Document ow4mJo6BEmaz0jdjXdNQo4oR

1 BEFORE THE ASBESTOS MDL PRE-TRIAL JUDGE CAUSE NO. 2008-36868-ASB 2 3 JOHN JOHNSTON, Individually and )IN THE DISTRICT COURT as Personal Representative of ) 4 the Heirs and Estate of JERRY JOHNSTON, Deceased; ) 5 FRED JOHNSTON and JUDY COURTS )HARRIS COUNTY, TEXAS 6 VS. ) ) 7 AFTON PUMPS, INC., et al )11TH JUDICIAL DISTRICT 8 TRANSFERRED FROM CAUSE NO. 47341 9 JERRY JOHNSTON, et al, )IN THE DISTRICT COURT 10 ) vs. )BRAZORIA COUNTY, TEXAS 11 ) AFTON PUMPS, INC. et al )29TH JUDICIAL DISTRICT 12 ************************************************* 13 ORAL DEPOSITION OF DR. MICHAEL GRAHAM 14 MAY 18, 2010 ORIGINAL 15 ************************************************* 16 ORAL DEPOSITION OF DR. MICHAEL GRAHAM, 17 produced as a witness at the instance of the 18 Defendant, and duly sworn, was taken in the 19 above-styled and numbered cause on the May 18, 2010, 20 from 10:20 a.m. to 12:12 p.m., before JULIE HUNDELT, 21 CCR in and for the State of Missouri, reported by 22 machine shorthand, at 1300 Clark Avenue, St. Louis, MO 23 63103, pursuant to Missouri Civil Procedures and the 24 provisions stated on the record or attached hereto. 25 1 1 A P P EARAN C E S 2 FOR THE PLAINTIFFS: 3 Chris Panatier Simon Eddins & Greenstone, LLP 4 3232 McKinney Avenue Suite 610 5 Dallas, TX 75204 Phone: 214.276.7680 6 FOR THE DEFENDANT, THE DOW CHEMICAL COMPANY: 7 Darah Eckert 8 Mahaffy Weber One Allen Center 500 Dallas 9 Suite 1200 Houston, TX 77002 10 Phone: 713.655.1200 11 FOR THE DEFENDANT, JOHN CRANE, INC. 12 Mark Tivin O'Connell, Tivin, Miller & Burns, LLC 13 135 S. LaSalle St. Chicago, IL 60603 14 Phone: 312.256.8800 15 FOR THE DEFENDANT, STANDCO INDUSTRIES, INC., VIA 16 TELEPHONE: 17 Kenneth R. Royer Willingham, Fultz & Cougill, LLP 18 Niels Esperson Building 808 Travis St., Ste. 1608 19 Houston, TX 77002 Phone: 713.333.7600 20 FOR THE DEFENDANT, FLOWSERVE CORPORATION f/k/a THE 21 DURION COMPANY, INC., and BW/IP, INC., and its wholly owned subsidiaries, VIA TELEPHONE: 22 Wesley T. Sprague 23 Sheehy, Ware & Pappas, PC 909 Fannin 24 Suite 2500 Houston, TX 77010 25 Phone: 713.951.1152 2 1 A P P EARAN C E S 2 (continued) 3 FOR THE DEFENDANT, GOULDS PUMPS, INCORPORATED, VIA TELEPHONE: 4 Raymond C. Palmer 5 Naman, Howell, Smith & Lee, PLLC 400 Austin 6 Suite 800 Waco, TX 76701 7 Phone: 254.755.4100 8 ALSO PRESENT: 9 Dr. Michael Graham, The Witness Julie Hundelt, Court Reporter 10 Jack Snyder, Videographer 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 INDEX 2 PAGE Appearances 2-3 3 Stipulations....................................................................................... 5 4 WITNESS: DR. MICHAEL GRAHAM 5 Direct Examination by Mr. Tivin...............................5 6 Cross-Examination by Mr. Panatier.......................... 29 7 Cross-Examination by Mr. Sprague............................................84 8 Redirect Examination by Mr. Tivin.........................................85 9 Recross-Examination by Mr. Panatier.................... 10 Further Direct Examination by Mr. Tivin......... 91 96 11 Further Cross-Examination by Mr. Panatier.. 97 12 Reporter's Certificate........................................................................99 13 14 15 E X H I B I T S 16 EXHIBIT PAGE MARKED 17 Graham Exhibit 1 Dr. Graham's CV 5 18 Graham Exhibit 2 Dr. Graham's Report 5 19 Graham Exhibit 3 US Department of Labor 50 20 OBJECTIONS: 21 By Defendants - 50, 52, 57, 66, 67, 68, 69, 70, 76, 22 79, 80, 81, 95, 96 23 By Mr. Panatier - pgs. 67, 68, 91, 97 24 25 4 1 IT IS HEREBY STIPULATED AND AGREED by and 2 between counsel for the Plaintiffs and counsel for the 3 Defendants that this deposition may be taken in 4 shorthand by Julie Hundelt, CCR, and notary public, 5 and afterwards transcribed into printing, and 6 signature by the witness is waived. 7 ***** 8 DR. MICHAEL GRAHAM, 9 Of lawful age, produced, sworn, and examined on behalf 10 of the Defendants, deposes and says: 11 EXAMINATION 12 QUESTIONS BY MR. TIVIN: 13 (Starting time of the deposition: 10:20 a.m.) 14 (Graham Exhibits 1, 2 and 3 were marked for 15 identification.) 16 Q Good morning, Dr. Graham. 17 A Morning. 18 Q Could you please introduce yourself to the 19 ladies and gentlemen of the jury? 20 A Dr. Michael Graham. 21 Q What do you do for a living? 22 A I'm a forensic pathology. 23 Q Now I'm going to show you what has 24 previously been marked as Graham Exhibit Number 1. Do 25 you see that? 5 1 A I can. 2 Q What is that? 3 A It's a copy of mycurriculum vitae. 4 Q What is that? 5 A It's kind of a biography ofmy professional 6 career. 7 Q We're going to go through your background a 8 little bit in the beginning if that's okay with you, 9 Doctor. 10 A Okay. 11 Q Can you give the ladies and gentlemen of the 12 jury a brief educational background? 13 A I went to St. Louis University as an 14 undergraduate, got my degree from there in 1973. I 15 received my M.D. in 1977 from St. Louis University. I 16 then spent the following four years at St. Luke's 17 Episcopal Hospital in Houston, Texas, training as a 18 pathologist. Then came back to St. Louis University 19 for an additional year of training in forensic 20 pathology. I'm certified by the American Board of 21 Pathology in anatomic, clinical, and forensic 22 pathology. 23 Q Are you licensed to practice medicine in any 24 states? 25 A I'm licensed in Missouri. 6 1 Q That's where we are right now? 2 A Yes. 3 Q Do you work? 4 A I do. 5 Q What do you do? 6 A I'm a professor ofpathology at St. Louis 7 University. I co-direct the Division of Forensic and 8 Environmental Pathology. My work assignment is as the 9 Chief Medical Examiner for the City of St. Louis. 10 Q Let's take those one at a time. Can you 11 please explain to the ladies and gentlemen of the jury 12 what the different types of pathology that you're 13 board certified in, what they mean? 14 A Pathology is one of the major specialties in 15 medicine that deals with the basic nature of diseases 16 and injuries. What they look like, what causes them, 17 how they affect people. The major field of pathology 18 is generally separated into two divisions. 19 One is called anatomic pathology which deals 20 with the examination of tissues taken from the body - 21 for example, during biopsies, surgery, or autopsies. 22 The other major area is clinical pathology which is 23 kind of the laboratory aspects of medicine -- the 24 blood tests, urine tests, things like that. 25 Within those two broad areas are a number of 7 1 small areas that most pathologists don't have much 2 experience in, and that requires additional experience 3 to practice them. One of those is forensic pathology 4 which deals with addressing pathology issues that come 5 in public forums such as in criminal investigations or 6 in civil lawsuits such as this one. 7 Q You also mentioned your teaching duties. 8 Are you familiar with what asbestos is? 9 A I am. 10 Q Do you teach anything that has to do with 11 asbestos in any of your pathology courses? 12 A Not in the general course to the medical 13 students. I do teach it in some of the continuing 14 education courses, some departmental conferences. 15 Q As a result of that, do you try to keep 16 abreast of the medical and scientific literature as it 17 relates to asbestos? 18 A I do. 19 Q You also mentioned that you're the Medical 20 Examiner. Can you please explain to the ladies and 21 gentlemen of the jury what that is? 22 A Yeah. I have the Government appointment 23 that is responsible for certifying how and why people 24 die when they die under certain circumstances 25 generally either suddenly and unexpectedly or when 8 1 some sort of outside influence may have played a role 2 in death. 3 Q I mentioned earlier a little bit about 4 asbestos. When did you first develop in interest in 5 the field of asbestos as it relates to medicine? 6 A I've always been interested in heart and 7 lung pathology. My interest in asbestos started when 8 I was in Houston back in the late 70's. Then I got 9 much busier in that area in the mid 80's. 10 Q And have you ever done any, written any 11 articles regarding asbestos or in which asbestos was a 12 topic? 13 A I've written onearticle that dealt with a 14 number of lung issues that come up in the forensic 15 setting. That article has part of it dealing with 16 asbestos. 17 Q You mentioned that you try to keep abreast 18 of the medical and scientific literature. Are you 19 familiar with a product called gaskets? 20 A I am. 21 Q Are you familiar with a product called 22 packing? 23 A Yes. 24 Q Are you familiar with the medical and 25 scientific literature generally as it relates to 9 1 gaskets and packing and asbestos? 2 A Yes. 3 Q Now you're doing some consulting work in 4 this case. Do you do that for free? 5 A No. The University bills for my time. 6 Q How much does the University bill for your 7 time? 8 A $400 an hour. 9 Q Does it matter who hires you with regard to 10 how much you charge? 11 A No. All my time is billed at the same rate 12 regardless of who it's for and what I do. 13 Q Are you a member of the College of American 14 Pathologists? 15 A I am. 16 Q And are you involved in any committees from 17 the College of American Pathologists? 18 A I'm currently the vice chair of the 19 forensics committee. 20 Q Have you done any work for the US 21 Government? 22 A I have. 23 Q Can you please explain that to the ladies 24 and gentlemen of the jury? 25 A A number of years ago people may remember 10 1 the Branch Davidian incident, Waco, Texas, where David 2 Koresh and his followers were in a compound with a 3 stand-off with the US agents. There were shots fired. 4 There was a fire. Numerous people were killed. A few 5 years after the event the Justice Department reviewed 6 the entire incident, and I was the consultant 7 pathologist to that particular commission. I'm 8 currently doing some work for the National Institute 9 of Justice in some of their grants review. 10 Q Have you received any awards, professional 11 awards during your career? 12 A I have. 13 Q Can you pleaseexplain, tell the ladies and 14 gentlemen of the jury about those? 15 A I received some awards from my work in 16 transplantation. I've also received some awards from 17 the National Association of Medical Examiners for work 18 I did for them. 19 Q I don't mean to be jumping back and forth. 20 We talked a little bit about your consulting work. 21 Have you done work for plaintiffs and defendants? 22 A I have. 23 Q In your consultingwork, do youcharge the 24 same for plaintiffs and defendants? 25 A Yes. 11 1 Q How long have you been doing them, 2 consulting in asbestos related cases? 3 A Since the mid 80's. 4 MR. TIVIN: Now off the record. Off 5 video record. 6 (Whereupon, a moment was taken off the record.) 7 Q (By Mr. Tivin) Doctor, can you please tell 8 the ladies and gentlemen of the jury generally what 9 is asbestos? 10 A Asbestos is a certain type of mineral. It's 11 a hydrated silicate that comes in a number of forms, 12 but the ones that we're interested today are the 13 fibrous forms. 14 Q Are all types of asbestos commercially used? 15 A No. 16 Q Are you familiar with the different types of 17 asbestos used in different products? 18 A In a general sense, yes. 19 Q How have you become familiar with that? 20 A Primarily through the work that I've done in 21 this litigation. 22 Q Are you familiar with the term amphibole 23 asbestos? 24 A Yes. 25 Q What is that? 12 1 A The amphiboles are one of the major classes 2 or one of the two major classes of asbestos. The 3 fibers are primarily in the shape of little needles or 4 little rods. They're quite rigid, and they stay in 5 the body for long periods of time. 6 Q Are you familiar with the term serpentine 7 asbestos? 8 A Yes. 9 Q What is that? 10 A The serpentine group which only has one 11 member, is the other major type of asbestos. The sole 12 member of the serpentine group is chrysotile which 13 instead of being like little needles looks like little 14 rolled up parchments or when they're together almost 15 like a piece of yarn. 16 Q Does the body react to the different types 17 of asbestos the same? 18 A No. 19 Q What is the difference generally? 20 A The amphiboles are very poorly handled by 21 the body. Once they're in there and in the lung, they 22 tend to stay there for a very long period of time. 23 Chrysotile on the other hand because of its structure 24 and its chemical nature is well handled by the body 25 and it tends to basically fall apart and dissolve in 13 1 the body fairly readily. 2 Q Have you studied the ability of the 3 different types of asbestos and their ability to cause 4 disease in humans? 5 A I have. 6 Q Let's talk about this case for a moment. 7 Were you hired by my firm to look at this case? 8 A I was. 9 Q What did we ask you to do? 10 A Asked me to look at to see what disease or 11 diseases Mr. Johnston had whether there was any 12 evidence of any asbestos related conditions in the 13 body and whether gaskets and packing material played a 14 role in the development of his tumor and specifically 15 gaskets and packing from John Crane. 16 Q And as a result of that consultation, did 17 you prepare a report? 18 A I did. 19 Q I want to show you what's been marked as 20 Graham Exhibit Number 2. Do you see that? 21 A Yes. 22 Q Is that the report you prepared in this 23 case? 24 A It is. 25 Q What materials did you review in this case? 14 1 A I had medical records, I had as I recall 2 answers to interrogatories, and I think maybe a case 3 report; and then I had microscopic slides prepared 4 from the tissues sampled during a biopsy, and I also 5 had the results of a report by Dr. Dodson, who 6 quantified how much and what type of asbestos he found 7 in the lung tissue. 8 Q Did you come to an conclusion within a 9 reasonable degree of medical and surgical certainty as 10 to whether Mr. Johnston suffered from an asbestos 11 related disease? 12 A He did. 13 Q What was your conclusion? 14 A He did. 15 Q What was the disease? 16 A Malignant mesothelioma of the pleura. 17 Q Have you studied the ability of the 18 different types of asbestos to cause malignant 19 mesothelioma? 20 A I have. 21 Q You've mentioned the different fiber types. 22 Can crocidolite cause malignant mesothelioma? 23 A Yes. 24 Q Can amosite cause malignant mesothelioma? 25 A Yes. 15 1 Q Can chrysotile cause malignant mesothelioma? 2 A In humans unless it's contaminated with an 3 amphibole, I don't think it does. 4 Q Can you compare the ability of crocidolite 5 to amosite in the ability to cause mesothelioma - 6 wait. Strike that. Are you familiar with the term 7 carcinogenicity? 8 A Yes. 9 Q What does that term mean? 10 A Just means that something is capable of 11 causing cancer. 12 Q Are you familiar with the term potency as it 13 relates to carcinogenicity? 14 A Yes. 15 Q Do you have an opinion based upon the 16 relative potencies of the various commercially 17 available fiber types and their ability to cause 18 mesothelioma? 19 A Of the commercial fiber types, crocidolite 20 is the most potent. Amosite is somewhat less potent, 21 probably about 10 percent as potent as crocidolite. 22 Then chrysotile it depends upon how much contamination 23 there is by some sort of amphibole. If you look at 24 the chrysotile that comes out of the ground in some of 25 the mines in Canada where we know that it can cause 16 1 disease, it's probably two or three orders of 2 magnitude less than crocidolite or amosite. 3 Q When you say two to three orders of 4 magnitude, does that mean two to three times? 5 A No. Those are factors of ten, so a hundred 6 to thousand times less potent. 7 Q What's the basis for that opinion? 8 A It's based upon looking at different 9 populations around the world and seeing how much 10 exposure individuals who get the disease if they get 11 it at all have, and kind of what's the lower limit as 12 to where you see it. 13 And what you see is that if there is 14 contamination to a sufficient amount of chrysotile by 15 some sort of amphibole, it takes very heavy prolonged 16 exposures before you see the disease. Even then, it's 17 very, very few workers get it. 18 For example, if you look at the Canadian 19 miners and millers, about four-tenths of a percent get 20 the disease. Then similarly you look at populations 21 exposed to amosite and to crocidolite, and you see 22 that those populations require much less exposure as 23 we mentioned before. 24 Q When you were talking about exposure, does 25 that relate to the concept of dose? 17 1 A It relates to it. There's always two 2 factors when you're looking at the administration of 3 toxic substance -- how much you get and for how long 4 you get it. And you have to consider both of those 5 factors. 6 Q Are you familiar with the term or the term 7 of art asbestos in the ambient air or ambient air 8 levels of asbestos? 9 A Yes. 10 Q Can you explain to the ladies and gentlemen 11 of the jury what that is? 12 A Basically if you go out and measure the air 13 just outside the door, you'll find a lot of particles 14 of different types of chemicals in the air. Some of 15 that will be asbestos. Generally what we consider is 16 the ambient air is just what you breathe day in and 17 day out assuming that you're not working in an 18 environment where asbestos is being actively used. 19 Q Does everyone over the age of 40 have some 20 background level of asbestos in their lungs? 21 A In North America, yeah. 22 Q Has that level of asbestos ever been 23 associated with any asbestos related disease? 24 A Not in the general population. There are 25 specialized areas or localized areas where that has 18 1 been true such as in Libby, Montana, with the 2 vermiculite, down in Louisiana near some of the 3 plants, and maybe one or two other spots. But just 4 generally for most of us, no. 5 Q Can you explain to the ladies and gentlemen 6 of the jury -- strike that. Are you familiar with the 7 term fiber year? 8 A Yes. 9 Q Or fiber CC year? 10 A Yes. 11 Q Can you explain what that is to the ladies 12 and gentlemen of the jury? 13 A Some of you may have heard about pack years 14 when we talk about smoking which is a way to quantify 15 someone's smoking habit over the year. So if you 16 smoke two packs of cigarettes a day for 25 years, that 17 would be 50 pack years. Or two packs a day -- or one 18 pack a day for 50 years would be 50 pack years. So 19 you just multiply how much is in your smoking versus 20 how much years you did it on a regular basis. 21 We do a very similar thing for asbestos, and 22 that is you find out how much fibers are in one CC of 23 air that you're breathing, and the number of years 24 you've been breathing that concentration. Generally 25 when you do that in relation to asbestos, you're doing 19 1 it in a timely period, which is basically eight hours 2 a day five days a week over a work year. So two 3 fibers per CC for one work year would be two fiber CC 4 years or what we often call two fiber years. If you 5 do that for two years, it would be two times two it 6 would be now. 7 Q Now you talked about some different types of 8 asbestos. Do you have an opinion as to the fiber CC 9 year dose that it causes for amosite to be related to 10 the causation of malignant mesothelioma? 11 A The lowest number that I've seen where 12 people talk about an increased incidence is somewhere 13 around three fiber years or five fiber years. 14 Q And what is, where have you read that? 15 A I think Dr. Rogley has mentioned that in the 16 past. 17 Q Well, I guess what I'm talking about, that's 18 something that you've seen in the medical and 19 scientific literature? 20 A I think I have seen that written. Yeah. 21 Q Do you have an opinion within a reasonable 22 degree of medical and scientific certainty as to the 23 fiber CC year dose of chrysotile that would be, if it 24 could ever be related to the development of malignant 25 mesothelioma? 20 1 A Again, if we look at the, some of the 2 studies out of Canada where we know that the 3 chrysotile does have contamination at least in some of 4 the mines, but if we look at some of the ore, we know 5 it causes disease, seems to start somewhere around 100 6 fiber years, maybe a little more or a little less. 7 But in that general ball park. 8 Q So if someone has an exposure to chrysotile 9 that is under two fiber per CC years or under one 10 fiber per CC year, would that give rise to cause 11 mesothelioma? 12 A I mean if it was contaminated enough and if 13 you live long enough, theoretically, but you may have 14 to live a hundred years or something in that 15 environment. In general though, no. 16 MR. PANATIER: Mark, let me interrupt 17 you real fast. Do you want to agree that all 18 objections are reserved until the time of trial? 19 I mean that's typically how we do it other than 20 objection to form in Texas. 21 MR. TIVIN: Okay. Is that agreeable to 22 everyone? Off the record. 23 (Whereupon, a moment was taken off the record.) 24 Q (By Mr. Tivin) Getting back to Mr. Johnston, 25 the ladies and gentlemen of the jury have already 21 1 heard about the different, I'm assuming have heard 2 about the different types of asbestos-related 3 diseases. So I'm not going to have you define them. 4 But did you find any evidence Mr. Johnston had 5 asbestosis? 6 A He did not have asbestosis. 7 Q Did you find any evidence that Mr. Johnston 8 had any pleural plaques? 9 A No. 10 Q Are you familiar with the concept of direct 11 exposure and bystander exposure as it applies to 12 asbestos? 13 A Yes. 14 Q What is that? 15 A Direct exposure is generally defined as 16 someone who is actually directly working with the 17 asbestos fibers themselves or some product that 18 contains them. Bystander exposure is someone who 19 happens to be in the general area that's breathing the 20 same air, as the worker may be, or at least similar 21 air. But not directly working with the product 22 itself. 23 Q Did you receive any information about 24 Mr. Johnston's work history? 25 A Some. Yes. 22 1 Q Did you find anything in significance in 2 what you received? 3 A I had very little information about his work 4 history. I know where he worked when he worked there. 5 He did work in environments where I would expect that 6 there would be asbestos. 7 Q Are you familiar with what a tissue 8 digestion study is? 9 A Yes. 10 Q Did you review one of those in this case? 11 A I did. 12 Q Did you find anything significant in that 13 tissue digestion study? 14 A Yes. 15 Q What was the significance? 16 A There were two things. One is when the 17 number of asbestos fibers of the body had ensheathed 18 or put a coating of iron and protein on what we call 19 asbestos bodies, when that concentration was measured 20 was relatively mildly elevated, but clearly more than 21 you would expect in someone just walking around the 22 streets every day. 23 And then when the actual fibers were 24 counted, the only fiber that was observed was an 25 amosite fiber. But because of the amount of tissue it 23 1 was in, it does indicate that there was an increased 2 number or increased concentration of amosite fibers in 3 the lungs. Nothing else was seen. 4 Q And was that significant to you that there 5 was an increased amount of amosite fibers in the 6 lungs? 7 A Yes. It goes along with the increased 8 number of asbestos bodies. Amosite is an amphibole, 9 so it fits together fairly well. 10 Q Did you review any medical records in this 11 case? 12 A I did. 13 Q What did you review? 14 A I had a variety of his medical records, some 15 related to his tumor and some unrelated. 16 Q Did you find anything significant in the 17 medical records that you reviewed? 18 A Yeah. He had a number of significant 19 diseases in addition to his tumor. He had significant 20 heart disease related to hardening of the arteries to 21 the heart. He was a diabetic. He also at least at 22 one point was substantially obese, because he 23 underwent a surgical procedure to try to correct part 24 of that. 25 Then at least for our purposes here today, 24 1 early in 2008, he started getting fluid in the right 2 side of his chest. That lead to the diagnosis of 3 malignant mesothelioma that started on the lining of 4 the right chest wall. 5 Q And you know, just to be clear, you're not 6 saying that any sort of obesity or heart disease had 7 anything to do with the development of his 8 mesothelioma; is that correct? 9 A No. You were asking me what I guess 10 significant diseases that he had, and those are the 11 ones that the record reflected. 12 Q Those types of diseases, could they lessen 13 someone's life expectancy? 14 A Yes. 15 Q And how so? 16 A Well, the heart disease can cause heart 17 attacks or cause sudden death. He had had at least 18 two heart attacks and had a number of surgical 19 procedures to help forestall another. He also had 20 trouble with significant disturbances in the way the 21 heart beats, and he had an implantable defibrillator 22 implanted in his chest to try to at least correct one 23 of the more serious ones if it occurs. Diabetes is 24 associated with early death for a number of reasons 25 including heart disease, and overall obesity is 25 1 associated with shortening of life span. 2 Q Now based upon the medical records that you 3 reviewed, based upon the tissue digestion report and 4 pathology that you reviewed, do you have an opinion 5 within a reasonable degree of medical certainty as to 6 what type of asbestos caused Mr. Johnston's 7 mesothelioma? 8 A Based on the information that I reviewed 9 from our report, it was amosite, a type of amphibole. 10 Q And I represent a company called -- strike 11 that. Historically what types of products contained 12 amosite if you're aware? 13 A Most commonly thermal insulation, some type 14 of fireproofing. Those are probably the most common. 15 Some types of boards, but that was often used for 16 either fireproofing or thermal insulation. 17 Q I represent a company called John Crane, 18 Incorporated. Are you familiar with that company? 19 A I am. 20 Q Are you familiar with the products that John 21 Crane either made or sold? 22 A In general I am. 23 Q Those would be gaskets and packing? 24 A Yes. 25 Q Are there -- strike that. Are there any 26 1 articles in the medical and scientific literature that 2 relates gaskets and packing to an increased risk of 3 mesothelioma? 4 A Not that I'm aware of. 5 Q Are there any articles in the medical or 6 scientific literature that relates gaskets and packing 7 to an increased risk of any asbestos-related disease? 8 A Not that I'm aware of. 9 Q Can you explain to the ladies and gentlemen 10 of the jury what the difference is between risk and 11 causation? 12 A Risk is really generally defined for a 13 population and that is a given population has a 14 certain percent increased likelihood of getting that 15 disease based upon some characteristic that is 16 different to that population than from the general 17 population. Doesn't mean they're going to get the 18 disease. Doesn't tell you whose going to get the 19 disease; but that in this group of individuals, some 20 people, more people then you would expect will get the 21 disease. Causation really deals with once you got the 22 disease and finding out why you have it. 23 Q Do you have an opinion within a reasonable 24 degree of medical and scientific certainty as to 25 whether Mr. Johnston's alleged exposure to John Crane, 27 1 Incorporated, gaskets or packing was a cause of his 2 malignant mesothelioma? 3 A It was not. 4 Q So do you have an opinion? 5 A I do. Sorry. I do. 6 Q What is your opinion? 7 A John Crane gaskets and packing had nothing 8 to do with it. 9 Q Why do you say that? 10 A A couple of reasons. One is I'm not aware 11 that there's been any evidence that he was exposed to 12 John Crane gaskets or packing, but probably more 13 importantly on a scientific side, the asbestos fibers 14 and gaskets and packing are encapsulated or embedded 15 in a matrix. That prevents their release; or if 16 there's any release into the air, it's very, very 17 tiny, and I would not expect that to cause or contract 18 to any disease. It's such a small amount. 19 Most of the gaskets and packing that you 20 deal with are also chrysotile; and so without the 21 contamination and without heavy prolonged exposure to 22 contaminated chrysotile, you won't get the disease. 23 Q I want you to assume that Mr. Hays has 24 testified, and he has testified that Mr. Johnston was 25 exposed to between one and two fiber per CC years to 28 1 John Crane, Incorporated, gaskets or packing. Can you 2 assume that? 3 A Okay. 4 Q Based upon that type of fiber year exposure, 5 do you have an opinion whether that would relate to 6 the development of Mr. Johnston's mesothelioma? 7 A No. Chrysotile would not cause it at that 8 concentration. 9 Q Do you have an opinion as to whether 10 Mr. Johnston's exposure to amosite containing products 11 was a substantial factor that caused his mesothelioma? 12 A I do have an opinion. 13 Q What is the opinion? 14 A My opinion is based on the data that I've 15 seen, his mesothelioma was caused by exposure to 16 amosite. 17 MR. TIVIN: Thank you no further 18 questions. 19 CROSS-EXAMINATION 20 QUESTS-IONS BY MR. PANATIER: 21 Q Ready to keep going? 22 A Sure. 23 Q Sir, how many hours of time have you spent 24 so far reviewing materials for this case? 25 A Three. 29 1 Q And what's your billing rate for those hours 2 of review? 3 A $400 an hour. 4 Q Is that the same rate that you billed for 5 the deposition? 6 A Right. All my time is billed at the same 7 rate. 8 Q What did you do for that three hours? 9 A I reviewed records, I looked at microscopic 10 slides, and I wrote a report. 11 Q Did you ever read Mr. Johnston's deposition? 12 A No. 13 Q Did you ask for it? 14 A I didn't know it existed. 15 Q You've done a lot of these cases; right? 16 A I have. 17 Q And typically there's a deposition of 18 someone who identifies products that have been used; 19 right? 20 A Sometimes there is. Not always. But -21 Q Okay. Do you ask for one? 22 A I did not ask for one in this case. Given 23 the question that I was really asked to answer that 24 related to the chrysotile containing gaskets and 25 packing, and given the results of the fiber burden, 30 1 the deposition wouldn't really add to resolving that 2 particular question. 3 Q Well, one question that you answered, you 4 were asked questions about the alleged exposure to 5 John Crane, and you said you weren't aware of any 6 evidence of exposure to John Crane. But you didn't 7 read the deposition? 8 A No. I think Mr. Tivin mentioned that to me 9 that there was no specific indication of John Crane. 10 Q Oh, okay. Let me do this. I have one copy, 11 so I'll ask you to take my word for it. If you want 12 to review it, I'll certainly allow you to do that. I 13 want to read you some excerpts from the deposition and 14 ask you whether or not that was in line with what 15 Mr. Tivin told you. He was asked on page 37 with 16 respect to the John Crane gaskets, did you ever remove 17 a John Crane gasket? Answer, yes. What were those 18 gaskets made out of? Answer, asbestos. Is that 19 evidence that he worked with a John Crane gasket? 20 A Actually, I think I was incorrect before. I 21 think we were talking about the potential for 22 amphibole containing gaskets. So, yeah, I misspoke. 23 There was exposure to chrysotile containing gaskets. 24 Q There was exposure to John Crane 25 chrysotile-containing gaskets; correct? 31 1 A Yes. 2 Q You personally didn't inquire as to how 3 often he worked with or around those products; right? 4 A It's my understanding he worked around them 5 primarily, but yeah, I did not specifically ask for 6 the reasons I've discussed earlier. 7 Q Sure. You didn't get into the different 8 work practices that were used on the gaskets that he 9 was either working with or around, whether it be 10 scraping, wire brushing, power wire brushing, 11 etcetera Fair? 12 A Yes. 13 Q What are you doing in the few weeks after 14 June 14? 15 A I will be on a mission trip to Costa Rica. 16 Q So you're going to be out of the country 17 which is why we're taking your video? 18 A Right. 19 Q You were asked about some professional 20 awards. I want to ask about a few professional awards 21 that Mr. Tivin did not ask you about. They are, looks 22 like you have two at least closest to the pin or 23 closest to the hole golf awards displayed prominently 24 in your office. Is that fair? 25 A That is the only two. 32 1 Q The only two. So you're telling the ladies 2 and gentlemen of the jury you have not done any better 3 than two closest to the hole awards? 4 A That is correct. I have not. 5 Q Looking at your report now, do you have a 6 copy of that? 7 A I do. 8 Q You went through with Mr. Tivin a series of 9 other conditions that Mr. Johnston had. You're not 10 saying in any way that any of those contributed to the 11 development of his mesothelioma; correct? 12 A That's correct. 13 Q In fact, we can agree he had malignant 14 mesothelioma of the pleura; right? 15 A Yes. 16 Q It was from asbestos;right? 17 A Yes. 18 Q He died from malignant mesothelioma; 19 correct? 20 A Yes. 21 Q So asbestos was the direct cause of his 22 death. True? 23 A No. The direct cause of his death was the 24 tumor. Indirectly was asbestos, because that's what 25 caused the tumor; but the direct cause was the tumor. 33 1 Q The tumor would not have existed but for 2 asbestos exposure. True? 3 A Probably not. 4 Q Let me ask you a few other questions about 5 your report. If you go to page 2 of your report, the 6 second paragraph, you're talking about - 7 A Second full paragraph? 8 Q The first full paragraph. You talk about 9 Dr. Dodson's report that I assume you've reviewed? 10 A Yes. 11 Q It said that light microscope evaluation of 12 the lung tissue digestate indicated the presence of 80 13 asbestos bodies per gram wet lung tissue. Can you 14 categorize that in your opinion as to how high above 15 background that is? 16 A That's probably about four times the upper 17 limit of background in most laboratories, maybe three. 18 It's a fairly mild increase given what we often see, 19 but it is clearly significantly above background. 20 Q And can all asbestos fiber types cause 21 asbestos bodies? 22 A It's possible almost all of them in North 23 America are based on amphiboles, but a couple percent 24 are based on chrysotile. 25 Q So the answer is yes to my question? 34 1 A It's possible, but realistically, if you see 2 an asbestos body, you know there's a 98 percent chance 3 it's going to be amphibole. 4 Q Asbestos bodies can be formed from 5 chrysotile; correct? 6 A Yes. They can. 7 Q The next sentence transmission electron 8 microscopy demonstrated an amosite fiber that was 9 indicative of 4097.5 fibers per gram wet lung tissue. 10 Can you characterize for us how much above background 11 that is? 12 A I would have to know what Dr. Dodson's 13 control study showed for the general population, but 14 again, that's a relatively mild increase over general 15 background; but it's still significantly increased. 16 Q But you can't tell you how much increased, 17 because you don't know his control for background? 18 A Yeah. I don't know what his numbers are for 19 his upper limit of background. 20 Q Did he include those in his report? 21 A No. 22 Q If you skip down to the second to last 23 paragraph. 24 A Okay. 25 Q Just a few sentences. It says that the 35 1 asbestos burden analysis performed on Mr. Johnston's 2 lung tissue confirms exposure to amphibole asbestos 3 amosite in excess of background. You can't tell us 4 how much in excess of background? 5 A Not the fibers. The asbestos bodies as I 6 said about four times the upper limit of what most 7 people's laboratories have as their upper limit of the 8 background. 9 Q But all you can say for the specific type 10 that was identified is it's elevated, but you don't 11 know how much it's elevated? 12 A Yeah. I can't tell you. It's not elevated 13 a huge amount, but exactly kind of what the number is 14 now, I can't tell you. 15 Q You also state there's accumulated 16 scientific information that these tumors, 17 mesothelioma, are caused by a contaminating amphibole 18 most commonly tremolite rather than the chrysotile 19 fibers. Let me ask you this question. If you find 20 tremolite in somebody's lungs, is that more likely 21 than not an indication of chrysotile exposure? 22 A No. I don't think you can say that. There 23 are other possible sources for it. 24 Q Such as? 25 A You'd have to look at the scenario. 36 1 Q Such as? 2 A Vermiculite would be one. Talc in some of 3 the talc mines would be one you'd have to consider. 4 Q Do you know whether or not Mr. Johnston was 5 exposed to vermiculite? 6 A I don't know if he was or not. 7 Q Do you know whether or not he was exposed to 8 talc-containing tremolite? 9 A I don't know the answer to that. 10 Q Do you know whether or not tremolite was 11 found in his lungs? 12 A Dr. Dodson didn't find any. 13 Q Have you been shown the report by Dr. Ron 14 Gordon? 15 A I saw it just before we started today. 16 Q And Dr. Gordon found crocidolite, tremolite, 17 amosite, and chrysotile; correct? 18 A That's correct. 19 Q Can you tell the jury what the source of the 20 tremolite would be in Mr. Johnston's lungs? 21 A No. 22 Q Do you have evidence it was from talc? 23 A I don't have any evidence where it was from. 24 Q Including talc? 25 A Including talc. 37 1 Q You don't have any evidence it was from 2 vermiculite; right? 3 A That's correct. 4 Q You testified you know he had exposure to 5 chrysotile asbestos; correct? 6 A Yes. 7 Q Have you seen bulk sampling of John Crane 8 products where tremolite, actinolite, and 9 anthophyllite have been found? 10 A I don't know that I have. 11 Q They've not shown you those studies? 12 A I've seen bulk sampling studies from gaskets 13 and packing, but I don't know what company they were. 14 Q You can't testify that you've seen any bulk 15 sampling or analysis of John Crane chrysotile 16 products; correct? 17 A Yeah. Without going to look up at the date 18 again and see if they tell what the source is I can't. 19 Q And you certainly have not been shown any 20 studies by the John Crane lawyers. Fair? 21 A Not that I recall. 22 Q You haven't done any of that analysis on 23 your own; correct? 24 A Right. It's all been done by industrial 25 hygienists. 38 1 Q Do you dispute any of the findings of 2 Dr. Gordon's report? 3 A I don't know what the raw data is, so I 4 don't have anything to really offer an opinion about 5 whether it's correct or incorrect. Off the top of my 6 head, I have no reason to say it's incorrect. I can't 7 explain the discrepancy between his and Dodson's. 8 Q Well, certainly if you look at different 9 parts of tissues, you would expect to find different 10 fiber levels and different fiber types? 11 A Usually you don't find different fiber 12 types. If you're look at a different part of the lung 13 and looking at enough lung, it's not unusual to have a 14 discrepancy in the amount you're finding, because 15 there's not even distribution; but it would be unusual 16 to have such a difference in the fiber type analysis. 17 Q Well, another factor would be what type of 18 analysis you're looking at; right? 19 A Well, I think both of them are using 20 transmission electron microscopy, so they're using the 21 same testing. They're using the same techniques. 22 Q Did both of them using X-ray fraction? 23 A I don't recall what they used to analyze 24 fiber type; but as I recall, both used accepted 25 methodologies. 39 1 Q Did they both use the same type of analysis? 2 A Transmission electron microscopy, yes. 3 Q Well, there's more than one type of that; 4 right? 5 A Of transmission? No. It's a basic 6 transmission electron microscopy. 7 Q Can you use a transmission electron 8 microscopy to use spectrometry? 9 A That's a different attachment onto the 10 scope. 11 Q Sure. 12 A Yeah. That characterizes what type of fiber 13 there is. There are different ways to do that. 14 Q My question is did they do the same thing? 15 A I don't recall whether they used the same 16 techniques. I do recall they both used accepted 17 techniques. I just don't recall if they used the same 18 ones. 19 Q If Mr. Johnston had crocidolite in his lung, 20 would that be a contributed cause of his mesothelioma? 21 A Obviously, if it was above background, yes. 22 Q Do you recall from looking at Dr. Gordon's 23 report whether it was above background? 24 A He doesn't give his control background 25 levels either, but just doing some rough calculation 40 1 on it, it seemed to be. 2 Q You also stated in your report that it's my 3 opinion that Mr. Johnston's pleural malignant 4 mesothelioma was more likely than not caused by 5 occupational/paraoccupational exposure to amphibole 6 asbestos, paren, amosite, and was not caused or 7 contributed to by any chrysotile dust derived from 8 John Crane gaskets/packing to which he may have been 9 exposed. Can you identify any of the brand names of 10 any of the products containing amosite to which you 11 believe Mr. Johnston's was exposed? 12 A No. 13 Q Can you identify the percentage by volume or 14 weight of amosite in any of the products to which you 15 believe he was exposed? 16 A No. 17 Q Can you identify the frequency, proximity, 18 or duration of the exposure to Mr. Johnston of any 19 amosite containing product? 20 A No. 21 Q I've read to you some excerpts from 22 Mr. Johnston's deposition, and you have agreed that he 23 did have exposure to chrysotile from John Crane 24 products. That is actual exposure, that's no longer 25 alleged; correct? 41 1 A I mean there's not objective evidence that 2 he did in the sense that you can measure it, but I 3 don't have any reason to think that there was not some 4 trivial exposure assuming his statements were 5 accurate. 6 Q You don't dispute what he testified to? 7 A I haven't read it, so I don't have an 8 opinion one way or the other. 9 Q You don't have any suspicion having not read 10 it that he's not being truthful? 11 A Yeah. I don't have any undue suspicion for 12 that. 13 Q You said when Mr. Tivin or the John Crane 14 lawyers came to you and they asked you to be involved 15 in this case, the question they asked you was whether 16 gaskets and packing played a role in Mr. Johnston's 17 mesothelioma. Do you recall testifying to that? 18 A Whether John Crane gaskets and packing. 19 Q Sure. Before you reviewed any materials in 20 the case, you knew what your answer was going to be to 21 that question; correct? 22 A Yes. 23 Q You knew the answer to that question would 24 be no? 25 A That's correct. 42 1 Q Before looking at any medical records, any 2 depositions, anything, you knew you were going to say 3 no? 4 A Assuming there was malignant mesothelioma, 5 yeah, gaskets and packing from John Crane was not 6 going to cause it. 7 Q Do you know whether or not Mr. Johnston had 8 any exposure to crocidolite John Crane packing or 9 gasket products? 10 A I see no evidence that he did. Certainly, 11 if he did, it wouldn't account for Dr. Gordon's 12 number. You couldn't get that number using gaskets 13 and packing; but whether there was any or not, you 14 could speculate pretty much, but I've seen no 15 indication that he was. 16 Q Sure. You have to speculate, because you 17 haven't read the deposition; right? 18 A Or I've not seen objective evidence that 19 they were even there, if they existed even. 20 Q Sure. Did you ask John Crane for invoices 21 or for any information as to the products they had 22 made that contained crocidolite, what operations they 23 worked on, or anything like that? 24 A No. 25 Q You said that the amount of crocidolite that 43 1 Dr. Gordon found would not account for solely on the 2 basis of gaskets or packing may or may not contain 3 crocidolite? 4 A Right. 5 Q You're not saying they couldn't contribute 6 to the number, you're saying they wouldn't, the whole 7 number? 8 A Yeah. You probably wouldn't get a 9 measurable difference by using gaskets and packing. 10 Q What do you mean by measurable difference? 11 A It's such a tiny exposure, especially 12 someone whose not directly working with it every day. 13 If you measured somebody's lungs, you would be in 14 background. You'd never be able to recognize it. 15 Q Are you saying that it's impossible to get a 16 substantial exposure to asbestos from gaskets and 17 packing work? 18 A Using them in the usual fashion with the 19 exception of cutting sheet gasket with a bandsaw, 20 yeah, that is correct. 21 Q So it's your opinion that you can't get 22 substantial exposure to asbestos from scraping off a 23 gasket? 24 A Yeah. Everything is below the current PEL. 25 Q You're saying that you can't get substantial 44 1 exposure from wire brushing off a gasket? 2 A Right. 3 Q You're saying you can't get substantial 4 exposure from power wire brushing off a gasket. True? 5 A Right. 6 Q You can't get substantial exposure from 7 pulling packing out of a piece of equipment; correct? 8 A Right. 9 Q You said because all of those exposures are 10 under the PEL? 11 A They're substantially under the PEL. It's 12 not because they're under the PEL. That's just a 13 reference point. It's because when you measure them, 14 if you find any at all, it's usually at least in an 15 the order of magnitude -- so you're talking in the 16 hundred's or thousand's of fiber per CC on a time 17 related average. 18 Q Isn't the amount of fibers in the air 19 dependent on the work you're doing, how many gaskets 20 or packing projects you do? 21 A No. It's not what's in the air. That will 22 give you a time difference, but it doesn't add more to 23 the air; because you don't really work on one at a 24 time. That's what's -- in the air. Again, you go to 25 another one, that's what will be in the air. It's not 45 1 like it's all in the air at a time, and you're adding 2 to it. 3 Q So if you work on one gasket, and then you 4 do a time weighted average over eight hours on one 5 day, then on day two you work on two gaskets, and you 6 do a time weighted average over eight hours, your 7 exposure is the same? 8 A No. You'll have more. 9 Q You have twice as much exposure; correct? 10 A Right. 11 Q If you do 10 gaskets on one day and 20 12 gaskets on the next day, you have twice as many 13 exposure on the next day? 14 A Theoretically. 15 Q More likely than not, that's the truth. 16 True? 17 A There's all kinds of other factors you have 18 to consider with air flow and differential release, so 19 it's not quite that neat to do it mathematically. 20 Q But if you work on more gaskets, you're 21 going to have more exposure? 22 A Right. 23 Q Okay. You state in your report that, and 24 you have stated here I believe that the use of 25 encapsulated chrysotile containing gaskets, slash, 46 1 packing is associated with the airborne release of 2 chrysotile dust within the current PEL .1 fibers per 3 CC. What's the support for that? 4 A That's the current PEL. 5 Q What's the support for your conclusion that 6 it's associated with airborne release of chrysotile 7 dust within the current PEL? 8 A There's a number of studies that have looked 9 at that. Mangold has looked at that. Bolter has 10 looked at it. Spencer, Spence, Lukinen, I think it's 11 been reviewed by Postenbach. I think those are the 12 ones I recall. 13 Q What about McKinnery and Moore? 14 A McKinnery and Moore, they had a higher 15 number, but it's out of line with everybody else's; 16 and the industrial hygienists have the explanation 17 why. I look at kind of what fits together. Outliers 18 I tend to disregard. 19 Q What about Chang and McDermott, are they 20 another outlier? 21 A Again, there was something about the way 22 they were doing it, the industrial hygienists have 23 looked at. But using current techniques and current 24 measurement methodologies, the numbers are uniformly 25 low. 47 1 Q What about Millet Mountain Haze, is that an 2 outlier? 3 A The Milette was using a little chamber. I'd 4 have to go back and look at it, but there are major 5 problems with that particular study. 6 Q Longo study is an outlier too? 7 A I'd have to look at it. 8 Q Can you specifically name any problems with 9 any of the methodology for any of the studies that 10 I've just mentioned to you? 11 A As I recall, some of them there was filter 12 overload on a number of them. 13 Q That's not a methodology problem? 14 A That is a methodology problem. That 15 shouldn't happen. You don't get an appropriate answer 16 when you have filter overload. 17 Q Did they actually try to count filters that 18 were overloaded? 19 A I don't recall, but that was one of the 20 criticisms. 21 Q By who? 22 A I don't recall. I'd have to go back and 23 look at all the articles again. 24 Q So there are criticisms, but you don't know 25 by whom? 48 1 A Not off the top of my head. 2 Q You're aware every single name I mentioned, 3 they were all published in peer review literature; 4 correct? 5 A I don't recall if all of them were in peer 6 literature. I'd have to look at them. 7 Q So you don't whether or not they were all in 8 peer review? 9 A I don't know if all of them. Some of them 10 11 Q Have you ever published a criticism of any 12 of those papers? 13 A No. I don't have enough knowledge to do 14 that. I would refer to the industrial hygienists. 15 Q Sir, do you rely on -- you mentioned the 16 Bolter paper. Do you rely on the Bolter paper that 17 the proposition that the use of gaskets and packing is 18 associated with the airborne release of chrysotile 19 dust within the current PEL .5 fibers CC? 20 A Some of Bolter's work, yeah. 21 Q Specifically what? 22 A He's done some removal of gaskets from 23 industrial maritime old equipment. 24 Q Do you know whether or not the gaskets that 25 he was working on just fell out or whether they had to 49 1 actually be worked to get the residue off the flanges? 2 A I'd have to go back and read them. 3 Q Sure. Have you seen Mr. Bolter's 4 correspondence with OSHA about his reports? 5 A No. 6 Q Let me just ask you if you've seen this. 7 (Graham Exhibit 3 was marked for identification.) 8 Q (By Mr. Panatier) Sir, I'll hand you Exhibit 9 3. Have you ever seen that letter from OSHA to 10 Frederick Bolter before? 11 A No. 12 Q Going down to the first red underlined 13 statement, what does that say? 14 THE DEFENDANTS: Objection. Form. 15 THE WITNESS: Furthermore, it is our 16 opinion that your data did not demonstrate that 17 the gaskets you examined possess the physical 18 property that these provisions require in order to 19 qualify for exemption from labeling. 20 Q (By Mr. Panatier) Then what's the second 21 part that's underlined say? 22 THE DEFENDANTS: Objection. Form. 23 THE WITNESS: It is a reasonably 24 foreseeable occurrence for a person to perform the 25 same tasks in regard to 10 gaskets instead of 8 50 1 gaskets in an 8-hour period. In that event, a 2 person could be exposed to an 8-hour time weighted 3 average asbestos air concentration that could 4 exceed the 8-hour time weighted average of 0.2 5 fibers per CC. 6 Q (By Mr. Panatier) Now if you need to read 7 more of that, you certainly can. But based on just 8 Fred Bolter's numbers alone, OSHA is saying even 9 using your numbers, it's foreseeable someone could 10 exceed the time weighted average PEL of .01; isn't 11 that correct? 12 A That's what they say. 13 Q You can set that aside, sir. Sir, briefly 14 going back to the subject of tremolite, you've 15 identified talc, vermiculite, and potentially 16 chrysotile as three different sources of tremolite; 17 correct? 18 A Right. 19 Q You're unaware of any talc exposure he had, 20 vermiculite exposure he had, but you are aware he had 21 chrysotile exposure; correct? 22 A Yes. 23 Q As you sit here right now, is it more likely 24 than not that the tremolite in his lungs came from 25 chrysotile products? 51 1 A I don't think you can say that. 2 Q But you can't identify an alternative 3 source; can you? 4 A I can't identify any source for it. 5 Q Okay. Here's the easy part. This is where 6 I ask you questions that I've asked you about before. 7 If you need to see the transcript, this is from the 8 Pelly case in 2007 in Los Angeles, December of 2007 I 9 think. 10 THE DEFENDANTS: I would just object to 11 the - 12 MR. PANATIER: I'll cut it. I'm just 13 telling him. 14 Q (By Mr. Panatier) So if you want to see an 15 answer or a question, I'm happy to show it to you. 16 Sir, just so I can get an update on this year, how 17 many times have you testified in a deposition this 18 year on behalf of asbestos defendants? 19 A I don't know. I don't keep count. We do 20 keep a list. I'll be happy to provide it to you. Off 21 the top of my head, no. 22 Q Do you have that list here? 23 A No. It's at the University. 24 Q Can you just give me a ball park? 25 A Off the top of my head again, it's not 52 1 something I even think about. Once I do them, I just 2 forget them. 3 Q Okay. So is it true then you couldn't tell 4 us whether it's been 5 times, 10 times, 50 times? 5 A I'm sure it's not 50 times. 6 Q Could it be 25 times? 7 A Probably not, but it could be. 8 Q Over the past 34 years, how many times have 9 you testified in deposition on average in asbestos 10 cases for defendants? 11 A You know, I don't know. Again, I don't keep 12 the list. My secretary does. I don't even pay 13 attention to it. 14 Q How many times have you testified at trial 15 this year? 16 A A few. 17 Q Like two? 18 A Two, three, no more than four. 19 Q Where? 20 A I think Los Angeles, yeah, Los Angeles. I 21 think Philadelphia. 22 Q Anywhere elseyou canremember? 23 A Not off the top of my head. I think there 24 may be another one in there, but I don't recall where. 25 Q Do you charge for travel time? 53 1 A I do. 2 Q What's your travel rate? 3 A Same. 4 Q So it's $400 an hour? 5 A Yes. 6 Q For the time that you leave the door til you 7 get to the courthouse or to the hotel? 8 A I don't charge for sleeping and things like 9 that. If I'm traveling and I'm not doing otherwise 10 professional activity, yeah. 11 Q You said the school bills for your time? 12 A Right. 13 Q What percentage of that goes to you direct? 14 A About two-thirds of it. 15 Q All right, in 2007 I asked you over the last 16 six or seven years you billed about $250,000 per year. 17 You said that's about what I earn per year. Fair? 18 A Between 250 and 300. 19 Q Has that remained consistent over the past 20 three years since 2007? 21 A That would be my general sense. Again, I 22 don't calculate that out per year, but that's my 23 general sense. 24 Q As of 2007, you said that you had made 25 approximately $2 million as of 2007 in asbestos 54 1 litigation 2 A You know, again, I don't count, but 3 somewhere in that ball park over the last 25 years 4 now, yeah. 5 Q This was 2007, so since then you've made 6 close to another million dollars. Fair? 7 A No. That's two years. 8 Q Actually, it's 2010. It would have been two 9 and a half years ago. So if you make $250,000 a year, 10 and we're halfway through the third year, that's 11 almost $700,000? 12 A Which is a lot less than a million. 13 Q Okay. Depends on whose counting. So you've 14 made approximately 2.7 plus; right? 15 A Yeah. 16 Q You've testified in hundreds of cases. 17 True? 18 A Over the years, yeah. 19 Q 85 to 90 percent of all your work is done 20 for defendants in asbestos litigation. True? 21 A Yes. 22 Q When was the last time you testified at 23 trial for a plaintiff in asbestos litigation? 24 A A couple of years, three years maybe. 25 Q When is the last time you testified in 55 1 deposition for a plaintiff in asbestos litigation? 2 A Probably about the same. 3 Q I'm going to read off a list of companies 4 you testified for, consulted for in asbestos 5 litigation. You tell me if I name some you haven't 6 worked for. Okay? 7 A Okay. 8 Q You've consulted and/or testified for, Ford, 9 General Motors, Chrysler, Volkswagen, Apex, Borg 10 Warner, Marimount, Bondex, Certainteed, Crane, 11 Durabla, Garloch, CS Railroad, Union Pacific Railroad, 12 Union Carbide, Ingersoll Rand, AB Chesterton, AW 13 Chesterton -- sorry -- Kelly Moore, Owens Illinois, 14 John Crane, Flextalic, Foster Wheeler, and Georgia 15 Pacific. True? 16 A Yes. 17 Q In 2003 some lawyers did a mock trial or a 18 mock testimony for you. True? 19 A I don't remember the year, but I've done 20 one. 21 Q It was kind of like, you were kind of like a 22 witness in a fake asbestos trial. Right? 23 A I don't know if it was really a trial. I 24 mean they, it was an examination of both the cross, or 25 direct and cross; but I don't know that there were 56 1 other aspects of it. But, yeah, it was from a witness 2 standpoint. Yeah. That's what it would have been. 3 Q Okay. Here's what you said. You said, I 4 don't know if it was to see how I handled it. I don't 5 remember what it was, but it was attorneys for 6 Ingersoll Rand had asked me to kind of be a witness in 7 kind of a fake trial. Fair? 8 THE DEFENDANTS: Objection. Form. 9 THE WITNESS: Yeah. From an individual 10 witness perspective, yeah, that would be correct. 11 Q (By Mr. Panatier) You're familiar with the 12 Defense Research Institute; correct? 13 A I am. 14 Q That's civil defense for lawsuits; correct? 15 It's not like national defense. True? 16 A You mean like national strategic defense of 17 the country? Yes. 18 Q So Defense Research Institute - 19 A Yeah. It's primarily a litigation defense 20 oriented organization. 21 Q You've spoken there three times. True? 22 A More than three I think. 23 Q How many times have you spoken there now? 24 A Probably four or five total. 25 Q This was as of 2007 it was three. You've 57 1 done one or two since then? 2 A Yeah. 3 Q You're aware that the slogan of the Defense 4 Research Institute is the voice of the Defense Bar; 5 right? 6 A I've heard that. 7 Q I think I've asked you that before, so 8 that's probably where you've heard it. You're not a 9 pulmonologist; right? 10 A Right. 11 Q You're not an epidemiologist; right? 12 A Correct. 13 Q You're nota mineralogist? 14 A Right. 15 Q You're not an industrial hygienist? 16 A Right. 17 Q You're notan oncologist? 18 A Correct. 19 Q You don't personally conduct epidemiological 20 studies; right? 21 A Correct. 22 Q Never participated in epidemiological study 23 on asbestos. True? 24 A Yes. 25 Q Not a researcher in the area of asbestos; 58 1 correct? 2 A Correct. 3 Q You have no specific training in public 4 health. True? 5 A No more than any other physician would have. 6 Right. 7 Q You don't consider yourself an expert in 8 occupational medicine; correct? 9 A As an occupational medicine practitioner, 10 that's correct. 11 Q You haven't done any epidemiological studies 12 on asbestos or chrysotile asbestos. True? 13 A Right. 14 Q No studies on asbestos inhalation or 15 injection studies in animals. True? 16 A Right. 17 Q How many total publications have you written 18 on asbestos? 19 A Part of one. 20 Q Part of one publication? 21 A Right. 22 Q That was part of a chapter or a paper? 23 A It's sort of both I guess. It's -- it was a 24 publication in sort of a chapter form I guess, and 25 that particular journal has chapter format type 59 1 articles in it. 2 Q When was that? 3 A '98 I think. 4 Q You've not been retained byany regulatory 5 or scientific body to be their go-to expert when they 6 have an issue of asbestos that comes up; right? 7 A Right. 8 Q You've never testifiedbeforeCongress. 9 True? 10 A Right. 11 Q I think you testified in the past that you 12 agree it was generally accepted by 1960 that asbestos 13 caused mesothelioma; correct? 14 A 1960 is when the seminal article that most 15 people would agree indicated that asbestos can cause 16 mesothelioma. 17 Q And you're aware that specifically that 18 article, that's Vogner; right? 19 A That is correct. 20 Q That article actually cited to earlier 21 publications and reports in literature of individuals 22 getting mesothelioma from chrysotile asbestos, 23 specifically the Cartier article? 24 A It referred to other populations, but there 25 were no epidemiological studies. In fact in 1960, a 60 1 lot of people didn't even think that mesothelioma 2 existed. 3 Q The Vogner paper, was that an 4 epidemiological study? 5 A Formally it was not. 6 Q There was no control population; right? 7 A Right. But because of the rarity of the 8 disease, he was kind of lucky; and it kind of worked 9 out to be one almost. But if he would submit that 10 today, it wouldn't be accepted. 11 Q Right. You agree that all forms of asbestos 12 are carcinogenic; correct? 13 A With the exception of calidria chrysotile. 14 Q Calidria is the stuff that was mined by 15 Union Carbide in California? 16 A A particular area of California, yeah. 17 Q You don't believe that that type of asbestos 18 is carcinogenic? 19 A Yeah. It is has not been shown to be 20 carcinogenic in either animals or people. 21 Q The chrysotile asbestos that was going into 22 John Crane gaskets and packing is carcinogenic. True? 23 A It can cause lung canner if it causes 24 asbestosis. 25 Q It does cause asbestosis. True? 61 1 A In high doses. 2 Q Chrysotile can cause pleural plaques. True? 3 A Yes. 4 Q You talked about Mr. Johnston specifically 5 about whether or not he had any indication of pleural 6 plaques or asbestosis. Is it necessary for you to 7 diagnose a person with pleural plaques or asbestosis 8 before you can contribute his mesothelioma to 9 asbestos? 10 A No. 11 Q If fact, you've attributed mesothelioma to 12 asbestos in this case. True? 13 A I have. 14 Q Sir, you've agreed before thatcellular 15 studies shows that chrysotile can alter DNA; right? 16 A Yes. 17 Q Mesothelioma is not caused by smoking. 18 True? 19 A Correct. 20 Q Sir, you've acknowledged in the past that 21 some of the studies of Canadian miners and millers 22 have been funded by the Quebec Asbestos Mining 23 Association. True? 24 A I think some studies in Canada have at least 25 partial funding from the association organization. 62 1 Yeah. 2 Q Specifically, the McDonald's have been 3 funded by QAMA or Q-A-M-A? 4 A Some of their stuff has. Yeah. 5 Q You know that QAMA is an organization that 6 represents asbestos mining companies in Canada? 7 A Right. 8 Q You were asked whether or not there were any 9 studies published that showed that people working with 10 gaskets or packing got asbestosis or mesothelioma. Do 11 you recall that? 12 A Yeah. I do. 13 Q Are you aware of any cohort of workers in 14 the entire world where all they do is work with 15 gaskets or packing? 16 A I mean if you exclude the people who make 17 them, no. 18 Q Well, the people who make them are not 19 grinding off the old gaskets; correct? 20 A I mean there's significant difference 21 between people who make gaskets and people who use 22 them. It wouldn't be appropriate to use data from one 23 to apply to the other, but I'm not aware of any 24 studies of a cohort where they're only exposed to 25 gaskets or packing in the general use of those 63 1 products. 2 Q In fact, in the general use of those 3 products, you might have several different trades who 4 might call upon the use of gaskets or packing as part 5 of their trade, but it certainly wasn't exclusive to 6 their trade? 7 A Right. 8 Q Sir, I just want to ask you about the 9 opinions of certain scientific and regulatory bodies. 10 I've done this before. Sir, do you agree OSHA is of 11 the opinion that chrysotile asbestos causes 12 mesothelioma and that there is no safe level of 13 exposure? 14 A They do -- yeah. That is their opinion. 15 Recognizing that they are basing that on contaminated 16 chrysotile, so they don't address the issue of 17 uncontaminated chrysotile. But contaminated 18 chrysotile, yeah, they do. 19 Q Can you site to me or provide me with 20 something where OSHA has specifically said our opinion 21 that chrysotile causes mesothelioma only applies to 22 contaminated chrysotile and not pure chrysotile? 23 A Yeah. If you look at their documents and 24 look at what they're referring to in the -25 Q Which document? 64 1 A The OSHA documents. 2 Q Well, there's lots of them. Thousands of 3 them. If you tell me which one we can look at - 4 A Obviously, off the top of my head, I 5 wouldn't memorize all the OSHA documents. But as you 6 look through the regulatory documents from any of the 7 agencies, they cite back to the Canadian miners and 8 millers. Everybody recognizes those are contaminated 9 sources. And in the timeframe where those opinions of 10 those regulatory agencies came out, there had been no 11 studies of exposures of populations to pure chrysotile 12 which are available now. At least there's one 13 available now. 14 Q Where does pure chrysotile come from? 15 A Well, there's calidria is one source, but 16 also there's one of the mines in South America which 17 has been shown to be uncontaminated and where there's 18 a worker cohort that's been studied. A couple of the 19 mines in Canada are uncontaminated, but as far as I 20 know the workers to those mines specifically have not 21 been studied, or because of workplace shifts, you 22 can't assume that they're exposed only to the 23 uncontaminated forms. But the one mine in South 24 America -25 Q Let me go rewind just a minute. Are you 65 1 aware of any statement by OSHA where they have said 2 only contaminated chrysotile causes mesothelioma? 3 A I'm not aware that OSHA ever addressed that 4 issue. Again, when you looking at the underlying data 5 for all the regulating agencies, it's all related 6 exposure of the contaminate. 7 Q Has OSHA said only contaminated chrysotile 8 causes mesothelioma? 9 A No. They have not addressed the issue. 10 Q In fact, OSHA has said chrysotile causes 11 mesothelioma. True? 12 A Chrysotile recognizing that the underlying 13 basis for that statement is contaminated chrysotile. 14 Q You're the one recognizing that, not OSHA? 15 A No. They recognize it, because they cite 16 those articles; and those populations are recognized 17 as being contaminated chrysotile populations. 18 Q Their statements after distilling everything 19 they have reviewed are that chrysotile causes 20 mesothelioma in human beings? 21 THE DEFENDANTS: Objection form. 22 THE WITNESS: Right. And that would 23 predispose that it's contaminated. They have not 24 addressed the issue at all and have not considered 25 data from uncontaminated sources. It wasn't in 66 1 existence when that opinion came out. 2 MR. PANATIER: I'm just going to object 3 as to unresponsive. 4 Q (By Mr. Panatier) OSHA stated chrysotile 5 causes asbestos? 6 A That is their statement. 7 THE DEFENDANTS: Objection. Form. 8 Q (By Mr. Panatier) OSHA has also stated there 9 is no safe level of exposure from chrysotile; 10 correct? 11 A There's been none identified. 12 Q You're aware of the Consumer Product Safety 13 Commission is of the opinion that chrysotile causes 14 mesothelioma; correct? 15 A Again, based on contaminated sources, yes. 16 MR. PANATIER: I'm just going to object 17 as nonresponsive. 18 Q (By Mr. Panatier) They have stated 19 chrysotile causes mesothelioma; correct? 20 A They have stated chrysotile causes 21 mesothelioma, but recognizing contaminated chrysotile. 22 MR. PANATIER: Just object to the 23 unresponsive portion. 24 Q (By Mr. Panatier) Sir, you understand the 25 International Agency on Research for Cancer is of 67 1 the position that chrysotile causes mesothelioma; 2 correct? 3 A Again, they recognize that chrysotile 4 including contaminated chrysotile causes mesothelioma. 5 Q Have you reviewed the special report for the 6 International Agency on Research for Cancer from 2009, 7 May? 8 A I don't think so. 9 Q They state epidemiological evidence has 10 increasingly shown that association of all forms of 11 asbestos, chrysotile, crocidolite, amosite, tremolite, 12 actinolite, and anthophyllite with an increased risk 13 of lung cancer in mesothelioma. Do you agree or 14 disagree with that statement? 15 THE DEFENDANTS: Objection. Form. 16 THE WITNESS: Yeah. I agree with it. 17 Q (By Mr. Panatier) Sir, you're aware that 18 World Health Organization has concluded that 19 chrysotile causes mesothelioma? 20 A I have. Again, recognizing they are 21 considering contaminated chrysotile in that population 22 or those populations. 23 MR. PANATIER: Objection. 24 Non-responsive. 25 Q (By Mr. Panatier) So here's what I'm going 68 1 to do. You were asked on December 4, 2007, this 2 question, you agree, sir, that OSHA is of the 3 position that chrysotile asbestos causes 4 mesothelioma; correct? And your answer was yes; 5 correct? 6 A Yes. 7 Q You were asked the question, you are aware 8 that the Consumer Product Safety Commission is of the 9 opinion that chrysotile causes mesothelioma; correct? 10 Your answer was yes; correct? 11 A Yes. 12 THE DEFENDANTS: Objection. Form. 13 Improper impeachment. 14 Q (By Mr. Panatier) Sir, you were asked in 15 2007, the International Agency of Research on Cancer 16 were of the position that chrysotile causes 17 mesothelioma? Your answer was yes; correct? 18 THE DEFENDANTS: Objection. Form. 19 Improper impeachment. 20 THE WITNESS: Yes. 21 Q (By Mr. Panatier) Same with the World Health 22 Organization, your answer was yes? 23 A Yes. 24 THE DEFENDANTS: Same objection. 25 Q (By Mr. Panatier) You don't dispute those 69 1 were your answers in 2007? 2 A No. My opinion is still the same today, 3 that contaminated chrysotile can cause mesothelioma; 4 and most people when we use the term chrysotile 5 recognize that there may be contamination. 6 Q Looking at what I just read from on that 7 page, I think it's page 868 to page 869, did you state 8 yes, but they only mean contaminated chrysotile and 9 not pure chrysotile? 10 THE DEFENDANTS: Objection. Form. 11 THE WITNESS: Obviously, I'd have to 12 read through the deposition to see. 13 Q (By Mr. Panatier) Sorry. That was at trial 14 testimony. Sorry. As you look at their documents 15 and what they based them on, invariably they 16 included the Canadian population, and that's all 17 contaminated chrysotile, or those populations have 18 contaminated chrysotile. If they're using that data 19 to make these statements, then they're considered 20 and not addressing the issue of uncontaminated. Did 21 I read those questions and your answers correctly? 22 THE DEFENDANTS: Objection. Improper 23 impeachment. Can we switch now? 24 MR. PANATIER: No. 25 Q (By Mr. Panatier) Sir, where did John Crane 70 1 get their chrysotile asbestos from? 2 A I don't know. 3 Q Have you asked them? 4 A No. 5 Q You make a big distinction between 6 contaminated and uncontaminated chrysotile; right? 7 A Right. 8 Q You don't know where theirs came from? 9 A I don't know if it's important where it came 10 from. You'd want to know what actually goes into the 11 product and whether the product itself is 12 contaminated; because it's contaminated coming out of 13 the ground doesn't mean it's contaminated after 14 mining. 15 Q Are you aware of some way that's been 16 invented to take tremolite or actinolite or 17 anthophyllite out of the final product? 18 A The milling process removes at least some if 19 not all of the amphibole from different fractions. 20 Q How does it do that? 21 A Because -- you'd have to ask the milling 22 people the technical aspects of it. They don't want 23 those types of contaminants in the final product, 24 because it's not the type of fiber they're looking 25 for. So they use differentials in the way they float 71 1 and some other things. 2 Q Can you point me to any publication or 3 article at all that says that that actually gets done 4 where in the milling process they can remove all the 5 contaminants? 6 A You can see that, because there's at least 7 has been one study of the B sample of chrysotile which 8 is a mixture from different Canadian mines where 9 there's been no amphibole found. That's been looked 10 at by a number of researchers. 11 Q Who? 12 A I think Dr. Dodson has looked at it, 13 either -- I think Dr. Langert has looked at it. 14 Q Do you have those articles here? I mean 15 we're in your office; right? 16 A We're in my office at the Medical Examiner's 17 Office. No. I don't have those articles here. 18 Q This is your office? These are your golf 19 trophies; right? 20 A This is one of my offices. Most of my 21 literature is as you know at my University office. 22 Q Your literature is relevant to this 23 examination; right? 24 A I certainly did not anticipate that you 25 would be asking me about the Canadian B sample, and 72 1 I'm sure you're well aware of those studies anyway. 2 Q Unfortunately, I'm not testifying. You are. 3 So I'm asking you about them. You don't have them 4 here; right? 5 A No, I don't. 6 MR. PANATIER: Let's switch tapes. 7 (Whereupon, a moment was taken off the record.) 8 Q (By Mr. Panatier) Sir, you had said that 9 the -- let me start over. Sir, you said that 4097.5 10 fibers per gram wet that Dr. Dodson found was 11 elevated; correct? 12 A Yes. 13 Q You're able to say it's elevated, but not 14 how much elevated over background; correct? 15 A That's correct. 16 Q Now in Dr. Gordon's report, you said you saw 17 that? 18 A I saw it just before thedeposition today. 19 Q He said that he found22,623 fibers per gram 20 wet. That's substantially elevated above background; 21 correct? 22 A I mean it's above what I would expect to be 23 background. Again, I don't know what his control 24 population showed, but yeah, I would expect that. I 25 don't know if I would use -- it's significantly above 73 1 background. Again, it's not a huge amount of fiber, 2 but it is more than the average person would have 3 walking around. 4 Q It's consistent with someone who has 5 asbestos exposure in an occupational sense? 6 A Oh, sure. Both analyses are consistent with 7 that. 8 Q He said that he found chrysotile, 9 crocidolite, amosite, and tremolite in a ratio of 2 to 10 1 to 1to 1. 11 A Right. 12 Q So the fiber that he found the most of as an 13 individual category was chrysotile. True? 14 A Right. 15 Q Then he found equal amounts in the area he 16 looked of crocidolite, amosite, and tremolite. Fair? 17 A That's what he reports, yes. 18 Q Sir, do you agree all exposures to amphibole 19 asbestos whether it be crocidolite, amosite, 20 tremolite, actinolite, or anthophyllite can contribute 21 to the development of mesothelioma? 22 A I wouldn't expect background NorthAmerican 23 level exposures to contribute. That's not ever been 24 shown. 25 Q Let me ask you a better question. Excluding 74 1 background exposures to asbestos, do you agree all 2 exposed amphibole asbestos -- crocidolite, amosite, 3 tremolite, actinolite, or anthophyllite -- contribute 4 to the development of a person's mesothelioma? 5 A No. Again, even in occupational exposure 6 where you're effectively at background or historical 7 background concentration, I wouldn't expect to 8 contribute. Above that, you would have to look at how 9 often you're exposed over that; but if it's on a daily 10 basis or over a long period of time, it's above 11 traditional background, yeah, I would. 12 Q You've done no such analysis in this case 13 for Mr. Johnston to determine what his working period 14 of time was or concentration or frequency was for any 15 type of asbestos product; correct? 16 A Yeah. The opinion is primarily based on the 17 fiber burden analysis or the causation opinion. 18 Q Right. You have done really no work to 19 determine his occupational history in his testimony. 20 True? 21 A Right. 22 Q Do you agree there's no known safe level of 23 exposure to crocidolite? 24 A I wouldn't agree with that. Very, very low 25 levels of exposure have not been shown to cause any 75 1 disease. Crocidolite is potent at fairly low levels, 2 certainly theoretically could give you mesothelioma. 3 Q Sir, let me know if you want to see this. 4 This is your testimony. It's in the case of I don't 5 know how -- Dennis, it's Ciocao, C-I-O-C-A-O. I don't 6 know how to say that. 7 A Okay. 8 Q Ciocao. This is from August 31, 2009. And 9 I'll show this to you if you want to see it. You were 10 asked this question. Doctor, is there safe levels of 11 exposure to asbestos? Answer, yes. Question, what is 12 it? Your answer, I think it depends on the fiber 13 type. I'm not sure we know what it is for 14 crocidolite. Although, we do not recognize, one 15 fiber -- although, we do recognize that one fiber 16 doesn't hurt anybody, so there's a safe level. 17 Exactly what the lowest safe level is, I don't think 18 we know especially for the amphiboles. Is that still 19 your opinion? 20 THE DEFENDANTS: Objection to form. 21 THE WITNESS: Yes. 22 Q (By Mr. Panatier) So you don't know what a 23 safe level would be for crocidolite. Fair? 24 A We don't know what the minimum amount is 25 that would be considered safe. We know it exists. We 76 1 know that it's low, but we don't know what the number 2 is. The lowest number that I have again seen in the 3 literature related to the development of mesothelioma 4 is down around 0.3 or zero point fiber years. Some 5 people speculated it might be as low as 0.1. In the 6 published data, I think it's about 0.3. 7 Again, it's very low, but there is a level 8 where, for example, background in North America where 9 you find low crocidolite in people. It's not 10 considered to have an effect. 11 Q Right. You think there may be a level, but 12 you don't know what it is? 13 A We don't know what the number is, yeah. 14 Q Can you identify any specific product that 15 would be the source of the tremolite, the amosite, or 16 the crocidolite in Mr. Johnston's lungs? 17 A No. 18 Q But you can identify a source of a potential 19 source of the chrysotile in his lungs, because you 20 know he was exposed to John Crane chrysotile asbestos 21 gaskets and packing; right? 22 A Yeah. You mentioned a particular product, 23 and that would not be the source of what is found in 24 there. You would not get that much in the lungs, but 25 it is a potential source of chrysotile. 77 1 Q Certainly he had a potential of more than 2 just one exposure to a type of chrysotile product; 3 right? I mean in that setting we know about the John 4 Crane products, but he probably had exposures to other 5 chrysotile products. Fair? 6 A At least chrysotile containing products. It 7 may not be necessarily only chrysotile containing 8 products, but I would expect other sources of 9 chrysotile. 10 Q Including the John Crane. True? 11 A I'm not sure that any of the John Crane 12 would be measurable in here, but it would be at least 13 a mathematical source. 14 Q Have you ever seen any studies, air studies, 15 or work practice studies of John Crane products? 16 A Again, I'd have to go back and look at the 17 ones I cited and see if they're related to John Crane 18 or some other company. 19 Q As you sit here today, you can't say you've 20 actually seen any work studies done on John Crane 21 products? 22 A Yeah. I don't know if I have or not, 23 because I don't know what companies were used for 24 those studies. 25 So you don't know as you sit here what the Q 78 1 fiber release would be for a John Crane product. 2 Fair? 3 A Again, as I talked about before, the way the 4 literature indicates, it's all very low no matter the 5 company. 6 Q I'm just asking you if you know what the 7 fiber release would be for a John Crane asbestos or 8 packing product? 9 A Again, I would expect it to be very low 10 unless you can show me data otherwise. 11 Q I am not actually here to produce data. You 12 are, because you're the expert witness. Do you have a 13 study? 14 THE DEFENDANTS: Objection. Form. 15 THE WITNESS: As I said, all of the 16 studies that fit together show uniformly low 17 release; and it, I don't see anything that seemed 18 to be company specific. 19 Q (By Mr. Panatier) What do you define as low 20 release? 21 A Those were -- some of them had no release, 22 and some studies was like I think .02, then everything 23 in between. 24 Q What makes something a low release to you as 25 opposed to a higher release of asbestos? 79 1 A Friable products would result in high 2 release. Encapsulated products, it's very low 3 numbers. I arbitrarily just use the current PEL for 4 low release, but obviously, they can get much lower 5 than that. 6 Q And they can get higher than that. True? 7 A Well, sure. 8 Q In fact, OSHA told Fred Bolter that using 9 his numbers, someone could experience asbestos 10 exposure above the time weighted average; correct? 11 THE DEFENDANTS: Objection. Form. 12 THE WITNESS: Instead of using his 13 numbers, somebody could. They've never 14 demonstrated anybody has, but they're basically 15 taking the highest in assuming the worse case 16 scenario even though it wouldn't be associated 17 with an increased risk of disease. 18 Q (By Mr. Panatier) When you're talking about 19 risk of disease, once someone has the disease, 20 you're no longer talking about the risk? 21 A There is no risk. You're talking about 22 they've got it. 23 Q You've got the disease. Make sure I've got 24 through everything. We don't need to go off the 25 record or anything, but it just might take a second. 80 1 Few more questions. Sir, in all fairness, would you 2 agree that really outside the courtroom, you're not 3 really out there as an asbestos expert? 4 THE DEFENDANTS: Objection. Form. 5 THE WITNESS: No. Outside -- I mean I'm 6 a forensic pathologist. Pretty much everything I 7 do has some sort of medical/legal bearing, and a 8 big part of my practice is asbestos. I'm not a 9 researcher in asbestos, but a substantial part of 10 my practice is evaluating asbestos-related 11 disease. 12 Q (By Mr. Panatier) Of your forensic pathology 13 practice? 14 A Yeah. 15 Q I mean -- and maybe I just watch too much 16 CSI, but we're in the office of the Medical Examiner. 17 That's you; right? 18 A I am. 19 Q And as the Medical Examiner, you like 20 evaluate the cause of death for people; right? 21 A When I'm acting as a Medical Examiner, yeah. 22 Q As a forensic pathologist, you're trying to 23 determine what a disease is or what caused it? 24 A Yeah. In many cases, yeah. 25 Q And just in a given year, how many cases do 81 1 you see as a Medical Examiner or forensic pathologist 2 that have to do with mesothelioma that don't come from 3 an attorney? 4 A Oh, very few. 5 Q Like how many? 6 A As a forensic pathologist, that's what I am, 7 I'll probably see a half dozen or so a year through 8 the hospital. As a Medical Examiner, I would not 9 expect to see any. 10 Q Right. So you might see half a dozen 11 through the hospital compared to - 12 A Right. 13 Q What? Fifty, a hundred that you might see 14 through litigation? 15 A Yeah. Over a hundred probably. 16 Q So would it be fair to say thatyou're more 17 of an asbestos expert in the courtroom than outside of 18 it? 19 A No. Because many of the cases I evaluate 20 never get to a courtroom. I give my opinion, and 21 that's kind of the end of my involvement in the case. 22 Q But it's your opinion that you give to 23 lawyers; right? 24 A Sure. 25 Q And for the most part 85, 90 percent of it 82 1 is defense lawyers in asbestos litigation. True? 2 A That's who I give my opinion to, yeah. They 3 don't always like it, but they get it. 4 Q When was the last time if at all that you 5 testified in a deposition or at trial that a 6 defendant's chrysotile product contributed to a 7 person's mesothelioma? 8 A Don't remember. 9 Q Have you ever done that? 10 A I think I've been asked -- I know I've been 11 asked a hypothetical that assumed that it was 12 contaminated chrysotile, and there was heavy exposure; 13 and would I attribute, and I did. And I don't 14 remember whether it was ever established that it was, 15 but that was the hypothetical that was given. 16 Q So what you can cite to me here is that in a 17 hypothetical you were given, you were able to 18 hypothetically attribute someone's mesothelioma to 19 contaminated chrysotile under certain circumstances. 20 Fair? 21 A Yes. 22 MR. PANATIER: I think that's all I 23 have. Thank you, sir. 24 MS. ECKERT: I don't have any questions. 25 MR. TIVIN: Does anyone on the phone 83 1 have any questions? 2 MR. SPRAGUE: This is Wes Sprague. I 3 actually have a couple questions. Only take three 4 or four questions I guess. 5 MR. TIVIN: Off the record. 6 (Whereupon, a moment was taken off the record.) 7 CROSS-EXAMINATION 8 QUESTIONS BY MR. SPRAGUE: 9 Q Doctor, my name is Wes Sprague. I have a 10 few questions for you. Can you hear me okay? 11 A Just fine. 12 Q Good deal. Baseduponyourreview of 13 information in relation to asbestos cases, are you 14 familiar with general uses for gaskets and packing? 15 A In general. 16 Q Are you aware that John Crane gaskets and 17 packing can be used in conjunction with pumps and 18 valves? 19 A Yes. 20 Q Would your opinion that John Crane gaskets 21 and packing did not cause Mr. Johnston's mesothelioma 22 remain the same regardless of what type of pump or 23 valve that John Crane gaskets and packing were used 24 in? 25 A That's correct. 84 1 Q Would your opinion remain the same 2 regardless of who manufactured the pumps or valves 3 that the John Crane gaskets and packing were used in? 4 A Same opinion. 5 MR. SPRAGUE: Thank you, Doctor. That's 6 all I have. 7 MR. PANATIER: Anybody else on the 8 phone? 9 MR. TIVIN: Hearing nothing, I'm going 10 to continue. 11 REDIRECT EXAMINATION 12 QUESTIONS BY MR. TIVIN: 13 Q Dr. Graham, you were asked some questions 14 about your being an expert in the courtroom versus 15 outside the courtroom with regard to asbestos. Do you 16 remember that? 17 A Yes. 18 Q In the cases that you see from the hospital, 19 is there any difference in the presentation of 20 mesothelioma that you see in a hospital or whether you 21 see it in a medical/legal sense? 22 A No. The diagnostic principals are the same. 23 Q In your ability to determine the causation 24 of mesothelioma in a hospital setting versus a 25 medical/legal setting, is that the same? 85 1 A I mean the process is the same, but rarely 2 in the hospital is the cause an issue. Mesothelioma 3 whether it's caused by asbestos or not behaves the 4 same. So it's really not an issue in the hospital. 5 The ones I see in the hospital are being diagnosed for 6 a basis for therapy. 7 Q I guess my question is, do you have a set of 8 causation standards that you use in the hospital sense 9 and a different set of causation standards that you 10 use in the medical/legal sense? 11 A No. 12 Q You were asked about fiber release. Are you 13 aware of studies that show fiber release from the use 14 of thermal insulation that can be hundred's of fibers 15 per CC? 16 A Yes. 17 Q Would you consider that type of exposure to 18 be a high exposure? 19 A That would be heavy exposure I think by 20 anybody's criteria. 21 Q And you were asking about -- you were asked 22 about the number of different companies that you have 23 testified for. The products those companies 24 manufactured, do they all have to do with chrysotile? 25 A I think I was asked to testify or consult. 86 1 Q Or consult? 2 A Some had amphibole products, and some have 3 chrysotile. 4 Q Does it matter what company retains you, do 5 your opinions change based on the company? 6 A My opinion doesn't. Obviously, the question 7 changes depending upon what the product at issue is. 8 But, no, somebody asks me -- I mean a lot of people 9 don't even tell me who they represent. They just ask 10 me a question about something, and I answer it. If it 11 helps them, fine. If it doesn't, that's fine too. 12 Q You were asked questions about Mr. Bolter's 13 study. Is his the only study that you relied upon to 14 determine whether the use of gaskets and packing 15 resulted in a low dose of low fiber release? 16 A No. As I mentioned, the others are at least 17 a half a dozen. 18 Q You were asked some questions about 19 crocidolite. People -- am I correct in saying that 20 normally crocidolite is known as blue asbestos? 21 A Yes. 22 Q Amosite is known as brown asbestos? 23 A Yes. 24 Q And chrysotile iswhiteasbestos? 25 A Yes. 87 1 MR. TIVIN: Could I have the plaintiff's 2 transcript? 3 Q (By Mr. Tivin) You were asked some questions 4 about Mr. Johnston's exposure? 5 MR. PANATIER: Here's Volume I. Here's 6 Volume II. 7 Q (By Mr. Tivin) I just want you to assume on 8 page 570 that Mr. Johnston testified that -- the 9 last area I want to go over is a blue asbestos 10 gaskets, and for you to understand blue asbestos 11 gaskets would be seen as crocidolite asbestos? 12 A Okay. 13 Q Do you remember he testified? Do you 14 remember that testimony? Do you recall what they look 15 like? Answer, they were a dark blue with some white 16 flakes or specs on them. Did they have any writing on 17 them? Just the Garloch logo or name. Did you see any 18 other name other than the Garloch name on those 19 gaskets? I don't remember seeing one. There may have 20 been one. It may have been one. May have had one. 21 I want you to assume that is his testimony. 22 Using that assumption, does that give you any 23 indication that Mr. Johnston was ever exposed to a 24 John Crane crocidolite product? 25 A No. I mean the only one he identifies is 88 1 Garloch. 2 Q Also I want you to assume he testifies that 3 on page 571, how many times or occasions did you see a 4 blue gasket? He said at least a half a dozen times. 5 Okay. 6 A Okay. 7 Q And he testifies further on 572 if I add 8 this up over eight years, it was a half dozen times 9 that you saw a gasket being installed or removed? He 10 said half a dozen times. Then he says three or four 11 times being cut; is that correct? I want you to 12 assume that is his testimony. 13 A Okay. 14 Q Would that lead you to believe there was any 15 large dose of, that Mr. Johnston received a large dose 16 of crocidolite from the use of gaskets? 17 A No. 18 Q If you were to further assume that this - 19 that he was a bystander and not a direct user of those 20 gaskets at times, what would that tell you further 21 about his dose if anything? 22 A It would be even more minimal. 23 Q Finally you were asked some questions about 24 a tremolite in John Crane products. Have you seen any 25 indication that a does that Mr. Johnston may have 89 1 received from the use of any gasket and packing 2 product or any John Crane product would give a high 3 dose of tremolite asbestos to the extent it could 4 cause mesothelioma? 5 A Would not. 6 Q And all the questions that you've -- strike 7 that. You were asked questions about your expertise 8 Have you ever been, testified as an expert in 9 different states? 10 A Yes. 11 Q Approximately how many different states have 12 you been, approximately different states have you been 13 qualified as an expert in to speak about asbestos and 14 the causation of asbestos-related disease? 15 A I don't know. Probably a dozen. 16 Q Have you ever not been qualified as an 17 expert to talk about the causation of asbestos 18 disease? 19 A No. 20 Q Any of the questions plaintiff's counsel 21 asked you regarding John Crane or regarding fiber 22 release change any of your opinions as to whether any 23 exposure to John Crane gaskets or packing contributed 24 to Mr. Johnston's mesothelioma? 25 A No. 90 1 Q Your opinion is still that any exposure he 2 had to a John Crane gasket or packing product did not 3 cause Mr. Johnston mesothelioma? 4 MR. PANATIER: Leading. 5 THE WITNESS: Correct. 6 Q (By Mr. Tivin) Let me rephrase. Based upon 7 everything you heard on cross-examination, do you 8 have an opinion as to whether the exposure to any 9 John Crane gasket or packing product was a cause or 10 a contributed cause or a substantial contributing 11 factor to Mr. Johnston's mesothelioma? 12 A Yeah. I have an opinion. 13 Q What is that opinion? 14 A John Crane gaskets and packing had nothing 15 to do with his disease. 16 MR. TIVIN: Thank you, sir. 17 MR. PANATIER: I'll have some follow up 18 in a minute. I'll grab -- sir, I just need to 19 find something, then it will be quick. Ready? 20 THE WITNESS: Yep. 21 RECROSS-EXAMINATION 22 QUESTIONS BY MR. PANATIER: 23 Q Sir, it is your opinion that contaminated 24 chrysotile containing tremolite can cause mesothelioma 25 true? 91 1 A If the amounts of contamination is 2 sufficient and the dose is enough, yes. 3 I'm going to go back to this testimony in Q 4 the Pelly case in 2007 and read the question and 5 answer to you, and ask to see it if you need to. 6 Question, first of all, it's your opinion that 7 contaminated chrysotile containing tremolite can cause 8 mesothelioma. True? Your answer was pleural 9 mesothelioma in humans, yes. Was that your answer 10 then? 11 A Yes. 12 Q Sir, with regard to your work at the 13 hospital and contrasting it with your work for 14 asbestos defendants, in a hospital, when you issue a 15 report as a forensic pathologist -- well, I guess the 16 question is, do you have to issue a report? 17 A In the hospital the report is a surgical 18 pathology report. 19 Q So you do have to issue reports in the area 20 of your expertise in the hospital; right? 21 A If I'm the primary pathologist responsible 22 for the case, it is. If someone shows me, one of my 23 associates brings it to me and asks me for my opinion, 24 then I don't. 25 Q Okay. So if you're the primary guy on it, 92 1 you have to issue a report; right? 2 A Yes. 3 Q Do you have to issue reports as the medical 4 examiner? 5 A Yes. 6 Q Have you ever stated in a report that you've 7 written either for the Medical Examiner, as the 8 Medical Examiner or as a forensic pathologist, have 9 you ever included in any report that it is generally 10 accepted that amphibole asbestos is a potent human 11 pleural carcinogen capable of leading to the 12 development of pleural mesothelioma after limited 13 exposure? 14 A Sure. 15 Q In what scenario have you done that? 16 A In the medical/legal consultations. 17 Q Okay. I'm not talking about that. And 18 maybe my question was bad. In your non-medical/legal 19 work, right, not for defendants and asbestos 20 litigation, okay, so the work that you do as the 21 Medical Examiner and in your official position for the 22 hospital, have you authored reports with that sentence 23 in it? 24 A I don't address discussions in those 25 reports. I just put a diagnosis down. 93 1 Q So it would also be fair that you haven't 2 said in either of those capacities in contrast to 3 amphibole asbestos, chrysotile dust including any 4 contaminating amphibole is a week human carcinogen. 5 True? 6 A I don't discuss causation issues in the 7 hospital reports. I would just put a final line for 8 the Medical Examiner reports. I don't put discussions 9 in my reports like that. 10 Q So for your non-legal work, you don't opine 11 on causation or the relative potencies of asbestos. 12 True? 13 A I may give a causation opinion, but I don't 14 go through a discussion leading up to it. 15 Q You don't compare amphiboles with serpentine 16 or anything like that. You may say it's from 17 asbestos? 18 A In the hospital, I wouldn't even do that. I 19 would just say what's there -- because the issue in 20 the hospital case is not causation. It's diagnosis. 21 Unless it would happen to be an autopsy case, then I 22 would. 23 Q Have you ever in an autopsy case that was 24 not medical/legal consulting gone through an analysis 25 of chrysotile versus amosite or amphibole asbestos? 94 1 A You know, I probably haven't because usually 2 the resident writes those reports, and so -3 Q Has any resident under you done that? 4 A No. 5 Q And lastly, are you aware of any scientific 6 or regulatory body in the world, solar system, or 7 galaxy, or universe that has opined that chrysotile 8 asbestos is safe? 9 THE DEFENDANTS: Objection. Form. 10 THE WITNESS: It's always qualified. 11 They have opined that chrysotile can be safe in 12 certain circumstances, and there are bodies that 13 talked about as I recall very low release wouldn't 14 be expected to cause disease. But just as a 15 general statements, no. 16 Q (By Mr. Panatier) No one has come out and 17 said it's safe; right? 18 A Just the bottomline, no qualification. 19 Q Right? 20 A Correct. 21 Q Are you aware of --same question, any 22 scientific or regulatory body, we'll leave it with 23 planet earth, that said chrysotile is incapable of 24 causing mesothelioma? 25 THE DEFENDANTS: Objection. Form. 95 1 THE WITNESS: As just a general 2 statement, no. 3 Q (By Mr. Panatier) Correct. Are you aware of 4 any scientific or regulatory body on this planet 5 that has said that there is a known safe level of 6 exposure for chrysotile asbestos? 7 A No. 8 MR. PANATIER: That's all the questions 9 I have. Thank you, sir. 10 THE DEFENDANTS: I want to put an 11 objection to form on the last question. 12 FURTHER DIRECT EXAMINATION 13 QUESTIONS BY MR. TIVIN: 14 Q One last question, when you were talking 15 about the contaminated chrysotile and the dose it 16 would require, that is you were talking about the 75 17 to 100 fibers per CC year; correct? 18 A Yes. 19 Q So if someone used Canadian chrysotile that 20 was contaminated with tremolite, you would need to see 21 a fiber CC year of 75 to 100 before you could relate 22 it to the development of mesothelioma; correct? 23 A And that assumes that it's got sufficient 24 contamination that would be capable of causing it at 25 all, yes. 96 1 Q If someone had an exposure of less than two 2 fiber per CC years of Canadian contaminated 3 chrysotile, you don't believe that that would in any 4 way cause any asbestos-related disease; correct? 5 A That's correct. 6 MR. PANATIER: Leading. 7 Q (By Mr. Tivin) I'll rephrase. If someone 8 had exposure of less than two fiber per CC years, do 9 you believe within a reasonable degree of medical 10 and scientific certainty as to whether that could 11 cause any asbestos-related disease from asbestosis 12 to pleural plaques to lung cancer to mesothelioma? 13 A Not chrysotile wouldn't. Chrysotile would 14 not. 15 MR. TIVIN: Thank you. No further 16 questions. 17 MR. PANATIER: One follow up. 18 FURTHER CROSS-EXAMINATION 19 QUESTIONS BY MR. PANATIER: 20 Q For any of the opinions that you've given 21 today having to do with asbestos causation, chrysotile 22 versus amosite or crocidolite or serpentine versus 23 amphibole or the level of exposure that would be 24 necessary to get disease from any type of asbestos, 25 have you ever published on those subjects? 97 1 A Indirectly in that article we talked about 2 earlier. There's a discussion about why contaminated 3 chrysotile may cause mesothelioma, and again this is 4 back from '98, so it doesn't include the populations 5 that were exposed or have been reported that have been 6 exposed to uncontaminated. So there is a general 7 discussion about some of that, but not with numbers 8 and things. 9 Q If we wanted to find out what your, what 10 you've put out there as your published opinion, we 11 have part of one publication to go to? 12 A Well, plus obviously all the depositions 13 where I've been asked that. As far as scientific 14 literature, yeah, the one part of that one article. 15 Q There's only one thing in the scientific 16 community that you've put out there? 17 A Right. 18 MR. PANATIER: Thank you. 19 MR. TIVIN: Nothing further. 20 THE WITNESS: Waive. 21 (The witness waives signature.) 22 (The deposition concluded at 12:12 p.m.) 23 24 25 98 1 2 3 CERTIFICATE OF REPORTER 4 STATE OF MISSOURI ) SS: 5 COUNTY OF ST. LOUIS ) 6 7 I, JULIE HUNDELT, Certified Court Reporter, 8 the officer before whom the foregoing deposition was 9 taken, do hereby certify that the witneSS whoSe 10 testimony appears in the foregoing deposition was duly 11 sworn by me; that the testimony of said witness was 12 taken by me to the best of my ability and thereafter 13 reduced to typewriting under my direction; that I am 14 neither counsel for, related to, nor employed by any 15 of the parties to the action in which this deposition 16 was taken, and further that I am not a relative or 17 employee of any attorney or counsel employed by the 18 parties thereto, nor financially or otherwise 19 interested in the outcome of the action. 20 21 22 23 Notary Public in and for 24 the State of Missouri 25 99