Historical Reports on Wax Administration. Special Study No. 26. April 15. 1947. pp 5-7,159. 200. Records of Code 07L, Naval Sea Systems Command. Department of the Navy, Washington, D.C. 96. Shultz GP: Statement to Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, September 30. 1969. 97. Smith KW: Letter dated February 19. 1959. to the Detroit Edison Company. ^3* A$bttot*Roltt*d Malignancy 91. Smokini and Health Joint Report of the Study Group on Smoking and Health Science 123 (325S): 1! 2~! 133> June 7. 1957. 99. Statutory Rulei and Orders, 1931. London. Her Majesty's Stationery Office. 19j2. ICQ. Summary of information relating to codes, rules and recommendations currently adopted or applied for the control of dusts in industry by the state and other associated industrial hygiene agencies of the United Suits. t94g. 101. Technical Data Note 13. Standards for asbestos dust concentration for use with the asbestos regulations 1969. Department of Employment and Productivity. Her Majesty's Factory Inspectorate. 102. Teleky L: Factory and Mine Hygiene. New York, Columbia University Press, 1948. 103. Toxic Subsunces Control Act, 13 U.S.C.A. ( 2601, <et stq. (1976). 104. Tracy J: Memorandum to United Sutes Maritime Commission via Commander H. L, Vickery, dated August 27, 1943, endorsed "approved" August 30, 1945. Records of the Maritime Commission, Record Group 171, Entry *6, Box 378. National Archives. Suitland, Md. 103. US Naval Medical Bull 17:183-9)4,1932. 106. 42 U.S.C. I 7412. 107. Vorwald AJ: Curriculum vitae. Personal papers. Armed Forces Institute of Pathol ogy. Walter Reed Medical Center, Washington, DC. 208. Wagner JC; Diffuse pleural mesothelioma and asbestos exposure in the North Western Cape Province. Br J Indust Med 17:260-271, I960. 109. Waish-Healey Public Contracts Act. Pub! L. 74446.49 Sut. 2036. 42 U.S.C. 33. tt reg. 1933. 110. Wampler FJ: Principles and Practices of Industrial Medicine. Baltimore, Williams and Wilkins. 1943. 111. Williams-Steiger Occupational Safety and Health Act of 1970. PubJ. L. 91-596 5 34. 84 Sut. 1590. 29 U.S.C. 655. et ttq. (1970). ' 112. Wood WB. Gloyne SR: Pulmonary asbestosts. Lancet 11:1383. t934.