Document pnN4GYm7Gyxd48LDpqMOZ1w7

1 CAUSE NO. 17958-JG01 2 JAMES BOREN, et al. * IN THE 3 Plaintiff * DISTRICT COURT OF 4 vs. * BRAZORIA COUNTY, TEXAS 5 THE DOW CHEMICAL CO., * 239th JUDICIAL DISTRICT 6 Defendant * 7 ------ 8 Deposition of JOHN W. SPENCER, was taken on 9 Friday, October 8, 2004, commencing at 10:03 A.M., at 10 1743 W. Nursery Road, BWI Marriott, Linthicum, 11 Maryland, before Susan Farrell Smith, Notary Public. 12 - - - - - - 13 APPEARANCES: 14 J. ROBERT BLACK, ESQUIRE 15 Heard Robins Cloud Lubel & Greenwood, LLP 16 rblack@heardrobins.com 17 One Allen Center, 500 Dallas, Suite 3100 18 Houston, TX 77002 19 713.650.1200 20 On behalf of the Plaintiff 21 REPORTED BY: Susan Farrell Smith 1 1 APPEARANCES: (Continuing) 2 RICKY RAVEN, ESQUIRE 3 ricky.raven@tklaw.com 4 Thompson & Knight. 5 333 Clay Street, Suite 3300 6 Houston, TX 77002 7 713.653.8669 8 On behalf of the Defendant 9 10 REPORTED BY: Susan Farrell Smith 11 12 13 14 15 16 17 18 19 20 21 2 1 WITNESS INDEX 2 JOHN W. SPENCER: 3 BY MR. BLACK: 4 4 EXHIBIT INDEX 5 SPENCER DEPOSITION EXHIBIT 6 1 Notice 5 7 2 List of documents 23 8 3 Safety manual 28 9 4 Tabs 4-A through E, Notes 34 10 5 Curriculum vitae 39 11 6 Invoices 41 12 7 Exposure analysis 69 13 8 Benzene standard 128 14 (Original exhibits retained by deponent) 15 16 17 18 19 20 21 3 1 JOHN W. SPENCER, 2 the Witness, called for oral examination by counsel 3 for the Plaintiff, having declared and affirmed under 4 the penalties of perjury to tell the truth, was 5 examined and testified as follows: 6 MR. BLACK: EXAMINATION 7 Q. Good morning, Mr. Spencer. My name is 8 Robert Black, and I represent the Borens in this 9 case. Would you state your name for the record? 10 A. John Spencer. 11 Q. And where do you live? 12 A. In Baltimore, Maryland. 13 Q. And what is your current occupation? 14 A. Industrial hygienist. 15 Q. What is an industrial hygienist? Could you 16 explain that, please? 17 A. It is a profession and a science which 18 evaluates occupational exposures, determines what sort 19 of controls or management techniques are necessary to 20 protect the health and safety of individuals in the 21 workplace. 4 1 Q. And I have here a copy of the notice for 2 your deposition. Is this the notice that you 3 received? 4 A. I don't know if I got a good look at the one 5 that I received. Is this the same one? 6 Q. That's why I asked that question because 7 that's an amended notice, and I believe the only 8 difference between that one and the first notice was 9 probably the date when the deposition was to take 10 place. 11 MR. RAVEN: Yes. 12 MR. BLACK: Is that your recollection? 13 MR. RAVEN: Yes, this is the notice. 14 MR. BLACK: I just wanted to make sure that 15 was the one. 16 We'll mark this as Exhibit 1. 17 (Whereupon Spencer Deposition Exhibit No. 1 18 was marked.) 19 Q. And you understand that -- that you've been 20 hired by Dow Chemical Company as an expert in this 21 case? Is that your understanding? 5 1 A. Yes. 2 Q. Okay. And who did you speak with first? 3 A. Jonathan Shoebotham. 4 Q. How long ago was that? 5 A. I don't specifically recall. I know it was 6 several months ago. 7 Q. Do you have a long-standing relationship 8 with Mr. Shoebotham? 9 MR. RAVEN: Objection to form. 10 A. I'm not sure what you mean by 11 long-standing. I've known Mr. Shoebotham for several 12 years. 13 Q. So, you have done -14 A. But that's -- my relationship goes as far as 15 having worked with him on other issues. 16 Q. So, you've served as an expert in other 17 cases that he's worked on? 18 A. Yes. 19 Q. How long ago -- or strike that. 20 When was the first time you ever met 21 Mr. Shoebotham? 6 1 A. Boy. I can't tell you a specific time. It 2 was several years ago. 3 Q. To serve as an expert in a chemical exposure 4 case? 5 A. Yes. 6 Q. Have you ever done any asbestos work, as an 7 expert in an asbestos case? 8 A. I'm sorry, for Mr. Shoebotham? 9 Q. Yes, sir. 10 A. Not that I can recall. 11 Q. Have you ever served as an expert in one of 12 Mr. Shoebotham's cases or someone from his law firm, 13 although he's recently changed law firms, but in the 14 past have you ever done any work as an expert for 15 Mr. Shoebotham or Mr. Redman in a silica case? 16 A. No, not that I can recall. 17 (Discussion off the record.) 18 Q. And when you were contacted by 19 Mr. Shoebotham, what did you all talk about as far as 20 your opinions in this case? 21 A. I mean, I don't have a specific recollection 7 1 other than I know generally when I look at any issue, 2 I want to understand the facts of the case, get a 3 preliminary understanding of what occurred, and what 4 materials I might need to review in order to develop 5 an opinion. 6 Q. What percentage of your income is derived 7 from serving as an expert in litigation? 8 A. I don't know the answer to that. I don't 9 break down my accounting that way. I will tell you I 10 have testified in the past, and giving this some 11 thought, that it varies, you know, on the day, week, 12 month from none to perhaps 30, 25 percent, 40 percent 13 on some occasions. 14 Q. Okay. I don't need an exact number. I was 15 just looking for a ballpark figure. 16 A. Yes. 17 Q. Have you ever testified at trial in a 18 chemical exposure case? 19 A. Yes. 20 Q. And when was the most recent trial 21 testimony? 8 1 A. Probably several months ago in New York 2 State. 3 Q. Was it a benzene case? 4 A. Yes. 5 Q. Do you have plans to testify in trial in the 6 next 45 days? 7 A. When is this supposed to go to trial? It 8 got moved; right? So, no, I don't believe so. 9 Q. Have you ever testified for a Plaintiff in a 10 chemical exposure case? 11 A. Yes. 12 Q. How long ago was that? 13 A. I've really lost the concept of time, but a 14 few years ago. 15 Q. Was it a benzene case? 16 A. I do not believe that benzene was included. 17 There were multiple aromatic hydrocarbons, but I do 18 not believe benzene was included. 19 Q. Was it on behalf of a worker with cancer? 20 A. It was several workers who had a whole host 21 of issues, medical issues. 9 1 Q. Do you remember where the case was filed? 2 A. West Virginia. 3 Q. Was it a Federal case? 4 A. I couldn't tell you. 5 Q. Do you remember the name of it? 6 A. Hall was the, I believe, the lead Plaintiff. 7 Q. Have you ever testified in a Federal case or 8 a case in Federal Court? 9 A. You actually mean in a trial? 10 Q. Or given a deposition. 11 A. Yes. 12 Q. So, you've prepared a Rule 26 disclosure in 13 the past? 14 A. Yes. 15 Q. Would you -- did you or do you currently 16 have a current Rule 26 disclosure as far as the cases 17 that you've served as an expert in? 18 A. I believe I brought a list. 19 MR. RAVEN: I got a list, but I don't know 20 if it -21 A. It's not current. 10 1 MR. RAVEN: It doesn't necessarily comport 2 with Rule 26, but it's a list of his trial testimony. 3 MR. BLACK: That's fine. 4 Q. How much do you charge for your consulting 5 fees, Mr. Spencer? 6 A. $225 per hour. 7 Q. And is that for document review? 8 A. Yes. 9 Q. Do you charge a flat rate for document 10 review -11 A. Yes. 12 Q. -- versus testimony? 13 A. Same great work at the same great price. 14 Q. $225 an hour? 15 A. Yes. 16 Q. How many hours would you say that you've put 17 into this case so far? 18 A. I don't know offhand. I've put in a fair 19 amount of time. There was a lot of documents to 20 review. 21 Q. I would imagine that's quite a lot of 11 1 documents. 2 A. A lot of testimony that I reviewed. 3 Several -- many hours, but I don't know specifically. 4 Q. You understand that depositions are going on 5 actually today and there were several yesterday and 6 there's been several this week. So -7 A. I've heard some of them. 8 Q. I'm sure it's going to be -- it would be 9 hard for you to say that you've seen everything, but 10 you have seen a list of what all has been going on. 11 A. Correct. 12 Q. But is it fair to say that you've seen 13 depositions, and in fact, we can probably take a look 14 at them just to make sure what all you've seen that -15 this certainly occurred prior to September 15th of 16 2004? 17 A. I believe so. I can't attest for every 18 deposition that's gone on, but I got the testimony 19 that I believe was relevant to developing my opinion. 20 Q. You've seen the deposition testimony of 21 Doctor Collins? 12 1 A. No. Not Doctor Collins. I don't recall. 2 Q. He's a Dow epidemiologist. 3 A. Oh, I may have gotten it, but I really -- it 4 wasn't critical to my assessment. 5 Q. What depositions did you feel were critical 6 to your assessment? 7 A. The testimony of Mr. Boren, of Mr. Boren's 8 co-workers, of Dow employees. 9 Q. And which Dow employees? 10 A. Let's see. There were several. I think 11 there was Mr. King, Mr. Nomily. There was 12 Mr. Daniels. I think there was also a Mr. Oge. I'm 13 not sure how to pronounce -- Oge, O-G-E or -14 Q. Ogel? 15 A. Ogel. I'm sorry. Those are the ones I 16 recall offhand as far as Dow employees. I think there 17 was also a Mr. Slate as well. 18 Q. Have you seen the deposition testimony of 19 Marian Phillips? 20 A. That was the -- she -- epidemiologist or 21 researcher? 13 1 Q. I believe -2 A. Yes, I have. She has a two-part last name 3 though; right? Like a married name and maiden name 4 that she -- that's just what I recall from the 5 deposition. 6 Q. Have you ever published an article or a 7 paper on benzene? 8 A. A peer-reviewed article? 9 Q. Yes. 10 A. Not specifically on benzene, no. 11 Q. Have you published articles that touched on 12 benzene exposures? 13 A. Yes. 14 Q. And what would those be? 15 A. It was an article that really dealt more 16 with indoor air quality issues. It's on my CV. 17 Q. Indoor air quality issues at refineries 18 or -19 A. No, just in general. It had to do with 20 cause and effect. 21 Q. Do you hold yourself out as an expert in 14 1 hematology? 2 A. No. 3 Q. Do you hold yourself out as an expert in 4 epidemiology? 5 A. No, I'm not an expert in that area. But 6 certainly as an industrial hygienist, I have reviewed 7 the epidemiological literature to some extent just to 8 understand, further understand the basis for the 9 development of the health standards, but only to that 10 extent. 11 Q. As an industrial hygienist, what 12 specifically are you looking for in an epidemiological 13 study? 14 A. Well, as the industrial hygienist, my role 15 in such a study is to do the exposure assessment 16 component to retrospectively generally look back at 17 tasks, frequency and duration of tasks, products, the 18 nature of the product, the workplace environment. 19 Pool all those elements together in an attempt to 20 determine what the likely levels of exposure were. 21 Q. So, your role -- you see a role of an 15 1 industrial hygienist as being the on-the-ground data 2 monitor for the epidemiologist? 3 A. I guess that's one way of putting it, yes. 4 Q. I don't want to put words in your mouth. 5 I'm just trying to understand because aren't there 6 potentially two roles for an industrial hygienist in a 7 chemical plant setting? And one of them would be to 8 monitor data and ultimately get that data to an 9 epidemiologist for a published report, and the other 10 would be to monitor data for the safety of workers? 11 A. Yeah. But the process is the same, whether 12 it's a retrospective assessment or a current time 13 assessment. 14 Q. Okay. Have you ever done any work as an 15 industrial hygienist in a chemical plant setting? 16 A. Yes. 17 Q. And where was that? 18 A. I've been all over the country doing that 19 work in my career. When I worked for NIOSH, I worked 20 for the U.S. Coast Guard in my work as a consultant. 21 I've been in various chemical plants and refineries 16 1 around the country. 2 Q. But you were never employed directly by a 3 refinery or a petrochemical company; is that correct? 4 A. Actually working for them other than a 5 consultant? No. 6 Q. Right. 7 A. No, that's correct. 8 Q. Do you hold yourself out as a neurologist? 9 A. No. 10 Q. Are there any other fields or specialties in 11 which you consider yourself an expert other than 12 industrial hygiene? 13 A. Well, I think there's other areas that 14 are in -- go in tandem with the industrial hygiene for 15 my experience. I have extensive experience in 16 warnings, writing and developing warnings. I have a 17 strong background in toxicology although I'm not a 18 toxicologist. But again, that is as it relates to a 19 portion of industrial hygiene. 20 Q. Anything else? 21 A. Those are the primary areas. 17 1 Q. Would you consider warnings and labeling to 2 be the same thing? 3 A. Well, a label is a form of a warning. 4 Q. Would an expert in labeling also be an 5 expert in warnings, or is that not necessarily true? 6 MR. RAVEN: Objection to form. 7 A. No. There may be other types of warnings. 8 There may be something unrelated to the -- I can't 9 quite think of an example right now. I hate to be so 10 broad. Warnings that I deal with specifically are 11 labels and material safety data sheets. 12 Q. Do you consider yourself an expert in 13 warnings or labels under the Federal Hazardous 14 Substances Act? 15 A. Yes. I have included that in addition to 16 the Federal Hazard Communication Standard. 17 Q. So at trial, you would feel -- or you are 18 going to offer an opinion with respect to labels and 19 the Federal Hazardous Substances Act? 20 A. I do not plan on that at this time, no. 21 Q. You've not been asked to do that? 18 1 A. Correct. 2 Q. When you worked -- let me go off track 3 here. I do want to ask you about some of your job 4 experience in the past, but while we're on this 5 subject of labeling and the Federal Hazardous 6 Substances Act, I want to ask you real quickly about 7 your experience at NIOSH. Did you ever have any 8 dealings with the Consumer Product Safety Commission? 9 A. Not at NIOSH, no. 10 Q. Well, before we get into your opinions in 11 detail in this case, I should probably run through the 12 subpoena. I realize you brought a lot of documents. 13 We made an agreement with several other 14 experts in this case, since there are so many 15 documents, that if there is specific documents that 16 you are relying on as a basis for your opinions, that 17 you'll go ahead and pull those out and we'll attach 18 those as an exhibit. Because everything, I realize, 19 that you've looked at is relevant to some extent. 20 But if you have specific documents that you 21 use as the basis for an opinion that says essentially 19 1 the exposure levels or whatever aren't what Plaintiffs 2 think they are based on this document, I would like 3 for you to go ahead and pull those out. Does that 4 sound like a fair agreement? 5 A. (Gesturing.) 6 Q. Is this all it? There's nothing in these 7 one, two, three, four -- five boxes that you're 8 specifically relying on as the basis of any of your 9 opinions in this case? 10 MR. RAVEN: Well, objection to form. 11 A. This is a summary of a lot of materials that 12 are in those boxes. 13 Q. Are the materials that are summarized in 14 this referenced by Bates number in here, in your 15 summaries? 16 A. In some cases, yes. 17 Q. Can we take a short break while we look 18 through this? 19 A. Sure. 20 (Whereupon a brief break was taken, after 21 which the following was heard: 20 1 MR. BLACK: Back on. 2 BY MR. BLACK: 3 Q. Mr. Spencer, we just took a break, and we 4 were looking at some of the documents that you brought 5 in response to the subpoena duces tecum. If you could 6 point these out to me, which documents are responsive 7 to Request No. 1? 8 A. I'm sorry, what is Request No. 1? 9 Q. It's for any and all correspondence, 10 pleadings, medical and/or scientific articles, 11 depositions, medical records, written instructions, 12 photographs, videotapes, audio tapes, reports, et 13 cetera, or documents of any kind which you received 14 from Defendant's counsel or any employee, agent or 15 representative of any Defendant in this case. 16 A. Those are in Box 1 through 5. 17 Q. They're all over here? 18 A. Yes. 19 Q. Which is essentially the, all the evidence 20 in this case is what you're telling me? 21 A. Yes. 21 1 Q. Did you separate out the correspondence with 2 counsel? 3 A. Yes. 4 Q. Okay. And where are those documents? 5 A. They're in Box No. 1, right up front. 6 Q. Okay. We can take a look at those. And 7 most of these are forwarding letters just forwarding 8 on the documents produced or other evidence, 9 depositions, that sort of thing. 10 A. Yes. 11 Q. Is that correct? 12 A. Yes. 13 Q. Have you seen or did you get a chance to 14 read Doctor Rose's deposition? 15 A. Yes. 16 Q. Okay. Did you -- have you had a chance to 17 read Doctor Snodgrass' deposition? 18 A. I don't recall that, but I think that I had 19 looked at it. I don't recall reading that. 20 Q. It was pretty recent. 21 A. I don't think that I did read that. 22 1 Q. Is -- I notice the first letter is dated 2 April 8th, 2004. Would that be around the first time 3 you had contact with lawyers from Thompson & Knight 4 with respect to this case? 5 MR. RAVEN: Objection to form. 6 A. Yes. And anticipating your question in that 7 regard, I did search my memory yesterday, and I think 8 that's probably about accurate. But sometime just 9 prior to that. 10 MR. BLACK: Okay. We'll mark this as 11 Exhibit 2. 12 (Whereupon Spencer Deposition Exhibit No. 2 13 was marked.) 14 Q. Did you receive all the medical records that 15 have been produced in this case, or just -16 MR. RAVEN: Objection to form. 17 A. I can't tell you that I received all the 18 medical records. It's not something I even really 19 spent any time reviewing. 20 Q. Well, that's why I asked because most 21 industrial hygienists don't particularly care to see 23 1 that kind of information. And if they do, they just 2 want to see one page giving the diagnosis. That's 3 been our experience in the past. 4 I was just wondering -- so, medical records 5 play no role in the basis for your opinions? 6 MR. RAVEN: Objection to form. 7 A. I can't say they don't play any role. 8 There's nothing that I can cite you that I have relied 9 upon in any of those medical records. 10 Q. Fair enough. Could you point out the 11 documents that are responsive to Request No. 2, which 12 is any and all correspondence, pleadings, depositions, 13 medical records, written instructions, photographs, et 14 cetera, in whole or in part -- excuse me, and/or 15 document or any kind which form the basis in whole or 16 in part for any opinions you may render in this case? 17 These are documents that I'm going to ask you that you 18 are specifically relying on to form the basis of your 19 opinions. 20 A. Again, there aren't any specific medical 21 documents that I'm relying on to form my opinion. 24 1 Q. Well, I'm speaking in terms of a broader 2 sense such as industrial hygiene data from specific 3 units out at Dow Freeport. Have you reviewed any of 4 that? 5 A. I have -- yes. I have reviewed some of the 6 data. I have not completed that review. 7 Q. So, you're still looking at it? 8 A. There was hundreds if not thousands of data 9 points and -- which I recently received. Yes, I'm 10 still looking at that. 11 Q. To date at we sit here, are there any 12 documents such as industrial hygiene data that you've 13 looked at that you know you can specifically point to 14 and say, this document forms the basis of my opinion 15 with respect to benzene exposures at Dow Freeport? 16 A. From that monitoring data? 17 Q. Yes. 18 A. No, not at this point. 19 Q. So, you haven't formulated your opinion as 20 of today with respect to Mr. Boren's exposures at Dow 21 Freeport? 25 1 A. Correct. Well, let me -- well, let me 2 encompass that with, I have generally looked at the 3 data and looked at numbers. There were some data on 4 there, in there that was, I believe, regarding even 5 contractors, there were contractors who were 6 monitoring. All the numbers were for the most part 7 low, below today's occupational health standards. 8 So, I did look at that. I did take into 9 account those numbers. But I have not completed my 10 assessment, you know, as to the complete relevancy of 11 those values as they relate to Mr. Boren. It was just 12 for contractors in general. 13 MR. BLACK: Objection. Nonresponsive. 14 Q. So, do you have any documents responsive to 15 Request for Production No. 2 which are documents that 16 form the basis of your opinion? And perhaps we should 17 save that and maybe come back to it after I ask you 18 what your opinions are in this case, and maybe we can 19 find out which documents there are. 20 A. Well, there's -- you know, you've -- you 21 list depositions here. Certainly there's multiple 26 1 depositions which I rely on in forming my opinions, 2 both co-workers and Dow employees as we already 3 discussed. So, of Item No. 2, that's probably the 4 primary documents I would point to that helps me form 5 the basis of my opinions. 6 Q. So, primarily the depositions? 7 A. Yes. 8 Q. And not medical records? 9 A. Correct. 10 Q. And eventually all the industrial hygiene 11 data? 12 A. Yes. 13 Q. Is there any other particular category of 14 document that you would find in your experience that 15 you generally rely upon to form the basis of your 16 opinions? 17 MR. RAVEN: Objection to form. 18 A. Well, sure, there may be many other 19 documents. I may want to maybe perhaps look at 20 standard operating procedures, safe work permits, how 21 are things down within the facility. Further 27 1 description of the tasks and a further description of 2 the process lines and so forth. 3 Q. Have you seen any of those types of 4 documents in these boxes? 5 A. I mean, there is a -- yes. A safety and 6 loss prevention manual for contractors that I believe 7 is in that context. 8 Q. How did you organize your book here in terms 9 of numbers? Is it just divided by number based on -10 A. Yeah. 11 Q. So, they're not in any category? 12 A. Correct. 13 Q. Okay. Do you mind if we kind of pull it 14 apart and place them in response to these Requests 15 No. 1 through 16? 16 A. That's fine. I guess I can rebuild it. Do 17 you want to take this out? 18 Q. Yeah, if you don't mind. Then we'll go 19 ahead and label this as Exhibit 3. 20 (Whereupon Spencer Deposition Exhibit No. 3 21 was marked.) 28 1 Q. What is Exhibit 3, Mr. Spencer? 2 A. The safety and loss prevention manual for 3 contractors dated February 1967. 4 Q. And how long ago did you receive this 5 document? 6 A. I can't tell you a specific time. I've had 7 it for some time, but I can't tell you exactly when. 8 Q. Is benzene mentioned in that document? 9 A. I do not believe that benzene specifically 10 is mentioned. This is talking about processes in 11 general. No, I don't recall benzene being mentioned. 12 Q. Okay. Moving on to Request No. 3, any and 13 all notes, memoranda, correspondence, reports, written 14 opinions and/or documents of any kind which you've 15 provided to Defendants, Defendant's counsel or any 16 agent, employee or representative of Defendant's 17 counsel in this case. Do you have any of those 18 documents? 19 A. I don't think I have any notes or anything 20 as you've just described that I provided to 21 Defendant's counsel. 29 1 Q. Okay. And Request No. 4 is the inverse of 2 that. Any and all correspondence, memoranda, notes, 3 reports and/or documents of any kind which evidence, 4 reflect or relate to any communications between you 5 and any other witness in this case, including any 6 other witnesses offered by Defendants. Have you -- in 7 other words, have you written any notes to other 8 experts in this case? 9 A. No. 10 Q. Have you talked to any other expert in this 11 case? 12 A. No. 13 Q. Not on the telephone nor letter? 14 A. No. 15 Q. Or e-mail? 16 A. No. 17 Q. So, you have no documents responsive to 18 Request No. 3 or 4? 19 MR. RAVEN: Well, objection to the form of 20 that question. The way the request is written, it 21 could include everything including the Old Testament 30 1 tablets. He has what he has, which is all five boxes 2 and -- I mean, that's what we're producing in response 3 to your duces tecum. 4 So, I just want to make sure that that's 5 clear on the record. The whole thing is in response 6 to your duces tecum. 7 MR. BLACK: But not broken out individually? 8 MR. RAVEN: Well, he has broken it out. 9 He's given you his tablet right here. But I don't 10 want it in the record that he -- because he hands you 11 one piece of paper, you want him to commit to the 12 testimony that this is the only piece of paper in 13 response to a particular number because that's not 14 true. 15 The whole -- all five boxes that we've 16 brought here for your inspection today are in response 17 to your duces tecum. Because your duces tecum is so 18 broad, I mean, we can't produce a binder. I mean, the 19 way it's written, it could include, I mean, the Holy 20 Grail for all we know. 21 MR. BLACK: Well, I appreciate that. 31 1 Q. But what I'm basically saying is, if there 2 is a document over here that you are going to rely on 3 at trial and say, here's my opinion, I'm using this 4 document as a basis for my opinion, and it's over 5 here, can we at least identify that? 6 A. There is -- I can't cite you a specific 7 document that's over in that set of five boxes right 8 now that I would pull out that meets the criteria you 9 just established. 10 I think the things that I'm relying on I 11 tried to condense into this binder here, my notes and 12 review of the depositions, your expert's report. 13 I did a summary of exposure for Mr. Boren 14 which include your expert's summary of exposure. And 15 then I did a summary of exposure. That's in this 16 binder. These are my notes. And the basis for my 17 opinions and my summary are all attached behind this 18 condensed worksheet. 19 Q. Okay. 20 A. Other than what's in here, I can't cite you 21 anything else in those boxes that were over there at 32 1 this point in time. There's nothing in particular 2 that -- it doesn't mean I wouldn't want to pull out a 3 particular document at some point, but I can't cite 4 you anything right now. 5 Q. Well, let me ask you this: Are these 6 documents that have been produced in this lawsuit? I 7 mean, there's nothing in these boxes that is yours -8 A. No. 9 Q. -- that none of the parties have in this 10 lawsuit? 11 A. Yeah, I believe that's correct. The only 12 documents that, I don't know, you may or may not have 13 are some, are literature that deal with dermal flux 14 rate calculations for absorbed dose through the skin 15 that are in this binder. 16 Q. And you're producing those today? 17 A. If you want them. 18 Q. We want them. 19 A. You got them. 20 Q. If they form the basis of your opinion, we 21 want them. Thank you, Mr. Spencer. 33 1 Request for Production No. 5, any and all 2 notes, memorandum, reports, correspondence, summaries 3 and/or documents of any kind which evidence or reflect 4 the factual observations, mental impressions and/or 5 expert opinions. 6 A. Those are the notes that are in this binder, 7 the summary notes primarily that comes from deposition 8 testimony and Interrogatory answers. 9 Q. Okay. If we can mark those Exhibit 4, I 10 believe. It's going to be several tabs; won't it -11 A. Yes. 12 Q. -- in your book? 13 A. Start here. 14 (Whereupon Spencer Deposition Exhibit 15 Nos. 4-A through 4-E were marked.) 16 Q. Okay. We left off at No. 6. Copies of any 17 and all drafts and memorandum, reports, 18 correspondence, summaries or opinions or other 19 documents which evidence or reflect your factual 20 observations, mental impressions and/or expert 21 opinions in this case. Have you done a report? 34 1 A. No. 2 Q. Not a written report other than your 3 exposure analysis -4 A. Correct. 5 Q. -- in spread sheet format? 6 A. Correct. 7 Q. But there's no summary explanation of that? 8 A. Only what's, you know, attached as footnotes 9 to the table explaining how we derive those numbers. 10 But not in a written -- in what I call a report 11 format. 12 Q. Okay. No. 7, copies of any and all medical 13 or scientific books, treatises, articles, abstracts or 14 documents of any kind which form the basis in whole or 15 in part of any opinions you may render in this case or 16 upon which you may rely in rendering the opinions? 17 A. Well, the only things which I mentioned 18 before, articles I do not believe you have are what 19 are attached here that are a part of what we marked as 20 4-E. So, mark these separately or they are part of 21 4-E? 35 1 Q. That's fine. As long as they're labeled. 2 We don't need to label them twice. 3 Are there any additional treatises or 4 articles that you would include in that category that 5 are not part of 4-E? 6 A. No. 7 Q. We'll go from there and leave them 4-E. And 8 these are articles dealing with dermal exposure to 9 benzene? 10 A. Yes. 11 Q. Okay. No. 8, copies of the results of any 12 MedLine, tox line, hazardous substances data bank or 13 similar search, computer system search for medical 14 scientific or regulatory articles? 15 A. None. 16 Q. Copies of any and all medical or scientific 17 books, treatises, articles, abstracts or documents of 18 any kind which directly or indirectly demonstrate a 19 causal association or lack thereof between benzene -20 or between exposure to any substance at issue in this 21 case and the development of myelodysplasia which 36 1 should be acute myelogenous leukemia. 2 A. Uh-huh. 3 MR. RAVEN: Objection to form. 4 Q. That was a mistake. 5 A. I was going under the premise that it was 6 for the -7 MR. RAVEN: We don't have myelodysplasia. 8 Let's go on to the next one. 9 A. No, I don't have any such articles. 10 Q. And normally you wouldn't rely on those as 11 an industrial hygienist anyway? 12 A. Yeah. Normally, no. I mean, certainly it 13 may be literature that I look at and look for 14 information that's important to me as an industrial 15 hygienist, but generally I am not testifying to 16 causation. 17 Q. Okay. No. 10, any and all correspondence, 18 memoranda, notes, task studies, investigations, 19 reports, data, data complications, et cetera, of any 20 kind upon which you have based any factual 21 observation, mental impressions or expert opinions you 37 1 may render in this case concerning levels and duration 2 of exposure to the Plaintiff to any substance at issue 3 in this case. If you'd like, you can take a look at 4 that. 5 A. Yeah. I'm sorry, which one was that? 6 Q. No. 10. This one is really kind of right up 7 your alley so to speak. So, I was -- and you may have 8 identified some of those documents already. 9 A. I've identified some, and I think the other 10 that I identified is also the data that was provided 11 from Dow on industrial hygiene data, which I think, as 12 I think I discussed earlier, I've not completed my 13 review and analysis of all that to fit that into my 14 opinion at this point other than the data I looked at 15 is generally very low. 16 There was also a document somewhere in those 17 boxes that goes back -- I believe it was a document by 18 Roger Daniels. I believe it was also -- it may have 19 been an exhibit that was produced in the recent 20 testimony by Frank Parker produced by your firm that 21 dealt with some peak levels of benzene exposure, but I 38 1 think -- I guess that's not something I'm using in 2 forming my opinions. So, I guess it's not responsive 3 to No. 10. 4 Q. Okay. 5 A. I'm sorry, I'm thinking out loud here. 6 MR. BLACK: I'll object to the nonresponsive 7 portion of that. 8 Q. No. 11, your most current and complete 9 resume or CV. The CV I have looks like it's dated 10 March of 2002. 11 A. This is March of 2004. 12 Q. Perfect. 13 MR. RAVEN: Is that Exhibit 5? 14 MR. BLACK: This is Exhibit 5. 15 (Whereupon Spencer Deposition Exhibit No. 5 16 was marked.) 17 Q. And in the past two years, what's new about 18 this, about your CV? Have you published some new 19 articles? 20 A. No, not that I published any articles. 21 Primarily presentations that I've given to other 39 1 industrial hygienists at national conferences. 2 Perhaps some courses that I've taken. Professional 3 development classes. I think that's primarily it. I 4 think I got another certification related to indoor 5 air quality investigations since that time. 6 Q. Sick building syndrome and that kind of 7 stuff? 8 A. An old term, but yes, that's one that's 9 still around. I think they changed the name to toxic 10 mold. Of course, all mold is toxic. So, I don't know 11 what you're going to do. 12 Q. All right. We're almost done with the 13 laborious task, Mr. Spencer. 14 No. 12, which asks for your entire file 15 concerning this case and your work on this case, 16 including any fee retainer or engagement you have with 17 the Defendants or defense counsel. Do you have a 18 written fee agreement? 19 A. No. 20 Q. It's all oral? 21 A. Yes. 40 1 Q. Do you have copies of any checks you've 2 received? 3 A. No. 4 Q. Have you been paid yet? 5 A. You know, I haven't even checked that. I 6 probably should have before this deposition today. 7 Q. Well, I think they're pretty good about 8 paying. 9 A. I did bring the invoices. 10 Q. You did? 11 A. Yes. 12 Q. So if you can pull those out, we'll attach 13 those as Exhibit 6. 14 A. (Complies.) 15 Q. It looks llike most of them are paid. 16 (Whereupon Spencer Deposition Exhibit No. 6 17 was marked.) 18 Q. I see that there's telephone conferences 19 with client. Your client, which would be Thompson & 20 Knight or Dow Chemical? 21 A. Thompson & Knight. 41 1 Q. I just wanted to clarify that. So to date, 2 you have probably billed almost $30,000 in this case. 3 Would that be a correct statement? 4 MR. RAVEN: Objection to form. 5 A. You know, it isn't even added up. Somebody 6 told me it was around 25. Yes, I would agree with 7 what you said. 8 Q. And your entire file, do you consider all 9 these documents your entire file for this case, or do 10 you consider the notebook you have in front of you 11 your file for this case? 12 A. Well, that's the five boxes plus this 13 notebook are my entire file. 14 Q. Your entire file, okay. Did you bring any 15 time sheets or do you keep those in your head? 16 A. No. The invoices reflect the time. 17 Q. Okay. How do you keep time? Do you just 18 have a little book that you write in it or -19 A. Yes. Well, it's just time that we spend on 20 doing a particular task is turned into our bookkeeper. 21 Q. So, you have time sheets? 42 1 A. Yes. Yes. 2 Q. But you didn't bring any of those today? 3 A. No. That's reflected in the invoices. 4 Q. Did you bring any and all documents of any 5 kind which evidence or reflect any payments made to 6 you by or on behalf of Dow or their lawyers in this 7 case, which I see some of these are marked paid, and 8 that's indicative of some expenses that they paid you? 9 A. Yes. 10 Q. No. 15 asks for any and all documents, 11 records and medical records of any kind discussing or 12 concerning the physical medical condition of the 13 Plaintiff. You didn't bring any of those; did you? I 14 mean, those aren't really something that you're, 15 you're relying on as a basis of your opinions? 16 A. Correct. 17 Q. What is your understanding of Mr. Boren's 18 medical condition? 19 A. That he has a form of leukemia. I don't 20 know the current status of his condition, if that's 21 what you're asking. 43 1 Q. Well, it was just that, that he was -- that 2 he's been diagnosed with leukemia. Are you aware that 3 he had acute myelogenous leukemia? 4 MR. RAVEN: Objection to form. 5 A. Yes. I'm not attuned to the specifics of 6 the origins of that AML, but yes, I'm aware. 7 Q. And you've not been asked to do that in this 8 case? 9 A. That's correct. 10 Q. Do you have documents responsive to No. 16, 11 which would be all documents that refer or relate to 12 tests, studies, research and data which you rely upon 13 for your opinions? 14 A. I took that to mean that kind of another 15 broad brush at everything else that's already been 16 brought up here. And yes, I think all the things that 17 we've talked about were responsive to that. 18 Q. If you had to pick a category of documents 19 when you're reviewing a case other than the 20 depositions, which would be essentially the facts of 21 the case, from an industrial hygienist perspective, 44 1 which category of documents would be the most 2 informative to you to enable you to accurately assess 3 someone's exposure to chemicals? 4 MR. RAVEN: Objection to form. 5 A. To the extent there is specific data from 6 that facility, that's important. In the absence of 7 that data, literature or other studies of similar or 8 the same types of operations in the same conditions is 9 relevant, that kind of data, absent what you've 10 described, the testimony and so forth, the description 11 by the employees. 12 Q. So in this case, you would classify the 13 industrial hygiene data that you're currently 14 reviewing right now -15 MR. RAVEN: Objection to form. 16 Q. -- as probably the most informative in 17 formulating your opinions in this case? 18 MR. RAVEN: Objection to form. 19 A. Well, in terms of looking at my opinions in 20 this case, I don't know that's the most important. I 21 also utilized in this particular case -- because of 45 1 the infrequent nature of the activities of Mr. Boren 2 at the Dow facility, I also utilized the data provided 3 by your industrial hygiene expert in this case as a, 4 basically a worst case scenario. 5 I also had data that your expert has, as I 6 understand it, from an exposure assessment that I had 7 done involving a benzene-containing solvent that -- in 8 fact, the same type solvent Mr. Boren claims to have 9 worked with. 10 MR. BLACK: Objection to the nonresponsive 11 portion. 12 Q. And which solvent was that? 13 A. Liquid Wrench. 14 Q. Have you done any exposure analysis for 15 Liquid Wrench beyond your earlier assessment of 16 Liquid Wrench in other cases for this case? 17 That's perhaps a very bad question. But 18 what I'm asking you is: I know historically you've 19 done work on Liquid Wrench cases, and you did a 20 reconstruction of benzene-spiked, I believe were your 21 words, Liquid Wrench. Where you spiked modern-day 46 1 Liquid Wrench with certain quantities of benzene. 2 Have you done an independent analysis of 3 Liquid Wrench separate from that earlier study for 4 this case? Have you basically done another spiking? 5 A. No, I have not. 6 Q. Have you done another spiking since that 7 original test that you performed, which I believe was 8 in 2001, if I'm not mistaken? 9 A. No, I think it was later. 10 Q. Was it? 11 A. But to answer your question, no. 12 Q. That's the only Liquid Wrench test you've 13 ever performed in a clinical environment so to speak? 14 A. I don't know if I'd call it clinical, but in 15 an actual environment versus, you know, a modeled 16 environment, yes. 17 Q. So, do you have -- and it's probably been a 18 while since you've looked at your deposition in the 19 Cowey case. Do you remember that case? 20 A. I remember the case. 21 Q. It was about a year ago, and it was a 47 1 telephone deposition. I believe you were in New York 2 at the time. 3 A. You didn't do that; did you? 4 Q. I was present. 5 A. I don't remember. 6 Q. Lance Lubel was the Plaintiff's lawyer that 7 did that case. 8 A. Oh, yes, he did depose me before. I 9 couldn't remember. 10 Q. And the deposition probably lasted, I don't 11 know, maybe five hours. It was kind of difficult 12 because you were in New York. 13 A. Okay. 14 Q. And we talked about your modeling or 15 actually your testing of the Liquid Wrench. Have you 16 reviewed that deposition recently? 17 A. No. 18 Q. Have you been asked to look at that 19 deposition? 20 A. No. 21 Q. Have you been asked to give an opinion with 48 1 respect to Liquid Wrench based on your prior work in 2 Liquid Wrench cases in this case? 3 A. Yes. To the extent that at the time at Dow, 4 it adds to his -- potentially his benzene dose there, 5 yes. 6 Q. So, the basis for your opinions on 7 Liquid Wrench are those old studies, and by old I mean 8 just a few years ago, of Liquid Wrench? There's 9 nothing new on which you base your opinions on 10 Liquid Wrench; is there? 11 A. Well, let me just add. I have done -- I 12 presented this data at a national conference. I think 13 your industrial hygienist, he was there when it was 14 being presented. 15 Q. Right. He said he saw it. 16 A. Yes. I understand he liked it. We also did 17 a sophisticated modeling to determine whether that 18 modeling correlated with our actual air sampling, 19 which it did, and we presented that data at a 20 conference last year. 21 Q. Do you have transcripts of those -- of that 49 1 conference, or was -- was there any transcript made, a 2 videotape or -3 A. This particular session we did was a 4 technical session that was called a poster session, 5 and certainly we had copies of that. 6 Q. Is there any way -- they're big posters; 7 correct? 8 A. Yes. 9 Q. Would you mind making those available, 10 copies of them? 11 A. Well, I can get you the information because, 12 sure, we shared it with anybody who wanted the 13 information. 14 Q. Okay. But if you don't mind getting that to 15 your attorney, we'd love to see that. And was it a 16 new evaluation? Did you reevaluate the data? Did you 17 discover anything new, or was it basically, hey, this 18 is what we did, this is what we found? 19 A. No, it wasn't new. It was just a 20 presentation of what we had done. 21 Q. Okay. Well, with respect to your 50 1 opinions -- and you understand my job is to find out 2 what your opinions are in this case, and I know it can 3 be a laborious process. You've given depositions 4 before in the past. 5 I'll let you take a look at your expert 6 designation which -- this was the initial designation 7 which was filed in February of 2004. I'll let you 8 take a look at that real quick and see if that is an 9 accurate assessment of what you've been asked to do in 10 this case? 11 A. I think generally, yes. 12 Q. Is there anything on there that you've not 13 been specifically asked to do? 14 A. No. 15 Q. So, let me go ahead and read these into the 16 record. So, your opinions in this case, you'll offer 17 opinions on issues of occupational safety. You'll 18 offer an opinion on alleged occupational exposures to 19 chemicals of Mr. Boren. 20 You will give an opinion on the state of the 21 art for industrial hygiene and the state of the 51 1 knowledge at relevant points in time concerning 2 benzene and other chemicals. 3 You will give an opinion which will address 4 the alleged exposures of Mr. Boren to benzene and 5 other chemicals at the premises of Dow. And you'll 6 calculate the dose or quantity of such alleged 7 exposures. 8 And you'll also address issues concerning 9 training and warnings provided by Defendants, the 10 safety procedures and policies of Dow. And any 11 personal protective equipment and other means used to 12 protect workers at premises. And, of course, you'll 13 offer rebuttal testimony. 14 A. Yes. 15 Q. Are there any other areas that you've been 16 asked to cover in this lawsuit? 17 A. None that I can think of. 18 Q. Except perhaps warnings and labels, have you 19 specifically been asked to do that? 20 A. Well, that's mentioned in there. 21 Q. Or would you just categorize that in terms 52 1 of Federal Hazardous Substances Act? 2 A. Well, no. The Federal Hazardous Substance 3 Act, no, not so much. That doesn't really relate to 4 industrial operations. The Hazard Communications 5 Standard relates to that. 6 Q. So, you've not been asked to offer an 7 opinion with respect to the Federal Hazardous 8 Substances Act and labeling required by it for 9 products that contain benzene? 10 A. Correct. 11 Q. Do you feel that someone would need to 12 actually work for the Consumer Product Safety 13 Commission in order to be an expert on the labels that 14 are required by the Federal Hazardous Substance Act? 15 MR. RAVEN: Objection to form. 16 A. No, I don't think that's the case. There's 17 probably a number of consultants that are very 18 familiar with and work to develop consumer product 19 labeling, which is different from industrial 20 labeling. But they don't have to work -- have had 21 worked for the CPSC. 53 1 Q. So, you feel that -- or believe that someone 2 that worked for NIOSH such as yourself would be fully 3 qualified to offer an opinion as to labeling? 4 A. I'm sorry, I interrupted. It depends on 5 their experience and their background as to whether 6 they're qualified. It's not as much who they worked 7 for, but that plays into it. 8 Q. The reason I said NIOSH is because it's a 9 governmental agency, very involved. Well, with 10 respect to your opinion regarding occupational safety 11 and alleged exposures to chemicals of Mr. Boren, what 12 is your opinion in that regard? 13 A. Based on the description of his workplace 14 activities and the frequency and duration of those 15 activities, the workplace environment in which he 16 conducted those activities, his exposure at Dow was 17 generally low, and in fact, his overall dose was in my 18 view relatively low. 19 Q. And on what do you base that opinion? 20 A. The testimony that I have reviewed from 21 Mr. Boren, from his co-workers, from other workers at 54 1 Dow, from data produced by your own industrial hygiene 2 expert, which again I utilized in a -- as part of a 3 worst case assessment. 4 Q. Can we take a look at -5 A. I'm sorry, and any other literature. 6 Q. Could we take a look at that assessment? 7 MR. RAVEN: Let him finish his answer first, 8 Robert. 9 Q. I'm sorry, I didn't mean to interrupt you. 10 A. I'm not sure. I think I finished. And 11 you're talking about my assessment or your expert's 12 assessment? 13 Q. Well, both. Let's start with yours and then 14 we'll take a look at your criticisms of -- and you're 15 speaking of Frank Parker; is that correct? 16 A. Yes. 17 Q. Then we'll take a look at your criticisms of 18 Frank Parker's work, which I'm sure you have some. 19 A. Okay. 20 Q. Now, this has been marked as Exhibit 4-E, 21 and this is your exposure analysis of Mr. Boren's 55 1 lifetime exposure to benzene? 2 A. At -- no. His work at Dow. 3 MR. BLACK: Okay. Do you want to take a 4 break for a second while I look this over? 5 MR. RAVEN: Sure. 6 (Whereupon a brief break was taken, after 7 which the following was heard: 8 Q. All right. We just took a little break so I 9 could get a chance to review your exposure 10 assessment. Could you explain how you derived at 11 these numbers, Mr. Spencer? 12 A. Well, the way we derive numbers is to follow 13 a similar process that Mr. Parker did with, I think, 14 some exceptional differences. We broke down the 15 products that the Plaintiff claimed, that Mr. Boren 16 claimed that he used and the time periods he claimed 17 to have used those products at the Dow facility. And 18 so, you know, based on testimony primarily. 19 As to the Liquid Wrench, which he claims to 20 use, I believe it was six to eight times a day, five 21 days a week, we factored in results from our study, 56 1 which Mr. Parker used the results from our study. I 2 think he indicated that was the best data that was out 3 there. And we used an average benzene concentration. 4 And the criteria for that data is reflected in other 5 parts of this document as to what we chose. 6 For instance, we used 12.7 percent benzene 7 in the Liquid Wrench. So, we felt that was -- and I 8 believe Mr. Parker did something similar. And came 9 out with the average concentration times the number of 10 years that Mr. Boren worked with that product to 11 calculate a PPM year dose from using that product 12 based on that frequency. 13 Q. Well, I noticed that for -- in terms of 14 inhalation of Liquid Wrench, you listed exposure time 15 of 4.4 years, which is roughly half of the nine years 16 that Mr. Parker attributes to Liquid Wrench use. How 17 did you arrive at 4.4? 18 A. And I think that's one of the striking 19 things we did different from Mr. Parker. We refined 20 what you all provided in Interrogatory Answers, and 21 what I mean is the Plaintiff provided in terms of 57 1 where he said he was, what contractors he worked for 2 and at what periods of time. 3 And we went to his Social Security records 4 and looked at the earnings for those contractors 5 within those years and took a very conservative 6 number, basically close to minimum wage for each of 7 those activities to determine his number of hours. We 8 then converted those number of hours into years. And 9 that's why you see a difference in time here. 10 He wasn't working at the Dow facility in 11 1969 through 1978 every single day of the week. So, 12 we took the specific records as provided by the 13 Plaintiffs in the case, compared that with his Social 14 Security records to come up with his actual time. So, 15 ours is more refined, and that's why you have less 16 years. 17 Q. So, this would just indicate his 18 Liquid Wrench use while on the premises of Dow? 19 A. Correct. 20 Q. It does not include Liquid Wrench use either 21 at home or at another facility? 58 1 A. Correct. 2 Q. Okay. Do you consider exposures to benzene 3 to be cumulative? 4 A. It is my understanding that the disease 5 process is based on a cumulative dose, yes. 6 Q. So if Mr. Boren were using Liquid Wrench at 7 Dow for four and a half years, but he was also using 8 it at other places, would his exposure to the benzene 9 in Liquid Wrench be cumulative in terms of his 10 disease? 11 MR. RAVEN: Objection. Form. And this is 12 contrary to every position that you all have ever 13 taken in the case. Because when I questioned 14 Mr. Parker, your position was -- is that it doesn't 15 make a difference where he was ex -- where he worked. 16 That all you want to talk about is Dow. 17 Now you want this witness to opine about 18 what he allegedly got at Dow and what he allegedly got 19 at some other facility, which is clearly -- there's no 20 evidence to support that in the record. 21 Q. Do you feel qualified to answer that 59 1 question? 2 A. I can't speak to his use of Liquid Wrench at 3 other facilities. I mean, I don't know exactly his 4 use and how he used it and whether those employers 5 were having him follow the warnings that were on the 6 Liquid Wrench can to prevent skin contact, which his 7 contractor employer should have been doing here at the 8 Dow facility. 9 MR. BLACK: Object to the nonresponsive 10 portion. 11 Q. Do you have any evidence that -- or have you 12 seen any evidence that Dow required their contract 13 workers to wear chemical resistance gloves? 14 A. I can't -- no. In this timeframe, all I can 15 speak to is the contractors safety manual that 16 basically provides the criteria. The contractors will 17 do the things that are appropriate to protect the 18 health and safety of their workers. So, that 19 particular document, I think which was -- the version 20 I have is 1967, well before he got there, basically 21 requires -- you know, makes it clear to the 60 1 contractors they need to be doing the right things to 2 protect their employees. 3 MR. BLACK: Objection. Nonresponsive. 4 Q. Let me get back to your exposure 5 assessment. Could you explain how you arrived at .37 6 PPM? 7 A. That is the average of the eight-hour 8 time-weighted averages from our study. 9 Q. And what is your understanding of how 10 Mr. Parker arrived at .43? 11 A. He did the same thing. He just -12 unfortunately instead of getting a copy of my paper 13 presentation, he wrote down and I think reversed some 14 numbers. So if he did it the same way, he just 15 unfortunately -- he wrote down the wrong number when 16 he was copying down the information from our session. 17 Q. The oral presentation that you spoke of 18 earlier? 19 A. No. The technical poster session that we 20 did. 21 Q. Okay. 61 1 A. I would have given him a copy of it. All he 2 had to do was ask. 3 Q. Can we have a copy of it? 4 A. You asked and I said sure. 5 Q. So, you believe that he made a transposition 6 error? 7 A. Correct. 8 Q. So, it should be .34 rather than -9 A. Well, no, no, no. This is his average based 10 on one of the numbers being transposed. 11 Q. Okay. 12 A. So, that's why his average number is 13 different from our average number. 14 Q. Do you know that for sure or -15 A. Yes. 16 Q. Do you know which number it was that he 17 transposed? 18 A. I believe it was for the seven percent 19 solution. 20 Q. Okay. 21 A. I -- honestly I have to go back and look. I 62 1 thought it was for the seven percent solution. 2 Q. And how did you arrive at that decision, 3 that he had transposed a number from the seven percent 4 readings? 5 A. From -- it may have been from -- I don't 6 know if it was from this deposition or from an 7 earlier -- another deposition he gave in another case 8 which he had looked at our data. He did the same 9 thing. 10 Q. So, it's your opinion that his calculations 11 are based on a transposition error from your original 12 study? 13 A. Yeah. You asked why the difference there, 14 and that's why. 15 Q. In earlier versions of this, which I believe 16 was given to -- this being your exposure assessment, 17 which is the version that was given to Doctor 18 Snodgrass a couple of days before his deposition, if I 19 can find it here, was also listed as an exhibit to 20 Doctor Nadelson's deposition. Have you read Doctor 21 Nadelson's deposition? 63 1 A. No. 2 Q. The estimated benzene exposure dose is 7.68, 3 and in your new version it's 10.86. How do you 4 account for the discrepancy? 5 A. Oh, the total dose? 6 Q. Yes. 7 A. I went through and there was something -- I 8 can't remember exactly now. I did something different 9 in the dermal dose calculation that I felt wasn't -10 that I did wrong. So, I revised it and I caused the 11 number to go up. 12 Q. So, you revised the dermal dose number? 13 A. Yes. That's what it was, the dermal dose. 14 Q. And why did you revise the dermal dose? 15 A. I can't remember exactly what I did in doing 16 the dermal flux calculation. I had something in my 17 math that was -- I think it was slightly off and 18 that's what changed it. You see the difference here. 19 Q. On the current version or the newest 20 version, it shows a concentration for dermal exposure 21 of 1.52 PPM, and your earlier version shows .20. 64 1 That's quite a big step up. What new information did 2 you find about dermal exposures that would cause that 3 significant increase? 4 A. It wasn't any new information. It was just 5 I made a -- I had to amend the calculation that I 6 made. It wasn't anything new. 7 Q. In your earlier version of this, you listed 8 Liquid Wrench exposure times as nine years? 9 A. Yes. 10 Q. And then in your newest version it's half of 11 that? 12 A. Correct. 13 Q. Why did you decide to revise that? 14 A. Well, because I wanted to be more accurate. 15 Q. You just wanted to show Liquid Wrench 16 exposure at Dow? 17 A. Yes. Well -- yes. At Dow and for the 18 actual number of years that he would have worked 19 there. 20 Q. How did you arrive at the dermal numbers? 21 A. It's based on a dermal flux rate 65 1 calculation. There are -- the papers that are in -2 follow 4-E, Marbach, Anjo, Hanke, Plank discuss based 3 on studies what the flux rate is, the absorbed dose 4 per unit over time per unit area of skin contacted. 5 So, a formula based on actual animal and human studies 6 which shows the absorption rate of benzene through the 7 skin. 8 Q. Could you point out which article that is? 9 A. Sure. This article, this article and this 10 article. 11 MR. RAVEN: Why don't you read the names of 12 those articles into the record? 13 MR. BLACK: That's what I was just going to 14 ask him to do. 15 A. Penetration of Benzene Through Human Skin. 16 Q. And who is that by? 17 A. That's Blank and McAuliffe. 18 Q. And that was published where? 19 A. The Journal of Investigative Dermatology. 20 Q. In what year? 21 A. 1985. 66 1 MR. BLACK: Do you mind if we mark these as 2 exhibits while we're going? 3 MR. RAVEN: They're already marked as part 4 of 4-E. 5 MR. BLACK: Okay. 6 Q. Absorption of Benzene Through Skin Into 7 Man. This is by Hanke, et al. It is part of the U.S. 8 Department of Labor OSHA Document 1970 -- it's an OSHA 9 dash 76 dash 56 document. 10 And the last is Percutaneous Penetration of 11 Benzene and Benzene Contained in Solvents Used in the 12 Rubber Industry, Marbach and Anjo, 1981 in the 13 Archives of Environmental Health. 14 Q. Are there any other articles that you used 15 for dermal exposure estimation? 16 A. No. 17 Q. And what was the absorption rate that you 18 used to calculate dermal exposures? 19 A. 0.1325. 20 Q. And what -- how is that measured, 0.? Is 21 that a ratio of -- 67 1 A. No. It's a number of milligrams per cubic 2 centimeter skin per hour, what's called dermal flux 3 rate. 4 Q. And how is that calculated? 5 A. It's based on the studies. You have kind of 6 a before and after. You put so much material on a 7 known area of the skin, you measure before, you 8 measure after you apply certain concentrations of a 9 benzene-containing solvent or a benzene solvent. 10 Q. So, it would vary depending on the 11 percentage of benzene in the mixture? 12 A. Sure. The dermal flux rate is going to vary 13 on benzene, but it really -- the -- when the studies 14 are done, they look at the number of milligrams of 15 benzene regardless of the percentage in the solvent. 16 It's just a function of the number of milligrams or 17 micrograms of benzene in the solvent. 18 Q. So, it's monitoring the benzene irrespective 19 of whether it's in a concentration of 30 or 70 20 percent? 21 A. Correct. 68 1 Q. Or one hundred percent? 2 A. That's right. 3 Q. The absorption rate is still going to be the 4 same if you have a given quantity. Is that how it 5 works? 6 A. Yes. 7 Q. Okay. Let's attach your earlier version as 8 Exhibit 7. 9 (Whereupon Spencer Deposition Exhibit No. 7 10 was marked.) 11 Q. In both versions of your report -- well, 12 actually first let me ask you, was this done on 13 Microsoft Excel? 14 A. Yes. 15 Q. Were the calculations done by the computer? 16 A. Well, after you put the formula in, yes. 17 Q. That's what I was asking. Did you create 18 formulas or macros within the data base that would run 19 these calculations? 20 A. Yes. 21 Q. Do you have those formulas with you? 69 1 A. Well, that's what's presented here. 2 Q. You just have the final result? 3 A. Yeah. Well, in terms of -- you know, I 4 don't have the formula that we put into the Excel 5 spread sheet, I mean. But that's the number of 6 milligrams per cubic centimeter per hour. You have to 7 pull that out. That's presented here in this page. 8 Q. Do you mind if you -- could you provide us 9 the formulas for how you calculated these? 10 A. Well, they're right here. 11 MR. RAVEN: They're right there. 12 Q. How am I supposed to read this? 13 A. I would get your expert. 14 Q. To me a formula is X plus Y equals whatever. 15 A. Well, you have to determine the amount of 16 material -17 Q. P equals NRT is a formula; is it not? 18 A. It is, but this is as well. You just have 19 to plug in the number of milligrams. So, what's the 20 total amount of benzene that's on skin based on -- and 21 how many square centimeters of skin surface are being 70 1 covered and for how long are they being covered, the 2 skin, by this material. And that's what gives you 3 your absorbed dose. 4 Q. How did you calculate this? I'm not the 5 best math student, but I'm looking for division signs 6 or multiplication signs. 7 A. Well -8 Q. Is this -9 A. It depends on -10 Q. -- the formula? 11 A. No, no. This flux rate, meaning how much 12 skin -- benzene transmits through the skin at this 13 rate, that's what the flux rate is. The number 14 changes depending upon how many hours that you're 15 inputting into the -- into your formula there. 16 Q. Well, I understand that, but it's -- would 17 there be a formula written out that would have hours 18 of exposure, the exposed area, the number of square 19 centimeters? I mean, is that hours of exposure 20 times -21 A. I don't have exactly here that shows -- I 71 1 think what -- you're looking for every single 2 mathematical step here. 3 Q. Right. 4 A. I can write that out for you and get that to 5 you. That's not a problem. It's a standard -6 Q. Standard formula? 7 A. Yes. 8 Q. That's what I'm looking for. My math 9 teacher always used to say, show your work. 10 A. Right. 11 Q. And that's just what I was looking for is 12 how -13 A. Well, that's here. I'm sorry. But that's 14 here for someone who knows how to do this. 15 Q. Right. 16 A. The data is here. 17 Q. Right. But you appreciate the fact that 18 juries -- the jury is going to be asked to look at 19 this? 20 A. Right. 21 Q. Hopefully they'll have had algebra and will 72 1 be able to grasp it. I doubt many of them will have 2 had calculus. 3 A. You don't need that. 4 Q. Good. Because all we need to be able to do 5 is multiply and divide? 6 A. Right. 7 Q. Okay. That's good. Because I think the 8 jury will be able to grasp that. 9 A. Right. 10 Q. And for us, we just wanted to see how you 11 calculated this. 12 A. Right. 13 Q. We're lawyers. We're not that smart. 14 A. That's what you have your experts for. 15 Q. Exactly. I also noticed on both charts 16 that -- Dow on-site inhalation. What does that mean? 17 A. That was the -- this was some of the data 18 that we talked about earlier that I have not finished 19 going through. This was -20 Q. So, these numbers are subject to change? 21 A. Actually in this particular case since I 73 1 have not finished my review of the data, we used the 2 number that Mr. Parker generated. 3 Q. Okay. Although with half the exposure time? 4 A. Well, with the corrected exposure time, yes. 5 MR. BLACK: Objection. Nonresponsive. 6 Q. Curiously on here there doesn't appear to be 7 any dermal exposure. Why is that? 8 A. You're talking about washing hands -9 Q. Washing -10 A. -- in benzene? 11 Q. -- tools in benzene. 12 A. Because of -- based on everything that I 13 reviewed from co-worker testimony and Plaintiff 14 testimony, that did not happen. 15 Q. Mr. Boren testified that he washed his hands 16 and tools in benzene. 17 A. Well, he testified that he did not know what 18 he washed his hands in, that he was told by some Dow 19 employees that he could not name that it contained 20 benzene. However, the testimony of every single Dow 21 employee and all the co-workers but Mr. Cook indicated 74 1 that it was a chlorinated solvent. They would have 2 used a nonflammable material for cleaning hands and 3 cleaning tools. 4 Q. Well, some of those other co-workers 5 testified that they used solvents that they didn't 6 know the name of it. 7 A. That's correct. Some did. Some were 8 specific in saying it was a chlorinated solvent. The 9 ones that didn't know what it was had no knowledge 10 that it was a benzene-containing solvent. 11 So with that testimony and given the fact 12 that Mr. Boren was working as a welder for -- I'm not 13 sure why he would wash welding tools. I know he 14 worked as a pipefitter for some time as well. 15 But in Plant A, my review of the testimony 16 from his co-workers is that he -- that was the only 17 plant Mr. Cook identified benzene being used as a 18 solvent for cleaning. And Mr. Boren was working in 19 Plant A as a welder. You cannot -- and I believe even 20 according to your own industrial hygiene expert, would 21 not expect a highly flammable solvent being used 75 1 around ignition sources like welding. 2 MR. BLACK: Objection. Nonresponsive. 3 Q. So, do you just not believe Mr. Boren when 4 he says he washed his hands and tools in benzene? 5 A. No. That's not -- you're misstating, I 6 think, what Mr. Boren said and also my opinions here. 7 I think Mr. Boren indicated he did not know what 8 solvent it was. He was told by Dow employees that it 9 was benzene. And someone may have said benzene, but 10 not an aromatic. It was not an aromatic benzene. 11 Q. So, there's -- there's a non-aromatic 12 benzene? 13 A. Yes. 14 Q. What is that? 15 A. It's an aliphatic hydrocarbon, does not 16 contain -- and it was commonly used for cleaning. It 17 was like a Varsol type product. 18 Q. And it's called benzine? 19 A. Yes. 20 Q. How do you spell benzine? 21 A. B-E-N-Z-I-N-E. 76 1 Q. So, it's Z-I-N-E? 2 A. Yes. But pronounced the same way. 3 Q. And it's an aliphatic hydrocarbon? 4 A. Yes. 5 Q. Who manufactures benzine with an I? 6 A. There were many companies that did it. It 7 was a generic term for cleaning solvents historically. 8 Q. In OSHA documentation that you look at and 9 other government sources, they refer to synonyms for 10 benzene with an E as also being benzine with an I. Is 11 that not true? 12 A. That is not true. 13 Q. And what is the basis for that opinion? 14 A. I've never seen that. I think you're 15 incorrect in saying that. I've never seen it produced 16 that way. 17 Q. So, benzine with an I, it's your 18 understanding benzine with an I has always been an 19 aliphatic hydrocarbon? 20 A. That's correct. That's what's in the 21 literature. 77 1 Q. So in your exposure assessment, you just 2 based -- it's your opinion that Dow employees were 3 mistaken that it was benzene? 4 A. No. That Mr. Boren was mistaken. 5 Q. Earlier you said they may well have told him 6 that it was benzene. 7 A. Well, he may have -- they may have told 8 him. I don't know what happened at that time, other 9 than most of the Dow employees who were deposed in 10 this case indicated they used a chlorinated solvent. 11 That was policy standard practice at Dow. And that's 12 typical for most industrial plants because of the 13 concern for fire. 14 He may have been told -- I wasn't there; I 15 don't know. He may have been told by some Dow 16 employee or someone else - I mean, he couldn't 17 remember who it was - that it was benzene, but it 18 would not have been an aromatic form of benzene. 19 Q. Chlorinated solvents are not flammable? 20 A. Generally that's correct, yes. 21 Q. What is it about chlorinated solvents that 78 1 makes them less volatile? 2 A. I don't know if I -- I can't -- I don't know 3 that I can sit here and can explain that. It's that 4 their flash point is much higher, meaning it takes a 5 much hotter source to ignite. 6 All things will burn at some point, but 7 unlike benzene which has a very low flash point, about 8 12 degrees Farenheit, these materials have a very high 9 flash point, have a very high boiling point. So, they 10 fall outside the definition of a flammable substance. 11 Q. So, it's your opinion that Mr. Boren's 12 exposure at Dow, Plant A, Plant B and Oyster Creek, 13 his exposure to benzene occurred from Liquid Wrench 14 use, both dermal and inhalation, and inhalation from 15 benzene used in the processes at those plants? 16 A. Benzene or benzene-containing substances. I 17 mean, really, we just took your expert's summary. I 18 think that -- I think what we'll find once we get 19 through all the data that I have overstated what his 20 exposure is as your industrial hygiene expert has 21 overstated when we apply some more of the factual 79 1 data. That's what I'm surmising. I can't say until I 2 finish my review of the data. 3 Having not finished that review, I simply 4 used the data as presented by your industrial hygiene 5 expert which was based on odor detection. And, of 6 course, there's problems with using that, but I was 7 just trying to be ultra conservative here. 8 MR. BLACK: Objection. Nonresponsive. 9 Q. So, it's safe to say that at trial, having 10 finished your review of the industrial hygiene data, 11 your exposure assessment will not include any dermal 12 exposure, any washing of hands and tools in benzene, 13 and it most certainly will be lower than Frank 14 Parker's estimate? 15 A. Yes. It's certainly lower than Mr. Parker's 16 estimate, yes. 17 Q. Have you seen -- or strike that. 18 Did you read George King's deposition? 19 A. Yes. 20 Q. Did you read the reference about a Dow 21 document that says, do not use benzene as a solvent? 80 1 A. I don't recall specifically that part. I 2 don't know what it was in reference to. 3 Q. There's a document that was circulated at 4 Dow in the mid-seventies that said benzene is not to 5 be used as a solvent. Do you remember that part of 6 the testimony? 7 MR. RAVEN: Objection to form. That's a 8 mischaracterization of the testimony. 9 A. I do not remember that testimony, no. 10 Q. Well, generally speaking, in terms of your 11 experience as an industrial hygienist, do companies 12 have to tell people not to do something if that kind 13 of behavior is not occurring? 14 A. You know, it depends on the circumstances. 15 Sure. People go through training, put out procedures 16 and -- as part of a proactive, preventative measure. 17 Sure, that occurs. I've seen that a number of times. 18 Q. In what respect? 19 A. In any respect. I mean, if -- in a lot of 20 plants, a lot of facilities, there's training for 21 everybody, that everybody goes through in use of seat 81 1 belts and driving vehicles on the plant or off site. 2 A lot of those people have -- you know, use seat 3 belt -- you know, all those people may use seat belts. 4 They don't know who is and who isn't, but they still 5 have this training. 6 When it comes to a particular solvent -- I'm 7 not sure the context -- or this -- what George King 8 said. Maybe we should look at that. That will help 9 me explain this or understand this better, but I don't 10 recall that specific testimony. 11 But there are preventative training sessions 12 that are done all the time where it doesn't mean that 13 somebody is doing it or that they're doing something 14 wrong. It's just part of being a proactive employer 15 in having an advanced program. 16 MR. RAVEN: Do you have the document -17 MR. BLACK: Objection. Nonresponsive. 18 MR. RAVEN: -- that you referenced? 19 MR. BLACK: I do. 20 We'll take a break while you review this. I 21 believe this is where it starts, around Page 68. 82 1 A. Okay. 2 MR. RAVEN: I thought you had a document. 3 MR. BLACK: I don't have that document with 4 me. I just have the testimony. 5 A. Okay. 6 Q. Have you seen that document in the documents 7 in these five boxes? 8 MR. RAVEN: Well, what document are you 9 talking about? 10 MR. BLACK: I have to get it to you. 11 A. I'm not entirely sure which document you're 12 referring to. 13 Q. That document didn't stand out to you if you 14 had seen it. Obviously it didn't. 15 A. Well, I don't -- if it's a document that 16 relates to laboratory use of benzene, which is what 17 I'm reading here from Mr. King's testimony, this was 18 potentially benzene being used as a laboratory reagent 19 which was common practice in laboratories. 20 I'm not sure what this has to do with the 21 industrial setting. That's what -- I guess that's 83 1 what I don't understand. If there's a document that 2 speaks to that, I need to see that. 3 Q. Fair enough. We'll get you that document. 4 A. Okay. 5 Q. Back to your exposure analysis of 6 Mr. Boren's exposures to benzene. This is it. This 7 is the only report you've produced so far in this 8 case? 9 A. Well, we call it a report. 10 Q. Well, your exposure evaluation, I guess is 11 what we'll call it. 12 A. Yes. A summary of that. 13 Q. Okay. And you've agreed to provide us the 14 underlying calculations behind your evaluation? 15 A. Sure. I think most of them are here. But 16 to the extent you need anything else clarified, I am 17 happy to do that. 18 Q. Well, if you could show us the math, that 19 would be great. 20 A. Okay. 21 Q. It would help. 84 1 MR. RAVEN: So, it's clear for the record, 2 what you asked him for was the formula that he used. 3 MR. BLACK: Right. 4 MR. RAVEN: Which is different from the math 5 so it's clear on the record as to what he needs to 6 produce. 7 Q. Are you willing to let us see the underlying 8 data, so to speak, of your evaluation? 9 MR. RAVEN: It's right here. 10 A. That's here. 11 Q. That's all the underlying data? 12 A. Sure. That's all you need. It's right 13 here. 14 Q. In your final report, you anticipate 15 referencing specific industrial hygiene documents for 16 your assessment of inhalation exposure for Dow on 17 site? 18 A. I would say that's highly probable. 19 Q. Okay. 20 A. There's a lot of good data, and I just have 21 not gotten through it all. 85 1 Q. Well, you're not going to issue a new spread 2 sheet like this and just say, you know, based on 3 industrial hygiene records? 4 A. No. If any change were to be made -- I'm 5 sorry to interrupt. It would be on the last line of 6 Dow on-site inhalation, which we may refine this 7 again. We simply used Mr. Parker's number based on 8 odor, which is not scientific. But if I can use the 9 data, I feel it's appropriate, then it may change that 10 number. 11 Q. What do you believe the odor threshold of 12 benzene is? 13 A. From the data that I have reviewed, it 14 varies and it varies according to circumstances. If 15 you're talking about pure benzene and benzene only, 16 the data I've seen is about one and a half parts per 17 million. There's some other data that shows four 18 parts per million or so. 19 Q. And that's for pure benzene? 20 A. Yes, in the absence of any other chemical. 21 And if you're in another mixed hydrocarbon 86 1 environment, I don't think you can distinguish the 2 odor of benzene. 3 Q. Have you seen the Dow chemical MSDS that 4 references the odor threshold of benzene as 25 parts 5 per million? 6 A. Yes. 7 Q. Do you just think that's not accurate? 8 A. No. I think that's, you know, within the 9 range. There's a lot of variation. I'm not sure the 10 reference source that that came from and what the 11 circumstances were for that. But, yes, I've seen that 12 document. 13 Q. And you just don't agree with it; you think 14 it's lower? 15 A. No. I think there's variations. And it 16 depends on the circumstances and depends on the 17 individual. 18 Q. Do you have any specific criticisms of Frank 19 Parker's benzene exposure analysis other than what 20 we've talked about already? 21 A. I don't -- no. Other than what we already 87 1 talked about. 2 Q. You just believe that he's over estimated -3 he made the miscalculation or the transposition of one 4 number in the, in your data from the Liquid Wrench 5 studies? 6 A. Yes. 7 Q. And you also believe he's over estimated the 8 exposure period? 9 A. Well, not the period, but the actual time in 10 terms of number of years. He just didn't refine that, 11 that's all. 12 Q. And you also believe he's over estimated the 13 inhalation on site exposure? 14 A. Oh, sure, yes. 15 Q. And he improperly in your opinion included 16 dermal and inhalation exposure for benzene being used 17 as a solvent to wash hands and tools? 18 A. Yes. 19 Q. Other than those criticisms, are there any 20 others you have? 21 A. I cannot think of any others beyond what you 88 1 just described. 2 Q. So, the basis -- or it's your belief that 3 Mr. Boren did not wash his hands and tools in benzene, 4 pure benzene? 5 A. Based on the testimony I reviewed, yes, 6 that's correct. 7 Q. Would it surprise you that that procedure 8 was common practice at other facilities? 9 MR. RAVEN: Objection to form. 10 A. Yes. I've never seen it at really any other 11 facilities. It's too dangerous a material from the 12 standpoint of flammability. 13 Q. Would these guys be smoking around it? 14 A. They could have been. They were certainly 15 welding. 16 Q. They were welding and smoking? 17 A. Well, I'm saying, as you're looking for an 18 ignition source, they could have been smoking around 19 it. I don't know. They -- but there was other hot 20 work going on. 21 Q. I realize you've not seen the testimony yet, 89 1 but Mr. Boren was redeposed yesterday and he -- and I 2 do want to let you get a chance to review that 3 deposition, which probably won't be available for a 4 week or so, but I just wanted to let you know that he 5 did clarify some issues about washing his hands and 6 tools in benzene. 7 He indicated that it occurred at the end of 8 the day. That predominantly it was after everybody 9 had finished working and it was the clean-up period is 10 what these guys call it. 11 Does that have any bearing on your opinion 12 in this case? 13 A. No. I mean, other -- so, he's changed his 14 testimony from doing it several times a day then to 15 just one time a day at the end of the day? 16 MR. BLACK: Objection. Nonresponsive. 17 Q. No. He's clarified the issue. 18 A. Okay. 19 Q. That -- I believe, and I haven't seen the 20 testimony either, I've just been told this, that he 21 said predominantly this occurred at the end of the day 90 1 when they would wash -- or at the end of the shift 2 which might have included lunch breaks, or break 3 periods. So, I'm not sure having not seen the 4 testimony. 5 But would that -- hypothetically, would that 6 type of testimony change your opinion about the use of 7 flammable solvents? 8 A. No. Again, based on all the other testimony 9 that's in this case, other than Mr. Cook, you know, 10 for specifically Plant A, all the other testimony is 11 that -- is what you would expect. There was a 12 nonflammable chlorinated solvent that was being used 13 to clean tools. 14 MR. BLACK: Objection. Nonresponsive. 15 (Whereupon a brief recess was taken, after 16 which the following was heard: 17 BY MR. BLACK: 18 Q. Okay. We just took a break. And when we 19 left off, we were talking about your exposure 20 assessment of Mr. Boren's exposures and any criticisms 21 you had of Frank Parker's exposure assessments. And I 91 1 had asked you about any of those criticisms and you -2 we went over those. Are there any others that we 3 didn't cover with respect to Frank Parker's -4 A. None others that I can think of at this 5 point. 6 Q. Do you have any criticisms of -- well, 7 strike that. 8 Before I ask you that, since this is on the 9 same vein, you've also -- we'll call that alleged 10 occupational exposures as one of the areas that you've 11 been asked to cover according to your CV, and you've 12 indicated that that is correct, that you've -- or not 13 your CV, your -14 A. Designation. 15 Q. -- expert designation. And you've indicated 16 that that is an area that you've been asked to cover. 17 And we'll move on to state of the art, which is an 18 area that you've also been asked to cover. What is 19 meant by state of the art? 20 A. I think that's -- it's an issue that 21 retrospective assessments of -- or evaluation of what 92 1 the occupational health standards were and the basis 2 for those occupational health standards. 3 Q. And what is your understanding of the state 4 of the art of benzene in an industrial setting? 5 A. Well, that the values have changed over time 6 and the understanding of the health effects have 7 changed over time. 8 Q. And when did those ideas change? Do you 9 have any specific dates that you can correlate? 10 A. Well, the specific one of the -- I guess -11 or I should say more significant recognition of 12 consideration in terms of health effects was probably 13 1976 when NIOSH recognized the -- leukemia as a form 14 of cancer as a result of benzene exposure. 15 Q. So, it's your opinion that leukemia was not 16 a recognized consequence of benzene exposure prior to 17 this NIOSH determination? 18 A. In terms of leukemia as a cancer, that it 19 wasn't -- NIOSH wrote a benzene criteria document in 20 1974. That was not considered a toxicological effect 21 at that time. They amended their document as more 93 1 information became available they felt was more 2 conclusive in 1976. 3 Q. Are you familiar, obviously you are, I saw 4 it in your book, with the 1948 American Petroleum 5 Institute -6 A. Yes. 7 Q. -- I guess you'd call it a study on the 8 hazards of benzene? 9 MR. RAVEN: Toxicological review. 10 A. Right. It was a summary review, that's 11 correct. 12 Q. Did you notice in there that the American 13 Petroleum Institute notes a consequence of benzene 14 exposure is leukemia? 15 A. Let's see. Yes. 16 Q. Wouldn't it be fair to say that member 17 organizations of the American Petroleum Institute or 18 member companies of the American Petroleum Institute 19 should have actual knowledge of what is in American 20 Petroleum Institute publications? 21 MR. RAVEN: Objection to form. 94 1 A. Yes. I would expect that, yes. 2 Q. Do you know when Dow Chemical Company became 3 a member of the American Petroleum Institute? 4 A. No. 5 MR. RAVEN: Objection to form. 6 Q. They've answered some Interrogatories in 7 this case indicating that they've been a member since 8 the 1920s. Would that surprise you? 9 A. Not one way or the other, no. 10 Q. Well, isn't it -- or would it be fair to say 11 that given this publication in 1948 listing leukemia 12 as a consequence of benzene exposure, that Dow 13 Chemical would have that knowledge? 14 MR. RAVEN: Objection to form. 15 A. Certainly they could have, yes. 16 Q. And wouldn't it be fair to say that a 17 prudent company would then notify employees who were 18 exposed to benzene or potentially exposed to benzene 19 that a consequence to that exposure might be leukemia? 20 MR. RAVEN: Objection to form. 21 A. It depends on the exposure values, no. I 95 1 certainly -- simply because someone may be exposed to 2 some level, and the 1948 document refers to a limit of 3 50 parts per million or less as being strongly 4 recommended, the standard at the time was a hundred 5 parts per million. 6 So if somebody is being exposed at levels 7 exceeding those limits, then perhaps yes. I don't 8 know that was a standard practice historically, but I 9 certainly see nothing wrong with that practice. But 10 it's got to be based on some set of criteria, some 11 threshold levels, not -- we're all exposed to benzene. 12 MR. BLACK: Objection. Nonresponsive. 13 Q. Well, in 2004, are workers notified that 14 exposure to benzene can cause cancer or leukemia? 15 MR. RAVEN: Objection to form. 16 A. Under the Hazard Communication Standard, if 17 they work with benzene or benzene-containing products 18 of greater than one-tenth of one percent, then yes, 19 that is true. 20 If they work around benzene or 21 benzene-containing product and they are exposed on an 96 1 eight-hour time-weighted average of 30 days or more 2 per year at 0.5 parts per million, then yes, they 3 are. Otherwise, no. 4 Q. So, it's your testimony that workers aren't 5 notified unless their exposure levels are -- meet some 6 threshold; is that -7 A. Sure. In other words, you'd have to notify 8 the Boy Scouts every time they're out sitting around 9 the campfire. There's a benzene exposure as a result 10 of that. So, there has to be some basis for that 11 notification. You don't just -- if you over warn, you 12 take away the value of a warning. You have to -- the 13 warning has to have some significance behind it. 14 MR. BLACK: Objection. Nonresponsive. 15 Q. Are there not signs currently at chemical 16 plants placed on benzene units or units containing 17 benzene as a feed stock? 18 A. Sure. There are different reasons for 19 identifying benzene. The labeling process line is 20 part of process safety management. There may be other 21 labeling requirements again where the levels of 97 1 exposure are such that it initiates an area to be 2 posted with signs as a regulated area under 1910.1038. 3 Q. Is it your opinion that The Dow Chemical 4 Company and others in the industry cannot be put on 5 notice that benzene can cause leukemia until NIOSH 6 said so in 1976? 7 MR. RAVEN: Objection to form. 8 A. I think various organizations including Dow 9 look to agencies such as NIOSH to determine when a 10 material is going to cause some adverse health effect 11 and what measures may need to be taken or changed to 12 control those exposures. That's the purpose of 13 NIOSH. It's part of the Public Health Service. 14 Q. What year was the Occupational Safety and 15 Health Act passed? Do you know? 16 A. 1970, '71, in that timeframe. 17 Q. And it didn't become effective until '72; is 18 that correct? 19 A. Well, yeah. I think it was effective prior 20 to '72. I think it was '71. 21 Q. And what is NIOSH? 98 1 A. The National Institute for Occupational 2 Safety and Health. 3 Q. And how are they related to OSHA? 4 A. They were set up as NIOSH at the same time 5 OSHA was established as a research organization in 6 occupational health-related issues, health and safety. 7 Q. Back to the 1948 American Petroleum 8 Institute benzene review, did you notice in there that 9 it said that there was no safe level of benzene 10 exposure? 11 A. Yes, I did. 12 Q. Do you have an opinion about that? 13 A. Do I have an opinion? 14 Q. Do you think that's still true today? 15 A. There's no safe level? Are you talking 16 about a mathematical risk or an actual risk? 17 Q. What does that mean to you as an industrial 18 hygienist? 19 A. What it means to me is that they had a limit 20 of 50 parts per million, and that's what they 21 established as a safe level. They recommended as -- 99 1 it's just a general practice to keep exposures as low 2 as possible. 3 1948, 50 parts per million for all intents 4 and purposes was zero. It was very difficult to 5 measure down to that level given the analytical 6 techniques that were available at that time. 7 MR. BLACK: Objection. Nonresponsive. 8 Q. But isn't it fair to say that Doctor 9 Drinker, the author of this article, understood that 10 permissible exposure levels or thresholds were 11 inaccurate based on that statement -12 MR. RAVEN: Objection to form. 13 Q. -- and not protective of all exposed 14 persons? 15 MR. RAVEN: Objection to form. 16 A. I can't -- no, I don't believe so. In fact, 17 the occupational health standards of today are based 18 on eight-hour time-weighted average exposures. It's 19 based on dose. It's not based on some single exposure 20 as being causative of disease. 21 So, I can't presume to know what he was 100 1 thinking if he in fact is the one that made that 2 statement. They had a limit of 50 parts per million 3 in 1948. When they did the document again in 1961, 4 they didn't have that language in there about no 5 exposure. They had a threshold limit value published 6 just like they did in 1948. 7 Q. Why do you think they took out the language 8 about no safe level of benzene exposure? 9 MR. RAVEN: Objection to form. 10 A. I don't know specifically. I can only 11 presume because they didn't have any data to back that 12 up. Just like there's no data today to back that up. 13 Q. Well, isn't it fair to say that someone 14 could get cancer from smoking one cigarette? 15 MR. RAVEN: Objection to form. 16 A. Oh, god. Mathematically, sure, you can 17 compute that. In reality, if that's the case, 18 everyone in the -- probably 99.9 percent of the 19 population dies from cigarette smoke. 20 MR. BLACK: Objection. Nonresponsive. 21 Q. With respect to other state of the art 101 1 issues, the state of the knowledge at relevant points 2 in time concerning benzene, you spoke of the NIOSH 3 listing of leukemia as a consequence of benzene 4 exposure. I believe you said 1976, is that when that 5 was finally determined? 6 A. Yes. 7 Q. By NIOSH? 8 A. Yes. 9 Q. Do you have any other opinions in terms of 10 times about the knowledge of the hazards of benzene? 11 A. Other than to say, generally benzene was 12 recognized as a poison for -- from the 1930s. It was 13 clear that in high doses -- excuse me, high doses that 14 benzene was capable of causing blood changes. It was 15 considered poison. It was labeled as a poison. 16 Q. Have you seen testimony in this case or 17 documents concerning toxic grams -18 A. Yes. 19 Q. -- from Exxon or Esso? 20 A. Yes. 21 Q. Did you see on there where they reference no 102 1 safe level of benzene exposure? 2 MR. RAVEN: Excuse me. Do you have a 3 document where you can show him? 4 MR. BLACK: I don't have it with me. Do you 5 have it over here? 6 MR. RAVEN: Yes. 7 A. Yes. I believe it's in there. 8 Q. Could you find it for us? 9 A. Let's see if we can find it. 10 Q. Were those attached as exhibits to -11 A. No, do you know where they are? 12 Q. -- Rose's depo? 13 A. No. To Parker. I think you all submitted 14 them in the testimony of Frank Parker -15 Q. I think so too. 16 A. -- that you did the other day. 17 MR. RAVEN: Do you have that? 18 A. That may have been where I saw it. It may 19 not be in my documents here. I'm sorry. I just saw 20 them as result of Parker's testimony. 21 (Discussion off the record.) 103 1 Q. But you do remember seeing that in 2 testimony? 3 A. I remember seeing something with Esso on it, 4 yes, on something. 5 Q. Do you have an opinion about those 6 documents? 7 A. No. I mean, nothing in particular as 8 related to this case, no. 9 Q. You don't -- you don't have any reason to 10 discount that Dow received those from Esso? 11 MR. RAVEN: Objection to form. 12 A. I have no idea what Dow received. I don't 13 know whether they were internal documents or -14 Q. So, you have no opinion one way or the 15 other? 16 A. Correct. 17 Q. Have we talked about all of your opinions 18 with regard to state of the art just to -- do you 19 agree with Doctor Rose's deposition? Do you have any 20 criticisms of his testimony with respect to state of 21 the art and the knowledge of benzene hazards? 104 1 MR. RAVEN: Objection to form. 2 A. I need to go back and look at it from that 3 standpoint. I was really looking at his testimony 4 more from the exposure standpoint which he said 5 nothing. 6 What did he say about state of the art? I 7 mean, he talks about cytogenic studies that are tools 8 used by -9 MR. RAVEN: What's the question? 10 MR. BLACK: If he had any criticisms of 11 Mr. Rose's -- or Doctor Rose's testimony 12 specifically. 13 MR. RAVEN: Well, ask him a specific 14 question about the testimony. 15 Q. Is there anything you disagree with regards 16 to the -17 MR. RAVEN: No, no. 18 Q. -- the timing of the knowledge -- of the 19 hazards of benzene? 20 MR. RAVEN: No. I mean, if you got a 21 specific question about Vernon Rose's deposition, 105 1 that's fine. But the witness isn't going to testify 2 about what -- about -- I mean, you're asking him to 3 give you a specific response to a question that I'm 4 not sure that is a question. I mean, do you have a 5 specific area you want him to focus on? 6 MR. BLACK: Yes. 7 MR. RAVEN: Ask him a specific question -8 Q. State of the art. 9 MR. RAVEN: -- about the opinions, Vernon 10 Rose's specific opinion on state of the art. 11 Q. Vernon Rose says in his deposition that he 12 believes Dow Chemical and a company like Dow Chemical 13 should have known of the hazards of benzene well 14 before NIOSH came out with their leukemia reference in 15 1976. Do you disagree with that? 16 MR. RAVEN: Objection to form. 17 A. I agree to the extent that certainly Dow 18 should have known, would have known of the known 19 hazards associated with benzene. I think in -20 generally in his deposition, he doesn't know much of 21 anything about what Dow did or did not know. So, 106 1 there's really -- I don't know. There's not much 2 there to agree or disagree with. He didn't really 3 know anything as it relates to Dow. 4 MR. BLACK: Objection. Nonresponsive. 5 Q. So as we sit here today, you have no 6 specific criticism of Doctor Rose's testimony? 7 MR. RAVEN: Objection. Mischaracterization 8 of his testimony. Form. 9 A. My specific testimony would be that in 10 reviewing the testimony of Vernon Rose, he has no 11 specific knowledge of what Dow did and what their 12 knowledge was. A lot of "should have"s and "could 13 have,"s but nothing definitive as to what Dow did 14 know. He doesn't know that. 15 MR. BLACK: Objection. Nonresponsive. All 16 right. Moving on. 17 Q. Have you read Doctor Levy's deposition? 18 A. Yes. I did go through that, but it's not 19 something I focused on. 20 Q. That's what I was going to ask you. I mean, 21 this is moving into the medical aspect of it. You've 107 1 not been asked nor will you provide an opinion as to 2 causation in this case; is that correct? 3 A. Correct. 4 Q. So, you read Doctor Levy's deposition just 5 to be more familiar with the facts of the case; is 6 that an accurate statement? 7 A. Yes. And to understand what he was relying 8 on in terms of forming his opinion. 9 Q. Okay. But at trial, you will not take the 10 position that you'll call into question any opinion 11 that Doctor Levy has with respect to causation? 12 MR. RAVEN: Objection to form. 13 Mischaracterization of his testimony. 14 A. From a medical causation standpoint, I would 15 agree. 16 Q. Okay. And I take it your opinions 17 concerning training and warnings provided by Dow and 18 the safety procedures of Dow, at trial your testimony 19 is going to be centered around things such as Dow did 20 this to protect their workers, here's safety manuals 21 that were in effect, that kind of information? 108 1 A. Yes. And the testimony again of Dow 2 employees that speak to the process that they had 3 instituted there to protect workers and to protect the 4 process. 5 Q. So, it's your opinion that, generally 6 speaking, Dow Freeport was a safe place to work? 7 A. From -- sure. From my review of these 8 materials and looking at the testimony and my 9 experience with many other facilities, I think this 10 was a good facility to work at. 11 MR. BLACK: Objection. Nonresponsive. 12 Q. So at trial, that's the position you're 13 going to take is Dow is a safe place to work, there's 14 no way this could have happened to a worker on -- out 15 at Dow? 16 A. No. I would not say there's no way -- you 17 mean by this, someone developing AML? 18 Q. Correct. 19 A. No, I can't say that. I reviewed 20 Mr. Boren's case, and I reviewed the details behind 21 his exposure, and I would say for that Mr. Boren. I 109 1 can't say with absolute certainly it's going to happen 2 and that's true for everybody that's ever worked at 3 that facility. 4 Q. Okay. Are you familiar with how many units 5 at Dow Freeport from '69 to '93 contained benzene in 6 measurable quantities? 7 MR. RAVEN: Objection to form. 8 A. I do not have a specific number of units, 9 no. I know Plant A was the focal area and the units 10 within there for benzene. 11 Q. After you review all of the industrial 12 hygiene documents, will you have a -- would it be fair 13 to say you'd have a better understanding of how many 14 units out there had benzene in measurable quantities? 15 MR. RAVEN: Objection to form. 16 A. Yes, but I'd have a better understanding. 17 I'm not sure that the data that's been provided me may 18 be limited to those areas where Mr. Boren was 19 allegedly working. I haven't done that assessment 20 yet. 21 Q. Do you plan on doing that assessment? 110 1 A. Sure. That would be part of it in trying to 2 understand what the data is and where it was located, 3 sure. 4 Q. With respect to safety equipment, what is 5 your opinion in that regard? 6 A. I guess I need -7 MR. RAVEN: Objection to form. 8 A. I need a point of reference there. I'm not 9 sure what you're asking me. 10 Q. Well, is it your opinion that Dow at all 11 times followed the safety procedures that were in 12 effect for the time period? Is that essentially what 13 you're going to say at trial? 14 MR. RAVEN: Objection to form. 15 A. My understanding of Dow's safety and health 16 practices and procedures is that they're -- and this 17 is based on testimony from Roger Daniels and 18 perhaps -- and others, of Dow employees that they were 19 certainly following standard industry practice and in 20 many cases were in advance of those practices and 21 procedures to protect workers. 111 1 MR. BLACK: Objection. Nonresponsive. 2 Q. So, it's your opinion that they were a 3 leader in the industry in terms of worker safety? 4 MR. RAVEN: Objection to form. 5 A. Yes. I would -- certainly as an industrial 6 hygienist that's done thousands of assessments at 7 hundreds of plants around the country, I would say 8 that they -- I would qualify them as a company I would 9 refer to in looking at good health and safety 10 programs. 11 Q. Do you know what year video cassette 12 recorders became readily available? 13 A. Let's see. I had my first Beta unit in -14 Q. About 1976; wasn't it? 15 A. No. Well, I don't know. I couldn't afford 16 it until about 1980 or so. 17 Q. Right. 18 A. I don't know. 19 Q. They were really expensive. 20 A. Yeah. They were really big guys prior to 21 that. 112 1 Q. Would it make sense that there was -- Dow 2 had training videos in 1970? 3 MR. RAVEN: Objection to form. 4 A. Boy. 5 Q. Did you see Roger Daniels' testimony about 6 that? 7 A. I don't recall the videotape discussion, no. 8 Q. Generally speaking from an industrial 9 hygiene standpoint, would training videos be an 10 adequate means of communicating safety information? 11 MR. RAVEN: Objection to form. 12 A. I mean, it depends on the video and what 13 is -- what else is presented in tandem with that 14 video. It's a common technique used today for 15 training workers. 16 Q. Do companies generally require workers to 17 sign some sort of acknowledgment that they've 18 undergone training, safety training? 19 A. Some companies do. All of them don't, you 20 know, don't keep a record of that. It varies 21 depending on the organization and the time. 113 1 Q. If you were asked to be a consultant for a 2 petrochemical company and they would ask you to help 3 design a safety protocol for their employees and their 4 contract employees, would you recommend that all 5 safety training be acknowledged in writing by the 6 employee? 7 MR. RAVEN: Objection to from. 8 A. Quite possibly, yes. 9 Q. Why would you do that? Why would that be 10 something that would be important to you? 11 A. I hate to say, in large part it's just for 12 litigation purposes to cross your Ts and dot your Is. 13 Does it have an effect on being a better safety health 14 program? No, I don't believe so. It just speaks to 15 the liability issue. 16 Q. So, the only reason you'd want to do that 17 would be to -- for possible litigation down the road? 18 A. That -- liability reasons would be a big 19 reason. If someone wants to lie to me and says that 20 they've done their work and they understand this 21 verbally versus signing their name, I don't see a big 114 1 difference in that. 2 Q. So, your experience with workers in the 3 field has been that workers irrespective of whether 4 they have to acknowledge something in writing or 5 verbally, they don't take it more seriously either 6 way? 7 MR. RAVEN: Objection to form. 8 A. Oh, correct. Putting it in writing doesn't 9 have any impact. I have been down that road a number 10 of times and have my own experiences with that, yes. 11 Q. Could you give us an example of one of those 12 experiences? 13 A. Sure. I spent an entire week training 14 asbestos abatement workers how to safely handle and 15 remove friable insulating materials. Training after 16 training after training, signing after signing after 17 signing. And they still would remove respirators 18 inside of containment areas that were full of 19 asbestos. And smoke cigarettes and drink coffee. You 20 know, the hazard and all the training wasn't important 21 to them. 115 1 Now, that's for certain groups of workers. 2 I certainly don't believe that's the case in the 3 majority of workers. But I have seen that and that's 4 why I'm saying from my own experience, signing a piece 5 of paper has little value. I think it's good from a 6 liability standpoint, for a recordkeeping standpoint. 7 Q. In those instances, were workers told that 8 they could actually get lung cancer from asbestos? 9 A. Absolutely. Lung cancer, mesothelioma. 10 That this could kill them. That they could die from 11 this exposure. Especially since they were all smokers 12 and then tandem to smoking, their risk was 13 exponentially increased. 14 Q. And they just didn't care? 15 A. It's unbelievable. And I have pictures. 16 Q. Is it your opinion that Mr. Boren didn't 17 care? 18 A. No. 19 Q. Have you seen any evidence that Dow required 20 workers around benzene at Dow Freeport to wear 21 respiratory equipment? 116 1 A. Not for Mr. Boren. For other Dow workers? 2 For any Dow workers? 3 Q. Well, for workers like Mr. Boren, contract 4 workers. 5 A. No. I've not seen any information that 6 would indicate that they wore respirators and they 7 were required to wear respirators based on exposure 8 levels. 9 Q. So, it's your opinion that respirators are 10 not required unless there's measurable exposures or 11 you -- benzene reaches a certain threshold. Is that 12 your opinion? 13 A. That's absolutely correct. I believe they 14 were provided respirators, but those were for other -15 those were emergency escape respirators they clip on 16 their belt. Those were for other purposes. But yes, 17 I agree with what you just said. 18 Q. As an industrial hygienist, if you were 19 providing data to an epidemiologist and he asked you 20 for air monitoring data or industrial hygiene data 21 from workers exposed at a particular plant, and you 117 1 gave that information to him, and he said, well, thank 2 you for the information from -- let's just call it 3 Plant A, not in any reference to Plant A in Freeport. 4 Thank you for the information from Plant A. 5 I would like you also to give me industrial hygiene 6 monitoring data from Plant B, workers that are exposed 7 in the same way that they're exposed at Plant A. 8 From an industrial hygiene perspective, is 9 it acceptable to equate the exposures from Plant A and 10 B together and essentially not look at industrial 11 hygiene data from Plant B and deem the exposures from 12 Plant A so similar that you don't need to look at 13 Plant B -14 MR. RAVEN: Objection to form. 15 Q. -- or would you want to look at Plant B? 16 MR. RAVEN: Objection to form. 17 A. Well, you can use data from other operations 18 if you can demonstrate that the task, the activity, 19 the products, the conditions were all similar such 20 that they fall into a similar exposure group. So, 21 yes, you can do that. 118 1 Q. Would it be -2 A. But I think you need more information than 3 what you just described to me. 4 Q. Well, let's take, for instance, something 5 that really happened. Let's say Dow does a study of 6 workers exposed to benzene at their Midland, Michigan 7 facility. And confronted with the option of doing a 8 separate study on benzene workers at Freeport, they 9 decide not to do the Freeport study because they 10 believe the exposures are sufficiently similar to the 11 Midland exposures. 12 Does that sound like an acceptable practice 13 in the field of industrial hygiene? 14 MR. RAVEN: Objection. Form. And if you're 15 going to talk about a Dow study that Dow did, why 16 don't you show it to him and let him look at it so -17 I mean, it's fair to the witness that he look at the 18 study before he answers the question. 19 MR. BLACK: It's a 1985 study by Ott, I 20 believe. 21 Q. Have you seen that study? 119 1 A. I'm sorry, say the last name again. 2 Q. Ott, O-T-T. 3 A. Yes. 4 Q. A study of workers exposed to benzene at Dow 5 Midland. I'm not sure about the year, but I know it 6 was -- are you familiar with these studies? Here they 7 are. 8 A. You mean everything in here or the ones 9 you -10 Q. Well, they're after, I believe, some of the 11 other toxs? 12 MR. RAVEN: Was that the Ott study that you 13 asked him a question about? 14 MR. BLACK: Yes. Is that not the Midland, 15 Michigan? 16 MR. RAVEN: Oh, no. I mean, you showed him 17 some papers. I just want -- I want you to make sure 18 that he's got the one in front of him that you asked 19 him the question about. 20 MR. BLACK: I think there are multiple 21 copies of it. 120 1 A. Well, this is Ott. I mean, this is -2 Q. And I'm not asking any specifics about the 3 study. I'm just asking, generally speaking as an 4 industrial hygienist, is it an acceptable practice to 5 not -- strike that. 6 Let me ask it this way. If studies -- if 7 exposure data is deemed similar enough based on some 8 criteria that we know nothing about, is it acceptable 9 to disregard that industrial hygiene data in making an 10 evaluation of workers exposed to benzene? 11 MR. RAVEN: Objection to form. 12 A. I don't think I'm following you. To 13 disregard -- I'm not following you. 14 Q. I'm having a hard time understanding why -15 if Dow wants to know, okay, what's the effect of 16 benzene on our workers, why wouldn't they study all 17 their workers exposed to benzene? 18 MR. RAVEN: Objection to form. 19 A. Well, you don't have to study every worker 20 that works with benzene to understand the effects of 21 benzene. What you're looking for is a -- if it's an 121 1 epidemiological study you're talking about, you look 2 for a substantial population such that you have 3 statistical validity to your findings. 4 Q. Wouldn't you want the most in order to get 5 statistical validity? 6 MR. RAVEN: Objection to form. 7 A. You want to draw -- you have to draw some 8 line. I'm being reasonable here. I mean, you 9 can't -- it's not necessary, no. And it just -- it 10 doesn't -- you're just not required -- it doesn't -11 it's not a scientific necessity to look at every 12 single individual that may be exposed. 13 Again, you want a population sufficient that 14 your outcome has some statistical validity. That's 15 what you're looking for. 16 Q. Based on your experience as an industrial 17 hygienist, would you say the laws in Michigan are 18 stricter than the laws in Texas with regard to 19 chemical plants? 20 MR. RAVEN: Objection to form. 21 A. Texas had a -- no, I can't say that there's 122 1 any -- I can't say that there's any difference. You 2 have one -- I haven't looked at that to tell you the 3 truth. I know Michigan had a state program and so did 4 Texas. 5 But I -- my view is -- looking at plants 6 around the country both as a consultant and working 7 for the Federal government is, it's not so much the 8 state you're in, it's the organization that you work 9 for as to the overall performance of a program. 10 Q. Don't some states have better records of 11 environmental enforcement? 12 MR. RAVEN: Objection to form. 13 A. Again, I haven't done that analysis. I 14 don't want to accuse any state of having poor 15 environmental records. But because a state perhaps 16 has more infractions than another state doesn't mean 17 that a particular organization within that state has 18 more infractions than that same organization in 19 another state. 20 Q. Well, you realize the Dow Freeport facility 21 is Dow's largest in the world? 123 1 MR. RAVEN: Objection to form. 2 A. I think that was my understanding, yes. 3 Q. It's the mother -- it's the flagship. I 4 mean, it may not be the headquarters, but it's the 5 flagship. 6 MR. RAVEN: Objection to form. 7 Q. Why -- if you really wanted to know what 8 your workers -- what was going on with your workers, 9 why wouldn't you study the flagship plant? 10 MR. RAVEN: Objection to form. 11 A. I do not know the specific answer. One 12 thing that comes to mind, you may want to study in 13 Michigan over Texas and particularly in South Texas 14 because of the weather. You may have more indoor 15 operations, thus a more worst case scenario to study 16 in Michigan than you would in Texas. I don't know. 17 I'd have to -- you know, that would require 18 me to do more research. But that's one thing that 19 comes immediately to mind. 20 Q. So, the units wouldn't be open air units, 21 particularly in Michigan; is that -- 124 1 A. Certainly it's my experience there's more 2 parts of the processes that are more protected from 3 the weather and are enclosed in the northern states 4 than they are in a place like South Texas. 5 Q. Couldn't a reason for that be lax air 6 standards? 7 MR. RAVEN: Objection form. 8 A. No, no. Enclosing it in a building 9 doesn't -- it's not doing anything to preclude 10 emissions from the process lines. 11 Q. It still escapes? 12 A. It's just containing whatever is being 13 released temporarily. 14 Q. Okay. I was just checking to see if you had 15 any opinions about that. 16 A. I have not looked at that. 17 Q. Okay. Do you have any opinions concerning 18 the causes of acute myelogenous leukemia? You stated 19 earlier you are not going to give any opinion about 20 causation, but do you recognize the fact generally as 21 an industrial hygienist that benzene can cause -- 125 1 MR. RAVEN: Objection to form. 2 Q. -- lung cancers? 3 MR. RAVEN: Objection to form. 4 A. I understand that for some forms of AML for 5 that to be a potential cause as are certain 6 medications and perhaps radiation. 7 Q. Do you have any opinion with respect to 8 latency of benzene-induced blood disorders? 9 A. That's going more into -- I recognize there 10 is a latency associated, but that's more of a medical 11 issue. 12 Q. So, you're not going to offer an opinion on 13 the latency period of acute myelogenous leukemia? 14 A. Correct. 15 Q. Are you going to offer an opinion with 16 respect to certain exposure levels for benzene-induced 17 acute myelogenous leukemia? 18 A. Yes. I mean, I -- as an industrial 19 hygienist, I rely upon the occupational health 20 standards as being set at a level that is protective 21 of human health. So from that standpoint, I would 126 1 certainly provide an opinion in that regard. 2 Q. And what is your opinion with respect to the 3 exposure levels sufficient to induce benzene-induced 4 AML? 5 A. Well, it's more of a dose dependent 6 function. If you look at the OSHA permissible 7 exposure limit, one PPM eight-hour time-weighted 8 average, that is equivalent to a 45 PPM year dose. 9 So, below that level, as an industrial hygienist, I 10 wouldn't expect to see disease. 11 Q. And what do you base that opinion on? 12 A. The occupational health standards. 13 Q. Published by the U.S. Government? 14 A. By the U.S. Government and other 15 researchers. 16 Q. Did you bring any of those with you? 17 A. I have the permissible exposure -- the 18 standard, 1910.1028. 19 Q. You brought that with you? 20 A. Yes. 21 Q. Can we go ahead and mark that as an 127 1 exhibit? And these are the current standards? 2 A. Yes. 3 Q. What is the current standard for benzene? 4 A. Well, it's one part per million, eight-hour 5 time-weighted average, five parts per million for 6 short-term exposure limit. And then for certain 7 operations, it is ten parts per million as an 8 eight-hour time-weighted average. 9 Q. And when did these standards become 10 effective? 11 A. This came into effect in 1987, I believe. 12 I'm sorry, you wanted to mark this. 13 Q. Yes. 14 (Whereupon Spencer Deposition Exhibit No. 8 15 was marked.) 16 (Discussion off the record.) 17 Q. Okay. Were these -- are these levels the 18 levels that were proposed in 1977? 19 MR. RAVEN: Objection to form. 20 A. You know, I need to go back and look at the 21 '77 documents. I'm not sure that they fell out 128 1 exactly the same way as they are today. 2 Q. But the big one, the one part per million 3 was the 1977 proposed emergency standard, is that your 4 recollection? Or do you know? 5 A. I'm not absolutely certain. I need to go 6 back and look. 7 Q. You weren't a practicing industrial 8 hygienist then; were you? 9 A. I was. 10 Q. Oh, were you? 11 A. Yes, believe it or not. 12 Q. You must have been a 15-year old industrial 13 hygienist. 14 A. No. Unfortunately I was not. 15 Q. Yes, you were actually. You received your 16 BS in '76; is that correct? 17 A. Yes. 18 Q. Do you have an opinion concerning 19 cytogenetic testing as an industrial hygiene tool? 20 A. Yes. 21 Q. What is that opinion? 129 1 A. Never heard of an indusrial hygienist using 2 that as a way to evaluate exposure. No, it's not 3 done. 4 Q. Just not information you'd want to know? 5 A. I wouldn't say that. I want to know a lot 6 of things. But as it relates to an industrial hygiene 7 evaluation of an individual's exposure, it's not -8 certainly not critical to me. It may be incorporated 9 into the basis of an occupational health standard, but 10 that's a little different. 11 Q. So, it's not something you'd recommend that 12 companies do today? 13 A. No. 14 MR. RAVEN: Objection. 15 Q. Is that your opinion? 16 A. No. That's not what I'm saying. 17 Q. What are you saying? 18 A. I'm saying -- you asked me as an industrial 19 hygienist, do I use it as a tool. And my answer is 20 no, as an industrial hygienist, I do not. Certainly 21 any -- you know, doing cellular in vitro or in vivo 130 1 studies is generally a good thing for well done 2 studies. 3 Q. Did you see Doctor Snodgrass' testimony that 4 he felt in the hands of an industrial hygienist with a 5 Ph.D. that that would -- that it may be something that 6 an industrial hygienist would want to look at? 7 MR. RAVEN: Objection to form. 8 A. What is that industrial hygienist's Ph.D 9 in? 10 Q. That was my question. I have a lot more 11 faith in you guys than Doctor Snodgrass does, I 12 think. But I just found that kind of interesting that 13 he would say that. 14 MR. RAVEN: Objection to form. 15 A. As an industrial hygienist, none of the -16 when I'm evaluating exposure, that does not come into 17 direct play. The health standards are what I use as 18 my guidelines. 19 Q. So at trial, you're going to take the 20 opinion that it's irrelevant? I mean, certainly if 21 the data exists, you'd like to look at it as an 131 1 industrial hygienist, but it's not something you'd go 2 out and demand that you have to have? 3 MR. RAVEN: Objection to form. A 4 mischaracterization of testimony. 5 A. It's not something that I would require to 6 do my assessment, that's correct. 7 Q. But if the data existed, you'd like to see 8 it? 9 MR. RAVEN: Objection to form. 10 A. Again, it's not really necessary for me to 11 see that in terms of doing an occupational health 12 hazard assessment. 13 Q. Have you seen the cytogenetic testing that 14 was done in the seventies at Dow? 15 MR. RAVEN: Objection to form. 16 A. I probably have at one time or another. I 17 really did not evaluate it for this case. 18 Q. You've not looked at that for this case and 19 you're not using that as a basis for any of your 20 opinions in this case other than what we've just 21 talked about? 132 1 MR. RAVEN: Objection to form. 2 A. Correct. 3 Q. Do you recall what those studies found 4 amongst benzene-exposed workers at Dow Freeport? 5 MR. RAVEN: Objection to form. 6 A. No, I do not. 7 Q. Would it surprise you that the conclusions 8 that they reached showed chromosomal aberrations in 9 workers exposed to less than 10 parts per million of 10 benzene? 11 MR. RAVEN: Objection. Do you have a copy 12 of the study, Robert, you can show him? I mean, I 13 just think it's unfair to ask him -14 MR. BLACK: I think it's weird you all 15 didn't give him one. 16 MR. RAVEN: Well, no, you're here; you noted 17 the deposition. I just think it's unfair to question 18 a witness about a report and you don't let him look at 19 it before you ask him a question. That's all I'm 20 saying. 21 MR. BLACK: Generally speaking. That was a 133 1 general question. 2 MR. RAVEN: Well, no, it's not generally 3 speaking because he's here as an expert. Every word 4 he says, you're going to use against him. And my 5 position is that if you want the witness to elicit 6 some opinions, give him the record that you -- the 7 report that you want him to talk about, but don't -8 MR. BLACK: I agree. My question is: Why 9 didn't you give it to him? Doctor Snodgrass had seen 10 it. 11 MR. RAVEN: That's -- what I do with him is 12 my business. You're here asking him questions. So if 13 you want to ask him a question about a report, let him 14 look at it. 15 MR. BLACK: All right. 16 Q. You haven't seen it? 17 A. Like I said, I have looked at it at one 18 time. I did not study it for this deposition because 19 I -- it just wasn't relevant in forming my opinions in 20 this case. 21 Q. Okay. You've -- you looked at it in this 134 1 case, or was it for another case? 2 A. You know, I am not -- I just don't know. I 3 know I looked at the studies done, and I think it was 4 Peachione or -5 Q. Correct. 6 A. I don't -- so, yes, I am aware of that, but 7 I did not look at it specifically for this case. 8 Q. I was just exploring to see if you have an 9 opinion on that. 10 A. I understand. That's your job. 11 Q. And we talked about your criticisms of Frank 12 Parker's work and your assessment of Mr. Boren's 13 exposures. Are you familiar with Doctor Irons? 14 A. Yes. 15 Q. Are you familiar with Doctor Rabe? 16 A. Yes. 17 Q. Have you worked with those guys before? 18 A. Yes. 19 Q. In chemical exposure cases? 20 A. Yes. 21 Q. Do you know what Doctor Irons is currently 135 1 doing other than serving as an expert in litigation? 2 MR. RAVEN: Objection to form. 3 Q. Do you know where he is physically? 4 A. Well, not today. I know -5 Q. In the past six months, do you know where 6 he's been? 7 A. It wasn't my turn to watch him today. I do 8 know he was involved in some fairly extensive studies 9 in China doing benzene-related, epidemiological 10 health-related studies. 11 Q. And what do you know about those studies 12 specifically, if anything? 13 A. I don't have a lot of detail. I just know 14 he was there. He and others were there following up 15 on, I think, previously conducted studies in China. 16 Q. Why the fascination with Chinese 17 epidemiological studies? 18 MR. RAVEN: Objection to form. 19 A. Wait. Fascination? I'm not sure that's a 20 good word. 21 Q. Why -- I'm sure you've seen testimony in, if 136 1 not this case, other cases where Doctor Rabe has 2 talked about traveling around the country to 3 petrochemical companies and oil companies and 4 soliciting funding for these new Chinese benzene 5 studies. And my question is to you as an industrial 6 hygienist is, why China? 7 MR. RAVEN: Objection to form. 8 A. I don't know the specific answer to that. 9 There were a series of studies that came out of China 10 related to industries using benzene products. They 11 may have processes that were still utilizing tasks 12 that produce higher levels exposure than we see today 13 in this country. I don't know. That's a better 14 question for Doctor Irons. 15 Q. So, you don't have an opinion one way or the 16 other regarding the Chinese benzene studies? 17 MR. RAVEN: Objection to form. 18 A. No. Interesting question, but I'm probably 19 not the right guy to ask it of. 20 MR. BLACK: Well, I think I'm just about 21 done. Can we take just a quick break? 137 1 (Whereupon a brief recess was taken, after 2 which the following was heard: 3 Q. We're back on the record after a quick break 4 so everybody could review their notes. Do you feel 5 that we have covered -- or do you believe we've 6 covered all your opinions in this case? 7 A. Yes. 8 Q. Are there any other opinions that we haven't 9 discussed? 10 A. In this case? 11 Q. In this case. 12 A. I think we've covered everything. 13 Q. Well, I sure do appreciate your time. It 14 was very nice to meet you. 15 A. Good to meet you. 16 Q. And I look forward to seeing you in the 17 future in different circumstances. 18 A. We'll play tennis. 19 Q. Absolutely. 20 (At 1:31 the deposition was concluded.) 21 138