Document ez0EvQ0MrpdnvekqE0Z8KLXq

FILE NAME: Texaco (TEX) DATE: 2003 Oct 22 DOC#: TEX001 DOCUMENT DESCRIPTION: Legal - Declaration of Barry Castleman 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR SKAGIT COUNTY 6 VIRGINIA JAMESON, Individually and as Personal 7 Representative of the Estate of RAY JAMESON, No. 02-2-01069-8 Plaintiff, 8 9 V. DECLARATION OF BARRY I. CASTLEMAN, Sc.D. 10 TEXACO, INC. et. al., 11 Defendants. 12 13 I, BARRY CASTLEMAN, declare and state as follows: 14 BACKGROUND 15 1. My name is Barry I. Castleman. I live at 4406 Oxford Rd., Garrett Park, Maryland 16 20896. My education consists of a Bachelor's Degree in Chemical Engineering from Johns 17 Hopkins University 1968. I have a M aster's Degree in Environmental Engineering, which was 18 mainly in areas related to air pollution control from Johns Hopkins University, 1972. I have a 19 Doctor of Science Degree in Health Policy from Johns Hopkins School of Hygiene and Public 20 Health, 1985. 21 2. My professional experience goes back over 30 years in the area of asbestos and other 22 occupational and environmental health problems. My field is occupational and environmental 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - C:\WINDOWSVTemponu} Internet FUesSContent.IE5\KPS0OEWZ\PLD-Castleman Declaration Final.doc Bergman Senn Pageler & Frockt P.O . B o x 2010,17530 Vashon H ighw ay SW VASHON, WA 98070 T elephone: 206.+63.4408 F acsimile: 206.+63.4470 1 health policy, which is a branch of Public Health, mainly oriented towards the recognition of risk 2 factors and the prevention of disease from industrial activities. 3 3. The Doctoral degree was awarded for two years o f course work, various examinations, 4 and the writing o f a doctoral dissertation. The course work was mainly in the areas of 5 toxicology, epidemiology, biostatistics, physiology, and public health policy. These are the tools 6 that are used to understand how the body works and can be damaged by toxic substances, how 7 these effects can be identified by means of various studies of people, studies of animals 8 experimentally exposed, etc. 9 4. My Doctoral thesis was, Asbestos: An Historical Case Study of Corporate Response 10 to an Industrial Health Hazard, and is largely identical to a book published in 1984 by Prentice 11 Hall Law and Business called Asbestos: Medical and Legal Aspects (now in its 4th Edition, 12 1996). The doctoral thesis is an historical review o f the asbestos problem as a public health 13 problem in society worldwide, but mainly in the United States. It encompasses a comprehensive 14 review of medical literature o f all kinds, as well as other literature available in libraries and 15 published sources such as government publications, safety magazines, engineering journals, 16 trade magazines, insurance publications, encyclopedias, popular magazines, and newspapers. 17 The doctoral thesis also involved research based on unpublished government records. The 18 government records included workers' compensation claims files where claims had been made 19 by individuals alleging that they had asbestos-related diseases o f the lungs, claims against 20 various companies that were their employers, some o f which companies were also manufacturers 21 o f asbestos insulation products these individuals has used in the course o f their work. 22 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - 2 C:\WINDOWS\Tcmporary Internet Files\ContcnlIE5\KPSOOEWZ\PLD-Castteman Declaration Final.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW VASHON, WA 98070 TELEPHONE: 206.463.4408 F acsimile: 206.463.4470 1 5. In addition to published information o f all kinds, I examined files, unpublished 2 information available from the U.S. government archives, the archives o f scientists and the 3 archives of institutions that had worked for and with asbestos companies. 4 6. I have also looked at unpublished information which was obtained in legal discovery. 5 This included trade association minutes, corporate documents, and testimony of corporate 6 officials who were associated with asbestos hazards over the years - doctors, plant managers, 7 executives, and other people who were aware of events that transpired. For example, I have 8 reviewed documents obtained from the American Petroleum Institute ("the API") and the 9 Industrial Health Foundation, formerly known as the Industrial Hygiene Foundation ("the IHF"). 10 7. In addition to published information and corporate knowledge that came primarily out 11 of legal discovery, I have also interviewed numerous current and former leading officials in the 12 field of industrial medicine and hygiene. They included physicians who were active in the field 13 of occupational medicine, such as Harold Stewart, who first published on asbestosis in 1931, and 14 Alfred Angrist, who first published on asbestos and lung cancer in 1942. They are both 15 pathologists. Another, Dr. Wilhelm Hueper, was a leading United States authority in the field of 16 occupational cancer and first director o f the environmental cancer section o f the National Cancer 17 Institute. Dr. Harriet Hardy, Dr. Thomas Mancuso, Dr. Gerrit Schepers, and others I have 18 interviewed were involved in the area o f asbestos and health over the past decades. 19 8. I have acted as consultant for The National Science Foundation, The Environmental 20 Defense Fund, the Natural Resources Defense Council, and the European Commission. I have 21 provided testimony to United States congressional committees concerning the hazards o f 22 asbestos and other toxic substances. I have also testified before United States congressional 23 committees regarding the development o f asbestos knowledge. I have been a paid consultant to DECLARATION OF BARRY CASTLEMAN, Sc.D. - 3 C:\WiNDOWS\Tcmporary Internet Fi]es\ContenllES'KPSOOEWZ\PLD-Castleman Declaration Flnal.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW VASHON, WA 98070 TELEPHONE: 206.463.4408 FACSIMILE: 206.463.4470 1 the Office of Toxic Substances of the United States Environmental Protection Agency and have 2 performed research on environmental asbestos hazards. I have performed consulting work for 3 the United States Occupational Safety and Health Administration. In my research, I have 4 reviewed thousands o f publications and documents pertaining to asbestos-related disease and 5 have interpreted and related the contents o f the same. 6 9. I have testified as an expert witness in over two hundred (200) cases throughout the 7 nation on issues related to asbestos state-of-the-art and historical development o f asbestos 8 knowledge. 9 THE BODY OF KNOWLEDGE ABOUT ASBESTOS DISEASES 10 ASBESTOSIS 11 10. The originally published reports in the era of the modem asbestos industry came at just 12 before the turn o f the last century, and the first reports in the English language were included in 13 the annual reports o f the chief inspector o f factories and workshops in Great Britain. The report 14 published in 1899, the report for the year 1898, talked about the observation o f lung disease in 15 individuals who had worked in asbestos manufacturing plants and about the "evil effects of 16 asbestos dust." 17 11. The medical literature o f asbestos disease mainly developed after the publication of a 18 case report in the British Medical Journal by Dr. Cooke, a pathologist in Britain in 1924. This 19 was called, "Fibrosis of the Lungs Due to the Inhalation o f Asbestos Dust." Dr. Cooke reported 20 on the death of a 33-year-old woman who had worked off and on in asbestos plants from the age 21 o f 13. According to Cooke, the scarring o f her lung tissues was largely attributable to the 22 inhalation o f asbestos in the course o f her work. There followed a number o f other reports in 23 British sources, and this is reflected as well in the United States in editorials o f the Journal of the DECLARATION OF BARRY CASTLEMAN, Sc.D. - 4 CPWiNDOWSYTemporwy Internet Files'ContentIE5\KPSOOEWZ\PLD-Caitlcman Declaration Flnal.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW VASHON, WA 98070 T elephone: 206.463.4408 F acsimile: 206.463.4470 1 American Medical Association, In one on January 14, 1928, called "Pulmonary Asbestosis," 2 reference is made to Cooke's case and other reports on the disease now called asbestosis. The 3 Journal of the American Medical Association recommended that further attention be paid to this 4 disease, as it may well be occurring in the United States. The Journal o f the American Medical 5 Association issued another editorial in 1930 about asbestosis, this time noting the asbestosis had 6 become a compensable occupational disease in Great Britain under the workers' compensation 7 law. The Journal of the American Medical Association was believed to have been read by 80% 8 of American physicians in those years, medical historians have written. Additionally, there were 9 additional reports of asbestosis published in the British Medical Journal, which is in every 10 medical library I have ever walked into. The reports mainly involved deaths of individuals who 11 were verified as having asbestosis by autopsy. 12 12. In 1930, a report was published by a physician, Dr. E.R.A. Merewether, and an 13 engineer named C. W. Price. Merewether and Price reported a survey that had been conducted 14 by the Factory Inspectorate in England, including 363 asbestos workers who were actively 15 employed. O f these individuals, 26% were found to have asbestosis. Merewether and Price 16 reported that the people longest exposed had the highest prevalence of the disease: 80% in 17 workers with 20 years or more in the industry. There were no cases o f asbestosis in individuals 18 with less than five years, and Merewether referred to that phenomenon that the disease was 19 delayed in appearance and developed gradually over a period of years. It could in seven years be 20 substantially developed in the most severe cases, but more often 11 years or more would elapse 21 before the disease had become largely developed in exposed individuals. This is the time from 22 the onset o f exposure. Merewether urged that workers be "educated to a sane appreciation of the 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - 5 C:\WTNDOWS\Tcmporary Internet Filcs\ContcntlE5\KPSOOEWZ\PLD-Castlcman Declaration Final.doc Bergman Senn Pageler & F rockt P.O. B o x 2010,17530 Vashon H ighway SW Vashon, WA 98070 TELEPHONE: 206.463.4408 F acsimile.- 206.463.4470 1 risk" to health posed by asbestos dust. Merewether's 1930 writings on asbestosis are among 2 those most often cited in the literature on asbestosis. 3 13. By 1932 there were 60 or more publications in print on asbestosis. These were noted 4 by way of reference in a bibliography published by the International Labor Organization in 1932. 5 These publications continued to emerge from many countries. The first cases of asbestosis in the 6 United States were reported in 1930. Asbestosis was also described in an article in the trade 7 magazine Asbestos in the United States in the March 1930 issue, amid numerous advertisements 8 from asbestos mining and manufacturing companies. 9 14. In 1932, the first case o f asbestosis in an asbestos product user was reported at a 10 conference held by the Industrial Commission o f Wisconsin, proceedings o f which were 11 published. Here, Dr. Albert Russell of the United States Bureau o f Mines described an 12 individual who had worked maintaining the insulations on pipes in a government hospital and 13 had been diagnosed as having asbestosis and had been compensated by the government for 14 disability sustained from this asbestos condition. This is the first published product user case. 15 There were other cases reported in the United States in 1933 by Philip Ellman and also reported 16 by Ellman in 1934 in The British Journal of Radiology. Wood and Gloyne reported in 1934 17 reported on cases o f asbestosis including a boiler riveter who would have been exposed to 18 asbestos because it was used as an insulation material on boilers. Wood & Gloyne's report was 19 called "Pulmonary Asbestosis: A Review o f 100 Cases." That was published in The Lancet, the 20 world's oldest medical journal, in 1934. The Lancet is, like the British Medical Journal, a 21 general medical journal published in England and available very widely in medical libraries in 22 the English-speaking world. This article was widely cited in subsequent literature. O f the 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - 6 C:\WTNDOWS\Temporary Internet Files\ContcntIE5\KPSOOEWZ\PLD-Castiernan Declaration Final.doc Bergman Senn Pageler & Prockt P.O. B o x 2010,17530 Vashon H ighway SW Vashon, W A 98070 T elephone: 206.463.4408 F acsimile: 206.463.4470 1 hundred cases o f asbestosis they reported on, the shortest duration of exposure in any case was 2 six months, in the case o f two women who had worked in an asbestos plant. 3 15. Literature on asbestosis was substantially developed by 1935. The disease was shown 4 to have a distinctive pathological appearance with asbestos bodies, types of scarring that would 5 form around the asbestos fibers trapped in the lung tissues. This was commented upon a great 6 deal by pathologists in the 1920s. The disease was shown to have an identifiable radiological 7 appearance on chest X-ray distinctly different from such diseases as TB and silicosis. The 8 disease was also characterized by shortness of breath, which would become more pronounced as 9 the individual became more seriously affected by the disease. 10 11 ALAN DOOLEYAND THE PENNSYLVANIA STUDY 12 16. In 1934 and 1935, the Industrial Hygiene Section of the Pennsylvania Department of 13 Labor and Industry published a report on asbestosis in the asbestos fabricating industry in the 14 state. This article was called Asbestosis. published by William B. Fulton and three o f his 15 coworkers at the Pennsylvania Department o f Labor and Industry. Alan Dooley, who would 16 become the Texas Company's lone industrial hygienist from 1947 through the 1950s and 1960s, 17 was one of Fulton's co-authors. 18 17. One-fourth of the workers examined by Fulton, Dooley and their team, had asbestosis. 19 Their article included an impressive bibliography of 125 references to asbestos-related disease 20 previously published in journals in the United States, England, France, Italy, Germany and other 21 countries. Among the references cited by Fulton, Dooley et. al. were the historic 1930 report by 22 Merewether and Price for the British government and the version published later that year in the 23 US in the Journal o f Industrial Hygiene. The Merewether reports made recommendations for the DECLARATION OF BARRY CASTLEMAN, Sc.D. - 7 CAWINDOWStTemporary Internet FileaNContenilESUCPSOOEWZiPLD-Castleman Declaration Fmal.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW Vashon, WA 98070 T elephone: 206.463.4408 F acsimile: 206.463.4470 1 control of asbestos dust in asbestos plants, recommended periodic medical examinations of 2 workers exposed to this dust, recommended dust suppression measures in processes involving 3 the use of asbestos, and noted the hazards o f asbestos insulation work in shipyards. The 4 Pennsylvania study was one o f the first surveys o f this kind in the United States similar to that 5 which had been done by Merewether and Price and published in Great Britain and the United 6 States separately in 1930. 7 18. The Pennsylvania study also included an effort to relate dose and response. The 8 authors had sampled the exposure o f the workers to dust in four asbestos plants, including one 9 that produced asbestos containing insulation known as 85% Magnesia, and found that, overall, 10 average concentrations o f dust could be broken down into three groups that varied from 4.64 11 million particles per cubic foot up to 44 million. Asbestosis was reported in all three groups, 12 with the prevalence and severity of disease greater in the more heavily exposed groups. But no 13 level o f exposure was found to be free o f the disease, including levels below 5 million particles 14 per cubic foot. In summary, in the Pennsylvania study at least 25% o f the workers were 15 diagnosed as having asbestosis and levels of exposure even below 5 million particles per cubic 16 foot were found to cause asbestosis. Alan Dooley, who would become Texaco's industrial 17 hygienist for many years, was a co-author o f this report. 18 19. In 1938, a study similar to the Pennsylvania study was done by the Public Health 19 Service, including an effort to account for workers who had been discharged before the Public 20 Health Service was admitted to the North Carolina asbestos textile plants to do the study. An 21 estimated asbestosis rate in the workplace was given as 27.5%, The report recommended that 22 dust exposure in asbestos plants be limited to 5 million particles per cubic foot. This guideline 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - 8 C5WINDOWS\Tcmporary Internet Files\Contenl!E5\KJ>SOOEWZVPLD*Ca8tleman Declaration Final.doe Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW Vashon, WA 98070 T elephone: 206.463,4408 F acsimile: 206.463.4470 1 was recommended as a tentative occupational exposure limit, though it was noted that the 2 Pennsylvania study had found cases of asbestosis at that level of exposure. 3 20. By the mid 1930s, cases o f asbestosis were found not only among workers in asbestos 4 fabricating plants, but also among users of some asbestos products, mainly insulation products 5 such as these used by insulation workers. 6 21. Another source of information about asbestos during this period was the National 7 Safety Council, a national organization founded in 1912 as management's response to the 8 industrial safety issue. Starting in the 1930's, the National Safety Council published numerous 9 articles, pamphlets and other materials concerning the hazards of asbestos. Many of the annual 10 NSC annual "congresses" included forums and discussions about dust disease. The 11 "transactions" of these meetings were automatically mailed to the industrial members. For 12 example, at the 21st Annual Safety Congress in 1932, Dr. Leroy Gardner presented a paper 13 entitled " The Effects of Mineral Dusts"that discussed asbestos dust as a lung hazard. 14 Subsequently, at the 23rd Annual Safety Conference in 1934, Dr. Gardner delivered another 15 paper entitled "Types o f Dust That Cause Occupational Diseases." That paper noted that "the 16 only other type of dust which is generally recognized as a cause of severe pulmonary injury is 17 asbestos, a silicate o f magnesium." 18 22. Records of the National Safety Council indicate that Texas Company officials were 19 members, participants and even newsletter editors for the Council going back as far as the 1930s. 20 For example, NSC documents from the early 1930s demonstrate that a Texas Company official 21 V.R. Currie was a Past General Chairman O f the Petroleum Section of National Safety Council. 22 23. By the late 1930s, at least one company in the oil refining business was well aware of 23 the dangerous propensities of asbestos and the existence of asbestos related diseases. In 1937, an DECLARATION OF BARRY CASTLEMAN, Sc.D. - 9 C:\WTNDOWS\Temporary Internet Fil\Content.IE5\KPS0OEWZ\PLD-Castleman Declaration Final.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW Vashon, WA 98070 TELEPHONE: 206.463 .+408 FACSIMILE: 206.463.4470 1 industrial hygienist for Standard Oil of New Jersey (Roy Bonsib, Chief Safety Inspector) 2 authored a document entitled Dust Producing Operations In The Production O f Petroleum 3 Products And Associated Activities. In my opinion, this report establishes the "state of the art" 4 concerning a variety of dust hazards in refining operations generally, including for asbestos dust. 5 For example, the Bonsib report described a variety of dust producing operations typically 6: occurring in petroleum refining operations, including the use of 85% Magnesia insulation (15% 7 asbestos) to insulate steam lines. It specifically stated that insulating 12 inch steam lines with 8 85% magnesia created "dust concentrations considered to high for working without adequate 9 protection." It also stated that "any atmosphere in which dust is visible to the naked eye is 10 certainly too dusty to be breathed with safety by human beings, and the wise, farsighted, human 11 employer will immediately start to decrease the dust content in any atmosphere where dust is 12 visible. " The Bonsib report identified asbestosis as a recognized disease and stated that asbestos 13 dust, with its fibrous particles, did not seem to be readily handled by the protective mechanism of 14 the lungs. The report also called for specific measures to reduce dust hazards in refineries - 15 including the use of respirators, the isolation of dusty processes and the use of wet methods of 16 operation to suppress dust at the point of its origin. 17 24. In addition to all of this information that was available and known in the industrial 18 health and the scientific community in the 1930s and 1940s, it cannot go without mention that 19 Texaco's own documents produced in this case, and others, contain a statement by Alan Dooley, 20 then Texaco's manager o f industrial hygiene, in a 1949 Industrial Hygiene Survey of the 21 Texaco's Port Arthur Works that indicates that he was well aware of the dangerous propensities 22 of asbestos and that it would cause injury to workers. Specifically, in a discussion in the report 23 about crushed 85% Magnesia insulation, Dooley made the following comment: "Asbestos dust, DECLARATION OF BARRY CASTLEMAN, Sc.D. - 10 C:\WINDOWS\Tcmporary Internet Files\ContenlIE5\KPSOOEWZ\PLD-CastIeman Declaration Fftutl.doc Bergman Senn Pageler & Frockt P.O . B o x 2010,17530 Vashon H ighway SW Vashon, WA 98070 T elephone: 206.463.4408 F acsimile: 206.463.4470 1 if inhaled in sufficient amounts and for a prolonged period, will cause a lung fibrosis termed 2 "asbestosis". 3 4 ASBESTOS AND LUNG CANCER 5 25. In 1935, another aspect o f the hazard of asbestosis was identified with the publication 6 of medical case reports of asbestosis in combination with lung cancer. The first such reports 7 were published by Lynch and Smith in the United States in 1935 in the American Journal of 8 Cancer and by Dr. Gloyne in Great Britain in Tubercle in two separate reports in 1935 and 1936. 9 In these reports, the question was raised that chronic irritation of the lung tissues from asbestos 10 might be producing cancer as well as lung scarring already well identified as an asbestos-related 11 phenomenon. 12 26. There were additional reports o f lung cancer in combination with asbestosis reported 13 by Egbert and Geiger at Yale in 1936, and Nordmann in 1938. An abstract of this last 14 publication appeared in the United States in the Journal of Industrial Hygiene & Toxicology, also 15 in 1938. The article was entitled "The Occupational Cancer o f Asbestos Workers." The German 16 author, Nordmann concluded that asbestosis was definitely related to lung cancer, that lung 17 cancer was in fact an occupational disease o f asbestos workers. Various features of the six cases 18 Nordmann knew o f were tabulated to justify that. Nordmann noted, among other things, that the 19 prevalence of lung cancer among autopsied victims of asbestosis was one in six both in Germany 20 and Great Britain. This was very much higher that the prevalence of lung cancer in the general 21 population, which tended to be more like 1% or several percent at most. The high rate of lung 22 cancer among people dying with asbestosis would be a most consistent finding around the world. 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - C:'V/TNDOWS\Tcmporary Internet Fika\ContentIE5\KPSOOEWZ\PLD-Cast!eman Declaration Final .doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW Vashon, W A 98070 T elephone: 206.463.4408 Facsimile: 206.463.4470 1 27. There were additional publications o f cases of lung cancer and asbestosis in 1939 in 2 the United States and in 1941 and 1942 in Germany. Holleb and Angrist reported in the 3 American Journal of Pathology on two individuals who had been pipe coverers (users of asbestos 4 products) diagnosed at autopsy as having both asbestosis and lung cancer. These were the first 5 cases o f cancer and asbestosis in users o f asbestos products published in the medical literature. 6 Holleb and Angrist tabulated a total o f 10 cases of lung cancer in combination with asbestosis 7 that had been published in the United States, Britain, and Germany. 8 28. O f special interest in this case may be the fact that articles linking asbestos and cancer 9 appeared in the Archives o f Industrial Hygiene and Occupational Medicine in the early 1950s. 10 Recently, volumes o f this journal from 1951 to 1955 containing a stamp bearing the name 11 "Texas Company were located in the library of Lamar University in Beaumont, Texas. The 12 March, 1952 edition o f this journal, which was in the Lamar library, contains and article by Dr. 13 Wilhelm Hueper entitled "Occupational Cancer Hazards In American Industries" . In the article, 14 Dr. Hueper discusses the excessive incidence o f lung cancer associated with asbestosis in a series 15 of 235 documented cases of asbestosis. 16 29. Dr. Wilhelm Hueper is an important figure in the history o f the knowledge of 17 occupational cancer and in the development o f the knowledge of asbestos hazards. In 1942, Dr. 18 Hueper published a book on occupational cancer called Occupational Tumors and Allied 19 Diseases, nearly 900 pages long. It included a lengthy section on asbestosis and cancer from 20 asbestos, in which a large number of references from the United States, Great Britain and 21 Germany were cited in support o f the view that asbestos most likely did cause occupational 22 cancer. Dr. Hueper made unequivocal statements the next year in the article called: "Cancer in 23 its Relation to Occupational and Environment" published in the Bulletin of the American Society DECLARATION OF BARRY CASTLEMAN, Sc.D. - 12 C:\WTNDOWS\Temporary Internet Files\ContentIE3\KPSOOEWZ\PLD-Castleman Declaration Final.doc Bergman Senn Pageler & Frockt P.O . B o x 2010,17S30 Vashon H ighway SW Vashon, WA 98070 Telephone: 206.463.4408 F acsimile: 206.463.4470 1 for the Control of Cancer. There, Hueper said that "asbestosis cancer of the lung" as he called it 2 then, was the newest proved occupational cancer of the lung, to be listed with the ones that were 3 already known up at that time. In the Journal of the American Medical Association (JAMA), 4 there appeared an editorial called "Environmental Cancer" in 1944, in which asbestos was listed 5 among agents known and suspected of causing occupational cancer. 6 30. In 1946, Dr. Hueper also published an article in the Journal of the American Medical 7 Association (JAMA) discussing asbestos and other cancer causing substances that were used in 8 industry. In 1944 and 1949, at the invitation o f the editors o f JAMA, Dr. Hueper wrote 9 editorials for JAMA that discussed asbestos as a cause o f lung cancer. Beginning in 1948, Dr. 10 Hueper became Chief o f the Environmental Cancer Section o f the National Cancer Institute 11 ("NCI"). . 12 31. Dr. Hueper's writings were widely known. For example, in an interview with 13 Newsweek Magazine in 1950, Dr. Hueper stated that the rising rates of lung cancer in urban 14 dwellers in this country could be attributable to the air pollution o f industrial carcinogens such as 15 asbestos. Dr. Hueper retired in 1964. In my opinion, during his tenure at the NCI, Dr. Hueper 16; was the federal government's leading official concerned with environmental cancer. Indeed, it 17 is my opinion that he was considered by many to be the world's foremost authority on 18 environmental cancer in the 1940s, 50s, and 60s. 19 TEXACO AND THE API 20 32. In the early 1940s, the American Petroleum Institute ("API"), one o f the primary trade 21 organizations of the petroleum industry, established a Medical Advisory Committee ("MAC"). 22 The Texas Company began sending its employees to meetings o f the MAC at least as early as 23 1945. Minutes from the May, 1945 meeting of the MAC show that not only were Texas DECLARATION OF BARRY CASTLEMAN, Sc.D. - 13 C:\WINDOWS\Tcmporary Internet FUesSCootentE5\KPSOOEWZ\PLD-Castletmm Declaration Final.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon Highway SW Vashon, W A 98070 TELEPHONE: 206.463.4408 F acsimile: 206.463.4470 1 Company officials on the Medical Advisory Committee, Dr. M.N. Newquist, a Texaco doctor, 2 was the chairman of the MAC'S Subcommittee on Carcinogenity. 3 33. The minutes from that May, 1945 meeting indicate that a literature review was 4 contributed to the MAC from the "Library o f the Technical and Research Division o f the Texas 5 Company". This document was entitled "The Carcinogenicity of Bituminous Compounds" and 6 dated April 30,1945. This literature review contained an abstract of the article published by Dr. 7 Hueper in June, 1943, "Cancer In Relation To Occupation And Environment." The abstract 8 stated that asbestos was a cause o f occupational cancer. 9 34. Additionally, in July, 1945, MAC Committee members also received a literature 10 review authored by H.H. Zuidema o f the Shell Oil Company that described asbestos as having 11 cancer producing ability. 12 35. API minutes continuously demonstrate that by the late 1940s and into the 1950s, there 13 were at least three Texas Company officials, Dr. Newquist, Allan E. Dooley (the same Dooley 14 that co-authored the Pennsylvania studies) as well as H.R. Warrick, regularly attending API 15 Medical Advisory Committee meetings. 16 36. It is my opinion that the API Medical Advisory Committee was aware of Dr. 17 Hueper's writings that asbestos was a cause o f cancer. In 1948, members o f the API's Medical 18 Advisory Committee received a memorandum that was a summary o f a paper presented by Dr. 19 Hueper on occupational cancer before the American Public Health Association. The summary 20 was sent by Clyde Berry, an Industrial Hygienist for Esso-Standard Oil Company to Dr. Mclver 21 Woody, Esso-Standard's Medical Director and, at that time, chairman o f the A PI's Medical 22 Advisory Committee. Mr. Berry's summary o f Dr. Hueper's presentation stated that recent 23 evidence had pointed out a definite correlation between cancer incidence and exposures to DECLARATION OF BARRY CASTLEMAN, Sc.D. - 14 C:\WINDOWS\Tcmporary Internet Files\ContentIE5\KPSOOEWZ\PLD-Castleman Declaration FinaJ.doc Bergman Senn Pageler & Frockt P.O . B o x 2010,17530 Vashon H ighway SW Vashon, WA 98070 T elephone: 206.463.4408 Facsimile: 206.463.4470 1 substances like asbestos. It was the practice o f the committee to circulate copies of 2 memorandums such as this to its members. API documents show that Allan Dooley 3 corresponded with Dr. M clver Woody, chairman o f the MAC, on the day after Mr. Berry sent his 4 memorandum on Dr. Hueper to Dr. Woody. 5 37. Additionally, in the early 1950s, Dr. Hueper was invited to appear at one o f the API 6 Medical Advisory Committee meetings. Then, in January 1953, another o f Dr. Hueper's articles 7 entitled "Environmental Cancers: A Review", originally published in 1952 in the journal Cancer 8 Research, was reprinted and circulated to members and associates of the Medical Advisory 9 Committee. This article pointed to asbestos dust as a carcinogenic agent for the development of 10 lung cancer. It also discussed an increased incidence o f lung cancer among persons with 11 asbestosis and discussed the underreporting in the medical literature o f "asbestosis cancer o f the 12 lung." 13 38. In 1955, another o f Dr. Hueper's articles describing asbestos as an occupational 14 cancer hazard was provided to the API. This article, "Occupational Cancer Hazards" was 15 written by Dr. Hueper for a U.S. Department o f Labor publication and was originally presented 16 to the National Petroleum Association in 1954. It was then circulated by a member o f the API's 17 Medical Advisory Committee to other members prior to a meeting o f the API's Medical 18 Advisory Committee and its Subcommittee on Carcinogenity in April 1955. API documents 19 show that Alan Dooley and Dr. Newquist were both listed as members o f that subcommittee at 20 that time. 21 39. In sum, it is my opinion that the medical and scientific literature established a definite 22 connection between asbestos exposure and the development o f lung cancer by the late 1940s. It 23 is my further opinion that members o f the API Medical Advisory Committee during the 1940s DECLARATION OF BARRY CASTLEMAN, Sc.D. - 15 C:\WINDOWS\Temporaiy Internet Files\Content.IE5\KPSOOEWZ\PLD-Castleman Declaration Final.doc Bergman Senn Pageler & Frockt P.O . B o x 2010,17530 Vashon H ighway SW Vashon, WA 98070 T elephone: 206.463.4408 F acsimile: 206.463.4470 1 and 1950s, including Texas Company officials, were aware that asbestos was a cause o f cancer 2 from the information provided to them through their activities with the API. 3 4 TEXACO AND THE INDUSTRIAL HYGIENE FOUNDATION 5 40. The Texas Company was also a member o f the Industrial Hygiene Foundation 6 ("IHF") between 1949 and 1959. This is confirmed by membership cards provided by the IHF 7 several years ago in discovery. These cards listed the dates o f membership o f the various 8 member companies o f the IHF over the years. 9 41. First established in 1936 under the name "Air Hygiene Foundation", this organization 10 provided a means for doing confidential studies and compiling medical, legal and industrial 11 hygiene knowledge for its member companies. The IHF was founded under the auspices o f the 12 Mellon Institute by a cross-section o f large industrial companies. IHF would become one o f the 13 principal research contractors used by the asbestos industry. Vandiver Brown, a Johns Manville 14 Company executive, initially described the IHF as "the creature o f industry and the one 15 institution upon which employers can rely completely for a sympathetic appreciation o f their 16 viewpoint." 17 42. The IHF conducted industrial hygiene research and medical surveys for various 18 asbestos companies and the Asbestos Textile Institute. The IHF also arranged closed informal 19 medical meetings among members in particular industries, not just the asbestos industry. There 20 were regularly published IHF medical, engineering and legal conferences. Through vehicles 21 such as confidential industrial hygiene surveys, annual conferences, and the Industrial Hygiene 22 Digest, the IHF provided a full compliment o f services to member companies. IHF meetings 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - 16 C:\WINDOWS\Temporaiy Internet FiIes\ContenUE5\KPSOOEWZ\PLD-Castleman Declaration Ftnal.doc Bergman Senn Pageler & Frockt P.O . B o x 2010,17530 Vashon H ighway SW VASHON, W A 98070 T elephone: 206.463.4408 FACSIMILE: 206.463.4470 1 were covered by trade journals as well as newspapers like the New York Times and Wall Street 2 Journal. 3 43. The Industrial Hygiene Digest is a particularly important publication. This digest, 4 printed and distributed monthly to IHF member companies, contained literature abstracts from 5 all the major medical, engineering, chemical and toxicological journals o f the day. Through the 6 Digest, member companies such as Texaco, were advised of the most important industrial 7 hygiene studies of the day including during the period 1949 to 1959. Among the many abstracts 8 of medical reports on asbestos, the Digest contained a case report of asbestosis in an autopsied 9 insulation worker in 1950 and an epidemiological report of asbestosis in a cohort of insulators 10 with more than 20 years in the trade, in 1957, contemporaneous to the time that Texaco was a 11 member o f the IHF and was receiving the Digest. 12 44. Between 1949 and 1959, the Industrial Hygiene Digest published numerous other 13 abstracts that reporting that asbestos was injuring workers by causing asbestosis and cancer. 14 Three particular reports are illustrative: 15 45. In August 1949, the Digest reprinted an abstract o f JAMA's editorial solely on 16 asbestosis and lung cancer unsigned but authored by Dr. Hueper. The abstract stated the 17 following: "Records o f English, American and German physicians and the Annual Report o f the 18 Chief Inspector o f Factories in England for 1947 show that the occurrence of cancer o f the lung 19 is related to pulmonary asbestosis. This relation is supported by the following observations: (1) 20 the incidence rate of cancer o f the lungs in asbestosis patients is 10 to 15 times as high as among 21 the general population. (2) the male-female ratio is more nearly equal than it is for the general 22 populations, which indicates that and environmental and evidently occupational carcinogen 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - 17 C:\WINDOWS\Tcmporaiy Internet Filcs\Content.lE5'KPSOOEWZ\PLD-Castleman Declaration Final.doc BERGMAN SENN PAGELER & FROCKT P.O. B o x 2010,17530 Vashon H ighway SW VASHON, W A 98070 T elephone: 206.463.4408 F acsimile: 206.463.4470 1 tended to equalize the incidence rate o f cancer o f the lungs for both sexes. Recent experimental 2 observations support this interpretation of the clinical evidence." 3 46. It should also be mentioned that the original JAMA editorial from 1949 discussed the 4 dangerous propensities o f asbestos for "asbestos consuming industries". Certainly, oil refining 5 would have to be considered in that category. 6 47. In 1952, the Digest published an abstract o f an article entitled "Asbestosis Associated 7 With Bronchiogenic Carcinoma" from the Archives of Internal Medicine. The abstract provided 8 that: "Investigators have found carcinoma in 7.5 to 14.8 percent o f cases of asbestosis... the 9 opinion is suggested that "the silicate in asbestos must itself be carcinogenic. It establishes an 10 additional reason for preventive measures in the use o f asbestos." 11 48. In 1955, the Digest contained in abstract from the article "Mortality from Lung Cancer 12 in Asbestos W orkers^ by R. Doll and published in the British Journal o f Industrial Medicine in 13 April, 1955. This study reported that among 18 asbestos textile workers out o f a cohort o f 105 14 asbestos textile workers, 18 died from lung cancer. O f those 18,15 o f the workers had 15 underlying asbestosis. In an editorial published shortly after Doll's study was published, the 16 prestigious British medical journal the Lancet editorialized that Doll's study confirmed that lung 17 cancer is an occupational hazard o f workers regularly working with asbestos. 18 49. IHF records also show that Dr. Newquist o f Texaco became a member o f the medical 19 committee of the Industrial Hygiene Foundation in 1955. Joining him as an appointee o f this 20 committee in 1955, was Dr. Kenneth W. Smith, then medical director of the Johns Manville 21 Company. While his activities on the medical committee are not specifically known from the 22 documents available to date, in my opinion, Dr. Newquist's involvement on the Medical 23 Committee demonstrates an active level o f participation by Texaco in the IHF. DECLARATION OF BARRY CASTLEMAN, Sc.D. -1 8 C:\WlNDOWS\Temporaiy Internet Files\ContcntIE5\KPSOOEWZ\PLD-Castleman Declaration Fmal.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighw ay SW VASHON, W A 98070 TELEPHONE: 206.463.4408 F acsim ile.- 206.463.4470 1 2 3 ASBESTOS AND MESOTHELIOMA 4 50. The disease mesothelioma o f the pleura was attributed to exposure to asbestos or 5 asbestosis starting in 1943 with the report o f Dr. H.W. Wedler in Heidelberg. Between 1943 and 6 1960, there were additional reports in the German literature as well as British literature. The 7 case reports that appeared prior to 1960 are annotated and cited by way o f reference in Chapter 2, 8 table 5 o f my book. Dr. Wedler was the first to state that he believed die pleural cancers were 9 occupational cancers, and his work was prominently cited in the United States in the 1940s. 10 Other German pathologists starting with Leicher in 1954 would identify peritoneal mesothelioma 11 as an asbestos disease. 12 51. O f special note is the study by Dr. H.B.Eisenstadt and Dr. F.W.Wilson in the Journal- 13 Lancet in 1960. Dr. Wilson was a medical doctor employed by Texaco at their Port Arthur 14 facility. The study reported on two mesothelioma cases among Port Arthur refinery workers, one 15 o f whom had asbestosis. One o f the workers was a Texaco refinery employee. The report noted 16 that, "the etiologic association o f asbestos and mesothelioma has been repeatedly discussed in 17 the literature", citing references from the US, the Netherlands, Germany, and Italy. It did note 18 that not all investigators agreed that asbestos predisposed to the very uncommon malignancy of 19 the pleura, but that the patient's history o f asbestos exposure "alerted the suspicion o f the authors 20 in the second case." 21 52. A major report o f pleural mesothelioma came from South Africa by Wagner and his 22 coworkers, published in the British Journal o f Industrial Medicine in 1960. Within a very short 23 time it was widely accepted: that asbestos did cause mesothelioma; that levels o f asbestos DECLARATION OF BARRY CASTLEMAN, Sc.D. -1 9 C:\WINDOWS\Teinporary Internet Files\Content.IE5\KPSOOEWZ\PLD*Castleman Declaration Final.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW VASHON, W A 98070 TELEPHONE: 206.463.4408 F acsim ile: 206.463.4470 1 exposure present from environmental exposure as well as occupational exposure were sufficient 2 to cause mesothelioma. 3 53. In 1964, Dr. Irving Selikoff and his coworkers published a mortality study in JAMA 4 showing that there was a substantial excess of occupational cancer and deaths from asbestosis 5 among people involved in the insulating trades. A group o f workers who installed insulation and 6 removed it regularly was found to have 45 deaths from pulmonary cancer in a group where only 7 six or seven such deaths would have been expected. There were four deaths from peritoneal and 8 pleural mesothelioma in this cohort, and this was described as a very rare disease and a 9 substantial excess over what would have been expected. There were also 12 deaths from 10 asbestosis in this work force. The study also noted that the symptoms of these disease might not 11 become manifest until decades after the exposures. 12 54. Subsequently, later in 1964, at an international conference held in New York and 13 published in 1965, Selikoff and coworkers reported that around 80% o f the people who were in 14 the insulating trade had developed asbestosis by the time they had been in trade for 20 or 30 15 years or more. At the conference in New York, British researchers Newhouse and Thompson 16 presented a report on 76 deceased mesothelioma patients and an equal number o f "controls", 17 based on interviews with relatives. Their report showed strong evidence that mesothelioma 18 patients were far more likely to have had occupational, household, or neighborhood exposure to 19 asbestos than the comparison patients who died from other causes at the same hospital. 20 CONCLUSION 21 55. On the basis of the aforementioned facts, it is my opinion that by the late 1940s, there 22 was actual knowledge by Texaco that persons who worked with and around asbestos dust 23 generated from asbestos containing materials used in refining operations would become sick DECLARATION OF BARRY CASTLEMAN, Sc.D. - 20 C:\WINDOWS\Temporaiy Internet Files\ContentE5\KPSOOEWZ\PLD-Casdeman Declaration Final.doc Bergman Senn Pageler & Frockt P.O. B ox 2010,17530 Vashon H ighway SW Vashon, W A 98070 T eleph o n e: 206.463.4408 F acsim ile: 206.463.4470 1 with asbestos related diseases; that by 1960, Texaco was aware that asbestos was associated with 2 mesothelioma as reported by one of their own doctors in the L ancet. Moreover, it is also my 3 opinion that the Selikoff study in 1964, eliminated any doubt that asbestos was a cause o f pleural 4 mesothelioma. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - 21 C:\WfNDOWS\Teinporaiy Internet Files\Content.IE5\KPSOOEWZVPLD-CasUentan Declaration Final.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW VASHON, W A 98070 T e l e p h o n e : 206.463.4408 F a csim il e : 206.463.4470 1 2 I declare under penalty of perjury that the foregoing is true and correct. 3 Executed this 22nd day o f October, 2003 at Garret Park, Maryland. 4 5 BARRY I. CASTLEMAN, Sc.D. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DECLARATION OF BARRY CASTLEMAN, Sc.D. - 22 C:\WINDOWS\Tetnporaiy Internet Files\Content.E5\KPSOOEWZVPLD-Castletnan Declaration Final.doc Bergman Senn Pageler & Frockt P.O. B o x 2010,17530 Vashon H ighway SW Vashon, WA 98070 TELEPHONE: 206.463.4408 F acsim ile: 206.463.4470