Document gbOe4j7M3da1QMeLvqVOq24MG
FILE NAME: Metropolitan Life (ML)
DATE: 1994
DOC#: ML324
DOCUMENT DESCRIPTION: Dr. Abrams RE Intimidation; Direct Testimony by Mr. Motley
TOO'd 06TZ*ON XH/X1 9Z-ZI 96/2.Z/90
05814
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01 02 02
03 03 04 04
05 05 IN
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IN THE CIRCUIT COURT OF KANAWHA COUNTY NEST VIRGINIA
KB: ASBESTOS
Civil Action
21
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22 23 23 5815
01
0021
02 03 03 04 04 05 05
WITNESS: SAMUEL LISH
TOO
(800) 621--1026
I-N-D-E-X Voluaft XXXI EXAMINATION
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HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
relative to the health hazards of insulation
2
products. At the committee's first meeting they
3
should establish a policy, establish a program to
4
implement the policy, and establish a budget.
5
BY MR. MOTLEY:
6
Q.
Now, Doctor, I want to turn to a
7
totally different area.
8
MR. GARRARD: Mr. Motley, am I
9
correct that at this point -
10
MR. MOTLEY: Yes. I'm sorry.
11
Ladies and gentlemen of the jury,
12
from now until I say otherwise, or the Judge says
13
otherwise, I'm going to be discussing the case
14
against Metropolitan Life and not these other
15
folks.
16
BY MR. MOTLEY:
17
Q.
Doctor, what did I just hand
18
you?
19
A. I didn't catch that.
20
Q. What did I just hand you?
21
A.
You handed me what is called,
22
Diatomaceous earth, pneumoconiosis, California,
23
1952, a brief summary of some items of public
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9
10
11 12 13 14 15 16 17 18 19 20 21 22 23
health interest.
Q* Tell the ladies and gentlemen of the jury who generated that document, who put it together.
A.
I did.
Q*
You did?
MR. McKENNA: Excuse me.
see the document?
=
Could I
5309 .
MR. MOTLEY: Plaintiffs' Exhibit
MR. McKENNA: Judge, may we approach. (Bench conference.) MR. McKENNA: Judge, this is a document that purports to summarize many of the same claims he put in his article. And before Mr. Motley gets going too much with it, I would object to the document going into evidence if he plans on moving it into evidence.
I object to it going into evidence if he is going to move it into evidence. I also would object to the witness reading from the document.
Now, if he wants to use it to refresh
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
(Open court.)
2
BY MR. MOTLEY:
3
Q*
You were the chief of the Bureau of
4
Adult Health from 1947 through 1952; is that
5
correct ?
6
A. Correct.
7
Q.
Now, how did the document in front
8
of you, Plaintiffs' Exhibit 5309, come into
9
being? How was it created, for what purpose?
10
A. I put it together. I wrote parts of
11
it, put other items together, simply to put
12
together all the salient facts about the
13
diatomaceous earth situation.
14
Q.
What did you do with it once you
15
finished it?
16
A.
Well, I left it with the Bureau of
17
Adult Health, and I gave it to my superior at the
18
time, Dr. Dyar, and I believe that was it.
19
Q. Was it in the nature of a report?
20
A. Yes, it was. It was a summary of
21
the whole thing putting together all the major
22
events of that period.
23
Q.
Who was your superior?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
A.
Robert Dyar, who was -- D-Y-A-R --
2
he was the chief of the division of preventive
3
medical services of the California State Health
4
Department, and my bureau was a bureau under him.
5
Q.
Why did you prepare a report and
6
give it to Mr. Dyar?
7
A.
I simply wanted him to know about it
8
and transmit it to whoever needed to take action
9
on it. If action were, if further action was
10
necessary, I simply wanted to put the facts on
11
record.
12
Q.
And did you prepare that in the
13
course of your official business as chief of the
14
Bureau of Public Health?
15
A.
Oh, yes, yes, of course. It was all
16
typed there in my office, or in. our headquarters
17
there.
.
18
Q. You left California in 1952;
19
correct?
20
A. That's right, yes.
2 1
Q.
And you said you wanted to leave
2 2
some history of what had occurred. Why did you do
23
that? Why did you want to leave a history of what
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
21 22 2 3
had occurred?
A*
1 thought it important that people
should know it.
Q*
And you mentioned something about
action that was about to be taken or was being
taken. What did you mean by that?
A.
Well, of course, by that time -- we
had, of course, up to this point we had been
discussing what further action to take on the
situation since the diatomaceous earth silicosis
episode had gotten into the public press and was
causing a lost of concern.
And one of the proposals that we were discussing was to do a definitive industry-wide study of the health problems of the diatomaceous earth industry. That was the main action that came out of this, actually, and that study was done subsequently.
Q.
I hand you a copy of an article,
entitled "Diatomaceous Earth, Pneumoconiosis," 1954 .
A. Yes. All right.
Q. Did you prepare that?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
A*
I did. And this was a paper I
2
delivered at the National Convention of the
3
American Public Health Association in 1953 and
4
then was printed in May of 1954 in the American
5
Journa. 1_ of Public Health .
6
MR. McKENNA: Your Honor, can we
7
approach the bench?
8
(Bench conference.)
9
MR. McKENNA: This is another
10
rendition of what happened at California. We
11
seem to be having a lot of other renditions and
12
aren't getting to what he has got to say, but
13
this is another article he has published about
14
this subject matter.
15
MR. MOTLEY: Judge, I should be
16
allowed to present the fact that this man
17
memorialized at or about the time of these events
18
these matters to show his credibility.
19
.
JUDGE MacQUEEN: I'm not sure that
20
your objection is not with some foundation. I
2 1
think at this point it's premature. Let me hear
22
the background.
23
MR. McKENNA: But they are putting
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
it up on the TV screens.
2
MR. MOTLEY: Judge, if the man had
3
written an article on asbestos disease, I could
4
show the jury the fact that he had written an
5
article on asbestos disease.
6
MR. McKENNA: I don't mind you
7
asking him whether he wrote an article about it;
8
but then to flash it up in front of the jury or
9
try to show it to them,. I think, is
10
improper.
11
JUDGE MacQUEEN: Get it qualified
12
before you put it up. It's admissibility is
13
there.
14
MR. MOTLEY: I am not trying to
15
admit it.
16
JUDGE MacQUEEN: Okay.
17
(Open court.)
18
BY MR. MOTLEY:
19
Q. Dr. Abrams, in addition to this
20
article "Diatomaceous Earth, Pneumoconiosis"?
21
A . Yes.
22
Q. And your report, Exhibit 5309, have
23
you in more modern years also published articles
HERBERT ABRAMS, MD'-- DIRECT BY MR. MOTLEY
1
in the literature that restate part of your
2
experiences with Johns-Manville and Metropolitan
3
Life in California from 1947 to 1952?
4
A*
Yes. Some years later I wrote an
5
account of the episode somewhat differently, but
6
basically an account of that episode for the
7
2H2i.
Medicine.
8
They were publishing at that time a series of
9
items in the history of occupational medicine, and
10
I was invited to write up that history for that
11
journal. I forget what year it was, bu.t it is in
12
my curriculum vitae.
13
Q
I want you to -- so you have, in
14
addition to testifying here today -
15
A. Yes.
16
Q.
-- in 1952 you wrote down what
17
happened; correct?
18
A . Yes.
19
Q. In 1954 youpublished in the
20
scientific literature what happened?
2 1
A. Yes.
22
Q. And you have recently published part
23
of what happened; correct?
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1581
Yes. Well, the history item I published two years ago, and then, of course,
more recently the publication that you referred
to earlier, the hidden history.
Q-
Who was Anthony J. Lanza?
A.
Well, Dr. Lanza was a physician who,
when I met him for the first time, I think was in
1947, was at that time, I believe, medical
director, or words, title to that effect with the
Metropolitan Life Insurance Company. And he was
an authority in occupational medicine, had
wr^tten one or more books and many articles. And, of course, I had read much of his material
and had known about him before I met him.
Q.
Who was William Shephard?
A
William Shephard was a physician in
California with offices in San Francisco whom I
met when I arrived there to start the job as
chief of the Bureau of Adult Health, about the
summer of 1947, and he was introduced to me in
more than one capacity; that is, he was a
prominent physician in occupational health matters. He was also a vice-president of Met
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
Life, and he was also an officially appointed
2
consultant to my bureau, to the State Health
3
Department and my bureau. So that from that time
4
on I had many encounters with him.
5
Q.
Describe for the ladies and
6
gentlemen of the jury the nature of the
7
Johns-Manville operations at Lompoc, L-O-M-P-O-C,
8
California.
9
A. Yes. Lompoc islocated in Santa
10
Barbara County, and there they have what at that
11
time was, perhaps even today, the largest deposit
12
of diatomaceous earth in the world. And the
13
production facility was essentially a mine and a
14
m ili for obtaining diatomaceous earth out of the
15
earth and making it into various products for the
16
market.
17
Q. When did you first learn that there
18
was such a facility at -- Lompoc?
19
A. Lompoc, yes.
20
Q. Like cowpoke?
2 1
A. L-O-M-P-O-C.
22
Q. When did you firstlearn of the
23
existence of the Johns-Manville facility at
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
Lompoc ?
2
A*
When I arrived in California in the
3
summer of 1 9 4 7 .
4
Q*
Did you make any effort to find out
5
anything about the operations at Lompoc?
6
A. Yes. Early on, not long after I
7
reported for work, people on my staff first told
8
me about this interesting operation. I frankly
9
had not known of diatomaceous earth. I may have
10
heard something about it, but I really didn't
11
knowing about it until I got there, and it was a
12
very interesting situation, one that I was not up
13
to that time acquainted with.
14
And I shortly thereafter made a trip
15
down with members of my staff to visit. We were
16
on very friendly terms.
17
The Johns-Manville company had a
18
part-time medical physician there at the plant,
19
he was half-time, Dr. Anderson.
20
And, of course, Dr. Reginald Smart,
21
whom I met later, was a pulmonary or lung
22
specialist in Los Angeles, who was a consultant
23
to the Manville company as well as to other
HERBERT ABRAMS, MD --DIRECT BY MR. MOTLEY
1
companies making diatomaceous earth products.
2
And I met him shortly thereafter as well and had a
3
friendly relationship with both of them over a
4
period of years.
5
Q.
Would you look at page two of your
6
report, please, the report that you said you
/"! prepared, left with your boss?
8
A.
Yes.
9
Q*
In August .1947 , a combined medical
10
engineering study of the industry was proposed by
11
the Bureau of Adult Health -
12
MR. McKENNA: Excuse me, Your Honor.
13
May we approach?
14
JUDGE MacQUEEN: Yes.
15
(Bench conference.)
16
MR. McKENNA: What are you reading?
17
Are you reading from this?
18
MR. MOTLEY: Yes. When you were
19
just last up here you said I could use it to
20
refresh his recollection. I haven't offered it
2 1
yet.
22
MR. McKENNA: Judge, I never heard
23
somebody refresh somebody's recollection by
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9
10
11 12 13 14 15 16 17 18 19 20 21 22 2 3
reading them something. You usually ask them about the events, and then if they have trouble recalling it -- I mean, is he just going to read this document?
JUDGE MacQUEEN: Yeah. fair objection. Just ask him.
That's a
MR. MOTLEY: I move the admission of it, Your Honor. He said it was an official report prepared in the course and conduct of his business, and he left it there for the purpose of allowing a recitation of the history for the purpose of guiding those who come behind him.
JUDGE MacQUEEN: If you want to build this history based on what he knew, why don't you just ask him those questions?
MR. MOTLEY: Because I want to put the report in evidence, Judge.
JUDGE MacQUEEN: Let's assume that I receive the report. I'm not sure that I will let it go to the jury when they deliberate this case anyway, because it is not unlike any other report. But if the witness is present, why don't you just ask him what he knows?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 4 5. 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
21 22 23
MR. MOTLEY: I would be glad to, Judge. Why don't we just plod right along.
I would like Your Honor to - Are you keeping time? JUDGE MacQUEEN: Yes. . (Open court.) BY MR. MOTLEY:
Q.
Dr. Abrams, do you recall whether in
1947 any study of the diatomaceous earth industry,
and particularly Lompoc, was proposed by you and
others in the Bureau of Adult Health?
A.
Yes. In about 1947, shortly after I
came and learned about the situation, I proposed
a definitive study be done, and members of my
staff who had already been in touch, had been
there before, told me that Dr. Lanza had assured them that --
Hearsay.
MR. McKENNA: Excuse me, Your Honor.
JUDGE MacQUEEN: I am going to allow it, not for the truth, but to show why he went about the process of doing whatever it was he was going to do.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23
BY MR. MOTLEY:
Q*
Will you repeat what you said,
please, sir?
A.
That I was assured by Dr. Lanza
through members of my staff that no study was
necessary, that they had adequate staff
themselves, they had their own industrial
hygienists, their own physicians, and that the
situation was well under control. Essentially
that was the message I got.
I should add, if I may, I had one other comment to that, and that is that I was told at the very same time by Drs. Anderson and Smart that they were going to write this up for publication because it was a fascinating story, as anybody who has ever encountered this would agree, and that they had autopsy material and Saranac Lake had done studies on it, and so on, and they were soon going to write it up for the medical literature.
Q.
Write it up meaning publish it?
A.
Publish it in the medical
literature, yes.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
Q*
At some point in time, sir, did you
2
have a meeting at the Mark Hopkins Hotel in San
3
Francisco?
4
A.
Yes, I did. It was around that
5
time. I would have to check it to be sure. I
6
think I mentioned it in here somewhere.
7
Do you want me to describe that?
8
Q.
Yes, on page two, I believe. But you
9
can't read it. Just refresh your memory.
10
MR. McKENNA: Your Honor, they're
11
doing it again.
12
JUDGE MacQUEEN: He can look at it
13
to refresh his recollection.
14
MR. McKENNA: I don't mind him
15
refreshing his recollection, but I would like to
16
hear his recollection first and have him say he
17
can't recall the event.
18
JUDGE MacQUEEN: He said he needed
19
to recheck for the date. He can do that.
20
MR. McKENNA: I don't mind him doing
21
that either, but I would like his recollection.
22
He seems to be reading the document.
23
JUDGE MacQUEEN: Go ahead, Doctor.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
You can tell us when this was.
2
THE WITNESS: It is almost a half a
3
century old, and I need to refer to my notes on
4
these things.
5
JUDGE MacQUEEN: Go right ahead.
6
THE WITNESS: Thank you.
7
A.
Well, I can quote this. During the
8
same period we and, I and others had been led to
9
believe that the situation was under control,
10
there were no new cases arising.
11
Q.
Why no new cases?
12
A.
All the cases we had heard about
13
were old cases, people who had died or were still
14
perhaps living but had contracted the disease
15
years ago.
16
And I was invited to a meeting which
17
occurred at the Mark Hopkins Hotel in San
18
Francisco.
19
Q.
Is that where they have that
20
world-famous Sunday brunch?
.
2 1
A.
I think so. They had a beautiful
22
rug in the lobby and all of that. It was a very
23
nice hotel on top of a hill.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23
Q* by the way?
A. find out.
What did you have to eat that day, I will have to look at my notes to
Q.
I thought maybe you had some eggs.
A.
Anyway, it was on an occasion when
Dr. Lanza was visiting with management
representatives and they were talking about
promoting a therapy or a treatment for
pneumoconiosis, silocosis, of aluminum powder,
which was an idea that was being promulgated
during those times. It turned out to be not
effective, but, anyway, they were talking about it then.
And I asked the management people at the lunch table there --
Q.
You mean Manville?
A.
Yes, the Johns-Manville management
people -- whether they had ever had a
compensation claim for the disease in California
and whether any such claim had been paid.
And the Johns-Manville man said no compensation award had ever been made by his
HERBERT ABRAMS, MD - DIRECT BY MR. MOTLEY 1591
1
c ompany.
2
There was also a Great Lakes Carbon
3
Corporation man, they were the second leading
4
company producing diatomaceous earth, and he said
5
that only one claim had been paid recently, and he
6
felt that this was an unjust claim.
7
MR. McKENNA: Your Honor, can we
8
approach again?
9
JUDGE MacQUEEN: Yes.
10
(Bench conference.)
11
MR. McKENNA: He is reading the
12
document to the jury. We were following, and he
13
is almost reading it verbatim. Why can't he
14
testify to his recollection, and then if he says
15
I forgot a date, then he can refer to the
16
document. Why just --
.
17
JUDGE MacQUEEN: He said it is
18
almost a half a century ago, I need to refer to
19
my notes to give the testimony. That's enough,
20
isn't it?
21
MR. McKENNA: I don't think it is.
22
JUDGE MacQUEEN: Does he have to
23
make a mistake first?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
MR. McKENNA: No. They are putting
2
him up here to testify about these events, and I
3
would like to hear his testimony. Now, if he
4
says I forgot what happened at that meeting, okay
5
6
JUDGE MacQUEEN: That is what he said
7
essentially.
8
MR. McKENNA: Let him read the thing
9
and then testify about it. He is reading the
10
words to the jury.
11
MR. MOTLEY: I have never in my life
12
anywhere, anywhere in 37 states where I have tried
13
cases heard such a ridiculous objection. You
14
wouldn't allow an orthopedist to come up here and
15
read from his medical records to refresh his
16
recollection?
17
JUDGE MacQUEEN: I am going to allow
18
it.
19
MR. McKENNA: If you want to
20
stipulate that he can't recall anything and he is
2 1
just going to read the document, let's do that.
22
(Open, court.)
23
THE COURT: Go ahead.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1593
1
MR. MOTLEY: This is Plaintiff's
2
Exhibit No. 5301. I move its admission,
3
Your Honor. It's the one I showed you.
4
THE COURT: This is not a
5
preadmitted document? .
6
MR. MOTLEY: It was not
7
preadmitted. I believe it was produced by
8
Metropolitan. We didn't want to get into these
?
diatomaceous exhibits until Your Honor had a
10
foundation from the witness.
11
MR. McKENNA: Since Mr. Motley made
12
the statement in front of the jury, that was not
13
produced by Met Life.
14
THE COURT: Is your question about
15
its authenticity?
16
MR. McKENNA: No, Your Honor.
17
THE COURT: Okay. It will be
18
received.
19
MR. MOTLEY: Mr. Parker is still
20
here if there is.
2 1
MR. McKENNA: I reserve my objection
22
on relevance and hearsay and 403?
23
THE COURT : Absolutely.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
BY MR. MOTLEY:
2
3
Q*
Now, Doctor, this is an old letter
4
on Metropolitan Life Insurance Company
5
letterhead, February 7th, 1952.
6
Show who it is to: Dr. Lanza,
7
chairman, Institute of Industrial Medicine,
8
New York University.
9
Show who wrote it: W. P. Shepard,
10
third vice president, signed Bill.
11
Are those the folks you were talking
12
about earlier?
13
A.
Bill Shepard, yes. William Shepard.
14
Q.
Now, up, please. Had you ever seen
15
this until last year or two?
16
A.
That's right, I never saw this until
17
many, many years later after the whole thing was
18
over.
19
Q All right. And this is about the
20
diatomaceous earth situation we havebeen talking
21
about; correct?
22
A. Exactly.
23
Q. "Unfortunately, we shall have to do
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 without Halverson's skilled guidance." Who is
2
Halverson, do you remember?
3
A*
Yes. Wilton Halverson was the
4
director of the California Department of Health
5
Services. He was the top person. And I think he
6
was sick at the time. So he was not available.
7
Q. All right. "Until after the
8
February 26th meeting. However, Malcolm
9
Merrill" -- who is that?
10
A.
Malcolm Merrill was deputy director.
11
Q*
"Is still acting director and he is
12
not only able but perhaps even more discerning
13
than" --
14
A.
Hal Halverson.
15
Q
"than Hal in a situation of this
16
kind. I am going over to see him this afternoon
17
to be sure he is fully aware of the nuances of
18
the situation so that he can keep Abrams in
19
l i n e ."
20
A.
Very flattering to.me.
21
Q.
Would you be the Abrams they wanted
22
to keep in line?
23
A.
I'm the one, apparently.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
2 1 22 23
Q.
Boy, you old trouble maker you, what
were you up to back then? What was going on in
j
February of 1952 that would cause Mr. Shepherd to i want to keep you in line?
MR. McKENNA: Judge, could we have one other paragraph read of it?
thing.
MR. MOTLEY: Which one?
I'll read the whole
.
MR. McKENNA: MR. MOTLEY: MR. McKENNA:
The third one. The third one. Yep.
MR. MOTLEY: Focus in on that one.
"Abrams just telephoned to say that if the industry insists" -
A.
He would be willing.
Q*
"" "he would be willing to do the
survey jointly with the Industrial Hygiene
Institute. I ran across him at lunch at Stanford
yesterday and subtly put a bug in his ear. It might not" -- I can't read that -
A. I can't make that out.
MR. McKENNA: That he might not be able to get the full and willing cooperation
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
of--
2
Q.
-- "he might not be able to get the
3
full and willing cooperation of the industry on
4
his own." Is that what it says? You have a
5
better copy.
6
MR. MCKENNA: I can't read that
7
part.
8
BY MR. MOTLEY:
9
Q.
Okay. Next, please.
10
-
"He blustered a bit and maintained
11
that it was his legal prerogative, but apparently
12
after thinking it over and talking with Merrill,
13
he changed his mind." Okay.
14
Now, generally what was going on
15
back in the early winter of 1952 that would cause
16
Mr. Shepard to want to keep you in line?
17
A.
Yes. Well, what was happening was
18
simply, you see, the whole diatomaceous earth
19
situation exploded in the media, it was in the
20
newspapers and radio and so on and, of course, it
2 1
had been set off by the original article in
22
Search Magazine, which was the publication of the
23
California Tuberculosis and Health Association.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
That was the old name for what is today called
2
the California Lung Association, the Christmas
3
Seal people.
4
Anyway, so this was in the public
5
media at the time, was causing a furor, and we in
6
the health department along with Dr. Shepard, so
7
on, were talking about what should be done.
8
And we were mainly talking about the
9
necessity of doing a definitive study of this
10
P^klem so as to establish all the facts and get
11
all of the facts on the table for the public, the
12
working people, the industry and so forth.
13
And that's what we were talking
14
about at that time.
15
Q.
Now, you say there had been an
.16
article written about this Johns-Manvilie
17
facility?
18
A.
What was that question?
19
Q.
You said before this "keep you in
20
line" letter was written, there had been an
2 1
article published?
22
Oh, yes. Well, quite a few
23
articles .
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 159?
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
* ,jn going to hand you something. Tell me if this is from your original files?
A.
This is what started it off. This
was the Search -- the cover of Search Magazine,
and the title of the article was "Death By Dust," and this is an aerial picture of the
Johns-Manville diatomaceous earth deposits.
Q. a furor?
And is that what, as you say, caused .
A. Yes, that's what started it.
Then, of course, the newspapers and all picked it up from that article, and it kept going for quite a while.
Q. Now, are you familiar, personally
familiar with this "Death By Dust" study article?
A.
Oh, yes.
Q.
Tell us how you personally are
familiar with it?
A.
Well, the writer of the article at
that time, a young man named Robert Goe, G-o-e,
came to me -in his role as a writer for the
magazine, which was the publication of the
California Tuberculosis and Health Association.
HERBERT ABRAMS, MD - DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7
8
9
10
11 12 13 14 15 16 17 18 19 20 2 1
22
23
And he was interested in writing things about problems of interest having to do with the lungs .
Since they were a lung association and tuberculosis at that time was declining in incidence -- it had been, of course, the No. 1 cause of death in the U.S. in the early part of the century, but it was beginning to decline - they were looking for other ideas.
So I told him about this very interesting industry in California, the diatomaceous earth industry, which even today most people have never heard about. And he was very interested.
And I suggested who he might call
on, go visit the plant and so on. I had been
there a number of times, I knew all the people, I
gave him an introduction to those people.
And so then he subsequently did pay
a visit down there to get information about a
foreign article. And he -- shall I -
Q.
Well, let me ask you this.
A.
-- talk further about it or what?
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
Q*
Well, why did this article, "Death
2
By Dust," cause a furor?
3
A.
Well, of course, the headline alone
4
is enough to disturb people, I think. But I
5
think the evolution of it was interesting, and I
6
have to go into that to really --
7
Q* Are you personally knowledgeable
8
about the evolution of this article?
9
A.
Oh, ye s . Yes.
10
Q.
All right. Please tell us.
11
. A..
Well, i'll try to make it brief. My
12
thought in referring him to that subject was that
13
essentially it was an interesting problem, it was
14
a dust that used to cause silicosis.
15
Remember that in 1932, there had
16
been a big survey done and published by
17
Dr. Leggie and others in California in which they
18
examined all the workers and found an incidence
19
silicosis. But that was many years early.
20
Q. 1932?
2 1
A.
'32, right.
22
Q.
Twenty years earlier.
23
A.
Right.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1602
1
Q*
In the meantime, Lanza told you no
2
new cases and the Manville people told you no
3
Workers' Compensation.
4
A.
Exactly. When I came, I became
5
aware --
6
MR. McKENNA: Objection, Your Honor.
7
THE COURT: Sustained.
8
BY MR. MOTLEY:
9
Q.
Excuse me, it was sustained.
10
.
Who told you there were no new cases
11
of silicosis out of that Manville plant?
12
MR. McKENNA: Objection. Leading,
13
asked and answered.
14
THE COURT: Yeah. He's already
15
answered that.
16
A.
Well, my information on no new cases
17
occurring came from Drs. Anderson and Smart who
18
were on the scene there -
19
MR. McKENNA: Asked and answered.
20
A.
Anderson was plant division, and
2 1
Smart was a consultant.
22
THE COURT: Which is what he
23
testified to
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
A.
And of course, when Dr. Lanza came
2
out, he simply supported that and repeated that.
3
So that I was given the definite impression that
4
it was a problem that they used to have, but was
5
well under control. Manville being a huge
6
company, they had their own industrial hygienist
7
who did dust counts, they had their own doctors
8
and so forth, they had all the resources to
9
control it.
10
I'm trying to remember where I was
11
now. Talking about -
12
Q.
I'm just trying to not take all day
13
to do this.
14
A.
I understand.
15
Well, very quickly, the evolution of
16
this, Goe -- I then told Goe about it, I said,
17
Look, it's an interesting story you ought to
18
write up because in essence it's a success story,
19
it's a story of how a serious occupational
20
disease was controlled, and it was a disease
2 1
affecting mainly the lungs and all that. So it
22
fitted in with their interest.
23
Q.
Why did you tell him it had been
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
controlled and was a success story?
A.
Because I was given that impression
by the authorities of Manville including their consultants and all that.
Q.
Go ahead.
A.
He went down there, and he was
impressed with an atmosphere of secrecy.
He didn't get past the front
office. They didn't allow him to see the plant, all that.
And he began to hear that there were
cases of silicosis and silicotuberculosis in the local hospital and so on.
MR. McKENNA: Hearsay.
THE COURT: BY MR. MOTLEY:
Sustained.
Q.
Excuse me, Doctor, you can't tell
the jury what somebody else told you. But let me
ask you this. article?
Is all of this in this magazine
A.
I think so essentially.
Your Honor. MR. McKENNA: I don't believe it is,
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1605
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
A.
That's in there. I would have to
reread it to make sure of every word.
Q.
Is it in your report?
A.
Yes, I believe so. It's in there.
Q.
All right.
A.
But the main point I'm getting at is
when he got back, he did write an article -- and
I have the galley proof of it somewhere. He did
write an article which was innocuous, not this
article. He wrote an article which was innocuous.
He told the interesting story of how diatomaceous earth originated from these
one-celled animaIs and the skeletal remains and
all that business, and the useful uses of diatomaceous earth and all of that.
And when he came back, he read that article to Dr. Shepard.
Q. Of Met Life?
A. Of Met Life, yes. And Shepard
persuaded him not to write it saying -
MR. McKENNA: Objection, hearsay. THE COURT: Sustained.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
A.
Now, that story is in here too.
2
Saying to him essentially why don't you write --
3
MR. McKENNA: Judge, can we approach
4
the bench?
5
MR. MOTLEY: Your Honor, this is in
6
a magazine that was published. He can rely on
7
the magazine.
8
(At sidebar:)
9
MR. MOTLEY: It's all in his
10
report.
11
.
MR. McKENNA: Judge, the bottom line
12
is he's obviously testifying about hearsay
13
matters. The fact they are in his report doesn't
14
remove the fact that they are hearsay.
15
And I haven't read this article in a
16
while, but it's my recollection that it doesn't
17
recite all of these matters.
18
THE COURT: It does not?
19
MR. McKENNA: It does not. Now, if
20
it does, I would like Mr. Motley., who is offering
21
the testimony, to show me where it says it.
22
THE COURT: The fact it was printed
23
in a magazine, what difference does that make?
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23
MR. MOTLEY: BY MR. MOTLEY:
Okay.
day.
Q*
Doctor, it's getting late in the
The jury has been patient with us.
A. Sure.
Q.
Let's get to the bottom line; okay?
A. All right.
Q* As a result of what waspublished in this article, did you come to understand or learn that what you were told that there were no new cases was true or false?
MR. McKENNA: Leading, Judge.
THE COURT: Overruled.
A.
I came to learn it was false.
Q.
You were a public health official
and you were told this, and it was false?
A.
That's right. This article was an
eye-opener to me, and others on my staff as well,
just as it was to the public.
Q.
Did you come to understand that what
you were told by the Manville employees, that
there were no Workers' Compensation awards made,
was that true or false?
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
A. False, false.
2
Q* Did you, Herbert Abrams, personally
3
verify, try to verify some of what was in this
4
article?
5
A.
I did. Subsequently I went down to
6
the Industrial Accident Commission files and
7
painstakingly found something over 30 cases,
8
records of Workers' Comp claims.
9
Q*
10
been 30?
So instead of zero, it should have
11
A.
More than that actually.
12
Q.
Was there-a law in California,
13
Doctor, at the time that required the employer to
14
report the existence of Workers' Comp claims?
15
A.
Yes, that was another thing. The
16
law was simply that any injury on the job which
17
caused absence from work beyond one day had to be
18
reported to the State Department of Industrial
19
Relations, Division of Labor Statistics, by both
20
the employer and the physician attending the
21
worker.
22
And up to that point, there had
23
been, I think, only one or two cases. But after
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
the article came out and the publicity, two or
2
three more were reported.
3
Q*
Now, Doctor, did you make a proposal
4
to anyone after you found out these matters that
5
you have said you found out that any kind of
6
study be done in 1952?
7
A*
Oh/ yes. As I mentioned earlier, I
8
proposed that a definitive study of the industry
9
be made.
10
.
Then there was discussion as to who
11
should do it. And as I think we mentioned,
12
Dr. Shepard at one point suggested the Industrial
13
Hygiene Foundation. But since they are an
14
industry-supported organization, there was
15
objection to that.
16
Q.
By whom?
17
A.
Well, not only I objected, but
18
Dr. Malcolm Merrill, the deputy director, State
19
Health Department, objected. We felt it had to
20
be an unbiased study. While we were casting no
21
aspersions on the Industrial Hygiene Foundation,
22
since they were totally supported by industry, we
23
didn't think it would be appropriate.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
Then the question came up of, well,
2
could they participate in it partly along with
3
the State Health Department, and various
4
combinations were proposed.
5
And finally I myself suggested we
6
call in the United States Public Health Service
7
as an impartial governmental agency to do the
8
study, and that ultimately was done and a report
9
on that was made some years later.
10
Q.
You told the jury earlier that you
11
had been led to believe that an article by
12
Dr. Smart and Dr. Anderson was going to be
13
published on their experience at the Lompoc
14
plant?
.
15
A.
Yes. They told me a number of times
16
that they were working on it, and one of these
17
days, months, they would report because they had
18
a lot of clinical and pathological material on
19
the cases that they had seen.
20
Q.
When, if ever, was that published?
21
A.
I think that was published
22
finally -- I have forgotten. 1953, perhaps. I
23
don't remember. We have the article somewhere
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
here. I believe I mentioned it in here too.
2
No. It wouldn't be in here. It was
3
published, though, around that time.
4
Q.
Would you look at your report again,
5
sir.
6
A.
Yes.
7
Q.
Do you see"VI"?
8
A.
Okay.
9
Q.
What is tha.t called?
10
MR. McKENNA: Objection, Your Honor,
11
can we approach?-
12
(At sidebar:)
13
THE COURT: Is that the conspiracy?
14
MR. MOTLEY: Fraudulent concealment.
15
He went and looked at the records and found the
16
testimony. I can lay a further foundation. But
17
I ain't asking him the question. The question
18
I'm asking is what the name of it was.
19
MR. McKENNA: Judge, the only reason
20
why he's asking this question is to get this man
2 1
to say "fraudulent concealment" in front of this
22
jury.
23
He's not an expert on fraud, he's
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
appropriate foundation, what conclusions he
reached about it.
3
MR. MOTLEY: Okay.
4
(End of sidebar.)
5
BY MR. MOTLEY:
6
Q.
Do you have the page that begins
7
with paragraph "VI"?
8
A. Yes.
9
Q.
10
page .
Let me make sure we are on the same
11
A. "VI"?
12
Q*
Yes. Now, sir, did you undertake to
13
look at the records of Workers' Compensation
14
claims arising out of the diatomaceous earth
15
facilities ?
16
A.
I did.
17
Q.
Okay. And tell us what wasthere?
18
I particularly refer you to the claim of
19
Manuel Gonzalez?
20
A. Okay. Well, this is written up in
21
here .
22
Q.
Don'tquote from what's written up.
23
Just tell us what you did, first.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1615
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
A. the claim.
Oh, all right. It's an excerpt from
In those days, there was a stenographic report of every claim before the Industrial Accident Commission that was contested.
Q* doing?
You mean like what these folks are
A*
Yes, a court reporter, and they were
typed up. Of course, this was long before
computers and all. And they were filed by card
file, and you had to go through it manually in
the offices of the Industrial Accident Commission in Los Angeles.
And I found something like 30--some cases having to do with diatomaceous earth
claims. And this was one of them.
And in this particular one, the
interesting point was -- did you want me to
describe them, what I found in that case?
Q
Let me ask it this way. This was
out of the diatomaceous earth facility; correct ? A . Yes.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 .4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23
Q. Dr. Smart?
And this was the testimony of
A * Dr Smart had been the examining
doctor in this particular case.
Q.
Okay.
A.
For the company.
company, I should say.
For the insurance
Q. And you remember we talked earlier
about the public health principle of telling a
worker that something he works with can hurt him?
A.
Yes.
Q*
And you also said that as a public
health principle, if he's got a disease, you
should tell him that too?
MR. McKENNA: Leading, Your Honor. MR. MOTLEY: I'll rephrase it. THE COURT: All right. BY MR. MOTLEY:
Q*
Is there a public health policy,
sir > ii a man is diagnosed with asbestosis or
silicosis, what is the public health policy in
regard to telling him?
A.
Well, it's not only a public health
--r* -
V
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
policy, it's a good -- it's just a health policy,
2
a medical policy that if you diagnose something
3
in a patient, you should tell the patient what it
4
is. There is no question about that. It goes
5
back to antiquity.
6
Q.
Now, as a result of what you found,
7
did you determine whether or not Dr. Smart,
8
Johns-Manville's consultant, exercised good
9
public health policy if he found silicosis in
10
those workers or bad public health policy?
11
A*
N o . In that transcript of that
12
case, Dr. Smart is quoted as saying that he as a
13
matter of policy did not tell a worker what he
14
found on his examination, which was a physical
15
exam with a chest x-ray and so forth, he just did
16
not inform them, but he did inform the company in
17
this case, you see. He informed the company what
18
he found, but did not inform the worker.
19
Q.
Now, Doctor, in addition, when you
20
were looking at this particular claim or other
2 1
claims, did you find that Dr. Smart's policy had
22
stirred Up some interest by others?
23
MR. McKENNA: Leading, Judge.
; J
iTf
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
A.
No question about it -
2
THE COURT: I'll sustain the
3
objection.
4
Q
Did you find anything else of
5
interest in that file, sir?
6
A.
Well, the other thing of interest
7
was the insurance carriers who were present at
8
this hearing, the insurance companies, I have
9
forgotten their names, they then accused the
10
Dicalite or the Great Lakes Carbon Company, in
11
this case they were the defendants -- there were
12
two defendants actually, Great Lakes Carbon and
13
Johns-Manvil1e . These are insurance carriers.
14
MR. McKENNA: I'm sorry to
15
interrupt.
16
THE COURT: Just a second.
17
MR. McKENNA: I'm sorry to interrupt
18
the witness. Can we approach on this since he's
19
talking about another company now?
20
MR. MOTLEY: He just said and
2 1
Johns-Manville.
22
MR. McKENNA: Can we approach?
23
(At sidebar:)
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
MR. McKENNA: Here is the paragraph that is apropos. It involves Dicalite apparently and other companies where the insurance carrier and Workers' Comp carrier claimed there was fraudulent concealment from them because they hadn't disclosed to them the condition when the guy had this condition from 1940 or something and went on coverage. That has nothing to do with us. It has nothing to do with the issues in this case.
with you.
MR. MOTLEY: Excuse me, I'm agreeing
finish?
MR. McKENNA: Excuse me. Can I
them.
MR. MOTLEY: I can link it up with
(End of sidebar.) BY MR. MOTLEY:
Q.
Doctor, how many more of these
reports did you say you found? Did you say 37 or
30? I can't remember exactly how many you said.
A.
I would have to refer to my own
report to get the exact number. I don't have
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23
that here, but you may have a copy of it. My
publication, the American -- oh, here it is. I
have a copy of it right here. a minute.
I will show you in
I was able to find 32 claims for compensation for alleged diatomite pneumoconiosis -- diatomite is an abbreviation
diatomaceous earth -- which came before the commission between 1930 and 1951 inclusive. Now --
Q.
I want to be sure that we are not
misleading anybody here. There was a study done
of the diatomaceous earth facilities in the early '30s; correct?
A . That's right.
Q* And what you found to be untrue was the assertion that they had everything under control in 1950?
A Yes. That's right.
Q* All right. And in fact, cases continuing to occur?
therewere
A. Yes, that's right.
MR. MOTLEY: Your Honor, did you say
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
you wanted to reserve so we don't take up the jury's time the admission of this report?
THE COURT: BY MR. MOTLEY:
Yes.
Q*
Doctor, explain to the jury how you
reacted to -- personally to Dr. Shepard's -
first of all, how would you describe
Dr. Shepard's reaction to that "Death By Dust" article?
A.
Well, he was very angry. He accused
the writers of yellow journalism. He threatened
to fire -- have them fired, and he told me that
over the telephone.
Q.
This is Bill Shepard of Met Life?
A.
Of Met Life, yes. That he would
have the editor of the journal fired, it was
yellow journalism and that kind of thing.
Q*
fact, sir, is there not a copy of
a letter he wrote -- Mr. Shepard wrote to the
Tuberculosis Society in your report?
A.
Yes. That's in there too.
Everything is in there.
Q.
After the article, "Death By Dust ii
.tt..
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1626
what is the newspaper called in San Francisco? There are two of them, I think.
A.
Well, the San Francisco Chronicle is
the morning paper, and I have forgotten the name
of the afternoon paper.
Q.
Were there any articles published by
the San Francisco Chronicle?
A
Oh, yes. Nathan Hale, who was a
reporter for the Chronicle, wrote a series of
articles, the heading of which was a story of a
dangerous dust, something like that. I have
clippings of it somewhere. are in here or not.
I'm not sure if they
Q. moment.
Let's turn to D r . Lanza for a
A.
Sure .
Q.
Did you
Dr. Lanza about your
Lompoc silicosis?
ever have conversations calling the disease at
with
A.
Yes. On one of his trips, he and I
and half a dozen other professionals in the field
were sitting around sort of casually, socially
discussing this. And I referred to the disease
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1627
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
as diatomaceous earth silicosis.
And he became suddenly very angry,
pounded the table and in very loud voice said,
That's not silicosis. That's pneumoconiosis.
And I could only infer one thing
from that explosion, because silicosis is exactly
what it is, it's silica, and it's called that
today as well as those days.
But he insisted on my avoiding the use of the term silicosis.
Q*
As a result of the newspaper
ar"h^cles and the San Francisco Chronicle article,
did things kind of get activated at the Lompoc plant ?
A . Oh, yes.
Q.
Tell the jury what happened.
A.
Well, everybody was disturbed by it
and feeling that something should be done, and
then we began to have meetings about developing a
definitive study, as I mentioned.
Q.
And in your report, do you outline
in some detail what you proposed be done to try
to help the workers at Lompoc?
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1628
one other important thing was that the union there went out on strike, and
health protection was one of their major issues.
They had some wage issues as well, but health
protection became a major issue at the same
time. So that also was a part of that picture.
It was quite a stormy period for a while.
0*
My question, sir, is did you make a
recommendation to your officials, your superiors
and detail how you thought a study should be done?
A.
Q.
A.
Q.
A.
Fundamental
Yes. And is it contained in your report? I think it is, if I -I know it is . Here it is "VII, Prospectus for a Industry-Wide Study on the Health
Aspects of Diatomaceous Earth." And I outlined
what should be in the study and all that, and I
gave a little history of the disease and so on.
MR. MOTLEY: Your Honor, you admitted earlier today Exhibit 199.
MR. McKENNA: Judge, can we
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1629
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
approach?
(At sidebar:) MR. McKENNA: Judge, this is a document of January 15, 1935, this is before the man got out of medical school. He has nothing to do with this, to my knowledge. I don't understand where he's going with this.
MR. MOTLEY: Your Honor admitted it. I think I am entitled to ask him his opinions as a public health specialist about that, of the statements made in there.
THE COURT: Like? MR. MOTLEY: Oh, I would ask him to pick out the two statements, because somehow my copy I looked at last night has gotten yanked from my notes.
MR. McKENNA: "The menace of ambulance-chasing lawyers in combination with unscrupulous doctors."
them?
MR. MOTLEY: That's not one of them. MR. McKENNA: That's not one of
THE COURT: Go ahead. I'm going to
H
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
allow it.
(End of sidabar.) BY MR. MOTLEY:
Q.
Doctor, I want to turn your
attention to the Industrial Hygiene Foundation
for a moment. Exhibit 199 you have in front of
you there -- can you show the first page,
please? -- is dated January the 15th, 1935.
Now, can you show who was in
attendance? Johns-Manville was there. from Met Life was there.
Dr. Lanza
MR. McKENNA: Mr. Motley, why don't you read the second paragraph on page one and then read everybody who was there?
MR. MOTLEY: Your Honor, I'm glad to read the whole thing, but every time I try to read something, we run up to the bench, so I'm
kind of afraid to read anything. winded running up to the bench.
I'm getting
THE COURT: Go ahead.
it right.
MR. McKENNA:
BY MR. MOTLEY:
Well, maybe if you did
*.? *
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Q*
Do you see that, sir, that
Dr. Lanza, and there were all kinds of other
people there?
A.
Yes, I see it. Yeah.
Q.
And it says, "For example, only two
forms of dust, namely, free silica and asbestos,
are definitely known to produce disabling
fibrosis of the lung." When you began practicing in California in 1947, was that true?
A.
Well, there are and there were other
dusts, but they were not as prominent. Asbestos
and silica were considered the most important.
But there is cotton dust, byssinosis and coal
dust, of course, coal workers pneumoconiosis.
That was known at that time too, but it wasn't -
didn't receive as much publicity in the
United States at the time.
Q.
Are you familiar, sir, with the
history behind the Industrial Hygiene Foundation?
A.
Somewhat.
course, sure.
This is part of it, of
Q.
Do you know what caused the
formation of the Industrial Hygiene Foundation?
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1632
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
A*
it was concern about the lawsuits
that they were beginning to get for
pneumoconiosis, silicosis, asbestos disease and
so on, and they thought they ought to get
together and do something about it.
MR. McKENNA: Objection, hearsay, Your Honor. He's reciting the contents of the documents in a summary fashion that's inaccurate.
MR. MOTLEY: Your Honor, that is contained in that document.
THE WITNESS: That's just history.
THE COURT: BY MR. MOTLEY:
Overruled.
2*
fact, it's in this document,
isn't it, the 1935?
A. Yes .
Well, this meeting was convened on December 12th or a letter was sent out December 12, 1934.
Q. Worried about lawsuits and menaces, what does the next page show? Expert testimony, and they suggested eliminating the jury?
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
MR. McKENNA: Judge, if i could
request that if we are going to read from the
3
document, we read from it rather than have
4
Mr. Motley just pick out a few words here and
5
there. I think under the rule of completeness,
6
he ought to be reading the document to the jury.
7
MR. MOTLEY* Let's read the whole
8
document, now.
9
MR. McKENNA: He doesn't have to
10
read the whole document.
11
MR. MOTLEY: I'll flip you for which
12
you want me to do.
13
THE COURT: Hold on. If there is
14
some matters that you want read for completeness,
15
you need to tell him what they specifically are.
16
MR. McKENNA: All I'm objecting to,
17
Your Honor, he can read any part of it he wants,
18
but what I want him to do is if there is a
19
sentence he wants to read, let's read the whole
20
sentence, let's not take two words out, flash
21
them in front of the jury and -
22
THE COURT: It's a fair request.
23
MR. MOTLEY: The reason I didn't, he
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
came up a minute ago and objected to me reading that part.
THE COURT: You don't have to argue your case now. Instead of picking out words, read a whole sentence.
MR. MOTLEY: read the whole thing.
I got permission to
Doctor, look on page two that they
were worried about.
,
It appeared that among the problems common to all industries were the following:
"The menace of ambulance-chasing lawyers in combination with unscrupulous doctors. The uncertainties surrounding diagnosis of any of the various forms of pneumoconiosis are so many that a question of facts is presented in every case. Expert testimony can be produced by both plaintiff and defendant and it is for the jury to decide whose experts are correct in their interpretations. In making this decision, the jury is not likely to favor the opinion of the experts produced by the employer.
"The desirability of making various
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
3 4 5 6 7 8 9
10
11 12 13 14 15 16 17 18 19
20
21 22 23
dust diseases compensable under properly drawn Workers' Compensation laws. One of the speakers stated that 'the strongest bulwark against future disaster for industry is the enactment of properly-drawn occupational disease legislation.' Such legislation would eliminate the jury and empower a medical board to pass upon the existence of the disease and the extent of the disability; eliminate the shyster lawyer and the quack doctor since fees would be strictly limited by the law; and permit the correcting of initial mistakes in the making of awards by providing for hearings to reduce or eliminate awards if proof could, be adduced that the claimant was not disabled or that the extent of his disability had been overestimated.
"Problems of ventilation, dust collecting and elimination, and respiratory devices.
The establishing of standards for dust counting and particle size determination, for the taking of x-rays for diagnostic use, and for the interpretation of the markings on the
'TFSZi
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9
10 11 12
13 14 15 16 17 18 19
20
2 1 22 23
films so produced.
"At the close of the discussion, a Mr. Kurtz, vice president of the American
Refractories Corporation, made a motion that Mr. William P. Yant, chairman of the meeting,
appoint a nominating committee who would nominate a group of individuals to serve as a committee for the formulation of ways and means to bring about effective cooperation of some character between the various industries for seeing and combatting those"--
MR. McKENNA: Meeting.
MR. MOTLEY: combatting those" -
-- "meeting and
MR. McCONNELL: Phases. MR. MOTLEY: "Phases"? MR. McKENNA: Phases.
MR. MOTLEY: -- "of the dust problem common to all. This motion was carried and a
nominating committee appointed which retired, and upon returning presented to the meeting the names of seven individuals to act as such committee.
"No other names having been placed
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9
10
11
12
13 14 15 16 17 18 19 20 21 22 23
in nomination, the following were elected to act as the committee and report back to the various industries and groups represented at the meeting or to whom the invitation had been originally extended. "
Then it's got the list of names. I can't pronounce that name, no way. Why don't you look at the names.
MR. Mc KENNAj Vandiver Brown. MR. MOTLEY: Vandiver Brown representing asbestos. "I explained to the other members of the committee that I had been sent to the meeting solely as an observer" - MR. McKENNA: Could you read the names you skipped over, please? THE COURT: He left it up there long enough for the jury to do that. It's all right. Go on. MR. MOTLEY: "I explained to the other members of the committee that I had been sent to the meeting solely as an observer and had no authority from Johns-Manville Corporation to
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7
8
9 10 11 12 13 14 15 16 17 18 19
20
2 1 22 23
accept membership on the committee and certainly none from the asbestos industry as a whole.
"I was urged, however, to meet with the committee, and agreed to do so on the condition that I might withdraw if approval of my serving in that capacity should not be forthcoming.
"I pointed out that members of the asbestosis industry did not care to be associated in the minds of the public or of employees with those industries whose problem was silicosis, and that for this reason I felt there might be some opposition to having a representative of the asbestos industry working with them.
"I did indicate, however, that I realized numerous aspects of our problem were the same and that if cooperation could be worked out without an undue amount of publicity, Johns-Manville Corporation and perhaps the asbestos industry as a whole would in all likelihood be willing to cooperate. It was the opinion of the committee that this condition would not present any insuperable difficulty.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
"Mr. Roger Hitchins, president of
2
American Refractories Institute, was made
3
chairman of the committee, which held a meeting
4
Tuesday evening after the close of the
5
symposium. Mr. Hitchins was designated to meet
6
with Mr. Weidlein of the Mellon Institute and ask
7
him to make a proposal in definite and concrete
8
form as to the manner in which the Mellon
9
Institute might be able to assist the various
10
industries for a fee of" -- is that $125,000 or
11
$25,000?
12
MR. McCONNELL: $25,000.
13
MR. McKENNA: $25,000.
14
MR. MOTLEY: -- "$25,000. When this
15
proposal has been received and approved by the
16
members of the committee, it will be submitted to
17
the various industries with the recommendation
18
that it be accepted and that the various
19
industries or individual corporations agree to
20
stand good for a proportionate amount of the fee
21
not in excess of a definite specified sum.
22
"I gathered that the proposal which
23
would be made by the Mellon Institute would
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
2
3 4 5
6
7
8
9
10 11
12 13 14 15 16 17 18 19
20 21 22
23
include, among others, the following: "The compiling of a comprehensive
bibliography of books, treatises, publications dealing with any aspect of the dust problem, and the evaluation thereof.
"The compiling, digesting and correlating of data and information from various subscribing industries relative to their particular experiences.
"The drafting of approved Workers' Compensation legislation covering pneumoconiosis.
"The digesting of the laws of the various states which might affect the operations of industries presenting a dust hazard.
The outlining of problems requiring research or the establishment of fixed standards and the prevention of duplication of efforts and expenses along these lines.
"The interest with which the discussions were followed and the enthusiasm which greeted the proposal for a unified effort lead me to believe that the necessary support
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
be found for some sort of program along the
2
above lines. Vandiver Brown."
3
Do you know, sir, from your
4
experience who Vandiver Brown was?
5
A.
He was an executive of the Manville
6
Company, if I recall.
7
Q.
Did you see anywhere in that
8
document where they said, Let's tell the workers
9
they are getting sick?
10
A.
No, I didn't see that, no.
11
MR. MOTLEY: Your Honor, I'm getting
12
ready to go into another area. I don't know what
13
your pleasure is? Should I go into it now?
14
THE COURT: Go ahead.
15
MR. MOTLEY: Okay.
16
BY MR. MOTLEY:
17
Q.
Doctor, this is 4672.
18
MR. MOTLEY: Your Honor, it was
19
preadmitted.
20
BY MR. MOTLEY:
2 1
Q.
Doctor, the title of this is "Report
22
of the Physical Examinations and X-ray
23
Examinations of Asbestos Workers in Asbestos and
HERBERT ABRAMS, MD
DIRE.CT BY MR. MOTLEY
1
Thetford Mines, Quebec."
2
Okay. Did I ask you to review that
3
document for me?
4
A . Yes.
5
Q.
And do you see the signature of
6
Dr. Frank Pedley?
7
A. I d o , yes.
8
Q.
And the date is 1930?
9
A . Yes.
10
Q.
Doctor, tothis day, this is -
11
MR. McCONNELLi Sixty-four years.
12
MR. RION: 1994.
13
MR. MOTLEY: Thank you, I knew
14
that. What is today's date?
15
MR. McCONNELL: April 19th.
16
A JUROR: April 19th.
17
BY MR. MOTLEY:
18
Q.
From 1930 until April the 19th,
19
1994, have you ever see seen that report?
20
A.
Sixty-two years ago, huh?
21
Q.
Sixty-four years ago.
22
A.
Sixty-four, yes.
23
Q.
Have you ever seen that report in
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1643
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
that form published in the medical literature?
No, I have not.
It says, "The report herewith presented deals with the examination of 141
employees of the Canadian Johns-Manville Company, Asbestos, Quebec, and 54 employees of the
Asbestosis Corporation of Canada, the
Keesby-Mattison Company and Johnson's Mine, all of Thetford Mines, Quebec."
Now, Doctor, generally were any cases of asbestosis found by Dr. Pedley in these workers?
A Q. A, Q. A. Q. nine
Oh, yes. Yes. What page would we find that? What was your question? What page would we find that on? Oh, it's near the end here. To save some time, look on page
A,
Yes, let's see.
Q.
Nine under "Lungs." They did a
complete physical including hearing, vision, so
on, and including the examination of lungs.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
By the way, have I shown you
2
documents to indicate who paid for this?
3
I don't recall, but it seems to me I
4
did see that.
5
MR. McKENNA: Objection, Your Honor,
6
unless he's going to show the jury the
7
documents.
8
MR. MOTLEY: Glad to.
9
This is preadmitted, Your Honor.
10
January 7th, 1932. Plaintiff's Exhibit 5187.
11
January 7th, 1926. Excuse me. The
12
medical director of Metropolitan Life, I'm going
13
to read only this clause here. "That the board
14
directors pass a resolution at their meeting
15
yesterday that" -- I just can't read that. That
16
what ?
17
MR. RION: Authorized.
18
MR. MOTLEY: -- "authorized the
19
officers of the company to appropriate five
20
thousand dollars a year for five years for the
21
proposed survey to be made under the terms and
22
conditions approved by the medical division of
23
the Metropolitan."
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
22
23
Does that refresh your recollection
that Metropolitan Life paid for this?
A.
Yes.
MR. McKENNA: Objection. There is
no proof the survey they are talking about in
1926 has anything to do with this study in 1930.
It calls for speculation and conclusion.
that.
MR. MOTLEY: Well, let's see about What's this next one?
MR. MCCONNELL: 5190. MR. MOTLEY: Exhibit 5190. Report of the Activities of the Industrial Clinic, Montreal General Hospital, for the year September 1st, 1929, through September 30th.
"The asbestos study is nearing completion. 102 individuals were examined clinically and by x-ray at the plant of the Johns-Manvilie Company and Asbestos, Quebec, in July 1930. Other groups were examined at Thetford Mines in September 1930."
Does this report I gave you make reference to those two locations, the Thetford Mines?
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23
A*
Yes, it does.
groups of workers.
There were two, two
MR. RION: There is some more here.
MR. MOTLEY: "This study is being carried on with the cooperation of" -- guess
who? -- "the Metropolitan Life Insurance Company, and it is expected that valuable information on the subject of asbestosis will be forthcoming. It is hoped that permission to publish the results will be obtained."
Mow, Doctor, again, have you ever seen this study published in the medical literature ?
A No, it was not published.
Q*
Do you know, sir, whether or not
Dr. Pedley -- this is Exhibit 5193 -- asked Met
Life for permission to publish it?
MR. McKENNA: Objection,
.
Your Honor. Calls for conclusion, speculation.
The document speaks for itself.
THE COURT: I'm going to let him
review the document and respond to the question.
A.
This is a letter from Dr. Frank
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Pedley, assistant professor, industrial hygiene, Department of Public Health and Preventive
Medicine, McGill University, Montreal. The
letter is to Mr. N. L. Burnette, Esquire,
Metropolitan Life Insurance Company, Ottawa, Ontario.
Q
Page two, sir.
A . What's that?
Q.
it says "Study of Asbestosis."
A.
Yes. Well, here, on the second
page -- it's a long letter -- he says, "In
. cooperation with the Metropolitan Life Insurance Company, a survey of two companies mining and
milling asbestos was made in July and September
of 1930. Physical examination of some 150 men was made, together with chest x-rays, and an
interesting state of affairs was disclosed, which was reported to Dr. A. J. Lanza of the
Metropolitan Life Insurance Company, but to date
permission has not been secured to publish the results of the study."
Q.
Now that we clarified that, let's go
back to the report. Go back to page nine do you
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23
see page nine now, sir?
A. Yes, i have it here in front of me.
Q- Okay. Can you tell us, sir, whether
or not any cases of asbestosis were found in this
examination by Dr. Pedley paid for by Met Life?
A*
Yes* Well, he says, "Of the 101 men
examined by me at Asbestos, only four suffered
from definite first stage pneumoconiosis." Then
he says, "These will not be considered on account of the doubtful diagnosis.
"Of the 40 men examined by Drs.
Stevenson and Wyatt, 14 were diagnosed as first
stage pneumoconiosis. I am including the 17 men
examined by Drs. Stevenson and Wyatt and
subsequently reexamined by me in my group of 101."
Then he discusses why in one group there was less -- a lower incidence of pneumoconiosis than the other.
And it says, "Of the 54 men examined at Thetford Mines, 24 were diagnosed by x-ray as suffering from pneumoconiosis. Of these, four were diagnosed as probably first stage
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
asbestosis."
paragraph ? MR. McKENNA: Could we read the full
THE COURT: I'm sorry?
A.
Then he gives the table or details
of those diagnoses.
THE COURT: Go ahead and read the remainder of the first paragraph. Mr. Motley, why don't you do it?
MR. MOTLEY: he want me to read?
Your Honor, what does
THE COURT: first paragraph.
The remainder of the
first page? THE WITNESS: The remainder of the
MR. MOTLEY: "The much lesser incidence of pneumoconiosis".
second.
THE WITNESS: Well, it's the "Of the 40 men examined," is that it?
MR. MOTLEY: You read that. He wants you to read the next paragraph.
THE COURT: Next couple of
sentences
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1650
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
THE WITNESS: "The much lesser incidence of pneumoconiosis in my group of men may seem surprising, but it must be remembered that the x-ray negatives were not red by the same man. In my group, the x-ray diagnoses were made by Dr. Meriwether of Pitcher, Oklahoma, and in other group the interpretations were by Drs. Wyatt and" -- is that Meriwether? I can't quite read it.
"Further, the group, crossed out, examined by Drs. Stevenson and Wyatt were in general older than those in my group." BY MR. MOTLEY:
Q.
Now, if you would turn to page 13,
s^-r
the problem is these are obliterated.
Down at the bottom of the page, sir, is bigger
numbers, 1076. Can you look at page 1076?
A.
Yes, I have that.
Q.
I believe they total up the cases on
that page, do they not?
A*
Yes. In the table, are you
referring to that number?
Q*
No. Just read the first sentence.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1651
1
A*
As to occupations of 41 drillers --
2
Q*
No* You are on the wrong page.
3
A.
1076 I thought you said.
4
Q*
I did. The first sentence.
5
A*
"It will be noted that of the 141
6
men examined at Asbestos, 17 were diagnosed as
7
stage asbestosis, while of the 54 examined
8
at Thetford Mines, 2.1 were diagnosed as first
9
stage asbestosis and three as second stage
10
asbestosis."
`11
Q.
Go ahead.
12
A.
"This is not to be interpreted as
13
indicating an excess hazard in Thetford Mines.
14
The increased incidence of pneumoconiosis in
15
Thetford Mines is simply a reflection of the
16
different distribution with respect to age and
17
length of service. Reference to Tables 1 and 2
18
recall the great differences in these two
19
things ."
20
Of course, the number of years of
21
exposure is important.
22
Q.
Now, would you look at the bottom of
23
the page as to occupation.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
A.
Yes. "As to occupations of 41
2
drillers, 13 were cases of asbestosis. Of 109
3
mill workers, 27 were cases of asbestosis. And
4
of 40 workers in the factory, only one case
5
showed x-ray evidence of the disease. Evidently
6
there is little difference in the hazard in mill
7
workers and drillers. The mill workers appear to
8
be exposed to far greater dust concentrations
9
than the drillers, and it's rather difficult to
10
understand the high incidence of asbestosis among
11
the drillers. However, it may or may not be of
12
interest to note that the drillers are
13
occasionally exposed to granite dust."
14
Do you want further reading or --
15
Q No, sir.
16
MR. McKENNA: Could you read the
17
next paragraph, next two sentences.
18
Q . Yes, sir.
19
A.
The next one. "None of the cases of
20
asbestosis appeared to suffer from disabling
2 1
symptoms. Programs the most common symptom was
22
shortness of breath, but less than half the cases
23
complained of this symptom." 11 of the 41 cases
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
complained of shortness of breath.
Q. Now, Doctor, look at page 1073. A. Okay.
Q* This is where they give the occupational histories. Do you see that?
A . Yes.
Q.
Would you look at thelast case of
stage one asbestosis.
A * Yes. The last worker listedhere is a pipecoverer working in a factory for four years.
Q.
How old was he when he got sick?
A.
He was 22. Age 22 at that point.
Q.
Now, Doctor, as a public health
specialist, is there any particular -- by the
way, what is a pipecoverer? Is it sometimes
called what?
A.
An insulator, a person applying
insulation materials.
Q.
Based on your knowledge of the
literature, had this been published, would this
^ave keen one of the earliest cases of asbestosis in an insulator?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
A.
2
Uh-huh.
Probably it would have been, yes.
3
Q
Doctor, do you draw -- is there any
4
significance in the finding of asbestosis in the
5
mines and mills where the asbestos is taken out
6
of the ground?
7
A.
Yes. This was, of course, done in
8
1930, a long time ago, and if it had been
9
published, it would hav.e been a valuable addition
10
to the literature that went to the doctors and
11
the industry and so on. It would have helped add
12
to our knowledge and, therefore, accelerated the
13
control of this condition.
14
Q.
Now, if the numbers work out to 18
15
out of 141 is 13 percent -- I would just ask to
16
you assume this -- and at Thetford, 21 out of 54
17
equals 44 percent, can you comment on that attack
18
rate?
19
A.
Well, they are both a high attack
20
rate.
21
Q.
How many cases of asbestosis should
22
you have?
23
A.
You should have none. It's a
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
totally preventable disease.
Q*
Now, Doctor, have you looked at some
of the publications of Dr. Lanza where he
discussed whether there was asbestosis? You saw
where they had asked Lanza if they could publish
in that one document; right?
A. Yes. Uh-huh.
Q.
I'm handing you a document which we
marked as Exhibit 4762. Do you see, this is
by Dr. Lanza?
A.
Yes. I see here that there is a few
paragraphs on asbestos here.
Q* He says, "Asbestosis, however, is
not found among asbestos miners."
A*
Yes. I see that.
Q.
How do you squarethat with this?
A.
And this is, what, 1940? It's ten
years after Dr. Pedley reported that significant
number of the miners got asbestosis.
Q.
Well, how do you square these
numbers with saying it don't happen?
A. square
You don't square it. It's not
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1656
Q*
Would you like to take a look at the
last page, sir, of Dr. Pedley's report. 1078 at
the bottom.
A * Yes. In general -
Q*
No, down at the bottom, sir. 1078.
A * Yes. I'm on 1078 here.
Q
Where it starts, "Conversation" -
A * Oh, "Conversation." "Conversation with physicians and mine managers in the asbestos regions indicated that no hazard to health was
suspected in connection with work in the asbestos
mining and milling industry."
.
Then he goes on to -
Q*
In other words, the people working
with it didn't know it was hazardous?
A.
Apparently so.
that it w a s .
But he demonstrated
Q*
Then what did he say?
A
Be says, "In general, it may be said
that the hazard of pneumoconiosis in the asbestos
mining and milling industry has been
demonstrated."
Q.
Okay. "But evidently the disease
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
does not incapacitate to any great degree and
apparently it is not particularly associated with
tuberculosis." Dr. Pedley?
That was the conclusion of
A . Correct, yes . Q* Now, this is Plaintiff's Exhibit 4772, Your Honor. Now, this is Dr. Lanza writing to the government.
MR. McKENNA: Could you give us the description of the document?
MR. MOTLEY: 4772, from Dr. Lanza to Mr. Manfred Borditch, February 10th, 1942. BY MR. MOTLEY:
Q
This is 12 years after Dr. Pedley
just said he had demonstrated asbestosis in the mines; correct?
A.
That's right. That's right.
Q
And here we have Mr. Lanza writing
the government in Massachusetts -- show them
Lanza signed it, Dr. Lanza. Show the date,
please, February the 16th, 1942, on Metropolitan Life's stationery.
"I have your letter of the 13th. I
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
think it is possible that this man may have
2
asbestosis. As you know, we find our cases of
3
asbestosis in those who fabricate asbestos and
4
not in those who mine it."
5
MR. McKENNA: Could we read the next
6
sentence too.
7
MR. MOTLEY: Sure.
8
"We have found evidence of it in men
9
who trim asbestos pipe moldings, shingles and
10
other material of this nature with a power saw. "
11
BY MR. MOTLEY:
12
Q.
Now, how do you square Dr. Lanza
13
twelve years after he gets this Pedley report
14
saying we don't find it in the mines?
15
A.
It's impossible to square it. It's
16
hard to understand it.
17
MR. MOTLEY: Your Honor, I'm going
18
to a different subject. Would this be an
19
appropriate time to quit for the day?
20
THE COURT: It will be. I remind
21
you, please don't watch any news accounts or
22
listen to any news accounts of this trial. Do
23
not discuss the case among yourselves, do not
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 166
1
(In open court with a
2
jury present at 9:20 a.m.:)
3
THE COURT: Okay. Mr. Motley, do
4
you want to pick up where you left off.
5
HERBERT ABRAMS, WITNESS, PREVIOUSLY SWORN
6
DIRECT EXAMINATION (Continued)
7
BY MR. MOTLEY:
8
Q.
Good morning, Doctor. Good morning,
9
ladies and gentlemen of the jury, counsel.
IO
A.
Good morning.
11
Q.
Doctor, I want to come back to a
12
subject very briefly. You recall yesterday we
13
were talking about Dr. Pedley who did the study
14
of miners --
15
A.
Yes .
16
Q.
-- in Canada.
17
And I asked you whether you had ever
18
seen the study of Dr. Pedley that we handed you
19
yesterday. --
20
A.
Yes.
2 1
Q.
-- published in the medical
22
literature in that form. Do you recall that?
23
A.
Yes, I do recall that. I had not
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
seen it.
Q.
Okay. Now, I want to show you -
MR. MOTLEY: Your Honor, this is
4
Exhibit 4778.
5
BY MR. MOTLEY:
6
Q. It's by a gentleman namedWheatley
7
dated 1944, Dr. Wheatley from Metropolitan Life.
8
Have you seen that before I showed it to you?
9
A.
No, I have not.
.
10
. Q.
Would you look at page two.
11
A. Yes.
12
Q.
The title of this is "A 1944 Study
13
Metropolitan Life." You see the name Wheatley?
14
A. I see that, yes.
15
Q. Assistant medicaldirector.
And
16
it's called "Tuberculosis and Asbestosis.11 And I
17
think that says, "A Brief Review of Current
18
Knowledge and Analysis of Tuberculosis Mortality
19
in the Asbestos Mining Community of Thetford
20
Mines, P. Q." I think that means Quebec
2 1
Province, Canada; okay?
22
Had you ever seen that before?
23
A. No, I had not.
"r* *<h1**"--
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
Q.
Okay. it says on page two, Canadian
observations. "in 1930, Pedley and his
associates examined physically and by x-ray 195
asbestos workers in the towns of Asbestos and
Thetford Mines." Now, that's what we showed the
jury yesterday; right?
A. Yes, I recall that.
Q.
Okay.
Do you see that?
And then they have a table.
A . Yes.
Q.
That's the same table we showed the
jury yesterday, isn't it?
A. Yes, I see that.
Q.
Okay. On page two, he says, "There
have been no published reports among asbestos
workers in Canada with respect to the prevalence
of tuberculosis in the asbestos industry. In
1930, Pedley and his associates examined
physically and by x-ray 195 asbestos workers in
the towns of asbestos and Thetford Mines." Do
you see that?
A.
I see it, uh-huh.
Q.
Okay. Then he shows that table, if
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
you look on page ten.
He's lost page ten.
A. I have page ten.
Q* No. Mr. McConnell has lost it.
A . Oh, I see.
Q*
I will read it to you so the jury
can see it and I will read it to you.
"Dr. A. J. Lanza, assistant medical
director, has very generously permitted us to use his unpublished data
What's that next word?
MR. McCONNELL: Secured.
Q.
-- "secured by Pedley in 1930 on
asbestosis and tuberculosis in miners of Thetford
and Asbestos. Dr. Lanza has also advised on the
preparation of the final report."
Now, sir, does that confirm what you said yesterday that that Pedley study was not published?
A. Exactly.
.
Q. Did you ever see that Wheatley
report published in the American literature?
A.
No, I had not. I have never seen
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
it.
2
Q*
Do you have any idea -- give me the
3
Lanza book.
4
There has been a lot mentioned about
5
this dog-eared book of mine called Silicosis and
6
Asbestosis by Dr. Lanza in 1938.
7
A.
Yes. I see that.
8
Q.
Do you know whether or not Dr. Lanza
9
bothered to put the Pedley report in this
10
textbook?
11
A.
I don't think he did.
12
Q.
Now, let's turn to another subject,
13
sir. Have you ever heard of a place called
14
Manville, New Jersey?
15
A.
I have heard of it, yes.
16
Q.
And what have you heard about it? I
17
don't mean whether it's a good place to live or
18
anything.
19
A.
Well, they had a Manville plant
20
there at one time anyway. I don't know what the
2 1
situation is today.
22
Q.
That might explain why it's called
23
Manville, New Jersey; right?
rireSHwr*~~
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
1
A.
Could be.
2
Q.
Okay.
3
MR. MOTLEY: YourHonor, we move,
4
pursuant to Your Honor's ruling yesterday, into
5
evidence Exhibit 5345. This is the 1932 study
6
you ruled on yesterday.
7
MR. McKENNA: May I see it?
8
THE COURT: All right.
9
BY MR. MOTLEY:
10
Q.
Now, sir, I wantto showyou another
11
document, that accompanies this. He retyped this
12
so it would be clearer.
13
A. Sure.
14
Q*
It says "Physical Examinations at
15
Manville Plant, Manville, New Jersey."
16
"At a conference of general
17
headquarters, it was decided to" -- what's that
18
word?
19
A.
To conduct chest -
20
Q*
-- "chest examinations on 600
21
employees taken at random for" -
22
MR. McCONNELL: From different
23
parts.
sis
* "tfv ---
**
.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1674
1
Q*
"from different parts of the
2
factory. It was recommended by Dr. Fellows of
3
the Metropolitan Life Insurance Company that
4
examinations be made by x-ray and fluoroscope.
5
It was later decided that this examination
6
include all employees at the Manville factory."
7
Up a little built, please.
8
"On recommendation" -
9
MR. McKENNA: Could we read the
10
entire paragraph down to the next highlighting?
11
MR. MOTLEY: Sure.
12
BY MR. MOTLEY:
13
Q.
"An x-ray and fluoroscope were
14
installed on February 22nd, 1932. Active work on
15
employees was started on February 24th. The
16
services of Dr. P. K. Sabotelle, on
17
recommendation of Dr. Fellows of Met Life, were
18
obtained for the fluoroscopic examinations and
19
supervision of the general examinations of the
20
employees, which also included x-rays, some
2 1
physical examinations of chests, and histories.
22
"Dr. Sabotelle was assisted by a
23
Mr. Fetkenhouer, who acted as technician and took
.35
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
all the x-rays of employees' chests. The
histories were taken by Miss Meirs, who was
thought best fitted for the task because of her
4
intimate connection with most of the families of
5
the employees and her knowledge of most of their
6
past histories. No specific reason was given to
7
employees for the examination except the general
8
understanding that it was a 'general health
9
survey.'
10
"On recommendation of Dr. Lanza of
11
Metropolitan Life Insurance Company, contact was
12
made with Dr. Meriwether, surgeon in charge, U.S.
13
Bureau of Mines, Picher, Oklahoma, to interpret
14
the x-rays taken."
15
MR. MOTLEY: Do you want me to read
16
the rest of it?
17
MR. McKENNA: I think you probably
18
ought to read the next paragraph and the next
19
paragraph in view of your claim.
20
BY MR. MOTLEY:
21
Q.
"An examination card was made up to
22
include fluoroscopic record, history record, as
2 3
well as standard physical examination for
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
employment in order to make one complete physical
record. An x-ray card was made up to send with
3
each x-ray film to Dr. Meriwether for him to
4
record his interpretations. This was done for
5
the purpose of having only one record of the
6
x-ray interpretations.
7
"Employees to be examined were
8
selected by the personnel department. Each
9
employee was summoned to appear at the plant
10
dispensary by appointment. On arrival, his
11
complete record of employment, injuries and
12
illnesses, past and present, were obtained by
13
Miss Meirs by means of leading, questions
14
appearing on the examination card.
15
"The employee was then prepared for
16
examination and an x-ray and fluoroscopic
17
examination made. On the x-ray film was included
18
the employee's clock number for the purposes of
19
identification.
20
"Physical examination of cases with
21
positive fluoroscopic findings were made by
22
Dr. Sabotelle. The fluoroscopic findings were
23
recorded directly on the card by Dr. Sabotelle.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1677
2 3 4 5 6 7 8 9
10
11 12 13 14 15 16 17 18 19 20 21
22
23
The positive cases that had a previous employment history of a dust occupation were called" -- i can't read that word.
THE COURT: Pneumoconiosis?
A.
Pneumoconiosis.
Q*
"'pneumoconiosis', which is the
general, nonspecific term for a dust infection of
the lungs. The positive cases that had no
previous dust history was called 'asbestosis .'" MR. McKENNA: Why don't you just
read the next three and that will do it.
of them?
MR. MOTLEY: Why don't I read four
MR. McKENNA: Whatever you want to do. BY MR. MOTLEY:
Okay, four is fine.
Q.
"The x-rays with a card attached
bearing only the employee's clock number, and not
his name, were sent direct to Dr. Meriwether.
This card also contained the past dust history of
the employee.
"It was originally intended that only six hundred of the employees be examined,
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
but the results of the first five hundred
examined were so impressive that it was decided
to examine all factory employees, the total
4
examined being 1140."
5
MR. McKENNA: Just read the next
6
sentence and that's it.
7
Q.
"The examination period was from
8
February 24th to May the 19th, 1932, and an
9
average of 100 employees a week was examined."
10
Now, is there anything significant,
11
sir, about 1140 people being investigated for
12
asbestcsis in 1932?
13
A. Yes. Very significant. The fact
14
that it was a large number, perhaps the largest
15
group examined for asbestosis up to that point in
16
the United States, at least by 1932, and it would
17
have been quite useful to have those results.
18
Q.
Now, sir, in the results it showed
19
28.6 percent had positive findings, did it not?
20
A.
I believe so, yes. I have it here,
2 1
yes. Uh-huh.
22
Q. Is that significant?
23
A.
Yes. That shows a high attack rate
fessa
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1679
for asbestosis in that group, uh-huh.
Q.
What kind of worker was examined at
that Manville plant; that is, what type of
4
occupation?
5
A.
Well, they were, as I understand it,
6
they were manufacturing workers, fabricating
7
insulation materials.
8
Q.
Well, this table shows the
9
different --
10
A. Different occupations.
11
Q. Yes, sir. People in the shipping
12
department ?
13
A.
-Let's see .
14
Q.
Do you have the right page? Let me
15
give you the retyped one so you can see that.
16
A.
Yes., I have -- the departments are
17
listed, yes.
18
Q.
Shipping de partment ?
19
A.
Pipe maker, electrician, so forth.
20
Q.
Electrician , glove department?
21
A.
Yes. Brake lining, machinist, paper
22
mill, packing , so forth.
23
Q.
Watchman ?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
A . Yes.
Q. Now, Dr. Abrams, have you heard the
term "bystander" used before?
4
A.
The term "bystander," is that what
5
you said?
6
Q. In connection with asbestos
7
disease.
8
A. Yes, I have.
9
Q. What does that mean?
10
A. Well, it has been demonstrated in a
11
number of studies that so-called bystanders -
12
that is, people who are not actually working with
13
the material -- can get asbestosis and other
14
asbestos diseases simply because they are in the
15
vicinity and they are inhaling the dust.
16
Q. Does this study in 1932 demonstrate
17
that bystanders, people not working actually in
18
the factory, could get sick?
19
A. Yes. Well, watchman, for example,
20
is a good example of that.
2 1
Q. Now -
22
A. Perhaps others.
23
Q. To your knowledge, was that study we
y y - --
HERBERT ABRAMS, MO
DIRECT BY MR. MOTLEY
1
have been talking about ever published in the
2
scientific literature for doctors like yours to
3
review?
4
A.
No, it was not published.
5
Q.
Now, Doctor, I want to show you a
6
document by Dr. Lanza.
7
MR. MOTLEY: This is Exhibit 5199,
8
Your Honor.
9
BY MR. MOTLEY:
10
Q.
Show who wrote it.
11
I'm sorry, can you come down ?
12
A..
I can see that, yes
13
Q.
You can see that a lot better than
14
can.
15
A.
I can read it. Oh, not the last
16
line .
17
Q.
This is a letter by D r . Lanza?
18
A.
Yes, I see that.
19
Q.
And it was written to a Dr. Donald
20
Cummings, assistant director, Saranac
21
Laboratory. Do you know who Dr. Cummings was?
22
A.
Well, he worked at Saranac, I d o n 't
23
recall his position. It's indicated there
HERBERT ABRAMS, MD
D I R E C T BY MR. M O T L E Y
Q. What was Saranac?
A. Saranac started out as tuberculosis
facility in the days when people had a very high
4
rate .
5
Q.
You have to keep your voice up.
6
The jury heard testimony that there
7
was a Saranac Laboratory that studied a product
8
called Kaylo?
9
A.
Oh, yes. Yes.
10
Q.
Did animal studies, is that the same
11
Saranac?
12
A.
Same organization, sure.
13
Q.
This is dated April 11th -- 1933,
14
1932? -- April 11th, 1933, from Dr. Lanza. It
15
says, "I found your letter of April the 8th on my
16
return from Pittsburgh. I am very much afraid
17
that I have not much of comfort to you. I talked
18
it over with Sayers, and he feels very strongly
19
that if you and the Saranac Laboratory are going
20
to stay in the consulting business with respect
2 1
to the mining industry, it will not be possible
22
for you to publish these papers at least at the
23
present time. I myself somewhat reluctantly feel
HERBERT ABRAMS, MD
D I R E C T BY MR. MO T L E Y
inclined to agree with him.
"At the same time we must recognize
that the" -- what's that word?
MR. McCONNELL: Present.
5
.
MR. McKENNA: Can you read the
6
entire letter, please?
7
BY MR. MOTLEY:
8
Q.
-- "the mining companies in Michigan
9
with whom you have been in contact have interest
10
in the Picher district. If these papers are
11
published against the wishes against the Tristate
12
Associates, you will undoubtedly promptly feel
13
the repercussions elsewhere.
14
"As I said before, I feel the whole
15
situation is unfortunate, but it is one of those
16
things that cannot be helped.
17
"I think it is important that the
18
Saranac Laboratory establish and maintain contact
19
with asbestos firms because it is going to be
20
increasingly necessary for industry to have
2 1
available a thoroughly scientific and impersonal
22
establishment with which it can do business.
23
"At the same time, we must recognize
*i.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1684
.1 that the recent disturbing condition of affairs
2
with the extraordinary multiplicity of damage
3
suits for silicosis is not only very disturbing,
4
but necessitates that all of us who are in
5
contact with industrial firms proceed with a
6
great deal of caution.
7
"I understand that shyster lawyers
8
are beginning to stir things up in Picher and
9
Miami, which makes the situation with respect to
10
the Tristate Associates still more difficult.
11
"On the other hand, I feel fairly
12
certain that when the industrial situation starts
13
to clear up, you will be able to bring your
14
reports up-to-date and have them published. In
15
that respect, as I pointed out, you are in the
16
same position as we are with the investigations
17
we have made in the asbestos industry."
18
Doctor, do you have an opinion as to
19
whether it is consistent with good public health
20
policy that laboratories and scientific
2 1
investigations not be allowed to publish papers
22
because of lawsuits?
23
A.
Well, I would say it's a
HERBERT ABRAMS, MD
DIRECT BY MR. M OTL E Y
1
reprehensible, terrible attitude, and it just
2
deals fast and loose with human life. It's a
3
cynical approach to the situation, because it
4
should be open. That's the only way to protect
5
human beings.
6
Q.
Sir, I'm now going to go to another
7
subject.
8
MR. MOTLEY: Your Honor, we move
9
pursuant to Your Honor's ruling yesterday the
10
admission of Exhibit 3977, questions and
11
answers.
12
BY MR. MOTLEY:
13
Q.
Doctor, at my request, did you
14
review Exhibit 3977, which is dated August the
15
29th, 1933?
16
A.
I don't recall this one.
17
Q.
It's questions and answers of
18
Dr. Lanza.
19
A.
Oh, yes. Now I recall it, yeah.
20
Q.
"Questions asked Dr. A. J. Lanza and
2 1
His Answers Verbatim."
22
A . Yes.
23
Q. "Attached is a copy made by
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
Mr. Kottcamp's office of questions asked
Dr. A. j. Lanza by our local physician at
Waukegan and his answers; also the
recommendations by our plant physician.
5
"I would like to have you turn this
6
over to someone who could review this
7
correspondence, and then go over it yourself and
8
write me your opinion of it. S. A. Williams,
9
vice president." And then a copy to
10
Mr. Kottcamp, Waukegan Factory.
11
Are you familiar with the existence
12
of a Johns-Manville plant in Waukegan, Illinois?
13
A. Yes.
14
Q.
That was near Chicago, wasn't it?
15
A . That's right.
16
Q. "Questions Asked Dr. A. J. Lanza and
17
His Answers Verbatim." I'm not going to go over
18
all of them.
19
"Question No. 2: Do you agree with
20
my recommendation that employees definitely be
21
made aware of the fact" -
22
MR. McKENNA: Excuse me,
23
Mr. Motley. Do you want to read one and two?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
MR. MOTLEY: Your Honor, I don't
2
think I should have to read everything he wants
3
me to read. We will be here all morning.
4
MR. McKENNA: That's fine. If he
5
doesn't want to read it, that's fine.
6
THE COURT: Go ahead.
7
BY MR. MOTLEY:
8
Q.
"Do you agree with my recommendation
9
that employees definitely be made aware of the
10
fact that asbestos dust is hazardous to their
11
health? My idea is that a poster be placed at
12
one or more conspicuous places in the department,
13
signed by the physician, stating that the dust is
14
injurious, advising the continuous use of
15
respirators while at work and cleansing of hands
16
before heating lunch and after work.
17
"Your comment on this please, and
18
particularly is there any additional advice that
19
should be given?"
20
Answer by Dr. Lanza: "This is
21
partially answered by No. 1." I may have to go
22
back and read number one.
23
MR. McKENNA: That's why I wanted it
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
read in the beginning.
2
MR. MOTLEY: Well, you are kind to
3
bring it to ray attention.
4
Q.
"I doubt if the hazard is sufficient
5
to justify warning posters as might be used where
6
lead, benzol or carbon monoxide are concerned.
7
This is especially true in view of the
8
extraordinary legal situation."
9
There we go again worried about
10
lawsuits; right?
il
A.
Right.
.
12
Q.
"If anything is said at all, it
13
would be better to make a general statement that
14
the company is taking steps to control the amount
15
of dust in the air for general health purposes.
16
Any action contemplated in Waukegan would
17
probably be influenced by the experience at other
18
plants of the company."
19
Go down and read No. 1. It refers
20
to N o . 1.
21
"Among 11 employees in the textile
22
department, all exposed to asbestos dust, one
23
only wears a respirator, several on being
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
questioned claim they cannot wear them
2
continuously, especially in hot weather.
3
"Should all employees be forced to
4
wear these respirators whether subjected to much
5
or little asbestos dust? If any such difficulty
6
experienced at the Manville, New Jersey, J-M
7
plant or other places of which you have
8
knowledge?"
9
Answer by Dr. Lanza. "Respirators
IO
are not satisfactory. It is possible to
11
construct a respirator which will filter out fine
12
dust, but it would offer so much resistance to
13
respiration that it could not be worn
14
continuously on an eight-hour shift.
15
"There are on the market small face
16
mask respirators which are equipped with positive
17
pressure, and these are both satisfactory,
18
efficient and comfortable, but they cannot be
19
worn except by a person who stands in one place
20
as they have to be hooked up with a rubber tube
21
to an air line. I doubt if they would be
22
practical in a textile plant."
23
Now let me get back to Question No.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
2 again.
2
A . Yes.
3
Q* Do you remember, we showed the jury
4
what Dr. Meriwether said in 1930 yesterday?
5
A.
Yes. I'm trying to remember
6
specifically what you are referring to.
7
Q. Do you remember the term sane
8
appreciation of hazard?
9
A.
Yes. I recall that, yes.
10
Q*
Is the advice given here by
11
Dr. Lanza not to put up posters consistent with
12
good public health practice as it existed in the
13
1930s?
14
A.
No. It was bad practice then as it
15
is today, because it's so important, we are
16
dealing here with a disease that is totally
17
preventable, but not curable.
18
So that the only sane measures are
19
to try to prevent the disease. And to put legal
20
considerations in front of human, life is really,
21
really sad.
22
Q.
Particularly in light of the fact
23
that they are worried about lawsuits?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
A. Exactly. That's what I'm saying.
Q. Page three.
"I have made a diagnosis of
4
asbestosis on an employee who has been working in
5
the card room of the textile department six
6
years. This place is extremely dusty. He is not
7
disabled.
8
"In my judgment, the best
9
disposition of such a case is to remove him from
10
the dust and give him a job in some other part of
11
the plant. From your remarks in Chicago, I
12
believe this was your advice as to the
13
disposition of such cases.
14
Dr. Lanza says: "It is difficult to
15
answer this question. I think it would depend
16
upon the man's age, the nature of his work, his
17
length of service, and other considerations which
18
might have some bearing. If he is well along in
19
years and shows no disability, it may be just as
20
well to leave him alone. One of the difficulties
21
and vexations in trying to deal with the problems
22
of pneumoconiosis is that economic as well as
23
production factors must be balanced against the
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1
1
medical factors."
2
Now, Doctor, in the 1930s, if a man
3
had asbestosis, was it a sound public health
4
policy to leave him where he got it?
5
A.
No. Again, it's a cynical attitude
6
that you must balance economic factors against a
7
man's life.
8
We are dealing with human lives, and
9
I think that this was terrible policy then as it
10
would be today. And simply because it was some
11
years earlier doesn't excuse it. We are dealing
12
with human beings then as we are today.
13
Q.
Give me one second. I'm looking
14
this up.
15
"Recommendations of Plant Physician
16
Following Examination of Employees in Textile
17
Department and Comment by Dr. A. J. Lanza."
18
"Employees in the textile department
19
should tactfully but definitely be made aware of
20
the fact that work in asbestos dust is hazardous
2 1
to their health. Every reasonable effort should
22
be made to induce them to wear respirators. They
23
should be instructed in the necessity of
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1693
thoroughly cleansing their hands before eating
lunch and after work, and provided adequate facilities for doing this.
"Comment: I think this is out, at
least for the present. Personal cleanliness does
not enter into this problem."
A.
Well, it's the same answer,
obviously. Dr. Lanza isn't thinking first of the
employees here. He's thinking of the plant and production and economics.
.
But the questions are very good. It
indicates the plant's physician was conscientious
by raising good questions, but the answers were pretty terrible.
Q.
And when you refer to the answer,
you are talking about Dr. Lanza?.
A.
Dr. Lanza's answers, sure.
Q.
This is the same Dr. Lanza that came
out
'
A. him, yeah, "silicosis,
Q.
And pounded on the table when I met When I mentioned the odious word
he didn't like that. How many times did you meet
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1694
1
Dr. Lanza?
2
A.
Oh, I would say probably two or
3
three times. I don't recall exactly.
4
Q.
This policy of not telling people
5
they are sick, is that what you found from
6
Dr. Smart yesterday and showed the jury?
7
A . Oh, ye s .
8
Q.
Same policy?
9
MR. McKENNA: Objection,
.10
Your Honor.
11
A.
That was by Dr. Smart's own
12
admission --
13
THE COURT: You said what?
14
MR. McKENNA: Objection.
15
THE COURT: I'll sustain that.
16
A. -- what they had.
17
Q. Did you find out, sir, from your own
18
experi ence twenty years later whether
19
Johns- Manville was following the same policies?
20
MR. McKENNA: Objection,
21
Your Honor.
22
A.
They were following the same pattern
23
e ssent ially all through that period.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1695
stand.
THE COURT:
BY MR. MOTLEY:
I'll let the answer
Q. They were following the same policy? A. That's correct, yes.
Q. sir.
I want to show you another document,
MR. MOTLEY: Your Honor, we move the admission of Exhibit No. 8 pursuant to your ruling yesterday.
THE COURT: It will be received. MR. MOTLEY.: Your Honor, we are to substitute --- there was a page missing and counsel found it. We are going to substitute it, but so as not to delay the jury, we will go ahead. BY MR. MOTLEY:
Q.
Now, this is a Johns-Manville report
dated February 3rd, 1949, "Industrial Hygiene,
Survey of Men in Dusty Areas." Did you ever meet *
Mr. Woodard of -
A. him.
No, I don't recall that I ever met
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
Q.
But you heard the name Vandiver
2
Brown, haven't you?
3
A.
O h , yes.
4
Q.
He was a lawyer for Johns-Manville?
5
A.
Exactly.
6
Q.
Okay. Look down at the bottom. Do
7
you see any initials down there?
8
A.
A .J .L .
1
9
Q.
And H .M .J .,
10
.
H.M.J.
11
Q.
What was Dr. Lanza's name?
12
A.
Anthony J. Lanza, yes.
13
Q.
Now, I want to show you, sir, on
14
page three. This is by Dr. Kenneth Smith it
15
shows at the end. Did you ever meet Dr. Smith?
16
A.
Yes .
17
Q.
Tell the jury who he was?
18
A.
Well, I met Dr. Smith after the
19
expose of the diatomaceous earth silicosis in
20
California. He was then appointed by the
2 1
Johns-Manville Corporation as their corporate
22
medical director.
23
As a matter of fact, he was their
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1697
first corporate medical director up until that
time. They had part-time doctors in their
various plants. And he came out to California at
one point shortly after that, and I met with him.
5
Q.
Okay. Now, this 1949 report by
6
Dr. Smith working up in the mines in Canada, it
7
says , "Of the 708 men , 7 have x -ray evidence of
8
early asbestosis. All have had at least twenty
9
years of exposure to the dust. It must be
10
remembered that, although these men have the
11
x-ray evidence of asbestosis, they are working
12
today and definitely are not disabled from
13
asbestosis.
14
"They have not been told of this
15
diagnosis, for it is felt that as long as the man
16
feels well, is happy at home and at work, and his
17
physical condition remains good, nothing should
18
be said. When he becomes disabled and sick, then
19
the diagnosis should be made and the claim
20
submitted by the company.
21
"The fibrosis" -- what's that mean,
22
scarring?
23
A.
The scarring, yes, uh-huh.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 .11 12 13 14 15 16 17 18 19 20 21 22 23
Q.
-- "of this disease is irreversible
and permanent so that eventually compensation
will be paid to each of these men. But as long
as the man is not disabled, it is felt that he
should not be told of his condition so that he
can live and work in peace and the company can
benefit by his many years of experience. Should
the man be told of his condition today, there is
a very definite possibility that he would become
mentally and physically ill, simply through the
knowledge that he has asbestosis."
A. Yes.
Q. Doctor, would you -
MR. McKENNA: Could we read the next
sentence, please?
MR. MOTLEY: Glad to.
Q. "The advisability of transferring
these men is discussed later in this report."
Then they go on to talk about
whether they ought to transfer them.
A . Yes.
Q.
Dr. Abrams, as a public health
expert, what is your opinion about this policy of
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
not telling a man he has a disease which the
2
doctor says is going to get worse and worse and
3
worse?
4
A.
I don't need to be a public health
5
expert to condemn that policy. I just -- just
6
any human being would know that that policy is
7
terrible.
8
A human being has a right to know
9
whether he's endangered, and should be able to
10
take steps to protect himself.
11
We are dealing here, of course, with
12
a disease, as I mentioned before, that is totally
13
preventable but not curable, and asbestosis tends
14
to be progressive. So that once it starts, it
15
will continue.
16
And to condemn a man like this -- if
17
a man is found to have something like that, he
18
should be taken out of the dust and not kept in
19
the dust because it will only get worse.
20
Q.
Well, even assuming, they moved him
21
out of the dust, do you still think he should be
22
told?
23
A.
Absolutely. Absolutely. It is his
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
life and his family, they should know, so that
2
anything necessary to make his life more
3
comfortable and protection against superimposing
4
pneumonias and other conditions can be protected
5
against.
6
Q.
Doctor, even people with early
7
asbestosis, aren't there things that, while they
8
can't cure the disease, aren't there ways they
9
can try to protect themselves from colds and the
10
flu, get flu shots?
11
A.
Of course, of course. It's very
12
important to protect oneself against infections
13
in a condition like that, when the lungs are
14
already weakened.
15
Q.
Now, Doctor, I want to go to a
16
different subject.
17
By the way, let me ask you this,
18
just as a general matter. Have you ever heard in
19
a scientific meeting a reputable doctor stand up
20
and say, The less said about asbestosis, the
21
better off we are?
22
A.
I hope I never hear that.
23
Q.
I want to go to 1943. Tell the
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
ladies and gentlemen of the jury if you know who
2
Leroy Gardner was?
3
A.
Leroy Gardner for a number of years
4
was the medical director of the Saranac
5
Laboratories in New York state, and he was an
6
authority and a researcher in the field of
7
pneumoconiosis, silicosis, asbestosis
8
particularly.
9
Q. He's deceased; correct?
10
A.
Yes. He died in 1946. I think, in
11
October of 1946.
12
Q. Unfortunately, Doctor, a lot of
13
these people are dead, aren't they?
14
A. Yes, unfortunately.
15
Q. Have there been publications in the
16
medical and scientific literature by people of
17
your age about the goings on at the Saranac
18
Laboratory?
19
MR. McKENNA: Objection,
20
Your Honor.
2 1
MR. MOTLEY: I'll rephrase it.
22
BY MR. MOTLEY:
23
Q.
Do you know whether other doctors
*v V*
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
have written about what happened at the Saranac
2
Laboratory with Metropolitan Life and
3
Johns-Manville?
4
MR. McKENNA: Objection.
5
THE COURT: I'll allow him to answer
6
that.
7
A.
Yes, there have been some
8
publications.
9
Q.
Describing what we are about to talk
10
about; correct?
11
MR. McKENNA: Objection, Your Honor.
12
A. I believe so, yes.
13
THE COURT: I'll overrule the
14
objection. Go ahead.
15
BY MR. MOTLEY:
16
Q.
When Dr. Gardner died, who succeeded
17
him, do you know?
18
A. Dr. Vorwald, I believe, was the next
19
director.
20
Q. Generally, sir, can you describe
21
from your personal knowledge the kind of -- I
22
want to focus in on asbestos, now; okay?
23
A . Yes.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1703
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23
Q.
Although, to your knowledge, did
Saranac also do investigations about diatomaceous earth?
A. Oh, yes, sure.
Q. In yourpersonal file, doyou have
letters and things, if they would like to see
them, that talks about the investigations they
did on diatomaceous earth?
A.
Oh, yes. I knew that firsthand,
their work on diatomaceous earth.
Q*
Are you aware of any work Saranac
did on asbestos?
A.
Oh, yes. Oh, yes.
Q.
Describe generally the type of work
they did, without any detail?
A.
Well, in about 1936, the major
corporations that were manufacturing asbestos
products contracted with Saranac Lake Laboratory
and Dr. Gardner to do experimental work,
investigative work on asbestosis.
And Dr. Gardner carried that on for
a number of years until his death, as a matter of fact.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
MR. MOTLEY: Your Honor, I believe
2
you preadmitted 213.
3
BY MR. MOTLEY:
4
Q.
I have a letter here that the Judge
5
has admitted from the president of one asbestos
6
company to the president of another one. And
7
it's dated November 10th, 1936.
8
A.
Yes.
9
Q.
We retyped it so it would be easier
10
for me to read and the jury to see.
11
A . Yes.
12
Q. November 10th, 1936. Mr. Schluter
13
of the Thermoid Rubber Company.
14
"My Dear Mr. Schluter: The writer
15
and Mr. Vandiver Brown of Johns-Manville had a
16
conference with Dr. Leroy Gardner of Saranac,
17
New York, and Dr. Lanza and Dr. McConnell" -
18
Jack's father. No relation -- "of the
19
Metropolitan Life Insurance Company."
20
Do you know who Dr. McConnell was?
21
A. Well, he was also, as indicated,
22
associated with Dr. Lanza and Met Life. I think
23
I once met McConnell also, uh-huh.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
Q.
"with reference to the asbestosis
2
situation in the asbestos industry.
3
"As you no doubt know,
4
Johns-Manvi11e and ourselves have been doing
5
considerable work in conjunction with the
6
Metropolitan Life Insurance Company in the way of
7
eliminating asbestos dust in our factories, and
8
we have made a very satisfactory job of it."
9
' "I think the compensation laws in
10
the various states will become more rigid in the
11
next few years, and no doubt asbestos on account
12
of the advertising it has had lately will become
13
one of the compensation cases, and we should have
14
all the information we can possibly get to submit
15
to the compensation commissions of the various
16
states when the question of asbestosis comes up."
17
Then they discuss Dr. Gardner having
18
a dust chamber.
19
MR. McKENNA: Your Honor, may we
20
approach for a moment?
2 1
(At sidebar :)
22
MR. McKENNA: Mr. Fox doesn't think
23
it was preadmitted.
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1706
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
THE COURT:' Which was the number? MR. McCONNELL: 213.
MR. FOX: Do you know if it was?
MR. McKENNA: preadmitted?
Do you know if it was
MR. McCONNELL: I will check. THE COURT : Can I see it? MR. MOTLEY : This is- a retyped version so you can read it better.
MR. McCONNELL: It was. I mean, my notes reflect this is preadmitted, Judge.
THE COURT: Okay.
MR. McKENNA: All right.
(End of sidebar." BY MR. MOTLEY:
Q. He's talking about experimenting
with asbestosis and dust chambers with animals, do you see that?
A. Yes.
Q. Theysay, "The idea of Mr. Brown and
myself would be to have four or five, or even
more if we could get them, asbestos manufacturers
take over the study by subscribing an equal
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
amount per year for three years, and then we
2
could determine from time to time after the
3
findings are made whether we wish any publication
4
or not.
5
"My own idea is it would be a good
6
thing to distribute the information among the
7
medical fraternity, providing it is of the right
8
type and would not injure our companies."
9
Now, Doctor, from a public health
10
standpoint, in the '30s, '40s, '50s and today, is
11
it proper to leave with a company who funds
12
research the right to decide whether to publish
13
it or not, depending on whether or not the
14
results help them or hurt them?
15
A.
Well, it speaks for itself. It's
16
obviously not in the interest of the public
17
health. It's obviously in the interest of the
18
companies.
19
MR. MOTLEY: Excuse me.
20
BY MR. MOTLEY:
2 1
Q.
Doctor, from this letter, can you
22
reach a conclusion as to whether or not the
23
Saranac Laboratory was free on its own to publish
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
the results of its studies without first getting
2
approval from the industry?
3
A.
No, obviously they were not free.
4
They were restricted by the restraints imposed
5
upon them by the industries involved.
6
Q.
I have Plaintiff's Exhibit 1905,
7
Your Honor. It's been preadmitted.
8
MR. McKENNA: Your Honor, can we
9
approach again?
10
THE COURT: Uh-huh.
11
(At sidebar:)
12
THE COURT: Can I see it? Is there
13
a question about whether it was preadmitted?
.14
MR. McKENNA: Well, apparently that
15
was deferred, and the last document was
16
deferred. But I didn't want to come up again,
17
having interfered with the process again.
18
MR. McCONNELL: I missed that.
19
MR. McKENNA: The last document was
20
deferred according to our records, and this one
21
was deferred.
22
MR. McCONNELL: I don't have the
23
backup with me, but I personally went through the
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
22
23
transcript after we had our conference and I
produced this list, and that's all I have got to
go on. And it's free and clear of any footnote, which means it was admitted.
MR. FOX: We did the same thing, and it's indicated it was deferred.
MR. McCONNELL: I mean, if -
THE COURT: deferred it?
Do you recall why we
MR. FOX: Your Honor -
MR. McKENNA: The only point, I just need a ruling on it, that's all.
MR. MOTLEY: Your Honor, this
document was admitted against Raybestos, against H. K. Porter. I don't know why it would have been deferred.
THE COURT: I remember it, I just
don't remember -- I have no specific
recollection. it are?
Do you know what the objections to
MR. McKENMA: I assume the
objections are -- do we have an authenticity objection to this? Is it a summary?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1710
1
MR. FOX: Yes, I think so.
2
MR. McKENNA: I think we object to
3
this on hearsay, relevance and 403. As I gather
4
from the prior rulings of the Sumner Simpson
5
depos ition with regard to authenticity, if you
6
want to overrule that --
7
THE COURT: Right. I will admit
8
it.
9
MR. McCONNELL: Thank you,
10
Your Honor.
11
MR. McKENNA: Could I ask a favor?
12
Could you give us a list of the exhibit s you are
13
using ? We could avoid a lot of this if we have
14
it in advance.
15
MR. McCONNELL: This is on a wing
16
and a prayer, to be honest. I will try to make a
17
good faith effort of giving you the ones that are
18
coming up, if that's all right with Your Honor?
19
THE COURT: All right.
20
(End of sidebar.)
2 1
BY MR. MOTLEY:
22
Q.
Do you have this? Did I take your
23
copy?
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1711
A.
The November 20th? I have it.
Q.
This is a document, ladies and
3
gentlemen, in 1936, again, relating to Saranac,
4
November 20th, 1936, to Dr. Gardner. It's from
5
Vandiver Brown, the general attorney,
6
Johns-Manville Corporation.
7
"At a meeting yesterday attended by
8
certain brake lining manufacturers, Mr. Simpson
9
and I were able to pres.ent to a fairly large
10
group of interested corporations the proposal
11
that one of your dusting chambers be engaged for
12
further experimentation with asbestos dust.
13
"The proposal was very well
14
received, and it appears that not less than
15
eight, and perhaps ten or more, corporations will
16
participate in financing these further
17
experiments along the lines discussed when we met
18
with Dr. Lanza and Dr. McConnell a few days ago.
19
"Accordingly, you may consider this
20
letter as an authorization for you to commence
2 1
the contemplated experiments with asbestos dust
22
for the purpose of determining more definitely
23
the causes and effects of asbestosis. It is my
1
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1712
1
understanding that, among other questions which
2
it is anticipated these experiments will answer,
I
3
are the following:
4
"That concentration of dust is
5
necessary -- what concentration of dust is
6
necessary to produce the fibrosis of the lungs
7
which is designated as asbestosis."
8
Now, is that the concept we have
9
been talking about, TLV?
10
A. Yes, that's it, uh-huh.
11
Q. Okay. "Whether exposure to asbestos
12
dust will produce asbestosis without the
13
existence of previous infection and whether the
14
x-ray changes found in advanced human asbestosis
15
can be reproduced in animals without infection.
16
"Whether the fibrosis produced by
17
asbestos is of the progressive type; that is,
18
will the fibrosis increase, once it has started,
19
after exposure to the dust is ceased."
20
What does that mean?
21
A.
Well, that's an important aspect.
22
They wanted to know if once asbestos or fibrosis
23
starts, will it progress even if the animal is
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 removed from the dust exposure.
2
Q.
And he talks about how much does it
3
cost. "it is our further understanding that the
4
results obtained will be considered the property
5
of those who are advancing the required funds,
6
who will determine whether, to what extent and in
7
what manner they should be made public. In the
8
event it is deemed desirable that the results be
9
made public, the manuscript of your study will be
10
submitted to us for approval prior to
11
publication."
12
What does that mean?
13
A.
Well, that speaks for itself.
14
Obviously, any results will be subject to
15
censorship, essentially.
16
MR. McKENNA: Objection,
17
Your Honor. Move to strike. That's his
18
speculation about what may occur. It's not the
19
facts.
20
MR. MOTLEY: Let me ask a foundation
21
again, if I might?
22
THE COURT: Go ahead.
23
BY MR. MOTLEY:
cesp
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1714
Q.
In fact, Doctor, were the results of
this study censored?
3
A.
In fact, they were, of course. That
4
we know.
5
Q.
And did Dr. Lanza participate in the
6
censorship?
7
MR. McKENNA: Objection,
8
Your Honor. If he's having this witness
9
summarize a bunch of documents, he ought to put
10
the documents in evidence.
11
MR. MOTLEY: Your Honor, he objected
12
to the Doctor making a comment. Now he's
13
objecting to the bottom line.
14
THE COURT: I'm going to sustain
15
that objection.
16
BY MR. MOTLEY:
17
Q.
Have you looked at, Doctor, a report
18
dated February 1943 by Dr. Gardner to Mr. Brown
19
of the Johns-Manville Corporation outlining
20
certain findings they made seven.years after this
2 1
study was funded?
22
A.
I think so. I would have to see it,
23
though, to make sure. It sounds familiar.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
MR. MOTLEY: I move Exhibit 1148
2
into evidence, Your Honor.
3
THE COURT: It will be received.
4
Was this preadmitted?
5
MR. McCONNELL: Yes, it was,
6
Your Honor.
7
THE COURT: Okay.
8
A. Yes.
9
Q . Yes, what?
10
A. What is yourquestion about it?
11
Q.
Well, I asked you if you had looked
12
at a report of Dr. Gardner to the sponsors of the
13
study?
14
A.
Yes, I have seen that before, yesi
15
MR. McKENNA: Excuse me,
16
Mr. Motley. Could I see a copy of it?
17
Thank you.
18
BY MR. MOTLEY:
19
Q.
All right, sir.Would you describe
20
in general terms for the jury -- I'm not talking
2 1
about the letter, but the outline -
22
MR. McKENNA: Your Honor, I object
23
to him summarizing a document and telling what
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1716
the document says. The document speaks for
itself .
3
MR. MOTLEY: Your Honor, a
4
scientific document does not speak for itself.
5
It needs expert interpretation.
6
THE COURT: Go ahead, you may
7
inquire of the witness.
8
MR . McKENNA: Judge, could I ask the
9
document be read and then he comment on it?
10
THE COURT: Okay.
11
THE WITNESS : Well, there is a
12
letter here --
13
THE COURT: Go ahead and -- well,
14
wait a minute. Let me see this one.
15
MR. MOTLEY: It's 25 pages long.
16
What does he want me to do, read the whole 25
17
pages ?
18
MR. McKENNA: I just want the jury
19
to have all the facts.
20
MR. MOTLEY: Right.,
21
THE COURT: Okay. What is your
22
question?
23
MR. MOTLEY: Your Honor, I have
gsss
1
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1717
1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
gxven him a copy of this and a copy of what was subsequently published in the literature and other documents that Your Honor has preadmitted. And I would ask him to interpret the differences, if any.
that.
THE COURT : Okay. I'll permit
MR. MOTLEY: Thank you. MR. McKENNA: Excuse me, Your Honor. You are going to permit him, without reading the documents to the jury, the parts he's complaining about, you are going to allow him just to summarize them for the jury?
THE COURT: I'm going to allow him
to tell the jury what the difference between the
two documents is.
MR. MCKENNA: the documents ?
Without showing them
THE COURT : Yes .
that
M R . McKENNA: `
I just object to
MR . MOTLEY : Your Honor, the jury
will have these documents in evidence.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
THE COURT: BY MR. MOTLEY:
Go ahead, do it.
3
Q.
Doctor, what I'm trying to get you
4
to do is generally summarize what is contained in
5
Exhibit 1148, which is dated February 1943.
6
MR. McKENNA: Objection.
7
A.
Right. This is a report written by
8
Dr. Gardner of his work with asbestos, and it is
9
transmitted to Mr. Vandiver Brown of the
10
Johns-Manvi11e Corporation and so on.
11
And it's an outline of his
12
observations and findings that's divided into two
13
main parts, one is on human asbestosis, and the
14
other is on experimental asbestosis with
15
experimental animals.
16
And he describes in the human
17
asbestosis, the fact that he has studied 25
18
autopsy cases and is impressed with the fact that
19
ten of them are autopsies of workers with
2 0
asbestosis, and he's impressed with the fact that
2 1
ten of the 25 also have lung cancer.
22
And he mentions in the outline under
23
complications of asbestosis, both susceptibility
'.>7*;**
--
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
of infection and cancer of the lung.
2
On the experimental side of the
3
program, he describes various aspects of
4
asbestos, and then points out that he has
5
observed cancer of the lung in the experimental
6
animals. He says experimental data suggestive
7
but not proven.
8
He also -- excuse mei just a minute.
9
I'm looking to see whether he gives the numbers
10
of the lung cancers in this. I think it's later
11
on. But he also comments on recommendations for
12
a new standard of safe atmospheric
13
concentrations, and he raises a question about
14
the threshold limit value which was recommended
15
at that time. He thinks that probably it needs
16
revision.
17
Then further on, under human
18
asbestosis, again there is more detail. And I
19
think it's important perhaps to quote -
20
Q.
What page are you on, sir?
21
A.
This is page "I." It's several
22
pages in from the beginning here.
23
Q.
Let me see where you are.
sr
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1720
A.
It's pag e one. And under the
caption "Complication of Asbestosis" -
Q. Doctor.
You have to slow down a little bit,
A . Sure.
Q. Under "Complication of Asbestosis,"
is this where you are?
A. Yes. He mentions cancer of the lung
and he says --
MR. McKENNA: Judge, could we have
the whole section read here starting with
"Complication of Asbestosis," if that's -
MR. MOTLEY: I will be glad to do
that.
THE WITNESS: Sure.
MR. MOTLEY: "Susceptibility to
infection.
"Tuberculosis. High incidence in
English experience not duplicated in surveys of
American plants. Available autopsy statistics
deceiving because of selection of material.
"Nontuberculous. The same reason
probably applies. Should be checked by analysis
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
of absenteeism among asbestos workers.
"Cancer of lung. Ditto, but there
are now on record ten cases of lung cancer in
4
asbestos workers. Compared to the total number
5
of autopsies on asbestosis, this incidence is
6
excessive. No such frequency has been discovered
7
in silicosis or other forms of pneumoconiosis
8
except the Schneeberg mines of radioactive
9
ores."
10
What does that mean?
11
A.
Well, those were famous in our
12
occupational health history. Those are mines in
13
central Europe of uranium, radioactive minerals.
14
And those miners had a very high rate of lung
15
cancer.
16
Q. "The evidence is suggestive but not
17
conclusive that asbestosis may precipitate the
18
development of cancer in susceptible
19
individuals ."
20
A.
Yes.
.
2 1
Q.
Let me ask you a few questions about
22
that, Doctor.
2 3
A. Sure.
seri:
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
Q.
You have published you told us
yesterday in 1948 that asbestos caused cancer,
and you again published that in 1953.
4
A. That's right.
5
Q. And you told us yesterday about
6
Dr. Meriwether. Will you tell the jury again who
7
he was?
8
A.
Well, Dr. Meriwether was the chief
9
inspector of factories in England, His Majesty's
10
chief inspector, which is equivalent to sort of
11
the head of OSHA here.
12
Q.
Okay. Did Dr. Meriwether at any
13
time in the late '40s make any findings about
14
asbestosis and lung cancer?
15
A.
Yes. He pointed out that there was
16
a high rate of lung cancer found in workers with
17
asbestos. Asbestosis, I should say.
18
Q.
Did he compare the finding of lung
19
cancer and asbestosis with -
20
A. Oh, yes.
21
Q. Explain that, please.
22
A. He also differentiated. He pointed
23
out there is a high rate of lung cancer with
S9-
M.U. . 4k' .V
* V - -
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
workers with asbestosis, but not a high rate of
lung cancer in workers with silicosis.
In other words, the inference was
4
that asbestos leads to lung cancer, but not
5
silica.
6
Q-
Is that the same thing essentially
7
that Dr. Gardner is saying right here?
8
A. Yes, essentially that, uh-huh.
9
Q.
Now, Doctor, did this whole first
10
part on human asbestosis that you have been
11
referring to ever get published in the medical
12
literature?
13
A. No, unfortunately, it was not
14
published. It was deleted.
15
MR. MOTLEY: Your Honor, I believe
16
this is preadmitted, 3949.
17
MR. McKENNA: Excuse me, could I see
18
the document?
19
Could we approach for a second.
20
(At sidebar:)
21
MR. McKENNA: Mr. Fox tells me that
22
you tentatively preadmitted this document, so if
23
you can just admit it, that would take care of
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1724
1
our objection.
2
m r . Mc Co n n e l l : I didn't hear you,
3
Peter.
4
MR. McKENNA: Tom says that he
5
believes it was tentatively preadmitted.
6
THE COURT: Is this one of the ones
7
I was waiting for some document that showed the
8
conspiracy or made the prima facie conspiracy?
9
MR. MOTLEY: Yes.
10
MR. FOX: You indicated some
11
reservations about it and we might well -
12
MR. McCONNELL: I want to check that
13
because their track record up here has proved
14
wrong. We have gone back to the transcript. I'm
15
going to get the transcript.
16
THE COURT: I'll admit it, if it
17
hasn't been done.
18
(End of sidebar.)
19
BY MR. MOTLEY:
20
Q.
Have you had a chance to review this
21
document, Doctor?
22
A.
Yes, I have.
23
MR. MOTLEY: Mr. McConnell, have you
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1725
1
had a chance to get to the screen?
2
BY MR. MOTLEY:
3
Q.
The date is October 22nd, 1948. Who
4
is it from? Mr. Brown of Johns-Manville to
5
Mr. Muehleck and Mr. Rohrbeck and it's on "Report
6
of Asbestos Experiments."
7
"You will note in the memorandum I
8
suggest eliminating reference to tumors" -
9
MR. McKENNA: Excuse me,
.0
Mr. Motley. Can we start at the beginning of the
.1
document?
.2
BY MR. MOTLEY:
.3
Q.
"What purports to be 'Part I ' of a
.4
report by the Saranac Laboratory entitled
,5
'Asbestos Pneumoconiosis' has been received. My
6
comments after a preliminary study are contained
7
in the memorandum attached.
8
"I solicit your views with respect
9
to the report and my comments and also your
0
advice as to how we should proceed from this
1
point.
2
"My comments are based on a study
3
of the text of the report only. I have not
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1726
1
studied the tables. I have not reread
2
Dr. Gardner's various interim reports for the
3
purpose of comparing them with this one.
4
"In the event further comments are
5
suggested by study of the tables and interim
6
reports, I will write you next Monday.
7
"You will note in the memorandum I
8
suggest eliminating reference to tumors and also
9
to pneumonia. I also suggest that this report be
10
confined to the results of the experiments with
11
animals and not considered as the first part of a
12
study of the effect of asbestos dust on both
13
animals and human beings.
14
"I suggest this segregation because
15
I believe Dr. Vorwald, who has succeeded
16
Dr. Gardner at Saranac, will be difficult to deal
17
with" --
18
What's the rest of that say, Jack?
19
A. If it comes to -
20
Q. -- "suggesting theelimination of
2 1
anything that he" -
22
A . Believes.
23
Q. -- "believes is even remotely
mt .
VMtJ
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1727
covered by Dr. Gardner's notes. My information
2
from" --
3
A . Derives from.
4
Q*
-- "Johns-Manville's experience with
5
him in" -- there is the diatomaceous earth
6
experiments.
7
A . Yes .
8
Q* In fact, you got a letter in your
9
satchel about this, don't you?
10
A.
Yes, I have.
11
Q.
Maybe we will get a chance to show
12
that later.
13
"If the report is limited to the
14
animal experiments, our right to criticize and
15
suggest changes before publication, or even to
16
forbid publication, is unquestionable. If we
17
permit it to be made part of a report covering
18
more than the animal experiments, our position is
19
not so strong.
20
"A situation is developing with the
2 1
miners in Quebec that urgently requires that some
22
report based on Dr. Gardner's experiments be made
23
available as a counter-agent to opinions being
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
expressed and conclusions arrived at by Quebec
physicians and officials upon the basis of
3
surmise, social ideology, and inadequate
4
information.
5
"Time, therefore, is of the essence
6
and your prompt consideration of the report and
7
your advice as to procedure will be
8
appreciated."
9
Do you recall Dr. Pedley in 1930
10
saying that?
11
. A.
Yes, the same thing.
12
Q. Same thing, okay.
13
Now, sir, to your knowledge, did the
14
human asbestosis section ever appear anywhere in
15
the American literature as Dr. Gardner wrote it?
16
A.
No, it did not.
17
Q.
Let me ask you this. Did the
18
section saying we need a new TLV ever appear in
19
the American literature?
20
A.
That did not either.. It would have
2 1
been very helpful if it had.
22
MR. MOTLEY: Your Honor, I believe
23
3965 has been preadmitted.
*Ss.-S7
. V . S h*. -W7 .
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1729
BY MR. MOTLEY:
Q. This is dated two months later,
December the 14th, 1948, it 's on the stationery
4
of the New York University and signed by
5
Tony Lanza. And who is it written to?
6
Dr.Vorwald, who succeeded Dr. Gardner ; correct?
7
A. Yes.
8
Q.
"With respect to the asbestos
9
report, Part I, September 30th, 1948, a meeting
10
of the representatives of the underwriting
11
companies was held in New York. The report was
12
favorably received and it was the general feeling
13
that it was a most satisfactory and excellent
14
jo b .
15
"It was the feeling of this group
16
that a'll references to cancer or tumors should be
17
omitted -- Paragraph 75, Page 31, the
18
introductory paragraphs under 'Complications,'
19
Paragraph 92, Page 39. This request would
20
likewise call for the elimination of any tables
21
relating to this subject matter.
22
"The group felt that there might be
23
included under 'Conclusions' a reference to the
SS
sssssr:
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
nonprogressive character of the fibrosis produced
by the asbestos."
Next page. "It was decided after
4
these revisions have been concluded, the report
5
of these experimental studies should be published
6
as promptly as possible, preferably in the
7
Journal of Industrial Medicine. Any report on
8
human asbestosis should be separate and not a
9
part of this report."
10
MR. McKENNA: Could you read the
11
last paragraph?
12
BY MR. MOTLEY:
13
Q.
"The above comprises the various
14
comments and suggestions which I do not think
15
involves any material change in the report.
16
Please let me know if you wish any further
17
information or discussions of the points raised
18
in this letter."
19
Now, sir, Dr. Lanza says what he
2 0
suggests being eliminated doesn't involve any
2 1
material change.
22
A.
I don't know what he means by that.
23
Obviously the changes have been very significant,
viT-i-i.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1
very material, because they have eliminated
reference to the human aspects of the disease
3
and, of course, the reference to cancer. And
4
that was the most serious omission in the report.
5
Q.
Now, in the -- we have been talking
6
about the human asbestosis part.
7
A.
Yeah.
8
Q.
Do you have -- can you find the
9
experimental part, sir?i
10
A.
Yes, uh-huh.
11
Q.
Page seven, I believe it is.
12
A.
I think I have it here, y e s .
13
Q.
"Complications Ij
14
A.
Yes. Uh-huh.
15
Q.
Now, this is a section that's
16
talking about the animal experiments, not humans;
17
right?
'
18
A. Yes, that's right.
19
Q. You see under "Complications,"
20
"Cancer of Lungs"?
21
A. Yes. I see that.
22
Q. Now, if you look over on the next
23
page, sir, do they call it neoplasm or cancer?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1732
A.
Yes. Well, neoplasm --
Q. No. Does he call it cancer or what?
A. Well, let me see what he calls it
4
here. Well, in this item, he refers to it as
5
malignant tumors, which is the same as cancer.
6
Q.
Well, turn back on the other page
7
and tell us what the section is.
8
A.
You mean the previous page?
9
Q.
Yes
10
A.
"Cancer of Lungs," yes.
11
MR. McKENNA: Mr. Motley, are
12
going to read this to the jury at some point,
13
this section?
14
MR. MOTLEY: Your Honor, I object to
15
Mr. McKenna repeatedly interrupting the way I
16
conduct my examination.
17
THE COURT: Go ahead.
18
MR. McKENNA: Your Honor, I think
19
it's improper for him to allow his witness to
20
summarize the documents and select --
21
. THE COURT: I don't understand that
22
that's what he's doing. But I think it's
23
perfectly appropriate to have a person who is an
ii .svrysss&szjsszii
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1733
expert summarize the content of the document. BY MR. MOTLEY:
Q.
Doctor, my question very simply is
what did Dr. Gardner call it? Did he call it
benign or cancer?
A. about that.
He called it cancer, no question
Q.
Is a benign tumor the same thing as
a malignant tumor?
A.
No. A malignant tumor is cancer. A
benign tumor is a growth which is not a cancer,
but it's also not good to have it either.
Q.
Turn to page eight, please.
A.
Sure. Yes, I have page eight.
Q.
All right. Let's look at what his
conclusions were. Up, please.
Dr. Gardner says, "These
observations are suggestive but not conclusive
evidence of a cancer stimulating action by
asbestos dust. They are open to. several
criticisms. The strain of mice was not the same in the asbestos experiment as in many of the others cited. Apparently, the former were
E&assnsssaa?; rjcaK?.i-v
&-frs*&!vt&
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
unusually susceptible. Not enough animals
survived in the dust for longer than the 15
months apparently necessary to produce many
4
tumors. There were no unexposed controls of the
5
same strain and age and no similar controls
6
exposed to other dusts.
7
"It is hoped that this experiment
8
can be repeated under properly controlled
9
conditions to determine whether asbestos actually
10
favors cancer of the lung."
11
And in Paragraph 5 -- can you look
12
up a little bit, sir?
13
A. Yes, okay.
14
Q. "Of elevenmiceinhaling long fiber
15
asbestos for 15 to 24 months, eight developed
16
malignant tumors." Malignant means cancer?
17
A. Right.
18
Q. "And six of them hadtumorsin other
19
organs. The incidence rate of 81.8 percent is
20
excessive."
2 1
MR. McKENNA: Your Honor, I would
22
request paragraphs three to four be read also.
23
THE COURT: Go ahead. I think
sEpn
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1735
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
2 0
2 1
22
23
that's fair.
BY MR. MOTLEY:
Q.
"Some strains of white mice do
develop tumors without apparent cause.
"Such a strain of white mice was unintentionally used in three inhalation experiments with asbestos."
And let's look at 7. "As controls" -- what does that mean?
A.
A control in an experiment, a
control is simply a way of making a comparison.
For example, you administer a given drug to a
group of patients for disease, and then you have
another group of patients with the same disease, let's say, but you give them a sugar pill. It's not a drug. They are a control, you see.
It's a way of comparing, in this case, you have mice who are exposed to the
asbestos dust, and another group of mice that are
controls that are not exposed, and you then
examine them and see what happens to them.
Q.
"As controls, we have only the
experience with mice in other dust experiments."
2:riviti
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
And then he mentions pure quartz?
A. Yes.
Q.
What disease does pure quartz cause?
4
A.
Quartz, of course, causes silicosis.
5
Q.
So in the animal experiments, he was
6
comparing the lung cancer from asbestos with the
7
lung cancer from silica; right?
8
A.
Exactly, yes.
9
Q.
The same thing he was doing with the
10
humans; right?
11
A.
Exactly, yes. And similar to the
12
observations of Dr. Meriwether, whom we referred
13
to earlier, where he found that those people
14
exposed to asbestos got excessive lung cancer but
15
those with silicosis did not. And apparently
16
Dr. Gardner got similar results with the mice.
17
MR. MOTLEY: Your Honor, what time
18
did you want to take a morning recess?
19
THE COURT: Now would be fine if
20
it's appropriate?
21
MR. MOTLEY: Yes, sir.
22
THE COURT: We will take a recess,
23
folks, for about ten minutes.
rsS
1
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 173
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
(A recess is taken.) (In open court with a jury present:) THE COURT: Members of the jury, Mr. Motley indicated yesterday -- folks, can we get settled, please?
M r . Motley indicated yesterday when he began this line of questioning with Dr. Abrams that this evidence is applicable only to Metropolitan Life. You should understand it has no application to any of the other defendants. BY MR. MOTLEY:
Q*
Dr. Abrams, have you reviewed
correspondence between and among the sponsors and
Dr. Lanza prior to the publication of the version
of Dr. Gardner's original work which I'm going to
show you in a moment in 1951?
k*
Yes.
correspondence.
Yes, I have seen that
Q* What was the companies' and Dr. Lanza's reaction in general terms, and then I
show you a document to the section on cancer ?
A. Well, they very definitely
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
recommended that it be excluded, that no word
2
about cancer be mentioned in the report.
3
Q.
3868 is already in evidence. It's
4
November 12th, 1948, it's from Vandiver Brown of
5
Johns-Manville, and I want to just concentrate on
6
this. "it was the unanimous opinion, however,
7
that the reference to cancer and tumors should be
8
deleted, and this is a point we will insist upon
9
for the following reasons.
IO
"The experiments were not directed
11
toward determining the incidence, if any, of
12
cancer as a result of asbestos dust exposure.
13
"Dr. Gardner indicated prior to his
14
death that he believed this aspect should be made
15
the subject of a separate study, which would take
16
from two to three years.
17
"Dr. Gardner also indicated that he
18
believed the question of cancer susceptibility
19
should be omitted from the report. This
20
statement is contained in his letter to me of
21
February 24, 1943, with which he enclosed his
22
outline of a proposed monograph on asbestosis.
23
"It also appears from Dr. Gardner's
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1739
1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 2 1 22 23
outline that certain strains of white mice develop tumors without apparent cause and that 'such a strain of white mice was unintentionally
used in three inhalation experiments with asbestos.
MR. McKENNA: read the next paragraph. BY MR. MOTLEY:
Excuse me.
Could you
Q*
"A considerable number of other
changes in the report will be suggested to
^aranacr but they relate to form and to emphasis
rather than to substance, and I believe there is
no necessity of detailing them in this report to
you. "
I'm glad you asked me to do that. Do you think eliminating the whole section on human asbestosis related to form rather than substance ?
A.
Do I think that it's related -- it
certainly related to substance, not form, yes.
Q*
Do you think that the suggestion
that TLV wasn't any good is related to form and
not substance?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
]_
A.
It's related to substance, of
2
course, yeah.
3
Q.
Is that something as a public health
4
expert you would have liked to have known?
5
MR. McKENNA: Your Honor, I object.
6
Because this letter is referring to a report
7
Mr. Motley has not shown the witness, and the
8
question he is asking is trying to relate this
9
letter to the other document, the outline.
10
MR. MOTLEY: Your Honor, the Doctor
11
has seen the report. That's a misstatement of
12
fact by Mr. McKenna. We move to introduce it
13
right now, Plaintiff's Exhibit 4170.1.
14
BY MR. MOTLEY:
15
Q.
Do you think, Doctor, that ten
16
people who died of asbestosis and also had lung
17
cancer relates to form or substance?
18
A. Substance, of course. It's
19
unfortunate it wasn't reported or wasn't
20
published, I should say.
21
Q.
Now, this is Exhibit 4170. Have you
22
looked at that for us, too?
23
A. Yes, I have seen that.
SSire
559fiS&2rS5
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1741
Q.
Exhibit 3963 has been preadmitted,
sir, and it's a letter dated September 30th -
excuse me, November 30th, 1948, from Mr. Woodard
of Johns-Manville to Mr. Gatke with a copy to
A. Company.
J. Lanza, Metropolitan Life Insurance
"As requested at the meeting, I have discussed with Dr. Lanza his taking up with
Saranac the matter of revising the report and Pitting it in the shape that we agreed upon.
Dr. Lanza as agreed to do this for us. I might
add that this is just another instance where
Dr. Lanza is freely giving his time and effort in
helping us along on this program, and I think he
deserves the thanks of all of us."
Now, let's see what Dr. Lanza did
for him. I want to show you the section, sir -
I don't have but one copy -- it says revised,
January 31st, 1949, and over on the section on
cancer, let's see what Dr. Lanza did for them.
MR. McKENNA: Your Honor, I object to Mr. Motley repeatedly testifying. He says
this is Dr. Lanza's handwriting when it's
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1742
1
D r . Vorwald's .
2
THE COURT: Stop. Absent a witness
3
to testify to that, then the jury is going to
4
have to draw whatever conclusions it can. But I
5
don't think editorial comment is appropriate
6
about the evidence by either counsel.
7
BY MR. MOTLEY:
8
Q.
Since he said what he said, "I might
9
add that this is just another instance where
10
Dr. Lanza is freely giving his time and effort in
11
helping us along on this program, and I think he
12
deserves the thanks of all of us."
13
Did I read that right?
14
A.
That's correct, yes.
15
Q.
"I have discussed with Dr. Lanza his
16
taking up with Saranac the matter of revising the
17
report and putting it in the shape that we agreed
18
upon. Dr. Lanza has agreed to do this for us."
19
Did I read that right?
20
A.
Yes, uh-huh.
21
Q.
I want to show you the cancer
22
section.
23 .
MR. McKENNA: Objection, Your Honor.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
The section is not labeled cancer. Mr. Motley is
2
testifying again.
3
THE COURT: My recollection, it's
4
labeled neoplasm or something.
5
MR. MOTLEY: Neoplasm.
6
THE COURT: Go ahead. You may ask
7
the question.
8
BY MR. MOTLEY:
9
Q.
What does neoplasm mean to you, sir?
10
A.
Well, neoplasm is a fancy word that
11
literally means new growth, but in medical terms
12
we usually think of it.as cancer. Neoplasm is a
13
term that doctors often use to refer to cancer.
14
Q.
What did Dr. Gardner call that
15
section we looked at earlier?
16
A.
Well, I can't read it from here or
17
see it, but I think he used the term cancer, if I
18
recall.
19
Q.
Section III, what did he call it?
20
A.
He called it "Cancer of the Lungs."
21
Q.
Do you see this, sir. Neoplasm,
22
Paragraph 92?
23
A.
Yes, I see it now.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1744
' 1
Q.
Okay. Do you see anything -- what
2
is that, an X out?
3
A.
You mean scrawled across it? Yes.
4
I think it says "Out," yes, that's right.
5
MR. McKENNA: Your Honor, I would
6
request that the section be read to the jury now
7
that they have been directed to the big "Out." I
8
think we should read the text.
9
THE COURT: Go ahead.
10
MR. MOTLEY: It's in evidence,
11
Your Honor. It's our only copy. It's hard to
12
read. I will do the best I can. Do you have a
13
copy?
14
MR. McKENNA: Here is a clean copy.
15
MR. MOTLEY: It's retyped?
16
MR. McKENNA: No. That's an
17
original document.
18
MR. MOTLEY: Where is the X?
19
MR. McKENNA: It's not there.
20
MR. MOTLEY: I'm just asking him.
21
He said it was the original one, and I want to
22
know where the X was.
23
"No specific experiment was
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1745
1
conducted to determine where the inhalation of
2
asbestos favors the development of neoplastic
3
disease, but certain observations on the subject
4
were recorded in the outline of the proposed
5
monograph on asbestosis submitted by the late
6
Dr. Gardner in February 1943.
7
"In it he called attention to the
8
high incidence of lung cancer among mice inhaling
9
lung fiber asbestos. in his experimental notes,
10
however, he referred to these lesions as
11
adenomas. There is
12
between adenoma and
13
clear. A cancer is
14
Do you
15
A.
Yeess,, a cancer is a tumor, yes.
16
Q.
"Or neoplasm"?
17
A.
Thaft's right. Yes.
18
Q.
"Capable of local invasion and
19
destruction of tissue which can distribute cells
20
through the lymphatics or blood stream to produce
21
isolated foci from which new tumors develop.
22
This phenomenon of dissemination is known as
23
metastasis ."
SK
:**'.err
i__
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1746
1
What does metastasis mean?
2
A.
It simply means spreading of the
3
cancer.
4
Q.
"And any tumor which exhibits it is
5
a malignant growth of which cancer is one type.
6
And adenoma, on the other hand, is a so-called
7
benign or nonmalignant tumor, neoplasm, which may
8
or may not be capable of local invasion but which
9
does not metastasize. .
10
"In order to clarify the exact
11
nature of theselesions, the pathological
12
material is being carefully examined. Since it
13
is felt desirable to have the benefit of
14
Dr. Vorwald's judgment, a review of the data on
15
this subject is being postponed until after his
16
return from Europe rather than delay the entire
17
report.
18
"Further discussions will be
19
reserved for a supplement to be issued later."
20
MR. McKENNA: Thank, you.
21
BY MR. MOTLEY:
22
Q.
Now, I have a document here that -
23
are you familiar with that, sir?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1747
A. Yes, I am.
Q. What is that?
3
A. It is entitled, "Experimental
4
Studies of Asbestosis," by Arthur Vorwald, Thomas
5
Durkin, Philip Pratt in the A.M.A. Archives of
6
Industrial Hygiene and Occupational Medicine,
7
January 1951.
8
Q.
Is this what eventually was
9
published in the literature?
10
A.
Yes. This is a publication, yes.
11
Q.
And this was what was published for
12
the doctors to see; right?
13
A. That's correct.
14
Q. Have you looked at that to see
15
whether or not there is anything about cancer in
16
there ?
17
A.
Cancer has been carefully omitted
18
from that report.
19
Q. Anything about the TLV not any good?
20
A. That also has been deleted from it.
21
Q.
Anything in there about human
22
asbestosis ?
23
A.
Also deleted.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1748
Q.
Anything in there about
Dr. Gardner's conclusions about lung cancer with
3
asbestosis?
4
A.
Also omitted.
5
Q.
Now, this is
the bottom of what
6
they published for the world to see. "Although
7
partial reports and informal reviews of some the
8
experiments had been given fr om time to time by
9
Dr. Gardner, this paper prese nts for the first
LO
time a complete survey of the entire experimental
.1
investigation."
.2
Is that true?
.3
A.
Obviously it was not complete
4
because they omitted these important aspects that
.5
we just ment ioned.
6
Q.
And so to be clear, Doctor, the
7
experimental part of this he called part two
8
Part one was human asbestosis?
9
A.
That's right.
O
Q.
And part two was experimental
1
asbestosis?
2
A. Correct.
3
Q. Correct? Where in the paper, part
asse
'min,Mi. w'-A.;*.--
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
3 4 5 6 7 8 9
10
11 12 13 14 15 16 17 18 19
20
2 1
22
23
one, human asbestosis, or part two, experimental
asbestosis, did he recommend that the TLV was no good?
A.
Well, he recommended it in his -
Q. In part two?
A*
in his material that he left on
his death, yes. But of course, it was not
published.
Q.
But was it in part two?
A. Oh, yes, I think that was part two.
Q. And part two was entitled experimental asbestosis?
A. That's right, uh-huh.
Q. Part two, experimental asbestosis, recommendation of a new standard of safe
atmospheric concentrations of asbestos dust?
A.
Yes.
Q.
Now, Doctor, you are not a mouse
specialist, are you?
A.
No, not particularly.
studied that particularly.
I haven't
Q. your life?
Have you set a few traps for mice in
rti-r- -- --
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1750
1
A.
That I have.
2
Q.
There are doctors who are mice
3
specialists ; right ?
4
A.
Well, those who use them in
5
experimentation, sure.
6
Q.
And you are not telling this jury
7
you are one of those, are you?
8
A.
That's right, I'm not that kind of
9
an investigator.
10
Q . Why -- you have told this jury that
11
I think the human asbestosis and human cancer 9
12
animal cancer and TLV is no good, should have all
13
been published. Will you explain your answer in
14
light of the fact you are not a mouse expert ?
15
A.
Well, your question is why would it
16
have been important ?
17
Q
No, sir. Let me -
18
A.
Yes .
19
Q.
You have already told the jury that
20
the human asbestosis section should have bee n
2 1
published including the part about cancer in
22
humans; co rrect?
23
A.
Right.
tujk
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1751
Q.
You have told the jury that the
2
experimental animal study that mentioned cancer
3
should have been published?
4
A. Yes, that's right.
5
Q. And you told them that this part
6
about the TLV wasn't any good should have been
7
published; correct?
8
A. Correct.
9
Q.
Now, I want you to explain to the
10
jury why you think it's important, since you are
11
not a mouse doctor, for all of that to have been
12
published?
13
A.
Well, I think it would have been
14
vital to have published that particularly at that
15
time in history because it would have accelerated
16
our knowledge and would have prevented a lot of
17
loss of life and misery which have occurred since
18
by people being exposed to asbestosis.
19
So if we had had that knowledge at
20
that time, we would have been able to develop
21
preventive measures, would have been able to
22
control it and prevent a lot of human suffering.
23
MR. McKENNA: Your Honor, I move to
wWflMU
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1752
1
strikei th e answer as speculative. There is no
2
basis for the answer at all .
3
THE COURT: Overruled.
4
MR. MOTLEY: Your Honor, I didn 't
5
hear the ruling.
6
THE COURT: I said overruled.
7
MR. MOTLEY: The answer stands,
8
thank you
9
BY MR. MOTLEY:
10
Q.
Now, Doctor , in the '40s and '5i0s
11
and up un'til Dr. Selikof f in 1964, did some
12
doctor S S'till cla im asbe stos didn't cause cainet
13
A.
Oh, yes. That was debated over a
14
number of years, that's true .
15
Q.
I'm going to hand you --
16
A.
That 's why it would have been
17
important to have published this material,
18
because it would have helped to resolve that
19
question.
20
Q. I've handed you an article by
2 1
Dr. Richard Doll.
22
A . Yes .
23
Q
Tell the jury about Dr. Doll?
isSas
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
A.
Dr. Doll is -- I think he's still
living -- is a famous scientist in England, and
3 well known in this country as well, and he's done
4
a number of studies on asbestos as well as other
5
health issues. And he published some of the
6
important studies of asbestos workers. This one
7
is entitled "Mortality from Lung Cancer in
8
Asbestos Workers" published in the British
9
Journal of Industrial Medicine in 1955.
10
Q.
Now, if you look at the second, the
11
bott.om of the first column, do you see a
12
discussion by Dr. Doll, of people who disbelieved
13
or still wrote that asbestos didn't cause cancer
14
in 1955?
15
A.
Yes , I see that. Shall I read that?
16
Q.
Yes , sir, please dp .
17
A.
Well, I'll start with, "The majority
18
of workers, parentheses, cited by Hueper, 1952."
19
Hueper, incidently, was an American
20
scientist.
21
"The majority of workers, cited by
22
Hueper in 1952, consider that a causal
23
relationship between asbestosis and lung cancer
w
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY
is either proved or is highly probable, and that
the reality of the relationship was agreed at the
3
recent International Symposium on the Endemiology
4
of Lung Cancer, Council of the International
5
Organizations of Medical Sciences in 1953. A
6
minority, however, remains skeptical."
7
And in parentheses, he names
8
Cartier --
'
9
Q.
Cartier was with the Quebec Asbestos
10
Mining Association, wasn't he?
11
A.
That's right. Cartier, a Warren,
12
and according to Hueper, Lanza and Vorwald.
13
Q.
We know who Lanza is. We know who
14
Vorwald is.
15
A.
That's right.
16
Q.
We know who Cartier is.
17
Do you know who this guy Warren is?
18
A.
I don't recall offhand who Warren
19
was.
20
Q.
Do you know how long Dr. Lanza and
2 1
Dr. Vorwald and Dr. Cartier and other people
22
associated with the asbestos industry claimed
23
that asbestos didn't cause cancer?
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1755
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 . 17 18 19 20 2 1 22 23
A. How long?
MR. McKENNA: Objection, Your Honor.
A. I don't recall now.
document.
MR. McKENNA: It misstates the
THE COURT: the answer anyway.
Okay.
He doesn't know
BY MR. MOTLEY:
Q. All right. I want to move to
another section, Your Honor. I hope I don't have
more than about fifteen minutes left. 4813.
Now, I want to refresh the record
here. When you were talking yesterday about
diatomaceous earth and you first started going to
the Johns-Manville facility, you told the jury
that you were reassured by the company. And what
did they tell you exactly?
MR. McKENNA: Objection,
Your Honor. This has been gone over yesterday in
great -- several times.
something. MR. MOTLEY: I want to tie it in to
THE COURT: Go ahead.
.'-.-teste:
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
BY MR. MOTLEY:
Q.
What were the words you used?
A.
Well, they tried to show me that
4
there were no new cases developing, that in
5
essence the hazard was under control.
6
Essentially that's what they told me.
7
MR. MOTLEY: Your Honor, this is
8
preadmitted Exhibit 4813.
9
BY MR. MOTLEY:
_
10
Q.
This is the annual report, ladies
11
and gentlemen, of the Metropolitan Life
12
Industrial Health Section, 1945. I want to
13
publish this part.
14
"Mr. W. G. Hazard, director of the
15
Industrial Hygiene Division of the Department of
16
Health of New Jersey, was ordered by the War
17
Production Board." What was that?
18
A.
Well, that was a board or an agency
19
set up by the federal government during World War
20
II, War Production Board.
21
Q.
"To make an investigation of the
22
plant of the Johns-Manville Corporation at
23
Manville on the basis that there were a number of
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1757
unhealthy working conditions in the plant
accounting for a large labor turnover.
"Due to the fact that we have
4
periodically been surveying this plant,
5
Mr. Hazard asked that we make the survey. Our
6
investigations indicated that the asbestosis
7
hazard was adequately controlled and had been for
8
a number of years. Mr. Hazard accepted our
9
findings and made his report to the War
10
Production Board. The case was closed."
11
Okay. That's essentially the same
12
thing they told you; right?
13
A. Same thing.
14
Q. Well, let's look at what wasreally
15
happening in that plant. Exhibit 510.
16
MR. MOTLEY: It's been preadmitted,
17
Your Honor.
18
BY MR. MOTLEY:
19
Q.
Here is the Industrial Hygiene
20
Foundation of America. Do you see that, sir?
21
A. Yes.
22
Q. Is that the same groupthat Met Life
23
and Johns-Manville tried to get you to go along
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 with the study?
2
A. Exactly.
3
Q. Report of Preliminary Dust
4
Investigation for the Asbestos Textile Institute,
5
June 19 47 ; okay ?
6
Page 15, sir. Will you look at
7
that?
8
A. Okay.
9
Q.
"Plant J has countedpotential cases
1
of asbestosis amounting in number to about 20
11
percent."
12
A. I see that.
13
Q.
Does that sound likethat plant was
14
under control?
15
A. Hardly. That's quite a high
16
percentage.
17
Q. Guess what Plant J was? Do you know
18
what Plant J was, sir?
19
A. I don't recall Plant J.
20
MR. McKENNA: I don't think he
21
should be able to speculate.
22
THE COURT: Correct.
23
MR. MOTLEY: Well, I have got the
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1759
1
2 3 4 5 6 7 8 9
10 11
12 13 14 15 16 17 18 19
20
21 22 23
full report. I will put it in evidence. BY MR. MOTLEY:
Q. New Jersey.
Assume that Plant J was Manville,
MR. McKENNA: Objection, Your Honor.
A.
Yes. I didn't know what you were
referring to. Plant J is --
.
THE COURT: Sustained. THE WITNESS: It's the same plant that is referred to in this recommendation by the War Production Board.
MR. MOTLEY: Thank you.
response. MR. McKENNA: Move to strike the
evidence.
MR. MOTLEY: Your Honor, it's in It says Plant J.
that?
MR. Mc KENNA: Your Honor -- THE COURT: Where does it say that? MR. McKENNA: Where does it say
.
MR. MOTLEY: It's in evidence. I will have to get the original over here after lunch.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY 1760
1
2
us ?
MR. McKENNA: Can you give it to
3
MR. MOTLEY: I will give it to you.
4
MR. McKENNA: I think it's improper
5
for the witness -
6
THE COURT: If he doesn't know
7
independently, I think the objection is well
8
founded.
9
MR. MOTLEY: I can ask him
10
hypothetically, can't I?
11
THE COURT: If you can connect it
12
up.
13
MR. McKENNA: He's not asking an
14
expert opinion.
15
THE COURT: Let's hear whether he is
16
asking him an expert opinion.
17
MR. McKENNA: The question he posed
18
w a s n 't .
19
BY MR. MOTLEY:
20
Q.
Dr. Abrams, did I show you a
21
document last night that showed what Plant J was?
22
A.
Yes, you did. When you asked me the
23
question, I didn't remember the alphabetical
HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1761
1
designation, but I recall that you showed me that
2
data.
3
Q.
Let me ask you to assume that Plant
4
J was Johns-Manville.
5
A. Manville, yes.
6
Q. Does that indicate to you, sir,
7
whether or not that plant was under control?
8
A.
Well, obviously it was not under
9
control. They had a 20.percent attack rate of
10
asbestosis in their workers, so that it was
11
contradictory to the statement earlier that it
12
was adequately controlled.
13
Q.
Finally, sir, you have told this
14
jury that you, Herbert Abrams, knew that asbestos
15
caused disease in the '40s, have you not?
16
A.
Oh, yes. That's correct.
17
Q.
And you have testified here and on
18
previous occasions there was sufficient
19
information in the literature to establish that
20
asbestos was a hazard to human beings at least in
21
the '40s?
22
A.
No question. By 1930 it was very
23
well established.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1
Q.
Who were the only people that didn't
2
know that asbestos would kill you?
3
A.
Well, the only people -
4
MR. McKENNA: Objection,
5
Your Honor.
6
A.
-- were the most important people,
7
the working people who were exposed to -
8
THE COURT: Overruled.
9
A.
-- to asbestos. They were not given
10
the information, unfortunately.
11
Q.
You yourself wrote articles in 1948;
12
correct?
13
A.
That's correct.
14
Q . 1953?
15
A . Yes.
16
Q.
Here is one you wrote in 1961;
17
correct?
18
A.
Yes, that's right.
19
Q.
Did you make presentations at
20
medical groups?
2 1
A.
Yes. Well, this one I believe was a
22
presentation I made to the National Safety
23
Council in that year, I believe it was 1961.
HERBERT ABRAMS, MD
DIRECT BY MR. MOTLEY
1 National Safety Congress, yes.
2
MR. MOTLEY: I will pass the
3
witness, Your Honor. Thank you, Doctor.
4
Oops, excuse me.
5
BY MR. MOTLEY:
'
6
Q.
Doctor, every expert who takes the
7
witness stand is asked this question. Have you
8
testified before ?
9
A.
I have, yes .
10
.
Q*
On numerous occasions?
11
. A.
More or less, y es .
12
Q.
And you charge a fee for your time ?
13
A.
I do.
14
Q.
And you expect and hope to be paid?
15
A.
I hope so.
16
MR. MOTLEY: I don't see Mr. Segal
17
in here. I was able to blame him the other day.
18
I hope you get paid too, sir. Thank you.
19
MR. McKENNA: Your Honor, it may
20
take a few minutes to get set up.
21
THE COURT: Why don't we do the
22
general questioning by the other defendants
23
first. Can we do that?