Document mqLzYvYb97vYR9QraZmjQEeDk

IN THE CIRCUIT COURT OF HARRISON COUNTY WEST VIRGINIA LENORA PERRINE, CAROLYN HOLBERT, WAUNONA MESSINGER, REBECCAH MORLOCK, ANTHONY BEEZEL, MARY ELLEN MONTGOMERY, MARY LUZADER, TRUMAN R. DESIST, LARRY BEEZEL, and JOSEPH BRADSHAW, individuals residing in West Virginia, on behalf of themselves and all others similarly situated, Plaintiffs, vs. CIVIL ACTION NO. 04-C-296-2 E.I. DU PONT DE NEMOURS AND COMPANY, a Delaware corporation doing business in West Virginia, etal, Defendants. VOLUME XVII OCTOBER 3, 2007 HARRISON COUNTY COURTHOUSE Page 4191 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4192 Page 4194 1 2 3 4 5 6 Proceedings had in the above-entitled 7 action before the Honorable Thomas S. Bedell, and 8 a jury, in the Harrison County Courthouse, 9 Clarksburg, West Virginia, on the 3rd day of 10 October, 2007. 11 12 13 14 15 REALTIME REPORTERS, LLC TERESA S. EVANS, RMR, CRR 16 108 Cedar Ridge Ripley, WV 25271 17 (304) 372-8069 1-800-805-8079 18 19 20 21 22 23 24 1 APPEARANCES: 2 APPEARING FOR THE DEFENDANT DuPONT: 3 David Thomas, Esquire 4 Stephanie D. Thacker, Esquire ALLEN GUTHRIE McHUGH & THOMAS 5 P. O. Box 3394 Charleston, WV 25333-3394 6 Jeffrey A. Hall, Esquire 7 Andrew C. Baak, Esquire John S. Phillips, Esquire 8 BARTLIT BECK HERMAN PALENCHAR & SCOTT Courthouse Place 9 54 West Hubbard Street Chicago, IL 60610 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Page 4193 Page 4195 1 APPEARANCES: 2 APPEARING FOR THE PLAINTIFFS: 3 Farrest J. Taylor, Esquire 4 Keith Givens, Esquire Angela Mason, Esquire 5 THE COCHRAN FIRM 163 W. Main Street 6 Dothan, AL 36302 7 Mike Papantonio, Esquire Steven A. Medina, Esquire 8 Neil E. McWilliams, Esquire Brian Barr, Esquire 9 LEVIN PAPANTONIO THOMAS MITCHELL ECHSNER & PROCTOR 10 316 S. Baylen Street, Suite 400 Pensacola, FL 32502 11 Gerald E. Jones, Esquire 12 Perry Jones, Esquire WEST & JONES 13 360 Washington Avenue Clarksburg, WV 26302 14 Gary W. Rich, Esquire 15 Brock, Reed & Wade Building 212 High Street, Suite 223 16 Morgantown, WV 26505 17 18 19 20 21 22 23 24 1 INDEX 2 3 DEFENDANT'S WITNESSES DIRECT CROSS REDIRECT 4 David Garabrant, M.D. 4208 4301 5 Kelly Nelson, M.D. 4375 4434 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2 (Pages 4192 to 4195) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4196 Page 4198 1 PROCEEDINGS 1 like to focus on three points, and with respect to 2 THE COURT: Be seated, please. Let's go 2 the others, rest on the paper that we have filed 3 on the record. Comes on for proceedings at the 3 this morning. 4 present time a matter encaptioned Lenora Perrine, 4 Under the first element of Bower, the 5 et al versus E.I. DuPont DeNemours & Company, et 5 plaintiff must show significant exposure. Bower 6 al, Defendants. The matter bears Case No. 6 makes clear that a significant exposure is what is 7 04-C-296-2. 7 required, not mere exposure. Doctor Werntz 8 The Court would note that today is 8 yesterday testified that he merely assumed 9 Wednesday, the 3rd day of October, 2007. These 9 exposure. He did no tests. 10 matters come on by way of further proceedings of 10 In fact, he testified he had never met a 11 the jury proceedings which recessed at the close 11 single member of the class and didn't even know 12 of the day on the 2nd day of October, 2007. 12 how many class representatives there were. Doctor 13 Will counsel be so kind as to note their 13 Werntz testified that he relied on Doctor Brown, 14 appearance for the record and further note the 14 who is a soil scientist, not a medical doctor. 15 presence or the absence of their respective 15 Doctor Brown is not an expert in cancer 16 clients or others whose attendance they care to 16 causation, and Doctor Brown has no basis for 17 note. 17 opining on the levels of exposure that are 18 Mr. Taylor? 18 sufficient to justify or necessitate medical 19 MR. TAYLOR: Thank you, your Honor. With 19 monitoring. 20 me today is Joseph Lane, Gary Rich, Angela Mason, 20 With respect to Doctor Brown's testimony 21 our client, Lenora Perrine, and Brian Barr. 21 and the insufficiency of that testimony, we'd rely 22 THE COURT: Okay. Mr. Hall? 22 and incorporate our Phase 1 judgment as a matter 23 MR. HALL: Good morning, your Honor, Jeff 23 of law briefing. 24 Hall for DuPont. With me is Brian Prestes, also 24 But just to provide two specific Page 4197 Page 4199 1 Shawn Gallagher, who will be handling the 1 examples, Doctor Brown conducted no risk 2 examination of our first witness, David Thomas and 2 assessment on lead, and his contour maps on lead 3 Mr. Yalvigi. 3 show extremely low levels of lead, below the 4 THE COURT: Counsel, let me note that 4 levels that Doctor Brown himself identified as 5 appropriate, as far as the timing goes, that the 5 clean. 6 Defendant DuPont moved for judgment as a matter of 6 Moreover, the only tests of presence of 7 law at the close of the plaintiffs' case yesterday 7 lead in the bodies of anyone then introduced in 8 on the medical monitoring phase and further has 8 this case -- the ATSDR tests show no significant 9 submitted their written motion for judgment as a 9 exposure to lead. So on that point, we believe 10 matter of law on medical monitoring or, in the 10 that DuPont is entitled to judgment as a matter of 11 alternative, to decertify the class. 11 law. 12 Let me ask counsel who will again address 12 Two other points quickly, Judge. The 13 that to approach the bench and we'll argue it at 13 first is that we believe the plaintiffs have 14 side bar. 14 failed to show an increased risk of disease. 15 (Counsel approached the bench and the 15 That's Bower Element 4. The plaintiffs must show 16 following proceedings were had out of the hearing 16 a significantly increased risk of disease caused 17 of the audience:) 17 by the exposure they've alleged. 18 MR. PRESTES: Good morning, Judge, Brian 18 Again on this point, Doctor Werntz, the 19 Prestes on behalf of DuPont. DuPont moves for 19 plaintiffs' only Phase 2 witness, provided only 20 judgment as a matter of law, or in the 20 nonspecific testimony, not testimony relating to 21 alternative, to decertify the class. 21 anything having to do with this class. 22 There is no sufficient evidentiary basis 22 Again he relied on Brown, and I'd 23 for the jury to find for the plaintiffs on a 23 incorporate the argument I just made about the 24 number of the critical elements of Bower. I'd 24 insufficiency of Doctor Brown's testimony to 3 (Pages 4196 to 4199) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4200 Page 4202 1 support the opinion that the plaintiffs are at an 1 experimental procedure based on a, quote, 2 increased risk of disease, especially as it 2 "uncorroborated premise." 3 relates to lead for which Doctor Brown conducted 3 And finally, one other specific example, 4 no risk assessment whatsoever. 4 which is kidney and stomach cancer screening. 5 My final point relates to the fifth 5 Again, Doctor Werntz conceded that, quote, "No 6 element of Bower, which is that the plaintiffs 6 organization recommends screening for kidney 7 must show medical testing is reasonably 7 cancer and stomach cancer." And to the extent 8 necessary. And the way Bower has defined that is 8 that Doctor Werntz's opinion itself is not 9 reasonably necessary testing is testing that a 9 supported by any facts and to the extent that it's 10 qualified physician would prescribe. 10 contradicted by the vast weight of science -- of 11 First off, many of the diseases that 11 the medical consensus on Doctor Werntz's own view, 12 Doctor Werntz described in his testimony yesterday 12 we believe that DuPont is entitled to a judgment 13 are diseases for which Doctor Werntz himself 13 as a matter of law on those points. 14 concedes medical monitoring is not appropriate. 14 With that, your Honor, and with respect 15 Doctor Werntz went through a laundry list 15 to the other points in our paper, DuPont is 16 of perhaps 20 diseases, but in the end, with the 16 content to rest on its papers. Thank you. 17 assistance of one of plaintiffs' demonstratives, 17 THE COURT: Ms. Mason? 18 testified there were only five cancers and three 18 MS. MASON: The plaintiffs have 19 noncancer diseases, and so DuPont submits that to 19 established every one of the elements that is 20 the extent any of those other diseases are in 20 required in Bower through Doctor Werntz's 21 play, they cannot form the basis of a medical 21 testimony. The defendant's motion is based 22 monitoring claim. 22 primarily on trying to relitigate Doctor Brown's 23 They may go to show - if plaintiffs' 23 conclusion and the jury's acceptance of those 24 evidence is taken as correct - that lead or 24 conclusions concerning his risk assessment. Page 4201 Page 4203 1 arsenic or cadmium have the potential to be 1 It is true that Doctor Brown did not 2 harmful, but they certainly cannot be the basis of 2 perform a risk assessment on lead itself; however, 3 a medical monitoring program. 3 he did measure lead levels and -- not in humans, 4 Two other quick examples. First, Doctor 4 and Doctor Werntz testified that lead has additive 5 Werntz testified -- we think Doctor Werntz's 5 effect, and because of that additive effect, it is 6 testimony shows that CT scans are not reasonably 6 reasonably necessary to consider that a 7 necessary. He testified that those scans are not 7 significant risk, and increased -- and increasing 8 recommended by the United States Preventive 8 the risk of contracting a serious latent disease. 9 Services Task Force, which Doctor Werntz conceded 9 Doctor Werntz, in addition to relying on 10 himself is the consensus. 10 Doctor Brown, performed his own qualitative 11 Although Doctor Werntz himself does 11 analysis that he testified to yesterday. Doctor 12 recommend those CT scans, the bare unsupported 12 Werntz established the significant risk of 1 in 13 opinion of Doctor Werntz, in the face of his own 13 100,000, and confirmed that Doctor Brown's risk 14 testimony that the consensus of qualified 14 assessment is three times that, I believe, in the 15 physicians does not recommend those tests, we 15 furthest-away zone, Zone 3. 16 believe entitles DuPont to judgment as a matter of 16 So it exceeds Doctor Werntz's 17 law, at least as it relates to the CT scan element 17 determinations -- actually exceed the levels that 18 of plaintiffs' proposed medical monitoring plan. 18 even Doctor Brown found in his risk assessment. 19 Indeed -- now, Doctor Werntz relies on 19 In other words, Doctor Werntz reviewed it himself 20 only a single article for his CT scan 20 and made his own conclusions about what 21 recommendation. It is an article from the Journal 21 constitutes significant risk. 22 of the American Medical Association, which itself 22 It would be in -- we -- Doctor Werntz 23 concluded - as I believe was shown on cross 23 presented testimony on various diseases that can 24 examination - that these CT scans are an 24 be caused by all three of the elements at issue. 4 (Pages 4200 to 4203) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4204 Page 4206 1 Those three diseases -- goes to show that they are 1 instead of Doctor Hall, that counsel ought to be 2 hazardous, that he restricted his medical 2 making the closing summation. 3 monitoring to what he would consider to be, as a 3 Most, if not everything, counsel's 4 practicing physician in West Virginia, reasonably 4 introduced really goes to the weight of the 5 necessary to screen for and practical as well. 5 evidence, which is really an issue for the trier 6 Are there any other issues that you'd 6 of fact. 7 want us to specifically address? 7 The Court cannot say as a matter of law 8 THE COURT: Counsel, anything in 8 that the plaintiffs failed in any one of the 9 conclusion? 9 Bowers factors or in any of the subarguments that 10 MR. PRESTES: Yes, your Honor, just three 10 have been made. Seems to me that those are -- 11 quick points. First of all, Ms. Mason has 11 they may very well be compelling arguments, but 12 suggested that we are trying to relitigate the 12 one that must be offered to the triers of fact, 13 jury's acceptance of Doctor Brown's conclusions. 13 and the Court - even accepting those in a light 14 We don't think that's accurate. Though 14 most favorable - cannot say as a matter of law 15 it is true that in the Phase 1 verdict, the jury 15 that the plaintiffs failed to meet its burden at 16 did conclude that there had been exposure, as I 16 this point. 17 previously suggested, the relevant question here 17 So for those reasons and all other 18 is whether there has been significant exposure. 18 reasons appearing of record, the motion for 19 In addition, the Phase 1 verdict found 19 judgment as a matter of law - or in the 20 exposure to persons or property, and thus there is 20 alternative, to decertify class - will be denied 21 no Phase 1 verdict making -- accepting the 21 and the defendant's exceptions preserved. 22 conclusion that there has been significant 22 MS. MASON: Thank you, your Honor. 23 exposure to persons. 23 MR. PRESTES: Thank you. 24 Moreover, to the extent there is any such 24 (Counsel returned to counsel table and Page 4205 Page 4207 1 conclusion, we believe that there is no sufficient 1 the proceedings continued in the presence and 2 evidence to support that conclusion. 2 hearing of the audience as follows:) 3 Second, I'm somewhat confused by 3 THE COURT: We have about ten minutes, 4 counsel's reference to Doctor Brown's risk 4 counsel. They're deliberating lunch. 5 assessment and how they provide a basis for Doctor 5 (A recess was taken after which the 6 Werntz's opinion, because as is clear from the 6 proceedings continued as follows:) 7 record, Doctor Brown conducted no risk assessment 7 THE COURT: Be seated, please. 8 on lead, and hence, there is no basis in Doctor 8 Mr. Bailiff, you may return the jury to its box, 9 Brown's testimony or in the evidence that has come 9 sir, please. 10 in to this case so far for Doctor Werntz to 10 (The jury returned to the courtroom.) 11 testify that any class members have been exposed 11 THE COURT: You may be seated. Good 12 to a risk relating to the exposure to lead that 12 morning, ladies and gentlemen of the jury. Let me 13 would justify medical monitoring. 13 note the appearance of all 11 of our jurors who 14 Finally, it sounds like we are in 14 are again present before the Court and the parties 15 agreement on the issue relating to the laundry 15 and their respective counsel. 16 list of diseases that Doctor Werntz testified to 16 I believe the plaintiff now having 17 and the fact that although he testified to, say, 17 rested, it's the Defendant DuPont's presentation 18 20 or more diseases; only a small number of those 18 of evidence. Mr. Hall, DuPont may call its first 19 five cancers and three noncancers would even 19 witness, sir. 20 conceivably form the basis of the medical 20 MR. HALL: Yes, your Honor, DuPont calls 21 monitoring program that the plaintiffs urge. 21 David Garabrant. Mr. Gallagher will handle the 22 THE COURT: Counsel, let me indicate 22 examination, your Honor. 23 although counsel for DuPont makes a compelling 23 THE COURT: If you'll come forward, sir, 24 argument and if -- if his client was smart, 24 and be sworn, please. 5 (Pages 4204 to 4207) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4208 Page 4210 1 (The witness was sworn.) 1 Harvard. 2 THE COURT: You may have a seat up here 2 In 1980 to 1981, I completed my senior 3 in the witness stand, please. 3 residency in internal medicine at Boston 4 DAVID GARABRANT 4 University medical center in Boston. And so by -- 5 was called as a witness by the Defendant, and 5 in 1981, I finished my training. 6 having been first duly sworn, testified as 6 Q. Are you currently licensed to practice 7 follows: 7 medicine? 8 DIRECT EXAMINATION 8 A. I am currently licensed to practice 9 BY MR. GALLAGHER: 9 medicine in Michigan, I have an active license. 10 Q. Good morning. Would you tell us your 10 I'm also licensed to practice in Massachusetts, 11 name? 11 Washington, D.C., Maryland and California. Those 12 A. Yes, David Hay Garabrant. 12 licenses are inactive because I don't reside in 13 Q. Are you a medical doctor? 13 those states. 14 A. Yes. 14 Q. Are you board certified to practice in 15 Q. What is your specialty? 15 any specialties in medicine, special areas? 16 A. Occupational and environmental medicine 16 A. Yes. I'm board certified in preventive 17 and also internal medicine. 17 medicine, and within preventive medicine, the 18 Q. Do you study the human health effects of 18 field of occupational medicine. I'm also board 19 exposure to chemicals in the environment? 19 certified in internal medicine. 20 A. That's what I've spent my career doing. 20 Q. How long have you been practicing 21 Q. Have you been asked to provide expert 21 occupational and internal medicine? 22 opinions in this case concerning the medical 22 A. Well, since I finished my residency in 23 monitoring program suggested by the plaintiffs' 23 1981, so that's 26 years. 24 expert, Doctor Werntz? 24 Q. Are you still practicing medicine today? Page 4209 Page 4211 1 A. Yes, I have. 1 A. Yes. 2 Q. And in particular, have you been asked to 2 Q. As -- over the course of your career 3 consider whether Doctor Werntz's conclusions about 3 since 1981, has the nature of your practice 4 the risk of cancer and other diseases are 4 changed? 5 warranted in light of the evidence? 5 A. Yes. I'm on the faculty at the 6 A. Yes. 6 University of Michigan, and been there for -- it 7 Q. Before we get to your opinions on that, 7 will be 19 years this fall. And over that 19 8 let's talk about your background. Could you 8 years, my time has shifted much more towards doing 9 describe for the jury your education? 9 research and much less in the clinic caring for 10 A. Sure. I got my undergraduate degree, my 10 patients. 11 college degree, in chemical engineering. I went 11 Q. Do you still see patients, though? 12 to Tufts University outside of Boston, graduated 12 A. I do. 13 in 1972. Then I went directly to medical school, 13 Q. At the University of Michigan, do you 14 also in Boston, at Tufts University School of 14 teach classes to students in the medical school 15 Medicine, received my M.D. degree in 1976. 15 and graduate schools? 16 I interned at Georgetown University 16 A. I teach in the School of Public Health 17 Hospital in Washington, D.C. in internal medicine 17 principally, and also in the School of Medicine. 18 in 1976/'77, then I did a fellowship in medical 18 Q. What subjects do you teach? 19 ambulatory care also at Georgetown, 1977 to 1978. 19 A. I teach risk assessment, I teach 20 Then from 1978 to 1980, I did a residency 20 occupational environmental diseases. I teach 21 in occupational medicine at the Harvard School of 21 research methods in occupational and environmental 22 Public Health in Boston. At that same time, I 22 epidemiology, and I run a number of different 23 also received two graduate degrees, one in public 23 seminar courses. They vary from year to year. 24 health and a master of science in physiology from 24 Q. You mentioned that at the University, you 6 (Pages 4208 to 4211) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4212 Page 4214 1 do research. Is there a particular area that you 1 going to accept this manuscript," or "We're not 2 focus on in your research? 2 going to accept it." And typically when they 3 A. Yes. I've spent my whole career doing 3 don't accept it, they write you back and say, 4 epidemiology, studies of people who handle 4 "We're sorry, your manuscript is not accepted, 5 chemicals and who are exposed to chemicals. So 5 comments from the reviewers are attached. If you 6 I've spent my whole career out in work places, in 6 are willing to respond to those comments, we would 7 factories, in the auto industry, in mines, various 7 be happy to reconsider your manuscript." 8 industrial facilities, chemical plants, looking at 8 And so you read the comments and you say, 9 cancer risks among people who are exposed to 9 "Yeah, you know, I can do those things," and good 10 chemicals, sometimes looking at risks of lung 10 reviews often suggest things that make your 11 disease, sometimes looking at risks of nervous 11 manuscript better. So they say, "You know, you 12 system or neurologic disease. 12 really should have presented this data," or "We'd 13 That's what I've spent my career doing. 13 like to see this table" or whatever, and so then 14 And also looking at environmental exposures and 14 you revise your manuscript and you resubmit it, 15 disease risks related to those exposures. 15 and hopefully it gets accepted. 16 Q. Now, does that research that you do, does 16 Sometimes it doesn't. Sometimes you 17 that involve preparing studies that summarize your 17 submit it to a different journal; sometimes you 18 findings? 18 start over again. 19 A. Well, it certainly involves writing the 19 And that process -- so then if it gets 20 findings up and writing them for publication in 20 accepted, then it gets published in that peer- 21 the peer-reviewed literature. I do that 21 reviewed journal, such as the Journal of 22 routinely. 22 Occupational Environmental Medicine or 23 Q. Are studies that are performed in your 23 Environmental Health Perspectives or one of the 24 area typically published in a scholarly journal of 24 professional journals that publishes original Page 4213 Page 4215 1 some sort? 1 research. 2 A. Certainly try to get them published in 2 Q. Is that process called peer review? 3 scholarly journals, yeah. 3 A. That's called peer review, yes. 4 Q. Can you describe that process for us? 4 Q. And is it called peer review because you 5 What do you have to do to get your research 5 have other scientists that work in the field, 6 published in a journal? 6 people who know the area, look at your research 7 A. Yeah. So you have to do the research. 7 and pass judgment on whether it meets the criteria 8 You have to have written up what the results are 8 for your science? 9 and what it means, and you typically put that in a 9 A. Yeah, the idea of having peers is that 10 manuscript form. Every journal has its own 10 people that are qualified in the area that you are 11 format. You have to look at the journal format. 11 working in are reading and critiquing your work, 12 And then you mail it to the journal, or now you 12 and so that's peer review. 13 submit them electronically. 13 Q. How many of your studies have gone 14 The journal receives your manuscript, 14 through this peer review process and been 15 they send you now an e-mail saying, "Yeah, we 15 published in scholarly journals? 16 received it," and then the editorial board of the 16 A. Oh, I don't know the exact count. It's 17 journal sends it out to other scientists who are 17 over 100 at the moment. 18 qualified in the area of your research to read 18 Q. Do you participate in the peer review 19 your manuscript and review it and write a review, 19 process as one of the people who reviews the 20 and they write comments and criticisms about the 20 studies when they come in to the journals? 21 manuscript. 21 A. Oh, sure, yeah. 22 They send those back to the editorial 22 Q. What journals do you perform peer review 23 board in the journal, and the journal looks at 23 for? 24 them, and they say, "Okay, well, we're either 24 A. I review for the Journal of Occupational 7 (Pages 4212 to 4215) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4216 Page 4218 1 Environmental Medicine, Environmental Health 1 Q. In your research as an occupational -- in 2 Perspectives, American Journal of Industrial 2 occupational medicine since 1980, have you 3 Medicine, Cancer Epidemiology, Biomarkers and 3 conducted research into the causes of cancer? 4 Prevention, Occupational and Environmental 4 A. Oh, yeah, I've -- a considerable part of 5 Medicine. There are more. I'm trying to think -- 5 my career has been spent doing cancer 6 ones I haven't done recently -- 6 epidemiology. 7 Q. It's a bunch of journals? 7 Q. Without going over the entire body of 8 A. Yeah, there are probably six or seven 8 what you've done, are there any studies or 9 journals that send me manuscripts and ask me to 9 projects that you've worked on that you are 10 review them. 10 particularly proud of, what you think is your most 11 Q. Does that take time out of your workday 11 significant contribution to the body of scientific 12 to do that? 12 knowledge on the causes of cancer? 13 A. It sure does. 13 A. I think the one that I like the most is a 14 Q. Do you get paid to do that? 14 paper that my colleagues and I published in 1984 15 A. No. No, everybody does that because it's 15 that showed that people who have physically active 16 part of being a scientist. It's part of 16 occupations are at lower risk of colon cancer than 17 participating as a scientist. You know, the 17 people who have sedentary occupations. 18 reward is that you get to see what's being done, 18 And we published that in the American 19 you get to see what people are working on, you get 19 Journal of Epidemiology in 1984. It's been 23 20 to see what they're thinking about, and it's very 20 years. And that -- that study has been confirmed 21 engaging work. 21 now over 50 times, and now that finding is in all 22 Q. You mentioned earlier -- you used the 22 the textbooks, that physical activity reduces your 23 term "epidemiology" to explain research that you 23 risk of colon cancer. 24 do. Can you give us a very short -- we'll get 24 And I see it -- you know, I see it in the Page 4217 Page 4219 1 into it more later. But can you give us a very 1 news, I see it in, you know, Living Well and Good 2 short explanation of what that is? What is it, 2 Housekeeping and all the things you buy in the 3 epidemiology? 3 grocery store. It's basically accepted now as an 4 A. Epidemiology, the word comes from the 4 established fact, that physical activity reduces 5 same word "epidemic," and epidemic is an unusual 5 your risk of colon cancer. 6 occurrence of disease. 6 And we were the first people to report 7 So there's some background rate of 7 that. So I'm -- I'm proud of that one, because I 8 typhoid or cholera or tuberculosis and then all of 8 think it had some impact, and maybe it's prevented 9 the sudden, there's a big surge. That's an 9 some cancer. 10 epidemic, okay. Epidemiology is the study of 10 Q. Have you done any research into the 11 patterns of diseases in the human population, and 11 incidence of cancer in the workplace? 12 it has its routes in studying infectious diseases 12 A. Oh, sure, yeah. We've -- actually 13 like tuberculosis, cholera, typhoid, those types 13 another one I'm very proud of, we did a study for 14 of diseases, and now it includes studying patterns 14 a chemical company, the Rohm and Haas Corporation 15 of cancer risk, patterns of lung disease, patterns 15 in Philadelphia. Rohm and Haas had been doing -- 16 of cardiovascular disease and trying to uncover 16 had been following their cohort of workers that 17 why people get these diseases and why people are 17 worked for us in one of their plants in 18 at increased risk. 18 Philadelphia for years looking at cancer risk, and 19 Q. Is epidemiology one of the ways that 19 they received an excess of pancreas cancer in 20 scientists study the causes of cancer? 20 their work force, so they came to me, because I 21 A. Oh, absolutely. In the human population, 21 had some interest in pancreas cancer, and they 22 it's probably the principle area of study to try 22 said, "What should we do? We think we've an 23 and uncover what puts people at increased risk of 23 excess?" 24 cancer. 24 And I said, "Well, we really ought to do 8 (Pages 4216 to 4219) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4220 Page 4222 1 a case control study to try to see whether the 1 medical surveillance programs for the City of 2 people with pancreas cancer have been handling 2 Pasadena, California. Pasadena had a large number 3 chemicals differently or different chemicals than 3 of people who required medical surveillance, had 4 the workers who don't have pancreas cancer." That 4 police officers, firefighters, emergency 5 approach would be a case control study. 5 responders. Pasadena has its own electrical power 6 And because I was a chemical engineer in 6 plant, so they have power plant workers who are 7 college, I actually had some familiarity with 7 potentially exposed to a number of hazardous 8 industrial processes and industrial chemistry, so 8 materials, and they also have their own parks 9 I actually did the study. I worked on-site in the 9 department that handles pesticides, they have 10 plant interviewing workers for months, and we 10 water and sewer workers, so there are confined 11 found that people who had handled DDT and two 11 space entry issues. 12 pesticides derived from DDT that were made in that 12 So we did all the medical monitoring for 13 plant were at very high risk of pancreas cancer, 13 all of the City of Pasadena employees. 14 and we published that study in the journal of the 14 Q. Through your work in research and medical 15 National Cancer Institute, the JNCI, and it was 15 monitoring, have you become familiar with the 16 actually a lead article. 16 human health effects and the exposure to 17 It was a very important article. And it 17 substances like arsenic, cadmium and lead? 18 said, "You know, we've got a seven-fold risk among 18 A. Yes, I have. 19 pancreas cancer among people who handle DDT and 19 MR. GALLAGHER: Your Honor, we tender 20 two very similar chemicals made from DDT." 20 Doctor Garabrant as an expert in occupational and 21 Q. You talk about some of your research. In 21 environmental health, in epidemiology and in 22 your practice of medicine, have you been involved 22 particular, the study of the human health effects 23 in medical monitoring programs? 23 from exposure to substances in the environment. 24 A. Yes. 24 THE COURT: Any objection or voir dire as Page 4221 Page 4223 1 Q. Can you describe your experience with 1 to qualifications, Mr. Barr? 2 medical monitoring? 2 MR. BARR: Your Honor, we'll do our 3 A. Yeah. We've got to back up a step. 3 questions on cross. 4 After I finished my residency in 1981, I was asked 4 THE COURT: Let me so qualify the 5 to join the faculty of the School of Medicine at 5 witness, and you may proceed. 6 the University of Southern California. USC had - 6 MR. GALLAGHER: Your Honor, is it okay if 7 and still has - a very fine department of 7 I go over there and put a board up on the easel? 8 preventive medicine that does Cancer Epidemiology 8 THE COURT: Yes, sir. 9 studies, so it's a department of 23 or 24 9 Q. Doctor Garabrant, did you review the 10 physicians and statisticians who do Cancer 10 expert report that Doctor Werntz prepared to 11 Epidemiology, so I joined the faculty at USC, and 11 describe his proposed medical monitoring program? 12 I was at USC for seven years. 12 A. Yes, I did. 13 While I was there, I did medical 13 Q. And did you -- do you understand that 14 monitoring for a number of different populations 14 Doctor Werntz has testified that there -- in the 15 of people. I did medical monitoring for two brass 15 class area, there is a significant exposure that 16 foundries. When you make brass, one of the 16 leads to a significantly increased risk of certain 17 ingredients is lead, and because lead boils off at 17 types of cancer and certain noncancer ailments? 18 a lower temperature than the other metals in 18 You understand that from reading his report? 19 brass, pouring molten brass generates lead fume, 19 A. Yes, I do. 20 so you have to monitor brass workers typically for 20 Q. Specifically with respect to that 21 lead exposure. 21 question, whether there is a significant exposure 22 So I sat up and ran medical monitoring 22 leading to a significantly increased risk of 23 for lead exposure on these brass foundry workers. 23 cancer or noncancer risks in the class area, do 24 I also, with two colleagues, ran the 24 you have an opinion as to whether Doctor Werntz's 9 (Pages 4220 to 4223) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4224 Page 4226 1 conclusions are well-founded? 1 one coherent picture?" 2 A. Yeah, I do. 2 That's what we try to do. 3 Q. What is your opinion on that? 3 Q. And you prepared a series of slides to 4 A. Well, I don't think they're well-founded. 4 help us understand what epidemiological studies 5 I don't think he's gone through the process of 5 look like, the studies you're talking about that 6 putting together the scientific evidence that 6 you had collected and look at. 7 would adequately provide a foundation for his 7 A. Yeah, sure. 8 opinions. And I don't think that scientific 8 Q. Is this the presentation you prepared? 9 evidence actually exists that would provide that 9 A. Yes. 10 foundation. 10 Q. So tell us what -- if you could introduce 11 Q. I'd like to talk about the cancer risks 11 to us your presentation on studies. What are we 12 and the noncancer risks separately and start with 12 going to talk about here? 13 the cancer risks. With respect to the risk of 13 A. Before I can talk about what the 14 cancer, how do scientists make a decision about 14 epidemiology says about cancer, I've got to talk a 15 whether an exposure to something like arsenic, 15 little bit about what epidemiology does and how we 16 cadmium or lead is likely or is known to cause 16 do it. 17 cancer? 17 Okay. So as I've already said, 18 A. Let me just go through the steps. First, 18 epidemiology is that field of science that studies 19 there has to be research that looks at populations 19 the distribution of diseases and their causes or 20 of people who are exposed to that chemical, and 20 the exposures in human populations. Epidemiology 21 that research has to be published, and it has to 21 is not about laboratory animals; it's about people 22 show that people who are exposed are at increased 22 who live in society and do what people do and who 23 risk of that chemical. 23 go to work and have exposures at work and come 24 And that evidence has to include 24 home and eat foods and smoke cigarettes and do Page 4225 Page 4227 1 estimates of the exposure, and you have to know 1 what people normally do. 2 about the exposure pathway, in other words, 2 And the purpose is to understand the 3 whether it's a setting where people are handling 3 causes of disease in human -- in the human 4 the chemical because there's dust or fume or vapor 4 population. 5 in the air, or whether they're getting that 5 Q. Are there different types of 6 chemical through drinking water, so ingestion. So 6 epidemiological studies that have been performed 7 the exposure pathway matters, and the exposure 7 to get at that question? 8 level matters. 8 A. There are two principal types of studies, 9 And is there an association of increased 9 cohort studies and case control studies. Okay -- 10 cancer risk with that exposure? When a study like 10 Q. Can you tell us what a cohort study is? 11 that is done, we often -- in fact, we almost 11 A. A cohort study is, I think, the one 12 always expect to see it replicated. In other 12 that's intuitively clearest. To do a cohort 13 words, we expect to see that other people have 13 study, you find a group of people who are exposed 14 studied the same issue and have found similar or 14 to the chemical. Okay? And let's use an example 15 identical results. 15 like coffee drinking. 16 You know, and results do vary, you know, 16 So you would identify a population of 17 from chance a little bit. But we expect to see 17 people who drink coffee, and then you'd want to 18 replication. And so a scientist who says that a 18 compare them to people who don't drink coffee, 19 chemical causes a disease like cancer has to go 19 right? Because you're interested in, "Well, does 20 back and find that scientific evidence and has to 20 coffee cause -- we'll use the example of pancreas 21 assemble it and has to try and figure out, "Okay, 21 cancer, because it's a famous one. 22 there's 10 or 15 or 20 studies that have looked at 22 So you want to know, does coffee drinking 23 that issue. What does that body of literature 23 cause pancreas cancer? You say, "Let's get 24 actually say when you try to put it together into 24 together a cohort of coffee drinkers, let's get 10 (Pages 4224 to 4227) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4228 Page 4230 1 together a cohort of people who don't drink 1 four out of twelve on the right in the nonexposed 2 coffee." And so you follow both groups for years 2 group, so they have a halving of the risk, in 3 - because cancer is a very slow disease - you 3 other words, one half. Which is equally as big as 4 follow both of these groups for 10, 20, 30, 40 4 two-fold. Like one half and two-fold are equally 5 years, and as time passes, you identify who got 5 large ratios. 6 pancreas cancer in both groups. 6 Q. Okay. So just so it's clear, the three 7 Okay, now we can go to the next slide. 7 basic possibilities are the two groups will be 8 Q. Just so it's clear, when you're doing 8 roughly the same or that one or the other will 9 this cohort study and comparing the groups, you 9 show a greater incidence of the disease. 10 have the exposed group that you've illustrated 10 A. That's correct. 11 here, and then you have the nonexposed group, 11 Q. All right. So then what do you do with 12 right? 12 the results to provide a conclusion about this? 13 A. Exactly. 13 A. Okay, we calculate what's called a risk 14 Q. The exposed group is the group that has 14 ratio or a rate ratio, which is very simply taking 15 been exposed to the thing you're studying, right? 15 what happens among the exposed group and dividing 16 A. Right. 16 it by what happens among the nonexposed group. 17 Q. And the nonexposed group is the group 17 So in this example, in the exposed, two 18 that's never been exposed to what you're looking 18 out of twelve got the disease. We put that in the 19 for. 19 numerator, and then two out of twelve in the 20 A. Right. And we could use arsenic as an 20 nonexposed group got the disease, we put that in 21 identical example, in other words, a group of 21 the denominator, and the ratio is what matters. 22 people exposed to arsenic and a group of people 22 Okay? If the ratio is 1, it says the two 23 not exposed to arsenic. 23 groups are equal. If the ratio is above 1, it 24 Q. Okay. So what do you do next? 24 says the exposed group is at increased risk. So Page 4229 Page 4231 1 A. You follow them, as I said, in cohort 1 the risk ratio is above 1, there's increased risk 2 studies for cancer, typically for decades, okay? 2 in the exposed, and if the risk ratio is below 1, 3 And you see who got the disease under study. And 3 it says the exposed group has less disease. 4 I've marked here with purple boxes that in both 4 Sometimes -- you'll say, "Well, how could 5 groups, you get cancer. Because there is a 5 you have less disease?" It goes back to my 6 background of cancer in every population. 6 physical activity study. We found that the people 7 And so the issue now is whether the rate 7 who exercised had lower risks than the people who 8 of cancer is higher in the exposed group than it 8 didn't, so the exposure prevented cancer, so it 9 is in the nonexposed group. All right? And so 9 can go either way. Or you can have no association 10 you have to compare exposed to nonexposed, and you 10 at all. Okay, so -- 11 want to see what the rates are different, okay? 11 Q. What -- 12 Q. So how do you do that? 12 A. We covered this. The positive 13 A. Well, essentially you count them up, all 13 association, so here would be a risk ratio of 14 right? And so in the top diagram, I've got the 14 four-fold, and the next one, here would be a risk 15 two groups have equal rates of disease because in 15 ratio of one quarter or .25. Okay, so you -- you 16 both groups, you've got two out of twelve with the 16 know, that's how we calculate these relative risks 17 disease. 17 or risk ratios, and we call this a measure of 18 In the middle, I've got the exposed group 18 association. 19 has a higher rate of disease, you've got four out 19 Is the exposure associated with disease 20 of twelve compared to two out of twelve, so that's 20 risk? Okay. 21 a doubling of the risk. 21 Q. So in this case, you've got a negative 22 And in the bottom diagram, the exposed 22 association. 23 group has a lower rate of disease, okay? So two 23 A. You can have a negative association. 24 out of twelve on the left in the exposed group, 24 Q. And does take mean -- if you see a 11 (Pages 4228 to 4231) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4232 Page 4234 1 negative association, that's less than that 1 1 assemble their work records and find out what 2 value that was the value of them being the same. 2 their past exposures were, and we do that for both 3 A. Right, if it's below 1, it's a negative 3 groups, right? And so here I've -- I've 4 association. 4 highlighted now in dark green among the cases, 5 Q. And if you have a negative association, 5 four of the twelve had exposure, or the way we 6 does that mean that people who were not exposed to 6 actually calculate it is, among the cases, four 7 the chemical actually got more cancer than the 7 had exposure, eight did not, and we calculate it 8 people who were? 8 as odds. 9 A. That's correct, the exposed group has 9 Anybody who's ever bet on horses or a dog 10 lessor the nonexposed group has more. 10 race knows what odds are. It's the number of 11 Q. So that's a cohort study. Can you 11 times something will occur if divided by the times 12 explain what a case control study is, the second 12 it doesn't occur. So we get the exposure odds 13 type? 13 among the cases. We get the exposure odds among 14 A. Yeah. I mentioned that pancreas cancer 14 the controls, and then we just compare them, put 15 study I did for the chemical company. We did a 15 the odds of the cases, the odds over the cases 16 case control study. Case control study is just a 16 over the odds on the controls, and we call that an 17 little different design. What you do is, you go 17 odds ratio, and it tells us the same thing as that 18 out and find people who've got the disease you're 18 cohort study tells us. 19 interested in. 19 It tells us whether exposure is 20 So here we were interested in pancreas 20 associated with disease. All right? If the cases 21 cancer. So you've got to go out and find them, 21 have had more exposure than the controls, the odds 22 typically by working with the hospitals, working 22 ratio is above 1. If the cases and controls have 23 with the tumor registries in the area, working 23 had the same amount of exposure, the odds ratio 24 with the state registrar of death information to 24 equals 1. Page 4233 Page 4235 1 get death certificates, so you assemble 50 or 100 1 All right? So it's the same idea that 2 or 300 people who've got pancreas cancer, and then 2 you're looking to see whether exposure is more 3 you want to compare them to people who do not have 3 common among people with disease, and we calculate 4 pancreas cancer. 4 a relative risk. In this instance, it's called an 5 And the people who don't have pancreas 5 odds ratio, but it's the same idea as we saw 6 cancer, we call controls. So the cases are people 6 before. And if it's greater than 1, it's a 7 with the disease; the controls are people who 7 positive association. 8 don't have it. And the controls are supposed to 8 Okay. 9 come from -- to do the study right, they are 9 Q. So can you explain -- summarizing that, 10 supposed to be drawn from the population, the same 10 what do the studies - cohort studies and the case 11 population from which the pancreas cancer cases 11 control studies - at the end of the day, what do 12 came. 12 you get? 13 So the issue is, okay, we've got people 13 A. Okay. In both types of studies, we look 14 who got cancer, people who don't. What's 14 for this measure of relative risk, and that is 15 different about them? All right? What's 15 called an association between exposure and 16 different about them? If we did that study for 16 disease. If it's 1.0, it means there's no 17 lung cancer and we looked at smoking habits, we 17 association at all, the two groups are the same. 18 would realize very quickly that the people with 18 If it's greater than 1, it's a positive 19 lung cancer had smoked much more than the people 19 association; if it's less than 1, it's a negative 20 who don't have lung cancer, and of course, we have 20 association. 21 to match them on age and sex and -- 21 So it doesn't matter what the study 22 Okay. And so what we do then - if I can 22 design is, we measure it the same way. 23 have the next slide - is that we typically 23 Q. Now, if you have a relative risk greater 24 interview them or interview their next of kin or 24 than 1, does that mean, as a matter of science, 12 (Pages 4232 to 4235) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4236 Page 4238 1 that the thing you are studying causes cancer? 2 A. Sometimes, but sometimes not. 3 Q. Can you explain why it can sometimes not 4 mean cancer? 5 THE WITNESS: Next slide, if you would. 6 A. Okay. So associations occur for a number 7 of reasons. The first is that it represents a 8 causal -- a causal relationship, the exposure 9 causes the disease. But sometimes it's due to a 10 badly-designed study, that there's some bias in 11 the study, so you have to look carefully. 12 Sometimes it's due to what we call 13 "confounding," which means there's some other 14 factor that you didn't include in the study that 15 is causing an apparent association. For example, 16 if I study lung cancer and coffee drinking, I 17 would find that they're associated. But they're 18 associated because people who drink a lot of 19 coffee tend to smoke more. 20 And so that's confounding due to smoking. 21 The true cause is something that I didn't include 22 in my study - it's the smoking - and it produces 23 this apparent association between coffee drinking 24 and lung cancer, and so you have to deal with 1 taken a poll of how many people approve of the 2 president's performance and, you know, let's say 3 they find 32 percent plus or minus 4 percent, that 4 plus or minus 4 percent is the confidence 5 interval. 6 That is, what they're saying is, for a 7 sample as big as we took - and these surveys often 8 include 800 or 900 people - we are 95 percent 9 confident that the true answer falls between 32 10 plus or minus 4, so between 28 and 36. That's a 11 confidence interval. 12 And so you see it all the time, and you 13 always see it in scientific studies, because it 14 gives you a sense for, "Okay, is it possible that 15 chance explains this?" Now, the important point 16 -17 THE WITNESS: If I can have the next 18 slide. 19 A. So -- often we see graphs like this where 20 the relative risk is presented as a little box or 21 a little circle or something in the middle of a 22 range, and then a bar on either side represents 23 the confidence interval. 24 If that confidence interval includes 1.0, Page 4237 Page 4239 1 that, or when you -- when you read a study, you 1 what it means is, "Well, okay, these results are 2 have to think, "You know, is there some 2 reasonably compatible with the idea that there's 3 confounding factor that they didn't deal with?" 3 really no association." In other words, we saw a 4 Okay, because that can -- that can give 4 relative risk of 1.38, but it's reasonably likely 5 you a -- an erroneous conclusion. Okay, and then 5 that the truth could be 1. 6 I think the most important one, at the bottom, is 6 "We saw 1.38, but it could be 1." On the 7 chance, okay? Associations occur by chance, and 7 other hand, if that confidence interval -- if the 8 we have to evaluate the role of chance, and 8 relative risk is up there way high and the 9 scientists always do that. They always calculate 9 confidence interval doesn't include 1, then you 10 "P" values or confidence intervals to evaluate, 10 say, "You know, this is unlikely to be a chance 11 "Well, what's the role of chance in these 11 finding," so chance is effectively not the 12 findings?" 12 explanation for it. 13 Q. The confidence interval, can you explain 13 So we always evaluate the role of chance 14 what that means? 14 in assessing these relative risks. 15 A. Sure. We calculate this measure of 15 Q. In any one study that you've looked at, 16 association called relative risk, and then we 16 any one epidemiological study about cancer, would 17 calculate the confidence interval around it, and 17 you see a relative risk reported with a confidence 18 conventionally, it's a 95 percent confidence 18 interval? 19 interval, and that confidence interval is the 19 A. You typically do. Older studies didn't 20 range within which the relative risk would fall 95 20 used to do it, but for the past 20 years, it's 21 percent of the time if we did the study over and 21 been typical to do it that way. 22 over and over again. 22 Q. Now, as a scientist, would you draw a 23 And you know, we see these in the 23 conclusion about causation based on one study? 24 newspaper all the time, when you read that they've 24 A. I -- I would be very reluctant to do 13 (Pages 4236 to 4239) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4240 Page 4242 1 that, and I would not do that if there were other 1 animal carcinogen, it might be carcinogenic to 2 studies that were properly conducted. I would 2 humans. 3 look at all of the evidence. I wouldn't rely on a 3 Group 3 is chemicals for which there is 4 single study. I'd look at all the evidence. 4 just not enough evidence to make any decision, we 5 Q. When it comes to studying the causes of 5 can't classify it. And then Group 4 - and you can 6 cancer, what substances cause cancer and under 6 see that there's only one chemical that's ever 7 what circumstances, are there bodies -- are there 7 been put in Group 4 - the evidence is strong and 8 groups of scientists who compile all the evidence 8 adequate to say, "This thing probably doesn't 9 and put it all in one place for you to look at, 9 cause cancer." 10 summarize it for you? 10 So -- so the -- the plan is to figure out 11 A. Yes. 11 which chemicals cause cancer and to assess the 12 Q. Is the International Agency for Research 12 strength of the evidence. 13 on Cancer one of them? 13 Q. Are there other agencies like IARC that 14 A. Sure, yeah. The International Agency for 14 perform a similar function of classifying 15 Research on Cancer is actually part of the United 15 substances by what the evidence shows about their 16 Nations. Within the UN, there's the World Health 16 cancer risk? 17 Organization. We all remember UNICEF when we were 17 A. Yes. And I put together a little slide. 18 kids, you know, collecting money in grammar school 18 Across the top row, you can see the U.S. 19 for UNICEF, vaccinating kids abroad. That's part 19 Environmental Protection Agency does this, IARC 20 of the World Health Organization. 20 does this, the American Conference of Governmental 21 World Health Organization also includes 21 Industrial Hygienists, the ACGIH, does it, and the 22 an agency called IARC, or the International Agency 22 National Toxicology Program, or the NTP, does it. 23 for Research on Cancer, and its mission is to do 23 And you can see that they have different letters 24 cancer research and particularly to evaluate which 24 and numbers, which makes it very confusing. Page 4241 Page 4243 1 chemicals and industries and occupations and foods 1 But the categorization system is very 2 and pharmaceuticals cause cancer in humans. It's 2 similar across agencies. So a Group 1 or a Group 3 a very important function. 3 A or a Group A-1 means "This agent causes cancer 4 And so IARC does that, and they use a -- 4 in humans, we have enough evidence to say that," 5 a grouping system, Groups 1, 2A, 2B, 3 and 4. 5 and then the ones below that mean, "Well, there's 6 Agents that are put into Group 1 are ones 6 limited evidence in humans, but some animal 7 where the scientists who are convened feel that 7 evidence" or "No evidence in humans but some 8 the evidence is adequate to say "this chemical 8 evidence in animals," and it goes on from there. 9 causes cancer in humans." Okay? 9 Q. Have you looked at the classifications 10 2A means the animal evidence is 10 that the organizations provide for arsenic, 11 sufficient to say it's an animal carcinogen, but 11 cadmium and lead? 12 the human evidence isn't good enough. There's 12 A. Yes, I have. 13 some human evidence, but it's just not good 13 Q. Is there any difference in their -- in 14 enough. 14 the treatment that the EPA provides in terms of 15 And the -- the conclusion is, "Well, that 15 where it classifies it versus IARC and the other 16 chemical is probably carcinogenic to humans," but 16 agencies? 17 the evidence isn't good enough to say that we know 17 A. Well, we've got to go through the agents. 18 it causes cancer in humans. 18 Arsenic is a human carcinogen by everybody's 19 And then for agents where there's little 19 classification. There's no argument about that. 20 human evidence or sometimes no human evidence, but 20 Cadmium is a human carcinogen according to IARC, 21 the animal evidence is still good, those are 21 but is in the next category down according to two 22 typically put in 2B where it's "possibly 22 of the classifications, and I don't have my own 23 carcinogenic to humans." In other words, the 23 list in front of me. 24 human evidence isn't there, but we know it's an 24 I think it's EPA and ACGIH. So there's 14 (Pages 4240 to 4243) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4244 Page 4246 1 some minor disagreement about the strength of the 1 personal experience with cancer, either through a 2 evidence for cadmium. 2 parent or a sibling or an aunt or uncle or 3 And then for lead, none of these agencies 3 grandparent or children. And cancers are very 4 classifies lead as a human carcinogen. 4 different. 5 Q. You mentioned that these agencies 5 So for example, nonmelanoma skin cancer 6 classify arsenic as a human carcinogen. Why isn't 6 is almost always curable; lung cancer is rarely 7 -- the question here is, is arsenic in the 7 curable. Pancreas cancer is one of the worst. I 8 environment? Why isn't that classification the 8 mean, the five-year survival for pancreas cancer 9 end of the story? I mean, why not just stop right 9 is horrible. 10 there and say, "The EPA says this is known to 10 So cancers have different presentations, 11 cause cancer?" Why don't we just stop with that? 11 they have different treatment, and they have 12 A. Well, there's much more to the story than 12 different survival. They are different diseases. 13 that. 13 Q. Do they also have different causes? 14 You know, if I could just get one of the 14 A. Yes, they have different causes as well. 15 IARC books, these are -- these are complicated 15 Q. So just because something causes lung 16 decisions. The assessment of arsenic -- this is 16 cancer in certain circumstances through certain 17 the volume on arsenic in drinking water put out by 17 exposure routes, that doesn't mean that it's going 18 IARC, Volume 84, published in 2004. 18 to cause skin cancer through another route. 19 This is the volume that includes cadmium, 19 A. That's correct. I mean, the cancer risks 20 Volume 58, published in 1993. This is the volume 20 are specific to the chemical and the pathway of 21 on lead, inorganic and organic lead compounds. 21 exposure. And it differs, pathway by pathway. 22 It's published in 2006, just came out earlier this 22 Q. Now, does the designation that's given to 23 year. I mean, it's a whole book on what the 23 a -- to an element like arsenic by EPA or the 24 evidence says, and a full and fair assessment of 24 IARC, does that designation tell you what kind of Page 4245 Page 4247 1 what that evidence means. 1 cancer it's known to cause, through what -- by 2 And when IARC does that, they consider 2 what route of exposure or at what dose? 3 exposure levels, they consider whether the 3 A. No. No, this is a -- a summary sentence 4 exposure occurs by inhalation or whether it occurs 4 that says, "The evidence is adequate to say, this 5 in drinking water or whether it occurs by skin 5 is a carcinogen to humans" or "The evidence is not 6 contact. They consider the dose. They consider 6 adequate to say this is a carcinogen to humans, 7 all of the human epidemiology. 7 but it's adequate to say it's probably or possibly 8 They consider all of the animal 8 carcinogen to humans." 9 experiments in laboratories and rats and mice and 9 Q. Yesterday, Doctor Werntz suggested that 10 hamsters and other species, so it requires a lot 10 living in the area around a smelter necessarily 11 of work to consider the entire body of evidence, 11 increases your risk of cancer. Do you agree with 12 and it's critically important to think about the 12 that conclusion? 13 exposure pathway and the levels of exposure that 13 A. No, I do not. 14 put people at risk as well as what types of cancer 14 Q. Why not? 15 occur from a certain exposure pathway. 15 A. Let's look at the evidence. 16 Q. That's -- 16 Q. What evidence do you need to look at? 17 A. Things you inhale may cause cancer in the 17 A. Well, the epidemiologic evidence, that 18 lungs but nowhere else, whereas things in drinking 18 studies that have looked at populations that live 19 water may cause cancer in different organs, 19 around smelters. And these studies have been done 20 because the exposure pathway matters. 20 in many, many locations throughout the world. 21 Q. That's a point I want you to elaborate 21 Q. And do you need to look at that evidence 22 on. You said it's important to consider what type 22 separately for arsenic and separately for cadmium 23 of cancer. Are all cancers the same? 23 and separately for lead? 24 A. No, no. I think most people have had 24 A. If you can, yes. 15 (Pages 4244 to 4247) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4248 Page 4250 1 Q. Why -- 1 Q. Can you explain what this chart is you 2 A. If the evidence exists, that's what you 2 prepared? 3 should do. 3 A. Yeah. This is just a schematic to try 4 Q. Why do you want to look at the evidence 4 and make it clear that the risks of cancer are 5 separately for arsenic and separately for cadmium 5 different for inhalation than they are for 6 and separately for lead? 6 drinking water. Okay? So for inhalation, 7 A. Well, first off, our assessment of 7 particularly in occupational settings, lung cancer 8 whether these chemicals cause cancer in humans is 8 is a risk. 9 different for each of those. The types of cancer 9 Q. Is there any indication in the scientific 10 they cause are different, and they differ in terms 10 literature that inhalation of arsenic at any level 11 of which pathways of exposure lead to cancer and 11 - whether it's in the environment or occupational 12 which cancers. 12 exposures - that that pathway, that route, 13 So you really have to be specific about 13 exposure, causes bladder, skin or kidney cancer? 14 the agent and the route of exposure and the 14 A. I don't believe so. I don't believe so. 15 chemicals that it's referring to. 15 It's lung cancer in the inhalation literature. 16 Q. In your work, did you look separately at 16 Q. And then you have a separate route down 17 arsenic, cadmium and lead? 17 here for drinking water where you list some 18 A. Yes. 18 additional cancers. Tell us why you provided 19 Q. So let's start with arsenic. Doctor 19 that. 20 Werntz includes monitoring in his medical 20 A. There are a number of areas around the 21 monitoring program for, I think, four different 21 world that have very high arsenic levels in their 22 types of cancer that he says are -- are at issue 22 drinking water. Taiwan, particularly the 23 here. He talks about lung cancer, he talks about 23 southwest coast of Taiwan, Chile, and Bangladesh, 24 bladder and kidney and skin cancer. 24 and these -- they have large populations who have Page 4249 Page 4251 1 Have you considered whether there is a 1 drunk highly contaminated water for decades. 2 significant increased risk of those four cancers 2 There have been an extensive number of 3 as a result of the exposure that we have in this 3 studies of cancer risks in Taiwan where people 4 class area to arsenic? 4 have drunk arsenic-contaminated water from wells. 5 A. I have. And we should look at the 5 And those studies show very clearly that people 6 evidence. 6 are at increased risk of lung cancer, bladder and 7 Q. What does the scientific literature say, 7 kidney cancer, and skin cancer. 8 in general, about whether arsenic causes cancer or 8 And the evidence from Chile also shows 9 under what circumstances it causes cancer? 9 the same patterns. So I think there's no argument 10 A. Well, it's very clear that arsenic causes 10 that drinking water contaminated with arsenic at 11 lung cancer when you inhale it, and that evidence 11 high levels is associated with increased risk of 12 comes from people who are in industrial operations 12 those four types of cancer: Lung, bladder, kidney 13 where there's arsenic exposure. So there's no 13 and skin. 14 argument about that. 14 Q. Now, in your chart, you indicate that 15 If you worked in arsenic smelting, 15 lung cancer is associated with exposure to arsenic 16 arsenic refining and there's high level of 16 when you have inhalation and occupational 17 exposure to arsenic by inhalation, it's associated 17 exposures. What does that mean? 18 with an increased risk of lung cancer, and in 18 A. It means that the -- the evidence that 19 fact, that is much of the evidence upon which our 19 inhalation of arsenic causes lung cancer really 20 assessment that arsenic is a carcinogen is based. 20 comes from occupational studies. It doesn't come 21 It comes from the occupational studies. 21 from environmental studies. In fact, there have 22 Okay. So inhalation of arsenic, particularly in 22 been a lot of environmental studies that have 23 occupational settings where the exposures are 23 looked at that, and they have not given any clear 24 high, is linked to increased risk of lung cancer. 24 indication of increased risk. 16 (Pages 4248 to 4251) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4252 Page 4254 1 And I'd like to review those. You know, 1 did you include the studies that Doctor Werntz 2 some are positive, and some are negative as well. 2 relied on? 3 Q. And one last question on this side, and 3 A. Yes. 4 then we'll go to those studies. When you indicate 4 Q. And did you include some additional 5 that drinking water is a -- arsenic is associated 5 studies that you found through your own research? 6 with these cancers when there's exposure in 6 A. Yes. 7 drinking water, as the high levels that you 7 Q. Let's walk through this. And tell us 8 indicate there, has there been any indication in 8 what the studies show about whether exposure to 9 this case that there are levels or exposures of 9 arsenic in the environment like you would get 10 that type? 10 living around a smelter, whether that puts you at 11 A. No. The studies in Taiwan involve 11 an increased risk of lung cancer, if you could 12 populations where the drinking water levels are -- 12 walk us through. 13 the majority of the wells are over 300 micrograms 13 A. Sure, yeah. So I've listed across the 14 per liter, and the levels are 300, 600, 800 and 14 top the name of the study. I should probably get 15 above. 15 them out. Hold on a second. 16 From the evidence I've seen in this case, 16 Okay. So there's a lot of literature. 17 the highest value found in any reading in any well 17 Okay. So I've listed the author, so the first one 18 here was 80. And it's my understanding that the 18 is by Brown published in 1984, and then a brief 19 population's been on municipal water since 1964, 19 description of the population that was studied, 20 so even though there was a single well reading at 20 and so you can see in the Brown study, this is a 21 80, that the class area hasn't drunk that type of 21 study of men whose usual residence was near a zinc 22 water at all - or rarely - and even that is well 22 smelter, and then I've got the relative risk, and 23 below the levels in Taiwan that are known to put 23 in parentheses, the confidence interval. 24 people at risk of these cancers. 24 And you can see in the Brown study, the Page 4253 Page 4255 1 Q. Have you read Doctor Brown's analysis? 2 A. I have. 3 Q. Have you read Doctor Werntz's analysis? 4 A. I have. 5 Q. Did either of those experts identify 6 drinking water like the drinking water in Taiwan 7 or Bangladesh or these other areas as a source of 8 exposure to people in the class area? 9 A. No. 10 Q. So you said you wanted to talk about the 11 studies. Have you considered the studies that 12 exist on -- on whether living near a smelter or an 13 industrial site like that, whether that can 14 increase your risk of lung cancer? 15 A. I have. 16 Q. And does this slide include the studies 17 that you looked at? 18 A. It includes some of them. There are more 19 that I have reviewed in addition. There would be 20 a few more slides of those. But I think these 21 give the picture. And this slide includes the one 22 that Doctor Werntz considered, and others that he 23 didn't consider. 24 Q. So in your summary slide you've provided, 1 relative risk was 1.6, so it was -- it was above 2 1, slightly, and you can see that the confidence 3 interval included 1, went from .8 to 3.4. So 4 that's not a statistically significant finding. 5 I want to point out that the authors of 6 the Brown study calculated a 90 percent confidence 7 interval, which is a little narrower than the one 8 we usually calculate, which is 95. So I 9 recalculated the confidence interval, and it's a 10 little bit wider. Doesn't change the answer. 11 So Brown found the positive association. 12 But it was reasonably compatible with there being 13 no real association, that is, 1.0, and that the 14 results may be due to chance. Okay. 15 Q. Let me just ask you, based upon the Brown 16 study, could you conclude that people who lived in 17 the area of a zinc smelter and had exposures like 18 the exposures we're talking about here in this 19 case, could you conclude that they had -- were at 20 a significantly increased risk of lung cancer? 21 A. No, you would not conclude that. They do 22 not have significantly increased risk. They have 23 nonsignificantly increased risk. In other words, 24 it's possible that this is just chance. 17 (Pages 4252 to 4255) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4256 Page 4258 1 Q. What's the next study you looked at that 1 A. Well, that's a clear statement it does 2 you summarized in your table? 2 not. It's -- you've got the rate that you would 3 A. The next one is Pershagen, 1985, and that 3 expect among the rest of the state that's not 4 study was updated recently and published again in 4 exposed. 5 2003. 5 Q. Now, the next study you have listed here 6 Q. What does it mean to update a study? 6 is the Tokudome study. Is that one of the studies 7 A. Well, they had followed that population 7 that Doctor Werntz relied upon in support of his 8 for more years, all right? So 18 years later, 8 conclusion that there was a risk here? 9 we've got an update where they followed the 9 A. Yes. 10 population. Remember I said in cohort studies, it 10 Q. Tell us about the Tokudome study. 11 takes decades. So you've got a lot more evidence 11 A. Well, the Tokudome study was a study of 12 - 18 more years - and much more data to work with 12 workers in a copper smelter. This is not a study 13 to try and measure the cancer rates. 13 of people who lived near a smelter; it's a study 14 Okay. So in the original Pershagen study 14 of the workers. 15 -- these are two parishes near a copper, lead and 15 Q. Why is that an important distinction? 16 zinc smelter in Sweden, and the original report 16 A. This is really important because these 17 said it was a two-fold relative risk, and it was 17 are highly-exposed people who worked in and around 18 statistically significant in men; the confidence 18 it. 19 interval goes from 1.2 to 3.4. 19 Q. Not the people who lived around it. 20 But the update that came out just four 20 A. This was not a study of people who lived 21 years ago gives the results now for men and for 21 in the vicinity of a smelter, no. 22 women, and they've come down. So in men, it's 22 Q. Was there anything about the Tokudome 23 1.38 and it's no longer significant, confidence 23 study that you could look at and draw at least 24 interval goes from .89 to 2.14, and in women, 24 some conclusions about whether people living Page 4257 Page 4259 1 there's a negative association. It's .88. It's 1 around a smelter are at increased risk of lung 2 not significantly negative. 2 cancer? 3 So the point here is that it's a little 3 A. Well, I want to be cautious about making 4 higher in men, a little lower in women, but on 4 leaps of faith. Let's talk exactly what the 5 balance, it's pretty close to 1.0. In other 5 Tokudome study says. In the workers in the 6 words, it doesn't appear in the Pershagen study, 6 smelter, the refinery workers, there was an 11.89 7 as updated recently, that there's evidence of 7 or almost 12-fold risk. They didn't give the 8 increased risk of lung cancer among people who 8 confidence interval. 9 lived near a smelter. 9 This is an old study. It goes back 30 10 Q. What is the next study you looked at? 10 years, 1976. But they did calculate a "P" value, 11 A. The Bartlesville, Oklahoma study. This 11 and they said this is statistically significant 12 was one done by ATSDR. It's part of the Centers 12 with a "P" value of less than .01. Okay, so 13 for Disease Control. This is residents near a 13 12-fold risk in the workers. 14 zinc smelter. They didn't give the relative risk, 14 They also included clerical workers who 15 at least the numbers aren't in the report. 15 worked in the smelter -- not out in the smelting 16 But they did say the occurrence of lung 16 operation, but in offices on the site. Those 17 cancer was as expected from the state rates. So 17 people were at no significantly increased risk, so 18 what they're doing is, they're making a comparison 18 the relative risk was 1.75 and it was not 19 of the rates in the Bartlesville population to the 19 statistically significant. 20 rates in the rest of the state. They said, "It's 20 Q. So can you extrapolate out to the 21 the same; it's as expected." 21 community around the smelter? 22 Q. What does that tell you about whether 22 A. No, you cannot. 23 living near a zinc smelter puts you at a 23 But what it does say is that even among 24 significantly increased risk of lung cancer? 24 the workers on-site who were in office settings, 18 (Pages 4256 to 4259) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4260 Page 4262 1 there was no significantly increased risk, and it 1 at more? 2 suggests that the risk comes from being out in the 2 A. I looked at quite a few more in addition. 3 plant under heavy exposures. 3 Q. Did you look at all the studies that 4 Q. Doctor Werntz relied upon that study to 4 Doctor Werntz relied upon? 5 support his conclusion that there was a risk of 5 A. I certainly did. 6 lung cancer here. Do you have an opinion whether 6 Q. And based on your review of the studies 7 you can draw that conclusion from the Tokudome 7 that Doctor Werntz relied upon and the wider body 8 study? 8 of scientific knowledge, do you have an opinion as 9 A. I don't think that's fair. This is not a 9 to whether the people in the class area are at a 10 study of people who live near a smelter. It's not 10 significantly increased risk of lung cancer as a 11 fair to draw that conclusion. It's not what the 11 result of arsenic exposure? 12 study says. 12 A. Well, they're just not. The scientific 13 Q. What's the next study you looked at? 13 evidence would not support that conclusion. 14 A. Okay. Frost looked at females who lived 14 Q. Now, in your slide you showed us before, 15 within three miles of a copper smelter and arsenic 15 you talked about the pathways for arsenic, and 16 refinery, found a relative risk of.82, so lightly 16 bladder cancer, skin cancer and kidney cancer. 17 less than 1. Confidence interval included 1, so 17 Are those three cancers that Doctor Werntz 18 not significantly different than 1. That study 18 mentions in his report and about which he 19 basically says there's no association. 19 concludes there's a significant risk here? 20 Q. And what about the Hinwood study you 20 A. Yes. 21 reviewed? 21 Q. Did you look at the studies on those? 22 A. Okay, Hinwood is a study from Australia 22 A. I did. 23 where they looked at areas that had high surface 23 Q. And is this the slide you prepared to 24 soil or drinking water arsenic concentrations. 24 summarize what the studies say about whether Page 4261 Page 4263 1 Some of those came from mine tailings from mining 1 people who live near a smelter are at a 2 operations; some were naturally occurring, and the 2 significantly increased risk of kidney cancer, 3 Hinwood study found a relative risk of 1.0. 3 bladder cancer and skin cancer? 4 Q. So what does -- 4 A. Yes. 5 A. Exactly on the "no association" mark. 5 Q. Can you walk us through your analysis of 6 Q. What does that tell you about our 6 that question? 7 situation here? 7 A. Yeah. The -- these studies, which are a 8 A. To the extent that it's applicable, it 8 subset of the ones on the previous slide, were 9 talks about contaminated water, contaminated soil 9 studies in which the authors gathered information 10 not conferring any risk of lung cancer to people 10 on other cancers. In most cases, they didn't 11 who lived in those contaminated areas. 11 report the results. 12 Q. What's the last study included on your 12 Q. What does that mean -- first let me just 13 slide? 13 ask: As we did with lung cancer, are you talking 14 A. The Murray -- the Murray, Utah study, 14 about studies that are relevant to the question of 15 also done by ATSDR. This was a study of residents 15 whether people living near a smelter are at risk 16 near a lead smelter. They didn't give the 16 of these cancers? 17 relative risk, but they did conclude that they 17 A. Yeah. That -- yes. This isn't -- this 18 considered the Murray smelter site to be no 18 is an assembly of the evidence that tries to 19 apparent public health hazard. They did not feel 19 answer that question. 20 there was any reason to consider this a hazard. 20 Q. And when those studies say that the 21 Q. Now, on the question of whether the 21 cancers are not reported, what does that tell you 22 exposure to arsenic in the class area puts people 22 as an epidemiologist? 23 at a significantly increased risk of lung cancer, 23 A. Okay. Well, let's -- let's just go back 24 did you review just these studies, or do you look 24 one step. When you do a cohort study, you have a 19 (Pages 4260 to 4263) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4264 Page 4266 1 population of people and you follow them over time 1 excess; in fact, it's evidence of a deficit, a 2 and you get their medical records together or 2 negative association for skin cancer. 3 their death certificates together, you get all of 3 Q. So have you considered studies that 4 their records on every cause of death, and so it's 4 Doctor Werntz relied upon in reaching his 5 routine that you get lung cancer, kidney, bladder, 5 conclusion that there was a risk of bladder, 6 skin, pancreas, prostate, brain, you know, every 6 kidney and skin cancer here? 7 type of cancer, diabetes and lung disease and 7 A. I certainly have. Many of these are the 8 heart disease, you name it. That's how you do a 8 studies that Doctor Werntz used. 9 cohort study. 9 Q. And have you considered additional 10 Okay. So some of these were cohort 10 studies you found through your own research? 11 studies. They had the data for particularly 11 A. I have indeed, yes. 12 kidney cancer and bladder cancer. Now, they 12 Q. And what is your conclusion as to whether 13 typically don't have skin cancer, okay, because 13 the people living in the area of the smelter are 14 skin cancer is rarely fatal and it doesn't come up 14 at a significantly increased risk of bladder 15 in tumor registries or death certificates. 15 cancer, kidney cancer or skin cancer? 16 But for bladder and kidney, they had the 16 A. Well, there's not scientific evidence 17 data. Okay, for Bartlesville, the first one, they 17 that would support that conclusion. It's that 18 didn't report the results, but they did say the 18 simple. 19 occurrence of kidney cancer was as expected from 19 Q. So the next element that Doctor Werntz 20 the state rates. So there was no excess of kidney 20 looked at - we've talked about arsenic - he looked 21 cancer. 21 at cadmium. What does the scientific evidence say 22 They did not report -- they didn't say 22 about whether cadmium causes cancer and under what 23 anything about bladder cancer, but they clearly 23 circumstances? 24 had the data. Okay. 24 MR. GALLAGHER: Your Honor, if -- I'm Page 4265 Page 4267 1 Tokudome had the data, didn't report the 1 starting a new topic, so if you want to take a 2 results for any other cancer sites. 2 mid-morning break, now would work, or we can -- 3 Hinwood, the Australian study, did report 3 THE COURT: Why don't you do that. Do 4 the risks for bladder cancer and kidney cancer and 4 you want the witness to answer your question, and 5 you can see that there's a slight negative 5 then we'll take our break? If he recalls the 6 association for bladder and a slight positive 6 question. 7 association for kidney. Neither of them is 7 MR. GALLAGHER: I'll ask it again and so 8 significant. Confidence interval would include 1. 8 -- 9 The Murray, Utah study did not report any 9 THE COURT: Okay. 10 other cancers, but they concluded that the site 10 Q. What does the scientific evidence -- what 11 was not an apparent public health hazard. If 11 does the literature say about cadmium and whether 12 there had been an excess of cancer, I doubt that 12 it causes cancer and under what circumstances? 13 they would have concluded there's no public health 13 A. Well, IARC has classified cadmium as a 14 hazard. 14 human carcinogen, and it is associated with lung 15 And then the last one is Wong. That's a 15 cancer under circumstances of occupational 16 study that I haven't presented before. That's 16 inhalation exposure. So if you inhale cadmium 17 actually a study of skin cancer, and that's among 17 dust or fume in sufficient quantities, there is an 18 residents near the Anaconda copper smelter and 18 increased risk of lung cancer. 19 Anaconda mine where Doctor Wong did not give the 19 Now, some of the agencies disagree. They 20 odds ratios; he simply presented the skin cancer 20 put IARC -- or they put cadmium in the next 21 incidence rates and showed that they were 21 category down, "probably carcinogenic," by IARC 22 significantly lower around the copper smelter than 22 says it's a human carcinogen, and I would agree 23 in nonexposed counties in the same state. 23 with that. The evidence is sufficient -- 24 So again, that's not evidence of an 24 Q. Is -- 20 (Pages 4264 to 4267) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4268 Page 4270 1 A. -- lung cancer by inhalation. 1 and he can discuss the ATSDR study which has been 2 Q. Is cadmium in the literature, including 2 talked about a lot. I think that Doctor Werntz 3 the IARC, is cadmium associated with any other 3 yesterday opened the door to further discussion 4 cancers through any other route of exposure? 4 beyond the ATSDR study when he testified in 5 A. The simple answer is no. Cadmium is a 5 response to questioning that -- the question was, 6 metal that's been investigated extensively since I 6 "If you took blood lead tests of people who lived 7 was in Public Health School -- before I was in 7 in the class area in light of ongoing exposure," 8 Public Health School in the late '70s. There was 8 so talking about today, "would their blood lead 9 an initial report that it was associated with 9 test be elevated," and he answered "Yes," which is 10 prostate cancer, and a lot of people tried to 10 the question, and he volunteered, "Yes, that was 11 investigate that. It didn't bear out. 11 what was found," the suggestion being -- 12 I know Doctor Werntz claims it was 12 MR. BARR: Could you keep that open? 13 associated with kidney cancer. That doesn't bear 13 THE COURT: Didn't he also -- and then he 14 out. The only one that bears out is the lung 14 went on to talk about the ASTR -- whatever the 15 cancer association. 15 acronym is 16 Q. Why don't we come back to that topic and 16 MR. BARR: ATSDR. 17 the evidence about the risk around this smelter 17 THE COURT: Thank you. 18 after our break. 18 -- and that, so -- 19 A. Okay. 19 MR. GALLAGHER: He did, but that was with 20 THE COURT: Ladies and gentlemen of the 20 respect to 1996. And the question where he 21 jury, why don't you go with your bailiff about ten 21 volunteered, "That was what was found" was the 22 or fifteen minutes, then we'll call for the 22 question that was about "ongoing today." 23 continuation of the testimony. 23 So the suggestion I think he left with 24 (The jury exited the courtroom.) 24 the jury was that there are tests out there that Page 4269 Page 4271 1 THE COURT: Counsel, why don't we take 1 they haven't heard about. 2 about ten minutes, please. 2 THE COURT: Now, it's -- I mean, he was 3 (A recess was taken after which the 3 talking about the ATSDR study, so let me -- and I 4 proceedings continued as follows:) 4 appreciate you raising it in this manner, so -- 5 MR. BARR: Your Honor, may we approach 5 MR. GALLAGHER: Okay. 6 real quick? 6 THE COURT: -- that's the exact way to do 7 THE COURT: Yes, please. 7 it to keep from getting crabbed at by the judge. 8 (Counsel approached the bench and the 8 I remember those days. So let me ask -- and if 9 following proceedings were had out of the hearing 9 you need to woodshed the witness -- 10 of the audience:) 10 MR. GALLAGHER: He knows that there's a 11 MR. GALLAGHER: There's one issue I 11 ruling, your Honor, and he knows that he's not to 12 wanted to raise that may come up in the further 12 talk about it, and what I have prepared is a 13 examination of Doctor Garabrant. I understand 13 question of, "Is there any evidence?" 14 there's been a ruling on Lenora Perrine's blood 14 And his answer to that is, "No," he's not 15 lead level. 15 going to talk -- he's going to say, "I have not 16 One of the topics we're addressing is 16 seen any evidence of elevated blood levels," and 17 medical monitoring and whether there's sufficient 17 we can leave it at that, that and the ATSDR -- 18 evidence of significant exposure, and one of the 18 THE COURT: Okay, thank you. 19 things that he's going to talk about is that you 19 (Counsel returned to counsel table and 20 would see that in blood lead, you would see it if 20 the proceedings continued in the presence and 21 it were there, and I'm prepared to stop right 21 hearing of the audience as follows:) 22 there -- 22 THE COURT: Mr. Bailiff, you may return 23 THE COURT: Okay. 23 the jury to its box, please. 24 MR. GALLAGHER: -- but I think that -- 24 (The jury returned to the courtroom.) 21 (Pages 4268 to 4271) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4272 Page 4274 1 THE COURT: All 11 of our jurors again 1 Q. Now, with -- with arsenic, we went 2 being present before the Court and the parties and 2 through a list of studies, and you told us what 3 the respective counsel, you may continue your 3 the studies showed about whether living near a 4 examination, sir. 4 smelter puts you at an increased risk. Did you do 5 BY MR. GALLAGHER: 5 a similar analysis for cadmium and the risk of 6 Q. Before we took our break, Doctor, you 6 lung cancer? 7 were telling us now what the scientific literature 7 A. I did. 8 says about the risks of cancer and exposure to 8 Q. And is this the slide you prepared to 9 cadmium. Have you prepared a slide that -- like 9 summarize your review of the studies? 10 the one you did for arsenic that summarizes that 10 A. Yes. 11 body of knowledge? 11 Q. First let me ask you: What studies did 12 A. Yes. 12 you include in your review on cadmium? 13 Q. And is this the slide you prepared? 13 A. Okay. These are the same studies that I 14 A. Yes. 14 had on the slide of arsenic in lung cancer because 15 Q. If you could, tell us what you're 15 the smelter studies all included arsenic and 16 illustrating here. 16 cadmium exposure. So the fact of living near a 17 A. Okay. What the slide is showing is that 17 smelter relates to the issue of whether cadmium 18 cadmium is associated with lung cancer in settings 18 carries risk of lung cancer as well as it did for 19 where there is inhalation in occupational 19 the issue of whether arsenic causes -- puts you at 20 settings. Okay? So the evidence that cadmium is 20 increased risk of lung cancer, so it's the same 21 a carcinogen really comes from studies of workers 21 set of studies, and it's the same set of results 22 who have been heavily exposed in industry and they 22 that we have already discussed. 23 are at increased risk of lung cancer. 23 And it's the same conclusion that the 24 I'm not aware of any evidence that links 24 evidence in populations who have lived near Page 4273 Page 4275 1 cadmium to cancer via drinking water. I don't 1 smelters does not support a conclusion that they 2 believe that is an exposure pathway that carries 2 are at increased risk of lung cancer as a result 3 any risk of cancer. 3 of cadmium exposure. 4 You know, it should be mentioned that 4 Q. Same -- same studies, same conclusion as 5 cadmium is in the food supply, small amounts of it 5 you had with arsenic? 6 occur in fruits and vegetables and grains, and we 6 A. That's correct. 7 ingest cadmium in small amounts every day, and 7 Q. Now, Doctor Werntz also talks about 8 there's no evidence that that's a risk factor for 8 kidney cancer and the potential for -- the risk of 9 cancer. 9 kidney cancer here. Have you analyzed that 10 Q. Doctor Werntz offered the opinion that we 10 question by looking at the studies and the 11 should have medical monitoring for lung cancer and 11 scientific literature? 12 a variety of other cancers, I think kidney cancer 12 A. I have. 13 was one of them based on the exposure to cadmium 13 Q. Let's first talk about the studies you 14 in the class area. 14 looked at in particular. What did you look at 15 Do you have an opinion as to whether 15 with respect to studies about people living near 16 there is scientific evidence to support a finding 16 or exposed near smelters and the risk of kidney 17 that people who live in the class area are at 17 cancer? 18 significantly increased risk of any cancer due to 18 A. There are really only the three, and we 19 exposure to cadmium? 19 discussed them all previously: The Bartlesville, 20 A. Well, I do have an opinion, and I think 20 Oklahoma study of residents near a zinc smelter 21 that the materials I've just shown strongly 21 where they said the occurrence of kidney cancer 22 support an opinion that there's no reason to think 22 was as expected from the State rates, which is a 23 there's increased risk of cancer from cadmium 23 round-about way of saying "No increased risk." 24 exposure resulting from living near the smelter. 24 The Tokudome study which didn't report 22 (Pages 4272 to 4275) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4276 Page 4278 1 the results, and my comment earlier is worth 1 the hypothesis that cadmium is associated with 2 saying again, the fact that they didn't report it, 2 kidney cancer doesn't bare out. It's not. 3 it's reasonable -- it's reasonable to conclude 3 Q. Has this question of whether cadmium 4 that there wasn't any significant excess. 4 causes kidney cancer, has it been extensively 5 And then the Murray, Utah study by ATSDR, 5 studied by scientists looking for the causes of 6 residents near a lead smelter, ATSDR considered 6 cancer? 7 that smelter site to be no apparent public health 7 A. I believe that would be fair to say. 8 hazard. If there had been a significant excess of 8 Q. And in that entire body of scientific 9 kidney cancer, I think they would have said, and 9 knowledge -- including the IARC report and 10 they didn't. They said, "There's no apparent 10 everything else -- is there a scientific basis for 11 public health hazard." 11 concluding that people in the class area are at a 12 Q. Now, beyond the smelter studies, is there 12 significantly increased risk of kidney cancer as a 13 a body of scientific knowledge, studies that have 13 result of exposure to cadmium? 14 been done, to test the question of whether cadmium 14 A. No, there's not. There is not a 15 causes kidney cancer through an inhalation 15 scientific basis for that conclusion, and I don't 16 pathway? Whether you -- whether it's near a 16 think that's a valid conclusion. 17 smelter or in some other scenario, is there 17 Q. Now, earlier you showed us the summary of 18 literature on that? 18 the IARC monograph and the different 19 A. Oh, yeah. Yeah, there is literature on 19 classifications for substances and whether they're 20 cadmium and kidney cancer that has looked 20 carcinogens. You recall that? 21 carefully at that, and it is not supportive of the 21 A. Yes. 22 conclusion that cadmium causes kidney cancer. 22 Q. And you showed us some slides that show 23 Q. Did you prepare a slide to summarize your 23 that arsenic and cadmium can cause cancer in 24 review of that -- another body of literature 24 certain circumstances, right? Page 4277 Page 4279 1 beyond the smelter studies and what it has to say 1 A. Yes. 2 about whether cadmium causes kidney cancer? 2 Q. Are you saying that these substances -- 3 A. Yes. 3 that arsenic and cadmium -- that they don't cause 4 Q. And this is your slide? 4 cancer? 5 A. Yes, this is my slide. 5 A. No. No. 6 Q. Tell us what you found when you looked at 6 Q. To sum it up for us, what is your opinion 7 the body of literature on this question of whether 7 with respect to arsenic and cadmium, and 8 cadmium causes kidney cancer. 8 specifically the question of whether there is a 9 A. Yeah. The agencies that have reviewed 9 significantly increased risk of cancer as a result 10 the evidence of carcinogenicity of cadmium have 10 of exposure to arsenic or cadmium that you had in 11 not concluded that cadmium is associated with 11 this class area? 12 kidney cancer in humans. They haven't made that 12 A. Okay. Arsenic causes lung cancer by 13 conclusion. 13 inhalation in industrial settings. There is not 14 And there have been a good number of 14 evidence that arsenic puts people at increased 15 studies of cadmium exposure in industrial 15 risk of lung cancer from living near smelters. 16 settings, typically workers, battery workers 16 Arsenic causes lung, kidney, bladder and 17 exposed to cadmium, you know, nickel cadmium, 17 skin cancer when it's in your drinking water. I'm 18 NiCad batteries, lab workers exposed to cadmium, 18 not aware that drinking water is an issue in this 19 cadmium alloy workers in the metal industry, 19 case. It wasn't in Doctor Brown's report; it 20 cadmium pigment workers. 20 wasn't in Doctor Werntz's report; and I haven't 21 Cadmium pigments have been used 21 seen any evidence that there was drinking water 22 extensively in paints. They produce beautiful 22 contamination sufficient to have put anybody in 23 oranges and yellows and reds. And other cadmium- 23 increased risk. 24 exposed workers in a variety of industries, and 24 So I think the drinking water exposures 23 (Pages 4276 to 4279) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4280 Page 4282 1 are not -- there's no basis to say that that's a 1 present here. The compounds that may be present 2 risk factor. 2 here, I don't think there's even evidence in 3 Cadmium causes lung cancer by inhalation 3 animals to support it. 4 in industrial settings. I think that IARC has 4 Q. Yesterday Doctor Werntz, in his 5 that right, even though other agencies don't 5 testimony, talked about the IARC monograph on lead 6 agree, I think IARC has that right. 6 in Volume 23, and they put up on the screen this 7 There is not evidence that people who 7 quote from that monograph, and this quote says, 8 live downwind of smelter sites are at increased 8 "There is sufficient evidence that lead subacetate 9 risk of lung cancer if they inhaled or -- I should 9 is carcinogenic to mice and rats and that lead 10 say if there is cadmium exposure from those sites. 10 acetate and lead phosphate are carcinogenic to 11 There's just not evidence that they're at an 11 rats." 12 increased risk. 12 Just so it's clear, do you believe that 13 So -- and I guess lastly, cadmium is not 13 this is sufficient evidence from which to conclude 14 known to cause kidney cancer, as Doctor Werntz 14 that people in the class area are at a 15 believes. The science doesn't support that 15 significantly increased risk of any cancer as a 16 conclusion. 16 result of exposure to lead? 17 So when you add it all up, I don't think 17 A. No. 18 that there is a scientific foundation that in any 18 Q. And can you explain for us, using the 19 way supports a conclusion that there's increased 19 monograph, this quote that Doctor Werntz pointed 20 risk of those cancers as a result of living near 20 to, can you explain to us why not? 21 this site. 21 A. Well, you know, the first is, you know, 22 There's simply no basis for it. 22 lead acetate -- okay, vinegar is acidic acid, 23 Q. The last thing that Doctor Werntz said on 23 okay, and so lead acetate is the lead salt of 24 the subject of cancer was that exposure to lead 24 vinegar. Now, I don't think that lead acetate is Page 4281 Page 4283 1 puts you at an increased risk of cancer. What 1 present in the smelting environment. I can't 2 does the scientific literature say about lead and 2 imagine what it has to do with smelting. I was a 3 cancer? 3 chemical engineer in college, it doesn't make 4 A. We've already discussed that none of the 4 sense to me. 5 agencies rank lead as a human carcinogen. Most of 5 And the same thing with lead subacetate, 6 them rank it as a probable or possible carcinogen 6 it's another salt -- it's another lead salt of 7 based on animal evidence, recognizing that the 7 vinegar. It's not here. So the evidence that 8 human evidence is not adequate to say that this is 8 Doctor Werntz is relying on is about lead 9 a human carcinogen. 9 compounds that are not at issue here. 10 If you look a little more deeply into the 10 So that's -- so that's Issue No. 1. 11 animal evidence, the evidence that lead compounds 11 Issue No. 2, I don't dispute that those 12 cause cancer in animals -- and we're talking about 12 compounds are carcinogenic to rats or to mice, but 13 rodents, rats, mice -- is evidence derived from 13 it's still a leap of faith to say that they're 14 lead compounds like lead acetate, lead subacetate, 14 carcinogenic to humans, and as you can see in this 15 lead phosphate. 15 quote, IARC does not make that leap of faith. 16 It's not -- there is not evidence that 16 It says, "In the absence of adequate 17 compounds like lead oxide, lead sulfide, lead 17 human data, it's reasonable for practical purposes 18 sulphate cause cancer even in animals. And those 18 to regard these compounds as if they presented a 19 compounds, lead acetate, lead subacetate, lead 19 carcinogenic risk to humans." 20 phosphate, I don't even think are in issue in this 20 What that means is, "We don't have 21 case, I don't think that they would be present in 21 evidence, but in order to be protective of humans, 22 a smelter. 22 we'll assume that the evidence -- that these could 23 So lead may cause cancer in animals, but 23 be humans carcinogens." That's a reasonable 24 it involves lead compounds that really aren't 24 decision to make, but it's not evidence that they 24 (Pages 4280 to 4283) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4284 Page 4286 1 cause cancer. 1 evaluating Doctor Werntz's opinion that lead 2 I think the most important point here is 2 causes cancer in humans? 3 that these are not -- these are not compounds that 3 A. Yes. 4 would be present in a smelting environment. This 4 Q. And what is this report? 5 is not what's going on. 5 A. Okay. Kyle Steenland, I know Doctor 6 Q. So the first point we made, the materials 6 Steenland, he's on the faculty at Emory now. He 7 that are being talked about here are forms of lead 7 used to be at NIOSH. He's a statistician, and 8 that are not at issue in this case? 8 Paolo Boffetta is a physician. He's in charge of 9 A. As far as I understand. 9 the environmental epidemiology unit at IARC in 10 Q. And the second point would be that what 10 France, and a very talented scientist, they both 11 this monograph shows is that those materials that 11 are. 12 aren't at issue in this case cause cancer to mice 12 They tried to summarize -- or did 13 and rats, right? 13 summarize -- the epidemiologic evidence regarding 14 A. Right. 14 lead and cancer in humans, and this was published 15 Q. And is there any basis for extrapolating 15 in the American Journal of Industrial Medicine in 16 from that to a conclusion that people who live in 16 2000. 17 this class area near the smelter are at a 17 So it's seven years old. The IARC 18 substantially or significantly increased risk of 18 publication is newer and seeks to do roughly the 19 any kind of cancer? 19 same thing. But yeah, this is a well-written 20 A. No. That's not a reasonable conclusion 20 summary of the evidence, in my opinion. 21 from this -- from this scientific evidence. 21 Q. And what was their conclusion about 22 Q. Now, have people studied -- not rats and 22 whether there is a risk of cancer in humans from 23 mice, but have people looked at whether there is 23 exposure to lead? 24 human evidence that exposure to lead causes 24 A. Well, I don't know if you can blow it up, Page 4285 Page 4287 1 cancer? 1 but their conclusion is right on the screen. 2 A. Oh, yeah, there's a big body of 2 THE WITNESS: Actually, stay on the first 3 literature on that. 3 page, if you would. 4 Q. And has -- has anybody made an effort to 4 A. Can you make that larger? 5 go through that body of literature on the human 5 Q. Sure. Where do you want -- 6 evidence and summarize it and say, "Is this 6 A. Where it says "Conclusion." Right down 7 something that causes cancer" or "Is it not?" 7 -- right there. Yeah, that's it. Okay. So their 8 A. Well, yes. First off, IARC has done 8 conclusion is: "Overall, there is only weak 9 that. There's a whole book. That's what this 9 evidence associating lead with cancer; the most 10 book is about that just came out earlier this 10 likely candidates are lung cancer, stomach cancer 11 year. It's exactly aimed at that, and IARC's 11 and gliomas." Gliomas are brain tumors. 12 conclusion was "Evidence is not adequate in 12 Okay, so it's not that there's no 13 humans, we're not going to put it in Category 1, 13 evidence, but it's weak evidence. 14 the evidence is adequate in animals, and it's 14 Okay. And then if we could go to their 15 based on exactly what's on the slide here, and 15 conclusion at the end of the paper, right there, 16 we're going to put it in Category 2A." 16 maybe you could blow that up. 17 So the evidence in humans is not 17 Okay. And so here -- here's how they 18 adequate. 18 conclude their paper: "Despite the fact that lead 19 Q. Have you looked at the literature, 19 is one of the earliest recognized occupational 20 including a study by -- report by a gentleman 20 toxins," and you know, lead's been around for 21 named Kyle Steenland and Paolo Boffetta called 21 thousands of years, abdomen and we know a 22 "Lead and Cancer in Humans, Where Are We Now?" 22 tremendous amount about its toxicity. 23 A. Yes. 23 "There exists relative few studies of 24 Q. Is this one of the things you read in 24 cancer among lead-exposed workers with well- 25 (Pages 4284 to 4287) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4288 Page 4290 1 documented high exposures." And of course, these 1 says, "Oh, lead would lead to an increased risk of 2 are the most informative studies for identifying 2 cancer." 3 lead causes cancer. 3 It's the studies that we've discussed. 4 They identify eight principal studies 4 It's not clear that there's increased risk to 5 with well-documented high exposures. "The 5 cancer no matter what the exposures are, whether 6 evidence is suggestive of an association with lung 6 it's arsenic or lead or cadmium or combinations of 7 cancer and stomach cancer but remains limited." 7 the three. 8 One of the problems is "a possible confounding by 8 And some of those studies were lead 9 arsenic is a concern." 9 smelter operations. 10 In other words -- we talked about 10 Q. So we talked about cancer risks, and now 11 confounding -- it's possible that the associations 11 I -- what I'd like to do is switch gears and talk 12 that are observed between lead and cancer are 12 about risks of maladies and things other than 13 really due to arsenic that hasn't been properly 13 cancer, and my first question for you on that is: 14 controlled for in the analysis. 14 Did you read Doctor Werntz's expert report, the 15 So they're saying possible confounding 15 report where he laid out the medical monitoring 16 by arsenic is a concern, in the study that the 16 program that he thought was appropriate here and 17 highest lung cancer, relative risk. There's 17 the risks, the noncancer risks, that he thought 18 weaker evidence of an association of kidney cancer 18 were -- he thought was an issue? 19 and the gliomas, the brain tumors. Most of the 19 A. Yes. 20 studies did not have data on dose-response that 20 Q. And did you notice in his report that in 21 would provide a better basis for inference than 21 his report, where he was talking about what 22 comparisons of exposed to non exposed people. 22 medical monitoring there should be here, that he 23 One of things that I haven't discussed is 23 talked about the decreased renal function and lead 24 when you have a carcinogen, you expect to see that 24 poisoning as the two main issues? Page 4289 Page 4291 1 as exposure increases, the risk of cancer 1 A. I think that's a fair summary. 2 increases. That's called dose response, all 2 Q. Now, yesterday Doctor Werntz talked about 3 right? So people with low exposure, low risk; 3 a whole lot of things that -- that might come up 4 people with more exposure, higher risk; people 4 with cadmium or arsenic, things like Raynaud's 5 with very high exposure, higher risks even. 5 disease and black foot disease. Are you prepared 6 We look for those responses in the 6 to talk about the things that Doctor Werntz 7 studies, it's not there for lead. 7 identified as the reason for having medical 8 So -- not to read the whole thing, the 8 monitoring in this case? 9 bottom line is, when you come down, their final 9 A. Yes. 10 conclusion is, there's only weak evidence and it 10 Q. So let me ask you, as a doctor, 11 is not clear that lead is a human carcinogen. 11 considering whether there's a significant 12 That, I think, was a fair assessment in 12 increased risk of kidney -- renal failure or lead 13 19 -- in 2000, and I think that's a fair 13 poisoning, what's the first thing you would want 14 assessment today. 14 to see in your analysis? What would you -- what 15 Q. And did you -- did you review the studies 15 would you look for first? 16 about exposure in the area of smelters, the ones 16 A. I'd want to look right away at whether 17 we talked about earlier, for arsenic and cadmium, 17 these people had elevated blood lead levels, 18 and did you see in those any evidence that people 18 elevated blood cadmium levels, elevated excretion 19 who live near a smelter are at risk of cancer or 19 of cadmium and arsenic. I mean, that's the best 20 -- any kind of cancer because of lead? 20 index of whether people have been overexposed. 21 A. Well, it's -- it's the same set of 21 And it's the best way of starting to 22 studies we've already discussed, and we've looked 22 determine whether in fact they're likely to have 23 at the cancer risks, and the direct answer to your 23 had any damage or whether they're at any risk of 24 question is, no, there's nothing in them that 24 damage. 26 (Pages 4288 to 4291) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4292 Page 4294 1 Q. Before we get to that topic, let me ask 1 and say, "Well, that applies to these other 2 you: In your teaching, do you teach risk 2 things" that Doctor Werntz has talked about. 3 assessment? 3 Q. You mentioned a couple concepts that I'd 4 A. Yes, I do. 4 like to have you explain for us a little in 5 Q. And are you familiar with the concept of 5 detail. The first was you mentioned dose. Is 6 a risk assessment for determining whether people 6 there a difference between the exposure you have 7 are at a significantly increased risk of disease? 7 in your environment, what might be in your soil or 8 A. Yeah, sure. 8 in your dust, and the dose that you get in your 9 Q. When it came to the cancer risks, did 9 body? 10 Doctor Werntz rely on somebody to perform a risk 10 A. Yes. 11 assessment for him? 11 Q. What is the difference between those two 12 A. Doctor Brown did a risk assessment for 12 things? 13 cancer risks. 13 A. That's an important concept. We 14 Q. When it comes to the noncancer risks, 14 typically think of exposure as the concentration 15 things other than cancer, like the Raynaud's 15 of things outside of our body, so the 16 disease and black foot disease that he mentioned 16 concentrations of arsenic in air, the 17 yesterday, can you do a similar risk assessment 17 concentration of cadmium in water, in other words, 18 for those things? 18 the things in the environment around us, that's 19 A. You certainly can. 19 exposure. 20 Q. Did Doctor Brown do a risk assessment for 20 Dose refers to the amount in your body, 21 those things? 21 and the concept is, it has to have crossed the 22 A. No. 22 barrier between me and the outside world, whether 23 Q. Did Doctor Werntz? 23 that barrier is the skin or the lining of my 24 A. No. 24 respiratory tract or the lining of my GI tract. Page 4293 Page 4295 1 Q. Now, would it be appropriate, as a 1 It has to cross the barrier to become dose. 2 scientist or a doctor, to take a risk assessment 2 And we measure dose routinely by 3 for cancer and draw conclusions about whether 3 measuring blood levels, measured blood leads, 4 there was a risk of noncancer diseases like renal 4 blood cadmium or blood arsenic, or by measuring 5 failure? 5 how much we excrete, so you can measure urinary 6 A. No, you can't do that. 6 cadmium or arsenic. Sometimes we measure dose in 7 Q. Why -- why can't you do it that way? 7 the tissues, so you can actually measure -- for 8 A. Well, the calculation of risks has to do 8 example, the lead -- you can measure lead in bone. 9 with some very specific data on what the risks 9 Okay, you can actually use a technique 10 are, and the risks for cancer are typically 10 that shines a beam of neutrons through bone and 11 calculated using cancer slope factors, whereas 11 measure how much lead is in the bone. Those are 12 these other things have different mechan -- these 12 measures of dose, because they relate to what's in 13 other health effects have different mechanisms and 13 your body, not what's in the outside world. 14 they typically involve calculations based on ideas 14 And as a physician, we routinely measure 15 that there is a threshold or a dose above which 15 internal dose of chemicals. That's part of what 16 you get damage and below which you don't get 16 we're trained to do. 17 damage. 17 Q. Now, the other concept you mentioned was 18 So it's one of the principles in risk 18 the concept of a threshold, and when you talk 19 assessment foremost noncarcinogens that you have 19 about things like the risk of renal failure due to 20 to identify a no-observed adverse effect level, 20 exposure to arsenic and cadmium or -- is there 21 and that exposures below that don't have any 21 some threshold below which the exposure, the dose, 22 adverse effects. Exposures above, then you 22 is not an issue, and above which you start to see 23 calculate the risk. And that wasn't done here. 23 problems? 24 You can't take a cancer risk assessment 24 A. Yeah. For example, for cadmium, there's 27 (Pages 4292 to 4295) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4296 Page 4298 1 a very solid and substantial body of literature 1 A couple of others are called 2 that establishes that there are concentrations of 2 retinol-binding protein, and the third is 3 cadmium in the kidney above which you start to see 3 N-acetylglucosamine, so RBP and NAG and Beta-2 4 damage and below which you do not, and that those 4 microglobulin. It would be very easy to look for 5 correlate with levels of cadmium in blood. 5 those proteins in the urine to establish whether 6 So there's clearly a threshold for kidney 6 anybody had evidence of early kidney dysfunction. 7 damage, and it's a good thing there is, because we 7 But the earliest signs of kidney damage 8 all get cadmium in our diet in very small amounts, 8 can be detected by looking for those proteins in 9 and it doesn't do any damage. And so the body is 9 the urine. 10 able to handle small amounts without any damage, 10 Q. Is that another way of saying that you 11 and if you get to a certain dose, then you can 11 could test and get evidence before drawing the 12 have damage. 12 conclusion that there was a significant increased 13 Q. Now, with respect to the noncancer risks 13 risk? 14 that Doctor Werntz identified, can you reach a 14 A. Well, it's not only that you can; you 15 conclusion about whether people are at a 15 should. 16 significantly increased risk of those things 16 Q. Based on the evidence -- well, let me ask 17 without knowing if you are at an exposure that 17 it this way: Have you seen any evidence in this 18 puts you above that threshold? 18 case of tests showing increased levels that 19 A. No, you -- you have to have some 19 approach the threshold and would put these people 20 scientific evidence that either there's exposure 20 in the class area at a significantly increased 21 adequate to put you at increased risk or there's 21 risk of decreased renal function or renal failure? 22 internal dose adequate to put you at increased 22 A. No, I've seen no evidence of blood 23 risk. And of the two, I'd strongly prefer the 23 cadmium, urinary cadmium or urinary excretion of 24 internal dose, because it's much closer to the 24 Beta-2 microglobulin or anything else. Page 4297 Page 4299 1 issue of whether the tissue has been damaged. 1 Q. Now, the other area in which Doctor 2 Q. Now, on the question of decreased renal 2 Werntz has proposed medical monitoring for 3 function and renal failure, one of the things that 3 noncancer risks is in the area of lead poisoning. 4 Doctor Werntz wants to monitor for here, have you 4 Do you have a conclusion -- an opinion whether 5 considered whether the plaintiffs, the class 5 people in the area, the class area, are at a 6 members, are at a significantly increased risk of 6 significantly increased risk of lead poisoning or 7 those things as a result of their living in the 7 effects from exposure to lead? 8 class area? 8 A. There's no evidence that they're at 9 A. Of -- of decreased renal function and 9 increased risk of lead poisoning, none at all. 10 renal failure? 10 And that's very easy to assess. 11 Q. Yes. 11 Q. Is this again an area where before 12 A. Well, there's no evidence that would 12 drawing the conclusion that there was a 13 support that conclusion. 13 significantly increased risk where you would want 14 Q. What kind of evidence would you need to 14 to see evidence in the form of testing of levels 15 see before you could reach that conclusion? 15 in the bodies? 16 A. Well, I -- I would want to see a blood 16 A. Yeah, sure, you'd do a blood lead test. 17 cadmium and a urine cadmium level, and ideally, 17 We do them routinely. 18 I'd want to see -- when cadmium damages the 18 Q. Doctor Werntz was asked yesterday, "You 19 kidney, it damages the part of the kidney that's 19 would expect, wouldn't you, if you took blood lead 20 responsible for concentrating the urine, and when 20 tests of people who lived in the class area and 21 those cells get damaged, low molecular weight 21 there was ongoing exposure that you say is 22 protein, small proteins, are excreted in the 22 happening, the blood leads would be elevated." 23 urine, and one of those is called Beta-2 23 And he said, "Yes, you'd expect to see 24 microglobulin. 24 that." Do you agree that if there were elevated 28 (Pages 4296 to 4299) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4300 Page 4302 1 levels of exposure in the class area, that you 1 opinions, and as we've seen for cadmium, IARC says 2 would see that in blood tests of people who lived 2 it's a carcinogen, and other agencies don't. 3 in the class area? 3 There is some range for disagreement. 4 A. Yes. 4 However, I think it's important to 5 Q. Have you seen any evidence in this case 5 realize that the disagreements are usually 6 that people who live in the class area have 6 relatively small, as to whether cadmium is 7 elevated blood lead levels? 7 Category 1 or a 2A, is -- is basically everybody 8 A. No, I have not. ATSDR did a study in 8 saying, "Well, there's some evidence, there's 9 1996 of children. They tested 25 children, and 9 reason to be concerned, but it doesn't meet the 10 the average blood lead levels were entirely 10 standard for proof in humans," and that's sort of 11 normal. And I think ATSDR's conclusion was there 11 the range of disagreement. 12 was no evidence of excessive lead exposure. 12 Q. Well, we're going to get into this in a 13 Q. So let me go back to the cancer risks and 13 little bit. You testify a lot in trial. That's 14 ask you, Doctor, based on your review of all the 14 fair to say, you're a fairly experienced 15 evidence, do you think the people living in the 15 professional witness, aren't you? 16 class area are at a significantly increased risk 16 A. I have testified in trials in the past. 17 of any cancer as a result of exposure to arsenic, 17 Q. And you understand that in a trial 18 cadmium or lead? 18 setting, it's very common for one expert to say 19 A. No. 19 one thing and another expert to say something 20 Q. And do you think the people living in the 20 totally different. 21 class area are at a significantly increased risk 21 A. I think that different people testify as 22 of any noncancer diseases as a result of their 22 to different opinions. 23 exposure to arsenic, cadmium or lead? 23 Q. And when a jury has to decide which one 24 A. You know, the answer is again no. But 24 is right, issues like credibility are very Page 4301 Page 4303 1 the real answer is that there's simply no basis 1 important, aren't they? 2 for drawing that conclusion. You know, and as a 2 A. Well, I think the key issue for 3 scientist, if you're going to draw a conclusion, 3 scientific testimony is whether testimony has a 4 you have to have something to base it on. 4 scientific foundation. 5 And that's simply not here. 5 Q. So things like the scientists' bias or 6 MR. GALLAGHER: Thank you, your Honor, I 6 possible outside influences could affect the 7 have nothing further. 7 weight a jury may give to that testimony, couldn't 8 THE COURT: Mr. -- Mr. Barr, you may 8 it? 9 inquire, if you'll fetch the microphone. 9 A. Well, I think the key issue is whether 10 Mr. Barr, you may inquire. And if you'll 10 there's scientific evidence that underlies the 11 be mindful of high noon, I'm sure the jury would 11 testimony. 12 appreciate it. 12 Q. Now, are you aware of any reason Doctor 13 MR. BARR: Thank you, your Honor, I'll 13 Werntz would come into this courtroom and mislead 14 try to be fairly quick with this first step. 14 this jury about what the scientific evidence shows 15 CROSS EXAMINATION 15 about arsenic, cadmium and lead? 16 BY MR. BARR: 16 A. I do not know Doctor Werntz, and I have 17 Q. Now, Doctor Garabrant, we've heard a lot 17 no knowledge about his background. 18 about your testimony and the opinions you have to 18 Q. So you're not aware of any reason he 19 offer in this case and your review of the 19 would come in and do that, are you? 20 scientific evidence. Would you agree with me that 20 A. Like I said, I don't know Doctor Werntz, 21 reasonable unbiased scientists can look at a body 21 I don't know anything about his background. 22 of evidence and come to different conclusions 22 Q. Well, you know he's a -- he's with -- 23 about what that evidence shows? 23 affiliated with West Virginia University, right? 24 A. You know, certainly there is a range of 24 Do you know that? 29 (Pages 4300 to 4303) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4304 Page 4306 1 A. I do know that. 2 Q. He's an actual practicing physician that 3 sees patients every day. You understand that, 4 don't you? 5 A. I am aware that he's on the faculty of 6 West Virginia as, I believe, an assistant 7 professor or assistant clinical professor. 8 Q. Okay. And again, you don't have any 9 reason to suspect that he would come in and 10 mislead this jury because of his background or 11 outside influences, do you? 12 A. Well, I've already said, I don't know 13 him, and I don't have any information on his 14 background. 15 Q. Okay. Well, let's talk a little bit 16 about your background, while we're talking about 17 backgrounds. Now, you already told me that you 18 testify a lot in trial. I mean, this is something 19 you very commonly do, isn't it? 20 A. I didn't say that. But I have testified 21 in trial, and I think courts need scientists to 22 explain complicated science so that it can be 23 understood. And yes, I do that. 24 Q. I'm going to put this up on the Elmo. If 1 Q. Okay. Well, hold on one second, since 2 you -- you don't, you know, necessarily believe me 3 on this -4 A. It's not that I don't believe you, it's 5 that I don't recall. 6 Q. If I show you your deposition testimony, 7 would that maybe refresh your recollection on it? 8 A. If I testified to it, it's true. 9 Q. Okay. So you don't -- you don't disagree 10 that if you testified in your deposition that was 11 taken in this case that you testified two to three 12 times a year in trial for the past ten years, you 13 don't disagree with that, do you? 14 A. If that's what my testimony is, yes, I 15 agree with it. 16 Q. Now, you've been testifying as an expert 17 what, since the mid 1980s? Is that fair? 18 A. No, I testified once in, I think it was, 19 1986, and to the best of my recollection, no, I 20 didn't testify in any consistent pattern in the 21 next few years. But certainly for the past ten 22 years, I have been asked to come into court to 23 explain epidemiology to juries. 24 Q. Okay. And we're going to talk about that Page 4305 Page 4307 1 you want a copy of this, I can bring it up to you, 2 but I think you'll be able to see it from there. 3 Can you read that, Doctor? 4 A. Yes. 5 Q. Or do you want your own copy? 6 A. No, I can read it. 7 Q. Okay. Now, this is a list that you 8 prepared of legal testimony you have presented 9 since 2002, is it not? 10 A. Yes. 11 Q. And there are, what -- how many cases, 12 you think, on here? 40 maybe? 40 some 13 depositions and trial testimony? 14 A. I don't know the number. I think it's -15 it shows that I testify either in deposition -16 well, I testify in deposition probably six times a 17 year, eight times a year, and I testify in trial 18 maybe twice a year for the past four years. 19 Q. Well, it's actually the past ten years 20 that you testified in trial two to three times a 21 year, isn't it? 22 A. I don't think I've been in trial twice a 23 year for ten years, but I testify typically two to 24 three times a year in trials. 1 first case you testified in in just a little bit. 2 But would you agree with me that legal testimony 3 or outside consulting away from your job -- legal 4 testimony comprises 50 percent of your income? 5 A. That's a reasonable estimate, yes. 6 Q. So 50 percent of the money you take home 7 every year is from testifying as an expert for 8 primarily defendants, isn't it? 9 A. I do work as an expert consultant in 10 litigation matters, and it does provide probably 11 half of my total income. 12 Q. And excluding Workers' Compensation 13 matters, you've testified that only once in your 14 career have you ever testified for a plaintiff. 15 A. Why would you exclude the Workers' 16 Compensation? I testified on behalf of plaintiffs 17 many times. 18 Q. In other than Workers' Compensation, have 19 you ever, in a trial setting, testified for a 20 plaintiff other than the one time that we're going 21 to discuss here today? 22 A. I've testified on behalf of plaintiffs in 23 Workers' Compensation many, many times, and on 24 behalf of defendants many times. If you want to 30 (Pages 4304 to 4307) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4308 Page 4310 1 break it down into Workers' Comp versus 1 look carefully at the evidence, and we undertook a 2 nonWorkers' Comp, I have testified on behalf of 2 series of research studies to see whether asbestos 3 defendants in nonWorkers' Comp almost exclusively. 3 exposure was associated with colorectal cancer, 4 Q. Well, except for one case. 4 and in fact, we published in 1992 a case control 5 A. That's correct. 5 study, very nicely done case control study, where 6 Q. Now, would it be fair to say that you've 6 we couldn't find an association between asbestos 7 testified before that you make $300,000 to 7 exposure and risk of colorectal cancer. 8 $350,000 a year as an expert witness? 8 That was published in the American Journal of 9 A. It would be fair to say that that has 9 Epidemiology. And then we followed that up with a 10 been my income for my consulting work related to 10 meta-analysis, a summary analysis like we've been 11 litigation, not always as an expert witness. 11 talking about that IARC does, looking at all of 12 Q. But it provides significant income to 12 the published literature on asbestos exposure and 13 you, doesn't it? 13 colorectal cancer in which, when you added the 14 A. Yes, it does. 14 studies up carefully, it really didn't bear out 15 Q. Now, you told the jury that you're board 15 that there was clear evidence of any increased 16 certified in, I believe it was, occupational and 16 risk. 17 environmental medicine and internal medicine; 17 Q. So when you testified in 1986, '87, that 18 isn't that right? 18 time frame -- is that about right? 19 A. Yes. 19 A. Somewhere in the mid '80s. 20 Q. Now, isn't it true, Doctor, that in your 20 Q. -- you testified that there was adequate 21 current practice, you see less than one patient 21 scientific evidence, and now you're saying you 22 per week? 22 were wrong, there wasn't adequate scientific 23 A. That would be correct. I spend most of 23 evidence? 24 my time now doing research. 24 A. At the time I testified, I believe the Page 4309 Page 4311 1 Q. Okay. So you aren't out there as a 1 evidence supported the conclusion that asbestos 2 clinician practicing medicine, treating people 2 was associated with increased risk of colorectal 3 primarily, are you? 3 cancer. After we did our own research and 4 A. Well, I do complex evaluations. I see 4 additional studies were published and we 5 people who are referred because they have very 5 summarized them, I felt that the scientific 6 complicated issues related to chemical exposures, 6 evidence had changed, and I published it. 7 and they take a lot of time. I typically spend 7 Q. And in 1986/'87, you were sworn under 8 two hours with a patient, and then I have to 8 oath to testify to the truth, weren't you? I 9 research the issue and write a report. 9 mean, that -- you -- you swore to tell the truth, 10 So I'll typically spend a half a day on a 10 didn't you? 11 patient. 11 A. I certainly was, and I did. 12 Q. Now, I want to talk to you a little bit 12 Q. But now you're saying when you testified 13 about the first case you were ever hired as an 13 that there was no -- that there was adequate 14 expert, the asbestos case. Do you remember that 14 scientific evidence, you just didn't know? And 15 case? 15 you testified to that anyway? I mean, I'm a 16 A. I do. 16 little confused as to what you're telling the 17 Q. That was a case about a gentleman who was 17 jury. 18 claiming he had colorectal cancer because of his 18 A. No, I did what good scientists do: I 19 exposure to asbestos, was it not? 19 based my opinions on evidence. The evidence in 20 A. I believe that's correct. 20 1986, I felt, was adequate to say it's a risk 21 Q. And you testified in that case that there 21 factor. Six years later -- especially after we 22 was adequate scientific evidence that the asbestos 22 had done what is now regarded as one of the best 23 fibers caused his colorectal cancer, didn't you? 23 studies on that issue -- I felt that the evidence 24 A. Yes, I did. And that case caused me to 24 was not adequate to support that conclusion. 31 (Pages 4308 to 4311) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4312 Page 4314 1 That's my whole point. Scientists base 1 pesticide, looking for effects of neurologic 2 their opinions on scientific evidence. When the 2 disease, looking at the workers who were quite 3 evidence changed, my opinion changed because the 3 heavily exposed, and we did not find evidence of 4 evidence had changed. 4 neurologic damage. We published four or five 5 Q. And let's talk about what else changed. 5 articles from that research study. 6 Then you started testifying for the defendants in 6 Q. And correct me if I'm -- that's what's 7 asbestos cases, didn't you? 7 commonly known as Dursban. 8 A. I was asked to work as an expert on 8 A. Dursban is one of the commercial labels 9 behalf of a number of defendants in the late 9 on it. 10 1980s. 10 Q. And the EPA has banned that product 11 Q. You've testified for a lot -- I mean, 11 because of neurotoxicity, haven't they? 12 let's go through kind of the list of defendants 12 A. They have restricted it from residential 13 you've testified -- you've served as an expert 13 use; it is still widely used in agriculture. 14 for. You've served as an expert for Ford Motor 14 Q. So the EPA disagreed with your study 15 Company, haven't you? 15 funded by Dow on a Dow product, that you know, 16 A. I have. 16 your study that it does cause neurotoxicity. 17 Q. General Motors? 17 A. No, EPA didn't disagree with our study. 18 A. I have. 18 Q. Well, they banned it, didn't they? 19 Q. Chrysler? 19 A. They restricted it so it wouldn't be used 20 A. I have. 20 in homes. It's still widely used in agriculture. 21 Q. Various different asbestos manufacturers. 21 Q. Let's talk about some others. You've 22 A. Only on the issue of colon cancer. 22 testified for manufacturers of welding products, 23 Q. Only on the issue of colon cancer, which 23 haven't you? 24 is the exact thing you said there was adequate 24 A. On the issue of whether welding causes Page 4313 Page 4315 1 scientific evidence of until you changed your 1 Parkinson's disease, which it does not. 2 mind. 2 Q. I'm actually very familiar with that, 3 A. Well, until the evidence changed. 3 which you might be shocked to know, and we may get 4 Q. Okay. You've testified for Dow Chemical 4 into that in a little bit. You've testified for 5 Company. 5 BP Petroleum, haven't you? 6 A. A long time ago, yes. 6 A. I have on occasion, yes. 7 Q. You don't still have any relationship 7 Q. BASF? 8 with Dow? 8 A. I don't recall. I may have on issues of 9 A. I have a large research study -- or I 9 diisocyanate. 10 should say the University of Michigan is doing a 10 Q. I'll show you that one in just a minute. 11 large research study -- I'm the principal 11 And Baxter Health Care, you remember that one, 12 investigator on that study -- and Dow is funding 12 don't you? 13 that study. 13 A. I remember quite clearly claims that 14 Q. You don't have any other relationships 14 people made -- health care workers, claiming that 15 with Dow other than that study? 15 they had crippling allergies from wearing latex 16 A. No. 16 gloves and could no longer work as a result of 17 Q. You've never done any published articles 17 latex glove. 18 funded by Dow on Dow products where you came out 18 Q. And your opinion was that there's no 19 and said, "This product doesn't cause the injury 19 adequate scientific evidence that latex gloves 20 that people were claiming it causes?" You've 20 causes, what, some sort of latex allergy? 21 never done that? 21 A. No, that wasn't it. It's actually much 22 A. I did a research study with colleagues 22 more important than that. It's clear that wearing 23 looking at the risk of neurologic disease from a 23 gloves causes contact dermatitis. Lots of people 24 pesticide called chlorpyritos, a widely-used 24 get glove rashes. 32 (Pages 4312 to 4315) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4316 Page 4318 1 What the claims were about was the gloves 1 pretty predictable, isn't it? I mean, you're 2 were causing asthma and anaphylactic responses. 2 going to look at a situation and you're going to 3 Anaphylaxis is like when you get a bee sting and 3 say, "No scientific evidence here" and you're 4 you go into cardiovascular collapse and die. And 4 going to come into court, and you're going to 5 the claims was that gloves were causing those 5 testify to a jury, "There's no adequate scientific 6 types of reactions, and our work research 6 evidence," is there? 7 showed -- and in fact, we published our own 7 A. Only when there's no scientific evidence. 8 analysis of data from the National Center for 8 Q. So you're saying there's no scientific 9 Health Statistics -- showing that health care 9 evidence whatsoever that cadmium, arsenic and lead 10 workers were not at any increased risk of 10 are associated with the health effects being 11 sensitization to the allergens in natural latex 11 claimed by the members of this class. 12 rubber and that there was simply not evidence that 12 A. Well, my testimony is exactly what I 13 health care workers were suffering allergic 13 gave. It's not -- can't be boiled down to that 14 responses to latex rubber gloves. 14 simple a statement. 15 Q. What -- 15 Q. Well -- 16 A. It was clear that they had contact 16 A. But it's quite clear that there is not 17 dermatitis. Nobody's arguing with that point. 17 evidence that the people who live in this area are 18 Q. But your essential opinion was "There's 18 at increased risk of these diseases from that 19 no adequate scientific evidence," correct? On 19 smelter. 20 whatever the issue was, there's no adequate 20 MR. BARR: Hey, Matt, can you pull up the 21 scientific evidence. That was your opinion. 21 chart real quick? 22 A. Well, the issue, sir, was that claims 22 Q. Can you see that all right, Doctor? 23 were being made that the science had proven that 23 A. Yes. 24 wearing gloves -- particularly in the health care 24 MR. BARR: Matt, can you pull up the Page 4317 Page 4319 1 setting -- was causing all these serious diseases 1 first one? 2 and allergic responses, and we looked carefully at 2 Q. Now, you remember this case? Duke Power 3 the evidence, and there was not evidence to 3 case? This is the first case where you came in on 4 support that claim. 4 an asbestos situation, and you said, "There's no 5 Q. And when -- we're probably not going to 5 adequate evidence to show asbestos causes 6 have time to get into this immediately, but you're 6 colorectal cancer," isn't that right? 7 -- the most common theme, if we can use a theme, 7 A. Of course I do, yes. The evidence had 8 of the testimony you give in trial when you 8 change. You could put up the one before that in 9 testify for these manufacturing defendants like 9 1986 where I felt the early evidence supported it, 10 you've done in this case, is that there's no 10 and it changed. 11 adequate scientific evidence, that whatever the 11 Q. But, you've since changed your opinion on 12 product is or whatever the chemical is, causes the 12 this. Your current opinion today is "No adequate 13 alleged injury. Isn't that true? 13 scientific evidence," correct? 14 A. Only when it's true. 14 A. That's what the evidence says, yes. I'm 15 Q. Only -- 15 not alone in that. 16 A. Remember I testify on behalf of 16 Q. All right. That's fine. 17 plaintiffs when it is true. 17 MR. BARR: Will you go to the next one, 18 Q. You testified on behalf of a plaintiff 18 Matt? 19 once. 19 Q. You remember this case, Miles and 20 A. No, no, I've testified on behalf of 20 Tri-Continental Industries about benzene? 21 plaintiffs many, many times. 21 A. I don't recall the case, but I would 22 Q. Okay. Well, I think the jury heard your 22 certainly agree with the opinion, chronic 23 testimony on that. So defendants can rely upon 23 lymphocytic leukemia and chronic myelogenous 24 you -- I mean, it's fair to say, your testimony is 24 leukemia are not known to be caused by benzene. 33 (Pages 4316 to 4319) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4320 Page 4322 1 Acute myelogenous leukemia is, but this 1 clear Lucite ceiling panels, clear plastic 2 is an instance where people are putting the wrong 2 products that are very shock-resistant. It's a 3 diagnosis in. 3 very durable plastic. And yeah, it was true, 4 Q. That wasn't the issue in this case, was 4 there was no scientific evidence that that 5 it, it was chronic myelogenous leukemia -- it was 5 material caused multiple chemical sensitivity. 6 chronic myelogenous leukemia, right? 6 Q. Well, I think people's stomachs are 7 A. CLL and CML are not known to be caused by 7 rumbling. We'll pick up with this chart as soon 8 benzene; AML is. 8 as we get back from lunch. Okay? 9 Q. You were paid $350.00 an hour to provide 9 THE COURT: Thank you, sir. Ladies and 10 that opinion with regard to that? Is that about 10 gentlemen of the jury, hopefully your lunches are 11 right? 11 here, and you may go with your bailiff. We'll 12 A. I don't recall, but that's probably 12 shoot for about 1:00 o'clock to return. 13 right. 13 (The jury exited the courtroom.) 14 MR. BARR: Let's go to the next case, 14 THE COURT: Doctor, you may step down, 15 Matt. 15 but again let me ask that you not discuss you 16 Q. Remember, this is a case, Dow. This is 16 testimony with anyone. 17 about TCA. What is TCA? 17 Counsel, why don't we reconvene at 12:45, 18 A. Trichloroethane, a commonly used 18 please. 19 degreasing solvent back in the 1980s and 1990s. 19 (A recess was taken for lunch after which 20 Q. Do you remember testifying for Dow in 20 the proceedings continued as follows:) 21 this case and saying that there's no adequate 21 THE COURT: Be seated, please. 22 scientific evidence to show that TCA caused 22 Mr. Bailiff, you may return the jury to its box, 23 neurological injury? 23 sir. 24 A. To cause the neurological injuries that 24 (The jury returned to the courtroom.) Page 4321 Page 4323 1 were claimed. This was a case in 1991, 16 years 1 THE COURT: You may be seated. 2 ago. 2 Good afternoon, ladies and gentlemen of 3 MR. BARR: Can you go to the next one, 3 the jury. Let's note that all 11 of our jurors 4 Matt? 4 are again present before the Court and the parties 5 Q. This is the one where you testified for 5 and the respective counsel. 6 BASF. Do you remember when you testified about 6 Mr. Barr, I believe the questioning is 7 BASF about methacrylate? 7 still yours, so you may continue. 8 A. Methacrylate. 8 MR. BARR: Thank you, your Honor. 9 Q. Methacrylate, I'll trust you on how to 9 Matt, could you put the chart back up? 10 say it. Do you remember that testimony, and you 10 BY MR. BARR: 11 said there was no adequate scientific evidence to 11 Q. Now, Doctor Garabrant, we left talking 12 show methacrylate caused multiple chemical 12 about the testimony you gave for BASF, 13 sensitivity? 13 methacrylate? You remember where we were? 14 A. This is a fascinating issue. Multiple 14 A. Yes. 15 chemical sensitivity is a disease that doesn't 15 Q. This is Baxter Healthcare. You remember 16 exist. It doesn't exist. There was a big 16 this case. We talked about this a little by, this 17 brouhaha about how trace levels of chemicals could 17 is dealing with latex gloves, right? 18 be causing people to have all sorts of multi- 18 A. Yes, but that is not what my opinion was. 19 system symptoms, and the scientific community has 19 Q. Okay. But your whole opinion, even if it 20 largely concluded that MCS is not a valid 20 wasn't to show latex gloves caused dermatitis, 21 diagnosis, and it does not meet the criteria for 21 your opinion was that there was no adequate 22 saying that that's a real definable disease. 22 evidence to show whatever the injury was that was 23 And back at the time methacrylate -- 23 being claimed, wasn't it? 24 methacrylate is the stuff that's in typically 24 A. The injury that was being claimed wasn't 34 (Pages 4320 to 4323) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4324 Page 4326 1 caused by the gloves. What else could I say? 2 Q. So you said there was no adequate 3 evidence, correct? 4 A. Well, it wasn't -- there wasn't evidence. 5 It hadn't been caused by it. 6 Q. The same opinion you've given in this 7 case, right? 8 A. No. 9 Q. No, it's not? In this case, you're 10 saying there's adequate evidence that cadmium, 11 arsenic and lead have affected the health of the 12 class members? 13 A. I've made it very clear there's adequate 14 evidence that arsenic causes lung cancer by 15 inhalation; I've made it very clear that arsenic 16 causes lung, bladder, kidney and skin when you 17 have drinking water contaminated. 18 There's no question about that. I've 19 also made it clear that cadmium can cause lung 20 cancer by inhalation. 21 Q. So are you saying that the members of 22 this class are at risk for lung cancer because of 23 their exposure to arsenic? Is that what your 24 testimony is? 1 this was a family that lived next door to a gas 2 station, and I think they claimed that gasoline 3 that had leaked in a plume from the gas station on 4 to their property was causing things like heart 5 disease and lung disease and skin rashes, and 6 that's -- there's just no scientific basis for 7 those claims. 8 Q. Okay. And you were again paid, what, in 9 the neighborhood of $400.00 an hour for that 10 testimony? 11 A. I don't recall, but that's probably 12 right. 13 MR. BARR: Let's go to the next case. 14 Q. Do you remember testifying on behalf of 15 Cooper Industries on a case dealing with community 16 contamination? 17 A. I do, yes. 18 Q. And again, in that case, you said there 19 was no adequate scientific evidence to show the 20 contamination caused a cancer cluster, didn't it? 21 A. Well, if you're going to put my opinions 22 up, I think we should actually get the opinions, 23 because I don't think that what you're putting up 24 accurately reflects my opinions. I think you're Page 4325 Page 4327 1 A. No. 1 changing them a little bit. 2 Q. That's what I thought. And you said 2 Q. Well, what was your opinion? Your 3 there's no adequate evidence, didn't you? 3 opinion was that there was adequate scientific 4 A. My testimony is there's -- I have not 4 evidence? Was that your opinion? 5 seen evidence in this case that would establish 5 A. The Cooper case, to the best of my 6 that they're at increased risk at all. 6 recollection, was in 1996, 11 years ago. I -- I 7 Q. Okay. And in the Baxter Healthcare case, 7 would have to look at the transcript to see 8 you were paid $400.00 an hour for your testimony; 8 exactly what I said. But I don't think that what 9 isn't that right? 9 you've put up is an accurate reflection of it. 10 A. I believe that's correct. 10 Q. Well, would your opinion be that the 11 Q. Okay. 11 handful of cancers that were observed in the 12 MR. BARR: Let's go to the next slide. 12 adjacent community were not caused by the repair 13 Q. You remember testifying for Crown Central 13 facility that was near them? Would that be an 14 Petroleum? It dealt with ground water 14 accurate reflection of your opinion? 15 contamination. 15 A. Could I see what you're reading from? 16 A. What was the name of the case? I don't 16 Q. Certainly. 17 remember the company. 17 MR. BARR: Could I approach, your Honor? 18 Q. Let me pull that out for you real quick. 18 THE COURT: Yes, sir. 19 I have Stiley (Phonetic) versus Crown Central 19 Q. This is your deposition in the Baxter 20 Petroleum. You remember that? 20 Healthcare cases. 21 A. I think so, yes. 21 A. I thought we were on Cooper. 22 Q. You remember it dealt with ground water 22 Q. You were talking about Cooper in the case 23 contamination, right? 23 -- in this deposition, you were talking about 24 A. Well, if this was the case I remember, 24 Cooper basically. 35 (Pages 4324 to 4327) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4328 Page 4330 1 A. So you don't have my opinions in the 1 Q. So that testimony is not true; is that 2 Cooper case. 2 what you're saying? 3 Q. In this deposition, if you'll look at it, 3 A. I was asked to recall something I had 4 Doctor, you'll see you stated your opinion in this 4 said years earlier. 5 Cooper case. 5 Q. Okay. 6 A. Well, this is not what you put up. 6 A. I testified truthfully to the best of my 7 You've misstated my testimony. 7 recollection. 8 Q. You said -- what was your opinion in the 8 Q. Fair enough. 9 Cooper case? 9 A. That I was being asked about something 10 A. I'll read it. My opinions were that the 10 that I had said years earlier. 11 handful of cancers that were observed in the 11 Q. Okay. 12 adjacent community were not caused by the repair 12 A. And I will stand by my testimony. Now 13 facility that was near them. 13 let's read it. 14 Q. Okay. 14 Yeah, let's read this. This is 15 A. And that was correct. 15 important. 16 Q. Okay. So that's your testimony. And 16 Q. Go ahead. 17 that accurately reflects your opinion. 17 A. Okay. "I've next listed Smith versus 18 A. Well, to the extent I recall that in a 18 Arco, a deposition in Houston, Texas. Do you 19 deposition years later, I believe it did. 19 recall the case?" 20 Q. Okay. And if there had been adequate 20 "I don't recall it specifically. I -- to 21 scientific evidence to show that that cancer 21 the best of my recollection, it had to do with 22 cluster was caused by their exposures to 22 claims of disease of the hemologic system, in 23 contaminants from the repair facility, your 23 other words, either leukemia or lymphoma or 24 opinion would have been different, wouldn't it? 24 myelodysplasia." Page 4329 Page 4331 1 A. If the facts were different, my opinion 1 Question: "And you were retained by?" 2 would have been different, of course. 2 Answer: "A defendant in that case." 3 Q. Okay. 3 Question: "And the substance of your 4 MR. BARR: Let's go to the next case. 4 testimony?" 5 Q. You remember testifying on behalf of CSX 5 "I don't recall specifically." 6 dealing with degreasing solvents? 6 "All right. You've next listed Trexlar 7 A. And the claim that they were causing 7 versus CSX in Cumberland, Maryland." 8 irreparable brain damage, yes, I do. 8 Q. That's the case we're talking about on 9 Q. Okay. Is that an accurate -- is the "No 9 the chart here, right? 10 adequate scientific evidence to show solvents 10 A. Yes. 11 caused central nervous damage," is that an 11 -- "a deposition. Do you recall that 12 accurate reflection of your opinion? 12 case, sir?" 13 A. If you could show me the opinion, I'd be 13 Answer: "I don't recall Trexlar 14 happy to look. I don't believe that that is. 14 specifically, no." 15 MR. BARR: May I approach, your Honor? 15 "Do you recall by whom you were 16 THE COURT: Yes, sir. 16 retained?" 17 Q. It was Trexlar versus CSX. You were also 17 Answer: "I believe I was retained by the 18 talking about that in the Baxter deposition. 18 law firm Whiteford, Taylor and Preston." 19 A. So you don't have my opinion in the case. 19 "And did they represent a defendant?" 20 Q. Were you under oath when you were talking 20 "I believe they represented CSX." 21 about this -- under oath in the Baxter deposition? 21 Q. Okay. 22 A. What you've handed me was a deposition 22 A. So now you're asking me if I recall what 23 given in January of 2000 about cases that occurred 23 I said about a case when I testified under oath I 24 years before. 24 didn't recall exactly what I said. 36 (Pages 4328 to 4331) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4332 Page 4334 1 Q. Go to the next page. 1 A. I do not recall -- the case was Rogerio? 2 A. Let's keep reading then. "Do you recall 2 Q. Yes. 3 the substance of opinions that you expressed in 3 A. I do not recall it. When was it? 4 your deposition?" 4 Q. Mr. Rogerio died of multiple myeloma. 5 Answer: "There were a couple of similar 5 You remember that? 6 cases. The issue in those cases was the men who 6 A. I don't. 7 had worked in the CSX repair facility in 7 Q. And you didn't feel that that multiple 8 Cumberland, Maryland believed that the solvents 8 myeloma was associated with his work in the 9 they used to remove grease and oil from the diesel 9 petroleum injury. You don't remember that? 10 electric locomotive engines had caused them to 10 A. Well, I don't remember what I said in a 11 suffer central nervous system damage." 11 case that was many years ago. I don't remember 12 Question: "Did you agree?" 12 when the case was. I can tell you my opinion 13 Answer: "I did not agree with that." 13 today. 14 Question: "And what was the substance of 14 Q. Okay. 15 your testimony?" 15 A. Multiple myeloma is not caused by 16 Answer: "That the solvent exposures that 16 petroleum exposures. 17 they had at CSX did not damage their central 17 Q. Based on what? 18 nervous system." 18 A. Based on the scientific evidence. 19 That's not what you put up there. 19 Q. That there's no adequate scientific 20 Q. Well, did you believe that the solvents 20 evidence, right? 21 you were exposed to, there's adequate scientific 21 A. I gave you my opinion, sir. 22 evidence to show that those solvents caused 22 Q. Let's go to the next case. Do you 23 central nerve damage? 23 remember testifying on behalf of Ford Motor 24 A. My opinion is exactly what I read, I 24 Company, GM, Chrysler, NAPA, Abex, certain other Page 4333 Page 4335 1 believed it did not cause it. You're not putting 1 people in the asbestos brakes litigation? 2 up what the testimony is. 2 Certainly you remember those cases. 3 Q. Let's go to the next case. You remember 3 A. I remember them well. 4 testifying for BP Petroleum -- 4 Q. And your testimony in that case was that 5 A. Could you -- 5 there was no adequate scientific evidence to show 6 Q. -- in this case? 6 asbestos-containing brakes causes mesothelioma. 7 A. Could you show me the case and show me my 7 A. That's not my testimony. My testimony is 8 testimony, please? 8 that there's no evidence. 9 Q. Sure, we can do that. It was Rogerio 9 Q. No evidence at all. 10 versus BP America. Do you remember that? 10 A. No evidence. The epidemiology show 15 11 A. I don't recall offhand. What year was 11 things that show risks at or below 1.0 for 12 it, please? 12 mesothelioma among people that do brake repair 13 Q. You didn't tell us in your sworn 13 work and vehicle repair work, and I'd be happy to 14 testimony. 14 go into that in detail with you. 15 A. Was I asked? 15 Q. So that's your -- your standard testimony 16 Q. It doesn't -- it doesn't reflect it. It 16 that you give? 17 says you were retained by BP Petroleum. Do you 17 A. I don't have standard testimony. I'm 18 remember that? 18 very proud of the work I do. I work very hard to 19 A. Well, I don't recall the case. Do you 19 be sure that what I say in court is based on 20 have the testimony from the case? 20 science and it is a truthful and fair 21 Q. Just answer my question. 21 representation of the science. 22 A. I did. 22 Q. I mean, you have to agree that the 23 Q. Do you remember being retained by BP 23 testimony you give at trial on behalf of these 24 Petroleum? 24 large corporations is pretty much always the same. 37 (Pages 4332 to 4335) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4336 Page 4338 1 A. No. 1 you, and you changed your mind. Remember that? 2 Q. Have you ever testified on behalf of one 2 A. I did some of the original research that 3 of these defendants that there was adequate 3 was published in the peer-review literature that 4 scientific evidence to show that the injury 4 raised issues about whether asbestos causes colon 5 alleged was caused by the product or the 5 cancer. 6 chemical? Have you ever done that? 6 Q. And is it your testimony to this jury 7 A. I have testified truthfully on every 7 that the science is not going to change -- even if 8 occasion, and I have testified in cases where the 8 your opinions are true, that the science is not 9 claims were not supported by the science. 9 going to change and it's never going to be shown 10 Q. So the answer is "No." You -- you've 10 that arsenic, cadmium and lead can cause the 11 never offered that opinion. 11 health effects being alleged in front of this 12 A. I have testified on behalf of plaintiffs 12 jury? 13 many times when I felt that plaintiffs had been 13 A. Let me make it clear, science changes 14 injured by exposures. 14 endlessly. 15 Q. In the Workers' Compensation setting. 15 Q. Okay. 16 A. Yes, they're Workers' Compensation; they 16 A. That's the whole point. That's why 17 were injured at work. 17 science succeeds so well, because it is based on 18 Q. Would you agree with me that all this 18 evidence, and good scientists base their opinions 19 evidence, all this testimony we've been going 19 on the evidence, and as the evidence grows and 20 through is essentially the same testimony you're 20 changes, good scientists revise their opinions. 21 offering here, that there's no adequate scientific 21 So we talked about cadmium was linked to 22 evidence to show that arsenic, cadmium and lead 22 prostate cancer back when I was in public health 23 are related to lung cancer, stomach cancer, kidney 23 school, and the evidence changed. Well, it's just 24 cancer, cognitive effects in the members of this 24 not supported by the science. Page 4337 Page 4339 1 class? 1 We talked about kidney cancer and 2 A. You know, it's not about my opinions; 2 cadmium, that the science really doesn't support 3 it's about the science. We've looked at IARC, we 3 it. Even though there were some positive studies 4 looked at EPA, we looked at NTP. This is what the 4 early on. And so that is the nature of science. 5 body of scientists around the world largely agrees 5 It does change. 6 to. And the fact that I happen to agree with 6 Q. So it's your testimony that this jury 7 mainstream science, I think says something about 7 should just accept your and DuPont's word for it 8 my ability to analyze the science honestly and 8 that the members of this class aren't exposed to 9 fairly. 9 significant risks from their exposures to arsenic, 10 Q. So did I get you -- just said this is not 10 cadmium and lead, mind you, a company that's 11 about your opinions; is that what you just said? 11 already been found negligent for exposing these 12 A. I said it's about the science, it's not 12 people to these substances. That's your 13 about me. 13 testimony, is that they should just trust you? 14 Q. So your opinions don't matter; is that 14 A. No, it's my testimony that the jury 15 what you're telling this jury? 15 should look very carefully and very critically at 16 A. I said the science matters. 16 the evidence, and I hope that they will do that, 17 Q. Okay. Now, you understand -- and I kind 17 and I hope that they will come to a thoughtful and 18 of want to reference back to your -- your first 18 fair decision. 19 case that you ever testified in, the asbestos 19 Q. Now, do you think DuPont looked at your 20 case, where you said there was adequate scientific 20 body of testimony before they went out and hired 21 evidence. You remember that? We talked about 21 you to come in and testify in this case? 22 that. 22 A. I have no idea. 23 A. Yes. 23 Q. You have no idea? You don't think that's 24 Q. And then science changed, according to 24 something they would do? 38 (Pages 4336 to 4339) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4340 Page 4342 1 A. I don't work for DuPont; I don't know. 1 and house dust? 2 Q. Okay. Well, let's talk a little bit 2 A. I'm not aware that they ever had any 3 about your background and what DuPont may have 3 opportunity to do that. I'm not aware that they 4 been able to find out about you before they hired 4 did. 5 you to come talk to this jury. You want to do 5 Q. You don't think they ever had an 6 that? Okay. I thought -- I'll take that as a 6 opportunity to go out and study the soil and the 7 yes. 7 house dust of the people that lived in the area 8 A. I don't think my answer is going to 8 they contaminated? You don't think they ever had 9 matter on that one. 9 an opportunity to go do that? 10 Q. You're probably right. Now, wouldn't you 10 A. I do not know. I assume that your firm 11 agree with me that one of the most significant 11 has the opportunity to do that, and that would be 12 studies you've done in your career was that dioxin 12 compelling evidence if it had been done. 13 study -- you've already talked about it a little 13 Q. And -- and you understand that was done 14 bit -- in Michigan. 14 in this case by the members of the class. They 15 A. Well, we're still working on that study. 15 hired scientists to go out and study the soil, 16 Q. Okay, so it's still ongoing. 16 study the house dust. 17 A. I have a team of 15 people working on 17 A. I haven't seen the blood tests. I 18 that. We just gave 28 papers at the dioxin 18 haven't seen the urine tests. Do they exist? 19 conference, the international conference in Tokyo 19 Q. So you think that the members of this 20 in early September. 20 class have an obligation to go out and get their 21 Q. Now, is dioxin -- 21 blood tested before this company who negligently 22 A. Gave 28 papers. I took 15 people to -- 22 contaminated their community has to medically 23 14 people to Tokyo. 23 monitor them? You think they have an obligation 24 Q. Is dioxin a suspected carcinogen? 24 to go out and pay for tests that this company has Page 4341 Page 4343 1 A. One of the dioxin compounds, 2,3,7,8 1 caused them to go have to have? 2 tetrachlorodibenzo-dioxin, is regarded by IARC as 2 A. If you think that they have received 3 a Class 1 carcinogen to cause cancer in humans, or 3 doses that have put them in at risk, as a 4 suspect. 4 physician, it is absolutely appropriate to do the 5 Q. And the Dow Chemical Company paid your 5 blood tests and the urine tests. 6 University 15 million dollars to go and conduct 6 Q. Well, do you -- 7 that study, didn't they? 7 A. They will provide the foundation for 8 A. 11, I believe. Not 15. 8 determining whether people were or were not at 9 Q. So 11. So I disagree with you on that, 9 increased risk. 10 but we'll just -- we'll take 11 for the purposes 10 Q. Okay. You understand that's what they're 11 of this. Would you agree that the reason the 11 asking for in this case, don't you? 12 study had to occur at all was that there was a Dow 12 A. I believe that Doctor Werntz has asked 13 plant in the community that was emitting dioxin 13 for some elements of that, and has stated -- and I 14 out into the -- and exposing the people that lived 14 can quote it from his report where he said, "Doing 15 around this plant to dioxins? 15 those tests now wouldn't help." That's wrong. 16 A. I think it's fair to say that the study 16 Q. And you think that's wrong. 17 was done because of pollution in Midland at 17 A. I do. 18 Saginaw that came from Dow, yes. 18 Q. But he still -- his program calls for 19 Q. Okay. And you went out and you tested 19 urine testing, does it not? 20 blood, soil and house dust. You remember that? 20 A. Let's read what he says. 21 A. Yes. 21 Q. Doctor, I'm asking a very simple 22 Q. Okay. Now, just remind me, do you know 22 question. His program calls for urine testing, 23 if DuPont ever did that for the members of this 23 does it not? 24 class? Did they ever go out and test soil, blood 24 A. It calls for testing for some things in 39 (Pages 4340 to 4343) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4344 Page 4346 1 urine, but not some of the ones that would be most 1 that settled back on the community. 2 useful. 2 And we found very high levels of dioxins 3 Q. Does it call for blood lead testing? 3 in the soil in that part of the city. 4 A. It calls for blood lead -- blood lead 4 There was a second pattern in the river 5 testing. 5 -- there's a river that runs through the plant. 6 Q. And that's what you think these people 6 It's the Tittabawassee River, and the 7 have an obligation to go out and do before this 7 Tittabawassee River had a different pattern of 8 company -- I mean, why should these people -- why 8 contamination. 9 should the members of the class have to come out 9 It was heavily loaded with 10 of their own pocket for being exposed to something 10 polychlorinated dibenzofurans, not heavily loaded 11 that they had nothing to do with? 11 with the dioxins, and it's not clear where those 12 This company put those chemicals in their 12 furans came from, but they probably came from 13 community, not them. Why should they have to go 13 Dow's operations in the early part of the 20th 14 out and pay for that? 14 century, maybe 80, 70, 60 years ago, and the soils 15 A. I think that if you're going to claim 15 in the flood plain of the river were highly 16 that somebody's harmed you and you have the 16 variable, but many of them were heavily 17 opportunity to show whether they've harmed you, 17 contaminated with those furans. 18 it's a reasonable thing to do. A blood lead test 18 The household dust -- so we actually 19 is not a very expensive test. 19 vacuum cleaned -- or vacuumed people's homes. The 20 Q. So you think they had that obligation, 20 household dust showed elevated levels of dioxins, 21 it's on them. That's your testimony. 21 and they correlated with what was in the soil 22 A. I think it's a reasonable foundation, if 22 outside the home. 23 you want to make a case that somebody's hurt you. 23 We tested people's blood. The blood 24 Q. Okay. Well, let's go back to the dioxin 24 levels showed virtually no relationship to what Page 4345 Page 4347 1 thing. Let's finish your study with Dow. You 1 was in the soil or what was in the household dust. 2 found in your study high levels of dioxin in 2 So even though the soil was contaminated and the 3 homes, soil and people, didn't you? Wasn't that 3 dust was contaminated, there did not seem to be 4 one of the results of your study? 4 any direct pathway from the contaminated soil and 5 A. You'd have to bring up the results. You 5 contaminated dust into people's blood. 6 could go right to the web site and find it. 6 I can go on -- 7 Everything we had found is on our web site. 7 Q. I mean -- 8 Q. You don't remember that? Weren't you the 8 A. -- for as many hours as you'd like to 9 principal investigator? 9 hear. 10 A. I remember in exquisite detail what we 10 Q. If you want to waste the jury's time, 11 found. Do you want me to go through it? 11 that's up to you. 12 Q. I just asked you a very simple question. 12 A. I don't, sir. 13 You found high levels of dioxins in the homes, the 13 Q. I asked you a very simple "yes" or "no" 14 soil and people's blood, didn't you? 14 question, and the answer is "yes." You found high 15 A. Okay. 15 levels in the soil, you found high levels in the 16 Q. I mean, that's "yes" or "no." You either 16 dust. 17 did or you didn't. 17 A. But not in the blood. 18 A. Well, a "yes" or "no" answer wouldn't 18 Q. Fine. Now, in your study, did you do any 19 characterize it accurately. Let me answer, 19 research on the potential health effects of dioxin 20 please. Okay. We found that there was extensive 20 and the high levels in the soil? Was that part of 21 soil contamination in Midland and Saginaw, and it 21 your study? 22 occurred in two patterns. One pattern was to the 22 A. No. And this is the critical issue. 23 north and northeast of the plant, and likely 23 Because before you're going to study health 24 represented aerosol deposition from air emissions 24 effects, you have to establish that exposure has 40 (Pages 4344 to 4347) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4348 Page 4350 1 led to an increased dose. In other words, it 1 saying, there has been no testing in this class on 2 doesn't make sense to go out and do a health 2 blood. He asked him. 3 effects study until you've established that the 3 THE COURT: But the witness was 4 chemical in the environment is actually getting 4 instructed by the Court, through counsel, not to 5 into the people's bodies. It doesn't make sense 5 answer that, so I'm going to instruct the jury 6 to do it. It's nonsense. 6 that they're to disregard it, that the witness 7 And so our study was designed to see 7 answered inappropriately, contrary to the Court's 8 whether the chemicals in the environment got into 8 ruling, and they're not to consider. 9 people's bodies, and by what pathways they got in. 9 MR. GALLAGHER: I think it was invited, 10 Because that's the critical issue. 10 but if that's the Court's ruling -- 11 If you want to do something about the 11 (Counsel returned to counsel table and 12 exposure, you have to figure out how it gets from 12 the proceedings continued in the presence and 13 the environment into people's bodies. And then 13 hearing of the jury as follows:) 14 you can take effective action to stop the 14 THE COURT: Ladies and gentlemen of the 15 exposure. 15 jury, there's been an appropriate objection as to 16 What you don't do is say, "Oh, we'll go 16 the last answer of the witness which violated a 17 out and study health effects" before you can 17 prior Court order, so the Court is striking that 18 establish that something in the environment even 18 answer from the record and instructing the jury 19 gets into people's bodies. Because it's nonsense. 19 not to consider it in any respect in arriving at 20 You've got to go step by step, and you 20 their decision. 21 have to establish the first thing first, and then 21 So you may continue, sir. 22 if you find that the body burdens are increased 22 BY MR. BARR: 23 and you've figured out which pathways, then it 23 Q. Going back to the dioxin study, would it 24 makes sense to think about health studies. 24 be fair to say that you went so far as Page 4349 Page 4351 1 And of course that's what we did. 1 discouraging people that lived around the Dow 2 Q. In this case that we're presently here 2 plant from going to other doctors and getting 3 for today, did DuPont do any of these tests that 3 their blood tested because you thought the Dow 4 you just talked about, any? One? Just one? 4 study would be conclusive? 5 A. I'm not aware that DuPont or anyone else 5 A. No. 6 has done tests except for the ATSDR who came in 6 Q. You did not do that. 7 and tested children and found nothing. 7 A. I did not. 8 Q. You're not aware that plaintiffs -- that 8 Q. Now Doctor, it's fairly common for you to 9 the scientists that worked for the members of this 9 do corporate sponsored research, isn't it? 10 class went out, tested the soil, house dust and 10 A. Well, the sponsors of my research include 11 air in the class area. You're not aware of that. 11 the National Cancer Institute, the National 12 A. I am aware of the data that underlies 12 Institutes of Health, the National Institute for 13 Doctor Brown's risk assessment model, and I'm 13 Environmental Health Sciences, NIOSH, the State of 14 aware that there's been one blood test of a 14 California, the American Cancer Society, the 15 plaintiff in the class. 15 United Auto Workers, Ford Motor Company National 16 MR. BARR: Your Honor, can we approach 16 Joint Committee, the Dow Chemical Company, the 17 real quick? 17 Rohm and Haas Chemical Company, private 18 THE COURT: Yes, please. 18 foundations. That's a few. 19 (Counsel approached the bench and the 19 Q. I want to show you a few of the studies 20 following proceedings were had out of the hearing 20 you've done, just a couple. Let's start with -- 21 of the jury:) 21 MR. BARR: Matt, can you pull up -- I 22 MR. BARR: He was specifically instructed 22 don't know that you have this. I'll just use the 23 not to get into that blood test, and he's -- 23 Elmo. 24 MR. GALLAGHER: He challenged him by 24 Can I approach, your Honor? 41 (Pages 4348 to 4351) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4352 Page 4354 1 THE COURT: Yes, sir. 1 A. I sure do. 2 Q. Do you recognize this study, Doctor 2 Q. This is the study we talked about 3 Garabrant? 3 earlier? 4 A. I do. 4 A. Yes, we did a study of chlorpyrifos, 5 Q. This is a study that you conducted, is it 5 which is Dursban, and we did this with funding 6 not? See your name there? 6 from the Dow Chemical Company which is stated on 7 A. I was a co-investigator on this, yes. 7 page 366. 8 Q. And this was about scleroderma and 8 Q. There's your name, right? You see that 9 solvent exposure among women. You remember that? 9 right on the front. 10 A. I do. 10 A. Yes. 11 Q. Do you know who this was -- who paid for 11 Q. And this is "The Effects of Occupational 12 this study? 12 Exposure to" -- how do you say that? 13 A. Yes, the Dow Corning Corporation. 13 A. Chlorpyrifos. 14 Q. So that's just one study you've done that 14 Q. And that's the same as Dursban, isn't it? 15 was on behalf of Dow Corning, right? 15 A. Chlorpyrifos is the chemical name; 16 A. That was a study done on behalf of the 16 Dursban is the market name. 17 Dow Corning -- actually, you know what? That's 17 Q. And what was your conclusion in this 18 not true. It says right in the study, "Supported 18 study? 19 by grants from the Halogenated Solvents Industry 19 A. It's written right on the first page. 20 Alliance, the Dow Corning Corporation and the 20 Q. Where's it at? I see it. It was your 21 National Institutes of Health." 21 conclusion that -- here, I'll read it. Was your 22 Q. So this is one example of studies you've 22 conclusion that "Chronic chlorpyrifos exposure 23 done on behalf of the Dow Chemical Corporation, 23 produced no clinical evidence of cortical, 24 similar to your -- not in the same realm, but 24 pyramidal tract, extrapyramidal, or other CNS Page 4353 Page 4355 1 similar to the dioxin study, where Dow went out 1 dysfunction among chlorpyrifos subjects compared 2 and paid you or -- you know, your University, to 2 with referents, either at baseline or after one 3 go out and conduct a study, didn't it? 3 year of additional exposure." 4 A. No, you've mixed up two companies. This 4 A. That's exactly what we wrote, yes. 5 is the Dow Corning Corporation; that is not the 5 Q. And this is a study you did for the Dow 6 Dow Chemical Company. It's a different company. 6 Chemical Company, correct? 7 Q. So they're not related at all? 7 A. That's correct. 8 A. I'm not sure of the relationship. To the 8 Q. And in this study, you even listed -- you 9 extent I know, I believe Dow Corning was formed 9 see down there at the acknowledgements? It says, 10 during or just after World War II as a joint 10 "Some of the authors have at times been retained 11 interest between Dow Chemical and the Corning 11 as consultants or served as expert witnesses in 12 Glass Company to explore new findings in the 12 litigation for firms or companies including Dow 13 silica (Phonetic) chemistry which had evolved 13 Chemical, Agrosciences, concerned the manufacture 14 during World War II. 14 or use of insecticides." Do you see that? 15 And I'm not an expert in corporate 15 A. Yes. That's absolutely appropriate to 16 finance, but I'm under the impression that this 16 put in, a full disclosure. 17 was created as a separate corporate entity. 17 Q. So you published a study having to do 18 Q. Okay. The next study I want to show that 18 with Dursban, saying that there are no central 19 you've done, this was the study on Dursban that we 19 nervous system effects, and that study was paid 20 previously talked about. 20 for by Dow Chemical, right? 21 MR. BARR: May I approach, your Honor? 21 A. We studied Dow employees who made Dursban 22 THE COURT: Yes. 22 and who were heavily exposed, and the study was 23 Q. Do you recognize this study, Doctor 23 funded by Dow, and they gave us access to their 24 Garabrant? 24 employees. The study was done by the University 42 (Pages 4352 to 4355) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4356 Page 4358 1 of Michigan with all of the appropriate 2 protections for human subjects in research and 3 protections of confidentiality as well, and I'm 4 very proud of the work. Yes, it's good science. 5 MR. BARR: May I approach, your Honor? 6 THE COURT: Yes, sir. 7 Q. Do you recognize this, Doctor Garabrant? 8 A. I don't know that I've seen this exact 9 document in the past, but I'm certainly aware of 10 the EPA's actions to restrict use of Dursban in 11 homes and consumer use in gardens. 12 Q. And they did that despite the fact that 13 you published a study that said there are no 14 central nervous system effects, right? 15 A. Well, I think you've got your dates out 16 of order. 17 Q. Your study actually came after this. 18 A. Right. Our study came out in 2004, so 19 it's hard to say that the EPA knew the results of 20 our study before we'd done it. 21 Q. Well, did the EPA -- have they since 22 lifted the ban? 23 A. I believe they have not. 24 Q. Now, Doctor Garabrant -- give me one 1 Mickey Leland Center, which is correctly called 2 the National Urban Air Toxics Research Center, 3 gets its money from the EPA, and they also get 4 donations from industries that are interested in 5 and concerned about urban air pollution. 6 MR. BARR: May I approach, your Honor? 7 THE COURT: Yes, sir. 8 Q. Not -- let me put this here so the jury 9 can see it. You see that this is about the 10 center, the Mickey Leland National Urban Air 11 Toxics Research Center. Do you see that? 12 A. Yes. Could you move it up a little bit? 13 Q. Is that better? Let me try and zoom out, 14 see if that helps. 15 A. That's too far. Let's go back in. 16 Q. You tell me where you want me to stop. 17 A. About right there -- whoa, that's good. 18 Q. Now, if you look -- obviously you're 19 going to want to point me to the part where this 20 is authorized by the U.S. Congress. 21 A. And funded by the Congress, too. 22 Q. Well, let's go to the third page -- well, 23 let's start with the second page. You see there 24 Under Current Scientific Advisory Panel Members? Page 4357 Page 4359 1 second here to get organized. You also work with 1 A. I do, yes. 2 research centers that are heavily funded by 2 Q. It lists your name, doesn't it, David H. 3 corporations, don't you? 3 Garabrant. That's you, isn't it? 4 A. I don't know what you're referring to. 4 A. Yes. 5 I'd have to say not to my knowledge, no. 5 Q. And then if we go to the third page, it 6 Q. You don't -- you don't serve as an 6 says as the -- that's a short form for the center? 7 advisor to the Mickey Leland National Air Toxic 7 A. The National Urban Air Toxics Research 8 Research Center? 8 Center, that's correct. 9 A. The Mickey Leland Center is a 9 Q. "Moves towards implementing its mission 10 Congressionally-mandated center to study air 10 and achieving its important goals, substantial 11 pollution and it is funded by the EPA. It has a 11 additional public and private support will be 12 line item in the EPA budget. It's named after 12 needed." Do you see that? 13 representative Mickey Leland who was a strong 13 A. Yes, I do. Let's look up at the first 14 advocate for control of urban air pollution and 14 paragraph at its mission. 15 who was killed in that airline flight -- oh, I 15 Q. We'll get there -- I'll go where you want 16 want to say -- back in Serbia during the Clinton 16 to go once I get through with this. Okay? Is 17 administration. 17 that fair? 18 The Center was named after him because of 18 A. Yeah, sure. 19 his strong advocacy on behalf of cleaning up urban 19 Q. And it says, "More industrial firms, as 20 air. 20 well as foundations and other sources, will be 21 Q. And are you telling this jury that there 21 asked to take part in the funding of the Center's 22 aren't corporate sponsors to the Mickey Leland 22 complex research." Do you see that? 23 National Urban Air Toxic Research Center? 23 A. Yeah, I think this is great, get 24 A. No, I'm not telling them that. The 24 industries to pay for air pollution research. 43 (Pages 4356 to 4359) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4360 Page 4362 1 Q. It says, "Past and present corporate and 1 years ago. I didn't memorize it. But if we could 2 other sponsors are: Ashland Chemical." Do you 2 look at it, I would be pleased. 3 see that? 3 Q. We'll -- I'll show it to you in a minute 4 A. I see it, yes. 4 here. 5 Q. You see DuPont down there? 5 A. Okay. 6 A. I do. 6 Q. Would you agree with me that the Dow 7 Q. Okay. You see companies like Goodyear, 7 Chemical Company is the number one producer of 8 Georgia-Pacific, Exxon Chemical, Sunoco, Union 8 ethylene oxide? 9 Carbide -- 9 A. I have no idea. 10 A. Yeah. 10 Q. You have no idea. 11 Q. So this study -- this research center is 11 A. -- what chemical company is the number 12 heavily funded by industry, isn't it? 12 one producer of ethylene oxide. 13 A. Well, it's heavily funded by the EPA, and 13 Q. Well, let's show this to you. 14 they're asking companies to assist in paying for 14 MR. BARR: May I approach, your Honor? 15 air pollution research. I think that's -- that's 15 THE COURT: Yes, sir. 16 a worthy mission. 16 Q. You recognize this, Doctor Garabrant? 17 Q. I'm going to move on a little bit, 17 A. Yes. 18 Doctor. Would you agree with me that -- I'm not 18 Q. Let's read what this says. This is June 19 the first person to criticize you for your ties to 19 16, 2006, right? You see that on the front? 20 the industries, am I -- to ties to corporate 20 A. I do. 21 industry, am I? 21 Q. And it says, "Re," regarding, "Invitation 22 A. I've been criticized for doing work for 22 for comments on the short list candidates for the 23 the UAW too. I mean, I work in a realm that is 23 Ethylene Oxide Review Panel, EPA Science Advisory 24 highly contentious. When you start to research 24 Board." Do you see that? Page 4361 Page 4363 1 the health effects of chemicals, it's highly 1 A. Yes. 2 contentious, and people criticize whatever you do. 2 Q. And it says, "This letter is supported by 3 Yes, I've been criticized. 3 the following worker and public health 4 I've also been the recipient of research 4 advocates." Do you see that? 5 awards for outstanding research too. 5 A. I see that's what it says, yes. 6 Q. Okay. You remember being nominated to 6 Q. And it's supported by Jennifer Sass with 7 the EPA Science Advisory Board on ethylene oxide? 7 the Natural Resources Defense Council. You see 8 A. Yes, I do. 8 that? 9 Q. And you remember a group of public health 9 A. Yes. 10 advocates objecting to you being on the panel? 10 Q. By an Amanda Hawes from the Toxics Chair 11 A. I'm not sure that would characterize 11 WORKSAFE. You see that? 12 correctly who they were, but -- 12 A. Yes, and my experience is Ms. Hawes -- 13 Q. You don't think that would -- okay, well, 13 she's an attorney in the Bay area. 14 I'll show you that in a second. But they were 14 Q. Okay. You see that it's supported by 15 concerned that you were a corporate insider, 15 Kathleen Burns, the director of Science Core. You 16 weren't they? 16 see that? 17 A. Why don't we read exactly what they said? 17 A. I can read it very well. I have no idea 18 Q. So you don't remember if they were 18 who some of them people are, to be honest. 19 concerned that you had financial conflicts that 19 Q. Well, they knew who you were, didn't 20 would prevent you from being an unbiased member of 20 they? 21 the science advisory panel on ethylene oxide? You 21 A. I'm sorry? 22 don't remember that? I mean, seems like to me 22 Q. They knew who you were. 23 that that's something that people would remember. 23 A. I have no idea -- 24 A. I saw their letter approximately two 24 Q. Well, we'll get -- 44 (Pages 4360 to 4363) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4364 Page 4366 1 A. -- what they knew about me. 1 done research under contract between the 2 Q. We'll get to that in a minute. It's 2 University of Michigan and Dow. I need to make it 3 sponsored by a Bill Borwegen, Occupational Health 3 clear to the jury, I don't get any money from 4 and Safety Director, Service Employees 4 doing that. I'm a tenured professor. My salary 5 International Union. You see that? 5 is paid no matter what I do. 6 A. Yes. 6 If I bring in a research grant, that 7 Q. By Michael Jacobson, Center for Science 7 doesn't change my salary, I don't get anything. 8 in the Public Interest? 8 So it doesn't matter to me if it comes from the 9 A. Yes. 9 National Cancer Institute, United Auto Workers, 10 Q. By Mikal Harbut, Chief Center for 10 Ford Motor Company National Committee or the Dow 11 Occupational and Environmental Medicine at Wayne 11 Chemical Company, if it's a good research project, 12 State University. You see that? 12 I will pursue it, but I get no financial reward 13 A. I see that. Although what does "For ID 13 for doing that. 14 only" mean? I don't know what that applies to. 14 Q. Well, the only financial reward you get, 15 Q. Well, he certainly signed his name, 15 as the jury's already seen, is it comprises 50 16 didn't he? He allowed them to use his name on 16 percent of your total income. 17 there, didn't he? 17 A. No, no -- 18 A. I don't know. 18 Q. Testifying for people like Dow Chemical. 19 Q. You see it says, "Jane Houlihan," there's 19 A. Unh-unh, unh-unh, you just mixed up two 20 a Joe DiGangi, Environmental Health Fund, David 20 separate things. The research money that comes to 21 Michaels, Department of Environmental Health at 21 the University of Michigan does not come to me, 22 George Washington University, David LeGrande? You 22 not a penny of it. 23 see that -- see all the people listed here? 23 Q. Okay. 24 A. I see those names, yes. 24 A. Okay? Page 4365 Page 4367 1 Q. Okay. Now, let's go to the second page. 1 Q. Well, let's go to page 5 of this, and 2 It says, "Overview of ethylene oxide toxicity: 2 let's see what they wrote about your financial 3 Ethylene oxide is a known carcinogen." Do you see 3 conflicts. You see that where it says "Garabrant 4 that? 4 and Schnatter" -- is that how you say that, do you 5 A. I do. 5 know? 6 Q. Now, let's go here when they start 6 A. I do not know Doctor Schnatter. I have 7 talking about their comments. "Five of the 7 seen his name in the peer-review literature. I've 8 nominees" -- I'm on the third page, if you can 8 never met him. It says, "Garabrant and Schnatter 9 follow. "Five of the nominees have financial 9 have financial conflicts. David Garabrant has a 10 conflicts: Gargas, Garabrant." You see that? 10 history of industry consulting and has served as 11 A. I see it. 11 an expert witness to corporate defendants. 12 Q. Then it lists four more nominees, and it 12 Between 2001-2005, Garabrant was 13 says, "These nine individuals should not be 13 personally paid over $264,800 for his consulting 14 selected for expert committee since several 14 for Ford and General Motors in asbestos 15 represent a coordinated perspective, several have 15 litigation. He is now conducting a 15 million 16 overlapping expertise, and since at least five, to 16 dollars stud on dioxin hazards funded by Dow 17 our knowledge have a direct financial relationship 17 Chemical. Since Dow Chemical is the world's 18 with the ethylene oxide and petrochemical 18 largest producer of ethylene oxide, this 19 industry." 19 constitutes a direct financial conflict." See 20 Do you see that? 20 that? 21 A. I see it. 21 A. I see it. 22 Q. You had such a tie with Dow Chemical 22 Q. And then it goes on to say, "Garabrant's 23 Company, didn't you? 23 financial relationship is not disclosed on the EPA 24 A. Well, we've already discussed that I have 24 web site, an apparent violation of the law." Do 45 (Pages 4364 to 4367) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4368 Page 4370 1 you see that? 1 want to show me? 2 A. That is -- first off, I have no knowledge 2 Q. I'm just asking you if that's something 3 of how much or whether the Dow Chemical Company 3 you knew before you came in here and told this 4 produces ethylene oxide. I was surprised to read 4 jury that the members of this class have not been 5 that. And the fact that I didn't disclose it, I 5 significantly exposed to cadmium and arsenic and 6 don't know how I could have disclosed something I 6 lead. Did you know that? 7 didn't know. 7 A. I -- I've already answered the question. 8 Q. You didn't know that you had a financial 8 I'm not aware of that number, but -- what -- what 9 relationship? 9 document are we referring to? Could I see it? 10 A. Well, I don't receive money from the Dow 10 Q. I'm not going to waste this jury's time 11 Chemical Company. I didn't know I had a financial 11 with it. They've seen this stuff a lot. The 12 relationship with them. 12 important point is, there's a lot of stuff you 13 Q. And this group thought that your failure 13 don't know, isn't there? 14 to disclose that was a violation of the law. 14 A. Well, sir, if you're going to ask me 15 A. Since I don't get money from them, I 15 questions about documents I haven't seen, I think 16 didn't know I had a financial relationship. 16 it would be fair to let me see them. 17 Q. Now, ultimately, Doctor, you weren't 17 Q. Well, I'm going to show you some 18 appointed to that advisory board, were you? 18 documents here in a little bit. When did you 19 A. I was not. 19 actually arrive in town to testify in this trial? 20 Q. Now, I want to move now into your 20 A. Early in the morning of Tuesday morning, 21 opinions regarding this case and the class area 21 in the wee hours. 22 and what your opinions are, okay? Now, you hold 22 Q. Okay. And it's now Wednesday, right? 23 the opinion, if I'm correct, that there's been no 23 A. Yes. 24 significant exposure to the members of the class 24 Q. Okay. So you've been here today. Is Page 4369 Page 4371 1 area from the DuPont plant. Is that your opinion? 1 this the first time you've ever come to 2 A. I hold the opinion that Doctor Brown's 2 Clarksburg? 3 models show relatively low level mild exposures -- 3 A. To the best of my recollection, yes. 4 Q. Now -- 4 Q. So you've never gone out and looked at 5 A. -- the opinion that there is no evidence 5 the facility and the class area, have you? 6 of internal dose to the plaintiffs. 6 A. I'd actually very much like to do that. 7 Q. Other than Doctor Brown's data, which the 7 Q. Well, you're saying you haven't had the 8 members of the class paid for, not DuPont -- other 8 chance or the opportunity to go do that? 9 than his data, what do you know about the 9 A. I have not had the opportunity to do 10 exposures of these members of the class to 10 that. 11 cadmium, arsenic and lead? You don't know 11 Q. How long have you -- 12 anything, do you? 12 A. I'll do that, actually, when we finish 13 A. I know they live in a community in which 13 today. I'd very much like to see it. 14 there is a former smelter, and I know that studies 14 Q. Oh, after you testify and tell this jury 15 of similar communities around the world have not 15 that there's no significant exposure, then you'll 16 demonstrated excess risks of cancer. 16 go look? 17 Q. Okay. Do you -- and the jury's heard 17 A. I'd still like to see the site. 18 this, so I don't want to go through all the 18 Q. Well, how long have you been retained as 19 documents on this, but you apparently don't know 19 an expert in this case? 20 this -- are you aware that this smelter released 20 A. I'm not sure I recall. I think perhaps 21 5600 pounds of dust a day? Is that something you 21 nine months, could be a year. I'm not sure. 22 knew? 22 Q. And in that nine months to a year, you've 23 A. I do not recall those numbers. I don't 23 never had the opportunity to come to Clarksburg 24 know the source of that. Is there a document you 24 and talk to the members of this class about their 46 (Pages 4368 to 4371) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8 Page 4372 Page 4374 1 exposures to cadmium and arsenic and lead from the 1 MR. THOMAS: Thank you, your Honor. 2 smelter. 2 DuPont calls Kelly Nelson. 3 A. I don't know how I could have spoken with 3 THE COURT: If you'll come forward, sir, 4 them. I don't know that I'm allowed to talk with 4 please. Could counsel approach, please? 5 plaintiffs in litigation when I've been retained 5 (Counsel approached the bench and the 6 by the other side. Am I allowed to do that? 6 following proceedings were had out of the hearing 7 MR. BARR: Your Honor, I don't have any 7 of the jury:) 8 further questions for Doctor Garabrant. 8 THE COURT: I'm just asking -- it's my 9 THE COURT: Any follow-up, counsel? 9 general understanding -- you correct me -- that 10 MR. GALLAGHER: Yes, your Honor. 10 Doctor Nelson's being called as a fact witness. 11 THE COURT: And if you'll share the 11 Is that correct? 12 microphone, please. 12 MR. THOMAS: No, that's not correct. 13 MR. GALLAGHER: Your Honor, there is one 13 He's going to be called as an expert in primary 14 thing that I need to approach about. 14 care, treatment of patients in the area. 15 THE COURT: Please. 15 THE COURT: Okay. I just kind of 16 (Counsel approached the bench and the 16 remember our prior conversations, so -- okay, 17 following proceedings were had out of the hearing 17 that's fine. Thank you. 18 of the jury:) 18 (Counsel returned to counsel table and 19 MR. GALLAGHER: Your Honor, we're back to 19 the proceedings continued in the presence and 20 the topic of Lenora Perrine's blood. He asked 20 hearing of the jury as follows:) 21 him, "What do you know about exposures in the 21 THE COURT: Sir, if you'll raise your 22 class area to arsenic, cadmium and lead? You 22 right hand. 23 don't know anything, do you?" 23 (The witness was sworn.) 24 He -- he impeached him with his lack of 24 THE COURT: You may have a seat up in the Page 4373 Page 4375 1 knowledge, when he has knowledge. You can't do 1 witness stand, please, sir. 2 that. He's -- you can't move in limine to keep 2 K E L L Y N E L S O N 3 something out and then ask a question that is 3 was called as a witness by the Defendant, and 4 designed to impeach somebody when they can't 4 having been first duly sworn, testified as 5 answer it. He's opened the door to that, and I 5 follows: 6 should be allowed to -- 6 DIRECT EXAMINATION 7 THE COURT: But didn't you ask the exact 7 BY MR. THOMAS: 8 same question? "There isn't any evidence that 8 Q. State your name, please. 9 you've seen other than the ATSDR study concerning 9 A. Kelly R. Nelson. 10 this," and I think it's the same question. So the 10 Q. And it's Doctor Nelson, isn't it? 11 ruling of the Court remains the same. 11 A. That's correct, yes, sir. 12 So you may continue. 12 Q. Doctor, where do you live? 13 (Counsel returned to counsel table and 13 A. 46 Juniper Lane, Bridgeport, West 14 the proceedings continued in the presence and 14 Virginia, right here in Harrison County. 15 hearing of the jury as follows:) 15 Q. And where do you work? 16 MR. GALLAGHER: Your Honor, there's 16 A. A place called Medbrook. 17 nothing I need to ask. 17 Q. Would you tell the jury what Medbrook is? 18 THE COURT: May this witness be excused? 18 A. Medbrook is a large group practice 19 MR. BARR: Yes, your Honor. 19 located in Bridgeport, 1370 Johnson Avenue. We're 20 THE COURT: Sir, you are excused. Thank 20 a group of family physicians. We do primary care, 21 you for your time. 21 continuity care, do some occupational medicine. 22 THE WITNESS: Thank you, your Honor. 22 We also have a large urgent care practice. 23 THE COURT: Mr. Thomas, you may call your 23 Q. And what's your role currently at 24 next witness. 24 Medbrook? 47 (Pages 4372 to 4375) 1-304-372-8069 REALTIME REPORTERS, LLC 1-800-805-8079 a0cdd4db-8625-407a-b425-b0aac9c348e8