Document q3B6oeq1OxJB7Kmxk5yKDJV9M

1 3132`f31 1 IN THE CIRCUIT COURT OF PIITNAM COUNTY, WEST VIRGINIA 2 FLOYD D . KING, WALLACE BENNETT, 3 ROBERT STALNAKER, 4 Plaintiffs, 5 VS . CIVIL ACTION NO . 98-C-70 CIVIL ACTION NO . 97-C-397 6 CIVIL ACTION N0 . 97-C-333 7 OWENS-ILLINOIS, et al ., 8 Defendants . 'V- 10 11 TELEPHONIC DEPOSITION OF : DR . RAYMOND HARBISON 12 BATE : February 8, 1999 13 TIME : 1 :04 p .m . 14 15 LOCATION : 16 17 18 TAKEN BY : Law Offices of Ness, Motley, Loadholt, Richardson & Poole 151 Meeting Street, Third Floor Charleston, SC Counsel for the Plaintiffs 19 REPORTED BY : LISA F . WALKABOUT Court Reporter 20 21 A . WILLIAM ROBERTS, JR ., & ASSOCIATES 22 23 Charleston, SC (843) 722-8414 24 Greenville, SC 25 (864) 234-7030 Columbia, SC (803) 731-5224 Charlotte, NC (704) 573-3919 A . WILLIAM ROBERTS, JR ., 6 ASSOCIATES 1 APPEARANCES OF COUNSEL : 2 ATTORNEYS FOR THE PLAINTIFFS FLOYD D . RING, WALLACE BENNETT, ROBERT STALNAKER : 4 NESS, MOTLEY, LOADHOLT, RICHARDSON & POOLE BY : JAMES H . RION, JR . 151 Meeting Street, Suite 315 Charleston, SC 29401 (843) 720-9132 7 ATTORNEYS FOR THE DEFENDANT OWENS-ILLINOIS : HENDRICRSON & LONG BY : DAVID IC . HENDRICRSON 10 (Via Telephone) 214 Capitol Street ii Charleston, WV 25339 (304) 346-5500 12 (INDEX AT REAR OF TRANSCRIPT) 13 14 15 16 17 18 19 20 21 22 23 24 25 A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR. RAYMOND HARBISON - EX . BY MR . RION 3 PROCEEDINGS 2 x * * x t* * * t r 3 MR . RION : Before we begin, just for the 4 record, I'm James Rion representing the Plaintiffs, 5 and the other lawyer ,s Dave Hendrickson representing 6 Owens-Illinois . And I suppose, with that, we could 7 just swear Dr . Harbiso n and begin ; is that all right, 8 Dave? MR . HENDRICKSON : That's fine, James . 10 RAYMOND BARBISON 11 being first duly sworn, testified as follows : 12 EXAMINATION 13 BY MR . RION : 14 Q . Dr . Harbison, where are you currently 15 employed? 16 A . At the University of South Florida . 17 Q . And what's your position there? is A . I am professor of environmental and _ 19 occupational health and professor of pharmacology and 20 therapeutics and pathology in the College of Public 21 Health and in the College of Medicine . 22 Q . And you are a medical doctor? 23 A . No, Sir, I am not . 24 Q . You don't have an MD degree, then? 25 A . I do not . A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARSISON - EX . BY MR. RION 4 1 Q . How much of your current income do you 2 derive from legal medical consulting work outside of 3 your academic practice? 4 A . I would estimate it's around 30 percent . 5 And that varies from year to year, but that's 6 probably a good estimate . 7 Q . How much of that is asbestos? 8 A . Oh, it would be a very small part . I 9 would say probably less than a couple percent . 10 Q . And what other type legal, medical 1l legal, consulting work do you do? 12 A . We have a clinic in which we see 13 patients, do independent medical exams . I do some 14 medical monitoring or surveillance for workers that 15 are on hazardous waste sites or respond to chemical 16 spills . I also review workmen's compensation claims 17 and also personal injury claims . 18 Q . All right, the medical monitoring work, 19 that's done by medical doctors who are part of the 20 same facility? 21 A . What -- what this would be is doing 22 pre-employment exams, for example, for people who 23 have to comply with OSHA regulations with regard to 24 wearing a respirator, looking at existing conditions 25 as to whether or not they can respond to field A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARSISON - EX . BY MR . RION activities, it would be those sorts of -- of 2 activities . 5 Q . And do you do that personally, or do 4 you-all have a medical doctor who does that? A . No, sir, I -- I am not a medical doctor, 6 we -- part of your clinic . Q . And is that done at the request of 8 employers? A . Yes, sir . 10 Q . And the workers' comp work that do you, 11 is that typically done at the request of employers or 12 workers or what? 13 A . It would be all ; it would be individuals, 14 it would be insurance companies, it would be 25 employers . It would be all of those . 16 Q . What percentage of the workers' comp work 17 would you e stimate is done either for insurance 18 companies o r employers? 19 A . Oh, I would estimate that it's more than 20 50 percent . I -- I couldn't give you an exact 21 number, but it's -- it's certainly more than half . 22 Q . And is all the asbestos work you do at 23 the request of Owens-Illinois, or is there other 24 asbestos-re lated consulting work? 25 A . There would be others as well . A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 6 1 Q . Could you describe that for me? 2 A . It would be a worker compensation claim, 3 it would be an evaluation of risk associated with 4 exposure to asbestos, for example, that might be 5 contained in a workplace or in the environment . 6 Those would be some of the other activities . 7 Q . Have you ever testified at a jury trial 8 in a matter involving asbestos? 9 A . Yes . 10 Q . How many times? 11 A . I would estimate it's probably been about 12 four . 13 Q . And who was that at the request of? 14 A . One would be for Hendrickson & Long, 15 another would have been the Baltimore cases, and I 16 believe there was one occasion in Louisville . 17 Q . Were all of those Owens-Illinois cases? 18 A . Yes, sir, I believe so . 19 Q . Doctor, you were not involved in the 20 Kaylo studies, were you? 21 MR . RION : R-A-Y-L-O . 22 THE COURT REPORTER : Thanks . 23 THE WITNESS : Kaylo studies where? 24 BY MR . RION : 25 Q . Anywhere . A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 1 A . No, sir . Q . My question was probably a bad question . 3 Just so the record's clear, when you said, no, sir, 4 you're agreeing that, no, sir, I was not involved ; is 5 that what you're saying? 6 A . No, I have not done any studies or been 7 involved with studies of Kaylo . 8 Q . Thank you . So your only involvement with 9 Owens-Ill inois or Kaylo has been for the purposes of 10 reviewing materials for possible expert witness work? 11 A . Oh, I -- I have reviewed the Cerenak Lake 12 documents for Owens-Illinois and that's all I've 13 done . 14 Q . And you did that for the purposes of 15 evaluating the materials for expert witness work? 16 A . Well, that's certainly not what I 17 initially did it for, but I have certainly testified 18 about it . 19 Q . Well, what did you initially do it for? 20 A . They asked me to look at those documents 21 and to advise them of what was done and my 22 perspecti ve of what was done . 23 Q . When was this? 24 A . Oh, that would have been probably about, 25 I'll say, 19 -- late nineteen-eighties . A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION Q . All right . So they didn't seek your 8 2 advice when Owens-Illinois was manufacturing Kaylo? 3 A . No, sir . 4 Q . It was after litigation about the Kaylo 5 product developed? 6 A . Yes, sir . 7 Q . And who was it who came to you to ask for 8 your opinion? 9 A . I believe that I was first contacted by a 10 fellow by the name of Gardner Duval . 11 Q . And what was his position? 12 A . He was, I believe an -- I'm sure he was 13 an attorney with some group, i believe in Baltimore . 14 Q . And what did he tell you? 15 A . He asked me to look at the Cerenak Lake 16 documents . 17 Q, Did he indicate that Owens-Illinois was 18 involved in litigation concerning the documents? 19 A . I'm sure he probably did . I -- I don't 20 actually recall . 21 Q . After you met with him, did you have any 22 other meetings with Owens-Illinois lawyers -- first 23 of all, who was at this first meeting? 24 A . Just Gardner Duval and myself . 25 Q . Did he come to see you? A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HgRHISON - EX . BY MR . RZON A . Yes, sir, he did . 9 2 Q . And how long did you spend with him? 3 A . I would estimate probably a day . 4 Q . And what did you do? 5 A . He described the Cerenak Lake documents, 6 gave them to me . We talked about the testing, and he 7 left behi nd the Cerenak Lake documents and the 8 depositio n, I believe, of Mr . Hazard . Q . Did he describe for you Owens-Illinois 10 strategy in defending the cases? 11 A . No, sir . 12 Q . Did you have any subsequent meetings with 13 Owens-Ill inois lawyers? 14 A . Yes . 15 Q . When was the nest meeting? 16 A . I -- I could not tell you that . I -- Z 17 met with lawyers before testifying in Baltimore, and 18 2 met with lawyers before testifying in Louisville . 19 Q . All right . Other than that, how many 20 other meetings have you had with Owens-Illinois 21 lawyers? 22 A . I -- I don't -- I don't recall others . 23 Q . Are those the only ones? 24 A . Well, those are the only ones I can 25 recall . t -- I don't -- I mean, that's about ten A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 1 years ago, so I -- I frankly don't remember . 10 2 Q . Yes, sir . And you've been furnished the 3 documents from Cerenak Laboratory concerning the 4 experiments Owens-Illinois had Cerenak run on Kaylo, 5 correct? 6 A . That is correct . 7 Q . And you've been furnished Mr . Hazard's e deposition? 9 A . That is correct . 10 Q . Any other materials Owens-Illinois has 11 furnished you? 12 A . No . 13 Q . Did any of the documents generated by the 14 Cerenak Laboratories state that Raylo was s hazardous 15 material? 16 A . I don't recall any documents that 17 specifically stated it was a hazardous material, I -- 18 I don't recall that . 19 Q . Do you recall any documents generated 20 from Cerenak Laboratories saying that precautions or 21 preventive measures need to be taken with the Kaylo 22 product? 23 A . I don't recall any precautions or 24 preventive measures other than adequate ventilation 25 and dust control, which was ongoing in -- in the A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBTSON - EX . BY MR . RION 11 1 facilities . I don't recall anything other than that . 2 Q . Do you recall, then, that Cerenak advised 3 that industrial hygiene dust control precautions 4 needed to be taken with the Kaylo product? 5 A . Not specifically with the Raylo product . 6 I believe that it was an advice to control dust as 7 they had been doing and that they should continue 8 doing that . 9 Q . But', as I understand what you're saying, 10 they were advised that dust generally needed to be 11 controlled, but there was nothing about Kaylo dust 12 specifically being needed to be controlled? 13 A . I don't recall any specific reference to 14 Kaylo, other than Kaylo, of course, there was a dust 15 produced ; and it advised about dust control, which 16 would have included Raylo . 17 Q . From looking at the Raylo box during the 18 time that Owens-Illinois manufactured the product, 19 would there have been any way of telling by looking 20 at the box or product that the product contained 21 asbestos? 22 MR . HENDRICKSON : I don't know if he's 23 ever seen a box . 24 THE WITNESS : Yeah, I -- I have never 25 seen a box . A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 1 BY MR . RION : 12 Q . All right . MR . HENDRICRSON : I think I ought to 4 object . I mean, maybe you should ask him if he's 5 ever seen one before . 6 BY MR . RION : 7 Q . Well, as far as you know, from any of the 8 materials that you reviewed, did you see any 9 indication that Owens-Illinois ever advised its 10 customers that the Kaylo product contained asbestos? 11 A . From the Cerenak Lake documents, the -- 12 there -- there -- I have seen nothing that would 13 indicate that, but I haven't seen any boxes or -- or 14 other descriptive materials . 15 Q . Did any of the documents you were 16 furnished from Cerenak Laboratories state that the 17 Kaylo product is toxic, in those words? 18 A . I don't recall that specific statement . 19 Q . Did any of the documents you were 20 furnished from Cerenak Laboratories state or address 21 whether asbestos is a carcinogen? 22 A . The only reference to cancer is in the 23 publication, the 1955 publication, which states that 24 there was no finding of neoplasia from the studies . 25 Other than that, I don't recall any statements . A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARHISON - EX . BY MR . RION 13 1 Q . So you don't recall anything from Cerenak 2 specifically stating whether asbestos is or was a 3 carcinogen? 4 A . Well, other than, in the findings, there 5 wasn't any finding of neoplasia . 6 Q . Right . 7 A . Other than that, I -- I don't recall any 8 statements . 9 Q . In your opinion, what was the purpose of 10 the Kaylo studies? 11 A . The purpose of the studies was to 12 determine that, at the highest achievable levels of 13 exposure, if there was any adverse effects that would 14 be seen in laboratory animals as a result of exposure 15 to the Kaylo dust . 16 MR . HENDRICKSON : James, can I clarify 17 one thing? 18 MR . RION : Yes, sir . 19 MR . HENDRICKSON : I don't mean to 20 interrupt you . The question, the one before the last 21 one, when you're talking about from Cerenak, are you 22 talking about just -- you're talking about the Kaylo 23 studies now, right, you " re not talking about any 24 other Cerenak studies? 25 MR . RION : I'm talking about anything A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - ER . BY MR . RION 1 Owens-Illinois gave him -Z MR . HENDRICKSON : Oh, okay . 14 MR . RION : -- that came from Cerenak -- 4 MR . HENDRICKSON : Okay . 5 MR . RION : -- so I think his answer 6 probably would be the same . MR . HENDRICKSON : Okay . 8 BY MR . RION : Q . Now, understanding that the immediate 10 purpose was to see what happened in animals, Doctor, 11 was there any larger objective concerning humans, or 12 was the purpose limited to simply wanting to know 13 whether animals could get asbestosis? 14 A . Well, the -- the purpose wasn't to see if 15 animals could get asbestosis, the purpose was to see 16 whether or not, if, at the maximum level of exposure 17 that was achievable, there would be any adverse 18 effects produced in the animals, knowing that there 19 was silica, asbestos both being in the product . 20 And the objective was to determine 21 whether or not, in this new condition -- that is, the 22 formula in which these materials were contained -23 whether they would still have their individual 24 properties of being able to produce pneumoconioses 25 and that was the purpose of the study . A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 15 1 Q . Do you believe that, although animals 2 were used, one of the purposes of the study was to 3 evaluate, help evaluate, the product's possible 4 effects on humans? 5 A . Sure . 6 Q . Do you believe that, given the state of 7 the art existing at the time, the Kaylo study was 8 reasonably designed? 9 A . Yes, sir . 10 Q . Do you have any specific criticisms of 11 the study based on the state of the art that was in 12 existence when the study was done? 13 A . I do not . 14 Q . My nest question, Doctor, is limited to, 15 remember, documents generated by Cerenak ; okay? 16 A . Yes, sir . 17 Q . Did you see any of the ma -- and let me 18 back up : Did you see, in any of the reports or 19 correspond ence from Cerenak after 1947, any 20 statements that the Kaylo product was not hazardous 21 to humans? 22 A . You mean that specific statement, not 23 interpreti ng -- 24 Q . Yes, sir . 25 A . -- the narrative, but that statement A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 1 specifically? 16 2 Q . Yes, sir . 3 A . I don't recall any statement that said 4 that it was not, and there was no statement that said 5 that it was . 6 Q . Now, in the initial study, the initial 7 results in 1947 showed no response, correct? 8 A . That is correct -- well, yes, that's 9 correct . 10 Q . No response to asbestos? And then, in 11 1948, the researchers found that all of the animals 12 exposed had developed fibrosis or asbestos-related 13 fibrosis, correct? 14 A . I -- I don't remember the total number, 15 but i think that's -- that's probably close . 16 Q . And Cerenak then wrote Owens-Illinois and 17 said the earlier findings from 1947 would have to be 18 reversed, correct? 19 A . That's correct . 20 Q . And do you agree that, as of 1948, the 21 documents and correspondence indicate that, insofar 22 as the experiments were studying the effects of 23 asbestos, the conclusions at that point were final 24 with regards to asbestos as of 1948, although further 25 work was to be done regarding tuberculosis and A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR. RAYMOND HARBISON - EX . BY MR . RION 1 diatomaceous earth? 17 2 And when I say final, I mean final with 3 regards to the disease asbestosis, although further 4 work was to be done regarding tuberculosis and 5 diatomaceous earth . 6 A . I -- I'm not sure I understand that . Do 7 you -- do you mean, was the conclusion in 1948 that e the product, under these conditions of exposure, 9 could -- could produce asbestosis? 10 Q . Was that conclusion, at that point, a 11 final conclusion with regard to that specific point, 12 yes, sir? 13 A . I -- I believe so . And -- and actually, 14 when you asked me the question earlier about the 1947 15 data, the 1948 data didn't reverse the 1947 16 conclusions . I mean, the data up to 1947 is valid . 17 Q . Right . 18 A . But what it did do is show that an 19 additional length of exposure could result in the 20 fibrosis and asbestosis . So it didn't reverse it, it 21 demonstrated that additional exposure in fact could 22 lead to that condition . 23 Q . And so you would, not use the word 24 reversed to describe the change from '48 to '47 -- or 25 '47 to '48? A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 18 1 A . Well, no . I mean, it didn't -- it didn't 2 change the '47 data, it -- it -- it simply added to 3 it, showing that a longer period of exposure could 4 result in effects . 5 Q . Do you recall if, anywhere in the Cerenak 6 documents, just sitting here, Doctor, whether Cerenak 7 ever used the term reversed to describe the 8 relationship between the '48 results and the 1947 9 results? 10 A . I -- I do not recall whether that term is 11 used or not . 12 Q . Now, I think you and I are on the same 13 wavelength here . Do you agree that, in 1948, Cerenak 14 had completed its evaluation of whether the Kaylo 15 product can cause asbestosis in the animals, and the 16 subsequent work from " 48 to 'S2 concerned other 17 issues? 18 A . I don't -- 19 Q . Or do you remember? 20 A . Yeah, I don't -- I don't recall the 21 asbestos exposure alone continuing beyond 1948 ; I 22 believe it was looking at the effect of asbestos on 23 tuberculosis . So, best I can recall, it was looking 24 at other issues . 25 Q . So best you can recall, my statement A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR. RION 1 sounds correct? 19 2 A . Yes, sir . 3 Q . All right . Based on what you know about 4 the state of the art existing in 1955, including but 5 not limited to the finished -- excuse me -- including 6 but not limited to the Raylo studies, do you believe 7 there was any reason to be concerned about the health 8 of a person who was working with the finished product 9 Raylo? 10 MR . HENDRICKSON : Let me just interpose 11 just, I guess, an objection . He's not being offered 12 as a state of the art witness in the pure sense that 13 I think you and I refer to it as, James . I mean, 14 I -- 15 MR . RION : Well, let me rephrase my 16 question, then . 17 MR . HENDRICRSON : Well, let me just 18 finish, and maybe you can, and I think we'll 19 understand where we re going . I think he can 20 comment -- certainly your question is a fair question 21 as far as state of the art of this type of testing 22 and that kind of stuff . 23 MR . RION : Right . 24 MR . HENDRICKSON : That's what he is being 25 offered about, but as far as coming in and testifying A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 20 1 about what the medical literature was back then, 2 that's not what he's being offered about . 3 BY MR . RION : 4 Q . Okay, I've got a simpler way of doing it . 5 Doctor, based on what you know and what you've seen, 6 would there have been any reason in 1955 to be 7 concerned about the health of a person who was 8 working with the finished product Raylo? 9 A . I don't know of any specific reason there 10 would have been for concern other than normal 11 industrial hygiene practices, work practices for dust 12 suppression and protection against dust . I don't 13 know of any other precautions that would have been 14 indicated based upon the information that was 15 available at that time . 16 Q . Doctor, based on what you've known and 17 seen, would you have recommended, based on 1955 state 18 of the art, for persons working with the finished 19 product Raylo, that they be x-rayed to see if they 20 developed any sign of disease? 21 A . No . 22 Q . Based on what you know about the Kaylo 23 product in 1955 and based on 1955 state of the art, 24 would you have recommended that persons involved in 25 removing the finished Kaylo product from the box as A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 21 1 part of their job, should those persons be x-rayed, 2 based on 1955 state o the art, to see if they 3 developed any disease? 4 A . I would not know of any reason to do 5 that . 6 Q . Doctor, I want to ask you if you agree or 7 if you know -- I'm going to ask you a question ; if 8 you simply don't know, just tell me you don't know . 9 Do you agree that, by 1955, it was established with 10 reasonable probability that persons who had the 1l disease asbestosis suffered an increased incidence of 12 lung cancer? 13 A . I -- I don't know the answer to that . 14 Q . So would it be fair to say you don't hold 15 an opinion about when the relationship between 16 asbestos and cancer was established with reasonable 17 probability? 18 A . I -- I haven't looked at that, and I 19 don't have an opinion about that . 20 Q . Do you expect to offer an opinion at 21 trial about when it was known that the disease 22 mesothelioma or any other pleural tumor was linked to 23 asbestos exposure? 24 A . I do not intend to offer such an opinion . 25 4 " Do you agree, Doctor, that asbestosis, A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 22 1 lung cancer and mesothelioma can all be fatal under 2 certain circumstances? 3 A . I suppose that's possible, yes . 4 Q . Do you also agree that, once a 5 manufacturer -- leaving aside what it takes to 6 provide notice to a manufacturer that his product 7 causes disease -- do you agree that, once a 8 manufacturer knows that his asbestos product causes 9 asbestosis, lung cancer or mesothelioma, any one of 10 those, that he should warn customers or users to take 11 precautions with the product? 12 A . I'm sorry . 13 Q . You want me to try that again? 14 A . Yes . I'm sorry, I can't remember it all, 15 it's too long . 16 Q . Would you agree that, once an asbestos 17 manufacturer knows that his product causes either 18 asbestosis, lung cancer or mesothelioma, any one of 19 those, that, at that point, that manufacturer should 20 begin advising users or consumers to take precautions 21 with the product? 22 MR . HENDRICRSON : Just note my objection 23 to the question ; go ahead . 24 THE WITNESS : I -- I wouldn't -- I 25 wouldn't necessarily agree with that . A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 1 BY MR . RION : 23 Q . Why not? 3 A . Well, because the use of the product may 4 not result in a risk of increasing any of those 5 conditions . 6 Q . All right, well, let me rephrase my 7 question ; I think I understand your answer . How 8 about once a manufacturer knows that his product 9 causes an increased risk to humans, in its ordinary 10 and intended use, of either asbestosis, lung cancer 11 or mesothelioma, that he should, at that point, begin 12 advising customers to take precautions? 13 MR . HENDRICKSON : Same objection . 14 THE WITNESS : Well, my answer would be 15 the same as it was before . Just because it increases 16 the risk, that doesn't -- doesn't necessarily mean 17 that where this product is is going to result in an 18 exposure that's going to increase the risk, so it may 19 or may not be appropriate . 20 BY MR . RION : 21 Q . What would it take, Doctor, before you 22 would say a manufacturer should advise users to take 23 precautions with its products? 24 A . Well, if there was a significant increase 25 of risk based upon exposure, then there may be some A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 24 1 reason to offer a statement about precautions, but -- 2 but certainly, during that period of time, that 3 was -- was not -- not done . 4 Q . All right . Well, once you have a 5 sufficiently -- I guess what I'm asking, do you think 6 the manu -- once the manufacturer knows a product can 7 cause any one, knows with reasonable probability that 8 his product can and in fact will cause asbestosis or 9 lung cancer or mesothelioma, do you think it is 10 appropriate to begin advising that precautions be 11 taken? 12 MR . AENDRICKSON : I object to the 13 question again . 14 THE WITNESS : Again, not necessarily ; 15 it depends on the exposure . 16 BY MR . RION : 17 Q . So you think there are certain 18 circumstances under which a manufacturer might know 19 that his product is in fact causing disease, but yet 20 you would think it would still be appropriate that he 21 fail to warn customers about the potential hazard, 22 depending on the exposure? 23 A . Well, I think if a manufacturer has 24 scientific data that indicates that his product is 25 causing disease, then he certainly has an obligation A . WILLIAM ROBERTS, JR ., & ASSOCIATES DR . RAYMOND HARBISON - EX . BY MR . RION 25 1 to provide some information to alter that exposure . 2 So I would think that, i that information existed, 3 then it might be appropriate . 4 5 have . MR . RION : Okay, I think that's all I 6 MR . HENDRICKSON : That's it? 7 MR . RION : Let me look at my notes . 8 MR . HENDRICKSON : Okay . 9 MR . RION : That's all I have . 10 MR . HENDRICKSON : Doctor, do you want to 11 read this? 12 THE WITNESS : I don't think it's probably 13 necessary . 14 (The witness, afte r having been advised 15 of his right to read and sign this transcript, waives 16 that right .) 17 (The deposition co ncluded at 1 :35 p .m .) 18 19 20 21 22 23 24 25 A . WILLIAM ROBERTS, JR ., & ASSOCIATES 26 CERTIFICATE OF REPORTER 2 3 I, Lisa F . Walkabout, Court Reporter and 4 Notary Public for the State of South Carolina at 5 Large, do hereby certify : 6 That the foregoing deposition was taken before 7 me on the date and at the time and location stated on 8 page 1 of this transcript ; that the witness was duly 9 sworn to testify to the truth, the whole truth, and 10 nothing but the truth ; that the testimony of the ii witness and all objections made at the time of the 12 examination were recorded stenographically by me and 13 were thereafter transcribed by computer-aided 14 transcription ; that the foregoing deposition as typed 15 is a true, accurate, and complete record of the 16 testimony of the witness and of all objections made 17 at the time of the examination . 18 I further certify that I am neither related to 19 nor counsel for any party to the cause pending or 20 interested in the events thereof . 21 22 23 24 25 A . WILLIAM ROBERTS, JR ., & ASSOCIATES 27 Witness my hand, I have hereunto affixed my 2 official seal this 10th day of February, 1999 at 3 Charleston, Charleston County, South Carolina . 4 5 6 ~~ (.( .JQ,~GfSQ..~Ou~ Lisa F . Walkabout Court Reporter My Commission Expires November 14, 2004 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A . WILLIAM ROBERTS, JR ., & ASSOCIATES 28 1 INDEX 2 Page 3 WITNESS/EXAMINATION 4 RAYMOND HARBISON 5 EXAMINATION 6 BY MR . RION 7 CERTIFICATE OF REPORTER 3 26 8 9 REQUESTED INFORMATION INDEX 10 (No information requested) 11 12 E X H I B I T S 13 (No exhibits proffered) 14 15 16 17 18 19 20 21 22 23 24 25 A . WILLIAM ROBERTS, JR ., & ASSOCIATES HARRISON, DR. RAYMOND '47 p1 182 '48(+7 18 :8 'S2 p~ 17:24 17:24 18 :16 18:16 1925 1725 14:17 advice 121 11 :6 advise Ell 23 ;22 82 721 04 [t] 1 Ell 26 :8 1:13 1:13 25:17 advised m 11 :10 11 ;15 25 :14 112 129 10th [1] 27 :2 14[i] 279 151Ixj 1:16 19111 725 1947m 15:19 16 :17 17 :14 17 :16 18 :8 ' 1948(7 16:11 16 :24 17:7 18 :13 18:21 1955 m 12:23 70 :6 20:17 Z(1:23 21 :2 2:5 16 :7 17 :15 1620 17 :15 19 :4 20 :23 219 ~~~8 ~1 23 :12 24:10 affixed m p1 x:13 4:14 ~~athl Agog] 10 :1 P116:20 !:6 219 22:4 22 :7 22:25 ~~Etl ahCidpl ~~m 27:1 24:13 20.12 IS:13 2125 22 :16 7:4 22 :23 199912] 1 :12 272 al Ill 1:7 20041,] 279 alone (t] 18 :21 214pl xlo 234-7030 (i~ 25339pl 26 (q 28:7 29401 D] 3 ~i7 18:6 30 [tl 4:4 304n] 2:11 315ni 2:s 1346-5500[t7 35 Ell 25:17 50 to 5:20 573-3919111 704 pi 1:25 720-9132[11 722-9414111 731-5224 ltj 8[1I 1 :12 803 p1 123 843121 1 :23 1.25 2:11 z:6 2:11 1 :25 2:6 123 1 ;23 2:6 altercn 25 :1 animal (s~ 14:10 14 ;13 14:18 15 :1 X8'15 13:14 14 :15 16 :1 1 [41 14:5 21 :13 23 :7 23 :14 AppgAPPEARANCES[,] 2 :1 ~P~Piiate~s) 23:19 Z4 :~~ 24:20 75;3 artm 14 :~ 15:11 19:4 19:12 19:21 20:18 20:23 21a asbestos ah 522 6:4 1121 12:10 13 :2 14:19 16:23 16:24 18:22 21 :16 22;8 22;16 4:7 6:8 12:21 16:10 1821 21 :23 agbestpg_n]atodt2l 5:24 16:12 864 Ell 125 asbestosis [121 14 :13 97-0-333 Ell 97-C-397 Ell 98-C-70 (t1 able In 14:24 academic [q accurate Eli aChiCVable pi 14 :17 ACTIONDi 1:5 1:6 activities (3) 52 6:6 Bb8a(:si1]e3dnoi928:1:71addedpl additional ['t1 6ts:1:517:21 address Ill iadeqaatep~ 1 :6 is 1 :5 4:3 xa:is 13 :12 i :s S :t 18:2 17:19 1i2o::2z0a 14 :15 n:zo 221125 23 ;10 17 :3 18:15 229 24 :8 179 21 :11 22 :18 aside Ii] u:5 assOCiatedpi 6:3 ASSOCLA'r$sni 1 :21 attorney Iii 8:13 ATTORNEYSrzi :2 2:7 available Ill 20:13 bad p] 72 ~~n~1 19:3 20:5 ZOd4 adveigC(27 13:13 20:16 20:17 2fH.22 CondenaeIt"' 2023 21:2 23:25 been rn 3.3 3:7 22:20 23 :11 24:10 behind[ii 9:7 BENNBTTpl Lz 22 best pi 18:1.3 1825 18:8 21 . E ~l beyondnl 1s:21 boz~s7 11 :17 1120 11 :27 1125 2025 b~oo~ms ~El~i 12 .13 12,E 21 :12 21 :16 22 :1 229 22 :18 23 :10 249 Capitol In 2:10 CaiCiIIOgCII (i) 133 Carolina p] 27:3 1221 26 :4 cases Ell 6:15 9:1o causes 14J 22:9 22:17 6:17 2z :7 239 causing rn 24:19 ~'u CClonakrub 7:11 8:15 93 9:7 10:3 70:4 10 :14 10:20 11 :2 12:11 12:16 12:20 13:1 13 :21 1324 14:3 15:15 13 :19 16:16 183 18 :6 18 :13 via m 22:2 24:17 ~7~1~6 Y7:[s1~7 5:21 19:20 ~u~R1~24 :~25 ~ ~~ 26:1 28:7 certify PI 26:18 26:5 change pi 18 :2 CharlesWn [61 1 :23 2:e 27 :3 27:3 1724 1 :17 2 :11 (3iar]per Ill 1 :24 chemical p~ 4:15 CIRCUITEll 1:1 circumstances (21 222 24:18 ~7II,, ~1 is i:s 1 :5 C18IIIt(q claims (21 4:17 6.2 4:16 clarify [t1 Clearp) 7.3 cljyic m s :s ClOae p] 16:15 13 :16 4:12 College 121 320 321 Columbia Ell ~8 PJ comment Ell 123 19:25 i9 :2o Commission p127 :8 Comp f~15 :10 5: t6 companies Ell 5:14 5:18 ation 1x] 4:16:2 ~j~ DI 26:15 cpmplotedpl 18 :14 comply Ell 4:23 ~26n:1~3 u~~ll concer"[l1 COnaCCLedpl 19:7 20:7 20 ;10 18 :16 concunin$pl 8:18 10:3 14:11 concluded Ell 25 ;17 conclusion t3i i7 :7 i7ao n:ii conclusions m 16:23 17 :16 condition 17:22 conditions ~~ 17 :8 233 c4on:1s1ulti5n:g24nl consumers Ell 14:21 4:24 4 :2 ~~p ~contnaine~d [4] 11:20 12:10 continue n] continuing 111 Control (41 11 :3 11 :6 Contro11Cdf:l 11 :12 correct Do] 10:6 109 16 :8 169 16 :18 16 :19 1 P~Z 86':95 14:22 ti :7 18 :21 10 :25 11 :15 11:11 10:5 16:7 16:13 14:1 nj counsel pi 2:1 26 :19 Czo7u:snty RI ~~~ ~t~ COlt~ ~i~ Court csi 1 :19 622 c2r7i:t8icisms (1) current D] customers [s1 22;10 23:12 DzpsI:i i :z 17:51:1B 1 :1 4:9 11 :14 1 ;1 26 :3 15:10 4:l 12 :10 24:21 z:i ~~[s] 17:15 A. WILLIAM ROBERTS, JR., 8c ASSOCIATES (800)743-DBPO '47 - effects 17:16 18:2 24:24 date [2j 1:12 26:7 Dave pi 3:5 3:8 DAVID Eli 29 DEFSNDANTn] 2:7 Defendants Ell I:8 defending p1 9:10 degree [1] 3:24 demonstratedm 17;21 dependinS Ill deposition (6] 9:8 10:8 ~'6 26:14 derive Ell 24 :22 1 :11 25 :17 42 describe [s1 6:1 99 1724 18:7 described pi 9:5 descliptivC[ll 12 :14 signed Ell determine [21 is :zo 15:8 13 :12 developedcaI s:5 16:12 20:20 21:3 diatpmaoppus Ell 17:1 17:5 tai ~~ 21:3 2121 22:7 2425 docWrns~ 5:4 5:5 14:10 15:14 20:5 20:16 21:25 23:21 17:3 2111 24:19 3 :22 6:19 18 :6 21 :6 25:10 ddoocctuomresnmts (icy a7::i192 7:20 8:16 8:18 9:5 9:7 10:3 10:13 10:16 10:19 12 :11 12:15 12:19 15:15 1621 18:6 doesn't x.16 Ell 23 :16 donep214:19 5:11 5:17 7:13 7:21 15:12 16:25 24 :3 ~[3] 1 :11 3:14 duly!=13:11 d24~:2$ Ell dustnol io:zs 1 1:6 11 :10 12 :14 11 :15 zo:ti zo:i2 Dnvaltzl 8:24 E Ell 28 :1 ~ t~l 17:1 effodm effects ~ 14 :18 15 :4 5:7 7:6 7 :22 17:4 3:7 8:1026:8 l 1:17 1i :s 11 :11 13:15 28:12 17:5 is:zz 13:13 16:22 Index Page 1 either - nor 18:4 eifherpi 5:17 22;17 23 :10 CmPloYed[tl 3:15 employers [4] 5:8 5:171 5:15 5:18 vi=' p16 :5 environmental 111 3:18 established [s] 219 21 :16 estimate (4i 4:4 4:6 5:17 5:19 6:11 93 et p) 1:7 ev15al:3uate [a] 15 :3 ~evilltating(l) 7:15 evaluation Lzl 6:3 28:14 events (1) 26 :20 'iezaCt [i] 5:20 cxamioahonH13:12 26 :12 26:17 28 :5 ozample~l 422 exams rah 4:22 4:17 oaCase 19:5 exhibits In ezltted(t] 28 :13 251 existence 15:12 ~81~1 4:24 15:7 19:4 CzpOCt[ll 21 :20 VAPrA 1&.= 18 Rl 10:4 e:pCitm 7-15 ~g n~ 7:10 ~;g exposedIn e [ts~ 15-13 13:14 17:8 17:19 18:3 18:21 23:18 23:25 242 25:1 FP] 1:19 27-7 facilities Ill facility It) IfaCtpl 1721 7A:19 fail [t] 2421 Iftfit2l 19:20 falp] 12 :7 19:25 IfaWEil 22:1 NbruarYCiI 16 :12 6:4 14:16 17 :21 2123 24 :15 26 :3 11 :1 4:20 24:8 21 :14 19 :21 1 :12 fCllow(t) fibrosis P) 16:13 17:20 fieldm 4:25 B:10 16 :12 Index Page 2 CondenseIt"` HARBISON, DR RAYMOND final [41 16-23 17:2 17 :2 17 :11 finding t2i 13 :5 12 :24 ~~ [21 16:17 fine [1] 3:9 ~~n] finished Ill 19:8 m:8 20:25 first (41 3:11 8~~ 8~Z3 F100I[1) 1:16 Florida pi FLOYD~~ 2.2 follows pl fOlegqlng ~1 26:1 fOImIIla[i~ found Ill foUiRl 6:12 f~aaklYm 13 :4 19:is 19:5 7A:18 B.9 3:16 1:2 3:11 26:6 14:22 16 :11 1o:1 furaiBLod[sl 10:7 10:11 12:20 Gardner nj 824 BAYIll generated pi 10:19 15:15 10:2 12:16 8:10 11 :10 10:13 81vea fit) 15.6 good 4:6 C~10Cnvi11Cp1 1:24 ~ODp pl 8:13 guess (~ 19:11 24:5 H rq 2:5 half nl say ~Hudbipw1 n27M:1 3:7 3:10 28..4 ha2ard(2l 28:12 i : ii 3:14 9:8 2421 ~ H~~ stiff b~'~~ [41 10:14 10 :17 10:7 4:15 13:T0 health [s1 321 19:7 3:19 20:7 help U1 15 :3 ~~~~pl1 29 29 33 39 6:14 1132 12:3 13 :16 13:19 142 14 :4 14:7 19:10 19:17 19:24 2222 23:t3 Zt:1T 25:6 25.8 25:10 hereby ill ~(q n1 holdpl 21:14 hamms 147 ~~ 27:1 13 :12 14:11 15:4 1521 hygiene L21 2(1:11 immediate [ii incidence [q included Pi including Lal 19 :5 iinnccroemaese~P11 239 11 :3 149 21 :11 ]1 :16 19:4 ~2~31:18 i~nc:r2e4ased pi 21 :11 1n~c9t:eoasaesB It] 23 :15 increasing 23 :4 independentP14:13 INDEX [2] Z:IZ ~'~ ~~~~~1 8:17 12'13 1621 ~~~~~~~G~~~~~11I~~n ~~~~~L~1 individual In 20 :14 u:24 129 1423 ~~~d~~l 5:13 industrial [11 11 :3 20 :11 information [31 7A:14 23 :1 252 289 X-10 ~16~:6 P1 16:6 mnl inWfainl insurance pi 5:17 intend Ell intended(,, 4 : 17 1621 5:14 21 :24 23:10 interested Ell ~:m interposeIll 19 :10 interpreting m 15:23 Pt Ill 13 :20 involvod[n 7:4 7:1 2(124 6:19 8:18 mvolveII~n~ ~.8 involving It] 6:8 I" ssure~ss[2l 18 :17 James (s~ 3:4 39 19:13 "~n~ 21 :1 2:5 13 :16 ~(=1 1:21 2:5 jury It] 6:7 Kn] 2:9 K-A-Y-L-0 pl s:zi K6a".2y3[10o17:7 8:2 8:4 10:14 10 :21 21:5 11:11 11 :14 11 :16 12:10 12:17 6:20 79 10:4 11 :4 17:14 11 :17 13 :10 13:15 15:20 195 2022 13:22 18 :14 20:8 20:25 ~d Its 1922 K212NGIai knowing [1) ]~WpI21 21:21 m0~ 1~ 15:7 19:6 JA :19 1:2 >a:~s Zp;lb ~:8 22:17 23 :8 24:6 24 :7 ~~n~~ ~4~ 10:]4 1020 12 :16 12:7A laboratory rte 10 3 13:14 ~~ Pi 7:11 9:5 9:7 I.aigC(1) 1iigCtp~ IaBtp) 13:20 late p~ 725 I.awp11 :15 8:15 12 :11 26:5 14 :11 lawyer's m lawyers(s] 9:73 9:17 921 lead p1 17:22 leavin8n1 ~[l~ 9:7 legal(~] 4:2 4:11 length ]egg nl 4~ 3:5 822 9:18 22.5 4:10 17:19 ~i nl 14:16 ~~~~~[il[4~ 13 :14 19:5 linked LiEa~s, 1:19 27:7 literature In litigation dal 8:18 Lpadbplt [1i 2:4 13:12 14: 12 19:6 zi :u 26:3 20:1 8:4 1: 15 location [21 1:15 longei~i~ look p, 7:20 23:7 looked ill looking 151 11 :17 11 :19 18:23 Louisville [2] 9:18 1nngls) 21:12 229 22:18 249 manati724:6 18 :3 8:IS 21 :18 4;24 18 .22 6:16 22:1 23:10 manufactured Ill 11 :18 mantifaCturcr pol 22:5 22:17 2322 1413 22:6 22:19 24 :6 22:8 23:8 24:18 ~ 82 ~~~ RI 10:17 10:15 ~~~[s7 7:10 7:15 10 :10 12 :8 12 :14 1422 mat~erIil 5:8 IIiaximlim[tl 14 :16 maytal 23 :3 23 :18 23:19 2325 MD pl 324 ~~(1~ 12:4 13:19 17:7 jg~ 1913 925 1522 17 :16 23 :16 ~uns1x] 1021 ioaa Medical [to) 3:22 4:2 4:10 4:13 4:14 4:18 4:19 5:4 5:5 20:1 Medicine Ii] 3.21 mating [41 2:5 8:23 1 :16 9:15 ~9 n:128$9 p] :7A 8:22 mesOtileliOmn ~s~ 21 :22 22:1 229 22:18 23:11 249 met p] 8:21 9:18 9:17 ~24n:18l25 :3 6:4 ~ltonn8~e1 4:14 Motley (21 2. 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RAYMOND t Index Page 4 A. WII,I.IAM ROBERTS, JR., do ASSOCIATES (800)743-DEPO