Document p2kkaqboZzgKyKv713GYe7rvX

file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4151 1 CASE NUMBER: BC 367800 2 CASE NAME: WILLIAM MOLINA AND ANGELINA MOLINA 3 VS. 4 SHELL OIL COMPANY, ET AL. 5 LOS ANGELES, CA TUESDAY, OCTOBER 28, 2008 6 DEPT. NO. 323-CCW HON. CAROLYN B. KUHL, JUDGE 7 REPORTER: VIRGINIA R. ISHIDA, CSR 3784 8 TIME: 9:15 A.M. 9 APPEARANCES: (AS NOTED ON TITLE PAGE.) 10 11 (THE FOLLOWING PROCEEDINGS 12 WERE HAD IN OPEN COURT IN THE 13 PRESENCE OF THE JURORS:) 14 15 THE COURT: ALL JURORS AND ALTERNATES ARE HERE. GOOD 16 MORNING. COUNSEL ARE PRESENT. THE WITNESS IS AGAIN ON THE 17 WITNESS STAND. 18 MR. RIFF, YOU MAY INQUIRE. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (1 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 MR. RIFF: THANK YOU, YOUR HONOR. 20 21 JOHN WHYSNER, 22 HAVING BEEN PREVIOUSLY SWORN BY THE CLERK, RESUMED THE STAND 23 AND TESTIFIED FURTHER: 24 25 REDIRECT EXAMINATION (RESUMED) 26 BY MR. RIFF: 27 Q DR. WHYSNER, AT 4:35 YESTERDAY WE WERE PUT TO A 28 DECISION WHETHER TO ASK YOU A FEW MORE QUESTIONS THEN OR THIS file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (2 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4152 1 MORNING, AND WE'VE ELECTED TO DO SO THIS MORNING. WITH ANY 2 LUCK THIS WILL NOT TAKE ALL THAT LONG. 3 SO I WANT TO TAKE A GIANT STEP BACKWARDS FROM 4 THE DETAILS ON CROSS-EXAMINATION THAT OCCURRED YESTERDAY AND 5 ASK YOU THIS QUESTION: IN SELECTING THE ARTICLES THAT YOU 6 CONSIDERED FOR -- IN YOUR ANALYSIS, WHAT WERE THE KEY CRITERIA 7 OR FACTORS THAT YOU USED -- JUST LEAVE IT AT THAT. 8 A WELL, THERE WERE THREE FACTORS. ONE OF THEM WAS 9 THAT IF IT WAS A REPETITION OF AN ANALYSIS OF A PREVIOUS 10 PUBLICATION -11 IN OTHER WORDS, IF IT WAS THE SAME GROUP OF 12 PEOPLE AND THEY WERE BEING ANALYZED A SECOND TIME, I TRIED TO 13 USE THE MOST RECENT STUDY OF THAT GROUP OF INDIVIDUALS. 14 THAT'S ONE THING. 15 BUT PROBABLY MOST IMPORTANTLY FOR WHAT WE WERE 16 TALKING ABOUT YESTERDAY, THE IMPORTANT THING IS WHEN YOU'RE 17 TRYING TO ANALYZE WHETHER OR NOT A PARTICULAR CHEMICAL MIXTURE 18 CAUSES A PARTICULAR DISEASE, THE STUDIES HAVE TO BE ABOUT, file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (3 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 NUMBER ONE, THE CORRECT DISEASE, AND NUMBER TWO, THE CHEMICAL 20 OR CHEMICAL MIXTURE THAT YOU'RE CONCERNED ABOUT. 21 THOSE ARE THE TWO MAIN CRITERIA BY WHICH I 22 SELECTED THE STUDIES THAT I DID AND THE RESULTS WITHIN CERTAIN 23 STUDIES THAT I SELECTED. 24 Q NOW, YOUR FILE IN THIS CASE THAT YOU PUT 25 TOGETHER INCLUDED MORE STUDIES THAN YOU INCLUDED ON THE ACTUAL 26 TABLES THAT WE SHOWED YESTERDAY; IS THAT TRUE? 27 A YES. 28 Q YOU BROUGHT ALL OF YOUR STUDIES AND ALL OF YOUR file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (4 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4153 1 FILES TO A DEPOSITION IN THIS CASE EARLIER THIS YEAR? 2 A YES. 3 Q AND COUNSEL'S PARTNER, MR. HANLEY, ASKED YOU 4 QUESTIONS FOR TEN HOURS ABOUT THOSE STUDIES? 5 A I BELIEVE THAT'S THE RIGHT AMOUNT OF TIME, YES. 6 UH-HUH. 7 Q YESTERDAY AT ONE POINT, AT LEAST BRIEFLY, WE 8 WERE TALKING ABOUT WHETHER -- ABOUT A STUDY THAT IDENTIFIED 9 HODGKIN'S DISEASE AS OPPOSED TO NON-HODGKIN'S LYMPHOMA. IS IT 10 APPROPRIATE TO -- FOR THE PURPOSES OF THIS CASE, FOR WHAT WE 11 ASKED YOU TO DO -- TO TALK ABOUT HODGKIN'S DISEASE? 12 A JUST LIKE ACUTE MYELOGENOUS LEUKEMIA IS A 13 DIFFERENT DISEASE FROM NON-HODGKIN'S LYMPHOMA, EVEN THOUGH 14 BOTH HODGKIN'S DISEASE AND NON-HODGKIN'S LYMPHOMA ARISE IN THE 15 LYMPH SYSTEM, THE LYMPH GLANDS, WE STILL HAVE TO LOOK AT THOSE 16 TWO DISEASES SEPARATELY. THEY HAVE TOTALLY DIFFERENT 17 CHARACTERISTICS, AND THE CLINICAL COURSE OF THE DISEASES ARE 18 DIFFERENT. THE TREATMENTS OF THE DISEASES ARE DIFFERENT. SO file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (5 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 WE, AGAIN, TRY TO FOCUS ON STUDIES OF NON-HODGKIN'S LYMPHOMA. 20 Q NOW, I THINK YESTERDAY -21 A BY THE WAY, I'LL MENTION AS AN ASIDE. WE DO 22 HAVE A FAIR NUMBER OF STUDIES ON THE INTERSECTION BETWEEN 23 NON-HODGKIN'S LYMPHOMA AND THESE EXPOSURES. SO IT'S NOT AS IF 24 WE'RE -- WE DON'T HAVE STUDIES ENOUGH TO LOOK AT THESE 25 SPECIFICALLY. 26 Q LET ME ASK YOU ABOUT THAT. 27 WHEN YOU GO TO THE WORLD'S PUBLISHED 28 PEER-REVIEWED LITERATURE AND YOU SELECT OUT THOSE STUDIES THAT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (6 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4154 1 LOOK AT NON-HODGKIN'S LYMPHOMA AND REFINED -- ORGANIC REFINED 2 PETROLEUM SOLVENTS, YOU'RE LOOKING FOR THE INTERSECTION OF 3 THOSE TWO. WOULD YOU DESCRIBE THAT DATABASE, THAT COLLECTION 4 OF INFORMATION, AS -5 WELL, HOW WOULD YOU DEFINE IT? A LOT? A 6 LITTLE? ROBUST? NOT ROBUST? 7 A I THINK IT'S REASONABLY ROBUST. I'VE CERTAINLY 8 BEEN INVOLVED IN ISSUES WITH OTHER CHEMICALS WHERE WE DON'T 9 HAVE ANYWHERE NEAR THE NUMBER OF STUDIES THAT WE HAVE HERE. 10 BUT THIS HAS BEEN STUDIED BY LOTS AND LOTS OF DIFFERENT 11 SCIENTISTS. AND WE NOT ONLY HAVE THE STUDIES THAT HAVE LOOKED 12 AT SOLVENT EXPOSURES IN BENZENE, BUT WE HAVE THE PETROLEUM 13 WORKERS STUDIES, SO THIS IS A FAIRLY HUGE DATABASE. 14 Q SO YESTERDAY YOU WERE ASKED LOTS OF QUESTIONS 15 ABOUT ORGANIC SOLVENTS, AND I WANT TO MAKE SURE THAT I 16 UNDERSTAND -- WE UNDERSTAND SOMETHING. 17 WITHIN THE WORLD OF, QUOTE, "ORGANIC SOLVENTS," 18 IS THERE A FAMILY OF SOLVENTS THAT ARE CALLED "GLYCOL ETHER"? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (7 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 A YES. 20 Q GIVE US AN EXAMPLE OF WHAT A GLYCOL ETHER IS. 21 A PROPYLENE GLYCOL ETHER IS ONE OF THEM. THESE 22 SOMETIMES ARE USED IN PAINTS IN TERMS OF -- BECAUSE THEY'RE 23 BETTER FOR LATEX PAINTS BECAUSE THEY NOT ONLY CAN DISSOLVE 24 THINGS THAT HAVE SOME ORGANIC PROPERTIES BUT ALSO NON-ORGANIC 25 PROPERTIES. 26 BUT THEY ARE TECHNICALLY ORGANIC SOLVENTS, BUT 27 THEY'RE ACTUALLY USED TO DISSOLVE DIFFERENT KINDS OF 28 COMPONENTS. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (8 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4155 1 Q WITHIN THE BASKET OF THINGS CALLED "ORGANIC 2 SOLVENTS," IS THERE A FAMILY OF SOLVENTS THAT HAVE ONE OR MORE 3 MOLECULES OF CHLORINE IN THEM? 4 A YES. FOR EXAMPLE, ONE OF THEM IS A SOLVENT THAT 5 WAS USED EXTENSIVELY IN THE DRY CLEANING INDUSTRY, 6 PERCHLOROETHYLENE, ALSO KNOWN AS TETRACHLOROETHYLENE. 7 ANOTHER ONE IS TRICHLOROETHYLENE, WHICH WAS USED 8 AS A DEGREASING SOLVENT. IT WAS USED IN MANUFACTURE AND 9 MAINTENANCE OF AIRPLANES TO A LARGE EXTENT. BUT IT WAS USED 10 FOR A LOT OF DIFFERENT PURPOSES AND SO THAT'S ANOTHER ONE. 11 DICHLOROETHANE, D.C.E., IS ANOTHER ONE. THEY'RE 12 JUST A -13 OH, TETRACHLOROETHYLENE. THERE ARE A LARGE 14 NUMBER OF -- CHLOROFORM. 15 Q CHLOROFORM. IS THAT AN ORGANIC SOLVENT THAT HAS 16 ONE OR MORE CHLORINE MOLECULES IN IT? 17 A YES. 18 Q IS THAT COLLECTION OF SUBSTANTIVE ORGANIC file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (9 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 SOLVENTS WITH ONE OR MORE CHLORINE MOLECULES, ARE THOSE CALLED 20 "CHLORINATED SOLVENTS"? 21 A YES. 22 Q NONE OF THE SOLVENTS INVOLVED IN THIS CASE, AS 23 YOU APPRECIATE IT, INVOLVE CHLORINE SOLVENTS; IS THAT TRUE? 24 A I'VE LOOKED OVER THE M.S.D.S.'S THAT HAVE BEEN 25 USED AND ALL THE ISSUES THAT HAVE BEEN DISCUSSED IN THIS CASE 26 AND I DIDN'T SEE ANY INDICATION THAT THERE WERE EITHER GLYCOL 27 ETHERS OR CHLORINATED SOLVENTS INVOLVED. 28 Q AS A BROAD PROPOSITION, DR. WHYSNER, ARE THERE A file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (10 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4156 1 SET OF TOXICOLOGICAL PROPERTIES OF GLYCOL ETHERS THAT ARE 2 DIFFERENT IN KIND THAN, SAY, FROM CHLORINATED ORGANIC 3 SOLVENTS? 4 A YEAH. YES, FOR EXAMPLE, ONE OF THE BIG ISSUES 5 OF GLYCOL ETHERS HAS TO DO WITH ACTUALLY EFFECTS ON THE 6 REPRODUCTIVE SYSTEM. SO A LOT OF THE REGULATIONS AND STUDIES 7 THAT HAVE BEEN AIMED AT GLYCOL ETHERS HAVE TO DO WITH THINGS 8 LIKE TOXICITY, ESPECIALLY TO THE -- WELL, THE MALE AND FEMALE 9 REPRODUCTIVE SYSTEM, WHICH HAS REALLY REQUIRED THEM TO BE 10 FAIRLY STRINGENTLY REGULATED. 11 Q THIS CASE INVOLVES THOSE ORGANIC SOLVENTS THAT 12 COULD BE CALLED "REFINED PETROLEUM SOLVENTS" OR "REFINED 13 PETROLEUM HYDROCARBONS," RIGHT? 14 A YES. 15 Q AND IS THE KEY CONCEPT THAT THEY ARE DERIVED 16 FROM PETROLEUM? 17 A YES. 18 Q IS TURPENTINE A REFINED PETROLEUM SOLVENT? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (11 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 A NO. 20 Q WHY? 21 A IT COMES FROM, AS I MENTIONED, IT COMES FROM 22 PINE TREES. 23 Q NOW, IN DOING THE ANALYSIS YOU DID, DID YOU TRY 24 TO LIMIT YOUR WORK TO THOSE STUDIES THAT DEAL WITH REFINED 25 PETROLEUM SOLVENTS, THE SOLVENTS THAT ARE AT ISSUE IN THIS 26 CASE -- THE KIND OF SOLVENTS AT ISSUE IN THIS CASE? 27 A YES. WELL, SOME OF THE STUDIES MAY HAVE HAD 28 THESE OTHER SOLVENTS INVOLVED AS WELL. BUT IF THEY CONTAINED file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (12 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4157 1 ACTUAL ANALYSES OF REFINED PETROLEUM SOLVENTS, I TRIED TO 2 INCLUDE THEM IN MY ANALYSIS. 3 Q NOW, NEXT TOPIC. 4 YOU WERE ASKED SEVERAL QUESTIONS ABOUT REVIEW 5 ARTICLES. DO YOU REMEMBER THAT? 6 A YES. 7 Q BY THE WAY, WITH THE EXCEPTION OF ONE ARTICLE, 8 THIS HAYES STUDY FROM CHINA, I AM NOT GOING TO ASK YOU ANY 9 QUESTIONS ABOUT ANY SPECIFIC ARTICLES, BUT I WANT TO 10 UNDERSTAND, WITHIN THE WORLD OF SCIENCE THAT YOU LIVE IN, I 11 WANT TO UNDERSTAND WHERE SOME OF THESE DIFFERENT CONCEPTS FIT 12 IN. 13 IS THERE A DISTINCTION, DR. WHYSNER, AS YOU 14 APPRECIATE IT, BETWEEN ORIGINAL RESEARCH AND A REVIEW ARTICLE? 15 A YES. 16 Q EXPLAIN THAT FOR THE JURY, PLEASE. 17 A WELL, THE DIFFERENCE IS IN AN ORIGINAL RESEARCH 18 THAT ACTUALLY CONTAINS THE DATA THAT WE RELY UPON IF WE'RE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (13 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 LOOKING AT STUDIES OF INDIVIDUALS. THE DIFFERENCE IS THAT 20 REVIEW ARTICLES ARE SOMEBODY ELSE'S INTERPRETATION OF WHAT 21 THAT DATA MEANS OR A COLLECTION OF STUDIES MEANS. 22 Q NOW, WITHIN THE WORLD OF SCIENCE AND 23 PUBLICATIONS THAT PEOPLE LOOK AT, IS THERE THE CONCEPT OF AN 24 EDITORIAL? 25 A YES. 26 Q WHERE DOES THAT FIT INTO THE NOTION OF ORIGINAL 27 RESEARCH VERSUS REVIEW ARTICLES VERSUS EDITORIALS? 28 A WELL, EDITORIALS ARE SPECIFICALLY THERE TO file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (14 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4158 1 PROVIDE A COMMENTARY ON A PARTICULAR ISSUE. AND A LOT OF 2 TIMES EDITORIALS DON'T EVEN REQUIRE ONE TO EVEN REFERENCE WHAT 3 ONE IS TALKING ABOUT. IT'S A -- IT CAN BE A THINK-PIECE. IT 4 CAN BE PUTTING FORTH A HYPOTHESIS, A CRITIQUE. IT CAN BE 5 VARIOUS KINDS OF THINGS. 6 Q NOW, FOR AN AUTHOR TO WRITE A REVIEW ARTICLE ON 7 A TOPIC, AT LEAST IN SOME CASES, THAT AUTHOR IS HIMSELF OR 8 HERSELF SELECTING FROM AND AMONG THE WORLD OF ORIGINAL 9 RESEARCH. IS THAT YOUR EXPERIENCE? 10 A YES. 11 Q NOW, YOU WERE ASKED ABOUT THIS YESTERDAY. YOU 12 WERE ASKED: WELL, GEE WHIZ, WASN'T THAT STUDY FUNDED BY THE 13 AMERICAN PETROLEUM INSTITUTE? THAT KIND OF QUESTION. 14 WHAT IS THE ROLE, IN YOUR EXPERIENCE AND I GUESS 15 IN YOUR OPINION, TO A REASONABLE DEGREE OF SCIENTIFIC 16 PROBABILITY, WHAT IS THE ROLE OF A FUNDING SOURCE AS IT 17 RELATES TO ORIGINAL RESEARCH? 18 A WELL, AT LEAST IN OCCUPATIONAL MEDICINE, A LOT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (15 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 OF THE ORIGINAL RESEARCH IS ACTUALLY DONE AND HAS TO BE DONE 20 APPROPRIATE BY THE COMPANIES THAT ARE EMPLOYING THE WORKERS. 21 SO IN, I WOULD SAY, MOST RESEARCH THAT HAS TO DO WITH CHEMICAL 22 EXPOSURES IN THE WORKPLACE IS ESSENTIALLY BEING FUNDED BY 23 COMPANIES, THEIR OWN COMPANIES. 24 IN THE CASE WE WERE TALKING ABOUT, A.P.I., THIS 25 IS THE ORGANIZATION OF PETROLEUM COMPANIES, AND I PRESUME THEY 26 WERE FUNDING THAT RESEARCH THAT WE WERE TALKING ABOUT BECAUSE 27 IT HAD TO DO WITH PUTTING TOGETHER THE DATA FROM A NUMBER OF 28 DIFFERENT COMPANIES. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (16 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4159 1 Q SO -2 A THE BOTTOM LINE IS IT'S NOT REALLY UNUSUAL IN 3 THE OCCUPATIONAL HEALTH. IN FACT, THAT'S WHERE MOST OF OUR 4 INFORMATION COMES FROM. 5 Q NOW, HAVE YOU PERSONALLY BEEN INVOLVED IN 6 RESEARCH FUNDED BY INDUSTRY, LOOKING AT ADVERSE HEALTH EFFECTS 7 OF CHEMICALS IN WORKER POPULATIONS? 8 A WELL, YES, I HAVE BEEN. 9 Q WHY DON'T YOU GIVE US AN EXAMPLE OF THAT. 10 A WELL, FOR EXAMPLE, WHEN WE WERE FIRST DEALING 11 WITH THE ISSUE OF POLYCHLORINATED BIPHENYLS -12 Q P.C.B.'S. 13 A -- P.C.B.'S -- I WAS INVOLVED IN DOING PERIODIC 14 EXAMINATIONS OF WORKERS THAT WORKED FOR AMTRAK TO LOOK AT 15 WHETHER OR NOT THEY HAD ANY HEALTH -- ADVERSE HEALTH OUTCOMES. 16 AND WE WERE ALSO TESTING THE AMOUNT OF -17 WITH P.C.B.'S YOU CAN ACTUALLY TEST THE AMOUNT 18 OF P.C.B.'S IN A PERSON'S BLOOD BECAUSE IT'S A BIOPERSISTENT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (17 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 COMPOUND. YOU CAN'T REALLY DO THAT WITH BENZENE BECAUSE IT 20 COMES AND GOES QUICKLY. 21 SO IN THOSE CASES WE WERE LOOKING AT P.C.B. 22 BLOOD LEVELS IN THE WORKERS AND LOOKING FOR VARIOUS KINDS OF 23 HEALTH OUTCOMES, CHANGES IN THINGS THAT A DOCTOR WOULD MEASURE 24 IN AN OFFICE LIKE YOUR LIVER ENZYMES OR GLUCOSE LEVELS OR 25 WHATEVER TO SEE IF WE COULD FIND ANYTHING. WE DID THAT ON A 26 PERIODIC BASIS. LIKE I SAID, THIS WAS DONE BY AMTRAK TO LOOK 27 AT THEIR OWN EMPLOYEES. 28 Q JUST BY WAY OF ANOTHER EXAMPLE, IS THERE A file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (18 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4160 1 SUBSTANCE THAT IS A KNOWN HUMAN CARCINOGEN CALLED "VINYL 2 CHLORIDE"? 3 A YES. 4 Q WHAT PART OF THE BODY DOES VINYL CHLORIDE OR IS 5 VINYL CHLORIDE CAPABLE OF CAUSING CANCER IN? 6 A WELL, IT CAUSES ANGIOSARCOMA OF THE LIVER AND 7 ALSO HEPATIC CELLULAR CARCINOMA, REGULAR LIVER CANCER. 8 Q WERE THE STUDIES THAT DEMONSTRATED THAT VINYL 9 CHLORIDE CAN CAUSE THIS KIND OF LIVER CANCER AN 10 INDUSTRY-FUNDED STUDY? 11 A SOME WERE DONE BY THE COMPANIES WHERE THE 12 WORKERS WERE PRESENT, YES. 13 Q NOW, IF INDUSTRY FUNDS A STUDY OF ORIGINAL 14 RESEARCH AND SOME RESEARCHER LIKE YOU OR MR. WEISENBURGER OR 15 SOMEBODY GOES OUT AND DOES THE STUDY AND WRITES IT UP AND 16 WANTS TO GET IT PUBLISHED, THAT AUTHOR STILL HAS TO GET IT 17 PAST THE PEER-REVIEW PROCESS OF THE EDITORIAL BOARD OF A 18 PEER-REVIEW JOURNAL; IS THAT TRUE? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (19 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 A YES. 20 Q WHY DID YOU -- WITHDRAWN. 21 DID YOU IN YOUR WORK FOR THIS CASE, IN FORMING 22 THE OPINIONS YOU TOLD THIS JURY YESTERDAY, WHAT ROLE, IF ANY, 23 DID REVIEW ARTICLES HAVE FOR YOU? 24 A WELL, I FOCUSED ON THE ORIGINAL RESEARCH THAT 25 HAD BEEN DONE. I MEAN, I'VE HAD -26 I WAS ASKED TO COME UP WITH MY OWN OPINION. AND 27 SO WHAT OTHER PEOPLE HAD SAID IN THE LITERATURE AND REVIEWED 28 IN TERMS OF INDIVIDUAL AUTHORS WAS SOMETHING THAT I LOOKED AT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (20 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4161 1 BUT PRIMARILY TO FIND STUDIES. ACTUALLY, PUBMED IS A PRETTY 2 GOOD RESOURCE FOR TRYING TO FIND ALL THE -3 THIS IS FROM THE NATIONAL LIBRARY OF MEDICINE. 4 IT'S A SEARCH SYSTEM TO FIND THINGS. 5 BUT MANY TIMES THE WAY YOU FIND THE ARTICLES IS 6 YOU CAN READ REVIEW ARTICLES OR OTHER PEOPLE'S ARTICLES AND 7 THEN THEY'RE REFERENCED IN THAT. 8 SO MY PRIMARY PURPOSE IN LOOKING AT REVIEW 9 ARTICLES WAS TRYING TO FIND THE UNIVERSE OF STUDIES. 10 Q I THINK THIS CAME UP IN YOUR CROSS-EXAMINATION 11 YESTERDAY -- WITHDRAWN. 12 NEXT TOPIC. THE ONLY ARTICLE I WANT TO TALK TO 13 YOU ABOUT IS THE HAYES AND YIN COLLECTION OF WORK COMING OUT 14 OF CHINA, COMMENCING IN ABOUT WHAT? '97? WITHDRAWN. 15 I WANT TO ASK YOU ABOUT THE HAYES 1997 ARTICLE 16 THAT MR. WAGNON ASKED YOU ABOUT. REMEMBER? 17 A YES. 18 Q DID YOU TELL US YESTERDAY IN RESPONSE TO file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (21 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 MR. WAGNON'S QUESTIONS THAT THERE WAS A SUBSEQUENT 2000 STUDY 20 OR PUBLICATION, I SHOULD SAY, THAT RELATES TO THAT HAYES '97 21 ARTICLE? 22 A YES. 23 Q REMIND US WHAT THE POINT WAS. 24 A WELL, THE POINT OF THAT WAS THAT THE AUTHOR WAS 25 REVIEWING OVER THAT PARTICULAR STUDY AGAIN, AND HE WAS 26 QUESTIONING WHETHER OR NOT THE FINDINGS THAT THEY HAD -27 FIRST OF ALL, HE SAID CLEARLY THAT THE FINDINGS 28 FOR LEUKEMIA, ACUTE MYELOGENOUS LEUKEMIA, WERE SOUND FINDINGS, file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (22 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4162 1 BUT HE QUESTIONED THE FINDINGS FOR NON-HODGKIN'S LYMPHOMA, 2 BECAUSE, AS I MENTIONED, THERE WERE DIFFERENT COHORTS, 3 ACTUALLY, THAT WERE BEING STUDIED AND THEY WERE COMBINED. BUT 4 THEY ALSO HAD INDIVIDUAL ANALYSES OF EACH ONE OF THOSE 5 COHORTS. 6 SO THERE WAS A GROUP OF CHEMICAL WORKERS. THERE 7 WAS A GROUP OF RUBBER WORKERS. THERE WAS A GROUP OF -- LET ME 8 JUST SEE, JUST SO I CAN MAKE SURE I GET THEM ALL -- COATINGS 9 WORKERS. 10 Q COATINGS? 11 A COATINGS. 12 Q SPELL IT. 13 A C-O-A-T-I-N-G-S. 14 Q GOT IT NOW. THANK YOU. 15 A A SHOE AND THEN OTHER MIXED IT HAD. 16 SO THERE WERE THESE DIFFERENT GROUPS OF PEOPLE. 17 WHAT THEY WERE COMMENTING ON WAS THAT THERE WERE BIG 18 DIFFERENCES BETWEEN THESE DIFFERENT GROUPS IN TERMS OF THE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (23 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 S.M.R.'S, THE STANDARD MORTALITY RATES. AND IN THAT CASE, 20 ONLY ONE OF THEM THEY SAID HAD REACHED STATISTICAL 21 SIGNIFICANCE, AND THAT WAS THE GROUP OF CHEMICAL WORKERS. 22 AND I THINK I ALSO MENTIONED DURING THE 23 CROSS-EXAMINATION THAT THERE WAS ANOTHER -- THERE WERE OTHER 24 PAPERS IN THAT WHOLE GROUP THAT DESCRIBED THE METHODOLOGY. 25 WHEN YOU LOOK AT THAT PAPER TO SEE WHAT CHEMICAL WORKERS DID, 26 WAS THEY WERE MAKING PESTICIDES OR THEY WERE MAKING OTHER 27 KINDS OF ORGANIC CHEMICALS. NOW, THEY MAY HAVE BEEN USING 28 BENZENE AS PART OF THAT WORK, BUT THE FACT THAT THEY WERE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (24 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4163 1 EITHER USING BENZENE AS A SOLVENT OR USING IT AS A STARTING 2 COMPOUND FOR MAKING THESE OTHER CHEMICALS MEANS THAT ALL THE 3 OTHER CHEMICALS THAT THEY WERE PRODUCING, THEY WERE ALSO 4 EXPOSED TO. 5 SO WHAT THESE AUTHORS SAID WAS THAT PERHAPS THE 6 FINDING FOR NON-HODGKIN'S LYMPHOMA WAS DUE TO CO-EXPOSURE TO 7 THESE OTHER CHEMICALS, RATHER THAN TO BENZENE EXPOSURE. 8 Q NOW, I GUESS ONE WAY TO LOOK AT WHAT WE HAVE 9 BEEN TALKING ABOUT NOW FOR THE LAST DAY OR SO IS THE QUESTION 10 WHETHER OR NOT REFINED PETROLEUM SOLVENTS, THE KIND INVOLVED 11 IN THIS CASE, 2 PERCENT BENZENE OR LESS, ARE OR ARE NOT HUMAN 12 CARCINOGENS. 13 THAT WOULD BE A ONE-SENTENCE SUMMARY OF WHAT 14 WE'VE BEEN TALKING ABOUT FOR A LONG TIME NOW, CORRECT? 15 A YES. 16 Q HERE'S WHAT I WANT TO KNOW: DR. WHYSNER, HAVE 17 ANY OF THE FOLLOWING ENTITIES -- BODIES, HAVE ANY OF THESE 18 ENTITIES: THE NATIONAL TOXICOLOGY PROGRAM, THE UNITED STATES file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (25 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 ENVIRONMENTAL PROTECTION AGENCY, THE INTERNATIONAL AGENCY FOR 20 RESEARCH ON CANCER, THE AGENCY FOR TOXIC SUBSTANCES AND 21 DISEASE REGISTRY, THE AMERICAN CONFERENCE OF GOVERNMENTAL 22 INDUSTRIAL HYGIENISTS -- HAVE ANY OF THOSE BODIES, TO YOUR 23 KNOWLEDGE, CONCLUDED THAT, YES -- CONCLUDED AS OF 2008 THAT, 24 YES, REFINED PETROLEUM SOLVENTS ARE IN FACT A HUMAN 25 CARCINOGEN? 26 MR. WAGNON: OBJECTION; BEYOND THE SCOPE OF 27 CROSS-EXAMINATION. I DIDN'T GO INTO IN CROSS ANY OF THESE 28 ENTITIES AND ANY OF THEIR OPINIONS. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (26 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4164 1 THE COURT: OVERRULED. 2 YOU MAY RESPOND. 3 THE WITNESS: NO. 4 BY MR. RIFF: 5 Q LAST TOPIC. 6 YOU WERE SHOWN A DOCUMENT FROM 1948 ON WHICH I 7 REMAIN CONFUSED, YOUR HONOR, WHETHER IT'S 132 OR 133. 8 THE COURT: IT IS 133. 9 MR. RIFF: THANK YOU. 10 Q AND I JUST WANT TO SPEND A COUPLE OF MINUTES 11 GOING OVER THIS DOCUMENT WITH YOU AND ASKING YOU QUESTIONS 12 ABOUT IT SINCE IT WAS SHOWN TO YOU ON CROSS-EXAMINATION. 13 OKAY WITH YOU? 14 A YES. 15 Q LET'S TAKE A LOOK AT THIS. (READING) 16 A.P.I. TOXICOLOGY REVIEW, BENZENE, SEPTEMBER 17 1948. OFFICIAL PUBLICATION, THE A.P.I. 18 LET'S JUST SEE WHAT WE'RE TALKING ABOUT HERE. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (27 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 I'LL READ IT FOR THE RECORD: (READING) 20 THIS REVIEW SUMMARIZES THE BEST AVAILABLE 21 INFORMATION ON THE PROPERTIES, CHARACTERISTICS, AND TOXICOLOGY 22 OF BENZENE. IT OFFERS SUGGESTIONS AND TENTATIVE 23 RECOMMENDATIONS PERTAINING TO MEDICAL TREATMENTS, MEDICAL 24 EXAMINATIONS AND PRECAUTIONARY MEASURES FOR WORKERS WHO ARE 25 EXPOSED TO BENZENE. IT WAS PREPARED AT THE HARVARD SCHOOL OF 26 PUBLIC HEALTH, BOSTON, MASS., UNDER THE DIRECTION OF 27 PROFESSIONAL PHILIP DRINKER. THE REVIEW HAS BEEN ADOPTED FOR 28 PUBLICATION BY THE MEDICAL ADVISORY COMMITTEE OF THE AMERICAN file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (28 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4165 1 PETROLEUM INSTITUTE. ANYONE DESIRING TO SUBMIT ADDITIONAL 2 INFORMATION OR PROPOSED CHANGES FOR CONSIDERATION PRIOR TO 3 RE-ISSUANCE OF THIS REVIEW IS REQUESTED TO SEND THEM TO THE 4 AMERICAN PETROLEUM INSTITUTE. THIS REVIEW WAS PREPARED BY 5 MARSHALL CLINTON, M.D. 6 AND INDICATES AMERICAN PETROLEUM INSTITUTE, 7 DEPARTMENT OF SAFETY WITH A NEW YORK CITY ADDRESS. 8 NOW, IT STARTS "TOXICOLOGICAL REVIEW OF 9 BENZENE," WITH A VARIETY OF CHEMICAL AND PHYSICAL PROPERTIES. 10 LET'S SEE WHAT I WANT TO ASK YOU ABOUT. 11 (PAUSE.) 12 Q LET'S GO TO THE TOXICOLOGY SECTION, SINCE YOU 13 ARE A TOXICOLOGIST. THE JURY HAS ALREADY HEARD ABOUT THE 14 DIFFERENCE BETWEEN ACUTE EFFECTS AND CHRONIC EFFECTS. 15 YOU UNDERSTAND WHAT THOSE DIFFERENCES ARE? 16 A YES. 17 Q NOW, ACUTE BENZENE POISONING. LET ME JUST STOP. 18 IT'S 1948. WHAT IS YOUR UNDERSTANDING OF WHAT THE TERM "ACUTE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (29 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 BENZENE POISONING" MEANT IN THE MEDICAL WORLD IN 1948? 20 A WELL, ACUTE BENZENE POISONING HAS TO DO REALLY 21 WITH PEOPLE BECOMING UNCONSCIOUS AND IT BECOMING A LIFE22 THREATENING CONDITION, WHEREBY WHAT'S CALLED "ACUTE SOLVENT 23 ENCEPHALOPATHY," WHICH MEANS EFFECTS ON THE BRAIN, WHEREBY ONE 24 CAN GO THROUGH VARIOUS STAGES, BUT ULTIMATELY -25 IT'S JUST LIKE THE SLIDE THAT I SHOWED WITH 26 ALCOHOL, WHERE YOU GET TO THE HIGHER AND HIGHER LEVELS AND 27 EVENTUALLY YOU CAN GET TO COMA AND EVEN DEATH STRICTLY FROM 28 THE ACUTE EFFECT THAT IT HAS ON THE BRAIN. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (30 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4166 1 Q SO IN THIS DOCUMENT THEY WRITE: (READING) 2 ACUTE BENZENE POISONING GENERALLY RESULTS FROM 3 THE INHALATION OF RELATIVELY HIGH CONCENTRATIONS OF THE VAPOR. 4 EXPOSURE TO AIR CONTAINING BENZENE IN CONCENTRATIONS OF 19,000 5 TO 20,000 PARTS PER MILLION, PAREN, (61 TO 65 MILLIGRAMS PER 6 LITER OF AIR) CLOSE PAREN, CAUSES DEATH WITHIN A FEW MINUTES, 7 WHEREAS CONCENTRATIONS OF 7,500 PARTS PER MILLION, PAREN, (25 8 MILLIGRAMS PER LITER), CLOSE PAREN, ARE DANGEROUS TO LIFE IN 9 ONE HALF TO ONE HOUR. THE MAXIMUM CONCENTRATION WHICH CAN BE 10 TOLERATED FOR ONE HOUR WITHOUT SERIOUS DISTURBANCES IS 11 ESTIMATED AT FROM 3,000 TO 4,700 P.P.M., PAREN, (10 TO 15 12 MILLIGRAMS PER LITER), CLOSE PAREN. MILD SYMPTOMS SUPERVENE 13 FOLLOWING EXPOSURE TO 1,500 TO 3,000 PARTS PER MILLION, PAREN, 14 (5 TO 10 MILLIGRAMS PER LITER), CLOSE PAREN, FOR A PERIOD OF 15 SEVERAL HOURS. 16 AND THEN THERE IS A DISCUSSION ABOUT THE 17 DRINKING OF BENZENE. 18 NOW, I WANT TO COMPARE AND CONTRAST THOSE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (31 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 NUMBERS TO A DOCUMENT THAT IS IN EVIDENCE, WHICH IS EXHIBIT 20 110. AND THIS IS "SUMMARY OF BENZENE EXPOSURE ESTIMATES FOR 21 MR. MOLINA, BASED UPON HIS DEPOSITION TESTIMONY." 22 IN FACT, I DON'T WANT TO USE THAT ONE. I WANT 23 TO USE THE ONE BASED ON MR. NICAS' INTERVIEW WITH MR. MOLINA. 24 THIS IS EXHIBIT 111. 25 SO BASED UPON WHAT MR. MOLINA TOLD DR. NICAS IN 26 THIS CASE, THE CONCENTRATIONS IN HIS JOBS RANGED BETWEEN 1.0 27 PARTS PER MILLION IN THE AIR AND 6.7. 28 DO YOU SEE THAT? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (32 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4167 1 A YES. 2 Q AND THAT IS BEING COMPARED -- I AM COMPARING AT 3 LEAST -- TO THESE ACUTE EFFECT NUMBERS OF 19,000 TO 20,000, 4 3,000 TO 4,700, 1,500 TO 3,000. 5 GOING ON. FROM 1948, THE A.P.I. WRITES: 6 (READING) 7 ACUTE EXPOSURE TO BENZENE PRODUCES RAPIDLY 8 INCREASING SYMPTOMS OF TIGHTENING OF LEG MUSCLES, DIZZINESS, 9 EXCITATION AND PALLOR, FOLLOWED BY FLUSHING, WEAKNESS, 10 HEADACHE, BREATHLESSNESS, APPREHENSION OF DEATH AND 11 CONSTRICTION IN THE CHEST. THE PULSE BECOMES RAPID AND THE 12 COLOR BLUE. VISUAL DISTURBANCES, TREMORS AND MUSCLES WEAKNESS 13 ARE ENCOUNTERED. THE VICTIM MAY LOSE CONSCIOUSNESS AND PASS 14 INTO COMA OR MAY DEVELOP ACUTE MANIA AND DELIRIUM. 15 CONVULSIONS ARE FAIRLY FREQUENT. DEATH MAY OCCUR ALMOST AT 16 ONCE OR SEVERAL HOURS OR DAYS FOLLOWING EXPOSURE. 17 THE NEXT PARAGRAPH TALKS ABOUT RECOVERY FROM 18 ACUTE BENZENE POISONING. I WILL NOT READ ALL OF THAT. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (33 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 I'M ON THE NEXT PAGE, AND THE A.P.I. WRITES 20 ABOUT SKIN CONTACT WITH BENZENE. IT WRITES: (READING) 21 SKIN CONTACT WITH BENZENE RESULTS IN DEFATTING 22 OF THE SKIN AND LEADS TO THE DEVELOPMENT OF ERYTHEMA. 23 `` WHAT IS ERYTHEMA? 24 A IT'S REDNESS BECAUSE OF THE INCREASED BLOOD 25 FLOW. 26 Q (READING) 27 DRY SCALING AND, IN SOME CASES, THE FORMATION OF 28 VESICULAR PAPULES. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (34 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4168 1 WHAT ARE THOSE? 2 A WELL, VESICULAR PAPULES ARE SORT OF -- SOMETHING 3 THAT MIGHT LOOK LIKE CHICKEN POX. 4 Q (READING) 5 PROLONGED EXPOSURE MAY PRODUCE LEGIONS 6 RESEMBLING FIRST- OR SECOND-DEGREE BURNS. 7 THEN THE A.P.I. TALKS ABOUT CHRONIC EFFECTS. 8 CHRONIC BENZENE POISONING -- LET'S STOP. 9 YOU TOLD US WHAT ACUTE BENZENE POISONING WAS A 10 MINUTE AGO. 11 WHAT IS CHRONIC BENZENE POISONING, AS YOU 12 APPRECIATE THAT TERM WAS BEING USED BY MEDICAL SCIENCE IN 13 ABOUT 1948? 14 A WELL, I THINK THAT, AGAIN, CHRONIC BENZENE 15 POISONING COULD BE ONE OF TWO THINGS. IT COULD BE A 16 REPEATED -- SOMETHING KNOWN AS "CHRONIC ENCEPHALOPATHY," BASED 17 UPON REPEATED EXPOSURES. AGAIN, EFFECTS ON THE BRAIN. BUT 18 THAT'S RELATIVELY UNCOMMON WITH BENZENE. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (35 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THE MOST IMPORTANT THING WITH BENZENE ARE 20 EFFECTS ON THE BONE MARROW. THINGS LIKE APLASTIC ANEMIA. 21 IN OTHER WORDS, THE BONE MARROW -22 IT'S TOXIC TO THE BONE MARROW SO IT DOESN'T FORM 23 BLOOD-FORMING ELEMENTS, WHICH MEANS A DECREASE IN WHITE CELLS 24 AND RED BLOOD CELLS. 25 Q (READING) 26 CHRONIC BENZENE POISONING RESULTS FROM REPEATED 27 OR CONTINUOUS EXPOSURE TO -- NOW I PUT QUOTES -- "RELATIVELY 28 LOW," END QUOTE, THOSE ARE MY QUOTES -- CONCENTRATIONS file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (36 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4169 1 OF BENZENE VAPOR. THE LEVEL AND DEGREE OF EXPOSURE NECESSARY 2 TO PRODUCE POISONING APPARENTLY VARY WIDELY. THERE ARE AT 3 LEAST TWO WELL-AUTHENTICATED CASES OF POISONING BY REPEATED 4 EXPOSURES OF ONLY 75 PARTS PER MILLION. YET MANY CHEMISTS 5 REPEATEDLY EXPOSE THEMSELVES TO FAR HIGHER CONCENTRATIONS OVER 6 PERIODS OF MANY YEARS WITH NO APPARENT ILL EFFECTS. 7 SO THE A.P.I. IN 1948 IS WRITING ABOUT EXPOSURE 8 OF ONLY 75 PARTS PER MILLION BENZENE IN AIR. 9 IN 2008, WHAT IS THE P.E.L. FOR BENZENE IN 10 AMERICAN WORKPLACES ON AN 8-HOUR TIME-WEIGHTED AVERAGE? 11 A IT'S ONE. 12 Q IF YOU DON'T KNOW, JUST TELL ME, BUT IN THE 13 PERIOD 1963 TO 1980, WHAT WAS THE -- WHAT WERE THE A.C.G.I.H. 14 T.L.V.'S FOR BENZENE IN AMERICAN WORKPLACES ON AN 8-HOUR 15 TIME-WEIGHTED AVERAGE? 16 A I BELIEVE THEY WERE -17 I BELIEVE THE P.E.L. WAS 25. I THINK THE T.L.V. 18 WAS ABOUT THE SAME. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (37 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 Q SO THESE DOCTORS ARE WRITING THAT THERE ARE TWO 20 WELL-AUTHENTICATED CASES OF POISONING BY REPEATED EXPOSURE OF 21 ONLY 75 PARTS PER MILLION. 22 THEY GO ON TO WRITE: (READING) 23 BENZENE IS RELATIVELY INSOLUABLE IN BODY FLUIDS 24 AND TISSUES, THEREFORE, ONLY SMALL AMOUNTS ARE ABSORBED BY THE 25 BODY. 26 THERE IS FURTHER DISCUSSION ABOUT THE TOXICOLOGY 27 AND MEDICAL EFFECTS. THEN WE GET TO WHAT YOU WERE ASKED ABOUT 28 YESTERDAY -- SAFE LIMITS. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (38 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4170 1 BY THE WAY, IN DOING YOUR WORK FOR THIS CASE, 2 DID YOU ACTUALLY GO AND LOOK AT THE REFERENCES THAT ARE CITED 3 BY THESE DOCTORS IN THE BIBLIOGRAPHY SECTION OF EXHIBIT 133? 4 A WELL, I LOOKED AT SOME OF THEM. 5 Q WHEN DID YOU LOOK AT THEM AND WHY DID YOU LOOK 6 AT THEM? 7 A WELL, FOR THE SAME REASON THAT I WAS ASKED THE 8 QUESTION YESTERDAY ABOUT THE REFERENCE TO THE -- WHAT IS THE 9 SAFE LEVEL FOR BENZENE. IT'S BASED UPON A COUPLE OF PAPERS 10 THAT WERE WRITTEN IN 1939. ONE OF WHICH IS BY BOWDITCH AND 11 ONE OF WHICH IS BY HUNTER. 12 THEY DID A CASE SERIES OF PEOPLE WHO HAD BEEN 13 EXPOSED TO -- WHAT I WOULD CONSIDER TO BE A VERY HIGH LEVELS 14 OF BENZENE. SO MOST OF THESE PEOPLE WERE EXPOSED TO 200, 400, 15 800, AND I'M NOT TALKING ABOUT PARTS PER MILLION YEARS. I'M 16 TALKING ABOUT AIR LEVELS OF THOSE. AND I'M SURE THAT YOU 17 HEARD PLENTY ABOUT WHAT THE DISTINCTION IS BETWEEN THOSE. 18 IN OTHER WORDS, IF YOU HAD AN AIR LEVEL EXPOSURE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (39 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 TO 400 PARTS PER MILLION OVER 20 YEARS, THAT WOULD BE -- I 20 THINK IT WOULD BE 8,000 PARTS PER MILLION YEARS. 21 THESE WERE HIGH LEVELS OF EXPOSURE THAT THEY 22 WERE TALKING ABOUT IN THESE PAPERS. 23 THERE WERE TWO INDIVIDUALS THAT HAD WHAT THEY 24 CONSIDERED TO BE RELATIVELY LOW LEVELS OF EXPOSURE. 25 Q "THEY," MEANING THE AUTHORS IN 1939? 26 A YES. 27 Q PLEASE CONTINUE. 28 A AND THESE PEOPLE WERE EXPOSED TO LESS -- WHAT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (40 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4171 1 THEY CONSIDERED TO BE LOW, WHICH THEY TERMED LESS THAN 25 OR 2 LESS THAN 10 PARTS PER MILLION. AND, ACTUALLY, THE TWO 3 INDIVIDUALS INVOLVED, ONE OF THEM HAD SOME KIND OF BLOOD 4 DISORDER THAT COULD HAVE BEEN LIKE WHAT WE CALL "MILD 5 DYSPLASTIC SYNDROME" OR "PRELEUKEMIA." 6 THE OTHER ONE LOOKED LIKE THEY HAD SOMETHING 7 CALLED "PERNICIOUS ANEMIA," WHICH ACTUALLY ISN'T KNOWN TO BE 8 RELATED TO BENZENE. 9 BUT, AT ANY RATE, THEY FOUND TWO INDIVIDUALS. 10 AND SO THE QUESTION THAT I HAD BEEN ASKED ABOUT THIS AND THEY 11 SAID "NO SAFE LEVEL," THEY WERE REALLY BASING THIS UPON WHAT I 12 WOULD CONSIDER TO BE VERY HIGH LEVELS OF EXPOSURE, GIVEN OUR 13 TIME FRAME TODAY. SO THEY WERE LOOKING -14 LIKE I SAID, THEY WERE LOOKING AT PEOPLE WHO HAD 15 THESE VERY HIGH LEVELS OF EXPOSURE, AND THEY WERE MAKING THESE 16 STATEMENTS BASED ON WHAT THEY CONSIDERED TO BE VERY LOW LEVELS 17 OF EXPOSURE, WHICH WE WOULD TODAY CONSIDER TO BE VERY HIGH 18 LEVELS OF EXPOSURE. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (41 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 Q SO LET'S SEE WHAT THEY ACTUALLY WRITE. 20 NOW READING FROM THIS 1948 DOCUMENT: (READING) 21 THE AMERICAN STANDARDS ASSOCIATION AND MOST 22 STATES HAVE SET AN ARBITRARY LIMIT OF 100 P.P.M. AS THE 23 MAXIMUM PERMISSIBLE BENZENE CONCENTRATION FOR WORKERS EXPOSED 24 TO THIS SUBSTANCE DURING AN 8-HOUR DAY. MASSACHUSETTS AND 25 OREGON HAVE SET LIMITS OF -- AND THEN YOU CAN'T READ IT 26 BECAUSE SOMEBODY THREE-HOLE PUNCHED THE ORIGINAL OF THAT -27 WHEREAS, NEW YORK CONSIDERS 50 PARTS PER MILLION AS THE 28 HIGHEST PERMISSIBLE LEVEL. INASMUCH AS THE BODY DEVELOPS NO file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (42 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4172 1 TOLERANCE TO BENZENE, AND AS THERE IS A WIDE VARIATION IN 2 INDIVIDUAL SUSCEPTIBILITY, IT IS GENERALLY CONSIDERED THAT THE 3 ONLY ABSOLUTELY SAFE CONCENTRATION FOR BENZENE IS ZERO. THE 4 INADEQUACY OF A LIMIT OF 100 P.P.M. IS INDICATED BY 5 WELL-AUTHENTICATED REPORTS OF AT LEAST TWO CASES OF BENZENE 6 POISONING FOLLOWING EXPOSURE TO ONLY 75 P.P.M. A LIMIT OF 50 7 P.P.M. OR LESS IS STRONGLY RECOMMENDED, PARTICULARLY WHERE 8 EXPOSURES ARE RECURRENT. SKIN CONTACT SHOULD BE AVOIDED. 9 SO, DR. WHYSNER, IN THIS A.P.I. DOCUMENT, 10 DR. DRINKER AT HARVARD AND DR. CLINTON, THE AUTHOR OF THIS, 11 ARE ACTUALLY URGING A 50 PARTS PER MILLION 8-HOUR 12 TIME-WEIGHTED AVERAGE EXPOSURE LIMIT. IS THAT HOW YOU 13 INTERPRET THIS? 14 A YES. 15 Q COMPARED WITH 25 -- AND MR. MOLINA WAS AT 16 FIRESTONE COMPARED WITH ONE TODAY; IS THAT RIGHT? 17 A YES. FOR THE P.E.L. 18 Q AND THEN THIS ARTICLE GOES ON TO TALK ABOUT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (43 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 TREATMENT OF BENZENE POISONING: (READING) 20 ACUTE POISONING BY BENZENE SHOULD BE CONSIDERED 21 AS AN ACUTE EMERGENCY. 22 IT GOES ON AND ON ABOUT THAT. 23 IT TALKS ABOUT TREATMENT OF CHRONIC BENZENE 24 POISONING. 25 THERE'S A SECTION ABOUT EXAMINATIONS: (READING) 26 THE PRE-EMPLOYMENT EXAMINATION SHOULD INCLUDE A 27 DETAILED HISTORY, PHYSICAL EXAMINATION, CHEST X-RAY AND 28 COMPLETE BLOOD COUNT. GOES ON. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (44 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4173 1 IT TALKS ABOUT PERIODIC RE-EXAMINATIONS: 2 (READING) 3 THEIR FREQUENCY BEING DETERMINED BY THE SEVERITY 4 OF THE EXPOSURE. 5 THE A.P.I. HAS A SECTION 7 ON PRECAUTIONARY 6 MEASURES. IN PART THEY WRITE: (READING) 7 THE SAFETY MEASURES NECESSARY FOR THE PREVENTION 8 OF BENZENE POISONING ARE PRIMARILY THOSE DESIGNED TO PREVENT 9 INHALATION OF BENZENE VAPORS. VENTILATION, EITHER BY DILUTION 10 OR LOCAL EXHAUST, SHOULD BE SO DESIGNED AS TO PREVENT TOXIC 11 CONCENTRATIONS OF THE VAPORS FROM REACHING THE BREATHING ZONE 12 OF THE WORKERS. 13 AND THEN AS WE INDICATED, THESE PHYSICIANS LIST 14 25 REFERENCES FROM THE LITERATURE TO SUPPORT THE SCIENTIFIC 15 STATEMENTS THEY MAKE. 16 IS THAT HOW YOU INTERPRET THIS? 17 A YES. 18 MR. RIFF: THAT'S ALL THE QUESTIONS I HAVE. THANK YOU file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (45 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 VERY MUCH. 20 THE COURT: MR. WAGNON, WHENEVER YOU'RE READY. 21 MR. WAGNON: THANK YOU, YOUR HONOR. 22 I'LL MOVE EXHIBIT 133 INTO EVIDENCE. THIS IS 23 THE A.P.I. TOXICOLOGICAL REVIEW OF BENZENE THAT HAS BEEN 24 DISPLAYED EXTENSIVELY HERE. 25 THE COURT: ANY OBJECTION? 26 MR. RIFF: IT'S HEARSAY WITHIN HEARSAY HERE. CAN WE 27 RESERVE ON THAT AND DISCUSS IT LATER? 28 THE COURT: YES. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (46 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4174 1 MR. RIFF: THANK YOU, YOUR HONOR. 2 THE COURT: YOU CAN CERTAINLY USE THIS WITH THIS 3 WITNESS AS IT HAS BEEN USED EXTENSIVELY ON CROSS-EXAMINATION. 4 MR. WAGNON: THANK YOU. ALTHOUGH THAT WAS REDIRECT. 5 THE COURT: IT WAS, WASN'T IT? IT WAS REDIRECT 6 EXAMINATION. APPARENTLY, I CAN'T EVEN THINK THIS MORNING. 7 GO AHEAD, MR. WAGNON. 8 9 RECROSS-EXAMINATION 10 BY MR. WAGNON: 11 Q SIR, THE A.P.I. DOCUMENT ALSO HAS A SECTION IN 12 IT THAT TALKS ABOUT SKIN ABSORPTION, AND MR. RIFF SKIPPED OVER 13 THIS PART SO I WANTED TO COVER IT. 14 IT TALKS ABOUT: (READING) 15 THE PRODUCTION OF SYSTEMIC BENZENE POISONING BY 16 SKIN ABSORPTION HAS RECEIVED SCANT ATTENTION IN THE LITERATURE 17 AND DEFINITIVE INFORMATION ON THE SUBJECT IS NOT AVAILABLE. 18 THEN IT GOES ON TO SAY: (READING) file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (47 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 SKIN ABSORPTION IS DIFFICULT TO DISTINGUISH AS 20 INHALATION OF BENZENE VAPOR WOULD ACCOMPANY IT AND CONFUSE THE 21 PICTURE UNLESS A MASK WAS WORN. HOWEVER, REPUTABLE 22 AUTHORITIES HAVE STATED VERBALLY THAT SKIN ABSORPTION IS 23 EXTENSIVE AND SHOULD BE AVOIDED. 24 NOW, THE CONFUSION OF THE PICTURE THERE, THEY'RE 25 MAKING REFERENCE TO THE FACT THAT IF SOMEONE IS, SAY, WASHING 26 THEIR HANDS WITH BENZENE, THAT THEY'RE ALSO INHALING THE 27 VAPORS THAT WOULD HAVE BENZENE IN IT AS WELL. 28 IS THAT THE CONFUSION THEY'RE TALKING ABOUT? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (48 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4175 1 A WELL, I DON'T KNOW EXACTLY WHAT IT'S REFERRING 2 TO IN TERMS OF WASHING ONE'S HANDS. I THINK WHAT THEY'RE 3 TALKING ABOUT IS, FOR EXAMPLE, PEOPLE IN THE PLIOFILM COHORT 4 WOULD HAVE OBVIOUSLY HAVE BEEN EXPOSED NOT ONLY TO BENZENE 5 THROUGH INHALATION BUT ALSO TO DERMAL ABSORPTION FROM BENZENE. 6 AND IN THOSE STUDIES THE METRIC THAT WE TALKED ABOUT WHERE 7 THEY'RE ACTUALLY COMPARING PART PER MILLION YEARS TO OUTCOMES, 8 IN TERMS OF ACUTE MYELOGENOUS LEUKEMIA, WOULD ALSO HAVE 9 INCLUDED SOME DERMAL EXPOSURE. BUT THEY DIDN'T INCLUDE THAT 10 BECAUSE IT'S DIFFICULT TO ANALYZE THAT SPECIFICALLY. 11 SO I THINK IN ANY OF THESE STUDIES THAT WE'VE 12 BEEN TALKING ABOUT, IT'S IMPORTANT TO NOTE THAT THERE WILL BE 13 DERMAL ABSORPTION OF BENZENE THAT GOES ALONG WITH THE BENZENE 14 THAT IS BEING TALKED ABOUT IN TERMS OF THE AMOUNT IN THE AIR. 15 Q DO YOU AGREE WITH THE STATEMENT THAT SKIN 16 ABSORPTION IS EXTENSIVE AND SHOULD BE AVOIDED? 17 A WELL, IT CAN BE EXTENSIVE. I KNOW THAT SINCE 18 THAT TIME THERE HAVE BEEN A NUMBER OF STUDIES THAT HAVE BEEN file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (49 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 DONE ON ACTUALLY THE QUESTION OF SKIN ABSORPTION OF BENZENE, 20 AND IT'S SOMEWHAT ABSORBED FROM THE SKIN, BUT THERE ARE OTHER 21 CHEMICALS THAT HAVE A LOT MORE SKIN ABSORPTION. THEY'VE DONE 22 STUDIES IN MONKEYS. THEY'VE USED HUMAN SKIN IN A CHAMBER IN 23 ORDER TO STUDY THESE KINDS OF EFFECTS. 24 SO I WOULD SAY THAT IT COULD BE EXTENSIVE IF THE 25 WHOLE BODY WAS EXPOSED. BUT IN TERMS OF IT BEING ABSORBED 26 THROUGH THE SKIN, I WOULD SAY THAT IT RANKS IN THE GROUPING OF 27 CHEMICALS SOMEWHERE IN THE MIDDLE. 28 Q WELL, YOU DO AGREE THAT THE A.P.I. CONCLUDED IN file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (50 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4176 1 1948 THAT SKIN ABSORPTION IS EXTENSIVE AND SHOULD BE AVOIDED. 2 YOU DO AGREE WITH THAT, SIR? 3 A WELL, AS I SAID AGAIN, THE REPUTABLE AUTHORITIES 4 HAVE STATED VERBALLY THAT SKIN ABSORPTION IS EXTENSIVE, BUT I 5 KNOW THERE HAVE BEEN EXPERIMENTAL STUDIES SINCE THEN. 6 I GUESS IT DEPENDS WHAT YOU MEAN BY "EXTENSIVE." 7 CERTAINLY, I DON'T BELIEVE IT'S ANYWHERE NEAR AS MUCH AS THE 8 AMOUNT THAT PEOPLE GET EXPOSED TO THROUGH INHALATION IN THE 9 WORKPLACE. 10 Q SIR, MY QUESTION WAS A SIMPLE ONE. 11 DIDN'T THE A.P.I. SAY IN 1948 THAT SKIN 12 ABSORPTION IS EXTENSIVE AND SHOULD BE AVOIDED? 13 A YES. 14 Q THANK YOU. 15 AND IN FACT, AGAIN, LATER IN THE SAME DOCUMENT 16 THEY REPEAT THE STATEMENT IN TERMS OF PRECAUTIONS THAT SKIN 17 CONTACT SHOULD BE AVOIDED, DON'T THEY? 18 A YES. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (51 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 Q AND, AGAIN, A THIRD TIME, THEY SAY: (READING) 20 SKIN CONTACT AND POSSIBLE DERMATITIS FROM 21 BENZENE SHOULD BE AVOIDED ENTIRELY IF POSSIBLE, BUT IF THE 22 HANDS MUST CONTACT THE SOLVENT, THEN NEOPRENE GLOVES OR 23 PROTECTIVE CREAMS SHOULD BE USED. 24 THE A.P.I. SAID THAT IN 1948, DIDN'T THEY? 25 A YES, FOR EXPOSURES TO PURE BENZENE. 26 Q NOW, YOU WERE ASKED ON REDIRECT ABOUT LOOKING AT 27 THE VARIOUS REVIEW ARTICLES. AND I WAS -- I JUST WANTED TO 28 CLEAR UP A FEW THINGS. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (52 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4177 1 YOU DIDN'T CITE ANY OF THE REVIEW ARTICLES IN 2 ANY OF YOUR CHARTS, DID YOU? 3 A NO. 4 Q BUT YOU DID SEE THE REVIEW ARTICLES, DIDN'T YOU? 5 A WELL, AS I MENTIONED TO YOU BEFORE, I LOOK AT 6 THE REVIEW ARTICLES PRIMARILY TO TRY TO FIND ALL OF THE 7 LITERATURE THAT THEY'RE BASED UPON. 8 Q WELL, BUT THAT WOULD MEAN THAT YOU NEEDED TO 9 LOOK AT AND CONSIDER THE REVIEW ARTICLES. SO YOU DID DO THAT, 10 DIDN'T YOU? 11 A WELL, FOR SOME OF THE REVIEW ARTICLES, YES, I 12 DID. 13 Q WELL, DID YOU NOTICE THAT THE REVIEW ARTICLES 14 CONTAINED OPINIONS ABOUT THE RELATIONSHIP BETWEEN 15 NON-HODGKIN'S LYMPHOMA AND EXPOSURE TO PETROCHEMICAL SOLVENTS? 16 A YES. BUT I WAS ASKED TO FORM MY OWN OPINION IN 17 THIS CASE. 18 Q RIGHT. BUT DID YOU NOTICE ALONG THE WAY THAT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (53 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 OTHERS HAD DONE SIMILAR THINGS? THAT THEY HAD REVIEWED THE 20 LITERATURE? THAT THEY HAD FORMED OPINIONS? AND THAT THEY HAD 21 PUBLISHED THEIR OPINIONS IN THE PEER-REVIEWED LITERATURE? 22 A WELL, ACTUALLY, I TRIED TO -23 I WOULDN'T SAY TRY TO AVOID THAT, BUT I TRIED 24 NOT TO BE SWAYED SO I CAN DO MY OWN INDEPENDENT REVIEW OF THE 25 LITERATURE. 26 Q WELL, DID YOU NOTICE THAT THERE WERE A NUMBER OF 27 THESE REVIEW ARTICLES THAT DISAGREED WITH YOUR OPINION WITH 28 RESPECT TO WHETHER OR NOT PETROCHEMICAL SOLVENTS CAN INDUCE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (54 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4178 1 NON-HODGKIN'S LYMPHOMA? 2 A WELL, THERE ARE REVIEW ARTICLES THAT SAY BOTH 3 SIDES OF THIS ISSUE AND -4 AS I SAID, I DIDN'T GO THROUGH A CATALOGUING OF 5 REVIEWING ARTICLES. AND, AGAIN, THE REVIEW ARTICLES THAT WE 6 WERE DISCUSSING THE OTHER DAY REALLY DIDN'T FOCUS NECESSARILY 7 ON PETROCHEMICAL SOLVENTS. THEY WERE FOCUSING ON SOLVENTS. 8 AND SO, AGAIN, IT WAS THE SAME PROBLEM THAT I 9 HAD WITH MANY OF THE STUDIES WHERE THEY WERE PUTTING ALL 10 SOLVENTS TOGETHER, AND I WAS TRYING TO LOOK FOR INFORMATION 11 SPECIFICALLY ON PETROCHEMICAL SOLVENTS. 12 Q SIR, YOU MENTIONED I.A.R.C. -13 A YES. 14 Q -- A FEW MOMENTS AGO? 15 I.A.R.C. AT ONE TIME DID ADDRESS PETROCHEMICAL 16 SOLVENTS? 17 A YES. 18 Q WHAT YEAR DID THEY DO THAT? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (55 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 A WELL, THEY -20 I CAN'T REMEMBER THE EXACT YEAR THAT THEY DID 21 OVERALL BUT, FOR EXAMPLE, IN 1999 THEY DID TOLUENE, AND THEY 22 DID XYLENES AND WHICH I CONSIDER TO BE PETROCHEMICAL SOLVENTS 23 AND THE MAJOR -24 WELL, CERTAINLY PROMINENT CONSTITUENTS IN THE 25 KIND OF MIXTURES WE'RE TALKING ABOUT. EARLIER THEY HAD LOOKED 26 AT GASOLINE SOLVENT; SOME SOLVENT MIXTURES LIKE STODDARD 27 SOLVENT; AND SO THEY HAVE BEEN REVIEWING SOME OF THESE, BUT 28 MOST RECENTLY IS 1999. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (56 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4179 1 Q WHEN WAS THE ONE WHEN THEY REVIEWED GASOLINE? 2 A I THINK IT WAS 1989, BUT I'M NOT 100 PERCENT 3 SURE. I BELIEVE THAT'S THE DATE ON THAT. 4 Q SINCE 1989 THERE HAVE BEEN A NUMBER OF ARTICLES 5 THAT HAVE LOOKED AT NON-HODGKIN'S LYMPHOMA AND ITS 6 RELATIONSHIP TO PETROCHEMICAL SOLVENTS, HAVEN'T THERE? 7 A YES. 8 Q IN FACT, IN TERMS OF THE ARTICLES THAT CONCLUDE 9 THAT THERE IS A RELATIONSHIP, NEARLY ALL OF THOSE HAVE BEEN 10 PUBLISHED SINCE 1989, HAVEN'T THEY? 11 A I DON'T KNOW WHAT YOU MEAN BY "RELATIONSHIP." 12 Q HOW ABOUT FOR A LARGER -- A SIGNIFICANT 13 ASSOCIATION IN TERMS OF THE STANDARD INCIDENCE RATIO OR 14 STANDARD MORTALITY RATIO BEING HIGHER THAN ONE AND THE RESULT 15 BEING SIGNIFICANT? 16 A WELL, AS I MENTIONED BEFORE, THERE HAVE BEEN 17 STUDIES THAT HAVE DONE BOTH. 18 LET ME MAYBE EXPLAIN SOMETHING ABOUT HOW file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (57 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 I.A.R.C. WORKS BECAUSE I KNOW A LITTLE BIT ABOUT IT -20 Q SIR, I'M JUST ASKING ABOUT THE STUDIES THAT WERE 21 PUBLISHED SINCE 1989. THAT MOST OF THE STUDIES OUT THERE THAT 22 HAVE FOUND A RELATIONSHIP, A STATISTICAL RELATIONSHIP TO 23 EXIST, MOST OF THEM HAVE BEEN PUBLISHED SINCE 1989; ISN'T THAT 24 TRUE? 25 A YES, THAT'S CORRECT. 26 MR. WAGNON: THAT'S ALL I HAVE. THANK YOU. 27 THE COURT: ANYTHING FURTHER, MR. RIFF? 28 /// file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (58 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4180 1 FURTHER REDIRECT EXAMINATION 2 BY MR. RIFF: 3 Q DR. WHYSNER, IN ORDER TO COMPLETE AN ANSWER 4 ABOUT I.A.R.C., IS THERE SOMETHING THAT YOU WANTED TO TELL US 5 ABOUT HOW I.A.R.C. WORKS? 6 A YES. THAT WAS THAT WHAT I.A.R.C. DOES IS THAT 7 IT PERIODICALLY REVIEWS THE DATA THAT IS AVAILABLE. AND THEN 8 IF THEY BELIEVE THAT A RE-REVIEW OF THAT INFORMATION MIGHT 9 PRODUCE A SIGNIFICANT CHANGE IN THEIR CLASSIFICATION SYSTEM, 10 THEN THEY MAKE IT PART OF A WORKING GROUP. AND I'VE BEEN 11 INVOLVED IN WORKING GROUPS THAT HAVE RE-REVIEWED CHEMICALS 12 THAT HAD PREVIOUSLY BEEN REVIEWED BECAUSE NOW THERE HAD BEEN 13 WHAT THEY CONSIDERED TO BE SIGNIFICANT NEW INFORMATION. 14 MR. RIFF: NO OTHER QUESTIONS. 15 MR. WAGNON: NOTHING FURTHER. 16 THE COURT: YOU MAY STEP DOWN, SIR, OR WHY DON'T YOU 17 JUST STAY THERE. YOU'RE EXCUSED. 18 ANY FURTHER WITNESSES FOR THE DEFENSE? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (59 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 MR. RIFF: NO. HOWEVER, I THINK WE HAVE A STIPULATED 20 EXHIBIT THAT WE ARE HOPING TO PUT IN BEFORE THE CLOSE OF ALL 21 OF THE EVIDENCE, IF I'M NOT MISTAKEN. NOW WOULD BE A GOOD 22 TIME FOR THAT. 23 THE COURT: YES. NOW IS A GOOD TIME. WE MAY HAVE SOME 24 OTHER EXHIBIT ISSUES AS WELL. 25 MR. WAGNON: YOUR HONOR, THIS IS A STIPULATED EXHIBIT. 26 IT CONSISTS OF A SERIES OF CHARTS. IT'S MULTIPLE PAGES, BUT I 27 THINK IT COULD BE JUST MARKED AS ONE EXHIBIT. 28 THE COURT: THAT WOULD BE FINE. I THINK THE NEXT WOULD file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (60 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4181 1 BE 134. 2 (MARKED FOR IDENTIFICATION 3 EXHIBIT 134, 14 PAGES, CHARTS.) 4 THE COURT: DO YOU WANT TO DESCRIBE IT FOR THE RECORD? 5 MR. WAGNON: YES, YOUR HONOR. 6 THIS IS A SERIES OF CHARTS; PROVIDES DATA 7 REGARDING THE YEARLY SUPPLY OF SOLVENTS THAT WERE USED IN 8 VARIOUS FIRESTONE PRODUCTS, AND IT IDENTIFIES THE RELATIVE 9 QUANTITIES OF SUCH SOLVENTS THAT WERE SUPPLIED BY CHEVRON, 10 UNION OIL AND SHELL, BASED UPON AVAILABLE DATA THAT WE HAVE 11 THAT WAS PRODUCED IN DISCOVERY. 12 THE COURT: LOOKS LIKE 14 PAGES; IS THAT RIGHT? IT'S 13 ONLY PAPER CLIPPED HERE. SO I WANT TO MAKE SURE WE'VE GOT 14 CLOSURE ON WHAT WE HAVE. 15 MS. KAHN: I HAVE 14 PAGES, YOUR HONOR. 16 THE COURT: 134 THEN IS RECEIVED. 17 (RECEIVED IN EVIDENCE 18 EXHIBIT 134.) file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (61 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THE COURT: WITH THAT, DEFENSE RESTS? 20 MR. RIFF: YES, WE DO, YOUR HONOR. 21 THE COURT: ANY REBUTTAL OTHER THAN THE DOCUMENTS THAT 22 REMAIN TO BE DISCUSSED IN TERMS OF MOVING THEM INTO EVIDENCE? 23 MR. WAGNON: NO, YOUR HONOR. 24 WE DO HAVE SOME DOCUMENTS TO MOVE INTO EVIDENCE, 25 BUT WE HAVE NO WITNESSES IN REBUTTAL AT THIS TIME. 26 THE COURT: SO MY SUGGESTION WOULD BE THAT WE DEAL WITH 27 THOSE EXHIBITS AND ANY OBJECTIONS THAT THERE MIGHT BE OUT OF 28 THE PRESENCE OF THE JURY AND THEN INFORM THE JURY TOMORROW, file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (62 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4182 1 WHICH EXHIBITS HAVE BEEN RECEIVED, IF THAT'S ALL RIGHT. 2 MR. WAGNON: YES. 3 MR. RIFF: YES, YOUR HONOR. 4 THE COURT: VERY GOOD. 5 THEN, LADIES AND GENTLEMEN, WE BROUGHT YOU IN 6 HERE ALL THE WAY TODAY, BUT WE'RE GOING TO EXCUSE YOU FOR THE 7 REST OF THE DAY, BUT IT WAS IMPORTANT, OBVIOUSLY, THAT WE 8 FINISH THIS WITNESS. SO COUNSEL AND I WILL BE BUSY THE 9 REMAINDER OF THE DAY FINALIZING JURY INSTRUCTIONS, MAKING SURE 10 THAT ALL DOCUMENTS THAT NEED TO BE IN EVIDENCE ARE IN 11 EVIDENCE, AND TOMORROW MORNING WHEN YOU COME WE WILL READ -- I 12 WILL PROVIDE YOU WITH JURY INSTRUCTIONS, AND I WILL READ THEM 13 TO YOU AND YOU CAN FOLLOW ALONG AND THEN WE WILL HAVE CLOSING 14 ARGUMENTS AND THEN A FEW JURY INSTRUCTIONS AFTER THAT. AND 15 THEN JUST DEPENDING ON THE TIMING, YOU'LL EITHER START TO 16 DELIBERATE TOMORROW OR THE FOLLOWING DAY. 17 SO WE WILL SEE YOU TOMORROW AT 9 O'CLOCK. 18 REMEMBER, AGAIN, COMING CLOSE TO THE END NOW, DON'T DISCUSS file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (63 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THE CASE WITH ANYONE. DON'T FORM ANY OPINIONS ON IT UNTIL WE 20 HAVE THE INSTRUCTIONS, THE ARGUMENTS AND THE MATTER IS 21 SUBMITTED TO YOU, AND WE'LL SEE YOU TOMORROW MORNING AT 9:00. 22 THANK YOU VERY MUCH. 23 24 (THE FOLLOWING PROCEEDINGS WERE HELD 25 OUTSIDE THE PRESENCE OF THE JURY:) 26 27 THE COURT: JURORS AND ALTERNATES HAVE LEFT THE 28 COURTROOM. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (64 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4183 1 BEFORE I TURN OFF THE CLOCK, IF YOU'RE 2 INTERESTED, PLAINTIFFS HAVE 12 HOURS AND 5 MINUTES. 3 DEFENDANTS HAVE 8 HOURS AND 32 MINUTES. THOSE ARE SOME VERY 4 LONG CLOSINGS, IF YOU TAKE ALL THAT TIME, AND I'LL BRING MY 5 NO-DOZ. 6 WHAT I PROPOSE THAT WE DO IS I THINK I'M GOING 7 TO -- IF MS. NAVARRO IS WILLING -- I THINK I'M GOING TO GIVE 8 HER MY EXHIBITS LIST SO SHE CAN CHECK THAT OVER. I THOUGHT WE 9 WOULD GO AHEAD AND DISCUSS JURY INSTRUCTIONS FIRST. 10 THEN I'LL LET YOU WORK WITH EACH OTHER AND THE 11 CLERK, IF NECESSARY, ON EXHIBITS. IF WE NEED ANY ARGUMENT ON 12 ANY EXHIBITS, I'LL HEAR THAT. AND THEN HOPEFULLY WE'LL BE 13 DONE. 14 I ANTICIPATE THAT THERE MAY BE A COUPLE OF 15 INSTRUCTIONS THAT I ASKED YOU TO WORK ON TOGETHER. SO 16 HOPEFULLY WE CAN GET ALL THAT DONE THIS MORNING OR INTO THE 17 NOON HOUR AND GET DONE. 18 DOES THAT SOUND ALL RIGHT? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (65 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 MR. RIFF: WITH ONE CAVEAT: THE DEFENSE HAS A SERIES 20 OF MOTIONS FOR DIRECTED VERDICT. 21 THE COURT: OH, THE MOTIONS. WHEN DO YOU WANT TO DO 22 THOSE? 23 MR. RIFF: WELL, WE PROBABLY SHOULD DO THEM PRIOR TO 24 JURY INSTRUCTIONS SINCE THEY WILL BE THEORETICALLY FOR EFFECT 25 FOR WHAT INSTRUCTIONS ARE GIVEN. 26 THE COURT: LET ME TAKE A MOMENT AND GIVE SOME THINGS 27 TO MS. NAVARRO, AND SO WE'LL BE IN RECESS A FEW MINUTES AND 28 THEN I WILL BE BACK. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (66 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4184 1 (RECESS.) 2 (THE FOLLOWING PROCEEDINGS WERE 3 HAD IN OPEN COURT OUT OF THE 4 PRESENCE OF THE JURORS:) 5 6 THE COURT: COUNSEL ARE PRESENT. JURORS AND ALTERNATES 7 ARE NOT PRESENT. 8 MR. RIFF HAS ONE OR MORE MOTIONS ON BEHALF OF 9 DEFENSE. 10 MR. RIFF: WE DO, YOUR HONOR. GOOD MORNING AGAIN. 11 WE HAVE A SERIES OF MOTIONS FOR DIRECTED VERDICT 12 OR PARTIAL DIRECTED VERDICT. 13 AND WOULD THE COURT PREFER TO DO THESE SERIATIM, 14 OR WOULD THE COURT PREFER THAT I MAKE ALL THE MOTIONS AT ONCE 15 TO WHICH COUNSEL CAN THEN RESPOND? OR WOULD THE COURT PREFER 16 TO KNOW WHAT THEY ARE FIRST? 17 THE COURT: WELL, WHY DON'T YOU ORGANIZE THEM AS YOU 18 WISH, AND THEN I THINK IT'S PROBABLY BETTER IF YOU SET file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (67 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 EVERYTHING FORTH AND THEN LET MR. WAGNON SPEAK. IS THAT ALL 20 RIGHT? 21 IT'S REALLY UP TO COUNSEL, BUT IS THAT ALL 22 RIGHT, MR. WAGNON? 23 MR. WAGNON: SURE, THAT'S FINE. 24 THE COURT: FINE. WHY DON'T WE DO THAT. 25 MR. RIFF: WELL, THE FIRST MOTION WE HAVE, YOUR HONOR, 26 IS A MOTION FOR DIRECTED VERDICT AS TO THE FIRST CAUSE OF 27 ACTION ON THE FIRST AMENDED COMPLAINT, WHICH I BELIEVE IS THE 28 OPERATIVE PLEADING. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (68 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4185 1 THIS IS A -- THE FIRST CAUSE OF ACTION PURPORTS 2 TO BE COMMON LAW NEGLIGENCE. AND THE OPERATIVE WORDING -- I 3 SHOULD SAY THE SPECIFICATIONS OF NEGLIGENCE ASSERTED ARE FOUND 4 IN PARAGRAPH 22. I WILL NOT BURDEN THE RECORD WITH ALL OF 5 THOSE VERBS. 6 THE MOTION, HOWEVER, IS FOR A DIRECTED VERDICT 7 ON THAT COMMON LAW NEGLIGENCE GROUND, UNDERSTANDING THAT BY 8 MAKING THIS MOTION WE ARE NOT BY THIS MOTION SEEKING A 9 DIRECTED VERDICT ON ANY SPECIES OF FAILURE TO WARN, WHETHER 10 NEGLIGENT FAILURE TO WARN OR STRICT LIABILITY FAILURE TO WARN. 11 IN OUR VIEW THAT IS A DIFFERENT COLLECTION OF ISSUES. 12 BUT THERE IS NO EVIDENCE, IN OUR JUDGMENT, FROM 13 WHICH A REASONABLE JURY CAN CONCLUDE THAT OUR CLIENTS WERE 14 OTHERWISE NEGLIGENT IN THE VARIOUS SPECIFICATIONS INDICATED IN 15 PARAGRAPH 22. 16 WE'VE HAD SOME OFF-THE-RECORD CONVERSATIONS 17 ABOUT THIS, AND I'M NOT GOING TO SEEK TO PARAPHRASE 18 PLAINTIFFS' VIEW ON THIS. I'LL JUST SAY IN OUR VIEW IT IS NOT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (69 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 ENOUGH SIMPLY TO SAY THAT THE DEFENDANTS WERE NEGLIGENT IN ALL 20 WAYS OR WORDS TO THAT EFFECT, AND LET THE JURY SORT OUT 21 WHETHER THAT'S TRUE OR NOT TRUE. 22 SO THAT IS OUR FIRST MOTION. WITH THAT SAID, 23 SHALL I THEN CONTINUE? 24 THE COURT: WELL, KNOWING WHAT THIS IS THEN, MR. 25 WAGNON, WHAT WOULD BE YOUR PREFERENCE IN TERMS OF RESPONDING? 26 WOULD YOU RATHER HEAR EVERYTHING AND GO BACK, OR WOULD YOU 27 RATHER HEAR ONE AT A TIME? 28 WHAT ELSE DO YOU HAVE CATEGORY-WISE? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (70 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4186 1 MR. RIFF: WELL, I HAVE A MOTION FOR DIRECTED VERDICT 2 ON THE STRICT LIABILITY AND NEGLIGENT FAILURE TO WARN AS TO 3 ALL CLIENTS, ALL DEFENDANTS UNDER THE JOHNSON LINE. THAT IS 4 TO SAY, THAT THE SOPHISTICATION AND KNOWLEDGE -- RELEVANT 5 SOPHISTICATION AND KNOWLEDGE OF FIRESTONE ELIMINATED THE DUTY 6 TO WARN EITHER UNDER NEGLIGENCE OR STRICT LIABILITY. IT'S THE 7 SAME DUTY. SO WE HAVE THAT. 8 DEPENDING UPON YOUR RULING OF THAT, I MAY HAVE A 9 VARIANT OF THAT THAT PERTAINS TO TWO OF THE THREE DEFENDANTS. 10 WE WILL HAVE A MOTION FOR DIRECTED VERDICT BASED 11 ON STRICT LIABILITY, DESIGN DEFECT ON THE RISK BENEFIT PRONG, 12 ON THE GROUNDS THAT -- WELL, THAT THERE'S NO -13 THERE'S UNCONTROVERTED EVIDENCE THAT THESE 14 SOLVENTS AND THESE DESIGNS ARE NECESSARY TO BUILD TIRES. 15 THERE IS NO EVIDENCE TO THE CONTRARY. 16 AND IT WILL BE OUR POSITION THAT THE RISK, AS 17 ASSERTED BY THE PLAINTIFFS, WAS UNKNOWABLE BY RESORT TO THE 18 WORLD'S AVAILABLE MEDICAL AND SCIENTIFIC KNOWLEDGE UNTIL A file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (71 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 TIME AFTER MR. MOLINA WAS NO LONGER WORKING AT FIRESTONE. 20 SO EVEN IF THERE WAS A RISK THAT ONE COULD SAY 21 EXISTED IN THE 2008, THE EVIDENCE WILL SHOW OR HAS KNOWN THAT 22 THAT RISK WAS UNKNOWN AND UNKNOWABLE FOR PURPOSES OF THIS TORT 23 THEORY AT THE RELEVANT TIMES. 24 SO WITH THAT AND THEN WE WILL MOVE FOR A 25 DIRECTED VERDICT ON THE PUNITIVE DAMAGES CLAIM. AND THE SHORT 26 HEADNOTE OF THAT IS THAT NO REASONABLE JURY COULD FIND UNDER 27 THE CLEAR AND CONVINCING STANDARD THE TYPE OF CONSCIOUS 28 DISREGARD IN VIOLENT, CONTEMPTIBLE CONDUCT -- THAT IN FACT THE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (72 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4187 1 ONLY EVIDENCE BEFORE THE COURT FROM THE DEFENDANTS -2 THE COURT: OKAY. ALL RIGHT. DON'T ARGUE IT. 3 I'M JUST ASKING, MR. WAGNON, WHAT DO YOU WANT TO 4 DO? DO YOU WANT TO RESPOND TO THESE ONE AT A TIME OR ALL 5 TOGETHER? YOUR CHOICE. 6 MR. WAGNON: I CAN DO IT EITHER WAY, YOUR HONOR. 7 REALLY IT'S FOR THE BENEFIT OF THE COURT, SO IT'S WHATEVER IS 8 GOING TO WORK THE BEST FOR THE COURT IN TERMS OF RULING ON 9 THEM. 10 THE COURT: OKAY. WELL, WHY DON'T WE HEAR THEM ALL, 11 AND THEN I'LL LET MR. WAGNON SPEAK. 12 MR. RIFF: OKAY. 13 WELL, I HAVE NOTHING FURTHER TO SAY ABOUT THE 14 MOTION FOR DIRECTED VERDICT ON THE -- WHAT I'M CALLING 15 "GENERAL COMMON LAW NEGLIGENCE." 16 TURNING TO THE STRICT LIABILITY, FAILURE TO 17 WARN, AND NEGLIGENT FAILURE TO WARN CLAIM, IT IS OUR POSITION 18 UNDER THE JOHNSON CASE AND THE AUTHORITIES CITED THEREIN THAT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (73 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THE UNCONTROVERTED EVIDENCE IN THIS CASE IS THAT ALL RELEVANT 20 TIMES FROM 1963 TO 1980, FIRESTONE WAS A KNOWLEDGEABLE AND 21 SOPHISTICATED INTERMEDIARY BETWEEN THE DEFENDANTS AND THE 22 PLAINTIFF. 23 THE UNCONTROVERTED EVIDENCE THAT CAME IN THROUGH 24 DR. CORN IS THAT ON THE KEY ISSUE, I THINK, IS THAT IF 25 FIRESTONE HAD RESORTED TO THE WORLD'S SCIENTIFIC AND MEDICAL 26 LITERATURE WITHOUT LIMITATIONS, AND HE MADE CLEAR THAT THAT 27 WAS COMING FROM THE TESTIMONY OF DR. HUSSER AND MR. BALLOU, 28 AND OF COURSE THE COURT HAS HEARD IN EXTENSIVE DETAIL file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (74 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4188 1 GENERALLY ABOUT THE SOPHISTICATION AND KNOWLEDGE AND SIZE OF 2 FIRESTONE WITH RESPECT TO ITS INDUSTRIAL HYGIENE SAFETY AND 3 MEDICAL OPERATION. 4 THE COURT ALSO KNOWS THAT AT THE TIME, AT ALL 5 TIMES RELEVANT, THERE WAS A LEGAL OBLIGATION IN THE STATE OF 6 CALIFORNIA UNDER LABOR CODE SECTION 6400 AND 6401 AND 6402 7 THAT -- I PARAPHRASE -- THE EMPLOYER IS OBLIGATED TO PROVIDE A 8 SAFE PLACE FOR THE EMPLOYEE TO WORK AND TO DO ALL THINGS TO 9 REMOVE ANY RISK OF HARM. 10 SO IF THERE EVER WAS A CASE OF SOPHISTICATED 11 INTERMEDIARY OF A SOPHISTICATED EMPLOYER, THIS IS IT. 12 I REMIND THE COURT THAT THE UNCONTROVERTED 13 EVIDENCE IS THAT IT WAS FIRESTONE WHO WOULD REVIEW WHATEVER 14 INFORMATION WAS COMING IN FROM SUPPLIERS, TOGETHER WITH 15 RESORTS TO ALL THE OTHER INFORMATION IT HAD AVAILABLE TO IT, 16 AND IT WAS FIRESTONE THAT THEN CAME UP WITH WARNINGS AND SAFE 17 HANDLING INSTRUCTIONS FOR ITS EMPLOYEES. 18 SO I'LL JUST LEAVE IT WITH THAT TO SAY THAT IF file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (75 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THIS IS NOT A CASE OF A JOHNSON VERSUS AMERICAN STANDARD 20 SOPHISTICATED EMPLOYER, THEN I DON'T THINK CALIFORNIA LAW WILL 21 EVER HAVE SUCH A CASE. THE EVIDENCE IS OVERWHELMING AND 22 UNCONTROVERTED ON THAT POINT. 23 IT DID DAWN ON ME, YOUR HONOR, THAT THE COURT 24 MIGHT BE OF THE VIEW THAT THERE IS MORE EVIDENCE ON THAT POINT 25 IN THE 1970 TO '80 PERIOD THAN IN THE 1963 TO '70 PERIOD. 26 I WOULD DISAGREE WITH THAT. I THINK THAT THE 27 KEY EVIDENCE OF THE EXISTENCE OF THESE VARIOUS OFFICES WITHIN 28 FIRESTONE FROM '63 -- AT LEAST FROM '63 ON -- BOTH AT THE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (76 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4189 1 CORPORATE AND LOCAL LEVEL, ELIMINATES THAT DISTINCTION. 2 BUT, YOUR HONOR, IF YOU THINK THAT'S AN 3 IMPORTANT DISTINCTION OR WERE TO ARGUE THAT WERE AN IMPORTANT 4 DISTINCTION, I WOULD LIKE TO SPECIFICALLY DRAW THE COURT'S 5 ATTENTION TO EXHIBIT 121 IN EVIDENCE, WHICH IS FIRESTONE'S 6 SAFETY MANUAL DISCUSSION OF THE SUBSTANCE BENZENE, DATED APRIL 7 1, 1971, WHERE IT EXPLICITLY STATES IN PART THAT, QUOTE: 8 (READING) 9 EFFECTS ON THE BLOOD-FORMING SYSTEMS 10 PREDOMINATE. CHANGES IN BLOOD CELLS ARE COMMON. ANEMIA AND 11 LEUKEMIA MAY OCCUR. 12 AS OF APRIL 1, 1971, WERE THERE ANY DOUBT, THIS 13 DOCUMENT LAYS TO REST THE DOUBT THAT FIRESTONE KNEW THAT 14 BENZENE WAS A HUMAN CARCINOGEN, OR WAS AT LEAST POTENTIALLY A 15 HUMAN CARCINOGEN AND NEEDED NO INFORMATION FROM ANY SUPPLIERS 16 ON THAT POINT BECAUSE IT KNEW IT AS OF THAT DAY. 17 NOW, I WOULD REMIND THE COURT THAT PLAINTIFFS' 18 EXPERT, DR. INFANTE, CONCEDED THAT IT IS HIS OPINION THAT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (77 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 WHATEVER THE SUPPLIERS KNEW, FIRESTONE ALSO KNEW. AND I HAVE 20 A DIRECT QUOTE FROM HIM THAT I THINK IS WORTH MY DIGGING OUT. 21 (PAUSE.) 22 MR. RIFF: OR AT LEAST GIVING YOU A REFERENCE IN THE 23 TRANSCRIPT ON THE POINT. 24 IT'S AT PAGE 1830 OF THE TRANSCRIPT. THIS IS 25 FROM MY NOTES. I HOPE THAT THIS -- IT HAS QUOTES AROUND MY 26 NOTES. I HOPE THIS IS AN ACCURATE STATEMENT OF WHAT HE SAID. 27 QUOTE: (READING) 28 IN MY OPINION THE INFORMATION WAS AVAILABLE IN file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (78 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4190 1 THE LITERATURE, AND IF THEY HAD INDUSTRIAL HYGIENISTS 2 REVIEWING THE LITERATURE, THEN THEY SHOULD HAVE BEEN AWARE OF 3 WHAT'S IN THE LITERATURE. 4 AT 1831: (READING) 5 IF FIRESTONE KNEW OF THE HEALTH HAZARDS RELATED 6 TO EXPOSURE TO SOME SOLVENTS, FIRESTONE SHOULD HAVE CONVEYED 7 THAT INFORMATION TO ITS EMPLOYEES. 8 QUOTE: (READING) 9 YES, IF THEY KNEW, THEY SHOULD HAVE CONVEYED IT, 10 AND I AM SAYING YES. 11 NOW, THE REASON I FOCUSED ON 71 AND EXHIBIT 121, 12 IS I WOULD POINT OUT FROM EXHIBIT 134, WHICH WAS THE LAST 13 THING TO COME INTO EVIDENCE, YOU CAN SEE, YOUR HONOR, THAT 14 DEFENDANTS SHELL AND UNION OIL SOLD NO PRODUCT, NO RELEVANT 15 PRODUCT IN THIS CASE TO THIS FACILITY UNTIL 1973. 16 SO, LEST THIS NOT BE OBVIOUS, WHILE I AM MOVING 17 ON BEHALF OF ALL DEFENDANTS FOR THE ENTIRE PERIOD, I AM 18 CERTAINLY MOVING ON BEHALF OF SHELL AND UNOCAL ON THIS GROUND, file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (79 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 BECAUSE NOW THE UNCONTROVERTED EVIDENCE THERE IS THAT THEY 20 SOLD ONLY AFTER FIRESTONE'S OWN SAFETY MANUAL EXPLICITLY SHOWS 21 US WHAT THEY KNEW ABOUT THE RISK OF HARM FROM BENZENE. 22 THE COURT: OKAY. I DO HAVE THAT CALL I HAVE TO TAKE 23 FROM THE ASSISTANT PRESIDING JUDGE. I HAVE TO DO THAT NOW. 24 MAYBE YOU SHOULD TALK ABOUT ANYTHING YOU THINK YOU CAN MAKE 25 PROGRESS ON, BUT ONE THING I MIGHT SUGGEST IS YOU CAN WORK ON 26 THE SOPHISTICATED INTERMEDIARY INSTRUCTION, OR -27 ONE THING I THINK WE DO NEED TO GIVE THE JURY 28 GUIDANCE ON IS WHAT THEY SHOULD MAKE OF THE FEDERAL STANDARDS, file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (80 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4191 1 AND PLAINTIFF HAS A PROPOSED INSTRUCTION ON THAT. 2 I'M NOT QUITE SURE THAT THAT CAPTURED -- THAT 3 YOUR VERSION OF IT CAPTURED WHAT WE NEED TO TELL THEM, BUT WE 4 NEED TO SAY -5 I THINK WE NEED TO SAY IT'S NOT CONCLUSIVE TO 6 APPLY CALIFORNIA LAW. BUT I ALSO THINK WE SHOULD ALSO SAY 7 IT'S SOMETHING YOU CAN CONSIDER IN APPLYING CALIFORNIA LAW. 8 SO MAYBE IT'S SOMETHING YOU CAN AGREE ON. JUST TRYING TO MOVE 9 THINGS FORWARD HERE. 10 11 (RECESS.) 12 13 (WHEREUPON AT 11:02 A.M. THE FOLLOWING 14 PROCEEDINGS RESUMED IN OPEN COURT 15 OUT OF THE PRESENCE OF THE JURORS:) 16 17 THE COURT: WE ARE BACK ON THE RECORD WITHOUT THE JURY. 18 GO AHEAD, MR. RIFF. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (81 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 MR. RIFF: THANK YOU, YOUR HONOR. 20 I BELIEVE I HAD CONCLUDED MY COMMENTS ON THE 21 DIRECTED VERDICT ON THE FAILURE TO WARN THEORY UNDER THE 22 JOHNSON AUTHORITY. 23 MS. KAHN URGES ME TO ACKNOWLEDGE THAT I 24 UNDERSTAND -- AND I KNOW THE COURT UNDERSTANDS WELL -- THAT 25 THE JOHNSON CASE IS A SOPHISTICATED EMPLOYEE AS OPPOSED TO A 26 SOPHISTICATED EMPLOYER CASE. I KNOW THE COURT HAS DEALT WITH 27 THAT ANALYSIS AT SOME LENGTH IN OUR SUMMARY JUDGMENT, SO I 28 ACKNOWLEDGE FOR THE RECORD THAT POINT. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (82 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4192 1 BUT OUR VIEW IS THAT THE COURT'S ANALYSIS ON OUR 2 SUMMARY JUDGMENT IS CORRECT AND CERTAINLY THAT DOCTRINE WOULD 3 APPLY TO A SOPHISTICATED INTERMEDIARY/EMPLOYER AS FIRESTONE IS 4 IN THIS CASE. 5 I GUESS A VARIANT OF THIS MOTION FOR DIRECTED 6 VERDICT WOULD BE A MOTION FOR PARTIAL DIRECTED VERDICT ON THE 7 PROPOSITION THAT IN FACT FIRESTONE IS SO SOPHISTICATED AND 8 KNOWLEDGEABLE. THERE IS NO EVIDENCE TO THE CONTRARY. 9 PLAINTIFFS HAVE NOT ATTEMPTED TO REFUTE OR CONTROVERT THAT 10 FACT. NO JURY, NO REASONABLE JURY COULD FIND FROM THIS 11 EVIDENCE OTHER THAN THAT. 12 SO WE WOULD URGE IF THE COURT IS NOT GOING TO 13 GRANT THE DIRECTED VERDICT ON THE ISSUE OF DUTY, THUS 14 ELIMINATING THOSE LEGAL THEORIES, AT A MINIMUM THE COURT 15 SHOULD GRANT A PARTIAL DIRECTED VERDICT ON THE FACT QUESTION 16 OF ITS SOPHISTICATION, SO THAT THE JURY WOULD NOT HAVE TO SO 17 DECIDE IN ITS DELIBERATIONS. 18 MOVING ON TO THE STRICT LIABILITY DESIGN DEFECT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (83 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 UNDER THE RISK BENEFIT CAUSE OF ACTION, WE, THE DEFENDANTS, 20 MOVE FOR A DIRECTED VERDICT ON THAT GROUND ON THESE 21 PROPOSITIONS. 22 LET ME JUST FIRST ACKNOWLEDGE THAT I UNDERSTAND 23 I THINK THE WAY CALIFORNIA LAW WORKS HERE, WHICH IS THAT ONCE 24 A PLAINTIFF HAS MADE A PRIMA FACIE SHOWING THAT THE QUOTE, 25 "DESIGN," END QUOTE, OF THE PRODUCT WAS THE CAUSE OF HIS OR 26 HER HARM, THE BURDEN THEN SHIFTS TO THE DEFENDANTS TO SHOW 27 THAT THE BENEFITS OF THAT DESIGN OUTWEIGH THE RISKS. 28 SO I BELIEVE I UNDERSTAND THAT ON THIS RECORD, file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (84 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4193 1 AT LEAST ARGUABLY -- AND I WANT TO COME BACK TO THIS POINT -2 AT LEAST ARGUABLY THIS BURDEN NOW RESIDES ON THE DEFENDANTS ON 3 THE RISK BENEFIT QUESTION. 4 TO REPEAT WHAT I SAID EARLIER, THE BENEFIT OF 5 THE DESIGN OF THESE PRODUCTS HAS NOT BEEN CHALLENGED BY THE 6 PLAINTIFFS, AND THE DEFENDANTS HAVE SHOWN THAT THESE ARE 7 BENEFICIAL DESIGNS; THAT TIRES CANNOT BE BUILT WITHOUT THEM. 8 WE HEARD THAT FROM DR. INFANTE. HE TOLD US THAT. WE HEARD 9 THAT FROM ART WESP, THE SHELL SOLVENT SALESMAN WHO SERVICED 10 THE TIRE INDUSTRY FOR SOME DECADES. WE HEARD IT FROM DR. 11 CORN, AND WE HAVE NOT HEARD FROM THE CONTRARY. WE HAVE NOT 12 HEARD FROM ANYBODY THAT YOU COULD BUILD THESE TIRES IN THOSE 13 DAYS WITHOUT PRODUCTS OF THIS DESIGN. 14 SO THAT IS THE BENEFIT PRONG, AND THE LEGAL 15 QUESTION, IT SEEMS TO ME, IS: WELL, IS THERE NOW ON THIS 16 EVIDENCE A TRIABLE ISSUE OF FACT ON THE RISK SIDE? 17 AND WE URGE NOT BECAUSE WE TOOK SOME PAINS TO 18 SHOW THAT THE SCIENTIFIC AND MEDICAL KNOWLEDGE THAT CAME TO file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (85 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 LIGHT RELATIVE TO SUCH A CLAIMED RISK DID NOT EXIST AT THE -20 WELL, AT THE EARLIEST WAS 1979. THERE IS A SINGLE ARTICLE BY 21 VIANNA -- V-I-A-N-N-A -- IN HOLLAND THAT DR. INFANTE MADE 22 REFERENCE TO, BUT EVERY OTHER ARTICLE THAT WOULD SUGGEST SUCH 23 A RISK EXISTED IS FROM 1980 AND THEREAFTER. AND AS RECENTLY 24 AS THIS MORNING, YOUR HONOR, YOU HEARD US ARGUING ABOUT PAPERS 25 FROM 2004 AND 2006. 26 SO, IN LIGHT OF WHAT WAS KNOWN OR KNOWABLE, WE, 27 THE DEFENDANTS, COULD NOT HAVE APPRECIATED THAT RISK. THE 28 TORT OF STRICT LIABILITY IS NOT YET IN THIS STATE AN INSURANCE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (86 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4194 1 THEORY. WE ARE NOT INSURERS FOR UNFORESEEABLE, UNKNOWABLE 2 CONSEQUENCES OF THE DESIGN OF OUR PRODUCTS. 3 A PREMISE OF PRODUCT LIABILITY IS THAT THE 4 SUPPLIER VOLITIONALLY SUPPLIES PRODUCT, PUTS IT OUT INTO THE 5 MARKETPLACE FOR SALE OR FOR DISTRIBUTION, AND OUR VOLITION IN 6 DOING SO IS INFORMED BY WHAT IS KNOWN OR KNOWABLE. 7 SO I WILL LEAVE IT AT THAT. THAT'S OUR POINT. 8 NOW, YOUR HONOR, IN MY EARLIER LISTING OF 9 MOTIONS, I NEGLECTED TO IDENTIFY A MOTION THAT IS CRITICAL, 10 AND I WILL TELL YOU WHAT IT IS NOW. 11 WE MOVE FOR A DIRECTED VERDICT ON ALL CAUSES OF 12 ACTION ON THE GROUND THAT THERE HAS NOT BEEN ADEQUATE 13 IDENTIFICATION BY THE PLAINTIFFS ON THE EVIDENCE OF THIS CASE 14 THAT THE SOLVENTS THAT ARE THE SUBJECT OF OUR PRODUCTS, 15 INDIVIDUALLY OR IN COMBINATION, ARE THE SOLVENTS THAT ARE 16 CAPABLE UNDER THE PLAINTIFFS' THEORY OF THE CASE OF CAUSING OR 17 INCREASING THE RISK OF NON-HODGKIN'S LYMPHOMA. 18 ON THIS POINT I REMIND THE COURT OF THE CANDID file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (87 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 CONCESSION BY DR. WEISENBURGER, WHO TOLD US THAT THERE ARE 20 THOUSANDS OF ORGANIC SOLVENTS; THAT HE DID NOT KNOW WHETHER 21 THE SOLVENTS COMPRISING THESE PRODUCTS, THE DEFENDANTS' 22 SUBJECT PRODUCTS, ARE OR ARE NOT WITHIN THOSE THAT IN HIS 23 OPINION THE LITERATURE SHOWS ARE CAPABLE OF CAUSING OR 24 INCREASING THE RISK OF NON-HODGKIN'S LYMPHOMA. 25 I ASKED HIM IF HE COULD DO SO WITHOUT GUESSING 26 OR SPECULATING, AND HE SAID, NO, HE COULD NOT. DR. INFANTE 27 DID NO BETTER. HE SPOKE QUITE BROADLY ABOUT SOLVENTS. AT 28 PAGE 1761 OF THE TRANSCRIPT HE SPOKE ABOUT THE MIXTURES OF file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (88 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4195 1 ALL -- THAT'S AS SPECIFIC AS HE GOT. THE MIXTURES OF ALL OF 2 THEM. 3 NOW, THIS IS NOT A SMALL PROBLEM, NOR IS IT 4 UNPRECEDENTED IN CALIFORNIA LAW. THIS IS THE LOCKHEED CASE, 5 AND I REMIND THE COURT, AND I WISH I HAD THAT CITE HANDY. I 6 WILL GET IT FOR YOU BEFORE WE COME BACK THIS AFTERNOON. 7 I KNOW SOMETHING ABOUT THE LOCKHEED CASE. IT IS 8 MY CASE. IT IS MY MS. KAHN'S CASE. WE HAVE BEEN REPRESENTING 9 THOSE DEFENDANTS SINCE 1989 IN SUPERIOR COURT. THE CASE HAS 10 BEEN TRIED SIX TIMES TO THE COURT OF APPEALS. AND THERE IS 11 ONE PUBLISHED OPINION IN THE LOCKHEED SERIES OF CASES IN THE 12 COURT OF APPEAL THAT REMAINS THE LAW OF THE STATE OF 13 CALIFORNIA. 14 I JUST DIGRESS TO TELL YOU THERE WAS GOING TO BE 15 ANOTHER OPINION IN THE LOCKHEED COLLECTION OF CASES IN THE 16 CALIFORNIA SUPREME COURT, BUT POST-BRIEFING -17 THE COURT: I KNOW IT WELL. 18 MR. RIFF: YOU'RE AWARE OF THAT CIRCUMSTANCE. FINE. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (89 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 WELL, THE CASE THAT IS THE LAW OF THE STATE OF 20 CALIFORNIA DEALT WITH THIS ISSUE. THE PLAINTIFF'S EVIDENCE 21 WAS THAT A COLLECTION OF CHEMICALS FOUND IN THE PAINTING 22 INDUSTRY WERE CAPABLE OF CAUSING CANCER, BUT THE PLAINTIFF'S 23 EXPERTS COULD NOT LINK -- COULD NOT IDENTIFY AND LINK WHICH 24 CHEMICALS SPECIFICALLY WITHIN THE LITERATURE ON WHICH THEY 25 RELIED TO THE SPECIFIC CHEMICALS THAT WERE SUBJECT OF THE 26 LAWSUIT. 27 AND I BELIEVE THAT OPINION IS BY JUSTICE TURNER, 28 IF I'M NOT MISTAKEN, AND THAT CASE STANDS FOR THE PROPOSITION file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (90 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4196 1 THAT THAT ISN'T GOOD ENOUGH. IT IS NOT GOOD ENOUGH TO SAY 2 THAT A CHEMICAL WAS IN THE NEIGHBORHOOD WHEN THE OFFENSE 3 OCCURRED, IF I CAN SPEAK FIGURATIVELY. 4 IF A COLLECTION OF CHEMICALS, A THROUGH K, IN 5 COMBINATION APPARENTLY ARE ASSOCIATED WITH AN INCREASED RISK 6 OF AN ADVERSE OUTCOME, IT IS NOT ENOUGH TO SAY THAT CHEMICAL D 7 WAS PRESENT. THERE HAS TO BE SPECIFIC EXPERT TESTIMONY THAT 8 CHEMICAL D WAS A CAUSE, AND THAT IS MISSING IN THIS CASE. 9 SO THE RULE OF LOCKHEED PERTAINS AND WOULD 10 RESULT IN A -- OR OUGHT TO RESULT IN A DIRECTED VERDICT AS TO 11 THE ENTIRE CASE. 12 LAST, WE ARE MOVING FOR A PARTIAL DIRECTED 13 VERDICT ON PUNITIVE DAMAGES. THIS COURT NEEDS NO GREAT 14 ORATORY FROM ME ABOUT PUNITIVE DAMAGES. I KNOW THE COURT IS 15 QUITE EXPERT IN THE AREA. 16 LET ME JUST COMMENT TO SAY THAT -- AT LEAST THE 17 ONLY EVIDENCE ADDUCED FROM THE DEFENDANTS, THAT IS TO SAY, THE 18 DEFENDANTS' WITNESSES, WHETHER CALLED UNDER 776 OR OTHERWISE, file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (91 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 IS THAT THEY TRIED TO PROVIDE ADEQUATE WARNINGS AND WERE 20 CONCERNED WITH THE HEALTH AND SAFETY OF USERS OF THEIR 21 PRODUCTS. 22 NOW, OUR VIEW IS THAT GIVING THE PLAINTIFFS THE 23 BENEFIT OF EVERY INFERENCE, AS I THINK YOU MUST ON A MOTION 24 LIKE THIS, THE MOST ONE CAN SAY IS THAT THE DEFENDANTS MADE A 25 MISTAKE AND THEY WERE NEGLIGENT; THAT THEY DIDN'T APPRECIATE 26 SOMETHING THAT THEY SHOULD HAVE APPRECIATED. AND THE WORST 27 ONE COULD SAY IS THAT THEY UNREASONABLY FAILED TO PROVIDE A 28 WARNING OR SAFE-USE INSTRUCTION. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (92 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4197 1 BUT THERE IS NO EVIDENCE HERE OF CONSCIOUS 2 DISREGARD OF ANYBODY'S INTERESTS. THERE IS NO EVIDENCE OF 3 PUTTING PROFIT BEFORE SAFETY. THERE IS NO -4 THERE'S JUST NONE OF THAT, YOUR HONOR. AND I 5 KNOW YOU KNOW A PUNITIVE DAMAGE CASE WHEN YOU HEAR IT, AND 6 THIS IS NOT ONE. IT IS APPROPRIATE FOR THE YOU NOW TO DIRECT 7 A VERDICT ON PUNITIVE DAMAGES. 8 THAT IS OUR SUBMISSION. THANK YOU. 9 THE COURT: VERY GOOD. 10 MR. WAGNON, WHENEVER YOU'RE READY. 11 MR. WAGNON: I'M READY. 12 THE COURT: ALL RIGHT. 13 MR. WAGNON: AND I'LL JUST GO DOWN THE LIST IN THE SAME 14 ORDER SINCE IT SEEMS THE LOGICAL WAY TO DO IT. 15 NUMBER ONE, THE MOTION FOR A DIRECTED VERDICT ON 16 THE COMMON LAW THEORY OF NEGLIGENCE. WE HAVE ESSENTIALLY 17 THREE LEGAL THEORIES UNDER WHICH WE'RE PROCEEDING AT THIS 18 POINT, AND NEGLIGENCE IS ONE OF THEM. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (93 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 NEGLIGENCE IN THIS CASE KIND OF FILLS IN THE 20 GAPS, IF YOU WILL, THAT ARE LEFT UNCOVERED PERHAPS BY THE 21 THEORY THAT THIS COMPANY SHOULD -- OR THESE COMPANIES SHOULD 22 BE LIABLE FOR THEIR FAILURE TO WARN. 23 AND THE WAY IN WHICH IT FILLS IN THE GAPS IS 24 THIS: THAT IF A RESTRICTED VIEW OF FAILURE TO WARN IS 25 APPLIED, WHERE FAILURE TO WARN APPLIES ONLY TO CONDUCT WITH 26 RESPECT TO WHAT WAS ON LABELING OR THE -- I SHOULD USE MY 27 TERMS MORE CORRECTLY. 28 THE LABEL THAT WAS ON THE PRODUCT AND THE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (94 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4198 1 LABELING THAT ACCOMPANIED THE PRODUCT -- WHICH IN THIS CASE I 2 THINK WOULD TRANSLATE INTO THE M.S.D.S. OR THE EQUIVALENT OF 3 THAT -- IF THAT IS THE TOTAL SCOPE OF WHAT THE FAILURE TO WARN 4 THEORY MUST BE CONFINED TO, THEN IT'S OUR CONTENTION THAT 5 THERE ARE ACTIONS THAT WENT BEYOND THOSE THAT WERE DESCRIBED 6 BY WITNESSES, THAT DEALT WITH OTHER CONDUCT THAT ALSO WAS 7 RELEVANT HERE THAT SUPPORTS A THEORY THAT THESE DEFENDANTS 8 WERE NEGLIGENT IN THEIR FAILURE TO PROVIDE INFORMATION THAT 9 THEY SHOULD HAVE BEEN PROVIDING. 10 THE OTHER PART OF THE NEGLIGENCE IS THE 11 NEGLIGENCE IN THE FORMULATION OF THE PRODUCT. AND I'M GOING 12 TO GET MORE INTO DETAIL ABOUT THIS IN THE RISK VERSUS BENEFITS 13 ARGUMENT, BUT I'LL GIVE YOU A SHORT PREVIEW OF IT. AND THAT 14 IS, IS THAT MR. RIFF TALKED ABOUT SOLVENTS BEING NECESSARY TO 15 MAKE TIRES. AND WE CONCEDE THAT. THERE'S NO DISPUTE THAT 16 SOLVENTS WERE NECESSARY TO MAKE TIRES. 17 THE PROBLEM IS, IS THAT WHAT SOLVENTS WERE 18 NECESSARY TO MAKE TIRES WAS NOT A SINGLE FORMULA. IN FACT, file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (95 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THE EVIDENCE WAS THAT IT WAS POSSIBLE TO MANIPULATE THAT 20 FORMULA IN DIFFERENT WAYS. THAT THE PRODUCT WAS A MIXTURE OF 21 VARIOUS THINGS. AND WHEN A REQUEST WAS MADE TO CHANGE THAT 22 MIXTURE, THAT REQUEST WAS COMPLIED WITH. IN FACT, I BELIEVE 23 THE EVIDENCE WAS THAT SEVERAL DIFFERENT COMPILATIONS WERE 24 PROVIDED. 25 THE POINT IS, IS THAT TIRES CAN BE MADE WITH 26 SOLVENTS, BUT WHAT SOLVENT IS PROVIDED IS A VARIABLE. AND 27 THAT VARIABLE WAS IN THE CONTROL OF THESE MANUFACTURERS. AND 28 THE MANUFACTURERS WERE PROVIDING DIFFERENT VERSIONS AS file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (96 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4199 1 REQUESTED, AS NEEDED, AND PART OF WHAT THEY SHOULD HAVE BEEN 2 TAKING INTO ACCOUNT WHEN PROVIDING THOSE DIFFERENT MIXTURES IS 3 THE HAZARDS INHERENT IN THOSE PRODUCTS, ESPECIALLY WITH 4 RESPECT TO BENZENE CONTENTS, BECAUSE OF THE KNOWLEDGE AT THAT 5 TIME THAT BENZENE WAS A CARCINOGEN. 6 SO GETTING BACK TO THE NEGLIGENCE ISSUE, THERE 7 ARE TWO ASPECTS OF THEIR CONDUCT WHICH I THINK COMES UNDER 8 NEGLIGENCE. ONE IS THE FAILURE TO COMMUNICATE HAZARDS ABOUT 9 THE PRODUCTS, AND THE OTHER IS THE FAILURE TO PROVIDE A 10 HAZARD-FREE PRODUCT OR A PRODUCT THAT HAD SHARPLY REDUCED THE 11 LEVEL OF HAZARD. 12 BOTH ACTIONS ARE ACTIONS THAT THESE DEFENDANTS 13 CONTROLLED IN TERMS OF THEIR ACTIVITIES, AND WE HAVE EVIDENCE 14 IN THE RECORD THAT THERE ARE CHOICES THAT THEY MADE THAT 15 CONTRIBUTED TO THE INJURY IN THIS CASE IN TERMS OF FAILING TO 16 WARN ABOUT A CANCER POTENTIAL AND PROVIDING A PRODUCT THAT HAD 17 A HIGHER DEGREE OF BENZENE CONTENT THAN EVIDENTLY WAS 18 NECESSARY AND NEEDED IN ORDER TO DO THE JOB IN TERMS OF MAKING file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (97 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THE TIRES. 20 SO, BOTTOM LINE IS OUR EVIDENCE OF NEGLIGENCE 21 IS, IN ADDITION TO THE FAILURE TO PROVIDE SPECIFIC WARNING 22 INFORMATION IN THE WARNING DOCUMENTS, THAT IS THE M.S.D.S.'S, 23 THEY ALSO FAILED TO PROVIDE IN OTHER FORMS, SUCH AS ADDITIONAL 24 WRITTEN COMMUNICATIONS THEY COULD HAVE PROVIDED. ORAL 25 COMMUNICATIONS THEY COULD HAVE PROVIDED. 26 SECONDLY, THAT THEY WERE NEGLIGENT IN THEIR 27 FAILURE TO REFORMULATE THE PRODUCTS IN WAYS THAT AVOIDED THIS 28 HIGH LEVEL OF BENZENE WHICH COULD CAUSE CANCER AND THEREFORE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (98 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4200 1 WAS A PART OF THE HAZARD OF THE PRODUCT. 2 SO THAT IS OUR NEGLIGENCE THEORY. I THINK THAT 3 IT DEALS WITH FACTS THAT ARE SEPARATE FROM THE FAILURE TO WARN 4 THEORY, AND BECAUSE OF -- AND IT OVERLAPS A BIT, OF COURSE, 5 WITH THE DESIGN DEFECT THEORY, BUT NEGLIGENCE AND DESIGN 6 DEFECTS HAVE ALWAYS OVERLAPPED. I MEAN, THAT'S THE NATURE OF 7 THOSE THEORIES. 8 SO BASED ON THAT I WOULD ARGUE THAT BECAUSE 9 THERE IS SUFFICIENT EVIDENCE IN THE RECORD FROM WHICH THE JURY 10 COULD CONCLUDE THAT THESE DEFENDANTS ARE NEGLIGENT, THAT YOU 11 MUST DENY THAT MOTION FOR DIRECTED VERDICT ON THAT ISSUE. 12 LET'S MOVE ON THEN TO THE FAILURE TO WARN ISSUE. 13 AND THIS ONE IS REALLY BASED ON JOHNSON, AND IT REQUIRES THAT 14 I DEAL WITH THE JOHNSON CASE IN THE CONTEXT OF THIS AS BEING A 15 COMPLETE DEFENSE IN TERMS OF WHAT FIRESTONE KNEW OR SUPPOSEDLY 16 SHOULD HAVE KNOWN. 17 FIRST OF ALL, I HOPE IT IS CLEAR FROM THE 18 RECORD, AND I'D LIKE TO RESTATE IT AT THIS TIME IN TERMS OF file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (99 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 OUR POSITION. OUR POSITION IS, IS JOHNSON APPLIES TO THE 20 INDIVIDUAL PLAINTIFF USER OF THE PRODUCT WHO BECOMES HARMED, 21 AND THE KNOWLEDGE THAT THAT PERSON HAS OR THAT THAT PERSON 22 SHOULD HAVE BECAUSE THEY ARE A MEMBER OF A TRADE OR A 23 PROFESSION WHERE THE HAZARD IS COMMONLY KNOWN. THAT'S THE 24 LIMITS OF THE JOHNSON CASE. 25 WHAT IS BEING ARGUED IN THIS CASE IS THAT 26 JOHNSON CAN APPLY TO THE EMPLOYER OF THAT INDIVIDUAL, NAMELY, 27 FIRESTONE IN THIS CASE. I DID NOT PARTICIPATE IN THE 28 ARGUMENTS IN THE BRIEFING WITH RESPECT TO THAT ISSUE, BUT MY file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (100 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4201 1 UNDERSTANDING IS, IS THAT THE COURT HAS ADOPTED THE 2 DEFENDANTS' VIEW THAT JOHNSON CAN APPLY BEYOND THE SITUATION 3 WITH THE INDIVIDUAL AND CAN APPLY TO THE EMPLOYER IF THE 4 EMPLOYER OCCUPIES AND HAS THE REQUISITE CHARACTERISTICS THAT 5 THE INDIVIDUAL PLAINTIFF HAD IN THE JOHNSON CASE. 6 SO WE OBVIOUSLY DISAGREE WITH THE COURT WITH 7 RESPECT TO THAT POSITION, AND WE DO WHATEVER WE NEED TO DO 8 HERE TO RESERVE OUR RIGHTS TO APPEAL ON THAT POINT. 9 SO LET ME THEN PROCEED ON WITH THE ARGUMENT. 10 GIVEN THAT JOHNSON THEN APPLIES, WHAT DO WE HAVE IN THE FACTS 11 OF THIS CASE? AND WHAT'S IMPORTANT ABOUT THE JOHNSON CASE 12 THAT I THINK IF YOU'RE GOING TO APPLY IT, THAT'S REALLY 13 IMPORTANT IS THE LANGUAGE FOUND ON PAGE -- LET'S SEE. IT 14 WOULD BE PAGE -- ON THE 43 CAL.4TH VERSION, PAGE -- LOOKS LIKE 15 67. IT'S THE LANGUAGE THAT APPEARS JUST ABOVE THE HEADING OF 16 FIERRO VERSUS INTERNATIONAL HARVESTER. AND I'LL READ THE 17 PARAGRAPH OR THE LAST SENTENCE FROM THE PARAGRAPH THAT I 18 WANTED TO DRAW THE COURT'S ATTENTION TO. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (101 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 IT SAYS: (READING) 20 JUST AS A MANUFACTURER NEED NOT WARN ORDINARY 21 CONSUMERS ABOUT GENERALLY-KNOWN DANGERS, A MANUFACTURER NEED 22 NOT WARN MEMBERS OF A TRADE OR PROFESSION, PAREN, 23 (SOPHISTICATED USERS), CLOSE PAREN, ABOUT DANGERS GENERALLY 24 KNOWN TO THAT TRADE OR PROFESSION. 25 NOW, IN THE JOHNSON CASE, THE FACTS WERE THAT 26 YOU HAD A PLAINTIFF WHO WAS A MEMBER OF A TRADE OR PROFESSION, 27 BUT THAT PLAINTIFF EVIDENTLY PROFESSED OR THERE WAS SOME 28 QUESTION ABOUT THE ACTUAL KNOWLEDGE THAT THAT INDIVIDUAL HAD. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (102 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4202 1 BUT THE EVIDENCE WAS THAT MEMBERS OF THAT TRADE 2 OR PROFESSION HAD THAT KNOWLEDGE. THAT THIS WAS A PARTICULAR 3 TRADE THAT INVOLVED SOPHISTICATED PEOPLE WHO DID PARTICULAR 4 THINGS WITH THIS PIPING, AND THIS HAZARD NEED NOT HAVE BEEN 5 WARNED ABOUT BECAUSE MEMBERS OF THE TRADE WHOSE BUSINESS IT 6 WAS TO OPERATE ON THIS KIND OF PIPING KNEW ABOUT THIS HAZARD, 7 EVEN IF THIS PARTICULAR PLAINTIFF HAD BEEN SLEEPING THAT DAY 8 AND NOT PAYING ATTENTION TO THE INFORMATION WHEN IT WAS 9 DISTRIBUTED AMONG THAT PROFESSION. 10 OKAY. SO WHAT WE HAVE HERE IS NOT JUST ARE THEY 11 SOPHISTICATED, BUT DO THEY HAVE THE SPECIFIC KNOWLEDGE? 12 EITHER IN THIS CASE DOES FIRESTONE HAVE THE SPECIFIC KNOWLEDGE 13 ABOUT THE HAZARD, OR IS THIS PARTICULAR HAZARD KNOWN TO THE 14 TRADE OR PROFESSION THAT FIRESTONE IS PART OF SO THAT 15 EVERYBODY IN THAT TRADE OR PROFESSION KNOWS ABOUT THIS HAZARD? 16 AND IN THE JOHNSON CASE THERE WAS OVERWHELMING 17 EVIDENCE THAT EVERYBODY IN THE TRADE OR PROFESSION KNEW ABOUT 18 THIS HAZARD. IT WAS REGULARLY COVERED IN TRAINING SESSIONS. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (103 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 IT WAS REPEATED AD NAUSEAM IN VARIOUS MANUALS AND STUFF. 20 THE COURT: IT WAS UNDISPUTED ON SUMMARY JUDGMENT IN 21 THAT POSTURE. 22 MR. WAGNON: I THINK IT WAS. I THINK IT WAS. 23 AND HERE WE DON'T HAVE THAT SAME SITUATION. 24 HERE WE HAVE IT HIGHLY DISPUTED. IN FACT, WE LACK SPECIFIC 25 EVIDENCE. REMEMBER IT'S DEFENDANTS' BURDEN ON THIS, OF 26 COURSE. WE LACK SPECIFIC EVIDENCE OF WHAT THE TRADE OR 27 PROFESSION OF TIRE MANUFACTURERS SPECIFICALLY KNEW ABOUT THE 28 CANCER POTENTIAL OF BENZENE. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (104 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4203 1 THEY WERE SOPHISTICATED AS TIRE MANUFACTURERS? 2 YES, THEY WERE. DID THEY HAVE DOCTORS IN THEIR EMPLOY? YES, 3 THEY DID. WERE THERE MEDICAL LIBRARIES FROM WHICH THEY COULD 4 HAVE GOTTEN THE INFORMATION? WELL, YES, BUT THAT'S NOT THE 5 STANDARD. THAT'S NOT THE STANDARD IN TERMS OF THE FACT THAT 6 THE INFORMATION IS OUT THERE IN SOME MEDICAL LIBRARY, AND IF 7 YOU'RE SMART ENOUGH AND YOU KNOW WHICH LIBRARIES HAVE THIS 8 STUFF, AND YOU KNOW HOW TO USE THE THINGS AND YOU CAN READ THE 9 MEDICAL INFORMATION YOU FIND, AND YOU CAN CORRECTLY INTERPRET 10 IT -- THE FACT THAT IT'S OUT THERE AND SOMEBODY WHO IS A 11 RESEARCHER CAN UNCOVER IT ISN'T THE STANDARD HERE. 12 THE STANDARD HERE IS GENERALLY KNOWN TO THE 13 TRADE OR PROFESSION. AND THAT STANDARD THEY HAVEN'T MET UNDER 14 THE EVIDENCE. 15 WHAT EVIDENCE ARE THEY POINTING TO? WELL, 16 THEY'RE POINTING TO THE FACT THAT THERE WAS A RELIANCE WITHIN 17 THE FIRESTONE ORGANIZATION UPON INFORMATION PROVIDED BY THE 18 MANUFACTURER. AND THE TESTIMONY WAS FROM EXPERTS, INCLUDING file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (105 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 DR. CORN, WAS THAT THAT RELIANCE WAS REASONABLE. THERE WAS 20 TESTIMONY ABOUT THAT THERE'S A WHOLE EXPECTATION IN O.S.H.A. 21 THAT THERE WOULD BE WARNINGS THAT OBTAIN FROM THE MANUFACTURER 22 OF THE PRODUCTS THAT ARE THEN PASSED ALONG. 23 AND THE EVIDENCE THAT WE HAD IN THE EARLY 1960'S 24 DOCUMENT, IT TURNED OUT THAT THE SOURCE WAS CLEARLY INDICATED 25 ON THE DOCUMENT, THAT INDICATED THAT IT WAS FROM THE 26 PARTICULAR CHEMICAL COMPANY THAT THEY HAD OBTAINED THE 27 INFORMATION USED TO FILL OUT THIS INTERNAL WARNING FORM THAT 28 THEY USED. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (106 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4204 1 SO THE EVIDENCE IS, IS THAT THE SOURCE OF 2 INFORMATION THAT WAS BEING RELIED UPON BY FIRESTONE WAS THE 3 CHEMICAL COMPANIES, WHICH MAKES PERFECT SENSE. THE CHEMICAL 4 COMPANIES ARE THE EXPERTS ON THE HAZARDS OF THEIR PRODUCTS. 5 THEY ARE THE ULTIMATE WORD IN TERMS OF WHAT THE HAZARDS ARE. 6 IT IS REASONABLE FOR FIRESTONE TO RELY UPON THESE CHEMICAL 7 COMPANIES IN TERMS OF WHAT THE HAZARDS ARE. 8 THERE WAS THE ONE DOCUMENT THAT WAS FROM 1971 9 THAT TALKED ABOUT BENZENE AS A PARTICULAR CHEMICAL STANDALONE 10 BY ITSELF. THE PROBLEM WITH THAT DOCUMENT IS FOR ALL INTENTS 11 AND PURPOSES THAT DOCUMENT WAS BURIED SOMEWHERE IN A MANUAL 12 THAT IS APPROXIMATELY SIX-INCHES THICK, IF IN FACT IT WAS 13 REALLY AVAILABLE THERE. 14 SECONDLY, IT IDENTIFIED A PRODUCT THAT ALL THE 15 WITNESSES TESTIFIED ABOUT WAS NEVER ACTUALLY USED IN IT BY 16 ITSELF. THERE WAS NO USE OF BENZENE BY ITSELF AT THE COMPANY. 17 AND THEREFORE BECAUSE THEY WEREN'T GETTING DRUMS OF BENZENE, 18 THEY WEREN'T, YOU KNOW, USING BENZENE AS ONE -- AS THE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (107 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 SOLVENT, FOR INSTANCE, IN MAKING TIRES OR ANY OTHER PRODUCT, 20 BENZENE AS A STANDALONE PRODUCT WASN'T THE PRODUCT AT ISSUE. 21 THE PRODUCT AT ISSUE WAS THE SOLVENTS THAT THEY 22 WERE BUYING. AND IT'S NOT EVEN CLEAR THAT FIRESTONE KNEW 23 UNTIL THE 1970'S THAT BENZENE WAS EVEN IN THOSE PRODUCTS. AND 24 IN THE 70'S EVIDENTLY WHEN THEY FOUND THAT BENZENE WAS IN THE 25 PRODUCTS, THEN THEY REQUESTED THAT THE LEVEL OF BENZENE BE 26 REDUCED, WHICH WAS THEN COMPLIED WITH EVIDENTLY. 27 BUT THERE WAS NO EVIDENCE THAT THEY WERE AWARE 28 THAT THE PRESENCE OF SOME PERCENTAGE OF BENZENE IN THE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (108 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4205 1 SOLVENTS THEY WERE PURCHASING REPRESENTED A HAZARD TO THEIR 2 USERS IN TERMS OF A CANCER RISK. THAT INFORMATIONAL PIECE IS 3 THERE'S NOWHERE IS THERE ANY EVIDENCE THAT DIRECTLY 4 DEMONSTRATES THAT FIRESTONE HAD THAT KNOWLEDGE, NONE AT ALL. 5 IT'S NOT IN ANY OF THE DOCUMENTS, AND THERE WAS NO WITNESS 6 THAT TESTIFIED TO THAT. 7 SO WE'RE LEFT WITH, WELL, COULD THEY HAVE HAD 8 IT? OR WHAT COULD HAVE BEEN THE SOURCES OF THIS INFORMATION? 9 WELL, ANY TIME WE'RE LEFT WITH SPECULATING ABOUT 10 WHAT THEY COULD HAVE HAD, THAT SORT OF THING, WE'VE GOT A 11 TRIABLE ISSUE OF FACT. AND I THINK IT MAKES YOUR JOB EASY. 12 YOU HAVE TO DENY THE MOTION FOR A DIRECTED VERDICT ON THIS, 13 BECAUSE WE'VE GOT -14 I MEAN, THE JURY COULD WELL CONCLUDE UNDER THE 15 FACTS OF THIS CASE THAT FIRESTONE ACTUALLY DID NOT KNOW THAT 16 THIS WAS A HAZARD BECAUSE THERE IS NO DOCUMENT THAT MADE IT 17 CLEAR THAT IT WAS A HAZARD. 18 THERE WAS A DOCUMENT THAT WE SHOWED THAT SHELL file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (109 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 EVIDENTLY DISTRIBUTED IN '79, BUT THERE WAS NO -- THAT WOULD 20 HAVE PUT THEM ON NOTICE. I CONCEDE THAT. THAT WAS THAT 21 WARNING DOCUMENT THAT TALKED ABOUT SHELL SOL-B AND THE FACT 22 THAT IT CONTAINED BENZENE, WHICH WAS KNOWN TO CAUSE CANCER. 23 BUT THERE IS NO EVIDENCE THAT THAT DOCUMENT 24 ITSELF EVER GOT TO FIRESTONE BECAUSE SHELL WASN'T SELLING AT 25 THAT TIME. THEY'D STOPPED SELLING SEVERAL YEARS EARLIER. 26 BUT THAT'S THE KIND OF DOCUMENT THAT YOU NEED TO 27 FIND IN THE FIRESTONE FILES. THAT'S THE KIND OF DOCUMENT THAT 28 WOULD SHOW THAT FIRESTONE ACTUALLY HAD THIS KNOWLEDGE. BUT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (110 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4206 1 LACKING THAT, WE'RE LEFT WITH SPECULATION. WE'RE LEFT WITH 2 ASSUMPTIONS. WE'RE LEFT WITH, YOU KNOW, WITNESSES WHO THINK, 3 WELL, BECAUSE THEY WERE SOPHISTICATED, THEY SHOULD HAVE OR 4 COULD HAVE FOUND OUT THIS INFORMATION. 5 WELL, IF WE'RE LEFT WITH THOSE KINDS OF THINGS, 6 THOSE ARE INFERENCES, AND DIFFERENT INFERENCES COULD BE DRAWN 7 FROM THAT AND THEREFORE IT'S A TRIABLE ISSUE, AND THEREFORE I 8 THINK IT'S AN EASY CALL. YOU HAVE TO DENY THE MOTION FOR A 9 DIRECTED VERDICT ON THIS. 10 ANOTHER POINT ABOUT THIS -- AND MAYBE I SHOULD 11 JUST MOVE ON BECAUSE IT'S REALLY MORE IN THE RISK VERSUS 12 BENEFIT POINT. OR, NO, IT'S IN ONE OF THE OTHER ONES. BUT 13 LET ME MOVE ON TO NUMBER THREE, THE DIRECTED VERDICT REGARDING 14 RISK VERSUS BENEFITS. 15 AND HERE, AS I ALLUDED TO EARLIER, OUR POSITION 16 IS, IS THAT WHILE SOLVENTS WERE INDEED NECESSARY TO MAKE 17 TIRES, SOLVENTS WERE NOT A FIXED FORMULATION. THEY WERE A 18 VARIABLE FORMULATION. THERE WERE DIFFERENT FORMULAS THAT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (111 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 COULD BE USED TO MAKE THE TIRES. 20 WHY DO WE KNOW THAT? WELL, BECAUSE WE HAD 21 WITNESSES THAT SAID THAT, AND BECAUSE WE KNOW THAT THERE WERE 22 REQUESTS TO REDUCE BENZENE CONTENT, IN OTHER WORDS, CHANGE THE 23 FORMULA IN THE 1970'S, AND THAT THOSE REQUESTS WERE COMPLIED 24 WITH. I BELIEVE THE EXPLANATION WAS THAT WE PROVIDED A 25 SEVERAL -- A COUPLE OF DIFFERENT FORMULATIONS. THEY DID TESTS 26 ON THOSE, AND THEY TOLD US WHICH ONES THEY LIKED THE BEST. 27 SO IF THEY CAN FORMULATE IT DIFFERENTLY, THEN I 28 THINK THAT THE BURDEN UNDER THE RISK VERSUS BENEFITS THEORY file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (112 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4207 1 SHIFTS TO THEM TO SHOW THAT THE FORMULATION THAT THEY CHOSE IS 2 THE BEST ONE UNDER THE RISK VERSUS BENEFITS. NOT THE BEST ONE 3 FOR MAKING TIRES. PRESUMABLY IT WORKED OKAY FOR MAKING TIRES, 4 BUT THE BEST ONE IN VIEW OF THE FACT THAT THIS HAS GOT 5 CANCER-CAUSING ELEMENTS IN IT. 6 AND WHAT WAS THE RISK VERSUS BENEFITS OF, SAY, 7 LOWERING THE BENZENE CONTENT EVEN FURTHER OR PERHAPS EVEN 8 ELIMINATING IT ENTIRELY? WAS THERE ANY EVIDENCE THAT THEY 9 COULDN'T HAVE DONE THAT? WELL, THAT WAS THEIR JOB TO PUT IN 10 THAT EVIDENCE 11 WAS THERE ANY EVIDENCE THAT THERE WERE OTHER 12 PRODUCTS IN THERE THAT THEY ALSO COULD HAVE ADJUSTED THAT 13 WOULD HAVE DONE THE JOB JUST AS WELL, BUT REDUCE THE HAZARDOUS 14 NATURE OF THIS? 15 IN TERMS OF THE FORMULATION OF THE SOLVENTS, 16 THAT'S THEIR JOB TO PROVE THAT IT COULDN'T BE DONE A DIFFERENT 17 WAY OR THAT THE TRADEOFFS WERE REASONABLE TRADEOFFS. AND I 18 DON'T THINK THEY'VE DONE THAT, FRANKLY. I THINK, YOU KNOW, file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (113 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THEY'VE JUST RELIED ON THE ASSUMPTION THAT THERE WAS ONLY ONE 20 FORMULATION OF THESE SOLVENTS AND THAT'S IT. AND THEY STOPPED 21 THERE. 22 SO THEY'VE UTTERLY FAILED WITH RESPECT TO THEIR 23 BURDEN OF PROOF ON THIS ISSUE, AND I THINK, YOU KNOW, THIS 24 SHOULD BE A SLAM DUNK FOR US, BUT NOT SO MUCH THAT I'M GOING 25 TO ASK FOR A DIRECTED VERDICT ON IT. 26 BUT I THINK THAT IN TERMS OF A MOTION FOR A 27 DIRECTED VERDICT, THEY HAVE NOT CARRIED THEIR BURDEN OF 28 PROVING THAT THERE WAS NO ALTERNATE FORMULATION OF THESE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (114 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4208 1 PRODUCTS. THAT THERE WAS NO BETTER TRADEOFF. THAT THERE WAS 2 NO QUESTION THAT THEY HAD TO PROVIDE THE PRODUCT IN THIS FORM 3 THAT THEY PROVIDED IT IN. 4 IN FACT, THE EVIDENCE IS ABSOLUTELY TO THE 5 CONTRARY, AND THEREFORE I THINK YOU NEED TO DENY THAT MOTION. 6 THAT MOTION ALSO DEALT WITH THE QUESTION OF WHAT 7 THE RISK WAS. AND HERE WE GET INTO ONE OF THE CONFUSING 8 ASPECTS OF THIS CASE. IN THAT THE CANCER THAT MR. MOLINA HAS 9 IS ONE THAT I WILL CONCEDE WAS NOT KNOWN ABOUT IN TERMS OF 10 WHAT WAS PUBLISHED IN THE MEDICAL LITERATURE AS OF THE TIME 11 THAT HE WAS EXPOSED. 12 OUR POSITION IS, IS THAT THERE WAS ANOTHER 13 CANCER, A.M.L., THAT WAS KNOWN ABOUT, THAT WAS ASSOCIATED WITH 14 THESE PRODUCTS, AND THEREFORE THEY SHOULD HAVE BEEN WARNING 15 ABOUT A CANCER RISK. 16 AND THAT HAD THEY WARNED ABOUT A CANCER RISK, 17 THAT THE WARNING WOULD HAVE BEEN HEEDED, THAT THERE WOULD HAVE 18 BEING STEPS TAKEN TO REDUCE OR ELIMINATE EXPOSURES. THEY file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (115 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 WOULD HAVE MADE THEM WEAR GLOVES, LIKE IT SAID TO DO ON THAT 20 SHELL WARNING DOCUMENT. THEY WOULD HAVE WARNED THEM ABOUT -21 THEY WOULD HAVE -22 YOU KNOW, THERE'S LOTS OF THINGS THAT COULD HAVE 23 BEEN DONE TO REDUCE EXPOSURES HAD THEY KNOWN ABOUT THE HAZARD. 24 AND I THINK THE INFERENCE CAN BE DRAWN THAT HAD 25 THERE BEEN A WARNING ABOUT THE HAZARDS, THAT IT WOULD HAVE 26 BEEN HEEDED, AND THAT THINGS WOULD HAVE BEEN DONE TO REDUCE OR 27 ELIMINATE THE EXPOSURES SUCH THAT NO CANCER WOULD HAVE 28 RESULTED FROM THIS. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (116 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4209 1 SO IT'S OUR POSITION THAT THE -- WE NEED NOT 2 PROVE THAT AS OF THE TIME THAT THIS PRODUCT WAS BEING SOLD 3 THAT THERE WAS KNOW -- IT WAS KNOWN OR KNOWABLE THAT THE RISK 4 OF THE PARTICULAR CANCER THAT MR. MOLINA DEVELOPED, THE 5 FOLLICULAR LYMPHOMA, THAT THAT PARTICULAR CANCER WAS KNOWN AT 6 THAT TIME. THAT'S NOT AN ELEMENT. I DON'T SEE THAT AS AN 7 ELEMENT OF WHAT OUR PROOF REQUIRES IN THIS. 8 FINALLY, THE LAST ASPECT OF THIS ISSUE IS 9 WHETHER OR NOT IT WAS KNOWABLE IS DIFFERENT THAN WHETHER OR 10 NOT IT WAS KNOWN. AND KNOWABILITY IN SCIENCE OFTEN HAS TO DO 11 WITH WHETHER OR NOT SOMEBODY IS DOING THE STUDIES. 12 IN OTHER WORDS, IF WE KNOW TODAY THAT A CERTAIN 13 PRODUCT CAUSES CANCER, BECAUSE A STUDY WAS DONE LAST YEAR THAT 14 SHOWS THAT THAT PRODUCT CAUSED CANCER, COULD WE HAVE DONE THAT 15 STUDY 40 YEARS AGO AND FOUND OUT THE SAME THING? OTHER THAN 16 THE WILL TO DO IT, OTHER THAN THE FUNDING FOR THE STUDY, WAS 17 THERE ANY TECHNICAL BARRIER TO BEING ABLE TO DO THE STUDY? 18 AND HERE, YOU KNOW, I MEAN, SCIENCE MOVES ALONG file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (117 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 AT ITS OWN PACE DEPENDING ON WHAT FUNDING AND WHO HAS INTEREST 20 AND ALL THAT SORT OF THING, BUT IT'S NOT AS IF THERE ARE 21 THINGS THAT JUST CANNOT BE KNOWN. OFTENTIMES IT'S A QUESTION, 22 OF, WELL, IS ANYBODY TRYING TO FIND OUT? 23 AND THE MANUFACTURER IS IN A POSITION TO FUND A 24 LOT OF STUDIES. IN FACT, THERE WAS EVIDENCE THAT THEY DID 25 FUND STUDIES. THEY FUND STUDIES. THEY CAN DO ANIMAL 26 EXPERIMENTATIONS. THEY CAN VARIOUS THINGS TO UNCOVER THE 27 RISKS AND HAZARDS IN THEIR PRODUCTS. 28 MANY DECIDE, AS A MATTER OF PRACTICALITY, NOT TO file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (118 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4210 1 DO THOSE STUDIES. THEY DECIDE TO SIT BACK AND WAIT FOR OTHERS 2 TO DO THEM, AND THEN WHEN THOSE STUDIES ARE DONE AND THE PILE 3 OF STUDIES IS SO HIGH, THEN THEY ADMIT, THAT, OH, YES, THERE 4 IS A PROBLEM. 5 WELL, I SUBMIT THAT UNDER STRICT LIABILITY LAWS 6 THAT THEY BEAR THE RISK OF THAT CONDUCT. THEY BEAR THE RISK 7 OF IF THEY'RE GOING TO SIT BACK AND WAIT FOR SOMEBODY ELSE TO 8 DO THE STUDY RATHER THAN BEING PROACTIVE AND UNCOVERING THE 9 HAZARD THEMSELVES, THAT IF THE HAZARD DEVELOPS, THEY DON'T GET 10 TO SAY, "A-HAH, BUT NO ONE KNEW AT THE TIME." 11 THE ONLY EXCEPTION TO THAT MAY BE IF THEY CAN 12 PROVE THAT IT WAS IMPOSSIBLE TO HAVE FOUND OUT BECAUSE OF 13 SOME, YOU KNOW, LIMITATION IN TERMS OF, YOU KNOW, SOMEBODY 14 HADN'T INVENTED AN EPIDEMIOLOGY TECHNIQUE OR SOMETHING. 15 SOMEBODY DIDN'T KNOW HOW TO LOOK IN THE MICROSCOPE AND 16 DETERMINE WHAT THESE CANCERS WERE. OR SOMEBODY DIDN'T KNOW 17 HOW TO COUNT UP THE NUMBER OF PEOPLE THAT HAD DIED FROM THESE 18 CANCERS. YOU KNOW, SOMETHING ALONG THOSE LINES THAT WOULD file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (119 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 HAVE PREVENTED THE POSSIBILITIES. 20 SO MY POSITION IS, IS ESSENTIALLY THEY CAN'T 21 HAVE THEIR CAKE AND EAT IT, TOO, IN TERMS OF NOT FUNDING A 22 STUDY AND THEN SITTING BACK AND SAYING, "WELL, BECAUSE THERE 23 WAS NO STUDY, YOU CAN'T HOLD US RESPONSIBLE FOR WHAT THAT 24 STUDY WOULD HAVE REVEALED." WE CAN AND WE DO HOLD THEM 25 RESPONSIBLE. 26 THEY, YOU KNOW, IT'S OFTEN SAID THAT UNDER 27 PRODUCTS LIABILITY LAW, MANUFACTURERS ARE NOT INSURERS OF 28 THEIR PRODUCTS. AND WHILE THAT'S TRUE IN THE STRICT SENSE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (120 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4211 1 THAT IN TERMS OF THEY'RE NOT LIKE FULL COMPLETE INSURERS OF 2 EVERY ASPECT OF IT. THE FACT IS, IS THAT PRODUCTS LIABILITY, 3 STRICT LIABILITY LAW DOES RESEMBLE INSURANCE IN A CERTAIN WAY. 4 IT MAKES THEM RESPONSIBLE REGARDLESS OF THEIR 5 KNOWLEDGE ABOUT HAZARDS. IT MAKES THEM RESPONSIBLE REGARDLESS 6 OF THEIR GOOD FAITH OF THEIR ACTIONS. IT MAKES THEM 7 RESPONSIBLE, EVEN IF IT WASN'T NECESSARILY KNOWN THAT THAT 8 PARTICULAR GRIEF MIGHT HAPPEN AS A RESULT OF THEIR PRODUCT 9 BECAUSE THEY'RE IN THE BEST POSITION FROM A SOCIAL POLICY 10 STANDPOINT TO BE ABLE TO SPREAD THAT RISK IN AN INSURANCE-LIKE 11 MANNER, RATHER THAN HAVING THE INNOCENT PERSON WHO HAD BEEN 12 INJURED BY THE PRODUCT BEAR ALL OF THAT RISK. 13 THE BURDEN OF THAT RISK IS ASSIGNED TO THE 14 MANUFACTURER WHO'S IN THE BEST POSITION TO DISTRIBUTE IT TO 15 THE COST OF THEIR PRODUCTS, AND TO DO SOMETHING ABOUT THAT 16 RISK IN TERMS OF RESEARCH IN TERMS OF THEM COVERING THOSE 17 RISKS AND IN TERMS OF DOING SOMETHING ABOUT IT IN TERMS OF 18 WARNING OR CHANGING THE FORMULATIONS OF THEIR PRODUCTS. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (121 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 BOTTOM LINE IS, YOU SHOULD DENY THE MOTION FOR A 20 DIRECTED VERDICT WITH RESPECT TO THE RISK VERSUS BENEFITS 21 THEORY. 22 NOW, THERE WAS ANOTHER MOTION FOR A DIRECTED 23 VERDICT. THIS IS NUMBER FOUR, ON THE GROUNDS OF INADEQUATE 24 IDENTIFICATION OF THE CHEMICALS. 25 NOW, THIS IS AN INTERESTING ONE. HERE, WHAT OUR 26 EVIDENCE WAS WAS THAT THE DEFENDANTS SOLD MIXED SOLVENT 27 PRODUCTS. THEY HAD NAMES, LIKE CHEVRON THINNER 200. BUT 28 THESE PRODUCTS WERE THEMSELVES MIXTURES OF DIFFERENT COMPONENT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (122 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4212 1 CHEMICALS. THEY INCLUDED BENZENE. THEY INCLUDED TOLUENE. 2 THEY INCLUDED XYLENE AND A WHOLE BUNCH OF OTHER THINGS. 3 NOW WHAT THEY'RE SAYING -- AND WE HAVE PUT OUR 4 CASE ON BASED UPON PROOF THAT IT IS THAT MIXTURE OF PRODUCT 5 THAT THEY SOLD, THAT'S THE INJURY-CAUSING PRODUCT. THAT'S THE 6 ONE THAT THE PLAINTIFF WAS EXPOSED TO, AND THE EVIDENCE WAS 7 THAT EXPOSURE TO THAT MIXTURE PRODUCT WAS WHAT CAUSED THE 8 INJURY. 9 MR. RIFF'S MOTION IS SAYING IN EFFECT, EVEN 10 THOUGH THEY SOLD A MIXTURE, IT'S OUR JOB TO SAY, WELL, WHICH 11 SPECIFIC COMPONENT OF THAT MIXTURE WAS ACTUALLY THE CAUSE OF 12 THE INJURY? THIS IS DIRECTLY EQUIVALENT TO THE CIGARETTE 13 CAUSING LUNG CANCER SITUATION, WHICH SEVERAL EXPERTS TALKED 14 ABOUT ON THE WITNESS STAND. THAT CIGARETTES CONSTITUTE -15 CIGARETTE SMOKE CONSTITUTES A MIXTURE OF A LARGE NUMBER OF 16 CHEMICALS, AND WHAT THE EPIDEMIOLOGY SHOWS IS THAT EXPOSURE TO 17 CIGARETTE SMOKE OR EXPOSURE TO THAT MIXTURE OF ALL OF THOSE 18 CHEMICALS, CAUSES PEOPLE TO GET LUNG CANCER. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (123 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 WE DON'T KNOW THE PRECISE ROLE OF EACH OF THE 20 INDIVIDUAL CHEMICALS, AND WHETHER IT'S AN INTERACTIVE EFFECT 21 AMONG THEM, OR THAT IT'S A ONE, TWO PUNCH FROM A COMBINATION 22 OF CHEMICALS OR ONE PARTICULAR CHEMICAL. YOU KNOW, WE DON'T 23 KNOW THESE DETAILS. 24 WHAT WE DO KNOW IS FROM AN EPIDEMIOLOGICAL 25 STANDPOINT IS YOU SMOKE. YOU GET EXPOSED TO THIS MIXTURE. IT 26 CAUSES LUNG CANCER. 27 WELL, WE'RE DOING THE EXACT SAME THING HERE. 28 WE'VE GOT A MIXTURE OF CHEMICALS. WE'VE GOT EXPOSURE TO THAT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (124 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4213 1 MIXTURE OF CHEMICALS OF CHEMICALS, AND IT'S THAT MIXTURE OF 2 CHEMICALS THAT CAUSES THE CANCER. 3 SO DO WE HAVE TO DO WHAT YOU CAN'T DO ABOUT 4 CIGARETTES? DO WE HAVE TO PICK OUT THE INDIVIDUAL CHEMICALS 5 AND SHOW THE PRECISE MECHANISM? SPEND MILLIONS OF DOLLARS ON 6 TOXICOLOGY STUDIES TO FIGURE EXACTLY HOW -- WHICH PART OF 7 THEIR PRODUCT ACTUALLY CAUSED THIS CANCER? 8 NO. IT'S ENOUGH UNDER PRODUCT LIABILITY LAW TO 9 LOOK AT THEIR PRODUCT AS THEY SOLD IT, AND THAT'S WHAT WE'VE 10 DONE. THAT'S WHAT OUR EVIDENCE HAS BEEN. THAT THEY SOLD THIS 11 MIXTURE OF CHEMICALS, AND THE MIXTURE OF CHEMICALS IS WHAT 12 CAUSED THE CANCER. THAT WAS THE TESTIMONY. THAT WAS THE 13 EVIDENCE FROM MULTIPLE EXPERTS, AND, AS A RESULT, I THINK YOU 14 HAVE TO DENY THE MOTION FOR A DIRECTED VERDICT WITH RESPECT TO 15 THIS POINT. 16 FINALLY, WE HAVE PUNITIVE DAMAGES. AND OUR 17 THEORY OF PUNITIVE DAMAGES -18 FIRST OF ALL, JUST TO BE CLEAR, I BELIEVE WE ARE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (125 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 ENTITLED TO PUNITIVE DAMAGES AS TO ALL THREE OF THESE 20 DEFENDANTS, AND OUR POSITION IS THIS: THAT THE ELEMENT WHICH 21 NEEDS TO BE THERE IN ORDER TO SATISFY THE STATUTORY 22 REQUIREMENTS FOR PUNITIVE DAMAGES IS THE ELEMENT OF MALICE. 23 MALICE IS FOUND UNDER THE LAW IF THERE IS A 24 CONSCIOUS DISREGARD OF SAFETY, WITH A REQUISITE SORT OF MOTIVE 25 TO PROCEED ON DESPITE THE CLEAR NATURE OF THE HAZARD. 26 AND WHERE I THINK YOU FIND THIS ELEMENT IN TERMS 27 OF THE ACTIONS OF THESE DEFENDANTS, IS THEY'RE WAITING UNTIL 28 THE INFANTE STUDY WAS PUBLISHED BEFORE BEGINNING TO WARN ABOUT file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (126 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4214 1 A CANCER RISK WITH RESPECT TO BENZENE. THAT'S THE SPECIFIC 2 CONDUCT. 3 AND WHY? IT'S BECAUSE WHAT THEY HAVE CHOSEN TO 4 DO -- AND I THINK SOME OF THE CORPORATE WITNESSES MADE IT REAL 5 CLEAR THAT THIS WAS APPROACH AS A CORPORATION -- WAS TO STAND 6 BACK. LET OTHERS DO THE SCIENTIFIC INQUIRIES AND WAIT UNTIL 7 THOSE -- UNTIL EFFECTIVELY THE BODIES HAD PILED UP HIGH ENOUGH 8 THAT THEY COULD BE COUNTED SO WELL THAT THERE WAS NO LONGER -9 IT WAS NO LONGER POSSIBLE TO DENY IT. 10 THE FINAL BODY COUNT CAME THROUGH THE INFANTE 11 STUDY. THAT'S WHERE IT FINALLY HAPPENED. WERE THERE REPORTS 12 OUT THERE BEFORE THEN? YES, GOING BACK TO 1928 IN TERMS OF 13 THE CANCER. 14 THERE WERE CASE REPORTS, MULTIPLE CASE REPORTS, 15 CASE SERIES. THERE WERE STUDIES THAT WERE PUBLISHED IN THE 16 MEDICAL LITERATURE. THERE WERE WARNINGS. THERE WAS 17 DISCUSSION. THERE WAS LOTS OF TALK ABOUT THIS BEING CANCER 18 CAUSING. THAT THE BENZENE CONTENT OF A PRODUCT WAS SOMETHING file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (127 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THAT WAS HAZARDOUS. IT WAS HAZARDOUS BECAUSE IT ATTACKED THE 20 BLOOD-FORMING ORGANS, SOMETHING THEY KNEW SINCE 1897. 21 THEY KNEW THAT THIS CAUSED SERIOUS DISEASES OF 22 THE BLOOD-FORMING ORGANS, BUT IT WAS IN THE LATE 1920'S, FROM 23 THEN ON IT WAS CLEAR THAT NOT ONLY WAS THERE A PROBLEM IN 24 TERMS OF ACUTE TOXIC EFFECTS THAT WERE VERY SERIOUS AND LIFE 25 THREATENING, BUT THAT WERE ALSO CHRONIC TOXIC EFFECTS IN TERMS 26 OF CANCER. THE PARTICULAR CANCER WAS LEUKEMIA, AND THAT 27 LEUKEMIA RISK WAS SOMETHING THAT WAS OUT THERE AND WAS KNOWN. 28 THE CORPORATE RESPONSE WAS TO SIT BACK AND DENY file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (128 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4215 1 IT. TO SIT BACK AND SAY, "WELL, IT HASN'T BEEN PROVEN. 2 HASN'T BEEN PROVEN." AND THEY KEEP SAYING THAT UNTIL THE 3 INFANTE STUDY FINALLY MADE IT SO DIFFICULT FOR THEM TO 4 MAINTAIN THAT POSITION THAT THEY HAD TO ROLL OVER AND ADMIT, 5 "WELL, MAYBE, OKAY, WE'VE GOT A PROBLEM HERE." 6 THAT'S THE CONDUCT RIGHT THERE. THAT IS THE 7 HEART OF THIS CASE IN TERMS OF WHAT THE EVIDENCE HAS SHOWN 8 REGARDING WHAT WAS KNOWN ABOUT STATE OF THE ART AND WHERE THE 9 CONDUCT OF MALICE COMES FROM. 10 THE EVIDENCE WAS THAT THIS WAITING UNTIL A 11 DEFINITIVE STUDY WAS PUBLISHED, NAMELY, THE INFANTE STUDY, WAS 12 THE POLICY OF THE DEFENSE -- OF THE DEFENSE. THAT THEY WAITED 13 UNTIL THAT POINT TO PROVIDE ANY KIND OF INFORMATION ABOUT THIS 14 CANCER HAZARD IN THEIR WARNING DOCUMENTS. 15 THERE WAS EVIDENCE TO THE CONTRARY FROM OUR 16 WARNINGS EXPERTS, DR. VREDENBURGH, WHO SAID THAT IT WAS HER 17 VIEW THAT ANY TIME THERE WAS PUBLICATION IN A PEER-REVIEWED -18 IN THE PEER-REVIEWED LITERATURE OF A CANCER HAZARD, THAT THEY file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (129 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 SHOULD START WARNING. THAT THAT'S THE TRIGGER RIGHT THERE. 20 AND WE CERTAINLY MET THAT IN TERMS OF THIS CASE. 21 NOW, HAVE WE PROVEN OUR CASE IN TERMS OF MALICE 22 THERE? I DON'T KNOW. IT DEPENDS ON, YOU KNOW, HOW ONE VIEWS 23 THAT. I MEAN, THERE'S AN OLD SAYING THAT A DOG KNOWS THE 24 DIFFERENCE BETWEEN BEING KICKED AND BEING STUMBLED OVER. THIS 25 IS AN ASSESSMENT THAT NEEDS TO BE MADE OF THIS CORPORATE 26 CONDUCT IN TERMS OF WHETHER OR NOT THIS REQUISITE STATE OF 27 MIND OF MALICE WAS REALLY THERE. 28 DID CHEVRON AND SHELL AND UNOCAL -- DID THEY file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (130 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4216 1 SIMPLY STUMBLE ON THIS ISSUE? WAS THIS A SIMPLE -- WAS THIS A 2 MISTAKE ON THEIR PART? OR WAS IT A KICK ON THEIR PART IN 3 TERMS OF SAYING AND HAVING AN ATTITUDE OF, "WELL, WE DON'T 4 CARE. WE'RE GOING TO DENY THIS UNTIL IT'S ABSOLUTELY SO CLEAR 5 THAT WE CAN'T DENY IT ANYMORE, AND AT THAT POINT WE'LL CHANGE 6 OUR POSITION." 7 I SUBMIT THAT'S A JURY QUESTION. AND THAT 8 THEREFORE YOU HAVE TO DENY THE MOTION FOR A DIRECTED VERDICT 9 ON THIS WITH RESPECT TO PUNITIVES AS TO ALL THREE OF THESE 10 DEFENDANTS. I THINK THAT THERE'S FACTS THERE FROM WHICH I CAN 11 MAKE THE ARGUMENT THAT FROM WHICH JURORS COULD REASONABLY 12 CONCLUDE THAT THESE DEFENDANTS ACTED WITH THAT REQUISITE 13 MALICE. AND AS LONG AS I CAN BE MAKING THOSE KINDS OF 14 ARGUMENTS, THEN YOU MUST IN YOUR ROLE AS THE JUDGE IN THIS 15 INSTANCE DENY THE MOTION FOR A DIRECTED VERDICT. 16 UNLESS THE COURT HAS QUESTIONS, I'VE COVERED ALL 17 OF THE MOTIONS I THINK THEY'VE MADE AND I'M DONE. 18 THE COURT: OKAY. CAN WE FINISH UP BEFORE LUNCH? file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (131 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 MR. WAGNON: OH, YEAH. 20 MR. RIFF: YOUR HONOR, I JUST HAVE A FEW COMMENTS. 21 FIRST OF ALL, THE LOCKHEED CASE IS FOUND AT 15 22 CAL.APP.4TH 558. AND ON THAT POINT, I THINK HERE IS THE KEY 23 -- OR AT LEAST A KEY -- BECAUSE EVERYTHING I SAID BEFORE I 24 THINK STILL APPLIES. 25 IN THIS CASE, IT'S EVEN MORE AGGRAVATED THAN IN 26 THE LOCKHEED CASE. WE CAN'T SAY THAT THERE IS ANY 27 INTERSECTION WHATSOEVER OF EVENTS -- THE VENN DIAGRAM -28 BETWEEN THE COLLECTION OF MIXED SOLVENTS THAT THESE EXPERTS file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (132 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4217 1 FOR THE PLAINTIFFS ARE RELYING ON AS INCREASING THE RISK OF 2 CAUSING NON-HODGKIN'S LYMPHOMA AND THE ACTUAL CHEMICALS IN 3 THIS CASE. 4 AND, IF THE COURT WISHES, I'D SUGGEST THE COURT 5 TAKE A LOOK AT WHAT DR. WEISENBURGER SAYS ON THAT POINT AT 6 PAGES 479 THROUGH 481 OF THE TRANSCRIPT OF THE TRIAL. MY NOTE 7 SAYS HE DOES NOT KNOW WITHOUT GUESSING OR SPECULATING THAT THE 8 SPECIFIC COMPONENTS OF THE PRODUCTS ARE WITHIN THE GROUP THAT 9 CAUSES N.H.L. SO THERE IS A NON-INTERSECTION OF THOSE VENN 10 DIAGRAMS. 11 ON THE FAILURE TO WARN -- I'M SORRY -- ON WHAT 12 WE'RE NOW CALLING THE "GENERAL NEGLIGENCE CAUSE OF ACTIONS," 13 TO MY EAR THE FIRST PRONG OF WHAT PLAINTIFFS ARE TALKING ABOUT 14 IS THE FAILURE TO WARN. I DON'T KNOW WHAT IS LEFT THAT ISN'T 15 WITHIN THE WORLD OF FAILURE TO WARN. 16 ON THE SECOND PRONG OF THEIR GENERAL NEGLIGENCE, 17 I WROTE DOWN FAILURE TO PROVIDE A LOWER BENZENE FORMULATION. 18 AND ON THIS POINT, YOUR HONOR, THERE IS A FAILURE OF PROOF ON file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (133 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 THE PLAINTIFFS THAT IT WOULD HAVE MADE A DIFFERENCE. THERE IS 20 NO EVIDENCE THAT IF THE DEFENDANTS HAD NOT BEEN NEGLIGENT IN 21 THAT PARTICULAR, THAT IT WOULD HAVE MADE ANY DIFFERENCE. 22 THERE IS NO MEDICAL CAUSATION TESTIMONY ON THAT POINT. 23 NOTHING THE JURY CAN INFER FROM WITHOUT THE RANKEST OF 24 SPECULATION. 25 SO EVEN IF COUNSEL IS CORRECT ON THAT POINT, I'D 26 SUGGEST THAT IT'S STILL A PROPER SUBJECT OF A DIRECTED 27 VERDICT. 28 TWO MORE THINGS AND THEN I WILL BE DONE. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (134 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4218 1 COUNSEL SAID THERE IS NO -- I'M SORRY. 2 REFERRING TO THE ISSUE OF FIRESTONE'S KNOWLEDGE 3 AND SOPHISTICATION, ONE OF COUNSEL'S POINTS THERE IS THAT 4 THERE IS NO EVIDENCE IN THE RECORD THAT FIRESTONE WOULD HAVE 5 KNOWN THAT THESE PRODUCTS EVEN CONTAINED BENZENE. 6 THAT'S ACTUALLY NOT TRUE. THE ONLY EVIDENCE ON 7 THE POINT CAME FROM WILLIAM ELLIS, THE CHEVRON CHEMIST WHO 8 SAID SPECIFICALLY THAT FIRESTONE'S CHEMISTS, KNOWING THE 9 DISTILLATION RANGE, THE INITIAL BOILING POINT AND THE DRY 10 POINT, THAT IF THAT PASSES THROUGH 176 DEGREES FAHRENHEIT, 11 THEY DEFINITELY WOULD HAVE KNOWN THERE WAS BENZENE IN THE 12 PRODUCT AND HOW MUCH OR HOW LITTLE DEPENDS ON THE WIDTH OF 13 THAT BOILING RANGE. IT ASSUMES WE HAVE A COUNTERPOINT. 14 BUT THE POINT IS THAT THEY DIDN'T; THAT 15 FIRESTONE WOULD HAVE KNOWN THAT THESE PRODUCTS CONTAINED 16 BENZENE IN SOME AMOUNT. 17 AND, LAST, ON THE PUNITIVE DAMAGES POINT, I, AT 18 LEAST, WAS NOT PERSUADED BY MR. WAGNON, BUT THAT'S NOT THE file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (135 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 TEST, I GUESS. I WOULD JUST POINT OUT THAT THERE IS JUST 20 PLAIN NO EVIDENCE WHATSOEVER WITH REGARD TO UNOCAL'S CONDUCT 21 IN THIS CASE, YOUR HONOR. 22 I THINK THE ONLY TIME UNOCAL'S NAME GOT 23 MENTIONED IN THIS CASE, OTHER THAN WITH RESPECT TO THIS 24 APPLIES TO THE CHEMICALS, WAS IN REFERENCE TO A STUDY DONE BY 25 UNOCAL IN 1992 BY ELIZABETH DEL SAL (PH.), AS I REMEMBER, 12 26 YEARS LATER; 12 YEARS AFTER THE LAST YEAR THAT MR. MOLINA 27 WORKED. SO I POINT THAT OUT FOR WHATEVER LEGAL SIGNIFICANCE 28 THAT HAS. THANK YOU. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (136 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4219 1 THE COURT: ALL RIGHT. HERE'S WHAT I'M GOING TO DO. 2 THE DEFENSE MOTIONS ON ALL POINTS ARE DENIED. HOWEVER, WITH 3 RESPECT TO THE NEGLIGENCE CLAIM, I THINK THAT THE NEGLIGENCE 4 THEORIES AND EVIDENCE THAT HAVE BEEN PUT FORWARD BY THE 5 PLAINTIFF ARE ADEQUATELY REFLECTED IN THE JURY INSTRUCTIONS ON 6 FAILURE TO WARN, WHETHER THAT BE STRICT LIABILITY OR 7 NEGLIGENCE, AND IN THE DESIGN DEFECT, EVEN THOUGH THAT'S 8 TAGGED AS STRICT LIABILITY, I THINK IT ADEQUATELY REFLECTS THE 9 LAW WITH RESPECT TO WHAT MUST BE SHOWN TO ESTABLISH LIABILITY 10 ON THE PART OF A MANUFACTURER FOR NEGLIGENT DESIGN OF A 11 PRODUCT. 12 SO, THE MOTION WAS, ESSENTIALLY, FOR A DIRECTED 13 VERDICT ON THE FIRST CAUSE OF ACTION. THAT'S DENIED, BUT I'M 14 NOT GOING TO GIVE ANY NEGLIGENCE INSTRUCTIONS BECAUSE I 15 THINK -- AS SUCH, BECAUSE I THINK THAT THOSE WOULD ONLY INVITE 16 THE JURY TO IGNORE THE SPECIFIC REQUIREMENTS FOR PROOF OF 17 NEGLIGENCE IN THE CONTEXT OF THE EVIDENCE AND ARGUMENTS THAT 18 ARE SUPPORTED BY THE EVIDENCE. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (137 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 SO THAT'S IT. 20 MR. RIFF: AND I THINK THIS GOES WITHOUT SAYING, BUT 21 MAY I SAY IT? YOUR RULINGS ARE, OF COURSE, WITHOUT PREJUDICE 22 TO ANY SUBSEQUENT MOTIONS AT A LATER PHASE OF THE PROCEEDINGS, 23 IF NECESSARY 24 THE COURT: THAT'S ALWAYS THE CASE. 25 MR. RIFF: I THINK SO, TOO. THANK YOU. 26 THE COURT: I GUESS WE NEED THE OTHER THINGS TO BE 27 DONE. 28 WELL, LET'S GO OFF THE RECORD. file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (138 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 4220 1 (A DISCUSSION WAS HAD OFF OF 2 THE RECORD.) 3 4 (AT 12:04 P.M. A RECESS WAS HAD 5 UNTIL 1:30 P.M. OF THE SAME DAY.) 6 7 8 9 10 11 12 13 14 15 16 17 18 file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (139 of 140) [10/18/2010 2:17:58 PM] file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt 19 20 21 22 23 24 25 26 27 28 file:///C|/Users/MadeK42/Desktop/whysner-upload/10-28-08%20AM%20part%20I.txt (140 of 140) [10/18/2010 2:17:58 PM]