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MABEL RICHIE, Plaintiff-Appellee, vs OWENS-CORNING FIBERGLAS CORP., Defendant-Appellant. 94CA 929 88CV1821-5 VOLUME XI PgS. 1 - 219 Reporter's Transcript, 11-30-92 Dawn R. McWilliams, CSR h 1 1 DISTRICT COURT BOULDER COUNTY 2 COLORADO CASE NO. 88CV1821 3 4 5 6 MABLE RICHIE, 7 Plaintiff, 8 v. 9 OWENS CORNING FIBERGLAS, 10 Defendant. 11 12 13 The trial in this matter commenced on Monday, November 16, 1992 through Friday, December 4, 1992 before 14 the HONORABLE MORRIS W. SANDSTEAD, JR., Judge of the District Court, and a jury of six and two alternates. 15 The following contains the complete eighth day of 16 the trial on November 30, 1992. .Jr'o Uqt0,inthf 17 FOR THE PLAINTIFF: CONARD METCALF Ta 7r f APppA, and ,ODz 18 MICHAEL PATRICK QQt . 'Al^O 1435 Arapahoe Avenue 3 1994 19 Boulder, CO 80302 20 21 FOR THE DEFENDANT: -<(Srk 'On HARMON GRAVES APO<'ea/s and 22 MARK SPITALNIK Suite 1001, Ptarmigan Place 23 3773 Cherry Creek North Drive Denver, CO 80209 24 25 Clerk, Court of Appeals ORIGINAL 2 1 INDEX 2 3 WITNESSES FOR THE DEFENDANT: PAGE 4 DR. RUSSELL SHERWIN 5 Direct Examination by Mr. Graves 3 Cross-Examination by Mr. Metcalf 69 6 Redirect Examination by Mr. Graves 137 7 DR. GORDON BRAGG 8 Direct Examination by Mr. Spitalnik 141 Cross-Examination by Mr. Metcalf 180 9 Redirect Examination by Mr. Spitalnik 202 Recross-Examination by Mr. Metcalf 206 10 n. EXHIBITS FOR THE DEFENDANT: OFFERED ADMITTED 12 457a - Cirriculum Vitae 457G - Cirriculum Vitae 13 470 - Photo 471 - Photo 14 472 - Photo 473 - Photo 15 149 19 41 43 49 54 149 19 41 43 49 54 16 REPORTER'S CERTIFICATE 219 17 18 19 20 21 22 23 24 ?5 3 -. 1 PROCEEDINGS 2 3 THE COURT: Are we ready for the jury, 4 Mr. Metcalf? 5 MR. METCALF: Yes, Your Honor. 6 MR. GRAVES: Sure, Your Honor. 7 THE COURT: Mr. Graves, your next witness. 8 MR. GRAVES: Your Honor, I would like to call 9 Dr. Russell Sherwin forward to be sworn. 10 DR. RUSSELL SHERWIN. 11 called as a witness on behalf of the Defendant, having been 12 first duly sworn, was examined and testified as follows: 13 THE COURT: You may be seated. Please state your 14 name and spell it. 15 THE WITNESS: Yes, Russell Sherwin. 16 DIRECT EXAMINATION 17 BY MR. GRAVES: 18 Q Good morning, Dr. Sherwin. What is your 19 profession, sir? 20 A Physician, I guess. 21 Q Do you have a specialty? 22 A Yes, pathologist. 23 Q What does a pathologist do, sir? 24 A We look at -- I look at tissue. This means I 25 have to a have a microscope that is a light microscope. 4 1 electron microscope with special stains. So if it's 2 anything to do with biopsies or autopsy material, I look at 3 it. 4 Q Doctor, I wonder if you'd tell the ladies and 5 gentlemen of the jury something about your education. Take 6 us through medical school and subsequently, if you would, 7 please. 8 A Well very briefly, I undergraduated -- well, 9 medical school? 10 Q That's fine. Start with -- 11 A Dartmouth and Boston University, residency in 12 pathology in New York. Well, actually I started in -- no. 13 I did start in New York, that's right. No, I beg your 14 pardon, absent-minded, Georgetown. My first year residency 15 was at Georgetown, then to New York, then to -- well, I 16 finished my training actually in the US Army. I went 17 overseas and was part of a general hospital. They gave me 18 credit for my last year, I believe. 19 Q From what medical school did you graduate, sir? 20 A Boston University. 21 Q In what year? 22 A 1948. 23 Q What did you take your residency in? 24 A Pathology. 25 Q And are you board certified? 5 1 A Yes, I am. 2 Q What does that mean? 3 A After you've completed your training; medical 4 school, internship, residency, then you take an examination 5 that if you pass the examination which is an oral and 6 written for two or three days, I can't remember what, but 7 if you take the exam and pass, then you're -- they'll 8 certify you as a properly trained pathologist. 9 Q Are you licensed today practice your profession. 10 sir? 11 A I'm sorry? I missed that. 12 Q Are you licensed to practice? 13 A Yes, I am. 14 Q In what states? 15 A Well, California of course. But I started out in 16 New York and then Massachusetts, also New Hampshire. 17 Q What facility are you associated with at the 18 present time, Dr. Sherwin? 19 A University of Southern California. 20 Q In what department? 21 A Department of pathology. 22 Q Dr. Sherwin, I wonder if you'd explain some of -- 23 some of your academic appointments over the years either as 24 an instructor, professor, and the like. 25 A Well, I did the usual training program climbing 6 1 the ladder. You start out as an assistant and go up to 2 instructor, assistant professor, associate professor, and 3 finally you become professor, or you hope to. And I did 4 that in two places, well three actually. I started at 5 Boston University, I had a joint appointment in Harvard 6 Medical School, and then I came to the University of 7 Southern California as an assistant professor and then I 8 climbed the ranges to associate, then finally full 9 professor. 10 Q And what teaching responsibilities did you 11 actually undertake, what subjects, and to whom did you 12 teach? 13 A Well, my basic field is pathology so my teaching 14 was basically restricted to pathology. And I tended to 15 focus on cancer and lung pathology. 16 Q Doctor, I'd like to focus for a moment on your 17 professional administrative type appointments. Can you 18 outline some of us those for us, please. 19 A Well, which ones would you like? 20 Q All right. Let me start with American Board of 21 Pathology. Were you an examiner? 22 A At one time, yes. 23 Q What did that involve? 24 A Well, turning the tables around, you give exams. 25 Q What examinations? 7 1 A Well, people who were going to take their board 2 examinations. 3 Q In pathology? 4 A In pathology, yes. 5 Q How about the California State Department of 6 Health Services? What role do you play there? 7 A Well, there I am a -- unlike Boulder, we have a 8 lot of smog. And in Los Angeles -- I guess Denver has a 9 fair amount. And for that reason and my interest in lung 10 disease I was put on the advisory committee for the state 11 of California. It's now called the California 12 Environmental Protection Agency. And I'm on their 13 committee for air quality. 14 Q I want to explore some of your roles as a 15 consultant, Dr. Sherwin, as well on a local level about -- 16 how about the American Lung Association? 17 A Well, I have not been too active in those. I 18 have been a member of the Cancer Society, Lung Association, 19 I even made a movie for the American Cancer Society at one 20 time. But the most important local one is what is called 21 South Coast Air Quality Management District. 22 Q What does that do? 23 A That is in charge of regulating air quality 24 throughout the whole south coast based in greater Los 25 Angeles and other areas. And I'm the chairman of their 8 1 health advisory committee. There's a health science 2 committee that has to do with evaluating the problems that 3 have to do with the pollutants, regulation, and so forth. 4 So I do serve as the chairman because it's part of what is 5 called an advisory council. So I'm on a subject committee 6 of the advisory council. 7 Q Let's step up for a moment. On the national 8 level what involvement have you had with the World Health 9 Organization? 10 A Well, way back in 1967 the World Health 11 Organization founded a reference panel. It's called the 12 United States Mesothelioma Reference Panel. And they had a 13 concern at the time that the diagnosis of mesothelioma may 14 be increasing because of changes in practice. In other 15 words, the incidents may not be real. Doctors may be 16 making the diagnoses without proper scientific foundation. 17 So this organization got together a group of 18 panelists, specialists in the area, and I was one of them 19 because of my interests in lung cancer I guess. And our 20 specific job was to look at cancer diagnoses that were made 21 by different pathologists, some of them were diagnoses they 22 themselves questioned, could it be, and some were diagnoses 23 that were made. And we were asked to give our opinion; in 24 other words, would this panel agree that these were 25 mesotheliomas. 9 1 Q And these were referred by other physicians? 2 A Yes. This -- throughout the country this was -- 3 the central office was actually in New York and New Jersey. 4 And members of the panel came from all over the country. 5 Q How long did you serve on this panel, 6 Dr. Sherwin? 7 A 1967 to 1985. 8 Q Doctor, what involvement have you had with the 9 National Cancer Institute? 10 A Sometime in the early 1980s, and I can't remember 11 exactly, 1980 or '81, the same question came up in Los 12 Angeles, the greater Los Angeles County. We were seeing 13 more cases of mesothelioma than usual. There was just -- 14 pathologists never seen a case of mesothelioma in the early 15 days, never. So all of the sudden pathologists in general 16 were seeing these cases and questioned are they real or 17 not. 18 So the National Cancer Institute had a grant 19 supported program of epidemiologists and pathologists, 20 and -- actually one pathologist, me. And they wanted me to 21 look at every single case in Los Angeles County for a 22 seven-year period. There was actually well over 300 cases 23 listed, probably more. So anybody who had the diagnosis of 24 mesothelioma on the death certificate was put into this 25 series to study. 10 1 Now, the diagnosis may have been a question mark. 2 Pathologists may not have believed it was, but it was a 3 question. But everyone of those became a study subject to 4 be widdled down in terms of did we have enough material to 5 work with, could we folow up, and so forth. 6 But in any event, I was assigned the job of 7 asking as a pathologist who had been on the panel for the 8 US reference panel what did I think, how many of these were 9 really valid. 10 Q About how many such cases were presented to you 11 for evaluation? 12 A Well, I think it got narrowed down to a little 13 over 200. And then because of little things that -- the 14 epidemiologists were not happy about the materials I 15 couldn't get, I couldn't get the slides or I couldn't get 16 the blocks, I think the eventual number was 164 or 17 something like that, or 162, in that range. 18 Q And were you able to confirm the diagnosis of 19 mesothelioma in any of those cases. Doctor? 20 A Yes, I accepted actually 29 percent. The paper 21 read 26, but there was a group of tumors in there which 22 were called benign mesotheliomas, and they should not have 23 been included in the compilation. But it's 26 percent of 24 the overall group of 29 percent of those which were of the 25 cancers. 11 1 Q Did you find cancers that -- strike that. Did 2 you make a diagnosis that favored cancers other than 3 mesothelioma? 4 A Well, in other words, if we accepted 29 percent, 5 then the cause of the rest of them had to fall in -- in the 6 category where we didn't accept it. That category was 7 twofold. There was two different categories. One said 8 that I was confident it was some other kind of cancer as 9 far as adenocarcinoma or something else. And the other one 10 said well, I couldn't be absolutely sure it was carcinoma, 11 but I thought it was. I favored it, which meant that I 12 hadn't excluded mesothelioma. So there was some cases 13 where I hadn't entirely excluded it, but I hadn't -- but I 14 favored carcinoma. 15 Q Were the results of this study published. 16 Dr. Sherwin? 17 A Yes. 18 Q Do you recall the publication? 19 A Well, it's in the CV. I think it's the British 20 Journal of Medicine or something. 21 Q What year approximately? 22 A 1984. 23 Q Now, at this time in 1984, Dr. Sherwin, were you 24 involved in any consulting for litigation with the respect 25 to the subject of mesothelioma? 12 1 A No. This was all in the National Cancer 2 Institute sponsored study. None of those cases to my 3 knowledge ever came up for litigation subsequently. 4 Q Now, after this publication and completion of 5 your study did you become involved as a consultant in 6 litigation? 7 A Yes, I did. 8 Q Approximately what year, sir? 9 A Well, definitively I would say 1985. 10 Q Now, in this litigation setting, Dr. Sherwin, 11 were you asked to analyze tissues and make a diagnosis if 12 possible? 13 A Yes. 14 Q And were your servicesgenerally sought by 15 plaintiffs or defendants side of the cases? 16 A Well, I was open to anybody. And initially we 17 had three or four plaintiffs. But subsequent to that it's 18 been entirely defendant. 19 Q Now, let's look over the past couple of years. 20 Approximately how many cases are presented to you for an 21 analysis as to whether or not it's a mesothelioma or some 22 other form of cancer? 23 A Well, I've never kept a tally. One of the 24 reasons is it's very hard to tell because some cases may be 25 a year old. I think this case was a year ago or something. 13 1 But generally speaking, I wind up with around say 24 to 34 2 cases a year, in that range. 3 Q Would you state whether or not, Dr. Sherwin, you 4 were able to reach a diagnosis of meso in some of these 5 case and rejected it in others? 6 A Yes. 7 Q Now, let's review what you did. Let's take our 8 last year, 1991. And should we speak of 24 to 34 cases? 9 A Well, that's an estimate. That's probably true. 10 Q All right. 11 A That is -- I don't know exact numbers, but it's 12 in that range. 13 Q Now, when you give a diagnosis of mesothelioma; 14 that is, make a positive finding to a defendant's lawyer 15 such as myself, would you state whether or not you are 16 generally asked to proceed further after that? 17 A No, I've never had -- I've never had any 18 defendant ask me to write a report, go to trial, or give a 19 deposition once I've indicated that this tumor may be 20 mesothelioma. 21 Q Now, you've indicated that you may have testified 22 in court. How many such appearances like this with respect 23 to mesothelioma did you undertake in 1991? 24 A Two trials in 1991 and nine depositions. 25 Q Well, that would be 11 out of those some 24 to 34 14 1 cases? 2 A Yes. 3 Q Is that correct? 4 A Yes. 5 Q Would you state whether or not, Dr. Sherwin, the 6 remainder included cases resolved without further 7 proceedings and included cases that -- in which you gave a 8 diagnosis of mesothelioma? 9 A Yes. I have -- I have such cases very definitely 10 in mind that I can't recall the exact cases. But there 11 definitely are cases that come up where I will say my 12 estimate is that if the panel were to look at this you 13 would probably get a majority if not unanimous opinion that 14 this is a mesothelioma. Then after that the case is 15 generally resolved some way. 16 Q Now Dr. Sherwin, on a prior occasion have you 17 undertaken such an evaluation for me in another case? 18 A One, as far as I know. 19 Q And how long ago was that, sir? 20 A Last year maybe. I'm not sure. 21 Q Close enough. 22 All right. Let's go back to pick up some loose 23 ends in your professional career if we may. Were you 24 associated with the University Hospital in Boston? 25 A Yes. I was actually the acting chief of 15 1 laboratory when I left to come to Los Angeles. 2 Q What does that position entail, or did it entail? 3 A The laboratory had three main functions. One was 4 surgical diagnosis; in other words, biopsies, suspected 5 lump in the breasts. Doctor would biopsy it, it would come 6 to our department, we'd make a diagnosis. Then there was 7 an autopsy service which was again a part of the 8 department's responsibility. And then the third part of 9 the responsibility was teaching. We had medical students 10 for teaching, and we had surgeons who were coming through 11 for training in pathology. We had internships and 12 residencies in pathology. So we ran a teaching program to 13 train not only pathologists, but surgeons and clinicians. 14 Q Doctor, let me focus for a moment on your 15 publications. Have you published any articles with respect 16 to the subject of cancer and mesothelioma in peer reviewed 17 journals? 18 A Yes, I have. 19 Q And what does the peer review process mean 20 generally? 21 A Well, peer review simply means that when you 22 write something other people look at it who have background 23 in pathology and know something about that particular area. 24 So the implication is that what you're saying is 25 scientifically sound to their best capability. And if they 16 1 believe so -- it may differ from their opinion. But if 2 they believe that it has merit then it's accepted for 3 publication. 4 Q Now Doctor, approximately how many peer reviewed 5 articles have you written on the subject of malignant and 6 non-malignant lung disease? 7 A Gee, I've never really tabulated. But most of my 8 articles are on lung disease, most of them. And there are 9 some 100 something articles in peer review journals, 10 leaving out chapters in books and none peer review. 11 Q Let me ask you this, Doctor, have you addressed 12 the issue of lung cancer generally? 13 A Well, lung cancer has been my special interest. 14 I started my research career in lung cancer and basically 15 have continued to this day. Mesothelioma is really not 16 much of a different direction for me except that of all the 17 cancers I've been concerned about, mesothelioma has been 18 one of the most challenging and has somehow become very 19 frequent in terms of the problem. But the problem I was 20 involved in was how do you tell the difference between a 21 cancer that arises in the lung and spreads through the 22 lung, metastases primary versus secondary. And I spent 23 most of my research career or a great part of it in the 24 early days on this very subject, how do you do that. 25 Q Have you published on the subject of metastasis; 17 1 that is, spreading of cancer? 2 A Yes. We were very, very concerned not only in 3 terms of the human experience, but in terms of the 4 mechanism; in other words, actual mechanisms may even 5 involve why certain organs are selected, the blood vessel 6 alterations, and that type of thing. 7 Q Have you also addressed the subject of 8 mesothelioma in your published articles? 9 A Yes. 10 Q How about the subject of breast cancer? 11 A Well as a matter of fact, I have done research in 12 breast cancer. And that was supported by the National 13 Cancer Institute. In fact, I had a strong interest in that 14 at one time, so much so that I was on what was called the 15 National Task Force for Breast Cancer. 16 The National Cancer Institute has a mandate that 17 let's do something about improving diagnosis, getting at 18 the etiology causes, and actually had a task force. And I 19 was appointed, and my job was to read grant applications 20 and help further research in this area. I gave money. I 21 didn't get money as a result. Well, I did get one grant 22 support independently of this of course. 23 Q How about articles in preparation, Dr. Sherwin? 24 Are some in preparation at this point? 25 A Yes. 18 1 Q On what subject, sir? 2 A Well, mostly in two areas; the area I'm working 3 on which is air pollution, and another area which is 4 cancer, which largely now is mesothelioma. 5 Q How about presentations? Have you presented 6 papers and lectures to your -- 7 A Yes, I have a number of -- fairly long list of 8 presentations. 9 Q Have these addressed malignant and non-malignant 10 disease? 11 A Both, yes. 12 Q Metastasis? 13 A Yes. 14 Q Mesothelioma? 15 A Yes. 16 Q Have you also contributed to books; that is, 17 professional text books and the like? 18 A Yes, I have. 19 Q In what general field, sir? 20 A Well, mostly lung cancer. I think there was a 21 chapter on metastasis and -- well, basically those three 22 areas; cancer, my air pollution area, metastasis, that type 23 of thing. 24 Q Doctor, I'm going hand you Exhibit 457G and ask 25 you if you can identify this. 19 1 MR. GRAVES: May I approach the witness, Your 2 Honor? 3 THE COURT: You may. 4 THE WITNESS: Yes, that's a curriculum vitae 5 which is a listing of my background and publications, 6 memberships and so forth, like a resume. 7 Q (By Mr. Graves) What's the date of it, sir? 8 A July 1, 1992. 9 MR. GRAVES: I request admission of Exhibit 457G. 10 MR. METCALF: I'll object on the basis of 11 redundancy. I think we've had a pretty good outline of 12 what's in it already. 13 THE COURT: It's admitted. 14 Q (By Mr. Graves) Dr. Sherwin, we've had other 15 physicians testify before this jury, and I think we have a 16 pretty good working knowledge of mesothelioma and the 17 cancer process. But there are a few things I want to focus 18 on here this morning and perhaps narrow your testimony if 19 we can. 20 First of all, what makes the diagnosis of 21 mesothelioma difficult, if it is? 22 A The -- I think the first thing that makes it 23 difficult is we don't have a gold standard. There's no 24 single criterion or for that matter combination that says 25 this is a mesothelioma and nothing else can look like it. 20 1 So unfortunately at the time we're standing right 2 now the diagnosis is largely an exclusion. Things have to 3 be negative with a few -- with a few findings that tend to 4 favor mesothelioma, but they're not absolute. 5 So if you don't have something that says this is 6 a man, this is a woman, and it's a real gold standard, and 7 sometimes that's a problem, then of course it becomes a 8 real difficult problem. And this diagnosis of mesothelioma 9 is the worst that there is in terms of yard sticks or gold 10 standards now. That's one of the major reasons. 11 Another reason of course is that while one of the 12 nice things about getting to be recognized as an expert in 13 the field is I can say I don't know, but many cancers 14 surprisingly can't be identified. And there's a tendency 15 to want to put a label on it somewhere between 3 and 15 16 percent of the cancers are cancers of unknown origin. You 17 don't know where they're coming from, but you find it in 18 lymph nodes, there are metastases to skin or liver or 19 someplace. And surprisingly some of these people will live 20 many years. I can think of some report of 212 months of 21 survival,, and they didn't still know where the cancer was 22 coming from. 23 So if you have up to 15 percent, and I think the 24 figure is higher because since pathologists will tend to 25 say they know when they don't really have proof. There 21 1 will be an over statement of the positives, or the other 2 way around, understatement of how uncertain you can be. 3 So that makes it a problem because if you don't 4 know where the cancer is coming from, there's a tendency 5 for cancers to be identified as mesothelioma. And this 6 opens the door to criteria that may not be valid. In other 7 words, I had a mesothelioma that made mucin, but really it 8 isn't true because it just simply -- you never found the 9 original site. So that's one of the things that's been a 10 handicap; that criteria have come in that are not really 11 valid. Those are basically the points. 12 Q What about the available information with respect 13 to -- that might be made available to you? Is that a 14 problem in diagnosis? 15 A Yes. Well, that's -- that's another important 16 factor. And that is, you can make a diagnosis on nothing 17 more than what we call a cell smear. You can cough up some 18 material. You can take a needle and take some fluid out, 19 make a smear. And that's called a cytology procedure, 20 cytologic examination. 21 Well, that is -- that gives you very, very little 22 information because all you're dealing with is a cell out 23 of context. You don't have the structure. But you can do 24 a biopsy. Could be very small piece or it could be a large 25 resected piece or it could be a whole resected lung. Of 22 1 course the real high level of confidence comes from autopsy 2 when you get a diagnosis of mesothelioma or whatever you've 3 heard about and they include all of these. There are some 4 made by nothing more than smears and cell blocks, and some 5 made by needle asprays(phonetic). But if you don't have 6 one made by autopsy which is -- obviously you have to make 7 the diagnosis during living. But the high level of 8 confidence cannot be reached until you've excluded the 9 possibilities. 10 Q Doctor, why is the tumor called a mesothelioma? 11 A The lung is -- believe it or not, the lung is 12 really outside of the chest cavity just as the bowel is 13 outside of the abdominal cavity. 14 How can you say that? The answer is that the 15 chest cavity has a balloon in it. And the lung grows into 16 this balloon. If you can imagine that balloon being a 17 transparent balloon, you can see the lung through the 18 outside, but you see it through two different layers. 19 The layer of the balloon that covers the lung is 20 the layer of the balloon that is at the top. Well, the top 21 layer of the balloon is called the parietal pleura, and the 22 bottom layer is called the visceropleura. And that layer 23 is called mesothelium, and tumors of that layer are called 24 mesothelioma. 25 Q As the tumor develops what do you expect to see 23 1 if it's a mesothelioma? 2 A Well, pathlolgists for years have always said if 3 it looks like a mesothelioma, it looks like a lung cancer. 4 There are many different kinds of cells in the lung. But 5 the mesothelium has these two cell layers. And so what 6 you're looking for is a proliferation of these cells. And 7 they proliferate in two -- in two fashions. One is they 8 proliferate and they still look like the layer. 9 Now, the layer is comprised of these two cell 10 kinds. If you think of a rug, the rug would be a thin rug, 11 not a pile rug. Then the rug would be the epithelium like 12 the mesothelial lining. But underneath the rug has some 13 sort of backing. I don't know what that's called, maybe 14 somebody here can tell me. But the rugs usually have some 15 kind of lining or floor backing. And those two things may 16 grow together. If they grow together, then you have the 17 interesting phenomenon of a tumor growing from two separate 18 distinct elements? from the rug itself and from the back 19 itself. And that's where that word biphasic comes in. So 20 it's tumor that grows with both of those components 21 proliferating. 22 Q All right. Now, if the tissue begins to look 23 less like a mesothelial lining, what does that tell a 24 pathologist? 25 A Well, then it becomes a problem obviously if -- 24 I 1 if you want to make the diagnosis. What you're saying is 2 if it looks likes the pleura then it becomes a yardstick. 3 You can say well, I think it's mesothelioma because it 4 looks like it now. It's one of many criteria. 5 What you do is you set up criteria which are 6 established, and you go through the criteria and you say 7 well, does it look like a mesothelioma. That happens to be 8 two of the criteria. One of them says does it have the 9 structure. The other one says did it have the components. 10 In other words, with bricks you can make a wall 11 or chimney or a house out of the bricks, but the bricks 12 that you use would be recognized well, this is a brick 13 house, and it's red brick. And you say yes, it's made out 14 of red brick. That tells you yes, it's a house because it 15 has that shape. So you say this is a brick house because 16 it's got bricks and it looks like a house. So that becomes 17 your yardstick. 18 If you have that, if it looks like a mesothelial 19 layer, that becomes useful as a diagnostic criterion. 20 Q Does this tumor come in different types, 21 Dr. Sherwin? 22 A Yes. It's important for to you know that you can 23 get three different kinds of mesothelioma. One is called 24 diffuse malignant mesothelioma. That has an asbestos 25 exposure relationship. There are two others. They're both 25 1 local. There's a localized form that just grows as a 2 carcinoma would, local. And that is usually benign, but it 3 also in 20 percent of the cases is malignant. And that can 4 grow just like a carcinoma and invade the whole chest 5 cavity and mimic a malignant diffuse mesothelioma. But the 6 important thing is no one has ever shown the relationship 7 between malignant local mesothelioma and asbestos exposure. 8 So those distinctions become important. 9 Q All right. Dr. Sherwin, let's go directly to 10 Curtis Richie if we may. At my request. Dr. Sherwin -- 11 first of all, have you reviewed medical records pertaining 12 to Mr. Richie? 13 A Yes, I have. 14 Q Have you reviewed pathological materials prepared 15 by Mercy Medical Center in Denver? 16 A Yes, I have. 17 Q And how about pathological materials from 18 Dr. Abraham? 19 A Yes. 20 Q Have you reviewed Dr. Hammar's reports of these 21 cases? 22 A Yes, I have. 23 Q And how about reports from Dr. Abraham? 24 A Yes. 25 Q Did you also review a report from Bruce Case? 26 1 A Yes, I have. 2 Q Did you have the opportunity to review electron 3 microscopy photographs? 4 A Yes. They were -- they provided me with some 5 electron micrographs. And at the very tail end of this, 6 even at the time of deposition, we were processing our own 7 electron micrographs. 8 Q All right. Doctor, did you also have the benefit 9 of immunohistochemistry reports from anybody in this case? 10 A That's correct. 11 Q And from whom did you obtain those, sir? 12 A Well, the laboratory is the USC 13 immunohistochemical laboratory, and the director of that 14 lab is doctor Clive Taylor, and one of his associates is 15 Dr. Nancy Barr. And his associate, Dr. Nancy Barr, 16 provided me with reports. Dr. Taylor read one slide and 17 provided me with a report on one slide. 18 Q Now, is this department, Dr. Sherwin, under your 19 direction and control? 20 A No. I have no tie to this department whatsoever 21 in any way. 22 Q Did you receive any financial benefit as a 23 consequence of a referral to this laboratory? 24 A No. It's a referral laboratory strictly and the 25 counsel pays for the services. 27 1 Q And have you had a past working relationship with 2 this laboratory, most specificially with Dr. Taylor and 3 Dr. Barr? 4 A Yes. We have worked out the panel of tests with 5 Dr. Taylor basically. 6 Q What has he done? What procedure did he go 7 through? 8 A Well, Dr. Taylor has a formal listing. He has a 9 check sheet if you want to have these tests. It's like in 10 a lab if you have a blood count done, he has a check sheet 11 and he has a listing of all the tests that he does in that 12 laboratory. And he and I have over the years lined up 13 those tests that we believe may be useful in the arrival at 14 a diagnosis of diffuse malignant mesothelioma. 15 Q Now, what is your understanding of the reputation 16 of that laboratory and personnel that are involved, most 17 specifically Dr. Taylor and Dr. Barr? 18 A Well, I believe it's highly respected. 19 Dr. Taylor has written a book on the subject which I 20 believe is widely used. You know, I don't have -- I have 21 several people that have asked about it. But I know their 22 cases come in from all over California. Simply by 23 overhearing comments I believe that it is highly respected. 24 Q What about the qualifications of the two 25 individuals? Are they certified in their field? 28 1 A Yes. As well they're both -- they're both highly 2 qualified in the area of immunohistochemistry. They're 3 both board certified in anatomic pathology. 4 Q Why is it, sir, that you don't do your own 5 immunohistochemical analyses specifically? 6 A The laboratory is very demanding. You have to be 7 in total control of the antibodies you're buying. You have 8 to control the tests. You have to train your technicians. 9 There are control tests going on all the time, not just for 10 the mesotheliomas that come there, but for all kinds of 11 different cancers. And they all serve to tell them how 12 well they're tests are going. You have to be an expert in 13 the area to control all of these factors, know which 14 companies are providing the best antibodies, and to know 15 whether the antibodies they are providing you really are 16 working. Since that would be a full-time job for me, I 17 don't do that. 18 Q Doctor, who made the arrangements with the 19 University of California laboratory? 20 A Well, we have this check list and we routinely 21 check off a certain number. I think it's 23 routinely, 22 somewhere in that range. And I have an associate who just 23 routinely checks off these. Once in a while we will ask 24 for something special if it's available. If we hear of 25 something new coming up that the laboratory has not 29 1 particularly developed -- for example, the renal antibody 2 was actually developed by somebody on our faculty, and 3 my -- I knew he had that antibody. And Dr. Taylor made it 4 available to us by asking him for it. He manufactured his 5 own. In other words, he developed that in his own 6 laboratory. 7 So the arrangement is basically mostly what is a 8 formal listing that Dr. Taylor and I have arranged. He and 9 I agree these are the ones who -- if we drop some of them 10 because he will tell me we no longer do them or we 11 substituted something or we've added something and we are 12 now doing such and such a test, you may wish to include it, 13 so we do. But that's the arrangement. 14 Q Doctor, did my firm or did I have any involvement 15 in the making arrangments with Dr. Taylor? 16 A No. 17 Q To whom did the reports from Dr. Taylor's 18 laboratory come? 19 A Well, the report came from doctor -- as I 20 mentioned, doctor -- from Dr. Barr and one report came from 21 Dr. Taylor. 22 Q To whom? 23 A To me. 24 Q Not to me? 25 A No. They're always addressed to me. They do it 30 1 as a consultation service for me. 2 Q Now Dr. Sherwin, did you also review a copy of a 3 deposition of Dr. Barr taken by plaintiff's counsel in this 4 case? 5 A Yes, I did. 6 Q When did you have the opportunity to review that, 7 sir? 8 A Last night. 9 Q Now Doctor, would you state whether or not the 10 immunohistochemistry analysis by a qualified laboratory is 11 the type of information upon which pathologists rely in 12 considering reaching a cancer diagnosis? 13 A Yes. Immunohistochemistry is a developing 14 experimental methodology. It's still useful. But at the 15 end of all the reports there's usually a disclaimer saying 16 this is an experimental or developmental test. And 17 therefore, it always carries a little bit of reservation 18 that things are developing, -- you know, in mesothelioma, 19 because there's a new antibody coming out almost like a 20 book of the -- book of the month club. Not quite that but 21 they certainly are frequent. I think basically that's that 22 answer unless I left something out. 23 Q No, I think not, Doctor. 24 Let me, Doctor, go directly to the heart of the 25 issue if we may. Do you have an opinion. Dr. Sherwin, to a 31 1 reasonable degree of medical probability as an expert 2 pathologist and based upon your evaluation of all the 3 materials that we have discussed this morning, have you 4 been able to reach a diagnosis to a reasonable degree of 5 medical probability? 6 A Yes, I have. 7 Q And what is that diagnosis, sir? 8 A My diagnosis is I don't really know. It's a 9 tumor of uncertain origin. I'm not sure where it's coming 10 from. 11 Q Doctor, we spoke earlier of the three types of 12 mesothelioma. I think you listed those for us as diffuse, 13 local non-malignant and local malignant. Do you have an 14 opinion to a reasonable degree of medical probability 15 whether this tumor in the pleura was one of such? 16 A Yes. I am confident this is not a mesothelioma. 17 Whether we are talking about diffuse or local benign or 18 local malignant, this is not a mesothelioma. 19 Q Dr. Sherwin, over the years have you developed, 20 incorporated, adopted, whatever verb is most appropriate, 21 certain diagnostic criteria that you feel are useful? 22 A Well, I have used them. When I joined the panel 23 there was certain criteria that were told to me and that I 24 learned from the experience of others, and of course that 25 I've picked up on my own from the standpoint if they said 32 1 it looks like the cells of the mesothelium I got to look at 2 the cells of the mesothelium. They were cuboidal to 3 flattened, just the way they said they were. So some of 4 these they told me most of them were confirmed. But they 5 are -- they are established recognized criterion. 6 Q By whom? 7 A And I use them. 8 Q By whom? 9 A Well, they wereused bythe panel in most 10 reports. I'm sure whoever has told you about mesothelioma 11 from a pathology standpoint has mentioned the key words, so 12 I don't think it's going to be any surprise in terms of the 13 criteria I use. 14 Q Can you state whether or not these criteria that 15 you just described are generally recognized in the field? 16 A Yes. 17 Q Now, as knowledgedeveloped, Dr. Sherwin, 18 particularly your knowledge and knowledge in published 19 literature, for example, can you state whether or not you 20 have adjusted you criteria or changed the focus over the 21 years? 22 A Well, there are two things I did change when -- 23 way back in the early '80s when electron microscopy was 24 just starting out in the field basically. It was hopeful 25 that microvilli might be useful. Turned out as I started 33 1 to do more and more that I didn't think it was useful. And 2 I think this is a good concensus right now that microvilli 3 are not very helpful. I don't consider them helpful at 4 all, so I have discarded the use of microvilli. 5 At one time we used to use a test for what is 6 called hyaluronic acid. The mucous in your mouth is 7 neutral and the mucous in some of the other tissue is acid. 8 And there was a thought at one time that mesothelioma made 9 acid mucous and that might be helpful. Now these -- 10 through these special tests and having done it I suddenly 11 over the time realized it was scientifically very invalid, 12 similarly had no scientific validity. I certainly don't 13 even bother doing it. 14 So those are two things that have changed. And 15 incidentally, those are what we call ancillary tests. 16 They're part of the ancillary. They're not the body of the 17 criterion. 18 Q Doctor, we've heard the term microvilli in this 19 courtroom before. Just describe briefly what that refers 20 to. 21 A Every cell has a membrane, has a cover to it. 22 That's the whole life is enclosing all the things that you 23 use to live with inside a membrane protected from the 24 outside. Some cells not only have a membrane, but they 25 have the property of making that membrane fold so they 34 1 become fingers like that. It's a very interesting property 2 which probably carries over into malignancy, which we wish 3 it wouldn't do. 4 When these membranes fold they form these 5 fingers. Now, these fingers are very useful for some 6 cells. Why? Because if you wanted to absorb water or 7 absorb anything, the more area you have the better you can 8 absorb it. So these little fingers on certain cells are 9 called microvilli, and that's all it is. A lot of cells 10 have those kinds of fingers. 11 Q As a consequence of your review of the electron 12 micrographs in this case did you find bushylike microvilli? 13 A No. 14 Q Is that a distinct criterion that some physicians 15 employ? 16 A Well, as I say, it was used. Some people still 17 use it. I don't use it. But in any event, they weren't 18 there. 19 Q Do some physicians commonly look for those in the 20 presence of mesothelioma? 21 A Well, yes. What I'm saying is -- is that in 22 trying to come to a diagnosis they use electron microscopy 23 to look for microvilli, long sinuous meaning wavey 24 microvilli. Bushy is another word that's used. Branching 25 is another word that's used. I just don't believe we have 35 1 scientific background to make that a valid diagnostic 2 yardstick. 3 Q But in any event, were they there or not? 4 A As far as I know no one else saw them either. 5 Q Now Doctor, have you broken down your criteria 6 that you use in diagnosis of mesothelioma into two 7 categories? 8 A Two categories? 9 Q Major categories? 10 A Well, there is the main body, and I mentioned 11 ancillary. 12 Q All right. What do we call those? 13 A The ancillary ones? 14 Q Well, no. Let's start with the -- 15 A The main body ones are what pathologists are 16 always relying upon. Remember that when mesothelioma was 17 first detected and in the early days of making a diagnosis 18 before we had electron microscopy before we had the 19 immunohistochemistry, before we even had histochemistry, we 20 were relying upon certain solid anatomical findings on the 21 gross level being what the naked eye could see, what the 22 microscope showed you. And those are the main bodies of 23 the diagnostic criteria. 24 Q All right. 25 A It's the main body of it. 36 1 Q Now, you threw me for a loop because you used a 2 different word. 3 I'm going to show you, Dr. Sherwin, Exhibit 475. 4 Can you identify that, sir? 5 A Yes. 6 Q What is that? 7 A Well, it's a chart that I had mentioned should be 8 set up because it would clarify the diagnosis. 9 Q Does that reflect your findings? 10 A Yes. 11 Q All right. And instead of I think main body, 12 have you referred to certain tests as primary? 13 A Well, that's interesting. I may have said that, 14 but I don't ordinarily use primary. 15 Q All right. 16 A But main body is fine, or the main tests as 17 opposed to ancillary tests. 18 Q All right. We've used primaries and others. Is 19 that satisfactory? 20 A That's -- maybe that's a good term. 21 Q I'm going to display this to the jury. And 22 Dr. Sherwin, I want you to take us through your findings if 23 you would with respect to Mr. Richie's tissue. Let's talk 24 about how the chart is structured. First of all, you're 25 trying to make a differential diagnosis between 37 1 mesothelioma and cancer; is that correct? 2 A Yes. Your problem is relatively simple. All 3 you're trying to say is you've got to decide between a man 4 and a woman, and you've got certain criterion that says 5 well that favors a man, that favors a woman. We're not 6 looking for absolutes. In fact our panel never said 7 absolute, it always confident, you're confident that this 8 is a mesothelioma or you're confident it's not. 9 All we did was to take them all, we never took 10 any one by itself. I never do no more than your doctor 11 would take any test all by itself, history, and physical 12 and all the tests. And he may ignore some of the tests and 13 say well, it doesn't fit. So you have to do what is called 14 a clinical pathologic correlation, put all the pieces 15 together. But while you're doing it you set up this little 16 arrow, and it says which way is the arrow pointing. Is it 17 pointing towards carcinoma? Is it pointing towards 18 mesothelioma? And that's what this is doing for you. 19 Q All right. Well, in the interest of saving space 20 on a chart like this, we've simply used yes or no. Do you 21 intend that to be a definite yes or no? 22 A Well, I usually use plus or minus, but I guess 23 you're tired of plus and minus and it became yes and no. 24 May I get up and look at this? 25 Q Yes, of course. 38 1 A So yes simply says the arrow was pointing this 2 way, and no says the arrow was pointing this way. 3 Q That's all? 4 A The other -- the other way around if it says no 5 it means the arrow is pointing to something else. 6 Q So we have a category for mesothelioma, 7 adenocarcinoma, and Mr. Richie. Is that the basic 8 structure of the chart? 9 A Yes. 10 Q Let's jump right into what you have denominated 11 five primary testings and discuss the first one, diffuse 12 lung encasement. Tell us what's involved and what you 13 found. 14 A Yes. We -- remember we said that the name of 15 this cancer is diffuse malignant mesothelioma. So right 16 off there is a criterion everybody knows and can recognize. 17 It didn't say local, it says diffuse. You have to ask 18 yourself what is diffuse. 19 One of the problems is that people don't define 20 their criteria. This is -- I guess my lectures usually say 21 you must uniformly define and uniformly apply criteria, and 22 that's why you're in trouble. 23 So what is dif -- what does diffuse mean? Well, 24 diffuse is like a pillowcase. It covers your pillow, and 25 so that's a pillowcase. You can take a dozen hankerchiefs 39 1 and do it, but it's not a pillowcase. That's what 2 carcinoma does. So you have to have a definition. My 3 definition comes out of Webster's Third International 4 Dictionary which is, I think, a 1981. What it comes down 5 to is diffuse means completely covered. Now, when this was 6 originally defined Dr. McCoy had written down the 7 outstanding characteristic is the completeness with which 8 it invests the lung. And that's what I require by diffuse, 9 it has to be a rind. 10 A rind is like an orange rind, grapefruit rind. 11 It is around the lung. It's the most characteristic, most 12 distinctive thing you see. 13 So we asked ourselves this question, does this 14 fulfill the criterion of -- of being a rind of cancer that 15 encases the lung. And the answer is it should be if it's 16 going to be a diffuse mesothelioma. But it does not. In 17 adenocarcinoma ordinarily. And Mr. Richie definitely did 18 not have -- no one described a rind of cancer encasing the 19 lung, definitely didn't describe that. 20 Q Doctor, did you have the opportunity to take some 21 photographs through the microscope? 22 A Yes, I did. 23 Q And is there some photographs that help us to try 24 to define whether or not we have a rind tissue or some 25 other 40 1 A Yes, I made two 8 by 10 color pictures for you to 2 look at. 3 Q I wonder if you would direct your attention, 4 please, to exhibit 470 and describe that for us. First of 5 all, ask you can you simply state what it is, how it was 6 prepared, and we'll go from there. 7 A Yes. Is that Exhibit No. OCF 470? 8 Q Yes, sir. 9 A This is from the left lower lung, left lower lobe 10 of the lung. And from where you are you can see just two 11 things -- 12 Q Excuse me, Doctor. Just for our court procedure 13 here it's easier if you can tell us where that was 14 obtained, who obtained it, and then we'll go -- 15 A Yes. It's a biopsy from the left lower lobe of 16 the lung. And it was a February, '87 operation. I can't 17 remember exactly the date, but it's an operation in which 18 they explored the chest cavity and found what they 19 suspected might be cancer, I assume, and they biopsied it. 20 Q Whose tissue is it, sir? 21 A This is Mr. Richie's. This is from the lung of 22 Mr. Richie at the time of that operation. 23 Q Does that reflect what is visible through the 24 microscope? 25 A Yes. In other words, the biopsy was taken, 41 1 processed through the laboratory, sections stained, and 2 then I took -- I took a look at it and this is what I saw 3 under relatively low power. 4 MR. GRAVES: All right. I request the admission 5 of Exhibit 470. 6 MR. METCALF: No objection. 7 THE COURT: It's admitted. 8 Q (By Mr. Graves) Doctor, would you explain to the 9 jury what is depicted there. 10 A You can basically see two things. One is a 11 rounded, oval sort of structure on the top very, very well 12 defined, and then some lacey material on the bottom. So 13 the top half is this rounded overmass almost like an 14 avacado, I suppose. Then on the bottom is a lacey 15 structure, that's lung. So the lower half is lung tissue. 16 And then when you look at it more closely you will see a 17 line that goes across between this mass and the lung that's 18 the pleural surface. 19 But the important thing for you is this has the 20 characteristics of carcinoma. What is the characteristics? 21 A rind of cancer would be the entire lung is surrounded by 22 this kind of material everywhere. You could not find 23 pleura anywhere without this material. Conversely, if it's 24 lung cancer two things usually happen. You get a nodule 25 that metastasizes to the pleura, spreads by channels, or 42 1 cancer cells drop off of another site in the chest cavity 2 and they're just like seeds of grass. They implant. It's 3 called implantation. Now, I don't know whether this is a 4 metastasis to the pleura or an implantation. I believe 5 that more likely is an implant. In other words, the cancer 6 cells fell off, stuck to the pleura, and they grew like 7 this. If it were a vegetable of some sort it might be I 8 suppose a cauliflower or something on top of the pleura. 9 But the important lesson is around the lung is pleura 10 without tumor. 11 So this is the classic typical picture of what 12 carcinoma of the lung or any other cancer would do when it 13 was metastatic from an abdominal organ or any other place, 14 that's what it does. 15 The pluera is a common site to spread. And once 16 any tumor gets into the lung it's going to get in the chest 17 cavity and it's going to have the opportunity to see and do 18 this. 19 Q Doctor, would you state whether or not this photo 20 represents encasement or diffuse? 21 A No. Very specifically we said if there were 22 encasement there would be no pleura free of this particular 23 tumor. 24 Q All right. 25 A You would not see -- the hallmark of carcinoma is 43 1 nodules. The hallmark of mesothelioma is a rind and 2 encasement, multiple nodules, a rind like a grapefruit rind 3 that's everywhere is mesothelioma. That's a standard 4 definition. 5 Q Doctor directing your attention to Exhibit 471, 6 was that obtained by you, sir? 7 A It's a picture I took. 8 Q Does that reflect what you saw through the 9 microscope? 10 A Yes. 11 Q Is that Mr. Richie's tissue? 12 A This is Mr. Richie's tissue. It's that lung 13 biopsy that was taken from that operation, it's the same 14 tissue. 15 MR. GRAVES: I reguest admission of Exhibit 471. 16 THE COURT: It's admitted. 17 Q (By Mr. Graves) Would you then describe to the 18 ladies and gentlemen of the jury what you find there, sir? 19 A This piece of tissue comes from the same 20 microscopic slide that that came from. That is incomplete. 21 I don't show a lower power that brings everything in, but 22 this gives you a higher power of the pleura so everything 23 at the top of this field that runs from here to there is 24 pink material. 25 I can't -- there's no cancer there. This is a 44 1 thickened pleura which is called fibrosis. So it's 2 fibrosis of the pleura from what cause I don't know. 3 Anytime you get anything wrong with the chest you 4 have to be concerned that you're going to get fibrosis. 5 You can have an operation you can go do a chest tap and get 6 fibrosis. Automobile accidents may have contributed to 7 this. But the cancer growing there itself is an irritant. 8 And you get bloody fluid. And bloody fluid means the 9 pleura reacts. And you will get this thickening. 10 But the important thing is this is fibrous 11 thickening of the pleura and not a cancerous thickening. 12 By definition diffuse malignant mesothelioma must be a 13 cancerous rind that is diffuse and encases the lung. 14 That's the definition. 15 Q All right, Doctor. Let's go to the second 16 primary test that you have depicted up here. And that's a 17 biphasic characteristic or -- I wonder if you'd explain 18 what that is, please. 19 A One of the reasons diffuse malignant mesothelioma 20 came into existence was simply because it had these two 21 kinds of -- may I take that piece of paper and show them? 22 Q That's a good idea. Thank you. 23 A It will be handy. If you think about the yellow 24 as the mesothelial epithelial layer and the blue as the 25 supporting connective tissue, this is what covers the lung. 45 1 The lung is covered with this particular lining. Now, it 2 has epithelial lining and it has the connective tissue 3 lining. 4 How often do you get a cancer that proliferates 5 with both of these? Not common at all, very unusual. So 6 when you get a cancer that does both of these and it looks 7 like the mesothelial lining, it becomes a sign that says if 8 it's biphasic it has diagnostic value. Biphasic I suspect 9 is not the commonist form, but if it's only the epithelial, 10 that's what you see with carcinomas. So it doesn't have 11 any value, doesn't have diagnostic value if it's epithelial 12 only. 13 So even though somebody may say well, it's 14 frequent, if you talk about confidence level you have a 15 higher confidence level when you have both of them because 16 that was how this entity was born. It was both of these 17 growing together. So biphasic -- nothing complicated. It 18 says isn't that extraordinary to have a tumor that comes 19 from two different cells. 20 What do you mean by that? Well, it's just like 21 having a carcinoma and a sarcoma at the same time. We 22 don't usually -- pathologist says it's carcinoma or say 23 it's sarcoma and says no, no, this one is both, meaning, 24 Doctor, I have a cancer of both tissues. Yes, that's one 25 of the unique things as a diagnostic value for diffuse 46 1 malignant mesothelioma, it does both. And that's what 2 biphasic meanings. 3 Now, diffuse malignant mesothelioma if it is 4 biphasic I say it favors the diagnosis. If it isn't 5 biphasic then it says -- the arrow says well, I expect this 6 proliferation to be with carcinoma. So therefore, it would 7 deny it with adenocarcinoma. And Mr. Richie had an 8 epithelial carcinoma only, he did not have a biphasic 9 cancer. 10 Q All right. Doctor. Let's go to the structure now 11 of our cells. I think you referred to tubulopapillary. 12 What does that mean? 13 A Let's look at three and four together because 14 they will tell you about them separately, but they go 15 together. Tubulopapillary says that its architecture -- if 16 it looks like -- all we're saying is this was one of the 17 real hopes in the early days that that's how if you had a 18 cancer that looked like mesothelioma and it was diffuse and 19 it was biphasic and we had this uniform, flattened, 20 cuboidal. And we did an autopsy there wasn't any, that was 21 ideal. And then you would say I am confident this is 22 mesothelioma. 23 So then somebody says tell me what it looks like. 24 Well, mesothelium you said has a double label and has flat, 25 cuboidal cells that constitutes this layer. But one of the 47 1 structural things it does is it folds. Why does it fold? 2 Well, if you had a rug and it was too big for your room 3 you're going to have to cut off the end. Otherwise you're 4 going to get folds in the rugs. If you had too many cells 5 growing, which is what happens with cancer, you get folds. 6 And so one of the things that happens is -- is 7 that this layer as it proliferates starts to fold gets to 8 look a lot like Christmas candy kind of thing. And if you 9 make a section through this you're going to see more 10 circles than you're going to see anything else. 11 But let me show you how that fold really looks. 12 If you take the first fold -- if I take that first fold and 13 look at it you'd see that little finger. And if you look 14 inside that finger you find connective tissue, and you will 15 see that tubulopapillary structure. In fact, there's a 16 picture in that text. 17 Now, where did the tubules come from? The answer 18 is cancers don't always proliferate even steven. So 19 wouldn't it be great if they -- all the folds were uniform. 20 They aren't. What happens is that some of the lining 21 connective tissue on the surface will proliferate on its 22 own and will start to curl. When these curl then you make 23 a section through them. It's called tubule. So this kind 24 of proliferation has a tubule look which is like a 25 doughnut. 48 1 As these cells -- as the epithelium proliferates 2 and forms this and it has this papillary thing when it 3 forms the finger we get the core of connective tissue which 4 you must have to make a true diagnosis of tubulopapillary. 5 True papillary has that core. Now, if you have that then 6 you can say well yes, it looks like mesothelium. 7 Then you have to -- may I go to the uniform 8 flattened cells. The usual mesothelial cell is like a 9 sugar cube. And incidentally we call them cookie cutting 10 cells. Cookie cutting meaning that you stamp out one and 11 they all look the same. 12 When the lung is covered by a cuboidal cell then 13 you take a deep breath, it stretches it. So when it 14 stretches it, it becomes flattened. So we talk about 15 cuboidal and flattened cuboidal. They're just stretched. 16 So that's all it means. And that's as it looks like a 17 mesothelial cell as does it looks -- well it looks 18 cuboidal, well it looks flattened because it may be 19 stretched out. 20 So I say yes. I'll accept that uniform cuboidal 21 flattened cell uniformity as one of the marks of diffuse 22 mesothelioma. It's one of the outstanding characteristics. 23 It's also in a bland cell. They all look alike. They 24 don't look particularly harmful. 25 Now, the opposite of this uniformity is something 49 1 that says you wouldn't want to make a tie. Well, I 2 shouldn't say tie because -- well, if you had wallpaper, I 3 wouldn't want the wallpaper to be a nightmare of different 4 sizes and shapes. So if you have a tremendous variation of 5 size, shape, and at the same time you have the antithesis 6 of this. So what it says the more you deviate from uniform 7 cuboidal the less confident you're going to be in your 8 diagnosis. 9 Now, in this case we have one of the 10 photographs -- 11 Q Doctor, I'd like you hand you exhibit 472. Did 12 you take that photo, sir? 13 A Yes. 14 Q Does that reflect what you saw through the 15 microscope? 16 A Yes. This is cancer again from that biopsy of 17 the same operation. 18 Q Of Mr. Richie's tissue? 19 A Yes. 20 MR. GRAVES: I request admission of Exhibit 472. 21 MR. METCALF: No objection. 22 THE COURT: It's admitted. 23 Q (By Mr. Graves) Would you please tell the ladies 24 and gentlemen of the jurywhat that represents. Doctor. 25 A One thing aboutcancer is it varies. You may get 50 1 an area that's very uniform, then it varies. You have to 2 pay attention to that variation because sometimes variation 3 is trying to tell you something. It's trying to 4 differentiate or become something else. 5 Well, what I want you to see out of this is that 6 you're not going to see uniformity. You're going to see 7 polygons, you're going to see kite shape structures, banana 8 shaped structures. This almost looks like a banana, pear 9 shape structures. And they are dark, they vary in size, 10 they vary in shape, they vary in staining. This is what we 11 call pleomorphic. It's the antithesis of what you should 12 get for uniform cells. This kind of thing says well, this 13 is what you expect to see in carcinomas, you don't expect 14 to see in mesothelioma. 15 Q All right, Doctor. Let's go to your last of the 16 primary tests and tell us what the primary site 17 identification means and what significance it carries with 18 Mr. Richie. 19 A Yes. If you have any amount of experience in the 20 pathology of mesothelioma you get the experience where you 21 found the cancer in biopsy or resection of the chest or 22 someplace else, and you're confident on the basis of the 23 surgical material that it's mesothelioma. 24 And then low and behold at autopsy somebody finds 25 a small occult cancer that clearly indicates this cancer 51 1 came from that particular organ. You can see the whole 2 transition, you can see coming from the glands, going in 3 the different shapes. And then all of the sudden you 4 realize as confident as you were, you were fooled. 5 And this is the occult cancer. This is your 6 uncertain origin. That may be 15 percent. And I say 7 that's probably conservative. And because of that an 8 autopsy is an exclusionary principle today and is very 9 important. One, it says that yes, you can make the 10 diagnosis during life, but you're not going to have the 11 highest level of confidence, especially if a question is 12 raised about cancer being someplace else. 13 So this exclusionary principle is a very critical 14 one. And what it says is there is no site outside of the 15 pleura. That's true -- well, for mesothelioma that's true. 16 With adenocarcinoma it's not. I didn't say multiple sites, 17 but it should say multiple organs. Any number of organs 18 and tissues may give rise to cancer. And your job is to 19 find the primary site would be in one organ or another; the 20 pancreas, the thyroid, kidney, the lung. 21 And in Mr. Richie's case I strongly suspect the 22 lung. I have reason to believe that -- maybe the kidney. 23 But there's no autopsy, so I am faced with the fact that 24 scientifically I can say to you the findings suggest the 25 lung, the finding -- maybe the kidney. 52 1 But that's why you do autopsies, which of course 2 would be information you can then use later on once we 3 develop these tests. So it's important to have the autopsy 4 documentation of what you did. Your autopsy is your 5 quality control of medical care. Twenty percent of 6 autopsies of clinical diagnoses coming into autopsy are 7 erroneous. Ten percent have major diagnosis impact. What 8 I'm saying is by not having the autopsy I am handicapped in 9 telling you where the primary site is. 10 Q All right, Doctor. 11 A Now, there is one thing though that I would like 12 to say that has to do with that last photograph, and that 13 is that we do have one more photograph and it has to do 14 with my suspecting the kidney. And this comes onto this 15 principle -- comes under this principle that says everybody 16 asked me said well, when you look at it on the microscope 17 what do you see. Do you have any clue at all? Does it 18 tell you anything? Could it be lung? And I said yes, it 19 certainly could be. Then they said well, could it be any 20 other organ. And I can guess any organ, but I would say in 21 substance I do suspect the kidney. And they say why do you 22 suspect the kidney. 23 Well first of all, there was an abnormality, 24 there was a question raised in 1985 I believe or '83, 1983. 25 There was a question raised about a cyst or a tumor in the 1 kidney, upper pole of left kidney I believe. But there is 2 a report that says -- that said there -- now I know -- 3 kidney pathology from the standpoint of years that it make 4 take before you discover it. 5 There are times when we have picked up kidney 6 cancer in autopsy several years after a cancer was detected 7 in the body. So that's one of those tumors of uncertain 8 origin that you may not find. It may take several years 9 for the cancer to become evident or never become evident. 10 But the point is that they suspected it 1983 to 11 '87 is not particularly a long time. It's within my 12 experience, certainly within -- it's within reported 13 experience. There are published reports of kidney cancers 14 being detected several years after a biopsy, in fact, after 15 a diagnosis made that it was something entirely different. 16 Now, the second thing says that when I looked at 17 it I use that same old principle that says does it look 18 like anything. Well you know, these cells look like kidney 19 cells. So now I have a photograph that says what do kidney 20 cells look like. And one of the hallmarks of a kidney cell 21 is a so-called clear cell. 22 If you look at these cells you'll see an 23 interesting thing, pink and blue or pink and black. 24 There's a central black round body, roughly round, and it's 25 surrounded by pink. Forget the spaces in between the pink. 54 1 But if you think about an egg, if an egg is 2 one -- is a big cell, it really is. Now, in this case the 3 egg yolk is stained black and the cytoplasm is stained 4 pink. You can look at this and say do you see egg yolk. 5 Yes. Do you see cytoplasm, pink? You say yes. 6 Then I take this next picture -- 7 Q All right. This is Exhibit 473. Let me go 8 through my preliminary thing just a moment here. Did you 9 obtain that photograph, sir? 10 A Yes, similar operation. 11 Q You saw that material through the microscope? 12 A Yes, I did. 13 Q That is Mr. Richie's tissue? 14 A Yes. 15 MR. GRAVES: I request admission of 473. 16 MR. METCALF: No objection. 17 THE COURT: It's admitted. 18 THE WITNESS: Now, if you look at this you're 19 going to see a lot of blue -- a lot of blue things. Every 20 one of these little blue things is egg yolk. And 21 surrounding that is absolutely clear space, just holes just 22 like swiss cheese. Well, I don't know how well that shows. 23 But if you look at it closely -- let's say we take this one 24 right there. Around that is nothing but clear space, no 25 pink. 55 1 Where did the cytoplasm go to? Well, it's all 2 filled with either water or some secretory material fluid. 3 What does that mean? Well, it's clear cells. And someone 4 says what do you think about clear cells. You say well, 5 ordinarily associate this with kidney. Someone says only 6 kidneys have clear cells? Well, no. I've seen it at times 7 with lung cancer. Seen it with other kinds of cancers, 8 adrenal cortex. But the fact is -- is that that makes me 9 think of kidney, at which point I would have talk to the 10 clinician. 11 This is what I do all the time, you know. I see 12 some clear cells. Is there any chance that may be primary 13 in the kidney, anything wrong with the kidney. Well, 14 that's interesting. Yet here in 1983 showed what may be a 15 cyst or tumor. I said well, maybe I think we 16 should -- I mean, my advice would be to explore that there 17 are all kinds of tests that could be done just as, for 18 example, bronchoscopy could have been done to see whether 19 there was a lung cancer, may or may not have been because 20 you can't look at the whole bronchial tree. Bronchoscopy 21 was not done, nor was autopsy. So I'm handicapped. I 22 don't have bronchoscopy. I don't have a urologic exam. 23 Way back I think in 1973 was the last there was 24 something wrong back then. Could that have been cancer way 25 back then? Well, cancer takes 20 years to develop and it 56 1 may -- I wouldn't even want to speculate. All I can say is 2 that something wrong -- anytime you have something wrong it 3 becomes a more likely organ to get cancer. 4 Q (By Mr. Graves) All right, Doctor. In this case 5 were you confronted with metastasis? 6 A Yes. 7 Q Where? 8 A Well, I have to look at my report to really tell, 9 but my recollection was that there was number of metastases 10 to bone. I believe they talked about bilateral involvement 11 of the lung. That's as far as my recollection goes, but -- 12 Q Let's deal with those for the moment. 13 A Yeah. 14 Q First of all, do you recall metastasis of the 15 bone of the right rib? 16 A Yes. 17 Q And the right femur? 18 A Yes. 19 Q Would you state whether or not, Dr. Sherwin, that 20 is typical presentation for mesothelioma? 21 A No. No, that's not. You don't -- let me put it 22 this way. When mesothelioma was first diagnosed if you 23 have metastases it was excluded. There was a 1978 24 publication on the Massachussettes General Hospital in 25 Boston. They published a series of mesotheliomas. They -- 57 1 one of their criteria was you don't have metastases. In 2 fact, they didn't even want to have the lung invaded. But 3 my own personal feelings if you get a metastasis it swings 4 you away from the diagnosis of mesothelioma. And certainly 5 bone metastasis would not be expected with mesothelioma. 6 Q Have you made a diagnosis of mesothelioma in the 7 presence of metastasis? 8 A Not in a high level of the confidence. Yes, I 9 have. In my series there were -- I can't tell you 10 specifically. But remember that the diagnosis of 11 mesothelioma is made with different confidence levels, 12 three different confidence levels. 13 Our panel made them one, two, three, then there 14 was four and five which were -- which was away from them 15 but you could accept them at three different levels of 16 confidence. If it had metastasis it generally -- if 17 everything else seemed to be strong and I felt that I had 18 to consider it, I couldn't exclude it. It was sort of 19 50/50. But I would have to get my reports out and all my 20 work to tell you, you know, itemize this. 21 I can -- all I can say is if you use the general 22 principles metastasis says it's carcinoma and you're not 23 supposed to give it your high level of confidence. I mean, 24 real proof would be to say it's restricted to pleura. 25 There's no lung involved, no invasion, and there's no 58 1 spread, then you could be confident if all of the other 2 things were there. 3 Q Doctor, let's go back to our bone cancer for a 4 moment. Has the source of that cancer been accounted for 5 in any study or in the medical records themselves? 6 A Not that I know of. 7 Q Was a biopsy done of the bone? 8 A I don't know of a biopsy that was done on the 9 bone. 10 Q Doctor, based upon your review of the medical 11 records and including the clinical progress, anything that 12 you feel is pertinent in this case, do you have an opinion 13 to a reasonable degree of medical probability as an expert 14 pathologist whether the bone cancer is metastatic from a 15 primary cancer of the pleura around the lung? 16 A Oh, I am confident this is not a pleural primary 17 cancer. This is not a diffuse malignant mesothelioma that 18 has metastasized to the bone. I'm confident of that. 19 Q Now, let's talk about prostate for a moment. Do 20 you recall from your reading of the medical records that 21 there was a prostate cancer involved? 22 A Yes. 23 Q All right. And how many years ago prior to 24 Mr. Richie's death was that? 25 A You know, I don't remember. It's a few years. I 59 1 can't -- I'll have to go look at my record. 2 Q Some years past? 3 A Some years past, right. 4 Q All right. Have you been able to rule out the 5 prostate cancer as a source of thecancer tothe pleura? 6 A Well, I -- with a reasonabledegree of medical 7 probability I don't think this is prostate. Why don't I 8 think it's prostate? Well, for a number of reasons. I 9 have suspicions about other things which are much more 10 strongly in favor of them. And secondly, I have that 11 little yardstick that says it doesn't look like the 12 prostate cancer. I have the prostate cancer biopsy, the 13 excision of materials. I looked at it. And I also know 14 that prostate cancer can have a lot of different 15 appearances. So it's -- there is the remote possibility. 16 I could be wrong, but -- 17 Q If we're looking at the tipping of the scale? 18 A If we are talking about, you know, reasonable 19 probability I would say I just don't believe -- let me put 20 it this way, that I can't exclude anything because I 21 haven't done an autopsy. I don't have a biopsy. If I 22 don't have it, I can't give you answers. All I can say is 23 I don't think it's prostate. It doesn't look like it. 24 Q Now, have you been able to rule out the prostate 25 as the possible source for the bone cancer? 60 1 A No. It's possible you can have prostate cancer 2 lie dormant for long periods of time. So that is a 3 possibility that there could be prostate -- it's not 4 uncommon for somebody to have two cancers or three cancers. 5 There are case reports of people with multiple cancers. So 6 the fact that you had a prostate cancer doesn't at all rule 7 out the possibility that he could have another. And the 8 fact that there is bone metastasis doesn't mean it can't be 9 from the original prostate. 10 Q How about the kidney? Is the kidney ruled out as 11 a possible source of the bone cancer? 12 A No, nor is the lung, nor any other cancer. 13 Q Doctor, let's speak of the size. Is there a 14 necessary size for a primary cancer to achieve in order for 15 it to metastasize? 16 A No. This -- at one time if you -- if you go on 17 the basis of majority of cases, there's a big -- we've all 18 had the experience of tiny tumors which incidentally is one 19 reason that even at autopsy if you have internists and 20 residents do autopsies and not closely supervise they might 21 miss the primary because it's small. They don't do enough 22 sections. 23 You take a pancreas it's not nine inches long or 24 something. You got to do a lot of cutting to find the 25 lesion that may be no more than a centimeter, or less for 61 1 that matter. 2 We have been -- we were taught in my training 3 program that you had to look for extremely small lesions 4 and make lots of -- we used to call it bread slicing. You 5 do fine bread slicing. 6 To give you one figure, where our own hospital 7 had 250 or so tumors of uncertain origin and two out of 8 three of those never ever were identified as to source, one 9 out of the three were by autopsy. But these -- at 17 10 percent of those autopsies they failed to find the primary 11 site. I think the reason they failed is sometimes they're 12 very small. Sometimes the primary site actually 13 disappears, nature heals it. But looking for it is 14 certainly very important. The Roseweld Park(phonetic) had 15 a 27 percent figure and I think UCLA had a figure in a 16 recently published article I believe of about half of them 17 my recollection it was eastern more than Roseweld Park or 18 Good Samaritan. So this is a common problem if you have a 19 small cancer that's missed at autopsy. 20 Q All right, Doctor. Let's focus on the lung 21 itself. The interior lung, not the pleura. Can you say to 22 a reasonable degree of probability that the lung has been 23 ruled out as a source of a metastasis elsewhere in the 24 body? 25 A No. The lung is certainly one of the prime 62 1 contenders as the source. I would certain say on the 2 evidence that's available, the clinicians themselves 3 said -- they called it undifferentiated lung carcinoma. 4 Incidentally I agree with their workup. I think 5 it's a fine workup. I wish they had done a bronchoscopy 6 from the standpoint of the possibility that something might 7 have been done. That's my own personal judgment. And that 8 I think, you know, the argument how much do you want to 9 invest in studying, in searching if even at autopsy you may 10 miss it. The answer is well, there are chances. There are 11 people cured of kidney cancers. You take kidney cancer out 12 and the lung metastases out, there are surgical resections 13 from metastatic cancer, and there are some patients who 14 require it. So I -- I think the lung is an important 15 consideration. 16 Q And in your consideration did you take into 17 account any of the findings specifically in the lungs 18 themselves? In other words, what can you point to at this 19 juncture? 20 A Well, the key thing about lung cancer -- if the 21 finding of infiltration in the lung of nodules in the lung 22 that -- when you talk nodules and infiltration in the lung, 23 even if you don't know it's a tumor, let's say you think it 24 might not be. If you have a tumor of uncertain origin you 25 have to consider the fact that any abnormality of the lung 63 1 may be hiding a cancer. And the fact is the cancer is 2 causing damage, and you've got the collapse of the lung may 3 be because you've got a tumor obstructing which causes the 4 lung to collapse but you don't see the tumor. Yes, there 5 are reports in case x-rays, many of them saying bilateral 6 infiltration where at least two nodules were found. I 7 think there's a diagnosis saying undifferentiated carcinoma 8 lung metastatic to bone and lung, or something like that. 9 So the clinicians themselves were suspicious of 10 lung cancer, and they even considered a bronchoscopy. But 11 they felt that even if it were the lung cancer, they didn't 12 think they should do much. Well, that's a judgment call 13 Q Well, apart from the immunohistochemistry, 14 Doctor, was there a clinical diagnosis made by the treating 15 physicians in this case? 16 A I'd have to look at my report because I can't 17 remember. For example, with a clinical diagnosis being the 18 surgeon's interpretation after operation, post-operative 19 diagnosis. And post-operative diagnosis, I believe that 20 says undifferentiated carcinoma of lung, carcinoma of lung, 21 metastatic primary and metastatic, or something like that. 22 Q Without going to your report right this minute, 23 do you recall any of the physicians involved in the 24 treatment of Mr. Richie indicating that the clinical 25 presentation is inconsistent with mesothelioma? 64 1 A Yes. That's another thing. They thought -- the 2 clinicians said that this -- the possibility of 3 mesothelioma was quote, "unlikely". I remember distinctly 4 the word unlikely. So the clinicians didn't think it was 5 mesothelioma, which is important to me because if this 6 diffuse part of it says to distinguish between what the 7 clinicians see, does this favor carcinoma versus 8 mesothelioma. And they themselves said that they thought 9 this was unlike mesothelioma. 10 Q All right, Doctor. Wrapping up our primary test 11 number 1 through 5, what comfort level do you feel with 12 respect to number 5 regarding the existence or 13 non-existence of primary tumor elsewhere in the body? 14 A Comfort level? 15 Q Yes. 16 A Confident. May -- I never used -- I've never -- 17 I am uncomfortable anytime I don't have more material like 18 autopsy, bronchoscopy, and so forth. But I don't have any 19 question that this is a tumor of uncertain origin. I have 20 no alternative to say I don't know where this cancer is 21 coming from, but I strongly suspect the lung. 22 If somebody said well, we've got to sign this out 23 as something, what are we go to do in the absence of 24 autopsy and whatever, I had to say well I don't think it's 25 to a reasonable medical certainty, but there's no more 65 1 evidence in favor of lung than there is in favor of kidney 2 simply because all I got for the kidney is an area that 3 shows clear cells, and the of course the radiologist's 4 statement that there's a tumor or a cyst. But for the lung 5 the clinicians themselves are identifying what they think 6 is undifferentiated lung carcinoma. 7 So I would go along with the clinicians and say 8 that's what -- I'd rank that higher than I do the kidney. 9Q 10 tests. All right, Doctor. Let's go into the other 11 THE COURT: Is this a good time to take a recess? 12 MR. GRAVES: Yes. 13 THE COURT: All right. Let's take 15 minutes. 14 Court is in recess. 15 (A recess was taken, and the following 16 proceedings occurred in the presence of the jury and on the 17 record.) 18 THE COURT: All right. You may proceed. 19 Q (By Mr. Graves) Dr. Sherwin, I'd like to ask you 20 now about the three other tests that you listed on 21 Defendant's Exhibit 475. And the first one is electron 22 microscopy. Is there anything more that you need to add 23 aside from the testimony that you've already provided 24 today? 25 A No. I still consider those non-contributory. 66 1 Q Let's go to histochemistry. What significance 2 did you attach to that and why? 3 A No significance, non-contributory. 4 Q Why is that, sir? 5 A Well, it failed to show mucin. There was no 6 mucin positively so it didn't serve the purpose. If you 7 get a negative finding it doesn't help you. 8 Q Thank you. Now, let's go to the 9 immunohistochemistry, the materials that you referred to 10 Dr. Barr and Dr. Taylor in the immunohistochemistry 11 department. Who selected the tests? 12 A Well, I selected them on the basis of the outline 13 I mentioned. I have an associate who actually checks them 14 off under my supervision. 15 Q Who is that person and what is her 16 qualifications? 17 A Well, she's a Ph.D who is in research. And this 18 is just a part-time thing that she does for me. 19 Q Approximately how many antibodies were selected 20 for review? 21 A Twenty-four or twenty-five. 22 Q And this was from the battery established by 23 Dr. Taylor? 24 A Yes. We have a routine panel. And I usually say 25 just check off the routine unless there's some special 67 1 need. 2 Q Now Doctor, let's look at immunohistochemistry. 3 In general can you state whether or not you are apt to get 4 variances between laboratories dealing with the same test? 5 A Very definitely. 6 Q Did we have such a problem in thiscase? 7 A Yes. 8 Q In what particular test? 9 A The keratin. 10 Q And what significance didyou attach to that? 11 A My first thought was we either had an antibody 12 difference -- they're all commercially available. And you 13 buy it from one company and it may be different, or you may 14 get a batch from the same company but it's a different 15 manufacturing date or some sort. So I thought there might 16 be a variation in the antibody. The other possibility was 17 that for some reason we don't have exactly the same tissue 18 that they tested. So maybe the tissue we have that changed 19 its character and the keratin was a different kind of 20 keratin. Keratin comes in all kinds of -- it's just like 21 body weight. There are different weights. And the 22 keratins come in different weights. 23 Q And as a consequence of that variance did you 24 take a further step with respect to the keratin? 25 A Yes. I just had another section processed for 1 what we call pan keratin. And pan keratin has all the 2 keratins in it. 3 Q And did you find some? 4 A Well, most all the keratins, not all of them. 5 Q Did you find some consistency then with prior 6 reports as a consequence of the pan keratin test? 7 A Well, both Dr. Taylor and Dr. Barr reported that 8 the pan keratin was positive. 9 Q Now, having reviewed the Barr and Taylor reports 10 submitted to you can you state whether or not their 11 diagnosis led you away from mesothelioma? 12 A No. They favored carcinomas. I didn't put -- 13 put any significant weight on that. I had already come to 14 my conclusion. And I just simply accepted that. It's 15 another arrow pointing a little bit towards carcinoma, 16 not -- as I say, not a lot of significance in terms of 17 weight. 18 Q Now, you are aware at that Dr. Barr's deposition 19 was obtained? 20 A Yes. 21 Q You read it last night as I believe you told us. 22 You were aware that she was subjected to cross-examination? 23 A Yes. 24 Q And as a pathologist. Dr. Sherwin, requesting an 25 immunohistochemistry opinion from somebody like Dr. Barr, 69 1 is it of significance to you to know whether or not she 2 changed her opinion as a consequence of the 3 cross-examination by way of deposition? 4 A Well anybody's change of opinion would have some 5 significance. But again, remember those are ancillary 6 techniques. And the simplest way to understand that is we 7 have an old saying that I grew up with a dog that wags its 8 tail, and tails do not wag the dog. These are the tail 9 kinds of things. 10 Q What conclusion was reached by Dr. Barr in her 11 deposition regarding her immunohistochemistry finding? 12 A As far as I can see essentially from what was in 13 her report she favored carcinoma. 14 Q And is that consistent with your opinion in this 15 case? 16 A Yes. 17 MR. GRAVES: I havenothing further atthis time. 18 THE COURT: Cross-examine. 19 MR. METCALF: Thank you, Your Honor. 20 CROSS-EXAMINATION 21 BY MR. METCALF: 22 Q Dr. Sherwin, when you cometo court andtestify 23 like you have today you generally charge for your time, 24 don't you, sir? 25 A I do, yes. 70 1 Q And what do you charge at this time? 2 A Let's see, I have a standard rate which is $200 3 an hour for consultation, 250 for deposition, 300 for 4 trial. My sleeping time doesn't count. My travel time is 5 usually on the basis of what I do. If I do nothing it's -- 6 I think it's a 50 percent figure. If I do consult on the 7 plane, then I charge that on consulation rates. 8 Q And so when you looked at the slides and what not 9 in this case for Tilly & Graves you were charging $200 an 10 hour? 11 A That is correct. 12 Q When your deposition was taken you were charging 13 $250 an hour; is that correct? 14 A To you people. 15 Q And when you're here testifying you're charging 16 $300 an hour? 17 A That's correct. 18 Q Do you have a reasonable estimate, Dr. Sherwin, 19 of the number of cases you reviewed since 1985 for 20 attorneys representing defendants? 21 A Well, I wouldn't want to rely upon, you know, my 22 casual memory. All I can tell you is -- is that the past 23 two years I've done something like 30 or 40 cases per year, 24 something in that ballpark, couple dozen, three dozen. 25 That's as best as I can tell you. It's difficult to keep 71 1 track of them because I may do a case this year that 2 somebody gave me two years ago. 3 Q Since 1985 you've given over 100 depositions in 4 cases of this type; is that correct? 5 A Well, I don't want to try to tally them. I would 6 say that's a fair estimate, but I don't want to be on 7 record as saying how many depositions. Hundreds. I know I 8 testified earlier to that number, but I don't know what 9 that number is right now. 10 Q Okay. So if it was 100 two years ago, it would 11 be more than that now; right? 12 A If it was let's say 24 to 34 in that range per 13 year. 14 Q Okay. Now, it's true, isn't it, Dr. Sherwin, 15 that in 1990 alone you prepared over 100 reports for 16 attorneys representing defendants on a review of 17 mesothelioma cases? 18 A I don't know. I can't go back to 1990. My best 19 is '91. 20 Q Well, if you saw your testimony under oath of 21 July of 1990, would that refresh your recollection? 22 A Well, if you have a record of what I said back 23 then it would help. 24 Q Do you remember the case of Edward 25 Casey(phonetic)? 72 1 A Not by name, no. 2 Q That's -- we took your deposition, and Mr. Graves 3 was there. Do you remember that, out in Los Angeles? 4 A I have a difficult time keeping track of all 5 these names because I do consults other than asbestos. And 6 we have medical students and colleagues. Names are very 7 difficult to keep track of. 8 Q Let me show you. This is the deposition of 9 Russell P. Sherwin; is that correct? 10 A That's correct. 11 Q Okay. Were you asked this question and did you 12 give this answer. Dr. Sherwin, can you give me an estimate 13 of the number of reports you have written on a review of 14 mesothelioma cases that you have done at the request of 15 attorneys representing asbestos -- or former asbestos 16 product manufacturers in 1990 so far. Well, I would say I 17 have done over a hundred. I don't believe I have done more 18 than 150, but it is possible. But I would say it is in 19 that range. Is that correct? 20 A Well it looks like so far -- sounds like reports 21 up to that time, up to 1990. 22 Q Well -- 23 A For that one year. 24 Q Question was in 1990 so far, wasn't it? 25 A Well, I don't know what that translates to. If 73 1 you ask me how many reports I make, if I do 30 to 34 cases 2 per year and you go back to '85, there may be some years 3 where there were more reports. So I can't -- I have no way 4 of knowing. But that's my -- that's my recollection. 5 Q You're also asked on page 31, can you give me an 6 estimate of the total amount that has been billed for the 7 100, 150 cases we're talking about for 1990. No, I can't. 8 Is that a -- 9 A Well, no I can't do that since I have no 10 recollection of those kinds of numbers. 11 Q Apparently you were little busier in 1990 than 12 you are today writing reports on these cases; is that 13 correct? 14 A Well, it surprises me to think that I may have 15 done 100 in that year, but it's possible. I can tell you 16 what I've done the past two years. 17 Q And when you write a report, Dr. Sherwin, that's 18 when the lawyer asked you to write one where you've decided 19 that it's not mesothelioma; right? 20 A That's correct. 21 Q So at least in 1990 you reviewed at least 100 22 mesothelioma cases for attorneys representing asbestos 23 companies and decided they were not mesotheliomas; true? 24 A Well, that's assuming I wrote 100 reports. If 25 that were true, then that would be the case. I've 74 1 written -- well, I don't even know how many reports I've 2 done this year, but I don't believe -- I don't have a 3 number. I better not try to guess. But let's assume that 4 that year had 100, then it would be 100 that were not 5 mesotheliomas. That's surprises me. But that's one of the 6 problems to answering those questions at depositions. 7 Q Now, you do not consider yourself to be an expert 8 in immunohistochemistry, do you? 9 A That's correct. 10 Q There are other peoplewho areexperts in 11 immunohistochemistry, and you defer to them when it comes 12 to interpreting immunohistochemistry; is that correct? 13 A That's correct. 14 Q And you do not consideryourself to be an expert 15 with regard to the ultrastructure of mesothelioma; isn't 16 that true? 17 A No, I would say that I am an expert for the 18 purposes I have in mind. In other words, electron 19 microscopy has different degrees of specialization. And I 20 am not an expert in the sense of doing electron microscopy 21 full-time, of the running the machines, and knowing -- 22 knowing all of the ins and outs of the electronics. And I 23 also don't do much more than say cases that refer to 24 mesothelioma. So from that standpoint -- although I have 25 in the past. I've done breast cancers as a grant-supported 75 1 project. But I have enough capability, it's like a GP 2 delivering babies. I can do the basic work. 3 Q But you've done no specific study with regard to 4 the ultrastructure of mesothelioma; isn't that true? 5 A Well, not a special report, that's correct. I 6 haven't reported any literature on mesothelioma in terms of 7 that particular subject, correct. I have on other 8 subjects. 9 Q Dr. Sherwin, just so we clear this up, you are 10 not on the United States Canadian Mesothelioma Panel, are 11 you? 12 A That's a different panel. I never was on it, 13 right. 14 Q You're not on it. That panel began in 1985; 15 right? 16 A Yes. I ended my service with the United States 17 Panel in 1985. 18 Q And that panel was disbanded then; right? 19 A Yes, that's true. 20 Q That's right. And then a new panel was formed in 21 1985, the United States Canadian Mesothelioma Panel; right? 22 A Not quite true. The Canadian Panel was in 23 existence most of the time for probably as long as the US 24 panel. When the US panel disbanded or whatever happened 25 there, the chairman died, and no one picked it up. 76 1 Dr. McCoy, who was the chairman of the Canadian panel, 2 invited some members of this panel onto his panel. 3 Q And then it became the US Canadian 4 Mesothelioma -- 5 A He so designated the US Canadian panel. To my 6 knowledge it's not a World Health Organization sponsored or 7 certified organization. 8 Q You were not invited to be on that panel, were 9 you? 10 A He did not invite me. 11 Q You've not been invited since that time, have 12 you? 13 A That's correct. 14 Q It's changed over quite a bit as a matter of fact 15 since that too? 16 A It's changed over the years, new members. I 17 think he's rotated membership considerably. 18 Q And as new members have come on that's not 19 included you, has it? 20 A Well, I think he's trying to. Well, hasn't 21 included me, correct. 22 Q Now, have you been advised on this case Dr. 23 Samuel Hammer, who is a member of the United States 24 Canadian Mesothelioma Panel, testified that in Mr. Richie's 25 case that that panel would have no difficulty deciding that 77 1 in Mr. Richie's case it was mesothelioma? Did anybody 2 advise you of that? 3 A Nobody told me that. 4 Q Dr. Sherwin, you heard of the saying out of step. 5 Do you know what out of step means when you say somebody 6 was out of step? 7 A Yeah. I was in the Army. 8 Q You have a lot of people supposed to march left, 9 right, left, right. Somebody else would get right, left, 10 right, left is out of step; right? 11 A Right. 12 Q You've actually had the opportunity, haven't you. 13 Dr. Sherwin, to have your ability to diagnose mesothelioma 14 compared directly with pathologists who have specific 15 expertise in diagnosing mesothelioma, haven't you? 16 A You know, that's not really true. I thought so 17 at first. But when I delved into it, it turned out to be 18 not the case. 19 Q I see. Well, let's talk about that a little bit. 20 Now, you discussed how in 1984 a paper was published and 21 about the incidence of mesothelioma in Los Angeles County; 22 is that correct? 23 A That's correct. 24 Q And as part of that workup you reviewed pathology 25 on cases that had been diagnosed as mesothelioma from 78 1 various hospitals in the Los Angeles area; true? 2 A Yes, over a period of about three years I 3 reviewed 164. Well, more than that, but 164 published. 4 Q Then there were other people who were authors on 5 this paper who used your review to decide whether or not 6 the incidence of mesothelioma in Los Angeles County was 7 increasing or not; isn't that right? 8 A Yes. In other words, I was kept apart from the 9 epidemiology. I simply did the pathology. 10 Q And then the epidemiologist said okay, based on 11 what Dr. Sherwin told us we'll decide whether the incidence 12 of mesothelioma in LA County going up or not? 13 A That's correct. 14 Q In other words, they were relying on the accuracy 15 of your pathology review to make their conclusions about 16 the incidence of mesothelioma in LA County; right? 17 A Well, the validity. 18 Q Right, the validity. 19 A It was a validity of diagnosis that had been 20 made. No one thought Sherwin was the only person that 21 would -- in the world who could do this. I think you 22 should understand that the timespan itself has a 50 percent 23 disagreement average. And I think it's very important to 24 realize that having been a member of the panel, of these 25 two panels, is very unusual to have a complete agreement. 79 1 And Dr. McCoy has published that, that it was unusual to 2 have all members in agreement. So there's a lot of 3 variation between members. 4 Q Let's talk about this paper for a minute. You 5 were the only pathologist in this paper? 6 A That's correct. 7 Q After your review of the pathology material you 8 decided that you would only confirm if you looked at the 9 cancers 29 percent of those as mesothelioma; is that 10 correct? 11 A That's correct. 12 Q And then the paper was written up and published 13 with the other authors relying on what you told them 14 decided that the incidence of mesothelioma in Los Angeles 15 County was not increasing; isn't that true? 16 A That's correct. Well, once they looked at my 17 figures they realized that the incidence was really not 18 increasing. That is the conclusion. 19 Q And you had confirmed only 29 percent of these 20 possible mesotheliomas; right? 21 A Absolutely, right. 22 Q And in 1985 is when you first began testifying 23 for defendants in asbestos cases; right? 24 A That's correct. 25 Q Okay, and -- 80 1 MR. GRAVES: I'll object to the form of the 2 question, Your Honor. 3 THE COURT: Overruled. 4 THE WITNESS: Well, yeah. I began living my 5 litigation is really what that means. My first litigation 6 was in 1985. 7 Q (By Mr. Metcalf) In 1985 is when lawyers 8 representing asbestos companies first began asking you to 9 help them out in cases where people had gotten sick or died 10 from mesothelioma? 11 MR. GRAVES: Objection to form. 12 THE COURT: Sustained. 13 THE WITNESS: Well, the other people -- I had 14 plaintiffs ask me too. Initially plaintiffs asked me. I 15 think my low frequency discouraged them. 16 Q (By Mr. Metcalf) You know of the Defense Research 17 Institute, don't you? 18 A Yes. 19 Q That's a group of lawyers that, for example, 20 represent asbestos companies in cases like that; isn't that 21 right? 22 A That's correct. Well, I don't know much about 23 it. I was invited to give a talk, one of my presentations. 24 Q That's a lawyer group and not a group of doctors; 25 right? 81 1 A Well, I was invited among a lot of other 2 physicians, including Dr. Churg. 3 Q That was in 1985 when you talked to the Defense 4 Research institute, isn't it? 5 A That's correct. 6 Q And you talked about mesothelioma at that time; 7 right? 8 A Yes. 9 Q Now, in 1986 there was another paper written up 10 and published that discussed these same LA County 11 mesothelioma cases; isn't that right? 12 A There were two papers. 13 Q Well, let's talk -- 14 A 1986 was one, and there was a followup. x86 had 15 two papers. One was a followup on the one you're talking 16 about. 17 Q Let's talk about the one, Results of Pathology 18 Review of Recent US Mesothelioma Cases. Remember that one? 19 A Yes. I can't -- I'd have to look at it to tell 20 you what's in it, but I remember the article. 21 Q And in that paper there were two pathologists 22 with specific expertise in diagnosing mesothelioma; right? 23 A There were five of us. 24 Q Right. And two of them were identified as 25 Dr. Wagner and Dr. Hochholzer as having specific expertise 82 1 in diagnosing mesothelioma; right? 2 A All five panelists had expertise. They were 3 called referees. There was a panel of five of us. They 4 ran into trouble with the panel and decided to narrow it 5 down to two people. 6 Q Dr. Wagner and Dr. Hochholzer were the referee 7 pathologists; isn't that right? 8 A That's right. 9 Q And in cases of questions then they looked at the 10 available tissue material, didn't they? 11 A Material I supplied them from -- that I supplied 12 them and other people supplied them. 13 Q Sure. 14 A That's correct. 15 Q Now, the 1986 paper again discussedwhether or 16 not there was an increasing incidence of mesothelioma in 17 Los Angeles County? 18 A That's correct. 19 Q The conclusion in 1986 is that there is an 20 increase in incidence of mesothelioma in Los Angeles 21 County; right? 22 A Based on the registry not -- that's important to 23 understand that article says because the panel had so much 24 disagreement we had to revert to the registry diagnosis. 25 You read that. And in other words, they set out to give 83 1 the panel -- the panel didn't work. We were so much in 2 disagreement, so they finally got the referees. And their 3 comments in this first paper was as follows: we think that 4 even though we -- using registry, diagnosis registry, means 5 exactly the cases I look at, even though we're using the 6 registry we think it's -- it's valid because the two 7 referees agreed on the higher percentage than -- 8 Q -- you did? 9 A Than I did. But there was also other New York 10 State and veterans cases as well. However, you should know 11 this, I went up to Dr. Spirtas, who was a director, and I 12 said I would like to compare their results with my results. 13 And I found out that they weren't available. And the 14 reason they weren't available was when they disagreed they 15 went up to a double-headed microscope. That's in that 16 report. 17 Q That's in the other 1986 -- 18 A It's in the other report. How they did it, they 19 went into a double-headed microscope and then they hashed 20 it out, and then they reached one diagnosis and they threw 21 away their disagreement. So how can you compare a 22 consensus or that conjoint agreement with me? I'm an 23 independent person. I don't know how Dr. Hochholzer and 24 Dr. Wagner would have agreed on my cases. First of all, 25 they had -- they only had several days to go through 200 -- 84 1 no, 164 cases that I took two and a half years or three to 2 do. I supplied them with one slide that I selected. They 3 had access to the others. As far as I know they never did 4 anything but tearing up their agreement -- I mean, tearing 5 up their disagreement. Then you're coming up to me and 6 saying they agreed that these were acceptable when in fact 7 there is no such documentation. And that's a matter of 8 record. 9 Q Finished? 10 A Well, I think it's an important thing to say. 11 Q Good. In the 1986 paper 64 percent of the Los 12 Angeles County mesotheliomas were determined to be 13 mesotheliomas; correct? 14 A On that conjoint basis by those two referees, not 15 by the the panel. 16 Q And at that time both Dr. Hochholzer and 17 Dr. Wagner were on mesothelioma panels; right? 18 A They were -- no, there were five of us on the 19 panel. They were there. 20 Q Dr. Wagner was a member of the European 21 Mesothelioma Panel in 1986; right? 22 A Well, I'm not sure about that. 23 Q Dr. Hochholzer was member of the US Canadian 24 Mesothelioma Panel in 1986; right? 25 A Well, that is probably true, but I can't -- I 85 1 can't tell you. 2 Q When they reviewed LA County cases they decided 3 that instead of 29 percent being mesothelioma, 64 percent 4 were mesothelioma; right? 5 A Essentially doubled it as a conjoint agreement, 6 correct. But that data was not used in that report. They 7 reverted to the registry and they disregarded the 8 panelists. They cut us from five to two. I'm only telling 9 you that because what you're saying is not a fair 10 comparison. 11 Q The comparison is that they were able to confirm 12 more than twice as many mesotheliomas as you were; isn't 13 that true? 14 A As a conjoint thing. But you see, the purpose of 15 a panel is just like the jury. They have got to come to an 16 independent opinion and then say what do you think. You 17 can't -- they're not supposed to discuss the case among 18 each other. They discuss the case among each other now. 19 That's not coming to an independent opinion. I did it 20 totally independently. 21 Q Now, in the other paper in 1986 they specifically 22 discussed the method of the pathology review, didn't they? 23 A Yes, they did discuss it. It's a very extensive 24 discussion, very complicated. 25 Q And in that case there was a meeting where you 86 1 all got together, Dr. Wagner, Dr. Hochholzer, you, and two 2 other local pathologists; right? 3 A That's correct. 4 Q And you reviewed each other's materials? 5 A Not true. 6 Q Well, you reviewed your materials and you 7 reviewed your -- 8 A No, that's not true either. There were 74 9 problem cases that Dr. Wagner and Dr. Hochholzer 10 identified. We only reviewed those cases they thought was 11 the problem. 12 Q Well, those problem cases you only confirmed the 13 diagnosis of mesothelioma in 20 percent, right? 14 A They're problem cases. You can't compare that to 15 a general series. 16 Q That's right. And Dr. Hochholzer and Dr. Wagner 17 even after meeting with you and reviewing them you only 18 confirmed 20 percent; correct? 19 A I don't -- I don't remember. That sounds about 20 right. 21 Q And they confirmed about 65 percent of them? 22 A They're higher. A panel, if you have a 23 50 percent average there's going to be some people at 30 24 and there's going to be some people at 80. They're at the 25 80s. 87 1 Q In fact, of the five pathologists, there's no 2 question that you were the low man on the totum pole in 3 terms of confirming mesotheliomas; right? 4 A Well, I don't think -- I like to think of it as a 5 person sticking to the science of it and looking for proof 6 and documentation. I think that's the difference. I think 7 I had structured criteria and followed them. 8 Q Or maybe you had a different understanding about 9 the diagnosis of mesothelioma then Dr. Wagner and 10 Dr. Hochholzer; is that correct? 11 A My understanding is what's spelled out in this 12 chart. You people have to decide how that conforms. 13 Q Now, in this case there were three other board 14 certified pathologists who have testified. Are you aware 15 of that? Dr. Giorno from Mercy Hospital testified that in 16 his opinion it was mesothelioma; is that correct? 17 A Well, I understand there were three others. 18 Q Dr. Hammar testified it was mesothelioma, 19 Dr. Abraham. 20 A Correct. 21 Q Other than yourself have you seen a report from 22 any other board certified pathologist who reviewed that 23 material who decided it was not mesothelioma? 24 Q How about Dr. Case? Is he -- I don't know his 25 background, but he certainly reviewed the materials. 88 1 Q Well, we'll talk about Dr. Case. 2 A I don't know about Dr. Case, but I remember there 3 was a report by him. Numbers -- numbers are not the same 4 as evidence. 5 Q That's right. You might have 50 people marching 6 in line left, right, left, right, and one person is doing 7 right, left, right, left. But that's not evidence; right? 8 A It's the relative convincing force of the 9 evidence, not the number of witnesses. That's my theory. 10 Q Now Dr. Sherwin, your opinion in this case is 11 that Mr. Richie had tumor from someplace you don't know 12 where; right? 13 A That's correct. 14 Q You are quite confident, however, that it's not a 15 melanoma; right? 16 A Yes. 17 Q That it's not prostate; right? 18 A Yes, reasonably confident. Without an autopsy I 19 have ;-- it's difficult. But I would say yes. 20 Q Now, do you remember in looking at the medical 21 records, Dr. Sherwin, whether or not a Dr. Mark Barter was 22 Mr. Richie's primary physician? 23 A I'm very hard on remembering names. I can't tell 24 you that. But if you look through the reports, some of 25 these are identified and some aren't. I'd be glad to look 89 1 at the report. 2 Q Well, let's take a look at what Dr. Barter said 3 when Mr. Richie finally went into the hospice to die. He 4 had a discharge diagnosis; right? Are you familiar with 5 what a discharge diagnosis is? 6 A Yes, I'm looking at it. I'm reading it. I'm 7 trying to see what he's saying. 8 Q Well, what he's saying is he had mesothelioma 9 presenting in January, 1987 with malignant bilateral 10 effusions; is that right? 13 A Well, that's his comment, right. 12 Q And he said he had prostatic carcinoma in June of 13 1983; right? 14 A Well, correct. 15 Q Well-differentiated. He had sarcoidosis of long 16 standing; right? 17 A Yes. 18 Q He had hyponatremia? 19 A That's what he said. 20 Q Probably had to do with the cancer and the 21 treatment to the cancer; right? 22 A I can't second guess it. 23 Q He had a tonsillectomy and adenoidectomy; right? 24 A Yes. 2,5 Q He had a hernia repair? Cataracts? 90 1 A Everything you're reading is right. 2 Q Is there anything in here about kidney disease at 3 all? 4 A Not in his report. 5 Q Is there anything in there about lung cancer? 6 A Not what you've just read. 7 Q So assuming Dr. Barter was Mr. Richie's primary 8 physician, he didn't even consider that Mr. Richie had 9 kidney disease; right? 10 A Well, I don't know that. In that report he 11 doesn't put everything he thinks down in this discharge 12 summary. From that one statement it doesn't mention 13 kidney. I have no idea whether he discussed that problem 14 with anybody or not. 15 Q Other than in 1983, the statement on a bone scan 16 of questionable tumor or cyst in superior pole of right 17 kidney, is there a mention in his records that you saw 18 anywhere about kidney disease? 19 A Well, that's the only record I found that 20 indicated to me a suspicion of something wrong with the 21 kidney that might be. That's the only record I found. 22 Q That was in 1983; right? 23 A In terms of information that's -- 24 Q That's it. 25 A That's a finding as opposed to an opinion? 91 1 Q They found something that was questionable. 2 A Well -- 3 Q That's what it says? 4 A This whole case is questionable. 5 Q I see. Now Dr. Sherwin, if the gross appearance 6 of the tumor was enough to make the diagnosis you 7 pathologists could throw your microscopes away; right? 8 A Well, the statement I would like better is no one 9 should make the diagnosis with any one criteria. 10 Q Well, let's talk about the gross appearance of 11 the tumor in Mr. Richie's case. The truth of the matter is 12 that in mesothelioma can be a uniform rind of tumor. But 13 it has other appearances, doesn't it? 14 A You'll have to tell me what they are. 15 Q Okay. Well, isn't it true, sir, that total 16 encasement of the lung by tumor is a feature of lung cancer 17 as well as mesothelioma? 18 A Oh, well lung cancers can have total encasement 19 if that's what you're asking. Kidney cancer, pancreatic 20 cancer, a lot of other cancers. 21 Q Total encasement doesn't tell you whether it's 22 mesothelioma, whether it's lung cancer, whether it's some 23 other kind of cancer? 24 A That's one of the real reasons why you have to do 25 an autopsy in a case like this for sure if you have 92 1 encasement, which you don't have. 2 Q The absence of total encasement of the lung, 3 however, doesn't tell you whether it's mesothelioma or not 4 either, does it? 5 A Oh, there's no relationship to those two 6 statements. Carcinomas ordinarily don't encase the lung. 7 Q Isn't it true, sir, that in your opinion 8 encasement of the lung can be used to differentiate lung 9 cancer from mesothelioma? Isn't that true? 10 A Well, it's true that -- well, if you get back to 11 my original statement, no one criteria by itself can be 12 used alone. I mean, you can't use any one criterion by 13 itself. 14 Q Do you remember doing a workup for a lawyer at 15 Boble & Gates(phonetic) in Portland, Washington on a 16 Mr. Phillips? 17 A No, but I may very well have done that. 18 Q Does that look like a report you sent to the law 19 firm of Boble & Gates in Portland? 20 A Yeah, it does, correct. That's my report. 21 Q In this report you say here, don't you, that 22 while there is encasement of the right lung, apparent 23 obliteration of the pleural space, this is a feature of 24 lung carcinoma as well as diffuse malignant mesothelioma; 25 right? 93 1 A That's an absolutely correct statement. 2 Q Okay. All right. 3 A In fact, as I mentioned there were some entities 4 that go by that name pseudo mesothelioma carcinoma of the 5 lung. But there are other forms that encase the lung as 6 well as incidently even local mesotheliomas can do that 7 eventually. So that's an absolutely correct statement. 8 Q When you, for example, in the Phillips case found 9 total encasement of the lung you still concluded that 10 Mr. Phillips didn't have mesothelioma; right? 11 A I have to read the report, but I assume that's 12 what it says. But that's very logical. In other words, 13 what it's saying is that you can't use any one criteria by 14 itself. These are not absolutes. There is encasement. 15 That can be produced by other cancers. This is one of the 16 reasons why you have to do an autopsy if you really want a 17 high level of confidence. But anyway, we don't have 18 encasement. 19 Q That's right. Now, Dr. Hammar when he was here 20 talked about Dr. Henderson and some other folks that wrote 21 a book on malignant mesothelioma. You're familiar with 22 this book, aren't you? 23 A Yes. I have a copy. 24 Q And these are respected pathologists; isn't that 25 true? 94 1 A Well, I have no way of judging what you mean by 2 respected. People who write and people who have experience 3 are authoritative. That's the word I use if you have 4 experience and you write papers on it. And they're 5 generally published in peer review journals and it's 6 authoritative. 7 Q Now, it's true, isn't it, sir, that mesotheliomas 8 typically have a nodular appearance? 9 A There are -- there are opinions saying that you 10 can find nodular presentations and you can find studies but 11 they're anecdotal. They present these implying that 12 they're early stages. But no one has ever published a 13 scientific paper saying that they have identified a diffuse 14 malignant mesothelioma before it became diffuse. In other 15 words, I can't make a diagnosis of a diffuse malignant 16 mesothelioma unless it's diffuse. If you're going to show 17 me the first picture in there, I would say that's a good 18 example of it. 19 Q It's an entire book on mesothelioma; is that 20 right? 21 A That's correct. 22 Q And the first picture in this book on 23 mesothelioma? 24 A Looks to me like metastatic nodular cancer. 25 Q That's right. This is in Dr. Wagner's -- 95 1 A Yeah. 2 Q What is this and what does he say here? Says 3 this is a malignant pleural mesothelioma? 4 A Well, he says so, you bet. That is an anecdotal 5 statement. 6 Q Why would he pick that one to illustrate the 7 first thing in the book? 8 A Very surprising to me because almost every text 9 book you will look at you pick any text whether it's 10 Dr. Churg or whether it's Sam Hammar or whoever, they'll 11 show you a picture of a rind of cancer encasing the lung. 12 They don't show you that picture. That's a classical 13 picture of metastatic carcinoma to the lung. And I'm 14 absolutely surprised that he would put that in there. 15 Q So again, Dr. Wagner, who has probably written 16 more about mesothelioma than anybody in the world. Has 17 selcted this/, but you would disagree that this is 18 mesothelioma; right? 19 MR. GRAVES: Object to form. 20 THE WITNESS: You don't think I'm entitled to -- 21 THE COURT: Overruled. 22 THE WITNESS: -- question people who write a lot? 23 Q (By Mr. Metcalf) Absolutely. 24 A Well, then I'm questioning it. I am saying that 25 kind of nodular picture -- this in my experience is typical 96 1 for carcinoma. I have seen that over and over again with 2 carcinoma. Conversely, the pictures you will see in every 3 standard text book, you pick out any other text book and 4 you'll see that they all show a thick rind. And that's how 5 it's described, a rind of cancer that encases, nodules. 6 McCoy has specifically said in his original one of his 7 article nodularity by and large favors carcinoma. A 8 sheetlike thickening favors mesothelioma. That's what I go 9 by. 10 Q Okay. Other people may have a different view of 11 it; is that correct? 12 A Well, McCoy is the chairman of that US Canadian 13 panel. That's what he said. 14 Q We'll talk about that more in a minute. 15 Dr. Wagner, however -- 16 A Who do I believe? 17 Q Dr. Wagner, however, selected this picture to 18 illustrate the very first picture of mesothelioma in this 19 book; right? 20 A Yes. 21 Q And that picture from Dr. Wagner shows a nodular 22 appearance to it, to a mesothelioma; is that correct? 23 A Well, that's what he's saying. And he's not the 24 only one who has said that. Other people have claimed that 25 as an early stage of diffuse malignant mesothelioma because 97 1 if you look at that picture there's a lot of pleura that's 2 free of cancer. 3 Q Right. That's right. So -- 4 A No, it's not a diffuse cancer by definition. 5 It's not diffuse by definition. 6 Q Doesn't fit your definition of diffuse? 7 A Doesn't fit the definition of diffuse. It 8 doesn't fit the definition of encasement. How much -- how 9 much covering do you want to make a diffuse -- 10 Q Well Dr. Wagner apparently doesn't think it needs 11 to cover every square centimeter of pleura. 12 A Well, it isn't every square centimeter. There's 13 a lot of square centimeters. And I would disagree strongly 14 with that. 15 Q You have a different definition of diffuse? 16 A I'm not the one who has the different definition. 17 I've cited all these text books, and I'm saying if you 18 consult anyone of these standard text books, and there must 19 be a dozen of them, you will find a picture of a rind. You 20 will see this in that text book, you'll see in Dr. Hammar's 21 book, you will see it in Dr. Churg's book, you'll see it in 22 standard pathology text books. It's a rind of cancer. 23 That's the hallmark of a mesothelioma. 24 Q Let's see what Dr. Hammar says in his chapter in 25 his book on Pulmonary Pathology. Does he say here that in 98 1 early stages of some mesotheliomas they can be associated 2 with nodular excrescency of tumor? 3 A Yes. That's his speculation in the early stages. 4 We're not talking about early stages. We're talking about 5 diagnostic stages. We are saying you can't diagnose 6 diffuse malignant mesothelioma unless it's diffuse. And if 7 you think it's early, you're speculating. There is no 8 scientific papers showing the early stage of mesothelioma. 9 Q Well -- 10 A Diffuse. 11 Q We'll keep talking about that. 12 A Yeah. 13 Q Here is the picture Dr. Hammar illustrated in his 14 book with nodular excrescence of tumor? 15 A For the early stages. But look at what he shows 16 for the classic anecdotal early stages. You can't confuse 17 the exception and speculation with what has been 18 classically the presentation of a diffuse malignant 19 mesothelioma. 20 Q Well, is it your view that early mesothelioma 21 looks the same as mesothelioma at autopsy? 22 A There are two early -- one is the development, 23 and that's what we're talking about. The autopsy can be 24 encasement for any number of reasons. I mentioned, for 25 example, local cancer or carcinoma can encase a lung simply 99 1 by spreading. So you have to make the diagnosis on the -- 2 incidently we're talking about arrows against your 3 confidence level is high if it is a rind of cancer. If you 4 have nodular presentations and you're claiming it's an 5 early stage you're speculating and your confidence has to 6 be slight. That's what getting us into muddied areas of 7 confusing the classical presentation with the early 8 speculation. 9 Q You're familiar with Dr. Churg's book? 10 A Yes. 11 Q Dr. Churg is a current member of the current 12 mesothelioma panel? 13 A Yes. Are you going to show his typical picture 14 of a mesothelioma? 15 Q Let's see what he says about early disease seen 16 surgically. 17 A Okay. This again is a speculation. 18 Q Okay. Dr. Churg is speculating too; right? 19 A He is. There's no documentation on this 20 anecdotal. You don't see a citation saying here are a 21 series of cases at which we saw this and then follow it up. 22 Q He says here in early disease seen surgically the 23 tumor appeared as scattered nodules over other pleural 24 surfaces. 2.5 A The first part says it has been suggested that 100 1 pleural mesotheliomas start on the parietal surfaces, but 2 in early disease seen surgically the tumor may appear as 3 scattered nodules over either pleural surface. I think 4 it's important to say this whole thing is talking about a 5 speculative area. 6 Q That's your opinion? 7 A Well, he said early. I didn't put that in there. 8 He's talking about early. There's no documentation for 9 early stage. 10 Q Well, apparently you think Dr. Churg just fished 11 this thing out of a dream one night, or that's what he 12 says? 13 A Anecdotal comments or whether it's flying saucers 14 or whatever are very common. A lot of people have personal 15 experience with drug treatments. That's why do you 16 controlled studies. That's why you have to have placebo 17 trials. That's why you have to get the national institutes 18 in and have a peer review, say let's verify this. The 19 early stages have never been validated. 20 Q Dr. Joe Corson is a pathologist who is a current 21 member of the US Canadian Mesothelioma Panel; right? 22 A Yeah. 23 Q Who is -- Dr. Corson has published and written 24 extensively on mesothelioma? 25 A Yes. I've seen his picture of an early stage. 101 1 Again, it's -- these becomes what is known as a -- as a -- 2 as a common fashion. Again, there's that magic phrase, 3 early stages. 4 Q That's right. 5 A Let me qualify that. If I gave that to a medical 6 student or if I were examining somebody and I showed them 7 that picture and they said that was an early stage of 8 mesothelioma and not carcinoma, I'd flunk him. 9 Q Okay. 10 A So what they're saying is that they think that 11 this might be -- be -- be what goes on into a diffuse. 12 Nobody knows. But that is the picture of metastatic 13 carcinoma. So why would you choose an early stage of 14 mesothelioma over metastatic carcinoma? Show that to any 15 pathologist without telling them what it was called. And 16 if they don't say that looks like metastatic carcinoma, I'd 17 be very surprised and very concerned. 18 Q Dr. Corson is not a medical student. He's a 19 member of the mesothelioma panel; right? 20 A But he's trying to tell you we don't know where 21 this comes from. He'd like to explain to you what he 22 thinks is an early stage. That's not what he's telling you 23 a mesothelioma is, and he's also not denying that that's 24 carcinoma. He's saying that we really don't know, but this 25 is what he thinks is an early stage. 102 1 Q What does Dr. Corson say on page 179 of this 2 book? Just read along with me. 3 The gross features of DMM have been well 4 described in the early stages of DMM of the pleura 5 proliferating malignant mesothelial cells form tiny gray 6 plaques or nodules on the parietal and visceropleura which 7 then collates forming larger nodules. Is that what it 8 says? 9 A Yes. You know, citations on gross features that 10 have been described, but you don't see a lot of citations 11 coming after this one. 12 Q Well, do you think maybe the citations saying 13 well described include that? 14 A Definitely not. 15 Q Okay. 16 A Definitely not, unless it's an anecdotal one. 17 Like I said, there is no scientific report saying here are 18 so many of these early stages. Well, I know this, if you 19 just look at the recent literature on chest surgery where 20 the surgeon will say that we don't think -- we don't -- for 21 example, there's a very recent article stating that 22 treatment surgically of mesotheliomas is probably ever 23 going to be useful because we think at the very outset 24 they're already multi-focum we believe at the outset. But 25 that's again, we believe. So we're talking two different 103 1 things. I don't understand why that isn't clear. 2 Q So far Dr. Haxmnar is speculating about 3 nodularity, Dr. Corson is speculating about nodularity in 4 early mesothelioma, Dr. Churg is speculating about 5 nodularity in mesothelioma. That's your view? 6 A We went through exactly the same thing with 7 breast cancer. Everybody said you had to have a radical 8 mastectomy until someone named Rose Cushner(phonetic) says 9 I don't care what those doctors say. You don't have to 10 have a radical mastectomy. And California passed a law to 11 tell these doctors, that they've got to give women an 12 option. And there are other procedures besides radical 13 mastectomy. 14 Doctors can fall into a system of belief that 15 gets promulgated without the evidence. And the evidence 16 says you don't have to have a radical mastectomy. But 17 doctors are very reluctant to follow that kind of evidence. 18 They don't -- they go by this common belief. They all say 19 this is the way to do it. This is what we believe. And 20 you have to forget a Rose Cushner coming along and say 21 what's the evidence. And when they went into the evidence 22 they found somebody out of step, a British surgeon who said 23 you can do lumpectomies and radiation and get just as good 24 results. He was out of step. Now he's in step of course. 25 Q Now, would you agree, sir, that a surgeon in a 104 1 particular case, surgeon provides clinical treatment; is 2 that right? He's one of the clinicians that you talked 3 about earlier? 4 A That's correct. 5 Q And in this case did you see in the manner in 6 which the clinicians described the gross appearance of 7 Mr. Richie's chest cancer? 8 A Yes, I did. And I have in front of me 2/7/87 9 operative report. And here post-operative diagnosis is 10 probable malignant metastatic tumor. So I thought it was 11 metastatic tumor, which is exactly what I would have 12 expected. 13 Q What else does it say? Does it say pending 14 further studies? 15 A Well, that's his post-operative diagnosis. When 16 he looked at that he said in his experience that kind of 17 plaque formation, whatever he was seeing, nodules looked 18 like metastatic cancer. And that's what I'm saying, it 19 looks like metastatic cancer. I accept that. 20 Q Well, let's take a look at it and we won't have 21 to argue about it. 22 A Okay. 23 MR. GRAVES: What's the date, please? 24 MR. METCALF: This is if February 7, 1987 2.5 previously marked as Plaintiff's Exhibit 16-1. 105 1 Q (By Mr. Metcalf) With the thorascope, that's a 2 procedure that goes in your chest to look around; right? 3 A That's correct. 4 Q One millimeter to 20 millimeter plaques were 5 encountered on the visceropleura, parietal pleura, and 6 diaphragm. A number of biopsies submitted for examination 7 and on frozen section found to be compatible with an 8 anaplastic malignant tumor. The type will be determined 9 with further permanent stains. That what it says? 10 A He said he was deferring to the pathology, but 11 his opinion was metastatic cancer. Probable malignant 12 metastatic tumor. That's what we're -- that's what that 13 whole diffuse is all about. 14 Q And he says the type will be determined with 15 further permanent stains; right? 16 A Pathology can't tell them what the tumor looks 17 like. He's the one who tells the pathologist this looks 18 like metastatic disease. He's waiting for the pathology to 19 tell him what kind of cancer it is. And in their first 20 report was anaplastic carcinoma. But the pathologist is 21 relying on that surgeon to tell him what that gross 22 appearance looked like. Did it look like encasement or did 23 it look like metastasis. And he said it looked like 24 metastasis. I accept that. 25 Q Well, in fact it looked like the picture in 106 1 Dr. Corson's book and in Dr. Hammar's book, didn't it? 2 A Thank goodness he didn't call it early stage of 3 mesothelioma. I think it's his diagnosis based upon his 4 experience was much more rational. 5 Q Did you see the March 12, 1987 surgical report? 6 A Yes. 7 Q And does Dr. Parker, the surgeon there, describe 8 what the gross appearance of the tumor is? 9 A Well, yes. At that time he says grossly this 10 would be consistent with mesothelioma. And I think he's 11 being influenced by the pathologist. I think the answer to 12 this is the clinicians are right. The pathologists have 13 taken them down the wrong track. 14 Q Okay. 15 A I think the clinicians are right. 16 Q Doctor Parker is one of clinicians; right? 17 A Well, we're talking about the clinician who looks 18 at the gross examination. The treating physician did not 19 look through the thorascope. 20 Q So the surgeon who looked at it said -- 21 Dr. Parker, March, 1987, grossly, this would be consistent 22 with mesothelioma; right? 23 A That's his statement at this time. 24 Q Okay. And you agree with that? 25 A No, I don't agree with that. I think he's being 107 1 influenced by prior pathology diagnoses. 2 Q So you disagree? You think the clinician then is 3 wrong here; is that right? 4 A No. He's saying if you fellows think this is 5 meso, then I'll go along with it. I thought it was 6 metastatic. That's what he's saying as best as I can tell. 7 Q Does he refer to the pathology in this here? 8 A Well, only a pathologist can make a diagnosis of 9 mesothelioma. So if he thinks it's mesothelioma, I would 10 assume that between the time he thought it was metastatic 11 and the time of this operation he's been influenced to say 12 well if you people are thinking mesothelioma, then it could 13 be. I -- now, I don't read his mind. All I'm saying is 14 that presentation that he initially saw -- your best chance 15 is what did he see initially. And I go by his metastatic. 16 Q Do you want to look at that? 17 A Plus all the others. 18 Q Do you agree with Dr. Barter when he says the man 19 had mesothelioma? 20 A Who was Dr. Barter? 21 Q That's Mr. Richie's primary treating physician. 22 A Well you see, only a pathologist can put all the 23 pieces together. So if you don't have a pathologist's 24 interpretation you're not anymore than I can give 25 immunohistochemistry expertise. Those are the people who 108 1 give you an answer. The only person who can tell you 2 whether this is a mesothelioma or not or render a diagnosis 3 with authority is going to be a pathologist. 4 So you can/t look at a clinical interpretation. 5 What you can look at is a descriptive, objective 6 interpretation. And that descriptive, objective 7 interpretation says this looks to me like metastatic 8 cancer. Plus you've got all this other which says 9 carcinoma. We want to do a bronchoscopy because we suspect 10 lung cancer. So lung cancer is very strongly in 11 contention. 12 Q Well, when the pathologists -- Dr. Giorno was the 13 pathologist at Mercy Hospital that looked at the tissue 14 taken through the thorascope. He looked at it and he 15 concluded what, that it was mesothelioma? 16 A He looked at it through the thorascope? 17 Q No, he looked at the tissue that was taken. 18 A Oh, okay. That's a different statement. 19 Q During the thoracoscopy, and he decided it was 20 mesothelioma; is that right? 21 A Well, pathologists -- the panel is there to see 22 how valid these doctors are. If he makes that diagnosis, 23 he makes it. I mean, we don't know the basis -- what is 24 the evidence upon which he made the diagnosis, what 25 criteria did he use and did he satisfy the criteria we just 109 1 displayed, did he think it was diffuse, did he think it was 2 biphasic, did he think it was tubulopapillary, are right 3 down the line and say how did this fit. And if you check 4 those and find that they all favor adenocarcinoma, why 5 would you come to a diagnosis of diffuse malignant 6 mesothelioma? That's the surprising part. So it's opinion 7 without evidence. 8 Q In other words, you disagree with what Dr. Giorno 9 decided; right? 10 A Well, not by opinion. I'm presenting evidence to 11 say here is my interpretation, here is the evidence from my 12 interpretation. And incidentally, I have much more than 13 evidence in my report than was on that -- on that listing. 14 I think it's very important that these various statements 15 that I make, you know, being mentioned by somebody 16 somewhere down the line. 17 MR. METCALF: Your Honor, this my go faster if 18 Dr. Sherwin and I could have some agreement that I'd ask 19 questions and he would answer the ones I asked. 20 THE COURT: I think that's an appropriate 21 objection. 22 MR. GRAVES: I think the questions are 23 impossible, Your Honor, to answer. 24 THE COURT: The reason I'm saying that is there's 25 some old law about the appropriate lawyer to make the 110 1 objection to a non-responsive answer. And the old law says 2 it's supposed -- it's only the entitlement of the 3 questioning examiner. But I -- I was sort of thinking 4 maybe -- how much more time do you have? 5 MR. METCALF: I'm not sure, Your Honor. Maybe 30 6 minutes, something like that. It would be appropriate to 7 break here. Could be a little longer. 8 THE WITNESS: Is there any possibility of going 9 on because I've got a commitment this afternoon? And to 10 hang around and lose that time is very -- it's very hard on 11 my schedule. 12 THE COURT: Well, let me ask the jury. Anybody 13 who feels we could try to finish this witness before lunch 14 and take lunch afterwards? Is that okay? 15 THE WITNESS: I very much appreciate that. 16 Q (By Mr. Metcalf) Dr. Sherwin, what was described 17 by Dr. Parker when he did the thorascopy in February of 18 '87 -- March of '87 is exactly what you would expect to see 19 mesothelioma looking like on a thoracoscopy; isn't that 20 right? 21 A Well, as I quoted that February thoracoscopy in 22 which -- let me get it out again, in which he said 23 post-operative diagnosis probably malignant metastatic 24 tumor, that is not what I expect to find with mesothelioma. 25 Q What he described in terms of the pleural -- the 111 1 nodule tumor on the pleura is exactly what you would expect 2 to find when you look through the thorascope in somebody's 3 chest who has mesothelioma; right? 4 A No. I expect to see a rind of cancer encasing 5 the lung. That's what I would have expected to see. You 6 wouldn't be able to see the lung. Or let's put it this 7 way, you certainly shouldn't be able to see most of the 8 lung. 9 Q Now, in this book that we referred to on 10 asbestos-related malignancy there's an entire chapter on 11 thorascopy; isn't that right? 12 A Well, I don't know. I don't memorize the 13 contents. But I'm sure that they've gone into exploration. 14 Q Let's take a look at what these physicians say 15 about what you expect to see on thorascopy. Looking at 16 page 306, in 57 of the 62 patients that gross pattern of 17 tumor involvement was consisted of nodules and masses that 18 were malignant pleural thickenings or frequently both. So 19 here you've got almost 90 percent of the ones they look at. 20 This tumor was nodular on thorascopy; right? 21 A Well, that's what they say. But of course that's 22 not -- that's a typical picture for metastatic carcinoma. 23 I can't tell you what the clinicians are basing this on. 24 That's their statement. That's what they claim. But 25 remember, we're including a lot of diagnoses in of 112 1 mesothelioma, at least 50 percent of the diagnoses of 2 mesothelioma if you go by the pages are erroneous. So you 3 have to say that probably half of these are -- are not 4 mesotheliomas to begin with because they weren't validated. 5 So I can't -- all I can tell you is when you have nodules 6 you're talking carcinoma. When you have sheets you're 7 talking mesothelioma. For them to say that is misleading, 8 there's a lot of misleading literature. 9 Q Okay. Now, you go on to say that nodules and 10 masses observed in a total of 40 patients were small, 1 to 11 5 millimeters in diameter. Approximately one-fifth of the 12 cases form a collection of small granulations represent 13 early stage in mesothelioma, and the remaining four-fifths 14 of the cases the nodules were larger than 5 millimeters in 15 diameter. So again, they're talking about a picture that 16 looks just like this, aren't they? 17 A Well, I -- I can't read into their minds, but it 18 sounds to me like as though most of what they're talking 19 about is metastatic carcinoma. 20 Q Well, they talk about that, don't they? They say 21 the grand amount, 3 percent of cancers to the pleura of 22 metastatic to the pleura have a similar appearance, 23 3 percent. Isn't that what they say there? 24 A Well, I can read that just the same way you read 25 it. But can't we go back to what the surgeon himself said. 113 1 He thought it was metastatic. And why do we want to look 2 at somebody else's general treatment. Here is a specific 3 case. The surgeon said he thinks it's metastatic. I agree 4 with him. 5 Q Well, the surgeon said he was going to wait for 6 the pathology report and decide what kind of cancer 7 Mr. Richie had, didn't he? 8 A From the standpoint of the final diagnosis. But 9 in terms of what you just said, what does a surgeon see 10 when he looks into that chest, the surgeon said I saw 11 metastatic cancer. That's what he said. And that's all I 12 can go by. 13 Q You don't want to go by what the surgeon said in 14 March of '87 where he said grossly, this would be 15 consistent with mesothelioma? 16 A I don't know why he made that -- 17 Q Should we throw that one away? 18 A What's the basis for his saying that? 19 Q What's the basis for -- in February for his 20 saying that it's got to -- 21 A Oh, no. When somebody says I think my operative 22 diagnosis is metastatic cancer, that's a strong diagnosis. 23 If he said later on something, a plaque is consistent with 24 mesothelioma, that's a very weak statement, you know, 25 having -- I won't go into analogies, but consistent is very 114 1 weak as opposed to a surgeon saying within a reasonable 2 degree of medical certainty, this is metastatic disease. 3 And I think that's what counts. 4 Q Um-hum. 5 A It's far more significant than somebody you see 6 consistent with mesothelioma carries with it a lot of 7 things that happen. Since all I can tell you is this case 8 says he thought it was metastatic. And that is not the 9 only finding. Remember that we have a lot of other 10 findings to suggest that this is in fact a lung cancer. 11 Q The surgeon sent the tissue down to the pathology 12 department for a reason, didn't he? 13 A Is that a real question? 14 Q That's a real question. 15 A They're obligated -- the surgeon can't make a 16 diagnosis of mesothelioma or any other cancer. That's what 17 pathologists do. He is -- he is bound to depend upon the 18 pathologist, which is the problem we're running into. The 19 clinicians are on one track and the pathologists are on 20 another track. Who is right? 21 Q Now, the next page in that book talking about 22 what looks like thoracoscopy, has some more pictures of 23 pictures through the thorascope; right? And they point -- 24 they have a picture, for example, of grapelike nodules on 25 the parietal pleura. Again, that's exactly what was 115 1 described in Mr. Richie's thorascope, isn't it? 2 A I didn't see the word grapelike nodules. But I 3 don't know how his findings compared to that. The surgeon 4 will tell you, not me. I wasn't there. 5 Q In any event, what is described in Anton and 6 Eisner about the thoracoscopy appearance of mesothelioma 7 being nodular masses, you would disagree with that as 8 describing mesothelioma; is that correct? 9 A Well, it's not my disagreement. That's the way 10 it was born. If you look at Dr. McCoy's own statement he 11 said nodules favor carcinoma, sheets favor mesothelioma. 12 We're not talking about absolutes. We're saying if you 13 find nodules, which way do you turn. And I say you turn 14 towards carcinoma. 15 Q You've never -- 16 A It's just one of my criteria. 17 Q You've never had the opportunity to look through 18 a thorascope at a mesothelioma, have you? 19 A At one time probably. I can't -- not in recent 20 recollection. I've gone up to the operating room at times. 21 I've been a part of surgery. They have asked me to look at 22 things. But I can't specifically say that I've seen enough 23 of them. 24 Q Now, mesothelioma can also appear even at a late 25 stage as a large bulking mass in the lung; isn't that true? 116 1 A Anything is possible. We're, again, not trying 2 to make absolutes. Anything can happen. You can have 3 nodules. They are described. All I'm trying to say is 4 what gives you a high level of confidence -- I think all of 5 this is coming down to one simple thing, what does it favor 6 and how does it fit in with everything else. That's all 7 we're asking. 8 Q Dr. Hammar describes early mesothelioma being 9 nodular. Dr. Churg describes it as being nodular. 10 Dr. Corson describes early mesothelioma as being nodular. 11 All of them are on the US Canadian Mesothelioma Panel; is 12 that right? 13 A Yeah. Dr. McCoy has a photograph in which he 14 claims there's an early stage. You can add that to it. 15 Q Dr. McCoy? 16 A Dr. McCoy. So I'm aware of these, but they're 17 all early stages. And if somebody were to ask you to pick 18 up an early stage of something as opposed to what you've 19 got right now, if you don't fulfill that criterion -- 20 Q Does a fetus at an early stage of pregnancy, post 21 two weeks conception look like a fetus eight and a half 22 months? I mean, they look totally different, don't they? 23 A Well, you can turn it around. You can't tell the 24 difference between a cat and a dog and human or anything 25 else in these early stages of development. That is very 117 1 similar. So but there's no -- yes. I don't think there's 2 any real relationship to that. I mean, you're simply 3 trying to tie in something. Cancer is not pregnancy. 4 Q You have to do some other tests, don't you, to 5 find out what you've got? 6 A Well, you have to put them all together. You 7 have to do a lot of things. 8 Q Now, you would agree -- 9 A Tests and observations. 10 Q You would agree, wouldn't you, Doctor, that 11 metastatic disease is not evidence for or against the 12 diagnosis of mesothelioma. Is that true? 13 A You're not supposed to have metastasis. If 14 you've got Dr. Churg's book you see extensive metastasis, 15 which is an argument against mesothelioma. That's 16 Dr. Churg's word. You'll find it somewhere in there. So 17 what does that tell you? It tells you that you're not 18 supposed to get metastasis, but anything is possible. So 19 am I going to deny -- I already acknowledge that I had 20 accepted some cases with metastasis, but I can tell you not 21 in a high level of confidence. 22 Q Well, metastases are found in approximately half 23 the cases of mesothelioma; right? 24 A Not extensive. Read his book; right? The 25 finding of extensive metastases is an argument against 118 1 mesothelioma. 2 Q Okay. Let's just see what it says. In the past 3 it was thought that mesothelioma did not metastasize? 4 A That's right. 5 Q That's in the past? 6 A In the past. And little by little the example 7 has gotten into that until a little bit of metastasis was 8 accepted and a lot more and so forth. But now too much is 9 being accepted. 10 Q More -- but more recent studies have shown 11 metastases are present in about half the cases that are 12 examined at autopsy. Thoracic or abdominal cavity lymph 13 nodes are the sites most frequently involved; pleural 14 tumors less often metastasize to superclavicular or 15 cervical nodes. We're getting there, doctor. 16 A I want you to read that line. 17 Q It's very common for pleural tumors to 18 metastasize to one or both lungs. Tumor is also fairly 19 frequently found in heart, bone, liver, and adrenals. 20 Elmes and Simpson claim that epithelial tumors are more 21 likely to have distant metastases. 22 Mr. Richie had epithelial tumor, didn't he? 23 A That's correct. 24 Q Epithelial is of least confident of the group. 25 Whereas Law et al. claim that metastases are most frequent 119 1 with saarcomatous tumors. As a rule, metastases are not 2 clinically significant, and presentation with extensnive 3 metastatic disease is against the diagnosis of 4 mesothelioma. 5 A Let's read that again. As a rule, metastases are 6 not clinically significant. He's got highly clinically 7 significant metastasis. 8 Q Well, Mr. Richie showed up in the hospital 9 because he had chest problems; right? 10 A I don't know what you're saying. All it says is 11 an extensive metastasis argues against the diagnosis. 12 That's what he's saying. Now, I don't go along with that 13 frequency. I think if you went into validation or said 14 let's go through literature you would find that it's not so 15 frequent as they say when you talk about confidence levels. 16 But in any event, I don't use it as an absolute. All we're 17 saying is if you've got metastasis it's an argument against 18 it. That's all we say. 19 Q All right. 20 A You don't -- you're going to use -- you want to 21 use the metastasis for that purpose. Dr. Churg doesn't 22 necessarily want to do that. 23 Q Okay. Well, he said extensive metastasis and 24 clinically significant metastasis is an argument against 25 mesothelioma. Mr. Richie -- 120 1 A Has both. 2 Q -- has some evidence of metastases of something, 3 although it was never confirmed to be a metastases in the 4 femur and on the ribs; right? 5 A Bilateral of the lung, at least two nodules in 6 the lung, one of which -- or both of which may be 7 metastatic, one of which may be primary according to one of 8 the notes. So we're talking about clinically significant 9 metastases. And again, the important thing is those are 10 the hallmarks of carcinoma. You don't use that to support 11 mesothelioma. Whichever side of the fence you're going on, 12 it's got to be carcinoma. 13 Q And were you advised in this case that Dr. Hamrnar 14 and Dr. Abraham both testified that if what Mr. Richie had 15 are metastases, it was of no significance in making the 16 diagnosis of mesothelioma? 17 A I have no interpretation of their report. 18 Q Now, epithelial mesothelioma that's what 19 Mr. Richie had; right? 20 A Yes, that's correct. 21 Q Okay. And the epithelial mesotheliomas are 22 usually about 50 percent of all mesotheliomas; right? 23 A Maybe more. 24 Q Maybe more. So the most common presentation is 25 an epithelial mesothelioma; right? 121 1 A That's right. 2 Q When you say -- when you say something that's 3 typical? in other words, biphasic is typical, you don't 4 mean to suggest that that means it's -- you're going to 5 more likely see a biphasic mesothelioma? 6 A No. Let me paraphrase Dr. Suzuki(phonetic). 7 While the frequency of epithelial is more common, the 8 biphasic presentation has diagnostic value. That's all 9 we're saying. Sure, it's more common. But the biphasic 10 has diagnostic value. That's a quotation out of the 11 disability compensation book. 12 Q Doctor, epithelial tumors can have a desmoplastic 13 pattern; is that right? 14 A That's correct. 15 Q And epithelial mesothelioma is the cancer cells 16 are usually cuboidal, round, or polygonal? is that correct? 17 A Well, they can be anything. They've been 18 described you name it descriptions. And somebody in some 19 book or some article has claimed they've got a mesothelioma 20 like that. But the simple answer is does it look like 21 normal mesothelium. The normal mesothelium is cuboidal, 22 flattened, uniform. That is one of the criteria that was 23 originally set up by Churg, uniform. It's an outstanding 24 property to have uniform, cuboidal, or flattened cells. 25 Q That was in what, 1976? 122 1 A It was actually earlier. 2 Q Earlier, that's right. 3 Do you think maybe times have changed in the 4 ensuing -- 5 A No longer looks like the mesothelium anymore, no. 6 It's still likes like -- 7 Q People have a better understanding and 8 appreciation about what mesothelioma does look like? 9 A Well, what I'm saying is if it looks like the 10 mesothelial cell you have evidence. If it doesn't look 11 like the mesothelial cell, where is your evidence. If it 12 is anaplastic, for example, which this cancer is, it has no 13 diagnostic value for mesothelial cells because they don't 14 look like that. So we're talking about a pathologist 15 looking through a microscope saying does it look like 16 mesothelial lining, and the answer is it does. If it's 17 uniform, cuboidal, or flattened, the more it deviates from 18 that the less confident you are in using it as an argument 19 in favor of mesothelioma. It's -- that's as simple as I 20 can make it. 21 Q You wanted to talk about Dr. Case's report a 22 minute ago? 23 A Well, I don't want to talk about it, but if you 24 want to bring it up. 25 Q Here it is written to somebody at Tilly & Graves; 123 1 is that right? 2 A Yeah. I don't recall exactly what it's about. I 3 just know that it's Dr. Case's report. 4 Q He's a pathologist; right? 5 A Yeah, he's from MaGill, as I believe. 6 Q He describes looking at the same slides that you 7 just talked to us about. He said that this slide provides 8 more evidence of tumor which appears to be growing on the 9 surface of the lung, providing some circumstantial evidence 10 for mesothelioma. Is that what Doctor -- 11 A That's what he says. I saw that photograph, and 12 it is growing on the surface of the lung, but it's a local 13 growth. I'm surprised that he said that. 14 Q And Dr. Hammar also said that. Are you surprised 15 that Dr. Hammar said that? 16 A That they took that photograph of lung and he 17 said -- 18 Q He showed us exactly the same photograph and said 19 this is exactly what mesothelioma looks like. 20 A Well, I wish somebody had asked him about -- how 21 about carcinoma. 22 Q Oh, somebody did ask him how about carcinoma. 23 A I hope he said that's the way carcinoma appears. 24 Q He said it's the way mesothelioma appears. 25 A He didn't -- he did not say carcinoma appears 124 1 that way? 2 Q Let's take a look at what Dr. Case says about the 3 appearance. He said that particularly noteworthy are areas 4 around the end of the tumor in which cells are elongated, 5 have papillary extension of their cytoplasm. This 6 appearance is similar to that of mesothelial cells in these 7 areas; right? 8 A Well that's his opinion. 9 Q You disagree with that? 10 A Not only do I disagree with it, but the only 11 identification I can see where it looks like something was 12 kidney to me. It was so variable that I felt this was 13 probably a renal carcinoma on the basis of histology all by 14 itself, which of course I have to temper because I have to 15 put all the criteria together. Sure, I disagree with that. 16 That's a very limited statement. And those were not his 17 conclusions as I understand it. 18 Q Well, Dr. Case's conclusion was he didn't know 19 what it was. He couldn't say whether it was mesothelioma. 20 He couldn't say it was cancer. He couldn't say anything. 21 Is that what you understand? 22 MR. GRAVES: Your Honor, I'm going to object to 23 this. This is speculation. Dr. Case is a witness here. 24 He will be here on Wednesday to tell us all about this. I 25 think to go through lugubrious detail of his report -- 125 1 THE COURT: He said he relied on it in forming 2 his opinion, did he not? 3 THE WITNESS: No. 4 THE COURT: Objection overruled. 5 Q (By Mr. Metcalf) Now Dr. Sherwin, is it true that 6 the epithelial mesotheliomas are composed of cuboidal and 7 polyhedral tumor cells with prominant neuclei? 8 A You can name any description and there's somebody 9 who has described that. Anaplastic, polyginals, spindle, 10 cuboidal, you name it, there's a report somewhere in 11 literature that's claimed, including mucin production. You 12 also find these reports. So yes, you will show me a report 13 that says that, but that's not what they normally look 14 like. 15 Q You know Dr. Victor Roggli; right? 16 A Yes. 17 Q Dr. Roggli is on the United States Canadian 18 Mesothelioma Panel; right? 19 A I don't know that. He may be. He may not be. 20 Q Well Dr. Hammar when he testified told us that 21 Dr. Roggli is on the panel. 22 A Well, then that's true. I'm not sure about that. 23 Q In any event, you recognize Dr. Roggli as being 24 somebody who has written extensively about mesothelioma and 25 other asbestos-related diseases? 126 1 A Yes. 2 Q Is that correct? 3 A Yes. 4 Q This is -- you're familiar, of course, with his 5 book; right, Pathology of Asbestos Associated Diseases? 6 A I can't quote you things from it. 7 Q Well, under histopathology doesn't he say that 8 the most common is the epithelial pattern, which we've 9 agreed on; is that right? 10 A Yes. 11 Q Which is composed of cuboidal or polyhedral tumor 12 cells with central neuclei and often prominent neuclei; is 13 that right? 14 A That's fine. I have no problem except for one 15 thing. And that is, again, remember the most common 16 epithelial is not the same as the one with the diagnostic 17 value. You have to -- you have to interpret those 18 statements. And you also mentioned cuboidal. How many are 19 polyhedral I don't know. But cuboidal -- he certainly 20 recognized cuboidal because that's the way the mesothelial 21 cells look. 22 Q You feel that the most helpful pattern 23 diagnostically is when it's tubulopapillary; is that right? 24 A The pattern that has diagnostic value is 25 tubulopapillary, yes. If you notice, I put it together 127 1 with the cytology, tubulopapillary with uniform cuboidal 2 cells or flattened. 3 Q Now, when you in fact come across a mesothelioma 4 you've been asked to look at by a defense lawyer and it is 5 tubulopapillary, you then discount that and say well 6 tubulopapillary is consistent with all kinds of cancer? 7 A No, I don't discount it. I have an arrow, and 8 I'm trying to adjust the arrow in saying how do I use it. 9 Q Well here is -- 10 A Tubulopapillary -- there are lung carcinoma -- I 11 published papers on tubulopapillary carcinoma of the lung. 12 The comment is tubulopapillary cancers are thyroid, 13 pancrease, kidney, lung. There's no question about that. 14 But I don't discount it. Everything I'm doing is an arrow. 15 Which way does it point if I get tubulopapillary? It may 16 not help. 17 Q In November of 1986 you reported to a lawfirm in 18 New Orleans, you wrote this court report. In there you 19 said thirdly, microscopic findings show epithelial cancer 20 which has metastasized to a lymph node that has 21 tubulopapillary appearance is consistent with different 22 kinds of cancer; is that correct? 23 A Absolutely correct. That is a sound scientific 24 statement. But however it's being used to say that if two 25 cancers can produce the same thing, for example, you 128 1 already mentioned encasement. Lung cancer can encase the 2 lung. When you find that you have to worry about lung 3 cancer, doesn't say I discount. It I says it doesn't help 4 me, ordinarily it would favor mesothelioma. And so I have 5 to say in this case if we find these things I have to weigh 6 it with everything else. 7 Q Now, biphasic cancer would be one that's a 8 combination of epithelial and spindle cells; right? 9 A Sarcomatous, correct. 10 Q Sarcomatous cells are spindle shaped; correct? 11 A Well, there's spindle epithelial cells that's -- 12 I didn't said that a true biphasic cancer is sarcoma which 13 means it's coming from connective tissue which happens to 14 be spindle. But there are epithelial cells which are 15 spindle. They're called spindle cell carcinoma. 16 Q Now, in this case the immunohistochemistry done 17 at Dr. Taylor's lab determined that the cancer would be 18 consistent with mesenchymal tumor; is that right? 19 A That was Dr. Barr's opinion, correct. 20 Q Is mesenchymal a sarcomatous cancer? 21 A That by definition is carcinoma. 22 Q So we have epithelial. Dr. Barr says sarcomatous 23 or mesenchymal. 24 Q In Mr. Richie's case. But you're discounting or 25 don't really consider the immunohistochemistry done at USC; 129 1 is that right? 2 A Well, they based that on, as I understand it, on 3 vimentin positively. And epithelial cells co-express 4 vimentin and keratin. When she says consistent when she 5 probably also said in the report that epithelial cells can 6 also produce vimentin. But the point is she herself -- I 7 have to -- I have to take that report just as a blood test 8 from the lab and say does it fit with everything else. 9 Basically that was a non-contributory. 10 Incidentally, I didn't get Dr. Case's report 11 until after my -- only recently. I did not rely upon that 12 for any information for any interpretation. It was 13 mentioned that I relied upon it, but that's not true. 14 Q Now it's true, isn't it, sir, that most 15 adenocarcinomas are positive when tested for neutromucin? 16 A No. 99.9 percent of renal carcinomas are 17 negative for neutromucin. 18 Q Let's talk about lung cancer. I thought you told 19 us before that it could be kidney cancer but you favored 20 lung cancer, but you didn't know. 21 A Some 20 to 40 percent or more of lung carcinomas 22 are mucin negative. That statistic doesn't help. The 23 people can't be given statistical diagnosis. So I can't 24 answer that question. Mucin may or may not be positive. 25 It's one of those things where if it's positive it tells 130 1 you it's not a mesothelioma. If it's negative it doesn't 2 really help you. That's why we say non-contributory. 3 Q It was negative in Mr. Richie's case? 4 A It was negative, correct. 5 Q Now, Mr. Richie's tumor was vimentin positive? is 6 that right? 7 A I'd have to go to the report to tell you. I only 8 go to that report for their interpretation. I don't try to 9 enumerate or second guess them. I don't try to do that. 10 Q Well, Dr. Hammar said it was vimentin positive; 11 right? 12 A Doctor -- 13 Q Dr. Barr said it was vimentin positive? 14 A I accept that. I don't want to go -- to be put 15 in a position going through all these tests since I don't 16 incorporate them in my correlation. 17 Q I think you told us that Mr. Richie's tumor was 18 keratin positive right? 19 A Pan keratin positive. And also Dr. Abraham, 20 Dr. Hammar, and who knows who else has done this and found 21 keratin. Yes, keratin was identified. 22 Q And it was -- Mr. Richie's tumor was CEA 23 negative; right? 24 A I believe so, but I -- I don't like the idea of 25 not having the report in front of me going through them. 131 1 And I don't see the point of doing that since I draw no 2 conclusions on those. 3 Q We've already had testimony from Dr. Giorno, 4 Dr. Hammar, Dr. Abraham that it was CEA negative. 5 A Yeah, and Dr. Barr herself had a deposition which 6 I read last night. 7 Q And isn't it true that when you have a 8 combination of positive keratin, positive vimentin, and 9 negative CEA you can be assured that we're dealing with a 10 mesothelioma? 11 A Oh, my goodness. I can't imagine anybody making 12 that -- I never make the statement under any circumstances. 13 Q Isn't that the typical finding -- excuse me, 14 isn't that the typical finding of mesothelioma? 15 A Well, let me just simply say there are two 16 answers to that. Number one says you're asking me to be an 17 expert in this area, and I've already acknowledged to you I 18 don't have expertise, so you really shouldn't be asking me 19 that question. The second thing says sure, I'm conversing, 20 but I don't want to get into it. 21 Q If a person who had expertise in 22 immunohistochemistry like Dr. Hammar testified if you have 23 vimentin positive and keratin positive and CEA negative, 24 which is what you'd expect to find in a mesothelioma, you 25 would have no basis to disagree with that because you're 132 1 not an expert in immunohistochemistry? 2 A I have no comment on it. I wouldn't agree or 3 disagree. I just defer to my own laboratory because I work 4 with them. 5 Q Here is a chart. And I suppose I know your 6 answer to this, but what this does is it -- it lists the 7 tests done in Mr. Richie's keratin stain, CEA, LeuMl, 8 B72.3, BerEP4, HMFG. Can you tell us, as Dr. Hammar did, 9 what percent positively you would expect to see for 10 carcinoma and for mesothelioma in these? Do you have any 11 idea? 12 A Well, I don't like to give an answer to a 13 question where I'm not an expert in the area where I'm not 14 conversing with all the literature. And so as an expert 15 you really shouldn't ask me that question. 16 Now, the second question -- I mean, second 17 approach to that would say if those were such great gold 18 standards why are we struggling so hard to come up with all 19 these new ones like an anti-mesothelial antibody. How 20 about -- BerP4 was recently introduced when theoretically 21 LeuMl was such a great gold standard. This is all in a 22 state of flux. And to single out those I think is really 23 not appropriate from my standpoint. 24 Q Aren't these the ones that have a value in 25 helping diagnose mesothelioma to people who are experts in 133 1 this area? 2 A They're a fraction of what I do. I do 25 of 3 them. 4 Q But you did a lot of them, You didn't do any 5 actually, did you? 6 A Well, I mean, I requested 25. That's absolutely 7 correct. I requested 25. 8Q 9 you? You know Dr. Shebani and Dr. Battifora, don't 10 A I have met both of them. 11 Q They're practicing in Los Angeles; is that right? 12 A Yes. 13 Q City of Hope Cancer Research Institute? 14 A Well, Dr. Shebani recently moved. 15 Q Dr. Battafora is an expert in 16 immunohistochemistry; is that right? 17 A I accept that, yes. 18 Q He's on the United States Canadian Mesothelioma 19 Panel; is thatright? 20 A Yes. 21 Q He'swrittenextensively on the use of 22 immunohistochemistry for helpingdiagnose mesothelioma, 23 hasn't he? 24 A That's correct. 25 Q You've probably seen this article by Shebani and 134 1 Battifora; right? 2 A Yes, I have. This is 1986. And that's 3 subsequent -- there are several articles subsequent to 4 this. That's almost out of date. 5 Q So '86 would be out of date in your view? 6 A Well, this field is changing radically, yes. 7 Well, as a none expert I would -- I would not rely upon 8 that. I'd get his later one. 9 Q Well, let's see what he says here. On HMFG, 10 which was done in this case, 96 percent of adenocarcinomas 11 were positive and zero percent of mesotheliomas were 12 positive; right? Is that what it says here? 13 A Well, I can read that and listen to you and 14 acknowledge it, but I can't comment on it as an expert. 15 And I would also say that I don't understand what you're 16 doing in 1986 when so much literature has come to pass 17 since then, a lot of experience with all of these since 18 1986. 19 Q Did you bring anything with you that would 20 indicate that what he reported in '86 is wrong? 21 A Well, I actually do have articles. But I can't 22 go into it because it would put me in the position of being 23 a none expert critiquing the experts, and I don't want to 24 do that. But it's -- but there's a very basic fact, 25 Dr. Shebani has published recent articles in 1991 and 1992 135 1 that encompasses all of these, including one that's an 2 update that brings you up to date on all of these, 3 including his recent events which I'm sure I have with me. 4 If you want the citation, I'll put it out. 5 Q Well, if you have the article I'd be happy to 6 look at it. 7 A I'm not going to comment on it because I would 8 have to be an expert to do it. If you want me to do it I 9 will do it. 10 Q The point, Dr. Sherwin, of this really is, isn't 11 it, that these various tests are recognized as having value 12 in discriminating between adenocarcinomas and 13 mesotheliomas; isn't that right? 14 A It means that I'm using them because they may 15 have some value. But let me emphasize they are ancillary 16 tests. And if you look at McCoy's articles on US Canadian 17 Panel experience, you'll see in there says ancillary tests. 18 That's what these are. 19 Q That article is 19 -- 20 A 1991. I don't remember the exact citation. 21 Q That's right. 22 A These are ancillary tests, and I do them as 23 ancillary tests. They're still exploratory. We're still 24 searching for the gold standard. And I still turn to 25 Dr. Taylor and his department for interpretation, and I 136 1 expect them to be keeping up with that. 2 Q Okay, good. Are you having any success in 3 finding that article? 4 A Well, I have a lot of papers in here. So let me 5 just let me go through and see if we can find that. 6 MR. GRAVES: Your Honor, I'd object to the 7 procedure. I don't think there's a question pending on it 8 unless Mr. Metcalf is going to insist that he go through -- 9 THE WITNESS: Well, the article by Shebani which 10 is an update -- I'd rather go on with the deposition and 11 try to find it while you're talking. 12 THE COURT: I don't know what to do. I never had 13 this problem before. 14 MR. METCALF: Apparently haven't had Dr. Sherwin 15 in court before. 16 THE WITNESS: Well, I don't mind helping you. 17 THE COURT: Do you have any other questions? 18 Q (By Mr. Metcalf) Dr. Sherwin, have you got any 19 familiarity with the B72.3 test? 20 A Well, personally in terms of expertise, no; in 21 terms of use, yes. For a long time we used B72.3, and it 22 turned out, according to Dr. Taylor, to be very unreliable 23 in his laboratory hands. And because it was unreliable he 24 came up to me one day and said we're going to discontinue 25 it. And I said fine. It came off his list. I couldn't 137 1 even check it anymore because it was no longer available I 2 don't think. So we don't do B72.3. 3 Q Other laboratories, however, may have different 4 experience with it and have been able to find it very 5 useful; isn't that right? 6 A Well, may very well be. That's the kind of 7 question that you might ask Dr. Barr or Dr. Taylor. 8 MR. METCALF: Well, rather than wait on the 9 article, I'm going to not ask anymore questions. 10 THE WITNESS: Okay. 11 THE COURT: Redirect? 12 THE WITNESS: I'll try to find it after you get 13 through here. 14 MR. GRAVES: I have only two questions. 15 REDIRECT EXAMINATION 16 BY MR. GRAVES: 17 Q Dr. Sherwin, you've testified that you made use 18 of Dr. Barr's expertise and Dr. Taylor expertise with 19 respect to immunohistochemistry; is that correct? 20 A That's correct. 21 Q When counsel asked you about the combination of 22 positive for keratin, vimentin, and negative for CEA, was 23 that strongly suggestive and diagnostic of mesothelioma. 24 Do you remember that question? 25 A Yes. 138 1 Q Do you remember Dr. Barr's answer to that 2 question when it was propounded to her in the deposition? 3 A Well, I can't recall it, but -- 4 Q Directing your attention to page 39, did she give 5 a response? 6 A Well, there is a -- let's see, whether that 7 combination of staining was present in Mr. Richie's case. 8 Yes, I do have an opinion. 9 Q Would you read that paragraph, please, upon 10 which -- 11 A It says basically what Dr. Churg is referring to 12 is that the same malignant cell will express both keratin 13 and vimentin. That's called co-expression of antigens, 14 which I mentioned. And in this case when we stained the 15 initial panel of antibodies we stained the same piece of 16 tissue with keratin and vimentin. And all the epithelial 17 markers were negative. Vimentin was solely positive and 18 strongly. So there have been no reports in literature of 19 mesotheliomas being negative for keratin. 20 Q Right. Is that the physician you relied upon? 21 A I simply relied upon her interpretation. I 22 didn't put a lot of weight on it, no significant weight on 23 it. She simply concluded -- favored carcinoma. That's 24 fine. It goes along with what I believe. 25 Q And Doctor, finally with respect to the discharge 139 1 statement that counsel mentioned to you, this is in May of 2 1987, do you recall reviewing this, sir? 3 A Yes, I do. 4 Q Was there a comment about the prostatic 5 carcinoma? 6 A Yes, in June of 1983. I also should mention I 7 didn't -- I'm glad you raised this. Very top paragraph 8 says that he was given tetracycline that first operation, 9 if I recall correctly. So I want you to know that some 10 scarring of the pleura after that first operation could 11 have been due to the tetracycline. But yes, prostatic 12 carcinoma in January of 1983. 13 Q All right. Now, did he make a comment; that is, 14 Dr. Barter whom we've heard of before, did he make a 15 comment about the bony metastases and the relationship to 16 prostatic cancer? 17 A Well, let's see what he said. He said he has 18 known bony metastases by previous bone scan, and whether 19 this is from the mesothelioma or prostate cancer is not 20 known. 21 Q That was the end, the final summary, was it not? 22 A Discharge diagnosis dated May 1987, date of 23 discharge May 4, '87 and his date here is 5/7/87. Final it 24 says underneath, final summary, correct. 25 MR. GRAVES: Thank you. Nothing further. 140 1 THE WITNESS: Here is that article by Shebani. 2 MR. METCALF: I'm not going to do it. 3 THE WITNESS: Well, it's -- since you asked for 4 it. Dr. Battifora is part of the article. And there's a 5 recent summary of LeuMl and a flock of others. 6 Well, that's the -- that's one of the -- I 7 brought along a lot of supporting evidence. 8 MR. METCALF: I appreciate that. Doctor. I'll 9 take a look at it. I see the judge scowling. 10 THE COURT: We're going to be in recess until a 11 quarter to 2:00. 12 MR. GRAVES: May Dr. Sherwin be released? 13 THE COURT: Dr. Sherwin may be excused. 14 THE WITNESS: Thank you for allowing me to -- 15 THE COURT: Recess just a little over an hour. 16 Remember the admonition. See you at quarter of 2:00. 17 (A recess was taken, and then the following 18 proceedings occurred in the presence of the jury and on the 19 record.) 20 THE COURT: Mr. Graves, your next witness. 21 MR. SPITALNIK: Your Honor, we'd like to call 22 Dr. Gordon Bragg. 23 DR. GORDON BRAGG, 24 called as a witness on behalf of the defendant, having been 25 first duly sworn, was examined and testified as follows: 141 1 THE COURT: You may be seated. Please state your 2 name and spell it. 3 THE WITNESS: My last name is Bragg, B-*r-a-g-g, 4 Gordon Bragg. 5 DIRECT EXAMINATION 6 BY MR. SPITALNIK: 7 Q Dr. Bragg can you tell us what your profession 8 is? 9 A I'm a professor of mechanical engineering at the 10 University of Waterloo in Waterloo, Ontario, Canada. 11 Q Dr. Bragg, I'd like to ask you a number of 12 questions regarding your opinions about the behavior of 13 asbestos in the air. But before you do that I'd like you 14 tell us a little bit about your background. Can you tell 15 the jury what your educational background is. 16 A I hold a bachelors degree in mechanical 17 engineering from the University of Toronto in Canada. I 18 hold a Ph.D in aeronautical engineering from the University 19 of Camebridge in England. 20 Q Dr. Bragg, you mentioned mechanical engineering. 21 Can you describe to the jury what mechanical engineering 22 is? 23 A That's the design and analysis of any kind of 24 equipment that uses energy most basically, 25 Q And you mentioned that you obtained your Ph.D in 142 1 aeronautical engineering. Can you tell us what 2 aeronautical engineering is? 3 A Most generally aeronautical engineering deals 4 with the flow of air over any kind of object, most 5 specifically airplanes of course, but generally flow of air 6 over objects. 7 Q What specifically do you look into when you study 8 aeronautical engineering? 9 A You look at air flow, how they interact with 10 solid bodies, how the forces between the surfaces and the 11 air interact. 12 Q And you mentioned that you obtained your Ph.D in 13 aeronautical engineering. Can you tell us what's involved 14 in obtaining your Ph.D in that field. 15 Q In that area you do a piece of research typically 16 for about three years. You present a dissertation and 17 defend it against other experts. And that successful 18 defense entitles you to your Ph.D. 19 Q Did you have successful defense of your 20 dissertation? 21 A Yes, I did. 22 Q Now, you mentioned initially that you were a 23 professor at the University of Waterloo. Can you tell me 24 how long have you been a full professor at the University 25 of Waterloo. 143 1 A Since 1979. 2 Q Have you held other positions at the University 3 of Waterloo? 4 A I arrived there immediately after completing my 5 Ph.D in 1965. And I was successful as an assistant 6 professor and associate professor, and in 1979 was promoted 7 full professor. 8 Q Can you describe to the jury what the University 9 of Waterloo is and tell us a little bit about its 10 engineering facilities. 11 A University of Waterloo is a relatively new 12 university. We have the largest engineering school in 13 Canada. We have the largest graduate program in 14 engineering in Canada. We have the largest research 15 funding both from government and from private sources in 16 the engineering field in Canada. 17 Q As a full professor of mechanical engineering at 18 the University of Waterloo what are your responsibilities? 19 A I teach both ungraduate and graduate programs, I 20 lecture and supervise graduate students, I do research 21 myself, and I supervise research by graduate students. And 22 I do a small amount of administrative work. 23 Q Apart from serving as full professor at the 24 University of Waterloo have you ever had any visiting 25 professorships at other educational facilities? 144 1 A I've been a visiting professor at the University 2 of Calgary in Alberta, Canada some years ago. 3 Q And in what was that visiting professorship? 4 A In the field of fluid mechanics. 5 Q Now, you mentioned earlier that some of the work 6 you do as a full professor of mechanical engineering at the 7 University of Waterloo involves research. Can you tell the 8 jury a little bit about the types of research that you've 9 undertaken in your field of mechanical engineering. 10 A In recent years all of my work has been in the 11 field of air pollution and air pollution controls and 12 analysis of particulates in air. And also most recently a 13 considerable amount of my work has been devoted to the 14 question of asbestos in the air, how it gets there, how it 15 gets removed, what happens to it in the air. 16 Q Have you written any papers on this particular 17 topic? 18 A On that topic I have written approximately 25 19 papers in the area. 20 Q Have you written papers on other topics involving 21 mechanical engineering? 22 A I've done research papers. I've written about 50 23 of them. As I said, about half of them are on the subject 24 of asbestos. 25 Q Are those papers peer review papers? 145 1 A Yes. They're anonymously reviewed and accepted 2 in peer review journals. 3 Q When you say they're anonymously reviewed, can 4 you tell the jury a little bit about the peer review 5 process and why that's significant in your field. 6 A In the scientific area it's important that any 7 piece of research be judged, and it be judged independently 8 and only those papers which have survived this review 9 process should enter the scien --the formal scientific 10 literature. 11 Q You discussed that some of these papers dealt 12 with what happens to asbestos in the air, how much is in 13 the air, and how it leaves the air. What do you base those 14 papers on? Is it just pure research? Are there other 15 avenues that you explore? 16 A Some of my work has been in the laboratory where 17 we study asbestos and how it gets in the air and how it 18 leaves the air. We've studied in laboratories the various 19 measurement methods, some of the various measurement 20 methods used to measure asbestos, and also on the basis of 21 a wide range of field studies in natural locations where 22 asbestos is present. Supervised a lot of measurements in 23 the factory air in buildings, in environments of that 24 nature. 25 Q And what type of field studies have you 146 1 undertaken into these different facilities? 2 A Measurement of asbestos levels, kinds of 3 methodology for measurements of asbestos levels, sources of 4 asbestos, and by the levels what they are, studies of that 5 nature. 6 Q In conjunction with your research papers on this 7 topic approximately how many different industrial 8 facilities did you conduct field studies at? 9 A Well, if you include all the various field 10 studies I've done and not just the ones that have been 11 sources of research papers, probably several hundred. 12 Q Now Dr. Bragg, apart from your position as a full 13 university professor, have you held any other positions 14 historically which involve asbestos and buildings? 15 A Yes. I've done contract research for the 16 province of Ontario Ministry of Health, Administrator of 17 Labor, I have done specialized studies for a Royal 18 Commission in the province of Ontario which would be 19 similar in the United States to a presidential commission, 20 and I have also done studies on behalf of organizations 21 that appeared in front of OSHA; that is, in the United 22 States the Occupational Safety and Health Administration 23 and in front of the Environmental Protection Agency. 24 Q Now, you mentioned the position as consultant 25 with the Ontario Ministry of Health. When was that? 147 1 A That would be approximately 1969 or '70, 2 somewhere in that area. 3 Q Can you describe for the jury what that position 4 involved. 5 A At that time I was doing research on the control 6 of asbestos dust on behalf of the government of Ontario. 7 And in the middle of that period I became involved as a 8 consultant and an inspector going into the asbestos using 9 facilities in the various factories in the province 10 assessing the levels there, determining how to measure 11 them, providing advice to the people there on how to 12 control and minimize asbestos dust levels at the 13 environment where they were using asbestos or using 14 asbestos as part of their products. 15 Q And approximately how many industrial facilities 16 did you visit while you were involved with the Ontario 17 Ministry of Health? 18 A Somewhere between 50 and 100 at that time. 19 Q Dr. Bragg, I believe you also mentioned that 20 previously you were involved with the Royal Commission on 21 Matters of Health and Safety Arising from the Use of 22 Asbestos in Ontario. Can you tell the jury a little bit 23 about that position and what it involved. 24 A I was one of ten specialists engaged by the 25 Commission to provide specialized studies for them. The 148 1 particular area in which I was asked to provide information 2 was on the ability to control asbestos dust and the levels 3 that could be achieved by those various controls, and also 4 the costs of implementing those controls. 5 Q Did this Royal Commission generate any type of 6 written report as a result of your findings? 7 A Yes, they published my own study as a specialized 8 book and also they produced a multi-volume analysis of the 9 whole question of asbestos in all environments at that time 10 in the province of Ontario. 11 Q Dr. Bragg, we've talked about the Ontario 12 Ministry of the Health and the Royal Commission as bodies 13 that you consulted for previously. Are you currently 14 involved in any other consulting activities that involve 15 asbestos in buildings? 16 A From time to time I provide written documentation 17 for engineering control of asbestos dust on behalf of an 18 organization entitled the Asbestos Institute. And I give 19 courses on their behalf to engineers on the control of 20 asbestos dust in the industrial environment at various 21 locations around the world. 22 Q And can you tell us what the Asbestos Institute 23 is? 24 A Asbestos Institute is an organization created and 25 funded by the Canadian government, by the government of the 149 1 province of Quebec, by the manufacturers in Canada who both 2 mine and manufacturer asbestos, and by the unions who work 3 in those industries. And the objective of the -- of the 4 organization is to promote safety in the use of asbestos. 5 MR. SPITALNIK: Your Honor, may I approach the 6 witness? 7 THE COURT: You may. 8 Q (By Mr. Spitalnik) Dr. Bragg, I'm handing you 9 what's been marked as OCF Exhibit 457a. Is that a current 10 copy of your curriculum vitae? 11 A Yes, it is. 12 MR. SPITALNIK: I move to have this admitted. 13 MR. METCALF: Objection. It's redundant. 14 THE COURT: It's admitted. 15 Q (By Mr. Spitalnik) Dr. Bragg, are you also 16 involved in legal issues involving asbestos? 17 A Yes. I've appeared before OSHA on behalf of the 18 Asbestos Information Association of North America with 19 respect to the OSHA proposal sometime ago to lower the 20 permissible exposure levels. Also I've provided testimony 21 to the Environmental Protection Agency of the United States 22 on behalf of the industry with respect to their proposal to 23 phase out and ban asbestos, which was proposed some years 24 ago now. 25 Q Are you also involved with lawyers consulting on 150 1 cases such as this one? 2 A From time to time in Canada and the -- and the 3 United States I'm asked to provide testimony before courts. 4 Q In that capacity have you been retained by my 5 firm to discuss how asbestos fibers behave at the Gates 6 facility here in Denver? 7 A Yes. 8 Q And are you compensated for that by our firm? 9 A Yes, I am. 10 Q And have you reached opinions in this regard with 11 respect to how asbestos fibers behave at Gates facility 12 here in Denver? 13 A Yes. 14 Q And are those opinions based upon generally 15 accepted scientific principles regarding how asbestos acts 16 in the air? 17 A Yes, they are. 18 Q Well, can you tell the jury a little bit about 19 the basic scientific mechanisms which impact upon asbestos 20 fibers in the air and what they are? 21 A It's useful when thinking about asbestos, 22 especially asbestos in the air, to group what we call 23 mechanisms into three different processes. The first one 24 is to discuss how asbestos gets from a solid object and in 25 a solid form into the air. The second thing that is 151 1 helpful for understanding is to discuss what happens to it 2 while it's in the air. And the third thing that is useful 3 is to discuss the mechanisms by which it leaves the air. 4 And if we look at each of those separately and break them 5 down, then the result will explain why the levels that we 6 find in the air are what they are. 7 Q Well Dr. Bragg, you mentioned these three 8 different mechanisms. Let me address the first one you 9 stated, how do fibers get from a solid into the air. Where 10 else would asbestos fibers be if they're not in the air to 11 begin with? 12 A Asbestos is a naturally occurring mineral that 13 occurs everywhere. It's in most soils certainly in North 14 America, it's in thousands of products; brake shoes, piping 15 insulation, and it is present in many, many different forms 16 in places where it's in solid form; that is, not in the 17 airborne form. 18 Q Well, you talk about asbestos being in solid form 19 in a product. Is there a term of art which is used to 20 describe what that solid form is? 21 A Asbestos as it's used in making products is 22 almost invariably in the form of what we call a matrix; 23 that is, just a mixture of two different kinds of solids. 24 It's different from a solution not totally mixed. They're 25 mechanically bound together. That matrix is the form in 152 1 which we find asbestos in building products, in insulation, 2 in brake shoes, and things like that. 3 Q Well, let's talk specifically about 4 asbestos-containing insulation. Does that have a matrix in 5 it? 6 A Asbestos-containing insulation is in a matrix 7 form. 8 Q And can you tell the jury how a fiber would get 9 out of this matrix of the asbestos insulation into the air? 10 A There -- how things get in the air is again best 11 broken up into a process in order so that we can see what 12 happens. And it's helpful to discuss, first of all, how 13 you get a fiber or a particle of asbestos out of the 14 matrix. That has to happen first. That happens by a 15 grinding or a milling or a breaking up process. The broad 16 term for which is comminution, but it means milling or 17 breaking up. 18 If that should occur and if it should occur in 19 sizes that are of importance to us, it then is necessary to 20 get that created fiber away from a solid surface. For 21 small fibers of interest to us the biological significance 22 is a much different process than the usual understanding of 23 large particles. 24 The third thing that has to happen is that the 25 particle has to be moved in the air to an area where it 153 1 might be breathed or emitted from the building or moved 2 elsewhere. So there's the creation of the particle, the 3 comminution, the removal from the solid surface, and 4 dispersion through the air. 5 Q You mentioned a little bit about the comminution, 6 of the breaking up. 7 A The overcoming adhesion is a process that's very 8 different for a small particle; that is, one that you can't 9 see, than it is for a large particle. And what happens is 10 that various forms of electrostatic attraction become very 11 important. 12 The situation you have one is familiar with is 13 dust on your car. The dust particles on your car are large 14 enough to see. That makes them many, many times larger 15 than anything we can possibly breathe. And you know that 16 your car dust doesn't come off if you drive on a bumpy 17 road. It doesn't come off if you drive fast. It doesn't 18 even come off in the -- in the rain. 19 The particles that are of interest that might be 20 breathed are many times smaller than that, and the adhesion 21 forces are many, many, many times larger than that. So 22 that what overcomes these adhesive forces is considerably 23 larger and worth more consideration than say sand grains or 24 pieces of sugar on a table. These are -- what happens -- 25 what's happening there is quite different. 154 I 1 Q Dr. Bragg, you mentioned a number of things, and 2 I'd like to first ask you about the fibers. You mentioned 3 the size is of importance. What do you mean by the size is 4 of importance? 5 A Well, there's a number of ways you can look at 6 fiber size. The usual terminology is to talk about a 7 micron, which is a millionth of a meter. To give you a 8 flavor for that, the smallest particle you can see in a 9 beam of sunlight in darkened room is probably something of 10 the order of about 25 microns. Very fine human air might 11 be 100 to 150 microns. The largest object that is 12 generally considered inhalable is about 5 or 10 microns; so 13 that, if you can see it as an individual particle it's not 14 inhalable. 15 Question of inhalability of asbestos is a little 16 more complicated because some of the longer ones even 17 though they are long can be breathed by virtue of them 18 being very narrow. So the inhalability of asbestos is very 19 rather more complex. But it's good to think of if you can 20 see it, it's not inhalable. 21 Q Well Dr. Bragg, does the size of the fiber relate 22 to the energy required for comminution? 23 A Yes. It's also a very important factor in size 24 when you break it up or grind it, it's very -- fairly easy 25 to create large particles it's very difficult to create 155 1 small. And particularly the amount of energy that's 2 required to create very fine particles is considerably 3 larger. That's why it takes time to mill flour, to grind 4 up cosmetic powders and things of this nature is it takes a 5 lot of energy to create small particles. So that simply 6 the creation of large particles doesn't imply necessarily 7 measurable levels of small ones. 8 Q Is the size of a particle important when you're 9 looking at these adhesion sources that you referenced 10 earlier? 11 A Very much so. Again, the smaller you go the 12 stronger the effective adhesion forces are. And again, the 13 best example is if you turn a table upside down with sugar 14 on it, they will of course leave. But the finer dust even 15 that you can see by eye will not necessarily leave the 16 table when you turn it upside down. And asbestos particles 17 that are of interest are much much smaller than any of the 18 particles that you can see. 19 Q Now, we talked about comminution as a method of 20 releasing fibers from the matrix of asbestos-containing 21 insulation. Can you give the jury practical example of how 22 that comminution would take place in an industrial setting. 23 A Well, the process would certainly be created -- 24 we would go -- in comminution we would have the overcoming 25 of adhesion certainly. An example is like if we sawed or 156 1 sanded the material, that would certainly give us the 2 individual particles. And with the sandpaper and with the 3 individual teeth on the saw, that focused force that you 4 need to overcome those comminution and adhesion forces. It 5 can certainly be done. 6 Q Would the mode or method of sawing impact the 7 fiber release? 8 A Certainly. For example, simply wetting the 9 product before it's sawed and if it's kept wet would 10 eliminate the overcoming of adhesion that you would break 11 it up, you would comminute it certainly. But it would stay 12 inside the water. That would be an example of a very 13 different type of solid. 14 Q Dr. Bragg, once you have this comminution going 15 on, how long after the comminution will fibers continue to 16 be released from a matrix? 17 A You need that disturbance of the surface that 18 causes comminution, and you need that focused force that 19 caused the overcoming of adhesion before you'll get a 20 release. What that means is the minute you stop doing 21 that, for example, sawing, you stop getting a -- really a 22 release. 23 Q Well, We've talked about sawing. Can you tell us 24 whether vibrations can cause release of fibers from the 25 matrix. 157 1 A Everyone is aware, of course, that vibration can 2 cause the release of individual particulates given strong 3 enough vibrations and extreme enough vibrations. You can 4 certainly get that. What vibration in any normal 5 environment cannot do is provide that focusing that causes 6 the comminution and cause the overcoming of adhesion 7 forces. 8 Q So in this case are you making a distinction 9 between respirable fibers and non-respirable fibers? 10 A Very much so, because the whole point is -- is 11 that the large ones we can see, of course vibration can 12 take very loose material and cause it to break up. It's 13 quite a different story with the small material of the 14 sizes that are picked up on the usual sampling in 15 appropriate industrial hygiene sampling techniques in the 16 respirable sizes. 17 Q Well, can you tell us about air flow over uncaged 18 insulation? Is that sufficient to cause fibers to be 19 released from the matrix? 20 A Air flow in any normal environment up to very 21 high velocities will certainly not cause any grinding up or 22 comminution, but it will also not cause an overcoming of 23 these adhesive forces for the small particulate sorts of -- 24 for the small respirable size fibers. This, again, is 25 contrary to the normal understanding from things you can 158 1 see because of course you -- you can blow visible dust off 2 solid surfaces. 3 Q Well certainly. Dr. Bragg, if we have damaged 4 insulation or ripped insulation, wouldn't air flow over 5 that damaged or ripped insulation be sufficient to cause a 6 release of respirable fibers? 7 A Most definitely not. 8 Q And how do you explain that, Doctor? 9 A Again, first of all, this is -- this has been 10 tested experimentally. We've done tests in my lab, and 11 many others have looked at air flows over not only normal 12 surfaces but damaged surfaces, surfaces with despoited dust 13 and so on. And the small particles that are of interest to 14 us because of potential for being inhaled are not released. 15 And that's true even if the material has been previously 16 damaged. 17 This again is contrary to the normal 18 understanding of the larger particles. It's contrary to 19 our understanding of things like sand storms and so on. 20 These particles are small and they're held on very, very 21 strongly. And there's a lot of experimental evidence for 22 that. It's been tried by many, many people. 23 Q Well Dr. Bragg, if you're dealing with such small 24 particles, how can you conduct experiments which are going 25 to give you any indication of whether the forces of 159 1 adhesion are overcome? 2 A Well, one of the experiments we did is we took an 3 environment of very heavy asbestos-filled air, very dusty 4 environment that we created in the laboratory. And we let 5 the particulates settle out on a small piece of aluminum. 6 We looked at it under a scanning electron microscope which 7 allows us -- it's a type of microscope that allows us to go 8 to quite high magnifications and look at these small 9 fibers. Then we use a compressed air hose to blow over 10 that surface for approximately 20 minutes. 11 And we looked at the -- at the surface again. 12 And the vast majority of our photographs are identical 13 before and after. Occasionally a very large particle 14 larger than we -- inhalable ones around 20 -- or 10 15 microns, 10 or 20 microns in diamater will leave, but 16 mostly there was absolutely no change at all between before 17 and after. 18 Q Dr. Bragg, we've talked about sawing as 19 comminution. We've talked about vibrations and air flows. 20 Can you tell me whether pipe movement -- if you have pipe 21 which is insulated with pipe insulation, whether that 22 movement is sufficient to release respirable fibers? 23 A What type of movement would you suggest? I'm -- 24 I find your question just a little bit general. 25 Q Well, when equipment started up, for example, if 160 1 we have lineal pipe movement would that be sufficient to 2 cause the release of respirable fibers? 3 A No, I wouldn't think so no. 4 Q Why is that? 5 A Well again, we need those focused forces. We 6 need something that causes a grinding process if that 7 hasn't already occurred. And even if it has previously 8 occurred and we have particulate^ sitting on solid surfaces 9 and we need some kind of focused force to move them off. 10 And in the absence of a focused force like a saw tooth or a 11 bit of sandpaper or something equivalent like that, we're 12 not going to get certainly measurable quantities of the 13 smaller dust that is of significance. 14 Q Dr. Bragg, when we started our discussion you 15 mentioned three different areas, and we've talked about the 16 first and how fibers get into the air. Can we now discuss 17 the second, what happens to these fibers once they get in 18 the air? 19 A There are two major mechanisms if asbestos gets 20 into the air. If the small stuff that's of importance gets 21 into the air, then we want to look at it. The first one is 22 diffusion. And what that means is these fibers are very 23 little, controlled by gravity. They're not to any 24 significant level falling. They're moving basically with 25 the air. 161 1 Q The result of? 2 A The result of that is they move about the natural 3 air currents, they diffuse very quickly. What that means 4 is that the concentration, the number of fibers in a given 5 volume of air drops very quickly. The reason that happens 6 is because while the number of fibers remains constant, the 7 number of fibers per volume of air drops very quickly. 8 The other mechanism that happens is air in any 9 indoor environment will leave that indoor environment very 10 quickly. In the same way that when we talk about dilution 11 being important, the important thing we want to talk about 12 is the concentration, the number of fibers per unit, volume 13 of fibers per cc is something you may have already heard 14 about. 15 In the ventilation or the moving of air from 16 indoors to outdoors and fresh air coming in, what we speak 17 of is air changes per hour. What that means is that you 18 want to know in an indoor environment how many volumes of 19 air the same size as, for example, this room enter and 20 leave this room in an hour; so that, if for example there 21 were two air changes per hour in this room, then we're 22 saying that an amount of air equal to the volume of this 23 room enters and leaves here twice in an hour. 24 In that situation in even very tightly controlled 25 rooms you're going to get at least two air changes per 162 1 hour. Any environment that doesn't have at least two air 2 changes per hour will be received as very stuffy. So that 3 amount of air is entering and leaving. The consequence for 4 asbestos fibers of course is that that's the air that 5 contains the asbestos. 6 Q Well Dr. Bragg, let's address your initial 7 comment dealing with dispersion and dilution. Can you tell 8 the jury how distance acts to dilute fiber concentration? 9 A If we say have a 1 foot by 1 foot by 1 foot box 10 of air and somehow or another we've got ten fibers in 11 there, we've got 10 fibers per cubic foot. If over a few 12 moments we move out to a box 2 feet by 2 feet by 2 feet and 13 we've got 10 fibers, we still have that but it's 8 cubic 14 feet, 2 by 2 by 2. So as we've doubled the size we've got 15 eight times as much air. So the concentration just in 16 moving from the 1 cubic foot to a 2 cubic foot box has gone 17 from 10 fibers per cubic foot to 10 fibers per 8 cubic 18 feet. That continues on and it continues relatively 19 quickly because there are always air currents indoors or 20 out causing this. The affect is dispersion. The result is 21 dilution of the concentration. And it's the concentration 22 that's the important consideration for health for analysis 23 of air. So the concentration is dropping very quickly. 24 Q Well Dr. Bragg, are you telling us then if we 25 double the distance we don't get one-half the 163 1 concentration? 2 A I'm saying if you double the distance you get 3 one-eighth of the concentration. 4 Q Well, let's talk -- 5 A If you double it again you get one-eighth of the 6 one-eighth. 7 Q Less talk about a practical example. We talked 8 earlier about sawing insulation. Can you tell us how this 9 dispersement and dilution impact on fibers released from 10 asbestos-containing insulation while it's being sawed? 11 A Well, if you saw asbestos let's say with a dry 12 saw or something of this nature, you may get in a -- let's 13 say in a 2 foot by 2 foot by 2 foot box, that's the 14 distance from the saw possibly to the breathing zone of the 15 person who is doing the sawing. 16 Let's hypothesize that the concentration is about 17 .5 fibers per cc as measured by the proper industrial 18 hygiene occupational methodology. That person is going to 19 be exposed to that level for the five minutes or two 20 minutes or whatever that he's been exposed to. But if you 21 now consider the concentration the instant it's stopped and 22 let it diffuse out, you -- let's say an 8 foot by 8 foot 23 box, you're going to get not .5 fibers per cc, but l/64th 24 of that on average. And that's -- I think that comes to 25 about not one-half a cc -- or not a half a fiber per cc, 164 [ 1 but I think .0078 fibers per cc. That is instead of .5, 2 .007 I think. 3 Q Would that be the fiber concentration that 4 someone 8 feet away from sawing would experience? 5 A On average. 6 Q Now Dr. Bragg, how can you give us this type of 7 testimony? What data is it based upon? 8 A Well, it's based upon a simple reasoning process, 9 but it's also based on an enormous amount of occupational 10 data not only for asbestos, although it is based on 11 asbestos measurements, thousands and thousands of them. 12 But it's also based on -- well, it's based on my own 13 experience in part that these levels drop off very quickly 14 from the sources that draw in concentration due to 15 dilution. 16 Q Now Dr. Bragg, you talked about the person sawing 17 would be at a .5 fibers per cc concentration for the two or 18 three minutes or five minutes period that he was sawing. 19 Are you familiar with the time-weighted average concept? 20 A Yes, I am. 21 Q And how does this .5 fibers per cc relate to 22 time-weighted average? 23 A In all occupational hygiene studies the proper 24 way to test the levels, the way that regulations in the 25 United States and everywhere else in the world are written, 165 1 is the dose is properly calculated as an eight-hour 2 time-weighted average. 3 What that means is that what you want to know is 4 what concentration that person is exposed to throughout the 5 standard eight-hour working day. What that means is -- 6 let's assume for the moment that -- that half a fiber per 7 cc occurred just so we have some easy calculations for 15 8 minutes, and that that same person was doing other things 9 through the rest of the day? so that, for the other seven 10 hours and 45 minutes they weren't sawing so their exposure 11 was zero. 12 The eight-hour time-weighted average since 13 there's 32 15-minute periods in an eight-hour workday, the 14 proper eight-hour time-weighted average for that person 15 doing the sawing is .5 divided by 32. So it's -- I'm not 16 sure. It's .017 or something. 17 Q And would you also do calculations of 18 time-weighted average for the person 8 feet away from where 19 the sawing was taking place? 20 A Yes. You'd take their value that I think it was 21 point .00015, I think, and you get l/32nd of that. And 22 that would have at least two and maybe three zeros in front 23 of it. And under those circumstances you would be at a 24 level -- that person would be being exposed at a level 25 which over the time-weighted average is equivalent to 166 1 background; that is, the level of asbestos that's in the 2 outdoor air, that's in this courtroom. Those are the 3 levels that you find everywhere that we're all breathing 4 all the time. 5 Q And you mentioned different levels which are 6 applied to the work place. What is the personal exposure 7 level which was set by OSHA for asbestos in the work place? 8 A At the present time in the United States the 9 exposure level is .2 fibers per cc over an eight-hour 10 time-weighted average. So that -- that should be the 11 average person's exposure that's set by OSHA. And that's 12 the level that OSHA allows workers to be exposed to 13 throughout their working lives. 14 Q And in the example we gave how would a person who 15 was 8 feet away from the sawing, how would that level 16 relate to the PEL for asbestos fibers? 17 A It would be -- be -- be something of the order of 18 l/1000th of the level of the OSHA PEL. 19 Q All right. Dr. Bragg, we've talked about how 20 fibers get in the air, and we've talked about how they 21 behave in the air. I believe you discussed a little bit 22 about how fibers get out of the air. What is the major 23 mechanism whereby fibers get out of the air? 24 A The major mechanism is as I mentioned by which 25 they get out of indoor air is through ventilation. 167 1 infiltration, and exfiltration. They simply leave the 2 building. Typically I would think there would be -- I 3 could hardly conceive of a factory environment where there 4 wasn't five air changes per hour. And under those 5 circumstances certainly you have a level of fibers so low 6 you couldn't detect. It would have left the building at 7 least within an hour. More likely you wouldn't be able to 8 detect the difference between indoor and outdoors within 9 less than an hour. 10 Q Do you have an opinion regarding what the air 11 changes per hour were at Gates? 12 A My understanding is there are a number of windows 13 frequently opened, that there was a lot of heat sources in 14 that building, that it was a multi-story building with heat 15 sources at various levels. Under those circumstances I 16 would think the air changes per hour would have to be at 17 least five air changes per hour. 18 Q Now Dr. Bragg, are there any other mechanisms 19 besides air exhausting fibers out of a building which would 20 remove asbestos fibers from the air in a building? 21 A Yes. I mentioned when I talked about sources 22 that you have to overcome electrostatic attraction. 23 Attraction is if the disturbance in the room caused a 24 particle to get very near a solid surface. But the 25 disturbance generates concentrations of particularly 168 1 getting near solid surfaces that particulate could play 2 out, could be attracted to the solid surface, and it would 3 be pulled out of air that way. If that happened you'd need 4 that same generation or disturbance process I spoke of 5 earlier to get it back in again. So it wouldn't be a major 6 removal mechanism, but it would certainly happen. 7 Q Dr. Bragg, we've heard the term reintrainment in 8 this trial earlier on. Is that a mechanism which impacts 9 upon asbestos in the air? 10 A The possibility for asbestos which was once in 11 the air to get back into the air again depends on a 12 disturbance. No disturbance, no overcoming adhesive 13 forces, no resuspension. Most studies indicate that you 14 cannot measure the suspension it is so small. Resuspension 15 that is so small can't be measured. The reason is no 16 disturbance, no resuspension, no focused force, and no 17 resuspension. 18 Q What about walking or equipment moving? Is that 19 sufficient to resuspend asbestos fibers into the air? 20 A Hypothetically it may be because the disturbance 21 is there. However, there being any number of studies in 22 asbestos factories, in buildings with asbestos, and 23 buildings with damage to asbestos and so on, the levels 24 that are present in those buildings are indistinguishable 25 from outdoor levels; so that, while it's a hypothetical 169 1 possibility, no one has been able to measure it. 2 MR. SPITALNIK: Your Honor, may I approach the 3 witness? 4 THE COURT: You may. 5 Q (By Mr. Spitalnik) Dr. Bragg, I'm handing you 6 what's previously been marked 22-1 and 22-2 in this case. 7 And we were -- it was indicated earlier that those show 8 studies which highlight how reintrainment produces high 9 concentrations of asbestos fibers in the air. Have you 10 seen those charts before? 11 A Yes, I have. 12 Q And what relevance do they have with respect to 13 the reintrainment of asbestos fibers in the air of a 14 building? 15 A These diagrams do not relate to asbestos. 16 Q What do you mean by that? 17 A These are measurements taken with a device called 18 a fibrous aerosol monitor. And they simply do not measure 19 asbestos. They measure the product of the fibrous aerosol 20 monitor. 21 Q What type of product would that be? 22 A It -- it would be any type of fiber including 23 some quite large ones. It would typically -- if I recall 24 the study, it would almost certainly be fabric fiber 25 because it increases in the presence of people would be 170 1 increased by processes like pant legs rubbing together, 2 things of that nature. 3 Q Well, in terms of -- in our discussion of 4 reintrainment then did reintrainment of asbestos fibers in 5 an industrial setting produce significant concentrations of 6 asbestos fibers in a worker's breathing scene? 7 A Well again, you need a mechanism like the sawing 8 or the sanding to do it, so that the presence of asbestos 9 on the solid surface does not in any way imply presence in 10 the air. You have to have the disturbance. You have to 11 have the mechanism for getting it up there. 12 Q Now, we've talked about these different 13 mechanisms whereby fibers get from solids into the air, how 14 they behave in the air, how they're removed from a building 15 in an industrial setting. Have you reviewed at my request 16 a videotape which was produced by Alan Segrave to determine 17 how these mechanisms worked in that experiment? 18 A Yes, I have. 19 Q And what is your opinion with respect to that 20 experiment? 21 A My understanding of that experiment is that the 22 ceiling of the room is one of the very few ways in which 23 you can get zero ventilation. If I can recall correctly it 24 was claimed that it was zero ventilation. Therefore, the 25 air charges per hour is zero. Therefore, you are short 171 1 circuiting the natural diffusion process that occurs in any 2 normal environment. And this is the fundamental problem 3 with the methodology as far as showing what's happening in 4 a factory environment. 5 Q Well, when you're talking about what's happening 6 in a factory environment, why didn't we use a sealed room 7 like that to analogize what a factory environment is? 8 A Well you're preventing dilution, you're 9 maintaining the concentration, and you're preventing 10 ventilation. There's already zero air charges per hour in 11 this artificial environment, so you're preventing the very 12 processes that are important in understanding what happens 13 in the environment. 14 Q What about the volume of air in that experiment? 15 Is that important in terms of whether or not we can 16 analogize this to an industrial setting? 17 A Well, it -- actually it creates the exact 18 opposite. With a sealed environment the opportunity is 19 there for a buildup of fibers, for an increase over time. 20 But you're preventing dilution and you're preventing 21 ventilation which caused a decrease with time. 22 Q And how does the volume in the experiment relate 23 to the volume of air at the first floor of building 10 at 24 Gates? 25 A I haven't done a detailed calculation, but it 172 1 would be l/1000th of that, or of magnitude of the volume 2 indoors at Gates. And remember, ventilation is occurring 3 as well. 4 Q Well, given your comments regarding this 5 experiment do you have an opinion regarding whether it 6 produced accurate data regarding how fibers are released in 7 an industrial setting? 8 A In that study the structures in the asbestos 9 fibers were measured by a method called the indirect 10 transmission electron microscope method. That is not the 11 AHERA. That is the -- the methodology that's used in 12 school which is the direct transmission electron 13 microscope. It's also not the methodology that's 14 appropriately used to measure health effects. 15 What the proper measurement for measuring the 16 health related effects is that which is recommended by the 17 Occupational Safety and Health Administration. It's called 18 the phase contrast optical microscope method. And it's the 19 one that's not only used by OSHA, it's used by regulatory 20 bodies throughout the world. No regulatory body, no 21 testing organization has certified the indirect 22 transmission electron microscope method which was used in 23 that study. It's not used by any regulatory or testing 24 body anywhere. 25 Q Well, can you tell us about how magnification in 173 1 the transmission electron microscope differs from the phase 2 contrast microscope? 3 A In just the magnification the phase contrast 4 microscope the one that's used to discuss -- to relate to 5 epidemiology, the one that medical people want to know 6 about, is about 350 power, 300 or 350 power, something of 7 that order. And you can go to about 20,000 magnification 8 with the indirect TEM. 9 Q Wouldn't we want to use a more powerful 10 microscope to determine presence of asbestos fibers? 11 A You would if you want to answer the scientific 12 question what asbestos is in the air. And if you do that 13 the proper method is a method called the direct method TEM. 14 The problem with the indirect method, which is 15 the one that was used in that study, is -- if I explained 16 the process to you you'll see why there's a problem. You 17 can take a large chunk of asbestos which is not respirable 18 which is visible to the eye, size of a grain of sugar, and 19 with the indirect method it's then put in water, a little 20 bit of acid is added, it's vibrated ultrasonically, and 21 then it's refiltered on to a new filter. And that's what's 22 looked at under the microscope. Under those processes that 23 one visible particle gets broken up into millions of little 24 particles. And it's those millions of little particles 25 that are counted under the microscope. 174 1 The problem is that it mischaracterizes what was 2 in the air. What was in the air was the large particles 3 with no possibility of being inhaled. What's being counted 4 is that large particle being comminuted, again that word, 5 being broken up by the use of acid and ultrasonic baths 6 into millions of particles which are then presented as the 7 number. And it's that breaking up that's prevented that 8 method of the transmission electron microscope can be used 9 properly in other ways which don't break up the 10 particulate. 11 Q Why isn't this direct TEM method used by OSHA? 12 A The reason is that universally the medical people 13 and the epidemiologist have created risks with respect to 14 asbestos to the levels as measured by the OSHA optical 15 microscope method. Medical people will be prepared to 16 speak to you, epidemiologists will be prepared to speak to 17 you about the levels which are disease producing and not 18 disease producing based on phase contrast; that is, optical 19 microscope methods. Those are the ones that they have used 20 for some period of time now to measure the risk. And as an 21 engineer that's why I take those measurements in order to 22 be able to provide to these people and to the regulators 23 and to OSHA to look at what the risks are with respect to 24 asbestos. 25 Q And was phase contrast microscopy used in this 175 1 Segrave experiment? 2 A Not that I saw, no. 3 Q Well, given your comments on the experiment and 4 the measurements taken, do you have an opinion regarding 5 the validity of the analysis undertaken by Mr. Segrave as a 6 result of that experiment? 7 A I don't think that experiment speaks to what may 8 have been present in the atmosphere, that might have been 9 in that plant. 10 Q Now -- 11 THE COURT: So there's no doubt about it, I did 12 not admit that experiment, and there was no foundation laid 13 that that experiment had anything to do with the kind of 14 testing that would have resulted from testing in building 15 10. That was in no way a foundation laid. It was not 16 admitted for that purpose by any means. 17 And the jury could not possibly consider that 18 experiment as demonstrating precisely the kind of levels of 19 asbestos that may have been in building 10 back during the 20 years that Mr. Richie worked there. So I hope that's 21 not -- that disspells -- the reason I admitted that was for 22 the purpose stated, not for the purpose you're asking 23 questions about. 24 MR. SPITALNIK: Thank you, Your Honor. 25 Q (By Mr. Spitalnik) Let's move along, Dr. Bragg. 176 1 Are you familiar with the product know as industrial talc? 2 A Yes. 3 Q And these mechanisms on how fibers behave in the 4 air, can we also apply those to talc containing tremolite? 5 A We can discuss those mechanisms as they apply, 6 yes. 7 Q And how would they apply in that context? 8 A Well, if talc is being used in the process, and I 9 understand that it was, it's being used in the process 10 already comminuted; that is, it's already ground up and 11 milled. Also, it will be in a drum or package or 12 something, so it's not near a solid surface. So the first 13 two mechanisms are already present. 14 In the powdered talc you don't need to have 15 comminution. It's already been done. And we don't have a 16 solid surface present. The other fundamental difference is 17 if it's being used in the process, well then we can presume 18 it is to some extent -- continuous processes are if not 19 continuous, at least similar. So under these circumstances 20 the possibility of a talc related emission is both greater 21 because two of the mechanisms are no longer needed and 22 continuous at least if the use of talc is fibrous. 23 Q How would the fibers released from talc behave in 24 the air once they're in the air? 25 MR. METCALF: Object to the form. I don't think 177 1 there's foundation that this talc that Mr. Richie was 2 exposed to had any fibers in it. 3 THE COURT: Lay a better foundation. 4 Q (By Mr. Spitalnik) Dr. Bragg, are you familiar 5 with the talc produced by Southern Talc in general? 6 A I think I've heard information on it. I can't 7 speak to the details of it. 8 Q Are you familiar with tremolite in talc? 9 A I am familiar with the fact that many talcs 10 contain tremolite, yes, which is a form of asbestos. 11 Q And are you familiar with whether tremolite can 12 exist in fibers? 13 A Yes, it can. 14 Q And would fibers of tremolite in the air, how 15 would they behave? 16 A Fibers of tremolite being of the same size as -- 17 or the approximate same size as asbestos -- other forms of 18 asbestos would behave identically; that is, they would 19 dilute and diffuse identically and leave the building 20 identically. 21 Q What about raw asbestos fibers? 22 A Well, raw asbestos fibers if they are milled as 23 they usually are, if they are used in a process then they 24 are milled, they are already broken up, and they are in a 25 bag. They are no longer near a solid surface. So the 178 1 first two processes aren't needed. And if we hypothesize 2 that it's used in the process, that it would be used 3 continuously or semi-continuously, then the opportunity is 4 there for continuous or semi-continuous emission, and 5 therefore, concentration level. 6 Q Dr. Bragg, we've now talked about how fibers are 7 released from a solid, how they behave in the air, how 8 they're removed from the air, and how different mechanisms 9 affect asbestos insulation and talc and raw asbestos. Do 10 you have an opinion to a reasonable degree of probability 11 in your field of mechanical engineering whether these 12 mechanisms occurred at Gates from 1945 to 1982? 13 A These mechanisms will -- quite generally they 14 apply everywhere.. And I would therefore say they would 15 apply at Gates, yes. 16 MR. SPITALNIK: Thank you very much. Dr. Bragg. 17 I have nothing further at this time. 18 THE COURT: Okay. We're going to take ten-minute 19 recess. Court is in recess. 20 (A recess was taken, and then the following 21 proceedings occurred outside the presence of the jury on 22 the record.) 23 THE COURT: Is this the last witness today? 24 MR. GRAVES: No, Your Honor. We're calling 25 Dr. Barr by deposition. 179 1 THE COURT: Well, we may have to take up an issue 2 about whether that's going to happen or not. 3 MR. METCALF: That's right. We object. 4 THE COURT: Well, let's do it after this witness. 5 MR. GRAVES: Well, all right. 6 THE COURT: And then so there's no more live 7 witnesses anyway? 8 MR. GRAVES: That's correct. 9 THE COURT: Tomorrow is full? Bring them in 10 tomorrow? Do you know if tomorrow is a full day of 11 testimony and witnesses? 12 MR. GRAVES: Only Dr. Case on Wednesday. 13 THE COURT: And then you'll rest? 14 MR. GRAVES: Yes. 15 THE COURT: Are you going to put on any rebuttal? 16 Do you know yet? 17 MR. METCALF: I'm not sure, Your Honor. 18 THE COURT: When will you know? 19 MR. METCALF: Probably by tomorrow. 20 THE COURT: Well, let me know by tomorrow too 21 then. 22 MR. GRAVES: I wonder if I could be included in 23 that communication. 24 THE COURT: Yes. You should tell Mr. Graves too 25 so he can spend the night preparing. 180 1 MR. METCALF: Well, if I -- you know there's 2 going to be some discussion before he walks into this 3 courtroom. 4 THE COURT: Well, I don't know anything about 5 that. You're the only -- I don't have to know everything. 6 (The jury returned to the courtroom, and the 7 following proceedings occurred on the record.) 8 THE COURT: Mr. Metcalf, you may cross-examine. 9 MR. METCALF: Thank you, Your Honor. 10 CROSS-EXAMINATION 11 BY MR. METCALF: 12 Q Dr. Bragg, there is a significant asbestos 13 industry in Canada; isn't that correct, mining asbestos? 14 A Yes. 15 Q The Canadian government has lobbiests in 16 Washington D.C. whose purpose is essentially to resist the 17 regulations of asbestos in the United States, at least as 18 it pertains to Canadian asbestos; isn't that true? 19 MR. SPITALNIK: Your Honor, I'm going to object 20 to relevance. 21 THE COURT: Overruled. 22 THE WITNESS: May I have the question again, 23 please? 24 Q (By Mr. Metcalf) Yes. The Canadian government 25 has lobbiests in Washington D.C. whose purpose it is to 181 resist this country regulating asbestos, at least in so far 2 as Canadian asbestos goes; isn't that true? 3 A I'm not sure that I have -- 4 Q The AIA, Asbestos Information Associaion of North 5 America for whom you have presented testimony to OSHA and 6 EPA, is an organization made up of companies that are 7 interested in selling and utilizing asbestos; isn't that 8 true? 9 A They are users of asbestos, yes. 10 Q And they maintain lobbiests in Washington D.C. 11 whose purpose it is to resist regulation of asbestos; isn't 12 that correct? 13 A Yes. If I may expand on that? To influence the 14 legislation, yes. 15 Q And your presentations to OSHA and to the EPA 16 have been to attempt to influence regulation of asbestos in 17 a way that would make regulations less strengent for 18 asbestos than what's being proposed; isn't that correct? 19 A No, that's not correct. 20 Q That's not correct? 21 A My testimony on behalf of AIA for OSHA was to 22 indicate to OSHA the levels that were being achieved in the 23 United States using the best available technology and to 24 identify what the consequences of the various proposed 25 PEL'S would be. My testimony on behalf of AIA before EPA 182 1 was to use the methodology of exposure analysis which EPA 2 was using, to use data available to me, and to indicate to 3 the EPA what the consequences were of the proper use of 4 their risk analysis, it was not to make recommendations in 5 either case. 6 Q Well, you wanted to point out that the 7 consequences would be erroneous for the people on whose 8 behalf you were testifying; isn't that true, that they were 9 unnecessary? 10 A I did not render opinions of that nature, no. 11 Q Okay. And when you have made presentations on 12 behalf of the Asbestos Institute one of the things you have 13. advocated is that amosite and crocidolite asbestos ought to 14 be regulated more strengently than chrysotile that's mined 15 in Canada; isn't that correct? 16 A When I have spoken on that matter, the basis for 17 what I have said has been the regulatory bodies throughout 18 the world and the United States to discrimination between 19 the various types is not made by regulation. In most of 20 the countries in the world there is a discrimination by 21 type, and many of my views reflect that discrimination by 22 type. 23 Q By discrimination by type you mean your writings 24 have indicated that amosite and crocidolite asbestos should 25 be regulated more strengently than chrysotile asbestos 183 1 that's mined in Canada; correct? 2 A I have reported the results of the regulatory 3 bodies such as the World Health Organization, International 4 Labor Organization, the British government, the provinces 5 of Canada. All of these regulatory bodies regulate the 6 different types of asbestos differently. It's only in the 7 United States to my knowledge among the major 8 industrialized countries, there are no differences made 9 between the various types. And I've reported that in my 10 writings. 11 Q That's your belief, isn't it, that the Canadian 12 type of asbestos should be regulated less strengently than 13 amosite or crocidolite? 14 A My understanding as an engineer of the 15 epidemiological literature, the medical literature, and the 16 regulatory literature throughout the world is that there is 17 a difference between the types. 18 Q And that, for example, amosite is more dangerous 19 than chrysotile based on your understanding; is that true? 20 A That's my understanding of the epidemiology, the 21 medical, and the regulatory effects throughout the world, 22 yes. 23 Q And in fact, amosite is one of the types of 24 asbestos used in kaylo; right? 25 A That's my understanding, yes. 184 1 Q Now, basically what you have been doing when you 2 make presentations to these regulatory agencies is -- and 3 what you've done today is to present the industry 4 viewpoint; correct? 5 A No. I appear regularly with union people when I 6 act on behalf of the Asbestos Institute. And the purpose 7 frequently is to minimize exposures in the occupational 8 environment. 9 Q This is an article you wrote, isn't it? 10 A Yes, it is. 11 Q Asbestos in the Environment and Industry 12 Viewpoint? 13 A Yes, it is. 14 Q And that's the viewpoint you take, isn't it, the 15 industry viewpoint? 16 A No, that's the view I took in that article. 17 Q Okay. That was 1986 you wrote that one? 18 A I don't recall the year. 19 Q Now, you talked about being a professor and some 20 of the other activities you engage in. There's one further 21 entity that you're connected with that you didn't describe, 22 and that is being the owner of a corporation; isn't that 23 true? 24 A I am, yes. 25 Q Yes. Corporation is Gordon M. Bragg & 185 1 Associates? 2 A Yes, it is. 3 Q You're the president of Gordon M. Bragg & 4 Associates; is that right? 5 A Yes. 6 Q You're the sole stockholder of Gordon M. Bragg & 7 Associates; is that right? 8 A Yes. 9 Q You're the sole employee of Gordon M. Bragg & 10 Associates; correct? 11 A Yes. 12 Q Gordon M. Bragg & Associates would be the entity 13 that's sends the bill out for your time testifying here; is 14 that right? 15 A It's the entity through which I charge for work 16 time outside the university. 17 Q And that's the entity that sends me a bill for 18 taking your deposition if I took it; right? 19 A Yes. 20 Q Charge what, 190 an hour now for deposition? 21 A That'scorrect. 22 Q Is trial the same? 23 A Yes. 24 Q And when you travel between Waterloo, Ontario and 25 Boulder, do you charge 190 an hour for that? 186 1 A Yes. 2 Q And that goes to Gordon M. Bragg & Associates and 3 not the university; right? 4 A That's correct. 5 Q When I took your deposition that was down at the 6 lawfirm of Tilly & Graves; is that right? 7 A That's correct, yes. 8 Q And you'd been to Tilly & Graves, what three or 9 four other times before that? 10 A Yes. 11 Q You've been retained by Tilly & Graves in 12 somewhere between 18 and 25 other cases; is that right? 13 A Potentially. I've only testified in this case at 14 this point. 15 Q But you've been retained by them in a number of 16 other cases, haven't you? 17 A Potentially, yes. 18 Q And in each of those other cases it's a case 19 where a worker in a rubber plant made a claim for injuries 20 on account of exposure to asbestos; is that right? 21 A I'm not sure they're allrubberplants, but that 22 would characterize many of them. 23 Q And the other times when you've been to Tilly & 24 Graves it's been in connection with one of these other 25 cases coming out of rubber plants where Tilly & Graves 187 1 retained you; is that right? 2 A That's correct. 3 Q You know George Merlo, don't you? 4 A I've met him two or three times. 5 Q Met Mr. Merlo at Tilly & Graves; is that correct? 6 A Yes, twice I think. 7 Q You've met Mark Van Ert, have you not? 8 A Yes. 9 Q And you've met Mark Van Ert at Tilly & Graves; is 10 that right? 11 A Yes. 12 Q And you and Mr. Merlo and Dr. Van Ert have 13. traveled together to a rubber plant in Iowa to take a look 14 at it; is that right? 15 A Yes, we did. 16 Q And with you was a lawyer from Tilly & Graves; is 17 that right? 18 A Yes. 19 Q You've not been in the Gates plant in Denver, 20 have you? 21 A I have not. 22 Q You've not been to a Southern Talc mine or mill 23 in Georgia; is that right? 24 A No, I have not. 25 Q Have you prepared a written report of your work 188 1 in this particular case? 2 A No, I have not. 3 Q Were you asked by Tilly & Graves to prepare a 4 report? 5 A No, I was not. 6 Q You've seen no documents, have you, describing 7 any ventilation system at Gates, have you? 8 A I think I remember some material that may have 9 been from Mr. Antonson or Mr. Segrave's deposition speaking 10 about it. I don't recall the details. 11 Q That wasn't significant to the views you're 12 offering today though; right? 13 A It's helpful to know that there are windows. 14 It's not a sealed plant. It's helpful to know that there 15 was heat sources. That was in some minor way helpful to me 16 in deciding that at least five air charges per hour would 17 be taking place. 18 Q You've seen no documents describing the direction 19 of air flow at Gates, have you? 20 A I think I saw something somewhere that suggested 21 there were breezes which again would indicate quite 22 significant air change rates. 23 Q Well, but I was asking about the direction of 24 these breezes. 25 A Not that I recall, no. 189 1 Q Were you provided with any information from 2 Mr. William Dorris to the effect that when you walked into 3 the mill room during the time all the equipment was in 4 operation there was so much vibration it felt like you were 5 walking on jello? 6 A I don't recall those words, no. 7 Q No. The principles and processes you've 8 described here today are universally applicable; is that 9 right? 10 A If they're applied properly, yes. 11 Q 12 right? In other words, they operate in a rubber plant; 13 A If the mechanisms are present the mechanisms 14 would be operative. The principles always apply. 15 Q Sure. And they operate in an office building; 16 right? 17 A If the mechanisms were there the principles would 18 apply, yes. 19 Q They operate in a school building; right? 20 A Yes. 21 Q Operate in a construction site; is that correct? 22 A If the mechanisms were present, if they were 23 acting as I've described, then the mechanisms would apply, 24 yes. 25 Q Would operate in an asbestos mine or mill; is 190 1 that right? 2 A Yes, that's correct. 3 Q Operate on board a ship; is that right? 4 A If they were used properly, yes, they certainly 5 would. 6 Q They would be operative in the home of anybody 7 here in court today; right? 8 A If they applied, yes. 9 Q Well, can you think of a situation where the 10 principles that you have been describing wouldn't apply in 11 a home, for example, electrostatic bonding of the 12 submicroscopic particles? Do you remember talking about 13 electrostatic bonding? 14 A I do. 15 Q That would be applicable in a person's home, 16 wouldn't it? 17 A If a fiber was present near a solid surface, if 18 it was close enough, if there was the charge, which there 19 is likely to be, then it would be attracted to a solid 20 surface if it was present at that position, yes. 21 Q Well, my coat is a solid surface; right? 22 A Yes, it is. 23 Q Carpet is solidsurface; right? 24 A Yes. 25 Q Ceiling is solidsurface; right? 191 1 A Yes. 2 Q And of course this idea of air changes in a home 3 that had some wall and ceiling insulation, wouldn't it be 4 your opinion that there would be what, three or four or 5 five air changes per hour in a home like that? 6 A Probably two or three, yes. 7 Q Two or three at least. 8 Now, cigarette smoking consists principally of 9 respirable particles, droplets, doesn't it? 10 A To some extent principally, yes, it does. 11 Q So if I were to blow cigarette smoke across this 12 table, which is a solid surface, good portion of those 13 particles would bond to the table; is that correct? 14 A Not necessarily, no. 15 Q Not necessarily? 16 A No. The reason for that is the electrostatic 17 character of the smoke, the different particle size, 18 distribution is different, the disturbance level may or may 19 not be the same. And it's only those that are very close 20 to the surface that would likely be displaced. 21 Q Now, what you've -- I want you to assume 22 witnesses who have testified in trial at this time have 23 described the Gates Rubber plant, the first floor of unit 24 10 where Mr. Richie worked during the time he worked there, 25 as being a very dirty, dusty place, okay? When there's 192 1 other dust on the surface of things, that tends to prevent 2 other particles from bonding to those surfaces, doesn't it? 3 A No, as a matter of fact it doesn't. 4 Q They don't somehow influence that phenomenon of 5 electrostatic bonding? Is that what you're telling us? 6 A I suppose there might be a circumstance under 7 which it might, but on solid surfaces you often get large 8 buildups. 9 Q Now, I want to talk about vibration for a minute. 10 You told us that you needed to have -- vibration would not 11 disturb asbestos pipe covering. It would release asbestos 12 from pipe covering because you didn't have a focused 13 application of energy; is that right? 14 A No, I said that vibration would not have 15 sufficient focus to release the type of respirable size 16 particles. 17 Q Let me show you Exhibit 20-5, sir. Do you see 18 this metal object coming down here, a pipe hanger? 19 A Yes, I do. 20 Q And when witnesses describe vibration at Gates 21 they described these pipe hangers chewing into the ends of 22 pipe covering. Did anybody tell you that before you got 23 here today? 24 A I think I've read it in the depositions. 25 Q When you have a piece of metal chewing into the 193 1 end of pipe covering, that's the kind of occurrence that 2 would be expected to release respirable fibers, isn't it? 3 A Not necessarily. It's a possibility, but not 4 necessarily. The reason for that, again, is the lack of 5 focus. It looks to me as if there's been a good deal of 6 crushing going on. And this typically may not release 7 respirable fibers. It's certainly going to release a 8 significant quantity of respirable material. 9 Q Okay. That visible material apparently is, as I 10 understand what you're saying, is likely to be dropped 11 downwards with gravity? 12 A Probably from the looks of that. It's possible 13 that it's a thermal expansion effect which would be even 14 more a crushing action rather than a sanding or sawing type 15 action. 16 Q Let me show you what's been marked as 17 Exhibit 20-3. Do you have any idea what that shows? 18 A Look like a ventilation hood over a hopper. 19 Q In other words, this would tend to ventilate and 20 exhaust material that escaped from what was being put into 21 the hopper; is that correct? 22 A Are you suggesting that that's a ventilation -- 23 Q Well, I'm asking you. What do you think that is? 24 A It would be difficult to hypothesize. If it was / 25 a collection hood it would be totally ineffective. 194 1 Q Okay. The asbestos that you tested, you talked 2 about doing a test in your lab where you put asbestos on a 3 surface and looked at it with a microscope, then blew an 4 air hose on it and looked at it again. That was chrysotile 5 asbestos, wasn't it? 6 A In the recent test it was chrysotile, yes. 7 Q You haven't done that with amosite asbestos, have 8 you? 9 A No, I haven't. 10 Q Now, do I understand correctly that it's your 11 view that respirable particles are going to be probably no 12 bigger than 5 to 10 microns? 13 A With asbestos that's a very difficult question. 14 I would suggest to you that they would have -- they're 15 called aerodynamic diameters. 16 Q We looked earlier at an Exhibit No. 40 that talks 17 about something called 901A talc. Have you ever heard of 18 901A talc? 19 A No. 20 Q Do you know whether or not that's the kind that 21 was used at Gates? 22 A No, I don't. 23 Q Nobody told you that? 24 A I have had it suggested to me that talc was used 25 at Gates. I don't -- and I think I've also had it 195 1 suggested to me that there was asbestiform material there. 2 That's my knowledge. 3 Q Well, let's look at the size of 901A talc. 4 Average particle size is 17 to 23; is that right? 5 A That's what it reads, yes. 6 Q And 17 to 23 microns is a size -- is at least 7 double what respirable is; isn't that correct? 8 A Those average sizes 17 to 23 are averages, 9 they're well above respirable. 10 MR. SPITALNIK: Excuse me. What's the date on 11 that, Conard? 12 MR. METCALF: Well, I'm not sure. It has -- oh, 13 it's October, '88. 14 MR. SPITALNIK: I would object, Your Honor, based 15 upon previous rulings that anything after Mr. Richie's time 16 frame there is not relevant. 17 THE COURT: Well, that was admitted by you I 18 thought. 19 MR. SPITALNIK: No, sir. 20 Q (By Mr. Metcalf) Let me ask you this -- 21 THE COURT: Overruled. 22 Q (By Mr. Metcalf) You don't have any information 23 about whether any of the particles in 901A talc are 24 respirable size, do you? 25 A If it's milled talc there is certainly going to 196 1 be a significant proportion of it that would be respirable. 2 I don't have any independent information for that 3 particular form of talc. 4 Q And you've not actually observed this talc being 5 milled; is that correct? 6 A No. 7 Q You don't know the process by which they grade 8 the talc to get certain sizes or grades, do you? 9 A I would assume it's sifted. But no, I don't. 10 Q Or air separated perhaps? 11 A That may be. 12 Q It's true, isn't it, that Mr.Segrave used 13 standard transmission electron microscopy to analyze the 14 asbestos dust that was discharged from when that kaylo was 15 cut; isn't that right? 16 A No, that's incorrect. He usednon-standard 17 transmission electron microscopy of the type that's not 18 part of the AHERA protocol, nor is it accepted by any 19 testing certification organization such as the American 20 Society for Testing Materials. 21 Q Let me ask you this, when were you first retained 22 by Tilly & Graves? 23 A I don't recall, but it would be a couple of years 24 ago. 25 Q And at that time it's your understanding that 197 1 they were representing Owens Corning; is that right? 2 A That's correct. 3 Q And during those years since you've been retained 4 by them have they ever -- has Owens Corning ever provided 5 you with a piece of kaylo? 6 A No. 7Q 8 it? Have you ever asked for a piece of kaylo to test 9 A No. My opinions are not dependent upon the 10 product, nor are they dependent upon the type of asbestos, 11 such as the difference between chrysotile and amosite. My 12 discussion of the physics is a discussion that is 13 independent of the type of asbestos and it's independent of 14 the product. 15 Q So whether the asbestos in a calcium silicate 16 base product like kaylo, whether it's mixed up with 17 concrete wouldn't have anything to do with your opinion 18 about fiber release; is that right? 19 A The harder the material the potentially more 20 difficult it is to grind it up, to mill it, to comminute 21 it. However, when we find -- when we go to the field when 22 we look at exposure levels, exposure levels don't vary with 23 the product, nor do they vary with the type of product. 24 The only thing that causes a variation is disturbance to 25 the material. 198 1 Q It would be your opinion, would it not, 2 Dr. Bragg, that if asbestos was brought into my home, for 3 example, or your home, that it would in all probability be 4 eliminated from the home either by air exchange or 5 electrostatic bonding within two or three hours; is that 6 right? 7 A In what way are you hypothesizing? That it was 8 brought in through the air? 9 Q How about on my clothes. 10 A If you brought in a measurable amount on your 11 clothing and if there was a disturbance to your clothing 12 such that it got into the air, then those mechanisms I 13 spoke of would be active, yes. 14 Q And those mechanisms being air exchange and 15 electrostatic bonding would remove those fibers from -- the 16 respirable fibers from the air within two or three hours; 17 is that right? 18 A Most likely they'd be eliminated in the outdoor 19 air. But those mechanisms would apply, yes. 20 Q Now, you have no opinion concerning the levels of 21 asbestos at which mesothelioma occurs, do you? 22 A I'm not a medical doctor. 23 Q You have no opinion about the type of fiber, the 24 type of asbestos, and the ability to cause mesothelioma 25 other than what you may have discussed a little earlier; is 199 1 that right? 2 A I have an opinion, but I'm not offering it. My 3 expertise is as a mechanical engineer. 4 Q You have no opinion about the dimention or size 5 of asbestos fibers that would be most likely to cause 6 mesothelioma; is that right? 7 A Again, I have an opinion, but it's not based on 8 my experience as a mechanical engineer. 9 Q Now, if I came into a home and had asbestos on my 10 clothes and there was some disturbance that got some of it 11 off my clothes, anybody in the home who would be exposed to 12 that likely would not be exposed for more than what, two or 13 three hours if they had happened to be in the same room? 14 A Well, I think first of all, it's a question as to 15 whether mechanisms of that nature unless it was very 16 extreme could cause a level that we could measure above the 17 background levels. Remember, there's asbestos in the air 18 everywhere at measurable levels. And the -- some of the 19 effects may be such that they're so small that we can't 20 significantly determine that they're significantly 21 different from the levels that we find everywhere. 22 Q And Dr. Hammar when he testified showed us a 23 chart of some occupations with asbestos exposure resulting 24 in mesothelioma or other asbestos-related diseases. Part 25 of this list he showed us was a page of reports of people 200 1 who developed mesothelioma, and their only exposure was 2 living in the same house with somebody whose job involved 3 working with asbestos. Now, it would be your testimony 4 that that kind of exposure that was known to cause all this 5 mesothelioma that's reported here would be at background 6 levels? 7 MR. SPITALNIK: Your Honor, I'm going to object. 8 I think he testified he has no opinion regarding levels 9 which are sufficient to cause mesothelioma. 10 THE COURT: Overruled. This is 11 cross-examination. 12 THE WITNESS: Could I have the question again, 13 please? 14 Q (By Mr. Metcalf) You told us about if I came home 15 and had been out cutting kaylo for a couple hours today and 16 I come home and I got dust on my clothes and I get into the 17 house and my kid comes up and grabs me and says hi daddy 18 and I hug my wife and I go change clothes, that that kind 19 of exposure they have is essentially going to be background 20 exposure; right? 21 A Potentially and most likely, yes. 22 Q And in that case all these people that got 23 mesothelioma from household contacts got it from background 24 exposure. Is that your -- 25 A I have no opinion as to what the sources of those 201 1 mesotheliomas are. 2 Q Are you familiar with recent reports of 3 mesothelioma in people in buildings that just contain 4 asbestos-containing materials such as pipe insulation or 5 ceiling spray? 6 A I have heard there are reports of that nature. I 7 gather they are under enormous criticism. 8 Q Well, have you seen the Anals of New York Academy 9 of Sciences from 1991? 10 A May I see that, please? I think this is the 11 conference of plaintiffs' experts that was held in New 12 York, yes. 13 Q Like Dr. Bruce Case? 14 A I'm not sure. 15 Q It says here that it's printed by the New York 16 Academy of Science. 17 MR. SPITALNIK: Your Honor, I'm going to object 18 to foundation. 19 THE COURT: Overruled. I mean, I assume you 20 haven't finished laying foundation yet. That's one of the 21 doctors that's going to testify; is that correct? 22 MR. METCALF: Right. 23 Q (By Mr. Metcalf) Anyway, have you read this? 24 A No. 25 MR. METCALF: I have no other questions, Your 202 1 Honor. 2 MR. SPITALNIK: Just a couple questions. 3 REDIRECT EXAMINATION 4 BY MR. SPITALNIK: 5 Q Dr. Bragg, Mr. Metcalf asked you a little earlier 6 about different types of asbestos fibers. Now, do you have 7 an opinion regarding what type of asbestos fiber poses the 8 most significant health risks? 9 A I'm a mechanical engineer. When I speak of 10 risks I quote other experts and other regulatory bodies. 11 Q And we also talked briefly about the direction of 12 air flow. Does the direction of breezes in a building 13 impact upon the dilution of concentration of fibers? 14 A Not on average. 15 Q And can you explain that. 16 A If we hypothesize that a draft of air went say in 17 one direction, then a person who is downstream of that 18 might get a higher instantaneous value during that time. 19 However, there's an equal probability that that breeze will 20 go the other way, and in the other times the level will be 21 zero. So that on average the dilution is, as I stated 22 earlier, instantaneous. That may mean a whole lot of zero 23 exposures. Then this may be one or two or three or four 24 times zero. 25 Q So how does the direction of breezes impact upon 203 1 a time-weighted exposure? 2 A When you take the eight-hour time-weighted 3 average as you should do for the occupational exposure, the 4 direction would have no effect because the averaging is 5 what is done, what is important, and what is necessary to 6 do. 7 MR. SPITALNIK: Your Honor, may I approach the 8 witness? 9 THE COURT: You may. 10 Q (By Mr. Spitalnik) Mr. Metcalf talked to you 11 about Exhibit 20-3, and I believe that you pointed out that 12 if this was a collection hood it would be totally 13 ineffective. Why is that? 14 A Well again, I point out that the smaller duct is 15 what was pointed to here. And it is very common knowledge 16 and very important to the occupational hygiene and 17 ventilation people to know how short a distance these hoods 18 have an influence. 19 The -- the typical way of describing this is 20 these hoods collect within a distance away from the hood 21 equal to the width of the hood. And a situation we're all 22 aware of that explains that if you want to know how 23 neffective a section can be, think about not trying to blow 24 out a match, but trying to suck out a match, how very close 25 to your lips to get to be able to extinguish a match by 204 1 sucking. You realize how very close you have to get. 2 The other experience is when you're vacuuming you 3 lose efficiency vacuuming the minute the vacuum is not 4 quite close to the surface, the minute you lift the vacuum 5 away from the surface it becomes ineffective. The same is 6 true of these hoods. So their influence is only a very 7 short distance away. 8 Q How would that hood impact on fiber 9 concentrations which were not in the immediate vicinity of 10 that hood? 11 A Within a distance equal to the width of the hood 12 would be effective zero effect. 13 Q We also talked about on cross-examination talc. 14 And you mentioned that if talc is milled, a significant 15 portion of that talc would be respirable. Why is that? 16 A Well, because there's always a distribution; that 17 is, if that's the average size, then there will be some 18 much larger pieces and of necessity some much smaller 19 pieces. When you consider that a pile of milled talc say a 20 pound or two would have millions maybe billions of 21 individual pieces, there's plenty of opportunity for the 22 very small respirable ones to exist in that pile. 23 Q And also on cross-examination you talked about a 24 hypothetical where Mr. Metcalf comes home with fibers on 25 his clothes and talked about how the vast majority of those 205 1 fibers would be exhausted by ventilation and that some 2 fibers would be adhered to surfaces. Are those adhered 3 fibers still in the building? 4 A If there are adhering to solid surfaces in the 5 building, yes, they're still in the building. 6 Q Are they in the air though? 7 A No, they're not going to get in the air at the 8 moment. There's been an amount of -- measurement of 9 asbestos levels in buildings which contain asbestos, 10 biuldings which contained damaged asbestos, and buildings 11 which contain no asbestos and outdoor asbestos levels. In 12 the vast majority of cases there is no significant 13 difference in airborne asbestos levels between any of these 14 groups; that is, the airborne asbestos level in buildings 15 with no asbestos is comparable to those in buildings with 16 damaged asbestos to take one of those examples. And this 17 is part of the basis for being able to say that these kinds 18 of minimal exposure levels that you might get from these 19 things are not distinguishable from these background 20 levels. 21 MR. SPITALNIK: Thank you very much. 22 THE COURT: Any recross? 23 RECROSS-EXAMINATION 24 BY MR. METCALF: . 25 Q Dr. Bragg, do you have any idea why you were 206 1 asked about PEL'S, the average over a day, what is a peak 2 exposure? 3 MR. SPITALNIK: Your Honor, I'm going to object. 4 I think that's beyond the scope of redirect. 5 THE COURT: No, I think it is. 6 MR. METCALF: Well, it relates directly to these 7 average exposures in terms of what happens when you get a 8 very short term high intensity exposure. 9 THE COURT: All right. Objection overruled. 10 THE WITNESS: Can I have the question again, 11 please? 12 Q (By Mr. Metcalf) What's a peak exposure? 13 A A peak exposure is what regulations allow for 14 shorter periods of time, typically for 15 minutes or half 15 an hour. That purpose is to prevent the average being 16 generated from say 5 minutes of a very, very, very high 17 exposure. That is also disallowed in regulations. 18 Q Are you prepared to offer any opinion on what the 19 biological significance is of a peak exposure as opposed to 20 the same amount over a long period? 21 A I don't offer medical opinions. But it is my 22 understanding from the regulatory literature that asbestos 23 is a chronic exposure and not an acute exposure. And that 24 means that it is the longer term averages that are of 25 importance. 207 1 Q So that, for example, a high intensity short-term 2 exposure wouldn't override the lung defense mechanisms and 3 cause retention of more asbestos? 4 MR. SPITALNIK: Your Honor, I'm going to object 5 again. It's been stated many times he has no medical 6 opinions regarding mesothelioma. 7 THE COURT: That's going to be his answer. 8 MR. METCALF: Then if that's his answer I haven't 9 heard his answer. 10 THE WITNESS: I have been speaking outside my 11 expertise. 12 Q (By Mr. Metcalf) Okay. On average, Dr. Bragg, if 13 I got my one foot in a pail of boiling water and the other 14 in a pail of ice water I'll be comfortable, won't I, on 15 average? 16 MR. SPITALNIK: Objection, Your Honor. 17 THE COURT: The objection is sustained. 18 MR. METCALF: No further questions. 19 THE COURT: That crosses the line that defines an 20 argumentative question. 21 You may step down. 22 I'm going to ask the jury to step out a minute. 23 We may be through for the day, but we may not. So I'm 24 going take up a legal matter, then we'll bring you back. 25 (The jury left the courtroom, and the following 208 1 proceedings were had on the record.) 2 THE COURT: They ought to make the evidence 3 classes come to these trials. They can learn so much. It 4 demonstrates all kinds of obscure evidentiary issues such 5 as which lawyer can properly move to request the witness to 6 give a responsive answer. And although I think the law is 7 changing in that regard or, you know, what's an 8 argumentative answer, and my research discloses it has a 9 lot to do with the context, the tone of voice. And 10 although neither of those things were relevant in 11 Mr. Metcalf's last question, clearly it was -- that 12 statement was not a question. And that means it's 13 argumentative. 14 MR. GRAVES: The only reason it was held 15 argumentative was because he didn't raise his voice at the 16 end. He could have gotten away with it if he raised his 17 voice at the end. 18 THE COURT: I don't think so. That sounds like a 19 statement to me. 20 MR. GRAVES: All right. 21 THE COURT: If his voice would have indicated a 22 question mark it still would have been an exclamation to 23 me. It was a statement to the jury. 24 With regard -- 25 MR. GRAVES: Do we have another evidentiary 209 1 issue? I hope we don't because I fully expect to be able 2 to call Dr. Nancy Barr by deposition. 3 THE COURT: Well, now this sounds to me, 4 Mr. Graves -- I remember hearing you say the words 5 Mr. Metcalf is on a fishing expedition. He's just fishing 6 for a new expert and trying to find one. 7 MR. GRAVES: Exactly. That's the predicate upon 8 which I seek admission of this testimony. 9 You may recall that I resisted this deposition. 10 I resisted it on the basis that it performed no function in 11 this case. It was not to determine the basis of Dr. 12 Sherwin's opinion. It was an admitted and flagrant 13 statement that they're trying to determine whether or not 14 Dr. Barr should be a witness in this court. I objected on 15 that basis because she had not been designated as a 16 witness. 17 Now -- now, the Court wasted a half a day while 18 this deposition was obtained, and then even another hour 19 the next day so that we could obtain this marvelous 20 transcript, okay? 21 Before that deposition was taken I stood up in 22 this court and I pointed to Mr. Metcalf or Mr. Patrick, I 23 don't recall which, and I said if this deposition turns out 24 favorable to OCF, OCF is endorsing this witness. So 25 proceed at your risk. And low and behold we find that 210 1 there's some favorable testimony. 2 I withdraw all my objections to the deposition. 3 I withdraw every objection to every question that was 4 raised. And I ask that the Court permit this deposition to 5 go forward because there have been statements made by 6 Dr. Sherwin that indeed there was some reliance upon Dr. 7 Barr. 8 Dr. Barr has been eluded to throughout the course 9 of the trial, and I think it's only fair now for the jury 10 to get the entire picture regarding the immunohistochemical 11 testing undertaken by Dr. Barr. 12 Now, at the conclusion of the deposition I 13 immediately called Dr. Barr and asked her if she could come 14 forward and testify in person. And of course she refused. 15 And I said look. Judge Sandstead needs something more than 16 that. Would you write me a letter saying you can or you 17 cannot. 18 I have in my hand a letter dated November 20th 19 saying "Dear Mr. Graves, I will be unable to participate in 20 trial regarding Curtis Richie through December 15, 1992 due 21 to my responsibilities as Laboratory Director and Professor 22 at USC." 23 I've done my best to get her here, and I think 24 she would be a delightful witness. She sounds like a 25 delightful person once we got a hold of her. But in as 211 1 much as she's more than 100 miles from the court, I have 2 not -- I've done my best to get her here. This Court has 3 wasted valuable judicial resources in obtaining this 4 deposition. And if it's not put to use, then I think it's 5 travesty. At least it ought to be used now that it's been 6 taken and this Court has gone through so many hoops to 7 allow it to be taken. 8 THE COURT: Do you want to make a record, 9 Mr. Metcalf? 10 MR. METCALF: Yes, I do. 11 I guess first I would comment that if every 12 deposition that was taken was subject to Mr. Graves' 13 arguments, we would be here from now until 1994 reading 14 them because wouldn't it be a shame not to use them once 15 taken. 16 Dr. Sherwin's testimony I think pointed out that 17 Dr. Barr was more than just a technician. She provided the 18 interpretation of the results. And that's why we wanted to 19 take Dr. Barr's deposition was to see what the heck her 20 interpretation really was so we know whether or not 21 Sherwin's reliance on it was accurate. So we finally took 22 her discovery deposition, and she said what basically she 23 said in her report. 24 Now, Dr. Sherwin read the parts of Dr. Barr's 25 deposition into evidence today that counsel wanted him to 212 1 read, and he testified at length about what Dr. Barr did 2 and the tests she did and the meaning of it. Nobody has 3 ever endorsed Dr. Barr as a witness. So on that ground 4 alone I would suggest that it would be inappropriate to 5 present that deposition at this point. And counsel got it 6 all in already through Dr. Sherwin. So I object. 7 MR. GRAVES: If I may respond briefly, Your 8 Honor. Apparently designation of witnesses plays no role 9 on plaintiff's side of the bar. We seem to have these 10 mysterious people come in with videos that have no basis at 11 all in the courtroom whatsoever. Even from Judge 12 Sandstead's own lips I heard today that we really don't 13 have to worry about that deposition as being reflective of 14 what's going on at the Gates plant. I have no idea. Your 15 Honor, what the purpose of that deposition is now. 16 THE COURT: To show when you saw asbestos how 17 much drops off into the air. This helped the jury see that 18 asbestos does become loose when you saw it. That's what it 19 was for. 20 MR. GRAVES: But it doesn't show asbestos loose. 21 It shows white particles. The jury new that. And it's not 22 the fibers you see. You don't see fibers. So what I'm -- 23 I'm sorry. 24 I didn't mean to digress on that point, and I 25 would like to discuss that further with you when we get 213 1 through this. The point I'm trying to make is there have 2 been loose endorsements all the way through this trial, and 3 that one is the most prejudicial as far as the defendants 4 are concerned. We even have people that haven't even 5 bothered to submit reports and have been permited to 6 testify. This lady has been subjected to rigorous 7 cross-examination. 8 I think what's most important, Your Honor, is the 9 last page which I ask you to consider. I did not read the 10 last page. I'm saving that for the jury, and I think it's 11 very important for the jury to hear this. This is when I 12 began my examination. 13 Question, "And do I construe your reports and 14 Dr. Taylor's reports correctly that based on all of the 15 evidence that you have before you, that the 16 immunohistochemistry favors carcinoma as opposed to 17 mesothelioma?" 18 Answer, "Yes." End of story. 19 The point is that is very, very powerful stuff. 20 Here is a lady that did 25 separate antibody tests and she 21 evaluated them in lugubrious detail and described them at 22 great length to Mr. Patrick. There's no question as to the 23 foundation of her opinion. It's solid and good stuff. And 24 I think the jury should have the benefit of that because 25 immunohistochemistry seems to be the banner on which flies 214 1 the plaintiff's case. 2 So therefore, Your Honor, I'm asking that 3 fundamental fairness be applied here. I'm entitled to at 4 least get the benefits that the plaintiff had under similar 5 circumstances, and most importantly, with very probative 6 type evidence. 7 THE COURT: I find beyond any doubt that to 8 permit Dr. Barr to testify by deposition would be a 9 complete and utter violation of the Court's responsibility 10 under Rule 403 and under 611, to prevent confusion of 11 issues, misleading of the jury, considerations of undue 12 unduly waste of time, needless presentation of cumulative 13 evidence. 14 I permitted the deposition of Dr. Barr because 15 plaintiff advised the Court that she was being relied upon 16 for his opinion in expressing his opinions; that is, of 17 Dr. Sherwin, that that was not mesothelioma. He was 18 permitted to do that at great length during his testimony 19 today. And for that reason I will deny the right to call 20 Dr. Barr as a witness and for any purpose. 21 MR. GRAVES: Your Honor, I would like to make an 22 offer of proof of the transcript dated November 20, 1992 23 and the letter from Dr. Barr, which I will mark as a joint 24 exhibit, No. 476. 25 THE COURT: I will make a record by saying I beg 215 1 the Court of Appeals upon reading this transcript to pay 2 particular attention, very close attention, to the detailed 3 testimony of Dr. Sherwin and to this deposition of 4 Dr. Barr, upon whom Dr. Sherwin sort of relied, but not 5 really, according to his own testimony. 6 MR. GRAVES: Thank you. 7 THE COURT: So I'll put them in the -- I have a 8 bunch of what I call court exhibits. But you can call it 9 whatever you want so that the record is clear. 10 MR. GRAVES: Yeah. 11 THE COURT: The Court has this abiding fear that 12 unless the entire record of every second of this trial is 13 read in great detail by the Court of Appeals, the Court's 14 rulings cannot be understood. In fact, based on the 15 rulings here, some of which rely on the history that this 16 Court has had in trying these cases, I think it's incumbant 17 upon any appellate court to appropriately under this 18 Court's rulings understand the legal issues involved; that 19 they read the transcripts of all 15 trials and all of the 20 detailed motions and rulings in all of those cases in order 21 to understand completely the rulings of this Court in this 22 case and in others in the past. 23 MR. GRAVES: I would hope. Your Honor, that if 24 appeal is required in this case that you would not require 25 the parties to certify the library that you've incorporated 216 1 and all of the transcripts of the 15 trials. I would beg 2 that you not do that. 3 THE COURT: I will incorporate whatever I can get 4 so they can read it all, because if it's not read the 5 issues cannot possibly be understood. 6 MR. GRAVES: But then that prohibits appeal 7 because there would -- would be no way that any party could 8 possibly justify the Court of the cost of that record. 9 THE COURT: Well, that's an interesting 10 proposition. 11 Well, can I send the jury home then? 12 MR. GRAVES: I'm sorry, Your Honor. That's what 13 I was counting on doing for this last 35 minutes. 14 THE COURT: Tell me who is -- oh, well, I don't 15 need to know. 16 We are ready to go for a full day tomorrow, or 17 can I tell them it's not going to be full? 18 MR. GRAVES: It's going to be - 19 MR. SPITALNIK: It's a full day tomorrow. 20 THE COURT: What can I tell them about Wednesday? 21 We should have the evidence -- well, I don't know because 22 you won't know until tomorrow. 23 MR. METCALF: Yeah, I -- I can get rebuttal 24 testimony. I will definitely try to have that person here, 25 it will be Wednesday, so that we can get it to the jury on 217 1 Thursday. There's a possibility that, you know, in 2 scheduling that I couldn't get anybody here until Thursday 3 morning. It's not going to be Dr. Teitelbaum. 4 THE COURT: I was going to say I need to know for 5 Mr. Graves' sake and for mine. And so I don't have to know 6 anymore about it if it won't be Dr. Teitelbaum. 7 MR. METCALF: One of the people I have attempted 8 to contact about this is Dr. Rose. 9 MR. GRAVES: I would say, Your Honor, I've had no 10 chance to depose Dr. Rose. What counsel is saying is I 11 must do in the face of every case is to depose the 2,000 12 experts that he's listed in this monster called CV2000. I 13 think it would be fundamentally unfair. 14 THE COURT: Didn't Dr. Rose testify in this case? 15 MR. GRAVES: No way. 16 THE COURT: She didn't? 17 MR. METCALF: No. 18 THE COURT: That was last month. 19 MR. GRAVES: I have never seen the woman, never 20 had anything to do with her in the courtroom. Therefore, 21 I'm starting in square one. That would be fundamentally 22 unfair. And I ask the Court to consider that in advance. 23 THE COURT: Well, let Mr. Metcalf ponder that 24 himself before I rule. 25 Well, Mr. Graves just handed the Court 218 1 Defendant's Exhibit OCF 476. It includes the telephonic 2 deposition of Nancy Jean Barr and her letter dated -- 3 MR. GRAVES: I think it's on the inside cover. 4 THE COURT: Oh, November 20th. And they are made 5 a part of the record. 6 Would anybody object if I asked my law clerk to 7 go in artd tell them they can go home? 8 MR. METCALF: No objection. 9 THE COURT: All right. Nine o'clock. 10 MR. GRAVES: All right. Could we take up one 11 thing? We don't need this on the record as far as I'm 12 concerned. 13 THE COURT: All right 14 (The trial concluded for the day.) 15 ***** 16 17 18 19 20 21 22 23 24 25 219 1 CERTIFICATE 2 3 The above and foregoing is a true and 4 accurate transcription of my stenotype notes taken in my 5 capacity as Official Court Reporter, Division V, District 6 Court, County of Boulder, State of Colorado. 7 8 Dated this the 9th day of June, 1993. 9 10 11 12 13 DAWN R. MCWILLIAMS, CSR Official Court Reporter 14 15 16 17 18 19 20 21 22 23 24 25