Document gbwG5d2865yE9ev1G9zdMmmeq

IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION JOSEPH MALLIA, and GALE MALLIA, hiswife, Plaintiffs, vs. BENNETT AUTO SUPPLY, et al., Defendants. ) ) ) ) ) ) No. ) ) ) > ) 04-16237 CA 42 I jj I j j j j j VIDEOTAPED DEPOSITION OF DENNIS J. PAUSTENBACH, PH.D., D.A.B.T. San Francisco, California Friday, July 1, 2005 Reported By: MARY F. NELSON CSR No. 3553 Job No. 63740 rrsr. ESQUIRE DEPOSITION SERVICES (415) 288-4280 3 5 SCF-ALLF-11050 1 IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND FOR DADE COUNTY, FLORIDA 2 ' GENERAL JURISDICTION DIVISION 3 JOSEPH MALLIA, and GALE MALLIA, his wife, 4 Plaintiffs, 5 vs. 6 BENNETT AUTO SUPPLY, et 7 al., 8 Defendants. 9 ) ) ) ) ) ) No. 04-16237 CA 42 ) ) ) ) ) ) 10 11 12 13 14 VIDEOTAPED DEPOSITION OF 15 DENNIS J. PAUSTENBACH, PH.D., D.A.B.T., 16 taken on behalf of Plaintiffs at 201 17 Second Street, Suite 1800, San Francisco, 18 California, beginning at 9:10 a.m. and 19 ending at 6:52 p.m., Friday, July 1, 20 2005, before MARY F. NELSON, Certified 21 Shorthand Reporter No. 3553. 22 23 24 25 ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 2 iI i i i i 1 III? s l 1 APPEARANCES 2 For Plaintiffs: . 3 THE RUCKDESCHEL LAW FIRM LLC BY: JONATHAN RUCKDESCHEL 4 Attorney at Law 1635 Webster Street 5 Baltimore, Maryland 21230 443-286-8858 O For Plaintiffs: 7 DAVID M. LIPMAN, P.A. BY: REBECCA S. SHULL 8 Attorney at Law 5901 S.W. 74 Street, Suite 304 9 Miami, Florida 33143-5186 305-662-2600 10 For Defendants Ford Motor Company and General Motors: 11 THELEN, REID & PRIEST LLP 12 BY: PAUL V. LANKFORD 101 Second Street, Suite 1800, 13 San Francisco, California 94105 -3601 415-371-1200 14 For Defendants Ford Motor Company and General Motors: 15 SALAS, EDE, PETERSON & LAGE 16 BY: HENRY BELL Attorney at Law 17 6333 Sunset Drive S. Miami, Florida 33143 18 305-663-0000 Telephonic Appearance 19 For Defendant Bennett Auto: 20 CLARKE, SILVERGLATE, CAMPBELL, 21 WILLIAMS & MONTGOMERY BY: CRAIG SALNER 22 Attorney at Law 799 Brickel Plaza, Suite 900 23 Miami, Florida 33131 305-377-0700 24 Telephonic Appearance 25 ESQUIRE DEPOSITION SERVICES (415) 288-4280 -fr~.ti.oC--y*>t~i VrtbjjJaqt Page 3 ! 1 For Defendant Mack Trucks: 2 HOLLAND & KNIGHT BY: THOMAS BURKE 3 Attorney at Law 200 S. Orange Avenue, Suite 2600 4 Orlando, Florida 32801 407-244-1145 5 Telephonic Appearance 6 For Defendant Pneumo Abex: 7 LAW OFFICES OF BEN GIRTMAN BY: BEN GIRTMAN 8 Attorney at Law 1020 E. Lafayette, Suite 207 9 Tallahassee, Florida 32301 850-656-3232 10 Telephonic Appearance 11 Also Present: 12 THE HONORABLE HERBERT KLINE Special Master 13 Telephonic Appearance 14 Also Present: JENNIFER S. PIERCE, M.S. 15 Associate Health Scientist ChemRisk 16 25 Jessie Street, Suite 1800 San Francisco, California 94105 17 Also Present: 18 DONOVAN BAUER 19 Videographer Esquire Deposition Service 20 21 22 23 24 25 ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 4 I ;5 j | | | i 1 INDEX 2 WITNESS EXAMINATION 3 DENNIS J. PAUSTENBACH, PH.D., D.A.B.T. 4 BY MR. RUCKDESCHEL 8 DC. 6 EXHIBITS 7 PLAINTIFFS' PAGE 8 1 Deposition notice; 5 pages. 8 9 2 Protective'order; 2 pages. 11 10 3 Curriculum vitae; 102 pages. 37 11 4 Article entitled, "An Evaluation of the Historical Exposures of 12 Mechanics to Asbestos in Brake Dust"; 19 pages. 13 5 Pamphlet entitled, "Guidance For 14 Preventing Asbestos Disease Among Auto Mechanics"; 18 pages. 15 6 Article from the New Jersey Star 16 Ledger dated 3/7/04; 2 pages. 83 85 102 17 7 Article entitled, "Chromium Pollution of Soil and Water in 18 Jinzhou"; 8 pages. 109 19 8 Article entitled, "Mesothelioma in Household Members of Asbestos- 20 Exposed Workers: 32 United States Cases Since 1990"; 5 pages. 21 9 Contract between ChemRisk and Pacific 22 Gas & Electric; 11 pages. 131 137 23 10 List of Toxic Substances; 1 page. 176 24 11 List of depositions or trial testimony between August 18th, 2003 and 1990; 25 1 page. 179 ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 12 Witness's case notes for this case; 30 pages. 4?. 13 List of Paustenbach Industry Clients; 3 1 page. 4 14 Pamphlet entitled, "Controlling Brake Dust to Protect Your Health"; 6 pages. DC 15 Chart entitled, "Brake Epidemiology 6 Studies"; 1 page. 7 16 Article entitled, "Mesothelioma Among Brake Mechanics: An Expanded Analysis 8 of a Case-Control Study"; 6 pages. 9 17 Chart entitled "Asbestos Disease"; 1 page. 10 18 Article entitled, "The Epidemiology 11 Of Asbestos-Related Diseases in Quebec"; 85 pages. 12 19 Article entitled, "Analysis Techniques 13 Help IEs Evaluate Ethical Dimensions Of On-The-Job Decisions"; 6 pages. 14 20 Hand-drawn pie chart; 1 page. 15 21 List of testimony going back to 16 2001; 7 pages. 17 22 Various abstracts; 15 pages. . 18 23 PowerPoint presentation of abstract entitled, "Chrysotile Asbestos ' 19 Exposure Associated with Removal of Automobile Exhaust Systems, (Circa 20 1950-1974); Preliminary findings of ' a Simulation Study"; 22 pages. 21 24 PowerPoint presentation of abstract 22 entitled, "Cumulative Occupational Asbestos Exposure of U.S. Brake 23 Mechanics"; 22 pages. . 24 25 PowerPoint presentation of abstract Entitled, "Evaluating Asbestos 25 Exposure Associated with Vehicle Brake Cleaning and Machining Activities ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 6 180 i 180 185 197 229 234 238 ; : 1 : 263 263 303 303 307 ! ] I j 307 , 307 , 1 Using Short-Term and TWA Measurements"; 24 pages. 2 26 PowerPoint presentation of abstract 3 Entitled, "An Evaluation of Historical Exposures of Mechanics to Asbestos 4 From Brake Repairs"; 24 pages. 5 6 7 8 9. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 7 308 i is 3 Page 8 1 San Francisco, California, Friday, July 1, 2005 2 9:10 a.m. - 6:52 p.m. 3 4 DENNIS J. PAUSTENBACH, PH.D., D.A.B.T. 5 having been first duly sworn, was examined and 6 testified as follows: 7 8 EXAMINATION 9 BY MR. RUCKDESCHEL: 10 Q Good morning, Dr. Paustenbach. My name is Jon 11 Ruckdeschel. I represent Joe Mallia in this case. 12 (Plaintiffs' Exhibit 1 was marked for 13 identification by the court reporter.) 14 BY MR. RUCKDESCHEL: ' 15 Q I've.placed in front of you what has been 1 I 4 i 16 marked as deposition Exhibit 1. It is a notice of 17 today's deposition. Have you seen that document 18 before? 19 A Yes. 20 Q And attached to Exhibit 1 is a schedule of 21 documents that were requested to be produced and I'd 22 like to walk through these and ask you whether you have 23 produced the documents for each number. I don't want 24 to ask you anything about them. I want to ask if you % ] 25 brought them. Have you brought No. 1, your CV? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A Yes. Page 9 1 2 Q And No. 2, documents relating to this case? 3 A Yes. . 4 Q Does that include correspondence regarding 5 this case? 6 A Yes. j 1J 7 Q Have you brought a list of prior cases in 8 which you testified as an expert? j ?* 4J 9 A I don't know. 10 Q Can you explain that to me? 11 A I don't know if I brought I it or not. I'd be 12 happy to provide it. 13 Q All right. 14 A Normally there is a restriction on the time. 15 They usually have a four-year limit. Yours is 16 seemingly infinite. 17 Q It is. 18 A I was surprised to see that. You need to tell 19 me what you need and I'll be happy to give it to you. 20 Q There were objections to the deposition and 21 the judge made a ruling and his ruling was the 22 protective order was denied with regard to the 23 materials in your deposition notice. So in other 24 words , the judge has ruled that the orders, I'm sorry, 25 the documents are to be produced. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A Really? Page 10 2 MR. LANKFORD: I'm not sure that's the scope of 3 the order as I understand it, and I actually did read a 4 copy of it. However, obviously, the parties are going 5 to produce what there obligated to produce by the court. 6 BY MR. RUCKDESCHEL: 7 Q Do you have any list of prior cases with you? 8 A I don't know. But like I said, I'll be happy 9 to provide it. It's not a problem for me. 10 Q Have you provided such lists in the past in 11 depositions? 12 A In the federal court cases I'll provide a 13 four-year requirement that is expected. 14 Q And at times has your CV contained attachments 15 that included lists of cases that you had testified in 16 as an expert? 17 A At one point it did, yes. 18 Q And when it did was the list accurate? 19 A Sure. 20 Q To the best of your knowledge was the list 21 complete? 22 A When it did I think it was complete, yes. 23 MR. RUCKDESCHEL: Okay. Just so that the 24 record is clear, let me go ahead and mark as Exhibit 2 25 in this deposition, and I don't need to show it to you, ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 11 j 1 Dr. Paustenbach, unless you'd like to see it, a copy of 2 the judge's order regarding the motion for protective | 3 order. 4 (Plaintiffs' Exhibit 2 was marked for 5 identification by the court reporter.) 6 BY MR. RUCKDESCHEL: 7 Q Let's move forward to No. 5 if you're done ! 1 e i j 8 with that document, Doctor. Have you brought with you 9 documents reflecting payment regarding this matter? i 10 A I don't know. I think the lawyers were going 11 to assemble that for you. 12 MR. RUCKDESCHEL: Okay. Counsel, do you know j 13 if those documents are present? No. 5? 14 MR. LANKFORD: In terms, I believe that j 15 documents have been produced to your office regarding 16 billings and the documents speak for themselves in terms ! 17 of this. 18 MR. RUCKDESCHEL: The documents that have been 19 produced regarding billings do not reflect payment in 20 this case.. And so I would request that those documents 21 be produced while we're here at the deposition so we can 22 have a copy of Dr. Paustenbach's bills or any documents 23 that relate to billings in this case. ; i 24 MR. LANKFORD: Again, we'll produce what we're 25 obligated to produce under the order of the court and ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 12 1 within a reasonable period. And this order was signed 2 yesterday. 3 MR. RUCKDESCHEL: Counsel, why don't we go off 4 the record. 5 THE VIDEOGRAPHER: Off the record. The time is 6 9:15. 7 (Discussion off the record.) 8 THE VIDEOGRAPHER: Back on the record. The 9 time is 9:17. 10 BY MR. RUCKDESCHEL: 11 Q Doctor, so the record is clear, it's my 12 understanding that you do not have with you No. 4 or 13 No. 5? 14 A To the best of my knowledge I don't. 15 Q Okay. What about No. 6? 16 A I understand that those have been produced to 17 you so I didn't bring them today. 18 Q The documents produced by General Motors 19 regarding payments to ChemRisk have been redacted and 20 let's be clear for the record. You have not brought 21 them with you today; is that correct? 22 A Right. For the reason I said. I was told they 23 were already delivered. | 3 24 Q What about No. 7. The copies of publications 25 authored all or in part by you? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 13 1 A I didn't bring all of these because I was 2 frankly, didn't think that's what you really wanted. 3 You wanted all 300 publications or did you want those 4 related to this case? 5 Q No, we requested all 300 publications. 6 A I'm happy to share them with you. 7 Q Okay. 8 A If that's what the court says I should do I'd 9 be happy to share them with you. i j< 1| ! t ! 10 MR. LANKFORD: Let's go off the record for a 11 second. $i i| 12 THE VIDEOGRAPHER: Off the record. The time is 13 9:18. 14 (Discussion off the record.) | 15 THE VIDEOGRAPHER: Back on the record. The 16 time is 9:21. 17 BY MR. RUCKDESCHEL: 1]i 13 18 Q Thank you. Doctor, we've been off the record 19 for a minute and there has been some discussion between 20 counsel and between you and I, and it's my 21 understanding that as long as there is no objection 22 from counsel for General Motors and Ford that you are 23 willing to provide copies of the publications in No. 7? 24 A If there is no objection and the judge says j * 25 it's appropriate I'd be happy to. ; ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Okay. Have you brought with you No. 8, Page 14 2 studies and publications upon which you rely in this 3 case? 4 A Yes. 5 Q And can you or someone here get those out for 6 me, please? 7 A Sure. Do you want that done right now? Do you 8 want them on the table, Counsel? 9 Q No, that's fine. My colleague here will take 10 a look at those. 11 A Okay. 12 Q No. 9 requested documents produced at the 13 July 4, 2004 deposition in the Addison versus AC&S j 14 case. Those were your reliance documents that were j 15 provided by Ford and others. Have you that those with 16 you today? j 17 A Yes. : 18 Q Okay. Have you brought with you any documents 19 relating to the hiring of ChemRisk by General Motors 20 and Ford? : 21 A There are no such documents. ; 22 Q There is no contract or agreement between Ford 23 and ChemRisk? ; 24 A That's correct. ! 25 Q And none between and General Motors and ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 ChemRisk? Page 15 2 A That's correct. 3 MR. LANKFORD: Just so it's clear, I'm not sure 4 what we said on the record and off the record. But with 5 respect to the objections raised to the notice, you 6 know, the position of the companies is that they will 7 comply with the final order of the court. 8 And with respect to the order of the court it 9 is at this point unclear at best what the position of 10 the court is with several of these document requests. 11 And we're not waiving any objections previously raised 12 with respect to those document requests. And I'm just, 13 you know, making the record. We can deal with it down 14 the road. But, you know, obviously a number of the 15 items have already been produced to you, and in addition 16 the order was just issued yesterday and various of the 17 documents requested. 18 You know, essentially the one-day notice 19 doesn't provide adequate time to determine the scope of 20 what is available and produce it. But again, we'll 21 allow Mr. Bell's office to deal with the issue with 22 respect to what will be produced pursuant to the court 23 order and meet and confer process with plaintiffs' 24 counsel. 25 MR. RUCKDESCHEL: Counsel, when you say "we" ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 who is "we"? Page 16 I 2 MR. LANKFORD: Ford and General Motors. 3 MR. RUCKDESCHEL: And to clarify the record, I 4 strenuously dispute your characterization that various 5 of these documents have already been produced. They 6 have not. 7 MR. LANKFORD:. Well, I'm saying we have a 8 roomful of documents here. 9 MR. RUCKDESCHEL: I understand. 10 MR. LANKFORD: And it's my understanding 11 certain documents have been provided to you in advance. 12 And let me just be clear. I'm not stating, you know, 13 I'm not arguing the issue with respect to what we are 14 and aren't turning over. I'm simply making the 15 statement because I don't want any claims being made 16 down the road that there is some type of waiver in that 17 regard. 18 MR. RUCKDESCHEL: I'm happy to stipulate that 19 your silence is not a waiver on any issue in this case. 20 MR. LANKFORD: Okay. 21 BY MR. RUCKDESCHEL: ' 22 Q No. 10, my understanding, Dr. Paustenbach, is 23 there are no documents? . 24 A Yes, sir. 25 Q For No. 11, have you brought documents ! ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 responsive to No. 11? Page 17 2 A I read that as similar to 10. There are no 3 such documents. 4 Q Okay. That makes it easy. No. 12, documents 5 pertaining to communications between you, Ford, GM and 6 Chrysler about to asbestos, brakes or asbestos disease. 7 Have you brought those documents? 8 MR. LANKFORD: Well, let me object to - 9 MR. RUCKDESCHEL: I'm just asking if he brought 10 them. . 11 MR. LANKFORD: Let me also raise the objection 12 with respect to privilege to the extent it calls for any 13 privileged items. And again, that objection is within 14 the -- we'll produce the items within the scope of the 15 court's order. 16 MR. RUCKDESCHEL: Counsel, it's going to take 17 us a long time to finish this deposition if you continue 18 to give these speeches during this process. I'm asking 19 the witness whether he brought these documents. It's a 20 simple question. Let him answer the question. Your 21 objections are properly preserved for the record on all 22 these matters. But we'll get through this a lot 23 quicker. 24 THE WITNESS: I don't have such documents with 25 me. ESQUIRE DEPOSITION SERVICES . (415)288-4280 1 BY MR. RUCKDESCHEL: Page 18 2 Q .Okay. And No. 13, communications between you 3 regarding -- 4 A I didn't bring such documents. 5 Q Okay. No. 14, communications, between you and 6 Ford, General Motors or Chrysler or their attorneys 7 regarding the brake articles? The articles that you 8 bring -- ! 9 A There were no communications so there's nothing I 10 to bring. . 11 Q Have you brought with you any documents that 12 pertain to meetings between you and Ford, General 13 Motors, Daimler Chrysler or their attorneys pertaining 14 to asbestos or brakes? 15 A I'm not aware of any documents regarding 16 meetings. I assume it means like minutes and things 17 like that. 18 Q Anything that relates to the meetings, 19 minutes, notes, anything like that. 20 A I'm not aware of any. 21 Q Same for No. 16. Have you brought documents ; ; 22 about meetings that pertain to the brake articles? 23 A There are none. 24 MR. RUCKDESCHEL: No. 17. Let's go off the 25 record for a minute. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 2 9:27. THE VIDEOGRAPHER: Off the record. Page 19 The time is a 3 (Discussion off the record.) I 4 THE VIDEOGRAPHER: Back on the record the time 5 is 9:28. 6 BY MR. RUCKDESCHEL: 7 Q No. 17, Dr. Paustenbach, requests you produce 8 documents that relate to any draft or outlines or 9 preliminary version orprecursors to the brake 10 articles. Have you brought anysuch documents? 11 A There are none. i 12 Q Are there any retainer agreements, this is No. 13 18, confidentiality agreements or other contractual 14 agreements between Ford, General Motors or Chrysler or 15 their attorneys relating to the brake articles you 16 brought? I i j s 17 A Not that I'm aware. If they existed they would 18 have been in the hands of Exponent. 19 Q. And for No. 19, any documents? 20 A I read that as the same as 18. Is there a 21 difference? i ri 22 Q It's simply between ChemRisk as opposed to 23 between you. 24 A The articles were written before, and published 25 I think before ChemRisk was operating. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 20 1 Q Okay. It was in existence but it was not 2 operating; is that correct? 3 A Well, ChemRisk is, the corporation has in one 4 form or another been intact for a lo.ng time. But let's 5 just say as it exists in the last two years there's not 6 an agreement with anyone regarding the brake articles 7 because they were already nearly published. 8 Q Was there such an agreement before? t* : 9 A As I had said, if there it would be at 10 Exponent. 11 Q Are you aware of any such agreements existing 12 at any point in time? 13 JUDGE KLINE: Hello. . 14 MR. RUCKDESCHEL: Hello. 15 JUDGE KLINE: Yes, this is Herb Kline. 16 MR. RUCKDESCHEL: Hi, Judge Kline. Jon 17 Ruckdeschel. I'm here with the witness and others. We 18 are on the record. We're working through the deposition 19 notice I'm just categorizing with Dr. Paustenbach what 20 documents he has and has not brought and what documents 21 do and do not exist. 22 JUDGE KLINE: Okay. I'll stay on the line 23 until you tell me you don't need me. 24 MR. RUCKDESCHEL: Thank you, Judge. 25 BY MR. RUCKDESCHEL: ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 21 1 Q Moving on to No. 20, Dr. Paustenbach, have you 2 what brought documents provided to you by Ford and 3 General Motors that pertain to asbestos, brakes or 4 occupational disease? 5 A I brought some documents, yes. 6 Q Are there documents that Ford, General Motors 7 or Chrysler or their attorneys have provided you that 8 relate to these subjects that you have not brought? 9 MR. LANKFORD: Let me object to it as -- well, 10 it's overbroad and I guess vague. Are you asking for 11 documents that he's been provided in specific cases such 12 as transcripts of testimony from plaintiffs? 13 MR. RUCKDESCHEL: Well, Counsel, I'm actually 14 asking for everything that has been provided to 15 Dr. Paustenbach that is in his possession that relates 16 to asbestos, brakes or occupational disease that was 17 provided by Ford, General Motors, Chrysler or their 18 attorneys. And that's exactly what the request says. 19 So I'm asking the doctor whether he's brought those with 20 him and he said he brought some. 21 MR. LANKFORD: That's right. 22 MR. RUCKDESCHEL: And I asked if there were 23 others that existed that he hadn't brought. And that's 24 when you interjected your objection. 25 BY MR. RUCKDESCHEL: ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 22 1 Q So let's go ahead and ask the doctor to answer 2 the question. 3 A There are numerous documents that I would not 4 have because they would be at Exponent, at my former 5 employer. I have quite a number of the depositions and 6 case materials from all the cases I've worked on since 7 I've been at ChemRisk the last two years. I did not 8 bring those. They probably would constitute, I don't 9 know, 40 or 50 boxes maybe of materials. Again, you're 10 welcome to them if the judge and attorneys believe you 11 would like to have them. 12 Q Let's take, and I'm going to define this so we 13 know what we're talking about, what I'll call the 14 case-specific materials, materials about Joe Mallia, 15 for example, in this case, depositions of witnesses 16 that are specific to this case. 17 A Right. 18 Q Medical records that you may have that are 19 specific to this case. And we'll cause those 20 case-specific materials. If we take those materials 21 for this case or for other cases, are there documents 22 that you've been provided, and we exclude those, are 23 there documents that have been provided to you by Ford, 24 General Motors, Chrysler or their attorneys that relate 25 to asbestos, brakes or occupational disease that are ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 not here today? Page 23 2 MR. LANKFORD: And let me object to the extent 3 it calls for privileged information that may have been 4 provided to him as a consultant. j 5 THE WITNESS: I'm sure there are other 6 materials, the majority of which would be with Exponent. | 7 And I understand you're working with counsel to resolve 8 how to answer this question. 1 3 9 BY HR. RUCKDESCHEL: 1 10 Q Are there other materials that you have or 11 that are in the possession of ChemRisk that you've been 12 provided that relate to asbestos, brakes or 13 occupational disease other than case-specific material 14 that aren't here today? And I'm asking if there are 15 some back at the office that didn't come with you? 16 MR. LANKFORD: Same objection. i 17 THE WITNESS: It would be very limited if there 18 were. 19 BY MR. RUCKDESCHEL: 20 Q What types of things might there be? 21 MR.' LANKFORD: Same objection. 22 THE WITNESS: I would -- 23 BY MR. RUCKDESCHEL: 24 Q I'm just asking the types of documents. I'm i 25 not asking any specific document. I'm just wondering ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 what types. Is there a category of documents that Page 24 2 didn't come with you, is there some cluster of 3 documents that relates to one thing or another that you 4 didn't bring? If so, then I want to explore what those 5 are. . 6 Again, Counsel, I understand you may want to 7 raise an objection with regard to privilege. That's 8 why I'm asking about the generic type of information 9 which is what we're- entitled to under the Florida rules 10 regarding claims of privilege. 11 A Okay. So I would put them in box categories. 12 One category would be reprints. Okay. So there are 13 certainly other reprints regarding issues related to 14 asbestos that I would have. And whether I got them 15 from Ford, General Motors or Chrysler is unclear. I 16 could have taken them from the library. So there's 17 that box. 18 Q Reprints of published material? 19 A That's right. 20 Q Okay. 21 A And then there is, of course, corporate 22 correspondence which has been disclosed many times in 23 prior cases. And I don't know if I brought them all 24 today but they may all be here, the classic ones. So I 25 have those. ESQUIRE DEPOSITION SERVICES (415) 288-4280 I Page 25 1 And then there are a few other reprints of 2 things like pieces, portions of service manuals or 3 technical bulletins that I may have received from them 4 or I may have received from some lawyer or another 5 consultant. And I didn't know if that fit into this 6 but I didn't think it was that relevant. It was 7 repetitive to what I did bring. 8 So those are the boxes of categories of 9 information not with me. I don't think it's 10 particularly interesting to you but that's what I don't 11 have with me. 12 Q I understand and I appreciate your description 13 of that. No. 21, Dr. Paustenbach, requests that you 14 bring any transcripts, videotapes or recordings of 15 prior testimony in cases that relate to asbestos and 16 brakes, clutches or other automobile parts. Have you 17 brought prior transcripts? 18 A I did not bring all my transcriptsfrom prior 19 cases. I had thought that this was resolved by the 20 attorneys, that this request, I didn't need to comply 21 with this. 22 Q Okay. . 23 A I mean I'm happy to. But I thought that had 24 been resolved. 25 Q Okay. We would request it. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 26 1 A It's an unusual request because I didn't know 2 you could make such a request. You're asking if I've | 3 been deposed 50 times and been to trial 10 times you j 4 want all those transcripts? 5 Q If you have them. If they are in your 6 possession that's what we're asking. 7 A Okay. Whatever the court and you guys have j j ) ] 8 agreed I'll do whatever makes sense. But I didn't j 9 bring them today. j 10 MR. RUCKDESCHEL: I understand. And Judge ! 11 Kline, I don't know whether this .is a time where we ; 12 might need your intervention, Counsel, will you provide 13 copies of the transcripts, videotapes and other prior ; 14 testimony in asbestos cases that are in 15 Dr. Paustenbach's possession? If so, then we don't need 1 16 Your Honor's intervention, but... 17 MR. LANKFORD: Well, I think that what 18 Dr. Paustenbach stated regarding it being an unusual ; 19 request and something that I think the inference 20 essentially is not proper, it is accurate. You're 21 asking the parties to provide to you the, all prior : 22 testimony of their expert in other matters. 23 It's burdensome, it's not something that the : 24 expert is relying on in this case for his opinions, and 25 therefore it's not something which the expert should ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 have to produce within this case. Page 27 2 MR. RUCKDESCHEL: I understand your explanation 3 and so let me just clarify for the record, are you 4 saying that you will not produce them voluntarily? 5 MR. LANKFORD: And it's equally available. 6 MR. RUCKDESCHEL: It's not because I don't have 7 the list of prior cases, nor do I have the name of the 8 reporter. But that's neither here nor there. My 9 question is will you produce them. If not I'm going to 10 ask Judge Kline to make a ruling on it. That's it. 11 MR. LANKFORD: We agreed to provide a list of 12 the cases which he provided testimony that he previously 13 described that he states he has created and produced in 14 the past. And counsel then can go and collect the 15 transcripts just as we do with your experts. You know, 16 that would be our position on it, that it's not a proper 17 request, essentially asking us to do your I guess 18 preparation within the case for you in terms of 19 investigation I guess, and in terms of research 20 regarding an expert's prior testimony. And given it's 21 equally available and given those factors, that it's 22 burdensome. 23 MR. RUCKDESCHEL: Judge? 24 JUDGE KLINE: Yes, sir. 25 MR. RUCKDESCHEL: We'd ask request 21(a) in the ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 28 1 deposition notice, request that Dr. Paustenbach produce 2 the documents in his possession. So these are documents 3 that already exist that are in one location and they 4 could be copied easily, all transcripts or videotapes of 5 his prior testimony. 6 Obviously we believe this is relevant, prior 7 inconsistent statements are directly relevant and proper 8 cross-examination in this case of an expert. The 9 request is tailored to the issues in this case. It 10 involves only cases involving brakes, clutches or other 11 automobile parts and asbestos. 12 The burden of my going around the country and 13 contacting court reporters to get copies of depositions 14 that exist in one place is obviously greater. 15 JUDGE KLINE: Yes, sir. 16 MR. RUCKDESCHEL: We ask that the court order 17 that be produced. 18 MR. LANKFORD: And just to be clear, I don't 19 think it's been established that the witness is in any 20 way relying upon those items and the scope of what he 21 should be obligated to provide in that regard are items 22 which he is relying upon for his opinions in this case. 23 JUDGE KLINE: Well, I'm sure the plaintiffs' 24 position is I'll never know until I see it. 25 MR. RUCKDESCHEL: That's absolutely right. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 29 1 JUDGE KLINE: Here's what I suggest as a j 2 reasonable compromise. Those documents that are in your j 3 possession, Mr. -- I'm sorry, Dr. -- - j 4 THE WITNESS: Paustenbach. 5 JUDGE KLINE: -- Paustenbach. Those documents J 6 which are in your possession you will make available to 1 7 the plaintiff to copy. Those items which are not in j 8 your possession you will make available a list for the ; 9 plaintiff, and he can go out and try to get them the : 10 same as you would try to get them. I 11 THE WITNESS: Judge, I think that's fine. Can 12 I ask you something else? 13 JUDGE KLINE: Sure. ; 14 THE WITNESS: Formally when this occurs and 15 there is a special master involved somebody says, well , 16 Judge, is it okay for the defense counsel to ask the 17 same of all the plaintiff experts. And frankly, sincei 18 having been through this several times with these 19 plaintiffs' experts they all refuse to do it. So with 20 that in mind I guess I would ask you to ask the same of 21 the plaintiffs' expert. ` 22 MR. LANKFORD: In fact, Your Honor, that was ; 23 going to be my next request that it be reciprocal. j 24 JUDGE KLINE: Why don't we make it reciprocal? : 25 The days of surprise in these cases are over. j ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 MR. RUCKDESCHEL: Certainly, Judge. Page 30 2 JUDGE KLINE: Therefore, you can do it the hard 3 way or the easy way. Why not do it the easy way and 4 make it reciprocal. What the plaintiffs have in their 5 possession that pertains prior testimony, make available 6 to the defendants for copy. What they don't have, make ! 7 a list available to the defendant and let them go out 8 and get it. I 9 MR. RUCKDESCHEL: Judge, I have no general 10 objection to that except for the fact that the 1 i J 11 plaintiffs' experts were all deposed months ago and j 12 there was no such request made or pushed by any of the 13 defendants. And so if Your Honor is saying at the 14 plaintiffs' expert deposition should they occur here 15 forward, that is a request that the court will honor, j i ; 16 then we'll certainly agree. 17 If Your Honor is saying that we now need to go 18 back and ask our experts to go and collect this 19 information when such a request wasn't made months ago ' 20 at their deposition, I'd ask that the court not reopen 21 that door. I mean they had their chance to make this 22 the request. ; 23 JUDGE KLINE: Yes, sir. j 24 MR. LANKFORD: Well, in terms of the timeliness 25 of the request, it was something there was a motion ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 pending on and that to the extent there was a ruling I Page 31 2 guess with respect to the motion, it was yesterday, and 3 obviously the items aren't here, so the witness, given 4 the short time period provided, and so the witness and 5 the parties, frankly or the defendants are being asked 6 to essentially after the fact of the deposition to 7 collect these documents. And we would ask that that be 8 reciprocal and with respect to plaintiff experts. 9 MR. RUCKDESCHEL: And again, Judge, we have no 10 objection to that if they were going to be permitted to 11 take another deposition of our experts and they wanted 12 to make that request I would have no problem complying 13 with it. 14 But if what Your Honor is saying is that they 15 now should serve a belated request for production of 16 materials when discovery closes next Friday I think is 17 not something - 18 JUDGE KLINE: We can do it one of two ways, 19 fellows. You can go ahead and agree to what I said or 20 do it the hard way and havethe defendant come in before 21 the judge and seek the same information that has been 22 given to you, Mr. Defendant. Let the judge decide 23 whether or not that is appropriate, or we can just say 24 let's just do it. So far as I'm concerned I think the 25 best way to say it is let's just do it. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 32 1 That's not, you know, this is not something j 2 that is pertinent at this deposition. I'm not even sure 3 I have the authority to say go ahead and do it. But if 4 I do have the authority I would require the plaintiffs' 5 experts to do the same thing the defendants' experts are 6 doing, make available to the other side those documents j 7 which are in his possession for copying and make a list 8 of those documents that are not in his possession. j I 9 And that's my ruling. Whether that's J 10 enforceable, I'm not sure. But, you know, I have a 11 special purpose here and that is to be available at the ; 12 deposition. But if I have authority to make such j 13 ruling, that's my ruling. 14 MR. LANKFORD: Thank you, Your Honor. 15 MR. RUCKDESCHEL: Thank you. Judge. ; 16 BY MR. RUCKDESCHEL: 17 Q ' Dr. Paustenbach, have you brought materials 18 responsive to 21(b), exhibits, PowerPoint presentations 19 or other visual aids that you have used in the past in 20 connection with your testimony in cases relating to 21 disease arising from exposure to asbestos and brakes, 22 clutches or other automobile parts? 23 MR. LANKFORD: We would raise the same 24 obj ection. 25 THE WITNESS: It's my understanding that this ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 33 1 was resolved between you and counsel and I did not bring 2 all those materials. 3 BY MR. RUCKDESCHEL: 4 Q Okay. You have presented PowerPoint 5 presentations and used other demonstrative aids in 6 testimony in asbestos cases before; is that correct? 7 A Yes, sir. 8 Q And you maintain those in some form or another 1 9 at your offices? 10 A I don't think I maintain them on a per case ; 11 basis. There would be some of those materials 12 available. They may not be, you know, for that case or 13 for a specific case because I build them for each case i 14 specifically. I'm not so sure I would have saved them 15 as intact unit for a case. 16 Q I understand and that's why I said in some 17 form or another. 18 A Yes. 19 Q And will you agree to produce those documents? 20 A As I said, I'll agree to produce whatever 21 lawyers, you all have agreed with the court to produce. 22 But my understanding was this is not something I needed 23 to produce. 24 Q What is the basis of that counsel? 25 A A conversation I had with counsel. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Which counsel? Page 34 2 A Mr. Bell and counsel for Ford and GM. 3 MR. RUCKDESCHEL: Your Honor, I'd ask the same 4 with Request 21(b). Dr. Paustenbach has used 5 demonstrative aids and PowerPoint presentations to 6 support his testimony in cases previously. I think 7 we're entitled to see those before we go to trial in 8 this case, and we'd ask that the court order them to be 9 produced. 10 MR. LANKFORD: And our response would simply be 11 the same, Your Honor, and if the court is inclined to 12 have the same order with respect to the transcripts, we 13 would ask that it simply be reciprocal, and that it be 14 limited to those that are readily available. We don't 15 want to here in the few weeks before trial have to have 16 the witness or expert spend his time going through all 17 his prior case files to find PowerPoint presentations, 18 etc. 19 JUDGE KLINE: Okay, the experts will all be 20 required to make a good faith effort to find those that 21 are readily available and produce them for copying or 22 whatever on the other side, as to both sides. 23 MR. LANKFORD: Thank you, Your Honor. 24 MR. RUCKDESCHEL: And, judge, may I clarify, is 25 this now an obligation that attaches without the need ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 35 1 for service of a request or a deposition notice by the 2 defense? 3 JUDGE KLINE: As far as I'm concerned. j 4 MR. RUCKDESCHEL: Okay, I understand, thank 5 you. 6 BY MR. RUCKDESCHEL: j 7 Q Dr. Paustenbach, with respect to No. 22, have 8 you brought with you responsive documents? 9 A I brought some as listed on my CV but I've not 10 brought everything. 11 Q Okay. What materials have you not brought? 12 A Well, it's a very broad request. As I read it, 13 you wanted fundamentally the PowerPoint presentations 14 and any handouts from any speech I've ever given 15 regarding asbestos and brakes, clutches or automobile 16 parts. That's the way I read it. ' 17 Q That's correct, and may I ask a clarifying 18 question here. Professionally you didn't start working 19 in the asbestos litigation until the middle of 2001; is 20 that correct? 21 A I think it's about right. 22 Q Okay. 23 A It may be a little before that. But it's been 24 in the recent years. 25 Q And in that time since the middle of 2001, and ; ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 now the middle of 2005, how many speeches, Page 36 2 presentations or other public or private addresses 3 about asbestos brakes, clutches or other automobile 4 parts have you given? 5 A I assume what is meant by this is if I was a 6 co-author, even if I didn't give the speech, that is if 7 it was at a professional conference and a colleague 8 gave it, you're asking for that as well. That's the 9 way I read this. 10 Q That's correct. 11 A And I would say that number is between probably 12 10 and 20. 13 Q Okay. And how many of those did you 14 personally present in whole or in part, the 15 presentation? 16 A I would say six or seven perhaps. 17 Q Can you tell me what those occasions were, 18 please? 19 A I think I can. I'd need my CV. 20 Q Okay, great. 21 A Would you like to do that now? 22 Q Yes, please. 23 A And I have my CV, please? 24 MR. RUCKDESCHEL: For the record we'll mark the 25 doctor's CV as Exhibit 3. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 37 1 (Plaintiffs' Exhibit 3 was marked for 2 identification by the court reporter.) 3 BY MR. RUCKDESCHEL: 4 Q Doctor, if you just refer me to the page or 5 pages where we can find that information. We don't 6 need to go through it on the record. 7 A Okay. It's on Page 52, 53, 54, 55, 56. Those 8 should be the pages that cover all my presentations in 9 the last three or four years. And then the ones that 10 are involving asbestos are in there. It does not tell 11 you which ones I personally gave but it does lists all 12 the times I've done it. 13 Q And you brought some of those materials but 14 not all? 15 A I believe so, yes. 16 Q Could we have the materials you did bring? 17 A I'll tell you specifically, I think these are 18 going to come at lunch time. 19 Q Okay. o 20 A Because I asked them to be printed out this 21 morning. 22 Q That's fine, thank you. 23 A Mm-hmm. That's under the assumption I'm to 24 produce them, but they will be available. 25 MR. RUCKDESCHEL: There hasn't been an ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 objection raised, so... Page 38 2 MR. LANKFORD: Well, I think there was an 3 objection in form of a motion which hasn't been ruled on 4 with respect to this issue and we just ask it be 5 reciprocal, the same- nature as the last two requests. 6 MR. RUCKDESCHEL: Your Honor, this is Jon 7 Ruckdeschel. You have not had the benefit of seeing the 8 motion that was filed. The motion contained absolutely 9 no argument regarding the deposition notice of 10 Dr. Paustenbach other than the broad statement that it 11 was overly broad. As you are aware, that type of 12 objection is insufficient under the Florida rules and 13 Florida law regarding the discovery requests that are 14 made. The motion did not address the substance of the 15 requests made from Dr. Paustenbach, and I'd ask that 16 Your Honor take a look at the motion in connection with 17 this because there are comments being made about there 18 is a motion for protective order being filed, and the 19 protective order did not contain argument containing 20 these subjects. 21 And so I think it's inappropriate to say a 22 motion has been filed and that a motion has addressed 23 the substance of these requests because the motion did 24 not do so. 25 MR. BELL: This is Henry Bell who filed the ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 motion and I would disagree with counsel's Page 39 2 characterization of the motion. 3 MR. LANKFORD: And certainly we can make the 4 objection here then if that is the plaintiffs' counsel's 5 position. A request asking for items which the expert 6 is not relying upon for his opinions in this case, there 7 is not a subpoena to the witness, the witness has no 8 'obligation to provide items which he's not relying upon 9 for his opinions in the case. 10 He has brought the items he's relying on. Many 11 boxes of items. It's overbroad and burdensome. If the 12 court is inclined to issue the same order-as it did for 13 the last two similar requests, we ask it would be 14 reciprocal. - 15 MR. RUCKDESCHEL: Your Honor, Mr. Lankford is 16 apparently unfamiliar with Florida law concerning the 17 scope of discovery. The scope of discovery regarding a 18 testifying expert is not limited to materials that the 19 expert is relying upon. 20 MR. LANKFORD: True, but his obligation to 21 bring with him items to his deposition are at best, you 22 know, those which he's relying upon. 23 JUDGE KLINE: What is the argument, fellows, 24 tell me. 25 MR. RUCKDESCHEL: I have no idea what the M'WMMS .'Mm t ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 40 1 argument is. Dr. Paustenbach has said he's willing to 2 produce them. Dr. Paustenbach has the materials, and 3 they are here, and so we've asked they be brought out. 4 And I have no idea what the substance of the objection 5 is. 6 JUDGE KLINE: What materials are we talking 7 about? 8 MR. RUCKDESCHEL: Presentations that 9 Dr. Paustenbach has either been author of or 10 participated in giving that relate to asbestos and 11 brakes and clutches. 12 MR. LANKFORD: It's essentially the same as 13 prior testimony which the court has ordered to be 14 reciprocal and we're stating that, the witness is 15 stating he'll provide it if there is no objection, just 16 as he did with the transcripts. And that is our 17 position, that if it's not something that he's obligated 18 to provide or we're obligated to provide, it wasn't 19 provided to him in the case, he's not relying upon it 20 for his opinions. But to the extent the court is going 21 to ordinary it be provided, as it did with the 22 transcripts, we simply ask it be reciprocal. 23 MR. RUCKDESCHEL: You Hortor, it's sitting in a 24 box right here. 25 JUDGE KLINE: I don't have a problem with that ' ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 making it reciprocal. I think you're entitled to see Page 41 2 what an expert witness has said on other occasions 3 pertaining to the very issues in the court at this time. 4 Both sides are entitled to that. As long as it's 5 restricted to the issues in this case. 6 MR. RUCKDESCHEL: It is. 7 JUDGE KLINE: Go ahead, produce it, and I will 8 require the plaintiff to do the same for the defendant, 9 to gather together whatever it is that you're asking 10 for, which I think is the presentations and -- let's 11 see. This is item 22? 12 MR. RUCKDESCHEL: That's correct, Your Honor. 13 There has been no request for those materials by the 14 defendants. And we're a week from the close of 15 discovery. There has been no prior request for those 16 items. 17 MR. LANKFORD: Well, and it's our position 18 there is no proper request by plaintiffs' counsel, but 19 to the extent the court is ordering it to be provided 20 for the reasons the court stated in terms of, you know, 21 both sides putting all the cards on the table with 22 respect to this issue we would ask that it be 23 reciprocal. 24 JUDGE KLINE: Well, I'm not even sure you can 25 ask a party to just bring with him stuff without showing ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 some cause. But let's go ahead and have him, the Page 42 2 witness at this point, make available those items, and I 3 think that if I have the authority I would require the 4 defendants' professional experts to do the same thing, 5 that is to produce for the plaintiff all documents that 6 pertain, etc., etc., under 22, containing asbestos, 7 brakes, clutches and other automobile parts. 8 MR. LANKFORD: You said defendants. I take it 9 you mean reciprocal pertaining to the plaintiffs' 10 experts? 11 JUDGE KLINE: Yes, I'm sorry.. 12 MR. LANKFORD: Thank you, Your Honor. 13 BY MR. RUCKDESCHEL: 14 Q Could we have these documents, please? 15 JUDGE KLINE: If in fact you contest this you 16 ought to give the other side sufficient time to get 17 before the judge to request the same thing. 18 MR. RUCKDESCHEL: Was that comment directed to 19 plaintiffs' counsel? 20 JUDGE KLINE: The comment was directed to 21 plaintiffs' counsel, right. 22 MR. RUCKDESCHEL: Okay. 23 JUDGE KLINE: I'm requiring you to do that 24 which I'm requiring the defendants' expert to do. 25 MR. RUCKDESCHEL: I understand.You're saying ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 if we want to look at them now we have to agree? Page 43 2 JUDGE KLINE: No, I didn't say that. 3 MR. RUCKDESCHEL: Okay. 4 JUDGE KLINE: I simply said that I'm requiring 5 you to do it. Now if in fact you take exception to 6 this, and I suggest to you that you should be required 7 to take exception to it within the next couple of days, 8 so that the defendant can get before the judge and say, 9 Judge, I would like these documents before the discovery 10 cut-off. 11 MR. RUCKDESCHEL: I appreciate that. Thank 12 you, Your, Honor for the clarification. 13 BY MR. RUCKDESCHEL: 14 Q Am I correct, Doctor, the documents aren't 15 here right now? 16 A Right. They could be her at lunchtime. 17 Q Okay, that would be great. We'll look at them 18 this afternoon. We have finished with the -- 19 MR. LANKFORD: And it's our position to the 20 extent you're making it reciprocal, you know, we'll 21 provide them. 22 MR. RUCKDESCHEL: We're not agreeing to that 23 and we'll bring it up with the judge as suggested by 24 Master Kline. 25 JUDGE KLINE: Well, I'm requiring it as a ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 44 1 special master. If you want to take exceptions you can 2 take exceptions. 3 MR. RUCKDESCHEL: I understand, You Honor, and 4 that's all I'm saying to counsel here, it 's requested we 5 stipulate that we agree. We're going to be filing our 6 exceptions. 7 MR. BELL: We will preserve the right to file 8 any exceptions as well. 9 (Discussion off the record.) 10 THE WITNESS: Counsel, are we going into a new 11 line of questioning? 12 MR. RUCKDESCHEL: Yes, would you like to take a 13 brake? 14 THE WITNESS: Sure. Just two or three minutes. 15 MR. RUCKDESCHEL: Sure. 16 (Brief recess.) 17 THE VIDEOGRAPHER: Back on the record. The 18 time is 10:07. 19 BY MR. RUCKDESCHEL: 20 Q Dr. Paustenbach, can you tell me when the last 21 time you gave testimony in deposition or court in an 22 asbestos case? 23 A Yes. 24 Q When was that? 25 A I think it was a week ago. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Is that the Rizzi case? Page 45 2 A Yes. 3 Q In New York? 4 A Yes. 5 Q What disease did Mr. Rizzi have? 6 A Mesothelioma. 7 Q And can you describe for me generically what 8 his occupational history was? 9 A His occupational history, you know, he had 10 some -- well, it's Matos and Rizzi. They are both in 11 the case. 12 Q Okay. Let's talk about Mr. Rizzi. 13 A As I recall, Rizzi had exposure in the steel 14 mill, and Mr. Matos was a young man who had exposure I 15 guess for about 18 months as a mechanic. Now it's 16 possible I've turned the two around. But one had it 17 from I think age 14 to 15 1/2, he was a, well, he 18 claimed to be a full-fledged mechanic and studied under 19 George, his one or one-and-a-half-year-old older 20 friend. 21 And the other gentleman's primary exposure was 22 to, in my view, when he worked in the steel factory but 23 he also had exposure as a mechanic as well. He was a 24 lifelong mechanic. 25 Q And what disease did Mr. Matos have? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A I think they both had mesothelioma. Page 46 2 Q Can you give me a three to four-minute summary 3 of your opinions with regard to Mr. Rizzi and his 4 exposures, causation of his disease, the types of 5 things you talked to the jury about on direct 6 examination? 7 MR. LANKFORD : Objection to the form. : 8 THE WITNESS: Can I hear the question again? i 9 JUDGE KLINE: This Herb Kline. Can I ask 10 everybody to move a little closer to the phone? I 11 . THE WITNESS: I'll speak up, Judge. j 12 MR. RUCKDESCHEL: I was leaning back. So I'll 13 lean forward. 14 JUDGE KLINE: Thank you. 15 BY MR. RUCKDESCHEL: 16 Q Dr. Paustenbach, I can reask the question. j 17 Can you give me a three- or four-minute summary of what 18 your opinions were with regard to Mr. Rizzi in that 19 case? 20 MR. LANKFORD : Same objection. 1 21 JUDGE KLINE: Do you want me to rule on that? ! 22 MR. LANKFORD : I'm sorry, Your Honor? 23 JUDGE KLINE: Do you want me to rule on the 24 obj ection? 25 BY MR. RUCKDESCHEL: ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q The doctor said he'd be happy to do it. Page 47 2 JUDGE KLINE: Okay. 3 THE WITNESS: On my direct, because of a number 4 of rulings by the judge, and I guess just the way the 5 case was put forward ultimately, I didn't have an 6 opportunity to talk much about either a person's 7 exposure scenario. That's not something that the judge 8 wanted me to opine about because it had been discussed 9 by another expert. So I can't say much because I didn't 10 have a chance to say very much. Dr. Rabinowitz 11 apparently covered that as far as the judge was 12 concerned. 13 Q Were there other areas of your testimony that 14 were limited due to other witnesses having covered 15 those subjects? . 16 A There may havebeen but she asked meto leave 17 when she was discussing what she wanted me to talk 18 about. That was something, I think it's called a side 19 bar or -- 20 Q I understand. 21 A Yeah. 22 Q So had you beenallowed you would have spoken 23 about Mr. Rizzi's exposure scenario. Did you discuss 24 epidemiology in your testimony in the Rizzi case? 25 MR. LANKFORD: Misstates testimony, objection ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 as to form and calls for speculation. Page 48 j 2 THE WITNESS: But I can answer? 3 JUDGE KLINE: You may respond. ? I4 THE WITNESS: You want me to respond, Judge 5 JUDGE KLINE: You may respond. 6 THE WITNESS: Okay. The judge felt that 7 Dr. Teta, another one of the defense experts had covered 8 epidemiology, and she felt that if I was to discuss it/ 9 it would be the same kind of testimony. And she in fact j* j 10 asked if I could defer to her, and I said that would be 11 fine. 12 BY MR. RUCKDESCHEL: 13 Q Okay. And so you didn't discuss the exposure 14 scenario and you didn't talk about epidemiology on your 15 direct? 16 A Very little. Only in what I would call a 17 state-of-the-art manner. I was able to mention when 18 the knowledge was gained, but as I said, I was not - - 19 she considered it duplicative testimony if I was to go 20 into much detail. 21 Q I understand. Was your testimony then 22 confined generally to state of the art issues? 23 MR. LANKFORD: Objection, form. 24 THE WITNESS: I think it would be wrong to say 25 it was confined because it makes it sound like the judge ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 didn't think I was able to talk about it. She just Page 49 2 didn't want to hear about it twice. 3 Q Right. I'm not suggesting that. 4 A Okay. 5 Q Was your testimony in the case simplyabout 6 state of the art in general? 7 A I would say that my testimony was about risk 8 assessment and state of the art. That would be the 9 primary focus. 10 Q Had you developed opinions in that case 11 regarding epidemiology and the exposure scenario? 12 A I had opinions about it. 13 Q What I'd like you to do, Dr.Paustenbach, is 14 for you to give me a brief outline of the opinions that 15 you had formed in the Rizzi case regarding Mr. Rizzi's 16 exposure. And by that I mean what you would, the 17 outline of your opinion on epidemiology on exposure 18 scenario, state of the art risk assessment. The five- 19 minute Reader's Digest version of the Dr. Paustenbach's 20 opinions in the Rizzi case. 21 MR. LANKFORD: Let me object as to form and 22 also not, it's really calling for speculation as to what 23 he would have testified for. Your Honor, as I 24 understand the question, he's asking him what his 25 opinions would have been in another case had he, you ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 know, provided them. And it's improper to ask this Page 50 2 witness about opinions that he may have formed in an 3 unrelated case this one in, and essentially ask him to 4 sit here and formulate opinions with respect to another 5 case that he's not being asked to offer testimony on in 6 this matter. 7 MR. RUCKDESCHEL: Judge, the witness just 8 testified -- 9 JUDGE KLINE: He can tell us if he formed any 10 opinions at that time, and if so what were they. I 11 think it's an appropriate question. 12 BY MR. RUCKDESCHEL: 13 Q Doctor, you did form those opinions in the 14 Rizzi case, correct? 15 A I had opinions about the exposure of the 16 plaintiffs, and I had opinions about epidemiology. ' 17 Q And you had opinionsabout state of the art 18 and risk assessment? 19 A Yes, sir. 20 Q Okay. Tell me briefly what thoseopinions 21 were in each of those subjects? 22 A Okay. As I said, one of the plaintiffs had 23 been a lifelong mechanic and had also been involved in 24 removing insulation from sheet metal in a steel mill. 25 And from what I can tell, even the plaintiffs' experts ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 thought that the exposure in the steel facility would Page 51 2 in and of itself have been sufficient to cause his 3 disease. So that deals with the exposure issue. 4 I've testified numerous times before that 5 exposures of brake mechanics to break wear debris is 6 not something that should cause and has been shown to 7 causeasbestos-related disease. And that would apply 8 to that plaintiff as well. 9 With respect to the exposure during the ages of 10 14 to 15 1/2, I concluded that if those exposures 11 occurred, of course they would not they would be not S 12 unlike any other mechanic's exposures except of much 13 more limited duration. Therefore, the dose would have 14 been vanishingly small if it occurred. 15 As you know there was testimony that he never 16 actually worked in that facility. I think that was 17 just added evidence in addition to other factors that 18 made me question and have a strong opinion that the 19 disease was not related to his work as a brake 20 mechanic. 21 In the area of risk assessment I basically went 22 over the difference between theoretical risk and 23 measured risk and the differences between environmental 24 risk criteria and occupational health risk criteria. 25 With respect to state of the art I discussed ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 what I discussed in my 2004 paper which is evolving Page 52 2 state of knowledge involving asbestos since 1900 to the 3 current day as well as break wear debris and brake dust 4 since 1900 to 2000. 5 With respect to epidemiology I said that, I 6 would have said what I said in my 2004 paper and in 7 other cases that the epidemiology studies 8 overwhelmingly indicate there is no increased risk for 9 auto mechanics, and that based on the epidemiology and 10 the toxicology and the exposure data, these, none of 11 this surprises me. 12 So I think the scientific data are very 13 consistent across the board with respect to the 14 relationship between work as a brake mechanic and the 15 lack of increase of asbestos-related disease. So 16 that's in a nutshell what I would have said had I had 17 an opportunity to do so. 18 Q Do your opinions regarding epidemiology change 19 from case to case in brake cases? 20 A It depends on what new information is 21 available. It wouldn't change if there is no new 22 information. In recent years someone has an opinion 23 about every three months that they share in the 24 literature and I try to incorporate that in my view. 25 Q Have your opinions concerning state of the art ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 changed in the last two years with regard to brakes? Page 53 2 A I wouldn't say they've changed with respect to 3 what I believe occurred between 1900 and 2000. I think 4 by definition state of the art means what is going on 5 up to the movement so I would say the information of 6 the last two years further convinces me that the 7 relationship, or lack of a relationship actually 8 between exposure as a mechanic and mesothelioma or lung 9 cancer, asbestosis, is just not there. 10 Q Am I correct that is primarily due to the dose 11 of asbestos that mechanics are exposed to? 12 A I wouldn't limit it to that. I think that 13 there are five or six factors that I've discussed 14 before. Langer has his own views about the five or six 15 that are very similar to mine. I'd say virtually 16 identical except he has stronger views that the break 17 wear debris, even the asbestos and break wear debris is 18 different. And he thinks it's not causal due to the 19 chemical change in the asbestos and the chrysotile. 20 I don't have a learned opinion about that but 21 that would be the only difference among the five 22 factors, that is, and I can go over those, it's 23 basically duration of exposure, concentration, the 24 fiber length of the fibers that are available, the fact 25 it's chrysotile, and, you know, of course, the ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 54 j 1 conversion to fosterite or olivine or whatever chemical 2 name you want to give to break wear debris. And I'd | 3 say those would be the primary factors. 4 Q Okay. Is it fair to say that duration, j 5 concentration and the conversion to fosterite or 6 olivine all relate to the issue of dose? 7 A Sure. 8 Q The length of the exposure is a factor that ' s 9 involved in calculating the dose? 10 A Sure. 11 Q And the concentration of dust in the air, and j is j } I 1 12 we're talking about asbestos dust in the air, is how we 13 calculate the dose. 14 A Specifically OSHA fibers and chrysotile. 15 Q Okay. And the same with the conversion of 16 some or the vast majority of chrysotile asbestos in the | 17 wear debris to some other mineralogical form? 18 A Correct. 19 Q Now I think that you testified in the past 20 that some small percentage of chrysotile fibers in wear 21 debris, I'm sorry, of the materials in wear debris 22 remain chrysotile fibers? 23 A I've said that you can measure airborne 24 chrysotile fibers and you can find them in the brake 25 wear debris. And that's what I said, that's the ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 difference between Langer and I. He happens to think, Page 55 j ! 2 and I have no reason to question him, that they are not ' 3 even asbestos fibers any longer. 4 Q And you're referring to Dr. Langer's paper 5 of -- ; : ) % 1 6 A 2003 I think. 7 Q Regarding the, in essence the subject relates ' 8 to what temperature does the chemical composition of 9 the chrysotile fiber take on some different property? i ; 10 A Well, it's not that simple but he's written 11 about it several times. I would say his last paper is j ; 12 where he galvanizes his views about it. And I think 13 it's 2003 or 2004. 14 Q Do you find that paper to be an authoritative 15 piece of the medical scientific literature? ; , ! \ ;r 16 A I would think so. I don't have any reason to 17 think it would not be. ! 18 Q Do you rely on it? 19 A I do rely on it. 20 Q Okay. Can you give me in summary similar to 21 the summary that you just gave for your opinions in the 5 22 Rizzi case regarding your opinions in this case, : 23 Dr. Paustenbach? 24 A Well, I think the summary would be very 25 similar. I think the state of the art discussion would ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 56 1 be the same. If you asked me about risk assessment the 2 risk assessment views would be the same. In this case, 3 of course, you have exposure to brake wear debris from 4 heavy equipment as well as autos. So that's a little 5 difference from Matos and Rizzi. It doesn't have any 6 significant impact on my views but it's a factual 7 difference. And, of course, the epidemiology hasn't 8 changed since last week so I would say that would be 9 the same as well. 10 Q Okay. I'd like to work through those each in 11 turn and again just get through the Reader's Digest 12 version of your opinions. So could you tell me, 13 Dr. Paustenbach, in summary fashion your opinions 14 regarding state of the art in this case? 15 A I guess I don't understand the question. The 16 state of the art in this case would be a one-hour 17 dialogue, and I would refer you to my 2004 paper. If 18 you want more than that, then I guess it's up to the 19 lawyers and the judge if you want me to give you a long 20 talk about state of the art. 21 Q I'm not -- if you can't give me a condensed 22 version of it, then that's okay. I'm just asking 23 whether you can. 24 A Sure, of course I can. 25 Q Can you give me a two-minute state of the art, ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 57 1 this is the kind of thing I talk about regarding state 2 of the art? 3 A I'd be happy to. 4 Q Okay. Would you please do so? 5 A Sure. With respect to asbestos and state of 6 the art I would say that asbestosis was thought to be 7 occurring, they didn't know it was asbestosis, but some j 8 lung ailment in the early 1900s right at the turn of ; 9 the century. It took until 1930 for them to know that 10 asbestos did cause a unique disease called asbestosis. I 11 That's made very clear in Meriweather and Price. 12 In 1955 the suspicions that sufficient doses of : 13 asbestos in one form or another, if the dose is 14 sufficient, can increase the risk of lung cancer and , 15 that's Doll's paper. : 16 In 1960 Wagner is fairly certain that the 17 amphiboles can cause an increased risk of mesothelioma. : 18 In 1964 Selikoff shows that things that were 19 thought to be not of significant risk with respect to 20 end product insulation, he finds there's an elevated ' 21 risk if the dose and duration are sufficient, certainly 22 for the amphiboles. 23 And then there becomes a regulatory flurry of ! 24 activity that begins around 1970 and continues through ; 25 1994. And that's both in the United States and in > ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 other countries. Page 58 2 With respect to break wear debris, Thompson 3 suggests in 1963 that I wonder if it might be a public 4 health hazard to have break wear debris in the ambient' 5 air. That is looked at in '68 by Lynch. He actually 6 starts looking at it in '66 and published his paper { i| 7 in '68. 8 Because of the size of the particles in break j i 9 wear debris and because of the conversion to fosterite, 10 he concludes it's not a significant public health j 11 hazard and it appears that the Public Health Service 12 agrees with him. 13 For various reasons EPA and Ford looked at that 14 issue some more over the' next couple years and conclude 15 it probably isn't a public health hazard. i 16 So at that point the door is kind of closed on 17 whether or not break wear debris is something that 18 people find to be an ambient air hazard. 19 With respect to brake mechanics, Hickish and 20 Knight look in 1968 at some brake and auto mechanics in 21 England. They say we don't think that exposures are as 22 high as we thought they'd be. In their view on a 23 time-weighted average basis they do not consider it a 24 significant health hazard, and they were making that 25 conclusion based primarily on comparison to the British i i! ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 guideline for occupational exposure. Page 59 2 In 1975 Selikoff says my staff has been looking 3 at brake mechanics here in New York City, and they 4 think the exposures are higher than what they expected. 5 And they wonder whether this is something that is worth 6 sharing with the occupational health community. That 7 information is shared. 8 Over the next five to ten years various people 9 study the workplace and take measurements and generally 10 find that the exposures against the current 11 occupational, that is the contemporaneous occupational 12 exposure limits seem to be not excessive. Everybody 13 recognizes that if you grind there are peak exposures, 14 and if you blow out there are peak exposures, but on a 15 time-weighted average basis it appears that most, 16 virtually all workers in that business are below the 17 time-weighted average cumulative dose that people would 18 be concerned with. 19 That gets us up to I guess the modern era where 20 litigation raises the question again as to whether or 21 not brake dust is causing an increased risk of any of 22 the three asbestos-related diseases. In the 23 intervening years there is quite a bit of epidemiology 24 work between 1975 and 2005. 25 So that I think is a summary of the issue you ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 asked me about. Page 60 2 Q Thank you, Doctor. 3 THE WITNESS: Can you hear all right. Judge? 4 JUDGE KLINE: Yes, sir. 5 THE WITNESS: Okay. 6 BY MR. RUCKDESCHEL: , 7 Q Regarding exposure are the opinions you have 8 related to exposure and exposure levels expressed in 9 your 2003 paper? 10 MR. LANKFORD: Objection to form. 11 THE WITNESS: Well, in a general -- I'm sorry. 12 MR. LANKFORD: And specifically are you asking 13 opinions overall, in this case? 14 BY MR. RUCKDESCHEL: 15 Q I'm asking him about his opinions regarding 16 exposure of brake mechanics to asbestos dust and 17 whether those opinions are set forth in his 2003 paper, 18 just as I asked it. 19 A I don't think the question is answerable as 1 20 presented because it's so broad. If you're asking me 21 can I apply that data to every single person that files 22 a claim and for which I give an opinion, the answer is 23 no. 24 If you want to know do I think that represents i 25 the vast majority of persons normally employed as brake j > ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 mechanics or as auto mechanics I would say yes, the Page 61 2 data there I believe represents the vast majority of 3 people. 4 Q What you present in your 2003 paper is a 5 collection of data from various sources that you then 6 analyze and come to a conclusion regarding what the 7 average exposures were of brake mechanics over a period 8 of time? 9 A Right. 10 Q And when you say the vast majority, this 11 information is applicable to the vast majority of 12 individuals, what are you talking about in terms of 13 magnitude, that majority is, 60 percent, 80 percent, 14 95 percent? 15 A Well, based on what I'velearned the last four 16 years, I would think it would apply to virtually 17 everyone. Now having said that, I have read testimony 18 of persons that were outside the norm. And I've been 19 asked hypotheticals about people that to the best of my 20 knowledge didn't exist and those behaviors didn't 21 exist. 22 So I'm hesitant to say that that paper covers 23 every imaginable person. And I know that Dr. Lemen has 24 put into question how broadly one can apply that 25 analysis as presented in the 2003 paper. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 62 j 1 But based on what I know, it should apply to I 2 virtually everyone. That is to say, any reasonable 3 number of brake changes in a career. 4 Q Are you familiar with Mr. Mallia's testimony 5 regarding the number and frequency of brake repair 6 work -7 A Yes. . 8 Q -- that he performed during his lifetime? j j 1 1 i i i i 9 A Yes, I'm familiar with that. 10 Q Do you question the veracity of that 1 11 testimony? 12 A Well, it's inconsistent so I have to question J 13 the veracity of it. 14 Q Okay. ! 15 A At some point he and his brother say thousands 16 and it can't be thousands when you work out the math. 17 And then later he says, you know, it's so many times 18 per week or per day. You know, ultimately I'try to 19 infer that, what I could from the testimony, and it 20 looked like if he did what he said he did, I would say 21 he would fit in with the kind of people that were 22 described in my 2003 paper. 23 Q The data that goes into the 2003' paper upon 24 which the average exposure that you calculate, were the 25 individuals that were performing the work that form the ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 63 1 basis of the data doing the same operations with brake 2 materials that Mr. Mallia describes doing in this 3 deposition? ' 4 A . Well, you don't always know. Mallia does not 5 discuss doing much of what some people believe is the 6 primary source of exposure, which is arcing or 7 grinding. That doesn't seem to be a predominant part 8 of what he does. 9 He mentions sanding frequently which is 10 frankly, pretty unusual. It's not something you read 11 about people doing nor should they have had to do when 12 doing new installations. So that's my view on that. 13 If I was to guess based on what he said, his exposures 14 probably would have been a little bit lower than the 15 norm. Of course it's happening much later and you 16 would expect exposures only to be going down in the era 17 when he's doing the brake work. 18 Q Let's go through, Doctor, the types of things 19 an individual working with brakes can do that can cause 20 exposure to asbestos. Is there a potential for 21 exposure to asbestos in opening the box? 22 A Well, we have to put a time frame maybe on your 23 questions. Do you want to talk about it for his 24 lifetime or in general? 25 Q I'd like to talk about it for the time period ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 between 1978 and 1985. Page 64 2 A Okay. 3 MR. LANKFORD: Objection to form. 4 THE WITNESS: Okay. 1978 to 1985. 5 BY MR. RUCKDESCHEL: 6 Q Is there a potential for exposure to airborne 7 asbestos in opening a box of brake pads? 8 A If they are asbestos-containing brake pads 9 there is a possibility for exposure. I don't know if 10 it's quantifiable but there is a potentialfor 11 exposure. 12 Q Are you aware of anybody attempting to 13 quantify the potential exposure of opening a box of 14 asbestos-containing brake pads? 15 MR. LANKFORD: Let me object to the question in 16 terms of form and with respect to privilege. And 17 specifically with respect to form, you know, what you 18 mean by quantity and, you know, asbestos, either talk 19 about the different types or the issue with respect to 20 what is asbestos, and with respect to privilege, you 21 know, and any work he may have done in a consulting 22 fashion in that regard. To the extent he's not relying 23 up on it again -- 24 JUDGE KLINE: Well, can we have the question 25 again? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 65 1 MR. RUCKDESCHEL: The question, Your Honor, is 2 whether Dr. Paustenbach is aware of anybody attempting 3 to quantify the amount of asbestos dust released when 4 you open a box of asbestos containing brakes. 5 JUDGE KLINE: Not him but somebody else? 6 MR. RUCKDESCHEL: It could be him. I'm just 7 saying is he aware of anybody attempting to do that. 8 I'm not asking for the results. Just if he knows of | j 9 people trying to do it. 10 JUDGE KLINE: You can respond to that question. 11 THE WITNESS: Okay. I'm aware of Longo's 12 report on that issue. 13 BY MR. RUCKDESCHEL: 14 Q Are you aware of anybody else attempting to 15 quantify the amount of asbestos dust that is released 16 from opening a box of asbestos-containing brakes? i 17 A I've done limited preliminary work on that 18 issue. 19 Q When? 20 MR. LANKFORD: Let me object to the extent it 21 calls for privileged information to the extent that the 22 witness is discussing something that he did as a 23 consultant which he is not relying upon. And I don't 24 know if that's the case or not but I'll let the witness 25 determine whether it fits into that category. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 66 1 MR. RUCKDESCHEL: The question. Judge, is when. 2 That's all I'm asking. 3 JUDGE KLINE: All right,you can answer that 4 question. 5 THE WITNESS: In the last two years. 6 BY MR..RUCKDESCHEL: 7 Q Were dust measurements taken? 8 MR. LANKFORD: Same objections. To the extent 9 he did work that he's not relying upon for, and he did 10 it in a consulting privilege -- a consulting capacity is 11 protected by work product privilege. And with respect 12 to exactly what he did and how he did it, even I would 13 say the time that he did it and whether he did it, it's 14 protected by the work product consulting privilege. 15 The parties have the right to consult with 16 experts and to have them perform work without having to 17 disclose the fact that the consultants, the consultation 18 even took place or the work took place to the extent 19 that it's something that they are not relying upon and 20 it was done under the work product privilege for 21 consultation purposes as opposed to opinions within a 22 case. . 23 MR. RUCKDESCHEL: Okay. And, Your Honor, this 24 is Jonathan Ruckdeschel, so you know, and I will 25 respond. Dr. Paustenbach, the difficulty here, from the ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 plaintiffs' perspective is that Dr. Paustenbach has Page 67 2 testified that he's going to testify in this case and 3 he's formulated opinions in this case regarding 4 exposures to asbestos and what the levels of exposure to 5 asbestos were of brake mechanics when performing this 6 type of work. Dr. Paustenbach has acknowledged that 7 there is a potential for exposure to asbestos when 8 opening a box of brakes. 9 The issue of whether Dr. Paustenbach is relying 10 upon the results of his study is not determinative of 11 whether we are entitled to inquire into that subject, 12 given that he is a testifying expert. And that's 13 because the basis of Dr. Paustenbach's opinions in this 14 case are how open for discovery. And the basis includes 15 not only, Judge, things that Dr. Paustenbach chooses to 16 rely upon, but also things that Dr. Paustenbach knows 17 that he then chooses not to rely upon. 18 And here's why I think it's important. I'm 19 entitled to know, and Mr. Mallia is entitled to know 20 whether Dr. Paustenbach's experiments that measured or 21 attempted to measure how much dust is released when you 22 handle, when you open a box of brakes, if those numbers 23 came out high, and he chooses not to rely upon them, 24 that's obviously critically relevant to the veracity of 25 his opinions in this case. If he's got a high number ESQUIRE DEPOSITION SERVICES (415) 288-4280 .1 there and he says, well, I'm not going to rely on that Page 68 2 for whatever reason. He can explain why he does or 3 doesn't rely on it. 4. But that's information Dr. Paustenbach has, and 5 he's got it in his brain, and he's testifying about 6 things in his mind. And he can't erect a Chinese wall 7 in his mind and say, well, I got information, factual 8 information about this subject directly related to the 9 case, but I'm going to put it over here behind the wall 10 and I'm only going to testify about these other things. 11 And I believe the reason he would do so is 12 because the numbers came out high. And so I think it's 13 a proper subject of discovery and I think that any work 14 product objection has been waived when they designated 15 Dr. Paustenbach as an expert to talk about the subject 16 of the exposure level. 17 , MR. LANKFORD: Well, Your Honor, I disagree 18 with that for many reasons. And before I go into a long 19 I guess a list of those, perhaps it makes sense to take 20 a few-minute break and for me to talk to Mr. Paustenbach 21 or Dr. Paustenbach, and see what he's referring to, and 22 if it's something that my clients, Ford and GM, have a 23 work product.privilege with respect to that, you know, 24 we wish to assert it at this time. 25 JUDGE KLINE: Why don't we take a two-minute ESQUIRE DEPOSITION SERVICES , (415) 288-4280 1 recess. Okay? Page 69 2 MR. RUCKDESCHEL: Thank you, judge. 3 THE VIDEOGRAPHER: Off the record. The time is 4 10:43. 5 (Brief recess.) 6 THE VIDEOGRAPHER: Back on the record. The 7 time the 10:51. 8 MR. LANKFORD: Could we have the last question 9 and answer read back, please? 10 (Record read.) 11 MR. LANKFORD: I'm sorry, if you could one back 12 from that. 13 (Record read.) 14 BY MR. RUCKDESCHEL: 15 Q Okay, the pending question, Doctor, was, were 16 dust measurements taken? 17 A Well, let me say that I maybe answered the 18 question in a global way. I personally didn't conduct 19 a study but it was conducted within my firm. I was not 20 personally involved in doing that work and haven't 21 analyzed the data. But the answer to your question, 22 measurements were taken. I think to the best of my, at 23 this point I think it's considered to the best of 24 knowledge privileged information beyond that. 25 MR. LANKFORD: And we're asserting the ESQUIRE DEPOSITION SERVICES (415) 288-4280 i Page 70 i 1 privilege, the work product privilege. The witness has 2 stated that it was preliminary work done, he's not 3 relying upon it. It was done in a consulting fashion, 1 4 and we are asserting the work product privilege. 5 JUDGE KLINE: Yes, sir. 6 MR. RUCKDESCHEL: I believe, Judge, that I can i 7 lay a foundation in the next three questions that will 8 answer this question for us. | I 9 JUDGE KLINE: All right. 10 BY MR. RUCKDESCHEL: 1 11 Q Dr. Paustenbach, you are the 100 percent owner f 12 of ChemRisk, correct? 13 A Yes. 14 Q You are the president of ChemRisk? 15 A Correct. | 16 Q And the people that performed this work are 17 your employees? 18 A Correct. 19 Q And they did so as part of ChemRisk's work for i 20 Ford and General Motors? 21 A I would think that that's true. 22 Q And you have testified in the past that 23 100 percent of your work for ChemRisk and General 24 Motors is related to litigation? 25 A Well, I don't know if I've said that. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 71 1 Q Okay. I can get the transcript out if that's 2 necessary. 3 MR. LANKFORD: I would argue it's not ! 4 necessary. It doesn't change the analysis. You can 5 have a consulting expert within the litigation. 6 BY MR. RUCKDESCHEL: 7 Q Doctor, are you aware of the what the results 8 of the dust testing are in a quantifiable sense? j 9 MR. LANKFORD: And objection, he stated that's j 10 preliminary, there weren't any I guess final results. j 11 BY MR. RUCKDESCHEL: 12 Q Doctor, are you aware of the preliminary 13 results of the dust tests? 1 14 A I don't have quantitative information from ; 15 those tests. ; 16 Q You've never been provided with that 17 information? ; ; 18 A I've never analyzed that information. j 19 Q Well, have you been provided with that 20 information? , 21 A I've seen results. I, of course, well, they'd | 22 have to be averaged and looked at to make sense of. I j 23 haven' t done that. j 24 Q What was the range of the results? 25 MR. LANKFORD: I'm asserting the privilege at ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 this point. It was done as a consultant. It is not Page 72 2 information that he's relying upon here. Moreover, it's 3 not even information that has been part, it's not even 4 work that has been completed. It's preliminary in 5 nature, and we're asserting the work product privilege. 6 MR. RUCKDESCHEL: Your Honor, the relevant 7 portion of the information is the number. And he's 8 aware of what the range of numbers is I believe, and 9 we'd ask that the court making a ruling. 10 MR..BELL: Your Honor, Henry Bell. 11 JUDGE KLINE: Yes, sir. 12 MR. BELL: If I can add in, we think this 13 information is protected under Rule 1.280. It's in fact 14 work product done under the direction of counsel. 15 We rely on Procter & Gamble Company v. Swiley 16 462 Southern 2nd 1188; and the Leonard Northrop decision 17 of the Supreme Court of 2004, 865, Southern 2nd, 1267, 18 Your Honor. 19 Florida law suggests, I think the plaintiffs' 20 argument here is because Mr. Paustenbach is a testifying 21 expert that somehow the product, the work product 22 privilege is completely waived. 23 That's not true. If he's not relying upon it, 24 it's not waived, and therefore it's protected. The 25 Proctor & Gamble case. Your Honor, by the way, deals ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 73 1 specifically with studies done by defendants in products 2 liability litigation. 3 MR. LANKFORD: And I think it's also important 4 to note, Your Honor, that it's preliminary, it hasn't 5 been completed and therefore is not of the nature of 6 type of studies that, you know, one would reasonably 7 rely upon for such opinion. 8 JUDGE KLINE: Are you saying that the opinions 9 that the work has no credibility at this point, that 10 it's not worthy of consideration? : 1 11 MR. LANKFORD: Well, I'm saying he's not 12 relying upon it, he said it's preliminary in nature and 13 essentially, as I understand the record at this point. 14 the assertion is that somehow it's relevant that, it 15 would be relevant to an opinion that or what would be 16 relevant to an opinion is an incomplete study in which 17 conclusions have not been reached. And we argue that 18 that would not be relevant to an opinion, not be 19 admissible, No. 1, as foundation for such an opinion. 20 But more importantly, it's protected by the work product 21 privilege we are asserting. 22 MR. BELL: Furthermore, Your Honor, plaintiffs 23 have experts in this field that have done their own 24 studies that cannot show a need for this information and 25 pierce the work product doctrine. ESQUIRE DEPOSITION SERVICES (415) 288-4280 ! Page 74 1 . MR. RUCKDESCHEL: Your Honor, can we have one 2 attorney handle this, Please? 3 JUDGE KLINE: You don't want them to 4 double-team you. 5 MR. RUCKDESCHEL: That's right. It's enough to 6 respond to one. ; 7 JUDGE KLINE: Well, folks, it appearsprobable ' 8 that when you hire somebody under these rules, do some 9 investigation or render opinions or so forth, and you 1 1 j j 10 don't use them as a testifying witness, that that is 11 nondiscoverable. That's the .nondiscoverable part. j $3 12 But if you are using them as a testifying | 13 witness, I guess you could argue, yeah, but he didn't ! 14 rely upon that in coming to his opinion. : 15 MR. BELL: Your Honor, Northrop talks about j 16 when a litigant decides to rely on certain materials or 17 information or prior transcripts, testimony, etc., and 18 the privilege is waived when you're going to use it in ; j 19 court. But here, given that these studies haven't 20 been -- ' s 1 21 JUDGE KLINE: There not using in court. | 22 MR. BELL: Exactly. And they are not in a j 23 state to be using. And again, these are things being * 24 done by someone who is a scholar who doesn't share these | 25 kinds of things before they are finished. : ESQUIRE DEPOSITION SERVICES (415) 288-4280 1. JUDGE KLINE: Well -- Page 75 2 MR. RUCKDESCHEL: Your Honor, again, the 3 problem with that is it has no boundaries. It says that ; 4 you can consider everything, and that I only have to j 5 tell you things that I like. And that's not the way the : 6 law can be. It can't be the way the law is structured. \ 7 And, you know, unfortunately I don't have those cases in ; 8 front of me, I can't respond to them substantively. But ; 9 I would request that the judge, that Your Honor order j 10 this information produced. The trial judge can j 11 determine whether it's admissible or not. That's a 12 different issue. 13 MR. LANKFORD: And the work was not done in 14 this case, Your Honor. That's an important distinction. 15 JUDGE KLINE: The work was not done in this , I ; 16 case. 17 MR. LANKFORD: Correct. 18 JUDGE KLINE: I'm inclined to believe a 19 testifying expert can be asked questions about does he ; 20 know of other studies, has he engaged in other studies, ; 21 would these other studies if he were aware of them, I 22 change his opinion. So I'm inclined to believe probably 23 he should be required to answer. But I don't want to 24 put you in the position of, you know, once the cat is 25 out of the bag. So why don't we just, why don't we just ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 let the judge decide this. Page 76 2 MR. LANKFORD: Thank you, Your Honor. 3 MR. RUCKDESCHEL: Okay, we'll move on. 4 JUDGE KLINE: Since you all have, the plaintiff 5 has other studies that show what they believe these 6 studies should show, then you have something else to 7 use. 8 MR. RUCKDESCHEL: Well, that's true, Your 9 Honor, except Dr. Longo's studies are attacked heavily 10 by the defense in every case. And so if 11 Dr. Paustenbach's study or ChemRisk's study has found 12 numbers that are consistent with Dr. Longo's study it's 13 going to be an enormously important issue in this 14 litigation and this case. 15 JUDGE KLINE: You're probably right. I would 16 be inclined to make it disclose. But at this point, as 17 I say, once the cat is out of the bag, it's out of the 18 bag. So let's just move on and you can bring this up 19 before the judge and see whether or not he feels that 20 that this should be disclosed. 21 MR. RUCKDESCHEL: Thank you, judge. 22 BY MR. RUCKDESCHEL: 23 Q Dr. Paustenbach, I was asking you about 24 potential avenues for exposure during the performance 25 of brake repair, and we started with opening the box. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 And I want to work through the process. Page 77 2 So after opening the box where there is a 3 potential for exposure. Is there a potential for 4 exposure to airborne asbestos in simply handling the 5 brake pad? 6 A You certainly could have some exposure that may 7 or may not be measurable. But by definition there 8 would be airborne particles. 9 Q Okay. And is there a potential for exposure 10 to airborne asbestos dust if one files the edges of the 11 brake pad to bevel the edge? 12 A ' Assuming there is no local exhaust ventilation 13 and the person is not wearing a respirator there would 14 be potential for exposure. 15 Q And in this case Mr. Mallia testified that he 16 filed the edges? 17 A That's what he said. 18 Q And he testified he did not wear a respirator? 19 A That's what he said. 20 Q And there was no testimony regarding local 21 exhaust? 22 A I didn't see any. 23 Q Is there a potential for exposure to airborne 24 asbestos in taking the wheel off of, for example, a 25 dump truck? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 78 1 A Now these questions are all between 1978 and 2 1985 . 3 Q That's correct, and I'd like you to assume so 4 that we can continue, that all the brake pads that 5 we're talking about have asbestos in them. For 6 example, would loosening the lug nuts of the wheel and 7 taking the wheel off have a potential for exposure to 8 airborne asbestos? 9 MR. LANKFORD: Incomplete hypothetical. 1 10 THE WITNESS: I'm not sure about that. I' m not 11 sure you'd be able to measure anything. 12 BY MR. RUCKDESCHEL: 13 Q Have you seen documents or studies that have 14 discussed that as a potential avenue for exposure? 15 A I'm not sure that I remember anybody 16 specifically talking about that task. You could infer 17 or assume there was some potential exposure but it' s 18 not something that we focused on. 19 Q Okay. 20 A "We" meaning the scientific community. 21 Q I understand. And then if we move forward. 22 the drum is removed and cleaned out; is that correct? 23 A If it's a drum brake, yes, sir. 24 Q And I want to confine our discussion here to 25 drum brakes today. And the drum is then cleaned? ESQUIRE DEPOSITION SERVICES (415) 288-4280 ; : ' , 1 A It usually is. Page 79 I 2 Q And if it is cleaned with compressed air like j 3 Mr. Mallia testified he cleaned the drum, there is a j 4 potential for exposure to airborne asbestos fibers? 5 MR. LANKFORD: Overbroad. 6 THE WITNESS: If there is no protective 1 ! J 7 equipment or engineering controls therewould be 8 certainly potential for exposure. 9 BY ,,R. RUCKOESCHEL: ] iI ; j 10 Q And there was no protective equipment or other I 11 protective measures used by Mr. Mallia; is that 12 correct? ; 13 A Not that I read. 14 Q And after the brake is reassembled Mr. Mallia j 15 testify regarding cleaning, cleaning the work area, 16 sweeping or otherwise? j 17 A Now you're switching between generalities and ! 18 Mr. Mallia in these questions. Which one do youwant I 19 to answer? , 20 Q Let's do it generally then. j 21 A Then you want to say mechanics in general, do 22 they ever clean the area in which theywork? 23 Q Let's use the hypothetical. If a mechanic 24 chooses to clean the area that he works in after filing j | ? ! j 25 a brake pad and performing a blow-out with compressed j ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 80 1 air of a drum brake and then reinstalling the new brake 2 pads is there a potential for exposure during the 3 clean-up process? . 4 A Sure, there is a potential for exposure. 5 Q And a mechanic with facial hair has a 6 potential to have asbestos land on and become, attached 7 to I guess is the wrong word, but to get asbestos in 8 their facial hair, would you agree? 9 A I don't know if it has any relevance to health 10 or this case, but I could agree that dust particles get 11 in his beard. 12 Q And the EPA in the, in the 1986 publication 13 regarding potential exposures to mechanics from brake 14 repair discusses the possibility of exposure to 15 asbestos from asbestos landing on clothing or in 16 hair; is that correct? 17 A Are you talking about the 1986 EPA document or 18 OSHA document? 19 Q Yes, EPA document. 20 A I think there is a discussion of that, yes. 21 Q And that is an industrial hygiene 22 consideration when somebody works in a contaminated 23 atmosphere? 24 A Contact with clothing and hair can be, 25 depending on the chemical. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q And for asbestos it is? Page 81 2 A It's more important with respect to clothing. 3 I've not seen anybody give serious weight to the 4 contamination of hair as being a significant pathway 5 for contaminating the household. But certainly 6 clothing would be. 7 Q Okay. And with regard to clean-up what method 8 did Mr. Mallia testify they used to clean up the 9 garage? 10 A I think he used both sweeping and blowing. 11 Q Blowing of compressed air? 1 *s t ! i 1 12 A Sounds like it. That's, at times that's what 13 he said he did. j 14 Q And if Mr. Mallia filed the edge of a brake to 15 bevel the edge and then clean the file off by blowing 16 the compressed air would you expect that that would 17 release airborne asbestos fibers that were respirable 18 into the environment? . 19 A Anytime you ask about any and is there 20 exposure , of course it can be minuscule and 21 insignificant. But, you know, the most direct answer 22 to your guestion is sure, there could be some airborne 23 respirable fibers. 24 Q Do you have a copy of your 2003 paper? 25 A Yes . ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Could we have that, please? Page 82 2 Doctor, while your assistant is retrieving 3 that, could I ask you, what is your current rate that 4 you're charging? 5 A $445 per hour. 6 Q When did that go up from 425? 7 A Actually I'm not charging 445 per hour. 8 Q Okay. What are you charging? i ; 9 A I'm not sure. I think it may be 425. 10 Q What is ChemRisk charging for, and I 11 apologize , your colleague here with us, could you tell Jr. ! ) 12 me her name so i don't have to keep saying your - 13 colleague ? ! 14 A Yeah, Jennifer Pierce. 15 Q Ms. Pierce. 16 A And I'm not sure what her billing rate is. ! . j ? ; 17 It's probably around $150 an hour. j 18 Q And is she on the clock today? j 19 A Right this moment she's on the clock. 20 Q So if we add up what you're charging which | ; ; 21 would be approximately $425 an hour and what Ms. Pierce 22 is being billed at which is approximately $150 an hour 23 we're looking at a total for ChemRisk of 575 or ` | ! j 24 thereabouts an hour? ! 25 MR. LANKFORD: But her time should probably be i. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 83 1 billed to you because we only needed her for all these 2 documents. 3 BY MR. RUCKDESCHEL: . 4 Q Now if we can have the 2003 paper, please? 5 Thank you, Doctor. Doctor, there are a number of 6 studies that you report on and collect in the 2003 7 paper; is that correct? 8 A Correct. 9 Q Can you mark for me -- I'd like to mark that 10 paper as Exhibit 4 in the deposition and we'll see if 11 we have a clean copy. 12 Can I see what is in front of you again? 13 Doctor, I do want to mark that copy as it has 14 highlighting on it. We don't need to keep it with the 15 transcript, but since it's got markings on it and I'm 16 referring to it, I'd like to mark it so that the record 17 is clear. So if we could mark that as Exhibit 4, 18 please. 19 (Plaintiffs' Exhibit 4 was marked for 20 identification by the court reporter.) 21 BY MR. RUCKDESCHEL: 22 Q The highlighting on that document, who put it 23 there? 24 A I don't know. 25 Q Okay. My question regarding the 2003 paper, ? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Doctor, can you tell me which of the studies that are 2 considered and that go into the calculation of the 3 average exposure have filing of the edges of brake pads 4 occurring? 5 A I couldn't do that off the top of my head and I 6 doubt that it's discussed very frequently directly in 7 those studies. The filing of brakes during that time 8 era would have been a decision of the mechanic on a 9 case-by-case basis. And one has to infer that in the 10 more than 200 samples that were collected we properly 11 characterized the range of activities that are involved 12 in brake work so that somehow at the end of the 13 calculations, the end of the collection of all the data 14 and the resulting calculations, we believe we've 15 captured the various activities including the removal 16 of the wheel, opening the box, any grinding, any 17 sanding, any beveling that would have occurred. 18 You're aware that sanding and beveling should 19 not have been a standard and customary practice in this 20 time period between '78 and '85. It should not have 21 been necessary. 22 Q In 1986 the EPA put out a pamphlet regarding 23 exposure of mechanics to asbestos during brake 24 repair; is that correct? 25 A Right. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q You're familiar with the pamphlet? Page 85 | 2 A Yeah. Well, there is two of them but I'm 3 familiar with both of them. 4 Q In fact we have both of them here so we'll 5 mark them both. Putting as Exhibit 5 the pamphlet i 6 titled "Guidance For Preventing Asbestos Disease Among , 7 Auto Mechanics," you're familiar with that document? 1 8 A Yes. ; 9 (Plaintiffs' Exhibit 5 was marked for 10 identification by the court reporter.) | 1 j 11 BY MR. RUCKDESCHEL: ; 12 Q That documents discussing beveling of edges of ; 13 brake pads, does it not? 14 A If you remember the section where it is, if you 15 can point it back to me. I don't remember. 16 Q Pass it back and I'll take a look. It's right 17 here on the first page. I believe it's the second or : 18 third sentence. 19 A Yes. Grinding and beveling friction products, . 20 the document says: ; 21 "Grinding and beveling friction 22 products can cause even higher i 23 exposures." ^ 24 Q So at this point in 1986 the EPA at least 25 believed that beveling was a sufficient concern to : ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 86 j 1 discuss it in their pamphlet, "Guidance For Preventing 2 Asbestos Disease Among Mechanics," correct? 1 3 MR. LANKFORD: Calls for speculation. 4 THE WITNESS: I wouldn't agree with that. 5 BY MR. RUCKDESCHEL: 6 Q Why not? 7 A Because the fact that they talk about it as ]i 8 potentially historical issue doesn't mean they have 9 current concern for it. 10 Q Is there anything in the document that 11 indicates the EPA is discussing this historically as i |! | : 12 opposed to a current concern? 13 A In my view it does, yes. It cites Rohl, 1976; 14 Lorimer, '76; Rohl, '77; Hatch, 1970; Hickish and 15 Knight, 1970. These are all papers that were done 16 almost a decade or more before this paper, and I know 17 from reading other literature that in fact it says that 18 the brakes no longer need to be ground and beveled for 19 the time period you told me to assume this 20 occurred, '78 to '85. It doesn't mean it never 21 occurred. I'm not saying it never occurred. I'm just i i 22 that saying by and large it didn't need to occur and it 23 was an unusual event. So that that's why I say I 24 believe they are talking about historical statement. 25 By the way, this document has many, many flaws \ ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 in it and in fact is outside of the purview really of Page 87 2 the EPA to be discussing occupational exposure. I'm 3 not sure why they wrote such a document. 4 Q Dr. Paustenbach, I got a pen here. I'd like 5 you to take that document and put a red line through 6 statements in it that you disagree with. 7 MR. LANKFORD: Well, you him -- how many pages i i ] 8 is the document? 9 MR. RUCKDESCHEL: The text of the document is 10 not long. 11 THE WITNESS: 16 pages. 12 BY MR. RUCKDESCHEL: 13 Q Please do it. 14 A Well, it's not so much a matter ofdisagreeing. 15 I'd be happy to answer your question. i 16 "Grinding and beveling friction products can 17 cause even higher levels of exposure," is what is 18 stated here. That doesn't mean anything to a 19 scientist. So what I'm saying is this is a document 20 intended to communicate to the public in such a way as 21 to get their attention. You can't rely upon this as a 22 document upon which in this case or any other case you 23 can conclude whether or not people are appreciably 24 exposed. That would be wrong to do that. And that's 25 what I'm testifying to today. You should not, and I ESQUIRE DEPOSITION SERVICES (415) 288-4280 j] 1 will not attempt to use this document to talk about Page 88 2 causation or exposure. It's not meant to do that and ; 3 it's not a scientific peer-reviewed or even scholarly 4 document for doing that. 5 Q Doctor, are you suggesting that the EPA was 6 trying to create some sort of public hype about the 7 potential dangers to brake mechanics in publishing this 8 document? j j t jj 9 MR. LANKFORD:Objection, form. 10 THE WITNESS: I don't know whether you want to 11 be inflammatory or not but I will tell you I have not ] j i I 12 seen a scientific document or I wouldn't call something 13 a scientific document that relies on things like 14 television reports. Okay. Andthat'sone of the j j 15 citations in this. | 16 BY MR. RUCKDESCHEL: 17 Q Okay. But the citations regarding beveling 18 aren't to a television report, are they? 19 A I would challenge you to go back and find the 20 word "beveling" in each of the eight documents that 21 they cite here. 22 Q These are statements are statements of the 23 Environmental Protection Agency, correct? 24 MR. LANKFORD: Calls for speculation. . 25 ' THE WITNESS: I'm not sure they are. I can't 4 5 ESQUIRE DEPOSITION SERVICES (415) 288-4280 i Page 89 1 endorse that. These might very well be the statements ; 2 of the contractor of US EPA. 3 BY MR. RUCKDESCHEL:- . 4 Q. What I'd like you to do. Doctor, is what I : 5 asked you to do before. I'd like you to take a pen and 6 we'll start with this first section, Roman I, 7 "Mechanics' Exposure to Asbestos," and I'd ask you to 1 iK ] 8 draw a red line with that red pen through any : 9 statements there that you disagree with. 10 MR. LANKFORD: Let me object to theform. It 11 essentially is a compound question. You're asking him S 1 j j 12 to go through each of the statements made on various ; 13 different subjects and essentially asking him whether he ' 14 agrees with them. If you want to go through them one by ' 15 one and ask him, that may be proper. But essentially as j 16 phrased it's a compound question, and it's also vague, : 17 given the nature of each of the sentences. 18 BY MR. RUCKDESCHEL: i 19 Q Okay. Let me rephrase the question to address 20 counsel's objection. I'd like you to start with j 1 j 21 sentence No. 1: j 22 "Friction materials such as brake 23 linings and clutch facings often contain j j 24 asbestos." j 25 Is that statement factual accurate? j i ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 90 1 MR. LANKFORD: Objection, vague. Or objection 2 as to form in terms of time. 3 JUDGE KLINE: You may respond, Doctor. J 4 THE WITNESS: For the year that this was 5 printed that statement is true as presented. And I 6 think there many, many true statements throughout this 7 document. 8 BY MR. RUCKDESCHEL: 'j | ! I k 9 Q And my question, and we'll get through this a 10 lot quicker if you just answer the question. 11 A Okay. 12 Q The next sentence: 1 1 i | 13 "Millions of asbestos fibers can be 14 released during brake and clutch j 15 servicing." 16 Is that statement factual accurate? 1 17 MR. LANKFORD: Objection, vague, are you saying j 18 factually accurate -- vague as to time, overbroad, 19 factually accurate at the time made, factually accurate 20 time now. 1 j j 21 JUDGE KLINE: Why don't you be a little more ] 22 definite in your question? What are we talking about? 23 BY MR. RUCKDESCHEL: ! 1 j 24 Q Dr. Paustenbach, I'm asking, all of these | 25 questions I'd like you to assume that I'm asking you : 1 ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 about as of the date of the publication which is June Page 91 2 of 1986. Is that acceptable. 3 A Is that acceptable.. It is to me. 4 Q You understand what I'm saying then. When 5 this document was published in June of 1986 when I 6 asked you the question if the statement is factually i 7 accurate, what I'm saying was it factually accurate in 8 June of 1986. Do you understand? 9 A Sure. 10 MR. LANKFORD: For further clarification, are jj 11 you saying in terms of, because each one has a cite 12 after it, factually accurate in terms of its synapsis or | I j 13 interpretation of the studies or simply true at the . 14 time? j t } | 15 BY MR. RUCKDESCHEL: 16 Q I'm asking whether the statement itself is it! 17 factually accurate. Not whether it is an accurate j 18 quotation of a study but whether it is in fact a 19 factually accurate statement. I 20 JUDGE KLINE: You're asking whether or not that 21 statement was true at the time it was made -22 MR. RUCKDESCHEL: That's correct. j J 23 JUDGE KLINE: From a scientific point of view. j 24 MR. RUCKDESCHEL: That's correct. j 25 THE WITNESS: Now, Your Honor, this is the ; iMHiacnNKw ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 92 1 witness. You understand, I know where this is going so 2 we can do it if you like, but by going over sentences 3 and saying that they are in and of themselves accurate 4 does not also mean that they are informative.If that's 5 what you want me to do, I'll do it. 6 ' JUDGE KLINE: Answer the question in the best 7 way you can. You can explain your answer in any way you 8 want. | 9 MR. RUCKDESCHEL: Judge, so we keep the record 10 clear I'd ask that he answer the question and then I'll 11 ask if he needs to explain so we have a clear record. 12 MR. LANKFORD: Well, the problem is, Your 13 Honor, with respect to each of thesesentences, they are 14 very vague, ambiguous and overbroad in many ways as I'm 15 sure we'll learn here as he goes through them. And it's 16 impossible in many respects to give a response simply 17 yes or no. And the problem is with plaintiffs' counsel 18 demanding such a response. It's going to create a if 19 misleading record. 20 JUDGE KLINE: Well, you can answer the question 21 in the best way you can, whatever that answer is. If 22 plaintiff feels that that is not sufficient he can ask 23 the question another way. But you're not, you can 24 answer the question as best you can in your professional 25 opinion. ESQUIRE DEPOSITION SERVICES (415) 288-4280 ,) 1 BY MR. RUCKDESCHEL: Page 93 2 Q Dr. Paustenbach, the sentence that we're 3 referring to, "Millions of asbestos fibers can be 4 released during brake and clutch servicing," is that a 5 factually accurate statement in June of 1986? 6 A It's factually accurate. I don't think it's 7 informative for health risk assessment purposes. 8 Q Okay. The next sentence: i i 9 10 11 , 12 "Grinding and beveling friction products can cause even higher exposures." Is that a factually accurate statement in \i l | i j 13 June of 1986? 14 A It's inaccurately written. It should say 15 higher airborne concentrations. But, the statement is 16 accurate but not informative. j \1i 5 17 Q The next sentence: 18 "Like germs, asbestos fibers are 19 small enough to be in visible and can 20 remain and accumulate in the lungs." 1 i jj 21 In June of 1986 was that a factually accurate 22 statement? | 23 A Some asbestos fibers certainly are small enough 24 to be invisible and they may or may not have biological 25 significance. ;| s i \ 1> ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 94 1 Q Can they remain and accumulate in the lungs? 2 A Yes, sir. 3Q "When you see a dust cloud during 4 brake work you are seeing clumps 5 containing thousands of fibers." i 6 Is that a factually accurate statement in June 7 of 1986? 8 A It could be but as presented it is not entirely : 9 accurate because it gives you an impression that all 1 10 clumps contain thousands of fibers. That may or may ; 11 not be true. 12 Q So you believe the EPA is overly broad in that 13 statement? 14 A Yeah, I think they are just careless in their ; 15 writing. 16 Q Careless, okay. | 17 A If not careless, not terribly specific or i 18 scientific. 19 Q The next sentence: 20 "Most of the smaller fibers will not > 21 show up with the methods commonly used 22 for measuring asbestos levels in the air, 23 such as the method used to determine 24 compliance with the OSHA asbestos ! 25 standard, since most asbestos fibers and ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 95 1 brake dust are too small to be measured 2 by these methods." 3 Is that a factually accurate statement? | 4 A It is. 5 THE VIDEOGRAPHER: We need to change tape. | 6 MR. RUCKDESCHEL: Okay. Would you like to take 7 a break since we're an hour in? 8 THE WITNESS: No. j 9 THE VIDEOGRAPHER: This concludes Tape 1. Off 10 the record. The time is 11:26. 11 (Discussion off the record.) 12 THE VIDEOGRAPHER: Here begins Tape 2. We're 13 on the record. The time is 11:30. 14 BY MR. RUCKDESCHEL: 15 Q Rather than continuing sentence by sentence 16 through all of Section 1, is it acceptable to you to 17 read the remaining three paragraphs and tell me any of 18 the sentences that you believe are factually 19 inaccurate? 20 A All I would say is it's a hodgepodge of truths 21 and untruths that aren't too informative. For 22 instance, in the first sentence it says: 23 "Asbestos released in the air 24 lingers around a garage long after a 25 brake job is done." j ! ' ; ; ' : ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 96 1 That's possible, there's no question about 2 that, that the small fibers can stay in the air for a 3 while and can be. breathed in by everyone inside a 4 garage. I suppose that's possible, too, including 5 customers. It has to do with each case, with whether 6 or not the customers are in proximity and whether or 7 not the fibers are still there. 8 So sure, if you want to just write a bunch of 5j i 9 inflammatory things that aren't informative in order to 10 tell the public, hey, there may be a hazard here, i 11 that's fine. It depends what you want to do with the 12 document. If you want to use this document or EPA 13 wants to use it simply to alert the public about the 14 possible hazards of brake dust, that's fine. 15 I'm just saying I wouldn't rely on it nor 16 would I suggest relying on it in a case like this. If 17 you want I'll go back over each of the paragraphs 18 saying that. 19 Q You said there were some truths and untruths. 20 And I'm just asking you, can you identify for me the 21 untruths? 22 A Well, it's possible there are no customers in 23 proximity of the brake job. Therefore, that would be 24 an untruth. 25 It's an opinion in the second paragraph whether ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 or not: Page 97 2 "In situations where asbestos 3 exposures cannot be eliminated entirely, 4 they should be reduced to the lowest 5 possible level." 6 I don't know what to say about that. 7 Q Well, do you disagree with the proposition 8 that it's always better to reduce the level of asbestos I 9 in the air? 10 MR. LANKFORD: Overbroad. 11 THE WITNESS: I think the Supreme Court's ruled 12 on that on the benzene decision for one thing. Yes, I 13 think there is a point where society and regulatory 14 agencies conclude that it's a misuse of taxpayer's money 15 to attempt to take concentrations to inordinately low 16 levels. I think that's very clear. 17 So even though this is a nice statement for 18 them to make, from a societal standpoint this isn't the 19 way we choose to do business. 20 BY MR. RUCKDESCHEL: 21 Q Where does society draw that line? And I'm 22 going to ask you after society where we draw that line, 23 where the regulatory agencies draw the line, and then 24 where you draw that line. 25 MR. LANKFORD: And what is the question? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 BY MR. RUCKDESCHEL: Page 98 2 Q Dr. Paustenbach was talking about there 3 becomes a point where as a society and as regulatory 4 agencies we believe that it's no longer -- 5 A The benefits are vanishingly small for the 6 cost. 7 Q And so my question for you, and let's phrase 8 it in terms of .risk. 9 A Right. 10 Q Where does society draw that line with respect 11 to exposure to asbestos dust where, do the regulatory 12 agencies draw the line, where does Dennis Paustenbach 13 draw that line? 14 MR. LANKFORD: Overbroad, objection as to form. 15 Same for any product and any fiber type? 16 BY MR. RUCKDESCHEL: 17 Q Yeah, we are talking about risk here, we're 18 not talking about products or fiber type. I'm 19 assuming, Dr. Paustenbach, that your opinion regarding 20 fiber type doesn't make any difference with regard to 21 the question of when is the risk sufficient that it 22 would be good to get the number of fibers down? 23 MR. LANKFORD: Without regard to products. So 24 there are two parts to the question. . 25 BY MR. RUCKDESCHEL: ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Do you agree? Page 99 2 MR. LANKFORD: Well, objection as to form. 3 THE WITNESS: Yeah, we don't have a proper 4 question. 5 BY MR. RUCKDESCHEL: 6 Q Okay. 7 A But I can do it, do you want me to talk about 8 the spirit of your question? 1 c ii 9 Q Let me ask the question again. 10 A Okay. 11 Q Is a l-in-1000 risk of mesothelioma for 12 crocidolite asbestos exposure the same concern from a \ j 13 societal perspective as a l-in-1000 risk of 14 mesothelioma from chrysotile asbestos? 15 A Probably not. 16 Q Why not? 17 A Because the certainty with which we can predict 18 a l-to-1000 risk of crocidolite is quite different than 19 what we can predict with chrysotile, quite different. 20 So society, as reflected by the agencies when they 21 review it, will probably conclude that those risks are 1 \ 1 1 t 1 ] ! i 22 different. 23 Q Currently all of the United States government 24 agencies, and in fact, yeah, all of the United States 25 government agencies treat the risk the same for ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 different fiber types; is that correct? Page 100 2 MR. LANKFORD: Overbroad. 3 BY MR. RUCKDESCHEL: 4 Q Current positions? 5 A The question is not worded properly. I think I 6 know what you mean but the question isn't one I can 7 identify. 8 Q Dr. Paustenbach, can you identify for me a 9 regulatory agency of the United States government that 10 treats the risks of different fiber types of asbestos 11 differently? 1 i 12 A. That's a different question. 13 Q Okay. Answer that question then. 14 A Currently because they haven't been reviewed in 15 about ten years or more, they are treated for 16 regulatory purposes the same. 17 Q Okay. Now I want you to assume that you are 18 scientifically, you are presented with sufficient 19 scientific evidence that you are comfortable there is 20 an accurate estimation of a l-in-1000 risk in a 21 particular situation to crocidolite exposure, and that 22 you are also presented with what you consider to be 23 scientifically sufficient evidence that there is a 24 l-in-1000 risk of mesothelioma with exposure to 25 chrysotile in a different situation. ESQUIRE DEPOSITION SERVICES (415) 288-4280 -> <***;>** Page 101 1 From a societal standpoint, from a risk 2 assessment standpoint are those risks the same? 3 MR. LAWYR: Objection. Incomplete 4 hypothetical, risk versus what benefit? 5 MR. RUCKDESCHEL: Counsel, the proper objection 6 in a deposition in Florida is to say objection. 7 JUDGE KLINE: Well, if the witness can respond 8 to it, or if he can't he will tell us he can't respond 9 to it. It's not a question he can respond to. I don't 10 know. What does the witness say? 11 THE WITNESS: As I heard the question, you 12 asked me to assume that both fibers cause mesothelioma, 13 that was known, and if in fact it was known that those 14 were accurate risks, those risks would in fact then be 15 the same. 16 BY MR. RUCKDESCHEL: 17 Q Okay. Doctor, do you believe that the EPA has 18 an agenda to inflame the public or to exaggerate the 19 potential risks of certain situations? 20 MR. LANKFORD: Can I have that read back? 21 (Record read.) 22 MR. LANKFORD: Objection as to form. 23 THE WITNESS: I think the EPA has an extremely 24 worthwhile role in society. And the question you've 25 asked has been debated in probably thousands of ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 different articles and newspaper exposTs. So I'm not Page 102 2 going to weigh in on that today. I'm just telling you 3 that that's been discussed many places. 4 BY MR. RUCKDESCHEL: 5 Q You weighed in on it in one of those newspaper 6 exposTs? 7 A' Hard to say. You'd have to be specific. 8 MR. RUCKDESCHEL: Let me show it to you. We'll j 9 mark as Exhibit 6. 10 (Plaintiffs' Exhibit 6 was marked for s 11 identification by the court reporter.) 12 BY MR. RUCKDESCHEL: 13 Q Dr. Paustenbach, I've put in front of you a 14 copy of the New Jersey Star Ledger, quote: 15 "When corporations need an expert, 16 he gladly answers the call." 17 Are you familiar with this article? 18 A I am. 19 Q And you're quoted in this article? 20 A Yes, sir. 21 Q And on the second page of this printout is a 22 quote that says, quote: 23 "I happen to think, if there is a 24 bias in the world, and I guess there is, 25 it goes both ways. The agencies say they ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 103 1 are protecting the public health and 2 indeed they are. But they also need to 3 make things exciting and look productive, 4 otherwise they are not going to receive 5 the funding they want to receive." 6 Did I read that correctly? 7 A Yes, sir. 8 Q Is that an accurate quotation of you? 9 A I don't know. I'm not going to disagree. It 10 may or may not be. 11 Q Okay. Do you believe that the June 1986 ] !z 12 document that we've been discussing, "Guidance For 13 Preventing Asbestos Disease Among Mechanics," marked as 14 Exhibit 5 in this deposition is an example of the EPA 15 trying to make things exciting and look productive? 16 A I can tell that you that this particular 17 document certainly doesn't reflect a balanced view of 18 the hazards to auto mechanics based on what was known 19 at the time. 20 Q So it's your position that in publishing this 21 document the EPA published an unbalanced view of the 22 public health situation regarding asbestos disease and 23 brake mechanics? 24 A One has to conclude that. For example, one of 25 the most pivotal pieces of work funded by the ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 government, by the predecessor of EPA, by the Public Page 104 2 Health Service, is Lynch. It's not even mentioned in 3 here. 4 As I recall, the conversion to fosterite isn't 5 mentioned in here. There are no studies that were 6 focused on this very issue beyond the original ones by 7 Mt. Sinai that are discussed in here. So I don't see 8 how anybody could claim it was balanced and it clearly 9 was not meant to be a scientific, balanced view of the 10 issue. 11 Q You would agree the EPA published this 12 document to raise awareness to automobile mechanics of 13 potential hazards of performing brake repair work? 14 A Sure. 15 Q And that's part of the function of the EPA? 16 A Actually it's not. It's really a function of 17 OSHA. I'm surprised that EPA got into this issue. 18 OSHA would be clearly the agency responsible for this 19 issue. If they talked about the release to the ambient 20 air then that would make sense-. I don't know why EPA 21 is weighing in on this in this document. 22 Q Do you believe that brake mechanics should 23 have been presented with the information contained in 24 this paper? 25 MR. LANKFORD: Objection as to form. s.1 3 ESQUIRE DEPOSITION SERVICES (415) 288-4280 JUDGE KLINE: You can.respond. Page 105 THE WITNESS: I don't choose to take issue with EPA's decision to.do that. I mean I would have preferred they give a more balanced view and I probably would have preferred OSHA write the document in the way they wanted to write the document. But if EPA chose to want to do this I'm not going to take issue with that. BY MR. RUCKDESCHEL: Q One of the fundamental premises on which our society is founded is the right of each of us to make decisions about our own body and our own self? MR. LANKFORD: Well, objection as to form. BY MR. RUCKDESCHEL: Q Would you agree? A I don't have a problem with that statement. Q In fact, you've written about that type of issue in your early writings in the '80s? A I did indeed. And I promoted teaching it in colleges. Q And part of being able to make an informed decision about how to conduct your life is understanding what the facts are that you should consider when making a decision? A That's what I've written about and taught over the years. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q I understand. And I want to digress, Page 106 2 Dr. Paustenbach, into a subject that is related to that 3 issue and I want to preface it by saying that -- 4 Let's just go off the record for a minute? 5 THE VIDEOGRAPHER: Off the record. 6 (Discussion off the record.) I 7 THE VIDEOGRAPHER: Back on record. The time is 8 11:44. ' 9 BY MR. RUCKDESCHEL: 10 Q Doctor, you have performed in your career work 11 for companies that are facing litigation or regulatory 12 action regarding pollution from chromium 6. Is that - 13 A That's fine. 14 Q And you did so in New Jersey for a group of 15 three firms and then in California for at least Pacific 16 Gas & Electric? 17 A That's correct. 18 Q In connection with that work, and I'm just 19 going to call that generically the chromium work. Is 20 that acceptable? 21 A Sure. 22 Q In connection with yourchromium work you 23 performed a number of experiments? 24 A Yes. 25 Q And some of those experiments involved ESQUIRE DEPOSITION SERVICES (415) 288-4280 JI 1 exposing yourself and others to some levels of Page 107 j 2 hexavalent chromium? 3 A True. . 4 Q In one of the studies you and a number of 5 other people drank hexavalent chromium over a number of 6 days and then measured the amount of hexavalent 7 chromium in your Your Honor and blood? j `j 1 1 ! 8 A True. 9 Q And you subsequently published some papers 10 about that test? 11 A True. 12 Q You also performed an experiment where you and 13 others sat in a hot tub full of hot water that had been 14 laced with hexavalent chromium, spiked, I don't know 15 what the right word is, but had hexavalent chromium in 16 it? 17 A Yes. 18 Q And then you measured whether the hexavalent 19 chromium got into your body? 20 A True. i ; 21 Q When you did those experiments were you 22 convinced that it did not pose a meaningful risk to 23 your health? 24 A Sure. 25 Q And you were convinced of that before you did ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 the experiments? Page 108 2 A Sure. 3 Q Did you explain to the other subjects of that 4 experiment the potential risk of participating in the 5 experiment? 6 A Of course. 7 Q What typesof things did you explain to them? 8 A Well, first, keep in mind I onlyselected 9 people or asked for volunteers of those that I thought 10 could be informed. And that means they were all 11 trained as scientists that would be aware of what I was 12 saying, and in their own right could make their own 13 decisions independent of what I was saying. 14 My recollection is they were all were either 15 practicing toxicologists or trained toxicologists or 16 physicians. So I tried to be careful to include only 17 people that were already in the field. That way the 18 issue of informed consent, you know, was very easy to 19 get over that hurdle. 20 We also had a written disclosure and an 21 oversight board, a medical review board that reviewed 22 the protocol and approved it. And my recollection is 23 that they signed also a statement that they understood 24 what the study was about and whether there were any 25 risks associated with it. It was easy for me to get ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 109 1 involved because others had done similar work before me 2 in Italy. So it isn't something I had to guess at 3 whether or not there was much of a hazard here. 4 Q If you were convinced that there was no risk 5 to your health or the health of the other people that 6 were going to take part in these experiments why was it 7 necessary to give them that information? 8 A Well, I think from a practical standpoint this 9 is what society would like to see. And also from a 10 practical standpoint we live in a litigious society. 11 So I think for both reasons it was the right thing to 12 do. 13 Q At the time that the first ingestion study, 14 the study where you drank the chromium was done, had 15 Dr. Zhang's 1997 paper been published? 16 A His first paper? 17 Q No, the second paper. 18 A I don't recall the timing exactly. I thought 19 that Zhang's paper came after we did the study. That's 20 my recollection. 21 Q And all I'm trying to establish is that at the 22 time the studies were done there was at least the -- 23 Let me go ahead and mark it since we're 24 talking about it. 25 (Plaintiffs' Exhibit 7 was marked for ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 110 1 identification by the court reporter.) 2 BY MR. RUCKDESCHEL: 3 Q At least the earlier paper by Zhang, 4 Z-H-A-N-G, that the ATSDR had translated in the 5 literature; is that correct? 6 A I was a aware of the paper, yes. 7 Q Okay. And that paper concluded that there was 8 an increased risk of stomach cancer to individuals who 9 drank water contaminated with hexavalent chromium in 10 the area that Dr. Zhang studied? 11 A Well, Yeah, but you have to look at the dose 12 and duration and what else they were exposed to and 13 whether'the study made any sense. And as his follow-up 14 paper shows the results didn't make any sense, and we 15 were aware of that at the time, so... 16 Q Sure. And in fact, your tomorrow wrote drafts 17 to the follow-up paper of Dr. Zhang? 18 A Well, we certainly wrote Dr. Zhang and asked 19 him if he was aware of these shortcomings in his study, 20 at which point he said yeah, I guess I'm aware of them 21 now and I agree there's a problem here. 22 Q And your team hired him? 23 A No, You know, Mr. Praglin I think said we've 24 hired him. It's my recollection he may have been paid 25 some amount as a consultant. But I'd hate to say we ESQUIRE DEPOSITION SERVICES (415) 288-4280 . 1 hired him. I don't know. He received some Page 111 2 compensation for the time spent looking at his old 3 data. 4 Q Your firm tracked him down in China? 5 A That's true. 6 Q You located him, you hired him as a consultant 7 and then worked with him on re-analyzing the data from 8 his earlier paper? j : ! ; 9 A I'd have to go back and look at the data but I 1 10 think that's approximately correct. 11 Q Okay. 12 A I wouldn't want to leave the impression we had 13 to pay him consulting moneys to re-evaluate his data. ! 14 I don' t recall exactly how that went. But be that as 15 it may , I think he received some moneys for his time. : 16 Q And the documents that Mr. Praglin has marked 17 and shown you at deposition are the documents you're ; 18 referring to? ! 19 A In part. > 20 Q Okay. 21 A I mean there is some things Praglin showed me 22 that were complete and others not but -- 23 Q I understand. 24 A Let's assume that you're being forthright and : 25 I'll just say yes, I'm referring to documents Praglin : ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 showed me. 2 Q And I'm not trying to get into a discussion of 3 the involvement of your employees with re-analysis of 4 Dr. Zhang's data to the extent there was any 5 involvement. I'm simply trying to establish that at 6 the time the ingestion studies were performed, 7 Dr. Zhang's earlier paper at least raised in the 8 scientific literature a concern that hexavalent 9 chromium in sufficient dose could cause stomach cancer 10 when ingested? 11 A I don't know if I want to agree with that 12 because I don't know what fraction of the scientific 13 community gave that study serious consideration. I 14 just don't know. 15 Q Okay. 16 A Well, I mean studies out of China at the time 17 involving water pollution and even today are suspect 18 unless all the other contaminants in the water are 19 looked at, both microbial and chemical. And there 20 happens to be a high background incidence of stomach 21 tumors in China irrespective of chromium. And he 22 acknowledged that and I think everybody that studies 23 that in China acknowledges that. And so I don't know 24 how many people in the scientific community took that 25 relationship he thought he saw very seriously. I just ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 don't know. Page 113 2 Q Okay. You would agree that the scientific 3 community tended to focus more on Dr. Zhang's earlier 4 paper than on his retraction even after the retraction 5 was published? 6 A I couldn't say that. This hasn't been studied 7 very carefully except for the California Government 8 Blue Ribbon Panel since we did our work. 9 Q Okay. You talked about selecting 10 toxicologists to approach with whether they would 11 participate in the study because they were sufficiently 12 sophisticated to be able to make an informed decision. 13 A I mentioned that. 14 Q You wouldn't have asked, for example, an 15 individual working in the mailroom if they wanted to 16 participate? 17 A I wouldn't have chosen to do that. I wouldn't 18 take issue with other people maybe. But personally I 19 chose not to do that. 20 Q And that's because an individual who did not 21 have the level of sophistication of a practicing 22 toxicologist might not be able to understand or 23 comprehend the various issues needed to give an 24 informed consent about participating in the hexavalent 25 chromium studies? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 114 1 A Certainly when you're asking people to take in 2 doses that are not standard and customary, then I think 3 it's good for them to be fully informed. 4 Q And would you have asked somebodywith an 5 education equivalent to Joe Mallia to participate in 6 your hexavalent chromium study? 7 A I could have. I just didn't think atthe time 8 it was the right thing to do. That's all. 9 Q Why not? 10 A Well, because I just felt like the best 11 approach to doing a volunteer study to a chemical that 12 deserves evaluation should have as much informed 13 consent at possible. That was just my personal view 14 about it. Most studies, of course, aren't done that 15 way. 16 I mean we do almost all the pharmaceutical 17 studies involving people that aren't physicians or 18 aren't toxicologists' or aren't pharmacologists and 19 there are review boards that say that's a perfectly 20 acceptable way and we need to do it that way to get a 21 fair representation of the differences in responses in 22 society. So it's not that uncommon for people who 23 don't have special education to be involved in these 24 kind of studies. I just chose not to do that. 25 Q Sure. But this was a study performed in ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 connection with litigation? 2 A That's right. 3 Q It wasn't a study, designed to see whether we 4 could come up with a better protocol for treating 5 cancer? 6 A No, but of course this work is going to be 7 relied upon when the time comes when we choose to 8 regulate chromium in water. 9 Q Sure. I understand. But that's an indirect 10 benefit to society? 11 A In this case it was an indirect benefit. 12 Q All right. And you've written about the 13 difference between direct and indirect benefits to 14 individuals and its relation to what level of risk 15 we're willing to accept as a society? 16 A Voluntary and involuntary is what you're 17 referring to I think. 18 Q I was going to get to that, but you've also 19 written about direct and indirect, have you not. 20 A Perhaps. I don't recall. I may have. I've 21 written quite a bit. 22 Q Okay. And you talk about that in your 23 writings , about how we as a society look at risk and 24 what is and what is not acceptable? 25 A That is a different issue and I talked about Page 115 5 I ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 that a lot. Page 116 2 Q Okay. Doctor, I'd like to talk with you for a 3 minute -- well, before I move on, your team, it was 4 McLaren/Hart when you did the chromium studies, right? 5 A Yes. 6 Q Your team at McLaren/Hart also performed a 7 study with a mannequin in a shower? 8 A That's right. 9 Q Did you do a human studywith a shower? 10 A No. 11 Q Why not? 12 A' Because we neededsomebody to stand still in 13 the shower for a long period of time and I didn't think 14 it was necessary. Normally all we wanted to do was 15 measure the airborne concentrations of a person. It 16 was irrelevant really. It just needed someone or 17 something to be 6 feet tall and to be able to hang 18 these sampling devices on them. We could have used the 19 human. It just would have been boring work and we 20 would have had to heat the water I suppose more than we 21 did, so... 22 Q Would you have been more concerned with safety 23 in a human study in a shower for hexavalent chromium 24 given the fact that inhalation is recognized as a human 25 carcinogen? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A Oh, no. Because it's not volatile. Page 117 2 Q Okay. 3 A So it wouldn't be a hazard anyway. 4 Q So it wasn't a safety concern that caused you 5 to use a mannequin? 6 A No, no. It was a boring concern. ' 7 Q Did you disclose in the chromium papers that 8 the work was funded by the companies you were working 9 for? 10 A You know, Praglin asked me that and I told him 11 we'd have to look at each paper. As I recall, most 12 were not. As I recall. But we'd have to go back and 13 look at that. And as I told him, the reason why was at 14 the time it was not standard and customary practice. 15 Although I was one of the first people to ever start 16 with the level of disclosure that you see in my papers 17 today, it really, as I mentioned to him, was dependent 18 on journal and journal editor as to whether or not they 19 wanted to do it. I wouldn't have any problem 20 disclosing and I did I believe for some of them and 21 certainly the later papers. 22 Q Did you disclose, did your firm disclose its 23 involvement in the writing of the second Zhang paper? 24 A Well, I don't recall that we did. But there is 25 correspondence on that I think. My recollection is ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 118 1 that Zhang said that he would prefer to have exclusive 2 authorship. And I think I testified to Mr. Praglin 3 that at the time it was not thought to be an acceptable 4 thing to do, for the Chinese communists to be doing 5 collaborative work with those of us in the west. And 6 that was possibly even documented in some of the 7 Chinese exchange with him. But it's very clear 8 ultimately he did not want to have us disclosed in his 9 last paper. 10 Q When you subsequently cited Zhang in his 11 second paper and other works did you note that your 12 firm had been involved in the authorship of the paper? 13 A We weren't authors on the paper ultimately, and 14 that wouldn't have been standard and customary practice 15 to do that. 16 Q But your firm did draft various versions of 17 the paper? 18 A Well, I don't know if that is a proper 19 characterization. Remember, he was writing to us in 20 Chinese. So the drafts were his, and we made 21 modifications back and forth. 22 I fully anticipated we'd be co-authors on the 23 paper. I didn't appreciate his concerns about the 24 government, the government's views that they may not 25 want him to interact with westerners on this research. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Are you aware of the existence of any of the 2 Chinese communications from Dr. Zhang? Page 119 3 A Yes, I am as a matter of fact. I was shocked 4 at the amount of correspondence there was and that ; 5 Mr. Praglin failed to discuss it the many times he said j 6 there wasn't any. He had been presented apparently 600 j 7 pages of Chinese and yet he continues to say it doesn't 8 exist. I don't quite understand what he's talking 9 about. But he has all 600 pages. : 10 Q You got involved in the asbestos litigation in 11 the middle of 2001? ; 12 A It must be very close to that. 13 Q That's sort of the- beginning of the 14 chronology? j 15 A Perhaps. 16 Q You get a call from Darrell Grams at Ford? 17 A Yes, I did. 18 Q And you'd worked with Mr. Grams previously 19 when he was at Dow or working for Dow? 20 A He was outside counsel. 21 Q And you were involved with him at the Silicon 22 breast implant litigation? 23 A That's correct. 24 Q Mr. Grams calls you up and he says are you 25 interested in looking at some papers regard regarding : : ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 asbestos and brakes? Page 120 2 A That's true. 3 Q And he sends you a few papers? 4 A That's my recollection. 5 Q You read those papers and call him back and 6 say I'm interested? 7 A Yes. 8 Q He then has you come out to Detroit and you 9 meet with Mr. Grams and with lawyers for General Motors 10 and Chrysler as well? 11 A That's my recollection. 12 Q After that meeting it's decided that, you 13 know, you all do a little meet and greet and decide, 14 well, I'd like to work with you and you'd like me to 15 work with you and so you're hired, even though the 16 words "you're hired" aren't said? 17 A Were asked to do additional work. 18 Q Okay. And that additional work involves 19 getting yourself educated on issues relating to 20 asbestos, and particularly asbestos and brakes? 21 A That's true. 22 Q You're sent a bunch of materials by the 23 lawyers from Ford, General Motors and Chrysler? 24 A That's fair. 25 Q And you also go out and collect some other ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Page 121 1 material from the medical literature and other sources? 2 A That's also fair. 3 Q It takes you about six months to get up to 4 speed on those issues. 5 A Yes. 6 Q So if you started in approximately the middle 1 7 of 2001 in this process, we're talking early 2002, the \ 8 preliminary education is done. i 9 A Okay. | 10 Q Is that fair? : 11 A I'm going to say it's reasonably close. 12 Q Okay. And that's what I'm looking for, i 13 reasonably close. Hand grenade stuff here. 14 You then spend another six months or so 15 preparing yourself for the possibility of testifying in 16 lawsuits? 1 17 A Probably fair. 18 Q All right. And that takes us pretty much till 1 19 the middle, approximately the middle of 2002. j 20 A Again, I'd have to go back and look at the 21 records but I'll assume since it sounds like you're 22 relying on prior testimony, this is close. 23 Q All right. And some point around that time, 24 around a year after you're contacted you call up -- j 25 Let's go off the record. : ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 122 1 THE VIDEOGRAPHER: Off the record. The time is 2 12:05. 3 (Discussion off the record.) I 4 THE VIDEOGRAPHER: Back on the record. 5 BY MR. RUCKDESCHEL: 6 Q Sometime in mid 2002 or about a year after 7 your first contact with Mr. Grams, you have a 8 discussion with your clients about writing some papers? I 1 I i 9 A That's about right. ] 10 Q And that work then leads to the publication of i 11 two papers, your 2003 paper about dust levels and your . : 12 2004 paper regarding state of the art? 13 A I say to the client this story is so 14 interesting and has yet to have been put together in 15 one place, that I thought it made sense to share it 16 with the scientific community. So they agreed to 17 support that work. I 18 Q Okay. And they in fact paid for that work? 19 MR. LANKFORD: Objection. 20 THE WITNESS: By and large that's right. 21 BY MR. RUCKDESCHEL: j j J 22 Q Okay. And am I correct, you say by and large. 23 I've seen testimony before that you didn't bill all the j 24 time. Is that the reason why you say by and large they j 25 paid for it? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A That's right. Page 123 2 Q Okay. Did anymoney change hands between any 3 party other than General Motors, Ford and Chrysler 4 paying Exponent? 5 MR. LANKFORD: Vague, overbroad. 6 THE WITNESS: I think your question is did any 7 other firms other than those three pay any anything 8 towards the work needed to write those papers. 9 Q Right. 10 A No. The answer is no. 11 Q Okay. Did Exponent write a letter to General 12 Motors and Ford and Chrysler and say, hey, we're going 13 to give you guys a discount, we're not going to bill 14 all our time? 15 A No, no such letter was written. I know this 16 sounds incredible to a lawyer but we don't bill all of 17 our time when it comes to doing scientific writing. 18 It's so painstaking that we just are too embarrassed to 19 charge clients for the number of hours we invest in 20 writing papers. It just seems not right. I know 21 lawyers don't feel that way. I know they usually 22 charge for every minute that they write, but we don't. 23 It's just too much, it doesn't seem fair. ' 24 Q Here's what I'm getting, because it's seems 25 like you're muddling. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 124 1 A I can't imagine that,I couldn't have beenany 2 more clear. 3 Q Let me explain why. Because the paper says it 4 was funded in part by Ford, General Motors and 5 Chrysler. 6 A Right. 7 Q Did Exponent account for the time that was 8 spent that wasn't billed, and write that off as a i 9 business expense? 10 MR. LANKFORD: Objection, calls for } 11 speculation. 12 JUDGE KLINE: You may response if you can. 13 THE WITNESS: You can't write these things off 14 as business expenses if they are not income. But 15 secondly, yes, I guess in a way Exponent ends up 16 funding, if you will, that work, because you're not 17 charging the client the money. In a way that's true. 18 BY MR. RUCKDESCHEL: 19 Q Now that's something that you do because you 20 don't want to charge the client the full freight? 21 A I guess that's, I think that's what I just said 22 yes. 23 Q Was there a restriction from General Motors, 24 Ford and Chrysler on how much could be billed? 25 A No, no, it was pretty much the decision of each ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 of us authors to say, guys, we've spent enough time, Page 125 2 billable time on this. Whatever we do here is for our 3 own nuance, if you will, with respect to writing a 4 precise paper. 5 Q Was it a professional courtesy to Ford, 6 General Motors and Chrysler that you didn't charge 7 them? 8 9 MR. LANKFORD: Asked and answered. THE WITNESS: No, I put professional courtesy I 1j i ] ] 10 think in a different box. It's a sense of right and ' 11 wrong with respect to what is the proper amount of time 12 to spend on these issues. 13 I happen to be a very, very picky writer. I'll 14 do 8, 10, 12 revisions of most of my writing. I can't 15 feel good about charging clients for all that. That's 16 personal choice of mine. Either I'm a poor writer or I 17 want the text to be extraordinarily clear. It's one or j 18 the other. But I don't feel comfortable charging for i 19 all my writing time. 20 Q Were there restrictions of these two papers? 21 A Of course there were. 22 Q Do the drafts exists? 23 A No. 24 Q Why not? 25 A You never keep drafts. You go through so many ! : ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 126 1 drafts , especially on a paper of that size. You would 2 never keep them. It would be confusing for one thing. 3 Why would you keep them? 4 Q Were drafts that were submitted to the 5 publisher returned prior to the final publication of 6 the paper? 7 A You wouldn't call them drafts at that point. j j 8 You would call it your submitted paper. ] 9 Q Okay. 10 A And then there's a revised paper based on the 11 comments. 12 Q Do copies of the submitted papers exist? 13 A No. | 14 Q' Why not? 15 A Because there would be no reason to keep them. ; 16 Q Since starting to work with General Motors, 17 Ford and Chrysler in brake cases how many cases have 18 you been involved with where an individual with 19 mesothelioma was asserting a claim against General 20 Motors , Ford or Chrysler? 21 THE WITNESS: Can I hear that back,.please? 22 (Record read.) 23 THE WITNESS: I couldn't say for sure. 24 BY MR. RUCKDESCHEL: 25 Q Is it more than 10? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A Yes. 2 Q Is it more than 20? 3 A I would think so. 4 Q Is it more than 50? Page 127 | 1f i j 5 A I think so. 6 Q How many of those, is it more than a hundred? 7 . A I don't think so. I'm virtually certain it is 8 not a hundred. 9 Q How many of those cases are-reported in the ii i ! 1i j 11 10 medical literature? 11 MR. LANKFORD: Calls for speculation. 12 THE WITNESS: I don't know. And I don't know 13 how you'd know. 14 BY MR. RUCKDESCHEL: 15 Q Let me ask it then a different way: Are you 16 aware of any of those cases being reported in the 17 medical literature? 18 A Well, it would be the same answer. I've never 19 thought about whether or not they were picked up in any 20 of the epidemiology studies. Nor do I know if they've 21 been reported in case report. But I doubt if the ones 22 I worked on have been in case reports. They may have 23 been caught in an epi study. 24 MR. RUCKDESCHEL: Let's go off the record. 25 (Discussion off the record.) ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 128 1 MR. RUCKDESCHEL: Okay. Madam Reporter, could 2 you read back the last partial question? 3 THE REPORTER: There was no partial question. 4 MR. RUCKDESCHEL: Okay. 5 THE WITNESS: Maybe it's a. good time for lunch. 6 BY MR. RUCKDESCHEL: i 7 Q How many of the cases of the 50 to 100 8 mesothelioma cases that you have reviewed while working 1 9 for Ford, General Motors and Chrysler are individuals 10 that had no other demonstrable exposure to asbestos? 11 MR. LANKFORD: Misstates testimony and calls 12 for speculation. 13 THE WITNESS: I don't know, I've not tried to 14 figure that out. 15 BY MR. RUCKDESCHEL: 16 Q Did Mr. Mallia have exposure to asbestos other 17 than from brakes? 18 A It's not apparent to me that he did. This is 19 one of those situations where he may have been exposed 20 and he was unaware of it as Roggli's papers talk about, 21 and/or he has an idiopathic meso. 22 Q And Dr. Roggli's papers discuss the fact that 23 examination of lung tissue of individuals who have died 24 from mesothelioma often reveals that they have 25 quantities and types of asbestos in their lungs that i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 show they were exposed to asbestos even though they Page 129 2 were unaware of it? 3 A Yeah, usually significant guantities.. 4 Q And of the 10 -- let me start over. In the 5 Spirtas paper from the 1980s, Spirtas concludes that 6 90 percent of the mesotheliomas that they looked at in | 7 their paper had a demonstrable exposure or had a known 8 exposure to asbestos. 9 The individuals Dr. Roggli studied would be in 10 the 10 percent that didn't; is that correct? 11 MR. LANKFORD: Form. 12 THE WITNESS: It depends on which study you're i j ji 3 1 | 13 talking about. He has both kinds of people in his 14 studies. But all he mentions is that he's surprised at 15 people that claim they weren't exposed and they had 16 significant burdens. That's the take-home message. 17 Q And in the Spirtas study, the 10 percent that 18 Spirtas says these people didn't appear to have any 19 exposure to the asbestos, those are the types of people 20 that Dr. Roggli studied and he found out that they 21 actually did? 22 Yes . 23 (Discussion off the record.) 24 MR. RUCKDESCHEL: That was distracting. 25 BY MR. RUCKDESCHEL: ESQUIRE DEPOSITION SERVICES (415) 288-4280 ; Page 130 1 Q Now have you asked Ford or General Motors or 2 Chrysler how many prior claims they have had where 3 individuals with mesothelioma with no other known 4 exposure to asbestos brought lawsuits against them? 5 A I've not asked that question. 6 Q Why not? 7 MR. LANKFORD: Calls for speculation. 8 JUDGE KLINE: If he knows why not. 9 BY MR. RUCKDESCHEL: 10 Q No, I'm just asking why he hasn't asked. 11 A Well, what you're asking is why haven't I asked 12 them to do some sort of mini epi study to refute what 13 Lemen and Engleman claim must be occurring because they 14 think that there are too many meso cases for the number i 15 of brake mechanics that are alive. And if you add up 16 all the plaintiffs' cases they believe that the math 17 doesn't work. That's really what you're asking me. 18 Q Well, that is sort of the substance of what 19 I'm getting at, is one could go back and look through 20 the materials that were collected in litigation from 21 prior cases. 22 A That's right, you could. 23 Q And there's recent paper that was published 24 regarding household mesothelioma where the author, 25 Albert Miller -- and I'll mark it as Exhibit 8 since ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 we're talking about it. Page 131 2 (Plaintiffs' Exhibit 8 was marked for 3. identification by the court reporter.) 4 BY MR. RUCKDESCHEL: 5 Q Are you familiar with this paper? 6 A I haven't read it yet. 7 Q Dr. Miller in this paper went back and looked 8 at 32 household exposure mesothelioma cases that he 9 collected from the historical archives of plaintiff law 10 firms that are involved in the asbestos litigation. 11 And one of the -- and I'm not asking you to opine on 12 this but one of the things that Dr. Miller suggests is 13 that records from litigation may be a valuable 14 repository of information about medical conditions. 15 A Mm-hmm. 16 Q Would you agree that that's a plausible, that 17 that's true, that they could be a valuable source of 18 information? 19 A I wouldn't rule it out. 20 Q Okay. And in fact in cases like this case 21 there is substantial investigation into the 22 occupational exposure history of the plaintiff? 23 MR. LANKFORD: Calls for speculation. 24 THE WITNESS: Is your question in cases like 25 this where there is a lot of historical information that ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 it might be useful to make a log of these kind of Page 132 2 people? 3 BY MR. RUCKDESCHEL: 4 Q Sure. 5 A It might be useful to do that. 6 Q And you haven't done it? 7 A No, I haven't done it. 8 Q And you would agree there are three broad 9 possibilities of what could happen with a systemic 10 review. One, it could provide support for the position 11 of Ford, General Motors and Chrysler that their 12 products don't cause asbestos disease. 13 A It's a possible outcome. 14 Q One is it would refute that position and 15 provide evidence that their products do cause asbestos j 16 disease? 17 A If you were to have only known exposure to dust 18 from their products that would be one possible outcome. 19 Q And the middle outcome is we could be left in 20 the state we are, which is the evidence is equivocal as 21 to whether, as to whether the products manufactured by 22 Ford, General Motors and Chrysler are capable of 23 causing asbestos disease in individuals? 24 MR. LANKFORD: Let me object. 25 THE WITNESS: I don't believe that's equivocal. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 But I understand there is disagreement among the Page 133 2 experts. 3 BY MR. RUCKDESCHEL: 4 Q If review of the historical files of Ford, 5 General Motors and Chrysler and their lawyers revealed 6 200 mesothelioma cases, automobile mechanics that had 7 worked for at least four years as automobile mechanics 8 and had no other known occupational exposures or other 9 exposures to asbestos, would that be a significant 10 scientific consideration for you? 11 MR. LANKFORD: Objection, incomplete, vague, 12 ambiguous, overbroad. To the extent you're trying to 13 pose a hypothetical it's incomplete. 14 THE WITNESS: If you could count on the 15 exposure histories to be accurate, it would be a 16 potentially useful exercise. The real question here is, 17 is that issue of exposure. 18 I've had cases where people swore they were 19 only exposed as brake mechanics. That's all they were 20 , ever exposed to. And then a week before trial I find 21 out that they ground crocidolite, which I didn't even 22 know was done in the United States, and they did it for 23 a long time. 24 And so here, here's a real good example of why 25 the exposure history has to be exceedingly good and why ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 134 1 it's not inconsistent, my experience in litigation, with 2 Roggli's experience that something, these studies have 3 to be done carefully if they can be done at all. 4 Q Are you referring to the Hicks case in Texas? 5 A I am. 6 Q And in the Hicks case, the discovery process 7 in the litigation, the lawsuit that was involved, 8 revealed this other exposure of Mr. Hicks? 9 A Yes. 10 Q Would you agree that in this case, in the 11 Mallia case, no other such exposures have been 12 revealed? 13 MR. LANKFORD: Objection, calls for 14 speculation. 15 BY MR. RUCKDESCHEL: 16 Q To your knowledge? 17 MR. LANKFORD: Calls for speculation and he's 18 not being -- 19 JUDGE KLINE: Well, if he has any knowledge. 20 Do you have any knowledge of that? 21 MR. LANKFORD: And just for the record, he's 22 not being offered on the issue of alternative exposures. 23 THE WITNESS: Do you want me to answer, Judge? 24 JUDGE KLINE: Yeah, go ahead and if you have 25 some knowledge. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 135 1 THE WITNESS: I'm not aware of significant 2 alternative exposure. 3 BY MR. RUCKDESCHEL: 4 Q And the adversarial process of these lawsuits 5 is such that in the Hicks case this previously 6 undisclosed exposure was revealed prior to trial? 7 MR. LANKFORD: Objection, -- what is the 8 question if I could have it read back? 9 JUDGE KLINE: You want to repeat the question? 10 BY MR. RUCKDESCHEL: 11 Q Sure. I'll repeat it. In the Hicks case, the 12 adversarial process and the discovery process of the 13 litigation revealed this previously unknown crocidolite 14 exposure before trial, correct? 15 A Yes. 16 Q And in fact the information that you receive 17 in cases like this case, and I've read your report, and 18 it lists all the information that you've gotten, is 19 more comprehensive than the information that, for 20 example, Ms. Teta had in her study from the 1980s 21 regarding the subjects of that study? 22 A It's an apples-and-oranges comparison. I can't 23 answer your question that way. 24 MR. RUCKDESCHEL: Okay. Let's take our lunch 25 break. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 137 1 (Lunch recess taken 12:25 p.m. to 1:06 p.m.) 2 THE VIDEOGRAPHER: Back on the record. The 3 time is 1:06. 4 (Plaintiffs' Exhibit 9 was marked for 5 identification by the court reporter.) 6 BY MR. RUCKDESCHEL: 7 Q Dr. Paustenbach, before we get into the 8 subj ect of money I'd like to show you what I've marked ; i 9 as Exhibit 9 a copy of the written contract between 10 McLaren/Hart and Pacific Gas & Electric, specifically h 11 ChemRisk, a division of McLaren/Hart, and Pacific Gas & , 12 Electric. Is this the retainer related to the work ; 13 that ChemRisk did on chromium for PG&E? ! 14 A Yes, it looks like it. j 15 Q And is that the work that led to what is known 16 as the Erin Brockovich case? 17 A Yes. 18 Q Is there any such contact to your knowledge j 19 between Exponent and Ford, General Motors and Chrysler I 20 or ChemRisk and Ford, General Motors and Chrysler? 21 A There is not one between ChemRisk and Ford, 22 General Motors or Chrysler. And I can't speak to 23 Exponent. , 24 Q Is there any reason contract between any 25 entity and Ford, General Motors and Chrysler that ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 covers the work performed by ChemRisk? Page 138 2 A I hear that as the same question as you just 3 asked me. 4 Q What I'm asking is, there is no contract 5 between any entity and Ford, General Motors and 6 Chrysler, written contract, that covers your work? 7 A That's right. 8 Q Okay. I'd like to ask you some questions 9 about money. You own ChemRisk? 10 A Yes. 11 Q You're entitled to receive any profits from 12 ChemRisk? 13 A Yes. 14 Q What percentage of the work of ChemRisk is 15 related to litigation? 16 A It varies on the month and since we've been in 17 business. 18 Q In July of 2004 you gave a deposition in a 19 case pending in Baltimore taken by Mr. Dumler. You 20 were in Maine at the time. I believe it was taken by 21 phone. 22 In that deposition you testified that during 23 your time at Exponent before you came to ChemRisk the 24 percentage of your work that was related to litigation 25 went from approximately 50 percent when you started at ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Exponent to a mere 75 percent when you left? 2 A Mm-hmm. ] Page 139 j j j 3 Q Is that a fair statement as to the percentage ] 4 of work related to litigation that you did at Exponent? j 5 A Only for the time period I discussed. 6 Q Okay. And I'm talking about at Exponent. 1 7 A No, no, I'm talking about the time that you 8 just answered about, it was I think the last six months 9 at the time of the deposition that was an accurate 10 statement. J 11 Q Okay. At the end of your time at Exponent it 12 was approximately 75 percent? 13 A If that's what I said that's correct. i 14 Q Okay. And can you give me an historical 1 15 perspective with regard to ChemRisk's work, not just 16 your work at ChemRisk but ChemRisk the company's work ; 17 and litigation. In other words, when you began in 2003 18 what percentage was related to litigation, and if it's 19 changed can you tell me how it's changed? ! 20 A - Well, I think I was asked some variation of 21 this question last week even. It started as the, I'm : 22 going to say somewhere between 25 and 60 percent, and 23 it's probably remained in the 25 to 60 percent range 24 for the firm over the last two years of the firm. ; 25 Q And it varies month by month? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 140 1 A * Yeah, it could even be a little more than that 2 but it varies month by month. 3 Q Is it possible for you to approximate for me 4 over the entire time, the two years or so that ChemRisk 5 has been in operation, what the aggregate percentage 6 would be? I understand it varies month by month. Can 7 you tell me for the two years it's been about 50, it's 8 been about 60? 9 A Well, it really, as I said before, it depends 10 on what you call litigation. You know, sometimes you 11 get retained thinking, the client thinks they may 12 someday get sued. Sometimes they have been sued. 13 Sometimes they haven't been sued and they are concerned 14 about it. So it depends what you mean by that. 15 I assume you mean the client has actually been 16 sued.and is looking to build its defense. 17 Q Let's start with that. 18 MR. LANKFORD: Your question is? 19 BY MR. RUCKDESCHEL: 20 Q My question is what percentage of the firm's 21 . time is related to litigation as you've just defined 22 it? 23 MR. LANKFORD: Over what period, and any 24 litigation? 25 BY MR. RUCKDESCHEL: ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q That's correct. 2 A Over the last two years -- Page 141 3 Q Yeah. . 4 A -- which is as long as the company has been in 5 existence in its current form I would say somewhere 6 between 33 and 70 percent. 7 Q Is there a median, a mean that you can do, is 1 1 \ j : 8 there an average starting that time period that you | 9 can -- 10 A .I can't think of any good reason to be any more $ : 11 precise than that. 12 Q Well, I don't know whether I can accept that | 13 as an answer. And is it possible, whether you want to j 14 do it or not, or whether you can think of a gooc reason 15 to do it or not, is it possible for you to give me that 16 approximation? 17 MR. LANKFORD: What approximation? 18 MR. RUCKDESCHEL: He's just given me a range. 19 MR. LANKFORD: Right. 20 MR. RUCKDESCHEL: I've asked him -- the range 21 is I believe on a month-to-month basis, it's between a 22 third and 70 percent. 23 MR. LANKFORD: Mm-hmm. 24 BY MR RUCKDESCHEL: 25 Q Is that fair? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 142 j 1 A On a month-to-month basis I think it's between 1 2 a third and 70 percent. 3 Q And.what I'm asking is, we'll start with can j ] 4 you, can you approximate in the aggregate what the J 5 percentage is? 6 A I'd say in the last two years a good estimate | j 7 would be about half. 8 Q Okay. And that's related to litigation where 9 a company comes to you and says we are in or about to s a J 1 | 10 be in litigation and we want you to help us prepare our ! 11 defense. | 12 A Yes. ; 13 Q Now if we were to define litigation more : 14 broadly so that it was involving work such as writing | 15 the papers that you wrote for General Motors and Ford, ; 16 does that number go up or were you including that type 17 of work- in the earlier definition? ; 18 MR. LANKFORD: Well, objection, 19 mischaracterizes his testimony with respect to the 20 nature of his work in doing these papers. : 21 JUDGE KLINE: Why don't we leave the question j 22 as does that number go up, forget the last half of it. ; 23 THE WITNESS: Writing would probably not take i 24 it up. Research might increase it. 25 BY MR. RUCKDESCHEL: 1 ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Okay. If we add in what I'll call Page 143 2 litigation-related research how far up does the number 3 go? 4 A For the sake of discussion I'll say 60 to 5 65 percent. 6 Q Okay. 7 A And that would include other litigation-related 8 issues probably. 9 Q What are the other types of litigation-related 10 issues that you've just referred to? 11 A If somebody said to me they wanted to 12 understand their product because they wanted to have a 13 defense in the event of unwarranted litigation, then I 14 would, I would put that in this category. 15 Q How would you help them understand the 16 product? 17 A Let's say someone wanted to know how much 18 aluminum was generated when it went through an aluminum 19 shredder because they were fearful that some company, 20 or no, some plaintiff's lawyer said I think the people 21 who crush these cans are overexposed to aluminum dust. 22 Okay, and if that was to occur they might say we're so 23 concerned about that. Would you do a simulation study 24 and tell us what the actual dose is of people who crush 25 these cans. And so if I did that I would put that in ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 that kind of category. That's the kind of thing that Page 144 2 we might be asked to do if the people who make this can 3 were concerned about getting sued some day about that. 4 Q Okay. I'd like to look at the other 35 to 5 40 percent of ChemRisk's business over the last two 6 years. 7 A Mm-hmm. 8 Q What types of activities make up that 35 to 9 40 percent? 10 A You're probably not entitled to it but I'll go 11 ahead and help you along anyway. Some of it is, a 12 large fraction of that would be related to our work for 13 the government in doing dose reconstruction work at the 14 nuclear arsenals. 15 Q What is a dose reconstruction? 16 A That's where you may or may not have much 17 exposure information on a person over their lifetime, 18 but someone wants to know approximately what they were 19 exposed to. So by combining modeling data plus their 20 historical data, plus what you gather from the 21 literature and your professional experiences, you go 22 back and do your best at reconstructing their lifetime 23 of exposure in quantitating their risk. 24 And in this case, the federal government has 25 funded studies to examine the likely exposure of people ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 who live around the seven or eight different nuclear Page 145 2 arsenals as they are called that, were built during 3 the, right after World War II to make or handle nuclear 4 products and weapons. So we try to do the work, 5 estimate exposure of those in the community to either 6 radionuclides or chemicals. 7 Q Can a dose reconstruction be done with regard i 8 to asbestos exposure? 9 A Usually. 10 Q Have you done so in the Mallia case? 11 A . I didn't do one in the Mallia case. 12 Q Is there information that you are missing that 13 you would need in order to do so? 14 A Well, it depends on what level of precision you 15 wanted to estimate exposure. I feel like I could get 16 reasonably close if everything I had was known to be 17 accurate. 18 Q If you were to assume that Mr. Mallia's 19 testimony was accurate within the parameters of it, you 20 would be able to do so? 21 A I think I could get very close. 22 Q In that type of situation would you rely upon 23 the known information regarding Mr. Mallia or would you 24 do a Monte Carlo-type analysis? 25 A Depends how you wanted to see the information ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 146 1 presented. You could do it as a point estimate or you 2 could do it as a Monte Carlo. The Monte Carlo would 3 give you a range and perhaps a probability that certain 4 values would not be exceeded. 5 Q When you have historical information regarding 6 the individual, is it appropriate to use a Monte Carlo 7 analysis? 8 A I don't think there ismanybenefits to it if 9 you have avery good description. It's only, it's 10 really better when you're talking about populations. 11 Q And that's something you discussed with 12 Mr. Praglin last month in the Aguayo case? 13 A Yeah. Your memory is very good, Counsel. For 14 all the depositions and testimony you've read and not 15 using notes your memory is outstanding. 16 Q I don't sleep much. 17 A That's apparent. 18 Q Do you have the level of information in this 19 case, the Mallia case, such that it would be in your 20 professional judgment inappropriate to do a Monte 21 Carlo-type analysis with regard to any dose 22 reconstruction that was performed? 23 A I wouldn't want to generalize and say 24 inappropriate. Sometimes it's worth the effort, 25 sometimes it's not. When you have a very thorough case ESQUIRE DEPOSmON SERVICES (415) 288-4280 Page 147 1 history, as I told Mr. Praglin, it's not that helpful. 2 You can do it. 3 Q Sure. 4 A It can provide information. It's a totally 5 different situation Mr. Praglin faced. He's got a 6 whole other series of reasons why Monte Carlo is not 7 helpful for him. 8 Q I'm sure. I don't want to talk to you about 9 that. Now with regard to Monte Carlo analysis, it 10 provides a range of probabilities? Can you explain it 11 to me in layman's terms? 12 A What you do is you take the, each of the 13 factors in calculating dose or in estimating dose, and 14 for each one which you have some level of variability, 15 let's say you believe, for instance, that brake 16 mechanics' time-weighted average exposures for a 17 certain decade might be between .01 and .06 let's say, 18 then you can put a weighting on each of those, either 19 through data or through professional judgment. And you 20 can derive distributions for each of the exposure 21 factors, and then using the Monte Carlo technique 22 combine them and become up with one single distribution 23 for the value that you're trying to estimate. 24 You could do it and it would be informative. 25 As I told Mr. Praglin, when you have, especially in his ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 case, quite a bit of exposure data, then the results Page 148 . 2 aren't going to be much different either through a 3 point estimate than through Monte Carlo. When you're 4 talking about populations of people then it's a lot 5 more informative. ' 6 Q And that's because within a given population j 7 there is variation in, for example, dose? 8 A There is often population questions as well. I 9 People want to know is this town or is this group of I 10 people likely to have anyone that is over exposed or i 11 exposed at a level that is likely to be serious. 12 Again, you can do Monte Carlo on an individual. : 13 I don't have any problem with it. But it's very i 14 helpful when you're talking about populations. : 15 Q And if we look at individuals, though, if we 16 look at a group of let's say a hundred brake mechanics ! 17 from the 1960s. i 18 A Right. j 19 'Q The individual exposures of those mechanics 20 will fall within a range? . ! 21 A Right. 22 Q But the individual exposures will be different 23 for each individual? ; 24 A By definition. ; 25 Q Right. And some will fall at the high end of i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 that range, some will fall at the low end of that Page 149 2 range, but we would expect that the majority will fall 3 somewhere in the middle? 4 A Sure. 5 Q And the amount of asbestos dust that a brake 6 mechanic in, for example, the 1960s would be exposed to 7 would be dependent on the types of work practices they 8 used in the workplace? 9 A Sure. 10 Q And that would include the procedures that 11 they performed on brakes, the number of procedures they 12 performed, and any control methods that they used with 13 regard to the release of dust? 14 A True. 15 Q So tolook at any individual and to determine 16 that individual's dose, we would want to know whether 17 they opened the box or whether somebody in the part's 18 department, for example, opened the box and brought the 19 brake shoes to them? 20 A If you wanted that level of precision you'd 21 have to go through each of those steps. 22 Q And we walked through each of the steps of 23 potential exposures that you and I discussed earlier? 24 A That's right. 25 Q And for each -- ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 150 1 A And you'd have to weight it by year and correct 2 it for the amount of asbestos in the brake and whether 3 or not the brake had now become bonded rather than 4 riveted and whether it was prebeveled or not 5 prebeveled, and then you would couple that with the 6 individual's testimony about their personal work 7 practices, and at the end you'd have some estimate. 8 Q If we look at each of those activity, for 9 example, some mechanics beveled edges all the time, 10 some mechanics beveled edges some of the time, and some 11 mechanics never beveled edges? 12 A That's probably not true but you can make that 13 assumption if you want. I have no reason to believe 14 that people always beveled or people always sanded and 15 it's especially true depending on the time in history. 16 Beveled brakes, it just wasn't that common in the more 17 recent era. 18 For example, and sanding is really almost 19 unheard of except with an existing brake. 20 Q To remove the glaze? 21 A That's right. 22 Q Have you in your work for General Motors, Ford 23 and Chrysler come across other mechanics who described 24 roughing up the surface of a new brake with sandpaper 25 or emery cloth like Mr. Mallia described? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A After he's taken it out of the box? Page 151 2 Q Yes. 3 A I have not. 4 Q Okay. 5 A Not experienced mechanics. I've seen it 6 reported by plaintiffs but talking to mechanics in the 7 real word none have said that to me. 8 Q Of the cases you've seen against General 9 Motors, Ford and Chrysler have individuals in those 10 cases reported what Mr. Mallia reports, with regard to 11 roughing up the surface of brakes with emery cloth or 12 sandpaper, new brakes? 13 A It's highly unusual. 14 Q You've seen it, though? 15 A I think I've seen it on a couple occasions but 16 it's highly unusual. 17 Q And that may be because it didn't happen, or 18 it may be because those mechanics fall within the range 19 of individuals who perform that job? 20 A Yeah. I thought that's where you're going. I 21 don't think so. I don't think that's what's happening. 22 You know, people normally don't do extra work if it's 23 not needed. And it's plausible Mr. Mallia was told 24 that this was a useful practice and he learned from one 25 person who happened to believe in it. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 152 1 Like I said, it's never called for, it's never 2 discussed in any manual. And the mechanics I've talked 3 to say the only time they've ever done it is when there 4 was glaze on the brake. It would not be something you 5 do right away. 6 Q Do you believe Mr. Mallia was being 7 untruthful? 8 A No, I always believe the witness is telling the 9 truth. . ii jl 10 Q Okay. We digressed a little bit. Let's talk 11 about money. You started working in the asbestos 12 litigation in approximately mid 2001; is that correct? 13 A You know, you've asked me this before. I've 14 tried to be helpful and move this along. If you want 15 me to be specific I'd have to back and look at my 16 records. But if you me to say, if you want to 17 stipulate, yeah, I've testified to this before and it 18 was around 2001 I'll accept that. 19 Q You have said before it was around July of 20 2001 and I'm trying to give us a marker. 21 A And that sounds about right. 22 Q All right. 23 A But again if you want to be specific I'd have 24 to go back and look. 25 Q I'm not looking for, that's not the basis of ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 this. I'm trying to give us a start point. Page 153 2 A Okay. 3 Q Since that time can you tell me how much the 4 billings for your work and the work of your 5 subordinates has been to General Motors and Ford? 6 A No. 7 Q Can you approximate it? 8 A Not since that time because I worked at 9 Exponent. There would be whole other groups that I 10 wouldn't even have a clue as to what they billed. 11 Q You've done this before and because you 12 haven't done with it me I would like to do it now. I 13 would like to walk through sort of different aspects of 14 the work that you've done where you've given 15 approximations of how much the billings were. 16 The first start is the first six months or so 17 where you were getting up to speed on the asbestos and 18 brake issues, scientific issues. And I believe you 19 estimated in the past that that range between 2 and 20 $500,000. 21 A Is your question, we have to be clear here, is 22 it the group or is it me personally that is billing? 23 Q That is on an interesting question. What I'm 24 asking about here is the billings for Exponent. 25 A I doubt that I testified to that. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Okay. Page 154 2 A If you have it I'd like to look at it. 3 Q No, I'm asking whether that's accurate. 4 A The way I heard the question is I had testified 5 to this before with respect to the first six months of 6 Exponent's billing. And I'm telling you I'm pretty 7 sure I would not have done that. 8 Q Okay. What about for your billings? If the 2 9 to $500,000 range you gave Jonathan Smith George a fair 10 approximation of the amount of billings for your 11 getting up to speed on the issues? 12 MR. LANKFORD: If you're going to start asking 13 him about whether testimony he's given in prior cases is 14 accurate without giving him the question, etc., then, 15 you know, I'm going to object to that line of 16 questioning without reviewing the transcript. 17 MR. RUCKDESCHEL: Okay. Let's do it ad omissio 18 then since you prefer it that way. 19 BY MR. RUCKDESCHEL: 20 Q Tell me how much the billings were to Ford, 21 General Motors and Chrysler for the six-month period 22 where you were educating yourself regarding asbestos 23 and brakes. 24 MR. LANKFORD: Objection, vague, overbroad. 25 JUDGE KLINE: Go ahead and respond. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 155 1 THE WITNESS: Yeah, I'd like to hear it again, 2 Judge. 3 (Record read.) 4 THE WITNESS: That's what I thought. Judge, 5 you see the problem with the question, Your Honor? 6 JUDGE KLINE: Say that again? 7 THE WITNESS: The problem with the question is 8 I can't tell if it's about me or the company Exponent. * 9 JUDGE KLINE: Okay, break it down. , 10 BY MR. RUCKDESCHEL: 11 Q Let's just do a total for Exponent. 12 A I wouldn't know. 13 Q Okay, now let's do for you. 14 A In the first six months of which I was, after I 15 was retained I would expect the billings to be in the 16 vicinity of 100,000, $200,000. 17 Q Okay. And that was the six-month period where 18 you were educating yourself regarding asbestos and 19 brakes? 20 A Well, that education continues to this today 21 day. But let's just say during that first six months 22 that's probably what my billings were. There was 23 probably more involved than just educating myself. You 24 know, there is also giving advice as to how it fits 25 into the occupational health arena. I mean I wouldn't ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 want to you characterize it as I went in the library, Page 156 2 came out six months later, billed them for half my time 3 and they sent me a check which I put in my pocket. 4 That's not what happened. 5 MR. RUCKDESCHEL: Okay, yeah. 6 MR. LANKFORD: And I'm going to object if the 7 court will allow or the judge will allow a standing 8 objection to this whole line of questioning as calling 9 for speculation. The responses being "probably" and 10 other qualifiers like that, I think it's clear it's 11 calling for speculation. But go ahead. 12 JUDGE KLINE: If he knows the answer, he can 13 tell him that he doesn't know or -- 14 MR. LANKFORD: Well, let me admonish the 15 witness that what you have to provide is information 16 that you shouldn't guess or speculate, but if you know 17 the answer then provide it. And my concern is when you 18 say "probably," and "I would think," my concern is that 19 you may be guessing or speculating. If you're not, 20 fine, provide the response. If you are, then please 21 respond as the court stated. If you don't know the 22 answer, you don't know. 23 MR. RUCKDESCHEL: Your Honor, I would ask you 24 admonish counsel to cease the incessant speaking 25 objections. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 157 1 JUDGE KLINE: Okay. Folks, as far as I'm 2 concerned this witness is going to respond truthfully to 3 all of the questions, ask him the question and he will 4 respond if he knows or he's guessing or whatever he's 5 doing. If he knows the answer then he's required to 6 give it. 7 BY MR. RUCKDESCHEL: 8 Q Understanding that your education continues to 9 this day, we have referred earlier in this deposition 10 to the six months or so where you did your initial 11 education in asbestos and brakes, and I'm asking you 12 what your estimation is for billings during that time 13 period, and you're answer is between 100 and 200,000? 14 A That's correct. 15 Q Okay. 16 A That's my best estimate. 17 MR. LANKFORD: And let me object, it's 18 misstating the testimony. 19 MR. RUCKDESCHEL: Counsel, that's clearly not 20 what is happening here. Because the witness just said 21 that that was correct. When you say it's misstating the 22 testimony, that's just a ridulous statement to make when 23 the witness has said it was an accurate statement. 24 JUDGE KLINE: It was estimate. 25 MR. LANKFORD: You can read it back but the ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 158 1 first response said "probably." So you're dropping off 2 those qualifiers. 3 MR. RUCKDESCHEL: Are you suggesting 4 Dr. Paustenbach was wrong when he answered the question, 5 Counsel? 6 MR. LANKFORD: No, but clearly by the nature of 7 his response, you're asking about four years ago and the 8 nature of his response it was clear he was trying to 9 provide you an answer, some type of estimate and said 10 "probably," etc., and now you're dropping off the 11 "probablies" and things to that effect, so... 12 JUDGE KLINE: Thank you, very much. 13 Mr. Witness, you are required to truthfully answer every 14 the question that you know the answer to. You are not 15 required to answer questions you don't know the answer 16 to. 17 BY MR. RUCKDESCHEL: 18 Q During the next six-month period we talked 19 about earlier today, Dr. Paustenbach, when you were 20 preparing yourself for potential testimony in these 21 cases, can you provide for me an estimation of the 22 billings during that six-month period for your work? 23 A I can't. Cannot. 24 Q And can you provide for me, sir, an estimation 25 of the amount of time -- I'm sorry, the amount of money ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 that was billed for the research, writing and Page 159 2 publication of the 2003 paper? 3 A No. 4 Q Have you provided such estimates in the past? 5 A I gave estimates in the past about the total 6 amount of time I invested in those papers and that I 7 thought were spent on them. 8 Q Okay. Will youplease provide mewith that 9 estimate then, the total amount of time for the papers? 10 A As I testified before, I was having to -- it 1 5 11 was my best estimate, not based on having been 12 associated with the billings, okay? 13 Q Okay. 14 A So it's plausible if you were to discover the 15 billings would you have some different value because 16 you would have the actual answer. 17 Q Okay. 18 A And I think what Itestified to in the past is 19 somewhere between 80 to 120,000 for the first paper, 20 and upwards of 250,000 for the second paper. 21 Q All right. And for the five months or so in 22 2003 when ChemRisk was in business, can you tell me, 23 sir, what the total billings to Ford, General Motors 24 and Chrysler were approximately during that time 25 period? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 160 1 THE WITNESS: Your Honor, I assume he's 2 entitled to that information? 3 JUDGE KLINE: What's that? 4 THE WITNESS: What I'm billing these clients 5 for things outside this case? 6 JUDGE KLINE: What are we talking about? The 7 things - 8 THE WITNESS: He wants to know about my company 9 and what I bill clients that have nothing to do with 10 this case. 11 MR. RUCKDESCHEL: I confined the question to 12 Ford, General Motors and in 2003. Dr. Paustenbach has 13 provided estimates -- 14 THE WITNESS: Wait. But I was right, Counsel 15 about what I said. I just described properly to the 16 judge what your question was. 17 MR. RUCKDESCHEL: I'm providing His Honor with 18 context, Mr. Witness. 19 And Judge, Mr. Paustenbach has provided these 20 estimates as recently as last week, not in my record, 21 not in my deposition, and I'm entitled to that 22 information. It's in the public domain. 23 JUDGE KLINE: If it's in the public domain you 24 don't even have to ask it. 25 THE WITNESS: And, Your Honor -- ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 161 1 MR. RUCKDESCHEL: I don't have it on videotape, 2 Your Honor. 3 MR. LANKFORD: He was produced, the defendants 4 have produced in this case various billing records as 5 well to plaintiffs' counsel. 6 MR. RUCKDESCHEL: That is a grossly incomplete 7 statement, Your Honor. The General Motors bills that 8 were produced in this case are redacted almost 9 completely. And so counsel suggesting that somehow the 10 complete billing records have been produced by General 11 Motors in this case is an absolute misrepresentation. 12 MR. BELL: Those records show what the 13 companies paid for his work. So if you add it up you 14 have a fair representation. 15 MR. RUCKDESCHEL: They show only for 16 Dr. Paustenbach's work and not for the work of the 17 employees of his of which he's the hundred percent 18 owner. 19 MR. BELL: Of which the court only ordered 20 yesterday so we haven't had time to compile that. Take 21 a look at the order. 22 JUDGE KLINE: There's an order requires 23 requiring him to -- 24 THE WITNESS: Mr. Ruckdeschel? 25 MR. RUCKDESCHEL: Yes. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 162 1 THE WITNESS: We can move this right along. 2 There's no question that I testified to that answer last 3 week. But I was really kind of supporting what the 4 judge was saying. Why I are trying to impeach me on 5 something I just testified to last week? You already 6 have the transcript. 7 JUDGE KLINE: Please, we'll move this along if 8 you will answer the question and let your lawyers 9 participate in any argument. Move on to your next 10 question. 11 BY MR. RUCKDESCHEL: 12 Q Okay. Dr. Paustenbach, with regard to 13 billings of ChemRisk in 2003 to General Motors, Ford 14 and Chrysler during the five months of 2003, last week 15 you testified that you believe the billings totalled 16 between 200 and 400,000. Is that a fair approximation? 17 MR. LANKFORD: Can you provide him with the 18 transcript you have in front of you that you are 19 purportedly reading from? 20 MR. RUCKDESCHEL: I'm not purportedly reading 21 from it. I'm asking if that's a fair approximation. 22 JUDGE KLINE: If he remembers. Otherwise show 23 him what he says. 24 BY MR. RUCKDESCHEL: 25 Q Dr. Paustenbach, do you remember what you said ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 last week? Page 163 2 A Yes. 3 Q Okay. Did you say it was between 200 and 4 400,000? 5 A Yes. 6 Q And did you say for 2004 it was between 1 and j 7 2 million? '; 8 A Yes. ! 9 Q And for 2005 between 700 and 1.5 million, 10 700,000 and 1.5 million? j i 11 A I don't think so. 12 Q Okay. Let's see what you said because I want 13 it to be accurate. 14 A Let's take a break and get it. j 15 Q I've got it right here. 16 A While you're looking why don't I take a look as 17 well. 18 Q Great. I have it, Doctor. And your answer 1 19 was: 20 "I would say 700,000 to 1.5 million, 21 and of that virtually none has been paid 22 to the best of my knowledge." j 23 It's the blue circle there. ! 24 A Okay. ! 25 Q Is that a fair estimate of the billings this j ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 year? 2 MR. LANKFORD: Can I read it before he 3 responds? Okay. 4 BY MR. RUCKDESCHEL: 5 Q Is that a fair estimate. Doctor, of the 6 billings for this year? 7 A That was my estimate, yes. 8 Q Okay. Is that- your estimate today? I know 9 that was your estimate last week. Would you like to 10 change your estimate today? 11 A No.' 12 Q Okay. Now you've also performed work for 13 Amchem in the asbestos litigation, correct? 14 A Yes. 15. Q And you worked on a project that involved 16 mastics? 17 A Yes. . 18 Q And for the mastics project Amchem played 19 ChemRisk over a million dollars; is that correct? 20 A No, that's incorrect. 21 Q Okay. How much did Amchem pay ChemRisk for 22 the mastics project? 23 A Zero, because ChemRisk wasn't in business at 24 that point. 25 Q Did Amchem place Exponent? ' Page 164 ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A Yes. ' Page 165 2 Q Okay. And was that over a million? 3 A I think I testified it has been. 4 Q Okay. And was it? J 5 A Sure. There was a lot more work than j 6 litigation involved but the total bill to Exponent for 7 work related to Amchem was over a million dollars. j j 8 Q How much an over a million? j 9 A I'm not sure because there were guite few 1 10 witnesses involved. There was the polymer science ; 11 piece of the case and then there was the health risk 12 assessment piece to the case. 13 Q Do you know if it was over 2 million? 14 A No, I don't. 15 Q You've also performed work in the asbestos ! 16 litigation for Union Carbide? j 17 A Yes. 18 Q And that involved Bakelite? i 19 A Yes. ! 20 Q Can you estimate for me the total billing -- j 21 was that Exponent or ChemRisk? : 22 A That was Exponent. 23 Q Can you estimate for me the total billings for 24 the Bakelite project? 25 A I can't, no. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Okay, how about for your work? Page 166 2 A That one, I don't know what I've said 3 previously. I would stand behind whatever I said 4 previously, but would I say it was probably in the 5 $250,000 or so range. It could be plus or minus a 6 hundred thousand. | 7 ' But the reason it's very hard to answer that 8 question, of course, is you have research and then 9 there is litigation prep and then there is litigation. 10 And I understand you're just looking for a big number. i 1 | I i j 11 But I don't really know how to answer the question any ; 12 better than I have. I 13 Q And McLaren/Hart ChemRisk in the New Jersey j 14 chromium clients the billings totaled between 7 and ; 15 $10 million? 1 16 A Over the course of a decade I think that's 17 about right. !j 18 . Q Okay. And for PG&E in the Anderson case, the i 19 Erin Brockovich case, the billings were a million and a 20 half or so? 21 A At least, yes. ; jt 22 Q Do you have an idea of how much more than a ; 23 million and a half it would have been? j 24 A No, but I think I said before that's about i 25 where it was and I published that in my last paper. ' ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Do you have any approximation, Page 167 2 Dr. Paustenbach, of the total amount of money that you ; 3 billed for your, time in litigation-related services in 4 the last 20 years as you've been doing this type of ! 5 work? 6 A Well, as you know, since you've read so many of ; 7 my depositions, I didn't do much deposition and 18 courtroom work until the last four or five years. 9 tried to stay away from it, in fact. So I'm not really 10 able to answer your question. i \ 4 11 Q Okay. What was your position at Exponent? 12 A I was a Vice President. 13 Q And were you a principal of Exponent? 14 A Yes, sir. 15 Q What did that mean? 16 A Principal means you are responsible for 17 overseeing projects, for being a principal client 18 interface, and for giving advice I guess to the 19 management of the company. 20 Q Was there a division you worked in at 21 Exponent ? 22 A Yes . 23 Q Were you the head of that division? 24 A Yes . 25 Q How many individuals worked under you? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 168 1 . A It was between 100 and a 150 depending on the 2 different time during my time with them. 3 -Q And were you directly or indirectly the 4 supervisor of those individuals? 5 A Well, you are indirectly for all of them but j 6 directly for your direct reports which I think were ; 7 between six and ten. 8 Q You were the general of that division? 9 A I was. 10 Q And your compensation at Exponent involved a 11 salary? 12 A Correct. 13 Q A discretionary bonus? 14 A Correct. 15 Q Was there any other compensation that you 16 received while at Exponent? 17 A You can receive stock options. It was a 18 publicly -traded company. 19 Q And you received stock options? 20 A I did. 21 Q Can you estimate for me the value of the stock 22 options that you received, Dr. Paustenbach? 23 MR. LANKFORD: Let me object on privacy 24 grounds. 25 THE WITNESS: To the best of my knowledge I ' ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 haven't had to talk about that previously. Page 169 2 BY MR. RUCKDESCHEL: 3 Q When you were at Exponent it was a 4 publicly-traded company? 5 A Yes, sir. 6 Q Individuals like yourself who own substantial 7 amounts of stock in publicly-traded companies are 8 required to file reports with the SEC when they have 9 transactions related to those stocks? 10 A That's correct. 11 Q Okay. And you filed such reports? 12 A I did. 13 Q Are they in the public domain? 14 A Yes, they are. 15 Q Would you estimate for me, sir, the value of 16 the stock options you received while at Exponent? 17 MR. LANKFORD: At what point in time? 18 MR. RUCKDESCHEL: During the four years he was 19 at Exponent. 20 MR. LANKFORD: No, what point do you want to 21 value them, when they were received? 22 BY MR. RUCKDESCHEL: 23 Q When they were exercised. 24 A Well, you're not entitled to. You're welcome j 25 to look up whatever you like in the public domain but I i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 know you're not entitled to that information. Page 170 2 Q Is it fair to say that you made over a half 3 million dollars exercising options granted to you as 4 compensation at Exponent and selling them? 5 MR. LANKFORD: Objection, privacy. 6 MR. BELL: Vague. 7 BY MR. RUCKDESCHEL: ' 8 Q Is that information in the public domain, 9 Doctor? : 11 ] 1 10 THE WITNESS: I don't recall if it is. 11 BY MR. RUCKDESCHEL: 12 Q Okay. Has the way that you've done business 13 since can starting with ChemRisk McLaren/Hart, 14 continuing to Exponent and now with ChemRisk as it 15 exists today, has the general business model been the 16 same? 17 MR. LANKFORD: Objection, vague. 18 JUDGE KLINE: If he can answer it, go ahead and 19 answer it. 20 THE WITNESS: I would say in large measure it 21 has. 22 BY MR. RUCKDESCHEL: 23 Q And does the work that you performed for, that 24 you have performed for General Motors, Ford and 25 Chrysler follow that business model? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 171 1 MR. LANKFORD: Objection, same objection. 2 JUDGE KLINE: In response, go ahead. 3 . THE WITNESS: The term "business model" is a . 4 little vague to me. So I better tell you what I meant ; 5 when I answered the last question. ! 6 By business model I would say that the model i 7 that I developed and hopefully supported over the years 8 was one of trying to bring as much science to . 9 environmental problem solving as one can bring. j 10 And rather than rely exclusively on the ' 11 literature I've wanted to contribute to the literature, ; 12 and rather than just write reports that get put away in 13 a file cabinet I like putting them in the public domain 14 so that everyone can draw with them. 15 As you know of my discussions with Praglin, I'm 16 proud that history. So from that standpoint, from a i 17 business model standpoint, to the extent that the ; 18 business model hiring as bright a people as I can get 19 and then get them to do applied research, that's the 20 business model. I believe in organic growth and that's 21 probably my trademark. ! j 22 Q Okay. That's not what I meant by business 23 model. 24 A I guess we talked by each other then. 25 Q It's good you clarified. You were hired by ! ! : ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 172 1 General Motors and Ford and Chrysler to work with them 2 in connection with asbestos claims arising from 3 exposure to brake and clutch products? 4 A Well, I'm struggling with it being a 5 nonsequitur. Do you want to flush out the last 6 question and start over? j 7 Q Sure. j 8 A Okay. 9 Q I'm starting over so we're on the same page. 10 A Okay. : 11 Q I want to talk about what I perceive the 12 business model to be. 13 A Okay. 14 Q You got hired by General Motors and Ford and 15 Chrysler p 16 A Yes. : 17 Q And you educated yourself on asbestos? 18 A Yes. i 19 Q You hadn't done so before in your professional | 20 career? 21 A Not on brake dust, that's right. ; 22 Q And not on asbestos? j 23 A That's fair. S 24 Q All right. So you educated yourself and then 25 you wrote some papers? ; ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A Correct. Page 173 2 Q And during that time and subsequently you've 3 provided expert witness testimony to General Motors and 4 Ford. 5 A That' true. 6 Q And Chrysler? 7 A That's true. ; 8 Q And during that time with respect to your 9 testimony you provided outlines of questions to lawyers 10 for General Motors, Ford and Chrysler about ways that 11 they can ask you questions at trial that will elicit 12 your testimony effectively? 13 A That's some variation of what I testified to 14 last week. I wouldn't have said it quite that way. 15 But let's just say I have given them help as to how to 16 get the science issues out on the table. 17 Q You've educated them some? 18 A Sure. ' 19 Q And you've done that with other toxic 20 substances as well? 21 A I've followed a model of trying to learn about 22 the substance, share what I've learned in the published 23 literature, and if they ask, testify about it. From 24 that standpoint if that's a business model then that's 25 what I've done. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 174 1 Q You've been contacted by companies or lawyers 2 for companies who have either regulatory or litigation 3 difficulties? 4 A Quite often. 5 Q And oftentimes you in your professional career 6 haven't worked with those substances before? 7 A Sure. 8 Q Andyou've educated yourself, like you did in 9 these case, with regard to those substances? 10 A Yes. 11 Q You've published withregard to those 12 substances? 13 A Yes. 14 Q You provided the lawyerswith assistance on 15 how to ask you questions effectively at trial? 16 A That's again a little bit of a difference spin 17 than what I just said but -- 18 Q Is it accurate? 19 A What is accurate is what I said before. I 20 certainly try to teach the lawyers, you know, what the 21 issues are in the case that they ask me about them. 22 Q And you've then provided expert testimony 23 regarding those subjects? 24 A That's true. 25 Q And in providing that testimony you relied I ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 upon the things you've published in those topics? Page 175 2 A And what other people have published. 3 Q . I understand. Can you tell me the substances 4 where you followed that progression of business 5 activity ? There's asbestos. 6 A Well, I find the business activity issue to be 1 1 7 a bit of a pejorative. 8 Q I'm not meaning it that way. You're in the 9 service business; is that correct? 10 A That's true. 11 Q Okay. You have a company, it's a business, 12 right? 13 A It's a business. 14 Q I'm not using pejoratively. And the business 15 does business? 16 A The business does business. 17 Q And that business -- 18 A That business is solving problems and to the 19 extent that we have to go to trial to talk about how we 20 solve the problem, then we do it. 21 Q Okay. Now I want to know what other 22 substances you followed that same sort of progression 23 with as you did with asbestos. There is asbestos I 24 believe Dioxin as well? 25 A Sure. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Benzene? Page 176 2 A Benzene, hexavalent chromium. 3 Q Chromium 6, all right. 4 A Beryllium. 5 Q Formaldehyde? 6 A Perhaps. 7 Q What do you mean, perhaps? 8 A Your scenario involved testimony and I don't 9 think I've ever been asked to testify in trial about 10 formaldehyde. 11 Q Okay. Any other substances whereyou've gone 12 through this progression of educating yourself about 13 the substance, publishing, and then being available to 14 testify? 15 A I think glycol ethers would fit in that 16 category. Glycol ethers, G-L-Y-C-O-L, new word, 17 E-T-H-E-R-S. 18 Q Any others? 19 A I'd have to look at my CV. There may be a 20 couple others. 21 MR. RUCKDESCHEL: I may be able to help you. 22 Let me mark as Exhibit 10, I've marked as Exhibit 10 a 23 document with 37 potentially toxic substances that I 24 believe you perform professional work on in your career. 25 (Plaintiffs' Exhibit 10 was marked for ESQUIRE DEPOSITION SERVICES (415) 288-4280 > Page 177 1 identification by the court reporter.) 2 BY MR. RUCKDESCHEL: 3 Q , And what I'd ask you to do, Dr. Paustenbach, 4 is to make sure that this list is accurate, that you 5 have in fact worked, provided professional services 6 regarding these substances in your career, and then 7 we'll move on from there. 8 A By and large these are chemicals that I've 9 studied during my career. They don't all follow the 10 path that we discussed. I've done no substantial work 11 on DES. I've done a little bit of work on DES. 12 And just a little on nitroglycerin. 13 MR. LANKFORD: Counsel, can you -- 14 BY MR. RUCKDESCHEL: 15 Q Do you need a break, Doctor? 16 A The phosphorous was from a phosphorous industry 17 where the radionuclides were found. And except for 18 spellings I would say these are all chemicals that I 19 know something about. 20 MR. LANKFORD: If we could take maybe a 21 10-minute brake at 2:00 o'clock for a few minutes? 22 MR. RUCKDESCHEL: Absolutely. Can you give me 23 one more minute on this with the doctor, and I think 24 we'll be done with it. 25 MR. LANKFORD: Sure. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 BY MR. RUCKDESCHEL: Page 178 2 Q Doctor, I checked off on this asbestos, 3 benzene, beryllium, dioxin, formaldehyde and glycol 4 ethers for things that sort of fall into the pattern j 5 that we were discussing a minute ago. Are there other 6 substances that fall into that pattern? And if so you i 7 can just give me the number and I'll click them off. ; 8 A It's possible silica may one day fit. I would j 9 say that's all. 10 MR. RUCKDESCHEL: Okay. Let's take that break i 11 now for counsel. And people on the phone, we need ten ' 12 minutes. | 13 THE VIDEOGRAPHER: This concludes Tape 2. ' 14 Going off the record at 2:00. 15 (Discussion off the record.) ; ' , 16 JUDGE KLINE: . We,'re on the record. I had said ; 17 that I had a chance to think about it during this 18 deposition. The question is as I understand it was 19 whether or not the witness knew of any study that showed j 20 the asbestos release when a brake pad box was opened. j 21 And the witness said that there had been a 22 preliminary study, actually done in his office by > 23 someone employed in his office, that it had not been ; 24 determined if the study had a scientific basis, or 25 whether the study had any validity, and therefore the ' ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 witness said he would not rely upon it. Page 179 .2 So it was my impression that the work product 3 privilege and all of that stuff, the witness said he 4 would not rely upon it, he didn't consider it to be a 5 valid study at this point, then I would see no reason to 6 question him about it. 7 MR. LANKFORD: Thank you, Your Honor. 8 JUDGE KLINE: Fellows, it's been a pleasure. 9 I'm getting off and if you need me you can reach me at 10 one of these phones. You got the numbers, right? 11 MR. RUCKDESCHEL: Yes. 12 (Brief recess.) 13 THE VIDEOGRAPHER: Back on the record. Here 14 begins Tape 3. The time is 2:21. 15 (Plaintiffs' Exhibit 11 was marked for 16 identification by the court reporter.) 17 BY MR. RUCKDESCHEL: ' 18 Q Dr. Paustenbach, I just handed across to 19 counsel for Ford and General Motors what I've marked as 20 Exhibit 11. Would you identify that document for the 21 record, please, sir? 22 A It's a list of depositions or trial testimony 23 that I gave between August 18th, 2003 and 1990. 24 Q To the best of your knowledge is that 25 document, was that document complete and accurate at ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 the time that it was prepared? Page 180 2 A To the best of my knowledge. 3 Q. Thank you. I don't have any questions for you 4 about it. 5 (Plaintiffs' Exhibit 12 was marked for? 6 identification by the court reporter.) 7 BY MR. RUCKDESCHEL: 8 Q Doctor, I'm marking as Exhibit 12 a document 9 dated June 30th, 2005 a document we were provided after 10 the lunch break. Can you tell me what that document 11 is? 12 A It's what I call my case notes for this case. 13 Q Can you explain to me what the document 14 consisting of? 15 A It's a summary of what's contained in documents 16 given to me generally. It's summaries of depositions. 17 Q Did you prepare the document or did one of 18 your employees or some combination? 19 A Some combination. 20 MR. RUCKDESCHEL: Okay. Doctor, I'd like to 21 show you what I'll mark as Exhibit 13 which is a list of 22 companies that I believe you provided professional 23 services to during your career. 24 (Plaintiffs' Exhibit 13 was marked for 25 identification by the court reporter.) ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 BY MR. RUCKDESCHEL: Page 181 2 Q And I'd ask that you review Exhibit 13 and 3 tell me whether each of the companies listed here or 4 other organizations are in fact companies or 5 organizations you provided professional services to? 6 A It's a list you put together apparently. 7 Q I put it together based on copies of your CV 8 that are historical, your testimony to Mr. Dumler in 9 the July 2004 case, and a deposition in February given 10 to Mr. Hartley. And I believe it's accurate but I just i 11 want you to take a look. 12 A I've done work for all these people except one 13 I don't recognize. 14 Q Can you tell me what that one is? 15 A No. 63, Montgomery County Growth. 16 Q Okay. 17 A It doesn't look familiar. 18 Q Okay. Let me tell you where that came from, 19 that came from an old deposition I believe in the 20 early '90s you gave a creosote deposition for a bank -- 21 A Yes. 22 Q Or trust company and one of the named 23 defendants was Montgomery County Growth. Do you know 24 if they were your client at the time? 25 A I know they weren't. The bank case it's -- ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 182 1 Q There's one company here with a trust in it 2 somewhere. First Federal maybe, was that the -- 3 A I don't think it's First Federal. But it's -4 Q Okay. 5 A It's called Tanglewood is the name of the case. 6 Q We should cross off Montgomery County Growth? 7 A I think so. . 8 Q Okay. 9 A And No. 24, Envirologic Data, I don't know that 10 I ever did work for them. A colleague of mine used to 11 work for them. I don't recall ever doing any work with 12 them. They were a consulting firm that went out of 13 business about 1988. 14 Q Okay. We'll cross them off as well. 15 A And is there such a thing as a Georgia Pacific 16 Railroad, No. 36? 17 Q It came out of adeposition. 18 A I don't know if there is such a thing. There 19 is Georgia Pacific, you know, the corporation Georgia 20 Pacific. I never heard of the Georgia Pacific 21 Railroad. 22 Q Have you performed work for Georgia Pacific 23 Corporation? 24 A Yes, sir. 25 Q Okay. Here. If I could hand you this and ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 prevail on you to cross out 24, 63 and the railroad, Page 183 2 from Georgia Pacific Railroad. So to the best of your 3 knowledge is this list accurate? 4 A Yes. 5 Q Okay. I have one more question for you about 6 this before we move on. Can you think of a company 7 that you performed services for that begins with the 8 letter T or the letter X. If you can? 9 A It would be fun, wouldn't it? 10 Q Well, it would be. And that'swhy I'masking. 11 A Xerox would be one that would become to mind. 12 But I n't recall that I ever billed Xerox. 13 Q A colleague of mine suggested to me we could 14 put Ex 15 phonet 16 A There must be a T over the years. And you're 17 going tell me that they are all covered otherwise? 18 Q I am, and that's why I had to ask. 19 A I can't think of one right now. But if I do -- 20 Q If you do just blurt it out. 21 A Between now and trial I'll let you know. 22 Q If only you had worked for Tanglewood. 23 A Yes, or Texaco. 24 Q Or Texaco. It must be. 25 A You would think somewhere over the years there ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 would be a Texaco case. I just right now can't think Page 184 2 of one 3 Q If it pops in let me know. 4 Back on the substance list. Can you tell me 5 which of these substances you provided testimony in 6 deposition or in trial for or related to? I'm not 7 saying you testified for benzene. 8 A Yeah, how do you want to do this? 9 Q If you just tell me the numbers, obviously 10 No. 1, there's been deposition and trial testimony? 11 A Yes, and No. 2, No. 3. 12 Q Mm-hmm. 13 A Certainly No. 6. Maybe No. 8. 14 Q I'll put a question mark. 15 A No. 11, No. 13, No. 14. You said deposition or 16 trial? 17 Q Yes, sir. 18 A 18, 19, 21, 23, 29, probably 30. 33. I think 19 that's all. 20 Q Have you ever provided testimony in deposition 21 or in trial for any individual claiming to be injured i : 22 by any of these products? 23 A Not in trial. I've been retained at times for i ` ; 24 some of the these. 25 Q What about in deposition? ESQUIRE DEPOSITION SERVICES (415) 288-4280 sTSTTkumU3s-. ;S ; I Page 185 1. A The only one, the only one that would perhaps 2 fit in that category would be methyl bromide. 3 Q Was that a personal injury case or a property 4 damage case? 5 A It was a property damage case that there was a 6 alleged -- no, it was always a property damage case. 7 And no other personal injury cases become to mind. 8 Q Okay, thank you, Doctor. 9 A I guess it's worthwhile saying I'd do it if j j \ 10 someone asked me to do it. But I just haven't had the 11 opportunity. 12 Q You haven't been asked? ! 13 A Right. 14 MR. RUCKDESCHEL: I'm going to mark as 15 Exhibit 14 the September 1986 publication, "Controlling i 16 Brake Dust to Protect Your Health, What Every Mechanic j 17 Should Know. 1 18 (Plaintiffs' Exhibit 14 was marked for 19 identification by the court reporter.) 20 BY MR. RUCKDESCHEL: ! 21 Q Are you familiar with this document? 22 A Yes. i 23 Q Do you believe the recommendations in this 24 document are appropriate recommendations to individuals ; 25 working with brakes? > ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 MR. LANKFORD: Objection, vague. Page 186 2 THE WITNESS: Do you mean you mean do I think 3 in 1986 was this a series of recommendations that I 4 think would be fine to make? 5 Q Yes. 6 A They would be fine to me. 7 Q Okay. You have discussed inthe pastin some 8 of your writings the issue of not wanting to warn 9 people in situations where there's not a real risk. Is 10 that a fair say, a reasonable generalization? 11 A WhatI've said is history tells usthat it's 12 not a good idea just to warn for sake of warning 13 because we think that it's democratic, because there is 14 problems associated with overwarning. 15 And I've said in the past, one of them, for 16 example, is right here in California whereProp 65 has 17 encouraged people to have warnings going into the plane 18 and the bathroom and the restaurant and the kitchen. 19 And to the best of my knowledge every study suggests 20 that they are not being read, nor do people give them 21 serious thought. So this de-emphasizes the impact and 22 impact of warnings in general. 23 Q Do you believe that the information provided 24 here in this September 1986 document is an example of a 25 warning that is of such limited value that it falls ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 into this desensitizing, not necessary warning? Page 187 2 A I wouldn't put this in the desensitizing 3 category. 4 Q Okay. And would such a, would a warning 5 regarding wearing a respirator when handling brake pads 6 that had asbestos in them in the 1990s be such a 7 warning? 8 THE WITNESS: Can I hear that again? 9 (Record read.) 10 THE WITNESS: It depends on the situation. If 11 you expected that exposures could be anywhere near the 12 PEL then it would be an appropriate warning. 13 BY MR. RUCKDESCHEL: 14 Q And if you didn't expect exposures to be 15 anywhere near the PEL would it be an inappropriate 16 warning? 17 A Not necessarily inappropriate, I just think it 18 would have to be done judiciously. 19 Q Okay. Are any of the activities that you, 20 Dr. Dennis Paustenbach, would expect a brake mechanic 21 to do in 1990s, in the 1990s create in your mind an 22 expectation that there could be exposure levels 23 anywhere near the PEL? 24 THE WITNESS: Could you read that back? 25 (Record read.) ESQUIRE DEPOSmON SERVICES (415) 288-4280 Page 188 1 THE WITNESS: Your question is too broad 2 because there is all kinds of braking opportunities. If ] 3 you're talking about autos only? 1 4 BY MR. RUCKDESCHEL: 5 Q Yes, sir. 6 A I'd be surprised if there were opportunities inj 7 the 1990s for people to routinely get exposed above the j 8 eight-hour time-weighted average PEL because we're in 9 an area where there is no beveling and no grinding and j 10 not many of the brakes have asbestos, certainly not the j 11 original equipment. 12 Q So would it be a bad idea from an industrial 13 hygiene perspective to advise people to wear a i 14 respirator when just handling asbestos-containing car j 15 brake pads in the 1990s? 16 A I wouldn't say it's a bad idea. I just think 17 you need to inform the worker of the pros and cons of ! 18 wearing a respirator. There is a hazard associated 19 with wearing a respirator. If after he or she is 20 informed of the potential problems of wearing it and j 21 the benefits of wearing it, I think it's entirely up to ; 22 the employee to do that. 23 Q And the information contained in Exhibit 14 is 24 information that would have been as appropriate to give 25 to a brake mechanic 1975 as it was in 1986, would you : ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 agree? Page 189 2 A Well, the state of knowledge is totally 3 different in 1975 as '86. 4 Q Putting aside issues of state of the art, 5 would the work practices described in the 6 September 1986 pamphlet have been appropriate to 7 recommend to brake mechanics in 1975? 8 A I don't think it would have been harmful to do j 1 j j 9 it. I don't think that there would be a significant 10 risk associated with many of these activities in 1975, i j 11 but there is nothing wrong with alerting people and 12 educating them about these activities. 13 Q And so -- 14 A Even in 1975 if people wished to do that that 15 would be fine. 16 Q To extent that these work practices were 17 appropriate to tell workers about, they would have been 18 as appropriate in 1975 as they were 1986? 19 A I don't know why you're restructuring, you 20 know, the prior question or my answer. I think what I 21 said is fair. 22 Q Well, I'm asking you, Doctor, do you believe 23 that it was appropriate for the EPA to provide these 24 recommendations to brake mechanics in 1986? 25 A I think it's fine for them to do it. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 190 1 Q Okay. And it would have been fine for them to 2 do that in 1975? 3 A- If they want to, sure. 4 Q Biologically the dangers to mechanics or 5 potential dangers to mechanics from asbestos in brakes 6 were the same in 1975 and they were in 1986? 7 A As I've said, then and today the risks to brake 8 mechanics, all the evidence is that there is no 9 increased asbestos-related risk. If you want to them 10 how to reduce exposure, that's fine. This is a 11 perfectly good set of materials. 12 Q Reducing exposure is a standard industrial 13 hygiene practice? 14 A Sure. 15 Q And it's an industrial hygiene practice that 16 has been known and discussed in the United States since 17 the 1930s? 18 A Sure. Except you want to keep in mind I 19 wouldn't want you to get the impression that just by 20 reducing exposure always reduces the risk of disease 21 because if there is no risk of disease, reducing 22 exposures below those levels does not help things any. 23 Q Let's talk about risk for a moment. Your 24 opinion is brake mechanics are not at increased risk of 25 developing asbestos-related diseases? t+avKxi'tt ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 191 1 A That's what the epidemiology data tells us. 2 Q And that's your opinion? 3 A. Yes. 4 Q Okay. Now increased risk when compared to 5 who? 6 A As compared to those that are in the 7 background. 8 Q Okay. And would you agree with me. Doctor, 9 that those in the background all have some level of 10 asbestos exposure? 11 A That's right. 12 Q And that's because there is asbestos in the 13 ambient air? 14 A That's right. 15 Q As we sit here in this room there may well be 16 some asbestos in the air? 17 A I'm sure there is. 18 Q All right. So there is no completely 19 unexposed population in the United States with regard 20 to asbestos? 21 A That's probably true. 22 Q All right. Now also within that do you have 23 an idea as to how many, what percentage of individuals 24 with mesothelioma fall within this persons with no 25 exposure category or no known exposure? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 192 1 A Well, Roggli and others say about 20 or more 2 percent of the mesotheliomas are not due to asbestos. 3 Q. Okay. That's a little different question than 4 I asked you, though. And the question that I asked you 5 is what percentage of individuals, whether you have an 6 opinion as to what percentage of individuals with 7 mesothelioma have no known exposure to asbestos, other 8 than ambient. 9 A I don't think I can answer that question. 10 Q Okay. The Spirtas paper estimates, well, 11 defines that 90 percent of the individuals with 12 mesothelioma, the base study, had known exposures to 13 asbestos above ambient? 14 A Yeah, but that doesn't mean for a causal 15 relationship. 16 Q I understand. I understand. 17 A Okay. 18 Q Now the 10 percent, if we use the 10 percent 19 from the Spirtas paper just as an example here, there 20 are individuals in that 10 percent that have been 21 exposed to asbestos beyond the ambient and just don't 22 know it? 23 A Correct. 24 Q Do you have an idea of what percentage of that 25 percentage has exposure and just doesn't know it? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A Oh, I wouldn't, I couldn't answer that. Page 193 2 Q What would Dr. Roggli's recent papers suggest 3 to us regarding that? 4 A I'm not sure. 5 Q Okay. In order for there to be a measurable 6 increase in risk of automobile and truck brake 7 mechanics, mesothelioma as a result of their work as 8 mechanics, would you agree that the rate of disease 9 would have to exceed the unknown percentage of 10 individuals that have been exposed and get 11 mesothelioma, but don't know about their exposure? 12 MR. LANKFORD: Objection. 13 THE WITNESS: That's a difficult question. I'd 14 like to hear it again. 15 MR. LANKFORD: Read it back. 16 (Record read.) 17 THE WITNESS: Only if you knew precisely the 18 people understood their exposure history. And that's 19 why I can't answer your question. Because it assumes 20 that Spirtas has that, you know, valid data or that 21 Roggli has that valid data. 22 BY MR. RUCKDESCHEL: 23 Q I understand, and if you make that assumption 24 that Spirtas, and I maybe be mispronouncing his name, 25 has valid data, then would my question be correct? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 194 1 A You can't, you only have a certain amount of 2 cases in the pie. So by definition you would have to 3 be correct. But since we know that the data on 4 people's knowledge about their exposures is so flawed 5 it's really very difficult to deal with that question. 6 Q And isn't that a fundamental weakness of 7 epidemiology when looking at the brakemechanic 8 mesothelioma situation? 9 MR. LANKFORD: Vague. 10 THE WITNESS: Actually itwould go the other 11 way. See, that's what makes it such a powerful 12 statement to say that the epidemiology today is so 13 favorable. Because if they have unknown exposure it 14 would only make the probability higher of false 15 positives. The fact they are actually at 1 is what is 16 so remarkable. 17 That's why epidemiologists are so impressed 18 with the brake dust studies because if they had unknown 19 exposure to amphiboles then you'd see these mechanics 20 being above 1. But they are not. So it makes it all 21 the more remarkable. 22 Frankly, I'm surprised others haven't thought 23 much more about that. Do you understand what I just 24 said? . 25 Q I'm not following. Can you dumb it down? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 195 1 A For example, it's not hard. If you have all 2 these boxes of people -- 3 Q Uh-huh. ' 4 A -- and one of the boxes is a brake mechanic, 5 and he says that all I ever did, was I was a brake 6 mechanic my whole life. 7 And you do a study at these people and they are 8 at 1, in other words, background risk of mesothelioma. 9 And he happens to have forgotten that he was an 10 insulator for a year in the Navy, okay? Or he happens 11 to have forgotten that he cut transite pipe in high 12 school. 13 That would tend, right, to bias, they would 14 tend to have a higher probability of disease. So they 15 might in fact report a 1.5 risk, if we had reported a 16 1.5 risk and then we did a better exposure history or 17 we knew perfectly what they were exposed to, we would 18 see that 1.5 for that group was corrected back to 1 19 after we found out they, you know had these other 20 exposures they had forgotten or didn't know about. 21 The fact that these brake mechanics or 22 mechanics in general, blue collar workers tend to still 23 be at 1 in spite of the fact probably a lot of them had 24 exposure they didn't know about or couldn't remember is 25 all the more remarkable they still outcome out at 1. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 I'm quite surprised. Page 196 2 Q Well, none of the brake mechanic epidemiology 3 studies determine a relative risk of 1, do they? 4 A Well, they all become out at 1 or less or in 5 that vicinity. . 6 Q Well, in fact, they all become out 7 substantially less than 1? 8 A I wouldn't they all. But they all are 1 or 9 less. 10 Q There is not a single one at 1? 11 A Well, you know, you're looking at the best 12 estimate value. You're not looking at the error bounds 13 on it. But all the case control studies are 1 or less. 14 Let's just assume that's true. 15 Q Okay. 16 A Unless you want to look at my paper and look at 17 that chart or what? 18 Q No, what I want to do is give you a chart. 19 A Okay. 20 Q But I've lost the chart. I'm losing things, 21 it's later in the day. Here, the one that says 22 "Charts"? 23 A Okay. 24 MR. RUCKDESCHEL: What I'd like to do is take a 25 minute and we'll digress and then we'll come back to ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 this. Page 197 2 I want to mark as Exhibit 15 a blank chart that 3 will break up the epidemiology studies. And I' d like to 4 fill this chart in with you, Doctor. 5 (Plaintiffs' Exhibit 15 was marked for 6 identification by the court reporter.) 7 BY MR . RUCKDESCHEL: 8 Q So in the past I believe you testifiec that i 9 you relied primarily on these seven studies? 10 A I don't know if I've said that, but I do rely ' 11 on those. j , 12 Q Okay. Well, let's go through these. 13 A Okay. We're going to go ahead and use my 2 0 0 4 j 14 paper for reference? 15 Q Sure. ! j 16 A Okay. 17 Q What I'd like to do, Doctor, is have you fill 18 in, I think it would probably be -- all right, you tell j 1 19 me, would it be easier to go study by study or column j 20 by column? 21 A It would probably be easier just to go off the | 22 record and have me fill it in and then give it back to 23 you in ten minutes. j i 24 MR. RUCKDESCHEL: Done. Let's go off the ! 25 record 1 ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 198 1 THE VIDEOGRAPHER: We're off the record. The 2 time is 2:48. 3 (Brief recess.) 4 THE VIDEOGRAPHER: Back on the record. The 5 time is 3:11. 6 BY MR. RUCKDESCHEL: 7 Q Dr. Paustenbach, while we were off the record 8 you were kind enough to fill in for us Plaintiffs' 9 Exhibit 15 which is a chart I had prepared before this 10 deposition regarding epidemiology studies you rely 11 upon. I left a column off of this chart and I | 12 apologize -- I'd like to stop for a minute. 13 (Discussion off the record.) 14 BY MR. RUCKDESCHEL: 15 Q Dr. Paustenbach, I left off on the column what ; 16 the finding of relative risk was pertaining to the 17 studies. 18 A You want the best estimate; is that right? 19 Q Yes, if you would, please, just put that over 20 on the right hand-margin there. 21 A Okay, I'm done. I've filled in the column. 22 Q I'll just fill them in on my copy. Thank you, 23 Doctor. 24 We've got .91, 1.0 for Spirtas, .68 for Teta, 25 1.0 for Woitowitz, .8 for Tesche, and 6.2 for Agudo, j ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 1.04 for Hessel. Page 199 2 Doctor, the Spirtas paper didn't calculate a 3 relative risk for brake workers; is that correct? 4 A That's right, you had to get it back and 5 calculate it. 6 Q Okay. So that information wasn't presented in 7 the Spirtas paper. The 1.0 comes from where? 8 A It comes from the work of Goodman and others 9 who went back and looked at the data. I think Hessel 10 also was involved. 11 Q Okay. And that is the paper published by your 12 former colleagues at Exponent? 13 A That's right. 14 Q And they did that as well for which other 15 paper? Did they do that for another paper? 16 A I don't recall that they did. 17 Q Did Woitowitz and R~delsperger didn't 18 calculate a relative risk, did they? 19 A I'll have to go back and look. Hold on. There 20 were one or two we had to go back and calculate in the 21 data. 22 Wong reported the relative risk for Woitowitz 23 and R'delsperger, and Spirtas in his follow-up in '94 24 reported a relative risk of 1 for subjects engaged in 25 brake lining, installation or repair. So it's actually ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 a subsequent piece by Spirtas. Page 200 ; 2 Q Okay. And so the Woitowitz 1.0 is from the 3 Wong paper? 4 A Yes. 5 Q Not from Woitowitz? 6 A Well, I don't know how Wong, I'll have to go 7 back and look to see if Wong contacted them or not. 8 Q Okay. And did Wong calculate.a relative risk 9 in his paper? ' , 10 A I can take a look. That's what my notes say. 11 Q All right. 12 A But we'll take a look. ; 13 Q I meant an overall relative risk? 14 A You're talking about Woitowitz's paper -- i 15 Q No. ; 16 A Not his own -- or for his meta analysis? < 17 Q I meant for his meta analysis? 18 A Oh, his meta analysis. I think he did ! 19 calculate something. It's not in here. Do you want to : 20 know the answer to that? ; 21 Q I would. 22 A Okay. Well, let's see if we can't get it. ! 23 MR. LANKFORD: This is my copy of the report. 24 MR. RUCKDESCHEL: I have no problem with you 25 showing the witness that copy. i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 MR. LANKFORD: Okay. Page 201 2 THE WITNESS: I can read you what it says in 3 Wong' s- paper. 4 BY MR. RUCKDESCHEL: 5 Q Okay. 6 A He definitely cites a figure for Woitowitz. 7 But your question really had to do with whether or not 8 Wong came up with his own relative risk? 9 Q That's the current question. 10 A Yeah. His relative risk, I'll read to you what 11 he says. In his abstract Wong says: 12 "Based on a meta analysis of the 13 combined data of all six studies 14 consisting of approximately 1500 15 malignant mesothelioma cases, the 16 mesothelioma relative risk for auto 17 mechanics is 0.90 with a confidence 18 interval of .66 to 1.23." 19 Q Okay. And in this chart we've listed in the 20 first column the job classification. And for McDonald 21 and McDonald they just classified workers as garage 22 workers? 23 A Correct. 24 Q We don't know whether those workers were 25 mechanics or not? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A That's true. Page 202 2 Q And we don't know whether they did brake work 3 or not? 4 A I suppose that's true. 5 Q For any of the individuals that were grouped 6 into that category, garage workers? 7 A You have to infer in most of these studies they 8 did brake work or were overexposed to brake dust. 9 Q That's an assumption that you make? 10 A I think you have to, yeah. 11 Q You have to if you want to rely upon the 12 study, right? 13 A Sure. 14 Q If you don't make that assumption then the 15 study doesn't really tell us anything, does it? With 16 regard to the question. 17 A If they were misclassified where they never 18 really did brake work and they said they did, then the 19 study would have errors in it. 20 , Q In the McDonnell study, for example, they 21 didn't ask people whether they worked on brakes, they 22 just said do you work in a garage? 23 A That's right. 24 Q And for the Spirtas study they classified 25 people as having performed brake lining installation, fwn&t,/>,?&!!!?. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 right? Page 203 2 A That sounds more like a direct brake worker. 3 Q Okay, and do we know whether the individuals 4 that installed those brake linings ground, beveled or 5 sanded those linings? 6 A That information isn't provided. 7 Q And do we know whether they opened the boxes 8 themselves or whether the boxes were brought to them by 9 a parts boy? 10 A We wouldn't know the level of information based ! 11 on these studies.. 12 Q And with regard to the Teta study the 13 categorization is auto repair and related services, 14 correct? 15 A Correct. 16 Q Were there other categories, other occupations 17 lumped into that category as well? It's on 753 and I 18 don't think there were. 19 A It looks like it was just automobile repair and 20 related services on Table 7. . 21 Q Okay, and we don't know whether any of the 22 individuals in that study did brake repair? 23 A Again unless you excluded it you would assume 24 they would since they are involved in automobile 25 repair. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q And we assume that some of them at least did 2 brake repair? Page 204 3 A That's right. 4 Q But we don't know for any particular 5 individual whether they did or did not? 6 A That's right. 7 Q And again we don't anything, like with the 8 Spirtas study, we don't know anything about the work 9 practices that were used? 10 A I think in all these all you would know is they 11 were involved in either garage or brake work. 12 Q Okay. 13 A And how much grinding they did or how much 14 sanding they did or beveling they did, would you have 15 to infer that based on the time when they were exposed. 16 Q And even if we were to look at say the 1950s 17 it's my understanding from having read your 2003 paper 18 that in the 1950s not everybody ground? 19 A That's right. 20 Q And not everybody ground all the time of those 21 who did grind? 22 A Well, sure. Of course. If it already fits you 23 don't need to. grind it. 24 Q And the same for beveling, not everybody did 25 any beveling? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A That's a fact. Page 205 2 Q And those that did bevel, some didn't bevel 3 all the time? 4 A As I said before, I don't think anybody beveled 5 all the time. 6 Q And as for sanding? 7 A Rare occurrence. ; 8 Q So for individuals that did sand the dose 9 would be higher than those other individuals? 10 A All other things being equal. I mean like 11 Mr. Mallia does not talk about grinding so he probably 12 has a much lesser dose than those people that did. , 13 Q And with Woitowitz and R~delsperger, the same 14 as the Teta study, we know that they are motor 15 mechanics but we don't whether they did brake work? 16 A That's true. 17 Q And we know nothing about the work practices? 18 A- No, not really, I don't know anything about 19 them anc they are not reported but -- 20 Q Right. 1 21 A -- I imagine they might know something. : 22 Q But for our purposes we just don't know? 23 A That's true. : 24 Q And there's no way for us to tell whether they 25 did any of the things that caused release of asbestos ^ ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 dust into the work environment? Page 206 2 A We just have to infer that it happened. 3 Q We make that assumption? 4 A That's right. 5 Q And the same for Tesche? 6 A Tesche. 7 Q Tesche? 8 A Same. ' 9 Q And for Agudo as well? 10 A That's right. 11 Q And then the Hessel paper which is the last 12 row, is just a reanalysis of the Spirtas data from 13 1985? 14 A '94 and '85 as I recall. 15 Q But the data is the same in both papers; is 16 that correct? '. 17 A I'd have to look at it again to be sure. But 18 that's my recollections. 19 Q We don't the need to get into that. And for 20 all of these we know nothing about the work practices 21 of the individuals? 22 A Not on a per person basis. 23 Q Okay. And you would agree that the work 24 practices varied amongst mechanics? 25 A For sure. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q So in order to find in an ideal world an Page 207 2 epidemiological study that gave us a meaningful answer 3 with regard to brake mechanics like Joe Mallia, we 4 would want a cohort of individuals that did the types 5 of things that Joe Mallia did, would you agree? 6 A Unless Joe Mallia performed his job unlike all 7 other people that were mechanics that worked on brakes, 8 you would infer that this wealth of data would be 9 applicable to his work practices. 10 Q We would want to know in an ideal world, 11 Doctor, would we not, we would want to have a cohort of 12 individuals who opened the boxes themselves, who filed 13 the edges like Joe described, who sanded the face in 14 the manner that Joe described, who performed compressed 15 air blowout, who cleaned up in the manner described by 16 Joe, and who did not have any dust control practices in 17 place, correct? 18 A In an ideal world if you could find a cohort 19 that large and you were then trying to look at 20 mesothelioma, then that would be. quite a study. 21 Q But that's what we would want to know in an 22 ideal world? 23 A I think maybe the key part of my testimony 24 would be this data set is amazingly strong in spite of 25 what you're describing as possible shortcomings. It's ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 208 1 an amazingly strong data set for an occupational cohort 2 for which we can infer disease causation. 3 It is true there are some things that would be 4 ideal, for instance perhaps this cohort's more exposed 5 than Mr. Mallia was, Mallia, and therefore we're 6 talking about exposures that are much greater than what 7 he experienced because he isn't involved in beveling 8 and he's working much later in history than these 9 people. 10 So all I can tell you for purposes of this 11 case, these people were probably exposed I would expect 12 much more than he was in spite of the work practices 13 that he described. 14 Q But you have no factual basis for that 15 statement other than -- 16 A Other than I studied all the published 17 information on the issue which is, seems to be a pretty 18 good basis for my view. 19 Q There is no published information regarding 20 work practices of mechanics contemporaneously published 21 in the 50s, is there? 22 A No. 23 Q Andthe 1960s other than the Hickish study? 24 A No. All you can do is base it on experience 25 through interviews. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 209 1 Q And in the '70s the published information, the 2 most frequently cited piece of published information is 3 the Mt. Sinai study? 4 A No, probably the weakest of all the' studies are 5 the Sinai studies. The most important and most 6 frequently cited are the NIOSH study, most cited by 7 those in the exposure assessment world. The most cited 8 perhaps in general are the Sinai ones because they were 9 first. 10 Q Okay. 11 A And because they are in the peer review 12 literature. That's why they get cited. The NIOSH 13 studies don't get cited because they are not in the 14 search engines. 15 Q In the NIOSH studies they began in the late 16 1970s? 17 A Yes. 18 Q And they continued into the 1980s? 19 A That's true. 20 Q And the majority of those studies we're 21 looking for garages that were currently using control 22 methods? 23 A To a large measurethat's true. 24 Q And part of that was because they wanted to 25 investigate whether the control methods that were being ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 suggested in things like the EPA handouts were Page 210 2 effective in reducing dust levels in garages? j 3 A To some degree that's true. ; 4 Q And you would agree that for garages that were 5 using control methods, to avoid dust release during 6 brake servicing, the numbers that are provided in those 7 tests are not applicable to Joe Mallia in attempting to ; 8 determine what level of dose he received? 9 A That's right. You can't compare the J I ` 10 engineering control situations to the ones that he j 11 claimed that he had. 12 Q And you can't compare the no filing 1I4 j 13 information to the filing information that Joe had? 14 A If that I were true, yeah. Filing is not, it 15 doesn't strike me to be one of the big exposure j j 16 scenarios frankly. 17 Q Why? 18 A Because I think filing is going to involve the j 19 generation of larger particles rather than smaller I 20 particles just by the very nature of the filing. 21 Q Have you seen any studies that have examined j j 22 the size of the particles? j 23 A I haven't seen a scholarly study of that issue. 24 Q So you're making that assumption? 25 A I am. j | ] 1 ! ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 211 1 Q Okay. Do any of these studies control for the 2 age of the party? 3 A You mean the age of the worker? 4 Q Yeah. 5 A I've not seen that. 6 Q Okay. The Agudo -7 A I'm not sure why that would be important I 8 exactly but -- 9 Q Let me ask you, do you have the Agudo paper? 1 10 A I do. j 11 Q Agudo didn't attempt to calculate a relative j 12 risk for brake mechanics, did he? It's on Page 164, j 13 Doctor, in the footnote. j 14 MR. LANKFORD: Could you read back the 15 question 9 16 BY MR. RUCKDESCHEL: . i 17 Q I'll just say it again. Agudo didn't 18 calculate a relative risk for motor vehicle 19 mechanics; is that correct? j 20 A He calculated an odds ratio rather than 21 relative risk. Is that what you meant? 22 Q Right. Agudo didn't calculate an odds ratio 23 for motor vehicle mechanics; is that correct? 24 A He called it for mechanics, motor vehicles. At 25 least that's the way Goodman interprets it on Page 316. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Okay. If we look at Agudo -- i Page 212 2 A Mm-hmm. 3 Q -- and we look at Footnote A on Page 164 it 4 states: ' 5 "Only occupations that at least five 6 cases where a significant odds ratio are 7 presented in the table." i 8 A Mm-hmm. 9 Q Do you know of anywhere else in this paper 10 other than the table where they report the relative 11 risk for mechanics? 12 A Well, all I can say is how others have 13 interpreted his data. 14 Q Okay. And so while one can take the data and 15 calculate the odds ratio, Agudo didn't do that? 16 A That's fair. 17 Q Okay. And Page 162 of Agudo's paper, there is 18 a statement, quote: . 19 "Compared to those who never worked I 20 or who were considered as never exposed, 21 all levels of probability and intensity 22 had an increased significant risk except 23 subjects with low probability of 24 exposure." j 25 Do you see that sentence? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A Yes. Page 213 2 Q Now Joe Mallia would fall into the category, 3 would not be in the -- I'm sorry, let me start over. ; 4 Joe Mallia would not be in the low probability ; 5 of exposure category? 6 A I wouldn't think so. ; 7 Q Okay. And so under the data presented here in 8 Agudo dude Joe would fall into a classification that 9 had an increased significant risk, correct? 10 A I wouldn't make that inference, no. i j i j -I ; 11 MR. LANKFORD: Objection. 12 THE WITNESS: You're taking a sentence out of j 13 context and not looking at the data. I would look at 14 the data first and not try to generalize from the text. 15 BY MR. RUCKDESCHEL: 16 17 ' Q Have you done so? A I'm relying on Goodman and Wong. ] 18 Q Okay. Let's turn to the next page, 163, and ; 19 there is a sentence in the left-hand column of the 20 text: 21 "The analysis on probability of ' 22 asbestos exposure was restricted to some 23 subgroups, subjects younger 55 years, i 24 eleven cases and four controls, showed an ; 25 ' odds ratio of 10, confidence interval of ! ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 214 1 1.86 to 53.9 for the category of sure 2 exposure." 3 Now Joe Mallia falls into the category of sure 4 exposure , does he not? 5 A Are you trying to bootstrap from this general j 6 statement to Joe Mallia? You can't do that. These 7 sure exposures are for people that really got exposed, 8 not for marginally exposed people like Joe Mallia. 9 Q Well, Agudo looks at two things, right? Agudo 10 looks at probability of exposure? 11 A Right. 12 Q And Agudo looks at intensity of exposure? ; 13 A That's right. 14 Q Okay. And in this sentence Agudo is a 15 referring to the analysis of the probability of the 16 exposure segment of the paper? 17 A That's right. 18 Q And Agudo concludes that those in the category 19 of sure exposure, and Joe was certainly exposed to j 20 asbestos , there was an odds ratio of 10? 21 A But he doesn't place the mechanics in that box 22 in this paper. ! 23 Q What box does he place the mechanics in? i 24 A He doesn't place them in that box. ; 25 Q What box does he place them? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 215 1 A Okay, my reading of this is that he's got the 2 people in Table 4 in the box of high exposure. As he j 3 says in his text, the bottom of Page 163: 4 "A total of 39 occupations were ! 5 considered as occupation at risk of 6 asbestos exposure according to their 7 probability score, Table 4." 8 And he listed those with the highest. And : 9 then at the bottom he says, "Any occupation with high . 10 risk of asbestos A," and he defines that based on his i j 11 odds ratio. I don't think he had the five-case minimum 12 here that I think he was using for his minimum 13 definition for the categorization. So I've inferred j 14 that he doesn't put them in that box. j 15 Q Let's take us out ofthe discussion then of ! 16 Agudo thenif they don't have the five-case minimum, ; 17 and let's talk about Joe. Let's talk about Joe Mallia. j 18 Joe Mallia definitely was exposed to asbestos 19 in his work as a mechanic if you believe his testimony? j 20 A Yes, sir. 21 Q What is attributable risk in epidemiological 22 terms? 23 A I don't know that I could give you the exact j 24 epidemiological definition. 25 Q What is your understanding? Give me a ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 layman's description of attributable risk. Page 216 2 A That risk that can be identified to be 3 associated with a particular type of exposure. 4 Q Before we progress with that I had another 5 question I forgot to ask you earlier. Can you name for 6 me any peer review publication that labels as 7 idiopathic a mesothelioma with demonstrable asbestos 8 exposure? 9 MR. LANKFORD: Objection, vague, overbroad, 10 ambiguous. 11 THE WITNESS: I don't know that such an 12 analysis has been done. I mean I've never seen anybody 13 sit down and say that they had reached such conclusions 14 and put it in the peer-reviewed literature. It might be 15 a useful thing to do but I've not seen it. 16 BY MR. RUCKDESCHEL: 17 Q The way the term "idiopathic" has been used in 18 the peer-reviewed literature has historically referred 19 to no known asbestos exposure, correct? 20 MR. LANKFORD: Objection, are you talk about 21 occasional, what we talking about in this room? 22 THE WITNESS: Let's go back to the question. I 23 don't think you meant to ask what you said. Do you want 24 to hear it back or do you want to do it again? 25 BY MR. RUCKDESCHEL: . ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 217 1 Q Let's do it again. The term "idiopathic" -- 2 A In general now, not asbestos. Because you went 3 from general to asbestos. . 4 Q In asbestos -- 5 A Okay. 6 Q -- has been used in the peer-reviewed 7 literature to describe individuals with no known 8 exposure to asbestos above ambient? 9 A That and no significant exposure to radiation. 10 Q Okay. 11 A I think you have to satisfy those two criteria. 12 Q Let's take radiation out just so -- 13 A Some people take the simian virus as well. 14 Q Right. 15 A But let's just say if you take those two out 16 plus asbestos then they normally would say idiopathic. 17 Q Let's talk about the monkey virus for a 18 second. 19 A Okay. 20 Q Do you believe that the monkey virus, SV-40 21 causes mesothelioma? 22 A I think the data are inadequate at this time. 23 Q Okay. Now if we exclude cases of radiation, 24 would you agree that in the peer-reviewed literature 25 with respect to asbestos, the term "idiopathic" has * ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 218 1 been used historically to describe cases with no known 2 exposure to asbestos other than ambient? 3 A Yes, other than radiation, that's true. 4 Q Okay. 5 A Historically. 6 Q Right. And you cannot identify for me as we 7 sit here today a paper that has used that, a 8 peer-reviewed paper that has used that term 9 differently? 10 A None comes to mind. 11 Q All right. 12 A There may be some but none comes to mind. 13 Q I understand you're not a walking library. 14 A Not like you, Counsel. 15 Q Now with regard to the term "attributable 16 risk, " can you describe that for me, and again I 17 apologize. 18 A As I recall it's generally used, if you had 19 three possible exposures to asbestos, one is a 20 bricklayer layer, one is an insulator and then let's 21 say a brake mechanic, where would you.attribute the 22 risks, the overall risk would be. Which page are you 23 on? 24 Q I'm looking at the Spirtas paper from 1994. 25 A Okay, which page? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 219 1 Q I'm looking at Page 809 in the discussion 2 section? 3 A Mm-hmm. ' 4 Q The sentence that begins, "We found slight..." 5 It's on the left-hand column about two-thirds of the 6 way down. And the sentence states, quote: " 7 We found slightly but generally 8 higher partial ARs among the younger mail 9 cases." 10 Can you tell me what Spirtas is referring to 11 there in the discussion? 12 A Not having spent more time on it than what 13 we've done here in the last few minutes, I think my 14 definition is still okay. 15 His discussion of attributable risk begins on 16 Page 808 in the last paragraph, and I think what he's 17 saying is, I'm trying to assign the likelihood of 18 disease to a particular cause, and he's talking about 19 whether or not the mesotheliomas are likely to be due 20 to exposure to asbestos in general or he raises the 21 question about the type of asbestos fiber. And he says 22 this is difficult to do with the available information. 23 And that's what I take from this. 24 Q Would you agree that that's difficult to do 25 with the available information? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 220 1 A At that time and even today it's very difficult 2 to tease out. We have only gotten better at it the > .3 last few years. 4 Q And Spirtas found that amongst younger male 5 cases there was higher attributable risk to asbestos 6 exposure for the mesothelioma cases? 7 A Yeah, I think what he's saying is those younger 8 people may well have had exposures to the amphiboles 9 versus the older people. And I think that's what he's j 10 trying to tease out. He's unable to do that. 11 Q What the study found, though, Doctor, is what 12 is discussed by Mr. Spirtas, for example, on Page 808 13 in the first complete paragraph on the right-hand 14 column: 15 "Results by decade of first exposure : 16 were complimentary to those for latency 17 with the two likelihood measures showing 18 higher risks for subjects exposed earlier 19 and the ever or never questions showing 20 the highest risk among subjects beginning 21 exposure most recently." 22 That's consistent with what Dr. Agudo found 23 that the highest risk is found in the cohort, ever j 24 exposed. versus the ones that believe they were never 25 exposed? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A I'm not surprised at that. Page 221 2 Q Okay. What are some of the ways that you 3 judge the quality of an epidemiological study? 4 A Well, what do I consider? 5 Q Yeah, Dr. Paustenbach, what are some of the 6 ways you, Dr. Paustenbach, judge the quality of an 7 epidemiological study? 8 A I look at the journal it's in right away. 9 There are certain journals that are more rigorous than 10 others with respect to the threshold as to whether they 11 are considered good or average quality studies. I 12 looked at the size of the cohort, the exposure 13 information, the length of time that the study, the 14 people in the study were evaluated. ' 15 I look to see if they are using qualitative or 16 quantitative descriptions of exposure. I look to see 17 if the results are consistent or inconsistent with 18 other people who have studied the same issue. I like 19 to see if there is confounding variables, especially in 20 the kind of work that I do. 21 I want to see if there are alternate sources of 22 exposure to that same chemical versus the occupation 23 being evaluated. I like to look at the statistical 24 strength of the results, and I'm particularly 25 interested in the size of the background that is ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 222 1 evaluated. That is, the background population and the 2 background exposures. 3 And then of course if it's a rare disease you . 4 want to have confirmation from the pathologies, 5 pathologists if it's a difficult diagnosis. And then I 6 look at latency. I make sure chronicity is right. 7 Chronicity. 8 Q Temporal sequence? 9 A Thank you, temporal sequence. 10 Q Did the egg become before the chicken? 11 A There you go. And then, you know, all of us 12 like to look at the Hill criteria and coax postulates 13 and try to borrow from other theorists as to whether or 14 not it meets some of the criteria for acceptability. 15 Q You used the phrase "criteria" with regard to 16 Dr. Hill. Dr. Hill indicates in his seminal paper 17 where he discusses these factors that no single factor 18 or specific combination of factors is necessary to draw 19 a scientifically valid conclusion from analysis of the 20 data. Is that fair to say? 21 A Oh, in a manner of speaking, among other 22 things. 23 Q They are not rigid criteria in the sense you 24 have to check off every box? 25 A I think that's true. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 223 1 Q Okay. You mentioned diagnosis, latency and 2 temporal sequence. Diagnosis, you would agree Joe 3 Mallia has mesothelioma? ; 4 A He does. It may not be the classic asbestos 5 mesothelioma but I'm not here to offer that opinion. 6 Q All right. And you would agree there's been 7 sufficient latency since Joe's exposure to asbestos for 8 him to have developed an asbestos-related malignancy? 9 A I think his latency is okay. j 10 Q Okay. And temporal sequence works out in this 11 case? 12 A Temporal sequence is ment. 13 Q Works out badly for Joe but works out fine for 14 this analysis? 15 A It's not surprising. 16 Q Okay. | 17 A If it's related to exposure. 18 Q You mentioned confounders and alternate 19 sources. Would you -- is it fair to say that a 20 substantial portion of your professional activities 21 over the last 15 years has been involved in looking for ; 22 confounders or alternate sources for exposure to toxic 23 substances? Confounders for -- ! 24 A I wouldn't say that at all. 25 Q Okay. You've done so with benzene, though? ; ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Have you? Page 224 2 A No. I mean I have at times, of course. But I 3 mean to say that my specialty is to try to point the 4 finger at other chemicals that cause someone's disease 5 that would be both inflammatory and incorrect. I 6 almost never get in situations where that occurs, 7 frankly. 8 And by the way, what we're going over is you 9 can't take the Bradford Hill criteria for evaluating 10 quality of a study and a causal link and apply to it an 11 individual very easily. Those are meant for evaluating 12 studies. . 13 They are in part used, of course, too, for 14 evaluating the likelihood that a particular person has 15 a causal link but they were intended for studies. 16 Q Sure. 17 A I mean it makes for a nice story for court what 18 you've just done, but it's not exactly what they had in 19 mind. 20 Q Do individuals who are engaged in boiler 21 installation and repair have an increased relative risk 22 of mesothelioma? 23 A Historically, yes. 24 Q Okay. Do you have an opinion or any 25 understanding of what the level of that relative risk nrart*.! ESQUIRE DEPOSITION SERVICES (415) 288-4280 naw*****- k Page 225 1 may be for boiler installers? And I'm looking sort of 2 ballpark. Is it 10, is it 5, is it 2? 3 A It's somewhere between 2 and 10 is my 4 recollection. I think they are in my chart. Tesche 5 look at that. 6 MR. LANKFORD: Which test? 7 THE WITNESS: Boiler installers. It's not in 8 my chart. My recollection is between 2 and 10 or 2 and 9 8, somewhere in there. 10 BY MR. RUCKDESCHEL: 11 Q Okay. What about for plumbing, heating 12 repair? 13 A That one is harder. 14 MR. LANKFORD: Object. 15 THE WITNESS: Are you looking at Spirtas? 16 BY MR. RUCKDESCHEL: 17 Q I'm not. 18 A Plumbing and heating repair. Again, that's 19 historical. You'd have to tell me what year. Because | 20 if you said 2005 for people that entered the trade in 21 1985 I'd probably say there may be no increased risk. 22 Q I'm discussing for individuals where there 23 would be sufficient latency for them to be reported in 24 the literature now. So it would be exposure prior to 25 1985. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 MR. LANKFORD: Objection. Page 226 2 THE WITNESS: Yeah, I think if I knew more 3 where you were going I'd like to help you get through 4 these questions because of the time of today. What is 5 it that you Want to get out of this line of questions? 6 Q Well -- 7 A There are certainly, of the craftsmen there can 8 be an increased risk depending on the era and the 9 location in which these craftsmen work. There is no 10 question about that. 11 Q So for the era that the 19, 1985 - 12 A If the exposures are occurring post-1985, the 13 increased risk for people who start to become exposed 14 in '85 is very low. 15 Q Let's talk about the first Spirtas paper if we 16 could, and I don't think I have a copy of it with me 17 but I know you got one there. If we were looking for 18 the time frame studied by them? 19 THE WITNESS: Jen, would you give me the first 20 Spirtas paper? I just have the second one here. 21 BY MR. RUCKDESCHEL: 22 Q May I reach across, Doctor, and take the 23 chart? 24 A Certainly. 25 This isn't it. Yes, it is, okay. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 227 1 Q If we look at people from that time period, 2 and I'm just looking for that marker, what was the time 3 period they published this paper? It was '85, right? 4 A It came out in '85. It involves telephone 5 interviews of next of kin from 1975 to 1980. So these 6 people were exposed pre-'75. 7 Q Okay. And for that group of individuals do 8 you have a, what would you expect the relative risk for 9 insulators during that time to be, do you have a - 10 A Depends what kind of insulators. If they are 11 in the shipyard, you know, it's fairly high. 12 Q Okay. 13 A I think 7 to 10 is not unusual in the 14 shipyards. Especially if they are smokers. 15 Q That's not relevant -- and for nonshipbuilding 16 insulators do you have an idea? 17 A Well, they got the boiler installation at 4.5, 18 shipbuilding; shipyard, 4.3 according to Spirtas. I 19 don't know if I can be any -- 20 Q Okay. What did they have for, did they look 21 at construction or demolition, Spirtas? 22 MR. LANKFORD: I don't know if your purpose is 23 completely limited to this but I don't know if you 24 caughtmy statement earlier that he's not offering any 25 opinions with respect to alternative exposures. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 228 1 MR. RUCKDESCHEL: I understand. Thank you. 2 THE WITNESS: Why don't I just read it. That 3 way you 'll know. 4 BY MR. RUCKDESCHEL: 5 Q Sure. 6 A We will just get the record straight. In 7 Spirtas , '86, these are the results, quotes: 8 "Job and nonjob-related activities 9 with known or suspected asbestos 10 exposures have the following odds ratios 11 (in 95 percent confidence intervals): 12 Furnace or boiler installation repair, 13 4.5. Shipbuilding, ship demolition or 14 shipyard work, 4.3. Insulation, 3.2. 15 Elevator installation or repair, 1.9. 16 Building demolition, 1.4. Plumbing or 17 heating repair, 1.3. Production of 18 textiles, 1.3. Brake lining installation 19 or repair, 1.0. Production of paper 20 products, 0.8." 21 And that's the end of this quote. 22 Q Doctor, I'd like to move on. I don't think 23 we' re going to go anywhere with this one. 24 A Okay. 25 MR. RUCKDESCHEL: Take a look at Exhibit 16 ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 which is the Hessel 2004 paper. Page 229 . 2 (Plaintiffs' Exhibit 16 was marked for 3 identification by the court reporter.) 4 BY MR. RUCKDESCHEL: 5 Q Are you familiar with this article? 6 A Yes. 7 Q Do you rely upon this article? I 8 A Yes. 9 Q Can you explain to me, Doctor, Page 550, why 10 the odds ratio for nonoccupational brake work is higher 11 than the odds ratio for occupational brake work? 12 A Well, there is no difference between the two. 13 They are virtually identical. You can't defer anything 14 from that. The confidence intervals are completely -- 15 Q In the chart you did, Exhibit 15, Doctor, 16 column, the fifth column, the last typed column has 17 been "Statistically Significant," and you crossed off 18 the word "Significant" and inserted the word "Increased 19 Risk." Why? 20 A It's because it's.a statistically increased 21 risk versus background. 22 Q Doctor, if the confidence interval of an 23 epidemiological study spans 1, by definition the 24 results of the study are not statistically significant? 25 A Right. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Okay. So if we were to make these two Page 230 2 columns, "Statistically Significant" and then one 3 "Statistically Increased Risk" your answer for 4 Statistical Significance would be no all the way down 5 as well? 6 A That's right. 7 Q Okay. And that means if we repeated the 8 study, the repeat study would fall somewhere within the 9 confidence interval? 10 A That's what you expect. 11 Q And 95 percent of the time it would fall 12 within that range. 13 A That's right. 14 Q So a study if we looked at of McDonald and 15 McDonald that was repeated and found a relative risk of 16 2 would be consistent statistically with the study 17 performed by McDonald and McDonald? 18 A I guess, that would be fair. 19 Q Yeah. All I want to do is be fair. Let's 20 move on. 21 I want to ask you about OSHA. If General 22 Motors has a factory and they make brakes in the 23 factory, and General Motors does a dust test and they 24 find that employee, hypothetical Employee Smith, just 25 so counsel from General Motors is fully aware I'm ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 talking hypothetical Employee Smith, is exposed to a Page 231 2 level of asbestos dust over the OSHA PEL at the time, 3 has General Motors violated OSHA? 4 MR.. LANKFORD: Objection. 5 THE WITNESS: Your question is if after 1972 a 6 sample is collected and it's a time-weighted average 7 sample, and that sample is over the contemporaneous PEL, 8 have they violated OSHA? 9 BY MR. RUCKDESCHEL: 10 Q Correct. 11 A They would be over the OSHA guideline if the 12 person was not wearing a respirator some of the time, 13 that would be considered above the guideline. It 14 wouldn't be a violation unless the OSHA inspector was 15 there and took the sample that day. 16 Q So it's only a violation if OSHA is there? 17 A Sure, because the violation means they've been 18 cited. 19 Q It's like speeding. You're not speeding 20 unless you get the radar and you get a ticket? 21 A It's not like speeding. I think if you said to 22 me did you get a violation for going over the speed 23 limit, then I would say if you got a ticket you got a 24 violation. That's different than asking me if they 25 were speeding. Do you see the difference? You asked ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 me about violations. Page 232 2 Q Well, I did. 3 A If you go over the speed limit everyday for a 4 week but you never get a ticket you haven't got a 5 violation. 6 Q If I rob a store and I don't get caught have I 7 submitted a crime? j 8 A Yes. 9 Q Okay. If I violate OSHA but I don't get 10 caught have I committed a violation? | j j 1 11 A Well, not exactly because you are supposed to 12 demonstrate a statistical confidence that you're below 13 the guideline. You can be above the guideline and feel 14 comfortable you have a safe and healthy workplace as 1 15 long as you statistically meet their criteria for 16 acceptability. So if 95 percent of the time you're 17 significantly below the standard and you're slightly . 18 above one of the times, they would not consider you in j 19 violation. That is, they would not consider it an 20 unhealthy workplace is what I should say. 1 21 Q Well, if you have a factory that has dust 22 levels that are in excess of the OSHA PEL 360 days out 23 of the year, and five days of the year the OSHA 24 inspector comes, which would be an inordinate amount, 25 about five days out of the year the OSHA inspector | j j ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 233 1 comes on those days they clean up their work practices 2 and they have exposures under the PEL during the time 3 the OSHA inspector is there, is that factory in 4 violation of OSHA? 5 MR. LANKFORD: Objection. 6 THE WITNESS: Technically they haven't gota 7 violation but they are not in compliance. I think the 8 term you're looking for is compliant. They are not 9 compliant with the OSHA regulation. That's the correct 10 term, compliant. 11 BY MR. RUCKDESCHEL: 12 Q They are committing a violation, they just 13 haven't been caught? 14 A No, don't put words in my mouth. I said they 15 are not compliant. That's the terminology. 16 Q Would you agree. Doctor, that the fewer number 17 of samples we have historically regarding a particular 18 work practice, the less useful the information is in 19 making particular determinations regarding any 20 particular individual? 21 THE WITNESS: Can I hearthat again.) 22 THE REPORTER: You'll have to say it again. 23 Can we take a break. ' 24 MR. RUCKDESCHEL: Sure. 25 (Brief recess.) ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 234 1 THE VIDEOGRAPHER: Back on the record. The 2 time is 4:16. 3 BY MR. RUCKDESCHEL: . 4 Q Dr. Paustenbach, would you agree that in 5 looking at cases like this case, the fewer number of 6 historical samples relating to dose we have of 7 individuals who've used work practices like Joe Mallia, 8 the less relevant the information is .in being able to 9 determine what dose Joe received from his work as a 10 brake mechanic? 11 A Yes. ' 12 MR. RUCKDESCHEL: Okay. Let's look at 13 Exhibit 17. 14 (Plaintiffs' Exhibit 17 was marked for 15 identification by the court reporter.) 16 BY MR. RUCKDESCHEL: 17 Q I want to ask you some general issues in your 18 toxicology hat regarding asbestos fiber types and four 19 types of disease caused by asbestos, pleural plaques, 20 asbestosis, lung cancer and mesothelioma. I'd like you 21 to do is just put a yes or no in the boxes or something 22 else, if it's "don't know," or "maybe," whatever else 23 you need to put in there with regard to this -- 24 A And these are at any dose? 25 Q That's correct. I'm referring to the question ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 of biological capability of causing that condition. Page 235 2 Okay. Doctor, you've completed the chart. 3 Have you done so to the best of your ability? 4 A Without looking at any references, that's the i 5 best I can do. 6 Q Okay. I notice that you have marked off that 7 pleural plaques can be cautioned by chrysotile 8 asbestos? 9 A That's my recollection. 10 Q Is it your understanding that asbestos must 11 reach the pleura to cause pleural fibrosis? 12 A That's my understanding. 13 Q And so is it also your understanding that 14 chrysotile asbestos reaches the pleura? 15 A Some of it can. . 16 Q .Okay. I don't have any further questions for 17 you on that exhibit. 18 Is it necessary to have an epidemiological 19 study that shows a relative risk of greater than 2 of 20 developing asbestosis amongst brake workers to 21 attribute asbestosis in a specific brake worker to that : 22 individual's work assuming that you have a careful work 23 history? 24 MR. LANKFORD: Objection. 25 THE WITNESS: Can hear that again? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 (Record read.) Page 236 2 THE WITNESS: Iknow you got it right but let 3 me hear it one more time. 4 (Record read.) 5 THE WITNESS: No, youwouldn't have to have an 6 epidemiological study showing something greater than 2. 7 I think I've opined before that one can envision an 8 implausible scenario where asbestosis could be caused in 9 a brake worker. I don't know that, you know, I have not s 10 read of any situation where that was likely to occur but 11 I can imagine how it could happen. 12 BY MR. RUCKDESCHEL: 13 Q Okay. And I'm not -- Iappreciate that 14 answer, Doctor.' My, what I want to get at is an issue 15 of risk and an issue of likelihood, and there is an 16 issue of an individual. And those two issues are 17 different. Would you agree? 18 A Yes. 19 Q And in a specific individual, that individual 20 has their own exposure history, and that individual may 21 have a disease, and that disease may be caused by the 22 exposure history in that individual.' Would you agree? 23 A Yes. . 24 Q Causation in theindividual mayoccur in 25 actuality, even though there is no measurable increase ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 237 1 in the relative risk for persons in that job category. 2 Would you agree? 3 MR. LANKFORD: Objection. 4 THE WITNESS: I understand your question to be 5 is it possible that a person who has a disease have that 6 disease or as a result of exposure even though there was 7 no epidemiology study that has ever been conducted that 8 showed greater than a relative risk of 2. That's what I 9 hear your question to be. 10 BY MR. RUCKDESCHEL: 11 Q It's close. Why don't you answer your 12 question and we'll see if you need to answer another. 13 A You could speculate or say it was plausible 14 that that person's disease was associated with their 15 work, but you wouldn't have sufficient scientific 16 evidence to support that. 17 Q Okay. Now are there agents where there has 18 been in your mind sufficient scientific evidence to 19 make an individual causation basis, determination, even 20 though there is no epidemiology? For example, vinyl 21 chloride? 22 A You know I've talked about this before. I've 23 had this the question three or four times. And I've 24 mentioned vinyl chloride. 25 Q That's why I brought it up as an example. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 238 1 A I've mentioned bischloromethyl ether. You 2 could look at some of the classic occupational 3 carcinogens of the 40s and '50s and you'd end up with 4 the same answer. And the nitrophenols. 5 Q And Wagner's report on mesotheliomas amongst 6 the miners in South Africa in 1962? j 7 A I think some people say that, yes. You mean 8 1960. 9 Q '60, I'm sorry. 10 A Yeah. I mean there are situations. I mean the ; 11 so-called classic occupational carcinogens fit in that 12 box. 13 MR. RUCKDESCHEL: I'm going to mark as , 14 Exhibit 18, "The Epidemiology of Asbestos-Related 15 Diseases in Quebec." 16 (Plaintiffs' Exhibit 18' was marked for 17 identification by the court reporter.) 18 BY MR. RUCKDESCHEL: ; 19 Q Are you familiar with that document? : 20 A Yeah, I've seen it. 21 Q Okay. I have a specific and very limited ; 22 question for you so I don't think it's necessary for 23 you to read it all. 24 A No, I'll just wait for your question. 1 25 Q Okay. If I could have it back. There is a ESQUIRE DEPOSmON SERVICES (415) 288-4280 1 statement in the summary section at the end of this Page 239 2 document on Page 71, and I'll read it to you, quote: 3 "Mesothelioma and pulmonary cancer 4 risks were not as high.following a low 5 exposure to the two types of asbestos 6 fibres [in brackets here, they are 7 talking about amphibole and chrysotile on i 8 the previous page] and did not reach the 9 statistically significant level. This : 10 may be interpreted in two ways, either at 11 a low exposure, there is no detectable 12 risk, or at a lower exposure, the risk is 13 slight and real. In the latter case, the i 14 large proportion of cases of the two 15 cancers among asbestos exposure was low, 16 rather than high, could make this a 17 non-trivial risk." 18 Do you agree with that statement? It's the 19 seconc flag I've highlighted. 20 A I think the statement means that it's possible 21 the amphiboles could be a significant risk and not be 22 demonstrated as such statistically. And in that case I i 23 would agree. . 24 Q Okay. So if we limit it to amphiboles, we 25 limit that statement to amphiboles -- and I don't j ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 believe that's what the statement says but that's Page 240 2 neither here or there. 3 A I'd have to spend more time with the document. 4 Q If we limit it to amphiboles, because the 5 consequences of developing mesothelioma are so high, if 6 there is a low, and in fact so low it cannot be 7 statistically measured, risk of mesothelioma at low 8 levels of exposure, that risk is non-trivial, you would 9 agree? 10 A Yeah, that's another aspect of risk assessment 11 which is either the likelihood or the significance of 12 the impact when it occurs. And that is what this is 13 about. And because mesothelioma has significant impact 14 it warrants special recognition. 15 Q It has the ultimate impact? 16 A Sure. 17 Q People with mesotheliomadie? 18 A That's right. 19 Q And unless they get hit by a bus or struck by 20 lightning they die from the mesothelioma? 21 A That's right. 22 Q And Joe Mallia is going to die from his 23 mesothelioma? 24 A I suspect that's true but I -- 25 MR. LANKFORD: Calls for a medical opinion. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 241 1 THE WITNESS: -- but it's not something I 2 should opine about. 3 BY MR. RUCKDESCHEL: . 4 Q Okay. Reasonableness with respect to health I 5 hazards and warnings and corporate behavior involves 6 consideration of a variety of factors, do you agree? 7A 8Q 9 case? 10 A Yes. And you opine upon reasonableness in this . Yes. ' j jS ! 11 Q Would you agree as the magnitude of a : 12 potential harm goes up more care is needed? 1 13 A Yes. 14 Q And as the likelihood of more harm goes up : 15 more care is needed? i 16 A Yes. i 17 Q Would you agree that with respect to the 18 benefit provided to the individual who is subjected to 19 the risk, if the benefit is indirect, more care is 20 needed to protect that individual? 21 A I've never heard it put that way. I don't 22 think that segue would weigh into a sense of corporate 1 23 responsibility. I don't think could you do that. ! 24 Q Let's think about it from a -- ; 25 A I tell you what. You said this earlier in the ! ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 .day. I think we may be talking by each other on the Page 242 2 definition of "indirect." So we need to probably 3 define that. 4 Q Okay, let's do that. Did Joe Mallia receive a 5 direct benefit from there being asbestos in brakes? 6 A Not personally. 7 Q Okay. Asbestos was included in brakes because j 8 it worked pretty well? 9 A True. 1 10 Q And it was relatively inexpensive? 11 A Yes . 12 Q And it was going to cost money and take some 13 time and engineering effort to get it out of brakes? 14 A No, I would say it was thought to be safe and 1 15 effective and on a cost -- or actually on risk/benefit j 16 basis, substituting it was thought to cause more of a 17 risk to society than leaving it in. At least that was 18 the prevailing thought for a long time. 19 Q Was that the prevailing thought in 1971 at 20 Ford? 21 A I can't say that they had made a decision that 22 was exclusively based on automotive safety in 1971. By 23 1971 other factors were coming into play. Your ; 24 question is sort of would .they have chosen to stay with 25 asbestos-containing brakes knowing what they knew about ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 safety in general. I suppose if there was absolutely Page 243 2 no regulatory or litigation issues they might well have 3 chosen to do that because at the time substitutes were 4 feared with respect to their ability to protect people 5 driving vehicles. 6 You know, I said this before, the challenges of 7 coming up with a brake that almost anybody that install 8 that works at 40 degrees below zero in Bemidji in the. 9 winter and works well at 140 degrees across the desert, 10 and they both stop the cars equally well under those 11 conditions was a special feat. 12 And to put that into jeopardy, which is what 13 they were doing when they were trying to substitute 14 other materials, was something that all these firms had 15 to take very seriously. 16 Q It was an engineering exercise? 17 A It was a real engineering challenge. 18 Q What materials substituted for asbestos? 19 A Ultimately? 20 Q Yes, sir. 21 A Well, there's a combination of materials. 22 Q Tell me what they are. 23 A They varied. Some people use metal filings, 24 some people used cashew and walnut shells. It's 25 actually a cocktail. Kevlar. Sometimes other fibrous ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 materials. So it's a mixture that they eventually Page 244 2 thought gave it the same performance. 3 So that's where we are today. I mean to my 4 surprise, you know, there is a question about this this 5 moment in some countries because they are seeing an 6 elevation in the ambient air levels of trace metals 7 that in brake linings. s 8 I got from Australia, actually an e-mail, 9 asking my views on this matter as to whether they 10 should get to chrysotile asbestos as a reasonable 11 substitute on a risk/benefit analysis. So to my 12 surprise this is still something that's being 13 discussed. 14 It's a chose call. It's a fascinating thing. 15 We have a very high expectation about a car stopping 16 when we want it to stop under all these different 17 conditions. 18 Q With regard to at least the front brakes on 19 Ford cars, would you agree that by 1971 Ford had 20 developed substitute materials that worked equally well 21 from an engineering standpoint as asbestos? 22 A You know, I can't give you an opinion about 23 equally well. I can tell you they considered it 24 adequate. 25 Q Okay. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A I don't know if I can, I can't -- I haven't 2 looked to see if it was equal. 3 Q Okay. What would it have cost Ford to 4 substitute nonasbestos brakes on the front wheels of 5 their vehicles at that time on a - 6 A In 1971? 7 Q Yes, on per vehicle basis? 8 A I don't know. I have not evaluated that. 9 Q Have you seen documents thatdiscuss that? 10 A I haven't. 11 Q Does the difficulty orexpense ofreducing a 12 risk play a part in the corporate determination of 13 whether to eliminate the risk or not? 14 MR. LANKFORD: Objection. 15 THE WITNESS: Well, I wouldn't say it's a 16 corporate determination. I would call it more a 17 societal determination. We do it all the time 18 societally. 19 BY MR. RUCKDESCHEL: 20 Q Companies do it, too? 21 A Well, it depends on what kind of risk you're 22 talking about. They certainly do it with respect to 23 certain risks. 24 Q Okay.- When you considered whether the 25 corporations in this case acted reasonably in issuing Page 245 ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 their opinion, did you consider cost of developing Page 246 2 alternative materials to substitute out for asbestos in 3 making that determination? 4 A I didn't have to because there was no evidence 5 during the journey of the last 40 years that there was j 6 a risk. So I didn't have to do that analysis. 7 Q Your analysis of reasonableness is based on 8 the conclusion that there is a risk? ! 9 A No, actually it was a, it was based on evidence ; 10 as time moved forward, that there was no risk and they ; 11 were moving to eliminate the asbestos anyway. The two 12 thoughts or the two processes in motion simultaneously : 13 created reasonableness. 14 Q What level of risk of development of I 15 mesothelioma would the epidemiology studies that are on 16 Exhibit 15 detect? 17 THE WITNESS: Can I hear that again, please? j 18 (Record read.) 19 THE WITNESS: I don't know how to answer that. 20 BY MR. RUCKDESCHEL: 21 Q Would they detect a l-in-10,000 risk? 1 22 A Oh, that's your question. ! 23 Q That is my question. We'll make that my ; 24 question. And then we can change the number. 25 A I can't see a l-in-10,000 risk. ! ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Can they detect a l-in-1000 risk? Page 247 2 A No. 3 Q Do you have an opinion as to what level of I 4 risk they might be able to detect? 5 A I think it requires a statistical answer. I 6 know it' s not anywhere near 1 in 1000. ! 7 Q They certainly wouldn't detect a l-in-100,000 8 risk? 9 A No. And they are not meant to. ; 10 Q I recognize that. 11 A Yeah, they are really meant as a yes/no 12 determination with respect to causation. You can try 13 to make them estimate risks but it wouldn't be in the 14 vicinity of 1 in 1000. 15 Q It would have to be greater than 1 in 1,000? 16 A You would be estimating, you would not be able : 17 to prove it. You'd have to use models to estimate. 18 Q I understand. Has that been done? 5 19 A Sure. 20 Q With asbestos in brakes? 21 A Sure. Not in brakes but in asbestos in ! ; 22 general. You could do the math and figure out what it 23 meant to brake the dust. 24 Q Let's assume for purposes of our discussion 1 25 today that there is in fact a real l-in-10,000 risk of , ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 mesothelioma to mechanics that work with brakes who Page 248 2 file the edges, who sand the faces like Joe Mallia did, ; 3 who use compressed air to blow it out and who clean in 4 the manner that Joe Mallia did, would you agree that 5 that risk would not show up in these studies? 6 A These studies would not illustrate a 7 l-in-10, 000 increased risk of, mesothelioma risk. j 8 Q If we look back at the language used in j 9 Exhibit 18, and I'm not attributing this as being the j 10 statement being made.in the paper but I like the way : 11 they worded it, so... Would that be a risk that was j 12 low, but non-trivial? 13 A That is something that thus far society has i 14 kind of defined, and I'm calling regulatory agencies j 15 society because they are supposed to represent societal 16 values. For workers it would be considered a trivial 17 risk, a l-in-10,000 increased risk of mesothelioma. 18 Q It's a value judgment? 19 A It's the agency's view that that is considered i i 20 an insignificant occupational risk. i 21 Q . I understand what you're saying. 22 A It's a value judgment of our society at this j 23 point. 24 Q Sure. But for your opinion in issuing a 25 reasonableness opinion, there exists a real but j ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 unmeasurable possibility there is a risk to brake Page 249 2 mechanics of mesothelioma in the magnitude of 1 in 3 10,000? 4 A No, I wouldn't say that. Because first of all, 5 we laid no foundation for that opinion. I haven't said 6 anything like that. So far you've said make an j 7 assumption about that. Remember, I haven't said it was 8 1 in 10,000. 9 Q No, I understand. ; 1 J 5 = 10 A Okay. ; 11 Q And I may have inartfully asked my last i 12 question. And what I'm trying to say is it's possible 13 that there is a l-in-10,000 risk of people amongst ; 14 brake mechanics who do what Joe Mallia did with brakes? 15 A I don't think so because I think the jury is ; 16 out with respect to whether chrysotile at any j 17 reasonable dose can even cause the disease. You have 18 to go through the hurdle of the hazard identification j 19 aspect which we haven't gotten through yet. i 20 And then secondly, you're asking me to assume 21 that it does cause the disease and that in fact there 22 may be a l-in-10,000 risk. I mean I can do it as a 23 hypothetical. Because it doesn't pass the first test I 24 don't have to worry about the mathematical model. i 25 Q Well, let's take it step by step and seeif we ; ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 can't tease it out. The studies that have been Page 250 2 performed regarding brake mechanics are insufficient to 3 defect a l-in-10,000 risk or even a l-in-1000 risk of 4 mesothelioma if one existed? 5 A That's correct. 6 Q Okay. What scientific evidence do we have 7 that such a risk does not exist? 8 A You've got the weight of evidence across many 9 studies that there is no increased risk of that disease 10 in this population of workers. And as I said, with all 11 the opportunities for confounding to push them to be 12 positive, we still see relative risks less than 1. 13 So all you can say is all the evidence would 14 suggest that what these people do is not increasing 15 their risk of mesothelioma. 16 Q Let's go back to that confounding possibility 17 in the questions we had earlier because I've been 18 thinking about that since that time. The unknown 19 exposure possibility of a confounder, would tend to 20 work towards the null? 21 A That's right. No, we tend to work toward above 22 the null. The null would be seeing no difference. If 23 there is confounders in this case, that is, the only 24 way it would be confounding the other way was where you 25 were going before, where as if you had population that 5 5 2 555 5 55 5 5ST! ?* m S S S n ?^St r? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 really weren't exposed to brake dust that were in the Page 251 2 cohort. 3 But it's more likely than not that these people 4 had exposure to asbestos or that they have forgotten or 5 haven't reported or weren't asked about in this epi 6 studies. 7 Q To the extent these individuals have 8 mesothelioma from exposures that they don't know of or 9 that they've forgotten or haven't reported, those 10 exposures would exist both in the population of 11 mechanics and nonmechanics? 12 A That can also happen. 13 Q Okay. And we have no reason to believe that 14 mechanics versus nonmechanics would have those recall 15 biases at different rates? 16 A That's probably why epidemiologists aren't 17 surprised at these results. 18 Q Okay. Now the weight of the evidence 19 regarding no increased risk comes back to the 20 epidemiology studies that are on Exhibit 15; is that 21 right? 22 A Oh, no, I mean Tate and Goodman talk about 23 reliance on 17 to 23 studies. I just happened to use 24 these because they tend to be the ones that most of the 25 epidemiologists think are the most solid. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 252 1 Q Tate and Goodman's paper evaluates the quality : 2 of most epidemiology studies? ; 3 A That's right. . 4 Q Would you agree that they think the quality of 5 those studies is generally poor? 6 A Are you talking about the case control studies 7 or about all the studies? I 8 Q I'm talking about the studies you just j 9 referred to. 10 MR. LANKFORD: Vague and ambiguous. < 1 11 MR. RUCKDESCHEL: I just asked if he would j 12 agree. 13 MR. LANKFORD: Well, you're saying everything 14 that is not on Exhibit 15? ; 15 MR. RUCKDESCHEL: No, that's not what I'm ! 16 saying. 17 THE WITNESS: I understood the question. 18 Can I have the question read back, please? j 19 (Record read.) :1 20 THE WITNESS: That wasn't what I took from this i 21 paper. 22 BY MR. RUCKDESCHEL: i s 23 Q Okay. 24 A I did not get the impression that they thought 25 these six or seven case studies were poor. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 253 1 Q Fair enough. If the rate of disease is low 2 but real as a result of exposure to'a particular 3 substance, would you agree that epidemiological studies . | j 4 will have difficulty detecting an increase in risk if 5 there is also a background rate of the disease? j 6 A That's more difficult. j 7 Q Okay. I saw in one of your papers from many 1 8 years ago a chart, death statistics from 1974. And I 9 was shocked to see that 16,700 and something people a 10 year in that time died from falls. 11 A It's an amazing thing, isn't it? 12 Q It's shocking. 13 A It is shocking. : 14 Q That is the background rate for falls and 15 deaths in the United States. ; 16 A You know that's why we among other reasons we 17 use a threshold of 1 of 1000 in the workplace. ; 18 Q The fall risk? 19 A No, it's just the accidental death risk. 20 Q Okay. ; 21 A It's so high, if they try to minimize gasses 22 and vapors to lesser risk is caught in the noise. ; 23 Q Millions of people every year jump out of ; 24 planes with parachutes on? : 25 A That's a big number. I doubt that. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Lots of people every year. Let's use Page 254 2 something nonquantitative. Lots of people skydive? 3 A Counsel, I thought you would wear me down 4 before time wore you down today. 5 Q Lots of people skydive? 6 A Yes. 7 Q Very few people die of skydiving? 8 A I don't know that. I know it'shard to get 9 insurance if you.claim to be a skydiver on so they must 1 10 be losing some every year. 11 Q I'd like you to assume if we were to go to the \ i I 12 skydiving association and pull up the numbers, number j 13 of jumps a year and number of deaths a year. 14 A Yeah, I think it must be low because former 15 President Bush did it. So I'll assume it must be quite 16 low. j 1 j j i J 17 Q That assumes rationality amongst our former 18 president, but I'll accept that. .. 19 If in fact lots of people skydive and very few f 9 20 people die from skydiving, and there is a substantial ; 21 background rate of death from falls in the United 22 States, would you agree that the relative risk of a 23 death from skydiving is likelyto be undetectable in an j 24 epidemiological study? 1 25 A That would be true if they lumped them together ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 but I'm sure they not lumped together. Page 255 2 Q Okay. 3 A Falls from skydiving would be categorized 4 differently epidemiologically. 5 Q But if we categorized jumping out of a plane 6 and not having your parachute open as a fall, which it 7 certainly is, the risk of dying from a skydiving fall 8 would be undetectable -- 9 MR. LANKFORD: Objection. 10 BY MR. RUCKDESCHEL: 11 Q -- given the background rate of death from 12 falls in the United States? 13 A If you didn't know the way, the situation 14 behind the falling death, the data wouldn't be 15 available for you to know. It's not that it's 16 statistically not significant. You just wouldn't know. 17 I know where you're going and unfortunately the 18 analogy is just a little bit short of what you want it 19 to be. 20 Q I'm not through with it. Let's fool around 21 with it a little. 22 A Okay, we can. If it works it would be very 23 good, but I don't think it's going to work for you. 24 Q I don't know. I'm trying to dumb it down 25 because that's what I do. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 256 1 . A It would be great for a jury if you can get it 2 to work but I don't think it's going to work. 3 MR. RUCKDESCHEL: Let's change the tape. 4 THE VIDEOGRAPHER: This ends Tape 3. Off the 5 record. The time is 4:51. 6 (Brief recess.) 7 THE VIDEOGRAPHER: We're on the record. The 8 time is 4:54. 9 BY MR. RUCKDESCHEL: ' 10 Q Dr. Paustenbach, let's talk a little more 11 about skydiving. l i ui 12 A Sure. 13 Q I'd like you to go ahead and assume that a 14 million people a year skydive? j 1 j 15 A Okay. 16 Q And that 10 of the million have their 1 17 parachute not open and die from a fall? 18 A Okay. 19 Q That's a rate of one in 100,000? 20 A That's right. 21 Q And we can all agree that it may not be the 22 fall that killed them but it's certainly the sudden 23 stop at the end? 24 A I can agree with that. 25 MR. LANKFORD: Well, heart attack. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 BY MR. RUCKDESCHEL: Page 257 ! i 2 Q We got to keep things simple here. We got ; 3 about 300,000,000 people in the United States now? 4 A I think that's about right. j 5 Q Roughly 300,000,000. And if we assume that ! 6 15,000 , to keep the numbers round, die from falls each 7 year, what would the rate be? 8 A It looks like about 1.5 in 30,000; is that ! 9 right? 10 Q Yeah. So that would be 1 in 20,000? 11 A 1 in 200,000. But that doesn't sound right. j j 12 Q I think its 20,000? 13 A You think it's 20,000. Let's say it's 1 in . 14 20,000 15 Q Okay. In that example, the rate of deaths 16 from skydiving is 1 in 100,000, and the rate of deaths j 1 1lY,1 - ' 17 from falls, the background rate of deaths from falls in 18 the United States is 1 in 20,000, correct? ! 19 A Maybe I didn't follow you properly. Can you go 20 through the scenario one more time? There are 300,000 21 Americans? : 22 Q 3,000,000,000 Americans. 23 A 3,000,000,000 Americans. 24 Q 15,000 die from falls each year? 25 A Okay. ; ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q A million people skydive. Page 258 2 A Each year. 3 Q Each year, 10 die,, as a result. 4 A Okay. 5 Q So 1 in 100,000. 6 A Right. 7 Q So the rates are 1 in 100,000 in the example 8 for skydiving, 1 in 20,000 for the general population. 9 A Okay. 10 Q If one were to conduct a study, an 11 epidemiological study of skydivers to see if they were 12 at an increased risk of death from falling, in the 13 example that we've just have gone through would you 14 agree the study would be unlikely to come to the 15 conclusion that skydivers were at an increased risk of 16 dying from a fall? . 17 MR. LANKFORD: Objection. 18 THE WITNESS: No, I wouldn't agree with that. 19 Because by the very nature of the study you just set up, 20 because you're looking at skydivers and death due to 21 skydiving, you'd have all your own data to make your own 22 inference. 23 I know what you're trying to do and I can't 24 make the example work the way you want it. 25 Q So let's do it as cohort study instead. ESQUIRE DEPOSITION SERVICES (415) 288-4280 J 1. A Okay. Page 259 2 Q Let's look at people who died from falling. 3 A Okay. We're going to start with 300,000,000 : 4 Americans? ; 5 Q We have 300,000,000 Americans and we have 6 15,000 that die from falls. In that 15,000 we have the 7 10 that died from skydiving. j 1 8 A 1 in 20,000 persons per year falling and dying, 9 right?. j I 10 Q Right. 11 A Okay. And we haveskydivers? 12 Q Right. We'vegot 15,000 deaths from falls, 13 14,990 in the United States are from falls other than 14 skydiving and 10 are from skydiving. 15 So if we were to do a cohort study that looked i 16 at people that had the condition, death from a fall, 17 and we were to try and determine whether those 18 individuals had in a cohort study we come up with an 19 observable risk, and we're looking to see whether they 20 were undergoing the activity or not, correct? 21 A You could do that. 22 Q Okay. So would you agree that we would be 23 unlikely to find a higher observable risk for skydivers 24 than nonskydivers in that cohort study? . 25 MR. LANKFORD: Objection. i ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 260 1 THE WITNESS: Can I hear the question again? 2 (Record read.) 3 THE WITNESS: You couldn't say that because you 4 always know that they died from skydiving. That's the 5 problem with your example. Since you're introducing 6 that knowledge. If you said now we didn't- know anything 7 about who the 10 people, then I could agree with you. 8 If we had no clue that they were there, but then you ! i $1 9 wouldn't be able to answer any question about skydivers. 10 BY MR. RUCKDESCHEL: 11 Q I want you to assume. Doctor, we're doing a 12 study from a public health perspective whether we want 13 to outlaw skydiving. And so we take a look and say, 14 well, are people that skydive at a greater risk from 15 falls than people that don't. And then we take a 16 cohort of individuals that have died from falls and we 17 look to see how many skydived and how many of them 18 didn't. Is that how the study would be arranged? 19 A Probably, mm-hmm. 20 Q Would you agree that study would be unlikely 21 to find a statistically increased risk of death from a 22 fall amongst skydivers when compared to nonskydivers 23 given the rates of death from falls that we have here? 24 A Given the facts you're having me accept here? 25 MR. LANKFORD: Objection. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 BY MR. RUCKDESCHEL: Page 261 2 Q Yes. 3 A If the rates turned out to be very similar, 4 let's say 1 in 20,000 you wouldn't be able to tell the 5 difference. 6 Q And if the rates were as in my example where 7 the rate of deaths from skydiving is below the 8 background rate it would be even more unlikely? 9 A It would be even more unlikely, that's right. f 1 | iI 10 Q Okay. Look at how many pages we flip. 11 Would you agree that companies that 12 manufacture products have the primary responsibility j! 1 13 for the safety and health of the community that use 14 their products? With respect to use of the product? 15 A I think so. 16 Q Okay. Would you agree that suppliers of l ij 5 1i 17 products have a duty to notify customers of the 18 presence of a toxic component in their products? 19 A Only when the risk is considered worthy of 20 being shared with others. ' 21 Q Would you agree that one needs to perform an 22 analysis of the level of risk before one can make that 23 determination? 24 A If it's not intuitive that there is no risk. 25 Q Okay. Should companies when designing new ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 products consult with medical and industrial hygiene Page 262 2 professionals to make sure that hazardous materials 3 that are incorporated into those products don't pose a 4 safety risk? 5 A They ought to think about it. I don't know if 6 they have to talk to hygienists or occupational 7 physicians but people who are qualified to understand 8 the issue should be consulted. 9 Q In one of your papers, I'll figure out which 10 one it is. While I look I'll give you the setup of the 11 question. In one of your early papers, Doctor, you had 12 a chart that had four types of -- well, let me get it 13 before I do this. I've been so organized all day, and 14 now this. 15 Doctor, I'm going to mark as Exhibit 19 - 16 MR. BURKE: Excuse me, I don't know if it's my 17 phone or the connection but suddenly I could barely hear 18 you all. 19 MR. RUCKDESCHEL: I'll speak up. 20 MR. BURKE: It doesn't sound like it's you not 21 talking at the right level. I think there's a technical 22 thing. 23 MR. RUCKDESCHEL: It's not from us because 24 nobody has touched the phone. Is that better? 25 MR. BURKE: A little bit. I may get off and ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 just call back in to see if it's my line. Page 263 2 Q All right. 3 MR. BURKE: Thank you. 4 (Plaintiffs' Exhibit 19 was marked for 5 identification by the court reporter.) 6 BY MR. RUCKDESCHEL: j 7 Q Dr. Paustenbach, I'd like to show you a copy 8 of a paper titled, "Analysis Techniques Help IEs 9 Evaluate Ethical Dimensions of On-The-Job Decisions." ,4 s > ; 10 Is this an article that you wrote? 11 A One of my first papers, yes. 12 Q And it was published in what journal? ; 13 A Industrial Engineering. 14 Q And that was in April of 1984, right? |J: ; 15 A Yes. 16 Q I'd like you to turn to Page 70, which is the 17 third page. Can you tell me basically what this paper 18 was about? I know you may need to take a minute to ; 19 sort of refresh your recollection. 20 A Okay. 21 Q Can you tell us a little bit what this paper 22 was about, just sort of generally? : 23 A Yes, a colleague and I chose to write this. I i 24 was giving some lectures at the University of Virginia 25 with him , and we thought this would make for a good '; ! ESQUIRE DEPOSITION SERVICES (415) 288-4280 .. .. . . Page 264 1 case study in the business school. And this is in fact 2 what this is, this is a paper that evolved from a 3 business school case study. And we were trying to get 4 engineers and business men to think about risk issues 5 and safety issues. 6 Q And on Page 70 you list, you provide a table, 7 Table 1, Classification of Hazards. Can you tell me 8 what that table sort of sets forth? 9 A It sets forth the difference between product 10 hazards and workplace hazards, and those that result 11 from or those that produce acute injury versus chronic 12 injury. And the sources for those kinds of injuries. 13 Q In the text on the left-hand column towards 14 the bottom there is a section that says quote: 15 "Numerous examples of these types of 16 events have been recorded in the media 17 and could be classified according to this 18 scheme." 19 A Mm-hmm. 20 Q And that's the scheme-of product versus 21 process, and acute versus chronic hazard? 22 A Right. 23 Q And then you provide four examples. 24 A That's right. 25 Q And the first example is death and injuries ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 resulting from automobile gas tank explosions? Page 265 2 A Right. 3 Q Were you referring to the Pinto? 4 A I didn't have one in mind at that time but my 5 colleague may have been thinking about the Pinto. 6 Q Okay. Was this something that your colleague 7 wrote? 8 A This table? 9 Q This section, do you recall? 10 A It was his idea to put them in a category so 11 they could be mathematically analyzed. Because this is 1 1 | i ii ! \ ; 12 a decision analysis paper. 13 Q And your talking about the decision-making 14 process of industrial engineers? 15 A Yes. 16 Q And how that relates to ethics in the 17 workplace? . 18 A Yes. 19 Q All right. 20 A I just don't recall if it was the Pinto or not. 21 Q General Motors had an exploding gas tank back 22 in the early '70s, too, didn't they? 23 A I don't know. That's not my area. 24 Q Have you looked at that issue from the 25 standpoint of determining whether General Motors and ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Ford had as corporations reasonable decision-making Page 266 2 process with regard to hazards or potential hazards of 3 their products? 4 MR. LANKFORD: Objection. 5 A I never evaluated the gas tank issue. 6 BY MR. RUCKDESCHEL: 7 Q Okay. And the fourth example there for a 8 chronic process-related hazard is cancer from long-term 9 workplace exposure to asbestos? 10 A Yes. 11 Q It's been a long time since you read it? 12 A It's been almost 20 years. . 13 Q Would you agree it's one thing to chose to 14 subject yourself to a risk, and another thing to 15 subject someone else to that risk? 16 A Sure. 17 Q For example, when youdid yourchromium 18 studies, you didn't just put chromium in the water 19 cooler at McLaren/Hart? 20 A That's right. 21 Q And would you agree that different people have 22 different risk tolerances? 23 A Yes. 24 Q I may choose to ride amotorcycle, somebody 25 else may decide that's too dangerous for them? ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A Correct. Page 267 2 Q But that's a choice that the individual should 3 be allowed to make? 4 A Yes. 5 Q And would you agree that your view, Dr. Dennis 6 Paustenbach's view of what is a reasonable risk is at 7 the high end of our society's range of people's 8 different views of what might be a reasonable risk to 9 undertake? 10 MR. LANKFORD: Objection. 11 THE WITNESS: I. think I would be on the high 12 end with respect to those things I know the most about 13 like chemical exposures, and I'm probably on the low end 14 with respect to safety exposures. 15 Q You drive a Porsche? 16 A Right, I do. 17 Q You drank hexavalent chromium? 18 A Right. ' 19 Q You took a bath in hexavalent chromium for 20 half a day? 21 A . I mean are you applauding me because the 22 Porsche got such a good safety rating in a collision? 23 Because that's supporting my view that I am fearful of 24 acute incident and acute hazard risks, and the chemical 25 risks which I know a lot about I tend to be probably on ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 the higher end because I know quite a bit about them. Page 268 2 Q I understand. 3 A They are a whole different ball game of risk 4 because in the environmental chemical world we tend to 5 sometimes lose sleep over l-in-10,000 and 6 1-in-l,000,000 risks where, we'll do other things like 7 ride bikes. 8 Q Without a helmet? : j 9 A Or even with a helmet. And people would be 10 startled that that's a pretty darn high risk compared 11 to the chemical risk. 12 Just to give an example, nobody thinks about 13 riding a bike as anything but healthy but it's very 14 high risk. 15 Q Riding a bike is a voluntary decision? 16 A Yes, sir. 17 Q The hazards of riding a bike, while maybe 18 underappreciated, are obvious. ? -! i j i i j j ! | j j 19 A I don't know is they are very obvious but they 20 are certainly under appreciated. 21 Q Well, you could get hit by a car riding a j | j 22 bike? 23 A I think if people saw the chart every morning 24 as to the risks in life they would change their 25 behavior. That's my guess. i I i * i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Okay. Page 269 2 A If they were informed of the risks they would 3 change their behavior. 4 Q If there is a l-in-10,000 risk of contacting 5 mesothelioma from exposure to brake dust, a real 6 hypothetically real l-in-10,000 risk? 7 A For a lifetime mechanic. 8 Q For Joe Mallia, let's just assume there's a 9 real l-in-10,000 risk. Would you agree that for Joe 10 Mallia that is a significant risk? 11 A I don't know why I would infer that. i <s . 12 Q Well, he's going to die. 13 A You're referring it has to do with the brake 14 exposure which would be an incorrect inference. If you 15 knew it was then I suppose we might have something to 1 : , 16 talk about. 17 Q If there was a real l-in-10,000 risk of Joe 18 Mallia getting -- 19 A You have to have two assumptions then, Counsel, 20 one if it's a real l-in-10,000 risk; and secondly his 21 disease is associated with exposure. You don't have 22 either one so it's probably not a good hypothetical for 23 me to answer.. 24 Q If it's a real l-in-10,000 risk for Joe Mallia 25 based on his work exposure, work history to develop ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 mesothelioma, should Joe Mallia have been given the Page 270 2 choice whether to work with asbestos or nonasbestos 3 brakes? 4 MR. LANKFORD: Objection. 5 THE WITNESS: I think what you're really asking 6 is if at the time he was working on brakes, society knew ; 7 there was a l-in-10,000 lifetime increased risk, should ' ; 8 he have been told there was a l-in-10,000 increased risk j 9 so he could decide if he wanted to be involved with 10 brakes. Is that your question? 11 BY MR. RUCKDESCHEL: i | 12 Q It's not my question but I'll take that 13 question. 14 A Then and now, that level of risk in the 15 workplace is not one that we consider significant | 16 enough to provide a quantitative estimate of the risk 17 to the worker for purposes of decision making. I'm not 18 weighing in on that. I'm just telling you the way 19 things are. 20 Q When Joe Mallia worked on his own personal 21 vehicles is that a workplace risk? 22 A I don't know how it's categorized. 23 Q How do you categorize it? 24 A I don't think I'd call it a workplace risk 25 Q Going back to the things that I personally ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 think show that you may have a higher risk tolerance Page 271 ; 2 than. for example, I do, you and your colleagues did 3 soak in a hot tub with chromium-laced water for half a 4 day? 5 A Yes. 6 Q And you participated in I believe one brake 7 replacement operation in July of 2002; is that correct? 1 J! 1 > 8 A I think that's the right date. 9 Q All right. And that involved a '57 Chevy with j 10 asbestos-containing brakes? 11 A Right. 12 Q And you blew out the drum? i{ j 13 A Yes. 14 Q And there was wear dust in the drum? 15 A Yes. 16 Q And the wear dust was measured, correct? 17 A Correct. j i j 18 Q ' And you didn't wear any respiratory 19 protection? 20 A That is correct. 21 Q And you made that conscious decision? 22 A Yes. 23 Q Are there any other, I don't know how to put 1 S i i j 24 this in any other way, are there any other experiments | 25 that you have done on yourself that are analogous to ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 the chromium experiments but with other toxins? Page 272 i 2 A Well, you make it sound a bit ghoulish. 3 Q I know, and I apologize, but I don't know any j 4 other way to put it. 5 A I have done other studies where there's been 6 resultant exposure but it would be no different than 7 what people do everyday. You know, we have literally 8 millions of Americans that go to work everyday and are : i j 9 exposed to much higher chemical concentrations of 10 xenobiotics than I have exposed myself to in various j) l 11 studies. I mean it's a fact of life. I mean if you 12 had a salad for lunch today you'd be exposed to quite a j I 13 number of carcinogens. 14 Q In fact I did. The other studies -- j | j 15 A I assume you weighed that risk. I mean I 16 actually have, I'm aware of my colleagues have done 17 studies of people that eat salads all day and then they 18 measure the dioxin-like materials that are naturally 19 occurring and they can see the difference in people 20 that are eating a lot of salads. 21 Q Regrettably like a second year med student I 22 have too much information about toxins for my own good. 23 A ' I did not participate in the salad study. I 24 did, as you know, conduct the Bakelite study where I 25 got exposed to asbestos fibers from the Bakelite. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Okay. Any other studies where you were Page 273 2 exposed to materials that are considered to be toxic at 3 various doses? 4 A I've been known to drink a glass of wine and 5 beer and . . . 6 Q Sure. 7 A The toxicity and theoretical risk are fairly 8 high with those. * \} t 9 Q Well, I understand and I see very little 10 benefit to Dennis Paustenbach of exposing Dennis 11 Paustenbach to asbestos dust from Bakelite. I see the 12 benefit of getting a glass of wine if you have a glass 13 of wine. So I'm concerned with the former examples. 14 I'm just asking you to list for me any other studies i iJ j j j 15 you may have done where you may have knowingly exposed 16 yourself to toxins you may have been involved in with i 17 your work. 18 A Well, I can't think of any right now. 19 Q Okay. You haven't done so with benzene or 20 with dioxin? 21 A Not where I've done a study where I tried to 22 evaluate exposure, no. 23 Q In other cases? 24 A No, that's what I'm saying, I can't think of a 25 scientific study where I got exposed to some agent. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 274 1 Q I understand. So let me ask the question can 2 you think of unscientific studies where you've done it? 3 A Sure. I'm an antique collector so I used paint 4 stripper and expose myself. I have a stainless steel 5 bathroom sink and I use stainless steel cleaner on it 6 everyday and I know it contains five or six agents. I 7 clean my shower with Lysol which has incredibly ,8 irritating components to it and I use it. 9 Yeah, I do it all the time. I fill my gas tank 10 and I get exposed to benzene every time I fill my gas 11 tank. And I guess get exposed to I guess about 12 al-in-100,000 risk when I fill my gas tank due to the 13 benzene and the leukemia risk. Yeah, I do it all the 14 time. You do, too, probably. 15 Q Let's confine to it yourprofessional life, 16 though. 17 A Well, that isn't what you said. 18 Q No, I said unscientific. I meanapparently 19 the box opening study was unscientific but professional 20 experience. So let's stick with professional 21 experiences, any other studies where you have knowingly 22 exposed yourself to toxic materials that you were 23 studying. 24 A Again, you know, you can't make it less than 25 inflammatory so I don't have anything also to say. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 275 1 Q Well, I know, but I need to know the answer to 2 the question if you've done it. 3 A Again, I've been as forthright as I can be. I 4 cannot think of another study that seems to fit in that 5 box. : 6 Q Okay. 7 A I've done other studies but I don't think they 8 fit in that category. ' 9 Q Okay. Tell me what other studies you're 10 thinking of and what category they might fit into and 11 then I'll move on. - 12 A Well, I did the diesel engine study with the i j 1 1 ? i j | j j 13 railroad, and I ended up wearing a respirator in that j 14 study because I thought it was too irritating not to. ] 15 Q Okay. In your 2004 paper, the 16 state-of-the-art paper, there are a number of citations 17 throughout the paper to personal communications with ! 18 Arnie Anderson; is that correct? 19 A Yes. I don't look at the number but I 20 certainly cite them. 21 Q Okay. Did you take any notes in those ! 22 conversations? 23 A No. j 24 Q Do you have any, anything other than the 25 finished paper itself that reflectsthose conversations ; ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 other than what might be locked in your mind? Page 276 2 A No. 3 Q Okay. Did you speak with other employees of 4 Ford, General Motors or Chrysler during the drafting of 5 those papers.about the topics of those papers, the 2003 6 paper and the 2004 paper? 7 A I think I've said before that I talked to Bill 8 Krebs before I finished that paper. 9 Q Did you talk with Mr. Toth during the 10 authorship of those papers? f : \ ] 1 ij 11 A I don't think I saw him during the authorship. 12 I don't recall if it was before or after the paper was 13 accepted or not. I don't remember. Obviously whatever 14 I talked to Paul about didn't have much impact on the 15 paper. 16 Q The propositions in the paper for which you < 1 s 17 cite your conversations with Mr. Anderson as the source 18 of the information, do you have other authority for 19 those propositions or are.you relying upon Mr. Anderson 20 for them? 21 A That's a good question and it's not been asked 22 before except outside a deposition. I do. And in 23 retrospect I probably should have just cited those. 24 Q It's important from a reader's perspective in 25 critically evaluating a paper. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 277 1 A I have, and somebody called me on that actually 2 and asked did I have a citation that would back that up 3 other than personal communications. So I've already 4 thought about this and it's been raised to me 5 professionally. j ] 6 Q It's an issue of transparency? 7 A I don't know if I'd use that term in this case. 8 Not so much transparency but ease of validation. 9 Q It's not easy to verify conversations you had j ( J ! | 10 with Mr. Anderson? f 11 A That's right. 12 Q On the other hand, I could go down to the 13 library and pull a paper you cite and see if I agree 14 with your citation in a paper? ; i 15 A That's right. i 16 Q In your professional life you have been 17 involved in at least two of what are in the public's : 18 minds and perhaps the engineering profession's minds, i 19 two of the largest environment disasters in our 20 country's history, Love Canal and Times Beach. Would j 21 you agree? 22 A I've done risk work on both issues, that's ; 23 right. 24 Q And your conclusion in both was that there was 25 no increased risk to the individuals in those areas ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 from the contamination; is that correct? Page 278 ; 2 A No. . j 3 Q Okay. Was there an increased risk to 4 individuals in the area of Love Canal, from the 5 contamination in Love Canal? 6 A That question is way too broad to answer. We'd 7 have to have a lot of time. A lot of time to deal with 8 that. ' . 9 MR. LANKFORD: Objection. ' 10 THE WITNESS: I mean there's got to be a bunch | i j l f 11 of objections to this one in. But nonetheless, let me 12 say this: On Love Canal there were portions of the ; \ | 13 community that probably required remediation for sensory 14 reasons if nothing else. That is to say, there were 15 odors that needed to be dealt with. And then there was 16 also the aesthetic reasons associated with Love Canal. f j A : 17 And I think there were several reasons that 18 required actions be taken at that point that weren't j 19 necessarily related to acute or chronic health risks. ! 20 And I think the historical record would support that. 21 So something needed to be done but I'm not so sure it i 22 was due to acute or chronic health risk. 23 Q It might have just been because of stink? : 24 A Well, and visuals. I mean the drums at times ! 25 in the spring would pop up. But that's a long j ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 279 1 complicated story. You know, they weren't supposed to 2 develop the land in the first place. i 3 Q What about for Times Beach? 4 A Times Beach is a complicated issue as well but ; 5 I'd have to say remediation had to occur at Times i 6 Beach. The health risk thus far, the health risk, I 7 think most people think there are no direct or 1 ] 8 attributable health risks to the exposures at Times 9 Beach. There is no evidence for that. What I can say 10 is there was dioxin and it elevated the blood levels of 1 ; ] 11 some of the people in a small way, and the only case 12 report that I think still is unclear out of Times Beach 13 is one or two of the children, and I don't remember if 14 that was in Times Beach or at the horse arena. 15 Again, those two issues were addressed as a 16 result, ultimately were addressed I think due to the 17 difficulties of remediating with the community still in 18 place. It was just easier for the people to move out 19 until the towns were dealt with. 20 Q In this case you have evaluated at least 21 qualitatively Mr. Mallia's exposures to asbestos from 22 his work as a mechanic? 23 A Yes. 24 Q Would you agree that exposure, whatever it is, 25 the portion attributable to Chrysler is in your word ; ; : j1 ; : i : : : i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 vanishingly small? Page 280 2 A You said Chrysler? 3 Q Chrysler. 4 A Yes. 5 Q Or zero? 6 A Vanishingly small or zero. 7 Q Okay. What about Caterpillar? 8 MR. LANKFORD: Same objection. Or objection. 9 Go ahead ' 10 THE WITNESS: Do you want me to answer it? 1 1 ! ! 11 MR. LANKFORD: If you can. 12 THE WITNESS: Can I have the question again? ! 13 BY MR. RUCKDESCHEL: 14 Q The question was what about Caterpillar? 15 A I'd like to hear a complete question. 16 Q . Absolutely. I think that's fair. Mr. Mallia 17 work for Caterpillar equipment? 18 A Yes . 19 Q You've read his testimony in that regard? 20 A Yes . 21 Q That work involved working with disk brakes? 22 A That's what he said. 23 Q Okay. To the extent that Mr. Mallia's work 24 working with Caterpillar equipment was accurate, would i 25 you agree the proportion of the dose of asbestos that ESQUIRE DEPOSITION SERVICES (415) 288-4280 i i j Page 281 1 Mr. Mallia received as a result of working with brakes, 2 the proportion of Caterpillar exposure is vanishingly 3 small or zero? 4 MR. LANKFORD: Objection, are you talking about 5 occupational, nonoccupational, all? 6 BY MR. RUCKDESCHEL: 7 Q All. 8 A I wouldn't want to say on a percent basis 9 compared to let's say brake wear debris from Ford, 10 General Motors, if you're trying to say on a percent 11 basis which one of the four possible exposures was most 12 significant, I'm going to struggle with that, but I can 13 say the exposures were very, very small as a result of 14 working on Caterpillar equipment. 15 Q And when you say very, very small you mean in 16 comparison to whatever dose Mr. Mallia received, the 17 Caterpillar dose is a very, very small proportion? 18 ,A Well, they are all unimportant but I would say 19 if you had to say relatively on a mass basis of brake 20 wear debris for which there was potential exposure, I 21 would say Chrysler and Caterpillar were awfully small. 22 Q Okay. Mr. Mallia in his lifetime wasn't just 23 exposed to just brake wear debris, though? He was also 24 exposed to dust from the manipulation of new brakes? 25 A Yes, and I think he even mentions clutches as Tfisf&tSiXMSTBi. S4**i-*ii***ji ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 well. Page 282 2 Q Right. 3 A And gaskets and that area. 4 Q I just want to make sure the record is clear 5 regarding, you say break wear debris often when you're 6 discussing dose and I want to make sure that when we're 7 talking about his lifetime dose, whatever it may be, it 8 involves dust from manipulation of handling and 9 manipulation of new brakes, brake wear debris, clutch 10 debris. Do you believe he was exposed to asbestos from 11 gaskets? ' 12 A If he was it would be very small. 13 Q Okay. And when you say very small do you mean 14 as a percentage of his total lifetime exposure from his 15 work as a mechanic? 16 A The sum total of exposure to asbestos and brake 17 wear debris as a result of working with brakes is very 18 small. 19 Q I understand what you're saying. 20 A Yes, and I think where you're going, and I'm 21 surprised you haven't drawn a pie chart, we can draw a 22 pie chart here if you wanted. 23 Q Sure. 24 A But let's just start by saying it's very small 25 Chrysler, it's very small Caterpillar and this would be ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 a complicated chart because it's got gaskets in it, Page 283 2 it's got clutches in it, it's got brake wear, and then : 3 it's also got nonworn material. Do you really want to 4 do all that? . 5 Q I have to do it. I have to do it. You 6 brought it up. I have to do it. So we'll mark this as 7 Exhibit 20. 8 (Plaintiffs' Exhibit 20 was marked for 9 identification by the court reporter.) I 10 BY MR. RUCKDESCHEL: ; 11 Q And let's just do a little pie chart 12 qualitatively. j 13 A Do you want me to take control of thisor do 14 you want to ask me a question? 15 Q I'd like you to draw a pie chart that . 16 qualitatively represents as a whole Mr. Mallia's 17 lifetime dose of asbestos from working as a mechanic as ! 18 described in his depositions. . 19 And then I'd like you to divide that pie chart ; | 20 up qualitatively to show the proportion represented by 21 work with gaskets, work with Chrysler and work with 22 Caterpillar. And let's call it Daimler Chrysler so you 23 can use a D on that little pie, that little piece. ; 24 MR. LANKFORD: And you want him to factor as to 25 all other or do you want him to break down every single ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 manufacturer. Page 284 2 MR. BURKE: Let me object to the form of the 3 question. I don't think you can draw a pie chart that 4 represents a qualitative difference. 5 MR. RUCKDESCHEL: Okay. 6 MR. BURKE: Because if by chance - 7 MR. RUCKDESCHEL: Your objection is noted. 8 MR. LANKFORD: While he's doing that can you 9 pose the question again, restate it? I'm not sure I 10 know what you're asking. 11 BY MR. RUCKDESCHEL: 12 Q I was asking him to draw a pie chart, the 13 whole of which would represent Mr. Mallia's lifetime 14 dose of asbestos from his lifetime as a mechanic and 15 then to draw in there the pieces of the pie that he 16 would attribute to Chrysler, Caterpillar and gasket 17 work. ' 18 A I think this is pretty much the spirit of where 19 I was going. 20 Q Explain this to me, sir, what is represented 21 there? 22 A In the first pie chart if you will, which is 23 without pieces of the pie, these are the sources of, 24 possible sources of asbestos in air as a mechanic. 25 The other one is possible suppliers of parts. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 285 1 MR. LANKFORD: Well, let me object to the 2 question. Dr. Paustenbach hasn't been asked to break 3 down I guess the friction exposures by all possible 4 contributors or I should say the automotive by all 5 possible contributors, and I'm not sure he's been given 6 the material to do so. 7 MR. RUCKDESCHEL: It's objection, form, under 8 Florida law, as Mr. Burke will be happy to point out to 9 you. 10 MR. LANKFORD: And that as well. 11 BY MR. RUCKDESCHEL: ' 12 Q Thank you for doing that,Doctor. It's not 13 what I was looking for but we're not going to redo it. 14 I asked you earlier, Doctor, if you had a 15 thorough work history of or careful I think was the way 16 I phrased it, a careful work history of a brake 17 mechanic who developed asbestosis whether you would 18 need an epidemiological study showing a relative risk 19 of over 2 to attribute that worker's asbestosis tohis 20 work as a brake mechanic. Do you remember that 21 questioning? 22 A Yes. 23 Q I'd like to ask you the samequestion with 24 regard to mesothelioma. 25 A It's a different answer. ESQUIRE DEPOSITION SERVICES (415) 288-4280 I 1 ,1 1 | j 1 Q What is the answer? Page 286 2 A I don't have any evidence that would link his 3 work.as a brake mechanic to mesothelioma. You can 4 envision under some bizarre situation where he would 5 get huge doses of dust and possibly get asbestosis, but 6 I wouldn't have any evidence to suggest that it would 7 cause mesothelioma. ' 8 Q Would you agree that the exposure levels of 9 both a peak and time-weighted average for mechanics who 10 work with truck brakes are higher than the exposure 11 levels of mechanics that work with car brakes? 12 A It depends on the time frame, but generally if 13 you were going to look back to the 1970s and '80s I'd 14 say that's true. 15 Q And part of that is because truck brakes are a 16 lot bigger than car brakes? 17 A No. 18 Q What is it due to? 19 A It's due to he way you interact and handle - 20 the whole way you do a brake job on a truck is 21 significantly different. I've been through this line 22 of questioning before about the size of a Caterpillar 23 brake lining versus a truck versus a car. That's not 24 the driving factor. It's other things. 25 Q Tell me what those other things are. ESQUIRE DEPOSmON SERVICES (415) 288-4280 Page 287 1 A It has to do with whether you have rivets or 2 not, whether you have to remove the residual lining and ; 3 buff the metal plate underlining it. It has to do with ; 4 whether you have to cut from a sheet to make the brake 5 for the truck. And drilling. I think I already 6 mentioned drilling. It depends on that and on 7 engineering controls. 8 That's why I say it's very time dependent and 9 you can' t generalize. Sometimes the brake comes to you | 1 j 1 i 10 already bonded, and other times it doesn't so... 11 Q What types of truck brakes did Joe Mallia use, 12 bonded or did he rivet them himself? 13 A I don't recall from the testimony. 14 Q If we assume that he used bonded brakes? 15 A My recollection is I would expect for the 16 trucks he looked at they were bonded. 17 Q Let's just go ahead and make that assumption, 18 that he used bonded brakes? ; 19 A Mm-hmm. 20 Q Would you agree that Mr. Mallia's beveling of 21 the truck brake would cause a larger release of dust 22 than his beveling of a car brake? | 23 A We'd have to go back and look at the testimony. j 24 I'm not so sure he said he beveled truck brakes. 25 Q I'd like you to assume for purposes of our i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 assumption that Mr. Mallia beveled truck brakes and a Page 288 2 car brakes in a similar fashion. Would you agree that 3 the beveling of the truck brakes would release a larger 4 quantity of dust than beveling of the car brakes? 5 MR. LANKFORD: Objection as to form. 6 THE WITNESS: Perhaps on a per-car basis. On a 7 lifetime basis I would expect if he did what he said he 8 did, the cars would contribute more to the dust. 9 BY MR. RUCKDESCHEL: 10 Q If we look at one truck brake beveling, one 11 shoe? 12 A And you want me to assume he beveled the same 13 way and he beveled more mass off the truck, right? By 14 definition you'd expect there'd be more dust. 15 Q Well, and that's what it is. The truck brakes 16 are bigger and if you file them the same way that you 17 file a car brake you're going to have to file off more 18 material? 19 A I believe it's probably not credible that he 20 filed and beveled truck brakes. 21 Q If Mr. Mallia testifies that he did so, it's 22 your opinion that his testimony is not credible? 23 A It would be an unusual practice. He may have 24 done it, certainly. I have no reason to question what 25 he's testifying to. But it would be unusual and I ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 would be surprised if anybody ever taught him to do Page 289 2 that. 3 Q Why would it be different for trucks than for 4 cars? 5 A Because you're trying to minimize the squeak, 6 and normally this is not a big factor on trucks. It's 7 not the same issue. 8 Q Did Mr. Mallia have formal training in auto 9 mechanics? 10 A I didn't read about it. 11 Q Did he have formal training in truck 12 mechanics? 13 A I didn't read about that either. 14 MR. RUCKDESCHEL: Let's take five. I think 15 we're almost done. 16 THE VIDEOGRAPHER: Off the record. The time is 17 5:45. ' 18 (Brief recess.) 19 THE VIDEOGRAPHER: Back on the record. The 20 time is 5:55. 21 BY MR. RUCKDESCHEL: 22 Q Doctor, you are familiar with Dr. Langer's 23 case report regarding mesothelioma and brake mechanics? 24 A Yes, sir. 25 Q In that case report Dr. Langer found only ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 chrysotile tissue in the mechanic's lungs; is that Page 290 2 correct. 3 A That's what he reported. As I recall. We 4 should probably take a look at that if we're going to 5 talk much about it. 6 Q Sure. Let's go ahead and assume that that's 7 what Dr. Langer reported in that study, that case 8 report. 9 A Sure. 10 Q If that's the case, is it your opinion that 11 that mechanic's mesothelioma is idiopathic? 12 A No. There's too many assumptions in that. 13 MR. LANKFORD: Objection to the form. 14 BY MR. RUCKDESCHEL: 15 Q Okay. Let's get the paper. 16 A I promised your colleague that the hardest 17 questions would be around the bend. 18 Q This is not a hard question. 19 A They're coming. Okay. Is this the one you're 20 referring to? 21 Q No, 92. 22 A It's actually a letter to the editor. Do you 23 have with it with you? 24 Q I don't have a hard copy of it. 25 A I can answer questions about it. My memory is \ ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 fairly good on this. Page 291 2 Q Okay, all right. 3 A But the reason I can't answer it the way you 4 presented it, he had analytical chemistry issues he was 5 concerned with with respect to being able to identify 6 the amphiboles. 7 Q Okay. Let's take ahypothetical brake 8 mechanic. 9 A Okay. . 10 Q You have a brakemechanic thatperformed brake 11 repair operations in the method and manner that Joe 12 Mallia did. I'd like you to assume so. That they did 13 so for the period of 1978-to '83, five years, the 14 nature and frequency that Joe Mallia did. 15 I'd like you to assume that that individual 16 contracts malignant mesothelioma and that they are a 17 47-year-old male. I'd like you to assume that that 18 individual dies as a result of their malignant 19 mesothelioma, and that pathological examination of 20 their lung tissue by a competent pathologist determines 21 that there is a three times background level of 22 chrysotile in the hypothetical individual's lungs and 23 that there are no detected amphiboles in the lung 24 tissue. Are you with me on the hypothetical? 25 A Yes, sir. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Is that hypothetical brake mechanic's Page 292 2 mesothelioma attributable to his exposure to asbestos 3 from working with brakes? 4 MR. LANKFORD: Objection as to form and calling 5 for a medical opinion. Beyond this expert's expertise. 6 THE WITNESS: Could you read the last sentence 7 only of the question? 8 (Record read.) 9 THE WITNESS: I would say that would be 10 insufficient evidence to make that attribution. 11 BY MR. RUCKDESCHEL: 12 Q Why? 13 A Because as I've said the, if the chrysotile can 14 increase the mesothelioma risk, I expect it's either 15 due to dose or fiber length. You would have to have 16 quite a number of cases with an understanding, of 17 similar people like you just described, with an 18 understanding of fiber length, before I would conclude 19 that it was more likely than not to be due to those 20 exposures given what we know today. 21 Q Okay. Let's start with the second part of 22 your statement first. Similar individuals. Has there 23 been an any study that you know of that has attempted 24 to collect cases of individuals similar to Joe Mallia 25 and Joe Mallia's work procedures, and to evaluate their ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 exposures to asbestos in a systematic fashion? Page 293 2 A I think the inferences from the various studies 3 I summarize in my paper should not be much different 4 from Joe Mallia. 5 Q Those inferences relate to groups of 6 individuals who all will have different work practices? 7 A That's right. 8 Q And there has been no study of individuals 9 with work practices specifically like Joe who filed, 10 blew out, cleaned up in the way he did and worked with 11 cars and trucks? 12 A Oh, you'd be I think incorrect about that. As 13 I said, before, I have no problem using that historical 14 database to predict the risk to Mr. Mallia because 15 those studies were conducted in earlier years when the 16 exposures were higher, when grinding or occurred and 17 blow-out was prevalent. And there was no warnings. I 18 mean you got warnings in his era as well. 19 So the fact that he's got warnings and you're 20 comparing him against a cohort that was more exposed is 21 why I can believe that there is no relationship between 22 his disease and his work as a brake mechanic. 23 Q Which of the studies in your 2003 paper 24 occurred during times when there was substantial 25 grinding in your opinion? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 294 1 MR. GIRTMAN: This Ben Girtman. I'm going to 2 register an objection to this whole line of questioning. 3 There is no indication that Dr. Paustenbach can benefit 4 of Stanley Gibson's eight years of taking over his work. 5 MR. RUCKDESCHEL: Ben, it's objection, form. 6 MR. GIRTMAN: I've stated my objection. 7 MR. RUCKDESCHEL: Please don't make speaking 8 obj ections. 9 BY MR. RUCKDESCHEL: 10 Q Do you have the 2003 paper. Doctor? \ 11 A I do but I'll have to hear the question again. 12 Q Absolutely. 13 A I'd like to hear it from the court reporter. 14 (Record read.) 15 (Discussion off the record.) 16 THE VIDEOGRAPHER: Back on the record. The 17 time is 6:12. 18 THE WITNESS: Okay, Counsel, what I had asked 19 is for the last sentence to be read back and I'll answer 20 your question. 21 (Record read.) 22 THE WITNESS: I don't think during the time 23 that these studies were conducted I would categorize it 24 as substantial grinding. But I will state the three 25 times, the three papers where they say grinding ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 occurred. Page 295 2 BY MR. RUCKDESCHEL: 3 Q Okay. 4 A I don't want to characterize it as a time of 5 substantial grinding. 6 Q I didn't think you did. 7 A The best evidence for supporting my argument is 8 really the time frame of when the epidemiology data 9 were collected and analyzed. That is to say, those 10 people in those studies were generally working in 11 the '50s, '60s and '70s. And that is certainly the 12 time when grinding would have been more common. But 13 I'll just say for the purposes of answering your 14 question for the 2003 paper. 15 R'delsperger et al., in '86 mentions that his 16 mechanics are involved in grinding and turning of brake 17 linings as well as blowing out of brakes. Johnson, 18 Zumwald and Roberts in their January 29th, 1979 report 19 mention that they were looking at service operators at 20 least in Facility G and maybe others that involved pad 21 grinding, riveting and punching. It was a truck 22 facility. And I expect, although I haven't looked at 23 it more carefully, I think there is going to be other 24 grinding occurring there. 25 And then in Johnson '76 which is the one I ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 296 1 expected to have the most grinding, it's again Facility \ i 2 G which I think is actually almost the same report. So 3 not a lot of grinding that I can document during this j 4 time period. : 5 Q Was there grinding occurring -- I'm sorry, 6 this is the wrong questions. Let me start out with, j 7 which of the time-weighted average samples that form ! 8 part of the basis of your average time-weighted average j 9 in your 2003 paper involve grinding? ! 10 A You can't tell because the descriptions of 11 these workers is such that I have to infer it'spart of i if 12 their daily practice, even thoughI know during this ! 13 time period grinding was decreasing. As you know from 14 the discussion I mentioned this. I can't tell you 15 which employees when sampled with involved in grinding 16 and which were not. 17 Q How many of the time-weighted average samples 18 included in the time-weighted average samples that 19 formed your average occurred during a time when there 20 was substantial grinding? 21 A Well, I don't want to say substantial grinding. 22 I just want to say during the era collected -- ; 23 Q Okay. ; 24 A -- there was grinding occurring. I'm not going j 25 to say it was substantial during that era. ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 297 1 Q Do any of the reports from which you garner 2 the time-weighted average samples that form part of 3 your average in the 2003 paper specifically mention 4 grinding occurring? 5 A The facilities for which you have data, 6 specifically mention grinding occurring. But you that 7 would be all you'd get. 8 Q Is there any mention of grinding occurring on 9 the day that the sample was taken that forms the 10 time-weighted average? 11 A That's an excellent question. 12 Q It's late in the day. 13 A Which I haven't heard before. Your questions \ 1tJ i 1 ) 1 14 are supposed to get worse at the end of the day, not to 15 be so insightful. 16 MR. LANKFORD: This doesn't have to be on the 17 record but what was your question? 18 BY MR. RUCKDESCHEL: ' 19 Q The question is which of the time-weighted 20 average samples that form part of the basis of the 21 time-weighted average conclusions of the 2003 paper, 22 mention that grinding occurred when the sample was 23 taken? I think that's a question. 24 A At least the NIOSH studies don't give that much 25 detail as to relate the days when grinding or which ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 298 1 persons did grinding that day versus those that don't. 2 R'delsperger tells us on Table 4 on Page 67 that he's 3 -got five people that he studied grinding by hand and j 4 ten doing machine grinding. And he has some specific 5 data for that. But it's on a rate basis. ; 6 Q And it's not part of the time-weighted 7 average? 8 A Well, I don't know. But he certainly has 9 short-term samples that reflect that. 10 Q Would you agree there's not enough information ! I j i 1 ] j ! f, \ 11 from R'delsperger's paper to determine whether those : 12 activities became part of the time-weighted average 13 that he reports? \ 14 A That's what I recall. i 15 Q And for the NIOSH studies, while there is ; 16 mention of grinding at various points in various NIOSH . 17 studies, there is insufficient information in those 18 studies to determine whether any grinding occurred 19 during any of the time-weighted average samples 20 reported? ' 21 A I wouldn't say that. I think it's pretty 22 clear. I talked to them, also. They knew that 23 grinding occurred on days they sampled but they didn't j 24 identify them on this. 25 Q Is there any way for you to identify which ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 samples had grinding and which did not? Page 299 2 A I don't, think I can from the report. 3 Q And you don't have any other information 4 available? 5 A No, I only know what is in the report and the 6 one discussion I had. . 7. 8 Q And the one discussion you had with who? A Sheehan. I 9 Q And that's S-H-E-E-H -- 10 A Actually I think it was actually Zumwald? j 11 Q Zumwald? 12 A It may have been Zumwald. I'm tying to 13 remember 14 Q Z-U-M-W-A-L-D. 15 A It was one of those days when I called to ask 16 for one of the three and I got one. So I'm not sure 17 they are all there. 18 Q Let me ask you the Arnie Anderson question. 19 Do you have any notes? j 20 A No. ' 21 Q Do you have anything that will allow an 22 individual in my position to go and validate whether ! 23 grinding occurred during those time-weighted average ' 24 samples? 25 A No. You're prompting me to get a letter from _________________ _______________________________________________________ ESQUIRE DEPOSITION SERVICES (415) 288-4280 , 1 them if they can help me out on this. Page 300 2 Q That may be. 3 A No, I don't. At the time it didn't strike me 4 that that was needed. . 5 QWould the same answer be true with regard to 6 beveling, the same thing be true with regard to 7 beveling? There's not enough information? 8 A Let me be clear. It was either Johnson, 9 Zumwald or Roberts, and I think it was Roberts because 10 he had the same name as I have. That's why I would 11 remember it. 12 Q We just went through this exercise for 13 grinding. Would you agree there is no information in 14 these studies to show that any beveling occurred the 15 time-weighted average samples that forms the basis of 16 your average - 17 Let me start over. Would you agree, 18 Dr. Paustenbach, that in the studies that collect the 19 time-weighted averages that form the basis of the 20 average that you conclude in your 2003 paper, there is 21 insufficient information to determine whether any 22 beveling occurred during the collection of the 23 time-weighted average samples? 24 A I can't specifically say which samples were 25 collected on a time-weighted average basis that 1tiirtlii*ivi1. *yj ESQUIRE DEPOSITION SERVICES (415) 288-4280 * Page 301 1 included beveling or grinding. At least I don't recall 2 that I can identify those. Maybe with further 3 searching I can do that. Right now I don't know that I 4 can. 5 And I can't say that I'm confident based on the 6 reports and my discussion with them that it's 7 incorporated because they mention that that's what's 8 occurring in these facilities. But I don't think I can 9 demonstrate that that very sample or a specific sample 10 included grinding or beveling. 11 Q And of those reports where there is mention of 12 grinding or beveling occurring, would you agree that 13 there are less than 10 time-weighted average samples? 14 A No, I can't say because they have, NIOSH has 15 always characterized this as a typical workday that 16 they sample which may have included grinding and 17 beveling as part of the daily practice. But I can't 18 answer your question specifically. 19 Q But isn't it your belief, Dr. Paustenbach, 20 that in the 1970s when most of these samples were 21 collected, grinding and beveling was an infrequent 22 activity? 23 A Yes, that's why I've always said I'm surprised 24 at Mr. Mallia's report because people aren't doing much 25 of it at that time in history. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q Okay. But with regard to Mr. Mallia'sdose, 2 to the extent that we don't know whether grinding or Page 302 ; J j 3 beveling was occurring during the collection of the 4 time-weighted average samples that form the basis for 5 your average, then our ability to analogize your 6 average to the does Mr. Mallia received when he did his 7 work is limited? 8 A It's only limited if you assume at the 9 beginning of your statement was accurate, which is we ) ! 1 I | J 10 don't know that grinding or beveling was occurring ; 11 during the collection of these samples. That's not 12 true. What is true is I can't tell you which samples: 13 involved, during that day, grinding and beveling. All 14 I know is the author's report that it's occurring. I 15 think it would be extremely unlikely that NIOSH said 16 these things were occurring and then never sampled 17 them. 18 Q I understand what you're saying. 19 A Okay. I know you didn't mean to 20 mischaracterize what I said. 21 Q I certainly wasn't. And I think I'm on the 22 same page as you now. And my point is you come up with 23 an average of some average samples? 24 A Yes. | 25 Q And Mr. Mallia doesn't have an average j ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 exposure. Mr. Mallia has his exposure? Page 303 2 A That's true. 3 Q Okay. And, for example, the average household 4 income in the United States might be $50,000 for a 5 family of four but some people make an awful lot more 6 and some people make an awful lot less? 7 A That's right. 8 (Plaintiffs' Exhibit 21 was marked for 9 identification by the court reporter.) 10 BY MR. RUCKDESCHEL: 11 Q Doctor, I'd like to show you whathas been 12 marked as Plaintiffs' Exhibit 21 that was produced 13 minute ago. It appears to be a list of testimony going 14 back to 2001; is that correct? 15 A Yes, sir. 16 Q If I combine that with Plaintiffs' Exhibit 11 17 which is a list of testimony that appears to run from 18 1990 to 2003, should I have a complete record of your 19 testimony since 1990? 20 A It would appear that way. 21 MR. RUCKDESCHEL: Great. I'd like to show you 22 what's been marked as Exhibit 22, some additional 23 documents that were produce a minute ago. 24 (Plaintiffs' Exhibit 22 was marked for 25 identification by the court reporter.) ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 BY MR. RUCKDESCHEL: Page 304 2 Q Can you tell me what each these additional 3 documents is, and let's just take Page 1, Page 2 and to 4 the extent they are different documents tell me what 5 they are? 6 A Maybe I should number this exhibit. 7 Q Great idea. 8 A Okay. These exhibits have been numbered by 9 page.On the first page there's an abstract labeled 10 No. 410 which is from the annual meeting of the Society 11 of Toxicology. The title of the paper is "Chrysotile 12 Asbestos Exposure Associated With Removal of Automobile 13 Exhaust Systems (Circa 1946 to 1970)." So that was a 14 paper that was delivered or a poster that was presented 15 at the Society of Toxicology meeting. And I was one of 16 the authors. 17 On the next page there is an abstract titled, 18 "T6.2 Cumulative Occupational Asbestos Exposures of Us 19 Brake Repair Mechanics," and like I say, that was 20 presented at the Society For Risk Analysis in the fall 21 of 2004. I believe it was in December 2004. 22 Also at that meeting was presented Abstract No. 23 T6.3, "Evaluating Exposures Associated With Vehicle 24 Brake Cleaning and Machining Activities Using Short 25 Term and TWA Measurements." ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 305 1 On Page 5 there is an abstract No. W2D-01 2 titled "Short-Term Asbestos Exposures Associated With 3 Vehicle Brake Cleaning and Machining Activities From 4 1970 to 1990." And that's from the 14th Annual 5 Conference of the International Society of Exposure 6 Analysis. 7 On Page 6, from the same conference, Abstract , 8 W2D-03, which was titled, "Chrysotile Asbestos Exposure ! 9 Associated With Removal of Automobile Exhaust Systems IQ (Circa 1950 to 1974): Preliminary Findings of a I 11 Simulation Study." 12 On Page 9, Abstract T14.6 titled, 13 "Environmental and Occupational Health Hazards 14 Associated With the Presence of Asbestos in Brake 15 Linings and Pads (1900 to the Present)," and that is 16 from the Annual Meeting of the Society ForRisk 17 Analysis which was held in December 2003. i 18 On Page 14, from the Society For Risk Analysis 19 meeting in December 2003, Abstract T23.3 entitled, "An 20 Evaluation of Historical Exposures of Mechanics to [ 21 Asbestos From Brake Repair." 22 And that's what is in this exhibit. , 23 Q Doctor, on Page 1 of the exhibit there is 24 reference to chrysotile asbestos exposure associated 25 with removal of automobile exhaust systems. Can you i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 tell me who financed the work that went into that? Page 306 2 A I think it was jointly funded by Ford, General 3 Motors and Chrysler. 4 Q And "Cumulative Occupational Exposures of U.S. 5 Brake Repair Mechanics," that's on Page 2, who financed 6 that? . 7 A I believe it was Ford, General Motors and 8 Chrysler. 1 ] j 9 Q On Page 3, "Evaluating Asbestos Exposures 10 Associated With Vehicle Brake Cleaning and Machining 11 Activities Using Short-Term and TWA Measurements," who 12 financed that work? ; a!,s i 13 A Well, let me be clear. I'm not sure that any 14 of these papers, when you say financed that work, the 15 original research was probably funded by them. There 16 may have been no funding to do the work to present at 17 this meeting or to attend the meeting or even to 18 prepare the presentation material. 19 So let me be clear. I don't know if any of 20 these was funded by them, any of the presentations at 21 these conferences. But the original work would have 22 been funded by them. 23 Q That's what I'm referring to. The work your 24 firm undertook to prepare the data that went into these 25 presentations and papers. ESQUIRE DEPOSITION SERVICES (415) 288-4280 ................. Page 307 1 A I just want to make it clear if there is a 2 hundred thousand dollars in work and expenses that went 3 into presenting these papers, it's possible there was : 4 no funding for that. 5 Q And it's possible there was some? 6 A And it's possible there was same. 7 Q Okay. 8 A And the answer is the same for all the 9 abstracts. 10 Q All the abstracts and all the things in 11 Exhibit 22? 12 A Yes, sir. 13 (Plaintiffs' Exhibit 23 was marked for 14 identification by the court reporter.) 15 (Plaintiffs' Exhibit 24 was marked for 16 identification by the court reporter.) 17 BY MR. RUCKDESCHEL: 18 Q Okay, great. Exhibit 24 appears to be a 19 PowerPoint presentation? 20 A Yes. 21 Q Can we- match it up with the abstract? 22 A It's from the Society For Risk Analysis, 2004. 23 Q Okay. 24 A And you could match it up from the abstracts. 25 (Plaintiffs' Exhibit 25 was marked for ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 308 1 identification by the court reporter.) 2 BY MR. RUCKDESCHEL: .3 Q If I take the other two, Exhibit 25 and 26 4 will I be able to match those up as well? 5 A You shouldn't have any problem with that. 6 (Plaintiffs' Exhibit 26 was marked for 1 7 identification by the court reporter.) 8 BY MR. RUCKDESCHEL: 9 Q Same for 23? 10 A That's right. 11 Q Going all the way back to the hypothetical, we 12 started talking about Dr. Langer's case report and 13 because there may have been chemistry issues we went to i 14 the hypothetical. 15 You said in your answer to that hypothetical 16 question that there would have to be quite a number of 17 cases like that before you could attribute the work as 18 a mechanic to causation of mesothelioma. How many? 19 MR. LANKFORD: Objection to form, misstates j 20 testimony. 21 MR. RUCKDESCHEL: Okay. How did I misstate his 22 testimony? 23 MR. LANKFORD: Well, can I have the question ' 24 read back? 25 (Record read.) ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 MR. RUCKDESCHEL: Counsel, how did I misstate 2 the testimony? Since you accuse me of misstating the 3 . testimony. 4 MR. LANKFORD: My recollection of the record is 5 that's not what he stated. 6 MR. RUCKDESCHEL: I'd like you to explain how 7 you believe I misstated because you made a 8 representation on the record that I misstated 9 Dr. Paustenbach's testimony. 10 MR. LANKFORD: And my recollection of his 11 testimony was that it didn't match up with that. I 12 don't think that's what he stated. If we want to read 13 it back and I think the subtleties may be significant, 14 potentially. If you want to find the exact response we 15 can go ahead and have the court reporter read it. 16 BY MR. RUCKDESCHEL: 17 Q Dr. Paustenbach, was my phrasing of that 18 question sufficiently accurate? 19 A I don't have any problemanswering your 20 question. 21 Q Would you answer my question, please? 22 A I'll have to have it heard back. ' 23 Q Absolutely. 24 A When he heard it I thought I could answer it. 25 Q When we were discussing thehypothetical -- ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 A I'm not disagreeing, by the way, with Page 310 2 Mr. Lankford. I'm just saying I can answer the 3 question. 4 Q I understand. I'm not asking you to be mom in 5 this and decide who is right. When we were discussing 6 the hypothetical -- 7 A Oh, you're going to give me a new question? 8 Q Yes. We talked about the individual that 9 worked as a mechanic, hypothetical individual that 10 contracted mesothelioma, there was chrysotile asbestos 11 found in his lungs by a competent pathologist? 12 A It was three times background. 13 Q Three times background. 14 A Only chrysotile. 15 Q Only chrysotile, no amphiboles. And I asked 16 you whether you could attribute the mesothelioma in 17 that hypothetical individual to his work as a mechanic 18 and you said you could not. 19 And the in part of that answer of explaining 20 why you could not you indicated there would have to be 21 a number of cases like that before you could make such 22 an attribution. Is that an accurate summary of your, 23 that section of your answer? 24 A I think there was another piece to it. 25 Q The other piece related to similar ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 individuals. And we talked about that. We digressed Page 311 3 2 into which studies. 3 A Let's cut to the chase. 4 Q Yeah. How many? 5 A I don't know how many it would take because I 6 think it's an issue of statistical power as well as 7 medical inference. So I really can't answer that 8 today. \11i 9 I would tell you this, you would want to not 10 only have the lung data, you would want to have 1 l \ 11 bullet-proof exposure histories. But at some point, at 12 some point you would probably say the data were 13 convincing. I don't know how many it would take. 14 Q We don't make decisions in society and even as 15 a medical community regarding causation only when we 16 have bullet-proof data? 17 A No. But in this case because of the huge, 18 relatively huge number of studies on this issue, the 19 weight of evidence that it would take to overcome that i 20 evidence would have to be appreciable. 21 Q You would a agree there is a difference of 22 opinion amongst experts in these cases regarding 23 whether that is the appropriate view? 24 A I will say that you can have opinions that ! 1 j 25 aren't well founded and there certainly are a number Of ! .. _i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 people that have opinions that I believe aren't well Page 312 2 founded. 3 Q And that would be people on my side of the j 4 table? 5 A That's yet to be seen. We haven't been to 6 court yet. 7 Q All right. Now talking about small businesses j 8 versus large corporations would you agree that a small 9 business the size Imbergia Paving would be unlikely to j 10 have industrial hygienists on staff? i 11 A I think that's true. - 12 Q And they would be largely dependent on j 13 information provided to them by their material ' 14 suppliers for information regarding potential hazards 15 of those materials? : 16 A Either the material supplier in one form or ; 17 another, in this case you'd either have the brake box 18 or you'd have the service manual. 19 Q Okay. With regard to your 2003 paper -- ; 20 A And by the way, at this time frame he should 21 have had exposure to both. He should have hadwarnings 22 both the through brakes and service manuals. ! 23 Q If you bought the vehicles used would you have 24 to ask the manufacturer for the service manual if the 25 person you bought it from did not have it? ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 313 1 A No, because, you know, Chilton's, for instance, ' j 2 has even warnings at this time. So I guess the only 3- way he wouldn't know is if he tried to do all these 4 repairs without any instruction whatsoever. 5 Q Do you recall what Mr. Mallia said regarding ! 6 reference to manuals when performing the mechanic work 7 that he performed? 8 A My recollection was it was infrequent. k 9 Q In the 2003 paper, Doctor, how many times, if | 10 you recall, was it submitted to the journal that 11 actually published it before it was accepted in final j 12 form? 13 A That I can't answer. 14 Q How about the for the 2004 paper? 15 A I can answer. . 16 Q I saw on the ChemRisk website there are a 17 number of papers that have not yet been -- 18 A Maybe I should answer. 19 Q Oh, I'm sorry. I apologize. It's late. You 20 can answer. I appreciate that. Thank you, Doctor. 21 A Let's go back and do it for both of them 22 actually. ! 23 Q Okay, let's start the question. Can you tell 24 me how many times the 2004 paper was submitted? - 25 A We can even go to the 2003. i i ] 1 ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Q . Okay, 2003i Page 314 i : 2 A I think, I'm almost certain the 2003 paper was 3 accepted by the original journal to which it was 4 submitted. I'm virtually certain of that because of 5 the difficulty getting into this journal. So I'm 6 fairly certain of that. 7 And I'm certain on the 2004 paper, it was 8 accepted by the journal submitted to. : 9 Q It was accepted on submitted? 10 A Oh, they never, they are virtually never 11 accepted as submitted. 12 Q That was the question, I was asking. 13 A I'm sorry. 14 Q Not did you have to shop it around. 15 A Okay. 16 Q But how many times did it come back from the 17 publisher? 18 A You know, if we're going to go another half 19 hour let's take a three or four minutes because we're 20 making too many mistakes. 21 Q I'm almost done. 22 A You don't want to do that, all right. 23 I didn't shop them around. They are never 24 accepted, I don't know that I've ever seen a paper 25 accepted as is without some slight changes. And I'm i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 sure in both cases changes needed to be made. Page 315 2 Q Do you know how many times it needed to come 3. back for either paper? 4 A I would be surprised if either of them came 5 back after the revision was submitted. I'd be 6 surprised. 7 Q Okay. Is it fair to say you just don't 8 recall? 9 A I'd say I'm 90 percent sure that they were 10 taken with the revision. ' 11 Q That's sure enough. Let's move on. I saw on 12 the ChemRisk website the other day there are a number 13 of papers that you refer to as being submitted for 14 publication, tentatively approved for publication but 15 have not been published yet? 16 A Mm-hmm. 17 Q Are you familiar with those papers? 18 A It depends. You'd have to show me which ones 19 you mean. 20 Q I can pull it up. 21 A Are they off my CV? 22 Q I don't know if they are on your CV or not. 23 A That's the only reason I can't answer the 24 question. Let's take a look. 25 Q Okay. In 2005 on the website, in review, i ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 Williams and Paustenbach characterizing, historical Page 316 2 industrial hygiene data applied to occupational i 3 . environmental hygiene? 4 A That's not the complete title. 1 5 Q I understand. I'm just trying to give you : 6 enough so that you know what paper I'm talking about. 7 A There are a couple with similar titles. Do you ; 8 want me to look at them? 9 Q Let me cut to the chase. : 10 A Sure. 11 Q Will you provide me with copies of the papers 12 that are listed as being in review? j : 13 A Well, they are not relevant. I'm not going to 14 rely on them in the case. And I never share papers 15 that are in review. Nobody does. So I'm not going to. j 16 Q I understand that you won't. 'j 17 A Nobody does. 18 Q You have in the past? i 19 A Not in review I haven't. I never submitted -- 20 shared a paper in review. 21 Q I don't want to bicker with you but you did ' 22 submit it to Dr. Last and the Blue Ribbon Panel? 23 A No, that's different. And I don't know if it | 24 was in review or accepted. But nonetheless, in 25 litigation I wouldn't have shared and I did that as a ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 317 1 professional courtesy as a very rare event. But I did 2 it anyway. And I don't recall if it was accepted or 3 not. 4 Q It was not. 5 A Okay. That's fine. 6 Q There was still revisions to be made. 7 A Okay. 8 Q I want to make a motion with the court. I 9 just want to clarify for the record it's been done in 10 the past. 11 A It's only been done in the case of professional 12 courtesy. It's never been done with respect to any 13 other purpose that I can recall. 14 Q You were working for a company facing 15 environmental liability or litigation liability for 16 chromium contamination at that time? 17 A That is absolutely wrong. 18 Q Okay. 19 A And I testified to that half a dozen times even 20 if Praglin mischaracterizes and basically lies about 21 it. 22 Q I don't want anything to do with that. 23 .A And that's a fact and there is plenty of 24 evidence to support -25 Q At that time you were not actively -- ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 318 1 A That's a fact, I was not actively involved. 2 Q All right. We clarified that. 3 Have you provided testimony or been disclosed 4 as an expert by any company that manufactures, sells or 5 distributes asbestos-containing brakes, clutches or 6 automobile parts other than Ford, General Motors and 7 Chrysler? 8 THE WITNESS: Can I hear the question again? 9 (Record read.) 10 BY MR. RUCKDESCHEL: 11 Q Let me restate the question. Let's break it 12 up. Have you provided testimony for any company 13 regarding brakes, clutches or gaskets other than -- in 14 connection with asbestos, other than Ford, General 15 Motors and Chrysler? 16 A I am going to ask for it to be read back. 17 Q I'll say it again. Have you provided 18 testimony for any company other than Ford, General 19 Motors and Chrysler in any asbestos case relating to 20 brakes, clutches or gaskets? 21 ' MR. LANKFORD: Objection to the form. 22 ' THE WITNESS: I don't know what the problem is 23 with the form. I have been involved in litigation 24 involving gaskets. And I have testified in a deposition 25 on gaskets. ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 BY MR. RUCKDESCHEL: Page 319 2 Q Who was your client in that case? Let me 3 rephrase it. What was the manufacturer involved in 4 that case? . 5 A Who manufactured the gaskets? 6 . Q Yeah. 7 A I don't recall. 8 Q On whose behalf -- 9 A I'm not even sure I knew the name of the 10 gasket. 11 Q On whose behalf were you testifying? 12 A I guess it's publicly known. It was Buffalo 13 Pump. 14 Q Okay. 15 A It would be listed on what we just disclosed to 16 you. 17 Q Have you provided any testimony for any 18 manufacturers of brakes or clutches other than Ford, 19 General Motors or Chrysler? 20 MR. LANKFORD: Objection as to form and calls 21 for speculation as to what the business lines may have 22 been of the companies that he's provided testimony. You 23 mean on those topics? 24 THE WITNESS: Can I hear the question again? 25 BY MR. RUCKDESCHEL: ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 320 1 Q I want to know if you've testified on behalf 2 of the manufacturers of brakes, clutches or gaskets 3 other than Ford, General Motors or Chrysler? 4 A No. 5 Q Okay, there we go. And have you been retained 6 and disclosed as an expert for any companies other than 7 Ford, General Motors and Chrysler with respect to 8 exposure to asbestos from brakes, clutches or gaskets? 9 MR. LANKFORD: Objection to form. 10 THE WITNESS: Other than Buffalo Pump? 11 BY MR. RUCKDESCHEL: 12 Q Right. 13 MR. LANKFORD: And calls for speculation. 14 THE WITNESS: Not that I'm aware of. 15 BY MR. RUCKDESCHEL: 16 Q Okay. Doctor, do you intend to do any more 17 work relating to this case prior to trial? 18 A Only my standard and customary preparation for 19 trial. 20 Q And what would that involve generically? 21 A That would involve reading today's deposition, 22 seeing if I needed to do more work to more fully answer 23 your questions that I might anticipate in trial. 24 And I would of course, read any, reread any 25 papers in the recent time that you've asked me about to ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 refresh my memory in preparation for trial. Page 321 2 MR. RUCKDESCHEL: Doctor, with that said I have 3 no more questions. I appreciate your time and your 4 courtesy. 5 I, because I must, I open the floor. Gentlemen 6 on the phone? 7 MR. BELL: Yes . 8 MR. RUCKDESCHEL: Wake up. Any questions 9 MR. SALNER: Craig Salner, no questions. 10 MR. BELL: Henry Bell, no questions. 11 MR. BURKE: This is Tom Burke. I have no 12 questions. 13 MR. GIRTMAN:. Ben Girtman. No questions. 14 BY MR. RUCKDESCHEL: 15 Q Doctor, you have the right to read and sign 16 this transcript or the right to waive that right. 17 A I'd like to have the opportunity to read and 18 sign and correct, and I also ask for two copies of the 19 DVD. And I understand these are both expedited; is 20 that right? 21 Q They have been expedited. 22 A And trial is going to start in about ten days? 23 Q That is correct. 24 A Okay. I'll see you at trial. 25 MR. RUCKDESCHEL: Counsel, I request we be ESQUIRE DEPOSITION SERVICES (415) 288-4280 1 requested with copies of Dr. Paustenbach reliance Page 322 2 materials if you can work with me on arranging copies. 3 MR. LANKFORD: Agreed. 4 MR. RUCKDESCHEL: I would ask that the court 5 reporter take possession of the exhibits and distribute 6 them with the transcript. And with that we will go off 7 the record. 8 THE VIDEOGRAPHER: This concludes the 9 deposition of Dr. Paustenbach. Off the record. The 10 time is 6:52. . i 11 // 12 // 13 14 15 16 17 18 19 20 21 22 23 24 25 ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 323 1 2 3 4 5 6 7 8 9 I, DENNIS J. PAUSTENBACH, PH.D. ,D.A.B.T., do ! 10 hereby declare under penalty of perjury that I have read 11 the foregoing transcript; that I have any corrections as 12 appear noted, in ink, initialed by me; that my testimony 13 as contained herein, as corrected, is true and correct. 14 EXECUTED this ____ day of , 15 2005, at , . 16 (City) (State) 17 18 19 20 DENNIS J. PAUSTENBACH 21 PH.D., D.A.B.T. 22 23 24 25 ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 324 1 2 3 4 I, the undersigned, a Certified Shorthand 5 Reporter of the State of California, do hereby 6 certify: 7 That the foregoing proceedings were taken 8 before me at the time and place herein set forth; that 9 any witnesses in the foregoing proceedings, prior to 10 testifying, were placed under oath; that a verbatim 11 record of the proceedings was made by me using machine 12 shorthand which was thereafter transcribed under my 13 direction; further, that the foregoing is an accurate 14 transcription thereof. 15 I further certify that I am neither 16 financially interested in the action nor a relative or 17 employee of any attorney of any of the parties. 18 IN WITNESS WHEREOF, I have this date 19 subscribed my name. 20 . 21 Dated: 22 23 24 MARY F. NELSON 25 CSR No. 3553 ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 1 A Abex4:6 ability 235:3 243:4 302:5 able 48:17 49.1 78:11 105:20 113:12,22 116:17 145:20 167:10 176:21 234:8 247:4,16 260:9 261:4 291:5 308:4 absolute 161:11 absolutely 28:25 38:8 177:22 243:1 280:16 294:12 309:23 317:17 abstract 6:18,21,24 7:2 201:11 304:9,17,22 305:1,7,12,19 307:21 abstracts 6:17 307:9 10 307:24 accept 115:15 141:12 152:18 254:18 260:24 acceptability 222:14 232:16 acceptable 91:2,3 95:16 106:20 114:20 115:24 118:3 accepted 276:13 313:11 314:3,8,9,11 314:24,25 316:24 317:2 accidental 253:19 account 124:7 accumulate 93:20 94:1 accurate 10:18 26:20 89:25 90:16,18,19,19 91:7,7,12,17,17,19 92:3 93:5,6,12,16,21 94:6,9 95:3 100:20 101:14 103:8 133:15 139:9 145:17,19 154:3,14 157:23 163:13 174:18,19 177:4 179:25 181:10 183:3 280:24 302:9 309:18 310:22 324:13 accuse 309:2 acknowledged 67:6 112:22 acknowledges 112:23 acted 245:25 action 106:12 324:16 actions 278:18 actively 317:25 318:1 activities 6:25 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283:22 284:16 286:22 caught 127:23 227:24 232:6,10 233:13 Page 4 253:22 causal 53:18 192:14 224:10,15 causation 46:4 88:2 208:2 236:24 237:19 247:12 308:18 311:15 cause 22:19 42:1 51:2,6 51:7 57:10,17 63:19 85:22 87:17 93:10 101:12 112:9 132:12 132:15 219:18 224:4 235:11 242:16 249:17,21 286:7 287:21 caused 117:4 205:25 234:19 236:8,21 causes 217:21 causing 59:21 132:23 235:1 cautioned 235:7 cease 156:24 century 57:9 certain 16:11 57:16 74:16 101:19 127:7 146:3 147:17 194:1 221:9 245:23 314:2,4 314:6,7 certainly 24:13 30:1,16 39:3 57:21 77:6 79:8 81:5 93:23 103:17 110:18 114:1 117:21 174:20 184:13 188:10214:19226:7 226:24 245:22 247:7 255:7 256:22 268:20 275:20 288:24 295:11 298:8 302:21 311:25 certainty 99:17 Certified 2:20 324:4 certify 324:6,15 challenge 88:19 243:17 challenges 243:6 chance 30:21 47:10 178:17 284:6 change 52:18,21 53:19 71:4 75:22 95:5 123:2 164:10 246:24 256:3 268:24 269:3 changed 53:1,2 56:8 139:19,19 changes 62:3 314:25 315:1 characterization 16:4 39:2 118:19 characterize 156:1 295:4 ESQUIRE DEPOSITION SERVICES (415) 288-4280 characterized 84:11 301:15 characterizing 316:1 charge 123:19,22 124:20 125:6 charging 82:4,7,8,10 82:20 124:17 125:15 125:18 chart 6:5,9,14 196:17 196:18,20 197:2,4 198:9,11 201:19 225:4,8 226:23 229:15 235:2 253:8 262:12 268:23 282:21,22 283:1,11 283:15,19284:3,12 284:22 Charts 196:22 chase 311:3 316:9 check 156:3 222:24 checked 178:2 chemical 53:19 54:1 55:8 80:25 112:19 114:11 221:22 267:13,24 268:4,11 272:9 chemicals 145:6 177:8 177:18 224:4 chemistry 291:4 308:13 ChemRisk4:15 5:21 12:19 14:19,23 15:1 19:22,25 20:3 22:7 23:11 70:12,14,23 82:10,23 137:11,13 137:20,21 138:1,9,12 138:14,23 139:16,16 140:4 159:22 162:13 164:19,21,23 165:21 166:13 170:13,14 313:16315:12 ChemRisk's 70:19 76:11 139:15 144:5 Chevy 271:9 chicken 222:10 children 279:13 Chilton's 313:1 China 111:4 112:16,21 112:23 Chinese 68:6 118:4,7 118:20 119:2,7 chloride 237:21,24 choice 125:16 267:2 270:2 choose 97:19 105:2 115:7 266:24 chooses 67:15,17,23 79:24 chose 105:6 113:19 114:24 244:14 263:23 266:13 chosen 113:17 242:24 243:3 chromium 5:17 106:12 106:19,22 107:2,5,7 107:14,15,19 109:14 110:9 112:9,21 113:25 114:6 115:8 116:4,23 117:7 137:13 166:14 176:2 176:3 266:17,18 267:17,19 272:1 317:16 chromium-laced 271:3 chronic 264:11,21 266:8 278:19,22 chronicity 222:6,7 chronology 119:14 Chrysler 17:6 18:6,13 19:14 21:7,17 22:24 24:15 120:10,23 123:3,12 124:5,24 125:6 126:17,20 128:9 130:2 132:11 132:22 133:5 137:19 137:20,22,25 138:6 150:23 151:9 154:21 159:24 162:14 170:25 172:1,15 173:6,10 276:4 279:25 280:2,3 281:21 282:25 283:21,22 284:16 306:3,8 318:7,15,19 319:19 320:3,7 chrysotile 6:18 53:19 53:25 54:14,16,20,22 54:24 55:9 99:14,19 100:25 235:7,14 239:7 244:10 249:16 290:1 291:22 292:13 304:11 305:8,24 310:10,14,15 Circa 6:19 304:13 305:10 circle 163:23 CIRCUIT 1:1,1 2:1,1 citation 277:2,14 citations 88:15,17 275:16 cite 88:21 91:11 275:20 276:17 277:13 cited 118:10 209:2,6,6 209:7,12,13 231:18 276:23 cites 86:13 201:6 City 59:3 323:16 claim 60:22 104:8 126:19 129:15 130:13 254:9 claimed 45:18 210:11 claiming 184:21 claims 16:15 24:10 130:2 172:2 clarification 43:12 91:10 clarified 171:25 318:2 clarify 16:3 27:3 34:24 317:9 clarifying 35:17 CLARKE 3:20 classic 24:24 223:4 238:2,11 classification 201:20 213:8 264:7 classified 201:21 202:24 264:17 clean 79:22,24 81:8,15 83:11 233:1 248:3 274:7 cleaned 78:22,25 79:2 79:3 207:15 293:10 cleaner 274:5 cleaning 6:25 79:15,15 304:24 305:3 306:10 clean-up 80:3 81:7 clear 10:24 12:11,20 15:3 16:12 28:18 57:11 83:1792:10,11 97:16 118:7 124:2 125:17 153:21 156:10 158:8 282:4 298:22 300:8 306:13 306:19 307:1 clearly 104:8,18 157:19 158:6 click 178:7 client 122:13 124:17,20 140:11,15 167:17 181:24 319:2 clients 6:2 68:22 122:8 123:19 125:15 160:4 160:9 166:14 clock 82:18,19 close41:14 119:12 121:11,13,22 145:16 145:21 237:11 closed 58:16 closer 46:10 closes 31:16 cloth 150:25 151:11 clothing 80:15,24 81:2 81:6 cloud 94:3 clue 153:10 260:8 clumps 94:4,10 cluster 24:2 clutch 89:23 90:14 93:4 172:3 282:9 clutches 25:16 28:10 32:22 35:15 36:3 40:11 42:7 281:25 283:2 318:5,13,20 319:18 320:2,8 coax 222:12 cocktail 243:25 cohort 207:4,11,18 208:1 220:23 221:12 251:2 258:25 259:15 259:18,24 260:16 293:20 cohort's 208:4 collaborative 118:5 collar 195:22 colleague 14:9 36:7 82:11,13 182:10 183:13 263:23 265:5 265:6 290:16 colleagues 199:12 271:2 272:16 collect 27:14 30:18 31:7 83:6 120:25 292:24 300:18 collected 84:10 130:20 131:9 231:6 295:9 296:22 300:25 301:21 collection 61:5 84:13 300:22 302:3,11 collector 274:3 colleges 105:19 collision 267:22 column 197:19,20 198:11,15,21 201:20 213:19 219:5 220:14 229:16,16,16 264:13 columns 230:2 combination 180:18,19 222:18 243:21 combine 147:22 303:16 combined 201:13 combining 144:19 come 23:15 24:2 31:20 37:18 61:6 115:4 120:8 150:23 196:25 258:14 259:18 302:22 314:16 315:2 comes 115:7 123:17 142:9 199:7,8 218:10 218:12 232:24 233:1 251:19 287:9 comfortable 100:19 Page 5 125:18 232:14 coming 74:14 242:23 243:7 290:19 comment 42:18,20 comments 38:17 126:11 ; committed 232:10 committing233:12 common 150:16 295:12 commonly 94:21 communicate 87:20 communications 17:5 18:2,5,9 119:2 275:17 277:3 communists 118:4 j community 59:6 78:20 112:13,24 113:3 122:16 145:5 261:13 278:13 279:17 j 311:15 j companies 15:6 106:11 117:8 161:13 169:7 174:1,2 180:22 181:3 181:4 245:20 261:11 261:25 319:22 320:6 company 3:10,14 72:15 141:4 142:9 143:19 : 155:8 160:8 167:19 168:18 169:4 175:11 181:22 182:1 183:6 317:14 318:4,12,18 company's 139:16 compare210:9,12 compared 191:4,6 212:19 260:22 268:10281:9 comparing 293:20 comparison 58:25 135:22 281:16 compensation 111:2 168:10,15 170:4 competent 291:20 310:11 compile 161:20 complete 10:21,22 111:22 161:10 179:25 220:13 | 280:15 303:18 316:4 completed 72:4 73:5 235:2 completely 72:22 161:9 j 191:18 227:23 1 229:14 compliance 94:24 233:7 compliant 233:8,9,10 233:15 complicated 279:1,4 ! ESQUIRE DEPOSITION SERVICES (415) 288-4280 283:1 complimentary 220:16 comply 15:7 25:20 complying 31:12 component 261:18 components 274:8 composition 55:8 compound 89:11,16 comprehend 113:23 comprehensive 135:19 compressed 79:2,25 81:11,16207:14 248:3 compromise 29:2 concentration 53:23 54:5,11 concentrations 93:15 97:15 116:15 272:9 concern 85:25 86:9,12 99:12 112:8 117:4,6 156:17,18 concerned 31:24 35:3 47:12 59:18 116:22 140:13 143:23 144:3 157:2 273:13 291:5 concerning 39:16 52:25 concerns 118:23 conclude 58:14 87:23 97:14 99:21 103:24 292:18 300:20 concluded 51:10 110:7 concludes 58:10 95:9 129:5 178:13 214:18 322:8 conclusion 58:25 61:6 222:19 246:8 258:15 277:24 conclusions 73:17 216:13 297:21 condensed 56:21 condition 235:1 259:16 conditions 131:14 243:11 244:17 conduct 69:18 105:21 258:10 272:24 conducted 69:19 237:7 293:15 294:23 confer 15:23 conference 36:7 305:5 305:7 conferences 306:21 confidence 201:17 213:25 228:11 229:14,22 230:9 232:12 confident 301:5 confidentiality 19:13 confine 78:24 274:15 confined 48:22,25 160:11 confirmation 222:4 confounder 250:19 confounders 223:18,22 223:23 250:23 confounding 221:19 250:11,16,24 confusing 126:2 connection 32:20 38:16 106:18,22 115:1 172:2 262:17 318:14 cons 188:17 conscious 271:21 consent 108:18 113:24 114:13 consequences 240:5 consider 58:23 75:4 100:22 105:23 179:4 221:4 232:18,19 246:1 270:15 consideration 73:10 80:22 112:13 133:10 241:6 considered 48:19 69:23 84:2 212:20 215:5 221:11 231:13 244:23 245:24 248:16,19261:19 273:2 consistent 52:13 76:12 220:22 221:17 230:16 consisting 180:14 201:14 constitute 22:8 construction 227:21 consult 66:15 262:1 consultant 23:4 25:5 65:23 72:1 110:25 111:6 consultants 66:17 consultation 66:17,21 consulted 262:8 consulting 64:21 66:10 66:10,14 70:3 71:5 111:13 182:12 contact 80:24 122:7 137:18 contacted 121:24 174:1 200:7 contacting 28:13 269:4 contain 38:19 89:23 94:10 contained 10:14 38:8 104:23 180:15 188:23 323:13 containing 38:19 42:6 65:4 94:5 contains 274:6 contaminants 112:18 contaminated 80:22 110:9 contaminating 81:5 contamination 81:4 278:1,5 317:16 contemporaneous 59:11 231:7 contemporaneously 208:20 contest 42:15 context 160:18 213:13 continue 17:17 78:4 continued 209:18 continues 57:24 119:7 155:20 157:8 continuing95:15 170:14 contract 5:21 14:22 137:9,24 138:4,6 contracted 310:10 contractor 89:2 contracts 291:16 contractual 19:13 contribute 171:11 288:8 contributors 285:4,5 control 149:12 196:13 207:16 209:21,25 210:5,10211:1 252:6 283:13 Controlling 6:4 185:15 controls 79:7 213:24 287:7 conversation 33:25 conversations 275:22 275:25 276:17 277:9 conversion 54:1,5,15 58:9 104:4 convinced 107:22,25 109:4 convinces 53:6 convincing 311:13 cooler 266:19 copied 28:4 copies 12:24 13:23 26:13 28:13 126:12 181:7 316:11 321:18 322:1,2 copy 10:4 11:1,22 29:7 30:6 81:24 83:11,13 102:14 137:9 198:22 200:23,25 226:16 263:7 290:24 copying 32:7 34:21 corporate 24:21 241:5 241:22 245:12,16 corporation 20:3 182:19,23 corporations 102:15 245:25 266:1 312:8 correct 12:21 14:24 15:2 20:2 33:6 35:17 35:20 36:1041:12 43:14 50:14 53:10 54:18 70:12,15,18 75:17 78:3,22 79:12 80:16 83:7,8 84:24 86:2 88:23 91:22,24 100:1 106:17 110:5 111:10 119 23 122:22 129 10 135:14 139 13 141:1 150:1 152:12 157:14 157:21 164:13,19 168:12,14 169:10 173:1 175:9 192:23 193:25 194 3 199:3 201:23 203 14,15 206:16 207 17 211:19,23 213:9 216:19231 10 233:9 234:25 250:5 257:18 259:20 267:1 271:7 271:16,17,20 275:18 278:1 290:2 303:14 321:18,23 323:13 corrected 195:18 323:13 corrections 323:11 correctly 103:6 correspondence 9:4 24:22 117:25 119:4 cost 98:6 242:12,15 245:3 246:1 counsel 11:12 12:3 13:20,22 14:8 15:24 15:25 17:1621:13 23:7 24:6 26:12 27:14 29:16 33:1,24 33:25 34:1,2 41:18 42:19,21 44:4,10 72:14 92:17 101:5 119:20 146:13 156:24 157:19 158:5 160:14 161:5,9 177:13 178:11 179:19218:14 230:25 254:3 269:19 294:18 309:1 321:25 counsel's 39:1,4 89:20 count 133:14 countries 58:1 244:5 Page 6 country 28:12 country's 277:20 County 1:1 2:1 181:15 181:23 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ESQUIRE DEPOSITION SERVICES (415) 288-4280 cross 182:6,14 183:1 crossed 229:17 cross-examination 28:8 crush 143:21,24 CSR 1:24 324:25 cumulative 6:22 59:17 304:18 306:4 current 52:3 59:10 82:3 86:9,12 100:4 141:5 201:9 currently 99:23 100:14 209:21 Curriculum 5:10 customary 84:19 114:2 117:14 118:14 320:18 customers 96:5,6,22 261:17 cut 195:11 287:4 311:3 316:9 cut-off 43:10 CV 8:25 10:14 35:9 36:19,23,25 176:19 181:7 315:21,22 D D 283:23 DADE 1:1 2.1 daily 296:12 301:17 Daimler 18:13 283:22 damage 185:4,5,6 dangerous 266:25 dangers 88:7 190:4,5 darn 268:10 Darrell 119:16 data 52:10,12 60:21 61:2,5 62:23 63:1 69:21 84:13 111:3,7 111:9,13 112:4 144:19,20 147:19 148:1 182:9 191:1 193:20,21,25 194:3 199:9,21 201:13 206:12,15 207:8,24 208:1 212:13,14 213:7,13,14217:22 222:20 255:14 258:21 295:8 297:5 298:5 306:24 311:10 311:12,16316:2 database 293:14 date 91:1 271:8 324:18 dated 5:16 180:9 324:21 DAVID 3:7 day 52:3 62:18 144:3 155:21 157:9 178:8 196:21 231:15 242:1 262:13 267:20 271:4 272:17 297:9,12,14 298:1 302:13 315:12 323:14 days 29:25 43:7 107:6 232:22,23,25 233:1 297:25 298:23 299:15 321:22 deal 15:13,21 194:5 278:7 deals 51:3 72:25 dealt 278:15 279:19 death 253:8,19 254:21 254:23 255:11,14 258:12,20 259:16 260:21,23 264:25 deaths 253:15 254:13 257:15,16,17 259:12 261:7 debated 101:25 debris 51:5 52:3 53:17 53:17 54:2,17,21,21 54:25 56:3 58:2,4,9 58:17 281:9,20,23 282:5,9,10,17 decade 86:16 147:17 166:16 220:15 December 304:21 305:17,19 decide 31:22 76:1 120:13 266:25 270:9 310:5 decided 120:12 decides 74:16 decision 72:16 84:8 97:12 105:3,21,23 113:12 124:25 242:21 265:12 268:15 270:17 271:21 decisions 6:13 105:11 108:13 263:9311:14 decision-making 265:13 266:1 declare 323:10 decreasing 296:13 defect 250:3 defendant 3:19 4:1,6 30:7 31:20,22 41:8 43:8 defendants 1:8 2:8 3:10 3:14 30:6,13 31:5 32:5 41:14 42:4,8,24 73:1 161:3 181:23 defense 29:16 35:2 48:7 76:10 140:16 142:11 143:13 defer 48:10 229:13 define 22:12 142:13 242:3 defined 140:21 248:14 defines 192:11 215:10 definite 90:22 definitely 201:6 215:18 definition 53:4 77:7 142:17 148:24 194:2 215:13,24 219:14 229:23 242:2 288:14 degree 210:3 degrees 243:8,9 delivered 12:23 304:14 demanding 92:18 democratic 186:13 demolition 227:21 . 228:13,16 demonstrable 128:10 129:7 216:7 demonstrate 232:12 301:9 demonstrated 239:22 demonstrative 33:5 34:5 denied 9:22 Dennis 1:15 2:15 5:3 8:4 98:12 187:20 267:5 273:10,10 323:9,20 department 149:18 dependent 117:17 149:7 287:8 312:12 depending 80:25 150:15 168:1 226:8 depends 52:20 96:11 129:12 140:9,14 145:14,25 187:10 227:10 245:21 286:12 287:6 315:18 deposed 26:3 30:11 deposition 1:14 2:14 4:19 5:8 8:16,17 9:20 9:23 10:25 11:21 14:13 17:1720:18 28:1 30:14,20 31:6 31:11 32:2,12 35:1 38:9 39:21 44:21 63:3 83:10 101:6 103:14 111:17 138:18,22 139:9 157:9 160:21 167:7 178:18 181:9,19,20 182:17 184:6,10,15 184:20,25 198:10 276:22 318:24 320:21 322:9 depositions 5:24 10:11 22:5,15 28:13 146:14 167:7 179:22 180:16 283:18 derive 147:20 DES 177:11,11 describe 45:7 217:7 218:1,16 described 27:13 62:22 150:23,25 160:15 189:5 207:13,14,15 208:13 283:18 292:17 describes 63:2 describing 207:25 description 25:12 146:9 216:1 descriptions 221:16 296:10 desensitizing 187:1,2 desert 243:9 deserves 114:12 designated 68:14 designed 115:3 designing 261:25 detail 48:20 297:25 detect 246:16,21 247:1 247:4,7 detectable 239:11 detected 291:23 detecting 253:4 determination 237:19 245:12,16,17 246:3 247:12 261:23 determinations 233:19 determinative 67:10 determine 15:19 65:25 75:11 94:23 149:15 196:3 210:8 234:9 259:17298:11,18 300:21 determined 178:24 determines 291:20 determining 265:25 Detroit 120:8 develop 269:25 279:2 developed 49:10 171:7 223:8 244:20 285:17 developing 190:25 235:20 240:5 246:1 development 246:14 devices 116:18 de-emphasizes 186:21 diagnosis 222:5 223:1 223:2 dialogue 56:17 die 240:17,20,22 254:7 254:20 256:17 257:6 257:24 258:3 259:6 Page 7 269:12 died 128:23 253:10 259:2,7 260:4,16 dies 291:18 diesel 275:12 difference 19:21 51:22 53:21 55:1 56:5,7 98:20 115:13 174:16 229:12 231:25 250:22 261:5 264:9 272:19 284:4 311:21 differences 51:23 114:21 different 53:18 55:9 64:19 75:12 89:13 99:18,19,22 100:1,10 100:12,25 102:1 115:25 125:10 127:15 145:1 147:5 148:2,22 153:13 159:15 168:2 189:3 192:3 231:24 236:17 244:16251:15 266:21,22 267:8 268:3 272:6 285:25 286:21 289:3 293:3,6 304:4 316:23 differently 100:11 218:9 255:4 difficult 193:13 194:5 219:22,24 220:1 222:5 253:6 difficulties 174:3 279:17 difficulty 66:25 245:11 253:4 314:5 Digest 49:19 56:11 digress 106:1 196:25 digressed 152:10 311:1 Dimensions 6:13 263:9 dioxin 175:24 178:3 273:20 279:10 dioxin-like 272:18 direct 46:5 47:3 48:15 81:21 115:13,19 168:6 203:2 242:5 279:7 directed 42:18,20 direction 72:14 324:13 directly 28:7 68:8 84:6 168:3,6 disagree 39:1 68:17 87:6 89:9 97:7 103:9 disagreeing 87:14 310:1 disagreement 133:1 disasters 277:19 disclose 66:17 76:16 ESQUIRE DEPOSITION SERVICES (415) 288-4280 117:7,22,22 disclosed 24:22 76:20 118:8 318:3 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nutshell 52:16 | \ j 1 oath 324:10 object 17:8 21:9 23:2 49:2164:15 65:20 89:10 132:24 154:15 156:6 157:17 168:23 \ j j } j 225:14 284:2 285:1 objection 13:21,24 17:11,13 21:24 23:16 23:21 24:7 30:10 31:1032:24 38:1,3 38:12 39:4 40:4,15 j j j j ! | 46:7,20,24 47:25 48:23 60:10 64:3 68:14 71:9 88:9 89:20 90:1,1,17 98:14 99:2 101:3,5,6 101:22 104:25 105:12 122:19 | j 1 ) f 124:10 133:11 134:13 135:7 142:18 154:24 156:8 170:5 170:17 171:1,1 186:1 193:12213:11216:9 216:20 226:1 231:4 233:5 235:24 237:3 245:14 255:9 258:17 259:25 260:25 266:4 267:10 270:4 278:9 280:8,8 281:4 284:7 285:7 288:5 290:13 292:4 294:2,5,6 308:19 318:21 319:20 320:9 objections 9:20 15:5,11 17:21 66:8 156:25 278:11 294:8 j 1 \ 1 jj ; \ j j j j \ obligated 10:5 11:25 28:21 40:17,18 obligation 34:25 39:8 39:20 observable 259:19,23 obvious 268:18,19 obviously 10:4 15:14 28:6,14 31:3 67:24 | i j ] j ; ; ESQUIRE DEPOSITION SERVICES (415) 288-4280 184:9 276:13 occasional 216:21 occasions 36:17 41:2 151:15 occupation 215:5,9 221:22 occupational 6:22 21:4 21:16 22:25 23:13 45:8,9 51:24 59:1,6 59:11,11 87:2 131:22 133:8 155:25 208:1 229:11 238:2,11 248:20 262:6 281:5 304:18 305:13 306:4 316:2 occupations 203:16 212:5 215:4 occur 30:14 86:22 143:22 236:10,24 279:5 occurred 51:11,14 53:3 84:17 86:20,21,21 293:16,24 295:1 296:19 297:22 298:18,23 299:23 300:14,22 occurrence 205:7 occurring 57:7 84:4 130:13 226:12 272:19 295:24 296:5 296:24 297:4,6,8 301:8,12 302:3,10,14 302:16 occurs 29:14 224:6 240:12 odds 211:20,22 212:6 212:15 213:25 214:20215:11 228:10 229:10,11 odors 278:15 offer 50:5 223:5 offered 134:22 offering 227:24 office 11:15 15:21 23:15 178:22,23 offices 4:7 33:9 oftentimes 174:5 Oh 117:1 193:1 200:18 222:21 246:22 251:22 293:12 310:7 313:19314:10 okay 10:23 11:12 12:15 13:7 14:1,11,18 16:20 17:4 18:2,5 20:1,22 24:11,12,20 25:22,25 26:7 29:16 33:4 34:19 35:4,1 1 35:22 36:13,20 37:7 Page 18 37:19 42:22 43:3,17 45:12 47:2 48:6,13 49:4 50:20,22 54:4 54:15 55:20 56:10,22 57:4 60:5 62:14 64:2 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opinions 26:24 28:22 39:6,9 40:20 46:3,18 49:10,12,14,20,25 50:2,4,10,13,15,16 50:17,20 52:18,25 55:21,22 56:12,13 60:7,13,15,17 66:21 67:3,13,25 73:8 74:9 227:25 311:24 312:1 opportunities 188:2,6 250:11 opportunity 47:6 52:17 185:11 321:17 opposed 19:22 66:21 86:12 options 168:17,19,22 169:16 170:3 Orange 4:3 order 5:9 9:22 10:3 11:2,3,25 12:1 15:7,8 15:16,23 17:15 28:16 34:8,12 38:18,19 39:12 75:9 96:9 145:13 161:21,22 193:5 207:1 ordered 40:13 161:19 ordering 41:19 orders 9:24 ordinary 40:21 organic 171:20 organizations 181:4,5 organized 262:13 original 104:6 188:11 306:15,21 314:3 Orlando 4:4 OSHA 54:14 80:18 94:24 104:17,18 105:5 230:21 231:2,3 231:8,11,14,16232:9 232:22,23,25 233:3,4 233:9 ought 42:16 262:5 outcome 132:13,18,19 195:25 outlaw 260:13 outline 49:14,17 outlines 19:8 173:9 outside61:18 87:1 119:20 160:5 276:22 outstanding 146:15 overall 60:13 200:13 218:22 overbroad 21:10 39:11 79:5 90:18 92:14 97:10 98:14 100:2 123:5 133:12 154:24 216:9 overcome 311:19 overexposed 143:21 202:8 overly 38:11.94:12 overseeing 167:17 oversight 108:21 overwarning 186:14 overwhelmingly 52:8 owner 70:11 161:18 o'clock 177:21 . ; ....... ..... ~~P Pacific 5:21 106:15 137:10,11 182:15,19 182:20,20,22 183:2 pad 77:5,11 79:25 178:20 295:20 pads 64:7,8,14 78:4 80:2 84:3 85:13 187:5 188:15 305T5 page 5:7,23,25 6:3.6,9 6:14 37:4,7 85:17 102:21 172:9 211:12 211:25 212:3,17 213:18 215:3 218:22 ; 218:25 219:1,16 220:12 229:9 239:2,8 263:16,17 264:6 298:2 302:22 304:3,3 304:9,9,17 305:1,7 305:12,18,23 306:5,9 pages 5:8,9,10,12,14,16 j 5:18,20.22 6:1,4.8,11 6:13,16,17,20,23 7:1 7:4 37:5,8 87:7,11 119:7,9 261:10 paid 110:24 122:18,25 | j . ! 161:13 163:21 painstaking 123:18 paint 274:3 pamphlet 5:13 6 4 84:22 85:1,5 86:1 189:6 Panel 113:8 316:22 paper 52:1,6 55:4,11 55:14 56:17 57:15 58:6 60:9,17 61:4,22 61:25 62:22,23 81:24 83:4,7,10,25 86:16 104:24 109 15,16,17 109; 19 110:3,6,7,14 110:17 111:8 112-7 1 : ; i j ' ' , : j ! 113:4 117:11,23 118:9,11,12,13,17,23 ; 122:11,12 124:3 125:4 126:1,6,8,10 129:5,7 130:23 131-5 131:7 159:2,19,20 ____ j .{ j 1 ESQUIRE DEPOSITION SERVICES (415) 288-4280 166:25 192:10,19 196:16 197:14 199:2 199:7,11,15,15 200:3 200:9,14 201:3 204:17 206:11 211:9 212:9,17 214:16,22 218:7,8,24 222:16 226:15,20 227:3 228:19 229:1 248:10 252:1,21 263:8,17,21 264:2 265:12 275:15 275:16,17,25 276:6,6 276:8,12,15,16,25 277:13,14 290:15 293:3,23 294:10 295:14 296:9 297:3 297:21 298:11 300:20 304:11,14 312:19 313:9,14,24 314:2,7,24 315:3 316:6,20 papers 86:15 107:9 117:7,16,21 119:25 120:3,5 122:8,11 123:8,20 125:20 126:12 128:20,22 142:15,20 159:6,9 172:25 193:2 206:15 253:7 262:9,11 263:11 276:5,5,10 294:25 306:14,25 307:3 313:17 315:13 315:17316:11,14 320:25 parachute 255:6 256:17 parachutes 253:24 paragraph 96:25 219:16220:13 paragraphs 95:17 96:17 parameters 145:19 part 12:25 36:14 63:7 70:19 72:3 74:11 104:15 105:20 109:6 111:19 124:4 207:23 209:24 224:13 245:12 286:15 292:21 296:8,11 297:2,20 298:6,12 301:17310:19 partial 128:2,3 219:8 participate 113:11,16 114:5 162:9 272:23 participated 40:10 271:6 participating 108:4 113:24 particles 58:8 77:8 80:10 210:19,20,22 particular 100:21 103:16 204:4 216:3 219:18 224:14 233:17,19,20 253:2 particularly 25:10 120:20 221:24 parties 10:4 26:21 31:5 66:15 324:17 parts 25:16 28:11 32:22 35:16 36:4 42:7 98:24 203:9 284:25 318:6 party 41:25 123:3 211:2 part's 149:17 pass 85:16 249:23 path 177:10 pathological 291:19 pathologies 222:4 pathologist 291:20 310:11 pathologists 222:5 pathway 81:4 pattern 178:4,6 Paul3:12 276:14 Paustenbach 1:15 2:15 5:3 6:2 8:4,10 11:1 16:22 19:7 20:19 21:1,1525:13 26:18 28:1 29:4,5 32:17 34:4 35:7 38:10,15 40:1,2,9 44:20 46:16 49:13 55:23 56:13 65:2 66:25 67:1,6,9 67:15,16 68:4,15,20 68:21 70:11 72:20 76:23 87:4 90:24 93:2 98:2,12,19 100:8 102:13 106:2 137:7 158:4,19 160:12,19 162:12,25 167:2 168:22 177:3 179:18 187:20 198:7 198:15 221:5,6 234:4 256:10 263:7 273:10 273:11 285:2 294:3 300:18 301:19 309:17 316:1 322:1,9 323:9,20 Paustenbach's 11:22 26:1549:1967:13,20 76:11 161:16 267:6 309:9 Paving 312:9 pay 111:13 123:7 164:21 paying 123:4 payment 11:9,19 payments 12:19 peak 59:13,14 286:9 peer 209:11 216:6 peer-reviewed 88:3 216:14,18 217:6,24 218:8 pejorative 175:7 pejoratively 175:14 PEL 187:12,15,23 188:8 231:2,7 232:22 233:2 pen 87:4 89:5,8 penalty 323:10 pending 31:1 69:15 138:19 people 58:18 59:8,17 61:3,19 62:21 63:5 63:11 65:9 70:16 87:23 107:5 108:9,17 109:5 112:24 113:18 114:1,17,22 117:15 129:13,15,18,19 132:2 133:18 143:20 143:24 144:2,25 148:4,9,10 150:14,14 151:22 171:18 175:2 178:11 181:12 186:9 186:17,20 188:7,13 189:11,14 193:18 195:2,7 202:21,25 205:12 207:7 208:9 208:11 214:7,8 215:2 217:13 220:8,9 221:14,18 225:20 226:13 227:1,6 238:7 240:17 243:4,23,24 249:13 250:14 251:3 253:9,23 254:1,2,5,7 254:19,20 256:14 257:3 258:1 259:2,16 260:7,14,15 262:7 266:21 268:9,23 272:7,17,19 279:7,11 279:18 292:17 295:10 298:3 301:24 303:5,6 312:1,3 people's 194:4 267:7 perceive 172:11 percent61:13,13,14 70:11,23 129:6,10,17 138:25 139:1,12,22 139:23 141:6,22 142:2 143:5 144:5,9 161:17 192:2,11,18 192:18,20 228:11 230:11 232:16281:8 Page 19 281:10 315:9 percentage 54:20 138:14,24 139:3,18 140:5,20 142:5 191:23 192:5,6,24,25 193:9 282:14 perfectly 114:19 190:11 195:17 perform 66:16 151:19 176:24 261:21 performance 76:24 244:2 performed 62:8 70:16 106:10,23 107:12 112:6 114:25 116:6 138:1 146:22 149:11 149:12 164:12 165:15 170:23,24 182:22 183:7 202:25 207:6,14 230:17 250:2 291:10313:7 performing 62:25 67:5 79:25 104:13 313:6 period 12:1 31:4 61:7 63:25 84:20 86:19 116:13 139:5 140:23 141:8 154:21 155:17 157:13 158:18,22 159:25 227:1,3 291:13 296:4,13 perjury 323:10 permitted 31:10 person 60:21 61:23 77:13 116:15 144:17 151:25 206:22 224:14 231:12 237:5 312:25 personal 114:13 125:16 150:6 185:3,7 270:20 275:17 277:3 personally 36:14 37:11 69:18,20 113:18 153:22 242:6 270:25 persons 60:25 61:18 191:24 237:1 259:8 298:1 person's 47:6 237:14 perspective 67:1 99:13 139:15 188:13 260:12 276:24 pertain 18:12,22 21:3 42:6 pertaining 17:5 18:13 41:3 42:9 198:16 pertains 30:5 pertinent 32:2 per-car 288:6 PETERSON 3:15 PG&E 137:13 166:18 pharmaceutical 114:16 pharmacologists 114:18 phone 46:10 138:21 178:11 262:17,24 321:6 phones 179:10 phonetically 183:15 phosphorous 177:16 177:16 phrase 98:7 222:15 phrased 89:16 285:16 phrasing 309:17 physicians 108:16 114:17262:7 PH.D 1:15 2:15 5:3 8:4 323:9,21 picked 127:19 picky 125:13 pie 6:14 194:2 282:21 282:22 283:11,15,19 283:23 284:3,12,15 284:22,23 piece 55:15 165:11,12 200:1 209:2 283:23 310:24,25 pieces 25:2 103:25 284:15,23 pierce 4:14 73:25 82:14 82:15,21 Pinto 265:3,5,20 pipe 195:11 pivotal 103:25 place 28:14 66:18,18 122:15 164:25 207:17 214:21,23,24 214:25 279:2,18 324:8 placed 8:15 324:10 places 102:3 plaintiff 29:7,9,17 31:8 41:8 42:5 51:8 76:4 92:22 131:9,22 plaintiffs 1:4 2:4,16 3:2 3:65:7 8:12 11:4 15:23 21:1228:23 29:19,21 30:4,11,14 32:4 37:1 39:4 41:18 42:9,19,21 50:16,22 50:25 67:1 72:19 73:22 83:19 85:9 92:17 102:10 109:25 130:16 131:2 137:4 151:6 161:5 176:25 179:15 180:5,24 185:18 197:5 198:8 229:2 234:14 238:16 ESQUIRE DEPOSITION SERVICES (415) 288-4280 utn.ii 263:4 283:8 303:8,12 303:16,24 307:13,15 307:25 308:6 plaintiffs 143:20 plane 186:17 255:5 planes 253:24 plaques 234:19 235:7 plate 287:3 plausible 131:16 151:23 159:14 237:13 play 242:23 245:12 played 164:18 Plaza 3:22 please 14:6 36:18,22,23 42:14 57:4 69:9 74:2 82:1 83:4,18 87:13 126:21 156:20 159:8 162:7 179:21 198:19 246:17 252:18 294:7 309:21 pleasure 179:8 plenty 317:23 pleura 235:11,14 pleural 234:19 235:7 235:11 plumbing 225:11,18 228:16 plus 144:19,20 166:5 217:16 Pneumo4:6 pocket 156:3 point 10:17 15:9 20:12 42:2 58:16 62:15 69:23 72:1 73:9,13 76:16 85:15,24 91:23 97:13 98:3 110:20 121:23 126:7 146:1 148:3 153:1 164:24 169:17,20 179:5 224:3 248:23 278:18 285:8 302:22 311:11 . 311:12 points 298:16 pollution 5:17 106:12 112:17 polymer 165:10 poor 125:16 252:5,25 pop 278:25 pops 184:3 population 148:6,8 191:19222:1 250:10 250:25 251:10 258:8 populations 146:10 148:4,14 Porsche 267:15,22 portion 72:7 223:20 279:25 portions 25:2 278:12 pose 107:22 133:13 262:3 284:9 position 15:6,9 27:16 28:24 39:5 40:17 41:17 43:19 75:24 103:20 132:10,14 167:11 299:22 positions 100:4 positive 250:12 positives 194:15 possession 21:15 23:11 26:6,15 28:2 29:3,6,8 30:5 32:7,8 322:5 possibilities 132:9 possibility 64:9 80:14 121:15 249:1 250:16 250:19 possible 45:16 96:1,4 96:14,22 97:5 114:13 132:13,18 140:3 141:13,15 178:8 207:25 218:19 237:5 239:20 249:12 281:11 284:24,25 285:3,5 307:3,5,6 possibly 118:6 286:5 poster 304:14 postulates 222:12 post-1985 226:12 potential 63:20 64:6,10 64:13 67:7 76:24 77:3,3,9,14,23 78:7 78:14,17 79:4,8 80:2 80:4,6,13 88:7 101:19 104:13 108:4 149:23 158:20 188:20 190:5 241:12 266:2 281:20 312:14 potentially 86:8 133:16 176:23 309:14 power 311:6 powerful 194:11 PowerPoint 6:18,21,24 7:2 32:18 33:4 34:5 34:17 35:13 307:19 practical 109:8,10 practice 84:19 117:14 118:14 151:24 190:13,15 233:18 288:23 296:12 301:17 practices 149:7 150:7 189:5,16 204:9 205:17 206:20,24 207:9,16 208:12,20 233:1 234:7 293:6,9 practicing 108:15 113:21 Praglin 110:23 111:16 111:21,25 117:10 118:2 119:5 146:12 147:1,5,25 171:15 317:20 pre 227:6 prebeveled 150:4,5 precise 125:4 141:11 precisely 193:17 precision 145:14 149:20 precursors 19:9 predecessor 104:1 predict 99:17,19 293:14 predominant 63:7 preface 106:3 prefer 118:1 154:18 preferred 105:4,5 preliminary 6:20 19:9 65:17 70:2 71:10,12 72:4 73:4,12 121:8 178:22 305:10 premises 105:9 prep 166:9 preparation 27:18 320:18 321:1 prepare 142:10 180:17 306:18,24 prepared 180:1 198:9 preparing 121:15 158:20 presence 261:18 305:14 present 4:11,14,17 11:13 36:14 61:4 305:15 306:16 presentation 6:18,21 6:24 7:2 36:15 306:18 307:19 presentations 32:18 33:5 34:5,17 35:13 36:2 37:8 40:8 41:10 306:20,25 presented 33:4 60:20 61:25 90:5 94:8 100:18,22 104:23 119:6 146:1 199:6 212:7 213:7 291:4 304:14,20,22 presenting 307:3 preserve 44:7 preserved 17:21 president 70:14 167:12 254:15,18 pretty 63:10 121:18 124:25 154:6 208:17 242:8 268:10 284:18 298:21 prevail 183:1 prevailing 242:18,19 prevalent 293:17 Preventing 5:14 85:6 86:1 103:13 previous 239:8 previously 15:11 27:12 34:6 119:18 135:5,13 166:3,4 169:1 Price 57:11 PRIEST 3:11 primarily 53:10 58:25 197:9 primary 45:21 49:9 54:3 63:6 261:12 principal 167:13,16,17 printed 37:20 90:5 printout 102:21 prior 9:7 10:7 24:23 25:15,17,18 26:13,21 27:7,20 28:5,6 30:5 34:17 40:13 41:15 74:17 121:22 126:5 130:2,21 135:6 154:13 189:20 225:24 320:17 324:9 privacy 168:23 170:5 private 36:2 privilege 17:12 24:7,10 64:16,20 66:10,11,14 66:20 68:23 70:1,1,4 71:25 72:5,22 73:21 74:18 179:3 privileged 17:13 23:3 65:21 69:24 probabilities 147:10 probability 146:3 194:14 195:14 212:21,23 213:4,21 214:10,15 215:7 probable 74:7 probablies 158:11 probably 22:8 36:11 58:15 63:14 75:22 76:15 82:17,25 99:15 99:21 101:25 105:4 121:17 139:23 142:23 143:8 144:10 150:12 155:22,23 156:9,18 158:1,10 166:4 171:21 184:18 191:21 195:23 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262:1,3 266:3 professional 36:7 42:4 92:24 125:5,9 144:21 ! 146:20 147:19 172:19 174:5 176:24 177:5 180:22 181:5 223:20 274:15,19,20 277:16 317:1,11 professionally 35:18 ESQUIRE DEPOSITION SERVICES (415) 288-4280 ______________ Page 2. 277:5 professionals 262:2 profession's 277:18 profits 138:11 progress 216:4 progression 175:4,22 176:12 project 164:15,18,22 165:24 projects 167:17 promised 290:16 promoted 105:18 prompting 299:25 Prop 186:16 proper 26:20 27:16 28:741:1868:13 89:15 99:3 101:5 118:18 125:11 properly 17:21 84:10 100:5 160:15 257:19 property 55:9 185:3,5 185:6 proportion 239:14 280:25 281:2,17 283:20 proposition 97:7 propositions 276:16,19 pros 188:17 protect 6:4 185:16 241:20 243:4 protected 66:11,14 72:13,24 73:20 protecting 103:1 protection 88:23 271:19 protective 5:9 9:22 11:2 38:18,19 79:6 79:10,11 protocol 108:22 115:4 proud 171:16 prove 247:17 provide 9:12 10:9,12 13:23 15:19 26:12,21 27:11 28:21 39:8 40:15,18,18 43:21 132:10,15 147:4 156:15,17,20 158:9 158:21,24 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Rabinowitz47:10 radar 231:20 radiation 217:9,12,23 218:3 radionuclides 145:6 177:17 railroad 182:16,21 183:1,2 275:13 raise 17:11 24:7 32:23 104:12 raised 15:5,11 38:1 112:7 277:4 raises 59:20 219:20 range 71:24 72:8 84:11 139:23 141:18,20 146:3 147:10 148:20 149:1,2 151:18 153:19 154:9 166:5 230:12 267:7 rare 205:7 222:3 317:1 rate 82:3,16 193:8 253:1,5,14 254:21 255:11256:19 257:7 257:15,16,17 261:7,8 298:5 rates 251:15 258:7 260:23 261:3,6 rating 267:22 ratio 211:20,22 212:6 212:15 213:25 214:20 215:11 229:10,11 rationality 254:17 ratios 228:10 reach 179:9 226:22 235:11 239:8 reached 73:17 216:13 reaches 235:14 read 10:3 17:2 19:20 35:12,16 36:9 61:17 63:10 69:9,10,13 79:13 95:17 101:20 101:21 103:6 120:5 126:22 128:2 131:6 135:8,17 146:14 155:3 157:25 164:2 167:6 186:20 187:9 187:24,25 193:15,16 201:2,10 204:17 211:14 228:2 236:1,4 236:10 238:23 239:2 246:18 252:18,19 260:2 266:11 280:19 289:10,13 292:6,8 294:14,19,21 308:24 308:25 309:12,15 318:9,16 320:24 321:15,17 323:10 reader's 49:19 56:11 276:24 readily 34:14,21 reading 86:17 162:19 162:20215:1320:21 real 133:16,24 151:7 186:9 239:13 243:17 i j i : ; i i : i : ; : | 5 ] J j j =8 ESQUIRE DEPOSITION SERVICES (415) 288-4280 247:25 248:25 253:2 269:5,6,9,17,20,24 really 10:1 13:2 49:22 87:1 104:16 116:16 117:17 130:17 140:9 146:10 150:18 162:3 166:11 167:9 194:5 201:7 202:15,18 205:18 214:7 247:11 251:1 270:5 283:3 295:8 311:7 reanalysis 206:12 reask 46:16 reason 12:22 55:2,16 68:2,11 117:13 122:24 126:15 137:24 141:10,14 150:13 166:7 179:5 251:13 288:24 291:3 315:23 reasonable 12:1 29:2 62:2 186:10 244:10 249:17 266:1 267:6,8 reasonableness 241:4,8 246:7,13 248:25 reasonably 73:6 121:11 121:13 145:16 245:25 reasons41:20 58:13 68:18 109:11 147:6 253:16 278:14,16,17 reassembled 79:14 REBECCA 3:7 recall 45:13 104:4 109:18 111:14 115:20 117:11,12,24 170:10 182:11 183:12 199:16 206:14 218:18 251:14 265:9,20 276:12 287:13 290:3 298:14 301:1 313:5 313:10 315:8 317:2 317:13 319:7 receive 103:4,5 135:16 138:11 168:17 242:4 received 25:3,4 111:1 111:15 168:16,19,22 169:16,21 210:8 234:9 281:1,16 302:6 recess 44:16 69:1,5 136:3 137:1 179:12 198:3 233:25 256:6 289:18 reciprocal 29:23,24 30:4 31:8 34:13 38:5 39:14 40:14,22 41:1 41:23 42:9 43:20 recognition 240:14 recognize 181:13 247:10 recognized 116:24 recognizes 59:13 recollection 108:14,22 109:20 110:24 117:25 120:4,11 225:4,8 235:9 263:19 287:15 309:4,10 313:8 recollections 206:18 recommend 189:7 recommendations 185:23,24 186:3 189:24 reconstructing 144:22 reconstruction 144:13 144:15 145:7 146:22 record 10:24 12:4,5,7,8 12:11,20 13:10,12,14 13:15,18 15:4,4,13 16:3 17:21 18:25 19:1,3,4 20:18 27:3 36:24 37:6 44:9,17 69:3,6,10,13 73:13 83:16 92:9,11,19 95:10,11,13 101:21 106:4,5,6,7 121:25 122:1,3,4 126:22 127:24,25 129:23 134:21 136:1 137:2 155:3 160:20 178:14 178:15,16 179:13,21 187:9,25 193:16 197:22,25 198:1,4,7 198:13 228:6 234:1 236:1,4 246:18 252:19 256:5,7 260:2 278:20 282:4 289:16 289:19 292:8 294:14 294:15,16,21 297:17 303:18 308:25 309:4 309:8 317:9 318:9 322:7,9 324:11 recorded 264:16 recordings 25:14 records 22:18 121:21 131:13 152:16 161:4 161:10,12 red 87:5 89:8,8 redacted 12:19 161:8 redo 285:13 reduce 97:8 190:10 reduced 97:4 reduces 190:20 reducing 190:12,20,21 210:2 245:11 refer 37:4 56:17 315:13 reference 197:14 305:24 313:6 ' references 235:4 referred 143:10 157:9 216:18 252:9 referring 55:4 68:21 83:16 93:3 111:18,25 115:17 134:4214:15 219:10 234:25 265:3 269:13 290:20 306:23 reflect 11:19 103:17 298:9 reflected 99:20 reflecting 11:9 reflects 275:25 refresh 263:19 321:1 refuse 29:19 refute 130:12 132:14 regard 9:22 16:17 24:7 28:21 46:3,18 53:1 64:22 81:7 98:20,23 119:25 139:15 145:7 146:21 147:9 149:13 151:10 162:12 174:9 174:11 191:19 202:16 203:12 207:3 218:15 222:15 234:23 244:18 266:2 280:19 285:24 300:5 300:6 302:1 312:19 regarding 9:4 11:2,9 11:15,19 12:19 18:3 18:7,15 20:6 24:10 24:13 26:18 27:20 35:15 38:9,13 39:17 49:11,15 52:18 55:7 55:22 56:14 57:1 60:7,15 61:6 62:5 67:3 77:20 79:15 80:13 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65:3,15 67:21 90:14 93:4 95:23 relevance 80:9 relevant 25:6 28:6,7 67:24 72:6 73:14,15 73:16,18 227:15 234:8 316:13 reliance 14:14 251:23 322:1 relied 115:7 174:25 197:9 relies 88:13 rely 14:2 55:18,19 67:16,17,23 68:1,3 72:15 73:7 74:14,16 87:21 96:15 145:22 171:10 179:1,4 197:10 198:10 Page 22 202:11 229:7 316:14 : relying 26:24 28:20,22 i 39:6,8,10,19,22 40:19 64:22 65:23 66:9,19 67:9 70:3 72:2,23 73:12 96:16 121:22213:17 276:19 j remain 54:22 93:20 94:1 j remained 139:23 remaining 95:17 i remarkable 194:16,21 195:25 ; remediating 279:17 remediation 278:13 279:5 remember 78:15 85:14 I 85:15 118:19 162:25 ; 195:24 249:7 276:13 279:13 285:20 299:13 300:11 ; remembers 162:22 removal 6:19 84:15 304:12 305:9,25 remove 150:20 287:2 i removed 78:22 j removing 50:24 render 74:9 reopen 30:20 repair 62:5 76:25 80:14 84:24 104:13 199:25 203:13,19,22 203:25 204:2 224:21 ' 225:12,18 228:12,15 : 228:17,19291:11 304:19 305:21 306:5 ; repairs 7:4 313:4 I repeat 135:9,11 230:8 ! repeated 230:7,15 repetitive 25:7 < rephrase 89:19 319:3 j replacement 271:7 report 65:12 83:6 j j 88:18 127:21 135:17 195:15 200:23 212:10 238:5 279:12 289:23,25 290:8 295:18 296:2 299:2,5 301:24 302:14 j 308:12 J reported 1:22 127:9,16 127:21 151:6,10 195:15 199:22,24 205:19 225:23 251:5 251:9 290:3,7 298:20 reporter 2:21 8:13 11:5 27:8 37:2 83:20 ESQUIRE DEPOSITION SERVICES (415) 288-4280 85:10 102:11 110:1 128:1,3 131:3 137:5 177:1 179:16 180:6 180:25 185:19 197:6 229:3 233:22 234:15 238:17 263:5 283:9 294:13 303:9,25 307:14,16 308:1,7 309:15 322:5 324:5 reporters 28:13 reports 88:14 127:22 151:10 168:6 169:8 169:11 171:12297:1 298:13 301:6,11 repository 131:14 represent 8:11 248:15 284:13 representation 114:21 161:14 309:8 represented 283:20 284:20 represents 60:24 61:2 283:16 284:4 reprints 24:12,13,18 25:1 request 11:20 21:18 25:20,25 26:1,2,19 27:17,25 28:1,9 29:23 30:12,15,19,22 30:25 31:12,15 34:4 35:1,12 39:5 41:13 41:15,1842:1775:9 321:25 requested 8:21 13:5 14:12 15:17 44:4 322:1 requests 15:10,12 19:7 25:13 38:5,13,15,23 39:13 require 32:4 41:8 42:3 required 34:20 43:6 75:23 157:5 158:13 158:15 169:8 278:13 278:18 requirement 10:13 requires 161:22 247:5 requiring 42:23,24 43:4,25 161:23 reread 320:24 research 27:19 118:25 142:24 143:2 159:1 166:8 171:19 306:15 residual 287:2 resolve 23:7 resolved 25:19,24 33:1 respect 15:5,8,12,22 16:13 17:12 31:2,8 34:12 35:7 38:4 41:22 50:4 51:9,25 52:5,13 53:2 57:5,19 58:2,19 64:16,17,19 64:20 66:11 68:23 81:2 92:13 98:10 125:3,11 142:19 154:5 173:8 217:25 221:10 227:25 241:4 241:17 243:4 245:22 247:12 249:16 261:14 267:12,14 291:5 317:12 320:7 respects 92:16 respirable 81:17,23 respirator 77:13,18 187:5 188:14,18,19 231:12275:13 respiratory 271:18 respond 48:3,4,5 65:10 66:25 74:6 75:8 90:3 101:7,8,9 105:1 154:25 156:21 157:2 157:4 responds 164:3 response 34:10 92:16 92:18 124:12 156:20 158:1,7,8 171:2 309:14 responses 114:21 156:9 responsibility 241:23 261:12 responsible 104:18 167:16 responsive 17:1 32:18 35:8 restate 284:9 318:11 restaurant 186:18 restricted 41:5 213:22 restriction 9:14 124:23 restrictions 125:20 restructuring 189:19 result 193:7 237:6 253:2 258:3 264:10 279:16281:1,13 282:17291:18 resultant 272:6 resulting 84:14 265:1 results 65:8 67:10 71:7 71:10,13,21,24 110:14 148:1 220:15 221:17,24 228:7 229:24 251:17 retained 140:11 155:15 184:23 320:5 retainer 19:12 137:12 retraction 113:4,4 retrieving 82:2 retrospect 276:23 returned 126:5 revealed 133:5 134:8 134:12 135:6,13 reveals 128:24 review 99:21 108:21 114:19 132:10 133:4 181:2 209:11 216:6 315:25 316:12,15,19 316:20,24 reviewed 100:14 108:21 128:8 reviewing 154:16 revised 126:10 revision 315:5,10 revisions 125:14 317:6 re-analysis 112:3 re-analyzing 111:7 re-evaluate 111:13 Ribbon 113:8 316:22 ride 266:24 268:7 riding 268:13,15,17,21 ridulous 157:22 right 9:13 12:22 14:7 21:21 22:1724:19 28:25 35:21 40:24 42:21 43:15,16 44:7 49:3 57:8 60:3 61:9 66:3,15 70:9 74:5 76:15 82:19 84:25 85:16 98:9 105:10 107:15 108:12 109:11 114:8 115:2 115:12 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stocks 169:9 stomach 110:8 112:9 112:20 ESQUIRE DEPOSITION SERVICES (415) 288-4280 Page 26 stop 198:12 243:10 244:16 256:23 stopping 244:15 store 232:6 story 122:13 224:17 279:1 straight 228:6 Street 2:17 3:4,8,12 4:16 strength 221:24 strenuously 16:4 strike 210:15 300:3 stripper 274:4 strong 51:18 207:24 208:1 stronger 53:16 struck 240:19 structured 75:6 struggle 281:12 struggling 172:4 student 272:21 studied 45:18 110:10 113:6 129:9,20 177:9 208:16 221:18 226:18 298:3 studies 6:6 14:2 52:7 73:1,6,24 74:19 75:20,20,21 76:5,6,9 78:13 83:6 84:1,7 91:13 104:5 107:4 109:22 112:6,16,22 113:25 114:14,17,24 116:4 127:20 129:14 134:2 144:25 194:18 196:3,13 197:3,9 198:10,17 201:13 202:7 203:11209:4,5 209:13,15,20 210:21 211:1 221:11 224:12 224:15 246:15 248:5 248:6 250:1,9 251:6 251:20,23 252:2,5,6 252:7,8,25 253:3 266:18 272:5,11,14 272:17 273:1,14 274:2,21 275:7,9 293:2,15,23 294:23 295:10 297:24 298:15,17,18 300:14 300:18 311:2,18 study 6:8,20 59:9 67:10 69:1973:1676:11,11 76:12 91:18 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