Document qdZyMmGDpz4v3yKpoxrknVZ6k

file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 1 1 CAUSE NO. 06-H-0395-C 2 AUBREY CLARK AND WIFE, : IN THE DISTRICT COURT KELLY CLARK : OF MATAGORDA COUNTY, 3 vs. :TEXAS : 4 : 23rd JUDICIAL DISTRICT KELLOGG BROWN & ROOT, LLC : 5 AND HALLIBURTON COMPANY : MAY 7, 2007 6 VIDEOTAPED DEPOSITION OF: KENNETH MUNDT, PH.D. 7 APPEARANCES: 8 FOR THE PLAINTIFFS: 9 PROVOST UMPHREY LAW FIRM, L.L.P. 490 Park Street 10 P.O. Box 4905 Beaumont, TX 77704 11 (409) 835-6000 1-800-289-0101 12 BY: DARREN L. BROWN, ESQUIRE 13 FOR THE DEFENDANTS: 14 MEHAFFY WEBER, P.C. One Allen Center 15 500 Dallas Street, Suite 1200 Houston, TX 77002 16 (713) 655-1200 BY: JAMES G. MARTINGANO, ESQUIRE 17 18 Also in Attendance: Rocco Leone, Videographer 19 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (1 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 21 Jill E. Remillard, License No. 385 Certified Realtime Reporter 22 Registered Merit Reporter 23 NIZIANKIEWICZ & MILLER 24 972 Tolland Street East Hartford, CT 06108-1533 25 (860) 291-9191 NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (2 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 2 1 . . . . Deposition of KENNETH MUNDT, PH.D., a 2 witness, taken on behalf of the Plaintiffs, AUBREY 3 CLARK AND WIFE, KELLY CLARK, in the herein before 4 entitled action, pursuant to Texas Rules of Civil 5 Procedure, before Jill E. Remillard, duly qualified 6 Notary Public in and for the State of Connecticut and 7 Commonwealth of Massachusetts, held at Sheraton 8 Bradley Hotel, 1 Bradley International Airport, 9 Windsor Locks, Connecticut 06096, commencing at 10 10:08 a.m. on MONDAY, MAY 7, 2007. 11 12 13 S T I P U L A T I O N S 14 15 It is hereby stipulated and agreed by and among 16 counsel for the respective parties that this 17 deposition is being taken pursuant to the Texas Rules 18 of Civil Procedure. 19 It is further stipulated and agreed that the file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (3 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 witness will read and sign the deposition transcript. 21 It is further stipulated and agreed that an 22 unsigned copy of the transcript will be used at the 23 time of trial. 24 or ***** NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (4 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 3 1 INDEX 2 WITNESS: KENNETH A. MUNDT, PH.D. 3 --------------------------------------------------------------- PAGE 4 DIRECT EXAMINATION BY MR. BROWN............. 5 5 6 EXHIBITS 7 NO. DESCRIPTION PAGE 8 Plaintiffs 9 1 Letter, 5/3/07, with attachments............ 4 10 2 K. Mundt Report, 5/4/07..................... 4 11 3 C. Williams affidavit....................... 4 12 4 G. McGinnis affidavit....................... 4 13 5 P.F. Infante article re latency.............4 14 6 R.A. Rinsky article re epidemiologic risk .. 4 15 assessment 16 7 R.A. Rinsky article re benzene exposure and 4 hematopoietic mortality 17 8 OSHA Occupational Exposure to Benzene; .... 4 18 Final Rule 19 9 L. Zhang article re chromosomal aberrations. 4 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (5 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 10 API Toxicological Review.................... 4 21 11 Benzene data sheet.......................... 4 22 12 Folder of documents.......................... 4 23 13 Notebook re Clark case.......................20 24 14 Study of German rubber workers..............51 25 15 Brown & Root document, 6/1/63...............185 NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (6 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 4 1 (Plaintiffs Deposition Exhibit Nos. 1 through 12 offered and marked.) 2 3 THE VIDEOGRAPHER: Good morning. We are 4 going on the record. The time is 10:08 a.m. 5 Today's date is May 7th, 2007. We are located at 6 the Sheraton Bradley Airport Hotel, One Bradley 7 International Airport, Windsor Locks, 8 Connecticut. 9 This is a videotape deposition of 10 Dr. Kenneth Mundt, taken on behalf of the 11 plaintiff. 12 The case name is Aubrey Clark and wife, 13 Kelly Clark, Plaintiff, versus Kellogg Brown & 14 Root, LLC, and Halliburton Company, Defendant, 15 venued in District Court of Matagorda County, 16 Texas, 23rd Judicial District, cause number 17 06-H-0395-C. 18 My name is Rocco Leone, legal video 19 specialist, representing Niziankiewicz & Miller file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (7 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Court Reporting, 972 Tolland Street, East 21 Hartford, Connecticut, with Jill Remillard, 22 certified court reporter. 23 Counsel, please state your name, your 24 office, and who you represent in this action. 25 MR. BROWN: Darren Brown, Provost Umphrey, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (8 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 5 1 representing the plaintiffs. 2 MR. MARTINGANO: James Martingano, Mehaffy 3 Weber, representing the defendants. 4 THE VIDEOGRAPHER: You may now swear in the 5 witness. 6 (The witness was duly sworn.) 7 MR. BROWN: James, as far as agreements, 8 we're taking this pursuant to Texas Rules of 9 Civil Procedure. Is that agreed? 10 MR. MARTINGANO: That's right. And we also 11 have a standing agreement on these depositions, 12 Darren, regarding signature. The witness will 13 read and sign, but we've agreed to use an 14 unsigned copy at the time of trial since trial is 15 coming up on the 14th. 16 MR. BROWN: All right. 17 ***** 18 KENNETH A. MUNDT, PH.D., the Deponent, having 19 been first duly sworn, deposes and says as follows: file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (9 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 DIRECT EXAMINATION BY MR. BROWN 21 Q. Good morning, sir. Would you state your 22 full name, please? 23 A. Kenneth Arthur Mundt. 24 Q. What's your home address, sir? 25 A. 260 Lincoln Avenue, Amherst, A-m-h-e-r-s-t, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (10 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 6 1 Massachusetts. 2 Q. Where is a daytime phone where you can be 3 reached? 4 A. (413) 256-3556. 5 Q. Where does that ring? 6 A. That's my office. 7 Q. And who are you employed by? 8 A. I'm employed by ENVIRON International 9 Corporation. 10 Q. What's your job there? 11 A. I'm a partner in the firm, and I direct the 12 epidemiology practice area. 13 Q. Anything outside the area of epidemiology 14 that you direct or oversee? 15 A. I oversee the IHSP, industrial health and 16 safety practice. I oversee the nanotechnology 17 practice. 18 Q. How long have you been with ENVIRON 19 International Corp.? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (11 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. Since November 2003. 21 Q. What's your occupation, sir? 22 A. I'm trained and practice as an 23 epidemiologist. 24 Q. And you've been hired by Brown & Root, 25 through its lawyers, the Mehaffy Weber law firm, to NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (12 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 7 1 act as an expert witness in the area of epidemiology 2 in this case; is that correct? 3 A. Yes, sir. 4 Q. My name is Darren Brown. You and I have 5 never met before, have we, sir? 6 A. That's correct. 7 Q. I represent Mr. Clark and his family in 8 their lawsuit against Brown & Root, leading to his 9 acute myelogenous leukemia. And you realize that in 10 that capacity, I'm on the opposite side of the 11 lawsuit from the company who hired you to be an 12 expert witness? 13 A. I understand that. 14 Q. Have you ever given your deposition before? 15 A. Yes, I have. 16 Q. How many times? 17 A. Roughly 12 or 15. 18 Q. I notice that you testified in a case called 19 Ringstaff, in March of 2006, and then also at trial file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (13 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 during that same month. How many times have you 21 given deposition since then? 22 A. I'd have to refer to my list, which is part 23 of my file. 24 Q. We've marked your folder as Exhibit 12. 25 A. (Examining documents.) I gave a deposition NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (14 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 8 1 on June 6th. 2 Q. What type of case was that? 3 A. This was a trace benzene case, California. 4 Q. What was the disease? 5 A. I believe it was a CML, chronic myelogenous 6 leukemia. 7 Q. And you're looking at your list. Do you 8 have the name of that case on your list? 9 A. I do. Rick Coulter and Nancy Coulter v. 10 Parks Corporation. 11 Q. What list is that that you're looking at? 12 A. This is a list of testimony from the 13 previous five years. 14 Q. Is it complete, accurate, and up-to-date? 15 A. Yes, sir, it is. 16 Q. And who prepared the list of testimony in 17 the last five years? 18 A. This is maintained by my staff and updated 19 as needed. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (15 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Okay. So it would have all the testimony 21 you've given up until today's date; is that correct? 22 A. Within the last five years. 23 Q. Okay. I mean, for instance, have you 24 testified within the last month in a benzene or toxic 25 case, as an epidemiologist, and it not appear on that NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (16 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 9 1 list there? 2 A. No, sir. It's up-to-date. 3 Q. Okay. Have you testified in an AML case? 4 A. No, I have not. 5 Q. Have you ever testified in a myelodysplastic 6 syndrome case? 7 A. No, I have not. 8 Q. How many times have you testified at trial? 9 A. Two or three times. 10 Q. In addition to the Ringstaff trial, where 11 you testified last March, in 2006, what other cases 12 have you testified in? 13 A. I testified briefly at trial as a fact 14 witness. I believe that was last year, in the Lattin 15 case, May 6th. 16 Q. All right. Was that an accident that you 17 had observed personally? 18 A. No, sir. I was called to testify about a 19 study I had published. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (17 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Okay. As an epidemiologist? 21 A. As an epidemiologist, but not as an expert 22 epidemiologist. 23 Q. All right. Who called you to testify at 24 that trial? 25 A. I don't recall the lawyer's name. Tim -- I NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (18 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 10 1 won't guess, but from the firm of Thompson Hine. 2 Q. A defense firm? 3 A. Yes. 4 Q. All right. Other than that trial testimony, 5 have you -- and the Ringstaff trial, have you 6 testified in any other trials? 7 A. I recall one trial ten years ago, my first. 8 It was a dioxin case in Rhode Island. 9 Q. So you've testified on three times: once in 10 a dioxin case; once in a benzene case, as an expert 11 witness, which was the Ringstaff case; and then 12 another time as a witness on epidemiology? 13 A. As a fact witness, testifying about the 14 facts of the study I had published. 15 Q. Was there a disease that was at issue in 16 that case where you testified as a fact witness on 17 epidemiology? 18 A. Yes, sir. 19 Q. What was that disease? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (19 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. Brain cancer. 21 Q. What type of brain cancer? Do you remember? 22 A. I don't recall. 23 Q. And that completely summarizes your trial 24 testimony; is that correct? 25 A. I believe so, yes. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (20 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 11 1 Q. Have you ever given any sworn testimony 2 before any governmental agency, such as OSHA or the 3 EPA? 4 A. No, sir. 5 Q. Any governmental agency at all? 6 A. I'm sorry. Sworntestimony? 7 Q. Yes. 8 A. Before any governmental agency? No, sir. 9 Q. Having given depositions in the past, you 10 know what it is we're doing here; correct? 11 A. Assuming it will be similar to the previous 12 ones, yes. 13 Q. Well, we're putting everything on videotape. 14 It's being typed up by a court reporter, and your 15 deposition will be put into a transcript, which 16 you're familiar with; correct? 17 A. Yes, sir. 18 Q. And it can be used at the trial of this 19 case, just as though you were in front of a judge and file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (21 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 jury, testifying in person. Do you realize that? 21 A. Yes. 22 Q. Do you realize that you're under oath to 23 tell the truth today in your deposition, just as 24 though you were in front of a judge and jury? 25 A. Yes, sir. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (22 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 12 1 Q. And that failure to tell the truth can 2 result in you being put in jail? 3 A. Yes, sir. 4 Q. During the deposition, if I aska question 5 that you don't understand, would you stop me and not 6 answer my question and tell me that you don't 7 understand it? 8 A. I'll be happy to. 9 Q. All right. If you answer my question, may I 10 and the jury assume you've understood what I've asked 11 you? 12 A. Fair enough. 13 Q. What did you do to prepare for today's 14 deposition? 15 A. I prepared a report last week, based on the 16 content of the epidemiological literature that I 17 reviewed, as well as the documents provided to me by 18 defense counsel, supplied on the three CDs that are 19 part of my folder. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (23 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. All right. We've marked your folder of 21 documents as Exhibit 12; is that correct? 22 A. Yes. 23 Q. Can you identify Exhibit 12 for the jury, 24 please? 25 A. Yes. It's a folder containing the following NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (24 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 13 1 items: The notice for deposition. A cover memo 2 accompanying the notice of deposition. A copy of my 3 CV. The list of testimony provided in the past five 4 years. The report itself. An index to the materials 5 that I received in this case, from defense counsel. 6 Q. And that's the index of all the materials 7 that are on the three disks that are attached to that 8 folder? 9 A. That's my understanding, yes. 10 Q. Well, have you read it and compared it to 11 make sure that it is accurate and complete? 12 A. No. This is maintained by my staff, as 13 materials arrive. I have reviewed these materials, 14 and I assume it's an accurate representation of 15 what's on these. 16 Q. All right. You've reviewed the materials 17 that are on the disk; is that correct? 18 A. Yes, sir. 19 Q. You've reviewed all of the materials that file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (25 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 are on the disk; is that right? 21 A. At least to screen or scan them. There's 22 certain large volumes of materials, especially 23 medical records, that I didn't review every page of. 24 Q. All right. For the medical record, you're 25 stating you didn't review every page. Are there any NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (26 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 14 1 other documents that are on those disks, that you 2 didn't review or read in preparation for your 3 deposition? 4 A. Yes. There are several copies of 5 Brown & Root safety manuals that are largely 6 redundant, year after year, and large sections that 7 did not pertain to any potential use of solvents or 8 relevant materials to this case. 9 Q. All right. Sometimes I need to object to 10 responsiveness. I need to do that now. You can 11 ignore my objections. 12 What my question was is, can you tell us, 13 from your remember -- or your memory, from knowing 14 what's on those disks, any that you did not review in 15 preparation for your deposition or your report? 16 A. Well, if I understand how you've rephrased 17 the question, then I've reviewed them all. I did not 18 review all sections of all documents, is my previous 19 response. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (27 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Okay. And with regard to the ones where you 21 haven't reviewed all sections, can you give us a list 22 of those? 23 A. Yes: The medical records and the 24 Brown & Root safety manuals. 25 Q. Anything else that you didn't review in NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (28 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 15 1 their entirety, out of those disks? 2 A. (Examining documents.) Likewise, there are 3 several redundant documents pertaining to schedule of 4 rates for offshore construction, Brown & Root 5 documents, the Halliburton annual report, several 6 other technical manuals that were not directly 7 relevant, or redundant with other materials that I've 8 screened. 9 Q. Would it be fair to say that you have 10 reviewed all of them and considered all of them, 11 whether or not you have used -- and used the ones you 12 felt were significant in preparation of the report 13 that you -- we've got a copy of in Exhibit 12; is 14 that right? 15 A. Yes, sir. 16 Q. The CV that you have in Exhibit 12, is it 17 accurate and up-to-date? 18 A. Yes, it is. 19 Q. Is it truthful? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (29 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. Yes, sir. 21 Q. In other words, the things that you say that 22 you've done in your CV, you've actually done? 23 A. Absolutely. 24 Q. Okay. I show you what we've marked as 25 Exhibit 1 to your deposition. You have a copy of it NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (30 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 16 1 in there. I'll let you verify that that's a copy of 2 the same notice of deposition that you received. 3 A. (Examining document.) 4 Q. And that's in the file we've marked as 5 Exhibit 12. 6 A. It appears to be the same. 7 Q. I think we've got an additional cover letter 8 on there - 9 A. Yeah. 10 Q. -- but other than that, they -- are they the 11 same to you? 12 A. There are some -- there's a -- there are two 13 documents on top of what I received. (Indicating.) 14 Q. Okay. You received the last two pages or 15 three pages of what we've marked as Exhibit 1; is 16 that right? 17 A. I received a document three pages, beginning 18 "cause number 06" and so forth. 19 MR. BROWN: All right. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (31 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. MARTINGANO: I don't think we sent him 21 the certificate of discovery. 22 MR. BROWN: Okay. 23 Q. (BY MR. BROWN) Let me just say, so that we 24 are... Out of Exhibit 1, we've got seven pages, and 25 what you're telling me is you received four, five, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (32 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 17 1 and six; is that correct? 2 A. That's correct. 3 Q. Okay. Did you have a chance to go and 4 look - 5 A. I'm sorry. You said out of seven pages, 6 four, five, and six? I thought it was the last three 7 pages of - 8 Q. Well, my last page, the seventh page is the 9 fax sheet. Did you receive that? 10 A. Oh, is that -- yes. That's correct. I did 11 not receive that. 12 Q. Okay. So you received four, five, and six 13 of Exhibit 1? 14 A. Correct. 15 Q. And did you have a chance to look through 16 the items 1 through 14 that we asked to be brought to 17 your deposition today? 18 A. Yes, I did. 19 Q. And have you brought all documents that are file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (33 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 responsive to items 1 through 14? 21 MR. MARTINGANO: Objection to form. 22 THE WITNESS: I did not bring -- I was not 23 able to address all items. I brought what was 24 available. 25 Q. (BY MR. BROWN) All right. Look on request NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (34 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 18 1 1. Did you bring all documents you have with 2 response to item number 1 in the subpoena? 3 A. Yes, with the exception of the memo I 4 mentioned earlier, accompanying the first two CDs 5 received from Mr. Martingano. 6 Q. What memo was that? 7 A. It's referenced in the index. This is 8 simply a cover memo - 9 MR. MARTINGANO: I think it's just a cover 10 letter. 11 THE WITNESS: -- saying, "Here's some CDs. 12 It's this memo, received on April 9th by our 13 office, accompanying these CDs. 14 Q. (BY MR. BROWN) April 9th of 2007? 15 A. Correct. 16 Q. Any particular reason why you didn't bring 17 that memo? 18 A. I couldn't find it. 19 Q. Oh, okay. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (35 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. Everything I've dealt with is electronic. 21 It was paper, and it has been separated from this 22 somehow. 23 Q. All right. Looking through the rest of the 24 list, can you just go down it and tell us whether 25 you've brought all of your documents responsive to NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (36 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 19 1 each of those requests, or if not, which documents 2 that you know you have, that are not here? 3 A. Yes. Number 2, I have. 4 Number 3, I believe I have, with this 5 exception noted. 6 I did not bring any billing records. In 7 fact, this matter hasn't been invoiced yet. I see 8 the first material received were on March 31st, so 9 perhaps there was no time charged until April 1st, 10 the month of April. Invoicing from our office in 11 Arlington, Virginia, is probably in the works. They 12 usually receive the invoices to sign off by the 13 middle of the month following the month for which the 14 time was recorded. So they don't exist yet. The 15 records exist in the billing system, but I don't have 16 immediate access to that. 17 I brought something not quite responsive to 18 number 6, because I've never given expert testimony 19 on industrial hygiene, state-of-the-art and so on. I file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (37 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 assume that may have been a typographical error. But 21 I did give you all testimony that I have given in the 22 last five years, a list that had been prepared for a 23 case previously testified to this year. 24 The studies are here in this notebook, 25 number 7. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (38 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 1 There are also some other background 2 information. There's some pages from American Cancer 3 Society website. There's also a list of materials 4 that are contained in this binder. 5 Q. All right. 6 A. I have -7 Q. That notebook that you have there, what do 8 you call that notebook? 9 A. I call it the notebook. 10 Q. The notebook on the Clark case? 11 A. It's the -- it's a -- this is a notebook of 12 articles relevant to the matter in the Clark case, in 13 which -- which I reviewed and used to formulate my 14 opinions in this case. 15 Q. Okay. Let's -- do you mind if I put an 16 exhibit sticker on that, as Exhibit 13? 17 (Plaintiffs Deposition Exhibit No. 13 offered and marked.) 18 19 Q. (BY MR. BROWN) All right. Are there any file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (39 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 other epidemiological studies or health studies that 21 you used in formulation of your opinions or 22 preparation of your report, that are not included in 23 Exhibit 13? 24 MR. MARTINGANO: Objection to form. 25 THE WITNESS: In order to arrive at this NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (40 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 21 1 set, there was a large -- literature searched and 2 screened. These are the ones that I believe are 3 most relevant to the question of AML and benzene 4 exposure. So I don't note the ones that were set 5 aside or that didn't reach appropriate level of 6 epidemiological quality to be included and relied 7 upon. 8 Q. (BY MR. BROWN) Well, all right. Let me 9 object to response. 10 My question is, is very simply, have you 11 included within your notebook, Exhibit 13, all the 12 opinions which you think are pertinent to the 13 formulation -- strike that. 14 Have you included within your notebook, 13, 15 all of the studies, epidemiological studies and 16 health studies that you believe are pertinent in the 17 formation of your opinions or the preparation of your 18 report in this case? 19 MR. MARTINGANO: Objection to form. And file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (41 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Darren, just -- so, I don't want there to be an 21 argument about this, but we have had sort of a 22 prior agreement, Keith and I, about the studies 23 that the epidemiologists have relied upon. And 24 we made an agreement that you didn't have to 25 bring every study you've ever looked at. It was NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (42 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 22 1 just the ones that were specifically reviewed in 2 this case. I think that's what this binder 3 qualifies for, because there's really no way - 4 he's got some indexes to the report, but there's 5 no way he can bring every single study he's ever 6 looked at. So that's why your question is a 7 little broad. 8 MR. BROWN: I'm not asking that, James. I 9 appreciate that. And I don't mean -- if you all 10 have got agreements. 11 Q. (BY MR. BROWN) But what I'm trying to find 12 out is, which ones have you relied upon? And I would 13 think that if you're going to prepare a notebook that 14 thick of cases that you felt were pertinent, you 15 would have included all the ones that you've relied 16 upon in forming your opinions; is that correct? 17 MR. MARTINGANO: Objection to form. 18 THE WITNESS: That's correct. I think you 19 had two questions. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (43 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. (BY MR. BROWN) All right. 21 A. I think the answer is the same to both. 22 These are the materials upon which I relied. 23 Q. All right. There may be other studies out 24 there that you reviewed, but for one reason or 25 another, you didn't feel that those were something NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (44 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 23 1 that you needed to rely upon or were such that they 2 were reliable enough for you to rely upon; is that 3 fair? 4 A. Correct. 5 Q. Okay. Is there anything that comes to mind, 6 in terms of an epidemiological study or health study, 7 that you know that's out there, that you have relied 8 upon, that's not in Exhibit 13? 9 A. Yes, sir. 10 Q. Which study is that? 11 A. I'm aware of the series of studies or 12 reports by Aksoy, the Turkish shoe manufacturers, 13 that are not, technically not epidemiological 14 studies. 15 Q. All right. Are they not in Exhibit 13? 16 A. They are not in here, correct. 17 Q. And you relied upon those in preparation of 18 your opinions inthis report? 19 A. I have reviewed them and determined that file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (45 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 though there is some informational value, but they 21 don't meet the standard of quality for an 22 epidemiological study. 23 Q. All right. So you haven't included those in 24 Exhibit 13 because you don't feel like they meet 25 the -- your standards of what a study needs to be NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (46 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 24 1 before you could rely upon it? 2 MR. MARTINGANO: Objection to form. 3 Q. (BY MR. BROWN) Is that right? 4 A. That's mostly correct. I also understand 5 that others have relied on those materials, and 6 therefore, they're available in the case, and that I 7 may comment on those things. 8 Q. Well, with regard to the Aksoy study, who do 9 you have an understanding has relied upon those? 10 A. I believe that Dr. Infante has commented on 11 those. 12 Q. All right. Anyone else? 13 A. Not off the top of my head. 14 Q. And you said that they did contain some 15 information of value. What information of value in 16 the Aksoy study did you glean? 17 A. Aksoy's reports and other case reports and 18 case series are of some informational value. They 19 generate hypotheses, but they're not epidemiological file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (47 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 studies that can test hypotheses. So there's a 21 limited value to those kinds of materials. So I 22 don't - 23 Q. They do have value, but -- excuse me. I'm 24 sorry. It's your testimony that they do have value, 25 although limited? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (48 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 25 1 A. Correct. The limited value is often in 2 raising a question that can be answered with a more 3 scientific method. 4 Q. All right. With regard to Exhibit Number 5 12, have you reviewed and relied upon each of those 6 documents that are contained in that exhibit, in 7 formation of your opinions, in preparation of your 8 report? 9 A. I'm sorry. I believe you're referring to 10 Exhibit 13? 11 Q. No. I was talking about Exhibit 12. Now, 12 we -- I thought we covered 13. We may have already 13 covered 12, but I wanted to make sure that we had. 14 MR. MARTINGANO: Are you asking if he's 15 relied upon the stuff in his file? 16 MR. BROWN: Yes. 17 THE WITNESS: Okay. Well, there's certain 18 items, obviously, I didn't rely upon to formulate 19 my opinion, including the notice of deposition, file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (49 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 the correspondence, the index of the materials, 21 my CV, my previous testimony. I have relied upon 22 the materials that I reviewed and summarized in 23 my report. 24 Q. (BY MR. BROWN) Okay. 25 A. As well as the information contained on the NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (50 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 26 1 CDs. 2 Q. When were you first hired in this case? 3 A. It must have been the last days of March. 4 The first materials I received in this case were 5 March -- dated March 31st. 6 Q. Do you usually have a contract with 7 whoever it is that you agree to work for as an 8 epidemiologist? 9 A. I believe there's always a contract. You're 10 talking about a written contract? 11 Q. Yes, sir. 12 A. No. 13 Q. Is it your practice never to have a written 14 contract? 15 A. It's not my practice never to have a written 16 contract. It's usual not to have a written 17 contact -- contract. 18 Q. It's your usual practice that there is no 19 written agreement between you and the -- either the file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (51 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 law firm or the company who hires you to testify as 21 an epidemiologist in a case; is that correct? 22 A. It's probably more often without a written 23 contract and more often with an oral contract. 24 Q. All right. What makes the difference, in 25 terms of whether you have a written contract or NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (52 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 27 1 whether it's an oral contract to work for somebody as 2 an epidemiologist? 3 A. It doesn't make a difference to me, as the 4 scientist. I imagine the -- my business office would 5 have a different opinion. 6 Q. All right. And what makes the difference, 7 in terms of your business office, whether they would 8 require a contract or not? 9 A. I think, as a matter of business practice, 10 it's prudent to have a written contract, although 11 that judgment is left to me, as a partner in the 12 firm. 13 Q. All right. And that's what I'm asking you: 14 What makes the determination in your mind as to 15 whether you need a written contract or not? 16 A. I typically don't require a written contract 17 until I have some problem with a client, such as lack 18 of payment or - 19 Q. Okay. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (53 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. -- breach of what I understood the terms to 21 be. 22 Q. Do you have or do people who you work for in 23 the past or have -- you've been approached by, do 24 they have authority to list you as an expert before 25 they contact you? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (54 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 28 I A. I'm not sure I understand - 2 Q. Well, you have - 3 A. -- what you mean by authority. 4 (Discussion off the record.) 5 THE WITNESS: I'm not sure what Mr. Brown 6 means by the phrase authority. 7 Q. (BY MR. BROWN) Let me rephrase. For persons 8 who have used you in the past as an expert or 9 consulted with you in the past as an expert, do those 10 law firms have your permission to list your name as II an expert in a case they're working on without 12 contacting you and letting you know that you're going 13 to be listed as an expert? 14 A. I wouldn't know who might list me. I expect 15 that if someone intends to list me, that they give me 16 a call and that I say, "You may list me." 17 Q. That's what you require; is that correct? 18 A. I would say that's a standard of practice. 19 I can't say that I have a policy that -- I would file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (55 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 expect that, yes. 21 Q. Do you know of it ever having occurred that 22 somebody listed you without having first contacted 23 you and letting you know that? 24 A. I'm not aware of that, no. 25 Q. When you were contacted in the last part of NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (56 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 29 1 March in this case, who contacted you? 2 A. Mr. Martingano. 3 Q. And what were you asked to do? 4 A. I was asked to review facts and materials in 5 discovery in this case and to then do my independent 6 epidemiological research on those aspects relevant to 7 my expertise and to be prepared to render an opinion 8 on those, on those materials. 9 Q. Is that what you recall the extent of what 10 you were asked to do? 11 A. I believe so, yes. 12 Q. You were not asked to do any original 13 epidemiological research in this case; correct? 14 A. That is correct. 15 Q. You were only asked to review the existing 16 epidemiological data that's out there? 17 A. Correct, and the materials provided in the 18 case. 19 Q. How much are you charging for your time, file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (57 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 acting as an expert in this case? 21 A. (Examining document.) I believe, currently, 22 my time is billed in such matters at 290 per hour and 23 testimony at 350 per hour. 24 Q. And has that been your standard rate for the 25 last year? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (58 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 30 1 A. No. I looked on this list of testimony and 2 fees to verify that, because they changed the 3 beginning of this year. They had not changed since 4 the beginning of 2005. 5 Q. All right. So you -- 290 an hour for 6 research and preparation, and 350 an hour for 7 testimony and depositions and trial; is that correct? 8 A. That's correct. 9 Q. How many hours have you spent in preparation 10 for your deposition today? 11 A. If you are referring to all of the time I've 12 spent on this case as preparation, I really don't 13 know. I can't really guess. In the month's time, 14 perhaps 20 to 30 hours. 15 Q. Your best estimate, you spent, within the 16 last month, 20 to 30 hours researching and preparing 17 for this case; is that correct? 18 A. Correct. 19 Q. So your bill is in the neighborhood of file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (59 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 $10,000 for that work; is that right? 21 A. If that's the math, that's -- I don't 22 dispute it. 23 Q. All right. Did you meet with Brown & Root's 24 lawyers prior to your deposition today? 25 A. No, sir. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (60 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 31 1 Q. Did you meet with them yesterday? 2 A. No, sir. Mr. Martingano and I met about 15 3 minutes before the deposition began. 4 Q. All right. Had -- with -- prior to your 5 deposition here today, did you meet with 6 Mr. Martingano to prepare for your deposition? 7 A. I'm sorry. Is that different from the 8 previous question? 9 Q. Yes, sir. I mean, you told me you've met 15 10 minutes prior to today - 11 A. For the first time. 12 Q. -- for the first time, in preparation for 13 your deposition; is that correct? 14 MR. MARTINGANO: I think what he means to 15 say is this is the first time that we've met. We 16 haven't had any meetings prior to that. 17 Q. (BY MR. BROWN) Well, that's what I'm asking 18 you. 19 A. I'm sorry. I thought I answered it. No. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (61 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 We had never met prior to 9:45 this morning. 21 Q. All right. Had you - 22 A. For any reason. 23 Q. Okay. Had you met with anybody from 24 Brown & Root or from Mr. Martingano's law office in 25 preparation for your deposition today? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (62 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 32 1 A. No, sir. 2 Q. So with regard to lawyer preparation time 3 for your deposition today, you've had 15 minutes of 4 preparation time; is that a fair statement? 5 MR. MARTINGANO: Objection to form. 6 THE WITNESS: I might even question calling 7 the friendly exchanges we had preparation for 8 deposition. 9 Q. (BY MR. BROWN) All right. How many times 10 have you testified as an expert witness for 11 Mr. Martingano's firm or M.C. Carrington? 12 A. I have not. 13 Q. How many times have you been hired as an 14 expert witness, either as a consultant or as a 15 testifying expert, by their firm? 16 A. I was retained by the firm, as a consultant, 17 once prior. 18 Q. And what case was that? 19 A. I believe it was not a case-specific file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (63 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 situation. It was a scientific background. I 21 prepared a review of the literature for -- based on a 22 review of the literature on silica exposure and lung 23 cancer. 24 Q. When did you do that work? 25 A. Several years ago. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (64 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 33 1 Q. You realize that silica is a lung 2 carcinogen; correct? 3 A. Yes. 4 Q. Did you review any videotape prior to your 5 deposition? 6 A. No, sir. 7 Q. Okay. 8 MR. MARTINGANO: Darren, just so it's fair, 9 he's worked with us -- remember the Tucker case? 10 Just for clarification, you did do a report in 11 that case. I don't want there to be any -12 MR. BROWN: All right. 13 THE WITNESS: I apologize I didn't recall 14 that. 15 Q. (BY MR. BROWN) What was the type of case? 16 A. I would have to look at my notes to recall 17 that. 18 Q. All right. 19 MR. MARTINGANO: It was with your office. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (65 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. BROWN: Okay. 21 Q. (BY MR. BROWN) Your work as an expert 22 epidemiologist is typically on behalf of defendants 23 in lawsuits; correct? 24 A. Could you repeat that? 25 Q. Your work as an expert epidemiologist, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (66 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 34 1 involved in litigation, is typically on behalf of 2 defendants in lawsuits; correct? 3 A. That's correct. 4 Q. Defendants being corporate defendants or 5 company defendants; correct? 6 A. Yes, sir. 7 Q. Have you ever testified as an epidemiologist 8 or an expert witness on behalf of an injured or ill 9 plaintiff? 10 A. I have not testified on behalf of a 11 plaintiff, no. 12 Q. Have you ever been consulted or hired to act 13 as an expert witness for a plaintiff in any personal 14 injury lawsuit or lawsuit alleging a disease caused 15 by a toxic exposure? 16 A. Yes, I have. 17 Q. Who has hired you for that? 18 A. There were two occasions. One was my own 19 attorney, before I joined even ENVIRON, Martin file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (67 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Greenblatt. The second one, I don't recall the law 21 firm. 22 Q. All right. 23 A. The matter pertained to an exposure 24 sustained in a confined space. 25 Q. Let's talk about when you were hired as an NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (68 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 35 1 epidemiologist on behalf of Martin Greenblatt, your 2 own personal attorney. What situation was that? 3 A. The situation was an ophthalmologist who had 4 contracted a form of leukemia -- I don't recall a 5 specific type -- and was concerned that her use and 6 handling of optical dyes might have been a 7 contributing factor. 8 Q. And did you provide an opinion in that case 9 as to whether her leukemia was associated with her 10 alleged exposures to dyes or whatever the substance 11 was? 12 A. I researched the available health - 13 relevant epidemiological literature on the substance 14 contained in the dyes and had to report that there 15 was no epidemiological study one way or the other, no 16 evidence whatsoever on the health effects of that 17 material. And - 18 Q. All right. 19 A. Which ended my involvement in the case. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (69 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Do you have a copy of that report, still? 21 A. I doubt it. 22 Q. All right. And with regard to the second 23 situation, where you can't recall the name of the 24 attorney, what was the alleged disease and alleged 25 causal agent? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (70 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 36 1 A. The disease was a hypersensitivity reaction 2 in response to toluene diisocyanate exposure, 3 resulting from the coating of fuel cells inside large 4 aircraft. The plaintiff was an electrician, required 5 to wire the plane after the fuel cells had been 6 coated with this material. It's a urethane coating 7 that off-gases the diisocyanate, and it appeared that 8 it had not been properly ventilated. The man quickly 9 developed a hypersensitivity and some serious health 10 effects due to that exposure. 11 Q. And did you provide opinion as to whether or 12 not his hypersensitivity was related to his exposure? 13 A. Yes, I did. 14 Q. And what was youropinion? 15 A. That there was strong evidence of a causal 16 relationship. 17 Q. Do you remember the name of the plaintiff? 18 A. I do not. 19 Q. Is that lawsuit listed in your list of file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (71 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 cases? 21 A. No, sir. I provided no testimony in that 22 case. 23 Q. Did you provide a report or affidavit? 24 A. I don't recall. 25 Q. Do you -- if you -- NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (72 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 37 I A. I - 2 Q. Excuse me. 3 A. -- presume not, because it's not on the 4 list. I think I rendered an opinion that contributed 5 to negotiations. I believe the case was settled. 6 Q. And you don't remember the name of the 7 plaintiff attorney who hired you? 8 A. I'm sorry. I do not. 9 Q. Do you remember the name of the defendant 10 that allegedly caused this illness? II A. I do not. 12 Q. But when it comes to testimony, every time 13 you've testified, either in a deposition or in a 14 trial, it's been on behalf of a defendant corporation 15 who has been sued by a plaintiff alleging a toxic 16 exposure to their products or to some agent on their 17 premises; is that correct? 18 A. I believe that's largely correct. I had 19 test -- I had -- have worked in many cases of file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (73 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 different nature. But I believe those that resulted 21 in a deposition or court testimony have fit those 22 criteria. 23 Q. All right. Just so that the record is 24 clear, to the best of your knowledge, when you have 25 provided testimony in a deposition or a trial where a NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (74 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 38 1 plaintiff is alleging a toxic exposure caused a 2 disease, it has always been on behalf of a defendant 3 corporation who has been sued, and they've hired you 4 to represent them as an epidemiologist; is that 5 right? 6 A. Correct, those that have gone to deposition 7 or testimony. 8 Q. And in those situations where you've 9 testified in a deposition or in a trial on behalf of 10 the defendant corporation sued for an alleged toxic 11 injury, you have always testified that the 12 plaintiffs disease was not caused by such alleged 13 exposure; is that correct? 14 A. That's certainly -- that's certainly the 15 typical situation. I'm just trying to think if there 16 are exceptions, since your question was very 17 specific. I believe that's correct. 18 Q. All right. Just another way of asking it: 19 Can you think of any instances where you have file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (75 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 testified as an expert epidemiologist, in a trial or 21 in a deposition, where you have testified that the 22 plaintiffs injury, the alleged toxic injury was, in 23 fact, caused by exposures that were created by 24 your -- the client who hired you? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (76 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 39 1 THE WITNESS: I'm sorry. The reason I had 2 stumbled the last couple of questions, I now have 3 grasped what I was bothering about with the line 4 of questioning, was, I think you were assuming 5 that all of the testimony I provided was in toxic 6 tort cases. 7 Q. (BY MR. BROWN) Okay. Let me get the -- in 8 any toxic tort case where you've been asked to 9 testify as an epidemiologist, where the plaintiff was 10 claiming an injury due to some toxic agent, can you 11 think of one instance where you have testified and 12 agreed that the plaintiffs injury was, in fact, 13 causally related to that toxic agent? 14 A. I believe not. 15 Q. All right. Who were some of your corporate 16 clients? And let's start out by listing the ones who 17 were corporate clients who have hired you as an 18 epidemiologist in the field of petrochemicals. 19 A. I'm sorry. Are you referring to companies file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (77 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 that have hired me for expert services - 21 Q. As an expert. 22 A. -- testimony, expert witness? 23 Q. As an expert witness or -- and maybe we can 24 go it that route first: As an expert witness, what 25 companies have hired you? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (78 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 40 1 A. As an expert witness and where testimony has 2 been given, that information is public, and I'm happy 3 to share it with you. Those companies have included 4 several of the petroleum companies. Shell, for 5 example, or Marathon or Crowne. They've included 6 chemical companies. 7 Q. DuPont? 8 A. I don't recall DuPont. Dow, certainly. 9 Q. Union Carbide? 10 A. I don't recall a Union Carbide. 11 Q. How about Exxon? 12 A. I believe so. 13 Q. Mobil? 14 A. I believe, in the last year or two that I've 15 become involved in benzene-related cases, there have 16 been a number of petroleum company defendants or 17 codefendants, not all of which I can recall, 18 represent. I've worked on cases on behalf of the 19 tobacco companies. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (79 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Phillips Morris? 21 A. Phillip Morris. 22 Q. R.J. Reynolds? 23 A. Reynolds, Lorillard. None of those -- well, 24 some of those are not tort cases. 25 Q. Have you worked as an expert in litigation, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (80 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 41 1 as an epidemiologist, for Texaco? 2 A. Not that I recall, but - 3 Q. Chevron? 4 A. -- it's possible. I'm sorry. In some of 5 these cases there are 50 or a hundred codefendants, 6 and I really don't want to represent that I never 7 worked on cases where they were part of a defense, 8 nor do I know exactly where the bills are ultimately 9 paid for my services. 10 Q. Well, I mean, is it your testimony that you 11 could have been working for Texaco or Chevron and not 12 really known it? 13 A. At the time, I would have known it. I'm 14 saying I can't represent the hundreds of possible 15 companies off the top of my head right now. I was 16 not asked to prepare that information, so -- I'm not 17 trying to hide anything. 18 MR. MARTINGANO: And to be fair, I think 19 he's usually retained by the lawyers who file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (81 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 represent those defendants, and sometimes they're 21 in defense groups, and he may not be aware of 22 those groups. 23 THE WITNESS: I'm sorry. I want to correct 24 that. Every time I'm retained, I ask for a list 25 of all of the plaintiffs and defendants, because NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (82 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 42 1 I'm required, within my company, to float a 2 conflict check. So at the point in time, I might 3 attach a document with 200 companies, at which 4 time I could represent exactly what clients or 5 codefendants might be involved in the case. But 6 I can't represent that now. 7 Q. (BY MR. BROWN) Your company would have 8 records of who it is that you've represented in the 9 past; correct? 10 A. Absolutely. 11 Q. Okay. And thoserecords would be 12 up-to-date? They don't throw those away or destroy 13 them; correct? 14 A. I think there's no reason to retain records 15 once matters are settled, so - 16 Q. Well, what about for conflict purposes? 17 A. For conflict purposes, you could imagine 18 that there may not exist a conflict today, but 19 tomorrow, one -- a company that has been in conflict file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (83 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 could call us. So it's not over all time period. 21 We really, as a global company, with 22 thousands of clients, manage the conflicts on a 23 realtime basis. And certainly, if somebody engages 24 with a company that was opposing one of our clients 25 at some point in time, we would then verify that that NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (84 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 43 1 no longer poses a conflict, before engaging in that 2 work. 3 Q. In addition to the petrochemical industries 4 that we have talked about for litigation, have these 5 same companies hired you to do work for them outside 6 of litigation? 7 A. I don't believe they've hired me or my 8 office directly. Certainly, they've hired ENVIRON 9 many, many times, for all kinds of reasons, 10 including -- mainly having to do with environmental 11 contamination, cleanup, audits, due diligence, and so 12 forth. 13 Q. What trade associations have hired you as an 14 epidemiologist? 15 A. I've done quite a lot of work for the 16 American Chemistry Council. I've done work for the 17 Industrial Health Foundation. I've done work for The 18 Chlorine Institute. I'm working now for EUROSIL. 19 It's the European Silica Producers Trade Association. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (85 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Any others? 21 A. I'm working for two trade associations right 22 now, but the work hasn't been completed or published, 23 so their identity, I won't disclose. 24 Q. Have you done work for the Chromium 25 Coalition? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (86 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 44 1 A. I don't believe so. The chromium work that 2 I have done was through the Industrial Health 3 Foundation. There may have been some relationship 4 between Industrial Health Foundation and another 5 group, but I don't recall working directly for 6 Chromium Coalition. 7 Q. Do you have any licenses or certifications, 8 professional? 9 A. No. 10 Q. You're an epidemiologist, and what you've 11 been asked and hired to do in this case is to testify 12 about issues on epidemiology; correct? 13 A. Yes. Sorry. 14 Q. That's okay. I'm getting a little bit dry 15 myself. I guess this is my glass from earlier. 16 You're not a medical doctor, are you, sir? 17 A. That's correct. 18 Q. You have no license to practice medicine? 19 A. Correct. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (87 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. You've never diagnosed a person with a 21 disease? 22 A. Correct. 23 Q. That would be against the law; correct? 24 A. I believe so. 25 Q. You never had to look into the eyes of a NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (88 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 45 1 patient or his family and tell them that you were 2 sorry that they had cancer; correct? 3 A. I've never had to? No. 4 Q. I'm correct about that? 5 A. Correct. 6 Q. You're not a toxicologist, are you, sir? 7 A. No, sir. 8 Q. You don't hold yourself out to be a 9 toxicologist; correct? 10 A. That's correct. 11 Q. Never designed a toxicology study; correct? 12 A. Correct. 13 Q. And you're not an industrial hygienist; 14 correct? 15 A. That's correct. 16 Q. Never designed an industrial hygiene program 17 or study; is that right? 18 A. I've participated in the design of many 19 industrial hygiene programs, but I'm not an file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (89 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 industrial hygienist. 21 Q. Well, as a -- in the -- when you say you 22 participated in the design of an industrial hygiene 23 program, they -- on those programs, did they have an 24 industrial hygienist doing the industrial hygiene 25 function or design of the study? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (90 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 46 1 A. Yes. Absolutely. 2 Q. All right. And those were the people who 3 were looked to in the particular studies or design of 4 those studies to provide the industrial hygiene 5 expertise, correct, not you? 6 A. I'm not sure what you mean by the industrial 7 hygiene expertise. 8 Q. Do you consider yourself to be an expert 9 industrial hygienist? 10 A. No. 11 Q. Okay. You won't be providing opinions in 12 this case, to the jury, as an expert on industrial 13 hygiene; is that - 14 A. Correct. 15 Q. Okay. You've never evaluated any industrial 16 hygiene program? 17 A. I have. 18 Q. You have? 19 A. Yes. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (91 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. When have you evaluated an industrial 21 hygiene program? 22 A. Industrial hygiene, that's why I'm trying to 23 clarify what you mean by industrial hygiene. I 24 understand that industrial hygienists practice 25 industrial hygiene, but the interface between NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (92 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 47 1 industrial hygiene and epidemiology is quite 2 intimate. 3 Industrial hygienists, in my opinion, 4 measure, monitor, control the work environment, but 5 they also generate information that I'm critically 6 dependent on to do epidemiology. 7 Epidemiologists rest between clinical 8 practitioners, who do the diagnosing, and the 9 industrial hygienists that generate the exposure 10 data. And the epidemiologists link those two. The 11 science of epidemiology is to bring the exposure 12 characterization to the disease end points and 13 understand the intricacies of those relationships. 14 So, if a company is interested in having an 15 industrial hygiene program that more than meets their 16 obligations, under OSHA, to monitor and control the 17 environment, but they also want to generate data for 18 research purposes and to be able to characterize 19 individual exposures in the future -- if health file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (93 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 questions arise, let's say, with an emerging 21 technology -- then industrial hygienists are very 22 interested in knowing how that information can be 23 collected, how the program can be designed in order 24 to meet those needs as well. 25 So I'm not saying that I influence the way NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (94 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 48 1 that the industrial hygiene program is designed to 2 meet the legal requirements of the program, but 3 rather, how it can meet the broad interests of a 4 company interested in understanding health and -- of 5 its employees. 6 Q. Okay. Let me object to responsiveness. 7 Do you have to be somewhere at two o'clock 8 today? Do we have to -- I mean, is there a time 9 period where we have to stop this deposition because 10 of your purposes or your schedule? 11 A. Well, I have a very limited schedule. I 12 have just returned from several days' commitment 13 travel, business commitment, and have some 14 obligations due tomorrow, so one way or the other, I 15 will - 16 Q. I will try to do my best, but what I'm 17 saying is if -- you know, and I know sometimes you 18 need to -- feel the need to explain, but if we can 19 just listen to my question, try to be as concise as file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (95 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 you possibly can without -- I'm not telling you how 21 to answer. I'm just saying that might facilitate us 22 getting through quicker. 23 If -- back to my question on industrial 24 hygiene: If a company were to want to evaluate 25 whether or not they had an adequate or inadequate NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (96 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 49 1 industrial hygiene program, under the law, so that 2 they could protect their employees, they wouldn't be 3 calling you, would they? 4 A. Correct. 5 Q. Okay. You're not a certified safety 6 professional, are you, sir? 7 A. Correct. 8 Q. Are you a professional engineer? 9 A. No. 10 Q. Are you an environmental engineer? 11 A. No. 12 Q. Do you have any legal or law -- training as 13 a lawyer? 14 A. No. 15 Q. Do you consider yourself to be an OSHA 16 compliance expert? 17 A. No. 18 Q. How about an EPA compliance expert? 19 A. No. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (97 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Do you consider yourself to be a 21 cytogeneticist? 22 A. No. 23 Q. You know what that is; correct? 24 A. Yes. 25 Q. That's a -- what is your understanding of NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (98 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 50 1 that health profession? 2 A. It's a form of biology, understanding how - 3 genetic expression and interactions of the 4 environment. 5 Q. All right. And you won't be providing 6 opinions on cytology or cytogenics in this lawsuit; 7 is that correct? 8 A. That's correct. 9 Q. You're not an expert in FISH; correct? 10 A. FISH? 11 Q. Do you have -- do you know what that is, in 12 terms of - 13 A. Apparently not. 14 Q. -- chromosomal analysis? 15 A. No. 16 Q. Okay. Have you consulted with any 17 cytogeneticist with regard to this case at all? 18 A. No. 19 Q. Are you a nosologist? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (99 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. No. 21 Q. Have you ever published, in the peer22 reviewed scientific literature, any publication 23 pertaining to benzene? 24 A. I don't believe so. 25 Q. Now, you've been askedthat question before, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (100 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 51 1 and you mentioned your studies of the German rubber 2 workers. Do you recall that? 3 A. Yes. 4 Q. In those studies, you found, in the German 5 rubber worker, excess leukemias; correct? 6 A. It's possible. I haven't looked at those 7 recently. 8 Q. You don't remember the results of your own 9 study? 10 A. That's perhaps ten years ago. I don't - 11 no, I don't. I do a lot of studies. 12 Q. Let's see if I've got a copy. I know I've 13 got a copy of it here somewhere. Give me a sec. 14 (Plaintiff's Deposition Exhibit No. 14 offered and marked.) 15 16 Q. (BY MR. BROWN) Let me show you what's marked 17 Exhibit 14 and ask if you can identify that as your 18 study of the German rubber workers. 19 A. Yes, it is. That's correct. It's one of file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (101 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 the publications from the German rubber study, rubber 21 workers, German rubber workers study. 22 Q. And you can see where I've highlighted in 23 the -- on the first page, the excess of leukemias 24 there; correct? 25 A. In the abstract? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (102 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 52 1 Q. Yes. 2 A. Yes. You've highlighted a phrase pertaining 3 to leukemia. 4 Q. All right. Who funded that study? 5 A. (Examining document.) The study was funded 6 by the German Federal Ministry of Research and 7 Technology. 8 Q. And who was the primary author on it? 9 A. Dr. Kurt Straif, S-t-r-a-i-f. 10 Q. And in that study you found workers who were 11 engaged in certain occupations or certain work areas 12 of these facilities had excess leukemias; correct? 13 A. That's correct. 14 Q. What work areas? 15 A. (Examining document.)The abstract says 16 work areas I and II. Sorry. That's not helpful. 17 Work area I is preparation of materials, and work 18 area II is technical rubber goods. 19 Q. Can you read the highlight -- file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (103 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. Which is not necessarily a work area, but 21 that's how it's characterized. 22 Q. Can you read the highlighted section there, 23 on that page? 24 A. Yes. "Mortality from leukemia: Roughly 25 twofold increases of mortality from leukemia were NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (104 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 53 1 found among workers employed at least one year in 2 work areas I, 11 deaths, SMR 219, 95 percent 3 confidence interval 109 to 392; and II, 14 deaths, 4 SMR 189, 95 percent confidence interval, 103 to 317, 5 table 8." 6 Q. The first is statistically significant 7 doubling of the risk; correct? The first category? 8 A. The first SMR is over -- greater than 2. 9 Q. Right. That's telling you, as an 10 epidemiologist, that something in these people's work 11 environment is causing their excess leukemia, and 12 it's not due to chance; correct? 13 A. That's close to correct; not exactly. It 14 indicates that there were 2.19 times as many observed 15 leukemias than expected for a group of this size, 16 depending on whatever reference rate was used in that 17 analysis. It cannot, on face value, tell you what 18 caused that excess. It's a first step. 19 Q. I'm not asking you, Does it say -- Does it file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (105 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 tell you what caused it? I'm saying there's 21 something in these people's work environment, that 22 based on that information, you would think, as an 23 epidemiologist, something there is causing this, and 24 it's not due to chance; correct? 25 A. That's a possibility. That's not -- that's NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (106 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 54 1 not an accurate interpretation of an SMR. An SMR can 2 only tell you whether there is an excess above what 3 was expected. It can't tell you what the reason was 4 for it. 5 Q. Well, I mean, does the 95 percent confidence 6 interval rule out the possibilities that the excess 7 is due to chance? 8 A. It doesn't -- certainly doesn't rule out, 9 but according to the arbitrary standard that we 10 accept, that 5 percent of the time we're wrong, it's 11 unlikely that you observe an excess of this size 12 simply due to chance. 13 Q. Okay. May I see Exhibit 14, please? Over 14 here, on page 331 of it, it says, "Mortality from 15 leukemia: In 1982 the IARC working group concluded 16 that there was sufficient evidence of excess 17 mortality from leukemia among workers employed in the 18 rubber industry." 19 The very next sentence says, "Among a file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (107 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 British cohort, an excess of myeloid leukemia was 21 associated with one tire plant where plastic film 22 manufacturing entailed exposure to benzene." Did I 23 read that correctly? 24 A. (Examining document.) Yes. 25 Q. Do you recall your prior testimony, wherein NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (108 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 55 1 you were asked, had you ever done any studies that 2 involved or relate to benzene? And your answer was 3 yes, and you referred to this study? 4 A. This certainly relates broadly to benzene. 5 This is not a benzene study. 6 Q. All right. That's a study of rubber 7 workers? 8 A. Right. 9 Q. You were trying to find out for this - 10 purposes of this study, whether there were excess 11 disease states among this work population; correct? 12 A. That's correct. Your earlier question asked 13 if I had done any benzene studies. 14 Q. And with regard to -- what you found out is, 15 yes, this particular group had excess leukemias; is 16 that right? 17 A. There were subsets within the rubber 18 industry for which we detected excess occurrence of 19 leukemias. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (109 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. All right. Did you, as an epidemiologist, 21 attempt to -- or form any opinions as to the cause of 22 the excess leukemias? 23 A. One would not do that, based on this level 24 of study. This group, after I just stopped working 25 with them, may have continued to look more NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (110 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 56 1 specifically at specific risk factors in the 2 workplace. I believe at this stage of a study, one 3 generates these kinds of observations and hypotheses, 4 that are then tested with some more stringent types 5 of investigations. 6 Q. Let me object to responsiveness. 7 My question was simply, did you try to form 8 any conclusions as to the cause of the excess 9 leukemias in that study? 10 A. That would be written in here. I'd have to 11 review the text. I don't believe so. 12 Q. I'll represent to you I don't see it 13 anywhere in the text. Do you recall, as you sit 14 here, any such conclusion or opinions being rendered 15 by you or any of the authors? 16 A. I think we tried to represent accurately 17 those things in the report. It would be 18 inappropriate to guess without appropriate analysis, 19 detailed analysis of what's going on in these places. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (111 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. There's one other part I'd like to read to 21 you from that same page we were just discussing. It 22 says, "Our data suggest an association between 23 mortality from leukemia and occupational exposure in 24 work areas I and II, where exposure to solvents may 25 have been high." Did I read that correctly? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (112 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 57 1 A. It sounds correct. I agreewith that. 2 Q. And am I fair in interpretingthat as, 3 whoever is doing this study is of the opinion that 4 it's more than likely the solvents that is causing 5 this excess? 6 A. I don't think it says that. I think it says 7 that that's a possibility. 8 Q. All right. 9 A. This would be - 10 Q. Well, they don't - 11 A. -- at least scientifically, what's different 12 from areas I and II, from other areas, but maybe 13 that -- because this industry is a solvent intensive 14 industry, that there is some role for that. It's 15 a -- remains a hypothesis and a reasonable one. 16 Q. That's the only hypothesis that is mentioned 17 there; correct? 18 A. That's correct. 19 Q. And from that, since that's the only one file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (113 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 mentioned, as far as the authors of this study and 21 what they were considering, is that the possibility 22 was that it was exposure to the solvents that was 23 resulting in the leukemia; correct? 24 A. Absolutely. Untested, but a reasonable 25 hypothesis. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (114 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 58 1 Q. And one of the solvents that was in that 2 industry was benzene; correct? 3 A. I believe that's correct, yes. 4 Q. Do you know any solvent that is more 5 leukemogenic than benzene? 6 A. That's not an epidemiological question. 7 There are studies of rubber workers in which the 8 associations with leukemia are as great or greater 9 for toluene, for example, the U.S. rubber worker 10 study. 11 Q. Sir, let me ask you, as an epidemiologist, 12 is your opinion that toluene causes leukemia at the 13 same rates as benzene? 14 A. I don't think I've seen epidemiological 15 study to demonstrate that. 16 Q. Would it be your opinion, as an 17 epidemiologist, that with regard to solvents that can 18 cause or have been associated with leukemia, that 19 benzene is most strongly associated with that, among file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (115 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 all solvents? 21 A. I believe that's fair, and I think you're 22 referring to AML, not all leukemias. 23 Q. Well, I mean, we can break it down into cell 24 types if you want, but as far as solvents go, do you 25 know of any, as you sit here, that are more strongly NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (116 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 59 1 associated with causing leukemia or AML than benzene? 2 A. I think the strongest is with benzene. 3 Q. All right. With regard to your study, did 4 you break down the cell types of the leukemias? 5 A. I don't believe so. Keep in mind, this is a 6 mortality study. And these are fairly small numbers. 7 I think I read 11 and 14. So further division of 8 that small number often gives you highly unstable 9 numbers, that are not particularly easy to interpret. 10 Q. Okay. But sometimes it just - 11 A. I can check - 12 Q. -- as raw data, those are indicated 13 somewhere. Do you recall that -- having ever 14 separately listed the cell types of the different 15 leukemias there? 16 A. That may not have been reliably available 17 from the cause of death information. Sometimes the 18 death certificate is only -- only indicates leukemia, 19 and then it precludes our subdividing those. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (117 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Okay. Thank you. 21 Sir, have you ever testified that benzene 22 was a cause of a plaintiffs alleged leukemia? 23 A. No, sir. 24 Q. Have you ever provided any report or 25 consulting opinion where there was a plaintiff in a NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (118 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 60 1 lawsuit claiming leukemia as a result of exposure to 2 benzene, where you agreed or opined that the exposure 3 was related? 4 A. No. 5 Q. Are you a member of the API yourself, sir? 6 A. No. 7 Q. Have you ever participated or sat on any of 8 their committees? 9 A. No. 10 Q. Are you a member of the American Chemistry 11 Council? 12 A. No. 13 Q. Have you ever sat on any of their 14 committees? 15 A. No. 16 Q. Are you a member of the National Safety 17 Council - 18 A. Excuse me. With respect to the ACC, I've 19 served -- I've been retained and served as a file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (119 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 consultant, and I've served on more academic panels, 21 but I haven't served on any of their official panels. 22 Q. How many times have you been retained by the 23 ACC as a consultant, or the CMA? 24 A. My work began with the organization when it 25 was known as CMA, and was specifically to conduct an NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (120 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 61 1 update of the large cohort of vinyl chloride workers. 2 So there's a series of agreements under which I've 3 prepared scientific research for them. 4 I have served as a consultant on panels 5 where certain issues were discussed. 6 Q. What issues? 7 A. The establishment of good practices for 8 epidemiologic research, to parallel good laboratory 9 practices, EPA, establishing standards for workplace 10 surveillance, occupational health and safety and 11 exposure surveillance programs. 12 And one more recently -- I can't recall - 13 pertaining to a metaanalysis approach used by 14 Dr. Lesley Rushton, from Birmingham University. 15 Q. On what disease or what agent? 16 A. I'm sorry. I just can't recall that. I'd 17 have to look. It might - 18 Q. Was it benzene? 19 A. It might -- I don't think it was benzene. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (121 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 It might be on my resume. 21 Q. All right. 22 A. Would you like me to look and see if I 23 can quickly find it. I - 24 Q. If you can quickly find it. 25 (Discussion off the record.) NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (122 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 62 1 A. (Examining documents.) Okay. I don't see 2 any reference here. I'm sorry. 3 Q. (BY MR. BROWN) But is it possible you could 4 have worked as a consultant to the American Chemistry 5 Council or the CMA on an issue regarding benzene? 6 A. I don't recall any work with them on 7 benzene. 8 Q. How about leukemia? 9 A. No. 10 Q. Sir, in your practice as an epidemiologist, 11 do you rely upon any epidemiological texts that you 12 find to be authoritative? 13 A. Yes. I have a favorite. 14 Q. Which is it? 15 A. It's Ken Rothman's Modern Epidemiology. 16 Q. What others do you find to be authoritative? 17 A. Can you clarify what you mean by 18 authoritative? 19 Q. What others do you use and rely upon in your file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (123 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 practice as an epidemiologist? 21 A. I use Harvey Checkoway's Occupational 22 Epidemiology textbook. And then I use a number of 23 others, just as references. 24 Q. Can you list those? 25 A. Some of them statistical. Text by Lemeshow, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (124 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 63 1 Hosmer, on regression. Kleinbaum and Cooper. Sorry. 2 Q. Maybe you could spell them for her. 3 A. Lemeshow, L-e-m-e-s-h-o-w. Kleinbaum, 4 K-l-e-i-n-b-a-u -- b-a-u-m. Those are probably the 5 main texts. 6 Q. Have you ever done any consulting work for 7 OSHA? 8 A. I have not. ENVIRON does quite a lot of 9 work for OSHA. 10 Q. All right. But -- well, let me object to 11 the response. 12 My question was, have you ever done any 13 consulting work for OSHA? And I think your answer is 14 no; is that correct? 15 A. Me personally. I just want to make it 16 clear. 17 Q. You personally; correct? 18 A. I personally have not. 19 Q. Okay. And has any of your work as an file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (125 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 epidemiologist been used by OSHA for anything that 21 your employ -- well, let me ask you this: Do you 22 know if any of your work as an epidemiologist has 23 ever been used by OSHA, as a consultant? 24 A. If my work as a consultant, for some -- any 25 client has been used by OSHA, for what purpose? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (126 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 64 I Q. Well, let me go back. With regard - 2 do you -- is it your testimony is that your employer 3 has done consulting work for OSHA? 4 A. Yes. 5 Q. In what areas? 6 A. We provide risk assessments for OSHA. 7 Q. And what -- for what chemicals or 8 substances? 9 A. I don't do this work, so I don't know for 10 sure. I know one recently was for hexavalent II chromium. 12 Q. All right. The work that's been done for 13 OSHA, by your employer, is not -- you have not been 14 involved in; is that right? 15 A. I have not done the risk assessment. I'm 16 not a risk assessor, so I have not participated in 17 the work that they have done for OSHA. 18 Q. Have you participated in the work that your 19 employer has done for OSHA, in any respect? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (127 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I don't believe so. 21 Q. Have you ever done any consulting work for 22 NIOSH? 23 A. I've worked with NIOSH. I'm not aware that 24 they hire consultants. 25 Q. Well, have -- can you answer my question: NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (128 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 65 1 Have you ever done any consulting work as an 2 consulting epidemiologist for NIOSH? 3 A. I'm not sure exactly what you mean. I don't 4 want to argue, but it seems like a vague question. 5 I, two weeks ago, worked with NIOSH, and they paid my 6 expenses for the work to cohost a workshop on 7 nanotechnology. 8 Q. All right. 9 A. Is that consulting for NIOSH? 10 Q. Well, do you consider it to be? 11 A. I'm a consultant, and my time was donated, 12 but my expenses were paid, so there was a 13 relationship and there was an agreement. 14 Q. Other than nanotechnology that you've 15 described, have you done any other work for NIOSH? 16 A. I have received a grant from NIOSH to do my 17 doctoral dissertation work. 18 Q. On what -- in what area? 19 A. It was in sensitization and marine proteins, file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (129 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 seafood proteins, in the workplace. 21 Q. Like, if somebody's allergic to shrimp? 22 A. Yes, exactly, and it makes it difficult to 23 work in a shrimp plant. 24 Q. Okay. With regard to NIOSH, have you ever 25 done any consulting work on the issue of benzene or NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (130 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 66 1 leukemias? 2 A. No. 3 Q. Have you ever done any consulting work for 4 the National Institute of Health? 5 A. Generally? I received grant money from 6 National Cancer Institute, which is part of NIH. 7 Q. Well, my only question is, have you 8 consulted -- have they hired you to do a specific 9 study as an epidemiologist or do research for them? 10 A. Again, I don't understand the specifics of 11 the relationship that you're getting at. I was 12 awarded a grant to do a specific piece of work having 13 to do with PAH, polycyclic aromatic hydrocarbon, 14 exposure in the steel industry in Eastern Slovakia. 15 Q. By the National Cancer Institute? 16 A. Yes. 17 Q. Anything other than that study? 18 A. No. 19 Q. Was that original research work that you file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (131 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 did? 21 A. Yes. 22 Q. Who did you do that work with? Was that by 23 yourself, or did you have coauthors? 24 A. Let's see. That was done while I was still 25 part of a different company, Applied Epidemiology, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (132 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 67 1 and that was done with a colleague who -- in Germany, 2 who now works for ENVIRON. 3 Q. Did you publish the results of that work? 4 A. The results were presented at some 5 professional meetings, but there was no full report 6 filed. The study was a feasibility study. It was 7 largely determined what kinds of data would allow 8 what kinds of research questions to be addressed. 9 Q. Anything that involved benzene or leukemia? 10 A. Not specifically. I think there certainly 11 are benzene exposures in the coking facilities of a 12 steel plant, as part of the mixture. But we were 13 interested primarily in the PAH exposures there. 14 Q. All right. I mean, did any of your work 15 specifically focus on benzene? 16 A. No. 17 Q. No, you didn't analyze any monitoring 18 results for benzene, in that study; is that right? 19 A. I don't recall so, no. That's correct. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (133 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Have you ever done any consulting work for 21 the CDC? 22 A. You understand NIOSH is part of CDC? 23 Q. All right. 24 A. So, beyond CDC, I've been a peer reviewer 25 for a number of years for ATSDR. I think they are NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (134 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 68 1 part of CDC as well. I may be wrong. 2 Q. Any of that related to benzene or leukemia? 3 A. They're typically waste site investigations 4 that include the whole mix of contaminants, 5 pollutants. Benzene may have been included, but not 6 specifically benzene. 7 Q. Do you recall anything specific about 8 benzene in your work for the ATSDR? 9 A. No, sir. 10 Q. Have you ever worked for the Texas 11 Department of Health? 12 A. I don't believe so. 13 Q. Has anybody ever hired you to determine the 14 causes or potential causes of acute myelogenous 15 leukemia? 16 A. No, sir. 17 Q. Has anybody ever hired you to determine the 18 causes or potential causes of any blood disease or 19 cancer? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (135 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. No, sir. I assume you mean to do research 21 on this, these topics 22 Q. Right. specifically. 23 A. Correct. 24 Q. Outsideof this particular case, have you 25 ever done any consulting work for Brown & Root? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (136 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 69 1 A. No, sir. 2 Q. So your relationship with Brown & Root is 3 only with regard to litigation; is that correct? 4 A. This litigation, correct. 5 Q. What is your understanding of Brown & Root's 6 business? 7 A. I don't pretend to know all about it, but as 8 it pertains to this case, I understand that they 9 would contract for large marine construction 10 projects, such as the construction of oil rigs. 11 Q. Anything else about your understanding about 12 the nature of their business? 13 A. No. Not specifically. I've seen some 14 references to land-based operations and oil 15 facilities, but I have no further familiarity with 16 those. 17 Q. Have you done any studies or research of the 18 data to determine disease rates among Brown & Root 19 employees? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (137 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. No, I have not. 21 Q. Have you done any to determine disease rates 22 surrounding or pertaining to maritime workers in 23 general? 24 A. No, I have not. And you're referring, 25 again, to primary research? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (138 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 70 1 Q. Right. 2 A. Yes. I have not. 3 Q. Have you done secondary work regarding 4 disease rates among Brown & Root employees? 5 A. No. 6 Q. Have you done any type of research at all 7 regarding disease rates among maritime workers in 8 general? 9 A. Right. With regard to this case, I've 10 looked into the literature to see if there are 11 studies published on maritime workers and disease - 12 Q. And from your report, I take it there's none 13 that you could find? 14 A. That's correct. 15 Q. Sir, do you recognize benzene as a 16 carcinogen? 17 A. Yes, sir. 18 Q. Do you recognize benzene as a leukemogen? 19 A. Yes. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (139 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Do you recognize it as a poison? 21 A. Yes. 22 Q. Do you recognize benzene as being strongly 23 associated with causing acute myelogenous leukemia, 24 in the medical scientific literature? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (140 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 71 1 THE WITNESS: I'm very familiar with the 2 epidemiological literature from which that 3 conclusion was derived. 4 Q. (BY MR. BROWN) And do you agree that benzene 5 is strongly associated with causing acute myelogenous 6 leukemia in the medical and epidemiological 7 literature? 8 MR. MARTINGANO: Objection to form. 9 THE WITNESS: Yes, at sufficient 10 concentrations. 11 Q. (BY MR. BROWN) And you're familiar with the 12 concept of individual susceptibility; correct? 13 A. Yes. 14 Q. All right. And that is what, as you 15 understand it? 16 A. Not all individuals are equally susceptible 17 to the toxic effects of chemicals, or anything else, 18 for that matter. 19 Q. And that's a true statement; correct? I file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (141 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 mean, that's generally accepted among epidemiologists 21 and medical doctors: that each individual, due to 22 their physical makeup, is different in the way they 23 respond to exposure to a toxic substance; correct? 24 A. That's generally correct, yes. 25 Q. You agree that it is generally accepted in NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (142 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 72 1 the field of epidemiology that benzene is associated 2 with causing acute myelogenous leukemia; correct? 3 A. Yes. At adequate concentrations. 4 Q. All right. And do you know what 5 concentrations or what levels, threshold levels are 6 required that would cause -- of benzene exposure, 7 that would cause an acute myelogenous leukemia in 8 every particular individual? 9 A. No, sir. I don't think that's known. 10 Q. The range would vary drastically because of 11 this concept of individual susceptibility; correct? 12 MR. MARTINGANO: Objection. 13 THE WITNESS: Presumably. 14 Q. (BY MR. BROWN) Have you read OSHA's risk 15 assessment or risk estimate on the number of people 16 who are expected to get acute myelogenous leukemia, 17 even with the reduction of the permissible exposure 18 level to one part per million? 19 A. I have not specifically seen that. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (143 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Have you read the American Conference of 21 Governmental Industrial Hygienists' opinions about 22 excess leukemias at one part per million? 23 A. I have not. These -- I have relied on the 24 primary literature. 25 Q. Well, do you have an understanding that NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (144 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 73 1 because of their concerns of continued excess of 2 leukemia at the one part per million level, that the 3 ACGIH proposes a TLV of benzene at .1 parts per 4 million? 5 A. I'm not familiar with their rationale. I am 6 familiar with the underlying literature. 7 Q. You know that to be a case, that they have 8 proposed a lower than one part per million standard 9 for the protection of people exposed to benzene; 10 correct? 11 A. I'll accept what you say. I have not 12 looked - 13 Q. Okay. 14 A. -- at ACGIH's deliberations, no. 15 Q. When did you first learn personally that 16 benzene was associated with causing diseases of the 17 blood or leukemia? 18 A. Probably 20 or 25 years ago. 19 Q. And how did you learn that for the first file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (145 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 time? 21 A. I began my training in epidemiology in the 22 early eighties, and benzene, by then, was quite a 23 classic topic. 24 Q. Prior to your training in epidemiology, did 25 you have an understanding that benzene was harmful to NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (146 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 74 1 your health? 2 A. Probably not. 3 Q. Had you ever been exposed to benzene prior 4 to that time? 5 A. We've all been exposed to benzene. 6 Q. How about exposed to pure benzene? 7 A. It's possible, in the laboratory setting. 8 Q. Prior -- when you say "possible in a 9 laboratory setting," where would you have been? 10 A. Either in high school or, more likely, 11 college chemistry classes. 12 Q. Do you know what benzene looks like? 13 A. Yes. 14 Q. What does it look like? 15 A. A clear liquid. 16 Q. Do you know what it smells like? 17 A. No, sir. I can't say I know specifically 18 what benzene smells like compared with any other 19 solvents. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (147 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. But one thing that you're sure of is the 21 first time you knew it could cause blood cancers or 22 leukemia was when you began your work as an 23 epidemiologist in your graduate studies; is that 24 right? 25 A. That's correct. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (148 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 75 1 Q. If somebody at one of your school 2 laboratories were providing benzene to you and 3 exposing you and the other students there to benzene, 4 they weren't telling you that it could cause cancer 5 or leukemia at that time, when you were in those 6 labs; correct? 7 A. That's correct. University laboratories 8 are -- have not been well-controlled workplaces. 9 Q. And as a person who was in those labs and 10 having friends in those labs with you, you expect 11 and -- that those people who provided that benzene to 12 you would tell you about the known health hazards; 13 correct? 14 A. If it's known, of course, yeah. 15 Q. And by 20 years ago, it was known that 16 benzene could cause leukemia; correct? 17 A. I assume it was known, yes. 18 Q. Do you have any idea about the state of the 19 art of benzene and how long -- how far back it goes file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (149 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 that it was known and reported that diseases, failed 21 diseases of the blood and cancers of the blood were 22 caused by exposure to benzene? 23 MR. MARTINGANO: Objection to form. 24 THE WITNESS: I'm aware of there's a long 25 history, but I also would represent that the NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (150 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 76 1 Infante study in '77 was probably the focal point 2 for that previous work. 3 Q. (BY MR. BROWN) Well, let me object to the 4 responsiveness. 5 My question is, are you aware of the history 6 of the state of the art of benzene and how far back 7 it has been known and reported that benzene could 8 cause fatal diseases of the blood? 9 MR. MARTINGANO: Objection to the form. 10 THE WITNESS: I'm familiar with the fact 11 there's a long history and a number of reports. 12 Q. (BY MR. BROWN) All right. Did you know in 13 1897 benzene was reported to cause aplastic anemia? 14 A. I believe that was reported, yes. 15 Q. You know aplastic anemia to be a fatal 16 disease of the blood; correct? 17 A. Yes, sir. 18 Q. Did you know that by 1928, there were 19 reports that benzene could cause leukemia? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (151 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I agree that there were such reports. I 21 only am careful with wording because these were not 22 epidemiological studies. And anyone can conclude 23 causation. But it wasn't until these situations were 24 studied epidemiologically that would allow me, as an 25 epidemiologist, to say these are causal relation- NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (152 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 77 1 ships. 2 Q. Well, did you know in 1948 that the API, 3 through efforts among the health professionals from 4 the different chemical companies like Mobils, Doctor 5 and Professor Drinker, from Harvard, reported, in its 6 toxicolgical review for benzene that even at that 7 time, there were reasonably well-documented instances 8 of the development of leukemia from chronic exposure 9 to benzene? 10 MR. MARTINGANO: Objection to form. 11 THE WITNESS: Yeah. I am familiar with 12 multiple historic reports and their conclusions. 13 Q. (BY MR. BROWN) You don't need, as an 14 epidemiologist, an epidemiological study to determine 15 that an exposure can cause a disease; correct? 16 A. That's a philosophical question. I - 17 Q. Let's go back - 18 A. If you're talking about gunshot wounds to 19 the head, it's not so difficult. But as you move file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (153 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 toward more complex diseases and more complex 21 pathologies, then it's much more difficult to 22 conclude causation on observational evidence. 23 Q. How about scrotal cancers among 24 chimneysweeps? 25 A. That was reasonably well-studied NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (154 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 78 1 epidemiologically. 2 Q. Well, they didn't have what we refer to as 3 modern epidemiological principles back then, did 4 they? 5 A. Correct. It was intuitive. 6 Q. How long ago was that? 7 A. That's about 1600s or something like that, I 8 guess. 9 Q. They didn't have any greater than twofold 10 increased risk at the 95 percent confidence interval 11 criteria back at that time, did they? 12 A. Well, I won't imply that that's what's 13 necessary to determine causation, but I understand 14 what you're saying. That's correct. There are 15 observations that are valid, that lead to 16 interventions, public health interventions, without 17 doing modern epidemiological research. 18 Q. That's exactly my point. There are 19 observations that can be derived or obtained from file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (155 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 other things than a twofold increased risk at a 21 95 percent confidence interval, such that would be 22 sufficient to have a causal connection; correct? 23 MR. MARTINGANO: Objection to form. 24 THE WITNESS: Yes. Just like stress and 25 ulcers, until H pylori was discovered, until the NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (156 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 79 1 true cause was identified, stress was the causal 2 factor. 3 Q. (BY MR. BROWN) Well, I mean, going back to 4 our original example -- and you've studied polycyclic 5 aromatic hydrocarbons. That's the culprit in the 6 chimney soot that was causing the problems with 7 cancers in the chimney sweeps; correct? 8 A. Right. 9 Q. And even back in the 1600s, without modern 10 epidemiology and the twofold, greater than twofold 11 increased risk criteria, at a 90 or 95 percent 12 confidence interval, that relationship was 13 established, and it's even correct and it lives on 14 today; correct? 15 A. That's right. Many of them have been 16 validated. 17 MR. MARTINGANO: Is this a good time for a 18 break? 19 MR. BROWN: Yeah. Yeah, yeah, yeah. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (157 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. MARTINGANO: Okay. Let's go off the 21 record. 22 THE VIDEOGRAPHER: The time is 10:38 -- I 23 mean, the time is 11:38 a.m. We are going off 24 the record. 25 (A recess was taken.) NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (158 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 80 1 THE VIDEOGRAPHER: The time is 11:49 a.m. 2 We are back on record. 3 Q. (BY MR. BROWN) Sir, before our break, we had 4 talked about the association that -- between benzene 5 and acute myelogenous leukemia, which you said was 6 generally accepted among epidemiologists in your 7 field. Do you recall that? 8 A. Yes. 9 Q. Are you familiar with the benzene standard? 10 A. Which? 11 Q. The OSHA preamble to the 1987 benzene 12 standard. 13 A. I've probably seen it. I can't recite it, 14 no. 15 Q. Would -- and that's a large document. I 16 understand you wouldn't be able to recite it. But 17 with regard to that document, do you know of any 18 other single document which more thoroughly analyzes 19 the health hazards of benzene and the epidemiology file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (159 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 that is associated with benzene than the preamble to 21 the OSHA 1987 benzene standard? 22 A. I'd really have to look at it and compare it 23 with others, but it is a substantial representation 24 of that literature, as of that time. 25 Q. All right. Well, in the past, for this NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (160 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 81 1 case, have you gone back and tried to look at the 2 OSHA benzene standard and determine which parts are 3 no longer valid or which parts are still valid? 4 A. Oh, no. I'm sorry. I didn't mean to imply 5 that. I look at the epidemiological literature, 6 which is constantly being published and updated. So 7 it could only have benefited from what was known at 8 its time, in its day. 9 Q. All right. Even in 1987, OSHA makes this 10 statement: "OSHA believes these studies clearly 11 demonstrate an association between benzene exposure 12 and increased risk of leukemia. The agency does not 13 believe this conclusion is now seriously challenged." 14 Do you see that box there in the middle of the page? 15 A. Uh-huh. Sure. 16 Q. Do you agree with that statement? 17 A. Yes. 18 MR. MARTINGANO: For the record, anyone read 19 in that exhibit number? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (161 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. BROWN: That was Exhibit Number 8. I'm 21 sorry. 22 Q. (BY MR. BROWN) Do you see that on - 23 A. Yes. Thank you. 24 Q. -- front of the benzene standard? Yeah. 25 Thanks. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (162 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 82 1 Sir, what do you recognize as the accepted 2 credible risk factors of acute myelogenous leukemia? 3 A. Apart from high-level benzene exposure, I 4 would say ionizing radiation -- again, at an 5 adequately high dose, because we're all exposed to 6 ionizing radiation -- certain chemotherapeutic 7 agents, drug treatments. I think those are the most 8 clearly recognized. And I think among others that 9 continue to be explored are the mixtures of solvents 10 and other -- possibly other solvents. 11 Q. All right. Do you recall last time, when 12 you gave your deposition back in March of 2006, you 13 listed benzene, radiation, chemotherapy, age? But 14 you didn't list this new one, the solvent mixtures. 15 Have you done some additional research? 16 A. I'm sorry. I was trying to be responsive 17 and state what was -- what were the known ones. I 18 believe that was your question. 19 Q. Yes. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (163 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I believe in both cases I represented the 21 ones that were recognized or known. I simply added 22 that there are others that are -- that continue to be 23 explored. 24 Q. All right. 25 A. I didn't say that these are accepted in the NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (164 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 83 1 known category. 2 Q. Let me object to responsiveness. 3 What, in your opinion, are the risk 4 factors of AML that are generally accepted in the 5 epidemiological field? 6 A. The ones I stated, minus the general 7 solvents. 8 Q. All right. So, if I'm correct, what you've 9 said is the accepted risk factors of AML that are 10 accepted among epidemiologists in that field are 11 benzene, radiation, and chemotherapy; is that 12 correct? 13 A. Yes. 14 Q. Any others that you can -- you would 15 consider to be generally accepted as causes of AML? 16 A. Not off the top of my head, no. I believe 17 that I've summarized them as well in the report, so 18 if there's any others, they would be there. 19 Q. Well, let's take a look at your report. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (165 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 I've marked it as Exhibit 2. It's also in 21 Exhibit 12. You can feel free to look at whatever 22 copy you'd prefer. 23 Would it be stated -- first of all, is 24 Exhibit 2, which we have here in front of you, is 25 that a complete and accurate copy of your report in NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (166 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 84 1 this case? 2 A. Yes. 3 Q. All right. Is your report in final form? 4 A. Yes. 5 Q. When did you create it? 6 A. Last week. 7 Q. It says the date of May 4th on the top of 8 it; is that correct? 9 A. That would have been the date that we sent 10 it to Mr. Martingano. 11 Q. All right. And my question was, when did 12 you create the report that you have marked as 13 Exhibit 2, with the date May 4th? 14 A. I believe May 4th was Friday. 15 Q. All right. 16 A. It was produced beginning the Friday before. 17 Q. All right. So a week before May 4th, you 18 had -19 A. Last week, yes. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (167 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Sometime at the end of April, that report 21 was in final form; is that correct? 22 MR. MARTINGANO: Objection to form. 23 THE WITNESS: No, sir. I'm sorry. It was 24 begun - 25 Q. (BY MR. BROWN) Okay. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (168 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 85 1 A. -- a week prior to May 4th. 2 Q. Okay. You got your assignment in late 3 March. You began your report the last Friday in 4 April, is that right, and then you publish or 5 finalize it on May the 4th? 6 A. That's correct. 7 Q. Okay. Did you have any drafts of that 8 report? 9 A. Yes, sir. 10 Q. How many? 11 A. It's an evolving document. In my office we 12 keep one copy, and the people who work on it make all 13 their changes directly to that one copy. So every 14 time someone makes a change to it, it would be the 15 latest draft and different from the previous one. 16 This is the culmination of that process. 17 Q. Who else besides you contributed to that 18 report? 19 A. I have a team that includes -- and I believe file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (169 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 participated in this, the preparation of this case - 21 Diane Mundt, Ph.D. She is my sister and also an 22 epidemiologist. Linda Cohen, C-o-h-e-n. She's a 23 master's level epidemiologist. And a technical staff 24 person. 25 Q. Who is that? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (170 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 86 1 A. Melanie Kourbage, K-o-u-r-b-a-g-e. 2 Q. Can you tell me, from looking at Exhibit 2, 3 the contributions from Diane Mundt and the 4 contributions from Linda Cohen? 5 A. Linda would not have drafted text. I have 6 written the majority of this. I've revised and 7 edited all of this. So this is my final product. 8 Diane Mundt would have assembled the first drafts 9 regarding the relevant literature in the industry, 10 chemical industry and so on. 11 Q. Can you point those out under the bold 12 headings, if that's one way to refer to it? 13 A. Occupational benzene exposure and risk of 14 AML, this section is a review of the literature. 15 This is drafted and the relevant literature assembled 16 by staff. 17 Q. Okay. So it was - 18 A. Especially on short timelines. 19 Q. Okay. Diane Mundt developed Occupational file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (171 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 benzene exposure and risk of AML section, which is 21 pages 4, 5, and 6 of this report, and you reviewed 22 that and approved it; is that right? 23 A. Correct. 24 Q. Did Diane Mundt draft any of the other 25 portions of your report? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (172 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 87 1 A. I believe some drafting of parts here and 2 there are throughout the report, yes. 3 Q. Any other portions that you specifically can 4 point out? 5 A. No. 6 Q. Did she draft all of this report? 7 A. No. 8 Q. Which parts were originally and only drafted 9 by you andapproved by you? 10 A. (Examining document.) I'm pretty sure I 11 wrote the part about my qualifications. 12 Q. Okay. 13 A. General methodologic approach. I 14 probably -- I drafted this paragraph, into which my 15 staff inserted the specific search terms that they 16 used to unearth the literature. We've spoken - 17 let's see. Linda Cohen provided the background 18 information for the overview of AML. She has a 19 biology background and may have contributed some at file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (173 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 least verification of information there. The rest of 21 that was my authorship. 22 We've spoken about the review of the 23 epidemiological literature. That was begun by Diane. 24 I drafted the section on benzene -- Mr. Clark's 25 alleged benzene exposure. And all of the staff NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (174 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 88 1 worked and contributed toward verifying those 2 statements in the voluminous case documentation that 3 I received. 4 Q. Did you feel you had sufficient time to 5 prepare the report in its final form? 6 MR. MARTINGANO: Objection to form. 7 THE WITNESS: The report, as it stands, 8 reflects what I would like to say in this case. 9 Q. (BY MR. BROWN) All right. You're not going 10 to be providing any other opinions or factual 11 observations with regard to your opinions as an 12 epidemiologist in this case, that are not stated in 13 this report; is that correct? 14 MR. MARTINGANO: Objection to form. 15 THE WITNESS: Correct, unless there is more 16 information provided that would impact these - 17 this, such as exposure information. 18 Q. (BY MR. BROWN) You -- well, you're not aware 19 of any exposure data for Mr. Clark, in terms of file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (175 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 industrial hygiene monitoring data; correct? 21 A. There's -- I'll be blunt. There's a clear 22 lack of any evidence of exposure, so I have a hard 23 time commenting about such exposure. 24 Q. Well, let me object, responsiveness, and 25 I'll talk to that -- about that in a minute. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (176 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 89 1 My question was, you're not aware of any 2 industrial hygiene monitoring data for exposure 3 analysis of Mr. Clark; correct? 4 A. I'm unaware of any industrial hygiene 5 monitoring data. 6 Q. And you have not seen any summaries of any 7 such data; correct? 8 A. Correct. 9 Q. And to your knowledge, you don't even know 10 if Brown & Root ever monitored any of their workers 11 to determine if they were being overexposed to 12 benzene; correct? 13 A. I don't even know if benzene was present, 14 but correct. 15 Q. Well, let me object to responsiveness. 16 To your knowledge, do you know whether or 17 not Brown & Root ever monitored any of their workers, 18 such as Mr. Clark, to determine their exposures to 19 benzene? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (177 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I don't know one way or the other. 21 Q. Did you know that since 1958, it's been the 22 law in Texas that employers had an obligation to not 23 overexpose workers to benzene above the accepted 24 exposure limit of 25 parts per million, back in 1958? 25 A. That sounds prudent. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (178 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 90 1 Q. Did you know that was the law in Texas? 2 A. No. No. That's the first I've heard of 3 Texas law. 4 Q. Would you know of a way, as an 5 epidemiologist who has, at least by your statement, 6 some experience with industrial hygiene, would you 7 know of a way for a worker to -- for an employer, 8 rather, to evaluate a worker's exposure to benzene in 9 terms of 25 parts per million, without doing 10 industrial hygiene monitoring? 11 A. Well, that assumes -- I think you folks call 12 it foundation -- that benzene was present. I think 13 in a workplace where benzene was known to be present, 14 one could and should monitor for worker exposures. 15 Q. Well, again, let me object to 16 responsiveness. 17 My question was, do you know of a way, as an 18 epidemiologist, that an employer could detect levels 19 of benzene at 25 parts per million back in 1958, file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (179 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 without doing industrial hygiene monitoring? 21 A. No. 22 Q. Do you know what the odor threshold of 23 benzene is? 24 A. I believe there are a number of reports that 25 suggest a level at which it can be perceived. Again, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (180 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 91 1 there is biological variability in our senses as 2 well. 3 Q. And what is your understanding of the odor 4 threshold of benzene? 5 A. I believe I've seen references in the -- as 6 much as a hundred or more, before it's detectable, 7 reliably. 8 Q. A hundred or more parts per million? 9 A. Yes. 10 Q. With regard to -- well, back at the - 11 you -- would it be your opinion that an employer 12 would have an obligation to make sure that they were 13 not overexposing their employees to hazardous 14 substances? 15 A. Yes. This is good practice -- it's not 16 epidemiology. This is - 17 Q. It's just common sense? 18 A. -- common -- I mean, as a general member of 19 the population, one could answer that question file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (181 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 correctly. 21 Q. I believe you've even stated in your prior 22 trial testimony that employers, not only did they 23 have an obligation to protect -- protect their 24 workers; they had an obligation to study their 25 workers. Do you recall that? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (182 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 92 1 A. Yes. 2 Q. And do you agree with that,still? 3 A. I do. 4 Q. And is that a new concept,or is that a 5 concept that you think has been prudent, going back 6 for a number of years? 7 A. Well, I think, in general, it's prudent, but 8 I think it's necessary where hazards are unknown. So 9 it would be a difficult call where one already knew, 10 clearly, the hazards of a material. It's a different 11 issue. It's an ethical obligation, then, to protect 12 employers -- employees. But I think -- I feel 13 strongly that where risks of materials are unknown, 14 there is an obligation to study. 15 Q. And when you say there is an obligation to 16 study, you mean epidemiologically? 17 A. Study as in monitoring environment or 18 studying health effects, yes. 19 Q. Disease rates? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (183 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. It's not just limited to epidemiology, is 21 what I wanted to say. 22 Q. All right. You should study them -- study 23 the air they breathe in terms of industrial hygiene 24 monitoring, is what you mean; correct? 25 A. Correct. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (184 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 93 1 Q. You study their biological effects of any 2 ill effects they may be experiencing through contacts 3 with agents in their job; correct? 4 A. That's correct. 5 Q. And that should have been -- those kind of 6 activities should have gone on in the sixties and 7 seventies; correct? 8 MR. MARTINGANO: Objection to form. 9 THE WITNESS: I'm not sure, after saying 10 this is generally true, I would focus on sixties 11 and seventies. 12 Q. (BY MR. BROWN) I would just say as far 13 back -- what I don't want to get at is that you come 14 up at trial and say, "This is all a new concept and 15 not until the 2000s should somebody have been doing 16 that." These things, you would agree, employers 17 should have been testing and studying their workers 18 before Mr. Clark ever started work at Brown & Root; 19 correct? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (185 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. MARTINGANO: Objection to form. 21 THE WITNESS: Well, I think your first part 22 of your question refers, in general, to 23 employers. I'm not sure exactly what it has to 24 do with Mr. Clark and Brown & Root. But I would 25 agree with the general -- the beginning of your NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (186 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 94 1 question. 2 Q. (BY MR. BROWN) Okay. In general, employers 3 should have been testing workers and studying their 4 work force to determine if they were experiencing ill 5 effects or being overexposed to certainly chemicals, 6 dating back into the fifties and sixties, in general; 7 correct? 8 MR. MARTINGANO: Objection to form. 9 THE WITNESS: In general, yes. And I think 10 it became a legal obligation under the OSHA. 11 Q. (BY MR. BROWN) All right. And you weren't 12 even aware that the Texas Department of Health had a 13 regulation in 1958? You weren't aware of that; 14 correct? 15 A. That's right. You mentioned that. 16 Q. With regard to the drafts of the report, did 17 you save any of your drafts? 18 A. This is the draft. I think I explained that 19 there is one document to which all people add file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (187 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 comments. Now -- oh, if you mean if they're split 21 off and saved along the way, no. 22 Q. All right. So if something needs to be 23 changed, it's deleted and it's gone for good? 24 A. This is it. It goes to the same document. 25 Q. Were any of -- NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (188 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 95 1 A. Until it's submitted. 2 Q. Okay. Were any of the drafts or any changes 3 made to your report, that we've marked as Exhibit 2, 4 after speaking with Mr. Martingano or anybody from 5 his firm? 6 A. I didn't speak to Mr. Martingano or anyone 7 from his firm between the Friday he asked me to 8 prepare the report and 9:45 this morning. 9 Q. Okay. How about anybody else that helped to 10 prepare this report? 11 A. I believe the only correspondence with our 12 offices was arranging this meeting; that there was no 13 reaction to this report since it was submitted. 14 Q. All right. So nobody -- your testimony is, 15 no one from your office spoke with Mr. Martingano or 16 anyone from his firm concerning this report, prior to 17 you signing your name on it? 18 A. That's correct. Or since. 19 Q. When you prepared your report, did you have file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (189 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 the deposition of Mr. Clark? 21 A. Yes, sir. 22 Q. Did you have the deposition and affidavits 23 of his coworkers, where they described their 24 exposures to benzene and Mr. Clark's exposures to 25 benzene? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (190 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 96 1 A. Yes, sir. 2 Q. Did you have the deposition testimony of 3 Mr. Clark's treating physician at M.D. Anderson? 4 A. That, I don't know. 5 Q. Did you have the medical records from 6 Mr. Clark, from M.D. Anderson, where it says, from 7 the very first day that he went and sought treatment 8 there to save his life from this disease he has, that 9 he was asked if he had chemical exposure, and he told 10 them he had exposures to benzene? 11 MR. MARTINGANO: Objection. 12 MR. BROWN: Did you see that record? 13 MR. MARTINGANO: Objection to form. 14 THE WITNESS: Well, as you've represented, I 15 didn't see that exactly. I did see that he 16 sought medical treatment, and I did see that a 17 physician volunteered with a possible cause, such 18 as chemical exposure. 19 Q. (BY MR. BROWN) Well, let me object to file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (191 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 responsiveness. 21 You're not saying that a physician 22 volunteered something. You understand when a person 23 goes to a place like M.D. Anderson and is trying to 24 get his life saved because he has a fatal, terminal 25 illness, that a history is taken of him; correct? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (192 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 97 1 MR. MARTINGANO: Objection to form. 2 THE WITNESS: I understand that 3 history-taking is a routine process in medical 4 practice, for whatever reason one is going to a 5 physician. 6 Q. (BY MR. BROWN) And a prudent oncologist, 7 when taking a history, would ask the person about 8 potential risk factors; wouldn't you agree? 9 A. Risk factors? 10 Q. Risk factors of cause of their disease, and 11 in particular in Mr. Clark's case, his AML? 12 A. See -- I'm sorry. Your question was - 13 lacked specificity. 14 Q. I'm sorry. 15 A. A physician would ask a patient whether he 16 or she had had benzene exposure, chemotherapy, or 17 radiation exposure. That seems reasonable if that 18 treating physician knows what the risk factors are 19 for the disease. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (193 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. All right. And do you have any reason to 21 believe that the reason that benzene is mentioned in 22 his medical records at M.D. Anderson the first time 23 he ever presented there was anything other than a 24 response that he gave to a physician doing her job in 25 asking about what potential risk factors he had in NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (194 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 98 1 terms of what may have caused his AML? 2 MR. MARTINGANO: Objection to form. 3 THE WITNESS: That sounds reasonable. I 4 have no idea what was asked or what the reason 5 for asking was. 6 Q. (BY MR. BROWN) And you haven't seen his - 7 her deposition, as I understand your testimony? 8 A. I did not dwell on a lot of the medical 9 record information, because the diagnosis of de novo 10 AML was clear throughout the record. 11 Q. Well, you said you didn't dwell on it. Did 12 you see Dr. Williams [sic], Mr. Clark's oncologist, 13 what her definition of de novo leukemia was? 14 MR. MARTINGANO: Objection to form. 15 THE WITNESS: I may have seen it, but I'm 16 not expert in medical diagnosis. 17 MR. MARTINGANO: And just to be fair, 18 Darren, this deposition was just taken, and he 19 has not seen it, so -- I mean, I'm not trying to file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (195 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 trick you. 21 MR. BROWN: Okay. And I said 22 "Dr. Williams." It's Dr. Thomas. 23 MR. MARTINGANO: Thomas. 24 MR. BROWN: I'm sorry. 25 THEWITNESS: Not having seen it, it was the NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (196 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 99 1 same to me. 2 Q. (BY MR. BROWN) What's your definition of 3 de novo leukemia? 4 A. My understanding of it -- I'm not capable of 5 defining it, as you might medically -- is a leukemia 6 that arises without precursor, either known exposure, 7 high exposure, or myelodysplasia or blood dyscrasia. 8 It's, quite frankly, a -- idiopathic. 9 Q. And who gave you that understanding? 10 A. From my reading and study of the literature. 11 Q. What literature? What literature do you 12 rely upon to get that definition? 13 A. To get my understanding? 14 Q. Yes, sir. 15 A. It's broadly. There are -- I'm not sure if 16 it's included in something like this, but I've looked 17 at a number of publicly available textbook type... 18 (Indicating.) 19 Q. All right. What are you referring to there? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (197 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I'm not intending to refer to anything 21 specifically. I'm saying I can't recount exactly 22 what documents that might have contributed to my 23 understanding of de novo. 24 Q. The de novo leukemia that you reference is 25 the de novo leukemia that is referenced by Dr. Thomas NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (198 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 100 1 in Mr. Clark's medical records; is that correct? 2 A. Yes. 3 MR. MARTINGANO: Objection to form. 4 Q. (BY MR. BROWN) Mr. -- or Dr. Thomas was 5 asked what she meant when she said "de novo 6 leukemia." Let me just read it, and I'll show you. 7 Mr. Martingano asked, "Well, what do you 8 mean by saying 'de novo AML'?" 9 Her answer was: "Means it's newly 10 diagnosed, as opposed to a relapse or refractory." 11 Did I read that correctly? 12 A. I trust your reading. 13 Q. Is that your understanding of the diagnosis, 14 sir? 15 A. I think that's fair. I'm not in a position 16 to critique that. 17 Q. So you don't know - 18 A. It seems compatible with my understanding, 19 yes. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (199 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Okay. And, anyway, she's the one who wrote 21 it in his medical records, and that's what she thinks 22 it means, according to her testimony; correct? 23 MR. MARTINGANO: Objection to form. 24 THE WITNESS: I have no reason to doubt her 25 testimony. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (200 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 101 1 Q. (BY MR. BROWN) What's your definition of a 2 secondary leukemia? 3 A. My impression would be those that are not 4 de novo, that followed some other identifiable marker 5 or event. I do understand that Mr. Clark had blood 6 work prior to his diagnosis, that didn't suggest an 7 underlying myelodysplasia. That's really the root of 8 my understanding of that aspect of this case. 9 Q. All right. Let me object to the 10 responsiveness. 11 My question was, what's your understanding 12 of the definition of secondary leukemia? I think 13 your answer was "anything that's not de novo"; is 14 that correct? 15 A. Yes. 16 Q. Would secondary leukemia, in your mind, 17 equate to a leukemia that was -- that occurs as a 18 result of chemotherapy treatment for another primary 19 cancer? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (201 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I believe so, yes. 21 Q. All right. Let me read to you Dr. Thomas's 22 understanding and definition of secondary leukemia. 23 She's asked, by Mr. Martingano, on page 28 of her 24 deposition, "You're familiar with the concept of 25 secondary leukemia?" NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (202 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 102 1 Her answer was: "Yes." 2 "Can you tell me what that means?" 3 Her answer was: "That generally refers to a 4 leukemia that is suspected to be related to a prior 5 exposure, usually referenced to chemotherapy 6 exposure." 7 Did I read that correctly? 8 A. Yes. I'm glad I got that one right. 9 Q. And that's your understanding as well; is 10 that - 11 A. That's my impression, yes. Again, I'm not 12 in a position to critique these on a technical basis. 13 Q. Okay. And have you used de novo leukemia or 14 secondary leukemia or idiopathic leukemia in any way 15 in formulating your opinions in this case? 16 A. Yes. 17 MR. MARTINGANO: Objection. 18 Q. (BY MR. BROWN) Tell me how you've done that. 19 A. Based on what we've just discussed, but not file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (203 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 that deposition, which I have not seen, the medical 21 records indicating that Mr. Clark's AML was de novo, 22 has implications for the interpretation of the 23 epidemiological literature. 24 Q. Well, it's your testimony that you would 25 agree with her that when she's wrote "de novo" in NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (204 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 103 1 his -- for his diagnosis of leukemia, she meant it 2 was never -- a leukemia that had not previously been 3 diagnosed? 4 MR. MARTINGANO: Objection to form. 5 THE WITNESS: Well -- I'm sorry. I said 6 that was compatible with my understanding. 7 Q. (BY MR. BROWN) Okay. 8 A. If you look at the universe of de novo and 9 secondary, you might define de novo as those that are 10 not secondary. And she says secondary one is as a 11 result of a chemical exposure. So if he -- she 12 indeed used her term and her definition, one could 13 logically argue -- and I'm not an expert on this - 14 that, therefore, it was not a chemically-induced one. 15 Q. All right. Let me object to responsiveness. 16 You agree her definition is not the same as 17 the definition of de novo leukemia that says "this 18 leukemia is idiopathic or we don't know the cause of 19 this leukemia"? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (205 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. MARTINGANO: Objection to form. 21 THE WITNESS: I'm sorry. Technically, I 22 don't have the background to argue this. It 23 sounds like semantics. If it hasn't been 24 diagnosed before or if it -- there has been no 25 indication of it, it gives rise to it, there's no NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (206 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 104 1 reason to believe that it existed before that 2 point in time, it seems compatible, my 3 understanding and what you've read from that 4 deposition. 5 Q. (BY MR. BROWN) So you're saying if de novo 6 means we don't know what caused this particular 7 leukemia, that's the same as de novo meaning this 8 leukemia has never been diagnosed before; this was 9 newly diagnosed? Those are the same to you? 10 A. I didn't say they were the same. I said 11 they're compatible. 12 Q. Okay. 13 A. If there was no indication of it existing 14 before, it is de novo. 15 MR. BROWN: We need to stop and change the 16 tape. It would be a good time, I guess, to take 17 another quick break. 18 MR. MARTINGANO: Yeah. Okay. Sure. 19 THE VIDEOGRAPHER: The time is 12:18 p.m. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (207 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 We are going off the record. 21 (A recess was taken.) 22 THE VIDEOGRAPHER: The time is 12:22 p.m. 23 We are back on record. 24 Q. (BY MR. BROWN) All right. You don't dispute 25 that plaintiff Mr. Clark actually does have acute NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (208 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 105 1 myelogenous leukemia; correct? 2 A. Correct. 3 Q. That's a medical diagnosis, and that's not 4 your area; correct? 5 A. Correct. 6 Q. We were looking at your report that you've 7 marked as Exhibit Number 2, or that we've marked as 8 Exhibit 2. All right. At the top of page 3, it says 9 you've critically assessed Mr. Clark's potential 10 exposure to benzene while working for Brown & Root as 11 a rigger on a construction barge. Do you see that? 12 A. Yes. 13 Q. You say, "No direct evidence of benzene 14 exposure or use has been produced, and my assessment 15 is based on the deposition testimony of plaintiff's 16 industrial hygienist report," and you continue on 17 there. What do you mean, you critically assessed the 18 potential for exposure? What did you do? 19 A. Well, this is a general approach. Critical file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (209 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 assessment is to look at whatever evidence exists and 21 to say, "Does this impact my opinion with respect to 22 the relationship between exposure and disease?" 23 Now, we established that -- in the next 24 paragraphs, that benzene is capable of causing 25 leukemias. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (210 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 106 1 Q. Okay. Let me stop you there. Let's talk 2 about the critical exposure assessment that you did. 3 Really, all that you did was, you had some 4 information that there was no benzene on this barge, 5 and you compared that to what plaintiff said, and 6 it's your conclusion that there's no benzene on the 7 barge, so, therefore, there was no exposure; is that 8 right? 9 MR. MARTINGANO: Objection, form. 10 THE WITNESS: No. I think this is clear. 11 This says there's no evidence beyond these - 12 this oral testimony of Mr. Clark and his 13 coworkers. So, admittedly, there's very little 14 to critically assess. Normally, we have purchase 15 or requisition records or exposure monitoring, 16 and the critical assessment would include all 17 forms of evidence supporting the claim of 18 exposure. 19 Q. (BY MR. BROWN) You're saying, normally, it's file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (211 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 the normal case that you have evidence of benzene 21 purchase records to look at in a case like this? 22 A. I'm saying it's -- my experience is 23 normally, -- my understanding -- the plaintiffs 24 burden to document that such exposure took place or 25 that there are available records that say, "Yes, this NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (212 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 107 1 was -- this material was shipped to this barge," for 2 whatever reasons. 3 Q. I'll agree it's our burden to prove it, and 4 I'll agree it's a lot harder to prove when 5 Brown & Root destroys all of its sales documents. Do 6 you know anything about how they kept their documents 7 and their document retention policy? 8 MR. MARTINGANO: Objection to form. 9 THE WITNESS: I have no background in this 10 area. I have no knowledge of record retention 11 practices. 12 Q. (BY MR. BROWN) All right. Have you even 13 asked? 14 A. No. I have been asked to review the 15 materials produced in this case. 16 Q. All right. 17 A. And I have, as in any other case, critically 18 assessed those records that have to do with the 19 exposure, and there are none. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (213 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. In your critical assessment, did you even 21 ask, "Are there any benzene purchase records 22 available for the period that Mr. Clark says that he 23 was exposed to benzene?" 24 A. I did not ask for those things, no. 25 Q. Don't you think those are important types of NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (214 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 108 1 information if you're going to make a critical 2 assessment? 3 MR. MARTINGANO: Objection, form. 4 THE WITNESS: Let me clarify that my 5 understanding of my role is to critically assess 6 what has been produced through discovery. And I 7 also understood, as you reiterated, it's 8 plaintiffs burden to produce those, through 9 discovery. And all of that, I assume, has taken 10 place in the months or years prior to my 11 involvement, over the last few weeks. 12 Q. (BY MR. BROWN) Has it been your experience, 13 sir, in your working for all these companies, that 14 plaintiffs, the hourly workers typically get -- keep 15 copies of purchase records of the chemicals that 16 they're required to use in their job? 17 MR. MARTINGANO: Objection, form. 18 THE WITNESS: It's my understanding that the 19 industrial hygienists that are working on behalf file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (215 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 of those people would seek and produce, through 21 discovery, such records if they exist. 22 Q. (BY MR. BROWN) Let me object to 23 responsiveness. 24 My question is, has it been your experience 25 that somebody who worked by the hour back in the NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (216 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 109 1 1970s would have kept up with records on how -- the 2 chemicals he used and purchase records and that type 3 of thing, invoices, that's not typical, is it? 4 A. I didn't say that the plaintiff or an hourly 5 worker would have those. I would say that those 6 should have been requested, if they exist, and I 7 don't think it's my responsibility to ask for them, 8 if they do exist. 9 Q. Okay. 10 A. I do believe that an hourly worker who is 11 working in a dangerous trade and is participating in 12 safety meetings and is provided safety manuals from 13 the company has some responsibility to look at those 14 and to understand the materials that he is provided. 15 Q. Right. 16 A. If he's not provided them, then I think 17 there's a lapse on the employer's part. 18 Q. Okay. Let me object to responsiveness. 19 Would it be a lapse on the employer's part file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (217 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 if any of the materials that they provided their 21 riggers and barge workers didn't mention any hazard 22 with regard to benzene - 23 MR. MARTINGANO: Objection to form. 24 Q. (BY MR. BROWN) -- by the 1970s? 25 A. That's a trick question. Assuming there was NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (218 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 110 1 benzene supplied, then you might have a different 2 answer. 3 Q. Well - 4 A. If I don't provide benzene to my workers in 5 the field, I'm not sure that I have an obligation to 6 warn them about the safe handling of benzene. 7 Q. Did you read the affidavit of Mr. Clayton 8 Williams, sir? 9 A. (Examining document.) Yes. 10 Q. All right. Read the highlighted portion 11 there, if you would, please. 12 A. "The crew members, including Mr. Clark, 13 would wash their hands, tools, and clothes in benzene 14 on a daily basis. Benzene came from 55-gallon drums 15 on the barge." 16 Q. Do you have any personal knowledge of 17 benzene being used or not used on any of the barges 18 that Mr. Clark worked on? 19 A. No. I've seen no evidence to support the file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (219 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 presence or absence of benzene on the barge. 21 Q. And you never observed Brown & Root workers 22 doing their work during the 1970s, installing off 23 rigs out in the Gulf, cleaning the hammers, cleaning 24 the barges, and any of the solvents that they might 25 used; correct? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (220 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 111 1 A. I have not been present in those settings. 2 Q. You have not been provided with any invoices 3 or purchase data for the chemicals that they might 4 have used; correct? 5 A. I have not seen any - 6 Q. All right. 7 A. -- purchase records. 8 Q. You have not been provided with any 9 industrial hygiene monitoring data for any of the 10 chemicals that they might have used as cleaning 11 solvents; correct? 12 A. Correct. 13 Q. I mean, it -- whatever cleaning solvent they 14 used, if the law required that workers not be 15 exposed, over certain levels, to those chemicals in 16 the cleaning solvents, the employer should have been 17 monitoring for those and making sure that the 18 employees were not being overexposed; correct? 19 MR. MARTINGANO: Objection to form. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (221 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 THE WITNESS: I agree with the law, however 21 it's actually stated, yes. 22 Q. (BY MR. BROWN) All right. If -- and if - 23 the law -- do you have an understanding that the law 24 requires that monitoring records be kept for 30 25 years? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (222 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 112 1 MR. MARTINGANO: Objection to form. 2 THE WITNESS: I'm not familiar with the 3 specifics of the law, but that makes sense. 4 Q. (BY MR. BROWN) All right. Well, if the law 5 requires it, then the records from the seventies 6 ought to still be around; correct? 7 MR. MARTINGANO: Objection to form. 8 THE WITNESS: Depending on how late in the 9 seventies. The principle is correct. I'm just 10 challenging your math. 11 Q. (BY MR. BROWN) Have you seen the affidavit 12 of Mr. McGinnis, that we've marked as Exhibit 4? 13 A. Yes, I have. 14 Q. What does he say in the highlighted portion 15 there? 16 A. The same: "While working for Brown & Root 17 with Aubrey Clark in the 1970s, we used benzene to 18 clean our hands, tools, gloves, clothing and 19 equipment. We were provided the benzene by file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (223 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Brown & Root, and the benzene was in barrel racks on 21 the barge. We used the benzene on a routine, daily 22 basis for several years." 23 Q. And you read Mr. Clark's testimony, where he 24 used benzene from the time that he began out there, 25 in either late '71 or '72, through the late NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (224 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 113 1 seventies, around '77 time period, where he used 2 benzene on a frequent, regular basis to spray off the 3 lubricating oils from the hammers and to clean off 4 the barges with it and to clean their hands and 5 tools? You read all that; correct? 6 THE WITNESS: I've read that. 7 MR. MARTINGANO: Objection to form. 8 THE WITNESS: I've read it, and that's 9 essentially what he says. 10 Q. (BY MR. BROWN) Do you consider that to be no 11 evidence of exposure? Just because it's some man's 12 sworn testimony, do you say it's no evidence? 13 MR. MARTINGANO: Objection to form. 14 THE WITNESS: I was referring to evidence as 15 documentation. I think that - 16 Q. (BY MR. BROWN) Well, that's not the word - 17 excuse me. That's not the word you used. You used 18 evidence. You didn't say there's no documentation. 19 You said there's no evidence. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (225 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. And now I'm defining what I mean by 21 evidence. 22 Q. Okay. 23 A. Certainly, these gentlemen's testimony is 24 evidence. It's what we have because -- and have to 25 rely upon, if it's believable, because we don't have NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (226 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 114 1 more concrete, typical evidence of exposure, such as 2 the records, the types of records we discussed 3 earlier. 4 Q. Well, do you have any reason to dispute the 5 testimony of Mr. McGinnis, Mr. Williams, Mr. Clark, 6 and the other coworkers who have testified that they 7 all used benzene out there when they were working on 8 those barges in the seventies? 9 MR. MARTINGANO: Objection to form. 10 THE WITNESS: Well, I'm not sure that I've 11 seen all other employees, as you've referred to. 12 And I recall there's another employee of 13 Brown & Root, testifies that there was no 14 benzene. I agree that all three state 15 essentially the same position, with essentially 16 the same language. I have a hard time finding it 17 particularly credible, given the evidence I was 18 also provided in the Brown & Root safety manuals, 19 talking about the use of solvents with low flash file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (227 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 points. 21 Q. (BY MR. BROWN) All right. Well, let me 22 object to responsiveness. 23 You're saying you don't believe what they're 24 saying; is that right? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (228 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 115 1 THE WITNESS: Excuse me. I believe your 2 question was, Do I have any reason to not 3 believe? And I do have reason not to believe. 4 One is, they have recited a similar statement, 5 yet they have not been able to describe what 6 other chemicals are there. They've not been able 7 to tell what it was replaced with. There is a 8 particular focus on this one thing, and from an 9 epidemiological perspective, it's not unusual. 10 There are studies that document responses, 11 in scientific studies, where no one intends to be 12 biased, answers are given from a particular 13 perspective, that is -- may or may not be 14 representative of what actually happened. 15 In case control studies, there's a thing 16 call reporting bias. People who have been 17 diagnosed with specific diseases tend to either 18 recall better or overrecall, relative to the 19 comparison group, certain exposures. Not that file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (229 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 it's intentional. It's human nature. 21 There are studies that show that even 22 studies of people involved in litigation 23 overreport or don't reliably report what has 24 occurred. 25 So, taking my understanding of how people NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (230 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 116 1 provide information for research purposes, I can 2 see that there's some parallels with the 3 testimony that these gentlemen provide. And it 4 causes me, in light of the other testimony, of 5 the other employee, and the documents that would 6 preclude the use of this type of exposure or this 7 type of solvent in such settings, for me, cause 8 me to doubt the truthfulness of that testimony. 9 Q. (BY MR. BROWN) All right. Let me object to 10 responsive. 11 Sir, do you believe Mr. Clark and his 12 coworkers when they say they were exposed to benzene 13 or not? 14 MR. MARTINGANO: Objection to form. 15 THE WITNESS: Could you repeat that? 16 Q. (BY MR. BROWN) Do you believe Mr. Clark and 17 his coworkers when they say they were exposed to 18 benzene while working for Brown & Root in the 1970s? 19 MR. MARTINGANO: Objection to form. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (231 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 THE WITNESS: I find it difficult to believe 21 that they would use benzene in the ways they have 22 described - 23 Q. (BY MR. BROWN) So you don't believe - 24 A. -- in such quantities and spraying about the 25 deck of the barge. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (232 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 117 1 Q. You don't believe them, and that's what your 2 testimony is to the jury; correct? 3 MR. MARTINGANO: Objection to form. 4 THE WITNESS: I'm saying that the way that 5 they have described the use of a solvent, and 6 they, in other places, in deposition, have stated 7 that, yes, they may have used other solvents, 8 they may have used diesel, that I think that 9 there's more information that should have been 10 made available, should have come out from these 11 gentlemen, about the variety of chemical 12 substances they used. 13 Q. (BY MR. BROWN) Well, let me object to 14 responsiveness. 15 My question is -- can you answer for the 16 jury with a simple yes or no answer? -- do you 17 believe these fellows when they say they were exposed 18 to benzene or not? 19 MR. MARTINGANO: Objection to form. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (233 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 THE WITNESS: I find it implausible that 21 they could have used benzene the way they have 22 described it. 23 Q. (BY MR. BROWN) All right. You're not a 24 human lie detector, are you, sir? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (234 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 118 I Q. (BY MR. BROWN) You're not - 2 A. Is that a serious question? 3 Q. That is a serious question. This is a 4 serious case, and what my point is, is you're not - 5 you don't have any better ability to evaluate, as an 6 expert or anybody else, whether somebody is telling 7 the truth than the jury; correct? 8 MR. MARTINGANO: Objection to form. Darren, 9 I think he's answered your question, and because 10 he has, I think you've asked it three or four II different times the same way; he's answered it 12 the same way. I think you just need to move on. 13 Q. (BY MR. BROWN) Sir, you're not in any better 14 position to evaluate whether these people are telling 15 the truth than the jury, are you? 16 MR. MARTINGANO: Objection to form. 17 THE WITNESS: What I've said is that I don't 18 find the testimony plausible, as stated, based on 19 my understanding of the explosiveness, the file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (235 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 volatility of benzene, and the ways that they've 21 described using it around welding. 22 Q. (BY MR. BROWN) Okay. 23 A. This is not -- I'm not testifying as to 24 whether or not they lied. I find that portion of the 25 testimony incomplete and unreliable, for purposes NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (236 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 119 1 that it's being used. 2 Q. Well, let me object to responsiveness. 3 Bottom line is, you don't agree with them. 4 That's okay. I mean, I'm not asking you to agree 5 with them. But my question was, you are in no better 6 position to evaluate whether these gentlemen are 7 telling the truth or not telling the truth than the 8 jury would be in this case? You're not an expert on 9 whether somebody's telling the truth or not, are you, 10 sir? 11 MR. MARTINGANO: Objection to form. 12 THE WITNESS: I'm not commenting on whether 13 or not they're telling the truth. 14 Q. (BY MR. BROWN) All right. You're not an 15 expert on whether somebody is telling the truth; 16 correct? 17 MR. MARTINGANO: Objection to form. 18 THE WITNESS: In general, no. If somebody 19 tells me something that's implausible, I don't file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (237 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 need to be an expert on whether or not they're 21 lying or telling the truth. 22 Q. (BY MR. BROWN) Do you think you could tell 23 better than the people who would sit on this jury 24 whether these people are lying or telling the truth? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (238 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 120 1 THE WITNESS: I have no concept of who the 2 jury might be made up of. 3 Q. (BY MR. BROWN) Do you have any - 4 A. If people who have handled benzene around 5 ignition sources understand the situation, then they 6 may well agree with my understanding, from an 7 occupational health and safety perspective. 8 Q. Let me object to responsiveness. 9 My question is simple: Do you think you're 10 in a better position to evaluate whether these people 11 are being truthful or not than the jury, as an 12 expert, on whether somebody's telling the truth or 13 not? 14 MR. MARTINGANO: Objection to form. 15 THE WITNESS: I can't answer that. 16 Q. (BY MR. BROWN) Okay. 17 A. It's - 18 Q. Fair enough. 19 A. It's not a question that has anything to do file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (239 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 with my answer. 21 Q. In the field - 22 A. And my opinion. 23 Q. In the field of epidemiology, they don't 24 train you to determine whether or not somebody's 25 providing you with truthful information, do they? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (240 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 121 I A. Perhaps - 2 MR. MARTINGANO: Objection to form. 3 THE WITNESS: -- I wasted an earlier answer. 4 I said, in epidemiology, we are very interested 5 in the quality and the validity of the 6 information that we obtain, and we go through 7 painstaking procedures to prevent bias from 8 occurring in information. I'm applying these 9 principles to the setting, and it strikes me that 10 there's room for bias in these responses. II Q. (BY MR. BROWN) Well, let me object to 12 responsiveness again. 13 Sir, in your epidemiological training, did 14 they have a class on how to tell if somebody's lying 15 or telling the truth? 16 A. No. 17 Q. All right. Do you have any studies that 18 would -- you could point to to say, "Here's a study 19 that is peer-reviewed, published, that shows that file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (241 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 George McGinnis and Clayton Williams and Mr." - 21 MR. MARTINGANO: Objection. 22 Q. (BY MR. BROWN) -- "Clark are lying"? 23 MR. MARTINGANO: Objection to form. Darren, 24 I think you've asked this question over and over. 25 And, I mean, to ask an epidemiologist study about NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (242 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 122 1 what two guys in a case said? Let's just move 2 on. 3 THE WITNESS: Of course not. 4 Q. (BY MR. BROWN) Sir, have you - 5 A. Of course not. 6 Q. Do you have a study that you think has any 7 bearing on what these people say they used out there, 8 that you're going to show in front of a jury, that, 9 "Here's a study that I'm going to use to support my 10 opinion that what these guys are saying is not true"? 11 MR. MARTINGANO: Objection to form. 12 THE WITNESS: I'm sorry. It seems like a 13 number of negatives. Can you state the question 14 in a positive? 15 Q. (BY MR. BROWN) Sorry. Yes. Do you have a 16 study that you will present to a jury, that says, 17 "Here's a study that supports my opinion that what 18 all these fellow are saying -- Mr. McGinnis, 19 Mr. Clark, and Mr. Williams -- about benzene exposure file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (243 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 is not true"? 21 MR. MARTINGANO: Objection to form. 22 THE WITNESS: No. I think what I would 23 point to are the safety manuals that point out 24 the serious risks of using benzene in that way. 25 Q. (BY MR. BROWN) Can you pull out the safety NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (244 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 123 1 manual and show me where it is mentioned in the 2 safety manuals that you looked at and reviewed, 3 exposures to benzene are dangerous or exposures to 4 benzene are harmful or that they should not use 5 benzene for any purpose while they're out there on 6 the barge? 7 MR. MARTINGANO: Objection to form. 8 THE WITNESS: Not specifically. No. That's 9 not what I said, but no, I can't do that. 10 Q. (BY MR. BROWN) Can you point, in the safety 11 manual that you referred to, where benzene is 12 mentioned one time? 13 A. I recall that the flash point for benzene is 14 published in that manual. 15 Q. All right. Can you show me that? 16 A. No. It's here. (Indicating.) 17 Q. It's on that disk? You know, well, that's 18 the problem with getting stuff in electronic form. 19 We can't look at it right now. But it's your file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (245 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 testimony that benzene was mentioned and the flash 21 point of benzene was given; is that right? 22 MR. MARTINGANO: Objection to form. 23 THE WITNESS: I recall so. 24 Q. (BY MR. BROWN) All right. Which safety 25 manual was it? Which version? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (246 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 124 1 A. I don't recall. 2 Q. Was there anything about benzene, other than 3 its flash point, that you recall? 4 A. I don't recall any, no. 5 Q. Was there anything about benzene being a 6 carcinogen? 7 A. Not that I recall. 8 Q. And had there been a reference to benzene 9 being a carcinogen, don't you think you would have 10 remembered that, had you seen it? 11 A. Not necessarily. And that's not the place I 12 would go to find authoritative source on whether 13 benzene was a carcinogenic. It was also well14 established before I ever looked at the health and 15 safety manuals. 16 Q. Well, I understand that, but you're saying 17 you used the safety manual to -- as a way that you 18 think that benzene was not being used. And the only 19 reference to benzene that you can recall, as you sit file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (247 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 here, is that the flash point of benzene was given. 21 There was no mention of benzene, at least to your 22 recollection, that it was a cancer hazard; right? 23 MR. MARTINGANO: Objection to form. 24 THE WITNESS: I think that's a fair 25 representation. The reason I raised it and point NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (248 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 125 1 to the safety manual is specifically for the 2 extreme hazard of explosion. I think if it's not 3 used in settings where explosion is possible, 4 then the rest is moot. 5 Q. (BY MR. BROWN) All right. So is it your 6 testimony that industry didn't use flammables as 7 solvents to clean with, in the 1970s? 8 A. I have never said that. 9 Q. Do you know naphthas were used in the 10 sixties and seventies, and even in eighties, as 11 solvents to clean with? 12 A. Correct. And - 13 Q. You know naphthas are flammable? 14 A. -- one of the witnesses testified he used 15 diesel, obviously a flammable. 16 Q. All right. So you recognize that flammables 17 were used as a cleaning solvent by that industry in 18 the sixties and seventies; correct? 19 MR. MARTINGANO: Objection to form. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (249 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 THE WITNESS: Solvents were used, yes. 21 Q. (BY MR. BROWN) And solvents - 22 A. And many solvents are flammable and have 23 flash points of different -- at different levels. 24 Q. And... All right. The bottom line is that 25 there's nothing you know, of your personal knowledge NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (250 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 126 1 or any documents that you've seen, that would 2 contradict anything that these gentlemen have said 3 about their benzene exposures; correct? 4 MR. MARTINGANO: Objection to form. 5 THE WITNESS: I think if you substitute in 6 solvents -- because I'm not sure that anyone 7 knows exactly what substances were used -- then I 8 would have an easier time accepting those 9 statements. 10 Q. (BY MR. BROWN) But they used benzene. And 11 you don't have anything, of your own personal 12 knowledge, because you weren't there, you haven't 13 evaluated their work programs, to say, "These 14 gentlemen are wrong about that" -- you can't say that 15 of your personal knowledge; correct? 16 MR. MARTINGANO: Objection to form. 17 THE WITNESS: I was unable to observe any of 18 these processes on the boat, so - 19 Q. (BY MR. BROWN) You haven't observed file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (251 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Brown & Root workers; you haven't observed any 21 maritime workers doing this kind of work; correct? 22 A. That's correct. 23 Q. All right. And you don't -- you have not 24 seen any documents that would prove this, that this 25 was not benzene? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (252 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 127 1 A. Or that it was. Exactly. I have -- I share 2 that concern. 3 Q. So, basically, what you have to do is, you 4 know, as a paid expert by Brown & Root's lawyers in 5 this case, you come to opinion that these guys are 6 wrong about what they say they used to clean up with; 7 correct? 8 MR. MARTINGANO: Objection to form. 9 THE WITNESS: Well, I didn't say that. 10 And what I come to the table with is an 11 epidemiologist, regardless of who hires me. And 12 what I say is that I evaluate information as 13 provided. If this were information provided for 14 an epidemiological study, I would have serious 15 reasons for doubting the conclusions of that 16 study. 17 Q. (BY MR. BROWN) Okay. Let me object to the 18 responsiveness of the last question. 19 Have you evaluated the occurrence of AML in file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (253 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 the U.!S. population? 21 A. Yes. 22 Q. And what is it? 23 A. As it says in the report, there will be, in 24 2004 [sic], an expected 13,000 new cases. 25 Q. All right. Well, we're past 2004, so -- NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (254 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 128 1 A. I'm sorry. -7. I misspoke. It says 2007 2 in the report. 3 Q. Okay. So, I mean, what's the total expected 4 leukemia, AMLs, in the United States in 2007? 5 A. 44,000 new leukemia cases expected to be 6 diagnosed in 2007. 7 Q. How many of those are AMLs? 8 A. It's expected about 13,410 new cases of AML. 9 Q. And where did you get that information? 10 A. From the -- there's a reference at the 11 bottom of the page. I believe that's the American 12 Cancer Society. Here it is. (Handing document.) 13 MR. MARTINGANO: And, Darren, just -14 MR. BROWN: And this is your notebook over 15 there? 16 MR. MARTINGANO: Right, as Exhibit 13. 17 MR. BROWN: Exhibit 13, okay. 18 Q. (BY MR. BROWN) All right. When we list the 19 risk factors, you said benzene, radiation, file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (255 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 chemotherapy, and that was all you mentioned in terms 21 of risk factors that were relevant for this 22 particular case; is that correct? 23 A. Yes, sir. 24 Q. All right. Do you recognize smoking as a 25 risk factor? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (256 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 129 1 A. Yes, sir. 2 Q. Do you have an opinion as to whether smoking 3 played any role in the development of Mr. Clark's 4 AML? 5 A. As I state in my report, I have chosen not 6 to offer an opinion on that, because the 7 documentation of Mr. Clark's smoking history was 8 conflicted from the very sources where it's reported. 9 Q. And what was the conflict? 10 A. We have testimony from Mr. Clark that he was 11 never a smoker or only bummed cigarettes, to a 12 medical record suggesting as much as four packs per 13 year. I mean four packs per day. Excuse me. 14 Q. All right. And you've read -- have you read 15 Dr. Natelson's deposition? 16 A. No, sir. 17 Q. All right. I'll represent to you it's 18 Dr. Natelson's opinion that smoking did not cause or 19 contribute to Mr. Clark's AML, okay. If that was file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (257 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Dr. Natelson's opinion, would you be in a position to 21 contradict that? 22 MR. MARTINGANO: Objection to form. 23 THE WITNESS: I would have to review the 24 epidemiological literature on that, because I 25 believe Dr. Natelson would be relying on NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (258 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 130 1 epidemiology as well to formulate his opinion. 2 But I also have no reason to doubt his testimony, 3 if that, in fact, is true. 4 Q. (BY MR. BROWN) All right. How much -- let 5 me ask you this: If a person had a four to -- or 6 five- to seven-pack year smoking history and had 7 cessation of a smoking history, completely, as either 8 1997 or 1998 time period, would that, in your 9 opinion, be a risk factor for that particular 10 person's AML? 11 A. It probably -- it probably would have -- the 12 risks would have attenuated with additional time 13 since quitting. Whether that itself was a sufficient 14 pack year history to increase risk, I'd have to look 15 at the epidemiological literature specifically on 16 that topic. 17 Q. Well, have you done that? 18 A. No. 19 Q. Do you have any study that you could show me file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (259 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 and the jury today that says smoking -- a smoking 21 history of five to seven pack years, with a cessation 22 of seven to eight years, would result in any doubling 23 of the risk of AML? 24 A. Not off the top of my head. 25 Q. What is the minimum level of smoking where NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (260 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 131 1 you think would be contributory to an AML? 2 A. I don't know offhand. I'm not sure it is 3 known, especially with - 4 Q. Have you done any research? 5 A. I have not researched that topic, no. 6 Q. And you have not put those into your report 7 or your opinions in this case; correct? 8 A. That's correct. I reacted to what was made 9 available, which wasn't clear enough for me to take 10 it further, so I - 11 Q. Well, what if - 12 A. -- not rendering an opinion on the smoking 13 history at all. 14 Q. You're not going to be rendering one on the 15 smoking history at trial; is that correct? 16 A. That's correct. 17 Q. Do you know the mechanism, sir, by which 18 benzene induces or causes acute myelogenous leukemia? 19 A. I'm familiar with it. I'm not a file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (261 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 toxicologist. 21 Q. Well, sir, my question is, do you know the 22 mechanism by which benzene causes acute myelogenous 23 leukemia? 24 A. No. 25 Q. And you told me earlier you read the OSHA NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (262 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 132 1 benzene standard; correct? 2 A. Well, yes. I'm familiar with it. 3 Q. All right. And, in fact, in the time they 4 published this document, "The exact mechanistic 5 interaction of benzene and its metabolites with 6 cellular DNA, which eventually leads to human cancer, 7 is not known." Do you agree with that statement? 8 A. Certainly. No reason -- let's say I don't 9 have any reason to doubt it. 10 Q. All right. That's not your area of 11 expertise anyway, is it? 12 A. Correct. 13 Q. That's the area of the expertise for our 14 toxicologist; correct? 15 A. Correct. 16 Q. And do you know who DuPont -- strike that. 17 Do you know who Brown & Root has hired as 18 its toxicologist in this case? 19 A. No, I don't. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (263 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. Dr. Collie? 21 A. No, I don't. 22 Q. Did you know she testified she does not know 23 the mechanism by which benzene causes or induces 24 acute myelogenous leukemia? 25 A. I don't know that as a fact. That seems NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (264 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 133 1 reasonable. 2 Q. Do you know the mechanism by which 3 alkylating agents, such as chemotherapeutic drugs, 4 cause AML? 5 A. No. 6 Q. Since you don't know the mechanism by which 7 benzene causes AML and you don't know the mechanism 8 by which alkylating agents cause AML, it would be 9 speculation on your part to say that they react or 10 cause AML in the same way; correct? 11 A. On my part, if -- given that I'm not an 12 expert, I probably shouldn't give such an opinion. 13 Q. And you will not be provided opinions on 14 that at trial? 15 A. I will not. I will not. 16 Q. All right. You have not done any research 17 in the epidemiological literature to -- along those 18 issues, that you feel comfortable enough to express 19 opinions with, that benzene acts the same way as file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (265 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 alkylating agents in inducing AML; is that correct? 21 MR. MARTINGANO: Objection to form. 22 THE WITNESS: I will not offer testimony on 23 mechanisms of AML. 24 Q. (BY MR. BROWN) Are you familiar with the 25 Zhang study, sir? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (266 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 134 1 A. Yes. 2 Q. And with regard to the issue of whether 3 benzene acts as an alkylating agent to induce AML in 4 a similar way, what were Zhang's conclusions? 5 A. I don't know. I don't -- may I look at it? 6 Q. Yes, sir. I'll just quickly show them to 7 you. This is what we've marked as Exhibit 9 to your 8 deposition. On page 10, he says, "there is 9 insufficient data to conclude that benzene induces 10 specific structural changes in the patients with 11 benzene-associated leukemia"; is that correct? 12 A. That's what it says, yes. 13 Q. All right. Over here, on page 36, it says, 14 "leukemias associated with benzene exposure do not 15 appear to have specific cytogenetic karyotype." Did 16 I read correctly? 17 A. You did. That's from the same document. 18 Q. All right. What does that mean: They do 19 not appear to have specific cytogenetic karyotype? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (267 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I understand that there's different 21 cytologies associated with leukemias, AMLs, and 22 characterized, I believe, Mr. Clark's was a 6-9 23 translocation, and this, referring to the 24 characterization of the cell type. 25 MR. MARTINGANO: Number 6, number 9. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (268 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 135 1 Q. (BY MR. BROWN) And what he's saying, Zhang 2 is saying here, it says, "leukemias associated with 3 benzene exposure do not appear to have a specific 4 cytogenic karyotype"; correct? 5 A. That's what it says. 6 Q. Right. Do you know anything about cell 7 types and that type of thing and what are related to 8 benzene or what would be a fingerprint or biological 9 marker to be able to say a benzene -- this is a 10 benzene-induced AML as opposed to one that's not? 11 A. I looked at what the epidemiological 12 literature could say with respect to this 6-9 13 translocation, and the epidemiology is silent on it, 14 so I have no opinion. 15 Q. All right. Finally, Zhang says, in his 16 conclusion, "At this point, however, there does not 17 appear to be a unique pattern of benzene-induced 18 chromosome abnormalities, as detected by either FISH 19 or classic cytogenetics"; correct? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (269 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. That's what it says. I can't tell you what 21 it means. 22 Q. Is it your opinion that if somebody's going 23 to have a AML that is related to benzene, there has 24 to be a loss or deletion of any certain chromosome? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (270 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 136 1 THE WITNESS: I'm not in a position to 2 render an opinion on that. I imagine it's 3 knowable, and if somebody were to comprehensively 4 review the literature, might be able to formulate 5 such an opinion. 6 Q. (BY MR. BROWN) All right. Well, let me 7 object to responsiveness. 8 My question was, do you have an opinion, you 9 yourself have an opinion that before one can opine 10 that a AML is benzene-induced, there has to be a loss 11 or deletion of any particular chromosome? 12 MR. MARTINGANO: Objection to form. 13 THE WITNESS: That's outside of my area of 14 expertise. 15 Q. (BY MR. BROWN) All right. It's outside of 16 the epidemiological research that you've done; 17 correct? 18 A. It's a mechanistic question. 19 Q. Well, even though it's a mechanistic file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (271 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 question, sometimes stuff published -- studies are 21 published based on the epidemiological gathering of 22 information. And what I'm asking you is, have you 23 done that research, epidemiologically, to form those 24 opinions? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (272 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 137 1 THE WITNESS: I believe I answered that, and 2 I did do the research, and the epidemiological 3 literature was silent with respect to this 4 cytology. 5 Q. (BY MR. BROWN) All right. As you sit here 6 today, would you say that before somebody can be 7 diagnosed with AML as being a benzene-induced AML, 8 they would have to have a loss or deletion of any 9 particular chromosome? 10 MR. MARTINGANO: Objection to form. 11 THE WITNESS: It's outside of my area of 12 expertise. 13 Q. (BY MR. BROWN) And you will not be offering 14 those opinions at trial; correct? 15 A. That's correct. 16 MR. MARTINGANO: Objection to form. 17 Q. (BY MR. BROWN) The -- you say the 18 epidemiological literature is silent. What 19 epidemiological literature have you reviewed? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (273 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. In epidemiology, we strive for specificity 21 of exposure and specificity of disease, so we 22 understand specific relationship between the two. 23 Many studies -- and studies that didn't make this 24 notebook -- may have only reported on hematopoietic 25 cancers. It doesn't help us understand any NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (274 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 138 1 relationship with an AML. Within AML there's 2 movement toward greater specificity, because we know 3 it's a collection of diseases that probably have 4 different etiologies, different causes. 5 The epidemiology is now evolving in this 6 area, where the technology that allows us to separate 7 the different cytogenetic types and groups can be 8 compared on the basis of their risk factors. 9 A lot of that's being done for purposes of 10 treatment, you know, what's -- what will be or might 11 be an effective treatment for a specific subtype. 12 But when I said the epidemiology is silent on it, 13 there is no epidemiology that says that this specific 14 translocation is associated with a specific risk 15 factor or not, including benzene. 16 Q. Let me object to responsiveness. 17 What specific translocation are you 18 referring to? 19 A. The 6-9. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (275 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. All right. Is there any epidemiologic 21 literature that shows any other chromosome aberration 22 of any other numbered chromosome, that you'd think is 23 sufficient so that you could have a diagnosis of 24 benzene-induced leukemia? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (276 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 139 1 THE WITNESS: I haven't looked specifically 2 at that, no. 3 Q. (BY MR. BROWN) Can you pull out a study 4 of -- out of Exhibit 13 that says, before a leukemia 5 can be related to benzene exposure, there has to be 6 chromosomal damage to any particular chromosome? 7 MR. MARTINGANO: Objection to form. 8 THE WITNESS: I wouldn't expect that kind of 9 statement in epidemiological studies. It's 10 really an observational one. There may be some 11 more recent studies, where that characterization 12 is possible, but I'm not aware of one off the top 13 of my head. 14 Q. (BY MR. BROWN) Well, let me object to 15 responsiveness. 16 My question is, out of your book, notebook 17 of studies that you brought with you and relied upon 18 in forming your opinions in this case and we've 19 marked as Exhibit 13, can you pull the study out of file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (277 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 that document and show us and the jury that before 21 you can have a benzene-induced leukemia, you have to 22 have a loss or deletion of any particular chromosome? 23 MR. MARTINGANO: Objection to form. 24 THE WITNESS: I'm not aware of such studies. 25 Q. (BY MR. BROWN) Would you agree that if NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (278 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 140 1 someone were to provide an opinion that before you 2 can have an AML that's caused by exposure to benzene, 3 that you would have to have some type of 4 chromosomal -- chromosomal damage that, at least from 5 the standpoint of epidemiological literature, that 6 would be speculation? 7 MR. MARTINGANO: Objection to form. 8 THE WITNESS: Well, I think it's clear there 9 has to be some genetic damage in order for a 10 malignancy to result. Whether a specific 11 transformation is necessary or not is not within 12 my area of expertise. 13 Q. (BY MR. BROWN) Have you read any information 14 from Dr. Estey, from M.D. Anderson? 15 A. I believe so, yes. 16 Q. What did you read from him? 17 A. I believe there was some... (Examining 18 documents.) Unfortunately, this doesn't specify 19 the -- file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (279 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. MARTINGANO: And just to speed things 21 along, we didn't send anything from - 22 THE WITNESS: From the - 23 MR. MARTINGANO: -- Dr. Estey to - 24 MR. BROWN: Okay. 25 MR. MARTINGANO: -- Dr. Mundt. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (280 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 141 1 Q. (BY MR. BROWN) Let me just read you this. 2 And I don't know if I'm -- I want to make sure I 3 cover it. I think this will do it. This is the 4 deposition of Dr. Deborah Thomas, the physician 5 who -- oncologist, the cancer specialist whose job it 6 is to try to save this man's life. 7 She was asked this question in her 8 deposition last week by Mr. Martingano: It says, 9 "Dr. Estey has gone through some of the epidemiology 10 associated with AML, and in that, he stated, he says, 11 'AML associated with benzene exposure, cytotoxic 12 chemotherapy, are characterized by aberrations of 13 chromosomes 5 or 7 or both.'" Did I read that 14 correctly? 15 A. Yes. 16 Q. Had you seen that information anywhere in 17 the literature you reviewed? 18 A. I believe so, yes. 19 Q. Do you agree that -- is it your opinionthat file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (281 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 you have to have a chromosomal aberration of 5 or 7 21 or both before there can be a benzene-induced 22 leukemia? 23 A. I think I've tried to tell you that I 24 haven't examined that. 25 Q. All right. And -- NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (282 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 142 1 A. So I can't say that there should be a 2 particular cytologic -- cytotoxic -- I mean cytogenic 3 change or not. 4 Q. Have - 5 A. It's something Ihave not researched. 6 Q. No one from Brown & Root or its lawyers 7 asked you to look at; is that correct? 8 MR. MARTINGANO: Objection to form. 9 THE WITNESS: I was asked to review the 10 materials in this case as they pertained to 11 epidemiology. 12 Q. (BY MR. BROWN) Did any - 13 A. I looked at the epidemiology on the specific 14 transformation in this case and didn't find there was 15 an epidemiological direct link, or there was no 16 epidemiological evidence. 17 Q. Of a direct link that, before you can say 18 it's been benzene-induced AML, you have to have these 19 deletions? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (283 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. There was no evidence. I said earlier it 21 was silent on this topic. 22 Q. All right. Do you know where Dr. Estey 23 is getting -- at least as represented by 24 Mr. Martingano -- these epidemiologic associations? 25 A. I don't know whether -- I don't know what NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (284 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 143 1 the sources are. 2 Q. All right. You haven't looked at those same 3 sources, then, I take it? 4 A. It's possible. I didn't look at them for 5 this reason. I'm not trying to elucidate the 6 mechanisms. 7 Q. In any event, even after Mr. Martingano 8 asked this question, her answer was: "Yes. But it's 9 not exclusive. What that means is it's not 10 exclusive, meaning that you can have AML that's 11 related to a chemical exposure and not have those 12 cytogenic abnormalities." Did I read that correctly? 13 A. Yes, you did. 14 Q. Do you agree with that? 15 MR. MARTINGANO: Objection. 16 THE WITNESS: It seems reasonable. Again, 17 it's not my area of expertise. I have not 18 evaluated that specifically, so I can't really 19 comment on these things. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (285 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. (BY MR. BROWN) All right. Do you know 21 Dr. Richard Irons? 22 A. No, sir. 23 Q. Never seen his work in the area of benzene 24 and leukemia, Chinese studies that he's working on 25 now? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (286 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 144 1 A. I can check my list, but it doesn't ring a 2 bell. You said it was in the Chinese section? 3 Q. Currently, he's -- it's my understanding 4 he's doing some work over in China, benzene-related 5 illnesses. 6 A. Unless he's further down on the author list 7 of these, then I have not looked at his epidemiology 8 work. 9 MR. MARTINGANO: Well, and, Darren, I don't 10 even know if that's published yet. 11 MR. BROWN: Some of it is; some of it's not. 12 Q. (BY MR. BROWN) I'll represent to you I asked 13 him this question in another case. 14 A. Excuse me. Asked who? 15 Q. Dr. Richard Irons. 16 A. Irons. 17 Q. He's a toxicologist that's often hired by 18 defense companies and defense lawyers in this type of 19 litigation and who, some would say, is the authority file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (287 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 on this issue, from the defendant standpoint. 21 A. He is a toxicologist, you said? 22 Q. He holds himself as a -- out as a 23 toxicologist, yes. I asked him, "Is it your opinion, 24 sir, that in order for there to be an AML that would 25 be benzene-related, there would always be a loss or NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (288 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 145 1 deletion of chromosome 5 or 7?" 2 And his answer was what? 3 A. "No." 4 Q. "That doesn't have to be necessary. You 5 don't have to see a loss or deletion of 5 or 7 in 6 order for somebody to say this benzene -- this is a 7 benzene AML, is benzene-related; correct?" 8 "That's correct. That's never been my 9 opinion." 10 Did I read that correctly? 11 A. Yes, you did. 12 Q. Do you agree with that, sir? 13 MR. MARTINGANO: Objection to form. 14 THE WITNESS: I have no basis to agree or 15 disagree with you. 16 Q. (BY MR. BROWN) Okay. All right. You 17 referenced the Pliofilm cohort in your study, on page 18 4. Do you see that? Or actually, I guess it would 19 have been your sister who made that reference. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (289 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. No. I represent and take responsibility for 21 whatever is stated here, regardless of where it came 22 from. Most of these are statements from the 23 literature. So you might credit Infante or Rinsky. 24 Q. Do you recognize the Pliofilm study as - 25 and what would be -- let me just say it this way: NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (290 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 146 1 OSHA has referred to the Pliofilm study as an 2 excellent study and definitive in nature, probably 3 more so than any other study on benzene workers. 4 Would you agree with that statement? 5 A. I agree it's relative. 6 Q. What do you mean, it's relative? 7 A. Relative to all that's available. 8 Q. Right. 9 A. It's the best that we have. Independently, 10 we might not say that a study with seven individuals 11 with a disease is a definitive study, today. I 12 think, historically, it was the best that was 13 available at the time. 14 Q. All right. It's the best we have even 15 today, correct, with regard to benzene-exposed 16 populations and ability to characterize their 17 exposure and everything else, according to some; 18 correct? 19 A. That's right. I think that they're -- file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (291 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. How about in your opinion: Is there any 21 study that's better than the Pliofilm study in trying 22 to determine whether -- what benzene illnesses are 23 caused by exposure to benzene? 24 A. The advantage of this Pliofilm study is that 25 there were actual measurements and efforts made to NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (292 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 147 1 quantify the exposures and to relate that to the 2 risks of disease, so that comes closest, I think, to 3 satisfying the definition of an epidemiological 4 study. 5 Q. All right. 6 A. Unfortunately, we don't have those kinds 7 of -- that kind of exposure information in other 8 settings, where such exposures had occurred, but, 9 fortunately, such exposures no longer occur. 10 Q. All right. Let me object to the 11 nonresponsive portions of the answer. 12 I'm just trying to get your idea on what - 13 what do you feel about the quality of the Pliofilm 14 cohort study? 15 MR. MARTINGANO: Objection, form. 16 THE WITNESS: It's relative. Given all 17 that's available to us, epidemiologically, it's 18 among the best we have. 19 Q. (BY MR. BROWN) All right. Can you think of file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (293 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 any that you would say is better? 21 A. No. We have -- I'm unaware of other studies 22 where nearly no other substances were present and 23 where there were reasonable estimates of these high 24 exposures, these employees were exposed. 25 Q. All right. What are your opinions, sir, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (294 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 148 1 with regard to the latency of the development of AML 2 from exposures to benzene? 3 A. Well, as I represented in the report, there 4 were four AMLs cases in the first study, and their 5 average was 16 years. It's difficult to estimate 6 that latency from these studies, because they used 7 mortality as the endpoint rather than the incidence 8 of the disease. And because AMLs may not be rapidly 9 and universally fatal, a lot of time is added to that 10 estimation. So we don't really know what the latency 11 is. 12 We do know, from other risk factors, like 13 radiation and chemotherapy, that the latencies are 14 relatively short relative to cancers of other tissues 15 that produce solid tumors. 16 Q. Well, let me object to responsiveness. 17 My question was, what is your opinion with 18 regard to the latency period that is required between 19 onset of AML and exposure to the disease? Do you file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (295 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 have any opinion - 21 A. That makes no sense. I'm sorry. I think 22 you misspoke. 23 Q. Well, let me ask - 24 A. Onset of AML and the exposure to the 25 disease? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (296 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 149 1 Q. Let me ask you, what are your opinions, sir, 2 with regard to minimal, maximum, average latencies 3 between the -- the time period that exists between 4 exposure to benzene and the onset of AML? 5 A. Thank you. That's rendered here as well. 6 There are frequent references in the literature that 7 it's in the vicinity of five to 15 years, and it may 8 be - 9 Q. Where are you getting that in the 10 literature? 11 A. Well, first of all, represented that the - 12 in the Pliofilm cohort itself, which is based on 13 mortality, not incidence. There is a range from - 14 actually, some of the individuals were not exposed in 15 this cohort, so I don't know how to estimate their 16 latency when they were not exposed. But those that 17 were, the average was 16, and the maximum was 21 18 until death. So from that, you could say, let's be 19 conservative and say, well, maybe that that was file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (297 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 sudden onset and rapid death; the maximum would be 21 21. 22 From other exposures -- and the way I have 23 to formulate an opinion on this, because of the lack 24 of good, direct evidence of latency, is by applying 25 what is the latency when there are other carcinogens, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (298 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 150 1 like ionizing radiation or the chemotherapeutic 2 agents. And in those cases, they might be as low as 3 one or two or three years. 4 And so I look at it and say, reasonably and 5 conservatively, maybe it's five to 15, allowing for 6 some that are shorter and some that are longer. 7 Q. Well, let me object to the nonresponsive 8 portions of the answer with regard to latencies of 9 any agent other than benzene, because the question 10 was only related to benzene. 11 Now I'll ask you, sir: You don't have any 12 evidence or any studies that support the proposition 13 that a latency that results -- that an exposure to 14 ionizing radiation that results in AML and its 15 latency period is similar to the latency period that 16 is -- results from exposure to benzene, that results 17 in AML; correct? 18 A. I disagree. I think that we might agree 19 that the mechanism by which those malignancies are file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (299 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 initiated could be quite different. But because we 21 don't have any other evidence, it's reasonable to use 22 these conditions, once induced, to determine a 23 reasonable latency. 24 Q. All right. Again, I need to object to 25 responsiveness. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (300 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 151 1 Do you know the mechanism by which radiation 2 causes AML? 3 A. No. I've answered that. I think -- I'm 4 not -- well, my answer is, I'm not addressing any 5 mechanistic stuff. 6 Q. Okay. 7 A. Given that it's induced, we can then 8 epidemiologically observe what the latency is. 9 Q. And -- but do -- you would assume -- or I 10 think you have assumed and told us that their 11 mechanism may be different, between radiation and 12 benzene; correct? 13 A. It's likely different. 14 Q. And because they're likely different, then 15 it's likely that they could have a different latency 16 period; correct? 17 A. I'd say it's possible that they could have a 18 different latency. 19 Q. But the bottom line is, you don't know if file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (301 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 it's possible or impossible or probable or whatever, 21 because that's not your area of expertise; correct? 22 MR. MARTINGANO: Objection to form. 23 THE WITNESS: I'm sorry. Determining 24 latencies is specifically an epidemiological 25 phenomenon. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (302 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 152 1 Q. (BY MR. BROWN) Well, let me object to the 2 responsiveness. 3 My question was relating to mechanisms of 4 latencies caused by one toxic agent as equating to 5 latencies caused by benzene. 6 A. I've never commented on specific mechanisms, 7 and I've told you repeatedly that I don't intend to 8 comment on specific mechanisms. But given that a 9 cancer is induced, the latency can be observed. And 10 it's reasonable to equate these in -- lacking other 11 information. 12 Q. Where are your studies that says it's 13 reasonable to equate a latency from a radiation14 induced leukemia to a latency from a benzene-induced 15 leukemia? 16 A. That's my professional opinion as an 17 epidemiologist. 18 Q. That - 19 A. We equate, we find latencies for other file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (303 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 cancers, that have -- likely to have different 21 mechanisms -- have overlapping or reasonably, you 22 know, ballpark type latencies. 23 Q. Well, let me object to responsiveness. 24 You say that's your opinion. I asked you, 25 where are your studies that support that opinion? Do NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (304 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 153 1 you have any with you? 2 A. I don't know that there is a study that 3 compares latencies -4 Q. So -5 A. -- based on different mechanisms of 6 induction. 7 Q. So this idea or hypothesis that you have, 8 that it's reasonable to compare latencies from a 9 radiation-induced AML to a benzene-induced AML is 10 generally what you say; correct? 11 MR. MARTINGANO: Objection to form. 12 Q. (BY MR. BROWN) That's your own opinion, and 13 there's -- it's not based on any studies that you're 14 able to show us today; correct? 15 MR. MARTINGANO: Objection to form. 16 THE WITNESS: I have really have no idea 17 what your question was. It was a bit convoluted. 18 What we know from looking at latencies, for 19 known risk factors and benzene -- I mean known file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (305 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 risk factors in AML, is they're all around the 21 same. There's no reason to believe that because 22 a mechanism might be different, that this is a 23 mere coincidence. They are all typically much 24 shorter than that of solid tumors. And we do the 25 same thing there. It's just -- NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (306 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 154 1 Q. (BY MR. BROWN) Let me object as to 2 responsiveness, again. 3 Aside from your opinion and what your 4 personal belief is, can you offer us any 5 peer-reviewed, scientific, empirical data that shows 6 that latencies from radiation-induced leukemia is the 7 same as benzene-induced leukemias? 8 A. I'm not aware of such information, nor have 9 I looked for it. 10 Q. Do you have any peer-reviewed, scientific, 11 empirical data upon which you base your opinion that 12 they're the same? 13 MR. MARTINGANO: Objection to form. 14 THE WITNESS: Let's say I've described the 15 method by which I've arrived at that conclusion. 16 Whether I can point today to those specific 17 papers, I'll say no, I can't. But I will, and I 18 believe that if you ask if I were -- would have 19 it contained in here, all opinions, that may be file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (307 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 an area worth looking into further, comparability 21 of the latencies. 22 Q. (BY MR. BROWN) I object to the 23 responsiveness. 24 The Pliofilm study, you've stated that there 25 was an average of 16 years, but that's not really how NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (308 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 155 1 latencies go. Really, it's more like a distribution 2 occurred; correct? Some period -- people develop 3 AMLs in a shorter period, after exposure to benzene, 4 than others; correct? 5 A. Yes. And average is usually the summary 6 measure we use for distributions. 7 Q. If you'll look at Exhibit 6, you know, you 8 said in your report that the longest period was 21 9 years. I'm looking at table 4 of the benzene and 10 leukemia and epidemiological risk assessment 11 published April 23rd of '87 in the New England 12 Journal of Medicine, and it shows the latency period 13 of -- for one AML at 37 years. Do you see that? 14 A. Yes. 15 Q. Can you explain why your report only has 21 16 years as the longest? 17 A. This is a different report. This is 18 Rinsky's, with follow-up. And because they have used 19 mortality, you're going to expect much longer file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (309 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 latencies. This is not really what we talked about, 21 or as you even defined as latency, which was the 22 first possible exposure to the onset of the disease. 23 Q. What is your definition of latency? 24 A. I just said it: It's from the -- that's - 25 maximum latency is from the first possible NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (310 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 156 1 exposure -- let's assume the first day on the job, 2 somebody was exposed -- to the onset of the disease. 3 Had that exposure that gave rise to the disease 4 occurred any time later, the actual latency is going 5 to be shorter. 6 So, on average, the maximum latency, in this 7 cohort, using mortality, in the first report, of '77, 8 was 16 years. 9 If you keep following that group as long as 10 some of them survive, the latency will change. It's 11 not a concrete; it's a relative phenomena. So if 12 these same people -- well, they died. If you have 13 other cases that survive, then how can you calculate 14 their latency 'til death? It gets longer and longer. 15 It's just a technical - 16 Q. Well, let me object to the responsiveness. 17 My question is, what is your definition of 18 latency? 19 A. I've given it. It's from the point of first file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (311 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 exposure to the diagnosis of the disease. 21 Q. All right. Then why did somebody write in 22 your report, "It should be noted that the author's 23 interpretation of latency, as the time from first 24 exposure to death, is not typical"? 25 A. That's correct. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (312 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 157 1 Q. All right. 2 A. That makes it impossible to interpret, and 3 it makes it difficult to ask your earlier question - 4 answer your - 5 Q. All right. But this is the same study which 6 you were saying was, relatively speaking, the best 7 study that we have on benzene-exposed populations; 8 correct? 9 MR. MARTINGANO: Objection to form. 10 Q. (BY MR. BROWN) Is that correct? 11 A. Right, right. And I said that latencies are 12 going to all be overestimated because of the way they 13 did it. It's not typical. It's what you read from 14 my report. 15 Q. And then, here again in the 2002 follow-up 16 of the same cohort, we have latencies of 45 years, 27 17 years, 40 years, 58 years, and then the last myeloid 18 leukemia, 51 years. Do you see that? 19 A. Again, as they've defined it, that's what file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (313 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 you'd expect. It doesn't help us understand the 21 latency as I define it and as the field intends to 22 use it. 23 MR. MARTINGANO: What exhibit is that, 24 Darren? 25 MR. BROWN: That's Exhibit 7. I'm sorry. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (314 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 158 1 Q. (BY MR. BROWN) And are you familiar with the 2 Hayes study - 3 A. Yes. 4 Q. -- which finds latencies as far as 40 years 5 between initial exposure and onset of disease? 6 A. Correct. 7 Q. Any reason to dispute that? 8 A. Keep in mind that -- what latency means. I 9 have no reason to dispute what they've observed. 10 Whether you can interpret that as a representation of 11 the average time from first adequate exposure to an 12 agent and the onset of disease is in there somewhere, 13 so - 14 Q. Well, what would you consider Mr. Clark's 15 latency period to be, if you assumed he had benzene 16 exposure, as he and his coworkers testified? 17 A. Well, let's assume, as he testified, he was 18 exposed heavily between '72 and '77. I believe 19 that's a correct representation of his testimony. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (315 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Then we might allow, because of this -- his exposure, 21 by the way, as represented by Mr. Martonik, is many 22 times that of the platform workers. 23 And so one would expect relatively short 24 latency, because latency is also a function of the 25 intensity of the exposure. From first exposure -- NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (316 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 159 1 from first exposure to the exposure that might have 2 given rise to the disease comes much more quickly if 3 you're exposed every day than if your first exposure 4 isn't repeated for another year or two. So that's 5 another dimension of latency that's largely 6 underrepresented. 7 So from '72, '80, '90, '02, he's already, by 8 '02, more than 30 years out from the first heavy 9 exposure, I think was -- he was diagnosed in '05, 10 '06. So we're getting up to 35 years for a high 11 exposure group that seems to me to fall outside of 12 that distribution of latencies from exposure to onset 13 of disease. 14 Q. All right. Let me object to the 15 responsiveness. 16 It doesn't fall outside the distribution of 17 the distribution curve from the Hayes study, does it? 18 A. I -- it appears not. I'd have to look at 19 Hayes and how that was calculated and how reliable file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (317 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 the evidence of first exposure was. 21 Q. Did you look at the Shell study, the Wood 22 River study, or the Deer Park study? 23 A. Yes. 24 Q. Did you notice that one of their latencies 25 was 47 years? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (318 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 160 1 A. Well, and keep in mind that if you interpret 2 a latency, first of all, it's a maximum latency. We 3 don't know at which point in time an exposure 4 occurred that gave rise to that disease in any 5 individual. We do know that for, say, atomic bomb 6 survivors. We do know that for the clinical 7 administration of chemotherapeutic agents. Those are 8 probably closer to true latencies. 9 But with an individual, you look back and 10 say, 40 years ago he started on a job where he might 11 have used benzene, and now he's got the disease. 12 Well, you could say, if that disease were caused by 13 benzene, the latency is within that; this is the 14 maximum. 15 On the other hand, there are, what, 14,000 16 people a year in this country that contract this 17 disease. Some of them are going to have had 18 occupational exposures to benzene, that had nothing 19 to do with their disease. Their latency could be one file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (319 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 week. It could be a hundred years. 21 So I think that there's too much 22 interpretation or, let's say, not a full 23 interpretation of latency going on here. And when 24 you factor these things together, it points back to 25 relatively short latency, and that 35 years, 45 years NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (320 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 161 1 is not consistent with the data. 2 Q. Let me object to responsiveness. 3 Sir, is it your testimony that it is 4 impossible for somebody to have exposures to benzene 5 and not develop AML until 34 years later? 6 A. I think that it's -- I can't say concretely 7 that it's impossible. In epidemiology we deal with 8 probability. I think that the longer the time period 9 from exposure, the more improbable that that disease 10 was induced by that agent. 11 Q. We've just looked at three different 12 studies, the Pliofilm study, the Hayes study, and the 13 Shell River study, where I've pointed out specific 14 examples of people who were in those studies, that 15 had longer latencies than Mr. Clark. You understand 16 that? 17 A. That's a fact. 18 Q. And - 19 A. As they've defined -- as the authors have file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (321 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 defined latency in their studies. 21 Q. All right. And those people are in the 22 studies, with longer latencies than Mr. Clark. Are 23 you going to say that those people's AMLs or 24 leukemias were not related to their exposures to 25 benzene? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (322 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 162 1 MR. MARTINGANO: Objection to form. 2 THE WITNESS: That's an equally good 3 interpretation as the one you would prefer, that 4 they were induced by that benzene exposure - 5 Q. (BY MR. BROWN) You - 6 A. -- on the first day that they were exposed. 7 Q. You can't say which one is more likely or 8 not? 9 A. Well, that's why, epidemiologically, we 10 don't look at one individual. I could say, in 11 Pliofilm, there's someone with no exposure. Why 12 don't we pick that one. 13 Q. That's all - 14 A. Mr. Clark's disease should have occurred by 15 the end of '77, or it wasn't related to benzene. But 16 on distribution, we've got cases -- not a lot. We 17 don't have a lot of cases of benzene-induced AML to 18 study. We have teens, I think, in maximum. 19 So -- but based on that distribution, we file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (323 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 know we can't look at it from the Pliofilm because we 21 don't know when they got the disease. They don't 22 report that. That could be reported. We should ask 23 Dr. Infante about that. That would be a helpful 24 contribution to the science of this topic. So we 25 look at other areas. The whole idea of latency is NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (324 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 163 1 complicated. 2 Q. Let me object to responsiveness. 3 It's complicated, and it doesn't take into 4 consideration things like individual susceptibility; 5 correct? 6 A. It reflects individual susceptibility. 7 That's why, even with an infectious agent, you get 8 hepatitis A exposure. Some 50 days later, on 9 average, people will get sick who will -- who are 10 going to get sick. Among the susceptibles, there's a 11 small distribution of time over which they get the 12 disease. 13 With chemical agents, you have to be able to 14 identify the point at which an exposure occurred that 15 induced the disease. We can't do that. 16 Q. And isn't it fair to state there's no bright 17 line number for the latency period for a -- such that 18 you could opine or not opine that a benzene resulted 19 in leukemia? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (325 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. Epidemiologically, we look at numbers and 21 patterns. And based on those numbers and patterns, 22 we draw conclusions: based on the cases that have 23 occurred, that are believed to be caused by benzene; 24 the distribution points to a shorter latency than 25 would be possible for Mr. Clark. There are NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (326 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 164 1 exceptions that -- in individuals, but in 2 epidemiology we're talking about averages and 3 tendencies and patterns. Probabilities. There's a 4 much greater probability that his exposure period 5 falls outside of normal latency for benzene. 6 Q. Okay. It falls outside of normal latency 7 doesn't mean that it's impossible his leukemia is 8 related to exposure to benzene; correct? 9 A. I think that's fair. I think I'm only asked 10 if it's more likely than not, and that's where I'm 11 coming from. 12 Q. All right. Then you mentioned that -- okay. 13 We need to take a break. 14 MR. MARTINGANO: A break? Let's go off the 15 record. 16 THE VIDEOGRAPHER: The time is 1:29 p.m. We 17 are going off the record. 18 (A recess was taken.) 19 THE VIDEOGRAPHER: The time is 1:37 p.m. We file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (327 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 are back on, on record. 21 Q. (BY MR. BROWN) All right. We left off 22 talking about latency. Sir, what studies do you have 23 that would say that the length of a latency period is 24 directly related to the intensity of the exposure to 25 benzene? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (328 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 165 1 A. The concept of latency, broadly, derives 2 from studies that look at intensity in latencies. 3 You have to study situations where the exposure is 4 known to have caused the outcome. In such settings, 5 it is not benzene. You tend to have a 6 relationship -- say asbestos, where asbestos exposure 7 is intense. The diseases that follow, like 8 mesothelioma, typically have long, long latencies, 9 but they're shortest when the intensity is high and 10 they're longest when the exposure is low. It's part 11 of the concept. 12 Q. All right. Let me object to responsiveness. 13 My question was, what studies do you have, 14 have here with you in your Exhibit 13, in your 15 studies book, that prove that latency duration or the 16 length of a latency period is directly related to the 17 intensity of the exposure? And - 18 A. I told you it's not possible with the 19 benzene literature. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (329 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. So, again, there's nothing that you rely 21 upon in the benzene literature that supports that 22 opinion, other than your own opinion; correct? 23 MR. MARTINGANO: Objection to form. 24 THE WITNESS: My scientific opinion, based 25 on broad application of this concept, is that NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (330 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 166 1 this is generally true, and is expected to be 2 true in this setting as well. 3 Q. (BY MR. BROWN) Have you ever heard of the 4 Latin phrase ipse dixit? Am I pronouncing that 5 right? 6 MR. MARTINGANO: No. But I don't want to 7 hear it either. 8 MR. BROWN: Yeah. Whatever. 9 MR. MARTINGANO: Objection to form. 10 Q. (BY MR. BROWN) The one that says "because I 11 say so, it is." Is there anything other than because 12 you say so that we can look to as peer-reviewed, 13 empirical data that supports what your opinion is, 14 that the length of a latency period is directly 15 related to intensity when it comes to benzene 16 exposure? 17 A. For benzene, no. 18 MR. MARTINGANO: Objection to form. 19 Q. (BY MR. BROWN) All right. Some more file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (331 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 comments about your report. On page 4, you talk 21 about studies from refineries. Then it goes over to 22 page 5. And 6, and then your conclusion paragraph 23 says, "Overall, most of the petroleum industry 24 studies, representing tens of thousands of workers, 25 demonstrate no excess of AML risk"; is that correct? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (332 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 167 1 A. You've read it correctly. 2 Q. Is that your opinion, sir? 3 A. Yes. 4 Q. Here again, in the preamble to the benzene 5 standard, it's commented that Dr. David Savitz -- do 6 you know him? 7 A. I do. 8 Q. You recognize him as a competent, capable 9 epidemiologist? 10 A. Yes, sir. 11 Q. Updated a previous review of the literature, 12 Savitz and Moure, to include studies reported through 13 1985. Regarding the studies of refinery workers, he 14 concluded that several studies showed notably 15 elevated rates of mortality from lymphatic and 16 hematopoietic cancers convincingly linked to benzene 17 exposure. In the hearing testimony, he summarized 18 these findings, and this is what he said: "A number 19 of these studies of all refinery workers have file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (333 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 indicated that increased risk of lymphatic and 21 hematopoietic cancers. The studies are [sic] most 22 convincing for excess risk are, Roushton" - 23 A. Rushton. 24 Q. -- "Rushton and Alderson's case control 25 study indicating risk ratios of 2 to 2.3 for benzene NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (334 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 168 1 exposure among refinery workers with leukemia." Did 2 I read that correctly? 3 A. Yes. I think so. I can't see that far 4 away, but it sounds good. 5 Q. Okay. Down here it says, "The complexity of 6 the refinery environment leaves open the product" - 7 "the possibility," rather, "that some other solvent 8 or refinery product is also a leukemogen, but no 9 other agent has the degree of laboratory or 10 epidemiologic data which exists for benzene to 11 support this possibility." Do you agree with those 12 statements, sir? 13 A. Those are fair statements, sure. 14 Q. That's contradicting what this summary 15 paragraph is in your report. 16 MR. MARTINGANO: Objection. 17 Q. (BY MR. BROWN) Do you agree that? 18 MR. MARTINGANO: Objection to form. 19 THE WITNESS: No, I don't agree with that. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (335 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 You only read the first sentence of that 21 paragraph. 22 Q. (BY MR. BROWN) Well, okay. The document 23 speaks for itself. Did I read it correctly? 24 A. No. You read it incompletely. 25 Q. What paragraph are you talking about? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (336 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 169 I A. These - 2 Q. In your report? 3 MR. MARTINGANO: Page 6. 4 THE WITNESS: You asked me if you read from 5 my report correctly or from that report 6 correctly? 7 Q. (BY MR. BROWN) I'm just saying, you agree 8 with what Dr. Savitz said; correct? 9 A. I did agree with that, and you said it 10 contradicted my report. II Q. I said it contradicts this conclusion 12 paragraph right before chemical industries and other 13 workers. 14 A. And I said I disagreed with that statement, 15 because you had represented this paragraph by its 16 first sentence. 17 The next sentence, "In studies where excess 18 cases are noted, whether statistically significant or 19 not, the number of excess cases is very small. There file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (337 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 remains the possibility that some of these cases had 21 been exposed to very high levels of benzene, that 22 were not individually documented, were exposed to 23 radiation, reflect normal, random variation," and so 24 on. 25 Q. Okay. So you're saying this first sentence NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (338 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 170 1 of your conclusion, under refinery workers, is true, 2 and also what Mr. Savitz says is true? 3 A. Overall, most of the studies don't show an 4 excess, but some do. He identifies a couple of 5 studies where there is an excess. And I agree that 6 there are studies with an excess, and they could well 7 have been caused by benzene. They could also have 8 been caused by other things, because these kinds of 9 studies can only represent whether there's an excess, 10 not what is the cause of the excess. 11 Q. Well, he - 12 A. The case control study is a stronger -- has 13 a stronger opportunity of looking at other risk 14 factors. 15 The second part that you read suggests there 16 could be a number of agents in most of these 17 workplaces. 18 Q. There are refinery studies that show 19 significant elevated risk of leukemias among benzene- file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (339 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 exposed workers; correct? 21 A. Correct. 22 Q. They are reliable, quality epidemiological 23 studies; correct? 24 A. Mostly. 25 Q. And there are chemical industry worker NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (340 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 171 1 studies which show statistically significant elevated 2 increased risk of AML; correct? 3 A. (Examining document.) There might be. 4 There were four in this study of 35,000, at a 5 borderline, statistical significant results. So yes, 6 you might find some results. 7 Q. Did you report any of the ones that -- in 8 the refinery section or the chemical section, that 9 show those excess risk? Risks, rather. 10 A. Well, there's quite a few in the refinery 11 section. Let me see the... Even the Rushton has 12 failed to show excess AML -- oh, I meant to point 13 out, too, that though you read that correctly, it 14 does say "leukemia," not necessarily AML. You'll 15 find the language in my report is specific to AML, as 16 is more -- most relevant to the case in hand. 17 Q. Well, I mean, it all boils down to this idea 18 that benzene is known to cause AML. You don't 19 disagree with that? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (341 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I don't disagree with that. 21 Q. You would agree that the greater weight and 22 overwhelming evidence supports the connection between 23 exposure to benzene and development of AML; correct? 24 MR. MARTINGANO: Objection to form. 25 THE WITNESS: Greater than... NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (342 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 172 I Q. (BY MR. BROWN) The greater weight - 2 A. ...other types of -- I mean, I don't 3 understand how you... 4 Q. Well, when you testified in your deposition 5 last time, you were testifying in a CLL case, and you 6 were saying you won't rely upon one or two studies; 7 you want to look at all of the studies and have a 8 quality - 9 A. Right. 10 Q. -- of what's the weight of the evidence. II When it comes to the weight of evidence 12 between exposure to benzene and AML, the weight 13 suggests there is a strong association; correct? 14 MR. MARTINGANO: Objection to form. 15 THE WITNESS: Correct, given adequately high 16 concentration of exposure. 17 Q. (BY MR. BROWN) All right. And when you say 18 "high concentrations of exposure," what do you mean? 19 A. For most of the petroleum workers, they're file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (343 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 exposed to very low levels, often a matter below 21 exposure limits, and in those populations, we don't 22 see excesses of AMLs. 23 Q. Let me object to responsiveness. 24 My question was, when you say benzene can 25 induce AML at high exposure levels to benzene, what NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (344 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 173 1 are you referring to? What's a high exposure 2 level - 3 A. Uh-huh. 4 Q. -- that you're referring to in that? 5 A. I'm sorry. It's admittedly subjective. 6 It's been attempted, in a number of risk assessments, 7 to determine the point at which the risk curve 8 increases. There's risk assessments that identify a 9 cumulative exposure of 200 parts per million years 10 and 400 parts per million years. I think they're 11 referenced here. I had to consider those high 12 levels, although they don't tell you what the 13 intensity was. You could have one part per million 14 for 200 years, or you could have 200 parts per 15 million for one year. And that's the same message. 16 I don't think those confer the same risk, so it's 17 not -- sorry. Not to be obtuse about this, but 18 it's -- it's not so clear. 19 The high levels, the Pliofilm workers were file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (345 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 exposed to tens, to hundreds of parts per million. 21 And clearly, they generated an excess of leukemias in 22 general, and AMLs as well. 23 Q. All right. Well, let me object to 24 responsiveness. 25 In the Pliofilm study, at what levels did it NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (346 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 174 1 start to bear out that workers were developing 2 leukemia from exposures to benzene, on the exposure 3 matrix that they used in that case? 4 A. Well, I believe I referred to the risk 5 assessments based on those data. The studies 6 themselves can't tell you what level. That has to be 7 statistically modeled. And... 8 Q. Well, here. Looking at Exhibit 6, you can 9 see that with stratification, according to the levels 10 of cumulative exposure, workers exposed between 40 11 and 199 parts per million had a relative risk of 12 300 -- 322? 13 A. Yes, yes. See, those are adequately high. 14 This is Rinsky's, yes. 15 Q. And as he goes up to the higher category, 16 200 to 400, it's even higher. And as it -- that's 17 what they referred to as the dose-response curve; 18 correct? 19 A. I believe that they depict that curve in file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (347 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 this or maybe another... I think this is one of 21 several risk assessments. 22 Q. And you're referring to - 23 A. And they consistently show that these 24 cumulative exposures are in the hundreds of parts per 25 million. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (348 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 175 1 Q. And this is what you've told us as far as 2 epidemiological studies go: Relatively speaking, 3 it's the best we've got; correct? 4 A. It's the only one that allows the 5 quantification of the risk. 6 Q. All right. Were you aware that Brown & 7 Root's own industrial hygienist in this case, 8 Mr. Schumacher, had calculated a cumulative year 9 exposure for Mr. Clark, had he been exposed to 10 benzene, like Mr. Clark and his coworkers said he 11 was? 12 MR. MARTINGANO: Objection to form. 13 THE WITNESS: No. I'm not aware of that. 14 Q. (BY MR. BROWN) I'll represent to you that 15 he's calculated that exposure at 230 part per million 16 years or more, all right? 17 A. Yes. 18 MR. MARTINGANO: Objection to form. 19 Q. (BY MR. BROWN) With that kind of exposure, file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (349 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 if you assume that Mr. Clark did have that kind of 21 exposure, like Mr. Schumacher calculated, would that 22 be sufficient in terms of epidemiological literature 23 that you reviewed, to be associated with causing AML? 24 MR. MARTINGANO: Objection to form. 25 THE WITNESS: I think that with the caveat NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (350 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 176 1 you stated -- had that exposure actually 2 occurred -- then that certainly would put 3 Mr. Clark and individuals similarly exposed at 4 increased risk. 5 Q. (BY MR. BROWN) All right. If Mr. Clark was 6 exposed to benzene, like he and his coworkers say he 7 was, would you agree that, in all probability, his 8 AML is as a result of his benzene exposure? 9 MR. MARTINGANO: Objection to form. 10 THE WITNESS: I think I would have an easier 11 time coming to that conclusion, had there been 12 credible evidence of the use and exposure to 13 benzene and an appropriate latent period. So if 14 we can add to your hypothetical that the disease 15 developed within 20 years of that time, it would 16 be -- it might lean me in that direction, yes. 17 Q. (BY MR. BROWN) Of all the risk factors that 18 there are for AML, which ones did Mr. Clark have, 19 according to his testimony and the evidence that file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (351 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 you've seen? 21 MR. MARTINGANO: Objection to form. 22 THE WITNESS: I don't think that's an 23 entirely fair question, because there are very 24 few known risk factors for AML. Most cases are 25 idiopathic, for which there's no known cause. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (352 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 177 1 So the probability that anyone who develops 2 the disease has a risk factor, like an x-ray or 3 radiation exposure, is quite high. Whether that 4 had any role in the disease is unknowable. 5 So your question implied, Of the risk 6 factors that are known, which did he most likely 7 have? Well, most risk factors are not known. We 8 can't predict. We can't explain the vast 9 majority of AMLs that occur. 10 Q. (BY MR. BROWN) All right. Let me object to 11 responsiveness. 12 Do you have any evidence that Mr. Clark was 13 exposed to radiation in sufficient quantities to 14 cause his AML? 15 MR. MARTINGANO: Objection to form. 16 THE WITNESS: I have seen no evidence that 17 Mr. Clark was exposed to -- convincingly, to any 18 of the known risk factors. And if most disease 19 occurrences are unexplained or idiopathic, then file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (353 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 it's highly probable that he is among them. 21 Q. (BY MR. BROWN) All right. Let me object to 22 responsiveness. 23 That's why we're going to be -- end up 24 taking longer today, unless you all just walk out on 25 me. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (354 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 178 1 Have you seen any evidence that Mr. Clark 2 was exposed to radiation in sufficient quantities to 3 cause his AML? 4 MR. MARTINGANO: Objection to form. 5 THE WITNESS: I have not seen his radiation 6 exposure history. 7 Q. (BY MR. BROWN) All right. And you have 8 not -- so the answer to my question is no, you have 9 not seen any evidence that he was exposed to 10 radiation in sufficient quantities to cause his AML; 11 correct? 12 MR. MARTINGANO: Objection to form. 13 THE WITNESS: That's correct. 14 Q. (BY MR. BROWN) Have you asked for his 15 radiation exposure history? 16 A. No, I have not. 17 Q. Have you felt that was necessary that you 18 have that in order to express your opinions in this 19 case? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (355 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. MARTINGANO: Objection to form. 21 THE WITNESS: No. My goal was to observe, 22 to evaluate what was provided with respect to 23 benzene and his disease, not to explore what 24 might have caused his disease. 25 Q. (BY MR. BROWN) Object to everything after no NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (356 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 179 1 as nonresponsive. 2 Have you seen any evidence in this case that 3 Mr. Clark was exposed to chemotherapeutic drugs or 4 alkylating agents, sufficient quantities to cause his 5 AML? 6 A. I believe he was not, from the medical 7 record. 8 Q. Have you seen any evidence that he was 9 exposed to arsenic in sufficient quantities to cause 10 his acute myelogenous leukemia? 11 A. I'm not sure that I would recognize arsenic 12 as a cause of -- or anything else that we haven't 13 mentioned yet as a cause. 14 Q. All right. Let me ask you that question, 15 then: Do you recognize arsenic exposure as a risk 16 factor for AML? 17 A. No, I don't. I have not looked at that 18 specifically. 19 Q. Have you seen anything about Mr. Clark's file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (357 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 family history that you would say is a contributing 21 cause to his AML? 22 A. I'm not sure that -- of what elements of a 23 family history are known to be risk factors for AML. 24 I have not seen anything. 25 Q. So the answer to my question is no; correct? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (358 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 180 1 A. Correct. 2 Q. Have you seen any chromosomal aberrations or 3 abnormalities that Mr. Clark has, that you believe 4 were a risk factor of his AML? 5 A. I'm not familiar with his profile, nor am 6 I -- is that my area of expertise. 7 Q. All right. And then we've talked about his 8 smoking, and you cannot say that his smoking was such 9 that it put me him at an increased risk of his AML; 10 correct? 11 A. Correct. 12 Q. So the only risk factor that we know of, 13 environmental agent, is benzene; correct? 14 MR. MARTINGANO: Objection to form. 15 Q. (BY MR. BROWN) I understand your position, 16 that you don't believe what the guys say, Mr. Clark 17 and his coworkers. But if you assume what they say 18 is true, then wouldn't it be a fair assumption and 19 reasonable scientific probability that benzene was a file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (359 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 contributing factor of his AML? 21 MR. MARTINGANO: Objection to form. 22 THE WITNESS: With the previous caveat that 23 I gave you, that also, within a reasonable time 24 frame following that exposure. 25 Q. (BY MR. BROWN) All right. What evidence -- NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (360 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 181 1 what would you tell the jury in this case if the jury 2 were to believe -- well, strike that. 3 Well, let me just ask you, what are your 4 opinions in this case? Can you just list them one, 5 two, three, in that kind of order? 6 MR. MARTINGANO: Objection to form. That's 7 what the report kind of - 8 THE WITNESS: Sure. 9 Q. (BY MR. BROWN) Well, I mean, what are your 10 opinions as to the cause of Mr. Clark's disease? 11 A. My opinion is that - 12 MR. MARTINGANO: Objection to form. 13 THE WITNESS: -- that it can't be determined 14 what his cause was. And therefore, my 15 conclusion -- one of my conclusions is that it's 16 more likely than not an idiopathic disease. 17 Q. (BY MR. BROWN) All right. If you assume 18 that he was exposed like he and his coworkers 19 testified, would that be an assumption that would file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (361 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 allow you to determine a potential cause of his 21 disease? 22 MR. MARTINGANO: Objection to form. 23 THE WITNESS: I think I've answered this, 24 and I have caveats to that, so we'll prolong the 25 debate if you don't embrace those, or we can NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (362 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 182 1 assume that they hold. 2 The exposure has to be substantial to 3 benzene. It's clear from the literature. 4 Q. (BY MR. BROWN) 230 parts per million years 5 is substantial, isn't it, sir? 6 MR. MARTINGANO: Objection to form. 7 THE WITNESS: If it were obtained over the 8 short period of time that he claims to be 9 exposed, it qualifies for high exposure. 10 Q. (BY MR. BROWN) Well, 230 parts per million 11 years is high exposure, no matter how long he was 12 exposed; correct? 13 MR. MARTINGANO: Objection to form. 14 THE WITNESS: Theoretically, if you lived a 15 thousand years, it would be a modest exposure on 16 a daily basis. That's all I'm saying, is, over a 17 five-year period, 230 part per million years, 18 cumulative, means that that's quite high. 19 Q. (BY MR. BROWN) And if he had those exposures file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (363 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 to benzene, like he and his coworkers testified, 21 could you rule out benzene as a cause of his AML? 22 A. Not exactly. Give -- you're saying, still 23 assuming this 35-year latency? 24 Q. Well, I'm saying if Mr. Clark had exposures 25 to benzene, like he and his coworkers testified he NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (364 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 183 1 did, could you, as an epidemiologist for 2 Brown & Root, rule out benzene as a contributing 3 factor to his AML? 4 MR. MARTINGANO: Objection to form. 5 THE WITNESS: No, no. 6 Q. (BY MR. BROWN) All right. And so, really, 7 the only way you can say that you don't believe his 8 AML could have resulted from exposure to benzene is 9 to say, "I don't believe that these workers were 10 correct when they say they were exposed to benzene"? 11 MR. MARTINGANO: Objection to form. 12 Q. (BY MR. BROWN) That's really the basis of 13 your opinion, isn't it, sir? 14 MR. MARTINGANO: Objection to form. 15 THE WITNESS: My understanding is the 16 science suggests that a high level of benzene 17 exposure is required to induce benzene-related 18 leukemia. Given a case of leukemia that was 19 exposed, that is one interpretation and a more file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (365 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 probable one. 21 If he wasn't exposed to that, to benzene, 22 then the other explanationsaremore probable, 23 like it's idiopathic. 24 So these are things that, based on the 25 evidence made available,wethenformulate a NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (366 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 184 1 professional opinion. 2 Q. (BY MR. BROWN) So, I mean, that's what it 3 boils down to: As an epidemiologist, if he wasn't 4 exposed to benzene, then your opinion would be his 5 AML is idiopathic; correct? 6 A. Yes, exposed to benzene at the high 7 concentrations that he claims, whether or not - 8 Q. Right. 9 A. -- the modeling of his exposures was 10 accurate. 11 Q. But if he was exposed to benzene, like he 12 said he was, then, in all probability, benzene was a 13 contributing factor of the development of his 14 disease; correct? 15 MR. MARTINGANO: Objection to form. 16 THE WITNESS: Not in all probability. 17 Q. (BY MR. BROWN) Well - 18 A. You're pushing it a little bit. 19 Q. In probability, then? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (367 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. It becomes a more likely explanation. It 21 can't be known, but it's more reasonable. 22 Q. Well - 23 A. If it further fits within the time frame, 24 then the greater probability can be assessed to that. 25 Q. May I ask you if, in the documents that you NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (368 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 185 1 received from Brown & Root's lawyers, you saw what 2 was -- has been previously marked Exhibit 12 to 3 another deposition? 4 MR. MARTINGANO: And I'll -- let me just 5 stipulate we did not -- that's not a document 6 that's been produced in this case. That's a 7 document that the plaintiffs have obtained from 8 other sources. 9 MR. BROWN: Okay. Let's go ahead and just 10 mark that as Exhibit Number 15 in this case, so 11 we won't get confused. 12 (Plaintiff's Deposition Exhibit No. 15 offered and marked.) 13 14 Q. (BY MR. BROWN) All right. I've marked the 15 Brown & Root document as Exhibit 15. Have you seen 16 that before, sir? 17 A. I'd have to compare it with the stacks of 18 documents that I have on this. 19 Q. Well, let's take -- file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (369 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. But do you represent that this - 21 MR. MARTINGANO: I'll - 22 MR. BROWN: Let's take Mr. Martingano's word 23 for it. 24 THE WITNESS: -- was not sent to me? So, 25 no, I have not seen it. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (370 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 186 1 Q. (BY MR. BROWN) Okay. Let me refer you to a 2 couple of things in there. First of all, you can see 3 it's dated June 1, 1963; correct? 4 A. Correct. 5 Q. And here on the foreword it mentions, 6 "Safety bulletins and pamphlets published by the 7 National Safety Council, in expressing a variety of 8 safety themes, are also available to each job on an 9 as-required basis"; correct? 10 A. Yes. I think that's right. 11 Q. So they had available to them National 12 Safety Council data; right? According to that 13 document. 14 A. According to that document. 15 Q. Have you ever seen the 1950 National Safety 16 Council document on benzol, that we've marked as 17 Exhibit 11 for today, sir? 18 A. I don't recall having seen this, no. 19 Q. All right. That document is dated 1950 at file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (371 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 the bottom; correct? 21 A. That's correct. 22 Q. And it's published by the National Safety 23 Council; correct? 24 A. Correct. 25 Q. In paragraph 6, in the middle column down, NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (372 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 187 1 about halfway, do you see where the sentence starts, 2 "Inasmuch"? 3 A. (Examining document.) 4 Q. No, no, no. Let's see. 5 A. I thought you were -6 Q. Right here. 7 A. I though you had memorized it. 8 Q. "Because the appearance and pleasant smell 9 of benzene give no warning of its toxic effect and 10 because a victim may become incurably poisoned before 11 he feels ill, benzene is one of the most insidious 12 poisons ever to find wide industrial use." 13 Did I read that correctly? 14 MR. MARTINGANO: Objection to form. 15 THE WITNESS: (Examining document.) Yes, 16 you did. 17 Q. (BY MR. BROWN) All right. And there are 18 numerous other portions of that document that discuss 19 how to protect workers from the benzene hazards in file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (373 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 various jobs. 21 The point is, if Brown & Root was members of 22 the National Safety Council in '63 and was receiving 23 information from the National Safety Council and 24 referencing it in their publications, like we have as 25 Exhibit 15, can you think of any good reason why that NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (374 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 188 1 information that's in that National Safety Council 2 document shouldn't have been communicated to the 3 Brown & Root employees out there, on the job? 4 MR. MARTINGANO: Objection to form. 5 THE WITNESS: I see no reason why -- not to 6 provide this information to people who are 7 handling benzene. 8 Q. (BY MR. BROWN) Workers have a right to know 9 about the health hazards of the chemicals they're 10 required to work with; correct? 11 A. This -- yes, they do. This clearly 12 emphasizes the extreme flammability and harmful 13 vapor. 14 Q. Well, sir, is it your testimony that workers 15 in the maritime industry or the petroleum chemical 16 industry never used flammable solvents as a cleaner 17 or to dissolve all their grease? 18 MR. MARTINGANO: Objection to form. 19 THE WITNESS: It's deja vu. Certainly file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (375 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 solvents are used and they are flammable and have 21 flash points at different levels. Benzene has 22 such a low flash point that, for solvent use, is 23 very hazardous, for explosive reasons alone. 24 Q. (BY MR. BROWN) Well, do you know to the 25 extent benzene was used in the petrochemical NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (376 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 189 1 industries by workers as a cleaning solvent 2 throughout the 1950s and '60s and '70s? 3 MR. MARTINGANO: Objection to form. 4 THE WITNESS: I have not seen industrial 5 hygiene reports regarding how or by whom it was 6 used. I have heard anecdotal stories of benzene 7 being used, including references to benzene for 8 whatever solvent was present. 9 Q. (BY MR. BROWN) You've read - 10 A. There is a general folklore about solvents 11 that -- people refer to it various ways. And so from 12 a -- say, a scientific perspective or a documentation 13 of an industrial hygiene or actual process use, 14 that's less frequently produced. 15 Q. Have you read epidemiological studies, such 16 as the Shell, Deer Park, and Wood River studies, that 17 reference the fact that benzene was used as a 18 cleaning solvent among workers in their plants? 19 MR. MARTINGANO: Objection to form. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (377 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 THE WITNESS: I clearly agree that benzene 21 would have been used as a cleaning solvent in 22 certain circumstances. 23 Q. (BY MR. BROWN) And it's flammable in the 24 1950s, it's flammable in the 60's, it's flammable in 25 the '70's, it's flammable if it's used in Shell, and NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (378 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 190 1 it's flammable if it's used out on the open seas; 2 correct? 3 A. I never questioned its flammability. 4 Q. Well, it's -- but you are questioning its 5 use as a cleaning solvent because it's flammable, 6 knowing all along that it -- that was commonly used 7 as a cleaning solvent in that industry; correct? 8 MR. MARTINGANO: Objection to form. 9 THE WITNESS: I really didn't say that 10 because it was used somewhere else in the 11 industry, that it was used in this -- on these 12 barges, around welding operations, or that it was 13 used to clean welding equipment. Solvents were 14 used, and there are various solvents available. 15 What was used in a specific place, especially on 16 these barges, remains unknown, because we don't 17 have any good evidence of what was used. 18 Q. (BY MR. BROWN) Except for the guys' own 19 testimony; correct? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (379 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. MARTINGANO: Objection to form. 21 THE WITNESS: There's testimony as to what 22 they believed the substance they were using, one 23 of the substances was, another of which was 24 diesel. Another was, I think, trichloroethylene. 25 Q. (BY MR. BROWN) What do you think the NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (380 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 191 1 substance was that they were using, sir? 2 MR. MARTINGANO: Objection. 3 Q. (BY MR. BROWN) Besides benzene? 4 A. Well, I have no basis to know but for what's 5 been testified to. There was a suggestion of a rig 6 wash substance. That's another part of testimony. 7 Q. Do you know what the chemical content was of 8 rig wash? 9 A. No, I don't. 10 Q. I think you mentioned naphtha earlier. Do 11 you know if naphtha is a product that contains 12 benzene? 13 MR. MARTINGANO: Objection to form. 14 THE WITNESS: I don't know what -- I think 15 naphtha can certainly have benzene contamination. 16 Q. (BY MR. BROWN) Were you aware that in 1969 17 the API studied the toxicological effects of 18 naphthas, and in that study they found that naphthas 19 containing as little as 1 to 2 percent benzene by file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (381 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 volume could result in benzene levels in air that 21 exceeded the TLV for that time of 20 parts per 22 million? 23 MR. MARTINGANO: Objection to form. 24 THE WITNESS: I haven't looked at that. 25 Q. (BY MR. BROWN) Would you consider a air NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (382 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 192 1 concentration of benzene, of 20 parts per million, to 2 be unsafe? 3 MR. MARTINGANO: Objection to form. 4 THE WITNESS: Well, I certainly don't know 5 the circumstances under which that was detected 6 or measured. Twenty parts per million as ambient 7 constituent is certainly high and well above 8 current exposure limit. 9 Q. (BY MR. BROWN) Give me one second. I'm 10 about -- I think I'm going to be able to wrap up. 11 Why don't we take a quick break - 12 MR. MARTINGANO: Yeah. Let's go off the 13 record. 14 MR. BROWN: -- and I'll see where we might 15 be able to catch up without having to - 16 THE VIDEOGRAPHER: The time is 2:09 p.m. 17 We're going off the record. 18 (Discussion off the record.) 19 THE VIDEOGRAPHER: The time is 2:15 p.m. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (383 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 We're back on record. 21 Q. (BY MR. BROWN) What was Mr. Clark's age at 22 the time of his diagnosis? 23 A. I don't - 24 Q. Do you recall that? 25 A. I don't recall. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (384 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 193 1 Q. Was it 55 or 56, something like that? 2 That's what I'm -- I'll represent to you - 3 A. Okay. 4 Q. -- he was in his mid-fifties when he got 5 diagnosed. Is that a typical decade in which you see 6 the most AMLs being diagnosed in man? 7 A. I believe the most are diagnosed at somewhat 8 older ages. It's still within this -- the 9 distribution of where most occur -- fifties, sixties, 10 seventies. 11 Q. Most of them occur, most diagnoses of 12 leukemia occur in the seventies; correct? 13 A. Yes. 14 Q. And fewer in the sixties and even fewer in 15 the fifties? 16 A. Correct. 17 Q. Which would tend to support, you know, these 18 other environmental factors as being a cause; would 19 you agree with that? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (385 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I don't know how you can say that. 21 Q. In the Brown & Root safety manuals that you 22 say you reviewed, was there any reference in those 23 manuals that prohibited the use of benzene as a 24 cleaning solvent? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (386 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 194 1 THE WITNESS: I don't recall language that 2 specific. 3 Q. (BY MR. BROWN) I think we may have even 4 talked earlier that you don't even recall benzene 5 being mentioned except for one reference to its flash 6 point. 7 A. That's correct. 8 Q. I don't know if we've talked about 9 Exhibit 5. That is Dr. Infante's study on latency 10 and cumulative exposure and leukemia cells types. 11 Have you ever seen that document before, sir? 12 A. I may not have seen this. This is a journal 13 I don't recognize. 14 Q. Well, I'm just asking you, have you seen it 15 or not? 16 A. No. 17 Q. All right. What does Dr. Infante say, that 18 I have highlighted there on that abstract? 19 A. "The latency period for benzene leukemia can file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (387 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 range from less than one year to more than 40 years 21 after initial exposure, with the median latency, from 22 various studies, ranging from nine to 35 years." 23 Q. If he's correct, Mr. Clark falls into the 24 median range of latencies; correct? 25 MR. MARTINGANO: Objection to form. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (388 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 195 1 THE WITNESS: I'm sorry. If... If who's 2 correct? 3 Q. (BY MR. BROWN) If Dr. Infante is correct 4 about his opinions on median latencies ranging from 5 nine to 35 years, Mr. Clark's latency period would 6 fall within that median range correct? 7 MR. MARTINGANO: Objection to form. 8 THE WITNESS: If this is a correct -- I see 9 what you're saying. If this is a correct 10 statement, then Mr. Clark's latency was less than 11 35 years. 12 Q. (BY MR. BROWN) Right. 13 A. Which then puts it into the range -14 Q. The median -15 A. -- of nine to 35. 16 Q. That he refers to as the median range; 17 correct? I'm correct about that? 18 A. That's correct, yes. 19 Q. Do you agree with his opinions? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (389 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. I have not reviewed the evidence on which he 21 bases that conclusion. 22 Q. All right. So, as you sit here, you can't 23 disagree with that statement, without looking at his 24 study; is that right? 25 A. I can't agree or disagree, because he NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (390 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 196 1 doesn't give, in this statement, the distribution. 2 He gives the range. I don't know where the most 3 fall. 4 Q. Okay. You testified in your earlier 5 deposition that you knew Dr. Infante; correct? 6 A. Yes, sir. 7 Q. And that you knew him to be a qualified 8 epidemiologist, such that he was qualified to express 9 opinions on matters involving benzene-related 10 diseases; correct? 11 A. I don't question his education or 12 credentials. 13 Q. Have you spoken to any of the other experts 14 hired by Brown & Root in this case, to formulate any 15 of your opinions? 16 A. No, sir. 17 Q. Have you reviewed the depositions of any of 18 plaintiff's experts in this case, to formulate your 19 opinions? file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (391 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 A. Yes, I have. 21 Q. Which experts have you looked at? 22 MR. MARTINGANO: (Handing document.) 23 THE WITNESS: Thank you. I thought I was 24 more organized. I have Dr. Infante's, 25 Dr. Smith's, and Dr. Dement's. I'm sorry. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (392 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 197 I MR. MARTINGANO: For the record, Smith - 2 THE WITNESS: It's not Dr. Smith. I'm 3 sorry. It was in the last group of materials I 4 received, and Doctors Infante and Dement are the 5 expert testimonies that I reviewed. 6 Q. (BY MR. BROWN) All right. Do you know 7 Dr. John Dement? 8 A. I do. 9 Q. Have you -- what is your knowledge of his 10 reputation as an epidemiologist and an industrial II hygienist? 12 A. He has a phenomenal reputation. He's a good 13 industrial hygienist and - 14 Q. All right. 15 A. -- knows much about epidemiology. 16 Q. And it's his opinions in this case, as you 17 know, that Mr. Clark's AML was caused by his 18 exposures to benzene; correct? 19 A. I believe that's a summary of his file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (393 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 representation. 21 Q. He would have, as an epidemiologist, 22 factored in all the things that you have: the risk 23 factors, the risk factor analysis that we have gone 24 through, the latency period and everything else. And 25 Dr. Dement comes up with the opinion that Mr. Clark's NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (394 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 198 1 exposure to benzene, as he testified, is a cause of 2 his acute myelogenous leukemia. 3 Do you have any reason to dispute 4 Dr. Dement's opinion, assuming that the exposures, as 5 testified to by Mr. Clark and his coworkers, are true 6 and accurate? 7 MR. MARTINGANO: Objection to form. 8 THE WITNESS: With that condition, I think I 9 have no reason to object. Dr. Dement factors or 10 places more weight on the deposition testimony of 11 Mr. Clark and his coworkers than I do. 12 Q. (BY MR. BROWN) And you -- do you have an 13 understanding, having been hired as an expert in a 14 case before, about what an expert's job is, is to 15 assist a jury in making its factual determinations in 16 the case? Do you have that understanding? 17 MR. MARTINGANO: Objection to form. 18 THE WITNESS: Absolutely. Yes. 19 Q. (BY MR. BROWN) And you wouldn't want to file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (395 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 invade that jury's job in this case or have your 21 beliefs or opinions about whether or not these 22 individuals did or did not use benzene, as they said, 23 whether or not they're telling the truth, you 24 wouldn't want to take that job away from the jury, 25 would you? NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (396 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 199 1 MR. MARTINGANO: Objection to form. 2 THE WITNESS: I'm sorry. I don't fully 3 understand. I can either take a shot at 4 answering, or you - 5 Q. (BY MR. BROWN) Well... 6 A. If you could rephrase it. I know what my 7 job is. I guess I don't understand what you're 8 talking about the jury's job. 9 Q. Well, if the jury's job is to determine the 10 credibility of witnesses -- which it is -- are you in 11 any better position than a jury to do that? 12 MR. MARTINGANO: Objection to form. 13 THE WITNESS: I guess I wouldn't say that 14 that's my job. My job is to examine the facts in 15 the case, from an epidemiological perspective, 16 and help the jury understand what I do, from an 17 epidemiological perspective, with respect to the 18 relationships between benzene and disease, the 19 kinds of information that people supply, and file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (397 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 whether that's accurate ways of representing 21 exposures for scientific purposes. 22 Q. (BY MR. BROWN) It's not an epidemiologist's 23 job to listen to workers' statements of how they got 24 exposed to an agent and say -- and try to determine 25 if they're telling the truth or not? That's not what NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (398 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 200 1 an epidemiologist does, is it? 2 A. Why not? If I'm doing a study of a 3 workplace, I need to understand what the perceptions 4 of exposure are and how reliable that information is. 5 I like to have multiple sources, so I can validate 6 that information. I think that employees' opinions 7 of their exposures can be quite valuable and can be, 8 you know, sometimes quite reasonable representations 9 of what's going on, and other times, not so. 10 Q. Epidemiology is the study of epidemics; 11 correct? 12 A. That's an oversimplification. I think there 13 are many, many epidemiologists, including myself, 14 that has never investigated an epidemic. 15 Q. What's your definition of epidemiology? 16 A. It's really the study of the relationships 17 between and among various things we consider risk 18 factors and the risks of disease and all its 19 manifestations, and health, for that matter. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (399 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 Q. It's not the study of whether somebody's 21 telling the truth or not, is it? 22 A. Well, it's the identification of bias, 23 meaning not that anyone intentionally misleads or 24 gives bad information, but the study of why we see 25 the patterns we do within certain studies is very NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (400 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 201 1 much the job of epidemiology. 2 Q. Do you have a study that shows or tends to 3 prove that persons in Mr. Clark's situation or his 4 coworkers' situation, who have absolutely no interest 5 in this lawsuit, tend to show bias when they are 6 involved in a lawsuit, I mean, from an 7 epidemiological standpoint? 8 A. Yes. 9 MR. MARTINGANO: Objection to form. 10 THE WITNESS: Yes. There are studies that 11 demonstrate -- it's called litigation bias. 12 Q. (BY MR. BROWN) And are those epidemiological 13 studies? 14 A. There are epidemiological studies published. 15 I don't -- I didn't present them here. 16 Q. Are those included in Exhibit 13? 17 A. No. 18 Q. You have not relied upon any of those 19 studies in formulating your opinions; is that file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (401 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 correct? 21 MR. MARTINGANO: Objection to form. 22 THE WITNESS: That's correct. I was not 23 asked -- I wasn't asked this line of questioning. 24 Q. (BY MR. BROWN) Would it be fair to say that 25 you -- your conclusions about whether these men are NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (402 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 202 1 telling the truth or not or whether they actually 2 used benzene, like they said they were, or not, are 3 based on your common sense? 4 MR. MARTINGANO: Objection to form. 5 THE WITNESS: No. It's my 20-plus years of 6 doing research in workplace settings, with all 7 kinds of people and hazardous materials, and my 8 understanding of the properties of the material 9 in question here, benzene, in the context of a 10 welding operation, is a very dangerous situation. 11 It's not an opinion of someone who -- of a 12 layperson. 13 Q. (BY MR. BROWN) All right. Is it your 14 understanding that they only used benzene, Mr. Clark 15 and his coworkers only used benzene to clean up 16 welding machines in and around welding equipment? 17 A. No. I never said that. That fact that it 18 is stated by one of the coworkers helps me to weight 19 less that individual's testimony. file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (403 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 MR. BROWN: All right. I don't believe I 21 have any further questions. I appreciate your 22 time, sir. 23 MR. MARTINGANO: Okay. We'll reserve our 24 questions until the time of trial. 25 MR. BROWN: We got you through by 2:30. NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (404 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 203 1 MR. MARTINGANO: Great. We're done. 2 THE VIDEOGRAPHER: The time is 2:27 p.m. 3 The deposition of Dr. Kenneth Mundt is now 4 adjourned. We are going off the record. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (405 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 21 22 23 24 25 NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (406 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 204 1 CERTIFICATE OF DEPONENT 2 3 I, KENNETH A. MUNDT, PH.D., have read the 4 foregoing transcript of the testimony given at the 5 deposition on MONDAY, MAY 7, 2007, and it is true and 6 accurate to the best of my knowledge and/or with the 7 changes as noted in the attached errata sheet. 8 9 KENNETH A. MUNDT, PH.D. 10 11 12 13 Subscribed and sworn to before me this 14 day of , 2007. 15 16 Notary Public/Commissioner of Deeds 17 18 My Commission Expires: 19 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (407 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 21 22 CAUSE NO. 06-H-0395-C AUBREY CLARK AND WIFE, KELLY CLARK 23 vs. KELLOGG BROWN & ROOT, LLC AND HALLIBURTON COMPANY 24 KENNETH A. MUNDT, PH.D., (AM), MAY 7, 2007 JER 25 NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (408 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 205 1 CERTIFICATE 2 3 I, Jill E. Remillard, License #385, a Notary 4 Public for the State of Connecticut and Commonwealth 5 of Massachusetts, do hereby certify that the 6 deposition of KENNETH A. MUNDT, PH.D., was taken 7 before me pursuant to the Texas Rules of Civil 8 Procedure, at Sheraton Bradley Hotel, 1 Bradley 9 International Airport, Windsor Locks, Connecticut 10 06096, commencing at 10:08 a.m. on MONDAY, MAY 7, 11 2007. 12 I further certify that the witness was first 13 sworn by me to tell the truth, the whole truth, and 14 nothing but the truth and was examined by counsel, 15 and his testimony was stenographically reported by 16 me to the best of my ability and subsequently 17 transcribed as herein before appears. 18 I further certify that I am not related to the 19 parties hereto or their counsel and that I am not in file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (409 of 410) [1/10/2011 4:35:38 PM] file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt 20 any way interested in the events of said cause. 21 Witness my hand this 8th day of MAY, 2007. 22 23 Jill E. Remillard, Notary Public 24 My Commission Expires: My Commission Expires: January 21, 2011 (In MA) August 31, 2010 (In CT) 25 NIZIANKIEWICZ & MILLER (860) 291-9191 file:///C|/Users/MadeK42/Desktop/mundt.k.07.05.clark.txt (410 of 410) [1/10/2011 4:35:38 PM]