Document p7nRxqjrYgM0k8LRLVwnYxBa

1 IN THE CIRCUIT COURT FOR BALTIMORE CITY 2 IN RE: PERSONAL INJURY * ASBESTOS LITIGATION * 3 *********** NAYMAN LAWSON, et al., * January 12, 2010 4 * Meso Trial Group Plaintiffs * Consolidated No. 5 v. * 24-X-08-000279 * 6 ACandS, INC., et al., * * 7 Defendants * *********** 8 CASE AFFECTED: * ROBERT REHRIG * 24-X-07-000532 9 LEWIS B. SHIFFLETT * 24-X-07-000313 *********** 10 11 DEPOSITION OF SHELDON H. RABINOVITZ, Ph.D., C.I.H. 12 The Deposition of Sheldon H. Rabinovitz, 13 Ph.D., C.I.H. was taken on Monday, December 7, 2009, 14 commencing at 2:00 p.m. at the Marriott Springhill 15 Suites, 9715 Washingtonian Boulevard, Gaithersburg, 16 Maryland and was reported by Denise M. Thomas, 17 Notary Public. 18 EVANS REPORTING SERVICE 19 Munsey Building 7 North Calvert Street 20 Suite 705 Baltimore, Maryland 21202 21 (410) 727-7100 1 1 APPEARANCES: 2 JONATHAN RUCKDESCHEL, ESQUIRE (via phone) Z. STEPHEN HORVAT, ESQUIRE (via phone) 3 The Ruckdeschel Law Firm, LLC On behalf of the Plaintiffs (Shifflett) 4 KEVIN E. OLIVER, ESQUIRE (via phone) 5 Waters & Kraus, LLP On behalf of the Plaintiffs (Rehrig) 6 TIMOTHY M. HURLEY, ESQUIRE (via phone) 7 Miles & Stockbridge, P.C. On behalf of the Defendant, CertainTeed, 8 Georgia-Pacific Corporation and Pep Boys 9 ROBERT S. KRAUSE, ESQUIRE (via phone) Dickinson Wright, PLLC 10 On behalf of the Defendant, Ford Motor Company 11 BENJAMIN D. WHETZEL, ESQUIRE (via phone) Segal, McCambridge, Singer & Mahoney 12 On behalf of the Defendant, Western Auto Supply Company (Rehrig) 13 GEORGE BOGRIS, ESQUIRE (via phone) 14 Whitney & Bogris, LLP On behalf of the Defendant, 84 Lumber Co. 15 (Rehrig) 16 HELYNA HAUSSLER, ESQUIRE (via phone) Hartel, Kane, DeSantis, MacDonald & Howie, LLP 17 On behalf of the Defendants, Square D Company (Rehrig) and Crane Co. and Federated 18 Development, LLC (Shifflett) 19 MICHAEL HASLUP, ESQUIRE (via phone) Miles & Stockbridge, P.C. 20 On behalf of the Defendant, Honeywell 21 2 1 APPEARANCES, (cont'd.) 2 KEITH ARNOLD, ESQUIRE (via phone) Whiteford, Taylor & Preston, LLP 3 On behalf of the Defendant, Cutler-Hammer 4 THOMAS HANNA, ESQUIRE (via phone) Kelley, Jasons, McGowan, Spinelli & Hanna 5 On behalf of the Defendant, MCIC (Rehrig) 6 JEREMY NORTH, ESQUIRE (via phone) North & Cobb 7 On behalf of the Defendant, ITT Industries (Rehrig) 8 JOHN RUFF, ESQUIRE (via phone) 9 DeHay & Elliston, LLP On behalf of the Defendants, Union Carbide 10 Corporation 11 VINCENT PALMIOTTO, ESQUIRE (via phone) Miles & Stockbridge, P.C. 12 On behalf of the Defendants, CertainTeed, Georgia-Pacific Corporation and Pep Boys 13 (Rehrig) 14 RICHARD L. FLAX, ESQUIRE (via phone) Law Offices of Richard L. Flax, LLC 15 On behalf of the Defendant, Walter E. Campbell Company 16 DANIELLE MARCUS, ESQUIRE (via phone) 17 P.A. Woolson, P.A. On behalf of the Defendant, John Crane (Rehrig) 18 CHRISTOPHER LYON, ESQUIRE (via phone) 19 Semmes, Bowen & Semmes On behalf of the Defendant, Noland Co. 20 21 3 1 APPEARANCES, (cont'd.) 2 DONALD MERINGER, ESQUIRE (via phone) Meringer, Zois & Quigg 3 On behalf of the Defendant, General Electric 4 PHILIP KULINSKI, ESQUIRE (via phone) Evert Weathersby Houff 5 On behalf of the Defendant, Viacom, Inc., Successor by merger to CBS Corporation, f/k/a 6 Westinghouse Electric Corporation 7 ROBERT M. GITTINS, ESQUIRE (via phone) Law Office of William J. Hickey 8 On behalf of the Defendants, Boiler & Furnace Cleaners, Inc., J.E. Hurley Machine and Boiler 9 Works, Inc. and Hurley Co. 10 MALCOLM BRISKER, ESQUIRE (via phone) Goodell, DeVries, Leech & Dann 11 On behalf of the Defendants, Hampshire Industries, Inc. and Rockwell Automation, 12 Inc. 13 14 15 16 17 18 19 20 21 4 1 PROCEEDINGS 2 ******* 3 Whereupon, 4 SHELDON H. RABINOVITZ, Ph.D., C.I.H. 5 A witness herein, called for oral 6 examination in the matter pending, being first duly 7 sworn to tell the truth, the whole truth and nothing 8 but the truth, testified as follows on 9 EXAMINATION 10 BY MR. RUCKDESCHEL: 11 Q Good afternoon, Dr. Rabinovitz. My 12 name is John Ruckdeschel. I am here on behalf of 13 the Shifflett family today. Can you please state 14 your name and your business address for the record? 15 A Sheldon H. Rabinovitz, 14712 Botany 16 Way, North Potomac, Maryland 20878. 17 Q Thank you, sir. 18 When is the last time you gave a 19 deposition? 20 A Let's see. It would have been I think 21 the 17th of November. 5 1 Q Approximately how many depositions did 2 you give in the month of November, sir? 3 A I don't know the exact number. 4 Q Can you give me an approximation of how 5 many depositions you have given in calendar year 6 2009? 7 A Probably about a little over 20. 8 Q Have you testified in trial in calendar 9 year 2009? 10 A Yes. 11 Q Approximately how many times? 12 A Two times. 13 Q Do you have a list of cases in which 14 you provided deposition and trial testimony, sir? 15 A Yes. 16 Q Okay. Could we mark that list as 17 Exhibit 1, please. 18 A Okay. 19 Q Thank you. 20 (Whereupon, Rabinovitz Deposition 21 Exhibit Number 1 was marked for identification.) 6 1 BY MR. RUCKDESCHEL: 2 Q How far back does that list go? 3 A This list goes back to 2002. 4 Q Is it complete and accurate, to the 5 best of your knowledge? 6 A Yes. 7 Q Great. 8 Have you seen the copy of the Notice of 9 Deposition in this case? 10 A Yes. 11 Q Do you have a copy of the notice? 12 A Yes. 13 Q Okay. Do you have the Shifflett 14 notice, the Rehrig notice, or both? 15 A I have both. 16 MR. RUCKDESCHEL: Okay. Let's mark 17 those collectively as Exhibit 2, please. 18 (Whereupon, Rabinovitz Deposition 19 Exhibit Number 2 was marked for identification.) 20 BY MR. RUCKDESCHEL: 21 Q Did you bring a CV with you? 7 1 A Yes. 2 Q Okay. We will mark that as Exhibit 3. 3 (Whereupon, Rabinovitz Deposition 4 Exhibit Number 3 was marked for identification.) 5 BY MR. RUCKDESCHEL: 6 Q Is it up to date? 7 A It is. 8 Q Have you published anything in the 9 peer-reviewed medical or scientific literature 10 concerning asbestos? 11 A No. 12 Q Have you published anything in the 13 peer-reviewed medical and scientific literature 14 regarding any topic? 15 A I have generated some documents while 16 with the EPA and NIOSH. I don't know if you would 17 consider it peer-reviewed literature. I mean, it is 18 peer reviewed and it is out there, but if you are 19 just talking about journal articles, then I don't 20 think I have done any peer-reviewed ones. 21 Q Okay. Let's talk for just a quick 8 1 second about some of the information in your last 2 answer. 3 Did you work for the Environmental 4 Protection Agency as an employee of the United 5 States Government? 6 A Yes. 7 Q Okay. When did that begin and end? 8 A I started in 1987. It ended full time 9 in 1989. And I continued to work for them part time 10 until 1992. And after that, I did some work for 11 them as a consultant. 12 Q Okay. When in 1987 did you begin? 13 When in the year? Was it the winter, the spring? 14 A I believe it was March. 15 Q And when in '89 did you stop working 16 full time? 17 A I think in February. January or 18 February. 19 Q And what was the reason that you went 20 from full to part time? 21 A Because I took a job with Sandler 9 1 Occupational Medicine Associates. 2 Q During your part-time work, were you an 3 employee of the United States Government or a 4 contractor? 5 A You know, I am not a hundred percent 6 sure. I think I might have been considered -- you 7 know, I am just not sure. 8 Q Fair enough. 9 And '87 to '89, you were actually an 10 employee of the EPA? 11 A Yes. 12 Q What about NIOSH? 13 A Yes, I was an employee with NIOSH. 14 Q During what time period? 15 A The end of 1983 until I went to the EPA 16 in 1987. 17 Q Now, you mentioned that there may have 18 been some papers that you worked on at the EPA and 19 NIOSH that had been reviewed by others, whether or 20 not they were published in a scientific journal. 21 Can you explain to me what you are talking about? 10 1 A Well, for example, I worked on several 2 NIOSH criteria documents which go through a 3 peer-review process. I also worked on a hazardous 4 waste guidance manual for how to protect workers at 5 hazardous waste sites. And that would go through a 6 review process. And I also was the chairman of a 7 committee that generated how you select and use 8 respirators in the workplace. 9 And while with EPA, I was responsible 10 for publishing a document on how to protect EPA 11 workers when they were doing asbestos inspections. 12 Those are the ones I can remember offhand that had a 13 specific review process. 14 Q And is performing a review process like 15 was done in those four documents that you have 16 mentioned offhand a relatively standard thing for 17 the EPA and NIOSH to do when they are putting 18 something out for the public or their employees to 19 rely upon? 20 A Yes. 21 Q And that happened with hazmat guidance 11 1 material, for example? 2 A Well, the document that I was the 3 chairman of the committee, it was an inter-agency 4 document on how to protect workers at hazardous 5 waste sites. 6 Q The EPA asbestos inspection document 7 you mentioned, the fourth publication or document 8 that you mentioned, that related to providing 9 guidance to Environmental Protection Agency 10 employees who would be out in the field in places 11 where there might be asbestos; is that correct? 12 A I think that's a fair characterization. 13 Q Would that include if they were 14 inspecting a garage? 15 A You know, my recollection, it was 16 dealing more with school inspections, so I don't 17 remember if it would be used in a garage. I just 18 don't remember. 19 Q Do you have a copy of it? 20 A I don't have it with me. I may have a 21 copy. I am not even sure if I have a copy of it 12 1 anymore. 2 Q Okay. Do you have any licenses in any 3 of the fields in which you have professional 4 credentials? 5 A I don't have I think what you would 6 call a license. 7 Q Okay. So you are an industrial 8 hygienist; is that correct? 9 A Yes. 10 Q But you don't get a license to practice 11 industrial hygiene; is that correct? 12 A I am not aware of a licensing 13 requirement. 14 Q Are you a certified industrial 15 hygienist? 16 A Yes. 17 Q When did you first receive your 18 certification? 19 A 1974. 20 Q Do you have to periodically renew your 21 certification? 13 1 A Yes. 2 Q How often? 3 A It used to be every six years. Now 4 it's every five years. 5 Q When is your next review? 6 A I believe in four years. 7 Q Has there ever been a time since you 8 were initially certified as an industrial hygienist 9 that that certification has lapsed? 10 A It never lapsed. I believe I was late 11 once in paying my dues, but I don't believe it ever 12 lapsed. 13 Q What was the consequence of being late 14 in paying your dues? 15 A I think I had to pay a late fee. 16 Q Fair enough. 17 Other than having to pay a late fee on 18 your dues, have you ever had any adverse action 19 taken with respect to your certification as an 20 industrial hygienist? 21 A I was once audited. It's not 14 1 necessarily an adverse action. It's that every so 2 often, hygienists get audited. 3 Q Can you give me a little more 4 information about how that came about and why? 5 A My understanding is that each year, 10 6 percent of all submissions of certification get 7 audited. 8 Q So as far as know, that was just a 9 routine spot check? 10 A That's my understanding. 11 Q It was not in response to a complaint 12 or some sort of allegation of misconduct or anything 13 like that? 14 A No. They do that to -- I mean, they 15 pick 10 percent of all hygienists. And it's 16 supposed to be random. 17 Q Okay. Number 3 to the exhibit to the 18 deposition notice requested that you produce at the 19 deposition copies of any publications, books, 20 articles, et cetera, authored by the deponent. Are 21 there such documents, and if so, have you brought 15 1 them with you? 2 A I have the list of documents that I 3 have authored or prepared, but I just have them 4 listed on my resume. I did not bring them. 5 Q All right. And to the extent that I 6 cannot locate any of the things on your resume, do 7 you have an objection to producing copies that are 8 in your possession? 9 A I do not have an objection to producing 10 anything that I have. 11 Q Okay. Now, what materials were you 12 provided in connection with the Shifflett case? 13 And, sir, let me strike that question and start 14 over. 15 Do you have a copy of your report in 16 the Shifflett case? 17 A Yes. 18 MR. RUCKDESCHEL: Let's mark that as 19 Number 4. And while we are doing that, mark the 20 Rehrig report as Number 5. 21 (Whereupon, Rabinovitz Deposition 16 1 Exhibit Numbers 4 and 5 were marked for 2 identification.) 3 THE WITNESS: Okay. 4 BY MR. RUCKDESCHEL: 5 Q Are the materials that you were 6 provided in the Shifflett case reflected in your 7 report? 8 A Yes. 9 Q Did you receive any materials in the 10 Shifflett case that are not reflected on the report? 11 A No, I don't think so. 12 Q And did you receive all of the 13 materials that are listed on the report? 14 A The medical records and reports were 15 provided in an E-mail address where I was given a 16 sign-in and a code to put in, which when I did, I 17 could see the information, which I looked at, but 18 that was all I did. 19 Q So you reviewed them online but did not 20 download them? 21 A That's correct. 17 1 Q All right. Did you review all of the 2 materials listed in your report in the Shifflett 3 case? 4 A I would say I went over them, yes. 5 Q Did you personally read Mr. Shifflett's 6 deposition? 7 A Yes. 8 Q Are there any employees that work with 9 you in your consulting work? 10 A There are. 11 Q That was a very good, concise answer. 12 How many and what do they do? 13 A That's kind of a moving target. I left 14 Sandler Occupational Medicine in June, but because I 15 had signed a non-compete, he required me to continue 16 working through SOMA up until the end of November 17 when we -- I believe we worked out an agreement 18 where I will be on my own and no longer using any 19 personnel at Sandler to assist me. 20 However, Ford was -- I had done some 21 work for Ford prior to starting work with Sandler, 18 1 and so I was able to work for Ford on my own as soon 2 as I left Sandler. 3 Q Ford was exempted from the non-compete 4 agreement because you had a preexisting relationship 5 with them? 6 A Correct. 7 Q I got it. 8 A And so Ford, I was just doing the work 9 myself. Now, I will not be using SOMA personnel to 10 help me, but I have some other people, and most of 11 them are former Sandler Occupational Medicine former 12 employees who will be working with me. 13 Q Understood. 14 Currently, are you working out of your 15 home? 16 A I am. 17 Q When were you first contacted regarding 18 the Shifflett case? 19 A I believe it was about a couple of 20 months ago. I don't remember the exact date. 21 Q Did you get a transmittal letter or an 19 1 E-mail or something from Ford or its lawyers asking 2 you to get involved? 3 A I got either a phonecall or an E-mail. 4 Q Have you looked to see which one it 5 was? 6 A I mean, I have gotten a couple of 7 E-mails. I just don't remember now if they also 8 called me. 9 Q Did you bring the E-mails with you? 10 A No, I didn't. 11 Q Was there any substantive information 12 regarding the case contained in any of the E-mails? 13 A No. The E-mails just asked if I would 14 work on these cases. I said I would. And then 15 materials were provided via the E-mail. The access 16 code for the medical was provided via an E-mail. In 17 fact, I believe all information was provided by 18 E-mails, including E-mails asking when I was 19 available for a deposition and then also E-mails 20 confirming today's deposition. 21 Q E-mails were made out to Mr. Johnson at 20 1 Whiteford, Taylor & Preston in Baltimore. Was it 2 Whiteford, Taylor that was contacting you in these 3 E-mails or somebody else? 4 A The initial contact came from the 5 Wilson, Elser law firm. The materials came from the 6 Whiteford, Taylor & Preston law firm. 7 Q What was your assignment? 8 A My assignment was to review the 9 materials and come to some conclusions regarding, if 10 I could, the plaintiffs' exposures to asbestos. In 11 particular, look at the plaintiffs' exposures to 12 asbestos from any handling of products supplied by 13 Ford Motor Company and to prepare a report for each 14 plaintiff of my findings and opinions. 15 Q Do you keep copies of your reports from 16 prior cases? 17 A I have copies in the computer. 18 Q And do you keep a file of each report? 19 In other words, have you got a file on 20 your computer that says something like, you know, 21 old reports or something where you throw a copy in 21 1 of each report? 2 A No. What I do is I have a file of each 3 case which contains the materials that might have 4 been sent to me in that case. And included in that 5 file would -- if a report was requested, that's 6 where I would put it. 7 Q Now, does the file that you currently 8 have on your computer include reports that you were 9 involved with when you were with Sandler? 10 A Well, it certainly has the reports from 11 June on. It does not have the reports earlier than 12 June. 13 Q How much time have you spent on the 14 Shifflett case to date? 15 A I would say I probably spent about a 16 day and a half, in that neighborhood, you know, 17 assuming eight hours to a day. 18 Q Have you produced a bill at this point 19 regarding Shifflett? 20 A Not yet. 21 Q Are you paid by the hour for your 22 1 consulting work for Ford? 2 A Yes. 3 Q At what rate? 4 A $250 an hour. They get a special rate. 5 Q What is your rate for non-Ford 6 customers? 7 A Are you asking the rate that Sandler 8 charged for me or the rate that I will be charging 9 now that I am on my own? 10 Q Both. 11 A Sandler while I was there had been 12 charging $310 an hour for preparation and 425 for 13 testimony. I am not privy to seeing the bills they 14 have generated since June 30th, so I can't be 15 certain what they are charging. I will be charging 16 $280 an hour for preparation and 325 for testimony 17 going forward. 18 Q All right. Since you left Sandler 19 in -- was it June? 20 A End of June. 21 Q -- end of June, approximately what are 23 1 your total billings to Ford? 2 A I don't know the number. I would 3 estimate it might be -- I might have sent out bills 4 somewhere around 20, maybe 25,000. I am not sure. 5 Q Total? 6 A Total. 7 Q And approximately how many cases have 8 you worked on for Ford since leaving Sandler? 9 A Again, I don't know the number. I 10 think it might have been about eight or ten. 11 Q Were there any drafts of your report 12 dated November 9, 2009 in the Shifflett case? 13 A There were drafts, but they change in 14 the computer as I finish the report. 15 Q Were any of those drafts shared with 16 counsel for Ford or any representatives of Ford? 17 A I may have sent a draft. I don't 18 really remember. I do recall that they either 19 didn't ask for any change or there were what I would 20 call grammatical suggested changes. 21 Q To whom was the draft, sir? 24 1 A I believe I probably -- I may have sent 2 it to -- well, I sent it I think to Mr. Johnson. 3 Q Have you spoken to counsel for Ford 4 about the Shifflett case since, say, November 9? 5 A Yes. 6 Q Who and when? 7 A Since November 9th, I talked to 8 Mr. Krause. 9 Q Okay. When and how many times? 10 A I talked to him once just to say hello 11 and set a time to talk about the case, and then I 12 talked to him a second time about the case, and that 13 was last week. 14 Q How long did that take? 15 A I think that that entire conversation 16 took -- discussing the Shifflett and Rehrig case 17 probably took about a half hour. 18 Q On the telephone? 19 A Yes. 20 Q Do you have any materials that you 21 anticipate using at trial in this case in connection 25 1 with your testimony, be they physical demonstrative 2 aids, PowerPoint presentations, posters? Do you 3 have anything that you expect to use at trial? 4 A At the moment, I don't have anything. 5 I don't know if they are going to ask me to prepare 6 anything or not. 7 Q Have you used, for example, PowerPoint 8 presentations to help illustrate your testimony in 9 the past? 10 A I don't think I have used a PowerPoint 11 presentation. No, I take that back. I have in a 12 trial, but I don't think it was in an asbestos 13 trial. 14 Q When is the last time you gave 15 testimony in an asbestos trial relating to exposure 16 or claimed exposure to asbestos from brakes? 17 A I can tell you the case that pops into 18 my mind as the latest. 19 Q Please do. 20 A And that was a Baltimore case a few 21 years ago. 26 1 Q Since testifying in Baltimore a couple 2 years ago in a case alleging exposures to brakes, 3 have you testified in trial in any case involving 4 asbestos in brakes? 5 A Well, that's what I was talking about 6 in this Baltimore case. 7 Q Okay. Was that two years ago, five 8 years ago? 9 A I believe it was a couple of years ago. 10 I can't be exact. 11 Q Okay. Is it on your testimony list? 12 A Hopefully. 13 Q So if I find the one from a couple 14 years ago in Baltimore that's a trial testimony, I 15 probably have it? 16 A That's right. 17 Q I got you. 18 In that case, did you use any exhibits 19 or demonstrative aids in connection with your 20 testimony? 21 A I do not recall using any demonstrative 27 1 exhibits or PowerPoint. 2 Q Did you bring in a brake drum and some 3 brake shoes or anything like that? 4 A No. 5 Q Have you ever had a meeting with the 6 lawyers for Ford or any of your other 7 asbestos-related clients where they recorded you 8 giving questions and answers in preparation for 9 testimony in deposition or trial? 10 A I do not recall them ever recording our 11 discussions. 12 Q That would apply to video recording of 13 any format and audio recording as well? 14 A That would be correct. 15 Q Okay. Now, have you had such 16 preparation sessions with the lawyers for Ford or 17 any of your other asbestos-related clients? 18 A Now, you are specifically asking me 19 have they ever, like, asked me questions that they 20 thought may be -- I might be asked in trial? 21 Q Sure, yeah. You were sitting down with 28 1 some lawyers and they asked you questions as if they 2 are the plaintiff's lawyer. 3 A Yes. 4 Q When was the last time? 5 A You know, I can't remember a specific 6 time, but I know that has happened. 7 Q Tell me what you and Mr. Krause 8 discussed about the Shifflett and Rehrig cases when 9 you spoke about them in the last month. 10 A Basically what we talked about was what 11 their careers were and then their work with vehicles 12 and then specifically how they replaced brakes and 13 clutches and gaskets and then also how many of those 14 may have been on products supplied by Ford, what the 15 resulting dose may have been and whether it could 16 have contributed to any asbestos-related disease. 17 And then I discussed with him my 18 understanding of the studies talking about the 19 exposures to asbestos, specifically that the 20 exposures are extremely low and why it is that they 21 are low. 29 1 I also went over with him my personal 2 experience from having changed hundreds of brakes 3 myself, most of them on Ford vehicles. And 4 basically, that was what we talked about. 5 Q Had you ever spoken to Mr. Krause 6 before? 7 A Yes. 8 Q In your half-hour conversation related 9 to these two cases, did you really go back over your 10 understanding of what the studies say? 11 A Just very briefly. 12 Q Maybe to the extent that you said they 13 hadn't changed? 14 A Well, I talked about, you know, the 15 very low numbers and -- I mean, I don't think I 16 would have said that they have changed because the 17 numbers are what the numbers are. 18 Q All right. I mean, you didn't have to 19 tell Mr. Krause what your understanding of the 20 studies was, did you? He has known that for a long 21 time, hasn't he? 30 1 A Well, it was more to make sure he knew 2 I knew what they were. 3 Q I got you. 4 Now, you were never a professional 5 vehicle mechanic; am I correct? 6 A Not professional. I have just been 7 working on cars for about 50 years. 8 Q I understand. 9 And you saw Mr. Shifflett's testimony 10 that -- and vehicle list -- that he had had a lot of 11 cars and done, I think his testimony was, at least a 12 hundred brake jobs? 13 A I saw the number of a hundred, yes. 14 Q You don't find anything unusual about 15 that, given your personal experience, do you? 16 A No. 17 Q All right. And with respect to whether 18 exposure to asbestos from brake repair work could 19 cause or contribute to disease, is it fair to say 20 that your opinions in that regard have not changed 21 in the last decade? 31 1 A I would say that is true, however, 2 there has been additional studies that provide more 3 understanding which only strengthens my opinions, I 4 believe. 5 Q So, for example, you cited Reference 9 6 and 10 in your report, the Blake and Weir, W-E-I-R, 7 articles which were published in 2003 and 2001, 8 correct? 9 A Yes. 10 Q And those came out in the last decade? 11 A That's correct. 12 Q Those reports, however, did not change 13 your opinions with respect to the potential 14 exposures for the brake work; is that fair to say? 15 A I think that's fair. It would be 16 better to say they complimented. 17 Q All right. So, for example, if I were 18 to review a deposition of yours from 1998 in which 19 you testified that it wouldn't matter if you did 20 brake repairs every day for 30 years, you are not 21 going to get sick from it, that's an opinion you 32 1 still hold? 2 A You know, assuming they do brakes in a 3 normally foreseeable manner, yes, I think even if 4 you did them on a daily basis, you wouldn't be 5 exposed to a dose of asbestos that could increase 6 your risk of getting an asbestos-related disease. 7 Q What dose of asbestos is the lowest 8 dose that would increase the risk of an individual 9 contracting an asbestos-related disease? 10 A Well, the first thing is it's dependent 11 on fiber type. And everything I have seen is that 12 the brakes in this country use chrysotile when they 13 used asbestos in brakes. And my understanding is 14 that one must be exposed to levels equal to or 15 exceeding 20 or 25 fiber years before one would see 16 an increased risk of getting an asbestos-related 17 disease. 18 Q 20 to 25 fiber years. Is that any 19 particular length of fiber you are talking about 20 there? 21 A Yes, it would be anything greater than 33 1 five microns which is what I have always said in the 2 past. I believe some of the recent work by Berman 3 and Crump suggests it may even require a fiber 4 longer than five microns to increase the risk of 5 getting disease. 6 Q What work are you talking about, 7 Doctor? 8 A Berman and Crump have done some risk 9 assessments where they attempted to do meta-analysis 10 on a number of cohort epidemiology studies. And 11 they attempted to go a little further in defining 12 fiber type and fiber morphology. 13 They have a recent paper I think in 14 2008 where they talk about the results of their 15 latest work in attempting to describe the risks 16 associated with exposure to asbestos by fiber 17 morphology. And I believe they have that conclusion 18 in there. I believe they also had that conclusion 19 in their assessment that they provided to the 20 Environmental Protection Agency in around 2003. 21 Q Okay. I appreciate your explanation 34 1 there, sir. 2 The assessment that was provided to the 3 EPA was never adopted by the EPA, correct? 4 A My understanding is it was accepted to 5 the point of being distributed, but it was never -6 I believe it was taken off the EPA site and was 7 never finalized. 8 Q And, in fact, it underwent a peer 9 review; is that correct? 10 A I am assuming it underwent peer review. 11 Q Do you know whether the peer review 12 noted that there were many problems with the 13 incomplete nature of the data? 14 A I did not go through the peer review 15 process, so I don't know. 16 Q With respect to the 2008 publication by 17 Berman and Crump, they were essentially looking at 18 the same data that they looked at in 2003; is that 19 correct? 20 A I believe there was -- I am not sure 21 how much additional work they did. I do know that 35 1 they went a little further than some other studies 2 in attempting to identify the morphology of 3 exposure. 4 Q And what information did Berman and 5 Crump have regarding the morphology of the fibers 6 that were measured or that were present in the 7 historical settings that were studied in the studies 8 that they meta-analyzed? 9 A Well, I believe that in some cases, 10 there were actually some filters that were analyzed 11 by TEM that had originally been analyzed by PCM, and 12 that they also looked at some other studies where 13 they attempted to utilize TEM data to better detail 14 what types of exposures might have occurred in some 15 of the studies, some of the epi studies where PCM 16 data or even possibly some dust counting data was 17 used. 18 Q A lot of the historic epidemiology 19 studies that provide the mortality data had samples 20 that have been selected by midget impinger, correct? 21 A If they were midget impinger, then yes, 36 1 it would be a dust sample. I do believe there is a 2 fair amount of information by PCM, but I believe 3 some of the data was impinger data. 4 Q And one of the things that Berman and 5 Crump did in 2008 was take dust samples that had 6 been analyzed by electron microscopy from various 7 job sites and to assume that the sampling they saw 8 by transmission electron microscopy at those job 9 sites were comparable to the historic distributions 10 that may have been in place at the sites where the 11 epidemiological information came from, correct? 12 A There were assumptions made in 13 attempting to use some TEM data and attempt to 14 assign fiber types and morphology to past studies. 15 Q And are you familiar with Dr. Dement's 16 recent reanalysis of historic samples by electron 17 microscopy? 18 A I have seen his report. It's a little 19 while since I read it, but I did review it. 20 Q And in that report, Dr. Dement and his 21 colleagues looked at dust samples from a particular 37 1 factory and then used that information to examine 2 outcomes at that particular factory, correct? 3 A Again, it's been a little while since I 4 have looked at it, so I really would have to look at 5 it again before I can comment on what they did. 6 Q Fair enough. 7 Did you look at any of Mr. Shifflett's 8 deposition on DVD? 9 A Yes. Well, I mean, through the 10 computer. 11 Q And you also saw a picture of 12 Mr. Shifflett as opposed to reading the transcript? 13 A Yes. I remember seeing some pictures 14 of him as a younger man. 15 Q Okay. And did you view any of his 16 actual testimony in the format that it was recorded, 17 in other words, watching him on the television 18 screen as opposed to reading it? 19 A No, I only read. 20 Q Other than the E-mails that you have 21 referenced, the one from Wilson, Elser and 38 1 subsequent E-mails from -- to and from Whiteford, 2 Taylor & Preston, are there any other written 3 communications between you and Ford or its lawyers 4 in connection with the Shifflett case? 5 A No, I don't think so. 6 Q Are there any in connection with the 7 Rehrig case other than that type of communication? 8 A No. 9 Q How many proceedings are reflected on 10 the testimony list that we marked as Exhibit 1? 11 A How many entries? 12 Q How many depositions and trials total. 13 A I have never totaled them. 14 Q How many pages is the list? 15 A The list is 16 pages long. 16 Q Have you ever in that time period from 17 the time period the list begins through today 18 provided testimony at the request of an individual 19 suffering from an asbestos-related disease? 20 A No. 21 Q And when is the first time that you 39 1 provided expert witness testimony in any 2 proceedings? 3 A It would have been I think around the 4 mid '70s. 5 Q Tell me what types of things you did. 6 A It was while I was an employee of Ford 7 Motor Company, and it was a carbon monoxide claim. 8 Q Somebody had gotten sick from carbon 9 monoxide they claim came from their Ford vehicle? 10 A I think they died. 11 Q That's pretty sick. 12 And you were an employee of Ford and 13 testified on Ford's behalf? 14 A Yes. 15 Q Was that a deposition or a trial, or 16 both? 17 A I believe I have done both. I know I 18 have provided trial testimony. 19 Q I apologize, sir, I don't have your CV 20 in front of me. Can you just give me the years that 21 you worked for Ford? 40 1 A '73 through '78. 2 Q And when you left Ford, where did you 3 go? 4 A I went to -- it was called JRB 5 Associates which was a subsidiary of SAIC, Science 6 Applications, Incorporated. 7 Q Right. 8 Was it Incorporated or International? 9 A International. I think it's 10 International. 11 Q Okay. I got you. I am familiar with 12 that. 13 Why did you leave Ford? 14 A Because SAIC offered me a lot more 15 money. 16 Q It sounds like a pretty good reason. 17 When is the first time you provided any 18 expert witness services, whether it resulted in 19 testimony or just consulting, regarding asbestos? 20 A I believe that would have been in 21 around 1984, 1985. 41 1 Q While you were working for NIOSH? 2 A Yes. 3 Q And who was requesting you provide 4 expert witness services? 5 A General Electric. 6 Q Was that a crane brake case? 7 A It was. 8 Q GE or its lawyers hired you? 9 A Yes. 10 Q What was the alleged condition? 11 A When you say condition -12 Q Medical condition. 13 A You know, I don't recall with 14 certainty, but it might have been mesothelioma. 15 Q All right. Now, did you have to go 16 through any procedures with NIOSH to get approval 17 for working as an expert witness with General 18 Electric on an issue relating to occupational 19 health? 20 A Yes. 21 Q What type of things did you have to do? 42 1 A You had to get approval for an outside 2 consulting activity. 3 Q Can you describe for me the process, in 4 general terms, that you were required to follow to 5 get that approval? 6 A You would fill out a form and submit 7 it, and then the Agency would either approve it or 8 not approve it. 9 Q And I assume they approved it? 10 A Yes. 11 Q You did the work, so -12 In doing that work or in seeking that 13 approval, were you required to inform NIOSH the 14 substance of what your anticipated testimony would 15 be? 16 A Well, I certainly wouldn't be telling 17 them what the substance of my testimony was because 18 at that time, I wouldn't have known what it was. 19 Q I understand. 20 Were you required after you formed your 21 opinions in that case -- let me start over. 43 1 Am I correct that the approval was 2 sought before you had formed opinions in the case? 3 A The approval was sought before I 4 started working on the activity. 5 Q Right. 6 And before you started working on the 7 activity, you did not have opinions already formed; 8 am I correct? 9 A Correct. 10 Q And were you required after you formed 11 opinions to tell NIOSH the substance of those 12 opinions and seek any additional approval? 13 A No. 14 Q So in '84, '85, there is the case that 15 you get hired by GE for regarding crane brakes. And 16 is the friction material that was used in overhead 17 cranes the same type of material in terms of 18 composition as that used in automobile brakes? 19 A My understanding is that is correct. 20 And, in fact, I have had overhead crane brakes 21 analyzed, and those that contained asbestos, it was 44 1 chrysotile. 2 Q And the binders and other materials 3 that make up the non-asbestos portion of the 4 friction material is essentially similar to those in 5 car brakes? 6 A I did not have a complete analysis. My 7 assumption is that, you know, while there may be 8 some variations in the binder, it essentially serves 9 the same function and would behave similarly in 10 terms of binding the asbestos. 11 Q What other crane brake companies or 12 companies that provided materials for crane brakes 13 have you provided testimony for? 14 A I believe I have provided testimony for 15 Eaton/Cutler-Hammer, and there probably were some 16 others, but I don't know the names of them at this 17 time. 18 Q How about Bucyrus? 19 A That name does not sound familiar to 20 me. 21 Q Erie? I think I saw a reference to 45 1 Erie in one of the old depositions I was looking at. 2 A I have never done, that I remember, 3 work for Erie. Now, you are talking about crane 4 manufacturers? 5 Q Yes, sir. 6 A Pardon? 7 Q Yes, sir. 8 A I have done work with Reading Crane, 9 Harnischfeger cranes. 10 Q Okay. After the first GE case, what 11 was the next type of asbestos material that you 12 provided expert witness services for? 13 A You know, I don't know what that would 14 be because I wasn't keeping a good record at that 15 time. The next one that comes to mind would have 16 been in the late 1980s where I did -- I know I think 17 I started doing some work with Bendix at that time. 18 Q And at the time, was the company that 19 was hiring you to talk about Bendix brakes 20 technically called Allied Signal? 21 A You know, I don't know exactly when 46 1 Allied Signal purchased Bendix brakes, so I can't 2 tell you for sure, but at some point, I was doing 3 work for Allied Signal who did own Bendix. 4 Q And that was in the late '80s? 5 A Again, I don't remember when Allied 6 Signal purchased Bendix brakes. 7 Q I am sorry. I asked a poor question, 8 and it led to an ambiguous answer. 9 I was trying to say when -10 approximately when was the first time you started 11 performing consulting work relating to Bendix 12 brakes? 13 A And, again, I think it was the late 14 1980s. 15 Q Do you believe it was during the time 16 that you were an employee of the Environmental 17 Protection Agency? 18 A That's possible, yes. 19 Q And you worked as a direct employee of 20 the EPA through February of '89 or so? 21 A As a full-time employee, yes. 47 1 Q Right. 2 And then as a part-time employee or 3 maybe a contractor, that continued until '92? 4 A Correct. 5 Q Do you recall whether before you got 6 involved in providing consulting services for Bendix 7 relating to brakes, you had to seek approval of that 8 consulting work from the EPA? 9 A The EPA was a little different than 10 NIOSH. I obtained official permission to do outside 11 activities not for each case, like NIOSH required, 12 but just to do it in general. 13 Q In obtaining that permission, describe 14 the process to me. 15 A My recollection is I wrote a letter to 16 my supervisor, and he submitted it to someone else, 17 where I talked about the types of things I 18 anticipated doing. And I received permission to do 19 it. 20 Q Who was your supervisor? 21 A My direct supervisor at EPA was a man 48 1 by the name of David Weitzman. 2 Q When is the last time saw Mr. Weitzman? 3 A I believe it might have been around a 4 year ago. 5 Q He is still alive, to the best of your 6 knowledge? 7 A Yes. He is younger than me. 8 Q Does he still work at EPA, to the best 9 of your knowledge? 10 A No, he does not work at EPA at this 11 time. 12 Q Where is the most recent place that you 13 are aware of him working? 14 A He works at the Department of Energy. 15 Q And do you know what he does at DOE? 16 A He is an industrial hygienist. 17 Q In the letter where you described the 18 types of activities you would be doing, can you tell 19 me whether any substantive information was included 20 regarding what your opinions might be? 21 A You know, I don't remember what was in 49 1 that letter at this time, but I am fairly confident 2 it talked about what I would do, not what my 3 opinions were. 4 Q Understood. 5 When you wrote that letter at EPA, was 6 it in connection with wanting to begin doing work 7 for Bendix or were there other consulting, outside 8 consulting things that you were involved in at the 9 time at the genesis of the letter? 10 A I did various things. And I don't 11 believe the letter talked about anything specific. 12 That's my recollection. 13 Q Okay. With respect to companies 14 involved in litigation concerning allegations of 15 exposure to asbestos from brakes, in addition to 16 Bendix and any corporate successors to Bendix, can 17 you tell me what companies you provided consulting 18 expert witness services to? 19 A So you are asking me for a list of 20 companies that made or supplied brakes that were 21 involved in litigation and asked me to evaluate 50 1 potential exposures? 2 Q Yeah, that's a good way to put it. 3 A Let's see. We have already mentioned 4 General Electric, Eaton/Cutler-Hammer, Abex, 5 Westinghouse, Griffin Wheel Company. 6 Q Ford? 7 A Ford, General Motors, Chrysler. I 8 believe I was retained by Honda once. 9 Q What about Toyota or Nissan? 10 A That I don't think so. 11 Q Borg-Warner? 12 A Oh, yes, Borg -- well, they are not 13 brakes. 14 Q Did Borg retain you for clutches? 15 A Yes. 16 Q All right. What about 17 Maremont/Grizzly? 18 A I believe I had a muffler case for 19 Maremont, but I don't know if I had a brake case. 20 Q All right. Firestone? 21 A No. 51 1 Q Wagner? 2 A I don't think so. 3 Q Any others that come to mind? How 4 about Caterpillar? 5 A Oh, I don't think so, but Mack Truck. 6 Q Mack. 7 All right. International Harvester? 8 A No. 9 Q Any truck or trailer manufacturers 10 other than Mack? 11 A Oh, Rockwell International. 12 Q As we sit here today, is that as 13 complete a list as we can get at this point of the 14 companies that you have provided consulting services 15 to relating to brakes? 16 A That's what I remember, what is coming 17 to mind at this time. 18 Q Any other companies relating to 19 clutches than Borg-Warner? 20 A No, I can't think of any other company 21 other than Borg-Warner. And also, I know I have 52 1 done some work with a couple of brake relining 2 smaller companies, but I don't know the names. 3 Q Let me ask you about a couple of other 4 companies. 5 Western Auto? 6 A No, I don't recall that. 7 Q Sears? 8 A Sears? 9 Q Yeah. 10 A I think I did a tile case from them, 11 but I don't think brakes. 12 Q Vinyl asbestos tile? 13 A Yes. 14 Q What about Genuine Parts, NAPA? 15 A You know, I can't say with 100 percent 16 certainty I never did, but it's not ringing a bell. 17 Q J.C. Penney? 18 A No. 19 Q What about gaskets? Have you provided 20 consulting services to companies relating to 21 asbestos in gaskets? 53 1 A Yes. 2 Q Which companies? 3 A Now, these are not companies that made 4 the gaskets, they are companies that used gaskets? 5 Q I would like to do both. 6 A Well, the companies that made gaskets, 7 I have done some work with Crane in the past, but I 8 haven't done anything for them for quite a while. 9 Q Okay. Now, just so the lawyer for 10 Crane Company on the phone doesn't have a heart 11 attack, are you talking about John Crane Company or 12 Crane Company? 13 A Actually, I would be talking about 14 both. 15 Q Okay. 16 A But the one that I talked about having 17 not done anything in a long time would be John 18 Crane. 19 Q All right. What about Garlock? 20 A I don't think I have ever done anything 21 for Garlock. 54 1 Q A.W. Chesterton? 2 A I don't remember, but I am not as sure. 3 Q Goodyear? 4 A I think I may have done something with 5 Goodyear. I just -- I think so. I am not sure. 6 Q Durabla? 7 A No. 8 Q Flexitallic? 9 A No. 10 Q Are there any other gasket-related 11 companies? 12 A Yes. It's not coming to me. Velumoid. 13 Q Right. 14 A And I believe there is one more company 15 that made head gaskets that the name isn't coming to 16 me. 17 Q It's not Mr. Gasket, is it? 18 A No. It's not coming to me. 19 Q All right. I will just put down head 20 gasket company. 21 What about valve packing? 55 1 A I have done work for companies that 2 made valves that used packing. 3 Q Okay. What companies, sir? 4 A Crane, Leslie Control. I can't think 5 of the name of it. But a company that made steam 6 traps and valves. Yarway. 7 Q Right. 8 A There may be a few more that just 9 aren't coming to mind. 10 Q Understood. 11 We have covered brakes, clutches, 12 mufflers, gaskets and valve packing. Are there any 13 other types of asbestos products or 14 asbestos-containing products which you have provided 15 expert witness consulting services? 16 A Well, pumps and electrical equipment. 17 Q Pumps. 18 What about joint compound? 19 A Yes. 20 Q Let's start with pumps. What companies 21 for pumps? 56 1 A ITT, Goulds. 2 Q Warren? 3 A I think I have done Warren. 4 Q Worthington? 5 A I don't think so. Those are the ones I 6 remember. 7 Q Ingersoll-Rand? 8 A I don't think so. I can't be sure, but 9 I don't think so. Oh, Gardner Denver. 10 Q All right. Let's go to electrical 11 equipment. What types of electrical equipment and 12 what companies? 13 A Turbines, motors, electrical control 14 equipment. Eaton/Cutler-Hammer, General Electric, 15 Square D, Allen-Bradley. Those are the ones I 16 remember. 17 Q Westinghouse? 18 A Yeah, Westinghouse. 19 Q Allis Chalmers? 20 A No. 21 Q Now it's happening to me. There is one 57 1 that's escaping me. Well, it will come to me. 2 What types of electrical controls are 3 you talking about when you say electrical controls? 4 A They are generally equipment and panels 5 that are controlling the distribution of 6 electricity. 7 Q What are the allegations of exposure 8 that relate to those types of materials? 9 A Generally, it will be arc chutes and 10 hard electrical insulating panel boards. 11 Q Have you performed any consulting 12 services for the manufacturers or sellers of 13 asbestos-containing phenolic resins used in 14 electrical equipment? 15 A I have not done any testing on behalf 16 of the manufacturers of Bakelite-type materials. 17 Q And we have got Bakelite with a capital 18 B? That's Union Carbide, right? 19 A Yes, that's my understanding. 20 Q And you have not done work for them 21 relating to their product? 58 1 A That is correct. 2 Q Have you tested Union Carbide Bakelite? 3 A I have tested Bakelite-type materials. 4 I don't necessarily know who supplied it. 5 Q Understood. 6 Have you done any work for Durez or 7 Plenco? 8 A Could you repeat that? 9 Q Durez? 10 A No. 11 Q Plenco Plastics Engineering? 12 A No, that doesn't sound familiar. 13 Q Now, with regard to the testing that 14 you performed on phenolic resin material in 15 electrical applications, have you found that they 16 release asbestos dust during their manipulation? 17 A I have found that they either don't 18 release or release levels that are extremely low. 19 Q What type of manipulation was being 20 performed in the testing that you are aware of? 21 A And in this, I am also including 59 1 testing of arc chutes, some of which are phenolic, 2 and others are ceramic based. And the types of 3 operations are normal operation, breaking the parts 4 into pieces, sweeping and cleaning and inspecting. 5 Q Okay. Are you aware of testing of the 6 drilling of those materials? 7 A I am aware of testing of drilling. I 8 have not done it. 9 Q Have you performed any testing of 10 sawing the materials with a reciprocating saw, a 11 power jigsaw? 12 A I am aware of sawing studies. I have 13 not done it. 14 Q Are you aware of any studies cutting 15 the material with a circular saw? 16 A You know, I am aware of a study where 17 these materials were abraded with various tools. I 18 don't remember exactly which tools were used. 19 Q Okay. Talking about joint compound, 20 what consulting work have you provided regarding 21 joint compound and asbestos? 60 1 A I have been asked to look at testimony 2 regarding the use of joint compound and try to 3 evaluate the exposures associated with that use. 4 Q What companies have you performed such 5 work for? 6 A UGL, Bondex and Kaiser-Gypsum, and I 7 think I may have done some work for Georgia-Pacific 8 and U.S. Gypsum. 9 Q What about National Gypsum? 10 A That doesn't sound familiar. 11 Q All right. So we have got brakes, 12 clutches, mufflers, gaskets, valves, pumps, 13 electrical equipment and joint compound. Are there 14 any other products that contain asbestos that you 15 have performed expert witness consulting in 16 connection with? 17 A Steam traps and -- I just had it. Wait 18 a second. Steam traps and one other. It just went 19 out of my head. 20 Q Any steam trap manufacturers other than 21 Yarway? 61 1 A Armstrong. 2 Q Have you ever done any work for any 3 manufacturers of boilers? 4 A Yes. 5 Q Who? 6 A Burnham, American Standard, Kewanee, 7 Cleaver-Brooks. 8 Q Did you do any boiler work for Crane? 9 A I am not aware of Crane making any 10 boilers. 11 Q What about National U.S. Radiator or 12 Federated? 13 MS. HAUSSLER: Objection to form. 14 A No. 15 Q Foster Wheeler? 16 A No. 17 Q Babcock & Wilcox? 18 A No. 19 Q Combustion Engineering? 20 A No. 21 Q Going back to turbines, did you ever do 62 1 any work for Seamans, Demag, Delaval? 2 A No. 3 Q Did you do any work regarding ceiling 4 tiles or floor tiles? 5 A Yes. 6 Q I think you mentioned you might have 7 done a floor tile case for Sears. Any other floor 8 tile? 9 A Kentile, Congoleum, Goodyear. In fact, 10 Goodyear might be the only -- I think I talked about 11 Goodyear for brakes. It might have been tile. 12 Q Right. 13 A Those are the ones I can think of. 14 Q Ever do any work for Cycloid? 15 A It doesn't sound familiar. 16 Q What about ceiling tiles? 17 A I believe I did some work for ceiling 18 tiles for U.S. Gypsum. 19 Oh, I remember. Furnace cement. 20 Q Oh, yes. 21 Whose furnace cement? 63 1 A Hercules. 2 Q Any sprayed insulation or texturing 3 product manufacturers, W.R. Grace or -4 A Yes. I am -- it's a spray insulation 5 on beams, fireproofing. I can't think of the name 6 right now. It's a product that came from England. 7 Q Limpet? 8 A Limpet, that's it. 9 Q Armstrong Contracting and Supply? 10 A I believe they then supplied it from 11 Canada, but that wasn't the client. The client that 12 I worked for or was retained by to provide opinions 13 was a contractor that purchased Limpet and then 14 applied it. 15 Q Right. 16 Any other fireproofing spray companies? 17 U.S. Mineral? 18 A I also have done work for Armstrong 19 World Industries, primarily -- a little bit for 20 their tile but primarily when they had their 21 contract division for insulation installation. 64 1 Q Right. 2 In connection with any of your work 3 regarding any of these types of asbestos-containing 4 products, have you at any time provided testimony at 5 the request of an individual alleging an 6 asbestos-related injury? 7 A Not that I can recall. 8 Q Have you ever been asked to do so? 9 A That's possible. 10 Q Is it possible for you to approximate 11 for me, sir, your total earnings from expert witness 12 services from the time between 1984 or '85 when you 13 first worked with GE to the present date? 14 A No. 15 Q Are you currently, meaning since you 16 left Sandler, doing any consulting work that is not 17 related -- any professional work that is not related 18 to asbestos? 19 A Yes. 20 Q What other types of things are you 21 working on? 65 1 A I think I have a welding case, and 2 there might be a few other litigation cases not 3 involving asbestos. 4 Q What percentage of your current 5 activities is related to asbestos? 6 A The majority. 7 Q 80 percent, 90 percent? 8 A Probably at this time, it's 90 percent, 9 possibly even a little more. 10 Q Now, can you approximate for me, sir, 11 the total amount of billings for your work since 12 June of this year when you left Sandler? 13 A Let's see. I think it's about 140, 14 130,000. 15 Q And of that 140 or 130,000, can you 16 tell me what portion of that is related to brakes? 17 A No. That I can't tell you. 18 Q More than half? 19 A No, I just don't know. It may not be. 20 Q Okay. Going back -- we are moving on 21 to a new topic, sir. 66 1 A while back, you indicated that I 2 think your opinion is it takes between 20 and 25 3 fiber years of exposure to chrysotile asbestos to 4 cause or contribute to disease? 5 A To certain asbestos-related diseases, 6 yes. 7 Q Okay. What diseases? 8 A Specifically, asbestosis and lung 9 cancer. 10 Q What about mesothelioma? 11 A No. Mesothelioma -- based on what I 12 have reviewed, it is possible that chrysotile does 13 not increase the risk of causing mesothelioma. But 14 if it does have the -- if it is possible that 15 chrysotile asbestos can increase the risk of getting 16 mesothelioma, it would require a dose that is higher 17 than 20 to 25 fiber years. 18 Q Am I correct that this has not been -19 this topic has not been the subject of original 20 research by you? 21 A Not original, no. 67 1 Q Okay. I would like you to tell me what 2 information it is that forms the basis of your 3 opinion that it takes more than 20 to 25 fiber years 4 of exposure to chrysotile asbestos to cause or 5 contribute to a mesothelioma. 6 A From literature that I have reviewed 7 over the past, primarily epidemiology studies and 8 summaries of epidemiology studies. 9 Q Do any of those studies or summaries of 10 those studies state specifically what you just said, 11 that it takes more than 20 to 25 fiber years to 12 cause or contribute to mesothelioma? 13 A I believe they do. 14 Q Okay. Can you tell me which ones so 15 that I can look them up? 16 A You know, I don't remember if that was 17 the exact wording, but I think even in some of 18 Berman and Crump's evaluation, Liddell's studies of 19 Quebec. I don't know if it has that exact wording, 20 but I think that there may be that type of 21 implication. 68 1 Q Liddell study. What year, approximate 2 year are you talking about? 3 A I think there is one in 1997 where he 4 is reviewing the cohorts in Quebec mining studies. 5 Q I have got a '97 Liddell article, the 6 1891 to 1920 birth cohort of Quebec chrysotile 7 miners. Is that what you are talking about? 8 A That may be the one. 9 Q Okay. Are you familiar with the recent 10 article by Pintos and others, including Bruce Case, 11 from October of this year that looked at the risk of 12 mesothelioma in Montreal? 13 A You know, I may have seen it. I don't 14 remember at this moment. 15 Q Any other articles that you believe 16 state that it takes at least 20 to 25 fiber years of 17 exposure to chrysotile to cause or contribute to 18 mesothelioma? 19 A Again, you know, I can't -- I don't 20 know if it's exactly that wording, but there is a 21 study by Yarborough, a study by Goodman. Some of 69 1 those may be more related to actually looking at 2 cohorts of people working on brakes. And so they 3 may have been zeroing in more on lower exposures to 4 chrysotile. And they are concluding that certainly 5 that work would not increase the risk of getting any 6 asbestos-related disease. I don't remember now if 7 Yarborough looked at higher exposures. 8 Q When you are talking about 9 Yarborough -- was I interrupting you, because -10 A No, I am done. 11 Q When you are talking about Yarborough, 12 are you talking about his 2006 article, Chrysotile 13 as a Cause of Mesothelioma: An Assessment Based on 14 Epidemiology? 15 A I think that's right. 16 Q Mr. Yarborough works for a company 17 called Exponent? 18 A I don't remember for sure, but I think 19 that's correct. 20 Q What do you know about Exponent and its 21 connection to Ford, General Motors and Chrysler? 70 1 A I don't know. I believe they may have 2 done contract work for Ford, but that's all I would 3 know. 4 Q Now, you mentioned Goodman. Are you 5 referring to Goodman and other articles purporting 6 to be a meta-analysis of various studies that 7 relates to the allegations that asbestos in brakes 8 can cause mesothelioma and lung cancer? 9 A Yes. 10 Q Were you referring to any other paper 11 authored by Goodman? 12 A No. That's the one I think I was 13 referring to. 14 MR. RUCKDESCHEL: Folks, we have been 15 going for a bit here. Can we take a five-minute 16 comfort break? 17 THE WITNESS: Sure. 18 MR. KRAUSE: Sure. 19 (Whereupon, recess taken -- 3:28 p.m.) 20 (Whereupon, after recess -- 3:32 p.m.) 21 BY MR. RUCKDESCHEL: 71 1 Q Dr. Rabinovitz, at what temperature 2 does the process of water being driven off from 3 chrysotile tend to occur? 4 A It starts coming off actually at fairly 5 low temperatures, but the conversion becomes fairly 6 quick at around 7 to 800 degrees Centigrade. 7 Q Back in 1998 -- I reviewed a deposition 8 of yours from back in 1998 where you indicated -9 let me just pull it up so I make sure I am getting 10 it right. 11 In the past, you have indicated that 12 water starts to get driven off from the asbestos 13 fiber somewhere around 500 degrees Centigrade. Is 14 that still your opinion? 15 A Well, again, water is starting to be 16 driven off at -- 700 to 800 is when it really comes 17 off fairly quickly. So it would still be my 18 testimony that at 500, some water is being driven 19 off, but not as quickly. 20 Q That's almost exactly what you said 21 back then. And just so the record is clear, let me 72 1 read your whole answer from back then. I think it 2 will make it easier. 3 Your answer is, "A Centigrade number 4 would be much lower than a Fahrenheit number, but in 5 terms of Centigrade, the water is starting to be 6 driven off the asbestos fiber starting at around -7 somewhere around 500 degrees Centigrade. And by the 8 time the temperature reaches between 7 and 800 9 degrees Centigrade, the water is driven off rapidly 10 and the asbestos quickly is being transformed into 11 forsterite." 12 Is that still your opinion today? 13 A Yes. 14 Q Okay. Would you burn your hand if you 15 touched a brake that was 500 degrees Centigrade? 16 A Yes. 17 Q Does sanding or hand filing of a brake 18 generate heat anywhere in the range of 500 degrees 19 Centigrade? 20 A I would not think that normal sanding 21 would generate a temperature that high. 73 1 Q For example, an individual like 2 Mr. Shifflett sanding a brake by hand with 3 sandpaper, you would not expect to get anywhere 4 close to 500 degrees Centigrade, would you? 5 A You know, I have never made that 6 measurement, but just asking me, my gut opinion 7 would be that it wouldn't get that hot. 8 Q If the brake was getting up to 500 9 degrees Centigrade from hand sanding, Mr. Shifflett 10 would have been able to tell from the temperature 11 coming through the sandpaper, wouldn't he? 12 A You mean if he is not holding it in a 13 block? 14 Q Right. 15 A Yes. 16 Q And the same questions for filing with 17 a hand file. You wouldn't expect that to create 18 temperatures anywhere close to 500 degrees 19 Centigrade, would you? 20 A Again, while I have never made any 21 measurements, I would think the typical quick filing 74 1 that was described would not generate temperatures 2 that hot. 3 Q How long does it take an average person 4 like Mr. Shifflett to bevel the edge of a single 5 brake shoe with a hand file? 6 A Well, you know, that depends on how 7 much of an edge he wants to put on. I have never 8 beveled the edges of brake linings in all the years 9 I have been doing it. And I found if you put the 10 shoes on correctly, you don't have squealing. So I 11 would think that you wouldn't have to have much of 12 an edge and it would just be the very top of the 13 edge, so it could be done fairly quickly. 14 Q Would it be fair to say Mr. Shifflett 15 was not asked how long it took him? 16 A You know, I don't remember the specific 17 testimony for that. 18 Q I just looked up -- and I will 19 confess -- on Wikipedia how hot 500 degrees Celsius 20 was in Fahrenheit, and it showed me it's about 930 21 degrees Fahrenheit. Is that roughly what your 75 1 understanding is? 2 A Well, again, I would have to do the 3 calculation, but that sounds like it would be right. 4 But, again, I haven't done the calculation. 5 Q In about that order of magnitude, 6 though? 7 A You know, it sounds about right. 8 Q All right. That's good enough for this 9 hand grenade question. 10 Now, with respect to OSHA, under the 11 OSHA fiber counting rules, am I correct that only 12 fibers longer than five microns are counted? 13 A Yes. 14 Q When did that counting convention take 15 effect? 16 A Well, my understanding is it was 17 thought that fibers shorter than five microns in 18 length were not considered to be toxic even before 19 OSHA was created. But the phase contrast microscopy 20 analytical method really can't accurately count 21 fibers less than five microns in length due to 76 1 limitations in the method. 2 So it kind of turns out to be 3 advantageous to have a method that really can't 4 count fibers less than five microns in length to 5 have fibers less than five microns in length not to 6 be considered toxic. 7 Q I am going to have some questions for 8 you about various information in that answer, but my 9 question was different, and I don't think you 10 answered it. And that is when did the five micron 11 in length convention come into effect under OSHA? 12 A Well, I believe it was when they first 13 promulgated their standard in '72 which used the 14 phase contrast method as the method to determine 15 exposure. 16 Q Is there anything in the documentation 17 that adopted that counting convention under the OSHA 18 that states that the purpose for adopting that 19 counting convention is that fibers under five 20 microns do not cause harm? 21 A Now, I don't remember whether it 77 1 specifically says that, but the reality is that's a 2 limitation of the method. 3 Q All right. Now, thank you for that 4 answer. Let's go back to your answer a couple ago. 5 You indicated that -- and this is a paraphrase. So 6 I am not trying to recharacterize your statement. 7 Something about that before OSHA was enacted, there 8 was some belief that short fibers less than five 9 microns couldn't hurt you. What is the basis for 10 that? 11 A You know, I don't remember the specific 12 information where that came from. I believe Stanton 13 was doing some of his work at NIH around that time. 14 I don't remember the exact dates that work was 15 published. 16 Q Is it fair to say that as we sit here 17 today, sir, you cannot identify for me any study or 18 document that I can go and look at that predates 19 OSHA and states that fibers less than five microns 20 are biologically inert? 21 A You know, I can't give you a cite right 78 1 now. Stanton is one of the earlier ones that I'm 2 aware of. But I believe in all the reading I have 3 done, I have come across that conclusion earlier. 4 But as I am sitting here right now, I can't tell you 5 where it was. 6 Q Okay. When you began at Ford in 7 1973 -8 A Yes. 9 Q -- did Ford have any rules or 10 regulations whether its mechanics were permitted to 11 use compressed air when cleaning out brake drums and 12 brake drum -- drum brake assemblies? 13 A I do not remember when Ford started 14 telling mechanics not to use compressed air. 15 Q Have you seen documentation in 16 connection with your consulting work of internal 17 Ford policies regarding exposure to asbestos during 18 brake repair? 19 A You know, I have bought Ford repair 20 manuals, and I know I have seen warning statements 21 about asbestos, but I don't remember the dates of 79 1 those repair manuals. 2 Q Did those manuals actually use the word 3 warning? 4 A You know, I don't remember the exact 5 warning, but it was certainly saying -- talking 6 about avoiding exposure to asbestos. Again, I just 7 don't remember the dates of those manuals. 8 Q Now, if Ford instituted policies 9 internally in the early 1970s that their mechanics 10 were not to use compressed air, is that something 11 you are just not familiar with? 12 A That is correct. I am not aware of 13 exactly when Ford starting telling -- warning about 14 using compressed air. 15 Q And you have never seen any memoranda 16 from Ford Motor Company from the 1970s that 17 discussed that product as you can recall today? 18 A I believe I saw something at a later 19 time talking about some memos suggesting that 20 compressed air not be used, but I don't remember 21 right now the dates of those memos. 80 1 Q All right. Have you ever seen an 2 instructional course called "General Brake Theory 3 and Operation" from 1994 produced by the Ford Motor 4 Company? 5 A I have seen a video talking about 6 replacing brakes from Ford. I don't know if that's 7 the same one you are referring to, but I have seen 8 one. 9 Q Was it a video, the premise of which 10 was a female police officer whose brakes failed, and 11 they were using that as the vehicle for telling the 12 instructional story? 13 A Yes, that is the one. 14 Q Okay. Did you notice the date of that? 15 A You know, I might have at the time. I 16 don't remember right now. 17 Q When did you see that? 18 A I think I saw that maybe about four or 19 five months ago. 20 Q Who showed it to you? 21 A It was sent to me by attorneys from 81 1 Wilson, Elser. 2 Q Do you remember which? 3 A That's the law firm. 4 Q Why did they send it to you? 5 A I guess for my general knowledge. 6 Q Did you have any discussions with them 7 about it before or after you viewed it? 8 A You know, I had some opinions about it, 9 but I don't know if I ever shared it with them. 10 Q Would it be fair to say that your 11 opinions about that video was it was telling people 12 things they didn't need to be afraid of? 13 A You know, my problem is I don't 14 remember exactly what my opinions were. I do 15 remember I disagreed with things that were said in 16 that video. 17 Q Do you recall a scene in the video 18 where a gentleman is looking at some brake parts 19 laid out on a table and he is wearing a 20 dual-cartridge respirator? 21 A You know, I think I remember him using 82 1 a respirator, but I don't remember exactly what it 2 was. 3 Q Do you remember the woman playing the 4 police officer and one of the gentlemen either 5 playing a mechanic or who was a mechanic inspecting 6 a brake and wearing dual-cartridge respirators while 7 they were doing that? 8 A Now, it's possible, but, again, I just 9 don't remember a lot of the specifics. 10 Q What do you think in general your 11 opinions were about that video? 12 A Well, again, I believe they incorrectly 13 assessed the hazards associated with working on 14 brakes. 15 Q So that video, according to what it 16 says, was created in or about 1994? 17 A Are you there? 18 Q Yeah, I am here. That was somebody 19 else's phone causing us problems. 20 Would it be fair to say, 21 Dr. Rabinovitz, that Ford had hired you to give 83 1 asbestos-related testimony in litigation prior to 2 1994? 3 A You know, I don't think they did. 4 Q Would it be fair to say that by 1994, 5 Bendix had hired you to give testimony in 6 asbestos-related cases? 7 A Yes. 8 Q And the information regarding the 9 potential exposures of asbestos to individuals in 10 performing brake repair was sufficiently developed 11 at that time for you to have reached the conclusion 12 that people were not in danger; is that correct? 13 A It would be correct that from the 14 normal, foreseeable replacement of brakes, I don't 15 think there is an increased risk to persons doing 16 that without wearing respiratory protection. 17 Q And the epidemiological evidence and 18 other medical evidence that you rely upon in 19 concluding that no increased risk arises from that 20 work was also largely developed by 1994, correct? 21 A That I am not as sure of whether I had 84 1 as much epidemiological information. I mean, 2 certainly some came after 1994. 3 Q Well, there was enough developed by '94 4 when you were consulting with Bendix that you had 5 concluded there was no increased risk, correct? 6 A Yes. I am just saying that more came 7 later. 8 Q I understand. But, for example, the 9 McDonald study and the Teta study were published 10 before that? 11 A Yes. I mean, there was some 12 information. Right now, I am familiar with a number 13 of studies, and I don't always remember just when 14 they were published. 15 Q Did you ask Ford or its lawyers why it 16 was in 1994 they put out a video that indicates you 17 need to wear a dual-cartridge respirator if you are 18 just looking at brakes on a table? 19 A I did not ask that specific question. 20 Q Did you ask them anything about why it 21 is they created that tape and distributed it amongst 85 1 their dealers? 2 A Well, I don't know, but it's my 3 understanding that sometimes there are parts of Ford 4 that might do things independently, sort of like the 5 left hand doesn't know what the right hand is doing. 6 Q Is it your understanding that Ford no 7 longer subscribes to the factual information 8 contained in that video? 9 A I don't know exactly what Ford's 10 position is. I have my own positions. 11 Q Would you agree as an industrial 12 hygienist that it's important not to warn about 13 things that aren't dangerous? 14 A Yes. My experience is that when 15 working with -- in the occupational setting, that 16 you have a limited opportunity to influence employee 17 behavior, and it should be reserved for providing 18 them with warnings that are important. 19 Q It's the don't cry wolf problem, for 20 lack of a better phrase? 21 A To some extent, yes, that's true. 86 1 Q Or the Chicken Little phenomenon would 2 be a different way to put it? 3 A Yes. 4 Q All right. I saw in one of your prior 5 depositions, sir, a discussion of some testing that 6 you were involved in in Postal Service garages. 7 A Yes. 8 Q Can you describe for me how that 9 discussion came about? 10 A I was working at JRB or SAIC and won a 11 contract with the Eastern United States Postal 12 Service division to conduct air sampling studies in 13 56 vehicle maintenance facilities to determine the 14 mechanics' exposure to asbestos from replacing 15 brakes and also to take area samples around where 16 the mechanic was working to determine what exposures 17 might be experienced by other workers in the garage. 18 And we went into each of those 56 19 facilities once every six months for 18 months, so 20 we went into each one three times, where they would 21 have a mechanic who would be working on brakes for 87 1 the day, and sometimes they were working on cars, 2 sometimes they were working on the Jeeps that 3 deliver mail, and sometimes they were working on 4 trucks. And we took peak samples and time-weighted 5 average samples and personal breathing zone samples 6 and area samples, and then we analyzed them. 7 And wherever we got -- they were 8 initially analyzed by phrase contrast microscopy. 9 And any time the exposure exceeded .1 fibers per cc 10 for an eight-hour time-weighted average, we had them 11 reanalyzed by electron microscopy. 12 And the results of all of the studies 13 were that if you used the electron microscopy 14 results for those PCM results where levels above .1 15 were found, we found no exposures that exceeded .1 16 fibers per cc. 17 Q On a time-weighted average? 18 A On a time-weighted average. 19 Q Did you find exposures that exceeded 20 one fiber per cc on a peak? 21 A You know, I don't remember what the 88 1 highest peak sample was. 2 Q In taking peak samples, did you seek 3 the OSHA timeframe for what constituted a peak 4 sample? 5 A We did this in the early '80s, so it 6 was while the eight-hour time-weighted average would 7 have been 2. So I am assuming at that time the peak 8 would have been 10, 5 or 10, I am not sure which. 9 So I am pretty sure we never exceeded the peak. 10 Q Sure. 11 But there was, at least in the past, 12 two OSHA regulations for exposure, one for a peak of 13 15 minutes, and the other for an eight-hour 14 time-weighted average; is that correct? 15 A Well, the eight-hour time-weighted 16 average is the average, and the 15 minute is the 17 peak. 18 Q Right. 19 Were the peak samples collected during 20 15-minute time periods? 21 A They may have been taken for less. I 89 1 would have to go back. The peak activity was when 2 the nuts were removed, the wheel taken off and then 3 the drum removed. And I don't remember if that 4 always took 15 minutes. 5 And I believe we may have stopped the 6 exposure when that peak activity ended so that we 7 would be truly measuring what the peak exposure was 8 and not continuing to run the sample when there 9 would be lower levels. I just don't remember if it 10 always was 15 minutes. 11 Q When you say the peak exposure involved 12 those three activities, are you saying that those 13 were the three activities that generated the highest 14 level? 15 A It would be that and then if you used 16 compressed air to blow out the residual dust on the 17 backing plate. 18 Q Did the sampling for the peak samples 19 include any blow-out that occurred? 20 A Yes, because I remember doing it once, 21 and I analyzed the filter myself, and the filter was 90 1 quite loaded. It was quite difficult to count. 2 Q And did you all find that there were 3 exposures in removing the lugs from the Postal 4 Service vehicles? 5 A Well, again, we didn't isolate it down 6 to just removing the lugs, but when you use an 7 impact wrench and you remove the nuts, you can see 8 visible dust. 9 Q And the same for when you take the 10 wheel off and remove the drum? 11 A Correct. 12 Q Now, was compressed air used for 13 cleaning out the backing plates and the brake 14 assembly that's attached to the backing plates in 15 all of the Postal Service garages? 16 A No. I think it was only done 17 sparingly, but I happened to be doing one of the 18 studies myself when that was done. 19 Q Am I correct that the Postal Service 20 employees that were performing this work were 21 required to wear respiratory protection? 91 1 A Some of them did and some of them 2 didn't. 3 Q Were they supposed to? 4 A You know, I don't remember whether it 5 was voluntary or not. I just don't remember what 6 their specific requirements were at the time. 7 Q When you all were measuring by PCM, am 8 I correct you used the OSHA counting convention, you 9 counted fibers longer than five microns? 10 A Yes, we certainly only counted fibers 11 longer than five microns. 12 Q And only those with the appropriate 13 aspect ratio to qualify under OSHA? 14 A Correct, the 3 to 1. 15 Q All right. Dr. Rabinovitz, back to the 16 Postal Service, am I correct that there was no arc 17 grinding, riveting, filing or sanding in the studies 18 that you all did at the Post Office? 19 A You know, I think I only did about ten 20 or 12 myself. There was no grinding or filing on 21 the ones I did. I don't remember now whether there 92 1 was in any of the others. 2 Q Okay. At least as we sit here today, 3 you have no recollection of there being any study in 4 the Post Office samples of arc grinding, riveting, 5 filing or sanding of the brake shoes? 6 A I cannot say that that happened during 7 some of these samples. 8 Q Understood. 9 Now, your report contains various 10 statements regarding the length of fibers in brake 11 dust. When you use brake dust in your report, are 12 you discussing wear debris that collects inside the 13 drum? 14 A Wait. I am not sure what you mean by 15 that. 16 Q Well, I am not sure what you mean by 17 brake dust in your report. So at some times, it 18 seems like you are talking about the dust that 19 collects inside the drum from the wearing down of 20 the brake during the braking process. 21 A Yes. I mean, that would be the debris 93 1 that's generated from the braking process. 2 Q In using the term brake dust in your 3 report, are you also referring to the dust created 4 by filing or sanding brakes? 5 A No, I don't think so. 6 Q Are you aware of studies that have 7 characterized the distribution of sizes of the 8 fibers created from the filing or sanding of brakes? 9 A I think there is a study by Frank Weir 10 where he did characterize that. And my recollection 11 was he found that they were mostly short fibers. 12 Q Now, is that the Weir study cited at 13 Reference 10 in your report? 14 A I think that is, yes. 15 Q Do you know who paid for that report? 16 A I don't know at this time. 17 Q Do you know whether Dr. Weir stated in 18 his paper whether it was funded by a company that's 19 defending brake cases? 20 A I don't remember. 21 Q Do you think that if it was, that that 94 1 is something he should have disclosed? 2 A Well, I believe that he should have 3 reported accurately what he did. And the test of 4 determining the validity of the study would be based 5 on what he said he did, not by who funded it. 6 Q All right. The report acknowledges 7 that it was supported in part by a grant from 8 Hennessy Industries. Do you know who Hennessy 9 Industries is and what their connection to brake 10 litigation is? 11 A No, I don't. 12 Q Have you ever performed any studies 13 regarding the dust created from arc grinding 14 machines? 15 A I have not done that. I have done a 16 study on drilling brake pads. 17 Q Was that study published in any 18 publication available to the public? 19 A No. 20 Q Do you have that report? 21 A I have it someplace. 95 1 Q Who was it performed for? 2 A Otis Elevator. 3 Q So just to be clear, we have to go back 4 and add Otis to the list of the companies you 5 performed asbestos-related consulting for, correct? 6 A Correct. 7 Q Any other elevator companies? 8 A No. 9 Q What about roofing materials? 10 A I have actually done a study on a 11 roofing mastic. 12 Q Who did you do that for? 13 A Gibson-Holman. 14 Q What about CertainTeed, did you ever do 15 any work for them? 16 A No. 17 Q I am just looking at my notes here, 18 sir. It will actually speed things up if I do that 19 and take a break from asking you questions. It will 20 take about a minute. 21 A Okay. 96 1 Q Do you have any understanding, sir, 2 about who manufactured the friction material that 3 was used on brakes sold by Ford Motor Company in 4 boxes that said Ford? 5 A I don't know specifically who actually 6 manufactured the brakes. 7 Q Have you ever seen any Ford Motor 8 Company original equipment replacement brakes? 9 A I never bought any myself because they 10 were too expensive. Whether I have seen them on 11 shelves at Ford dealerships, I don't know, but I 12 have never purchased any. 13 Q Sir, in performing a brake job, have 14 you ever wondered whether a car needed its brakes 15 replaced and then checked the brakes to see? 16 A Yes. 17 Q And have you done so in cars that had 18 drum braking? 19 A Well, you don't have to take the 20 brake -- I mean, you just do that with drum brakes. 21 You can look and see if a disc brake needs 97 1 replacing. 2 Q Correct. 3 So on a disc, you can look and see if 4 there is enough of a pad left? 5 A Yes. 6 Q With a drum brake, am I correct that 7 you need to take the drum off the braking assembly 8 in order to see whether there is enough friction 9 material left on the drums, the shoes that -10 A Yeah. I have always had to take the 11 drum off the axle. 12 Q So in order to do that, you have got to 13 take the wheel off first, right? 14 A Sometimes on the rear brake, you can 15 take the drum -- well, actually, the front brake -16 in the older cars where you had replaceable 17 bearings, you could take the drum and the wheel off 18 as an assembly by just sliding out the bearings and 19 then pulling the whole hub off. 20 Q Right. 21 So you would have to take off the wheel 98 1 and the drum, and the wheel and the drum might be 2 attached together that you can take them off at 3 once, or you might have to take them off separately? 4 A Right. 5 Q But in any event, in order to determine 6 whether the drum brake shoes are worn down so much 7 you have to replace them, you have to remove the 8 drum? 9 A That's the only way I know of. 10 Q Right. 11 You can't -- unless you were Superman 12 and had X-ray vision, you wouldn't be able to see 13 through the steel drum to see how much friction 14 material was left? 15 A That's my understanding. 16 Q Have you ever taken the drum off and 17 seen that there was enough friction material left on 18 the shoes that you did not have to replace them? 19 A Yes. 20 Q Would you go buy brakes before pulling 21 the drum and seeing how much friction material was 99 1 left when you were doing that work? 2 A I might or I might not. It depends on, 3 you know, how much time I had and whether I -- I 4 wouldn't want to put the drum back on and then have 5 to take the drum back off if I needed to replace the 6 brakes. 7 Q So if you were pretty sure you needed 8 new brakes, you would go buy a set, and if you 9 weren't, you might wait until you got the drums off 10 to see? 11 A And you might want to take the brakes 12 off first just so when you went to buy the 13 replacement brakes, you could make sure you were 14 getting the right ones. 15 Q Right. You want to take the old shoes 16 in with you and match them up to the shoe the guy 17 gives you? 18 A Right. And then you can get your core 19 deposit back right away. 20 Q Right. You can hold the new shoe and 21 the old shoe together and make sure the holes lined 100 1 up and that the metal parts were the same length? 2 A That's correct. 3 Q All right. And back in the day when 4 people still had core deposits for shoes, you would 5 have to take your old shoes back so they could be 6 remanufactured later; is that right? 7 A Yes. Shoes you have deposits on, pads 8 you don't. 9 Q So am I correct that there were times 10 when you were replacing brakes where you would pull 11 the drum before you had the box for the replacement 12 shoes? 13 A There might have been times I did that. 14 I suspect most of the time I probably got the brakes 15 beforehand. 16 Q But if you pulled the drums to check 17 whether you needed new brakes before you went to buy 18 the new brakes, then you wouldn't have the box with 19 you; is that fair to say? 20 A Well, that's true. 21 Q In Reference 3 in your report -- 101 1 MR. RUCKDESCHEL: Once again, whoever 2 just did something with their phone, it's being 3 disruptive. Please try and avoid doing it again. 4 Call in on a different phone, for example. 5 BY MR. RUCKDESCHEL: 6 Q Dr. Rabinovitz, Reference 3 in your 7 report is to the McDonald study of a friction 8 products plant, correct? 9 A Yes. 10 Q And you cite Reference 3 on page eight 11 of your report in the second to last paragraph under 12 the heading expert opinion, correct? 13 A Yes. 14 Q That sentence that I cited says, 15 "Specifically, chrysotile has been shown to have 16 little, if any, potential for causing mesothelioma 17 in several valid epidemiology studies." And then 18 you cite Footnote 3, correct? 19 A Yes. 20 Q All right. Am I correct there is only 21 one study listed in Footnote 3? 102 1 A There is, although I actually -- when I 2 supplied references, I also included the Liddell 3 study. I only had that one reference, but I do rely 4 on other studies. 5 Q All right. Other than the McDonald 6 study cited there and the Liddell study that you 7 believe is from 1997, what other studies? 8 A I could also put in the -- some of I 9 think it was Darnton and Hodgson and Berman and 10 Crump. And there are others. 11 Q Okay. What publication by Hodgson and 12 Darnton? 13 A You know, I don't remember which one. 14 I believe it's the one where they talk about the 15 potential exposures of 1 to 100 to 500 between the 16 different fiber types. 17 Q All right. And that would be their 18 paper from 2000 titled "The Quantitative Risks of 19 Mesothelioma and Lung Cancer in Relation to 20 Asbestos?" 21 A That sounds familiar. 103 1 Q Have you seen any more recent 2 publications by Hodgson and Darnton on the topic? 3 A You know, I think I have. I just don't 4 remember at this moment. 5 Q Okay. Would you agree that the 6 exposure information considered by Hodgson and 7 Darnton in their 2000 paper is a substantial problem 8 in the validity of their numerical analysis? 9 A Well, you know, again, I would have to 10 reread that to comment on what you are asking. 11 Q You say you are not prepared to comment 12 on it today? 13 A That's correct. 14 Q Fair enough. 15 The same for Liddell and the Berman and 16 Crump? 17 A Well, it has been a while since I have 18 seen some of those articles. And, again, what I am 19 doing is using -- if you lump them all together, 20 there is just it seems like an overwhelming amount 21 of information to suggest the lack of toxicity of 104 1 chrysotile compared to amphiboles in increasing the 2 risk for getting mesothelioma. 3 Q Would you agree, sir, that it is the 4 position of the EPA, NIOSH, OSHA, the Center for 5 Disease Control, IARC, World Health Organization, 6 the United States Public Health Service that 7 chrysotile asbestos is capable of causing 8 mesothelioma in humans? 9 A You know, I haven't reviewed all of the 10 positions for all the agencies recently, but I 11 believe that they all have stated that position. 12 However, I think you would have to look 13 at where they are coming from and how they go about 14 making those recommendations. I don't think that 15 changes the fact of the data of the overwhelming 16 amount of information suggesting that there is 17 significant differences in the potency of different 18 asbestos fibers. 19 Q You would agree, sir, that reviews like 20 Hodgson and Darnton take old midget impinger samples 21 and try and convert them to fiber per cc 105 1 measurements? 2 A I am aware that they have done that. I 3 am aware that there is a lot of variability in doing 4 that, that it's not a precise conversion. 5 Q The conversion, as reported by Dr. Peto 6 at least, essentially can vary by as much as a 7 couple orders of magnitude, depending on which study 8 you are looking at? 9 A I don't know the exact magnitude, but I 10 know that there is a lot of variation. I agree with 11 that. 12 Q In fact, Hodgson and Darnton used the 13 term guesstimates with respect to a lot of the 14 exposure information in their paper, don't they? 15 A Well, you know, I don't remember them 16 specifically using that word, but when you are using 17 data from that time period, you know, the data 18 collected back then, the amount, the methodology, 19 it's different than what we do today. 20 Q On page nine of your report, you 21 indicate that in the heading Asbestos Emissions 106 1 During Brake Replacement, the primary exposure to 2 dust occurred removing the drum, removing the 3 springs and cleaning operations. Do you see that? 4 A Yes. 5 Q Do you agree that for an individual 6 like Mr. Shifflett, there is also opportunities for 7 exposure to airborne asbestos from the filing and 8 sanding of brakes as he described? 9 A I would say there is a potential for 10 some exposure, but I think he really didn't describe 11 grinding and light sandpapering and some initial 12 beveling with a file. I do not think that would be 13 a significant emission. 14 Q Do you have a reference for me for 15 anywhere in his deposition where he used the phrase 16 "light sanding"? 17 A Well, there is no reason not to do 18 light sanding. You are just roughing the edge or 19 removing any grease if it happened to get on there. 20 I mean, I don't recall him describing saying that 21 the linings were too thick and that he had to remove 107 1 a lot of lining. 2 Q But light sanding is your phrase, not 3 his, right? 4 A You know, that's possible, but I would 5 think that's what he would have done. 6 Q What I am asking you, sir, is a very 7 narrow question. You can't tell me in 8 Mr. Shifflett's testimony where he used the phrase 9 light sanding; is that correct? 10 A I would have to go back, but at this 11 moment, I can't remember him using that specific 12 term. 13 Q Now, with respect to the studies of 14 exposure that you have considered that were 15 conducted by NIOSH as referenced on page 11 of your 16 report at References 15 and 16 -17 A Well, the references of 15 and 16 are 18 not NIOSH studies. I didn't actually include the 19 specific NIOSH studies. I just indicated that such 20 studies do exist. 21 Q Okay. And that was going to be the 108 1 question. And I guess that's what it says. The 2 results are consistent with other studies, including 3 surveys conducted by NIOSH where mechanics' 4 exposures to asbestos were evaluated while replacing 5 brakes, and then you cite Cheng and Rodelsperger? 6 A Yes. 7 Q Which of the NIOSH studies examined 8 individuals that filed or sanded brakes? 9 A You know, I would have to go back and 10 look. I do not know right now if they included 11 that. 12 Q Okay. So I can't ask you questions 13 about that today? 14 A That's correct. I have some of those 15 studies, but I haven't looked at them recently. 16 Q All right. And would you agree that 17 many of the NIOSH studies were looking at garages to 18 determine how effective dust control measures were? 19 A Again, I would have to go back and read 20 it to determine what procedures were being used when 21 they took their samples. 109 1 Q So as far as today goes, those aren't 2 questions that I can ask you about today? 3 A I do not recall the specifics of what 4 happened on any given survey where NIOSH was taking 5 air samples. 6 Q Did they file and sand brakes in either 7 the Cheng or Rodelsperger studies cited at 15 and 8 16? 9 A You know, I would have to go back and 10 review it. I haven't read those in a little while. 11 Q Do you have them with you today? 12 A I have them in the computer. I brought 13 a computer, and I could probably bring them up. Did 14 you want me to do that? 15 Q I am taking a look at it here to see, 16 sir. 17 What is the current eight-hour 18 time-weighted average allowed by the OSHA standards? 19 A .1 fibers per cc. 20 Q Now, if an individual had an eight-hour 21 time-weighted average of .13, that would be over the 110 1 current OSHA standard? 2 A Yes. 3 Q Does the current OSHA standard purport 4 to protect from cancer or simply to reduce the risk? 5 A My understanding is that OSHA is still 6 using some outdated risk assessments, and they have 7 concluded that adherence to their study reduces the 8 risk but does not eliminate it. 9 Q Doctor, they have calculated that there 10 will be several cancers per hundred thousand workers 11 exposed at that level? 12 A I think it's three and a half per 13 hundred, but that's based on an outdated study, in 14 my opinion. 15 Q Have you ever written OSHA and 16 suggested that they redo it? 17 A I have talked to some OSHA people, 18 including when I was a -- let's see. When I was at 19 SAIC, I talked to some of them when they were 20 planning on doing their rule-making for the 1986 21 standard. I don't remember the exact conversation 111 1 or whether I brought it up then or not. 2 Q Have you ever written them since then? 3 It's been decades since 1986. Have you ever thought 4 that maybe it would be a good idea for you to write 5 something to them saying you better update your risk 6 assessment? 7 A No, I have not. 8 Q Have you ever published anything about 9 it? 10 A No. 11 Q You are not an epidemiologist, are you, 12 sir? 13 A No. 14 Q You have never designed and conducted 15 an epidemiological study? 16 A I did help design an epidemiological 17 study. 18 Q When and what? 19 A It was a study that FMC was doing at a 20 phosphorous plant in Idaho. And I was assisting in 21 attempting to -- how they would evaluate exposures 112 1 of the cohort. 2 Q FMC is Food Machinery Corporation? 3 A Yes. 4 Q And why was it important to evaluate 5 the exposures of the cohort? 6 A Because in an epidemiology study, you 7 would like to look at incidence of disease as 8 compared to exposure or exposure dose. 9 Q Okay. Why? 10 A Because you would like to see if there 11 is an increased incidence with increasing exposures. 12 That provides some information to suggest if you are 13 on the right track of correlating an adverse effect 14 associated with exposure to a given material. 15 Q What was the general design of the 16 study that FMC was considering doing? Was it a 17 case-control study, was it a cohort study? 18 A You know, I don't remember at this 19 time. 20 Q What year or decade did that work 21 occur? 113 1 A I believe that was in the 1990s. 2 Q And do you know whether that study was, 3 in fact, performed? 4 A I don't know. 5 Q And I take it, then, you don't know 6 whether the results of the study were ever made 7 available? 8 A I do not know. 9 Q Would you agree that if you are 10 performing an epidemiological study to evaluate 11 whether a particular exposure can cause a particular 12 disease, you would want to know whether the people 13 were actually exposed to the substance? 14 A Yes, you would want to know that. 15 MR. RUCKDESCHEL: Sir, I don't have any 16 further questions. The lawyer for the Rehrigs may 17 have some questions for you. And I may have a few 18 follow-up. But at this point, I will pass the 19 witness. 20 EXAMINATION 21 BY MR. OLIVER: 114 1 Q Good afternoon, Doctor. My name is 2 Kevin Oliver. I am here for the Rehrig family. 3 It would not be necessary for me to 4 re-ask you the questions that Mr. Ruckdeschel asked 5 you about your background and your previous 6 testifying history, would it? 7 A I certainly would be happy with you not 8 asking those questions. 9 Q Good. I wasn't planning to. 10 I am going to just focus on some 11 specific issues. You have reviewed this case and 12 have formulated opinions only for Ford in the Rehrig 13 case; is that true? 14 A Yes. 15 Q You have no opinions to express today 16 regarding any other potential exposures that did or 17 did not increase Mr. Rehrig's risk for disease; is 18 that correct? 19 A Not really, no. 20 Q Tell me what is incorrect about what I 21 said. 115 1 A Well, I mean, I have some opinions 2 about certain products and in general whether they 3 are capable of causing an increased risk of disease. 4 Q As to friction materials found in brake 5 linings and clutches, your opinion would be those 6 are not, in your opinion, capable of generating 7 exposures that increase risk of disease; is that 8 correct? 9 A As the work involving those products, 10 if it's done in a foreseeable manner, that is 11 correct, I don't see the potential for exposures 12 that would increase the risk of getting an 13 asbestos-related disease. 14 Q And that is an opinion that you held 15 for some time prior to becoming involved in the 16 Rehrig case, correct? 17 A That's true. 18 Q Are all the materials that you reviewed 19 in connection with the Rehrig case listed in your 20 report, which is one of the reports that are marked 21 as Exhibit 5, collectively? 116 1 A Yes. 2 Q Can you think of any materials that you 3 reviewed in connection with the Rehrig case that are 4 not listed in Exhibit 5? 5 A No. 6 Q The same situation that you described 7 with regard to medical records in connection with 8 the Shifflett case whereby you were provided with 9 some Internet address to go to to review medical 10 records, but you did not download them, did you use 11 that same procedure to review medical records in the 12 Rehrig case? 13 A Yes. In fact, it was set up that when 14 I logged in, they were both available. 15 Q Okay. Were they separated in some way 16 so that it was clear when you stopped looking at 17 Shifflett and began looking at Rehrig, or vice 18 versa? 19 A Yes. You logged on to each name or, 20 you know, highlighted each name to get the 21 materials. 117 1 Q I see. 2 Were you first contacted in the Rehrig 3 case at the same time that you were first contacted 4 in the Shifflett case? 5 A Yes. 6 Q In other words, the assignment for 7 these two cases came together and in the same 8 format? 9 A Yes. 10 Q Can you get us any closer than you have 11 previously been able to regarding the date on which 12 that assignment first came in? 13 A No. I would have to go back to the 14 E-mails to see when the first one was. 15 Q Once you heard that Mr. Rehrig claimed 16 exposure to asbestos as a result of work performed 17 from working with brake linings of vehicles, did you 18 know everything you needed to know in order to 19 conclude that your opinions were going to be that 20 work did not increase his risk? 21 A You are saying that after I read his 118 1 depositions so that I would have an understanding of 2 what he did, did I have enough information to draw 3 my conclusions? 4 Q Well, I will get to that in a minute. 5 But first of all, when you heard that he had done 6 brake mechanic work and that's where he was alleging 7 his exposure from Ford, did that tell you everything 8 you needed to know in order to know that you were 9 likely going to conclude that his work did not 10 increase his risk? 11 A Well, all I had to do was to find out 12 that he did it in a foreseeable manner and didn't do 13 anything that I wouldn't expect and there were no 14 unusual conditions, and then yes, I would have at 15 that point thought it was likely that I would find 16 he would not have been exposed to a harmful dose of 17 asbestos. 18 Q And when you reviewed Mr. Rehrig's 19 materials, you found that the work was done in what 20 you considered to be a foreseeable manner, correct? 21 A Not only that, but he would have done a 119 1 limited amount of work involving actual 2 Ford-supplied products, far less than a full-time 3 mechanic. 4 Q I appreciate that, but let me ask my 5 question again. When you reviewed the Rehrig 6 deposition materials, you found that the work he 7 described was done in what you considered to be a 8 reasonably foreseeable way? 9 A He talked about some sanding. And I 10 don't remember, it might have been some -- I would 11 have to look and see whether he talked about filing 12 also. 13 While I do know many mechanics have 14 said they do that, just from my own experience, I 15 find that that really isn't necessary. 16 Q By saying it's not necessary, you are 17 not saying that it was not foreseeable, are you? 18 A I am saying that I know that some 19 mechanics do that. I am just saying I don't really 20 think it's necessary. 21 Q Okay. Are you including blowing-out 120 1 activities in what you consider to be normally 2 foreseeable? 3 A Well, I know mechanics, at least during 4 a certain time period, did use compressed air, but I 5 don't believe he used compressed air. 6 Q All right. Did you include sweeping up 7 after your work within the realm of what you would 8 believe would be normally foreseeable work? 9 A Yes, there is some sweeping that's 10 normally done afterwards when it's done inside. And 11 I believe he may have been in a garage earlier when 12 he worked at somebody else's garage, but I don't 13 think -- I think he may have done it outside later 14 in life. 15 Q All right. Did I understand your 16 testimony correctly that since the time you have 17 been on your own, so to speak, you have had 18 somewhere on the realm of eight to ten cases for 19 Ford? 20 A Around that. I don't know the exact 21 number. 121 1 Q And would it be fair to say that in 2 each of those eight to ten cases, the persons 3 involved in those cases were claiming to have an 4 asbestos disease as a result of exposure to 5 asbestos-containing products that they believed to 6 be supplied by Ford? 7 A I think that's correct. 8 Q And in each of those cases, you 9 concluded that their work with those products did 10 not increase their risk? 11 A You know, it might be that one of them 12 settled so fast that I don't know if I looked at the 13 materials or much of it, but in general, that would 14 be true. 15 Q Okay. The discussions that you told 16 Mr. Ruckdeschel about earlier -- was there ever an 17 occasion when you discussed the Rehrig case in a 18 separate conversation than those you described 19 earlier with regard to the Shifflett case? 20 A No. I think each time I had a 21 discussion, it would have included both. 122 1 Q I would assume you have not prepared 2 any demonstrative materials or PowerPoint that you 3 intend to use at trial in the Rehrig case? 4 A I have not. 5 Q Okay. It appeared to me in my brief 6 review that you cited the same reference materials 7 in your footnotes in your report in the Rehrig 8 report as those that you had cited in the Shifflett 9 report. 10 A I think that's correct. 11 Q Is there any reference that you 12 reviewed in Rehrig that you did not also review in 13 Shifflett? 14 A No. Essentially, it was, you know, a 15 similar analysis. I believe that Mr. Shifflett may 16 have replaced more brakes than Mr. Rehrig, but 17 Mr. Shifflett bought cars from salvage facilities 18 and did not use OEM replacement brakes. So, in 19 fact, as far as Ford-supplied equipment was 20 concerned for both of them, there was very, very few 21 brake jobs done by either one. 123 1 Q Which report did you write first? Do 2 you know? 3 A You know, I would be guessing. I am 4 thinking Rehrig, but I am not a hundred percent 5 sure. 6 Q Well, let me tell you why I am asking. 7 It appears to me that the discussion -- once you 8 leave the sort of case-specific analysis and you 9 discussed the background information -- let me try 10 to be sort of specific. 11 Once you begin the discussion of the 12 section, for example, that you have titled analysis, 13 it appears to me that the analysis section of the 14 reports is virtually verbatim. Am I right about 15 that? 16 A That might be the case. And, again, 17 that is because when you talk about -- they were 18 both not career mechanics, limited amount of Ford 19 products and actually talked about replacing brakes 20 doing some similar things. 21 Q Okay. I know that the conclusion 124 1 section is different, the initial background section 2 is different, but there is a chunk in the middle 3 that appears to be verbatim in both reports. 4 A And that would be because, there again, 5 the number and methodology was very similar, so the 6 same analysis would apply to both. 7 Q My question is did you create that 8 verbatim section in your reports that you used in 9 Shifflett and Rehrig for either the Shifflett or 10 Rehrig reports, or did you have that text already on 11 your computer from some other source? 12 A I would have had some of that text 13 already available. And I take that text and then I 14 go through it and modify it to fit the specific 15 circumstances. 16 Q So do you have a template that you 17 start with or a form that you start with for your 18 reports that involve brake mechanic or friction 19 work? 20 A I have some older reports, and 21 sometimes I will go through and take a part of this 125 1 and a part of that and fit it together and then go 2 over it and then make it specific for the situation 3 that I am dealing with. So it ends up being 4 different, but it starts out with some parts from 5 other reports. 6 Q All right. And so you just don't know 7 whether you went through that process for the first 8 time with the Shifflett report or for the first time 9 with the Rehrig report? 10 A It's true I can't be sure, but it is 11 likely that whatever one I did first, I would have 12 thought to myself, gee, this is close enough that 13 this will serve as the start for the next one, and 14 then I will read through it and change it as is 15 necessary. 16 Q Okay. What was the date of your report 17 in the Shifflett case? 18 A I see they are both November 9th. 19 Q All right. And you said it would just 20 be guessing for you to say whether you prepared the 21 Shifflett report first or the Rehrig report first? 126 1 A That's correct. 2 MR. KRAUSE: Asked and answered twice. 3 A Again, I said I am not sure. It's 4 possible it was Rehrig, but, again, I am just not 5 sure. 6 Q Do you have any opinions regarding 7 Robert Rehrig's exposures relating to Ford products 8 that were not summarized in your November 9 report? 9 A I mean, I believe I put my opinions 10 regarding Ford -- I mean, I have, I believe, a fair 11 amount of knowledge about asbestos exposures from 12 vehicles, and I have some knowledge about Ford, and 13 that information was used in writing this report and 14 putting the conclusions and opinions. 15 But to say that it represents 16 everything I know about brakes and Fords, no, that 17 would not be true. There are probably other pieces 18 of information I know. I can't just tell you 19 everything I know about asbestos and exposures 20 associated with brakes. 21 Q All right. Do you believe your 127 1 November 9 report represents a fair summary of the 2 opinions you have to express regarding Robert Rehrig 3 and his allegations of exposure to Ford products? 4 A I think it represents the major points 5 that would be necessary in demonstrating a lack of 6 exposure to a dose of asbestos that could cause him 7 harm from Ford products. But, again, it's not 8 expressing everything I know about asbestos, brakes 9 and Ford products. 10 MR. OLIVER: Okay. Thank you. That's 11 all the questions I have for you this morning. 12 RE-EXAMINATION 13 BY MR. RUCKDESCHEL: 14 Q Dr. Rabinovitz, this is John 15 Ruckdeschel again. I have a few follow-up questions 16 for you, a couple that relate to questions that were 17 just asked and a couple that looking over my notes I 18 wanted to touch base with you on. 19 You talked about Ford-supplied 20 materials a little bit with counsel for the Rehrigs. 21 Would you agree that when you go to a car 128 1 dealership, Ford supplies you with a car? 2 A You mean when you are buying a brand 3 new car? 4 Q Yeah. 5 A If you are buying a brand new Ford at a 6 Ford dealership, I think that what I just said is 7 yes, you are buying a new Ford product. 8 Q Okay. And the car comes with a braking 9 system, right? 10 A Unless you want to drive into a tree, 11 yeah. 12 Q It's kind of integral to the car? You 13 can't safely operate it unless it's got brakes, 14 right? 15 A I believe that's true. 16 Q Okay. And the braking system has a 17 number of components to it, would you agree? 18 A Yes. 19 Q There is a backing plate, a cylinder, 20 some springs. If we are talking about a drum 21 braking system, there is a drum, right? 129 1 A Yes. 2 Q What else? 3 A There is a master cylinder, there is 4 lines, there is brake fluid, there is a pedal, there 5 is brake lights, circuit breakers. Well, fuses. 6 Q There is brake shoes as well, right? 7 A And brake shoes, yes. 8 Q And is it fair to say that the car is 9 designed to outlast the original pair of shoes? 10 A And depending on how you drive, most 11 people will have to replace their brakes before they 12 would consider the car ready for the junkyard. 13 Q Sure. I mean, I guess if you are the 14 kind of person that trades in their new car every 15 two years or three years, you might make it through 16 a set of brakes, make it through that period with an 17 original set of brakes if you didn't drive much or 18 didn't drive fast, right? 19 A That's possible. 20 Q The useful life of the car is designed 21 to be longer than the useful life of the first set 130 1 of brake shoes, would you agree? 2 A I would agree with that. 3 Q All right. And the braking system has 4 a number of components that over the useful life of 5 the car can expect a need to be replaced or at least 6 repaired, would you agree? 7 A I mean, sometimes yes and sometimes no. 8 I mean, are you talking about like wheel cylinders 9 or calipers? Are you talking about that? 10 Q Sure. 11 For example, brake fluid, in the useful 12 life of a car, it's probably going to have to be 13 replaced or at least supplemented at some point? 14 A Brake fluid, yes. 15 Q Okay. And at least in the past, 16 cylinders often would develop a leak in a drum 17 braking system and need to be either rebuilt or 18 later on just swapped out for a new one, would you 19 agree? 20 A Yes. 21 Q All right. And, again, these are all 131 1 things that are replaced in the ordinary life of the 2 car? 3 A Yes. 4 Q Okay. The same for the brake shoes, 5 the brake shoes get replaced during the ordinary 6 life of the car? You don't have to get a new car 7 every time the brake shoes wear out, right? 8 A Right. 9 Q Do you have any expertise, sir, 10 regarding the design of the braking system and the 11 friction material used in the braking system? 12 A I do not consider myself an engineer 13 who has expertise in how you design -- for example, 14 I would not be an expert to know how much surface 15 area you need, no. I don't consider myself an 16 expert in that area. 17 Q Have you reviewed the "Don't Blow It" 18 video that came out from the EPA around the time of 19 the original "Gold Book" pamphlet? 20 A I don't know if I have seen a video on 21 that. I may not have. 132 1 Q Did you see Mr. Shifflett's testimony 2 regarding blowing dust off the brake assembly using 3 his own breath? 4 A Yes. 5 Q In blowing out a brake drum assembly 6 with compressed air in a commercial garage, do you 7 have any idea what the pounds per square inch of the 8 compressed air hose is? 9 A I think OSHA usually wants to see like 10 30 pounds of pressure, but I know they often go up 11 to 90 pounds of pressure. 12 Q Okay. And you observed the blowing out 13 of brake assemblies with compressed air before in 14 your professional life? 15 A Again, I took air samples while someone 16 was doing it. 17 Q Understood. 18 How long did it take per wheel to get 19 the brake assembly cleaned out with compressed air, 20 approximately? 21 A About a minute, approximately. 133 1 Q There are a lot of nooks and crannies 2 in there? 3 A There are some. 4 Q Do you have any idea, sir, how much 5 asbestos Mr. Shifflett breathed in when he was 6 blowing the dust off of the brake assemblies using 7 his lung power? 8 A Again, I believe it would be very 9 little because, number one, you don't get much air 10 using your mouth. That just isn't a very efficient 11 mechanism for removing debris. And, again, I 12 measured exposure using compressed air, and it was 13 still low. 14 Q You would agree it would take a number 15 of breaths to clean out a brake assembly if you were 16 blowing with your lungs, wouldn't you? 17 A I would just think it would be a very 18 inefficient way to do it. 19 Q Okay. And you would agree, sir, it 20 would take a number of breaths to do that? 21 A I would think you could use a number of 134 1 breaths. 2 Q All right. And after you did the first 3 breath, when you took in the next big breath so you 4 could get a good blow on the brake assembly, how 5 many asbestos fibers would Mr. Shifflett have 6 inhaled when he took that big breath in? 7 A Well, again, after he blew, he 8 certainly may have moved his head back. And it's 9 certainly possible that when he inhaled, again, 10 because of the fact that the velocity or -- the 11 amount of air exhaled and the velocity wouldn't have 12 been that high, it's certainly possible that he 13 breathed very little asbestos, especially when you 14 know that there is so little asbestos in the dust to 15 begin with. So it's certainly possible he breathed 16 very little, if any. 17 Q What measurements have you seen of 18 anybody testing that? 19 A Again, I have done the studies where 20 compressed air was used, and the exposures were not 21 high. 135 1 Q What measurements, sir, have you seen 2 on how much asbestos dust is released when placing 3 your face close enough to a brake assembly to blow 4 dust off with your own breath and how much dust is 5 released into the breathing zone of the individual? 6 A I have never seen a study where a 7 measurement was taken where someone was actually 8 attempting to remove debris by blowing. But from 9 the analysis I just provided, I believe that such a 10 situation would not result in a harmful level of 11 exposure. 12 Q Now, sir, when drum brake systems were 13 using asbestos-containing brake shoes, was there any 14 way to take the drum off without releasing some 15 asbestos into the air? 16 A Well, again, I don't know of any way to 17 really -- I mean, there are containment systems that 18 were made to capture any dust emitted. But, again, 19 if you aren't using those and you are removing a 20 drum, some dust will get in the air. 21 But it's important to remember just how 136 1 little asbestos, especially asbestos -- free 2 asbestos fibers where the fibers are greater than 3 five microns in length, how little is present in 4 that dust. 5 Q And all of the historical measurements 6 by phase contrast microscopy done under the OSHA 7 counting rules, the only fibers that are getting 8 counted are longer than five microns, correct? 9 A Yes. 10 MR. RUCKDESCHEL: Okay. I don't have 11 any more questions for you. 12 MR. KRAUSE: Anything further? 13 MR. OLIVER: I am done, too. 14 (Deposition concluded at 4:53 p.m.) 15 16 17 18 19 20 21 137 1 State of Maryland 2 Harford County 3 I, Denise M. Thomas, a Notary Public of the 4 State of Maryland, Harford County, do hereby 5 certify that the within-named witness personally 6 appeared before me at the time and place herein set 7 out, and after having been first duly sworn by me, 8 according to law, was examined by counsel. 9 I further certify that the examination was 10 recorded stenographically by me and this transcript 11 is a true record of the proceedings. 12 I further certify that I am not of counsel 13 to any of the parties, nor an employee of counsel, 14 nor related to any of the parties, nor in any way 15 interested in the outcome of the action. 16 As witness my hand and seal this 9th day 17 December, 2009. 18 19 Denise M. Thomas 20 My Commission Expires 7-21-10. 21 138 1 INDEX 2 Deposition of Sheldon H. Rabinovitz, Ph.D., C.I.H. 3 December 7, 2009 4 5 EXAMINATION BY: PAGE 6 Mr. Ruckdeschel 5, 128 7 Mr. Oliver 114 8 9 EXHIBIT DESCRIPTION PAGE 10 1 List of testimony 6 11 2 Notices of Deposition 7 12 3 Curriculum vitae 8 13 4 Shifflett report 17 14 5 Rehrig report 17 15 16 17 18 19 20 21 139 1 INSTRUCTIONS TO THE WITNESS FOR REVIEWING TRANSCRIPT 2 Read your deposition over carefully. It 3 is your right to read your deposition and make 4 changes in form or substance. You should mark any 5 change in the appropriate columns on the errata 6 sheet. Changes made in your transcript may be 7 questioned by counsel at a later date. 8 Please note any change in form or 9 substance on the following errata sheet. Enter the 10 relevant page number and the line number. Also 11 enter the incorrect word and your correction. 12 Then sign and date your deposition at the 13 end of the errata sheet in the space provided. You 14 are signing it subject to the changes you have made 15 in the errata sheet, which will be attached to the 16 deposition before filing. The errata sheet needs to 17 be returned to Evans Reporting Service in 30 days 18 from receipt. 19 EVANS REPORTING SERVICE 7 North Calvert Street 20 Suite 705 Baltimore, Maryland 21202 21 (410) 727-7100 140 1 ERRATA AND SIGNATURE SHEET 2 I, SHELDON H. RABINOVITZ, Ph.D., 3 C.I.H., have read the aforegoing and verify the same 4 to be stenographically accurate with the exception 5 of the following changes (if any): 6 Page Line Reads Should Read 7 ____________________________________________________ 8 ____________________________________________________ 9 ____________________________________________________ 10 ____________________________________________________ 11 ____________________________________________________ 12 ____________________________________________________ 13 ____________________________________________________ 14 ____________________________________________________ 15 ____________________________________________________ 16 ____________________________________________________ 17 ____________________________________________________ 18 ( ) I have no corrections. 19 20 ___________________________ 21 Signature of Deponent 141