Document jDxx5VeZ1ooRjD9NoBxvQ40R

1 ! ) { 1t i 8 5 1 t'2 0 * L A Z O ft P C N C A O /iN or m u n c ie . in 47302 PLAINTIFFS EXHIBIT 09?Z'0O Sr. QaJ\ IWxn P. 3303 3262 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 2 BEAUMONT DIVISION 3 CLAUDE CIMINO, et al.. * 4* Plaintiffs, * 5* V. * 6* RAYMARK INDUSTRIES, INC., * 7 et al., * CIVIL ACTION NO. B-86-456-CA Beaumont, Texas March 2, 1990 9:00 O'clock A.M 8 Defendants. * * * * * ********** * 9 MORNING SESSION 10 TRANSCRIPT OF TRIAL BEFORE THE HONORABLE ROBERT M. PARKER 11 UNITED STATES DISTRICT JUDGE, JURY VOLUME XXIX 12 APPEARANCES: 13 For the Plaintiffs: 14 15 16 \ MR. WALTER UMPHREY MR. GREG THOMPSON MR. DIANE DWIGHT MR. PAUL F. FERGUSON, Umphrey, Swearingen Eddins & Carver JR. P.O. Box 4905 17 Beaumont, Texas 77704 18 For Defendant Fibreboard: MR. ROBERT S. DAGGETT MR. GARY S. FERGUS 19 Brobeck, Phleger & Harrison Sari Francisco, California 20 21 .. Court Reporters 22 23 C. FRANK MCMILLAN SUSAN SIMMONS P. O. Box 2664 Beaumont, Texas 77704 (409) 839-2518 (409) 860-4542 Proceedings recorded by stenograph shorthand; transcript produced by CAT system. PLAINTIFFS | EXHIBIT 3263 1 APPEARANCES CONTINUED 2 ATTORNEYS FOR THE PLAINTIFFS: 3 MR. RON MOTLEY MR. JOE RICE 4 MR. TIM EBLE MR. JACKIE RION 5 Ness, Motley, Loadholt, Richardson & Poole 6 P.O. Box 1137 Charleston, S.C. 29402 7 MR. WAYNE REAUD 8 MR. JOE BLANKS Reaud, Morgan & Quinn 9 909 Laurel Beaumont, Texas 77701 10 11 ATTORNEY FOR DEFENDANT FIBREBOARD CORPORATION: 12 MR. LYN STEVENS Weller, Wheelus & Green 13 P.O. Box 350 Beaumont, Texas 77704-350 14 15 ATTORNEYS FOR DEFENDANT PITTSBURGH CORNING CORPORATION: MR. HENRY G. GARRARD, III 16 MR. WILLIAM D. HARVARD Blasingame, Burch, Garrard 17 & Bryant, P.C. 440 College Avenue North 18 Athens, Georgia 30603 19 MR. PHIL BROWN 20 MR. ROBERT FANNING Fanning, Harper & Martinson 21 Third Floor Preston Commons West 8117 Preston Road 22 Dallas, Texas 75225 23 24 25 3264 1 APPEARANCES CONTINUED 2 ATTORNEY FOR DEFENDANT CELOTEX CORPORATION: 3 MR. ROBERT ARREDONDO Butler & Binion 4 1000 Louisiana/ Suite 1500 Houston, Texas 77002 5 6 ATTORNEY FOR DEFENDANT CAREY-CANADA, INCORPORATED: MS. ELIZABETH THOMPSON 7 Butler & Binion 1000 Louisiana, Suite 1500 8 Houston, Texas 77002 9 ATTORNEY FOR DEFENDANT ASBESTOS CORPORATION LIMITED (ACL): 10 MR. MICHAEL BAKER Strong, Pipkin, Nelson & 11 Bissell 595 Orleans 12 Beaumont, Texas 77701-3255 13 14 15 16 17 18 19 20 21 22 23 24 25 1 INDEX 2 WITNESS: CLAUDE CIMINO 3 Direct Examination by Mr. Thompson 4 5 WITNESS: HENRY A. PERLMUTTER 6 Plaintiffs' Deposition Summary Defendants' Deposition Summary 7 WITNESS: FRANK PAUL MOONEY 8 Direct Examination by Mr. Rice 9 Cross-Examination by Mr. Daggett Cross-Examination by Mr. Harvard 10 Cross-Examination by Mr. Arredondo Redirect Examinationby Mr. Rice 11 Recross-Examination by Mr. Daggett 12 WITNESS: DR. WILLIAM JOHNSTON 13 Direct Examination by Mr. Motley Cross-Examination by Mr. Garrard 14 15 16 17 18 19 20 21 22 23 24 25 3265 PAGE 3274 PAGE 3275 3280 PAGE 3282 3290 3294 3295 3296 3299 PAGE 3303 3352 3303 1 THE COURT: Mr. Mooney, thank you. You're excused, 2 sir. 3 THE WITNESS: Yes, sir. 4 THE COURT: Next witness. 5 MR. MOTLEY: Dr. William Johnston. 6 MR. RION: Your Honor, we have some notebooks, five 7 or six exhibits for the jurors. 8 DR. WILLIAM JOHNSTON, PLAINTIFFS' WITNESS, SWORN 9 THE COURT: Doctor, take your seat right here, 10 please, sir. 11 MR. MOTLEY: May I proceed. Your Honor? 12 Your Honor, in the interest of time, may I summate 13 the qualifications of the Doctor and ask him if,he affirms \ 14 that what I say is true? 15 DIRECT EXAMINATION 16 BY MR. MOTLEY: 17 Q First of all. Dr. Johnston, state your name and age for 18 the record. 19 A Yes. My name is Dr. William Michael Johnston. My age 20 is forty-nine. / 21 Q And where do you live, sir? 22 A In Augusta, Georgia. 23 Q Are you a married man? 24 A Yes, I am. 25 Q And do you have children? 3304 1 A Yes. 2 Q What is your current professional position? 3 A I'm chief of the pulmonary disease service at Eisenhower 4 Army Medical Center. I'm a colonel in the United States 5 Army. 6 MR. MOTLEY: Ladies and gentlemen of the jury, the 7 Judge has given me permission to save some time to state Dr. 8 Johnston's credentials. May I do it from here. Your Honor, 9 so I don't have to talk so much. My voice is a little raspy 10 today. 11 Dr. William Johnston is currently a colonel in the 12 United States Army. He is stationed at and practices 13 medicine at the Dwight D. Eisenhower Medical Center at Port % 14 Gordon, Georgia. Dr. Johnston practices pulmonary medicine. 15 Dr. Johnston is an associate clinical professor of medicine 16 at the Medical College of Georgia. He is Board-certified in 17 internal medicine, preventive medicine and pulmonary 18 medicine. He has a medical degree from Stanford University 19 near -- I was going to tell them near San Francisco -- in / 20 1968 and studied for two years at the Harvard University 21 School of Public Health where he received master's degrees 22 in public health and industrial health in 1970 and 1971. 23 Following graduation from Harvard, Dr. Johnston 24 joined the United States Government. He became affiliated 25 with the United States Public Health Service as an 3305 1 occupational doctor with the rank of medical officer 2 assigned to the National Institute of Occupational Safety 3 and Health, which is the scientific arm of OSHA in 4 Cincinnati, Ohio in July of 1971. 5 Shortly after joining the Federal Government, he 6 was promoted to the position of acting deputy director, 7 division of field studies and clinical investigation as 8 chief medical officer for that governmental organization. 9 As such, he was concerned with industrywide studies of 10 occupational environment. That's in 1971. Dr. Johnston 11 remained with the United States Government in service with 12 NIOSH until 1973 when he left the government to continue his 13 training in internal medicine and lung diseases; 14 Dr. Johnston obtained his board certification as a 15 lung specialist in 1980. Shortly after Dr. Johnston joined 16 the United States Government in July of 1971, he became 17 personally knowledgeable about Pittsburgh Corning 18 Corporation and Pittsburgh Plate and Glass and the asbestos 19 problems associated with Pittsburgh Corning Corporation in / 20 Port Allegany, Pennsylvania and Tyler, Texas at their 21 Unibestos manufacturing plant. 22 Dr. Johnston was requested by the Plaintiffs in 23 this case to appear here at trial and has the permission of 24 the United States Army to do so as an individual citizen. 25 BY MR. MOTLEY: 3306 1 Q Dr. Johnston, is the above summary correct and accurate ) 2 to best of your personal knowledge? 3 A Yes, it is. ; 4 Q Doctor, did you study the asbestos diseases in medical 5 school in the 1960's and later at Harvard? 6 A Yes. 7 Q Do you agree that asbestos diseases are serious and can 8 cause death? 9 A Yes. 10 Q Have you ever testified in a court of law in front of a 11 jury in your life? 12 A No, I have not. 13 ) 14 Q Are you nervous? A Yes. 15 Q Can we give the doctor some water, please, Mr. Rice? He 16 asked me that and I forgot. 17 Now, Dr. Johnston, you have personal eyewitness 18 knowledge, do you not, sir, about the conditions of exposure 19 of human beings employed by Pittsburgh Corning at their / 20 Unibestos facilities; is that correct? 21 A Yes, sir. 22 _ Q In this case, sir, very serious allegations have been 23 made by myself on behalf of my clients against Pittsburgh 24 J 25 Corning. I ask you to pay very close and careful attention to the questions both sides ask you. 0 5 1 1 - 2 0 * 1 . A Z O R p e n g a d in d y M U N C lE . IN 4 7 3 0 2I 3307 1 Now, you affirmed a moment ago that shortly after you 2 joined the United States Government you became personally 3 knowledgeable about asbestos problems at Pittsburgh Corning. 4 A Yes, within the first two weeks at the National 5 Institute for Occupational Safety & Health, I was shown the 6 files dealing with the asbestos studies that have been 7 conducted by the U.S. Public Health Service. 8 Q And those studies that preceded the study your 9 investigation occurred in what year? 10 A 1967 to 1970 at the Pittsburgh Corning facilities. 11 Q Now, Doctor, tell the ladies and gentlemen of the jury 12 whether or not within two weeks of your joining the 13 Government you found out that there was a serious health 14 problem to human beings at the Pittsburgh Corning plant. 15 A Well, the United States Public Health Service had been 16 involved in looking at plants throughout the country and the 17 two plants that stuck out the most as having the highest 18 values were -- 19 Q Highest what? 20 A Highest exposure levels were the facilities in Tyler, 21 ..Texas and in Port Allegany, Pennsylvania. The other 22 facilities that have been looked at by the Public Health 23 Service involved what we call the asbestos textile industry 24 and those levels generally seemed to be in order of 25 magnitude less than or more than the levels that were 3308 1 documented in Tyler and in Port Allegany. They stuck out. 2 Q They stuck out as being the best or the worst? 3 A The worst. 4 Q Now, that's Pittsburgh Corning was the worst, correct? 5 A Yes. 6 Q All right. The jury has heard the name of Dr. Lee 7 Grant. After you joined the United States Government as a 8 medical officer for NIOSH, did you meet and talk to Dr. Lee i 9 Grant? 10 A Yes. Within that first month of July I had a telephone 11 conversation with Dr. Grant. 12 Q And who did he represent himself to be when you spoke to 13 him? % 14 A He was regarded as the medical consultant to Pittsburgh 15 Corning and the medical director of PPG Industries. 16 Q Did he tell .you he was the medical man you were to deal 17 with when you dealt with Pittsburgh Corning? 18 A Dr. Grant did, but one of the previous supervisors for 19 epidemiology at NIOSH indicated to me that Dr. Grant was the / 20 individual to talk, to Dr. Lewis Crowley. 21 Q And you talked to Dr. Grant, correct? 22 A Yes. 23 Q And he held himself out to be the medical man for 24 Pittsburgh Corning? 25 A Yes, sir. 3309 1 Q All right. Did you meet with a Mr. Farkos? 2 A In September three of us from the National Institute for 3 Occupational Safety & Health went to Port Allegany for a 4 meeting and a tour of the facility. One of the individuals 5 at the meeting representing Pittsburgh Corning was Mr. 6 Farkos. 7 Q And he was vice-president of personnel I believe? 8 A Yes, I believe that was the case. 9 Q Did you meet a Mr. Holman? 10 A Yes. 11 Q Some time during the time that you were involved with 12 investigating the health conditions at Pittsburgh Coming's 13 plant? 14 A He was at the facility at Port Allegany. He was the 15 vice-president of manufacturing Pittsburgh Corning. 16 Q Did you meet with a Mr. Van Horne? 17 A Not until late in October. Mr. Van Horne was the plant 18 manager at that time of the facility in Tyler. 19 Q All right. Did you yourself, William Johnston, as part 20 of your official investigation of the health conditions at 21 the Pittsburgh Corning asbestos factories, visit Port 22 Allegany and Tyler? 23 A Yes. 24 Q Did you become familiar, sir, with an insulation product 25 manufactured by Pittsburgh Corning, called "Unibestos"? 3310 1 A That was the name of their amosite product. It was 2 their -- as far as I know -- main product, or only product 3 in Tyler. And it was their asbestos product at Port 4 Allegany. And they did have, I think, two or three other 5 product lines that did not deal with asbestos, at the Port 6 Allegany facility. 7 Q All right, sir. Were you told by Pittsburgh Corning 8 officials what was contained in Unibestos? How much 9 asbestos? 10 A In our report we indicated ninety percent. 11 Q Did you get that information from Pittsburgh Corning 12 officials? 13 A I assume so, because that aspect of the repbrt involved 14 industrial hygienist that were familiar with the product and 15 the material. 16 Q All right. Now, Dr. Johnston, in a few words -- 17 MR. MOTLEY: -- if I may pause a moment. Your 18 Honor. 19 BY MR. MOTLEY: 20 Q Would you describe in your own words, sir, when you 21 visited the Tyler, Texas, facility north of here, tell the 22 jury, in 1971, nine years after they started this plant, 23 what condition you found that plant in, as far as human 24 beings and health is concerned. 25 A I think "filthy" was a good word for the inside of the 8 5 1 I-2 0 -L .A Z O R PC N G AO /lN O Y MUNCIC IN 4 7 3 0 2 3311 1 -Tyler, Texas, facility. 2 Q "Filthy"? 3 A Yes. 4 Q Did you find the workers to be knowledgeable about how 5 dangerous the asbestos that they were working with was? 6 A I don't really think so, because they didn't seem to be 7 exercising the degree of caution that one would expect from 8 that type of an exposure. They, you know -- 9 Q Just tell us what you saw when you went there. 10 A Their wearing of respirators was rather variable. Some 11 had them on; some didn't have them on right; some had them 12 draped down. There were some in some areas of the plant -- 13 you know, it was contaminated throughout -- didn't even have % 14 them. And we even observed some people eating in a section 15 or two of the plant. 16 Q Eating in the plant where the dust was flying around? 17 A Yes, sir. As I remember, also, they weren't provided 18 work clothing, which we would certainly regard as a good 19 practice today. 20 Q They were not? / 21 A Not to the best of my knowledge. 22 Q Was there dust all over the place? 23 A Yes. It was on the floor, on the equipment. You could 24 see some in the air. The plant was generally contaminated. 25 And it was apparent to us that some of the ventilation 3312 1 ducts, particularly in one area, I believe, were plugged. 2 Q Plugged with what? 3 A Asbestos material. 4 Q Dr. Johnston, in 1986 the Occupational Safety & Health 5 Administration of the United States Government held hearings 6 on asbestos. And a gentleman named Morton Corn, who was the 7 Assistant Secretary of Labor, testified that the Pittsburgh 8 Corning Tyler plant -- 9 MR. GARRARD: Your Honor, I object to that. That's 10 hearsay. 11 MR. MOTLEY: It's an official government document. 12 Your Honor. 13 MR. GARRARD: Hearsay. ,No proof of that. 14 THE COURT: What's the purpose of your question. 15 Counsel? 16 MR. MOTLEY: The statement that is contained in the 17 official report of the government. Your Honor, is about this 18 plant that he visited. And I want to find out whether or 19 not he concurs with what was said. ! 20 THE COURT: Is the statement or the document in 21 .. evidence? 22 MR. MOTLEY: We are going to move its admission 23 into evidence. Your Honor. I believe it's listed on our 24 exhibit list, is it not, Mr. Thompson? 25 MR. THOMPSON: That entire document was listed on 3313 1 the exhibit list. Judge. And it's -- 2 MR. HARVARD: Could we have a number, please. 3 MR. THOMPSON: I'm not sure what number it is. 4 MR. MOTLEY: I will move on to something else until 5 we find the number -- 6 THE COURT: It's your representation that the 7 document is on the exhibit list. 8 MR. THOMPSON: It's our representation. Judge, that 9 the document was listed on the exhibit list as a learned 10 treatise not to go to the jury, but to be read from. 11 THE COURT: Overrule the objection. 12 BY MR. MOTLEY: 13 Q In 1986 Dr. Morton Corn testified to the Federal 14 Government that Tyler, Texas, was the dirtiest, filthiest 15 plant that he had ever been in, in regard to asbestos. Do 16 you agree with that, sir? 17 A That's my experience, yes, sir. 18 Q Dr. Johnston, you indicated that you became 19 knowledgeable about Pittsburgh Corning by looking at the / 20 reports of 1967 and i970 the Government had done before the 21 creation of OSHA, correct? 22 A Yes. 23 Q And those were dust studies that were done of Tyler? 24 A Yes. 25 Q I want to focus on Tyler right now. 3314 1 A Yes. 2 Q Dust studies of Tyler were in those files? 3 A Yes. 4 Q And did they show conditions similar to what you found 5 when you got there in 1971 -- the dust counts? 6 A Yes. 7 Q So, for four years there had been little or no change in 8 the type of work environment those men had to work in. Is 9 that fair? 10 A That's my understanding. 11 Q Now, sir, is it not true that Pittsburgh Corning 12 Corporation was called on the carpet by the United States 13 Government -- OSHA, NIOSH -- for the deplorable1 conditions 14 that existed in that plant for those men to work in, in 15 Tyler, Texas? 16 A Yes. We wro.te a very critical report. 17 Q Very critical report? 18 A Yes, very critical report. And forwarded that report to 19 the United States Department of Labor, OSHA. / 20 Q Now, sir, in addition to your investigation of the 21 unhealthy conditions of that plant, have you subsequently 22 learned that in 1969 Pittsburgh Corning was cited by the 23 Department of Labor for unhealthful conditions at that time? 24 A Yes, I learned that they had been cited for ventilation 25 problems. 3315 1 Q In April of 1969? 2 A I would have to look at my notes on the documents. But 3 they were 1969 -- 4 Q I asked you to assume it was April the 8th, 1969. Now, 5 sir, in the last several weeks, have I not sent you 6 documents in addition to the documents -- in addition to the 7 documents you had available in your files in 1971, for you 8 to look at? 9 A I think "several weeks" is inaccurate. It was just the 10 last week or so. 11 Q Okay. Ten days? 12 A At the most. 13 Q All right. Now, I sent you dpcuments yea thick 14 (indicating)? 15 A Oh, initially about so thick (indicating). 16 Q All right. I will give you an inch. 17 A Thank you. y 18 Q And these are documents, sir, that demonstrate that 19 other people had studied the Tyler and Port Allegany / 20 facilities, in addition to the government, correct? 21 ..A Yes, sir. 22 Q When you went to Tyler, Texas, in your official capacity 23 for the United States Government in 1971, did Dr. Grant or 24 Mr. Holman, the vice-president, or anybody give you these 25 documents for you to look at -- the ones I sent you? 3316 1 A No. 2 Q Doctor, the documents that I sent you indicate that 3 almost from Day One there was an asbestos health hazard at 4 Tyler, Texas, correct. 5 MR. GARRARD: Object to the form of the question. 6 Your Honor. Leading, argumentative. Objection to it. 7 THE COURT: Overruled. 8 BY MR. MOTLEY: 9 Q Is that not correct, sir? Do you want the question back 10 again? 11 A I was provided information dealing with the facility 12 owned by Pittsburgh Corning. And that was basically it, 13 yes, from Day One. \ 14 Q From Day One, a health hazard? 15 A During that time period, yes, sir. 16 Q Doctor, did I ask you to independently review these 17 documents so that you could come here and testify about your 18 own experience and offer us your personal observations about 19 these documents and your own personal experience? 20 A Yes. 21 Q Prior to my sending you these documents in the last 22 week, had you been aware of the existence of most of them? 23 A No. 24 Q Now, Doctor, before you went to Pittsburgh Coming's 25 facilities in 1971, were you professionally aware as a 3317 1 doctor and a gentleman holding a master's degree in public 2 health and industrial health, that there were dangers 3 associated with human beings breathing asbestos dust? 4 A I was acutely aware of that. 5 Q What dangers did you know about before you came to 6 Pittsburgh Corning, about the hazards of asbestos -- you 7 personally, William Johnston? 8 A I was concerned about three serious diseases. One was 9 asbestosis, or scarring of the lungs. The other thing I was 10 concerned about was the problem with lung cancer. And the 11 other area was mesothelioma. 12 Q The jury has heard those terms repeatedly in the last 13 three or four weeks. Doctor; so, we won't explain them. 14 Approximately when, sir, did you first speak, yourself, 15 with Dr. Lee Grant, the medical consultant to Pittsburgh 16 Corning? 17 A I spoke with him on the telephone in that July after I 18 became aware of the air sampling data of Tyler and Port 19 Allegany. 20 Q You spoke to Lee Grant in July of 1971, correct? 21 -A Yes. 22 Q And this was after you had looked at the government's 23 dust counts, right? 24 A Yes. 25 Q And you didn't have all this other stuff I've sent you 3318 1 in the last week when you talked to Dr. Grant, did you? 2 A That's correct. 3 Q Nevertheless, tell the jury what you told Dr. Grant 4 about the conditions under which the human beings that were 5 working for Pittsburgh Corning were being exposed 6 in those plants? 7 A I said on the basis of the levels that I was aware of, I 8 expected that there could be biological problems from those 9 exposures. 10 Q Define "biological problems." 11 A Biological problems are the type of responses that I 12 previously mentioned. I felt that there was the potential 13 for asbestosis, lung cancer and mesothelioma among the Tyler 14 employees. 15 Q Did you ask, in July of 1971, Dr. Grant what Pittsburgh 16 Corning proposed to do to protect these people making 17 Unibestos from getting sick from asbestosis, lung cancer and 18 mesothelioma? 19 A Well, he said in Tyler that the situation was so dusty ! 20 and uncomfortable that there was such a large turnover that 21 a lot of people didn't really stay around to get sick. 22 Q That was his attitude? 23 A I was shocked. 24 Q You were shocked? 25 A Uh-huh. 3319 1 Q Doctor, did you subsequently personally meet with Dr. 2 Lee Grant and visit the Pittsburgh Corning facilities at 3 Tyler and Port Allegany? . 4 A Yes, I did. 5 Q Doctor, independent of anything I have sent you in the 6 last week, in 1971, from your own observations and your own 7 knowledge about what you saw in these earlier studies, did 8 you conclude that Pittsburgh Corning had done little or 9 nothing to clean up the mess at Tyler? 10 A That was a fair conclusion. 11 MR. MOTLEY: Your Honor, we have now exhibits that 12 Your Honor has ruled on that we have notebooks for the jury 13 which I would like to ask the clerk to pass out at this 14 times so I can ask the Doctor about the documents. 15 MR. GARRARD: Your Honor, I believe there was one 16 exhibit they I had in there. 17 MR. RICE: It's been removed. The tab is still in 18 there and the exhibit has been removed. 19 MR. MOTLEY: Ladies and gentlemen, if we have done 20 our homework, the first one you should see is Exhibit 1266, 21 - dated November 16th, 1971. Does everyone have that? 22 BY MR. MOTLEY: 23 Q Doctor, do you have that, November 16th, 1971? 24 A Yes, I do. 25 Q All right. Doctor, are you the author? I guess we 3320 1 don't have it right? 2 A I am the co-author of this report. 3 Q It's Exhibit 1266,. should be the very first one. 4 A This is to Dr. Pevey, Texas State Health Department. 5 Q Wait a second, Doctor, we're having trouble finding it. 6 MR. MOTLEY: Your Honor, may I hand the juror my 7 copy? 8 THE COURT: He can see with the next juror. 9 Proceed. 10 BY MR. MOTLEY: 11 Q Dr. Johnston, did you author this with another 12 gentleman? Sir? 13 A Let me look at this a minute .here. 14 Q All right. 15 A This is just the air sampling data. I believe there is 16 a more comprehensive report. 17 Q I know that. But did you author that? 18 A I co-authored this particular transmittal letter, yes. 19 Q All right. And this is to the Commission of Health of ! 20 Texas, correct? 21 A Yes. 22 Q And you were expressing your findings? 23 A Yes. We were also expressing concerns about what we 24 viewed as medical problems. 25 Q You indicate in Paragraph 2 that NIOSH industrial 8 5 1 1 - 2 0 - L A Z O R PCNGA /DlNOV MUN IC .C IN 47302 1 i2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 J 25 3321 hygiene surveys in 1967 and 1970 yielded grossly excessive fiber concentration compared to current and proposed asbestos standards, did you not? A Yes. Q And then, sir, did you report that you had concluded that some of the men who worked at Tyler and were exposed to all of that dust had gotten sick, seven out of eighteen? A Yes, I did with -- we did not at that time have the benefit of the review of the chest x-rays that had been obtained on the Tyler workers. These chest x-rays were at the East Texas Chest Hospital, which is now the University of Texas Health Science Center at Tyler. But we did do physical examinations. We did ask some very specific questions. We had access to some breathing tests that had been done at the East Texas Chest Hospital. And on the basis of our physical examinations, on the basis of the presence of shortness of breath and on the basis of certain reduction in breathing capacity, we concluded that a number of the men met criteria for the diagnosis of asbestosis. And I believe that was seven of eighteen workers with greater than ten years of employment at the Tyler facilities. Q All right, sir. Now, if I would ask the ladies and gentlemen of the jury to turn to the next document and. Doctor, the document is No. 1274, Your Honor, dated December 3322 1 7th, 1971. 2 A All right, yes. 3 Q Now, this is the report that was requested both by the 4 Oil Chemical and Atomic Workers and by the State of Texas 5 Health Department, correct? 6 A Yes. 7 Q All right, sir. Now, Doctor, let me just ask you this 8 general question: You told the jury what you found when you 9 went there earlier, verbally you told them that? 10 A Uh-huh. 11 Q Correct? 12 A Yes. 13 Q Did you also tell in this report the same thing, but in 14 greater detail, what you found in the document the jury has 15 in front of them? 16 A Yes, we concluded there were major deficiencies in the 17 industrial hygiene, that there was a grossly inadequate 18 ventilation system and there were poor housekeeping 19 practices and Tom Annania (phon.), one of the senior 20 Industrial Hygienists in NIOSH, wrote a fairly descriptive 21 - analysis of those areas and the problems. 22 Q I would ask you. Doctor, and you, ladies and gentlemen 23 of the jury, to turn to Page 5. 24 Did you criticize Pittsburgh Coming's policy of 25 gathering up asbestos refuge, loading it on a truck and 3323 1 dumping it in a large field adjacent to the plant because 2 there had been no provision made to bury this material and 3 this practice has been carried out for at least fifteen 4 years and produces a serious air pollution problem? 5 A Yes, we were concerned about where the waste went and 6 had some discussion with Pittsburgh Corning about that. 7 Q Did you use the words that the ventilation system of the 8 entire plant was found to be grossly inadequate? 9 A Those are words that I have used, yes. 10 Q And that you said the floor, the ceilings and the 11 rafters had an excessive amount of dust on them, did you 12 find that when you went through there? 13 A Yes. \ 14 Q And you reported that, sir? 15 A Yes. 16 Q All right. Now, Dr. Johnston, as I said, Mr. Umphrey 17 and myself and my colleagues have made very serious charges 18 against Pittsburgh Corning. And in addition to the 19 violations of the U. S. Health Code that you have just 20 described, we have accused Pittsburgh Corning of submitting 21 misleading and false information to employees of Pittsburgh 22 Corning, to customers of Pittsburgh Corning and to the 23 United States Government. 24 I ask you to assume that I have made those allegations 25 on behalf of my client. Let me ask you this general 3324 1 question: Based on the materials that I have given you, is 2 it true or not true that Pittsburgh Corning submitted 3 misleading and indeed false information to their own 4 employees? 5 A Yes. 6 Q Is it true or not true that Pittsburgh Corning submitted 7 misleading and false information to customers who purchased 8 their Unibestos? 9 A I have seen a document that's very disturbing. 10 Q Well, is the answer to my question is true or not true? 11 A Yes, yes. 12 Q Yes, it is true. Yes, it is true that they have 13 submitted false and misleading information to their 14 customers. Do you agree that they have or they haven't, 15 sir? 16 A Yes, they have. 17 Q All right. And, sir, do you agree or disagree that 18 Pittsburgh Corning submitted false and misleading 19 information to the United States Government? ! 20 A Yes, they have. 21 Q All right, sir. Now, Doctor, back in 1971 when you 22 investigated Pittsburgh Corning for the United States 23 Government, did you attend an educational seminar that Dr. 24 Grant gave to the employees of Pittsburgh Coming's Port 25 Allegany plant? Were you, William Johnston, there? 3325 1 A Yes. 2 Q Did Dr. Lee Grant, when he for the first time told the 3 workers that Port Allegany, for the first time, about the 4 health hazard of asbestos, misstate any medical facts 5 regarding asbestosis to those employees? 6 A He said it would take twenty or more years to develop 7 asbestosis, given high exposure levels. 8 Q At that time in 1971 as an official of the United States 9 Government, did you correct Lee Grant on the spot? 10 A Yes, yes, and one of my co-workers provided him a 11 follow-up letter and we were concerned about it. 12 Q Now, Doctor, you corrected him on the spot, you just 13 said. In the last week, have I given you a document to look 14 at which proves that that was an outright lie to the 15 employees? 16 A Yes. 17 Q I would ask the ladies and gentlemen of the jury to look 18 at the exhibit dated November the 8th, 1965, 4414. 19 MR. GARRARD: Could I see what 4414 is, Mr. Motley? 20 MR. MOTLEY: December 1st, 1965. 21 THE WITNESS: What is the Plaintiffs' Exhibit 22 number? I have notes, but I -- 23 MR. RICE: December 21? 24 BY MR. MOTLEY: 25 Q December 1, 1965, Grant to file? 3326 1 A 12-1-65 regarding Tyler visit 11-8-65. 2 Q Do you, ladies and gentlemen, have December 1st? 3 Now, Doctor, I can read it to you if Mr. Rice can't find 4 it. Dr. Grant, in your presence in 1971, when for the first 5 time they got around to telling the workers there about 6 asbestos hazards told them it took twenty or more years 7 exposure to cause asbestosis, you heard him say that? 8 A Yes. 9 Q And you corrected him on the spot? 10 A Yes. 11 Q You didn't have this document that the jury is looking 12 at when you corrected him on the spot, did you? 13 A I obviously don't have it now%. But I have my notes. 14 Q Well, I've got one for you. I'm guilty just as they. 15 All right. Now, Doctor, that document is dated December 16 1st, 1965. And who is the author of it? 17 A Dr. Grant. 18 Q The same man who told the employees it took twenty years 19 to get sick, right? 20 A Yes. 21 ..Q The same man that boasted to you that the people didn't 22 work in the plant long enough to get sick because it was too 23 dirty to work there, correct? 24 A Right. 25 Q Now, tell the ladies and gentlemen of the jury what he 3327 1 reported to the file of about how long it takes to get 2 asbestosis? 3 A There had been one disability award for asbestosis, and 4 this award had been made in 1961. He mentions the' 5 individual, who had a five-year exposure. If you would like . 6 me to, and if I have the Court's permission, I will mention 7 the individual. 8 Q Well, they've got the -- 9 THE COURT: That doesn't matter. Doctor. 10 BY MR. MOTLEY: 11 Q Mr. Land. 12 THE COURT: The name doesn't matter? 13 A Mr. Land. 14 BY MR. MOTLEY: 15 Q All right. And how long had he worked with Unibestos 16 before he got his case of disabling asbestosis? 17 A According to this, five years. 18 Q So, when Dr. Grant told the employees it took twenty 19 years, he had in his own records a case where it only took t 20 five years? 21 A That's correct. 22 Q Doctor, -- 23 THE COURT: Good time for the break. Counsel? 24 MR. MOTLEY: Yes, sir. Maybe I can get my notebook 25 straight. 3328 1 THE COURT: All right. Twenty-minute break. I 2 need to see Mr. Harvard for just a moment during the break 3 and then Mr. Umphrey for just a moment. 4 We are in recess. 5 (RECESS AT 10:30 A.M. UNTIL 10:50 A.M.) 6 (JURY IN AT 10:50 A.M.) 7 CONTINUED DIRECT EXAMINATION 8 BY MR. MOTLEY: 9 Q Doctor, do you have the December 1st, 1965, document in 10 front of you? Now, let me -- 11 A Yes, I do. 12 Q Don't get them out of order. Let me just read it to 13 you, okay? To be fair. Doctor -- this is 4414,,ladies and % 14 gentlemen. The same one we had right before the break. 15 A This is December 1st, 1965? 16 Q Right. 17 A All right. 18 Q Would you look, sir, at Item No. 1, the Tyler plant, 19 "History of the Tyler plant." Do you see that? 20 A Yes. 21 Q It became a Unibestos plant in 1954? 22 A Yes. 23 Q Correct. Now, Pittsburgh Corning bought this plant, I 24 believe, in the summer of 1962, correct? Isn't that your 25 understanding? 3329 1 A It's my understanding they purchased it from UNARCO. 2 Q In 1962? 3 A Yes. 4 Q All right. So that the gentleman who had asbestosis 5 worked for UNARCO, the company from whom they purchased the 6 plant, correct? 7 A Yes. 8 Q But he was working with the same product, correct? 9 A Same product, same plant, same equipment, yes. 10 Q All right. Is that notice to Dr. Grant that it was a 11 hazard in that plant, in your opinion? 12 A Yes. 13 Q And down in No. 5, Doctor, does Dr. Grant point out that 14 there's a problem in housekeeping in that plant? 15 A Yes; he does. He indicates there's a twenty-inch fan 16 used to cool the batch loader, which obviously interferes 17 with the effectiveness of the dust collecting system in the 18 batch hoppers. The housekeeping is more difficult because 19 of the nature of the flooring, particularly in the building / 20 operation, where large amounts of fibrous material is 21 impregnated with the -- 22 Q Waterglass? 23 A -- and is stuck to the floors. Certainly some of this 24 must find its way back into the air. 25 Q And when you got there in 1971, was it a fact that some 3330 1 of the dust got back into the air for the men to breathe? 2 A Oh, yes. 3 Q Now, sir, I ask you and the ladies and gentlemen of the 4 jury -- let me point this out. Doctor. I sent you a stack 5 either this tall or this tall of documents (indicating), and 6 we obviously don't have time to go through all of them. Do 7 you understand that? , 8 A Yes. 9 Q But if you need to reference another document, you just 10 tell me and we'll try to find it. But X would like at this 11 time to direct your attention to Exhibit No. 1393, ladies 12 and gentlemen. 13 Doctor, this is a letter dated August 15th, 1966, from 14 Dr. Grant to Mr. Haskins (phon.) of the Bath Iron Works 15 Shipyard, August 15th, 1966. Bath Iron Works, Doctor, is a 16 shipyard, is it .not? 17 A Yes. 18 Q Now, Doctor, you just received this letter within the 19 last week, have you not? 20 A Yes. And the first time I have been over this in any 21 detail was yesterday. 22 Q And I believe it's fair for me and Mr. Harvard, who were 23 with you last night, that this document upsets you greatly, 24 does it not? 25 A Yes 3331 1 -Q Will you tell the jury why this document, August 15th, 2 1966, from Dr. Grant to Mr. Haskins at the shipyard, who 3 purchased Unibestos -- first of all, let me do this. 4 He says in this letter that "Dr. Grant was requested to 5 write to Mr. Haskins regarding the health experience of our 6 Pittsburgh Corning employees in the manufacturing of 7 Unibestos." He says, "Although I am the medical director of 8 Pittsburgh Plate and Glass, I am the medical consultant for 9 Pittsburgh Corning." 10 And therefore, Mr. Stout, vice-president of Pittsburgh 11 Corning, asked him -- Dr. Grant -- to respond on behalf of 12 Pittsburgh Corning, correct? 13 A That's what the letter says, yes. \ 14 Q All right. Now, sir, tell the jury what it is about 15 this letter from Dr. Grant of August 15th, 1966, about the 16 health experience at the Unibestos facility, that causes you 17 to be so upset. And let me ask you: Why are you upset 18 about it? As a professional or as a human being or both? 19 A Both. And I think it raises all kinds of questions / 20 about corporate and individual responsibility, professional 21 and group responsibility and so on. 22 Q First of all. Doctor, are there any false statements in 23 this letter? 24 A Yes. I think there are some problem areas that are 25 false and need amplification. 3332 1 Q All right. What's the first false statement? 2 A "Repeated dust studies by the Industrial Hygiene 3 Foundation and the State Health Departments have shown dust 4 exposures to be within safe limits for these materials." 5 Q Is that true or false? 6 A The Pennsylvania people certainly found that there were 7 problems. There is no mention of the U.S. Public Health 8 Service data. The original Industrial Hygiene Foundation 9 study was really just a series of three dust measurements by 10 Dr. Corn. And one of them was grossly excessive. And that 11 isn't even mentioned in here. 12 His previous -- his subsequent work, which apparently is 13 under that Industrial Hygiene Foundation, although I'm not 14 sure. What his relationship subsequently was with the 15 Industrial Hygiene Foundation is not referenced. So, I 16 don't think that statement can be supported. 17 Q All right, sir. The statement that the dust levels were 18 safe in the plant is a false statement, correct? 19 A Yes. 20 Q All right. What's the second false statement? 21 .. A "The pre-employment and annual periodic chest x-ray of 22 all employees in the Unibestos manufacture have failed to 23 reveal any evidence of dust-related pulmonary disease." 24 Q Why is that false? 25 A I don't know of any annual periodic chest x-rays that 3333 1 were required of Unibestos workers on a continuing basis. 2 Q All right. But let me ask you something, sir. Is there 3 any mention in that letter of the case of Mr. Land, who 4 worked for five years at that plant and got asbestosis from 5 Unibestos dust? 6 A No, there is not. 7 Q All right, sir. What's the next false statement? 8 A "The industrial hygiene measures utilized to maintain a 9 healthful working environment included local ventilation at 10 the point of dust generation." 11 Q All right. What's false about that? 12 A A lot of that local ventilation has been pointed out, 13 both in the private work and -- as not really working 14 properly. And our subsequent observations have also 15 validated that opinion. 16 Q All right, sir. 17 A I don't think that the data will support that there was 18 local ventilation to the point of safety. 19 Q All right. What about the next thing about the 20 mandatory respirator policy, the next sentence -- 21 A "When an employee is required to being exposed to dust 22 concentrations above a safe level, must wear a Bureau of 23 Mines approved dust respirator during the period of 24 exposure." 25 Q Is that statement true or false? 3334 1 'A I'm not aware that there was any mandatory respiratory 2 policy during 1966 and previously which this letter 3 obviously references. As,a matter of fact, I think that 4 data would support quite the contrary. 5 Q In fact. Doctor, the documents that I have shown you, 6 rather than have a mandatory respirator program in 1966, 7 they didn't do it until the government -- excuse me, they 8 didn't do it until 1971 to keep from having to spend money 9 in the plant to improve the dust system, isn't that the 10 truth? 11 A As part of their application for variance from the 12 OSHA-asbestos standard, yes. 13 Q All right. And that comes fi^om a document from their 14 old files, doesn't it? To that fact, that they didn't have 15 a mandatory respirator policy until 1971, does it not? 16 A That is mentioned in more than one document, yes. 17 Q All right. Now, sir, I ask the jury to -- now, finally. 18 Doctor, let me ask you about this. The last paragraph: 19 "Our product contains amosite-asbestos, which has thus far / 20 not been incriminated as a producer of asbestosis." Now, 21 .. Doctor, in 1966, sir, do you know of anybody in the world 22 who held the view that amosite-asbestos didn't cause 23 asbestosis? 24 A No, I am not aware of data that says that it didn't 25 cause it. 3335 1 As a matter of fact, amosite had a prominent role in the 2 insulation industry and studies of insulation workers were 3 published in the mid-'60s, certainly supported health related 4 problems including asbestosis in individuals whose exposure 5 had included amosite. I am also aware subsequently of 6 studies that were done by Harvard University dealing 7 predominantly with amosite at this particular yard, I 8 believe, in Maine that documented problems with asbestosis 9 and those exposures to amosite. 10 Q Let me show you. Doctor, the jury has already seen or 11 heard this testimony. This is the testimony of Richard 12 Gaze, the chief scientist for Cape Asbestos which supplied 13 them with the amosite fiber. Hevhas testified/ Dr. Gaze 14 did, sir, this is from his deposition read to the jury: 15 Would it be fair to say then. Dr. Gaze, that you discussed 16 this abestosis and the potential hazards of it with 17 Pittsburgh Corning from 1961 down to about 1971? Answer: 18 Yes. And in all that period of time, you, of course, 19 realized the dangers as you have previously explained? / 20 Answer: Yes, as far as asbestosis is concerned. 21 That's what Dr. Grant said had never happened, didn't 22 he? 23 A Yes. 24 Q You made no distinction between the types of asbestosis, 25 did you, in your mind, as to what is dangerous and what is 3336 1 not dangerous, that Dr. Gaze, the chief scientist for the 2 people that were selling them the amosite, said no. 3 In other words, for the three principle types, amosite, 4 crocidolite and chrysotile, in his opinion, all of these can 5 cause asbestosis. 6 So, you are not here to say that amosite asbestosis did 7 not cause asbestosis., His answer is no. Question: And you 8 have never advocated that. His answer is no. As far as 9 advising people of these dangers and this disease that he 10 characterized as a very serious problem, that would apply to 11 amosite asbesto.sis? Answer: Yes. 12 And, in fact, sir, this letter was written on August the 13 15th, 1966, right? The letter we're talking about of Dr. 14 Grant to Mr. Haskins Bath Iron Works was written August 15 15th, 1966. 16 A Yes. 17 Q Now, when was it that Dr. Grant wrote a memo to his file 18 about asbestosis? It was December the 1st, 1965, wasn't it? 19 A Yes. / 20 Q And what kind of asbestos did they use at the UNARCO 21 plant that Pittsburgh Corning bought? Amosite, right? 22 A Amosite, yes. 23 Q So, that isn't exactly true, is it? 24 A You're on the money. 25 Q Pardon? 3337 1 A You're right on the money. 2 Q And you know, of course, why he wrote that customer, to 3 keep on selling, didn't he? 4 MR. GARRARD: Objection, Your Honor, the Doctor 5 doesn't know why he wrote the letter. t 6 THE COURT: Sustained. 7 BY MR. MOTLEY 8 Q Doctor, let's turn back to this same document where you 9 point out that he claims to Mr. Haskins that the dust levels 10 are safe, do you recall that, that he claims that? 11 A Could you tell.me the -- 12 Q This is the first thing you said that he said was false 13 in the August 15th letter. 14 A Yes. 15 Q Now, sir, I ask the ladies and gentlemen of the jury to 16 turn to Exhibit 4400, should be the next one. Do you have 17 that. Doctor, December 21st, 1965? 18 A Yes. 19 Q Look at Page 4, please. Doctor, and ladies and gentlemen 20 of the jury. Paragraph D, this is the letter from DrGrant 21 to the plant manager, is it not? 22 A This is a letter from Dr. Grant to Mr. Griffith, the 23 plant manager at Port Allegany. 24 Q Dated December 21st, 1965? 25 A Yes. Q 5 t l-2 0 -L A Z O R PC N G AO lm O Y M UNClC. \H 47101 1 ") 2 3 4 5 6 7 8 9 10 11 12 ) 13 14 15 16 17 18 19 20 21 22 23 24 J 25 Q Eight months before he wrote this letter to the customer, right? A Yes. Q Now, what did he tell the plant manager about these safe dust levels, sir? A It indicated that in 1964 the Department of Health for the State of Pennsylvania did an industrial hygiene survey. They reported that a hazardous asbestos dust condition existed at several locations throughout the plant. They made a number of recommendations as to how this dust exposure could be controlled. Q So, he told the plant manager they had a hazard and he told the customer it was safe, cprrect? A He told the plant manager that the State of Pennsylvania showed that there had been a problem, yes. Q And he told-the customer it was safe, didn't he? A Yes. Q Now, sir, I ask you next, ladies and gentlemen of the jury, to look at Exhibit 1404, which should be two over. / That's the leading, I'm sorry. Sir, tell the jury -- 1404 was deleted. Tell the jury. Doctor, looking at this letter to a customer in 1966 as a whole, how would you characterize that letter as a professional and industrial health, a Doctor writing a customer about a product as bad as Unibestos and 3339 1 saying it's safe? 2 A The letter really doesn't seem that -- it seems 3 nonsensical and it doesn't seem rational. It seems totally 4 out of character with the memo to Mr. Griffith, the plant 5 manager at Port Allegany there. There's obviously a serious 6 problem. 7 Q With truth? 8 A Truth. 9 Q All right, sir. Let's turn now to what they were 10 telling the Government. Have you learned, sir, that on 11 April the 8th, 1969, the Department of Labor issued a 12 citation for violation of federal law against Pittsburgh 13 Coming's Tyler plant? 14 A Under the Walsh Healy Public Contracts Act. 15 Q All right. I ask the ladies and gentlemen of the jury 16 to turn to Page 1261 -- I mean to Exhibit 1261. It's a 17 letter from Mr. Stout. It's on Pittsburgh Corning 18 stationery to Mr. Blair of the Department of Labor right 19 here in Texas. Do you have that, sir? 20 A I don't believe so. This is to Mr. Blair from Mr. 21 Stout? 22 Q Yes, sir, dated April the 11th. I will give you my 23 copy, sir. 24 A I don't have it in my batch. 25 Q I'm sure it's up there, but I will try to save time and 3340 1 give you mine. 2 A I have it. 3 Q You have got it, all right. 4 A Exhibit 1261? 5 Q Yes, sir. 6 A Okay. 7 Q Now, sir, I would ask you to look, sir, please, this is 8 Mr. Stout replying to the government citation of violation 9 of the law, is it not? 10 A Yes, it is. 11 Q And the law required them to maintain a safe place for 12 men and women to work, didn't it? 13 A Yes, it did. 14 Q And they were found guilty of not doing that, weren't 15 they? 16 A They were cited, yes, uh-huh. 17 Q So, Mr. Stout writes Mr. Blair and on Paragraph 2 on the 18 first page, ladies and gentlemen, he says for those areas in 19 which dust concentration, Stout's position, he was / 20 vice-president, this is the vice-president of the company 21 writing the government. 22 "For those areas in which dust concentrations exceed 23 threshold limits, it is required as a condition of 24 employment that each employee wear a respirator," do you see 25 that sir? 3341 1 A Yes, I do. 2 Q And then on Page 2 he says, under Paragraph 2, he says 3 the company retains the service of Dr. Morton Corn and he 4 approves all installations as well as modifications of our 5 dust collecting system, do you see that? 6 A Yes, I do. 7 Q As it turns out, sir. Dr. Corn had never even been to 8 Tyler, Texas when Mr. Stout wrote the government, had he? 9 A No, that is correct, he had never visited the Tyler 10 facility. 11 Q All right, sir. And, in fact, if you ladies and 12 gentlemen will look at No. 4420, the next document, you will 13 see Dr. Corn, who allegedly was baking care of the men at 14 Tyler, wrote Mr. Blair and said he had never been to Tyler, 15 Texas at the time Mr. Stout said he was looking after the 16 men, correct? 17 A That's correct. 18 Q Now, he later went out there, didn't he? 19 A Yes, he did. 20 Q That's kind of like postdating a check, isn't it? 21 .. Doctor? 22 A I think that's a term I have used before when I first 23 saw this. 24 Q All right. Now, let's tell the jury the next exhibit 25 1262, Dr. Corn, when he goes out there on April the 11th, 3342 1 Stout says everybody is wearing a respirator, right, for 2 this excessive dust, isn't that what he said? 3 A Yes, mandatory. 4 Q Now, when Dr. Corn gets there, when did he go up to 5 Tyler, Texas, May 7th? 6 A May 7th, 1969 is the date of the visit. 7 Q All right. May 7th, 1969? 8 A '69. 9 Q Three and a half weeks after Mr. Stout says everybody is 10 wearing a respirator at Tyler so they will protect 11 themselves. 12 Page 3 and 4, ladies and gentlemen, of that document, if 13 you look at Page 3, ladies and gentlemen, at the bottom, in \ 14 addition to the inadequacies of the ventilation system and 15 the result in excessive dustiness, it was found that general 16 housekeeping is poor in the plant also during the entire 17 day of the survey. Was everybody wearing a respirator, 18 nobody was wearing a respirator, isn't that what he said? 19 Sir? 20 A I'm looking at what page he said that. 21 Q Page 3. 22 A Okay. 23 Q At the bottom, sir. 24 A Also during the entire today of the survey, not one 25 employee in the production area was observed to wear a 3343 1 respirator. 2 Q So, Stout, the vice-president, tells the Government that 3 they've got everything in control in Tyler and then when the 4 man goes out there at three and a half weeks, not a soul had 5 on a respirator except Dr. Corn, correct? 6 A Yes. 7 Q And Dr. Corn, you,know, sir, was ridiculed for wearing 8 one, wasn't he? 9 A Yes, I had the opportunity to review his deposition and 10 saw that and that was disturbing. 11 Q Who ridiculed the Doctor for protecting himself? 12 THE COURT: Has the jury not heard this. Counsel? 13 MR. MOTLEY: Yes, I am sorry. 14 Q Now, Dr. Johnston in a word, that letter from Mr. Stout 15 to the Government in 1969 was nothing but a lie; isn't that 16 right? 17 A It may have been fraudulent. That may be a better word. 18 I don't know. I will leave that to someone else to decide. 19 Q Well, it sure wasn't true, was it? / 20 A No. 21 Q All right. Doctor, trying to hurry through this now. 22 Let me ask you this, sir: In order to get a variance, tell 23 the jury what a variance is. 24 A It's a way to continue your manufacturing operation in 25 violation of an air standard for a given exposure. 3344 1 Q The documents I sent you indicate that in 1970 in 2 March -- in March of 1970/ Exhibit 1265, ladies and 3 gentlemen. 4 March 19th, 1970, the same Pittsburgh Corning 5 Corporation, Exhibit 1265 dated March 19th, 1970 towards the 6 back, wrote Mr. Blair, in order to get a variance to keep 7 operating their factory and making their Unibestos, told Mr. 8 Blair that they were going -- I'm on Page 2 -- initiate a 9 health education program that will fully explain to the 10 employees the health hazards associated with asbestos 11 exposure and how they can protect themselves, did he not say 12 that? 13 A Yes. 14 Q The truth of the matter is. Doctor, they never got 15 around to telling the people at Pittsburgh Coming's plants 16 about all of those hazards associated with asbestos until 17 August of 1971, did they? 18 A That's my understanding, and that's documented in the 19 records. / 20 Q That's in the corporation's own words, isn't it? 21 A Yes, and the presence of a health education program was 22 documented in material that we received from the Texas State 23 Health Department. I did not observe that particular health 24 education session. So, I can't even be a judge of that. 25 But if it was the same program that was offered in Port 3345 1 Allegany, Pennsylvania, I did not agree with the content. 2 Q All right, sir. Doctor, Dr. Herbert Abrams, do you know 3 Dr. Abrams? 4 A Yes, I do. 5 Q Testified here day before yesterday that in 1953 he 6 wrote an article for the American Cancer Society and pointed 7 out how important it is for working people to know that 8 something they're working with can harm them. Do you agree 9 with that principle? 10 A Yes, I do. I think that's the only way that people have 11 a chance really of protecting themselves. 12 Q They have the right to know, don't they? 13 A Yes, they do. \ 14 Q Please, ladies and gentlemen, turn to Exhibit 1264, on 15 Page 3 of Exhibit 1264. Do you have that, sir? It's a 16 letter from Dr. Grant to Mr. Van Horne in Tyler with a 17 receipt stamped the office of the president of Pittsburgh 18 Corning. Do you see that, sir? 19 A Yes, I do. / 20 Q Look at Page 3, please, ladies and gentlemen. Dr. Grant 21 wrote in March 1970, "Other than advising certain employees 22 that they must wear dust respirators, no information has 23 been provided the employee on the health hazards associated 24 with excessive and prolonged exposure to asbestos or the 25 increased hazard to lung cancer associated with the worker 3346 1 who smokes cigarettes in addition to his exposure to 2 asbestos. In my opinion you have an obligation under Walsh 3 Healy." That's a federal law, isn't it? 4 A Yes. 5 Q "To provide the worker with such information." In other 6 words, they had been operating that plant for eight years 7 and never gotten around to complying with the law, correct? 8 A Easily, yes. 9 Q Easily what? 10 A Yes. 11 Q Yes? Further, the legal view is that if you don't do 12 so, you may be held negligent in case of an adverse health 13 effect from such environmental exposures. 14 Now, Doctor, have I shown you documents indicating that 15 two years prior to that, in 1968, Dr. Grant was urging the 16 company to tell .their own employees about the hazards of 17 asbestos? 18 A In 1968? 19 Q Yes, sir. 20 A Reference that document. 21 Q Exhibit 1397, please, ladies and gentlemen. It's dated 22 July 9th, 1968, Doctor. 23 A Yes, the final paragraph in that letter of July 9th, 24 1968 to Mr. Stout from Dr. Grant indicates the evidence 25 concerning the synergistic effects of asbestos dust exposure 3347 1 and cigarette smoking and the production of lung cancer 2 warrant consideration of an educational program for our own 3 employees working in the Unibestos operations and also the 4 use of pre-employment examination as a future selection 5 procedure in not permitting cigarette smokers to work in 6 Unibestos operations. 7 Q So, Dr. Grant, Ju^y 9th, 1968 writes we've got to tell 8 the workers, doesn't he? 9 A Yes. 10 Q And then in March of 1970 he writes the president and 11 says we've got to tell the workers or we are violating the 12 law, didn't he? 13 A Yes. 14 Q And they never got around to doing it until August of 15 1971. Do you know why they did it in August of 1971, 16 Doctor? 17 A I assume that there was pressure for the application of 18 variance. There may have been other factors that I'm not 19 aware of. ! 20 Q Well, they applied for a variance so they could continue 21 operating the factory, didn't they? 22 A Yes. 23 Q And one of the requirements for the variance was to have 24 a health education program, wasn't it? 25 A Yes. 3348 1 52 3 4 5 6 7 8 9 10 11 12 > 13 14 15 0n 16 17 y zuzo' 18 19 20 21 22 23 24 J 25 Q And they, in fact, had a health education program in August of 1971 because you attended one of them, didn't you? A Yes, they had one in Port Allegany that I observed. Q And that's the health education seminar where they told them it took twenty years to cause asbestos when they knew it took five; isn't that right? A Yes, that it took, twenty or more years, yes. Q That's not much of an education, is it? A No, and a little bit of education and a misleading education can be dangerous. Q All right. Doctor. In your opinion, does going from 1962 to 1971, without educating their own employees about the hazards of asbestos, constitute in your professional opinion conscious indifference to the rights of human beings? MR. GARRARD; If Your Honor, please, I object to the question as being out of the purview of this witness and out of his area of expertise and improper under Rule 704. THE COURT: Overruled. BY MR. MOTLEY; Q Is it a conscious indifference to the rights of human beings. Doctor? A I believe it is. I believe there is serious ethical and moral and professional and societal problems that are addressed in this case that have not just bothered me but 6 5 1 I - 2 0 - L A Z O R PENGA /OiNoy 3349 1 have bothered others and I think there is a very serious 2 problem here. 3 Q Doctor, in fact, there's a book written about that Tyler 4 plant, wasn't there? 5 A Yes. 6 Q It's called Expendable Americans -- 7 MR. GARRARD: , If the Court please, Mr. Motley knows 8 better than that. 9 THE COURT: I sustain the objection. I also have 10 noticed the clock. Counsel. 11 MR. MOTLEY: Yes, sir, I have got two minutes. 12 Judge. 13 BY MR. MOTLEY: 14 Q Doctor, assume for me. Doctor, that in 1961 and 1962 as 15 Dr. Gaze, the chief scientist for Cape Asbestoswho sold the 16 amosite asbestos to Pittsburgh Corning has testified, told 17 Pittsburgh Corning from Day One that amosite asbestos would 18 cause asbestosis and that amosite asbestos cause incurable, 19 irreversible, disabling and potentially fatal lung diseases. ! 20 And assume that there are documents that I gave you that 21 .. you hadn't seen when you went to Pittsburgh Corning 22 facilities that show that all, as you said, almost from Day 23 One they had a problem at Tyler and assume that when you got 24 there, it was a filthy mess because that's what you saw. 25 Will you tell the jury. Dr. Johnston, will you tell the 3350 1 ladies and gentlemen of the jury whether, in your opinion, 2 Pittsburgh Corning was responsible in their activities and 3 conduct towards human beings? 4 A I think Pittsburgh Corning ultimately was responsible 5 for the obvious operation of that plant, the manufacture of 6 a product and the exposure of their employees, and now it 7 appears the exposure of other employees, that they withheld 8 vital information not just to me but to government agencies, 9 to workers, their fellow employees and may not even have 10 been honest amongs themselves at the upper levels of 11 management. 12 I think there are very serious issues here that 13 obviously we would all like to know a little bit more about. -v 14 But this is very serious. 15 Q Is it outrageous? 16 MR. GARRARD: Move to strike the response of the 17 witness as not responsive to the question. It is a lengthy 18 expose* on his part. 19 THE COURT: Overruled. 20 BY MR. MOTLEY: 21 Q Was the conduct outrageous. Doctor, in your view? 22 A Yes, and it was outrageous and I don't understand it. 23 Q Now, Doctor, you've testified before in a case arising 24 out of the Tyler plant back in, I believe, 1976 about what 25 you told Pittsburgh Corning, have you not? 3351 1 A Yes. 2 Q And you gave a deposition from my firm once before I 3 believe or twice before, correct? 4 A In South Carolina and also in Georgia in 1988, yes. 5 Q And you expect to be compensated for the time you're 6 away from your family and your job? 7 A Yes. 8 Q In conclusion. Doctor, you've reviewed documents that I 9 have given you, correct? 10 A Yes. 11 Q That you had never seen before? 12 A Yes. 13 Q And when you gave your testimony in August of 1988, you 14 gave certain opinions that you retracted last night in a 15 deposition that Mr. Harvard and myself took, correct? 16 A Yes. 17 Q And why did you retract those opinions? 18 A Because previously I had not had access to these 19 documents which we've reviewed here today. It's new data ! 20 and I think casts a very different light on many aspects of 21 this. 22 Q I wrote you a letter and asked you to look at these 23 documents. And I told you my view of the documents, did I 24 not? 25 A Yes. You indicated that there was -- 3352 1 Q Don't tell us what I indicated, because I can't testify. 2 Did I write you a letter and give you my view of the 3 documents? 4 A Yes, you did. 5 Q Did I tell you to come to an independent evaluation of 6 the documents and not be influenced by my bias? Because I 7 am biased. 8 A Absolutely. 9 Q And have you undertaken an independent evaluation and 10 based your statements here totally on your own views and not 11 on anything I suggested to you? 12 A I based my statements today on the data in the records 13 and my personal observation as a,n officer of the U.S. Public 14 Health Service. 15 MR. MOTLEY: Thank you. Doctor. 16 THE WITNESS: Thank you. 17 MR. MOTLEY: You have to answer questions from 18 Mr. Garrard. 19 THE COURT: You pass the witness? 20 MR. GARRARD: Yes, sir. 21 CROSS-EXAMINATION 22 BY MR. GARRARD: 23 Q Doctor, you have children, do you not? 24 A Yes, I do. 25 Q What are their ages? 3353 1 A Twenty, eighteen, fourteen, and thirteen. 2 Q Is that four of them? 3 A Yes. 4 Q I've got four, also. Mine are a little bit younger than 5 yours. 6 Has it been your experience that when you tell your 7 children to do something, they always either do what you 8 tell them to do or continue to do whatever you've told them 9 to do? 10 A Well, obviously there are problems in any potential 11 parent-offspring relationship. 12 Q They don't always do what you tell them to do, do they? 13 If yours do, yours are mighty miraculous children, 'cause 14 mine sure don't. 15 A Oh; I've got some good kids, too. 16 Q Do they always do what you tell them to do? I've got 17 good kids, too; but mine don't? Do they? 18 THE COURT: The question is: Do your kids always 19 do what you tell them to do? 20 A No. And I don't know why that's relevant here. 21 ..BY MR. GARRARD: 22 Q Well, we'll get to that. In terms of respirators. 23 Doctor, you were at the Tyler plant for one week, five days, 24 right? 25 A Yes, sir. 3354 1 Q And how many days were you at the Port Allegany plant? 2 A Oh, I think two or three days at the most. 3 Q Those are the only times that you have a personal 4 observation of what the employees at either Tyler or Port 5 Allegany were doing; is that not correct, sir? 6 A Yes. And in Tyler there were also discussions with some 7 of the workers about their past experiences and behavior. 8 Q Well, I'm trying to talk about with your eyes, what you 9 saw. Those were the only times that you were at either 10 place? 11 A Direct observations, sir. 12 Q Correct? 13 A Yes. % 14 Q And what the employees had, in fact, been told in 15 various spots at either Tyler or Port Allegany, you don't 16 know all that had occurred or all that had been told to 17 employees at either place from 1962 through the time that 18 you went to either one, do you, sir? 19 A Oh, I think that's glaringly obvious. / 20 Q I'm sorry. I didn't understand your answer. 21 A I think that's a glaringly obvious statement. 22 Q What does that mean? 23 THE COURT: He agrees with you. Counsel. 24 MR. GARRARD: I wanted to make sure that's what it 25 meant. Judge. Thank you. 3355 1 BY MR. GARRARD: 2 Q You don't know what was done after Pittsburgh Corning 3 bought the Unibestos plant from UNARCO in 1962, immediately, 4 do you? 5 A No. But I have the impression that basically the same 6 ventilation and manufacturing equipment was continued. 7 Q Do you know, when they first bought the plant, whether 8 they did anything? Or is it your feeling they did nothing. 9 Doctor, in terms of improving the plant? 10 A I have not seen, obviously, specific data dealing with 11 the startup by Pittsburgh Corning. I haven't seen data 12 dealing with the transition. And if you have information to 13 share with me, I would be glad to offer an opinion about 14 that. 15 Q All right, sir. I would like to do that. And by the 16 way, let me make sure I understand something. Doctor. You 17 don't have the impression necessarily that Mr. Motley showed 18 you all of the documents and all of the data that may 19 pertain to Pittsburgh Corning, either at Port Allegany or 20 Tyler, do you, sir? 21 A I would assume that obviously there is additional 22 correspondence and data sets that Mr. Motley has not seen 23 and I obviously have not seen. 24 Q All right, sir. Well, you don't know what Mr. Motley 25 has necessarily seen then, do you? You can speak only to .3156 1 what you've seen, right? 2 A That's correct. 3 Q All right, sir. Did he show you a bulletin dated 9-4-62 4 to all personnel at Tyler, that says, "It is with pleasure 5 that I can advise you that improvements in working 6 conditions are now in progress and scheduled for immediate 7 completion." And also says that some of the things they're 8 going to do are "add to and improve dust control equipment 9 in the saw room and any necessary safety devices and 10 guards." 11 Did he show- you that, sir? 12 A No. I haven't seen that. 13 Q All right, sir. Did he showvyou a letter ftora Mr. 14 McMillan, the works manager, dated October 1, 1962, to the 15 employees, that says, "Considerable progress has been made 16 toward solving the dust problems in the saw room. Further 17 improvements are being planned by our engineers." 18 Did he show you that, sir? 19 A No. And I wouldn't know what that meant. / 20 Q You didn't see it, then? 21 A No. 22 Q Did you look at the report from the Industrial Hygiene 23 Foundation, dated July 8th, August 6th and 7th, 1963, in 24 regard to dust studies and evaluation of things at the 25 Tyler, Texas, plant? 3357 1 A I saw the data dealing with Port Allegany in 1963, that 2 was done by Dr. Mort Corn, under the auspices or the 3 umbrella of the Industrial Hygiene Foundation. 4 Q What year was that. Doctor? 5 A I believe it was '63 or '64. 6 Q You talked a lot aboutTyler in particular. Did you see 7 this one (indicating)? 8 A This is July 8th. 9 Q Yes, sir. 10 A August 6th -- 11 Q 6th and 7th, 1963? 12 A 1963. 13 Q Uh-huh. 14 A No. And this indicates this apparently was done by the 15 Mellon Institute? 16 Q Industrial Hygiene Foundation, Mellon Institute. You 17 didn't see that? 18 A No. 19 Q All right, sir. Did you see where they said that it / 20 would appear from the analysis of the samples that were 21 collected intentionally only at those processes that 22 appeared to be the principal producers of dust, that the 23 number of asbestos fibers present in the air, with few 24 exceptions, were well below the threshold limit of 5 million 25 particles per cubic foot? 3358 1 A I see that. But I'd like to see the basic data set and 2 tables on that, if I may. 3 Q First, had you seen that before today? 4 A No. But I have some other reasons to want to go into 5 this in more detail. 6 Q Did you see -- 7 A Who is the author on the report, the industrial 8 hygienist? 9 MR. HARVARD: Mr. Garrard, that's in the jury's 10 notebook, 4187. 11 MR. MOTLEY: He has seen it. 12 MR. GARRARD: Let's let him testify, Mr. Motley. 13 MR. HARVARD: It's in the notebook that was passed 14 out. 15 BY MR. GARRARD: 16 Q It's field investigation by Jacob Cholak, Lawrence 17 Schafer, William Tribius (phon.). Samples analyzed by 18 Kettering Laboratory, Cincinnati. Is that a decent 19 laboratory? 20 A Well, it really wasn't done by the Mellon Institute, 21 ..then. It was done under the umbrella of the Mellon 22 _ Institute, by the Kettering Laboratory at the University of 23 Cincinnati, according to that. 24 Q Okay. Well, did you get a chance to look at the dust 25 studies in this and see that a great -- just a minute. sir -- that a great number of these -- most of them, in fact -- are below the TLV? Breathing zone at the scrap crusher while scrap was being crushed was within the TLV, wasn't it? A I think there's a problem -- Q Well, let's answer my questions, first, please, sir. Wasn't that within the TLV? A Yes. But that isn't million particles per cubic feet, sir. Q What does that mean, "MPPCF"? A I would have to see the methodology. I saw that in another IHF study and have reason to suggest that it may be a problem. Q What does MPPCF mean? A It means million particles per cubic feet. Q All right. And under that it says what? A "Fibers." Q Well, no. Under that it says what? A "Asbestos fibers." / Q Yes, sir, it does. And it lists a lot of them, does it not? List a lot of samples that were done? A Yeah. But the threshold limit value was in terms of million particles per cubic feet, sir, not fibers. And there's a problem with that. And I would like to know what the million particles per 3360 1 2 3 4 5 6 7 8 9 10 11 12 > 13 14 15 16 17 18 19 20 21 22 23 24 J 25 cubic feet is. I think there's a problem. And I saw that in another IHF report. I remember that very clearly. Q You think the IHP is giving Pittsburgh Corning bad advice? A I don't think that they are necessarily providing the air sampling data that is called for under the million particles per cubic feet. And I would have to look at the methodology with much care and perusal before I would come to a final conclusion. But I think that you may have a problem with that. And I wouldn't -- I would take a careful look at that. Q Well, you were there when I read this. "It would appear from the analysis of the samples that were collected % potentially only at those processes that appeared to be potential producers of dust, that the number of asbestos fibers present in the air, with few exceptions, were well below the threshold limit of 5 million particles per cubic foot." Did I read that accurately as they reported it to Pittsburgh Coming's Doctor? / A As they reported it. But as I say, I don't know if they can draw that conclusions, based on the methodology which I saw. And I know the literature in that area a little bit. Q Were you aware this was a document Mr. Motley sent you? A I have been through a number of these. And that one was 8 5 1 1 -2 0 -L A Z O R P tN G A O /IN D Y M U N C ie . IN 4 7 3 0 2 3361 1 not highlighted as we went over these yesterday. 2 Q All right. Now -- 3 A But I certainly was aware and had been through some 4 similar air sampling data with IHP. 5 Q Now, you are aware that Pittsburgh Corning did sponsor 6 air sampling data from time to time at both Tyler and Port 7 Allegany, are you not? 8 A I'm sorry. Will you repeat the question. 9 Q Sure. Just relax. Doctor. We've got a lot of things 10 we've got to talk about. 11 You are aware that Pittsburgh Corning did sponsor air 12 sampling data at both Tyler and Port Allegany on a number of 13 occasions, are you not? 14 A Yes, I have become aware of that. I previously was, you 15 know, acutely aware of the air sampling data that was 16 provided by the .Public Health Service in 1967 and 1970. And 17 I now am aware that other studies were done, other air 18 levels were obtained, and that there was an additional data 19 base which the company had to make decisions in their 20 operations. 21 Q I'm a little bit confused. Doctor. Are you saying that 22 you were not aware before Mr. Motley in the last week sent 23 you some materials, that there had been dust studies done at 24 Pittsburgh Corning plants, other than those done by the 25 Public Health Service and NIOSH? 3362 1 A I was aware that Dr. Corn put in some equipment in Port 2 Allegany and that he said, "Well, you can have the Public 3 Health Service people come through and do the measurements." 4 I was not really aware of and I hadn't seen other air 5 sampling data, to the best of my knowledge. 6 Q We'll talk about that a little bit more in a bit. 7 Now, let me talk to you a little bit. I'm going to come 8 back to some of this about the Public Health Service and its 9 involvement with Pittsburgh Corning Corporation. 10 Do you recollect from your review of materials 11 pertaining to the Public Health Service study, when the 12 Public Health Service first started investigating asbestos 13 manufacturing facilities, sir? 14 A It's my understanding that the asbestos textile studies 15 began in the early '60s. 16 Q All right, sir. And the Public Health Service 17 interrelates with NIOSH how? 18 A The Public Health Service is a part of the old 19 Department of Human and Health Services -- well, not the 20 old, but the Department of Health, Education, and Welfare. 21 I was in the Public Health Service at the time that it was 22 in the Department of Health, Education, and Welfare. 23 Occupational health activities, the research side of the 24 house, were traditionally under the umbrella of HEW. And 25 there were a number of different agency names. The Bureau 3363 1 "of Occupational Safety and Health of the U.S. Public Health 2 Service, I believe, was the agency name just prior to the 3 creation of the National Institute for Occupational Safety 4 and Health under the Occupational Safety and Health Act. 5 Q Now, you are aware, are you not, that at the time the 6 Public Health Service came into the Pittsburgh Corning 7 plants in 1967, they had been invited in by Pittsburgh 8 Corning? 9 A That's my understanding. 10 Q All right, sir. And that's because at that time, 11 they did not have a legal right of entry into the premises 12 or the property or the plant of Pittsburgh Corning without 13 an invite, did they? 14 A They had to be invited in, yes. 15 Q Yes, sir. And they did a study or a dust study in 1967 16 and finally, I think, in March of '68 sent Pittsburgh 17 Corning dust results, did they not? 18 A That's my understanding. 19 Q Then they went back, still with the approval of 20 Pittsburgh Corning, in 1970, didn't they? 21 A Yes. 22 Q Now, one thing that I have understood from you -- and I 23 don't imagine you've changed on this -- is that when you got 24 to NIOSH in -- was it June or July of 1971? 25 A July. 3364 1 Q July of '71 -- you started looking at data on the 2 asbestos program that they were undertaking; isn't that 3 correct? 4 A Yes. 5 Q Had been undertaking, right? 6 A Yes. 7 Q And you were very,disturbed that the Government 8 employees there had basically done nothing with the data 9 that had been generated, weren't you? That still disturbs 10 you today, doesn't it? 11 A Yes, it does. And also, Pittsburgh Corning didn't seem 12 to do anything with that information either and -- 13 Q Well, I was asking you about the government*for a moment 14 there, sir. 15 You have told me on depositions -- and you don't change 16 in relation to that -- that the people that had done it at 17 the government, at the Public Health Service in 1967, and 18 written a report in '68, that they had not seemed to be 19 overly impressed or concerned or bothered -- I don't / 20 remember what words you used -- with the data they generated 21 in 1967; is that not true, sir? 22 A Well, some of the younger engineers that had been 23 through those facilities certainly were very anxious to 24 bring that data to my attention when I came to NIOSH in 25 1971, and share that information with me and share their 3365 1 concerns. 2 And we certainly acted on that feedback. I will mention 3 this, also, just for the record -- and we must keep this in 4 context -- that U.S. Public Health Service officers went 5 through these plants without benefit of respirators, also. 6 That was the policy, which I didn't understand; but I think 7 it's also important to point out that these companies let 8 these individuals go through these plants, also, without the 9 benefit of respirators. 10 And I think the problem was that there was a concern 11 that if the government people were wearing respirators, the 12 workers, in fact, then would raise questions about why they 13 weren't provided respirators. 14 Q I didn't ask you about that, I don't think. 15 A I think it's very complex issue. And there is obviously 16 an area of concern there, too, that real relates to this. 17 Q Let me go back to question which I asked you, sir. 18 MR. MOTLEY; Your Honor, I just wonder if we're 19 going to try the government as well as the tobacco industry. 20 THE COURT; Overrule the objection at this point. 21 BY MR. GARRARD; 22 Q Doctor, my question was that when you first went to 23 NIOSH in July of 1971, the 1967 study didn't appear to have 24 caused a tremendous amount of alarm to the individual in the 25 government writing it at that time, though it would have 3366 1 caused you concern; isn't that correct -- is what you've 2 said? 3 A Yes. Do you want to provide that particular thing to me 4 so I can respond to it. 5 Q I will be happy to read it to you. Page 79, the 6 question was asked: "What you are saying, then, is this 7 report" -- and that was talking about the one that actually 8 came out in 1968 -- "in light of the knowledge available to 9 the occupational health community in 1968, would have caused 10 alarm to a Government agent qualified in the field?" 11 And your answer was: "It doesn't appear to have caused 12 a tremendous amount of alarm to the individual in the 13 government writing it at this tiipe. But it would have 14 caused considerable concern to me and I think, some other 15 people." 16 That's what you said at the time, wasn't it? 17 A But what cover letter was that, with what air sampling 18 data? 19 Q That was in 1968 report by Cralley, Doctor. 20 A By whom? 21 .. Q Cralley. 22 Q Not Cralley. Excuse me. That was the 1968 report. 23 A Who signed it? 24 Q By Lynch. 25 A By Lynch. 3367 1 Q By Lynch. 2 A What did Lynch also indicate on that cover? 3 Q Isn't that what you said. Doctor? 4 A Well, I've had a subsequent opportunity to reivew that. 5 It's apparent, also, that he made a recommendation at that 6 time, also, on that cover. 7 Q What was the recommendation? I didn't ask you about 8 recommendations, by the way. I asked you another question. 9 But what was the recommendation? 10 A To use respirators. 11 Q All right, sir. 12 A He was obviously concerned enough to make that 13 recommendation. % 14 Q All right. Okay. And Pittsburgh, from the documents 15 you've seen, had people using respirators from time to time, 16 did they not? 17 A From time to time. 18 Q Have you seen documents that said people were using 19 respirators? 20 A I guess, from time to time. I obviously didn't have 21 those observations because I wasn't there. 22 Q Yes, sir. Well, I don't know .whether Mr. Motley showed 23 you the document on November 29, 1965, to McMillan from Mr. 24 Grant. Did you see that one? 25 A From McMillan to Grant? 3368 1 Q Yes, sir. 2 A I don't know. Do we have that? 3 Q I don't know what he showed you, sir. So, I don't know. 4 A I would like to see it in order to comment, though, I 5 think. 6 Q Sure. Let me ask you a question. Then I will be glad 7 for you to look at it,. It says here under "comments and/or 8 recommendations. Asbestos dust exposure": "Shortly after 9 Pittsburgh Corning took over the plant operations from 10 UNARCO, the Industrial Hygiene Foundation did an industrial 11 hygiene survey which found the dust control procedures 12 adequate. Only the dust collective cleaning operation, 13 which is done once a day, produced significant dust exposure 14 to asbestos. The employee exposed was adequately protected 15 with a dust respirator." 16 Doesn't it say that there, sir? 17 A Well, I think there's a problem there, also, that needs 18 to be addressed. I think, also, that this was predicated, 19 sir -- / 20 Q Tell me whether it says that. Then answer any way you 21 want to. 22 A It says what you read, sir. 23 Q Thank you, sir. Now, please explain whatever you want 24 to. 25 A Okay. I would have to, in order to interpret this 3369 1 properly, review the IHF data. And we started to do that. 2 I indicated there were problems with that. Obviously these 3 industrial hygiene recommendations are predicated on that 4 IHF data which I indicated, in fact, may be faulty. 5 So, anything I may say about this is predicated on my 6 view and interpretation of the IHF survey data which you've 7 shared with me, which I pointed out had problems. 8 Q So, this, you wouldn't want to comment on because you 9 hadn't had the chance to thoroughly review it. The IHF 10 data, you don't want to comment on because you hadn't had 11 the opportunity to thoroughly review it. Is that -- 12 A I had seen some of that, sir. And the scope of this is 13 getting a little bit more extensive than I expected. But 14 obviously I think this would require some further study. I 15 have questions about the validity, the basic validity and 16 methodology of the IHF data, particularly as it's being 17 utilized here, for solid recommendations and conclusions. 18 Q Okay. This document I just showed you, according to the 19 list Mr. Motley has given us, was one that you had had. Did / 20 you know that, sir? 21 A It's not here. I have probably been through it. I was 22 certainly happy to review any data or document that's 23 provided to me here. 24 THE COURT: Counsel, I need to stop a few minutes 25 before 12:00. Let me excuse the jury until 1:30. 3370 1 Mr. Motley, I need to see you at the bench. 2 THE COURT: We will be in recess until 1:30. 3 (RECESS AT 11:55 A.M. UNTIL 1:30 P.M.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 2 3 4 5 CERTIFICATION 6 7 We hereby certify that the foregoing is a correct 8 transcript from the record of proceedings in the 9 above-entitled matter, to the best of our ability. 10 11 12 A - <C. Frank McMillan 13 Official Court Reporter V etCDate 14 15 16 Susan Simmons Official Court Reporter 17 18 19 20 21 22 23 24 25 TRIAL TESTIMONY OF DR. WILLIAM JOHNSON RE: Cimino, et al. vs. Raymark, et al. 3-2-90 Paqe 3304 3306 3307 3308 3309 3310 3312 3313 3314 3315 3316 3317 3318 3319 3320 3322 3323 3324 3325 3326 3327 3328 3329 Line 11 through 9; 17-21 .1 through 15; 1 through 15; 20 through 3 13-24 4-25 1-10; 18-25 1-4; 11-25 1-11; 14-19; 22-25 1-24 1-10; 19-24 11-12; 18 through 6; 13-21; 24-25 1-15 _ 1 through 18 3-25 1-7; 15-21 18-25 1-12 Page 3330 3331 3335 3336 3337 3338 3339 3340 3341 3342 3343 3344 3345 3346 3348 3349 3350 3351 3352 3426 3427 3428 3429 3430 3433 Line 13-25 14 through 9 17-24 15-17; 22-23 1-17; 22-25 1-19 6-16 7-25 1-3; 12-19; 24-25 1-10; 14-25 4-19 2-19 1-10; 14-17; 21 through 15; 23-25 1-2; 14-25 1-15; 25 1-4; 13-18 2-14 CR0SS--BY HENRY GARRARD REDIRECT BY RON MOTLEY; 17-21 2-23 -1 _ 1-23 13-17 3-25 Page 3434 3433 3436 3437 END Line 1-2 4-23 4-17 1-10; 13 RECROSS BY HENRY GARRARD & r. ^ \ 1 \ 3371 P 3 586 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS 2 BEAUMONT DIVISION 3 CLAUDE CIMINO, et a 4 Plaintiffs, 5 v. 6 * * * * * RAYMARK INDUSTRIES, INC.', * 7 et al.. * * 8 Defendants. * ********** * * * * * CIVIL ACTION NO. B-86-456-CA Beaumont, Texas March 2, 1990 1:23 O'clock P.M. 9 AFTERNOON SESSION 10 TRANSCRIPT OF TRIAL BEFORE THE HONORABLE ROBERT M. PARKER 11 UNITED STATES DISTRICT JUDGE, JURY VOLUME XXX 12 APPEARANCES: 13 For the Plaintiffs: 14 15 16 17 MR. WALTER UMPHREY ' MR. GREG THOMPSON MR. DIANE DWIGHT MR. PAUL F. FERGUSON, JR. Umphrey, Swearingen Eddins & Carver P.O. Box 4905 Beaumont, Texas 77704 18 For Defendant Fibreboard: MR. ROBERT S. DAGGETT __ MR. GARY S. FERGUS 19 Brobeck, Phleger & Harrison San Francisco, California 20 / 21 Court Reporters C. FRANK MCMILLAN SUSAN SIMMONS 22 P. O. Box 2664 Beaumont, Texas 77704 23 (409) 839-2518 (409) 860-4542 24 Proceedings recorded by stenograph shorthand; transcript 25 produced by CAT system. 3372 1 APPEARANCES CONTINUED 2 ATTORNEYS FOR THE PLAINTIFFS: 3 MR. RON MOTLEY MR. JOE RICE 4 MR. TIM EBLE MR. JACKIE RION 5 Ness, Motley, Loadholt, Richardson & Poole 6 P.O. Box 1137 Charleston, S.C. 29402 7 MR. WAYNE REAUD 8 MR. JOE BLANKS Reaud, Morgan & Quinn 9 909 Laurel ' Beaumont, Texas 77701 10 11 ATTORNEY FOR DEFENDANT FIBREBOARD CORPORATION: 12 MR. LYN STEVENS Weller, Wheelus & Green 13 P.O. Box 350 Beaumont, Texas 77704-350 14 15 ATTORNEYS FOR DEFENDANT PITTSBURGH CORNING CORPORATION: MR. HENRY G. GARRARD, III -- 16 MR. WILLIAM D. HARVARD Blasingame, Burch, Garrard 17 & Bryant, P.C. 440 College Avenue North 18 Athens, Georgia 30603 19 MR. PHIL BROWN 20 MR. ROBERT FANNING Fanning, Harper St Martinson 21 Third Floor Preston Commons West .8117 Preston Road 22 Dallas, Texas 75225 23 24 25 3373 1 APPEARANCES CONTINUED 2 ATTORNEY FOR DEFENDANT CELOTEX CORPORATION; 3 MR. ROBERT ARREDONDO Butler & Binion 4 1000 Louisiana, Suite 1500 Houston, Texas 77002 5 6 ATTORNEY FOR DEFENDANT CAREY-CANADA, INCORPORATED: MS. ELIZABETH THOMPSON ' 7 Butler & Binion 1000 Louisiana, Suite 1500 8 Houston, Texas 77002 9 ATTORNEY FOR DEFENDANT ASBESTOS CORPORATION LIMITED (ACL); 10 MR. MICHAEL BAKER Strong, Pipkin, Nelson & 11 Bissell 595 Orleans 12 Beaumont, Texas 77701-3255 13 14 15 16 17 18 19 20 21 22 23 24 25 1 INDEX 2 WITNESS: DR. WILLIAM JOHNSTON 3 Further Cross-Examination by Mr. Garrard 4 Redirect Examination by Mr. Motley Recross-Examination by Mr. Garrard 5 WITNESS: ABNER BAGENSTOSE 6 Plaintiffs' Deposition Summary 7 WITNESS: RODNEY HARGRAVE 8 Direct Examination by Mr. Rice 9 Cross-Examination by Mr. Daggett Cross-Examination by Mr. Harvard 10 Redirect Examination by Mr. Rice 11 WITNESS: GANELL BRUNET 12 Direct Examination by Mr. Thompson 13 MOTION FOR INSTRUCTED VERDICT 14 By Mr. Daggett By Mr. Harvard 15 16 17 18 19 20 21 22 23 24 25 3374 PAGE 3380 . 3426 3437 PAGE 3442 PAGE 3443 3447 3451 3455 PAGE 3456 PAGE 3497 3503 3380 1 rulings of the magistrate affirmed at that time and 2 Pittsburgh Corning Corporation was given a continuing 3 objection to the use of those documents. 4 (JURY IN AT 1:30 P.M.) 5 MR. GARRARD: May I proceed? Thank you. Your 6 Honor. 7 CONTINUED CROSS-EXAMINATION 8 BY MR. GARRARD: 9 Q Doctor, you and I were discussing a November 29, 1965 10 document that you had talked with Mr. Motley about a little 11 bit, too, from Lee Grant to Mr. McMillan. And I need to 12 discuss one other aspect of that with you. 13 You remember when we talked about that before lunch, \ 14 this document? 15 A Yes,-uh-huh. 16 Q Okay. They said in the document under Paragraph 3, the 17 employee exposed was adequately protected with a dust 18 respirator and I think we've read that. It said no change 19 has taken place in the operation since the survey. / 20 Employees are given annual chest x-rays and no significant 21 findings related to asbestos exposure have been encountered. 22 Most of the present employees have worked at the plant since 23 1954. Then in parentheses it says eleven years. 2'4 So, at least insofar as that particular document, it 25 indicates that some people had been there as much as eleven 3381 1 years, in fact, it says most of them, and also indicates 2 that there is some type of medical examination program, does 3 it not? 4 A Well, there was obviously, you know, some medical care 5 in the community that Pittsburgh Corning had available in 6 Tyler, I am aware of that, that they had back x-rays and 7 chest x-rays and the like. But I really have no data to 8 support that there was anything as comprehensive as alluded 9 to there. 10 Q Well, Doctor, I've even shown you today documents that 11 you either didn't recall or hadn't seen, haven't I? 12 A That's true. Can you show me any documentation? 13 Q Well, let's look at another one then. Doctor. Let's 14 look March 13, 1970, from Mr. Grant to Charles Van Horne. 15 A This is to Wendell Blair. 16 Q No, sir. I told you that was to Mr. McMillan. 17 A To Mr. McMillan. 18 Q Yes, sir. Here is other one here, March 13, 1970, 19 during-my present visit, I learned that forty-four plant 20 employees with five or more year6 service were x-rayed by 21 the medical and surgical clinic in Tyler. No recommendation 22 for further studies were made. Based on the x-ray findings, 23 time did not permit the undersigned to discuss these x-rays 24 with the doctor who read them. However, a review of the 25 findings reported it did indicate a need for medical 3382 1 -follow-up on several employees. 2 Now, we don't know what that medical follow-up need was, 3 but that certainly indicates that there was some examination 4 being done, doesn't it, sir? 5 A I'm familia-r that there was something done in Tyler at, 6 the medical surgical clinic and I believe that I saw a stack 7 of those x-rays at some time in the facility. I have no 8 data on which to believe that annual chest x-rays were, in 9 fact, obtained on that many employees and that there had 10 been a review of those by a Board-certified radiologist as 11 Dr. Grant had made recommendations about earlier. 12 Q Doctor, I have heard you say you have no data, you have 13 no reason to believe that Mr. Motley has given you all of 14 the data either, do you? Sir, answer that question, please. 15 A I am, not even sure that annual x-rays are that rational 16 a form of medical surveillance, given the exposures in that 17 population. 18 Q Okay. So, giving annual x-rays would not have been 19 important to do? / 20 A Well, periodic x-rays, but Dr. Grant certainly never 21 indicated to me that there was ever anything of that nature 22 that had ever been done down there, I can assure you of 23 that. 24 Q I'm a little confused. Would you rather see annual 25 x-rays or periodic x-rays? 12.03. 1 _A "Well, I would like to see environmental controls. I 2 don't like to see this medical question in the face of 3 what's obviously a filthy environment. I don't understand 4 it and it's not totally rational to me and Dr. Grant never 5 indicated to ma that there was this tremendous accumulation 6 of data. 7 We certainly had ample opportunity to discuss the 8 availability of data with the East Texas Chest Hospital. 9 Dr. Hurst was not aware of anything of this order of 10 magnitude and this had been discussed fully. And I 11 subsequently have been to Tyler at least a couple of other 12 times and this is the first I've heard of this and I'm not 13 sure it's rational, I'm not sure it's true and ^ have reason 14 to question it. v 15 Q All right. That wasn't my question anyway, sir. I 16 don't understand, you were with Mr. Motley taking issue with 17 whether annual x-rays were made or periodic x-rays earlier. 18 Now I'm hearing you say that annual x-rays don't matter and 19 you would rather have periodic x-rays. 20 My question to you is: WhicK one do you want, periodic 21 or annual? 22 A I would like the environment cleaned up. 23 Q Could you answer my question about that, please, sir? 24 I'm confused as to whether you want periodic or annual chest 25 x-rays? 3384 1 A Annual are a form of periodic chest x-rays. I think it 2 has to be based on one's suspicion that one might find 3 asbestosis given the years of exposure, the latency 4 questions, the degree of exposure. I think it's a very 5 complicated question and you may be looking for too simple 6 an answer. 7 Q It is a complicated question, isn't it? 8 A Oh, absolutely. 9 Q Complicated issue, isn't it? 10 A Absolutely. 11 Q Yes, sir. And it's important in determining the 12 questions and the issues to look at the whole story, isn't 13 it, sir? 14 A It certainly is. \ 15 Q Yes,-sir. Now, let's see a little bit more about the 16 story. Doctor. One thing that I want to make sure is clear, 17 this memorandum for the record that you and Mr. Motley 18 discussed from Lee Grant or by Lee Grant dated December 1, 19 1965. 20 A May I see that? / 21 Q Have you got that there, sir? Just take the one I have. 22 A I can probably find it. 23 Q Now, the person that Mr. Motley talked about there was 2`4 in 1961 and you were aware that was preceding or before the 25 time that Pittsburgh Corning had anything to do with Tyler, 3385 1 Texas, you realize that? 2 A Yes, sir. 3 Q All right, sir. Do you know anything at all about that 4 particular case other than the one sentence that's there, or 5 two sentences, I guess? 6 A No, I do not. 7 Q All right, sir. You are aware and understand that that 8 person never did work for Pittsburgh Corning? 9 A I'm under the impression he worked in the facility that 10 was subsequently purchased by Pittsburgh Corning which 11 involved the manufacture of amosite insulation and that the 12 same raw product was used and the same machinery was used 13 and basically the same type of ventilation system was there, 14 that's about it. v 15 Q You are aware that person never worked for Pittsburgh 16 Corning, are you not? That's my question. 17 A It's my understanding that he didn't work for Pittsburgh 18 Corning, but that he worked in the facility for five years, 19 which"-1 think in terms of extrapolating to the degree of 20 risk to workers in the Pittsburgh Corning plant is 21 appropriate. 22 Q You don't know the circumstances of this man, whether he 23 had exposure preceding the time he worked at UNARCO, you 2-4 haven't seen the file of diagnosis or anything else, have 25 you, sir? 3386 1 A Ho. Have you? Do you have reason to believe otherwise? 2 Q You haven't seen anything on it, have you, sir? 3 A No, sir. 4 Q And you're aware, are you not. Doctor, I'm sure Mr. 5 Motley told you. this, that this is not a document that came 6 from Pittsburgh^Corning or was ever in the Pittsburgh 7 Corning files. You're aware of that, aren't you? 8 A Could you explain that to me, what you are pointing to 9 there? 10 Q Yes. Dr. Grant said that this was something he put in 11 his own file and it was never given to Pittsburgh Corning. 12 Did Mr. Motley tell you that? 13 A It's my understanding that -- \ 14 Q Sir, could you answer that question. Did Mr. Motley 15 tell you that? 16 MR. MOTLEY: Your Honor, he's trying to answer the 17 question. 18 THE WITNESS: Can I answer the question? 19 BY MRV-'GARRARD: 20 Q I would like for you to answer the question. 21 A It's my understanding that in addition to PPG 22 Industries, that Dr. Grant worked for Pittsburgh Corning. 23 As their consultant that he shared this information with 24 Pittsburgh Corning, you can't say that this was not in the 25 file of somebody that worked for Pittsburgh Corning. I 3387 1 don't understand. 2 Q Doctor, do you have one bit of evidence that says that 3 this document was ever in Pittsburgh Coming's files? 4 A No, I don't, but I'm sure Dr. Grant in his files, 5 certainly -- these were Pittsburgh Corning files. 6 Q Excuse me? 7 A He had Pittsburgh Corning files. He had plant files 8 dealing with Pittsburgh Corning. I don't understand what 9 you are getting at. 10 Q Have you seen anything which tells- you that he passed 11 that specific piece of information on to Pittsburgh Corning? 12 A Well, if he didn't, he was probably derelict in his 13 responsibilities. 14 Q Doctor, do you remember being asked the question last 15 night by,Mr. Harvard over here at Page 28 of your 16 deposition, "Have you seen anything which tells you that he 17 passed that specific piece of information on to Pittsburgh 18 Corning," and do you remember giving the answer "Not as I 19 have Just seen this here," was that your testimony last 20 night? 21 A That is correct. I've seen nothing. 22 Q Was that true at that time, sir? 23 A Yes, still is. 24 Q Let's look at what he did pass on to Pittsburgh Corning, 25 Doctor, because it pertains to initial medical staff visit 3388 1 November 8th, 1965 and that is the document that you and I 2 have been talking about dated November 29, 1965. That's 3 what he passed on to Pittsburgh Corning, isn't it, sir? 4 Doesn't it say up here? What is it? What does it say? 5 A Initial medical staff visit. 6 Q What date? . 7 A November '65. 8 Q Yes, sir. And that contains the paragraph you and I 9 have been reading from, doesn't it? 10 A This has to do with the Tyler plant arid is a 11 communication from Dr. Grant. 12 Q Same visit, isn't it. Doctor? 13 A Well, according to this, he didn't pass this,information V 14 on to the plant manager. 15 Q You have no information that says he passed that 16 document on to Pittsburgh Corning, correct? Correct? 17 A He was Pittsburgh Corning. I don't get -- 18 Q No, sir, he wasn't Pittsburgh Corning. Do you have any 19 information that he passed that on to Pittsburgh Corning? 20 A He was PittsburghCorning. I don't understand. 21 Q Doctor, you are aware he was not an employee of 22 Pittsburgh Corning, are you not? 23 A He was a Pittsburgh Corning consultant. He worked for 24 PPG and the Pittsburgh Corning people. I don't understand 25 the fine point here. He certainly presented himself to me 3389 1 as the man that did the medical for Pittsburgh Corning. The 2 executives at Pittsburgh Corning, one of them specifically 3 apologized to me in Port Allegany that they used Dr. Grant, 4 but that they had to in his employment with PPG Industries, 5 that he was regarded as one of the team. 6 Q Doctor -- 7 MR. GARRARD: Your Honor, I would move to strike 8 that as not responsive to anything that I asked him. 9 THE COURT: Sustained. 10 BY MR. GARRARD: 11 Q Doctor, please listen to my question. You are aware, 12 are you not, that Dr. Grant was not an employee of 13 Pittsburgh Corning? v 14 A I believe he got his paycheck from PPG Industries, but I 15 have always been under the impression that he basically did 16 the medical for Pittsburgh Corning. And it all depends on 17 how you want to look at it, you know. 18 Q Sure does, doesn't it, sir? 19 A Absolutely. 20 Q Doctor, let's look at something else. In one of your 21 criticisms of Pittsburgh Corning, you talked about dust 22 studies. And if I recollect your testimony earlier, you 23 indicated that there had never been any dust studies that 24 showed anything except excessive dust at Pittsburgh Corning 25 facilities and that you thought the letter to Mr. Haskins 3390 1 was wrong or false or whatever terminology you used because 2 of that. You remember that? 3 MR. MOTLEY: I object to the form. That's a 4 mischaracterization of what he said. He said they weren't 5 always safe. 6 THE COURT: The jury heard it. They will be 7 governed by their recollection of it. 8 BY MR. GARRARD: 9 Q You remember talking to Mr. Motley about that, sir? 10 A Could you repeat the question? 11 Q Yes, sir. When you were testifying for Mr. Motley on 12 direct, you said that one of the things that you thought was 13 incorrect, I don't remember exactly whether you said \ 14 incorrect or a lie or what you said, in the letter to 15 Haskins from Grant in August of 1966 was that there were no 16 dust studies shown that were decent dust studies or within 17 the standard as to Pittsburgh Corning as of August 15, 1966. 18 Do you remember that? That's one of the things you took 19 issue with. / 20 A I would like to see the data. 21 Q You want to see the letter? 22 A I would like to see the data of what you are referring 23 to. 24 Q But you remember making that criticism of Pittsburgh 25 Corning, do you not, this morning? 3391 1 -A I'm having a hard time putting this all together. This 2 is getting to be a long day and I would like to be provided 3 the data so that I can appropriately respond. 4 THE COURT: Doctor, his question, as I appreciated 5 it was limited -to what you're testimony was this morning in 6 response to Mr..Motley's question concerning the matter, not 7 the basis for any opinion, but simply what your response was 8 this morning. 9 MR. MOTLEY: Your Honor, we may have the -- do we 10 have this morning's transcript yet? 11 THE WITNESS: We don't have the transcript, yeah. 12 But I'm confused at this point. 13 BY MR. GARRARD: v 14 Q I'm not trying to confuse you,, sir. Let me try one more 15 time. Dp you recall this morning testifying with Mr. Motley 16 about the letter from Lee Grant to Arthur Haskins at Bath 17 Iron Works? 18 A Yes, I do. 19 Q All right, sir. Do you remember that one of your 20 criticisms of that letter was his statement in there that 21 there had been dust studies done at Pittsburgh Corning 22 facilities that showed the results as being okay. You 23 remember that? 2-4 A Yes, I do. 25 MR. MOTLEY: Your Honor, I object to that, that's 3392 1 _not a fair characterization of what he said. 2 THE COURT: Well, Counsel, the jury heard it and 3 they will remember what he said. 4 BY MR. GARRARD: 5 Q Are you with me now. Doctor? 6 A I am looking at this and I'm waiting for the question. 7 Q You remember the testimony about the letter? 8 A I've got it marked here; and my concern about this 9 particular part of the letter, yes. 10 Q What was your concern about that part of the letter? 11 A It says, "Repeated dust studies by both the Industrial 12 Hygiene Foundation and the State Health Departments have 13 shown dust exposures to be within safe limits fo? these \ 14 materials." 15 Q All right, sir. And you think that's wrong? 16 A Yes, I do. 17 Q The date of that letter is what? 18 A August 1966. 19 Q OkaTy. And, Doctor, did you look at this document, 20 January 27, 1966 from Jan Lieben -- let me identify it, 21 please, then I will be glad to give it to you. 22 A Yes. 23 Q Jan Lieben, who was a doctor and director of the 24 Division of Industrial Hygiene for the state of Pennsylvania 25 Department of Health, to Pittsburgh Corning talking about 3393 1 dust studies done at Port Allegany. Had you looked at that 2 when you made that comment previously? 3 A This was a resurvey, which showed dust levels below what 4 they have been previously documented at by the Pennsylvania 5 authorities. Certainly the study -- I have not seen the 6 original study,^but it's, referenced by Dr. Grant in one of 7 his data sets as indicating that there was, in fact, a 8 hazardous condition that had been documented previously by 9 the state of Pennsylvania in that facility. 10 Q In 1964, wasn't it, sir? 11 A I would have to look at it, but that sounds about the 12 right framework. 13 Q Yes, sir. We've got one right here, January 27, 1966, \ 14 by the State of Pennsylvania. And. could you just tell the 15 Court and jury what, if I may refer you to something here, 16 please, sir. 17 A All right. 18 Q What do they say here about dust exposures in the second 19 paragraph? 20 A It says dust exposure have been reduced to less than the 21 threshold of 5 million particles per cubic feet. 22 Q Yes, sir. And had you looked at that one with Mr. 23 Motley? 24 A I had not seen this but there is certainly some 25 exposures in here that warrant concern. There is one that 3394 1 ..is 5 million particles per cubic feet at one operator's 2 location. There's another one at 5.3 million particles per 3 cubic feet at an operator's exposure at a sawing operation, 4 and I think it's all a matter of how you want cut up the 5 data and look at it. 6 Q How many others in there within TLV, Doctor? Tell the 7 jury that, please, sir. 8 A There is certainly a number in there, but you can't 9 discount the individuals that are being exposed to these 10 higher levels. And that certainly bothers me in an overall 11 interpretation of that data. 12 Q Do you know Dr. Lieben? 13 A I know of him. I have not met him personally. 14 Q Yes, sir. His conclusion apparently was, dust exposures 15 have been reduced to less than the threshold limit value of 16 5 million particles per cubic foot and he communicated that 17 to Pittsburgh Corning, did he not, sir? 18 A He did. And I really don't even know if he had been 19 there as a part of the survey team. He was not an 20 industrial hygienist. 21 Q Yes, sir, I see. And did Mr. Motley show you the survey 22 done by Morton Corn April 14 through 15, 1966 at Port 23 Allegany? 24 A I would have to look at that quickly. 25 Q Please do. First answer me, did you see that before. 3395 1 sir? 2 A Yes, I did and I think this has also some problems. It 3 also just involves a limited number of samples. It just 4 involves three samples. Obviously if you average this out, 5 you don't have a problem. But if you take look at the No. 2 6 sample, the breathing zone of the feeder, it is 11.5 million 7 particles per cubic feet, greater than two times the 8 threshold limit value. And that certainly was not a 9 protective level for the individual that had that sampler on 10 and I wonder if that was even conveyed to that individual. 11 Q What did they say about the breathing zone of Sawyer, 12 what was its result? 13 A 1.4. \ 14 Q Yes, sir. And what did they say, if I may refer you to 15 something, please, here. Table 4, that's what you were just 16 referring to, isn't it? 17 A Yes. 18 Q Do they say Table 4 is a summary of the results of three 19 air samples obtained in the plant, the concentration of the / 20 dust and the breathing zone of the feeder is excessive. The 21 feeder wore a respirator and this practice, if voluntary, 22 should be compulsory. Did they also say that, sir? 23 A Dr. Corn said that, that feeder, in fact, adapt a 24 mandatory respiratory policy. I don't know. That certainly 25 does not give me any sense of security that that plant was 3396 1 safe, and I think three samples is not a statistical -- is of 2 no statistical value. 3 I see one excessive. That excessive in three indicates 4 to me that there is a problem in that plant and I think 5 that, again, this is matter of interpretation, and I would 6 certainly stilly feel as .strongly as I do about this letter 7 with that data if you are using that to support that. 8 Q Well, Doctor, how strongly did you feel about that data, 9 in fact, the last two things I've showed you, when 10 Pittsburgh Corning sent it to you back in 1971? Do you see 11 on this letter. Doctor, that's to you, September 13, 1971 12 from Lee Grant. It says, "Dear Dr. Johnston, the following 13 reports and correspondence from my personal Port Allegany \ 14 plant files in which you had indicated an interest are 15 enclosed for your information." One is a letter dated 16 1-27-66 from the Commonwealth of Pennsylvania to Pittsburgh 17 Corning Corporation which is what we just looked at. And 18 another is a report on industrial survey of selected process 19 operations performed April 14 through 15, 1966 at Port 20 Allegany which we just looked atl 21 A I find that very interesting and deserving of additional 22 review. This information obviously didn't affect my 23 attitude or analysis of the situation at Port Allegany and 24 in Tyler. 25 Q Well, Doctor, what about this one, October 25, 1967, 3397 1 from'Dr. Lieben again of the State of Pennsylvania to 2 Pittsburgh Corning where it says, air samples for dust 3 containing asbestos were collected in midget impingers. 4 What's a midget impinger, sir? 5 A It's a way pf collecting dust. 6 Q All right, sir. Were collected in midget impingers, I 7 can't hardly say that, containing distilled water. A 8 standardized light filled microscope technique was used to 9 count dust. Results indicate that exposures in all areas 10 except No. 2 building machine, parentheses, two-and-a-half 11 by one inch pipe insulation, are less than the threshold 12 limit value of 5 million particles per cubic foot of air 13 based on an eight hour daily exposure. Had you reviewed V 14 that document before today, sir? 15 A I don't know. Let me take a look at that. 16 Q Sure, please do. 17 A Where is the air sampling data in this report? 18 Q I don't have the air sampling data. Doctor. I've got 19 what h^ said right there. Had you reviewed that document 20 before? 21 A I don't remember. Is it in my list? 22 Q I don't know. Doctor. I didn't provide your list. 23 A I certainly -- let me check this, please. 24 Q Sure. 25 A Well, this certainly makes everything look just nice and 3398 1 rosey. 2 Q Have you figured out whether you reviewed that before or 3 not, sir? 4 A This indicates information about the Foam Glass 5 operation, the glass plant. Could you point out to -- where 6 there's anything that really gives a sufficient amount of 7 detail to make any independent analysis of that air sampling 8 data? 9 Q Doctor, my question to you is simply: Had you seen that 10 before, sir? 11 A I can't remember and I can't do anything with that data. 12 Q All right, sir. So that didn't nor would it affect your 13 opinion; is that correct? 14 A Not at all. v 15 Q Not at all. Doctor, you are aware, are you not, that 16 when Pittsburgh Corning invited the U.S. Public Health 17 Service into their plant that they were of the impression 18 that the Public Health Service was going to do a medical 19 study of their people? You are aware of that, aren't you? / 20 A I'm aware there has been discussion about that, yes. 21 Q Yes, sir. And that Pittsburgh Corning had been talking 22 to Dr. Hurst from Tyler, Texas about doing a medical study 23 of their employees. But because they thought, rightly or 24 wrongly, that the Public Health Service was going to do a 25 study, they didn't have Dr. Hurst go on and do one in 1967, 3399 1 you're aware of that, are you not? 2 A I'm aware there has been some discussion about that. 3 Q Do you have any reason to doubt that, sir? 4 A Yes. 5 Q Please tell* me, what? 6 A I don't know. The more you have been telling me about 7 all of these x-rays that were supposedly have been done, I 8 don't know why Pittsburgh Corning wanted the Public Health 9 Service to come in and take more x-rays. Didn't they look 10 at the x-rays they claimed they already have and have their 11 consultants look at them and their Board-certified 12 radiologists that they talked about in their material? I 13 have not seen anything like that. \ 14 The United States Public Health Service was obligated in 15 its medical studies to the asbestos chrysotile textile 16 industry. This amosite operation was out of the purview of 17 the Public Health Services protocols for medical studies. 18 And apparently, from what I understand, there weren't even 19 funds allocated or available in the Public Health Service f 20 for these studies. And it's my understanding that that had 21 been previously conveyed to Dr. Grant and that he was fully 22 aware of this. 23 Q Where did you get that from, sir? 24 A I've heard that in the past and I've heard it discussed 25 in the last day and we certainly had discussed this in 3400 1 ..Cincinnati a number of times when I was with NIOSH. 2 Q Doctor, you heard it discussed in the last day from Mr. 3 Motley saying that Dr. Grant thought they weren't going to 4 do it? 5 A I have no reason or any data to conclude that there was 6 any evidence or .data or communication to Dr. Grant to even 7 give any inkling that the Public Health Service was going to 8 do this. This involved the mobilization of resources and 9 radiographic equipment and so on that was tied up other 10 places and I do not understand where this is coming from. 11 Q Doctor, do you remember giving your deposition back in 12 1975 in the case of Yendel, in the case of Kaye versus 13 various Defendants April 16, 1975, do you remember that? \ 14 A I remember people deposing me in Tucson, yes. 15 Q Do you remember at Page 137 of your testimony being 16 asked this question: Maybe I've confused you. Doctor, here 17 is what I mean: The purpose of the survey, they were 18 talking about the 1967 survey, what they were going to do 19 was take medical histories, you said our particular. And 20 the questioner said, yes, sir and dust surveys and medical 21 examinations. 22 And your answer on Page 138 was: Right, medical and 23 environmental measurements. And the question was: They did 24 not. They did do some but they did not make any medical 25 examinations or make medical examinations, did they. 3401 1 -And then you went on to say that's right, they 2 eventually didn't. 3 But you said at that time, did you not, that one of the 4 purpose of the study was to do medical examinations? 5 A May I clarify that, sir, for the record? 6 Q You certainly can clarify it if you first answer my 7 question. You did say that, didn't you? 8 A If I said that, I said -- I would love to see the 9 deposition and because I think that needs amplification. 10 Q You think what? 11 A That needs to be explained. 12 Q Well, let's make sure I read it right. Look at what I 13 just read. Did I read that right, down through here, \ 14 starting there? Did I read it right? 15 A I think this has to be clarified. 16 Q First tell me: Did I read it right, sir? 17 A Yes. 18 Q Thank you. 19 A Bert I think this needs to be clarified. 20 Q Please do. 21 A Okay. In 1967 the primary purpose was the collection of 22 dust samples. It came to my attention that x-rays were not 23 taken. No medical doctors were sent down to Tyler by the 24 Public Health Service. But I believe that the industrial 25 hygienist administered some form of a medical questionnaire. 3402 1 which wound up in the files in the Public Health Service. 2 Apparently Pittsburgh Corning had never asked about that, 3 from what I understand. And that information was conveyed 4 to me, I think, in a subsequent discussion that I ha$3 with 5 somebody that worked in NIOSH. 6 So, the medical aspect of that, sir, only involved 7 questionnaires. It did not involve any medical personnel. 8 It did not involve the analysis of any data. It did not 9 involve the laying on of hands of any Public Health Service 10 physicians on the amosite-exposed workers in either Tyler, 11 Texas, or Port Allegany, Pennsylvania. 12 Q Doctor, had you ever seen -- did Mr. Motley show you 13 this letter from Dr. Grant to Dr. Hurst, dated March 7th, 14 1967, where he says: "As I indicated during my preliminary 15 meeting with you" -- talking to Dr. Hurst -- "the United 16 States Public Health Service has been interested in 17 environmental and medical study in the asbestos products 18 manufacturing industry for some time. They have only 19 recently agreed to include our Pittsburgh Corning plants at 20 Tyler, Texas, and Port Allegany, Pennsylvania, in the 21 environmental study." 22 Does that talk about a medical study. Doctor? 23 A It talks about an environmental study that's been 24 committed to Pittsburgh Corning and Tyler. It only talks 25 about a medical study in relationship to the asbestos 3403 1 products manufacturing industry, which specifically was 2 chrysotile and specifically was the asbestos textile 3 industry. 4 It in no way alludes to the fact that the asbestos 5 facilities at Tyler, Texas, or at Port Allegany, 6 Pennsylvania, w^re, in f^ct, to be included in any medical 7 studies performed by the U.S. Public Health Service. 8 Q So, the Public Health Service was going to study 9 chrysotile; but they didn't want to study amosite? 10 A They had limited resources. And it sounds like, 11 according to what you've brought to my attention today -- if 12 it, in fact, is true -- that there were all sorts of x-rays 13 available. And if those x-rays were available, why weren't \ 14 they submitted to the government for review, to read them 15 for the absence or presence of asbestos-related diseases? 16 We certainly had consultants available to us in the 17 government. And perhaps some of your x-rays were -- 18 Q Do you know if Dr. Cralley ever asked for any? 19 A Why would he? It was not in the purview of the 20 protocols of the Public Health Service to -- 21 Q So, he wouldn't have been interested in that if it was 22 amosite? 23 A Not at that particular time. 24 Q But he would have been interested if it was chrysotile? 25 A According to the protocols, the focus was on chrysotile. 3404 1 And that's where the resources were allocated. That's my 2 understanding. 3 Q Did you see from Mr. Motley this letter of July 12, 4 1967, from Grant to Cralley, saying, "Dear Lewis" -- and Dr. 5 Cralley: tell the jury who he is, please. 6 A Dr. Cralley .was the .director of epidemiology for one of 7 NIOSH predecessor agencies, the National Center for Urban 8 and Industrial Health, which became the Bureau of 9 Occupational Safety and Health. 10 Q He was director of epidemiology and field studies? 11 A Yes. 12 Q What are field studies? Does that mean going out and 13 looking at people? \ 14 A Going and looking at people doing medical and mental 15 studies, ,yes, sir. 16 Q Dr. Grant kind of puzzles me when he says, "Dear Lewis, 17 what is the status of the medical portion of your studies in 18 the asbestos industry? As you know, Pittsburgh Corning 19 Corporation is interested in U.S. Public Health Service 20 following up on the environmental studies at their Tyler and 21 Port Allegany plants as soon as possible. We are also 22 awaiting the reports on these environmental studies. 23 "You may remember that I had indicated to you that prior 24 to U.S. Public Health Service involvement in the Tyler 25 plant, we had discussed with Dr. Hurst of the East Texas 3405 1 Tuberculosis Hospital, the possibility of their conducting 2 medical studies on the Tyler employees. When it appeared 3 that the U.S. Public Health Service would include the Tyler 4 plant in the asbestos industry study, we deferred further 5 discussion with-Dr. Hurst." 6 Why in the world did.Dr. Grant write that if he knew 7 they weren't go to do it, sir? 8 A I don't know. Can I see.that.a minute? 9 Q You sure can. 10 A I don't know. I think it should be pointed out for the 11 record -- may I? 12 Q Sure. Take all the time you want. 13 A -- that Dr. Lewis Cralley was a Ph.D.; he was not a V 14 physician. That the physician that was over this, to my 15 understanding, was a Dr. William Lanehart (phon.). I think 16 that I would certainly want to have discussion about this 17 with Dr. Lanehart instead of Lewis Cralley. 18 I don't particularly understand this. I've seen this 19 letter before. I don't think in any way that it obviates / 20 the need for Pittsburgh Corning to, in fact, look out after 21 the medical affairs of their own employees. 22 Q So, this is something you would like to discuss with Dr. 23 Lanehart, to see what he really means. Is that the case? 24 A I think Dr. Lanehart, being the chief medical person at 25 that time, could probably shed additional information on 3406 1 that: Do you have anything from him? 2 Q Have you talked to him? 3 A No, I haven't. 4 Q Okay. Now, Doctor -- 5 A I think it should be pointed out, also, that the Public 6 Health Service also had obligations in the coal mining 7 industry and was actively involved in their resources, with 8 looking at under ground coal miners. And that was something 9 that obviously needed attention and was a competing 10 resource, a competing program during those times. 11 So, I think you are -- again, here, I don't want to 12 oversimplify the issue. These were programing matters that 13 I had no involvement in at the time. And you may want to \ 14 direct these to the individuals in>the Government that had 15 responsibility for those matters at that time. You may be 16 talking to the wrong person. 17 Q Yes, sir. But you're testifying. 18 Let's change to another subject, sir. You and Mr. 19 Motley~talked about the Walsh Healy matter. Do you remember 20 that, sir? 21 A Yes, sir. 22 Q Okay. Make sure we get on the same wave length here. 23 Now, are you aware that the reason that Walsh Healy comes in 24 and visits an operation is because the government is buying 25 the product? 3407 1 A That's my understanding, yes. 2 Q Yes, sir. In terms of Walsh Healy, as I understand it, 3 your issue you take with that is when Mr. Stout wrote to Mr. 4 Blair, April 11, 1969, and said that Pittsburgh Corning used 5 Dr. Corn as a consultant on ventilation. 6 That's what .you think is inappropriate or you and Mr. 7 Motley said it's like writing a postdated check. 8 A Well, he had never been to Tyler. He had not -- you're 9 using a professional's name in correspondence when he, in 10 fact, hasn't even had the advantage to-have reviewed the 11 plant or made any independent assessment. 12 Q Well, what happened after that was written by Mr. Stout, 13 sir? Was it just left that way? \ 14 A No. There were some -- I would have to -- I would like 15 to get the -- 16 Q Sure. Let me help you with it, sir. There's the 17 document that you talked about, April 11, 1969. You recall 18 that, don't you? 19 A Yes, I do. There's a corresponding document back. 20 Q Yes. There's a document from-Dr. Corn to Mr. Blair less 21 than three weeks later that clarifies that and says, "Dear 22 Mr. Blair, I'm writing to clarify the letter from Burl 23 Stout, vice-president of manufacturing, Pittsburgh Corning 24 Corporation, to you, dated April 11, '69. I have been 25 working with Pittsburgh Corning central engineering 3408 1 engineers on dust control in their Port Allegany, 2 Pennsylvania, works. 3 "The manufacturing operation in this plant is similar to 4 that in the Tyler, Texas, plant. We are installing an 5 entire ventilation system and dust collector at Port 6 Allegany. However, it should be noted that I have never 7 visited or surveyed the Tyler, Texas, plant of this 8 corporation. 9 "I first saw the letter from Mr. Stout to you on April 10 28, 1969. At that time, Mr. Stout suggested that I visit 11 the Tyler plant. And I have scheduled to do so on May 7th, 12 1969. You may rest assured that all the engineering skills 13 which have been brought to bear on the Port Allegany plant 14 dust control system will be focused on the Tyler plant." 15 Now,'that was written by Dr. Corn to Mr. Blair, 16 clarifying the confusion within three weeks, wasn't it, sir? 17 A I think that we probably would want to ask Dr. Corn what 18 his particular motive was in writing that letter. And he 19 may be, in fact, responding to a concern that he, in fact, / 20 was never consulted when his name was used and is trying to 21 interject his professional concern at this time. 22 Q You just don't know, do you? 23 A No. But that's what it looks like to me, in terms of 24 the time relationship. 25 Q Looks like to me he's writing there and saying, "He 3409 1 shouldn't have said that, but I'm on my way down there." 2 Isn't that what he says? 3 A Well, I don't know how he can be on his way down there. 4 The other thing is that I think we need to point out here is 5 that Pittsburgh.Corning's facility in Port Allegany was a 6 much newer facility. We are talking about an older system. 7 I think that the record will point out that apparently these 8 used to be old military buildings in Tyler. 9 The ventilation system that Dr. Corn was talking about 10 was going to be designed for the facility in Port Allegany. 11 It did not necessarily have any direct application, the way 12 it was being designed for the facility in Tyler. And I 13 think you may be too premature in promoting it's application v 14 to the Tyler facility, particularly this early in the game. 15 Q Thank you. Doctor. I'm glad you made that point because 16 that's one of the points I've been trying to make, was it 17 was an old facility at Tyler, Texas, wasn't it? 18 A^ Oh, yes. 19 Q AncT it was much more difficult to deal with Tyler, 20 Texas, than it was with Port Allegany, wasn't it? 21 A Yes. That's maybe why it shouldn't have been allowed to 22 be perpetuated as long as it was. 23 Q What did Dr. Corn say March 25, 1970? Have you seen 24 this from Dr. Corn to John Hyde about what he has done in 25 regard to the ventilation systems? Is that something you 3410 1 reviewed, sir? 2 A No -- 3 Q Answer that first: Have you reviewed it? 4 A No. I don't believe I've seen this. 5 Q All right, gir. Let me show you something on there. 6 I'll be glad to^-- let me point out something. I'll be glad 7 to put it back in your hands, sir. 8 Does he say, "The Tyler ventilation system is the best 9 one I can design for these process operations"? Does he say 10 that? 11 A Yeah. 12 Q All right, sir. Now, would you like to look at that? 13 A Yes. 14 Q Please do. \ 15 A That's certainly at variance with anything else that I 16 have seen Dr. Corn write. And I don't understand it; I 17 really don't. There was a system that he had put in in 18 Tyler. But my goodness, he didn't put in a system -- I 19 mean, "Ire put in a system at Port Allegany which really 20 hadn't been tested until the Public Health Service went by 21 and did some air sampling, from what I understand. 22 I don't understand how he can make that statement about 23 Tyler, Texas, particularly using a superlative like 24 "excellent." And I would want to ask Dr. Corn specifically 25 what the basis for that was. I do not understand that and 3411 1 have professional questions about it. 2 Q Yes, sir. You've basically had professional questions 3 about everything, haven't you, sir? 4 A I would hope so, with the training and background I've 5 had. 6 Q Yes, sir. Now, you talked earlier about the Walsh Healy 7 matters. Let's explore that just a little bit. As far as 8 Walsh Healy is concerned, sir, that was -- to use your 9 terminology, if I can find the right place -- the things 10 that Mr. Blair and Walsh Healy got onto Pittsburgh Corning 11 about, you didn't think their conclusions were very strong, 12 did you? 13 A Do you want to show me the document? And then I will 14 comment. 15 Q Well, have you testified before that you didn't think 16 their conclusions were very strong? 17 A It's been a while. I would like to review this. I 18 don't do this for a living. 19 Q Let me find the right one, sir. There it is, sir. Tell 20 me when you've looked at it. Have you looked at 21 it? 22 Q Yes. There are two areas of concern here in the 23 Department of Labor notice of violation. One has to do that 24 there were no certified first-aiders in the plant. No. 2 25 has to do with local exhaust ventilation. Local exhaust 3412 1 ^ventilation not according to standards. The face velocities 2 are given. Those are very low. The conclusion is that the 3 present system is below required capacity. 4 It was recommended they do a study. It, to me, -is 5 interesting here that the Federal Government is pointing out 6 that again that.the ventilation system is a problem area, 7 it's not adequate and will not do the job. They are 8 suggesting that -- let's see.. 9 There's something in the bottom here that's cut off. 10 "Arrangements were made over three weeks ago with local" 11 something. I don't know what that refers to. But 12 certainly, according to what they call the American 13 Conference of Governmental and Industrial Hygienists \ 14 industrial ventilation code here, they were -- it was a 15 totally inadequate system. And -- 16 Q Did they say it was totally inadequate anywhere on 17 there? 18 A They said that it was inadequate, that it was not -- 19 Q Did they say that it was totally inadequate anywhere, 20 sir? 21 A It was below required capacity. 22 Q Yes, sir. And do you remember testifying. Doctor -- I 23 asked you the question: "Have you seen that 24 correspondence?" 25 And you said, "I have seen that correspondence." 3413 1 And the question was: "And they didn't, when they sent 2 the correspondence to Pittsburgh Corning, tell them anything 3 to say 'you've got a bad situation or a hazardous situation 4 here and you ought to take the asbestos out, you ought to 5 require respirators or anything of that nature,' did they?". 6 And do you r.emember giving an answer: "I would have to 7 review that, but I don't think their conclusions were very 8 strong." 9 And then the question was: "They, in fact, were not 10 strong at all, were they?" 11 And the answer was "no." 12 A Well, it came to my attention that Dr. Corn also was 13 apparently of that same viewpoint, and that he, in fact, 14 apparently had informal discussion.unbeknown to the time, 15 with the Department of Labor people in Dallas. He thought 16 that they were not strong enough, also. 17 Q The conclusion? 18 A That they could have pointed out a little bit harder, 19 yes. 20 Q Yes, sir. 21 A And Doctor -- 22 Q That is, in fact, what they said to Pittsburgh Corning, 23 isn't it? 24 A Yeah. And Dr. Corn, in so communicating, apparently -- 25 from my impression -- had some real concern also about 3414 1 whether the workers in that factory were being protected. 2 And I just -- 3 Q Do you know what -- 4 A It's still -- you know, it's still a filthy mess that 5 had not been taken care of. And I don't know where you're, 6 going here. 7 MR. GARRARD: Your Honor, I would move to strike 8 his last response. 9 THE COURT: Sustained. 10 BY MR. DAGGETT: 11 Q Doctor, did Mr. Motley show you the letter of July 2, 12 1969, from Mr. Stout to Mr. Blair, where he says, "All 13 persons working in areas where the report shows cjlust levels \ 14 in excess of a threshold limit value have been required to 15 wear dust respirators approved by the U.S. Bureau of Mines 16 for pneumoconiosis-producing and for nuisance dust"? 17 Did he show you that, sir? 18 A I believe I've seen this. I don't have everything here. 19 What is the date on this? July 2 -- 20 Q 1969. The "9" is just not showing up there. 21 A May I check my notes? 22 Q Sure, you can. 23 A This does look very familiar to me. Well, I think 24 that -- 25 Q My question was: Had you seen that? 3415 1 A This looks familiar to me. I just can't place it at 2 this time. I believe I've reviewed this. 3 Q Well, let me ask you. Doctor: Are you aware that the 4 Walsh Healy people. Department of Labor, had visited the 5 Pittsburgh Corning plant once before prior to this little 6 series of correspondence in 1969? 7 A I can't say for sure. 8 Q Yes, sir. Were you aware that in September of 1963 they 9 visited Pittsburgh Corning and they said of twelve 10 recommendations, one dealt with dust. And'it says, "Provide 11 other personnel protective equipment for environmental 12 conditions in accordance with Section 50-204-275. Excessive 13 amount of asbestos dust noted near sawing operations and V 14 where ground scrap is placed in the feeders." 15 Had you seen that, sir? 16 A I don't believe so, sir. 17 Q And had you seen the response of Mr. McMillan to that, 18 dated October 25, 1963, where he says, "Gentlemen, with 19 reference to your letter of September 24 listing twelve 20 items as unsatisfactory conditiohs existing at this plant, 21 this is to advise that all of these conditions have now been 22 completely corrected except for the following." 23 And that was Item No. 3, "Provide hot water for the 24 laboratories and the office building." Had you seen that 25 before today, sir? 3416 1 A No. But it's obvious that the Department -- may I see 2 this again? -- that the Department of Labor people didn't go 3 back in and reassess that, that they took the word of 4 Pittsburgh Corning that there had been corrected -- 5 Q Yes, sir. They did, didn't they? 6 A -- conditions. And I think that may be a problem, also. 7 I think, also, I think it should be pointed out on the 8 letter of July 2, 1969, it says, "All persons working in 9 areas where the report shows dust levels in excess of the 10 threshold limit values have been required to wear dust 11 respirator approved by the U.S. Department of Mines for 12 pneumoconiosis-producing or for nuisance dust." 13 From what I understand, that was something that was not \ 14 done by Pittsburgh Corning. So, I.think there's a problem 15 there, also. 16 Q But you've seen a number of letters, have you not, sir, 17 that have confused you, as you've said it, because they say 18 things other than what you and Mr. Motley had discussed; 19 isn't That true? 20 A No, sir. I've had my own knowledge of this facility for 21 some time. I've been there; I've had my own independent 22 thoughts about this. And I think that you're saying that -- 23 I don't know. You've got Mr. Motley in the middle of all of 24 this, and I don't understand why you're doing that. I think 25 that I've got my own opinions, viewpoints, and experience 3417 1 with', this facility. And I'm trying to convey that. 2 Q Doctor, Mr. Motley brought you in the courtroom to 3 testify, didn't he? 4 A Well, he thought -- 5 Q Didn't he? . 6 A Yes. He --_on the basis of -- 7 Q And he gave you and discussed with you his opinions, 8 which he admitted are biased, when he asked you questions on 9 direct examination, didn't he? 10 A I -- 11 Q Didn't he, sir? 12 A He obviously has a bias. He is representing people that 13 have been hurt or feel they've been hurt. And there is no 14 question about that. \ `, 15 What I'm trying to do here is bring some light to the 16 situation. And Mr. Motley asked me to do that. And I am 17 trying to convey to you my viewpoint, interpretation, and 18 observations. And obviously not all of those meet with your 19 pleasure. 20 Q They don't all meet with all the documents I've shown 21 you either, do they, sir? Do they, sir? 22 THE COURT: Gentlemen, it appears to me that we 23 have become a bit argumentative. 24 MR. GARRARD: I will rephrase the question. Your 25 Honor. 3418 1 BY MR. GARRARD: 2 Q Doctor, there are documents I have shown you that 3 indicate that respirators were used at the plants. Whether 4 you want to believe them or not, they're there, aren't they? 5 A You've produced some documents. From my own observation 6 and discussion with other people, including workers, have 7 reason to question that. 8 Q Yes, sir. They are documents I have shown you that show 9 that x-rays were taken of people at the plants, are they 10 not? 11 A You've shown me that. I've never seen those x-rays, as 12 a Federal physician. 13 Q Did you ever ask for them, sir? v 14 A Yeah. We asked for the ones at the East Texas Chest 15 Hospital and had nothing but a. problem in getting those. 16 Q Well, now. Doctor, you asked for those in October of 17 1971. And Dr. Grant flew with somebody from your office to 18 Austin, Texas, in January of 1972 and gave them to you, 19 didn'fr~he; isn't that true? 20 A Well, it sure took a long time to get them, when we were 21 concerned about tying up that particular medical 22 environmental study, given the seriousness of it. There was 23 some unnecessary delay which we didn't understand, still 24 don't understand it. And be that as it may, it's probably 25 not worthy of more comment. 3419 1 Q Well, you got them in January of 1972, did you not? 2 A Yes, sir. 3 Q And you have previously said, have you not, that Dr. 4 Grant was cooperative with you and the Public Health 5 Service, was he*not? 6 A Well, it was obvious.that his cooperation was very 7 limited, because I didn't have the access to all this other 8 material that I've seen here and reviewed it in detail. And 9 it's very disturbing. 10 Q Doctor, haven't you said he was cooperative with you? 11 A I said that at one time. But it's apparent to me now 12 that his cooperation was very limited, and his communication 13 with me was very limited. > 14 Q And you didn't remember till today that he had sent you 15 the list of materials that you and I talked about before, 16 including several dust studies, did you? 17 A I -- it's been since 1971 that I received that. And as 18 I say, this is not my job. This is something that I was 19 asked to do in addition to my job. And I worked until / 20 Tuesday night, got on the plane Wednesday. I was down here 21 yesterday and.am here today. And I have to go back because 22 I'm on call this weekend. 23 And I have a limited amount of time that I can give to 24 this. And I am rather amazed that you expect me to remember 25 a lot of this. There's -- whew! These documents, I think. 3420 1 -speak for themselves. And I think we'll let other people 2 make a -- come to some sort of conclusion-about it. 3 Q Doctor, would you have liked to have had more time to 4 review all the documents and all the materials before you 5 came to all these conclusions? 6 A I think I've had an adequate amount of time to review 7 the documents that were provided to me. I've seen very 8 disturbing things in some of.these documents. I've seen 9 inconsistencies. I've seen things that I do not understand. 10 I see things that obviously raise very serious questions 11 about the corporate conduct of people within the Pittsburgh 12 Corning Corporation. I think that there has been a can of 13 worms opened up here and I don't think that you and I are 14 going to resolve this this afternoon. I think this is going 15 to be resolved at another time, maybe in different settings 16 and it sounds like you've got some work cut out for you. 17 MR. GARRARD: Your Honor, I move the strike the 18 answer of the witness. It's nonresponsive to anything I 19 asked. 20 THE COURT: Overruled to that objection. 21 BY MR. GARRARD: 22 Q Doctor, it doesn't matter what I show you. From all of 23 the documents I have got or depositions I've got or evidence 24 I've got, nothing will make a difference to your opinion in 25 this case, will it? 3421 1 A I haven't seen anything at this point that is changing 2 my mind or viewpoint, sir. 3 Q So, there's nothing that I can show you that you can 4 envision that could change your mind, is there? 5 A You could g.ive it a try, you're certainly welcome. 6 Q Certainly welcome, huh? Well, Doctor, you are aware 7 that Pittsburgh Corning dealt with Dr. Hurst in terms of 8 medical examinations, are you not? 9 A Yes, I am. 10 Q You are aware that they invited the Public Health 11 Service into their plants, are you not, we have talked about 12 that? 13 THE COURT: Counsel, I think we've gotfen 14 cumulative on cross now. 15 , MR. GARRARD: I'm trying to do a wrap-up question. 16 Your Honor. Just bear with me. 17 BY MR. GARRARD: 18 Q You're aware they invited the Public Health Service into 19 their'plants, are you not? 20 A Yes, I am. 21 Q You are aware that they invited Dr. Corn and hired him 22 to look at Port Allegany and I've shown you documents about 23 Tyler, Texas, are you not? 24 A Yes. I think Dr. Corn should probably speak for 25 himself. 3422 1 Q You are aware that they hired Industrial Hygiene 2 Foundation to do studies, are you not? 3 A Yes, and I'm very disappointed with what I've seen. 4 Q You're aware that the State of Pennsylvania Department 5 of Health came into their plants and did studies, are you 6 not? 7 A Yes, and I'm aware they pointed out a problem and that 8 they on their resurvey said there wasn't a problem on the 9 basis of very limited data, sir. 10 Q Those things that Pittsburgh Corning engaged in were 11 appropriate things to do, were they not? 12 A I am not sure about that, sir. I don't know why, with 13 all of this other material that Pittsburgh Cornipg claims 14 they were accumulating, all of these other dust levels, all 15 of these ,other reports, all these other industrial hygiene 16 consultations, all of these x-rays, all of this other 17 medical, why they would come to the Public Health Service, 18 in fact, for a couple of additional dust studies and for 19 additional medical when, with their resources and what they / 20 claim they have, no, sir I am totally confused about that 21 and maybe that's worthy of more questions. 22 Q Let's get on one other thing. Doctor. I've got about 23 two more areas I want to cover and I will be through. 24 You took significant issue with Dr. Grant's explanation 25 of health matters to employees and your basic issue you took 3423 1 or criticism was that he said that it takes twenty years or 2 more of exposure to develop asbestosis, you recall that? 3 A Yes, sir. 4 Q That was your basic criticism, was it not, of his 5 explanation to the employees? 6 A Yes. 7 Q Doctor, do you know who Irving Selikoff is? 8 A I certainly do. 9 Q Is he respected in your mind? 10 A He's respected in some circles and he is questioned by 11 others. 12 Q Is he respected in your mind, in relation to asbestos 13 matters? 14 A On some issues, yes. v 15 Q On medicine? 16 A He has an experience with asbestos diseases that is very 17 indepth and hands-on. He has practiced as a chest 18 specialist and certainly as a clinician viewed the problems 19 of woricers that developed asbestos-related diseases 20 certainly both from the clinical and epidemiologic point of 21 view, this individual is a tremendous individual that has 22 written stuff that I certainly use and respect, yes, sir. 23 Q Did you take issue with his statement in 1967 when he 24 addressed the heat and.frost insulators and asbestos workers 25 and said and, I quote, "Men begin breating in dust but the 3424 1 diseases that.they develop don't develop for twenty-five or 2 thirty or thirty-five years and probably that is why we 3 doctors didn't understand it until recently." 4 Did you take issue with him when he said it took twenty, 5 twenty-five, thirty years? 6 A May I say that I think that can be interpreted two or 7 three different ways. 8 Q All right, sir. Right there's where I was reading. 9 Doctor, first tell me, did I read it correctly? 10 A This is in 1960 -- 11 Q '67. 12 A And this is in Chicago, Illinois. Okay. 13 Q And he was addressing the heat and frost insulators and \ 14 asbestos workers, wasn't he? 15 A Well, there are two or three ways to interpret this. 16 One is that they don't develop for twenty-five or thirty or 17 thirty-five years. In other words, it's a concept we call 18 latency. These disease are not instantaneous. They develop 19 over time. This in no way refers to the duration of 20 exposure to the years of exposure. 21 This talks about the years to develop and appreciate in 22 some individuals. In other words, you can have a shorter 23 duration of exposure, the disease will continue to progress 24 after the cessation of the exposure and may not clinically 25 manifest itself for twenty-five, thirty or thirty-five years 3425 1 -in some individuals. That's one way to interpret that, sir, 2 and that's the way I look at that limited. 3 Q That's the way you select to interpret it? That's the 4 way you select to interpret it? 5 A That's what- it appears to me to be, sir. 6 Q I see. Now, one other area. Doctor. In terms of the 7 work done by Dr. Cralley's group, which is the group you 8 eventually hooked up with in '67, and then they published a 9 report which we have talked about, the Pittsburgh Corning in 10 March of '68. Then they did another study in 1970. The 11 first report from the Public Health Service given to 12 Pittsburgh Corning with definitive recommendations other 13 than you said something about in 1968 they said use some 14 respirators, with definitive recommendations was the one 15 that was-given to Pittsburgh Corning in December of 1971, 16 was it not, from the Public Health Service? 17 A That is correct, the National- Institute for Occupational 18 Safety and Health. 19 Q Yes, sir. And you were aware that Pittsburgh Corning / 20 shut down the operation in 1972 in February, are you not? 21 A Yes, I am. 22 Q And you've previously testified that was a prudent thing 23 to do, haven't you? 24 A It sounds like it was the only thing to do. 25 Q It.was a prudent thing to do, wasn't it? 3426 1 -A And the only thing to do. 2 Q Yes, sir. You've previously said it was a prudent thing 3 to do, haven't you? 4 A Obviously it was a prudent thing to do. It should have 5 been done way, way, way in the past. 6 Q Well, did ypu see in all that you've reviewed anything 7 from the State of Pennsylvania, the Public Health Service, 8 Walsh Healy as a federal act. State of Texas, saying 9 preceding that time, shut it down? Have you seen any 10 document that says that, sir? 11 A No, I haven't. 12 MR. GARRARD: Thank you. That is all I have got. 13 THE COURT: Any redirect? 14 MR. MOTLEY: Yes, briefly. 15 REDIRECT EXAMINATION 16 BY MR. MOTLEY: 17 Q Ladies and gentlemen of the jury, would you kindly turn 18 in this book to Exhibit No. 4397. Doctor, if you can find 19 4397/ 1 will be grateful. If you can't, I will be glad to 20 just read it to you. 4397, it's dated August 30th, 1971 on 21 Pittsburgh Corning Corporation stationery. 22 A I don't believe that I -- 23 Q That's all right. To save time I will just read it. 24 Ladies and gentlemen, do you have that August 30th, 1971? I 25 would ask the ladies and gentlemen of the jury to turn to 3427 1 Page" 6. 2 But let me ask you this: Mr. Garrard showed you all of 3 these documents from Pittsburgh Corning to different people 4 claiming they had a mandatory respirator policy, didn't he? 5 A Yes, uh-hutu 6 Q Uh-huh. They claimed to the Government they had one, 7 correct? 8 A Yes. 9 Q Well, let's look and see what they really had. This is 10 a document. Doctor, from the personnel- manager of Pittsburgh 11 Corning Corporation. I ask the ladies and gentlemen of the 12 jury to kindly look in the middle of the page under Item No. 13 6, talking about respirators. This is the program as it 14 exists today. This is the date ofAugust 30th, 1971, 15 Doctor. 16 Respirators were not mandatory in any area, in any area, 17 prior to August the 24th, 1971, but were only provided with 18 the choice being left up to individual employees who we 19 already know weren't told about the health hazards; isn't 20 that correct? 21 A That's true. 22 Q Does that indicate to you they have been phonying up 23 more than the two that we have talked about? 24 A That they've? 25 Q Phonied up. 3428 1 A Yes. 2 Q . Now, he asked you about Dr. Corn. I want to read you 3 his sworn testimony? 4 MR. GARRARD: If Your Honor, please, this is not in 5 evidence in this trial. 6 MR. MOTLEY: Your Honor> he implied that Dr. Corn 7 felt this way and felt that way. Here's his sworn testimony 8 about what really he felt. I would like to ask him if that 9 coincides with his impression of what he saw when he was 10 there. 11 MR. GARRARD: Your Honor, I would like take this up 12 out of the presence of the jury if he's serious about that 13 because I think it has matters -- 14 THE COURT: Counsel, I always assume objections are 15 serious. 16 MR. GARRARD: If he is serious about it. I don't 17 know what transcript he is referring to. I don't know that 18 my client was involved in that transcript and I think it's 19 improper to have him now read on redirect from a Corn 20 deposition which is also hearsay.' 21 MR. MOTLEY: Let me phrase it in the form of a 22 hypothetical. Your Honor, under Rule 703, if I might. 23 THE COURT: I will listen to the hypothetical. 24 MR. MOTLEY: All right. 25 BY MR. MOTLEY: 3429 1 Q Or. Johnston, assume that Dr. Corn, whom Mr. Garrard 2 asked you about, testified as follows: On the time of your 3 second visit to Tyler, when you had your information or data 4 from the first visit, did you at any time tell any of the 5 men working in Jthe factory, talking about Tyler, of your 6 findings. His answer was: Absolutely, I told them all. We 7 had a forum, me against the plant foremen. I am telling 8 them, the men, they should wear respirators and I'm wearing 9 a respirator and him, the plant manager, telling them I am a 10 sissy. 11 QUESTION: You stood in front of the workers and told 12 them that? 13 ANSWER: Absolutely, in groups. 14 QUESTION: And the plant manager was there? 15 ANSWER: And the plant manager was there contradicting 16 me and I wished I remembered his name. I can't. But he was 17 really quite a macho character. But I was ridiculed for 18 wearing the protection I was wearing. And the men asked me 19 why arS' you wearing that, what are you doing. I explained 20 it and he, the plant manager, told them he didn't think it 21 was necessary. 22 We are talking about 1969, Doctor. I ask you to assume 23 the truth of what I just said to you. 24 MR. GARRARD: I object. 25 THE COURT: You're asking him to assume the truth 3430 1 of the fact that the statement was made? 2 MR. MOTLEY: Yes, sir. 3 THE COURT: But not of the substance. 4 MR. MOTLEY: Absolutely. 5 MR. GARRARD: I object to that again. It's 6 hearsay, improper redirect examination. He brought up Corn 7 in his direct examination. I merely responded to that. I 8 think that's inappropriate. 9 THE COURT: Well, the substance of the matter has 10 been addressed on both direct and cross. I think it's 11 proper. You may answer the question. 12 BY MR. MOTLEY: 13 Q Assume that statement was made by Dr. Corn, that they % 14 called him a sissy for wearing a respirator. Is that 15 consistent with what you found when you went there in 1971, 16 the attitude of management when you were there? 17 A Yes, absolutely. 18 Q Mr. Garrard asked you about Dr. Corn in that letter that 19 you saird you couldn't understand why he wrote the letter, do 20 you remember that? 21 A Yes. 22 Q I ask you to assume this fact: That it was said, said 23 last Friday, in fact, by Dr. Corn. 24 MR. GARRARD: Same objection. Your Honor, we're 25 getting well beyond any permissible redirect examination in 3431 1 .a document that is, in fact, hearsay. We object to 2 preceding the entire examination. 3 THE COURT: I'm sorry, I didn't hear your last -- 4 MR. GARRARD: We objected to this document 5 preceding the entire examination of this witness that he is 6 reading from. 7 THE COURT: Is this a document that I have ruled 8 on? 9 MR. GARRARD: No, sir, you never ruled on that. 10 It's a deposition that Mr. Motley has scammed it up from 11 somewhere and we object to it. 12 THE COURT: Why don't you ladies and gentlemen take 13 about a five-minute break. 14 (JURY OUT AT 2:36 P.M.) 15 ,MR. MOTLEY: I will just withdraw this question. 16 Your Honor, since the jury is not in here, can we get 17 some scheduling guidance? We are not going to be required 18 to argue any motions today for directed verdict or anything 19 like tffat? 20 THE COURT: Why not? 21 MR. MOTLEY: I'm just asking if we are. 22 THE COURT: If we get this case over, we are going 23 to immediately do that. 24 MR. MOTLEY: All right. Thank you, sir. That was 25 my scheduling question. THE COURT: Now, are you about through? MR. MOTLEY: Yes, sir. I've got five minutes. A real five minutes, not a South Carolina five minutes. THE COURT: I will hold you to that. MR. MOTLEY: I know you will. Judge. THE COURT: Mr.. Rice, if you could maybe expedite the doctor's return. MR. RICE: Yes, sir. MR. GARRARD : Will you ask the jury to disregard -- MR. MOTLEY: I'm going to withdraw the question on the record. I didn' t even get a question asked. THE COURT: I didn't hear a question. MR. MOTLEY: Your objection -- THE COURT: If he asked one, I didn't hear it. ,MR. GARRARD : He was reading from the deposition. MR. MOTLEY: I never got one on the record. THE COURT: Gentlemen, let's maintain some order. I think we can go ahead and bring the jury in. (JURY IN AT 2:50 P.M.) t THE COURT: Doctor, in five minutes you're going to be excused. THE WITNESS : Thank you. MR. MOTLEY: Madam Clerk, did you distribute that document? Thank you THE CLERK: Yes. 3433 1 CONTINUED REDIRECT EXAMINATION 2 BY MR. MOTLEY: 3 Q Now, Doctor, you have a copy of this in front of you? 4 A Yes. April 3, 1968, to the -- 5 Q This is in regard to the U.S. Public Health Service 6 study in 1967 about Tyler, Texas? 7 A Yes. 8 Q "I have reviewed the subject report to you from J. R. 9 Lynch, a copy of which was sent to me at my request. This 10 showed a significant health hazard existed from asbestos 11 dust inhalation throughout the Unibestos operation. The 12 following jobs were evaluated." They list them. 13 "Similar findings have been made in previous industrial 14 hygiene surveys of this operation,.and control 15 recommendations have been made. You must anticipate that 16 both some cases of asbestosis and an increased incidence of 17 pulmonary carcinoma will develop in your employee population 18 as a result of continued exposure to these levels for 19 fifteen'or more years." 20 Not twenty to thirty like he told the employees, right? 21 A Yes, sir. 22 Q "I strongly recommend appropriate steps be taken as soon 23 as possible to reduce dust exposures of the Unibestos 24 employees to safe levels." 25 Now, sir, for four more years they continued not To 3434 1 reduce the dust levels, did they? 2 A Yes. My reaction to this is that it's disgusting. 3 Q Well -- 4 A It's disgusting. 5 MR. GARRARD: If Your Honor, please, I move to 6 strike that statment. 7 THE COURT: Sustained. 8 MR. GARRARD: Ask the jury to disregard it. 9 THE COURT: The Court had previously instructed the 10 jury how they deal with matters that are sustained. 11 BY MR. MOTLEY: 12 Q Now, Dr. Johnston, Mr. Garrard talked to you about Dr. 13 Grant and who he was. You remember correspondence to Mr. 14 Stout, Burl Stout, the vice-president? 15 A Yes, sir. 16 Q All right. This is his sworn testimony. "Was it your 17 normal procedure with regard to health matters to refer it 18 to Dr. Grant?" 19 "ANSWER: Yes. 20 "QUESTION: Why was that? 21 "ANSWER: Because he was the authority in our 22 organization. He was a consultant for our company and one 23 of the owners. And so, we didn't have a medical consultant 24 within our group. So, we used him." 25 Is that consistent, the sworn statement of the 3435 1 vice-president of Pittsburgh Corning, with why you were 2 dealing with Lee Grant? 3 A Yes. He was the medical man. 4 Q Doctor, they asked you, sir, about the medical program. 5 I don't have that copy here, but if I could show this to 6 you. This is 19.69, October. He is talking about this 7 promising Dr. Hurst to go look at the employees. 8 Here's two years later, 1969. "In addition to the dust 9 control program on which you are already well-embarked, I 10 strongly recommend a comprehensive annual medical 11 examination of all Unibestos employees, as well as a strong 12 health education program concerning the particular hazards 13 of cigarette smoking and asbestos workers." 14 Does that indicate to you that.they had any kind of 15 health program, sir? 16 A It indicates to me that Dr. Grant certainly saw the need 17 for one. And it raises questions about all those other 18 annual x-rays and periodic x-rays that have been alluded t. 19 Q Probably didn't exist, did they? 20 A I don't know. 21 Q Well, when you got there in 1971 as the government's 22 official investigator, nobody came up to you and said. Dr. 23 Johnston, we're glad to see you. Here's all these x-rays we 24 got," did they? 25 A No, they did not. 3436 1 Q 1 didn't think so. 2 MR. MOTLEY: Your Honor, one second here. 3 BY MR. MOTLEY: 4 Q Now, finally, on this letter they wrote to the Bath Iron 5 Works -- and Mr, Garrard showed you some dust counts that 6 were less than the TLV t you remember that? Were 7 relatively safe -- didn't he? He showed you some that were 8 relatively safe, didn't he? 9 A Yes, he did. 10 Q But the letter that they wrote to the customer said they 11 were all safe, didn't they? 12 A Let me take a look here. "They have shown dust 13 exposures to be within safe levels for these materials, % 14 repeated dust studies." 15 Q They,don't say that -- 16 A There's no indication here that there were any excessive 17 levels, that there were any problems at all, yes. 18 Q So, they tell the customers that they are all safe when, 19 in fact, over half of them were dangerous, right? 20 MR. GARRARD: I object to the form of the question. 21 He hasn't said anything about "all." It's an improper 22 characterization, Mr. Motley. 23 THE COURT: The jury has heard the evidence. They 24 will determine from their recollection. 25 BY MR. MOTLEY: 3437 1 Q What does the letter say. Doctor? Does it say some are 2 hazardous and some are safe? 3 A It says, "Repeated dust studies by both the Industrial 4 Hygiene Foundation and State Health Departments have-shown 5 dust exposures to be within safe limits for these 6 materials." 7 Q It doesn't say a word about any of them being hazardous, 8 does it? 9 A That is correct. 10 Q And that's not true, is it? 11 A That's -- I'm sorry. 12 Q That's not true, what they said, is it? 13 A It's not true at all, no. 14 MR. MOTLEY: Thank you. No further questions. 15 MR. GARRARD: I have two questions. 16 THE COURT: Very well. 17 RECROSS-EXAMINATION 18 BY MR. GARRARD: 19 Q Doctor, the first question, do you recall receiving a / 20 letter dated August 30 th, 1971, from Mr. Martin Waukash 21 (phon.), the State of Texas? 22 A Yes. That's familiar to me. 23 Q Yes, sir. And that was based on a visit that he made in 24 1971 to the Pittsburgh Corning plant, was it not? 25 A Yes. 3438 1 Q And does he say right here on the fourth page, "The 2 efforts of management toward the protection of the health of 3 the workers seemed the central theme of expression by those 4 who responded"? Does he say that, sir? 5 A Well, I think with all -- 6 Q Does he sayit, sir? 7 A It's mentioned in here. Yes, it says that. 8 Q All right. 9 MR. GARRARD: Thank you, sir. 10 MR. MOTLEY: Excuse me. What was the date of that? 11 THE WITNESS: August 30th, 1971. 12 MR. GARRARD: August 30th, 1971. 13 THE COURT: Doctor, you are excused, sir. 14 THE COURT: Next witness.. 15 ,MR. RICE: Your Honor, are we going take a break at 16 3:00? 17 THE COURT: How long is your next witness? 18 MR. RICE: About twenty minutes. We've got a 19 little~bit of publishing things to read that we can do right 20 now before the break. 21 THE COURT: All right. 22 MR. RICE: Your Honor, we would read into the 23 record, pursuant to agreement with Celotex counsel, the 24 corporate history of the Philip-Carey Corporation. 25 MR. ARREDONDO: Excuse me. Can I just follow 1 2 3 4 5 . CERTIFICATION 6 7 We hereby certify that the foregoing is a correct 8 transcript from the record of proceedings in the 9 above-entitled matter, to the best of our ability. 10 11 Cll. fTl^rhUJ--- 12 C. Frank McMillan 13 Official Court Reporter 14 3-c?-_?0 Date 15 16 Susan Simmons Official Court Reporter 17 18 19 20 21 22 23 '24 25 !