Document qmnQyLzkNYa59QNRMZgRBY0y5

1 1 B-126,986 2 RUSSELL ALLEN, ET AL * * IN THE DISTRICT COURT OF 3 VS. * JEFFERSON COUNTY, TEXAS * 4 AMERICAN PETROFINA, ET AL * 60TH JUDICIAL DISTRICT 5 A-134,614 6 FRENCH HICKS, ET AL 7* * IN THE DISTRICT COURT OF VS. 8 * JEFFERSON COUNTY, TEXAS * BETHLEHEM STEEL CORP., ET AL * 58TH JUDICIAL DISTRICT 9 10 B-141,242 11 ROOSEVELT SCOTT * * IN THE DISTRICT COURT OF 12 VS. * JEFFERSON COUNTY, TEXAS * 13 AMERICAN OPTICAL CORP., ET AL * 60TH JUDICIAL DISTRICT 14 A-138,633 15 MARGARET FAULKNER, ET AL 16 * * IN THE DISTRICT COURT OF VS. 17 * JEFFERSON COUNTY, TEXAS * AKRON CHEMICAL CO., ET AL * 58TH JUDICIAL DISTRICT 18 19 A-136,143 20 KEITH GIBLIN, ET AL * * IN THE DISTRICT COURT OF 21 VS. * JEFFERSON COUNTY, TEXAS * 22 MOBIL OIL CORPORATION, ET AL * 58TH JUDICIAL DISTRICT 23 VIDEO DEPOSITION OF JOHN E. HILL 24 TAKEN ON SEPTEMBER 24, 1992 25 2 1 E-141,216 2 JOSEPH E. BARNARD, ET UX * IN THE DISTRICT COURT OF * 3 VS. * JEFFERSON COUNTY, TEXAS * 4 ALLIED-SIGNAL, INC., ET AL * 172ND JUDICIAL DISTRICT 5 A-140,498 6 JOYCE A. BORNE, ET AL 7* * IN THE DISTRICT COURT OF VS. 8 * JEFFERSON COUNTY, TEXAS * ALLIED-SIGNAL, INC., ET AL * 58TH JUDICIAL DISTRICT 9 10 11 12 13 VIDEO DEPOSITION OF 14 JOHN E. HILL 15 16 17 18 19 20 On September 24, 1992, the video deposition of 21 John E. Hill, a Witness in the above-styled cause, was 22 taken at the instance of the Plaintiffs at the Clarion 23 Harvest Hotel, 1345 28th Street, Boulder, Colorado, 24 pursuant to Stipulation of Counsel contained herein. 25 3 1 Those counsel present, representing their 2 respective client or clients in the cause of action or 3 causes of action in which he/she has filed an answer, 4 were as follow: 5 JOSEPH C. BLANKS 6 Reaud, Morgan & Quinn 801 Laurel Street 7 Beaumont, Texas 77701 8 Counsel for Plaintiffs 9 HERSCHEL L. HOBSON 10 Hobson & Ferguson 2190 Harrison Street 11 Beaumont, Texas 77701 12 Counsel for Plaintiffs 13 LOUIS H. KNABESCHUH, JR. 14 Orgain, Bell & Tucker 470 Orleans Street 15 Beaumont, Texas 77701 16 Counsel for Defendant, MINNESOTA MINING & MANUFACTURING 17 COMPANY, INC. 18 WILLIAM SCHWEINLE 19 Ellison, Schweinle, Parish & Beerbower 1001 Fannin Street, Suite 3800 20 Houston, Texas 77002 21 Counsel for Defendants, AMERICAN PETROLEUM INSTITUTE, CHEMICAL 22 MANUFACTURERS ASSOCIATION, NATIONAL PETROLEUM REFINERS ASSOCIATION and 23 TEXAS CHEMICAL COUNCIL 24 25 4 1 D. ALLAN JONES 2 Orgain, Bell & Tucker 470 Orleans Street 3 Beaumont, Texas 77701 4 Counsel for Defendants, GULF STATES UTILITIES COMPANY, 5 ATLANTIC RICHFIELD COMPANY, QUANTUM CHEMICAL CORPORATION, TEMPLE-INLAND 6 FOREST PRODUCTS CORPORATION, AMOCO CHEMICAL COMPANY, AMOCO CORPORATION, 7 AMOCO OIL COMPANY, ARCO CHEMICAL COMPANY, BASF CORPORATION, CHEVRON 8 CHEMICAL COMPANY, CHEVRON U.S.A., INC., CONOCO, INC., CROWN CENTRAL 9 PETROLEUM CORPORATION, EASTMAN KODAK COMPANY, ETHYL CORPORATION, EXXON 10 CORPORATION, GULF STATES UTILITIES COMPANY, HOECHST CELANESE CHEMICAL 11 GROUP, INC., HUMBLE OIL AND REFINING CORPORATION, LUBRIZOL CORPORATION, 12 MARATHON OIL COMPANY, OCCIDENTAL CHEMICAL CORPORATION, OXY, U.S.A., 13 INC., PHILLIPS 66 COMPANY, PHILLIPS CHEMICAL COMPANY, PHILLIPS PETROLEUM 14 COMPANY, PURE OIL COMPANY, ROHM AND HAAS BAYPORT, INC., ROHM AND HAAS 15 TEXAS, INC., SHELL OIL COMPANY, STAR ENTERPRISE, SUN OIL COMPANY, 16 TEMPLE-INLAND, INC., TENNECO OIL COMPANY, TEXACO CHEMICAL COMPANY, 17 TEXACO CHEMICAL INTERNATIONAL TRADER, INC., TEXACO REFINING & MARKETING, 18 INC., TEXAS CITY REFINING, INC., UNION OIL COMPANY OF CALIFORNIA, UNOCAL 19 CORPORATION, BEAZER EAST, INC., AND BRIDGESTONE/FIRESTONE, INC. 20 21 RYAN A. BEASON Funderburk & Funderburk 22 2777 Allen Parkway, Suite 1080 Houston, Texas 77019 23 Counsel for Defendant, 24 WGM SAFETY CORPORATION, d/b/a WILLSON SAFETY PRODUCTS 25 5 1 ARTHUR R. ALMQUIST Mehaffy & Weber 2 500 Dallas Street, Suite 1200 Houston, Texas 77002 3 Counsel for Defendants, 4 CLEMTEX, INC., B.F. GOODRICH COMPANY, THE DOW CHEMICAL COMPANY, 5 KEENE CORPORATION, OLIN CORPORATION and W. R. GRACE & COMPANY 6 7 EARLE A. HERBERT Alenik & Associates 8 12 Greenway Plaza, Suite 1200 Houston, Texas 77046 9 Counsel for Defendants, 10 BIG THREE INDUSTRIES, INC., and Bowen Tools 11 12 KIMBERLY BISHOP Martin & Herring 13 1302 McGowen Avenue Houston, Texas 77004 14 Counsel for Defendant, 15 FLEXO PRODUCTS, INC. 16 CHARLES KELLY 17 Wayne Davidson & Associates 1900 W. Loop South, Suite 300 18 Houston, Texas 77027 19 Counsel for Defendant, COMPLETE ABRASIVE BLASTING SYSTEMS, 20 INCORPORATED (CABS) 21 D. CRAIG SHEW 22 Smith, Shew & Scrivner 120 E. 14 23 P. O. Box 1373 Ada, Oklahoma 74820 24 Counsel for Defendant, 25 HARWICK CHEMICAL CORPORATION 6 1 STEVEN L. RUSSELL 2 Vinson & Elkins 3700 Trammell Crow Center 3 2001 Ross Avenue Dallas, Texas 75201-2916 4 Counsel for Defendant, 5 U.S. SILICA COMPANY, f/k/a PENNSYLVANIA GLASS SAND CORPORATION 6 7 SCOTT C. WALLACE Haley, Davis, Wren, Bristow & Rasner 8 United Bank Plaza, Suite 300 510 North Valley Mills Drive 9 Waco, Texas 76710 10 Counsel for Defendant, C.P. HALL COMPANY 11 12 LEWIS C. MILTENBERGER DeHay & Blanchard 13 600 N. Pearl Street, Suite 2500 Dallas, Texas 75201-2880 14 Counsel for Defendant, 15 UNION CARBIDE CORPORATION 16 MARTHA CRANDALL COLEMAN 17 Strasburger & Price 901 Main Street, Suite 4300 18 Dallas, Texas 75202 19 Counsel for Defendant, TRAVELERS INSURANCE COMPANY 20 21 FRANK A. POFF Gooding & Dodson 22 300 Texarkana National Bank Building P. O. Box 1877 23 Texarkana, Texas 75504-1877 24 Counsel for Defendant, GREFCO, INC. 25 7 1 RONALD HANCOCK 2 Hays, McConn, Rice & Pickering 1200 Smith Street, Suite 400 3 Houston, Texas 77002 4 Counsel for Defendant, MINE SAFETY APPLIANCES COMPANY 5 6 WILLIAM B. COFFEY, JR. Strong, Pipkin, Nelson & Bissell 7 1400 San Jacinto Building Beaumont, Texas 77701 8 Counsel for Defendant, 9 SPECIALTY SAND COMPANY 10 IN ATTENDANCE: 11 Duncan Stuart 12 Legal Department The Dow Chemical Company 13 14 C. JEAN MINCK, LEGAL ASSISTANT Edwards and Calvert 15 1800 West Loop South, Suite 1500 Houston, Texas 77027-3299. 16 (DRAGO SUPPLY COMPANY) 17 RICK SMITH, CSR 18 Charlotte Smith Reporting, Inc. 235 Orleans, Kyle Building 19 Beaumont, Texas 77701 20 VIDEOTAPE OPERATOR/TECHNICIAN: 21 PAUL ROBICHAU 2190 Harrison Street 22 Beaumont, Texas 77701 23 24 25 8 1 ST I P U LATI O N 2 3 4 IT IS STIPULATED AND AGREED between Counsel 5 for the parties hereto that the deposition of the 6 Witness named herein is taken pursuant to Notice 7 attached hereto. 8 9 10 IT IS FURTHER STIPULATED AND AGREED that 11 the Witness may sign said deposition before any duly 12 authorized and acting Notary Public for the appropriate 13 area in which signature is obtained. 14 15 16 IT IS FURTHER STIPULATED AND AGREED that 17 this deposition, or any part of same, may be used upon 18 the trial of this cause with the same force and effect 19 as if the Witness were present in Court and testifying 20 in person. 21 22 23 IT IS FURTHER STIPULATED AND AGREED that 24 all objections, other than those that relate to the form 25 of the question and responsiveness of the answer, are 9 1 hereby preserved and may be made at the time any 2 testimony herein is sought to be offered upon the trial 3 of this cause, despite no objection having been made at 4 the time the testimony was taken. 5 6 7 IT IS FURTHER STIPULATED AND AGREED that 8 Rick Smith, a Certified Shorthand Reporter in and for 9 the State of Texas, may act as a Certified Shorthand 10 Reporter in and for the State of Colorado for purposes 11 of swearing the Witness in this deposition. 12 13 14 IT IS FURTHER STIPULATED AND AGREED that 15 the original deposition will be given to Darren Lee 16 Brown for safekeeping and for use at the time of trial. 17 18 19 20 21 22 23 24 25 10 1 INDEX 2 VIDEO DEPOSITION OF JOHN E. HILL 3 4 September 24, 1992 5 PAGE: 6 7 8 EXAMINATION BY MR. HOBSON 11-109 9 EXAMINATION BY MR. BLANKS 109-158 10 11 RE-EXAMINATION BY MR. HOBSON 159-162 12 RE-EXAMINATION BY MR. BLANKS 163-171 13 RE-EXAMINATION BY MR. HOBSON 172-179 14 15 EXAMINATION BY MR. ALMQUIST 179-183 16 17 RE-EXAMINATION BY MR. HOBSON 183-184 18 19 20 21 22 23 24 25 11 1 JOHN ELWOOD HILL, 2 having been duly sworn, testified as follows, to-wit: 3 EXAMINATION BY MR. HOBSON: 4 Q. Good morning, Mr. Hill. 5 A. Good morning. 6 Q. My name is Herschel Hobson, and I represent 7 a number of people who have filed a lawsuit against 8 among others Dow. 9 As I was saying, Mr. Hill, my name is 10 Herschel Hobson; and I'm one of the attorneys that 11 represents a number of people who have filed a lawsuit 12 against Dow. And I understand that you have worked for 13 Dow in the past; is that right? 14 A. That's right. 15 Q. Would you introduce yourself, please, sir, 16 to the group here. 17 A. I'm John Hill. Do you need more 18 information than that? 19 Q. Do you have a middle name, Mr. Hill? 20 A. Elwood. 21 Q. And where do you reside, sir? 22 A. In Boulder, Colorado. 23 Q. Would you give me just a very brief summary 24 of your work history after you finished your formal 25 education. 12 1 A. I went to work for Dow in Rocky Flats in 2 March of 1953, as a radiation monitor. And about 3 December of '53, they made me a - what they called a 4 junior scientist, which was really a salaried radiation 5 monitor. And I was in that for about a year, and then 6 became what would now be a foreman out there. It was 7 still called a scientist in the health physics 8 department. 9 I worked in all of the buildings for a very 10 short time, ending up eventually in Building 444, which 11 was a depleted uranium facility. And I worked there 12 from about '54 or '55 up until 1961. 13 Then in December of 1961, I became the 14 plant industrial hygienist. And I remained that until 15 April of 1983, when I became manager of environmental 16 and occupational health. And I kept that job for a year 17 until I retired in May of '84. 18 Q. Have you done any professional work since 19 your retirement, sir? 20 A. No, except I have gone back to the plant a 21 few times to look through some records and stuff for 22 them. 23 Q. May I ask you, Mr. Hill, have you retained 24 any counsel for the deposition here today? 25 A. No. 13 1 Q. And have you been employed by anyone to be 2 a consultant in this litigation? 3 A. No. 4 MR. ALMQUIST: Well, Herschel, 5 while he has not retained counsel, of 6 course, he's a former Dow employee. 7 And as Dow's attorneys, both 8 Mr. Stuart and I are here in that 9 capacity with Mr. Hill. 10 MR. HOBSON: I understand. 11 (By Mr. Hobson) 12 Q. What was your formal education, Mr. Hill? 13 A. I have a Bachelors degree in Zoology from 14 the University of Colorado. 15 Q. And that was here in Boulder? 16 A. Yeah. 17 Q. May I ask you, sir, when you completed that 18 B.S. degree? 19 A. '52. 20 Q. So, you went directly from your 21 undergraduate program to work for Dow? 22 A. I had some odd jobs here in Boulder until I 23 went to work out there. It was just starting up in '52. 24 I worked for the street department and stuff like that 25 until I went out there. 14 1 Q. How is it that you got the job out at Rocky 2 Flats? 3 A. I got it I think through the referral 4 service or placement there at the university. I think 5 they gave them my name as being a possibility, and they 6 called me out for an interview. 7 Q. What kinds of training have you received in 8 the area of industrial hygiene? 9 A. Mainly through the Industrial Hygiene 10 Association, their workshops, reading material, things 11 like that; their conventions. 12 Q. Have you attended any formal training 13 programs, short courses of that kind that you can 14 recall? 15 A. Short courses in connection with the 16 meetings, a one-day session or a half-day session, yeah. 17 I can't tell you what they are, but we did that 18 routinely. 19 Q. But you don't recall ever attending any 20 Public Health Service training programs or NIOSH 21 training programs? 22 A. No. 23 Q. Is there any of the work at Rocky Flats 24 that is for some reason a government secret of some 25 kind? 15 1 A. Most of it is, yes, sir. 2 Q. I want to make sure today that if we even 3 get close to any area that you feel is covered by some 4 sort of official secrets, you let me know so we don't 5 run a muck of the government in any way. 6 A. Will do. 7 Q. Thank you. Can you tell me the general 8 type of activity that was undergoing - that was in 9 progress at Rocky Flats while you worked there? 10 A. The plant itself was involved in plutonium 11 work, uranium work, beryllium work, machining and 12 foundry operations, some chemical operations, that sort 13 of thing. 14 Q. And what was your job prior to getting to 15 be the plant industrial hygienist? Would you tell me 16 generally what you did. 17 A. I directed the activities of four or five 18 radiation monitors in the - essentially in the depleted 19 uranium machining and foundry operation building. 20 Q. Would it be accurate to say that really 21 while you were doing the radiation monitoring work, you 22 had little contact with industrial hygiene? 23 A. Very little, yes, sir. 24 Q. And I take it most of the training that you 25 were receiving up until you got into industrial hygiene 16 1 then had to do more with health physics and measuring 2 radiation -- 3 A. (Interrupting) Yeah. 4 Q. --- and other kinds of hazards? 5 A. That's true. 6 MR. ALMQUIST: Mr. Hill, to make 7 the deposition go a little bit better, 8 let Mr. Hobson finish talking 9 completely before you start talking. 10 (By Mr. Hobson) 11 Q. Also it's easier for this gentleman to get 12 everything down. 13 How is it that you got involved in the 14 industrial hygiene program out at Rocky Flats for Dow? 15 A. I don't know. They had had I think three 16 different people; one left; one took another job. And 17 it was in the safety department. And for some reason 18 they decided it should be in with health physics, in the 19 health protection. And my boss just said, "You are 20 going to be the industrial hygienist from now on." What 21 he based that on, I never asked him. 22 Q. So, one day you walked in and they said you 23 are it? 24 A. Right. 25 Q. Were there other industrial hygienists then 17 1 at Rocky Flats for Dow prior to you taking this job? 2 A. Yes. 3 Q. Who were those folks? 4 A. First one -- Well, there were two. And I 5 don't remember who was first. El Ray Johnson is one of 6 them. Goodwin - I think his name was Darrell. And Tim 7 Hicks was the one I took over from. 8 Q. You said El Ray. Is that -- 9 A. (Interrupting) E-l capital R-a-y. 10 Q. And did you understandthat Mr. Johnson, 11 Mr. Goodwin and Mr. Hicks were professional industrial 12 hygienists? 13 A. Not really. Goodwin was, and he left - got 14 a fellowship I think at Pittsburgh and then never came 15 back. He went somewhere else. ElRay was in the health 16 physics department. I don't know what his background 17 was. I don't know if he was a chemist or what. Tim 18 Hicks was a safety engineer. 19 Q. And you took over industrial hygiene from 20 Mr. Hicks then in December of '61? 21 A. Yes. 22 Q. What -- When you took over industrial 23 hygiene in December of '61, what kinds of industrial 24 hygiene problems did you see facing you that you chose 25 to deal with? 18 1 A. I don't remember any specific problems. 2 Probably some noise problems, some lumination, solvents. 3 Beryllium really was the biggest one. We had just 4 started a beryllium operation shortly before then. And 5 that was the biggest operation we were concerned with. 6 Q. And that was from breathing the particulate 7 beryllium into the air by the workers handling the 8 beryllium materials? 9 A. Yes, sir. 10 Q. Was the use of thermal insulation materials 11 something that occurred at Rocky Flats while you were 12 there? 13 A. There was thermal insulation there that 14 was - I think was put in when the plant was built. Yes, 15 it was there on mainly steam pipes. 16 Q. Since I've never been to Rocky Flats and 17 have no idea of how the configuration was set up, would 18 you tell us how steam pipes would have been used at 19 Rocky Flats where the thermal insulation was used. 20 A. Each of the major production buildings back 21 then had their own steam boilers. The steam was piped 22 through the building. The -- What we called the "lump 23 some area," which was mainly administrative buildings 24 and stuff, had a central steam generating plant; and 25 pipes suspended overhead that distributed the steam to 19 1 the buildings. 2 Q. In the production areas, how was steam 3 utilized? 4 A. Heating air. I think it was probably used 5 some in - in process heat. But mainly I think was just 6 for heating the buildings. 7 Q. Do you have any recollection of what size 8 boilers were being used at Rocky Flats? 9 A. No. 10 Q. Now, Rocky Flats is a facility that is 11 owned by the United States Government? 12 A. Yes, sir. 13 Q. And Dow was a contractor to the United 14 States Government? 15 A. Yes, sir. 16 Q. Did Dow operateall of Rocky Flats, or were 17 there other contractors working there with Dow as you 18 understand it? 19 A. Rocky Flats ran the plant. But as far back 20 as I can remember, there were always some construction 21 companies - there were almost always construction 22 companies on the plant. 23 Q. Dow ran theplant, but therewere 24 contractors that came in to do work at the facility? 25 A. Mainly new construction, yes. 20 1 Q. Was there a maintenance crew that were Dow 2 employees? 3 A. Yes, sir. 4 Q. In that maintenance crew was there a 5 category that did insulationwork? 6 A. Not as such, no. 7 Q. What is your recollection of who would have 8 been doing any work that would have involved thermal 9 insulation? 10 A. Had any been done, it would have been 11 pipefitters. 12 Q. Was there a crew of pipefitters that were 13 Dow employees? 14 A. Yes. 15 Q. Can you recallabout how many that would 16 have been? 17 A. No, sir, I can't. 18 Q. Are we talking 50 people or less than 50 or 19 100? 20 A. Somewhere around there. I would say 30 or 21 40 if I had to guess, but I really can't say. 22 Q. Certainly we are not talking about a couple 23 of 100 people; that's too many? 24 A. Not pipefitters. There may have been a 25 couple of hundred in the maintenance group itself, but 21 1 the pipefitters were just a part of that. 2 Q. Would the pipefitter category of Dow 3 employee as you understand it have been the person who 4 would have put thermal insulation on pipes as well as 5 take it off if it needed to be done? 6 A. If it needed to be done, yes. Not new 7 pipe. If they had to repair a pipe, they might have to 8 remove some insulation and put it back on. But I don't 9 recall -- Most of the pipe was clad in aluminum 10 coverings. And I don't remember any work along that 11 line. There could have been, but I don't know. I don't 12 remember. 13 Q. The organization that you were in at Rocky 14 Flats after you became the plant industrial hygienist, 15 you said that was in health physics? 16 A. I was in the health physics group, yes. 17 Q. And to whom did that group report to at 18 Rocky Flats? 19 A. They reported to a director. There was a 20 plant manager and an assistant plant manager. And it 21 varied at times from seven to ten directors. And each 22 of those directors had a group. One of them would have 23 all of the health and safety group, which would include 24 nuclear, safety, health, physics, medical. Another 25 group might be budget people. Another group was 22 1 maintenance. One was production. We had -- We had a 2 director that was over health and safety. 3 Q. And then the director would report to -- 4 A. (Interrupting) To the plant manager. 5 Q. --- the plant manager? After you became 6 the plant industrial hygienist, during your tenure with 7 Dow at Rocky Flats, did you ever get any help, 8 industrial hygiene help? 9 A. From Dow? 10 Q. No. No. Any other folks who worked with 11 you out there at Rocky Flats who were industrial 12 hygienists? 13 A. We had a couple of radiation monitors, 14 hourly people assigned to us to collect routine air 15 samples and do some of the very routine work at first. 16 Later we added a chemist. Later we added a physicist. 17 And then later when they became available, we hired 18 industrial hygienists that had a degree in industrial 19 hygiene. And when I left in '84, I think there were 20 five of us. 21 Q. You -- 22 A. (Interrupting) Plus we still had the hourly 23 people and the clerical people, that sort of thing. 24 Q. Who else worked with you in industrial 25 hygiene at Rocky Flats? 23 1 A. Al Voight was the chemist. 2 Q. And would you know where Mr. Voight is 3 today? 4 A. He's in Boulder. 5 Q. Is he retired or still working? 6 A. Yeah. Oh, yeah, he's retired. 7 Q. And, so, he was a chemist but worked in the 8 industrial hygiene group? 9 A. He worked in the industrial hygiene group, 10 but his main duties were sanitation, food service, water 11 treatment, this sort of thing. He kept an eye on that. 12 Q. And any of the other folks that you would 13 have ever -- 14 A. (Interrupting) JohnHandschy was the 15 physicist. 16 Q. Could you spell his last name, please. 17 A. H-a-n-d-s-c-h-y. 18 Q. And he was your healthphysicist? 19 A. Yeah. It -- Well, no, he wasn't a -- I'm 20 sorry. He wasn't a health physicist. He was a 21 physicist. And he came into the group, and he tended 22 to -- He would take care of nonionizing radiation 23 surveys, things along - more along the physical line. 24 Al Voight did the sanitation. If we had a chemical 25 problem, he would tend to gravitate towards that until 24 1 later until we got - hired degreed health physicists and 2 branched out. 3 Q. And about when would you say this was that 4 you got degreed health physicists and began to branch 5 out? 6 A. Oh, mid to late '70's. I don't recall when 7 we got the first one. John Handschy came up to our 8 group about - I would say around 1972. And it was 9 sometime after that. 10 Q. And after you began to branch out and get 11 the degreed people, do you recall the folks that came on 12 board then? 13 A. Mike Richen would have been I think the 14 first one. 15 Q. Could you spell his last name. 16 A. R-i-c-h-e-n. Sharon Reffel, R-e-f-f-e-l. 17 Steve Saddler, but he was only there about a year before 18 I left. 19 Q. What washis first name? 20 A. Steve. 21 Q. Steve. 22 A. S-a-d-d-l-e-r. I can't think of any others 23 just offhand. 24 Q. What did you understand Mr. Richen's 25 background was? 25 1 A. As I recall he had a degree in industrial 2 hygiene. And he had worked I think at Fitzsimons Army 3 Hospital as an industrial hygienist before he came out 4 to the plant. 5 Q. Was he in the U. S. Army then? 6 A. No. No, he was a civilian employee. 7 Q. And what would have been Mr. Richen's 8 duties after he joined Dow? 9 A. Any industrial hygiene activities that we 10 might have been involved in. 11 MR. ALMQUIST: Herschel, I want 12 to make sure that we are clear here 13 because he has taken you all the way 14 up until almost the time he was 15 leaving with Mr. Saddler being there 16 just a year. Dow did not operate this 17 facility that length of time. And, 18 so, we are talking -- When was it that 19 Rockwell took over the operation -- 20 THE WITNESS: (Interrupting) '75. 21 MR. ALMQUIST: So, after '75 we 22 would be talking about people that are 23 not employed by Dow but employed by 24 Rockwell. 25 A. I think probably Voight and Handschy and I 26 1 were probably the only three that worked for Dow in our 2 group. 3 (By Mr. Hobson) 4 Q. Okay. 5 A. I don't remember for sure just when Richen 6 came in, but it was in the mid to late '70's. 7 Q. So, to make sure we have the facts as 8 correct as we can, the government changed the contractor 9 that was operating the Rocky Flats facilities? 10 A. Yes, sir. 11 Q. And it wentfrom Dow toRockwell 12 International? 13 A. Yes, sir. 14 Q. And rather than stay with Dow and go with 15 their organization, you and the other folks, the 16 industrial hygiene group that were there in 1975, stayed 17 on as Rockwell International employees? 18 A. Yes, sir. 19 Q. How doesthat affect your retirement 20 situation? 21 A. Not at all. 22 Q. They just flanged you up and put you into 23 Rockwell International's retirement program? 24 A. I don't know if it's Rockwell's. It was 25 D.O.E. And all the benefits stayed the same as though 27 1 we had continued on with Dow. 2 Q. Were your benefits then set by the 3 Department of Energy as you understood it, or were you 4 considered a Dow employee? 5 A. I think it was probably a - how do I say 6 this - an agreement between Dow and the plant operator. 7 It was negotiated. I don't know, but I think this from 8 day one was a negotiated thing. 9 Q. So I'm clear, before 1975, while you were 10 working out there, did you consider yourself an employee 11 of Dow? 12 A. Yes, sir. 13 Q. Did you have any contacts after you became 14 the plant's industrial hygienist in 1961 with any of the 15 industrial hygiene people from Dow? 16 A. Yes. 17 Q. How about before 1961? 18 A. Indirectly. I think some of their 19 industrial hygiene people had been out to the plant and 20 I had met them. There was nothing official. They 21 weren't here to see me or here to see my bosses, but I 22 think we did meet them. 23 Q. Do you recall any of the names of the early 24 Dow industrial hygiene people who came to Rocky Flats? 25 A. Don Irish and Harold Hoyle are the two that 28 1 I remember. 2 Q. Prior to you becoming the plant industrial 3 hygienist, what would have been the reason that you 4 understood that you would need to meet these folks, 5 Mr. Irish and Mr. Hoyle? Just to get acquainted and say 6 hi? 7 A. I think it was just that they were out here 8 to become familiar with the plant itself. And probably 9 as a courtesy I was introduced to them. 10 Q. Did you have any kind of professional 11 exchange with them, or was it more just being polite and 12 saying hello and being friendly? 13 A. I don't recall that I did, no. 14 Q. Were you involved in any of the technical 15 or professional discussions that your bosses were having 16 with Mr. Hoyle and Mr. Irish? 17 A. I don't recall that I was, no. 18 Q. I think you told me that later on after you 19 became the plant industrial hygienist some of the 20 radiation monitors were used to collect industrial 21 hygiene samples. Is that something you ever did while 22 you were a radiation monitor? 23 A. No. 24 Q. You stuck strictly with measuring ionizing 25 radiation? 29 1 A. The only contact that we would have with 2 the industrial hygienists, if they had a problem, they 3 might borrow one of my radiation monitors. And to help 4 them out, I would carry the equipment or something like 5 this. But as far as being part of it, no. 6 Q. Are you a certified industrial hygienist? 7 A. I was, yes. It's expired now. 8 Q. But you've retired. So -- 9 A. (Interrupting) Yes. 10 Q. When did you become certified? 11 A. 1969. 12 Q. And was that by examination? 13 A. Yes, sir. 14 Q. And in the comprehensive practice? 15 A. Yes, sir. 16 Q. Were there any other certified industrial 17 hygienists who were Dow employees at Rocky Flats? 18 A. I was the first, but the others 19 eventually -- I think almost all of them became 20 certified. I know John Handschy was. This again was 21 after Dow left. I think I was the only one when Dow was 22 there probably. 23 Q. Would you know if Mr. Irish or Mr. Hoyle 24 became certified? 25 A. It seems to me like they were I want to say 30 1 "grandfathered." I think they are on the list. 2 Q. After you became the plant industrial 3 hygienist and while it was Dow, being the operator and 4 being your employer, did you meet any other industrial 5 hygiene personnel who were working somewhere else for 6 Dow? 7 A. Yes. 8 Q. Can you remember any of those people for 9 me? 10 A. Larry Silverstein. 11 Q. I'm sorry? 12 A. Larry Silverstein. 13 Q. Harry? 14 A. Larry. 15 Q. Larry. 16 A. Ed Schneider, Arnie Schaffer, Charlie 17 Powell, Jack Peterson. And there was some woman in the 18 group, but I can't remember what her name was at the 19 time. 20 Q. I understand that Mr. Hoyle worked at 21 Midland. He was located at Midland? 22 A. Yes. 23 Q. Was Mr. Irish at Midland as far as you 24 knew? 25 A. Yes. 31 1 Q. How about Mr. Silverstein? 2 A. Yes. 3 Q. Midland? 4 A. Yes. 5 Q. Mr. Schneider? 6 A. Yes. 7 Q. Mr. Schaffer? 8 A. Yes. 9 Q. Mr. Powell? 10 A. Yeah. 11 Q. And Mr. Peterson? 12 A. Yes. 13 Q. And the lady whose name we don't have, she 14 was also from Midland? 15 A. Yes. 16 Q. Did you ever come to meet any of the 17 industrial hygienists for Dow if there were any from any 18 other locations? 19 A. No, I don't think so. 20 Q. What would have been happening between you 21 and these industrial hygienists at Midland while you 22 were a Dow employee at Rocky Flats? 23 A. They were - were mainly available to help 24 me if I needed help. 25 Q. Would it be accurate then to call them a 32 1 resource you could go to? 2 A. Yes. 3 Q. They were available for consultation? 4 A. Yes, sir. 5 Q. Was there a program as you understood it 6 within Dow that allowed for a circulation of industrial 7 hygiene information among the industrial hygienists? 8 A. I don't recall that there was. 9 Q. There was no program thatyou remember 10 where Mr. Hoyle or someone in his staff in Midland would 11 send you bulletins or periodic memoranda saying, "Here 12 is what's going on other places. Here are things to 13 look at"? 14 A. I don't recall any formal program that way. 15 Q. You yourself and I guess later on your 16 staff would have been doing industrial hygiene survey 17 work? 18 A. Yes, sir. 19 Q. Did you reduce yoursurveys towriting? 20 A. To a great extent, yes. 21 Q. And would you have circulated those survey 22 reports outside of Rocky Flats? 23 A. No. 24 Q. Why was that? 25 A. I don't know who we would have circulated 33 1 them to. 2 Q. For instance to Mr. Hoyle? 3 A. No. 4 Q. You didn't see any reason to send him your 5 work? 6 A. No. 7 Q. How about Mr. Hoyle or some of the other 8 industrial hygienists at Dow, would you have ever been 9 given copies of their survey work that they did at other 10 locations? 11 A. I don't recall that we ever had any. 12 Q. Were there any periodic meetings that 13 you-all would have as a group, industrial hygiene group, 14 get together and exchange ideas, exchange technical 15 information, coordinate programs -- 16 A. (Interrupting) With Dow? 17 Q. Yes, sir. 18 A. No. 19 Q. Well, it sounds like - and tell me if this 20 is wrong - that you-all were pretty much out there by 21 yourselves and did what you needed to do; and the folks 22 at Midland were there, but if you didn't call, they sort 23 of stayed away and minded their own business? 24 A. That's pretty much the way it was. 25 Q. Now, being a government contractor, I take 34 1 it that from time to time there would be folks from the 2 government coming in looking over your shoulder? 3 A. Yes. 4 Q. Were there industrial hygienists from the 5 government who were involved with the Rocky Flats 6 operation while it was being operated by Dow? 7 A. Yes. 8 Q. Do you recall any of those folks? 9 A. George Carroll is one name that comes to 10 mind. 11 Q. Know him well. 12 A. Pardon? 13 Q. I know him well. 14 A. Do you? 15 Q. Yes, sir. A classmate of mine. 16 A. There was some others. Jerry Shaykin - he 17 used to come up. He was more of a sanitarian, but he 18 was involved in industrial hygiene. 19 Q. Could you spell his name for us. 20 A. S-h-a-y-k-i-n. 21 Q. And was he also in Albuquerque with 22 Mr. Carroll? 23 A. Yes. He was -- He's been retired quite a 24 while. He may have been before George. I don't 25 remember if they overlapped or not. There were a couple 35 1 of others. I can't think of their names right offhand. 2 Reinert - Bruce Reinert. 3 Q. Is that R-h -- 4 A. (Interrupting) R-e-i-n-e-r-t, I think. 5 Q. And was Mr. Reinert also out of Albuquerque 6 with D.O.E.? 7 A. Yes, And there was another one. I can't 8 remember what his name was. He was there for a short 9 time, but I can't tell you his name right now. 10 Q. Did the Department of Energy tell you how 11 to do your job or -- 12 A. (Interrupting) Yes. 13 Q. --- did they come in and look over your 14 shoulder and see if you were doing it right? 15 A. Both. 16 Q. So, you had bothan independent activity 17 and some direction from D.O.E.? 18 A. Yes, sir. 19 Q. Now, it's my understanding thatthe 20 Department of Energy had something to do with your 21 operations for at least a period of time at Rocky Flats; 22 is that right? 23 A. Yes. 24 Q. Did the Atomic Energy Commission ever have 25 anything to do with Rocky Flats to your knowledge? 36 1 A. Yes. 2 Q. Were there people from the Atomic Energy 3 Commission who had to do with health matters such as 4 industrial hygiene that you dealt with? 5 A. Yes. 6 Q. Would you recall any of those names? 7 A. Harold Grow was the one back in the '50's 8 and probably the '60's. 9 Q. Could you spell his lastname. 10 A. G-r-o-w, I think. 11 Q. Where was Mr. Grow stationed? 12 A. He was at Rocky Flats. 13 Q. So, hewas actually permanently assigned as 14 an Atomic Energy Commission, A.E.C. employee at Rocky 15 Flats? 16 A. Yes, sir. 17 Q. What is your understanding of his job? 18 A. I am not too sure. They seemed to handle 19 construction safety. This is just the impression I got 20 back then. They then were available if we needed some 21 information usually from D.O.E. We could go through 22 them and get it quicker then directly. Just an overall 23 health and safety overview. 24 Q. Anyone else that you can recall from 25 A.E.C.? 37 1 A. Jim Stearns, S-t-e-a-r-n-s, I think; and 2 Gary Leitz. I don't know if it's L-e-i-t-z or 3 L-i-e-t-z. I think it's L-e-i-t-z. 4 Q. Now, was there a time when the Atomic 5 Energy Commission had oversight of Rocky Flats and then 6 it became D.O.E.'s oversight, or was it joint? 7 A. It was A.E.C. originally, and they became 8 ERDA. And ERDA became D.O.E. 9 Q. While it was the Atomic Energy Commission, 10 would you have ever come across the name Merrill 11 Isenbud? 12 A. I've heard the name. I don't know him. 13 I'm not familiar with him, but I have heard the name. 14 Q. You don't recall having met him? 15 A. No. 16 Q. When it came time to determine a sampling 17 regime for evaluating health hazards say at Rocky Flats, 18 who would have the primary decision-making authority in 19 that regard; would that be you or would that be the 20 government's oversight? 21 A. If it were radioactive material, that would 22 be the health physics group. If it were nonradioactive 23 material, I guess it would have been mine. 24 Q. So, whoever the government oversight 25 industrial hygienist was, would that person come in and 38 1 say, "Okay, Mr. Hill, this year you are going to take 6 2 samples for this material in this location, and you are 3 going to take 15 samples for this material in that 4 location"? Or would you make those decisions yourself? 5 A. They would give us guidance. I don't think 6 they would be that specific. But they'd say, "I think 7 you ought to look into this or look into that." But as 8 far as giving us very specific instructions, I don't 9 recall that they did that. 10 Q. So, the day-to-day activities were 11 basically in your and Dow's control? 12 A. Yes, sir. 13 Q. When it came time to setting practices 14 work practices, which were in the safety and health area 15 such as respiratory protection, personal protective 16 equipment, clothing, that sort of thing, who would make 17 the call for that kind of protection? 18 A. We -- We would make the decision I think, 19 but they had to concur with it. 20 Q. And was it a matter -- 21 A. (Interrupting) If we wanted to change 22 something that was in place, we usually had to check 23 with them and make sure they agreed with it. 24 Q. One of the things this lawsuit deals with 25 is asbestos. And I'm sure that from your early days of 39 1 working in industrial hygiene you recognized that 2 asbestos had the potential to cause certain health 3 effects. 4 A. I don't know if you would say early days or 5 not. I don't recall when we became aware of it. 6 Q. When do you recall at Rocky Flats you 7 having a time more or less fixed in your mind that 8 asbestos became a health issue? 9 A. I don't know. I don't recall when we might 10 have become aware of it. We didn't have any asbestos 11 problems. And I don't know -- I can't set a specific 12 date as to when we said, "Oh, asbestos could be 13 harmful." 14 Q. You say you didn't have any asbestos 15 problems. Do you recall taking air samples for 16 asbestos? 17 A. Not in the early days. We may have in 18 oh, later on. 19 Q. Later on being? 20 A. Oh, in the '70's maybe, late '70's. But I 21 don't remember ever having - even thought probably about 22 asbestos in the early days out there. 23 Q. And by the "early days," you mean before 24 the late '70's? 25 A. I'm talking '60's, early '70's, '50's. 40 1 Q. Was Rocky Flats a facility that was covered 2 by the OSHA standards as you understood it? 3 A. By the what standards? 4 Q. OSHA, Occupational Safety and Health 5 Administration. 6 A. Yes, we were -- We were required to abide 7 by those unless there was a more restrictive control. 8 Q. Was that from the beginning, or was that by 9 executive order later on? 10 A. Here again, I don't remember when this came 11 in. All I remember is it seems forever that we were to 12 abide by acceptable standards let's put it that way, 13 common standards. If there was a more restrictive 14 standard, then we were required to go by that. 15 Q. Were you the person, being the plant 16 industrial hygienist, who would have been involved in 17 setting or reviewing at least practices for personal 18 protective equipment for employees at Rocky Flats? 19 A. For nonradioactive protection mainly, yes. 20 Q. And if we are talking about asbestos, that 21 would fall under the category of nonradioactive? 22 A. If it was there, yeah. 23 Q. Do you know if the thermal insulation 24 materials that were used on the boilers and steam pipes 25 contained asbestos? 41 1 A. Not with certainty. I don't know. Some of 2 them may have. Some may not. 3 Q. Do you have any recollection of ever having 4 that question put to you or ever thinking of that 5 question and getting an answer to it? 6 A. No, I don't recall. 7 Q. So, in all the time that you were at Rocky 8 Flats, would it be accurate to say that you don't ever 9 remember anybody taking an asbestos air sample when 10 somebody was handling thermal insulation materials? 11 A. I don't recall that we did. 12 Q. Would you remember what the practices were 13 for the pipefitters when they were handling thermal 14 insulation material as far as personal protective 15 equipment goes? 16 A. I -- You know, I really don't recall them 17 ever handling it. 18 Q. You told me earlier that it would have been 19 their job to handle it. 20 A. It would have if there had been work to do. 21 But I can't think of a specific instance where they were 22 working with it. 23 Q. Are you saying that you can't think of any 24 time when they would have ever done it, or you can't 25 remember ever seeing them do it? 42 1 A. I can't remember ever knowing that they 2 were doing it or seeing it. Either way you want to put 3 it, yeah. 4 Q. Do you ever recall having any conversations 5 was Mr. Hoyle or anybody else out at Dow's operations 6 you told me about earlier about the need for people 7 handling thermal insulation products to wear respiratory 8 protection? 9 A. No, I don't recall the subject ever coming 10 up with it. 11 Q. Do you ever recall having any conversations 12 with any of Dow's industrial hygienists about asbestos 13 and health hazards at all? 14 A. No. 15 Q. Did you ever become aware that in the 16 1950's Mr. Peterson and Mr. Hoyle had done air sampling 17 for people handling thermal insulation materials at 18 Midland and any of the results of that work? 19 A. I don't remember ever hearing of it, no. 20 Q. When you became the plant industrial 21 hygienist, did you become aware that there were 22 threshold limit values established by the American 23 Conference of Governmental Industrial Hygienists? 24 A. Yes, sir. 25 Q. Had you known about those T.L.V.'s earlier 43 1 than 1961, or can you recall? 2 A. I don't -- I don't remember. 3 Q. But shortly after you became the plant 4 industrial hygienist, you are certain you became aware 5 of T.L.V.'s? 6 A. Yes, sir. 7 Q. Would you recall that one group of T.L.V.'s 8 dealt with mineral dusts? 9 A. Vaguely. 10 Q. And, of course, asbestos is one of the 11 mineral dusts listed there. You would know that now I'm 12 sure. 13 A. I would now, yes. 14 Q. Was asbestos used at Rocky Flats before 15 1975 in any way to your knowledge, either as a part of a 16 material or asbestos in its need for -- 17 A. (Interrupting) We had as I recall two uses. 18 One was asbestos blankets that the fire department had. 19 The other was asbestos gloves they used for handling hot 20 metal. Those are the only two that I can think of 21 offhand that we had. 22 Q. Were there analytical chemical labs at 23 Rocky Flats? 24 A. Yes, sir. 25 Q. Would you know one way or the other if 44 1 asbestos was used as a filtering agent in the 2 laboratory? 3 A. No, I don't know for certain one way or the 4 other. 5 Q. Having been trained in Zoology, I take it 6 you were required to take some chemistry courses? 7 A. Yes. 8 Q. Do you ever recall using these porcelain 9 funnels in laboratory courses where you would lay down 10 an asbestos blanket and use asbestos as a filtering 11 agent? 12 A. No, I don't remember that. 13 Q. Would you know one way or the other if that 14 procedure was ever done at Rocky Flats? 15 A. I wouldn't know, no, sir. 16 Q. Would you know if there was any maintenance 17 facility for analytical instruments at Rocky Flats 18 analytical instruments used in the analytical 19 laboratories? 20 A. Yes. 21 Q. There was such aninstallation? 22 A. Instrument shop. 23 Q. Yes, sir. 24 A. Uh-huh. 25 Q. Would that instrument shop repair things 45 1 like gas chromatographs? 2 A. I don't know if they would or not. 3 Q. Would you know one way or the other if at 4 Rocky Flats there was any transite type material used? 5 Do you know what I mean by transite? 6 A. We had transite panels. 7 Q. And those transite panels, were they 8 something that would have been handled by carpenters? 9 A. Well, they would have. I think most of it 10 that I was aware of was walls or building that was put 11 up when they were constructed. I don't recall if 12 maintenance worked with them or not. They could have. 13 Q. Wouldn't you expect from time to time that 14 people would have to cut holes in those transite panels 15 to run piping -- 16 A. (Interrupting) It's possible. 17 Q. What about for roofing; was transite 18 material ever used for roofing at Rocky Flats that you 19 recall? 20 A. I don't recall that it was. 21 Q. Were you aware that transite material 22 contained asbestos? 23 A. Yes. 24 Q. And would that go back to your early days 25 as plant industrial hygienist, or can you recall? 46 1 A. No, I don't think so. But I don't really 2 know when it - when I became aware of it. 3 Q. Would you remember if anyone ever did any 4 air sampling for particulate material while cutting 5 transite - I mean at Rocky Flats, air sampling at Rocky 6 Flats? 7 A. I don't recall if we did or not. 8 Q. Based on your experience, can you tell me 9 what kind of fiber concentrations one would expect when 10 cutting transite with power tools? 11 A. No. 12 Q. Would you have any recollection of having 13 any knowledge about what kind of fiber concentrations 14 could be expected when removing thermal insulation 15 containing asbestos? 16 A. No. 17 Q. While you were at Rocky Flats and a Dow 18 employee, did you participate in any either trade 19 association activities or consensus standard setting 20 organization activities? 21 A. No. 22 Q. So, you never were on an A.S.A. or an ANSI 23 standard subcommittee? 24 A. No. 25 Q. Never had anything to do with the Chemical 47 1 Manufacturer Association or the older Manufacturing 2 Chemists Association activities? 3 A. No. 4 Q. Nothing like that at all? 5 A. No. 6 Q. Did you yourself teach any short courses in 7 industrial hygiene outside of Rocky Flats? 8 A. The only thing I taught was a one-session 9 course at the community college on solvents. I taught 10 that two or three times. But that I think that is the 11 only one off site. 12 Q. Was that a full semester course or a short 13 course? 14 A. It was a full semester industrial hygiene 15 course, and they had guests come in and teach the 16 different parts of it. 17 Q. So, you were one of the guest speakers? 18 A. Yeah. 19 Q. And your subject was solvents? 20 A. Yes. 21 Q. And how manysessions would you take to 22 cover the subject of solvents? 23 A. Just one. 24 Q. And that would be approximately how long a 25 session? 48 1 A. Let me take that back. The session was I 2 think maybe two and a half hours. It was an evening 3 class. And then the class would come out to the plant 4 and tour our industrial hygiene facilities and look at 5 our instrumentation and stuff like that for another two 6 or three hours and maybe the next class period. 7 Q. And about what time period would you recall 8 having participated at the community college and 9 teaching the session on solvents? 10 A. Probably late '70's. 11 MR. ALMQUIST: This might be a 12 good place to take a short break if 13 you are getting ready to shift gears. 14 MR. HOBSON: Sure. 15 16 (A SHORT RECESS WAS TAKEN.) 17 18 (By Mr. Hobson) 19 Q. We are back after the break, sir. When you 20 first got out to Rocky Flats working for Dow, what kind 21 of library was available to you for reference? 22 A. They had a plant library in the 23 administration building as I recall. It wasn't too 24 large. I think to the best of my knowledge the previous 25 industrial hygienists had collected some -- We had like 49 1 I said some of the A.I.H. journals that somebody had 2 subscribed to. Other than that, there may have been a 3 couple of industrial hygiene books, Sax or somebody like 4 that that we had. 5 Q. Did you have a copy of Patty's, the early 6 edition? 7 A. I think we had Patty's. I don't know 8 when - what edition it was or when we had it. But the 9 name of the book is familiar. 10 Q. In 1961 after you took over as plant 11 industrial hygienist, I take it you became more familiar 12 with that library as far as industrial hygiene texts 13 were there? 14 A. Yeah, I guess so. 15 Q. Do you recall if you had any publications 16 from any of the trade associations, or the -- For 17 instance, the National Safety Council, did you have 18 their industrial hygiene textbook? 19 A. I don't remember one from the N.S.C., no. 20 Q. Did you get publications from the National 21 Safety Council at Rocky Flats? Did you get the 22 National Safety News, the magazine? 23 A. I didn't, no. 24 Q. Did others at the plant? 25 A. I don't know. We had an industrial safety 50 1 department, which was separate from me. And if it came 2 to anybody, it would come to them I think. 3 Q. And you don't remember one way or the other 4 seeing the National Safety News out there? 5 A. I don't remember seeing one, no. 6 Q. What about publications of the Industrial 7 Hygiene Foundation, did you recall seeing any of those 8 out there? 9 A. The name is familiar, but I can't remember 10 any specific things that I may have seen. 11 Q. Do you have any knowledge one way or the 12 other as to whether or not Dow participated in the 13 Industrial Hygiene Foundation? 14 A. I just don't remember, no. 15 Q. The Industrial Hygiene Foundation published 16 something called Digests. That was a publication of 17 abstracts from various articles published around the 18 country and around the world. Do you ever recall seeing 19 the Industrial Hygiene Foundation Digests? 20 A. No, I'm not familiar with it at all. 21 Q. Did you ever find any of the National 22 Safety Council's safety data sheets that you recall out 23 at Rocky Flats while it was Dow? 24 A. Safety data sheets? I don't recall 25 specifically that we did. 51 1 Q. The Manufacturing Chemists Association at 2 one time published a similar type chemical data sheet 3 for certain materials. Would you ever remember seeing 4 those? 5 A. We had chemical safety data sheets. Where 6 they came from, I don't know. I don't recall what - who 7 published them. 8 Q. Do you recall seeing any publications from 9 the American Petroleum Institute? 10 A. No. 11 Q. Do you recall seeing a publication by a 12 W. C. Hueper, H-u-e-p-e-r, called "Occupational Tumors 13 and Allied Diseases" or something similar to that? 14 A. No. 15 Q. In your work -- And back again talking like 16 you did about the early years, prior to the late 1970's, 17 were you aware as an industrial hygienist that certain 18 chemicals could cause cancer in workers? 19 A. Yes, I guess so. 20 Q. What was your impression of what kind of 21 chemicals could cause cancer in workers in the early 22 years prior to the late '70's? 23 A. I expect the radioactive materials would 24 come to mind first. Other than that, I can't name any 25 just offhand. 52 1 Q. Was there an on-site physician at Rocky 2 Flats? 3 A. On site? 4 Q. Yes. 5 A. Yes. 6 Q. Was this physician also a Dow employee as 7 far as you knew? 8 A. Yes. 9 Q. Who would the physicians have been that you 10 recall and about what time period? 11 A. There was a Dr. Peterson. I think he was 12 the first one that I recall. He was there I think when 13 I went to work out there. And I can't tell you how long 14 he stayed. There was a Dr. Guzak, and I can't even tell 15 you which order they were in. 16 Q. Could you spell that. 17 A. Guzak. G-u-z-a-k. There was a Dr. Hylton; 18 Dr. Moore, M-o-o-r-e. And the one that is there now, I 19 can't think of his name. Joe something. 20 Q. Would you recall the first name of any of 21 the other physicians: Peterson, Guzak, Hylton or Moore? 22 A. Stephen Guzak, I think. 23 Q. S-t-e-p-h-e-n or --- 24 A. (Interrupting) I don't know. Bill Hylton, 25 I think that's H-y-l-t-o-n. I'm not sure. 53 1 Q. Moore? 2 A. Bill Moore. 3 Q. And Dr. Peterson - would you recall his 4 first name? 5 A. No, I don't. 6 Q. What was your understandingof the role the 7 physicians played at Rocky Flats when they were there 8 for Dow? 9 A. Well, I guessI don't understand what you 10 mean. 11 Q. What was their job as you understood it? 12 A. Doctors. To take care of the - any 13 problems that came up healthwise with the employees. 14 Q. Would they be involved with the industrial 15 hygiene activity that you later took over as plant 16 industrial hygienist? Did you coordinate with them? 17 A. Yes, sir. 18 Q. Did that include things like monitoring 19 employees periodically to see if they had any kind of 20 occupational diseases? 21 A. This was done on occasion for radioactive 22 materials routinely, for beryllium routinely, for 23 anything else on an as-needed basis I guess you could 24 say. If we were concerned that somebody may have been 25 exposed, we would contact medical and they would do the 54 1 checking. 2 Q. Was it more the instance that you would go 3 to medical with a problem or would medical come to you 4 and tell you this is what needs to be done? 5 A. It worked both ways. We would tell them if 6 we thought we had a problem. If somebody came up and 7 said I may have done this or may have done that, they 8 would usually tell us. I don't think -- There was no 9 formal written exchange. There was -- We would tell 10 them. They would tell us. 11 Q. Now, your concerns about beryllium, and I 12 guess we talked a little bit about them earlier, but 13 that would be for the condition of berylliosis? 14 A. Yes. 15 Q. And that's considereda pneumoconiosis? 16 A. I don't know. I guess. 17 Q. Was there a monitoring program for 18 workers - a health monitoring program for workers who 19 worked with beryllium and had potential exposure? 20 A. Yes. 21 Q. And how far back in time did that go to 22 your knowledge? 23 A. To my knowledge there was some in place 24 when we started working with beryllium in the late 25 '50's. And as we progressed, I think it got more 55 1 specific and covered a wider area. 2 Q. Would that include a chest X ray of the 3 workers? 4 A. Yes. 5 Q. What about any of the other pneumoconiosis; 6 are you ever aware of chest X rays being given to people 7 who had potential exposure to any of the dusts that 8 could cause any of the other pneumoconioses? 9 A. No. 10 Q. Never for silica? Never for asbestos? You 11 don't ever remember chest X rays being given for 12 potential exposures for those materials? 13 A. No. 14 Q. Did you work with any toxicologists? 15 A. No. 16 Q. Whatwas your understanding of the reason 17 for having the employees have periodic health 18 evaluations in those employees who were working with 19 beryllium? Why would you want to do that? 20 A. I guess I don't quiteunderstand your - 21 See, we did this for all the people - periodic 22 physicals - since they were working with material that 23 could cause some health problems if it got out of hand. 24 Q. As an industrial hygienist, why would you 25 recommend such a thing? 56 1 A. I guess just common sense to me. I don't 2 know. I don't know - don't know quite what you mean I 3 guess. It's -- I guess you could call it a backup to 4 what we were doing. 5 Q. And what were you doing that this backup 6 was a part of? 7 A. For beryllium? 8 Q. Yes, sir. 9 A. Air sampling, beryllium surveys, this sort 10 of thing to control the dust. 11 Q. How frequently would you be doing air 12 sampling for beryllium? 13 A. Continuously. 14 Q. Every day? 15 A. Every day. 16 Q. What was thereason for having to do 17 beryllium sampling every day? 18 A. We wanted to find out if we had any 19 problems. If there was a problem, we could correct it. 20 Q. Were you sampling the same operation every 21 day? 22 A. Yes. 23 Q. What was the operation? And again, I don't 24 want to get into any government secrets. 25 A. Most of it was machining. 57 1 Q. Would you be doing essentially the same 2 kind of machining day after day? 3 A. Yes. 4 Q. And yet you continued tosample? 5 A. Yes, sir. 6 Q. Every day? 7 A. Yes, sir. 8 Q. Did the results seem to have great 9 variation from day-to-day? 10 A. No. 11 Q. Were the results typically within what you 12 thought were acceptable levels? 13 A. Yes. 14 Q. But you stillsampled every day? 15 A. Yes. 16 Q. Would that be because you wanted to make 17 certain that with a material as hazardous as beryllium 18 was, no one was going to be overexposed any longer than 19 was absolutely necessary? 20 A. Yes, sir. 21 Q. To your knowledge doesberyllium cause 22 cancer? 23 A. To my knowledge, no. 24 Q. It causes the lung disease of berylliosis? 25 A. Yes, sir. 58 1 Q. And then the medical monitoring activities 2 were - that was a follow up to the air sampling you were 3 doing or a backup I think you said? 4 A. Yes. 5 Q. Well, if you were taking air samples and 6 you were documenting the exposures every day that 7 employees had, would it be fair to say then that you 8 weren't sure that the levels that you thought were 9 acceptable were low enough to make sure no one ever got 10 the disease? 11 A. No, I don't think I would say that. 12 Q. Well, what would you say? Why would the 13 physical examinations have been necessary if the 14 exposure levels were always low? 15 A. Well, everybody on the plant site got 16 routine physicals. For beryllium workers, plutonium 17 workers, uranium workers, they did a little extra just 18 in case I guess you could say. 19 Q. Just in case the acceptable levels weren't 20 adequate? 21 A. Yeah. 22 Q. Did you get any -- Well, let me try it this 23 way, Mr. Hill. We've taken depositions in this case, 24 and one of the ones we have taken is Mr. Hoyle's 25 deposition. Have you been told that? 59 1 A. Yes. 2 Q. Have you seen his deposition? 3 A. No. 4 Q. How about any of the exhibits to his 5 deposition? 6 A. No. 7 Q. Have you been told that anybody else has 8 been deposed in this litigation besides Mr. Hoyle? 9 A. I guess they were going to take another one 10 next week. But I think that's the only one that I know 11 of. 12 Q. This is an exhibit from Mr. Hoyle's 13 deposition that I've got here. It's Exhibit 1. And it 14 several pages. But one of the parts of Exhibit 1 to 15 Mr. Hoyle's deposition where it starts on page - it's 16 stamp numbered 000003, is a document that has as its 17 heading the Biochemical Research Department, The Dow 18 Chemical Company, Midland, Michigan, Data Sheet of 19 Properties, Health Hazards and Precautions for Safe 20 Handling of Materials. And it appears to be a form, and 21 it's several pages. Have you ever seen that form 22 before? (Tendering) 23 A. (Reviewing) Yes. 24 Q. What occasion would you have had to see 25 that form? 60 1 A. We had these on file down at the plant - a 2 file of them for different materials. 3 Q. What time period would we be talking about, 4 sir? 5 A. I don't know. 6 Q. Could it be back in the early '60's? 7 A. I don't remember at all. 8 Q. That particular one that you are looking at 9 there, which is for asbestos 7-M, I think it goes back 10 to 1958. It's dated on the next day, I believe - maybe 11 two pages. 12 A. Yeah. 13 Q. But would you recall seeing this form at 14 the plant in the '60's at least? 15 A. I couldn't say when I first saw them. 16 MR. ALMQUIST: Are you talking 17 about this particular form on - or 18 the -- 19 MR. HOBSON: (Interrupting) The 20 form. The format for the form. 21 MR. ALMQUIST: The format of the 22 form. Okay. Fine. 23 (By Mr. Hobson) 24 Q. What, sir, did you understand to be the 25 this group, the research chemical or whatever it is 61 1 there at the top -- 2 A. (Interrupting) Chemical research? 3 Q. Yes, sir. What did you understand their 4 activity to be? 5 A. They were doing as far as I recall research 6 on Dow products I think aimed more probably at the 7 toxicity of the materials or the possible toxicity of 8 the materials. 9 Q. Can you recall about when you became 10 familiar with the existence of this group and its work 11 at Dow? 12 A. Well, I was familiar with it in 1962. 13 Before then I don't know. 14 Q. Did something happen in '62 that gave you 15 this awareness? 16 A. I was in Midland with their group in the 17 Fall of '62. 18 Q. What was that occasion? 19 A. They had me go up there to - I think it was 20 at Harold Hoyle's instigation - probably to see what 21 they had; how they could help us if we needed help; what 22 they had; what was available if we needed it in the way 23 of information and this sort of thing. 24 Q. Sort of an orientation program? 25 A. Yeah. 62 1 Q. And Mr. Hoyle would have been meeting with 2 you then and taking you around and showing you their 3 capabilities and what kinds of activities they had taken 4 on in the past? 5 A. Actually I spent most of the time with 6 those industrial hygienists because they went out and 7 did their - their field work. 8 Q. And that was Mr. Silverstein and all those 9 you told me about earlier? 10 A. Yes, sir. 11 Q. You say that when they went out and did 12 their field work, you are talking about actually going 13 into the Dow plants in the Midland area where they were 14 taking air samples and doing surveys? 15 A. Yeah, I don't remember if they were taking 16 air samples. They could have been. But whatever came 17 up to help train me. 18 Q. And how long did you stay up there for that 19 orientation? 20 A. Three weeks. 21 Q. You don't remember anything coming up in 22 that three-week period that dealt with asbestos? 23 A. I don't remember the word ever coming up, 24 no. 25 Q. This particular form that we are looking at 63 1 here from Mr. Hoyle's deposition, did you have any 2 particular name for it? I mean I want to make sure we 3 use something that we are communicating with. 4 A. I'm trying to think. We did have a term 5 for it, and I can't tell you what it was right now. 6 Chemical Data Safety Sheet. That doesn't sound right. 7 Q. The current terminology would be a Material 8 Safety Data Sheet. 9 A. Material Data Safety Sheet is what 10 probably what we called it. 11 Q. You have visited the facility that was 12 preparing these forms? 13 A. Yes. 14 Q. But you just don't recall ever seeing the 15 form in 1962? 16 A. I don't recall when I did first see it. 17 Q. Now, dealing with one of these forms that 18 covered asbestos or an asbestos-containing product, do 19 you ever remember seeing one for those subjects? 20 A. No. 21 Q. What was your understanding of how these 22 Material Data Safety Sheets was to be circulated? 23 A. I don't know if there was a set 24 circulation. If we needed a data sheet on a specific 25 compound, we could call Harold; and he would send it to 64 1 us. Whether we were on a distribution list, I don't 2 know. I know we had a file of these. But I don't know 3 where they came from or how we got them. 4 Q. And after you became the plant industrial 5 hygienist, did you have anything to do with keeping up 6 that file? 7 A. Yes. 8 Q. Would you from time to time yourself have 9 added to it? 10 A. Yes, sir. 11 Q. How would that come about? Would you call 12 Mr. Hoyle up and say, "Send me what you got on this 13 material"; and he would send it to you, and you would 14 put it in the file? 15 A. We could call him, or there were other 16 companies that I think were putting them out at the 17 time. I don't think they were all Dow. 18 Q. So, you had a file of these forms that came 19 not only from Dow but from other suppliers to Dow? 20 A. Right. Yes, sir. 21 Q. Do you ever remember getting such a form 22 for any of the thermal insulation materials? 23 A. No. 24 Q. Would these forms -- From time to time do 25 you recall any of them ever being sent to you without 65 1 you specifically having to ask for them? 2 A. I don't recall that we ever did. 3 Q. This particular form deals with material 4 that is listed there as asbestos 7-M, I believe. There 5 is information on that. And if you would like to take 6 time to read it specifically, Mr. Hill. That talks 7 about the health hazards related to that product. Since 8 you are I think at least somewhat familiar with that 9 form, can you find that section for me and tell me what 10 that form relates to you about the health hazards of 11 this particular product from 1958. (Tendering) 12 A. (Reviewing) Either my eyes are tired or 13 this is lousy print, but it's hard to read. 14 Q. I agree. 15 MR. ALMQUIST: Well, Herschel, 16 he's not seen this document before. 17 And I mean I think it's really 18 unfair to make him try to read over it 19 today and figure out what it's 20 about and answer questions about it. 21 If he had some familiarity with 22 it, it would be a different matter I 23 think. Plus it's a lengthy document 24 and difficult for the witness to read. 25 And I think under those circumstances 66 1 that I'm going to object to this line 2 of questions. And in addition to 3 that, what the document says the 4 document says. It speaks for itself. 5 MR. HOBSON: I understand that. 6 I'm asking Mr. Hill as a long-term Dow 7 employee who had been familiar with 8 these documents at the time what his 9 interpretation of this particular one 10 would be. 11 (By Mr. Hobson) 12 Q. And if you have one, Mr. Hill. And if you 13 don't, that's okay, too. 14 A. I guess I don't know what you mean by 15 "interpretation." 16 Q. Well, sir, Mr. Almquist has said "the 17 document says what it says." And all of us can sit back 18 and read it. What I'm trying to find out, sir, is you 19 as a one-time Dow industrial hygienist, I would like to 20 know what information it imparts to you; how you 21 interpret that information. 22 And in this particular case, I'm asking 23 what health hazard information do you find on this 24 two-page document about this particular product? 25 A. Okay. Now, what was the question, again? 67 1 Q. Yes, sir. I'm asking about this particular 2 data sheet for the material that is listed as asbestos 3 7-M, and asking you if you can tell me what kind of 4 health hazards regarding that product this particular 5 form conveys to you. 6 A. Well, just going by this, I guess I would 7 say -- 8 MR. ALMQUIST: (Interrupting) Let 9 me interpose -- I think what he's 10 asking you is: Does it convey 11 anything to you more than what is 12 written there on the page? Is that 13 what you are asking, Herschel? 14 Because if you are just asking him 15 what it says, then he's going to read 16 it back to you. 17 MR. HOBSON: I'm asking what it 18 means to him. 19 (By Mr. Hobson) 20 Q. What does it mean to you about the health 21 hazards of this material, Mr. Hoyle - I mean, Mr. Hill, 22 that you would utilize this in your work at Dow? 23 A. If we had had an exposure - let's say a 24 continuous exposure, not one here, one there, definite 25 controls would be necessary. For occasionally -- We 68 1 didn't have any occasional daily contacts with asbestos. 2 We might have minor contacts or no contacts. And for 3 this, no problem. If we had daily contacts or a gross 4 spill of powdered asbestos or something, yes. 5 Q. And what would that indicate to you for 6 continuous exposure as far as protection required for 7 the - for the other categories you mentioned; this 8 continuous exposure -- 9 A. (Interrupting) Gross contact. 10 Q. Gross. 11 A. Or occasional daily contacts. 12 Q. Occasional daily. 13 A. Exposure to dusts or mists or inhalation. 14 Q. And what would -- 15 A. (Interrupting) We would use the respiratory 16 protection appropriate to the possible exposure. 17 Q. And is there anything inthis document 18 about this particular material, asbestos 7-M, that would 19 indicate to you that respiratory protection would be 20 required when handling this product occasionally? 21 A. Well, it depends on -- This says occasional 22 daily contacts. Now, if occasional means daily, then 23 proper respiratory protection would have been required. 24 But occasional like we had, no. 25 Q. And how would you characterize exposures 69 1 like you had? 2 A. Minor contact. 3 Q. Minor. Is minor -- 4 A. (Interrupting) If any at all. 5 Q. Is minor contact addressed by this 6 particular form as far as respiratory protection goes? 7 A. Yes. 8 Q. And what does it provide for minor contact 9 as you understand it? 10 A. No respiratory protection. 11 Q. And which part of the form is that 12 indicated in? 13 A. That's under the dusts andmists. 14 Q. And just so I'm clear now, what you've done 15 is you've given me your best interpretation of the 16 information conveyed by this document about this 17 material to you? 18 A. Yes. 19 Q. May I borrow it back for a moment, 20 Mr. Hill? 21 A. (Tendering) 22 Q. (Reviewing)Thank you. On the first page 23 of this document under Toxic Properties, Inhalation, 24 Dust or Mist it says, "Dusty or misty atmosphere may 25 cause serious systemic injury." 70 1 And again, this refers to this material, 2 asbestos 7-M, which is defined as a - at least here 3 under structural formula or composition - very short 4 fiber asbestos. 5 Is that information that you would have 6 learned during your work at Dow, that very short fiber 7 asbestos material - that exposure to dusty or misty 8 atmospheres may cause serious systemic injury? 9 A. Yes. 10 Q. Can you put that in a time perspective for 11 me at all? 12 A. No. 13 Q. This particular sheet is written in 1958. 14 Do you think you would have known that in 1958? 15 A. No. 16 Q. How about around the mid-'60's? 17 A. I really can't say. 18 Q. Does the term Central Research Index mean 19 anything to you, Mr. Hill? 20 A. No. 21 Q. In some of these documents that were used 22 in Mr. Hoyle's deposition, there is reference made that 23 there is a Central Research Index, and then it talks 24 about a Western Division Central Research Index. Does 25 that mean anything to you? 71 1 A. That doesn't sound familiar to me. 2 Q. Did you even use the Western Division as a 3 terminology while you were at Dow? 4 A. No. 5 Q. Does the term C.R.I. mean anything to you? 6 A. No. 7 Q. Would you know a gentleman or perhaps a 8 lady named R. H. Boundy, B-o-u-n-d-y? 9 A. No. 10 Q. How about an R. A. Erhart, E-r-h-a-r-t? 11 A. It isn't familiar, no. 12 Q. Dr. H. H. Gay, G-a-y? 13 A. The name is familiar. I think he was at 14 Midland at one time, wasn't he - an M.D.? 15 Q. It indicates that he was the medical 16 department doctor, Midland division. 17 A. I think so. 18 Q. Would you recall if you met Dr. Gay? 19 A. I don't recall that I ever did. 20 Q. And it shows the safety department, Midland 21 division, a Mr. W. L. Tisdale. Do you recognize that 22 name? 23 A. No. 24 Q. You told me that I think it was 1964 - I'm 25 sorry - 1962 you went to Midland for an orientation 72 1 meeting 2 A. Yes. 3 Q. Did you go to Midland after that ever? 4 A. No. 5 Q. That you recall? 6 A. No. 7 Q. That was your only trip? 8 A. Yes. 9 Q. And is it correct that you don't recall 10 having any meetings of Dow's industrial hygienists from 11 time to time to talk about your common activities? 12 A. No, I never had any meetings. 13 Q. To the deposition here today you brought 14 one item I think that is responsive to the Subpoena; is 15 that right? 16 A. Yes, sir. 17 Q. And I take it in looking at the Subpoena 18 you made a diligent search and determined that this was 19 the only thing you had that was responsive? 20 A. Yes, sir. 21 Q. We've marked this asPlaintiff's Exhibit 22 661128 Dow. And let me show this to you, Mr. Hill, and 23 ask you if you would identify it for us for the record, 24 sir. (Tendering) 25 A. (Reviewing) This is a paper I wrote on our 73 1 Rocky Flats respirator fitting program. Co-author S. E. 2 Hammond was my boss at the time. 3 Q. And what was Mr. Hammond's position when 4 you wrote that in 1966 I think it was? 5 A. He was manager of the health physics 6 laboratories at Rocky Flats. 7 Q. Were you asked to prepare this report by 8 someone? 9 A. I don't recall that I was. 10 Q. Can you tell me how it ended up being 11 prepared? 12 A. It ended up being prepared, and I presented 13 it at the Western Industrial Safety Meeting in Los 14 Angeles I think in '68 or '69, and also at the 15 Industrial Hygiene Convention, A.I.H.A. convention in 16 Denver in 1969 I think. 17 Q. I might have heard that paper come to think 18 of it. 19 A. We had a -- We had a symposium of four or 20 five different people. 21 Q. What was the distribution of the published 22 document? 23 A. I don't think there was any distribution 24 outside the plant. It went into the plant library, and 25 that's -- As far as I know, that's as far as it went. 74 1 Q. Did you essentially read the paper at the 2 presentations that you just told us about? And the text 3 that's in this printed document is what you presented? 4 A. Yes, sir. 5 Q. The time period that youpresented this 6 particular article - and you, in fact, wrote it in 1966 7 I believe - were you familiar with the ANSI, American 8 National Standards Institute's documents that dealt with 9 respiratory protection? 10 A. I think so. 11 Q. How is it that you learned to do fit 12 testing of respirators? 13 A. The -- Somebody up the line decided we 14 should have a respirator fitting program. And 15 industrial hygiene was appointed to do it. We did some 16 visiting with Mine Safety Appliances when we went back 17 to Pittsburgh. We worked closely with Ed Hyatt at Los 18 Alamos that had I think a respirator fitting program 19 going at the time. And this was kind of patterned after 20 his, I think. 21 Q. Did you know Ed Hyatt? 22 A. Yes. 23 Q. Who was it at Mine Safety Appliances that 24 you worked with? 25 A. Jack Leach who was the local 75 1 representative. I'm trying to think of the Pittsburgh 2 representative. I can't tell you his name just offhand. 3 We went back and visited with the Pittsburgh facility 4 and also as I recall visited the Bureau of Mines. They 5 had a testing program at Pittsburgh at the time. 6 Q. Do you remember a Wade Miller? 7 A. The name is familiar, but I couldn't tell 8 you that's who we saw. I've heard the name. My main 9 contact was the district representative that used to 10 come out here from M.S.A. And I can't tell you right 11 now what his name is. 12 Q. So, that was somebody intermediate between 13 Mr. Leach and the Pittsburgh offices of MSA? 14 A. Yes. 15 Q. And was where their district office 16 located? 17 A. Here. 18 Q. The one that you dealt with that was 19 between Mr. Leach and Pittsburgh. You say "here" being 20 Boulder? 21 A. Jack Leach was stationed in Denver. 22 Q. In Denver. 23 A. And he was our primary contact. And then 24 the one from Pittsburgh I think was Jack Leach's boss. 25 He was probably district sales manager, but he used to 76 1 come out and see us once in a while. Jack Leach was out 2 quite often. 3 Q. Now, you used I think what was generally 4 referred to as irritant smoke to do fit testing for 5 respirators. How did you learn to do that? 6 A. I think that probably came from Ed Hyatt. 7 Q. Did you ever understand that to be a new 8 technique at the time, or something that had been done 9 before? 10 A. Well, I don't know what you would call new. 11 It had been done before, but I don't know how long it 12 had been done. 13 Q. What was the reasoning behind doing the 14 respirator fit testing that you wrote about here in 15 1966? What was your goal? 16 A. Our goal was to get - I guess to get the 17 best fit. We had - what, three different brands of 18 respirators. And some people could wear one. Some 19 could wear another and get a better fit. So, we wanted 20 to test them and see and recommend which one gave them 21 the most protection. 22 Q. Was it a matter of picking one respirator 23 and having everybody use it, or were you giving people a 24 choice so that they got the best fit of the three? 25 A. We tested all three on each individual. 77 1 Q. And you'd tell the person which one you 2 thought gave them the best fit? 3 A. Yes. 4 Q. And that's the one they would then use from 5 that point on? 6 A. Yes, sir. 7 Q. Would you retest them later? 8 A. Yes, we retested them. Plus eventually 9 this evolved into a chamber using a quantitative fit 10 where we used D.O.P. and actually measured the 11 penetration into the respirator. 12 Q. Do you remember about what time it was you 13 actually went to quantitative fit testing? 14 A. No, I can't. 15 Q. Would it have been in the '60's or the 16 '70's? Can you get me that close? 17 A. Probably mid-'70's. 18 Q. Would it be fair to say that you had better 19 protection of the employees from inhalation of dusts 20 after you did this fit testing program than before? 21 A. That was the aim of the program, yes. 22 Q. And you think you accomplished that I take 23 it? 24 A. Yes. 25 Q. In fact, as I quickly reviewed your 78 1 document, you found some people that got better 2 protection from one respirator than another. 3 A. Yes, sir. 4 Q. And, so, by recommending them to use the 5 one which gave them better protection, you would reduce 6 their exposures? 7 A. Yes, sir. 8 Q. And would you also agree with me that had 9 you not done this program, those people's exposures 10 would have continued to be higher than they were because 11 they did benefit from your program? 12 A. I really can't say. I don't know. 13 Q. Well, you know their respiratory protection 14 got better after you did the program? 15 A. I think so. 16 Q. And would you agree, sir, that doing fit 17 testing of respirators is a part of - a necessary part 18 of any good respiratory protection program? 19 A. I think so. 20 Q. And if you don't have that component to 21 your respiratory protection program, you are really 22 taking an unnecessary risk? 23 A. I suppose you could say that. 24 Q. I noticed in your paper that you mentioned 25 that there were some women who went through the program. 79 1 And that the women, having smaller faces, had 2 particularly difficult problems in fitting respirators. 3 A. Yes, sir. 4 Q. How did you address that? Practically how 5 did you solve that problem? 6 A. I guess it just came back to the one that 7 seemed to fit them the best. Eventually I think we 8 expanded the number of respirator types we had so that 9 we did have -- Some did have smaller facepieces than the 10 others. 11 Q. And eventually the manufacturers started 12 making respirators with different size facepieces to 13 accommodate people with small faces such as women? 14 A. They started making them - if that was why, 15 I don't know; but, yes. 16 Q. In part of your training program in which 17 you were using these half face respirators with 18 particulate cartridges, how would you tell an employee 19 how would you train an employee to know when to change 20 his filter? 21 A. The general instructions were that you used 22 a respirator once and returned it for cleaning and 23 testing and servicing. 24 Q. Once being once a day? 25 A. A day. If you didn't use the respirator, 80 1 once a week. 2 Q. So, would that have been true in what time 3 period, sir? 4 A. Pardon? 5 Q. What time period would that procedure have 6 been in effect at Rocky Flats? 7 A. I don't know. 8 Q. Was it there when you came? 9 A. I think it was kind of a general practice. 10 Whether it was formalized or not, I don't know. 11 Q. And later it was formalized by -- 12 A. (Interrupting) Yes. 13 Q. --- industrial hygiene? 14 A. Industrial hygiene, health physics. 15 Q. So, if an employee had worked at - could 16 require the use of a respirator, one was issued to him? 17 A. Yes. 18 Q. And if it turned out that that employee 19 needed to use his respirator any time during the day, 20 that at the end of that workday, that respirator was 21 returned and it was serviced? 22 A. Yes. 23 Q. And if the employee never used the 24 respirator during a week, even though it had been issued 25 to him, he still returned it for service at the end of 81 1 the week? 2 A. Yes, sir. 3 Q. And then when that respirator went in for 4 service, whether it was used one day or not at all, 5 would it get new filters? 6 A. The filters were reused if they were still 7 serviceable. 8 Q. Who would make that determination, and how 9 was it done? 10 A. Originally I think they reused it. 11 Eventually it came to the point where they were tested 12 with D.O.P. to make sure they were working before they 13 were put back in the mask. 14 Q. Was there a test done to determine the head 15 loss across the filter to see how plugged it was? 16 A. I think at times they were checked, yes. 17 Now, this evolved - and I can't tell you when it 18 started - but they were disassembled, the heads were 19 checked for resistance and leakage, the facepieces were 20 cleaned, and then they we reassembled and put back out 21 for use. 22 Q. I take it that your greatest familiarity 23 with this program came after you became the plant 24 industrial hygienist in '61? 25 A. Yes. 82 1 Q. In that time period shortly after you 2 became the plant industrial hygienist, would you tell us 3 what your maintenance practices for respirators were at 4 that time as best you recall. 5 A. They were returned to the laundry - plant 6 laundry; the facepieces were washed; the filters were 7 monitored for radioactive contamination; they were 8 sterilized, the filters were sterilized in an autoclave; 9 the units were reassembled for use. 10 Q. And shortly after you became the plant 11 industrial hygienist, was it your understanding that 12 this procedure of - if the respirator was used at all 13 during the day, it was returned that day; and if it 14 wasn't used at all during the week, it was returned at 15 the end of the week - came into place? 16 A. I don't know when that was put into place. 17 But this was standard practice in the times that I 18 remember. But when it started, I don't know. 19 Q. How would you determine, Mr. Hill, which 20 jobs were going to have respirators issued to them? 21 A. Everybody that went into a plutonium area 22 had to carry a respirator with them. On other 23 operations, I guess our familiarity with the operation 24 and the possibility that they would need a respirator 25 came into play. There were certain operations where 83 1 they were required. If you were changing a glove box, 2 glove, respirators were required in the area, for 3 instance. 4 But it was kind of a case by case -- Health 5 physics would determine what respiratory protection was 6 needed and when for radioactive material. If it were 7 beryllium, I would probably decide it or one of the 8 industrial hygienists. 9 Q. And you say it would depend some on your 10 familiarity with the work. How would you become 11 familiar with the work? 12 A. From past operations. If there was any 13 question, respiratory protection was required until we 14 were sure there was no problem. 15 Q. And would part of that past operations 16 involve air sampling? 17 A. Yeah. 18 Q. So, you would go out and do an observation, 19 do air sampling; and if you thought there was any 20 possibility of a problem, arespirator would be issued? 21 A. Yes. 22 Q. Was that because of yourgreat concern that 23 radioactive materials being inhaled could cause cancer 24 in workers? 25 A. I don't know if it was so much the cancer, 84 1 but there was concern about inhaling radioactive 2 material. 3 Q. And certainly one of the major risk factors 4 you knew about then for inhaling radioactive materials 5 was cancer? 6 A. Yes, sir. Well, one. Now, for instance, 7 depleted uranium, I'm not sure if that's cancer causing. 8 Q. Now, you said that the same thing would be 9 done for beryllium operations; right? 10 A. Yes, sir. 11 Q. And there again, would you do the same 12 thing, go out and do an observation, do air sampling; if 13 there was any possibility of a dust exposure, issue 14 respirators to the people doing that work? 15 A. We would do whatever needed to be done to 16 insure they didn't need them. If it was a new 17 operation, they would wear respirators until we were 18 sure that there was no problem by air sampling or 19 whatever. 20 Q. And that was because you were aware that 21 breathing the beryllium dust could cause permanent lung 22 damage in people breathing such dust? 23 A. Yes. 24 Q. Do you recall who it was that suggested 25 that you do your respirator fit testing program that you 85 1 reported on in 1966? 2 A. No, I don't know where it came from. It 3 came from up above. It could have come from D.O.E. It 4 could have come from Dow. 5 Q. Did you do any work on respiratory 6 protection that was not published in such a form as the 7 exhibit here to your deposition? 8 A. Over the years, yes. 9 Q. Did you ever do any research or work in 10 looking at filter penetration? 11 A. I don't remember doing anything 12 specifically that way, no. 13 Q. What kinds of filters - filtering media 14 were in use at Rocky Flats while it was Dow's operation? 15 A. I don't know what may have been in the 16 filters that we used. They were standard particulate 17 filters. 18 Q. Were they -- You are familiar, are you not, 19 that there is different - that there are different 20 filters for respirators for particulates. There is 21 pneumoconiosis producing. There is high efficiency. 22 There is nuisance dust. There are different kinds of 23 filters made for respirators, are there not? 24 A. Yes. 25 Q. Which kinds of filters would you have been 86 1 using at Rocky Flats? 2 A. We used only high efficiency. 3 Q. Only high efficiency. 4 A. That's the only ones we allowed. 5 Q. When you say "That's the only ones we 6 allowed," are you talking about "we" being Dow? 7 A. Dow, industrial hygiene, health physics. 8 That's the only kind that was ever used there as far as 9 I know. 10 MR. BEASON: Sir, I didn't 11 hear what kind you said. 12 A. High efficiency. 13 (By Mr. Hobson) 14 Q. In your exhibit that you brought, Mr. Hill, 15 it says on the second page that it's printed in the 16 U.S.A.; price $1.00, "Available from the Clearinghouse 17 for Federal, Scientific and Technical Information, 18 National Bureau of Standards, U.S. Department of 19 Commerce, Springfield, Virginia 22151." What is your 20 understanding of how this got to the folks in 21 Springfield, Virginia? 22 A. I don't know. I would guess maybe D.O.E., 23 A.E.C., whatever it was then. Everything that came out 24 of Rocky Flats, since we were a government contractor, 25 may have ended up there. 87 1 Q. Is it your understanding then that your 2 work that you put in this form in 1966 then was for the 3 price of $1.00, available from the Federal Government? 4 A. If it says so, I expect it was. 5 Q. Do you understand, sir, that this agency, 6 the Clearinghouse for Federal, Scientific - the 7 Clearinghouse for Federal, Scientific and Technical 8 Information is now what's called N.T.I.S., National 9 Technical Information Services? 10 A. No, I'm not familiar with the thing at all. 11 Q. Do you recall if you were provided at Rocky 12 Flats with similar documents that were compiled from 13 other U.S. government sponsored work? 14 A. I think some were available from our plant 15 library. You could get them on order. 16 Q. How would you get a list of what was 17 available? 18 A. Seems to me like there was a list of 19 government publications that used to come out. And I 20 can't tell you what it was or where it came from. But 21 it seems to me like there used to be a catalog that 22 would be circulated. 23 Q. Is this one of those top secret things that 24 only you could get? 25 A. No. 88 1 Q. This is something generally available to 2 anyone who wanted to have a list of government 3 publications? 4 A. I think so. I vaguely recall that these 5 were circulated. You could order what you wanted. I 6 think the plant library circulated them around the 7 plant. 8 Q. Mr. Hill, do you remember circulating your 9 paper, "Rocky Flats Respirator-Fitting Program" within 10 Dow? 11 A. I don't recall that we did. 12 Q. You don't know that Mr. Hoyle ever got a 13 copy of it? 14 A. I don't know. 15 Q. Do you recall having any conversations with 16 anyone from Dow such as Mr. Hoyle, about what other Dow 17 locations were doing as far as respiratory protection 18 programs were concerned? 19 A. I don't recall any. 20 Q. Based on what you know now looking back, do 21 you think that you and Dow at Rocky Flats were the 22 leader of the pack as far as the cutting edge of what 23 was going on in respiratory protection programs, or was 24 everybody about the same? 25 A. I don't think I'm that familiar with what 89 1 was going on around the country. 2 Q. You just don't know what Dow was doing 3 elsewhere one way or the other? 4 A. No, I don't. 5 Q. Dow had other professional industrial 6 hygienists at the same time you were at Rocky Flats 7 writing your 1966 paper, did they not? 8 A. Yes, sir. 9 Q. Would youexpect those folks at the other 10 Dow facilities being competent professional industrial 11 hygienists to be keeping up with the literature and 12 keeping up with what was going on in respiratory 13 protection programs? 14 A. Yes. 15 Q. Did you ever happen to visit any of the Dow 16 facilities in Texas? 17 A. No. 18 Q. Do you recall that Mine Safety Appliances 19 got a copy of your "Rocky Flats Respirator-Fitting 20 Program" paper? 21 A. I don't know for certain, no. 22 Q. Do you recall talking about it - the 23 results, that is, with Mr. Leach or the folks back in 24 Pittsburgh? 25 A. I don't recall any specific instance, no. 90 1 Q. Even though you may not recall a specific 2 conversation, do you remember in general that you were 3 talking about your work and how it was progressing and 4 what you were finding with the MSA folks? 5 A. I suspect we did, but I don't recall 6 specifically that we did. 7 Q. Now, Mine Safety Appliances, of course, 8 always had a presence at the American Industrial Hygiene 9 Association meetings in the '60's, did they not? 10 A. Yes. 11 Q. And would, in fact, go there and market 12 respirators and attend sessions and even put on 13 marketing programs for industrial hygienists about their 14 products, wouldn't they? 15 A. Yeah. 16 Q. That would have been true in 1969 when you 17 presented your paper in Denver as well, would it not? 18 A. Yes, sir. 19 Q. I noticed that one of the respirators that 20 is listed here in your paper is the MSA Comfo. That 21 respirator was subsequently changed in design to your 22 paper in 1966, was it not? 23 A. I don't know. It was changed, but when I 24 don't know. 25 Q. But it was after 1966? 91 1 A. I don't know. 2 Q. The -- Were you using the Custom Comfo II 3 in 1966? 4 A. We were using it, but I don't know when it 5 came out. 6 Q. Do you have any knowledge one way or the 7 other whether or not MSA utilized any of your work in 8 the design of their products? 9 A. Yes, they did. 10 Q. How do you know that? 11 A. I know a couple of things they did to the 12 respirator that we had asked them to do. 13 Q. What would that be, sir? 14 A. One was color code the filter purple so it 15 would indicate it was a high-efficiency filter. And 16 another one I know of is they changed the color of the 17 O-ring under the filter to white so we could make sure 18 it was in there. It was noticeable if it was gone. 19 They could have done other things. Those two stand out 20 in my mind. 21 Q. I noticed that the color of the O-ring is 22 mentioned in your paper. I didn't see the color coding 23 of the filters mentioned in your paper. 24 A. I don't know if that was before or after I 25 I wrote the paper, but it was done eventually. 92 1 Q. Did the other respirator manufacturers that 2 you mentioned here, American Optical and Willson, do the 3 same thing as far as the coloring of the O-rings? 4 A. I don't recall if they did or not. 5 Q. And what about color coding the filter? 6 A. I don't know if they did or not. Some of 7 them -- I think one was color coded on the label. One 8 of them had a big label on the front of it. I think it 9 might have been the Willson. I'm not sure. It was 10 already color coded. The other one made by -- I can't 11 remember which were which now. But one of them was 12 color coded anyway. 13 Q. Also listed here is the Welsh and Acme as 14 manufacturers. Would their O-rings have been changed to 15 a color? 16 A. I don't recall. 17 Q. What's the problem with not having an 18 O-ring? 19 A. The filter doesn't seal. 20 Q. And what happens if the filter doesn't 21 seal? 22 A. You don't get the protection. 23 Q. You breathe the hazardous dust? 24 A. It can leak around the edge of the filter. 25 Q. Resulting in breathing of the hazardous 93 1 dust? 2 A. It could. 3 Q. Did you from time to time find that indeed 4 O-rings did come out and didn't get replaced? 5 A. I don't remember any instances where they 6 did. We thought they could. 7 Q. You wanted to make sure that -- 8 A. (Interrupting) Anything we could do to 9 insure safety, we did, yes, sir. 10 Q. Did you have any contacts with the other 11 manufacturers that provided respirators that are the 12 subject of your 1966 paper, American Optical, Willson, 13 Welsh or Acme? 14 A. Yes. 15 Q. Who did you have contact with at those 16 companies? 17 A. Acme. I'm trying to think of his name. 18 It's the same as a paint. They had district 19 representatives that we were in contact with. 20 Q. Was it Glidden? 21 A. Glidden, yes. It was Acme. I can't recall 22 offhand who Willson was represented by. Bob Merkle 23 incidentally was the MSA contact in Pittsburgh. Is 24 American Optical in that list? 25 Q. Yes, sir. 94 1 A. I had his name on the tip of my tongue. I 2 can't tell you what it was now. I can't tell you who 3 the A.O. rep was. I can see him, but I can't tell you 4 his name. 5 Q. Do they have an office locally, American 6 Optical? 7 A. I think he worked out of Denver, but I'm 8 not sure. 9 Q. Again, that would be in the early to 10 mid-'60's? 11 A. Yes. Most of those representatives were 12 with them a long time. 13 Q. Was it your understanding that the 14 high-efficiency filters could also be used for 15 protection against pneumoconiosis-producing dusts? 16 A. Yes. 17 Q. Why is it, Mr. Hill, that you elected to go 18 with just high-efficiency filters for air-purifying 19 respirators? 20 A. You mean rather than use high efficiency 21 and others? 22 Q. Yes, sir. 23 A. Because we wanted any respirator that was 24 used on plant site to be approved for use with 25 radioactive materials. 95 1 Q. Would it be also true that if you are using 2 high-efficiency filters for your air-purifying 3 respirators, that you would get better purification of 4 the air than you would for a pneumoconiosis or a lesser 5 category of air filter? 6 A. Say that again would you. 7 Q. Yes, sir. High efficiency is in essence 8 the best particulate filtering respirator cartridge you 9 can buy; right? 10 A. Yes. 11 Q. And, so, if you would have used 12 pneumoconiosis producing - protecting type cartridges or 13 nuisance dust cartridges, they would offer less in the 14 way of purification efficiency? 15 A. Yes. 16 Q. And, so, by going to high efficiency, you 17 would provide the best protection for all hazards that 18 was available? 19 A. Yes. 20 Q. Includingthe pneumoconiosis hazard? 21 A. Yes. 22 Q. Didn't you consider that thecost of using 23 the high-efficiency filters for protection against 24 pneumoconiosis dusts was more than you wanted to pay? 25 A. No. 96 1 Q. That never -- The cost of the filters never 2 entered into the picture? 3 A. Not as far as I know, no. 4 Q. Wouldn't it be your impression then that as 5 far as the weighing of the additional cost of the filter 6 against the extra protection of the worker, it was not a 7 significant effect at all - or a significant factor? 8 A. It was not significant in the fact that a 9 very large majority of these were used for protection 10 from radioactive material, and not an awful lot of them 11 were used on other materials. 12 Q. But in the case where it was for another 13 material, the additional cost of the filter would not be 14 of consequence to you at Dow? 15 A. I don't know what that may have been; what 16 that cost difference was. 17 Q. It wasn't enough to get you to change your 18 program, though? 19 A. No. 20 Q. I asked earlier about changes that MSA made 21 based on your work. Did MSA make input to you about how 22 to do this work at Rocky Flats while you were at Dow? 23 A. They did insofar as we went back and looked 24 at some of their testing equipment and how they did 25 things to get some idea what kind of equipment we 97 1 needed. 2 Q. So, this is when you went back to 3 Pittsburgh and visited Mine Safety Appliances and met 4 with Mr. Merkle and those people back there? 5 A. Yes. 6 Q. And what did you do when you made that 7 trip? What do you remember seeing and doing? 8 A. I remember seeing some of what I would call 9 mannequin heads that they tested their respiratory 10 equipment on. I don't remember too much else. Seems to 11 me like the Bureau of Mines had about the same 12 equipment. 13 Q. This would have been about what time 14 period? 15 A. Well, it's before we started this. I'm 16 guessing early '60's, but I don't know. 17 Q. I think your paper was 1966, was it not? 18 A. The paper was '66, but we started the 19 program several years before that. 20 Q. So, '64 or slightly earlier -- 21 A. (Interrupting) Earlier than '64. I would 22 guess '61 or '62. 23 Q. And that's about when you would have made 24 your trip to Pittsburgh to MSA? 25 A. Yes. 98 1 MR. HOBSON: We need to change 2 our tape. 3 4 (A SHORT RECESS WAS TAKEN.) 5 6 (By Mr. Hobson) 7 Q. Sir, I wanted to ask you a few questions 8 about your 1966 paper, "Rocky Flats Respirator-Fitting 9 Program." Would you explain to me what you intended to 10 convey by Figure 4 of your paper, please, sir. 11 A. I think that's a tabulation of the number 12 of individuals that would receive a satisfactory fit 13 from any one given brand of respirator. The areas refer 14 to the areas where we tested. 15 Q. And by determining a satisfactory fit test, 16 you mean as you determined using the irritant smoke 17 is that how you determined whether it was a satisfactory 18 fit test or not using the irritant smoke as described in 19 the paper? 20 A. Yes. 21 Q. And if I understand what you did there is 22 basically you would take one of these employees, let's 23 say, you mentioned here plantwide. These people would 24 work throughout the plant then; correct? 25 A. Yes, sir. 99 1 Q. And you would give them, the first instance 2 here, an American Optical respirator. They would then 3 put that respirator on; right? 4 A. Yes. 5 Q. You would take irritant smoke that is 6 generated by a Mine Safety Appliances special tube for 7 that purpose to generate an irritant smoke? 8 A. Yes. 9 Q. And blow that smoke around the face of the 10 person wearing the respirator? 11 A. Yes. 12 Q. And if therespirator didn't fit properly, 13 the irritant smoke then would penetrate the area between 14 the respirator facepiece and the face -- 15 A. (Interrupting) Yes. 16 Q. --- of the person? 17 A. Yes, sir. 18 Q. And because this is an irritant smoke, they 19 would cough or gag or in some way let you know pretty 20 fast that some of the smoke was leaking in? 21 A. Yes. 22 Q. And youcall that aqualitative fit test? 23 A. Yes. 24 Q. Now, if I look at this table, Figure 4 of 25 the respirator fittings, then for the plantwide people 100 1 when you issued all of them an American Optical 2 dual-cartridge half-faced respirator that you describe 3 here in your paper, 57 percent of those people got a 4 satisfactory fit test as determined by your smoke tube; 5 is that right? 6 A. Is that percent? 7 Q. I don't know. I was going to ask you. 8 A. Yeah. "Percent obtaining satisfactory 9 fit." 10 Q. So, 57 percent of the people got a 11 satisfactory fit with the American Optical. I guess 12 that means then that 43 percent could not get a 13 satisfactory fit test with the American Optical 14 respirator? 15 A. Yes, sir. 16 Q. And if we goon down this list for 17 plantwide, with the MSA, 80 percent of the people who 18 put on an MSA and you challenged them with the irritant 19 smoke, 80 percent of those folks didn't sense any smoke 20 inside their respirator? 21 A. Right. 22 Q. But 20 percent did? 23 A. Yes. 24 Q. And then Willson, it would be 69 percent 25 according to your table that got a satisfactory fit. 101 1 And 31 percent then - or I guess it would be 41 percent 2 did not? 31. I got it right the first time. 3 A. Yeah. 4 Q. And then you would go -- Now, the plutonium 5 area, these are -- This a different group of workers 6 than the plantwide workers; is that right? 7 A. Yes. 8 Q. It's not a subset. It's not that the 9 plutonium area workers were also plantwide workers? 10 A. To the best of my knowledge plantwide 11 workers for kept separate from plutonium and uranium. 12 Q. And, so, if we take all of the workers that 13 you did these challenges to, using the different 14 respirators, you actually evaluated these respirators on 15 something over 2,000 people at Rocky Flats? 16 A. I don't remember the exact number. It 17 could be. 18 Q. I think that's what your abstract here says 19 in the beginning. The abstract -- This experience is 20 reviewed of fitting in the field over 2,000 workers with 21 several different types of half-mask respirators. 22 A. Okay. 23 Q. And you did this work yourself, did you 24 not? 25 A. I think I did it all, yes. 102 1 Q. And this is a photocopy of - looking here 2 at Figure 2 - is that your picture? 3 A. That's me. 4 Q. So, if you didn't do it all, at least you 5 did a substantial amount of it? 6 A. Yes. 7 Q. Was there anything unusual that you were 8 able to determine about your 2,000 workers as far as 9 them being able to wear these different respirators and 10 challenging them with smoke? Was there anything that 11 told you your 2,000 workers had different face shapes or 12 different characteristics than basically any other 2,000 13 workers that would be encountered in the working 14 environment? 15 A. No, I don't think we did. 16 Q. Were you aware before you did this study 17 that -- For instance, we look here at the American 18 Optical respirator; for the plantwide group you had 57 19 percent satisfactory; plutonium area workers, 65 percent 20 satisfactory; uranium area workers, 48 percent 21 satisfactory. 22 Were you aware before you did this study 23 that the American Optical respirator would in essence 24 not get a suitable fitting for at least 30 percent of 25 the people who wore it? 103 1 A. No. 2 Q. And I think -- Would the same be true then 3 for MSA, Willson, Acme and Welsh, until you actually did 4 this study, you were unaware that there was 10, 20 5 percent or more of the workers who could not get a 6 satisfactory fit test as tested by the irritant smoke 7 method? 8 A. I wasn't aware that people wouldn't get a 9 good fit, yes. 10 Q. I'm sorry? 11 A. I don't know how you worded -- We were not 12 aware that there would be people - how many people could 13 not wear a given mask. 14 Q. And then if you look here -- If you would, 15 sir, would you explain to me what you mean by the 16 category "All Three Types." And then in parentheses, 17 you have A.O., MSA and Willson. What does that category 18 mean, sir? 19 A. To the best of my memory we started out the 20 testing program with those original three respirators. 21 The others may not have been on the market when we 22 started it. But they came on the market later; so, we 23 expanded the program to include those last two. 24 Q. All right, sir. 25 A. I think the Welsh and the Acme were fairly 104 1 new on the market at the time. 2 Q. So, that category then where you have "All 3 Three Types," A.O., MSA and Willson - for instance, the 4 plantwide workers, 29, that means that 29 percent of the 5 plantwide worker group could get a satisfactory fit test 6 on all three respirators. Is that what it means? 7 A. Ask me that again. 8 Q. Yes, sir. That category there where you 9 have -- You see 29 under the plantwide workers, and it 10 says for all three, A.O., MSA and Willson; does that 11 mean that 29 percent of the plantwide worker group could 12 get a satisfactory fit with each one of those 13 respirators? 14 A. Yes. 15 Q. And, so, if we look back up at the numbers 16 up above there, obviously you had some workers who got a 17 better fit with one respirator than others? 18 A. Yes. 19 Q. But only 29 percent of the plantwide 20 workers got a satisfactory fit with all three 21 respirators? 22 A. Yes. 23 Q. Now, thenext entry "Noneof the above" - 24 for instance, under the plantwide, that's 0.7. So, 25 would it be accurate to say that after you tried the 105 1 American Optical, Mine Safety Appliances, the Willson, 2 the Acme and the Welsh, all five of those, that there 3 were .7 percent of the plantwide workers who just 4 couldn't get a fit with any of those respirators? 5 A. Yes. 6 Q. And we could make that same analogy for 7 each one of other worker groups? 8 A. I think so. 9 Q. Now, the irritant smoke challenge that you 10 gave these people, I think you told me earlier that's 11 not something you developed; that's something that you 12 learned from I think you said MSA; is that right? 13 A. I don't remember if it came from MSA or Ed 14 Hyatt. 15 Q. But it came from one of those two groups? 16 A. From one of those two I think. 17 Q. Did you discuss with MSA or American 18 Optical or Willson or Acme or Welsh representatives the 19 fact that this was the result you got with their 20 respirator? 21 A. I don't recall if we had any direct contact 22 with them or not. 23 Q. Did they express surprise to you? 24 MR. HANCOCK: I'm going to object 25 to the form of the question. He just 106 1 said that he didn't recall if they had 2 any conversations. 3 A. I don't recall even talking to them about 4 it. I could have, but I don't recall it. 5 (By Mr. Hobson) 6 Q. At any point in time before you did your 7 study in 19 - that you report in 1966, did any of the 8 manufacturers come to you and tell you that there is 9 something about respirators, that they don't fit 10 everybody and you ought to do this qualitative fit 11 testing to make sure a respirator fits a given person? 12 A. I don't recall anything like that, no. 13 Q. It would be logical then that if you had 14 known that you had to do qualitative fit testing in 15 order to assure a good fit, you would have been doing it 16 far before 1963 or '64 whenever you started this 17 research program? 18 A. I don't know. That wouldn't have been up 19 to me. So, I can't really say. 20 Q. Would you agree with me, Mr. Hill, that if 21 you would have recognized that this could have been a 22 problem, this fit testing of respirators, that you as a 23 Dow employee and someone who cared about the health of 24 your workers, you certainly would have taken any 25 reasonable steps necessary to make sure that this 107 1 equipment fitted these people and it was adequate to do 2 the job as best you could do your work, wouldn't you? 3 A. I guess that would be the common sense 4 approach to it. 5 Q. And that would have been, as far as you 6 understood, Dow Chemical's approach to the problem as 7 well, wouldn't it? 8 A. Not necessarily. We really didn't work for 9 Dow that much. We worked for D.O.E. And we went by 10 their standards, not Dow's. Dow was available if we 11 needed help. But most of our work, we were directed by 12 D.O.E., A.E.C., whatever it was. "These are the 13 standards. These are the things you do." How you do 14 them is pretty much up to you I guess. 15 But we did very little at Dow's direction. 16 It was D.O.E., A.E.C., that we were working for. We 17 answered to them, not to Dow. 18 Q. Certainly I would think that you found 19 Mr. Hoyle to be a professional and competent industrial 20 hygienist, did you not? 21 A. Yes. 22 Q. And wouldn't you expect based on your 23 relationship with Mr. Hoyle that had he been aware that 24 respirators needed to be fit tested in order to assure 25 that you could get adequate protection, he would have 108 1 taken any steps necessary to accomplish that, wouldn't 2 he? 3 A. I can't -- 4 MR. HANCOCK: (Interrupting) I 5 object to the form of the question as 6 it calls for speculation on the part 7 of this witness. 8 MR. HOBSON: Did you get his 9 answer? 10 THE REPORTER: No, I didn't. 11 (By Mr. Hobson) 12 Q. I'm sorry. Would you give us your answer. 13 A. I don't know what he would have done. I 14 can't speak for Harold. 15 Q. Did you ever learn one way or the other if 16 Dow at any of its facilities did qualitative fit testing 17 with respirators like you did at Rocky Flats? 18 A. I have no idea whether they did or not. 19 Q. Did you meet other Dow industrial 20 hygienists when you went to American Industrial Hygiene 21 Association meetings? 22 A. I don't remember meeting any other than 23 these that I have listed that I met when I was in 24 Midland. I don't recall any from any other Dow 25 plant. 109 1 Q. Would you recall if anyone from Dow 2 attended your presentation that you made in 1969 of this 3 paper at the American Industrial Hygiene conference 4 in -- 5 A. (Interrupting) I don't know. No, I don't 6 know. 7 MR. HOBSON: Well, that concludes 8 my questions in the area of 9 asbestos. Does anybody else want to 10 ask any questions in the area of 11 asbestos? 12 13 EXAMINATION BY MR. BLANKS: 14 Q. Good afternoon, Mr. Hill. 15 A. Good afternoon. 16 Q. I'm Joe Blanks, and I also represent some 17 Plaintiffs in these lawsuits. 18 Did you have a chance to visit with Dow's 19 attorneys before your deposition, sir? 20 A. Yes. 21 Q. What kind of things did they talk to you 22 about? 23 MR. ALMQUIST: I'm going to 24 instruct him not to answer those 25 questions as being part of a 110 1 privileged communication between 2 attorney and client. 3 (By Mr. Blanks) 4 Q. I think you told us earlier you haven't 5 hired these gentlemen to represent you, sir. Have you 6 hired them since lunchtime to represent you in this 7 deposition? 8 MR. ALMQUIST: Mr. Blanks, 9 as we went through this - have gone 10 through this before in other 11 depositions, you can have a running 12 objection and -- But I'm not going to 13 allow him to answer any questions 14 concerning communications that he has 15 had with us - Mr. Stuart and myself. 16 (By Mr. Blanks) 17 Q. My question, sir, was: You haven't hired 18 these gentlemen as your attorneys, have you, sir? 19 A. No. 20 Q. And, so, they don't represent you here 21 today, do they? 22 MR. ALMQUIST: Well, we are 23 representing him here today as I 24 indicated in the deposition earlier 25 on. 111 1 MR. BLANKS: I'm sorry, 2 Mr. Almquist. I don't understand 3 that. He under oath has denied that 4 you represent him. So, I don't know 5 that you can just unilaterally declare 6 that. 7 MR. ALMQUIST: He is a former 8 employee of Dow. He's being 9 questioned about matters that arose 10 during his employment at Dow. In 11 preparation for the deposition, 12 Mr. Stuart of Dow and I have 13 discussed it with him. We are Dow's 14 attorneys, and it's privileged 15 communications. 16 (By Mr. Blanks) 17 Q. So, I was asking you, sir, what topics they 18 had talked with you about. And Mr. Almquist - as you've 19 heard him speak -- 20 MR. ALMQUIST: (Interrupting) I'm 21 going to instruct him not to answer 22 those questions. 23 (By Mr. Blanks) 24 Q. So, you are going to follow his 25 instructions and not answer questions I put to you, sir? 112 1 Would that be the case? 2 A. Yes, sir. 3 Q. And you are not paying them any money to be 4 here today and represent you, are you? 5 A. No. 6 Q. And who did you meet with - Mr. Almquist 7 and the other gentleman there? 8 A. Yes, sir. 9 Q. And how many times have you visited with 10 them about your testimony, do you know? 11 A. Twice. 12 Q. And how long - for how longa period? 13 MR. ALMQUIST: We are getting 14 into -- When we start getting into 15 length of time again, I'm going to 16 instruct him not to answer that. 17 MR. BLANKS: Well, certify that 18 question and the earlier one, please. 19 And we will take this up with the 20 Court, Mr. Almquist. 21 (By Mr. Blanks) 22 Q. You are not acting as a consultant to Dow 23 chemical in connection with any of this litigation, 24 are you, sir? They are not paying you to consult with 25 them and give your expert opinions on anything, are 113 1 they? 2 A. They are paying me for my time. I have 3 asked to be paid for my time. 4 Q. Yes, sir. But you are not serving as a 5 consultant to them on industrial hygiene matters in 6 connection with any of this litigation, are you? 7 A. I wouldn't say I am, no. 8 Q. They haven't asked you to, have they? 9 A. No. 10 Q. Have you ever testified before, Mr. Hill? 11 A. I'm trying to think. A couple of 12 compensation cases, but I don't recall that I ever 13 really got on the stand. I think they may have been 14 settled before we went down to the hearings, but I may 15 have testified in one. 16 Q. Pertaining to things up here at Rocky 17 Flats? 18 A. Yes. 19 Q. And that would be the only time that you 20 can remember? 21 A. That I can remember, yeah. 22 Q. Have you ever worked for Dow in connection 23 with any kind of litigation? 24 A. No. 25 Q. Have you given any depositions in any - in 114 1 a lawsuit that involved Dow? 2 A. No. 3 Q. Did you serve on any committees at the 4 A.I.H.A. during your yearsof membership? 5 A. No. 6 Q. What years do you remember belonging; what 7 was the span of time? 8 A. From '61 to '84. '62, maybe. Probably 9 '62. 10 Q. And this article that you were kind enough 11 to bring today about the respirator program, was that 12 the only article you've published? 13 A. There is one other. 14 Q. What was the other one about? 15 A. Beryllium control at Rocky Flats. 16 Q. Did this perhaps discuss the industrial 17 hygiene control measures that you put in place and 18 oversaw there -- 19 A. (Interrupting) Yes. 20 Q. --- to prevent the exposure to the 21 beryllium dust? 22 A. Yes. 23 Q. Where was that published? 24 A. The same as this one. It's a - what they 25 call a Rocky Flats report. 115 1 Q. Do you recall about when? 2 A. Probably about the same time as this one, 3 the late '60's. 4 Q. What kind of dust control measures were you 5 using to deal with the beryllium dust hazard? 6 A. Primarily ventilation control. Some of the 7 operations were done with coolant to reduce dust. 8 Q. So, you were using fluids to help reduce 9 dust? 10 A. On some operations, yes. 11 Q. And then ventilation at the source of the 12 dust creation? 13 A. Yes. 14 Q. And I think you told us most of the dust 15 generation had to do with the machining of the beryllium 16 parts and -- 17 A. (Interrupting) Yes. 18 Q. --- products? So, would you enclose the 19 cutting area and then exhaust from there; or how would 20 that work? 21 A. Yes, we had local exhausts at each 22 operation. Putting -- Most of the operations were 23 almost totally enclosed while the machine was running. 24 Q. And what did this machining amount to? I 25 mean was it cutting tools and grinding, or what was the 116 1 nature of it? 2 A. Mainly cutting. Machining a part from a 3 blank. 4 Q. If you hadn't enclosed the cutting area, 5 the dust would have gotten just into the environment in 6 the workshop? 7 A. Yes. 8 Q. Then you would have had a dust problem in 9 the whole workplace I suppose? 10 A. Yes, sir. 11 Q. So, the most efficient way of controlling 12 that was to deal with it directly at the source I 13 gather? 14 A. Yes. 15 Q. And then theexhaust fans would take the 16 collected dust to - what, to some filter and exhaust it? 17 A. It took it through a cyclone separator to 18 remove the larger chips and then through a filtration 19 system. 20 Q. And exhausted it outside of the building? 21 A. Yes, sir. 22 Q. Now, it was in this same work area that you 23 would do daily air sampling for beryllium dust I 24 believe? 25 A. Yes. 117 1 Q. And was this like area monitoring, or were 2 you monitoring the individual workmen as well? 3 A. When you say "area monitoring," we had air 4 samples on the walls of the building - of the room. But 5 most of the air samples were an airhead mounted right on 6 the lathe itself as close as we could get it to the 7 operation without being in the operator's way. 8 Q. I see. So, you didn't have dust collectors 9 on the individual workmen themselves; you had it right 10 in there -- 11 A. (Interrupting) Normally we didn't. 12 Q. Was it necessary to provide these workers 13 with respiratory protection, too. 14 A. Normally we didn't, no. 15 Q. In other words, you were able to - and 16 actually set out to control the dust where it was being 17 created so that you wouldn't have to protect the worker 18 from breathing it out of the air? 19 A. Yes. 20 Q. So, what were the circumstances that called 21 for respiratory protection from dust in the plants? Is 22 that where you couldn't control it by any other means? 23 A. Yes. I can remember one operation -- We 24 also cast beryllium. And when we cleaned out the molds, 25 there was just no way that you could control the dust. 118 1 This required respiratory protection any time they were 2 doing that or if they cleaned out the casting furnaces. 3 It's kind of nonroutine, but operations that were 4 performed fairly often. 5 Q. Was this in sort of a foundry at the plant? 6 A. One part of the building was a foundry with 7 casting furnaces. Another part of the building was a 8 machine shop. 9 Q. I see. So, you actually did have a real 10 foundry there at Rocky Flats for doing these beryllium 11 castings? 12 A. Yes, sir. 13 Q. Would you tell us what particular kind of 14 dust exposures or potential dust hazards you find in the 15 kind of foundry operation that you had there. You 16 mentioned the cleaning out of the furnaces. 17 A. That was about all. These were vacuuming 18 ducts and furnaces which were completely enclosed during 19 the casting operation. They put it in a charge of 20 uranium. It could have been chips or solid; melt them 21 and pour them into a mold; let them cool; open the 22 furnace and remove the casting. 23 Q. And, then, how do you have a dust problem 24 that would require respirators when you are taking a 25 piece out of the - out of the mold? 119 1 A. Not taking - not taking a piece out of the 2 mold. When you clean up the mold to reuse it. 3 Q. Okay. 4 A. It was wire brushed or something on the 5 inside, and then vacuumed out to get any residue out; 6 and then they reused the mold. 7 Q. So, it was inevitable there that you'd have 8 airborne dust created in the cleaning of the mold? 9 A. Yeah. 10 Q. And I suppose it was impractical to 11 actually capture that dust with a ventilation or exhaust 12 system, and thus you had to use respirators? 13 A. Yeah. We did have a local exhaust system 14 there, but it didn't always catch all the dust that was 15 released. So, as a precaution, they wore respirators 16 when they did that. 17 Q. Did you do any air sampling for dust in the 18 foundry area? 19 A. Yes, sir. 20 Q. Was thissomething youdid routinely just 21 like you would do in the machining area just to be 22 sure? 23 A. Yes. 24 Q. And the reason again was just to know 25 exactly what levels of dust were put in the - in the 120 1 work area that the men might be exposed to? 2 A. The reason we sampled routinely and 3 constantly was to make sure our control equipment - the 4 ventilation stuff was working right. If something 5 happened to the ventilation system, a duct or something 6 got plugged up, we would know it and could correct it. 7 Q. So, it was a means of testing the workings 8 of your other control measures? 9 A. That essentially is the main thing we were 10 doing, yes. 11 Q. And only by actually sampling and gathering 12 data and looking at it would you really know if you had 13 a problem that needed attention; correct? 14 A. Right. 15 Q. And by the same token, I guess that would 16 also be the way you would know whether or not you needed 17 to put a respirator on a person working in that area? 18 A. This would make us aware of any operations 19 that might be a problem, yes. 20 Q. If I understand you then, generally the 21 respirator on the man was kind of the last resort in 22 terms of dust protection? Your goal was to try and nip 23 it in the bud at the source and would fall back on the 24 respirator only when you couldn't - you've done 25 everything else you could do to control it and you 121 1 couldn't do any more except protect the man on his 2 face? 3 A. Yes. Respirators were not to be used for 4 routine protection. We depended on the ventilation and 5 other controls. 6 Q. And what are some of the reasons that, you 7 know, in a practical real world work environment that 8 you knew that you couldn't or didn't want to rely on the 9 respirators as your first line of defense from dust 10 prevention? What kind of problems go with respirators 11 that make them not your best choice for your first 12 control? 13 MR. KNABESCHUH: Object to the 14 form of the question. That implies 15 that something was wrong with the 16 respirator. 17 THE WITNESS: Pardon? 18 MR. KNABESCHUH: I object to the 19 form of the question because he's 20 assuming that there was something 21 wrong with the respirator and that's 22 why you would use it as a last resort. 23 A. It's accepted practice that you don't use 24 respiratory protection as your first line of defense. 25 We always operated on that premise. 122 1 (By Mr. Blanks) 2 Q. I mean the general rule, the men - given 3 everything else being equal - would just as soon not 4 have to wear one; correct? 5 A. I think that's right. 6 Q. They weren't comfortable and were difficult 7 to breathe through; certainly more difficult than not 8 having one; right? 9 A. I'm sorry. 10 MR. HANCOCK: Object to the form 11 of the question. Assumes facts not in 12 evidence. 13 (By Mr. Blanks) 14 Q. It was certainly harder to breathe through 15 a filter than to breathe just through your nose? 16 A. Yeah, that's probably true. 17 Q. And, so, as part of your routine industrial 18 hygiene program then to deal with the dust in the - in 19 your plant that could cause lung diseases, you did air 20 sampling daily, both around the machining and in the 21 foundry and watched for any variations that would 22 suggest a problem with the goal of being sure that you 23 were protecting the workers from breathing these 24 materials that could be harmful to them? 25 A. True. 123 1 Q. Now, beryllium dust doesn't to your 2 knowledge cause or is believed to cause any kind of 3 cancer, does it? 4 A. To the best of my knowledge, no. 5 Q. So, it just causes like a lung fibrosis 6 or -- 7 A. (Interrupting) Yeah. I don't know how you 8 would exactly describe the effects of it. 9 Q. But even without the concern that it might 10 be a carcinogen, Dow was still concerned enough to take 11 these industrial hygiene precautions to protect the men 12 from breathing even small amounts of it? 13 A. This again wasn't Dow necessarily. This 14 was -- D.O.E. prescribed what we did more. 15 Q. Now, D.O.E. was the owner - the Department 16 of Energy you are saying was the owner of the plant 17 there; right? 18 A. Right. 19 Q. And they prescribed kind of the safety 20 rules and the overall safety program for your people who 21 were contractors to D.O.E.? 22 A. Right. The overall safety program, the 23 standards we would follow, the procedures we followed to 24 a certain extent. 25 Q. They were specified by the owner of the 124 1 plant? 2 A. Yes. 3 Q. That is the government? 4 A. Yes, sir. 5 Q. And Dow's employees, who were really -- I 6 guess Dow was working as a contractor for the 7 government - for the plant owner; right? 8 A. Yes, sir. 9 Q. And, so, its employees there then were 10 getting the benefit of the safety program that the plant 11 owner set up and specified and required you-all to 12 follow; correct? 13 A. Yes, sir. 14 Q. Would they make inspections sometimes to 15 see that you were, in fact, you know, following the 16 safety rules that D.O.E. set? 17 A. Yes, sir. 18 Q. And it certainly was customary for you to 19 cooperate with them and to take the benefit of the 20 advice and the guidance that the government that owned 21 the plant gave to you; right? 22 A. Yes, sir. 23 Q. Now, wasit your thought then that 24 certainly the people that owned the facility perhaps 25 knew a little bit more about some of the hazards that 125 1 existed there in the processes and the work that was 2 being done than maybe Dow did at the outset? 3 A. I would say at the outset -- This plant was 4 unique in the country, and I suspect that's true. 5 Q. Does your article on beryllium dust 6 control - it does talk about the same things we have 7 been discussing for the last several minutes, the 8 control measures, the sampling in order to evaluate the 9 hazards, the respirator program and so forth? 10 A. I haven't seen the article for years; but 11 as far as I recall, yes. 12 Q. And you were the author of it? 13 A. I was co-author with S. E. Hammond, who was 14 co-author on this article, too. He was my boss. 15 Q. I see. Did he actually have you write it? 16 I have heard that happens sometimes. 17 A. Some of it, but he was involved with it, 18 too. 19 Q. But in any event, the article did reflect 20 the best knowledge that you and he and I guess Dow had 21 at that time about dust control as you describe it in 22 the article? 23 A. Well, you keep bringing Dow in. And I 24 don't -- They weren't involved in is. We used Dow as a 25 resource. If we needed help, we called them. But for 126 1 most of our day-to-day operations, we were under D.O.E. 2 control. We followed their standards. We answered to 3 them. 4 Q. But by the same token, the people in 5 Midland, for instance, were available to you as a 6 resource to provide information and advice. And the 7 information that you had and the expertise you developed 8 in that Dow operation at Rocky Flats would also have 9 been available to others in the Dow company who might 10 want it or need it; correct? 11 A. It would have been available, yes. 12 Q. And you certainty weren't keeping these 13 reports or studies secret from them, were you? 14 A. No. 15 Q. And I mean the probability is pretty high, 16 isn't it, that, in fact, you did send out or your boss 17 probably sent on a copy of that report to his superiors 18 up in Midland? 19 A. I don't know if they did or not. 20 Q. At least if for no other reason than to 21 make the two of you look a little better? 22 A. I can't say what happened to them. 23 Q. Did you know Mr. V. K. Rowe? 24 A. I think I met him while I was up there. 25 Q. Do you recollect he was up there in 127 1 Midland? 2 A. When I was, yes. 3 Q. Do you know any more about him than that? 4 A. No. I think he's a toxicologist. I've 5 heard his name mentioned since then, but I can't tell 6 you in what context. 7 Q. As far as you can remember, he didn't give 8 you any help with any particular problems while you were 9 at Rocky Flats? 10 A. I don't recall that he did. 11 Q. And he never came down there to visit that 12 you can remember? 13 A. I don't remember that he did, no. 14 Q. After you became the industrial hygienist, 15 did you have visits to you by Mr. Hoyle or any of his 16 peers from Midland? 17 A. I can remember Harold Hoyle being there, 18 and I can remember Don Irish; but that was after I 19 was -- I think at least Harold Hoyle was there after I 20 was the industrial hygienist. But I don't remember that 21 Don Irish was. 22 Q. And what was Mr. Irish; was he an 23 industrial hygienist or a toxicologist or a doctor; do 24 you recall? 25 A. It was Dr. Irish. I think he was a Ph.D. 128 1 He was in the biochemical research labs at that time. 2 Q. This would have been back in the '60's? 3 A. '50's or '60's. 4 Q. And Mr. Hoyle at that time was just one of 5 the higher-ups at the biochemical research lab as you 6 remember? 7 A. As I recall he was the manager of the 8 industrial hygiene group up there. 9 Q. I see. To your understanding was the - was 10 the Dow industrial hygiene group sort of located in the 11 biochemical research laboratory in Midland? Was that 12 where their main office was? 13 A. Yes, sir. 14 Q. And that's as far back as you can remember 15 that that would have been so? 16 A. As far back as I know, yes. 17 Q. And to your understanding the industrial 18 hygiene group reported to the head of the biochemical 19 research lab? 20 A. I think so. 21 Q. Now, I think you said that you had medical 22 doctors in your plant, inferring from that that there 23 were medical doctors probably in other Dow plants; and 24 indeed that there was a medical department with Dow. 25 Would that part be true? 129 1 A. That I don't know. I'm not that familiar 2 with other Dow operations. The only one I'm familiar 3 with at all is Midland. And they did have M.D.'s on the 4 staff there; but what they did, I don't know. 5 Q. But your medical -- I'm sorry. Your 6 industrial hygiene group or department at Rocky Flats 7 did not report to the medical department, did it? 8 A. Our medical group at Rocky Flats reported 9 to D.O.E., just the same as we did eventually. 10 Q. But if we look in the du Pont -- I mean - 11 I'm sorry. If we look at the Dow organizational scheme, 12 was industrial hygiene part of the medical department or 13 was it independent from it? 14 A. You are confusing me. Are you talking 15 about Rocky Flats or --16 Q. (Interrupting) Yes, sir. 17 A. --- Dow or Midland? 18 Q. Well, let's take Rocky Flats first. Your 19 industrial hygiene department was independent from the 20 doctor there; you didn't report to the doctor, did you? 21 A. We didn't report to the doctor. Our 22 group -- The medical department and the other health and 23 safety groups reported to one man in the Dow 24 organization at Rocky Flats. 25 Q. And his title was? 130 1 A. Director of Health and Safety or something 2 similar to that. It changed in time. 3 Q. Sure. And then presumably he reported to 4 somebody higher up in Dow with a similar job title of 5 health and safety? 6 A. Well, our director reported to the plant 7 manager. Now, what his relationship was with Midland, I 8 don't know. 9 Q. And at Midland you don't know then whether 10 or not the industrial hygiene group was under the 11 medical group or independent from them or how that fit 12 together, do you? 13 A. No. 14 Q. Well, I don't either. That's why I was 15 asking. Would you tell us just a little bit about your 16 library there at Rocky Flats. You mentioned that you 17 had some resources. What sort of materials did you have 18 available to you there? 19 A. That's a long time ago. 20 Q. Just the best you can do. 21 A. We had Sax. Can somebody tell me the title 22 of his book? Dangerous Properties of Industrial 23 Materials. Is that Sax? There was another one similar 24 to that. And it seems like Chemical Rubber Company put 25 it out. Industrial hygiene journals. Material Safety 131 1 Data Sheets. 2 Q. You had like chemical abstracts or the 3 C.R.C.? Did you already mention that one? 4 A. Chemical Rubber Company. I can't think 5 just offhand what we had. 6 Q. Public Health Reports? 7 A. Not consistently. And in later years we 8 got the - oh, the Code of Federal Regulations. What's 9 the -- It's basically after OSHA and them came in. It 10 would be circulated through all of the health and safety 11 groups to see if there was anything there that concerned 12 any of our groups. OSHA regulations and in later years 13 NIOSH publications. 14 Q. What kind of materials did you go looking 15 for when you had to train yourself as an industrial 16 hygienist? And I don't mean to mischaracterize that, 17 but I gather that you kind of got thrown into the fire 18 there and had to learn in a hurry. 19 A. As I mentioned, beryllium was the biggest. 20 That was the day-in and day-out thing, and other things 21 as they came up. We might have degreasers in the 22 maintenance shop that we wanted to keep an eye on. 23 Solvents, reagents in the laboratories. Although those 24 were small, small amounts were pretty well contained in 25 hoods, chemical hoods, this sort of thing. Noise 132 1 problems, illumination. Just about anything that would 2 normally come up. 3 Q. I think I miss -- I did a poor job of 4 asking the question. Let me try again. I was wondering 5 not what sort of problems you were forced to deal with 6 all of a sudden, but rather what you did to try and 7 educate yourself in order to handle your new job, you 8 know, when you became the industrial hygienist. 9 A. Well, that's hard to say. That's a long 10 time ago. I guess if I had to say if a problem came up, 11 we looked around to see what we had in the way of 12 literature on it and what we should do about it. Take 13 them one at a time as they came. 14 Q. So, you were dealing sort of - learning on 15 the job with specific problems as they arose, seeking 16 out the resources and the literature that would bear on 17 that and -- 18 A. (Interrupting) Yeah. I had eight years of 19 experience in health physics. And there is close 20 correlation between the two as far as I'm concerned. 21 And we were pretty well aware being in health physics of 22 the operations around the plant site, what was going on 23 before I went into industrial hygiene. So, it wasn't 24 like somebody coming in from the outside and saying, 25 "Here, learn all this. 133 1 Q. Sure. And how long did you spend in 2 Midland around '62 when you went up there to be trained 3 and oriented to the Dow industrial hygiene program? 4 A. Three weeks. 5 Q. So, they -- The folks up there that were 6 taking you around were trying to give you kind of a cram 7 course in that period and show you the nature of 8 problems you'd face and the kind of resources that you 9 could use to deal with them? 10 A. Yeah. 11 Q. And did you get some practical training in 12 doing sampling and monitoring and such as that? 13 A. Oh, not really hands on. I spent mainly 14 most of the three weeks with the industrial hygienists 15 there when they would go out to do something. But as 16 far as actually doing it, no. 17 Q. Did these gentlemen seem to you to be 18 pretty competent and capable from the perspective of 19 what you were then, just a novice? 20 A. Yes. 21 Q. And were they as you observedequipped by 22 training and experience and I guess with equipment to 23 deal with like dust problems that they would encounter 24 in Dow facilities? 25 A. I'm not sure if any dust problems came up 134 1 while I was there. So, I can't really say. 2 Q. Had you had experience sampling for dusts 3 like the beryllium dust before you went to Midland in 4 '62? 5 A. Some experience in sampling for radioactive 6 materials, yes. 7 Q. But not for just the plain beryllium dust? 8 A. Yes, beryllium dust. 9 Q. That, too? 10 A. Yes. 11 Q. And somebody at Rocky Flats had taught you 12 about doing that; so, you didn't need to be taught in 13 Midland? 14 A. I guess you could say that I had picked it 15 up whether I was taught or just from watching somebody 16 else. 17 Q. Did they have like an industrial hygiene 18 laboratory at Midland? Do you remember seeing that? 19 A. Yeah, they had several of them. 20 Q. Several of them? 21 A. They had four or five different labs out 22 there. 23 Q. Did you have any kind of an industrial 24 hygiene lab at Rocky Flats? 25 A. They didn't when I started. We developed 135 1 one over a period of time. 2 Q. Was this again something you had to sort of 3 put together on your own, or did you have the benefit of 4 suggestions and advice from higher up in the 5 corporation? 6 A. Both. We put it together largely 7 ourselves. But if we had any problems or needed some 8 suggestions, we would call Harold and ask him how to do 9 this. 10 Q. And he certainly knew how to do it I 11 suppose? 12 A. Yeah. If he didn't, one of his people did. 13 Q. How big a work force did you have at Rocky 14 Flats? I mean over 2,000 people was it? 15 A. It varied. When I went out there, I was 16 about No. 900. And I think at one time it may have 17 gotten up to over 7,000. So, it kind of varied up and 18 down. 19 Q. We talked about asbestos at the Rocky Flats 20 facility. You haven't thought since Mr. Hobson visited 21 with you about that of any other instances of your 22 encountering asbestos materials at Rocky Flats, have 23 you, other than the ones we have talked about this 24 morning? 25 A. I can't think of any others. 136 1 Q. And as far as you know, you didn't have any 2 encounter with it or industrial hygiene aspects of 3 dealing with it when you were at Midland or elsewhere? 4 A. I don't think it ever came up while I was 5 there. 6 Q. Was it ever a topic of your discussions 7 with the representatives of the respirator companies 8 that we spoke of today? 9 A. No. Bear in mind -- Bear in mind on our 10 respirator program, this was aimed at plutonium. We 11 figured if we had a respirator we could use in a 12 plutonium area, we could use it for any other material 13 we may have - any other particulate material on the 14 plant site. And this is what it was aimed at. We 15 weren't thinking of beryllium. We weren't thinking of 16 uranium; of course, not asbestos. 17 Q. Yes, sir. 18 A. We were looking at plutonium. This is the 19 one we were concerned about controlling. And if we 20 could do that with a respirator, then we could use that 21 respirator anywhere else on the plant site. If we got a 22 respirator without a high-efficiency filter anywhere on 23 the plant site, chances are that could show up in the 24 plutonium area. And this is why we stayed strictly with 25 the high-efficiency filter. I kept a respirator in my 137 1 desk. If I wanted to go to the plutonium area, I took 2 it with me. I could take it into the uranium area if I 3 needed to. 4 Q. Or anywhere else in the plant? 5 A. Anywhere else that there could be 6 particulate airborne material. So, our whole program 7 was aimed at plutonium. The rest of the stuff was 8 just fell underneath. It was there, but we had the 9 protection for it. 10 Q. That was your highest risk material there 11 you thought? 12 A. Yeah. 13 Q. And it was in the form of a dust, was it? 14 Is that accurate to say that? 15 A. Yes. 16 Q. But eventhough the beryllium dust, for 17 instance, posed a relatively much lower risk to health 18 than say plutonium, you still went to some fairly good 19 lengths to protect the workers from breathing the 20 beryllium dust? 21 A. Yes. 22 Q. Do you recall ever knowing of any 23 asbestos-containing products which Dow manufactured at 24 anytime, sir? 25 A. I don't recall knowing of any. 138 1 Q. I gathered - and not meaning to be 2 disrespectful, but you were somewhat out of the main 3 stream out here at Rocky Flats given the nature of the 4 facility and the special relationship that the company 5 had there with the Department of Energy? 6 A. That's true. 7 Q. You discussed earlier the medical 8 monitoring program with respect to some of the more 9 serious health risks that you expected to have to deal 10 with at Rocky Flats, and the fact that you did chest 11 X rays for people who had exposure to some of the toxic 12 dusts, including the beryllium I presume. 13 What was the policy there about sending 14 people who had bad films, films suggesting that they had 15 a dust disease of the lung back into a potentially dusty 16 work environment? Would you transfer them to some 17 cleaner work? 18 A. I don't know, and I don't remember that 19 that ever came up. 20 Q. You don't recall ever having reports to you 21 of people with bad films? 22 A. I can't say for sure. I just don't know 23 that there were any. There could have been, but I don't 24 know. 25 Q. So, you don't know even whether there was a 139 1 policy about reassigning workers that showed signs 2 perhaps of pneumoconiosis? 3 A. No. There were -- There were procedures on 4 radiation exposures where people could be restricted 5 from radiation areas. But on these others, I don't know 6 if it ever came up. 7 Q. So, if they had evidence that they had 8 excessive radiation exposure, then they would be 9 reassigned to an area where they would be sure to have 10 far less exposures than before? 11 A. Yes. 12 Q. Is that the idea? 13 A. Yes, sir. 14 Q. So that they wouldn't get enough total 15 exposure to cause a disease or anillness; correct? 16 A. Yes. 17 Q. And would that same principle make sense to 18 you in dealing with a dust disease? 19 A. Oh, I guess it wouldn't be up to me. This 20 would be a medical decision. 21 Q. Yes, sir. But it's anindustrial hygiene 22 principle. And it would make sense that if a man had 23 been overexposed to dust, that you as an industrial 24 hygienist would want to then make sure that in his 25 future work that he had very minimal dust exposure; is 140 1 that correct? 2 A. I guess that would be common sense, yes. 3 Q. Did you understand as you learned more 4 about industrial hygiene that the main important part of 5 your job was really the prevention of occupational 6 diseases? 7 A. Yes. 8 Q. And that the fundamental way that you would 9 prevent the occupational disease was by preventing the 10 exposure to the toxic material that could cause the 11 disease; correct? 12 A. True. 13 Q. Was it Dow's policy in the Rocky Flats 14 plant to warn or instruct the people working there about 15 the potential health hazards of the materials that they 16 were working with on a daily basis? 17 A. It was the policy. I don't know if it came 18 from Dow or D.O.E.; but it was plant policy that, yes, 19 people were told. 20 Q. So that, for instance, you made the 21 individual worker aware about what could happen if he 22 had too much exposure to various substances? 23 A. Yes, sir. 24 Q. And one of the reasons for that I suppose 25 would be to help him to understand the need for say 141 1 taking the precautions that you prescribed or for using 2 the respirator when you said to use it; correct? 3 A. I would suspect so, yes. 4 Q. Do you know of any studies that were done 5 of Dow employees that looked for occupational diseases 6 whether they were epidemiology studies or mortality 7 studies, morbidity studies? 8 A. I'm not familiar with any. 9 Q. What year was it you ceased to be a Dow 10 employee? Was that '75 did you say? 11 A. '75. 12 Q. What special efforts did you have to take 13 to comply with the Walsh-Healey Act at Rocky Flats? Do 14 you know? 15 A. I can't even remember what it was. What 16 was it? 17 Q. Well, I think we could fairly call it the 18 predecessor of the Occupational Safety and Health Act in 19 that it dealt with those issues. But I think it was 20 directed toward government contractors specifically as 21 opposed to all employers. 22 A. I don't recall the act specifically. We 23 were always under D.O.E., and they specified what 24 standards we would follow in health and safety. 25 Q. So, to the extent that there was special 142 1 requirements in that act, you don't know what they were; 2 but presumably D.O.E. was enforcing them? 3 A. Yeah. 4 Q. Did it strike you as oddthatthe owner of 5 the plant where you were working as the employee of a 6 contractor would be making the safety rules for you and 7 your fellow workers? 8 A. Say that again. 9 Q. Did you find it peculiar that it was the 10 plant owner as opposed to your employer who was 11 primarily responsible for determining safety standards 12 that were going to be followed there for men like 13 yourself who were just employees of a contractor? 14 A. No. I guess it was the way of life. I 15 really hadn't thought about it. 16 Q. And did you tell us earlier that you recall 17 no document or instruction or information that you got 18 from Dow, whether it was from Midland or Mr. Hoyle's 19 department or anybody else, that told you about the 20 known or suspected health hazards of asbestos? 21 A. I don't remember specifically getting any 22 information like that, no. 23 Q. Did you ever get any such information from 24 Rockwell after 1975 when you became their employee? 25 A. I don't recall if we did, no. 143 1 Q. Do you recall what kind of dust levels you 2 were measuring in the foundry area in connection with 3 the mold cleaning? 4 A. Not just offhand I can't, no. 5 Q. Do you remember the kind of equipment you 6 used to do your air sampling in the foundry area? 7 A. We had a central vacuum system. 8 Q. Yes, sir. 9 A. With air sampling heads with - I think it 10 was Whatman 41 filter papers on it. It pulled air 11 through the filter all day. And then those were 12 analyzed in the labs for beryllium. 13 Q. And how did you express these - the results 14 of this analysis in terms of concentration of so many 15 particles per cubic foot or c.c. of air or how did you 16 17 A. Micrograms per cubic meter. 18 Q. So, you expressed it in terms of weight or 19 volume? 20 A. Volume. 21 Q. What were the main feared health effects of 22 the plutonium that you knew of while you were at Rocky 23 Flats? 24 A. I don't know what the main ones would have 25 been. They were concerned about lung exposure, kidney 144 1 exposure with inhalation. Inhalation was the problem. 2 There was some external radiation exposures, but I think 3 they were more concerned with inhalation. 4 Q. And the fear was that the inhaled plutonium 5 particles would cause cancer in the worker? 6 A. I guess it was cancer. I wasn't really 7 that familiar with it. 8 Q. But for whatever reason, the plutonium was 9 known then to be shall we say much more toxic than the 10 other materials that your folks worked with at Rocky 11 Flats? 12 A. I think you could say, yeah. 13 Q. And it was for that reason that the extra 14 precautions were taken and the best filters were used 15 with the respirators and you were very careful in your 16 medical monitoring? 17 A. I think that's the primary reason, yes. 18 Q. Would it make sense to you to take those 19 same kind of precautions in dealing with other known or 20 suspected carcinogens that you encounter in the 21 workplace? That would be the reasonable thing to do, 22 wouldn't it? 23 A. I guess it would depend on the 24 circumstances and the amount involved and all that sort 25 of thing, yes, as to what precautions you would take. 145 1 Q. And again, you as an industrial hygienist 2 would have determined the circumstances by actually 3 measuring, sampling, monitoring and observing the 4 conditions? 5 A. Yes. 6 Q. In other words, basing your decisions, your 7 judgments on objective data obtained in the field in the 8 actual workplace? 9 A. Yeah. 10 Q. Did you have any inspections of your plant 11 there by people from insurance companies that you can 12 remember, risk assessments or health and safety audits 13 or inspections? 14 A. No, not that I recall. 15 Q. Do you recall that Dow had any particular 16 insurer during those years? 17 A. They had a Workmen's Comp. insurer, but I 18 can't tell you --19 Q. (Interrupting) You don't remember who? 20 A. Pardon? 21 Q. You don't remember who it was? 22 A. No, I sure can't. 23 Q. Let me just ask you about a few names. And 24 I apologize in advance if you've already spoken to some 25 of them. But these are some folks that I think were 146 1 with Dow at one time or another, and I just wonder if 2 you knew them or what they did. How about Dale 3 Bakowski? 4 A. Yes, I know Dale. 5 Q. Was he working out here in this area, in 6 Rocky Flats? 7 A. Yes. 8 Q. Did you mention him earlier as being at the 9 plant with you? 10 A. No. 11 Q. It slipped my memory if you did. 12 A. No. He was in the labs. He wasn't in the 13 industrial hygiene group. 14 Q. Working in the labs at Rocky Flats? 15 A. Yes, sir. 16 Q. Do you remember him as a member of the 17 A.I.H.A., though, along with you during that period? 18 A. Yeah. 19 Q. He was - what, a chemist? 20 A. Yes. 21 Q. But not an industrial hygienist as such? 22 A. No. 23 Q. Did he spend most of his career out here in 24 Colorado? 25 A. Yes. 147 1 Q. At this plant? 2 A. Yes. 3 Q. How about R. H.Boundy,B-o-u-n-d-y, from 4 Midland? 5 A. That name I have heard from the olden days, 6 but I never met him. I don't know what he did or 7 anything. 8 Q. How about Roy Degesero. 9 A. That isn't familiar. 10 Q. I believe we havementioned Dr. R. A. 11 Erhart from Coatings Technical Service. Does that ring 12 a bell. 13 A. What it is again? 14 Q. Roy -- I'm sorry. Dr. R. A. Erhart or 15 Erhart. 16 A. That name isn't familiar to me. 17 Q. Do you know what Coatings Technical Service 18 is? 19 A. No. 20 Q. How about Dr. H. H. Gay? 21 A. I have heard the name as he was one of the 22 physicians at Midland. 23 Q. You didn't meet him? 24 A. Didn't meet him that I recall. 25 Q. Ferrell David Hobbs? 148 1 A. Yes, I know Ferrell. 2 Q. Would you tell us about Mr. Hobbs. 3 A. He I think was a chemist at the plant, and 4 then he came into the environmental group for a while. 5 And then he left and I think went with Dow to Memphis or 6 Nashville or somewhere for a while, and then he came 7 back out to the plant. I think he came back after I 8 left. 9 Q. Returned to Rocky Flats? 10 A. I think he's in their environmental group. 11 Q. Now, did Dow resume running that plant 12 after Rockwell - Rockwell's contract ended? 13 A. Oh, no. 14 Q. No? 15 A. No. 16 Q. So, you think that Mr. Hobbs came back to 17 Rocky Flats as an employee of -- 18 A. (Interrupting) Rockwell. 19 Q. Rockwell. Do you know Bruce Horbath, 20 H-o-r-b-a-t-h? Horbath. 21 A. No, I don't think so. 22 Q. We spoke of doctor -- Was it Dr. Irish? 23 A. Dr. Irish. 24 Q. Was it Donald Irish? 25 A. Uh-huh. 149 1 Q. Do you know if that gentleman is still 2 living? 3 A. No, I don't. 4 Q. Was he -- Would you say he was old when you 5 knew him -- 6 A. (Interrupting) He was old when I knew him, 7 yes. 8 Q. --- in the '60's? 9 A. Yes. 10 Q. How about Wilbert Kittinger? 11 A. Yeah, I know Wilbert. 12 Q. What can you tell us about him? 13 A. He was a health physicist at the plant. I 14 think he was probably my first boss out there the first 15 year I was there. And he left and I think went with Dow 16 to someplace in California or stayed with Dow. I don't 17 know if he left before Rockwell came or when Rockwell 18 came. The last I heard he was still in Walnut Creek or 19 Pleasanton or somewhere out there. I don't know where. 20 Q. And his background was as a health 21 physicist? 22 A. He was a health physicist at the plant. 23 And I think he was probably an engineer of some kind, 24 but I just don't recall. 25 Q. How about was Basil K. Leon? 150 1 A. No. 2 Q. Don McCollister, Donald -- 3 A. (Interrupting) I have heard the name. But 4 I didn't know him. 5 Q. Kenneth Olson, Kenneth J. Olson from the 6 biochemical research lab in -- 7 A. (Interrupting) It seems like there might 8 have been a toxicologist by that name when I was up 9 there. I may have met him, but I really can't say I 10 know him. 11 Q. How about Edward A. Putzier? 12 A. He was my boss most of the time I was out 13 at the plant. 14 Q. That's P-u-t-z-i-e-r. 15 A. Right. 16 Q. Does that sound right? Is he still living? 17 A. Yeah. 18 Q. Out in this area? 19 A. Yeah, in Boulder. 20 Q. And what was his background or his 21 professional training? 22 A. He was a -- He was a health physicist. I 23 think he had a degree in physics and then went through a 24 fellowship program at Rochester, was it, back in the 25 early '50's, late '40's in health physics. 151 1 Q. And to your understanding spent most of his 2 career at this facility in the Boulder area? 3 A. He was here from - before I was - probably 4 1952, and retired a couple of years before I did. 5 Q. I think you mentioned Arnold Schaffer 6 earlier. 7 A. Yes. 8 Q. Could you tell us any more about him. Did 9 you know him from Midland? 10 A. He was one of the industrial hygienists 11 that was there. I don't know what his background was or 12 anything. 13 Q. How old would you estimate him to be then 14 or now? 15 A. I would guess he would be in his 60's, but 16 I don't really remember. It seems like he might have 17 been a little younger than I am, but I don't know. 18 Q. And did you mention Edward Schneider as 19 somebody that you knew from Midland? 20 A. Yes, he was an industrial hygienist when I 21 was there. 22 Q. Had he been with the company long to your 23 recollection? 24 A. I don't know. 25 Q. Do you know where he went, or is he still 152 1 with the company or was he when you left? 2 A. I don't know that either. We didn't have 3 much contact with Midland after Rockwell came in. 4 Q. And Lawrence Silverstein you mentioned. 5 A. I knew him, yes. 6 Q. He was trained as an industrial hygienist, 7 too, wasn't he? 8 A. He was I think primarily a health 9 physicist, but he was in our industrial hygiene group up 10 there. 11 Q. I see. Did you stay in touch with him over 12 the years? 13 A. No. 14 Q. How about John Staudt, S-t-a-u-d-t? 15 A. The name isn't familiar. 16 Q. Ted Torkelson? 17 A. Ted was in our biochemical research lab. I 18 don't know if I met him, but the name is familiar. 19 Q. And Mark Wolf from Midland. 20 A. That's another one I think was in their 21 labs, but I don't remember if I met him or not. 22 Q. How many folks worked up at that lab to 23 your recollection? Would you say it was -- I know you 24 are going to have to make an estimate, and it's going to 25 be rough. But in the '60's when you went there, how big 153 1 a place was it? 2 A. I don't know. The group I was with as I 3 mentioned I think had six or seven industrial 4 hygienists. And then I can think of four or five in the 5 toxicology group. I don't know how many beyond that 6 if they had technical people, technicians in there or 7 just what the deal was. The only ones I know are 8 probably the ones I have met, and we have named most of 9 those I think. 10 Q. And there were several laboratories in the 11 facility I guess? 12 A. It was a fairly good-sized building, yes. 13 Q. Do you have any idea how long it had - the 14 biomedical research lab had been in existence? 15 A. No. 16 Q. Let me just try another half dozen names on 17 you here. Did you know a John A. Jones from your years 18 in the Industrial Hygiene Association? 19 A. The name isn't familiar. 20 Q. How about a William Revoir or 21 R-e-v-o-i-r? 22 A. He was one of the respirator company 23 representatives, but I can't tell you which one now. 24 Q. Is this a man you would have met in dealing 25 with respirator companies or in just going to A.I.H.A. 154 1 meetings or both? 2 A. Well, both. But I think he was the area 3 sales representative or something like Jack Leach was 4 for MSA. 5 Q. I see. 6 A. And the name is familiar. And he was with 7 one of the respirator companies, but I can't remember 8 which one. 9 Q. I see. But apparently you met him 10 somewhere along the way? 11 A. Yeah. 12 Q. How about Mr. Yurgilas, Y-u-r-g-i-l-a-s, 13 Yurgilas? 14 A. It isn't familiar. 15 Q. That sounds like one you would remember, 16 huh? I have a few more here, but you are doing great. 17 As long as you will bear with me, we'll struggle on. 18 How about Eldrid Barnard? 19 A. The name isn't familiar. 20 Q. Robert Grubb? 21 A. No. 22 Q. I'm telling you these would all be 23 industrial hygienists from somewhere in your last years 24 with Dow that you might have known from the association. 25 W. Julian Carter? 155 1 A. No. 2 Q. Harry Kotabish or Kotabish? 3 A. No. 4 Q. Charles Ethridge? 5 A. No. 6 Q. Gene Flumerfelt? 7 A. No. 8 Q. Bob or Robert Haller or Haller? 9 A. No, I don't think so. 10 Q. Did you mention a Mr. Merkle earlier, 11 Merkle? 12 A. Bob Merkle. 13 Q. It's Bob Merkle? Robert? 14 A. Yeah. 15 Q. And he was with -- 16 A. (Interrupting) I think it was MSA. 17 Q. --- MSA in Pittsburgh? 18 A. Yeah. 19 Q. So, you knew him over the course of some 20 years? 21 A. Yes. 22 Q. Was he an elderly gentleman at the time you 23 were doing your respirator work, or was he more a 24 contemporary -- 25 A. (Interrupting) I would say contemporary, 156 1 but I don't - wouldn't swear to it. 2 Q. Did you maintain any kind of contact with 3 him up until your retirement? I presume that you would 4 still have been dealing with the same vendors even after 5 you became a Rockwell employee. 6 A. Our main -- Our main contact with like MSA 7 was Jack Leach, who was in the Denver area. And once in 8 a while Merkle would come out, and the two of them would 9 come out to the plant and see if we needed anything, if 10 we could help them, if they could help us, this sort of 11 thing. The other respirator companies did the same 12 thing. Different people would be out occasionally. 13 Q. So, they would actually come even from 14 Pittsburgh to visit your facility here and meet with you 15 face to face and talk about problems, products, what 16 have you? 17 A. Yeah. 18 Q. But you didn't even have to invite them to 19 come out; sometimes they'd just show up as a sales 20 call -- 21 A. (Interrupting) I don't think ... 22 Q. --- a courtesy call? 23 A. I don't think we did. 24 Q. You didn't invite them? 25 A. No. 157 1 Q. And did they have anything helpful to 2 offer to you when they would make these visits, or was 3 it just really more in the nature of a sales pitch? 4 A. It was -- It was I think just a contact. 5 And if they had anything new in the way of respiratory 6 protection, they would let us know about it. It wasn't 7 necessarily a sales pitch, but I think they did keep us 8 up to date on what was available, not only on 9 respirators but their other safety equipment. 10 Q. And they would actually I suppose get you 11 to take them around the plant and look at the work 12 conditions or the uses being - that were being made of 13 their products and the conditions under which the men 14 wearing the respirators might be working, too, wouldn't 15 they? 16 A. No. 17 Q. You never let them see? It was a secret? 18 A. You couldn't. 19 Q. Oh, is that right? 20 A. Yeah. 21 Q. How about George Morsh; do you recall that 22 name? 23 A. No. 24 Q. Richard Swift? 25 A. No. 158 1 Q. Joseph Zatec or Zatec? 2 A. The name is slightly familiar, but I can't 3 tell you who he is. 4 MR. BLANKS: Well, I think that's 5 all I'm going to ask you in the realm 6 that touches on asbestos. And these 7 other people, every single one of them 8 get an opportunity to interrogate you. 9 MR. ALMQUIST: Well, I think I'm 10 going to choose to save what 11 questions, if I have any, for the end. 12 I want you-all to get through with 13 everything you have to ask him, and 14 then we will ask ours. 15 MR. BLANKS: Well, I'm passing 16 the witness on this topic to anybody 17 else that wants to touch it, which is 18 the way we have been doing them; 19 unless you want to do it differently. 20 MR. ALMQUIST: I indicated to you 21 that when you-all are completely 22 through with everything, I may have 23 a few questions for him then but not 24 until then. 25 MR. BLANKS: Well, how about 159 1 anybody else? 2 MR. BEASON: You-all are just 3 finishing asbestos right now? 4 MR. BLANKS: Well, that's what I 5 was suggesting. Mr. Almquist is 6 asking us to go on and finish, finish. 7 I'm happy to cooperate with him as 8 always. And despite the fact that he 9 wrongly instructs witnesses not to 10 answer fair questions - but we will 11 deal with that at another time and 12 place. 13 MR. ALMQUIST: I don't want to 14 pay for the speech. 15 MR. BLANKS: It was a short 16 speech. And let me say for the 17 record, that Mr. Almquist is a fine 18 attorney and one of my good friends. 19 I'm passing the witness. It would 20 appear that they have no questions. 21 So, Mr. Hobson, if you would like to 22 go ahead. 23 24 RE-EXAMINATION BY MR. HOBSON: 25 Q. I would like to finish in the area of 160 1 asbestos for me, which is just a couple of quick 2 questions that I forgot earlier. Did you ever use the 3 Bausch & Lomb dust counter out here at Rocky Flats? 4 A. I am not familiar with it by that name 5 anyway. 6 Q. I understand it's a portable instrument 7 that you could use to draw a dust sampling into it. It 8 has a microscope type of device built onto it. You have 9 not used that kind of instrument before? 10 A. I'm not familiar with it, no. 11 Q. Did you have midget impingers at your 12 disposal to use for dust sampling at Rocky Flats? 13 A. Yes. 14 Q. And would that have been true in the 1961 15 time period when you first came into industrial hygiene? 16 A. I don't think we had midget ones that 17 early. I don't know when they came along. And I don't 18 recall if they were that early. 19 Q. Did you have the full size impingers before 20 you had the midget impingers? 21 A. Yes, sir. 22 Q. And I take it you were familiar with how to 23 do dust counts using the impinger technique? 24 A. Yeah, I think we could. 25 Q. Did you yourself utilize the impingers for 161 1 doing dust counts? 2 A. I can vaguely recall taking some samples 3 with them. What we used them for, I don't remember. 4 But I can recall having them and using them on occasion. 5 Q. Would all of the air samples you would have 6 taken at Rocky Flats have been recorded somewhere and 7 kept in writing? 8 A. Yes, sir. 9 Q. To your knowledge was there any kind of a 10 program to periodically destroy or purge old information 11 kept in writing like that for air sampling? 12 A. Not for airsampling, no. 13 Q. When you left out there, everything that 14 had been done in the way of air sampling, the written 15 results still existed? 16 A. Yes. 17 Q. If you had a threshold limit value of 5 18 regardless of what the unit of measure was to deal with, 19 and you went out and did a sampling regime and you found 20 the concentration to be 4.9, what kind of a comfort 21 index would that give you as an industrial hygienist 22 about the exposure limits? 23 A. Our general policy was to keep things as 24 low as possible. And if it approached the T.L.V. or 25 whatever you want to call it, we figured it was - 162 1 something should be done to correct it. 2 Q. And you felt that was prudent practice? 3 A. Yes, sir. 4 Q. Would that be the procedures that you were 5 following back as early as in the early 1960's when you 6 first came into the industrial hygiene program? 7 A. For as long as I can recall we were doing 8 it that way, yes. 9 Q. Wouldn't that even be before you actually 10 got to be an industrial hygienist while you were doing 11 health physics? 12 A. I think so. 13 MR. HOBSON: That's all I have in 14 the way of asbestos. If that 15 generated any more questions for 16 anybody -- I will pass the witness. 17 And that wipes out asbestos. 18 MR. ALMQUIST: No, it doesn't. 19 MR. HOBSON: Except for any 20 questions you-all might have. I beg 21 your pardon. 22 MR. ALMQUIST: I am going to save 23 mine until the end. I don't want to 24 go back and ask two or three piecemeal 25 questions because it's not going to 163 1 be that long. 2 MR. HOBSON: That's fine. Anyone 3 else on the subject? 4 5 RE-EXAMINATION BY MR. BLANKS: 6 Q. A few more, Mr. Hill. Did you have any 7 abrasive blasting work at Rocky Flats? 8 A. Yes. 9 Q. And what was - what was that done on and 10 why? 11 A. I am not sure what it was done on. I 12 remember we had some abrasive blasting - I guess I would 13 call them dry boxes. 14 MR. POFF: Excuse me. What 15 did you call those boxes? 16 THE WITNESS: Pardon? 17 MR. POFF: What did you 18 call those boxes? 19 THE WITNESS: Well, I called it a 20 dry box. A total enclosure where you 21 put the part in, sandblast it inside 22 the container and then took it out 23 again. 24 A. And I can recall fairly early they had 25 those I think in the tool and die shop where they might 164 1 clean up the product. There were a few scattered around 2 the plant site; the same type of thing for cleaning 3 parts and this sort of thing. 4 I think in later years I can recall two 5 which were done in the same room, but they were not 6 contained in a hood where they sandblasted - seems to me 7 like it was steel plates; or the paint shop had a 8 chamber where they could blast stuff before they painted 9 the metal. 10 (By Mr. Blanks) 11 Q. Then sand was the abrasive typically used? 12 A. Sand was used in some of them. Some of 13 them used blast shot, depending here again on what 14 D.O.E. told them to do. If it was part of the product, 15 they specified what was used on it. 16 Q. So, some of this blasting in an enclosure 17 was done on the product which was being manufactured 18 there. Did I understand you correctly? 19 A. Some of it was on the product. Some was on 20 say tools and dies that they were making in the tool and 21 die shop for use on the plant site. 22 Q. So, some on the products, some on the tools 23 that you used and then some in the paint shop. And was 24 the paint shop blasting done inside a blast booth or 25 room, or was it --- 165 1 A. (Interrupting) Room. 2 Q. So, it was a totally enclosed room? 3 A. Yes. 4 Q. With exhaust ventilation? 5 A. Yeah. 6 Q. What kind of protection did the workers 7 have from breathing the dust when they worked in that 8 room? 9 A. They had a breathing air hoodthat covered 10 their head and shoulders that had an outside supply of 11 air. 12 Q. A supplied-air hood? 13 A. Yes. 14 Q. Plus an exhaust ventilation of the room 15 itself I presume? 16 A. I don't know if it was an exhaust 17 ventilation or a recirc. that filtered out the dust and 18 returned the air. I think there may have beena little 19 of both. I don't recall for sure. 20 Q. But in any event, there was a mechanical 21 evacuation of the dusty air from the room and a 22 replacement -- 23 A. (Interrupting) As I recall it had a grated 24 floor, and the air moved down into the floor. And it 25 carried everything down and then out. It wasn't an 166 1 updraft hood or a backdraft, but everything went down 2 and out. 3 Q. Now, was there any blasting done at your 4 facility that wasn't done inside an enclosure? 5 A. There was one - one operation for a while 6 in the later years, but I can't tell you when, where 7 they blasted steel plates outside. 8 Q. So, that was done out of doors? 9 A. Yes. 10 Q. And what kind of respiratory protection did 11 you have the blasters wear? 12 A. They had a breathing air compressor and a 13 hood. 14 Q. So, again, they hada supplied-air hood? 15 A. Right. 16 Q. And they were using sand to blast the steel 17 plate I assume? 18 A. Yes, sir. 19 Q. And this sandblasting was going on when you 20 started your work there back in the '50's I assume? 21 A. I think some of the enclosed - a couple of 22 those operations may have been. When they started, I 23 don't know. 24 Q. Okay. 25 A. The two that I recall in the paint shop and 167 1 the plates I think started much later, probably in the 2 late '70's. 3 Q. Did you do any air sampling for silica dust 4 at Rocky Flats at any time? 5 A. I don't recall that we did. 6 Q. How frequently would the blasting out of 7 doors take place if you can estimate? 8 A. It was fairly continuous for a period of 9 time. And I won't say how long because I don't 10 remember. 11 Q. By the time - or early on in your 12 industrial hygiene years you certainly were made aware 13 of the disease of silicosis, weren't you? 14 A. I was familiar with it. When, I don't 15 know. 16 Q. Plus you understood the need to protect the 17 people doing the blasting with air-supplied hoods -- 18 A. (Interrupting) Yes. 19 Q. --- to keep them frombreathing the silica 20 dust? 21 A. Yeah. 22 Q. Do you remembergetting any kind of 23 Material Safety Data Sheet or toxicology sheet or the 24 like from Midland or anywhere else, from the Biomedical 25 Research Lab, for instance, concerning silica health 168 1 hazards? 2 A. I don't recall specifically anything, no. 3 Q. Was it the case, though, that you didn't 4 need to have such a thing to know that silicosis was a 5 hazard to protect the men from? 6 A. We had the information. Where it came 7 from, I can't tell you. 8 Q. At no time did you permit men to blast 9 using just a hood with a wire screen and no air supply, 10 did you? 11 A. Not that I recall we ever did. 12 Q. Do you recall ever seeing any such of a 13 hood even out there at the facility? 14 A. No. 15 Q. Would you have considered that appropriate 16 protection for a man blasting either out of doors or in 17 one of those enclosed blast booths? 18 A. No, I don't think so. 19 Q. Was it also the case that the medical 20 monitoring looked - including the chest X rays looking 21 for lung diseases, was done as to the painters who would 22 be doing the sandblasting? 23 A. It included everybody on the plant site at 24 least in later years. And I don't remember when it 25 started. But everybody was subject to periodic 169 1 physicals. 2 Q. Including the chest X rays? 3 A. I think -- Yes. That would depend again on 4 your --5 Q. (Interrupting) Job? 6 A. --- occupational classification, yeah. 7 Q. So, if your job was one where you could 8 have dust exposure in the course of your job, then your 9 exam would include a chest X ray that would be read by a 10 qualified radiologist to look for -- 11 A. (Interrupting) Well, I don't know how 12 medical did it; but it would be involved, yes. 13 Q. And was it also the case that you - like 14 with the beryllium and the plutonium and the other toxic 15 materials that you were working with at this Dow 16 installation, that you warned the sandblasters about the 17 dangers of breathing the silica dust? 18 MR. ALMQUIST: I want to make 19 it clear that if he's talking about 20 the later years, it would have been 21 Rockwell when the sandblasting 22 operations were going on and not 23 during the Dow period of time. 24 (By Mr. Blanks) 25 Q. Did you lose the question in there? 170 1 A. Yes. 2 Q. Well, you told us it was the policy there 3 and certainly the proper practice and good practice to 4 inform - fully inform the workers about the health 5 hazards known and suspected of the toxic materials that 6 they were working with and that you were trying to 7 protect them from. Would that have included silica? 8 A. Yes, sir. 9 Q. Do you remember if the peopleusing 10 air-supplied hoods to sandblast also had to wear a 11 mechanical filter respirator under the hood? 12 A. As I recall they didn't. 13 Q. Do you rememberever considering any 14 alternative abrasives to use in place of sand? 15 A. I think at times they may have considered 16 like steel shot or glass beads or something like that. 17 But for the most part, it was just silica sand. 18 Q. Did you have any kind of tumblers 19 tumbling devices in the foundry dealing with the 20 castings? 21 A. I don't recall any. 22 Q. Was there any blasting done in the foundry 23 to clean the castings? 24 A. No. 25 Q. Or to clean the molds? 171 1 A. I don't think so. 2 Q. What kind of material did they use for the 3 molds? Did they use sand for the molds, or were they 4 metal or ... 5 A. Graphite. 6 Q. Graphite molds. And the only - the only 7 material that was cast in the foundry was the beryllium? 8 A. In later years. In earlier years it was a 9 depleted uranium casting facility. 10 Q. Depleted uranium castings? 11 A. Yeah. 12 Q. You just melt it down into a liquid and 13 cast it? Was that the way it worked? 14 A. Yes, sir. 15 Q. Did you ever in any of your work life do 16 any work in or around a steel foundry or a brass 17 foundry? 18 A. No. 19 Q. And didn't have occasion to visit any while 20 you were up in Midland -- 21 A. (Interrupting) No. 22 Q. --- with the industrial hygiene people? 23 A. No, not that I recall. 24 MR. BLANKS: I think that's all. 25 I pass the witness again to the sand 172 1 people. Would you like to take a 2 break or carry on, sir? 3 THE WITNESS: Yeah, I could use a 4 break. 5 6 (A BRIEF RECESS WAS TAKEN.) 7 8 MR. HOBSON: Are you-all ready to 9 start again? Before we begin on the 10 next part, I want to attach as Exhibit 11 No. 1 to the deposition the Notice for 12 the deposition today. 13 14 (EXHIBIT NO. 1 WAS MARKED FOR 15 IDENTIFICATION. SAME WILL BE FOUND AT THE 16 CONCLUSION OF THE DEPOSITION.) 17 18 RE-EXAMINATION BY MR. HOBSON: 19 Q. Mr. Hill, did you ever serve in the 20 military? 21 A. Yes. 22 Q. What branch, sir? 23 A. Navy. 24 Q. Were you -- What was your job in the Navy? 25 A. Radioman. 173 1 Q. That had nothing to do with health and 2 safety? 3 A. No. 4 Q. May I ask, sir, your date of birth. 5 A. April 26, 1925. 6 Q. Thank you. You told us earlier that some 7 of the work that you did at Rocky Flats while you were a 8 Dow employee involved solvents. 9 A. Yes. 10 Q. And I think that you told me one of the 11 early problems or at least early work activities that 12 you addressed after you became the plant industrial 13 hygienist involved solvents. 14 A. Yes, sir. 15 Q. Did any of those solvents involve solvents 16 that were either benzene or solvents that contained 17 benzene? 18 A. No. 19 Q. They were all chlorinated solvents? 20 A. Chlorinated or the freons. 21 Q. As part of your work and training that's 22 led up to you becoming an industrial hygienist, did you 23 learn about benzene and its health hazards? 24 A. I don't recall that the term ever came up 25 out there. 174 1 Q. Let me ask you: I take it that from time to 2 time you would visit with the physicians, the various 3 physicians that were at the Rocky Flats location over 4 the years? 5 A. Yeah. 6 Q. Do you recognize the Journal of the 7 American Medical Association? 8 A. Yes. 9 Q. I have got an editorial, which has been 10 marked in a previous deposition as Plaintiff's Exhibit 11 441125JAMA. And this is an editorial - it's one page, 12 Mr. Hill, from the Journal of the American Medical 13 Association, November 25, 1944, on environmental cancer. 14 And let me just show that to you. (Tendering) 15 A. (Reviewing) 16 Q. I realize that you weren't in the field in 17 1944, at least not this field. You probably were in 18 another field at that time, maybe the field of battle; 19 but do you ever recall learning about the environmental 20 carcinogens that are addressed in this 1944 JAMA 21 editorial from either the physicians that you worked 22 with, from reference manuals, from reference journals 23 that you found at Rocky Flats while you were a Dow 24 employee or otherwise? 25 A. What was the question on this? 175 1 Q. Very clever. Put off the answer so long we 2 have all forgotten the question. The question is, 3 Mr. Hill, this article on environmental cancer from the 4 1944 Journal of the American Medical Association relates 5 several known and suspected carcinogens. And what I am 6 wondering is: Did you ever learn this information from 7 any source, either the medical doctors, from your 8 resources at - there at Dow, Rocky Flats or otherwise 9 the contents of this 1944 editorial on carcinogens? 10 A. You mean the editorial itself? 11 Q. No, sir, the contents about the chemicals 12 that are listed there as ---13 A. (Interrupting) I am -- 14 MR. ALMQUIST: (Interrupting) 15 Before you answer it, let me just make 16 an objection to the form of the 17 question. And that is that it's 18 it's a question that I think has 19 multiple parts in terms of asking 20 about different substances and lumping 21 them all together in a single 22 question. I think that the form of 23 the question should address the 24 individual substances that are 25 referenced in that rather than 176 1 lumping them all together into a 2 single question. 3 MR. HOBSON: I will be happy to 4 do that. Thank you, sir. 5 (By Mr. Hobson) 6 Q. Mr. Hill, in reviewing now the November 25, 7 1944, Journal of the American Medical Association's 8 editorial, do you recall learning from any source, 9 whether it be the physicians at Dow, whether it be the 10 reference books that you had in the library or 11 otherwise - and I'm talking up until 1975 when Dow was 12 no longer at Rocky Flats - that arsenic was a 13 carcinogen? 14 A. I don't think I was aware of that, no. 15 Q. Were you ever aware that chromates caused 16 cancer in humans or was suspected of causing cancer? 17 A. No. 18 Q. Were you ever aware that nickel carbonyl 19 caused cancer? 20 A. I don't believe so. 21 Q. Were you aware that radium could cause 22 cancer? 23 A. Yes. 24 Q. Were you ever aware that mesothorium could 25 could cancer? 177 1 A. Yes. 2 Q. For the benefit of all of us, tell us what 3 you understand mesothorium to be. 4 A. I think Mesothorium is another name for one 5 of the BK chains of uranium, but I can't tell you what 6 that other name is. 7 Q. Were you ever aware before 1975 that 8 asbestos was known or suspected to cause cancer? 9 A. I was aware. I can't tell you when it was. 10 Q. Were you ever aware that crude and 11 processed mineral oils were capable of causing cancer? 12 A. I think I heard that somewhere. But when 13 and where, I don't know. 14 Q. That would be before 1975 you think? 15 A. It could have been, but I really don't 16 know. 17 Q. Were you ever aware that aromatic amino 18 compounds such as aniline, naphthylamine and benzidine 19 could cause human cancer? 20 A. Somewhere along the line, yes; but when, I 21 don't know. 22 Q. Were you ever aware that benzene could 23 cause cancer? 24 A. I don't think so. 25 Q. And that would be up to 1975 or throughout 178 1 your professional career? 2 A. Up through 1975 anyway. 3 Q. Did you ever have occasion to investigate 4 the use of solvents? Did you ever have the opportunity 5 or occasion while you were at Rocky Flats as an employee 6 of Dow to investigate whether or not there was any 7 benzene in any of the solvents used at the facility? 8 A. I don't think we ever did. I don't think 9 the subject ever came up that I recall. 10 Q. Would you be aware that in the 1950's and 11 '60's that there were biological monitoring programs 12 that were recommended for workers who had regular 13 exposure to benzene? 14 A. No. 15 Q. Are you familiar with a termcalled 16 polynuclear aromatic hydrocarbons? 17 A. Vaguely. 18 Q. And did your work at theDow Rocky 19 Mountain - or Rocky Flats facility ever involve any of 20 the P.A.H.'s or polynuclear aromatic hydrocarbons? 21 A. In later years I -- You are talking about 22 polychlorinated biphenyls, things like that? 23 Q. Well, sir, I was thinking more in terms of 24 benzoalphapyrene, anthracene. 25 A. None of those have come up out there, no. 179 1 Q. But you had some experience with PCB's? 2 A. We had PCB's in transformers. It was 3 contained. We very seldom ran into it. 4 Q. Did you ever have any products or uses of 5 materials that were like pitches or tars, that sort of 6 thing, at Rocky Flats that you recall? 7 A. No. 8 Q. Would you be aware of any uses of high 9 boiling aromatic oils? 10 A. I can't think of any just offhand. 11 Q. That's not a material that you have come 12 across in your professional career I take it? 13 A. No. 14 Q. Are you familiar with the term 15 nitrosamines? 16 A. Vaguely. 17 Q. Did any of your work at the Rocky Flats 18 facility deal with nitrosamines? 19 A. None that I recall. 20 MR. HOBSON: I think that's all I 21 have, Mr. Hill. I appreciate your 22 patience with me, sir. 23 24 EXAMINATION BY MR. ALMQUIST: 25 Q. Mr. Hill, I have just a few questions for 180 1 you I think to kind of clear up some of the items that 2 we have talked about earlier today. And let's go back 3 to the Rocky Flats facility where you worked. We have 4 had bits and pieces of information about it, but can you 5 give us kind of an overview of exactly what was involved 6 in this plant; what its purpose was and what you did out 7 there. 8 A. Yeah, the primary purpose of the plant, 9 which was owned by A.E.C. or D.O.E., was to manufacture 10 triggers for atomic bombs for the Department of Defense 11 as part of the defense posture of the country. And this 12 could include purification of plutonium, uranium 13 chemically, recovery of chips and this sort of thing 14 chemically; foundry operations where they recast the 15 radioactive materials, machining the materials, shipping 16 them out. 17 Q. And Mr. Hobson adverted to this earlier, 18 but much of what went on out there, was that - that was 19 considered to be top secret-type work? 20 A. Yes. 21 Q. Under the close control of the government? 22 A. Right. 23 Q. Now, to your knowledge did Dow operate any 24 other facilities like this anywhere else in the country? 25 A. Not to my knowledge. 181 1 Q. In the article that we spent quite a bit of 2 time on this morning, the respirator-fitting program 3 article, you start talking about using half-mask 4 respirators for protection from toxic particulates. In 5 terms of this plant, what were you talking about when 6 you were talking about toxic particulates? 7 A. Primarily plutonium. 8 Q. Back when you were addressing these issues 9 with respect to plutonium, can you tell us what the 10 T.L.V. was for plutonium? 11 A. The number that comes to mind is 9 12 disintegrations per minute per cubic meter of air. 13 Q. And can you help us understand what 9 14 disintegrations per minute might mean? 15 A. The number again that comes to mind is a 16 microgram of plutonium disintegrates at the rate of 17 150,000 atoms per minute. So, 9 disintegrations per 18 minute would be 9 over 150,000 times one millionth of a 19 gram, whatever that may be. It's a pretty small piece 20 of plutonium. 21 Q. And what T.L.V. were you trying to meet 22 when you designed this respiratory fitting program? 23 A. Well, I don't understand what "T.L.V." you 24 mean. 25 Q. What level of exposure were you trying to 182 1 satisfy when it came to your respirator fitting program? 2 MR. HOBSON: I'm going to object 3 to the form of the question. It 4 assumes facts not in evidence. 5 A. I guess I still don't understand the 6 question. 7 (By Mr. Almquist) 8 Q. Well, in designing this program, what 9 substance was it that you were trying to protect the 10 worker from? 11 A. Plutonium was the - was the main criteria 12 we were looking at. 13 Q. Do you recall what the T.L.V. was for 14 beryllium? 15 A. When I was out there it was two micrograms 16 per cubic meter of air. 17 Q. And I believe you told us a little bit 18 earlier, but what was the purpose of going with the 19 high-efficiency filter in this program in the use of 20 respirators? 21 A. The main idea I think and the primary one 22 was to prevent any other type of respirator getting into 23 the plutonium area. We wanted only respiratory 24 protection that we could use for plutonium. 25 Q. And while you were operating this facility 183 1 and working out there, to whom were your main reporting 2 duties directed? 3 A. Mine personally or the department? 4 Q. The operators - as the operator of the 5 facility. 6 A. Everything from us went up to the plant 7 manager and then to D.O.E. was my understanding. 8 Q. And while Dow was working as the operator 9 of this facility, were there any comments, suggestions 10 or complaints by the D.O.E. concerning asbestos or any 11 asbestos-containing products? 12 A. I don't recall it ever coming up. 13 MR. HOBSON: I object to that as 14 hearsay. 15 MR. ALMQUIST: I believe that's 16 all the questions that I have. 17 18 RE-EXAMINATION BY MR. HOBSON: 19 Q. Mr. Hill, the respirator fit testing 20 program that you went through that you reported on in 21 your 1966 article, that same procedure would be used for 22 respirators for protection against any toxic dust, would 23 they not? 24 A. I suppose depending on the circumstances it 25 would be, yes. 184 1 Q. But if someone were interested in 2 evaluating respirator fit testing and they referred to 3 the American National Standards Institute's respiratory 4 protection guides, these very programs are set out for 5 respirator protection - respiratory protection programs 6 in general, are they not? 7 A. I don't know. I can't remember what the 8 ANSI standard said now or what was even in them. 9 Q. The procedure that you used with the 10 irritant smoke to check the respirator fit test, 11 certainly that irritant smoke was not plutonium? 12 A. No. 13 Q. It was in essence a substitute for some 14 material that you could use that the worker could 15 distinguish when his respirator leaked? 16 A. Yes. 17 Q. And the factthat the respirator leaked 18 if it leaked and there was some other toxic dust in the 19 air, it would leak that toxic dust just like it would 20 leak plutonium or any othertoxic dust? 21 A. Yes. 22 MR. HOBSON: That's all I have. 23 Thank you, sir. Anyone else have 24 any questions for Mr. Hill before we 25 finish? I appreciate your patience. 185 1 MR. ALMQUIST: That will conclude 2 the deposition. 3 4 (THE DEPOSITION WAS CONCLUDED.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 186 1 THE STATE OF: 2 COUNTY OF: 3 4 I, JOHN E. HILL, hereby certify that I 5 have read the foregoing transcript of my testimony given 6 in the foregoing numbered and styled case, and that same 7 is true and correct to the best of my knowledge and 8 belief. 9 I further certify that any and all 10 corrections have been made on a separate page and 11 initialed by me. 12 13 Thisday of, 1992 14 15 16 JOHN E. HILL 17 18 SWORN TO AND SUBSCRIBED BEFORE ME this 19 day of, 1992. 20 21 NOTARY PUBLIC 22 23 24 25 187 1 THE STATE OF TEXAS: 2 COUNTY OF JEFFERSON: 3 4 I, RICK SMITH, a Certified Shorthand 5 Reporter for the State of Texas, do hereby certify that 6 on September 24, 1992, I reported the deposition of John 7 E. Hill, during which deposition JOSEPH C. BLANKS, 8 attorney for PLAINTIFFS, requested that the following be 9 certified: 10 11 Page 111, Lines 17-19: 12 Q. "So, I was asking you, sir, what topics 13 they had talked with you about. And 14 Mr. Almquist - as you've heard him 15 speak ---" 16 17 18 19 WITNESS MY HAND AND SEAL OF OFFICE this 20 day of, 1992 21 22 23 RICK SMITH, CSR 24 25 188 1 THE STATE OF TEXAS: 2 COUNTY OF JEFFERSON: 3 4 I, RICK SMITH, a Certified Shorthand 5 Reporter for the State of Texas, do hereby certify that 6 on September 24, 1992, I reported the deposition of John 7 E. Hill, during which deposition JOSEPH C. BLANKS, 8 attorney for PLAINTIFFS, requested that the following be 9 certified: 10 11 Page 112, Lines 9-12: 12 Q. "And how many times have you visited 13 with them about your testimony, do you 14 know? 15 A. Twice. 16 Q. And how long - for how long a period?" 17 18 19 20 WITNESS MY HAND AND SEAL OF OFFICE this 21 day of, 1992 22 23 24 RICK SMITH, CSR 25 189 1 STATE OF: 2 COUNTY OF: 3 4 I, RICK SMITH, a Certified Shorthand 5 Reporter for the State of Texas, hereby certify pursuant 6 to the Texas Rules of Civil Procedure and/or agreement 7 of the parties present to the following: 8 That this deposition transcript is a true 9 record of the testimony given by JOHN E. HILL, the 10 Witness named herein, on September 24, 1992, after said 11 witness was duly sworn by me. 12 SWORN TO AND SUBCRIBED by me in Beaumont, 13 Texas, on this theday of 14 , 1992. 15 16 17 18 RICK SMITH, CSR 19 Certificate No. 2644 20 Expiration Date of Current 21 Certification: 12/31/93 22 Charlotte Smith Reporting, Inc. 23 235 Orleans, Kyle Building 24 Beaumont, Texas 77701 25 (409) 839-4407 NO. B-126,986 RUSSELL H. ALLEN, ET AL. IN THE DISTRICT COURT OF vs. JEFFERSON COUNTY, TEXAS AMERICAN PETROFINA, INC., ET AL. 60TH JUDICIAL DISTRICT INSTANT ACCESS TRANSCRIPTIONID VIDEOTAPED DEPOSITION OF: HAROLD ROBERT HOYLE FEBRUARY 18, 1991 VOLUME I OF III NO. A-134,614 FRENCH HICKS, ET UX IN THE DISTRICT COURT OF vs. JEFFERSON COUNTY, T E X A S BETHLEHEM STEEL CORPORATION, ET AL. 58TH JUDICIAL DISTRICT NO. E-t37,587 DELLA BAKER, ET AL. vs. CELOTEX CORPORATION, ET AL. IN THE DISTRICT COURT OF JEFFERSON COUNTY, TEXAS 172ND JUDICIAL DISTRICT JOSEPH A. CLEBERT GLORIA GOMEZ CLEBERT vs. SUIT NUMBER 38,744 DIV."B" 18TH JUDICIAL DISTRICT PARISH OF IBERVILLE MCCARTY CORPORATION, ET AL. STATE OF LOUISIANA LORRAINE PEGGY WILLIAMS SUIT NUMBER 39,404 DIV "D" 18TH JUDICIAL DISTRICT vs. PARISH OF IBERVILLE MCCARTY CORPORATION, ET AL. STATE OF LOUISIANA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ALMEDA DONALD J. SANDERS AND WINNIE SANDERS, Plaintiffs, vs. CASE NO. 590826-0 FIBREBOARD CORP., ET AL., Defendants. WINNIE SANDERS, Plaintiff, vs. PG&E, ET AL., Defendants. CASE NO. 621950-3 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ALMEDA BARBARA WHITFIELD, ET AL., Plaintiffs, vs. CASE NO. 670704-4 FIBREBOARD CORP., ET AL., Defendants. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO SYCBERT S. FAIRCHILD, ET AL. Plaintiff, vs. CASE NO. 925508 ABEX CORPORATION, ET AL., Defendants. 2 INDEX 3 4 VIDEO DEPOSITION OF HAROLD ROBERT HOYLE 5 FEBRUARY 18 - 20, 1991 6 7 Direct Examination-Ms. Clark 18 8 Examination-Mr. Covert 157 Examination-Mr. Hobson 9 Examination-Ms. Abrams Examination-Mr. Hood 518 10 Re-Examination-Mr. Hobson 194 380 558 11 12 EXHIBIT INDEX 13 Exhibit No. 14 Description Marked 15 Hoyle 1 "Results of Range Finding Skin Contact Tests on Asbestos 7M," 16 17 Hoyle 2 18 19 20 Hoyle 3 by K. J. Olson, 4/24/58, ST0000391-4001, 13 "Results of Range Finding Toxicological Tests on a Floor Tile Formulation Containing an Expoxy Resin," by Ken Olson, 4/18/58, ST0000549-564 13 "Evaluation of Chemical Exposures 21 22 23 Hoyle 4 24 25 Received by R. R. Spencer of Coatings Technical Service, 433 Building," by J. Peterson, 1/29/58 ST006828-6843 13 10/26/64 letter ro R. C. Middleton from H. R. Hoyle with attached Industrial Hygiene Sample Record, 10/7/64, taken at Ludington, ST006762-6764 56 1 Hoyle 5 3/24/69 "A Survey and Evaluation of Pipe Coverers' Exposures To 2 Dusts From Asbestos Containing Insulation Materials 3 Encountered During Routine Pipe Covering Operations Within 4 the Midland Location of the Dow Chemical Company" by R. A. 5 DeGesero, ST006806-6819 6 Hoyle 6 10/23/69,, "Survey and Evaluation of Pipe Coverers' Exposure to 7 Dusts Containing Asbestos or Fiberglass, Ludington Plant," 8 by R. A. DeGesero, 9 Hoyle 7 10 11 ST0000647-659. 7/21/65,"Exposure to Fine Dusts Encountered By Workers Cutting Various Types of Pipe Covering Material," by E. J. Schneider, ST0000568-586 12 Hoyle 8 Three letters: 10/7/68 to 13 H. R. Hoyle from R. C. Middleton; 10/30/68 to Richard F. Falk from 14 H. R. Hoyle; 10/31/68 to R. C. Middleton from H. R. Hoyle, 15 ST006757-6761 16 Hoyle 9 2/28/72 letter to H. R. Hoyle from R. D. Black Re: Insulation, 17 ST0000890; 3/9/72 letterfrom H. R. Hoyle to R. D. Black Re: 18 Insulation, ST0000889 19 Hoyle 10 "Air Sampling Instruments For Evaluation of Atmospheric 20 Contaminants," ACGIH, "Inertial Collectors," by 21 Howard L. Kusnetz 22 Hoyle 11 "TLVS, Threshold Limit Values for Chemical Substances in 23 Workroom Air Adopted by ACGIH for 1973" 24 25 Hoyle 12 (Withdrawn) 2 66 66 97 97 97 262 262 313 3 1 Hoyle 13 8/19/69 "Minutes of Special Meeting Between UMWA-Management 2 Bargaining Committees Concerning Pipe Coverers Working With 3 Asbestos" ST0000366-389 348 4 Hoyle 14 10/21/71 "A Statistical Evaluation of Respiratory System Indicators 5 Among Pipe Coverers," M. G. Ott, 6 Hoyle 15 7 ST00065888-6609 348 "Results of Air Analysis Made While Mixing Asbestos - Vinyl Floor Tile, S. R. Johann, 5/6/55 8 ST006844-6648 481 9 Hoyle 16 "Industrial Hygiene Digest," 1937-8. "The Industrial Cancer 10 of Workers In Asbestos," M. Nordmann 568 Hoyle 17 "Dust Producing Operations in the 12 Production of Petroleum Products and Associated Activities," 13 Roy S. Bonsib, July 1937, Pg. 82 568 14 Hoyle 18 "Industrial Hygiene Digest," 1939, "Asbestosis," E. W. Bender 15 Hoyle 19 16 "Foundation Facts," May, 1945, photo of The Board of Trustees of Industrial Hygiene Foundation 17 Spring Meeting 568 568 18 Hoyle 20 19 Photograph of Roy S. Bonsib 568 20 Hoyle 21 "1947 M.A.C. Values," Vol. 7, No. 8, August 1947,"Industrial 21 Hygiene Newsletter1 568 22 Hoyle 22 American Industrial Hygiene Association "Hygienic Guide 23 Series, Asbestos" 568 24 Hoyle 23 "Industrial Carcinogens," R. E. Eckardt, 1959, "Modern 25 Monographs in Industrial Medicine" 568 4 1 Hoyle 24 "Primary Malignant Mesothelioma of the Pleura," H. B. Eisenstadt 2 and Wilson, 1960 568 3 Deft. Armstg. 1 "The Origin and Basis of 4 Threshold Limit Values," Jeffrey M. Paull, 5 Amer. Jrl. Of Ind. Med. 1984 517 6 Deft 7 8 9 10 Armstg. 2 "A Health Survey of Pipe Covering Operations In Constructing Naval Vessels," Fleischer, Viles, Gade and Drinker, irl. Of Ind. Hyg. and Tox., Jan, 1945 517 11 Deft. Armstg. Dow's Responses to Requests 12 to Admit, 7/7/90, response to Question No. 4; Dow's Response 13 to Interrogatories, 7/3/90, responses to Question Nos. 8, 14 11C and 14. 568 15 16 17 18 19 20 21 22 23 24 25 5 I VIDEOTAPED DEPOSITION OF HAROLD ROBERT HOYLE, called as a witness by Defendant Dow 3 Chemical Company, taken before Emanuel A. 4 Fontana, Jr., Certified Shorthand Reporter in and for the State of Texas, at the DeLand Hilton, 350 6 International Speedway Boulevard, DeLand, 7 Florida, on the 18th day of February, 1991, 8 beginning at 9:38 a.m., pursuant to Notice, the Texas, Louisiana and California Rules of Civil 10 Procedure, and the following stipulation and II waiver of counsel: 12 13 14 15 16 17 Mr. Herschel L. Hobson, of the Law 18 Offices of Herschel L. Hobson, 2190 Harrison, 19 Beaumont, Texas, 77701,, appearing for the Allen 20 Plaintiffs. 21 22 Mr. George R. Covert, of the law firm of 23 Messrs. Covert & Braud, P. 0. Box 82080, Baton 24 Rouge, Louisiana, 70844-2080, appearing for the 25 Clebert and Williams Plaintiffs. 6 1 Ms. Denise Abrams, of the law firm of Messrs. Kazan, McClain, Edises & Simon, 171 3 Twelfth Street, Third Floor, Oakland, California, 4 94607, appearing for the Sanders Plaintiffs. 5 6 Ms. Sandra F. Clark, of the law firm of 7 Messrs. Mehaffy & Weber, 2615 Calder Avenue, 8 Beaumont, Texas, 77704, appearing for Defendant 9 Dow Chemical Company. 10 11 Mr. Duncan S. Stuart, In-House Counsel 12 for The Dow Chemical Company, 2030 Willard H. Dow 13 Center, Midland, Michigan, 48674, appearing for 14 Defendant The Dow Chemical Company. 15 16 Mr. Robert H. Hood, of the Hood Law 17 Firm, 172 Meeting Street, Charleston, South 18 Carolina, 29401, appearing for the CCR 19 Defendants. 20 21 Mr. J. Thad Heartfield, of the law firm 22 of Messrs. Benckensteinl Oxford & Johnson, Third 23 Floor, First Interstate Bank Building, P. 0. 24 Drawer 150, Beaumont, Texas, 77704, appearing for 25 Defendant M. H. Detrick Company. 7 1 Ms. Gail C. Jenkins, of the law firm of Messrs. Benckenstein, Norvell, Bernsen & Nathan, 3 2615 Calder, Sixth Floor, Beaumont, Texas, 77702, 4 appearing for Defendants Mobil Oil Corporation and Fina Oil & Chemical Company. 6 7 Mr. William E. Schweinle, Jr., of the 8 law firm of Messrs. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 2400 NCNB Center, 700 10 Louisiana, Houston, Texas, 77002, appearing for 11 Defendants American Petroleum Institute, Texas 12 Chemical Council, Chemical Manufacturers 13 Association and National Petroleum Refiners 14 Association. 15 16 Mr. John J. Hainkell III, of the law 17 firm of Messrs. Lemle & Kelleher, 21st Floor, 18 Pan-American Life Center, 601 Poydras Street. New 19 Orleans, Louisiana, 70130-6097, appearing for 20 Owens-Corning Fiberglas Corporation. 21 22 Mr. J. Wiley George, of the law firm of 23 Messrs. Strasburger & Price, 4300 NCNB Plaza, 901 24 Main Street, Dallas, Texas, 75202, appearing for 25 Defendant The Travelers Insurance Company. 2 Ms. Kathy Kubach, of the law firm of 3 Messrs. Dunn, Kacal, Adams, Pappas & Law, 2929 4 Allen Parkway, Suite 2600, Houston" Texas, 77019, appearing for Defendants DuPont Corporation and 6 PPG Industries, Inc. 7 8 Mr. Kristopher E. Fernandez, of the law firm of Messrs. Blackwell & Walker, 777 South 10 Harbour Island Boulevard, Suite 780, Tampa, 11 Florida, 33602-5707, appearing for Defendant 12 Owens-Corning Fiberglas Corporation. 13 14 Ms. Katherine Armstrong, of the law firm 15 of Messrs. Shadden, Arps, Slate, Meagher & Flom, 16 919 Third Avenue, New York, New York, 10022, 17 appearing for Defendant Metropolitan Life 18 Insurance Company. 19 20 Mr. Thomas W. Duesler, of the law firm 21 of Messrs. Adams & Duesler, 550 Fannin, Suite 22 830, P. 0. Box 7505, Beaumont, Texas, 77726-7505, 23 appearing for Defendants Badger Engineering 24 Corporation and Charter Oil Corporation. 25 9 1 Mr. James H. Powers, of the law firm of Messrs. Roberts, Markel, Folger & Powers, 1010 3 Twenty-Four Greenway Plaza, Houston, Texas, 4 77046, appearing for Defendant Aber Company. 5 6 7 Mr. Gary A. Bezet, of the law firm of 8 Messrs. Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, Twenty-Second Floor, One 10 American Place, Baton Rouge, Louisiana, 70421, 11 appearing for Defendant Exxon Corporation. 12 13 14 Mr. David W. Ledyard, of the law firm of 15 Messrs. Strong, Pipkin, Nelson & Bissell, San 16 Jacinto Building, Beaumont, Texas, 77701-3255, 17 appearing for Defendants Exxon Corporation and 18 Chevron Corporation. 19 20 21 Ms. Ann L. Burkey, of the Law Offices of 22 William M. Koziol, Rt. 22 and Kemper Dr., Long 23 Grove, Illinois, 60049-0001, appearing for 24 Defendant John Crane, Inc. 25 10 I Mr. Christopher A. Conkling, USS-POSCO Industries, P. 0. Box 471, 900 Loveridge Road, 3 Pittsburg, California, 94565, appearing for 4 Defendants USX Corooration and USS-POSCO Industries. 6 7 8 Mr. Peter Boyd Wells, III, of the law firm of Messrs. Wells, Peyton, Beard, Greenberg, 10 Hunt & Crawford, 550 Fannin, 6th Floor, Beaumont, II Texas, 77001, appearing for Defendants 12 Bridgestone/Firestone and Bethlehem Steel. 13 14 15 Mr. D. Allan Jones, of the law firm of 16 Messrs. Orgain, Bell & Tucker, 470 Orleans 17 Street, Beaumont, Texas, 77701, appearing for 18 Defendants Atlantic Richfield Company, Quantam 19 Chemical Company, Temple-Inland Forest Products 20 Corporation and Gulf States Utilities Company. 21 2 3 4 5 I IT IS STIPULATED and agreed by and between counsel for the respective parties hereto 3 that the deposition of the witness named in the 4 caption hereto may be taken at this time and place before the officer named in the caption 6 hereto; that said deposition, or any part 7 thereof, when so taken, may be used on the trial 8 of this case with the same force and effect as if the witness were present in court and testifying 10 in person; II THAT the necessity for preserving 12 objections at the time of taking is waived, and 13 that any and all legal objections to this 14 deposition, or any part thereof, may be urged at 15 the time same is sought to be offered in evidence 16 on the trial of this cause; except, however, that 17 objections to the form of the question and/or 18 responsiveness of the answer must be made at the 19 time of taking, or else such objections are 20 waived; 21 THAT the original of this deposition 22 shall be presented to Ms. Clark, who shall in 23 turn submit it to the witness for his examination 24 and signing, and thereafter, shall return same to 25 the officer taking this deposition; 12 1 THAT if the signed original is not presented to Ms. Clark prior to the time of 3 trial, a copy may be used in lieu thereof. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 0 21 2 3 4 5 13 I (Whereupon, Hoyle Exhibit Nos. 1, 2 and 3 were marked for identification.) 3 4 THE VIDEOGRAPHER: The time is 9:38 a.m. 6 On the record. 7 8 HAROLD ROBERT HOYLE was called as a witness by Defendant Dow Chemical 10 Company and, being first duly sworn, testified as II follows: 12 13 MS. CLARK: I believe, at this 14 time, we're going to do appearances of counsel. 15 My name is Sandra Clark, and I'm here on behalf 16 of the Dow Chemical Company. 17 MR. STUART: My name is Duncan 18 Stuart. I am in-house counsel for the Dow 19 Chemical Company. 20 MR. HEARTFIELD: I'm Thad 21 Heartfield. I'm counsel for M. H. Detrick. 22 MS. JENKINS: I'm Gail Jenkins. 23 I'm counsel for Mobil oil Corporation and Fina 24 Oil and Chemical Company. 25 MR. SCHWEINLE: I am Bill 14 1 Schweinle. I'm counsel for the American Petroleum Institute, the Texas Chemical Council, 3 the Chemical Manufacturers Association, and the 4 National Petroleum and Refiners Association. 5 MR. HAINKEL: I'm John Hainkel, 6 counsel for Owens-Corning Fiberglas Corporation. 7 MR. HOOD: I'm Bobby Hood. I'm 8 counsel for CCR. 9 MS. KUBACH: I'm Kathy Kubach, 10 counsel for DuPont and PPG Industries. 11 MR. FERNANDEZ: I'm Kristopher 12 Fernandez and I'm with Owens-Corning Fiberglas, 13 on behalf of Owens-Corning. 14 MR. COVERT: I'm Gerry Covert in 15 the Louisiana cases, Clebert and Stewart. 16 MS. ABRAMS: Denise Abrams for 17 Plaintiffs, the Sanders, from California, in the 18 case of the Plaintiffs. 19 MS. ARMSTRONG: Kathy Armstrong for 20 Metropolitan Life Insurance Company. 21 MR. GEORGE: Wiley George for The 22 Travelers. 23 MR. HOBSON: Herschel Hobson, 24 representing the Plaintiffs in the Allen case. 25 MR. DUESLER: Tom Duesler, for 15 1 Badger Engineering and Charter Oil. 2 MR. POWERS: Jim Powers for the 3 Aber Company. 4 MR. BEZET: I'm Gary Bezet for Counsel Exxon in the Louisiana cases. 6 MR. LEDYARD: David Ledyard, 7 counsel for Exxon, Texaco, Chevron, and others in 8 the Allen case, and Exxon in the Louisiana cases . 10 MS. BURKEY: Ann Burkey for John 11 Crane, Inc. 12 MR. CONKLING: Chris Conkling for 13 USX Corporation and USS-POSCO Industries, in 14 connection with the Fairchild litigation in 15 California. 16 MR. WELLS: I'm Boyd Wells. I'm 17 representing Firestone in the Russell Allen case, 18 and Firestone and Bethlehem Steel in the French 19 Hicks case. 20 MR. JONES: I'm Allan Jones. I'm 21 here for a group of four Defendants in the Allen 22 case and for a group of -- a larger group of 23 Defendants in the Baker and Hicks cases. 24 MS. CLARK: Is that everybody? 25 THE VIDEOGRAPHER: Yes. 16 1 MS. CLARK: I believe, before we begin the deposition, that someone wanted to make 3 an objection on the record. 4 MS. ABRAMS: Denise Abrams for the Plaintiffs Sanders. I object to the use of this 6 witness in any capacity as an expert, and I also 7 object to his testifying regarding, either a implicitly or explicitly, any documents that have not been provided to counsel. 10 I understand that the witness reviewed a 11 number of documents in a Michigan case, many of 12 which are currently under seal, and to my 13 knowledge, remain under seal, and I would ask 14 that those documents be provided to counsel prior 15 to cross-examination, so that we can have an 16 opportunity to know what he is relying on for his 17 information. 18 MR. COVERT: 1, too, would like to 19 make an objection, Gerry Covert. I would enter a 20 general objection, at this time, to any documents 21 other than those relating to the Dow facility 22 file-. 23 MR. HAINKEL: John Hainkel for 24 Owens-Corning Fiberglas. I'm only here in the 25 Clebert case. 17 1 MR. HOBSON: Is this noticed in French Hicks? 3 MS. CLARK: Yes. Is it noticed in 4 French Hicks, did you say? MR. HOBSON: Yes. MS. CLARK: Yes. MR. HOBSON: Have you got it? MS. CLARK: Do I have the notice? MR. JONES: That lady in the corner 10 has a copy. 11 MS. CLARK: We can get a -- we'll 12 get a copy of it. I don't have it with me right 13 now, but we'll get it to you this morning. 14 MS. JENKINS: Sandra, I assume, for 15 the record, that all of us are only making 16 appearances in the case in which our clients are 17 parties and were properly noticed. We probably 18 didn't specify that when we were going around the 19 room, but I want to make that clear. 20 MS. KURACH: I want to make that 21 clear for the record, too. 22 MR. STUART: It's noted. 23 MS. CLARK: Are we ready? 24 THE VIDEOGRAPHER: Yes, ma'am. 25 18 DIRECT EXAMINATION QUESTIONS BY MS. CLARK: 3 4 Q. Mr. Hoyle, would you state your full name, please? 6 A. My name is Harold Robert Hoyle. 7 Q. Mr. Hoyle, my name is Sandra Clark, and 8 we're here today to take your deposition concerning your experience at Dow and your 10 experience as industrial hygienist. 11 Just as a way of introduction, would you 12 state your age, please, and tell us whether 13 you're married, and if you're married, how long 14 you were married, and that sort of thing? 15 A. Well, I'm seventy-nine years old. I am 16 married. My wife's name is Eleanor. We have two 17 children, one named John, and the other one named 18 Susan. 19 Q. I understand -- 20 A. I've been married for -- 21 Q. Go ahead. 22 A. -- not quite 50 years. We're going 23 celebrate it on the 28th of March. 24 Q. Okay. Thank you. 25 Are you currently employed? 19 1 2 3 4 5 A No. Q. All right. Are you retired? A. I'm retired. Q. And when did you retire? A. I retired at the -- my first day of 6 retirement was October lst., 1976. 7 Q. Were you ever employed by the Dow 8 Chemical Company? 9 A. I was. 10 Q. And when werethose years, please? 11 A. I was first employedby Dow in 1941, for 12 the summer. At the time, I was a schoolteacher. 13 I returned to Dow in 1942 for another summer 14 project, and I stayed on from that time on 15 Q. What position 16 A. -- until I retired. 17 Q. All right. What position did you hold 18 most of the time that you worked at Dow? 19 A. I was an industrial hygienist. 20 Q. Well, would you explain to the jury when 21 and how you became an industrial hygienist? 22 A. Yes. Before I became an industrial 23 hygienist, I was a safety engineer. And the 24 industrial hygiene activity at Dow was being 25 taken care of on a case-by-case basis by Dr. 20 I Edgar Adams, who was head of the Toxicology Laboratory. 3 In 1948, there carpe a time when they 4 needed someone to work at industrial hygiene full-time, and my background was that of a 6 chemist working in safety, and industrial hygiene 7 was a specialized part of safety in that it had 8 to do with the recoqnizinq and evaluating and controlling of health hazards in the work 10 environment. II Q. I was going to ask you that, basically 12 to explain to the jury what an industrial 13 hygienist is and what one does. 14 A. Well, as I've said, by definition, 15 was the science of recognizing, evaluating and 16 controlling health hazards in the work 17 environment,. And what we did was to go into th 18 workplace, observe@-- first find out what 19 chemicals and forms of energy were present in 20 that workplace, then study the various jobs in 21 terms of levels of exposure which might e 22 the-various chemicals and forms of energy 23 And then decisionmaking depended 24 threshold limit values. Early on, when I first 25 become an industrial hygienist, we called them 21 1 2 concentration- -i Q. All right. Well, I'll ask you about 3 that in just a minute, but - 4 A. M-h'm. 5 Q. -- what I did want to ask you, or just 6 point out that you became an industrial 7 hygienist, then, in 1948 or approximately 1948? 8 A. It was 1948, March, and I believe it was the 8th day of March. 10 Q. And then how long did you keep that 11 position with Dow? 12 A. Until I retired, approximately 35 years. 13 Q. What were the goals and objectives of 14 industrial hygiene at Dow? 15 A. I think I -- it wasn't 35 years as an 16 industrial hygienist, because there was a period 17 of time when I was a safety engineer. 18 Q. All right. 19 A. So it was from 1948 until 1976. The - 20 the arithmetic wouldn't come out right. 21 Q. Okay. Well, it might if I did it, but 22 anyway. 23 So from 1948 to 1976, you were an 24 industrial hygienist? 25 A. M-hlm. 22 1 Q. What were the goals or objectives the Industrial Hygiene Program at Dow? 3 A. Our purpose was to gather informa n 4 that would allow us to provide a safe, hea ful 5 work environment for Dow employees and furn h 6 information to Dow customers, so that they uld 7 use what they bought from us in a safe man 8 based on the data -- information we could furnish. 10 Q. All right. 11 A. And our other interest was in the public 12 in general, particularly concerning the 13 surrounding landscape around Dow operations, but 14 not -- but not limited to that. 15 Q. All right. How did the Industrial 16 Hygiene Program develop at Dow? You started to 17 tell us -- I believe, earlier you said that you 18 went to work with Dr. Adams; is that right? 19 A. Yes. 20 Q. And then how did it develop from there? 21 A. Well, I was a one-man Industrial Hygiene 22 Department for about six months, and then I was 23 joined by another man, Ed Schneider, and it 24 developed as the company grew, and as the 25 interest in controlling health hazards in the 23 1 work environment grew, generally. 2 Q. And where was your department located? 3 A. We were a part of the Biochemical 4 Research Laboratory. And the Biochemical Research Laboratory included several different 6 laboratories, of which one was toxicology. 7 When I first started, industrial hygiene 8 was not well separated from toxicology in the structure. Later on, it became separate. 10 Q. And this was -- what town was all this 11 located in? 12 A. I was -- I was in Midland, where - 13 which is the home of the Dow Chemical Company. 14 Q. Okay. In - 15 A. Midland, Michigan. 16 Q. In Midland, Michigan, not Midland, 17 Texas? 18 A. Not Midland, Texas. 19 Q. All right. So you fit into the program 20 as being the industrial hygienist; is that 21 correct? 22 A. I was the first full-time industrial 23 hygienist at Dow. 24 Q. What kind 0 did you have to 25 become an industrial St? 24 1 A. Well, at the time I became an industrial hygienist, and there was very little formal 3 training available in the United States, so my 4 training was that of a chemist. Many people doing industrial hygiene were engineers, although 6 there were quite a few chemists involved, and 7 quite a few biochemists. my training was that of 8 a chemist. 9 Q. All right. And you -- you had a college 10 degree in chemistry; is that correct? 11 A. Yes, I did. 12 Q. Where did you go to college? 13 A. Central Michigan University. 14 Q. All right. 15 A. And I had graduate training at the University of Michigan. 17 Q. All right. In chemistry? 18 A. No. In education. 19 Q. All right. That's right. 20 What about other training that you had, 21 other than training on the job? 22 A. Well, there were,, from time to time, 23 seminars and short courses, I guess you might 24 call them. And when they were available, I 25 availed myself of them, and 25 1 Q. Do you have 2 A. Go ahead. 3 Q. Do you have any estimates of how many of 4 those seminars and training courses that you might have attended in your 28 or 30 years as an 6 industrial hygienist? 7 A. Oh, at least a hundred, I think. Many B of them, I was a lecturer, but I usually stayed for the full length of the seminar and learned 10 quite a bit each time. 11 Q. Are you a member of any industrial 12 hygiene professional organizations? 13 I'm a member of the American -- AIHA, 14 n Industrial Hygiene Association, and als 15 dustrial Hygie 16 Q. What is the American Academy of 17 Industrial Hygiene? 18 A. Well, people who are certified in 19 industrial hygiene become members of the Academy. 20 Q. And what do you mean, "people who are 21 certified"? 22 A. Well, there's an American Board of 23 Industrial Hygiene which certifies people for the 24 practice of industrial hygiene. 25 Q. Are you board-certified in indus@ial 26 1 hygiene? 2 A . I am. 3 Q. And about how long have you been 4 board-certified in industrial hygiene? 5 A. As long, almost, as there has been a 6 certification available. I was grandfathered in. 7 Q. All right. When was that available? 8 A. The exact time, I guess, I can't tell you. It was sometime in the 150's. 10 Q. In the 150's -- so it's since the 11 150's - 12 A. I think so. 13 Q. -- you've been - 14 A. I don't remember exactly when. I can 15 look that up, I guess. 16 Q. No. That's all right. The jury is 17 probably going to hear of an organization called 18 the American College of Industrial Hygienists, or 19 the ACGIH? 20 A. I think that was American Conference of 21 Industrial Hygienists. 22 Q. Oh, thank you. 23 A. They were a group of industrial 24 hygienists who limited the membership to those 25 who were Government employees, and the only 1 exception to that I that know of is that they allowed some academics in who were technically 3 being paid outof tax money. 4 Q. All right. So you were not a member of -the ACGIH? 6 A. I was not allowed to be. I was not 7 eligible. 8 Q. But were members of the ACGIH members of  the other industrial hygiene group of which you 10 were a member? 11 A. They were members of AIHA, and many of 12 them were certified and, therefore, became 13 members. 14 Q. So you were -- you had associations and, 15 meetings with the ACGIH? 16 A. Oh, yes. 17 Q. Okay. Well, at Dow, how did the 18 Industrial Hygiene Department interrelate with 19 other departments that were concerned with health 20 and safety? 21 A. Well, we worked closely with the Medical 22 Department and the Safety Department, and we were 23 set up to offer assistance or help to line 24 management, who had the direct responsibility for 25 mai ntaining healthful irii safe working 28 1 environments within the company. 2 Q. Okay. When you say "line management," 3 what are you talking about? 4 A. Well, as opposed to staff functions. These were people who had direct control of the 6 department, somehow or other. 7 Q. All right. 8 A. And in my function, I was both line, as far as industrial hygiene is concerned, and 10 staff, as far as the rest of the company was 11 concerned. 12 Q. Okay. And so when you're talking about 13 line management, you may be talking about 14 supervisors or - 15 A. I'm talking about anything from the 16 foremen right on to the general manager. 17 Q. All right. How did you communicate 18 among the different departments at Dow? 19 A. Well, it was done in a number of 20 different ways. 21 We developed a datasheet, which was a 22 checklist type of thing which allowed us to give 23 information concerning the toxic properties 24 of a -- of a material, and also to relate the 25 necessary personal protection to four different 29 1 categories of operation. 2 Q. All right. Well, I'm going well - 3 we'll just go on to what I had the court reporter 4 previously mark Exhibit 1 to the Hoyle deposition. 6 I believe that this contains a 7 datasheet, so if -- let me hand you what's been 8 marked Exhibit 1 and see if you can -- if you recognize this document, and if you do, if you 10 can identify it? 11 A. This is a report of what was called a 12 range finding, or class one toxicological test, 13 and it covers a material identified as Asbestos 14 7m. 15 Q. Okay. Can you look in that report and 16 see if it contains a datasheet? 17 A. It does, and maybe I should say that, 18 routinely, whenever any material was investigated 19 in the toxicology laboratory, a datasheet was 20 prepared, and it became a part of that report. 21 Q. Can you tell the jury what -- what was 22 the-purpose of doing a datasheet on 7M cement? 23 what -- what was it being used for? 24 A. Well, this material was -- it was used 25 as a part of a formulation for floor tile, and 30 1 the investigator in the laboratory had some skin problems, and he picked out asbestos as the 3 Material that he sent over to have tested on the 4 skin, because of his own skin problems. 5 Q. Do you know whether this formulation for 6 floor -- floor tiles was ever manufactured by 7 Dow? 8 A. No. The floor tile formulations, and there was more than one of them, were being 10 investigated in a laboratory within the technical 11 service and development area in Dow. And the 12 purpose was to develop formulations using Dow 13 plastics that would be useful to the floor tile 14 industry, and this is a matter of developing uses 15 for new materials. 16 Q. All right. So what you were doing, or 17 what they were doing here, to the best of your 18 knowledge, was not manufacturing floor tiles with 19 asbestos in them, but they were using this in a 20 laboratory testing sort of function? 21 A. Yes. Dow never made floor tile. 22 Q. okay. 23 A. I'm sure of that. 24 Q. Well, I didn't want that to be 25 con fusing, because that was a little bit 31 1 confusing to me. 2 So this test was done on asbestos 3 because asbestos was used in this laboratory 4 setting to see if the floor tile formulation was going to work? 6 A. No. May I -- may I add -7 Q. Well, let me ask you another question: 8 Why was it used? 9 A. Well, why was it done? 10 Q. Yeah. 11 A. Well, the test on the asbestos itself 12 was done simply because the investigator, the man 13 in charge of the laboratory, had a skin problem. 14 Q. All right. 15 A. He didn't know what the skin problem 16 what caused it, and one of the things that was 17 done was to test this particular asbestos form 18 form on -- on rabbits. 19 Q. All right. And someone in the 20 Toxicology Department did that? 21 A. They did that, and as a matter of 22 routine, they made this datasheet. 23 Q. Okay. Now, would you explain to the 24 jury what the findings on the datasheet showed? 25 A. There's only one finding from the tox 32 1 investigation, and that is that it had no effect on the skin. 3 Q. Okay. And that - 4 A. And there are some other categories that were checked here, based on what was known about 6 asbestos. 7 Q. All right. And that's what I wanted to 8 ask you to explain. The -- the categories that were checked, other than the test on the skin, 10 came from what source? 11 A. Came from general knowledge concerning 12 asbestos, which was available in the literature 13 and just generally known. 14 Q. All right. And if you look at that 15 datasheet, what were the -- what areas were 16 checked? 17 A. Well, they checked eyes, and it was - 18 there was no unusual effect on the eye. 19 Q. 2 0 A. All right. The mesa ch-c--(-kmark here for--diist t 21 and mist, and it says tha-t-"Dustv or misty 22 atmospheres may cause serious systemic injury." 23 Q. All right. 24 A. And that's -- that's -- that's a 25 sta tement that appears frequently in reports, and 33 1 was put in here as a checklist. And the reason that it's checked where it's checked is because 3 it's known that asbestos could cause asbestosis. 4 All right. Now, was this datasheet devised for checking asbestos only? 6 A. Oh, no. No. In fact, there's a 7 sizeable number, thousands of these datasheets, 8 covering various materials that have been tested or are in use in the work environments within 10 Dow. 11 Q. So the checklist was a generic sort of checklist -- 13 A. That's right. 14 Q. -- that was -- that could be -- 15 A. It could -- could be used to -- to give 16 information concerning toxic properties and 17 precautions to line supervisors. 18 Q. All right. And then what other markings 19 did you have on that? 20 A. Well, there's a back side to the sheet, 21 which is marked -- what I've talked about so far 22 is the toxicology side of the sheet. 23 Q. Okay. 24 A. And it simply describes the -- the toxic 25 properties of the material as they were known to 34 1 us at the time. But on the other side of the sheet, we arbitrarily decided that operations 3 within Dow would fall within one of four 4 categories, which range all the way from no contact at all, which would be characterized by 6 remote operations. 7 Probably the classic example is what's 8 done in most nuclear plants. And we would go all the way from that, with two categories in 10 between, to a situation where there was no effort 11 made to control exposure. It's what I have 12 characterized, in a slang way, I suppose, as 13 "scoop, shovel and bucket chemistry.,' 14 Q. So those are the range 15 A. Was -- 16 Q. Those are the ranges? 17 A. That's the range, and there are two 18 categories in between, one for continuing -- for 19 continuous operations, and one for batch 20 operations. 21 Q. All right. And did you make any 22 markings related to this asbestos that was being 23 put on this datasheet in response to those 24 categories? 25 A. We did. 35 1 Q. All right. And what were those? 2 A. Well, for "no contact," our numbers were 3 all A's, and the Als indicated no precautions 4 required. That was for no contact, under "eyes, skin and inhalation and ingestion." 6 For "minor contact," which would be 7 batch operations, we suggested the use of safety 8 glasses for under "eyes" and "no unusual precautions" for the others. 10 And under occasional daily -- well, I -11 I want to back up. May I? 12 Q. Yes. 13 A. That was minor contact that I just told 14 you. 15 Now I want to tell you about occasional 16 daily contacts, which is the batch operations. 17 And, in my discussion, I turned those two 18 around. I'm sorry for that. 19 Q. All right. 20 A. But under the batch operation, we 21 suggested safety glasses and dust respirators, 22 under "inhalation." 23 Under "gross contact," where you might 24 have great clouds of dust - 25 I've never seen this with asbestos but 36 1 it's possible. 2 -- we had safety glasses with side 3 shields and air-supplied or self-contained 4 breathing apparatus. 5 Q. Was there any key to what occasional 6 contact is, or what those -- what those letters 7 stand for? 8 A. Well, the letters that I that I meant -- that I have here are keyed down below. 10 Q. All right. 11 A. And if it says "All under "Respiratory," 12 that means no respiratory protection required. 13 And - 14 Q. I see. 15 A. -- for instance, if it says "El' under 16 "Respiratory," then it says right here - 17 Q. Okay. 18 A. -- that it is self-contained breathing 19 apparatus or air supplied. 20 Q. When you were filling out this 21 datasheet, and I think you had a comment down at 22 the-bottom, what does it say, "dust" -- 23 A. It says "dust respirators." 24 Q. "Dust respirators"? 25 A. in other words, it says, here, "suitable 37 1 gas mask canister.,, Well, that got in there because most of what we make datasheets for we're 3 talking about vapor or gases. And so we added 4 the dust respirator because here we're talking about a dusty material, rather than -- than a 6 vapor or a gas. 7 Q. What was the basis of your information 8 about the types of contact and whether a dust respirator ought to be used at certain times or 10 not, as far -- you said that you hadn't done 11 testing specifically at Dow on - 12 A. Well, our knowledge concerning asbestos 13 took - 14 Q. -- on dust, so where did your knowledge. 15 come from? 16 A. -- came directly from the literature. 17 Q. All right. 18 A. The generally available information. 19 Q. Okay. And in the generally available 20 information, were there reports of certain levels 21 of exposure? 22 A. Well, there was -- early on, there was a 23 list that was put together of numbers that 24 people -- that were thought, if you didn't go 25 above those concentrati(,ns, you would have no 38 1 difficulty. 2 Q. All right. What was - 3 A. As you went above those numbers, you 4 increased the likelihood of trouble. Itwasn't ever meant that if you went above that level, you 6 would immediately have trouble. 7 Q. All right. Were there numbers for 8 asbestos already in the literature at the time you made this datasheet? 10 A. Yes. The number -- 11 Q. And where -- 12 A. The number was five million particles 13 per cubic foot, as we have it on our datasheet. 14 And that came right from -- at the time this 15 datasheet was written, it was the threshold limit 16 value. 17 Q. All right. Can you explain to the jury 18 what a threshold limit value is, just in general? 19 A. It's -- it's a number that expresses the 20 amount of the material that's to be found -- that 21 you can measure in the air. And the threshold 22 limit value was meant to be a guide with people 23 who had taken samples. It had numbers that 24 described the environment. 25 Then you went to the threshold limit 39 1 value, and if your numbers werebelow that number, you shouldn't have toworry about a 3 health hazard. 4 Q. All right. 5 A. That was -- I think that's -6 Q. Okay. How did you -- as far as a dust 7 concern, how did you measure whether you were 8 within the threshold limit values or not? 9 A. Well, with dust, the technique was a 10 very arbitrary technique. And in order to get 11 numbers that could be compared with the five 12 million particles, it was necessary that you take 13 the sample with a properly designed piece of 14 equipment that would -- and then that the sample 15 be treated specifically, as far as transferring 16 it to a dust counting cell, and then that you use 17 a microscope that had exactly the right optics. 18 This whole thing had to be right because 19 it was an arbitrary measurement. 20 Q. All right. The -- the equipment that 21 was used, was this something you were familiar 2 with? 23 A. Oh, yes. We used impingers, generally 24 what was called "small impingers." The important 25 thing here -- well, we bought the impingers. We 40 I didn't make them, but they were -- they were manufactured to proper specs. And then you ran 3 t.hem at the right rate of air flow through the 4 impinger in order to -- in order to satisfy the requirements of the method. 6 Q. Did you know how to conduct an air 7 sample study yourself? 8 A. Yes. I learned from one of the fellows that did the developmental work in the first 10 place. The first use of this technique was II developed in connection with silica sampling in 12 Vermont. And Warren Cook, who was, I think, a 13 student at the time while that work was being 14 done up in Vermont, had been one of the people 15 that developed the technique for sampling. 16 And it just happened, that when I needed 17 to know how to sample dust, that he was the 18 industrial hygienist for the Zurich Insurance 19 Company, and Zurich had the Dow insurance 20 business, and so I a-sked him if he'd help me 21 learn how to count dust in the foundry that we 22 had,, He came and spent about a week with me, and 23 that's how I became an expert dust counter. 24 Q. In this -- Warren Cook, you said -25 A. M-hlm. 41 I Q. was he the person who came up with the list of the MAC'S, as you described the,-n? 3 A. He's the man, that up until Warren wrote 4 down the list of materials with numbers after them, that were called MAC'S, what was - 6 happened was that people talked to each other, 7 And the conversation would go like this, "If you 8 measured this material, how much did you find, and what was the result of that, in terms of your 10 people?-" II Q. All right. So Mister - 12 A. And so he did a service to industrial 13 hygienists, because he gathered together all that 14 kind of information he could find, and he called 15 it an MAC. 16 Q. All right. And the -- the MAC's were -17 were used before the threshold limit values -- 18 A. They predated threshold limit values. 19 Q. All right. 20 A. Threshold limit values were -- that was 21 a terminology used after the American Conference 22 of Governmental Industrial Hygienists took over 23 this MAC - 24 Q. All right. 25 A. -- list. 42 1 Q. I'm going to take this exhibit from you for just a minute. 3 A. All right. 4 Q. The exhibit that I had handed you, which is referred to as Exhibit No. 1, is a report that 6 includes the datasheet, and then it had some 7 other pages back here. Would this just be the 8 raw data that the 9 A. That's - 10 Q. -- that this came from? 11 A. That indicates what they observed when 12 they put the material on the rabbit's stomach. 13 Q. All right. And did you review this 14 report when it was prepared, or about at the time 15 it was prepared? 16 A. No -- no. I only reviewed the 17 datasheet. 18 Q. All right. 19 A. The report was the business of the 20 toxicology laboratory, and you'll see two 21 toxicologists, names on there. 22 . Q. So the only part of this report that you 23 were familiar with -- or not familiar withr but 24 the only part that you checked or reviewed - 25 A. I read the rei,@-,r7tf probably,, but the 43 1 part that I had responsibility for was the datasheet. 3 Q. All right. And that would be your name 4 by "checked," H. R. Hoyle? 5 A. Yes, ma'am. Correct. 6 Q. I wanted to look at the second page of 7 this report. When you indicated that you had - 8 under "Occasional Daily Contacts" on this particular - 10 A. M-hlm. 11 Q. -- setting, what was your -- what was 12 your understanding of what this meant, as far as 13 dust exposure or the threshold limits? 14 A. Well, the threshold limit values were 15 numbers that were supposed to represent a safe 16 and healthful work environment for eight hours a 17 day. And the occasional daily contacts, they - 18 they might -- the kind of operation that we think 19 of here that would -- would be what we called 20 batch operations, where materials are introduced 21 into equipment, and equipment is properly closed 22 up, and then while you're putting the stuff in 23 the equipment, you might have some exposure. 24 Then later on, you may open up the 25 equipment to remove whatever is in there that 44 1 you're trying to make, and that would represent another possible exposure. 3 Now, I can relate this to asbestos, in 4 my own experience, only by saying that if a person were using asbestos as an insulating 6 material, the occasional contact would come when 7 he did something like cutting it. 8 Q. All right. And what about -- in your experience, what about other types of uses, other 10 than the actual cutting of insulation material? 11 A. Within Dow, the only other use of 12 asbestos was in the chloralkali business. 13 Q. All right. Were the uses that you 14 observed, in your opinion, under the threshold 15 limit values as they were established at the time 16 -- at this time, of the five million particles? 17 A. I wouldn't -- my experience would have 18 told me to expect, that on the basis of 19 eight-hour exposures, they were indeed lower. 20 Our choice of dust respirators for 21 occasional contact indicates that -- that we saw 22 the possibility of short periods of time when it 23 might have gone above that number and, therefore, 24 the dust respirator. 25 That's a pretty conservative approach to 45 1 suggesting the respirator, but that's what we chose to do. 3 Q. All right. I'm going to go on to a 4 different exhibit in just a moment, Mr. Hoyle - 5 A. m-h,m. 6 Q. -- but one of the -- when you were 7 saying -- we were talking about communication of 8 information, the datasheet would be made on all the chemicals or all the materials that you felt 10 that individuals would come in contact with when 11 they're working at - 12 A. Well, there were two -- 13 Q. -- Dow? 14 A. There were two ways that we made the 15 datasheets. one I've already described, where it 16 was a part -- it was done everytime that there 17 was any material tested in the toxicology 18 laboratory. 19 And the other way related to the 20 industrial hygiene activity, in that the very 21 first thing we did when we went into a department 22 was'to inventory the materials and forms of 23 energy in that department. And then each of 24 those materials and forms of energy had to have a 25 datasheet. Actually, the datasheet in this form 46 1 was only for materials. 2 Q. All right. And this datasheet was - 3 was kept in the records at Dow in - 4 A. Well, what happened to the datasheet, after they were made, was that the -- throughout 6 the company -- and this gets beyond the geography 7 at Dow, but includes the -- the Dow operation 8 I mean, the Midland operation, the Safety Department and the Medical Department would have 10 received copies of all of them, and then we would 11 have sent -- sent copies to the various 12 departments that we knew about who might have an 13 interest. And then there was another copy that 14 went to a place called Central Research Index, 15 which was a repository for all Dow knowledge. 16 Q. All right. So that was -- information 17 was sent to various parts of the company, as 18 you've described? 19 A. It did go on to the people that could 20 use it 21 Q. Okay. So there was a threshold limit 22 value already established for asbestos, or an MAC 23 for asbestos at the time that -- that this 24 datasheet was prepared; is that correct? 25 A. That's correct. 47 I 3 4 6 7 8 9 10 II 12 Q. Was -- did -- Dow manufactured a number of different products. Did Dow manufacture a product with asbestos in it? MS. ABRAMS: objection. Lack of foundation. It calls for speculation. THE COURT REPORTER: Ma'am, you're going to have to keep your voice up. I didn't hear the objection. MS. ABRAMS: Lack of foundation, and it calls for speculation. Q. (By Ms. Clark) All right. Go ahead and answer the question. 13 A. May I answer the question? 14 Q. Go ahead and answer the question. 15 A. I don't speculate when I say that 16 was no Dow product that had asbestos in it 17 Q. All right. 18 A. -- at the time I was working there, 19 anyhow. 20 Q. All right. And the time you were 21 working there was from 1941 through 1946 - there 22 A. Well - 23 Q. 24 A. up to 1946 -- 1976? my knowledge concerning the asbestos, 25 I think I should limit it to 148 to 176. 48 1 Q. Okay. And the datasheet was prepared on asbestos in this particular case because asbestos 3 was in the floor tile formulation that was being 4 tested? 5 A. That's the reason this particular 6 datasheet was formed -- was -- 7 Q. And that's the one I'm talking about. 8 A. And that's the one you're talking about. 9 Q. Right. 10 When did you first -- when did you first 11 learn that asbestos could present a health 12 hazard, approximately? 13 A. That was common knowledge at the time I 14 became an industrial hygienist, I believe. 15 Q. All right. And what was -- what was the 16 nature of the hazard that you were aware of? 17 A. There was -- there was a disease called 18 asbestosis, which resulted in fibrotic change in 19 the lungs, and it was--- quite similar to something 20 called silicosis,-which-I--alluded to a-few 21 minutes ago. 22 Q. All right. Well, how did you believe 23 that such a potential hazard as asbestosis could 24 be controlled? What what did the literature 2 5 say? 49 1 A. Well, if you -- if we maintained the environment so that it -- you didn't go above 3 five million particles per cubic foot, it should 4 be safe, according to the common -- 5 Q. All right. So that you felt that the 6 five million particles TLV was the level below 7 which you should - 8 A. That's the guide that we used - 9 Q. keep the exposure? 10 A. that we used to make any decisions we 11 had to make concerning asbestos. 12 Q. All right. And you -- you indicated 13 from your study that there was no -- there was no 14 Dow product that wasmanufactured there that 15 contained asbestos? 16 A. That's correct. 17 Q. Okay. And someone had asked the 18 question, I think from the audience here, that in 19 your Exhibit No. 1, what is the date that you had 20 signed this datasheet, so that everyone here can 21 hear that? 22 A. The date I signed it was the 7th of 23 April, 1958, according to the numbers on the 24 datasheet. 25 MS. CLARK: I might offer that in a 50 1 minute. 2 Q. (By Ms. Clark) All right. Were there 3 any -- and this might be a little bit redundant, 4 but as I understand it, there were no dust studies done by your department at the time that 6 this particular datasheet was prepared in 7 connection with that datasheet; is that correct? 8 A. If when you -- if when you say, "my department," you mean the Toxicology Laboratory, 10 that's true. 11 Q. Yes, sir. Yes, sir. 12 A. And -- but that -- I -- I wasn't 13 responsible for the Toxicology Laboratory. 14 Q. All right. 15 A. That's why my answer is the way it is. 16 Q. Okay. So the dust study -- the 17 Toxicology Department did not do a dust study on 18 that particular occasion? 19 A. That's right. 20 21 (Whereupon, there was a discussion held off 22 the-record, after which the videodeposition 23 continued as follows:) 24 25 Q. (By Ms. Clark) Well, I just -- I 51 1 thought I thought I understood you to say that on the occasion in question that this particular 3 exhibit was -- Exhibit No. 1 was prepared, this 4 datasheet, that the Toxicology Department did not do a dust - 6 A. The only thing that was donewas a - 7 Q. study. 8 A. was a skin test. 9 Q. Okay. Well,, I may havemisheardyou, so 10 thank you. I think that's -- that's correct. 11 I'm going to show you what's been marked 12 as Hoyle Exhibit No. 2, and this is another 13 report we won't need to go through all of it in 14 detail, but just to -- it's, I think, companion 15 to the other one. 16 This one was dated April 21st, 1958. 17 And it -- would you identify that exhibit for us, 1 8 please? 19 A. This one reports the results of range 20 finding toxicological tests on a floor tile 21 formulation which contained an epoxy resin. 22 Q. All right. And this is the floor tile 23 sample that we were talking about earlier that 24 the other datasheet came from? 25 A. The other datasheet was -- described the 52 1 asbestos, which we find here. 2 Q. All right. 3 A. And, as you recall, the asbestos was 4 sent in as a separate sample, because of a skin problem that the investigator was having. 6 Q. Okay. 7 A. That was not the only thing that was 8 tested. The other -- other materials within this formulation were tested. We aren't looking at 10 the -- the reports, because the asbestos is the 11 only one is in that report that you showed me. 12 Q. All right. There would have been a 13 report on the other things -- 14 A. I'm sure there was, yes. 15 Q. Okay. So what does this report deal 16 with? 17 A. This -- this report deals with a whole 18 formulation. You take the whole mixture and put 19 it on the animals, on or in them. 20 Q. All right. This was done by the 21 Toxicology Department? 2 A. Yes. 23 Q. And there were findings that were listed 24 on this particular report, and they had to do 25 with the whole formulation? 53 1 2 3 A Yes Q All right. A. And they're -- they're a little 4 different. 5 Q. Okay. And why would they be different? 6 A. Well, because there are other things 7 than asbestos in the formulation. One would 8 expect they might be different. 9 Q. All right. And this would be about the 10 same time, prepared about the same time as the 11 other one? 12 A. It -- yeah, the same time. It turns 13 through -- it turns out they came across my desk 14 on the same day, apparently. 15 Q. All right. I notice that you have a 16 note at the bottom, where you have an asterisk. 17 It says, "Estimated on the basis of asbestos and 18 silica content." 19 A. M-hlm, yes. 20 Q. And can you explain what that has 21 reference to? 22 A. Well, in the formulation that was sent 23 in, it showed that sand, which is silicon 24 dioxide, or silica, represented 12.5 parts, and 25 Asbestos 7M, which is what we were talking about 54 1 a minute ago, represented 19 parts out of the total. There are no -- no testing was done that 3 would have -- no dust testingdone; therefore, 4 the information that's passed along concerning dust is a judgmental thing based on the fact that 6 it had sand and asbestos in it. And the rest of 7 the formulation wouldn't have required any 8 unusual personal protective measures. 9 Q. Okay. So that was based on what you 10 knew from the literature at that time, that 11 they - 12 A. No. That was - 13 Q. that would be okay? 14 A. that was the common knowledge 15 concerning asbestos and silica. 16 Q. All right. 17 A. It represents what the toxicologists 18 knew about it. I probably knew the same thing. 19 Q. Okay. And that when -- you also checked 20 that datasheet and -- and -- 21 A. I did. 22 Q. -- acknowledged that datasheet. 23 A. I did, on the 7th of April, '58. 24 Q. Okay. 25 A. I think that's what -- it was April 55 1 of '58 on the other one. Anyhow, I think it was the same day, by coincidence. 3 Q. Give me just a second. And was it your 4 understanding, that although they were testing floor tile formulation, that Dow did not 6 manufacture and sell this floor tile product? 7 A. Dow did not manufacture and sell the 8 floor tile. The floor tile formulations were studied in a -- in one laboratory, one room 10 Q. All right. 11 A. -- at Dow. It never -- and it never go 12 beyond that point and wasn't expected to, within 13 Dow. If it went beyond that point, it would h 14 been in some customer's plant, the customer 15 buying the epoxy resin, or I guess in that case, 16 it was chlorinated polyethylene, but, anyhow, a 17 resin from Dow. 18 Q. All right. What you were doing was 19 trying to formulate a resin that could be used in 20 a floor tile formulation for somebody else to 21 use, if it would work out? 22 A. Sure. If they would want to use a Dow 23 product, that's right. 24 Q. All right. Well, at this point, I want 25 to'take just about a five-minute break. 56 1 2 3 A Okay. Q. Thank you. THE VIDEOGRAPHER: The time is 4 10:29 a.m. 5 Off the record. 6 7 (Whereupon, there was a brief recess, 8 during which the proceedings took place as 9 follows:) 10 11 MR. STUART: Let's have this 12 marked. 13 14 (Whereupon, the instrument referred to 15 by counsel was marked for identification as Hoyle 16 Exhibit No. 4.) 17 18 (Whereupon, the brief recess was 19 concluded, and the video deposition continued 20 as follows:) 21 22 - THE VIDEOGRAPHER: The time is 23 10:42 a.m. 24 On the record. 25 Q. (By Ms. Clark) Mr. Hoyle, we're -- we 57 1 were talking about threshold limit values a little bit before. 3 You had testified that the threshold 4 limit value for asbestos was about -- was five million particles per cubic foot of air. What - 6 how long was that the threshold limit value, the 7 established one? 8 A. Well, it wasn't changed until around 1970, I think, something like that. 10 Q. All right. So through the time you were 11 an industrial hygienist in the late 140's, 150's 12 and 160's, the threshold limit value remained the 13 same, is that correct, for asbestos exposure? 14 A. Yes. 15 Q. All right. Did you conduct any dust 16 studies related to asbestos exposure yourself, 17 have someone conduct them? 18 A. We made measurements of the amount of 19 dust during the various operations where asbestos 20 was present. 21 Q. All right. And how did you do that - 22 what -- what parameters did you set up? 23 A. We used -- we used the techniques that I 24 described to you before, where we used the 25 impinger to take the sample, and then either 58 1 counted the dust ourselves, or had it counted. By that time, Dow had a microscopy laboratory. 3 Q. A microscopy -4 A. Laboratory, m-h'm. 5 Q. Laboratory? 6 That -- what is that? 7 A. Well, this is a group of people who use 8 microscopes to look at things. They're experts in microscopy. 10 Q. All right. Well, you've talked about 11 five million particles and about counting dust, 12 and I think the jury may be wondering how you 13 count five million particles of something. 14 Do you sit there -- I have a vision of 15 sitting there and taking a long time and counting 16 them one by one. 17 A. No. 18 Q. How is that done? 19 A. No. You do it by taking a part of the 20 total sample. And then another part of the 21 technique is to have the field that you're 22 looking at divided by little squares that you 23 know the size of, and you can -- you can count in 24 relatively small numbers, and then by applying 25 the right kind of arithmetic, you can come back 59 1 to a cubic foot of air. 2 Q - All right. 3 A. See, the amount of air that's sampled in 4 the sample you actually look at is pretty small. I mean, that's only a small part of the total 6 sample that you look at. 7 Q. So you count a small percentage of that, 8 and then you extrapolate that up to the 9 A. That's true. 10 Q. -- to the five million, or something? 11 A. And you count more than one field so 12 that you have something to average. 13 Q. Okay. And so you have indicated that 14 you -- you tested the air sample on several 15 differentjobs -- or several different tasks, I 16 guess would be a better way to describe it. 17 Can you just tell us, briefly, how you 18 did that, how you set up the test? 19 A. Well, there were -- part of the data 20 that I was referring to is reported in a report 21 that we looked at the other day which was a 22 matter of actually doing an in-depth industrial 23 hygiene survey in work environments, where 24 asbestos was present. Those were the work of Roy 25 DeGesero I'm talking about. WORLDWIDE COURT REPORTERS, INC. HOUSTON(713)651-1100/BEAUMONT(409)833-0016 60 I And the other sampling was done in the chlorine cells, or the chloralkali plant, as it's 3 called in some parts of Dow,, where the jobs were 4 evaluated, which involves the use of asbestos. 5 Q. All right. What -- what jobs did you 6 think involved the use of asbestos, what jobs 7 were you looking at? 8 A. Well, insulators were -- do use some insulation that contains asbestos. This doesn't 10 represent a -- their full job, or anything of II that kind, because pipe covering or as -- or 12 insulation that's like on the vessels, is put on 13 for a number of reasons. It -- it's always, 14 somehow or another, to control temperature. But 15 a whole lot of the insulating that was done was 16 to avoid the effect of low temperature; in other 17 words., freezing up outdoors in Michigan -18 Q. All right. 19 A. -- as opposed to the asbestos-containing 20 insulation which you used in high temperature 21 applications and represented less in terms of the 22 total use of pipe covering or insulating 23 material. 24 Q. All right. 25 A. It -- it -- it wasn't a high 61 1 percentage. I don't Icnow exactly what percentage of the total it would have been. 3 Q. All right. I think we need to kind of 4 put this in terms of time and when certain - when certain tests were done. 6 The tests that you're talking about that 7 Roy DeGesero did, that I think will be an exhibit 8 later on in your deposition - 9 A. Yes, it will come along a little later. 10 Q. -- what -- approximately when were those 11 tests done? 12 A. They are done in the late 160's. 13 Q. All right. In the late 160's, those 14 were done. And did you -- had you conducted a 15 test earlier than that, yourself, on a pipe 16 coverer? 17 A. Probably in the late 150's, but in 18 the 150's sometime or another. What I did was 19 get a pipe coverer to do the different things 20 that pipe coverers have to do. It wasn't done 21 under actual pipe covering conditions in the 22 plant, because my purpose was to see how much 23 dust he would create cutting pipe covering and 24 putting it on pipe, and this kind of thing, so 25 that we could make some judgments concerning the 62 1 recommendations for respiratory protection. 2 Q. All right. And this was -- was done, 3 you said not under actual working conditions, but 4 you checked - 5 A. It was done in an indoor environment, 6 because most of our Michigan environment, work 7 environments are indoors. 8 Q. All right. That's what you were saying," then, in Michigan, a lot of the pipes are indoors 10 because of the freeze -- because of the cold, and 11 all that? 12 A. That's right, m-hlm. 13 Q. So that was -- your first sampling that 14 you did in the late 150's was ofthat work -- 15 A. Yes. It was not a -- 16 Q. -- situation? 17 A. It was not an extensive investigation. le Q. All right. 19 A. It was done -- it was done simply to get 20 an indication of the levels that you might run 21 into while doing different things that they told 22 me they did. 23 Q. All right. Did -- did you reach any 24 conclusions about what -- what should be done 25 related to certain tasks and jobs that someone 63 1 working directly with insulation did? 2 A. There -- there were a couple of things 3 that he did where the -- where there was some 4 obviously dusty conditions. And I did the sampling in a different way than the way I've 6 described to you. 7 There was on the market and in our 8 hands, at that time, something called a Bausch & Lomb dust counter, and it didn't fit the cookbook 10 for counting dust, but it did give you an 11 indication of dirtiness, and it was a 12 conservative approach because you could see a lot 13 more dust in a dark field microscope, which is 14 what B & L dust counter was. 15 I used that because it was more 16 convenient and it gave me -- I knew that whatever 17 numbers I got would be high. 18 Q. All right. 19 A. And, therefore, if I made a judgment 20 based on those numbers, I would be conservatively 21 s a f e . 22 -Q. Okay. Now, did you come to any 23 conclusion about any of the tasks that you were 24 monitoring for at that time? 25 A. Yes. Those that were obviously dusty, 64 1 there were a couple. One was sawing, cutting, and the other was removal of old pipe covering. 3 Q. All right. And this was on an indoor, 4 enclosed - 5 A. It was in the shops- 6 A. place? 7 A. on a shop bench. 8 Q. Okay. And what recommendation would you have madeon that - 10 A. Simply that they wear - 11 Q. -- response? 12 A. Simply that they wear a dust respirator 13 while they were doing those jobs. 14 Q. All right. Otherwise, you felt that 15 that they were well within the TLV'S? 16 A. That's right. 17 Q. All right. Now, what we need to do 18 can tell we're -- we've already been admonished 19 once by the court reporter, and that's I'm 20 talking when you're talking, and you're talking 21 when I'm talking, so you need to let me finish 22 the.question, and I need to let you finish your 23 answer, if that's all right. 24 A. Okay. 25 Q. So you felt that a dust respirator might 65 1 be used if conditions exceeded the threshold limit values of five million particles; is that 3 correct? 4 A. That's generally the way we approached 5 it. 6 Q. All right. You had referenced a little 7 bit earlier some studies that were done in 1968 8 or 169. 9 A. M-hlm. 10 Q. And we want to look at those in just a 11 minute. 12 MS. CLARK: I'm not sure, do we 13 have those exhibits over there, the DeGesero 14 exhibits? 15 Q. (By Ms. Clark) One of the questions that 16 I have, when you said that you're counting dust 17 samples, and so forth, were youcounting -- did 18 you consider the threshold limit value, when you 19 referenced it, to be total dust or to be -- how 20 did you -- 21 A. The first -- 22 Q. How did you look at that? 23 A. The first thing we did, which I Just 24 finished describing to you, was not an in-depth 25 study, and we just simply used all the dust that 66 1 we saw. 2 Q. All right. So when you -- when came to 3 your conclusion about various dust leveis, you 4 were talking about total dust levels? 5 A. Yes. We knew there was asbestos 6 present, but we didn't -- we didn't try to 7 characterizethe sample, in terms of percent of 8 asbestos. 9 Q. All right. The court reporter is 10 marking a couple of exhibits for us. 11 12 (Whereupon, the instruments referred to 13 by counsel wee marked for identification as Hoyle 14 Exhibit No. 5 and 6.) 15 16 Q. (By Ms. Clark) Mr. Hoyle, I'm going to 17 hand you what's been marked as Hoyle Exhibit 18 No. 5, and I would like for you to identify that, 19 if you can. 20 MR. COVERT: Excuse me, Sandra. 21 Could you let us know what you're introducing? 22 MS. CLARK: That would be nice, 23 wouldn't it? I'm sorry. I kind of -- that was a 24 report that -- let me look at it -- called "A 25 Survey and Evaluation of Pipe Coverers' 67 1 Exposure," and it is by R. A. DeGesero, and it's dated March 21, 1959. 3 MR. JONES: Sandra - 4 MS. CLARK: M-hlm. MR. JONES: I know lie's 6 distributing some now, but we haven't seen "4,11 7 and I was just wondering if you are intentionally 8 skipping over four 9 MS. CLARK: Yeah, I'm -- I'm 10 intentionally skipping that number and coming 11 back to it, so - 12 MR. JONES: Okay. 13 MR. BEZET: 11411 is the October 14 26th, 1964 letter to R. C. Middleton - 15 MS. CLARK: Yes. 16 MR. JONES: 169. 17 MS. CLARK: Mr. Hoyle referred to 18 this one earlier, and so I want to go ahead and 19 talk about this one. 20 21 (Whereupon, there was a discussion held off 22 the-record, after which the proceedings continued 23 as follows:) 24 25 MS. CLARK: We have some extra 68 I copies of it around. If you have one -- does everybody have access to one? 3 MR. GEORGE: How about one more 4 over here? 5 MS. JENKINS: Do you have any extra 6 ones? 7 MS. CLARK: I don't know that we 8 have an extra one. 9 10 (Whereupon, there was a discussion held off II the record, after which the proceedings continued 12 as follows:) 13 14 Q. (By Ms. Clark) All right. Do you have 15 that exhibit? 16 A. I do. 17 MS. CLARK: Where is my copy? 18 Thank you. 19 Q. (By Ms. Clark) All right. Would you 20 identify for the jury what this report is, 21 please? 22 .A. This is a report of a study -- a survey 23 of pipe coverers, exposure to dust from 24 insulation containing asbestos. 25 Q. All right. And and who prepared this 16 69 1 study? 2 A. The work was done by Roy A. DeGesero, 3 who was an employee who reported to me, at that 4 time, an industrial hygienist. 5 Q. All right. Now, Roy DeGesero was an 6 industrial hygienist at Dow? 7 A. Yes, ma'am. 8 Q. And he reported to you? 9 A. Yes, ma'am. 10 Q. Did you have anything to do with the 11 plan or setup of this particular study? 12 A. I was involved in the planning. There's 13 another name that maybe should be mentioned. 14 Q. Surely. 15 A. Because Ralph Langner had, at this time, 16 become Manager of Industrial Hygiene for the 17 Michigan Division, and he didn't yet have a crew 18 of industrial hygienists. During this period of 19 time, people working for me were assigned to 20 projects that he might identify in the Michigan 21 Division. So he was involved in the planning, 22 and-so was I. 23 Q. All right. 24 A. But Roy DeGesero was rather a new man, 25 and I was responsible for the quality of his 70 1 performance. It's a little complicated, but Ralph was responsible for the planning of the 3 project, but I was also involved in it. 4 Q. Okay. I wanted to ask you a little bit about this, as an aside. You said that there was 6 the Michigan Division, and so you, at this time, 7 were a little bit -- you were not directly in 8 charge of a division, but you were a little apart from that; is that correct? 10 A. Well, what happened was that when I 11 became an industrial hygienist, there wasn't any 12 identified difference between the corporation and 13 the Dow Chemical Company in Michigan. 14 As time went along, then the various 15 divisions of the company were organized and . they 16 got their own industrial hygiene functions. 17 Q. Okay. 18 A. And then mine became a corporate 19 function, with some responsibility and contact 20 with these various industrial hygiene functions. 21 Q. So there was a division in Texas, as I 22 understand it -- 23 A. That's right. 24 Q. And there was a division in Louisiana? 25 A. Yes. 71 1 2 3 4 5 Q. And then there's a Midland Division? A. And there's a Western Division. Q. And a Western Division. A. And a Eastern Division. Q. And each of those, at some point in 6 time, had its own Safety and Industrial Hygiene 7 Departments? 8 A. As soon as they grew to the size that justified it, then they had their own, that's 10 true. 11 Q. All right. And so what was your 12 responsibility, then, to the industrial 13 hygienists that were in the -- in the divisions? 14 A. Well, it was a dotted line 15 responsibility. I had a responsibility to see - 16 to see that information got to them, to see that 17 information was actually exchanged back and 18 forth. 19 The -- the group that I had 20 responsibility for had broad -- broad 21 responsibility within the company beyond 22 industrial hygiene within the production plants. 23 It finally developed into something called 24 "product stewardship," which is the part of the 25 effort that had to deal with our relationship to 72 1 our customers and the general population. 2 Q. All right. So what you -- you said a 3 "dotted line responsibility." You gave -- you 4 were a resource person for information and exchanged information with them; ;-s that correct? 6 A. And I -- and I had some responsibility 7 for knowing what they were doing and having some 8 input into the plans that were made. 9 Q. All right. But they -- they implemented 10 certain programs within the division? 11 A. On a day-to-day basis, I tried. 12 Q. Okay. So Roy DeGesero -- we'll get back 13 to this exhibit again, and that's Exhibit No. 5; 14 is that right? 15 Roy DeGesero actually undertook to do 16 this particular -- 17 A. He did all of the sampling. 18 Q. Sampling? 19 A. M-h'm. 20 Q. All right. You -- you are the person 21 signed here who checked this report, and your 22 signature is dated March 24, 1969? 23 A. Yes. 24 Q. Is that correct? 25 A. Yes, ma'am. 73 1 Q. What were you -- okay. What was the purpose of this particular study? 3 A. Well, it had the same purpose as all 4 industrial hygiene studies at Dow, to evaluate the exposure of people to be certain that they 6 were within acceptable limits. 7 It had a further reason for being, 8 because this is at a time when the five million particles per cubic foot threshold limit value 10 was under question, and it was obvious to us 11 that, barring some added information, it was 12 going to became two million particles per cubic 13 foot. 14 And so there's a need to know, in 15 considerable detail, where we are with respect to 16 exposure, to see what effect on our operations 17 the new standard was going to have. 18 Q. All right. And so what operations were 19 actually monitored? 20 A. Well, in this case, it was all the 21 things that pipe coverers were doing. 22 Q. And what was -- what was the result that 23 were reported here in these dust studies? 24 A. Well, in broad terms, the -- I mean, in 25 the conclusions, the time-weighted exposures that 74 1 were done were acceptable with five million particles as the number, were not acceptable with 3 two million particles as the number. 4 Q. So the studies that were done would have been acceptable under the threshold limit values 6 that had been in place from nineteen -7 A. Yeah. This study -8 Q. forty -9 A. showed that what we have been 10 doing -- I'm sorry. 11 Q. Now, wait a minute. You're interrupting 12 me. 13 A. I'm sorry. 14 Q. These particular studies reflected that 15 the work done that were monitored would have been 16 acceptable under the threshold limit values of 17 five million particles? 18 MS. ABRAMS: Objection. Leading. 19 Q. (By Ms. Clark) Is that correct? 20 A. That's true. 21 Q. All right. And then you said that they 22 were - that there was -- that this was to check 23 to see which functions would have met the limits 24 of two million, when they were going to be 25 decreased to two million; is that correct? 75 1 MS. ABRAMS: objection. Leading. 2 A. The -- the results of this investigation 3 indicated that there would be a need for changes 4 in the way we were doing pipe covering if two million particles were to become the standard. 6 In other words, we were above the two million 7 particles, but below the five million particles. 8 Q. All right. And what -- what changes, then, were recommended to be made? 10 A. That there -- there are no -- there are 11 recommendations here that -- well 12 Q. Well, actually - 13 A. Let me -- let me back up. 14 Q. Okay. 15 A. The pipe coverers needed to be informed 16 of the difference between the interpretations of 17 their exposure under five and two million 18 particles. 19 Also, there were a number of ways of 20 handling the -- the exposures, so that they would 21 be reduced below the two million particles. And 22 part of -- part -- one of the ways is personal 23 protection, use of personal protective devices. 24 Another way would be soaking down 25 insulation that was old and friable and as a way 76 1 of controlling dust to some extent. And what really happened was that, in parallel with this 3 study, at about the same time, other people were 4 looking to see what other materials might work in place of asbestos-containing insulation. 6 And they found that, indeed, for almost 7 all the cases that we had, there were acceptable 8 substitutes. So the solution to the problem was not to go forward with -- with a plan to handle 10 asbestos materials but, rather, to substitute 11 materials, I mean, in pipe covering, which had no 12 asbestos in it, which left us, then, with a need 13 only to take special precautions for removal of 14 already in-place materials. 15 Q. Okay. In looking back, if you will, 16 look back at this the study that was prepared 17 here. Mr. Hoyle, you reviewed the study at or 18 about the time it was done; is that correct? 19 A. Well, during the time it was being done, 20 I had contacts with Roy, day to day. 21 Q. All right. You reviewed this - 22 Then I reviewed the file and signed it 23 on 1969, March 24. 24 Q. Was the report that was done and signed 25 by'you on March 24th, 1969, made at or about the 77 1 time that the study was conducted?, 2 A. Well, the study had been ongoing 3 probably for a few months. 4 Q. But this - 5 A. -- because these things don't get done 6 all in one day is what I'm trying to say. 7 But I don't have a recollection of 8 exactly the length of time that the study was on going. 10 Q. All right. But what I'm asking you was 11 the report was -- was prepared as soon as the 12 information had been gathered and was available 13 to be reported on? 14 A. Yes, ma'am. 15 Q. All right. And you had personal 16 knowledge of the information as it was designed 17 and as -- as it was being collected? 18 A. Yes. 19 Q. And you have -- you had knowledge of the 20 conclusions that were reached in this report? 21 A. Yes. 22 Q. And you agreed with these conclusions as 23 set out? 24 A. That's what my signature is meant to 25 mean. 78 I Q. Okay. And this report was kept in the records, in the appropriate places, in the Dow 3 Chemical Company? 4 A. Yes, ma'am. 5 Q. All right. 6 MS. CLARK: I'd like to offer this 7 Exhibit No. 6 into evidence at this time -- I 8 mean, Exhibit No. 5, that is. 9 MR. COVERT: For clarification, 10 please, in the Louisiana cases, Gary and those II involved, we reserve objections to the times that 12 they are introduced, this deposition will be 13 introduced? Is that our understanding? 14 MS. CLARK: Well, I believe that if 15 there's any objection that needed to be made as 16 to predicate,, that those should be made now, 17 since the witness is here, if any other questions 18 needed to be asked to -- if you feel that there's 19 any lack of predicate. 20 MR. COVERT: I may consider doing 21 that so - 22 MS. CLAIIK: Okay. 23 MS'. ABRAMS: On behalf of the 24 interests in California, I would object to the 25 introduction of this document as evidence, and I 79 I would reserve all of those objections for purposes of the trial at the time that this 3 deposition is introduced into evidence. 4 THE COURT REPORTER: Ms. Abrams -- MS. ABRAMS: I'm sorry. THE COURT REPORTER: Go ahead, 7 start all over. 8 MS. ABRAMS: I would object to the introduction of this document as evidence and 10 reserve our right to object to -- for purposes II of introduction of this document at trial at the 12 time -- until the time that this document is 13 introduced in a California court and the 14 objections can be duly made in front of the trial 1 5 judge. 16 I note for the record that this document 17 was handed to me about two minutes ago. I've not 18 had an opportunity to review the document at all, 19 and at a minimum, I would want the opportunity to 20 review the documentand make my objections at the 21 time that I have been able to review itand 22 question the witness on it. 23 MR. COVERT: And I would join in 24 the objection in the Louisiana cases, making my 25 objection, in general, as to these documents. 80 1 MR. HAINKEL: John Hainkel for Owens-Corning in the one Louisiana case that I'm 3 here for, the same objection. As far as I'm 4 concerned, we're operating under the Louisiana Code of Civil Procedure in that particular case. 6 MS. CLARK: All right. 7 MR. HOBSON: Let me interject, as 8 well, please, since everybody gets a chance to talk. The copies that I see, for instance, on 10 Page it looks like ST006812, there appears to be 11 handwritten notes that have been written in the 12 margins that are partially or almost totally 13 obliterated. Plus, there have been entries that 14 look to be obliterated at the top that may have 15 been handwritten. And until we can get a copy of 16 this document without the handwritten portions 17 obliterated, I'm not satisfied that I've got a 18 copy of the document as it originally existed. 19 MR. STUART: What page are you 20 referring to? 21 MS. CLARK: I'm not sure what page 22 you're referring to, Mr. Hobson. The -- the 23 exhibit 24 MR. HOBSON: The table. Here you 2 5 go. 1 MS. CLARK: Okay. The exhibit is numbered as ST006806. 3 MR. HOBSON: Look at Page 1-2, the 4 last two digits being 1-2, the table. 5 MS. CLARK: Page 1-2. 6 MR. HOBSON: Can you see, right 7 under "Range," and "Time-Weighted Factor," and 8 "Asbestos," the very tops of some handwritten notes that have been obliterated, and I want to 10 know what those are. 11 The top of that same page looks like 12 it's had writing on it. The top of the next page 13 looks like it's had writing on it. 14 MS. CLARK: I don't know. The copy 15 I have is the same -- it doesn't look like it's 16 had any writing on it, but we can talk about 17 that, if we want to - 18 MR. HOBSON: well, I object - 19 MS. CLARK: -- later. But I'll -- 20 I'll check, but that doesn't -- mine does not 21 look like anything has been obliterated on it. 22 The objections -- we do not agree that 23 objections can be reserved regarding the 24 foundation or predicate -- I mean, the State 25 Rules that apply, will apply, obviously, but we 82 1 are not, by not responding to your objections, agreeing that these can be reserved. 3 I believe under, at least the Texas 4 Rules, that whatever lack of foundation or predicate objections have to be made at the time 6 of the presentation of the -- the predicate. 7 So if we have any of those objections, 8 or authenticity-type objections, then I think, because the witness is here, they ought to be 10 made at this time. You know, if you want to 11 reurge your objection, that's fine, but we 12 don't -- you know, we're not acquiescing in that 13 objection and we will apply -- comply with 14 whatever Rules of Procedure would apply to the 15 deposition at the time. 16 MR. HOBSON: Well, my objection is 17 to the authenticity of the document, and I object 18 to a copy being produced, as opposed to the 19 original, or at least we ought to be able to see 20 the original and match -- match it to these 21 copies before they're introduced. 22 MS. CLARK: All right. That -- 23 that objection is noted. 24 MS. ABRAMS: Can I voir dire the 25 witness on this document? If not, I will reserve 83 I my voir dire, and I will, therefore, reserve my objections. 3 Q. (By Ms. Clark) Mr. Hoyle, I'm going to 4 show you what's been marked as Exhibit No. 6. And could youidentify that exhibit? 6 MS. CLARK: This exhibit, 7 Mr. Covert, to try to clue you in to what this 8 exhibit is, it's a similar exhibit. It's another Roy A. DeGesero report. 10 Q. (By Ms. Clark) And what is the date of II that one? 12 A. This was -- I signed it 10/24/69. 13 Q. Let me see yours a second. 14 A. And his -- I guess I signed it the same 15 day he signed it. 16 Q. okay. 17 MS. CLARK: And it's numbered 18 beginning with an ST000647, and it's signed on 1 9 1 0/24/69 . 20 Q. (By Ms. Clark) There you go. Would you 21 identify this exhibit, please? 22 A. This reports industrial hygiene 23 investigations made at the Ludington plant in the 24 Michigan Division. 25 Q. All right. C iild you identify, for the 84 1 record, who Roy A. DeGesero is, just briefly  please? 3 A. Yes. He was industrial hygienist at Dow 4 who reported to me. 5 Q. All right. And did you have any input 6 into the design of this study? 7 A. I would have assigned the job to Roy and 8 would have talked to him about what he was to do when he got to Ludington. So, in that sense, I 10 had to do with the design. 11 Q. And what was the purpose of this study? 12 A. Well, it was to accomplish the same 13 thing at the Ludington plant that I described as 14 the reason for having done the study in the 15 Midland plant. 16 Q. All right. Now, would you tell me what 17 the reason of doing the Ludington plant was, if 18 you had done the Midland plant? 19 A. Well, because it's a different -- a 20 different plant and different circumstances. 21 Q. What were the different circumstances? 22 A. Well, this gets me into a rather 23 lengthy -- lengthy description of the difference 24 between what happened in Midland and what 25 happened in Ludington. In other words, what they 85 I did over there in the way of manufacturing materials - 3 Q. Well - 4 A. -- was not the same as what was done in Midland. 6 Q. Okay. Let me stop you a second, because 7 it sounds like an air-conditioner vent just went a on, and I -- you may need to put your voice up a little bit. 10 A. Okay. II Q. I don't know that you need to go into a 12 lengthy description, but can you just summarize 13 the types of differences between the two 14 operations? 15 I mean, if you can't, you can't. I 16 mean - 17 A. Well, it's -- it's pretty -- it's not - 18 as far as the pipe coverers doing pipe covering, 19 it's pipe covering is pipe covering. 20 However, as far as the part that's 21 indoors, versus the part that's outdoors versus 22 the'size of the -- of the pipe being covered, 23 it's difficult for me because -- for instance, 24 there was a -- a lime kiln there which didn't 25 even exist in Midland, but which I know involved 86 1 quite a little bit of insulating 2 Q. All right. 3 A. -- which would have been a different 4 operation than those that would have been covered by the Midland investigation. 6 Q. So -- so you were -- you were testing a 7 different location and with different types of -- 8 A. We were measuring -- 9 Q. -- facilities. 10 A. We were measuring the health hazards 11 within environments that were different and 12 avail -- they were more available in Midland. 13 Q. I'm sorry? 14 A. I said we were measuring the degree of 15 exposure in environments that were different. 16 Q. All right. Well, that's what I mean 17 A. Yeah. 18 Q. That's really the -- 19 A. That's -- that was the reason -- 20 Q. the point that I -- 21 A. for going there. It was our 22 intention, purpose, and usually we managed it, to 23 have data concerning the different work 24 environments. 25 Q. What were the conclusions reached, as 87 1 far as exposure in the Ludington plant? 2 A. Well,, they were -- it turned out they 3 weren't too far different than what we found 4 in -- in Midland, in that the average was a little below 5 -- 4.4 it says -- where asbestos 6 was being used. 7 And then we had something here, I don't 8 remember fiberglass showing in that Midland study. Here did they did find 1.3 million 10 particles per cubic foot where it was fiberglass 11 rather than asbestos. 12 And for asbestos, it pointed out that 13 five million particles was acceptable. 14 And again we find that, with two million 15 particles, we're above over there, also. 16 And let's see what we said about -- oh, 17 on fiberglass, at that time, there wasn't 18 specific information available onfiberglass, and 19 so it was considered a nuisance dust, and the 20 number implying the nuisance dust was usually 21 fifteen million particles. 22 Q. Fifteen million? 23 A. Fifteen. 24 Q. Okay. 25 A. So they -- so we -- the data that we 88 1 acquired there would have said that the fiberglass was acceptable. 3 Q. All right. On Page 3 of this report, 4 there is a reference at the bottom of the page to F. A. Patty, P-a-t-t-y, "Industrial Hygiene and 6 Toxicology. 7 A. Yes. 8 Q. Who was Patty, and why was he referenced in this particular paper, if you know? 10 A. Well, Frank Patty was one of the early 11 industrial hygienists, and he had rather a -- a 12 broad experience, including Public Health 13 Service, I believe. At the time of his 14 retirement, he was in charge of industrial 15 hygiene for the General Motors Corporation. 16 He -- in this context, he was the 17 editor -- "author" is hardly the right word -- of 18 "Industrial Hygiene and Toxicology." It finally 19 became a three-volume compendium of "Industrial 20 Hygiene and Toxicology." And various chapters in 21 those books were prepared by various people in 22 the-field of industrial hygiene who he felt had 23 the necessary skills and knowledge to adequately 24 prepare such a chapter. 25 And then his function was putting the 89 1 thing together and editing it. 2 Q. Was this a -- a volume that was used 3 generally by industrial hygienists? 4 A. It was pretty much the Bible. 5 Q. All right. And what do you mean by 6 that? 7 A. Well, it was the authority, if you 8 wanted a single authority. 9 Q. But his, as it turned out., three-volume 10 set was - 11 A. 12 Q. -- was the one single,authority, if you 13 had to pick one? 14 A. If you were going to just one, I think 15 most industrial hygienists would have chosen 16 that. 17 Q. And why was it particularly referenced 18 here on this page? What -- what was the 19 reference? 20 Q. Oh, let's see. 21 Well, the formula that you see there 22 for'-- for calculating millions of particles per 23 cubic -- what is to be found in Patty's Volume 4 No. 1. 25 Q. So that was a was that a formula - 90 1 A Page 198. 2 Q. Okay. Was that a formula that was the 3 accepted formula to calculate the - 4 A. Yes. That's the one that I attempted to describe to you a few minutes ago. It's the 6 formula that would describe what was done. 7 Q. All right. Sometimes you have to take 8 more than one chance to describe a formula to 9 me. 10 A. Yeah. 11 Q. In the Exhibit No. 6, the DeGesero 12 study, what group, again, was tested in that 13 study or studies? 14 A. Well, the environments being 15 investigated were pipe coverers. 16 Q. Okay. And, again, let me ask you a few 17 questions about your knowledge of this particular 18 document. 19 Did you review this document at or about 20 the time that the study was concluded? 21 A. I reviewed it before I signed it. I 22 also probably reviewed it before it was in final 23 print. 24 Q. Okay. Did you have any input into the 25 design or the carrying out of the study? 91 1 A. Oh, yes. As his supervisor, I did. 2 Q. Okay. Would this have -- this study, 3 once it was reviewed and signed by you, would 4 this have been maintained in the records at the Dow Chemical Company? 6 A. Yes. It would have been kept in the 7 various places that I mentioned in previous 8 testimony. The Central Research Index would have had a copy, and so would the various industrial 10 hygiene and safety departments around Dow. 11 MS. CLARK: We would offer, at this 12 time, Exhibit No. 6 into evidence. 13 MR. HAINKEL: I will again have the 14 same objections as to Exhibit No. 5, and that is, 15 that all rights are reserved until the time of 16 trial in the cases in Louisiana. 17 MS. CLARK: I can't hear him. 18 MS. ABRAMS: The Plaintiff also has 19 the same objections as previously stated and 20 reserves objections until the time of trial, and 21 adds the problems of authenticity. 22 MS. CLARK: We make the same 23 response, that we would insist that objections to 24 predicate be raised now, while the witness is 25 here, who could supply information regarding 92 1 these documents. 2 Q. (By Ms. Clark) When you say "pipe 3 coverer," you're talking about a pipe coverer, 4 are they -- would they be the same as insulators, another term for these individual workers? 6 A. As a matter of fact, pipe coverers did 7 more than cover pipe, but that was the usual name 8 within Dow for people who put covering on pipe or put insulation on vessels. 10 Q. So another name for these individuals 11 might be "insulators"? 12 A. I'm sure it could be. It was 13 generally, that was not the way we described them 14 in Dow, as far as I know. 15 Q. Okay. Would you look at Exhibit No. 6, 16 Mr. Hoyle. And you might need -- you may need to 17 take a minute and -- and just thumb through every 18 page of the exhibit. 19 Do you see any changes made that you 20 would recognize from the original report that you 21 signed, from that to the copy that's before you? 22 MS. ABRAMS: objection. Lack of 23 foundation. 24 Just for the record, the original 25 apparently is not in the presence of the witness 93 1 at this time. 2 A. Table -- Table I, the word "Average" has 3 been circled and the word "Range" written in. 4 And it truly is the range. That could be my writing. I'm just not sure. It looks a little 6 like it. 7 Q. All right. 8 A. I should have initialed it, if it is my writing. 10 Q. So you don't know specifically - 11 A. I can't be sure, but I -- 12 Q. whose writing that is? 13 A. in looking at it, I -- I can see that 14 that correction needed to be made. 15 MR. JONES: Sandra, while he's 16 looking at that, can we get a clarification as to 17 whether Exhibit 5 is the Midland study? 18 MS. CLARK: Exhibit 5 is the 19 Midland study. 20 Exhibit 6 is the Ludington study. 21 MR. JONES: Okay. 22 MS. CLARK: And I'm going to have 23 him go back through No. 5, as well,, to see if 24 there are any markings on it that he could 25 identify. 94 2 (Whereupon, there was a discussion held off 3 the record, after which the proceedings continued 4 as follows:) 5 6 A. There is one other place on the very 7 last page, Page 13, where an addition has been 8 made, and that addition is written in. it says -- into the distribution list. And it says 10 "C. G. Kramer, Corporate Medical, 2030 Building, 11 6/25/70.11 12 That says, to me, that he asked for a 13 copy and got one. 14 Q. Do you know whose handwriting that is? 15 A. No. I don't recognize that handwriting. 16 Q. But what that indicates to you is just 17 an additional person got a copy of the report? 18 A. Yes. And that was common practice to 19 write on the distribution list if somebody, in 20 addition, had asked for a copy. 21 Q. All right. where is the actually marked 22 No.,5? Here it is. 23 I'm going to hand you, also, No. 5 - 24 but before you look at No. 5, in Exhibit No. 6, 25 the only markings that you noted were on the 95 1 table, which had "Average" circled and the word "Range" written above it. You can't identify 3 specifically whose handwriting that is; is that 4 correct? 5 A. I'm not a handwriting expert. I think 6 I've made marks that look like that. 7 Q. Okay. And then you noted on the 8 distribution list there was an addition? 9 A. Yes. 10 Q. All right. Would you look, now, at 11 Exhibit No. 5 and see if you recognize any 12 changes, additions, deletions. And this was the 13 Midland study. 14 MS. ABRAMS: Objection. Lack of 15 foundation. Calls for speculation. 16 A. On Page 7, there is, up in the 17 right-hand corner, an indication that something 18 has been -- been there and had been whited out, 19 perhaps. I believe that that probably was an 20 internal file number. 21 There's a little spot on page -- on Page 22 8, also, which is in that same location. And in 23 my opinion, that's probably the same thing. 24 Q. Were either of those notes located in 25 any part of the actual body of the report itself, 96 2 3 4 as far as A. No Q. -- any substance of the report7 A. No, not if theyare what I think they were, and have reason to think they were. 6 MR. HOBSON: May I see a copy of 7 the marked exhibit, as opposed to the one I'm 8 working off of? 9 MS. CLARK: I'm sorry? The marked 10 exhibit? 11 THE WITNESS: The one I'm looking 12 at? 13 MS. CLARK: Yes. 14 I believe, at this time, we're going to 15 move on from these exhibits, and I'll be happy to 16 give you this, but I think the way we had 17 scheduled things thatthis wasour -- our 18 breaking point for our lunch,and we'll break 19 now. And I'll give this to Plaintiffs counsel 20 over the lunch break. 21 MR. HOBSON: Thank you. 22 THE VIDEOGRAPHER: The time is 23 11:32 am. 24 This ends Tape Unit No. 1. Off the 25 record. 97 2 (Whereupon, there was a luncheon recess, 3 after which the proceedings continued on the 4 stenographic record as follows:) 5 6 MS. CLARK: Would you mark these 7 while we're waiting. 8 9 (Whereupon, the instruments referred to 10 by counsel were marked for identification as 11 Hoyle Exhibit Nos. 7, 8 and 9.) 12 13 THE VIDEOGRAPHER: The time is 14 1:10 P.M. 15 This begins Tape Unit No. 2 on the 16 record. 17 18 DIRECT EXAMINATION (Continued) 19 QUESTIONS BY MS. CLARK: 20 21 Q. Mr. Hoyle, we're continuing your 22 deposition now, after we've had a lunch break. 23 As an industrial hygienist, you were 24 concerned with many different kinds of chemicals 25 and substances; is that correct? 98 1 A. Yes, ma'am. 2 Q. Did you compile datasheets on all of 3 these, or most of these? 4 MS. ABRAMS: objection. Vague. 5 A. We would have had datasheets on 6 materials as soon as we identified them as being 7 a part of the Dow environment or materials 8 identified as a Dow product. 9 Q. All right. So you had datasheets on 10 things that could have been in the environment in 11 addition to things that were used in Dow 12 products; is that correct? 13 A. Oh, yes. 14 Q. Okay. Do you have an estimate of how 15 many datasheets were compiled while you were an 16 industrial hygienist there? 17 A. Well, I never counted them. I guess the 18 best way to answer your question is to say that I 19 kept a full set in my office in the notebooks, 20 and that they were kept on shelves. My office, I 21 think, was 14 feet across, and I was on the third 22 shelf when I retired, so I had something over 28 23 feet of shelf space covered with datasheets. 24 Q. All right. Were these datasheets 25 updated as time went on? 99 1 3 4 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. A. Whenever new information came along that required it, we issued a new datasheet, and the policy was to ask people to remove the old datasheet and destroy it. That was so that we wouldn't mistakenly take precautions based on old information. So it was an ongoing thing, and as fast as a new one came along, it was -- the old one was destroyed. Q. Did you try to keep the current information in the current file? A. Yes. Q. All right. Did much of your testing as an industrial hygienist relate to products that were manufactured by Dow? A. Well, we were as interested -- we were more interested in the products because, at this point, we were interested in the general public and our customers, but we had great interest in a lot of other things that were either raw materials orby-products or endprocess materials, which were of interest to us in maintaining a healthful environment for the Dow employees. Okay. And asbestos that we've been 1 00 1 talking about for a while this morning was one of those products that was in -- not one of your 3 products that weremanufactured by Dow, but one 4 of these other types of products that you might have been interested in? 6 A. Our whole interest in asbestos was 7 related to its appearing in some of the 8 insulating materials used, and also that was used in the chloralkali plants, not in the products in 10 the plant, but in the equipment that was used to 11 make -- 12 Q. In the -- 13 A. -- chloralkai. 14 Q. In the process that was used? 15 A. Yes. The equipment that was used for 16 process equipment did involve asbestos as a part 17 of the equipment. 18 Q. All right. on these other things, and 19 right now I'm not talking about asbestos, but on 20 some of the other chemicals and substances that 21 you might have been interested in, were there 22 also TLV's established for these products? 23 A. Many of them had TLV's and many of them 24 did not. The TLV's were promulgated after 25 some -- after a material became of wide enough 1 01 I interest so that the American Conference of Governmental Industrial Hygienists would include 3 it on their list. Of course, they had to have 4 information upon which to base a number so it also had to wait for the information to become 6 available. 7 Q. All right. And previously you've talked 8 about the American Congress of Governmental Industrial Hygienists. Is that my -- am I saying 10 that wrong? II A. No. You're saying "Congress," and it's 12 "Conference." 13 Q. I don't know why I keep saying that 14 wrong, but that's -- you've corrected me once, 15 but correct me again. 16 A. All right. 17 The American Conference of Governmental 18 Industrial Hygienists, we've referred to them a 19 couple of times in the past in the deposition. 20 Could you tell the jury who made up that 21 conference? 22 . A. This was made up of industrial 23 hygienists and with people interested in the 24 field of industrial hygiene. What i,m saying is 25 that an industrial physician could have been a 1 02 1 member if -- if he were getting paid tax money. 2 Q. All right. 3 A. In other words, it had to be 4 Goirern,mental. And there was one exception, as I said this morning, that some of the academics 6 were allowed to have membership who were not from 7 Government -- directly Government institutions, 8 state-employed. 9 And these were the people, the 10 industrial hygienists who developed and kept 11 maintained the list, I guess it could be called, 12 of threshold limit values? 13 MS. ABRAMS: objection. Leading. 14 A. The threshold limit value, the 15 terminology itself belonged to the American 16 Conference of Governmental Industrial 17 Hygienists. It was a project ongoing which they 18 carried out as a service to their own members and 19 to anyone doing industrial hygiene. 20 Q. (By Ms. Clark) All right. And you 21 monitored, in your various facilities at Dow, for 22 other substances that had threshold limit values, 23 in addition to asbestos. We talked about this 24 morning, but you did other monitoring 25 A. Yes, and we monitored -- 1 03 1 Q. and other things? 2 A. We monitored for materials that didn't 3 yet have a published number. 4 Q. All right. 5 A. These -- these, when they were Dow 6 employees -- I mean, Dow materials, our basis for 7 judgment was usually animal testing; that is, use 8 of an animal model to test the material for its toxic properties in the Dow toxicology lab. 10 Q. So if something didn't have a threshold 11 limit value, you might do some testing to try to 12 establish your own threshold limit value? 13 A. We did have -- we did have a list of 14 what we called "guides" - 15 Q. All right. 16 A. -- which were used in the same way as 17 the TLV'S. 18 Q. All right. Oh, was it important to stay 19 under the TLV's in the areas that you were 20 discussing and monitoring in? 21 A. We used the TLV's as a guideline in 22 making professional judgments concerning the 23 various work environments. 24 Q. You've talked about industrialhygiene 25 this morning, and I wanted to ask you about some 1 04 1 of the standards that were used in the field of industrial hygiene. And what I mean is what sort 3 of controls were used by industrial hygienists to 4 try to maintain certain exposure levels? 5 A. Well, there are a number of ways that 6 you can modify a man's exposure, or a woman's 7 exposure on the job. The use of protect - 8 personal protective devices is one way of doing 9 it. 10 And another way is to use control at the 11 point of release, and ventilation falls in this 12 category. And the ideal is to contrive to handle 13 the materials sothat they do not escape the 14 equipment soyou don't have any exposure. 15 Q. All right. 16 A. Those are the three ways in which it can 17 be done. 18 Q. And you can adapt various, I guess, 19 techniques to whatever the product was? 20 A. Well, back to our -- our datasheets, the 21 data -- the datasheets related to these different 22 ways that I've just mentioned to you. And the 23 way that the datasheets were used was that the 24 line supervisor decided which category of 25 exposure the thing that he was doing or proposed I 05 I to do would fall. As soon as he knew that, he could look and see what protective personal 3 program would be required. 4 If it were something that -- in the way of personal protection that -- that was 6 unacceptable -- suppose it came out that you 7 needed to put them in a -- in a suit, like a 8 diver. Chances are he wouldn't want to do that. Well, then he could move into another category - 10 engineering is planned accordingly -- and arrive II at a set of personal protective -- or a personal 12 protective program that was acceptable to him. 13 So he had -- that's the way they could make up 14 their mind on what they would do based on our 15 recommendations. 16 Q. All right. You testified earlier, I 17 believe, that the monitoring of the pipe coverers 18 that was done in 1969 in the DeGesero studies, 19 indicated that their work wasbelow the threshold 20 limit values for asbestos. 21 A. On a time-weighted basis., the exposures 22 were below five million particles. 23 Q. All right. I wanted to show you another 24 exhibit, and this is one that we've marked as 25 Exhibit No. 3, and this was the -- well, to -- so 1 06 I that the other attorneys here know what I'm talking about, this one is entitled, "Evaluation 3 of Chemical Exposures Received by R. R. Spencer 4 of Coatings Technical Service, in the 433 Building." 6 And I'll hand this to you. Can you 7 identify that exhibit? 8 A. Yes. This does report the findings of a very special industrial hygiene investigation 10 which was done because R. R. Spencer was having II health problems. And it's not infrequently that 12 the Medical Department would ask for a careful 13 evaluation of a work environment as an aid to 14 proper diagnosis. That's the general one in 15 which this were used. 16 Q. All right. Can you tell us what 17 chemicals or other substances were monitored in 18 this particular study? 19 A. Well, there were -- the dust that he 20 encountered was measuredwith eleven different 21 samples. This was dust-counting techniques that 22 we've talked about before. 23 And in addition to that, dust 24 concentrations on a weight basis were determined 25 in three other samples. And the materials that 1 07 1 were considered were asbestos, quartz or silica, cadmium, calcium and a resin which is simply 3 designated 2716, which is a research number 4 within Dow which describes the resin. 5 Q. Can you tell us where -- where this 6 monitoring was done and what procedure was bei-iig 7 undertaken, "procedure" meaning what was the 8 the particular job that this individual was doing? 10 A. Well, he was - 11 Q. What - 12 A. He was using what's known a Banbury 13 mixer, which is a mill, or a stirring-up device, 14 if you will, to make various formulations and 15 compound them. 16 Q. Okay. What I'm really asking you about 17 is, is this -- we've talked a little bit earlier 18 about an exhibit that was discussing the floor 19 tile formulation. Is this an individual who was 20 working in this -- with this floor tile 21 formulation that you had mentioned earlier? 22 -A. I think it is in the same laboratory. 23 Q. All right. 24 A. But it isn't clear in the description 25 here - - it doesn't actually say it in the I 08 I description of what he was doing, except in one place, where, indeed, it says he was calendaring 3 vinyl asbestos tile formulations. 4 So that tells me that, indeed, the answer to your question is "yes.,' 6 Q. All right. And these were the very - 7 the various substances and chemicals you've read 8 over that were monitored for. What was the conclusion of that report? 10 A. Well, the conclusion was that if his 11 "If Mr. Spencer's difficulty is the result of 12 chemical exposure, the causative agent is 13 unknown ... In other words, it was not 14 identified by this study. 15 He further says that when they're 16 working with chlorinated polyethylenes, we should 17 do some more testing. 18 In other words, that's the one thing 19 that wasn't done at the time these measurements 20 were made. If polyethylene -- if chlorinated 21 polyethylene was not being used as a resin, some 22 other resins were beirigused. 23 Q. All right. 24 A. And -- 25 Q. So when it says that some other testing I 09 1 should be done, it was to test for that particular -3 A. 4 Q. 5 A. 6 Q. The resin that -resin? he hadn't seen yet, that's right. Was there a -- was there a number 7 actually determined on what the exposure to 8 asbestos was in that 9 A. No. 10 Q. -- report? 11 A. The highest number that I see -- I 12 mentioned there were eleven samples that were 13 taken for counting, and the numbers ranged 14 from .02 parts per -- million parts, that is, per 15 cubic foot, to 3.2. And the average size was two 16 to three microns. And that about covers it. 17 Q. All right. Would that - 18 MR. HOBSON: Excuse me. I don't 19 think that's right. While we're here, you might 20 want to get that number right again. 21 THE WITNESS: I couldn't hear you. 22 MR. HOBSON: I think the gentleman 23 has said .02 was the lowest, and I think 24 it's .2, 0.2. 25 THE WITNESS: No. I said 0.2. if I 10 1 I didn't, I'm sorry. 2 MR. HOBSON: I beg your pardon. 3 THE WITNESS: I should have said 4 0.2, if I didn't, because that's what it says, to 3.2. Q. (By Ms. Clark) All right. So, just to 7 make sure there's -- there's nomisunderstanding 8 about that, the lower numberwould be 0.2 9 A. 0.2, and that describes the air in the 10 office, not in the lab. 11 Q. All right. Then the higher number was 12 3.2? 13 A. That's the highest number. And that was 14 during the mixing with the Banbury mixer. 15 Q. All right. And is this -- can you 16 relate this or correlate this to what the 17 threshold limit value was at the time - 18 A. It was - 19 Q. -- for asbestos? 20 A. It would have been five million 21 particles per cubic foot. 22 . Q. So would -- would this be below the 23 threshold limit value? 24 A. Yes, ma'am. 25 Q. All right. You mentioned the size of I the -- of the dust, or you said two to three microns? 3 A. That's what he says here. 4 Q. Can you tell the jury what that means? What does -- is that a measurement or what? 6 A. Yeah. That's a fraction of a 7 centimeter, or a fraction of a millimeter. These 8 are lengths, like feet and inches in the -- this is in the metric system; whereas, you would call 10 them feet and inches in the English system, the II one we're more used to. 12 Q. Okay. 13 A. But it's a distance measurement from 14 there to there. 15 Q. Okay. And was there -- was there 16 something significant about the -- the 17 measurement of the size of the fibers or the size 18 of the dust? 19 A. Well, these are not fiber readings. 20 These are particle size measurements, as I read 21 this report. And the significance is that it 22 would have put that dust in the respirable range. 23 Q. All right. Is there a -- a limit, I 24 guess, that's used in -- in the literature that 25 is a respirable range on the size of particles 112 1 or 2 A. Yes 3 MS. ABRAMS: objection. Vague as 4 to size. 5 A. There -- there is such a range, and I 6 can't remember just exactly what it was. 7 Q. Okay. So this -- in this,particular 8 sampling, then the table that you talked about discusses the various samples of asbestos usage, 10 or the dust created with asbestos usage? 11 A. These are dust measurements made in that 12 laboratory where the formulation would have 13 contained some asbestos. 14 Q. All right. And was this measuring total 15 dust measurements, or can you tell by looking at 16 t h i s ? 17 A. These measurements were total dust. 18 Q. All right. 19 A. There's nothing here to indicte 20 otherwise. 21 Q. I would - 22 MS. CLARK: Do you have another 23 copy of that? 24 Q. (By Ms. Clark) Because I'm looking over 25 your 113 1 A Oh. 2 Q. -- your shoulder. 3 That's okay. I want you to look at that 4 one. I'm going to get another copy because I can't see from hereto there. 6 A. Oh. 7 Q. That's one of those problems with 8 advancing age, I'm afraid. 9 All right. I wanted to ask you a 10 question about - 11 MS. CLARK: Did you hand me the 12 right one? Okay. 13 Q. -- about a statement in this report 14 because you -- this is a report that's dated 15 1/30/58; is that correct? 16 A. M-h'm. 17 Q. In Paragraph 2, under "Conclusions," and 18 it states in there that he worked -- Mr. Spencer 19 worked with vinyl asbestos tile formulations, and 20 in the course of that work, was occasionally 21 exposed to somewhat excessive concentrations of 22 airborne asbestos." And then it goes on and 23 gives specifics. 24 I was -- do you have a comment about 25 what is meant by Conclusion No. 2? I 14 I A. The sampling that was being reported here was in 1958. The dates mentioned here 3 are 153 to 154. That's four years before. 4 This indicates to me that in conversation with Bob Spencer, that Peterson had 6 had described to him the circumstances that had 7 existed sometime before. 8 And so this is subjective observations, and there's nothing in this report that would 10 justify such a statement as the one we're reading II here, because the numbers reported were all below 12 five million particles. 13 So you see here a subjective comment 14 concerning his previous history. 15 Q. I want to ask you another -- another 16 couple of questions about this particular 17 report. This is signed by Mr. Peterson; is that 18 correct? 19 A. That's right. 20 Q. And who is Mr. Peterson? 21 A. Oh,, he is a -- a chemical engineer who 22 23 24 25 115 3oined my group in industrial hygiene. And it was during the period of time that he was in our group that he did this work. Now, the only other characterization or 1 identification of Peterson that I can make is that he left us, returned to school at the 3 University of Michigan, obtained a Ph.D. in 4 industrial hygiene, and is presently a consultant living in Wisconsin. 6 Q. Okay. And you reviewed this report, and 7 you reviewed the data that is connected with it? 8 A. I read -- I read the report, and after I'd read it, I signed it. 10 Q. All right. And you -- this report is 11 your recollection that this report was made at or 12 about the time that this study was done, or 13 this -- I guess it's more of a report was done 14 regarding Mr. Spencer? 15 A. Yes. My recollection and judgment is 16 that samples were taken shortly before the report 17 was written -- written. 18 Q. All right. And thereport was written 19 shortly after this work was done? 20 A. Yeah, almostJuly, as soonas the work 21 was done. 22 Q. All right. 23 A. And you see -- I said before that this 24 was done at the request of the Medical Department 25 as,-- to assist them in making a diagnosis of I16 1 Spencer's problem. 2 Q. All right. 3 A. So I'm sure it would have been done as 4 soon as possible in order to take care of that requirement. 6 Q. All right. And -- and you reviewed this 7 material and were aware of the sampling that was 8 being done. You have personal knowledge, I guess - 10 A. Right. Sure. 11 Q. -- of this report? 12 A. Sure. Sure. 13 Q. All right. There is another bit of 14 sampling that was done, I believe in -- I will 15 show you what's been marked as Exhibit 4. And 16 this is a letter that's to R. C. Middleton, of 17 the Safety Department, Ludington Division. It's 18 October 26, 1964. 19 MS. CLARK: Do you all have a copy 20 of that? 21 MR. HOBSON: 'Which number? 22 MS. CLARK: It's No. 4. 23 MR. HOBSON: Right. 24 MS. CLARK: And it's ST No. 6762. 25 MR. HOBSON: You passed that out 117 1 earlier. 2 MS. CLARK: Yeah. Right. 3 Q. (By Ms. Clark) I want to hand you what 4 has been marked as Hoyle Exhibit No. 4 and ask you if you recognize that exhibit? 6 A. Yes. This is a letter which I wrote to 7 Bob Middleton to report to him the results of 8 some industrial hygiene activity at the Ludington plant. 10 Q. And what were the -- just generally, 11 what were some of the things that were looked at 12 at the Ludington plant? 13 A. Well, one of the things we looked at was 14 the plant air. Now, that's not the ambient air. 15 That's in the plant, there was air from a 16 compressor which was piped to various locations 17 for use for whatever purpose in the process. And 18 we were looking to see whether -- what the 19 quality of that plant air might be. 20 And what it says is that we found that 21 it was not contaminated with significant amounts 22 of either carbon monoxide or mercury. And we 23 further made an agree -- an arrangement with a 24 man at the Ludington plant to sample that air for 25 particles and told him how to do it. 118 1 Q. All right. And - 2 A. And then we went on and told him how to 3 interpret his results, how many -- what weight it 4 was cut out by and what wouldn't be acceptable. 5 And we talked with a couple of people 6 over there about radiation and radiation 7 manuals. I don't know if it's very apparent 8 here, but they had some instrumentation which depended on sealed sources of radiation. 10 Q. All right. And I guess to get on a 11 little bit farther in the letter, there is a 12 mention, on Page 2, of an inquiry about 13 asbestos. And what was -- what was the study 14 done, and what was your opinion? 15 A. A question was raised about asbestosis 16 having to do with sawing Transite. Transite is a 17 building material which is used on a good many 18 ways, commonly as an outside wall for buildings. 19 And it comes in corrugated sheets, and it's made 20 of mostly cement with enough asbestos in it to 21 hold it together, I think is a good way to 22 describe it. 23 And so what we said was, that although 24 the dust from such an operation will probably 25 contain respirable particles of asbestos, it's I19 I ly unlikely that enough exposure would exist in the use of Transite to represent a real 3 hazard. That was a professional judgment based 4 on no data. 5 Q. Okay. But this was what your -- your 6 judgment was at the time, in 1964? 7 A. Yeah. I was influenced partly by the 8 fact that any asbestos that was airborne wouldn't be asbestos fibers, but would be of little chunks 10 of concrete with little particles of asbestos in II the little chunk of concrete, the little piece of 12 dust. And probably what you would have the most 13 of would be the exposed end of the fiber, as 14 opposed to the fiber itself. - 15 Q. And so, in Your opinion, at that time, 16 because of those factors - 17 A. We Just didn't feel that there was any 18 need to Pursue the matter further. 19 Q. Okay. 20 MS. ABRAMS: I'm sorry. I didn't 21 hear the witness at the end. 22 THE WITNESS: I said that I 23 MS. CLARK: Wait a minute. Wait a 24 minute. 25 THE WITNESS: Oh, excuse me. 1 20 1 MS. CLARK: Why don't you read it 2 back? 3 4 (Whereupon, the requested testimony was read back by the court reporter.) 6 7 MS. ABRAMS: Thank you. 8 Q. (By Ms. Clark) Now, going back to DeGesero in these exhibits that we talked about 10 earlier 11 A. Yes. 12 Q. -- you had -- I'm sorry. That's Exhibit 13 No. 5 and 6, that I think you you've looked - 14 looked at, and these are not 15 A. These are not it. 16 Q. -- not it. Okay. 17 Did you expect that the pipe coverers 18 that were tested in these particular studies 19 would have had more exposure than other workers? 20 21 22 23 24 25 1 21 MR. HOBSON: Objection. No foundation. .,A. The -- our -- our - MS. ABRAMS: i,ll Join in that objections 1 A. our expectation professional judgment I would have been that --Lfie people actually handling the insulation would have had the higher 3 exposures. 4 Q. All right. Let me ask you some -- a little bit of background questions to that. 6 Throughout your career, had you had the 7 occasion to observe workers in the field? 8 A. Many times. That was my job. 9 Q. All right. And how would you observe 10 them? I mean, what was your job related to II actual work going on in the plant? 12 A. Well, we -- we studied the workers and 13 their activities, so that we would be able to 14 assign lengths of time to the various sampling 15 that we did. 16 In other'words, if we sampled while they 17 were taking a sample, then we'd findout how many 18 samples they took per day and how long each 19 sample took because, ultimately, we were going to 20 come up with a time-weighted average exposure to 21 Chemical A, B or C, or whatever, for that man on 22 that job. 23 In other words, our judgments weren't 24 based on the -- on what was the material. Our 25 judgments were based on what was the material, 1 22 1 what was the level of exposure, how frequently did it happen and for how long. 3 Q. Okay. And to make these judgments, 4 you -- how did you set up this observation, I guess, to make this - 6 A. Well,, I just -- first, we had a safety 7 meeting and we explained to the people in that 8 plant, first, who we were and why we were there and what we were going to do. And the next thing 10 we did was to find out what materials were 11 present. This was what we used to call the 12 "inventory of materials." 13 And then, for each job, we -- we took 14 from that inventory of materials, the materials 15 that would be involved in that job, whatever it 16 might be. And then we simply went out, walked 17 around the plant with the man as he did his job, 18 and kept track of what he did, how long it took 19 him to do it and how often he did it. 20 We depended on what we observed, we 21 depended upon what he told us, and we depended 22 upon what the supervisor told us about each job, 23 and then we reconciled any differences. 24 As soon as we had that done, why then we 25 developed our sampling procedure so that we would 1 23 1 get numbers that we could use to arrive at a time-weighted average. 3 Q. And did you have an occasion, over the 4 years, to observe pipe coverers? 5 A. I, personally, not in great detail, but 6 I saw pipe coverers at work many times, because 7 they -- it's not uncommon to see a pipe 8 coverering crew in a -- in a chemical production plant. It's an ongoing job, in other words. 10 Q. All right. And did Roy DeGesero conduct 11 his studies using that technique when he did his 12 pipe coverers study? 13 A. He did it -- 14 MR. HOBSON: Objection 15 A. He did it 16 MR. HOBSON: Excuse me, sir. 17 THE WITNESS: Yes, sir. 18 MR. HOBSON: I need to object. 19 This man is not in a position to address that. 20 Lack of foundation. 21 MS. ABRAMS: We join. 22 -Q. (By Ms. Clark) Go ahead. 23 A. Well, philosophically and, actually, as 24 far as studying the jobs are concerned, he did it 25 in just the way I have described to you, taking 1 24 I into account the different kinds of pipe covering that were being used, because for pipe coverers, 3 the -- theirexposure was related totheir 4 craft. 5 In other words, they came on the job, 6 bought some covering with them, whatever kind 7 they needed, and put it on wherever it was 8 needed. 9 Q. All right. And did -- were you in a 10 position to observe the methodology that Roy II DeGesero used in his study? 12 A. I can't remember that I actually went on 13 site and observed him at thisparticular sampling 14 in this particular project, but that I did a 15 number of times with him, and others of our more 16 experienced people also had done the same thing. 17 Our procedure for breaking in a new man 18 was to have him work with a person who was 19 already there on a project like this. But he had 20 progressed by this time, in his experience with 21 us so that we didn't have a second industrial 22 hygienist with him. 23 Q. All right. You had certain procedures 24 in your department that you would follow to 25 determine the type of work the man did so -- for 1 25 I your study purposes? 2 A. Yes, we had forms that he had to fill 3 out. 4 Q. All right. So -- and you were in a 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 26 position to know what that procedure was? A. M-hlm. Q. In fact, did you establish that procedure yourself? A. Yes. Q. And so you knew that that was -- that was the procedure and that forms had to be filled out to - A. M-hlm. Q. -- to show that that procedure had been followed? A. M-hlm. Q. Is that correct? You'll need to say flyes" or "no," for the record, please. A. Yes. Q. Okay. Did you -- what was your opinion about whether -- about the type of -- I guess the extent of exposure that a pipe covererwould have, as opposed to other workers who were not pipe coverers? MS. ABRAMS: Object to the form of 1 the question as opinion. 2 A. To asbestos, you mean? 3 Q. (By Ms. Clark) Yes. 4 A. The exposures of the pipe coverers would have been greater than to others, in my 6 professional opinion. Now, this is based on I 7 don't know how many samples taken in people's a breathing zones and at distances from their breathing zone. 10 You have a pretty good feeling for how 11 much difference there is between right in a man's 12 breathing zone and -- and a few feet away. And 13 based on that kind of experience, we didn't feel 14 any need to sample others in the area. 15 Q. Because of your experience in -- in 16 doing the testing at various distances from the 17 breathing zone -- 18 A. That's right. 19 Q. -- of a pipe coverer? 20 A. In the past. 21 MS. ABRAMS: Excuse me 22 Objection. Leading. 23 And, Mr. Hoyle, if you would be so kind 24 as to wait until the questioner finishes the 25 question, in case some if us would like to 127 1 interpose objections, it would be very helpful. 2 THE WITNESS: I'll try. 3 MS. ABRAMS: Thank you. 4 THE WITNESS: I've been trying. 5 MS. ABRAMS: It's hard. 6 THE WITNESS: I'm used to 7 conversation rather than depositions. I'm sorry 8 about that. 9 Q. (By Ms. Clark) About -- oh, I'm going to 10 show you what has been marked now as Exhibit No. 11 7 by the court reporter. And this is what is 12 titled "Exposure to Fine Dust Encountered by 13 Workers Cutting Various Types of Pipe Covering 14 Material," and it's dated July 21st, 1965. And 15 that's Exhibit No. 7, and it's the ST number, 16 four zeros and 568. 17 I'm going to hand that to you. And do 18 you -- can you identify that exhibit, please? 19 A. This is a report of work done at the Dow 20 Corning Corporation, at their request. And it 21 reports the results of measurements made while 22 workers were handling pipe covering materials in 23 24 25 1 28 different ways. Q. All right. Can you -- excuse me. Can you tell us the reasonfor conducting this 1 particular study? 2 A. The reason, as I recall, was that the - 3 some of the members of the Dow Corning pipe 4 covering group, crew, what have you, had read in their -- either in the newspapers, or somewhere 6 else,, about asbestos,, that they'd read something 7 that had caused them to be concerned. 8 And so it was regular procedure in Dow, and it turns out in Dow Corning, that we would do 10 what we could to answer people's questions. And 11 these -- this work was done to answer questions 12 asked by the people in the covering crew, if I 13 remember right. I'm not sure I do remember 14 right. 15 Q. Okay. And I'll have to ask you, as we 16 go on, when that -- there's this little air 17 conditioner or compressor or motoror something 18 that comes on, and we'll have to ask you to keep 19 your voice up a little bit whenthat happens so 20 21 22 23 24 25 1 29 we can hear you. A. I'll try. -Q. This was signed by a gentleman named E. J. Schneider or "Sha-ny-der." Can you identify Mr. Schenider? A. Yes. I was the Dow Chemical Company's 1 first full-time industrial hygienist, and Ed Schneider was the second full-time industrial 3 hygienist. He joined me about six months after I 4 started in the Department. 5 Q. All right. And I noticed that there 6 are, on Page 2 and on Page 3, at the bottom of 7 the page, there are some footnotes. 8 A. M-hlm. 9 Q. And the footnotes are to -- the first 10 book is "Industrial Toxicology" by L. T. 11 Fairhall; is that correct? 12 A. That's right. 13 Q. What sort of a reference book is that? 14 A. Well, it was one of the early and pretty 15 good reference books available to us, and it was 16 written by Dr. Fairhall. 17 Q. All right. And then I noticed that, the 18 second page, there's a reference again to Frank 19 A. Patty. 20 A. That's the same book we talked about 21 this morning. 22 Q. And can you characterize what sort of 23 references these are, as far as quality or -- or 24 usefulness? 25 1 A. Well, they're good. They're - 1 30 I they're as far as they're being authoritarian is concerned, they're as good as was available at 3 the time - 4 Q. All right. 5 A. -- in my opinion. 6 Q. This -- can you tell us what the 7 conclusions were in thisstudy conducted by 8 Mr. Schenider and, I believe, checked by you? 9 A. Well, he found that if you were using a 10 table saw -- this is the first time we've II mentioned table saws', but this is a power saw - 12 that you could stir up dust in excess of 13 acceptable levels. 14 That's one -- the first of his 15 conclusions. And the total dust count, or the 16 number of particles per million cubic feet of air 17 would, therefore, exceed acceptable levels under 18 these circumstances. 19 20 21 22 23 24 25 1 31 Q. Let me stop you there and ask you a question. A. Yeah. Q. We've talked about limits, dust limits, and so forth. And when you say "total dust," what -- what do you mean by "total dust"? A. Well, I mean, if you take a dust sample I and simply look at it under a microscope, it's difficult, if not impossible, to tell the 3 difference between different kinds of dust. 4 In other words,, they're just little spots of light that are like a light that you can 6 see. And so you call it "total dust." 7 Now, what you can do is to take samples 8 in such a way as to get larger amounts which can be analyzed chemically, spectrographically, or 10 what have you, and then you can start to consider II the kinds of dust, kinds of materials that are 12 represented by that dust that you're looking at. 13 Q. Was there -- was this particular concept 14 about total dust, as opposed to asbestos, was 15 16 17 18 19 20 21 22 23 24 25 1 32 this taken into account here in this report? A. Let me see. I think it was. Yeah, they did characterize the dust, because this report is written after there started to be some understanding of the fact that asbestos was fibrous and that different length fibers with different diameters would be handled differently within ttae lung or respiratory system. And the third conclusion here was that the amount of asbestos fibers of significant 1 length found within the dust exceeds 25 percent of the fiber content. And what that means to me 3 is that 25 percent of the fibers that they could 4 find were within the area of concern, as far as fibers themselves goes. 6 Q. All right. 7 A. The rest of the fibers, really, are too 8 long or too short to be of concern. 9 Q. All right. 10 A. Then he goes on to say that "The 11 possibility that Dow Corning workers are being 12 exposed to excessive amounts of asbestos fibers 13 within the important fiber lengths" -- if I'd 14 have read -- I should have read a little 15 further. And then he says, 1120 to 50 microns," 16 which is the length of concern -- "is unlikely, 17 however, it is advisable and prudent to have 18 workers wear respiratory protection while cutting 19 pipe covering material. This isespecially true 20 when using a table saw.,, 21 Because it -- it puts just much more 22 material in a short period of time with a table 3 saw. 24 Q. Now, in the back of this exhibit 25 someplace, I'm going to show you there's an "ST" 1 33 1 number on it, and it's a "ST" with four zeros and a 578, and then there's a 579 and 580. 3 A. All right. 4 Q. Do you see that? Could you just - 5 A. These would be the pictures, here. 6 Q. All right. Can you just identify what 7 that is? 8 A. I can tell you what it is, yes. That's a photomicrograph taken of one of the samples. 10 Q. And what can you just say -- what is 11 it? 12 A. The long the long narrow ones are 13 fibrous in appearance and are -- might be 14 asbestos, based on the fact that there was 15 asbestos in the sample. 16 Now, there isn't enough -- there 17 is -- there is no information here that let's - 18 there's no scale information, so I can't tell you 19 how long those were that you're looking at, but 20 that's what you're looking at. And all these 21 other little pieces would have been counted as 22 dust, but are not fibrous. 23 Q. Do you know where these particular 24 studies were done? Where, like in what location 25 in the -- in the facility? 1 34 I A. Well, this -- this wlioie report, I think, reports work that was -- was not done 3 during the normal covering of materials in the 4 Dow Corning plant. This reports measurements made while people did specific operations. 6 Q. This was in -- in the first -- I notice 7 in the first paragraph, on the first page, it 8 says that this was a question raised by shop personnel. 10 A. Right. II Q. Do you know whether this was done in the 12 shop or outdoors, or can you tell? 13 A. It would have been done in the shop. 14 Q. So this particular study would have been 15 indoors? 16 A. It would have been in the shop. 17 MS. ABRAMS:objection. Leading. 18 And it calls forspeculation. Itlacks 19 foundation. - 20 Q. (By Ms. Clark) Do youhave any 21 independent 22 'A. it 23 Q. Let me -- let meask youa different 24 question. 25 A. Okay. 1 35 I 3 4 6 7 8 10 II 12 13 14 15 16 17 18 Q. Would you have any independent memory of the location, other than what's reported in the report itself? A. Yeaft, I have memory of the request coming in and my calling Ed Schneider in and asking him if he would go and take care of it. Q. No. I'm A. And I have memory of saying to him that they were thinking -- what their plan was, was to set up specific operations with pipe covering, rather than to try to make -- the reason I remember this is, is that this would have been of relatively short duration, because they set up all the different operations. The alternative would have been to go out and do a comprehensive industrial hygiene survey of Dow Corning's pipe covering crew, which we did not do. 19 Q. All right. It was about in -- in about 20 1970, I think that you have testified earlier 21 that the threshold limit values for asbestos was 22 lowered. 23 MS. ABRAMS: Objection. Leading. 24 A. Well, it went - 25 Q. (By Ms. Clark) I think you testified to 1 36 1 that, but correct me if I'm wrong. 2 A. It went from five to two sometime close 3 to 1970, possibly 169. And my memory isn't quite 4 good enough to say what year, but it was in a -- within a three-year -- three-year period. I 6 think I'm right. Like 169, 170 or 171. 7 Q. All right. Do you know why - 8 A. Now, that would be available, if anyone really wanted to know, because -- because the 10 threshold limit values committee, their records 11 would show that. 12 Q. All right. Do you know why the 13 threshold limit valuewas lowered? 14 MS. ABRAMS: Objection. Lacks 15 foundation. 16 A. Should I -- should I answer? 17 Q. (By Ms. Clark) Go ahead. 18 A. There had been, over a period of time in 19 the 160's, new information showing up and being 20 discussed in the -- in the toxicology area and in 21 the medical area concerning effects other than 22 asbestosis which migfit come from working with 23 asbestos. And the decision to lower the level 24 from five to two was related to that scientific 25 ferment that was goin(i ()n. 1 37 1 As the information was presented and further discussed and so on, there was a felt 3 need to lower -- to lower the levels of exposure, 4 as I understood it, not because of any concern for asbestosis, but for these other concerns. 6 Q. All right. I want to ask you a question 7 before we take a little -- we'll take our little 8 afternoon break in just a minute, but I wanted to ask you a question about scientific theories, I 10 guess, in general. Now I'm going back to when 11 you were a scientist and a teacher, and all of 12 that. 13 When you have a scientific hypothesis, 14 is that hypothesis generally acceptedwhenever 15 it's hypothesized? 16 MS. ABRAMS: Objection. 17 Q. (By Ms. Clark) Or can you explain - 18 maybe a better way: Can you explain how, I 19 guess, a theory or a hypothesis gets into 20 practical -- 21 A. Well -- 22 Q. -- literature? 23 MS. ABRAMS: Excuse me 24 A. Well, generally -- 25 MS. ABRAMS: Excuse me 1 38 1 MS. CLARK: Wait a second. 2 MS. ABRAMS: Objection. It lacks 3 foundation. It calls for speculation and it 4 calls for an expert opinion. 5 Q. (By Ms. Clark) Go ahead. You can 6 answer. 7 A. Well, what usually happens is that 8 experiences -- and these can be from all the way from case studies to carefully done animal 10 experiments -- are reported by the investigator, 11 whoever he may be. And they're usually reported 12 in form of papers at scientific meetings and - 13 and/or publications in scientific journals. And 14 before they get -- get great credence, someone 15 usually will reproduce the findings. 16 Once the findings have been reproduced, 17 this tends to give them more weight, so to speak, 18 as far as we're going to jump now to setting 19 threshold limit values. 20 In other words, the better the data, the 21 more likely they are to end up changing the - 22 the-guidelines. 23 MS. CLARK: All right. I think 24 this is a good point to take about a ten-minute 25 break, and we'll resume at 2:15. 1 39 1 THE VIDEOGRAPHER: The time is 2:03 p.m. 3 Off the record. 4 5 (Whereupon, after a brief recess, the 6 video deposition continued as follows:) 7 8 THE VIDEOGRAPHER: The time is 2:18 9 p.m. 10 On the record. 11 Q. (By Ms. Clark) Mr. Hoyle, before the 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 40 break, we were talking about, I guess, the fact that the threshold limit values had been lowered, or were going to be lowered, and that we had talked about scientific theories and evolution and so forth. Did you become aware, at some point, that asbestos exposure could be associated with other diseases, other than asbestosis? A. Yes. Q. And what -- about when did you become aware of that,, and what other conditions were you aware? A. Well, the other -- there were two things that -- that we started to hear about. First was I mesothelioma, which is a -- a rather -- a rather unusual tumor, as I understand it, that has been 3 associated withasbestos andwas reported. 4 The other thing was -- that I heard about was lung cancer as being a matter of 6 concern. Nowi I couldn't put a -- there's no 7 specific date that I can associate with the 8 appearance oftheseconcerns. What I remember is the developing concern among the health 10 professionals over a periodof time which II ultimately ended in a decision to change the 12 threshold limit values. 13 Q. What -- where were the first case 14 reports of mesothelioma from that you read about 15 or heard about? 16 A. Oh, I think it came from -- it seems to 17 me they were reported from South Africa, but I'm 18 not -- I'm not really sure whether it was South 19 Africa or England, at this moment. But it was 20 outside the U. S., as I recall. 21 Q. Did -- when did you become aware that 22 lung cancer could be associated with cigarette 23 smoking? 24 A. Not until about the time I retired was 25 it more or less totally accepted, as I remember. 141 1 Sometime in the early 170's, in other words. 2 Q. Was it -- do you have an approximate 3 A. I 4 Q. Go ahead. 5 A. Let me back up a minute. 6 As far as lung cancer associated with 7 cigarettes, period, of course, that came with the 8 Surgeon Generalls requirement, the date of which I don't remember, when they started to put labels 10 on cigarettes, and all that kind of stuff. 11 What I,do remember is the -- the report 12 was published prior to that which resulted in his 13 coming out with the requirement. 14 Q. And - 15 A. And I answered you in terms of cigarette 16 smoking as it relates to asbestos exposure, which 17 isn't what you asked, I think. 18 Q. No, it wasn't, but I will -- I will ask 19 that. 20 So you -- as I recall what you said, 21 then, you -- about the time of the Surgeon 22 Gen'eralls Report, or prior to that, you learned 23 about lung cancer and cigarette smoking. And 24 then did you learn about some connection between 25 asbestos and smoking and lung cancer? 14 2 1 A. Yeah. There came a time, in the '60's, when this had been reported. There had been - 3 there was -- there was some other investigation, 4 after its first being reported, which confirmed it.  Q. All right. Did you have an estimated 7 time when you learned of the mesothelioma? a A. It's fuzzy in my mind, but it was 9 A. Fuzziness becomes less and less fuzzy as 10 you get into the early 160's and when you go 11 toward the middle 160's. But if -- if I were to 12 ask myself, was it in the 150's, late 150's, or 13 was it in the 160's, my memory is not good enough 14 to tell me, right now. 15 Q. Okay. It was after - 16 A. I might have an opinion, but I wouldn't 17 have a memory of it. 18 Q. Okay. You had said it was after you had 19 heard a report either from -- reported cases from 20 South Africa or from England. Is that -- 21 MS. ABRAMS: Objection. 22 Q. (By Ms. Clark) -- your memory? 23 MS. ABRAMS: Objection. Leading. 24 A. Those were -- that's what I recalled for 25 1 43 1 Q. I was going to show you what's been marked as Exhibit No. 8, and this appears to 3 be -- I'll let you identify what it is, if you 4 can. 5 MS. CLARK: And this, ladies and 6 gentlemen in the background, this is, I believe, 7 three letters that are attached together that are 8 dated October 7th, 1968. 9 A. And the last one is October 31st. 10 Q. Okay. 11 MS. ABRAMS: Can you give us a 12 minute to examine this document? 13 MS. CLARK: All right. Why don't 14 we just go off the record just a second. We 15 could take a -- we'll not take a break, 16 literally, but just break from the video. 17 THE VIDEOGRAPHER: The time is 18 2:24 p.m. 19 Off the record. 20 21 (Whereupon, after a brief recess, the 22 video deposition continued as follows:) 23 MS. CLARK: Are we back on? 24 THE VIDEOGRAPHER: The time is 25 2 :26 p.m. 1 44 1 On the record. 2 Q. (By Ms. Clark) Before we -- we move on 3 to this exhibit that I just handed you, Exhibit 4 No. 8, I had asked you the question about mesothelioma, and you had indicated that you had 6 heard of some cases, and that you were not -- not 7 real sure about when that was, but do you know 8 what type of exposures or type of workers were reported in those cases? 10 MS. ABRAMS: Objection. Compound. 11 A. The -- in those cases, now that I - 12 there was a study, but I think it was not the 13 mesothelioma cases that were reported in that 14 study, although they were reported there, too, 15 perhaps, which involved shipyard use of asbestos 16 lighting in the engine rooms of ships. And 17 that's the one that I remember something about, 18 as far as what kind of exposures did they have. 19 I'm a little blank on the rest of it. 20 Q. All right. And it was your 21 understanding -- can you compare the type of 22 exposure that you understood to be in that report 23 to the type of exposures that you were monitoring 24 at Dow? 25 A. As -- as described, the exposures that 1 45 I happened in the engine rooms of ships during World War II were gross compared with those which 3 we encountered by pipefitters in Dow Chemical 4 Company plant -- plants that I know about. 5 Q. All right. Thank you. Let's move on to 6 this Exhibit No. 8. 7 Can you identify this correspondence, 8 Mr. Hoyle? 9 A. Yes. There are three letters here, one 10 sent to me by Bob Middleton,, Safety Director at II Ludington, Michigan; one written by me to a man 12 in the Safety Department at Midland, asking him 13 to answer part of the questions; and another one 14 written by me to Bob to answer the questions that 15 I had referred to the Safety Department. 16 Q. All right. What was the question asked, 17 and what was the -- basically, what was the 18 response given? 19 A. Well, he asked what are -- what are they 20 doing in the Midland -- what are the pipe 21 coverers in Midland doing. And that's the part 22 that I -- that I referred to the Midland Safety 23 Department. And then I replied to him concerning 24 hazards due to the handling of materials 25 containing asbestos. 1 46 I And what I told him, to paraphrase it, was that there's a discrete disease associated 3 with asbestos which is called "asbestosis." I 4 told him that it was quite similar to silicosis, which is caused by crystalline quartz, and - 6 Q. Go ahead and read that, if you want to. 7 A. "In more or less recent past the subject 8 of average or good asbestos has been further complicated by reports in the literature of. 10 malignant growths which were associated with the II presence of asbestos bodies. The whole subject 12 is presently under study by the U. S. Public 13 Health Service." 14 Then I told him that I feel at this 15 point "...our best bet is to control the asbestos 16 dust exposures according to the Threshold Limit 17 Values suggested by the American Conference of 18 Governmental Industrial Hygienists. This 19 Threshold Limit Value is five million particles 20 per cubic foot of air. We have done some dust 21 sampling during a variety of operations carried 22 out-by pipe coverers. I'll include a summary of 23 this work for your information. You will see 24 that there are some jobs where the numbers of 25 particles in the air are above five million 147 1 particles per cubic foot mentioned here. Jobs such as this would be done using industrial 3 respirator which is approved by -@he U. S. Bureau 4 of Mines for protection against toxic dusts, including silica. 6 "Another approach to the dust hazard is 7 to contrive better control of the dust so that 8 the measurements will show less than five million particles and there will, therefore, be no need 10 for respiratory protection. Generally, this is 11 the best -- is best accomplished by the use of 12 exhaust ventilation at the point where the dust 13 is being generated.,, 14 Q. And does this -- Mr. Hoyle, would that 15 represent, fairly, your opinion as of October 16 31st, 1968? 17 A. I would -- it's -- it's signed by me. 18 My answer to you is a - 19 MS. ABRAMS: Objection. 20 A. -- yes. 21 MS. ABRAMS: It calls for opinion 22 testimony. 23 Q. (By Ms. Clark) All right. 24 A. Because I composed the letter and signed 25 it. 1 48 1 Q. All right. Mr. Hoyle, were you aware at any time that there was any monitoring or 3 following done of pipe coverers by the medical 4 Department at Dow? 5 A. There was a regular program of chest 6 X-rays that was carried on, and also a -- a vital 7 capacity testing with a spirometer in the Medical 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 49 Department. And the pipe coverers were included in that program for a period of time. And the findings were all negative, and the decision was made by the Medical Department to discontinue them on the program after a period of time. Q. Why did they decide to discontinue them on a program? A. Just because they were finding entirely normal findings, and even though X-rays of the chest aren't going to give rise to -- to serious overexposure to radiation, a good practice is that you don't expose people to radiation unnecessarily. Q. During your years at Dow, were you ever awake of any case of an asbestos-related disease reported in any Dow employee? A. No. Q. I wanted to just point out one thing. I In -- in Hoyi-e Exhibit No. 5, there is a comment on the first page that sayst "The present 3 Threshold Limit Value (TLV) for asbestos of 5 4 million particles will remain in force until 1971." 6 It -- you -- do you have any information 7 any different about when that threshold limit 8 value might have been changed, as far as the actual date? 10 A. I don't really know when it happened, II but there was a warning given out by the TLV 12 Committee that they expected to change it in 13 1971, and that's the basis for thatstatement. 14 Q. Okay. 15 A. Whether they -- whether they did it at a 16 different date, for some reason, I don't know. 17 Q. All right. So you don't have any 18 independent -- 19 A. No. That's the -- 20 Q. knowledge -- 21 A. best information I have. 22 -Q. Okay. And when -- whenever the 23 committee changed it is when they changed it? 24 A. That's when they changed it, that's 2 5 right. 1 50 1 Q - Okay. 2 A. It was -- it was the policy of that 3 committee -4 Q, Mr. Hoyle -5 A. If I may? 6 Q. All right. Go ahead. 7 A. It was policy of that committee to give 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 51 advanced warning of change so that people could make their comments, if they wanted to. Q. Okay. Do you have an opinion, Mr. Hoyle, based on your experience, your training and your knowledge as an industrial hygienist, whether a pipe coverer who worked in a plant setting, applying insulation, some of which contained asbestos, had exposure levels within the five million particles TLV level? MS. ABRAMS: Objection. It calls for opinion testimony. Are you done? Were you finished with your question? MS. CLARK: Yes. MS. ABRAMS: It calls for opinion testimony. It lacks foundation and calls for speculation, and it's vague and ambiguous. Q. (By Ms. Clark) Do you have - 1 A. Based on our own data, as reported in the DeGesero reports, the answer is that we did 3 not have exposures ona time-weighted basis above 4 five million particlesper cubic foot. 5 Q. Okay. And could you briefly tell the 6 jury what a time-weighted average means when you 7 refer to that term? 8 A. Yes. The exposures in the work environment are not uniform. They tend to go up 10 and down, depending on particular tasks that are 11 being done by the people at work. And the 12 time-weighted average concept says that for the 13 time where you might have a peak above the 14 number, you can take credit for the time when you 15 have a peak or a depression below the number. 16 In other words, you're allowed to 17 average it out. That's what time-weighted means. 18 Q. All right. And -- and that was -- that 19 was a process that was used in -- was used in 20 reasonable and responsible industrial hygiene 21 practice? 22 MS. ABRAMS: Objection. It calls 23 for an expert opinion. 24 A. That was the way that industrial hygiene 25 was the way these ntinibers were used by 1 52 1 industrial hygienists. 2 Q. Okay. 3 A. These numbers being threshold limit 4 values. 5 Q. And do you have an opinion, Mr. Hoyle, 6 based on your knowledge and experience and 7 training as an industrial hygienist, whether a 8 pipefitter -- and I'm talking about a pipefitter as opposed to a pipe coverer, now -- a pipefitter 10 or similar craftsman working in a plant setting, 11 had exposures to asbestos under the threshold 12 limit values of five million particles? 13 MS. ABRAMS: Objection. It's vague 14 and ambiguous. It lacks foundation. It calls 15 for speculation, and it calls for an expert 16 opinion beyond the expertiseof this witness. 17 Q. (By Ms. Clark) Do you have such an 18 opinion? 19 A. My -- my -- my expert opinion as a 20 certified industrial hygienist is that the 21 expo sures of people, other than the insulators 22 themselves, would not have exceeded the 23 guidelines in effect. 24 Q. And what do you base -- on what do you 25 base that opinion? 1 53 1 MS. ABRAMS: The same objection. 2 A. I base this on a publication of an 3 epidemiology study done at the Dow Chemical 4 Company which compared the state of the health of Dow pipe coverers to Dow pipefitters to control 6 groups. 7 Pipefitters were the same as the 8 controls. The pipe coverers showed an increased incidence of lung cancer for those who were 10 smokers, as well as pipe coverers. It showed 11 that the pipe coverers who didn't smoke were the 12 same as other smokers. And there was a factor of 13 eight or ten, or something like that, greater 14 likelihood of lung cancer for people who were 15 smokers and pipe coverers than there would have 16 been if they had just been smokers. 17 Q. All right. Approximately when was this 18 study done? 19 A. From the early 170's. 20 Q. All right. And at this time, it's - 21 well, it's almost twenty until 3:00, or so. 22 Mr. -Hoyle, I appreciate your -- your attention 23 this afternoon. 24 MS. CLARK: And I pass the 25 witness. 1 54 I Why don't we go off the record for just a second and talk about the scheduling just a 3 little bit? 4 THE VIDEOGRAPHER: The time is 2:39 p.m. 6 Off the record. 7 8 (Whereupon, there was a discussion held off the record, after which the proceedings continued 10 on the stenographic record as follows:) II 12 MS. CLARK: Gerry, if we might, 13 everybody here, or at least we are in agreement 14 that questions that aredealing with cancer 15 testimony would be used only in cases where that 16 17 18 19 20 21 22 23 24 25 1 55 issue can be -- that is, tried with the rest of the issues in the case. There are some jurisdictions, apparently, where both cases are segmented out. Their asbestosis cases are tried separately from cancer cases, and that there wouldn't be any disagreement with using testimony only relevant to certain cases in those jurisdictions where that is appropriate. mS. ABRAMS: What are you -- are I you requesting that -- I'm not sure what your statement is. 3 MR. HOOD: Well, we don't want to 4 have to have to object everytime the word "cancer" is mentioned if it's irrelevant in a 6 given case. 7 MR. BEZET: Well, aren't you 8 operating under a stipulation that all objections are reserved except as to the form of the 10 question and responsiveness of the answer? II Relevancy is preserved. 12 That covers it, doesn't it? 13 14 (Whereupon, there was a discussion held off 15 the record, after which the proceedings continued 16 as follows:) 17 18 MR. HOOD: My name is Bobby Hood, 19 and it's my understanding that Plaintiff counsel 20 and the defense counsel understand that the 21 questioning of this witness, whether a reference 22 is m-ade to cancer or malignancy or tumors is only 23 to be used when this deposition is shown to a 24 jury in a case where such references are relevant 25 and admissible in that particular case. 1 56 I Does anyone disagree with that? MR. BEZET: I am. MS. ABRAMS: Yes, I do, too. MR. COVERT: I do, too. MR. HOOD: Now, if you do disagree, 6 does that mean that you want us, everytime you 7 mention the word "cancer," to interrupt you and 8 object because 9 MR. COVERT: No. Just make a 10 general objection in the Louisiana cases. That's II all I'm concerned with. 12 MS. HOOD: Will this objection, 13 then, be sufficient to run throughout any 14 questions by any Plaintiff counsel,so it doesn't 15 have to be repeated each time theword "cancer" 16 is mentioned? 17 MR. COVERT: Speaking for myself, 18 yes. 19 MR. HOOD: How about any other 20 21 22 23 24 25 1 57 Plaintiffs, counsel? MS. ABRAMS: That's fine with me. MR. HAINKEL: I'm going to join in the objection for the Louisiana cases, too, with reference to cancer. THE VIDEOCRAPHER: The time is 2:43 p.m. On the record. 2 3 EXAMINATION 4 QUESTIONS BY MR.COVERT: 5 6 Q. Mr. Hoyle, my name is Gerry Covert, and 7 I'm here primarily inquiring about the Dow 8 Plaquemine facility, and I think you mentioned that once, in passing. 10 Were you, sir, in industrial hygiene 11 when the Dow Plaquemine plant was built? 12 A. Yes. 13 Q. And do you recall the time stage on 14 that, Mr. Hoyle? 15 A. Not exactly,because I answered you 16 quite positively because I was in industrial 17 hygiene and had some contact with the Texas 18 division during the planning of the Louisiana 19 Division, but I just can't remember what year the 20 Louisiana Division took off. 21 Q. Well, as I told someone, I did 22 abstracting in law school when they were building 23 that, so it was in the 1950's. Does that sound 24 about right? 25 A. All right, I'll agree. 1 58 I Q. All right. I was interested -- you said you had something to do with the planning of the 3 Plaquemine facility. What did you mean by that, 4 Mr. Hoyle? 5 A. Well, I had -- there was an opportunity 6 for industrial hygiene input through the 7 engineering stages of various Dow plants. And it 8 was in that context that I made the comment. And my function would have been to furnish 10 information to the engineers, so that they could II plan a facility that would make it possible to 12 operate the plant in a work environment that was 13 healthful. 14 Q. I see. Did you actually consult with 15 the engineers relative to your knowledge of 16 asbestosis? 17 A. No. 18 Q. You did not? 19 A. I did not. 20 Q. All right. Is there any reason? Were 21 you not called upon to - 22 -A. Asbestos was -- I was not called upon, 23 and I think the reason was that asbestos related 24 to specific trades, and the -- I would have been 25 most likely to have been consulted or asked for 1 59 1 information concerning the control of chemicals from process and within process, because the 3 tradesmen -- we -- would have been handled as 4 special cases by Maintenance Engineering involved in any Dow use of asbestos at Plaquemine. 6 THE VIDEOGRAPHER: Excuse me, 7 Mr. Hoyle. Your microphone is slipping off. 8 THE WITNESS: Oh, dear. 9 THE VIDEOGRAPHER: The time is 10 2 :47 p.m. 11 Off the record. 12 THE VIDEOGRAPHER: The time is 13 14 15 16 17 18 19 20 21 22 23 24 25 1 60 2:47 p.m. On the record. Q. (By Mr. Covert) Mr. Hoyle, let me back up just a little bit. When you went to work for Dow in 1941 or 1942, were you aware that asbestos insulation was used in the Dow facility? A. I became aware of it very soon after, but not in the context of industrial hygiene - Q. Okay. A. -- because my job, at that time, had absolutelynothing to do with industrial hygiene. Q. Fine. About when did you become aware I of the usageof asbestos-containinginsulation at Dow? A. In 1941, because I was a pipe shop 4 estimator at that time, and I estimated pipe covering work. 6 Q. All right. And at that time, the pipe 7 covering did contain asbestos for the hot 8 insulation? 9 A. The hottest insulation used asbestos. 10 Q. Was there any difference in the type hot II insulation used at Midland, as opposed to 12 Plaquemine, if youknow? 13 A. I don't think so -- 14 Q. So to -- 15 A. -- but I don't know for sure. 16 Q. To your knowledge, when the Dow plant 17 was built, the hot insulation did contain 18 asbestos, as far as you know? 19 A. Yes, as far as I know, on hot 20 applications, asbestos was used at Dow 21 installations until the late '60's or 22 early '70's. 23 Q. And do I understand you from the 24 previous question that I asked, that although you 25 had had knowledge since 1948, approximately - 1 61 1 A M-hlm. 2 Q. -- that asbestos could cause asbestosis, 3 you were not called upon or were not asked about 4 the usage of asbestos in the construction of the Plaquemine plant? 6 A. I furnished information to the Safety 7 Department, who did have an interest in the 8 insulators, the pipe coverers, from the safety point of view. And we resourced people to them 10 in -- in determining safe operation for pipe 11 coverers. 12 Q. I'm speaking not only of pipe coverers 13 in the plant, but during the initial construction 14 of the Plaquemine plant, too, Mr. Hoyle. 15 MS. CLARK: Let me object. It's 16 not really an objection, but I believe that there 17 are a number of different parts of the plant. 18 It's a -- you know, the facility has several 19 different buildings, and they were built at 20 different times. So that might be unclear as far 21 as when these were all applied. 22 Q. (By Mr. Covert) If -- if my question 23 confuses you, Mr. Hoyle, be sure to stop me, but 24 I'm concerning myself - 25 A. Tell me -- wotild you repeat it, please. 1 62 1 I'm sorry. I lost my train of thought. 2 Q. Me, too. Concerning ourself - 3 MR. COVERT: Well, you'd better 4 read the question back to me. 5 6 (Whereupon, the requested testimony was 7 read back by the court reporter.) 9 Q. (By Mr. Covert) Were you, likewise, 10 concerned with their safety, as an industrial 11 hygienist? 12 A. The -- early on, and I think that's 13 early on, maybe the late end of early on, the 14 relationship with contractorsin Dow facilities 15 was that they were independent operators. They 16 had their own safety programs, and the people who 17 applied different trades were expected to know 18 how to take care of themselves, as far as their 19 own trade is concerned. 20 And on that basis, early on, I can't be 21 sure that any information that I had, as an 22 industrial hygienist, whether it got to them or 23 not, I'm not sure. If it did, it got through the 24 Safety Department, who at some point in time, in 25 Midland, I can't speak for Plaquemine, but at 1 63 I some time point in time in Midland, in the 160's, the company started to be more 3 aggressive concerning the safety behavior of 4 contractors on site. 5 But their contracting was mostly done by 6 Austin Company, and this is a big company. And 7 I'm not sure that we would have been welcome if 8 we had tried to tell them to fit pipe and put on covering. 10 Q. Okay. II A. And I think they actually went out and 12 bought the covering and brought it on site, 13 probably, because I do know that Austin Company 14 had their own Purchasing Department. 15 Q. But the -- the insulation that they 16 would supply to Plaquemine would have been 17 according to Dow specifications? 18 A. Been according to Dow specs, that's 19 right. 20 Q. Now, there are two things that I'm not 21 sure of and I wish you would help me clarify. 22 You answered many questions about plant 23 environment, as to the pipe coverers in the plant 24 environment at Dow. 25 A. M-hlm. 1 64 1 Q. What did you mean by that, Mr. Hoyle? 2 A. Well, the plant environment is the -- is 3 when a pipe coverer would be applying his trade 4 in an operating plant, as opposed to applying his trade in a -- under new construction. 6 Under new construction, then, by my 7 definition, that's not aplant environment. 8 Q. What -- what would "new construction,, imply to you, as an industrial hygienist? 10 A. Oh, a brand-new plant. 11 Q. Would in your opinion, the exposures to 12 asbestos dust be greater under the circumstances 13 of new construction? 14 A. I don't - 15 MS. ABRAMS: objection. It calls 16 for an expert opinion. 17 A. -- know why it would be, but it would be 18 related to the -- to applying the trade of pipe 19 coverer. And whether you put pipe covering on a 20 pipe in a plant where there's no chemical 21 operation, or whether you're putting pipe 22 cove-ring on a piece of pipe in a plant that's 23 operating, I don't see why it would make any 24 difference, as far as the -- the pipe coverer is 25 concerned, as far as his exposure to the contents 1 65 1 of the covering that he's using. 2 Q. Would any time -- would time make any 3 difference in the utilization or exposure to that 4 asbestos insulation 5 A. I don't quite understand your question. 6 Q. Well, you said in the plant environment 7 someone would be using it part-time, and you 8 didn't see any difference in new construction, in which I assume there would be a great deal of 10 applying insulation with the hot pipes - 11 A. To the extent that they might have made 12 an assembly-line operation on a new construction, 13 there could have been a difference. I'm not 14 aware that they did that, but I can -- if you 15 were to organize yourself so that one man did 16 nothing but cut pieces of pipe covering, that 17 would not be what I was talking about. 18 Q. I see. 19 A. Do I -- do I make myself plain? 20 Q. I think you do. I think you do. 21 A. Okay. 22 Q. The other thing, I'm having a hard time 23 quantifying five million particles per cubic 24 foot. Can you see the material -- the dust in 25 this amount of vapor or mist? 1 66 I A. You can -- you cannot see the respirable dust, because it's too small. The techniques 3 that are used for sampling actually are developed 4 in such a way that you -- that what you get in your sample is respirable dust. 6 Q. So someone working with insulation which 7 contained asbestos could conceivably be breathing 8 these sort of particles without knowing it; is that correct? 10 A. It's highly unlikely, because usually II the respirable dust would be associated with the 12 bigger particles, which you can see. 13 Q. Okay. How about someone -- well, strike 14 that question. 15 Did there ever come a time, Mr. Hoyle, 16 where Dow started looking for alternative 17 products to take the place of asbestos in the 18 plants? 19 A. Yes, sir. 20 Q. And about when did that come about? 21 A. That was in the late 160'sl and it was 22 associated with the time that I was -- that I 23 testified to when the threshold limit value was 24 at five, and it was proposed to reduce it to two. 25 Q. And - 1 67 I A. And at that point, we first had to find out whether the new number -- what effect that 3 would have on our operations. And that was the 4 basis for the DeGesero study that we talked about at length this - 6 Q. What do you mean, what effect it would 7 have on your operation? 8 A. Well, if we were -- if we needed to know what the exposures were, and with fair accuracy, 10 and up until that point, we had been satisfied II that we were below five million particles, but we 12 hadn't done an in-depth study to know exactly 13 where we were. We knew we were below, but we 14 didn't knowjust where below. 15 So the question then is, if we -- if we 16 have a new number to work with, will that affect 17 our safe practices. And so that's why we did the 18 in-depth study, which told us where we were, and 19 we found we were, indeed, above two million 20 particles, and that prompted us to go ahead and 21 look for alternative materials, which you just 22 askb'd about. 23 Q. Well, what alternative materials did you 24 look at, Mr. Hoyle? 25 A. I wasn't involved in the looking at 1 68 1 alternative materials. That was done by the Maintenance Engineering Group. And so they 3 searched the marketplace and finally found 4 materials that could be used for high temperature, most high temperature installations 6 that had no asbestos. 7 But I wasn't involved in that enough to 8 even know what the -- I just knew there was no asbestos and had little interest in it beyond 10 that point, because it was no longer an 11 industrial hygiene problem. 12 Q. I see. Were you with Dow when what's 13 known as "Asbestos Abatement Programs" began, 14 Mr. Hoyle? 15 A. That's about the time I left. 16 Q. I see. 17 A. And the kind of thing -- may I ask you a 18 question now? 19 Q. Sure. 20 MS. CLARK: Mr. Hoyle, you really 21 need to answer his questions, because he's not 22 under oath, and if he answers - 23 THE WITNESS: Yeah, okay. I'm 24 curious as to what his terminology meant. Maybe 25 I should say, "Would you restate your question?" 1 69 1 MS. CLARK: That's right. 2 MR. COVERT: He's trying to help 3 me. 4 Okay. Could you read it back to him? 5 THE WITNESS: Okay. 6 7 (Whereupon, the requested testimony was 8 read back by the court reporter.) 9 10 Q. (By Mr. Covert) And I think you answered 11 that that's about when you were leaving. 12 A. I think so. 13 Q. Okay. And -- and what, if you know, 14 Mr. Hoyle, was the purpose of replacing this 15 asbestos? 16 A. I beg your pardon? 17 Q. What was the purpose of this asbestos 18 abatement program, if you know? 19 MS. CLARK: Again, answer if you 20 know. 21 MR. HOBSON: Well, "if you know," 22 means if you know. 23 THE COURT REPORTER: Who said that? 24 MR. HOBSON: He said that. 25 THE COURT REPORTER: Okay. 1 70 1 MR. HOBSON: Okay. 2 A. I wasn't involved in detail in 3 describing the so-called abatement program. 4 Q. (By Mr. Covert) Well, let me ask -vou this, Mr. Hoyle: Did a time ever come, in your 6 employment with Dow as an industrial hygienist, 7 when you felt that the use of asbestos was too 8 dangerous to the individuals involved or exposed? 9 A. No. 10 Q. It never did? 11 A. No. The -- when you say "too dangerous" 12 to me, I have to answer you that way, because any 13 material can be handled without its being too 14 dangerous, with the proper precautions. 15 If you'd have -- if your question had 16 gone beyond that point, I might have answered it 17 differently. 18 Q. Well, let's go back not that far. 19 If you could, when -- whether two 20 parts -- two million parts per cubic foot became 21 too dangerous for the utilization of the new 22 employees - 23 A. No,, that didn't make it too dangerous. 24 That simply required that you take different 25 precautions. 1 71 1 Q. And those precautions were "stay below that." What else? 3 A. Not necessarily to stay below that, as 4 far as measurements are concerned, but you would have been required more in the way of personal 6 protection as a -- as a program, with that 7 number, than you would have with five. 8 Q. Would you, as an industrial hygienist at the present time, or at the time you left Dow, 10 Mr. Hoyle, recommended the use of insulation 11 containing asbestos? 12 A. If there were -- I -- I could have 13 recommended its use if it were the -- the 14 material of choice, and then I could have 15 recommended precautions that would make it safe. 16 Q. And, again, if you could tell me those 17 precautions. 18 A. They would have been use of personal 19 protective devices, either that or the use of 20 local ventilation duringparticular operations, 21 or soaking the material. I think I'm describing 22 abatement to you. 23 Q. All right. And one more thing. You've 24 got to put up with me. we spoke a great deal 25 about the the floor tile at Dow, and I 1 72 1 understand 2 A. I didn't get your word. 3 Q. The floor tile, the test - 4 A. Oh, the floor tile, yeah. Okay. 5 Q. And I think you -- did I -- did I 6 understand you correctly, sir, that Dow sold the 7 materials which went into making up this floor 8 tile? 9 A. I'm not sure whether our Coatings 10 Technical Service group were successful or not. 11 I can tell you that I know that they were 12 experimenting with various formulations, which 13 hopefully would have developed a market for Dow 14 resins in the floor tile business. 15 Q. Mr. Hoyle, where would I go to try to 16 find out if Dow did ever sell the resins which 17 contained asbestos to other parties? 18 A. Dow never sold asbestos -- any resins 19 containing asbestos. If the asbestos ever got 20 into a floor tile formulation with a Dow resin, 21 it was done by the floor tile company. We - 22 there was no attempt made to develop a product 23 containing asbestos. 24 See, they were trying to break into a 25 into a business that used a different resin, and 17 3 so the formulation would need to be different to accommodate the new resin. And the only reason 3 the asbestos was there is that that was the way 4 floor tile was made. 5 Q. okay. 6 A. Do you see what I'm saying? 7 Q. Yes, sir. I think I understand. 8 A. okay. 9 Q. Mr. Hoyle, some of my clients have 10 spoken of turnaround operations at Dow. Are you 11 familiar with the term? 12 A. Oh, I know what a turnaround is. This 13 is when you shut down for maintenance. 14 Q. Okay. And would you say, sir, that 15 that's different than the factory environment 16 that we previously discussed? 17 MR. HAINKEL: I object to the form 18 of the question. 19 A. It's different in that the whole plant 20 is shut down. Nothing happens there except 21 maintenance during the turnaround. 22 It's not too different than maintenance 23 done in an operating plant, so far as the 24 tradesmen are concerned, as I can see, as far as 25 any exposures related to their trade. But it 1 74 1 would be different in terms of the opportunity they might have for exposure to a chemical in 3 process. 4 Our -- generally, maintenance work, before the maintenance people are asked to do it, 6 the equipment is freed of any chemicals. If you 7 have a turnaround, that becomes simpler, because 8 you just simply remove all the chemicals from the 9 site. 10 Q. Let's -- let's confine it, if we could, 11 to the insulation -- 12 A. Okay. 13 Q. -- relating to turnarounds. Would that 14 make any difference, in your opinion? 15 A. Well, I don't -- I don't think, unless 16 we were to get back to some kind of mass 17 production techniques, that would,be associated 18 with it, and then I'm unaware that it was done, 19 because I -- 20 Q. Assuming -21 A. -- I'm simply unaware. 22 -Q. Right. Assuming, Mr. Hoyle, that my 23 clients would say, that during turnaround 24 operations at Dow, the removal of hot insulation 25 resulted in work conditions where it was kind of 1 75 I like snow falling on them, and this assume -- presumably contained 3 A. over how long a period of time would 4 5 6 7 8 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 76 this have happened? Q. Well, say for several weeks. A. I would - I would be suspicious of their observations. Q. All right. Well, for several days, let's put it into that time frame. A. Well, if you had said MR. HAINKEL: I object to the form. Was that a question, Gerry, or , MR. COVERT: I confined it converted it to several days from several weeks, to see where we're going. MR. HAINKEL: I object to the form of the question. Q. (By Mr. Covert) If you can, answer that, if you would, please. MR. BEZET: Well, what was the question? -A. I can answer it this way, and this is based on my casual observations over the years. It might be possible, that for a very short period of time, there might be a case where 1 a fairly large piece of insulation would just come apart, you know. And that, I wouldn't be 3 surprised at. I don't think it would last for 4 very long. It would settle to the ground and they'd sweep it up and take it away. Now, that's 6 what I'm envisioning. 7 Now, the idea that it was snowing 8 asbestos, I haven't been -- I've been around turnarounds, and I've never seen it snowing 10 asbestos. 11 Q. (By Mr. Covert) Okay. Would that, to 12 you, as an industrial hygienist, mean exposure 13 greater than the five parts per million per cubic 1 4foot? 15 A. There would be -- it would be difficult 16 for me to say "yes" or "no," because what you're 17 seeing are big pieces falling down, and the 18 amount of respirable dust would relate to how 19 friable that material was at the time. 20 Q. And the respirable dust, Mr. Hoyle, does 21 it disintegrate, or does it remain on site after 22 it's cut? 23 A. The respirable dust? 24 Q. Yes, sir. 25 A. It -- respirable dust is pretty small, 1 77 1 and it floats for a long time in the air. And the wind comes along and blows it away and -- and 3 disperses it. So it wouldn't be around the site 4 for any length of time, I don't think. 5 Q. So it could, in this -- is it your 6 opinion that this wind, et cetera, could stirup 7 a respirable dust causing further exposure to 8 people who work -- 9 MR. HAINKEL: I object to the form 10 of the question. I don't think that's his 11 testimony. 12 A. The -- I think your inference was that 13 they would be exposed to high concentrations. 14 And the sampling that I've done in my life would 15 tell me that that the answer would be known or 16 probably known, because when the wind blows in an 17 outdoor operation, the dilution factor is 18 tremendous. 19 Q. In your studies, Mr. Hoyle, what is the 20 exposure -- is the exposure required to contract 21 mesothelioma? 22 A. I haven't the -- I haven't the least 23 idea. I don't think any one of us knows. 24 Q. So you don't know the exposure to cause 25 mesothelioma? 1 78 I A. The -- now, let me qualify by saying that I've been spending my time doing other 3 things involving the literature for the past 14 4 years, but as I know it, at the time that I stopped having regular contact with the 6 literature, there was no quantitative 7 relationship between levels of exposure and 8 mesothelioma. There was even a question as to whether mesothelioma had anything to do with 10 asbestos most of the time that I was an II industrial hygienist. 12 Q. That was the time that you left Dow, 13 that was the consensus; is that your testimony? 14 A. At that time the consensus may have been 15 changing a little bit, but there was question as 16 to -- early on, there was question as to whether 17 or not those reported cases were caused by 18 asbestos. I am unaware of any studies that 19 related mesothelioma to levels of exposure. 20 That's just not to say that there were none, but 21 to say that I'm unaware of any. 22 Q. I'm reviewing my notes, and I just want 23 to clarify one more point. 24 Did I understand you correctly that you 25 stated, in the 160's., that new information from 1 79 I toxicology revealed diseases from working with asbestos -- asbestos, including mesothelioma, 3 came to light? 4 MR. HAINKEL: Object to the form of the question. 6 A. I think that I recognized the fact that 7 in the literature and in the health sciences 8 area, this question was being raised. 9 Q. Did you accept it, sir, as the rules 10 that you wish to promulgate at Dow? II A. We -- because asbestos was a very small 12 part of our industrial hygiene concern, very 13 small, we couldn't justify doing any 14 toxicological investigation of a material which 15 was made by someone else and sold to us for use 16 in a specific trade. 17 And so I did not ever become involved in 18 trying to judge what the number should be. 19 Rather, I accepted the number as it was and went 20 ahead with industrial hygiene accordingly. 21 That's the way I have to answer your 22 question. 23 Q. Sure. And I guess it goes back to your 24 relying on the literature at that time; is that 25 correct? 1 80 1 A. Well, we relied on -- on what was common knowledge. Another way to say it is literature. 3 It goes beyond that. It's spoken word, too, 4 but -,- spoken literature. 5 Q. Okay. Mr. Hoyle, let me ask you one 6 more question for some of the other Louisiana 7 lawyers that are here: Are you familiar with the 8 products, the manufacturers of the insulation, asbestos-containing insulation products at Dow in 10 Plaquemine, the brands? 11 A. The brands? 12 Q. Yes, sir. 13 A. No. 14 MR. COVERT: Excuse me just a 15 second. 16 That's all I have. 17 THE WITNESS: Okay. 18 19 20 21 22 23 24 25 1 81 MS. CLARK: Thank you, Mr. Covert. And I believe, at this time, we'll stop for today, and we'll start again in the morning. Is 9:30 a satisfactory time with everybody, for scheduling? Herschel, are you going to go next? MR. HOBSON: I don't know. MS. CLARK: Is that satisfactory 1 with you all? 2 Okay. Thank you very much. 3 THE VIDEOGRAPHER: The time is 4 3:12 p.m., and we're off the record. 5 6 (Whereupon, the video deposition of 7 Mr. Harold Robert Hoyle was recessed for the day, 8 to be reconvened on the 19th day of February, 1991, at 9:30 a.m.) 10 11 12 13 14 15 16 17 18 1 21 199, 9 0 2 3 4 5 arloRT @Wr 'ID8 co INC. Heritage Plaza 1111 Bagby, Suite 2500 February 23, 1991 Texas 77002 Fax: (713) 654-1888 Houston, Tel: (7 13) 65 1-1 100 HAND DELIWRED Petroleum Tower 550 Fannin, Suite 1125 Ms. Sandra F. Clark Beaumont, Texas 77701 MEHAFFY & WEBER Fax: (409) 833-0793 2615 Calder Avenue Tel: (409) 833-0016 Beaumont, Texas 77704 Re: Cause No. A-134,614 Russel H. Alle?4 et al vs. Anwiican Petrofina, Inc. Deposition of. Harold Hoyle (B91-8), (B91-9), (B91-11) Dear Ms. Clark: Enclosed herewith please find a copy of the original deposition of the witness named above. Please have the witness review and sign the jurat page before any Notary Public prior to returning to our office. Should the witness find it necessary to make any changes or additions to the deposition, please use the amendment sheets enclosed. Should you have any questions regarding this matter, please feel free to contact our office. Sincerely, M @A@ Rangel Scheduling Department mar Enclospre cc: -Mr. Hershel L Hobson Ms. Kathy Kubach Mr. Geolge R. Covert Ms. Demse Abrams Mr. Peter Boyd Wells, III Mr. Thomas W. Duesler Mr. Duncan S. Stuart Mr. James H. Powers Mr. Robert H. Hood Mr. Gary A. Bezet Page 2 M@ Sandra Clark Mr. J. Thad Heartfield Mr. David Ledyard Ms. Gail C. Jenkins Ms. Ann L. Burkey Mr. John J. Hainkel, II Mr. Christopher A. Conkling Mr. William E. Schweinle, Jr. Mr. John B. Hall Mr. J. Wiley George Mr. D. Allan Jones Mr. Kristopher E. Fernandez Ms. Katherine Armstrong 1 NO. B-126,986 2 RUSSELL ALLEN, ET AL 3 VS. 4 AMERICAN PETROFINA, ET AL IN THE DISTRICT COURT JEFFERSON COUNTY, TEXAS 60TH JUDICIAL DISTRICT 5 6 7 FRENCH HICKS, ET AL N0. A-134,614 IN THE DISTRICT COURT 8 VS. 9 BETHLEHEM STEEL CORP., ET AL JEFFERSON COUNTY, TEXAS 58TH JUDICIAL DISTRICT 10 11 12 13 14 VIDEOTAPED DEPOSITION OF 15 HAROLD ROBERT HOYLE 16 17 18 19 20 On July 20, 1993, the videotaped 21 deposition of HAROLD ROBERT HOYLE, a Witness in the 22 above-styled causes, was taken at the instance of 23 the Plaintiffs at the Valley Plaza Inn, 5221 Bay 24 City Road, Midland, Michigan, pursuant to 25 Stipulations of Counsel contained herein. 2 1 Those Counsel present, representing their 2 respective client or clients in the causes of 3 action in which they have filed Answer, were as 4 follows: 5 6 MR. JOSEPH C. BLANKS Reaud, Morgan & Quinn 7 801 Laurel Street Beaumont, Texas 77701 8 Counsel for Plaintiffs 9 10 11 12 MR. L. J. "MIKE" DECKER, III Decker & Associates 13 15915 Katy Freeway, Suite 150 Houston, Texas 77094 14 Counsel for Defendant, 15 Triple B Corporation 16 17 18 MR. MARK A. WISNIEWSKI 19 Kitch, Saurbier, Drutchas, Wagner & Kenney, P.C. 20 10th Floor, One Woodward Avenue Detroit, Michigan 48226 21 Counsel for Defendant, 22 Owens-Corning Fiberglas Corporation 23 24 25 3 1 2 3 MR. S. DAVID McNEILL Freeman McNeill 4 3310 West Big Beaver Rd., Suite 518 Troy, Michigan 48084 5 Counsel for Defendant, 6 M. H. Detrick 7 8 MS. SUSAN USERY 9 Alenik & Associates 12 Greenway Plaza, Suite 1200 10 Houston, Texas 77046 11 Counsel for Defendant, 12 Big Three Industries, Inc. 13 14 MR. STEVE RICE Hays, McConn, Rice & Pickering 15 400 Citicorp Center Houston, Texas 77002 16 Counsel for Defendants, 17 AMOCO Chemical Company, et al 18 19 MR. ARTHUR ALMQUIST 20 Mehaffy & Weber One Allen Center 21 500 Dallas, Suite 1200 Houston, Texas 77002 22 Counsel for Defendant, 23 The Dow Chemical Company 24 25 4 1 2 MS. JILL A. PHILLIPS Dinsmore & Shohl 3 1900 Chemed Center 255 East Fifth Street 4 Cincinnati, Ohio 45202 5 Counsel for Defendant, Liberty Mutual Insurance 6 Company 7 8 MR. JOSEPH P. SULLIVAN 9 Law Office of Joseph P. Sullivan The Wanamaker Building 10 100 Penn Square East, Suite 1050 11 Philadelphia, Pennsylvania 19107 Counsel for Defendant, 12 John Crane, Inc. 13 14 MR. TRACY RICHARDSON 15 Jenkins, Grove & Martin 5th Floor, 2615 Calder & 10th 16 Beaumont, Texas 77702 17 Counsel for Defendants, Mobil Oil Corporation and 18 Fina Oil & Chemical 19 20 MR. FRANKLIN A. POFF, JR. 21 Gooding & Dodson 300 Texarkana National Bank Building 22 P. 0. Box 1877 Texarkana, Texas 75504-1877 23 Counsel for Defendant, 24 GREFCO, Inc. 25 5 1 2 3 MR. ROBERT S. DAVIS Cowles & Thompson 4 One American Center, Suite 777 909 E.S.E. Loop 323 5 Tyler, Texas 75701 6 Counsel for Defendants, Fuller Austin Insulation Co. 7 and Warren Austin Gage 8 9 10 MS. SUSAN S. HENDERSON Baughman & Associates Co., L.P.A. 11 55 Public Square, Suite 2215 Cleveland, Ohio 44113 12 Counsel for Defendant, 13 USX Corporation 14 15 MS. CHARLOTTE SMITH, CSR 16 Charlotte Smith Reporting, Inc. The Kyle Building 17 235 Orleans Beaumont, Texas 77701 18 19 20 VIDEOTAPE OPERATOR: 21 MR. HUNTER BLANKS Beaumont, Texas 77701 22 23 24 25 6 1 2 3 IN ATTENDANCE: 4 MR. DUNCAN STUART and MR. MICHAEL KAY 5 The Dow Chemical Company 2030 Willard H. Dow Center 6 Midland, Michigan 48674 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 7 1 ST I P U LATI 0 N S 2 3 IT IS STIPULATED AND AGREED BY COUNSEL 4 FOR THE PARTIES HERETO: 5 6 7 That the deposition is taken pursuant 8 to the Texas Rules of Civil Procedure; 9 10 That Charlotte Smith, a Certified 11 Shorthand Reporter for the State of Texas, may act 12 as a Certified Shorthand Reporter for the State of 13 Michigan for purposes of swearing the Witness in 14 this deposition; 15 16 That an objection made by one Defendant 17 shall serve as an objection by all Defendants for 18 purposes of this deposition; 19 20 That the deposition is to be videotaped; 21 22 That the transcript will be submitted 23 to the Witness for reading and signing by said 24 Witness; 25 8 1 That according to Rule 206 of the Texas 2 Rules of Civil Procedure, the original transcript 3 will be delivered to MR. JOSEPH C. BLANKS. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 I 23456 7 EXAM I N AT I 0 N I N D EX 8 9 10 EXAMINATION BY: PAGES: II Mr. Joseph C. Blanks 10 - 169 12 Mr. Arthur Almquist 169 - 171 13 RE-EXAMINATION BY: 14 Mr. Joseph C. Blanks 171 - 176 15 16 17 18 19 20 21 22 23 24 10 1 2 having been duly sworn, testified as follows, 3 to-wit: 4 5 EXAMINATION BY MR. BLANKS: 6 Q Good morning, Mr. Hoyle. I'm Joe 7 Blanks, as I'm sure you have been told, here to 8 ask you some questions today in our ongoing 9 asbestos cases. 10 Would you just do me the favor of 11 introducing yourself for the jury for the 12 purposes of your deposition, sir. 13 A Yeah. My name is Harold Hoyle. 14 Q And you are a former Dow employee, are 15 you, sir? 16 A Yes, sir. 17 Q Where do you reside these days, 18 Mr. Hoyle? 19 A Right now Midland, Michigan. In the 20 wintertime I'm in Florida. 21 Q Just for continuity purposes, let me 22 just recap a couple of things from your 23 background and also to get them focused in my 24 mind. 25 If I remember correctly, you served 11 1 for many years as the chief industrial hygienist 2 for Dow Chemical Company, roughly from '48 3 through '76. Would that be so? 4 A That's true. I was the chief 5 industrial hygienist. 6 Q And would you remind me when you 7 joined the company, sir. 8 MS. USERY: Could you have 9 the Witness speak up a little 10 bit? 11 MR. ALMQUIST: He's talking 12 as loudly as he can. 13 A I have a bit of a problem. 14 Q Speak at your comfort level and 15 MR. ALMQUIST: Speak at the 16 level you are comfortable with. 17 Q I'm sorry, I was asking you when you 18 joined the company. I apologize. 19 A In 1941 I was here for a summer, and I 20 returned to teaching and became a full-time 21 employee in 1942. 22 Q And your background I think was in 23 chemistry and physics? 24 A That's true. 25 Q was that the field you worked in in 12 1 the first years, the first four, five, six, 2 seven years with the company was in the field of 3 chemistry? 4 A No. 5 Q What were you doing? 6 A The first job I had was a pipe shop 7 estimator in the summertime. And the second job 8 that I had was in the Accounting Department as 9 the Dow Magnesium Corporation. 10 Q This almost sounds like you were in 11 the Army instead of in private business. You 12 have a chemist and a physicist and you put him 13 in the Accounting Department. What was going on 14 there? 15 A I had a physical problem. I had 16 ulcers and I was told to find a job where I 17 would be responsible for my own actions. I was 18 a high school coach before that, which may 19 explain. 20 Q What led, then, to your move into the 21 industrial hygiene field in 1948? 22 A I had been a safety engineer for four 23 years prior to that, and the decision within the 24 company was that someone was needed to do this 25 job full-time. 13 1 Q And was it the case that before there 2 was actually an Industrial Hygiene Department 3 founded or created, that the Safety Department 4 had been responsible for industrial hygiene-type 5 activities and concerns? 6 A The Safety Department always had a 7 shared responsibility because it is part of 8 safety. Actually, the industrial hygiene done 9 prior to my arrival was done by a man who was 10 also the chief toxicologist. 11 Q Would that be Mr. Rowe? 12 A No. That was Dr. Edgar Adams. 13 Q So, if I understood you, then, before 14 '48 for some period of time Dr. Adams - 15 A Yes. 16 Q --- who was the chief toxicologist, 17 also did some industrial hygiene work at Dow? 18 A As needed. He probably was the father 19 of industrial hygiene at Dow. 20 Q Could you give me a feel for 21 approximately when Dr. Adams began with the 22 company? 23 A Yes. He came to Dow in 1934. 24 Q Was it your understanding that he had 25 kind of begun doing industrial hygiene-type 14 1 tasks back even into the late '30's on an 2 as-needed basis? 3 A I can't put a time on it, really. He 4 had done it because he was doing toxicology and 5 had the kind of information that would be needed 6 to make some decisions in industrial hygiene. 7 Q So, he had access to the health hazard 8 information about various materials? 9 A His job was to develop that kind of 10 information on our products. 11 Q And I guess necessarily he also had 12 laboratory facilities and a technical 13 background, of course, that would - 14 A He had a Ph.D. in biochemistry. 15 Q Was Dr. Adams actually the founder of 16 the Toxicology Department at Dow? Was that the 17 right way to say that? 18 A Dr. Donald D. Irish was the first 19 biochemist and did the first toxicology. His 20 interests were broader than just toxicology, so 21 he brought Dr. Adams in a couple of years after 22 he arrived. 23 Q What was it that got you interested in 24 industrial hygiene to where this position was 25 actually appealing to you and one you wanted to 15 1 take? 2 A Well, I think it goes back to the 3 thing you alluded to: I'm a chemist by 4 training, and although I was enjoying the safety 5 engineering job, it was not as technical as it 6 might have been. And industrial hygiene is 7 quite similar to safety as far as its goals are 8 concerned, being limited to the work environment 9 rather than things like falling down stairs and 10 getting electric shocks and things like that. 11 There's a whole laundry list of safety items 12 that are not chemical in nature. 13 Q So, this gave you a chance to combine 14 your safety background and your scientific 15 education into a - 16 A That's the way I saw it when I took 17 the job, yes, sir. 18 Q I guess you liked it. You stayed with 19 it for almost 30 years. 20 A For a while, yes. 21 Q Could you give me some sense of how you 22 came to have your training in industrial hygiene 23 and what did you do to really become proficient 24 at this job and who were you dealing with as you 25 began to develop in the field after '48? 16 1 A Maybe the best way to describe it is 2 to say that I have frequently said that Ed Adams 3 was my major professor. And, of course, there 4 were opportunities to - for training in terms of 5 seminars and opportunities to hear papers being 6 presented at technical meetings, things like 7 that. 8 Q If I remember correctly, you had said 9 earlier that you only missed one or two of the 10 American Industrial Hygiene Association meetings 11 over those years you were practicing. 12 A I believe that's right. 13 Q You went to the first one in 1948 in 14 Boston? 15 A Yes, it was in Boston. 16 Q This would have been an opportunity 17 for you to hear technical papers being 18 presented? 19 A Yes. That's the major one that I 20 remember. There were other circumstances, but 21 that was the annual thing that one could depend 22 on and it's where the people doing industrial 23 hygiene had an opportunity to present their 24 papers and reports. 25 Q And then these were published in the 17 1 quarterly journal of that association which you 2 also received? 3 A It was quarterly to start with. 4 MR. ALMQUIST: Mr. Hoyle, 5 we're getting so we're talking on 6 top of each other, and I know 7 Mrs. Smith over here is a real 8 good reporter, but she has a hard 9 time when both people are talking 10 at once. Please wait until 11 Mr. Blanks gets through with his 12 question before you start your 13 answer. 14 THE WITNESS: All right. 15 Q We tend to fall into a conversation 1 6 here - 17 A That's true. 18 Q --- and it's making it tough. 19 We were talking about the AIHA 20 quarterly journal. I suppose that would have 21 been one of the resources that you would have 22 had available and would have been reading - 23 A Yes. 24 Q --- as the issues came out, to stay 25 abreast of new developments and also to educate 18 1 yourself? 2 A That's right. 3 Q The Industrial Hygiene Foundation is 4 an organization you are familiar with, isn't it? 5 A Yes, sir. 6 Q I'm thinking back at some point that 7 it was called the Air Hygiene Foundation of 8 America? 9 A It may have been. That was before my 10 time. 11 Q It might have been back in the '30's. 12 And I understand Dow had been a member of the 13 Industrial Hygiene Foundation from fairly early 14 on as you recollect. Is that true? 15 A Yes. 16 Q Is that an organization whose meetings 17 you also attended from time to time? 18 A Yes. 19 Q And they had at least one or more 20 regular publications, too, I think. Do you 21 remember those, Mr. Hoyle? 22 A The one that I remember best was the 23 industrial hygiene Digest. 24 Q I guess "Digest" describes it. 25 A Well 19 1 Q I mean it was a collection of little 2 abstracts from articles published in the field 3 from around the world, wasn't it? 4 A Yes, sir. 5 Q Was that something that was handy and 6 useful to you? 7 A It was a source of information; 8 useful, of course. 9 Q I guess it gave you a convenient way 10 of keeping up with developments in a lot of 11 different fields of industrial hygiene without 12 having to actually subscribe to the hundred or 13 more journals that they abstracted periodically. 14 A More importantly, you didn't have to 15 read all those journals - the articles that were 16 of interest. 17 Q And for the jury's benefit, then, this 18 Industrial Hygiene Foundation Digest would give 19 you just a little brief paragraph describing the 20 highlights of a new article on whatever the 21 topic might be - 22 A Yes, sir. 23 Q --- to where you could skim through 24 the Digest, look for the topics of interest. 25 And if it looked like it was worth pursuing, 20 1 then you could obtain a copy of the actual 2 article that was mentioned in the Digest. True? 3 A Yes. 4 Q Do you remember, Mr. Hoyle, if this 5 Digest was a resource that they had at Dow when 6 you began to do industrial hygiene work there 7 which would have been in '48 again? 8 A Well, I remember seeing it early on 9 when I went to work there. Does that answer 10 your question? 11 Q I think so. It was there when you 12 began or at least - 13 A Or copies came across my desk sometime 14 soon after I got there. 15 Q Do you know which individuals from 16 Dow; if any, were connected with the Industrial 17 Hygiene Foundation - I mean as directors or 18 officers or something like that? 19 A Not any, to my knowledge, that I 20 remember. 21 Q Do you remember that the IHF was 22 organized that way to where individuals did 23 serve from outside companies? 24 A They had a board of directors - I 25 remember that - and officers. And I think these 21 1 people may have been from companies, but I don't 2 remember that there was any Dow involvement at 3 that level. 4 Q Do you recall that the Industrial 5 Hygiene Foundation was a foundation organized by 6 different companies, industrial companies, to 7 further industrial hygiene matters? 8 A I don't believe that I know how it was 9 organized. It was already there when I became 10 interested in the field. 11 Q But specifically during the 28 years 12 that you were doing industrial hygiene, you know 13 of no Dow employees who actually served as board 14 members? 15 A I can't remember any such circumstance. 16 Q Or any Dow employee who actually had 17 any position with the Industrial Hygiene 18 Foundation that you can recall? 19 A Not in any permanent position, no. 20 Q Now, I understand that the Industrial 21 Hygiene Foundation from time to time did 22 consulting work in the field. 23 A Yes, sir. 24 Q Do you recall Dow ever using the IHF 25 as a consultant? 22 1 A Not during my time at Dow did we use 2 them. Whether they were used before my arrival, 3 I don't know. 4 Q And I suppose other than going to the 5 annual meetings or the periodic meetings that 6 the Industrial Hygiene Foundation sponsored for 7 its members, you never went to any organizational 8 meetings? 9 A No. There were occasional symposiums, 10 I remember, that they had sponsored from time to 11 time. 12 Q That's a better way to describe it 13 for the meetings. So, you went to the technical 14 symposia from time to time? 15 A Yes, I participated from time to time. 16 Yes: 17 Q But never had any connection with any 18 of the activities of the organization in terms 19 of how it was run - 20 A No. 21 Q --- or its policy settings or anything 22 like that? 23 A No. 24 Q What kind of connection, if any, did 25 you ever have with the American Congress of 23 1 Governmental Industrial Hygienists, the ACGIH? 2 A Well, they had their meetings 3 concurrent with the AIHA meetings. I had 4 contact with some of their members because the 5 State Health Department people were members of 6 that group; in Michigan, that is. 7 Q How was it, Mr. Hoyle, that you were 8 acquainted with the State Health Department 9 industrial hygienists in Michigan? 10 A Well, they had an industrial hygiene 11 unit in that group, and, therefore, they had 12 industrial hygienists whose job it was to 13 largely help industry maintain and create 14 healthful work environments. It was in that 15 context that I had my contacts with them. They 16 were called engineers. 17 Q Industrial hygiene engineers? 18 A I believe that's right. 19 Q Do you have any understanding of how 20 far back in time the Michigan industrial hygiene 21 unit goes in the State Health Department? 22 A Well, to 1948, I know, and before. 23 Q Did you ever hear that it was founded 24 back in the '30's or during the early '40's? 25 A I wouldn't doubt it at all, but I have 24 1 no specific recollection-of when it was started. 2 I know it was there when I got started. 3 Q Can you recall, Mr. Hoyle, any of the 4 gentlemen connected with that unit that were 5 around when you began doing industrial hygiene 6 at Dow? 7 A I have trouble with names, remembering 8 names. Always have. If I saw a list I could 9 pick them out, but I'm afraid I can't just 10 offhand name the people that I had contact with 11 over the years. 12 Q Nobody comes to mind at the moment? 13 A I can tell you his first name and 14 describe him to you. His first name was Russ, 15 and he was tall. 16 Q Tall Russ. 17 A Tall Russ, an engineer who had his 18 office in Saginaw, and I would see him 19 occasionally. He's one that comes to mind. 20 There was another fellow who was before 21 him who I can describe to you, but I can't even 22 tell you his first name. I can tell you that he 23 was a pilot and flew his own plane because I 24 remember he told me about that, and he left the 25 state service at the time Russ came to this area. 25 1 Q Do you recollect that any of these 2 gentlemen left the State Health Department and 3 went to work in industry? 4 A None of those that I know did. I 5 wouldn't be at all certain but that somewhere 6 along the way there might have been somebody 7 that did. 8 Q Did you ever do any projects with them 9 or consult with them on things at Dow? 10 A Not too often because they were usually 11 responding to complaints, and we didn't have many 12 complaints. That's the reason the contacts were 13 more in the line of our being source people, I 14 guess, to stop by once in a while and say, 15 "What do you know about such-and-such material?" 16 That was the context I remember. 17 Q So, often these state industrial 18 hygiene engineers would be relying on some of 19 the scientists at Dow for a little technical 20 expertise? 21 A I would hate to say they relied on us, 22 but I would say that our professional contacts 23 were such that there was an easy exchange of 24 information. 25 Q Did that work both ways? 26 1 A Yes, but I think they probably got 2 more than they gave because we had a toxicology 3 lab and they did not. 4 Q Did you have a local section in the 5 late 1940's for the Industrial Hygiene Association? 6 A Well, it wasn't the late '40's, I 7 don't think. I think it may have been in the 8 '50's. We tried for two years to have a local 9 section because in the wintertime it wasn't very 10 nice to drive to Detroit for meetings. But it 11 didn't work out - mostly I think because people 12 who were available for membership were mostly 13 Dow employees and we saw each other all day 14 anyhow. So it just didn't work out. But there 15 was a local section here for more than one year 16 and less than five. I don't remember exactly. 17 Q So, effectively, the local section was 18 the Dow personnel and - 19 A There were only a few others because 20 there were only a few others in the Saginaw 21 Valley. 22 Q And the state people you were seeing 23 informally from time to time anyway? 24 A That's right. I can't recall whether 25 Russ joined our group or whether he maintained 27 1 his membership in the so-called Michigan 2 Section. 3 Q Which would have been down at Detroit? 4 A Down at Detroit. 5 Q Did you go down there for any 6 meetings? 7 A Yeah, I did occasionally if the 8 weather wasn't too bad and I didn't have too 9 many things I had to do. I was a member of that 10 group and still am. 11 Q Did you make the acquaintance of Bill 12 Bradley from Detroit? 13 A Not in that context. I knew him at 14 AIH. He had already left Michigan by the time 15 he became an industrial hygienist, I think. 16 Q Yes, sir, that was his testimony: 17 that he left about the time the War began, 18 probably about the time you started at Dow, 19 actually. 20 A Yes. 21 Q Going to New York. 22 A Wasn't he with Cyanamid? 23 Q Yes, sir. Was Mr. Patty back in 24 Detroit when you started doing industrial 25 hygiene work in '48? 28 1 A He was, indeed. 2 Q I suppose you made his acquaintance. 3 A I did. 4 Q Somebody that you would see from time 5 to time in your professional activities? 6 A Generally at AIHA meetings or at the 7 Michigan meetings. 8 Q We were told that Mr. Patty and 9 Mr. Bradley were the founders of the Detroit 10 or the Michigan Section. 11 A It sounds reasonable to me, but I 12 wasn't around, so ... 13 Q What company was Frank Patty working 14 with during the years you knew him? 15 A General Motors. 16 Q They are based down in Detroit, are 17 they? 18 A It's a suburb of Detroit where they 19 are now, so-called GM Tech Center, I think. I 20 don't know the name of the suburb. 21 Q Now, we were talking briefly about the 22 ACGIH, and I understood you to say that they met 23 at the same time or in the same city and in the 24 same week as the American Industrial Hygiene 25 Association for convenience sake. 29 1 A It was a concurrent session. People 2 from either group were welcome at the other 3 group's meetings. 4 Q Oh, okay. I didn't understand. 5 A And many of the ACGIH people were 6 members of AIHA. We didn't exclude them. They 7 excluded us. 8 Q The ACGIH consisted of industrial 9 hygienists who were not industrial employees? 10 A I believe they had to be governmental 11 employees of some kind. 12 Q That would also have included those 13 attached to universities, I suppose? 14 A I think so. 15 Q And you were able to attend their 16 meetings that took place along with the AIHA 17 meetings? 18 A Yes. If they had a session we wanted 19 to go to, we were welcome. 20 Q What sorts of things would they cover 21 in their sessions? Was it the same sort of 22 general industrial hygiene topics? 23 A They reported what they had been 24 doing, if what they had been doing had led to a 25 scientific publication, which was true of the 30 1 other organization, the AIHA. 2 Q Did you ever have any dealings with 3 their threshold limits value committee or its 4 predecessor, Mr. Hoyle? 5 A I was sometimes involved in 6 conversations, particularly where they were 7 considering materials that Dow made and handled, 8 where they wanted - were interested in our 9 industrial hygiene experience. That's the only 10 contact I had. 11 Q And you recall, don't you, sir, that 12 other Dow professionals or scientists also had 13 dealings with the ACGIH committees over the 14 years? 15 A In much the same way that I did. 16 Q In fact, there were at least a couple 17 of individuals that had been referred to as like 18 ex officio members of the - 19 A Just one that I know of. 20 Q Which one? 21 A Dr. Theodore Torkelson. It probably 22 would have been more accurate to call him a 23 source person than a member of the committee, 24 but he did act as a consultant to them. As an 25 individual and not as a Dow employee. 31 1 Q To the TLV committee? 2 A Yes, sir. 3 Q And didn't V. K. Rowe also do that 4 from time to time as you remember? 5 A Well, Torkelson worked for Rowe, and 6 he was in charge of the inhalation toxicology 7 laboratory. Of course, that's the laboratory 8 that generates the kind of information they 9 would have been most interested in - that 10 context, I'm sure. 11 Q Mr. Hoyle, could you give me some idea 12 or understanding of how the TLV committee of the 13 American Conference of Governmental Industrial 14 Hygienists would contact you and how the flow of 15 information or discussions would go when it 16 would happen that they would be interested in a 17 chemical that Dow was making or using? 18 A Well, there wasn't a formal procedure 19 that can be described. It was a matter of 20 personal contact and the question being asked. 21 The questions usually were, "What experience do 22 you have? What data do you have?" They were 23 interested in data. In my case they were 24 interested in what had we measured in the work 25 environment. In V. K.'s case they were interested 32 1 in whether the animal data - what the animals 2 said to us, in other words. 3 Q So that those of us here can 4 understand and the jury can understand, could. 5 you tell me, you know -- Who would it be from 6 the ACGIH that would contact you? I mean was 7 there an official committee and employees that 8 would make the contact or would it be some 9 individual who was working on a particular 10 material? I mean just how did it work? How 11 organized was it? 12 A They had a committee. These were all 13 volunteer people. They had no staff, so to 14 speak, and the contacts would - they could be 15 telephone contacts or whatever. 16 Q Letters were probably more common back 17 then. 18 A Well, I would say more common was just 19 through conversation - at an AIHA meeting as far 20 as my contacts would be concerned. The 21 telephone would be the second most likely. 22 I don't remember too many written requests. 23 I'm not sure but what there may have been some, 24 but I don't remember. 25 Q But if I am understanding you, then, 33 1 there would be committees of ACGIH members who 2 might be, let's say, looking at threshold limit 3 values. And as you perceive it, one or more 4 individuals on that committee might have the 5 responsibility to look into - 6 A I wasn't on the committee, so I don't 7 know how they assigned it. My contacts were all 8 with some one individual person. It would just 9 be playing guesswork. I would guess that they 10 probably would take assignments for a particular 11 material. 12 Q That was at least your perception of 13 it? 14 A Well, I don't know if I had a 15 perception. To be honest with you, I think 16 these were people that I knew who came and asked 17 for information. It was that simple. 18 Q They were volunteers that did this on 19 their own time? 20 A That's right. That's right. 21 Q And however they got the assignment 22 whether it was personal interest or an actual 23 assignment from the committee chairman - an 24 individual might contact you and talk with you 25 at a professional meeting and say, "What can you 34 1 tell me about chemical 'X'?" 2 A That's right. And it was a matter of 3 contact between two people, both in the same 4 profession and both trying to assure safe 5 working conditions in industry. It was in that 6 context. 7 Q I appreciate that. So, they were 8 seeking data from the actual users of the 9 particular material? 10 A I presume that they were seeking data 11 anywhere they could find it, and certainly the 12 users were the ones - or the manufacturers were 13 the ones most likely to have measurements made 14 in the work environment, I would think. 15 Q Your experience certainly would 16 support that inference, wouldn't it? 17 A That's right. 18 Q And I suppose that, short of asking 19 for this data from tox labs or from your field 20 industrial hygiene surveys, the ACGIH really 21 didn't have much other way of obtaining this 22 information other than what would be in the 23 published literature. Would that be a 24 reasonable assumption? 25 A That's true. 35 1 Q Were there any times, Mr. Hoyle, when 2 Dow would actually go to one of the ACGIH 3 committees and say, "Fellows, we've got some 4 data on a new material we have developed. We 5 have some concerns about it," or, "We need to 6 handle it in a particular way to be careful," 7 or, "It is more toxic than generally might be 8 believed"? In other words, where you would 9 actually take the first step and contact them 10 and say, "Here is some information on a chemical 11 we've been working with that you need to 12 consider in formulating the threshold limit 13 values for it"? 14 A I think that that may have happened. 15 I don't know all of the different ways that they 16 became interested in materials. I do know that 17 we did publish at Dow tox information on 18 materials as soon as investigations were 19 complete. 20 Q Well - 21 A I personally was not much involved in 22 that. 23 Q of course, you wouldn't have been 24 doing the toxicology work. 25 A I wasn't doing the tox. V. K. is the 36 1 one that I am remembering-what he and his people 2 did more than I did. 3 Q Do you recall publishing results of 4 field surveys, field measurements? 5 A Generally, no. Generally they were 6 not scientific investigations in the terms that 7 most editors look at scientific investigations. 8 We did make some publications, but in many cases 9 our investigations were to gather the 10 information that we needed. We didn't try to 11 keep anybody from getting it from us, but there 12 is industrial hygiene information unpublished 13 because it is simply not extensive enough to 14 satisfy an editor. 15 Q Yes, sir. 16 A That's what I'm trying to -- I'm 17 having trouble answering the question without 18 using a lot of words. 19 Q It's all right. I'm not doing a good 20 job of asking questions. I'm kind of nervous 21 now that Duncan has told his new lawyer here 22 that he's going to see a good job done. 23 MR. STUART: Well, I'm sure 24 he is. 25 Q What I'm getting at, though, Mr. Hoyle, 37 1 was how in your experience would field data or 2 industrial hygiene survey data regarding some 3 material get to the ACGIH if they didn't come 4 asking for it? 5 A We might have volunteered it at times. 6 I don't remember specific instances, so "yes" or 7 "no" I can hardly say. But I -- Certainly in 8 conversation when I was asked, I can remember 9 passing such data. I cannot remember a case 10 where we said, "My goodness, we'd better get 11 this to the TLV committee," not having found 12 many cases of that kind. But Torkelson, because 13 of his relationship, might have been a conduit 14 from time to time. 15 Q Again, because of the laboratory - 16 A That's right. 17 Q --- and the fact that they were - 18 A We worked closely enough with the 19 toxicologist so he would have had information 20 from our lab as well as his. 21 Q You had an industrial hygiene lab that 22 was in addition to the toxicology lab at Dow? 23 A Yes, sir. 24 Q How early on was that set up, sir? 25 A In 1948 with my advent to the scene. 38 1 Q You mean they made you the industrial 2 hygienist and then gave you a tox lab at roughly 3 the same time? 4 A Not a tox lab. 5 Q I'm sorry. I'm looking at what I had 6 written down. They made you the industrial 7 hygienist in '48 and equipped you with an 8 industrial hygiene laboratory then, too? 9 A Yes, sir. 10 Q Can you just briefly describe what 11 that consisted of in terms of space and 12 equipment? 13 A Yes. It was a one-room laboratory, 14 and the equipment was the kind of equipment that 15 you need to get air samples, for the most part. 16 Q So, you had sampling devices? 17 A Yes. 18 Q Like - 19 A Go ahead. 20 Q You go ahead and tell me what was 21 there. I'm just guessing. You know. 22 A Well, some of this equipment I should 23 have said was there because otherwise Adams 24 couldn't have done any industrial hygiene. 25 Q Sure. 39 1 A So formally having it separate 2 happened in 1948. Having some of the equipment 3 present was before that time. But there hadn't 4 been a specific laboratory for industrial 5 hygiene until they had an industrial hygienist. 6 Q So, you had counting equipment as well 7 as the sampling equipment? 8 A Yes. 9 Q Microscopes, I guess? 10 A Yes, sure did. 11 Q Were you using midget impingers back 12 in '48? 13 A We were using Greenburg-Smith 14 impingers which are big impingers. And as soon 15 as I got acquainted with midget impingers, we 16 started using midget impingers. 17 Q When did you obtain the Bausch & Lomb 18 dust counters? 19 A That was there when I arrived. Adams 20 had bought it. 21 Q Did you have any Zeiss konimeters? 22 A No. 23 Q Did you ever get one? 24 A No. 25 Q Did you have some sort of a device 40 1 around that time for sampling for vapors? 2 A Several. 3 Q Is there some sort of a spectrometer 4 device that is used for that purpose? 5 A Not for sampling, no. 6 Q What would you use to sample for 7 benzene vapors? 8 A Well, we used silica gel to a large 9 extent as a trapping agent. 10 Q Did you have to do the lab work 11 yourself in the beginning? 12 A Not the analytical part, no. Dow was 13 well established in the analytical business 14 before I arrived. I had to get samples that the 15 chemists could handle. 16 Q So, you'd grab them and they would 17 count them? 18 A As far as the counting is concerned, to 19 begin with I did count them. As time went along, 20 I got a lab called the microscopy lab, much more 21 sophisticated than I was. From a research point 22 of view they did some of ours. But as far as 23 the counting, using the cookbook that you had to 24 use in order to use the standard, we did it 25 ourselves. 41 1 Q At least back in the early years, huh? 2 A Yes. 3 Q Can you give me an approximate value 4 or number of how many times you think some 5 person from ACGIH TLV committee would have 6 contacted you about a material that you were 7 working with over the years? 8 A Oh, dear. 9 Q And it is very approximate, of course. 10 A It wasn't an unusual circumstance. I 11 was there for 30 years. I have difficulty 12 answering your question. I don't know. 13 Q Well - 14 A Was it - 15 Q --- certainly more than a few times? 16 A More than a few times, but certainly 17 not every day or anything of that kind, either. 18 Q Over 30 years maybe even as much as 100 19 times perhaps, given the years that were involved 20 and that it was a period of a lot of activity in 21 your field? 22 A Well, I hesitate to put any kind of 23 number on it. It was not unusual, I can tell 24 you that. 25 Q Can you recall that there were any 42 1 times when some ACGIH member contacted you about 2 a proposed revision, a change, of a threshold 3 limit value as opposed to the creation of a new 4 one for some new material? 5 A The change that pops into my mind 6 immediately is the change that was proposed for 7 asbestos, and I was not contacted because I was 8 not an expert - wasn't doing research in the 9 area is what I should have said. I was expert 10 enough to apply the standards, but beyond that I 11 was not involved. 12 Q Do you recollect, Mr. Hoyle, that the 13 standards for the different TLV's were revised 14 very frequently over those years you were 15 practicing? 16 A Not very frequently. There were that 17 I remember revisions. Vinyl chloride was 18 revised, just to name one. It pops into my 19 mind. I need to do a little research to help my 20 memory, I guess, to answer your question. 21 Q I guess we could go back and compare 22 the tables from year to year. 23 A One after another you would certainly 24 find it, that's right. But that there were a 25 lot of changes, that's not my recollection. 43 1 Q And if we were to review the tables 2 from one revision to the next, isn't it so that 3 we would find some new materials added - 4 A Oh, yes. 5 Q --- for one thing? 6 A That's certainly true. 7 Q We would find a few revisions in a 8 standard for a particular material, such as you 9 mentioned with vinyl chloride -- 10 A I'm sure you would. 11 Q --- and perhaps benzene or some 12 others? 13 A Yes. 14 Q But when we speak of a revision of the 15 threshold limit values, there wasn't a wholesale, 16 across-the-board changing of standards for each 17 and every material or even more than just a 18 handful at any one time, was there? 19 A That's, I think, true. 20 Q And the proposed revisions of the 21 asbestos standard came roughly when as you 22 recall, in the '70's? 23 A No, I think we started hearing about 24 it in the '60's, the late '60's. These things 25 generally didn't happen on a Tuesday. 44 I Q You mean - 2 A It took years of discussion among the 3 professionals before changes were made, 4 publications, this kind of thing. 5 Q Would it have been the case, 6 Mr. Hoyle, that no ACGIH member ever contacted 7 you about lowering or changing the standards for 8 asbestos exposures? 9 A I don't recall ever being contacted 10 about that change. II Q Do you recall ever being contacted at 12 Dow about any proposed change in the silica 13 threshold limit value? 14 A No, I don't. 15 Q Do you recall ever being contacted 16 about a proposed change let's say in the benzene 17 standard? 18 A I think I had some conversations with 19 someone - I can't remember who now - about that 20 in terms of, "What kind of measurements for 21 benzene do you see in the environment?" But I'm 22 not sure it was a member of the threshold limit 23 value committee. It might have been T.orkelson. 24 Q Can you recall approximately what part 25 of a decade that discussion took place in? 45 1 A No, I don't. 2 Q Did you ever come across any 3 indication that any asbestos insulation 4 manufacturers had provided data to the ACGIH 5 TLV committee that would show the need to change 6 the standard for asbestos? 7 A Not being a member of the committee or 8 being involved with asbestos except as a 9 material that we bought, I would have been 10 surprised if I had, and I certainly don't 11 remember it. 12 Q Do you remember if any asbestos 13 insulation company ever came to you at Dow and 14 gave you any information that you could have 15 used to make better judgments about protecting 16 the people working in your plants from asbestos 17 exposure? 18 A My recollection is that we depended 19 upon the standards or, rather, the threshold 20 limit value and Patty's book pretty much. And I 21 don't recall having contact with any of the 22 suppliers. 23 Q What do you recall Dow doing to 24 prepare for the proposed change in the asbestos 25 exposure standard in the late '60's, Mr. Hoyle? 46 1 A We initiated a study of the Dow 2 insulators to see what their exposures were - I 3 mean in some detail, because we wanted to know 4 whether we were satisfied already that we were 5 doing all right with the five million particles; 6 but we needed further information to see where 7 we would stand if it changed to two million 8 particles. 9 Q Was there a time when you or your 10 staff did some monitoring work for Dow Corning 11 employees? 12 A Yes, in response to a request from Dow 13 Corning. One of my industrial hygienists did a 14 study which was -- It's reported in detail in 15 one of the reports that was a part of my last 16 deposition. 17 Q Was it the case that Dow industrial 18 hygienists were available as consultants to Dow 19 Corning during any of the years you were there? 20 A Well, to any of the Dow associated 21 companies, not just specifically Dow Corning. 22 Q What other companies would that have 23 included that you can remember? 24 A Oh, there was a Dow-Smith, I believe, 25 Company that existed for a while, and then there 47 1 was Dowell which was at times a separate company 2 and at times a division of the company. 3 Q Was Merrell Dow ever one of the 4 companies that your industrial hygiene section 5 ever provided services for? 6 A Merrell Dow didn't exist until years 7 after I retired. 8 Q What was the business of Dowell? 9 A They were an oilfield service company. 10 Q So I gather you did industrial hygiene 11 services for Dowell from time to time? 12 A I don't recall specifically that I did 13 when they were a separate company. From time to 14 time I had industrial hygiene contacts with 15 Dowell - I believe as a division of Dow. 16 Q Did any of the materials that they 17 handled include some that contained asbestos, to 18 your knowledge? 19 A Not that I recall. 20 Q You never did any sampling in 21 connection with the mixing of drilling mud? 22 A I did very little sampling in Dowell 23 at all - a little bit for HCL and some for an 24 organic solvent that I remember. 25 Q Did Dowell sell any products that had 48 1 its own name on it? 2 A I don't know. 3 Q Mr. Hoyle, I thought that I was going 4 to find a resume with the exhibits from your 5 deposition done back in 1991 in Florida, and I 6 didn't. Have you prepared one or ever had one 7 over the years, a curriculum vitae or resume? 8 A No. 9 Q Have you published any articles, sir? 10 A My name is on quite a few articles. 11 Q I think you are dodging that bullet. 12 What - 13 A Well, that's the way -- Offhand I 14 don't remember specific articles. I think I 15 remember that - a list that may have been as 16 many as twenty where I was either the author or 17 an author, some of which were published in 18 scientific literature and some in trade journal 19 literature. 20 Q Do you - 21 A None of which had anything to do with 22 asbestos. 23 Q Do you have a list still of these 24 articles? 25 A No, I never -- I don't believe I ever 49 1 kept a list. 2 Q Do you have any of your articles? 3 A No. When I left The Dow Chemical 4 Company, I left my files. 5 Q When you were a co-author, would it 6 more often than not have been along with some 7 other Dow scientists? 8 A Yes, always. 9 Q But none on asbestos, huh? 10 A That's right. 11 Q Any on any pneumoconiosis-causing 12 materials? 13 A No. No. 14 Q Any on any occupational carcinogens? 15 A Well, that's -- You'll have to define 16 "an-occupational carcinogen" for me. I don't 17 know how to answer your question in the absence 18 of such a definition. 19 Q Well, were there any where the focus 20 of the article was on the description of a 21 material that the authors - 22 A I don't remember that any of them had 23 that as an emphasis. Not to appear smart aleck - 24 Q No. 25 A --- vinyl chloride has been called -- 50 1 Q Yes, sir. 2 A --- and I think maybe vinyl chloride 3 might be one where my name would show up as a 4 co-author in one article, but I'm not even sure 5 about that. 6 Q But the focus of that article was not 7 on the suspected carcinogenicity of that 8 material? 9 A No, it would have been different than 10 that. 11 Q That's the way I meant the question. 12 A And carbon tet is another one that 13 some people say is a carcinogen, and the 14 definition is important at this point. Is 15 anything a carcinogen because you can somehow or 16 other cause an animal to have cancer? Well, if 17 that's your definition, that is almost 18 everything that we worked with. Not all, but 19 many things that animals have been shown to be 20 able to get cancer from. 21 Q Up until 1976 when you retired from 22 Dow, do you recall that the company had 23 identified any particular materials as being 24 carcinogens? 25 A Dow materials, you mean? 51 1 Q Either Dow materials or materials used 2 at Dow. 3 A I think that some had been -- There 4 were materials used that had been identified as 5 carcinogens - one in particular that I remember. 6 Q One material that had been used at 7 Dow? 8 A Yes. Not produced by Dow. 9 Q Which one would that have been? 10 A That was a tar that was used in 11 manufacturing electrodes. The electrodes were 12 then used at Dow. 13 Q In the chlorine - 14 A And magnesium. 15 Q And the magnesium unit? Can you 16 recall any other materials that were used at Dow 17 that you believed to be cancer-causing materials 18 before you left? 19 A I didn't even know if that tar was or 20 not. It was simply reported by another company. 21 Arsenicals have been identified, things 22 containing arsenic. 23 Q I thought you said "our cynicals." I 24 was wondering what a cynical was. 25 A Well, I am sometimes. And Dow did 52 1 make a Paris Green a long time ago. 2 Q And Paris Green? 3 A That's a material used to kill bugs, 4 barely better than swatting them. There are 5 old-timers that would take issue with me on that 6 last statement. I meant it as a smart remark. 7 I forgot where I was for a minute. 8 Q It may have been the best thing they 9 had at the time. 10 MR. ALMQUIST: We've been 11 going for an hour. This might be 12 a good time for a short break 13 here. 14 Q In these twenty or so articles that 15 your name appears upon, some of which I guess 16 you were the sole author on - 17 A Yes. 18 Q --- would I be correct in believing 19 that what you wrote in those articles was 20 truthful and based on the best information that 21 you had available at the time and accurate in 22 all respects? 23 A I have never done anything on any 24 other basis. I have never been asked to be 25 anything but honest, and I have never been 53 1 anything but honest. 2 Q And your expressions of opinions in 3 any of these articles would in fact be your 4 honest opinions based on your education and 5 training and experience and your research? 6 A And information available to me, yes, 7 sir. 8 MR. BLANKS: Thank you. 9 We'll take a brief break. 10 (AT THIS TIME A BRIEF RECESS 11 WAS TAKEN, AND THE PROCEEDINGS 12 THEREAFTER RESUMED AS FOLLOWS:) 13 14 (By Mr. Blanks) 15 Q Mr. Hoyle, do you recall a gentleman 16 named L. J. Richards from Dow from the late 17 '40's or anytime in the '40's? 18 A I do. 19 Q Do you recall him in the role of chief 20 engineer during part of that time? 21 A Yes, sir. 22 Q Did you ever work with that gentleman? 23 A No. 24 Q What generally would a chief engineer 25 have done in the early '40's? 54 1 A I guess he would have been in charge 2 of the Engineering Department. I don't know 3 that much about it. 4 Q Were you ever working in the 5 Engineering Department? 6 A No. 7 Q So, when you were doing like your 8 estimating work for - 9 A That was another department. 10 Q What department would that have been, 11 construction? 12 A It was called the Standards 13 Department. 14 Q I guess I'm confused with the titles. 15 They don't seem to be descriptive to my frame of 16 reference. What were you doing in the Standards 17 Department? 18 A I was a pipe shop estimator. 19 Q Okay, and you were estimating 20 quantities for purposes of what, buying 21 materials, fabricating? 22 A The estimates were in terms of how 23 much time, how much material, what would the 24 cost be. 25 Q To do what? 55 1 A A specific job. 2 Q Were these maintenance jobs or new 3 construction jobs or what? 4 A Maintenance. 5 Q So, you were doing the task that we 6 would associate normally with, say, a 7 construction estimator who would be doing a 8 material takeoff and making time estimates to 9 do a particular task, like you would be doing if 10 you bid a job for maintenance or a construction 11 project? 12 A Yes. 13 Q But this was being done for internal 14 purposes - 15 A Yes. 16 Q --- to budget and plan? 17 A Yes. 18 Q I see. And this was in the Standards 19 Department? 20 A That was the name of the department 21 that I was in. 22 Q What else did the Standards Department 23 do? 24 A Well, they set standards. They had 25 time study functions there. 56 1 Q So, your time -- Let's see. The 2 industrial engineering type of - 3 A That's right. 4 Q --- time motion study work? 5 A That's right. Those standards were 6 basic to my estimating. 7 Q Did the Standards Department also do 8 anything to set standards for maintenance? 9 A Not to my knowledge. I worked there 10 in the summer. 11 Q That was your summer job? 12 A Uh-huh. 13 Q Okay. Could you tell us what 14 department in Dow in the early '40's, if there 15 was one, would have been the one that would have 16 written the specifications for materials used in 17 the plant, such as thermal insulation? 18 A I would think that that was the 19 Engineering Department. 20 Q I was thinking that, too. 21 A I have no specific knowledge to answer 22 your question. I should have answered it 23 differently perhaps because I don't really know. 24 Q Well, you answered me that you think 25 it was the Engineering Department. 57 1 A I would have guessed that it was. 2 That's the best I can do. 3 Q Do you have any recollection or 4 information that would suggest that at some 5 later period of time at Dow this responsibility 6 was with some other department than Engineering? 7 A No, I have no knowledge of any. 8 Q What kind of dealings did you have 9 with Mr. Richards back in the '40's? 10 A With Mr. Richards in the '40's, none. 11 Q But you did know him to be the chief 12 engineer? 13 A I did. 14 Q Including say around 1942 when you 15 began full-time work with the company? 16 A In 1942 I didn't know that he existed, 17 I suspect. 18 Q Do you have any recollection of when 19 Mr. Richards retired from the company? 20 A I know that he retired. I don't 21 remember when. 22 Q Before you did, I suppose. 23 A Sometime before. 24 Q Do you recall ever seeing in your 25 library or offices at Dow a copy of The Asbestos 58 Worker's Journal? A No. Q This was not one of the regular 4 publications that came to Dow in any of the 5 offices you were in? 6 A No. I have never heard of it until 7 you mentioned it. 8 Q Do you have any idea whether Mr. Richards 9 is still living? 10 A I believe he is not. 11 Q During your years as the industrial 12 hygienist, did Mr. Richards ever pass on to you 13 any information that he had received from any 14 insulation companies about their products, their 15 suspected or potential toxicity, or that sort of 16 thing? 17 A No. 18 Q So, your recollection is that you 19 found no correspondence there in your office 20 from any of the asbestos or other insulation 21 manufacturers with whom Dow might have been 22 doing business in the '40's? 23 A I don't recall any communications that 24 fit your description you just named. 25 Q Did you inherit any industrial hygiene 59 1 files when you took on the job of industrial 2 hygienist in 1948? 3 A There were files. 4 Q These would have been files that would 5 have been developed by your predecessors in that 6 field? 7 A Yes. 8 Q Dr. Adams? 9 A Specifically. 10 Q What did they amount to generally? 11 Were they survey reports or technical literature 12 or memos from the Safety Department? Could you 13 give us a feel for the flavor of it? 14 A The part of the files that I had 15 reason to look at were reports of surveys. 16 Q Do you recall any kind of a file or 17 technical literature that would have been kept 18 in the -- Well, you didn't have an Industrial 19 Hygiene Department before then, but in those 20 offices apart from what would have been your 21 technical library or central index system? 22 A Well, there was no industrial hygiene 23 when I got there. There was toxicology, and I'm 24 sure there were files. 25 Q Focusing on the technical literature, 60 1 though, was it the practice back in the late 2 '40's when you became industrial hygienist for 3 your colleagues to tear out articles and keep 4 them in a file at hand, or was it simply you 5 kept the journals on a shelf in some place that 6 would be accessible? 7 A I don't recall ever tearing out 8 articles and filing them. 9 Q You kept the whole journal? 10 A We didn't have extensive journal 11 tiles, I don't believe. I don't remember 12 tearing any out. 13 Q By the same token, you didn't throw 14 away like the AIHA quarterly. Those were 15 references you kept? 16 A Those were kept. 17 Q .Did you ever play any part in the 18 drafting or revising of plant safety manuals, 19 just a general safety handbook for Dow 20 personnel? 21 A Only as a source person. I never 22 wrote any of them. 23 Q Which department had that 24 responsibility? 25 A The Safety Department. 61 1 Q And whenever a manual might have been 2 written for contractor employees, would that 3 also have been under the Safety Department? 4 A Yes, sir. 5 Q So, some person from the Safety 6 Department might come to you when it was time to 7 revise a manual and ask you some specific 8 questions or ask you for comments or what you 9 thought might go into it? 10 A Yes. 11 Q Was this revising of the manual 12 something that happened on a regular basis or 13 was it just whenever the whim struck or somebody 14 got around to doing it? How do you remember 15 that, sir? 16 A I don't remember. 17 Q It's not a chore you were faced with 18 on an annual basis? 19 A It doesn't stand out in my mind in 20 terms of the calendar, no. 21 Q Do you remember ever being asked to 22 review the safety manual or handbook to suggest 23 changes in any parts of it? 24 A Well, not in total; but I have acted, 25 as I said, as a source person to the safety 62 1 engineers as they went about their job. 2 Q Would that consist of maybe reviewing 3 a section on respiratory protection or something 4 like that and making editorial comments for 5 their benefit? 6 A Respiratory protection would have been 7 an area where I might have been asked to either 8 review - or specific questions. I don't recall 9 in detail enough to answer better than that. I 10 might have been asked a question or I might have 11 been asked, "Hey, read this over and see what 12 you think of it." I don't remember which. 13 Q When you determined with the Bausch & 14 Lomb counter that the asbestos dust levels in 15 connection with the sawing and the tear-off of 16 asbestos insulation were higher than you wanted, 17 you made a recommendation about respiratory 18 protection, I think. 19 A Uh-huh. 20 Q And what generally did that amount to? 21 What was it? 22 A I don't know exactly how that was 23 finalized, as I have testified before. It is a 24 report that I should have written and apparently 25 1 didn't, and I am embarrassed about not having 63 1 done it. However, I suspect that the whole 2 thing was taken care of over the telephone 3 inasmuch as it didn't go through our regular 4 procedures with the safety engineer in question. 5 And it was a rather minor thing that could 6 easily have happened that way because I was 7 telling him, "There are two parts to the job 8 where we think they ought to wear respirators," 9 and that's all I had to tell him. 10 Q And the two parts were the sawing of 11 the insulation? 12 A The sawing of the material and the 13 tear-off, as I recall. 14 Q Now, if I understood what you said a 15 moment ago, you were suggesting that you didn't 16 think there was a written report of this 17 sampling that you did and a recommendation? 18 A It did not show up when the files were 19 searched for things having to do with asbestos. 20 I know no more than that about it. 21 Q What you know is apparently it wasn't 22 found during a review of the files? 23 A That's exactly what I know. 24 Q You may have actually made a written 25 report? 64 1 A If I did, it's lost. I don't know. 2 Q I think you told us that all the 3 written reports that Industrial Hygiene did make 4 were or should have been filed - 5 A They were. 6 Q And up through the time of your 7 retirement, certainly all of these old industrial 8 hygiene reports that were filed were kept? 9 A That's right. 10 Q And this particular sampling effort or 11 monitoring project with the Bausch & Lomb 12 counter that led to the recommendation for the 13 use of respiratory protection during sawing and 14 tear-out was done in the late '50's? Is that 15 your recollection? 16 A That's my recollection, sometime in 17 the '50's. Probably in the late '50's is the 18 way I think I stated it before. 19 Q Do you recollect whether or not in the 2U late '50's there was at Dow some sort of a data 21 sheet that dealt with asbestos-containing 22 insulation products? 23 A We had industrial hygiene data sheets 24 that we -- And I believe that by the late '50's 25 we had invented this little tool. My recollection 65 1 of the date on the one that had to do with 2 asbestos isn't good enough that I can tell you 3 what the date on it is. I have seen the data 4 sheets, so it you want to know, it could be 5 looked up. I think it's in the late '50's: 6 '57, '58, something like that. But it might 7 have been a little later than that. 8 Q Let me make sure that I understood 9 you, sir. You said something about inventing 10 this little tool. I guess you meant the use of 11 the data sheet? 12 A The data sheet itself was a device to 13 report information to knowledgeable people. 14 Q So, this was a reporting form that was 15 developed in Industrial Hygiene or Toxicology or 16 both, I guess, together? 17 A Yeah, that's right. 18 Q As a format to report information to 19 the people at Dow that needed to know? 20 A That needed to know. 21 Q About the hazards and the toxicity of 22 specific materials or products - 23 A Yes, sir. 24 Q --- that would have been in the plant? 25 A Yes, sir. 66 1 Q And you're saying that you all began 2 doing this you think in the late '50's? 3 A I rather think that's true. 4 Q And I think my question that led to 5 this discussion was do you remember that data 6 sheets were done, then, around that time in the 7 late '50's for asbestos-containing insulation 8 products or did that come later? 9 A I believe it would have been a little 10 later. 11 Q Do you think that there were any 12 asbestos-containing products that were covered 13 on a data sheet early on; that is, in the late 14 '50's? 15 A I would have to go and look. I can't 16 tell you for sure. 17 Q Where would one look for these? 18 A Well, I believe they are in the 19 exhibits associated with my former deposition. 20 Q Is it your understanding, Mr. Hoyle, 21 that those data sheets that were attached as 22 exhibits to your February 1991 deposition were 23 the only ones that could be located by Dow on 24 asbestos? 25 A I wasn't involved in the search because 67 1 I was retired, so I can't answer that question. 2 I can tell you that they were the ones that were 3 presented to me to look at at the deposition. 4 Q That is, those were the ones that the 5 Dow lawyer brought to the deposition? 6 A That's correct. I had nothing 7 whatever to do with getting the collection 8 together. I don't know how it was done. 9 Q You didn't get to go look through the 10 old files? 11 A I didn't know that I was supposed to, 12 and I would have probably objected to it. I'm 13 sorry. 14 Q No, I'm not suggesting that you were 15 supposed to. But you didn't have anything to do 16 with the search for them? 17 A No, nothing. That's what I'm trying 18 to say. 19 Q Were you told that these particular 20 data sheets that ended up being exhibits to your 21 1991 deposition were the only ones that could be 22 located; that there were no others that were 23 found? 24 A I don't remember that I was told 25 anything one way or the other. 68 1 MR. ALMQUIST: Let me 2 caution you, Mr. Hoyle. If you 3 start being asked questions that 4 deal - that require you to talk 5 about conversations with Dow's 6 attorneys, then I'm going to 7 instruct you not to reveal the 8 content of any of those 9 conversations. 10 THE WITNESS: Okay. 11 Q When the data sheets were prepared on 12 asbestos-containing materials at Dow, whenever 13 that was - and I suppose we are now necessarily 14 referring to ones that you have seen lately, the 15 ones that were exhibits to your deposition - did 16 the toxicity information about asbestos come 17 from the Toxicology Department or the Industrial 18 Hygiene Department or do you recall? 19 A Both groups would have had a look at 20 the data sheets, so it could have come from 21 either place. 22 Q Where would the author ordinarily be? 23 Who would typically be the author or the little 24 division responsible for drawing them up? 25 A In a certain sense I suppose I should 69 1 say that both, because one side of the data 2 sheet was toxicological properties and the other 3 side was proposed precautions. 4 Q So, Industrial Hygiene would have had 5 the precaution side - 6 A Yes, sir. 7 Q --- and the Toxicology people would 8 have had the other part? 9 A Yes, sir. 10 Q Was there a system in place to 11 generate these data sheets? Could you give us a 12 sense of that? 13 A Talking about - 14 Q Talking about early on when you began 15 this - 16 A You mean what triggered the data sheet 17 being made in the first place? Is that what 18 you're asking me? 19 Q Let me rephrase and start over. 20 A Please. 21 Q First of all, what triggered or led to 22 the decision that there would be data sheets at 23 all on potential toxic materials? 24 A This could happen if there was an 25 investigation in the toxicology laboratory that 70 led to knowledge. When the report was written, a data sheet would have been initiated. Q Let me interrupt and try again so we 4 go in a sequence. 5 A Yeah. 6 Q My first question would be what was it 7 that you remember, Mr. Hoyle, that led to this 8 decision to actually do data sheets at all, to 9 create the form and use that as a way of 10 communicating with your folks at Dow? 11 A That came about because of a felt need 12 by me to interpret the information available in 13 a way that it would be useful to the line 14 supervision who had the responsibility for the 15 safety of the people that worked in their 16 departments. 17 Q So, you perceived a need to have some 18 way to give specific safety information to the 19 line supervisors so that they could take care of 20 their folks? 21 A That's right. 22 Q In a format that would be consistent 23 and familiar to them? 24 A That's right. 25 Q Concise and easy to use? 71 1 A That's right. 2 Q Now, I guess this innovation preceded 3 what are now commonly called material safety 4 data sheets. That term had not come into wide 5 use? 6 A That terminology had not been -- That 7 came from OSHA, as I recall. 8 Q What was it, then, that would lead you 9 to prepare or have prepared a data sheet on a 10 particular material? That brings us back to 11 where we were a moment ago. 12 A And I have answered it, partly by 13 saying that if a sample was investigated in the 14 toxicology laboratory, that when the report was 15 written a data sheet would be initiated as a 16 part of that. And the other way -- There were 17 two ways that should be mentioned here. The 18 other way was by activity of the industrial 19 hygiene group, because our first step - or one 20 of our first steps was to inventory all of the 21 materials in a particular work environment before 22 we started to investigate the degrees of exposure. 23 If we didn't have data sheets for all of the 24 materials, then we went about whatever we had 25 to do to initiate one to get information. 72 1 Q I suppose at the beginning in the late 2 '50's you had rather a large task of creating 3 data sheets for a lot of different materials. 4 A As fast as we did inventories, as fast 5 as we did our job, then that department would be 6 covered. 7 Q Like so many systems, it's a lot 8 easier to maintain it, once it is in place. But 9 the creating of it would have been very time 10 consuming? 11 A Well, it took a while. 12 Q And you have said that you did 13 inventories, then, as part of this process of 14 creating data sheets? 15 A Which simply means that we have a list 16 of the materials in that work environment, 17 whatever the process. 18 Q In the late '50's, this process of 19 getting inventory from each unit or each plant 20 unit, would this have been the first time that 21 Industrial Hygiene had actually obtained an 22 inventory of materials from the plants at Dow? 23 A Well, the data sheets followed the 24 commencing of industrial hygiene. We didn't 25 have data sheets in 1948. So the answer is 73 1 that there were inventories done prior to the 2 data sheets. 3 Q Let me try my question a little better 4 because I have confused both of us, I think. 5 When you became the industrial 6 hygienist in 1948, did you set out then to do 7 inventories of all of the units or were you just 8 dealing with problems as they were thrown at you 9 or a little bit of both? 10 A There were inventories for some 11 departments where Adams had already been when I 12 got there. 13 Q So, he had already done some? 14 A That's right; not too many, but there 15 were some. 16 Q And you continued that process? 17 A We continued it to the day I retired. 18 Q I guess I was picturing sort of an 19 initial inventory. 20 A No, we didn't get it done all at one 21 time. 22 Q So, over the course of that decade, 23 your first decade as industrial hygienist from 24 1948 to the late '50's when the data sheets were 25 devised by you and came to be created, this task 74 1 of inventorying the stressors and the potentials 2 for toxic exposures in the Dow facilities were 3 just continued over that whole period? 4 A Yeah, it was an ongoing thing. There 5 was no end to it. 6 Q But then in the late '50's when you 7 began to prepare the data sheets, you 8 specifically requested from the production units 9 a current list of all materials that they were 10 using in the plant so you could assess them for 11 the need for data sheets? 12 A The need for the data sheet was the 13 presence of the material on the site. 14 Q And the inventory from the unit gave 15 you - 16 A Gave us that information. 17 Q About what was on the site? 18 A Yeah. 19 Q And I suppose you looked at those and 20 decided which ones needed the highest priority? 21 A We did put priority on it, yes. 22 Q And got on the worst ones first and 23 worked your way down to the less serious ones? 24 A Uh-huh. 25 Q And then, as new materials were 75 1 developed or put into use, then those you would 2 do along with the toxicological work that 3 accompanied every new product or material that 4 was used in the Dow plant or put into a Dow 5 product; is that right? 6 A That's a pretty good description. 7 Q I mean it was the case that Dow was 8 doing toxicological research work on all of the 9 materials that it sold? 10 A Well, now, that's not quite true, 11 although almost, I guess. The samples are 12 usually sent in when the thing was still in 13 research as far as products are concerned, and 14 there are many data sheets for materials that 15 never - 16 Q Never made it. 17 A --- very much beyond the eye of the 18 researcher. 19 Q So, the company's approach was 20 actually to investigate the toxicity of the 21 materials - 22 A Right at the start. 23 Q --- before they even decided that they 24 would make a product -- 25 A Oh, yeah. 76 1 Q --- and sell it? 2 A Sure. 3 Q Why? 4 A Well, it's basic information to decide 5 whether it is a suitable material to be sold. 6 Q You mean whether it would be safe for 7 people to use? 8 A Yeah, that's right. You wouldn't want 9 to spend a lot of effort developing a material 10 that couldn't be used. 11 Q I gather it was also, then, the Dow 12 philosophy not to sell materials that couldn't 13 be safely used? 14 A That's true. I think I should say 15 that a little differently. 16 The philosophy was to have information 17 available to the people who would use the 18 materials so that they could safely use it. We 19 weren't in the business of developing their 20 techniques for handling. 21 Q But at least part of your business was 22 telling them about the hazards they would face - 23 A That's right. 24 Q --- when they did handle the material? 25 A That's right. 77 1 Q Was this something that Dow started 2 doing late in your career when the OSHA 3 regulations came in? 4 A No. This started with Don Irish's 5 arrival on the scene in 1934 and developed from 6 that. The history is that Toxicology preceded 7 Industrial Hygiene. 8 Q But it's been part of the Dow product 9 development program since the mid '30's? 10 A Well, yes, to an increasing extent in 11 its facilities. That's true. 12 Q To your knowledge was health and 13 safety information about Dow products - that is, 14 products Dow made and sold - was that ever 15 withheld from Dow's customers? 16 A Quite the contrary: It was not 17 withheld. It was made a part of sales 18 literature. 19 Q So, the information actually went out 20 with the products or with the literature that 21 accompanied the sale of the products? 22 A Frequently, if not every time. I 23 presume every time if it presented any 24 particular hazard. 25 Q Did Dow do anything in the way of 78 1 following up in the field with some of its 2 customers? 3 A Sometimes. 4 Q To help them to safely handle the Dow 5 products that were being used by the customers? 6 A Yes. 7 Q Did you, yourself, go out on some 8 industrial hygiene - 9 A Oh, yes. 10 Q --- surveys with customers? 11 A Yes. 12 Q And what was the idea behind this? 13 Why was this done? 14 A Well, it was our -- The reason that I 15 had a job was to help make certain that we had 16 available information that would allow people to 17 manufacture the material and use the material 18 safely, and also so we would have the 19 information so that the neighbors would not be 20 adversely affected. That's the three things I 21 was told. That's basically the philosophy, and 22 so all that you are talking about grew out of 23 that philosophy, I guess. 24 Q Surely you approached your own work 25 force with the same attitude of keeping them 79 I well informed about the potentials for harm - 2 A Yes. 3 Q --- that they could encounter at work? 4 A That's right. 5 Q How did you put in the hands of the 6 people that would be working with asbestos 7 insulation in the late '50's this information 8 about the need to use respiratory protection 9 while sawing insulation or while tearing out old 10 insulation, such as they might be doing during II maintenance work? 12 A It was presented at safety meetings 13 for the pipe coverers. 14 Q So, the approach was, then, for a Dow 15 safety man armed with the information that you 16 had provided and your recommendations to 17 actually meet with the insulators - the pipe 18 coverers as you called them? 19 A Either that or the foremen. Safety 20 meetings didn't always have a safety engineer 21 present, but the safety engineer would have been 22 the source person for the foremen. 23 Q So, the new rule of "always use a 24 respirator when you are cutting insulation or 25 when you are tearing it out" would have gone from 80 1 Industrial Hygiene down to the Safety Department 2 and then been relayed to the men actually doing 3 that work through safety meetings? 4 A Yes. 5 Q Would this rule also have been put 6 into the safety or work manual? 7 A I don't know that they had a work 8 manual. This causes me to think of a thick book 9 of some kind or other. I don't remember that 10 kind of thing. There may have been in some 11 places. 12 Q The only examples I have with me of a 13 Maybe "work manual" is the wrong term. I've got 14 one called like "safety rules and regulations," 15 for instance. 16 A The Texas Division. 17 Q Yes, sir. 18 A Well, there were safety rules and 19 regulations booklets which covered general 20 safety items that I remember. I don't know what 21 is in that one. 22 Q But you would call this -- Would this 23 be like the safety book? I mean how would you 24 commonly refer to it at the company, safety 25 manual? 81 1 A I don't ... 2 Q I just wonder what your terminology 3 was. 4 A The one that I'm acquainted with at 5 Midland was a thing you could put in your 6 pocket. There was just "Safety" on the outside 7 of it, as I recall. 8 Q Do you recall that there were special 9 handbooks or manuals for the different trades 10 that worked at Dow, such as pipe coverers; that 11 is to say, insulators of pipes? 12 A There were things called key points 13 cards which I think are what you're talking 14 about, and these described the things that 15 needed to be done to do a specific job safely. 16 Q So, they had a safety focus to them? 17 A That's right. 18 Q As opposed to a, "Here's how you fit 19 the insulation or cut your pipe"? 20 A That's right. 21 Q And these key points cards were also 22 specific to different trades or tasks? 23 A Yeah. Generally they were task-oriented, 24 I think. 25 Q Do you recall, Mr. Hoyle, if there were 82 1 any kind of special training programs for 2 particular crafts or craft lines in Dow during 3 any of the years that you were there? 4 A I wouldn't have had much reason to 5 know about it after I left the Safety 6 Department, so I don't know the history of it at 7 that point. 8 Q Did you come across any such things 9 before you left the Safety Department? 10 A We had safety meetings. 11 Q I was thinking more in terms of a 12 little training program or course for particular 13 crafts, like an insulator training program or a 14 pipefitter training, that sort of thing. 15 A Well, they had something that they 16 called a tailgate meeting which was before they 17 started the job, they reviewed their key points 18 cards and talked about how they were going to do 19 the job. That was commonly done. 20 Q You mean like before they would start 21 on a particular little maintenance project - 22 A That's right. 23 Q --- they'd take a look at the hazards 24 they would be facing? 25 A That's right. 83 1 Q And the approach to it? 2 A That's right. 3 Q But, stepping back a pace or two from 4 the safety issue, do you recall if there were 5 any training manuals used at Dow to train 6 apprentices in a particular craft? 7 A I was never closely enough connected 8 with that vehicle to be able to speak to it. 9 Q And, certainly, if there were such 10 things, at least you in Industrial Hygiene 11 didn't have any input into those that you knew 12 of, I guess? 13 A We were source persons, and our input 14 would have been upon request, if they felt a 15 need for it. 16 Q Sure. And you just don't remember 17 being requested for any help with training 18 manuals, if there were any? 19 A I had -- I guess I just can't 20 remember. I just can't remember specifically at 21 that point. 22 Q Do you remember if there was anything 23 in the nature of actual specifications for 24 thermal insulation materials to be used in Dow 25 plants; whether it was hot or cold or what have 84 1 you? 2 A That's a question for the Engineering 3 Department. I don't know. Not that I ever had 4 anything to do with. I didn't write specs, is 5 what I'm trying to say. 6 Q Okay. No - 7 A Nor did it enter into my job much. 8 Q So, even in doing your inventory of 9 materials in the units, you don't recall coming 10 across any kind of specs for, say, a particular 11 kind of insulation? 12 A We would have been looking for 13 specific materials, not the purpose of the 14 material being there. It wouldn't have been 15 very pertinent to us. 16 Q I was just thinking of it in the 17 context that maybe the specification sheet would 18 say the contents or the ingredients of such-and 19 such - 20 A Whether we ever looked at one of those 21 or not, I can't tell you. We would have if we 22 had thought it was of any use to us. 23 Q Were there some materials that were 24 used at Dow for which Dow did not rely on the 25 ACGIH published threshold limit values that you 85 1 can remember? 2 A We had a good many materials that had 3 not yet reached the threshold limit values list, 4 lots of them. 5 Q Did you develop your own - 6 A We did. 7 Q --- standards or limits for those 8 materials? 9 A We did. 10 Q What did you do at Dow to validate or 11 increase your comfort level with the in-house 12 standards for materials that hadn't yet been 13 published on the ACGIH list? 14 A I don't know quite how to answer your 15 question, I guess. 16 Q I guess it goes to - 17 A What is it you are looking for? 18 Q Tell us how you would actually come up 19 with a value to put on your own - your in-house 20 threshold limit figure. 21 A That I can tell you. That was - would 22 have been supervisory people from Medical, 23 Toxicology, Industrial Hygiene and Safety. They 24 would have met together with all of the 25 information we could get together in front of 86 1 us, and we would have come to a consensus. 2 Either that or the decision that we could not 3 come to a consensus, and then we would have to 4 find more information. How do you do that? The 5 toxicology laboratory has got some more work to 6 do, or you go back to the supplier if it's an 7 outside material. 8 Q And the data from the toxicology lab 9 would be in the form of results of animal 10 testing - 11 A That's right. 12 Q --- for the most part? 13 A That was their contribution, was 14 meeting that problem. 15 Q So, you would be looking to see 16 perhaps how much of a concentration of a 17 particular particulate or vapor would have a 18 noticeable detectable effect on the laboratory 19 animal and try and generalize from there? 20 A And from that you would come to a 21 number that suited everybody in that group. 22 Q Applying, I suppose, a good dose of 23 margin for error and safety factor in order to 24 reach the final number? 25 A Of course. Safety factors depend on 87 1 how good your data is and how serious the 2 consequences are if you mess up. 3 Q Now, since that's the way you would 4 establish a threshold limit value - 5 A Yeah. 6 Q --- I suppose you would use similar 7 steps, similar experiments and information, if 8 you wanted to revisit a particular value and 9 consider making a change in it? 10 A As further information became 11 available, then changes were made accordingly. 12 Q Were there any times when you took the 13 published threshold limit value figure for a 14 material and, based upon your own experience, 15 determined that that was too high and you were 16 going to use a lower standard at Dow? You were 17 going to set the limits down at a lower level 18 because you wanted more of a safety factor or 19 more of a margin for error? 20 A No, I don't remember any. There may 21 have been, but I don't remember any. I don't 22 think there were. 23 Q Certainly you had the capability in 24 your laboratory and with the competent people 25 that worked there to look at any of those 88 1 materials that you wanted to - 2 A That's right. 3 Q --- and run your own experiments - 4 A Yeah. 5 Q --- and kind of validate whatever the 6 ACGIH had come up with? 7 A That's true. We could have, but I 8 think we seldom changed those numbers. You see, 9 those were industry wide consensus figures, to 10 begin with. Unless we had reason to actually 11 look at those - I mean to test those materials, 12 I can't imagine what you are describing as being 13 the case. 14 Q I mean you could have had serious 15 adverse health effects at exposure levels that 16 were near the limits or close to them. 17 A We could have, but we didn't have. To 18 my knowledge we didn't have. 19 Q But I mean had you had health effects 20 at or below the published threshold limit 21 values, that would have been a sign to you that 22 you needed to revisit that value? 23 A We would have taken immediate action. 24 Q Just so it's clear, having found 25 evidence that there were cases of disease at 89 1 below the threshold limit value would have made 2 you as the industrial hygienist at Dow want to 3 move your exposure level down to a lower point? 4 A Our position was we wanted to use the 5 best information available to us to ensure 6 safety in the work environment. 7 Q And that kind of information, cases of 8 disease at the threshold limit value or below 9 the - 10 A That kind of information. 11 Q --- that would have required a 12 response, in your judgment? 13 A That's right. 14 MR. BLANKS: Could we 15 suggest that this is a good 16 lunchtime? 17 (AT 11:58 A.M. A RECESS WAS 18 TAKEN FOR LUNCH. AT 1:22 P.M. 19 THE DEPOSITION RESUMED AS FOLLOWS:) 20 21 (By Mr. Blanks) 22 Q So, Mr. Hoyle, welcome back from what 23 I am sure was a delightful lunch. 24 A Thank you. 25 Q We were visiting about threshold limit 90 1 values and cases of disease at or near the TLV 2 level and so on when we recessed. And I was 3 reminded that I think you had said the decision 4 making at Dow in the Industrial Hygiene 5 Department depended to a large extent on the 6 MAC's, the maximum allowable concentration 7 values and later the threshold limit values. 8 A We were guided by those guides, yes. 9 Q And where there wasn't a guide, you 10 made your own based on the research done in your 11 labs? 12 A And the opinions from the Medical and 13 Safety Department and Industrial Hygiene. 14 Q And I am recollecting that the Medical 15 Department did relate closely to the activities 16 of the Industrial Hygiene Department and the 17 Safety Department - I mean where the interests 18 were the same. You had access to the Medical 19 Department for support? 20 A Yes. 21 Q And I guess they would - 22 A And vice versa. 23 Q --- call on you from time to time. 24 Now, what is your earliest and best recollection 25 of there being a medical monitoring program at 91 1 Dow for workers potentially exposed to any 2 particular toxic material? 3 A The physical examination program, as 4 it was known, developed over time, I think, all 5 the way from the time when the Medical 6 Department's activities were treating people 7 with complaints associated with the job to the 8 point where it was made available to everyone. 9 So we're not talking about a particular year or 10 day. 11 But I would think that by the '50's 12 sometime that the physical examination program 13 available to the employees, if they wanted it, 14 would have been in place. 15 Q So, this would have been a routine or 16 a periodic - 17 A A periodic - 18 Q --- physical exam for employees who 19 requested it at Dow? 20 A True. 21 Q Beginning in the late '50's? 22 A Sometime in the '50's. 23 Q Approximately? 24 A My memory isn't good enough to put it 25 closer than that. 92 1 Q In the '50's. Had there been as far 2 back when you got hired a pre-employment physical 3 as a condition of going to work? 4 A There was. 5 Q Do you recall any particular product 6 lines at Dow for which the men working on that 7 production unit had to have medical monitoring? 8 A I don't know that it was ever made a 9 condition of employment. There were places 10 where it was advised almost to the point of 11 requirement. I don't remember at Dow that we 12 ever had hard and fast rules for things like 13 that, you know, where you would say "either/or." 14 I don't remember that being the case. I think 15 it was generally well accepted. 16 Q Well accepted that one participated? 17 A If it was recommended, most of the 18 people took advantage of it. 19 Q Was this a program that you, yourself, 20 took advantage of regularly; that is, getting a 21 physical examination? 22 A I generally got a physical once a year 23 under that program, I guess, until I reached the 24 place where there was a different program for 25 supervisory responsibility - supervisory people. 93 1 I guess they called it an executive program. 2 Q Can you recall, Mr. Hoyle, if there 3 was any time when there was a special program 4 for medical monitoring of workers potentially 5 exposed to asbestos at Dow? 6 A Yes. 7 Q What decade would that have been in? 8 A Around 1960, I would think, in that 9 Give or take five years either way. 10 Q Did you have anything to do with the 11 proposing of that and causing that to be put 12 into place? 13 A This group that I mentioned to you 14 before - Medical, Safety and Biochemical - or, 15 rather, Toxicology and Industrial Hygiene people 16 it certainly was planned in that working group. 17 Q Do you recall that the decision to 18 begin this monitoring grew out of the perception 19 of any particular problem or exposure levels 20 that you had detected? 21 A No. 22 Q What would it have been that triggered 23 this? 24 A Just the fact that asbestos and 25 Silica is another material that would have been - 94 1 it was known that people worked with these 2 materials, so they were included in the program. 3 Q How long did this program continue 4 where you monitored the workers potentially 5 exposed to asbestos or to silica? 6 A I think about two or three years, and 7 the medical director decided that the findings 8 were all negative and that the chest X ray 9 wasn't needed under the circumstances. 10 Q So, the medical director decided to 11 terminate that program? 12 A He decided not to expose the people to 13 chest X rays on his recommendation because of 14 their environment. 15 Q Were they also doing pulmonary 16 function testing - 17 A They were. 18 Q --- of these same workers potentially 19 exposed to these dusts? 20 A They did. 21 Q Did that pulmonary function testing 22 stop at the same time that the X rays - 23 A The testing was still there and 24 available. The only thing that stopped was the 25 aggressive selling of the idea to this 95 1 particular group because it was this particular 2 group. 3 Q The particular group being like the 4 insulators or the sandblasters? 5 A The insulators and sandblasters mostly. 6 They had been singled out for a recommendation 7 that they surely take advantage of it when 8 available. They weren't getting anything that 9 was not available to other people, as I recall. 10 Q Are you meaning that the X ray program 11 and the pulmonary function testing program was 12 available to other trades as well? 13 A To anybody that worked there as well. 14 MR. ALMQUIST: We're falling 15 back into the same trap a little 16 bit. Make sure he's through 17 talking before you start. 18 THE WITNESS: Okay. 19 Q So, your recollection is that around 20 the time the medical monitoring program was in 21 place in the '50's - perhaps close to 1960 as 22 may be - that chest X rays and pulmonary function 23 testing were both available to employees who 24 asked for it or who were recommended to have it 25 by someone at Dow? 96 1 A That's correct. 2 Q It was just the aggressive program of 3 encouraging insulators and sandblasters to have 4 annual chest X rays that was eliminated by the 5 medical director after a few years of taking 6 films of these men? 7 A True. 8 Q Did you have at that time as you 9 recall any kind of data about the exposure 10 profiles that these workers potentially exposed 11 to asbestos or to silica had had when they were 12 in the X ray program? 13 A There was no industrial hygiene data 14 that described the exposure of these people in 15 detail at that time. 16 Q Do you recall, sir, if you had data 17 that would at least describe for you the number 18 of years that these individuals had been working 19 in their particular trades? 20 A That's a question for the Personnel 21 Department. I don't know what their records 22 looked like. "Probably" is my answer. 23 Q Probably you had it available? 24 A It probably was there. I don't 25 remember specifically going and asking for it. 97 1 Q Certainly you would have appreciated 2 the significance of the durations of past 3 exposures in terms of evaluating an occupational 4 disease, wouldn't you? 5 A As well as the levels that they 6 probably were exposed to. 7 Q As well as what? 8 A The levels of probable exposure. 9 Q And you would not have expected 10 certainly with the insulators - to have seen 11 signs of asbestosis on the X ray films or lung 12 changes suggesting asbestosis after only a few 13 years of exposure, would you? 14 A I don't know how long it would have 15 taken. I suspect it would have been related to 16 the levels of exposure as well. I know that 17 there is some length of time. I don't know that 18 there is a specific length of time. 19 Q Did you appreciate that the medical 20 director at Dow would have had an understanding 21 also of the latency periods involved with 22 asbestosis or silicosis diseases? 23 A I really -- You said would I have 24 expected. The answer is "yes." Do I know, I 25 don't know. 98 1 Q Who was this gentleman, the medical 2 director? 3 A There was more than one. Dr. Gay was 4 the first one; Dr. Gordon was the second one, 5 after Dr. Gay retired. 6 Q Dr. Harold Gay? 7 A Harold Gay and Harold Gordon. 8 Q And Harold Hoyle. 9 A And Harold Hoyle. They used to say we 10 had a meeting of Harolds. There was also one 11 from the Safety Department. 12 Q Do you know which of these two doctors 13 would have been the one who terminated the X ray 14 program for the insulators? 15 A Yeah, I think it was Dr. Gay. 16 Q Before you left Dow in 1976, was there 17 a renewal of this sort of periodic monitoring of 18 workers potentially exposed to asbestos for 19 medical exams? 20 A I don't think so. I don't remember 21 that there was. 22 Q Do you recollect, sir, in the last few 23 years you were there - let's say in the '70's 24 whether there was any specific periodic 25 monitoring done of the gentlemen who worked in 99 1 insulating at Dow; that is to say, monitoring of 2 their dust exposure? 3 A There was one careful study done in 4 about 1968 or so. 5 Q Okay. That was your '68 or '69 study - 6 A It may have been '69. There may have 7 been some of it happening in both years. I 8 don't remember. 9 Q That was done by Mr. DeGesero? 10 A DeGesero; Roy DeGesero, correct.. 11 Q But in the '70's - at least the '70's 12 while you were with the company - there was no 13 routine industrial hygiene monitoring of the 14 workers potentially exposed to asbestos? 15 A What kind of monitoring? 16 Q You know, you did your detailed study 17 of the insulators in the late '60's. I was 18 wondering if in the '70's you began to do 19 periodic monitoring on a routine basis of 20 workers potentially exposed to asbestos working 21 at Dow. 22 A I don't recall that there was. The 23 findings of that study would not have prompted 24 such a program. They were not above the five 25 million particles on average. 100 1 Q So, the average of the time-weighted 2 averages that came out of that study were 3 slightly below the TLV of the time, right? 4 A Yes. And it was -- The study combined 5 with what we knew of the medical histories are 6 the things I'm thinking about when I say I don't 7 think there would have been any reason to change 8 the program as it was existing. 9 Q And by the time you retired some seven 10 or eight years after that detailed study of 11 insulators, had you obtained any new medical 12 data on the men who had been part of the 13 insulator study at Dow? 14 A I'm not sure about that. I think the 15 medical records would have to speak for 16 themselves. 17 Q It didn't come to your attention - 18 A I don't recall that such was done. 19 Q --- such as X rays in the mid '70's 20 that would look for changes over the last few 21 years? 22 A I don't recall that. 23 Q Were there any particular industrial 24 hygiene records that you asked Dow or its 25 lawyers to locate for you before the depositions 101 1 you have given? 2 A I didn't ask anybody to get anything 3 for me. I responded to a request that I appear. 4 That's about the size of my activity. 5 Q You didn't suggest that it might be 6 handy to have some of your old files or records 7 or anything like that? 8 A I don't recall making such a request. 9 Q Did you happen to keep any kind of 10 files or old literature or correspondence, 11 diaries, memos; or did you leave everything 12 behind when you left Dow? 13 A I didn't take anything home with me 14 because I was retiring, and whatever I had I 15 felt should be left there for my successor. 16 Q And when you retired, all of the files 17 that you had accumulated over the years were 18 intact in your office or in your filing system? 19 A We had a rather extensive filing 20 system. It was intact when I left. 21 Q Can you give us an approximate 22 quantity of the volume of this, some 23 quantification of the magnitude of the files? 24 A Well, it was pretty close to 30 years 25 work, varying from two people to -- Because soon 102 1 after I started, another man came along - up to 2 a dozen people. And we had kept all of the 3 original data and all of the copies of the 4 reports that we had written. 5 Q Would we be speaking in terms of tens 6 of - or dozens of file cabinets full of papers, 7 reports and data and memos? 8 A Oh, I guess probably. It's a hard 9 question for me to answer. There were lots of 10 them, and that's about the way I remember it. 11 Q Okay. 12 A And if I wanted something, I usually 13 asked my secretary to get it for me. 14 Q And, as a general rule, she was able 15 to find it? 16 A Always. 17 Q Always? 18 A Almost always. 19 Q Sometimes you had lost it? 20 A I suddenly put my scientist hat on and 21 remembered that nothing is always. 22 Q There was not any kind of a policy or 23 program in place when you left Dow then in 1976 24 that required the routine review of old 25 documents prior to their being destroyed or 103 1 trashed? 2 A There was such a program. 3 Q There was? 4 A Yes. 5 Q When did that go into effect? 6 A I don't know. Before I retired 7 sometime, not too long before. Maybe in the 8 late '60's or so, and I remember it because I 9 was asked what kind of things we needed to keep. 10 It was a matter of maintaining order and 11 usefulness of the files. And my recommendation 12 was that we not dispense with anything that had 13 data in it and records of data or professional 14 opinions. And it was still -- We kept all of 15 those things up until the time I left, I'm sure. 16 Q * And I suppose you don't have any 17 knowledge about what has happened since then to 18 either the policy or the records? 19 A I have had no contact with it. 20 Q Do you recall any kind of communication 21 with anybody in Dow suggesting that any of these 22 records ought to be purged or gotten rid of 23 because of potential litigation problems or 24 exposures -- 25 A No. 104 1 Q --- or difficulties? 2 A No. Strictly on the basis of making 3 room for - reducing the quantity of stored 4 records. 5 Q And, as you understood it, this 6 program covered the whole company? 7 A The whole company. 8 Q But there was obviously some room for 9 discretion in terms of maintaining scientific or 10 technical or engineering data, I suppose? 11 A People at my level were asked, "What can 12 you safely not keep and what do you think you 13 have to keep," both sides of the pot. 14 Q And this happened across different 15 departments. I suppose Toxicology and Medical 16 would have been asked the same thing. 17 A I would presume so. My contact was a 18 contact with a fellow that had the program and 19 was trying to reduce the quantity of paper that 20 was around. 21 Q Who was this individual charged with 22 shoveling out the Aegean stables? 23 A It beats me. 24 Q You don't remember the man's name? 25 A His name - his first name was the same 105 1 as mine, but I can't tell you his last name. I 2 should be able to, but I don't remember. I 3 didn't know him except in that one contact. He 4 contacted me and told me what he was doing and 5 asked me what we could do. 6 Q Do you recall, sir, taking part in a 7 toxicology symposium in the very early '60's 8 maybe '60, '61 - along with your colleagues, 9 V. K. Rowe and other gentlemen? 10 A Well, I remember one in Texas where 11 almost all of us were involved, I guess. 12 Q Can you tell me some more about that, 13 please? 14 A My recollection is that it was put on 15 for the benefit of people at the Texas Division 16 and also for the Texas Chemical Society, I 17 believe, if that's the right name. I'm not sure 18 about that. 19 Q How about Texas Chemical Council, 20 perhaps? 21 A It could be. It could be. And we 22 each made a presentation having to do with our 23 own area of interest, and we did it. 24 Q This would have been down in Houston, 25 1 suppose? 106 1 A Well, it was in Houston for the Texas 2 Chemical whatever, and it was in the Lake 3 Jackson, Freeport area. The Texas Division. 4 Q So, it was two presentations - 5 A It was the same thing. 6 Q --- of similar material? 7 A The same papers, I think. 8 Q So there were actually papers of a 9 sort or akin to what you might present at a 10 meeting of one of your professional associations? 11 I mean - 12 A Yeah, it could be. It was fairly 13 general as I recall. 14 Q And your talk was printed up into a 15 little booklet, wasn't it? 16 A I'm sure it was, yeah. 17 Q Would you recollect this document that 18 I am going to label in a minute as a reprint of 19 the symposium from the - circa 1960? 20 A Well, it's got pictures of the right 21 people anyhow. Without reading all the words, I 22 can't tell you whether it's - what it is. But 23 it looks to me as though ... 24 Q Do you recognize that fellow there 25 (indicating)? 107 1 A I think I've seen him in the mirror. 2 It was an attempt to give people an understanding 3 of the whole field of industrial health and 4 control health problems, as I recall. 5 Q It's a nice general overview with some 6 detail to give them a sense of what services 7 were available at the corporate offices? 8 A Yeah. Actually it was, as it says 9 here, a symposium on toxicology. It was oriented 10 toward the toxicology laboratory, and the rest 11 of the things you see in here were people who 12 used that information to do things in their 13 daily work. 14 Q I could not find a date in here, and 15 I'm not going to ask you to look for one because 16 I don't think there is one. But I was attempting 17 to place it in time, and just from the biographic 18 sketches I was hoping we might find enough to 19 where you could increase our competence level in 20 the date of this. 21 A No. 22 Q For instance, it mentions V. K. Rowe 23 graduating in 1937 and having worked for the 24 past 23 years in toxicological research. 25 A Yes, sir. 108 1 Q I add that up to 1960. Here's 2 Mr. Olson - K. J. Olson. What was his first 3 name, Kenneth? 4 A Kenneth. 5 Q It mentions that he got a Ph.D. from 6 Michigan State in 1947 and had spent 13 years in 7 research: seven with Upjohn and the last six at 8 Dow. 9 A That's probably the only markers 10 you're going to find because I think he went 11 directly from Michigan State to Upjohn and 12 directly from Upjohn to Dow. That's my 13 recollection of Ken's history. So it's 1960 is 14 what that comes out to, which is probably what I 15 would have said if you had asked me to guess. 16 Q They don't let me get away with asking 17 you to guess very much, although I don't know 18 why not if you qualify it. 19 This mentions Mr. Hoyle here - for the 20 past 13 years has been engaged in environmental 21 research; now in charge of that program in the 22 biochemical research laboratory at Dow. 23 A Right. 24 Q So, would you say 1960 is probably as 25 close as we can get with the dating of this? 109 1 A Well, if you add 13 onto 1948, it 2 comes out to '61. 3 Q Is this Donald D. McCollister 4 illustrated here? 5 A Yes. 6 Q It gives him 15 years of tox research 7 and presently in charge of long-term dietary 8 feeding studies, which I assume he may have been 9 doing for two or three years or so by the time 10 of this paper. 11 A I think the 15 years includes that 12 because the dietary feeding studies was a part 13 of toxicology. 14 Q I guess you worked with all of these 15 people in your job. 16 A All in the same department. 17 Q Charles G. Cramer, M.D. Now, what - 18 A He's a medical doctor in the Medical 19 Department. 20 Q Was he ever the medical director? 21 A No. 22 Q Just on the staff? 23 A He was a staff doctor. 24 Q This has him associated with 25 industrial medicine for the past nine years, 110 1 graduated in '49. That still gets us in the 2 same ballpark, I suppose. 3 Did he stay with the company through 4 the years that you were there - Dr. Cramer? 5 A He may have left a little ahead of me. 6 He did leave the company. 7 Q Had he reached retirement age? 8 A I don't know how old Chuck was. He 9 may not have been 65 because the last I heard, 10 he was a physician at an Indian reservation out 11 West, so he is still around and able to practice 12 medicine. I don't know what his age is. 13 Q Did you hear what state he was in? 14 A Yeah, I think it was North Dakota. 15 Q Not too far west, then. It's a little 16 west of here. 17 A Uh-huh. 18 Q Mark Wolfe - did he stay with the 19 industrial hygiene section for very long? 20 A He never was in industrial hygiene. 21 He's a toxicologist. 22 Q Did he stay with the company for long, 23 then? 24 A Until he retired at 65. 25 Q I see. This seems to cover a variety 111 1 of topics here: household chemicals, industrial 2 chemicals. Here is Dr. Irish on carcinogenicity. 3 A Uh-huh. 4 Q Do you recall -- This would have been 5 an area that you would have talked about from 6 time to time - industrial chemicals, I suppose. 7 A True. 8 Q Would that be true? That's 9 illustrated in here. 10 MR. BLANKS: I'm going to 11 label this as "60 0000 Dow," seeing 12 as how 1960 is the approximate 13 date, plus or minus a year or so. 14 A I wouldn't quarrel with that. 15 (REPORTER'S NOTE: THE 16 EXHIBIT MARKED BY MR. BLANKS WAS 17 RETAINED BY HIM AT THE CONCLUSION 18 OF THE DEPOSITION.) 19 20 (By Mr. Blanks) 21 Q Do you recall, Mr. Hoyle, were there 22 other times that your talks of the group of you 23 gentlemen from Toxicology and Industrial Hygiene 24 got printed up in this nice fashion or -- 25 A This is the only one I know of. It 112 1 was put together. I suppose it was kind of a 2 P.R. effort as well as a scientific effort, in 3 an effort to give people scientific information 4 or a feeling for science. And I think that may 5 account for the fact that it was done up rather 6 carefully and passed out to all of these members 7 of the Texas whatever it was. And I think that 8 would account for its having been done in this 9 way. I don't think there's another like it. 10 Q So, our best knowledge today would be 11 that this booklet with the title "Symposium on 12 Toxicology" would represent the talks presented 13 down in Texas around 1960 that we have been 14 discussing here? 15 A That's right. 16 Q You will be happy to know that at 17 least one copy made its way to the Haskell 18 Laboratory Library, which is where this one came 19 from. 20 A Good. I'm not surprised. 21 Q Sir? 22 A I'm not surprised because V. K. was in 23 contact with Haskell at the time. 24 Q There must have been some times when 25 you were called upon to deal with people from 113 1 government that were engaged in regulating or 2 writing regulations to cover Dow products and 3 activities; isn't that right? 4 A Yes. 5 Q Can you place this in time for us? 6 A The last time that I was involved 7 therefore, I suppose, the first one that comes 8 to mind - was a NIOSH committee that was working 9 up criteria for the chlorine standard, and that 10 was probably - well, certainly had to be late 11 '60's or early '70's because of the date when 12 NIOSH got started. 13 Q Can you explain to me what you're 14 talking about when you speak of the criteria for 15 a standard or the criteria document? 16 A Yeah. Under OSHA there was a 17 requirement that NIOSH prepare basic information 18 needed to set standards. And chlorine - there 19 was a committee for each standard, I believe, 20 and I was involved in the one for chlorine. 21 Q Could you flush it out a little bit 22 with some examples of what kind of information 23 goes into making the criteria for setting 24 standards? What sort of things are you looking 25 at? 114 1 A You're looking at whatever can be 2 found in the literature that relates to either 3 animal experiments or to environmental 4 measurements or results of health surveillance, 5 that kind of thing. 6 Q Sort of an attempt to gather together 7 everything that had been published about - 8 A To gather together and evaluate as 9 best we could what was available. 10 Q And then try and come to some agreed 11 number for a standard, exposure standard? 12 A A number, and then I believe that 13 there was also a write-up that summarized the 14 basic information that went along with that 15 standard. It was quite a long while ago, so I 16 can't remember exactly what it looked like. 17 Q But just generally in terms of the 18 process - 19 A This information went to OSHA and they 20 promulgated standards. It was a recommendation 21 to OSHA, I think is another way to say it. 22 Q So, while working with this committee, 23 I suppose it was, you members would have tried 24 to come to a consensus and make a recommendation 25 for a standard? 115 1 A It was a matter of evaluating the 2 information that we could find that was put 3 before us and make a recommendation, that's 4 right. 5 Q Pretty much doing what you had done in 6 Dow along with the medical and the toxicology 7 people? 8 A That's true. 9 Q Except on a bigger scale, a national 10 level? 11 A It was on a national level. Maybe it 12 was more wordy, if not more sophisticated. 13 Q I suppose that there were other Dow 14 scientists who did similar things in terms of - 15 A I don't know. 16 Q --- helping develop criteria documents 17 and standard recommendations? 18 A I don't know. I don't remember is 19 what I should say. I don't remember. I 20 remember that one in particular. 21 Q But you don't remember any other Dow 22 scientists - 23 A Other than myself, no, I don't. 24 Q --- doing such things? 25 A No, I don't remember. Whether V. K. 116 1 did or not, I don't know. 2 Q It wouldn't surprise you to learn - 3 A Not at all. 4 Q --- that he had? 5 A I don't remember. 6 Q You referred to this NIOSH chlorine 7 standard as the last one you can remember, the 8 most recent in time. Could you recall for us 9 any others? 10 A I don't remember -- I'm fuzzy at this 11 point because I don't remember what I may have 12 worked on for some other entity other than the 13 government. 14 Q And what other entities might that 15 conceivably have been if there were any? 16 A I was on a committee for the American 17 ANSI, I think they call it - American National 18 Standards something or other. I think this was 19 chlorinated hydrocarbons - to set a standard for 20 the use of chlorinated hydrocarbons for cleaning 21 metals. 22 Q Can you think of any other type thing? 23 A Those are the only two that come to 24 mind right now. 25 Q I think you told us earlier that you 117 1 never got involved in the setting of standards 2 for asbestos exposure - 3 A No. 4 Q --- or the revision of that standard? 5 A No. The only contact I had with that 6 standard was to use it. 7 Q Do you recall, sir, if any of the 8 trade associations you knew Dow to belong to or 9 Dow employees to belong to were engaged in any 10 efforts to, let's say, influence or direct or 11 suggest standards or changes in standards for 12 occupational exposures to toxic materials? 13 A I had no contact with trade associations 14 in that sense except the Chlorine Institute. 15 That's in my other testimony. 16 Q The Chlorine Institute. That sounds 17 kind of strange. Was it a big organization, 18 quite a few companies involved? 19 A Well, those who made chlorine and a 20 few who used it. And there was some pretty good 21 research done on chlorine from an industrial 22 hygiene point of view. 23 Q Did you have anything to do with any 24 of the activities of the MCA or CMA? 25 A I was never on a committee of either 118 1 of those organizations that I can remember. 2 Q Certainly Dow would have had members 3 or at least maybe the company was a member of 4 the - 5 A Quite likely. In fact, probably. I 6 don't know if they were. 7 Q Mr. Hoyle, there were some studies 8 done that we have learned of in the '50's that 9 were published in the late '50's, around the 10 time you did your first asbestos monitoring, 11 that came from another trade association called 12 the American Petroleum Institute. And these 13 studies dealt with the incidence of cancer in 14 people working in the petroleum industry. 15 Did any of these papers ever reach you 16 or your office that you know of? 17 A Didn't have a whole lot of contact 18 with the American Petroleum Institute; like 19 none, that I can remember. If you asked me if 20 any of the papers came to my desk, I can't 21 remember any specific paper in that time. 22 Q Do you recall getting any kind of 23 materials that were sent out by the medical 24 advisory committee of the API that dealt with 25 industrial hygiene matters or disease in the 119 1 petrochemical work force? 2 A I don't remember any specifically. 3 Q Who was your main contact at Dowell 4 during the late '50's and early '60's; do you 5 remember? 6 A I had contact with their safety 7 director. His name was Perry Arnot. 8 Q How do you spell his last name? 9 A A-r-n-o-t, I think. 10 Q He was the safety director? 11 A And anything else having to do with 12 safety. He was a one-man Safety Department. 13 Q I guess he would have sent information 14 on to you whenever he had information that he 15 thought would be helpful to you, like you would 16 do to him? 17 A I don't remember sending him anything. 18 I remember him more seeking advice; but that's 19 what I recall mostly of our contacts. 20 Q Did you ever hear of anybody at Dow 21 being involved in the proposed revision of the 22 asbestos standards? 23 A I don't recall that we were ever 24 involved in that, the reason being we probably 25 had nothing to contribute. I can say positively 120 1 that as far as industrial hygiene is concerned, 2 there was no such contact. I shouldn't speculate 3 about anything beyond that. 4 Q And your clear recollection is that 5 before 1970 at least, you had no reports of 6 asbestos-related disease in any Dow employees or 7 former employees. Is that true? 8 A That's true. 9 Q Nor any reports of allegations of 10 asbestos disease in Dow employees or employees 11 by 1970? 12 A I had had none. 13 Q That's what I'm asking. 14 A If you're asking me, I had heard of 15 none, and I don't know beyond that point. 16 Q When was it that the epidemiology 17 study was done that contrasted the Dow 18 pipefitters with the Dow insulators? Would that 19 have been in the '70's? 20 A That wasn't in the '70's. It was 21 before that. It was when Jerry Ott first came 22 to work for Dow. It was the first exercise he 23 did. He was a biostatistician, and the study 24 involved Medical Department records and did not 25 involve any industrial hygiene records, as I 121 1 remember. That's my recollection of that. 2 Q He was working strictly on what 3 records he could find in the doctors' files? 4 A Doctors' files, medical records. 5 Q And his study was not based on any 6 sort of quantitative exposure data about either 7 the insulators or the pipefitters or whoever was 8 the control group? 9 A We didn't have that kind of data, so 10 he could not have used it. I'm talking now 11 about good industrial hygiene studies. 12 Q Yes, sir. 13 A We had some information that you have 14 already asked me about having to do with 15 specific things that pipe coverers did. And, of 16 course, it had to do, as I told you, with pipe 17 coverers. 18 Q Yes, sir, what I have been calling 19 insulators. 20 A Yeah. Okay. 21 Q Well - 22 A That's our jargon. Yeah, they are 23 insulators. 24 Q And I have been using that because 25 "pipe coverer" sounds too much like "pipefitter," 122 1 and I just wanted to distinguish them clearly. 2 A They covered the pipes, and the 3 fitters put them together. 4 Q Most of the insulating at Dow was 5 actually of pipes? 6 A Pipes and vessels. 7 Q And vessels as well. Okay. So the 8 guy you call a pipe coverer did both? 9 A He might have covered some vessels. 10 Q Sure. 11 MR. ALMQUIST: Could we take 12 a short break? 13 MR. BLANKS: Certainly. 14 (AT 2:10 P.M. A RECESS WAS 15 TAKEN. AT 2:22 P.M. THE DEPOSITION 16 RESUMED AS FOLLOWS:) 17 18 (By Mr. Blanks) 19 Q Let me trouble you about a few more 20 trade association organizations, just in the off 21 chance that Dow was a member. 22 Do you recall or know of any insulation 23 related associations, such as the National 24 Insulation Manufacturers Association, something 25 of that nature, to which Dow belonged at any time? 123 1 A Not that I know of. 2 Q When was it that Dow began making the 3 urethane insulation products or the -- Is it 4 isocyanates? 5 A Well, I guess I can't put a time on it 6 for you; but it was probably in the '60's. 7 Q Is there anything that you can recall 8 to connect Dow in any way with the Asbestos 9 Textile Institute? 10 A Nothing. That one I would be real 11 surprised if there was any connection. 12 Q Dow never made any textile products, 13 did they? 14 A Not out of asbestos. 15 Q I mean any at all. 16 A Well, no. I don't think we made any 17 textiles at the Dow Chemical Company. 18 Q Did you make chemicals that ended up 19 being used in textiles, like a nylon or a rayon 20 or something like that? 21 A Well, that's why I answered you the 22 way I did. There may have been some of the 23 resins that got into the textile business. 24 Q If Dow sold the resins, none of them 25 included any mineral fibers? 124 1 A No. 2 Q Like asbestos? 3 A No. 4 Q And Dow didn't manufacture any 5 finished fiber goods like we mean when we speak 6 of textiles? 7 A I don't remember any -- I guess there 8 was one that for a while may have reached the 9 market. 10 Q What would that have been? 11 A It was called Rovana. 12 Q R-o-v-a-n-a? 13 A Uh-huh. 14 Q Just for curiosity's sake, what was it 15 and what was it used for? 16 A Well, it was a fiber that was, I 17 suppose, woven into something or other. 18 Q A chemical fiber? 19 A It would have been a plastic fiber. 20 Q Do you have any association in your 21 mind between Dow and the Rubber Manufacturers 22 Association or any of its prior forms or 23 organizations? 24 A I don't know quite how to answer your 25 question. I do not know that Dow ever belonged 125 1 to that organization. I can answer that much. 2 I don't know about it. 3 Q Is there anything more that comes to 4 mind regarding the Rubber Manufacturers 5 Association? 6 A Not unless we started to try to think 7 of all the things rubber manufacturers use, and 8 I'm not an expert at that point. I don't know. 9 I know that to make rubber, you have to have 10 something to make it, but I can't answer your 11 question. I am not knowledgeable at that point. 12 Q So, it is logically possible that Dow 13 might have sold some raw materials or some 14 chemicals that would be used in that industry, I 15 suppose, is what you are allowing? 16 A ~ I'm saying I couldn't say it's 17 impossible, but I don't know. 18 Q But you don't recall anything that 19 suggests that Dow ever belonged to the Rubber 20 Manufacturers Association? 21 A I have no knowledge that the company 22 ever belonged to it. That's to my personal 23 knowledge. 24 Q You do remember Dow being a member of 25 the National Safety Council -- 126 1 A Oh, yes. 2 Q --- even back when you were first 3 employed there? 4 A Oh, yes. 5 Q And it had been, to your understanding, 6 for a number of years? 7 A I don't know how long before I came to 8 work that Dow had been a member. But I can say 9 with certainty that Dow was a member of the 10 National Safety Council in 1944. 11 Q Were there any times when the Zurich 12 Insurance Company did any kind of audits or 13 surveys of a Dow facility that you know of? 14 A Yes. 15 Q Could you tell us about those, please, 16 sir? 17 A Zurich was the Dow insurance carrier 18 for a couple of years, and one I remember is an 19 industrial hygiene survey of a foundry, magnesium 20 foundry, that we operated. 21 Q This was one that you went on along 22 with Mr. Warren Cook? 23 A That's correct. 24 Q And this would have been after you 25 became an industrial hygienist? 127 1 A Yes. 2 Q So, after 1948? 3 A Yes. 4 Q But not too much after, I suppose. 5 A Fairly soon after, I would think. 6 Q Was Mr. Cook at that time, then, 7 associated with or an employee of Zurich 8 Insurance Company? 9 A He was in charge of their industrial 10 hygiene unit. 11 Q He after that moved to the University 12 of Michigan and set up a program in industrial 13 hygiene, did he not? 14 A Yes, sir. 15 Q I suppose they would know at the 16 university, but do you recall approximately when 17 that would have been? 18 A As far as I can recall, that's where 19 he went from Zurich, but I don't remember dates 20 too well. Probably in the '50's. 21 Q Can you recall any other industrial 22 hygiene survey or inspection that Zurich did at 23 Dow besides the magnesium foundry? 24 A That's the only hands-on activity that 25 he had at Dow. The rest of his contacts would 128 1 have been in the way of audits or their 2 programs. 3 Q I'm sorry, the rest? 4 A In the way of audits of our program, 5 "What are you doing and how are you doing it," 6 that kind of thing. 7 Q Could you elaborate on that just a 8 little bit, what an audit consisted of? An 9 audit of the industrial hygiene program? 10 A Well, as they were done by Cook for 11 Zurich, they weren't very extensive. And he 12 asked whatever questions he wanted to ask about 13 our industrial hygiene program. I have no idea 14 what he decided to ask or what he did ask. But 15 it was in that context that he was interested in 16 what we were doing. 17 Q Was this something that would happen 18 periodically? 19 A Oh, I think they were the carrier for 20 two, three, four years. 21 Q Maybe longer? 22 A Not longer, I don't think. I don't 23 think he came around more than once a year. 24 Q So, he would come around and visit 25 with you about the industrial hygiene program at 129 1 Dow? 2 A Uh-huh. 3 Q Odds and ends, "What are you doing, 4 how are things going, what have you been working 5 on"? 6 A Uh-huh. 7 Q That general professional discourse? 8 A He did whatever he needed to do to 9 satisfy himself that we were adequate. 10 Q Do you remember that there were times 11 when he would make recommendations to you and 12 say, "Harold, I think you ought to be doing this 13 and such or maybe you ought to be looking at 14 that," or anything like that? 15 A I don't think he ever had much to say 16 in that -- I think we were doing pretty much 17 what he had in mind. 18 Q After Zurich ceased to write the 19 insurance for Dow, who took their place; do you 20 remember? 21 A I don't know. There were a number of 22 different insurance companies. I had no contact 23 with the Insurance Department. My recollection 24 is he was the only industrial hygienist from the 25 insurance company that we saw. 130 1 Q That you ever saw? 2 A Uh-huh. 3 Q So, when Mr. Cook and Zurich no longer 4 had the Dow account, the industrial hygiene 5 audits from the outside ceased? 6 A From the insurance companies, yes. 7 Q Nobody else was doing any kind of 8 industrial hygiene audits of you, were they? 9 A Well, not unless you want to call 10 visits by the state engineer that we talked 11 about this morning. I don't know that that was 12 an audit, but I saw him, so ... 13 Q So, they would drop by and - 14 A We weren't operating in a vacuum, but ... 15 Q They weren't coming by in response to 16 any complaint; they were just coming by to - 17 A Sometimes. And once in response to a 18 complaint maybe. I don't remember. Not very 19 often, anyway. 20 Q Do you remember that Zurich ever put 21 any conditions on Dow, you know, relating to 22 industrial hygiene? 23 A No. 24 Q Or health hazards? 25 A I don't remember any such thing. 131 1 Q Would Mr. Cook prepare any sort of a 2 written report of his meetings with you or 3 survey or audits that would end up crossing your 4 desk thereafter? 5 A I don't remember any reports. Zurich 6 was on the - was Dow's carrier when I first 7 became an industrial hygienist, in that period 8 of time. 9 Q And you don't know how far back 10 in time they had the coverage? 11 A I really don't know. I'm having 12 trouble answering your questions because of how 13 long ago it was and also there's a point that I 14 don't know whether they were on it or not. I 15 just don't know. 16 Q Do you know if Metropolitan was 17 providing coverage for Dow employees in the 18 early part of the '40's when you began working 19 for the company? 20 A As soon as we had employee health 21 insurance, Metropolitan was the carrier. That I 22 remember. 23 Q Did they remain the carrier for a 24 number of years or was it a short-lived thing, 25 too? 132 1 A Well, I think they still are. I don't 2 know the intricacies of the insurance business, 3 but I think they are. 4 Q I just ask it because their name 5 appeared in the 1941 Texas Division safety rules 6 and regulations on Page 3. It just mentions 7 insurance and Metropolitan Life, Health and 8 Accident Insurance Company. Let me see if that 9 jives with your recollection. 10 A Yeah, that's the insurance company 11 that has been the carrier of the employee 12 insurance program all the time that I have been 13 associated with such a program; in other words, 14 a participant, I should say. 15 Q Yes. Do you remember, sir, ever 16 having the benefit of any consultations from the 17 Metropolitan Life Insurance Company's Medical 18 Department or its industrial hygienist, if it 19 had any such thing? 20 A I don't know whether they had one or 21 not. 22 Q How about from their doctors? 23 A I had no contact with the doctors. 24 Q Do you remember that information from 25 Metropolitan came to you at Dow or to your 133 1 colleagues at Dow that would deal with 2 occupational health or occupational disease? 3 A I don't recall -- I don't recall any 4 such information. 5 Q Mr. Hoyle, you've told us how in the 6 late 1950's - '58, '59, thereabouts - you did 7 some monitoring of asbestos exposures and found 8 levels that you thought were higher than you 9 wanted to have in the plant while the men were 10 sawing or tearing off old insulation. 11 A I don't think that I can agree with 12 your terminology because those measurements were 13 not measurements of the degree of exposure of 14 people. Those were specifically set up so that 15 I could get some data that would allow me to 16 tell the Safety Department which jobs I thought 17 they ought to have respiratory protection on. 18 It's a little different than making an 19 evaluation of somebody's health hazard. I 20 didn't do that. 21 Q That's fair. Did Safety actually ask 22 you to go take some samples of - 23 A My recollection of the thing is they 24 didn't ask me to take samples. What I recall is 25 that Harold Lindsey called me up and said, "We 134 1 want to talk about respiratory protection in the 2 shops in general." And in the shops was the 3 covering crew. And I felt a need to get a 4 little bit of data before I answered him on 5 which ones of their jobs they maybe ought to 6 have respiratory protection. And I made a 7 recommendation, in my recollection, that I 8 considered to be very conservative at the time, 9 partly because I did - got the numbers from a 10 method that counts a lot more dust than the 11 regular method. It didn't bother me a bit at 12 the time because I was being conservative. 13 Q And that was using the Bausch & Lomb 14 tool? 15 A The Bausch & Lomb tool. It never was, 16 in my opinion, a suitable piece of equipment to 17 count dust and compare with five million 18 particles. And I didn't use it that way. I 19 used it as a measurement of dirtiness, and in a 20 way that's what I was looking at. 21 Q Because the values you get using the 22 Bausch & Lomb - 23 A Were much too high. You see much more 24 particles with that technique. 25 Q I see. 135 1 A And many of those are probably too 2 small to be significant. 3 Q And you were understanding that 4 actually you had enough magnification, then, 5 with that tool to see particles that were too 6 small to cause any harm to the lung? 7 A Let's say optics, the magnification 8 plus the type of illumination. 9 Q That was a dark light - dark field - 10 A Dark field technique. 11 Q --- technique. Well, going back then 12 to the 1958 or ' 59 effort of measuring for 13 dirtiness in the shop so you could advise the 14 insulator crews where they should be using 15 respiratory protection -- And we've talked about 16 that at length. I'm just wondering, using that 17 information and what you found there, when was 18 it after that time that Dow made it its rule 19 that contractors' employees working in the Dow 20 plants should also have to use respiratory 21 protection when they were sawing or tearing off 22 asbestos insulation? 23 A I don't have that information. The 24 Safety Department administered that program. 25 Q So, that would have been up to the 136 I Safety Department to make that rule and to - 2 A That would have been the only contact 3 in that context with the contractor. 4 Q Would have been through the Safety 5 Department? 6 A Through the Safety Department. 7 Q And i f - 8 A My function was to act as a source of 9 information if asked. 10 Q Did you ever act as a source of II information with respect to potential contractor 12 exposures in Dow premises? 13 A I don't believe that I had any -- I 14 think that whole thing was handled with 15 information that was already available to the 16 Safety Department for internal use. So I had no 17 direct contact at that point. 18 Q Do you know if Dow, through the Safety 19 Department or otherwise, ever made it the rule 20 that contractors' employees working in Dow 21 plants had to be warned about the potential 22 health hazards of asbestos dust exposures? 23 A At what time? 24 Q Well, whenever. 25 A Well, to begin with, the relationship 137 1 between Dow and the contractors was that Dow 2 would provide the contractors with a work 3 environment that was not hazardous due to the 4 presence of chemicals. But the contractors were 5 pretty much independent as far as things 6 associated with their trade: in other words, 7 insulating materials for pipe coverers or 8 insulators and so on. That's my recollection of 9 the way it was. 10 Later on there was developed a 11 contractor safety program that I had very little 12 contact with. 13 Q Did that contractor safety program 14 begin before you left the company? 15 A Yes, in Midland. I'm not acquainted 16 with -- I presume probably at the same time 17 other places, but I don't know. 18 Q Am I right then in concluding that you 19 don't really know one way or the other whether 20 contractors and their employees were told in 21 that same time in the late '50's that 22 respiratory protection should be worn while 23 sawing or removing, tearing off asbestos 24 insulation? 25 A What I know about it myself is that 138 1 the information was given to a Dow safety 2 engineer for use in a Dow meeting. Other than 3 that, I can't say, except to say - as I just did 4 that the information was available when the 5 program did start that you know about. 6 Q The contractor safety program? 7 A Contractor safety program. 8 Q Is it true that the first knowledge 9 that you have of asbestos health warnings or 10 proper handling instructions going to 11 contractors and their employees was by means of 12 the contractor safety program that came in the 13 '70's? 14 A So far as I know, that is the conduit 15 for that information. That's all down there. 16 Q Mr. Hoyle, in dealing with the Dow 17 Corning Company, was there any kind of routine 18 program for giving to them or sending to them 19 industrial hygiene information or toxicology 20 information, or were you simply there on an 21 as-needed basis to help them when asked? 22 A We acted as consultants when we were 23 asked. 24 Q Was there ever a time when you were 25 asked by the Corning Company - not Dow Corning - 139 1 but the other partner or.-2 A No. 3 Q --- member of that venture for 4 industrial hygiene help or services? 5 A I never had any conversation with 6 anybody from Corning that I can remember. 7 Q Do you believe that the results of 8 Mr. Jerry Ott's epidemiology study comparing the 9 pipe coverers, insulators, and pipefitters and 10 others were ever passed on outside of Dow, like 11 to any other organization or trade association 12 or professional group? 13 A Not to my knowledge. 14 Q Surely this study by Mr. Ott was 15 written up in a paper or report of some form, 16 was it not? 17 A Well, I have seen it in the documents 18 from my last deposition. 19 Q Now you're trying to embarrass me. 20 A No, it's there. I think so. 21 Q But this information, to your 22 knowledge, never went, for example, to the 23 American Petroleum Institute? 24 A I don't remember that it was ever 25 published. 140 1 Q Published outside of Dow? 2 A Outside of Dow. What I'm saying is it 3 could have been and I wouldn't have known 4 necessarily. 5 Q Did you make the acquaintance at any 6 time of Roy S. Bonsib? 7 A No. 8 Q From Standard Oil? 9 A No. 10 Q How about Clyde Berry? 11 A I know Clyde Berry well. 12 Q Did you know him in the late '40's 13 when you began the practice of industrial 14 hygiene? 15 A I don't remember when I first met him. 16 It was at an AIHA meeting. It may have been the 17 first one, for all I know. I've known him over 18 the years. 19 Q Do you remember him in any context 20 with Standard Oil for however briefly? 21 A No. 22 Q You don't know one way or the other? 23 A Not one way or the other. I knew him 24 as an industrial hygienist and as a guy I saw in 25 the hospitality rooms and the like. You know, 141 1 I'm just saying socially. 2 Q Yes, sir. Mr. Hoyle, besides 3 recommending the use of respiratory protection 4 for the insulators sawing and removing asbestos 5 insulation, can you recall any other 6 recommendations you made to perhaps control or 7 eliminate the exposures that those men in those 8 crafts were having at Dow? 9 A No, I didn't make any other 10 recommendations. 11 Q Was that group of workmen then using 12 other traditional measures to control the amount 13 of asbestos dust generated when they were doing 14 their work, such as wet methods for handling the 15 material? 16 A Whether they ever wet some down or 17 not, I don't know. Based on what I knew about 18 it from this rather limited dust counting that I 19 did, plus the fact that I had observed them at 20 work casually, this all led me to believe that 21 the use of respirators under those two 22 circumstances that I mentioned and for the 23 coverers themselves would be more than enough to 24 cover their exposures. That's a professional 25 judgment based on observations and limited data, 142 1 you might say. And the medical records seem to 2 have borne me out. 3 Q At least - 4 A I'm -- In other words, at this point 5 my judgment is that that was never properly 6 done, and the only -- You see, pipefitters, 7 operators in the area and so on, as a part of 8 this same judgment would not have been at risk 9 based on the data we had at the time - I mean on 10 the standards that were available at the time 11 or the guides, I should say. And that's why 12 nothing more was recommended. 13 Q And the only data that you had in the 14 late '50's was what you got from your few Bausch & 15 Lomb samples? 16 A That I described to you, that's right. 17 It confirmed my notion that there wasn't a high 18 priority problem with asbestos with our pipe 19 coverers because not all insulation, by any 20 means, has any asbestos in it. Most of it 21 doesn't. In fact, the dustiest of it doesn't. 22 Q You're speaking of the insulation used 23 by Dow in its plants that its own people put on? 24 A That's all I know anything about. 25 Q That is to say the insulation Dow 143 1 mechanics actually installed? 2 A Yeah, which would have been the same, 3 I presume, that contractors installed on similar 4 equipment, because Dow insulators normally were 5 at work making small repairs on bigger 6 installations that would have gone in when the 7 thing was built in the first place; and smaller 8 projects - they may have done the whole thing. 9 So I don't think there would be a difference as 10 far as materials are concerned, not to my 11 knowledge. 12 Q There was no time while you were in 13 charge of Industrial Hygiene that dust 14 monitoring was done of other crafts working with 15 asbestos insulation or in the vicinity of the 16 asbestos insulators, was there? 17 A No, I have just explained why we 18 didn't. And that was a low priority in my 19 professional time. We spent the majority of our 20 time doing other things. 21 Q And so, by 1976 when you retired, Dow 22 had still not gathered any hard data about the 23 dust concentrations that might be faced by other 24 crafts besides insulators who would be working 25 in the plants? 144 1 A No, we didn't, because we knew what 2 the case was by our - in our worst case 3 situation. So, it would have been a low 4 priority thing. 5 Q The worst case scenario being what you 6 had measured - 7 A People that actually worked with the 8 material. By that time we had a good study, in 9 my opinion, by DeGesero that told us what the 10 levels of exposure were. 11 Q The 1969 study? 12 A Something like that. 13 Q And that was the one that found 14 average time-weighted exposure levels at 4.9 15 million particles for indoor work and 4.7 16 average for outdoor work? 17 A Those are reasonable numbers. I have 18 forgotten them. Below 5, but close to 5. 19 MR. ALMQUIST: Whatever the 20 report reflects -- 21 A Whatever the report says, that's 22 right. 23 Q You mean I could be proven wrong 24 again? No, I think I recited them accurately. 25 A Off the top of my head I don't know 145 1 what the numbers are. I. do know they 2 approached, but did not exceed, that. I can say 3 that with certainty. 4 Q There is no data that you gathered at 5 Dow prior to your retirement, anyway, that would 6 show that the exposures of other crafts working 7 near, below or beside insulators would 8 necessarily be lower or significantly lower than 9 those measurements you made of the insulators 10 themselves, is there? 11 A Based on my experience as an 12 industrial hygienist over the years, my judgment 13 at the time was it wasn't worth doing the 14 measurements. 15 Q Because if you reduced the exposure 16 levels for the insulators, then necessarily you 17 would have lower levels for any bystanders that - 18 A They would have gotten the highest 19 exposures, I'm sure; and certainly more 20 frequently than would have any other group of 21 people in the area where they might be. 22 I guess what I'm saying is that there 23 weren't pipe coverers that were every day where 24 they were at work. There's a large number of 25 pipefitters, for instance, and a relatively 146 1 small number of pipe coverers. 2 Q Speaking of the Dow work force? 3 A Yeah, that's right. So they just 4 wouldn't be around because there weren't that 5 many of them. They were around enough to do 6 their job. Maybe another way to say it is that 7 certainly not all piping is covered, is what I'm 8 saying. 9 Q And certainly your staff never took 10 any dust samples around contractor employees who 11 were - 12 A No. 13 Q --- working with asbestos or handling 14 it? 15 A We did not. 16 Q Did you ever give any instruction to 17 contractors or contractor employees on the need 18 for monitoring for dust exposures? 19 A As I have told you, I had no contact 20 with the contractors except to the contractor 21 safety program. And I was not asked to do it, 22 so I didn't do it. 23 Q Okay. 24 A And if I -- Well ... 25 Q If you had been asked, what then? 147 1 A I would have told them the same thing 2 I told the Dow people: That information was 3 already available in the program. 4 Q In the Dow program, you mean? 5 A Yes, and, therefore, in the contractor 6 safety program as soon as it got started. 7 Q And available actually in the Safety 8 Department at Dow from whenever you gave them 9 that information? 10 A From that time I was there. 11 Q So they could have shared that same 12 information with the contractor - 13 A Probably did. 14 Q --- that the safety men had available 15 for Dow employees? 16 A True. 17 Q How high up in the Dow management 18 hierarchy were you when you retired, I mean 19 relative to - 20 A My boss was Edsel Blair who retired as 21 a vice-president. I don't know whether he had 22 gotten that title when he was my boss or not. 23 It was sort of about that time. 24 Q How many vice-presidents were there at 25 Dow around then? 148 1 A Beats me. I don't know. 2 Q Was it a company that had many vice 3 presidents, like Braniff used to have more 4 vice-presidents than it had planes or ... 5 A No, it's not quite like a bank. There 6 were not very many. His responsibility was 7 Health and Environmental Services. 8 Q Wasn't there a time when you worked 9 for or technically under V. K. Rowe? 10 A I think two different times. He got 11 there ahead of me and he progressed a little 12 faster, on that basis. 13 Q Was Health and Environmental Services 14 a position he filled at some time or other? 15 A V. K. was -- Before Blair was my boss, 16 V. K. was my boss. 17 Q But he wasn't a vice-president? 18 A No. He also worked for Blair. Our 19 curves went something like this: Here was V. K.; 20 here was Toxicology and here was Industrial 21 Hygiene. And they would be parallel and then 22 they would be nonparallel. 23 Q I see. 24 A And so V. K. was my supervisor until 25 there was a reorganization, and I became a 149 1 director in the laboratory. 2 Q Where did the Safety Department fit 3 into this organization when you retired? 4 A The Safety Department was part of the 5 Personnel Department. 6 Q Did that Personnel Department have its 7 own V.P., too? 8 A I don't remember the organization at 9 that time. They did if you went far enough up 10 the line; everybody does, but the safety -- I 11 can't remember who McCutchin -- McCutchin was 12 the safety director at the time I retired, and I 13 don't know who he reported to. 14 Q Where did medical fit into this 15 scheme? 16 A They were in the Personnel Department. 17 Then they became both in Personnel and Health 18 and Environmental Services. I believe that's 19 the way it is now. I don't know. There were 20 two functions, is what I'm trying to say to you. 21 Q And then Toxicology was also under 22 Health and Environmental Services? 23 A Uh-huh. 24 Q Most of the time? 25 A Uh-huh. 150 1 Q Or its equivalent? 2 A It started out being Biochemical 3 Research and went through a number of different 4 names. The functions stayed the same. 5 Q At any rate, as you have told us, the 6 Safety Department was separate from the 7 Industrial Hygiene Department? 8 A As far as lines of management are 9 concerned, they went to the General Manager by a 10 different route than we did. 11 Q And you didn't have any authority or 12 control over the Safety Department, did you? 13 A I'm not sure I had control over 14 anybody. 15 Q I know the feeling. 16 A I tried to influence them. 17 Q But I mean - 18 A There was no line responsibility. 19 There was a shared responsibility that I have 20 described to you in terms of the four groups 21 regularly having contacts. 22 Q Yes, sir. You shared information, but 23 you didn't -- These four groups didn't have the 24 same function to play in the company, and they 25 acted independently in doing their specific and 151 1 particular jobs? 2 A I think that's fair to say. 3 Q So, Medical didn't really tell you 4 what to do, and you didn't tell Safety what to 5 do and so forth; but you did share information? 6 A It probably was more than just sharing 7 information. We probably influenced each 8 other's decision. 9 Q I would think it goes without saying 10 that among rational men, the sharing of 11 information must surely influence. 12 A That's what I'm trying to say. 13 Q That's the idea. Yeah. But, for 14 instance, you haven't been able to tell us what 15 the Safety Department did specifically with - 16 A On a day-to-day basis, no. 17 Q Or what they did with recommendations 18 you made to them - 19 A I didn't have a policing function. Is 20 that what we're getting at? 21 Q Well, no, sir. I mean you've been 22 careful to make clear the things about which you 23 have actual knowledge, yourself, and those about 24 which you don't. 25 A Yes. 152 1 Q And I just wanted to clarify that. 2 A Okay. 3 Q A lot of the things or maybe most of 4 the things the Safety Department did are outside 5 your personal knowledge? 6 A On a day-to-day basis, that is true. 7 Q And the same would be true, wouldn't 8 it, about the Medical Department and what did 9 doctors do and - 10 A I certainly had nothing to do with the 11 treatment of patients or any of that kind, which 12 is what they did more than anything else. 13 Q But it would also apply to their 14 medical monitoring program when it existed? I 15 mean you're familiar with it generally, but - 16 A I was familiar with it and a party to 17 its organization in the terms that I have 18 already described to you. 19 Q Right. But, for example, you don't 20 know what the total extent of the reports or the 21 documents that the doctors might have prepared 22 would be or what they did with them or who they 23 sent them to or didn't send them to, would you? 24 A I had no control over where they sent 25 reports. 153 1 Q Or any knowledge, really, of where 2 they went, other than the ones that came to you 3 yourself? 4 A That's right. If they had to do with 5 my business,' then I probably saw them. 6 Q And the same thing would be true to 7 some extent with the Toxicology Department: 8 that that which they did and they wrote up and 9 sent to you, you knew of. But you don't really 10 know personally about all of the things that Tox 11 did? 12 A I'm probably closer to knowing what 13 they did than I am the Medical Department 14 because we are both in the same department. I 15 was a member of the staff of that group. 16 Q But not having been present at all of 17 the meetings that all of the chiefs of 18 toxicology or the assistant chiefs went to, you 19 couldn't - 20 A What they said in their meetings, 21 unless they wrote it up in the minutes I 22 wouldn't know about it. 23 Q Right. And, certainly, the same would 24 be true with respect to the actions of any of 25 the officers of Dow that did not report to you - 154 1 and I guess that would be all of them. 2 A That's all of them. 3 Q Would you remind me, please, Mr. Hoyle, 4 where was it that the 1969 industrial hygiene 5 study of insulators took place? What plant was 6 that in? 7 A Midland. 8 Q Was the report from that survey 9 provided to the Michigan State Health 10 Department? 11 A Probably not. They weren't on our 12 regular distribution list. 13 Q I think you already told me that you 14 don't recall that that report of that survey was 15 ever provided to anybody outside of Dow. 16 A It was not published, to my knowledge. 17 Q Nor was a copy of it, to your 18 knowledge, sent, for example, to the American 19 Petroleum Institute? 20 A No. I don't know why we would have. 21 We had no contact with them that I know of in 22 this plant. As I told you before, I had no 23 business with the American Petroleum Institute. 24 Q You were unaware that one of the Dow 25 divisions was, in fact, a member in the API? 155 1 A If they were, I was unaware of it. 2 Q And that would have been - 3 A The Texas Division, you're talking 4 about? 5 Q Actually I was speaking of the Dowell 6 Division. 7 A They may have been. I don't have any 8 knowledge about what they were members of. It 9 seems logical. 10 Q Now, you left Dow in 1976, you said 11 repeatedly, and that was the end of the year? 12 A No, it was the end of September. The 13 Dow rule is the end of the month you get to be 65, 14 you commence being a retiree. That's the way 15 it was. So my life of leisure started on 16 November 1st, 1976. 17 Q You certainly would not claim to have 18 any kind of knowledge about what Dow has done 19 with any of your files or records that you left 20 there in 1976 when you retired, would you? 21 A I would have no way of knowing 22 anything about them. I just haven't been there. 23 I should clarify that last statement. I did 24 some consulting three different summers after I 25 retired, so the statement I made is totally true 156 1 after that point in time. Up until then I did 2 see the files, those summers. 3 Q What areas did you consult in those 4 three times? 5 A It was mostly a matter of bringing 6 order out of chaos as far as the early records 7 are concerned. I tried to help bridge the time 8 from the first industrial hygiene data to the 9 more modern which would have been '77, '78, '79, 10 the way things were being done then. And the 11 data had been acquired with far different 12 techniques just because far different techniques 13 were available then, and I was working in that 14 area. 15 Q What was it that triggered this effort 16 to straighten out the old records - 17 A I hadn't gotten the job done when I 18 retired, I think is the right way to say it. 19 It's the kind of thing that we had wanted to get 20 done and had pretty well done, and that's to get 21 the information in the position so it could be 22 handled on computers. 23 Q This was an effort that began before 24 you left in '76? 25 A Oh, yes, I promoted the idea and did a 157 1 little, and so did others. And we had improved 2 over the period of time that I was there, so I 3 didn't do a heck of a lot with what had happened 4 ten years prior to my retirement, but rather 5 some of the old stuff I was working with. 6 Q Was this in response to any change in 7 the regulations - 8 A None. 9 Q --- that Dow was operating under? 10 A None. Strictly part of our attempt 11 from day one to study environments in such a way 12 that we would have a good record of what was 13 there. 14 Q And the goal was to put in computer 15 form all of the records of early surveys? 16 A That's all we were trying to do. 17 Q Surveys only, reports as well? 18 A Not reports. Just data. We're 19 talking data. 20 Q Just numbers? 21 A Just numbers. 22 Q Well, after three years of part-time 23 on this, were you able to bring order out of 24 chaos? 25 A I think so. I haven't had any complaints 158 1 in the last 12 or 15 years. 2 MR. BLANKS: Let's take a 3 quick break here. 4 (AT THIS TIME A BRIEF RECESS 5 WAS TAKEN, AND THE PROCEEDINGS 6 THEREAFTER RESUMED AS FOLLOWS:) 7 8 (By Mr. Blanks) 9 Q Mr. Hoyle, do you recall whether Dow 10 had any of the oil companies as its customers, 11 sir? 12 A I have no knowledge of who the Dow 13 customers were. It's a big company with a lot 14 of different products. I can't answer a 15 question like that. 16 Q Did you have personal contact with the 17 industrial hygienists from the oil companies 18 when you were a member of the American 19 Industrial Hygiene Association? 20 A I did with some of them; maybe with 21 all of them. I don't know. 22 Q Are there any specific ones that we 23 haven't talked about already that pop into your 24 mind readily? 25 A I can't remember. 159 1 Q Either individuals or companies? 2 A I can't remember who we have talked 3 about today. I'm confused by what we talked 4 about today and that other deposition I just 5 read. 6 Q Or we can count that one, too, so we 7 don't have to - 8 A None that I recall one way or the 9 other. 10 Q Did Dow have any other chemical 11 companies among its customers? Did it buy or 12 sell products with duPont or from duPont or to 13 duPont, for example? 14 A I'm sure the answer to that is "yes." 15 Q Did you have any dealings with their 16 industrial hygienists? 17 A I was acquainted with them. I have 18 talked with them about sampling techniques and 19 the like. I have asked questions concerning 20 their materials; for instance, work that Haskell 21 had done or work that they had done in their own 22 plants on materials that we both had onsite. In 23 that context I talked to them. 24 Q In a similar context did you have any 25 dealings with men from Union Carbide Corporation? 160 1 A I'm well acquainted with people from 2 Union Carbide. The answer would be the same. 3 Q Do you remember Knute Ketchum from 4 Carbide? 5 A I do. 6 Q You knew him from professional 7 associations and - 8 A That's right. 9 Q Because you were working in Industrial 10 Hygiene since 1948 until 1976 and had your 11 responsibilities there and were not an officer 12 of Dow - 13 A Yes. 14 Q --- isn't it fair to say that your 15 personal knowledge really is limited to 16 knowledge about what you and your own employees 17 did or didn't do in your job, rather than what 18 Dow as a company did or may not have done and so 19 forth? 20 A I think -- How do I answer that? I 21 didn't spend all my time in the industrial 22 hygiene laboratory. The nature of industrial 23 hygiene caused me to be acquainted with 24 particularly the manufacturing of Dow materials. 25 We had another program which is mentioned in the 161 1 other deposition which had to do with customer 2 service industrial hygiene, I think I called 3 it at that time, which caused me to know quite 4 a bit about Dow materials and to make some 5 contribution to the process of letting our 6 customers know about the materials, even with 7 suggestion as to how to control exposures. 8 Q With respect to communiques that Dow 9 or any of its executives may have had with other 10 chemical companies or oil companies or 11 petrochemical companies about any number of 12 things, I mean you don't claim to have any 13 personal knowledge of that, do you? 14 A Well, not unless it had to do with 15 industrial hygiene. Then I would say that it's 16 quite likely - although I can't make any 17 guarantees - that I would have known about 18 anything specifically having to do with 19 industrial hygiene. 20 Q You think it likely? 21 A It is quite likely. 22 Q But you can't say it with certainty? 23 A No, I didn't follow all the officers 24 of the company around. So for a positive answer 25 that I knew everything that happened, obviously 162 1 the answer to that is "no." 2 Q Certainly with respect to whatever the 3 Dow Legal Department was doing in its dealings 4 with other companies or with other lawyers or 5 with their insureds, you wouldn't have any 6 reason to have any personal knowledge of that 7 activity, would you? 8 A Unless it had to do with industrial 9 hygiene and industrial hygiene records, in which 10 case I was in charge of that and I would have 11 known about anything that they were doing in 12 that area that required action as far as I'm 13 concerned. 14 Q Including, say, the purging or 15 destruction of your industrial hygiene records? 16 That's something, for example, you would have 17 had knowledge of? 18 A I would have had knowledge of, that's 19 right. 20 Q At least up until 1976 when you 21 retired? 22 A You'd have to stop in 1976 as far as I 23 am concerned. 24 Q Now, your connection or involvement or 25 contact with the document retention/destruction 163 1 program of Dow, which you think came into being 2 sometime in the '70's, did you say? 3 A I think I said I didn't know. 4 Q Let's start over, then. 5 Your involvement to the extent there 6 was any involvement with the Dow document 7 retention and destruction program was limited, 8 wasn't it, to just your reviewing the sort of 9 files that you thought could be purged from 10 industrial hygiene and telling - 11 A My contact with that program was just 12 that. It had to do with industrial hygiene. 13 Q And you decided which industrial 14 hygiene records were going to be kept and which 15 could be disposed of? 16 A Yes, and I characterized that for you. 17 Q But you don't know about any other 18 aspects of the document retention or destruction 19 program as it might have related to other 20 departments in the company, correct? 21 A No, I can only speak about industrial 22 hygiene records. 23 Q And, again, only as of or through 24 1976? 25 A Uh-huh. Yes. 164 1 Q Where did Mr. Ott come from before he 2 joined Dow? 3 A I don't know. 4 Q I have the sense that he transferred 5 in from another company or hired in from another 6 company. 7 A He may have worked somewhere else. He 8 was hired by the Medical Department. 9 Q In your affidavit from February 10th 10 of 1993, you state that Dow never destroyed 11 records of premises inspections or preliminary 12 toxicology or epidemiology reports because of 13 the conspiracy or because of the lawsuit. And 14 I'm curious whether you are distinguishing 15 between preliminary and final tox reports, 16 for example. 17 A Well, in the process of writing a 18 report, you write a report and then it is 19 reviewed by yourself and others, and you end up 20 with a well marked-up report usually. And then 21 an acceptable final copy is arrived at which you 22 sign, and I'm not sure that working papers were 23 not destroyed. In fact, I know they were, just 24 working papers that you would scribble on, 25 misspelled words and things of that kind. 165 1 Q So, you are making clear then that 2 preliminary tox or epi reports would have been 3 disposed of as working papers and draft papers, 4 but not - 5 A Not necessarily. -The working papers 6 might have been, is what I'm trying to say. In 7 fact, I would consider they usually would be, 8 just because of appearances; but the content 9 would not have been changed. 10 Q So, to the extent preliminary reports 11 were destroyed, it was just because they were 12 not needed anymore and there was a later version 13 done? 14 A It was because the more recent version 15 was more readable, probably. 16 Q Was there a period, Mr. Hoyle, when 17 the policy of Dow or the instructions from the 18 Legal Department or that branch of the company 19 were to the extent that you weren't to worry 20 about contractor employees; just leave them 21 alone and take care of Dow people only? 22 A Never heard that at all, no. 23 Q Were you ever told that the contracts 24 were written with the contractors to where Dow 25 wouldn't have any responsibility for contractor 166 1 employees working in your plant? 2 A No, never got into liability much 3 in the practice of industrial hygiene. The 4 emphasis as far as I was concerned was -- I've 5 already described that. 6 Q And that is to be sure that you - 7 A Be sure we had the information 8 necessary to make materials without hurting 9 ourselves and similar information for the 10 customers so they wouldn't hurt themselves and 11 information enough so we could take care of our 12 neighbors. And that would include railroads and 13 truckers and things like that. 14 Q And also people that Dow invited into 15 its plants to do maintenance work or construction 16 work, I suppose? 17 A I have told you that the responsibility 18 as I understood it was to be sure that the work 19 environment would be safe from the standpoint of 20 the chemical content. Also early on prior to 21 the contractor safety program, it was my 22 understanding that things that were associated 23 with the practice of the trade were something 24 that they assumed for themselves and didn't want 25 us to have anything to do with, actually. This 167 1 is like what kind of wrench they were going to 2 use to take a bolt off or whatever kind of 3 hazards. They were competent and had their own 4 safety programs. 5 Q And Dow required them to have a safety 6 program? 7 A I don't think Dow required them to, 8 but I know they did have. 9 Q But as to any material that was 10 already in the plant or that Dow was causing to 11 be brought into the plant, if you had 12 information about its health hazards - 13 A If it was specific to the Dow plant, 14 certainly we felt a great responsibility to 15 furnish information. If it had to do with their 16 trade - and to be specific, because I'm thinking 17 in terms of the insulators - we would have 18 expected that they would be knowledgeable 19 concerning the materials with which they were 20 working and how they should handle them early 21 on. Now, to what extent that changed with the 22 contractor's safety program, I am not the one to 23 talk to. 24 Q Did you also expect the contractor 25 workers from other trades - be they laborers or 168 1 electricians or carpenters - to have a full 2 appreciation of the health hazards of materials 3 like asbestos insulation they would encounter in 4 the Dow plant while they were doing their job? 5 A I would have thought the contractor 6 would be responsible. They were all his 7 employees. You know, they weren't Dow 8 employees. They were on Dow property. And 9 whether we had a responsibility to say that we 10 didn't have any chemicals in the environment or 11 forms of energy, for that matter, that they 12 wouldn't know about, we felt a great 13 responsibility at that point. 14 Q Thinking that you certainly knew more 15 about those hazards - 16 A That's exactly right. 17 Q --- than the contractor? 18 A So we accepted responsibility at that 19 point. Frequently what happened was that they 20 were given clean equipment and areas to work in. 21 Q And if you knew of potential for 22 hazardous exposures in the work area that you 23 were handing over to them, if you had not 24 eliminated the potential for that exposure, then 25 you felt obliged to tell them about it? 169 1 A We would have told them exactly about 2 it. I've done that myself in terms of 3 respiratory protection. 4 MR. BLANKS: Mr. Hoyle, I 5 think that covers everything we 6 need to cover, and I'll pass the 7 Witness at this time. 8 9 EXAMINATION BY MR. ALMQUIST: 10 Q I have a couple of quick questions. 11 You have mentioned a few times about the 12 contractor safety program. Do you know when 13 that contractor safety program actually started? 14 A I don't know exactly. 15 Q You were asked some questions about 16 evaluating hazards, and I think some of those 17 questions dealt with testing capabilities. 18 Before 1970 did you in the toxicology 19 lab or industrial hygiene lab have the 20 capability to test dusts of any sort? 21 A No. You're talking about animal 22 testing? 23 Q Yes, sir. 24 A The answer is "no." 25 Q And wasn't that the testing you were 170 1 talking about earlier today? 2 A Yes. 3 Q Evaluating risks. Mr. Blanks talked 4 to you about a sympoisum on toxicology, and you 5 had a chance to look briefly at that material. 6 What was the topic that you spoke on 7 at that symposium? 8 A Industrial chemicals, industrial 9 hygiene aspects. 10 Q Was that article directed in any way 11 towards asbestos exposure or dust exposure? 12 A No. 13 Q You also have testified about some 14 work that was done in 1959, monitoring around 15 pipe coverers. And you have described cutting 16 and also you have described tearing out of 17 insulation. 18 Can you tell us what you meant and 19 what you found with respect to tearing out and 20 your recommendations with respect to tearing 21 out? 22 A Well, it was in the context of pipe 23 coverers or insulators. And the recommendations 24 were made considering the possibility that they 25 might be doing that a good portion of the day. 171 1 In other words, it wasn't that there was a great 2 risk in a short-term few minutes of tearing out. 3 That is also what we were aiming at. We were 4 thinking in terms of the whole day for pipe 5 coverers. 6 MR. ALMQUIST: I'll pass the 7 Witness. 8 9 RE-EXAMINATION BY MR. BLANKS: 10 Q Mr. Hoyle, speaking of your symposium 11 on toxicology from around 1960, you told 12 Mr. Almquist that your talk on industrial 13 chemicals wasn't directed to asbestos exposure 14 or dust exposure. 15 A Well, asbestos exposures for certain 16 we were not talking about, and it was largely 17 aimed at the vapor exposure of people. 18 Q You're not saying that the general 19 principles which you articulated in your talk on 20 industrial chemicals and industrial hygiene 21 aspects of dealing with them specifically 22 excluded dust exposures or asbestos exposure, 23 are you, sir? 24 A Let me put it this way: I think in 25 preparing that thing, the term "asbestos" never 172 1 entered my mind. I know what the orientation 2 was, and it had to do with toxicology at Dow, 3 and toxicology at Dow was by mouth, by 4 inhalation of vapors, by skin, but not -- We had 5 no capability as far as dust is concerned. We 6 did have capability to measure the amounts of 7 dust in the air of chemicals. 8 Q So, are you saying to us now that the 9 general principles you discussed in this paper 10 that you had a chance to look over at the break 11 and the concepts of maximum allowable 12 concentrations and sampling for exposures don't 13 apply today? 14 A Not having gone through that thing in 15 detail, I don't know if I remember well enough 16 to answer you. I do remember well enough to 17 know that the orientation of the symposium was 18 towards Dow's activity in toxicology. And I was 19 talking with respect to the use of that 20 information in the work environment. And it 21 should be looked upon as general, whatever I 22 have said there, and not specific to any 23 chemical. 24 Q Be it vapor -- 25 A These are general -- This is general. 173 1 I can't remember whether I used examples like 2 chlorinated hydrocarbons in the paper or not. I 3 might have and might not have. I don't know. I 4 can't remember. I didn't look at it that 5 carefully. But I guess the point that I'm 6 trying to make is whatever is said there is not 7 specific to insulating trades or to asbestos. 8 Q Or to any other trade? 9 A Yeah. 10 Q Or to any specific material? 11 A I think that's true, but I'm not that 12 sure because I may have used organic solvents as 13 examples in there somewhere. 14 For instance, we talked lots of times 15 about odors, you know. And I suspect that in 16 there somewhere it says something about what you 17 need to do in the way of monitoring when you 18 don't have warning properties. I don't think 19 that would apply very well as far as asbestos is 20 concerned, the statement that I made there. It 21 applies far better to carbon tetrachloride where 22 you do have the capability to monitor continuously. 23 I know that up until 1976 nobody had the capability 24 to monitor and count dust continuously. So if that 25 statement is in there - and I think it is - it 174 1 would be ridiculous to apply it to asbestos 2 because the capability didn't exist. 3 Q To monitor continuously? 4 A Yeah. It just didn't exist. That I 5 know. I don't know if it does now or not. I 6 don't think so. 7 Q Would it surprise you to know that 8 during the time period you were giving this 9 talk, that Dow personnel were actually doing 10 continuous monitoring in other Dow workplaces 11 for other toxic dusts such as beryllium? 12 A I don't think they were doing it on a 13 continuous basis. I think I know what you're 14 talking about. We took long-term samples. By 15 definition that's not what I'm talking about in 16 the statement that I think is in there. In 17 other words, if you take a sample for all day, 18 that's a long-term sample, but it's not a 19 continuous sample. It doesn't describe 20 continuously the environment. What I'm talking 21 about when I say "continuous" is a system that 22 allows you to follow the ups and downs during 23 the day. It's a control technique. 24 Q I see your point. 25 A I get into a long-winded discussion, 175 1 but that's what I was having trouble answering 2 your question. 3 Q You would not say, though, that either 4 asbestos dust or silica dust have good warning 5 properties in themselves, would you? 6 A Oh, no, I wouldn't say they do. You'd 7 have to gather data enough to satisfy yourself 8 that your environment was all right. Neither 9 would I say that you needed to continuously 10 sample them because I don't think it can be 11 done. 12 Q You don't think it can be done? 13 A That's right. 14 Q You say you had an inhalation 15 toxicology capability in your labs not before 16 1970? 17 A Not for dust. 18 Q There were labs that did such 19 toxicology work - 20 A Yes, but I'm just talking about Dow. 21 Q I mean they were contract labs that 22 did this type of dust inhalation toxicology work 23 that has been reported in the literature back 24 into the '30's? 25 A Yes, sir. That's right. 176 1 Q Even down in Detroit some experiments 2 were done by Mr. Bradley and published before 3 the beginning of World War II, you may recall. 4 A Yes, other people knew how to do it. 5 It wasn't important enough to us to have 6 invested in it. 7 Q And, finally, your paper on industrial 8 chemicals in the symposium on toxicology does in 9 any event set out general basic principles - 10 A Yeah, the general basic principles I 11 stand by. They haven't changed much. 12 MR. BLANKS: Very good, sir. 13 Thank you. 14 (WHEREUPON, THE DEPOSITION 15 WAS CONCLUDED.) 16 17 18 19 20 21 22 23 24 25 1 1 B-126,986 2 RUSSELL ALLEN, ET AL * * IN THE DISTRICT COURT OF 3 VS. * JEFFERSON COUNTY, TEXAS * 4 AMERICAN PETROFINA, ET AL * 60TH JUDICIAL DISTRICT 5 A-134,614 6 FRENCH HICKS, ET AL 7* * IN THE DISTRICT COURT OF VS. 8 * JEFFERSON COUNTY, TEXAS * BETHLEHEM STEEL CORP., ET AL * 58TH JUDICIAL DISTRICT 9 10 B-141,242 11 ROOSEVELT SCOTT * * IN THE DISTRICT COURT OF 12 VS. * JEFFERSON COUNTY, TEXAS * 13 AMERICAN OPTICAL CORP., ET AL * 60TH JUDICIAL DISTRICT 14 A-136,143 15 KEITH GIBLIN, ET AL 16 * * IN THE DISTRICT COURT OF VS. 17 * JEFFERSON COUNTY, TEXAS * MOBIL OIL CORPORATION, ET AL * 58TH JUDICIAL DISTRICT 18 19 E-141,216 20 JOSEPH E. BARNARD, ET UX * IN THE DISTRICT COURT OF * 21 VS. * JEFFERSON COUNTY, TEXAS * 22 ALLIED-SIGNAL, INC., ET AL * 172ND JUDICIAL DISTRICT 23 VIDEO DEPOSITION OF JACK E. PETERSON, P.E., Ph.D. 24 TAKEN ON MARCH 26TH, 1993 25 2 1 A-140,498 2 JOYCE A. BORNE, ET AL * * IN THE DISTRICT COURT OF 3 VS. * JEFFERSON COUNTY, TEXAS * 4 ALLIED-SIGNAL, INC., ET AL * 58TH JUDICIAL DISTRICT 5 6 7 8 9 10 11 VIDEO DEPOSITION OF 12 JACK E. PETERSON, P.E., Ph.D. 13 14 15 16 17 18 19 20 On March 26th, 1993, the video deposition of 21 Jack E. Peterson, a Witness in the above-styled cause, 22 was taken at the instance of the Plaintiffs at the 23 Marriott Suites, 701 A. Street, San Diego, California, 24 pursuant to Stipulation of Counsel contained herein. 25 3 1 Those counsel present, representing their 2 respective client or clients in the cause of action or 3 causes of action in which he/she has filed an answer, 4 were as follow: 5 JOSEPH C. BLANKS 6 Reaud, Morgan & Quinn 801 Laurel Street 7 Beaumont, Texas 77701 8 Counsel for Plaintiffs 9 10 STEVEN W. STRANDBERG 11 Hobson & Ferguson 2190 Harrison Street 12 Beaumont, Texas 77701 13 Counsel for Plaintiffs 14 15 DAVID LEDYARD 16 Strong, Pipkin, Nelson & Bissell 1400 San Jacinto Building 17 Beaumont, Texas 77701 18 Counsel for Defendant, CHEVRON U.S.A, INC. 19 20 21 DAVID COTELLESSE Ellison, Schweinle, Parish & Beerbower 22 1001 Fannin Street, Suite 3800 Houston, Texas 77002 23 Counsel for Defendants, 24 AMERICAN PETROLEUM INSTITUTE, NATIONAL PETROLEUM REFINERS ASSOCIATION and 25 TEXAS CHEMICAL COUNCIL 4 1 DAVID FUNDERBURK 2 Funderburk & Funderburk 2727 Allen Parkway, Suite 1080 3 Houston, Texas 77019 4 Counsel for Defendant, WGM SAFETY CORPORATION, d/b/a 5 WILLSON SAFETY PRODUCTS 6 7 MARK WILLINGHAM 8 Fairchild, Price, Russell, Thomas & Haley 413 Shelbyville Street 9 Post Office Box 1336 Center, Texas 75935-1336 10 Counsel for Defendant, 11 THORPE INSULATION SERVICE COMPANY 12 13 CHARLES KELLY 14 Wayne Davidson & Associates 1900 W. Loop South, Suite 300 15 Houston, Texas 77027 16 Counsel for Defendant, COMPLETE ABRASIVE BLASTING SYSTEMS, 17 INCORPORATED (CABS) 18 19 JAMES R. SCRIVNER 20 Smith, Shew & Scrivner 120 E. 14 21 P. O. Box 1373 Ada, Oklahoma 74820 22 Counsel for Defendant, 23 HARWICK CHEMICAL CORPORATION 24 25 5 1 J. SCOTT HOWARD 2 Cowles & Thompson One American Center, Suite 777 3 909 E.S.E. Loop 323 Tyler, Texas 75701 4 Counsel for Defendants, 5 FULLER AUSTIN INSULATION COMPANY and WARREN AUSTIN GAGE 6 7 8 TARA HANLEY REYNOLDS Vinson & Elkins 9 2001 Ross Avenue, Suite 3700 Dallas, Texas 75201-2916 10 Counsel for Defendant, 11 U. S. SILICA COMPANY 12 13 DENNIS ALENIK 14 Alenik & Associates 12 Greenway Plaza, Suite 1200 15 Summit Plaza West Houston, Texas 77046 16 Counsel for Defendant, 17 BIG THREE INDUSTRIES, INC. 18 19 FRANKLIN A. POFF, JR. 20 Gooding & Dodson Post Office Box 1877 21 310 Texarkana National Bank Building Texarkana, Texas 75504 22 Counsel for Defendant, 23 GREFCO, INC. 24 25 6 1 THOMAS H. STEWART, JR. 2 Strasburger & Price, L.L.P. 901 Main Street, Suite 4300 3 Dallas, Texas 75202 4 Counsel for Defendant, TRAVELERS INSURANCE COMPANY 5 6 7 LEONARD J. DECKER, III Tekell, Book, Matthews & Limmer 8 909 Fannin Street, Suite 3600 Houston, Texas 77010 9 Counsel for Defendant, 10 TRIPLE B. CORPORATION 11 12 STEVEN W. CELBA 13 Borgelt, Powell, Peterson & Frauen, S.C. 735 North Water Street, Fifteenth Floor 14 Milwaukee, Wisconsin 53202-4188 15 Counsel for Defendant, OWENS-CORNING FIBERGLAS 16 CORPORATION 17 18 LISA A. KETAI 19 Hirsch, Glover, Robinson & Sheiness 917 Franklin & Main Street 20 Houston, Texas 77002-1779 21 Counsel for Defendants, KELCO SALES & ENGINEERING COMPANY, 22 RUEMELIN MANUFACTURING COMPANY, U.S.D. CORPORATION and WILLSON, A DIVISION OF 23 INCO SAFETY PRODUCTS 24 25 7 1 KIMBERLY A. BISHOP 2 Martin & Herring 1302 McGowen Avenue 3 Houston, Texas 77004 4 Counsel for Defendant, FLEXO PRODUCTS, INC. 5 6 7 GEORGE PAPPAS McLeod, Alexander, Powel & Apffel 8 802 Rosenberg Street Galveston, Texas 77553-0629 9 Counsel for Defendant, 10 LONE STAR INDUSTRIES, INC. 11 12 PHILLIP E. KOEHNKE 13 Gordon & Rees Embarcadero Center West, 12th Floor 14 275 Battery Street San Francisco, California 94111 15 Counsel for Defendant, 16 M. H. DETRICK COMPANY 17 18 ARTHUR ALMQUIST 19 Mehaffy & Weber, A P.C. 500 Dallas, Suite 1200 20 Houston, Texas 77002 21 Counsel for Defendant, DOW CHEMICAL COMPANY 22 23 24 25 8 1 RONALD HANCOCK 2 Hays, McConn, Rice & Pickering 400 Citicorp Center 3 Houston, Texas 77002 4 Counsel for Defendant, MINE SAFETY APPLIANCES COMPANY 5 6 7 RICK SMITH, CSR Charlotte Smith Reporting, Inc. 8 235 Orleans, Kyle Building Beaumont, Texas 77701 9 10 11 IN ATTENDANCE: 12 DUNCAN A. STUART, representing DOW CHEMICAL COMPANY 13 14 15 VIDEOTAPE OPERATOR/TECHNICIAN: GARY BREWTON 16 909 Laurel Street Beaumont, Texas 77701 17 18 19 20 21 22 23 24 25 9 1 ST I P U LATI O N 2 3 4 IT IS STIPULATED AND AGREED between Counsel 5 for the parties hereto that the deposition of the 6 Witness named herein is taken pursuant to Notice 7 attached hereto. 8 9 10 IT IS FURTHER STIPULATED AND AGREED that 11 the Witness may sign said deposition before any duly 12 authorized and acting Notary Public for the appropriate 13 area in which signature is obtained. 14 15 16 IT IS FURTHER STIPULATED AND AGREED that 17 this deposition, or any part of same, may be used upon 18 the trial of this cause with the same force and effect 19 as if the Witness were present in Court and testifying 20 in person. 21 22 23 IT IS FURTHER STIPULATED AND AGREED that 24 all objections, other than those that relate to the form 25 of the question and responsiveness of the answer, are 10 1 hereby preserved and may be made at the time any 2 testimony herein is sought to be offered upon the trial 3 of this cause, despite no objection having been made at 4 the time the testimony was taken. 5 6 7 IT IS FURTHER STIPULATED AND AGREED that 8 Rick Smith, a Certified Shorthand Reporter in and for 9 the State of Texas, may act as a Certified Shorthand 10 Reporter in and for the State of California for purposes 11 of swearing the witness in this deposition. 12 13 14 IT IS FURTHER STIPULATED AND AGREED that 15 the original deposition will be given To Joseph C. 16 Blanks for safekeeping and for use at the time of trial. 17 18 19 20 21 22 23 24 25 11 1 EXH I BITS I N D EX 2 3 4 DEPOSITION OF JACK E. PETERSON, P.E., Ph.D. 5 6 7 March 26th, 1993 8 9 10 11 EXHIBIT NO. DESCRIPTION PAGE 12 13 14 280207 "Resume" of Jack E. 15 Peterson, P.E., Ph.D. 213 16 17 18 19 20 21 22 23 24 25 12 1 JACK E. PETERSON, P.E., Ph.D., 2 having been duly sworn, testified as follows, to-wit: 3 EXAMINATION BY MR. BLANKS: 4 Q. Good morning, sir. Would you please 5 introduce yourself to the Ladies and Gentlemen of the 6 Jury. 7 A. I am Jack Edwin Peterson. 8 Q. How old a man are you, Mr. Peterson? 9 A. Just 65 a couple of months ago. 10 Q. And what is your profession, sir? 11 A. I am a consulting industrial hygienist. 12 Q. How long have you been doing that kind of 13 work? 14 A. I -- I have been in industrial hygiene 15 since 1953. I have been a consultant since - oh, about 16 1970 or so. 17 Q. So that we can get acquainted, would you be 18 kind enough to just summarize in a chronological manner 19 your educational background leading on up to when you 20 started to - to go to work as an industrial hygienist. 21 A. I have a Bachelor's degree with honors in 22 chemical engineering from Washington State College, now 23 the university, in 1951; a Master of science in chemical 24 engineering from the University of Michigan in 1952, 25 and a Ph.D in industrial health from the University of 13 1 Michigan in 1965 - 1968. I will get these years 2 properly. I -- That is my educational background. I 3 have done other things obviously. 4 Q. Now, I see I have already gotten off on the 5 wrong foot with you by not referring to you as 6 Dr. Peterson. You will have to forgive me. 7 A. You are forgiven. 8 Q. Oh, thank you. Could you tell us then 9 about your work career and again in summary fashion -- 10 A. (Interrupting) All right. 11 Q. --- so that we can have an overview. 12 A. After I got my Masters degree in 1952, I 13 went to work for Dow Chemical in Midland, Michigan on a 14 special assignments program. This is a program where I 15 worked six weeks here and six weeks there for about a 16 year. My last such assignment was with the industrial 17 hygiene group. And I stayed with that group for the 18 remainder of my time at Dow until I left in 1965 to go 19 back to school to work on my Ph.D. in industrial health. 20 After receiving my Ph.D., I went across the 21 lake to Milwaukee where I had a joint appointment with 22 Marquette University and the Medical College of 23 Wisconsin. 24 In 1980 I left the - 1975 I left the 25 Medical College in favor of half-time consulting. In 14 1 1980 I left the medical - or left Marquette University 2 in favor of full-time consulting. 3 In the meantime in 1977 I had accepted a 4 10-percent-of-the-time appointment as professor in 5 occupational and environmental health sciences at the 6 University of Illinois. And that sort of petered out 7 over the years. I'm still called a visiting professor 8 with that school. 9 And in that period of time I also became a 10 clinical professor of preventive medicine at the Medical 11 College of Wisconsin. In 1984 I began doing some 12 teaching at the University of Wisconsin Parkside campus 13 in addition to consulting full time. 14 I -- I actually taught at Parkside for 15 three years as a professor of allied health. I left 16 Parkside in 1986, and I have been simply a full-time 17 consultant ever since then. 18 Q. I missed the date when you left Marquette 19 and began full-time consulting. I'm sorry. 20 A. 1980. 21 Q. And I gather you are still working as a 22 consultant in the industrial hygiene area today? 23 A. I am. 24 Q. Since you left Dow, have you served as a 25 consultant for Dow? 15 1 A. Yes. 2 Q. Are you currently serving as a consultant 3 for Dow in any matters? 4 A. Only in litigation. 5 Q. What - what areas of - or what sort of 6 problem areas does the litigation that you are 7 consulting on involve? 8 A. Currently there is only one case, and 9 that's one of the ones that you are involved in, the 10 Brown case; and I am retained as an expert by Dow. 11 Q. How long have you been functioning on - on 12 that case? 13 A. Oh, a week maybe, two weeks. 14 Q. Have you been retained by any other 15 companies in litigation as a consultant currently? 16 A. At any one time I'm probably working on 12 17 to 15 cases, and that is certainly the situation today. 18 Q. Any of these cases out of Beaumont? 19 A. No, none except for the Brown case. 20 Q. Have you been in the past hired as a 21 consultant or an expert in connection with a Beaumont 22 asbestos case called Thibodeaux? 23 A. No, sir. 24 Q. You don't recall --25 A. (Interrupting) I don't recall it. 16 1 Q. --- roughly this time last year being 2 being hired as a - as a testifying expert in connection 3 with that mesothelioma case out of Jefferson County, 4 Texas? 5 A. Gee, I may have been. I don't recall it. 6 Sorry. 7 Q. Do you keep your litigation files after the 8 cases are disposed of? 9 A. Generally not. 10 Q. Are you hired to - to testify in connection 11 with this Beaumont case that we have been speaking of, 12 the current one? 13 A. Nobody has talked about testimony. I'm 14 simply consulting with the attorneys representing Dow at 15 the moment. 16 Q. So, you understand that you are serving as 17 a consulting rather than a testifying expert? 18 A. I may testify. I just don't know yet. 19 Q. I see. 20 A. We haven't talked about that. 21 Q. What - what kind of papers and things did 22 you look at to prepare for your deposition today? 23 A. Just the Brown deposition transcript. 24 Q. Did you bring a copy of that with you 25 today? 17 1 A. No. 2 Q. Whose testimony was it that you looked at? 3 A. Mr. Brown. 4 Q. And what - what did you learn from reading 5 that transcript that - that you can share with us now? 6 A. Not a great deal. It's verydifficult to 7 get much information from that transcript. Of most 8 interest was that Mr. Brown had apparently spent some 9 time in Michigan at a Dow establishment. The amount of 10 time is not at all apparent from his deposition. It was 11 in 1964, however, I believe. 12 Q. And you were just barely still with Dow at 13 that time? 14 A. Yes, I left Dow in '65, actually in August. 15 Q. So, you spent the next roughly two to three 16 years working on your doctorate? 17 A. Yes, it took me three years. 18 Q. You weren't employed during that time? 19 A. No, I was not. 20 Q. Nor doing any consulting work for Dow 21 during that time? 22 A. No, I did no consulting work of any kind in 23 that period. 24 Q. Did you form any opinions about Mr. Brice 25 Brown and his exposures at the - or alleged exposures at 18 1 the Dow plant in Michigan? 2 A. I have some opinions. Mr. Brown was a 3 pipefitter and apparently was working on new 4 construction wherever he was working. He said both 5 Saginaw and Mayville. I don't know of any Dow 6 establishment in Saginaw. And I don't know of any in 7 Mayville, Michigan. I assume it was Midland. I - 8 Since he was working in new construction as a 9 pipefitter, my opinion is that his exposures to asbestos 10 would have been minimal. 11 Q. What do you base that on, sir? 12 MR. PAPPAS: Excuse me, 13 Mr. Blanks. Could I ask you to speak 14 up just a hair, please, so that we can 15 hear you down here. 16 MR. BLANKS: You may ask. 17 MR. PAPPAS: I'm asking. 18 MR. BLANKS: Okay. 19 A. The knowledge that I have of the exposures 20 of insulators handling insulation that contains asbestos 21 is that probably most of them were exposed to 22 concentrations of asbestos well below the threshold 23 limit value for asbestos at that time. And also my 24 knowledge as an industrial hygienist tells me that 25 people who were not directly handling the material were 19 1 exposed undoubtedly to far less than were the 2 insulators. 3 (By Mr. Blanks) 4 Q. What aspects of your experience leads you 5 to that last conclusion? 6 A. Several. First is the fact that I have had 7 occasion to measure breathing zone concentrations of 8 people doing various things, and to measure 9 concentrations of the same kinds of things in the 10 breathing zones of people who weren't doing those 11 things. Secondary people always have much lower 12 exposures than the primary people. So, that's been my 13 direct experience as an industrial hygienist. 14 Furthermore, I know something about the 15 habits of small particles or fibers drifting in the air, 16 and know that in general they disperse as a gas or a 17 vapor would; and the further you get from the source, 18 the smaller the exposure that you will have because of 19 this dispersion. 20 Q. You've mentioned measuring the breathing 21 zones of people doing different tasks. And I know you 22 are speaking somewhat generally now. Could you be more 23 specific. Have you measured - taken dust samples in the 24 breathing zones of people doing asbestos insulation 25 work? Is that what you meant to say? 20 1 A. No. In fact, I have not. It has been 2 other kinds of work. 3 Q. What other kinds of work would we be 4 talking about that you are generalizing from? 5 A. In the asbestos area, measuring the 6 breathing zones of people around where 7 asbestos-containing gaskets are being handled. These 8 are not insulation materials, but they do contain 9 asbestos. I have measured the breathing zones of 10 welders for welding fume and the breathing zones of 11 people in the vicinity of welders for welding fume. 12 Those are the two circumstances that come to mind. 13 Q. So, you have done no monitoring of people 14 working directly with asbestos-containing thermal 15 insulations or the cement products or the - the other 16 related products in - in an industrial setting; is that 17 so? 18 A. That's true. The only - the closest I came 19 to that was directing some work in that area. 20 Q. When and where would that have been, sir? 21 A. That was in 1984 at the Long Beach Naval 22 shipyard where I directed the activities of a group of 23 industrial hygienists monitoring the removal of 24 asbestos-containing materials from the battleship 25 MISSOURI. 21 1 Q. What sort of techniques were being used in 2 that task to control the dust from the - the handling or 3 removal of the insulation? 4 A. The generalized modern techniques were 5 being used; that is, the insulation was soaked with what 6 is called amended water prior to be - prior to being 7 touched. The people doing the job wore what is 8 euphemistically called moon suits and respiratory 9 protective equipment while doing the job. 10 Q. And the respiratory protective equipment 11 would have consisted of what - what sort of gear? 12 A. I don't remember at the moment. 13 Q. I mean are we talking about like an airline 14 respirator, a supplied-air source or a mechanical filter 15 respirator or what? 16 A. My recollection is that some of the people 17 wore some - the airline respirators and others did not. 18 They wore the air-purifying respirators. 19 Q. So, like the people in the moon suits that 20 were in the direct proximity or handling the insulation 21 probably had the - the air-fed respirators? 22 A. Yes. 23 Q. And those that were disposing of the 24 asbestos in the bags and - and handling it after it had 25 been removed and put in a bag were wearing filtering 22 1 respirators? 2 A. That's my recollection, yes. 3 Q. The amended water that you spoke of, what 4 was that; something that had like wetting agents in it? 5 A. That's correct. 6 Q. And what is the purpose of that, 7 Dr. Peterson? 8 A. The purpose of it is to wet the insulation 9 which sometimes is difficult to wet particularly if it 10 contains amosite asbestos. 11 Q. And that was the kind of insulation that 12 was in this battleship, amosite-containing insulation? 13 A. Oh, yes, certainly. 14 Q. What, like a Unibestos product? 15 A. I have no idea whose product it was. But I 16 know that when the battleship MISSOURI was insulated, 17 that the Navy called for amosite-containing insulation; 18 so, it must have been. 19 Q. What - what other industrial hygiene 20 controls or hygienic controls were used during this 21 removal besides the wetting, the wet methods and the 22 the air-fed respirators and special clothing? 23 A. We isolated the areas that the people were 24 working in, specifically the engine room and boiler 25 room, depending upon where they were working, from the 23 1 rest of the ship using polyethylene sheet and made 2 sure that these areas had lower air pressures within 3 them than did the remainder of the ship so that any 4 leaks through the seals were in toward the contaminated 5 area. 6 Q. You accomplished this by means of some sort 7 of an exhaust ventilation system I suppose to maintain a 8 suction? 9 A. My memory of this is not real good because 10 I didn't plan that part of it at all. The only thing 11 that I was in charge of was monitoring the exposures of 12 these people. 13 Q. Uh-huh. 14 A. And I was only on theship once when the 15 removal was taking place. And I don't recall a great 16 deal about how these things were accomplished. 17 Q. You have seen other asbestos abatement 18 projects along the way in the last few years I would 19 suppose? 20 A. That's correct. 21 Q. How would one -- After -after you've 22 isolated the work area, how would one maintain a 23 negative air pressure inside that work space typically? 24 A. Typically one uses a blower that takes air 25 from inside the containment volume and discharges that 24 1 air through high efficiency particulate aerosol filters 2 or Hepa filters to the outdoors or to the remainder of 3 the space. 4 Q. So, this would be an example of a form of 5 exhaust ventilation if we are speaking in terms of 6 general principles I suppose? 7 A. It certainly is a form of exhaust 8 ventilation. We would call it general exhaust 9 ventilation. 10 Q. And - and besides maintaining a negative 11 air pressure to where you would be not allowing any of 12 the asbestos dust to escape outside the enclosed area, 13 you are also I suppose removing the dust that is being 14 generated in the removal of the insulation and capturing 15 it in - in this high efficiency filter that you 16 mentioned? 17 A. That's the theory of what's going on. 18 Actually very little dust is generated if this job is 19 being done properly. 20 Q. Because of the wetting? 21 A. Because of the wetting and the careful 22 removal techniques that people use. 23 Q. Could you describe what you observed 24 about - in the nature of careful removal techniques. 25 A. Rather than describing how they do it, I 25 1 can tell you how they don't do it; that is, they don't 2 take pieces of insulation off and throw them on the 3 floor and walk on them and so forth. Instead they 4 handle each piece of insulation rather carefully, 5 removing it from the pipe or the boiler or whatever and 6 putting it in a plastic bag. The plastic bag before 7 being removed from the area is then encased in another 8 plastic bag, both of them being sealed, so that 9 asbestos-containing materials are not allowed to - to 10 get out of the area directly, except within a sealed 11 bag. 12 Q. What - what is the problem with just 13 dropping the asbestos insulation on the floor and then 14 someone stepping on it? I mean what is the consequence 15 of that? 16 A. It gets spread around is all. 17 Q. Does this end up - what, generating more 18 particles that can be turned into airborne dust at some 19 point? 20 A. Not necessarily. Just a mess to clean up. 21 And the clean up itself may do things, depending upon 22 whether the asbestos-containing material has dried out. 23 Q. I see. So, if it is dry, then just the 24 sweeping or shoveling it up in itself is a - a bit of a 25 dust-making activity, isn't it, when it's dry? 26 1 A. I -- I suppose it can be. I have never 2 observed it; so, I don't know. 3 Q. Did you ever observe the removal or 4 installation of asbestos insulation in a chemical plant 5 or a refinery? 6 A. No. 7 Q. So, you were telling us then that you were 8 monitoring for dust in the air where these men were 9 doing the removal in the battleship in Long Beach is 10 where we started on this digression. 11 A. That's what I was doing, yes. Or what the 12 crew was doing. I wasn't actually there doing it. 13 Q. All right, sir. Well, have you ever 14 personally monitored and - for airborne dust-containing 15 asbestos yourself? 16 A. Sure, several times. 17 Q. This would have been in connection with the 18 asbestos-containing gaskets? 19 A. Well, that's one such instance, yes. 20 Q. Can - can you tell us about any other times 21 that you recall? 22 A. I have monitored the breathing zones of 23 people installing these asbestos-containing gaskets in 24 small engines. I have monitored the brake jobs being 25 done on buses two or three times where the brake shoes 27 1 are asbestos-containing materials. 2 I have monitored the turning of such brake 3 shoes on lathes for buses. I recall one time when I 4 simulated or had an exposure simulated in a building 5 where a maintenance man did some work wearing air 6 sampling equipment. And there undoubtedly were more, 7 but those are the ones that come to mind. 8 Q. What was the point or the reason for -- The 9 point of or the reason for your doing the monitoring of 10 the men who were removing the asbestos insulation on the 11 battleship? And I say "you are doing it," I mean your 12 your crew or staff doing it. 13 A. It was part of our contract. 14 Q. Well, I mean why would anybody spend money 15 doing something like that when you are using all of 16 these controls that you spoke of that - that were aimed 17 at eliminating the dust generation? 18 A. The Navy was interested in determining what 19 their - the exposures of the people would have been had 20 they not been wearing the respiratory protective 21 equipment. 22 Q. You feel like based on 30 years of 23 experience that you could have told the Navy what those 24 exposures would have been in the absence of doing 25 monitoring with any - any high level of accuracy or 28 1 certainty? 2 A. Probably. 3 Q. You could express it in terms of the number 4 of fibers per cc of asbestos dust in the air? 5 A. Based upon work that I had observed or had 6 been doing previously, yes. If the job is done properly 7 with the asbestos-containing material being wetted 8 properly and handled carefully, exposures even without 9 respiratory protective equipment would be quite low. 10 MR. BLANKS: I will have to 11 object to the responsiveness of that. 12 (By Mr. Blanks) 13 Q. And I will ask you, then, if that opinion 14 is based on these examples of asbestos monitoring that 15 you have personally done; that is, the gasket 16 installation and the brake work? 17 A. No. Because as I was talking, I remembered 18 another one; and that is where I monitored the removal 19 of asbestos-containing material from a building in 20 Milwaukee. And I was working with the results of that 21 monitoring and know what those results were. 22 Q. And what - what year, approximately, would 23 that have been in? Sometime in the '80's I suppose? 24 A. Probably the early '80's. I -- I just 25 don't remember. 29 1 Q. All right, sir. 2 A. Sorry. 3 Q. This would have been removing building 4 materials containing asbestos? 5 A. Yes. 6 Q. Can you tell us generally what kind of 7 materials we are talking about? Would it have been like 8 ceiling tiles or plasters, or do you recollect at all? 9 A. The material removed was ceiling tile, 10 acoustical plaster, thermal insulation. I'm not sure 11 whether they removed any floor tile or not. 12 Q. You say "thermal insulation," are you 13 talking like insulation that would have been used on 14 pipes or - or insulation you would put in walls and 15 ceilings? 16 A. This would be pipe insulation. 17 Q. And was this work in Milwaukee in probably 18 the early '80's done under controlled conditions as 19 well with wet - wet methods and respiratory protection 20 and so on? 21 A. Oh, yes. The method used was very similar 22 to that that was used on the MISSOURI. 23 Q. I see. So, you think you could have given 24 the Navy an accurate value for the asbestos exposures 25 that would have been - they would have had inside the 30 1 ship areas where they were removing the insulation 2 without doing monitoring? 3 A. Not an accurate value, no. I think I could 4 have told them that based upon the experience that I had 5 had and the material I had read, that if the work is 6 done carefully, that exposures would be below the 7 threshold limit value. But exactly what the levels 8 would be, I certainly couldn't tell them without 9 monitoring. 10 Q. And the reasons that you think the 11 exposures would have been below the threshold limit 12 values would have been in large part because the wet 13 methods were used to prevent the creation of dust I 14 suppose. Would that be true? 15 A. Well, it's - it's the whole method that 16 that's being used that would result in relatively low 17 concentrations of asbestos-containing materials. 18 And as we talk, I can remember a couple of 19 other cases where I or people working with me monitored 20 the breathing zones of people doing such removal. And 21 almost always the concentrations that we found in the 22 breathing zones of such people were well below the 23 T.L.V. or the P.E.L. at the time. 24 Q. And that would be in cases where you are 25 using wet methods to suppress the dust creation; 31 1 isolation of the work space from the surrounding area; 2 exhaust ventilation as we have just discussed and 3 careful handling techniques so as not to create any more 4 dust than - than absolutely necessary in the removal of 5 materials; isn't that true? 6 A. I -- More or less true. However, the 7 isolation and the exhaust ventilation don't do anything 8 at all for the workers who are doing the job. They 9 simply prevent the spread of asbestos-containing 10 materials from the contained area to elsewhere in the 11 building or ship or wherever. 12 Q. Oh, the ventilation isn't a factor here 13 because the wet methods result in such a low amount of 14 dust in the air? 15 A. Essential --16 Q. (Interrupting) Is that what you are saying? 17 A. Yeah, essentially. That's right. 18 Q. I see. Now, if wet methods were not being 19 used in the ventilation by removing the - or changing 20 out the air in the room and thereby taking dust out, 21 too, would - would help to keep the exposures down, keep 22 the level down, true? 23 A. It depends on where you are making the 24 measurements and so forth. I -- I really can't give you 25 a generalized answer. 32 1 Q. That means that even with ventilation, 2 there would be some areas in the work space where the 3 dust concentrations would be higher than - than in 4 others? 5 A. Well, sure. In general the closer to where 6 the source is, the higher the concentration is going to 7 be. So, there will obviously be a gradation of 8 concentrations. 9 Q. In a space like the ones you have monitored 10 in, have you done area monitoring within the area so 11 that you can tell us how quickly a dust concentration 12 will decline as the distance from the - you are calling 13 the source increases? 14 A. Only those circumstances that we discussed 15 previously. 16 Q. You mean like the removals in the Milwaukee 17 building and the brake jobs and the gasket installation 18 and that sort of thing? 19 A. No, the welding and that kind of thing that 20 I was talking about. I can't recall any circumstance 21 where I or people working for me monitored the general 22 area in a containment area, if you will. We always 23 monitored outside the containment area as well as the 24 breathing zone of the people doing the work. 25 Q. Okay. So, your monitoring would be very 33 1 close to the - the person doing the work. That's what 2 you called a breathing zone. What - what does that 3 mean anyway? I mean I have got a picture that's just 4 right around your - your nose, your mouth. But what 5 what do you mean when you say "breathing zone"? 6 A. Well, the Occupational Safety and Health 7 Administration defines the breathing zone as an area 8 encompassed in a one foot radius of the nose and mouth. 9 Q. So, you would monitor within a one foot 10 radius of the nose or mouth of the person that was 11 actually generating this dust? 12 A. Yes. 13 Q. And then the only other monitoring that was 14 done would have been outside the - the containment area, 15 outside the polyethylene wall or whatever it would be to 16 see if there was any leakage outside? 17 A. Yes, when we are talking about the removing 18 of asbestos-containing material. 19 Q. Okay. But you can't tell us then that 20 within the containment area or even within a work area 21 that is not contained, how - how quickly the 22 concentrations drop off as you move away from what you 23 are calling the source of the dust, can you? 24 A. Not for asbestos, no. I have never made 25 that measurement. 34 1 Q. Now, you apparently have done a good bit of 2 sampling in connection with welding operations. 3 A. I have. 4 Q. And this is - what, arc welding? 5 A. Yes. 6 Q. Who were you doing these for? 7 A. Mainly welding rod manufacturers in 8 litigation. 9 Q. Any of those in particular or just all of 10 them? There is not too many of them, are there? 11 A. Gee, I don't know. Most of the work that I 12 have done has been for attorneys working for Lincoln 13 Electric, sometimes others. That's been the main one, 14 however. 15 Q. So, what - what did you learn generally 16 about the behavior of particulates that are generated by 17 electric arc welding? 18 A. Quite a lot. Do you have anything more 19 specific in mind? 20 Q. Well, no. I was just trying to get a quick 21 education here and see how it might apply to our 22 asbestos problems since you have offered it as a 23 metaphor. 24 A. Well, when welding fume is freshly 25 generated, it is very small; that is, each particle is 35 1 very small. These particles for the most part are 2 respirable particles because they are small. 3 "Respirable" referring to the ability of the particle 4 to reach the deep lung on inhalation. Therefore, 5 because of their size, their low mass, they tend to move 6 with air currents. 7 In welding, arc welding, the source of the 8 particles is a source also of heat. And, therefore, 9 everything tends to rise in a plume of heated air. This 10 material readily disperses, however, once the plume 11 expands and cools; so that as the materials drift in 12 air, they can be found elsewhere within the building 13 usually, but in much lower concentration than they are 14 found in the breathing zone of the welder. 15 Q. So, these particles you say are mostly in 16 the respirable size; and that's what - what diameter 17 and - and less? 18 A. Respirable refers to particles that have an 19 aerodynamic diameter of about five micrometers or less. 20 Usually we have a lower cut off at about a tenth of a 21 micrometer because materials that are smaller than that 22 tend to behave like gas molecules; that is, they go in 23 and come right back out again. 24 Those materials that have the greatest 25 ability to remain within the lung once inhaled have 36 1 aerodynamic diameters on the order of two or three 2 micrometers. 3 Q. Can you tell us anything about the density 4 of these respirable particles that - that are generated 5 in electric arc welding? 6 A. The density varies to a certain extent 7 because the particles that are generated are in general 8 spherical in nature; many of them are hollow. But 9 density is one of those factors that is taken into 10 consideration when one determines aerodynamic diameter. 11 And, therefore, it is not an independent variable. 12 Q. So, you can't tell us what the density of 13 the welding particles are? 14 A. Not right offhand. I don't recall. 15 Q. How do they compare with the density of 16 asbestos fibers of the sort that you would find in 17 thermal insulation materials? 18 A. Well, again, the question really doesn't 19 arise when one is talking aerodynamic diameter because 20 the aerodynamic diameter of a particle refers to its 21 terminal velocity; that is, its settling velocity in air 22 or on other fluid. And everything is referred to a 23 sphere having a unit density, a density of one. 24 And, therefore, if a particle the same 25 diameter as this sphere we are talking about has a 37 1 density of three, it will fall three times as fast. It 2 will have a settling velocity greater than the density 3 of one particle will have. But when we look at 4 aerodynamic diameter rather than physical diameter, 5 density is part of the equation, if you will. So, it is 6 not independent. And it really doesn't make any 7 difference what the density is. 8 Q. How does the - the fact that these 9 particles are both heated and in a hot gas plume make a 10 difference to their dispersion? 11 A. In welding, in arc welding, the plume 12 rises. This is a common experience of lots of people 13 seeing a plume rise from a hot source. The plume then 14 disperses. As it gets cooler, the plume gets bigger and 15 bigger and bigger until eventually it just goes as much 16 horizontally as it does vertically. So, that's the way 17 we get dispersion with that kind of a plume. 18 Q. So, in fact, because of the heat factor, 19 the welding particles are going to move in still air in 20 a fashion that is in - in some important respects 21 different from what you - you would see with an asbestos 22 fiber in still air, isn't it? 23 A. Yes, because ordinarily the asbestos fiber 24 from asbestos-containing insulation doesn't have any 25 thermal source associated with it. 38 1 Q. Right. Now, how does wetting the 2 asbestos-containing insulation affect the behavior of 3 the particles that must inevitably be generated or 4 created when the material is being torn apart or sawed 5 or what have you to get it off? 6 MR. CELBA: Well, I'm going to 7 object to the argumentative point of 8 that. 9 MR. BLANKS: Who are you 10 representing? 11 MR. CELBA: Owens-Corning 12 Fiberglas. 13 MR. BLANKS: I should have known. 14 (By Mr. Blanks) 15 Q. All right, sir. We were saying. 16 A. If the particle is wet, then the particle 17 is very large because of the water associated with it; 18 and it probably just drops to the floor if it gets loose 19 from the asbestos-containing material. However, the 20 wetting tends to make sure that particles stick 21 together. They conglomerate. They tend to form one big 22 mass rather than a bunch of little particles no matter 23 what you do with the stuff. 24 Q. Okay. So, even in sawing it or tearing 25 pieces apart, breaking the connections, the wetting 39 1 tends to - to keep the material sort of cemented 2 together? 3 A. In general, that's correct. 4 Q. And the particles that do get knocked off 5 because they are wet, they tend to be heavier and bigger 6 and fall to the floor instead of being suspended in the 7 air; is that so? 8 A. Well, again, we have this tendency to stick 9 together because of the wetting; and, therefore, we 10 generate very few particles of respirable size if the 11 wetting is done properly. 12 Q. Now, when was it in Dow plants that these 13 methods of isolation, ventilation, wet methods, careful 14 handling of asbestos insulation materials, the use of 15 respiratory protective equipment such as you have 16 described, when did all of these controls come to be 17 used at Dow in connection with - with asbestos 18 insulating work? 19 A. I don't know. 20 Q. Would it be the case then that as of the 21 time you left the company in 1965 that these techniques 22 had not by then been adopted for all asbestos insulation 23 work in Dow plants? 24 A. I don't know. 25 Q. Then I gather that you don't know if any of 40 1 these methods were being used in Dow plants in 1965 one 2 way or the other, huh? 3 A. That's correct. 4 Q. And I'm wondering, Dr. Peterson, if your 5 consulting work for Dow since you have left them in '65 6 has - has for any reason had you back into Dow plants or 7 facilities where you would have a chance to see what 8 they have been doing in the - in the later years; that 9 is to say the last almost 30 years in handling asbestos 10 insulation materials. 11 A. No. 12 Q. Where did you actually get your training in 13 industrial hygiene? 14 A. At Dow. 15 Q. Okay. So, you really weren't introducedto 16 industrial hygiene in any depth at all in your chemical 17 engineering education? 18 A. That's correct. 19 Q. And, so, you actually learned on the jobas 20 it were at Dow beginning somewhere in '52 or '53 21 perhaps '53 when you got into that six-week section with 22 the I. H. department, true? 23 A. That's correct. 24 Q. What other special assignments did you have 25 during that first year? What other kind of things did 41 1 you work on before you migrated to industrial hygiene? 2 A. Oh, I haven't thought about this for a long 3 time. I worked for -- I had one project. My first one 4 was with the -- Oh, my. I have forgotten the 5 department. My job with them was to work on the 6 distillation of benzoic acid. 7 I worked in the glycol plant where glycol 8 ethers were being made. That was the only production 9 job that I had. All the rest of them were research 10 laboratory jobs. I did some research with a material 11 called sulfan for the physical research laboratory. 12 I had a project in the metallurgical 13 laboratory dealing with the breakage of specimens of 14 metal. Those are the only ones that I recall at the 15 moment. 16 Q. What was the point of this - this variety 17 of special assignments? Was this just to help you find 18 some area of interest or help Dow to see if you had any 19 special expertise or potential or what - what was the 20 idea behind this program? 21 A. There were two ideas behind the program. 22 One was to let me become acquainted with Dow and what 23 was going on there; and, secondly, to let at least some 24 Dow people become acquainted with me and my abilities. 25 Q. Well, let's move then to your introduction 42 1 to industrial hygiene in the last part of your first 2 year with Dow, which I'm surmising would have been 3 sometime in 1953 probably. 4 A. That's correct. 5 Q. Who did you go to work for there? 6 A. Mr. Hoyle, Harold Hoyle. 7 Q. And what was Mr. Hoyle's position at that 8 time in 1953? 9 A. He ran the industrial hygiene group. I 10 don't know what his position was called, but he was the 11 manager of the industrial hygiene group. 12 Q. Could you tell us roughly how large the 13 group was when you started there. 14 A. The group consisted of Harold and two other 15 people: Ed Schneider and Jerry Clock when I became a 16 member of the group. 17 Q. Jerry who, sir? 18 A. Clock. 19 Q. Clock? 20 A. Yeah, C-l-o-c-k, justlike o'clock. 21 Q. And were both of those gentlemen industrial 22 hygienists? 23 A. Neither one startedout that way. Ed had 24 been with Harold for several years. Jerry had been 25 there for a few months; and, in fact, was only there for 43 1 a few months after I came on board. He was not in the 2 group very long. 3 Q. So, you ended up in effect replacing him or 4 taking his place in that he did leave soon thereafter? 5 A. In effect, yes. 6 Q. What was Mr. Schneider's background? I 7 mean had he had some professional training before he 8 joined up with Mr. Hoyle in the industrial hygiene 9 department? 10 A. I really don't recall. I don't remember. 11 Q. Had he been a long-term Dow employee to 12 your understanding? 13 A. I just don't recall. It's too long ago. 14 Q. Now, wait a minute. If we were talking 15 about 1943, I would have to give you that point. All 16 right, sir. So, sometime either in 1963 or '64 then you 17 became the No. 3 industrial hygienist in the group? 18 A. No, '53. Not '63. 19 Q. I'm sorry. I'm sorry. Excuse me. Can you 20 tell us about the other people that hired on after you 21 that you can remember, knowing that there will probably 22 be some that you can't recall and some that came and 23 went? 24 A. The person who came after me was Lawrence 25 Silverstein, Larry Silverstein. The person who came 44 1 after Larry was Arnold Schaffer. And by the time I 2 left, those were the only more or less permanent 3 additions to our staff. We had a number of people come 4 through the group and worked there on their own six-week 5 or eight-week assignments with their group. But 6 there -- I don't recall there being any other permanent 7 additions. 8 We had -- Oh, sorry. Charlie Powell, 9 Charles Powell was there for a few months. He was 10 supposedly going to be a permanent addition to the 11 group, but he left in favor of going to the Public 12 Health Service or someplace. 13 Q. So, by 1965 when you departed the 14 industrial hygiene group, it consisted of - what, 15 Mr. Hoyle, Mr. Schneider was still there, 16 Mr. Silverstein and Mr. Schaffer and ... 17 A. Oh, yes. We had a young lady, Lorna 18 Stolpe, who was working as an analyst for us as well. 19 Q. S-t-o-l-p-e? 20 A. Yes. 21 Q. But to my earlier question, thedepartment 22 consisted of four or five industrialhygienists by 1965 23 and then in addition this lady who was an analyst? 24 A. Yes. That was the group in Midland. By 25 the time I left, there were industrial hygienists at 45 1 other Dow divisions but not in Midland. 2 Q. And when you described this lady as being 3 an analyst, what - what does that entail? Was she a 4 chemist? What - what was she? 5 A. Lorna was a chemist, yes. 6 Q. What sort of work did she do for you? 7 A. Basically analytical chemistry. She also 8 helped maintain the equipment that we had, did some 9 calibrating of equipment and so forth. 10 Q. Now, did the Midland industrial hygiene 11 group function as sort of a corporate industrial hygiene 12 group; or was its responsibility limited to the plant or 13 plants in the Michigan area? 14 A. Depends on the time frame. When I was 15 there most of the time, the Midland group functioned as 16 the industrial hygiene group for Dow Chemical regardless 17 of division or whatever. When the other divisions began 18 to have their own industrial hygiene people, we became 19 still a corporate group, but more or less in a staff 20 responsibility to the others. 21 Q. So, in the beginning this Midland 22 industrial hygiene group was the group of industrial 23 hygienists responsible for all of the Dow facilities. 24 Then as time passed, some hygienists were hired to 25 actually work in particular plants assigned to - to 46 1 those plants? 2 A. Yes. 3 Q. And then the Midland group sort of 4 transformed into more of a staff consulting group for 5 these individual plants, is that ... 6 A. That's as I recall it, yes. 7 Q. All right, sir. Do you recall when it was 8 that along the way that hygienists were hired to go work 9 in specific plants, even approximately? 10 A. I don't recall. I really don't - don't 11 remember. 12 Q. I'm assuming perhaps incorrectly that by 13 1965 when you left Dow to go into full-time academia, 14 that there were at least a few industrial hygienists 15 assigned to specific Dow plants. Would that be so? 16 A. That was so, yes. 17 Q. Would you recall, sir, if by 1965 there was 18 an industrial hygienist in any of the Dow Texas plants? 19 A. Yes, I believe there was. 20 Q. Can you recollect who that person was? 21 A. That was Dr. Ralph Langner. Actually Larry 22 Silverstein went to Freeport for a while to work down 23 there. It may have just been a few months. And it was 24 after that I believe that Dr. Langner was hired. 25 Q. And what is this gentleman's first name? 47 1 A. Ralph. 2 Q. How do you spell the last name, 3 Dr. Peterson? 4 A. L-a-n-g-n-e-r. Ralph is dead. He died of 5 cancer sometime. 6 Q. Now, was Dr. Langner a physician or a 7 Ph.D.; or what - what was his background? 8 A. I know he was not a physician. He had a 9 Ph.D., and I don't recall what in. 10 Q. Can you associate any other industrial 11 hygienists with the Dow Freeport facility? 12 A. No. 13 Q. Were there any other Dow facilities in 14 Texas that you knew of? 15 A. No. 16 Q. Did you yourself ever goto the Dow 17 Freeport plant? 18 A. Yes. 19 Q. Approximatelywhen was that? Sometime 20 between 1953 and 1965, I know. 21 A. Probably in the early '60's, but I -- I 22 don't recall when I went. 23 Q. And what was it that - that would have 24 caused you to go down there? Instructions from above, 25 yeah. No. What - what sort of a problem would you have 48 1 been confronted with? 2 A. I'm not really sure. I -- I don't have any 3 recollection of why I went there. I remember going, and 4 that's about it. 5 Q. What in those years were the principal 6 products of that plant in Texas? 7 A. As I recall the products, the main products 8 were associated with the chlorination of materials found 9 in petroleum along with magnesium. 10 Q. Are you remembering that at the time you 11 first went to the Freeport plant that there wasn't 12 already an industrial hygienist assigned to that plant? 13 A. No, there was no industrial hygienist there 14 when I went there. 15 Q. So, if yourrecollection about going in the 16 early '60's is right, then it would follow that 17 Dr. Langner was assigned there sometime around or after 18 the early '60's, but probably before '65, huh? 19 A. That sounds logical. 20 Q. Okay. 21 A. I sure can't vouch for it, however. 22 Q. All right. 23 A. I just don't know. 24 Q. Based on your best recollection, and that's 25 all we have got to work with, what kind of uses were 49 1 made of asbestos in the Freeport plant? 2 A. I don't know. 3 Q. Were there any uses of asbestos in the 4 chlorination processes? 5 A. Not that I'm aware of, no. 6 Q. Did Dow make its own chlorine there? 7 A. I don't recall. I -- Oh, yes, Dow did make 8 chlorine there. 9 Q. Did they use hooker cells? 10 A. I don't know. 11 Q. Are you familiar with what hooker cells 12 are? 13 A. At one time I could have drawn you a 14 picture, but I can't anymore. 15 Q. Do you recall that they used asbestos as 16 a - as a media in those cells? 17 A. I -- I really don't. I know that there 18 were two or three kinds of electrolytic cells that used 19 asbestos; but whether the hooker cell did, I don't 20 recall. 21 Q. And you don't recall whether Dow's process 22 did or not I suppose? 23 A. I -- I never got involved with that. I 24 just don't remember. 25 Q. Do you recall that you did any kind of 50 1 sampling or monitoring while you were down at Freeport? 2 A. I don't recall doing so; I might well have, 3 however. 4 Q. Well, during this approximately 12 years 5 that you were with the industrial hygiene group in 6 Midland, how many different plants did you men have to 7 cover? 8 A. My recollection is that Mr. Hoyle did most 9 of the work outside of Midland. But I know that I got 10 over to Ludington once, Freeport once or twice. I'm not 11 sure. Over to Sarnia once and to Dow's Bay City plant 12 several times. 13 Q. Well, where is the Bay City plant? 14 A. In Bay City, Michigan. 15 Q. And in Midland I gatherthere is at least 16 one Dow production plant? 17 A. Yes. 18 Q. Be there more than one? 19 A. Well, at one time we thought that the Dow 20 plant in Midland was the largest chemical plant inside 21 one fence in the United States if not the world. 22 Q. Is that to say that there were several 23 different production units within this one - one piece 24 of property? 25 A. Many. 51 1 Q. But there weren't locations away from 2 Midland or away from this - this one spot in Midland? I 3 mean if we are talking about the Midland plant, we are 4 talking about many units; but - but one place, one in 5 the same place? 6 A. Well, we had wells for brine that were 7 outside of the confines of the plant. But all chemical 8 processing was done within a fence really, a fenced 9 area. 10 Q. So, during this period '53 through '65, Dow 11 had plants in about - what, five different places? 12 A. Oh, there were others as well that I didn't 13 get to. 14 Q. I'm sorry. You were just listing the ones 15 you had been to? 16 A. Yes. 17 Q. Excuse me. Can you -- Can you tell us the 18 others that you recall; that is to say ones in addition 19 to these, ones that you didn't go to? 20 A. Well, Dow was running the plant at Rocky 21 Flats, Colorado for the Atomic Energy Commission. Dow 22 had a facility in California in Pittsburg I believe. 23 There was Cliffs-Dow in Canada. Those are the only ones 24 I remember. 25 Q. What was the Dowell division, D-o-w-e-l-l? 52 1 A. This was a group that did fracturing of 2 strata for oil production as well I believe as the 3 refurbishing of some kinds of equipment such as heat 4 exchangers and so forth. 5 Q. So, this would be oil production 6 related -- 7 A. (Interrupting) Yes, all - all of it. 8 Q. --- equipment? Okay. Now, did you also 9 provide industrial hygiene services out of Midland for 10 the Dowell division in that period '53 to '65 or any 11 part of it? 12 A. I didn't, no. 13 Q. Did the industrial hygiene group? 14 A. Yes. 15 Q. Was there any particular person responsible 16 for that? 17 A. There was, but I don't remember who it was. 18 Q. Do you recall, Dr. Peterson, any other 19 divisions of Dow Chemical Company that got their 20 industrial hygiene services from the Midland group while 21 you were there? 22 A. No, I don't recall. Thereprobably were, 23 but I just don't remember because I wasn't involved in 24 it. 25 Q. I see. 53 1 MR. ALMQUIST: Joe, why don't we 2 take a break. 3 MR. BLANKS: Well, all right. 4 5 (A BRIEF RECESS WAS TAKEN.) 6 7 (By Mr. Blanks) 8 Q. Dr. Peterson, the work you did in 9 connection with asbestos gasket installation monitoring, 10 was that done at Briggs & Stratton? 11 A. It was done at Briggs & Stratton, yes. 12 Q. They were concerned in their plant about 13 any possible asbestos exposures from the use of these 14 gaskets when they were putting their engines together? 15 A. Correct. 16 Q. Or I guess the installation of the gaskets, 17 wasn't it? 18 A. There were two kinds of jobs: One was 19 installing the gaskets; the other one was unpacking the 20 gaskets and then repackaging gaskets to be sent out as 21 replacements, if you will. 22 Q. These were gaskets that Briggs & Stratton 23 was buying from - from other vendors? 24 A. Yes. 25 Q. What did you find in connection with the 54 1 unpackaging of these gaskets? 2 A. In none of the jobs did I find an 3 overexposure compared to the T.L.V. or P.E.L. at the 4 time. 5 Q. This work would have been done after '68 I 6 suppose? 7 A. Yes, definitely. 8 Q. After you had left Dow and gotten your 9 Ph.D.? 10 A. Yes. 11 Q. Did you find measurable asbestos fiber dust 12 in the air, though, in connection with these - the 13 handling of these asbestos gaskets? 14 A. I don't recall whether I did or not. I 15 know if I did, the concentrations were very low; but 16 that's the only memory that I have. 17 Q. None of this - this monitoring involved the 18 removal of old gaskets I gather? It was all new - new 19 materials? 20 A. Oh, yes, at Briggs it was all new 21 material. 22 Q. What did -- What did you learn in your 23 studies of the bus brake work? 24 A. There in Milwaukee I recall that there were 25 measurable concentrations of asbestos fiber that were 55 1 again low. When I did this kind of work in St. Louis, 2 Missouri where they were turning the gaskets on a 3 lathe -- Or not the gaskets, turning the brake shoes on 4 a lathe, I don't recall whether I found any measurable 5 asbestos fiber or not. Again, concentrations were very 6 low. 7 Q. What sort of controls were they using to 8 deal with any dust that was being generated in - in 9 connection with the lathe work, the machining of the 10 asbestos brake parts? 11 A. None. 12 Q. This was done - what, for the city of 13 St. Louis, the municipal bus company? 14 A. Yeah, it was municipal buses. I did the 15 work for an insurance company. 16 Q. Which company was that? 17 A. I believe at that time it was Fred S. James 18 Insurance Brokers. 19 Q. Oh, okay. Did you recommend any - any sort 20 of controls be used in connection with that machining of 21 the asbestos brake parts? 22 A. I don't recall that I did. I may have. I 23 just don't know. I don't remember. 24 Q. You mentioned sampling in connection with 25 the simulated exposure of a maintenance man. Could you 56 1 describe that scenario to us. 2 A. That was in Kansas City. It was in 3 conjunction with a Worker's Compensation case. And 4 everything took place in a building that had quite a bit 5 of asbestos-containing insulation in it. And what I did 6 was to equip a maintenance man with an air sampling 7 device where I changed the filter two or three times on 8 his shift and had him perform those activities where he 9 might be exposed to asbestos to determine what the 10 concentrations were. 11 Q. So, if I understand you, you equipped him 12 with a personal or personnel monitoring device of some 13 sort? 14 A. Yes, he wore a pump and a filter in his 15 breathing zone. 16 Q. And then he would just go about doing his 17 normal work as a maintenance man, and you were 18 basically sampling for whatever would be ambient 19 asbestos dust in - in his workplace? 20 A. No, it wasn't quite like that. He went 21 about doing his normal work only in that I asked him to 22 do work that would expose him to places where we knew 23 there were - there was asbestos-containing insulation. 24 Q. So, you were sampling him while he was in 25 areas where the asbestos insulation was present? 57 1 A. Yes. 2 Q. But the work that he was doing when he was 3 being monitored didn't involve the installation or the 4 removal of the asbestos insulation? He was simply 5 working in those - those areas? 6 A. Yeah. Again, it's more complex than that. 7 One of the areas was a soffit area where he simulated 8 doing some work in the soffit area where he actually had 9 to get through about six inches of loose insulation that 10 he was walking through. 11 I also -- In that job they had had a - a 12 rain storm, and material that had been sprayed onto the 13 under side of the roof of the top floor, the ceiling of 14 the top floor, which was the machinery floor, had in 15 many areas dropped onto the floor. It had little piles 16 of asbestos-containing material on the floor of the 17 machinery room. And there I was the simulator. I put a 18 pump and a filter on me and wandered around up there for 19 an hour or so to get an air sample to see what the 20 average would be in that area. So, it was a combination 21 of the two things that I did. 22 Q. So, when you acted as the - I won't say the 23 guinea pig, but the person carrying the pump, you were 24 in an area where sprayed-on, asbestos-containing 25 insulation had fallen off from a roof deck on account of 58 1 some water damage? 2 A. That's right. 3 Q. And you were just moving about in that area 4 for an entertaining hour? 5 A. For an entertaining hour, yes. 6 Q. Now, the soffit area where this maintenance 7 man was working that had loose insulation in it, are we 8 talking about the kind of insulation like you would have 9 in a - above a ceiling; some sort of a mineral wool 10 insulation or fiberglass, or what - what was it? 11 A. Well, it was supposedlyasbestos-containing 12 insulation. I didn't analyze any of the material. I 13 was simply told that it contained asbestos. 14 Q. On top of the soffit? 15 A. Yes, blown-in insulation just as you would 16 have in your home, except that in this case it 17 supposedly contained asbestos. 18 Q. You didn't verify that and really 19 couldn't - didn't even determine what - what the base 20 material was I suppose? 21 A. That's right. It didn't matter. What I 22 cared about was what kind of an exposure he would get to 23 asbestos by wandering through the material. 24 Q. And if there weren't, in fact, any asbestos 25 in that blown-in insulation, then naturally you wouldn't 59 1 be expecting to find any - any asbestos fiber or much 2 asbestos fiber in your samples? 3 A. That's correct. 4 Q. So, not knowing actually what it was, the 5 only conclusion you can really draw from those samples 6 in the soffit area is that you didn't see much asbestos 7 fiber? 8 A. In none of the samples on - on the 9 maintenance man or myself did I see much asbestos fiber. 10 And that was really the question involved in the 11 compensation suit. 12 Q. This maintenance man was alleging an 13 asbestos-related disease? 14 A. No, it was not that one. It was one of his 15 co-workers. 16 Q. I see. All right, sir. On the ship - the 17 ship project, the battleship and the removal of the 18 asbestos insulation from in the ship, was it the case 19 that the people that were wearing the - the cartridge 20 respirators I guess they were, the mechanical filter 21 respirators, were actually working outside the ship in 22 dealing with the disposal of the - the asbestos 23 insulation? 24 A. My memory is awfully vague about this 25 because as I said, I was only on board the ship once 60 1 when they were working there. 2 Q. Uh-huh. 3 A. And I'm not even positive that we had 4 airline respirators and air-purifying respirators. I 5 know that some people were wearing air-purifying 6 respirators, that is cartridge filters; or they might 7 even have been powered air-purifying respirators. I 8 don't remember. But I do recall that some of the people 9 I saw outside of the contained area, which I didn't 10 enter --11 Q. (Interrupting) Uh-huh. 12 A. --- and elsewhere on the ship were wearing 13 respirators that would allow them to move around and --14 Q. (Interrupting) Okay. 15 A. --- therefore, they couldn't be airline 16 respirators. 17 Q. Right. So, your best recollection would be 18 then that the - the use of the mechanical respirators 19 was outside the containment area? 20 A. Oh, certainly. 21 Q. Yeah. 22 A. They may have been used inside the 23 containment area as well. I don't know. I didn't go 24 in. They also had a - a building on the shore where all 25 of the materials were handled; that is, sometimes they 61 1 wouldn't remove the insulation from a pipe. They would 2 simply remove the pipe and put it in a bag and send it 3 to the shore where they had a facility set up much the 4 same way --5 Q. (Interrupting) Uh-huh. 6 A. --- where the insulation would actually be 7 removed. 8 Q. Under the same sort of conditions with an 9 isolated work space, negative air pressure, wet methods, 10 moon suits and so on? 11 A. Yes. 12 Q. Now, the moon suit as you call it, that 13 would be just a basic form of protective clothing I 14 guess? Is that the way you would describe it? 15 A. Well, a plastic coverall would be a - a 16 good description of it. 17 Q. What - what is the point in - in doing 18 that? I mean why would an industrial hygienist use that 19 as a - as a protective method? 20 A. Well, it actually doesn't protect that 21 person particularly. But it allows him to be cleaned 22 off so that he doesn't carry asbestos-containing 23 material outside of the containment area. This can be 24 done rather easily; that is, one can either remove the 25 coverall and throw it away; that is, dispose of it 62 1 properly. 2 Q. Right. 3 A. Or one can clean off the coverall. 4 Actually I don't recall which technique was used here. 5 Q. But the idea would be then to - to prevent 6 the workman who would be in the asbestos atmosphere from 7 carrying the asbestos dust that was in the air that 8 would get into his clothing out of that area and taking 9 it elsewhere? 10 A. You - you keep using asbestos as a - as a 11 characterization of this. It's asbestos-containing 12 material. 13 Q. Okay. 14 A. And to the best of my knowledge asbestos 15 only comprised about 15 percent of it. So, most of it 16 is something else --17 Q. (Interrupting) Uh-huh. 18 A. --- other than asbestos. But, of course, 19 asbestos is what we are concerned about. 20 Q. Right. And even a 15 percent level would 21 be - obviously you were concerned about it -- 22 MR. CELBA: (Interrupting) I'm 23 going to object to the ... 24 (By Mr. Blanks) 25 Q. --- enough to - to be using protective 63 1 clothing and respiratory protection and so on? 2 MR. ALMQUIST: I'm going to 3 object to the form of this one as 4 well with respect -- Are you talking 5 about on this job in 1984? 6 A. I had nothing to do with that. This was 7 set up by the Navy -- 8 (By Mr. Blanks) 9 Q. (Interrupting) Okay. 10 A. --- and the Navy was doing the job. And 11 their people were doing the job or the Navy yard people. 12 I had nothing whatsoever to do with setting up the job. 13 I simply was there to make sure that we could sample 14 breathing zones or simulated breathing zones, if you 15 will, while the people were doing the job. That's the 16 only thing I had to do with it. 17 Q. What - what do you mean by "simulated 18 breathing zones"? 19 A. Well, actually we couldn't sample in the 20 breathing zone if they were wearing respirators. We 21 sampled outside the respirators, not inside the 22 respirators --23 Q. (Interrupting) Oh, I see. 24 A. --- which is the true breathing zone. 25 Q. Okay. Now, you had the technique to sample 64 1 inside the respirator as well, didn't you? 2 A. Oh, one could do that. We - we did not do 3 it. 4 Q. Right. You were sampling outside to see 5 what they would be breathing if they weren't wearing the 6 airline respirators? 7 A. Or respirators of any kind, yes. 8 Q. But again, the point then of the protective 9 clothing is to - to leave the contaminant behind at the 10 worksite or to allow for it to be disposed of rather 11 than carried away by the workman on his clothing? 12 That - that fairly would sum up the point of that 13 control method, wouldn't it? 14 A. Sure. 15 Q. Was this a - a technique that was used at 16 Dow at anytime, the use of protective clothing or work 17 clothes that would be left at the plant and laundered so 18 the men would go home in clean clothes? 19 A. There were cases where this was done, yes. 20 Q. Even back in the - in the '50's when you 21 began working at Dow? 22 A. Yes. 23 Q. Could you think back for us to yesteryear, 24 back to that time when you started working with 25 Mr. Hoyle and recount for us what your training 65 1 consisted of as best you can recall. 2 A. There was several phases of my training in 3 this field. One was that I did some research on air 4 sampling methods for vapors and gases. Another was that 5 Mr. Hoyle gave me a copy of the - I think it's the 1949 6 edition of Industrial Hygiene and Toxicology written by 7 Mr. Patty to read. 8 Another was that I spent quite a bit of 9 time going out and doing jobs with Mr. Hoyle or with 10 Mr. Schneider within the confines of the Midland 11 division until I found out a little bit about what the 12 jobs entailed and how to do them. 13 Another phase was learning to give the 14 slide talk that we used quite a bit throughout the 15 plant. And I had to learn about the toxicity and 16 hazards of the various materials that were being 17 handled. That's about it. This was what I did in my 18 first year or so at Dow. 19 Q. I suppose it's obvious that in your - your 20 education up to that point that you had become familiar 21 generally with chemicals and chemistry and the toxicity 22 of - of a variety of chemicals such as you would 23 encounter in - in the Dow facilities. 24 A. It may be obviously, but it wasn't so. 25 Q. Oh, okay. Well, then, please, correct me. 66 1 A. In my education at the university level, we 2 learned nothing whatsoever about the toxicity and 3 hazards or hazards of materials. We probably learned a 4 very little bit in chemistry courses that some materials 5 could be more dangerous than others, but that was the 6 extent of it. 7 Q. So, even - even as to those different 8 chemicals you would be using in your laboratory classes, 9 you weren't educated about their toxicity or the harmful 10 properties that they could have? 11 A. That is correct. 12 Q. And you weren't I guess in - provided with 13 any kind of protective gear in - in the labs other than 14 maybe some gloves to keep from burning yourself or that 15 sort of thing? I mean I have not -- I have not been 16 there; so, I'm ... 17 A. I --18 Q. (Interrupting) I'm relying on you to tell 19 us. 20 A. I recall that we did have splash shields 21 available sometimes. Sometimes we had goggles that we 22 could wear. I recall using asbestos gloves to keep from 23 burning my hands. I can't recall any other protective 24 gear. Oh, an apron now and then, yes. 25 Q. Did you use asbestos to make Gooch filters 67 1 when you were in the university doing lab work? 2 A. Gee, I can't recall doing so. I -- I know 3 what a Gooch filter is, but I can't recall ever doing 4 that. 5 Q. That's something you - you would have 6 encountered at Dow in the laboratories there? 7 A. No. They may have used such things, but I 8 have encountered it in reading much more so than in 9 actual practice. 10 Q. Who was it that taught you to do air 11 sampling for contaminants? 12 A. Mr. Hoyle, Mr. Schneider. 13 Q. So, you - you were given instruction there 14 either in the lab or I guess as well as in the - 15 actually in the plant? 16 A. Yes. 17 Q. On an on-the-job training basis? 18 A. Yes. 19 Q. What - what kind of equipment did you have 20 back in the first half of the 1950's to sample for dust 21 in air? 22 A. Oh, we had several pieces of gear that 23 could be used. We had midget impingers with hand 24 cranked pumps, which could be used to take breathing 25 zone samples. We had Cascade impacters. We had the 68 1 A.I.S.I. paper tape sampler. We had fiberglass 2 fibrous glass filters that we could draw air through. 3 We had the Bausch & Lomb dust counting microscope. 4 There may have been others. There are lots of ways of 5 determining particulate material in the air. 6 Q. I am just wondering what - what you would 7 have been using back in the '50's. 8 A. All of those pieces of equipment. 9 Q. How about in the '60's, did you acquire 10 some additional equipment, newer equipment for dust 11 counting or dust sampling and counting? 12 A. Well, the - the biggest acquisition was 13 that of battery powered pumps so that we could take 14 longer breathing zone samples. And most of the work 15 that we did was with gases and vapors. So, we didn't 16 concentrate on particulate sampling gear. 17 But in the '60's we - at least I was aware 18 that we began to have available to us devices that 19 provided more or less direct and automatic readout of 20 dust concentrations. Whether we actually had one of 21 those at Dow, I don't recall. I don't think so. I 22 think that that came later. 23 I -- I don't recall anything specifically 24 in the early '60's that would pertain - that was new and 25 that would pertain to dust sampling. Oh, an 69 1 electrostatic precipitator. We had those all the time. 2 Q. Were there any places in the Dow plant 3 during the - or any of the Dow plants during the years 4 you were there where you had built-in air sampling 5 equipment? 6 A. Yes. 7 Q. What - what would those have been? 8 A. We had one such installation. This was in 9 a plant handling vinyl and vinylidene chloride, where we 10 had a - a central - oh, we had two of them; we had one 11 in the aspirin plant well - where we had a central pump 12 that drew air from various places within the plant to 13 that central location on a serial basis where the 14 analysis was done automatically. 15 Q. I felt like my description of - of this 16 system was a little bit crude. But how did you -- How 17 would you technically refer to that - that sort of a 18 built-in monitoring system? 19 A. An automatic monitoring system. 20 Q. So, you had pumps that were drawing in air 21 through pipes that had filters at the end that you would 22 collect - take for analysis? I mean was that the ... 23 A. No. 24 Q. Okay. Well, help me out. 25 A. Basically this -- We had a pump generally, 70 1 one pump, that was connected to plastic tubing through a 2 manifold that was electrically operated so that the pump 3 was sampling first through one tube and then through 4 another tube, then through another tube, then through 5 another tube. The air was drawn through a series - 6 Well, each tube was connected to a quartz tube. And the 7 quartz tubes were held at red heat. And the heat caused 8 the chlorinated hydrocarbon to burn. The chlorine part 9 of it was absorbed in a solution. The conductivity of 10 that solution was measured and recorded and was 11 proportional to the concentration of the material. 12 Q. Okay. And that - that was done that way 13 because of the sort of materials that you - you were 14 sampling for? 15 A. Yes, sir. 16 Q. In other words, that wasjust a way of 17 collecting or of separating out the contaminant that you 18 wanted to look for? 19 A. Yes. 20 Q. Yeah. Andthis gave youa way then of 21 continually or periodically at least monitoring these 22 particular work areas that would have the potential 23 for - for harmful exposures to the people working there 24 I guess? 25 A. Yes. 71 1 Q. What sort of research did you do on air 2 sampling? 3 A. The first research I did was in conjunction 4 with the use of silica gel as an absorbent for vapors of 5 mainly halogenated hydrocarbon materials. This led to 6 the publication of my first paper in 1956. 7 Q. So, this was - was aimed at finding a new 8 medium to - to collect the material in? Is that what it 9 amounted to -- 10 A. (Interrupting) No. 11 Q. --- using a silica gel to collect it? 12 A. Yeah; that's right. But it wasn't new for 13 us. The group had been using it for quite awhile. And 14 basically the research was done to establish the 15 parameters of its proper use. What flow rates could we 16 used with what materials; how much silica gel do we need 17 to use and so forth. 18 Q. All right, sir. Did you do any other 19 research on air sampling? 20 A. I may have. I don't recall any right at 21 the moment. 22 Q. So, this would have been the one that you 23 did, the silica gel project was the one that you did 24 during that first year? 25 A. I believe so. It continued on until - when 72 1 I had the time to work on it, until about 1955. And 2 then I had enough data so that I could write a paper. 3 Q. In addition to Patty's 1949 text, did you 4 did you get any other textbooks to work with or study 5 from? 6 A. Oh, yes. We had Fairhall's either 7 Toxicology or Industrial Toxicology that I recall. I 8 believe we had the Johnstone and Miller book which might 9 have been titled Occupational Medicine or something on 10 that order. There may have been others. Those are the 11 ones that come to mind. 12 Q. Do you recall any of Drinker's texts from 13 from that time? 14 A. We may -- Well, that - that wasn't -- I 15 don't think we had any Drinker text or Hatch text in the 16 early '50's. That came in the mid to later '50's as I 17 recall. 18 Q. Are you thinking that when it came out that 19 you did, in fact, have a copy of that available to - to 20 study from? 21 A. No, I don't remember. I don't remember 22 what - what books we had. I consulted books 23 occasionally for when I needed specific information. 24 But that's -- I just don't remember beyond what I have 25 told you. 73 1 Q. Well, I'm -- I'm just trying to get a feel 2 for the different things that you tried to soak up in 3 that first year and how you went about acquiring the 4 expertise for this - this somewhat new field to you. 5 A. Oh, it was a very new field. No, it was 6 the apprenticeship route, followed mainly by reading 7 Patty, which was a pretty big book. And there was a lot 8 of material in there to understand and to discuss with 9 the other two fellows. 10 Q. What - what did the field work amount to 11 that you did with Mr. Hoyle and Mr. Schneider during 12 this first year in Midland? 13 A. I can't particularize it to the first year. 14 I just can't. 15 Q. Can you -- Can you generalize it for us 16 then in those first few years when you were undergoing 17 your apprenticeship? 18 A. I had a couple of kinds of field work. One 19 was to go out with one of the more experienced fellows 20 to plants and see what they were doing and how they did 21 it. Once I learned a little bit about that, I could go 22 out on my own and come back and ask questions if 23 necessary. For another, I - I went around and visited 24 all of the various plants in the Midland division. 25 Q. When you say the "Midland division," what - 74 1 what do you mean by that? Did that -- 2 A. (Interrupting) Those chemical processing 3 plants that were physically in Midland, Michigan. 4 Q. In the fence? 5 A. Within the fence, yes. 6 Q. Okay. That's what I thought you meant. 7 Well, I mean what - what sort of things were - were you 8 and your colleagues doing then in that middle part of 9 the '50's when you would actually go into the plants? I 10 mean were you just making walk-throughs? Were you doing 11 surveys for specific problems? Were you -- Were you 12 doing monitoring or all of the above? 13 A. All of the above. 14 Q. Were there any particular problems that you 15 recall that impressed you in those first years? 16 A. No. What I do recall is that almost 17 everything we did was on the basis of a request from a 18 plant superintendent or from the union to investigate a 19 particular plant or process to determine what the 20 exposures may have been there. 21 Q. Now, at this time in the '50's, did Dow 22 also have toxicologists working there in Midland? 23 A. Yes. 24 Q. Were they in the same organizational group 25 that industrial hygiene was in, or how did they fit 75 1 together? 2 A. Both toxicology and industrial hygiene 3 and - oh, three or four other groups were in the 4 biochemical research laboratory. 5 Q. Can you recall what those other - others 6 were or some of them? 7 A. One of them was the wood lab that worked 8 with wood chemicals or chemicals to use with wood. They 9 were just down the hall when we finally moved into our 10 new building. 11 Q. Like - like for treating woods, 12 preservatives, that sort of thing? 13 A. Yes. 14 Q. Okay. 15 A. We had a very smallgroup dealing with the 16 synthesis of new chemicals that might have biological 17 activity. We had eventually a small pharmaceutical 18 group. And I think that is about it. There may have 19 been one or two others. I had very little to do with 20 them. So, I -- I just don't know. 21 Q. How -- And you called this the biochemical 22 research ... 23 A. Laboratory. 24 Q. ... laboratory. 25 A. Uh-huh. 76 1 Q. Did you rise to some level of 2 administrative responsibility before you left in 1965? 3 A. No. 4 Q. Can you tell us, Dr. Peterson, how the 5 industrial hygiene group in the biochemical research 6 laboratory, section or group or division or whatever it 7 was, how industrial hygiene related to the medical 8 department at Dow, if there was one? 9 A. There certainly was one, and we had no 10 direct relationship at all. As I recall, medical was 11 part of the personnel department; and we were in the 12 research area, if you will. 13 Q. How did you interact with the toxicology 14 department, if you did, in the industrial hygiene group? 15 A. Several ways. One of the ways was that 16 shortly after I was hired, maybe a year and a half or 17 two, I traded jobs with a new toxicologist, who 18 subsequently got his doctorate, which was Ted Torkelson. 19 He became an industrial hygienist for a while and I 20 became an animal inhalation toxicologist for a while. 21 So, I worked directly in the toxicology lab for that 22 period. 23 We sometimes worked with the people in 24 toxicology who were concerned with the formation of 25 labels. We had a rather close relationship with 77 1 toxicology throughout the time I was there anyhow. We 2 knew all of the toxicology people and they knew us well. 3 We were aware of what they were doing in general, 4 although not the details and so forth. 5 Q. So, you actually did inhalation toxicology 6 work for this period of time you were swapping out with 7 Mr. Torkelson? 8 A. Yes. 9 Q. And that would have been '53, '54, '55, 10 somewhere in - in there as best you recall? 11 A. Somewhere in the mid-'50's, yes. 12 Q. How long had Dow had an inhalation 13 toxicology lab or the capability to do inhalation 14 studies? 15 A. I don't know. It was present when I was 16 hired, and I don't recall how much before that Dow had 17 had the ability to do animal inhalation work. 18 Q. Now, you have mentioned that you worked 19 closely with the toxicology folks on labeling matters 20 among other things I think. 21 A. I mentioned that we did work sometimes on 22 that. It wasn't very often. But we would be asked what 23 our experience was with materials in the plant. 24 Q. So, the fact that they were working on 25 labels suggests to me that these would have been labels 78 1 for Dow products? 2 A. Always. 3 Q. And what -- What was -- What was the reason 4 that the toxicology people were concerned with that? I 5 mean were they working on warnings to go on these 6 labels? 7 A. Generally that was the area of the label 8 that we would get involved in. They wanted the label to 9 reflect knowledge we had about handling hazards of the 10 material. 11 Q. Was this the - the policy at Dow to pass on 12 to their customers the information that Dow had 13 developed about the hazards of handling these different 14 chemicals or products that you were selling? 15 A. Certainly in the formation of labels, Dow 16 was at the forefront of this. And Dow was always 17 while I was there at any rate - completely open with 18 materials we had. At a customer's request, we would 19 always furnish any kind of information we had to Dow 20 customers. 21 Q. But I gather that in addition to waiting 22 for requests for information by putting health hazard 23 information on the labels, you were actually taking a 24 positive step to - to get that information out to the 25 to the buyers and the users without waiting for - for a 79 1 question to come in? 2 A. Well, yes and no; in that labels have great 3 problems in trying to convey information. I mean there 4 is only so much you can put --- 5 Q. (Interrupting) Sure. 6 A. --- on a label, so many words that can go 7 on a label; so that we regarded the labels as being 8 supplemental to other information, if you will. We 9 weren't trying to teach with labels, let's put it that 10 way. 11 Q. You were trying to at least alert the users 12 to possible problems or hazards so that they could at 13 least inquire for additional information? 14 A. That's one way a label can be used. 15 Another is simply as reminders of material - of 16 information they already have, if you will. 17 Q. Why do you think this is an important thing 18 to do when you are selling materials that - that have 19 potential health hazards? 20 A. I didn't make this decision. This had 21 nothing to do with me. I was simply helping to provide 22 information to the tox lab about things that I knew 23 about in the plant as were the other industrial 24 hygienists. 25 Q. All right, sir. But speaking as a - as an 80 1 industrial hygienist and as a chemical engineer, what 2 what is the value to the customer of having this 3 information of the sort that Dow was passing on to its 4 customers? 5 A. The most valuable part of such labels is in 6 two pieces: One is what is the material, what its name 7 is; and the other is what to do in an emergency with the 8 material. You can put all sorts of other things on the 9 label as well. But I regard these as being the most 10 important parts of labels. 11 Q. What about those materials that have 12 chronic hazards rather than acute hazards? 13 A. Boy, that's difficult. That's a tremendous 14 problem to try and get information that is useful on a 15 label. 16 Q. Was it -- Was it Dow's approach to just 17 ignore chronic health hazards associated with particular 18 products because it was difficult to get it on a label, 19 or did - was this addressed back in the '50's? 20 A. Well, basically if you have a material, a 21 solvent, for instance, that has a chronic hazard such as 22 say carbon tetrachloride, you can't really put much on a 23 label that is much more than what you put on a label for 24 a material with an acute hazard. Basically you say 25 "avoid breathing the vapor" or something on this order, 81 1 which would apply under either circumstance. You can't 2 really get a great deal more specific than that. 3 Q. So, I suppose if Dow, for instance, had 4 done some toxicology studies and learned that - that 5 some particular product that it was selling could cause 6 chronic health effects in laboratory animals, that this 7 is the sort of information that one way or another Dow 8 would have - would have tried to get to its customers? 9 A. All I can -- 10 MR. CELBA: (Interrupting) I am 11 going to object to the lack of 12 foundation. 13 A. Yeah. I -- I really don't know. I had 14 nothing to do with the preparation of the labels except 15 to provide to the tox person who was working on labels 16 the information that we had from the plant where people 17 were handling the stuff. And this didn't happen very 18 often. 19 (By Mr. Blanks) 20 Q. Uh-huh. 21 A. So, the philosophy is something that I 22 really can't talk about. I just don't know. 23 Q. Well, based on what you were taught at Dow 24 and in your own experience, is it - is it your view that 25 in that period that it was the - the proper thing to do 82 1 to pass on to customers information that you had 2 developed about the hazards of handling materials that 3 perhaps you had learned from experience in your own work 4 force? Is that something that would be appropriate to 5 tell your customers? 6 MR. CELBA: I'm going to object 7 again; lack of foundation, vague and 8 ambiguous and overly broad. 9 A. As I indicated, we were free with the kind 10 of information we developed. We had some people who 11 called us about every week asking for information, and 12 we always provided that information. So that, sure, 13 that was our philosophy, to be free, open and above 14 board with what we knew. 15 (By Mr. Blanks) 16 Q. I mean that was really the point of having 17 the tox lab in the first place, wasn't it, to learn 18 about the hazards associated with the materials that you 19 were either using in your own plants or putting out into 20 the marketplace; isn't that true? 21 A. No. The tox lab investigated the property 22 of toxicity. The industrial hygiene group investigated 23 hazard. So that what the tox lab did was to determine 24 the toxicity of materials. 25 Q. So, you had two - two different approaches 83 1 to what ends up being kind of a similar problem, didn't 2 you? I mean industrial hygiene was looking for 3 potential exposures and hazards in the handling of 4 materials in the plant as used - as handled in the 5 plant; right? 6 A. Hazard to our way of thinking was the 7 likelihood of injury. 8 Q. All right. 9 A. And this iswhat theindustrialhygiene 10 group was involved with. The tox lab was involved in 11 the determination of toxicity of materials. Everything 12 has toxicity. Some things have more toxicity than 13 others. 14 Q. So, for instance, if you learned through 15 experience with your own workers that in the handling 16 of - of some material they were developing some sort of 17 a chronic disease, this is information that would be the 18 sort that a customer using the same material would need 19 to know, too, in order to work safely with it, wouldn't 20 they? 21 MR. CELBA: Well, I'm going to 22 object again. It is repetitious to 23 the previous question. Lack of 24 foundation, vague, ambiguous and 25 overly broad. 84 1 A. This kind of information generally was 2 published by either the tox lab or the industrial 3 hygiene group. We -- As I said, we were very open with 4 what we knew. 5 (By Mr. Blanks) 6 Q. I ... 7 A. We tried to tell people. 8 Q. All right, sir. I'm not taking issue with 9 that at all I assure you. So, for instance, if you had 10 known that your own workers were developing let's say a 11 chronic progressive lung disease as a result of handling 12 a particular material, this is not the sort of 13 information that Dow would have kept secret either from 14 its own employees or from customers who would be 15 handling the same product; is that true? 16 A. That's true. 17 Q. And if we look at it from a toxicology 18 standpoint, if Dow had done tox studies of some product 19 that it was selling and found that the inhalation of the 20 material in laboratory animals could cause a permanent 21 progressive lung disease such as, let's say asbestosis 22 as an example, then this is information that Dow, too, 23 would have properly passed on to its customers, is it 24 not? 25 MR. CELBA: Again, the same 85 1 objection; it's also argumentative. 2 A. The -- This is the kind of information that 3 Dow routinely published. We had -- The tox lab would 4 have two or three papers a year that would have this 5 kind of information in them. And this was the main 6 technique we had of disseminating this kind of 7 information other than answering questions that came in 8 to us from our peers and others in industry. 9 (By Mr. Blanks) 10 Q. All right, sir. And based upon what you 11 knew and what you had been taught at Dow and - and 12 before you got there, from the time frame of the 13 mid-1950's, wouldn't you agree that it would be improper 14 to keep from your customers information that you had 15 had developed about the toxicity of materials you were 16 selling to them? 17 MR. CELBA: The same objection. 18 It's all speculation at this point in 19 time. 20 (By Mr. Blanks) 21 Q. Now, Dr. Peterson, the lawyer from 22 Owens-Corning Fiberglas Company is objecting that you 23 have to speculate. I'm not asking you to speculate, 24 sir. I'm asking you about your professional opinion or 25 your viewpoint from that time frame. 86 1 A. Well -- 2 MR. CELBA: (Interrupting) 3 Counsel, also my objection is based on 4 lack of foundation, vague, ambiguous, 5 overly board and argumentative. 6 A. I wasn't in the tox lab. I was - except 7 for a few months. I can't speak to tox lab policy. I 8 can't speak even to industrial hygiene policy because I 9 didn't set it. All I can report are my observations. 10 And I have reported to you my observations in this area 11 I believe. 12 (By Mr. Blanks) 13 Q. Speaking as an industrial hygienist, would 14 it have been important to you to know in the 1950's when 15 you were beginning your career that there had been 16 toxicological work done even a decade earlier reporting 17 on the potential of asbestos-containing insulation to 18 cause asbestosis in laboratory animals? 19 MR. CELBA: I'm going to object, 20 Counsel, on all the basis I've 21 previously stated in this record. 22 A. Probably not because I had nothing to do 23 with asbestos at Dow. Therefore, I had no particular 24 interest in this subject. 25 87 1 (By Mr. Blanks) 2 Q. If you had been responsible for people at 3 Dow working with asbestos-containing insulation, is this 4 the sort of information that - that would have been 5 useful to you in - in the mid-1950's? 6 MR. CELBA: The same objection 7 and improper hypothetical. 8 A. If I had been in that situation, I would 9 have gone to the literature to find what I could find in 10 the literature, yes. 11 (By Mr. Blanks) 12 Q. Dr. Peterson, do you recall being provided 13 any information in the 1950's by either Owens-Corning 14 Fiberglas Company or the Owens-Illinois Company about 15 toxicology studies done regarding Kaylo insulation and 16 its ability to cause asbestosis in laboratory animals? 17 MR. CELBA: Objection; lack of 18 foundation. 19 A. I -- I certainly didn't request such 20 information; therefore, I didn't receive it. I - 21 Subsequently I, of course, am aware that such 22 information was published in 1951 and was available in 23 the literature. I wasn't -- I wasn't aware of that at 24 the time because I was not particularly interested in 25 asbestos. 88 1 (By Mr. Blanks) 2 Q. So, this information you say was published 3 in the literature and was thus available to Dow in the 4 early 1950's? 5 A. Yes. 6 Q. Have you ever served as a consultant or an 7 expert witness to Owens-Corning Fiberglas Company? 8 A. I have served as an expert witness for 9 attorneys that are working for Owens-Corning Fiberglas, 10 yes. 11 Q. Are you currently, Dr. Peterson? 12 A. I don't think so. I don't recall any of 13 the cases that I'm working on that are O.C.F. cases, no. 14 Q. When was the last time as best you can 15 recollect that you did work for Owens-Corning Fiberglas 16 Company in connection with an asbestosis or an asbestos 17 disease case? 18 A. This Spring. 19 Q. Is that case over with? 20 A. Yes. 21 Q. What - what did they hire you to do? 22 A. To talk about -- 23 MR. CELBA: (Interrupting) I'm 24 going to object, Counsel. Who are you 25 referring to hiring, Counsel, 89 1 attorneys I assume? You have to -- 2 (By Mr. Blanks) 3 Q. (Interrupting) Sir? 4 MR. CELBA: It's vague and 5 ambiguous as to "they." My objection 6 stands on the record. 7 (By Mr. Blanks) 8 Q. The Owens-Corning Fiberglas lawyer is 9 objecting as to who hired you, the vagueness of the 10 question. As I understood it, you were being paid by 11 lawyers being paid by Owens-Corning Fiberglas Company or 12 one of their insurance companies to testify in 13 connection with asbestos disease cases; is that correct? 14 MR. CELBA: I'm going to object, 15 Counsel. You are argumentative at 16 this point in time. 17 (By Mr. Blanks) 18 Q. Is that correct, sir? 19 A. I have testified in deposition and trial 20 regarding industrial hygiene of asbestos for attorneys 21 working for Owens-Corning Fiberglas, yes. 22 Q. All right, sir. And what - what generally 23 are - are the nature of the opinions that you express 24 when you are testifying on behalf of Owens-Corning 25 Fiberglas Company in asbestos disease cases? 90 1 MR. CELBA: I'm going to object 2 as vague and overly broad, 3 indefinite. 4 A. Well, in the first place, the - my 5 testimony is a matter of public record. And, therefore, 6 you can easily find it. In the second place, just about 7 everything that I testified to is to what we knew about 8 in industrial hygiene in the '50's and '60's. 9 (By Mr. Blanks) 10 Q. All right, sir. So, what testimony do you 11 give on behalf of Owens-Corning Fiberglas as to what is 12 known about industrial hygiene aspects of asbestos in 13 the 1950's? 14 MR. CELBA: The same objections; 15 overly broad. 16 A. Basically what the threshold limit value 17 is; what are threshold limit values; where do they come 18 from; what techniques does one use to sample air for 19 asbestos and why - this kind of thing. It's industrial 20 hygiene with relationship - relationship to asbestos. 21 (By Mr. Blanks) 22 Q. Do you give opinions in this testimony 23 about the reasonableness of the conduct of Owens-Corning 24 Fiberglas Company in - in connection with its marketing 25 and production of asbestos insulation, its failure to 91 1 warn about the hazards of asbestos insulation that were 2 known to it in the 1940's and 1950's? 3 MR. CELBA: I think that's a bit 4 argumentative, Counsel, don't you 5 think? That's one objection. I also 6 object to the lack of foundation and 7 vague and ambiguous as to the 8 reasonableness. 9 (By Mr. Blanks) 10 Q. We can certainly appreciate why the lawyer 11 for Owens-Corning Fiberglas here today is objecting, 12 Dr. Peterson. But I would like an answer about the kind 13 of opinions that you expressed about the conduct of that 14 company in the sale of asbestos insulation materials. 15 A. In general -- 16 MR. CELBA: (Interrupting) The 17 same objection. 18 A. In general I don't express opinions about 19 the conduct of any asbestos manufacturing company. 20 (By Mr. Blanks) 21 Q. Have you served as an expert witness for 22 any other asbestos insulation company in litigation? 23 A. Yes, I -- I was at one time retained by 24 attorneys representing Owens-Illinois. I -- That was in 25 the early '80's, and I haven't done that for quite 92 1 awhile. 2 Q. So, you say you testified for 3 Owens-Illinois in asbestos litigation in the early '80's 4 but don't recall having done so since then? 5 A. That's correct. 6 Q. You will recalltheir productwas one that 7 went under the trade name of Kaylo? 8 A. Yes. 9 Q. Is this a productthat was used in Dow 10 facilities at anytime that you know of? 11 A. I don't know. 12 Q. Do youhaveany personal knowledge about 13 what particular brands of asbestos insulation materials 14 were used in Dow plants during any years at all? 15 A. No. 16 Q. How many times or in how many cases do you 17 recollect that you were retained by Owens-Illinois or 18 lawyers that were trying to defend them in asbestos 19 litigation? 20 A. One. 21 Q. All right, sir. And did you testify in a 22 trial? 23 A. No. 24 Q. When was it that you started testifying on 25 behalf of Owens-Corning Fiberglas Company in asbestos 93 1 litigation? 2 A. The late '80's is the best I can estimate 3 that. 4 Q. So, there was a half a decade gap in there 5 more or less when you weren't testifying for asbestos 6 companies? 7 A. I did some testifying on behalf -- 8 MR. CELBA: (Interrupting) I'm 9 going to object to the form of the 10 question. It's argumentative. 11 A. --- on behalf of a group of asbestos 12 companies, and I don't have the slightest idea who 13 comprised that group in that period of time. 14 (By Mr. Blanks) 15 Q. So, in the mid-'80's you recall testifying 16 for a group of asbestos companies? 17 A. Yes. 18 Q. All right, sir. Did you express opinions 19 about the reasonableness of their conduct in failing to 20 put warnings on their products to the effect that 21 asbestos dust inhalation could cause permanent or fatal 22 lung disease? 23 MR. CELBA: I object to the form, 24 and it's argumentative. 25 A. I testified as to nothing about warnings or 94 1 labels or whatever. This is not my area of expertise. 2 (By Mr. Blanks) 3 Q. Did you testify that the products were safe 4 to use, that the normal handling of the asbestos 5 insulations didn't pose any - any risk of harm to 6 workers? 7 MR. CELBA: I object; 8 argumentative. 9 A. My testimony in general was with regard to 10 the industrial hygiene aspects of evaluating exposures 11 to asbestos when handling asbestos-containing materials. 12 (By Mr. Blanks) 13 Q. And what - what is the gist of this 14 testimony, Dr. Peterson; that - that there is no hazard 15 posed to workers from an industrial hygiene standpoint 16 when handling asbestos insulation? 17 MR. CELBA: I object; 18 argumentative. Also it's vague, 19 ambiguous, overly broad. 20 (By Mr. Blanks) 21 Q. Are you looking up for divine inspiration? 22 A. No, I'm listening to the rain. 23 MR. CELBA: I object to the form 24 of that last question about divine 25 inspiration. 95 1 A. The fact of the matter is that I have 2 testified about the information that we had available in 3 the literature. It was concerned with the relationship 4 of handling asbestos-containing insulation materials and 5 the potential hazards that this handling posed 6 particularly with reference to the Fleischer paper and 7 so forth. 8 (By Mr. Blanks) 9 Q. So, was the - the substance of this 10 testimony that in the '50's when you came on the scene 11 that - that there wasn't information in the literature 12 that would suggest that asbestos insulation posed any 13 hazard to people working with it or around it? 14 A. The -- Not necessarily. The best piece of 15 information we had was the Fleischer, Viles, Gade and 16 Drinker paper, which was a rather complete industrial 17 hygiene survey of the use of asbestos-containing 18 materials in shipyards. And the conclusion of that 19 paper was that these materials could be handled with 20 little or no hazard to the people involved. 21 Q. That being people that had been involved 22 with it for only the war time years; correct? 23 A. The paper was published in 1946; and that 24 was the period involved, yeah. 25 Q. And most of workers that were studied in 96 1 that paper had only worked with asbestos insulation 2 during that war time period; isn't that true? 3 A. I recall some of the workers had had 20 or 4 30 years such experience. So --- 5 Q. (Interrupting) Yes, sir. 6 A. --- most of them had not; that's correct. 7 Q. And the ones that had had the 20 or 30 8 years experience did, in fact, have asbestos, didn't 9 they? 10 MR. CELBA: Well, I object; 11 argumentative. 12 A. It's been a long time since I have read the 13 paper. I don't recall that much detail about it. 14 (By Mr. Blanks) 15 Q. In any event, you would not just rely on 16 the - the concluding paragraphs or paragraphs of a - 17 what you'd call a rather complete industrial hygiene 18 survey to - to relay the full meaning of the study, 19 would you? 20 MR. CELBA: Well, I object; 21 argumentative. 22 A. No. In general when I read a paper, I read 23 a paper. 24 (By Mr. Blanks) 25 Q. All right, sir. So, it would be misleading 97 1 to just rely solely on the concluding paragraph for the 2 findings of the paper? 3 MR. CELBA: Object; 4 argumentative. And also it's vague 5 and ambiguous as to who is relying on 6 what at this point in time. 7 (By Mr. Blanks) 8 Q. Do - do you have any problem understanding 9 me or the objections from the Owens-Corning Fiberglas 10 lawyer, ones that lead you to - to want a further 11 explanation from me? 12 A. Well, I don't know -- 13 MR. CELBA: (Interrupting) I 14 object to that question, Counsel, to 15 the form. It's argumentative. And 16 that's vague and ambiguous. 17 A. I -- I don't usually in depositions or at 18 trial argue with attorneys. So, this is a somewhat new 19 experience. 20 No. If one is going to look at a paper and 21 rely on part of it, one generally looks at the summary 22 or the abstract of the paper. And furthermore, in that 23 particular paper, the last part of it is conclusions. 24 As I recall, there are several conclusions. And this is 25 the summing up of the people who were closest to the 98 1 information and who knew most about it. And, therefore, 2 I would regard that as being the reliable part of the 3 paper. 4 (By Mr. Blanks) 5 Q. Sure. Is it your opinion then that it's 6 reasonable to permit men to do asbestos insulation work 7 for say five years without providing them with proper 8 hygienic controls based on the conclusion of the - the 9 Fleischer-Drinker paper? 10 MR. ALMQUIST: I'm going to 11 object to the form of the question 12 because it doesn't specify a time 13 period. 14 MR. CELBA: I join in that 15 objection. 16 A. I -- Your question is - started out is it; 17 and, no, today it isn't. We know much more about 18 asbestos today and its hazards than we did in 1946. 19 (By Mr. Blanks) 20 Q. Do you think that it is reasonable to have 21 done that in the mid-1950's, Dr. Peterson? 22 A. I don't see why not. 23 Q. All right, sir. Is it the fact that the 24 exposures are only for a few years rather than an entire 25 work life that leads you to believe that's reasonable? 99 1 A. No. Mr. Blanks, the knowledge of the 2 latency of problems with asbestos has come about over a 3 period of time. In the 1950's and the 1940's we knew 4 very little about this. And, therefore, in the '50's 5 that would have been a reasonable conclusion. 6 So long as one stays below the threshold 7 limit value, which at that time was five million 8 particles per cubic foot, one could handle asbestos 9 insulating materials or whatever safely. That's the 10 best we knew. 11 Q. So, you are saying that as long as you 12 handled it and the total dust levels were below five 13 million particles per cubic foot, that it was being 14 handled safely in the '50's? 15 A. No, that the asbestos dust levels were 16 below five million particles per cubic foot. 17 Q. Is that what you were taught when you 18 started at Dow, that the five million particle per cubic 19 foot standard was to - to be five million particles of 20 asbestos per cubic foot rather than five million 21 particles of total dust? 22 A. Well, sure; that's what it says in the 23 T.L.V. list. 24 Q. That's what it said back in the '50's? 25 A. To the best of my knowledge, yes. 100 1 Q. All right, sir. Is this something that 2 Doctor - that Mr. Hoyle taught you; or do you recollect? 3 MR. CELBA: I'm going to object, 4 Counsel. He answered why he's -- He 5 gave you a reason for his answer. He 6 said that's what it said in the T.L.V. 7 Now you are becoming argumentative. 8 A. I -- I don't recall ever discussing a 9 T.L.V. of asbestos with Mr. Hoyle. 10 (By Mr. Blanks) 11 Q. All right, sir. Did - did Mr. Hoyle give 12 you a list of maximum allowable concentrations, a table 13 to use as guidelines in 1953 or '54 when you started 14 there? 15 A. I -- I certainly had access to such a 16 table. Where - where that access came from, I don't 17 have the slightest idea. 18 Q. Isn't it really the case, Dr. Peterson, 19 that the first time you have heard of the idea that the 20 five million particles was not total dust but was to be 21 five million particles of asbestos was from one of the 22 Owens-Corning Fiberglas lawyers that you were working 23 for? 24 MR. CELBA: I object; 25 argumentative. 101 1 A. No, sir, not by a long shot. The threshold 2 limit value list said the T.L.V. for asbestos is five 3 million particles per cubic foot in this particular era 4 we are talking about. That's where I learned it. 5 (By Mr. Blanks) 6 Q. When you were testifying on behalf of 7 Owens-Illinois in connection with asbestos cases in the 8 early '80's, did their lawyers tell you that they had 9 had had a study begun at the Saranac laboratories in the 10 early part of 1943 to consider the toxicity of the new 11 Kaylo product? 12 A. Yes. 13 Q. Did they give you copies of the 14 correspondence that they had with Dr. Gardner at Saranac 15 about that study? 16 A. I don't believe the attorneys had 17 correspondence with Dr. Gardner. 18 Q. Did they give you copies of the preliminary 19 reports on the toxicity studies? 20 A. It's been 10 or 12 years since I did this 21 kind of work, and I don't recall precisely what 22 information I had from them. 23 Q. Did the Owens-Illinois lawyers give you any 24 information about cases of asbestosis in people that had 25 been using their products or had been working with 102 1 insulation during the 1940's? 2 A. As I say, I don't recall in any detail at 3 all what information I had. I have read an awful lot of 4 material since then; and what happened then, I don't 5 recall. 6 Q. Have you kept any of those papers that the 7 Owens-Illinois lawyers gave you about the Kaylo studies? 8 A. I know that I have a copy of the - the 9 Gardner paper. And I have a copy of a subsequent paper. 10 I have forgotten who the author was. 11 Q. Have - have you brought those with you 12 today, sir? 13 A. No, sir. 14 Q. Do you have them with you athome? 15 A. I have them at home. 16 Q. All right, sir. I'm just wondering why you 17 didn't think those were responsive to the - the Subpoena 18 that was served on you? 19 A. I brought as much as I could carry. And 20 that's all I can tell you. There is -- I have a library 21 at home. I simply couldn't bring everything that I had. 22 Q. All right, sir. 23 A. Besides, I was fully confident that you 24 would have copies of those papers anyway. 25 Q. Well, I'm -- I'm just curious about what - 103 1 what, in fact, you do have along these lines. And, 2 though, you were kind enough to bring various articles 3 you authored; we were not limiting the request to that. 4 But perhaps we can resolve this amicably with Dow's 5 attorneys and you during the recess rather than take our 6 time with it now. 7 Well, in the more recent times when you were 8 working for the Owens-Corning Fiberglas lawyers, did 9 they make known to you when - when you were being their 10 expert witness and being paid by them to testify that 11 they had had reports of insulators who had developed 12 asbestosis back as early as 1944? 13 MR. CELBA: I object; 14 argumentative. 15 A. No Owens-Corning Fiberglas specific 16 information was presented to me. 17 (By Mr. Blanks) 18 Q. Wait a minute. Through all this time that 19 you have testified for Owens-Corning Fiberglas, they 20 have not - their lawyers or Owens-Corning Fiberglas has 21 not provided you with information about what they had in 22 their files concerning cases of asbestosis in the '40's 23 or the '50's? 24 A. That's correct. 25 MR. CELBA: Counsel, I object as 104 1 argumentative. This is just being 2 done for I don't know what purpose. 3 MR. BLANKS: Well, I can 4 understand ... 5 MR. CELBA: (Interrupting) Other 6 than making an argumentative record 7 for the Court. You could -- How about 8 saving this for your closing 9 argument? 10 (By Mr. Blanks) 11 Q. Do you know this lawyer from Owens-Corning 12 Fiberglas who keeps making these objections, 13 Dr. Peterson? 14 MR. CELBA: I object to the form 15 of the question, Counsel. 16 (By Mr. Blanks) 17 Q. Have you -- Sir? 18 A. Yes, I know him. 19 Q. Have you worked with him before in - in 20 asbestos litigation? 21 MR. CELBA: The same objection. 22 A. Yes. 23 (By Mr. Blanks) 24 Q. What - what is his name? 25 A. Steve Celba. 105 1 Q. Where is he from? 2 A. Milwaukee. 3 Q. How many cases have you worked with him on, 4 approximately? 5 A. Five or six perhaps. I don't recall 6 exactly. 7 Q. Does this go back over a few years time? 8 A. Yes, two or three years, something on that 9 order. 10 Q. What - what - what other kind of 11 information has he provided you about Owens-Corning 12 Fiberglas Company and its knowledge of asbestos hazards 13 from the past? 14 MR. CELBA: I'm going to object, 15 Counsel. I believe the testimony was 16 that I've provided him nothing with 17 respect to Owens-Corning Fiberglas. 18 A. My -- Well, this is correct. I have been 19 providing nothing whatsoever. My -- This is not my area 20 of expertise. My area of expertise is industrial 21 hygiene. And this is what I have testified to. 22 (By Mr. Blanks) 23 Q. Is it pertinent to an industrial hygienist 24 to know that there have been cases of occupational 25 disease in - in a group of workers that he's testifying 106 1 about? 2 MR. CELBA: I object as to 3 argumentative. And it's vague and 4 ambiguous as to what the word 5 "pertinent" means. Pertinent to 6 what -- 7 A. (Interrupting) Not necessarily. 8 MR. CELBA: --- and when? 9 (By Mr. Blanks) 10 Q. All right, sir. So, it wouldn't be 11 important to you to know about cases of asbestosis among 12 insulators in - when you are giving testimony in - in 13 asbestos disease cases among insulators. Is that what 14 you are saying? 15 MR. CELBA: The same objection; 16 repetitious and argumentative. 17 Counsel, at this point in time you are 18 badgering the witness. 19 MR. BLANKS: Call -- Go ahead and 20 call the Judge. 21 MR. CELBA: I don't have to call 22 the Judge. I'm making a record. What 23 do you want me to call the judge for? 24 A. My -- This gets into an area of philosophy. 25 It gets into an area of interest. It gets into areas of 107 1 expertise. And for the most part I don't put much 2 reliance in case reports in the literature, which is 3 what you apparently are referring to with regard to any 4 disease or its possible cause. What I tend to rely upon 5 as an industrial hygienist is industrial hygiene 6 surveys, epidemiological studies and the like. And in 7 fact, I tend not to put much credence in an 8 epidemiological study unless it has been replicated 9 somewhere. 10 So that the case reports that one can find 11 here and there are not particularly meaningful to me. 12 (By Mr. Blanks) 13 Q. All right, sir. What - what reliance do 14 you place on toxicological data? 15 MR. CELBA: I'm going to object 16 to vague and ambiguous as to what 17 "toxicological data" you have 18 reference to. 19 A. It depends upon who has done it; how they 20 have done it; how many animals were used and a whole lot 21 of things that you didn't specify. 22 (By Mr. Blanks) 23 Q. Okay. How about the toxicological studies 24 that were done at Dow; were those of - of a sort, of a 25 quality that - that you would rely upon? 108 1 A. Sure. 2 Q. How about the toxicological work that was 3 done at Saranac laboratories during the '40's and the 4 '50's -- 5 MR. CELBA: (Interrupting) I am 6 going ... 7 (By Mr. Blanks) 8 Q. --- is that the sort of - of work that you 9 would rely upon? 10 MR. CELBA: I'm going to object 11 as to vague and ambiguous as to what 12 toxicological and definite work was 13 done at Saranac laboratories. That 14 seems to be overbroad in nature. 15 A. Saranac had at that time - Saranac labs had 16 a good reputation. Although I -- In the '50's I knew 17 little more about Saranac Lake than that. 18 (By Mr. Blanks) 19 Q. All right, sir. 20 A. So, in that period of time I would have 21 really no basis to say yes or no. 22 Q. Were you provided with any - any evidence 23 when you were testifying on behalf of Owens-Corning 24 Fiberglas to show that - that Owens-Corning Fiberglas 25 made known to their customers and the users of their 109 1 products that asbestos insulation, particularly Kaylo, 2 should be handled as a hazardous material? 3 MR. CELBA: I object to the form. 4 It's repetition. It's been asked and 5 answered. 6 A. Yeah, I -- I have been provided with no 7 information regarding Owens-Corning Fiberglas; 8 essentially none. 9 (By Mr. Blanks) 10 Q. So, in other words, they have intentionally 11 kept you ignorant about the information they had in 12 their files about asbestos? 13 MR. CELBA: Are you surprised 14 that I'm objecting at this point in 15 time to argumentative? And again, 16 it's repetitious. 17 A. Well, in the first place I don't know what 18 their motives are. I have no way of knowing what their 19 motives are. In the second place, I have plenty to do 20 without reading company files and stuff. And I would 21 just as soon avoid it personally. 22 I don't care because whatever I would find 23 in Owens-Corning Fiberglas files would have nothing 24 whatsoever to do with me as an industrial hygienist 25 unless that material were presented by industrial 110 1 hygienists or occupational physicians. 2 (By Mr. Blanks) 3 Q. So, even though you are taking their money 4 to testify in lawsuits on their behalf - "their" meaning 5 Owens-Corning Fiberglas - you do not consider it 6 pertinent to your industrial hygiene testimony to know 7 what Owens-Corning Fiberglas knew during these same 8 years that you are testifying about? 9 MR. CELBA: I object; repetitious 10 and argumentative. 11 A. That's correct. 12 MR. CELBA: What is that Judge's 13 number? 14 (By Mr. Blanks) 15 Q. Did you ever meet any of the employees or 16 former employees of Owens-Corning Fiberglas during -- 17 MR. CELBA: (Interrupting) I 18 object ... 19 (By Mr. Blanks) 20 Q. --- any years? 21 MR. CELBA: ... as to repetitious. 22 It has been asked and answered. 23 A. Yes. 24 MR. CELBA: It's argumentative. 25 A. Yes. In fact, I know that I have met two 111 1 Owens-Corning Fiberglas employees. There may have been 2 others. 3 (By Mr. Blanks) 4 Q. Could you tell me who they were. 5 A. One was a young lady named Kathy Johnson 6 with whom I worked for about a year by correspondence on 7 a project after she had left O.C.F. And before he went 8 to work for O.C.F., I went to school with Dr. Konzen. 9 Q. Dr. Konzen? 10 A. Yes. 11 Q. First name was what? 12 A. John I believe. 13 Q. You never met Ed Ames, did you? 14 A. The name is not familiar. 15 Q. Did you ever meet a gentleman named Hazard? 16 A. Bill Hazard didn't work for O.C.F.; but, 17 yes, I know Bill. 18 Q. Who do you associate him with? 19 A. Owens-Illinois. 20 Q. Owens-Illinois. Did you meet him then in 21 connection with your litigation, or had you known him 22 before? 23 A. Oh, I -- I have never talked to him with 24 respect to litigation. I have known him since the late 25 '50's anyway. 112 1 Q. Was he still with Owens-Illinois when you 2 last knew of him? 3 A. Yes. 4 Q. Did he, too, testify in any of these cases 5 that you were involved in? 6 A. Not that I'm aware of. I am usually not 7 aware of who testifies in addition to myself. But I 8 don't think he did. I just don't know. 9 Q. Dr. Peterson, based on - on what you knew 10 or what you know about what was known in the 1950's or 11 what was believed about the - the hazards of asbestos 12 insulation and its handling, do you think that in the 13 in that period that it would - would have been 14 reasonable for a company that knew that asbestos 15 insulation could, in fact, cause disease in - in 16 insulators and other people working with the material to 17 keep that knowledge from their customers and from the 18 users of the products? 19 MR. CELBA: I'm going to object. 20 It assumes facts not in evidence. 21 It's also repetitious and it's 22 argumentative and lack of foundation 23 perhaps. 24 A. I'm afraid I'm a long way from being in a 25 position to tell companies what to do or what not to do. 113 1 And I have never been in such a position. Decisions - 2 In general as a scientist and an industrial hygienist, I 3 am all for education. I'm all for complete disclosure 4 of information in this area. I also recognize that I am 5 not a - a manager or a President of a company and have 6 no input to such people. 7 (By Mr. Blanks) 8 Q. Yes, sir. 9 A. That's all. 10 Q. So, based on what you believe to be the 11 case in the '50's, is it your professional opinion that 12 it would have been reasonable during that time to 13 withhold from users of asbestos insulation products 14 information to the contrary of what you - you think was 15 the general belief at the time? 16 MR. CELBA: The same objection 17 as previously stated and lack of 18 foundation with respect to this - what 19 this witness just testified to. 20 A. In the '50's information that asbestos 21 could cause asbestosis was well known. I certainly was 22 aware of this, although I had no particular interest in 23 asbestos as a Dow industrial hygienist. How this 24 information could be kept from the scientific community 25 and the industrial hygiene community is beyond me. And 114 1 I don't know why anybody would try to do such a thing. 2 Therefore, I would consider it nonsense. 3 (By Mr. Blanks) 4 Q. So, if I understood you, you are saying 5 that - that what was known, for example, at 6 Owens-Corning Fiberglas and Owens-Illinois in this era 7 about the capability of asbestos insulation to cause 8 disease was in the literature; and, therefore, knowable 9 to companies like Dow and - and others? 10 MR. ALMQUIST: I'm going to 11 object to that - the form of that 12 question because I think it totally 13 misstates the witness' testimony. He 14 has rendered no such testimony. 15 MR. CELBA: I join in the 16 objection. 17 A. I have no way of knowing what was known at 18 Owens-Corning or Owens-Illinois truly, so that I really 19 can't answer your question. 20 (By Mr. Blanks) 21 Q. Okay. So, you don't know whether they 22 actually published what they knew or did not? 23 MR. CELBA: Counsel, I am going 24 to object; argumentative again and 25 lack of foundation. 115 1 A. I know that Owens-Illinois sponsored animal 2 research on Kaylo. I know that the results of that 3 research were published. I -- I don't see what you are 4 getting at honestly. So, I have no evidence or even 5 intimation that Owens-Illinois attempted or would want 6 to attempt to withhold information about their product. 7 I know nothing as I have said about O.C.F. 8 (By Mr. Blanks) 9 Q. You know that this information then was 10 available to Dow in the published literature? 11 MR. ALMQUIST: What information 12 are you speaking about? 13 (By Mr. Blanks) 14 Q. The one we have just described; the 1952 or 15 '51 report that you have referred to. 16 A. Well, sure, we subscribed at Dow to the 17 Archives of Environmental Health or whatever it was 18 called at that point. So, sure, it was available to us; 19 certainly. 20 MR. ALMQUIST: Lunch break. 21 MR. BLANKS: Okay. 22 23 (A LUNCH BREAK WAS TAKEN.) 24 25 116 1 (By Mr. Blanks) 2 Q. During your years at Dow was it the case, 3 Dr. Peterson, that - that you had available to you a 4 wide range of - of professional journals in the field of 5 occupational health and industrial hygiene? 6 A. Yes. 7 Q. The company maintained a pretty complete 8 technical library, did it? 9 A. Yes. 10 Q. Did they have a librarian to help you to 11 get things that either weren't there or to help you find 12 things that were there in the library? 13 A. As I recall several librarians. 14 Q. And wasn't there also some sort of a - a 15 reference system that Dow had, a technical reference 16 index or something like that? 17 A. There was something called the central 18 research index, which was really a repository of reports 19 from everywhere at Dow to the best of my knowledge. I 20 don't think it had anything else in it, just Dow 21 reports. 22 Q. Oh, it was internal documents? 23 A. Yes. 24 Q. I see. So, a way of organizing the 25 research work and reports on such work that had been 117 1 done at Dow for the use of Dow professionals or 2 employees? 3 A. Yes, to the best of my knowledge. Although 4 I -- All I had was input to it. I never had anything 5 from it. 6 Q. Was it your practice during those years you 7 were an industrial hygienist at Dow to try to stay 8 abreast of the - of the literature in your field? 9 A. As best as I could, yes. 10 Q. And were you as best you could fairly 11 successful at doing that? 12 A. I think so. 13 Q. Do you recall any of the professional 14 journals that you followed during those years in the 15 '50's and the '60's? 16 A. I became a member of the American 17 Industrial Hygiene Association as soon as I could in 18 1956, and from then on had what was first called the 19 A.I.H.A. Quarterly, later the A.I.H.A. Journal, which 20 was my magazine. At the biochem research lab we had 21 subscriptions to several other journals, particularly 22 the A.M.A. Archives of Environmental Health. 23 We had the Industrial Hygiene Digest or 24 Industrial Health Digest, whatever it was called. We 25 subscribed to the Journal of the American Medical 118 1 Association. We had at the biochemical lab index 2 Medicus and possibly chemical abstracts -- No, we 3 probably had biological abstracts, not chem abstracts 4 and this kind of thing. 5 Q. Were you thinking of the Industrial Hygiene 6 Foundation's publication called the Industrial Hygiene 7 Digest? 8 A. Yes. 9 Q. Did you yourself attend any meetings or 10 functions of the Industrial Hygiene Foundation? 11 A. No, sir. 12 Q. You were active in your association, the 13 American Industrial Hygiene Association, were you not? 14 A. Yes, I was. 15 Q. What did that involvement consist of during 16 that - that first decade of your practice? 17 A. I became a member of the Hygienic Guides 18 Committee in the late '50's or mid-'50's and remained a 19 member until just about the time I left Dow. The last 20 three years or so I was chairman of that group. We 21 started a local section of the American Industrial 22 Hygiene Association in Midland. And as I recall, I went 23 through all the offices in the local section. And there 24 were probably other activities, but those are the ones 25 that stick in my mind. 119 1 Q. You would have been a fairly regular 2 attender of the annual meetings as well? 3 A. No, we took turns going to the annual 4 meetings so that I went to about one out of three. 5 Q. And then whoever went that year would bring 6 back the printed material that was handed out then if 7 there was any and notes and discuss with the colleagues 8 who were left behind topics of interest that were 9 covered I suppose? 10 A. Theoretically that is the way it worked, 11 and sometimes it actually did work that way when we had 12 time to do such things. At the conferences, there 13 wasn't a great deal of printed material handed out as I 14 recall. 15 Q. That would be followed -- That would follow 16 later in the journal or the quarterly? 17 A. Yes, if one presented a paper at the annual 18 conference, the journal had first crack at publishing 19 that paper. And -- Oh, quite a few of those papers were 20 published; but some of them weren't. And the only way 21 to know what was there was to attend the presentation of 22 the paper. 23 Q. I see. Is it the case, Dr. Peterson, that 24 you personally have never taken a midget impinger sample 25 of dust-containing asbestos? 120 1 A. Well, yes and no. I have never taken a 2 midget impinger sample for asbestos-containing dust. 3 However, I'm well aware that all air contains some 4 asbestos; and, therefore, every midget impinger sample I 5 took does contain some asbestos I'm sure or did. 6 Q. When did you become aware that all air as 7 you say contained some asbestos? 8 A. Oh, probably four or five years ago, 9 something on that order. 10 Q. So that we are clear then, you never used a 11 midget impinger to sample for asbestos in air? 12 A. That's correct. 13 Q. Did you have an opportunity over the lunch 14 hour to visit with the attorney for Owens-Corning 15 Fiberglas who is here today? 16 A. No sir. 17 Q. Had you talked with him before this 18 deposition began about your testimony today? 19 A. Oh, no. 20 Q. When was the last time you have seen that 21 that lawyer? 22 A. Earlier this Spring when I testified for 23 him in Wisconsin. 24 Q. Was that in a trial or in a deposition? 25 A. In a trial. 121 1 Q. Is that just a case just involving asbestos 2 insulation companies as opposed to let's say chemical 3 companies, refineries, that sort of thing; or do you 4 have any idea? 5 A. I -- Gee, I don't know who all the 6 defendants were. I have no particular interest in that; 7 so, I don't know. 8 Q. When you testify such as you did recently, 9 do you give any opinions; or do you just state facts as 10 you recall them? 11 MR. CELBA: I'm going to object. 12 This is repetitious. 13 A. I answer questions. 14 (By Mr. Blanks) 15 Q. Yes, sir. 16 A. If the questions call foran opinion, I 17 give an opinion. But I -- I don't focus on this - this 18 kind of thing at all. 19 Q. On whether it's an opinion or it's a fact 20 statement? 21 A. That's right. 22 Q. Well, usuallyexpertsare hired to - to 23 give opinions. And that's why I was asking. 24 A. I understand that, and 25 MR. CELBA: (Interrupting) I 122 1 object to the statement of Counsel. 2 (By Mr. Blanks) 3 Q. You understand that? 4 A. I understand it. 5 MR. CELBA: I object to the form 6 of the question. 7 (By Mr. Blanks) 8 Q. So, are there any - any areas where you 9 you do give opinions about Owens-Corning products, 10 asbestos products? 11 A. Not per se, no. 12 Q. In your testimony forOwens-Corning 13 Fiberglas, do you give opinion testimony about 14 Owens-Corning's conduct? 15 MR. CELBA: I object; 16 repetitious. 17 A. No. 18 (By Mr. Blanks) 19 Q. Have you everoffered opinions then about 20 the conduct of the - the asbestos victims who are suing 21 Owens-Corning Fiberglas? 22 MR. CELBA: I object; 23 argumentative. 24 A. I -- I don't recall doing so. 25 123 1 (By Mr. Blanks) 2 Q. Well, what -- What do you, in fact, then 3 give opinions about? That's - that's what I would like 4 to understand. 5 MR. CELBA: I'm going to 6 object; vague, ambiguous, indefinite 7 and overly broad. 8 A. One area that I have given opinions about 9 is whether the T.L.V. for asbestos dust in air is a 10 T.L.V. for asbestos or a T.L.V. for total dust, for 11 instance. 12 (By Mr. Blanks) 13 Q. All right, sir. Before we come back to 14 that, could you share with me any other sorts of 15 opinions you recall giving in your testimony for 16 Owens-Corning Fiberglas. 17 MR. CELBA: The same objection. 18 A. I have given the same kinds of opinions 19 that we have already gone through here. For instance, 20 that the person who is closest to the source of a 21 material in air is the one who is undoubtedly exposed to 22 the greatest concentrations of such materials. I have 23 talked - given opinions concerning the aerodynamic 24 properties of particles in the air. This - this is kind 25 of industrial hygiene related material. 124 1 (By Mr. Blanks) 2 Q. All right, sir. Can you -- I mean that's 3 that's helpful. Can you recall anything - any other 4 general sorts of opinions that you express in this 5 category? 6 MR. CELBA: The same objection. 7 A. Not right offhand, no. Those are the 8 things that come to mind. But again, gee, file 9 testimony is really available to anybody; and - and you 10 can get that. 11 (By Mr. Blanks) 12 Q. Do you have copies of any of your trial 13 testimony? 14 A. I don't believe I have, no. I might have 15 one or two such things, but I ordinarily don't keep this 16 kind of information around. I have run out of storage 17 space. 18 Q. Do you find that - that the Owens-Corning 19 Fiberglas lawyers have available for your review your 20 prior trial and deposition testimony when you ask for 21 it? 22 MR. CELBA: Well, that assumes 23 facts not in evidence, that he asked 24 for it, Counsel. 25 A. I don't recall ever asking for it. So, 125 1 I -- I really don't know whether they have it or not. 2 (By Mr. Blanks) 3 Q. Has it -- Have they ever provided 4 transcripts of your prior testimony to you to look at, 5 to review? 6 A. Probably. I don't recall the 7 circumstances, but I would be surprised if that weren't 8 the case. 9 Q. All right, sir. So, you think that these 10 transcripts would be readily available from 11 Owens-Corning Fiberglas through its attorneys I suppose? 12 A. You will have to talk to them. I can't 13 speak for them. 14 Q. Now, you mentioned briefly before lunch 15 that it was your understanding that the so-called 16 threshold limit value for asbestos, which you said was 17 five million particles per cubic foot during past years, 18 was for asbestos particles and not for the total dust 19 count. Is that accurately recounting what you said? 20 A. I don't recall using the word particles. 21 Q. All right, sir. 22 A. But you used it properly; and, therefore, I 23 would go along with your statement. 24 Q. Well, in a - in a - in a nutshell then what 25 is the opinion you have expressed in the past about the 126 1 T.L.V. for asbestos, being one for total dust or for 2 asbestos? 3 A. Well, the T.L.V. for total dust was 50 4 million particles per cubic foot in this era until about 5 1971. And the T.L.V. for asbestos dust was five million 6 particles per cubic foot. That's hardly an opinion. 7 It's in the T.L.V. booklets. But apparently this is 8 challenged by some people. 9 Q. Now, you -- You said the T.L.V. for total 10 dust was 50 million particles? 11 A. Yes, sir, per cubic foot. 12 Q. For total dust of - of all kinds in the 13 work - work environment? I don't understand what you 14 are referring to. 15 A. The T.L.V. for total dust that - that does 16 not contain pneumoconiosis-producing materials such as 17 silica or asbestos and does not contain materials that 18 are otherwise toxic; in other words, the inert dusts. 19 Q. So, you are saying in the guidelines for 20 workplace exposures there is a 50 million particle per 21 cubic foot standard, or there was, for dust that didn't 22 contain any toxic contaminants? 23 MR. CELBA: Well, I'm going to 24 object --25 127 1 (By Mr. Blanks) 2 Q. (Interrupting) Is that - is that ... 3 MR. CELBA: --- he just gave the 4 answer, and you are restating it 5 incorrectly. Now, go ahead. 6 MR. BLANKS: Well, perhaps you 7 could state it correctly for us. 8 A. Well, again, I didn't mention -- 9 MR. CELBA: (Interrupting) He did 10 state it correctly. But go ahead. 11 A. I did mention the word toxic, and I know 12 this is a bone of contention as well in these kinds of 13 proceedings. The standards in the T.L.V. list for 14 mineral dusts had a T.L.V. for total dust for materials 15 that were not pneumoconiosis producing and which did not 16 contain otherwise toxic materials a standard of 50 17 million particles per cubic foot. The standard for 18 silica varied with the concentration of silica in the 19 dust, and the standard for asbestos dust was five 20 million particles per cubic foot. 21 (By Mr. Blanks) 22 Q. Am I understanding from this then that 23 that you don't regard either asbestos or silica to be 24 toxic materials? 25 A. In my lexicon toxicity is a property of 128 1 matter. It is something possessed by everything to a 2 greater or lesser extent. And under those 3 circumstances, silica and asbestos and other mineral 4 dusts are toxic. However, the effect of these materials 5 is exerted in general by something other than their 6 ability to be toxic or the effect that we worry about. 7 And in that respect, they aren't toxic. So, however you 8 want to take it, that's the way I have talked about it 9 and feel about it. 10 Q. Well, I just want to be able to communicate 11 with you. 12 A. Uh-huh. 13 Q. And it doesn't do any good for us to be 14 talking passed each other. So, your view is that 15 virtually every - every material, every compound is 16 toxic? 17 A. Not virtually. Everything is toxic, yes. 18 Q. Okay. 19 A. Yes, absolutely. Water is toxic. 20 Q. Okay. 21 A. Oxygen is toxic. If you start eating table 22 clothes, they are toxic as well. 23 Q. Okay. So, basically then you are defining 24 toxic to be - to be meaningless for purposes of - of 25 assessing or talking about the hazards of materials. 129 1 So, we have to speak in some other term; right? 2 MR. CELBA: I object to the form. 3 It's argumentative, whether you view 4 it as meaningless or not. 5 A. No, I think it is meaningless because we 6 have to talk about the toxicity of materials and 7 toxicity varies. Toxicity is an extrinsic property of 8 matter in the same way that mass is an extrinsic 9 property of matter. And you can't say you could ignore 10 mass and say it isn't there. It certainly is. Toxicity 11 is there as well. 12 Some materials have more of this property 13 than others just as some materials have greater mass 14 than others. The amount of mass or the amount of 15 toxicity, if you will, depends upon the amount of 16 material present; which makes it an extrinsic property. 17 (By Mr. Blanks) 18 Q. Well, I -- I really don't mean to be 19 arguing with you, but you - you spoke of the total dust 20 standard of 50 million particles to mean dust that 21 didn't contain either a pneumoconiosis-causing dust such 22 as asbestos or silica and dust that didn't contain other 23 toxic materials. I think that was your wording. 24 A. Materials that were otherwise toxic --25 Q. (Interrupting) Materials ... 130 1 A. --- than being a pneumoconiosis producing. 2 Q. All right. So, that pretty well rules out 3 all other materials in the universe. What - what does 4 it mean when you say "materials that are otherwise 5 toxic"? 6 A. Oh, there are all sorts of materials that 7 exist in particulate form that are otherwise toxic that 8 exert their toxicity by being inhaled and winding up in 9 the lungs or the stomach and getting to the body that 10 way. 11 Q. Well, I follow you. I'm just wondering 12 using your definition what then other particulates can 13 you name that - that's not toxic. 14 A. Oh, I'm sorry. Of course, everything is 15 toxic. The mineral dusts, total dust standard was 50 16 million particles per cubic foot for materials that did 17 not produce pneumoconiosis and were not otherwise toxic; 18 that is, did not exert any particular effect by virtue 19 of their toxicity on the body; that their effects were 20 exerted simply because there was too much dust, if you 21 will - materials such as chalk, for instance, or 22 charcoal; things that are essentially physiologically 23 inert and would exert their effects on the body by 24 simply being too much in the respiratory tract. 25 Q. Okay. Now, you said the silica standard 131 1 varied with the concentration of free silica in the 2 silica dust. 3 MR. ALMQUIST: I don't think he's 4 testified to that, Mr. Blanks. I 5 think that's ... 6 THE WITNESS: You are right, I 7 didn't. 8 (By Mr. Blanks) 9 Q. All right. 10 A. I just said silica. And if we are going to 11 be particular about it, we can talk about 12 crystalline-free silica; and the standard did - it 13 didn't start out that way but eventually it became a 14 standard that depended upon the percentage of 15 crystalline-free silica in the dust that one inhaled. 16 Q. And for asbestos of - was there any - any 17 variation for the asbestos standard with respect to the 18 percentage of asbestos in the dust that one inhaled? 19 A. Not directly in the T.L.V. list, no. 20 Q. You are saying the T.L.V. list simply 21 specified that the - the guideline, maximum amount 22 maximum allowable concentration then, then threshold 23 limit value later was five million particles per cubic 24 foot of asbestos? 25 A. Sure. And the same standard applied to 132 1 silica, for pure silica, five million particles per 2 cubic foot. 3 Q. Did this five-million-particle standard for 4 asbestos refer to particles of any particular size or 5 dimension? 6 A. No, except that people who were using the 7 standard were really expected to use the method for air 8 sampling upon which the standard was based, which was 9 the midget impinger. 10 Q. Now, where - where is that information 11 found? What - what reference can you give me for that 12 proposition? 13 A. I can't. It's simply that - one of those 14 things that industrial hygienists were expected to know. 15 We have as I mentioned earlier this morning literally 16 dozens of ways of sampling air for dust, for particulate 17 material. Each one of these methods will give a 18 different result. Therefore, if you are going to get a 19 result that is comparable to the results upon which the 20 standard is based, you must use a method that is 21 comparable to the method so used. 22 Q. In the 1950's when you started doing 23 industrial hygiene work or had your training, there 24 weren't dozens of - of ways to measure for dust in the 25 air, were there? 133 1 A. Yeah, probably. 2 Q. Which ones did you learn of? 3 A. We have already talked about them, the 4 methods that we had at Dow; and those were the ones that 5 I knew. 6 Q. Which ones would you use or were you taught 7 to use to measure for asbestos dust in air? 8 A. We -- I happened to use a filter method for 9 asbestos dust in the air. 10 Q. This was in the '50's? 11 A. This was in '58. 12 Q. What -- Could you tell me more about the 13 filter method. I mean what - what did this entail? 14 A. This was a method that used a mixed 15 cellulose ester membrane filter as the material through 16 which air was drawn to capture the dust. Then that 17 filter was examined microscopically to determine the 18 amount of asbestos or, in fact, the amount of - the 19 number of dust particles on it if you want to look at it 20 that way. 21 Q. Just using a light field microscope? 22 A. Yes. 23 Q. And this is the method that you were taught 24 to use at Dow, or is this just one that you stumbled on 25 to or what? 134 1 A. No, it's just one that I happened to use 2 when I did the sampling that I did do. 3 Q. Well, now, earlier you told me I think that 4 you hadn't done any sampling for asbestos dust at Dow. 5 And I apologize if I'm misrecollecting. What - what are 6 you referring to now, sir? 7 A. You asked me if I had done any asbestos 8 dust sampling at Dow with a midget impinger, and I said 9 no; and I have not. 10 Q. So, you have done some sampling for 11 asbestos dust at Dow? 12 A. Yes, I took -- I did this once as I recall. 13 Q. And what was the occasion of that? 14 A. This was a -- There was a gentleman who 15 worked in one of the technical service departments who 16 became ill, and the medical department asked the 17 industrial hygiene group to determine his exposures to 18 everything that he was working with. This was done in 19 earlier in 1954 I believe. And I did it. I was chosen 20 to do the job in 1958. 21 Q. You say something was done earlier in 1954. 22 What - what did you mean? You lost me there. 23 A. There was a survey of his exposures done by 24 one of the other Dow industrial hygienists. 25 Q. Oh, four years earlier? 135 1 A. Yes. 2 Q. I see. Okay. And what - what kind of work 3 was he doing that would have involved a potential 4 asbestos exposure? 5 A. He was working with floor tile 6 formulations, the object being that Dow apparently 7 wanted to get into this kind of business by furnishing 8 resins to floor tile manufacturers. In order to do 9 this, they had to show manufacturers of vinyl asbestos 10 tile, for instance, that Dow resins were at least as 11 good or better than and cheaper than or whatever the 12 materials that they were using. So, he was playing 13 around with asbestos floor tile or vinyl asbestos floor 14 tile type formulations. 15 Q. Did Dow actually set up a little production 16 line to - to make some sample asbestos, vinyl asbestos 17 floor tile? 18 A. I wouldn't call it a production line, no. 19 It was done on a laboratory scale by this gentleman and 20 a helper as I recall at the most a few times a month. 21 So, it wasn't a production line --22 Q. (Interrupting) Okay. 23 A. --- by a long shot. 24 Q. Sort of a little - not even a pilot plant, 25 but at - you said it was in a laboratory? 136 1 A. It was in a laboratory, yeah. 2 Q. But simulating what you would be doing in 3 actually producing the vinyl asbestos tile I suppose? 4 A. No, that wasn't the intent. The intent was 5 to produce a material that would be similar to that 6 produced when vinyl asbestos tile was produced, using 7 somewhat similar techniques; but certainly not identical 8 techniques by a long shot. There wasn't any attempt 9 made to copy production techniques that - to the best of 10 my knowledge. 11 Q. Just trying to end up with a finished 12 product that would be akin to what would be produced -- 13 A. (Interrupting) Yes. 14 Q. --- in the factory? 15 A. That's correct. 16 Q. Did Dow ultimately go into this business of 17 making vinyl asbestos floor tile? 18 A. I'm not privy to that information; but to 19 the best of my knowledge, no. 20 Q. Dow was -- 21 A. (Interrupting) Oh, Dow never tried to make 22 vinyl asbestos floor tile. 23 Q. Oh, they were going to make a vinyl 24 component to sell to the floor tile makers? 25 A. Correct. 137 1 Q. I see. So, you yourself actually took some 2 samples around this gentleman's work area while he was 3 doing the formulation of the vinyl asbestos tile? 4 A. Yes, I did. 5 Q. Why - why did you use this filter method 6 instead of using the midget impinger? 7 A. I used the filter method as a short cut so 8 that I could look at the results of the sampling. And 9 if the total dust concentration found on the filter was 10 less than the standard - the T.L.V. for asbestos, I 11 wouldn't have to go further and actually sample and have 12 the sample analyzed for asbestos. 13 Q. Now, why would that be so? 14 A. The standard for asbestos is or was five 15 million particles per cubic foot. If I sampled for 16 total dust and the total dust concentrations were less 17 than five million particles per cubic foot, obviously 18 then the asbestos dust concentration was less than five 19 million particles per cubic foot and I did not have to 20 sample specifically for asbestos. 21 Q. Okay. That - that makes sense. But why 22 not just go ahead and use the midget impinger and do it 23 the way that the standards called for? 24 A. There are many reasons for that. The first 25 one being that it is difficult to get good midget 138 1 impinger samples, particularly breathing zone samples, 2 because the person whom one is sampling - whose 3 breathing zone one is sampling has to in essence wear a 4 midget impinger that has liquid in it. And the liquid 5 can be either -- Well, that's beside the point. If he 6 bends over at the wrong time, the liquid gets sucked up 7 into the pump. And it's just easier, a lot easier to 8 use a filter method. 9 If, in fact, I had had to sample 10 specifically for asbestos dust, I would have used a 11 midget impinger. But it turned out that the 12 concentrations were well below five million particles 13 per cubic foot; therefore, there was no need to sample 14 specifically for asbestos. 15 Q. Was it also difficult to get midget 16 impinger samples for area monitoring purposes? 17 A. No. No. One could set those up. I -- I 18 just didn't. That's all. 19 Q. Okay. If you were going to take a sample 20 in the breathing zone of the worker, what - what would 21 you do, just come up near him with the midget impinger, 22 come within a - a foot of his nose or mouth and - and 23 just collect a sample? 24 A. That's the way we did it before we had 25 battery powered pumps, yes. 139 1 Q. How long does it actually take to collect a 2 sample like that, one sample? 3 A. Well, one tries to sample long enough so 4 that the impinger collects enough dust to count. In - 5 As a matter of fact, generally such samples run in the 6 order of 15 or 20 minutes in duration. 7 Q. I see. Now, how about when you are using 8 this filter method, what do you use to collect that 9 sample? I mean what draws the air across the filter? 10 A. An electric pump of some kind. Once we had 11 small battery powered pumps that could be carried on the 12 belt, these were used. Before we had battery powered 13 pumps, we had pumps we could plug into the wall and draw 14 air through the filter. 15 Q. How long does it take to collect one of 16 those samples? 17 A. Again, it depends upon what one is looking 18 for. You try to sample at a high enough flow rate for a 19 long enough period of time to get something on the 20 filter that you can analyze. 21 Q. Okay. Was it the case that this filter 22 method you used in 1958 to monitor the man who is using 23 asbestos to formulate - to work with the vinyl tile 24 formulation was capable of capturing asbestos particles, 25 asbestos dust? 140 1 A. Yes. In fact, the membrane filter method 2 is very, very close to being 100 percent efficient for 3 all kinds of dusts. It is far more efficient at 4 capturing dust than is the midget impinger. 5 Q. And, so, looking at that filter, the 6 membrane filter -- So, looking through the microscope at 7 the membrane filter you can then see asbestos dust 8 particles if they are present? 9 A. Well, you see dust particles. You don't - 10 You can't tell by looking whether they are asbestos or 11 not. In fact, I didn't do the analytical work. This 12 was done by another Dow lab that specialized in 13 microscopic analysis. 14 Q. Did you yourself ever do any counts while 15 you were at Dow for asbestos particles or fibers? 16 A. No, sir. 17 Q. That was always done by somebody else in 18 in the lab? 19 A. Well, as I said, I only took the sampling 20 under the one circumstance. And always is a pretty big 21 word to use for a single occasion. 22 Q. Okay. This is your - your only experience 23 at Dow with sampling air for asbestos? 24 A. To the best of my knowledge, yes. 25 Q. All right. 141 1 A. That's the only report that anyone has 2 found in the Dow files. 3 Q. And no - no others come to your mind? 4 A. No. In fact, many years ago I started in 5 depositions saying that I recalled doing sampling for 6 asbestos once; and I couldn't remember where or when. 7 And since I have read the report, my memory has been 8 refreshed. 9 Q. When did you get to read the report? 10 A. Oh, probably two or three years ago, 11 something on that order. 12 Q. So, in your training by Mr. Hoyle then, 13 you were taught to collect samples. I mean that - that 14 much you made clear. I'm wondering if he also taught 15 you then how to count the samples, to count for 16 particles in dust samples? 17 A. No, he did not. 18 Q. Did anyone teach you that? 19 A. When I was working on my Masters degree, I 20 did some counting of microscopic particles. These 21 happened to be droplets of water rather than fibers or 22 particles of solid material. And I did learn how to do 23 it then. But I never even looked through a microscope 24 when I was at Dow. There were other people we could 25 have do that. 142 1 Q. Well, okay. I -- I don't mean that to be 2 critical. I was just curious. 3 So, I guess it's safe to say then that 4 before - as of the time you left Dow in 1965 to go back 5 to school, you had never seen an asbestos particle or 6 fiber from - from an air sample? 7 A. I may have seen photographs, 8 microphotographs or photomicrographs in journal 9 articles. But in - in real time, no, I never did. I 10 didn't look through microscopes. That's a tough job. 11 Q. Now, you told us a few minutes ago that you 12 really couldn't tell when looking at the membrane filter 13 sample if the particles were asbestos or not. What 14 do -- What do you base that on? 15 A. Gee, quite a lot of reading; and also a 16 knowledge that the particle's size and shape gives very 17 little clue as to its origin. So that even a particle 18 that looks fibrous in nature, for instance, could be a 19 textile fiber. It doesn't have to be an asbestos fiber. 20 And you can't tell the difference under the microscope 21 to the best of my knowledge. 22 Q. Can you refer us, Dr. Peterson, to any 23 published literature from the '50's or even the '60's 24 that - that supports what you say that the threshold 25 limit value for asbestos of five million particles 143 1 referred to five million asbestos particles as opposed 2 to a total dust of five million particles containing 3 asbestos? 4 A. I doubt if the question ever arose. 5 Q. Is that a "no"? 6 A. That's a no. 7 Q. Is it - is - is this matter specifically 8 addressed in any of the - the guideline publications 9 that contain the T.L.V.'s; do you know? 10 MR. CELBA: I'm going to object. 11 It's an argumentative type of question 12 in that you are assuming there was a 13 question created by it. This 14 individual has testified there was 15 not. I object to the form of the 16 question. 17 A. The - the only thing I can think of that 18 addressed this particular kind of question was the 1938 19 Dreessen report upon which the standard was based where 20 the concentration of asbestos in the dust that people in 21 these textile plants were breathing was on the order of 22 90 percent of the dust, something on that order; and, 23 therefore, this standard is based on essentially pure 24 asbestos in the air. 25 144 1 (By Mr. Blanks) 2 Q. And that information about the - the 3 percentage of the dust that was asbestos and so forth 4 came from the samples that Dreessen was taking in those 5 plants? 6 A. Yes. I don't think Dreessen did any 7 sampling, but ... 8 Q. The Dreessen group, whoever he was 9 reporting on? 10 A. Yes. 11 Q. So, at least at Dow and in your mind the 12 five million particle standard was one for total 13 asbestos and not total dust? 14 A. Oh, of course. 15 Q. Okay. And that was the casethrough all 16 the years that you worked there andas far as you know 17 thereafter? 18 A. Sure. I'll go back and say that there were 19 many times when we would or could have taken total dust 20 samples with the idea being that if the concentration 21 were less than five million particles per cubic foot, 22 that there was no need to take a sample specific to 23 asbestos. 24 Q. Okay. But where you were sampling for 25 asbestos, that's what you were counting and reporting or 145 1 that's what would have been counted and reported at Dow; 2 that is, the asbestos content of the sample? 3 A. Oh, sure, if - if, in fact, that could be 4 done. And quite often it could not be done because the 5 amount of material that we collect in an impinger or on 6 a filter is minute. And ordinarily the information that 7 relates to how much of that material is asbestos comes 8 from a different source, at least in those days it did 9 because we didn't have electron microscope probes and so 10 forth where one could analyze individual particles that 11 we have today. 12 Q. Now, wait. What are you telling me? You 13 are telling me you could see the asbestos particles to 14 count them or you couldn't? 15 A. No, you could see them, sure. 16 Q. And you could count them? 17 A. And you could count them. 18 Q. Uh-huh. 19 A. But you don't know whether they are 20 asbestos or not when you look at them under the 21 microscope and count them. All you -- All you see is 22 particles. And I have to go back and correct myself. I 23 did look through microscopes occasionally, and that's 24 when I used the B & L dust counter; and then I had to do 25 the counting. 146 1 But what you see is particles. And you 2 don't have any real clue as to what they are from the 3 sample, the air sample that you have taken. The 4 technique at that time was to use what are called rafter 5 samples. And one can find references to rafter samples 6 in the literature. This is where the dust has 7 accumulated somewhere, and you take a handful of it and 8 have it - it analyzed to determine how much asbestos is 9 in the dust, for instance. And then you apply that 10 percentage to the air samples one takes. 11 This is the technique that was used by the 12 Dreessen crew in 1938. And it's a perfectly acceptable 13 way of doing things. 14 Q. Was this the approach you used at Dow when 15 sampling for asbestos to - to take rafter samples or ... 16 A. It's an approach that we could have used. 17 As I told you, I only did it once; and I don't know 18 what the other fellows did. I don't have direct 19 knowledge. 20 Q. Well, have you heard about any asbestos 21 sampling done at Dow let's say in connection with 22 insulation activities? 23 A. I understand that Mr. Hoyle took some 24 samples. I was not aware of it at the time. And it 25 may have been after my time there. I -- I don't 147 1 remember. 2 Q. When do you think it became possible to 3 actually see the asbestos dust in the samples that you 4 collected -- 5 MR. CELBA: (Interrupting) I'm 6 going to ... 7 (By Mr. Blanks) 8 Q. --- to distinguish them from ... 9 MR. CELBA: ... object to the 10 form of that as misconstruing the 11 testimony of this witness. 12 (By Mr. Blanks) 13 Q. When do you think, Dr. Peterson, it became 14 possible to distinguish the asbestos particles from 15 other dust particles in a sample collected from the air? 16 MR. CELBA: The same objection. 17 A. I really can't point at a date or even an 18 era. All I can say is that with the advent of the 19 electron microprobe it became possible to determine the 20 elemental composition of individual particles. This 21 method is far too time-consuming and expensive to use 22 for most air sampling, however. So, I -- I don't know 23 that this can be done today with an air sample with any 24 great amount of success, the ordinary air sample we 25 take. 148 1 (By Mr. Blanks) 2 Q. Was - was it the approach at Dow in the 3 '50's when you were there to - to measure for asbestos 4 dust in connection with insulating activities? 5 A. Well, I never did. And I -- I don't know 6 that anybody else did either. 7 Q. Do you know when this was first done at 8 Dow? 9 A. No, not right offhand. 10 Q. Was it the - the policy at Dow to expose 11 workers to concentrations of pneumoconiosis-producing 12 dust in excess of the T.L.V. in the 1950's? 13 A. No. 14 Q. Did that happen atDow? 15 A. I imagine so. 16 Q. What did the industrial hygiene department 17 do to be - to be certain that exposures to dust like 18 asbestos or free silica were not above the standard or 19 the guideline of the 1950's? 20 A. Well, in the first place industrial hygiene 21 is far from a certain activity. There is no way one can 22 be certain about anything which is why I answered your 23 question "I imagine so" when you asked it. I have no 24 way of telling whether people were ever exposed above 25 the numerical value of the T.L.V. 149 1 If the question had arisen, and I'm not at 2 all sure that it did - in fact, it certainly did not to 3 me - we would have checked the literature. We would 4 have found the Fleischer-Drinker report and found that 5 in general insulators were not at risk and we would have 6 said, "Fine, that probably applies to our people, too." 7 But I don't think the question ever arose when I was 8 there. 9 Q. You - you think that it would have been 10 reasonable in the 1950's to rely on the 11 Fleischer-Drinker article about shipyard insulators to 12 conclude that insulators in Dow plants would not be at 13 risk from asbestos exposure? 14 A. Rely upon is a difficult phrase to handle. 15 The technique used in that particular survey was using 16 the B & L microscope which gives you extremely 17 conservative results. People on board ship in general 18 are in much more confined places than people in a 19 chemical plant. And under those circumstances it 20 appears to me now and it probably would have appeared to 21 me then that conservatively one could say the chances of 22 being overexposed at Dow were nil. 23 Q. And that would have been your view in the 24 1960's as well? 25 A. Sure, probably. 150 1 Q. Apparently you never felt the need to 2 confirm that - that notion by taking samples of people 3 doing insulating work. And you don't recall your 4 colleagues doing any during the '50's, do you? 5 A. I do not recall my colleagues doing 6 anything. And the business about not feeling a need to 7 do it, I'm - I'm not sure the question ever crossed my 8 mind as to the possibility of doing it or a reason for 9 doing it. 10 Q. Is that because you were working on other 11 things or ... 12 A. We were all awfully busy. 13 Q. All right, sir. 14 A. Always. 15 Q. Well, I can appreciate that three men and 16 even five men would be awfully busy in those years. 17 A. We were. 18 Q. Can you tell us whether or not 19 asbestos-containing insulation was being used in Dow 20 plants in the 1950's when you began doing industrial 21 hygiene work? 22 A. Not from my own knowledge, no. I don't 23 have any idea whether it was or not. 24 Q. Have you ever heard that that was the case? 25 A. Yes, certainly. I read Mr. Hoyle's 151 1 deposition, and I know that at one point he became aware 2 of this. I certainly wasn't aware of it. 3 Q. You weren't aware of it until you read 4 Mr. Hoyle's deposition? 5 A. That's about right. 6 Q. It's your impression that thinking back now 7 that none of the other industrial hygienists were aware 8 of the presence of asbestos insulation in Dow plants 9 during the '50's? 10 MR. ALMQUIST: I'm going to 11 object to the question. It calls for 12 speculation on the part of the witness 13 in the sense that it asks him to 14 speculate as to what somebody else's 15 knowledge or opinion was. 16 A. The best -- To the best of my recollection 17 we never discussed the subject. And I have no way of 18 knowing what the other industrial hygienists knew or 19 felt. 20 (By Mr. Blanks) 21 Q. What things did you do to acquaint yourself 22 with the scope of the potential occupational health 23 hazards in Dow plants when you started your - your 24 training there in 1953? 25 A. Well, you will recall that I told you that 152 1 one of the things I did in my training was to visit all 2 of the production plants. And I also visited pilot 3 plants and semi-plants for walk-throughs, if you will. 4 And that was probably the best introduction I had to the 5 potential for hazards in those areas. 6 Q. Do you recall seeing thermal insulation in 7 the - in the Dow units, the production units? 8 A. Sure. 9 Q. But you didn't learn then and have really 10 never learned to your personal knowledge what - what 11 that insulation was made of? 12 A. That is correct. 13 Q. Did you observe during these walk-throughs 14 in the plants people applying insulation or removing 15 insulation? 16 A. No, not that I can recall. 17 Q. Did you have fabricatingshops anywhere in 18 the Dow plants that - that would be a place where people 19 would work on the - the asbestos insulation or 20 insulation, cut it, fit it, shape it? 21 A. I don't recall any such fabrication 22 facilities, no. 23 Q. As you look back today, do you think that 24 the industrial hygiene group should have - should have 25 known or found out in the 1950's that the insulation in 153 1 the plants did contain asbestos? 2 A. I don't -- I don't see how I can go back 3 and - and change things in the '50's even if I would 4 want to. All I can tell you is that we didn't. And I 5 at that time saw no reason to do so. And I don't see 6 how I could change my mind from the present going back. 7 Q. I see. But by that time you also knew that 8 asbestos was a cause of asbestosis, a lung disease that 9 could be fatal, did you not? 10 A. Yes, I did know that. 11 Q. And by that time you knew that asbestos was 12 regarded as being a probable carcinogen, did you not? 13 MR. ALMQUIST: What time are you 14 talking about, Mr. Blanks? 15 MR. BLANKS: I'm talking about in 16 the 1950's when this gentleman began 17 his career under the tutelage of 18 Mr. Hoyle. 19 A. No, I had no idea that asbestos was a 20 probable carcinogen at that time. 21 (By Mr. Blanks) 22 Q. Did you regard it at that time as being a 23 possible carcinogen? 24 A. No. 25 Q. Did you think it even to be suspected of 154 1 being a carcinogen? 2 A. No. 3 Q. At what point in yourcareer did you come 4 to a state of awareness that asbestos was - was regarded 5 as a probable carcinogen? 6 A. 1965. 7 Q. Whatwas theoccasion of that, 8 Dr. Peterson? 9 A. I left Dow and went back to school. And 10 when I got to Ann Arbor, the ability of asbestos to 11 cause mesothelioma was the topic of conversation. We 12 all discussed it. We were all surprised at it. To the 13 best of my knowledge I certainly was. But I became 14 aware at that time of Dr. Selikoff's work. 15 Q. Now, having since then learned more and 16 perhaps learned more of the literature, do you - do you 17 have an opinion that you have ever expressed before 18 about when it became established that asbestos was a 19 probable carcinogen? 20 MR. CELBA: It assumes facts not 21 in evidence. 22 A. No. 23 (By Mr. Blanks) 24 Q. You have never done any review of the 25 literature to - to acquaint yourself with that? 155 1 A. I have done a review of the literature. 2 However, I have never been asked that opinion in 3 deposition or in Court. 4 Q. Have you formed an opinion based on your 5 review of the literature? 6 A. I -- Not really because it depends upon an 7 awful lot of things. It depends upon a knowledge of 8 hindsight in the first place. All - all I can talk 9 about really in trying to put myself back in the '50's 10 and '60's is what I did know. And I did not have any 11 idea whatsoever that asbestos could cause cancer. So 12 far as I'm concerned that knowledge came to me in 1965. 13 Q. Okay. I accept that. 14 A. Okay. 15 Q. I'm not - not arguing with that point. I'm 16 just wondering if you have since done any studying that 17 would cause you to have an opinion about when you could 18 have known that had you been following the literature. 19 MR. ALMQUIST: And I think you 20 have asked that question, and he's 21 answered it already at least twice. 22 MR. CELBA: I join in the 23 objection. 24 A. No, not really. I just don't think of 25 things that way. That's a legal way of looking at 156 1 things, and I don't think of them that way. I'm an 2 industrial hygienist. 3 (By Mr. Blanks) 4 Q. Knowing what you know today as an 5 industrial hygienist, what do you think Dow should have 6 been doing in the mid-1950's to control for potential 7 asbestos exposures in its plants? 8 A. Probably what Dow was doing at the time. 9 I -- Dow had no way of doing things differently to the 10 best of my knowledge. 11 Q. In the mid-1950's when you started at Dow 12 did Dow have the capability of using wet methods to 13 handle asbestos insulation in its plants? 14 A. Sure, of course. 15 Q. Wetting agents were known to exist then, 16 were they not? 17 A. Well, back then abouttheonly wetting 18 agent we had around that was commonly available was 19 soap. 20 Q. Detergent? 21 A. We didn't have much in the way of 22 detergents in the early '50's. 23 Q. Okay. 24 A. There were some available. But, sure, wet 25 methods could be used; and wet methods were being used 157 1 with silica, for instance. If the question had 2 arisen -- Well, there is a lot of ifs; and I -- I don't 3 deal in ifs generally. 4 Q. Okay. 5 A. I try not to. 6 Q. And in 1953 or thereabouts Dow would have 7 had the capability to provide its insulators with 8 protective clothing while doing asbestos work; wouldn't 9 that be true? 10 A. Well, of course. But as I have indicated 11 the protective clothing isn't to protect the insulator 12 or the worker. It's to prevent the spread of the 13 material more than anything else. 14 Q. Yes, sir. 15 A. So --16 Q. (Interrupting) Such as, for example, 17 carrying asbestos dust home to the laundry room where 18 people in the house could be exposed to it? 19 A. Well, I suppose that's one of the scenarios 20 that one could think about. 21 Q. And I suppose Dow had the capability to 22 provide airline respirators for people working with 23 asbestos in - in the mid-1950's; isn't that so? 24 A. Well, it would depend to a great extent 25 upon where they were doing the work. I -- If the work 158 1 was being done inside of a building, sure, airline 2 respirators could have been provided. If the work is 3 being done on the high temperature steam lines that ran 4 throughout the plant, probably not. It probably would 5 have been impractical to provide airline respirators. 6 Q. So, certainly Dow had the capability to 7 provide mechanical filter respirators in the early 8 1950's to protect against mineral dusts such as 9 asbestos; isn't that so? 10 A. Yes, such respirators were available. 11 Q. And in any event, as an industrial 12 hygienist you would view respirators generally as being 13 your - the last line of defense against dust exposures, 14 wouldn't you? 15 MR. CELBA: I'm going to object 16 as vague and ambiguous and 17 argumentative. 18 (By Mr. Blanks) 19 Q. I can see why Counsel for Owens-Corning 20 Fiberglas would object to that, Dr. Peterson. But would 21 you agree with me or not, sir? 22 MR. CELBA: I'm going to move to 23 strike your observation, Counsel, 24 although it's appreciated. 25 A. The -- It depends on the circumstances. 159 1 There - there are times and circumstances where an air 2 an air-purifying respirator is really the only 3 protection that one can have. And under those 4 circumstances it's the first line of defense. 5 (By Mr. Blanks) 6 Q. Those would be situations where you 7 couldn't through some other means of control eliminate 8 the - the exposure; isn't that right? 9 A. If you will change your question to reduce 10 rather than eliminate, I will go along with it. We - we 11 can't really eliminate exposures to anything. Somebody 12 once sat down and calculated that each breath we take 13 contains 200 molecules of air that passed through the 14 lungs of Cleopatra. When things get into the air, they 15 get dispersed and we breathe them. You can't eliminate 16 exposures to me as a scientist. You can reduce them. 17 Q. Certainly if the asbestos fiber had been 18 eliminated as an ingredient in insulation products such 19 as Kaylo, that at least would have eliminated the 20 potential for exposure to asbestos from the use of the 21 Owens-Corning insulation product, would it not? 22 MR. CELBA: I object. It's 23 argumentative; lack of 24 foundation; calls for speculation; 25 it's vague and ambiguous. 160 1 A. I don't even know that Kaylo could be made 2 without asbestos in it. So, your - your question is 3 difficult to answer if not impossible. I can't answer 4 it. 5 MR. ALMQUIST: We have been going 6 another hour here. Let's take a 7 break, if we could. I need to get up. 8 MR. BLANKS: Okay. 9 10 (A BRIEF RECESS WAS TAKEN.) 11 12 (By Mr. Blanks) 13 Q. We were -- We were discussing respirators 14 and circumstances where they might be your only line of 15 defense or your first line of defense. I was asking you 16 as a general rule, you would prefer to use other control 17 measures where they would work before having to trust a 18 respirator to protect a worker from a hazardous dust 19 exposure, wouldn't you? 20 MR. CELBA: Well, I'm going to 21 object. It's been asked and answered. 22 It's repetitious, and it's 23 argumentative. 24 A. Where they would work and where they could 25 be available one would have to add before I could agree 161 1 with your statement or your question. 2 (By Mr. Blanks) 3 Q. All right, sir. 4 A. But other than that, sure. We try to use 5 other techniques of control before we use personal 6 protective devices of any kind except for safety 7 glasses. 8 Q. Okay. At Dow you had the capability in the 9 early '50's when you went there to - to isolate work 10 areas that had asbestos insulation being handled, didn't 11 you? 12 A. If the areas were indoors, one could 13 isolate them. We didn't have available to us the 14 techniques we have today to isolate sections of 15 pipeline, for instance, all by themselves. So that if 16 one were out of doors, isolation would have been a very 17 difficult thing to do. 18 Q. Would it be difficult to isolate the work 19 area from other workmen by simply not allowing them in 20 the area when the asbestos dust was being generated? 21 That would be a form of isolation, wouldn't it? 22 A. Yes and no. The problem there is that you 23 might have to consider maintaining such isolation over 24 extended periods of time which would mean really a - a 25 plant shutdown perhaps to do something. And that might 162 1 be difficult. Each - each circumstance really has to be 2 looked at in its entirety. One can't take a little 3 piece of it and say "This is always the way to do 4 something" or "This is never the way to do something." 5 Q. Yes, sir. And we are just now discussing 6 the things that Dow would have been capable of doing by 7 way of hygienic controls in the early 1950's when you 8 got there. And I'm not trying to prescribe them as 9 something you should have done in every instance. I 10 mean do you understand? 11 A. Sure. Well, in general Dow had good 12 capabilities. 13 Q. You had the capability to use exhaust 14 ventilation to control asbestos dust in connection with 15 insulating activities? 16 A. Yes. 17 Q. Again, back in the early '50's? 18 A. Yes. 19 Q. I assume from what you have told me about 20 the equipment, the equipment that was in the industrial 21 hygiene group when you arrived that you had at Dow had 22 the capability to monitor or sample for asbestos dust in 23 air? 24 A. We did. 25 Q. And would it have been the case, 163 1 Dr. Peterson, that in the early 1950's that Dow had the 2 capability to do medical monitoring of its workers who 3 were potentially exposed to asbestos? 4 A. Certainly. 5 Q. Now, could you share with us then, 6 Dr. Peterson, any of these different techniques for 7 controlling exposures to asbestos dust in air that were, 8 in fact, used at Dow in the 1950's that - that you know 9 of. 10 A. As I have said, I'm not aware of any work 11 that we did with asbestos-containing materials. 12 Q. By that you mean you are not aware of any 13 work that the industrial hygiene group did with respect 14 to controlling exposures to asbestos-containing 15 materials? 16 A. And more than that, I'm not aware of any 17 work that Dow people did with asbestos-containing 18 materials. 19 Q. Would you know, sir, whether any 20 contractors on Dow premises did work with 21 asbestos-containing materials at Dow? 22 A. I have no direct knowledge of that one way 23 or the other. 24 Q. Is that something that would have not been 25 of any concern to the industrial hygiene group during 164 1 the '50's; that is to say potential exposures to 2 contractor employees on Dow premises? 3 A. You are getting into an area where I really 4 can't respond because I was not the person directing the 5 industrial hygiene group. I was just one of those who 6 did what he was told to do: "Go out and do some 7 sampling, evaluate exposures here" and so forth. 8 Q. Do you recall doing any sampling or 9 evaluations for exposures to contractor employees on Dow 10 premises? 11 A. No, I don't. 12 Q. Is it your recollection that in say the 13 1955 period that Dow regarded asbestos insulation as 14 being a potentially hazardous material? 15 A. I don't know that Dow had any asbestos 16 insulation around to regard as a hazardous material. 17 Q. All right, sir. Do you have an answer to 18 my question, though? 19 A. No, I don't. I - I -- As I said, I don't 20 know that Dow had any asbestos insulation around to 21 regard one way or the other. Is it hazardous? It 22 depends upon circumstances. Is there a likelihood of 23 injury is what we meant by hazard and what I mean by 24 hazard today. 25 And Dow may have had asbestos-containing 165 1 materials around. And where -- The only place - place I 2 know where asbestos, per se, was used was in the 3 chlor-alkali plant. And I know that only from reading 4 Mr. Hoyle's deposition. 5 Q. Was that a Midland plant? 6 A. Yes. 7 Q. Well, sir, were you aware in 1953 or '54 or 8 '55 that asbestos insulation was a potentially hazardous 9 material? 10 MR. CELBA: I'm going to object 11 to the form of the question as vague 12 and ambiguous, indefinite, overly 13 broad. 14 A. I didn't know -- 15 MR. CELBA: (Interrupting) And 16 argumentative. 17 A. Yes. I don't know there was such a thing 18 as asbestos-containing insulation at that time. 19 (By Mr. Blanks) 20 Q. When do you think you first learned that 21 there was such a thing as asbestos-containing 22 insulation, approximately? 23 A. I have no idea. I just don't know. 24 Eventually the knowledge came to me, but I don't know 25 where it came from or what the circumstances were. 166 1 Q. Do you think that would have been after you 2 left Dow and went back to school and heard about the 3 mesothelioma cases? 4 A. No. In fact, it may well have been later 5 than that. It may well have been when I was retained by 6 attorneys for O.I. I just don't know. 7 Q. All right, sir. Do - do you have any 8 recollection that would suggest that - that Mr. Hoyle in 9 the 1950's regarded asbestos insulation material as 10 being a potentially hazardous material? 11 MR ALMQUIST: I object to the 12 form of the question as calling 13 for speculation on the part of the 14 witness as to what some other person 15 regarded or knew. 16 MR. CELBA: I join in the 17 objection. It's argumentative. 18 A. I don't know what Mr. Hoyle knew. 19 (By Mr. Blanks) 20 Q. I understand that you might not know with 21 the kind of scientific certainty that you are used to 22 dealing with about what Mr. Hoyle knew or didn't know. 23 But I was asking you, sir, what your impression was 24 about Mr. Hoyle's awareness as to asbestos insulation 25 being a potentially hazardous material in the 167 1 mid-1950's. 2 MR. ALMQUIST: The same 3 objection. 4 (By Mr. Blanks) 5 Q. If you had one. 6 MR. CELBA: The same objection. 7 A. I don't. I have no idea. 8 (By Mr. Blanks) 9 Q. Mr. Hoyle never expressed to you any 10 anything about asbestos insulation being a potentially 11 hazardous material? 12 A. I don't --13 Q. (Interrupting) To your recollection. 14 A. I don't recall ever discussing insulation 15 materials with Mr. Hoyle underany circumstances. 16 Q. If you had been informed by Owens-Illinois 17 in say 1953 that - or by Owens-Corning Fiberglas in 1953 18 that asbestos should be regarded as a potentially 19 hazardous material, do you think it likely that you then 20 would have at least made inquiry about whether there was 21 any of that material in Dow plants? 22 MR. CELBA: I object. It's 23 repetitious, vague, ambiguous, overly 24 broad, indefinite. Calls for 25 speculation; lack of foundation and 168 1 improper hypothetical. 2 A. As I have indicated, soon after I joined 3 the industrial hygiene crew, I became aware that 4 asbestos could cause asbestosis. If Owens-Illinois or 5 O.C.F. or anybody else had told me this, I would have 6 been - I would have regarded it as superfluous 7 information. 8 (By Mr. Blanks) 9 Q. Did the fact that asbestos could cause 10 asbestosis mean to you that the insulation containing 11 asbestos should be handled as a potentially hazardous 12 material? 13 MR. CELBA: The same objection as 14 previously stated. 15 A. Yes, in that just about everything that one 16 looks at or monkeys around with can be so handled. 17 (By Mr. Blanks) 18 Q. I'm sorry. I don't follow that. You are 19 saying that - that everything you handle should be 20 treated as a potentially hazardous material; the table 21 cloth, the glass of water? I mean what - what are you 22 saying, Dr. Peterson? 23 A. I am saying that just about anything we 24 deal with has the capability of causing harm. How we 25 deal with it depends upon the perceived probability of 169 1 that harm occurring. And without analyzing 2 circumstances, I can't say whether a material is 3 potentially hazardous or not. Potential exists for 4 everything. So, saying potentially hazardous is 5 meaningless really. 6 Q. You think the potentials for hazard are 7 essentially identical between all things or what? 8 A. Oh, no, not by a long shot. 9 Q. Do you think that insulation containing 10 asbestos is less potentially hazardous than the 11 insulation that doesn't have asbestos in it or maybe has 12 fiberglass in it? 13 MR. CELBA: I object. It's 14 argumentative and lack of foundation. 15 A. If asbestos-containing insulation is 16 sitting here in a block on this table and is 17 undisturbed, the hazard associated with it is zero; and, 18 therefore, it need not be handled as a potentially 19 hazardous material. So, it all depends on what is being 20 done with the material and how it's being handled, what 21 the circumstances are. 22 (By Mr. Blanks) 23 Q. And in your experience the asbestos 24 insulation in order to be put to use in a chemical plant 25 has to be handled, doesn't it, sir? 170 1 MR. CELBA: I'm going to object 2 to lack of foundation. 3 A. I have never seen asbestos-containing 4 material being handled in a chemical plant; therefore, I 5 don't have any experience in that area. 6 (By Mr. Blanks) 7 Q. You have seen it being handled on 8 battleships, haven't you? 9 MR. CELBA: The same objection. 10 It's argumentative, too. 11 A. Yes, I have seen it being handled on a 12 battleship. 13 (By Mr. Blanks) 14 Q. You can perceive that it obviously had to 15 have been taken out of a container and been put on the 16 pipe in order to get there in the first place I suppose? 17 MR. CELBA: I'm going to object, 18 Counsel. His testimony was he 19 only - he did not see application or 20 installation of new insulation on that 21 battleship. 22 MR. BLANKS: Is this an objection 23 to form or what? 24 MR. CELBA: Well, I'm just 25 Misconstruing his testimony. You said 171 1 he saw them take it out of the box. 2 I'm just saying his testimony was that 3 he never saw it being applied. So, 4 how could he see it taken out of the 5 box? 6 Now, you are being 7 argumentative at this point in time 8 over a question we have had repetition 9 many times before. So, keep trying I 10 guess. 11 (By Mr. Blanks) 12 Q. Does that help you to answer, Dr. Peterson, 13 hearing the - the speaking objection from the 14 Owens-Corning Fiberglas lawyer that you worked for just 15 a few months ago? 16 MR. CELBA: I object to the 17 comments and move to strike. 18 A. No. 19 (By Mr. Blanks) 20 Q. How much money have you made from 21 Owens-Corning Fiberglas or their hired attorneys over 22 the years, Dr. Peterson? Do you have any idea? 23 MR. CELBA: I object to the form. 24 It's argumentative. 25 A. No. 172 1 (By Mr. Blanks) 2 Q. Do you keep records of these things? 3 A. I have records --4 Q. (Interrupting) Do they pay ... 5 A. --- that go back a couple of years. 6 Q. And you have been working for them for more 7 than a couple of years, haven't you? 8 A. I don't really know. Two or three years, 9 something on that order. 10 Q. Well, are you telling this Jury that - that 11 had Owens-Corning or Owens-Illinois told you back in 12 1953 that asbestos-containing Kaylo insulation, for 13 example, could cause asbestosis in animals and therefore 14 should be regarded as a potentially hazardous material 15 that - that that would have been of no value to you, 16 would not have added to your useful store of knowledge 17 as a - as a young industrial hygienist? 18 MR. CELBA: Counsel, this is 19 repetitious. You know you have asked 20 this question at least four times in 21 this deposition. I restate all my 22 objections to the previously 23 stated questions that were exactly 24 like this. 25 And I am sure that Dr. Peterson 173 1 would like to incorporate his answer 2 then. And at this point in time you 3 are just badgering the witness through 4 this repetition. 5 MR. BLANKS: Carry on 6 Owens-Corning Fiberglas, carry on. 7 Make your speaking objections. 8 A. As I indicated previously when you asked 9 the question, I would have regarded it as being 10 superfluous information. 11 (By Mr. Blanks) 12 Q. And I suppose based on what you learned 13 from Mr. Hoyle and others that Dow didn't need to be 14 told in 1953 or 1948 when - when Owens-Illinois first 15 learned it that - that Kaylo should be regarded as a 16 potentially hazardous material either, would that be 17 would that be your view, sir? 18 MR. CELBA: The same objection. 19 MR. ALMQUIST: I object to the 20 form of the question in that it is 21 different from asbestos. 22 MR. BLANKS: It's what? 23 MR. ALMQUIST: The form of the 24 question is improper. I think it 25 misstates his prior testimony and 174 1 misstates the facts on the record. 2 It's vague, ambiguous and 3 confusing. 4 A. I'm sure that if I had known that, No. 1, 5 Dow was using Kaylo; No. 2, that Kaylo contained 6 asbestos; No. 3, that in use, asbestos was released, I 7 would have regarded Kaylo as a potential source of 8 exposure to asbestos; that if the exposure were 9 prolonged and repeated often enough, might give rise to 10 asbestosis. I did not know most of those things. 11 (By Mr. Blanks) 12 Q. Is it your view, Dr. Peterson, that it's 13 better to discover from animal testing that some 14 material can cause serious disease than to wait and 15 discover it later in industrial workers? 16 MR. CELBA: I object. 17 Repetitious again. Lack of 18 foundation. Calls for 19 speculation. Vague and ambiguous. 20 A. I am a proponent of toxicology, which is 21 using in this particular kind of case animals as 22 surrogates for humans. I'm also aware that not 23 everything can be done with animals; and, therefore, we 24 have to have the science of epidemiology. 25 175 1 (By Mr. Blanks) 2 Q. It was possible, wasn't it, though, to 3 develop asbestosis in laboratory animals exposed to 4 insulation materials containing asbestos - wasn't it? 5 A. Yes. 6 Q. And speaking as an industrial hygienist 7 presumably responsible for the health of numerous 8 industrial workers working for Dow, for example, you 9 would much prefer to be forewarned about a potential 10 hazard than to have to discover it later in your own 11 work force, would you not, sir? 12 MR. CELBA: Again, it's 13 repetitious. We raise our previously 14 noted objections to this line of 15 questions about what this witness 16 would have preferred to hear about or 17 know about. We have raised those 18 objections, then we raise them 19 again -- 20 MR. BLANKS: (Interrupting) You 21 have made your objection. You can 22 stop your monologue, 23 Mr. Owens-Corning. 24 MR. CELBA: I think I have made 25 my record. 176 1 A. I prefer to have as much information as I 2 can get always - as I can get and understand and use 3 regardless. 4 (By Mr. Blanks) 5 Q. Do you prefer to pass that information 6 along to the workers that you are charged with 7 protecting as well? 8 MR. CELBA: I object. Vague and 9 ambiguous. 10 A. I certainly did when I had such a charge. 11 (By Mr. Blanks) 12 Q. Let me show you a letter from 1948 13 addressed to a Mr. U. E. Bowes at the Owens-Illinois 14 Glass Company that is marked as Plaintiffs' Exhibit 15 481116 OIIOCF. Have you ever seen a letter like this. 16 (Tendering) 17 A. (Reviewing) 18 MR. CELBA: I'm going to object. 19 Lack of foundation. 20 A. All I can say is I have probably seen it 21 before. 22 (By Mr. Blanks) 23 Q. Where do you think you saw it? Would that 24 have been at Dow? 25 A. Oh, no. No. 177 1 MR. CELBA: The same objection. 2 Lack of foundation. 3 A. I - I would have seen it as one of the 4 pieces of information given to me by the attorneys for 5 Owens-Illinois in the '80's sometime. 6 (By Mr. Blanks) 7 Q. So, you think that the lawyers from 8 Owens-Illinois would have showed you this letter to 9 Mr. Bowes apparently coming from Dr. Vorwald? 10 MR. CELBA: The same objection. 11 (By Mr. Blanks) 12 Q. Is that right? 13 A. I suspect that. I - I can't guarantee it. 14 It has been a long time since I have looked at that 15 material. 16 Q. Has - has your - your lawyer -- The lawyer 17 here that is objecting from Owens-Corning, the one 18 that's hired you before to testify for Owens-Corning, 19 has he ever shown you a copy of - of this November 20 letter, Dr. Peterson? 21 MR. CELBA: I'm going to object 22 to the form of the question. Counsel, 23 again, you are prolonging this 24 deposition. You are badgering the 25 witness. He's already said he's never 178 1 received any information from me; and, 2 yet, you ask the same question again. 3 What is the purpose? 4 A. No. 5 (By Mr. Blanks) 6 Q. Do you have at your home any papers that 7 the Owens-Corning Fiberglas lawyers or any of them have 8 given you, sir? 9 MR. CELBA: The same objection. 10 Repetitious. It's been asked and 11 answered. 12 A. No. 13 (By Mr. Blanks) 14 Q. Do you have at your home any documents that 15 you - that you understand or - or suspect to be 16 documents from or to Owens-Corning or Owens-Illinois 17 regarding asbestos or asbestos hazards. 18 MR. CELBA: The same objection. 19 Repetitious; asked and answered. 20 A. I may have some Owens-Illinois documents. 21 Let's -- I haven't looked at that stuff for a long, long 22 time; and I really don't know what I have. But I may 23 have some Owens-Illinois documents. I certainly don't 24 have any O.C.F. documents. 25 179 1 (By Mr. Blanks) 2 Q. You understand that O.C.F. actually 3 acquired the Kaylo line from Owens-Illinois, don't you, 4 sir? 5 A. I do. 6 Q. You understand that O.C.F. also acquired 7 various documents, correspondence and files about Kaylo 8 from, O.I., don't you? 9 MR. CELBA: I object. Counsel, 10 you know that's argumentative, vague 11 and ambiguous as to what documents; 12 and lack of foundation with respect to 13 this witness. 14 A. I don't know what O.C.F. received from O.I. 15 I have no way of knowing. 16 (By Mr. Blanks) 17 Q. Do you know if they received anything? 18 MR. CELBA: The same objection. 19 A. They received a process. 20 (By Mr. Blanks) 21 Q. Have you been told by their lawyers that 22 O.C.F. never got any documents from O.I. about Kaylo or 23 its health hazards? 24 MR. CELBA: Objection. It's 25 argumentative. 180 1 A. No. 2 (By Mr. Blanks) 3 Q. Could you tell me, Dr. Peterson, just what 4 industrial hygienic controls Dow was using in the 5 mid-1950's in connection with the handling of thermal 6 insulation materials inits plants. 7 A. No. 8 Q. Do you know if they were using any hygienic 9 controls for people handling thermal insulation in Dow 10 plants in the 1950's? 11 A. No. 12 Q. Did you learn in the 1960's of any hygienic 13 controls used in connection with handling, putting in, 14 taking out, cleaning up thermal insulation in Dow 15 plants? 16 A. No. 17 Q. Did you learn fromreadingMr. Hoyle's 18 deposition that there was some monitoring done for 19 asbestos dust in the air in connection with insulation 20 work done at Dow? 21 A. Yes. 22 Q. Had you ever - everheard of that before 23 before you read the deposition? 24 A. No. 25 Q. Did you see any written report of this 181 1 asbestos monitoring project that Mr. Hoyle had done at 2 Dow after - well, not after you left, but whenever it 3 was? 4 A. I - I may have seen such a report; but if 5 so, it was quite recently. 6 Q. Do you recall who Roy Degesaro is or was? 7 A. The way it's pronounced is Degesaro. Yes, 8 I know -- I know Roy, let's put it that way. 9 Q. He was there at Dow while you were still 10 there? 11 A. No, I believe Roy was hired after I left. 12 Q. I see. Mr. Hoyle taught you, didn't he, in 13 the 1950's when you were his apprentice that the values 14 for threshold limits or maximum allowable concentrations 15 were - were really just a guideline, didn't he? 16 A. We undoubtedly discussed that topic, and 17 this kind of a philosophy arose. I prefer the use of 18 the word target rather than guideline, but guideline is 19 all right. 20 Q. You understood that it wasn't a fine line 21 between safe and dangerous, didn't you? 22 A. Yes. 23 Q. That it had to be used with discretion and 24 judgment? 25 A. Yes. 182 1 Q. And that even at exposures below the 2 threshold limit value that you could anticipate that 3 some workers could potentially develop an occupational 4 disease? You had that understanding, too, didn't you, 5 sir? 6 MR. CELBA: I'm going to object. 7 Lack of foundation. It's vague and 8 ambiguous and indefinite about the 9 circumstances which you relate to this 10 witness. 11 MR. BLANKS: That's right. It 12 might have been on a Wednesday instead 13 of a Thursday. 14 A. The -- 15 MR. CELBA: (Interrupting) And 16 other things. 17 A. There are many materials that have 18 threshold limit values that do not cause occupational 19 disease in any reasonable concentration. And, 20 therefore, that kind of an admonition applies to some 21 materials but certainly not all on the list. 22 (By Mr. Blanks) 23 Q. With respect to the pneumoconiosis-causing 24 materials, asbestos, silica, you would agree, wouldn't 25 you, that exposures below the threshold limit value can 183 1 cause - cause disease such as asbestosis for asbestos 2 exposure? 3 MR. CELBA: I'm going to object 4 to the form. It's vague, ambiguous 5 and calls for speculation. Lack of 6 foundation. 7 MR. ALMQUIST: And also it's not 8 limited as to time. 9 A. The way you phrased the question, I have to 10 say no. 11 (By Mr. Blanks) 12 Q. How would you -- What would I have to ask 13 in order to get you to say yes? 14 MR. CELBA: I am going to object 15 to the form of the question. I have 16 never heard a question like that. 17 MR. BLANKS: Well, you have 18 now. 19 MR. CELBA: I know. 20 MR. BLANKS: Welcome to Beaumont. 21 MR. CELBA: It's a learning 22 experience. 23 MR. BLANKS: Welcome to Beaumont, 24 Mr. Celba. 25 184 1 (By Mr. Blanks) 2 Q. Dr. Peterson, did you understand, sir, that 3 the T.L.V. for asbestos did not - was not -- That didn't 4 guarantee that exposures below the T.L.V. would - would 5 not result in disease, did it? 6 A. No. 7 Q. You understood that some people could be 8 exposed below the T.L.V. and still develop asbestosis, 9 did you not? 10 MR. CELBA: I'm going to object 11 to the form of the question. It's 12 speculation. Lack of foundation. 13 Vague and ambiguous, indefinite. 14 A. The T.L.V. is not a guarantee. I 15 understand that. On the other hand, the -- I also am 16 aware today that the five million particle per cubic 17 foot T.L.V. was based on the wrong kind of sampling 18 method. And, therefore, concentrations below that level 19 might well have caused some degree of asbestosis in some 20 people under some circumstance. That's the best I can 21 say. 22 (By Mr. Blanks) 23 Q. But you understood in the 1950's when you 24 first learned about maximum allowable concentrations 25 that in some individuals - some individuals who might be 185 1 more susceptible than others, disease could occur at 2 exposures below the threshold limit value? Didn't you 3 appreciate that fact in the 1950's, sir? 4 MR. CELBA: The same objection, 5 also argumentative. 6 A. I disagree with your use of the phrase 7 "maximum allowable concentration" because in the early 8 '50's I believe that that phrase was changed to 9 threshold limit value, which is a much better 10 description of what is going on. With that alteration, 11 sure, I would agree. 12 (By Mr. Blanks) 13 Q. Do you understand or have any awareness of 14 what the guideline was called in Texas during the 1950's 15 for mineral dust exposure? 16 A. No, I have no idea. 17 Q. It would be reasonable to conclude I 18 suppose that Dow since it operated down in Texas would 19 at least have been - been aware of the health 20 regulations that would have governed its plant back at 21 that time, would it not? 22 A. It might be reasonable, but I don't know 23 that's the case. 24 Q. Did you encounter any situations where Dow 25 was knowingly violating the - the local health 186 1 department regulations that - you know, that were in the 2 industrial hygiene area? 3 A. In Texas or --4 Q. (Interrupting) Anywhere. 5 A. --- Midland or anywhere? No. 6 Q. Did you understand in the 1950's, 7 Dr. Peterson, that there were cases reported in the 8 literature of asbestosis resulting from long term 9 exposures below the five million particle per cubic foot 10 guideline? 11 MR. CELBA: I object to the form 12 as being argumentative. It assumes 13 facts not in evidence. 14 A. I -- I'm not sure really. I -- I know - 15 Well, I'm just not sure even today. At one time I had a 16 reasonable familiarity with this literature, but I -- I 17 don't anymore. So, I -- I just don't have an opinion in 18 that area. 19 (By Mr. Blanks) 20 Q. Based on your expertise as an industrial 21 hygienist, would - would you agree that - that since you 22 couldn't rely even in the 1950's on the threshold limit 23 values to protect all of the workers from developing a 24 disease, that it was necessary to use a medical 25 monitoring program to support your industrial hygiene 187 1 program and watch for signs of disease? 2 MR. CELBA: I'm going to object 3 to the form as being argumentative and 4 misconstruing the testimony of this 5 witness. 6 A. You are getting into an area of philosophy 7 again. And I can't agree that a medical monitoring 8 program is always necessary or desirable if that's what 9 you are implying. 10 (By Mr. Blanks) 11 Q. Under what circumstances is a medical 12 monitoring program desirable in - in conjunction with an 13 industrial hygiene program? 14 A. A medical monitoring program is desirable 15 where it is at least practical or possible that the 16 physicians will pick up signs of disease of one kind or 17 another before industrial hygienists are aware of 18 overexposures or where an epidemiological study is being 19 undertaken. 20 Q. How would you need a medical monitoring 21 program in conjunction with an epidemiology study? I 22 don't understand that. 23 A. Well, an epidemiological 24 MR. CELBA: (Interrupting) I'm 25 going to object to the question about 188 1 whether or not Counsel understands 2 commenting about his testimony. 3 Therefore, I move to strike that. 4 A. Epidemiology really is based upon medical 5 monitoring if you will. So, I don't understand why you 6 don't understand. 7 (By Mr. Blanks) 8 Q. Okay. Well, I think you were explaining to 9 me when a medical monitoring program would be 10 appropriate as part of an industrial hygiene program. 11 You told me that you didn't think it was always a good 12 idea or always necessary, and you were explaining to us 13 when - when it would be. 14 A. That --15 Q. (Interrupting) Does that -- 16 MR. CELBA: (Interrupting) I'm 17 going to object there. There was a 18 response to no question asked other 19 than the comment. I move to strike 20 the comment. 21 (By Mr. Blanks) 22 Q. All right. Dr. Peterson, are you telling 23 me that an epidemiology program is a necessary part or a 24 desirable part of - of a good industrial hygiene 25 program? 189 1 A. No. But where epidemiology is being 2 attempted, if you will, it is best done in conjunction 3 with an industrial hygiene program monitoring exposures 4 to whatever is being looked at. 5 Q. And that would entail the - the doctors 6 being involved? Okay. 7 A. Yes, sir. 8 Q. All right. But you said then that you 9 thought a medical monitoring program would be desirable 10 in the case where the doctors would pick up the disease 11 before the industrial hygienist became aware of the 12 exposures that were causing the disease I think? 13 MR. CELBA: I'm going to object 14 to that -- 15 MR. BLANKS: (Interrupting) Go 16 back and re-read his answer so we can 17 quell these Owens-Corning objections 18 and get on with the testimony, please, 19 Mr. Reporter. 20 MR. REPORTER: "Under what 21 circumstances is a medical monitoring 22 program desirable in - in conjunction 23 with an industrial hygiene program? 24 'ANSWER: A medical monitoring 25 program is desirable where it is at 190 1 least practical or possible that the 2 physicians will pick up signs of 3 disease of one kind or another before 4 industrial hygienists are aware of 5 overexposures." 6 (By Mr. Blanks) 7 Q. Okay. Having heard what you answered 8 earlier, I'm wondering then, Dr. Peterson, how it would 9 be that an industrial hygienist would make himself aware 10 of overexposures in a plant like a Dow plant to say a 11 material such as insulation, thermal insulation. 12 A. By monitoring exposures. 13 Q. Can you think of any other ways that an 14 industrial hygienist could confidently satisfy himself 15 that he had or didn't have overexposures in the handling 16 of thermal insulation in an industrial setting? 17 MR. CELBA: I'm going to object. 18 Lack of foundation and vague and 19 ambiguous as to plants and 20 circumstances. 21 A. Because of a lamentable shortage of 22 industrial hygienists we sometimes must rely upon what 23 is published in the literature. And we have already 24 talked about what was available in the literature with 25 regard to the handling of asbestos-containing insulation 191 1 materials. And that kind of information is one way that 2 industrial hygienists could become aware of either a 3 hazard or a lack of hazard associated with a particular 4 kind of job without doing any monitoring. 5 (By Mr. Blanks) 6 Q. So, you are suggesting that - that where a 7 company didn't have enough industrial hygienists to 8 monitor for overexposures or even to quantify the 9 exposures at all, that they would have to just fall back 10 on what had been published about similar work and then 11 form a conclusion about what was happening in their 12 plant based on what somebody else had published about 13 another - another workplace? 14 MR. CELBA: I'm going to object. 15 Lack of foundation, and it's 16 misconstruing his testimony; 17 argumentative and repetitious. 18 A. I prefaced my answer by saying that there 19 is a lamentable lack of industrial hygienists. Because 20 of that we have to prioritize what we are doing. And in 21 general all industrial hygienists who are out there at 22 work try to handle the things that they regard as being 23 the most serious problems first. And where the 24 literature indicates that, for instance, handling 25 asbestos-containing insulation is not a hazard, that 192 1 doesn't appear high on a priority list. It might be on 2 a list somewhere. It might be one of the things that 3 one would like to do, but the telephone rings and 4 something else interferes. 5 That's - that's the way this kind of thing 6 works. It may be imperfect; and, in fact, it is 7 imperfect, but that's the way it goes. 8 (By Mr. Blanks) 9 Q. But relying on an article such as your 10 favorite, the Fleischer-Drinker, et cetera, article -- 11 A. (Interrupting) It's far from my favorite. 12 I handed you a bunch of articles that are much more my 13 favorite. 14 Q. The ones you wrote? 15 A. Of course. 16 Q. All right, sir. 17 MR. CELBA: I move to strike 18 Counsel's comment. 19 (By Mr. Blanks) 20 Q. But the - an article such as - as the ones 21 you referred to earlier really don't give you knowledge 22 about the actual exposures or overexposures that people 23 working in your plant are facing from the handling of 24 thermal insulation, do they? 25 A. No. 193 1 MR. CELBA: Object; vague, 2 ambiguous, indefinite, argumentative. 3 A. My answer stands, no. 4 (By Mr. Blanks) 5 Q. And, therefore, if the industrial hygienist 6 because of other priorities, because of lack of 7 resources, because he's just spread too thin, for 8 whatever reason can't monitor exposures, then obviously 9 it would follow that he is going to be unaware of 10 overexposures if they are occurring, would you agree? 11 MR. CELBA: I object; lack of 12 foundation, argumentative, vague and 13 ambiguous. It also calls for 14 speculation. 15 A. If overexposures are occurring and they 16 aren't monitored, obviously one cannot become aware of 17 those, yes. 18 (By Mr. Blanks) 19 Q. And then the only remaining means to learn 20 of the fact of overexposures if they be there would be 21 through a medical monitoring program, would it not, 22 Dr. Peterson? 23 MR. CELBA: The same objection as 24 previously stated. 25 A. Yes. 194 1 (By Mr. Blanks) 2 Q. And by the same token, sir, would not a 3 medical monitoring program be another means of 4 validating or testing the effectiveness of the controls, 5 if you were using any, that you had in place to - to 6 limit exposures to a hazardous material? 7 MR. CELBA: The same objection. 8 A. That is the ordinary reason given for a 9 medical monitoring program. In my experience mostly 10 since Dow, I don't find that to be a very efficacious 11 use of medical facilities. 12 (By Mr. Blanks) 13 Q. You just don't think it's an efficient use? 14 A. Yes; that's correct. It's too crude 15 unfortunately. 16 Q. You mean because the - the signs of 17 occupational disease many times show up much too late 18 for the industrial hygienist to do anything about 19 about it? 20 A. Well, if the physicians find a sign, it 21 means that something has occurred that shouldn't have. 22 But that isn't too late for industrial hygienists to 23 find out about it. The two are -- They are two 24 different things entirely. 25 Q. You are saying that if - if the 195 1 physician -- Excuse me. You are saying that if the 2 physician detects signs of occupational disease in the 3 work force in your plant, for example, that's 4 information that would be immediately useful to the 5 industrial hygienist? Yes? 6 MR. CELBA: I object; calls for 7 speculation; lack of foundation; 8 vague, ambiguous and indefinite. 9 A. In general, yes. 10 (By Mr. Blanks) 11 Q. Even though with respect to the - the 12 worker that has a chronic disease such as asbestosis, 13 there is nothing at that point that the industrial 14 hygienist can do to - to improve the situation of that 15 worker except stop his exposures, would that be true? 16 MR. CELBA: The same objection, 17 argumentative. 18 A. Yes. 19 (By Mr. Blanks) 20 Q. And just so I'm not unsure about this, 21 was - was it the case that at Dow during - during any 22 years there that - that there was a medical monitoring 23 program for workers in the Dow plants? 24 A. My recollection is that anyone who felt a 25 need for a medical examination could have that 196 1 examination. 2 Q. Was there any class or - or subset of 3 workers that the industrial hygiene group recommended 4 have medical monitoring or be part of a medical 5 monitoring program? 6 A. There may well have been, and I don't 7 recall. 8 Q. Do you recall that the medical department 9 provided any kind of biological monitoring for any group 10 of Dow employees while you were there? 11 A. Yes; in fact, that was done. 12 Q. What - what - what sort of monitoring was 13 done? 14 A. Monitoring for cholinesterase levels 15 c-h-o-l-i-n-e-s-t-e-r-a-s-e - cholinesterase levels in 16 people handling cholinesterase inhibiting insecticides 17 is one. There may have been others, but that is one I 18 was associated with. 19 Q. Is that one that the industrial hygiene 20 group recommended, or do you know how that came to be 21 done? 22 A. I just don't recall. 23 Q. Tell me about the slide talk that you used 24 throughout the plant. 25 A. A slide talk consisted of three parts as I 197 1 recall. The first part of it was slides that depicted 2 work done by the toxicology group in determining this 3 property of toxicity. 4 Secondly, we talked a bit without slides or 5 we might have had one or two about the work of the 6 industrial hygiene group in evaluating hazards. 7 And, thirdly, we talked about the potential 8 hazards of materials that were being handled by the 9 group that we were speaking to. 10 Finally, the fourth phase of the 11 three-phase system was that we asked for questions and 12 answered them. 13 Q. Was this a - an approach or a program that 14 had been underway when you arrived? 15 A. Yes. 16 Q. And was it still going on in - in the '60's 17 when you left the company? 18 A. Yes. 19 Q. What - what was the point of this little 20 slide talk program? 21 A. It began as an introduction to an 22 industrial hygiene survey of a plant or a process. And 23 that was what it was developed to do. It became a 24 popular presentation and was requested by many groups. 25 And, of course, when it was requested either by the 198 1 group or by the safety representative of that group, we 2 we were happy to present the talk. 3 Q. So, if I follow you, if you were going to 4 go do a survey of a particular unit in the plant, then 5 this talk would - would be presented to the people 6 working in that unit before the survey began? 7 A. That's correct. 8 Q. And covered -- You would speak to all of 9 the employees in the unit? 10 A. Yes. And for that reason, the talk was 11 usually given at least twice and maybe three times to 12 cover all employees. 13 Q. And then I think you said it expanded to 14 where it became a part of the ongoing safety program at 15 the plant? 16 A. Well, I -- I wouldn't put it that way. The 17 safety department was aware that we had the talk, and 18 they were aware that it was popular. They encouraged 19 safety meetings, and this became a popular presentation 20 at safety meetings. 21 Q. You found that the - the ordinary workmen 22 in the plants were - were interested about the potential 23 hazards that they faced in the workplace? 24 A. I really can't put myself in the place of 25 an ordinary workman. And all I know is that they showed 199 1 up at the safety meetings and asked questions and 2 appeared interested, yes. 3 Q. Well, that's what -- That's what I was 4 inquiring about. I mean they struck you as being 5 interested in - in that information, the information of 6 that sort? 7 A. Yes. As I said, it was a popular program. 8 Q. You - you have told us earlier that you 9 placed little reliance on case reports in the literature 10 in developing your opinions about what is hazardous and 11 what is not. Could you explain - explain to us why that 12 is, Dr. Peterson. 13 A. The first awareness of a problem, of a 14 hazard may come about because of case reports in the 15 literature where physicians come across something that 16 is odd; they write up whatever they have found and 17 attribute a potential cause for this usually in their 18 write-up. 19 Sometimes they incorporate past write-ups 20 by other physicians. Probably as often as they are 21 right about the cause, they are wrong about the cause. 22 And, therefore, we have to have something that is more 23 scientific and more thorough to follow case reports. 24 And that's why just case reports, per se, don't mean a 25 great deal to me; and, in fact, I very seldom read case 200 1 reports. 2 Q. What do you - or what did you rely on to 3 develop your - your knowledge about occupational health 4 hazards? 5 A. I put far more reliance on epidemiological 6 surveys of people where the industrial hygiene was also 7 used in conjunction with the survey to show what 8 exposures actually were rather than what exposures were 9 inferred. And as I indicated previously, I'm skeptical 10 enough so that I like to see epidemiological surveys 11 replicated before they really make a lot of sense to me. 12 Q. How - how long does it take to do an 13 epidemiology study of a sort that would be valid to you? 14 A. It depends on the variety that one is 15 doing. Whether one is doing it retrospectively or 16 prospectively; that is, looking back into the past or 17 trying to follow a group into the future, it can be a 18 year or two for a retrospective study; it can be decades 19 for a prospective study. 20 Q. I mean it could take more than a year or 21 two just to gather the data for a look-back study, 22 couldn't it? 23 A. Sometimes. 24 Q. And when was it that epidemiology studies 25 of occupational diseases came to be available or 201 1 commonplace? 2 A. I really can't answer that question. I 3 know that, for instance, the Dreessen study is an 4 epidemiological survey with good industrial hygiene. 5 So, this technique was available in 1938 anyway. 6 Q. Can you think of any - any epidemiology 7 studies after Dreessen that would be relevant to 8 asbestos disease hazards? 9 A. Not to a great extent. The 10 Fleischer-Drinker paper is an epidemiological survey as 11 well. 12 Q. You - you would characterize 13 Fleischer-Drinker's paper as an epidemiology survey? 14 A. Well, at least partially because they 15 looked at the medical histories of the people. 16 Q. Now, why do you think it's important to 17 have some industrial hygiene data in connection with the 18 epidemiology study? 19 A. Because unless we have that, we don't know 20 much about exposures. And unless we know something 21 about exposures, we can't know what is necessary for 22 control. 23 Q. Do you think, Dr. Peterson, that if you did 24 an epidemiology study let's say of all the workers in 25 in certain refineries, a mortality study let's say, 202 1 without industrial hygiene data to tell you which groups 2 of those people had exposures to what materials, could 3 you draw any - any valid conclusions about let's say 4 asbestos as being a cause of disease in that group of 5 workers? 6 MR. CELBA: I'm going to object 7 as vague and ambiguous, indefinite 8 and calls for speculation; lack of 9 foundation. 10 A. I know that epidemiologists sometimes try 11 to do this. I find that this kind of work is usually 12 unconvincing. 13 (By Mr. Blanks) 14 Q. I mean if you wanted to look at the 15 incidence of let's say asbestos-related cancer among 16 people working in a refinery, wouldn't you naturally 17 want to look at the people that actually had asbestos 18 exposures? 19 A. Of course. 20 Q. Do you know about any of Dow's involvements 21 in the American Petroleum Institute, Dr. Peterson? 22 MR. ALMQUIST: Objection to the 23 form; it assumes that there was an 24 involvement. 25 MR. BLANKS: I think you need to 203 1 make yourself aware of that, 2 Mr. Almquist. 3 A. No. 4 (By Mr. Blanks) 5 Q. Did you ever do any work with the American 6 Petroleum Institute? 7 A. No. 8 Q. Ever attend any of their meetings? 9 A. No. 10 Q. Ever get any of their publications? 11 A. Oh, I may have. I -- I don't know. I 12 certainly made no attempt to get their publication. 13 Q. Do you remember their Toxicological Reviews 14 from the late '40's and the early '50's that they were 15 publishing? 16 A. I have no current memory of such things, 17 no. 18 Q. Does there come a point in - in your mind 19 when you had enough case reports of a particular kind of 20 a disease to give them credence? 21 A. No, not really. I think that this is an 22 area where science is necessary, not simply medicine. 23 Q. When you say "science," you mean statistics 24 in the form of epidemiology studies, number crunching or 25 what? 204 1 A. Science is an approach. It is a technique. 2 Medicine is not science. Medicine is a practical 3 discipline, if you will. 4 Q. What - what does an epidemiology study 5 amount to except the gathering of a group of individual 6 case reports? 7 A. Oh, there usually are never case reports in 8 an epidemiology study. 9 Q. What do you consider, the report of - of 10 one individual's death from a - with a particular 11 diagnosis? 12 A. Well, unless it's in the literature as an 13 individual sort of thing, it isn't a case report. So, 14 just by definition, you are not talking about a case 15 report in epidemiological studies. 16 Q. Okay. We are using terms of art. But, in 17 fact, an epidemiology study does look at reports of 18 individual deaths or - or diseases, does it not? 19 A. Yes. 20 Q. It uses -- That's the underlying data that 21 the epidemiologist works with, true? 22 A. That's one portion of the underlying data, 23 yes. 24 Q. What else does the epidemiologist use? 25 A. Oh, gee, they use all sorts of demographic 205 1 information such as age, sex, maybe height and weight 2 along with information that they hope will be related to 3 exposures in some way or other, such as duration of 4 employment, time since first employment and so forth. 5 So, they look at a lot of things that one doesn't see in 6 case reports, for instance. 7 Q. Yes, sir. And the purpose is to bring 8 together a large number of reports of disease or death 9 and then try to draw some conclusions based on 10 statistical probability and such; right? 11 A. Well, you - you are asking me to be an 12 epidemiologist; and I'm not. I would much rather you 13 ask these questions of an epidemiologist because I could 14 get way off in left field, and I would rather not. 15 Q. But - but as far as you were concerned, no 16 number of case reports of let's say lung cancer in 17 connection with asbestosis or asbestos exposures would 18 have been sufficient to persuade you that asbestos could 19 be a cause of lung cancer, is that so? 20 A. Yes, that's so. 21 Q. So, no matter how many deaths have been 22 reported in respected medical journals, no matter how 23 many bodies have been counted up by the authors who were 24 surveying the literature, you, Dr. Peterson, would 25 remain unconcerned that asbestos just might be a cause 206 1 of lung cancer? 2 MR. CELBA: I object to the 3 question as being argumentative. 4 A. I didn't say that. 5 MR. PAPPAS: And it assumes facts 6 not in evidence. 7 (By Mr.Blanks) 8 Q. You would be waiting, in fact, for an 9 epidemiology study to tell you that, yes, there appeared 10 to be a causal relationship; is that true? 11 MR. PAPPAS: The same objection. 12 MR. ALMQUIST: The same 13 objection. 14 MR. CELBA: I join. 15 A. That's what I have said. 16 (By Mr. Blanks) 17 Q. Well, I can I think understand this as a 18 a philosophical point of view. But how do you apply 19 that philosophy to your practice of industrial hygiene? 20 Do you wait then until you have absolute certainty about 21 a causal connection between a contaminant and death or 22 disease before you start to - to put in controls, before 23 you start to warn the workers that they might be at risk 24 from getting cancer? 25 MR. CELBA: The same objection. 207 1 I move to strike all the comments. 2 MR. PAPPAS: The same objection. 3 A. There is no such thing as absolute 4 certainty in either medicine or the science of 5 industrial hygiene. A long time ago a physician in 6 Germany named Koch, K-o-c-h, formulated some postulates 7 about how one shows that a particular disease is 8 actually caused by a particular organism. And until all 9 of Koch's postulates are satisfied, one is simply not 10 sure. 11 There - there are many instances where 12 people have been wrong in their case reports about the 13 cause of disease. And if we had relied upon those and 14 only those, we would have spent lots of time, effort and 15 energy pursuing a red herring down a trail somewhere. 16 This isn't the way to do it. 17 (By Mr. Blanks) 18 Q. Would that have been the case with the case 19 reports of lung cancer deaths in connection with 20 asbestosis, Dr. Peterson? 21 MR. ALMQUIST: I object. It's 22 calling for speculation. 23 A. And I --- 24 (By Mr. Blanks) 25 Q. (Interrupting) Would - would Dow have been 208 1 pursuing a red herring if it had responded to case 2 reports of lung cancer in connection with asbestosis and 3 implemented stricter controls in its plants? 4 MR. ALMQUIST: I object to it as 5 being argumentative and calls for 6 speculation on the part of the 7 witness. 8 A. You - you are asking me to use hindsight 9 and say in this particular circumstance things could 10 have been done differently and better. One can always 11 use hindsight for that purpose. 12 (By Mr. Blanks) 13 Q. Do you think things could have been done 14 differently and better, Dr. Peterson? 15 A. With hindsight certainly. 16 Q. Do you think that the methods existed and 17 were known to Dow in the mid-1950's to control for 18 exposures to asbestos from insulation dust? 19 A. Sure, but I don't see why they would have 20 been used. 21 Q. Do you think, sir, that they - they might 22 have been used in the 1960's when Mr. Hoyle measured 23 asbestos dust concentrations above the threshold limit 24 value? 25 A. I -- I don't know that he did. I know 209 1 that -- I would rather -- My memory is not perfect. He 2 may well have had some samples that were above the 3 numerical value of the T.L.V. I don't think he showed 4 that the average exposures were above the T.L.V. 5 Q. Is that all that - that you as an 6 industrial hygienist would be concerned with then would 7 be average exposures, Dr. Peterson? 8 A. No, of course not. I'm concerned with all 9 sorts of things. 10 Q. Would you be satisfied to know that on 11 average you were only exposing workers to asbestos 12 concentrations just - just slightly below the asbestos 13 guideline? 14 MR. ALMQUIST: I object to that 15 as mischaracterizing the findings. 16 A. One tenet of industrial hygiene is to 17 reduce exposures where the reduction of exposures is 18 practical. And, therefore, no, I'm not satisfied under 19 such circumstances. On the other hand, the best 20 information we have on the effects of exposures is 21 represented by the T.L.V. And if we are below the 22 T.L.V., the chances are very good that no one is being 23 injured; and that we can apply whatever resources we 24 have to other things, to other problems where exposures 25 are above the T.L.V. We don't have infinite resources. 210 1 (By Mr. Blanks) 2 Q. Didn't you tell me earlier, though, that 3 even at exposures below the T.L.V. you could say with 4 almost the same degree of certainty that at least some 5 people would get disease? 6 A. No, sir, I didn't say that. I said that 7 the T.L.V. - staying below the T.L.V. did not guarantee 8 that one would not get disease. But there is no almost 9 certainty that someone is going to get disease. 10 Q. How aboutjust under the T.L.V.; how about 11 one tenth - one point under the T.L.V.? 12 A. The T.L.V. is not a fine line between safe 13 and dangerous whether you are going below it or above 14 it. 15 Q. If we look back at average exposures again, 16 if you know that the average exposure to people doing 17 asbestos insulation work is four point nine million 18 particles per cubic foot, does that satisfy you as an 19 industrial hygienist that the controls are adequate to 20 protect all the men doing that work? 21 A. No, that tells me I need to do more air 22 sampling to determine precisely what is going on and 23 which people are being overexposed and which people are 24 not, what jobs are causing overexposures and what 25 aren't. There are all sorts of things that industrial 211 1 hygienists do under these circumstances. 2 Q. You -- 3 THE WITNESS: (Interrupting) And I 4 would like to take a break. 5 MR. BLANKS: Yes, sir. 6 7 (A BRIEF RECESS WAS TAKEN.) 8 9 MR. BLANKS: Mr. Almquist, it is 10 apparent to me now at a quarter to 11 4:00 that I have got at least another 12 day and a half of inquiry to make of 13 Dr. Peterson; and I suspect that some 14 others here may want to, perhaps you 15 yourself, perhaps even Owens-Corning 16 Fiberglas. 17 I'm suggesting that we adjourn at 18 this time and resume again when 19 Dr. Peterson's schedule permits. 20 MR. ALMQUIST: We are -- It's now 21 a quarter until 4:00 as you have 22 indicated. We are prepared to go to 23 5:00 today. And Dr. Peterson's 24 schedule will allow him to come back 25 and - and testify day-to-day beginning 212 1 at 9:30 tomorrow morning to complete 2 the deposition. 3 And, so, we have that - you 4 know, we are here and prepared to 5 continue the deposition until its 6 conclusion. 7 MR. BLANKS: I appreciate that. 8 But we are not inclined to resume 9 tomorrow. Some near time in the 10 future when it's mutually convenient I 11 think would be preferable. 12 Unfortunately we didn't 13 anticipate that we would need more 14 than a day or even a full day with 15 Dr. Peterson. But the breadth of his 16 experience now indicates that more 17 time is required. 18 So, I decline to return in the 19 morning. And my brief survey of other 20 attorneys here suggests that they are 21 similarly disinclined to resume 22 tomorrow, particularly in light of 23 the fact that we have been deposing 24 all week out of town, or at least 25 since Tuesday. 213 1 MR. ALMQUIST: Well, I will 2 object to the last comment as being 3 hearsay, Mr. Blanks. 4 MR. PAPPAS: It's not hearsay 5 because it's true. 6 MR. BLANKS: That's it. 7 MR. PAPPAS: Let me also state 8 for the record that Lone Star 9 Industries reserves the objection to 10 the use of this witness' deposition 11 until such time as it's been 12 completed; and would object to the use 13 of the deposition at trial if it's not 14 completed. 15 16 (THE DEPOSITION WAS RECESSED.) 17 18 REPORTER'S NOTE: (UPON COMPLETION OF THE 19 DEPOSITION, PLAINTIFFS' EXHIBIT 280207 20 PetJacE WAS MARKED FOR IDENTIFICATION. 21 SAME WILL BE FOUND AT THE CONCLUSION OF 22 THIS DEPOSITION.) 23 24 25 214 1 THE STATE OF: 2 COUNTY OF: 3 4 I, JACK E. PETERSON, Ph.D., hereby certify 5 that I have read the foregoing transcript of my 6 testimony given in the foregoing numbered and styled 7 case, and that same is true and correct to the best of 8 my knowledge and belief. 9 I further certify that any and all 10 corrections have been made on a separate page and 11 initialed by me. 12 13 Thisday of, 1993 14 15 16 JACK E. PETERSON, Ph.D. 17 18 SWORN TO AND SUBSCRIBED BEFORE ME this 19 day of, 1993. 20 21 NOTARY PUBLIC 22 23 24 25 215 1 STATE OF: 2 COUNTY OF: 3 4 I, RICK SMITH, a Certified Shorthand 5 Reporter for the State of Texas, hereby certify pursuant 6 to the Texas Rules of Civil Procedure and/or agreement 7 of the parties present to the following: 8 That this deposition transcript is a true 9 record of the testimony given by JACK E. PETERSON, 10 Ph.D., the Witness named herein, on March 26, 1993, 11 after said witness was duly sworn by me. 12 SWORN TO AND SUBCRIBED by me in Beaumont, 13 Texas, on this theday of 14 , 1993. 15 16 17 18 RICK SMITH, CSR 19 Certificate No. 2644 20 Expiration Date of Current 21 Certification: 12/31/93 22 Charlotte Smith Reporting, Inc. 23 235 Orleans, Kyle Building 24 Beaumont, Texas 77701 25 (409) 839-4407 1 1 CONSOLIDATED CAUSE NO. A-135,876 2 KEITH F. GIBLIN, ET AL * IN THE DISTRICT COURT OF VS. * JEFFERSON COUNTY, TEXAS 3 A.C.& S., INC., ET AL * 58TH JUDICIAL DISTRICT CAUSE NO. A-140,498 4 JOYCE A. BORNE, ET AL * IN THE DISTRICT COURT OF VS. * JEFFERSON COUNTY, TEXAS 5 ALLIED SIGNAL, INC., ET AL * 58TH JUDICIAL DISTRICT 6 CAUSE NO. E-141,216 JOSEPH E. BARNARD, ET UX * IN THE DISTRICT COURT OF 7 VS. * JEFFERSON COUNTY, TEXAS ALLIED-SIGNAL, INC., ET AL * 58TH JUDICIAL DISTRICT 8 CAUSE NO. B-141,242 ROOSEVELT SCOTT * IN THE DISTRICT COURT OF 9 VS. *JEFFERSON COUNTY, TEXAS AMERICAN OPTICAL CORPORATION, * 10 ET AL * 60TH JUDICIAL DISTRICT CONSOLIDATED 11 CAUSE NO. A-134,614 FRENCH HICKS, ET AL * IN THE DISTRICT COURT OF 12 VS. *JEFFERSON COUNTY, TEXAS BETHLEHEM STEEL CORP., ET AL * 58TH JUDICIAL DISTRICT 13 CAUSE NO. B-126,986 RUSSELL ALLEN, ET AL * IN THE DISTRICT COURT OF 14 VS. *JEFFERSON COUNTY, TEXAS AMERICAN PETROFINA, INC., ET AL * 60TH JUDICIAL DISTRICT 15 CONSOLIDATED CAUSE NO. A-144,426 16 GLADYS FORRESTIER, ET AL * IN THE DISTRICT COURT OF VS. * JEFFERSON COUNTY, TEXAS 17 AC&S, INC., ET AL * 58TH JUDICIAL DISTRICT 18 19 VIDEOTAPED DEPOSITION OF JACK E. PETERSON, P.E., Ph.D. 20 VOLUME II 21 Taken on the 27th day of September, 1996, beginning at 22 9:32 a.m. at the US Grant Hotel; San Diego, California, 23 before Laura Dee Bates, a Certified Shorthand Reporter and 24 Notary Public in and for the State of Texas, Pursuant to the 25 attached Notice. 2 1 IN ATTENDANCE 2 FOR THE PLAINTIFFS: Hon. Joseph C. Blanks 3 Attorney at Law 2190 Harrison Avenue 4 Beaumont, Texas 77701 5 FOR THE DEFENDANT, RAPID-AMERICAN CORPORATION (Forrestier #A-144,426) and OWENS CORNING (Giblin #A-136,143 and Hicks 6 #A-134,614): Hon. Thomas W. Taylor 7 Andrews & Kurth 4200 Texas Commerce Tower 8 Houston, Texas 77002 9 FOR THE DEFENDANTS, DOW CHEMICAL COMPANY; BF GOODRICH; AMERIPOL-SYNPOL CORPORATION, INC.; SYNPOL, INC.; UNIROYAL; 10 B.F. GOODRICH TIRE COMPANY: Hon. Arthur R. Almquist 11 Mehaffy & Weber 500 Dallas Street, Suite 1200 12 Houston, Texas 77002 13 FOR THE DEFENDANT, ARMCO, INC.: Hon. Erwin R. Harding, Jr. 14 Matthiesen & Chase 11 Greenway Plaza, Suite 3003 15 Houston, Texas 77046 16 FOR THE DEFENDANT, THE DOW CHEMICAL COMPANY: Hon. Scott R. Pennock 17 Attorney at Law 2030 Dow Center 18 Midland, Michigan 48674 19 FOR THE DEFENDANTS, ATLANTIC RICHFIELD COMPANY, ARCO CHEMICAL COMPANY, TEMPLE-INLAND, INC., TEMPLE-INLAND FOREST 20 PRODUCTS CORPORATION; OXY USA, INC.; QUANTUM CHEMICAL CORPORATION (Forrestier, Consolidated #A-144,426): 21 Hon. D. Allan Jones Orgain, Bell & Tucker, L.L.P. 22 470 Orleans Beaumont, Texas 77701 23 24 25 3 1 FOR THE DEFENDANT, TRAVELERS (Forrestier, #A-144,426; Hicks, #A-134,614): 2 Hon. Martha Crandall Coleman Strasburger & Price, L.L.P. 3 901 Main Street, Suite 4300 Dallas, Texas 75202 4 FOR THE DEFENDANT, AMERICAN OPTICAL: 5 Hon. Gerald R. Flatten Rienstra, Dowell & Flatten 6 470 Orleans, Suite 1010 Beaumont, Texas 77701 7 FOR THE DEFENDANTS, WGM SAFETY CORPORATION: 8 Hon. Ryan A. Beason Funderburk & Funderburk 9 2777 Allen Parkway Houston, Texas 77019 10 FOR THE DEFENDANT, FULLER-AUSTIN INSULATION COMPANY: 11 Hon. Joe Worthington Cowles & Thompson 12 901 Main Street, Suite 4000 Dallas, Texas 75202 13 FOR THE DEFENDANT, 3M: 14 Hon. Douglas M. Stevens Palmieri, Tyler, Wiener, Wilhelm & Waldron 15 2603 Main Street Irvine, California 92714 16 FOR THE DEFENDANT, PITTSBURGH CORNING CORPORATION: 17 Hon. Andy J. Goetz Prindle, Decker & Amaro 18 310 Golden Shore, 4th Floor Long Beach, California 90802-4246 19 VIDEOTAPED BY: 20 Hon. Joseph Blanks 21 22 23 24 25 4 1 INDEX 2 EXAMINATION BY MR. BLANKS................................5 10 3 OBJECTIONS 4 BY MR. BEASON..................................................55 17 5 BY MR. BEASON..................................................55 17 6 BY MR. BLANKS.............................................. 159 20 7 BY MR. BLANKS............................................... 171 20 8 BY MR. BLANKS.............................................. 173 4 9 EXHIBITS 10 280207PetJacE1.............................................8 9 11 580122 DOWC.................................................86 17 12 530400API.................................................. 152 8 13 340209 EXXO.............................................. 153 21 14 540000 MOBI 193 4 15 16 17 18 19 20 21 22 23 24 25 5 1 THE REPORTER: Pursuant to the Rules? 2 MR. BEASON: Can we have the agreement that one 3 objection is good for all? 4 MR. BLANKS: We can indeed have that agreement. 5 MR. BEASON: Thank you, Joe. 6 MR. BLANKS: Any other stipulations we need? 7 JACK E. PETERSON, P.E., Ph.D., 8 was called as a witness by the Plaintiff and, after having 9 been duly sworn, testified as follows: 10 EXAMINATION 11 BY MR. BLANKS: 12 Q Good morning, Dr. Peterson. 13 A Good morning, Mr. Blanks. 14 Q It's a pleasure to see you again, sir. 15 A The pleasure is mine, as well. 16 Q I know we covered a lot of things when we began this 17 deposition back on March the 26th of 1993, and you would 18 have thought we could have finished then. I'm going to try 19 not to repeat all those things but I guess of necessity 20 we'll stumble back into some of them and with apologies but 21 we'll just kind of get on through it as promptly as we can. 22 You by now must have seen a copy of that transcript 23 from March of 1993? 24 A I have. 25 Q Have you had a chance to just read through it and see 6 1 what we talked about, refresh your memory? 2 A Yes. 3 Q If I were to ask you those same questions that I asked 4 back then, would you give, essentially, the same answers? 5 A Essentially, with one exception. 6 Q I knew it. 7 A Well, the exception is that I have seen an awful lot 8 more documents and stuff between now and then than I saw 9 then. 10 Q All right. 11 A So, other than that, my answers would be the same. 12 Q I mean, do you adopt this testimony from the March 13 26th, 1993, deposition beginning as your testimony today? 14 A Yes. 15 Q Very good, sir. 16 MR. JONES: Joe, for clarification, would that 17 include any errata sheets he might have supplied to that 18 deposition? I don't know whether he did or didn't. 19 A I don't know whether I did or didn't, either. I just 20 don't remember. 21 Q (By Mr. Blanks) The truth is, I don't either. 22 A The copy that I saw recently had some errors in it. 23 Whether those errors were ever corrected on a master, I 24 don't have any idea. 25 Q Okay. 7 1 MR. ALMQUIST: I think that it may have been the 2 case, because the deposition was not concluded, that we 3 haven't had him go through for the errata sheet at that 4 point. 5 MR. BLANKS: That -- that could well be. So, I 6 guess that remains to be done. 7 Q (By Mr. Blanks) We had your CV attached as an exhibit 8 to that deposition and we don't need to go back through that 9 but I have had a chance at least to go through it myself and 10 we'll have a few questions about that along the way. And I 11 I'm suggesting at this point that to the extent that we are 12 taking any new deposition or beginning any new deposition 13 today or that is in cases other than those that you were 14 noticed in or appeared in back on March 26th of 1993 that I 15 want to attach your CV, which was our Exhibit No. 280207 16 capital PET capital JAC capital E as an exhibit to any other 17 transcript, including the one that Mrs. Bates is going to 18 prepare. 19 And looking at the document that has been so labeled, 20 would you identify that for us, sir? 21 A Yes. That is my CV dated November 9, 1992. 22 Q No doubt you have been busy since then, but is there 23 anything that you would want to add to that by way of 24 publications or anything else worthy to note? 25 A Yeah. There have been three more publications; and my 8 1 activities, professional activities and the organizations 2 have changed since then. 3 MR. ALMQUIST: And, Joe, if you want to just 4 attach this, here is an updated copy as of September 10th. 5 MR. BLANKS: Oh, well, splendid. Okay. Well, 6 then, we'll make this an exhibit to the deposition with the 7 same number followed by a 1 after the E, your middle 8 initial. 9 (Marked Exhibit No. 280207PetJacE1 and is attached 10 hereto.) 11 Q (By Mr. Blanks) So, this will list the new 12 publications? 13 A Yes. 14 Q Anything interesting here? 15 A Well, all my publications are interesting. 16 Q I walked right into that one. We would be talking 17 about the ones that are numbered 53 through 55 are the new 18 ones? 19 A No. There is another one or two new ones that got 20 pushed back because these publications are listed 21 chronologically; and I found a couple of others where I had 22 been listed as an author on NIOSH publications, as I recall, 23 and stuck them in. So, they pushed everything down. The 24 only new one, really, is -- well, let's see. 52 was - 25 yeah. Well, anything dated from 1993, the last two here in 9 1 '94 and '95, are new. 2 Q Very good. Okay. And then, you say another one from 3 the past has been inserted in here somewhere, perhaps? 4 A Yes. Somewhere. I don't even know where. 5 Q Have you ever encountered instances of industrial 6 hygienists using ghost writers to write articles or to 7 coauthor articles with them? 8 A No. 9 Q I've been reading about this in the newspaper lately 10 about some drug companies. I just thought I would ask. 11 A No. I have never seen it. What has happened, what 12 does happen is that there will be a senior author and 13 several junior authors on a publication; and when I was 14 working at the medical college of Wisconsin, my boss, Dick 15 Stewart, wrote several publications where he listed people 16 in the lab almost at random and I got stuck in there as an 17 author because I had contributed to the work but I had no 18 contribution to the publication at all. And that's one of 19 those that I found and stuck back in there somewhere. 20 Q Okay. Well, I remember William Bradley told us once he 21 listed some, I want to say it was, like a maintenance man at 22 the building he was working at as an author on a publication 23 they did; but I hope I am not misquoting him now. 24 Have you been active in litigation work since we met in 25 1993? 10 1 A Yes. 2 Q Roughly, how many times have you gone and given 3 testimony since then? 4 A Roughly, two or three times a month. 5 Q And would this have been mostly for Owens-Corning 6 Fiberglass? 7 A Mostly, yes, but there have been others, of course. 8 Q What other kind of areas have you been testifying in? 9 A Oh, my. Probably next to the asbestos arena for 10 Owens-Corning and Rapid American and other companies here 11 and there, I've been testifying for the welding rod 12 manufacturing defendants mainly in cases where the complaint 13 is manganism. 14 I've also testified for a couple of plaintiffs in 15 asphyxiation cases. 16 What else have I done? No. I don't remember. 17 Q All right, sir. We talked at some length last time 18 about, generally, the nature of the testimony that you give 19 when Owens-Corning Fiberglass engages you. Has the content 20 of your testimony for OCF changed in any significant way 21 from what you told me about before? 22 A I don't believe so. 23 Q Okay. 24 A Virtually every time I testify, I say about the same 25 thing; but some attorneys want to emphasize some areas of my 11 1 testimony more than others. So, it does vary from case to 2 case; but I talk about industrial hygiene. 3 Q Okay. I'm thinking that you have been listed as an 4 expert in at least one of these cases that you are here in 5 today that's still an active case against OCF. Is -- what's 6 going to be the essence of the opinion you give, if you are 7 asked; or have you even been asked to give one in 8 connection, let's say, with the Hicks case? 9 A I know nothing about the Hicks case. 10 Q Okay. Do you know whether you are going to be used as 11 an expert or called to a trial or not? 12 A No, I do not know. 13 Q All right. But if the past performance is any 14 indication, your testimony will be along the lines of about 15 the same specific areas as its been in the past for OCF? 16 A So far as I'm concerned, it will be, yes. 17 Q All right, sir. Have you been teaching any courses 18 since we visited before? 19 A No. No. I have not done any teaching at all. 20 Q Was there a time during your teaching years that you 21 taught industrial hygiene courses? 22 A Oh, yes. 23 Q Was that the topic? 24 A I taught, basically, industrial hygiene and air 25 pollution courses. In addition, toward the end of my 12 1 teaching career, when I was teaching at the University of 2 Wisconsin Parkside campus, I taught toxicology; 3 pathophysiology; a course called "The Body in Question," 4 which was designed to try and interest students in science, 5 industrial hygiene, and air pollution laboratories. I think 6 that's about it. 7 Q Were your industrial hygiene courses just general, 8 survey-type courses; or did they deal with specific areas? 9 A Yes. 10 Q Yes and yes. Okay. I mean, so you - 11 A Yeah. Generally, a survey -- if you read my book, 12 that's what I use as a text for my industrial hygiene 13 course; and that book arose from an outline that I would 14 pass out to students for my industrial hygiene course. 15 Q You probably made the students buy the book, too? 16 A No. I didn't make them do anything. The book was 17 available if they wanted to buy it. 18 Q Oh, okay. Well, did you teach any specially - 19 specialized industrial hygiene courses - 20 A Oh. 21 Q -- focusing on anything like, maybe, ventilation or, 22 you know, some narrow niche? 23 A No. 24 Q Okay. We didn't get a chance to talk much about the 25 folks that you had worked with along the way. I mean, you 13 1 mentioned some gentlemen from Dow, as I recall. You, no 2 doubt, met a lot of people going to the AIHA annual meetings 3 and section meetings and so forth, would I be right? 4 A You would be right. 5 Q And I think you said you started in the AIHA around 6 '56? 7 A Yes. The -- one of the requirements for membership is 8 that one work as an industrial hygienist for three years, 9 and I had started in industrial hygiene in '53. So that I 10 joined AIHA in '56, as soon as I was eligible. 11 Q Before actually joining, had you attended any AIHA 12 meetings? 13 A Only local section meetings. 14 Q Was there a local section? 15 A There was a Michigan section that met in the Detroit 16 area that those of us in the industrial hygiene group 17 attended now and then. We didn't attend all their meetings. 18 Q Was Mr. Patty a member there? 19 A I don't think I ever met Frank Patty. I don't recall 20 meeting him, if I did. 21 Q Did you ever meet William Bradley? 22 A Oh, yes. 23 Q What -- where did you run into him? At the AIHA 24 activities? 25 A Yeah. At one of the national meetings. I have seen 14 1 him since, of course. 2 Q Do you remember, I bet you do, the first three or four 3 annual meetings you went to, where they were? 4 A I remember the first one in '56 was in Philadelphia. I 5 don't remember the next couple because I didn't go every 6 year. I just went periodically. There were several in our 7 group, and all of us couldn't go to any one meeting. 8 Q You mean, they just wouldn't pay for you to go, huh? 9 A That's correct. 10 Q You did get to go to the one in Philadelphia in '56, 11 you recollect? 12 A Yes. 13 Q And then, did you later set up a local section in the 14 Midland area? 15 A We did. 16 Q You were instrumental in that? 17 A I was one of those who was. 18 Q Roughly, when was that, sir? 19 A Oh, my. Let's see. It would have been the late '50s 20 or early '60s, but I can't pinpoint it anymore than that. 21 Q It probably doesn't matter anymore than that. Did you 22 ever meet Phil Drinker in your professional activities? 23 A No. 24 Q How about Tony Lanza, the physician from Metropolitan? 25 A No. I know who he is, but I've never met him. 15 1 Q Did you become acquainted with Jim Hammond from Exxon 2 and Standard? 3 A I have known Jim for many years. Where I met him, I 4 don't recall. 5 Q Did you ever go to any of the, oh, Industrial Health 6 Conferences that were put on down in the Houston area by the 7 Houston Chamber of Commerce and the Gulf Coast section? 8 A No. 9 Q Okay. And you told me you recall having no involvement 10 with the API at any time? 11 A That's correct. 12 Q Do you know if Dow had any membership or participation 13 in API activities? 14 A No, I don't know. 15 Q Okay. You had talked about going to free -- I mean, to 16 Texas to Dow plants and that you had been down there a 17 couple of times to Freeport. Am I right? 18 A You are right. 19 Q Do you remember now what the purpose of your visits 20 were? 21 A One was to help solve a customer's problem in extruding 22 polyethylene, but I don't recall what I was doing at the Dow 23 plant for Dow. 24 Q Did -- would -- would you recall enough to say that you 25 didn't go down there specifically to do a plant survey or 16 1 monitoring? 2 A I can tell you that I'm sure that I did a walk through 3 the plant. I don't recall taking any air samples or 4 measuring noise or anything on that order. Although, I may 5 have done so. I just simply do not recall. 6 Q Can you place these visits in time? 7 A No. 8 Q It's a good thing we moved over. 9 A It is getting noisy. 10 Q I think you told me that the Texas Dow plant did not 11 have an in-plant industrial hygienist when you -- on the 12 times you went down there? 13 A That is correct. They had a physician, but they didn't 14 have an industrial hygienist. 15 Q Do you recall the name of the physician? 16 A Jack Killian, K-i-l-l-i-a-n, I believe. 17 Q Do you know if that gentleman would still be living? 18 A I don't know. 19 Q And when you went to Freeport, were you traveling 20 alone; or were you accompanied by someone else from the 21 biochemical research department? 22 A I think I was the only one from the biochemical 23 research lab who went when I went. I flew back once on a 24 company plane with a number of Dow people, but none of them 25 was from the Dow chem lab. 17 1 Q Along the way in your professional activities, did you 2 ever run into Wilhelm Hueper? 3 A I know of him, but I've never met him. 4 Q How about Dr. Smith or Smithe from the Pittsburgh area, 5 Mellon Institute? 6 A Yes. I met Henry and knew him as an acquaintance that 7 I ran into at the meetings. 8 Q I think you have told me you don't remember ever going 9 to an Industrial Hygiene Foundation meeting. 10 A I don't know whether I told you or not, but I never 11 did. 12 Q Well, tell me again. But you do remember receiving the 13 "Industrial Hygiene Digest" at Dow? 14 A Dow received it. I didn't. It was in the biochemical 15 research laboratory library. 16 Q Well, let's -- let's talk about the library just a 17 little bit. Dow had more than one library there at the 18 Midland facility, didn't it? 19 A There was a central library to which everyone had 20 access; and then, each small group had its own library, so 21 far as I'm aware. The biochem lab most certainly had its 22 own library, which was quite small. 23 Q Quite small but quite extensive at the same time, 24 wasn't it? 25 A Well, extensive in that it had a couple of the 18 1 abstracting services volumes there, chemical abstracts or 2 biological abstracts. I've forgotten which. 3 Q Yes, sir. 4 A It had the "Index Medicus" and then a whole slough of 5 magazines and books and so forth. 6 Q And a very good collection of the journals that would 7 be of interest to an occupational physician and an 8 industrial hygienist and a toxicologist, correct? 9 A No, not in the library necessarily. The only journal I 10 recall in the library was the journal of the American 11 Medical Association. Those of us who were interested in, 12 for instance, industrial hygiene usually got that with our 13 membership in AIHA. We got the journal or the quarterly, it 14 started out being. And others subscribed to the AMA 15 "Archives of Environmental Health" or whatever it was 16 called at that time. In fact, that may have been in the Dow 17 biochem lab there. 18 Q And the "Journal of Industrial Hygiene and Toxicology" 19 was there, as well, wasn't it? 20 A Well, that sort of became another journal; and I don't 21 recall that we had any of the old issues there from the 22 "Journal of Industrial Hygiene and Toxicology." That 23 became the AMA "Archives of Environmental Health" or 24 whatever, I think. 25 Q Oh, okay. It started out being published at Harvard 19 1 under Dr. Drinker's guidance, right? 2 A Your memory is better than mine. I don't recall where 3 it started. 4 Q Okay. At any rate, in terms of technical reference 5 material and resources, you weren't lacking at the Dow plant 6 in those, were you? 7 A No. 8 Q If you needed it, you could either find it there 9 in-house or you had professionals who could find it 10 somewhere and get it for you? 11 A Yes. We, also, of course, had access to the central 12 Dow library where we could either get professional help, if 13 we needed it; or we could simply browse, if we wished. 14 Q Was that something that you would do from time to time? 15 A Oh, I think I was over there two or three times in the 16 13 years I was at Dow. 17 Q You only browsed two or three times, you say? 18 A I only ran across problems where I needed to get into 19 nonindustrial hygiene, nontoxicology literature a couple of 20 times that were over there. 21 Q Oh, you were only at the central library a couple of 22 times, you say? 23 A That's right. 24 Q Otherwise, the resources in the biomedical library were 25 adequate? 20 1 A Yes. 2 Q And I suppose if you needed an article that had been 3 published in a foreign language journal, those would have 4 been available to you for the asking? 5 A They would have been, yes. We had translation 6 facilities at Dow. 7 Q Indeed, the old "Industrial Hygiene Digest" even 8 abstracted foreign language journal articles, didn't it? 9 A Probably. I don't right offhand remember any of such, 10 but I don't know why they wouldn't. So, I suspect they did. 11 Q Okay. And the same would have been true in the 12 "Journal of Industrial Hygiene and Toxicology," correct? 13 A I don't understand what you mean by "the same." 14 Q That one could find in the "Journal of Industrial 15 Hygiene and Toxicology" abstracts of articles from 16 professional journals in Germany or France or Scandinavia? 17 A I don't remember. 18 Q Were these journals of the type we have been discussing 19 among the resources that you used in the early '50s and even 20 later to continue educating yourself and broadening your 21 training - 22 A Of course. 23 Q -- in industrial hygiene? 24 A Of course. 25 Q All right. Would I be right in thinking that you would 21 1 routinely review the journals as they came in both your AIHA 2 quarterly and perhaps one or more of these others that you 3 have mentioned? 4 A Yes. Not necessarily as they came in. I was pretty 5 busy, as we all were; but as time became available, a few 6 hours here and there, -7 Q Yes, sir. 8 A -- I would review the journals, yes. 9 Q Okay. Did you -- did you ever get acquainted with 10 Kerry McCord? 11 A I met Kerry when I went back to school -12 Q All right. 13 A -- at Ann Arbor in '65. He may have appeared at one of 14 the meetings of the local section, as well. I can still 15 remember what he looks like. I never had any real 16 conversation with him. I was part of a group that went past 17 his facilities. 18 Q What -- what was he doing when you met him in the mid 19 '60s? 20 A He was a professor emeritus, as I recall, and mainly 21 writing. 22 Q And he had been active in the industrial health field 23 in the Detroit area for many years, had he not? 24 A Decades, yes. 25 Q Okay. Do you recall what company he had worked with 22 1 along the way? 2 A No. No. I have no recollection of that at all. 3 Q Now, Mr. Patty was affiliated for many years with 4 General Motors Corporation, was he not? 5 A Yes. He was the head honcho industrial hygienist at GM 6 for many years. 7 Q Did Bill Bradley ever tell you how he and Frank Patty 8 had started out together? 9 A No. I never sat down to reminisce with Bill. 10 Q I'll tell you at the break. Did you ever come across a 11 Dr. William Fulton from the Pennsylvania Department of 12 Health? 13 A No. 14 Q Dow didn't have any plants in Pennsylvania, did it? 15 A Not that I'm aware of. 16 Q In your training, did you ever get a chance to go to 17 Harvard and take any short courses up there? 18 A No. 19 Q Were any of the gentlemen at Dow who you knew in the 20 industrial hygiene department trained at the Harvard Public 21 Health School? 22 A No, not that I'm aware of. 23 Q Am I right in thinking that most of these men had 24 engineering backgrounds like yourself? 25 A Yes. Well, while I was there, almost everybody had an 23 1 engineering background, except for Mr. Hoyle, who did not, 2 and Larry Silverstein had a background in radiation biology 3 or something on that order but most of the other people who 4 came through the lab or who subsequently got hired were 5 engineers. 6 Q Okay. Where did Mr. Silverstein go after Dow? Do you 7 know? 8 A To Dow subsidiaries of one kind or another. He went - 9 he eventually wound up at Dow Corning and retired from Dow 10 Corning, but he worked for another Dow something or another 11 in the meantime. 12 Q Do you know if he is still living? 13 A The last I knew, he was, yes. 14 Q We asked about Phil Drinker, and I wonder in that 15 connection if you ever meet Ted Hatch? 16 A Yes. I did meet Ted Hatch. 17 Q Just kind of in passing or - 18 A No. This was in probably '63 or '64 when I was 19 seriously considering going back to school. So, I found Ted 20 Hatch at one of the meetings and talked with him about going 21 to Pittsburgh. I also found Russell Silverman; and I talked 22 to him, as well. I eventually, of course, went with Warren 23 Cooke at the University of Michigan. 24 Q So, you were in Mr. Cooke's program? 25 A Yes. 24 1 Q Okay. And can you tell us anything about Warren 2 Cooke's background? 3 A Warren worked for an insurance company of some kind or 4 another for many years. He was one of those people who 5 evaluated the exposures of radium dial painters; but whether 6 he did that for the insurance company or for the Public 7 Health Service, I don't remember. But Warren was rather 8 proud of the fact that everybody thought that these gals 9 were getting their major exposure because they pointed the 10 brushes with their lips they used to paint the radium dials; 11 and he and the crew that he was working with showed that it 12 was inhalation of radon that overexposed them, not the oral 13 ingestion. 14 Q Really? 15 A Yes. 16 Q Did you use Drinker's and Hatch's textbook or technical 17 book in your work at Dow? 18 A We had it available. Whether I actually used it or 19 not, I don't recall. I recall reading it, but I don't 20 remember that I had other access to it subsequent to that. 21 Q Okay. Is it -- was it from that book, at least in 22 part, that you learned principles of air monitoring and 23 sampling and such as that? 24 A No. I was taught how to do air monitoring and sampling 25 by Mr. Hoyle and Mr. Schneider; and I occasionally, of 25 1 course, would check up on a new method or something on this 2 order. But most of what I learned about how to do this kind 3 of thing I learned from Hoyle and Schneider. 4 Q I noticed on your -- on your resume that most of the 5 articles you wrote in the years you worked at Dow and 6 sometime after that focused on vapors and gases; is that 7 fair? 8 A Yes, it is fair. 9 Q And I inferred from that that most of the work you did 10 at Dow that involved sampling and monitoring was in that 11 same area? 12 A That is correct. 13 Q In the early '50s, could you tell me what kind of 14 devices you used at Dow for sampling for vapors and gases? 15 A One of the techniques that I did quite a bit of 16 research on was the use of silica gel as an adsorbent for 17 vapors, and all of us used that technique quite a bit. 18 We also used a combustion technique that we had fitted 19 out into a -- well, it wasn't a portable. It was a mobile 20 sampler. It was something you can take out and sit in the 21 middle of someplace or another and run it. It simply took 22 air through a heated quartz tube to break down the organic 23 chemical so that we could adsorb the chlorine or bromine or 24 whatever halogen was attached to it, and most of the organic 25 chemicals that we had at Dow had a halogen attached. So, 26 1 this was a good, rough-and-ready technique we used. 2 When they came out, we began to use detector tubes. 3 Mainly, the Drager tube was the first one that we had; and, 4 in fact, we had a small program of evaluating detector tubes 5 because we wouldn't use anything until we had proved to 6 ourselves that it worked. 7 We used sampling in saran bags for various vapors and 8 then put the air from the bag into either an infrared 9 spectrometer or another gadget or we took it to the lab and 10 burned it in our own furnaces to determine the halogen in 11 it. Those are the main methods we used. 12 Q Did you have the means to sample for benzene in the 13 air? 14 A Sure. Benzene will adsorb onto silica gel. And then, 15 when the charcoal tubes came out with the battery-powered 16 pumps in the late '50s and early '60s, we began to use 17 those, as well. 18 Q Would benzene have been a material that you would have 19 had present in the Dow plants in the '50s and '60s? 20 A Yes. 21 Q In connection with what kind of processes? 22 A It wasn't something I had anything at all to do with. 23 So, I'm afraid that my memory is hazy. Probably, it was a 24 reactive with a chemical to form chlorobenzene or 25 dichlorobenzene or something on this order; and that was 27 1 further used in something else. But we didn't have very 2 many processes that began with benzene as a raw material, 3 but we had benzene in all the laboratories and so forth. 4 Q You probably had some acquaintance with benzene from 5 your laboratory experiences as a student, correct? 6 A Yes. How did you know? 7 Q That is what I've heard. 8 A No, not at as a student. When I was a teaching fellow 9 at the University of Michigan in the 1952 or '53 era, I 10 worked for a gentleman by the name of Dr. Townsend who 11 taught a laboratory for mechanical engineers to teach them 12 how to do some of the testing things that mechanical 13 engineers did, such as dynability testing and so forth. We 14 were forever using oils in that lab, and his favorite 15 solvent was the constant boiling mixture of benzene and 16 carbon tetrachloride. That was the first time I ran across 17 benzene in the laboratory with any use other than sitting in 18 a bottle. 19 Q Did you learn while you were at school that this was a 20 material that needed to be handled carefully and had health 21 effects? 22 A No. 23 Q Did you learn that at Dow? 24 A Oh, yes. 25 Q I think you have told me before that you really didn't 28 1 get much training at university undergraduate or on your 2 masters level about the health hazards or toxicity of the 3 materials that even a chemical engineer might be working 4 with. Am I right? 5 A You are correct. I got no training in that area 6 whatsoever. 7 Q So, what you learned, you learned at Dow beginning in 8 1953? 9 A Three, yes. 10 Q And how did you go about being taught those things or 11 learning those things about what materials were hazards in 12 the workplace or could be? 13 A First of all, my very first job other than doing the 14 work with silica gel and the various hydrocarbons or health 15 and your hydrocarbons that we used was to read Patty. So, I 16 read Patty's first volume, only volume, of "Industrial 17 Hygiene and Toxicology" from cover to cover and discussed 18 various portions of it with Mr. Hoyle and Mr. Schneider. 19 And then, I went out into the field with these two 20 gentlemen and learned how to do things. It was the 21 apprenticeship route more than anything else. 22 Q All right. Probably the only one that works. 23 A Sometimes it is the only one that works, yes. 24 Q Do you recall, Dr. Peterson, if in the early '50s when 25 you were the apprentice of Mr. Hoyle if he had something 29 1 like an inventory of stressors for the different units in 2 the plant? 3 A He didn't at the time I went to work for him. 4 Q I'm gathering that maybe there came a point when there 5 was. Did you work on that? 6 A Yes, I did. That was one of my first big jobs was to 7 go to every production plant in the Midland area that Dow 8 had and to inventory the materials that were brought into 9 the plant for processing, the by-products of the processing, 10 and the products that they were producing as well as to draw 11 a flow diagram of each process. I did that over a period of 12 about two years and eventually got to every process, 13 including pilot plants and semi-plants in the Midland 14 division area. 15 Q So, this project of yours resulted, then, in a -- some 16 sort of an inventory that was current for each unit in the 17 Midland plant? 18 A Yes. 19 Q Was a similar effort made for other Dow plants in the 20 country? 21 A I don't think so. 22 Q And then, could you tell me how the industrial hygiene 23 department and perhaps the medical department, as well, made 24 use of this inventory of stressors? 25 A Most of the jobs that we got to do out in the plant 30 1 were initiated either through the safety department, which 2 had safety engineers going throughout the plant all the 3 time; and they would see things that we didn't see. 4 Sometimes we got calls from plant superintendents. 5 Sometimes we got a call from somebody at the medical 6 department that they had come across a potential problem. 7 We would, then, use the flow diagram and the inventory 8 of materials to see what we might have to encounter or to 9 look for or to look at when we went out to visit the plant. 10 Q Maybe it would be worthwhile if you could take me 11 through the projects that you remember doing and I know you 12 won't know all of them but the ones that stick in your mind 13 in a chronological order. 14 A Okay. 15 Q And then, we won't -- well, we can approach it in a 16 more organized fashion and move on that way. 17 A All right. Throughout the whole period I was there, I 18 either on my own or along with one of the other fellows in 19 the group would go out and handle problems. We would grease 20 the squeaking wheel, so to speak. So, that started from 21 Day 1 and went on. So that is a continuing thing underlying 22 everything else. 23 The first real project I had was the analytical one 24 that we've talked about already. 25 The next real project I had was this inventory and flow 31 1 diagram project that we have talked about. In doing that 2 project, I became acquainted with every building that Dow 3 had; and at that time, there were a few hundred buildings in 4 the plant. And I saw problems, too, that -- or problem 5 areas or areas where problems might exist and initiated 6 surveys and so forth either by myself or by one of the other 7 fellows. 8 When I was working in the laboratory area, I became 9 aware that many of the laboratory hoods appeared to me to be 10 very inefficient. So that started a project of making a lot 11 of measurements of flow into laboratory hoods and that in 12 turn culminating in a paper that I wrote discussing a method 13 that I devised to evaluate laboratory hoods. 14 Soon after I was in the industrial hygiene group, which 15 we called environmental health engineering, incidentally, I 16 was initiated into the slide talk that the group had 17 developed that was used -- well, developed, really, to 18 introduce the industrial hygiene group to people in a plant 19 that we intended to do a survey in. It became a very 20 popular slide talk; and we quite often were requested to 21 give it by members of the safety department for a safety 22 meeting, even though we weren't intending to visit that 23 plant for any particular purpose. 24 The culmination of the slide talk was to ask people in 25 the audience if they had any questions about the materials 32 1 that they were handling. We used our inventory and flow 2 diagram information to answer those questions, help us 3 answer those questions. 4 That's a preface to the fact that about in the middle 5 of the time that I was there, which would be along about 6 '59, '60, or '61, I was asked by Mr. Hoyle to redo the 7 slides. They were getting old and out of date. So, I got a 8 photographer, a Dow photographer, and we went around and 9 took a bunch of pictures and I culled those pictures and 10 renewed our slide talk. 11 Because I had worked with the laboratories in my 12 laboratory hood investigations, I became well acquainted 13 with everybody in the labs doing research work that might 14 lead to a production process and that began the process that 15 I finally wound up doing and that was helping processes grow 16 from the laboratory bench to a pilot plant to full 17 production and that was the last project I had in the 18 industrial hygiene group. 19 Q And what was it that lead you to leave industry and 20 return to the university? 21 A My wife's nagging. When we married, I had made the 22 remark several times that I had gone back to school after my 23 bachelor's degree with the intention of going on and getting 24 a doctorate. I married my wife instead; and after we had 25 been in Midland for a few years, about six years, in fact, 33 1 she began to push to leave Midland and go back to school. 2 Seven years later, I acceded to her desires. 3 Q Okay. Well, I can't quibble with that, certainly not 4 now. 5 A No, not now. I -- I wouldn't go back. She did 6 everything just right. 7 Q All right. At Dow, was there any use of your insurers 8 to do surveys or to work with your industrial hygiene 9 department in accident or exposure prevention? 10 A Not with industrial hygiene, no. 11 Q Do you -- are you aware of any cooperation with 12 insurers in the medical department? 13 A No. I know nothing about the insurers at all and 14 whatever they may have done. 15 Q Okay. What were your AIHA committee memberships that 16 you regard as most significant? 17 A Well, they are on my CV; and they are easy to look at 18 there. But the first committee that I got involved with was 19 the Hygienic Guides Committee. I was on that committee 20 from, what, '63 to '73 or something. I don't remember the 21 years now. I'd look at my CV to find out what the years 22 were. And I eventually wound up as chairman of the 23 committee. 24 When I first joined it, the committee was run by 25 Charles Carpenter, who worked for Henry Smith, whom you have 34 1 mentioned; and Carp did a very good job of running the 2 committee. But after I had been on it for six or seven 3 years, he decided he wanted to do something else with his 4 spare time and asked me to take over the committee for him. 5 I did and decided to change things a little bit, and 6 the change that I tried to institute ruined the committee. 7 We never wrote another "Hygienic Guide" while I was there, 8 unfortunately. I was trying to find a way of getting the 9 people who volunteered to write these things, which is a 10 horrendous task, to get some recompense for what they did; 11 and that was too big a change for AIHA and the members of 12 the committee to accept. And, therefore, they sat on their 13 hands; and I finally decided the only way to get things 14 going was for me to leave and to get somebody else in there, 15 which is what I did. 16 Q Could you tell us, in summary, what a "Hygienic Guide" 17 was? 18 A I have brought some with me, if you would like to see 19 them; but, in summary, they are a small treatise on the 20 industrial hygiene aspects of chemicals. They have physical 21 property information. They have information, in brief, 22 about the toxicological properties of the materials, the 23 hazards of the materials, how to avoid those hazards, how to 24 do the air sampling and so forth that is necessary. 25 Q How far back in time does this project go with the 35 1 AIHA? 2 A The early '50s. 3 Q Did you yourself work on authoring any of these? 4 A Oh, yes. 5 Q And what would -- what would have been the sources of 6 information that you used in preparing the "Hygienic Guide"? 7 A Okay. What happened was that I was looking for some 8 information about trichloroethylene and I looked at the 9 "Hygienic Guide" and I was very dissatisfied with its 10 format, more than anything else, and decided to rewrite the 11 trichloroethylene hygienic guide. I did that and submitted 12 my rewriting of that guide to the Hygienic Guides Committee 13 and was promptly appointed a member of the Hygienic Guides 14 Committee. 15 Q That will teach you a lesson. 16 A Yeah, that did. I quit volunteering so much at that 17 point in the game. But at any rate, from then on, we used 18 my format for "Hygienic Guides"; and it is a much better one 19 than had been used previously. 20 Q You said modestly. 21 A I said modestly, of course. 22 Q Okay. But I was asking, I think, what -- and it's kind 23 of a general question. 24 A Where did I get the information? 25 Q Yeah. Where would you turn to to pull this together 36 1 and make a concise guide that would be actually useful to 2 somebody that wasn't a real professional with your knowledge 3 and experience? 4 A Well, the guides are written for industrial 5 hygienists. They aren't written for other people. 6 Q All right. Okay. 7 A They are written for -- they are memory joggers, if you 8 will, for industrial hygienists more than anything else. So 9 that they are written for people such as I. 10 But where did I get the information? From the 11 literature. One doesn't write a "Hygienic Guide" without 12 doing a very complete literature search. And then, I 13 occasionally, when I was writing such guides, would use 14 information that we developed at Dow. But, mostly, we 15 didn't use that unless it had been published. People like 16 AIHA and other organizations don't like information that 17 isn't published. So, we would usually wait until the stuff 18 appeared in print before we used it. 19 Q Okay. When you did your inventory at, I assume, 20 Mr. Hoyle's direction back in the -- in '53, '54, when you 21 started that, did he also have you looking for other 22 stressors in the plant besides things that came in as 23 feedstock and went out as product or fell off as 24 by-products? 25 A No. That was my job to do just as I said. But as I 37 1 indicated, I was in all the plants; and I would come back 2 and say, "Gee, it seems to me that it's awfully noisy in 3 this plant. I think we ought to evaluate the noise." 4 And because of that, I got also interested in heat 5 stress, which is actually another project that I had that we 6 haven't talked about; and that's what I wound up doing for 7 my Ph.D thesis. 8 So, that kind of thing I would bring back to Mr. Hoyle 9 and to others in the group. We had weekly meetings, as I 10 recall; and we would discuss these things at those meetings 11 and what to do about them. 12 Q How old, roughly, was the industrial hygiene program at 13 Dow when you got there in 1953? 14 A I believe that Mr. Hoyle started the program in 1948. 15 I could be wrong a year or two on that. 16 Q Sure. Did you ever encounter while you were at Dow 17 between '53 and '65 an inventory of nonprocess materials? 18 A No. 19 Q And you understand what I'm - 20 A I know what you are getting at. No. 21 Q -- talking about? No. Okay. 22 A There wasn't any such inventory, so far as I'm aware 23 of. I certainly didn't compile it, and I wasn't aware of 24 anybody who did. 25 Q Okay. If -- if you had been charged with that task, 38 1 would it have been practical and reasonable to maybe just 2 take the TLV list of that time and just look to see which of 3 the described items were present in the plant? 4 A It -- we could have done that. However, at Midland, at 5 any one time, we were handling between 450 and 650 6 chemicals, most of which had TLV's. So that wouldn't have 7 been very helpful. 8 Q When you say you were handling chemicals, I mean, those 9 are the ones that you looked at in your inventory, correct? 10 A Yes. That's correct. 11 Q The ones that were used in the manufacturing process? 12 A Yeah, or in the laboratories. 13 Q Yeah. Okay. And were there TLV's for those 14 400-and-some-odd chemicals? 15 A No, not by a long shot; but most of the materials on 16 the TLV list were ones that we handled in the plant one way 17 or the other. 18 Q Okay. 19 A Not all but most. 20 Q Okay. And as for those materials, let's say, chemicals 21 that weren't on the TLV list in 1953, '54, '55, did it fall 22 on you fellows in the industrial hygiene and the toxicology 23 departments to come up with some standards for exposures and 24 limits? 25 A Certainly. 39 1 Q How -- how did you go about doing that in that period? 2 A Basically, the toxicology lab was in charge of this; 3 and it was done by means of animal experiments, either acute 4 or subacute or chronic inhalation toxicology. 5 Q So, at least by 1953, the Dow toxicology laboratory had 6 the capability to do animal inhalation studies? 7 A Oh, yes. That was another project that I did that I 8 didn't mention. Along about 1955 or something on this 9 order, Dow hired a gentleman to run its vapor inhalation 10 chambers, a fellow by the name of Ted Torkelson. And after 11 he had been there for a year or so, Ted and I traded jobs 12 for six months or a year and I ran the animal inhalation 13 chambers and Ted was the industrial hygienist for that 14 period of time. 15 Q Did Ted stay with the company for years? 16 A Yeah. He -- he retired a few years ago and is a 17 consultant somewhere in Michigan now. 18 Q And would this experience you just described around '55 19 have been your introduction to toxicology? 20 A Well, I had been introduced to toxicology by reading 21 Patty's book. So, that was the real introduction. This was 22 my introduction to hands-on toxicology, if you will. 23 Q Okay. That's the question I should have asked, 24 obviously. And you worked in the inhalation lab at this 25 time? 40 1 A Yes. 2 Q Did you do skin painting there, too? 3 A Not in the inhalation lab. Skin painting was done, 4 sure, from the very start, so far as I know, because one of 5 the things that the toxicology lab was charged with doing 6 was to determine whether this stuff, whatever it might be, 7 was going to be a potential hazard to people and what that 8 hazard would be, whether it would be from getting it on your 9 hide or in your eyes or inhaling it or whatever. 10 Q Did the information that Dow developed in its 11 toxicology lab make its way to the TLV committees of the 12 ACGIH in any way? 13 A Yes, sir. 14 Q How did that happen? 15 A Basically, through publication. The Dow lab, 16 toxicology lab, was a very well-known and very 17 well-respected lab; and they wrote papers and published the 18 results of their papers, whether it was from chronic 19 inhalation toxicology or shorter term work or something more 20 esoteric, such as the metabolism of these materials and so 21 forth. There were papers on all of these subjects that were 22 published by the toxicology lab. 23 Q Were any of the Dow toxicologists actually ex officio 24 members of some of these ACGIH committees? 25 A Not at that time. Later, Ted Torkelson became a 41 1 consultant to the TLV committee without voting rights but as 2 a -- just as a consultant. He is the only one that I'm 3 aware of whoever did this. That was well after I left Dow. 4 Q Well, all right. I was thinking that maybe VK had done 5 some of that, too, that you are aware of? 6 A I really can't talk to VK. I didn't -- I wasn't that 7 close to VK. He was in toxicology, really; and I was in 8 industrial hygiene. Even though Mr. Hoyle reported to VK 9 for a while, I didn't. 10 Q Yes, sir. Can you give me a little more specifics on 11 your work in the laboratory, what kind of projects you 12 worked on in the animal inhalation lab during that year that 13 you did it around '55? 14 A It may only have been six months. 15 Q Okay. 16 A The -- I had two projects, really. One was to make 17 sure that the animals were properly and correctly exposed. 18 The other one was to try and straighten out the fellow who 19 was actually doing the work who was many, many years my 20 senior. He was about ready to retire and he tended to set 21 things up and then leave and that wasn't what he was hired 22 to do. 23 Ted had been unable to straighten him out; and so, I 24 was asked to do so. And that's the hardest job I have ever 25 done in my life. I am not cut out to be a supervisor and I 42 1 learned that very easily and well but I did the job and - 2 even though I may have gotten ulcers from doing so, that's 3 what I did. 4 Q Lord, it may have been harder on that man than you. 5 A It may well have been. 6 Q Maybe that's why they put you over there. 7 A That was one of the reasons for putting me over there, 8 yes. 9 Q Okay. But in terms of the science that you were doing, 10 I mean, were there any particular materials you remember? 11 A I remember isopropyl chloride is one of the materials 12 that we ran while I was there. I think vinylidene 13 chloride. We may have even have run vinyl chloride, but I'm 14 not sure. This has been too long ago. 15 Q Did you ever encounter Don Irish, or was he gone by the 16 time you were there? 17 A Oh, no. I knew Don Irish very well. 18 Q And remind me. What was his position there? 19 A He ran the Dow chemical research lab. He was the 20 director of the lab. He had two assistant directors and 21 then several group leaders, if you will, who reported 22 through one of the assistant directors, Edgar Adams, to 23 Irish. But then, Irish poked his nose in everywhere; and 24 all of us got to know him very well. A great talent. 25 Q And was he a toxicologist by training or a physician? 43 1 A He was a biochemist by training. He had been hired by 2 the founder of the company and was -- told us many times 3 that he was hired and went to work and said to his boss, 4 "What do you want me to do?" The guy says, "Biochemistry, 5 whatever that is. And do whatever you think needs to be 6 done." 7 So, he eventually established the toxicology lab and 8 shortly thereafter hired Mr. Hoyle to do industrial 9 hygiene. He hired Hoyle from the safety department. 10 Q Would you say that during the years you were there, '53 11 to '65, that the Dow biochemical laboratory was on a par 12 with the best in the country? 13 A Either on a par or better than. It was well recognized 14 as being one of the premiere establishments in the world for 15 what it was doing. 16 Q Okay. You have told me when we visited previously that 17 you never really had anything to do with asbestos in the Dow 18 plants? 19 A Well, I did -- I think I told you that I did one, one 20 survey. 21 Q Excuse me. I misstated. That's right. 22 A Other than that, that's the only one that I had 23 anything to do with asbestos in. 24 Q Okay. Let me start over so we have got just one 25 question and answer, then. 44 1 I think you told me before that you had had one 2 occasion at Dow to survey for asbestos, and that was in 3 connection with a project that was formulating vinyl 4 asbestos floor tile resins and samples, correct? 5 A Yes. 6 Q Okay. And in your inventory project of the plant, you 7 did not become aware that thermal insulation in the Dow 8 plants in 1953 contained asbestos? 9 A I did not. 10 Q And I believe you told me that even by the time you 11 left in 1965, you were not aware that thermal insulation in 12 the Dow plants contained asbestos? 13 A That is correct. 14 Q Okay. Which is not to say that the Dow plant in 15 Midland did not have asbestos-containing insulation during 16 those years, is it? 17 A Today, I'm sure it did; but at that time, I didn't know 18 it. 19 Q Okay. Now, if you had been using the TLV's, the 20 threshold limit value table or the maximum allowable 21 concentration table or whatever it's called in 1953, to 22 inventory, to help you inventory the plant, would you have 23 found asbestos as one of the materials listed on the table? 24 A I can't speak for Jack Peterson in 1953, but I doubt 25 it. 45 1 Q Well, I - 2 A I didn't have anything to do with the people who were 3 handling asbestos-containing materials. 4 Q Well, I appreciate that; and I'm really not trying to 5 argue that point with you. I was just asking that if the 6 1953 TLV tables list asbestos? 7 A Yes. 8 Q All right. 9 A Absolutely. 10 Q And they also listed silica in 1953? 11 A Yes. They started out listing both materials in 1946 12 and have done so ever since. 13 Q All right, sir. And would benzene also be on the table 14 back as far as 1946? 15 A Yes. 16 Q Would you or did you recognize benzene as a material 17 that was suspected of causing leukemia in the '50s when you 18 started industrial hygiene? 19 A No. We were aware that benzene could cause aplastic 20 anemia, but that was the most severe disease that we were 21 aware of benzene being associated with. 22 Q And that would have been in the early '50s? 23 A Throughout the time I was at Dow, from the early '50s 24 through the mid '60s. 25 Q By the time you left Dow in the mid '60s, had you 46 1 become aware that benzene was suspected of causing other 2 malignancies or leukemias? 3 A I certainly eventually learned that; but when I learned 4 it, I don't recall. 5 Q Did you have anything to do along the way with the CMA 6 or the MCA? 7 A No, not directly. Our representative to that group was 8 Edgar Adams, who was one of the assistant directors of the 9 lab, and Edgar occasionally would talk to those of us in the 10 industrial hygiene group about things that the group was 11 doing or that group was doing but I didn't have any direct 12 input or -- to it or from it. 13 Q Okay. Never made it to a meeting? 14 A Never. 15 Q Do you recall ever seeing any printed material coming 16 out of the CMA that would deal with industrial hygiene or 17 occupational health? 18 A Sure. They had some data sheets, and we had a 19 collection of those data sheets that MCA -- I think it was 20 MCA at that time, -21 Q It started. 22 A -- Manufacturing Chemists Association. 23 Q Yes, sir. 24 A Yeah, we had them. I had a set in my desk, in fact. 25 Q Would you tell me what you called those? 47 1 A No. I don't recall. Probably the MCA sheets. I don't 2 know. 3 Q Were they like the "Hygienic Guides" or like a 4 toxicological review or like an MSD or what? 5 A Well, they were more like "Hygienic Guides" than like 6 anything else. So far as material safety data sheets are 7 concerned, that's one of the projects all of us had 8 beginning about 1960 or so. We devised our own internal 9 data sheet and then helped fill the darn things out for 10 literally thousands of chemicals. So, that's another thing 11 that I got involved in doing. I was pretty busy. We all 12 were. 13 Q Oh, I don't doubt it. You said that was early '60s? 14 A I believe so. Harold published a paper about what we 15 were doing in the AIHA quarterly or journal about a year or 16 so after we started doing it. So that can be pinpointed 17 rather closely. 18 Q Can you say that these MCA data sheets were available 19 around the time you started with Dow in '53? 20 A I don't remember. I just don't recall. 21 Q Do you recall them as being lengthy or brief? I don't 22 think I have ever seen one, and that's why I am asking. 23 A Yeah. I can understand. It varied depending upon the 24 amount of information available, I should imagine. 25 Q Yeah. 48 1 A But they were generally, as I recall, about four pages, 2 something on that order. That's a vague recollection 3 because it's been a long time since I have looked at one of 4 them. 5 Q Okay. Mr. Adams, would he be deceased by now? 6 A I believe so. It was Dr. Adams. 7 Q Dr. Adams? 8 A Yeah. I'm not sure about that, incidentally; but he 9 was quite a lot older than I, as was Irish and Dunn, the 10 other assistant director. They were all quite a lot older 11 than I was. 12 Q Was Dunn also a doctor? 13 A Yes. 14 Q What was his first name? 15 A Edgar, I believe. Edwin or Edgar. Ed Dunn. Edgar 16 Adams and Ed Dunn. 17 Q Okay. Is there anything -- any other material you can 18 recall that came from or came through the CMA or the MCA 19 besides these data sheets? 20 A No. Incidentally, I hope that I've got that pinpointed 21 and I'm not talking about the things produced by the ASA 22 instead and I could have gotten those two confused. Please 23 don't hold me to that. 24 Q All right, sir. 25 MR. ALMQUIST: Why don't we take a short break 49 1 now. 2 MR. BLANKS: Well, why don't we take a short break 3 now. 4 THE WITNESS: I think that's a good idea. 5 MR. BLANKS: One hour and 8 minutes later. 6 (After the break, the proceedings continued as 7 follows:) 8 Q (By Mr. Blanks) Picking up probably not where we left 9 off, Dr. Peterson, when you do work for Owens-Corning 10 Fiberglass or its attorneys in connection with litigation, 11 what do you charge them? 12 A Oh, I charge everybody the same thing, $300 an hour, 13 except when I travel on nonbusiness hours, for which I 14 charge $150 an hour. 15 Q It's a good thing I didn't have any coffee in my 16 mouth. 17 A One charges what the traffic will bear. 18 Q In the -- in the litigation work you have done in 19 recent years, I'm wondering what kind of projects you have 20 worked on, excluding the Owens-Corning Fiberglass expert 21 testimony, if you could summarize that for me. 22 A I already have. I've talked about working for the 23 welding rod defendant companies and so forth. This is what 24 I have done. I have mentioned I have been employed by 25 attorneys representing plaintiffs a few times; but it's, 50 1 basically, everything in industrial hygiene. Let's see. 2 I've done nonionizing radiation, vibration, noise, various 3 gases, various vapors, various dusts, the whole -- almost 4 the whole area of industrial hygiene. 5 Q Other than some earlier testimony for Owens Illinois 6 and the more frequent testimony for Owens-Corning, have you 7 testified in other -- have you testified in other 8 asbestos-related cases? 9 A Yes. I've testified in a Rapid American case or two. 10 I have testified for an attorney representing Unibestos in a 11 Seattle case; and, yes, there have been others. I've gotten 12 involved in some of the marine litigation but never to the 13 point of testimony. 14 Q "Marine litigation" meaning what? Asbestos disease 15 claims for seamen? 16 A Yes. That kind of thing. 17 Q Have you testified for defendants other than asbestos 18 manufacturers in regard to asbestos claims? 19 A Most certainly. We have the previous edition of this, 20 which is premises liability cases. I got involved in a 21 premises liability case or two in the San Francisco area, 22 never to point of testimony, however. It was investigation 23 and reading and so forth. 24 Q Any other premise-type asbestos cases? 25 A None that comes to mind. Although, there could well 51 1 have been. These are fairly recent that I am talking about. 2 Q Okay. In the past, you can't recall any? 3 A No. 4 Q And, of course, in this case or these cases we are here 5 on today, I mean, you are here, really, as a -- well, what I 6 call a precipitant expert. I mean, you are not a retained 7 expert here for me or at this point for anybody else, that 8 you know of? 9 A That's correct. 10 Q And you are here today really not to give opinions so 11 much as to give us your historical recollection on various 12 things that I am asking you about? 13 A That's my understanding. 14 Q Okay. Have you worked on any silicosis cases? 15 A Yes, but not to the point of testimony. 16 Q Were these for sandblasters? No. Let me -- let me 17 re-put that. 18 Did these silicosis cases involve claims by 19 sandblasters? 20 A No. 21 Q What type of occupational exposure was involved in the 22 cases you worked on? 23 A People handling sand; that is, loading trucks with it 24 and delivering it and so forth, as I recall. 25 Q Have you worked on any foundry cases? 52 1 A At one point in my career, I was hired by Conrail 2 people to work on cases that they had. They were mainly 3 workers' comp cases but there were others and they dealt 4 with various things that one encounters in foundries and 5 machine shops. They dealt with silicosis and coal workers 6 and pneumoconiosis, as well as hearing loss. That was way 7 back in the early '80s, as I recall. 8 Q Back to the case or cases involving people handling 9 sand, were you hired by the defendants in those cases - 10 A Yes. 11 Q -- to ascertain whether or not you thought the 12 claimants had had sufficient exposure to silica from the 13 sand? 14 A It never got that far. I was contacted, asked if I 15 knew anything about silica and silicosis; and I said, 16 "Sure. I'm an industrial hygienist." 17 And they said, "Fine. We'll name you as our expert in 18 this case." 19 And I got a two-minute description of what the case 20 was, and that was the extent of it. It never went any 21 further than that. 22 Q Am I right in thinking that silicosis would have been 23 an occupation disease you learned of very early at -- during 24 your time at Dow? 25 A Oh, yes. 53 1 Q This -- this was an occupational disease that was 2 pretty well known by the time you began your work. Am I 3 right? 4 A Yes. 5 Q Would I be right in saying that silicosis was 6 recognized as a serious occupational disease even back into 7 the -- as far back as the '30s or possibly the '20s in 8 certain trades? 9 A Absolutely. 10 Q Okay. Did -- did you have any occasion to encounter 11 silica hazards at Dow in connection with sandblasting? 12 A I recall doing some air sampling inside a sandblaster's 13 hood and so forth; but whether that was at Dow or shortly 14 after I became a consultant, I just don't remember. It 15 could have been either. 16 Q Would you have any other recollections of Dow and 17 sandblasting? And I don't know whether there was any done 18 there or not, but maybe you will recall. 19 A I'm not sure any was done there either. I'm glad you 20 went that far with your questioning. I -- I just don't have 21 any recollection of where it would have been done, if in 22 fact it was done, because I've done a fair amount of silica 23 evaluations as a consultant; and it kind of all runs 24 together. It's all way back in the past now, and I just 25 don't have any separate recollection of silica at Dow. 54 1 Q Okay. Would I be correct in stating that you 2 certainly, after a couple of years at Dow and a couple of 3 years of training by Mr. Hoyle and self-instruction, that 4 you would have known how to prevent and to limit exposures 5 to silica dust in connection with sandblasting while you 6 were at Dow in 1955? 7 A Yes. This is true. 8 Q And, likewise, are you confident that Mr. Hoyle had the 9 knowledge to deal with any potential silica exposures in 10 connection with sandblasting, had they arisen? 11 A He did. 12 Q Based on your experience and all the training and 13 reading you have done, is it -- is it true that or would you 14 say that it was known how to prevent harmful exposures to 15 silica dust during sandblasting even back in the '40s? 16 A Very probably. 17 Q Did the protective gear that is especially needed for 18 sandblasters, such as the air-fed hoods, exist in the -- in 19 the decades before or, let's say, in the 1940's? 20 A I'm sure they did, yes. 21 Q Okay. 22 A That kind of gear has been around for a long time. 23 When it was first developed, I couldn't tell you. I don't 24 know. 25 Q Okay. How long, approximately, would you say the air 55 1 line respirator has been around? 2 A It was certainly well-known when I got into industrial 3 hygiene; but how much earlier than that, I really don't 4 know. 5 Q You wouldn't be surprised to see it illustrated in 6 textbooks in the '40s or even late '30s, would you? 7 A No, not at all. It's a natural thing to do. So that, 8 gee, you can go back to writings of the ancient Greeks and 9 the early people in industrial hygiene and occupational 10 medicine in England and France and so forth and Germany; and 11 one of the big problems was silica. They recognized this, 12 and they had ways of handling it. 13 They didn't, in general, recognize that people died 14 from the combination of silicosis and tuberculosis; but 15 other than that, silicosis has been known as a problem for 16 occupations for centuries, probably. 17 MR. BEASON: Objection. Nonresponsive. 18 Q (By Mr. Blanks) I wonder what, based on your education 19 and experience, you would say to this question, Doctor: How 20 long has silicosis been recognized as an occupational health 21 hazard in certain trades? 22 A For centuries. 23 Q When you did your sampling inside the hood, wherever it 24 was, was this an air-fed hood? 25 A Oh, yes, definitely. 56 1 Q Do you recall anything more about this activity than 2 that you did it? 3 A No. I really don't. It's -- I have sampled outside of 4 cabinets that people use with gloves that stick into them. 5 I've sampled once, that I recall, where I went to all the 6 trouble of getting the sampler inside an air-fed hood - and 7 that is a very difficult thing to do - to get a good 8 breathing-zone sample inside one of those things. But I 9 think I only did it once, and I don't remember where or just 10 when. 11 Q Do you -- can you get a good result doing that? 12 A Sure. 13 Q I mean, one you have confidence in with all that air 14 moving around in there in the hood? 15 A Yeah, you can, because all you need to do is use the 16 conventional cyclone sampler where you aren't even handling 17 liquids. You don't have to use an impinger or something on 18 this order. And if you can get this thing attached to a 19 guy's collar and then run the tube that's sucking air 20 through it out from under the drapery of the hood that he 21 fastens around his waist, you are all right; but it takes an 22 especially long tube to do this. And if you wind up with a 23 short tube, you can't do it. 24 Q Have you ever given testimony in front of any 25 government entity in connection with your work or your 57 1 profession or professional opinion? 2 A Yes. 3 Q What would the occasion for that have been? 4 A There were two occasions. The first one was a hearing 5 held by the Occupational Safety and Health Administration 6 concerning a regulation of a chemical that's known by an 7 acronym MOCA, M-O-C-A. The chemical is 8 methylene-ortho-chloro-amylene. I was asked to testify 9 about the proposed regulation by an attorney representing a 10 Polyurethane Manufacturers Association. 11 A few years later, OSHA came up with what they called 12 the generic carcinogen standard; and the Polyurethane 13 Manufacturers Association people asked me to testify about 14 that, as well. 15 Q The generic - 16 A Generic carcinogen standard. Trying to write one 17 standard for any and all possible carcinogens. I testified 18 that is absolutely impossible. It cannot be done. 19 Q What came of that proposal? 20 A It vanished. 21 Q All right. Did you ever have anything to do with the 22 National Safety Council? 23 A I wrote chapters in the book that was produced by the 24 National Safety Council entitled "Fundamentals of Industrial 25 Hygiene." When the book was in the process of being finally 58 1 edited, I took my name off two of the chapters and left it 2 on one. 3 Q Why did you do that? 4 A Because the editing was not to my liking. 5 Q When was this published? 6 A Early '80s, perhaps. I don't remember. I didn't work 7 directly for the National Safety Council. The editor of the 8 book was a friend of mine named Julian Olishifski. Your 9 guess is as good as mine how to spell it. And he was a 10 member of the Chicago section of the American Industrial 11 Hygiene Association and asked me to write some chapters: 12 One on heat stress and one on evaluation of exposures and so 13 forth. 14 Q Which were the two chapters you deauthored? 15 A I deauthored the one on heat stress and -- which is the 16 one I wrote from scratch and got put on as an author in the 17 evaluation chapter, which I had very little to do with 18 except that the actual author of it, Dr. Hermann, had 19 cribbed stuff from my book to write the chapter. So, he put 20 me on as an author of it. 21 There was another chapter, too; and I don't even 22 remember what it was that I took my name off. 23 Q Okay. Can you think of any other dealings with NSC? 24 A No. 25 Q You never went to any of their meetings? 59 1 A Once I attended a meeting in Chicago. I -- but that's 2 the full extent of it. I didn't join the group; and I 3 didn't join any of its parts, either. 4 Q Roughly, what -- what time frame would you have gone to 5 that annual meeting? 6 A Oh, probably in the late '70s. 7 Q And am I right in recalling that the NSC publications 8 would have been available in the Dow library, one or more of 9 the libraries? 10 A Oh, certainly. Probably at the safety department. I 11 don't think we had any of them in the industrial hygiene 12 group. 13 Q Okay. Do you -- can you think of anybody else that you 14 worked with at Dow who would have been a member of the 15 National Safety Council? 16 A No. Just the safety people that we had. Probably all 17 were members, so far as I know. I never asked them. 18 Q Did you ever attend any American Public Health 19 Association functions? 20 A No. 21 Q You never belonged to that, either? 22 A Never belonged to it. 23 Q Did you ever get any of their publications? 24 A Well, I've -- no. I never subscribed or purchased any 25 of their publications, no. 60 1 Q Okay. 2 A I have run across papers -3 Q Sure. 4 A -- published in the APH Journal, but that's the extent 5 of it. 6 Q That's the name of their periodical, the "American 7 Public Health Journal," as you remember it? 8 A "APHA Journal," probably. I don't remember. I don't 9 put much stock in the stuff they publish. So, I don't 10 ordinarily collect that kind of stuff. 11 Q Well, why do you say that? 12 A The papers that I have read in -- that appear in that 13 journal appear to me to be, generally, more political than 14 scientific. So, I just ignore them. 15 Q Do I recall correctly that somewhere along the way you 16 became involved with the ACGIH? 17 A I joined the ACGIH in the mid '80s when I was teaching 18 at the University of Wisconsin Parkside campus. Then, I 19 remained a member for two or three years, until all of a 20 sudden it was realized by ACGIH that I was no longer 21 teaching full-time; and I was demembered. 22 Q Dismembered? 23 A Dismembered. A couple of years later, they established 24 the category of affiliate member; and then, I joined, mainly 25 because then I would get the TLV booklet automatically and 61 1 so forth. 2 Q Okay. And were you ever on the TLV committee of the 3 ACGIH? 4 A No. 5 Q So, if I asked you how that committee worked over the 6 years, you really wouldn't have any direct personal 7 knowledge of that, would you? 8 A No. Just it would all be hearsay and stuff that I have 9 read and talked about. I know Herb -- Herb Stockinger quite 10 well, for instance. 11 Q Yes, sir. 12 A And I have talked to him about what goes on at the TLV 13 committee meetings, how they operate and so forth; and he 14 has written about this and I have read the stuff that he has 15 written. 16 Q How far back does Mr. Stockinger go? 17 A Dr. Stockinger goes way back. He is older than I. He 18 ran the toxicology group for the US Public Health Service; 19 and then, when NIOSH took over that kind of activity, he ran 20 that group for them, as well. He was chairman of the TLV 21 committee for a few years, a member for many more. 22 Q Is he still around? 23 A So far as I know. 24 Q Where in the world would we find him? Do you have any 25 idea? 62 1 A I would look in Cincinnati. I think that's where he 2 made his home. Either that or look for places that sell an 3 awful lot of the red hot sauce. What a crime. He put it on 4 everything. 5 Q Okay. 6 A NIOSH people may know where Herb is, if he is around. 7 Q Did you meet him early on in your Dow years, or did 8 this come much later? 9 A Oh, it was early on. 10 Q That you would have encounter him, what, at AIHA 11 activities? 12 A Yes. That's correct. 13 Q And I guess you wouldn't know whether anybody at Dow 14 ever had any direct input into a particular TLV or not at 15 any time, would you? 16 A No. 17 Q I wonder if you ever encountered the Texas Chemical 18 Council? 19 A No. 20 Q How about the National Petroleum Refiners Association? 21 A No. 22 Q How about the Permian Basin Landman's Association? 23 A What? No. I have never even heard of them. 24 Q It's not. I made it up. 25 A Oh, okay. 63 1 Q Let me, as we are moving very rapidly through the 2 material here, ask you about any contacts you remember with 3 the State Health Department in Michigan while you were at 4 Dow. 5 A Yes. 6 Q And I'm assuming there was one? 7 A There was one. All the time I was an industrial 8 hygienist at Dow, there was. 9 Q Now, Michigan was actually -- would have been one of 10 the first states to develop an industrial hygiene department 11 in the State Health Department, wasn't it? 12 A That's correct. 13 Q And I guess because of the automotive industry and the 14 other industries that were tied to it? I mean, like - 15 A Well, Michigan is an industrial state. So that's the 16 reason for the development of industrial hygiene there. 17 Q Can you tell me a little bit about the State Health 18 Department and how it related to whatever you all were doing 19 at Dow? 20 A The representative of the industrial hygiene group who 21 had Dow as part of his territory was a gentleman by the name 22 of Russell Scovill. Russell would show up at the biochem 23 lab about every six months and would -- we would all get 24 together and talk. He was there, mainly, to find out what 25 was new in industrial hygiene from us. He never took a 64 1 plant tour, never went out of the biochem lab, so far as I'm 2 aware. 3 Q Okay. 4 A He eventually wound up on the TLV committee, 5 incidentally. 6 Q I gather that it would not have been the practice in 7 the '50s or up to the mid '60s, while you were at Dow, for 8 the Michigan State Health Department to come in and make an 9 inspection of the Dow plant? 10 A We always offered that to Russ, if he wanted to do so; 11 but he was using us as a resource. He wasn't about to come 12 by and second-guess us for what we were doing. 13 Q Well, I wasn't suggesting anything sinister or 14 otherwise; but do you know whether or not the State Health 15 Department even had the power or the authority during those 16 years to enter a plant and make an inspection without the 17 consent of the plant owner? 18 A I don't know that for sure, but I doubt if they did. 19 Q Yeah. I mean, in your experience, that probably would 20 have been the case, then, with many, if not most, of the 21 states during the pre-OSHA period, correct? 22 A Yes. That's, in fact, one of the reasons for the 23 development of OSHA. 24 Q I am -- I gather, correct me if I am wrong, that this 25 was one of the legal facts that handicapped the US Public 65 1 Health Service from perhaps doing more extensive work in 2 investigating occupational health hazards in the decades 3 before OSHA? 4 A Well, that could well be. However, I never talked to 5 anybody who was in the Public Health Service at that time 6 that looked upon it as a handicap because mostly when they 7 wanted to go in someplace, they'd just simply go and ask to 8 go in; and they were usually invited in, in my circles, 9 anyway. 10 Q Oh, okay. Okay. Did you do any work at Dow that you 11 know became part of an epidemiology study? 12 A Epidemiology studies were done at Dow. Whether any of 13 the work that I did became part of them, I'm not positive. 14 I certainly had no input into the writing of such reports. 15 But I did a lot of sampling hither, thither, and yon and, in 16 fact, developed, along with a guy from the physical research 17 laboratory, a device that enabled us to sample automatically 18 from several different places in a plant and I believe that 19 that kind of data were incorporated in a paper, an 20 epidemiological paper, but I had nothing to do with it. 21 That's as close as I came to the sort of thing you are 22 talking about. 23 Q Okay. Do you know if Dow ever did a or had done an 24 epidemiology study about the health of its plant workers or 25 retirees? 66 1 A They have done -- they have done several. 2 Q How far back in time do you place these epistudies? 3 A Well, there are two portions to that. One is when the 4 people work there. That is when the exposures existed and 5 when they were analyzed, so far as looking at other 6 employees and so forth. 7 We did a study of hearing loss in people, which is sort 8 of an epidemiological study; and I had a little hand in 9 that, incidentally. 10 I know that the Dow medical department did a study of 11 people who had been exposed to arsenical insecticides 12 manufactured at Dow and, in fact, were instrumental in 13 showing that arsenic was a carcinogen. 14 I know they have done epidemiological studies of people 15 exposed to benzene and a few other compounds, but I had 16 nothing to do with these. I just know it's been done. They 17 have been published. When, I couldn't tell you. 18 Q Okay. Okay. Would you say that in that 12-year period 19 you were at Dow that you had sufficient staff to do the 20 necessary industrial hygiene work? 21 A Never. There was always far more work than we could 22 handle, and we kept looking for other people to join our 23 group. The group expanded to the point where it is several 24 tens of people now. 25 Q Were there any other large companies that were in your 67 1 vicinity, chemical companies or petroleum companies with 2 whom you had dealings while a Dow employee? 3 A Well, there weren't any chemical or petroleum companies 4 nearby physically. At the annual meetings of AIHA, I met 5 people from DuPont and Carbide and Westinghouse and Shell 6 and Exxon and so forth; but we didn't have any direct work 7 with these people. 8 Q Did you ever have occasion to visit the plants of any 9 of these gentlemen that you met from other petro or chemical 10 companies? 11 A I have visited several petrochemical company plants, 12 but it's been not in conjunction with my acquaintanceship 13 with industrial hygienists who work there. It's all been 14 litigation, really. 15 Q As an expert for the company whose plant you were 16 visiting? 17 A Not necessarily. Not necessarily. I visited a couple 18 of plants at the behest of Owens-Corning Fiberglass 19 attorneys, for instance. 20 Q Okay. Do you remember any folks from DuPont that you 21 became acquainted with at your annual meetings and 22 professional activities? 23 A Yes. I knew John Zapp before we died and Dorothy Hood 24 was his right-hand person and Dorothy was on a group of us 25 or in a group of us who went to China together and I got to 68 1 know Dorothy fairly well on that trip. 2 Q Anybody else? 3 A Those are the only ones at DuPont that I recall. 4 Q Okay. 5 A They had a different organization. They didn't do 6 things centrally. Their people were scattered all over the 7 place, and we very seldom saw them anywhere. 8 Q Did you ever go to the Haskell Lab in Delaware? 9 A No. I know of the Haskell Lab and I have been in 10 Bloomington but I haven't been to the Haskell Lab. 11 Q Okay. Who do you remember meeting from Exxon? 12 A The person I knew best is Dick Brief. I got to know 13 him well because he and I were both doing ventilation work, 14 laboratory hood work and so forth and publishing papers. 15 Gee, who else do I know at Exxon? 16 Q Well, you've mentioned Jim Hammond? 17 A I know Jim Hammond. He was in Texas. Dick is in New 18 Jersey. 19 Q How about Van -- excuse me. 20 A Huh? 21 Q How about Van Hendricks? 22 A I don't think I ever met Van Hendricks. I met people 23 who worked for Dick Brief in New Jersey. I was there on a 24 project as a consultant doing a walk-through of various 25 places and met several of the people there. I don't 69 1 remember their names right offhand. 2 Q Okay. How about Shell people? 3 A The person I knew best at Shell, the first one I knew 4 was Norm White. Norm was their toxicologist and I kibitzed 5 a poker game at the first AIHA meeting I went to in 1956 6 when Harold Hoyle and V.K. Rowe and Norm White and perhaps a 7 couple of other fellows were playing poker and I was not 8 enough of a poker player to join with them and, besides, I 9 knew better than to stick my head in a nest of alligators. 10 They were good. So, I've -- I've known Norm ever since 11 then, until he died. I got -- I haven't met him since. 12 Howard Kuznutz was the more or less replacement for 13 Norm. He was hired from NIOSH by Shell, and Howard has 14 become one of my best friends. 15 Q Is he still down in the Texas area? 16 A Yeah. He is in Houston. 17 Q Maybe we'll get to visit with him soon. 18 A Good. 19 Q I'll give him your regards. 20 A Please do. 21 Q Has Norm White died? 22 A I think so, yes. He was quite a bit older than I, but 23 I don't know. I know he retired from Shell and I think he 24 was sick at the time but I just don't know. 25 Q Huh. Okay. Let's see. Did you ever make the 70 1 acquaintance of Dr. Skeepers along the way? 2 A No. I never met him. I have crossed swords with him a 3 couple of times but it's been by correspondence and in 4 litigation but I never met the gentleman. 5 Q How about Bill Hazard? 6 A Oh, yes. I knew Bill Hazard quite well. 7 Q And this was from your professional work? 8 A Yes. I met him at one of the AIHA meetings. I was 9 introduced to him by probably Harold Hoyle or V.K. or one of 10 the other people from Dow and followed his career from then 11 on. 12 Q What was Mr. Hazard's reputation in your professional 13 field? 14 A Oh, great. Very good. Good man. 15 Q You say you crossed swords with Dr. Skeepers. What - 16 what were the topics of your disagreement? 17 A One was a lawsuit in New Jersey, I believe, where a 18 gentleman had died of a lung cancer. Dr. Skeepers on the 19 basis, apparently, of one of the medical reports called it 20 mesothelioma. The toxicologist -- not the toxicologist, the 21 pathologist, on the other hand, said it was adenoma 22 carcinoma; and I wrote a report saying so. And then, he 23 changed his report because of what I wrote and, in fact, 24 changed his report a third time before the trial. 25 Q Okay. Do you regard yourself as a toxicologist? 71 1 A Sure. 2 Q Just so I'll have a clear picture, what do you do to 3 become trained as a toxicologist other than this -- after 4 that six months or a year stint in the Dow lab? 5 A The toxicology that I have done has all been in 6 conjunction with either animals or people breathing things 7 and analyzing the results. When I worked at the Medical 8 College of Wisconsin after leaving Dow and getting my Ph.D, 9 all the work I did there was as a human inhalation 10 toxicologist. 11 Q You mean, you were using humans to do your experiments? 12 A Yeah. 13 Q These were just, what, for irritants? 14 A No. We did a lot of work with carbon monoxide. Most 15 of the work that we did to the humans involved were with 16 staff. I was one of those that was exposed, but mostly my 17 job was to expose others. Again, on the staff, until we 18 needed more volunteers; and we got -- we hired people to act 19 as volunteers for exposures. And then, we got a contract 20 with NIOSH through Herb Stockinger to do the human 21 inhalation toxicology on a group of 12 solvents; and we 22 spent about three years working on that project and never 23 did complete it, incidentally, and lost our contract. 24 Q It's a good thing. Well, when you are doing that, what 25 do you do? Do you expose people to known concentrations; 72 1 and then, you do blood sampling and urinalysis and such as 2 that? 3 A And such and such and such, yeah. 4 Q Okay. 5 A Basically, we were looking for behavioral changes, 6 trying to see if we could determine results of exposure 7 without invasive techniques. We did breath analysis. We 8 did blood analysis, urinalysis, and then, all sorts of tests 9 of the people. They were always exposed at or below the 10 threshold limit value. 11 Q You didn't lose anybody, did you? 12 A No, not by a long shot. 13 Q Okay. You haven't done any follow-up on them now to 14 see what's happened since your experiment, have you? 15 A I'm -- I'm one of the people who was exposed, sir. 16 Q Well, it kind of speaks for itself then. 17 A It sure does. All of my deficits result from that. 18 Q Let's jump back a second to the folks you knew from 19 other companies. I think I heard you say Carbide was a 20 company whose scientists or hygienists you encountered. Do 21 you remember specifically any folks from Carbide? 22 A No, I don't. 23 Q Well, certainly, they are more memorable than that? 24 A None come to mind at the moment. 25 Q How about -- how about Newt Ketcham? Do you remember 73 1 him? 2 A No. I don't think I met Newt. Oh, wait a minute. Who 3 was it from Carbide that I knew? Newt? No. It wasn't a 4 Newt. 5 Q There was a Newell Bolton? 6 A Newell Bolton. I knew a Newell Bolton, yes. He was 7 from Carbide. Oh, gee, there were a couple of other guys 8 whose names escape me. 9 Q Bob Peele? 10 A No. Never met Peele. 11 Q Ketcham was trained at Harvard under Drinker about the 12 time you started at Dow, if I remember right. It don't ring 13 a bell? 14 A No. It doesn't ring a bell at all. 15 Q Okay. 16 A Newell Bolton, that's it. Newell Bolton not Newt. 17 Newell Bolton, yeah. 18 Q Well, it was Newt Ketcham - 19 A Yeah. 20 Q -- and Newell Bolton? 21 A And Newell Bolton, yes. 22 Q All right. 23 A I didn't know Ketcham. I know Newell quite well. 24 Q I think he went on up to the top headquarters. 25 A Pretty much. 74 1 Q Now Hilton Head? 2 A Yes. He is at Hilton Head, as I recall. 3 Q Okay. Along the way in your education and training, 4 did you acquire any foreign languages? 5 A Yes. 6 Q Which ones? 7 A I, at one time, could read French and German with some 8 facility. 9 Q There was a sneeze there. You said you could read 10 French and German? 11 A Yes. 12 Q This was the requirement; and I propose the acquired 13 ability to deal in a foreign language was not unusual in a 14 technical education in the years you went to school, was it? 15 A No. It was not at all unusual. I actually started 16 with German and Spanish in high school, as I recall. 17 Spanish in high school. German in college. And then, when 18 I was working on my Ph.D, I took a couple of four hour 19 courses in reading scientific German; and, along with my 20 best friend at college, we taught each other how to read 21 French. 22 Q That's impressive. While you were at Dow, could you 23 point to any individuals who were responsible for kind of 24 staying current on the literature in the industrial hygiene 25 field? 75 1 A All of us in the industrial hygiene group had that 2 responsibility. 3 Q Okay. And was it the case that all of you in the 4 industrial hygiene group lived up to that responsibility? 5 A We did our best. Those of us who had specific areas of 6 expertise, for instance, Mr. Schneider, Ed Schneider, was 7 our noise expert; and he read far more noise literature than 8 I did. But I tried to keep up, as he did, and we had 9 meetings and in these meetings we discussed what was going 10 on. 11 Q So, one benefit of the meetings was exchanging 12 information that you might have had a particular interest in 13 that somebody else's specialty wouldn't cover? 14 A Yes. Well, for instance, I was doing this work on 15 laboratory hood ventilation and I kept the group abreast of 16 not only what I was doing but what Mr. Brief and others were 17 doing in that area. 18 Q Okay. And so, there was a bit of, what shall we say, 19 cross-pollination occurring between you guys as topics of 20 interest were read about? 21 A Oh, yes, always. We had another input to that in that 22 monthly the heads of industrial hygiene, safety, and medical 23 would meet; and we would get input through Mr. Hoyle from 24 that meeting. And, occasionally, we would be invited to the 25 meeting to talk to the group there about what we were doing 76 1 or what we knew was happening or whatever. 2 Q Okay. So, not only was this something that you 3 gentlemen in the Dow, what, biochemical? 4 A Well, it would be the industrial hygiene group of the 5 biochemical lab. We didn't meet with the toxicologists or 6 with the organic chemists or the wood preservative people or 7 whatever. We just met within our own group there. 8 Q Okay. Well, within your own groups not only -- within 9 your own group, not only did you industrial hygienists as a 10 matter of just professional interest share new knowledge but 11 it was -- it was actually built into the job that you would 12 do so because there were routine or periodic meetings for 13 that purpose? 14 A Yes. 15 Q Is that right? 16 A That is correct. 17 Q And I gather where you said there were monthly meetings 18 between the department heads of industrial hygiene, safety, 19 and medicine for the sharing of information that this, too, 20 was institutionalized at the level above you? 21 A It was. 22 Q So that it really wasn't something that was left to 23 chance at Dow, I believe? 24 A No chance at all. It was a monthly thing that 25 everybody -- they did every month without fail. They had 77 1 lunch over at the medical department and had a meeting. 2 Q Did -- did the medical department report to industrial 3 hygiene at Dow while you were there instances of suspected 4 occupational disease in the workers in the plants? 5 A Absolutely. The one sampling I did for asbestos 6 evaluating exposure there was at the behest of the medical 7 department. 8 Q And then, I am remembering that the doctor had had some 9 reason to be concerned about the particular man or men 10 involved in that work? 11 A No. The gentleman was ill, and the physician wanted to 12 rule out occupational exposure and couldn't do that without 13 a knowledge of what those exposures were and so asked me to 14 -- well, asked the industrial hygiene group; and I was the 15 one picked to go over and do the work. 16 Q I believe you said that your best memory of that was 17 that you did that monitoring in the vinyl asbestos floor 18 tile project area in 1958. Is that - 19 A That's what I said, yes. Since that time, I have 20 forgotten the date; and it was recalled to me when I read 21 the transcript of the previous portion of this deposition. 22 Q Is that still a good date? 23 A Yes. I think so. 24 Q Okay. Was that a survey that a written report would 25 have been made on? 78 1 A Yes. 2 Q And would that report have your name on it? 3 A Yes. 4 Q Were you provided or shown a copy of that report? 5 A Duncan Stewart showed me a copy of that prior to our 6 previous meeting and then retrieved it from my hands, and I 7 haven't seen it since. 8 Q Oh. I wonder if Mr. Almquist would have a copy of it 9 at this time because - 10 MR. ALMQUIST: We're coming up on our lunch break, 11 and I'll check and see. 12 Q (By Mr. Blanks) I confess. I have not -- I don't 13 think I've seen it. Well, now, Dr. Peterson, do you -- do 14 you appreciate that there has been sampling or monitoring - 15 what do we call it? Do we call it sampling or shall we call 16 it monitoring? 17 A Air sampling is a much more limited thing than 18 monitoring. Monitoring is following an exposure over an 19 extended period of time, generally, using air sampling 20 techniques. So, -21 Q Okay. So, here we would be talking about sampling? 22 A Yes. 23 Q All right. 24 A This was sampling one or two days, no more than that. 25 Q Do you appreciate that there had been sampling done in 79 1 this work area at Dow earlier than your 1958 effort? 2 A Yes. I believe Mr. Schneider was the one who went over 3 and did the work. 4 Q This would have been maybe on the third floor of 5 Building 433? 6 A Yes, sir. Absolutely. Plastics technical service. 7 Q Okay. Who was Mr. Johann? Do you remember that name? 8 A Stan Johann was an engineer that we hired who worked 9 with our group for a short period of time and then left. 10 Q Did you have the benefit of his report from 1955 when 11 you went in 1958 to sample again that area? 12 A I don't have any independent memory of that. So, I 13 can't answer your question. I don't know. 14 Q Was the - 15 A I would say probably, but I don't know. 16 Q Was the routine or the procedure at Dow for you to go 17 and look at reports of prior sampling efforts before you 18 would go out and do a new one? 19 A Generally, yes. 20 Q Was it the case that these reports of sampling were 21 kept in the files in your department there at Dow? 22 A They were. 23 Q How were they organized? 24 A That's a good question. 25 Q Thank you. 80 1 A You are welcome. 2 Q I've been trying all morning to get a good question 3 out. 4 A I knew you would get there sometime. 5 MR. JONES: He had more confidence in you than we 6 did. 7 MR. BLANKS: Somebody is supposed to object now. 8 A We had two ways of getting to reports. One was by 9 building, if I remember correctly. And then, we had another 10 outside index that was a very peculiar kind of filing system 11 that had a tabbed card for this kind of work that we did; 12 and we could trace something down that way. But beyond 13 knowing that there were these two things, I can't give you 14 any further details. I just don't remember. 15 MR. FLATTEN: I think that is Art's stomach. 16 MR. BLANKS: Lord have mercy. Did you pay extra 17 to get this? 18 MR. ALMQUIST: I had nothing to do with the 19 arrangements, Mr. Blanks. That was strictly your doing. 20 Q (By Mr. Blanks) In 1950 -- gee. In 1955, as best you 21 remember it, what would have been the sampling device that 22 should have been used at Dow to sample for asbestos in the 23 air in Building 433? 24 A It depends. What I used was a membrane filter method; 25 and I did this deliberately, knowing that the midget 81 1 impinger was the method of choice. I had taken too many 2 samples with the midget impinger and spoiled them. It's a 3 very difficult procedure to use. So, I used the membrane 4 filter; and I realized that the membrane filter is a far 5 more efficient method of picking up particles and fibers 6 than was the midget impinger. And, therefore, it was a 7 conservative method. I used that, had it analyzed at the 8 analytical lab, and reported what my results were. 9 Q But you jumped right around my question. What - 10 A What method should I have used? 11 Q No. No. No. In 1955, - 12 A Uh-huh. 13 Q -- when Mr. Johann made a survey of Building 433, what 14 device would have been available to use? 15 A Available? Midget impinger, electrostatic 16 precipitator, cascade impactor, AISI tape sampler, filter 17 paper sampler. I don't know whether the membranes - 18 membrane filters were developed by then or not. It was 19 about that period of time that the mixed cellulose ester 20 membrane filter appeared on the market. So that would have 21 been another thing he could have used. There were others, 22 too. We had, oh, perhaps a dozen different ways of sampling 23 the air for particulate material. 24 Q But to get a sample that you could compare against the 25 TLV, what would you have had to use? 82 1 A The best way of doing that would have been to use the 2 midget impinger because that is the method that Dreessen and 3 his bunch used to gather the data that eventually became the 4 TLV. 5 Q I'm out of tape. 6 A Oh. 7 Q You may have run - 8 A You will just have to rely on your memory then. 9 Q -- 30 seconds or 11 seconds. 10 MR. ALMQUIST: This will probably a good lunch 11 break. 12 MR. BLANKS: Do we get to stop for lunch? 13 MR. ALMQUIST: Yeah, we do. 14 MR. BLANKS: Okay. 15 THE WITNESS: Absolutely. 16 MR. BLANKS: Are you taking us to lunch? I'm 17 taking you to lunch? 18 (After the lunch break, the proceedings continued 19 as follows:) 20 Q (By Mr. Blanks) Okay. Dr. Peterson, we've returned 21 from lunch; and I think we were talking about using the 22 midget impinger to sample for compliance with the TLV 23 standards because the midget impinger was the method used to 24 do the sampling that the TLV standards were based upon. 25 A That's correct. 83 1 Q Okay. And that's the way Mr. Hoyle taught you or you 2 read it or both when you started early with Dow, right? 3 A Sure. That's right. 4 Q And am I right in remembering that while at Dow you did 5 not use a midget impinger, ever, to sample for asbestos in 6 air? 7 A That's correct. 8 Q And you did use a membrane filter to sample for 9 asbestos in air in 1958, you said? 10 A Yes. 11 Q Now, are you really pretty sure about that date and 12 that method? 13 A I'm sure about the method. The date is being quoted by 14 me today after reading the previous transcript of this. I 15 don't have an independent recollection of the year. I'm 16 sorry. 17 Q I was just -- I'm not arguing with you but just 18 thinking that that might be a few years early for the 19 membrane filter method. I don't know. 20 A I don't think so. No. 21 Q You don't think so? 22 A Millipore Filter had come out with their filter 23 sometime in the late '50s and I don't recall exactly when 24 but we were right on that technology and using it as soon as 25 the technology was available. 84 1 Q And you also mentioned using a Bausch and Lomb dust 2 counter somewhere along the way as one of the devices that 3 would have been in the arsenal back in the early '50s. 4 A We had at least one, maybe more, B&L dust counters, 5 yes. 6 Q And that device gave you, like, kind of a quick and 7 dirty sampling tool. Would that be fair? 8 A It's certainly quick. So far as being dirty is 9 concerned, it is more conservative than the impinger because 10 the illumination used to examine the particles is dark field 11 rather than light field; and with dark-field illumination, 12 one can see a lot more particles than one can see with 13 light-field illumination. 14 Q But the B&L dust counter was not really the right 15 device to use if you were going to be sampling against the 16 TLV standard, correct? 17 A That's correct. It wasn't; but it was the one used, 18 for instance, by Fleischer and Drinker and Hugh in 1946 and 19 they knew that as well. But it's handy. It's quick, and 20 you -- it does not require a transfer of liquids in the 21 field. It's a nifty device. I used it several times at Dow 22 but never for asbestos. 23 Q When was it, as best you understand, that Dow began to 24 collect information on incidents of occupational disease in 25 its own work force? 85 1 A I can't answer the question. I don't know. 2 Q Was this being done when you came to the company in the 3 early '50s, as you recall? 4 A So far as I'm aware, it was. 5 Q Do you know, Dr. Peterson, if any of your colleagues at 6 Dow attended the -- that late 1964 symposium in New York 7 that was held at Mount Sinai on asbestos? 8 A I don't know. 9 Q You never heard? 10 A So far as I'm aware, none of our crew went there. 11 However, a toxicologist could have gone. I wouldn't have 12 been aware of it. 13 Q All right. 14 A But none of the industrial hygiene crew attended. 15 Q In any event, you would have had the proceedings 16 available in publications whenever they appeared in print 17 from the Mount Sinai and Dr. Selikoff symposium, right? 18 A Yes. 19 Q Mr. Almquist has handed me a document that looks like 20 it was Exhibit No. 3 in Mr. Hoyle's deposition from three or 21 four years ago. It's dated January 22nd, '58, and 22 apparently by a J.E. Peterson. Let me hand that over and 23 see if you recognize that as the report that you talked 24 about earlier on the asbestos sampling at Dow? 25 A It is. 86 1 MR. BLANKS: With your consent, Mr. Almquist, I'm 2 going to make a copy of this and attach this to the 3 deposition as Exhibit 580122 capital DOWC. 4 MR. ALMQUIST: You have my permission. You do 5 have a copy of it already, I'm sure, in the exhibits to 6 Mr. Hoyle's deposition. 7 MR. BLANKS: Somewhere. Somewhere, but I didn't 8 bring all of Mr. Hoyle with me, unfortunately. So, we'll 9 make a copy and provide that to the reporter. 10 MR. ALMQUIST: Sure. You've identified what that 11 is? 12 THE WITNESS: Yeah. Yeah. 13 MR. ALMQUIST: I don't want my copy to get away 14 from me. 15 MR. BLANKS: No. I -- I understand. That's why I 16 keep pulling it away from you. 17 (Marked Exhibit No. 580122 DOWC and is attached 18 hereto.) 19 Q (By Mr. Blanks) Just out of curiosity, is there a 20 place in the report where we would likely read about the 21 methodology you used? 22 A Sure. There -- there must be. That's the way -- I 23 always did it that way. 24 Q Okay. You'll recognize the format better than I. So, 25 perhaps you could look. 87 1 A Oh, for goodness sake. I used the B&L dust counting 2 microscope - how do you like that? - and electrostatic 3 precipitator. 4 Q Well, I really wasn't trying to lay a trap here for you 5 because I - 6 A Well, that's fine. 7 Q I don't remember having seen this thing before. 8 Although, I'm sure I did somewhere. 9 A Apparently, I used the B&L dust counter and an 10 electrostatic precipitator in the analysis. I thought it 11 was a membrane filter. 12 Q Well, I understand. So, it's possible, then, the 13 membrane filters came out a little after this 1958? 14 A It certainly is possible. Now, you also asked if I had 15 seen Stan Johann's report; and I mention it in this report 16 that I had seen it. 17 Q Oh, okay. Now, I had the impression, perhaps wrong, 18 that this Bausch and Lomb dust counter device had a 19 magnifier built into it. Am I wrong about that it? 20 A It is a magnifier. The B&L dust counter consists of, 21 actually, about three different pieces, all in one 22 apparatus. It only weighed about two or three pounds. 23 There was a tube that was about three-quarters of an inch in 24 diameter and about six inches long that one would put some 25 wet blotting paper in. 88 1 And then, using a squeeze bulb, one would suck air into 2 that tube and let it sit there for a few seconds until the 3 air became saturated with water vapor. And then, you pulled 4 a plunger, either halfway out, it was marked, or all the way 5 to determine the amount of air that was being sampled. 6 The air that was being sampled went through a slot. 7 And when it got through the slot, it expanded; and the 8 expansion cooled the air. And because everything was cool, 9 the water vapor condensed on all of the particles there. 10 Just beneath that slot was a microscope slide that could be 11 rotated to contain, I think, about 32 samples, if I remember 12 correctly. 13 That was the sampling that was done. So, you could 14 squeeze the squeeze bulb, get a sample in there. The 15 squeeze bulb flushed this tube. It didn't do anything else, 16 just flushed the tube with air, and you'd squeeze it a few 17 times, take a sample, and you were ready to take another 18 sample a minute later, if you wanted to do it that way. 19 Later, one would use the built-in microscope, which was 20 a dark-field microscope with dark-field illumination built 21 in so that the particles appeared in a line because they 22 were beneath this slot in the apparatus and were separated 23 and appeared like stars in a dark sky. And that's the 24 so-called dark-field illumination. So that you could see 25 many more and much smaller particles than you could with the 89 1 light-field illumination used on midget impinger samples. 2 Q And was this about a -- okay. That is the most clear 3 picture I have heard of that device. Thank you. 4 A Good. You are entirely welcome. 5 Q Did -- what, was there some sort of a sticky medium on 6 the slides to catch these particles to hold them there like 7 a Vaseline? 8 A Some people used that, used Vaseline. We never did. 9 The thing is, the particles were wet; and they stuck to the 10 slide because they were wet when they hit. And then, the 11 water would evaporate and leave the particle. 12 Q Would the -- was the magnification, what, on the order 13 of about 100 power? 14 A I don't recall the magnification. 15 Q Okay. Do you remember using at Dow the textbook 16 "Industrial Hygiene" edited by Lanza and Goldberg, per 17 chance, from about 1939? 18 A I don't believe so. I don't think I have seen that. 19 Q How about a text called "Industrial Toxicology"? Does 20 that ring a bell? 21 A Fairhall, yes. 22 Q That's one you all would have had there? 23 A Yes. 24 Q I think you said that earlier. 25 A Yes. We did have Fairhall's text. In fact, we had two 90 1 or three copies of it, at least. 2 Q And Drinker and Hatch's "Industrial Dust" from '36? 3 A When that -- yes. When that came out, we -- we had a 4 copy. I'm -- I'm sure that I read it from cover to cover, 5 but I don't recall anything about it. 6 Q Okay. I'm thinking that the first edition was 1936. 7 A That could be. That was not the edition that I read. 8 It was a later edition. 9 Q How about the text "Silicosis and Asbestosis" by Lanza 10 from right before the war? 11 A I don't think so. 12 Q You don't remember seeing that one? 13 A No, I don't. 14 Q In any event, you don't have any of these in your 15 personal library now, do you? 16 A I do not. 17 Q Do you recall any time when it was the practice at Dow 18 to use contractors to do the dustier work in the plants, 19 sir? 20 A We had contractors in the plant, but they weren't hired 21 to do the dustier work. They were hired to do work that 22 just didn't fit into the work schedule of the crews that we 23 had around. 24 For instance, I recall one circumstance where a carbon 25 tetrachloride producing plant was torn down. We didn't have 91 1 people that did that kind of work. So, a contractor came in 2 and did it. 3 So, there were -- there were lots of things that 4 contractors did, but it wasn't simply because the work was 5 dusty. It was because that was what contractors did. 6 Q Do you recollect that Dow had insulators among its 7 employees or that Dow had employees who did insulation work? 8 A I have no such recollection. It could be. It could 9 not be. I just don't know. 10 Q All right. Do you understand that Dow was one of the 11 first US companies that actually had its own toxicology 12 laboratory and tox department? 13 A Yes. This is true. 14 Q Can you tell us what the other early ones would have 15 been? 16 A DuPont certainly established the Haskell Lab around the 17 same time that Dow did. I know that others followed. I 18 know that Monsanto didn't. I think Carbide had a group 19 doing some work, but I wasn't very familiar with their 20 toxicology group and when it started and so forth. 21 Q I think that the testimony we've had from others was 22 that Carbide was relying on an outside lab in the Pittsburgh 23 area for special projects maybe run by a Dr. Henry Smith? 24 A In fact, that's right. The Mellon Institute Lab, 25 that's correct. 92 1 Q Back to contractors a second. Did the Dow industrial 2 hygiene program that you worked in, '53 to '65, concern 3 itself with contractors in the Dow plants? 4 A Sure. 5 Q And as a practical matter, what did that amount to, in 6 general terms? 7 A I recall and I told you about this demolition of the 8 carbon tet plant that took place. I was assigned to go 9 visit the demolition site and to make sure that people were 10 not doing things in variance with the Dow policy. 11 Before going out into the site and wandering around and 12 watching people work, I talked with the contractors as a 13 group; and, basically, I wanted to warn them that they were 14 likely to encounter some hydrogen sulfide in the plant. 15 They knew far more about hydrogen sulfide than I did. So, I 16 learned more about the acute effects of hydrogen sulfide 17 from those people; and they impressed me sufficiently that I 18 didn't bother them about it. They knew what they were 19 doing. 20 Q And did I understand from the things you said that Dow 21 was also requiring the contractors to, basically, follow the 22 same safety and safety rules as the Dow employees did? 23 A Yes, that's correct. 24 Q And would I be right that the safety department at Dow 25 would have been the ones to, generally, to -- to enforce 93 1 that requirement? 2 A That's correct. 3 Q Would you recollect any occasions when you had to go do 4 any sampling of work areas for contractors or not? 5 A I don't recall, specifically, any air sampling that I 6 did where contractors were working; but I did an awful lot 7 of air sampling in some that could well have been under such 8 circumstances. It was nothing special at the time. So, I 9 didn't worry about it. 10 Q You did mention one of your projects being concerned 11 with ventilation and vent hoods that you observed while you 12 were doing your plant inventory. Do you recollect that you 13 encountered any exhaust ventilation in fabricating shops 14 where thermal insulation was being handled with that? 15 A No. I don't recall any fabricating shops. Let's put 16 it that way. 17 Q Okay. It may have been there, maybe not, maybe you had 18 ventilation, maybe you didn't? 19 A Yes. I don't recall a fabrication shop there. I 20 recall other fabrication shops but not Dow. 21 Q Okay. Well, as a general proposition, based on the 22 state-of-the-art in the 19 -- early 1950's, would the use of 23 mechanical ventilation in an insulation fabricating shop be 24 a not only sensible but probably necessary engineering 25 control for dust? 94 1 A Sure. Absolutely. I mean, this is mentioned in the 2 Fleischer and Drinker paper that the Navy people spent a lot 3 of time, effort, and energy trying to devise ways of 4 handling these materials safely; and I don't see any reason 5 why others couldn't have done so, too. 6 Q And, in fact, ventilation of this sort was one of the 7 controls that was used in these shipyard insulation shops, 8 right? 9 A Yes. 10 Q Am I right in thinking, Dr. Peterson, that this 11 principle of ventilation was not something newly discovered 12 in the '50s or the '40s? 13 A That's correct. 14 Q Okay. So, even if we go back to the '30s or the '20s, 15 I mean, the machines may have differed; but the principle 16 was well-known to industrial hygienists? 17 A You can go back centuries, if you wish. 18 Q All right, sir. Do you recollect that the shipyard 19 workers that Mr. Fleischer and Drinker and others reported 20 on in 1946 also had the benefit of other engineering 21 controls like wet methods and - 22 A Yes. 23 Q -- good housekeeping procedures? 24 A These are all accepted standard procedures in 25 industrial hygiene and have been since way before I got in 95 1 the field. 2 Q Well, while we are here on this stop along the way, 3 then, would you tick off for me the general principles that 4 would be applicable to dust control that have been 5 well-known in your field back through the early part of this 6 century? 7 A Okay. Once upon a time, I wrote a chapter in the NIOSH 8 instruction manual about controlling hazards in the 9 occupational environment. You will find that in my CV. 10 But, basically, one controls hazards from materials that one 11 can inhale by -- oh, I'm not even going to try and count 12 them all offhand. 13 One either isolates the process or one isolates the 14 workman or one changes the materials or the process that is 15 being used or one uses wet methods to suppress dust. The 16 isolation process can be very complex or very simple. You 17 can isolate with time, distance, or mechanical barriers 18 around the workmen or around the process. 19 This -- this stuff is not new. It's been used in some 20 form or another since there were people working with 21 hazardous materials with greater success as time went on. 22 We know more today than we did a long time ago. 23 Q A lot of this has to do just with good housekeeping, as 24 well, in the worksite, doesn't it? 25 A Oh, yes. That's correct. 96 1 Q And I suppose if we are talking about, let's say, 2 thermal insulation, for example, just the way you handle the 3 material, physically handle it in cutting it and installing 4 it and removing it can have some effect on the amount of 5 dust that might be generated? 6 A There is no question about that. 7 Q And what happens with the refuse as it is put on the 8 ground or falls to the ground and how frequently that's 9 cleaned up can bear on the amount of dust put into the 10 environment, as well, doesn't it? 11 A Certainly. 12 Q And that, too, was a principal that Fleischer and 13 Drinker espoused in the shipyard program? 14 A They did. 15 Q And am I right in remembering that there was, also, a 16 medical monitoring program that went along with this 17 shipyard insulation? 18 A Yes. 19 Q And all of these principles you have been discussing in 20 the last couple of minutes were ones that Drinker and others 21 laid out early on in the war when they proposed regulations 22 for the Navy shipyard shipbuilding programs, right? 23 A Yes. 24 Q And covered not only asbestos but silica and welding 25 fumes, for example? 97 1 A Just about anything that people could get into. 2 Q All right. So, looking back, we could say that the - 3 while the machines and the tools and the technology today 4 has advanced to some degree or another, the basic principles 5 of industrial hygiene really haven't changed much over your 6 lifetime, not just your work lifetime but your lifetime, as 7 well? 8 A That's right. The same philosophy has pertained all 9 the way along. 10 Q One thing we forgot to mention in this series that you 11 were setting out for us was protective equipment, 12 respirators. I guess that would be a way of isolating the 13 workmen themselves. So, that would be an example - 14 A Yes. 15 Q -- of isolating the workmen? 16 A In fact, that's the best example is the use of 17 protective gear of all kinds by the workmen, whether it's 18 boots and gloves or a respirator or whatever that one wears, 19 an apron, so forth. 20 Q And I guess that's the reason why in a lot of 21 industries and even back to the turn of the century the 22 workmen would have factory garb to wear at work to where 23 they wouldn't actually be wearing their street clothes in 24 their job with dust and chemicals? 25 A That certainly has pertained all the way along as a way 98 1 of protecting the workmen, yes. 2 Q And by the same token, a way of preventing that dust or 3 hazardous liquids not be carried home on the workman's 4 person to his household, as well, right? 5 A Yeah. Where that could be a problem and the problem 6 was recognized, that was a reason for using different gear, 7 clothing, and so forth at work, to not carry it home. We 8 did that a lot in the formulation of insecticides. We had 9 the people that worked in the insecticides wear 10 company-supplied clothing of all kinds so they wouldn't 11 carry the stuff home with them. 12 Q Do you have any clear recollection of the nature of the 13 Dow respirator program while you worked there? 14 A We didn't have a respirator program, per se. The 15 industrial hygiene group or the safety people usually would 16 make recommendations about respirators. The industrial 17 hygiene crew was mostly interested in making sure that if 18 people were using respirators they were using the proper 19 respirators. 20 The only group that I'm aware of that routinely used 21 respirators were those people running the chlorine cells and 22 they had the so-called sucker respirators for chlorine that 23 they wore around their necks until they smelled some 24 chlorine. And then, they put the nose clip on and stuck the 25 respirator in their mouth and went on working. This became 99 1 a very controversial thing at one point; but at any rate, 2 that's the only group that I recall that routinely used 3 respirators. 4 Q Did you ever have occasion to do any work out at the 5 Colorado facility that Dow was running for the ADC? 6 A No. I almost got there once, but the problem that I 7 was to go out on apparently got solved. And so, they didn't 8 go ahead and get my Q clearance that would have been 9 required. 10 Q I'm sure you and your colleagues must have appreciated 11 that there were problems getting a good fit of respirators 12 on your workmen back in the '50s? 13 A That would have been the case if we had very many 14 people using fitted respirators, but the sucker respirator 15 you stick in your mouth. It's a piece of tubing, and there 16 is no fit there. So that those respirators required no fit, 17 and we didn't have a problem with the fit. 18 Q But on a half-face, mechanical, filter-type respirator, 19 fit is an issue, isn't it? 20 A It certainly is. 21 Q You might remember one of the Dow hygienists out at the 22 Colorado facility -- what is it? Rushing Flats? Rocky 23 Flats? 24 A Rocky Flats. 25 Q Rocky Flats. -- actually developed a fit-testing 100 1 program for respirators probably around the time you left 2 Dow. 3 A I think it was about that time. We were aware that not 4 all respirators fit all people. I mean, any idiot can be 5 aware of that. And, therefore, even attorneys might be 6 aware of it. You never can tell. 7 At any rate, we at the safety department always had 8 respirators available that had been made by very many 9 manufacturers so that one could obtain a good fit if you 10 tried. 11 Q Okay. I mean, it was the case that no single 12 respirator would fit every person in the group? 13 A That's true. 14 Q And probably no person in the group could get a fit 15 with every single respirator in your inventory? 16 A One would expect that to be the case, as well. 17 Q Very briefly, on medical monitoring at Dow, is this an 18 area that you can help us with for that period the early 19 '50s to mid '60s? 20 A Very peripherally, yes. I was aware of medical 21 monitoring programs that I requested; but other than that, I 22 wasn't aware of the details of the medical monitoring done 23 by the medical people. 24 Q There was enough staff to do medical monitoring at Dow 25 in the early '50s, I assume? 101 1 A Yes, there was. 2 Q I think you told us before that periodic physical 3 examinations were available for any individual who requested 4 one? 5 A Yes. I think that's my recollection of Dow policy. 6 Q Do you recollect that physical examinations were 7 regularly required for any particular trade or craft? 8 A Not a trade or craft. Instead, it was as a result of 9 potential exposures, particularly as Dow got into the 10 cholinesterase-inhibiting insecticide business. Then, we 11 had periodic monitoring of plasma and red cell 12 cholinesterase levels in the people who were so potentially 13 exposed. That's one that I had something to do with. So, I 14 know about it. 15 I know that other medical monitoring was done; but 16 where and under what circumstances, I don't know. 17 Q Okay. Were you aware that at least by the time of 18 World War II that Standard Oil, now Exxon, had a medical 19 monitoring program for its workers potentially exposed to 20 asbestos? 21 A No. I was not aware of that. 22 Q Do you know if there was any regular program at Dow for 23 having chest films made of people who would be potentially 24 exposed to dust in the workplace? 25 A I'm not aware of that. 102 1 Q Was there any kind of biological monitoring program at 2 Dow, other than for the cholinesterase-exposed workers? 3 A Once Dick Stewart started working with Dow as a 4 physician in the medical department, he started using breath 5 monitoring or breath analysis as a technique for monitoring 6 exposures to various solvents. I helped Dick do some of the 7 basic research that lead to being able to do that. But 8 that's the only biological monitoring that I'm aware of, 9 unless urine analysis was used where trichloroacetic acid or 10 trichloroethanol would be expected as a result of exposures 11 to trichloroethylene or perchloroethylene or something of 12 that sort. 13 Q So, you would take a chemical analysis of a person's 14 exhalation to look for solvent exposures? Is that what I 15 understood? 16 A Yes. That's correct. Look for the concentration of 17 solvent in the exhaled air, yes. 18 Q I see. Okay. Do you know if pulmonary function 19 testing was done at the Dow plant in Midland? 20 A I don't recall. 21 Q You never had one there, anyway? 22 A No, I never did. 23 Q When we visited before, you said something to me to the 24 effect that the 5 million particle TLV for asbestos was 25 based on the wrong kind of sampling method. Do you remember 103 1 that? 2 A Sure. 3 Q Could you explain to me what you meant by that? 4 A Well, it turned out as a result of subsequent research 5 that it's the fibers of asbestos that cause injury. Whereas 6 the midget impinger sampling and counting methods, you can't 7 separate one from the other except physically. I was 8 looking at all particles, and it isn't the rounded particles 9 that cause any injury at all. It's the fibers. So, in that 10 respect, we were looking at the wrong thing so far as the 11 sampling method is concerned because the midget impinger is 12 a pretty rotten sampler for fibers; and we were looking at 13 the wrong counting method because we were looking at all 14 particles and not just fibers. 15 The subsequent research, some of which was done at 16 Saranac Lake by the people there, showed that it's fibers 17 that count in this business; and the British taught us to 18 use the membrane filter method for analyzing air and 19 counting fibers. 20 Q Are you -- was it the case, then, of when the -- what 21 became the TLV or what was originally called the maximum 22 allowable concentration for asbestos was developed that 23 these particles were counted, basically, as a surrogate for 24 the potentially harmful material in the dust? 25 A Not as a surrogate. The people who were doing this 104 1 thought that it was all the particles that caused the 2 injury. They had no appreciation for the fact that injury 3 was caused only by fibers. 4 Q Well, were they able to count fibers back in the late 5 '30s when this TLV was proposed? 6 A Sure. Read the Dreessen report, and you will find some 7 fiber counts in it. Nevertheless, subsequent research has 8 shown that the midget impinger is a pretty crummy sampling 9 method for fibers. It is much better for nonfibrous 10 particles than it is for fibers. We didn't know that then. 11 Q Okay. You are saying back then, though, when Dreessen 12 did his studies that he had the technical capability, the 13 equipment that would let him see and count fibers? 14 A Yes, but not to sample fibers. He didn't have the 15 technical equipment that would allow him to sample and then 16 count only fibers. We didn't have the membrane filter, 17 which is what is necessary to do that. 18 Q Okay. Let me make sure I understand. You say he 19 didn't have the capability to sample and count fibers? 20 A (Witness nodding head affirmatively.) 21 Q So, what was your reference to Dreessen's report about 22 fibers, then? You threw me there. 23 A Oh, there is a table - I don't remember the table 24 number. There are a lot of tables in that report - where he 25 talks about the percentage of fibers amongst the particles 105 1 that were counted in some areas. So that, sure, with a 2 light-field microscope and midget impinger sampler you can 3 see fibers, no question about it, if you are exposed to 4 asbestos. 5 You can't see very many of the fibers that actually 6 were present in the air that was sampled, however, because 7 the sampling method is inefficient for fibers. Just because 8 it's inefficient, however, doesn't mean that it didn't find 9 any. Sure, it found fibers. 10 Q Okay. And so, with the -- with the sample, you get 11 some of them -- some fibers, if you were dealing with air, 12 that had asbestos in it and you could see and count some 13 fibers with the light-field microscope but you would be 14 undercounting what was really there. Is that - 15 A That's correct. 16 Q -- what you are telling me? 17 A You wouldn't be undercounting. You would be counting 18 all the fibers you could see. So that's not undercounting. 19 That's undersampling, if you would. We are missing a lot of 20 the fibers when using the midget impinger to sample air. 21 Q But, nevertheless, the TLV that came to be developed in 22 roughly -- when was this? Tell us. '46, did you say? 23 A '38 was the Dreessen report. The first TLV was '46. 24 Q Okay. And as we saw in something we were looking at 25 after lunch, that's also been called a MAC, maximum 106 1 allowable concentration. 2 A It was called the MAC when it was first developed. 3 They didn't start using the phrase "threshold limit value" 4 until the late '50s or early '60s. 5 Q Okay. But the -- then, this standard for maximum 6 allowable concentrations that you said first was published 7 in '46 was, nevertheless, based on samples taken with a 8 midget impinger and counts made with the light-field 9 microscopy to determine the number of particles per cubic 10 foot? 11 A That's right. That's a very short summary of the 12 process. There is a lot more that goes into it, but that's 13 fine. 14 Q Okay. And the method on which the asbestos standard 15 was based didn't change until when? Sometime in the late 16 '60s? 17 A About 1974. 18 Q And the standard itself, the 5 million particles per 19 cubic foot for asbestos, when did that change? 20 A Well, it began to be changed in 1968. The change did 21 not take place fully until the '70s. I think it was '74. 22 It might have been '72. I don't remember for sure. 23 Q Well, in 1968, I think at Dow the -- your department 24 was preparing to move to a lower number, like a 2 million 25 particle standard, if I remember correctly? 107 1 A That's probably correct. I wasn't there. 2 Q Yes, sir. But am I right, then, that it wasn't until 3 sometime in the early 1970's that the 2 million particles 4 per cubic foot standard for asbestos took the place of the 5 5 million particle standard? 6 A The 2 million particle standard never took the place of 7 the 5 million particle standard. It was proposed in 1968 8 that the standard be changed to either 2 million particles 9 per cubic foot or 12 fibers per CC. After 1968, we only had 10 proposed standards until 1974, when the standard that was 11 adopted was 5 fibers per CC. 12 Q So, in terms of the ACGIH standard recommendation, it 13 went from being 5 million particles per cubic foot to 5 14 fibers per CC in one jump, with - 15 A Yes. 16 Q -- proposed changes in between that never took - 17 really became the standard? 18 A Yes. That's correct. That is the way it went. 19 Q Okay. And I know that they don't exactly equate to 20 each other, but what is the -- what multiple of five fibers 21 per CC is the 5 million particles per cubic foot? 22 A Well, the way one looks at that is to say, okay, maybe 23 ACGIH and OSHA and so forth knew what they were talking 24 about and that 2 million particles per cubic foot was 25 equivalence to 12 fibers per CC, maybe. Actually, earlier 108 1 work and subsequent work has shown that that kind of 2 equivalent would only apply to one circumstance, at best. 3 So that it's a wild, hairy ass guess, really. 4 Q Okay. But is there a - 5 A That's the way it is. 6 Q Is there a relation between the five fibers per CC to 7 -- relative to 5 million particles per cubic foot, or are 8 they just not comparable? 9 A No. You have got -- no. They aren't really 10 comparable. However, if 2 million particles per cubic foot 11 is equivalent to 12 fibers per CC, that means that we've got 12 a factor of six between the two. And so that six fibers per 13 CC -- no. I'm sorry. 14 Q Equal 1 million particles per cubic foot. 15 A Something like that. 16 Q Yeah. Okay. Now, it's -- it's often said, I think, 17 that the ACGIH reviews these standards every year and they 18 publish in perhaps not yearly but every few years their 19 TLV's but the truth is that there wasn't any serious review 20 of the asbestos standard by the ACGIH between 1946 and 1966, 21 was there? 22 A There may well have been. The fact of the matter is, 23 we didn't have any publications that they could refer to 24 that would mandate the change in anything. So that whether 25 the standard was reviewed annually, as ACGIH says it is, I 109 1 really can't say because I wasn't there. 2 Q Okay. So, there may have been. There may not have 3 been. You don't know? 4 A That's correct. 5 Q When you began to work on the ACGIH committees in - 6 after 1965 - 7 A (Witness shaking head negatively.) 8 Q You didn't? 9 A Your predicate is wrong. I never worked on an ACGIH 10 committee. 11 Q Well, you probably should have. 12 A That could be. 13 Q Okay. You never worked on an ACGIH TLV committee at 14 all? 15 A Of any kind of committee for ACGIH. 16 Q Well, then, I'll leave that alone; and we'll move on. 17 A Thank you. 18 Q Do you know of any products that Dow made that had 19 asbestos in them? 20 A No, I don't. 21 Q Did Dow make a stop leak or antifreeze product? 22 A Dow made an ethylene glycol antifreeze; but it was 23 never sold under a Dow label, as far as I am concerned. 24 They may have supplied ethylene glycol as an antifreeze 25 formulation to others. Wait a minute. There was a Dow 110 1 product that was based upon distilled or deionized water, 2 and it wasn't an added product. They would replace the 3 coolant in a vehicle's engine with this coolant based on 4 very, very pure water and pure ethylene glycol; and it 5 wouldn't corrode anything in the system. And it may have 6 had corrosion inhibitors in it, so far as I know; but I 7 don't think there was any asbestos in it. 8 Q Okay. Dow made an ethylene glycol product which you 9 think it sold to someone else for packaging and - 10 A Oh, I'm sure of that. Sure. 11 Q -- and retail? 12 A Yes. Ethylene glycol was one of Dow's big products, 13 and it sold it to all sorts of people, all sorts of other 14 chemical companies. 15 Q Yes, sir. But Dow never sold under its own label at 16 retail, so far as you know? 17 A Just that one I'm talking about. I think that was sold 18 under the Dow name, but I'm not even positive of that. 19 Q Okay. You don't know if Dow used asbestos in its 20 ethylene glycol formulation? 21 A I don't know why they would; but, no, I'm not aware of 22 how they formulated the ethylene glycol that was sold. To 23 the best of my knowledge, what Dow sold was pure ethylene 24 glycol. 25 Q Okay. 111 1 A Other people might have used it and mixed it with all 2 sorts of things. 3 Q While you were a Dow industrial hygienist, do you 4 remember seeing insulators at work in the plants? 5 A Never. 6 Q And you have already told us you don't know if or what, 7 if at all, asbestos insulation materials were used in Dow 8 plants? 9 A That's correct. 10 Q Whose they were, if they were, - 11 A That's right. I just -12 Q -- or how they were? 13 A I know nothing about it. Even less than that. We get 14 into negative numbers. 15 Q Did you Dow industrial hygienists do work for other 16 companies while you were there, sir? 17 A In one respect and only one that I am aware of and that 18 is one of Dow's big products was Styrofoam. Styrofoam was 19 polystyrene blown with methylene chloride. So, all the 20 little bubbles -- not methylene. Methyl chloride. All the 21 little bubbles had methyl chloride, and a lot of this stuff 22 was fabricated by Dow customers by sawing it up. And when 23 you saw these little bubbles, methyl chloride was released; 24 and Dow was scared silly this was going to hurt somebody. 25 So, they had a deal with their customers that any time 112 1 Dow wanted to, Dow could come into the customer's plant and 2 monitor for methyl chloride concentrations where the 3 Styrofoam was being cut up. 4 I had nothing directly to do with that program. That 5 was Ed Schneider's program, and he ran all over the country 6 doing this periodically. But with that program, no Dow 7 customer was ever injured by methyl chloride, to the best of 8 my knowledge. 9 Q This is a form of a products stewardship program, you 10 might say, correct? 11 A Yes. 12 Q Did you Dow hygienists do any work for Dow Corning 13 along the way? 14 A Very occasionally. I think one of us would go over 15 there on an emergency basis of one kind or another. I 16 recall going over to Dow Corning once, I believe. I think 17 Larry Silverstein went over a couple of times while I was 18 there, and that was the extent of it. 19 Q Do you recall ever seeing people sandblasting in the 20 Dow plants? 21 A As I said, I may have monitored the -- or sampled the 22 silica exposures of a sandblaster at Dow; but beyond saying 23 that that may have happened, I can't answer the question any 24 better than that. I just don't know. 25 Q Okay. How many plants were you responsible for or how 113 1 many plants did you have to cover while you were a Dow 2 hygienist? 3 A Well, most of my work was done in Midland, in the 4 Midland division. Most of the work in outlying plants, 5 outlying divisions of the company was done by Mr. Hoyle. It 6 was only if Harold were unavailable or for some other reason 7 that one of us went to the other plants. 8 I actually got to Freeport, Texas, twice, I believe. I 9 got to Sarnia, Ontario, once or twice; over in Bay City once 10 or twice; to Ludington, Michigan, once; and I think that is 11 it. I don't think I did any other work elsewhere. 12 Q Okay. During your plant talks, slide talks, you called 13 them, to the workers, while you were at Dow was asbestos 14 ever discussed in those slide talks - 15 A I don't recall -16 Q -- with the workers? 17 A -- ever doing so. I don't recall any plant where 18 asbestos was handled in Midland. 19 Q Were there meetings between industrial hygiene persons 20 and union representatives in the Dow facilities while you 21 were there? 22 A Sure. 23 Q Did you participate in any of those? 24 A No. Mr. Hoyle did that kind of work. 25 Q Do you know whether or not such meetings had records 114 1 made to show what was discussed? 2 A I don't know. Let me back up a little bit. Whenever 3 we went out to give a slide talk, we would have as many 4 people as the plant could spare for production in our slide 5 talks; and we almost always had union representatives in 6 that group. So that I met a lot of union reps but not on a 7 formal basis. I believe Harold did eventually, but that's 8 simply a belief. I don't know that from seeing it or being 9 told about it directly. 10 Q In addition to the slide talks, were there other 11 methods you used at Dow to inform your workers of 12 occupational disease hazards they might face in the plants? 13 A Not directly that I recall, no. That was the main one 14 until we developed our data sheets; and then, they became 15 available to everyone in the plant. 16 Q And you place the data sheets in what period, sir? 17 A You just found the publication. Was it '61? At any 18 rate, it was before that. It was probably '59, '60, 19 something in that neighborhood. 20 Q And data sheets being, let's say, a forerunner of the 21 material safety data sheets we speak of today? 22 A Yes, they were. In fact, I think they are better than 23 the MSDS's of today. They generally are. 24 Q Prior to 1965, when you left Dow to go back to the 25 university, are you aware of any efforts at Dow to warn or 115 1 instruct people, workers potentially exposed to asbestos 2 about the health hazards that they might face? 3 A No. 4 Q Would you say that in 1965, at the time you left Dow, 5 that you and your colleagues knew what a no effect exposure 6 level for asbestos was? 7 A We would take the no effect level as being at the TLV. 8 All of us were. And at that time, in 1965, it was 5 million 9 particles per cubic foot. 10 Q That seems to be a little bit at odds with your 11 statement to me earlier that you also recognized in the '50s 12 and '60s that it was possible to -- for a person exposed at 13 levels below the TLV to develop disease? 14 A Oh, I know that now. At that time, I didn't know it. 15 No way. Unless we look at the TLV's in a philosophical 16 fashion to realize that a threshold limit value is not an 17 absolute line between safe and dangerous, that you can be 18 exposed to above a TLV and perhaps not suffer any injury. 19 You can be exposed below it and perhaps suffer some injury. 20 But these are perhapses. And so far as a line exists, the 21 line is the TLV at any particular time, for me and for most 22 industrial hygienists. 23 Q So, you're recalling that in the '50s and '60s you 24 treated the TLV as a bright line between a safe and a 25 possibly harmful level of exposure? 116 1 A In so many words, yes. 2 Q Okay. 3 A However, all of us, certainly at Dow and most 4 industrial hygienists I know of, did their best to make sure 5 that exposures would never exceed the TLV and would be kept 6 as low below the TLV as practical. 7 Q And why would you want to keep exposures as low as 8 practical? 9 A Simply because of the very faint possibility of injury 10 and because of the idea that we didn't want people exposed 11 to things where an exposure was not a necessary part of what 12 they were doing. 13 Q And would I be right in thinking that even in the mid 14 '50s you would have recognized that there was a wide 15 variation in individual susceptibility to different 16 stressors that you might have in the workplace? 17 A I think that's been known as long as people have 18 thought about such things. 19 Q And in your teaching and studying in the health science 20 area, you certainly would have learned or known that even in 21 major epidemics not everyone falls prey to the virus or the 22 bacteria or the disease; isn't that true? 23 A That's true. 24 Q Well, was it the practice at Dow to err on the side of 25 caution when dealing with TLV's for harmful materials or 117 1 just to run right up to the line? 2 A We tried to be safe always. We tried to err on the 3 side of caution, not on the side of possibly overexposing 4 people. That was our aim always. 5 Q And did you think that was the only reasonable approach 6 to take to protecting the workers from hazards and chemical 7 hazards and - 8 A Sure. I can't think of any report that I have written 9 where I didn't say, "Okay. This exposure is safe. It's 10 okay to have. However, if you do this, you can reduce the 11 exposure." I think we all do that. We all adopt that 12 philosophy on just a part of industrial hygiene. I'm not 13 simply saying this is Dow people. I think it's every 14 industrial hygienist I know will do that. 15 Q Or ought to do that? 16 A Most of them do do it. They say if the exposure is 17 okay, if you go over the TLV, they will still point out ways 18 you can reduce the exposure. I think this is a very logical 19 part of industrial hygiene. 20 MR. BLANKS: A short stop, Art? 21 MR. ALMQUIST: Yes. You read my mind. 22 (After the break, the proceedings continued as 23 follows:) 24 Q (By Mr. Blanks) All right. We were talking about 25 keeping those exposures as low as possible when we broke 118 1 and - 2 A As low as practical. 3 Q As practical. With as low as possible being the goal 4 and as low as practical being the practical effect and I 5 mean - 6 A Joe, one time somebody sat down and calculated that 7 each breath we take contains 200 molecules of air that went 8 through the lungs of Cleopatra. You can never get things as 9 low as possible. All you can do is stay within the realm of 10 practicality. 11 Q All right. And that was certainly the goal of the 12 industrial hygiene program at Dow while you worked there, 13 right? 14 A It was. 15 Q Now, do you know by the time you left if there was some 16 kind of a database kept at Dow on the death certificates of 17 annuitants and employees that would give them a basis for an 18 epistudy? 19 A I would be surprised if that weren't the case, but I 20 sure don't know from my own knowledge. 21 Q Okay. 22 A Gee, the way you are paging through those things, we 23 don't have much to go. 24 Q Well, just about half the pile; and we are doing good. 25 A Okay. 119 1 Q I noticed on your CV you had listed some representative 2 clients, and you noted Monsanto as one of them. Could you 3 just tell me what sort of projects you have done for 4 Monsanto? 5 A Good question. Monsanto has a plant in Charleston, 6 West Virginia, and they were having some problems and 7 contacted me as a consultant to come down and help them 8 solve their problems and I did. 9 Q In the plant? 10 A In the plant. 11 Q It had nothing to do with litigation? 12 A No. That's right. Not at that time. I did some other 13 work for Monsanto that had something to do with litigation; 14 but it was preparing a book, if you will, that was to be 15 used to educate attorneys on the issues surrounding dioxin 16 exposures and their consequences. 17 Q Per chance in connection with the agent orange 18 litigation? 19 A Yes. 20 Q So, when you went to the Charleston plant, you were 21 there just as an outside industrial hygiene consultant to 22 provide expertise for a particular issue that had come up at 23 the plant? 24 A Yes. 25 Q There were folks that were available to do just that 120 1 sort of thing, that is, consult on industrial hygiene 2 questions back even in the early 1950's, were there not? 3 A Let me back up. Maybe that wasn't for Monsanto. That 4 was for FMC that I did this. What did I do for Monsanto 5 except that book? I don't remember right offhand. 6 Q Well, okay. Let me go back to the question I put to 7 you. Whether it was Monsanto or FMC or Dow or anybody else, 8 Stouffer Chemical, you came in as an outside consultant to 9 offer your expertise in solving a problem or a perceived 10 problem? 11 A Yes, I did. 12 Q To make recommendations for - 13 A Whatever. 14 Q -- controls and preventive measures, whatever might be 15 appropriate? 16 A Yes. 17 Q Now, my question, then, was: Weren't there people, 18 industrial hygienists, available to do that kind of 19 consulting work for companies even back in the 1950's? 20 A Probably. I certainly don't know anybody who was a 21 consultant in industrial hygiene in the '50s, but I would be 22 surprised if there weren't such people. I just don't know 23 who they would be. 24 Q But did you ever come to learn that, for instance, the 25 Industrial Hygiene Foundation would do surveys on request? 121 1 A For their members, -2 Q Yes. 3 A -- yes; but not just on a general basis. 4 Q And did you ever learn that Phil Drinker and others 5 from the Harvard Public Health School were available to do 6 consulting with private industry? 7 A No. 8 Q Will you be surprised to learn that that occurred? 9 A No, not at all. I just didn't happen to know it. 10 That's all. 11 Q Okay. And this wasn't a problem at Dow because you had 12 your own industrial hygiene department, at least by the time 13 that Mr. Hoyle was hired? 14 A That's right. 15 Q Do you recall seeing any material data sheets or safety 16 data sheets before you left Dow that dealt with 17 asbestos-containing insulation materials? 18 A No. 19 Q If these had come to Dow for its use, would it have 20 come into your department? 21 A Yes. 22 Q Would you think that by 1960, for example, that at Dow 23 you would have needed to be told by an insulation supplier 24 about the potential health hazards of asbestos in its 25 insulation? 122 1 A No. 2 Q How about in 1955, when you had had a couple of years 3 experience? 4 A Same answer. 5 Q You wouldn't have needed the asbestos companies to tell 6 you that there were health hazards associated with certain 7 levels of exposure to their product? 8 A No. 9 Q Has your welding rod work or your welding fume work 10 been focused on the manganese issue exclusively? 11 A No. When we first had lawsuits regarding welding rods, 12 they were focused on asbestos that was used in the coatings 13 of some electrodes. 14 Q And what conclusions or opinions did you express about 15 any asbestos hazard connected with the welding rod coatings 16 and fumes? 17 A That there was none. 18 Q What did you base that on? 19 A Two things: One, that asbestos is completely destroyed 20 when it hits the arc and the first contentions were that 21 people were breathing asbestos that appeared in welding fume 22 and this simply cannot be. 23 The second contention was that people got exposed to 24 asbestos from the coatings when they bent the welding rods. 25 A welder will maybe bend a welding rod once or twice in his 123 1 lifetime, but it isn't likely to happen much more often than 2 that. 3 And on that basis, I said I don't believe that there is 4 any hazard whatsoever from asbestos and welding rod fumes. 5 Q Okay. Nobody ever suggested to you that it was 6 customary to take a rod and crush it to roll or crush the 7 coating so you could use the rod for a filler? 8 A Sure. That was done; but not a filler, really. A 9 spacer is what they usually used the doggone things for, and 10 that wasn't very often. I have never talked to a welder who 11 did much of that. I have talked to a lot of welders. 12 Q It must have been better welders than me, then. 13 A That could be. I wouldn't know. 14 Q Okay. Stouffer, do you know what kind of work you did 15 for them, Stouffer Chemical? 16 A It was in conjunction with the coating of plastic films 17 with paint one way or the other, whether it was paint or ink 18 or whatever that they were doing at some plant or another, 19 that I came in and did a walk-through inspection and told 20 them how they should handle this so their people wouldn't be 21 overexposed to the chromates in that. 22 Q How about your work for GMC, Ford, and Chrysler, sir? 23 What did that involve? 24 A Several things. The very first consulting I ever did 25 was for GMC in a case litigation in Colorado which involved 124 1 carbon monoxide. Did I ever do anything else for GMC? I 2 don't recall. 3 International Harvester, did you list that? 4 MR. ALMQUIST: Forgot that one. 5 A That was carbon monoxide cases, as well. 6 Q (By Mr. Blanks) How about GM -- I'm sorry, Ford and 7 Chrysler? 8 A Ford was some sort of litigation. Chrysler was not - 9 well, it was workers' comp where a guy was -- well, there 10 were two or three workers' comp cases that I got involved 11 in. 12 Q Involving exposures at work? 13 A Yeah, that's right. 14 Q Not involving asbestos, silica, benzene? 15 A No, none of those materials. 16 Q Did you ever do any brake shoe cases for the automotive 17 companies? 18 A No. I have evaluated exposures from working with brake 19 shoes, but I have never done anything for the companies. 20 Q Ever done any litigation work in the asbestos brakes 21 material area? 22 A Once upon a time, I was shipped a lot of information, a 23 lot of papers regarding brake shoes and asbestos in a case 24 or cases in Orange County. This is when I was still in 25 Wisconsin, but it never went beyond that. It never even 125 1 went to deposition. So, I don't know what happened with the 2 cases or anything else; but that's the only time I have 3 gotten involved in that at all. 4 Q You told me last time we chatted that you had had some 5 dealings with a Jon Konzen a Konzen of - 6 A Yes. 7 Q -- OCF. Could you tell me about that? 8 A Jon was at the University of Michigan working on his 9 Master of Public Health. At the same time, I was at the 10 University of Michigan working on my Ph.D. So, I met Jon at 11 that time. I, to the best of my knowledge, haven't seen him 12 since. 13 Q Was he an Owens-Corning Fiberglass employee at the time 14 he was working on his postgraduate degree? 15 A I have no idea. He was a physician, but I don't know 16 who sent him there. It could have been OCF. I just don't 17 know. 18 Q Well, I was just curious. If you haven't seen him 19 since then, how do you -- is it you associate him with OCF? 20 A Oh, I have seen his name on some papers where he is 21 identified as an OCF medical director; and it's a peculiar 22 name. It's J-o-n rather than J-o-h-n, and Konzen is a 23 peculiar name. So, it stuck in my mind. I doubt if I could 24 pick him out of a group of people; but, nevertheless, I have 25 met him, I do know him, and I respected him. 126 1 Q Do you understand he is still living? 2 A Yes. 3 Q Do you know where, more or less? 4 A I have no idea. 5 Q How about Ms. Cathy Johnson? 6 A Cathy is a gal that I worked with in producing that 7 book for the Monsanto attorneys. She, at that time, was not 8 working for OCF. She left OCF and -- or whatever. She 9 wasn't working for OCF, anyway. She was an independent 10 consultant. She may have gone to OCF since then. I am not 11 even sure of that. I don't see Cathy very often, either. 12 Q What was her area of expertise? 13 A In industrial hygienist. 14 Q And where did you last believe her to be living or 15 working? 16 A In Ohio, northern Ohio somewhere. 17 Q Do you know that -- whether or not she is a member of 18 your association? 19 A Well, I belong to three associations, in fact, several 20 associations. 21 Q Well, I mean - 22 A She is probably a member of the AIHA. Beyond that, I 23 don't know. 24 Q And your dealings with Mr. Hazard, we mentioned him a 25 little earlier today, but that was limited to contacts at 127 1 professional society meetings? 2 A Yes, that's correct. 3 Q You never had occasion to call on him for any 4 information or vice versa? 5 A Not that I recall, no. 6 Q You suggested earlier that the Fleischer-Drinker study 7 was maybe the best information available in the early '50s 8 on asbestos insulation work; is that fair? 9 A Yeah. 10 Q Can you tell us to what extent Dow tried to follow this 11 program that Fleischer and Drinker discussed in their 12 article? 13 A Dow didn't follow the program, so far as I'm aware. 14 I'm not aware of any work the industrial hygiene group at 15 Dow did with asbestos in any form and certainly not with 16 thermal insulation. 17 Q Do you -- have you learned whether OCF's insulator 18 employees to any extent followed this program that Fleischer 19 and Drinker laid out in their 1946 article? 20 A I know very little about OCF and OCF employees. So, 21 the answer is no. 22 Q You know just what they choose to tell you; is that 23 right? 24 A They don't tell me very much. Let's put it that way. 25 Q Would I be right in thinking that if we -- if we added 128 1 up all of your consulting fees since you left Dow that OCF 2 would have paid you more than all the rest of the clients 3 combined? 4 A Oh, no. No. I don't think so. 5 Q No? 6 A No. If we did that, added up all my consulting fees 7 since I left Dow, what I have billed and been paid by OCF 8 might be as high as 20 percent of those fees. It certainly 9 wouldn't be any more than that. 10 Q You have been working for OCF in litigation since, 11 what, the late '80s? 12 A No. Since about '92. 13 Q Oh, that recently? 14 A Yes. 15 Q You had done some work in the late '80s for somebody 16 else? 17 A I did some work in the early '80s for OI through one of 18 their outside attorneys. He was trying to prepare me to 19 become a state-of-the-art expert for OI. That culminated in 20 a portion of a deposition and never did anything more from 21 OI than that. 22 In the mid '80s, I did some work. I did some -- I will 23 try and talk more clearly. I did some work for this 24 consortium of asbestos manufacturers in litigation. I was 25 in two or three trials for the firm of Foley & Lardener in 129 1 Milwaukee, but I never was aware of what companies were in 2 that consortium. So, I can't tell you much more than that. 3 It wasn't until about '92 that I got involved with OCF at 4 all. 5 Q Okay. In your consulting for Dow since you left the 6 company, has any of that involved occupational disease 7 claims? 8 A No. 9 Q Jumping back to the time you monitored removal of 10 asbestos-containing material from a building in 11 Milwaukee, - 12 A Yes. 13 Q -- I think you said that involved ceiling tile, 14 acoustical plaster, and some pipe insulation. Do you have 15 any recollection today what -- roughly when that was done? 16 A Yes. I can tell you when. 1984. In fact, in the fall 17 of 1984. 18 Q And for whom it was done? 19 A It was done for a company that used an acronym for its 20 name. The acronym was MARS, and I believe it was Midwest 21 Asbestos Removal Service from northern Illinois somewhere. 22 Q So, this was on an abatement project of a single 23 building for the abatement contractor? 24 A Yes, that's right. 25 Q Your asbestos brake shoe monitoring projects, I gather 130 1 at least one of these was done for Municipal Bus Company; 2 and there was more than one time you did this, right? 3 Milwaukee and St. Louis? 4 A Gee, excellent memory or whatever. 5 Q Short term. 6 A Yes. Milwaukee and St. Louis. Milwaukee a couple of 7 times and St. Louis once. 8 Q You monitored while the workers were turning the actual 9 asbestos brake shoes or pads on a lathe? 10 A These were brake blocks in St. Louis. I didn't do any 11 of that in Milwaukee. They didn't do any trimming of the 12 brake blocks there. 13 Q In Milwaukee? 14 A In Milwaukee. They did in St. Louis. 15 Q And do you remember what kind of dust levels you 16 measured there? 17 A They weren't hazardous in comparison to the TLV. 18 That's all I recall. I don't know the numbers. 19 Q Okay. 20 A I just know they weren't above the TLV or even a major 21 fraction of the TLV. 22 Q Did you do any monitoring when the men were blowing out 23 the brake drums? 24 A I don't really remember. What struck me was this 25 turning on the lathe of the darn brake blocks, and I 131 1 remember doing that. I did some other work there, too. I 2 was concerned about lead exposures and repairing radiators 3 and so forth, and I think that the only time I sampled for 4 asbestos was in this turning process. 5 Q So, you wouldn't have taken any area samples in the 6 shop? 7 A That's correct. Not for asbestos, at any rate. I 8 might have taken area samples. 9 Q And you weren't concerned one way or the other with 10 ventilation issues in the shop? 11 A No. The -- the results of my sampling were that there 12 wasn't any hazard involved in the process, certainly for the 13 people doing it, standing right there operating the lathe. 14 So, it -- there wouldn't have been a hazard for other people 15 either. 16 Q Okay. And in these cases you were hired by -- in these 17 instances you were hired by Municipal Bus Company? 18 A No. In St. Louis, I was hired by Fred S. James and 19 Company, insurance brokers out of Chicago, to monitor one of 20 their clients. 21 In Milwaukee, I was hired directly by the Municipal 22 Transportation facility or whatever they are called. 23 Q So, I suppose you, the way you figure it, that a person 24 doing brake work full-time is not going to get sufficient 25 occupational exposure to asbestos dust to cause disease? 132 1 A That was my feeling then, on the basis of the samples 2 that I took and the TLV at the time, yes. 3 Q Well - 4 A They were working very carefully, and they didn't put 5 much dust in the air. They certainly didn't go up there 6 with an air hose and blow dust all over the place. That had 7 been outlawed in both shops, I'm sure, for some time before 8 I got there. 9 In Milwaukee, they were experimenting, incidentally, 10 with brake blocks that didn't contain asbestos; and they 11 hated the things. They didn't work. 12 Q Okay. So, your opinion that you wouldn't get hazardous 13 asbestos dust levels doing brake work was based on 14 observations of how it was being done when you did this 15 sampling? 16 A In conjunction with the sampling results, yes. 17 Q Right. 18 A Yes. 19 Q Right. And then, it isn't necessarily an opinion about 20 conditions that may have existed in the past in any facility 21 or any workshop? 22 A That's correct. 23 Q Okay. I understand you now. Let's go back to the 24 University of Michigan when you were there with Warren 25 Cooke. Did you actually take courses from Mr. Cooke? 133 1 A Yes. 2 Q Was it Dr. Cooke? 3 A No. Mr. Cooke. 4 Q Mr. Cooke? 5 A He never even got a master's degree, to the best of my 6 knowledge. 7 Q Was it the Zurich Insurance Company that they were 8 with? 9 A Yes, that's it, Zurich. Thank you. Good for you. I 10 had forgotten. That tickled my memory. 11 Q A regular storehouse of knowledge here. 12 A Oh, obviously, yeah. 13 Q And had Mr. Cooke had experience as an industrial 14 hygienist other than at the insurance company, do you know? 15 A I really don't know. I never really talked to him 16 about -- very much about his past. I told you about the 17 radiation stuff, and I knew that he had worked for Zurich as 18 an industrial hygienist. But other than that, I didn't know 19 anything about his past. 20 Q Did you take courses from Warren Cooke himself? 21 A Yes, sir. 22 Q What were the subjects that you covered or he covered? 23 A General industrial hygiene. In fact, the course that I 24 eventually taught myself was modeled very much after 25 Warren's course at that time. So, again, to find out what 134 1 it is, read my book. Memorize my book. 2 Q Did you bring your book today? 3 A No, I didn't. I was sure you must have several copies 4 of it. 5 Q Well, if I knew where to get one, I would probably get 6 one. 7 A You would get it from ACGIH. They are the publishers 8 of the 1991 edition. 9 Q And you would autograph a copy if I sent it to you? 10 A I would be delighted to autograph a copy. 11 Q When did the book first come out? 12 A 1977. 13 Q Now, that's the one I would really rather have. 14 A That, I have one copy left; and that's one where the 15 cover was put on upside down. It was -- and somebody who 16 bought it sent it to me and said, "Can you send me a 17 replacement for this?" 18 And I said, "Sure." So, I traded. 19 But that's the only one I have left. I've made the 20 mistake of lending copies to attorneys, and I -- I never get 21 them back. 22 Q Did you have any other teachers that are worth 23 remembering from Michigan? Well, I mean, anybody with a 24 reputation or the big name that Warren Cooke had? 25 A Nobody can come to close to Warren's name. I took 135 1 toxicology courses from Herb Cornish, one or two courses 2 from him. I had a course in health physics from a Donald 3 Barber. And I've forgotten the name of the guy that taught 4 the analytical chemistry or analytical industrial hygiene 5 stuff. I had all the conventional course work there. 6 Q Did the doctoral program involve any field work? 7 A No. Certainly not for me. I had more field experience 8 than the sum total of the staff and the students at the time 9 I was there. 10 Q Well, I don't doubt it. Okay. You know, we were 11 talking sometime ago; and there were -- there was at least 12 one question that you didn't answer. 13 A Uh-oh. 14 Q And I should have written it out before we resumed; but 15 you had expressed a distrust for case reports of disease and 16 a high level of confidence, I think, in epidemiology 17 studies, particularly those that were supported by 18 industrial hygiene data or work. 19 A Sure. 20 Q And I was asking you whether you -- your philosophy was 21 to wait until you had a valid epidemiology study showing a 22 causal relationship between a material and a health effect 23 before you would implement controls to protect the workers. 24 A And I didn't answer the question? 25 Q I think that you didn't because that nasty gentleman 136 1 that was with you -- I mean, that was there started 2 objecting and then Mr. Almquist got into the act and it all 3 went downhill from there. 4 A At Dow -- to answer your question, at Dow - 5 MR. ALMQUIST: Let's -- just a minute. Do you 6 have a question pending, basically? 7 Q (By Mr. Blanks) I do. What -- if you were going to 8 answer that question that you didn't get to because of all 9 the attorney distraction, what would the answer have been? 10 MR. ALMQUIST: Just for my purposes of clarity, 11 can you tell me what the question is? 12 MR. BLANKS: See, here they go. Here they go 13 again. 14 MR. ALMQUIST: I haven't said a word all day, Joe; 15 but I am not really sure what your question is. I want to 16 be clear on that. 17 Q (By Mr. Blanks) Why don't you give me the answer; and 18 then, we'll figure out the question? 19 A Okay. That's fine. We are - 20 MR. JONES: Toxicology for 100. 21 A At Dow we often were involved in controlling exposures 22 when we had no idea what the TLV might be or what the 23 results of epidemiology might be or, in fact, what the 24 results of animal experiments might be, just based on the 25 idea that you try and keep exposures as low as practical. 137 1 And sometimes it was to avoid irritation. Sometimes it was 2 to avoid an increase in plasma or a decrease in plasma 3 cholinesterase or red cell cholinesterase or things on this 4 order. 5 So that, when possible, if I am making a decision, I 6 would like to base a decision of a TLV, if you will, on the 7 basis of chronic animal inhalation toxicology, as well as at 8 least a couple of good epidemiological studies of people who 9 are exposed. But we can't always have that. So, quite 10 often, we have to deal with part of that. 11 The problem with case reports is that very seldom do we 12 have any idea what the exposures have been. It's the very 13 odd, unusual case report that has exposure information; and 14 without that, the report is essentially worthless, as far as 15 I'm concerned. 16 Q (By Mr. Blanks) Okay. That seems to be a fair answer 17 to the question. 18 A That wasn't asked. Okay. 19 Q That in the best of all possible situations, you have 20 epidemiology studies backed up with industrial hygiene 21 studies where you could form an opinion about exposure 22 levels and consequences? 23 A And we'll also toss in animal studies, as well, with 24 that. 25 Q All right. 138 1 A One of my students at one time, when I was teaching at 2 the University of Illinois, formulated a thing with regard 3 to TLV's for cholinesterase-inhibiting materials, 4 insecticides, and pointed out that most of them had no basis 5 of animal studies, human studies, or anything else. They 6 were simply done by comparison with parathion and what it 7 would do to people and some ideas about how much less toxic 8 this stuff was than parathion. That's not a good TLV, as 9 far as I'm concerned. 10 Q But it's maybe better than nothing? 11 A Sure, absolutely, it can be better than nothing, 12 particularly when a number is decided upon by a group of 13 people who really are experts in the area and are giving us 14 their best guess. Although, it may be a best guess in the 15 form of a TLV; and it isn't labeled as a best guess. 16 Nevertheless, they probably know more about it than I do; 17 and, therefore, I'll go along with what they say. 18 Q Now, this didn't stop you folks at Dow from sometimes 19 validating these TLV's on your own. Am I right? 20 A That's correct. 21 Q And you had, obviously, the capability to do that when 22 you felt the need to? 23 A We can. And, in fact, on the basis of chronic animal 24 work, we sometimes promoted a Dow TLV, you are misusing the 25 term, that was lower or more restrictive than the TLV 139 1 committee and then tried to persuade the TLV committee that 2 that's the way to go. This was done particularly for vinyl 3 chloride. That's one compound that comes to mind where at 4 Dow we would allow exposures that were far less than the 5 TLV. That's all. Then, the stuff turns out to be a pretty 6 good liver carcinogen. We didn't know that at the time, but 7 the animal experiments had shown that it was doing things to 8 the liver that it shouldn't be doing at lower concentrations 9 than the TLV. 10 Q And I suppose if you hadn't have been looking for this, 11 it would have been a long time before it would have come to 12 your attention? 13 A Certainly a possibility that we can't discount. 14 Q And wasn't otherwise brought to your attention by 15 outside sources until, what, some years after Dow decided to 16 take an extra level of care with the vinyl chlorides, 17 correct? 18 A That's right. 19 Q On the subject of carcinogens, cancer-causing 20 materials, if we can go back to the Dow mind-set or 21 philosophy or policy program while you were working there, 22 was there a point where the company thought it ought to tell 23 workers about potential cancer hazards; and let me try and 24 be more precise with that preface. 25 If you suspected that a certain material were a 140 1 carcinogen, was it the Dow policy to inform workers of that 2 fact? 3 A Not per se. There was never such a policy. On the 4 other hand, if we suspected that a material was a carcinogen 5 and we were giving a talk in an area where this stuff was 6 handled, we certainly would mention that to the workers as 7 part of our presentation of the slide talk or in answer to 8 questions about it. 9 Q Okay. 10 A But we wouldn't make a special effort to go out and 11 say, "Hey, this stuff is -- can cause cancer. Stay away 12 from it." Instead, it was our policy to try and make sure 13 that people wouldn't get hurt, period, whether it was cancer 14 or whether the stuff would reach up and bite them in the 15 eye. This was our policy. 16 Q Okay. Let's move up the causal ladder a step to talk 17 about something that you regard as a possible carcinogen as 18 opposed to merely suspected. Was it the policy to tell the 19 workers potentially exposed about possible carcinogens? 20 A Same answer. 21 Q All right. How about the material that you had come to 22 regard as a probable carcinogen? 23 A Same answer, except that we probably wouldn't be 24 handling it. There were very doggone few known human 25 carcinogens amongst the chemicals that could have been 141 1 handled at Dow and that were handled at Dow. So, I am 2 talking about my perception of what our policy would be. 3 Right offhand, the only thing I can think of that Dow's 4 chemical employees might have been handling that was a 5 carcinogen was beta naphthalene; and we didn't have any beta 6 naphthalene in the plant, as far as I know. And this stuff 7 was a potent enough bladder carcinogen that we probably 8 would have said, "We don't want to handle it here. Somebody 9 else can handle it." 10 Benzidine came to be in that category, again; but we 11 didn't have any processes that used benzidine. So, it's a 12 kind of a moot question. I don't think it ever really arose 13 while I was at Dow. 14 Q Okay. How about if we ask those questions about 15 materials that you regarded as being a known carcinogen. 16 Was it the Dow policy while you were there to tell employees 17 they were working with a known carcinogen? 18 A In the same -- the same answer that I gave you before. 19 It's in conjunction with what we were doing in the plant. 20 If the question arose, we certainly would answer it that 21 way. We might have pointed out this the stuff is a possible 22 or possibly could cause cancer if the exposure is great 23 enough. I mean, we didn't hide things like this; but we 24 didn't make a special effort to go out and contact each 25 employee who might be exposed and say, "This stuff might 142 1 give you cancer." 2 Q Was there a reason why you wouldn't have done that? 3 A Sure. Every chemical handled at Dow, every chemical 4 handled at any chemical plant has the capability of killing 5 people. How that death occurs is kind of immaterial in many 6 respects. Certainly, to the person who dies, it's 7 immaterial how he died, once he is dead. 8 So that to single out cancer as being the thing to tell 9 people about, no, we didn't. We would tell them that the 10 stuff could chew up your liver; and as a result of that, 11 sure, you could die. It could chew up any organ you had; 12 and as a result of that, you could die. But we didn't focus 13 on the death. We focused on what one has to do to avoid the 14 injury this stuff can cause. 15 Q So, am I understanding that your approach, then, was 16 even with a -- merely a suspected carcinogen was to attempt 17 to minimize or eliminate the exposures wherever practical to 18 that material in your workplace at Dow? 19 A Sure. But you don't even have to use the word 20 "carcinogen." This was always our philosophy with 21 everything that we handled, to try and reduce exposures to 22 the lowest practical exposure. 23 Now, when we handled stuff that was extremely toxic for 24 one reason or another and, in particular, the 25 cholinesterase-inhibiting insecticides, we had plants that 143 1 were essentially enclosed. We isolated the plant from the 2 worker so that people just didn't have exposure to this 3 stuff; and we could use that technique with anything and for 4 any reason. 5 But we didn't have materials that we recognized as 6 being possible carcinogens in the plant when I was there. 7 So, to say that we had a policy, we didn't. I'm just 8 talking about Dow's philosophy or the philosophy of the 9 industrial hygiene group and how it would have treated such 10 things. 11 Q When did you first come to learn of mesothelioma as a 12 disease? 13 A 1965. The fall of 1965, August of 1965. 14 Q Back when you were at the -- when you went to the 15 university? 16 A That's right. 17 Q Would you be surprised to know that the API Medical 18 Advisory Committee had actually listed mesothelioma as a 19 tumor to follow in their tumor registry back in the early 20 1950's? 21 A Yes. That would surprise me. They must have had a 22 pretty good crystal ball. 23 Q Did you ever have any contact with the folks at 24 Kettering Institute? 25 A "Ever" is a big word. Ever. I have been to the 144 1 Kettering Institute, and I have given talks to the NIOSH 2 people in conjunction with a foundry survey that we did. I 3 guess I have been at Kettering three or four times in my 4 life. 5 Q Ever meet Dr. Kehoe there? 6 A No, never did. I know about Dr. Kehoe, but I've never 7 met him. 8 Q J.J. Fair? 9 A I know about him, too, but never met him. 10 Q Okay. Did you ever learn of the epistudy that the 11 folks at Kettering had begun for the API member companies in 12 the '50s? 13 A No. 14 Q Let me run through some names here that we didn't get 15 to talk about last time and maybe you can tell me if you 16 know what these people did. And these are going to be Dow 17 names, I'm thinking. 18 A Okay. 19 Q Dale McCouskey? 20 A Doesn't ring any bells. 21 Q R.H. Boundy? 22 A Yes. Dr. Boundy was one of the high muckity-mucks at 23 Dow in the laboratory area; but exactly what his job was, I 24 don't remember. 25 Q An M.D. or a Ph.D? 145 1 A No, Ph.D. 2 Q Roy De - 3 A Degesero. 4 Q Degesero. 5 A Roy went to the industrial hygiene lab, was hired by 6 the industrial hygiene group after I left. I had dinner 7 with the industrial hygiene group at a couple of the annual 8 meetings and met Roy that way. 9 Q Now, did that have plants outside the United States 10 while you were there? 11 A Yeah. In Canada. 12 Q Did they have any in the Netherlands, South America, 13 or - 14 A Not that I'm aware of. It could well have happened. I 15 just didn't know about it. 16 Q And what was Roy's background? 17 A I don't know. I know he was an industrial hygienist 18 working for Royal, and that's all. 19 Q Oh, he was there while you were there? 20 A No. 21 Q No? 22 A He left. I left; and then, Roy came. 23 Q Oh, I see. Excuse me. Let's see. Dr. Gay, do you 24 remember him? 25 A Oh, yes, very well. 146 1 Q And his job was? 2 A He was director of the medical department. 3 Q During the - 4 A Whole time I was there. 5 Q Okay. How about Dr. Earhart? 6 A That doesn't ring a bell at all. 7 Q Did you ever meet John Hill? 8 A John Hill was working at the Pittsburg, California 9 plant as an industrial hygienist. And, yes, I did meet 10 him. He came to Midland once, I believe, and was there for 11 a couple of days; and that's the extent of it. 12 Q Do you remember him also being out at Rocky Flats at 13 some point? 14 A That could be. No. I don't remember that, but I 15 wouldn't be surprised. 16 Q How about a fellow named Hobbs, Farrell David Hobbs? 17 A I'm sure that I met him at one time, but I don't place 18 him. 19 Q Let's see. Donald Irish we spoke of earlier. 20 A He was director of the Dow Chemical research 21 department. 22 Q How about Wilbur Kittinger? 23 A No. 24 Q Dr. Leong, L-e-o-n-g, Basil K. Leong? 25 A Basil Leong worked at the -- worked for V.K. in the 147 1 toxicology group. 2 Q While you were at Dow? 3 A I think he was there when I was there. It was -- we 4 may have crossed paths. I am certainly aware of him since 5 that time. So, we may have been contemporaries for a year 6 or six months or something like that. 7 Q Was he a, you say, a toxicologist? 8 A Yes. 9 Q How about Don McAllister, what was he? 10 A Don McAllister was a toxicologist, and he was a guy who 11 did the writing of warnings on labels for Dow products. 12 Q Did you do any work on the label project? 13 A Don occasionally would ask the industrial hygiene group 14 how this stuff was handled in the plant and what the 15 consequences of overexposure were or something on that order 16 and I was one of those he asked and I had some input on a 17 few labels, not very many. 18 Q How about Kenneth Olson? 19 A Ken was in the tox lab and did the acute work, the - 20 he exposed the animals by ingestion. With ingestion, you 21 put a tube down into them. He exposed rabbit eyes and so 22 forth. He did that kind of stuff. 23 Q Let's see. Dr. Peterson is in here, too. 24 A Oh, my goodness. I know him well. 25 Q How about Ed Putnium? 148 1 A No. That name is not familiar. 2 Q Let's see. V.K. Rowe you spoke of. 3 A I know V.K. very well, and I know you have met him and 4 talked to him at length. 5 Q Indeed I have and quite enjoyed it, as well. Arnold 6 Shaffer? 7 A Shaffer. 8 Q Shaffer. 9 A He was the guy after Larry that we hired. 10 Q After Larry Silverstein? 11 A Silverstein, yes. The next guy was Arnold. Arnie and 12 Jackie were there for several years. Before I left, he got 13 involved with salespeople and wound up doing industrial 14 hygiene in the interest of sales. He spent several years in 15 Hong Kong, spent some time in Italy. I haven't seen Arnie 16 in years. I'm sure he is still around, but I don't know 17 where he lives or anything else. 18 Q How about Edward Schneider? 19 A Ed Schneider was one of the two employees that Harold 20 hired before me. He -- Ed was the first employee that 21 Harold had. 22 The next one was Jerry Clock. Jerry was there when I 23 was hired, and Jerry was asked to leave a few months later. 24 So, I was kind of a replacement for Jerry. 25 After me, the next one was Larry Silverstein and the 149 1 next was Arnie Shaffer, as I recall. 2 Q Okay. So, Mr. Shaffer was an industrial hygienist? 3 A Yes. 4 Q And Larry Silverstein was a - 5 A An industrial hygienist, -6 Q -- industrial hygienist? I get it. 7 A -- with a background in health physics. He was also a 8 health physicist. 9 Q How about John Staudt, S-t-a-u-d-t? 10 A The spelling sounds familiar, but I don't place him. 11 Q Okay. Let's see. Ted Torkelson, you said, - 12 A I have talked about Ted. 13 Q -- came in as a toxicologist? 14 A Yeah. We traded jobs for a while, six months, a year, 15 whatever. 16 Q Okay. He stayed for a while? 17 A Oh, yeah. He retired from Dow, oh, a few years ago, 18 five years ago, maybe. 19 Q How about a Paul Weaver? 20 A Paul Weaver? No. Doesn't ring any bells at all. 21 Q Milton Weinfield? 22 A No. No bells. 23 Q Mark Wolf? 24 A Oh, yes. Mark is a toxicologist. He and his brother, 25 Paul, worked on the toxicology group. Mark was involved 150 1 more with the kinds of things that Ken Olson was doing than 2 anything else, as I recall. He preceded Ken. And one of 3 the two brothers is dead now, and I don't remember which 4 one. 5 Q Do you -- did you ever hear of the Silica Safety 6 Association? 7 A No. 8 Q It's a Texas outfit. 9 A Never heard of it. 10 Q For some reason or another I am -- I have got a note 11 here connecting Mr. Weaver, Paul Weaver, and Milton 12 Weinfield with this Silica Safety Association back in, 13 roughly, the mid '70s. 14 A It could be. It means nothing to me. I left Dow, of 15 course, in '65. So that means nothing to me. 16 Q Well, fair enough. Okay. Mark Wolf was the last one. 17 You knew him. Did he publish a book, too, that you know of? 18 A He had his name on some papers. I don't know about a 19 book, though. 20 Q Moving over to the silica realm for a few minutes. 21 A Okay. 22 Q Let me hand you our Exhibit 530400 API and ask you to 23 take a look at that, Dr. Peterson. So that the suspense is 24 removed in the room, could you at least read what the title 25 of this paper is, if you can find it there? 151 1 A "API Toxicological Review - Silica," April, 1953. I 2 have never seen it before, if that was your question. 3 Q Well, that's what I was getting to. Would I be right 4 in thinking that you didn't even know that the API published 5 toxicological reviews? 6 A I think that's a fair approximation of my knowledge, 7 yes. 8 Q Okay. You might notice here on the cover it says this 9 was prepared at the Harvard School of Public Health; Boston, 10 Massachusetts, under the direction of Professor Philip 11 Drinker. 12 A Philip Drinker. My goodness. 13 Q You've heard of him? 14 A Oh, yes. I know who Phil Drinker was. 15 Q Do you want to just take a quick, hasty overview of 16 this and see if this -- if Dr. Drinker's work on silica 17 seems to be appropriate for that time period when you first 18 started plying your profession? 19 A This is done in a manner very similar to that of 20 "Hygienic Guides" that we have talked about. 21 Q Is it -- is it according to the new, improved Peterson 22 format for guides - 23 A No. 24 Q -- or the antiquated method? 25 A The antiquated method, of course. No. It's the same 152 1 kind of information. It isn't in the same format at all 2 that the "Hygienic Guides" were in. But, yeah, this seems 3 to be very appropriate; and I would expect that from Phil 4 Drinker. 5 Q Mr. Taylor, would like to look at that. 6 MR. JONES: Since he passed judgment on it, I 7 would like to have it attached as an exhibit. 8 (Marked Exhibit No. 530400API and is attached 9 hereto.) 10 MR. BLANKS: Well, certainly, Mr. Jones. I would 11 be only too happy to accommodate you. 12 MR. JONES: All right. Thank you. 13 Q (By Mr. Blanks) You have never seen this before, but 14 did you know that the API had a number of toxicological 15 reviews prepared by Drinker back in this era of the early 16 '50s? 17 A No. Afraid not. 18 Q Let me put another paper in front of you, sir. This is 19 our Exhibit 340209 EXXO and ask you to read the title on 20 that for everyone's benefit. 21 A "Standard Oil Company, (Incorporated in New Jersey), 22 Medical Safety Memorandum, Safeguarding Sandblasting 23 Operations." 24 Q What would the date be on that? 25 A The date is 1934. I don't see an author listed. There 153 1 may well be one, but I don't see it. This is a very 2 complete look at sandblasting. Oh, the authors are 3 something J. Denno, MD; and R.S. Bonsib, Chief Safety 4 Inspector. 5 Q Dr. Denno, was it? 6 A Yes. 7 Q Would -- having glanced through that and looked at the 8 table of contents, would you say that lays out a sensible 9 program for protecting workers engaged in sandblasting? 10 A Yes. 11 Q And as previously discussed, the general principles 12 covered and the methods for controlling the dust hazard are, 13 basically, the same ones that you used at Dow generally 20 14 years later and still recommend even 60 years later today? 15 A Sure. 16 Q Okay. 17 MR. JONES: Would you humor me and attach that as 18 an exhibit, too, Joe? 19 MR. BLANKS: Why sure, Mr. Jones. 20 MR. JONES: Thank you, sir. 21 (Marked Exhibit No. 340209 EXXO and is attached 22 hereto.) 23 Q (By Mr. Blanks) I'll -- let me. If you will, let me 24 put another booklet in front of you that I don't intend to 25 attach because it's well-known to the denizens of this 154 1 litigation but which is our famous Exhibit 370715 EXXO and 2 ask you, Dr. Peterson, if you have ever seen this brochure 3 entitled "Dust-producing Operations in the Production of 4 Petroleum Products and Associated Activities." And before 5 you go dashing past the cover page, you might note, just 6 coincidentally, who the author is and who authored the 7 foreward. 8 A The same two people, Roy S. Bonsib and Willard, it is, 9 J. Denno, MD; and, yes, I have seen this. 10 Q This would have been back when you were a young 11 industrial hygienist at Dow? 12 A No. The first time I saw this was in conjunction with 13 a trial in Donaldsonville, Louisiana, about three years ago. 14 Q Did you have a chance then to look at this booklet with 15 a little attention? 16 A Yes, I did. 17 Q This is described on the cover as being a "Medico 18 Safety Survey." Is that a -- it's not a terribly exact 19 term, but is that a fair description of what's contained 20 therein? 21 A It is, sure. 22 Q And am I right that Mr. Bonsib, it looks like, made a 23 survey of the pertinent literature that would deal with dust 24 hazards you might encounter in a petroleum plant? 25 A Yes, he did. 155 1 Q And actually caused some sampling to be taken in 2 connection with the different activities that he 3 discusses, - 4 A Yes. 5 Q -- which results he reports in the booklet, correct? 6 A Yes. 7 Q And most significantly, Mr. Bonsib lays out a program 8 for the control of the dust hazards, does he not? 9 A He is an industrial hygienist. We always do that, yes. 10 Q And discusses a medical monitoring program as part of a 11 good program? 12 A Yes. 13 Q All of this effort focused on the prevention of the 14 occupational disease, correct, sir? 15 A Yes, sir. 16 Q You certainly can look inside if you need to refresh 17 your memory; but among the topics discussed in some detail 18 within would be sandblasting, am I right? 19 A Yes. 20 Q And insulating work, as well? 21 A He mentions that. I recall that. That's what I was 22 interested in before. But I read the whole thing. So that 23 for 1937, this is a good piece of work. That's all there is 24 to it. He did a good job. 25 Q Would you flip over there to the back? I think there 156 1 are some acknowledgments given, if I remember it correctly; 2 and it may be the last page. 3 A The last page. Well, it could be. 4 Q There we go. 5 A Yes. We have them here. Oh, boy. 6 Q There are several people mentioned. Which of those 7 names do you recognize? 8 A I recognize W.P. Yant, Leonard Greenburg, R.R. Sayers, 9 A.J. Lanza, and that's it. I don't know the others. Never 10 have heard of the others. 11 Q All right, sir. And as to the ones you do remember, am 12 I correct in saying these were some of the leading lights or 13 the major figures in industrial hygiene in the years before 14 you got out of high school? 15 A That's right. Precisely. They were, those that I 16 recognize. I don't know about the others, but those I 17 recognize were. 18 Q And among those you didn't recognize, at least 19 according to Mr. Bonsib, Dan Harrington was affiliated with, 20 what, the Bureau of -- US Bureau of Mines? 21 A Yes. 22 Q An organization that was fairly active in industrial 23 hygiene matters during that era, correct? 24 A It was quite active, yes. 25 Q Why would they be in that field? 157 1 A Well, mines have all sorts of hazards but they were 2 particularly involved in the testing of respirators and gas 3 masks and so forth in their laboratory but they also were 4 involved in the control, particularly, of dust hazards in 5 mines. 6 Q And there is a Mr. - 7 A Barlow. 8 Q -- Barlow, Chief Engineer for Standard Oil Development 9 Company. I'm not sure what that is. And then, a Mr. 10 Blakeslee, who was he with? 11 A Department of Accident Prevention, API, New York. 12 Q And would it be fair to say that what Mr. Bonsib lays 13 out here in the -- in his booklet and in the conclusion 14 summary would represent the state-of-the-art for controlling 15 dust hazards in -- at the time this booklet was put out? 16 A Yes. 17 Q Thank you. Let me - 18 THE WITNESS: Do you want to see this? 19 MR. TAYLOR: I don't think so. 20 MR. ALMQUIST: He has already read it. 21 A I'm sure he has. 22 Q (By Mr. Blanks) -- share with you -- let me share with 23 you another piece of paper from the past, sir. This is our 24 Exhibit 450702 SHEL. The cover is kind of faded and was 25 probably green paper, if I remember, but this is titled 158 1 Shell Oil Company, Inc., "Carcinogenic Hydrocarbons and 2 Related Compounds - A Literature Survey"; and I'll fold that 3 back and hand it to you so you can see it a little more. 4 This was authored by a Mr. H.H. Zuidema. Is that name at 5 all familiar to you, Dr. Peterson? 6 A No, sir. I have never seen that name before. You know 7 how to spell Zuidema, of course? 8 Q I'll tell you that Bud Zuidema, as he was known, was 9 kind of the original Shell answer man, - 10 A Oh. 11 Q -- a chemist; and he would field customer questions in 12 the way that you men at Dow probably did from time to time 13 about products and toxicity or handling methods and that 14 sort of thing. 15 A We all did. 16 Q Flip back to the -- well, no. Take your time. I'm 17 sorry. Continue. 18 A I'm -- I'm getting there. 19 Q No. No. That's all right. 20 A Slow but sure. Where did you want me to go? 21 Q I was just going to point you to -- and did you note on 22 the front side this said, "This is a contribution of 23 information to members of the API Medical Advisory 24 Committee"? 25 A Yes, I noticed that. 159 1 Q Okay. An outfit that you never had anything to do 2 with? 3 A Not a thing. 4 Q Let me point you down here to this bottom paragraph 5 where Mr. Zuidema is talking about compounds reported as 6 having cancer-producing ability in 1945. Start down here. 7 A Yeah. Asbestos. 8 Q He does mention asbestos as a material that's been 9 mentioned, along with some others, correct? 10 A Along with aqueous potassium hydroxide and hydrochloric 11 acid, ethyl alcohol, glucose, fructose. Okay. 12 Q Does it surprise you to see asbestos mentioned as a 13 possible carcinogen in 19 -- in the 1945 literature review? 14 A It surprises me more to see fructose listed than to see 15 asbestos listed. 16 Q So, you are not surprised to see the asbestos? 17 A Yes. But I'm even more surprised to see fructose. 18 Q I knew you would be. 19 A I'm surprised it doesn't list water. 20 MR. BLANKS: Objection. Very nonresponsive. 21 Q (By Mr. Blanks) We are out of tape. We are out of 22 time, again. Take a quick breather, sir. 23 A Okay. I'll do that. 24 (After the break, the proceedings continued as 25 follows:) 160 1 Q (By Mr. Blanks) Let's tumble on here. The night is 2 young. Okay. Back on the record, Laura. 3 A It's working. Okay. 4 Q Well, I hope there is a tape. Oh, goodness. Let's 5 see. 6 (Interruption.) 7 Q (By Mr. Blanks) Let's see. We talked about labeling 8 at Dow and how your input would sometimes be enlisted, 9 anyway. The tox and IH and medical departments had some 10 contribution to make to labels in Dow products, right? 11 A Yes. 12 Q And the view was it was important to let the consumer 13 or purchaser know what the ingredients were and as much as 14 you could on a label about what they ought to do to handle 15 and use it safely, right? 16 A Yes. 17 Q And was it ever suggested at Dow that there was health 18 hazard information that you really didn't want to put on the 19 product, you didn't want the consumer or the customer to 20 know about? 21 A Never. We didn't keep any secrets at all about health 22 hazards. 23 Q Well, speaking as a health professional, I mean, would 24 that have been a reasonable thing to do, to withhold 25 information about the health hazards of your products? 161 1 A No. It doesn't do any good to try to do that, in the 2 first place. In the second place, it's just not the thing 3 to do. 4 Q Bouncing back to the TLV for a minute or two. 5 A And I'm glad you are keeping it in order. 6 Q Yeah. Well, keep you on your toes here. 7 A Of course. 8 Q Wouldn't you say that a decision to control dust just 9 to the TLV level is necessarily, also, a decision to subject 10 some percentage of a large work force to exposures that 11 could cause disease? 12 A Are you asking me if I would say that? 13 Q Yes, sir. 14 A I would say that the probability is that if you do as 15 you said, that is, hold things right at the TLV, that there 16 will be some evidence of disease in some fraction, small 17 fraction of the work force. That's a given. 18 Q Okay. And would I be right in thinking that if you - 19 A Well, wait a minute. Let me back up a little bit. 20 That is true for those materials for which the TLV relates 21 to hazard or injury. There are several TLV's and always 22 have been that have no relationship whatsoever to hazard or 23 injury. 24 For instance, the TLV for carbon dioxide, the TLV for 25 several of the freons and so forth. They are simply 162 1 representing good practice and nothing else. So that one 2 can't say that the TLV relates to toxicity at all. It just 3 simply does not always. Sometimes it does. 4 Q Okay. All right. But if we speak of things such 5 asbestos, silica, benzene, and I'm sure many others you 6 could mention, - 7 A I could. 8 Q -- but not all materials, that that proposition would 9 be true? 10 A Yes. 11 Q How would it be possible for an industrial hygienist to 12 say that workers with, say, an asbestos insulation material, 13 for example, or a sandblasting operation or a foundry 14 operation where you are having dust produced from some 15 pneumoconiosis-causing material, how can an industrial 16 hygienist know that there is a safe level of exposure in 17 that workplace if he doesn't do sampling of the air in that 18 workplace? 19 A He can't know without sampling. He can infer sometimes 20 on the basis of work he has done elsewhere or that other 21 people have done and have published. 22 Q If we think about the foundry workplace in general and 23 in particular in the workshops where men would clean the 24 castings, - 25 A May we back up a minute? 163 1 Q Sure. 2 A Are we talking about an iron or steel foundry or 3 aluminum foundry or a brass foundry? It makes a difference. 4 Q Okay. Let's assume a cast iron foundry where you might 5 be making fireplugs and that sort of product. 6 A Okay. 7 Q In the cleaning room, what would be the sources of 8 pneumoconiosis-producing dusts? 9 A Okay. In the first place, the areas where dust is 10 produced will be anyplace that the casting is moved, whether 11 it's moved on a roller conveyer, whether it's moved on a 12 shaker conveyer. Sometimes, if a rubber continuous conveyer 13 is operated precisely, you don't get much dust produced by 14 that. You get dust produced any time the casting is dropped 15 from the conveyer to something else. You get dust produced 16 any time you get a change in direction of the conveyer, to 17 turn a corner or something on this order. These are - 18 these are all dust-producing areas that, in general, in this 19 kind of a foundry need to be ventilated. 20 Q Now, how do you provide the ventilation for these kind 21 of areas? 22 A This -- it's an arcane art, really. Quite often, 23 people try to ventilate these areas by using overhead - 24 overhead hoods, canopy hoods. These don't work worth beans 25 for most of these areas simply because at this point in the 164 1 game the dust isn't that hot and it may not rise at all. It 2 may be at the behest of vagrant drafts that come through. 3 So that, quite often, the best kind of a hood is a side 4 draft hood that has an adequate control velocity at its 5 furthest reach, wherever the furthest point is that dust may 6 be produced. 7 But each situation really needs an expert analysis 8 either by an industrial hygienist or by one of the few 9 ventilation engineers who knows what he is talking about 10 before you can get adequate local exhaust ventilation. 11 Q And it's the mould sands on the casting that is the 12 source of the silica dust? 13 A It's either the mould sands or it's the core sand, one 14 or the two or both, that is going to cause you trouble. 15 Q Okay. Have you found harmful levels of dust around the 16 blast cabinets or tumbler-type cabinets that are used in 17 foundries, Dr. Peterson? 18 A Yes, I have. 19 Q Would it be accurate to say that the cleaning room is, 20 in all likelihood, the most hazardous place in the foundry 21 for dust exposures? 22 A In every foundry I have done an industrial hygiene 23 survey, that is true. 24 Q Is it practical to protect men working in such a 25 workshop where the cleaning is done, is it practical to 165 1 protect them simply with respirators? 2 A No. 3 Q Why would that not be so? 4 A In the first place, it's too hot. Almost always in a 5 cleaning room the temperatures are in excess of ambient, 6 even though the castings aren't red hot at this point in the 7 game; and they may well be red hot. Even if they aren't, 8 they are still warmer than surrounding air; and therefore, 9 things tend to rise. The air rises and carries the dust 10 right along with it. But that also means that there is 11 radiant heat hitting these people and they get hot and they 12 simply don't wear respirators. 13 I have seen situations where supervisors have 14 practically stood over people on a cleaning line with a club 15 trying to get them to wear respirators. They simply won't 16 do it. As soon as the guy's back is turned, the respirator 17 is off and around their neck or whatever. 18 Q And so, to expect a man to wear a mechanical respirator 19 throughout his 8-hour workday in such a workshop is just to 20 expect something that's not going to happen? 21 A Let me agree with that, if we can substitute a word or 22 a phrase for a word, an air-purifying respirator. If you 23 use a hood, an air-supplied hood, and I have seen this done, 24 too, this could be done successfully because the air coming 25 into the hood can be cooled and, in fact, the guy wearing it 166 1 may be more comfortable with the hood on than without the 2 hood on and, therefore, he will wear it, providing you can 3 make him more comfortable, and it's always men, never women, 4 in these situations, providing you can make him more 5 comfortable with respiratory protection than he would be 6 otherwise. 7 Q Okay. If we focus on a dust concentration in the air 8 at the level of the old TLV, 5 million particles per cubic 9 foot, for asbestos or silica, - 10 A Okay. 11 Q -- is that a level of dustiness that one can see with 12 the naked eye, Dr. Peterson? 13 A Under most circumstances, no, if we are talking about 14 respirable dust. 15 Q All right. 16 A The dust is too small to see. Under the right 17 circumstances, you can see far lower concentrations. That 18 is, under Tyndall illumination with a shaft of bright light 19 coming into a darkened room, you can see dust motes floating 20 around. 21 Q Do you really see the dust motes, or do you just see 22 the absence of light there? 23 A No. You see the dust motes themselves. And, I mean, 24 this technique is used in some spectroscopic method and 25 Tyndall was the guy who did it and was first named for 167 1 things in liquids rather than air but it's the same 2 process. You can see extremely low concentrations of dust 3 in the air with Tyndall illumination. But under ordinary 4 illumination, such as we have here, we could have 5 million 5 particles per cubic foot of respirable dust; and we would 6 never see it, except maybe a haze in appearance from here to 7 the far wall or something like that. 8 Q When did you acquire your knowledge that there was some 9 synergistic effect between asbestos inhalation and smoking 10 cigarettes? 11 A Sometime in the late '60s, early '70s. One of the 12 papers by Selikoff, I'm sure, was what clued me in. 13 Q If one were addressing the -- in a safety manual 14 questions about asbestos or silica, would it be a reasonable 15 warning to a workman to simply state that asbestos was an 16 irritant to the lung? 17 A No. I don't think that it's a reasonable warning to 18 say that asbestos is a carcinogen, either. I think that 19 what one has to say in a warning label is something to 20 remind the person of what he already knows, what he has 21 already been taught; and that is, that one wants to avoid 22 exposure to the dust of this material. The reasons for 23 avoiding the dust exposure should be part of education, and 24 a label is not part of education. A label is a mind jogger, 25 a reminder, if you will. 168 1 Q Okay. Back in the context of a workplace manual or 2 safety manual, would a statement that silica was an irritant 3 to the lung be adequate warning or instruction to a workman 4 who might have exposure? 5 A No. 6 Q Did you do any work on safety manuals while you were at 7 Dow? 8 A Not while I was at Dow. 9 Q Okay. Did they have safety manuals at Dow for the 10 employees in the plant? 11 A Yes. The safety department passed out a safety booklet 12 when you were hired and went through the safety department. 13 Q This would have been sort of a general handbook? 14 A Yes. Very general, talking about using side shield 15 safety glasses when they are required, when a face mask is 16 appropriate, and so forth. 17 Q Then, would there have been more specific manuals that 18 would apply to the particular units in the plant, as you 19 remember them? 20 A Not while I was there, that I recall. 21 Q So far as you know, the plant safety booklet was 22 prepared by the safety department and not by industrial 23 hygiene or medical or do you -- do you know at all? 24 A I don't know how it was prepared. I certainly had no 25 input to it. Let's put it that way. 169 1 Q Up to 19 -- they wait for me to start speaking. 2 A Of course. 3 Q Up to 1965, Dr. Peterson, when you left Dow, was there 4 any material in the Dow safety manuals or safety booklets 5 about dust hazards in the Dow plants? 6 A I don't think so. I could be wrong. It's been a long 7 time since I have read the safety manual I was given when I 8 was hired in '52. So, that could be; but I don't recall. 9 Q Okay. Well, we can certainly look in the book, if we 10 can find one? 11 A Yes. 12 Q You said in your earlier conversation with me that you 13 recognized Saranac Laboratory as at least having a good 14 reputation in the early 1950's; and then, we moved on to 15 something else. And I'm wondering, did you ever meet any 16 folks who worked there, like Dr. Vorwald, for instance? 17 A I met Dr. Vorwald but not while he worked there. I met 18 Dr. Vorwald when he was running the industrial hygiene and 19 toxicology programs at Wright State, and that was well after 20 his work at Saranac Lake. 21 Saranac Lab or Saranac Lake Laboratory or whatever they 22 called it had a reputation as being the only laboratory in 23 the country that had the facilities to expose animals to 24 dust in uniform concentrations. And, in fact, when we 25 talked about that, and we did talk about it, we weren't at 170 1 all happy with what they were doing but -- how they were 2 doing it but we didn't know how to tell them how to do it 3 better. 4 So, one of the projects that perennially occurred in 5 the industrial hygiene lab was how to achieve a standard, 6 repeatable dust concentration in a volume of air; and we 7 never did get a good answer to that. 8 Q Did there come a time when you learned that silica was 9 a suspected human carcinogen? 10 A Yes. 11 Q Roughly, how long ago was that? 12 A About two years. 13 Q Had you ever suspected that as a possibility earlier? 14 A No. 15 Q As in terms of controlling or, yeah, controlling the 16 potential exposures in the workplace, whether it was or was 17 not a carcinogen, wouldn't have affected your efforts as an 18 industrial hygienist, would it? 19 A No. 20 Q Your aim would have been to get the exposure down as 21 low as practical, in any event, right? 22 A That's right, precisely. 23 Q On the topic of carcinogens and TLV's, wasn't it the 24 case that TLV's were not set at levels intended to or to 25 deal with cancer risk? 171 1 A That's in general true until we get into the late '70s 2 and '80s; and then, the ACGIH TLV committee started dealing 3 with cancer as a possibility. 4 Q So, if we are looking at asbestos or silica back in the 5 '40s, '50s, '60s, the TLV was not intended to protect from 6 possible cancer exposure? 7 A No, not directly. Most of us at that point in the game 8 didn't think that asbestos was a carcinogen. There were a 9 few who did; and those who did were just certain when they 10 published this, in the many articles that I've read, that if 11 you could avoid silicosis, you would avoid cancer. And the 12 TLV was designed to avoid silicosis. So, if they took that 13 step, they would say, okay, the TLV would prevent cancer. 14 MR. JONES: Excuse me. You said "silicosis." Did 15 you mean "asbestosis"? 16 A I'm sorry. I meant asbestosis. If I said silicosis, I 17 was wrong. It was asbestosis. 18 MR. BEASON: Thank you. 19 Q (By Mr. Blanks) So, how is it - 20 MR. BLANKS: And then, I have to object to the 21 responsiveness of the answer. 22 A Okay. 23 Q (By Mr. Blanks) How is it -- how is it that you can 24 say that most of us, as in, I suppose, most of us industrial 25 hygienists, didn't believe that asbestos could cause 172 1 cancer? In the first place, what time period are you 2 referring to? 3 A The '50s and '60s. Until the advent of the Selikoff 4 presentation that we have talked about in 1964 from the 5 animals or for the New York Academy of Science and whatever 6 Academy of Science, I -- there were very few of my 7 colleagues who felt that asbestos was a carcinogen. 8 Q Did you base this on some survey you made or what? 9 A No. Just the talk that we had amongst ourselves and 10 the fact that when the Selikoff data became known in 1965, 11 it was regarded as being shocking by everybody I talked to 12 about it. 13 MR. JONES: Excuse me. You said "silica" again. 14 THE WITNESS: I did? I'm sorry. 15 MR. BLANKS: No. He said "Selikoff." 16 THE WITNESS: I said "Selikoff." 17 MR. JONES: Selikoff. I'm sorry. 18 MR. BLANKS: Listen up back there. 19 MR. JONES: I can't hear over your hammer. 20 Q (By Mr. Blanks) So, don't you know that Dr. Lanza in 21 his 1938 book on silicosis and asbestosis listed cancer as a 22 suspected sequelae of asbestosis? 23 A No. 24 Q And - 25 A But even if I had, again, the TLV was set to prevent 173 1 asbestosis. So, if you prevented asbestosis, you prevented 2 the cancer that could come about as a result of asbestosis. 3 Q And don't - 4 MR. BLANKS: I object to the responsiveness of 5 that last sentence. 6 Q (By Mr. Blanks) And don't you recall that Dr. Hueper 7 in his 1940 text on occupational tumors targeted asbestos as 8 a probable cause of cancer? 9 A No. 10 Q Do you not remember the 1945 editorial in JAMA, 11 "Journal of American Medical Association" that raised 12 asbestos in connection with lung cancer? 13 MR. TAYLOR: It was '49. 14 A I remember seeing or reading such an editorial but it's 15 been too long ago and I certainly can't associate a date 16 with it. Was that one that Hueper wrote? 17 Q (By Mr. Blanks) No. I think it might have been Morris 18 Fishbein. Certainly, he was the author in 1949 of another 19 editorial. 20 A I remember a couple of things that Dr. Hueper wrote, 21 one in the '50s where he said that cigarettes were not 22 carcinogenic, cigarette smoke was not; and another one where 23 he said that aniline was. And it turns out that he was 24 wrong in both instances. Nobody is right all the time, even 25 a Skeepers or a Hueper or a Peterson. 174 1 Q Let me share with you a little treasure here from 1948 2 that is our Exhibit 481122 API; and I hand you a copy there, 3 Dr. Peterson. This was a memorandum of November, 1948, a 4 subject paper read by Dr. W.C. Hueper on the subject of 5 occupational cancer before the APHA. And it's in the form 6 of a letter to or a memo to Dr. Woody, whom I'll represent 7 to you, sir, was a company doctor with Standard Oil Company 8 of New Jersey back in this era. 9 A Okay. 10 Q Do you want to look further? It's more interesting 11 than just the first page. Look who wrote the memo. Do you 12 recognize the name of the author? 13 A Clyde Berry. Yes, I know Clyde quite well. 14 Q Yes, sir. 15 A In fact, people have mistaken the two of us when they 16 look at us from the rear. Our heads look the same. 17 Q I see. 18 A I'm a little taller than Clyde, but I have been called 19 Clyde many times by our peers. 20 Q Well, I think that's not an insulting 21 misidentification. Have you ever seen this Clyde Berry memo 22 of 1948? 23 A No, I never have. 24 Q You note that he reports on a paper given by Dr. Hueper 25 before the industrial hygiene section and subcommittee on 175 1 medical care of the American Public Health Association, 2 correct, - 3 A Yes. 4 Q -- back in Boston in '48? Now, this is the same 5 Dr. Hueper you were speaking of a moment ago, correct, - 6 A Yes. 7 Q -- the Chief of the Environmental Cancer Section, - 8 A Yes. 9 Q -- National Cancer Institute? And you know Clyde Berry 10 in later years went on to the University of Iowa as a 11 professor? 12 A Yes. 13 Q But during the late '40s and I think early '50s was the 14 industrial hygienist with Standard Oil in New Jersey? 15 A I didn't realize that. 16 Q Well, I'll tell you that that's true. At least, he 17 admits to it. 18 A No. That's fine. I have no objection. I just didn't 19 happen to know it. 20 Q Okay. In this memorandum, Dr. Berry mentions recent 21 evidence in the second paragraph there and pointed out a 22 definite correlation between cancer incidents and exposures 23 to ultraviolet radiation, asbestos, benzol, and it goes on 24 with some other things here. You may comment on them, if 25 you wish. 176 1 A Certain -- "certain organic amines" refers to aniline 2 in this context, and it's wrong. 3 Q Okay. 4 A I'm sorry. At this point in the game, Dr. Hueper 5 believed that aniline was a cause of bladder cancer. 6 Q All right. 7 A He was wrong, but that's fine. 8 Q Okay. Read what the suggestion is for an idealized 9 approach to the control of the problem and - 10 A Well, one, "One first evaluates the carcinogenicity of 11 suspected compounds and materials through animal 12 experimentation." I have talked about that. 13 "Investigate vital statics records for cases of cancer 14 and trace the employment history of these individuals. In 15 certain instances, it might be necessary to employ Social 16 Security records and so forth." In other words, do the kind 17 of epidemiological study that most epidemiologists do. They 18 count dead bodies. 19 "In cases that the foregoing provides evidence 20 pointing to an unusual incidence of cancer in certain 21 industries, the plant records of that industry will be 22 investigated to determine what quantities and exposures 23 within that industry produces a higher incidence of 24 cancer." 25 Gee, this is exactly what I said to do, isn't it? 177 1 Q All right. Yes. Yes. 2 A "Medical diagnostic procedures must be proved as a 3 great many cases are being --" 4 Q Improved? 5 A Improved, I'm sorry. "-- as a great many cases are 6 being missed at the present time." Well, that's a guess. 7 Q You don't -- you don't really disagree with that - 8 A No, I don't. 9 Q -- proposition, though, do you? 10 A Not at all. I -- one of the things that I have found 11 in my investigation of epidemiological studies is that one 12 of the things that is absolutely necessary, particularly 13 when one is talking about cancer, is what cellular type the 14 cancer originates in. Things that are called lung cancer 15 but actually originate in the brain and the kidneys are not 16 lung cancer. That's metastasis. So that this is one of the 17 areas where the pathologist must get involved, as well as 18 the physicians. That may be said in here as we go on. 19 "Initiate preventive measures as soon as possible 20 since the identification of the offending agent is not 21 necessary. Industrially, the approach would be as follows" 22 and that's -23 Q Now, let's pause with that Paragraph 5 a second. Am I 24 right -25 A Yeah. 178 1 Q Well, we don't know exactly what Mr. Berry thought; but 2 do you get out of that statement in Paragraph 5, "Initiate 3 preventive measures as soon as possible since the 4 identification of the offending agent is not necessary," is 5 that saying to you that you don't have to know exactly what 6 it is about the material that is necessarily causing the 7 cancer, you just need to have your suspicion sufficiently 8 aroused that there is probably some connection or possibly 9 some connection? 10 A That appears to be Clyde's interpretation of what 11 Dr. Hueper said. 12 Q Okay. 13 A I don't think it's Clyde's opinion, and it certainly 14 isn't mine. 15 Q Okay. 16 A But that I would suspect that Dr. Hueper thought this 17 way. That's fine. 18 Q Okay. Now, as a practicing industrial hygienist at 19 Dow, trained by the Dow people, it wasn't your approach to 20 wait until you had every bit of positive evidence and as 21 high a degree of certainty as you could get before you would 22 take preventive steps to try and cut down exposure, was it? 23 A No. I've talked about what our approach was, and it 24 wasn't that. 25 Q Right. So, this is consistent with that, isn't it? 179 1 A Well, let's -- let's talk about that for a minute. I 2 have mentioned aniline and bladder cancer. Aniline was used 3 and, in fact, is used today as the basis for dye stuffs. 4 Many dyes are based on aniline. 5 One of the first things that one does with aniline to 6 make dyes or one used to do was to make benzidine, which is 7 almost like dye aniline. It's two aniline molecules hooked 8 together. 9 Benzidine is a solid. Aniline is a liquid. Benzidine, 10 as its turns out, is a carcinogen. Aniline is not. But 11 Dr. Hueper and others were calling these bladder cancers 12 associated with dye production aniline cancers. Now, if we 13 had expended a great deal of time, effort, and energy 14 controlling exposures to aniline, we would have missed 15 controlling exposures of the carcinogen itself, benzene, 16 which is in a different step of the process. 17 So, in my opinion, it does help immensely to know 18 precisely what the carcinogen is, not simply that there is a 19 carcinogen present in a process, no. 20 Q Well, how did the people dealing with the aniline act? 21 What did they do to protect the workers there? Just try and 22 isolate the workers from the chemicals in the whole process? 23 A Yeah. 24 Q And did it work? 25 A No. 180 1 Q No? 2 A The -- the thought was that aniline was causing the 3 trouble. And if you run into aniline in this portion of the 4 process and downstream here you've got some benzidine that's 5 isolated and you protect these workers, these guys are still 6 going to get the bladder cancer, the ones downstream who are 7 exposed to the benzene, the true carcinogen. 8 So that you can't just throw out something at it and 9 say, "Well, we'll spend a billion dollars here and isolate 10 this whole darn process because some phase of it may cause 11 cancer." But the problem is that unless you know what the 12 carcinogen is, all you can say is that cancer is associated 13 with the production of dye. 14 But, gee, maybe it's the dyes themselves that are 15 causing the cancer. In such cases, these shouldn't leave 16 the plant and go out for things that -- clothing to be dyed, 17 for instance, for people to wear. You have got to know what 18 you have to control because we don't have unlimited 19 resources to control anything. 20 Dr. Hueper's approach is go ahead and control and 21 control and control and you never find out what's going on 22 and that's not right. It just doesn't work. And I can't 23 think of a better example than aniline and aniline cancers. 24 But another example might be the business of cigarette 25 smoke and exposures to asbestos and the fact that the two of 181 1 them go together to be more dangerous, particularly in 2 causing cancer, than either one alone. You don't find that 3 out without investigation. You don't simply say, I'm going 4 to control all exposures to asbestos down to the last gnat's 5 eyelash so that never any gets into the air; but you find 6 out that those people who smoke are the ones who are most 7 likely to get lung cancer from their exposures to asbestos. 8 And then, you have got something to beat them on the head 9 about, not only control their exposure to asbestos but to 10 control their smoking and try to in that way get at the 11 whole problem, not just a portion of it. 12 So, the more knowledge we have, the better; and I'm 13 really against -- philosophically, I'm against the idea of 14 going out and controlling for the purpose of controlling. I 15 want to know what's going on. I would say interject in this 16 process the animal experiments that are necessary to find 17 out precisely what is happening with any of the materials 18 you are running across; and once you find out with your 19 animal experiments that this is a carcinogen, which is what 20 happened with aniline, that benzidine was the carcinogen, 21 not aniline, then you can pinpoint your control and do 22 things right. 23 You may be able to bypass benzidine in the process of 24 producing the dyes and, in fact, that can be done and is 25 done all the time. You never isolate it. 182 1 That's a lecture. I shouldn't lecture. I'm sorry. 2 Q Well, and indeed, the evaluation through animal 3 experimentation is the first item listed in Mr. Berry's 4 memo, isn't it? 5 A It certainly is, but it is obviated by this No. 5 that 6 you go ahead and control before you know anything. 7 Q Well, what are you going to do? Are you just going to 8 wait until you have got the epistudy from 20 years later or 9 10 years later? 10 A You can get results from an animal study in six months, 11 some results, preliminary results anyway. You don't have to 12 wait for years for an epistudy. You use an epistudy along 13 with the animal work and along with industrial hygiene to 14 say that people are like rats or monkeys or guinea pigs or 15 whatever and that they also get cancer because just because 16 a rat gets cancer doesn't mean a human is or vice versa. 17 So, animal work can provide us with some answers but not 18 all, unfortunately. 19 Q Okay. So, Mr. Berry is saying in here, initiate 20 preventive measures as soon as possible? 21 A He is saying that Dr. Hueper said that. He isn't 22 saying that himself. 23 Q Okay. Fine. And then, he goes on to list five, six 24 specific suggestions or principles? 25 A Sure. 183 1 Q And I think have you had a chance to look at those? 2 A No. 3 Q I don't think they are much different from what you 4 have been telling me. 5 A No. They would be about what I said. These are 6 industrial hygiene principles that he is outlining. That's 7 fine. 8 Q And in Paragraph 6, as he mentioned, medical control 9 programs including following the worker throughout a latent 10 period of 15, 20 years, correct? 11 A I think that's an advisable thing, particularly when 12 one suspects cancer. 13 Q And then, some other proposals for government 14 inspection and standards and so forth that we didn't really 15 see for another 20, 25 years, correct? 16 A Yes. 17 Q Okay. And you would agree, wouldn't you, that this 18 memorandum that Mr. Berry did, again, lays out the basic 19 principles and state-of-the-art for industrial hygiene as it 20 was in 1948? 21 A As espoused by Dr. Hueper, yes. 22 Q As per Dr. Hueper? Well - 23 A But he is reporting Ed Hueper. He is not -- this isn't 24 his own stuff he is reporting. 25 Q No. But the matters reported here, the content. 184 1 A Represent state-of-the-art, yes. 2 Q Okay. 3 A They do. I'll go along with that. 4 Q All right, sir. Now, we've got Mr. -- Dr. Fishbein's 5 1949 editorial that Mr. Taylor was mentioning. Is this 6 something you have seen before, sir? 7 A I'm sure it is, if I can open it up. Well, this is 8 part of an editorial, anyway. "Asbestosis and Cancer of the 9 Lung," that's what you referred to? 10 Q Yes, sir. 11 A And I've talked about this, too, that those people who 12 believed that asbestos could cause cancer felt you had to 13 get asbestosis first and that that lead to the cancer and, 14 therefore, if you could prevent the asbestosis, you would 15 prevent the cancer. 16 Q And the reasons that we are -- at that time, 1949 and 17 earlier, we were discussing asbestosis and cancer of the 18 lung had to do with, what, the intensity of the exposures 19 that would have been prevalent at that time - 20 A Why, sure, of course. 21 Q -- sufficient to cause asbestosis within -- before the 22 man developed lung cancer? 23 A Well, nobody, even Dr. Fishbein, said that lung cancer 24 was a necessary sequelae of asbestosis. What they were 25 saying is that if you have got a good case of asbestosis, 185 1 your chance -- your chance of having lung cancer is 2 increased quite a lot. That's fine. I -- there is nothing 3 wrong with that. It's a good conclusion to draw. 4 But as an industrial hygienist, my job is to prevent 5 the asbestosis in the first place. I don't care whether it 6 will cause lung cancer if you get asbestosis, if I can 7 prevent the asbestosis. 8 MR. TAYLOR: And, Joe, just for the record, this 9 is the -- this is the Hueper editorial. It's -- Fishbein is 10 11 MR. BLANKS: Sure. 12 MR. TAYLOR: This is Hueper's editorial. Fishbein 13 is just the editor of the journal. He didn't write this 14 particular editorial. He says -- my understanding is this 15 is one that was written by Wilhelm Hueper in '49. So that 16 is the one I was referring to. 17 MR. BLANKS: Well, okay. 18 MR. TAYLOR: I mean, Fishbein is the editor of the 19 journal; but he is not, as I understand it, generally 20 regarded as the author of the editorial in '49 on 21 "Asbestosis and Cancer of the Lung." I think it's 22 generally regarded that Hueper wrote this, but we can let 23 the experts talk about that. 24 MR. BLANKS: Who is more expert than we? 25 MR. TAYLOR: What do you mean? 186 1 MR. BLANKS: Well, I am not here to argue that 2 with you one way or the other. 3 A It's immaterial for our purposes, anyway. We don't 4 care who wrote it. I don't care. 5 Q (By Mr. Blanks) Well, that's true. We know that there 6 the Journal of American Medical Association in August, 1949, 7 Volume 140, among other things, did discuss cases reported 8 of asbestosis and cancer of the lung from the US and Germany 9 and elsewhere. 10 A Yes. 11 Q Did you ever make the acquaintance of Charlie Hine from 12 Shell? 13 A Yeah. In fact, I have almost got embroiled in a joint 14 consulting effort with Charlie Hine. It never worked out 15 that way. We did talk on the phone a couple of times, once 16 I was able to get through to him, which is a very difficult 17 thing to do; but we never got together in person to work on 18 the project, whatever it was. And I've forgotten what it 19 was now. 20 Q A long time ago? 21 A A long time ago. 20 years, maybe. 22 Q Did you meet him at the AIHA activities? 23 A I may well have because I have a picture in my mind of 24 what he looks like. And so, I probably had met him; but I 25 couldn't say when or what the circumstances were. 187 1 Q Well, let me share with you a little piece of work that 2 Dr. Hine did under the letterhead of Shell Development 3 Company in April of 1950, our Exhibit 500428 SHEL, and ask 4 you if you have ever laid eyes on that before. 5 A No. I have never seen this. 6 Q The title of this is "Certain Problems of Environmental 7 Cancer in the Petroleum Industry." 8 A Yes. And I have not seen this. 9 Q This will -- just to satisfy your curiosity, why don't 10 you flip over to the last page, which has Table 2 on it, 11 Page 2. 12 A Uh-huh. 13 Q And do you see down where he talks about lungs, 14 pneumoconioses as a precancerous lesion with asbestosis? 15 A This -- this was the thought at the time. 16 Q All right. 17 A That's fine. In fact, it's the thought of many 18 today -19 Q Yeah. 20 A -- that lung cancer is associated with asbestosis, not 21 with the minor exposures that may result in mesothelioma. 22 Q And, again, shows the etiological agent or causative 23 agent is asbestos over in the right column? 24 A Yes. 25 Q So, this work by Dr. Hine, which was also sent around 188 1 like Dr. Berry's memo to the members of the American 2 Petroleum Institute, seems to you to be what you would 3 expect to find from toxicologists looking at these issues 4 during the 1950 era? 5 A Yes. 6 Q Let me -- well, I thought this was from your AIHA 7 quarterly. I don't have that one. This is actually a 8 publication from 1954, "Current Safety Topics in the 9 Petroleum Industry as Presented in Sections of the Petroleum 10 Section of the 42nd National Safety Congress." 11 Now, that -- the National Safety Congress would be the 12 name of the annual meeting such as you once attended 13 somewhere along the way? 14 A Yes. 15 Q Okay. Did you ever meet a gentleman named Art Pabst 16 from Socony or Mobil? 17 A No. I don't believe so. 18 Q Okay. Well, let me share with you Mr. Pabst's article 19 or paper as presented at the National Safety Congress 20 entitled "Industrial Hygiene in the Petroleum Industry"; and 21 I know Dow wasn't, strictly speaking, in the petroleum 22 industry. 23 A No. Dow was not in the petroleum industry at all. 24 Q Except peripherally through Dow Well Company? 25 A Yes. 189 1 Q But in many respects the -- from an industrial 2 hygienist's standpoint, the plants, the refinery is not 3 extremely dissimilar from a chemical plant, is it? 4 A Oh, no, not at all. The person who isn't aware of 5 what's going on would be hard put to distinguish one from 6 the other simply by walking by or driving by or whatever. 7 Q Hey, and let me ask you to -- take your time, but if 8 you want to flip over there -- well, just take your time. 9 This is a great article by Art Pabst. 10 A It is a good explanation of industrial hygienists and 11 safety people. It really is. He did a good job. 12 Q Okay. You ought to see the Van Hendricks article he 13 knocked it off from. 14 A That doesn't surprise me, either. 15 Q I'm sorry. I don't have that one with me. 16 A Oh, for shame. 17 Q I'll send it to you. But, once again, we see a 18 discussion of safety departments, hygiene, medical 19 departments, toxicology issues, means of exposures, same 20 kind of problems that you and your colleagues were dealing 21 with at Dow in the 1950's, correct? 22 A Sure. Absolutely. 23 Q If you look over there onto -- well - 24 A I can't read the page. 25 Q It's the page where the yellow flag is tabbed, I 190 1 think. 2 A The page before this. We were having a little 3 discussion of toxicity and toxic. I notice that he lists 4 asbestos as a respiratory irritant and not a toxic material. 5 Q Different semantics, isn't it? 6 A It's semantics. That's right. And it's how one is 7 using the term and when and where. That's fine. 8 Q Well, let's look on that page there. Mr. Pabst lists, 9 "A few of the materials commonly encountered in the 10 petroleum industry are listed below." He has got gases and 11 vapors. We see about eight or nine items there. 12 A Yes. 13 Q And would I be right in thinking that many, if not all 14 of those, you might encounter in a chemical plant, as well? 15 A Absolutely. 16 Q And then - 17 A With the possible exception of octane. 18 Q Yeah. I thought that myself. 19 A When -- well, you encounter gasoline, obviously, but 20 not octane. 21 Q Octane is what? That's not the tetraethyl lead stuff, 22 is it? 23 A No. No. No. Octane -- there are two ways the word is 24 used. One is for the normal octane, which is a straight 25 chain aliphatic hydrocarbon containing eight carbon atoms. 191 1 That's where the "oct" comes from. 2 The other one refers to isooctane, which is -- it has 3 eight carbon atoms, but it's branched. And isooctane has an 4 octane rating of 100 in an engine. Octane itself has a 5 rating of close to zero. It pings very easily. 6 Q And then, in addition to -- thank you. 7 A I have a fund of useless information. 8 Q As I have, perhaps, a fund of useless questions, they 9 might say. 10 A I wouldn't say a thing like that, Joe. 11 Q Thank you. Mr. Pabst also lists toxic dust fumes and 12 mists and this shows - 13 A This is from a TLV list. That's the way he took this 14 thing, yes. 15 Q Okay. And then, under mineral dust, he lists asbestos, 16 correct? 17 A Yes. 18 Q And "nuisance dust" meaning that without any free 19 silica in it? 20 A Yeah. Well, actually, it was less than five percent 21 but that's good. 22 Q Okay. And then silica? 23 A Yeah. 24 Q And would you think that as well as being commonly 25 found in the petroleum industry, these materials would also 192 1 be commonly encountered in chemical plants in the mid 2 1950's? 3 A In the same way they would be encountered in the 4 petroleum industry, yes. 5 Q All right, sir. And, regrettably, we don't have 6 Mr. Van Hendricks. 7 A That's a name that's familiar to me, but I don't know 8 why. 9 Q It's Nathan Van Hendricks; and he was Standard Oil of 10 New Jersey, later Exxon. 11 A Okay. I -- I met him in that position. I was 12 introduced to him by Dick Brief or somebody, but I worked 13 with him. 14 Q You surely would have run into him at the AIHA meetings 15 somewhere along the way? 16 A Sure. Undoubtedly. 17 Q Okay. At any rate, I don't suppose you remember having 18 seen Mr. Pabst's paper before I've handed it to you today? 19 A No. Never. 20 MR. TAYLOR: I would like to get that marked as an 21 exhibit, if we could. 22 MR. BEASON: Oh, you would? 23 MR. TAYLOR: Yes. 24 MR. BLANKS: Well, give it here. 25 MR. TAYLOR: Thank you. 193 1 MR. BLANKS: Let's see. Well, as it is now, this 2 is marked as 540000 NSC. Although, out of fairness to 3 Mobil, we probably should label it here 540000 MOBI. 4 (Marked Exhibit No. 540000 MOBI and is attached 5 hereto.) 6 Q (By Mr. Blanks) Well, let's visit this question of 7 toxic and toxicity. I know you have just been anxious to 8 clarify that for me. So, tell me what you mean when you use 9 the word "toxic" and when you speak of "toxicity." 10 A I prefer to define "toxicity" rather than "toxic." 11 Q All right. 12 A "Toxicity" is a property of matter. It is a property 13 of matter in much the same way that mass is a property of 14 matter, in that each is an extrinsic property of matter, 15 which simply means that the expression of mass or of 16 toxicity depends upon how much of the stuff you've got. 17 In toxicity, it's how much you get in the body. In 18 mass, it's how much you can weigh, if you will, or 19 determining the inertia of or whatever. 20 Toxicity is the ability of the material to injure a 21 living organism by other than mechanical means. Now, if 22 you'd get a copy of my book, you would find that in there in 23 those words. 24 Q I promise. I'm going to buy the book. Every used 25 bookstore I go into, I look for your book; but it's so 194 1 popular, nobody gets rid of it. 2 A That's right. You might find it from one of Jim 3 Hammond's former students perhaps. He used it in his 4 teaching. 5 Q Okay. The ability to injure an organism - 6 A A living organism. 7 Q -- by other than mechanical means? 8 A Yes. 9 Q Now, for a while it was thought that the asbestos 10 fibers inhaled into the lung injured the body via mechanical 11 means, am I right? 12 A That's correct. Absolutely. In fact, there are people 13 who say that today; but that's -- that's part of the process 14 of injury. 15 Q Okay. But our knowledge has gone beyond that idea, 16 hasn't it, by - 17 A But it goes beyond it and comes back. We don't know 18 today how asbestos causes cancer. We don't. We don't know 19 how it causes -- well, we have an idea about asbestosis; and 20 that's probably the mechanical injury more than anything 21 else. 22 Q Okay. So, if we don't believe that asbestos acts on 23 the body by some means other than mechanical means then, by 24 your definition, it would not have toxicity? 25 A Right. 195 1 Q Okay. Now, from the way you've talked today and 2 before, I suppose you would say that any substance has 3 toxicity if you do something with enough of it? 4 A If you get enough of it. You can kill yourself by 5 drinking water, if you want to do so. 6 Q Can you really? 7 A Yes, you can. 8 Q How do you - 9 A About 20 years ago -- what happens, if you eat nothing, 10 just drink water, lots of water, as much as you can hold all 11 the time, you wash the electrolytes out of your body and you 12 die. 13 Q Well, what if you eat and drink as much water as you 14 can drink? 15 A Then you get electrolytes. 16 Q Sir? 17 A If you eat, you get electrolytes. Then, you replace 18 what you are trying to wash out with the drinking. 19 Q Okay. 20 A But there were cases about 20 years ago, two cases in 21 England of people who committed suicide by eating nothing 22 and drinking water, lots of water. A horrible way to die. 23 But, nevertheless, it was done; and it can be done. 24 Everything is toxic. Everything. 25 Q So, if the word applies to everything, then what good 196 1 is the word to us in describing the materials that 2 industrial hygienist need to control? 3 A An industrial hygienist may need to control anything or 4 everything. If people are getting too much of whatever it 5 is, it's the industrial hygienist's job to control it. 6 Industrial hygienists work with hazard, which is the 7 likelihood of injury. 8 Toxicologists work with this property of toxicity. 9 They determine the toxicity of materials, the extent to 10 which they are toxic. 11 Industrial hygienists determine the hazard of the 12 materials, the likelihood of injury from exposure to the 13 stuff, and then try to figure out ways of controlling the 14 exposure so that the injury does not occur. 15 Q Well, now, does the word, the adjective "toxic" have 16 any meaning for you? 17 A Just as a component of toxicity. It's the adjective 18 for the noun "toxicity," yes. 19 Q So, does it mean anything to talk of a material as 20 being toxic? 21 A No. 22 Q No? 23 A No. That's -- it's like people talk about heavy metal 24 toxicity. What is a heavy metal? 25 Q It's a band, isn't it? 197 1 A It's a meaningless term. It's a band, yeah. But it's 2 a meaningless term because what they are talking about is 3 the toxicity of metals. I don't care whether they are heavy 4 or not. How do you define heavy? Is it heavy to feel in 5 your hand? Does it have a high atomic weight? What do they 6 mean by heavy? They don't ever say. So that it's a 7 meaningless term. Just as a toxic metal, it's a meaningless 8 term because all metals can be toxic under the right 9 circumstances or the wrong circumstances. 10 Q Okay. So, when you visit with your toxicologist about 11 the toxicity of a material, what you want to know is what? 12 How much of it it takes to have an effect? 13 A Yes. And what effect we are talking about. And we 14 talk about LD 50's, the lethal dose in 50 percent of the 15 animals. We talk about LC 50's, for a certain exposure that 16 was a lethal concentration that would kill 50 percent of the 17 animals in so many hours. We talk about LD 0's and LD 99's 18 and LD 1's and so forth. 19 These are quantitative expressions of toxicity, and 20 each is useful in its own right. And we can use this kind 21 of information, "we" being industrial hygienists, to help us 22 decide how we are going to control this stuff, whatever it 23 may be. 24 For instance, we can use data developed on oral 25 exposure, whether it's acute exposure or chronic exposure, 198 1 of materials that are solids to predict the toxicity of that 2 material from inhalation because if the stuff is big enough 3 to see and you inhale it, it winds up in your stomach just 4 as if you had chewed it. So, the oral route with the 5 animals tells us quite a lot about the inhalation route of 6 some kinds of materials for people. 7 And I heard on the radio as I was coming down here 8 today that a couple of governmental agencies have decided 9 they are no longer going to go to animal experiments, which 10 I think is the most ridiculous thing in the world. There 11 are things that animals can tell us that you can't develop 12 with a computer program, which is what they are talking 13 about using instead. 14 Q Animal rights, huh? 15 A Yeah. That's right. 16 Q Okay. Now - 17 A I told you I was a toxicologist. You tapped the wrong 18 drum. 19 Q I guess so. So, in assessing the likelihood of injury 20 from an exposure, what do you do with the toxicity 21 information? 22 A Well, suppose that the exposure we are talking about is 23 an exposure to aniline. We measure the exposure that people 24 have, and we compare that to the exposure that will cause 25 injury. And if the exposure is greater than that that we 199 1 know can cause injury to animals, we say, "Hey, these people 2 might be injured, too." And we do our best to control 3 exposures to well below those that can cause injury. 4 The complication in this whole thing is when we talk 5 about acute and subacute and chronic exposures; and it is 6 far more difficult to evaluate chronic exposures and the 7 concentrations that cause injury upon chronic exposure than 8 it is for acute exposures, meaning short term or single 9 dose. 10 Q Okay. All that sounds good in principle. Now, how do 11 we relate that to the problem we are here on today? 12 A Well, the fact of the matter is that our first 13 information about the ability of asbestos to cause injury, 14 the first quantitative information we have was developed in 15 animal experiments. So that we could use that kind of 16 information to help tell us that this stuff can do this sort 17 of thing. 18 The epidemiology, as exemplified by the Dreessen 19 report, "Epidemiology and Industrial Hygiene," told us what 20 kind of exposures can cause that kind of injury. I mean, 21 theoretically, that's the way one can do it. 22 Of course, we knew that overexposure to asbestos can 23 cause asbestosis well before the Dreessen study was done; 24 but animal work could have done exactly the same thing 25 without exposing people at all. So, that's the ideal way to 200 1 do it. Do the animal work first and then know what you are 2 trying to control. 3 Q Well, isn't that what Owens Illinois was having done 4 with Kaylo up at Saranac? 5 A Yes, sir. 6 Q Was the animal work to try and determine the potential 7 for harm in a living organism? 8 A Yes, sir, it was. 9 Q And I gather you are acquainted now with some of that 10 work? 11 A Oh, sure. Sure. 12 Q While we are talking about Kaylo, one of my favorite 13 subjects, - 14 A I'm sure. 15 Q -- do you -- well, I know you didn't do any Kaylo 16 surveys at Dow, did you? 17 A No. 18 Q Have you seen papers indicating that such was done up 19 there? 20 A After I left Dow, yes. 21 Q Okay. Now, the approach that you used in -- in 22 assessing a hazard from asbestos exposure was to use a TLV 23 of 5 million particles per cubic foot of asbestos? 24 A Well, that was the TLV. 25 Q All right. 201 1 A Well, what I -- any time you sample for particulate 2 material in the air, you sample all particles. You can't 3 sample just fibers or just asbestos or just cotton or just 4 sand. You sample everything that's there. And then, if 5 your exposure, the concentration that people are exposed to 6 is in excess of, say, 5 million particles per cubic foot, 7 then you start worrying about what fraction of that is 8 asbestos and whether or not the asbestos TLV has been 9 exceeded; but if the exposures are below 5, you know very 10 well the asbestos TLV can't possibly have been exceeded. 11 So, you don't have to go to all the work of analyzing 12 particularly for asbestos or even finding out what fraction 13 of the sample is asbestos if you are well below 5 million 14 particles per cubic foot. 15 Q Well, okay. I heard that. Now, at Dow, when the 16 hygienist would go out and do a survey and report on it and 17 report a certain concentration level, was he using this 18 approach that you say was the rule, that is, to say that 19 I've sampled and I have got 4 million particles per cubic 20 foot of asbestos? 21 A No. 22 Q He is just reporting on total dust measured? 23 A Total dust, that's right. 24 Q Well, then, how does he ever get to the point of 25 knowing what he has got in the way of asbestos? 202 1 A He doesn't. He doesn't have to. 2 Q What if he is over 5 million parts? Then what? 3 A Oh, then -- then, he has to go to the work of finding 4 what fraction of it is asbestos. 5 Q And how does he go about doing that? 6 A There is only one way to do it under circumstances 7 similar to those that I did the asbestos sampling at Dow; 8 and that is to set up a high volume sampler, sample enough 9 air so that I can find out what the fraction of asbestos is 10 in the particles that are collected with my high volume 11 sample, and say that the chances are that that fraction 12 would apply to the breathing zone sample I took of the 13 gentleman in question. 14 Q So, you've got a chance to go -- once you've got a 15 sample taken consistent with the TLV standards and it's at 16 the limit or it's beyond the limit, then you would go and 17 try somehow to figure out how much of it was asbestos? 18 A Yes, sir. 19 Q And you do this with, what, electronic microscopes; or, 20 I mean, how in the 1950's would you do this analysis? 21 A Oh, that's -- that's easy, even in the '50s. With this 22 high volume sampler, we can get enough sample so that we can 23 take it to an x-ray diffraction lab and say, "Tell me: How 24 much of this is asbestos and what kind of asbestos is it?" 25 And we had x-ray diffraction going at Dow when I was there 203 1 and well before I was there. You can actually do it with 2 wet chemical methods, too; but it's a very long, laborious 3 procedure. 4 The fact of the matter is that asbestos is resistant to 5 just about every technique we use. We can try and burn the 6 stuff and it would burn away all the organic and you are 7 left with asbestos. 8 Q Well, now, when Mr. Dreessen did his report, this 9 epistudy you have referred to, that was, what, 1936? 10 A It was published in '38. 11 Q Okay. And done in - 12 A Some preceding time. 13 Q All right. Published in 1938. He didn't have this 14 x-ray spectrometry available to sort out the asbestos 15 fibers, did he? 16 A No. In the first place, he wasn't looking for fibers. 17 He was looking for particles, all particles, including 18 fibers. 19 In the second place, yes, he did have a high volume 20 sampler there. In fact, there is a picture of it in one of 21 the first pages of the report. 22 Q Yeah. 23 A And what he did with those samples was to burn them, 24 and the idea being that the dust in that kind of a plant 25 consisted either of asbestos or cotton. The cotton would 204 1 burn. The asbestos wouldn't. 2 So, when I burned it or when he burned it, he not only 3 wound up with ash; but he knew that he was getting rid of 4 the two molecules of water that are coincident with 5 chrysotile asbestosis so that he could sit down and 6 calculate, if he wished, the concentration of asbestos in 7 the air. And it turns out that the average for his samples, 8 excluding the one that's got a lot of oil in it, is about 90 9 percent asbestos. 10 Q This is what he reports in his paper? 11 A He doesn't report the 90 percent, but he reports the 12 data from which one can calculate the 90 percent. It's in 13 Table 3 or something like that or 12. I don't remember. 14 MR. TAYLOR: I can probably find it for you. 15 A But he didn't use x-ray diffraction. Instead, he 16 simply did the easy thing and burned the samples, ignited 17 them is what they -- the term that he used. 18 Q (By Mr. Blanks) So, you are saying that the number he 19 comes up with, this 5 million, is net of any other fiber or 20 particle or anything else in there? 21 A No. It's total particles in a plant where 90 percent 22 of the dust is asbestos, and believe me -23 Q You are taking me in circles now. I mean, he reports 5 24 million total -- 5 million particles of total dust. 25 A In air where the particles are 90 percent asbestos 205 1 particles. 2 Q Well, how do you get to that last step? 3 A By means of the ignition samples that he has. You can 4 calculate. He must or DallaValle, his industrial hygienist, 5 must have done the calculation because they, in essence, 6 said, "Look, what we are sampling is, in essence, pure 7 asbestos, even though we know there is around 10 percent 8 cotton." He knew there was 10 percent cotton not only from 9 the input to the plant where they use the cotton fiber as a 10 basis to make the fabric, the textile, the asbestos textile, 11 but also because of his high volume air samples that were 12 ignited. And they show that there was 90 percent asbestos 13 in the air, as well. 14 And the slop we have in industrial hygiene is far 15 greater than plus or minus 10 percent in any samples we 16 take. So that this is saying, if we say it's 100 percent 17 asbestos, we aren't going to be far away. 18 Why don't you hand it to me. I'll find it. 19 Q Yes. 20 A It's near the front of the paper. There is a picture 21 of his high volume sampler. 22 Q Vacuum cleaner bag arrangement for collecting suspended 23 dust samples. 24 A Yes. And this is why it was used. It wasn't used to 25 determine concentration people were breathing. It was used 206 1 to get enough of the stuff in the vacuum cleaner bag so they 2 could weigh it and ignite it and reweigh it. 3 Q And you are satisfied this vacuum bag here captured the 4 small asbestos particles? They didn't just go blowing on 5 through it like you know they do? 6 A No. In fact, it probably did a better job than the 7 impingers did on collecting the asbestos particles. A 8 filter bag - chemical engineers learned this; and I'm, 9 basically, a chemical engineer who went wrong - becomes a 10 better and better filter. That is, it's more and more 11 efficient as you collect more and more dust because the dust 12 itself becomes a filter for further dust. So that a bag 13 filter can approach 100 percent efficiency. 14 Yes. Here are the tables. They are on Page 20 where 15 they talk about loss on ignition and so forth. 16 Q And so, from this you get your 90 percent somewhere? 17 A Yes. That's right. 18 Q I sure don't see it in there. 19 A No. No. You don't see it. It was never calculated 20 and presented in the paper. This was standard industrial 21 hygiene techniques. It's like you don't learn how to spell 22 words when you become a lawyer. You are expected to know 23 this. Industrial hygienists were expected to know this kind 24 of thing, too. It's just one of those things that was part 25 of industrial hygiene. Nowhere -- 207 1 Q Okay. 2 A Nowhere in the paper is that high volume sampler 3 discussed, nowhere, and how it's used. 4 Q Well, then, how do you know about it? 5 A It's right here. Because this is a standard 6 technique. This is the way industrial hygienists did 7 things. 8 And he also talked about collecting samples from 9 horizontal surfaces, rafter samples. This is also a 10 standard industrial hygiene technique to find out what was 11 in the air. 12 Q Well, let's see. Table 2 has got chemical analyses of 13 settled dust samples. 14 A That's the rafter samples that I'm talking about. 15 Q And then, Table 3 is chemical analysis of suspended 16 dust samples. 17 A Right. Those are the ones taken by the high volume 18 technique, that vacuum cleaner. 19 Q Now, how -- and then you have got these numbers. These 20 are the -- this is what is left after you have - 21 A After you have ignited it. 22 Q -- ignited? 23 A That's right. 24 Q So much ash? 25 A That's the operative thing is the ash because that 208 1 contains all the rest of the stuff. 2 Q Silicon dioxide? 3 A Yes. 4 Q Where does that -- where does that come from? Where 5 does the silicon dioxide come from? 6 A Asbestos -- chrysotile asbestos is a hydrated magnesium 7 silicate. When you burn it, you wind up with silicon, which 8 is expressed in tables such as this as SIO2. Magnesium is 9 expressed as MgO and so forth. Aluminum is expressed as 10 Al2 O3. 11 Q So, what, are these five columns of compounds - 12 A Those don't count. 13 Q -- or what? 14 A Yes. They are -- they are simply showing that it's 15 asbestos, that this is -- has its source of asbestos. What 16 really counts is the total ash from which all these other 17 things come. So, you look at the ash; and you find that the 18 ash is, what, around 87 percent, 85 percent, something on 19 this order. I've forgotten the exact numbers. 20 The weight of the water that was driven off as a 21 function of the water crystallization of the magnesium 22 silicate to form asbestos is something like -- oh, I've 23 forgotten these numbers. At any rate, you add that in to 24 the ash; and you wind up with 80 percent or 90 percent for 25 most of the samples. There is one that is contaminated with 209 1 oil that you have to throw out. 2 Q Well, he talks about a 30 percent loss on ignition. 3 A Uh-huh. Let me see the table, please. I -- it's been 4 a long time since I have gone through this calculation. 5 What I did was to average the percentages of ash, leaving 6 out that one sample that was taken in the area where there 7 was a lot of oil because they were trying to suppress dust 8 formation with oil. And you add these things up; and they 9 come out around 75 percent, something like this, 75 or 77 10 percent. And the loss on ignition of water vapor is 13 11 percent. So, you add that to the 76 percent; and you get 89 12 or 90 percent is the loss on ignition, which means -13 Q So what -- yeah. 14 A -- which means that's the asbestos content of these 15 samples, on the average. 16 Q Well, how - 17 A Honest. 18 MR. ALMQUIST: I think, Mr. Blanks, that you may 19 want to think about that a little bit longer. We've now 20 reached the 5:00 hour here, and so I think - 21 MR. BLANKS: Okay. Do you want to take a little 22 break? 23 MR. ALMQUIST: No. I think we are through for the 24 day. 25 MR. BLANKS: Well, we want to go on a little bit. 210 1 We can get done here. 2 MR. ALMQUIST: No. We're through for the day. 3 MR. BLANKS: Well, no - 4 MR. ALMQUIST: I'm not going to subject him to - 5 Joe, we stopped last time for you at 3:45. 6 MR. BLANKS: Well, now, wait a minute. Wait a 7 minute. Let's talk to Dr. Peterson here. 8 Can you carry on a little bit so we can get done, sir? 9 MR. ALMQUIST: Joe, the Texas Supreme Court is on 10 the verge of adopting a six-hour total deposition. 11 MR. BLANKS: Well, they haven't yet. 12 MR. ALMQUIST: We have been going six hours 13 today. I'm not going to subject the witness to more than 14 six hours. Now, we went -- last time, we had six hours of 15 testimony; and we've actually been here since 9:30 this 16 morning. It's now -- well, it started at 9:00. We had to 17 move rooms. The deposition actually began at 9:30. It's 18 now 5:00, and that is - 19 MR. BLANKS: Well - 20 MR. ALMQUIST: I'm sorry; but I think that, you 21 know, is imposing upon a witness. 22 MR. BLANKS: Well, you are talking. But, I mean, 23 the witness is the one to say. If he is willing to stay 24 another 20 or 30 minutes so we can get done and I won't have 25 to come back and bother him again, then I think we ought to 211 1 do that. 2 MR. ALMQUIST: There are other attorneys who have 3 questions of this witness. Are you then going to have to go 4 back and reevaluate 20, 30 minutes after you think you are 5 going to be through, whether they have questions, however 6 long that lasts? 7 MR. BLANKS: Well - 8 MR. ALMQUIST: I am sorry, but that is not fair to 9 the witness and is not the way I operate. You have known 10 this before in other depositions. I'm not going to drag 11 somebody on all day. 12 MR. BLANKS: Well, you are not dragging anybody. 13 Dr. Peterson, I drug him here and I appreciate your thoughts 14 but you are just consuming our time. And if he is willing 15 to stay a little longer in the hopes of getting done, then I 16 think he'd probably want to do that. 17 THE WITNESS: Mr. Blanks, I have done this for 18 plaintiff attorneys several times in the past who have 19 promised 20 or 30 minutes; and it's always wound up to be an 20 hour and a half or two hours. I can't do that. 21 MR. BLANKS: Well, I'm not going to do you an hour 22 and a half. I promise you that. 23 MR. TAYLOR: There is your answer. I mean, I 24 think he has declined to proceed and - 25 MR. BLANKS: Well, I -- now, you all be quiet a 212 1 minute now. I am going to ask you to stay so we can get 2 done. Otherwise, we are going to have to adjourn and come 3 back and I don't want to do that and I don't know whether 4 you want to or not but you probably don't. I'm really sorry 5 we got into this long digression on Dreessen here, but I'd 6 invite you to give us a chance to wrap up and - 7 MR. ALMQUIST: I have been through those - 8 MR. BLANKS: Let him answer me instead of your 9 speech and Tom's speech because, I mean, that's -- that's 10 where we are going to go. If we don't get done - 11 THE WITNESS: I'm disinclined to go further. I'm 12 tired. I've been fighting a cold for a couple of weeks. 13 I'm getting over it, but I would rather not push myself any 14 harder than I have been pushed already. 15 MR. BLANKS: Would you be willing to give these 16 other people a chance to just ask you any questions they 17 might have? While we are talking, as you can see, I am 18 flipping through my stuff and making sure that we have 19 pretty well covered everything that I need to cover. And, 20 indeed, we have. Though, we haven't talked about your books 21 that you brought; but I want to cover that. And then, I'll 22 pass the witness and let everybody have a chance at you. 23 And I'll bet you they don't take much of it. Would you be 24 willing to give that a try? 25 MR. TAYLOR: I'm sorry. I'm not understanding. 213 1 Are you passing or not right now? Are you done? 2 MR. BLANKS: I want to ask to ask -- I want to ask 3 -- if the doctor will stay with us and let us finish, I 4 want to ask us a couple of questions about the papers he 5 brought; and then, I'm passing. That's all I've got. So, 6 I've got -- first, I've got a question to you. Would you be 7 willing to give that a try in hopes we can get done in truly 8 within the 30 minutes or 20 minutes? 9 THE WITNESS: Where do we watch the guillotine 10 drop or guillotine? 11 MR. BLANKS: You're -- well, I guess, you know, I 12 don't have a gun; and I'm not going to scream at you. I 13 mean, I guess you can get up and walk out. 14 THE WITNESS: Well, I know I could do that. I 15 don't want to be obstreperous. I really don't have anything 16 to say about these papers. They are published. 17 MR. BLANKS: Well - 18 THE WITNESS: I don't know, Joe. I -- as I said, 19 I am tired. My voice is tired. My throat is tired. 20 Although, it's not sore; and it was sore when I got here 21 this morning. It's been sore for the last week. I am 22 getting better, but I'm not over it. One can hear that in 23 my voice. I just -- I would rather not. I'm sorry. I 24 really would rather not. 25 MR. BLANKS: Well, I'll pass the witness and give 214 1 you all an opportunity to cross-examine. 2 MR. ALMQUIST: Well, again, with the 3 cross-examination - 4 MR. BLANKS: Is there any cross-examination? 5 MR. ALMQUIST: Yeah. There are some questions I 6 will have to ask. 7 MR. JONES: I don't have anything. 8 MR. BLANKS: Is there anything from anybody else 9 present? I hear nothing. I hear nothing from anyone but 10 Mr. Dow. 11 MR. ALMQUIST: I have some questions I'm going to 12 ask this witness. If I'm going to ask him questions, it's 13 going to take me a while to ask questions. 14 MR. BLANKS: Well, okay. 15 MR. TAYLOR: Well, then, it sounds like it's the 16 same rule for everyone and - 17 MR. BLANKS: And then - 18 MR. TAYLOR: -- I would say we are coming back, it 19 sounds like, because if, you know, he is not going to go 20 past 5:00 for you, he is certainly not going to go past 5:00 21 for Dow. He is not going to go past 5:00 for us. I don't 22 blame him. So, I think we are done for the day; and we will 23 come back another time. 24 MR. BLANKS: All right. No. The situation now 25 is: I pass the witness. Dow wants to ask you a few 215 1 questions. You probably know what they are. There are 2 probably not many. Do you prefer to stay and be done with 3 us here? I don't -- I can't speak for Mr. Almquist. 4 THE WITNESS: I would -- what I would prefer is 5 being able to answer all of your questions. 6 MR. BLANKS: I'm done. You have done me a good 7 job and - 8 THE WITNESS: If you know you are done - 9 MR. BLANKS: Well, I'm done. Now, if he does 10 something on his redirect, well, then, we may have to come 11 back. You know that. But, I mean, I want to be done as 12 well as you do, as much as I love your city; and I enjoy 13 your company. So -- but we've been talking now for about 15 14 minutes to no avail. So, if - 15 MR. ALMQUIST: I think I need a minute break. I 16 want to talk to some of the other attorneys and see if they 17 anticipate any questions and stuff. 18 MR. BLANKS: Well, the only other - 19 MR. TAYLOR: Off the record. 20 MR. ALMQUIST: Off the record. 21 MR. BLANKS: All right. 22 (After the break, the proceedings continued as 23 follows:) 24 MR. ALMQUIST: None of our attorneys have any 25 questions, and none of the other attorneys have any 216 1 questions. So, the depo -- that's it. 2 MR. BLANKS: Can we put on the record before you 3 pack up what you brought with you today, and then -- I'm not 4 going to take them but - 5 THE WITNESS: Do you want me to copy anything for 6 you? 7 MR. BLANKS: You know, I probably have most of 8 this anyway. 9 THE WITNESS: You probably do. 10 MR. BLANKS: So, probably not. 11 THE WITNESS: Yeah. Okay. 12 MR. BLANKS: But I appreciate the offer. Just 13 wrapping up for the record, Dr. Peterson was kind enough to 14 bring today some of his personal library, including, in 15 particular, bound copies of the "American Industrial Hygiene 16 Association Journal," Volumes 17 through 18, years 1956 17 through 1957, and Volumes 19 through 20 for years '58 and 18 '59; the second revised edition of Patty's "Industrial 19 Hygiene and Toxicology" from years 1950 -- from the year 20 1958, and that's in multiple volumes, I believe; and some 21 AIHA Journals from '62, '63, Volumes 23 and 24, '64 and - 22 1964 and '65, Volumes 25 and 26. All of them filched, by 23 the way from -- no doubt withdrawn from circulation of some 24 college library. 25 THE WITNESS: No. They were my volumes that were 217 1 put in our library. 2 MR. BLANKS: I see. And Stern on air pollution. 3 THE WITNESS: Three volumes there. 4 MR. BLANKS: Oh, I thought it was three copies of 5 the same book. 6 THE WITNESS: No. Three volumes. Volumes 1, 2, 7 and 3. 8 MR. BLANKS: Three volumes from 1968, the AIHA 9 Journal, Volumes 21 through 22; 1960 through '61; and did 10 you get Dr. Peterson's comment that the AIHA Journals, at 11 least, were bound copies of his personal AIHA Journals from 12 those early years, which I gather you had put in the library 13 at the college library? 14 THE WITNESS: In market. 15 MR. BLANKS: Market, yes, for our use, which they 16 gave you when you departed for your own keepsake? 17 THE WITNESS: They did. 18 MR. BLANKS: Okay. Thank you, sir. 19 THE WITNESS: My pleasure. 20 (Proceedings concluded.) 21 22 23 24 25 218 1 WITNESS CERTIFICATE 2 STATE OF 3 COUNTY OF 4 I, JACK E. PETERSON, P.E., Ph.D., do hereby certify that I have read the foregoing transcript of my videotaped 5 testimony given in the foregoing numbered and styled cause and that same is true and correct to the best of my 6 knowledge and belief with the exception of the following corrections by page and line number: 7 PAGE/LINECORRECTION 8 REASON FOR CORRECTION____ PAGE/LINECORRECTION 9 REASON FOR CORRECTION____ PAGE/LINECORRECTION 10 REASON FOR CORRECTION____ PAGE/LINECORRECTION 11 REASON FOR CORRECTION____ PAGE/LINECORRECTION 12 REASON FOR CORRECTION____ PAGE/LINECORRECTION 13 REASON FOR CORRECTION____ PAGE/LINECORRECTION 14 REASON FOR CORRECTION____ PAGE/LINECORRECTION 15 REASON FOR CORRECTION____ PAGE/LINECORRECTION 16 REASON FOR CORRECTION____ PAGE/LINECORRECTION 17 REASON FOR CORRECTION____ PAGE/LINECORRECTION 18 REASON FOR CORRECTION____ PAGE/LINECORRECTION 19 REASON FOR CORRECTION____ PAGE/LINECORRECTION 20 REASON FOR CORRECTION____ PAGE/LINECORRECTION 21 REASON FOR CORRECTION____ 22 JACK E. PETERSON, P.E., Ph.D. 23 Sworn to and subscribed before me on this day 24 of, 1996. 25 Notary Public for the State of 219 1 STATE OF TEXAS: 2 COUNTY OF ANGELINA: 3 4 I, Laura Dee Bates, a Certified Shorthand Reporter and 5 Notary Public in and for the State of Texas, do hereby 6 certify that the above and foregoing transcript contains a 7 true and correct transcription of my shorthand notes taken 8 during the videotaped deposition of JACK E. PETERSON, P.E., 9 Ph.D., after having been first duly sworn, on September 10 27th, 1996. 11 12 CERTIFIED TO on this the 21st day of October, 1996. 13 14 15 16 17 18 Laura Dee Bates, CSR, RMR 19 3200 Old Union Road 20 Lufkin, Texas 75904 21 (409) 634-1879 22 My commission expires: 12-31-96 23 Certification No. 1371 24 25 220 1 FILING CERTIFICATE CONSOLIDATED 2 CAUSE NO. A-135,876 KEITH F. GIBLIN, ET AL * IN THE DISTRICT COURT OF 3 VS. * JEFFERSON COUNTY, TEXAS A.C.& S., INC., ET AL * 58TH JUDICIAL DISTRICT 4 CAUSE NO. A-140,498 JOYCE A. BORNE, ET AL * IN THE DISTRICT COURT OF 5 VS. * JEFFERSON COUNTY, TEXAS ALLIED SIGNAL, INC., ET AL * 58TH JUDICIAL DISTRICT 6 CAUSE NO. E-141,216 JOSEPH E. BARNARD, ET UX * IN THE DISTRICT COURT OF 7 VS. * JEFFERSON COUNTY, TEXAS ALLIED-SIGNAL, INC., ET AL * 58TH JUDICIAL DISTRICT 8 CAUSE NO. B-141,242 ROOSEVELT SCOTT * IN THE DISTRICT COURT OF 9 VS. * JEFFERSON COUNTY, TEXAS AMERICAN OPTICAL CORPORATION, * 10 ET AL 11 * 60TH JUDICIAL DISTRICT CONSOLIDATED CAUSE NO. A-134,614 FRENCH HICKS, ET AL * IN THE DISTRICT COURT OF 12 VS. * JEFFERSON COUNTY, TEXAS BETHLEHEM STEEL CORP., ET AL * 58TH JUDICIAL DISTRICT 13 CAUSE NO. B-126,986 RUSSELL ALLEN, ET AL * IN THE DISTRICT COURT OF 14 VS. * JEFFERSON COUNTY, TEXAS AMERICAN PETROFINA, INC., ET AL * 60TH JUDICIAL DISTRICT 15 CONSOLIDATED CAUSE NO. A-144,426 16 GLADYS FORRESTIER, ET AL * IN THE DISTRICT COURT OF VS. * JEFFERSON COUNTY, TEXAS 17 AC&S, INC., ET AL * 58TH JUDICIAL DISTRICT 18 VIDEOTAPED DEPOSITION OF JACK E. PETERSON, P.E., Ph.D. 19 TAKEN ON SEPTEMBER 27, 1996 20 I, Laura Dee Bates, Certified Shorthand Reporter in and 21 for the State of Texas, hereby certify pursuant to the Rules 22 and/or agreement of the parties present to the following: 23 That this deposition transcript is a true record of the 24 testimony given by said witness, JACK E. PETERSON, P.E., 25 Ph.D., after having been first duly sworn by me. 221 1 That $709.00 is the charge for the preparation of the 2 completed deposition transcript and any copies of exhibits 3 charged to Counsel fort he Plaintiffs, Hon. Joseph C. 4 Blanks, SBN 02456700. 5 That the deposition transcript was submitted the 6 21st day of October, to JACK E. PETERSON, P.E., Ph.D., 7 through his attorney, Hon. Arthur Almquist, for examination 8 and signature and returned to Laura Dee Bates, CSR, RMR, the 9 day of, 1996. The attached witness 10 certificate sheet contains any changes and the reasons 11 therefor made by the witness. 12 That the deposition transcript A was A was not returned 13 to the deposition officer by the witness and/or counsel. 14 That the original deposition transcript, or a copy 15 thereof, together with copies of all exhibits, was delivered 16 on theday of, 1996, to the attorney 17 or party who asked the first question appearing in the 18 transcript. 19 That pursuant to information made a part of the record 20 at the time said testimony was taken, the following includes 21 all parties of record: 22 (See Attachment "A".) 23 That a copy of this certificate was served on all 24 parties shown. 25 222 1 GIVEN under my hand and seal of office on this the 2 _____ day of, 1996. 3 4 5 Laura Dee Bates, CSR, RMR 3200 Old Union Road 6 Lufkin, Texas 75904 (409) 634-1879 7 My commission expires: 12-31-96 Certification No. 1371 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 349 1 B-126,986 2 RUSSELL ALLEN, ET AL * * IN THE DISTRICT COURT OF 3 VS. * JEFFERSON COUNTY, TEXAS * 4 AMERICAN PETROFINA, ET AL * 60TH JUDICIAL DISTRICT 5 A-134,614 6 FRENCH HICKS, ET AL * * IN THE DISTRICT COURT OF 7 VS. * JEFFERSON COUNTY, TEXAS * 8 BETHLEHEM STEEL CORP., * ET AL * 58TH JUDICIAL DISTRICT 9 B-141,242 10 ROOSEVELT SCOTT * IN THE DISTRICT COURT OF 11 * VS. * JEFFERSON COUNTY, TEXAS 12 * AMERICAN OPTICAL CORP., * 13 ET AL * 60TH JUDICIAL DISTRICT 14 A-138,633 15 MARGARET FAULKNER, ET AL * IN THE DISTRICT COURT OF * 16 VS. * JEFFERSON COUNTY, TEXAS * 17 AKRON CHEMICAL CO., ET AL * 58TH JUDICIAL DISTRICT 18 A-136,143 19 KEITH GIBLIN, ET AL * * IN THE DISTRICT COURT OF 20 VS. * JEFFERSON COUNTY, TEXAS * 21 MOBIL OIL CORPORATION, * ET AL * 58TH JUDICIAL DISTRICT 22 23 VOLUME II 24 VIDEO DEPOSITION OF VERALD K. ROWE 25 TAKEN ON MAY 11, 1993, AND MAY 12, 1993 350 1 E-141,216 2 JOSEPH E. BARNARD, ET UX * IN THE DISTRICT COURT OF * 3 VS. * JEFFERSON COUNTY, TEXAS * 4 ALLIED-SIGNAL, INC., * ET AL * 172ND JUDICIAL DISTRICT 5 A-140,498 6 JOYCE A. BORNE, ET AL * IN THE DISTRICT COURT OF 7* VS. 8 * JEFFERSON COUNTY, TEXAS * ALLIED-SIGNAL, INC., * 9 ET AL * 58TH JUDICIAL DISTRICT 10 12 VOLUME II 14 VIDEO DEPOSITION OF 16 VERALD K. ROWE 18 19 On May 11, 1993, and May 12, 1993, Volume II 20 of the videotaped deposition of Verald K. Rowe, a 21 Witness in the above-styled causes, was taken, the 22 deposition having begun on October 1, 1992. The 23 deposition was held at the Arizona Biltmore Resort 24 Hotel, 24th Street and Missouri Avenue, Phoenix, 25 Arizona, pursuant to Stipulation of Counsel. 351 1 Those counsel present, representing their 2 respective client or clients in the cause of action or 3 causes of action in which he/she has filed an answer, 4 were as follows: 5 6 7 JOSEPH C. BLANKS Reaud, Morgan & Quinn 8 801 Laurel Street Beaumont, Texas 77701 9 AND 10 HERSCHEL L. HOBSON 11 Hobson & Ferguson 2190 Harrison Street 12 Beaumont, Texas 77701 13 Counsel for Plaintiffs 14 STANLEY PIERCE 15 Rivkin, Radler & Kremer EAB Plaza 16 Uniondale, New York 11556-0111 17 Counsel for Witness VERALD K. ROWE 18 19 ARTHUR R. ALMQUIST Mehaffy & Weber 20 500 Dallas Street, Suite 1200 Houston, Texas 77002 21 Counsel for Defendants 22 B.F. GOODRICH COMPANY AND THE DOW CHEMICAL COMPANY 23 24 25 352 1 CHARLES TIMOTHY KELLY Wayne Davidson & Associates, P.C. 2 1900 West Loop South, Suite 905 Houston, Texas 77027 3 Counsel for Defendant 4 COMPLETE ABRASIVE BLASTING SYSTEMS, INCORPORATED (CABS) 5 6 RYAN A. BEASON Funderburk & Funderburk 7 2777 Allen Parkway, Suite 1080 Houston, Texas 77019 8 Counsel for Defendants 9 WGM SAFETY CORPORATION, d/b/a WILLISON SAFETY PRODUCTS, AND 10 JOHN CRANE, INC. 11 LISA A. KETAI 12 Hirsch, Glover, Robinson & Sheiness 917 Franklin at Main 13 Houston, Texas 77002 14 Counsel for Defendants SURVIVAIR, 15 KELCO SALES AND ENGINEERING, INC., AND RUEMELIN 16 17 DOUGLAS B. DOUGHERTY Woodard, Hall & Primm, P.C. 18 7000 Texas Commerce Tower Houston, Texas 77002 19 Counsel for Defendant 20 MONSANTO COMPANY 21 FRANK A. POFF 22 Gooding & Dodson 300 Texarkana National Bank Building 23 P. O. Box 1877 Texarkana, Texas 75504-1877 24 Counsel for Defendant 25 GREFCO, INC. 353 1 ROBERT S. DAVIS Cowles & Thompson 2 One American Center, Suite 777 909 E.S.E. Loop 323 3 Tyler, Texas 75701-9684 4 Counsel for Defendant Fuller-Austin Insulation Co. 5 6 KIM C. STANGER Lewis and Roca 7 40 North Central Avenue Phoenix, Arizona 85004-4429 8 Counsel for Defendant 9 U.S. SILICA COMPANY, f/k/a PENNSYLVANIA GLASS SAND CORPORATION 10 11 DEBORAH S. COLDWELL Strasburger & Price, L.L.P. 12 901 Main Street, Suite 4300 Dallas, Texas 75202 13 Counsel for Defendant 14 TRAVELERS INSURANCE COMPANY 15 JAMES R. SCRIVNER 16 Smith, Shew & Scrivner, P.C. 120 East 14th Street 17 P.O. Box 1373 Ada, Oklahoma 74821-1373 18 Counsel for Defendant 19 HARWICK CHEMICAL CORPORATION 20 21 22 23 24 25 354 1 LOUIS H. KNABESCHUH, JR. Jenkins, Grove & Martin 2 Fifth Floor 2615 Calder Avenue and Tenth Street 3 Beaumont, Texas 77701 4 Counsel for Defendants MOBIL OIL CORPORATION, FINA OIL & 5 CHEMICAL COMPANY, HARWICK CHEMICAL COMPANY, VISTA CHEMICAL COMPANY, ALLIED 6 CHEMICAL CORPORATION, AMOCO OIL CORPORATION, E. I. Du PONT DE NEMOURS & 7 COMPANY, INC., MCKESSON CHEMICAL CORPORATION, NECHES BUTANE, INC., OXY 8 U.S.A., INC., PETRO-TEX CHEMICAL CORPORATION, PHILLIPS 66 COMPANY, SHELL 9 OIL COMPANY, SUN OIL COMPANY, TEXACO REFINING & MARKETING, INC., UNION 10 OIL COMPANY OF CALIFORNIA, AND PULMOSAN SAFETY EQUIPMENT CORPORATION 11 12 SUSAN SPARKS USERY Alenik & Associates 13 Summit Plaza West 12 Greenway Plaza, Suite 1200 14 Houston, Texas 77046 15 Counsel for Defendants BIG THREE INDUSTRIES, INC. 16 17 KIMBERLY BISHOP Martin & Herring 18 1302 McGowen Avenue Houston, Texas 77004 19 Counsel for Defendant 20 FLEXO PRODUCTS, INC. 21 THOMAS HARRIS 22 Fairchild, Price, Thomas & Haley 413 Shelbyville Street 23 Center, Texas 75935-1336 24 Counsel for Defendants BINKS MANUFACTURING CO. AND 25 J. T. THORPE CO. 355 1 D. ALLAN JONES Orgain, Bell & Tucker 2 470 Orleans Street, Fourth Floor Beaumont, Texas 77701 3 Counsel for Defendants 4 ARCO CHEMICAL COMPANY, ATLANTIC RICHFIELD COMPANY, CHEVRON U.S.A., 5 INC., GULF STATES UTILITIES COMPANY, LUBRIZOL CORPORATION, MONSANTO COMPANY, 6 NECHES BUTANE, INC., OCCIDENTAL CHEMICAL CORPORATION, PURE OIL 7 CORPORATION, SUN OIL COMPANY, TEMPLE-EASTEX, INC., TEMPLE-INLAND, 8 INC., UNION OIL COMPANY OF CALIFORNIA, UNOCAL CORPORATION, AND USI CHEMICALS 9 COMPANY, INC., a/k/a QUANTUM CHEMICAL 10 DAVID BURNS 11 Tekell, Book, Matthews & Limmer 3600 Two Houston Center 12 909 Fannin Houston, Texas 77010 13 Counsel for Defendants 14 THE TACKABERRY COMPANY AND TRIPLE B CORPORATION 15 16 GEORGE P. PAPPAS McLeod, Alexander, Powel & Apffel 17 802 Rosenberg Street Post Office Box 629 18 Galveston, Texas 77553-0629 19 Counsel for Defendant LONE STAR INDUSTRIES, INC. 20 21 ROSS A. SEARS, II Hays, McConn, Rice & Pickering 22 400 Citicorp Center 1200 Smith Street 23 Houston, Texas 77002 24 Counsel for Defendant MINE SAFETY APPLIANCES COMPANY 25 356 1 B. STEPHEN RICE Hays, McConn, Rice & Pickering 2 400 Citicorp Center 1200 Smith Street 3 Houston, Texas 77002 4 Counsel for Defendants AMOCO CHEMICAL COMPANY, AMOCO 5 CORPORATION, AMOCO OIL COMPANY, BASF CORPORATION, CHEVRON CHEMICAL COMPANY, 6 CHEVRON U.S.A., CITIES SERVICE OIL AND GAS CORPORATION a/k/a OXY USA, CONOCO, 7 CROWN CENTRAL PETROLEUM CORPORATION, EASTMAN KODAK COMPANY, ETHYL 8 CORPORATION, EXXON CORPORATION, GULF OIL CORPORATION, HOECHST CELANESE 9 CHEMICAL GROUP, HUMBLE OIL AND REFINING CORPORATION, LUBRIZOL CORPORATION, 10 MARATHON OIL COMPANY, PHILLIPS 66, PHILLIPS CHEMICAL COMPANY, PHILLIPS 11 PETROLEUM COMPANY, PURE OIL CORPORATION, ROHM AND HAAS BAYPORT, 12 ROHM AND HAAS TEXAS, INC., SHELL OIL COMPANY, STAR ENTERPRISE, SUN OIL 13 COMPANY, TEMPLE-INLAND FOREST PRODUCTS, TENNECO OIL COMPANY, TEXACO CHEMICAL 14 COMPANY, TEXACO CHEMICAL INTERNATIONAL TRADER, TEXACO REFINING & MARKETING, 15 TEXAS CITY REFINING, INC., UNION OIL COMPANY OF CALIFORNIA, AND UNOCAL 16 CORPORATION 17 SANDRA S. SULLIVAN, CSR, RPR 18 Charlotte Smith Reporting, Inc. 235 Orleans Street 19 Beaumont, Texas 77701 20 VIDEOTAPE OPERATOR/TECHNICIAN: 21 GARY BREWTON 22 Project Video P.O. Box 5850 23 Beaumont, Texas 77726 24 25 357 1 IN ATTENDANCE: 2 LINDA M. FIEGENER Certified Legal Assistant 3 Legal Department The Dow Chemical Company 4 A.P. Beutel Building 2301 Brazosport Boulevard 5 Freeport, Texas 77541 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 358 1 INDEX 2 VOLUME II 3 DEPOSITION OF VERALD K. ROWE 4 May 11, 1993, and May 12, 1993 5 MAY 11, 1993 PAGE 6 EXAMINATION BY MR. BLANKS (Cont'd) 363 - 517 7 MAY 12, 1993 8 EXAMINATION BY MR. BLANKS (Cont'd) RE-EXAMINATION BY MR. HOBSON 9 517 - 645 645 - 673 10 E X H I B I T S 11 PLAINTIFFS' 12 EXHIBIT NO. DESCRIPTION PAGE 13 * (Exhibit Vol. IV) 14 710105 WCH Document Entitled, "Public Health Hazards from 15 Environmental Chemical Carcinogens, Mutagens and 16 Teratogens," by W. C. Hueper 17 ROWE 9 (Bates Nos. 1053 - 1071) 609 Xerox Copy of Handwritten 18 Speech Notes of V. K. Rowe, Bearing the Penciled Notation 19 "from loose papers at top of stack" in Upper Left-Hand 20 Corner, Relating to Broad Concept of Toxicology and 21 Safety and Kinds of Tests Conducted, Educational 22 Lecture (Bates Nos. 1072 - 1091) 613 23 * Plaintiffs' Exhibits Bearing Bates Nos. 0001 through 24 1052 will be found in Exhibit Vols. I through III Attendant to Vol. I of the Deposition of V. K. Rowe 25 Taken on October 1, 1992, and October 2, 1992. 359 1 ROWE 10 Xerox Copy of Handwritten Speech Notes of V. K. Rowe 2 (Bates Nos. 1092 - 1101) 614 3 ROWE 11 Xerox Copy of Handwritten Speech Notes of V. K. Rowe 4 (Bates Nos. 1102 - 1111) 614 5 ROWE 12 Xerox Copy of Handwritten Notes of V. K. Rowe 6 (Bates Nos. 1112 - 1113) 614 7 ROWE 13 Xerox Copy of Handwritten Notes of V. K. Rowe 8 (Bates Nos. 1114- 1158) 614 9 ROWE 14 Xerox Copy of Handwritten Draft of Speech of V. K. Rowe 10 (Bates Nos. 1159 - 1171) 614 11 ROWE 15 Xerox Copy of Handwritten Notes of V. K. Rowe 12 (Bates Nos. 1172 - 1186) 614 13 ROWE 16 Xerox Copy of Handwritten File Cards of V. K. Rowe 14 (Bates Nos. 1187 - 1236) 617 15 ROWE 17 Collection of Colored Slides or Charts Regarding Incidence 16 of Various Types of Cancer in Population (Re: Smoking) 17 (Bates Nos. 1237 - 1258) 620 18 (Exhibit Vols. V through XVIII) 19 ROWE 18 Collection of Documents from 20 Personal File of V. K. Rowe Relating to Various Aspects 21 of the Subject of Carcinogenesis 22 (Bates Nos. 1259 - 6435) 624 23 24 25 360 1 ST I P U LATI O N 2 3 IT IS STIPULATED AND AGREED BY COUNSEL FOR 4 THE PARTIES HERETO: 5 That the deposition of the Witness named 6 herein is taken pursuant to the Texas Rules of Civil 7 Procedure; 8 That the Witness may sign the deposition 9 before any duly authorized and acting Notary Public 10 for the appropriate area in which signature is 11 obtained; 12 That this deposition, or any part thereof, 13 when so taken may be used upon the trial of this cause 14 with the same force and effect as if the Witness were 15 present in court and testifying in person; 16 That all objections, other than those that 17 relate to the form of the question and responsiveness 18 of the answer, are hereby preserved and may be made at 19 the time any testimony herein is sought to be offered 20 upon the trial of this cause, despite no objection 21 having been made at the time the testimony was 22 taken; 23 That an objection made by one Defendant 24 shall serve as an objection by all Defendants for 25 purposes of this deposition; 361 1 That the deposition is to be videotaped by 2 Gary Brewton of Project Video; 3 That Sandra S. Sullivan, a Certified 4 Shorthand Reporter in and for the State of Texas, may 5 act as a Certified Shorthand Reporter in and for the 6 State of Arizona for the purposes of swearing the 7 Witness in this deposition; 8 That the original transcript of the 9 deposition, pursuant to Rule 206 of the Texas Rules of 10 Civil Procedure, will be given to Joseph C. Blanks for 11 safekeeping and use at trial. In the event the 12 original deposition is unavailable at the time of 13 trial, an unsigned copy of the transcript may be 14 utilized in lieu thereof. 15 16 17 18 19 20 21 22 23 24 25 362 1 (REPORTER'S NOTE: PRIOR TO THE 2 VIDEOTAPED PORTION OF THE DEPOSITION, 3 THE FOLLOWING PROCEEDINGS WERE HAD:) 4 THE REPORTER: Same stipulations? 5 MR. PIERCE: Yes. And the witness 6 will read and sign. 7 MR. PAPPAS: An objection made by 8 one is an objection by all? 9 MR. BLANKS: Oh, yes. 10 (AT THIS TIME THERE WAS A BRIEF 11 OFF-THE-RECORD DISCUSSION AND THE 12 WITNESS WAS RESWORN BY THE REPORTER. 13 AT 9:16 A.M. THE VIDEOTAPED PORTION OF 14 THE PROCEEDINGS THEN BEGAN AS FOLLOWS:) 15 MR. PIERCE: Just a statement for 16 the record and for the room: As you 17 may recall, Dr. Rowe has a severe 18 hearing problem. He wears a hearing 19 aid in each ear. Minor rustling of 20 papers and whispering causes him great 21 discomfort and inability to hear the 22 questions. So, we'd appreciate it if 23 you could be very careful about the 24 amount of background noise here. Thank 25 you. 363 1 VERALD K. ROWE, 2 having been duly resworn, testified as follows, 3 to-wit: 4 RESUMPTION OF EXAMINATION BY MR. BLANKS: 5 Q. Good morning, Dr. Rowe. 6 A. Good morning. 7 Q. How are you today, sir? 8 A. Fine. 9 Q. Thank you for joining us. Was it the case, 10 Dr. Rowe, that you were not served with a subpoena for 11 this deposition? 12 A. I was not. 13 Q. All right, sir. Well, we appreciate your 14 being here this morning. And could you just tell us 15 who's here representing you today so we know from the 16 start? Is Mr. Almquist here for you? 17 MR. ALMQUIST: I'm here for Dow 18 Chemical. 19 MR. POFF: Could the witness speak 20 up, please? 21 A. Dr. Pierce is representing me. 22 Q. Okay. Dr. Rowe, when we adjourned 23 previously, we were midway into talking about asbestos 24 matters and your knowledge and some history from Dow 25 Chemical and those years that you worked there. 364 1 It was not clear to me in rereading the 2 deposition nor in looking at your resume or your C.V. 3 what years you actually worked in or had any 4 supervision over people doing industrial hygiene at 5 Dow. And I would appreciate it if you could make that 6 clear for me. 7 I note that your C.V. says from '70 to '73 8 you were the Director of Toxicology and Industrial 9 Hygiene in Chemical Biology Research. The period 10 before that, '64 to '70, you show yourself as 11 Assistant Director of Biochemical Research 12 Laboratory. 13 Was any of that period, '64 to '70, time 14 where you had any kind of administrative or 15 supervisory responsibility for Dow industrial 16 hygienists anywhere? 17 A. I don't believe I had any administrative 18 responsibility during those years. 19 Q. During those years of '64 to '70, could you 20 tell us who would have had the administrative 21 responsibility or would have been in charge of the Dow 22 industrial hygienists? 23 MR. PIERCE: Objection to the 24 form; compound question. 25 A. Would you repeat, please. 365 1 Q. Yes, sir. During the years '64 to '70 who 2 at Dow was in charge of the industrial hygienists? 3 A. Mr. Hoyle was head of the industrial hygiene 4 section. 5 Q. To whom did Mr. Hoyle report during that 6 period, '64 to '70? 7 A. I believe he reported to Dr. Adams. 8 Q. And Dr. Adams would have been in the 9 biochemical research laboratory? 10 A. Yes. 11 Q. Were you, yourself, reporting to Dr. Adams 12 during any of those years of '64 to '70? 13 A. Yes. 14 Q. And would you remind me, then? What was 15 Dr. Adams' title during that time, if you recall, or 16 his effective job description? 17 A. He -- As I recall, assistant director of the 18 laboratory. 19 Q. Of the biochemical research laboratory, - 20 A. Yes. 21 Q. -- is it? And you're confusing me. And I'm 22 not meaning to confuse you; but you, yourself, were 23 assistant director of the biochemical research 24 laboratory in '64 to '70. So, does that mean there 25 were two assistant directors or more? 366 1 A. Yes. 2 Q. Okay. And then in the years before '64, 3 going back to the - when Mr. Hoyle was hired, do you 4 recall to whom or to what office he would have been 5 reporting during those prior years? 6 A. He reported to Dr.Adams. 7 Q. So, your recollection would be that on back 8 to into the Forties, whenever Mr. Hoyle joined the 9 company, Dr. Adams would have been the man that was in 10 charge of the industrial hygienists and then - 11 A. That is my recollection. 12 Q. Okay. But there was a time in those years 13 between '37 and '70 when you, yourself, did have some 14 role in the industrial hygiene program at Dow, wasn't 15 there? 16 A. Yes. 17 Q. Could you just briefly summarize that for 18 us? 19 A. In the early years I worked - assisted 20 Dr. Adams in pursuit - occasionally in the industrial 21 hygiene area. But I - my responsibility was not 22 within industrial hygiene. 23 Q. Your work was essentially toxicology in the 24 laboratory? 25 A. That's right. 367 1 Q. And to the extent the toxicology workwas 2 helpful to the industrial hygienists, you had some 3 role in the industrial hygiene program, I suppose. 4 A. Oh, yes. All of us are aware of these 5 situations, but you asked me about responsibility. 6 Q. Yes, sir. Okay. And up to the time that 7 you retired from Dow in 1979, did industrial hygiene 8 remain a subdepartment of the biochemical research 9 laboratory? 10 A. The biochemical research laboratory name 11 changed earlier like - but industrial hygiene remained 12 as a section in the -- Industrial hygiene in 13 toxicology was more or less separated and made a unit 14 in about 1970. 15 Q. Okay. If I'm understanding you, then: In 16 the early years industrial hygiene and toxicology were 17 two, like, parallel groups or offices; but both were 18 in the biochemical research lab, or whatever it was 19 called, during the different years. Is that the shape 20 of it? 21 A. I will ask you to repeat that one. 22 Q. From an organizational standpoint, the 23 toxicology department was part of the biochemical 24 research lab. 25 A. Yes. 368 1 Q. During all the years you were at Dow. 2 A. No. 3 Q. No? Changed around 1970? 4 A. Yes. 5 Q. Okay. And from the beginning of the 6 industrial hygiene program at Dow, up until around 7 1970, industrial hygiene was also part of the 8 biochemical research lab. 9 A. That's right. 10 Q. And the industrial hygiene staff and the 11 toxicology staff worked together from time to time but 12 not in the same department from an organization 13 standpoint. 14 A. In what time frame? 15 Q. Up until about 1970. 16 A. Yes. They worked -- They were pretty 17 independent groups. 18 Q. And then in 1970 there was some 19 reorganization, and toxicology and industrial hygiene 20 were merged together. And that's when you were 21 director. 22 A. Yes. 23 Q. Okay. And so far as you know, toxicology 24 and industrial hygiene remained in one group up until 25 the time you retired in 1979. 1 A. I don't remember. 369 2 Q. But the medical department during none of 3 the 42 years you were with the company was in charge 4 of industrial hygiene, was it? 5 A. No. 6 Q. And I think you told us that the reason that 7 the toxicology department was created at Dow was 8 because of Dr. Willard Dow's concern for the health 9 and safety of people working in the Dow plants. 10 A. Yes. 11 Q. And that this concern was triggered or the 12 catalyst for creating the department with some 13 unfortunate incident where some workers were injured 14 by some chemical exposure in a plant. Do you recall 15 that? 16 A. Yes. 17 Q. And wasn't it the case, then, that the 18 toxicology lab really had a charter to know about the 19 toxicity of the materials that workers in the Dow 20 plants would encounter in doing their work in the 21 plants? 22 A. Our charge really was to learn as much as we 23 could about the toxicological effects of materials, 24 yes. 25 Q. And one of the ways you did that was to test 370 1 all the materials that were used at Dow for which you 2 couldn't find toxicological information already 3 existing in the literature? 4 A. That was our purpose; but, of course, that 5 took over a number of years to accomplish that. 6 Q. All right, sir. But basically where the 7 toxicity of a material used in the Dow plant was 8 unknown, that - that material would have been on your 9 list of materials to investigate? 10 A. As much as was humanly possible with the 11 staff we had at that time. 12 Q. All right, sir. But if a material that was 13 used in Dow plants was already written up in the 14 literature, discussed in the literature, was it the 15 case, then, that you relied on what was in the medical 16 and scientific literature about the material and did 17 not test those materials? 18 MR. PIERCE: Objection to the form 19 of the question. It's ambiguous and 20 essentially, even though it does not 21 use the word "or," contains the 22 elements of a compound question. 23 A. I guess I'll have to have you rephrase it. 24 Q. If a material used in Dow plants during 25 those years that you worked for the company was 371 1 reported in the medical and scientific literature from 2 a toxicological standpoint, would you still go ahead 3 and test that material for toxicity or would you 4 alternatively just rely on what was in the literature? 5 MR. PIERCE: Continue the 6 objection. 7 A. I don't believe there was any set program. 8 We tried to take advantage of any published 9 information and not to repeat any particular work, if 10 we felt that it was all right, in our judgment. 11 Q. All right, sir. So, given the resources 12 that you had, you had to set priorities, I suppose, on 13 what you were going to do tox. testing on. True? 14 A. Always. 15 Q. But one of the resources that you had 16 available would have been the medical and scientific 17 literature that existed in any given year. True? 18 A. Well, certainly parts of it. 19 Q. How do you mean -- What do you mean "parts 20 of it"? 21 A. Well, I'm sure we didn't have a library that 22 had every journal in the world or article in it. 23 Q. Well, I think you told us that if there was 24 anything that you needed or wanted, your librarian at 25 the Dow - the main plant could always get it for you. 372 1 Wasn't that so? 2 A. They made an effort if it was requested, 3 yes. 4 Q. Okay. Well, what I was wondering, though, 5 was that if, in fact, a material was reported in the 6 medical literature to where you had toxicological 7 information available to you on it, then that would 8 have been a material that you wouldn't ordinarily test 9 for toxicity. 10 A. Yes. 11 Q. And it was the case, wasn't it, that Dow 12 didn't do any toxicological testing of asbestos? 13 Isn't that so? 14 MR. PIERCE: Do we have a time 15 frame here? Ever? I mean... 16 MR. BLANKS: Well, I think the 17 implied time frame would be during 18 Dr. Rowe's employment there. So, let 19 me -20 (By Mr. Blanks) 21 Q. Prior to your retiring, sir, did Dow, to 22 your knowledge, do any toxicity testing of asbestos? 23 A. I don't remember that we did. 24 Q. Have you thought about that, given that 25 we've visited over the course of days and knowing you 373 1 were expecting to depose further on the topic? 2 A. The problem, as I understood it, with 3 asbestos was primarily inhalation. And, to my 4 knowledge, we did not do any inhalation work on 5 asbestos. 6 Q. All right. Was it the case, Dr. Rowe, that 7 while you were at Dow that Dow did not do any analysis 8 of thermal insulation products for asbestos content? 9 A. I don't know. 10 Q. Wasn't it a fact that the Dow engineering 11 department or its equivalent did, in fact, write 12 specifications for thermal insulation to be used in 13 Dow plants? 14 A. I don't know. 15 Q. Do you recall being - being asked to do any 16 toxicology testing of any kind of materials that Dow 17 purchased over the years? Would this have been part 18 of the normal procedure? 19 A. I don't remember. Itcertainly wasn't 20 routine. 21 Q. It was not routine? 22 A. No. 23 Q. Could you briefly explain to me what the 24 routine was, then, in those - the first decade or so 25 that you were doing toxicology work? - the routine in 374 1 terms of deciding what would be tested in your labs or 2 sent for testing in outside labs. 3 A. There were a number of factors that would 4 have been considered. One, what the ultimate end of a 5 product was. Was it something that we were going to 6 take to Food and Drug? We would -- It may not have 7 been tested in any way outside in that - because this 8 was a new application. Then we would have certainly 9 been involved. That type of thing. 10 Q. So, during some of these years you were with 11 Dow, the company was in the drug business, the 12 pharmacology business? 13 A. What time frame? 14 Q. I don't know. Perhaps you could tell me. 15 A. I can't remember the dates when Dow engaged 16 first with LePetite and then created Dow 17 Pharmaceutical, but we had little to do with that in 18 the early - early part of it. There was a time when 19 some of the pharmacologists from the Dow 20 Pharmaceutical laboratory in Indianapolis were 21 transferred to Midland as a part of our reorganized 22 laboratory. But otherwise I had nothing to do with 23 the pharmaceutical side. 24 Q. Okay. So, Dow Pharmaceutical was, I'm 25 inferring, a subsidiary of Dow? 375 1 A. Yes. 2 Q. And it was based in Indianapolis? 3 A. (Nodding affirmatively) 4 Q. And they had their own laboratory there? 5 A. Yes. 6 Q. And it's just that some of those scientists 7 from that laboratory were later transferred to your 8 lab in Midland? 9 A. For a period of short time. I can't 10 remember just the reason why. 11 Q. But as a general rule, then, your toxicology 12 lab in Midland did not specifically do studies of new 13 drug formulations. 14 A. That is true. 15 Q. Okay. So, the routine for your lab in 16 Midland would have been to investigate new products 17 being formulated by Dow, for one thing? 18 A. Or synthesized or formulated for some 19 particular purpose. 20 Q. Okay. And would it also have included as 21 part of the routine to investigate materials that Dow 22 was purchaseing to use in the making of its products? 23 A. To some extent, anyway. 24 Q. All right. And to what extent did the 25 routine of the toxicology lab in any of these years 376 1 involve testing, then, materials that were present in 2 the workplace in the Dow plants other than those in 3 the products you were making or the raw materials you 4 were buying? 5 A. The -- From the standpoint of occupational 6 exposure? 7 Q. Yes, sir. 8 A. This was our prime charge at the very 9 beginning. 10 Q. Was to consider any of the potential - 11 potentially harmful occupational exposures that could 12 occur in the plant at Dow? 13 A. We tried to identify them, yes. 14 Q. All right, sir. You said that Dow had not 15 done any inhalation tests on asbestos at least by the 16 time you left the company. 17 A. I do not recollect any. 18 Q. All right, sir. Would you say that asbestos 19 as it might be encountered in Dow's plants was a 20 potential - potentially harmful occupational exposure 21 that the toxicology department did identify? 22 MR. PIERCE: Objection to the form 23 of the question; assumed facts not in 24 evidence. 25 MR. ALMQUIST: I also object on 377 1 grounds it's ambiguous. It doesn't 2 contain enough information for an 3 answer. 4 A. Insofar as asbestos was concerned, again it 5 is my recollection that we - whatever was done in the 6 industrial hygiene area was done as a result of the 7 whatever was in the literature and the A.C.G.I.H. 8 recommendations. 9 MR. DAVIS: Can you ask the 10 witness to speak up some? 11 MR. ALMQUIST: Doctor - 12 MR. PIERCE: V. K., try to speak a 13 little bit louder, if you can; okay? 14 THE WITNESS: Oh. Sorry. 15 Q. So, you say the industrial hygiene response 16 at Dow to any potential asbestos exposures was based 17 on what was existing in the literature during the 18 particular years that - 19 A. That's my understanding. 20 Q. Okay. And, in fact, there was published 21 literature regarding asbestos toxicity and its hazards 22 from inhalation that did exist in the literature 23 during all the years you worked for Dow, wasn't there? 24 MR. PIERCE: Wait. When you say 25 "all the years," you mean starting in 378 1 1937? 2 MR. BLANKS: Yes, sir. 3 A. I'm not familiar with the dates of the 4 publications on asbestos. 5 (By Mr. Blanks) 6 Q. All right, sir. Are you -- You are aware, 7 though, that there are articles in the medical and 8 scientific and industrial hygiene literature going 9 back even to the late Thirties that do address 10 asbestos as an occupational exposure hazard, aren't 11 you? 12 A. That's my understanding. 13 Q. Dr. Rowe, did Dow at any time that you were 14 there rely on manufacturers like Johns-Manville or 15 Owens-Illinois or Owens-Corning Fiberglas for 16 information about the health effects of asbestos 17 inhalation? 18 A. I can't be specific. That was common 19 practice, but that was not my bailiwick. 20 Q. Okay. Well, I don't mean to belabor this 21 point, although Mr. Pierce will probably tell me I 22 certainly must mean to belabor the point. 23 MR. PIERCE: Of course. 24 Q. Let me start over. But -- I mean, I think 25 you've told us that Dow didn't do tox. testing on 379 1 asbestos and it didn't do inhalation studies for 2 asbestos dust and there was literature available 3 during those different years that you were doing tox. 4 work that Dow would have relied on in setting up its 5 industrial hygiene program and carrying it on. 6 I'm just wondering if any effort was made in 7 the toxicology department to get information from 8 those companies that were manufacturing and selling 9 asbestos insulation and other asbestos products to 10 Dow. 11 MR. PIERCE: Objection to the 12 characterization of his previous 13 testimony. 14 But go ahead. 15 A. I don't know. 16 Q. Is it the case, you think, that you never 17 asked for any information from an asbestos insulation 18 manufacturer about its products and the asbestos 19 hazard that they might pose to workers? 20 MR. PIERCE: By "you," you mean 21 V. K. Rowe? 22 MR. BLANKS: Yeah. 23 A. I do not remember doing any such thing. 24 However, I would add that that would have been normal 25 practice in the industrial hygiene area for literature 380 1 on materials that were being purchased and used in the 2 plant. But I don't have any personal knowledge of 3 that. 4 (By Mr. Blanks) 5 Q. All right, sir. If such information were 6 requested from a manufacturer of asbestos insulation 7 information about "What do we need to know about the 8 health effects of this product?," is that something 9 that would have been put in a file at Dow in the tox. 10 department or the industrial hygiene department, in 11 your experience? 12 A. I don't know. I would expect so. 13 Q. Were there ever times when you, yourself, 14 requested of a manufacturer information on the 15 toxicity of products that Dow was buying from them? 16 A. I must have, but I don't recollect any 17 specifics. 18 Q. Okay. Do you recollect, sir, that what 19 information you got as a matter of routine you would 20 have put in a file on that material or that irritant 21 or whatever it was? 22 A. Oh, yes. 23 MR. PIERCE: Objection to the 24 form. 25 Q. Dr. Rowe, if Owens-Corning Fiberglas or 381 1 Owens-Illinois had represented to Dow that their Kaylo 2 insulation was nontoxic, is that something that you 3 would have relied on? 4 A. Not with - without parameters of exposure 5 being delineated. 6 Q. Can you tell us, Dr. Rowe, when Dow began to 7 enforce rules to protect workers potentially exposed 8 to asbestos from breathing asbestos dust and fiber? 9 MR. PIERCE: Objection to the form 10 of the question; assumes facts not in 11 evidence and it's ambiguous. 12 A. I don't know. 13 Q. Do you believe, sir, that during any years 14 Dow had on its premises workers who were potentially 15 exposed to asbestos in their work? 16 A. Would you repeat, please. 17 Q. Yes, sir. I was wondering if you believed 18 that at any time you worked for Dow that there were on 19 Dow premises workers potentially exposed to asbestos 20 on the premises. 21 A. Oh, yes. 22 Q. Do you recall, sir, any steps Dow made 23 between 1970 and 1973 when you were the director of 24 toxicology and industrial hygiene to set out rules to 25 protect workers potentially exposed to asbestos on Dow 382 1 premises? 2 A. I don't -- I don't remember. 3 Q. Can you recollect any from any prior time? 4 A. No. 5 Q. Was it your belief in the early 1960's, 6 Dr. Rowe, that breathing asbestos dust would not cause 7 disease under any circumstances? 8 MR. PIERCE: In any quantity, any 9 amount? You're not quantitizing 10 this at all. Are you quanti - 11 MR. BLANKS: Well, no. I meant - 12 MR. PIERCE: Any amount? 13 MR. BLANKS: My question was - 14 MR. PIERCE: I think it's very 15 ambiguous as stated. 16 But go ahead. Sorry. 17 (By Mr. Blanks) 18 Q. I was asking - Let's try again - your belief 19 in the early 1960's whether or not breathing asbestos 20 dust in an occupational setting could - could or 21 wouldn't cause disease. 22 MR. PIERCE: Continue the 23 objection. 24 A. That goes back to the fundamental philosophy 25 that there is no such thing as a nontoxic material. 383 1 It's all a matter of how much and under what 2 conditions. If an exposure is too great, you'll have 3 adverse effects. If it's below what is ordinarily 4 thought to be or considered to be a safe level, the 5 odds are very poor of an adverse effect. All depends 6 on how much and under what conditions. 7 Q. All right, sir. So, with that in mind, was 8 it your belief in the early Sixties, then, that there 9 was some level of asbestos dust exposure that one 10 could have that would cause disease? 11 A. That would cause? 12 Q. Yes, sir. 13 A. My recollection of the literature is that 14 there were documented cases years ago. 15 Q. And "years ago" would take us back at least 16 to the early Sixties? 17 A. I don't know the time frame when these 18 articles were published. 19 Q. We'd just have to look to the articles, 20 themselves, to see the dates for them? 21 A. Yes. 22 Q. But it would have been the case, then, that 23 Dow's biomedical research laboratory staff, including 24 its toxicology department and the other professionals 25 working there, at least would have had many, if not 384 1 most or all, of this medical literature available to 2 it. True? 3 MR. PIERCE: Objection to the form 4 of the question. It's unanswerable as 5 asked, requires speculation as to the 6 mind and activities of others. 7 But answer it to the best of your 8 ability. 9 A. Well, certainly there were - there was some 10 literature that was available to people at that time. 11 Q. And it would also, as we mentioned before, 12 have been available in the decade of the Fifties and 13 the Forties, as well, documented cases of asbestosis 14 from occupational exposures. True? 15 A. That's my understanding. 16 Q. All right, sir. Dr. Rowe, had you known 17 from the suppliers or the manufacturers of asbestos 18 insulation that Dow used that these manufacturers' own 19 field installers of insulation had developed 20 asbestosis in, say, the Forties or the Fifties, would 21 you have urged Dow to do more to protect people 22 working in its plants from asbestos exposures? 23 MR. PIERCE: Once again, are you 24 going to leave the question that vague 25 with no numbers and no idea of 385 1 exposure but just that general 2 question? - because I think it's 3 unanswerable as asked. 4 But try. 5 A. Our efforts in a situation like that would 6 have been to recognize the recommended levels of 7 exposure which were considered by the Government 8 agencies and so forth to be without particular 9 hazard. 10 Q. So, are you saying, then, that if a 11 Government agency said that a particular exposure 12 level was free of hazard that would have been all you 13 needed to know and it would not have been instructive 14 to you to know that people using the products, putting 15 the products in - the insulation in - were, in fact, 16 getting sick? 17 MR. PIERCE: Objection to the 18 form; compound question and ambiguous 19 and unintelligible in parts. 20 A. That's impossible to judge without knowing 21 what concentrations of exposure they received. 22 Q. So, had you been told that, let's say, 23 insulators working for Johns-Manville or some other 24 company were developing asbestosis, you would have 25 wanted to know about the actual exposure levels these 386 1 men were encountering in doing their work. 2 A. I don't know that anything other than -- And 3 I don't really know what is in the literature, except 4 the literature and the experience was the basis of my 5 understanding of the acceptable levels as promulgated 6 by the A.C.G.I.H. and U. S. Public Health Service. 7 And we tried and I think, for all practical purposes, 8 we did control our exposures to such a level. That 9 was our -- That was our basic premise. We had 10 guidelines. We tried to follow them to the best of 11 our ability. 12 Q. Do you recall ever doing any testing to see 13 whether these guidelines were, in fact, adequate to 14 protect the workers exposed at or below the guideline 15 levels? 16 MR. PIERCE: Is that for any 17 compound at all, or are we speaking 18 about asbestos? 19 Objection to the question as 20 completely ambiguous. 21 Go ahead. 22 A. Are you speaking of asbestos? 23 Q. Well, I phrase it generally; and then I 24 follow up with a question on asbestos. 25 A. Well, please restate. 387 1 Q. Okay. The first question was, was it the 2 case, then, that Dow relied on whatever guidelines 3 were existing at a particular time to decide whether 4 or not to protect workers from exposures. You relied 5 on the guidelines from the A.C.G.I.H.? 6 A. Yes, we did. But we also had one or two 7 occasions where we did not believe that the guidelines 8 were adequate and we revised and made our own. 9 Q. And I take it you made yours stricter than 10 what the A.C.G.I.H. guidelines were. 11 A. That's right. 12 Q. What led Dow to do that? What made you 13 suspicious of the guideline level? 14 MR. PIERCE: Compound question; 15 objection to the form. 16 A. Okay. Please come back with your question 17 again so I can put it... 18 Q. All right, sir. What was it in those couple 19 of instances that caused Dow to be suspicious of the 20 guideline for whatever the material was? 21 A. People were complaining and reporting to the 22 medical department not feeling well. And this caused 23 us to examine the exposures that were being received 24 in their operation - analyzing the operation. And if 25 those exposures when documented resulted in adverse 388 1 effects, we would conclude and did conclude in several 2 instances that the exposure levels were 3 inappropriate. And, so, we set about to find out what 4 an appropriate level was. 5 Q. So, if I understand you, the medical 6 department alerted you to some problems or complaints 7 among workers who were being exposed to particular 8 materials. Correct? 9 A. Yes. 10 Q. And then the response to that was for the 11 industrial hygienists to go out and actually measure 12 the exposure levels those workers were encountering. 13 True? 14 A. Yes. 15 Q. Did you find that the exposure levels were 16 at or below the guideline levels for the material? 17 A. I don't remember specific data. 18 Q. Well, I mean as opposed to finding that the 19 exposures were excessive. 20 A. The -- Using the guidelines did not explain 21 what was happening. 22 Q. Okay. So, it was apparent from the medical 23 information you had that the guidelines weren't 24 adequate. 25 A. That'sright. 389 1 Q. But you surely must have made sure that the 2 exposures were within the guidelines in order to reach 3 the conclusions the guidelines weren't working, right? 4 A. I presume that's - that's an accepted fact. 5 Q. Yeah. It would seem the first thing that 6 you'd do would be to go out there and, let's say, find 7 out what their - what are the exposure levels. And if 8 the exposure levels were above the guideline, you'd 9 say, "Well, that's the problem. Let's get it down to 10 the guidelines," right? 11 MR. PIERCE: Objection to the 12 form; asked and answered several 13 times. 14 A. That's true. You had to study in some cases 15 the individual's work habits, why he was getting 16 excessive exposure, and why other people doing the 17 same job didn't. That's part of industrial hygiene. 18 Q. Yes, sir. Because individuals have both 19 different habits and, also, they vary in their 20 susceptibility to occupational disease, don't they, 21 given the same exposure levels? 22 A. Well, no two individuals are the same. 23 Q. Okay. Do you recall what any of those 24 materials were for which Dow wrote stricter exposure 25 standards for its own plants? 390 1 A. As I recollect, the first one was carbon 2 tetrachloride. 3 Q. Yes, sir. Can you recall any of the others? 4 A. I'm not sure about the - the stimulus for 5 the work we did on most of the aliphatic chlorinated 6 hydrocarbons. I don't recollect that that came 7 through the medical department, but it could have. 8 Q. Well, does that mean that you did at Dow 9 tighten up the guidelines or the standards for the 10 aliphatic chlorinated hydrocarbons for some reason or 11 other? 12 A. Yes. I can remember one other -- One 13 specific one was vinyl chloride. 14 Q. How far back in time or what period can you 15 place these actions in where you tightened up the 16 guidelines below what was generally considered 17 acceptable? 18 A. I can't give you the time frame. If you'll 19 look at our publications, they'll tell you. 20 Q. Oh, okay. Very good, sir. You said a few 21 minutes ago that - when I asked you about whether 22 information concerning asbestos disease in insulators 23 working for the manufacturers like Johns-Manville or 24 Armstrong or others would have been helpful to you 25 that you actually did control exposures to the 391 1 guideline levels at Dow. Correct? 2 MR. PIERCE: Objection to the 3 characterization of previous 4 testimony. 5 A. I -- I can't answer that question 6 positively. I don't know. 7 Q. Well, would you have found useful to you 8 information from asbestos insulation installer 9 companies about the occurrence of disease in their 10 employees? Is that information that would have been 11 useful to you at Dow? 12 A. If it was predicated on with quantitative 13 analyses. 14 Q. Would not the mere fact of reports of 15 asbestosis in insulators have caused you to at least 16 go out and confirm the exposure levels you were facing 17 having in your plants, if any? 18 A. It's my understanding that's what was done. 19 Q. Can you recall when that came to be done and 20 what - approximately when? 21 A. No. 22 Q. Can you recall for us, Dr. Rowe, what it was 23 that was done at Dow in, let's say, the Forties to 24 control exposures to airborne asbestos dust? 25 A. I don't know. 392 1 Q. Sir? 2 A. I do not know. 3 Q. Would you have any idea what was done to 4 control exposures to airborne asbestos dust in the 5 Fifties? 6 A. No. I don't know. 7 Q. Or in the Sixties? 8 A. I don't know. 9 Q. How about in the Seventies when you were the 10 director of toxicology and industrial hygiene, '70 to 11 '73? 12 A. I don't know. 13 Q. Can you point us to any evidence that the 14 exposures to airborne asbestos dust that did occur in 15 Dow plants were, in fact, below the guideline levels 16 for any particular year prior to your retirement? 17 A. I don't know. 18 Q. Did Dow ever request that there be 19 monitoring for exposures of workers potentially 20 exposed to asbestos during your years with the 21 company? 22 MR. PIERCE: Objection to the 23 form. 24 You're asking not if he requested 25 it but if anybody anyplace at Dow 393 1 requested it; is that correct? 2 A. I don't know. 3 Q. Let me start over, then. Did you ever 4 request there be monitoring of workers potentially 5 exposed to asbestos in Dow plants? 6 A. Not to my knowledge. 7 Q. Are you aware, sir, of Dr. Adams or 8 Mr. Hoyle or any of the others working in your group 9 or in the I. H. group requesting that workers 10 potentially exposed to asbestos be monitored for their 11 exposures? 12 A. I know there was monitoring done. And 13 Mr. Hoyle would be the person that would be 14 responsible for that knowledge. 15 Q. Okay. In answers to interrogatories I think 16 the company, Dow, has said that in the Texas plants 17 that monitoring began in 1968. Do you have any 18 knowledge of that? 19 A. No. 20 Q. Do you have any recollection of when 21 monitoring of workers potentially exposed to asbestos 22 would have begun up in the Midland plants? 23 A. I don't recall. 24 Q. Do you recall, sir, if there was ever any 25 effort to try and identify who were the workers 394 1 potentially exposed to asbestos in Dow plants? 2 A. I don't know. 3 Q. Could you tell us when your group at Dow 4 learned of the hazardous properties of airborne 5 asbestos and its potential to cause, say, lung cancer? 6 A. I don't remember. 7 MR. PIERCE: Objection to the 8 form. 9 A. I do not remember. 10 Q. Would you recollect, sir, that that was not 11 until the late 1960's that Dow learned of the 12 hazardous properties of airborne asbestos? 13 A. I don't -- I don't know. 14 Q. So, you have no recollection either for 15 yourself or for what was - what was being done in the 16 toxicology or industrial hygiene group and its 17 awareness of the hazards of airborne abestos? 18 MR. PIERCE: Objection to the 19 compound nature of the question. 20 A. Well, I was certainly aware that there was a 21 hazard due to asbestos. The control of that was the 22 responsibility of the industrial hygiene people. And 23 I knew they were -- I knew they made measurements, but 24 I do not know any of the detail. I don't recall, 25 anyway, if I saw them or not. 395 1 Q. Okay. And you can't place that in a time 2 frame for us? 3 A. No. 4 Q. Is it your understanding that the medical 5 and toxicology professionals at Dow learned of the 6 hazardous properties of airborne asbestos prior to 7 articles being published in the medical and scientific 8 literature? 9 A. I have no such knowledge. 10 Q. Would your awareness of the hazardous 11 properties of airborne asbestos have actually come 12 from the published medical and scientific literature 13 as opposed to some independent work that was being 14 done at Dow? 15 A. Any information that we had came from either 16 published literature or word of mouth from someone. 17 Q. But you have no -18 A. I don't -- I don't recall. 19 Q. All right, sir. Can you tell us when, if 20 ever, the Dow industrial hygiene department banned the 21 purchase of asbestos-containing insulation for use on 22 Dow premises? 23 A. No. 24 Q. How about asbestos-containing gaskets? 25 A. Beg your pardon. 396 1 Q. Asbestos gaskets. 2 A. I don't know. What about asbestos cements? 4 A. I don't know. 5 Q. Was there ever a time that your 6 responsibilities with Dow included any dealings with 7 the Texas Dow plants? 8 MR. PIERCE: Objection to the form 9 based on vagueness of the terminology. 10 A. Yes. We had relations with the Texas plant. 11 Q. How far back would that go, from its being 12 constructed? 13 A. I can't give you dates, but a long time d 00 14 ago. 15 Q. Yes, sir. 16 A. After -- Shortly after they were in 17 operation, I know that their - our reports were 18 available to them. If they had questions, they came 19 back to us. 20 Q. I'm thinking you told us that in the 21 beginning the Texas plants didn't have their own 22 toxicology lab or staff or even industrial hygienists 23 and they relied on the Midland group for those 24 services. Would that be correct? 25 MR. PIERCE: Objection to the 397 1 form; mischaracterization of the 2 testimony he gave last time. 3 But go ahead. 4 A. Well, in the early days they did not, to my 5 knowledge, have - I know they did not have any 6 toxicology facilities. The -- I don't know when the 7 industrial hygiene work began down there but -- They 8 did have industrial hygiene early on, but I don't know 9 when. 10 Q. And wasn't it the case that somewhere along 11 the way that the Freeport plant actually got its own 12 toxicologist? Do you remember that? 13 A. I don't remember the dates. 14 Q. Do you remember that it happened, though? 15 A. Oh, yes. 16 Q. Okay. So, though we're not clear on the 17 dates - and I appreciate you don't remember them - for 18 some period of time at least the Freeport plant got 19 its industrial hygiene and toxicology services from 20 the Midland Dow employees? 21 MR. PIERCE: Objection to the 22 form. Once again, a 23 mischaracterization. Mischaracterizing 24 the exact same testimony 25 mischaracterized earlier and, also, 398 1 compound nature of the question. 2 A. Let's try again. 3 Q. In the beginning years the Freeport plant 4 was supported by Midland for any industrial hygiene 5 consultation and toxicology consultation. True? 6 MR. PIERCE: Continue the 7 objection. 8 A. That's -- That's my recollection. 9 Q. Okay. And then eventually they had their 10 own folks doing I. H. work and tox. work at Freeport? 11 A. Yes. The tox. lab early in the formative 12 stages was designed for primarily just the first 13 stages of evaluation, not any comprehensive studies. 14 Q. Just a Class I - 15 A. Class I. That is correct. 16 Q. Okay. Even after Freeport had its own 17 toxicologists and its own industrial hygienists, did 18 it still have available the services of the Midland 19 tox. lab and industrial hygiene department? 20 A. Yes. 21 Q. Do you recollect, Dr. Rowe, that the 22 industrial hygiene and toxicology staff in Freeport, 23 Texas, was reporting up to the Midland group; or were 24 they autonomous from an organizational standpoint? 25 A. They were -- They reported to the medical 399 1 department in the Texas division. 2 Q. Do you have any explanation for why they 3 were organized under the medical department in Texas 4 versus the different organization in Midland? 5 MR. PIERCE: Are you asking that 6 he speculate or does he have knowledge 7 or... 8 MR. BLANKS: Just whatever his 9 understanding was. If you or I were 10 answering, we'd probably be 11 speculating; but Dr. Rowe might be able 12 to tell us. 13 A. The -- This type of work -- The medical 14 director - the first medical director - at the Texas 15 division, as I recollect, had - or had worked in the 16 medical department at Midland and was quite familiar 17 with this type of work. He'd been exposed to it over 18 a period of time. So, when he went down there, he was 19 the only logical person to develop and head up this 20 type of work. There was no other person down there at 21 that time that was in toxicology or -- And industrial 22 hygiene was in the medical department, which is not 23 dissimilar to many, many corporations. 24 (By Mr. Blanks) 25 Q. Yes, sir. I understand. We found it to be 400 1 common to be organized under the medical department. 2 Do you recall who this doctor was that first 3 went down there to Freeport? 4 A. As I recollect, it was Dr. Kilian. 5 Q. Do you know his first name? 6 A. Jack. 7 Q. And correct me if I'm wrong; but I'm 8 understanding from you that Dr. Kilian, who began with 9 Dow in Midland at the medical department in the plant, 10 acquired from his dealings with your group some 11 appreciation for toxicology and for industrial hygiene 12 to where he was not, let's say, totally ignorant about 13 those matters and had some appreciation for the 14 potential problems to deal with in the plant. 15 A. Yes. 16 Q. Dr. Rowe, do you believe that it was not 17 until the late 1960's that Dow's doctors knew that 18 workers exposed to sufficient levels of airborne 19 asbestos dust over a long enough period could contract 20 an asbestos-related disease? 21 A. I don't know. 22 Q. You have no belief on that one way or the 23 other? 24 A. I didn't know they had. 25 Q. That they had known? 401 1 A. I don't -- I have no knowledge that - or at 2 least I don't recollect any - any cases of asbestosis 3 at - at the Dow plant, that - that I know of. 4 Q. I'm sorry. I didn't mean to say that it was 5 by the late 1960's that Dow had cases of asbestosis or 6 at any time. I don't -- That wasn't part of the 7 question. 8 A. Oh. 9 Q. Let me try again, please, sir. I was asking 10 you if you believe that it was not until the late 11 Sixties that Dow's doctors knew or appreciated that 12 workers exposed to sufficient levels of asbestos dust 13 over a long enough time period could get an 14 asbestos-related disease. 15 MR. PIERCE: I'm going to object 16 to the form of the question. It calls 17 for speculation and knowing the minds 18 and state of knowledge of each 19 physician or other kind of doctor 20 within The Dow Chemical Company. 21 But go ahead and answer. 22 A. I don't know. 23 Q. Do you know of any Dow doctors who gave you 24 any reason to think before the late 1960's that they 25 had an appreciation for that possibility of 402 1 asbestos-related disease? 2 A. I don't remember. 3 Q. How about Dow industrial hygienists, do you 4 believe that it wasn't until the late 1960's that 5 Dow's industrial hygienists had an awareness that 6 workers exposed to sufficient levels of airborne 7 asbestos dust over a long enough time period could 8 contract an asbestos-related disease? 9 MR. ALMQUIST: Same objection. It 10 calls for speculation as to what 11 someone else knew. 12 A. I don't know. 13 Q. Is there any point in the time when you were 14 with Dow that you can say with any confidence that it 15 was your understanding that the industrial hygiene 16 department appreciated the possibility for 17 asbestos-related disease under certain exposure 18 conditions? 19 A. I know the industrial hygiene people that 20 were involved with monitoring asbestos were aware of 21 the - of the hazards of the material, yes; but I can't 22 put a time frame on it. 23 Q. Okay. And I think you've already told us 24 you can't really put a time frame on when you became 25 aware of this potential for asbestos-related disease 403 1 in workers sufficiently exposed. True? 2 A. I don't believe I said that, because early 3 early on there were articles and lectures at the 4 meetings and so forth about asbestos and so forth that 5 I do not have any specific data or time frame that 6 when I first knew of this. These things occurred over 7 a number of years and, really, I really had no 8 particular interest in asbestos as such because we 9 didn't - hadn't done any work on it, didn't know 10 anything about it. 11 Q. All right, sir. 12 MR. ALMQUIST: Okay. Is this 13 We've been going for about an hour 14 now. Can we take a break? 15 MR. BLANKS: Sure. 16 Are you ready for a break, sir? 17 THE WITNESS: Thanks. 18 (AT THIS TIME A BRIEF RECESS WAS 19 TAKEN, AND THE PROCEEDINGS THEREAFTER 20 RESUMED AS FOLLOWS:) 21 (By Mr. Blanks) 22 Q. Dr. Rowe, had you learned in 1960 that cases 23 of mesothelioma had been reported in petrochemical 24 plant workers, would you have recommended better 25 industrial hygiene controls for workers potentially 404 1 exposed to asbestos in Dow plants, sir? 2 MR. PIERCE: Objection to form; 3 improper hypothetical. 4 But go ahead. 5 A. I don't know. 6 Q. You don't have an opinion about how you 7 would have responded to such information in 1960? 8 A. Well, it would have depended upon the 9 quantitative aspects of the situation. 10 Q. You mean how many cases of mesothelioma were 11 reported in a particular article or what? 12 A. What kind of exposure had occurred to have 13 caused that effect. And then I would certainly be 14 interested in that in comparison with what our 15 industrial hygienists had found in our own plants. 16 Q. So, at the very least, then, if you had 17 learned of such case reports in 1960, would you have 18 felt the need to inquire further about the exposure 19 levels that the - that the victims had reported? 20 MR. PIERCE: Objection to form; 21 asked and answered, essentially 22 argumentative. 23 A. Well, it was my impression that this 24 particular manifestation was known before that 25 before that time. And, as far as I know, it was 405 1 associated with rather severe exposures. But I don't 2 know what the quantitative aspects are. 3 Q. Had you known, Dr. Rowe, in 1950 that 4 insulators in refineries were potentially exposed to 5 asbestos in hazardous amounts, would that information 6 have been useful to you in your work at Dow? 7 A. Not necessarily. 8 Q. Would that be because you were already then 9 aware of the potential for asbestos disease in 10 insulators in 1950 under some levels of exposure? 11 MR. PIERCE: Objection to the 12 form; leading. 13 A. The problem I have with your question is the 14 lack of quantitation. I certainly do not deny the 15 fact that heavy exposures can produce mesothelioma and 16 whatever; but, again, unless I have information 17 relative to the intensity of exposure, it doesn't mean 18 too much when I know excessive exposure is likely to 19 do this - heavy exposure. 20 Q. Okay, sir. If I'm understanding you, then, 21 you would have appreciated in 1950 that intensive or 22 heavy exposures could in some cases cause 23 asbestos-related disease. True? 24 MR. PIERCE: Objection to the 25 vagueness of the question. 406 1 A. Well, I think it was fairly well understood 2 that heavy exposure was capable of causing this type 3 disease. 4 Q. Okay. And the significant thing to you, 5 then, would not be the reports of asbestos in 6 connection with a particular disease but rather how 7 much exposure did it take to get there: is that what 8 you're telling me? 9 A. That's -- That's right. 10 Q. Because you keep coming back to 11 quantification as being a significant fact to you. 12 A. To me, it's very important. 13 Q. So, in response to any case report of an 14 asbestos-related disease that might appear in the 15 literature, you would first want to know what were the 16 exposure levels, how long was the man exposed over his 17 work before - before the report would have any 18 significance to you. Is that true? 19 A. That's true. 20 Q. And what was done at Dow during your years 21 in the toxicology department and with the industrial 22 hygiene department to actually investigate the 23 exposure levels that went with these disease reports? 24 MR. PIERCE: Is that exposure 25 levels to anything or exposure levels 407 1 to asbestos? 2 MR. BLANKS: Well, we're talking 3 about these case reports of 4 asbestos-related disease. And I -- I 5 mean, I'm understanding Dr. Rowe to say 6 quantification is the criticalpoint. 7 (By Mr. Blanks) 8 Q. So, what steps did you take at Dow to try to 9 find out about the exposure levels that went with 10 these reports of mesothelioma or lung cancer or 11 asbestosis in insulators? 12 A. I don't know. 13 Q. Do you know that any - 14 A. No. I did - 15 Q. -- any investigation was made, sir? 16 A. I did not make any. 17 Q. Are you aware of any that was made by anyone 18 at Dow? 19 A. I just don't know. 20 Q. So, if I may come back to the earlier 21 question, then, would it have been news to you in 1950 22 that insulators working in refineries had a potential 23 for injurious exposure to asbestos? 24 A. Would you please repeat that. 25 Q. Yes, sir. I'm speaking of refineries and 408 1 not chemical plants. 2 A. Speaking of what? 3 Q. First of all, I was speaking about 4 refineries as opposed to chemical plants, - 5 A. Oh, okay. Okay. 6 Q. -- so that's clear. But would it have been 7 news to you in 1950 that insulators working in 8 refineries could potentially have disease-causing 9 exposures to asbestos at work? 10 A. I know nothing about the exposures that 11 occurred in refineries; so, I don't know. I tried to 12 say earlier that there is no such thing as a nontoxic 13 material. If you have an excessive exposure, you're 14 apt to have trouble. If you have a so-called safe 15 exposure, the potential for it is very small; but 16 there's always potential. 17 Q. And because there's always potential, it's 18 important to measure the levels of exposure? 19 A. Certainly. 20 Q. And to try and validate whether those 21 exposure levels are safe or, alternatively, have the 22 possibility of causing disease, correct? 23 MR. PIERCE: Objection to the 24 form; vague and compound, confusing. 25 A. I have to keep coming back to the 409 1 quantitative aspects and the association of those 2 exposure levels - exposure intensities, duration, 3 concentration, and of the effect. And if you don't 4 have that, it's awfully difficult to know how much 5 significance to place upon a -- You have people 6 working with materials for years and years and no 7 problems, you assume that that's a pretty safe level. 8 On the other hand, if you have people working in a 9 high concentration and they become ill or - in one way 10 or another, you do your best to reduce exposures as 11 far as you reasonably can and certainly to the 12 guidelines that are present knowledge or knowledge of 13 the times suggests. 14 Q. Okay. So, you'resaying that the data - the 15 facts - are important to the toxicologist, as well as 16 to the industrial hygienist. 17 A. Certainly. 18 Q. The exposure levels; the durations of 19 exposure; and, as well, the medical effects of 20 exposures. 21 A. Yes. 22 Q. And absent that data, it's not really 23 possible to properly formulate an effective industrial 24 hygiene program, is it? 25 MR. PIERCE: Objection to the 410 1 form. 2 A. I -- I guess I don't quite understand your 3 question. Can you try it again? 4 Q. Well, I guess what I was getting at is that 5 as a scientist it's important to you to know, if 6 you're concerned about occupational health, just what 7 the levels of exposure to any particular toxic 8 material are that your workers are facing, correct? 9 A. That's right. 10 Q. And the only way to know that is to go out 11 and take samples and monitor it and gather the data; 12 isn't that true? 13 A. That's one part of it. 14 Q. And another part of occupational health - of 15 an occupational health program is being aware of the 16 duration of the exposures that the men face to the 17 toxic materials. True? 18 A. Yes. 19 Q. And the only way to know that,again, is to 20 go out and gather the data, observe, record the time 21 they spend doing these things in conjunction with the 22 measurements, correct? 23 MR. PIERCE: Objection to form of 24 the question. It's compound and 25 limiting the possible answer. 411 1 A. I think the answer is "yes." 2 Q. And the final -- The final part of the data 3 that provides you some confidence in your program is 4 the medical data, correct? 5 A. Very important. 6 Q. And with a disease that has a long latency 7 period, this involves - would require long-term 8 medical surveillance of the workers potentially 9 exposed to the material. True? 10 A. Yes. 11 Q. Dr. Rowe, had you known in 1948 that 12 asbestos was thought to be a probable carcinogen, 13 would you have recommended that it be handled 14 differently at Dow than it was in 1948? 15 MR. PIERCE: Objection to the form 16 for vagueness and, also, improper 17 hypothetical. 18 A. I don't know. 19 Q. Do you think, based on your experience in 20 1948, after 11 years with the company, that 21 information about asbestos as a possible or probable 22 carcinogen would have been useful information to you 23 in the toxicology department? 24 MR. PIERCE: Objection to the 25 form; vague and compound. 412 1 A. Scientific information of this nature was 2 always of interest to us. 3 Q. Dr. Rowe, can you help me in any way to 4 understand the relationships between Dow and its 5 subsidiaries like Dowell Company? 6 A. The Dow - Dowell was a wholly owned 7 subsidiary. 8 Q. And it was involved in what, some 9 oil-related business? 10 A. Oil well treatments, as far as I know. 11 Q. Did your group ever provide toxicology or 12 industrial hygiene services to Dowell? 13 A. Yes. 14 Q. Can you recall any sort of specific 15 instances? 16 A. The -- I can't -- I can't recollect the 17 materials but the -- The materials that we worked with 18 for Dowell, as I recollect, were corrosion 19 inhibitors. They were used in the acid for oil 20 treatment. 21 Q. Did Dowell make any drilling muds any time 22 that you know of? 23 A. Beg your pardon. 24 Q. Did Dowell make or sell any drilling muds? 25 A. I don't know anything aboutDowell's 413 1 business except that they were in the oil business 2 the oil production business. 3 Q. Okay. How far back in time can you recall, 4 approximately, doing any kind of toxicology work for 5 Dowell? Back into the Forties, perhaps? 6 A. I just don't remember. It would have been 7 early. It wasn't late. 8 Q. Were they based in Tulsa? 9 A. I believe so. 10 Q. Did they have, to your knowledge, any 11 industrial hygienists or toxicologists at any time 12 that you were with the company? 13 A. Yes. 14 Q. Would that have been in the later years of 15 your Dow employment? 16 A. Again I can't put that in a time frame. 17 Q. I suppose you had some dealings with their 18 toxicologists or industrial hygienists somewhere along 19 the way. Would that be so? 20 A. At Dowell? 21 Q. Yes, sir. 22 A. To my knowledge, they did not have any 23 toxicologists. They had a -- They had an industrial 24 hygienist. At least one. I don't know. Maybe more. 25 Q. Do you recall that Dowell also had a medical 414 1 professional attached to the company, a doctor? 2 A. I don't remember. 3 Q. Were services that your group did for Dowell 4 charged back to Dowell? 5 A. I don't know. 6 Q. What about Dow Corning, was that also a Dow 7 subsidiary? 8 A. No. 9 Q. What was its relation to Dow, if any? 10 A. Dow Corning is a separate corporation owned 11 50 percent by Corning glass and 50 percent by Dow 12 Chemical. 13 Q. Did your -- Excuse me. Let me start again. 14 Did your group do any kind of tox. work or industrial 15 hygiene work for Dow Corning over the years? 16 A. Yes. 17 MR. PIERCE: Objection; asked and 18 answered at the last session. 19 A. Yes. 20 Q. Did they have an industrial hygienist, Dow 21 Corning? 22 MR. PIERCE: Do you have a point 23 in time or just any time? 24 A. It depends. They didn't early in the game, 25 but they did later. 415 1 Q. Do you recall who that person was? 2 A. One person who - who was there - Whether or 3 not it was the first one or what, I don't remember 4 was Larry Silverstein. 5 Q. He had begun his industrial hygiene work at 6 Dow, had he not? 7 A. Yes. 8 Q. And then perhaps transferred over to Dow 9 Corning later? 10 A. Yes. 11 Q. Is Mr. Silverstein a person that worked with 12 you or under you at any time at Dow? 13 A. He was one of our industrial hygienists. 14 Q. Working for Mr. Hoyle? 15 A. Yes. 16 Q. Can you recall, Dr. Rowe, any other Dow 17 subsidiaries or related companies, using that term 18 loosely, for which your group ever did any toxicology 19 work or industrial hygiene work? 20 MR. PIERCE: Objection to the 21 form. It's compound. The use of the 22 term "related company" is vague and 23 ambiguous. 24 But go ahead. 25 A. There were a few instances in which we did 416 1 some toxicological work for the pharmaceutical 2 division, only when their toxicology labs were 3 overwhelmed by the amount of the work they were doing. 4 And they just didn't have the capacity and we had the 5 capacity at the time and that was it. But we did not 6 do it on a routine basis, - 7 Q. Yes, sir. 8 A. -- only on special occasions. And, of 9 course, we did work for the various Dow divisions, 10 which is the Texas division and the western division 11 and eastern division, central division, and that sort 12 of thing. 13 Q. All of those being divisions of Dow Chemical 14 Company? 15 A. Yes. 16 Q. Okay. Can you think of any other companies 17 for whom your group ever did any tox. work or 18 industrial hygiene work, sir? 19 A. I don't recall any. 20 Q. Dr. Rowe, do you recall, sir, if anyone, 21 that you know of, ever requested that medical 22 surveillance be conducted at Dow of workers 23 potentially exposed to asbestos? 24 A. I don't know. 25 Q. Do you recall, Dr. Rowe, that it was ever 417 1 the case at Dow during your years with the company 2 that medical surveillance of workers potentially 3 exposed to asbestos did take place? 4 A. I have no specific information, but I have 5 to say that the workers were continuously under 6 medical surveillance. And what they did in that 7 particular area I don't know. 8 Q. You're saying that all of the Dow workers 9 were under medical surveillance to some extent? 10 A. To some extent, yes. 11 Q. And was that the case from the beginning of 12 your employment in 1937, that there was a medical 13 surveillance program? 14 A. No. There was not a corporate medical 15 department at that time. 16 Q. Would you remind me again when the corporate 17 medical department came into being, approximately? 18 A. I don't remember. 19 Q. By the Forties, wasn't it? 20 A. Yes. 21 Q. Were you, yourself, under amedical 22 surveillance program from the Forties on? 23 A. I would think so. We had our annual 24 physicals and that sort of thing. 25 Q. So, you actually had a hands-on physical by 418 1 the Dow medical department each year? 2 A. In the early days, yes. I don't know how 3 widespread it was, that program; but it was a general 4 program. And that was under the medical department's 5 operation; so, I do not know how it was set up. 6 Q. Do you know, sir, if there were any special 7 medical monitoring programs for any particular trade 8 or employee group at Dow that went beyond just this 9 general medical surveillance for all employees? 10 A. I don't know. 11 Q. Do you recall that any particular group of 12 Dow employees who might just be working with some 13 particular chemicals actually had biological 14 monitoring during any years? 15 A. I remember that we have had biological 16 monitoring but on quite a limited basis. The people 17 working in the chlorinated hydrocarbon area were 18 probably as a group observed as much as anyone or more 19 because of the potential, like, for carbon 20 tetrachloride and liver involvement because we knew 21 the consequences of excessive exposure and you 22 couldn't always be sure until medical surveillance 23 was -- Where we had a spot like that, more attention 24 was paid to it. 25 Q. Okay. When you said "because you couldn't 419 1 always be sure," what did you mean? Be sure of what? 2 A. You'd know what exposures always were with 3 individuals. 4 Q. I see. So that even though Dow had an 5 industrial hygiene program to control the exposures of 6 individuals working in the chlorinated hydrocarbon 7 department, it was a concern that some people might 8 have excessive exposures in spite of the controls. 9 A. That's true. 10 Q. And, therefore, the medical monitoring was a 11 good way to - to detect those excesses, if any 12 occurred. 13 MR. PIERCE: Objection to the 14 form - 15 A. Medical - 16 MR. PIERCE: -- of the question. 17 A. -- monitoring in those days was in its 18 infancy primarily because of the lack of analytical 19 facilities or - I shouldn't say "facilities" 20 capabilities to do analyses that were meaningful. 21 Q. And "in those days," what are we talking 22 about - the Forties, Fifties? When? 23 A. Yes. And beyond. Even today you can't use 24 medical monitoring for - because you don't have the 25 information that's necessary to do it. 420 1 Q. I'm sorry. Could you explain? I didn't... 2 A. Well, for instance, if you know with the 3 metabolites and how they're excreted and that sort of 4 thing, you can analyze for them. If you don't know, 5 you can't do it. You don't have enough method 6 available. 7 Q. Okay. 8 A. So, it's a -- It's a -- Personnel and 9 medical monitoring are very useful techniques if the 10 the capability for doing so is available. 11 Q. And they go together, if I'm understanding 12 you, personnel monitoring as well as medical 13 monitoring. 14 MR. PIERCE: Objection to the form 15 of the question; ambiguous and vague. 16 Q. The two complementary - 17 A. They complement each other. 18 Q. As part of an occupational health program in 19 the prevention of occupational disease. True? 20 A. I guess, yes. 21 Q. Okay. Was it Dow's policy in any year you 22 worked there to not protect workers from breathing 23 toxic chemicals or dust? 24 MR. PIERCE: I'm going to object 25 to the form of the question - 421 1 A. Please repeat that. 2 Q. Yes, sir. Was it Dow's policy -- In any of 3 the years that you worked there, was it a policy to 4 not protect workers from breathing toxic chemicals or 5 dust in the workplace? 6 MR. PIERCE: The question is 7 leading and is essentially 8 argumentative. 9 A. Again we go back to the quantitative aspects 10 of the industrial hygiene/toxicology pro - medical 11 problem. It's essentially impossible in any operation 12 to prevent all exposure. You try to keep the exposure 13 level to acceptable levels. Certainly if we knew 14 there was an excessive exposure, we would do our best 15 to do something about it. 16 Q. Then was it the policy at Dow in any years 17 you worked there to only provide protection for 18 workers when the exposures were above the guideline 19 levels? 20 MR. PIERCE: Objection to the 21 form. Objection to questions relating 22 to the policy of Dow. 23 A. Well, I don't - I don't believe that was a 24 policy but -- Would you restate your question and... 25 Q. Yes, sir. Focusing back on the quantitative 422 1 aspects, as you say, was it the Dow policy in any of 2 your years there to provide protection for workers 3 only where the exposures to toxic dust were in excess 4 of the guideline levels? 5 MR. PIERCE: Continue the 6 objection in respect to Dow policy and 7 some ambiguity within the question. 8 A. If the particular operation was one in which 9 there could be peaks that would not be normally found 10 in industrial hygiene and there was a particular 11 known - particularly acute problem, why, we would wear 12 respiratory protection or whatever, whether it was 13 protective clothing or what was used. 14 Q. So - 15 A. It was just a matter of common sense, I 16 think. 17 Q. Okay. So, protection would be used, then, 18 when exposures were above the guideline levels: is 19 that what you're saying? 20 MR. PIERCE: Asked and answered. 21 A. Either protection would be urged, suggested 22 if changes in procedure or operation could not be 23 effectively instituted. 24 Q. And was it the policy in your years with Dow 25 only to use the industrial hygiene controls in 423 1 circumstances where the exposure levels were above the 2 guidelines? 3 A. I don't know. 4 MR. PIERCE: Continue the 5 objection to the use of Dow's policy 6 and the ambiguity within that 7 question. 8 A. I guess I don't know. 9 Q. Well, you continue to emphasize the 10 quantitative aspects. And I think that relates back 11 to the guidelines, if I'm understanding you right. 12 And I'm trying to understand at what point when we're 13 talking about levels of exposure that Dow's rules or 14 regulations required that controls be put in place to 15 limit exposures. That's what I'm asking you about. 16 And was it only after you had exceeded the 17 guidelines that industrial hygiene controls were 18 required? 19 MR. PIERCE: I'm going to object 20 to the question based on the premise 21 that there weren't industrial hygiene 22 controls at all times. And it's just 23 an assumption of a fact that's part of 24 the question which is not so. 25 But go ahead and answer it to the 424 1 best of your ability, sir. 2 A. The policy, as I would - as I recollect it, 3 was that we did not have anybody exposed to 4 concentrations of materials that were presumed to be 5 hazardous to health. So, our control -- The last - 6 The last alternative to a situation which hopefully 7 would be temporary or short-term, was to engineer 8 controls and handling procedures into an operation so 9 that you didn't have that situation. 10 Now, in an emergency situation, short-term 11 where you just didn't have time to get this sort of 12 thing done, we used respiratory protection, whatever 13 protection was required. It was not the routine to 14 work - anybody - with respiratory or other 15 protection. The thrust was to maintain the 16 environmental and occupational exposures to acceptable 17 levels or below - as far below as could be reasonably 18 achieved. 19 Q. Okay. And in cases where the exposures 20 could exceed the guidelines, then you'd use 21 respiratory protection as appropriate or as set out on 22 your safety data sheets? 23 A. If this was appropriate. 24 Q. Okay. Dr. Rowe, was it Dow's policy during 25 your years with the company to deny protection to 425 1 workers from particular materials until Dow had 2 evaluated scientifically documented conclusive 3 findings for relevance to the specific premises or 4 situations at Dow? 5 MR. PIERCE: Objection to the form 6 of the question for the following 7 reasons: One, objection to use of the 8 term of "Dow policy"; objection to the 9 compound nature of the question; 10 objection to the ambiguity of terms 11 used, including "conclusive" and 12 others. 13 But go ahead and answer, if you 14 can. 15 A. I don't know the answer to that. 16 Q. As a long-time employee of Dow, an executive 17 with Dow -18 MR. BLANKS: Objection to the use 19 of the word "executive." 20 MR. PIERCE: Thank you. 21 (By Mr. Blanks) 22 Q. As a long-time Dow employee in the 23 biochemical research department and ultimately as the 24 assistant director and then director of different 25 parts of that organization, you have some familiarity 426 1 with Dow's policies regarding occupational health, do 2 you not? 3 A. Yes. 4 Q. Dowdidhave some policies about 5 occupational health matters, did it not? 6 A. Yes. 7 Q. Could you generally restate for us what the 8 scope of that policy was, as you appreciated it? 9 A. I thought I had just explained that. The 10 policy was that we did not - that we tried to control 11 exposures - exposure levels - to acceptable levels by 12 engineering control and not by personnel protection. 13 Personnel protection was an emergency situation or a 14 very short-life situation pending correction of this, 15 that, or the other thing that was causing the problem. 16 Q. Well, was it the approach of your department 17 at Dow to not make recommendations for improved 18 procedures or for monitoring, things of that sort, 19 until Dow had evaluated the scientifically documented 20 conclusive findings for relevance to the particular 21 situations in the Dow plants? 22 MR. PIERCE: Objection to the 23 form. It's compound. It's wordy and 24 ambiguous, difficult, and 25 unintelligible. 427 1 MR. RICE: That means you in 2 general terms (directed to 3 Mr. Blanks). 4 A. I guess I'd like to have you break it up 5 into pieces rather than so much at one time. 6 Q. All right, sir. Once you had scientifically 7 documented conclusive findings about a particular 8 toxic material like, say, asbestos, would you at that 9 point at Dow make recommendations for medical 10 monitoring or industrial hygiene controls? 11 MR. PIERCE: Objection to the 12 form; compound, ambiguous. 13 A. Oh, we would certainly recommend that 14 recommend that the occupational exposure did not 15 exceed the so-called acceptable levels. 16 Q. Did you ever look beyond the so-called 17 acceptable levels to see if they really were 18 acceptable relative to the experience in your own work 19 force? 20 MR. PIERCE: Objection to the 21 form; completely ambiguous. 22 A. I think our previous discussion of the 23 carbon tetrachloride situation is an example of this. 24 And, as I said, there were perhaps others. 25 I remember vinyl chloride as another example 428 1 that - where certain people were having a lot of 2 trouble with exposure to vinyl chloride and - but 3 their exposure levels were quite high and ours -- We 4 had lots of it, and we had had no such problem. And 5 we tried to check our analyses and so forth. And we 6 did some work with vinyl chloride to verify the 7 situation because of the severity of the reported 8 responses. 9 And it was never our policy to do as little 10 as possible to meet a particular standard or 11 acceptable-level standard, however you want to call 12 it. We did the best we could as well as we could. 13 Sometimes it was very difficult and seemingly 14 unnecessary to the extent -- You cannot eliminate 15 exposure. So, somewhere in there there has to be a 16 trade-off. 17 Q. Okay. What is one trading off, Dr. Rowe? 18 A. You have to trade off to some level that's 19 acceptable or better than acceptable and - otherwise, 20 you'll go out out of business. You don't do 21 anything. You can't make materials and handle 22 materials without some escape. So, you're going to 23 have some exposure. That has to be recognized. And, 24 so, if you want to go the ultimate, no exposure, why, 25 you'd probably just say, well, let somebody else do 429 1 it. 2 Q. For instance, subcontract out that sort of 3 maintenance work that might involve exposures? 4 MR. PIERCE: Objection to the form 5 of the question. 6 I'm sorry. Could you repeat that 7 question? 8 Q. And one way to have somebody else do it, for 9 example, would be perhaps to subcontract out 10 maintenance work that would involve excessive 11 exposures? 12 MR. PIERCE: Objection to the 13 form. I think that's a complete 14 misinterpretation of what his previous 15 answer was in his previous testimony. 16 A. No. 17 Q. Then I guess I didn't understand you, then. 18 And that would be a way of - 19 A. I'm saying if you're going to manufacture a 20 material and you can't control it and you have to 21 control it to such and such a level, your technology 22 may not be adequate to do that. So, you just don't 23 make it. If somebody else wants to make it, then 24 that's their business. 25 Q. Were there any products that Dow considered 430 1 which it decided not to make because of these 2 occupational health concerns? 3 A. Not to my knowledge. 4 Q. But there were some materials you made where 5 you knew that you were going to have some exposures in 6 spite of your control measures; is that true? 7 A. You always have some exposure. 8 Q. And the trade-off was one of either not 9 making it and not having exposures or going ahead and 10 making the product and having exposures in the work 11 force: is that what you meant by "trade-off"? 12 MR. PIERCE: Asked and answered. 13 A. Well, if you can't make a product 14 economically, you better not bother making it. If the 15 sales price is -- There's no point in making it if you 16 can't sell it. And if the expense and cost of - of 17 containment is excessive, it doesn't warrant research, 18 development, or whatever. 19 Q. It does cost some money to control and limit 20 exposures in the workplace, does it not? 21 A. It costs a lot of money. And that level is 22 very - curve is very, very steep - or with the amount 23 of control, costs lots of money. 24 Q. And I suppose in the handling of asbestos 25 insulation in a chemical plant or a refinery you'd 431 1 agree that it's also inevitable that you're going to 2 have some exposures to airborne dust in its handling; 3 isn't that true? 4 MR. RICE: Objection; vague. 5 MR. PIERCE: Objection to the 6 form. 7 A. Well, I don't know of anything that we can 8 handle that we don't have some potential for exposure. 9 Q. And that would be true both in the 10 fabricating of it, the installing of it, the removal 11 of it. The potential for exposure exists. True? 12 MR. PIERCE: Objection to the 13 compound nature of the question. And 14 this has been asked and answered 15 several times. 16 A. I don't -- To my knowledge, I don't know how 17 it would be done if it didn't have some. 18 Q. In fact, it's more than just a potential for 19 exposure, isn't it, Dr. Rowe? I mean, it's inevitable 20 that the man actually sawing and handling the asbestos 21 insulation is going to have some exposure to the 22 airborne asbestos dust in the doing of the work, isn't 23 it, sir? 24 MR. PIERCE: Are you asking him to 25 speculate or from his own personal 432 1 knowledge and studies? 2 MR. BLANKS: Well, I'm asking 3 Dr. Rowe as the former director of the 4 toxicology and industrial hygiene 5 section of the chemical biological 6 research lab at Dow Chemical Company. 7 MR. PIERCE: Who has testified he 8 had nothing to do with asbestos. 9 But okay. Answer the question. 10 A. To answer your question: If you were doing 11 this and you were doing it in a glove box, you would 12 be pretty close or you could do it probably pretty 13 close to zero exposure. But once you got it out of 14 there, you'd probably have some exposure. But it's 15 just a matter of proportions one way or another. 16 Q. All right, sir. But, actually, in reality 17 in the field, in the plant - in the handling of 18 asbestos insulation in Dow plants - some exposures to 19 the people working with it were inevitable and did, in 20 fact, occur, didn't they? 21 MR. PIERCE: Objection to the 22 form; asked and answered on numerous 23 occasions, redundant, argumentative. 24 A. You'd have to say there's some - you'd 25 expect to have some exposure. 433 1 Q. All right, sir. Dr. Rowe, on those several 2 occasions when your toxicology department decided that 3 the guidelines for specific materials were inadequate 4 to protect the workers, were those decisions made at 5 Dow only after you'd had scientifically documented 6 conclusive evidence to go on or did you respond to 7 something else, something short of that? 8 MR. PIERCE: Objection to the 9 form; compound in several ways and use 10 of ambiguous terminology. 11 Go ahead. 12 A. Well, the one example of the carbon 13 tetrachloride situation was one example. Almost the 14 opposite example was the one with vinyl chloride where 15 we had had no problems similar to those which had been 16 reported in the literature. 17 Q. But was your response to these perceived 18 problems delayed until you had conclusive findings? 19 MR. PIERCE: Continue the 20 objection as to the ambiguity. 21 A. I don't -- I don't understand the question 22 now, I guess. 23 Q. I mean, sir, did you decide that you needed 24 further study of the tetra - carbon tetrachloride 25 problem until you'd make a decision to tighten up the 434 1 Dow standards? 2 A. As I said before, we had evidence that the 3 controls to the acceptable level were not adequate. 4 Q. And, therefore, a response was required and 5 was, in fact, made, wasn't it? 6 A. Yes. 7 Q. To tighten up the standards? 8 A. Yes. 9 MR. PIERCE: Has been asked and 10 answered at least on four different 11 occasions this morning and last time, 12 as well. 13 MR. BLANKS: Do you want to stand 14 up a second, sir? 15 THE WITNESS: I'm okay. For the 16 time being, anyway. 17 MR. BLANKS: Okay. All right. 18 (By Mr. Blanks) 19 Q. Dr. Rowe, with respect to asbestos, what, 20 sir, would you regard as scientifically documented 21 conclusive findings that airborne asbestos could cause 22 disease? What would that be? 23 MR. PIERCE: I'd like to object to 24 the ambiguity of the term "conclusive" 25 and "scientifically documented. 435 1 But go ahead and answer the 2 question to the best of your ability. 3 A. Well, the occurrence among workers exposed 4 to the material in certain concentrations developed 5 asbestos-type disease. 6 Q. What about suspected carcinogens, how much 7 proof did Dow require about that before it would 8 decide to protect workers in its plants? Can you give 9 us some examples? 10 MR. PIERCE: Objection to the 11 form. It is compound. It is 12 ambiguous. It is vague. 13 A. I guess I'll have to ask you to repeat the 14 question, please. 15 Q. Yes, sir. Thank you. With respect to 16 suspected carcinogens, would it be so that - that - 17 In the Dow plants over the years you worked there, 18 there were some suspected carcinogens being used in 19 the plants, weren't there? 20 A. Yes. 21 Q. Okay. Even some that would be regarded as 22 probable carcinogens. True? 23 A. I'd expect so. 24 Q. Do you think there were any known human 25 carcinogens being used in Dow plants during any of the 436 1 years you worked there? 2 A. Yes. 3 Q. Okay. Now, as to thosesuspected or 4 possible or probable carcinogens, I'm wondering, sir, 5 how much proof Dow required before it would decide to 6 protect workers against exposures to them. 7 MR. PIERCE: I'd like to object to 8 the form of the question. It is 9 compound. It is vague. Using the term 10 "suspected carcinogen" or even "proven 11 carcinogen" is overly broad and 12 general. Are you including sunlight? 13 I mean, what are you including in this 14 group? 15 But go ahead and do the best you 16 can. 17 A. I think when you have a suspected 18 carcinogen, you probably do - or a known carcinogen 19 you do the best you can to keep the exposures at the 20 lowest possible level. 21 Q. I have no quarrel with your answer; but I 22 think you've told me what would be proper, at least at 23 Dow, in dealing with a suspected carcinogen. But my 24 question, sir, was how much proof or scientific 25 evidence did Dow require before it would start to 437 1 protect workers in its plants from suspected 2 carcinogens as opposed to what would be the response. 3 MR. PIERCE: Objection to the form 4 of the question. It is ambiguous. It 5 presumes Dow didn't protect its workers 6 at a certain period of time. And it's 7 compound. 8 A. I don't know how to answer your question. 9 Q. Well, let's try it this way, then. Would 10 you say that during all your years at Dow that the 11 company did, in fact, protect workers from exposures 12 to suspected carcinogens? 13 A. Certainly. 14 Q. Sir? 15 A. Certainly. 16 Q. And at what point, then, in the gathering of 17 knowledge about a new suspected carcinogen would the 18 Dow protection program for the workers kick in? How 19 much proof did it take to get protection implemented? 20 A. I don't know. 21 MR. BLANKS: We're out of tape. 22 MR. PIERCE: Okay. So, I guess 23 this is a good time for a lunch break. 24 And we'll take care of that other 25 matter over lunch. Okay? 438 1 MR. BLANKS: Yes. 2 MR. PIERCE: What time to you want 3 to... 4 MR. BLANKS: I'll leave it up to 5 Dr. Rowe. 6 MR. PIERCE: All right. How's 7 1:00 o'clock? Is 1:00 o'clock okay? 8 (AT 11:32 A.M. THE DEPOSITION WAS 9 RECESSED FOR LUNCH. AT 1:07 P.M. 10 PROCEEDINGS RESUMED AS FOLLOWS:) 11 MR. BLANKS: So, we're back. Did 12 you finish your sandwich? 13 THE WITNESS: No. 14 MR. HOBSON: Should have brought 15 it to him. 16 MR. BLANKS: He didn't finish his, 17 either. 18 MR. PIERCE: Too big for any one 19 person, huh? 20 MR. BLANKS: Yeah. 21 (By Mr. Blanks) 22 Q. Dr. Rowe, do you remember from around the 23 Forties a gentleman named L. J. Richards at Dow? 24 A. Yes. That name is familiar, but I can't 25 right off the bat place him. 439 1 Q. Can you place him maybe in the engineering 2 department as perhaps - 3 A. Okay. 4 Q. -- the chief - chief engineer? 5 A. That -- Okay. That's right. He was in the 6 engineering department. 7 Q. Was this a man that you would have had any 8 dealings with doing your job over the years? 9 A. I don't recollect any. 10 Q. And at Dow, engineering was responsible for 11 what, plant design and specification of materials to 12 be used in the plants? 13 A. I don't know. 14 MR. PIERCE: Objection to the form 15 of the question; compound and leading. 16 A. I don't know the extent of their charge. 17 Q. Could you tell us any of the things you 18 understood that engineering did in the Forties? 19 A. Well, they supervised buildings and 20 building of roads and buildings and equipment, I 21 guess. I don't know. I didn't have anything to do 22 with them. 23 Q. Okay. I'm not saying that you needed to 24 know but I -- Did they also specify materials to use 25 in the plants? 440 1 A. I don't know. 2 Q. And I don't mean product materials or raw 3 materials but things such as insulation, for example. 4 A. I have no idea. 5 Q. Do you have any idea whether Mr. Richards is 6 still living? 7 A. No. 8 Q. When - 9 A. I don't know. I don't know. 10 Q. When was the last time that you could 11 recollect having known of him? Would that have been 12 around your retirement time? 13 A. Your question was -- Excuse me. 14 Q. Could you just tell us the last time you can 15 recollect knowing of Mr. Richards? 16 A. No. 17 Q. We were talking before the lunch break about 18 how Dow dealt with carcinogens or suspected 19 carcinogens in the workplace. And you -- I think you 20 gave us some understanding of what Dow would do about 21 them, but I was exploring with you what level of 22 information was needed before Dow would respond to a 23 suspected or probable carcinogen that they learned of 24 being in the plants. Could you help us with that, 25 sir? 441 1 MR. PIERCE: And the question was 2 asked and answered several times; and, 3 so, I object on that basis. 4 A. Well, I don't -- I don't know. 5 Carcinogenicity is just is another manifestation of 6 toxicity. And you deal with it as the end result of 7 that just as though you - just the same as you would 8 with something that caused liver destruction or some 9 other undesirable effect. 10 Q. Is that to say that at Dow during your years 11 that carcinogens were not treated with more care or 12 respect than toxic materials that didn't cause cancer? 13 MR. PIERCE: Objection to the form 14 of the question; compound and 15 ambiguous. 16 A. I don't know that we can say that - what 17 compounds do cause cancer. Again, it's a matter of 18 quantitation. And if -- If the level that causes 19 cancer is low, okay, you'd apply the monitor and 20 control conditions to meet those limits. 21 Q. Well, I was wondering if you treated 22 potential or probable carcinogens differently than, 23 let's say, something that was only a fibrogen. 24 MR. PIERCE: Objection to the 25 form, objection to your 442 1 characterization of something as 2 only. 3 But go ahead. 4 And the ambiguity in the 5 question. 6 A. Well, we would certainly treat them 7 different than something that might cause an aesthetic 8 effect; but we looked at carcinogens and tried to 9 control those just like we would any other 10 toxicological effect. It's an undesirable effect to 11 be avoided, if at all possible. 12 Q. All right, sir. And if it couldn't be 13 avoided - it wasn't possible to avoid it, this 14 effect - what was the Dow response to those 15 situations? 16 A. If it's impossible to avoid it, you cease to 17 use it. 18 Q. Did Dow have some sort of a scheme or method 19 for categorizing potential carcinogens? 20 A. Not that I recollect. 21 Q. Did you, yourself, have any method for 22 describing or ranking the likelihood that a material 23 could cause cancer in humans? 24 A. I don't think so. 25 Q. So, it was the case, then, at Dow that the 443 1 toxicology department didn't distinguish between 2 materials that were merely suspected of being 3 carcinogens and those that were regarded as probable 4 carcinogens? 5 MR. PIERCE: Objection to the 6 form. The witness has already answered 7 from his knowledge, and it's just a 8 completely repetitive question. 9 But go ahead. 10 A. Well, the - whether it - whatever the 11 adverse effects of a material are, you do the best you 12 can under the circumstances to either reduce it to 13 acceptable levels or don't use it. Whether it's a 14 carcinogen -- It's just another manifestation of 15 toxicity. 16 Q. Okay. So, learning that asbestos, for 17 example, was believed to be capable of causing lung 18 cancer would not lead to any change in the industrial 19 hygiene program that was already designed to prevent 20 exposures to asbestos that could cause asbestosis: 21 would that be true? 22 MR. PIERCE: Objection to the 23 form. It's leading and ambiguous. 24 A. If you had a material that was a potential 25 to cause any sort of effect and you're close to the 444 1 margin, you do your best to monitor it more often 2 and - so as to reduce the possibility or the 3 likelihood of excessive exposure. 4 Q. When you say -- Did you say "close to the 5 margin"? 6 A. Well, if your - if your - if your margin 7 is five and you're running four point nine, that's 8 that's different than if you're running one against a 9 margin of five, as an example. 10 Q. All right, sir. Well, what would be 11 appropriate to do if, in fact, you were running at a 12 margin of four point nine against a five guideline? 13 What... 14 A. Take whatever measures you could to attempt 15 to reduce exposure. 16 Q. Is four point nine too close for comfort, in 17 your mind, when you have a standard of five or a 18 guideline of five? 19 MR. ALMQUIST: Object to the 20 question as vague. 21 A. Any exposure is too much, as far as I'm 22 concerned; but practicality says that you can't have 23 zero exposure if you're going to handle a material. 24 Q. You've told us earlier, I think, that the 25 threshold limit values and their predecessor, the 445 1 maximum allowable concentrations, were merely 2 guidelines for exposure levels. True? 3 A. That's true. 4 Q. And that as drawn out by the A.C.G.I.H., 5 these guidelines were expected to provide a level of 6 exposure at which most but not every worker would be 7 free from a harmful effect or a bad health effect, 8 correct? 9 A. That was the general philosophy. 10 Q. But that would also entail, wouldn't it, 11 that some workers - if you expose enough of them over 12 a long enough period of time, that some workers would, 13 in fact, develop the disease from exposures. True? 14 A. I certainly couldn't say that they would 15 because I don't know. 16 Q. Well, speak - not speaking about any 17 particular workers but - but as to a group of workers, 18 if you exposed enough of them for a long enough period 19 of time at exposure levels, let's say, close to the 20 guideline, would you not expect that some would 21 develop disease from exposures, Dr. Rowe? 22 MR. PIERCE: I'm going to object 23 to the form of the question. It really 24 calls for complete speculation. I 25 mean, if you go on forever, someone is 446 1 liable to get something. And the 2 question just has no parameters, no 3 beginning and no end. 4 But see if you can handle it. 5 A. Well, statistical analyses of those kind of 6 things is very difficult. And that's the reason why 7 you say that there's no absolute guarantee. But lung 8 cancer and other diseases occur from - occur 9 naturally. And they may occur from different 10 materials that are rather unknown. So, it's hard 11 to -- You can't make - cast something like that in 12 bronze. 13 Q. How about if we speak in terms of asbestosis 14 instead of asbestos-related cancer, would you agree 15 that exposures of enough people over a long enough 16 period of time near but below the guideline level will 17 predictably result in asbestos - in asbestosis in some 18 of those people? 19 MR. PIERCE: Object to the form. 20 It's ambiguous and vague. 21 A. You can't say that anything is impossible. 22 And it's possible. 23 Q. Well, isn't it actually statistically 24 probable, Dr. Rowe? I mean, wasn't that - 25 A. I would -- I would think that it would be - 447 1 statistics would be influenced by the dosage and the 2 period of exposure time and such factors. 3 Q. And wouldn't you expect, based on your 4 experience and your knowledge, that exposures at 5 levels of, say, 4.7 million particles per cubic foot 6 or 4.9 over a long enough period of time would, in 7 fact, lead to asbestosis in some individuals? 8 MR. PIERCE: Objection to the form 9 of the question. It's compound; it's 10 argumentative; it's repetitive; and 11 it's, in certain proportion, 12 unanswerable. 13 MR. PAPPAS: And speculative. 14 THE REPORTER: Excuse me. 15 MR. PAPPAS: And speculative. 16 MR. RICE: I also object to it on 17 the basis it's not referenced by time. 18 A. I don't know. 19 Q. When you were applying the guidelines at 20 Dow, was it your understanding that some people 21 exposed below the guideline would, in all probability, 22 develop the occupational disease that the T.L.V. was 23 designed to protect against even though the majority 24 of the workers might be protected at the guideline 25 level? 448 1 MR. PIERCE: I'd like to 2 object to the question as 3 unintelligible as asked. 4 A. I don't like to speculate on - on things 5 like that because anything is possible. 6 Q. Well, I really didn't mean to put you in a 7 posture of speculating; but I'm really asking more 8 about your understanding and your application of the 9 T.L.V. guidelines and other guidelines back in the 10 Forties and the Fifties and Sixties when you were 11 doing toxicology work for Dow and then later as the 12 man in charge of the industrial hygiene section. 13 You understood that the guidelines were 14 intended to protect most of the workers if their 15 exposures were limited - kept below those levels. You 16 agree with that, don't you, sir? 17 MR. PIERCE: I'm going to -- I'm 18 going to object to this question. I 19 think Dr. Rowe has explained already 20 what he meant by that, and this is just 21 going over the same area once again. 22 But go ahead. 23 A. That, I think, was the general philosophy. 24 Q. And at the same time you did not expect that 25 keeping exposures at or just below the guideline level 449 1 would, in fact, protect every worker exposed at those 2 levels. True? 3 MR. PIERCE: And I'm going to 4 object to this. Asked and answered 5 more than once. 6 A. The probability of anything happening is 7 always increased with the dosage. 8 Q. So that the higher the dosage was to the 9 guideline, the greater the probability that some 10 person or persons would get the occupational disease. 11 True? 12 MR. PIERCE: Objection to the 13 form. It's vague. 14 And what do you mean 15 "exposure to the guideline"? 16 But go ahead, if you can. 17 Q. As exposures approach the guideline levels, 18 the probability of the occupational disease in some of 19 the workers would increase, wouldn't it? 20 MR. RICE: Object to the 21 speculation. 22 MR. PIERCE: Object to the form. 23 You're asking for speculation. And 24 Dr. Rowe has already given you an 25 answer as to his entire thinking in 450 1 respect to exposure levels. 2 But go ahead. 3 A. I don't think that anyone can say that if 4 you increase exposure levels that you are - you have 5 to -- Excuse me. Let me back up. As you increase the 6 intensity of exposure, you're going to increase the 7 probability however small or however it may be before. 8 Q. And would the opposite also be true, 9 Dr. Rowe, that as you decrease the intensity of 10 exposure you would decrease the probability of 11 occupational disease? 12 A. I would think that would naturally follow. 13 Q. And that was, in fact, your experience as a 14 scientist at Dow, wasn't it, that the lower you kept 15 the exposures the less probability you had of 16 occupational disease? The less occupational disease 17 you had, as well. True? 18 MR. PAPPAS: Object - 19 MR. PIERCE: Object to the 20 compound nature of the question. 21 A. I would agree. 22 Q. Which is precisely the reason that you - or 23 that the Dow people, for instance, lowered their 24 standards on the vinyl chlorides and the aliphatic 25 chlorinated hydrocarbons and carbon tetrachloride, 451 1 among other things, right? 2 A. Right. 3 Q. Dr. Rowe, do you recall that Dow passed on 4 to the A.C.G.I.H. its experience with these different 5 materials we just mentioned, the ones where Dow 6 actually lowered the guideline below the T.L.V. that 7 the A.C.G.I.H. had proposed? 8 A. Yes, sir. 9 Q. Do you recall, sir, what the response of the 10 American Conference of Governmental Industrial 11 Hygienists was to this important information from Dow? 12 A. Well, the A.C.G.I.H., I think, respected 13 very highly the results that were given them and moved 14 their threshold limit values accordingly. 15 Q. They did, in fact, lower their - 16 A. Oh, yes. 17 Q. -- T.L.V. down to the ones that Dow had set 18 internally? 19 A. Well, I'm not going to say specifically 20 because I don't remember; but I know they were reduced 21 in most of those situations. 22 Q. I see. Is it your view, Dr. Rowe, that the 23 state of knowledge about, let's say, the 24 carcinogenicity of a material like asbestos is one 25 that increased with time and with more studies, say, 452 1 from 1935 up to 1965? 2 A. I think that's true of every person - every 3 material I know. 4 Q. Well, I didn't ask you about every material 5 because somebody would have objected it wasn't 6 specific. 7 A. As more knowledge becomes available, it's 8 put into use. 9 Q. All right, sir. Would you say that with 10 more knowledge you - as a scientist, you have an 11 increasing level of confidence or certainty about the 12 suspected carcinogenicity of the particular material? 13 Is that the way it works? 14 A. Well, the more knowledge you have, certainly 15 the better perspective you have for drawing 16 conclusions. 17 Q. Could you give us some feel for that point 18 on the spectrum of increasing knowledge or increasing 19 certainty where at Dow it was felt proper to begin to 20 take steps to protect the workers from exposures to 21 the material? 22 MR. PIERCE: Objection to the form 23 of the question. It's compound, and 24 it's very vague and very difficult to 25 understand. 453 1 A. I guess I would ask you if you would repeat, 2 please. 3 Q. Yes, sir. I was just wondering if you could 4 describe to us at what point on that spectrum of 5 increasing knowledge and certainty about the 6 carcinogenicity of asbestos that Dow thought it proper 7 to take steps to protect the workers from exposures to 8 asbestos. 9 MR. PIERCE: I'm going to continue 10 the objection based on the assumption 11 that there was a point in time where 12 they did not protect the workers at Dow 13 and other ambiguities within the 14 question. 15 But go ahead. 16 MR. ALMQUIST: I'm going to object 17 to the question. 18 A. I don't know. 19 Q. Would you know, sir, or could you explain to 20 us relative to this level of increasing knowledge and 21 certainty about carcinogenicity if - where Dow would 22 respond on carcinogens generally? Not asbestos, but 23 anything. 24 MR. PIERCE: I'd like to ask you 25 to clarify that question as to -- What 454 1 does that mean, "respond to"? So, I'm 2 going to object to the form of the 3 question as being vague. 4 A. I guess I don't understand it, either. 5 Q. Okay. Well, I'm trying to get a feel for 6 what point you felt like you knew enough to justify 7 telling the people working with this material that was 8 suspected of being a cancer-causing material that you 9 did have those suspicions. 10 A. I don't know. That would be just simply a 11 matter of judgment. 12 Q. Well, what factors went into exercising that 13 judgment during your years at Dow? 14 A. Experience, I guess. 15 Q. Experience with cases of cancer in the work 16 force? 17 A. No. But maybe in some work forces in the 18 literature, whatever was available. You have to 19 evaluate the situation in light of the current state 20 of the art, so to speak. 21 Q. So, at any given time you'd be looking to 22 and relying on the current state of the art; that is, 23 what's been published in the pertinent medical and 24 scientific literature on the subject, correct? 25 A. Yes. 455 1 Q. Well, would you wait, Dr. Rowe, until there 2 was a unanimous agreement among physicians and 3 toxicologists that a material caused cancer before you 4 would begin to tell your workers that there was 5 concern about it? 6 MR. PIERCE: Objection to form of 7 the question; requires complete 8 speculation, no specifics within. 9 A. I don't believe we would do that for - we'd 10 do that for anything that we felt that the situation 11 was hazardous. 12 Q. That you'd tell the workers? 13 A. That was their policy. 14 Q. Would you do this as soon as you had some 15 information from your own experience or the literature 16 that the material in issue could be a harmful 17 material, one that could cause health effects? 18 MR. PIERCE: Objection to the 19 form; compound. 20 A. Well, we tried to keep our people informed 21 of the present state of knowledge. 22 Q. Did Dow have any special rules for the 23 workers who were handling cancer-causing materials? 24 A. I don't believe so. 25 Q. Did those workers get any kind of special 456 1 training, those men that were handling cancer-causing 2 materials? 3 A. They may have. 4 Q. Can you recall any instances where that 5 would have been the case? 6 A. Not offhand. 7 Q. Do you recall, Dr. Rowe, that workers 8 handling cancer-causing materials were given any kind 9 of special protection or industrial hygiene controls? 10 MR. PIERCE: I'm going to object 11 again in terms of the vagueness of the 12 question. Once again not dealing with 13 any exposure levels or - and implying 14 within that they did reach a level at 15 which there was some danger. 16 But go ahead and answer it to the 17 best of your ability. 18 A. We gave all the handling precautions that we 19 knew how to give with respect to any material being 20 handled that we thought might pose a significant 21 toxicological problem under the circumstances. 22 Certainly if a material was going to be absorbed 23 through the skin, why, we would caution people about 24 getting it on the skin and getting it off quickly and 25 all the rest of these things. It's just normal 457 1 industrial hygiene - and medical, I guess, too 2 treatment or instructions that - commonly in use. 3 Q. Do you recall sir, what Dow did in the 4 1930's, for example, to safeguard workers handling 5 asbestos as a carcinogen? 6 A. I don't know. 7 MR. ALMQUIST: I'm going to object 8 to that question, as well, because, 9 Mr. Blanks, we've been over that, I 10 think, on many, many occasions through 11 the day and on the dates preceding 12 this. 13 Q. In the 1940's do you recall that Dow caused 14 the people working with or around asbestos to do 15 anything special to handle it as a carcinogen? 16 A. I don't know. 17 Q. How about in the Fifties, sir? 18 A. I don't know. 19 Q. Would you have any knowledge of what Dow was 20 doing in the Sixties to handle asbestos as a 21 carcinogen and protect the workers? 22 A. I don't know. 23 Q. What about the warnings about its 24 carcinogenecity in those periods, do you have any 25 knowledge of that? 458 1 A. No. 2 Q. Was it the policy at Dow to wait until there 3 had been a statistically significant number of workers 4 perish from toxic exposure to a material before the 5 men at Dow would be protected from that material? 6 MR. PIERCE: Objection to the form 7 of the question. It's argumentative, 8 it's speechmaking, and it's completely 9 inappropriate. 10 A. No. 11 MR. PIERCE: And has been 12 asked. 13 Q. So, the Dow response would come earlier than 14 the point at which you had a statistically significant 15 number of deaths reported. True? 16 MR. PIERCE: I'm sorry. Could we 17 have that question read back? 18 THE REPORTER: "QUESTION: So, the 19 Dow - the Dow response would come 20 earlier than the point at which you had 21 a statistically significant number of 22 deaths reported. --" 23 MR. PIERCE: I'd like just to - 24 THE REPORTER: Wait. 25 MR. PIERCE: I'm sorry. 459 1 THE REPORTER: Go ahead. 2 MR. PIERCE: I'd like to continue 3 the objection to that question in that 4 it's been asked and answered and is 5 vague in portions. 6 Q. Did you have an answer, Dr. Rowe? 7 A. No. 8 Q. Is "no" the answer? 9 A. What? Yes. 10 Q. Okay. 11 A. "No" is my answer. 12 Q. Thank you. Okay. I thought I'd heard that, 13 but I lost the trail there during the lawyer's 14 comments - objection. 15 MR. PIERCE: Wait. Wait one 16 second, please. The delay in the 17 answer, for the record, had nothing to 18 do with this lawyer's comments but your 19 conversation with Mr. Hobson. And 20 just let's make that clear on the 21 record. 22 MR. BLANKS: Are you speculating 23 about my state ofmind andmy reason 24 for forgetting, Mr. Pierce? 25 MR. PIERCE: I like that. 460 1 MR. PAPPAS: There's a lot of 2 speculation about that, Joe. 3 (By Mr. Blanks) 4 Q. As a practicing toxicologist and then later 5 as the chief of industrial hygiene, Dr. Rowe, did you 6 feel like individual case reports of cancer deaths 7 deserved attention? 8 MR. PIERCE: I'd like to object. 9 This has been asked and answered. I 10 think it's -- Exactly that question was 11 asked and answered this morning and 12 maybe last time. 13 Go ahead. 14 A. Would you restate it, please. 15 Q. Yes, sir. I was wondering whether you would 16 regard case reports - individual case reports - as 17 being information that would - that you would rely on 18 in deciding whether or not to protect workers from 19 exposures to the material that was suspected of 20 causing the death. 21 MR. PIERCE: Continue the 22 objection. 23 MR. PAPPAS: I'm going to object. 24 This question has been asked and 25 answered. Mr. Blanks, I was here this 461 1 morning; and I remember this same 2 gentleman saying that it was 3 dose-related and it had to do with 4 exposure and concentrations of 5 exposure. And on that basis I would 6 object. 7 A. Well, certainly case reports are important. 8 It's also important to know the basis for those 9 reports and to learn what the circumstances were 10 that - that may be extraneous to that particular... 11 To state that just a little differently: One needs to 12 know what else was along with a case report because 13 case reports are very brief usually and they do not 14 have data behind them except they report a particular 15 occurrence. And the background for that occurrence 16 needs to be evaluated before they're given 17 credibility. 18 Q. All right, sir. Did you find that case 19 reports would pique your interest when you would read 20 them? 21 A. I guess so. 22 Q. Now, how about articles in peer review 23 journals that reported multiple cases, would those 24 arouse a somewhat higher level of interest when you 25 read them? 462 1 A. Yes. 2 Q. Did you think during your work at Dow that 3 an international symposia of recognized experts 4 deserved even further attention? 5 MR. PIERCE: I'd like to object to 6 the ambiguity. 7 But go ahead. 8 A. Depends on those so-called experts. 9 Q. You mean who they were? 10 A. And their reputation. 11 Q. Was it your view while you were at Dow that 12 national presentations by Government scientists 13 discussing, say, environmental cancers deserved your 14 attention as a toxicologist? 15 A. Yes. 16 Q. How about reports from individual doctors or 17 toxicologists whom you knew to be competent and 18 regarded well, would that deserve your attention in 19 your work at Dow? 20 A. Any reports deserve attention. 21 Q. Just how much attention depending on who was 22 the author? Was that the way it was? 23 A. And the data behind them. 24 Q. Okay. Would you regard reports from trade 25 association, medical, and industrial hygiene 463 1 committees made up of your peers or contemporaries 2 worthy of attention when they were reporting on 3 occupational health problems? 4 A. Yes. 5 MR. PIERCE: Objection to the 6 form; compound. 7 Q. Can you give us any understanding of the 8 reports or series of reports from which Dow finally 9 did learn that asbestos was a carcinogen, Dr. Rowe? 10 MR. PIERCE: Objection to the form 11 There's an assumption within there. 12 It's facts not in evidence. 13 But go ahead. 14 A. No. 15 Q. Do you think that Dow never did learn that 16 asbestos was a human carcinogen, Dr. Rowe? 17 A. Would you please repeat that. 18 Q. Well, yes, sir. Mr. Pierce, one of Dow's 19 lawyers, objected that there was an assumption -20 MR. PIERCE: No. Excuse me, 21 Mr. Blanks. I am V. K. Rowe's 22 attorney. 23 MR. BLANKS: Oh, I'm sorry. I 24 thought you had enrolled in this case 25 as co-counsel for Dow Chemical Company. 464 1 MR. ALMQUIST: He's here as 2 counsel for V. K. Rowe. 3 MR. BLANKS: Whatever you say. 4 MR. RICE: Kind of like you and 5 Herschel. 6 MR. HOBSON: We don't represent 7 Mr. Rowe. 8 (By Mr. Blanks) 9 Q. There was an objection to some assumed fact, 10 and I suppose it was that Dow finally did learn that 11 asbestos was a carcinogen. 12 Do you think that Dow did finally become 13 aware of that before you left the company? 14 A. Well, I don't know that I can speak for the 15 company. 16 Q. Well, how about your group within the 17 company? 18 A. Well, personally my opinion is that - that 19 asbestos in sufficient dosage is a carcinogen. 20 Q. Can you give us any notion for what reports 21 it was or articles or experiences that led you to that 22 conviction, sir? 23 A. I don't recollect. 24 Q. Could you help us to understand, Dr. Rowe, 25 what would be the best information available about the 465 1 known and suspected health hazards of asbestos dust, 2 say, in the late Thirties? 3 A. No. 4 Q. Could you just describe it - 5 A. I don't know. 6 Q. -- generally for us? 7 A. I don't know. 8 Q. What would they be during the Forties? Now, 9 I'm not asking you to cite specific articles but just 10 the sources for the best information available. 11 MR. PIERCE: With the 12 understanding that Dr. Rowe has already 13 testified that asbestos is not his 14 field of interest or expertise? 15 MR. BLANKS: Well, yeah. 16 (By Mr. Blanks) 17 Q. I'm really not attempting to quiz you on 18 every article that was ever published. That wouldn't 19 be fair under the circumstances. But my question was: 20 Generally speaking, what would you say would be the 21 best information available - the best sources for it 22 about the known and suspected health hazards of 23 asbestos during those different decades when you 24 worked for Dow? 25 A. Well, I never followed the literature on 466 1 asbestos; and I really can't tell you. 2 Q. All right, sir. 3 A. I have heard, - 4 Q. Excuse me. 5 A. -- but I don't know. 6 Q. What have you heard? 7 A. Well, you see reports with certain names on 8 them; and, so, "Okay. Well, that's that." 9 Q. As to the materials you did follow, what 10 were the sources for the best information available on 11 those materials, generally speaking? 12 A. Well, this depends on the type of material 13 because some laboratories seemed to concentrate on 14 certain categories of chemicals, substances that they 15 were concerned with and whereas others had little 16 information or a little experience with others. So, 17 you had to select and choose the information on the 18 basis of the particular group that was doing the 19 work. 20 Q. So, for example, Dr. Smyth at the Mellon 21 Institute might have had a specialized area of 22 interest. And if you were dealing with that kind of 23 material, you might consider him to be a good source 24 of information, I suppose. 25 A. Yes. 467 1 Q. Or on the other hand, for dust inhalation 2 topics and lung fibrosis, Saranac Laboratories in New 3 York would have been a highly regarded source of 4 information in the Thirties and Forties and Fifties? 5 A. I think so. 6 Q. Well, during all the years that you worked 7 at Dow, would sources for the best information 8 available about known and suspected health hazards of 9 a material like asbestos include the industrial 10 hygiene and medical literature in the journals? 11 A. I'm not sure I understood your question. 12 Whether there was a double negative in that or not, I 13 don't know. 14 Q. Okay. Let me try again. 15 A. Okay. 16 Q. We're speaking again generally about the 17 sources for the best information available about known 18 and suspected health hazards of a material like 19 asbestos. 20 Would you say for that period of the 21 Thirties, Forties, Fifties, even on into the Sixties, 22 that those sources would include the industrial 23 hygiene and medical literature published in the 24 journals? 25 A. Yes. 468 1 Q. Would it include things like the proceedings 2 of the National Safety Council dealing with - with 3 such materials? 4 MR. PIERCE: I'm going to object 5 because I don't think it's clear that 6 the National Safety Council had 7 literature going back into the 8 Thirties. It's not anything I was 9 aware of, so -- It may be; but I think 10 without going through the time periods 11 there may be a problem in answering 12 that question. And I'm just trying to 13 avoid that problem. 14 A. It really doesn't matter too much what 15 organization you speak to. It depends on the people 16 who are doing the speaking. And the National Safety 17 Council was very strong in terms of mechanical 18 safety. And I don't think -- I did not ever consider 19 them to be strong in the area of organic toxicology. 20 Q. All right, sir. How about in the area of 21 mineral dust hazards such as silicosis or asbestosis 22 and such as that? 23 A. I don't know. 24 MR. PIERCE: I'm going to object 25 to the form of the question, if there 469 1 is a proper question before us. 2 A. I don't know. 3 Q. Okay. You would regard people like Philip 4 Drinker and Ted Hatch and Leroy Gardner as persons 5 with knowledge to impart even back in the Thirties and 6 Forties about asbestosis and silicosis, wouldn't you, 7 sir? 8 MR. PIERCE: All three or any one 9 of them? 10 I object to the form of the 11 question as compound. 12 A. I think I would respect all - the opinions 13 of all of those particular individuals. 14 Q. Okay. And if they'd been speaking and 15 presenting papers at the National Safety Council 16 Congresses even back in the Thirties, that would at 17 least be a source of good information about known and 18 suspected health hazards. Would you agree? 19 A. It would certainly be information that one 20 would have to - to respect unless there were some 21 mitigating circumstances that would tend to depreciate 22 it. 23 Q. Would you also agree that during this time 24 period of the late Thirties and the Forties, Fifties 25 that the industrial hygiene foundation would have been 470 1 a source for some of the best information available 2 about the known and suspected health hazards of 3 asbestos dust and fiber? 4 A. Yes. 5 Q. Including through their publication the 6 industrial hygiene foundation digest. True? 7 A. Yes. 8 Q. Would youinclude the United States Public 9 Health Service and its publications on occupational 10 diseases to be one of the sources for some of the best 11 information available during those decades, as well? 12 A. The U.S. Public Health Service did good 13 work, generally. They had a few bad ones, but I can't 14 tell you what they were. 15 Q. Okay. Would you regard textbooks by 16 physicians and toxicologists and industrial hygienists 17 to also be a source for the best information available 18 about the known and suspected health hazards of 19 asbestos during your decades of work with Dow? 20 MR. PIERCE: Objection to the 21 form; overly broad and general. 22 A. Yes. I'd consider them sources of 23 information. 24 Q. Would you consider the American Public 25 Health Association proceedings to be yet another good 471 1 source for some of the best information available on 2 these health hazards we're discussing? 3 A. I think U. S. Public Health Service was 4 generally quite reputable. 5 Q. I'm sorry. I meant to ask you about the 6 American Public Health Association and their 7 proceedings. 8 A. I'm not too many familiar with the 9 proceedings. 10 Q. Okay. Or their publications? 11 A. There was a journal of the U.S. Public 12 Health Service. I don't remember the exact title. 13 Q. Okay. How about your insurance companies 14 that had industrial hygiene departments and medical 15 departments, such as Metropolitan or Travelers or 16 Liberty Mutual or Aetna or any others, would that have 17 been a source of information for the known and 18 suspected health hazards of asbestos dust and fiber in 19 the Thirties or the Forties or the Fifties, Dr. Rowe? 20 MR. PIERCE: Unfortunately I must 21 object because it assumes facts not in 22 evidence. 23 But go ahead. 24 MR. RICE: Also assumes that he 25 had such knowledge. Calls for 472 1 speculation. 2 A. I was not familiar with the insurance 3 company work in this area. I knew some good insurance 4 people, but I don't know just exactly what their best 5 work was. 6 Q. Would you regard Government bulletins and 7 reports on occupational disease to be good sources, 8 ones that would include some of the best information 9 available about the known and suspected health hazards 10 of asbestos during your years working for Dow? 11 A. That was -- Whatjournal was that? 12 Q. I'm just speaking of Government bulletins 13 and reports generally that would deal with 14 occupational disease hazards such as asbestos. 15 A. I don't know whether I would or not. All 16 depends on who was involved in that particular 17 article. 18 Q. If -- If the author were a person like 19 Anthony Lanza from Metropolitan, would you give 20 credence to his work? 21 A. I didn't know Lanza very well. 22 Q. Did you know of his reputation? 23 A. My personal contacts, as I said, were very 24 limited. I know he had a good reputation, but I have 25 no way of judging it. 473 1 Q. Okay. Well, did you, like, withhold 2 judgment until you could actually become acquainted 3 personally with the authors of the different 4 scientific articles and medical articles that you 5 would encounter in your profession and before you'd 6 give credence to their work? 7 A. I don't know. It seemed that that was the 8 case and very frequently. 9 Q. Dr. Rowe, do you recall ever finding in Dow 10 files any kind of information or publications from 11 Metropolitan Life Insurance Company concerning 12 occupational disease and occupational health hazards? 13 A. I don't recollect. 14 Q. You recollect that Metropolitan, at least 15 for some period of time, provided insurance coverage 16 in the form of disability coverage for Dow employees? 17 A. I don't know. 18 Q. Would you regard persons like Alice Hamilton 19 as a credible source of information on occupational 20 diseases? 21 A. Yes. 22 Q. How about Dr. Harriet Hardy, would you 23 regard Dr. Hardy well, also? 24 A. She had a goodreputation. 25 Q. Is that a "yes"? 474 1 A. Qualified. 2 Q. All right, sir. Was it the practice at Dow 3 during any of the years you worked there to monitor 4 for any of the materials that showed up on the 5 A.C.G.I.H. T.L.V. list that were used or present in 6 the plants? 7 MR. PIERCE: Asked and answered 8 But go ahead. 9 A. Again I'd ask -- Please repeat. 10 Q. Would your industrial hygienists at Dow 11 automatically monitor for any of the materials or for 12 all of the materials on the A.C.G.I.H. threshold limit 13 value list that were known to be present in the Dow 14 plants? 15 A. I don't know. 16 Q. You don't know? 17 A. I don't know. "All" is a very inclusive 18 word. 19 Q. Well, most? 20 A. So, I don't know. 21 Q. Was it the rule that if the material was 22 listed on the A.C.G.I.H. table that the hygienists 23 were expected to monitor for it if it was present in 24 the Dow plant? 25 A. That was the usual case, yes. 475 1 Q. And that was the case going back to the - to 2 the beginning of the A.C.G.I.H. standards in the late 3 Forties, as you recall? 4 A. Probably not. 5 Q. Do you think the extent of the monitoring 6 increased after that time? 7 A. Well, we simply did not have the capacity to 8 do that. We did not even have an industrial 9 hygienist. 10 Q. Until - 11 A. Until '48. 12 Q. '48? About the same time that the T.L.V.'s 13 were published by the A.C.G.I.H., isn't it? 14 A. I don't remember when they were first 15 published. 16 Q. Dr. Rowe, can you tell us who, if anybody, 17 from Dow attended the New York Academy of Science 18 presentations on asbestos disease hazards in 1964? 19 A. I don't remember. 20 Q. Do you recall that anyone went to this - 21 A. I don't recall. 22 Q. Do you recall learning of this symposium, 23 yourself, at some point, the one at Mount Sinai in 24 connection with Dr. Selikoff and his doctors? 25 A. I don't recall. 476 1 Q. Did you ever meet Dr. Irving Selikoff? 2 A. Yes. 3 Q. When was that, sir? 4 A. I don't remember. 5 Q. Was it after the mid-Sixties? 6 A. I don't know. I don't remember the - 7 Q. Can you recall any of the circumstances 8 surrounding this meeting? 9 A. Yes. 10 Q. Could you recount those for us, sir? 11 A. We -- I met with Dr. Selikoff with respect 12 to a major problem with dioxins and Agent Orange, 13 2,4,5-T. 14 Q. Would this not likely, then, have been in 15 maybe the late Seventies, early Eighties? 16 A. No. 17 Q. Earlier than that? 18 A. Oh, yes. It was at the time when this was 19 I don't even remember what the dates were - that had 20 to do with the Agent Orange problem. And Selikoff was 21 very interested in it. And we, as a laboratory, 22 visited Dr. Selikoff and made - presented him with all 23 the toxicological data we had on these compounds in 24 his conference room, I guess, at his laboratory. 25 Q. Did any work by Selikoff or his doctors 477 1 follow from that meeting? 2 A. I don't recollect. 3 Q. What was the purpose of Dow going to meet 4 with - Dow scientists meeting with Dr. Selikoff in 5 connection with Agent Orange? 6 A. As I recollect, Dr. Selikoff asked us if we 7 would share the information we had with him. Seems as 8 though they were doing some work, themselves, and 9 didn't wish to - wished to have the benefit of what we 10 already had learned. 11 Q. I see. Can you recall any other occasions 12 when Dr. Selikoff called on Dow for information or 13 provided any - 14 A. I don't recall. 15 Q. -- any information to Dow? 16 A. I don't recall. 17 Q. Do you think that you or your colleagues in 18 your department at Dow learned anything about asbestos 19 health hazards from the studies of Dr. Selikoff's 20 doctors that were reported in 1964? 21 A. I don't know. 22 Q. Or later? 23 A. I don't know. 24 Q. Wasn't it largely due to the - the report in 25 1964 at Mount Sinai and the subsequent studies that 478 1 Dow finally began to monitor routinely for asbestos in 2 its Texas plants in 1968, Dr. Rowe? 3 A. I - 4 MR. PIERCE: Object to the form; leading. And it's asked and answered. A. I don't know. Q. Can you give us any understanding why in 8 1968 Dow did begin monitoring for asbestos exposures 9 in the Texas plants? 10 A. on't know. 11 MR. PIERCE: Objection to the 12 form. It assumes matters not in 13 evidence. 14 A. on't know. 15 Q. Was Dow a maker of Agent Orange or any of 16 its com 17 A. 18 Q. Was it your belief at the time that Agent 19 Orange 20 A. Yes. 21 Q. Still your belief? 22 A. Yes. 23 Q. In... 24 MR. ALMQUIST: We've been going 25 for another hour here. Are you getting 479 1 ready to switch gears? 2 MR. BLANKS: Oh, okay. Sure. 3 MR. PIERCE: Let's take a 4 short... 5 THE WITNESS: It's time to 6 stretch. 7 MR. PIERCE: How's your pain 8 (directed to the witness)? 9 (AT THIS TIMEA BRIEF RECESS WAS 10 TAKEN, AND THE PROCEEDINGS THEREAFTER 11 RESUMED AS FOLLOWS:) 12 (By Mr. Blanks) 13 Q. Dr. Rowe, you said a few minutes ago that 14 you regarded Agent Orange as a safety material. I 15 wonder if you believe that asbestos insulation, as it 16 was used at Dow plants in the Forties through the 17 Sixties, was a safe material. 18 A. As far as I know. 19 Q. You said - 20 A. Depends on how it's used and the dosage. 21 Q. I sort of spoke over you there. You said it 22 depends on how it's used and the dosage? 23 A. That's right. 24 Q. Okay. So, in some uses and in some dosages 25 it wouldn't be a safe material? 480 1 A. If you have excessive doses, there's nothing 2 that's safe. 3 Q. Well, do you believe, sir, that, as it was 4 used at Dow in the Forties through the Sixties, that 5 asbestos insulation was, in fact, a safe material as 6 used? 7 A. As far as I know. 8 Q. Now, you said back in one of your talks in 9 1974 that "safe" implies absolute safety or no risk. 10 Do you still use the word "safe" that way? 11 MR. PIERCE: Objection to the 12 form. 13 If you're reading from something, 14 please let us know what it is. 15 A. Well, the only safe exposure is no exposure. 16 Q. In some of your speech notes, Dr. Rowe, you 17 refer to Dr. Selikoff of Mount Sinai as "one of our 18 adversaries." Could you explain what you would have 19 meant by that? 20 A. Well, Dr. Selikoff was one of those persons 21 who believed that any exposure was likely to produce 22 with respect to asbestos, as far as I know, that any 23 exposure was something really serious. And I don't 24 believe that that is true. 25 Q. Would you say that an exposure sufficient to 481 1 cause mesothelioma in a worker would be something 2 really serious? 3 A. Would be what? 4 Q. Something really serious. 5 MR. PIERCE: Objection to the 6 form; argumentative. 7 A. Certainly that's a serious response. 8 Q. And do you think that at any time you were 9 at Dow that Dow knew - knew what, really, were 10 asbestos exposures that were not serious? 11 MR. PIERCE: I object to the 12 form. It's confusing. 13 MR. BLANKS: You're right. It was 14 a bad question. Thank you. 15 (By Mr. Blanks) 16 Q. Would you say, Dr. Rowe, that there was a 17 time when you were with Dow that Dow did know to a 18 certainty what amount of asbestos exposure would not 19 be something really serious? 20 A. To the best of my knowledge, exposures 21 controlled to recommended levels were considered to be 22 acceptable. 23 Q. Yes, sir. But the question was did Dow know 24 what levels of exposure would not, in fact, cause any 25 kind of occupational disease. 482 1 MR. PIERCE: Asked and answered. 2 A. I don't know. 3 Q. Do you think that you knew before you left 4 Dow what level of asbestos exposure was certain not to 5 cause disease in any person exposed to it at work? 6 A. I don't know except to say that I - that I 7 don't believe that I have ever seen information which 8 indicated or proved that exposures which were below 9 the accepted level had caused asbestos-type disease. 10 Q. Dr. Rowe, would you expect that one would 11 have cases of asbestosis in workers who had been using 12 asbestos in a safe way, as you've used the term? 13 A. I would -- I guess I'll have you ask that 14 again. 15 Q. Would you expect that you would have cases 16 of asbestosis in workers who had used the material in 17 a way - in a safe way, as you've used the term? 18 A. I have no reason to believe that they would. 19 Q. And, therefore, if you did find cases of 20 asbestosis in workers who had been exposed in a safe 21 way, as you say, that really wouldn't have been a safe 22 use. It would have been unsafe, wouldn't it? 23 MR. PIERCE: Objection to the form 24 of the question. It implies that the 25 only place anyone could have an 483 1 asbestos exposure was from an 2 occupational setting and that the 3 individual involved could not have had 4 exposure at other places. 5 But given that objection and the 6 ambiguous nature of the question, go 7 ahead. 8 MR. PAPPAS: Objection; 9 argumentative. 10 A. My -- My own opinion is that - that, again, 11 it's exposure intensity that is a controlling factor. 12 And I know of nothing, as I said before, where 13 documented exposures could show that the exposure had 14 never exceeded those levels. 15 Q. So, if you found cases of asbestosis in Dow 16 workers, would that lead you to the conclusion that, 17 in fact, their exposures had been excessive? 18 MR. PIERCE: Objection to the form 19 for the same - 20 A. No. Well... 21 MR. PIERCE: -- reasons as given 22 earlier. 23 MR. PAPPAS: Also, speculation. 24 Q. Sir? 25 A. If we knew for sure all the rest of the 484 1 exposures that could possibly have occurred. I don't 2 know the history of the people. I'd have to know 3 that. 4 Q. Like if they'd had some hobby that would 5 cause them to have high asbestos exposures? Is that 6 what you're thinking of? 7 A. I don't know where it might be. 8 Q. In your experience, would the occupational 9 exposures of a worker to asbestos almost always be the 10 most intense and those of the longest duration that 11 you'd find in a person? 12 A. I had no way of knowing. 13 Q. Did you suspect during any of the years that 14 you were with Dow that there were significant 15 nonoccupational exposures to asbestos that people 16 working in your plants could have had? 17 A. I don't know. 18 Q. Did you all give preplacement examinations 19 at Dow to look for indications of occupational disease 20 before you'd put somebody on the payroll? 21 A. Again, that's in a time frame. And I can't 22 identify that. I don't believe that was the case in 23 the early days. It was, I think, quite universal with 24 the latter days. I don't know what that means, 25 either. But the last few years that I was around it 485 1 was... 2 Q. Do you recollect that it was part of the 3 routine in the periodic medical exams during any of 4 the years that the doctor would ask - would ask the 5 employee about his exposures at work or what the 6 employee thought his exposures were to toxic 7 materials? 8 A. I don't know. 9 Q. Did the medical department ever consult with 10 you in toxicology or with your industrial hygienists, 11 that you know of, about what kind of toxic exposures 12 workers could be facing so the doctors would know what 13 kind of disease signs or symptoms to be on the lookout 14 for? 15 A. Did I interpret -- Did the doctors talk to 16 us? 17 Q. Yes, sir. 18 A. Yes. 19 Q. And did they talk to you about "What kind of 20 occupational diseases should we be aware of or on the 21 lookout for?" 22 MR. PIERCE: Objection to the 23 form; leading. 24 A. Well, I'm sure that was the case; but we 25 developed information that we shared first with the 486 1 medical department on materials that were unknown to 2 anybody else or they were compositions which were new 3 where there was no evidence, that we knew of - I mean 4 no toxicological evidence - anywhere. 5 Q. Yes, sir. 6 A. So, the medical department relied on us to 7 tell them what to expect from, more or less, 8 short-term exposures. And that's as far as we could 9 possibly go. 10 Q. Okay. And for those more mundane materials 11 that had been around for a while such as asbestos or 12 silica, you expected the medical department was just 13 relying on their medical training and the medical 14 literature for - 15 A. That was my under - 16 MR. PIERCE: Objection to the 17 form; compound, ambiguous. 18 A. That was my understanding. 19 Q. Okay. I think in the same talk where you 20 used Dr. Selikoff as an example of one of your 21 adversaries, you referred to him as "an artist of 22 innuendo." 23 A. I beg your pardon. 24 Q. "An artist of innuendo." It sounds like a 25 Spiro Agnew-ism, I know, but... 487 1 MR. PIERCE: I like it. However, 2 I'm going to object since we have no 3 way of checking the accuracy of that 4 quotation. 5 But in the context of the question 6 go ahead and answer. 7 Q. Could you elaborate on that, sir? 8 A. I don't know what I was referring to at the 9 moment when I said that. 10 Q. This -- This comes from what was marked as 11 Exhibit 6 to your deposition, sir, around page 63 12 through 65. Let me hand you those. 13 MR. BLANKS: Is there more? Did 14 this fall out of it? 15 (By Mr. Blanks) 16 Q. Let me hand you these three (tendering 17 documents). Do you recognize that as your 18 handwriting, Dr. Rowe? 19 A. (Reviewing document) It sure looks like it. 20 Q. It may be missing a page there. This one 21 got stamped sideways. 66, I think, follows 65. And 22 67 -- Is 65 the first page there? 23 MR. PIERCE: No. Sixty -- It runs 24 63 to 66 now. 25 MR. BLANKS: Okay. 488 I MR. PIERCE: Where are you - 2 MR. BLANKS: We're at the point 3 where Dr. Rowe -- I think he said he 4 recognized that as his handwriting. 5 MR. PIERCE: All right. 6 (By Mr. Blanks) 7 Q. And these would appear to be your notes for 8 a talk you gave somewhere in your career? Yes, sir? 9 A. (Reviewing document) 10 MR. BLANKS: Take that off II (referring to yellow tab on document). 12 MR. PIERCE: Well, I think now my 13 objection to the quotation is all the 14 more pertinent since on page 65 15 Selikoff is certainly indicated as an 16 artist of innuendo but rather as an 17 example of people who go public and not 18 worry about the correct - correctness 19 or the probability of their 20 statements. 21 So, yeah, I think that was 22 appropriate, indeed, as an objection. 23 MR. BLANKS: You think that was an 24 appropriate objection? What was the 25 objection? Bet you can't even remember 489 1 it now. 2 MR. PIERCE: That we did not see 3 the quote. 4 MR. BLANKS: Ah. Well, now we've 5 remedied that. 6 MR. PIERCE: And now your quote 7 was incorrect. 8 (By Mr. Blanks) 9 Q. My God, did you not say "artist of 10 innuendo," Dr. Rowe? You didn't say "may bob of 11 negative-ism," did you? 12 MR. PIERCE: I said that - 13 A. Well, I explained it -- Exactly what I meant 14 is explained right there. 15 Q. Well, our colloquy aside, would you - now 16 that you have the paper in front of you, would you 17 tell us -- This is a copy of notes you made for a talk 18 you gave somewhere. Would that be correct? 19 A. It's my handwriting. 20 Q. All right, sir. And could you explain to us 21 what you meant when you used Dr. Selikoff as an 22 example of an artist of innuendo? 23 MR. ALMQUIST: I'm going to object 24 to the characterization since I'm not 25 sure that's what the document says. 490 1 A. Statements such as "may" and -- Pretty soon 2 these sort of things get repeated and they get into 3 the press. And by the time they've got there, they're 4 quoted as fact. And often they're not really 5 supported by factual data (tendering document). 6 Q. And when you said "may," you mean like a 7 statement that asbestos may cause cancer was the type 8 of -9 A. Does it say asbestos? 10 Q. No, it doesn't. But -11 A. Okay. 12 Q. -- it wasn't clear when you said a statement 13 such as "may" was an example of innuendo. 14 A. This is -- I'm speaking generally. 15 Q. Your -- Your quote here says "They are 16 articles " -- I'm sorry. Let me start over. You say, 17 "They are artists of innuendo -- Such and such may 18 cause cancer." 19 A. Uh-huh. 20 Q. That's what you meant as an innuendo that 21 could be misleading? 22 A. It was an example of using "may." "This may 23 cause cancer." May cause almost anything that's 24 that's disagreeable to sway public opinion. 25 Q. Do you think, Dr. Rowe, that it's - that 491 1 it's misleading to - for a researcher to say that a 2 material being investigated may cause cancer while 3 he's still gathering data? 4 A. I guess I don't understand your question. 5 Q. Well, I guess -- At what point is it not 6 misleading to say that asbestos may cause cancer? 7 That's what I'm trying to - 8 A. I didn't say that asbestos may cause 9 cancer. I was speaking in -- Dr. Selikoff has spoken 10 on many things other than sil - than asbestos. 11 MR. PIERCE: And, also, are your 12 questions related to the scientific 13 literature, to the use of newspaper and 14 public access as, I believe, is implied 15 in the exhibit? I believe it's 16 Exhibit 6. I mean, I think you have to 17 really limit it to what the talk is 18 about for us to understand where you're 19 going, Mr. Blanks. 20 Q. I think you said here, quoting you, 21 "Contrarywise our adversaries use every opportunity to 22 go public and they worry not about the" 23 "correctness," perhaps - "or the probability of their 24 statements as we do. Example, Selikoff." And then 25 you go on to say they're artists of innuendo. 492 1 This general statement with Dr. Selikoff as 2 an example, is that one that you say doesn't relate to 3 his work on asbestos and asbestos as a cause of 4 cancer? 5 A. I didn't say that. 6 Q. Do you think it does relate to his work on 7 cancer as first came to light in the early Sixties? 8 A. I don't have any question about that 9 that - the asbestos situation. When he said "may," 10 well, I wouldn't argue with that; but there are other 11 things that he has spoken to -- And other people have, 12 too. Not only Dr. Selikoff but others have frequently 13 used something that is in prepublication stage and 14 quote it in the press for some purpose to their 15 benefit. And we have seen many examples of this, not 16 only with Dr. Selikoff but with others, some of whom I 17 don't know who they were. They just came out as 18 edicts that this is bad, but there's not the data 19 behind it. Anybody -- I could -- I could postulate 20 that - most anything you want to mention that it may 21 be carcinogenic. And give me five years and I might 22 be able to prove it. 23 MR. PIERCE: And, Mr. Blanks, if I 24 could just bring to your attention - 25 When you read the sentence "Such and 493 1 such may cause cancer," you did not 2 read the entire sentence which is 3 completed when it says "when in fact 4 the data weigh heavily in the other 5 direction." 6 Q. What's - 7 MR. PIERCE: That's page 65. 8 Q. Could you tell us, Dr. Rowe, what is the 9 example you give there in that next-to-the-last 10 paragraph? I can't read it. 11 A. Are you referring to the paragraph starting 12 with "They are" or what? 13 Q. No, sir. The one right below it where it 14 says "Example." 15 A. It says "Elsea." And I'm trying to remember 16 what that was. I don't remember. I don't remember 17 what that refers to. 18 Q. I couldn't - couldn't connect it with 19 anything. Would you look at the next page of that, 20 that first full paragraph where you start out "As you 21 can probably tell from the thrust of my remarks," and 22 then go on "I am concerned about our ability to 23 communicate our science effectively to others than 24 the friendly scientific community." Do you see that, 25 sir? 494 1 A. Yes. 2 Q. Who did you regard as "the friendly 3 scientific community"? 4 A. Those scientists who are primarily concerned 5 with dealing with facts and not fancy. 6 Q. All right, sir. You include yourself and 7 your colleagues at Dow in that group who deals with 8 facts and not - 9 A. I do. 10 Q. -- fancy? In connection with the 11 Mount Sinai studies on asbestos as a cause of disease 12 and cancer, would you view the Mount Sinai physicians 13 and their epidemiologists as scientists who deal in 14 facts and not fancy? 15 A. When the data is there to support it. 16 Q. Is it your view that the data was there to 17 support their conclusions in 1964 and in their 18 subsequent reports? 19 MR. PIERCE: In respect to what, 20 Mr. Blanks? 21 MR. BLANKS: The conclusions that 22 they set out about asbestos as a cause 23 of lung cancer and other matters. 24 A. I think I have mentioned several times I do 25 not have a problem with the asbestos situation. 495 1 (By Mr. Blanks) 2 Q. All right, sir. So, as far as - 3 A. Insofar as I am aware - And I'm certainly no 4 expert in asbestos - my impression is that asbestos in 5 appropriate dosages and types of exposure can cause 6 cancer. I don't argue this one bit. 7 Q. Okay. So, you don't view the Selikoff and 8 Mount Sinai work from the Sixties as being bad 9 science, then? 10 MR. PIERCE: Meaning -- The "work 11 from the Sixties" meaning the asbestos 12 and mesothelioma work, not any 13 Selikoff work; is that correct, 14 Mr. Blanks? 15 MR. BLANKS: Yeah. 16 A. I'm referring to that. Yes. 17 (By Mr. Blanks) 18 Q. Yes. 19 A. I agree with that. 20 Q. You wouldn't say that's bad science, would 21 you? 22 A. No. No. I didn't say that. 23 Q. Okay. Well, I just want to make that 24 clear. 25 MR. PIERCE: And we've certainly 496 1 made it clear often enough. 2 MR. BLANKS: Anything worth doing 3 is worth overdoing, Mr. Pierce. 4 (By Mr. Blanks) 5 Q. Would you agree, then, Dr. Rowe, that if the 6 best information available by 1965 said that asbestos 7 was a cause of lung cancer that - 8 A. I wouldn't argue that point. 9 Q. Okay. Would you agree, then, that cancer 10 should have been reported by Dow as an asbestos health 11 hazard - 12 A. I don't know. 13 Q. -- by 1965? 14 MR. PIERCE: I'm going to object 15 to the ambiguity. 16 A. Again I have to relate it to the intensity 17 of exposure. 18 Q. Yes, sir? 19 A. Well, that's my answer. 20 Q. Well, I mean, how in providing information 21 to your colleagues or your employees would you relate 22 that fact of asbestos-causing cancer to exposure? How 23 would you tell that to a worker? 24 A. Well, you would specify the levels of 25 exposure that the supposed authorities or experts 497 1 would indicate would be safe. If you have a -- If you 2 have -- If you don't take care of yourself and so 3 forth and you get into a cloud of this stuff all the 4 time -- If that's the case, that's bad news. 5 Q. Well, in terms of relaying this information 6 to people working in your plants, though, I mean was 7 it the approach to just say "Keep your exposures below 8 this level, and you will be okay"? 9 A. I don't know exactly what was said in the 10 plants. I wasn't there. 11 Q. Well, if, as you said, the view was by 1965 12 that asbestos could cause lung cancer, how then would 13 you relay that to a worker? I mean, would you say, 14 "Asbestos can cause cancer. That's one of the health 15 hazards"? 16 MR. PIERCE: I'd like to object to 17 the form. It calls for speculation. 18 He's told you he has no firsthand 19 knowledge of what was said. 20 But go ahead. 21 A. I don't know that it wasn't said. I'm 22 surprised if it wasn't. 23 Q. Can you tell me a little bit about the 24 history of the documents that Dow used to describe 25 material health hazards? Are those things that 498 1 preceded the Material Safety Data Sheets? Do you know 2 what I'm talking about? 3 A. (No response) 4 Q. Didn't you have a form to report health 5 hazard information on about specific materials? 6 A. Yes. 7 Q. And what did you call that form? Was it 8 something called "Data Sheet of Properties, Health 9 Hazards, and Precautions for Safe Handling of 10 Materials"? Does that ring a bell? 11 A. That rings a bell. 12 Q. Do you recognize the form (tendering 13 document to Mr. Pierce)? 14 MR. PIERCE: Thanks (reviews and 15 tenders document to the witness) 16 A. (Reviewing document) Yes. 17 Q. How far back in time, approximately, do 18 these forms or something equivalent to it at Dow, 19 Dr. Rowe? 20 A. I don't know. It would have been after 21 Mr. Hoyle begun operations. And I can't tell you 22 the -- I just don't know. 23 Q. So, probably after '48? 24 A. I'm sure it was after '48. 25 Q. Were these prepared just as a matter of 499 1 routine as the toxicology department and the 2 industrial hygiene department began to explore 3 materials and a bank of them created - a library of 4 them built up? 5 A. I really don't know what you're -- Rephrase 6 it, would you, please? 7 Q. I'm wondering, Dr. Rowe, whether these kind 8 of forms were done on an ad hoc basis when a question 9 would arise, when a problem might be reported or 10 suspected. 11 A. No. 12 Q. Or were they done as part of a routine of 13 trying to set up a safety data sheet for every 14 potential toxic material in the plant that took place 15 over time? 16 A. Well, they were routine after a certain 17 point; but I can't tell you justwhenthat point was. 18 Q. Okay. Butthey weren'tone-shot deals - 19 A. Oh, no. 20 Q. -- in response to a - some fellow reporting 21 a problem with a skin ailment or what have you? Okay. 22 MR. BLANKS: Could I have that 23 back now (indicating document)? 24 MR. PIERCE: Sure. 25 MR. BLANKS: I'll have to hand it 500 1 back to you in a second. 2 (By Mr. Blanks) 3 Q. Would it be surprising to you that in 1965 4 in a biochemical research laboratory report regarding 5 exposures to fine dust encountered by workers cutting 6 various types of pipe material that in discussing 7 asbestos and its health hazards that no mention 8 whatever would be made of asbestos as a carcinogen or 9 even a suspected carcinogen, Dr. Rowe? 10 A. I don't know whether the particular person 11 that prepared that was aware of it or not. I don't 12 know. 13 Q. Would you expect that Mr. Hoyle, had he 14 checked that report, would have been aware of 15 asbestos' propensity to cause cancer in 1965? 16 MR. PIERCE: Are you looking at a 17 particular document? And, if so, bring 18 it to our attention. 19 MR. BLANKS: We're looking at 20 Hoyle Exhibit 7. 21 MR. ALMQUIST: I don't have the 22 quote. If you've got it -- I don't 23 have a copy of that. 24 And I'm also going to object to 25 the question because it asks him to 501 1 speculate as to what Mr. Hoyle 2 would have known in 1965. 3 MR. BLANKS: Well, certainly, I 4 wouldn't expect somebody in the 5 toxicology department to have any 6 notion of what Mr. Hoyle would know 7 about asbestos and cancer in 1965. 8 MR. ALMQUIST: Object to the 9 side-bar comment. 10 (By Mr. Blanks) 11 Q. The question, sir, was: Would you have 12 expected Mr. Hoyle, given his experience and training, 13 by 1965 to have know that cancer was one of the health 14 hazards associated with asbestos dust exposure? 15 MR. ALMQUIST: Same objection. 16 A. I would have expected it, but I don't know. 17 Q. If he had known about it, wouldn't you have 18 expected that he would mention asbestos caused cancer 19 as one of the health hazards of asbestos exposure and 20 to have put it in a report - due to asbestos exposure? 21 MR. PIERCE: A report relating to 22 what? 23 MR. BLANKS: A report relating to 24 exposures to workers cutting various 25 types of pipe covering material, 502 1 including asbestos. 2 A. Well, I'd like to read the whole report, if 3 I could, because I don't remember it at all. 4 (By Mr. Blanks) 5 Q. All right, sir. I'm happy to make that 6 available to you. I just wonder if in discussing 7 asbestos health hazards you would have expected 8 Mr. Hoyle, at least by 1965, to mention cancer as one 9 of the potential health hazards. 10 A. I don't know what he was discussing. 11 MR. PIERCE: That -- What's the 12 date of that report? 13 MR. BLANKS: This is a July 21st, 14 1965, report by Mr. E. J. Schneider, 15 checked by H. R. Hoyle. 16 (By Mr. Blanks) 17 Q. Do you recall Mr. Schneider? 18 A. He was an industrial hygienist. 19 Q. I take it that Mr. Hoyle would have been 20 reporting to Dr. Adams in 1965. 21 A. Yes. 22 Q. And not to you. 23 A. I don't -- I don't recollect that that -- I 24 think that's the case. He didn't report to me, I 25 don't believe, until it was in the - '70 or 503 1 thereabouts. 2 Q. All right, sir. I'm happy to pass this over 3 to you (tendering document). 4 A. (Reviewing document) 5 Q. Okay. Do you have anything you want to add 6 to what you covered a few minutes ago about that 7 report, Dr. Rowe? 8 A. Well, it would seem to me that it was a 9 pretty decent report. The word "cancer" is not 10 mentioned but "asbestosis." And that was -- I didn't 11 know when the definitive nature of the carcinogenesis 12 appeared; but asbestosis was the same bag of worms as 13 far as that's concerned. But I think that's a very 14 good report. 15 Q. All right, sir. 16 A. It analyzes the situation and tells them 17 what they should be doing differently. 18 Q. When you say "asbestosis is the same bag of 19 worms as cancer," - 20 A. It's a serious -- It's a serious 21 incapacitating disease in the end. We certainly don't 22 want asbestosis. 23 Q. So, the goal would have been to prevent 24 asbestosis. And if you'd done that, perhaps you would 25 have prevented any cancers that may have gone with 504 1 it. True? 2 A. That would be my offhand opinion without 3 being an expert in the area. 4 Q. Okay. And if you had, in fact, been using 5 industrial hygiene controls and medical controls to 6 sufficient to prevent any cases of asbestosis, you 7 would certainly have increased the probability of 8 preventing cases of asbestos-related cancer in that 9 same work force, correct? 10 A. I think that's a fair statement. 11 Q. But you don't have any explanation for us 12 why in 1965 the authors of this Dow report done for 13 Dow Corning failed to mention that asbestos was a 14 suspected or probable carcinogen - 15 A. I don't know. 16 Q. -- in discussing the health hazards of 17 asbestos? 18 A. I don't know. 19 Q. As to this type of form that we looked at a 20 little earlier, the one that reported on the health 21 hazards of different materials, were those health 22 hazard forms, if I can use that term, kept on file at 23 Dow for the different departments to have access to? 24 A. To my knowledge, yes. 25 Q. Would you have had a collection of those 505 1 available in your department? 2 A. I'm sure we would. 3 Q. And updates, if any were made, would come to 4 you to replace the obsolete edition or version of - 5 A. They wouldn't come to me but they would -- 6 Routinely, unless something got screwed up, they would 7 be in the - in the file. 8 Q. Okay. Do you -- I got the impression that 9 some of these - And you have one in front of you; so, 10 that may as well do as an example - were prepared 11 around the time of the inquiry that is mentioned on 12 the form. Can you help me to understand that? 13 A. I don't know. These things... 14 MR. PIERCE: I'm sorry. I'd like 15 to pose an objection. Both documents 16 speak for themselves. They're both 17 dated. And whether they're close in 18 time or not is something that certainly 19 you're quite as capable of finding as 20 Dr. Rowe is. 21 MR. BLANKS: Well, if the 22 documents spoke for themselves, I guess 23 we wouldn't have to speak with one 24 another. But I just 25 MR. PIERCE: Well, if a document 506 1 is labeled 1958, another one 1965, I 2 think that's pretty clear. Now, what 3 you mean by "close in time," I don't 4 know. 5 MR. BLANKS: Let me borrow the 6 exhibits back. 7 MR. PIERCE: (Tendering documents) 8 (By Mr. Blanks) 9 Q. Dr. Rowe, what I'm wondering is this, sir. 10 And this Exhibit No. 2 is a sufficient example for the 11 question. 12 MR. PIERCE: Is this Exhibit 2 13 from the Hoyle deposition or 14 from Dr. Rowe's deposition? 15 MR. BLANKS: From Mr. Hoyle's 16 deposition. 17 (By Mr. Blanks) 18 Q. There is a report with the same format as 19 the one you looked at on the asbestos matter regarding 20 pipe covers that - in this case the result of a 21 range-finding tox. test on a floor tile formulation 22 that is done by Ken Olson in April 21st of 1958. And 23 attached to it was the Data Sheet of Properties, 24 Health Hazards, and Precautions for Safe Handling of 25 Materials, discussing the components of the floor tile 507 1 formulation. And it's dated various dates beginning 2 in mid-March, going through April 7th of '58, just the 3 weeks preceding Mr. Olson's report. And, so, I was - 4 That's why I was asking you, sir, whether or not these 5 safe handling of material sheets that mention health 6 hazards were from time to time prepared to go along 7 with an investigation that was done by industrial 8 hygiene as opposed to being part of a library of such 9 data sheets. 10 A. The -- I can't give you the dates. I don't 11 know. But there were -- There was a time when the 12 value of those was appreciated and we prepared -- The 13 industrial hygienist would take the toxicology reports 14 and prepare that particular form, which was their 15 form, and that would become a part of that report that 16 was distributed. 17 Q. Okay. 18 A. And those sheets then -- There may have been 19 separate ones that would be sent to the particular 20 areas or plant superintendents that - that were 21 involved. 22 Q. Okay. And from time to time such sheets 23 might be sent to customers, as well? 24 A. I don't remember whether those were -- I 25 don't remember -- I don't remember. 508 1 Q. Dr. Rowe, in one of your rough drafts for a 2 speech of - perhaps given in the late Seventies, you 3 mention - you mentioned some things I'd like to ask 4 you about. 5 MR. BLANKS: It's Rowe 6 Exhibit 7 that we're referring to, 7 Mr. Almquist. 8 (By Mr. Blanks) 9 Q. And it has a title on it, sir, of 10 "Environmental Health," to put it in a little bit of 11 context. But one thing you mention there was -- You 12 said by 1946 that bimonthly conferences were being 13 held between medical, toxicology, industrial hygiene, 14 and safety. Do you recall that that was so? 15 MR. PIERCE: Could you give us a 16 page on that, please? 17 Four? Okay. 18 A. Again, I can't testify to the dates; but 19 that was - that was common practice. We did that 20 quite often. Maybe we might have missed a meeting or 21 two, but it was - generally that was the routine. 22 Q. Okay. Forgive me if we've touched on this 23 in prior visits. I don't recall that we did. But 24 this - this talk says that these conferences between 25 the departments - medical, toxicology, industrial 509 1 hygiene, and safety - have continued to the present 2 date. And we surmise that present date in this paper 3 to be somewhere around '76 or after. 4 But would that be your recollection that for 5 that 30-year period - that these kind of bimonthly 6 meetings were taking place? 7 A. As far as I know, they were; but I probably 8 was not involved in those in the later years. 9 Q. Why would that be, sir? 10 A. Because I hada different position. 11 Q. "The later years" meaning just the last few 12 years you were at Dow, from '79 - 13 A. Yes. 14 Q. -- back into '73, that last six years or so? 15 A. Yeah. In that time frame. 16 Q. That would have been the period when you 17 became a director of toxicological affairs and related 18 jobs? 19 A. Yes. 20 Q. Okay. Were notes made, Dr. Rowe, of these 21 bimonthly conferences between the medical, the 22 toxicological, the industrial hygiene, and the safety 23 staffs at Dow? 24 A. I don't remember. I don't think so. 25 Q. Was this called a committee or just didn't 510 1 have any -- Did it have any title? 2 A. We called it the biochem/safety/medical 3 meetings. 4 Q. Okay. Sounds like a descriptive title. 5 Could you share with us sort of the format 6 of these? Were they informal just get-togethers and 7 round-table discussions or were there agendas for 8 these meetings or both? 9 A. They were definitely informal. We -- We met 10 and had lunch at the expense of the medical 11 department. 12 Q. Even better. 13 A. And the agenda was -- Sometimes there were 14 specific items that somebody wanted to discuss, but 15 generally what they amounted to was a place where the 16 medical department might have seen someone and 17 wondered if what was wrong with them could possibly be 18 related to this or that or so on. 19 The industrial hygiene or safety department 20 might come in with a - something that they didn't like 21 the looks of out in the plant and ask medical if they 22 had had any particular problems. Action could be 23 instituted by any of the people there. 24 In other words, if the medical department 25 had seen someone who had a rash, industrial hygienists 511 1 would probably be detailed to investigate and see what 2 it was, if it was occupationally caused, or maybe talk 3 to the man and find out what he had been doing at 4 home. 5 Might work the other way. Might be that the 6 safety department had seen something. The safety 7 department was primarily concerned with fire and the 8 mechanical hazards, but they were in the plant and 9 often observed things that they didn't think were 10 right. And they might have wanted industrial 11 hygienists to check on it. 12 Toxicology was there to pass on any new 13 information on materials that perhaps had been 14 they'd been requested to look at in previous meetings 15 or otherwise. Particularly anything remarkable, would 16 be called. 17 Secondly, if there were materials that 18 suddenly appeared that we didn't have any information 19 on - the medical department didn't have - they would 20 ask us if we would get a sample and run it through the 21 screen to see if there was anything unusual about it. 22 So, it was a communication - informal communication, 23 gathering of people. 24 Now, the physicians, whoever was there, 25 except who was duty - was on duty on the floor during 512 1 the noon hour would probably be attending. Sometimes 2 even the nurses, safety department representative 3 not necessarily the same person each time - and the 4 same for toxicology and industrial hygiene. 5 MR. PIERCE: Joe, if you're not 6 going to finish very shortly, perhaps 7 this is an appropriate time. We can 8 pick it up tomorrow. I think we've had 9 a couple hours now, unless you think 10 you're going to finish early. 11 MR. BLANKS: Well, I'm finished 12 with this little talk here but - 13 MR. BREWTON: You have seven 14 minutes. 15 MR. BLANKS: Oh. Seven minutes? 16 Let's run out the tape. 17 MR. PIERCE: Okay. 18 (By Mr. Blanks) 19 Q. All right, sir. And I guess you found these 20 biochemical/safety/medical meetings to be a good 21 opportunity to exchange ideas and to share new 22 information that you may have read about in the 23 literature or encountered at meetings and so on. 24 A. That's right. 25 Q. Could you tell us just briefly about the 513 1 retrieval system that was created in 1954 to document 2 chemical exposures' causes and consequences? 3 MR. PIERCE: Objection to the 4 form; leading. It assumes facts not in 5 evidence. And you're reading from a 6 document that we don't have access to. 7 MR. BLANKS: Page 5. 8 MR. HOBSON: Page 5. 9 MR. BLANKS: Page 5. 10 MR. PIERCE: Of what? 11 MR. HOBSON: The same thing. 12 MR. PIERCE: Oh. 13 MR. BLANKS: I try to lead 14 you from page to page, and still you 15 complain. 16 MR. PIERCE: Well, thank youfor 17 bringing this to our attention. 18 MR. HOBSON: First full 19 paragraph. 20 A. Is this supposed to have to do with the 21 question? 22 (By Mr. Blanks) 23 Q. Yes, sir. Well, I don't know. Mr. Pierce 24 always likes to read these things. I figured you'd 25 know from your recollection. 514 1 A. Well, I -- The name didn't ring a bell 2 quickly; so, I'm trying to figure out what it was we 3 were talking about. 4 Q. I was just wondering what you remember about 5 the beginnings which, according to this paper, were 6 1954 of a retrieval system to document exposures' 7 causes and consequences. 8 A. Well, I'm blank. 9 Q. This refers to acute chemical exposures. 10 So, perhaps it was just limited to that. 11 A. I don't remember. 12 Q. Okay. Do you remember anything like this 13 that may have evolved into the computer-based system 14 that was being used in the late Seventies, or could 15 you tell us anything about the computer data base of 16 your last decade there that had health hazard 17 information in it? 18 A. The computer laboratory had set up a - the 19 program. And I do not remember... I don't remember 20 what the source of information was that they had. And 21 it just -- I don't remember. That's all there is to 22 it. 23 Q. Okay. 24 A. We had a computer system that was gathering 25 data, but that's as far as I can say. 515 1 Q. Do you recall around 1967 that biostatistics 2 and epidemiology were included and made a part of the 3 Dow environmental health program? 4 A. We incorporated that, yes. I don't know the 5 dates. 6 Q. Hired an epidemiologist, did you? 7 A. Yes. 8 Q. Were there epidemiology studies, then, done 9 of Dow employees, looking for occupational disease? 10 A. Yes. 11 Q. These were done, like, in-house by the Dow 12 epidemiologist, as you remember? 13 A. Yes. 14 Q. Can you recall, sir, if there before then 15 had been any studies done by outside folks that would 16 have included Dow workers in the epidemiology study? 17 A. I don't remember... I just don't remember 18 any. Any time the epidemiological work -- If there 19 was any done before the time we got the 20 epidemiologist, it would have been through the medical 21 department. 22 Q. Could you tellus anything, sir, about the 23 corporate ecology council that this paper says was 24 created by the board of directors in '67? 25 A. That was a group of people whose charge it 516 1 was to - basically to study the possible ecological 2 effects of disposal of materials, containers, and that 3 type of problem that you find in normal distribution 4 systems and to look at new - new materials to see what 5 effect they might have on probably some of the simple 6 systems in the environment. 7 Q. How about the Dow environmental testing 8 advisory board, what role did that have? 9 A. That was another similar group that - with 10 various disciplines in it to plan and - studies that 11 people thought would be appropriate to conduct. 12 Q. Did you have anything to do with either the 13 environmental testing advisory board or the corporate 14 ecology council? 15 MR. PIERCE: Objection to the 16 form; compound. And "having anything 17 to do with" is rather vague and 18 ambiguous. 19 But go ahead. 20 A. Was it -- The question was did I have a part 21 to do? 22 Q. Yes, sir. 23 A. I was -- I was a member of the - of the 24 board. 25 Q. Of the advisory board? 517 1 A. Both of them, I think. 2 Q. I'm sorry. Both? 3 A. Both, yes. 4 Q. I see. Okay. 5 MR. BLANKS: We're out of time. 6 Okay. Thanks for the extra - 7 MR. PIERCE: Nine o'clock? 8 MR. BLANKS: -- couple of minutes. 9 9:00 a.m. 10 MR. PIERCE: See you tomorrow. 11 MR. BLANKS: Thank you, Dr. Rowe. 12 Have a good evening, sir. 13 (AT 3:19 P.M., ON MAY 11, 1993, 14 THE DEPOSITION WAS RECESSED. AT 15 9:50 A.M., ON MAY 12, 1993, THE 16 DEPOSITION RESUMED AS FOLLOWS:) 17 18 RESUMPTION OF EXAMINATION BY MR. BLANKS: 19 Q. Good morning again, Dr. Rowe. 20 A. Good morning. 21 Q. I understand you went through your records 22 and found some more papers for us which came this 23 morning. I appreciate your taking the time to make 24 that effort and apologize for the substantial 25 inconvenience it must have caused you. 518 1 A. Okay. 2 Q. We'll get to those documents later on and 3 see if we can deal with them then; but I appreciate 4 your trouble, sir. 5 I think when we quit yesterday we were 6 talking about epidemiology studies that the medical 7 department may have done and then the fact that Dow 8 had hired a biostatistician and epidemiologist 9 somewhere around '67 or so, as your notes seem to 10 show. 11 Do you recollect, sir, any particular 12 epidemiology studies that were done before you left 13 Dow that would have touched on cancer cases in the Dow 14 work force? 15 A. I'm not familiar with them. 16 Q. Okay. Would those studies have been kept in 17 the medical department or the tox - the biomedical 18 research department? 19 MR. PIERCE: Objection to the 20 form. He indicated he had no knowledge 21 of such studies. 22 A. It might be in either. 23 Q. Do you recall that these type studies would 24 have come to you as a person in a position of 25 responsibility after '67? 519 1 A. No. I didn't - didn't have anything to do 2 with the epidemiology people. 3 Q. Okay. Dr. Rowe, during that time when you 4 were administratively in charge of industrial 5 hygiene - or earlier, if it's the case - if a Dow 6 industrial hygienist or a Dow safety man had seen 7 visible dust in the workplace in connection with 8 insulation work, for example, what would you have 9 expected your industrial hygienist to do? 10 MR. PIERCE: Objection to the 11 form. It's compound. It mentions two 12 kinds and then asks only about one. 13 Confusing. Ambiguous. 14 Go ahead. 15 A. I would have expected them to investigate 16 the situation and determine whether or not there was a 17 reasonable expectation of a hazardous situation. 18 Q. If the people responsible for health and 19 safety in the Dow plant had seen a turnaround or a 20 shutdown being done where there was dust being 21 generated from asbestos around trades just besides the 22 insulator's, what would you have expected them to do? 23 A. I don't know. 24 Q. Would you not have expected them to 25 investigate the exposure levels for the people working 520 1 in or near that dust cloud that we've postulated? 2 A. I think my answer to your other question 3 covered your -- I don't know any more. I just said I 4 would have expected them to investigate and that... 5 Q. All right, sir. What if your people at Dow 6 responsible for health and safety on the job had seen 7 men handling asbestos insulation and working without 8 respiratory protection, what would the response be 9 that you'd expect to that situation? 10 MR. ALMQUIST: I object to the 11 vagueness of the question. It doesn't 12 have a time period associated with it. 13 A. I would expect them to suggest remedial 14 action. 15 Q. What would you have expected had your health 16 and safety people at Dow seen men working with 17 asbestos insulation and not using wet methods? 18 MR. PIERCE: Do we have a time 19 frame? 20 MR. BLANKS: In any time frame. 21 A. I would expect them to correct the situation 22 as they saw it - as they determined it - whatever it 23 to be. 24 (By Mr. Blanks) 25 Q. Have you, yourself, ever observed a 521 1 turnaround or shutdown in a Dow plant? 2 A. Observed? 3 Q. Well, been there to see any part of that 4 sort of maintenance operation, - 5 A. No. 6 Q. -- a major shutdown. Am I using a term that 7 was familiar to you about a shutdown or a turnaround? 8 A. I'm interpreting it to mean closing the 9 plant. 10 Q. Closing the... You mean like closing the 11 plant for good or... 12 A. Whatever. 13 MR. PIERCE: Why don't you define 14 your term, and then you won't have to 15 go through this. 16 Q. Well, what term was used at Dow to describe 17 the periodic major maintenance work on a unit in a 18 plant where you'd shut down the unit and come in and 19 do extensive preventive maintenance and routine 20 maintenance -21 A. I don't know what they called it. 22 Q. -- on a periodic basis? 23 A. I don't know what they called it. I don't 24 know that there was a specific name for it. If 25 someone were going to do that, they would have 522 1 described what they were going to do. 2 Q. Do you know that such things were done from 3 time to time on Dow units? 4 MR. PIERCE: Objection to the 5 form; vague, confusing. 6 A. Yes. 7 Q. Okay. Well, that was the type of 8 maintenance operation I was describing when I used the 9 word "turnaround" or "shutdown." 10 A. Oh, I see. 11 Q. So, with that understanding, did you ever 12 observe that kind of maintenance operation going on at 13 a Dow plant? 14 A. I never did. 15 Q. All right, sir. Did you ever personally 16 observe asbestos insulation being handled in any Dow 17 facility whether in a shop or in the field or in a 18 warehouse? 19 A. No. 20 Q. Would it also be true, Dr. Rowe, that 21 personally you've never seen a measured 22 5-million-particle-per-cubic-foot asbestos dust 23 concentration in air? 24 A. I don't recall ever. 25 Q. Okay. Sir, did you use asbestos in your 523 1 laboratories for any purposes? 2 A. I believe we have. 3 Q. Would that have been in things like Gooch 4 filters and - 5 A. As a -- As a filter bed in different types 6 of filters where you're filtering corrosive 7 materials. And asbestos was a common bed that you 8 prepared, yourself. 9 Q. Okay. Would you start with a dry asbestos 10 material and then prepare some sort of a slurry to 11 make the filter? Is that how it was done? 12 A. I don't remember how we did it. 13 Q. Okay. Could you describe for us the kind of 14 precautions that you recall using in the Dow 15 toxicology labs when dealing with materials of 16 suspected or unknown toxicity? 17 MR. PIERCE: Could we have a time 18 frame? 19 MR. BLANKS: Well, I think that we 20 could cover this over the many years 21 that Dr. Rowe did it. 22 A. You mean generally handle - how we handled 23 materials or what? I don't quite understand your... 24 (By Mr. Blanks) 25 Q. All right, sir. Let me make a little 524 1 preface to make it clear. I gather from what you've 2 told us that some of the important work done in your 3 toxicology lab was directed at determining the 4 toxicity of materials that were going to be used at 5 Dow - materials that you at least thought might pose 6 some health hazard to either your own workers or your 7 customers. So, I'm wondering, then, in handling 8 these, let's say, suspect materials what kind of 9 protective measures over the years you and your 10 scientists and technicians would have used in the 11 handling of the suspect materials in the lab. 12 MR. PIERCE: Objection to the 13 form. Objection to characterization of 14 his earlier testimony and to vague 15 terminology, ambiguities within. 16 A. Well, we handled many, many compounds about 17 which there was no knowledge of toxicology type or 18 physiological effects. That was our job to determine 19 what those properties would be. So, when an unknown 20 material was submitted to the laboratory for 21 evaluation, regardless of what we thought, we handled 22 the material so that we did not have exposure or if 23 there was it was trivial. That was our job, to find 24 out what was the significance of various types of 25 exposure. And, to my knowledge, we've handled some 525 1 extremely toxic materials. Extremely toxic. We have 2 never in our laboratory had a lost-time injury due to 3 any of our laboratory people working with totally 4 unknown materials. 5 Q. Do you know, sir, whether any of your 6 laboratory people developed any occupational disease 7 as a result of exposures to the materials you examined 8 in the lab? 9 A. Not to my knowledge. 10 Q. Could you give us some specifics by way of 11 example, Dr. Rowe, over the different decades that you 12 were in toxicology of the sort of precautionary 13 measures or protective equipment or means that you 14 used to prevent these possible exposures to the 15 materials you were examining in the lab? 16 MR. PIERCE: Objection to the 17 form; compound question. 18 And this -- Just for 19 clarification: Is this for his entire 20 time at Dow? 21 MR. BLANKS: Well, I think I said 22 over the years. 23 MR. PIERCE: Okay. 24 MR. BLANKS: You know, I ask these 25 compound questions so that we can kill 526 1 two or three birds with one stone. 2 Dr. Rowe hadn't let one slip by yet 3 but... 4 (By Mr. Blanks) 5 Q. I'd just like for the jury to understand the 6 precautionary measures that you used during the 7 different decades to protect your lab workers from any 8 exposure to the materials that you were testing for 9 toxicity. 10 MR. BLANKS: You're just making me 11 better (directed to Mr. Pierce). 12 A. With respect to possible eye contact, our 13 people all were required to wear eye protection. With 14 respect to skin contact, we trained our people not to 15 have skin contact. 16 Now, you can, again, expect that accidents 17 will happen and you'll have a spill or something of 18 this nature. If you do, the first instruction is "Get 19 to the sink and wash now. Don't wait." If it was a 20 material that was volatile and there was a potential 21 for inhalation, we conducted the work in a hood so as 22 to minimize or prevent - at least minimize the 23 possibility of inhalation. 24 Q. And a hood would be like an exhaust hood? 25 A. Just like a laboratory - any laboratory 527 1 hood. 2 Q. Not having been in a lab in many years and, 3 perhaps, jurors not knowing what you mean by the term, 4 could you just elaborate a little bit on what the hood 5 does and accomplishes? 6 A. Well, a hood is a ventilation system in 7 which - with an open door - enclosed all the way 8 around except for the door. And sometimes you'd use 9 leave - even leave the door down and look what you're 10 doing and - through the glass. But there's airflow 11 passing through all the time so that the flow is away 12 from the person. 13 Q. Okay. And then any of the vapors that come 14 off of the volatile material are exhausted up through 15 the system - 16 A. Yes. 17 Q. -- safely? Okay. All right, sir. Could 18 you continue with your - 19 A. That was the essence of our procedures. You 20 have to look at the possible types of exposure when 21 you're handling a material and take precautions to 22 avoid or minimize it. 23 Q. And if you were working with something where 24 dust could be an inhalation hazard, I suppose you'd 25 also be using the exhaust ventilation system with the 528 1 hood. 2 A. That was -- Anything like that would be 3 handled in a hood. 4 Q. Would you allow people to eat in the 5 laboratory? 6 A. No. We did not. 7 Q. And why would that be? Why would you not 8 want that, sir? 9 A. You never know what contamination might have 10 occurred. 11 Q. Something could get on the food and - 12 A. It was just a precautionary measure. 13 Q. Okay. Intended to keep people from 14 ingesting any of the possible toxic materials that 15 might have been in the lab, right? 16 A. Yes. 17 MR. PIERCE: Objection to the 18 form. 19 A. Or if you would happen to have your hands 20 contaminated and you didn't know it, it could 21 contaminate your food. 22 Q. All right, sir. What about protection 23 from - other protection from ingesting any toxic 24 material? That would be another way to get it into 25 the body, I suppose. What would you do for that? 529 1 A. Well, with respect to industrial chemicals, 2 ingestion is a very rare type of exposure. 3 Q. Okay. Did the people working in the lab 4 wear any kind of special protective clothing or gloves 5 or that sort of thing? 6 A. We did not unless there was something very 7 special because as you -- If you handle an unknown 8 material, you do not know necessarily or you don't 9 know, period, whether it might deteriorate a 10 protective piece of equipment and thereby cause an 11 exposure that people didn't realize that they had. 12 Protective equipment is only for emergency purposes or 13 for very special applications. 14 Q. But your laboratory technicians would at 15 least be wearing some sort of lab coat, wouldn't they? 16 A. We'd wear a lab coat, yes. 17 Q. Okay. And I guess those lab clothes were 18 laundered at the plant and not taken home - 19 A. That's right. 20 Q. -- to clean. Okay. Did you have any kind 21 of respiratory protective equipment that you'd use in 22 the lab when working with these toxic materials or 23 suspected toxic materials? 24 A. I don't recollect using respiratory 25 protection in our lab. 530 1 Q. You mentioned having had no lost-time 2 injuries in your lab force or staff over the years. 3 What did you mean by "lost-time injury"? 4 A. An injury that prevents someone from coming 5 to work. 6 Q. Okay. I suppose over the years you would 7 have had some injuries and exposures that occurred 8 that didn't require people to take off time from work, 9 though. 10 A. I think we had one or two. 11 Q. So, over all those years you were able to 12 limit the exposures - the unintended exposures - to 13 just one or two? 14 MR. PIERCE: Objection to the 15 form. He did not speak about 16 unintended exposures. 17 Q. Well, would you say the exposures were 18 intended, Dr. Rowe, the one or two? Is that what you 19 meant? 20 A. I'm sorry. I can't hear you. 21 Q. Well, you said you had one or two - 22 MR. PIERCE: It did not deal with 23 exposures. 24 Q. You said you had one or two exposures over 25 the years where people didn't have to take off time 531 1 from work. 2 MR. PIERCE: Objection to the 3 form, to the mischaracterization of the 4 earlier testimony. 5 (By Mr. Blanks) 6 Q. Did I misstate what you told us? 7 A. No. I don't think -- I was just trying 8 to -- The only one that was ever serious was a - was a 9 person who was handling a bottle and there was -- It 10 was contaminated around the neck, and he got his 11 fingers in it. And before he got burnt, he had sore 12 fingers. 13 Q. Yes, sir. Okay. And my - 14 A. We had that happen a couple - two or three 15 times but very rarely. 16 Q. So, over a, roughly, 30-year period when you 17 were working with or supervising the laboratory, the 18 toxicology lab at Dow, handling a large number of 19 materials of even extreme toxicity, you were able to 20 control the exposures to these materials to just a few 21 incidents? Is that the case? 22 A. I -- That -- Fair representation. 23 Q. Okay. And what do you attribute that very 24 good rate of exposure or controlling exposures to, 25 Dr. Rowe? How do you account for that outstanding 532 1 record of protecting the people working in the lab? 2 A. I'd have to think it was the training that 3 we gave our people and our surveillance of it. 4 Q. And their use of the proper procedures as 5 they were taught to do, correct? 6 A. I guess that would be the answer. 7 Q. Okay. Do you know, sir, approximately how 8 many cases of occupational diseases at Dow that you 9 ever learned of? 10 A. I don't know. 11 Q. Do you recall, Dr. Rowe, that you ever 12 became aware of any cases of occupational disease 13 diseases among Dow workers? 14 A. Yes. 15 Q. Would that have been in the Sixties or 16 later? 17 A. I don't know the time frame. 18 Q. What kind of occupational diseases did you 19 learn of? 20 A. The only ones I recall were dermatological 21 problems. 22 Q. Would reports of these come to you from the 23 medical department, sir? 24 A. Well, I don't know whether they came 25 initially from the medical department or whether 533 1 somebody was in trouble called up to see what - what 2 was going on, if we knew anything about it. 3 Q. Okay. 4 A. It could have come from any place. 5 Q. Was it the routine or the policy at Dow to 6 inform the industrial hygiene department about 7 instances of occupational disease in the workers or 8 former employees? 9 MR. PIERCE: At any time during 10 Dr. Rowe's career? 11 MR. BLANKS: Any time. 12 A. I'm not aware of any fixed policy, but I 13 would expect it to have been general practice. 14 (By Mr. Blanks) 15 Q. Would you agree that that is an important 16 thing for industrial hygienists to know of, whether or 17 not there have been occupational diseases develop in 18 the work force? 19 A. Well, certainly. 20 Q. Hasn't Dow recognized since the - since the 21 Forties at least that people working in heavy dust 22 concentrations should wear respiratory protection, 23 Dr. Rowe? 24 A. Would you restate that. 25 Q. Yes, sir. I asked you, has not Dow 534 1 recognized since the early Forties at least that 2 workers working in heavy dust concentrations should 3 wear respiratory protection? 4 MR. PIERCE: I'd like to object to 5 the form of the question based on the 6 ambiguity of the term "heavy" and not 7 knowing what you consider heavy. 8 A. Well, the use of respiratory protection, as 9 a general practice, was for purposes of emergency 10 situations or those which were temporarily awaiting 11 engineering change or if something was going to be 12 done once or something of this nature where it would 13 not be practical to spend weeks designing something if 14 it were going to be a one short time potential 15 exposure. Otherwise, basically it was as an emergency 16 situation when we used protection. 17 Q. Okay. And a situation that was a long-term 18 or repeat condition that generated heavy dust such 19 that respirators would be mandatory would be a 20 situation that called out for engineering controls or 21 at least the consideration of them to reduce that dust 22 level down, wouldn't it? 23 A. Well, I just tried to say that if this was a 24 long-term effect or problem, our policy generally, as 25 far as I know, was not to use protective devices. 535 I Q. But to solve the problem - 2 A. Solve the problem. 3 Q. Okay. But my originalquestion, Dr. Rowe, 4 was: Don't you agree that even back in the early 5 1940's that Dow recognized that people working where 6 there are heavy fumes or dust should be required to 7 wear respirators to protect them? 8 MR. PIERCE: Asked and answered. 9 A. I don't know. 10 Q. Do you know if there ever came to be a time II when Dow recognized that need? 12 A. I don't know. 13 Q. Certainly you would agree that that would be 14 appropriate if one were working where there was heavy 15 fumes or dust that you should wear respiratory 16 protection. 17 MR. PIERCE: I think Dr. Rowe has 18 explained his position on this in great 19 detail. 20 But go ahead. 21 A. I would say it would determine - it would be 22 more likely to be influenced by the nature of the 23 dust. 24 Q. What does -- As a toxicologist, sir, what 25 does "heavy dust" mean to you? 536 1 A. I don't know the term. 2 Q. All right. Would the term describing 3 "heavy fumes or dust" mean anything to you? 4 A. I don't know the term. 5 Q. Makes no sense? 6 A. I don't know. 7 Q. Well, I - 8 A. I don't know what a heavy dust is. 9 Q. Okay. It's just too vague to tell you 10 anything as a toxicologist or a scientist what's being 11 described: is that what you're saying? 12 A. I've never used the term. I don't know what 13 people, if they wrote it, would mean - 14 Q. Okay. 15 A. -- unless they described it in much more 16 detail. 17 Q. All right, sir. During the 1940's could you 18 tell us who at Dow where you worked had authority to 19 decide whether or not there should be testing for 20 toxic dust in the work environment? 21 A. I don't know. 22 Q. How about inthe Fifties, do you know who 23 would have had authority to make that decision? 24 A. Well, if an industrialhygienist observed 25 this, he would - he could, well, make that suggestion. 537 1 Q. All right, sir. And that would certainly 2 have been true for the industrial hygienist even in 3 the 1960's, that he would have had the authority to go 4 out and do monitoring, if he cared to, for asbestos 5 dust or silica dust or any other kind of dust? 6 A. He would be expected to initiate appropriate 7 action, I think. 8 Q. Does that mean that the industrial hygienist 9 also, say, in the Fifties would have had the authority 10 to require that workers potentially exposed to a 11 pneumoconiosis-causing dust should be 12 protected - should be given respirators, for example? 13 MR. PIERCE: Are we going to have 14 a level here of exposure or just the 15 vague term "exposure"? 16 I object to the form for 17 vagueness. 18 A. I guess I'd like to have you repeat the 19 question, please. 20 Q. Yes, sir. I was wondering if your 21 industrial hygienist, beginning in 1948 when you first 22 had one, would have had the authority to require that 23 workers potentially exposed to 24 pneumoconiosis-producing dust be given respiratory 25 protection. 538 1 MR. PIERCE: Continue the 2 objection. 3 A. No. 4 Q. Who would have had that authority? 5 A. The plant manager. 6 Q. Okay. Would the industrial hygienist have 7 had the authority to require that workers potentially 8 exposed to pneumoconiosis-producing dust be given 9 training about the hazards posed by such dust in the 10 1950's? 11 A. No. 12 Q. Would that have been the plant manager's 13 authority - 14 A. Yes. 15 Q. -- again? And who would have had the 16 authority, Dr. Rowe, to require that workers 17 potentially exposed to pneumoconiosis-producing dust 18 like asbestos or silica be put under a medical 19 surveillance or medical monitoring program in the 20 1950's? 21 MR. PIERCE: Objection to the 22 form; compound question. 23 A. Medicaldepartment. 24 Q. Okay. Now, would that be the corporate 25 medical department or the medical department at the 539 1 plant level who would have had that authority? 2 A. Either one, I believe. 3 Q. Dr. Rowe, when you were working as a 4 toxicologist, could you do testing on any material 5 that you wanted to investigate; or did someone above 6 you in management have to approve the testing program? 7 MR. PIERCE: Objection to the 8 form; compound question. 9 A. That would depend upon the magnitude of the 10 program. 11 Q. You mean how much it might likely cost to 12 do? 13 A. And whether or not the facilities could be 14 should be used for that rather than something else. 15 Q. Who would make those kind of decisions? I 16 mean, where did the responsibility lie? 17 A. It was more or less a joint responsibility. 18 Q. Between the toxicologist and the management? 19 A. Or the person responsible for that 20 particular product or manufacturing process or what... 21 Q. Does that mean, sir, that the group in Dow 22 that had the process in which the material was being 23 used or produced would have to approve the cost of 24 doing the toxicology testing on the material before 25 you could undertake it? 540 1 A. The answer is really "yes and no." 2 Q. Okay. Could you explain? 3 A. If it were -- If we felt that it was some 4 particular situation that we wished to explore, we had 5 a budget at our discretion that we could use and do 6 that. If it were a major project such as a potential 7 foods additive or major product, the product 8 department was responsible for budgeting that work. 9 And those things would be worked out in joint 10 conversation and put into effect, and that would be 11 undertaken at the time. And at times if there were - 12 It would be dependent upon the capacity of the 13 laboratory to handle it. If it was tied up and it 14 couldn't do it, there'd be another way to do it. 15 Q. Okay. And another way to do it might be to 16 contract it out to an outside lab - 17 A. That's true. 18 Q. Can you recall, sir, being refused authority 19 or a budget to investigate some materials that you 20 toxicologists felt ought to be checked out? 21 A. The very first one that I had anything to do 22 with was a study of methyl bromide. 23 Q. Was that one where you were denied authority 24 or funding to proceed? 25 A. No. It was in the early days when - before 541 1 we had as big a laboratory as we had and we had - were 2 developing the capacity to do inhalation work. And 3 that was a material that we chose to study. 4 Q. Can you think of any that you proposed to 5 study where you were told, "No, you can't do that," 6 or, "No, we're not" - "we don't want to pay for that"? 7 A. That was a very rare occasion, if ever. If 8 we felt that there was a serious need where we had no 9 individual authority, we could take our case to higher 10 authority and get authorization to proceed. But I 11 don't know of anything -- I can't think of anything 12 where we were told that we couldn't do it. 13 Q. But you did have access to higher levels of 14 management if you scientists thought that there was a 15 potential problem that ought to be investigated: is 16 that the case? 17 A. That's right. 18 Q. Was that always the case at Dow during your 19 years - 20 A. Always the case. 21 Q. So, there's no question, then, Dr. Rowe, 22 that, as far as the toxicology department was 23 concerned, if there was a serious matter to be 24 investigated you always had or could get the resources 25 to do the investigation or have it done? 542 1 A. I do not recall any that that - other 2 than -- I do not recall any situations where that was 3 not possible to do. 4 Q. Okay. Do you believe, Dr. Rowe, that a man 5 has to have a massive severe long-term exposure to 6 asbestos in order to get an asbestos-related disease? 7 A. I don't know. 8 Q. Did you ever have an opinion or an 9 understanding about that? 10 A. I -- I have opinions, but I don't know. 11 Q. What would be your opinion about that? 12 MR. PIERCE: I'd like to just 13 interject at this time, so that we all 14 recall, that the witness is here as a 15 fact witness. He is not here in an 16 expert capacity. He is not here to 17 give opinion testimony. 18 I'm not going to prevent that from 19 happening, but I'd like you just to 20 take note of that so - and to try to 21 move away from areas outside of his 22 purpose here. 23 Q. Well, let me 24 MR. PIERCE: Go ahead. 25 Q. Let me make that easier. Could you tell us, 543 1 sir, what your opinion was about the severity and 2 duration of exposure to asbestos required to cause 3 asbestosis during any of the years you worked for Dow? 4 A. Are you asking again for my opinion? 5 Q. Yes, sir. 6 A. I do not know whether it always takes a long 7 duration exposure or whether a few massive or a single 8 massive exposure to do this. It depends upon the 9 ability of the lungs to clear material. It depends 10 upon a lot of environmental situation -- I do not 11 know. I'm not an expert in toxicology of asbestos. 12 Q. All right, sir. I understand you say you do 13 not know. I was wondering, though, what was your 14 opinion on that during any of the years that you were 15 working for Dow either as a toxicologist or as the man 16 in charge of industrial hygiene. 17 MR. PIERCE: I'd like to once 18 again interpose an objection and remind 19 you that you went over this at quite 20 some length and Dr. Rowe mentioned 21 several times yesterday that that is 22 not a field in which he feels 23 comfortable or has an expertise in. 24 But go ahead. 25 MR. ALMQUIST: And I want to 544 1 impose another objection that that 2 question was just asked and answered by 3 the doctor when he said he didn't know. 4 Q. If you have an opinion, sir, or had an 5 opinion back during that time frame, that's what I'd 6 like you to express. 7 A. My opinion with respect to things of that 8 nature was that if they were maintained within 9 Government regulations or Government recommendations 10 that that was an adequate precautionary measure. 11 Q. Okay. Have you changed your view about that 12 over the last 15 years since you've left Dow? 13 A. I have changed my opinion perhaps sometimes 14 on things that I know something about; otherwise, I do 15 not argue the issue. 16 Q. Was that -- Was that a "yes" or a "no"? 17 MR. PIERCE: It was an answer to 18 your question. 19 A. I don't know. I don't know that I can 20 answer your question "yes" or "no." 21 Q. Do you know, Dr. Rowe, that Dow employees 22 have in fact - some of them have developed asbestosis? 23 A. I don't know that. 24 Q. Had you ever been -- Have you ever heard 25 that from anyone at Dow? 545 1 A. No. I don't believe I have. 2 Q. Was there someone at Dow, sir, that was more 3 knowledgeable than you on mineral dusts such as 4 asbestos or silica during the years you worked there? 5 A. I don't know. 6 Q. Do you think there was anyone at Dow during 7 the years you worked there who was knowledgeable about 8 the health hazards of mineral dust like silica or 9 asbestos? 10 A. Well, I think we're all somewhat familiar 11 with it from the stand -- But we did not do any 12 research ourselves on this with respect to 13 occupational disease. We -- Through the medical 14 department, my understanding was that they were 15 surveying the people by - with medical procedures. 16 And outside of that, I do not know. 17 Q. Okay. You can't direct us to any person 18 from your - that you worked with at Dow who you 19 believe is still living whom you regarded as having 20 more knowledge about asbestos or silica health hazards 21 than you? 22 A. Well, I - I have said before Harold Hoyle 23 was the person most knowledgeable, that I know of. 24 Q. All right, sir. Can you tell us, Dr. Rowe, 25 about what kind of warnings Dow gave its own workers 546 1 potentially exposed to asbestos about the health 2 hazards of asbestos during the Forties? 3 A. I don't know. 4 MR. PIERCE: I'm going to object 5 to the form of the question. It 6 assumes facts not in evidence. 7 A. I don't -- I don't -- I don't recall. I 8 don't -- I don't know. 9 Q. Would that -- Would you recall for what was 10 done to warn these workers during the Fifties? 11 A. No. 12 Q. Or the Sixties? 13 A. No. 14 Q. How about the Seventies? 15 A. No. 16 Q. How about workers potentially exposed to 17 free silica in the air? 18 MR. PIERCE: Objection to the form 19 of the question, if that is a question. 20 MR. BLANKS: Well, there was a 21 comma there; and I was in mid clause. 22 MR. PIERCE: I'm sorry to 23 interrupt you at a comma. 24 (By Mr. Blanks) 25 Q. Do you know, sir, if Dow gave any warnings 547 1 to workers potentially exposed to free silica - 2 MR. PIERCE: Objection. 3 Q. -- at their plants? 4 A. I do not know, personally. 5 Q. Okay. 6 A. I would assume that that was the case, but I 7 do not know. 8 Q. You would expect that that would have been 9 done in the Forties? 10 A. Yes. 11 Q. Would you expect that warnings would have 12 been given to workers potentially exposed to asbestos 13 about its health hazards in the Forties? 14 MR. PIERCE: Objection. 15 A. I would expect so. 16 Just a minute. In the Forties? 17 Q. Yes, sir. 18 A. I'm not sure. 19 Q. How about in the Fifties? 20 A. I don't know. 21 Q. Did the folks working in your laboratories 22 who handled asbestos get any kind of warnings about 23 its health hazards? 24 A. Not to my knowledge. 25 Q. As you don't know about any warnings given 548 1 to Dow employees potentially exposed to asbestos or 2 silica, I wonder - you probably wouldn't know about 3 any warnings that might have been given to 4 contractors. 5 A. I do -- I have no knowledge. 6 Q. Okay. Did you, yourself, ever recommend, 7 Dr. Rowe, that warnings and training be given to 8 workers potentially exposed to asbestos at Dow? 9 A. I don't recall any. 10 Q. How about exposures - possible exposures 11 to free silica, did you ever recommend that warnings 12 be given about that possibility? 13 A. Not that I recall. 14 Q. Did Dow tell workers at its plants during 15 any years, Dr. Rowe, that exposures below the 16 guidelines were safe? 17 A. I don't -- I can't answer that. I don't 18 know. 19 Q. Do you know who, if anyone, ever recommended 20 that all of the asbestos insulation in the Dow plant 21 should be removed? 22 MR. PIERCE: Objection to the 23 form; assumes facts not in evidence. 24 A. I don't know. 25 Q. Do you know whether any effort was begun 549 1 while you were at Dow to, in fact, remove all the 2 asbestos-containing insulation? 3 A. I didn't -- I do not know. 4 Q. Dr. Rowe, do you think that it would be 5 appropriate to tell workers being exposed below the 6 guideline levels that it was safe for them to work in 7 airborne dust at those concentrations? 8 MR. PIERCE: I'm going to object 9 on ambiguity. 10 But go ahead. 11 A. I -- I don't know how much was told in that 12 respect. My feeling was that if the exposure levels 13 were within so-called acceptable levels, the issue was 14 not pursued. 15 Q. But do you think that it would have been 16 appropriate or proper to tell people working at below 17 or near and below the guideline levels that they were, 18 in fact, safe from any risk of disease? 19 MR. PIERCE: Objection to the form 20 of the question. It's compound and 21 also asked and answered. 22 A. I think it's always desirable to... 23 MR. BLANKS: I see Mr. Pierce has 24 yanked the microphone out and... 25 THE WITNESS: Something came 550 1 loose. I don't know how it's supposed 2 to go on there. 3 MR. PIERCE: If there is a record, 4 for the record, certainly Mr. Pierce 5 didn't do it. 6 THE WITNESS: Thank you. 7 MR. BLANKS: Supposing counsel 8 must have done it from over here. 9 (By Mr. Blanks) 10 Q. Sorry, Dr. Rowe. You were saying that 11 you... 12 A. Excuse me. 13 Q. You were in the middle of an answer when you 14 discovered the microphone dangling. 15 MR. PIERCE: Perhaps for 16 everyone's -- Could we reread the 17 question? 18 THE WITNESS: Maybe so. 19 THE REPORTER: "QUESTION: But do 20 you think that it would have been 21 appropriate or proper to tell people 22 working at below or near and below the 23 guideline levels that they were, in 24 fact, safe from any risk of disease?" 25 And then there was an objection. 551 1 MR. PIERCE: "Objection to the 2 form of the question. It's compound 3 and also asked and answered. 4 'ANSWER: I think it's always 5 desirable to... 6 And then... 7 MR. PIERCE: And then the 8 microphone. 9 THE REPORTER: Right. 10 A. I think it's always desirable to inform 11 people of potential hazards. In the earlier years I 12 did not think that was necessarily done as thoroughly 13 as it has in the last maybe 20 years. 14 (By Mr. Blanks) 15 Q. Okay. Do you recall, Dr. Rowe, whether or 16 not contractors from time to time would do work in 17 your laboratory areas? 18 A. I had nothing to do with contractors. I 19 don't know what they were doing. 20 Q. Well, did you ever see non-Dow employees 21 doing maintenance work or remodeling work or any kind 22 of building work in your laboratories? 23 A. Not that I recall. 24 Q. So, if any of that work was done, it would 25 have been done by Dow employees? 552 1 A. I don't know. I say I don't know. There 2 may have contractors that I didn't know they were 3 contractors. 4 Q. Well, let me ask you this: If people from 5 outside the lab came in to do some work, whether it 6 was to modify some plumbing or paint the ceilings or 7 what have you, did they get any kind of warning or 8 instructions from folks in the lab about potential 9 hazards in the lab - in the lab environment? 10 A. I can't think of any particular situation 11 where anything like that would have been required. 12 Q. You mean if somebody were coming in to do 13 some repair work or some construction work, all of the 14 laboratory materials and the toxic materials would be 15 put away and out of the way safe where there wouldn't 16 be any possibility of exposure? 17 A. We certainly wouldn't leave them out where 18 they were likely to be encountered. 19 Q. Okay. Do you recall, sir, from any of your 20 biochemical medical safety meetings whether there were 21 discussions about the health hazards of asbestos or 22 silica or benzene that might be encountered in Dow 23 premises? 24 MR. PIERCE: At any time? 25 MR. BLANKS: Any time. 553 1 A. Well, you mentioned a number of compounds. 2 And I'm sure that many compounds were discussed, but I 3 don't remember which ones. 4 (By Mr. Blanks) 5 Q. Would you remember asbestos being a topic? 6 A. I do not remember discussing asbestos. 7 Q. How about free silica dust? 8 A. I don't remember silica dust. 9 Q. What about benzene? 10 A. Yes. 11 Q. What time frame would that have been in? 12 A. I don't remember. 13 Q. Would you agree, Dr. Rowe, that when a 14 when you have a pneumoconiosis-producing dust in the 15 air in a worker's breathing zone that he will, in 16 fact, inhale some of that dust so long as he 17 breathes? 18 MS. KETAI: Objection. 19 THE REPORTER: Excuse me. 20 MS. KETAI: Objection; calls for 21 speculation, misstating facts not in 22 evidence. 23 A. I guess one would have to assume that if 24 it's in the air that he's breathing he would have 25 some. 554 1 Q. And wouldn't you agree that the longer the 2 man works in an asbestos or silica dust environment 3 then the more dust or fibers he would breathe in? 4 MR. PIERCE: Objection to the 5 form. Some of the terminology used is 6 vague and ambiguous. 7 MR. BLANKS: Like "environment"? 8 MR. PIERCE: You want me to phrase 9 the question for you? That's not my 10 purpose here. But you should -- Well, 11 I'm sure you're quite adequate and 12 capable of phrasing aquestion 13 properly. 14 MR. BLANKS: Object to the 15 compliments. 16 (By Mr. Blanks) 17 Q. Let's try again. Yes, sir. Dr. Rowe, 18 wouldn't you agree that the longer a man works in a 19 in an environment where there is airborne asbestos or 20 silica in his breathing zone, then the more of that 21 particulate he is actually going to breathe into his 22 lungs? 23 MR. PIERCE: I am going to 24 continue the objection. I think that 25 question is unintelligible as asked. 555 1 It makes assumptions such as that there 2 is any place in which there are no such 3 fibers and suggests by implication that 4 we're dealing with certain level when 5 no levels are mentioned within the 6 question, making the question almost 7 impossible to answer. 8 But go ahead. 9 A. Well, certainly the - a more prolonged 10 exposure to a given condition is - would be expected 11 to produce a greater accumulation, providing that the 12 level is higher than the clearance potential of the 13 respiratory tract, if you're talking about dust. And 14 I don't know just where that comes, but the 15 respiratory tract does have a capability - capacity to 16 clear itself of foreign bodies. 17 (By Mr. Blanks) 18 Q. To some extent. 19 A. That's the best answer I could give you. 20 Q. And, likewise, the higher the concentration 21 in the air of the respirable asbestos or silica, then 22 the more fiber or dust the man would be breathing in, 23 correct? 24 A. Well, I'd suspect that that would depend 25 somewhat on particle size; but generally that's a 556 1 safe - we'd have to - we'd have to assume that that 2 was correct. 3 Q. And wouldn't you agree that even today it's 4 not known exactly how much asbestos fiber a man can 5 inhale and still be a hundred percent free of risk for 6 an asbestos-related disease? 7 A. I don't know. 8 Q. Certainly when you were with Dow, you didn't 9 know just how much asbestos fiber one could breathe 10 and be a hundred percent free of the risk of an 11 asbestos -- 12 A. I don't know. 13 Q. -- related disease, did you, sir? 14 A. I don't know. 15 Q. You don't know whether you knew when you 16 were at Dow? 17 MR. PIERCE: I think we've spent 18 enough time - 19 A. I don't -- I don't - 20 MR. PIERCE: Excuse me. Let me 21 just interpose this objection. This 22 has been asked and answered, plus you 23 have investigated both today and 24 yesterday the state of knowledge in 25 respect to asbestos of this particular 557 1 witness. 2 But go ahead. 3 A. I guess I'd have to ask you to repeat. 4 Q. I think I asked you isn't it true that when 5 you were with Dow you did not know then nor did Dow 6 know exactly how much asbestos fiber a man could 7 breathe and inhale and still remain a hundred percent 8 free of the risk of getting an occupational disease 9 from it. 10 MR. PIERCE: I'd like to now add 11 to the objection to what Dow did or 12 did not know. 13 But go ahead and answer the 14 question. 15 A. I don't know. 16 Q. Isn't it true, Dr. Rowe, that during the 17 late Thirties, the Forties, the Fifties, the Sixties, 18 even into the Seventies while you were at Dow that Dow 19 had no scientifically documented conclusive findings 20 that exposures at any guideline level to asbestos dust 21 would be a hundred percent safe and free of risk of 22 disease? Did it? 23 MR. PIERCE: I'm going to object 24 to the form. You're asking this 25 witness as to what Dow knew rather than 558 1 what he, V. K. Rowe, knew. 2 A. I don't know. 3 Q. That is to say you know of no such 4 scientifically documented conclusive evidence that 5 exposures at any guideline level would be a hundred 6 percent safe? 7 A. I don't know. 8 Q. Would that also be true as regards silica 9 exposures at any threshold limit value or guideline 10 level? 11 A. I don't know. 12 MR. PIERCE: Might what also be 13 true? 14 Q. That you don't know of any scientifically 15 documented conclusive evidence that exposures at the 16 guideline levels to silica are a hundred percent free 17 of the risk of occupational disease. 18 A. I don't. 19 MR. ALMQUIST: We've been going 20 about an hour. 21 MR. BLANKS: Okay. 22 MR. ALMQUIST: Let's take a 23 short... 24 (AT THIS TIME A BRIEF RECESS WAS 25 TAKEN, AND THE PROCEEDINGS THEREAFTER 559 1 RESUMED ASFOLLOWS:) 2 (By Mr. Blanks) 3 Q. Dr. Rowe, in your work at Dow can you tell 4 us how many cases there were that you did have 5 scientifically documented conclusive findings that 6 exposures at a T.L.V. or guideline level were 7 100 percent safe? 8 MR. PIERCE: I'm going to object 9 to the ambiguity in that question 10 and to the premise that you could 11 somehow cull a negative into the 12 terms of nondisease. 13 But go ahead and answer it to the 14 best of your ability. 15 A. I don't think you ever have a situation that 16 is a hundred percent safe. 17 Q. So, is that to say, then, that for the 18 chemicals and materials that people worked with at Dow 19 that could cause disease that, as far as you were 20 concerned, you could never know that you were a 21 hundred percent free of risk in handling those 22 materials? 23 MR. PIERCE: I'm going to object 24 to the question as being ambiguous. 25 You mean only materials at Dow or 560 1 materials - all chemical materials or 2 what? 3 I find the question ambiguous, but 4 go ahead and answer it. 5 MR. ALMQUIST: It's also overly 6 broad. 7 A. I'll answer the question this way: In no 8 circumstance - no circumstance - are you a hundred 9 percent safe. You're not a hundred percent safe 10 sitting here. 11 Q. So, in no circumstance of handling an 12 industrial material is the worker a hundred percent 13 safe, in your experience? 14 MR. PIERCE: Asked and answered. 15 A. Philosophically there is no such thing as 16 absolute safety. 17 Q. Okay. Were there any materials that were 18 used at Dow premises over the years for which you had 19 scientifically documented conclusive findings that a 20 particular exposure level would cause disease? 21 A. Would you please restate that. 22 Q. Yes, sir. We've gone to the opposite 23 extreme here. Can you recall any materials that were 24 used at Dow during the years you were there for which 25 you had scientifically documented conclusive findings 561 1 that a particular exposure level to that material 2 would cause occupational disease? 3 A. Yes. I think so. 4 Q. What would some of those be? 5 A. I don't recall, but certainly dermatitis was 6 one of the situations that is an occupational 7 disease. Some people are more susceptible to 8 irritation than others. We've had situations where 9 we've had dermatitis. We've had people ill from 10 exposures. As I mentioned earlier, carbon 11 tetrachloride. We had people that were ill. 12 Q. So, those would be situations where you 13 actually had the scientifically documented conclusive 14 findings that a particular exposure level would result 15 in disease? 16 MR. PIERCE: I'd like to object to 17 the form. The question has been asked 18 and answered. 19 MR. ALMQUIST: And I also object 20 to the form because it doesn't specify 21 whether you're talking about it caused 22 disease in a specific individual or 23 every individual exposed at that 24 level. 25 A. I have trouble with your word "disease." I 562 1 would say "ill effects," "adverse effects." 2 Q. Would you call, let's say, asbestos-related 3 lung cancer just an adverse effect of exposure to 4 asbestos? 5 A. I would call it "an adverse effect." 6 Q. Some adverse effects can be fatal, can't 7 they? 8 A. You'll have to describe an adverse - what's 9 the character of the adverse effect. But any adverse 10 effect is an effect. It may be severe. It may be 11 mild. It may be transitory. 12 Q. Or terminal. 13 MR. PIERCE: You want to let 14 Dr. Rowe answer his question, please? 15 A. I guess it's the connotation of words that 16 bothers me. 17 Q. All right, sir. Isn't it a little bit 18 euphemistic to speak of a terminal disease as being 19 merely an adverse effect? 20 MR. PIERCE: Objection to the 21 form; argumentative. 22 A. Not if it's characterized. 23 Q. Characterized how? 24 A. Well, you define it as an adverse effect. 25 Well, then how adverse is it? 563 1 Q. I see. Okay. Part of your job as a 2 toxicologist was to recommend to management what to do 3 about materials' health hazards. Isn't that true? 4 A. Yes. 5 Q. Did you believe, Dr. Rowe, as a toxicologist 6 that you had to wait for scientifically documented 7 conclusive findings before you should make a 8 recommendation to management? 9 A. I don't know that we ever did that. 10 Q. What would be a sufficient level of 11 information or confidence to cause you to make 12 recommendations to management about health effects or 13 precautions to be used with materials at Dow? 14 A. We made recommendations to management all 15 the time on the basis of our toxicological 16 investigations. 17 Q. Sometimes you'd do it on the basis of 18 preliminary Class I-type investigation. 19 A. Certainly. 20 Q. Sometimes those studies would be followed by 21 more intensive investigations? 22 A. That's right. 23 Q. But it wasn't the practice to wait until you 24 had absolutely conclusive evidence about the harmful 25 effects of a material before you would pass that on to 564 1 the management or people in the plants, was it? 2 A. Of course not. 3 Q. Do you think that would be improper from a 4 scientific standpoint to delay conveying information 5 about hazards until you had conclusive proof? 6 MR. PIERCE: Object to the form; 7 ambiguous and vague. 8 A. I didn't say that we waited till we had 9 conclusive proof. I said if we had information that 10 suggested an adverse effect might develop with new 11 materials and our toxicological studies indicated that 12 we should control exposures to such level or if we 13 didn't have quantitative data to the best of our - our 14 best guess. 15 Q. I didn't mean to imply that you did await 16 conclusive proof. I was meaning -- I'm sorry. I 17 apologize. I was meaning to ask you whether you think 18 it's reasonable from a scientific standpoint to wait 19 for conclusive proof about health hazards before 20 conveying the information you do have that could help 21 to protect your company, your employees, people 22 working in your plants. That was the question. Would 23 it be proper to delay - 24 MR. PIERCE: I'd like to continue 25 the objection. Especially terminology 565 1 used like "proper," scientifically," 2 and "conclusive proof" are ambiguous 3 in terms and very difficult or 4 impossible to answer, making the 5 question unintelligible to answer. 6 But go ahead, please, sir. 7 A. Our whole purpose in our - in our work was 8 to prevent occupational disease from occurring. 9 Q. Yes, sir? 10 MR. PIERCE: Is there a question? 11 Is "Yes, sir" a question? 12 A. Isn't that the answer to your question? We 13 did not wait until somebody was laying flat out on the 14 slab before we did anything. 15 Q. Okay. And you don't do the best job of 16 preventing the occupational diseases by waiting until 17 you have scientifically documented conclusive findings 18 before you react, do you, sir? 19 MR. PIERCE: I'd like to object 20 again to the continuing use of 21 "scientifically "conclusive" or 22 whatever findings they are since 23 they're not amenable to 24 interpretation. 25 A. Well, that would -- I would have to 566 1 interpret your statement there as indicating that 2 that we did not practice preventive measures and alert 3 medical people and others as to the hazards as best we 4 could judge them. We certainly didn't expose people 5 and then go back to the animal lab to find out except 6 in rare systems or situations where something 7 unexpected happened. And then we would go back to the 8 laboratory and try to find out why and how come. But 9 our charge was to prevent occupational health hazards. 10 Q. And you would best accomplish that charge by 11 responding to perceived hazards as soon as you had 12 some information to work with as opposed to waiting 13 until you had conclusive findings? That's the 14 question, Dr. Rowe. 15 MR. PIERCE: Object to the form. 16 Completely vague and ambiguous unless 17 you spell out what you mean by "some 18 findings. 19 A. I guess -- May I ask, what do you mean by 20 "conclusive findings"? 21 Q. Well, I suppose something that would be 22 scientifically documented as to which you, as a 23 scientist, would find it to be conclusive. 24 A. Well, that's looking at things after the 25 fact. We're talking about preempting these things in 567 1 a preventive mode. 2 Q. That wasyour approach? 3 A. Yes. 4 Q. That was, you still believe, the proper 5 approach? 6 A. Yes. 7 Q. Prevent theproblems before you get to the 8 point where you have many documented conclusive cases 9 of occupational disease that prove there was a 10 problem. Would you agree with that? 11 A. With our best judgment, we tried to achieve 12 that end. 13 Q. All right, sir. You said in our discussions 14 yesterday that people you refer to as "friendly 15 scientists" work with facts, not fantasy. Do you 16 remember that? 17 A. Yes. 18 Q. How many facts did Dow need before it felt 19 compelled to warn people working in its plants about 20 their risk to occupational health hazards like 21 asbestos or silica? 22 MR. PIERCE: Objection to the 23 form; ambiguous and vague and asks for 24 Dr. Rowe to present the thinking of 25 The Dow Chemical Company. 568 1 A. Well, certainly you have to have some facts 2 before you can predict. 3 Q. All right, sir. Would you agree that 4 somebody seeking to prevent occupational disease in a 5 workplace ought to do some investigation to obtain 6 facts about suspect materials used in the plant the 7 way that you did in the tox. lab and in your other 8 work? 9 A. I don't know any other way to approach it. 10 Q. Okay. And obtaining those facts that will 11 allow you to predict hazards would include, as we 12 discussed yesterday, going to the published literature 13 for the - to obtain the experience of others as 14 reported in professional journals, correct? 15 A. To look at the literature, if there's any 16 if it's available. 17 Q. And that if you failed to go and investigate 18 the literature, knowing that you had a suspected 19 material in your plant where people could be or were 20 being exposed to it would not be a responsible 21 approach, would it, sir? 22 MR. PIERCE: Objection to the 23 form. That's too vague. 24 In any instance under any 25 circumstance? 569 1 A. I don't -- I don't think anyone can be 2 totally informed about the literature. Particularly 3 in the days past, literature was hard to find and was 4 not accessible like it is today. 5 Q. There weren't computer data bases to go to 6 and such as that? 7 A. We didn't have data bases to go to - 8 Q. Okay. 9 A. -- and computerized information centers and 10 so forth. 11 Q. You would have gone to the - probably to the 12 trade journals, your professional journals, for your 13 own professional associations and the medical 14 associations, - 15 MR. PIERCE: Objection to the 16 form; leading. 17 Q. -- would you not? 18 A. Those were our usual sources of literature 19 information. 20 Q. Industrial hygiene association journals. 21 The different sources we discussed yesterday. Would 22 you agree? 23 A. Yes. 24 Q. And such things as the Chemical Abstracts, 25 which I suppose you used from time to time. 570 1 A. From time to time. 2 Q. Okay. So, do you think, Dr. Rowe, that even 3 in the 1940's it would have been reasonable for a 4 company that had a toxic material or suspected toxic 5 material in its plants and that - one that workers 6 were being exposed to, to ignore the published 7 literature and to not make any effort to investigate 8 the health hazards that might have been reported in 9 the literature? 10 MR. PIERCE: I'm forced to object 11 to that question as being highly 12 ambiguous, nonspecific as to facts and 13 circumstances, making it very, very 14 difficult, if impossible, to answer. 15 Do your best. 16 A. I did not know that literature was ignored. 17 Q. Well, now, Dr. Rowe, just because I asked 18 you something doesn't mean I'm implying that you did 19 it or Dow did it. I'm just asking you what your view 20 was from that time period as to whether it would be 21 reasonable to ignore the literature. I'm not saying 22 that you did it. I'm not meaning to suggest you did 23 it. 24 A. No. It's -- It's -- It's reasonable to use 25 the literature that you can find and limited, perhaps, 571 1 on your capacity and your ability to do so. But 2 certainly don't ignore facts. 3 Q. Dr. Rowe, do you recall making any kind of 4 presentations at any time to the board of directors of 5 Dow on a health- or safety-related matter? 6 A. Yes. 7 Q. What would be -- What would be the 8 occasion? What was it? 9 A. I don't know. Don't remember. 10 Q. Were thereseveral? 11 A. Yes. 12 Q. Does this mean you were, like, periodically 13 invited to talk to them and bring them up to date on 14 current topics or - 15 MR. PIERCE: Object -- Objection 16 to the form; leading. 17 MR. BLANKS: Leading? I get to 18 lead. You're the one that doesn't get 19 to lead. 20 A. It was not -- It was not on a periodic or 21 scheduled basis except on - at various times certain 22 of the board were interested in what we were doing as 23 part of their job, I suppose, to know what's going on. 24 Q. All right, sir. So, you had access to the 25 board and were from time to times invited there to 572 1 speak to them about things of interest to them and to 2 you? 3 A. Yes. 4 MR. PIERCE: I'd like to object to 5 mischaracterization of certain parts of 6 his answer. 7 Go ahead. He already answered it; 8 so, let's go forward. 9 Q. Do you know, sir, of any destruction at Dow 10 of industrial hygiene records? 11 A. I'm sorry. I didn't hear it, I guess. 12 Q. Yes, sir. I wonder if you were aware of any 13 destruction of industrial hygiene records that was 14 done at Dow before you left the company. 15 A. Not to my knowledge. I don't know anything 16 about anything like that. I've never heard of it. 17 Q. Have you heard of any -- Okay. You've never 18 heard of any destructions even since you left Dow - 19 A. No. 20 Q. -- of such records? Okay. How about 21 toxicological records, reports, and such? 22 MR. PIERCE: Objection to the form 23 of the question, - 24 A. Not to my knowledge. 25 MR. PIERCE: -- if that is a 573 1 question. 2 A. Not to my knowledge. 3 Q. Do you know, Dr. Rowe, whether Dow had a 4 document retention or document destruction program 5 that called for getting rid of documents of a certain 6 age? 7 8 MR. PIERCE: Objection to the form of the question. It's compound. I 9 think it's editorializing. And it's 10 leading. 11 And if there is a program you 12 wish to ask him about, why don't you 13 just identify it. Go ahead. 14 Q. Do you know, Dr. Rowe, whether Dow adopted a 15 policy to purge its files of old records of any sort 16 to destroy documents from the past while you were 17 there with the company? 18 A. As I recollect, there was a - a program - I 19 can't tell you what time or what - but to clear 20 records of old - or clear the records section, 21 whatever that was, of, I presume, irrelevant 22 material. 23 Q. Did this program affect the departments for 24 which you were responsible or in which you worked? 25 A. I don't -- I'm not aware of it. I don't 574 1 know. 2 Q. Did you understand that medical or health 3 and safety records were not included in this program 4 of destroying old records? 5 A. I'm not aware -- I'm not aware. As far as I 6 know, they were not. 7 Q. I see. 8 A. Not destroyed, I mean. Nothing -- Health 9 records, I always thought, were - were there at least 10 for the life of the person. 11 Q. And what about the - all the data gathered 12 by the toxicology lab at Dow, did you understand that 13 that was protected from the document destruction 14 program? 15 A. I - 16 MR. PIERCE: Objection to the 17 form. Objection to the use of the term 18 "document destruction program." 19 MR. ALMQUIST: And I want to join 20 in that objection. There is a 21 characteriza -- Argumentative 22 characterization of the program. 23 Q. You did understand that the -24 A. Not that I know of. 25 Q. -- program called for the destruction of old 575 1 documents, didn't you, Dr. Rowe? 2 MR. PIERCE: I think he has 3 already given you his answer. 4 A. I -- This was out of my area of 5 responsibility. And I don't know what the -- They 6 certainly were not in my files or any lab files, that 7 I know of. 8 Q. Okay. So, the "document police" never came 9 to your lab or offices and said, "Hey, Dr. Rowe, get 10 with the program. You haven't been purging your 11 files," anything like that? 12 MR. PIERCE: Come on, now, 13 Mr. Blanks. Even for you "document 14 police" is a bit much. And, also, he 15 has indicated to you that his documents 16 are retained. So, what else do you 17 need? You're asking for his personal 18 knowledge of his documents. He's 19 telling you about them. 20 Q. How about your department's documents? 21 A. Not to my knowledge. 22 Q. Did you have an opinion while you were still 23 with Dow about the propriety of discarding and 24 destroying old records from the scientists, tox. lab, 25 that sort of thing? 576 1 MR. PIERCE: Objection to the 2 form. I think he's indicated to you 3 that his records were not removed or 4 destroyed. 5 A. I had no part of destroying any records. 6 Q. If the program had called for the 7 destruction of the toxicological lab records, is that 8 something that you would have been philosophically 9 opposed to, then, Dr. Rowe? 10 A. I would have objected. 11 Q. All right, sir. Do you know, sir, whether 12 copies of any of the toxicological records at Dow were 13 sent from time to time to the Dow legal department? 14 A. I'm sure reports went to the legal 15 department. I don't know whether all did or not 16 but -- They probably did not, but certainly some did. 17 Q. Okay. Can you recollect any of the sort of 18 situations that would have called for tox. lab records 19 to go to the legal department? What would have been 20 the condition that would have made that happen? 21 MR. PIERCE: I'm going to object 22 to the form of the question because, as 23 worded, it requires speculation. 24 A. There was -- I certainly can't remember all 25 possible situations, but certainly the -- There was a 577 1 unit involved in registration of materials with the 2 Government which was in the legal department. And 3 they certainly had all of our reports. If there was a 4 particular issue that the legal department wanted or 5 was interested, they had access to it. 6 Q. Would that also have been true of industrial 7 hygiene documents during the years that you were 8 responsible for industrial hygiene? 9 A. As far as I know. 10 Q. Do you know, sir, whether records from 11 industrial hygiene section were destroyed under the 12 document program at Dow that we've talked about? 13 A. Not to my knowledge. 14 Q. Is that -- Is that something that you would 15 have been philosophically opposed to, as well, the 16 destruction of the old industrial hygiene records and 17 files? 18 A. Yes. 19 Q. Why is that, Dr. Rowe? Why would you be 20 opposed to that? 21 A. I think they would probably contain a lot of 22 history. 23 Q. And what conceivable importance would that 24 be to a scientist, Dr. Rowe? 25 A. It would be the only way, that I know of, 578 1 that you could document what the situation was. 2 Q. In the past? 3 A. In the particular plant, certainly. I don't 4 know that -- If they were destroyed, I don't know 5 that. 6 Q. Yes, sir. 7 A. If they were, I don't know it. I don't know 8 that they were. 9 Q. And if they were -- 10 A. I doubt if they were but that's... 11 Q. Okay. Have you, yourself, been working on a 12 history of your work or the Dow toxicology program? 13 A. Not for years. 14 Q. You plan to get back to the project? 15 A. I don't -- I don't know whether I will or 16 not. 17 Q. When the OSHA regulations came into effect 18 around 1970, what did Dow do then, that you recall, to 19 change its rules for working with asbestos insulation 20 in its plants? 21 A. I don't know. 22 Q. Do you recall that there were any changes 23 during that time, '70 to '73, in the asbestos handling 24 program? 25 A. I don't recall. 579 1 Q. Do you recall that your department or the 2 people that were reporting to you made any proposals 3 that would have come before you to improve the methods 4 for handling asbestos materials in Dow plants? 5 A. I don't remember. 6 Q. Do you recall, Dr. Rowe, whether there were 7 any changes that took place in the toxicology lab in 8 conjunction with the OSHA regulations of the early 9 Seventies as to handling asbestos in the lab? 10 A. No. I don't remember. 11 Q. Were you still working in the lab at all in 12 1970 through '73? 13 A. Very little. 14 Q. Do you know whether Dow ever ceased the use 15 of asbestos in the Gooch crucible filters? 16 A. No, I don't know. 17 Q. They were still using it the last time you 18 wore in the lab, I suppose. 19 A. Don't know. 20 Q. Don't remember? 21 A. No. 22 Q. Did not the -- Didn't the health and safety 23 professionals that worked at Dowell Company share with 24 you the occupational health information that they 25 developed and had at hand? 580 1 A. I don't recall. I just don't -- I don't 2 remember. 3 Q. You told us how you had done over the years 4 your toxicology work or industrial hygiene work for 5 subsidiaries like Dowell and including Dowell, I 6 think, yesterday, correct? 7 A. We did a certain amount of - of 8 toxicological work, as we discussed yesterday, I 9 believe; but as far as industrial hygiene, I don't - 10 I just don't recall what the situation was there. 11 Q. Was the case, though, that you did have open 12 communications with the health and safety people 13 working for Dowell between your tox. lab in Midland 14 and their folks in Tulsa or wherever they were? I 15 mean there was a... 16 A. Well, there must be must have. There would 17 be no reason why there wasn't. But I don't recall 18 the - any particular arrangements. 19 Q. But the practice was that there was a free 20 exchange of information between the health and safety 21 professionals in Midland and Tulsa? 22 A. It would depend upon your description of 23 "information exchange," because our reports would not 24 go to Dowell unless they were concerned with materials 25 that Dowell was interested in or asked about. 581 1 Q. Okay. But they had access to you - to your 2 department for consultations, I suppose. 3 A. Yes. 4 Q. And they didn't withhold information that 5 they had from the Midland toxicologists or medical 6 departments, to your knowledge, did they? 7 A. I don't know. 8 Q. You wouldn't have expected them to, would 9 you? 10 A. I wouldn't expect them to, but I don't know. 11 Q. I mean, surely the Dowell company operated 12 under the same general philosophy about providing safe 13 workplaces as Dow Chemical did, didn't it? 14 MR. PIERCE: He's given you his 15 answer that he doesn't know. Of 16 course, he can not know what's in the 17 mind of anyone at Dowell. 18 A. I'm not -- I really don't remember what 19 the - even how that operation was conducted down 20 there. 21 Q. Okay. When was it, Dr. Rowe, approximately, 22 that Dow adopted the policy to inform each and every 23 person who would be in a block area of all the known 24 hazards? 25 A. I don't know. 582 1 Q. Do you know, sir, whether that ever became 2 the Dow policy? 3 A. No, I don't know. 4 Q. Well, certainly it was the policy in your 5 lab, wasn't it, to inform everybody that would be in 6 there of all the known hazards that they might 7 encounter there? 8 A. I'm confused, I guess, by where the -- I 9 don't understand what your - what you're talking 10 about, I guess. We passed our information to people 11 that asked for it or that we thought it was important 12 that they know about it. And there was no problem on 13 that, as far as I know; but I guess I don't understand 14 your question. 15 Q. Okay. Let me try again, and maybe we can 16 get together because I know you're trying to be 17 helpful. 18 Do you know, Dr. Rowe, whether it was ever 19 the practice at Dow to inform each and every worker 20 who would be in a block area in the plant of all the 21 known hazards that they could encounter there? 22 A. Now, what do you mean by "block area"? 23 Q. I use that term the same way Dow may have 24 used it. It's a Dow term. 25 A. I don't know what it means. That's why 583 I I'm - 2 Q. Okay. 3 A. -- I'm -- I can't answer you. 4 Q. In a particular unit area. Wouldthat make 5 it easier? 6 A. Well, in a particular plant, yes. 7 Q. When we speak of a plant, are we talking 8 about a subpart of the big Midland facility; or do you 9 just - do you speak of the Midland plant as 10 encompassing everything? II A. Well, various operations were scattered 12 different places in the - in the Midland area. Now, 13 we're talking about Midland. 14 Q. Yes, sir. 15 A. That's a big area. And there were plants 16 that were dealing with, for instance, the chlorinated 17 hydrocarbons. And there might be one over here and 18 there might be one over there making a different 19 material, but they would probably be under the same 20 supervision. 21 Q. But would we speak of each grouping of 22 machinery as a plant? That's what I was trying to get 23 a handle on. 24 A. Yes. A manufacturing unit, for instance, 25 that was making carbon tetrachloride. 584 1 Q. Okay. 2 A. Or a separate unit that was making vinyl 3 chloride or something similar. Now, those two 4 probably didn't go together. But there were groupings 5 of operations, and they were under - usually under a 6 single manager. 7 Q. Well, then, let's speak in terms of a 8 manufacturing unit, if that makes it more precise. Do 9 you know, sir, when, approximately - what decade, 10 even - it became the practice at Dow to inform each 11 and every person who would be in a unit area of the 12 all the known hazards there? 13 A. I can't -- I don't know when that was. That 14 was pretty much under Mr. Hoyle's operation. And I 15 know he was one who was very interested in perfecting 16 that distribution of information. 17 Q. So that if Mr. Hoyle were the one who began 18 that practice, it would have obviously begun after his 19 employment began around '48 or so. 20 A. I would expect it would be his - him or his 21 people. 22 Q. Okay. And would it also have been the 23 procedure or the policy to inform the people who would 24 be in a particular manufacturing unit of the 25 appropriate protective equipment required for that 585 1 area? 2 MR. PIERCE: Are you asking 3 Dr. Rowe if he knows, his specific 4 knowledge on this; or are you asking 5 him to speculate as to what might have 6 been? 7 MR. BLANKS: Well, - 8 MR. PIERCE: I don't think the 9 question is clear as to really what you 10 want on that. 11 (By Mr. Blanks) 12 Q. Are you confused, Dr. Rowe? I find that 13 Dr. Pierce's objections always confuse me. 14 MR. PIERCE: Not as much as your 15 questions confuse us. 16 A. Well, would you try again? 17 Q. Yes, sir. I wonder if, as part of the 18 policy of informing each and every person who would be 19 in a manufacturing unit area of all the known hazards 20 there, whether Dow also would have informed these 21 folks of the appropriate protective equipment required 22 for that area that they'd be going into. 23 A. I would think they would if there was 24 protective equipment required. And that was not our 25 general policy to operate with protective equipment. 586 1 That was not supposed to be except on emergencies or 2 very short-term efforts. 3 Q. All right, sir. Do you know, Dr. Rowe, of 4 any times when Dow began to monitor for asbestos dust 5 in connection with brake shoe repair work? 6 A. I don't recollect. 7 Q. Do you recall, sir, ever receiving at the 8 toxicology lab or the industrial hygiene department 9 any information from the automobile manufacturers that 10 asbestos was - in brake shoes was a hazardous 11 material? 12 A. I do not recall receiving any information 13 from manufacturers. 14 Q. Would the same be true for the manufacturers 15 of brake shoe parts, brake - disk pads in brake shoes, 16 as well as the auto manufacturers? 17 A. I don't recall. 18 Q. Don't recall getting any information from 19 them, either? 20 A. I beg your pardon. 21 Q. Recall receiving no information from the 22 brake parts manufacturers, either? 23 A. I don't recall that. It seems to me that 24 there was a publication somewhere along the line 25 discussing that, but I don't - I don't know where it 587 1 is. 2 Q. You're recollecting a publication you had at 3 Dow that discussed the asbestos brake shoe - 4 A. No. 5 Q. -- hazard? Is that what - 6 A. Something in the literature. 7 Q. Oh, okay. All right, sir. Was it always 8 during your years with the company Dow's policy to 9 tell its customers of all the known and suspected 10 health hazards of Dow products? 11 A. As far as I know, at the - very early in the 12 game - early years- I do not believe that was the way 13 they practiced. 14 Q. Shortly after you arrived - 15 A. But later on, after the Material Safety Data 16 Sheets and everything started to come out, I believe 17 it was - the information was supposed to have passed 18 on, but that would have been through salespeople. 19 Q. Would that have been as early as the 1940's? 20 A. No. 21 Q. Fifties? 22 A. I don't know. 23 Q. Weren't you, in your tox. lab, developing 24 information about the products that Dow made as early 25 as the - even the late 1930's? 588 1 A. Yes. 2 Q. You just don't know whether or not Dow was 3 providing that information to the customers for those 4 products that early? 5 A. That I don't know. 6 Q. Surely you'd agree that that's a reasonable 7 thing to do, is to tell your customers about the known 8 and suspected hazards that could be encountered in the 9 use of a material, wouldn't you? 10 MR. PIERCE: Are you asking this 11 of the witness as an expert on required 12 warnings, as a citizen in his 13 community, as a toxicologist? I don't 14 understand the basis of asking that 15 kind of general question to this 16 witness. 17 Q. Do you understand that the reasonableness of 18 telling the users of products about the health hazards 19 that they entail would be different for a toxicologist 20 as opposed to a manufacturer as opposed to some 21 ignorant customer, Dr. Rowe? 22 A. Well, the literature that would be - that 23 would go along with it, including labels, were 24 supposedly to inform people that - of hazards. And 25 there were certain - certain governmental regulation 589 1 that prescribed - stated this sort of information that 2 had to be presented in the label which was, I presume, 3 on every package that - of a material. 4 The biggest problem was sometimes the labels 5 were pretty small if the package was small. And an 6 effort then was made to - I don't know how 7 consistently - to pass on information that was 8 available. 9 Q. And certainly if Dow had information that 10 went beyond what the minimum Government standard was 11 for a label - I mean that dealt with the toxicity of a 12 material to the user - it would convey that, wouldn't 13 it? 14 MR. PIERCE: Once again, I would 15 like to object. Dr. Rowe has not 16 indicated he is an expert on labeling. 17 Portions of this question require legal 18 conclusions from this witness which he 19 is not in a position to make. But he 20 certainly can answer it, to the best of 21 his ability, as a general person in the 22 community. 23 A. There was a section that I mentioned earlier 24 that was in - in the legal department that was 25 responsible for meeting Government regulations with 590 1 respect to labeling. 2 Q. As a scientist concerned with facts working 3 in the area of toxicology, an area that deals with the 4 ability of materials to cause disease and death and 5 adverse effects, as you say, certainly you never 6 condoned, did you, withholding information about 7 poisonous materials or potentially poison material 8 just because there was a label required that the 9 Government wanted, would you? 10 MR. PIERCE: Object to the form of 11 the question. It's ambiguous. 12 Withholding what materials, 13 molecular weights? I mean, it's so 14 ambiguous that it's impossible to 15 answer accurately. 16 MR. ALMQUIST: And I'm going to 17 further object to it because it is 18 nonspecific with respect to whom the 19 material was being sold, whether we're 20 talking about sale to a sophisticated 21 merchant user or we're talking about 22 consumers. That type of question 23 without more information is incapable 24 of being answered. 25 A. Well, I certainly didn't object to passing 591 1 information along and - if it was useful for the 2 prevention of adverse effects at the other end of the 3 pipeline, so to speak. That was not my job to pass 4 that information along, and I don't know how well it 5 was done. 6 Q. Certainly you believed that it should be 7 passed along during the years that you worked at Dow, 8 didn't you, sir? 9 MR. PIERCE: Objection to the form 10 of the question and the ambiguity of 11 the term "it." 12 Q. That information -- Didn't you believe when 13 you worked for Dow that that information that you 14 developed should be passed along to the customers? 15 MR. PIERCE: I continue the 16 objection for ambuguity and vagueness. 17 A. Oh, I had every reason to believe that it 18 did. 19 Q. Don't you think, Dr. Rowe, that a 20 manufacturer of a product that's known or suspected of 21 being able to cause cancer or crippling, disabling 22 diseases has an obligation to investigate what can 23 reasonably be known about the health effects of the 24 material - 25 MR. PIERCE: Objection. 592 1 Q. -- before it puts it on the market? 2 MR. PIERCE: Objection to the form 3 of the question. It's asking about 4 obligations, requiring legal 5 conclusions on the part of this 6 witness. 7 Go ahead. 8 A. Well, I would categorize it in a more 9 general way and just say that if there was a 10 particular hazard, irrespective of what the material 11 is, that that information should be passed along. 12 Q. Indeed, then, you'd agree that - as a 13 scientist, that a company would have a moral 14 obligation to investigate those hazards and pass it 15 on, wouldn't you, sir? 16 MR. PIERCE: I'm going to object 17 to the form of the question. He's not 18 here to answer about moral obligations, 19 which, also, requires essentially legal 20 conclusions. He's here as a fact 21 witness. Why don't you ask him the 22 fact questions that he's here to 23 answer. 24 Q. Sir? 25 A. I don't think anyone can say that 593 1 information shouldn't be passed on. 2 Q. And even back in the Thirties, didn't you 3 believe, Dr. Rowe, that it was the right thing to do 4 for Dow to try to learn what it could reasonably know 5 about the potential health hazards of the materials it 6 was using and selling? 7 A. Well, that was the reason why our laboratory 8 was developed, to generate that sort of information. 9 Q. And didn't you believe then, sir, that this 10 was the right thing for any company to do that made 11 materials that could have harmful health effects in 12 their ordinary use? 13 MR. PIERCE: When you say, "this 14 the right thing to do," does that 15 mean -- I'm sorry. Do you mean share 16 information? Do you mean test it, 17 themselves? Do you mean send it out? 18 It's a completely ambiguous question. 19 A. I can only speak for my own feelings, which 20 I've already expressed. 21 Q. So, was it the case, then, that during the 22 Thirties and the Forties, the Fifties and the Sixties 23 you really didn't expect the suppliers of toxic 24 materials to Dow to have made any kind of 25 investigation about the health hazards that it could - 594 1 that they could pass on to Dow? 2 MR. ALMQUIST: Object as being an 3 argumentative question. 4 A. There were -- There were some companies that 5 had facilities and used them to develop information. 6 And our purchasing people were - in the later years, 7 anyway -- I don't like to say "required," but it was 8 part of the program to inquire of the seller what 9 information they had with respect to a particular 10 substance. Many -- Many very small companies did not 11 have that -- They had no information; so, they 12 couldn't pass it on. 13 Q. And they would have had no information 14 because they hadn't developed any, I suppose. 15 A. Or there wasn't any in the literature or 16 anything of that nature. 17 Q. Yet when Dow faced a situation like that 18 where it didn't have the information or found none in 19 the literature, Dow would actually make an 20 investigation through its toxicology lab, wouldn't it? 21 A. Well, we tried to do that. 22 MR. STANGER: Could we ask the 23 witness to speak up, please? 24 Q. Dr. Rowe, could you share with us how in 25 your job at Dow you would go about attempting to 595 1 influence decision makers in Government? 2 MR. PIERCE: I'd like to object to 3 the form of the question. 4 Could you be more specific? 5 MR. BLANKS: Well, about what, 6 "Government"? 7 MR. PIERCE: Yes. 8 MR. BLANKS: "Decision"? 9 MR. PIERCE: What Government? 10 What influence? 11 Well, go ahead - 12 MR. BLANKS: "Influence"? 13 Go ahead and answer, to the 14 best of your ability, with the 15 vagueness. Go ahead. 16 (By Mr. Blanks) 17 Q. Now, wait a minute. I'm not 18 suggesting - 19 A. I didn't get your question. 20 Q. All right. We'll try again. And not 21 meaning to imply any illegal influence of the sorts 22 we -23 MR. PIERCE: Oh, we never would 24 have seen that in your 25 Q. -- see in Government from time to time. 596 1 How did you in your job at Dow go about 2 influencing decision makers in Government? 3 A. We would do our best to gather the facts and 4 present them to them on a scientific basis, along with 5 our interpretation of those results, and discuss it 6 with the appropriate people. 7 Q. And these efforts were from time to time 8 directed at influencing proposed changes in 9 regulations about the chemicals you were using at Dow? 10 MR. PIERCE: Why not -- Instead of 11 leading that way, why don'tyou ask him 12 what he did; and then he could tell 13 you. 14 MR. BLANKS: Well, then I wouldn't 15 get your objections. 16 MR. PIERCE: Okay. So, now you 17 have it. 18 Objection to the form. 19 A. I would think that that would have been 20 within the scope of Government relations. 21 (By Mr. Blanks) 22 Q. Could you explain to us, Dr. Rowe, what sort 23 of topics or areas that you did attempt to influence 24 Government decision makers as part of your Government 25 relations activities? 597 1 MR. PIERCE: When you say 2 "influence," you mean educate, bring 3 information to them? I mean, what is 4 what are you really asking this 5 witness? 6 Okay. Try to answer it, Dr. Rowe. 7 A. Well, when we developed information that was 8 pertinent to the A.C.G.I.H. threshold limit committee, 9 we presented it to them and made our suggestions. 10 When we went to the Food and Drug Administration, we 11 presented our data and our proposals to acquaint them 12 and give them the best information and opinions that 13 we had or that were available with respect to 14 regulations that were to come out on a particular 15 material or whatever. This was very broad in scope. 16 Q. All right. Did any of your work in 17 Government relations deal with any proposed OSHA 18 regulations or changes in the standards - in OSHA 19 standards? 20 MR. PIERCE: I'd like to object to 21 the form of the question. The way you 22 phrased it, "his work in Government 23 relations," suggests he was in the 24 Government relations department, which 25 I don't believe was part of Dr. Rowe's 598 1 background. 2 But given that objection, go ahead 3 and answer. 4 MR. BLANKS: Well, it was the term 5 he used earlier, you know. 6 A. Relations with OSHA? 7 Q. Yes, sir. 8 A. Yes. I had - I had relations with OSHA. I 9 can't remember all the materials that we discussed 10 with them. 11 (By Mr. Blanks) 12 Q. Were your relations with OSHA directed 13 toward influencing changes in the regulations that 14 OSHA wrote or proposed to write? 15 A. I -- I don't know about the "change," 16 but "help develop appropriate regulations" might be a 17 better description. 18 Q. Were there any particular materials you 19 recall, Dr. Rowe, in which you attempted to influence 20 the development of proposed regulations with OSHA? 21 A. I don't -- I can't remember specifics. 22 Q. Okay. 23 A. Are you talking about developing regulations 24 or criticizing them or what? 25 Q. Well, I suppose all of the above because I 599 1 really don't know what your activities were and was 2 just hoping you'd explain those to us. 3 You never went to OSHA and suggested that 4 regulations be written about any particular material 5 or workplace condition, did you? 6 A. I'm not -- I'm not certain that we didn't 7 make suggestions to OSHA as to things that might or 8 that should occur or did occur. I served on the OSHA 9 carcinogen advisory committee. And we presented data 10 on a number of materials that we were handling and 11 using. 12 Q. Did you find that to be a productive effort, 13 Dr. Rowe? 14 A. In some respects. 15 Q. And what were those? 16 A. Well, that was a very - very interesting 17 committee. There were many factors. "Many factions" 18 I should say. And there was considerable disagreement 19 between the various groups, as one might expect. 20 Q. What did you learn from that experience 21 about the purpose of some of Dow's adversaries that 22 you encountered on that committee? 23 A. Of what? 24 Q. About the goals and purposes of Dow's 25 adversaries that you encountered on that advisory 600 1 commission or advisory committee. 2 A. Well, the principal - the principal 3 difference in philosophy, I think, between different 4 groups was the belief that reflected the Delaney 5 clause in the Food and Drug Act which indicates that 6 if a material produces a cancer in any animal at any 7 dose, it therefore deserves a zero tolerance. And I 8 don't believe that that's scientifically sound at all. 9 THE REPORTER: Excuse me. I need 10 to change my paper. 11 MR. BREWTON: You've got another 12 minute and a half (directed to 13 Mr. Blanks). 14 MR. BLANKS: He's out of tape, 15 you're out of paper. 16 MR. PIERCE: Okay. Let's take a 17 lunch break. 18 1:15? Is that all right? 19 MR. BLANKS: Sure, guys. 20 (AT 12:07 P.M. THE DEPOSITION WAS 21 RECESSED FOR LUNCH. AT1:33 P.M. THE 22 PROCEEDINGS RESUMED ASFOLLOWS:) 23 (By Mr. Blanks) 24 Q. Dr. Rowe, from our first couple of days 25 visiting together, you'll recall that you brought with 601 1 you a number of documents from your personal files in 2 response to the subpoena duces tecum that was part of 3 the deposition notice. And I just wanted to establish 4 for our record that those documents were, in fact, 5 things that you brought from your personal file. 6 With that in mind, Dr. Rowe, have you had a 7 chance to check through the three volumes of the 8 exhibits to the deposition of yourself taken on 9 October 1st and October 2nd of 1992? 10 A. I have not. 11 Q. Can you tell us, sir, whether or not the 12 documents that are in each of the three exhibits to 13 your October 1st and 2nd, 1992, deposition did come 14 from your personal files at home? 15 MR. PIERCE: I think with that 16 question you have to give him at least 17 a few seconds to scan them or 18 something. 19 Why don't you just take a quick - 20 Scan through them very quickly. 21 MR. ALMQUIST: And for the benefit 22 of Dr. Rowe, as well, let me simply 23 tell him that these are the 24 documents that we had copied and 25 produced; that I have looked at 602 1 them, as well, to make sure that they 2 are the documents that you brought. 3 MR. PIERCE: From the first 4 deposition. 5 MR. ALMQUIST: From the first 6 deposition. 7 Q. But take a moment, if need be, to - 8 A. Well, there's quite a volume. All I can say 9 is that the originals that I provided the attorneys I 10 have to assume are - these are copies of those. That 11 was -- That was the understanding when I gave them to 12 them for copying. And if they can attest to the fact 13 that -- They came -- All they had to copy came from my 14 personal files, yes. 15 MR. ALMQUIST: And I can tell you 16 that I had - took those documents that 17 Dr. Rowe gave me and had them copied 18 and provided them to you. And they are 19 attached as the three volumes of 20 exhibits to his first deposition. 21 Q. Okay. Mr. Pierce, is that - 22 MR. PIERCE: I have no problem. 23 I'm not making any objection. I just 24 think the way you worded the question 25 would put him in a -- But I think he's 603 1 explained; and that's fine for all of 2 us, I believe. 3 Q. All right, sir. Now, Dr. Rowe, bear with me 4 on a few questions about a couple other things from 5 the older times. 6 Do you recall, sir, having with you at Dow 7 the industrial toxicology textbook from 1934 when you 8 were working there? 9 MR. PIERCE: Objection to the form 10 of the question. It's vague. No 11 author - 12 Q. A text titled Industrial Toxicology, 13 published in '34. 14 A. I -- Was this the -- Who was the editor? 15 Was it Patty? 16 Q. I think it's too early for Patty. 17 A. I think so, too. I don't believe so. The 18 earliest one that I have is the Industrial Hygiene and 19 Toxicology edited by Patty, and I can't remember what 20 the publication date on that was. 21 Q. All right, sir. I think you told us before 22 that you thought that was the first edition. Do you 23 know - 24 A. Yes. It is. 25 Q. Okay. Do you recall having a text called 604 I Industrial Hygiene, edited by Lanza - 2 A. No. No. 3 Q. -- and Goldberg from'39? 4 A. I do not. I do not. 5 Q. How about Cyril Blacktin's text titled Dust 6 from 1934? 7 A. I do not. 8 Q. Did you have a book called Industrial 9 Hygiene for Engineers and Managers by Carey McCord and 10 Floyd Allen? II A. No. 12 Q. Do you recall having Drinker and Hatch's 13 text titled Industrial Dust from '36? 14 A. No, I do not. 15 Q. How about Lanza's 1938 book titled Silicosis 16 and Asbestosis? 17 A. No. 18 Q. All right, sir. Dr. Rowe, sometime in the 19 morning a couple of boxes of papers were wheeled in. 20 And could you explain to us where those copies came 21 from, just generally? 22 A. The big bulk of that material was a file 23 that I accumulated over - of reprints that I 24 accumulated over the years on various - various 25 aspects of the subject of carcinogenesis. And I had 605 1 at one time a thought that I might try to write a 2 treatise of some description on the subject. It 3 always did intrigue me, but I never knew enough about 4 it; and nothing has ever happened. Those things -- I 5 don't know why I shipped them down here when I came 6 down here 13 years ago, but I did. And I haven't 7 looked at them since until Counsel suggested that they 8 might be part of the things that I should provide. 9 And there's nothing -- I have nothing to hide. I 10 simply didn't believe that they pertained to the 11 particular subject that we had at issue. 12 Q. Okay. 13 A. So, I made them available for whatever use 14 you may have. 15 Q. Okay. So, back in October it just didn't 16 strike you that they came within the scope of the 17 document request; but since then you've considered 18 they might be? 19 A. That's true. 20 Q. And you were kind enough, then, to go 21 through your papers of the ones you've just described 22 and pull out those that you thought could possibly be 23 responsive to the document request? 24 A. That was what I did at the first 25 deposition. I have not even -- I did not even go 606 1 through that box of stuff. It just was in my closet. 2 Q. I see. Okay. Does that pretty much exhaust 3 your collection of old articles and papers, then? 4 A. It does. 5 Q. All right, sir. 6 A. I may have something on 2,4,5-T and loose 7 paper clippings on Agent Orange and things like that 8 and the dioxins that -- I think I have those yet. 9 Q. Generally speaking, Dr. Rowe, the two boxes 10 of documents you brought consist of articles from 11 years past concerning carcinogenicity and related - or 12 just generally toxicology and industrial hygiene, I 13 suppose. 14 A. Well, the one batch was -- I tried to 15 categorize them years ago into what was related to 16 carcinogenesis, occupational and otherwise. And then 17 there are other documents that I didn't think had any 18 bearing on - on the hearing that are now available to 19 you - a lot of personal cards and notes that I've used 20 and will probably continue to use in lectures on this, 21 that, and other things. Every once in a while someone 22 asks me to give a talk on the subject, and I go back 23 and I look at some of my old notes so that I don't 24 have to reconstruct everything. 25 Q. Okay. 607 1 A. So -- But they're there for whatever value 2 they may be to the purpose of your inquisition. 3 MR. PIERCE: Appropriate 4 terminology. 5 A. I don't know what's going on but - 6 Q. Oh, well, Mr. Pierce waslaughing at your 7 use of the word "inquisition," which is one of my 8 favorites, too, but... 9 All right, sir. The articles that are in 10 the boxes, would those be reprints that you acquired 11 around the time that the articles were published? 12 A. I don't know. 13 Q. Does the box also include typed notes of 14 some lectures that you, yourself, gave over the years? 15 A. It could be. 16 Q. If among the documents in the two boxes are 17 papers that on their title show that it's a paper 18 authored by you or a speech to be given by you, would 19 that be accurate? 20 A. I think so. 21 Q. All right, sir. And if the box contains 22 text of speeches given by others and yourself and the 23 title shows that to be so, would those, to your 24 knowledge, be accurate, as well? 25 A. They all came from my file. 608 I Q. So, for example, - 2 A. I don't know what all -- I don't even know 3 what all is in there. 4 Q. Well, for example, if we were to find in 5 there a couple of talks that appeared to have been 6 authored by John Zapp, a Cummings Lecture, or a 7 Stokinger Lecture, would it be your recollection that 8 those would be copies of speeches that you obtained 9 around the time they were given? 10 A. Yes. II Q. And there are also, as you mentioned, some 12 handwritten documents in there. And I don't mean to 13 address them globally, but some of those would be 14 things that you, yourself, wrote that have been 15 copied - photocopied? 16 A. I think they're probably all - all my 17 writing. I looked over those, those - those 18 handwritten statements. And there may be one or two 19 in there that I can't even remember where they - where 20 they were given. So, I don't know. 21 Q. Okay. Well, that's understandable. 22 A. But they're there, and that's why I brought 23 them. 24 MR. PIERCE: Mr. Blanks, perhaps 25 this would be an appropriate time to 609 1 put on the record what we were 2 discussing informally before 3 Mr. Almquist, yourself, and myself 4 that if there are any questions as to 5 any specific document's handwriting, 6 that if you'll bring it to our 7 attention, we'll certainly have 8 Dr. Rowe look at it and identify it for 9 you at any time. 10 MR. BLANKS: Well, we appreciate 11 that kind offer, sir. 12 (By Mr. Blanks) 13 Q. I had a few specific ones that I did want to 14 visit with you about, if we could just take a few 15 minutes. 16 Dr. Rowe, I've got - I have a reprint of an 17 article titled, "Public Health Hazards from 18 Environmental Chemical Carcinogens, Mutagens and 19 Teratogens," that I'd like to show you here as soon as 20 I can put a label on it. 21 MR. BLANKS: And I'm going to 22 label this Plaintiffs' Exhibit 710105 23 WCH. 24 (PLAINTIFFS' EXHIBIT 710105 WCH 25 WAS MARKED FOR IDENTIFICATION 610 1 PURPOSES BY MR. BLANKS. SAME WILL BE 2 FOUND IN THE EXHIBIT VOLUMES ATTENDANT 3 TO THIS DEPOSITION.) 4 (By Mr. Blanks) 5 Q. (Tendering document) And this one does have 6 some handwritten notes on it. 7 MR. PIERCE: (Reviewing document) 8 (By Mr. Blanks) 9 Q. But Mr. Pierce doesn't want you to see it 10 yet. 11 MR. BLANKS: I'm sorry. I should 12 have gotten out your copy, too. I 13 think there were two of them in there. 14 MR. PIERCE: I mean, I hope you 15 don't object to me looking at a 16 document that you're about to hand the 17 witness. 18 MR. BLANKS: Well, I think it's 19 I think it's quite unreasonable, 20 actually, but... 21 MR. PIERCE: (Tendering document 22 to the witness) 23 (By Mr. Blanks) 24 Q. Do you recognize the handwriting that's on 25 the front page of that article or reprint, sir? 611 1 A. (Reviewing document) I don't recognize the 2 handwriting. 3 Q. So, that's not your handwriting on the cover 4 of that? 5 A. No, sir. 6 Q. Okay. Is this an article that you did have 7 in your files, however? 8 A. Yes. 9 Q. Okay. And you recognize the name of the 10 author? 11 A. Dr. Hueper? 12 Q. Yes, sir. 13 A. Yes. 14 Q. Okay. Did you ever have any dealings or 15 communications, correspondence, that sort of thing 16 with Dr. Hueper? 17 A. I -- I don't remember. 18 Q. Okay. 19 A. He was pretty early on in the game, when I 20 was a neophyte. 21 Q. Yes, sir. Okay. Do you think you ever met 22 the gentleman? 23 A. I may have met him at a meeting or something 24 of that nature, but I've never had any meetings with 25 him. 612 1 Q. All right, sir. Dr. Rowe, the note on the 2 cover page of Dr. Hueper's article looks to be signed 3 by -- Chet? 4 A. Yes. 5 Q. Do you know who "Chet" is? 6 A. His name was Chet Otis. 7 Q. How do you spell that last name, sir? 8 A. O-t-i-s. 9 Q. Oh, Otis. Okay. 10 A. He signed it up above. 11 Q. Oh, I see. And who was he with, Dr. Rowe? 12 A. He was in our agricultural - I don't know 13 what the name of it - agricultural division. In 14 sales, I believe. 15 Q. I see. 16 A. Sales or development. I don't know which. 17 Q. Do you recognize the name above the Chet 18 Otis name at the top right? 19 A. I beg your pardon. 20 Q. Can you tell what word that is above Chet 21 Otis' name? 22 A. I don't know who that is. I don't know who 23 that is 24 Q. Oh, okay. Probably of no - no matter. 25 Dr. Rowe, I've got some papers that are 613 1 handwritten notes that came out of one of the files in 2 the boxes that you provided today that was titled, 3 "loose papers at top of stack." And I rubber-banded 4 them together so that we'd know where they came from, 5 but could we just run through these quickly and let 6 you at least identify them as being in your hand or 7 not and perhaps just a brief clue as to what each one 8 might represent (tendering document)? 9 (PLAINTIFFS' EXHIBIT ROWE 9 10 WAS MARKED FOR IDENTIFICATION 11 PURPOSES BY MR. BLANKS. SAME WILL BE 12 FOUND IN THE EXHIBIT VOLUMES ATTENDANT 13 TO THIS DEPOSITION.) 14 MS. COLDWELL: What exhibit is 15 that? 16 MR. BLANKS: This is marked as 17 Rowe Exhibit No. 9. And I've penciled 18 in at the top there "from loose papers" 19 so we'd keep track of it. 20 A. (Reviewing document) 21 THE WITNESS: See if there's 22 something missing (directed to 23 Mr. Pierce). 24 MR. BLANKS: I don't know, 25 Mr. Pierce. Ithought this was an 614 1 appropriate time for you to object that 2 the document speaks for itself and... 3 MR. PIERCE: I haven't heard a 4 question yet. Maybe I will. 5 MR. BLANKS: No. I was asking 6 Dr. Rowe to just try and tell us what 7 that collection of notes was or 8 pertained to. 9 (AT THIS TIME PLAINTIFFS' EXHIBITS 10 ROWE 10, ROWE 11, ROWE 12, ROWE 13, 11 ROWE 14, AND ROWE 15 WERE MARKED FOR 12 IDENTIFICATION PURPOSES BY MR. BLANKS. 13 SAME WILL BE FOUND IN THE EXHIBIT 14 VOLUMES ATTENDANT TO THIS DEPOSITION.) 15 MR. HOBSON: He's waiting for a 16 question. 17 (By Mr. Blanks) 18 Q. Oh, I'm sorry. Could you give us a clue as 19 to what that generally pertains to or what it is? 20 A. Well, it's obviously the card notes that I 21 used in a speech somewhere. 22 Q. Topic - 23 A. But I can't tell you where. 24 Q. Could you tell what the topic of the talk 25 was, Dr. Rowe? 615 1 A. I don't know. It has to do with - with the 2 broad concept of toxicology and safety and 3 responsibility and the kinds of tests that are 4 conducted and... It looks like an educational lecture 5 for somebody that I don't -- I don't know where 6 (tendering document). 7 Q. All right, sir. Can you place it in a 8 decade, even? 9 A. No. 10 Q. Let me hand you Rowe Exhibit 10, sir, and 11 ask you if that's your handwritten notes (tendering 12 document). 13 A. (Reviewing document) 14 MR. PIERCE: Mr. Blanks, no 15 underlinings or tabs or anything like 16 that on these documents? 17 MR. BLANKS: No. Just the "from 18 the loose papers at the top of the 19 stack" right here. 20 MR. PIERCE: Okay. 21 MR. HOBSON: We haven't had time 22 to accomplish that yet. Lunch was only 23 an hour. Hour and a half, I guess. 24 MR. BLANKS: There is a note 25 written in here on one, "We knew all 616 1 along... 2 A. (Reviewing document) Again, obviously, my 3 notes from a speech. I have no idea where it was 4 given. 5 Q. Or even - 6 A. When. 7 Q. -- or even approximately when? All right, 8 sir. Let me hand you Rowe 11 and ask you if you can 9 answer the same questions about that, sir (tendering 10 document). 11 A. This, again, is another one of the same 12 category. 13 Q. All right, sir. Your handwritten notes? 14 A. Yes. 15 Q. (Tendering document) Rowe 12, please, sir. 16 A. That's my handwriting. 17 Q. All right, sir. (Tendering document) 18 Please look at Exhibit Rowe - 19 What is that one? Hold it. What's the 20 number on that, please? 21 A. Twelve. 22 Q. Oh, dear. I've misnumbered here. We've got 23 two 12's. You just gave me back 12. Let me change 24 the number on that. I've equivocated on us here. 25 MR. BLANKS: All right. We've got 617 1 12. I'm going to change that one to 16 2 because I've already marked up through 3 15. 4 (PLAINTIFFS' EXHIBIT ROWE 16 5 WAS MARKED FOR IDENTIFICATION 6 PURPOSES BY MR. BLANKS. SAME WILL BE 7 FOUND IN THE EXHIBIT VOLUMES ATTENDANT 8 TO THIS DEPOSITION.) 9 (By Mr. Blanks) 10 Q. Let's proceed on orderly fashion to Rowe 11 Exhibit No. 13, sir (tendering document). 12 A. (Reviewing document) That's my handwriting. 13 Q. Thank you. Would you please look at Rowe 14 Exhibit 14 (tendering document). 15 A. (Reviewing document) That's mine. There's 16 a blank piece in here that I don't identify as mine, 17 though. I don't know where that belongs or where it 18 came from (tendering document). 19 Q. "Do you want to cover the presentation and 20 provisions?" Well... 21 A. I don't know where it came from. 22 Q. Okay. I'd leave out - 23 A. As I said, I didn't... 24 Q. All right, sir. Anyway, that's not your 25 writing? 618 1 A. That's not mine, no. 2 Q. Apparently it was in there, but nothing to 3 do but set it aside now. 4 All right, sir. And Rowe Exhibit 15. would 5 this be your handwriting, as well, sir (tendering 6 document)? 7 A. (Reviewing document) Yes, it is. 8 Q. Dr. Rowe, the next bunch of these appears to 9 be from - copies of file cards. And they were not 10 stapled together; so, I assume they were all loose in 11 your file, as well. But we've marked these as Rowe 12 Exhibit 16. And these came out of a file in the boxes 13 that was labeled "from V. K. R.'s talks and papers," 14 within which were found, also, typed notes that 15 appeared to be from your talks. 16 Could you identify that stack or 17 characterize it generally for us (tendering document)? 18 A. (Reviewing document) This is my 19 handwriting. 20 Q. All right, sir. Dr. Rowe, I have some 21 handsome laser color copies of what look to be charts 22 here. And we've just paper-clipped them all together 23 at this point. I've not marked them yet. But could 24 you tell me, first, if they all go together, as best 25 you remember (tendering charts)? 619 1 A. (Reviewing charts) Yes. These are copies 2 of color slides that I have used in - in talks to 3 discuss various aspects of carcinogenicity and other 4 diseases and so forth and particularly to demonstrate 5 the -- I think most all these data probably came from 6 U. S. Public Health Service publications relative to 7 the incidence of various types of cancer in the 8 population. My use of it was primarily in lectures in 9 which I was trying to get people to understand the 10 hazards of smoking. 11 Q. All right, sir. Would these have been 12 slides that you had had prepared while you were still 13 at Dow? 14 A. Yes. I had those prepared. And there were 15 several copies of them. I had one sheet - one set of 16 slides that I used in lectures. And I've used them 17 here - I mean at my present location - for other 18 groups, not recently but sometime -- The data is 19 pretty much outdated, I think, now; but nevertheless 20 it does explain the - or shows graphically the 21 incidence of various types of cancer that the 22 population in this country experiences. 23 Q. Would the data be generally from the Sixties 24 and Seventies? 25 A. I -- It would be in the Sixty or Seventy, 620 1 somewhere in that range. I don't know. I can't tell 2 you. 3 Q. All right, sir. I'm going to label this 4 collection as Rowe Exhibit 17, and we'll leave them 5 grouped together. And I'm going to put that label on 6 the clean side of the mystery paper. And we'll put 7 that together. 8 (PLAINTIFFS' EXHIBIT ROWE 17 9 WAS MARKED FOR IDENTIFICATION 10 PURPOSES BY MR. BLANKS. SAME WILL BE 11 FOUND IN THE EXHIBIT VOLUMES ATTENDANT 12 TO THIS DEPOSITION.) 13 (By Mr. Blanks) 14 Q. All right, sir. Was it -- The kind of notes 15 that you have on your file cards, would those be, 16 like, notes for little talks you might have given to 17 Dow employees? 18 A. Very likely. It could have been any place, 19 but I did give a lot of talks like that to various 20 groups within the company. 21 Q. And generally when you made a presentation 22 before a professional body of your colleagues or your 23 peers, you would normally have that talk typed up in 24 advance to where you would have a more complete and 25 formal draft, would you not? 621 1 A. That generally would be true, but I did not 2 always in verbal presen - in verbal presentations read 3 a talk. And sometimes I used cue cards, so to speak, 4 in - to keep me on track. 5 Q. Okay. Dr. Rowe, if we looked to one of 6 these cards, specifically the -- Let's just look at... 7 MR. HOBSON: Garth Brooks. Never 8 mind. Wrong award. I'm sorry. 9 MR. BLANKS: That was even 10 supposed to be ajoke? 11 MR. HOBSON: Some people got it. 12 (By Mr. Blanks) 13 Q. Dr. Rowe, let's just look at one of these 14 cards out of your Exhibit Rowe 9, or any of the other 15 cards on there that you want. But I'm wondering from 16 looking at the sixth page and using these notes what 17 kind of a presentation you would give from that 18 (tendering document). 19 A. (Reviewing document) This would have been 20 to some area of management or sales department 21 people. I think there's a lot more in this than just 22 the - some of the legal and moral responsibilities; 23 but that type of talk would have been internal and to, 24 as I say, sales management or company management or 25 whatever. I don't know. 622 1 Q. Could you share with us the message that you 2 would have been - would give off of these notes on 3 this particular card and the context of the rest of 4 that talk? 5 A. Well, I was attempting to emphasize to 6 whoever was present that the - that subject, breach of 7 warranty of safety. What I said was (reading) 8 warranty expressed in or implied from communication 9 such as letters, labels, advertising, or verbal 10 statements made by a representative. And deceit or 11 fraudulent misrepresentation allegations usually are 12 that defendant made false or misleading statements to 13 conceal true facts. Generally if moral or legal 14 responsibilities are discharged there will be few -15 "Suits, " I guess it is (tendering document). 16 Q. I'm sorry. The last part was "Generally if 17 moral and legal responsibilities are discharged," -18 A. Yes. 19 Q. -- "then there will be few suits"? And this 20 was a message you were giving to -21 A. Management. 22 Q. Dow management? 23 A. Someplace. Yes. 24 Q. All right. 25 A. Or sales - salespeople. I say some area of 623 1 management. I don't know where. 2 Q. For these different exhibits you've been 3 kind enough to go through with us up through 16, 17, 4 do these notes reflect your thoughts accurately at the 5 time that you - that you made them? 6 A. Yes. 7 Q. And they - what facts or views that you set 8 out on the notes would have been truthful at the time 9 that you made them, whenever that was? 10 A. That was -- I would have no reason to 11 believe otherwise. 12 Q. All right, sir. Very good. I would like to 13 mark as Rowe Exhibit 18 the remainder of the 14 documents, the contents of the box - the box, itself. 15 And we will arrange to have those and all these other 16 exhibits appropriately stamped and numbered so that we 17 have a record of what you've been good enough to 18 bring, Dr. Rowe, and attorneys. 19 A. Well, I brought them -- I don't know whether 20 they're useful, whether they're of any interest; but 21 they were in my files. 22 Q. Very good. Well, we appreciate that, sir. 23 MR. BLANKS: So, that will be 24 Plaintiffs' Exhibit No. Rowe 18. And 25 there are many hundreds of pages. 624 1 (REPORTER'S NOTE: PLAINTIFFS' 2 EXHIBIT ROWE 18 WAS LATER MARKED FOR 3 IDENTIFICATION PURPOSES BY THE 4 REPORTER. SAME WILL BE FOUND IN THE 5 EXHIBIT VOLUMES ATTENDANT TO THIS 6 DEPOSITION.) 7 (By Mr. Blanks) 8 Q. Dr. Rowe, finally, I want to ask you about a 9 couple of things that we've talked about before. 10 Has Dow, since we last met, hired you to 11 serve as a consultant to them in connection with these 12 cases or any other cases? 13 A. When I retired I had a contract with Dow to 14 consult and to do a lot of writing, which I did after 15 I retired. They wished me to be a part of the 16 information source. I did not require or ask -- As a 17 matter of fact, I told them I did not want a contract 18 but I would try to be available if I could be helpful 19 or useful in things that I knew about. And that is 20 the arrangement that we've had since then. We have no 21 formal arrangement. I do bill them for my time, and 22 they pay me. 23 Q. In connection with the lawsuits that we're 24 here testifying about today, are you actually serving 25 as a consultant to Dow? 625 1 A. I presume so, but I don't know the 2 connotation of that word all the way but... 3 MR. ALMQUIST: He's a fact witness 4 in this case, obviously, Mr. Blanks. 5 And we have reimbursed him for his time 6 since there's been a significant drain 7 on his time, obviously, to be here for 8 these depositions; but we are not 9 retaining him as an expert witness 10 in this litigation either as a 11 consulting expert or at trial. 12 (By Mr. Blanks) 13 Q. Okay. Before we resumed our deposition 14 yesterday, had you taken time to visit again with 15 lawyers about the continuation or resumption of your 16 deposition? 17 A. This particular one? 18 Q. Yes, sir. 19 A. Yes. 20 Q. When did thatoccur? 21 A. Monday - Monday afternoon, about 3:30 to 22 5:00 o'clock, I believe, something like that. 23 Q. And that was the first time since we'd left 24 you in October that you'd met with any lawyers about 25 your testimony in these cases? 626 1 A. That's correct. 2 Q. Who was present at your Monday afternoon 3 meeting? 4 A. Dr. Pierce and Linda. 5 MR. ALMQUIST: Linda Fiegener. 6 Q. And who do you understand Ms. Pickner to be? 7 A. Pardon? 8 Q. Who do you understand Ms. Pickner to be 9 associated with? 10 MR. ALMQUIST: Fiegener. 11 MR. BLANKS: I'm sorry. 12 MR. PIERCE: Fiegener. 13 MR. BLANKS: Sounds like what I 14 said. 15 How do you spell it? 16 MR. PIERCE: F-i-e-g-e-n-e-r. 17 MR. BLANKS: Thank you. 18 (By Mr. Blanks) 19 Q. Yes, sir. Who is the lady connected with? 20 A. She's representing Dow someplace or other. 21 Texas division, I think. 22 Q. Do you understand her to be an attorney who 23 works for Dow? 24 A. I understand her to be an attorney. 25 MR. ALMQUIST: Let's correct the 627 1 record for Linda's benefit. She's a 2 legal assistant in the Dow legal 3 department. 4 Q. And during this visit with Ms. Fiegener 5 present, what things were discussed, Dr. Rowe? 6 MR. PIERCE: I direct you not to 7 answer any questions as to any 8 specifics of our conversations. 9 MR. ALMQUIST: And I will join -10 MR. PIERCE: And, listen, you know 11 that this is attorney-client 12 privilege. You know this is 13 inappropriate. So, please, let's not 14 go through this again. 15 MR. ALMQUIST: And on behalf of 16 Dow, we would assert the 17 attorney-client privilege, as well, 18 with any communications with Mr. Rowe. 19 Q. Did the lady, Ms. Fiegener, have anything to 20 say at this meeting, Dr. Rowe? 21 MR. ALMQUIST: Again the same 22 instruction, the same objection. 23 MR. PIERCE: I direct you not to 24 answer anything about our 25 communications. 628 1 Q. Dr. Rowe, are you going to continue to 2 follow the instructions of your counsel? 3 A. I believe that's what I should do. 4 Q. All right, sir. Are you going to follow the 5 instructions from Mr. Almquist who is here as Dow's 6 lawyer today? 7 A. Yes. 8 Q. There were, in fact,conversations that took 9 place while Ms. Fiegener was present with you and 10 Mr. Pierce, were there not? 11 MR. PIERCE: You can answer that. 12 A. Certainly. 13 Q. Okay. And did you look at any documents or 14 papers before or during that meeting or at any time to 15 get ready for resuming your deposition, sir? 16 A. Yes. 17 Q. What did those consist of, Dr. Rowe? 18 A. That 50, 60 pounds of paper that you 19 received. 20 Q. All right, sir. Anything other than the 21 documents you were kind enough to bring today that you 22 looked at before the deposition or for purposes of 23 preparing - 24 A. I beg your pardon. 25 Q. I was wondering, sir, if there were any 629 1 other papers besides those that are in Exhibit 18 and 2 Exhibits 9 through 17 - 3 A. I don't believe so. 4 Q. Have you had any conversations with 5 Mr. Almquist about your testimony either in the past 6 or during this week? 7 A. Not at all. 8 Q. Have you had any letters or written 9 communications from him? 10 A. No. 11 Q. Or from anyother lawyers associated with 12 Dow, that you know of? 13 A. No. 14 Q. Do you understand, Dr. Rowe, that Dow is 15 paying for Mr. Pierce to appear here with you today 16 and yesterday? 17 A. Yes. 18 Q. And who was it, Dr. Rowe, that suggested 19 that or told you that Mr. Pierce would be designated 20 to represent you at these deposition days? 21 A. Nobody told me that he would. They asked me 22 if I would like to have him represent me, and I said 23 yes. 24 Q. So, this came in the form of a - 25 A. Pardon? 630 1 Q. This came in the form of an implied 2 suggestion that you might want to have him represent 3 you, then? 4 MR. PIERCE: Objection to the 5 form. 6 He said it came in the form of a 7 question which he answered. 8 Q. Who asked you that question, Dr. Rowe? 9 A. Mr. Stuart. 10 Q. Duncan Stuart, the lawyer that's an employee 11 of Dow Chemical Company? 12 A. Yes. 13 Q. Same -14 MR. PIERCE: I think we're getting 15 back to the same area of specifics 16 and conversation between attorney and 17 clients. And although I'm not going to 18 interpose objections on behalf of The 19 Dow Chemical Company, I feel that we're 20 skirting an area of privilege which you 21 should not raise at this deposition. 22 And you should be on notice about that, 23 please. 24 Q. Did you have any conversations with Duncan 25 Stuart about your deposition either in October or this 631 1 upcoming one or - the one that we're in here today on? 2 A. No. 3 MR. BLANKS: Okay. I'm going to 4 pass the witness at this time, 5 provisionally given that we still have 6 Exhibit 18 and several thousand pages 7 of documents to peruse and with the 8 reservation that we may need to return 9 and spend a little more time with 10 Dr. Rowe, but not to a certainty. We 11 don't know that until we get a 12 chance to look through all those 13 documents. But I want to give anybody 14 else who wanted to cross-examine 15 Dr. Rowe on asbestos-related matters an 16 opportunity to do that at this time. 17 MR. PIERCE: Okay. Let me 18 also state for the record that if there 19 are a few questions that do come to 20 mind, we'd be very happy to give you 21 written responses - notarized, if you 22 wish - to any of those questions so as 23 to make no unnecessary trips or 24 problems for any of the attorneys 25 involved here. We'd be very happy to 632 1 cooperate with you. 2 MR. BLANKS: Well, depending on 3 the nature of the questions, 4 we'll - 5 MR. PIERCE: Well, of course. 6 Yeah. 7 MR. BLANKS: -- try to work with 8 you on what's appropriate. Very good. 9 Does anyone have any examination 10 for Dr. Rowe? 11 MR. HOBSON: Asbestos. 12 MR. BLANKS: On asbestos? 13 And the room was silent. Well, 14 then, let us move on to the wonderful 15 world of silica. 16 Just another dust, Mr. Pierce. 17 (By Mr. Blanks) 18 Q. Dr. Rowe, we visited at great length, as you 19 know, about your toxicology work and the industrial 20 hygiene program at Dow and the general philosophy that 21 you had and that you observed at Dow concerning 22 occupational health and safety. 23 Would the same general principles that 24 you've described to us about the industrial hygiene 25 program at Dow apply to dealing with any potential 633 1 silica dust hazards that might arise in the Dow 2 premises? 3 A. I think anything that I could say with 4 respect to silica would probably also - or what I 5 would say about asbestos I would probably take about 6 the same position with respect to silica, at least as 7 I understand it. Again, I would - I wish to qualify 8 I'm not an expert at all in the field of silicosis or 9 other such diseases. 10 Q. Certainly you recognized before 1940 in your 11 first few years at Dow that silicosis was a recognized 12 occupational disease among people exposed to 13 sufficient quantities of free silica, didn't you, sir? 14 A. I don't know when I became aware of it. 15 Q. It certainly would have been during the 16 first decade of your work in toxicology? 17 MR. PIERCE: Objection to the 18 terminology "certainly" within those 19 questions. 20 A. I would expect that to be true. 21 Q. All right, sir. And at Dow from time to 22 time abrasive blasting was done using sand as the 23 abrasive, was it not? 24 A. I don't know. 25 Q. Do you know, sir, whether or not Dow 634 1 required even back to 1940 the use of air-supplied 2 hoods to protect workers doing sandblasting on their 3 premises? 4 A. I don't know. 5 Q. Would it be your view, sir, that that would 6 be the appropriate protective device to give a man 7 doing sandblasting? 8 A. I do not know from firsthand experience what 9 kind of equipment was used. 10 Q. Was air-supplied respiratory equipment 11 available in the Dow plants back when you began 12 working there? 13 A. I don't know. 14 Q. You don't recallencountering air-line 15 respirators or - 16 A. I had no personal experience with it. 17 Q. Okay. Do you recall encountering any cases 18 of silicosis among Dow employees during any of the 19 years you were with the company or being advised of 20 any cases? 21 A. I don't recall. 22 Q. Did you ever do any toxicological work in 23 connection with free silica or silica dust while you 24 were at Dow? 25 A. At one time I believe we used free silica as 635 1 a control in an animal experiment - a very cursory 2 experiment - to check on the fibrotic nature of 3 something or other. 4 Q. And were you using silica in that 5 experiment, Dr. Rowe, as a positive control? 6 A. Yes. 7 Q.One where you knew that the control group 8 would developa fibrosis or disease? 9 A. Yes. 10 Q. That's what we mean by "positive control"? 11 A. Well, we -- I don't know that - about the 12 disease part; but it elicited a particular type of 13 response when injected intraperitoneally in rats. And 14 it was rather - a rather unique observation so that 15 you could have something to compare with. 16 Q. Okay. If I could restate it, perhaps, 17 simply, then, you selected silica as your positive 18 control substance because you knew that it would 19 produce an adverse effect in the way you were using 20 it. 21 A. Well, we presumed it would. 22 Q. Okay. And did, indeed, find that it 23 worked. 24 A. Yes. 25 Q. Okay. You were aware at some point from 636 1 your dealings or communiques with the Saranac 2 Laboratory that they had done some work on the 3 inhalation hazards associated with silica, weren't 4 you, Dr. Rowe? 5 A. With whom? 6 Q. That the Saranac Laboratory scientists, 7 Dr. Gardner and his associates, had done some 8 experimental work with silica inhalation. 9 A. Yes. 10 Q. Could you recall approximately when you did 11 the study that used silica as a positive control, 12 Dr. Rowe? 13 A. I don't remember when that was. 14 Q. What was the nature of the rest of the 15 study; do you recall? 16 A. I don't remember the details. As I 17 remember -- What I do remember of it is that there 18 was - that one of the research laboratories had 19 developed something that they thought could be used as 20 a substitute somewhere along the line. And we had no 21 knowledge of what it might do; and, so, we thought we 22 would check it out. And that's what -- I don't even 23 know when it was. 24 Q. Or what they were trying - 25 A. I don't remember what the material was that 637 1 we were checking. Whether it ever came to production 2 or anything or not, I don't know. 3 Q. All right, sir. Do you recollect what you 4 were seeking a substitute for? 5 A. No. That's a blank, also. 6 Q. Okay. Did that lead to any kind of a 7 publication, that experiment that used the silica as a 8 positive control? 9 A. I beg your pardon. 10 Q. Did your work on the - that involved using 11 silica in the experiment, did that lead to any 12 publication? 13 A. No. 14 Q. What was it that gave you the idea to use 15 silica in your experiment, Dr. Rowe? 16 A. The purpose -- This was a totally new 17 technique for us. And if the results were to be any 18 be meaningful, we had to know that - what the lesion 19 that would be produced by silica would look like under 20 those conditions. And if a material that we were 21 testing also produced a similar lesion, we would 22 assume it would behave similar to silica. 23 Q. I see. Was the new technique that of doing 24 the intraperitoneal injection of the irritant? 25 A. Yes. 638 1 Q. So, that would probably place that back in 2 the first few years of your - 3 A. Not necessarily. I just don't know. 4 Q. Okay. I was just thinking there had been 5 some similar experiments done, perhaps at Saranac, 6 using that technique and by Bradley and Patty in 7 Detroit around the late Thirties, if that helps in 8 your recollection. 9 Did you ever consider in the tox. lab or 10 analyze any proposed substitute abrasives to use 11 instead of silica so that you could prevent any 12 possibility of silicosis in your sandblasters? 13 A. As I say, I don't remember what the material 14 we were working with was even designed for at this 15 time. I just -- I've forgotten, I guess. 16 Q. Oh, I'm sorry. I had moved on to wondering 17 if you considered any substitute materials for 18 abrasive blasting use. 19 A. I don't know. It might have been that the 20 material we were working on was a substitute for that 21 for all I know. I just don't know. 22 Q. Okay. Do you know if your industrial 23 hygienists at Dow were doing air monitoring in 24 connection with sandblasting work during that time 25 when you were in charge of the industrial hygienists? 639 1 A. I don't remember. 2 Q. Would you agree with me that in the presence 3 of a visible dust cloud from sandblasting that 4 monitoring of the individuals in that work area would 5 be an appropriate thing for the industrial hygienists 6 to do? 7 MR. PIERCE: I'm going to object 8 to the form. And I'd like to indicate 9 to you that Dr. Rowe answered 10 previously that this was not an area in 11 which he is familiar or expert in. 12 But go ahead. 13 MR. BLANKS: I was simply asking 14 Dr. Rowe as the chief of the toxicology 15 and industrial hygiene department. 16 MR. PIERCE: Well, he's told you 17 that he was administratively head of 18 that, of the industrial hygiene 19 department. 20 A. Well, I would think that that would be 21 appropriate. 22 (By Mr. Blanks) 23 Q. All right, sir. Do you know, Dr. Rowe, if 24 Dow ever banned the use of silica as an abrasive for 25 blasting in its plants, sir? 640 1 A. I don't know. 2 Q. Given the propensity for silica to cause 3 silicosis in workers sufficiently exposed, would it be 4 your view as a toxicologist that it would be desirable 5 to find a substitute abrasive for silica? 6 MR. PIERCE: I'd like to object to 7 the form; argumentative term, 8 "propensity." 9 Go ahead. 10 A. I think it -- It think it would be 11 appropriate. 12 Q. Thank you, sir. Dr. Rowe, do you think it's 13 really fair to - in giving health information to 14 workers to describe the toxic qualities of silica in 15 terms of being merely an irritant to the lung? 16 A. I beg your pardon. Would you please 17 repeat. 18 Q. Yes, sir. If you were -- In the context of 19 a worker's safety manual, is it fair to simply 20 describe the toxic character of silica from 21 sandblasting as being merely an irritant to the lung? 22 A. I don't think that -- I wouldn't think that 23 that would be quite appropriate. It wouldn't be 24 right. 25 Q. And why would information like that be 641 1 deficient? I mean, how would it be deficient? 2 MR. PIERCE: Objection to the form 3 and mischaracterization of his 4 testimony. He never indicated it was 5 deficient. 6 Go ahead. 7 MR. BLANKS: Don't worry, Stan. 8 Dow didn't do this sort of thing. 9 MR. PIERCE: I'm just dealing with 10 the questions you are setting up for 11 this witness. And I'd like him to have 12 an opportunity to answer the questions 13 fairly. That's my only interest here 14 today. 15 (By Mr. Blanks) 16 Q. I'm sorry, sir. Tell the jury why a warning 17 or an instruction that simply describes the toxicity 18 of silica in sandblasting as an irritant is not fair 19 or adequate, if you don't think it's adequate. 20 A. Well, I don't -- I don't think that would be 21 correct. It would not be correct. 22 Q. Would you say, Dr. Rowe, that it would be 23 also incorrect and inadequate to describe the toxicity 24 of asbestos as being merely an irritant to the lung? 25 A. I don't... 642 1 MR. PIERCE: You mean as we sit 2 here today? 3 A. If that's a hypothetical, that's one thing; 4 but I don't believe we ever did that. 5 Q. I don't suggest that you ever did that, 6 sir. It was a hypothetical. 7 Would it be fair to describe the toxic 8 properties of asbestos simply as an irritant to the 9 lung? 10 A. No. 11 MR. ALMQUIST: I think we can just 12 take a couple of minutes before you go 13 on for him to move around a little. 14 MR. BLANKS: Oh. Well, okay. 15 MR. PIERCE: Thank you. 16 MR. BLANKS: You want to get 17 up and stretch just a second, 18 Dr. Rowe? 19 THE WITNESS: Yes. I will. 20 MR. BLANKS: We're about to 21 finish on this. 22 (Brief pause) 23 MR. PIERCE: Are you okay? 24 THE WITNESS: Yeah. 25 MR. PIERCE: Okay. 643 1 THE WITNESS: Got it loosened up 2 again. 3 MR. PIERCE: Good. 4 (By Mr. Blanks) 5 Q. Would you agree, Dr. Rowe, that when 6 sandblasting in an inadequately ventilated area that 7 an air hood or equivalent equipment supplied with 8 filtered air should be worn by the workers? 9 A. If that's what's required to prevent 10 excessive exposure. As I say, I don't know what all 11 is available, what all is required; but my general 12 understanding is that some sort of ventilation to 13 provide reasonably clean air at least would be 14 appropriate. 15 Q. So that the air that the worker is breathing 16 has a very low amount of the pneumoconiosis-causing 17 dust in the air, right? 18 A. Well, as best as possible. 19 MR. BLANKS: All right. I'll pass 20 the witness at this time on this topic 21 for anybody that has cross-examination 22 on silica-related matters. 23 No takers, Dr. Rowe. You want to 24 take a short break at this point or... 25 MR. PIERCE: Unless you're ready 644 1 to finish up. 2 MR. BLANKS: Well, I'm through 3 with that part; and we move on to 4 Chapter III now. 5 MS. KETAI: Let's take a break. 6 MR. POFF: Are we done with 7 silicosis now? 8 MR. BLANKS: I reckon. 9 MS. KETAI: Well, they'll think 10 of something to ask at the break. 11 If you want to leave, well, - 12 MR. BLANKS: All right. Be gone. 13 A pox on you. Get out. You've stayed 14 too long here. 15 MR. POFF: Don't want to stay too 16 long. 17 MS. KETAI: Yeah. Really. Get 18 out of here. 19 MR. BLANKS: Well, let's take a 20 quick break, Dr. Rowe, to stretch your 21 legs, get something to drink, and head 22 on toward the finish line. 23 THE WITNESS: I didn't need to 24 take that stretch, did I? 25 MR. BLANKS: Well, maybe you need 645 1 another one. 2 (AT THIS TIME A BRIEF RECESS WAS 3 TAKEN, AND THE PROCEEDINGS THEREAFTER 4 RESUMED AS FOLLOWS:) 5 6 RE-EXAMINATION BY MR. HOBSON: 7 Q. Dr. Rowe, beginning here on a different 8 topic with you, sir, if we may, in the documents that 9 you produced was a copy of an article that you are 10 shown as a coauthor on with Mr. Wolf and others. It 11 starts on the Bates-numbered page 384 and has 12 Plaintiffs' Exhibit 561000, all caps "DOW," D-O-W, and 13 then in parentheses "AMA-AIH." 14 That is a paper that you were one of the 15 coauthors on; is that right, sir? 16 A. Yes. 17 Q. And this was published in the American 18 Medical Association Archives of Industrial Health, 19 October, 1956, as indicated in the reprint; is that 20 right, sir? 21 A. Yes. 22 Q. Can you tell me if Dow did any other 23 toxicological studies on benzene other than this 24 particular one, sir? 25 A. Not that I recollect. 646 1 Q. There are a number of references in the 2 bibliography to this paper. And the bibliography 3 begins on page 395 and continues to 396. 4 Would it be accurate, sir, to say that you 5 had copies of all of these items that are listed in 6 the bibliography and had an opportunity to read them 7 and review them when you wrote this paper? 8 A. (Reviewing document) I don't remember 9 that - a number of those. 10 Q. Is it the usual practice sir, when, you cite 11 a paper in a bibliography that you've authored that, 12 indeed, you have read that particular paper that 13 you've referenced and would be familiar with it or you 14 wouldn't have put it in the bibliography? 15 A. That's right. 16 Q. There's a series of referenced items that 17 are shown to - or attributed to the American Petroleum 18 Institute that are called Toxicological Reviews for 19 various materials. 20 Do you happen to have a specific 21 recollection of those, Dr. Rowe? 22 A. I don't have a recollection of them. The 23 name rings a bell, so to speak, but I can't even - 24 I've forgotten, I guess. I don't know what they look 25 like. 647 1 Q. Can you give me your best recollection, 2 Dr. Rowe, of when you appreciated that there was some 3 association between benzene exposure and leukemia? 4 A. I don't know when it was. 5 Q. Do you recall any conversations that you had 6 while you were an employee of Dow about benzene and 7 its ability to cause leukemia? 8 A. Yes. 9 Q. Can you tell me, in general, what you 10 recall, sir? 11 A. I just recall that it was rather unique in 12 that category of aromatic hydrocarbons. 13 Q. Is there any way that you could tell me how 14 far back in time, even to the nearest decade, that you 15 would have had these conversations about benzene and 16 leukemia while you were a Dow employee, sir? 17 A. I -- I don't remember the situation, even. 18 Q. If you'll notice, Reference 5 to your 19 bibliography there happens to be one of the A.P.I. 20 Toxicological Reviews, this one for benzene. And it's 21 dated 1948. 22 A. Uh-huh. 23 Q. If -- The fact that it's referenced here as 24 No. 5 -- I think you told me earlier you would have 25 had that document and would have read it. Would a 648 1 reference to leukemia in a document like that be 2 something that you would have likely noticed, or can 3 you tell me? 4 A. I think that it would have been very -- If 5 it was in there. I don't know that. If it had been, 6 I'm sure we would have been - it would have struck us, 7 a note of concern. 8 Q. As of the time you left Dow as their 9 employee, would you give me, if you might recall, sir, 10 your understanding of benzene's ability to cause 11 leukemia at that point in time? 12 A. I guess I really don't know how to answer 13 your question. Try it again on me. 14 Q. All right, sir. I'm trying to find out if 15 you can relate to me -- And I know it's been some time 16 ago but -- Trying to learn what your appreciation was 17 at the time you left Dow Chemical as its employee 18 about benzene and the ability of benzene to cause 19 leukemia in humans. 20 A. Okay. I think that was very well known and 21 long before I left the company, but I can't tell you 22 exactly when I learned it. 23 Q. Is it your understanding, sir, that benzene 24 can cause different kinds of leukemia or one kind of 25 leukemia? Can you help me with that, please? 649 1 A. Well, it -- As I recollect, it does produce 2 leukopenia at some stages. And it's somewhat 3 different in different species, as I remember; but I 4 don't remember the details now. 5 Q. Would you recall, Dr. Rowe, that if you look 6 in the medical and scientific literature as of the 7 time you left Dow that there were reports that benzene 8 could cause various kinds of leukemia in humans? 9 MR. PIERCE: I'm going to object 10 to the form of the question. 11 Would you identify which specific 12 types of leukemia you claim are 13 indicated by the time Dr. Rowe left Dow 14 as in any way related to benzene 15 exposure. 16 MR. HOBSON: Yes, sir. I have in 17 mind the myelogenous leukemias and the 18 lymphatic leukemias. 19 A. I just don't -- I'm not sure of myself. I 20 don't know. 21 (By Mr. Hobson) 22 Q. Do you recall a text called Industrial 23 Toxicology by Hamilton and Hardy? 24 A. Yes. That is quite ancient. 25 Q. I think there were several editions of it; 650 1 and it does go back to the first edition being a very, 2 very long time ago. Would you recall - 3 A. I remember the name, yes. 4 Q. Is that a textbook that you would look at 5 with any kind of authority? 6 A. I would certainly look at it with - because 7 both of those people were very highly respected, I 8 guess, by the community. 9 Q. But as we sit here today, you can't recall 10 ever coming to an appreciation for whether or not 11 benzene can cause any one kind of leukemia or other 12 kinds of leukemia: would that be a fair statement? 13 MR. PIERCE: Asked and answered. 14 A. I've forgotten, I guess. I just don't know 15 now. 16 Q. I noticed in your paper that was published 17 in 1956 that we referred to earlier that you reported 18 on effect levels. And I wondered if you could help me 19 with part of that, Dr. Rowe, and make sure I'm reading 20 it accurately. 21 There's a Table 6 which is on the Bates 22 number 390, page 6 of your article. You see Table 6 23 there, sir? 24 A. Yes. 25 Q. And as I read Table 6, the levels of 651 1 exposure that you tested for the different species, 2 the lowest levels that you used all showed an effect 3 in the species that received the exposure. Is that 4 the correct interpretation of that table, sir? 5 A. Yes. 6 Q. And over -- If you'll look, sir, on Table 7 11, it seemed to be a little bit confusing to me. And 8 I wanted you to explain to me precisely what you meant 9 as one of the authors of this paper. Table 9 which - 10 A. Table 9? 11 Q. I'm sorry. On page 9, Table 11. 12 A. Oh, okay. 13 Q. It says "Comparison of Results of Repeated 14 Vapor Inhalation Studies on Animals Exposed to Benzene 15 and Some Alkylated Benzenes." And under "Material" 16 the first one listed is benzene. And it lists the 17 species tested next. And then there's a column that 18 says "No Effect Level, Parts Per Million"; and you 19 have an entry there for benzene. 20 Could you read that entry and then explain 21 to me how you meant that? 22 A. (Reviewing document) Would you please 23 repeat your question. I - 24 Q. Yes, sir. 25 A. I'm on the right spot here now. 652 1 Q. Okay, sir. Under "No Effect Level, Parts 2 Per Million" in Table 11 - 3 A. Yes. 4 Q. -- on page 9 of the article, in the row for 5 benzene, - 6 A. Yes. 7 Q. -- under that entry, it says "Not found: 8 well below 80." Were you intending to communicate 9 there that you did not determine a no-effect level for 10 benzene in this experiment? 11 A. That's correct. 12 Q. And that you believed that the no-effect 13 level for benzene in this experiment was well below 80 14 parts per million? 15 A. That was our interpretation. 16 Q. Did you ever determine, that you can recall, 17 what a no-effect level for benzene exposure was at Dow 18 Chemical? 19 A. I don't remember. 20 Q. Can you recall, Dr. Rowe, what it was at Dow 21 that led you to do this work on benzene and alkylated 22 benzenes? 23 A. Yes. 24 Q. Would you tell us, please. 25 A. Because of the effect of benzene, which was 653 1 known, the questions came up primarily because we were 2 manufacturing ethyl benzene, styrene, a-methyl 3 styrene, and vinyl toluene and - which are closely 4 related to benzene. And the question logically came 5 up will these materials elicit a response similar to 6 that of benzene. So, in this study we used benzene as 7 a positive control. It was not a study on benzene for 8 the sake of benzene. It was a -- It was simply a 9 control - positive control - for evaluating the 10 potential of the other materials to produce a - a 11 hemolytic - hemological ex - effect and other 12 pathology, as well. 13 Q. Was benzene a product that or material that 14 Dow was using or manufacturing in its facilities in 15 the 1950's about the time this article was written? 16 A. Yes. 17 Q. And I was curious, sir. Wouldyou know if 18 benzene was either used or manufactured by Dow when 19 you joined the company in the late Thirties? 20 A. I'm sorry. I didn't get... 21 Q. Would you recall, sir, if -- Whenyou joined 22 Dow in the late Thirties, was benzene either being 23 used or manufactured at Dow? 24 A. I'm quite certain it was not being 25 manufactured, but I can't answer your question. I 654 1 don't know. 2 Q. Is there a time that - or an approximation 3 of a time that you can give me that you learned that 4 Dow did use benzene in a process at manufacturing 5 activities? 6 A. I can't -- I don't know. 7 Q. So, sometime at least around 1956, though, 8 you know that Dow did use benzene in some of its 9 processes? 10 A. I'm sure Dow used benzene because they used 11 it as an intermediate in the chemical synthesis. I 12 don't know when this started. 13 Q. Was Dow already making some of these 14 alkylated benzenes at the time you did this work in 15 1956? 16 A. Yes. 17 Q. And had they been making some of these 18 alkylated benzenes for a number of years; or would you 19 know, sir? 20 MR. PIERCE: Objection to the 21 form; asked and answered. 22 A. I don't know exactly when these particular 23 benzene derivatives were first produced, but I would 24 I would say that the article was published in '56. 25 So, the work was actually done before that. And I 655 1 don't know just how long or the period of time it took 2 to get all the pathology done and the publication - 3 the reports written. I don't remember. 4 Q. I noted, sir, on page 388 of the -- That's 5 the Bates number. It's page 4 of the article, 6 itself. On the right-hand column - It's numbered 7 paragraph 2 - it talks about odor and irritation 8 experiments. Do you see that entry, sir? 9 A. Yes. 10 Q. It talks about human subjects. Was there an 11 activity in your laboratories that called from time to 12 time for you to use human subjects in your 13 experimentation on toxicology? 14 A. We did some, yes. 15 Q. May I ask, sir, how you - how you did that 16 as far as getting the volunteers? I take it they were 17 volunteers to do the work. 18 A. Yes. I was one of them. We used our 19 professional staff in toxicology, everyone thoroughly 20 understanding the situation. And as far as odor and 21 irritation is concerned, that's a very brief 22 exposure. But this is important to identify. If you 23 have a good warning property for a material, it's much 24 less hazardous than one that has no odor or irritating 25 properties. 656 1 Q. Was there a standard protocol that you used 2 in working with human subjects in the early 1950's, or 3 was this fairly informal in that time period? 4 A. It was quite informal. 5 Q. Would the human subjects always have been 6 those workers there in the toxicological laboratories? 7 A. I -- I think so. 8 Q. I don't see that benzene was used in this 9 particular phase of the experiment. Would that be 10 your understanding of reading this, as well, sir? 11 A. Yes. 12 Q. Was that because you understood that benzene 13 did have the potential to cause serious injury to the 14 bone marrow at this time? 15 A. Yes. 16 Q. Are you aware of any epidemiological studies 17 that Dow did with regard to benzene? 18 A. I don't recall any. 19 Q. Were you involved at all, Dr. Rowe, in any 20 of Dr. Kilian's work with benzene in Texas? 21 A. No. 22 Q. Were you aware of it at the time it was 23 being planned? 24 A. I don't recollect. 25 Q. Are you now aware that Dr. Kilian did do 657 1 some work with benzene and workers at the Texas 2 facilities with regard to chromosomal aberrations? 3 A. I know he was doing that kind of work, but I 4 don't know what materials he was working with. I 5 don't remember, if I did know. 6 Q. Now, the last six to eight years that you 7 were with Dow, would you have been getting reports of 8 what Dr. Kilian was doing in Texas? 9 A. I don't know. 10 Q. Now, Dr. Kilian was a physician, correct? 11 A. Yes. 12 Q. So, he was in a different organization than 13 you were; and, also, he was in Texas? 14 A. Yes. 15 Q. And the last five or six years you were with 16 Dow, what was your position again, sir? 17 A. I was in a section called 18 Health/Environmental Research. 19 Q. And did your job duties in that position 20 have anything to do with what Dr. Kilian would have 21 been planning on doing in Texas? 22 A. I doubt it. 23 Q. Was it your experience, Dr. Rowe, that if a 24 physician were going to carry out the kinds of tests 25 that Dr. Kilian did with regard to chromosomal 658 1 aberrations in benzene exposures that they would need 2 approval for that; or would you know one way or the 3 other? 4 A. I don't know -- I can't recall if I ever did 5 know what he did; so, I don't know. 6 Q. Would you know of a Dr. Ott, O-t-t, at Dow? 7 A. Doc -- Mr. Ott? 8 Q. Is it Mr. Ott? 9 A. Yeah. Yes. 10 Q. How is it that you knew of Mr. Ott? 11 A. He was a biostatistician. He was a 12 statistician, I guess. 13 Q. And an employee of Dow, I take it. 14 A. Yes. 15 Q. We had some testimony earlier about the 16 establishment of an epidemiological program at Dow. 17 Was Mr. Ott part of that program that was 18 established, the epidemiology - 19 A. I believe so. 20 Q. Could you tell me, if you have any opinion, 21 of Mr. Ott's ability to do his work at Dow? 22 A. We considered him to be competent in that 23 in his area. 24 Q. Would Mr. Ott be doing the kind of work that 25 you as a scientist would rely upon? 659 1 A. Well, I don't - I believe Mr. Ott would have 2 been a - the prime investigator. On any of this type 3 of work I believe it would have been in an association 4 with an epidemiologist in the medical department. 5 Q. Would you know of a Mr. Bond or Dr. Bond? 6 A. Who? 7 Q. Bond, B-o-n-d. 8 A. That name is not familiar. 9 MR. BLANKS: James Bond. 10 (By Mr. Hobson) 11 Q. Did you ever have any involvement, Dr. Rowe, 12 with doing any work with benzene in trying to 13 determine the amount of benzene that would be expired 14 by Dow employees after exposure to benzene in their 15 expired air? 16 A. Some work of that nature was done, but I 17 don't recall that benzene was included. It may have 18 been. I don't know. 19 Q. But you never did anything any of that work, 20 yourself? 21 A. No. 22 Q. Or your laboratory? 23 A. Well, I may have participated in some 24 experiments to - in what we would call "metabolic 25 experiments." And I think many of us participated in 660 1 that. But certainly not benzene. 2 Q. But not for benzene? 3 A. No. 4 Q. Are you aware of any human experiments at 5 Dow during your tenure that involved benzene? 6 A. No. 7 Q. And, I mean, you say that rather with some 8 assurances. Why would that be? 9 A. I know of none but - at least in - that I 10 had anything to do with. 11 Q. Would you have been opposed to any kind of 12 human experimentation with benzene while you were a 13 Dow employee? 14 A. I guess it would be -- Generally, yes. But 15 there may have been... Well, possibly some things can 16 happen when you have an accidental exposure, for 17 instance, and you know that it happened. Then it's 18 sometimes advantageous to collect biological samples 19 for purposes of possible use in monitoring when 20 questions are asked and things like this. I don't 21 know that anything purposefully was ever done. 22 Q. Yes, sir. And that was my question, really, 23 would be purpose - purposeful or intentional 24 experimenting - 25 A. I'm not aware of any. 661 1 Q. And you would caution against doing any 2 intentional or purposeful exposures in human 3 experimentation? 4 MR. PIERCE: You mean at any level 5 or - 6 MR. HOBSON: Yes. 7 MR. PIERCE: And what time 8 frame are we - 9 MR. HOBSON: Any time he was a Dow 10 employee, even from the early 11 Thirties. I'm sorry. Late Thirties. 12 A. I don't necessar -- I wouldn't say that I 13 would categorically. It would depend upon the 14 particular circumstances. Certainly it would be done 15 with extreme caution. 16 (By Mr. Hobson) 17 Q. Now, you mentioned some biological 18 monitoring in connection with accidental exposures in 19 talking about benzene. 20 Are you aware of any of that work actually 21 being done at Dow, Dr. Rowe? 22 A. Any of what work? 23 Q. Biological monitoring following an 24 accidental exposure to benzene. 25 A. No, I'm not. 662 1 Q. Let me tell you, sir, that I have heard 2 and I wonder if you can confirm - that there were a 3 number of employees - less than a dozen - who did have 4 an accidental exposure to benzene in the early 1950's 5 that was on the order of a hundred parts per million 6 for some 90 days. Does that have any familiarity to 7 you at all, Dr. Rowe? 8 A. I don't remember that. It may have 9 happened. I don't know. 10 Q. Is that the kind of information that, if it 11 did happen, you would want to have known about and 12 likely would have recalled? 13 A. Well, -14 MR. PIERCE: Object to the 15 speculative nature of that 16 question. 17 But go ahead and answer it. 18 A. I would have expected so. 19 Q. Can you tell me, Dr. Rowe, if in the 20 instance of a carcinogen whether or not you can 21 accurately and reliably determine a no threshold 22 humans? 23 MR. PIERCE: I'm sorry. A what 24 kind of threshold? 25 MR. HOBSON: Accurately and 663 1 reliably establish a no effect 2 threshold. 3 A. I don't know that you can. It comes down to 4 a matter of diminishing effects. And where that curve 5 tails off to zero nobody knows. There are statistical 6 ways of looking at it which I think are fallacious in 7 many instances. 8 (By Mr. Hobson) 9 Q. Would you agree then, sir, that the prudent 10 thing to do is to aim at the complete elimination of 11 exposure as much as you can do? 12 MR. PIERCE: I'm going to object 13 to that question as asked and answered 14 numerous times. The witness has 15 testified that zero exposure is the way 16 to go. I think he has been asked that 17 question at least six or seven times. 18 But once again... 19 A. Well, you certainly do as much as you can to 20 diminish the probability of exposure. It doesn't mean 21 that you can reach zero. There is no such thing if 22 you're going to work with a material and maybe not 23 even if you're not because there are other things 24 around that may elaborate benzene. Who knows? 25 Q. Dr. Rowe, we've previously marked Exhibit 17 664 1 to your deposition. And there's one of these charts 2 that you identified for us. And I see at the top it 3 says "Occupational Exposure." And you've listed a 4 number of materials. And in the center of the middle 5 column is listed benzene (indicating). 6 Can you put in context for me how you would 7 have used this slide in any of your speeches? 8 A. No. I don't -- I would expect it would be 9 in the text - one of those texts that I gave you. 10 Q. It struck me that most, if not all, of these 11 materials that are listed on this chart have been 12 reported as having the potential to cause cancer. I 13 see coal soot, coal tar, petroleum - although that's a 14 very broad term - 15 A. Yeah. That's too broad. 16 Q. -- petroleum coke, wax -again a very broad 17 subject - 18 A. Uh-huh. 19 Q. -- creosote, antharacene. And it 20 continues. 21 MR. PIERCE: And includes iron 22 oxide and wood dust and -23 MR. HOBSON: Yes. 24 MR. PIERCE: -- leather. 25 MR. HOBSON: Well, I think 665 1 it's leather dust. 2 MR. PIERCE: Leather dust. 3 MR. HOBSON: As well as asbestos 4 and chromium and nickel. 5 A. I think it was used as an example of 6 materials that were suspected of being carcinogens. 7 (By Mr. Hobson) 8 Q. Can you give me any kind of a time period 9 when you would have first prepared this particular 10 list, Dr. Rowe? 11 A. I'm -- I'm not certain that I prepared that 12 list. I think maybe that was a copy from a 13 publication. And I don't know just when it was that I 14 used it. It was some years ago. 15 Q. All right, sir. You can't even put it in a 16 decade for me? 17 A. No. 18 Q. I notice the next one that we happen to turn 19 to in this particular exhibit at the top it's titled, 20 "Cancer Triggering Diseases." And on here is 21 pernicious anemia. Would you have had reference to 22 benzene with that, Dr. Rowe? 23 MR. PIERCE: I'm going to object 24 to that question. 25 And I'd like to bring to your 666 1 attention I believe you are completely 2 misinterpreting the term "pernicious 3 anemia." And if you're trying to imply 4 that that's a benzene-related anemia, I 5 just -- That's not my place. I'm 6 sorry. 7 I withdraw that objection. 8 MR. HOBSON: That's what I thought 9 I was asking him. But anyway... 10 A. I don't remember. 11 MR. BLANKS: It was a pernicious 12 objection, as well. 13 MR. PIERCE: I get offended by 14 such obvious scientific inaccuracies. 15 I'm sorry. I should not have reacted 16 that way. 17 (By Mr. Hobson) 18 Q. Can you tell me, Dr. Rowe, if you recall, 19 how you intended to use the term "cancer triggering 20 diseases" that heads up this chart? 21 A. If memory serves me correctly, those were 22 associated with existing conditions in which perhaps 23 they were activators or at least would make a person 24 more susceptible to development of cancer from other 25 stresses or exposures. 667 1 Q. And can you recall, sir, in the instance of 2 listing pernicious anemia - 3 A. I don't recall details on those. 4 Q. All right, sir. There's another chart that 5 makes up Exhibit 17 that appears to show a flow of 6 information. And on the left it says "inheritance," 7 on the right it says "mutagens." And those two arrows 8 seem to come together on "defective chromosomes." 9 Can you tell me how you would have used this 10 chart and, in particular, that part of it, Dr. Rowe? 11 A. I don't remember enough of the detail now to 12 elaborate on it. 13 Q. And would that also be so for the rest of 14 this particular chart? 15 A. I think so, yes. 16 Q. Did you use benzene for purposes other than 17 positive control at your laboratory there at Dow; in 18 other words, did you use it as a solvent or as an 19 analytical agent? 20 A. Possibly. I don't know. I don't remember 21 that we did, but we could have because there are 22 sometimes you have to use benzene. It's a very 23 excellent solvent. If you want to dissolve 24 something that won't dissolve something else, you use 25 benzene. 668 1 Q. Would you recall if you had any kind of a 2 medical surveillance program or a biological 3 monitoring program for your workers there at the 4 laboratory who would have done work such as the 5 benzene experiment that was reported in 1956? 6 MR. PIERCE: You mean -- Excuse 7 me. That question is ambiguous. 8 Do you mean only for the workers 9 who did - who might have done the 10 benzene work or for anybody who worked 11 in that laboratory? 12 MR. HOBSON: I was asking about 13 the ones who did the benzene work. 14 A. No, we did not. 15 (By Mr. Hobson) 16 Q. And, Dr. Rowe, if I could, I want to move to 17 another subject with you. 18 Did you ever do any work in your 19 laboratories at Dow, that you might recall, that dealt 20 with nitrosamines? 21 A. I don't remember working with nitrosamines. 22 Q. Is the area of nitrosamines and 23 carcinogenicity something that you feel that you have 24 knowledge about? 25 A. Those are in the category of aromatic amines 669 1 and the derivatives which as a class are suspect, I 2 guess. We would have recognized that. 3 Q. And the aromatic amines were known to be 4 human carcinogens at least from the late Thirties; is 5 that correct, sir? 6 A. I don't know the dates. Not all aromatic 7 amines are carcinogenic, as I understand; but there 8 are - that is a class of compounds that's associated 9 usually with the dyes that are of concern. 10 Q. And when you say that nitrosamines would be 11 suspect, how did you mean that, sir? 12 A. Well, they belong to an amine group or 13 amine-type compound that - that one would be cautious 14 about. 15 Q. Are you saying that because you know that 16 some of the materials in this family of chemicals have 17 known carcinogenic properties you would be suspicious 18 of the other families until you had evidence that they 19 were not carcinogenic? 20 MR. PIERCE: Objection to the 21 form; leading, leading. 22 Why don't you ask him what he 23 thinks. 24 A. I would -- I would say that it would be 25 analogous to the situation that we discussed earlier 670 1 with respect to benzene and benzene derivatives. 2 Until you know about the others, you don't know. And 3 you have concerns because they belong to a class. 4 Q. And I think you've put in your writings in 5 the past that one of the jobs of a toxicologist is to 6 look at materials that have known properties and 7 extrapolate to other members of that same family of 8 chemicals for a suspicion and then do testing as 9 appropriate. Would that be accurate, sir? 10 MR. PIERCE: I'd like to object to 11 the form of the question as being 12 multipart. 13 A. Well, that, I think, is a reasonable 14 approach to the thing. Until you've tried it, you 15 don't know. 16 Q. And that's what you were doing in 1956 in 17 your publication on benzene and the alkylated 18 benzenes. Yet you knew about benzene. You had 19 suspicions about the other materials. And, so, you 20 tested them to show that they did not affect the bone 21 marrow and the blood as benzene did. Is that right, 22 sir? 23 A. That's correct. 24 MR. PIERCE: I'd like to object to 25 the form as a mischaracterization of 671 1 the nature of that scien - paper which 2 you brought to his attention as an 3 exhibit earlier. 4 But go ahead. 5 A. That was our approach. 6 Q. Would you agree with me, Dr. Rowe, that 7 certain polynuclear aromatic hydrocarbons have been 8 known to be human carcinogens for at least 50 years, 9 if not much longer? 10 A. What -- Would you repeat, please. 11 Q. Yes, sir. Would you agree with me that 12 certain polynuclear aromatic hydrocarbons have been 13 known to cause cancer in humans for at least 50 years, 14 if not longer? 15 A. I don't know the time frame, but I'm aware 16 that - that certain polycyclic's aromatic compounds 17 have been associated with that. 18 Q. One of the materials on your chart that we 19 looked at a moment ago was antharacene. That's a 20 polynuclear aromatic hydrocarbon, is it not? 21 A. Yes. 22 Q. And it has known carcinogenicity, does it 23 not? 24 A. I -- I don't remember offhand that - the 25 information on antharacene. 672 1 Q. Would you recall if Dow either purchased or 2 sold any materials that were rich in polynuclear 3 aromatic hydrocarbons, sir? 4 MR. PIERCE: Objection to the 5 form in the utilization of the vague 6 and ambiguous term "rich." 7 MR. BLANKS: Everybody knows 8 what's rich, who's rich and who's not. 9 MR. PIERCE: Go ahead. 10 A. I don't recollect that they did. 11 Q. Did Dow manufacture any products, to your 12 knowledge or recollection, that were used in the 13 rubber industry? 14 A. We made materials that were used in the - in 15 the synthetic rubber industry. 16 Q. And what kinds of materials would those have 17 been, Dr. Rowe, that you might recall? 18 A. It would be styrene and butadiene. 19 Q. Would you have made any of the other lesser 20 components of synthetic rubber such as antioxidants, 21 the retardants, the short stops, any of the other 22 materials that you might recall that are used in the 23 manufacture of synthetic rubber? 24 MR. PIERCE: Could we ask them 25 individually or -- Change the question 673 1 so it really isn't a compound question 2 with these multi parts. 3 MR. HOBSON: Well, we might be 4 done with the whole topic, depending on 5 the answer. 6 A. I don't know. 7 MR. BLANKS: So, there. 8 MR. PIERCE: You were correct. 9 MR. HOBSON: I think that's all 10 I've got on this subject area. 11 I'll pass the witness for any 12 cross-examination. 13 There being none, I thank you for 14 your patience, Dr. Rowe. And I think 15 that for today's activities we are 16 concluded. Thank you, sir. 17 THE WITNESS: Okay. 18 (AT THIS TIME, 3:36 P.M., THE 19 PROCEEDINGS OF MAY 12, 1993, WERE 20 CONCLUDED.) 21 22 23 24 25 674 1 THE STATE OF ARIZONA: 2 COUNTY OF : 3 4 I, VERALD K. ROWE, hereby certify that I 5 have read the foregoing Vol. II transcript of my 6 testimony, given in the foregoing numbered and styled 7 case, and that same is true and correct to the best of 8 my knowledge and belief. 9 I further certify that any and all 10 corrections have been made on a separate page and 11 initialed by me. 12 This day of , 19 . 13 14 15 VERALD K. ROWE 16 SWORN TO AND SUBSCRIBED BEFORE ME this 17 day of , 19 . 18 19 NOTARY PUBLIC 20 My Commission Expires: 21 22 23 24 25 675 1 THE STATE OF TEXAS : 2 COUNTY OF JEFFERSON: 3 4 I, SANDRA S. SULLIVAN, a Certified Shorthand 5 Reporter for the State of Texas, hereby certify 6 pursuant to the Texas Rules of Civil Procedure and/or 7 agreement of the parties present to the following: 8 9 That this Vol. II deposition transcript is a 10 true record of the testimony given by Verald K. Rowe, 11 the Witness named herein, on May 11, 1993, and May 12, 12 1993, after said Witness was duly resworn by me. 13 14 SWORN TO AND SUBSCRIBED by me on the 15 1st day of June, 1993. 16 17 18 SANDRA S. SULLIVAN, CSR, RPR 19 Certification No.: 2411 Expiration Date: 12-31-93 20 Business Address: Charlotte Smith Reporting, Inc. 21 235 Orleans 22 Telephone: Beaumont, Texas 77701 (409) 839-4407 23 24 25 1 1 B-126,986 2 RUSSELL ALLEN, ET AL * * IN THE DISTRICT COURT OF 3 VS. * JEFFERSON COUNTY, TEXAS * 4 AMERICAN PETROFINA, ET AL * 60TH JUDICIAL DISTRICT 5 A-134,614 6 FRENCH HICKS, ET AL 7* * IN THE DISTRICT COURT OF VS. * JEFFERSON COUNTY, TEXAS 8* BETHLEHEM STEEL CORP., * 9 ET AL * 58TH JUDICIAL DISTRICT 10 B-141,242 11 ROOSEVELT SCOTT 12 * * IN THE DISTRICT COURT OF VS. * JEFFERSON COUNTY, TEXAS 13 * AMERICAN OPTICAL CORP., * 14 ET AL * 60TH JUDICIAL DISTRICT 15 A-138,633 16 MARGARET FAULKNER, ET AL * IN THE DISTRICT COURT OF 17 * VS. 18 * JEFFERSON COUNTY, TEXAS * AKRON CHEMICAL CO., ET AL * 58TH JUDICIAL DISTRICT 19 20 A-136,143 21 KEITH GIBLIN, ET AL * * IN THE DISTRICT COURT OF 22 VS. * JEFFERSON COUNTY, TEXAS * 23 MOBIL OIL CORPORATION, * ET AL * 58TH JUDICIAL DISTRICT 24 VIDEO DEPOSITION OF VERALD K. ROWE 25 TAKEN ON OCTOBER 1, 1992, AND OCTOBER 2, 1992 2 1 E-141,216 2 JOSEPH E. BARNARD, ET UX * IN THE DISTRICT COURT OF * 3 VS. * JEFFERSON COUNTY, TEXAS * 4 ALLIED-SIGNAL, INC., ET AL * 172ND JUDICIAL DISTRICT 5 A-140,498 6 JOYCE A. BORNE, ET AL 7* * IN THE DISTRICT COURT OF VS. 8 * JEFFERSON COUNTY, TEXAS * ALLIED-SIGNAL, INC., ET AL * 58TH JUDICIAL DISTRICT 9 10 11 12 13 14 VIDEO DEPOSITION OF 15 16 VERALD K. ROWE 17 18 19 20 On October 1, 1992, and October 2, 1992, at 21 approximately 9:00 a.m., the videotaped deposition of 22 Verald K. Rowe, a Witness in the above-styled cause, 23 was taken at the instance of the Plaintiffs at the 24 Sheraton Greenway, 2510 W. Greenway, Phoenix, Arizona, 25 pursuant to Stipulation of Counsel contained herein. 3 1 Those counsel present, representing their 2 respective client or clients in the cause of action or 3 causes of action in which he/she has filed an answer, 4 were as follows: 5 JOSEPH C. BLANKS 6 Reaud, Morgan & Quinn 801 Laurel Street 7 Beaumont, Texas 77701 8 AND 9 HERSCHEL L. HOBSON Hobson & Ferguson 10 2190 Harrison Street Beaumont, Texas 77701 11 Counsel for Plaintiffs 12 STANLEY PIERCE 13 Rivkin, Radler & Kremer EAB Plaza 14 Uniondale, New York 11556-0111 15 Counsel for Witness VERALD K. ROWE 16 ARTHUR R. ALMQUIST 17 Mehaffy & Weber 500 Dallas Street, Suite 1200 18 Houston, Texas 77002 19 Counsel for Defendants B.F. GOODRICH COMPANY, 20 THE DOW CHEMICAL COMPANY, KEENE CORPORATION, OLIN CORPORATION, and 21 W. R. GRACE & COMPANY 22 SCOTT C. WALLACE Haley, Davis, Wren, Bristow & Rasner 23 United Bank Plaza, Suite 300 510 North Valley Mills Drive 24 Waco, Texas 76710 25 Counsel for Defendant C. P. HALL COMPANY 4 1 RYAN A. BEASON Funderburk & Funderburk 2 2777 Allen Parkway, Suite 1080 Houston, Texas 77019 3 Counsel for Defendants 4 WGM SAFETY CORPORATION, d/b/a WILLISON SAFETY PRODUCTS, AND 5 JOHN CRANE, INC. 6 LISA A. KETAI Hirsch, Glover, Robinson & Sheiness 7 917 Franklin at Main Houston, Texas 77002 8 Counsel for Defendants 9 SURVIVAIR, KELCO SALES AND ENGINEERING, INC., 10 AND RUEMELIN 11 PAULA M. ROMBERG Vial, Hamilton, Koch & Knox 12 1717 Main Street, Suite 4400 Dallas, Texas 75201 13 Counsel for Defendants 14 A.M.F., INC., AND B & B ENGINEERING & SUPPLY 15 FRANK A. POFF 16 Gooding & Dodson 300 Texarkana National Bank Building 17 P. O. Box 1877 Texarkana, Texas 75504-1877 18 Counsel for Defendant 19 GREFCO, INC. 20 STEVEN L. RUSSELL Vinson & Elkins, L.L.P. 21 3700 Trammell Crow Center 2001 Ross Avenue 22 Dallas, Texas 75201-2916 23 Counsel for Defendant U.S. SILICA COMPANY, f/k/a 24 PENNSYLVANIA GLASS SAND CORPORATION 25 5 1 KENNETH T. KOONCE, JR. Strasburger & Price, L.L.P. 2 901 Main Street, Suite 4300 Dallas, Texas 75202 3 Counsel for Defendant 4 TRAVELERS INSURANCE COMPANY 5 JAMES R. SCRIVNER Smith, Shew & Scrivner, P.C. 6 120 East 14th Street P.O. Box 1373 7 Ada, Oklahoma 74821-1373 8 Counsel for Defendant HARWICK CHEMICAL CORPORATION 9 DAVID E. GROVES 10 Benckenstein, Norvell, Bernsen & Nathan 2615 Calder Avenue, Suite 600 11 P.O. Box 551 Beaumont, Texas 77704 12 Counsel for Defendants 13 MOBIL OIL CORPORATION, FINA OIL & CHEMICAL COMPANY, HARWICK CHEMICAL 14 COMPANY, VISTA CHEMICAL COMPANY, ALLIED CHEMICAL CORPORATION, AMOCO OIL 15 CORPORATION, E. I. Du PONT DE NEMOURS & COMPANY, INC., MCKESSON CHEMICAL 16 CORPORATION, NECHES BUTANE, INC., OXY U.S.A., INC., PETRO-TEX CHEMICAL 17 CORPORATION, PHILLIPS 66 COMPANY, SHELL OIL COMPANY, SUN OIL COMPANY, TEXACO 18 REFINING & MARKETING, INC., UNION OIL COMPANY OF CALIFORNIA, AND PULMOSAN 19 SAFETY EQUIPMENT CORPORATION 20 EARLE A. HERBERT Alenik & Associates 21 Summit Plaza West 12 Greenway Plaza, Suite 1200 22 Houston, Texas 77046 23 Counsel for Defendants BIG THREE INDUSTRIES, INC. 24 BOWEN TOOLS, INC. 25 6 1 KIMBERLY BISHOP Martin & Herring 2 1302 McGowen Avenue Houston, Texas 77004 3 Counsel for Defendant 4 FLEXO PRODUCTS, INC. 5 DAVID P. COTELLESSE Ellison, Schweinle, Parish & Beerbower, P.C. 6 3800 First City Tower 1001 Fannin Street 7 Houston, Texas 77002 8 Counsel for Defendants AMERICAN PETROLEUM INSTITUTE, 9 CHEMICAL MANUFACTURERS ASSOCIATION, NATIONAL PETROLEUM REFINERS 10 ASSOCIATION, AND TEXAS CHEMICAL COUNCIL 11 JIM I. GRAVES Mehaffy & Weber 12 2615 Calder & Tenth, Eighth Floor P.O. Box 16 13 Beaumont, Texas 77704 14 Counsel for Defendant CLEMTEX, LTD. 15 C. VICTOR HALEY 16 Fairchild, Price, Russell, Thomas & Haley 413 Shelbyville Street 17 Center, Texas 75935-1336 18 Counsel for Defendants BINKS MANUFACTURING COMPANY, INC., AND 19 THORPE INSULATION SERVICE COMPANY 20 JEFF HARTSELL Edwards & Calvert 21 1800 West Loop South, Suite 1500 Houston, Texas 77027 22 Counsel for Defendant 23 DRAGO SUPPLY COMPANY 24 25 7 1 D. ALLAN JONES Orgain, Bell & Tucker 2 470 Orleans Street, Fourth Floor Beaumont, Texas 77701 3 Counsel for Defendants 4 ARCO CHEMICAL COMPANY, ATLANTIC RICHFIELD COMPANY, CHEVRON U.S.A., 5 INC., GULF STATES UTILITIES COMPANY, LUBRIZOL CORPORATION, MONSANTO COMPANY, 6 NECHES BUTANE, INC., OCCIDENTAL CHEMICAL CORPORATION, PURE OIL 7 CORPORATION, SUN OIL COMPANY, TEMPLE-EASTEX, INC., TEMPLE-INLAND, 8 INC., UNION OIL COMPANY OF CALIFORNIA, UNOCAL CORPORATION, AND USI CHEMICALS 9 COMPANY, INC., a/k/a QUANTUM CHEMICAL 10 CARL R. DAWSON Ryan & Winchester 11 770 South Post Oak Lane, Suite 101 Houston, Texas 77056 12 Counsel for Defendant 13 SCOTT AVIATION, INC. 14 L. J. (MIKE) DECKER, III Tekell, Book, Matthews & Limmer 15 3600 Two Houston Center 909 Fannin 16 Houston, Texas 77010 17 Counsel for Defendants THE TACKABERRY COMPANY AND 18 TRIPLE B CORPORATION 19 20 21 22 23 24 25 8 1 RONALD T. HANCOCK Hays, McConn, Price & Pickering 2 400 Citicorp Center 1200 Smith Street 3 Houston, Texas 77002 4 Counsel for Defendants MINE SAFETY APPLIANCES COMPANY, AMOCO 5 CHEMICAL COMPANY, AMOCO CORPORATION, AMOCO OIL COMPANY, BASF CORPORATION, 6 CHEVRON CHEMICAL COMPANY, CHEVRON U.S.A., CITIES SERVICE OIL AND GAS 7 CORPORATION a/k/a OXY USA, CONOCO, CROWN CENTRAL PETROLEUM CORPORATION, 8 EASTMAN KODAK COMPANY, ETHYL CORPORATION, EXXON CORPORATION, GULF 9 OIL CORPORATION, HOECHST CELANESE CHEMICAL GROUP, HUMBLE OIL AND REFINING 10 CORPORATION, LUBRIZOL CORPORATION, MARATHON OIL COMPANY, PHILLIPS 66, 11 PHILLIPS CHEMICAL COMPANY, PHILLIPS PETROLEUM COMPANY, PURE OIL 12 CORPORATION, ROHM AND HAAS BAYPORT, ROHM AND HAAS TEXAS, INC., SHELL OIL 13 COMPANY, STAR ENTERPRISE, SUN OIL COMPANY, TEMPLE-INLAND FOREST PRODUCTS, 14 TENNECO OIL COMPANY, TEXACO CHEMICAL COMPANY, TEXACO CHEMICAL INTERNATIONAL 15 TRADER, TEXACO REFINING & MARKETING, TEXAS CITY REFINING, INC., UNION OIL 16 COMPANY OF CALIFORNIA, AND UNOCAL CORPORATION 17 SANDRA S. SULLIVAN, CSR, RPR 18 Charlotte Smith Reporting, Inc. 235 Orleans Street 19 Beaumont, Texas 77701 20 VIDEOTAPE OPERATOR/TECHNICIAN: 21 PAUL ROBICHAU 2190 Harrison Street 22 Beaumont, Texas 77701 23 24 25 9 1 IN ATTENDANCE: 2 DUNCAN STUART LINDA M. FIEGENER The Dow Chemical Company Legal Department 3 2030 Dow Center Midland, Michigan The Dow Chemical Company A.P. Beutel Building 4 Freeport, Texas 77541 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 1 I NDEX 2 DEPOSITION OF VERALD K. ROWE 3 October 1, 1992, and October 2, 1992 4 PAGE 5 OCTOBER 1, 1992 6 EXAMINATION BY MR. HOBSON 21 - 173 7 OCTOBER 2, 1992 8 EXAMINATION BY MR. HOBSON (Cont'd) 173 - 247 EXAMINATION BY MR. BLANKS 247 - 346 9 EXH I BITS 10 (Exhibit Volume I) 11 PLAINTIFFS' EXHIBIT NO. DESCRIPTION PAGE 12 ROWE 1 Document Entitled 13 14 15 ROWE 2 16 "Plaintiff's Notice of Intent to Take Video Deposition of Verald K. Rowe with Subpoena Duces Tecum" 241 Document Entitled, "-Icities" of Toxicology," by B. A. Schwetz 179 17 ROWE 3 Document Bearing the Notation 18 "Occupational Exposure Limits," 181 19 ROWE 4 Document Entitled, "Pharmacokinetic Studies in 20 Evaluation of the Toxicological and Environmental Hazard of 21 Chemicals," by P. J. Gehring, P. G. Watanabe, and G. E. Blau 182 22 ROWE 5 Document Entitled, "Mission of 23 Health and Environmental Research," by V. K. Rowe 183 24 25 11 1 ROWE 6 Hand-Written Document with the Notation "History - 1933" in 2 Upper Left-Hand Corner 184 3 ROWE 7 Document Entitled, "Environmental Health," and 4 Bearing the Notation "(Rough Draft)" 187 5 ROWE 8 Document Entitled, 6 "Environmental Health Guide, Role of Health and 7 Environmental Research (H&ER), V. K. Rowe" 188 8 141005 Curriculum Vitae of Verald 9 ROWE VK Keith Rowe 103 10 400600 DOW Document Entitled, "The Response Attending Exposure 11 of Laboratory Animals to Vapors of Methyl Bromide," 12 by D. D. Irish, E. M. Adams, H. C. Spencer, and V. K. Rowe 13 481100 DOW Document Entitled, 14 (JIHT) "Toxicological Studies 189 on Certain Commercial 15 Silicones and Hydrolyzable Silane Intermediates," by 16 V. K. Rowe, H. C. Spencer, and S. L. Bass 202 17 421200 DOW Document Entitled, "The 18 (JIHT) Response of Laboratory Animals to Monomeric 19 Styrene," by H. C. Spencer, D. D. Irish, E. M. Adams, 20 and V. K. Rowe 195 21 480621 DOW Document Entitled, "Toxicological Studies on 22 Certain Commercial Silicones," by V. K. Rowe, 23 H. C. Spencer, and S. L. Bass 197 24 25 12 1 511100 DOW Document Entitled, "Vapor Toxicity of Trichloroethylene 2 Determined by Experiments on Laboratory Animals," by E. M. 3 Adams, H. C. Spencer, V. K. Rowe, D. D. McCollister, and 4 D. D. Irish 207 5 520700 DOW Document Entitled, "Vapor Toxicity of Carbon Tetrachloride 6 Determined by Experiments on Laboratory Animals," by E. M. 7 Adams, H. C. Spencer, V. K. Rowe, D. D. McCollister, and 8 D. D. Irish 208 9 551000 FDCLJ Document Entitled "Procedures for the Appraisal of the 10 Toxicity of Chemicals in Foods, Drugs and Cosmetics" 209 11 560425 CARB Document Entitled "The 12 Interpretation of Threshold Limits for Inhalation of 13 Chemical Substances, excluding Mineral Dusts, with 14 Recommendations for Improvement" 210 15 (Exhibit Volume II) 16 560425 DOW Document Entitled, "Toxicological Information 17 Toxicological Information Useful for Industrial Hygiene 18 Purposes with Emphasis on Topical Contact," by V. K. 1 9 Rowe 21 3 20 560800 DOW Document Entitled, "Toxicity (AMA-AIH) of Paradichlorobenzene," by 21 R. L. Hollingsworth, V. K. Rowe, F. Oyen, H. R. Hoyle, 22 and H. C. Spencer 216 23 24 25 13 1 561000 DOW Document Entitled, (AMA-AIH) "Toxicological Studies of 2 Certain Alkylated Benzenes and Benzene," by M. A. 3 Wolfe, V. K. Rowe, D. D. McCollister, R. L. 4 Hollingsworth, and F. Oyen 218 5 581000 DOW Document Entitled, "Toxicity (AIHAJ) of 1,1,1-Trichloroethane as 6 Determined on Laboratory Animals and Human Subjects," 7 by T. R. Torkelson, F. Oyen, D. D. McCollister, and V. K. 8 Rowe 217 9 590425 DOW Document Entitled, "The Toxicological Basis of 10 Threshold Limit Values: 2. Pathological and Biochemical 11 Criteria," by V. K. Rowe, M. A. Wolf, C. S. Weil, and 12 H. F. Smyth, Jr. 220 13 600000 DOW Document Entitled, "Symposium on Toxicology, Its Effect Upon 14 Our Industrial and Domestic Lives" 221 15 601200 DOW Document Entitled, "Evaluating 16 the (I&EC) Industrial Hazards of New Chemicals," by K. J. 17 Olson and V. K. Rowe 225 18 611000 DOW Document Entitled, "The Toxicity (AIHAJ) of Vinyl 19 Chlorine as Determined by Repeated Exposure of Laboratory 20 Animals," by T. R. Torkelson, F. Oyen, and V. K. Rowe 226 21 670300 USSR Document Entitled, "Industrial 22 Toxicology and the Prevention of Occupational Poisoinings in 23 the Chemical Industry," by A. A. Letavet and A. I. Korbakova 228 24 730409 DOW Document Entitled "Toxicology 25 for Dow Employees" 230 14 1 611000 DOW Document Entitled, "Evaluating (RSCH) 2 the Toxicity and Hazards of Chemicals," by K. J. Olson and V. K. Rowe 227 3 790518 DOW Document Entitled, "Dedication 4 Address, Northwestern University Cancer Center," by Philip 5 Handler, President, National Academy of Sciences, 18 May 1979 332 6 780814 DOW Document Entitled, "'Clinical 7 Toxicology' Viewed from an Industrial Setting," by P. J. 8 Gehring 331 9 740000 WHO Document Entitled "Assessment 546 of the Carcinogenicity and 10 Mutagenicity of Chemicals" 331 11 760600 DOW Document Entitled, "A Historical Account of Dow's 12 Environmental Stewardship," by Eugene E. Kenaga 330 13 (Exhibit Volume III) 14 740919 DOW Document Entitled, "Some Basic 15 Concepts of Toxicology and Some Thoughts about the Development 16 and Use of Toxicological Information," by V. K. Rowe 333 17 751021 DOW Document Entitled, "Concerns 18 of Industry Related to Carcinogenic Hazards," by P. J. 19 Gehring and V. K. Rowe 334 20 760517 DOW Document Entitled, "39 Years of Dow Industrial Toxicology 21 and Industrial Hygiene," by V. K. Rowe 311 22 770000 DOW Document Entitled, "40 Years 23 of Dow Industrial Toxicology and Industrial Hygiene," by 24 V. K. Rowe 314 25 15 1 780000 NIH Document Entitled "Asbestos 1594 Exposure, What it Means, What 2 to Do" 335 3 780421 DOW Document Entitled, "Overview - Science, Society and Health 4 Risk Control," by V. K. Rowe 336 5 780900 NIOSH Document Entitled "NIOSH/OSHA Pocket Guide to Chemical 6 Hazards" 336 7 790423 C&EN Document Entitled "Hands On! Lecture and Lab Sessions 8 Reinforce the Latest Information with Practical 9 Applications" 337 10 790900 DOW Document Entitled, "Industrial Hygiene -- Truly 11 an Interdisciplinary Science," by V. K. Rowe 12 791004 DOW Document Entitled 337 13 "Environmentally Induced Cancer...Separating Truth 14 from Myth," by Dr. Harry Demopoulos 338 15 801013 DOW Letter Dated October 13, 16 1980, on Dow Chemical U.S.A. Letterhead, Addressed to 17 Peter Infante, from John R. Venable, and Attachments 339 18 801100 ACSH Document Entitled "Califano's 19 Curious Cancer Estimates" 341 20 810000 FCT Publication Entitled "Twenty Years of Toxicology" 340 21 820200 OH&S Document Entitled, 22 "Untangling the Asbestos Mess," by Deborah Schechter 341 23 840209 NIOSH Document Entitled "Current 24 Intelligence Bulletin 41, 1,3-Butadiene" 342 25 16 1 841017 DOW Document Entitled "Toxicology in Michigan 2 Today Risk Assessment in Toxicology: Yesterday, 3 Today and Tomorrow" 343 4 841018 DOW Document Entitled "'Experimentation, 5 Experience, and the Media,' A Symposium of 6 Media, Science, Industry and Public Officials" 7 343 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 1 ST I P U LAT I O N 2 3 IT IS STIPULATED AND AGREED BY COUNSEL FOR 4 THE PARTIES HERETO: 5 That the deposition of the Witness named 6 herein is taken pursuant to Notice; 7 That the Witness may sign the deposition 8 before any duly authorized and acting Notary Public 9 for the appropriate area in which signature is 10 obtained; 11 That this deposition, or any part thereof, 12 when so taken may be used upon the trial of this cause 13 with the same force and effect as if the Witness were 14 present in court and testifying in person; 15 That all objections, other than those that 16 relate to the form of the question and responsiveness 17 of the answer, are hereby preserved and may be made at 18 the time any testimony herein is sought to be offered 19 upon the trial of this cause, despite no objection 20 having been made at the time the testimony was taken; 21 That the deposition is to be videotaped by 22 Paul Robichau; 23 That Sandra S. Sullivan, a Certified 24 Shorthand Reporter in and for the State of Texas, may 25 act as a Certified Shorthand Reporter in and for the 18 1 State of Arizona for the purposes of swearing the 2 Witness in this deposition; 3 That the original transcript of the 4 deposition, pursuant to Rule 206 of the Texas Rules of 5 Civil Procedure, will be given to Joseph C. Blanks for 6 safekeeping and use at trial. In the event the 7 original deposition is unavailable at the time of 8 trial, an unsigned copy of the transcript may be 9 utilized in lieu thereof. 10 11 * * * * * * * 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 1 (REPORTER'S NOTE: WHEN ASKED BY 2 THE REPORTER TO STATE ANY STIPULATIONS 3 THEY MAY HAVE FOR PURPOSES OF TAKING 4 THE DEPOSITION, COUNSEL STATED AS 5 FOLLOWS:) 6 7 MR. HOBSON: Pursuant to the 8 Rules. 9 And would the witness like to 10 read and sign his deposition? 11 MR. PIERCE: Yes, he would. 12 Additionally, I'd like to make a 13 statement for the record at this time 14 that this witness is not and has never 15 been an officer, managing agent, or 16 director of The Dow Chemical Company 17 nor of any other defendant in this 18 matter; that the witness has not been 19 properly served with any subpoena but 20 is here voluntarily as a fact witness; 21 and, additionally, that the witness 22 does have a hearing problem. He would 23 appreciate it if the questioner would 24 speak up and also speak slowly and try 25 to enunciate carefully when asking your 20 1 questions. Also, please try to face 2 the witness when questioning him. And, 3 additionally, in particular, please, 4 everyone, try to avoid rustling papers 5 because this can interfere with his 6 hearing aids. 7 MR. BLANKS: If you'd kindly 8 identify yourself so we know who you 9 are, sir. 10 MR. PIERCE: I am Stanley Pierce 11 with the law firm Rivkin, Radler & 12 Kremer; and I am V. K. Rowe's attorney. 13 MR. BLANKS: Well, also for the 14 record, Mr. Rowe was not served with a 15 subpoena, although he certainly could 16 have been, at the request of Dow 17 Chemical Company's counsel who assured 18 us that he would appear through their 19 cooperation pursuant to the notice as 20 though he had been served and 21 presumably would also bring with him 22 such documents as were addressed in the 23 subpoena duces tecum that was part of 24 the notice. And our reason for not 25 serving this gentleman was to 21 1 accommodate him and Dow's attorneys. 2 MR. PIERCE: He is present. 3 MR. BLANKS: Very well. 4 And thank you, Mr. Rowe, for 5 joining us today. 6 7 VERALD K. ROWE, 8 having been duly sworn, testified as follows, to-wit: 9 EXAMINATION BY MR. HOBSON: 10 Q. Would you introduce yourself, please, sir. 11 A. My name is Verald Keith Rowe. 12 Q. And where do you reside, please, sir? 13 A. I reside in Sun City, Arizona. 14 Q. I understand it's "Dr. Rowe." I understand 15 that you have an honorary doctorate degree. Is that 16 correct? 17 A. That is correct. 18 Q. Dr. Rowe, I understand that you are a 19 retired employee of The Dow Chemical Company. Is that 20 right? 21 A. Would you please repeat. 22 Q. Yes, sir. I understand that you are a 23 retired employee of The Dow Chemical Company. 24 A. That is correct. 25 Q. Would you tell us, sir, when you began 22 1 working for Dow. 2 A. I began working for Dow the 1st of November, 3 1937. 4 Q. And what was your first job with Dow, 5 please, sir? 6 A. I was classified as a biochemist. 7 Q. What were the duties of a biochemist, the 8 position that you had when you began in 1937 with 9 Dow? 10 A. I was one of the - 11 MR. PIERCE: I would like to 12 object to the form of the question. 13 Are you asking Dr. Rowe what his 14 specific duties are or all biochemists' 15 within Dow at that time? 16 Q. I would like to know what you did, 17 Dr. Rowe. Let me do the question again, please, sir. 18 Would you tell us, Dr. Rowe, what you did as 19 a biochemist when you first joined Dow in 1937. 20 A. I was working mostly with the animals in 21 experimental work that was in progress. 22 Q. In what way, sir? 23 A. Handling, treating. 24 Q. Did you do anything other than handle and 25 treat the animals as a biochemist when you first began 23 1 working in 1937? 2 A. Recorded observations and then pertinent 3 information relative to the work that was to be done. 4 Q. Tell us what you mean by "treated" in regard 5 to these animals. 6 A. Administering various materials to the 7 animals. 8 Q. What group or organization within Dow 9 Chemical Company were you working within in 1937 when 10 you began? 11 A. The biochemical research laboratory. 12 Q. Was the biochemical research laboratory 13 already established when you began working in 1937? 14 A. Yes. 15 Q. Do you have any understanding as to when the 16 biochemical research laboratory at Dow would have been 17 begun - would have started? 18 A. Yes. 19 Q. When is that, sir? 20 A. The first person involved in that was hired 21 in the fall of 1933. 22 Q. Based on your work and your review of 23 records at Dow, do you have some understanding of the 24 history of the biochemical research laboratory from 25 1933 until 1937 when you began? 24 1 MR. PIERCE: Objection to the form 2 of the question. 3 A. Yes. 4 Q. Would you tell me your understanding of who 5 it was that began the biochemical research laboratory 6 at Dow, if you know, and who it was that was involved 7 in the management of that group, sir, from 1933 to 8 1937. 9 MR. PIERCE: Continue the 10 objection. 11 A. Dr. Don D. Irish was the director of the 12 laboratory. 13 Q. Would you know, sir, for how long Dr. Irish 14 was the director of the laboratory? 15 A. I do not know the date he retired from the 16 laboratory. 17 Q. Would you know approximately when he 18 retired? 19 A. It would have been in the neighborhood of 20 1970. 21 Q. Would you know if Dr. Irish is still living? 22 A. He is not. 23 Q. Was Dr. Irish in the same position as 24 director of the laboratory from 1933 until his 25 retirement? 25 1 A. Yes. 2 Q. Do you have an understanding of what 3 Dr. Irish's training was, sir, his educational 4 background? 5 A. He was trained as a biochemist. 6 Q. Would you know where he was trained? 7 A. University of Cincinnati. 8 Q. Did Dr. Irish, to your knowledge, have any 9 assistants in 1937 who helped him in the management of 10 the biochemical research laboratory? 11 A. Yes. 12 Q. Who would those have been, please, sir? 13 A. Dr. Edwin E. Dunn and Dr. Edgar M.Adams. 14 Q. What's your understanding of Dr. Dunn's 15 title in 1937, sir? 16 A. He was assistant director of the laboratory 17 and in charge of microbiological research. 18 Q. And Dr. Adams: would you tell me what you 19 understood his job to be in 1937, please. 20 A. He was in charge of toxicology section. 21 Q. Were there only those two sections in 1937 22 of the biological research laboratory, microbiology 23 and toxicology? 24 A. No. 25 Q. What others existed,please? 26 1 A. There were subsections under Dr. Dunn having 2 to do with preservation of wood and work with 3 development of agricultural chemicals. 4 Q. Any other subsections? 5 A. Not that I recall. 6 Q. Which one of these groups or which groups 7 did you work in, sir, in 1937? 8 A. In the toxicology group. 9 Q. To whom did you report when you began in 10 1937, please? 11 A. Dr. Adams. 12 Q. And then Dr. Adams would have reported to 13 Dr. Irish, is that correct, as you understood it? 14 MR. PIERCE: Objection to the 15 form. 16 Q. I'm sorry. I didn't get your answer, sir. 17 A. Yes. 18 Q. Would you give me some of the details of the 19 kinds of things you were doing in 1937 at the 20 biochemical research laboratory. 21 A. We were studying the toxicology of many 22 materials of interest to the company. 23 Q. Would you give me some examples of those 24 materials, please. 25 MR. PIERCE: This continues 27 1 through - up through 1937? 2 MR. HOBSON: That's right. 3 A. At that time we were working with - with 4 the - with phenols, chlorophenols, methyl bromide. I 5 don't recall what else was going on at that time. 6 Those were major areas. 7 (By Mr. Hobson) 8 Q. What kinds of work activities did you, 9 yourself, have in this 1937-1938 time period shortly 10 after you joined Dow in any action involving phenols? 11 A. We would be administering various phenols to 12 animals. 13 Q. What kind of animals were you using in this 14 time period, please, sir? 15 A. Rats, guinea pigs, rabbits. 16 Q. And would you describe the kind of testing 17 that you were doing with the phenol on rats, guinea 18 pigs, and rabbits, please. 19 A. We were studying the effect of the materials 20 and the amounts that were required to produce whatever 21 effect it did, what that effect was, and by various 22 routes of administration. 23 Q. Would you give me your best recollection of 24 the various routes of administration that you were 25 testing in this 1937 and shortly thereafter time 28 1 period for these materials on these animals. 2 A. Would you please rephrase that or - 3 Q. Yes, sir. I'd like to know just what it was 4 you were doing with phenol and the rats, the guinea 5 pigs, and the rabbits. How were you doing whatever it 6 was you were doing with this material and these 7 animals? 8 A. We would administer the material by stomach 9 tube - various dosages. We would apply it to the 10 skin, measure rate of absorptions. And with those 11 materials, eye irritation. We did not do any vapor 12 work with those. 13 Q. Did the biochemical research laboratory have 14 the capability of working with vapors and dosing 15 animals with vapors in the 1937 time period when you 16 began with Dow? 17 A. Yes. 18 MR. PIERCE: Objection to the form 19 of the question. 20 Q. What vapors do you recall that you worked 21 with in the biochemical research laboratory within, 22 say, the first two years that you went to work for 23 Dow? 24 MR. PIERCE: Objection to the form 25 of the question. 29 1 But answer it if it's answerable. 2 A. Methyl bromide. 3 Q. Would you describe what kind of work you did 4 evaluating the vapor of methyl bromide in this 1937 5 and shortly thereafter time period, please. 6 A. We exposed animals to various concentrations 7 for various periods of time. 8 Q. What kinds of time periods would you have 9 been looking at, please? 10 A. Anything from minutes to months. 11 Q. Were you familiar with any other 12 similar-type toxicity testing laboratories existing in 13 the Country in the 1937-1938 time period? 14 A. Yes. 15 Q. Where were some of the other laboratories in 16 that era, to your knowledge? 17 A. There was a laboratory at Mellon Institute. 18 There was work going on at the University of 19 Cincinnati, Saranac Laboratory, laboratories of the 20 U.S. Public Health Service, and Du Pont. 21 Q. Were you familiar with the Mellon 22 Institute's toxicological testing laboratory shortly 23 after you went to work for Dow? 24 A. No. 25 Q. When would you recollect that you learned 30 1 about Mellon Institute's laboratories, if you ever 2 did? 3 A. I couldn't tell you. 4 Q. Thirties? Forties? Fifties? 5 A. The Forties. 6 Q. In the Forties when you learned of Mellon 7 Institute's activities, what did you learn? 8 A. I don't know. 9 Q. Where was it located? 10 A. In Pittsburgh. 11 Q. Was Mellon -- Did you have any understanding 12 of its affiliation or how it got its support? 13 A. Yes. 14 Q. What did you understand, sir? 15 A. It was supported by... I will say Allied. 16 Q. Allied Chemical Company? 17 A. I believe it was Allied. 18 MR. PIERCE: Mr. Hobson, I know 19 we're reserving objections other than 20 to form until trial time; but I must 21 say I don't understand why you are 22 bothering Dr. Rowe with questions about 23 what his understanding is of the 24 affiliation of Mellon in the 1940's. 25 How this could be even vaguely relevant 31 1 or likely to lead to information that 2 you can utilize is just beyond me. And 3 I think perhaps if we got to the issues 4 in this matter, we'd all be happier. 5 MR. HOBSON: Well, I believe I'm 6 there. 7 A. I wish to correct that. 8 (By Mr. Hobson) 9 Q. Yes, sir? 10 A. I don't -- It was Carbide - Carbide - United 11 Carbide and Carbon at that time. 12 Q. United Carbon and Carbide? 13 A. I believe it was what we used to call as 14 Carbide - Carbon and Carbide. 15 Q. And not Allied? 16 A. I'm not sure. 17 Q. Did you visit the Mellon Institute at any 18 time? 19 A. Yes. 20 Q. What is approximately the earliest time you 21 can remember visiting the Mellon Institute? 22 A. I can't remember. 23 Q. Would it have been in the Forties, likely, 24 you think? 25 MR. PIERCE: Objection to the 32 1 form; asked and answered. 2 A. Probably more likely in the Fifties. 3 Q. What is your earliest understanding, as best 4 you can recollect now, of what kind of work Mellon 5 Institute was doing in the area of toxicology? 6 A. They were doing much the same sort of thing 7 we were. But the first things that, I believe, were 8 they chlorinated aliphatic hydrocarbons. 9 Q. Was there any particular person that you 10 knew of by name at the Mellon Institute once you 11 became familiar with its activities? 12 A. Henry F. Smyth, Dr. Smyth. 13 Q. Can you recall approximately when it was you 14 met Dr. Smyth? 15 A. Probably about 1940. 16 Q. Can you tell me how it was you came to meet 17 Dr. Smyth, please? 18 A. It was at a convention. 19 Q. Would you remember which one? 20 A. The A.I.H.A. 21 Q. And that's the American Industrial Hygiene 22 Association? 23 A. Correct. 24 Q. Do you have a memory in your mind of 25 actually meeting Dr. Smyth at that meeting? 33 1 A. Yes. 2 Q. Tell me what you recall about the 3 circumstances that led up to meeting Dr. Smyth and 4 what you recall from that meeting, please. 5 A. I was introduced to him by Dr. Irish. 6 Q. Anything else you recall? 7 A. No. 8 Q. And was Dr. Smyth at that time already at 9 Mellon Institute, to yourrecollection? 10 A. Yes. 11 Q. Do you have any understanding of what 12 Dr. Smyth was doing, what his job involved at Mellon 13 Institute? 14 A. He was -- He was the agent in charge of the 15 sponsors' activity in Mellon Institute. He was also 16 associated with the University of Pittsburgh, I 17 believe; but he was a director of that operation. 18 Q. "That operation" being the Mellon Institute? 19 A. Mellon Institute's toxicology program 20 sponsored by Carbide. 21 Q. Was it your impression at the time that you 22 were introduced to Dr. Smyth by Dr. Irish that 23 Dr. Irish previously knew Dr. Smyth? 24 MR. PIERCE: Are you asking his 25 impression 52 years ago when they met? 34 1 MR. HOBSON: Sure. 2 A. Yes. 3 (By Mr. Hobson) 4 Q. Would you recall if Dr. Smyth ever came to 5 Dow's operations? 6 A. Yes. 7 Q. What's the earliest recollection you have of 8 Dr. Smyth coming to any of Dow's operations? 9 A. I don't remember. 10 Q. I take it it would have been sometime after 11 you met Dr. Smyth. 12 A. Yes. 13 Q. Would you have any understanding as to any 14 of the reasons or the purposes of Dr. Smyth's visits 15 to any of Dow's operations? 16 MR. PIERCE: Objection to the form 17 of the question. 18 Are you asking this witness if he 19 knows what wasin Dr.Smyth's mind? 20 MR. HOBSON: No. I think the 21 question was clear.I'm asking for his 22 understandings. 23 A. Would you please rephrase it or restate it. 24 (By Mr. Hobson) 25 Q. Yes, sir. Would you have any understanding 35 1 as to why Dr. Smyth would have been coming to visit 2 any of Dow's operations? 3 MR. PIERCE: Continue the 4 objection. 5 A. I don't know. 6 Q. Was Dr. Smyth at Dow's operations more than 7 once, as you recall? 8 A. Yes. 9 Q. Could you give me some idea of how many 10 times you recall Dr. Smyth might have visited Dow's 11 operations? 12 A. Several times. 13 Q. And can you give me a time period at all of 14 when these visits - these several visits - of 15 Dr. Smyth's would have occurred? 16 A. It would have been during the Forties and 17 Fifties. 18 Q. Can you tell me any of the people that 19 Dr. Smyth would have been meeting at - when he visited 20 Dow's facilities? 21 MR. PIERCE: Objection to the form 22 of the question. 23 A. Well, he would have met with Dr. Irish, 24 Dr. Adams, with me; but I don't know that it was all 25 the time or every time. 36 1 Q. Do you recall what the reason or what kind 2 of business was being transacted when Dr. Smyth would 3 come and meet with you at Dow? 4 A. I can't say for sure, no. 5 Q. You just don't remember any at all at this 6 point in time? 7 A. (Shaking head negatively) The only thing 8 that I remember on that was there was some discussions 9 with respect to the chlorinated aliphatics and the 10 work that was going on in both places. 11 Q. Was it your understanding that there was 12 some coordination between Dow's work and Mellon's work 13 on this group of chemicals? 14 A. None whatsoever. 15 Q. You were merely exchanging information about 16 what each facility was doing? 17 A. Yes. 18 Q. Do you recall, Dr. Rowe, visiting the 19 University of Cincinnati's toxicology testing 20 facilities? 21 A. Yes. 22 Q. What is your earliest recognition -- What is 23 your earliest memory of the time that you visited the 24 University of Cincinnati's toxicity testing 25 facilities? 37 1 A. It would have been in the late Forties or 2 early Fifties. 3 Q. Was there someone at the University of 4 Cincinnati's facilities that you dealt with there, 5 that you recall? 6 A. Yes. 7 Q. Who was the person or persons at that 8 location? 9 A. Dr. Kehoe. 10 Q. How is it that you came to know Dr. Kehoe? 11 A. I was introduced to him by Dr. Irish. 12 Q. And would you recall the circumstances of 13 you meeting Dr. Kehoe? 14 A. I believe it was at his laboratory. 15 Q. There in Cincinnati? 16 A. Yes. 17 Q. And did Dr. Irish and you then travel to the 18 University of Cincinnati? 19 A. Yes. 20 Q. What do you recall about the capabilities 21 for toxicity testing at the University of Cincinnati 22 in this early time period when you first met 23 Dr. Kehoe? 24 MR. PIERCE: Objection to the form 25 of the question. It's vague and 38 1 overbroad. 2 But go ahead and answer. 3 A. We were concerned or interested in how they 4 were handling materials that - particularly vapors 5 which were flammable. And they had been doing some 6 work on something or other. I don't remember what. 7 Q. Was the University of Cincinnati doing work 8 under contract for Dow? 9 A. No. 10 Q. What is it that led to this visit? Why was 11 this interest on the part of you and Dr. Irish in 12 the - these flammable vapors? 13 A. We were interested in seeing how or what 14 kind of chambers and how they had constructed their 15 chambers to avoid having internal explosions. 16 Q. Was it that you were considering doing some 17 work at Dow and wanted to utilize any design 18 advantages that Dr. Kehoe's group might have had? 19 A. Yes. 20 Q. Did you have -- Do you now have any 21 understanding as to when the toxicity program 22 toxicity testing program - at the University of 23 Cincinnati began? 24 A. I do not. 25 Q. What was your impression of Dr. Kehoe as a 39 1 scientist when you met him and after you visited with 2 him over the years? 3 A. I had great respect for him. 4 Q. Was there anyone else at the University of 5 Cincinnati that you came to know over the years 6 besides Dr. Kehoe? 7 A. Dr. Deichmann. 8 Q. And could you spell that for me, please, 9 sir? 10 A. D-e-i-c-h-m-a-n-n. 11 Q. And would you tell me your understanding of 12 what Dr. Deichmann's position was at the University of 13 Cincinnati. 14 A. I do not know. 15 Q. Was Dr. Deichmann always at the University 16 of Cincinnati when you knew him? 17 A. No. 18 Q. Where did he go after or before he was at 19 the University of Cincinnati? 20 A. He was at Miami after that. Whether he was 21 somewhere else in between, I don't know. 22 Q. Would you recall Dr. Deichmann's first name? 23 A. William. 24 Q. Anyone else at the University of Cincinnati 25 you recall? 40 1 A. I don't recall. 2 Q. Did Dow utilize outside laboratories for 3 contract work in the area of toxicology at any of the 4 time you were an employee of Dow? 5 A. Yes. 6 Q. Going back as early in time as you can, 7 would you tell me who you recall being utilized by Dow 8 for contract toxicity testing. 9 A. We used Dr. Kligman, Dr. Clauder for work on 10 skin sensitization. 11 Q. And those are two different people, Kligman 12 and Clauder? 13 A. They were -- They were both, I believe, with 14 the University of Pennsylvania. 15 Q. And what time period would you be referring 16 to, Dr. Rowe? 17 A. It would have been in the Fifties. 18 Q. And what kind of work do you recall being 19 done at the University of Pennsylvania? 20 A. Pharmacological work. 21 Q. What kinds of materials? 22 MR. PIERCE: Objection to the form 23 of the question. 24 A. I don't recall specifics. Lots of materials 25 that we were interested in and that - where we 41 1 anticipated extensive skin contact as a result of 2 their use or handling. 3 Q. Did any of the work at the University of 4 Pennsylvania, to your knowledge, involve any human 5 experimentation? 6 A. Yes. 7 Q. Would you give me your understanding or 8 recollection of what that was, please. 9 A. Oh, it was skin irritation, skin fatiguing 10 experimentation. 11 Q. Were you, yourself, directly involved in 12 that work at the University of Pennsylvania as far as 13 overseeing it or helping design the projects? 14 A. Yes. 15 Q. What was your role? 16 A. I acted as the Dow contact person. 17 MR. PIERCE: Are we going to get 18 into any relevant questions today, 19 anything to do with asbestos which is 20 my understanding of what this is 21 about? 22 MR. HOBSON: I think these are 23 relevant questions. 24 MR. PIERCE: I'll let it go a 25 while longer. 42 1 MR. HOBSON: I'm sorry. I forgot 2 where we were. Did we have a question 3 or an answer; or where were we, 4 Madam Reporter? 5 THE REPORTER: "QUESTION: What 6 was your role? 7 ANSWER: I acted as the Dow 8 contact person." 9 10 (By Mr. Hobson) 11 Q. When you say that, "the Dow contact person 12 how do you mean that, Dr. Rowe? 13 A. I really don't know what you mean. 14 Q. What would have been your day-to-day 15 involvement with the people at the University of 16 Pennsylvania? What would you have been doing? 17 A. I did not have day-to-day contact with them. 18 Q. How often would the contact have been? 19 A. The beginning and end of a particular study. 20 Q. What would you have been doing in the 21 beginning of a study? 22 MR. PIERCE: Objection to the 23 form. Indications are that many 24 compounds are involved, many studies. 25 This question is really unanswerable, 43 1 unintelligible. 2 But do the best you can under 3 those circumstances, if you can. 4 A. We merely submitted materials to the 5 laboratory and asked for an evaluation of their 6 potential to cause skin fatiguing or skin irritation 7 or skin sensitization. 8 Q. Would you have been involved in designing 9 the protocol that was going to be used at the 10 University of Pennsylvania? 11 MR. PIERCE: Objection to the 12 form. 13 A. In some instances, perhaps. 14 Q. Would you, yourself, have done that, sir? 15 A. Yes, with the approval of medical 16 department. 17 Q. Whose medical department? 18 A. Our medical department. 19 Q. "Ours" being Dow? 20 A. Yes. 21 Q. And then you say you would have had 22 involvement at the end of the study. What involvement 23 would that have been, sir? 24 A. I would receive the report. 25 Q. Was there any other group at the University 44 1 of Pennsylvania that you recall Dow did contract 2 toxicity testing with? 3 A. No. 4 Q. What other contract laboratories, if any, 5 did Dow work with over the years while you were a Dow 6 employee? 7 A. We worked with the University of Rochester 8 toxicology program, University of California, 9 Industrial Biotest Laboratories, Hazleton 10 Laboratories, Food and Drug Research laboratory. 11 That's all I can recall. 12 Q. Would you have done any work with the 13 University of Rochester in the Forties and Fifties? 14 A. I don't remember the dates. 15 Q. What about the University of California, 16 would you have done any work with the University of 17 California in the Forties and Fifties? 18 A. I don't know. 19 Q. I'd like to come back to the University of 20 Cincinnati, if I could, for a moment, Dr. Rowe. 21 You told me that you knew Dr. Kehoe and 22 Dr. Deichmann. 23 Do you recall any other names of people at 24 the University of Cincinnati? 25 MR. PIERCE: Objection to the 45 1 form; asked and answered. 2 A. I don't recall. 3 Q. Would you recall a Dr. F. F. Heyroth? I 4 don't know if I'm saying it right. H-e-y-r-o-t-h. 5 A. Yes. I do. 6 Q. Was he at the University of Cincinnati? 7 A. I don't remember. 8 Q. How is it that you recall or what 9 recollection do you have of Dr. Heyroth or Hayroth? 10 A. I have very little recollection. I know the 11 name. I remember meeting him, but I have never had 12 any associations otherwise. 13 Q. What about Dr. A. W. Horton? Could be 14 Westley Horton, I believe. 15 A. I don't -- I don't know him. 16 Q. E. J. Largent? L-a-r-g-e-n-t. 17 A. Yes. 18 Q. What do you recall of Dr. Largent? 19 A. Nothing specific. 20 Q. Would you recall that he was at the 21 University of Cincinnati? 22 A. I don't remember. 23 Q. How about Dr. J. J. either "Phar" or 24 "Phair," P-h-a-i-r? 25 A. I do not know him. 46 1 Q. Raymond Suskind? Dr. Suskind? 2 A. Yes. 3 Q. Was he at the University of Cincinnati, or 4 would you know? 5 A. Yes. He was. 6 Q. Did you know Dr. Suskind? 7 A. Casually. 8 Q. Can you recall how you met Dr. Suskind? 9 A. No. 10 Q. Do you have any recollection of what 11 activities Dr. Suskind carried on during his 12 professional career? 13 A. Dr. Suskind was involved in epidemiological 14 study of persons exposed at the nitro plant for 15 2,4,5-T and as - we were interested in that sort of 16 thing and had contact with Dr. Suskind. 17 Q. Can you give me the approximate time period 18 for that work, please, sir? 19 A. No. 20 Q. Not even a decade? 21 A. Late Fifties, early Sixties, somewhere along 22 that line. 23 Q. You said "the nitro plant"? 24 A. I believe that was the nitro division of 25 nitro Virginia plant for - at Monsanto. 47 1 Q. At the University of Rochester, do you 2 remember any of the individuals you dealt with there 3 when it came to toxicity testing? 4 A. Dr. Hodge. Another person whose name 5 escapes me. 6 Q. Would you recall Dr. Hodge's first name, 7 sir? 8 A. Harold. 9 MR. PIERCE: Is the purpose of 10 this deposition to go through every 11 name that Dr. Rowe knows in his long 12 and esteemed career in toxicology? 13 MR. HOBSON: Well, the purpose of 14 the deposition is to do discovery. I 15 don't think we'll get to every person 16 that he knows; but certainly the ones 17 that I'm interested in I hope we will. 18 MR. PIERCE: Well, you're 19 certainly trying to get to every person 20 he knows. 21 MR. HOBSON: I suspect Dr. Rowe 22 knows a lot more people than we'll have 23 time to get to in two days. 24 (By Mr. Hobson) 25 Q. Would you recall Dr. Kligman's first name at 48 1 the University of Pennsylvania, sir? 2 A. I heard people call him "Al." Whether it 3 was "Alfred" or what, I don't know. 4 Q. You said Dr. Clauder there, as well. Would 5 you recall how that's spelled, sir? 6 A. C-l-a-u-d-e-r. 7 Q. And would you recall his first name? 8 A. Joseph. 9 Q. Nelson? 10 A. Joseph. 11 Q. Joseph. I'm sorry. Would you recall what 12 kind of work was being done at the University of 13 Rochester for Dow Chemical Company? 14 A. I'm not sure. 15 Q. Can you give me an approximate time frame 16 for the work at the University of Rochester that Dow 17 had conducted there? 18 A. No. 19 Q. Would it have been prior to World War II? 20 A. No. 21 Q. You said that Dow did utilize the services 22 of the University of California for contract 23 toxicological work; is that right? 24 A. Yes. 25 Q. Was that the University of California at 49 1 San Francisco? 2 A. Yes. 3 Q. I know you've published with Dr. Charles 4 Hines. Is that one of the people you worked with 5 there? 6 A. Yes. 7 Q. Who elseat the University of California, 8 San Francisco, do you recall that was involved in that 9 work for Dow? 10 A. I don't know. 11 Q. Was there someone else and you just don't 12 recall? 13 A. I don't know. 14 Q. Did you personally know Dr. Hines? 15 A. Yes. 16 Q. All right. I guess it's "Hine." 17 A. Hine. 18 Q. Do you recall how you met Dr. Hine? 19 A. Yes. 20 Q. How is that, sir? 21 A. When Dr. Hine was setting up his toxicology 22 laboratory, he visited our laboratory to see what we 23 had and how we were operating. That's the first time 24 that I recollect meeting Dr. Hine. 25 Q. Could you give me an approximate time frame 50 1 for that visit from Dr. Hine? 2 A. Probably in the Fifties. Early Fifties, 3 perhaps. 4 Q. Do you recall the name "Dr. Mayo Soley, 5 Soley, S-o-l-e-y? 6 A. No. 7 Q. Is it accurate, sir, that the work that Dow 8 would have done with Dr. Hine at the University of 9 California at San Francisco would have been after 10 Dr. Hine came to visit your facilities? 11 A. Yes. 12 Q. For approximately what time period did you 13 work with Dr. Hine, sir? 14 A. I don't remember. 15 Q. Would it have been over the course of a 16 number of years? 17 A. Yes. 18 Q. Can you give us yourimpression of 19 Dr. Hine's ability as a toxicologist? 20 MR. PIERCE: Objection to the form 21 of the question. 22 A. I always thought of him as a very competent 23 person. 24 Q. You and he coauthored a scientific treatise, 25 correct? 51 1 A. Yes. 2 Q. Did you and he have any disputes about the 3 content of the scientific treatise that would call 4 into question his judgment as a toxicologist? 5 MR. PIERCE: Objection to the form 6 of the question. 7 I don't understand. Are you 8 asking him whether there was a language 9 distinction between them as any authors 10 would on any paper? That question is 11 completely vague and unanswerable. 12 But give it your best. 13 A. I don't recall. 14 Q. You don't recall that there was any dispute? 15 A. (Shaking head negatively) 16 Q. Correct? 17 A. I don't recall any dispute. 18 Q. You told us earlier, I think, Dr. Rowe, that 19 you were aware of activities at Saranac Laboratory; i 20 that right? 21 MR. PIERCE: Objection to the 22 form. 23 The witness never testified to any 24 such thing, Mr. Hobson. 25 MR. HOBSON: Well, then he can 52 1 tell me I'm wrong. 2 MR. PIERCE: I don't want you 3 putting words into the mouth of the 4 witness. Please ask a question that's 5 appropriate. 6 A. Would you repeat the question, please. 7 (By Mr. Hobson) 8 Q. Yes, sir. I asked you earlier in the 9 deposition about were you aware that there were 10 toxicity testing activities going on around the 11 Country. And as I recall, it was about the time you 12 began at Dow. And I think one of the places you 13 mentioned to me was Saranac Labs. Is that correct? 14 A. (Nodding affirmatively) 15 MR. PIERCE: Objection to the form 16 and objection to the characterization 17 completely improper of the witness' 18 prior testimony. 19 Q. Was that a "yes," Dr. Rowe? 20 A. I was aware of Saranac Laboratory, yes. 21 Q. Would you tell me, sir, what awareness you 22 had of Saranac Laboratory in this time period of the 23 late Thirties? 24 A. I don't know what the dates were; but I was 25 aware, as almost anyone in the field was aware, that 53 1 they were the outstanding laboratory for the 2 evaluation of particulates. 3 Q. And did you know Dr. Gardner, Dr. Leroy 4 Gardner? 5 A. I did not. 6 Q. Did you know any of the personnel at Saranac 7 Lake throughout your career? 8 A. I knew Vorwald that was - who was there 9 later. 10 Q. Do you recall how you met Dr. Vorwald? 11 A. No, I don't. 12 Q. Did you ever visit Saranac Laboratory? 13 A. Yes. 14 Q. Can you recall approximately when that was, 15 sir? 16 A. No, I can't. 17 Q. I take it it was after the War, though? 18 MR. PIERCE: Objection to the 19 form. 20 Q. World War II? 21 A. I think so. 22 Q. Was it after Dr. Vorwald became the director 23 of that laboratory? 24 A. I can't recall. 25 Q. Would you give me your recollection of what 54 1 you recall seeing when you visited Saranac. 2 MR. PIERCE: Objection to the form 3 of the question. 4 A. I observed their inhalation chambers. That 5 was our prime purpose, seeing what kind of chambers 6 they had to study particulates. 7 Q. Did Dow have the ability to do toxicity 8 testing involving exposures to particulates? 9 A. Not -- Not appreciably, no. 10 Q. Did Dow, while you were an employee, develop 11 that ability at any time? 12 A. No. 13 Q. Did you at Dow consider developing 14 inhalation toxicity testing ability for particulates? 15 MR. PIERCE: Objection to the form 16 of the question. 17 A. I think we did. 18 Q. Can you remember about when that was going 19 on, sir? 20 A. Probably in the early Fifties. 21 Q. Why was this being considered, if you know, 22 sir, at Dow? 23 A. We were wondering whether we should try to 24 design it into a laboratory to do that. 25 Q. Was this a project that you were involved 55 1 with, yourself, Dr. Rowe? 2 A. I don't understand your question now. 3 Q. Did you, yourself, get involved in the 4 consideration as to whether or not Dow would develop 5 the ability to do toxicity testing for the inhalation 6 of particulates? 7 A. Yes. 8 Q. What was your perception of why you would 9 want to consider it - consider having this ability? 10 A. Well, from time to time we had materials 11 that people were exposed to that were particulates. 12 Q. Can you recall, sir, what the reasoning was 13 that the decision was made not to incorporate 14 inhalation toxicity testing abilities for particulates 15 into Dow's activities? 16 A. Yes. 17 Q. What was that, please? 18 A. The facilities are - to handle this properly 19 are quite complicated, somewhat beyond our own 20 capabilities, expensive. And inasmuch as there were 21 facilities that could handle anything that we might 22 want, we felt it was a nonjustifiable expense. 23 Q. Do you mean by that, sir, that there were 24 contract laboratories that had the capacity to do the 25 work that you could employ, -- 56 1 MR. PIERCE: Objection. 2 Q. -- was available? 3 MR. PIERCE: Objection to the 4 form. 5 A. We felt we could employ Saranac 6 laboratories, if we wished. 7 Q. Was it your impression at the time that 8 Saranac Laboratories had the capacity to do whatever 9 toxicity testing you at Dow would need for the 10 forseeable future? 11 MR. PIERCE: At what time are we 12 now talking about? 13 MR. HOBSON: In the early Fifties 14 when Dow was considering developing 15 inhalation toxicity capability for 16 particulates. 17 A. We felt that they were capable. 18 (By Mr. Hobson) 19 Q. Do you recall when you visited Saranac or 20 when you investigated the work at Saranac that there 21 was capacity to do toxicity testing that was not being 22 utilized? 23 MR. PIERCE: Objection to the form 24 of the question, the characterization 25 of the witness' previous statement. 57 1 Go ahead. 2 A. I don't remember. 3 Q. Was this consideration by Dow about whether 4 to do - develop the ability to do inhalation of 5 particulates in-house or to use contractors something 6 that you did alone or did you work with someone else 7 in this consideration? 8 A. No. 9 Q. You worked -- You did it alone? 10 A. We had no contact with anyone else. 11 Q. No, sir. I mean within Dow. Was it a 12 committee, or did you act alone? 13 A. Oh, no. Dr. Irish was very much involved. 14 I was -- I was just accompanying him. 15 Q. Would you recall if there was any 16 correspondence within the company about this 17 consideration of developing particulate inhalation 18 testing ability? 19 A. No. 20 Q. Just don't recall one way or the other? 21 A. I don't -- I don't know. 22 Q. Was it your usual practice when you visited 23 another facility to write some sort of a trip report 24 or memorandum to file or to report to your 25 supervisors? 58 1 MR. PIERCE: Objection to the form 2 of the question. 3 A. I wouldn't -- No, not necessarily. 4 Q. Might or might not? 5 A. Yes. 6 Q. You mentioned that when you first got to Dow 7 or shortly thereafter, you recognized that Du Pont had 8 toxicity testing capabilities; is that right? 9 A. Yes. 10 Q. Can you recall if you ever visited any of 11 Du Pont's laboratories? 12 A. Yes. 13 Q. What would be your earliest recollection of 14 visiting a Du Pont laboratory facility? 15 A. I can't tell you. I don't know. 16 Q. Do you think it was before World War II? 17 A. I don't know. 18 Q. What facilities of Du Pont do you remember 19 visiting? 20 A. We visited Haskell Laboratory. 21 Q. You say "we." Do you recall thatit was 22 someone other than yourself who also made these visits 23 to Du Pont? 24 A. Dr. Irish. 25 Q. Did you visit any facility for Du Pont other 59 1 than Haskell Laboratories, that you recall? 2 A. I don't -- No. 3 Q. Can you give me some idea of about how many 4 times you visited Haskell Laboratories while you were 5 a Dow employee? 6 A. One time. 7 Q. Once. Do you recall who any of the people 8 were at Haskell Laboratories that you would have met 9 with? 10 A. Yes. 11 Q. Who would that be, please? 12 A. Dr. John Zapp. 13 Q. Anyone else? 14 A. Yes. Lester Clayton. Another whose name 15 escapes me. 16 Q. What -- Do you have a specific recollection 17 of visiting Haskell Laboratory this one occasion? 18 A. Would you restate that, please. 19 Q. Yes, sir. Do you have a picture in your 20 mind's eye of the visit to Haskell Laboratories that 21 you made? 22 A. Vaguely. 23 Q. What do you recall seeing at Haskell 24 Laboratories? What's your impression of what you 25 recall from that visit? 60 1 A. We were primarily interested in their method 2 of testing blood pressure on animals. 3 Q. Did you tour their facilities? 4 A. I don't recollect. I would presumethat we 5 walked through. 6 Q. While you were a Dow employee, Dr. Rowe, do 7 you remember visiting any other corporate toxicity 8 testing laboratories? 9 A. Yes. 10 Q. Who else's would you recallhaving visited, 11 please? 12 A. Carbide's. 13 Q. And where would that have beenlocated, sir? 14 A. The Bushey Run. 15 Q. And would you recall about when that would 16 have been? 17 A. No. 18 Q. Did you ever visit Chevron's toxicity 19 testing laboratory in the San Francisco area? 20 A. No. 21 Q. When you were working with Dr. Hine at the 22 University of California, San Francisco, were you 23 aware that he also did work for Shell Oil Company? 24 A. No. I didn't know what he -- I did not know 25 anything about his other work. 61 1 Q. Have you ever had any meetings with anyone 2 from Shell concerning toxicology? 3 MR. PIERCE: Objection to the form 4 of the question. 5 You mean in all his conferences 6 over 52 years was there anybody there 7 that - in the audience from Shell? I 8 mean just -- Why don't you be more 9 specific in the question so that the 10 witness can really deal with it. 11 Q. Can you help me out there, Dr. Rowe? 12 A. I knew Norman White, Dr. White. 13 Q. How is it that you came to know Dr. White 14 from Shell? 15 A. We were in school together. 16 Q. And that was at Iowa? 17 A. Yes. 18 Q. And were you also there with Dr. Berry, 19 Clyde Berry? 20 A. No. I don't believe Clyde was there then. 21 Q. You know Dr. Berry, though? 22 A. Yes. 23 Q. Have you had professional association with 24 Dr. Berry over the years? 25 A. Yes. I guess so. 62 1 Q. Is that more just from your professional 2 association work, or did you have contact with 3 Dr. Berry directly associated with your work at The 4 Dow Chemical Company? 5 A. I don't recollect that - any of that. 6 Q. Mostly just general professional-type work? 7 A. Yes. 8 Q. Did Dr. White ever have any work, to your 9 knowledge, that directly was for or under contract to 10 Dow Chemical Company? 11 A. I don't recall. 12 Q. Did you have any professional... 13 THE WITNESS: (Conferring 14 privately with Mr. Pierce) 15 MR. PIERCE: If you get tired -16 MR. BLANKS: Ready to take a -17 MR. HOBSON: And, Doctor, let me 18 say that if at any time you need to 19 take a break for any reason, you speak 20 up and I'll be kind enough to stop my 21 questioning. 22 THE WITNESS: Okay. Thank you. 23 MR. BLANKS: Don't wait for the 24 lawyers to ask for it. It's your call, 25 sir. 63 1 MR. HOBSON: That's right. 2 (AT THIS TIME A BRIEF RECESS WAS 3 TAKEN, AND THE PROCEEDINGS THEREAFTER 4 RESUMED AS FOLLOWS:) 5 (By Mr. Hobson) 6 Q. Now, Dr. Rowe, I think you said that you 7 began working in the Dow biochemical research 8 laboratory in 1937. Would you be kind enough to tell 9 me who else you recall other than the directors that 10 you've named was also working there at that time. 11 A. Dr. Howard Spencer. Fred Meyer. 12 Q. I'm sorry. I didn't hear you. 13 A. Fred Meyer. All you're considering is 14 professional people? 15 Q. Yes, sir. The professionals. 16 A. Okay. I don't remember the others. 17 Q. You told us about Dr. Edwin Dunn, one of the 18 assistant directors. Would you know if Dr. Dunn is 19 still living? 20 A. No, he is not. 21 Q. Dr. Adams: is he still living? 22 A. He is not. 23 Q. Is Dr. Spencer living? 24 A. Yes. 25 Q. Would you know Dr. Spencer's whereabouts? 64 1 A. Yes. 2 Q. Where does he live, sir? 3 A. Sun City. 4 Q. Ah. A neighbor? 5 A. No. 6 Q. Do you see Dr. Spencer from time to time? 7 A. Yes. 8 Q. Is his health good? 9 A. No. 10 Q. Would you know, sir, one way or the other if 11 he has a serious illness? Is it life-threatening; 12 would you know? 13 A. Well, if cancer is threatening, it is. 14 Q. I'm sorry to hear that. Mr. Meyer: is he 15 still living? 16 A. I don't know. 17 Q. But those are the people that you recall, 18 the professionals who were there in 1937? 19 A. (No response) 20 Q. Would you tell me if you recall or whom you 21 recall the other professionals would have been that 22 would have joined the biochemical research laboratory 23 after 1937 and approximately when they would have 24 joined. 25 A. I can't answer that. I don't know. 65 1 Q. I take it that there were additions to the 2 staff over the years. 3 A. Yes. 4 Q. I'm not asking you to name every one, but 5 can you think back in time and sort of come forward 6 from 1937 and tell me the people - the professionals 7 that you remember that joined the biochemical research 8 laboratory? 9 MR. PIERCE: Objection to the 10 form. 11 A. Harold Hoyle joined us in the late Forties, 12 I believe. Larry Silverstein. I don't know when he 13 came. Arnold Schaffer. 14 What -- What time frame are you thinking 15 about? I'm trying to orient myself and -- because -16 Q. Prior -17 A. What? 18 Q. -- to 1970. From about 1937 to 1970. 19 A. Prior to 1970? Paul Wolf, Mark Wolf, Don 20 McCollister. I can't think of any others at the 21 moment. 22 Q. Mr. Silverstein: would you recall what his 23 job was, sir? 24 A. He was an industrial hygienist. 25 Q. And would you know if Mr. Silverstein is 1 still living? 66 2 A. Yes. 3 Q. And would you know where he lives, sir? 4 A. No. 5 Q. Mr. Sheffer or Schaffer. Arnold Schaffer. 6 What was his job, sir? 7 A. He was an industrial hygienist. 8 Q. And is Mr. Schaffer still living; would you 9 know? 10 A. Yes. 11 Q. Would you know where he lives now? 12 A. No. 13 Q. Paul Wolf: what was his job, please? 14 A. He was a microbiologist. 15 Q. And is Mr. Wolf, Paul Wolf, still living? 16 A. I think so. 17 Q. And there's another Mr. Wolf, Mr. Mark Wolf? 18 A. Yes. 19 Q. Were they related; would you know? 20 A. Yes. 21 Q. Brothers? 22 A. Yes. 23 Q. What was Mr. Mark Wolf's job, please? 24 A. He was a toxicologist. 25 Q. And would you recall the decade that 67 1 Mr. Mark Wolf would have joined Dow? 2 A. It would be in the Fifties. 3 Q. And is Mr. Mark Wolf still living; - 4 A. No. 5 Q. -- would you know? He's deceased? 6 A. Yes. 7 Q. And Mr. Don McCollister: whatwould his job 8 have been, please? 9 A. He was a toxicologist. 10 Q. And would you know; is he still living? 11 A. Yes. 12 Q. Would you know where? 13 A. In Midland. 14 Q. Is he still with Dow? 15 A. I don't know. 16 Q. I think you've told us, if my notes are 17 correct, that when you joined the medical - the bio 18 sorry - the biochemical research laboratory in 1937 19 that there were essentially two groups - or is that 20 wrong? - microbiology and the toxicology. 21 A. No. I think I mentioned, also, there was a 22 section on wood preservation with preservatives. 23 Q. I understood that was a subsection but - 24 A. It was a - yes, subsection. And the 25 agricultural chemicals was also a subsection, most of 68 1 whom reported to Dr. Dunn. 2 Q. And Dr. Dunn was the microbiologist over - 3 A. Yes. 4 Q. -- the microbiology section, correct? 5 A. He was a biochemist, but in charge of that, 6 yes. 7 Q. How long, sir, did the organization of the 8 biochemical research laboratory remain essentially 9 that way with these two groupings? 10 MR. PIERCE: Objection to the form 11 of the question. 12 Q. I'm trying to find out the changes in the 13 organization of the biochemical research laboratory. 14 And I don't want to get caught up in sections and 15 subsections, but basically trying to find out how the 16 organization changed with time after 1937 while you 17 were there. 18 A. I can't tell you the dates at which that 19 name was dropped and - but there were - the main 20 section was toxicology, industrial hygiene. And that 21 would have occurred in about the early Seventies. 22 There was still a section -- Well, I don't know 23 whether the name was still "biochemical laboratory" 24 for the rest of it or not. That section split off. 25 Q. And when you say "the biochemical section," 69 1 how do you use that terminology, sir, "it split off"? 2 A. The whole operation was called the Dow 3 Chemical Research Laboratory. At some point in time 4 along there industrial toxicology and industrial 5 hygiene were separated, but I can't remember if there 6 was a formal name for the rest of it or not. 7 Q. This group that separated, what kinds of 8 activities did it do after it separated, as best you 9 understand? 10 A. It wasn't any different. 11 Q. What did it do before then? 12 A. I don't understand. 13 Q. I don't have an understanding yet of what 14 this section that split off - what its activities were 15 either before it split off or after. What kinds of 16 work -17 A. Toxicology and industrial hygiene split off. 18 Q. Then I guess I don't understand what the 19 other group did. 20 A. The other group was con - consisted of 21 microbiology, pharmacology, organic synthesis. That's 22 it, as far as I can remember. 23 Q. How would -- How did you distinguish between 24 what was toxicology and what was pharmacology at The 25 Dow Chemical Company in your organization before the 70 1 toxicology and industrial hygiene was split off? 2 MR. PIERCE: Objection to form 3 of the question. 4 A. The pharmacology group was - under Maynard 5 Chenoweth, was pretty much an individual unit. They 6 were not a part of - of toxicology and industrial 7 hygiene. 8 Q. And what -- I'm sorry. 9 A. And their work was basically in 10 pharmacology. And that was joined later by a 11 pharmacology group that was part of the drug operation 12 in Indianapolis. 13 Q. And what I'm trying to also learn, Dr. Rowe, 14 is when you say "pharmacology" as opposed to 15 "toxicology," what's the difference in those two, if 16 there is one? 17 A. They're pretty closely related, but they 18 were primarily concerned with - with new drugs that 19 were being developed as opposed to occupational or 20 industrial chemicals. 21 Q. You stayed in the toxicology group all your 22 career with Dow; is that right? 23 A. That's right. 24 Q. So, after this group split off that was 25 toxicology and industrial hygiene, you were in that 71 1 group? 2 A. Yes. 3 Q. After the split-off, to whom did you report? 4 A. I reported to Dr. Irish. 5 Q. So, he was still with Dow; this was before 6 he retired. 7 A. At that point. 8 Q. And at some point in time, I take it you no 9 longer reported to Dr. Adams. 10 A. There was -- There was a transitional period 11 there. Dr. Adams became head of the laboratory when 12 Dr. Irish left. And at that time for about a year I 13 reported to Dr. Adams. 14 Q. And then did Dr. Adams retire, as well? 15 A. Yes. 16 Q. And who took his place, sir? 17 A. Dr. Charles Hinman. 18 Q. Hinmin? Could you spell that, please? 19 A. H-i-n-m-a-n. 20 Q. And what was Dr. Hinman's background, as you 21 understood, sir? 22 A. He was basically an organic chemist with a 23 lot of biochemical background. 24 Q. And was Dr. Hinman your supervisor until you 25 retired? 72 1 A. No. 2 Q. Who succeeded Dr. Hinman in that role, then, 3 sir? 4 A. Dr. Blair. 5 Q. And Dr. Blair'sfirstname? 6 A. Etcyl. 7 Q. Was there another person to whom you 8 reported after Dr. Blair? 9 A. No. 10 Q. So, you reported to Dr. Adams for about how 11 many years, sir? 12 A. About one year. 13 Q. And before that you reported to Dr. Irish? 14 A. Yes. 15 Q. For about how many years, perhaps 30 years? 16 A. Twenty-five, I suspect. 17 Q. And then the number of years, approximately, 18 you reported to Dr. Hinman. 19 A. About three, I think. 20 Q. And then Dr. Blair, about how many years, 21 sir? 22 A. About six. 23 Q. In this approximate 1937-'38 time period 24 when you first began working for Dow, would you recall 25 who Dr. Irish reported to, either by name or by title 73 1 or both? 2 A. He reported to Dr. Veazey. 3 Q. Could you spell that, please? 4 A. V-e-a-z-e-y. 5 Q. And would you recall Dr. Veazey's first 6 name? 7 A. No. 8 Q. What was your understanding of Dr. Veazey's 9 position in Dow? 10 A. He was director of research. 11 Q. Was there any particular area of research 12 that Dr. Veazey was a director of, or was this general 13 research for The Dow Chemical Company? 14 A. I'll correct that. I believe at that 15 particular time Dr. Willard Dow was still corporate 16 director of research, and Dr. Veazey was his 17 right-hand man in charge of daily operations. 18 Q. And was this general research overall at 19 Dow? 20 A. Yes. Yes. 21 Q. And would you recall -- Did Dr. Irish report 22 to someone after Dr. Veazey? 23 A. Going back one step further, now, when 24 Dr. Irish first was employed by Dow, he reported to 25 Dr. John Grebe. 74 1 Q. And who was Dr. Grebe? 2 A. He was director of the physical research 3 laboratory, of which we were a part for about a year. 4 Q. And would you recall Dr. Grebe's first name? 5 A. John. 6 Q. John. Would you spell Dr. "Grebe" for us. 7 A. G-r-e-b-e. 8 Q. Now, later on did Dr. Irish's supervisor 9 change after Dr. Veazey? 10 A. Yes. 11 Q. Can you give me the people that Dr. Irish 12 would have reported to in some kind of sequence? 13 MR. PIERCE: I'm going to object 14 to the form of the question. 15 But go ahead, Doctor. 16 A. There were a number of people, and I can't 17 remember the sequence. One was Dr. Boundy. 18 Q. B-o-w-d-y? 19 A. B-o-u-n-d-y. 20 Q. Would you recall his first name? 21 A. Ray. 22 Q. And what was your understanding of 23 Dr. Boundy's position? 24 A. Pardon? 25 Q. What was your understanding of Dr. Boundy's 75 1 position when Dr. Irish reported to him? 2 A. Boundy, you mean? 3 Q. Yes, sir. 4 A. Director of Research. 5 Q. Was it that Dr. Irish always reported to the 6 director of research during his career at Dow, as you 7 understood it? 8 A. Yes. 9 Q. Were there any medical doctors in 10 Dr. Irish's organization, that you recall? 11 A. When? 12 Q. Any time. 13 A. What time frame? 14 Q. Any time that Dr. Irish was the director of 15 the biochemical research laboratory or what it later 16 became. 17 A. Yes. 18 Q. What's the earliest physician that you can 19 recall in that organization? 20 A. Dr. Maynard Chenoweth. 21 Q. And can you tell me approximately when 22 Dr. Chenoweth would have been in the group? 23 A. Late Seventies, I would guess - estimate. 24 Q. I take -25 A. Excuse me. 76 1 Q. Yes, sir? 2 A. Late -- Late Sixties or early Seventies. 3 Q. Would you have any understanding of 4 Dr. Chenoweth's background before he joined the group 5 with Dr. Irish? 6 A. Yes. 7 Q. What did you understand about 8 Dr. Chenoweth's background before he joined 9 Dr. Irish's group? 10 A. He was a professor of pharmacology at the 11 University of Michigan. 12 Q. Did you know Dr. Chenoweth before he joined 13 Dow? 14 A. Yes. 15 Q. For approximately how many years would you 16 say you knew Dr. Chenoweth before he joined Dow? 17 A. About two years. 18 Q. Did you know him through his work at the 19 University of Michigan? 20 A. Yes. 21 Q. What kinds of activities did you understand 22 Dr. Chenoweth to be doing at the University of 23 Michigan before he joined Dow? 24 MR. PIERCE: Objection to the form 25 of the question. 77 1 A. He was a professor and a teacher. 2 Q. And -- I'm sorry. 3 A. I don't know what else. I don't recall what 4 other... 5 Q. Would you recall if he was engaged in any 6 research activities, that you were aware of, in 7 Michigan? 8 A. He was engaged in research, but I don't 9 remember the particular subjects. 10 Q. Could you spell Dr. Chenoweth's name for us, 11 please, sir? 12 A. C-h-e-n-o-w-e-t-h. 13 Q. In the time period that you first joined Dow 14 in the late Thirties, were there any physicians 15 employed by Dow Chemical Company, that you were aware 16 of? 17 A. As a con -- On a consulting basis. 18 Q. Who are you aware of who were acting as 19 medical consultants to Dow Chemical in the late 20 Thirties? 21 A. The general medical profession in the town. 22 Q. Do you recall any names? 23 A. I remember just one. Dr. Rice. 24 Q. Would you recall his first name? 25 A. No. 78 1 Q. Is it your recollection, Dr. Rowe, that Dow 2 Chemical had no full-time-employed medical doctors in 3 the corporation in the late Thirties when you joined 4 the company? 5 MR. PIERCE: Objection to the form 6 of the question. 7 A. That's right. Yes. 8 Q. Was there a time that you became aware that 9 Dow did employ a full-time medical doctor? 10 A. Yes. 11 Q. Approximately when would that have been, 12 sir? 13 A. I -- I just don't know. 14 Q. Would it have been -15 A. Probably in the Forties. 16 Q. In the Forties. After the War or before; 17 would you know? 18 A. I don't know. 19 Q. Do you recall who that would have been, sir? 20 A. Pardon? 21 Q. The first physician. Do you recall who the 22 first full-time physician Dow would have employed 23 would have been? 24 A. Yes. 25 Q. Who is that, sir? 1 A. Dr. Harold Gay. 79 2 Q. And how would you spell Dr. Gay's name? 3 A. G-a-y. 4 Q. And in what organization within Dow did you 5 understand Dr. Gay to be working? 6 A. I don't -- I don't know what you mean. 7 Q. Dow had an organizational structure, and I'm 8 trying to find where Dr. Gay fit into the 9 organizational structure. 10 A. I can't tell you. I don't know. 11 Q. Did you have an understanding of Dr. Gay's 12 background before he joined Dow? 13 A. No. No. 14 Q. Did you know him at Dow? 15 A. I knew him at Dow. 16 Q. Would your job activities have brought you 17 in contact with Dr. Gay as a physician? I mean 18 professionally. 19 A. Yes. 20 MR. PIERCE: You have a time 21 frame? 22 A. Yes. 23 Q. What kind of work would you have, Dr. Rowe, 24 with Dr. Gay as early as you can remember in your 25 career at Dow? 80 1 A. Well, Dr. Gay would frequently come to us 2 for information and advice with respect to medical 3 problems that he encountered. 4 Q. Do you recall some specific examples of 5 that? 6 A. Yes. 7 Q. Would you give me some of the ones you 8 remember, please. 9 A. The first one I can recollect had to do with 10 carbon tetrachloride. And he was seeing too many 11 people that didn't feel well. And he wanted to know 12 what we knew about it. 13 Q. Were these people who had been working with 14 carbon tetrachloride? 15 A. Yes. 16 Q. Did the medical program at Dow, to your 17 knowledge, grow with time after Dr. Gay was hired? 18 A. Yes. 19 Q. Were there other full-time physicians who 20 were hired by Dow Chemical Company after Dr. Gay? 21 A. Yes. 22 Q. Can you remember any of those gentlemen or 23 ladies? 24 A. Dr. Harold Gordon, Dr. Benjamin Holder, 25 Dr. Charnweber, Dr. Kilian, Dr. Landon - "Lanham" I 81 1 should say - some others whose names I can't 2 recollect. 3 Q. Would you know, sir, is Dr. Gay still 4 living? 5 A. No. He is not. 6 Q. Is Dr. Gordon still living? 7 A. As far as I know. 8 Q. Where was he located the last time you knew, 9 sir? 10 A. It was in Colorado somewhere. 11 Q. Dr. Holder: would you know if he's still 12 living? 13 A. Yes. He is. 14 Q. And where was he the last time you knew, 15 sir? 16 A. In Florida somewhere. 17 Q. And Dr. Charnweber -- Is that his name? 18 A. I don't know. 19 Q. Could you spell Dr. Charnweber's name for 20 us, please? 21 A. I'll try. 22 MR. HOBSON: Can you spell it 23 better than he pronounced it? 24 A. C-h-a-r-n-w-e-b-e-r. 25 Q. Thank you. And Dr. -- Is it "Lanham"? 82 1 A. Lanham. 2 Q. Could you spell that, please? 3 A. L-a-n-h-a-m. 4 Q. Would you know Dr. Lanham's first name, 5 please? 6 A. I don't recall at the moment. 7 Q. Would you know if he's still living? 8 A. Yes. He is. 9 Q. And where was he the last you knew, sir? 10 A. In Midland. 11 Q. Is he still with Dow, to your knowledge? 12 A. Is not, no. 13 Q. And Dr. Kilian. Which Dr. Kilian would that 14 have been, please, sir? First name. 15 A. Jack. 16 Q. I believe Dr. Jack Kilian is deceased. 17 A. Pardon? 18 Q. Is Dr. Jack Kilian deceased? 19 A. Yes. 20 Q. And Dr. Charnweber: would you recall his 21 first name? 22 A. Charles. Charles. 23 Q. Charles. And would you know if he's still 24 living, sir? 25 A. I don't know. 83 1 Q. The biochemical research laboratory, where 2 was it physically located in the late 1930's? 3 A. Located on Bay City Road. I don't know how 4 else to describe it. There was no streets or anything 5 like -- It was in the plant. 6 Q. Bay City Road within which plant? 7 A. In the fence -- It was in the plant area. 8 Q. And which plant would that have been, sir? 9 A. Midland Chemical Company -- Dow Chemical 10 Company in Midland. 11 Q. Now, when Dr. Gay was employed by Dow, where 12 was his office physically located, if you know, sir? 13 A. It was also on Bay City Road. Again, no 14 street. 15 Q. A different building than the biochemical 16 research laboratory's location? 17 A. No, no. 18 Q. Same building? 19 A. No. 20 Q. I'm sorry. I'm confused. Was Dr. Gay 21 located in the same building as the biochemical 22 research laboratory? 23 A. No, sir. 24 Q. Did the biochemical research laboratory stay 25 in the same location while you were an employee at 84 1 Dow, or did it change? 2 A. Two questions. Would you repeat - Give it 3 to me one at a time. 4 Q. Yes, sir. Let me ask it this way: Where 5 was the biochemical research laboratory physically 6 located during your tenure with Dow? 7 A. I described to you where it was initially. 8 Q. Yes, sir. 9 A. And then a new building was built in 1955, 10 and that was on Austin Street and Washington - Austin 11 and Washington. Then when the units were broken up, 12 we built a new building, also on Washington and Austin 13 but on the northeast corner. And that was known as 14 the toxicology laboratory. 15 Q. The - 16 MR. PIERCE: I'm going to just 17 interpose an objection now to this 18 whole line of questioning. You're 19 asking the witness to give you 20 addresses for events that happened 40 21 and 50 years ago clearly not relevant 22 at all - Dr. Gay's address, this 23 office's address. I wish you would 24 keep to relevant questions so that we 25 can all complete this deposition and 85 1 that Dr. Rowe need not be put through 2 this type of questioning. 3 MR. BLANKS: They're pretty 4 abusive questions, aren't they? 5 Q. When you say "Austin and Washington," 6 Dr. Rowe, is that still within the plant? 7 A. No. 8 Q. Is Austin and Washington - are those streets 9 in Midland, Michigan? 10 A. Yes. 11 Q. And you say the new building - the second 12 new building - that was built after the breakup, and 13 you called that the tox. lab. Was industrial hygiene 14 still located within the tox. lab, then, after the 15 breakup? 16 A. Yes. 17 Q. If I've understood correctly, you've told me 18 that the biochemical research laboratory - one of its 19 jobs was to do toxicity testing. 20 Going back to the late 1930's when you first 21 joined Dow, can you tell me if you have any 22 understanding how it was decided what materials would 23 be tested at the biochemical research laboratory? 24 A. I didn't make that decision at that time; 25 so, I don't know. 86 1 Q. Was there a point in time in your career 2 where you either made that decision or were involved 3 in having input in making the decision as to what 4 materials would be tested by the biochemical research 5 laboratory at Dow? 6 A. Yes. 7 Q. Approximately when would that have been, 8 please? 9 A. I -- I don't -- I can't answer. I don't 10 know. 11 Q. Can you give me a decade? 12 A. Probably in the Fifties. 13 Q. Once you either had input or were -- Strike 14 that. Let me ask it this way: Was there a time when 15 you only had input into the decision making; or was 16 there a time that you, yourself, actually made the 17 decision about the priorities of what would be tested? 18 MR. PIERCE: Objection to the form 19 of the question. 20 A. Two questions again. Would you rephrase the 21 question, please. 22 Q. Yes, sir. Was there a time when you were 23 you had the responsibility of making the decision as 24 to what materials would be tested at the biochemical 25 research laboratory? 87 1 A. Yes. 2 Q. Before you had that decision-making 3 authority, was there someone else who made those 4 decisions but to whom you made input? 5 A. Those decisions were usually joint decisions 6 with input from various sources. 7 Q. Would you tell us for the time period that 8 you have knowledge of what the criteria would have 9 been for making the decision as to what materials 10 would be tested? 11 MR. PIERCE: For the period that 12 you know (directed to the witness). 13 Q. Absolutely. 14 A. Well, I don't think there was any material 15 any new material - that was produced at Dow Chemical 16 Company that didn't go through our laboratory. 17 Q. When you say "go through our laboratory," 18 how do you mean that? 19 A. I mean subjected to evaluation 20 toxicological evaluation. 21 Q. What time period can you tell me that you 22 have knowledge of that this would be the case? 23 A. I can't tell you when. It was our general 24 policy to -- As soon as there was any significant 25 interest in a new material, it was almost automatic 88 1 that it would be submitted to our laboratory for 2 evaluation. 3 Q. Is it your understanding that that was the 4 general policy of Dow even in the 1940's? 5 A. I can't be sure about the - that time. 6 Q. But by the 1950's do you feel that that was 7 Dow's general policy, as you understood it? 8 A. These sort of things evolved over a period 9 of years. It just didn't happen to fall off a log. 10 Q. But by the 1950's do you believe that that 11 was Dow's general policy about new materials? 12 A. Yes. 13 Q. When you say "new materials," do you mean 14 new materials that Dow was developing? 15 A. Yes. 16 Q. You say that toxicological evaluations would 17 have been made of new materials that Dow was 18 developing, as you've previously described, once it 19 looked like they were going to be - "Promising," I 20 guess, would be a way of saying it. 21 Would you tell us what you mean by 22 "toxicological evaluation" for these new materials. 23 MR. PIERCE: Objection to the 24 form. Objection to the small speech. 25 A. We had various categories of toxicological 89 1 testing - different degrees. And if a material was 2 encountered or developed that was new and there was no 3 information that we could find in the literature, our 4 testing procedure was called what we -- Well, what we 5 called it was a "Class I evaluation," which was 6 designed to determine the - roughly, the qualitative 7 and quantitative hazards associated with ingestion; 8 eye contact; and skin contact; and, if it was likely 9 to be encountered as a vapor or a gas, short 10 inhalation studies. 11 Q. And you say that's Class I. Were there 12 other classes besides Class I? 13 A. Yes. 14 Q. And what would those classes have been, 15 sir? 16 A. That would be when materials would really 17 begin to show promise. The first class was -- Class I 18 studies were primarily designed to ascertain whether 19 these materials being handled by our research people 20 or whoever - were presented with an unusual hazard. 21 For instance, a splash in the eye, contact with the 22 skin, or accidental ingestion or inhalation. When - 23 The further the material was developed, we would do 24 more extensive studies in both areas - all these 25 areas - and we would begin to do repeated exposures. 90 1 And this progressed along with the development or the 2 promise of a potential product. And the ultimate 3 was -- Of course, lifetime studies ultimately on such 4 materials that were going into food additives were 5 required by Government agencies for approval by the 6 Food and Drug or whatever. 7 Q. So, basically you're saying that as a 8 product was developed, also the toxicological 9 information for that product was developed along with 10 the product? 11 MR. PIERCE: Objection to the 12 form. 13 A. That was the general pattern. 14 Q. Have you heard the terminology used before 15 of "tier testing"? 16 A. Yes. 17 Q. Is that how you would -- What do you mean by 18 "tier testing," or what have you heard it used as? 19 A. It means different things to different 20 people. It's a stepwise evaluation similar to what 21 I've just described. 22 Q. Would it be unfair to characterize what Dow 23 did as tier testing? 24 A. I don't know how other people define "tier 25 testing" that detailed. 91 1 Q. Did you have a name for this kind of testing 2 protocol for new products at Dow? 3 A. We called them Class I, Class II, and 4 Class III evaluations. 5 Q. Well, you obviously don't feel comfortable 6 with the term "tier testing." I was trying to find 7 out if there was another set of terminology we could 8 apply to this. 9 A. Not that I know of. 10 Q. You've told us about Class I in your testing 11 protocols for new products. When would you initiate 12 Class II testing? 13 MR. PIERCE: Objection to the form 14 of the question. 15 A. It'd depend on the status of a particular 16 material from the standpoint of production and 17 potential sales or utility. 18 Q. And then when would you initiate Class III? 19 MR. PIERCE: Objection to the form 20 of the question. 21 A. Depending upon the type of exposure 22 anticipated if this goes to a major product. 23 Q. Would you have been using the Class I, 24 Class II, Class III protocols for toxicity testing 25 that you've told us about in the 1950's? 92 1 A. Yes. 2 Q. Did you keep these protocols a secret at 3 Dow, or did you publish what you were doing or tell 4 others about it? 5 MR. PIERCE: Objection to the form 6 of the question. 7 A. I don't think I can answer your question as 8 phrased. If you'll break it up and - I'll do my best. 9 Q. Sure. Is it -- Can I call these protocols 10 "Class I," "Class II," and "Class III"? 11 A. There was never any set protocol. 12 Q. What would be a terminology you'd feel 13 comfortable with I can use in my questions for the 14 Class I, Class II, and Class III? I hesitate to say 15 "scheme" because it may give the wrong connotation. 16 MR. PIERCE: You want the witness 17 to phrase yourquestions for you, 18 Counselor? 19 MR. HOBSON: No, but I don't want 20 to use terminology thatoffends the 21 gentleman. 22 A. It would simply develop -- Your word 23 "protocol" was quite all right, except we did not 24 have what you might call a - the same protocol for 25 every problem. We modified our protocols depending 93 1 upon what the problems or anticipated problems would 2 be. 3 (By Mr. Hobson) 4 Q. This -- This concept of modifying your 5 protocols and fitting in the Class I, Class II, 6 Class III toxicity testing, is that something that you 7 published? 8 A. We published a great deal on the subject. 9 Q. And it was published in the 1950's - part of 10 it - was it not? 11 A. I don't remember the dates. 12 Q. You gave speeches, lectures atdifferent 13 professional societies concerning this activity that 14 you followed with Dow concerning the toxicity testing 15 and the adaptation of these protocols to different 16 product - different products being developed, did you 17 not? 18 A. Yes. 19 Q. So, anyone who was following the medical and 20 scientific literature could learn the general 21 undertakings of Dow's toxicity testing of new products 22 as they were developed. Would that be accurate in 23 your view? 24 A. Yes. 25 MR. HOBSON: Dr. Rowe, if you'll 94 1 accept my apologies, I need to take a 2 short break, sir. 3 (SHORTLY AFTER THE RECESS WAS 4 CALLED, IT WAS DECIDED TO BREAK FOR 5 LUNCH. THEREFORE, AT APPROXIMATELY 6 11:15 A.M. THE DEPOSITION WAS RECESSED. 7 AT APPROXIMATELY 12:30 P.M. THE 8 DEPOSITION RESUMED AS FOLLOWS:) 9 (By Mr. Hobson) 10 Q. Dr. Rowe, before we took our luncheon break, 11 we were speaking a little bit about the work at the 12 biochemical research laboratories. I'd like to return 13 to that subject. 14 You told me about new product testing and 15 going through Class I, Class II, Class III testings. 16 Were there any other products besides new products 17 which you at the biochemical research laboratories did 18 toxicological evaluations of? 19 A. Yes. There could be. If we were using a 20 new raw material that was purchased from - new from 21 somebody and there was no literature or toxicological 22 data available, why, we would probably do it, 23 ourselves. 24 Q. Any other materials that you might do 25 testing on at your laboratory other than new products 95 1 or purchased materials for which there was no 2 published toxicity testing data? 3 A. Not that I recollect. 4 Q. How would you know what materials were being 5 used? You talked about these purchased products. How 6 would you know what they were at Dow? 7 A. We had pretty close liaison with research 8 people, and they were pretty well programmed to let us 9 know when there were new materials coming forth. 10 Q. Was that formal or informal in letting you 11 know what purchased materials were going to be used in 12 Dow facilities? 13 MR. PIERCE: Objection to the form 14 of the question. 15 A. I would say some of each. 16 Q. Would you describe any formal procedures 17 that you had. 18 A. I don't -- Only that people in the plants 19 and the research laboratories were well aware of us 20 and what was expected; otherwise, I don't think there 21 was anything - no edict put out, if you know - 22 Q. Now, the purchased materials that you speak 23 of in this context, are these purchased materials that 24 are being used to manufacture items that are in 25 production or are these purchased materials that are 96 1 for research purposes only or both? 2 MR. PIERCE: Objection to the form 3 of the question. 4 A. Could be either. 5 Q. Would you have been involved in the 6 biochemical research laboratory in evaluating the 7 toxicity of materials that were not used in - as 8 manufacturing materials or were not finished products; 9 for instance, intermediates? 10 MR. PIERCE: Is this at any time 11 with any product? 12 MR. HOBSON: We can start there. 13 If he says, "no," that answers the 14 question. 15 MR. PIERCE: Try to answer it, if 16 you can. 17 A. I guess I really don't understand your 18 question. 19 (By Mr. Hobson) 20 Q. All right. As I've understood what you've 21 told me so far, you've said that there are some 22 purchased materials that Dow would evaluate in your 23 laboratory. And you said that you evaluated new 24 products. It's my understanding that when you make 25 some products, you go through an intermediate step on 97 1 occasion. You start off with something you buy, you 2 make an intermediate, you get to the finished 3 product. And my question to you, sir, is: Would you 4 evaluate the toxicology - the toxicity of the 5 intermediate product in this manufacturing process? 6 A. Yes. If there were opportunity and 7 likelihood of exposure to our people, yes. 8 Q. Would you evaluate the toxicity of any 9 materials that were involved in the manufacturing of 10 products but were not actually being used to make the 11 product, itself, as a purchased material? 12 MR. PIERCE: I object to that 13 question. It completely confuses 14 me. But if the witness can answer 15 it - 16 A. I don't understand the question. 17 Q. Would you look at catalyst, for instance? 18 A. That wouldn't be likely because of the very, 19 very small amounts of material. And usually they're 20 not new materials, they've been in use. 21 Q. Did you at the biochemical research 22 laboratories have a method of communicating your 23 knowledge about the toxicity of either products or 24 purchased materials to others within the corporation? 25 A. Yes. 98 1 Q. What mechanism did you use? 2 A. We distributed our reports to every spot 3 that we knew the material might be encountered. 4 Q. Did your reports have a particular name or 5 format that you followed? 6 A. I guess again I don't know really what 7 you're asking. 8 Q. In more recent times we've seen Material 9 Safety Data Sheets. Would you have had some sort of a 10 forerunner to a Material Safety Data Sheet that you 11 would have used to communicate hazards to people in 12 the company? 13 A. That, I believe, was about the first form 14 more formalized procedure, was a safety data sheet. 15 Q. Can you recall for me, as best you can, 16 about when you began to use these data sheets? 17 A. No. I don't. I can't remember when that 18 was. 19 Q. Can you remember the decade? 20 A. Not for sure. 21 Q. May I ask, sir, when did you leave Dow, 22 year? 23 A. I retired in '79. 24 Q. Was that at the end of 1979? 25 A. It was July 1st, I believe. 99 1 Q. What titles for your position did you hold 2 while you were at Dow, and approximately when did you 3 hold those? 4 A. I -- I don't remember them all. I think I 5 remember the first one. I was changed from a 6 biochemist to a toxicologist. And then I went up to 7 names such as "technical specialist" and "laboratory 8 director" and "assistant director of the - of 9 laboratory" and "head of health and environmental 10 sciences." I don't know -- Other administrative 11 titles. 12 Q. We've provided a request for certain 13 documents through the attorneys involved in the case. 14 Did that request make its way to you, 15 Dr. Rowe? 16 A. Yes. 17 Q. Did you bring anything responsive to that 18 request? 19 A. It was -- It is being brought by -- Someone 20 has it. 21 Q. May we have what you responded with, sir? 22 A. Yes. 23 MR. PIERCE: (Tendering a group of 24 documents to Mr. Hobson);. 25 Q. May I ask, Dr. Rowe, when is the first time 100 1 you were aware of our request for documents? 2 A. Monday. 3 Q. And did you receive that request and review 4 it and go through your files and provide information 5 that was responsive to it? 6 A. Yes. 7 Q. Have you reviewed these articles or 8 documents that I've just been handed by Counsel? 9 A. I have not. 10 Q. Did you provide these to Counsel? 11 A. Yes. 12 Q. Do you know if I've been provided with what 13 you've provided them? 14 A. Have I checked the listing or anything like 15 that? No. I had copies made and, as far as I know, 16 that's - they're there. 17 MR. PIERCE: If you want a 18 representation, Mr. Hobson, you have 19 it. 20 MR. HOBSON: That... 21 MR. PIERCE: They have these other 22 copies of documents that Dr. Rowe 23 provided to us. 24 MR. HOBSON: And that's all -- You 25 gave me everything he gave you? 101 1 MR. PIERCE: Right. That he said 2 he wanted to provide to you. 3 (By Mr. Hobson) 4 Q. Since your retirement, Dr. Rowe, have you 5 done any consulting? 6 A. Yes. 7 Q. With whom have you done consulting, sir? 8 A. I have limited any work that I have done in 9 recent years to those things associated with Dow's 10 operation when I was there. 11 Prior to that I was a consultant to the 12 University of California Department of Toxicology, 13 another firm in the East -- And I can't tell you -- I 14 don't remember the name of it. And I've been a 15 consultant to Government agencies. 16 Q. The firm in the East: what was the nature of 17 that consulting work? 18 A. It was on environmental control. 19 Q. You say that in recent times you've limited 20 your consulting? 21 A. That's right. 22 Q. Can you tell me the nature of that 23 consulting once you limited your consulting 24 activities? 25 A. Had to do with materials and practices that 102 1 I was familiar with when I was at Dow. 2 Q. Was this consulting always for Dow or Dow's 3 attorneys? 4 A. I don't understand your question. 5 Q. Yes, sir. You said that you've - at one 6 point in time here since your retirement you've 7 limited your consulting activities to what you did at 8 Dow, I think. 9 A. (Nodding affirmatively) 10 Q. And I'm wondering if that work once you 11 limited your consulting was always for Dow or for 12 Dow's attorneys. 13 A. I'm still confused with the question. 14 Q. Who employed you for your consulting once 15 you limited your consulting practice? 16 A. Dow Chemical. 17 MR. PIERCE: So long as you're 18 reviewing these documents now, let me 19 take this opportunity to note that the 20 production of these documents does in 21 no way indicate concurrence on the part 22 of myself, as attorney for Dr. Rowe, 23 nor does it, I believe, for the 24 attorney from The Dow Chemical Company, 25 that these are relevant documents; but 103 1 these are the ones that Dr. Rowe 2 thought he should bring to your 3 attention in accordance with his review 4 of the draft subpoena. 5 Q. Dr. Rowe, I find in here a C.V. in the 6 stack. Perhaps we could ask the court reporter to 7 mark it as an exhibit - or we will here and then pass 8 it over to you. In the stack is there only one C.V.? 9 I haven't gone through the whole stack. 10 A. No. I think there's only one. 11 Q. Is that C.V. current? 12 A. I believe so. 13 Q. I meant as opposed to one you found in your 14 files from maybe some years back. 15 A. Well, it hasn't changed for quite a few 16 years. 17 (PLAINTIFFS' EXHIBIT 141005 ROW VK 18 WAS MARKED FOR IDENTIFICATION 19 PURPOSES. SAME WILL BE FOUND IN 20 THE EXHIBIT VOLUMES ATTENDANT TO 21 THIS DEPOSITION.) 22 (By Mr. Hobson) 23 Q. Your publications that are listed here, have 24 there been any others other than in the C.V.? 25 A. I -- I can't answer you. I don't know. 104 1 Q. We've marked this now as Plaintiffs' 2 Exhibit 141005 ROWE V. K. And I'll pass that over to 3 you, sir (tendering document). That's the C. V. you 4 provided -- 5 A. That's the one I had in my file. 6 Q. Can you recall, from looking at this C.V., 7 if there are any publications since your retirement 8 from Dow that might not have been included on it? 9 A. (Reviewing document) I do not recall any 10 (tendering document). 11 Q. Are you aware of some publications that you 12 might have written while you were a Dow employee that 13 didn't get on your C.V.? 14 A. I'm not aware of any. 15 Q. When you went to Dow in 1937 at the 16 biochemical research laboratory, was there a library 17 that you had access to? 18 A. Yes. 19 Q. What was your -- What'syour best 20 recollection of the contents of that library? 21 MR. PIERCE: Objection to the form 22 of the question. 23 A. Well, it was a -- We thought it was a pretty 24 good library. I have no way of answering your 25 question in a quantitative or qualitative way, really. 105 1 Q. Was it a library that was for the use of the 2 biochemical research laboratory, or was this a general 3 plantwide or a corporatewide library? 4 A. There was a main library used - for anyone 5 within the company. Within the toxicology or 6 biochemical research laboratory, we maintained those 7 journals that were of particular interest to us. 8 There may well have been a duplicate copy in the main 9 lab - in the main library. 10 Q. The library that you kept at the laboratory, 11 did it include both texts and periodic journals? 12 A. Yes. 13 Q. Would you recall any of the texts that were 14 in use at the time that you first began at Dow in the 15 late Thirties in the area of toxicology that you would 16 have been using in your work? 17 A. No. 18 Q. Would you remember what publications were in 19 use there at the laboratory at the time you began at 20 Dow? 21 A. I don't remember. 22 Q. What was the general nature of the kinds of 23 texts and periodicals that you had at the biochemical 24 research laboratory library? 25 MR. PIERCE: In 1937? 106 1 MR. HOBSON: Yes, sir. 2 A. Could you please give me the date again? 3 (By Mr. Hobson) 4 Q. Yes, sir. When you began in 1937. 5 A. In 1937 the library - our local library 6 probably consisted no more than of what individuals 7 were subscribing to, themselves. Maybe Chemical 8 Abstracts, something of that nature, and maybe 9 The Journal of Industrial Hygiene or Toxicology, or 10 whatever was the name of it in those days. But those 11 well could have been just people's copies that they 12 put out - made available. 13 Q. You're familiar with the Industrial Hygiene 14 Foundation, are you? 15 A. Somewhat. 16 Q. Are you aware that at one time they 17 published a digest? 18 A. Yes. 19 Q. Was that a reference that Dow had at its 20 libraries, to your knowledge? 21 MR. PIERCE: Are you once again 22 asking in 1937? 23 MR. HOBSON: Well, if it was 24 available in 1937 or any time. 25 MR. PIERCE: But is there a time 107 1 frame for your question? 2 MR. BLANKS: This man's work life 3 would be fine. 4 MR. HOBSON: At any time. 5 A. I cannot give you a time reference; but I am 6 well aware that that was one that was circulated 7 within our laboratory, yes. 8 (By Mr. Hobson) 9 Q. Do you recall that it was circulated when 10 you first went to work at Dow? 11 A. No, I don't recall it. 12 Q. Is there any time that you can give me when 13 you do recall that it was circulated? 14 A. No. 15 Q. In other words, can you put a beginning time 16 on it? 17 A. No. 18 Q. Would you know one way or the other if 19 anyone at Dow had any connection with the Industrial 20 Hygiene Foundation as part of, like, being on its 21 board or being involved financially in supporting work 22 of the Industrial Hygiene Foundation? 23 MR. PIERCE: Objection to the form 24 of the question. 25 A. I don't know. 108 1 Q. Did you, yourself, attend any of the 2 Industrial Hygiene Foundation meetings? 3 A. Yes. 4 Q. What is the earliest time period you recall 5 attending those? 6 A. I have no recollection of time frame. 7 Q. Did you know any of the other people who 8 were involved in the Industrial Hygiene Foundation 9 when you first began going to their meetings, whenever 10 they were? 11 A. Dr. Brown comes to my mind. 12 Q. Would you recall his first name? 13 A. I -- I do not -- No. 14 Q. Do you remember any context of Dr. Brown' 15 activities? 16 A. No. 17 Q. Do you know a Vandiver Brown? Does that 18 ring a bell? 19 A. I don't know. It doesn't ring a bell. 20 Q. I believe you, yourself, were a member of 21 the American Chemical Society beginning in 1937; 22 that right? 23 A. I'm not sure of the date, but I've been a 24 member of it for a long time. 25 Q. I think I've read in some of your 109 1 biographies that it was 1937. Chemical Abstracts is 2 the publication of the American Chemical Society? 3 A. Yes. 4 Q. Would you have received copies of Chemical 5 Abstracts as part of your membership? 6 A. No. 7 Q. I take it that you were aware ofChemical 8 Abstracts' publication at least as early as your 9 formal education? 10 A. Yes. 11 Q. So, you were aware of them being in 12 existence by the time you got to Dow Chemical? 13 A. Yes. 14 Q. Was Chemical Abstracts a resource that you 15 used in your work at Dow Chemical in the 1930's? 16 MR. PIERCE: Objection to the form 17 of the question. 18 A. Yes. 19 Q. Do you recall if Chemical Abstracts was 20 divided into subject categories? 21 A. Yes. 22 Q. Was there a subject category for Chemical 23 Abstracts that you can recall was more attune to your 24 field of work in the 1930's? 25 A. I don't recall. 110 1 Q. Was it your impression that - at the Dow 2 facilities there in Midland that there was an attempt 3 made to keep a current technical library for use by 4 the personnel? 5 A. Well, they made -- they made the library 6 available to anybody. No one I know of was forced to 7 go. 8 Q. But did it appear to you to be reasonably 9 current and reasonably thorough for the needs that you 10 had? 11 A. I would think so. 12 Q. You don't ever recall complaining that you 13 didn't have a particular resource or nobody would buy 14 a book that you wanted purchased or anything like 15 that? 16 A. I don't remember. 17 Q. Have you had any activities with the 18 American Standards Association? 19 A. I don't recall any of significance. 20 Q. Have you ever been nominated or considered 21 for one of their committees, to your knowledge? 22 A. Not that I recall. 23 Q. Have you ever done any work or had any 24 professional association with the American Petroleum 25 Institute? 111 1 A. No. 2 Q. Would you know one way or the other if Dow 3 is a member of the American Petroleum Institute or has 4 ever been? 5 A. I do not know. 6 Q. Have you become familiar with any 7 publications in the area of health and safety or 8 toxicology published by the American Petroleum 9 Institute? 10 A. Yes. I'm -- I've seen them. I've seen 11 some, anyway. Very few, I expect. 12 Q. I think that I've read in your publications 13 that you were familiar with Professor Philip Drinker 14 at Harvard. 15 A. I know Philip Drinker, Dr. Drinker, yes. 16 Q. Are you aware that Dr. Drinker worked with 17 the American Petroleum Institute to prepare a series 18 called "Toxicological Reviews"? 19 A. I was not aware that he was associated with 20 the institute. 21 Q. Do you recall seeing a publications series 22 by the American Petroleum Institute called 23 Toxicological Reviews? 24 MR. PIERCE: Objection to the form 25 of the question. 112 1 Are you asking him if he knows 2 Toxicological Reviews or if he knows 3 that it was prepared, as in your words, 4 by the American Petroleum Institute? 5 MR. HOBSON: I'm asking him if he 6 recalls ever seeing a series of 7 publications called "Toxicological 8 Reviews" published by the American 9 Petroleum Institute. 10 MR. PIERCE: What you're asking 11 him -- I mean, if he knows 12 Toxicological Reviews or if he knows 13 Toxicological Reviews is published by 14 the American Petroleum Institute? 15 MR. HOBSON: There might be more 16 than one Toxicological Reviews. I'm 17 trying to identify which ones, if there 18 are more than one. And I'm asking 19 MR. PIERCE: I'm trying to show 20 the ambiguity in your question. 21 But let the witness answer it. 22 A. I don't -- I don't recollect. 23 (By Mr. Hobson) 24 Q. Just don't recall one way or the other? 25 A. I don't -- I don't remember anything 113 1 specific about that. 2 Q. Did you know Dr. Drinker professionally? 3 A. I knew him. I never worked with him. 4 Q. Can you give me an idea of how it is that 5 you knew Dr. Drinker? 6 A. I had heard much about him. And, yes, I can 7 remember the first time I met Dr. Drinker. He was 8 chairman of a session, I believe, at the A.I.H.A. 9 where I gave the first paper I ever delivered. And he 10 kept telling me "Relax. Relax. Relax." 11 Q. I take it that after that you continued to 12 see Dr. Drinker from time to time. 13 A. No, except as we would meet in a meeting. 14 Q. What was your impression of Dr. Drinker' 15 professional abilities? 16 MR. PIERCE: Objection to the 17 form. 18 A. I had great respect for him. 19 Q. You have an interest and a professional 20 background in industrial hygiene, as well as 21 toxicology; is that right, Dr. Rowe? 22 A. Very limited. 23 Q. I understand that you're certified in 24 industrial hygiene in the toxicological aspects. 25 A. That's right. 114 1 Q. And you've delivered papers at the American 2 Industrial Hygiene Association a number of times over 3 the years. 4 A. Yes. 5 MR. PIERCE: Objection to the form 6 of the question. 7 Q. When did you first get interested in 8 industrial hygiene, Dr. Rowe? 9 A. About 1940. As I recollect, probably the 10 first meeting. Dr. Irish was involved in it, and he 11 wanted us to become acquainted with it and participate 12 in it. And he took me to the -- I think that was not 13 the first meeting, the second meeting. Very early in 14 the formation of A.I.H.A. 15 Q. Do you recall what led to Dr. Irish being 16 interested in industrial hygiene, or would you know? 17 A. I think it was because of its thrust in 18 maintenance of healthful working conditions. 19 Q. Was there any function at Dow Chemical 20 Company, to your knowledge, up until this 1940 21 conversation that you recall with Dr. Irish that had 22 to do with industrial hygiene? 23 A. Would you please rephrase or restate that. 24 Q. Yes, sir. I'm trying to find out what, if 25 anything, was going on at Dow Chemical Company 115 1 regarding industrial hygiene prior to 1940 when you 2 had this meeting with Dr. Irish that you would know 3 about. 4 MR. PIERCE: Is there a question 5 pending? 6 MR. HOBSON: Yeah. That's it. 7 A. Yes. When I arrived in '37 and in the first 8 years, Dr. Adams had fashioned a pump with a Wet-test 9 meter on it, which he had to have a truck practically 10 to haul various places, to take air samples in various 11 places. And I was aware of this. I helped him build 12 the pump. 13 (By Mr. Hobson) 14 Q. And Dr. Adams, then, was actually doing air 15 sampling after he devised his pump within Dow's 16 facilities? 17 A. Yes. 18 Q. Was it your impression that that was the 19 beginnings of air sampling for airborne contaminants 20 in Dow's facilities? 21 MR. PIERCE: Objection to the form 22 of the question. 23 A. As far as I know, yes. 24 Q. Can you remember what kinds of materials 25 Dr. Adams was sampling in those days, as you've 116 1 described? 2 A. One was methyl bromide. 3 Q. That's a material that Dow was manufacturing 4 at the time? 5 A. Yes. 6 Q. In Midland? 7 A. Yes. 8 Q. Any other materials you can recall being 9 sampled? 10 A. We sampled many materials. I don't know 11 what time or what he was working on at the time. I 12 can't answer the question sensibly. 13 Q. This beginning of building the pump that 14 you've told us about with the Wet-test meter, was that 15 shortly after you went to work at Dow? 16 A. Yes. 17 Q. What other activities, if any, did you have 18 in air sampling until you had the meeting with 19 Dr. Irish in 1940? 20 A. Would you restate that again, please. 21 Q. Yes, sir. All I understood you to tell me 22 that you did was help Dr. Adams build a pump. And I'd 23 like to know if you did anything else in connection 24 with industrial hygiene besides help Dr. Adams build 25 the pump. 117 1 A. I helped him in the - when we were 2 sampling. I helped -- He was the primary; I was his 3 helper. 4 Q. So, you actually were involved in the air 5 sampling, itself. 6 A. Yes, yes. 7 Q. And, now, once you had the meeting with 8 Dr. Irish in 1940, can you pick up there and tell me 9 your involvement in industrial hygiene at Dow 10 following that meeting that you went to at the 11 American Industrial Hygiene Association? 12 MR. PIERCE: Objection to the form 13 of the question. 14 A. Well, my involvement in industrial hygiene 15 was cursory to my laboratory work in toxicology; but I 16 did on occasion visit plants and talk to them about 17 the problems they might have. I've been in the 18 plant. I've taken samples, myself - few, but I have. 19 And then we had people - gradually added a few 20 people. And it didn't really blossom until 21 Mr. Hoyle came with us. And from then on, I don't 22 recollect being in the plants, myself. 23 Q. So, would it be fair to characterize 24 Mr. Hoyle as your first designated full-time 25 industrial hygienist at Dow? 118 1 A. Yes. 2 MR. PIERCE: Objection to the form 3 of the question. 4 Q. Do you recall in this time period between 5 1937 and when Mr. Hoyle came into industrial hygiene 6 what kinds of air sampling capabilities you had at 7 Dow? 8 A. I'm not sure I can give you everything. We 9 tried to develop sampling procedures involving 10 halogenated hydrocarbons in which we would pass 11 material through a furnace, collect the halides, and 12 have it sent to the analytical lab for analysis, and 13 with a blood-test meter or some such matter guess or 14 estimate the volume of the sampling in monitoring 15 the - of the occupational exposure as best we could 16 with the techniques we had available at that time. 17 Q. Do you recall if you had the ability to 18 sample particulates from 1937 until Mr. Hoyle came on 19 board? 20 A. I don't remember the particulates. I had 21 nothing to do with them. 22 Q. Now, would there have been someone else who 23 would have been involved with particulates, then? 24 A. I don't know -- I don't think -- I don't 25 recollect. 119 1 Q. Do you recall having any discussions with 2 anyone outside of Dow about this industrial hygiene 3 activity - in other words, how to collect air samples 4 how to develop air sampling equipment - or was this, 5 something you did all internally at Dow? 6 MR. PIERCE: Objection to the form 7 of the question; lack of time frame. 8 Q. I'm interested while in this '37 time period 9 until when Mr. Hoyle came on board. 10 A. I don't recollect. I'm having a hard time 11 associating the various developments that were 12 occurring in that period of time. That's quite awhile 13 ago for me. 14 Q. I can appreciate it's a long time ago. Do 15 you have any recollection of anyone - for instance, 16 from the U. S. Public Health Service - working with 17 you in developing your program or methods? 18 A. No, I don't. 19 Q. How about from any of the universities? I 20 think you said that you knew about the activities at, 21 like, the University of Cincinnati and some other 22 places. Would you have worked with any university 23 personnel in developing an industrial hygiene program 24 before Mr. Hoyle came? 25 A. Not that I recollect. 120 1 Q. Were there any insurance carriers for Dow, 2 that you're aware of, in that time period from '37 3 until Mr. Hoyle came on who might have provided you 4 information about air sampling? 5 MR. PIERCE: Objection to 6 form. 7 A. I don't recollect any. 8 Q. Have you ever had any dealings with 9 insurance companies while you've been a Dow employee, 10 Dr. Rowe? 11 MR. PIERCE: That's a completely 12 ambiguous question. 13 But answer it if you can. 14 Q. I'm talking about professionally. Any 15 industrial hygienists from insurance companies come 16 into Dow? 17 A. No, except that I knew some of the people in 18 there. But just meetings, we never had -- I never had 19 any contact with them on the technicalities. 20 Q. Would you know one way or the other while 21 you were a Dow employee if any insurance company 22 industrial hygienist ever did any air sampling in Dow 23 facilities? 24 A. I can't recall any. 25 Q. Did Dow, to your knowledge, sir, have any 121 1 industrial hygiene consultants, people who were not 2 employees of Dow? 3 A. Not that I can recollect. 4 Q. Would you tell us - 5 MR. PIERCE: Could we knock off 6 the background chatter please? 7 I'm sorry. Go ahead. 8 MR. HOBSON: Okay. I didn't hear 9 any, so -- I'm sorry. 10 (By Mr. Hobson) 11 Q. Would you tell me, sir, how your job at 12 Dow once Mr. Hoyle was hired - how you would work with 13 Mr. Hoyle, if you did? 14 A. Well, my area was in charge of -- My area 15 was in charge of learning the facts as far as 16 toxicology was concerned and helping to interpret the 17 results that might come back from the field. We 18 conversed all the time. We were in the same building 19 together. So, sure, we talked about problems that we 20 had, what we might anticipate, and so on. 21 Q. That's -- What I'd like to know about, 22 Dr. Rowe, is what - how did you interface - not what 23 you necessarily said, but how did toxicology relate to 24 industrial hygiene? 25 MR. PIERCE: I object to the form 122 1 of the question. 2 A. Well, I always have kind of looked at that 3 as "hand in glove." 4 Q. Can you explain what you mean by that? 5 A. Well, an industrial hygienist that doesn't 6 know anything about - does not have the background 7 information would have a hard time interpreting his 8 results, I think. And he relies on us for the 9 information. 10 Q. And what kind of information? 11 A. Toxicological information. 12 Q. And do you rely on the industrial hygienist 13 for any part of your work, then, as a toxicologist? 14 A. Yes. 15 Q. How does that work? 16 A. Well, to -- It comes to down whether or how 17 you comply with what you believe is a - is a safe 18 working atmosphere and what you know about the 19 toxicology, what the effects are, what kind of 20 symptoms you might expect to find in the people who 21 are working there, if any. It's a very close 22 relationship. An industrial hygienist without some 23 toxicological help ordinarily - in those days, at 24 least - was at great disadvantage. He was at that 25 point an empirical person. 123 1 Q. And "in those days," you mean in the 2 Fifties? 3 A. Yes. Early in the -- Early in the days 4 industrial hygiene was not a very well-developed art 5 any more than industrial toxicology was. 6 Q. Did medicine play a part in your work in 7 toxicology and industrial hygiene? 8 A. Yes. 9 Q. How did that -- How did medicine fit in? 10 A. Well, the information that we developed on 11 animal work was always transmitted to the medical 12 department. And we had discussions with them. And if 13 they happened to see or to have workmen show up at the 14 office - at a medical office - with a particular 15 problem, they had no data. And they didn't have any 16 information on this - on what the exposure was. They 17 would come to us to find out. The first thing we 18 would probably do if we didn't have toxicological data 19 available would be to get something going or get the 20 information and find out what kind of exposures were 21 causing adverse effects. And we communicated freely 22 between the - those operations always. 23 Q. When you say that you would get the 24 information, would you ever get information about 25 toxicology of a material from other manufacturers? 124 1 MR. PIERCE: You mean from 2 publications - scientific publications, 3 treatises? 4 MR. BLANKS: From other 5 manufacturers. 6 MR. PIERCE: That's completely - 7 Q. Telephone? By mail? Brochures? I mean, 8 would you relate with other maufacturers? 9 A. Well, at the time -- Well, what time frame 10 are you talking about now? 11 Q. Up until the -- From '37 until your 12 industrial hygiene program began to change. 13 A. Okay. I -- I don't recollect. But it would 14 be very logical, if there were information available; 15 and there wasn't much available in those days. 16 Q. As more information began to be available in 17 your own laboratories, would you have a way of 18 communicating with your customers what you learned 19 about your products? 20 A. Yes. We did this through our safety data 21 sheets. We did it through publications, talks, 22 presentations at meetings, and answering questions 23 when we got them on the telephone or by letter, 24 whatever. 25 Q. Were you involved, Dr. Rowe, in the 125 1 preparation of safety data sheets? 2 A. Only peripherally. For the toxicological 3 information. This was Mr. Hoyle's primarily 4 responsibility. 5 Q. Did you have anything to do with the 6 distribution of the safety data sheets? 7 MR. PIERCE: Objection to the form 8 of the question. 9 A. No. That was pretty well standardized, I 10 think. I didn't -- Somebody wanted one special or 11 something like that, why, certainly we would just send 12 them one. That's all. 13 Q. I take it that from your early days in 14 involvement with the American Industrial Hygiene 15 Association you became aware of the American 16 Conference of Governmental Industrial Hygienists. 17 A. Yes. 18 Q. What isyour earliest recollection of 19 learning about that organization's existence? 20 A. Probably about the time I went to the 21 A.I.H.A. meeting. 22 Q. Were you aware that there came a time when 23 the American Conference of Governmental Industrial 24 Hygienists published a list of chemicals and exposure 25 levels associated with those chemicals? 126 1 A. Yes. 2 Q. How is it that you learned of this 3 information? 4 A. I can't answer you for sure because this was 5 common knowledge. Everybody that was working in the 6 A.C.G.I. started publishing the threshold limit 7 values. Anybody in the field was - became aware of 8 it. I don't even know when the first one was. It was 9 probably mid-Fifties or some such time; but everybody 10 in the field knew about that, I think. 11 Q. You're familiar with the National Safety 12 Council, are you? 13 A. Yes, to some extent, but not -- I never 14 worked with them real closely. 15 Q. Are you aware that the National Safety 16 Council used to publish the A.C.G.I.H. T.L.V. list in 17 its periodical? 18 A. I think there were a number of publications 19 that published that list. 20 Q. If anyone wanted to find the A.C.G.I.H 21 T.L.V. list, would it have been hard to find if they 22 tried? 23 MR. PIERCE: Objection to the form 24 of the question. 25 A. I wouldn't think so. 127 1 Q. I take it that being aware of that list and 2 familiar with it, you know that there's a section that 3 deals with mineral dust. 4 A. Yes. 5 Q. In your work at Dow, do you recall ever 6 being involved with any toxicity testing for asbestos? 7 A. No. 8 Q. Or of asbestos? 9 A. No. 10 Q. Do you recall that in the earliest of the 11 A.C.G.I.H. T.L.V. lists that you're familiar with that 12 asbestos was one of the mineral dusts that was listed? 13 A. I'm aware it was one, yes. 14 Q. Would you know one way or the other of any 15 evaluation of asbestos dust in the air at any Dow 16 facility? 17 MR. PIERCE: Objection to the form 18 of the question. 19 A. I guess I'd ask you to repeat, please. 20 Q. Yes, sir. I'm trying to find out if you 21 know one way or the other whether anyone has ever 22 conducted any air samples at a Dow facility for 23 asbestos. 24 A. I don't know. 25 Q. Would you know, Dr. Rowe, one way or the 128 1 other if Dow has ever manufactured a product in which 2 asbestos was a component? 3 A. I don't recall. 4 Q. Did you have records available to you in 5 your work that would tell you what products Dow 6 manufactured and what their constituents were? 7 A. I think that that would be information that 8 was available. Whether I had it or not, I don't know. 9 Q. If we go back to the early part of your 10 career -- And I don't mean necessarily the first day 11 but the first few years - where would you have gone to 12 find out what materials Dow manufactured and what 13 their constituents were? 14 A. I don't know. 15 Q. I see from your C.V. that in 1954 it shows 16 that you were the director of toxicology research 17 section of the biochemical research laboratory. 18 If we go to that point in time or shortly 19 thereafter, would there be a place there that you 20 would know to go to find out products Dow manufactured 21 and what their constituents were? 22 A. Well, the Dow catalog would have given the 23 names of all the products and the constituents, what 24 information would have been available, if I had asked 25 for it from the - from the production plant or whoever 129 1 was involved. 2 Q. What do you mean by a "Dow catalog"? 3 A. Product catalog. 4 Q. There was in existence a Dowproduct catalog 5 that you recall? 6 A. Yes. 7 Q. How far back in time do you recall there was 8 a Dow catalog? 9 A. I don't know. 10 Q. Would you know one way or the other, 11 Dr. Rowe, if asbestos was used in your laboratory in 12 the late 1930's through 1954 when you became the 13 director? 14 A. No. 15 Q. Are you aware thatasbestos wassometimes 16 used as a filtering agent in chemical testing? 17 MR. PIERCE: Objection - 18 A. Yes. 19 MR. PIERCE: -- to the form. 20 Q. You learned that as part of your training as 21 a chemist in chemistry? 22 A. Yeah. Occasionally usedasbestos, yes. 23 Q. But do you recall one way or the other if 24 that was done at any Dow facility, the use of asbestos 25 as a filtering agent? 130 1 MR. PIERCE: Asked and answered. 2 A. I don't know where all it was or wasn't 3 used. 4 Q. Do you recall if Dow was a manufacturer of 5 chlorine? 6 A. Yes. 7 Q. Have you, yourself, been to the facilities 8 where chlorine was manufactured? 9 A. I was never there. 10 Q. Would you know one way or the other if 11 asbestos was used as a membrane in the cells that were 12 used to make chlorine? 13 A. I don't know. 14 MR. PIERCE: Objection to the 15 form; asked and answered. 16 Q. I'm sorry. I didn't hear you. I didn't 17 hear your answer, sir. 18 A. I don't know. 19 Q. Was Dow a manufacturer of chlorine in the 20 1930's when you began there, to your knowledge? 21 A. My recollection is I -- Yes. 22 Q. And I think you told us that part of your 23 work was evaluating halogenated hydrocarbons; and 24 chlorine would be one of the halogen chemicals, 25 correct? 131 1 A. Yes. 2 Q. Are you familiar with what was called the 3 American Standards Association? 4 A. Peripherally. 5 Q. Are you aware that they in the past 6 generated consensus standards? 7 A. I don't recall what kind of standards they 8 were. 9 Q. But you do recall that they generated 10 standards? 11 A. The ANSI standards, yes. 12 Q. And A.S.A., the American Standards 13 Association, later became the American National 14 Standards Institute or ANSI. You know that? 15 A. No. 16 Q. Do you recall having access to any of the 17 A.S.A. standards while you were at Dow? 18 A. I remember seeing them. I couldn't tell you 19 when. 20 Q. Would you recall, Dr. Rowe, if you would 21 have known that asbestos was a component of any of the 22 thermal insulation materials used in any of Dow's 23 facilities from 1937 to 1954? 24 MR. PIERCE: Asked and answered. 25 A. Yes. It was a commonly used pipe 1 insulation. 132 2 Q. Do you recall seeing any - any information 3 from manufacturers of thermal insulation products 4 containing asbestos about any health hazards from 5 asbestos in your work at Dow up until 1960? 6 A. I don't recall specifically, no. 7 Q. Would you, Dr. Rowe, have ever been involved 8 as a Dow employee in visiting someone else's 9 operations other than Dow's where Dow products were 10 being used in evaluating either the toxicological or 11 industrial hygiene aspects of a Dow product? 12 A. Yes. 13 MR. PIERCE: Objection to the form 14 of the question; it's compound and it's 15 confusing. 16 But go ahead and answer it. 17 A. Yes. 18 Q. What do yourecall inthat regard, Dr.Rowe? 19 A. The one I recall was a visit - And this was 20 essentially an industrial hygiene visit - in the early 21 days in Texas in a flour mill which was using methyl 22 bromide. And I was asked to go down there and talk to 23 them about methyl bromide. And they wanted some air 24 samples taken, which I did. 25 Q. And about whenwould that have been, sir? 133 1 A. That would have been in the early Forties, 2 probably. Around '40 or somewhere after that. 3 No, no. I can't answer you exactly. It 4 would be early days. 5 Q. Methyl bromide was used as a fumigant for 6 grains? 7 A. Yes. 8 Q. Is part of evaluating the industrial hygiene 9 aspects of a product a consideration of how that 10 product is going to be used in the field? 11 MR. PIERCE: Objection to form of 12 the question. 13 A. Yes. 14 Q. And essentially what you were doing in 1940 15 or thereabouts whenever you made this trip to the 16 field in Texas was evaluating its use in the field: 17 is that accurate? 18 A. I guess I would agree that's part of the 19 part of the program, yes. 20 Q. Did you have any involvement at Dow in 21 writing any kind of labeling or instructions that had 22 to do with health and safety in the use of products 23 that Dow manufactured? 24 A. At times. 25 Q. How far back would that go in your career at 134 1 Dow, as best you can recall, Dr. Rowe? 2 A. I cannot tell you. I don't know. 3 Q. In writing labeling or instructions for use 4 that have to do with health and safety of products, is 5 it important to know how those products are going to 6 be used in the field? 7 A. Insofar as reasonably possible. 8 Q. And how would you, as a manufacturer working 9 for a manufacturer of products, determine how products 10 are going to be used in the field? 11 MR. PIERCE: Objection to form of 12 the question. 13 A. Well, products are usually designed for a 14 particular use; but there are times when your 15 customers don't care about you knowing what they're 16 going to be used for. 17 Q. I'm not sure I understand how that fits into 18 your - the information you need to know to write 19 labeling and instructions for use. 20 A. Well, if you don't - if you're not sure 21 that - how it's going to be used, then you don't know 22 what kind of exposures to anticipate. 23 Q. And that's why you need to know how a 24 product is going to be used in the field? 25 A. Any bit of information is helpful. 135 1 MR. PIERCE: Maybe this would be a 2 good time to take a brief recess. 3 We've been going more than an hour. 4 MR. HOBSON: That's fine. Take a 5 break. 6 (AT THIS TIME A BRIEF RECESS WAS 7 TAKEN, AND THE PROCEEDINGS THEREAFTER 8 RESUMED AS FOLLOWS:) 9 (By Mr. Hobson) 10 Q. Dr. Rowe, did you have any involvement in 11 your job at Dow in recommending that Dow have a person 12 designated as a full-time industrial hygienist? 13 A. No. 14 Q. Do you have any knowledge as to who it was 15 that did initiate the creation of an industrial 16 hygiene position at Dow? 17 A. Dr. Irish. 18 Q. Were you in on any of the discussions that 19 led up to the creation of the position? 20 A. I don't recall. 21 Q. Did you have anything to do with the 22 selection of Mr. Hoyle? 23 A. No. 24 Q. Did you know Mr. Hoyle before he became the 25 industrial hygienist? 136 1 A. No. 2 Q. Did you have anythingto do with anyof the 3 training or orientation of Mr. Hoyle when he took the 4 industrial hygiene position? 5 A. Yes. 6 Q. What did you do in that regard, sir? 7 A. Acquainted him with the toxicological work 8 that we were doing and all in that area. 9 Q. Wasit yourimpression that Mr.Hoyle was 10 not familiar with toxicology before he took the 11 position, or would you know one way or the other? 12 MR. PIERCE: Objection to the 13 form. 14 A. I don't believe he was. 15 Q. What did you do to orient or explain to 16 Mr. Hoyle about toxicology? 17 A. I don't recall. 18 Q. You, yourself -- Sir, I think you've said 19 that you began being involved in the American 20 Industrial Hygiene Association about 1940. 21 Did you go to other American Industrial 22 Hygiene Association meetings after the early 1940's? 23 A. Yes. 24 Q. Were you a regular attendee at those 25 meetings? 137 1 A. Quite regular. 2 Q. Once Mr. Hoyle had the position, would he 3 have gone to the meetings, also - 4 A. Yes. 5 Q. -- to your knowledge? Was there anyone else 6 at Dow while it was just Mr. Hoyle being the 7 industrial hygienist and yourself that went to the 8 American Industrial Hygiene Association meetings on a 9 regular basis? 10 A. Other people went. I can't attest to how 11 regular. 12 Q. Did Dr. Irish go on several occasions, that 13 you're aware of? 14 A. He was a regular. 15 Q. Anyone else who went more than just once or 16 twice, that you recall, from Dow up until there were 17 other people hired in industrial hygiene for 18 Mr. Hoyle? 19 A. Dr. Adams went quite regularly. 20 Q. Do you recall if Dr. Irish or Dr. Adams made 21 presentations? 22 A. I don't recall. 23 Q. Has any of your interest as an industrial 24 hygienist professionally while you were at Dow dealt 25 with particulates? 138 1 MR. PIERCE: Objection to the form 2 of the question and the 3 categorization. The witness has 4 already indicated his particular role 5 in industrial hygiene. 6 But go ahead and answer the 7 question. 8 A. I guess I'd like to have you repeat it. 9 Q. Yes, sir. I'm curious to know if you in 10 your position at Dow had any particular interest in 11 particulates from a toxicology standpoint. 12 A. No. 13 Q. Was there anyone else at Dow, to your 14 knowledge, whose interest was in the area of 15 particulate toxicology? 16 A. No. 17 Q. If you had occasion to need some information 18 about particulate toxicology, where would you go to 19 get that information? 20 MR. PIERCE: Object to the form of 21 the question. 22 A. I would expect that I would go to the 23 primary manufacturers of the particular product that 24 if we had an interest. 25 Q. Was it your experience, Dr. Rowe, when you 139 1 were at Dow that if a customer of Dow's came to you 2 and asked you for toxicity information regarding a Dow 3 product that they would be relying on you to provide 4 them with accurate and as complete information on the 5 toxicity of that product as you had available? 6 A. Yes. 7 MR. PIERCE: Objection to the form 8 of the question. 9 Q. I'm sorry, sir. 10 A. Yes. 11 Q. When you were doing your work at Dow, did 12 you ever do any human experimentation in your 13 laboratories, that you're aware of? 14 A. Yes. 15 Q. How far back in time do you recall there 16 being human experimentation at Dow's laboratories? 17 A. Probably 1940 - 18 Q. Is there -- I'm sorry. Go ahead. I didn't 19 mean to cut you off. 20 A. Roughly. I can't identify it specifically. 21 Q. What kinds of human experimentation was 22 being done in the approximately early 1940's, as best 23 you recall, sir? 24 A. Primarily odor thresholds, irritation 25 thresholds in the early days. 140 1 Q. How would you go about conducting this work? 2 A. Well, you'd create a chamber, establish a 3 concentration, measure it, enter the chamber, and see 4 what happens. 5 Q. Who would be the the people who were 6 involved in actually entering the chamber and being 7 exposed to the materials? 8 A. Dr. Irish, Dr. Adams, and myself. Even 9 Mr. Hoyle or whoever else happened to be available. 10 Q. In essence you were doing human 11 experimentation on the staff of the laboratory. 12 A. That's all. 13 Q. And was this prior to Dr. Gay being hired by 14 Dow? 15 A. Yes. 16 Q. How long did you all continue to do 17 experiments on yourselves? 18 A. I can't answer you. Don't know. 19 Q. Would it have been more than ten years, you 20 think? 21 A. Oh, yes. 22 MR. PIERCE: By "experiments," you 23 mean threshold of odor and precisely 24 what Dr. Rowe described; is that 25 correct, Mr. Hobson? 141 1 MR. HOBSON: Yes. Whatever they 2 did. 3 (By Mr. Hobson) 4 Q. Was there a point in time that you thought 5 better of the human experimentations on yourself and 6 stopped for that reason, or why did you stop? 7 MR. PIERCE: Objection to form of 8 the question. 9 A. I didn't know we stopped. 10 Q. Okay. As far as you know, when you left Dow 11 there was still the same kind of human experimentation 12 going on? 13 A. I -- I wasn't a part of it at that time 14 but -- I don't know. 15 Q. Do you recall that methyl bromide was one of 16 the materials that you would do human experimentation 17 on in the early 1940's? 18 A. No. 19 Q. And was itlater done? 20 A. I don't think it was ever done. 21 Q.Did you, sir, yourself, ever while you were 22 a Dow employee get involved in any epidemiology 23 studies? 24 A. No. 25 Q. Would you know if there were any 142 1 epidemiological studies done of Dow employees while 2 you were a Dow employee? 3 A. Yes. 4 Q. Who would have been doing those, sir? 5 A. Medical department andanother M.D., 6 epidemiologist, Dr. Cook. 7 Q. Would you recall Dr. Cook's first name? 8 A. No. Yes. Ralph. 9 Q. Can you give me the approximate time period, 10 as best you understand, when epidemiological studies 11 were begun at Dow? 12 A. No. I can't remember. 13 Q. Would you remember the decade? 14 A. Probably in the later Sixties. 15 Q. In the what, sir? 16 A. In the late Sixties. 17 Q. Did you have any role in giving input to the 18 epidemiologist or the medical department about what 19 should or should not be included in epidemiological 20 studies? 21 A. No. 22 Q. Did you provide any review of 23 epidemiological studies or drafts of epidemiological 24 studies for Dow? 25 MR. PIERCE: Objection to the form 143 1 of the question. 2 A. I don't recall any. 3 Q. Basically you got the report when it was 4 finished, and that's about it as far as the 5 epidemiological work went on? 6 A. Yes. 7 Q. Would you know one way or the other if any 8 epidemiological studies were ever done of the Dow 9 Freeport facility or any groups within Dow Freeport? 10 A. I don't know. 11 Q. To your knowledge, were epidemiological 12 studies performed by Dow published? 13 A. I don't know. 14 Q. Were you ever involved personally with 15 communicating health hazards that might be associated 16 with a particular compound to workers who would be 17 handling that material? 18 A. Yes. 19 Q. How far back in your Dow history would that 20 go, sir? 21 A. Early Forties. 22 Q. I guess part of your trip to Texas where you 23 were dealing with methyl bromide included that 24 activity, did it not, telling workers about the 25 hazards of methyl bromide? 144 1 A. I don't recall just what we did. 2 Q. Did you find that it was good practice to 3 advise employees about potential health hazards 4 associated with products they would be handling? 5 MR. PIERCE: Objection to the 6 form. 7 A. We made that information available to 8 anybody. 9 Q. And, in fact, I think you have published, 10 have you not, that telling the worker about health 11 hazards is necessary to help gain the assistance of 12 the worker in controlling risks to occupational 13 hazards, correct? 14 MR. PIERCE: Objection to the 15 form. 16 A. I think so. 17 Q. Would that be your position still today, -18 A. Yes. 19 Q. -- Dr. Rowe? 20 A. Yes, it would. 21 Q. Workers should be informed about potential 22 risks of the use of any materials that they work with? 23 A. Yes. 24 Q. As far as you're aware, Dr. Rowe, was that 25 Dow's practice for the time periods you worked at Dow 145 1 to inform its workers about any kind of health risks 2 associated with products the workers would be 3 handling? 4 A. It was a general policy. 5 Q. Are you aware of any instance where a 6 decision was made not to tell Dow employees of any 7 particular health risk associated with a product that 8 they would be handling? 9 A. No. I don't believe that ever happened 10 but -- Not to my knowledge. 11 Q. And certainly if it had come to your 12 attention, I think, based on what I've seen of your 13 writings, you would have taken any steps necessary to 14 prevent it, would you not have? 15 MR. PIERCE: Objection to the 16 form. 17 A. I probably would. 18 Q. Have you ever been accused of being bashful, 19 Dr. Rowe, in your professional activities? 20 A. No. I don't believe so. 21 Q. I understand that one of your interests in 22 the past has been occupational carcinogens; is that 23 correct? 24 A. Only as one facet of toxicology. 25 Q. What is your recollection of how early in 146 1 your career you began to be interested, as one facet 2 of toxicology, in occupational cancers? 3 A. I don't know. 4 Q. Was Dow, to your knowledge, ever a 5 manufacturer of aromatic amines? 6 A. Yes. 7 Q. Tell me what you're aware of as far as Dow 8 being a manufacturer of aromatic amines. 9 MR. PIERCE: Let me now interpose 10 an objection. Are aromatic amines a 11 part of this case? Are we going to go 12 through every product that Dow has ever 13 manufactured in its history? When are 14 we going to get to the relevant aspects 15 for which Dr. Rowe is here? 16 MR. BLANKS: What was that 17 objection? Is that one to form? 18 MR. PIERCE: Let's get to 19 relevance on this because we're really 20 getting to the point where it's way 21 beyond the toleration point in terms of 22 extraneous materials. Dr. Rowe is here 23 to provide you his answers to questions 24 related to a certain litigation, not on 25 a broad fishing expedition relating to 147 1 nothing even closely resembling 2 relevancy here. So, please, let's get 3 to the matters before us. 4 MR. BLANKS: Well, we are trying 5 to be tolerant of your repeated 6 objections and attempts to coach the 7 witness and instruct him; and we'll 8 proceed with our discovery deposition 9 of areas that the doctor has knowledge 10 of. 11 MR. PIERCE: Well, I've interposed 12 my objections; and I add another one 13 for your insinuations and your 14 outrageous statement that you just 15 made. 16 Q. I think we're back to my question, Dr. Rowe. 17 Can you tell me what you recall about Dow 18 having manufactured aromatic amines, please? 19 A. Well, aniline was a product, has been and 20 was for a long time. 21 Q. Was aniline a product back in the late 22 Thirties when you joined the company? 23 A. As far as I know. 24 Q. Would you have become aware, then, shortly 25 after you joined the company of an association between 148 1 aromatic amines and bladder cancer in workers? 2 MR. PIERCE: Objection to the form 3 of the question. 4 A. At some time I became aware of it. 5 Q. Fairly early on in your career, you believe? 6 A. I have no recollection of time frame, no. 7 MR. PIERCE: Does that question 8 imply all aromatic amines? Are you 9 asking all aromatic amines or some 10 aromatic amines? 11 MR. HOBSON: I'm satisfied with 12 the question and answer. 13 MR. PIERCE: Okay. 14 (By Mr. Hobson) 15 Q. What is your earliest recollection, 16 Dr. Rowe, of learning of any association between 17 asbestos and cancer in humans? 18 A. I don't know. I can't recollect when. 19 Q. Can you even give me a decade? 20 A. No, I don't think so. 21 Q. Would the medical and scientific literature 22 as it was coming out in the area of occupational 23 carcinogens - is that something that you believe you 24 would have been trying to follow as closely as you 25 could, given your circumstances? 149 1 A. No. 2 Q. Was cancer being caused by chemicals that 3 you were assessing in your laboratories at the 4 biochemical research laboratory at Dow anything that 5 you attempted to determine? 6 A. Yes. 7 Q. How early on would yourecall that you at 8 the biochemical research laboratories were trying to 9 find out if chemicals that you were assessing could 10 cause cancer? 11 A. I don't know. Time frames areelusive. 12 Q. One of the items that you've brought here to 13 the deposition, Dr. Rowe, we've marked as Plaintiffs' 14 Exhibit 760600 Dow. And it's titled, "A Historical 15 Account of Dow's Environmental Stewardship," by Eugene 16 E. Kenega. Did I say that right? 17 A. "Ke-nig-a" is the way it's pronounced. 18 Q. I apologize. Is this the article that 19 you brought responsive to a subpoena (tendering 20 document)? 21 MR. PIERCE: (Reviewing document). 22 Counsel, may I ask, are the yellow 23 tabs yours? 24 MR. HOBSON: Yes. We've added 25 yellow tabs and -- 150 1 MR. PIERCE: And the blue 2 underlines? 3 MR. HOBSON: Yes. 4 MR. PIERCE: And the additional... 5 MR. HOBSON: We'll take off the 6 yellow tabs, but unfortunately we can 7 only mark on... 8 MR. PIERCE: Okay. I just wanted 9 it to be clear. 10 MR. HOBSON: Yes. 11 (By Mr. Hobson) 12 Q. That's one of the articles you brought, 13 Dr. Rowe? 14 A. I believe so. 15 Q. What led to the generation of this article, 16 if you know, sir? 17 A. I don't remember. 18 Q. Did you know the author? 19 A. Yes. 20 Q. What do you know about the author's work? 21 A. He was very much interested in environmental 22 issues. 23 Q. And he was an employee of Dow, was he? 24 A. Yes. 25 Q. Can you give me some time frame for how long 151 1 this gentleman was employed by Dow? 2 A. No, I don't remember. 3 Q. I wanted to ask you -- And I think Counsel 4 may have another copy of it. 5 MR. HOBSON: You've got my only 6 one. 7 MR. PIERCE: (Tendering 8 document to Mr. Hobson) 9 (By Mr. Hobson) 10 Q. On the second page of this document, it 11 appears that it attributes a 1938 article to -- A 12 statement in 1938, I guess it is. Let me ask you, 13 sir, because I don't know what it implies. Looking at 14 this article that's Exhibit 760600 DOW, on page 173 15 there's a paragraph in the right-hand column that 16 starts out "1938." Could you take a look at that, 17 sir, and tell us what that means to you (tendering 18 document)? 19 A. (Reviewing document) I remember a meeting 20 with the F.D.A. I don't know what year it was, and I 21 don't recollect this particular situation. 22 Q. "This particular situation" being what, sir? 23 A. That we were testing materials for 24 carcinogenic - cancer-producing potential on 25 susceptible mice over a period of six months. 152 1 I don't remember if we were doing that at 2 that time. 3 Q. Does this article appear to you to say that 4 this work was being done in 1938? 5 A. That I can't attest to. I don't remember 6 at - at that time. 7 Q. There's a name here of "H. C. Spencer." I 8 don't recollect that as being a name we've talked 9 about. 10 Can you tell us who Mr. Spencer was? - or 11 maybe you did. I'm sorry. Dr. Spencer. You did tell 12 us. I beg your pardon. 13 Sir, I need to ask your indulgence for a 14 moment on this. Is it your testimony that you just 15 don't recall that you did this work in 1938; or is it 16 your recollection that you recall it did not happen in 17 1938? 18 A. My recollection: I don't recall being 19 engaged in that in 1938 or that early. 20 Q. Can you tell us that it's wrong? 21 A. No. 22 Q. There's mention here of someone named Dorsey 23 R. Mussell, M-u-s-s-e-l-l. Can you tell me who that 24 is, sir? 25 A. He was -- He was a medical technologist who 153 1 worked with Dr. Spencer. 2 Q. As a med. tech., what kinds of things would 3 Mr. Mussell have been doing? 4 A. Preparing tissues for microscopic 5 examination and doing blood tests - "Blood counts," I 6 should say. 7 Q. Dr. Rowe, I'd like to ask you some questions 8 about some of your work that might have involved the 9 American Conference of Governmental Hygienists. 10 Have you worked with their T.L.V. committees 11 in the past? 12 A. On occasion. 13 Q. Would you tell me what occasions you recall 14 that you've worked on their T.L.V. committees? - or 15 "worked with their T.L.V. committees," I should say. 16 A. I don't recall being a member of the T.L.V. 17 committee or anything. That would not have been - 18 They wouldn't have done that, anyway. But they would 19 frequently call and ask what we - what data we had on 20 a particular substance and what we would recommend, 21 and we never hesitated to talk to them. 22 Q. I'm sorry. I didn't mean to cut you off. 23 A. We tried to be helpful. 24 Q. I have heard it said that you are an 25 ex officio member of the T.L.V. committee. Is that a 154 1 term you've ever heard? 2 A. I suppose if anyone sits down with them and 3 is not a member of that organization, that that's what 4 it would be called. 5 Q. Can you tell me approximately how many times 6 you recall sitting down with the T.L.V. committees? 7 A. I can't tell you. 8 Q. Would it have been probably more than ten 9 times? 10 A. I doubt it. 11 Q. Have you been present at a meeting of an 12 A.C.G.I.H. T.L.V. committee when a decision on a 13 T.L.V. was reached? 14 A. I don't remember. 15 Q. Can you remember any of thepeople that 16 you've met with in regards to the T.L.V.'s of the 17 American Conference of Governmental Industrial 18 Hygienists? 19 A. Professor Warren Cook. I don't recall 20 offhand members of the committee at that time other 21 than Warren. 22 Q. Have you ever opposed the adoption of 23 threshold limit values as exposure standards for laws? 24 A. Yes. 25 Q. Have you been involved in -- Strike that. 155 1 I take it, Dr. Rowe, that you understand how 2 threshold limit values were intended to be used. 3 A. I can't answer that the way it's phrased. 4 Q. Do you understand, sir, that threshold limit 5 values were never intended to be exact cutoffs between 6 safe and hazardous? 7 A. I think that's a fair statement. 8 Q. And that exposures that occur at or even 9 below the threshold limit value may in some cases 10 still result in an occupational disease? 11 MR. PIERCE: Objection to form. 12 A. Anything is probable. "Possible," I should 13 say. 14 Q. There -- Certainly, as a toxicologist, sir, 15 I would believe that you would accept that there is 16 wide variation in individual susceptibility for human 17 beings. 18 A. Yes. 19 Q. And as such, then, it is impossible to 20 predict the outcome of an exposure for any given 21 individual. 22 MR. PIERCE: Objection to the 23 form; asked and answered. 24 A. It's not impossible to predict. 25 Q. But to predict with certainty, I guess, it's 156 1 impossible. 2 A. Well, what degree of certainty? 3 Q. Have you been involved in any discussions 4 that concern the establishment of a threshold limit 5 value and how - what percentage or what portion of a 6 population that T.L.V. will protect? 7 MR. PIERCE: I'm going to object 8 to the form of the question in that a 9 portion of it is actually tes 10 attempted testimony. 11 But go ahead. 12 A. I will have to have the question factored 13 before I can attempt to answer it. 14 Q. What kinds of factors would you need to 15 know, sir? 16 A. Well, restate it. 17 MR. HOBSON: Let me ask the young 18 lady to read it back. That way we'll 19 have it exact. 20 THE REPORTER: "QUESTION: Have 21 you been involved in any discussions 22 that concern the establishment of a 23 threshold limit value and how - what 24 percentage or what portion of a 25 population that T.L.V. will protect?" 157 1 A. That's two questions. I can't answer two 2 questions at once. 3 (By Mr. Hobson) 4 Q. Which two questions do you see there, 5 Dr. Rowe? 6 A. You asked if I'm involved - been involved in 7 any of the - of the setting of threshold limits. I'll 8 have to answer that question "yes." 9 Q. All right, sir. 10 A. But with respect to percentile of control 11 people, I'll have to answer "no." 12 Q. My question really was intended to find out 13 if you had any discussions about what percentage would 14 be protected in discussing T.L.V.'s. And you're 15 telling me you've not had any such discussions; -16 A. No. 17 Q. -- is that right? 18 A. Right. 19 Q. Do you know Mr. Hill who was an industrial 20 hygienist at one time for Dow at Rocky Flats in the 21 Boulder, Colorado, area? 22 A. I do not. 23 Q. Don't recall having met him? 24 A. No. 25 Q. I believe, sir, that you have played some 158 1 part in formulating air sampling strategies for 2 control of occupational diseases as part of your 3 professional work. Is that right? 4 A. That's right. 5 Q. And I understand from your - from your 6 writings that you are a firm believer in area 7 monitoring of industrial operations. 8 MR. PIERCE: Objection to the form 9 and to what you do or do not 10 understand. 11 Q. Is it true, Dr. Rowe, that you are an 12 advocate of area sampling in industrial operations? 13 A. Yes, sir. 14 Q. And if I've read your writings correctly, 15 you are an advocate of doing as much area sampling as 16 possible. Is that right? 17 A. I can't answer that quite that exact in that 18 respect. Anything is possible. You can spend a 19 hundred percent of your time, that's possible; but 20 it's impossible to do so. 21 Q. You're an advocate of doing a great deal of 22 area air sampling in industrial operations, correct? 23 A. As much as is reasonably possible. 24 Q. Why is that, sir? 25 A. Because in any area - occupational area 159 1 that I'm aware of, concentrations fluctuate and 2 duration of exposure fluctuates. 3 Q. And why would area sampling be preferable to 4 you over personnel sampling, then? 5 MR. PIERCE: Objection to form. 6 A. I didn't say that. 7 Q. Would it be? 8 A. I think the best monitor is personnel 9 sampling, but that's difficult in many instances to do. 10 Q. Why do you think that area sampling gives 11 you a good handle on exposure variations? 12 A. It tells you what areas are - what the 13 fluctuations are within particular given areas of the 14 workplace; and it will identify leaks, anything else 15 that may happen. 16 Q. Identify intermittent activities? 17 A. I don't know what you mean by that. 18 Q. Something that doesn't happen all the time? 19 A. Yeah. Yes. 20 Q. Do you know -- You're familiar with the term 21 "biological monitoring," are you not? 22 A. Yes. 23 Q. How does biological monitoring work with 24 doing area sampling and toxicology in protecting a 25 worker's health? 160 1 A. It's another parameter. 2 Q. And how would you, sir, as a health 3 professional, utilize biological monitoring in 4 protecting a worker's health? 5 A. Well, biological monitoring measures the 6 integrated exposure to the individual, if it's - if 7 it's predicated upon blood concentrations, urine 8 analyses, breath samples; and it can tell you whether 9 people are doing their job correctly. 10 Q. And I think you've also published that 11 biological monitoring can indicate whether or not your 12 exposure level is adequate or not; isn't that true? 13 MR. PIERCE: Objection to the form 14 of the question. 15 A. It is one parameter. 16 Q. So, if you're using known toxic materials, 17 would you agree, sir, that biological monitoring is 18 important to incorporate into the overall health and 19 safety activity to know whether or not your exposure 20 levels are adequate? 21 A. It's one parameter. 22 Q. An important one? 23 MR. PIERCE: Objection to the 24 form. 25 A. It's not possible with everything; but where 161 1 it is reasonably possible and analytical methods are 2 available, it's helpful. It's a parameter in total 3 evaluation. 4 Q. Would you include chest X ray as one method 5 of biological monitoring? 6 A. I'll leave that to the radiologists. 7 Q. You're not familiar with industrial hygiene 8 programs - occupational safety and health programs 9 that incorporate chest X rays into biological 10 monitoring? 11 A. Oh, yes. 12 Q. So, in some cases chest X rays are included 13 in biological monitoring in health and safety 14 programs. 15 A. It can be. 16 Q. Are you familiar with the term 17 "pneumoconiosis-producing" dust? 18 A. Somewhat. 19 Q. Would you know one way or the other if a 20 chest X ray could be one of the appropriate biological 21 monitoring tools for a pneumoconiosis-producing dust 22 exposure? 23 A. If they were positive, it would probably 24 indicate - it would indicate something had happened 25 there. If they're negative, it doesn't mean anything 162 1 except nothing has happened. It doesn't tell me what 2 the exposure would be. 3 Q. Yes, sir. And to get the exposure, that's 4 the reason you would go do air sampling. If I 5 understood you, you told me that finding - the 6 findings of a chest X ray will not tell you the 7 quantity of exposure to that individual. And my 8 question to you, sir, is in order to get the quantity 9 of exposure, that requires some sort of air sampling, 10 does it not? 11 MR. PIERCE: Let me object to the 12 repetitive nature of the questioning 13 and remind you that Dr. Rowe has 14 identified himself as a toxicologist. 15 But go ahead and answer. 16 A. A chest X ray only would be -- Well, I 17 shouldn't say "only" - would not indicate when 18 necessarily an exposure occurred or what intensity the 19 exposure was. So, it's qualitative and certainly 20 could not be used to quantitate what an exposure was 21 at some previous period of time. 22 Q. And if we wanted to know the answer to when 23 the exposure occurred and how much the exposure was, 24 the way to find the answer to those questions is to do 25 air sampling; is that correct? 163 1 MR. PIERCE: Objection; it's a 2 compound question. 3 A. It's kind of like getting the horse before 4 the cart. You can't retrospectively conduct air 5 samples. 6 Q. I understand that, sir. But what my 7 question is, is that if you wanted to know how much a 8 person was exposed to of a pneumoconiosis-producing 9 dust, the way to answer that question is to do air 10 sampling, isn't it? 11 MR. PIERCE: Continuethe 12 objection. 13 A. I still don't understand -- I'm trying to 14 explain, but I'm not getting through. Tell me again. 15 Air -- Go ahead. 16 Q. All right, sir. If we wanted to know how 17 much a person was going to be exposed to and we're 18 talking about a pneumoconiosis-producing dust, the way 19 to find out that question is to do air sampling while 20 they're doing their work, correct? 21 A. That's prospective, yes, sir. 22 Q. And if we're doing our air sampling 23 prospective and we're taking chest X rays of the 24 potentially exposed people as we go, then you can have 25 an assessment as to whether or not the exposures the 164 1 person is receiving is responsible for a lung 2 disease. Do you agree with that? 3 A. Well, yes. 4 Q. And as I've understood your writings, Would 5 you agree that, then, if you've got historical air 6 sampling information and you've got historical 7 biological monitoring, it's the combination of the two 8 that gives you a handle on whether or not your 9 exposure levels that you're setting in the workplace 10 are adequate? 11 MR. PIERCE: Once again I'd like 12 to object to questions phrased in terms 13 of your understanding. 14 But go ahead and answer the 15 question. 16 A. It will give you -- No. It will give you an 17 indication of whether you're within an acceptable 18 range on the basis ofjudgment of peers or others. 19 Q. Doing the biological monitoring along with 20 the air sampling is part of the checking of the 21 judgment of the peers as to the adequacy of the 22 exposures levels, correct? 23 A. It's one of the parameters. 24 Q. Have you ever had any discussions with any 25 of the A.C.G.I.H. T.L.V. committees regarding 165 1 asbestos? 2 A. No. 3 Q. How about with any pneumoconiosis-producing 4 dust? 5 A. Not that I recollect. I don't recollect 6 any. 7 Q. Dr. Rowe, do you know or did you know 8 Jim Hammond? 9 A. Yes. I know Jim Hammond. 10 Q. Have you ever had any professional dealings 11 with Professor Hammond while he was an employee of 12 Exxon and while you were an employee of Dow that 13 involved company business? 14 A. I don't recollect any. 15 Q. Yours has been through professional 16 associations, - 17 A. Yes. 18 Q. -- your association with him? Do you know 19 Arthur Pabst? 20 A. Who? 21 Q. Arthur Pabst, P-a-b-s-t. 22 A. That doesn't ring any bells. 23 Q. He was an industrial hygienist at Mobil or 24 was - 25 A. I don't -- 166 I Q. -- predecessor - 2 A. I don't know him. 3 Q. Do you recall having any professional 4 dealings that were part of your work at Dow, not 5 through the professional associations, with any of the 6 oil company industrial hygienists? 7 A. With Dr. White. 8 Q. Dr. Norman White? 9 A. I don't recall others. 10 Q. What was your business dealing with II Dr. White, as you recall? 12 A. I don't recall. We were -- We were 13 schoolmates. We have known each other for 55 years 14 60 years. We've talked about business at times. I 15 don't recollect what we talked about. 16 Q. Would you recall Allan Dooley? 17 A. I knew Allan -- I knew the name. I know - 18 I know Allan Dooley. 19 Q. Did you ever have any Dow company business 20 dealings with him? 21 A. Not that I know of. 22 Q. Did you know Lucian Renes? 23 A. Who? 24 Q. Lucian Renes, R-e-n-e-s, who was at 25 Phillips? 167 1 A. No, I did not. 2 Q. Would you have known Mr. Dooley when he was 3 working for the State of Pennsylvania before he went 4 to Texaco? 5 A. I -- I did not know Al closely at all. 6 We -- Typical meeting acquaintances. 7 Q. I take it that you knew Warren Cook. 8 A. Yes. 9 Q. He was located in Michigan for some time; is 10 that right? 11 A. Yes. 12 Q. Did you know him before he moved to 13 Michigan? 14 A. I don't know if I can answer your question. 15 Q. Do you recall ever talking to Dr. Cook about 16 asbestos at all? 17 A. No. 18 Q. Did you know Dr. Wilhelm Hueper? 19 A. I had met him. That's all. 20 Q. Can you recall what context you met 21 Dr. Hueper in? 22 A. No. 23 Q. Do you know of his work at all? 24 A. Yes. I know a little of it. Very little of 25 it. 168 1 Q. Is his work something you particularly 2 followed or just happened to come across it in the 3 literature? 4 A. No. We didn't follow it. 5 Q. I asked you about Dr. Drinker at Harvard. 6 Did you work with anyone at Harvard? 7 A. I don't think so. I don't recall any... 8 Q. Harvard was never a contractor for any 9 purpose to Dow, that you're aware of? 10 A. I don't think so, no. 11 Q. Would you recognize the name John - I think 12 it's "Staudt," S-t-a-u-d-t? 13 A. No. 14 Q. Other than Harvard at the school of public 15 health there, can you tell me what other public health 16 or occupational health programs you recall were in 17 place in the late Thirties and early Forties? 18 A. I don't recall. 19 Q. Do you recall Dow using any consultants from 20 any of the schools of public health while you were - 21 A. I beg your pardon. 22 Q. Do you recall Dow using any consultants in 23 the area of health and safety from any of the schools 24 of public health while you were at Dow? 25 A. I don't recall any. 169 1 Q. Did you know Dr. Carl Nau, N-a-u? 2 A. Yes. 3 Q. How did you know Dr. Nau? 4 A. Met him in a meeting. 5 Q. When you were just beginning your career at 6 Dow, you began to publish some of your findings, I 7 believe. Is that right? 8 A. Yes. 9 Q. Were you encouraged to publish your results 10 at Dow? 11 A. Yes. 12 Q. How were you encouraged to publish? 13 A. Executives of the company - particularly 14 Willard Dow - wanted it to be published. 15 Q. And who was Mr. Dow? 16 A. He was president of Dow Chemical Company. 17 Q. How is it that you understood that Mr. Dow 18 wanted this information published? 19 A. My understanding is that he is the 20 individual who initiated the creation of the Dow 21 Chemical research laboratory because he was concerned 22 about occupational health and product safety, as well. 23 Q. Did you ever try to publish any of your 24 findings at Dow and were prohibited from doing so? 25 A. No, sir. 170 1 Q. When articles that you were going to publish 2 were being considered for publications, who within Dow 3 would review those articles before being published? 4 MR. ALMQUIST: Object to the 5 question. It assumes somebody would 6 review it before he submitted it for 7 publication. 8 Q. I'll ask the question, Dr. Rowe. Did anyone 9 review your work prior to it being submitted to 10 publication at Dow? 11 A. Yes. 12 Q. May I know who? 13 A. Well, our close colleagues in the 14 laboratory; if there was anything involving the legal 15 side of it, the legal department it would be passed 16 through; and the manufacturing operation product 17 manufacturing plant superintendent if it involves his 18 product. 19 Q. And I take it each one of those reviews 20 would generate comments to you, and then you would 21 make an election about incorporating those comments or 22 not? 23 A. I can't ever having - remember changing 24 anything unless it was a technicality. 25 Q. Did they just never make any changes in 171 1 substance - recommendations to you, that you can 2 recall? 3 A. No, except to compliment us on getting the 4 information out. 5 Q. What other companies do you recall in the 6 same time frame - the late Thirties, early Forties, 7 into the Fifties - doing the same thing, having a 8 toxicological laboratory and having published a great 9 deal of information about their work? 10 A. Dr. Smyth at Mellon Institute on behalf of 11 Carbide and Carbon published a certain amount, not as 12 much in the early days as they did later. 13 Q. If we talk about up until 1960, would you 14 know from your review of the literature who would have 15 generated the most information, comparing Dow and 16 Mellon and Du Pont? 17 A. I think I pub - we published more than 18 anyone. 19 Q. Would you publish your methods as well as 20 your results? 21 A. I don't know what you mean. 22 Q. When you would do a toxicological test and 23 publish the results would you tell the reader how you 24 did the test? 25 A. I believe those were - that was automatic in 172 1 the introduction as to what was done and how it was 2 done, as best we could describe it. 3 Q. So, if anyone wanted to do similar-type 4 toxicity testing of materials, right there in your 5 works were the means and the techniques to be used to 6 do the tests? 7 A. I would think so. 8 Q. And those were published in the open and 9 scientific literature for anyone to find who cared to 10 look? 11 A. Yes. 12 MR. HOBSON: I understand we're 13 out of tape; so, let's take a break. 14 MR. PIERCE: No. Let's -- If 15 we're out of tape, it's appropriate -16 In accordance with the agreement, the 17 two hours are up for the afternoon 18 session; and we can continue tomorrow. 19 (REPORTER'S NOTE: AT 20 APPROXIMATELY 2:40 P.M., ON OCTOBER 1, 21 1992, THE DEPOSITION WAS RECESSED. 22 AT APPROXIMATELY 9:00 A.M. ON 23 OCTOBER 2, 1992, WITH ALL PARTIES 24 PRESENT, THE DEPOSITION RESUMED AS 25 FOLLOWS:) 173 1 RESUMPTION OF EXAMINATION BY MR. HOBSON: 2 Q. Good morning, Dr. Rowe. 3 A. Good morning. 4 Q. I've had a chance to look through some of 5 the documents that you brought yesterday, and I have a 6 few questions for you about the documents. 7 When you retired from Dow, sir, I take it 8 that some of the files that you had maintained at your 9 offices you kept with you after your retirement. Is 10 that correct? 11 A. Yes. 12 MR. PIERCE: Objection to form 13 of the question, as to whether you take 14 or not. 15 Q. Would you be kind enough to tell me, sir, 16 what documents you have at your home that came from 17 your work at Dow? 18 A. I went through what I had that - 19 MR. PIERCE: Excuse me. Could I 20 have a clarification on this question? 21 When you say that came from his work at 22 Dow, you mean his personal materials 23 that he may have collected or official 24 documents from Dow? I think that 25 question is ambiguous and vague, and I 174 1 object to it for those reasons. 2 A. I tried to keep a library. I have no 3 official documents from Dow. I have not even a 4 complete listing of publications. I have some of 5 them. Those that were even vaguely related to this 6 action I pulled out for reproduction for you. 7 Q. When you were still working at Dow and you 8 would generate correspondence, did you maintain any 9 kind of a chronological file of your correspondence as 10 opposed to a subject filing? 11 A. No. 12 Q. So, each bit of correspondence that you 13 would generate day to day would be filed by its 14 subject? 15 MR. PIERCE: Objection to the 16 form. 17 A. That was my generalpractice, yes. 18 Q. You say that you triedto maintain a 19 personal library while you were at Dow; is that right? 20 A. I beg your pardon. 21 Q. You said that you tried to maintain a 22 personal library while you were at Dow? Is that what 23 you said, sir? 24 A. I suppose you could call it that. 25 Q. What would you have included in your 175 1 personal library while you were at Dow? 2 MR. PIERCE: Objection to the form 3 of the question. 4 A. Reprints of copies of talks that I gave, 5 talks and papers of other people that I thought might 6 be useful to me in the future. 7 Q. How did you have those reprints and talks 8 organized while you were at Dow, those that were in 9 your personal library? Were they by subject or some 10 other way? 11 A. General practice was by subject. 12 Q. Did you tend to have subjects that were 13 specific chemicals or specific substances or were they 14 broad categories like toxicology, industrial hygiene, 15 or did it include both? 16 MR. PIERCE: Objection to the form 17 of the question. 18 A. It was some of each. 19 Q. Did you maintain any bound textbooks that 20 were yours personally while you were at Dow? 21 A. I don't remember whether they -- I had 22 access to the library. And at that time I probably 23 had a text of my own on Patty's Industrial Hygiene and 24 Toxicology which was my personal copy. 25 Q. Would you recall which edition you had, sir, 176 1 As your personal copy? 2 A. At that time it was the first edition. 3 Q. Do you still have your first edition? 4 A. Yes. 5 Q. Do you have any other textbooks now that 6 were available to you while you were at Dow? 7 A. I don't recall. 8 Q. In going through some of the documents that 9 you brought yesterday I have found some I'd like to 10 ask you about. There's two pages here, Dr. Rowe, that 11 I can't connect to anything. 12 Can you tell me, sir, what they - what they 13 are and where they came from (tendering document)? 14 MR. PIERCE: Mr. Hobson, are you 15 marking this for identification? 16 MR. HOBSON: Well, I might. It 17 depends on what it is. I want to make 18 sure it really is something he brought, 19 though. 20 A. (Reviewing document) I cannot tell you 21 where I got that. 22 (By Mr. Hobson) 23 Q. What is it, sir? 24 A. It's a discussion of - of occupational 25 controls, T.L.V.'s, and the like. 177 1 Q. Can you place it in time for us at all? 2 A. No, I can't. 3 Q. Would you recall who was having the 4 discussion or - 5 A. I have no recollection of having put this in 6 my file. When I went through it, it looked like 7 something that might have some interest. So, like I 8 said, I pulled things like that out. 9 Q. Can you tell from where you had it filed 10 whether this is something you had while you were at 11 Dow? 12 A. I can't tell, no. 13 Q. Was it your practice after you left Dow to 14 add things to your files from time to time? 15 A. Yes (tendering document). 16 Q. Thank you. Here's another document, sir. 17 And I'd ask the same questions. Can you tell by 18 looking at this where it came from or what it is 19 (tendering document)? 20 MR. PIERCE: (Reviewing document) 21 MR. BLANKS: Don't you all have 22 your own stack of documents over there 23 that you can look at? 24 MR. PIERCE: Mr. Hobson, I notice 25 that this has a sticker for Plaintiffs' 178 1 Exhibit; but there's no number there. 2 MR. HOBSON: Yes, sir. We are 3 trying to identify documents with a 4 certain series that, if we can, will 5 include the date so that you can 6 organize documents chronologically. 7 That's why we haven't put a number on 8 it yet. 9 MR. PIERCE: Thank you (tendering 10 document to the witness). 11 A. (Reviewing document) Do you have a 12 question? 13 (By Mr. Hobson) 14 Q. I think we do. Can you recognize this 15 document, Dr. Rowe; or can you tell us anything about 16 it? 17 A. I can't tell you where or when it was 18 presented. It's obviously a draft of a presentation 19 that Dr. Schwetz was - made at some meeting. 20 Q. And who was the author, sir? 21 A. Dr. Schwetz. 22 Q. And what capacity did Dr. Schwetz have when 23 you knew him? 24 A. He was basically a teratologist. 25 Q. Who was his employer, sir? 179 1 A. Beg pardon? 2 Q. Who was his employer? 3 MR. PIERCE: At what point in 4 time? 5 A. He was a Dow employee intoxicology. 6 Q. Do you believe that this is a paper that was 7 likely drafted by this gentleman while he was a Dow 8 employee? 9 A. I'm quite certain it was. 10 MR. HOBSON: Perhaps Counsel could 11 indicate on that "Rowe 2" as the 12 exhibit number; or I will if you want 13 to pass it back. 14 MR. PIERCE: I don't want to mess 15 up your system (tendering document to 16 Mr. Hobson). 17 MR. HOBSON: It's not easy to 18 keep... 19 (PLAINTIFFS' EXHIBIT ROWE 2 20 WAS MARKED FOR IDENTIFICATION 21 PURPOSES. SAME WILL BE FOUND IN 22 THE EXHIBIT VOLUMES ATTENDANT TO 23 THIS DEPOSITION.) 24 (By Mr. Hobson) 25 Q. All right, sir. I've marked here as Rowe 2 180 1 Dr. Schwetz' paper; is that correct, sir? 2 A. Yes. 3 Q. And you found this paper by Dr. Swetz in 4 your files? 5 A. I found it in my category of general 6 toxicology. 7 Q. The first document I asked you about here 8 this morning I've now marked as Exhibit 1 and just 9 want to identify the fact that we did mark that 10 document as Exhibit 1. 11 MR. BLANKS: Why don't you make it 12 Exhibit 3, and we'll mark the notice as 13 Exhibit 1. 14 MR. HOBSON: Okay. Well, let me 15 have it back and I'll redo it. 16 MR. PIERCE: May I interject 17 something? How did you mark - 18 Yesterday youmarked some document. I 19 believe it was a C.V. of Dr. Rowe. 20 MR. HOBSON: Right. It has 141005 21 Rowe VK. 22 MR. PIERCE: I give up. 23 MR. HOBSON: Well, he was born in 24 1914. 25 MR. PIERCE: Oh, I see. 181 1 MR. HOBSON: It happens to be the 2 first date that appears on the 3 document. 4 (PLAINTIFFS' EXHIBIT ROWE 3 5 WAS MARKED FOR IDENTIFICATION 6 PURPOSES. SAME WILL BE FOUND IN 7 THE EXHIBIT VOLUMES ATTENDANT TO 8 THIS DEPOSITION.) 9 (By Mr. Hobson) 10 Q. Sir, we've marked as Rowe 3 the document I 11 questioned you about earlier. That's a document that 12 I think you told us some information about you 13 couldn't identify where it came from other than it was 14 in your files. There's a name that appears there on 15 the first page. Do you recognize the name at the 16 bottom of the first paragraph? 17 A. No, I do not. 18 Q. All right, sir. Thank you. Dr. Rowe, 19 here's another document that you brought yesterday. 20 And again I can't find a date on it; or for this one I 21 can't find the source, either. Could you look at 22 that, sir, and see if you could help me with either 23 one of those or both (tendering document)? 24 A. (Reviewing document) I can't tell you where 25 that was published. 182 1 Q. It appears that it could be a chapter from a 2 text. 3 A. Yes. 4 Q. Could you tell us if that's what it was? 5 A. That would be my assumption (tendering 6 document). 7 (PLAINTIFFS' EXHIBIT ROWE 4 8 WAS MARKED FOR IDENTIFICATION 9 PURPOSES. SAME WILL BE FOUND IN 10 THE EXHIBIT VOLUMES ATTENDANT TO 11 THIS DEPOSITION.) 12 (By Mr. Hobson) 13 Q. Doctor, this exhibit that you just looked at 14 we've now put an exhibit sticker on it, Plaintiffs' 15 Exhibit Rowe 4. And it's Chapter 8, "Pharmacokinetic 16 Studies in Evaluation of the Toxicological and 17 Environmental Hazards of Chemicals." (Tendering 18 document) And that would be a document that you 19 brought as part of your response to the request; is 20 that right, sir? 21 A. Yes, sir. 22 Q. If I could, sir, let me show you another 23 document which again I could not place in time and ask 24 you if you would look at that document and tell us 25 what it is, as best you can, sir (tendering 183 1 document). 2 A. (Reviewing document) This -- I cannot put a 3 time frame on it, either, at least not accurately. 4 Obviously this is an outline of a talk I was giving to 5 some group within Dow (tendering document). 6 Q. There are some what appears to be 7 handwritten notes or something. Can you tell us, 8 Dr. Rowe, if these two go together (tendering 9 document)? 10 MR. PIERCE: When you say "these 11 two," the document that Dr. Rowe just 12 reviewed? 13 MR. HOBSON: Yes. 14 MR. PIERCE: Because that's 15 unmarked right now. 16 MR. HOBSON: Right. I want to 17 know whether we need to put them 18 together and mark them as one or 19 two (tendering document to witness). 20 A. (Reviewing document) I do not believe that 21 these go together. 22 (By Mr. Hobson) 23 Q. All right, sir. 24 (PLAINTIFFS' EXHIBIT ROWE 5 25 WAS MARKED FOR IDENTIFICATION 184 1 PURPOSES. SAME WILL BE FOUND IN 2 THE EXHIBIT VOLUMES ATTENDANT TO 3 THIS DEPOSITION.) 4 (By Mr. Hobson) 5 Q. All right, sir. I have put a sticker on 6 this exhibit, Plaintiffs' Exhibit Rowe 5, which has a 7 heading, "Mission of Health and Environmental 8 Research." Sir, that's, I believe, the document that 9 you told us represented a presentation that you gave 10 sometime within Dow. Is that right? 11 A. Yes. 12 Q. This presentationthat's Rowe5, can you 13 place that in a decade at all for us; or can you tell 14 us what job title you might have had at the time you 15 gave that, Dr. Rowe? 16 MR. PIERCE: Objection to the form 17 of the question. 18 A. This would probablyhave been in the 19 mid-Eighties - or mid-Seventies. 20 Q. Thank you. 21 (PLAINTIFFS' EXHIBIT ROWE 6 22 WAS MARKED FOR IDENTIFICATION 23 PURPOSES. SAME WILL BE FOUND IN 24 THE EXHIBIT VOLUMES ATTENDANT TO 25 THIS DEPOSITION.) 185 1 (By Mr. Hobson) 2 Q. On the handwritten notes we've now put 3 sticker exhibit Rowe 6. Let me hand that back to you, 4 sir. Are those your notes? Is that your handwriting, 5 Dr. Rowe (tendering document)? 6 A. Yes. 7 Q. Can you tell us what this dealt with? What 8 does this mean to you, sir? 9 A. I don't know. 10 Q. Would you know if this was an outline for a 11 presentation or dealt with a paper you were going to 12 write, or can you tell us at all? 13 A. It -- It looks as though it was an outline I 14 used in making a presentation to a group that - I 15 don't know where. 16 Q. And since the last date at the top is 1975, 17 would it be fair to say that that was after 1975 you 18 gave this, or at least 1975 or later? 19 A. In that framework, yes. 20 Q. (Tendering document) Anotherdocument, sir, 21 that came yesterday from the attorneys -- I haven't 22 marked it yet because, again, I can't date it. 23 Could you look at that and tell us if you 24 can date it or place it anywhere, sir (tendering 25 document)? 186 1 A. (Reviewing document) 2 MR. PIERCE: You have a question, 3 Mr. Hobson? 4 MR. HOBSON: Yeah. I was waiting 5 for the answer. I'm sorry. 6 MR. PIERCE: If there's a question 7 pending, could you please read it 8 back (directed to the reporter)? 9 MR. HOBSON: I'll just ask another 10 one to save a little time. 11 (By Mr. Hobson) 12 Q. Can you place this document in time or tell 13 us what it is, Dr. Rowe? 14 A. This again would have been in the - in the 15 mid-Seventies. 16 Q. What kind of -- What was the purpose of the 17 document, as best you recall? 18 A. It was obviously a - a draft of a speech 19 that Dr. Blair wished to make somewhere. I don't know 20 where. 21 Q. This was not your speech? 22 A. No. 23 Q. Dr. Blair's speech? 24 A. Yes. 25 Q. There's handwriting on here. Can you tell 187 1 tell whose handwriting it is? 2 A. It looks like mine. 3 Q. Do you expect, then,that Dr. Blair gave you 4 his proposed speech and asked for your comments? 5 A. That would be my supposition. 6 Q. Let us put a stick on it, then, sir, if we 7 may, so as to make sure we have it identified. 8 (PLAINTIFFS' EXHIBIT ROWE 7 9 WAS MARKED FOR IDENTIFICATION 10 PURPOSES. SAME WILL BE FOUND IN 11 THE EXHIBIT VOLUMES ATTENDANT TO 12 THIS DEPOSITION.) 13 (By Mr. Hobson) 14 Q. We've marked as the documentyou've just 15 told us was a proposed presentation by Dr. Blair with 16 your handwritten notes on it as Rowe 7; is that right, 17 sir? 18 A. Yes. 19 Q. Thank you. Dr. Rowe, Ihave another 20 document I'd like for you to examine. I have done 21 some highlighting on this document which is mine; but 22 I'd like for you to identify this document for us, if 23 you could, please, sir. 24 A. (Reviewing documents) 25 MR. PIERCE: Do you have a 188 1 question, Mr. Hobson? 2 MR. HOBSON: Seem to be doing this 3 repeatedly. Yes, sir. 4 (By Mr. Hobson) 5 Q. I think the question on the floor was can 6 you identify this document for us. 7 A. It is a draft of a talk I gave. 8 Q. Can you place it in time, sir? 9 A. It, again, would have been in the 10 mid-Seventies. 11 Q. Would you know where this talk was given, if 12 it was given? 13 A. I believe it was given in a symposium in 14 Midland. 15 Q. Would this have been a Dow symposium? 16 A. It was a Dow symposium, but there may well 17 have been others - other people present. I don't know 18 (tendering document). 19 (PLAINTIFFS' EXHIBIT ROWE 8 20 WAS MARKED FOR IDENTIFICATION 21 PURPOSES. SAME WILL BE FOUND IN 22 THE EXHIBIT VOLUMES ATTENDANT TO 23 THIS DEPOSITION.) 24 (By Mr. Hobson) 25 Q. All right, sir. I've now put "Exhibit 189 1 Rowe 8" on the paper that I think you said was given 2 in the Mid-Seventies at a Dow symposium; is that 3 right, sir (tendering document)? 4 A. (Reviewing document) This is the one that I 5 just looked at. 6 Q. Yes, sir. 7 A. Yes. Okay (tendering document) 8 (PLAINTIFFS' EXHIBIT 400600 DOW 9 WAS MARKED FOR IDENTIFICATION 10 PURPOSES. SAME WILL BE FOUND IN 11 THE EXHIBIT VOLUMES ATTENDANT TO 12 THIS DEPOSITION.) 13 (By Mr. Hobson) 14 Q. Sir, let me show you Exhibit - We've put 15 "400600 Dow" as the exhibit number. I'll ask you, 16 sir, if you can identify that for us, please 17 (tendering document). 18 MR. PIERCE: (Reviewing document) 19 Is this one of the documents that 20 Dr. Rowe provided? 21 MR. BLANKS: This entire stack is 22 of that set. 23 MR. PIERCE: (Tendering document 24 to the witness) 25 Q. I think the question is, can you identify 190 1 that for us, Dr. Rowe. 2 A. Yes. 3 Q. What is it, please? 4 A. It's a reprint of a publication, an article 5 entitled, "The Response Attending Exposure of 6 Laboratory Animals to Vapors of Methyl Bromide." 7 Q. This would be a reprint from the scientific 8 literature where it was published; is that right? 9 A. It's a reprint from The Journal of 10 Industrial Hygiene and Toxicology, Volume 22, No. 6, 11 June, 1940. 12 Q. Do you know The Journal of Industrial 13 Hygiene and Toxicology where this article was 14 published? 15 A. Would you repeat, please. 16 Q. Yes, sir. Do you know of this journal where 17 this article was published? 18 A. Do -- I don't -- I guess I don't understand 19 yet what you're - 20 Q. Probably just too simple a question, 21 Dr. Rowe. I'm just trying to find if you, in fact, do 22 know about this journal where you published your 23 article. 24 A. Oh. Yes. 25 Q. Would you tell us what this journal is, or 191 1 what it was in 1940? 2 A. It's just an ordinary scientific pub 3 journal that publishes scientific papers. 4 Q. Was there any affiliation of this journal 5 with any group? 6 A. I don't believe so. It may -- It possibly 7 may have been associated with -- I'm not aware of 8 that. 9 Q. I think you've published in this journal on 10 more than just this one occasion, have you not? 11 A. Yes. 12 Q. Did you pick the journals that you submitted 13 your publications to in this time period of this first 14 exhibit here we're talking about of your publications? 15 A. At that date I probably did not. 16 Q. Who would have been selecting the journals 17 for publication in 1940? 18 A. I would expect Dr. Irish. 19 Q. Because you selected this journal to publish 20 in in 1940, do you think it likely that you had this 21 journal in your library at Dow? 22 MR. PIERCE: Objection to the form 23 of the question. The witness has 24 testified that he did not pick any 25 journal but that Dr. Irish did. 192 1 A. Yes, we hadthis journal. 2 Q. Do you recall how much before 1940 you would 3 have had this journal at Dow? 4 A. No. 5 Q. Which volume of the journal was this 1940 6 article published in? 7 A. Volume 22. 8 Q. Is it your experience that the usual 9 practice of these scientific publications is that they 10 change the volume number each year? 11 A. Not necessarily. 12 Q. Can you tell us approximately when this 13 journal began its publications? 14 A. No. 15 Q. Is this a journal that you in your work at 16 Dow relied upon for information about toxicology? 17 A. Yes. 18 Q. Is that article published in 1940 the same 19 reference here, then, that's number one in your 20 bibliography (tendering document)? 21 A. Yes. 22 Q. And I take it since it's number one, that's 23 your first scientific publication that you ever had 24 published. 25 A. Yes. 193 1 Q. Were there scientific publications coming 2 from other Dow scientists in the area of toxicology 3 that predated your 1940 article with Dr. Irish and 4 others, or would you know? 5 A. I don't know. 6 Q. Could this very well be, then, the first 7 scientific article on toxicology published at Dow, or 8 do you know? 9 MR. PIERCE: Objection to the form 10 of the question. 11 A. I don't know. 12 Q. What kinds of tests in forms of category 13 were you reporting on here in 1940 for methyl bromide? 14 A. The results of single vapor exposures, 15 repeated vapor exposures. (Reviewing document) 16 That's all. 17 Q. Would you categorize the tests that were 18 done reported here in this 1940 article as acute or 19 short-term testing? 20 A. Both. 21 Q. And that would be something different than 22 what would ordinarily be called "chronic" or more 23 long-range type testing; would that be right? 24 A. Not necessarily. 25 Q. How did the two overlap? 194 1 A. Basically in concept. 2 Q. Would you explain that, please. 3 A. Acute exposures are generally considered to 4 be single exposures. Chronic exposures can vary 5 anywhere from repeated - short-term repeated exposures 6 to long-term repeated exposures. 7 Q. And to qualify as chronic, do you have some 8 length of time that you continue the repeated 9 exposures in your definitions? 10 A. No. Really, one should not set a specific 11 time period for chronic -- "Chronic" is a very poor 12 word. It should be "repeated exposures over a 13 particular duration." 14 Q. Do you use the term "subacute" in 15 categorizing toxicity testing? 16 A. At some stages, yes. 17 Q. How would you use the term "subacute"? 18 A. Short-term repeated exposures. 19 Q. And what would be the proper category, then, 20 for long-term repeated exposures, if there is one? 21 A. Simply describing the duration of exposure 22 period. 23 Q. Are you aware of any reported associations 24 between methyl bromide and cancer today? 25 MR. PIERCE: Objection to the form 195 1 of the question. Objection to the 2 relevancy of this matter. 3 Go ahead and answer. 4 A. Would you repeat the question, please. 5 Q. Yes, sir. I'd like to know if you're now 6 aware of any reports of connection between methyl 7 bromide and cancer. 8 A. No. 9 (PLAINTIFFS' EXHIBIT 421200 DOW 10 (JIHT) WAS MARKED FOR IDENTIFICATION 11 PURPOSES. SAME WILL BE FOUND IN 12 THE EXHIBIT VOLUMES ATTENDANT TO 13 THIS DEPOSITION.) 14 (By Mr. Hobson) 15 Q. Another document that I believe you brought 16 yesterday, Dr. Rowe, we've marked as Exhibit 421200 17 DOW and in parentheses "JIHT," end parentheses 18 (tendering document). And I wonder, sir, is that 19 another one of the articles that you published in the 20 scientific literature while you were an employee of 21 Dow (tendering document)? 22 A. (Reviewing document) Yes. 23 Q. On the front page of that document there's a 24 handwritten number. I believe it's "121"; is that 25 right, sir? 196 1 A. Yes. 2 Q. Would you have any recollection of what that 3 means or why it's there? 4 A. Yes. 5 Q. What is it, sir? 6 A. That is a number that our toxicology file 7 room used to designate different publications that 8 were filed by - by number. In other words, this was 9 the hundred and twenty-first publication that was 10 filed in that compilation. 11 Q. I'm not sure I understand what the 12 compilation consisted of. Would you - 13 A. It was a file of publications by Dow people. 14 Q. Were all of these publications in this file 15 in the medical and scientific literature, or were 16 these internal to Dow, as well? 17 A. I don't know. 18 Q. Did the compilation have a name? 19 A. Not that I know of. 20 Q. And you say this was in a library. Was this 21 the library that you had at the biochemical research 22 laboratory, or was this the bigger library you told us 23 about that was available at Midland? 24 MR. PIERCE: Objection to the form 25 of the question; mischaracterization of 197 1 the previous statement of the witness 2 in use of terminology he did not use 3 and that it's compound. 4 A. This was in the biochemical research 5 laboratory. This was not designated -- This 6 designation has no reference to the general large 7 library - company library. 8 (PLAINTIFFS' EXHIBIT 480621 DOW 9 WAS MARKED FOR IDENTIFICATION 10 PURPOSES. SAME WILL BE FOUND IN 11 THE EXHIBIT VOLUMES ATTENDANT TO 12 THIS DEPOSITION.) 13 (By Mr. Hobson) 14 Q. Sir, I have another document that, I 15 believe, you brought yesterday. We've put Exhibit 16 Sticker on it 480621 DOW. And I would ask you, sir, 17 if you could look at that and tell us if you can 18 identify it (tendering document). 19 A. (Reviewing document) Yes. 20 Q. What is it, please? 21 A. It's a reprint of an article entitled, 22 "Toxicological Studies on Certain Commercial 23 Silicones." 24 Q. And you are one of the authors of that? 25 A. Yes. 198 1 Q. I noticed that the cover page of this 2 document differs from the previous one we talked 3 about. Can you tell me if there's any significance to 4 the cover page of this document (indicating document)? 5 A. Yes. 6 Q. What is that, sir? 7 A. The indication that reprints were purchased 8 by the Dow Corning Corporation for their distribution. 9 Q. What's the Dow Corning Corporation, as you 10 understand it? 11 A. It's a separate corporation called "Dow 12 Corning." 13 Q. Did you do any work that involved the Dow 14 Corning Corporation or its activities? 15 A. Yes. 16 Q. Was that why you were at Dow? 17 A. Yes. 18 Q. And your employer, now, was Dow Chemical 19 Company? 20 A. Right. 21 Q. Would you tell me about how you did your 22 work that involved the Dow - I'm sorry. I can't see. 23 Is it "Corning Company"? 24 A. We did it on a work order from them. 25 Q. They were essentially purchasing your 199 1 services? 2 A. Yes. 3 Q. And what kind of services would Dow Corning 4 have been buying from Dow Chemical? 5 A. Well, Dow Corning did not have any facility 6 at that time for this sort of work. And inasmuch as 7 it was owned in part by Dow Chemical, our services 8 were made available to them on an as-needed basis. 9 Q. Can you remember what time period Dow 10 Chemical would have been selling services to Dow 11 Corning? 12 A. It would have been at the - at the very 13 inception or creation of the Dow Corning corporation 14 and for a few years after that. I can't tell you how 15 many. 16 Q. Up here at the top of this document that 17 we've been examining that dealt with Dow Corning, 18 there's a number that's been stamped on it. 19 Do you know what that number represents, 20 Dr. Rowe? 21 A. I have no knowledge. 22 Q. That number was there in your file? 23 A. I presume so. 24 Q. Okay. Were there other business entities 25 besides Dow Corning that Dow Chemical provided 200 1 toxicity testing services to? 2 A. Not that I can recollect. 3 Q. Are you aware of any kinds of services 4 besides toxicology - toxicological services that the 5 biochemical research laboratory provided to any other 6 business entities besides Dow Corning? 7 A. I don't know. 8 Q. Dr. Rowe, have you ever heard of a company 9 called "Dowell"? 10 A. Yes. 11 Q. In what context have you heard of that 12 company, sir? 13 A. It was a subsidiary company of Dow. 14 Q. Of Dow Chemical Company, -15 A. Yes. 16 Q. -- as you understand it? 17 A. It was a subsidiary of Dow Chemical. 18 Q. Did you provide toxicity testing services 19 for subsidiary companies at the biochemical research 20 laboratory? 21 A. On occasion. 22 Q. And I take it if -- Would it be correct, 23 sir, then, that if it was a subsidiary company, you 24 would not be selling those services? 25 MR. PIERCE: Objection to the form 201 1 of the question. 2 A. I guess I don't understand your question. 3 Q. Well, I'm a bit confused. I asked you 4 earlier if you sold any services to any other business 5 entity besides Dow Corning, and you said that you 6 couldn't recall any. And now I've asked about Dowell, 7 and you say you've provided some services to them. 8 I'm wondering if they were sold to Dowell. 9 A. Well, Dowell is a part of Dow Chemical 10 Company. And when we did work for a - any subsidiary, 11 it was on a work order basis; and they would reimburse 12 us for that just on an accounting basis. 13 Q. Were there other subsidiaries of Dow 14 Chemical Company that you recall that you provided 15 services to at the biochemical research laboratory? 16 A. I don't recall any. 17 Q. Do you understand that Dowell - part of its 18 business involved doing work in the oil patch? 19 A. Do I understand what - 20 MR. PIERCE: Objection to the form 21 of the question. 22 Q. Do you understand that a part of Dowell's 23 business was providing services in the oil patch? 24 A. Yes. 25 Q. Would that include drilling muds, to your 202 1 knowledge? 2 A. I don't know. 3 Q. Has any of the work that you've been 4 involved with at Dow from a toxicological standpoint 5 dealt with drilling muds or their constituents, that 6 you're aware of? 7 A. I don't recollect. 8 (PLAINTIFFS' EXHIBIT 481100 DOW 9 (JIHT) WAS MARKED FOR IDENTIFICATION 10 PURPOSES. SAME WILL BE FOUND IN 11 THE EXHIBIT VOLUMES ATTENDANT TO 12 THIS DEPOSITION.) 13 (By Mr. Hobson) 14 Q. Let me show you another exhibit, if I could, 15 Dr. Rowe. It's 481100 DOW (JIHT). 16 A. (Reviewing document) 17 Q. Do you recognize this document, sir? 18 A. Yes. 19 Q. What is it, please? 20 A. The title is "Toxicological Studies on 21 Certain Commercial Silicones and Hydrolyzable Silane 22 Intermediates." 23 Q. And you're one of the authors? 24 A. Yes. 25 Q. And this is a reprint of its publication in 203 1 the scientific literature; is that right? 2 A. Yes. 3 Q. On the first page of the document - not the 4 page you're looking at, but the blank page that 5 precedes the one you're looking at - I see another 6 penciled number there. Do you see it toward the top? 7 A. Yes. 8 Q. And what number is it? I can't see it from 9 here. 10 A. One two four. 11 Q. Is that the same pencil numbering system 12 that you told us about a few moments ago with another 13 document where your library kept track of the 14 reprints? 15 A. I'm quite sure it is. 16 MR. PIERCE: Objection to the form 17 and to the characterization of the 18 previous testimony. 19 But go ahead and answer. 20 Q. I'm sorry, sir. I need your answer. 21 A. I'm quite sure it is. 22 Q. The previous document that - that we have 23 here - 421200 DOW (JIHT), had "121" on it. Are those 24 filed chronologically or with time by number? 25 A. Generally speaking, but I can't vouch for 204 1 that being - always being the case because this was 2 clerical work (tendering document). 3 Q. The document that has "121" on it was 4 published in 1942, and the document that has "124" on 5 it was published in 1948. Would that indicate to you, 6 sir, that if they followed the system, they - that you 7 understood was in place, that there would have been 8 two publications in between these that were kept in 9 the Dow files? 10 MR. PIERCE: Objection to the 11 form. 12 A. I don't know. 13 MR. PIERCE: You're asking for 14 sheer speculation but... 15 Q. Was there a list kept that told you what 16 Document No. 124 was or what Document No. 121 was? 17 A. Yes. 18 Q. What would you call that list, sir, if we 19 were to describe it? 20 A. I can't tell you whether it was a list. It 21 was an open folder with strips that were replaceable 22 in it with numbers on them and the titles on it. It 23 was not a compilation of such as you're looking at 24 there. 25 MR. ALMQUIST: Before we go on to 205 1 the next one -- We've been at this 2 an hour now. I think we might want to 3 take a 15-minute break right now. 4 MR. HOBSON: Okay. 5 (AT THIS TIME A BRIEF RECESS WAS 6 TAKEN, AND THE PROCEEDINGS THEREAFTER 7 RESUMED AS FOLLOWS:) 8 (By Mr. Hobson) 9 Q. Dr. Rowe, we'll begin again, if we could. 10 Dr. Rowe have you heard the term "central 11 research index" at Dow? 12 A. Yes. 13 Q. What is the central research index, as you 14 understand it, sir? 15 A. It was a repository for reports and 16 publications and the like. 17 Q. What is your understanding of what went into 18 the central research index? 19 A. I really don't recall what all went in 20 there. 21 Q. Did some of your work at the biochemical 22 research laboratories go into the central research 23 index? 24 A. I believe so. 25 MR. PIERCE: Objection to the 206 1 form. 2 Q. I'm sorry. I didn't hear your answer, sir. 3 A. I believe so. 4 Q. What kinds of things do you remember from 5 the biochemical research laboratory going into the 6 central research index? 7 A. Reports. 8 Q. Any particular kinds of reports or all 9 reports? Can you give me a definition of that? 10 A. I -- I don't recollect what criteria we even 11 used; but most all reports that were written and 12 circulated, a copy was put in the central file. 13 Q. Where was the central research index kept, 14 sir? 15 A. I don't remember. 16 Q. Were there other research indexes besides 17 the central research index? I've seen reference to a 18 western research index. 19 MR. PIERCE: Objection to the form 20 of the question, if there is one. 21 A. I don't know. 22 Q. Would you, sir, have had access to the 23 central research index? 24 A. Yes. 25 Q. Was there a listing somewhere of what was in 207 1 the central research index, that you recall? 2 A. I don't know. 3 Q. Who maintained the central research index? 4 A. I don't know. 5 Q. Would you know which grouping within the 6 company maintained the central research index? 7 A. No. 8 Q. If you wanted access to something in the 9 central research index, how would you go about getting 10 it, sir? 11 A. I'd have probably asked my secretary to get 12 it for me. 13 Q. And where she went to get it, you would not 14 know? 15 A. No. I do not know. 16 (PLAINTIFFS' EXHIBIT 511100 DOW 17 WAS MARKED FOR IDENTIFICATION 18 PURPOSES. SAME WILL BE FOUND IN 19 THE EXHIBIT VOLUMES ATTENDANT TO 20 THIS DEPOSITION.) 21 (By Mr. Hobson) 22 Q. Let me show you, sir, what we've marked as 23 Exhibit 511100 DOW and ask you if you can identify 24 that, please, sir (tendering document). 25 A. (Reviewing document) Yes. 208 1 Q. What is it, sir? 2 A. It's a reprint entitled, "Vapor Toxicity of 3 Trichloroethylene Determined by Experiments on 4 Laboratory Animals." 5 Q. It's a paper that you were one of the 6 authors on? 7 A. Yes. 8 Q. And this came fromyour files that you've 9 been keeping at your home? 10 A. I beg your pardon. 11 Q. This came from your files that you've been 12 keeping at your home? 13 A. Yes. 14 (PLAINTIFFS' EXHIBIT 520700 DOW 15 WAS MARKED FOR IDENTIFICATION 16 PURPOSES. SAME WILL BE FOUND IN 17 THE EXHIBIT VOLUMES ATTENDANT TO 18 THIS DEPOSITION.) 19 (By Mr. Hobson) 20 Q. Let me show you, sir, what we've marked as 21 Exhibit 520700 DOW and ask you if you can identify 22 this document (tendering document). 23 A. (Reviewing document) Yes. 24 Q. What is it, sir? 25 A. Vapor toxicity of -- It's a reprint of an 209 1 article entitled, "Vapor Toxicity of Carbon 2 Tetrachloride Determined by Experiments on Laboratory 3 Animals." 4 Q. And are you one of the authors of that 5 article? 6 A. Yes. 7 Q. And this is one of the documents that you've 8 brought with you to the deposition from your files you 9 keep at home? 10 A. Yes. 11 (PLAINTIFFS' EXHIBIT 551000 FDCLJ 12 WAS MARKED FOR IDENTIFICATION 13 PURPOSES. SAME WILL BE FOUND IN 14 THE EXHIBIT VOLUMES ATTENDANT TO 15 THIS DEPOSITION.) 16 (By Mr. Hobson) 17 Q. Let me hand you a document, sir, that we've 18 put a sticker on. It's Exhibit 551000 FDCLJ and ask 19 you if you can identify that, please (tendering 20 document). 21 A. (Reviewing document) Yes. 22 Q. And what is it, sir? 23 A. It's a reprint of an article entitled, 24 "Procedures for the Appraisal of the Toxicity of 25 Chemicals in Foods, Drugs and Cosmetics." 210 1 Q. You brought this to the deposition from your 2 files, sir, that you've kept at your home; is that 3 right? 4 A. Yes. 5 Q. You're not one of the authors of this 6 document, are you, sir? 7 A. No, sir. 8 Q. Could you recall how you came into 9 possession of this document? 10 A. I -- I don't recall. 11 Q. Is this a document that you had while you 12 were a Dow employee? 13 A. Yes, yes. 14 Q. Thank you, sir. 15 (PLAINTIFFS' EXHIBIT 560425 CARB 16 WAS MARKED FOR IDENTIFICATION 17 PURPOSES. SAME WILL BE FOUND IN 18 THE EXHIBIT VOLUMES ATTENDANT TO 19 THIS DEPOSITION.) 20 (By Mr. Hobson) 21 Q. Let me show you Document 560425 CARB and ask 22 you if you can identify that document, sir. 23 MR. PIERCE: (Reviewing document) 24 Mr. Hobson, there are some 25 markings on this document that 211 1 obviously were not there when provided 2 to you. You want to identify these for 3 the record, please? 4 MR. BLANKS: Sure. They're 5 obvious. We'll just agree that the 6 markings are obvious and they weren't 7 there when it was provided. The blue 8 highlighting on the document was not 9 there when you gave it to us. And that 10 will be the case on all of them where 11 we've put markings on them. And we'll 12 stipulate to that right now. 13 MR. PIERCE: The difficulty, 14 Mr. Blanks, is that, of course, there 15 will be copies made of this; and I 16 don't know -- If the blue shows up on 17 those copies, all we will see is an 18 underlining. 19 MR. HOBSON: It won't show up. 20 MR. PIERCE: It will not show up? 21 MR. HOBSON: On the copies, no. 22 And by the way, if anyone has any 23 concerns that the highlighting might 24 show up, I think you all have other 25 copies. If you want to substitute them 212 1 with the same exhibit sticker, that's 2 fine with me. 3 (By Mr. Hobson) 4 Q. I'm sorry. Dr. Rowe? 5 A. Yes? 6 Q. Would you identify that for us, please, 7 sir. 8 A. This is a reprint of an article entitled, 9 "The Interpretation of Threshold Limits for 10 Inhalation of Chemical Substances, Excluding Mineral 11 Dusts, with Recommendations for Improvement." 12 Q. And that's a document that you brought to 13 the deposition from your files kept at your home? 14 A. Yes. 15 Q. Do you recall how you came into possession 16 of this document? 17 A. No. 18 Q. Is this a document that you had while you 19 were a Dow employee? 20 A. I'm sure -- Yes. 21 Q. Is this the Dr. Smyth that you mentioned 22 yesterday that, I think, was associated with Mellon? 23 A. Yes. 24 Q. Do you recall using this document any way in 25 your work at Dow, Dr. Rowe? 213 1 A. I don't recall any specifics. 2 Q. Thank you, sir. 3 (PLAINTIFFS' EXHIBIT 560425 DOW 4 WAS MARKED FOR IDENTIFICATION 5 PURPOSES. SAME WILL BE FOUND IN 6 THE EXHIBIT VOLUMES ATTENDANT TO 7 THIS DEPOSITION.) 8 (By Mr. Hobson) 9 Q. Let me show you a document that's marked 10 560425 DOW and ask if you can identify that, please, 11 sir (tendering document). 12 A. (Reviewing document) Yes. 13 Q. What is it, sir? 14 A. It's a copy of an article entitled, 15 "Toxicological Information Useful for Industrial 16 Hygiene Purposes with Emphasis on Topical Contact. 17 Q. Are you the author of that paper, sir? 18 A. Yes. 19 Q. In what context was it written, please? 20 A. It was written for a presentation at the 21 American Industrial Hygiene Association Annual 22 Meeting, April 25th, 1956. 23 Q. And was it delivered there -24 A. Yes. 25 Q. -- in the format that's set out here in the 214 1 paper? This is the speech you gave? 2 A. To the best of my knowledge. 3 Q. I mean, you would typically present the text 4 as it's written to the group when you delivered the 5 speech. Is that right? 6 MR. PIERCE: Objection to form 7 of the question. 8 A. Yes. 9 Q. Looking back for a moment, sir, in560425 10 CARB, the paper that we previously spoke of by 11 Dr. Henry Smyth, Jr., it says "Presented as part of 12 the Donald E. Cummings Memorial Lecture at 13 Philadelphia, Pennsylvania, April 25th, 1956, before 14 The American Industrial Hygiene Association." 15 What is that lecture, sir, as best you 16 understand? 17 A. It's -- It's an award presented each year, 18 or almost every year, by the American Industrial 19 Hygiene Association, recognizing an individual's 20 contributions to the field. 21 Q. And is it your understanding, then, that 22 this text by Dr. Smyth is what was presented at that 23 lecture in 1956 at the American Industrial Hygiene 24 Association? 25 A. I cannot attest to that. 215 1 Q. Is that what it indicates to you on the face 2 of the document? 3 MR. PIERCE: Objection to the 4 form. The witness has answered the 5 question. The document speaks for 6 itself. 7 A. I do not know whether it was presented in 8 its entirety. It would have been difficult, I think. 9 Q. Would you recall, sir, if you attended the 10 American Industrial Hygiene Association meeting in 11 Philadelphia in 1956? 12 A. I don't recall. 13 Q. Did you usually attend the Cummings 14 Lectures - 15 A. Yes. 16 Q. -- when you went to the association 17 meetings? 18 A. Yes, I did. 19 Q. Did those meetings tend to be - those 20 lectures tend to be well attended? 21 MR. PIERCE: Objection to form 22 of the question. It's vague and 23 ambiguous. 24 A. Would you restate your question, please. 25 Q. Yes, sir. When the American Industrial 216 1 Hygiene Association would meet and the Cummings 2 Lecture would be presented, was it well attended, as 3 you observed? 4 A. I -- In my opinion, yes. 5 Q. Do you have a recollection of Dr. Smyth 6 making this lecture - the Cummings Lecture - in 1956 7 in Philadelphia? 8 A. I don't recall it specifically. 9 (PLAINTIFFS' EXHIBIT 560800 DOW 10 WAS MARKED FOR IDENTIFICATION 11 PURPOSES. SAME WILL BE FOUND IN 12 THE EXHIBIT VOLUMES ATTENDANT TO 13 THIS DEPOSITION.) 14 (By Mr. Hobson) 15 Q. Let me hand you, sir, what's been marked as 16 560800 DOW (AMA-AIH) and ask you if you can identify 17 that, please (tendering document). 18 A. (Reviewing document) Yes. 19 Q. What is it, sir? 20 A. It's a reprint of an article entitled, 21 "Toxicity of Paradichlorobenzene." 22 Q. Are you one of the authors of this paper? 23 A. Yes. 24 Q. Thank you. I don't recall that we talked 25 about this name, although I may have forgotten. 217 1 F. Oyen, O-y-e-n. Could you tell us who that is, 2 please, sir? 3 A. Mr. Oyen was a pathologist. 4 Q. An employee of Dow, I assume. 5 A. Yes. 6 Q. Would you know if he's still living? 7 A. No. He is not living. 8 Q. Thank you. 9 (PLAINTIFFS' EXHIBIT 581000 DOW 10 (AIHAJ) WAS MARKED FOR IDENTIFICATION 11 PURPOSES. SAME WILL BE FOUND IN 12 THE EXHIBIT VOLUMES ATTENDANT TO 13 THIS DEPOSITION.) 14 (By Mr. Hobson) 15 Q. Let me show you Exhibit 581000 DOW (AIHAJ) 16 and ask you if you can identify that, sir (tendering 17 document). 18 A. (Reviewing document) Yes. 19 Q. What is it, please, sir? 20 A. It's a reprint of an article entitled, 21 "Toxicity of 1,1,1-Trichloroethane as Determined 22 Laboratory Animals and Human Subjects." 23 Q. And is that an article that you're a 24 coauthor on? 25 A. Yes. 218 1 Q. Thank you. Dr. Rowe, if I could, I want to 2 return to the previous article I asked you about, 3 560800 DOW (AMA-AIH) (tendering document). The 4 journal that this article is published in, could you 5 identify that for us, please, sir? 6 A. (Reviewing document) It's a reprint from 7 the A.M.A. Archives of Industrial Health. 8 Q. Are you familiar with that journal? 9 A. We used to publish in it. 10 Q. The A.M.A.: that's the American Medical 11 Association? 12 A. Yes. 13 Q. Are you familiar with the Journal of the 14 American Medical Association, as well? 15 A. Vaguely (tendering document). 16 Q. There's a number right here that is not real 17 legible on the side of the document. Can you tell us 18 what that number is, sir (tendering document)? 19 A. I don't know. 20 Q. Do you know what it symbolizes? It seems to 21 be in a different format than the others I asked you 22 about. 23 A. That's why I don't recognize it. 24 (PLAINTIFFS' EXHIBIT 561000 DOW 25 (AMA-AIH) WAS MARKED FOR IDENTIFICATION 219 1 PURPOSES. SAME WILL BE FOUND IN 2 THE EXHIBIT VOLUMES ATTENDANT TO 3 THIS DEPOSITION.) 4 (By Mr. Hobson) 5 Q. Let me show you the next article here marked 6 561000 DOW (AMA-AIH) and ask you, sir, if you can 7 identify that document for us (tendering document). 8 MR. PIERCE: (Reviewing document) 9 There's a stick-on on the last 10 page of this article which I assume is 11 yours, Mr. Hobson. 12 MR. HOBSON: That's right. We'll 13 take that off before it gets copied. 14 It was just a reference note, but 15 that -- If you want to leave it there, 16 it will help Dr. Rowe find the question 17 I want to ask. 18 MR. PIERCE: Fine (tendering 19 document to witness) 20 A. (Reviewing document) Yes? 21 Q. What is that article, sir? 22 A. It's a reprint of an article entitled, 23 "Toxicological Studies of Certain Alkylated Benzenes 24 and Benzene." 25 Q. And you're one of the authors on that 220 1 article, are you? 2 A. Yes. 3 Q. Who is the lead author on that article, sir? 4 A. It says Mr. Mark - M. A. Wolf. 5 Q. And that's -- One of the gentlemen you told 6 us about yesterday, I believe, was Mark Wolf, who was 7 a Dow employee? 8 A. Yes. 9 Q. The bibliography that's in theback of this 10 particular article, sir, I asked you some questions 11 yesterday about the Toxicological Reviews of the 12 American Petroleum Institute. And I happened to find 13 here that some of those are referenced. 14 Do you see the reference there where I've 15 put the little - 16 A. Yes. 17 Q. -- sticky? When you referenced an article 18 like that in a publication that you were a coauthor 19 on, would that indicate that you had access to that 20 article and reviewed it in preparing this article? 21 A. Yes. 22 Q. Thank you. 23 (PLAINTIFFS' EXHIBIT 590425 DOW 24 WAS MARKED FOR IDENTIFICATION 25 PURPOSES. SAME WILL BE FOUND IN 221 1 THE EXHIBIT VOLUMES ATTENDANT TO 2 THIS DEPOSITION.) 3 (By Mr. Hobson) 4 Q. Let me hand you, sir, Exhibit 590425 DOW and 5 ask you if you can identify it. Again, we have some 6 highlighting on there which we have added. 7 A. (Reviewing document) Yes. 8 Q. What is it, please, sir? 9 A. It's a reprint entitled, "Toxicological 10 Basis of Threshold Limit Values: 2. Pathological and 11 Biochemical Criteria." 12 Q. Are you an author on this article? 13 A. Yes. 14 Q. All right, sir. Thank you. 15 (PLAINTIFFS' EXHIBIT 600000 DOW 16 WAS MARKED FOR IDENTIFICATION 17 PURPOSES. SAME WILL BE FOUND IN 18 THE EXHIBIT VOLUMES ATTENDANT TO 19 THIS DEPOSITION.) 20 (By Mr. Hobson) 21 Q. Let me hand you what we've marked as 22 Exhibit 600000 DOW and ask you if you can identify 23 that, sir (tendering document). 24 MR. PIERCE: (Reviewing document) 25 MR. HOBSON: And, again, the 222 1 highlighting is mine. 2 MR. PIERCE: There is highligting 3 on this one, also? 4 MR. HOBSON: In a few places. 5 A. (Reviewing document) Yes. 6 Q. What is that item, please, sir? 7 A. It's a copy of a symposium. It's entitled, 8 "Symposium on Toxicology." 9 Q. And can you tell us where this symposium was 10 presented? 11 A. This symposium, as I recollect, was 12 presented in Houston. 13 Q. And who presented it, please, sir? Was 14 there a company sponsor, or was this a Dow symposium? 15 A. This was a Dow symposium. And as I 16 recollect, Texas management had invited other people 17 from outside of Dow to attend it. 18 Q. When you say "Texas management," who do you 19 mean there, sir? 20 A. I'm thinking particularly of Mr. Beutel. 21 Q. And who is Mr. Beutel? 22 A. He was general manager of the Texas 23 division. 24 Q. Of Dow Chemical Company? 25 A. Yes. 223 1 Q. Did this symposium actually get held, to 2 your knowledge? 3 A. Yes. 4 Q. You were there and were a presenter? 5 A. Yes. 6 Q. Who else attended who was not a Dow 7 employee; can you recall? 8 A. I don't recall. 9 Q. Can you recall approximately how many people 10 were in attendance at that symposium? 11 A. I don't know how many there were there. 12 Q. And would it -- Can you categorize it at 13 all? Was it more than a hundred? 14 A. It would be up in that neighborhood 15 somewhere. 16 Q. Do you remember where in Houston it was 17 held? 18 A. I can't tell you where it was. 19 Q. Some meetings are held at the Shamrock 20 Hilton, the old Shamrock Hilton or Shamrock Hotel in 21 Southwest Houston. Could that have been it? 22 A. I don't know. 23 Q. The presenters at this symposium, were they 24 all Dow employees? 25 A. May I refer to the - 224 1 Q. Yes, sir. Here's the contents page 2 (tendering document). 3 A. Yes (tendering document). 4 Q. Were all of the presenters from Dow in 5 Midland, or were there some Dow employees from other 6 locations? 7 A. These were all Midland people. 8 Q. You say that there were people who were not 9 Dow employees who were invited to attend? 10 A. Yes. 11 Q. Did some actually attend who were not Dow 12 employees? 13 MR. PIERCE: Objection to the 14 form; asked and answered several 15 times. 16 A. I presume so. 17 Q. Would you recall who was responsible for 18 sending out invitations to the meeting - the 19 symposium? 20 A. They were sent at the instigation of 21 Mr. Beutel. That's all I can tell you. 22 Q. The papers that are listed here in the 23 exhibit, is this the content of what was actually 24 presented at the symposium? 25 A. Best of my knowledge. 225 1 Q. Would you recall if Jim Hammond attended 2 this meeting? 3 A. I don't recall. 4 (PLAINTIFFS' EXHIBIT 601200 DOW 5 (I&EC) WAS MARKED FOR IDENTIFICATION 6 PURPOSES. SAME WILL BE FOUND IN 7 THE EXHIBIT VOLUMES ATTENDANT TO 8 THIS DEPOSITION.) 9 (By Mr. Hobson) 10 Q. Let me hand you, sir, Exhibit 601200 DOW 11 (I&EC) and ask you if you can identify that for us, 12 please. 13 A. (Reviewing document) Yes. 14 Q. What is it, please, sir? 15 A. It's a reprint of an article entitled, 16 "Evaluating the Industrial Hazards of New Chemicals. 17 Q. Are you one of the authors of that? 18 A. Yes. 19 Q. The cover page again seems to be different 20 from some of the other exhibits we've talked about. 21 Is there a reason for the cover page being different? 22 A. Well, it looks like it may have been 23 reprinted at the request of somebody. "Industrial and 24 Engineering Chemistry," I believe, I.E.C. would stand 25 for. It was presented at the National Safety Congress 226 1 in Chicago. I don't know. 2 Q. Did you present the paper at the National 3 Safety Congress? 4 A. Dr. Olson presented that paper. 5 Q. At the National Safety Congress? 6 A. Pardon? 7 Q. He did present it at the National Safety 8 Congress? 9 A. To the best of my recollection. 10 Q. Do you know this organization, Industrial 11 and Engineering Chemistry? 12 A. Well, that's a -- That's a journal. I 13 believe it's one of the many journals put out by the 14 A.C.S. 15 Q. American Chemical Society? 16 A. Yes. 17 (PLAINTIFFS' EXHIBIT 611000 DOW 18 (AIHAJ) WAS MARKED FOR IDENTIFICATION 19 PURPOSES. SAME WILL BE FOUND IN 20 THE EXHIBIT VOLUMES ATTENDANT TO 21 THIS DEPOSITION.) 22 (By Mr. Hobson) 23 Q. Now, let me show you Exhibit 611000 DOW 24 (AIHAJ) and ask you if you can identify that, please, 25 sir (tendering document). 227 1 A. (Reviewing document) Yes. 2 Q. What is it, please, sir? 3 A. It's a reprint of an article entitled, "The 4 Toxicity of Vinyl Chloride as Determined by Repeated 5 Exposure of Laboratory Animals." 6 Q. Are you one of the authors of that paper, 7 sir? 8 A. Yes. 9 Q. Thank you. 10 (PLAINTIFFS' EXHIBIT 611000 DOW 11 (RSCH) WAS MARKED FOR IDENTIFICATION 12 PURPOSES. SAME WILL BE FOUND IN 13 THE EXHIBIT VOLUMES ATTENDANT TO 14 THIS DEPOSITION.) 15 (By Mr. Hobson) 16 Q. Let me show you Exhibit 611000 DOW (RSCH) 17 and ask you if you could identify that, sir. 18 MR. HOBSON: The highlighting is 19 mine. 20 MR. PIERCE: Thank you, 21 Mr. Hobson. 22 A. (Reviewing document) Yes. 23 (By Mr. Hobson) 24 Q. What is it, please, sir? 25 A. It's a reprint of an article entitled, 228 1 "Evaluating the Toxicity and Hazards of Chemicals. 2 Q. And areyou one of the authors? 3 A. Yes. 4 Q. I notice thelast item in the bibliography 5 is a text by von Oettingen, I believe, if I recall 6 right. Do you see it there, sir, a text called 7 "Poisoning"? 8 A. Yes. 9 Q. Is that a text that you recall being in 10 Dow's library? 11 A. I don't recall it. 12 Q. If it's referenced there in your 13 bibliography, is it a reference that at least you and 14 your co-workers were aware of and utilized? 15 A. It probably was. I just don't recall it. 16 Q. Thank you, sir. 17 (PLAINTIFFS' EXHIBIT 670300 USSR 18 WAS MARKED FOR IDENTIFICATION 19 PURPOSES. SAME WILL BE FOUND IN 20 THE EXHIBIT VOLUMES ATTENDANT TO 21 THIS DEPOSITION.) 22 (By Mr. Hobson) 23 Q. Let me show you, sir, a document that we 24 have marked 670300 USSR and ask if you can identify 25 that for us (tendering document). 229 1 A. (Reviewing Document) Yes. 2 Q. What is it, please, sir? 3 A. It's a reprint of an article entitled, 4 "Industrial Toxicology and the Prevention of 5 Occupational Poisonings in the Chemical Industry." 6 Q. This is a translation from a foreign 7 article, correct? 8 A. It's a translation from a Russian article. 9 Q. Do you recall how you came to have this 10 article, Dr. Rowe? 11 A. No, I don't. 12 Q. This is one you brought from your personal 13 library at home to the deposition? 14 A. Yes. 15 Q. Would you have had this article while you 16 were still at Dow? 17 A. Yes. 18 Q. Can you recall if you ever utilized this 19 article in any of your work? 20 A. We always considered it for information that 21 we could glean from the literature. 22 Q. In what way do you recall having considered 23 this article, sir? 24 A. I beg your pardon. 25 Q. In what way do you recall having considered 230 1 this article? 2 A. It was of particular interest to me because 3 I knew Professor Letavet and Dr. Korbakova. 4 Q. And you met them on one of your visits to 5 Russia? 6 A. Yes. 7 Q. When was that visit, sir? 8 A. I think that was in 1963. 9 Q. This original Russian article was printed in 10 1967; so, it would have been printed after - published 11 after your visit there, then? 12 A. Must have been. 13 MR. BLANKS: It's a good witness. 14 Q. I apologize, Dr. Rowe. You didn't seem to 15 be as sure about the '63 date, is why I ask. I 16 apologize. I'm not trying to be cute or anything with 17 you. 18 Was there any particular part of this 19 Russian article that you found particularly 20 interesting in your work that you utilized? 21 A. I don't recall. 22 Q. Did you maintain correspondence with either 23 of these gentlemen after your visit in Russia? 24 A. No. 25 (PLAINTIFFS' EXHIBIT 730409 DOW 231 1 WAS MARKED FOR IDENTIFICATION 2 PURPOSES. SAME WILL BE FOUND IN 3 THE EXHIBIT VOLUMES ATTENDANT TO 4 THIS DEPOSITION.) 5 (By Mr. Hobson) 6 Q. Let me hand you Exhibit 730409 DOW and ask 7 you if you can identify this article, sir (tendering 8 document). 9 MR. PIERCE: (Reviewing document) 10 MR. HOBSON: It would help speed 11 things along if Dr. Rowe would look at 12 the first part after you've looked at 13 it, Counsel. 14 MR. PIERCE: No. I don't want to 15 do that. Did you make any markings in 16 this, Mr. Hobson, or your colleagues? 17 MR. HOBSON: I don't recall that I 18 did, but I won't tell you I didn't. 19 MR. PIERCE: Then I'd like to 20 check it through. 21 MR. BLANKS: In the event, what 22 should we do then? 23 MR. PIERCE: Excuse me? 24 MR. BLANKS: Well, on the 25 assumption that there might be some in 232 1 there, what about it? I mean, we 2 already said we marked these - 3 MR. PIERCE: I don't care what you 4 said, Mr. Blanks. 5 MR. BLANKS: Pardon me? 6 MR. PIERCE: I don't care what you 7 said, Mr. Blanks. I'd like to find out 8 if there are markings. You assure me 9 there are none - make that 10 representation - that's fine. 11 MR. BLANKS: Well, I don't think 12 that any that are in there were made by 13 me, if there are any. That paper looks 14 so boring I don't think I've even made 15 any. 16 MR. PIERCE: Want to start looking 17 through (directed to the witness)? 18 A. (Reviewing document) 19 (By Mr. Hobson) 20 Q. All right. Do you recognize that document, 21 Dr. Rowe? 22 A. I can honestly say that I don't recognize it 23 as such. 24 Q. Can you tell us -- Is this something you 25 brought from your library at home? 233 1 A. Yes. 2 Q. Would you have any recollection of why it's 3 in your library? 4 A. Yes. It's -- It's a general compilation of 5 methodology and examples of it in various categories 6 of toxicological evaluation. 7 Q. And do you know what it was used for, this 8 document? 9 A. My memory is vague about this, but I do 10 remember that - It must have been in 1973 because 11 that's when it's dated - that we tried to get our 12 experts in each of the fields of toxicology to write 13 up a comprehensive piece that could be used in 14 educating our other people. 15 Q. And by "our other people," who do you mean, 16 sir? 17 A. Whoever. 18 Q. Any Dow employee? 19 A. Anybody that -- If we happened to want to 20 use it for a symposium or education of new employees 21 and so on. 22 Q. The last sheet that's there, I think, is 23 handwriting. 24 A. Yes. I remember that. 25 Q. Can you tell me whose handwriting that is, 234 1 sir? 2 A. No, I can't. 3 Q. It's definitely not yours, though? 4 A. It's not mine. 5 Q. All right, sir. Do you recall, sir, ever 6 participating in any training sessions, yourself, 7 dealing with toxicology and what I'll call "hourly 8 workers" of Dow Chemical Company? 9 MR. PIERCE: Objection to the form 10 of the question. 11 A. Yes. 12 Q. How far back in your career at Dow does that 13 go, sir? 14 A. Probably started in the Nineteen - around 15 1940. 16 Q. And what do you recall about those sessions? 17 What did they deal with, sir? 18 A. The purpose was to acquaint people 19 employees in one area or another - salespeople, other 20 research people - about the significance of - or 21 existence of the biochemical research laboratory. 22 Q. And why would you want to do that? 23 A. Education. 24 Q. And what was the value to you in your work 25 in providing this education? 235 1 A. Well, people can't do anything about what 2 they don't know about. 3 Q. Could you tell me more what you mean by 4 that, sir? 5 A. Toxicology was unknown to almost even most 6 chemists. 7 Q. And, so, you were trying to get information 8 about toxicology to chemists and to people working 9 with chemists about the problems - the hazards of 10 chemicals that you dealt with. 11 MR. PIERCE: Objection to the form 12 of the question. 13 But go ahead and answer. 14 A. I don't know what limitations you are 15 referring to or what -- We -- We conducted safety 16 meetings throughout the plant, various groups, from 17 time to time, impromptu, some scheduled, where we 18 tried to explain the - what we did in the toxicology 19 section of the biochemical research laboratory. 20 Q. And as early as the 1940's, you found that 21 to be a good practice to follow, I take it. 22 A. Very, very, very good. 23 Q. And what I'm trying to learn, sir, in your 24 words, is why you found that to be a good practice. 25 MR. PIERCE: Objection. 236 1 Q. Why did you find it necessary to do? 2 MR. PIERCE: Objection to the 3 form. 4 A. We made every effort to create a 5 consciousness among employees about the safe handling, 6 proper procedures to use, and so forth in handling 7 chemicals. 8 Q. And in your words, sir, would you tell us 9 why that was something you found important to do at 10 Dow. 11 MR. PIERCE: Asked and answered. 12 Q. What was the benefit, sir? 13 A. We sought -14 MR. PIERCE: Objection. 15 A. -- to make it a safer place - a safer 16 workplace. 17 Q. Does your -18 MR. ALMQUIST: If you're switching 19 gears, we've been going for an hour. 20 Continue? Okay. 21 MR. PIERCE: How much do you have 22 left? Okay. 23 MR. ALMQUIST: We'll finish. 24 Q. Let me ask you one question, I guess, 25 Dr. Rowe. I've looked through your bibliography 237 1 that's attached to your C.V.; and I don't find listed 2 a chapter that I think you wrote in the second edition 3 of Patty. Did you write a chapter in the second 4 edition of Patty? 5 A. Yes. 6 Q. I may have missed it. Would you recall if 7 it's there? I didn't find it (tendering document). I 8 found the third edition but not the second edition. 9 1958. 10 A. (Reviewing document) I guess I don't 11 understand your question, then. 12 Q. Did you write a section of the second 13 edition of Patty that would have been published about 14 1958? 15 A. Your dates are -- I don't remember what all 16 was in the first edition and the second edition. 17 Q. Did you write a portion of the first 18 edition, as well? 19 A. I don't remember which edition it is. 20 That's my problem. 21 MR. HOBSON: All right, sir. I 22 think we're out of tape; so, I'll stop 23 at that point. 24 (SHORTLY AFTER THE RECESS WAS 25 CALLED, IT WAS DECIDED TO BREAK FOR 238 1 LUNCH. THEREFORE, AT 11:20 A.M. THE 2 DEPOSITION WAS RECESSED AND AT 12:30 3 P.M. RESUMED AS FOLLOWS:) 4 (By Mr. Hobson) 5 Q. Dr. Rowe, just before we broke for lunch, I 6 was asking you about your authorship in sections of 7 the various editions of the Patty's Industrial Hygiene 8 and Toxicology. In your bibliography you referenced 9 the third edition which was edited by George Clayton 10 and his wife. 11 Do you recall if you did have a chapter in 12 the earlier editions of Patty? 13 A. My confusion is with -- Which edition is 14 which? 15 Q. All right sir. The third edition that 16 Mr. and Mrs. Clayton did was published in 1981. 17 A. Okay. 18 Q. The earlier editions of Patty - I believe 19 the first edition was '48 and the second edition was 20 about 1958. 21 A. Okay. 22 Q. I thought that you had a chapter in at least 23 the 1958 Patty's. 24 A. Yeah. 25 MR. PIERCE: If you recall, 239 1 Doctor. All you can do is the best you 2 can do. 3 A. I had several chapters in that edition. I 4 don't remember the date. That was right around 1960, 5 though, - 6 Q. Yes, sir. 7 A. -- the one I'm referring to. 8 Q. I didn't find those chapters referenced in 9 your bibliography, though, the ones that would have 10 been around 1960. Is that just something you didn't 11 put in your bibliography that's your C.V.? 12 A. I don't -- I don't know. Is the volume as a 13 whole listed? I - 14 Q. I don't know, sir. Let me give it back to 15 you (tendering document). 16 MR. PIERCE: You have a stick-on 17 with arrows. Do you want those there? 18 MR. HOBSON: You can pull them 19 off, if you like. 20 A. (Reviewing document) It's not there. I 21 don't know why. 22 (By Mr. Hobson) 23 Q. All right, sir. One of the things that I 24 believe you were asked to bring to the deposition, 25 Dr. Rowe, was industrial hygiene and occupational 240 1 medicine texts. And I didn't find, when I went 2 through the stack, any texts. Some people who have 3 come to the depositions have only brought copies of, 4 perhaps, the cover page or something to the published 5 text. I was wondering if -- I didn't see those in 6 here. 7 Did you bring anything - any textbooks or 8 any parts of textbooks? 9 A. No, I did not. 10 Q. Do you have any some texts that were written 11 before 1965 on these subjects? 12 A. I have Patty. I don't know that I have any 13 other texts that were written that early. 14 Q. All right, sir. And you have Patty's first 15 edition? 16 A. No, I don't think I have the first edition. 17 I have the one that - that was published in about 18 1960's, around there. 19 Q. All right, sir. I'm sorry. I thought you 20 told - 21 A. And the - that's a one-volume deal. And the 22 next volume was a three-volume deal. I have -- I have 23 both of those but not the first edition. 24 Q. All right, sir. 25 MR. HOBSON: We want to attach as 241 1 Rowe Exhibit 1 the notice for the 2 deposition, and it does say with 3 subpoena duces tecum. And I think our 4 earlier discussion about the fact that 5 Dr. Rowe was not served with a subpoena 6 but his appearance is by agreement - 7 We will note that exception, but we 8 will ask that the notice of the 9 deposition be attached as Exhibit 1. 10 (PLAINTIFFS' EXHIBIT ROWE 1 11 WAS MARKED FOR IDENTIFICATION 12 PURPOSES. SAME WILL BE FOUND IN 13 THE EXHIBIT VOLUMES ATTENDANT TO 14 THIS DEPOSITION.) 15 (By Mr. Hobson) 16 Q. Dr. Rowe, does the term "environmental 17 stewardship" have meaning to you, sir? 18 A. Yes. 19 Q. What does it mean to you? 20 A. It means to me that - that almost anything 21 that has an impact on the environment ought to be 22 considered and handled in the - in the best way 23 available. 24 Q. Was environmental stewardship a term that 25 was in use at Dow? 242 1 A. I don't know whether that term specifically 2 was used or not. 3 Q. Were you at Dow practicing what you've just 4 described as "environmental stewardship" for your 5 products? 6 MR. PIERCE: Objection to the 7 form. 8 A. I believe so. 9 Q. How were you doing that, sir? 10 A. We were trying to convey all the information 11 that we had relative to downstream uses of products. 12 And I guess I don't know exactly what - what you're 13 referring to from the standpoint of specifics. 14 Q. Well, sir, I'd really like to know how the 15 description of environmental stewardship that you gave 16 me was practiced in general at Dow, if it was. 17 MR. PIERCE: Objection to the 18 form. The witness testified that 19 he doesn't even know if that term was 20 employed at Dow. 21 A. We're very conscious of by-product waste and 22 this sort of thing that can contaminate the 23 environment; and we did what I believe was 24 everything we had available to us, technology and so 25 forth, to avoid environmental contamination. 243 1 Q. You used the terminology a moment ago 2 "downstream uses." What did you mean by that, sir? 3 A. Well, you dispose of a material, you sell a 4 product, and you do everything you can to avoid having 5 it misused or, for example, dumped in a - in a dump or 6 whatever. 7 Q. How would you at Dow, in your own words, 8 deal with those kinds of problems for Dow Chemical 9 products? 10 A. Labeling, product brochures, following 11 regulations as close as we could, contacts with other 12 people in an attempt to avoid everything that we could 13 reasonably avoid in contamination of the environment. 14 Q. Would you know, sir, did Dow ever have as a 15 practice evaluating a potential customer before you 16 sold the product to the customer to make sure that 17 customer knew how to properly deal with the chemical 18 from a health and safety standpoint? 19 MR. PIERCE: I'll object to the 20 form of that question. 21 A. Yes. We had situations like that. 22 Q. Would you give me some of those examples 23 that you remember, sir. 24 A. I recollect one very early in which a 25 company wished to use methyl bromide as a fire 244 1 extinguisher. And we, even under threat of suit, 2 refused to sell it for that purpose. 3 Q. Are you saying that the company that wanted 4 to buy the material threatened to sue Dow if you 5 wouldn't sell it to them? 6 A. Yes. 7 Q. And even in the face of that, the decision 8 was made not to sell the product to the company? 9 A. That's my understanding. 10 Q. And what was the reason the decision was 11 made not to sell the product for that purpose? 12 MR. PIERCE: Asked and answered. 13 A. Because we believed that it was too 14 hazardous to use for such a purpose. 15 Q. What was the approximate time frame of that, 16 Dr. Rowe? 17 A. I can't be sure, but it would have been in 18 the early Forties. 19 Q. Would you have been maintaining a file of 20 customer inquiries or customer correspondence about 21 different Dow products? 22 A. I didn't. 23 Q. If -- Would it occur from time to time that 24 a customer would write to Dow and ask for information 25 about the safe use of a product and you would be asked 245 1 to respond? 2 A. It's possible. 3 Q. I know that it's possible, but do you recall 4 that actually happening? 5 A. Specifics I don't remember. I don't 6 remember, but I'm sure the situation did exist. 7 Q. And when you would respond, would you have 8 done that in writing occasionally? 9 A. In either writing or conversation. 10 Q. If you did it in writing, would you have 11 kept a record of that written correspondence? 12 A. I don't know. I might -- I don't imagine 13 that I would have. I don't know. 14 Q. When you would write a letter -- Strike 15 that. Let me ask this: If you wrote a letter while 16 you were an employee of Dow to someone outside the 17 company, could you put your name on that letter? 18 A. Yes. 19 Q. Was there ever a time when youweren't 20 authorized to sign your own letters, that someone 21 above you had to put their name on a letter that you 22 had written? 23 A. I don't recollect any. 24 Q. Was it your general practice tokeep copies 25 of letters that you had written in the Dow files? 246 1 MR. PIERCE: Objection to the form 2 of the question. 3 A. I had a correspondence file, yes; but it 4 was -- I'd usually clean my files once a year and 5 discarded the - that which was of no longer any 6 significance. 7 Q. When you would do your toxicity testing work 8 at the biochemical research laboratories on Dow 9 products, would you know, sir, if that was carried as 10 just a general overhead charge; or would that charge 11 be billed back to certain groups within Dow Chemical 12 Company? 13 MR. PIERCE: I'm going to object 14 to the form of the question. 15 A. It's two questions. 16 Q. All right, sir. If you could, give me the 17 answer to each one, then, please, sir. 18 A. Some were billed as an overhead to our 19 department. Others were agreed to -- The financing 20 was agreed to by product departments or subsidiaries 21 or what. 22 Q. Would this be the case back in as early as 23 the 1930's - about late 1930's - when you began in the 24 biochemical research laboratory? 25 A. I don't know. 247 1 Q. Can you tell me, based on your knowledge, 2 approximately when this practice began? 3 A. I don't recall. 4 Q. Could you initiate toxicity testing on a 5 material at the biochemical research laboratory 6 without one of the other groups within Dow requesting 7 that work be done? 8 A. Yes. At times. 9 Q. You didn't have to wait for some other 10 entity in Dow, then, to ask you to begin a project? 11 A. No. 12 MR. HOBSON: Dr. Rowe, I 13 appreciate your patience with me. 14 That's all the questions I have on this 15 subject right now, sir. Thank you very 16 much. 17 THE WITNESS: You're welcome. 18 MR. PIERCE: Anyone else have any 19 questions? 20 21 EXAMINATION BY MR. BLANKS: 22 Q. Dr. Rowe, I wanted to visit with you about 23 some of these same areas, hoping not to repeat too 24 much. 25 Where and how did you get your training to 248 1 do toxicology work? I understood that you graduated 2 with degrees in biochemistry. 3 A. That's right. 4 Q. And I'm just wondering what more you needed 5 to learn to do toxicology. 6 A. That's a long story. There weren't 7 anything - or no one existed that - except for, 8 perhaps, a very few who would call themselves 9 "toxicologists" when I began to do this sort of 10 thing. So, what was -- It was really we developed, I 11 think, in many instances the discipline of what is now 12 known as industrial toxicology. There were forensic 13 toxicologists but very, very few people who would 14 consider themselves as industrial toxicologists. So, 15 we grew with it, saw the need, tried to invent means 16 and methods to answer the pertinent questions. So, we 17 grew up doing it. 18 Q. Did you have anyjobs between your graduate 19 work and beginning with Dow? 20 A. No. 21 Q. Was it, then, Dr. Irish who was in a way 22 your initial teacher into the area of industrial 23 toxicology? 24 A. Dr. Irish and Dr. Adams. 25 Q. So, they were in some respect your mentors, 249 1 then; and I suppose - 2 A. Yes. 3 Q. -- in a way you all grew together in the 4 field. What were the pertinent questions in 1937 in 5 your field? 6 MR. PIERCE: I'm going to object 7 to the form of the question. 8 But try to answer it. 9 A. I don't know that I knew enough in 1937 to 10 identify them. 11 Q. Well, looking back with what you learned 12 over the following years as you matured in your field, 13 what you perceived it to have been, then. 14 A. Well, the problems that we were looking at 15 are identified by our publications and the problems 16 that The Dow Chemical Company had. We were interested 17 in the halogenated hydrocarbons; so, much of our 18 effort went into that. This was in those days quite 19 colloquial. 20 Q. Meaning -- Meaning what? 21 A. Meaning the problems that were surrounding 22 us - immediately surrounding us rather than the world 23 problems. 24 Q. I don't think that Mr. Hobson asked you, but 25 I'd appreciate it if you could give the jury just a 250 1 plain understandable definition of what toxicology is 2 and what it involves. 3 A. Our efforts at toxicology, perhaps, would 4 explain what I'm trying to say; but basically we would 5 expose animals to various compounds to try to learn 6 the amounts that were required under what conditions 7 to identify the areas of target organs, so to speak, 8 and apply the qualitative and quantitative aspects to 9 the - give it to the medical people, others involved 10 in - in the minimizing of occupational exposures. 11 Q. Okay. Well, that's - 12 A. And that was foundation that we looked to 13 apply. It involved various types of exposures that I 14 have described elsewhere there we've talked about. 15 Q. Thank you. And I think that is helpful. 16 In growing into your field, I would suspect that you 17 did a lot of reading along the way after you went to 18 work at Dow in areas that would be related to 19 toxicology in the work you were doing: wouldn't that 20 have been true? 21 A. No. I don't believe that I ever did a lot 22 of reading. 23 Q. Would you and your colleagues have at the 24 least been following the literature in the 25 occupational health field and industrial hygiene and 251 1 toxicology field? 2 MR. PIERCE: Objection to the form 3 of the question. 4 A. Yes. We tried to do that. 5 Q. And at that time in 1937, the volume of 6 publications and articles was certainly less than it 7 was in the last years that you worked, was it not? 8 A. Oh, yes. 9 Q. So, at that time, in fact, it was practical 10 for one to be pretty well abreast of the published 11 literature in his professional field. 12 MR. PIERCE: Objection to the form 13 of the question. 14 Q. Would you agree? 15 MR. PIERCE: It requires 16 speculation on the part of the witness 17 as to what affects someone else and 18 what someone else does. 19 A. We tried to do that. 20 Q. At any rate, it was easier to do then than, 21 say, in 1977, 40 years later, when there were more 22 journals, more articles, more presentations, and so 23 on: would that be fair to say? 24 A. I think so. 25 Q. Have you given any -- any kind of testimony 252 1 for Dow before at any time? 2 A. I beg your pardon. 3 Q. Have you given testimony for Dow at any 4 time? 5 A. Yes. 6 Q. Would that have been in lawsuits or in front 7 of regulatory bodies or Government groups or both? 8 MR. PIERCE: Objection to the form 9 of the question. 10 A. Yes. 11 Q. All of the above? 12 A. Yes. 13 Q. Okay. What -- What sort of litigation 14 topics have you given testimony on, sir? 15 A. Agricultural chemicals, chlorinated 16 hydrocarbons, 2,4,5-T, dioxin. I don't know any... 17 Q. Have you ever testified in any case 18 involving any sort of mineral dust exposure at a Dow 19 facility? 20 A. No. 21 Q. You've testified, Isuppose, before some 22 governmental groups, committees, agencies? 23 A. Yes. 24 Q. Would that beso? And what was the subject 25 matter of those appearances? 253 1 A. 2,4,5-T and - and dioxins were one of the 2 major ones. But I was a member of a number of 3 committees, and I can't remember all the things we 4 talked about. 5 Q. Did your committee membership carry on after 6 you left Dow, or did you withdraw from your 7 professional association? 8 A. I withdrew from that. 9 Q. I'm sorry. I talked over you. 10 A. I withdrew. 11 Q. Okay. So, while connected with committees 12 and testifying before Government groups, you were 13 still a Dow employee? 14 A. Yes. 15 Q. And were there testifying at Dow's behest, I 16 would suppose. Is that true? 17 MR. PIERCE: Objection to the form 18 of the question. 19 A. I don't know how to answer that because I 20 was a Dow employee, but I was given the privilege of 21 testifying and discussing problems with the committee 22 as an independent person. 23 Q. So, you weren't necessarily expressing Dow's 24 view when you'd testify? Well, you might have been? 25 A. That would have my background of most of my 254 1 opinions; but I was speaking, not for Dow, but for 2 myself. 3 Q. Did some of your testimony involve efforts 4 to oppose or resist changes in regulations about 5 occupational health - 6 MR. PIERCE: Objection to the form 7 of the question. 8 Q. -- and industrial hygiene standards? 9 MR. PIERCE: Continue the 10 objection. 11 A. Yes. 12 Q. And some of that testimony involved 13 resisting tightening up standards as to suspected 14 human carcinogens, did it not? 15 MR. PIERCE: Objection to form 16 of the question. 17 A. I don't really -- Can you be more specific? 18 Q. Well, unfortunately, since I don't know what 19 you testified on, I can't be specific about what 20 materials might have been involved. 21 A. Maybe it would help me if you could tell me 22 what you mean by "testifying." 23 Q. Well, I meant where you appeared in front of 24 OSHA regulatory hearings or some Congressional 25 committee or something of that sort. 255 1 A. I see. Okay. Yes. I have -- I have -- The 2 first one I was interested in mentioning was with the 3 T.L.V. committee. And I remember distinctly of 4 urging that committee to lower the level on carbon 5 tetrachloride because I felt that the standards were 6 excessive. 7 Q. In what decade do you recollect doing that 8 service in? 9 A. Probably the Forties. 10 Q. And, indeed, it was probably your opinion 11 that there were other T.L.V. standards that were 12 excessive, as well, during those years; isn't that 13 true? 14 MR. PIERCE: Objection to the 15 form. 16 A. I -- I don't believe I ever testified in 17 that sense. I provided data for the committee to use 18 in making evaluations. 19 Q. In fact, though, many of the T.L.V.'s that 20 the American Congress of Governmental Industrial 21 Hygienists had originally set out were not supported 22 by the quantity or quality of data such as you were 23 providing on particular substances, were they? 24 MR. PIERCE: Object to the form 25 of the question. It's argumentative 256 1 and speculative. 2 A. I think that's correct. 3 Q. In fact, they originated just as a 4 benchmark, something that was in the nature of being 5 better than nothing to provide some guidelines to 6 people in industry to protect workers from exposures. 7 MR. PIERCE: Objection to the form 8 of the question. 9 Is there going to be a question? 10 MR. BLANKS: Well, if the 11 objection does not interrupt it. 12 (By Mr. Blanks) 13 Q. Isn't that so, sir? 14 A. I think we always have looked at the 15 A.C.G.I.H. threshold limit values as the best estimate 16 of a basis of the information that was available at 17 that particular time. 18 Q. You mean at the time they were initially 19 promulgated? 20 A. Yes. 21 Q. And over the course of the years that 22 followed, the - additional information came to light 23 with respect to different substances which did not 24 immediately show up in terms of changes of the 25 T.L.V.'s; isn't that right? 257 1 MR. PIERCE: Objection to the form 2 of the question; leading. 3 It's just really a speech; but 4 deal with it, sir. 5 A. As new information becomes available, 6 there's always some lag time before it is accepted. 7 In that sense, surely, we're always going to have 8 change. 9 Q. And with respect, for instance, to the 10 mineral dust, the lag time was on the order of many 11 years and not just a few; isn't that right? Those 12 topics -- Those materials weren't revisited by the 13 committee until many years - some decades after the 14 standards had originally been set. Isn't that so? 15 MR. PIERCE: Objection to form of 16 the many questions at the same time, 17 all of which were compound. 18 MR. ALMQUIST: And I'll join in 19 that objection and also raise the 20 objection it's an argumentative 21 question. 22 A. I do not know. I was - never believed that 23 I was an expert or really knowledgeable in the area of 24 particulate toxicology. 25 Q. So, that was something that you never really 258 1 concerned yourself with at Dow? 2 A. I -- I didn't. 3 Q. Isn't it the case that Dow was one of the 4 first few companies to actually set up a toxicology 5 department and laboratory? 6 A. One of the first. 7 Q. One of the first of maybe half a dozen in 8 the United States; is that about right? 9 A. Perhaps. 10 Q. Well, you've mentioned Carbide's efforts 11 through the Mellon Institute and, I think, Du Pont at 12 the Haskell Laboratory, and maybe a couple others; but 13 Dow was certainly one of the leaders in that area, 14 correct? 15 A. We thought so. 16 Q. And to whom do you attribute this - the 17 foresight that led to the creation of an industrial 18 toxicology department and laboratory? 19 A. To Willard H. Dow. 20 Q. And was he a doctor, a Ph.D., a scientist? 21 A. He received honorary doctorate degree. 22 Q. He wasn't a physician? 23 A. No. 24 Q. Was it a matter of scientific curiosity that 25 led him to do this, or was it more a concern for the 259 1 health and safety of the people that worked - 2 MR. PIERCE: Objection. 3 Q. -- for his company? 4 MR. PIERCE: Objection to form of 5 the question; it's compound. Objection 6 that you're asking Dr. Rowe to 7 speculate on the thoughts of Willard 8 Dow. 9 But go ahead. 10 A. Willard Dow, president and the founder, was 11 a very people-oriented person. And we had an accident 12 in the plant where a man was killed from a splash of 13 phenol. No one knew at that particular time the 14 toxicity of phenol when applied to the skin. As a 15 result of that, my understanding: that Dr. Dow wanted 16 that never to happen again and he tried to and did 17 create the biochemical research laboratory to study 18 materials that Dow people were handling so that such a 19 thing would not happen again to the best of his 20 ability. 21 Q. And it was around that time that he hired 22 Dr. Irish to set up the laboratory and get the program 23 going, correct? 24 A. That's right. 25 Q. Did I understand that the goal then was to 260 1 know at Dow about the hazards, the toxicity of all the 2 materials that were being handled in the plants in 3 order to protect the safety of the people in the 4 plants? 5 MR. PIERCE: Objection to form of 6 the question. 7 A. As far as that was humanely possible with 8 the resources available. 9 Q. And as I think you've testified, the 10 resources were made available and in steadily 11 increasing amounts over the decades that you were with 12 the company. 13 A. That's right. 14 Q. Would that be true? 15 A. Yes. 16 Q. Starting with one man in 1933 or '34 and 17 growing up to over a hundred late in your career, 18 correct? 19 MR. PIERCE: Mr. Blanks, could you 20 ask a single question, allow the 21 witness to answer it instead of 22 continually piling question on question 23 as he tries to answer the first one. 24 Please attempt that. 25 Go ahead, Dr. Rowe. 261 1 A. Would you please start over your - that 2 question. 3 Q. Dow did, indeed, apply resources to the area 4 of occupational health, beginning with the hiring of 5 one - one scientist in 1933 or '34 in the person of 6 Dr. Irish and continuing over the decades you were 7 with the company to build a staff that approached or 8 exceeded even a hundred people, correct? 9 A. Yes. 10 Q. Would you say, sir, that Dow had a 11 state-of-the-art biochemical research and toxicology 12 program in 1937 when you joined the company? 13 MR. ALMQUIST: I'm going to 14 object -15 MR. PIERCE: Objection to form of 16 the question. 17 MR. ALMQUIST: I'm also going to 18 object to the form of the question 19 because of the use of the term "state 20 of the art" which has a legal 21 connotation in the sense it calls for a 22 legal conclusion on the part of this 23 witness. 24 A. That was not possible with our staff. 25 Q. It was not possible with your staff in 1937 262 1 to have a - a program that - that was what we call 2 "state-of-the-art" for that time? 3 MR. PIERCE: Continue the 4 objection. 5 MR. ALMQUIST: And also I want 6 to - if possible, Mr. Blanks to have 7 your agreement to a running objection 8 to state-of-the-art questions again 9 because - 10 MR. BLANKS: That's fine because I 11 don't understand that it is a legal 12 term unless you've just invented it. 13 It's certainly in common usage, and I'm 14 using it in that respect. And I think 15 if Dr. Rowe doesn't understand it that 16 way, he'll tell me; but you have a 17 running objection. 18 (By Mr. Blanks) 19 Q. I'm sorry, sir. I'm not meaning to belittle 20 your program or to criticize it. I'm trying to get an 21 understanding of it, and I mean that sincerely. But 22 in 1937 when you joined Dow, was the Dow toxicology 23 program at the biochemical research laboratory 24 comparable to the other good programs - the few good 25 programs - that existed in the Country then? 263 1 A. I don't know. 2 Q. Did you learn over the next three or four 3 years, say up before World War II, that it was on a 4 par with those of some of your competitors? 5 A. Yes. In -- In areas in which we were 6 primarily concerned, in organic chemicals, I think 7 that was true. 8 Q. Now, your charter from Dr. Dow had been to 9 know the hazards in the plant, as I understood your 10 testimony, so that you would not have repeat 11 repeated deaths and injuries to workers there from 12 exposures in the plant, - 13 MR. PIERCE: Objection to the - 14 Q. -- correct? 15 MR. PIERCE: -- characterization 16 of the witness' prior statements. 17 A. To the limit of our capabilities. 18 Q. Yes, sir. And certainly you weren't 19 expected to go out and reinvent the wheel and do tox. 20 studies on materials about which there was already 21 reported information in the literature, were you? I 22 mean, you could rely on what others had already 23 published about some materials and concentrate your 24 efforts on those that - about which little was known. 25 True? 264 1 MR. PIERCE: Objection to the form 2 again. Please ask a single question, 3 allow the witness to answer it. Nobody 4 can answer it if you ask a question 5 The witness tries to begin to answer 6 it, and you continue with a second 7 question and put them together. 8 Please. 9 Q. Dr. Dow didn't tell you to go out and 10 reinvent the wheel and do toxicology work on every 11 material used in a Dow plant, did he? 12 A. No. 13 Q. You were, though, concerned to investigate 14 materials about which there was not existing 15 toxicological data in the literature, weren't you? 16 A. I'm -- I'm sorry. I don't think I heard all 17 of what you said. 18 Q. All right. The scope of your interest in 19 the tox. department, even in 1937, was first limited 20 to materials that were used in the Dow facilities. 21 A. To very few of them. 22 Q. But that defined the set or the universe of 23 materials to even consider studying, right, that were 24 used in your plants or came out the end of it as a 25 product? 1 A. Yes. 265 2 Q. You focused your efforts, I think, not on 3 materials about which information already existed, but 4 rather on those about which the toxicological 5 information was either limited or nonexistent; is that 6 true? 7 A. That's right. 8 Q. Such as the phenol, correct? 9 A. Yes. 10 Q. Okay. And relied, then, on the existing 11 literature in the medical journals and toxicology 12 journals and so on for those other materials that you 13 could look to the work of others on? 14 MR. PIERCE: Objection to the form 15 of the question. It's ambiguous and 16 it's compound. 17 A. Yes. 18 Q. Okay.Because you hadlimitedresources and 19 you had to use them in the most efficient way, 20 correct? 21 A. Right. 22 Q. And thecontributions that you and your 23 colleagues made in the field of toxicology are well 24 recorded in the articles that you and the other 25 gentlemen you worked with published over the years. 266 1 True? 2 A. Yes. 3 Q. And for the most part they provided new 4 insights and new data about the materials that you 5 reported on, right? You were breaking new ground? 6 MR. PIERCE: Please just - just 7 keep it to one question. Don't keep 8 adding that second question to each of 9 your questions. 10 A. We were plowing new ground in some areas. 11 We were extending knowledge in others. 12 Q. Okay. Now, as to those materials that were 13 used in the Dow plants which you did not study, where 14 did you look to get the toxicological or hazard 15 information about - about those materials? 16 A. The literature - available literature - at 17 the time or by correspondence or inquisition - verbal 18 inquisition - with people who were supposed to know. 19 Q. Such as perhaps the people that sold some of 20 the raw materials to Dow? 21 A. I'd presume so. I wasn't involved in that 22 particular part of the game at that stage. 23 Q. Now, how did the biochemical research 24 laboratory share the information it gleaned from the 25 literature with the Dow employees who would be 267 1 interested in knowing about particular hazards? 2 A. What we learned we tried to use in our 3 normal distributions which were, of course, quite 4 limited in those days. 5 Q. But the biochemical research laboratory 6 staff did, I suppose, make it a point to get the 7 material hazard information to the appropriate Dow 8 employees that would benefit from knowing it, correct? 9 A. I don't believe it was that extensive at 10 that time. Plant superintendents and people who were 11 in charge of operations were the channels through 12 which we worked. 13 Q. So, you'd communicate with the plant 14 superintendents, and then they would just share the 15 information with the people working in their plants. 16 Right? 17 A. I don't know what happened after that 18 after our communications or discussions. 19 Q. Did you ever have any reason to think that 20 the plant superintendents weren't disseminating the 21 product and material hazard information that you 22 provided? 23 A. I don't know -- I don't -- I don't know. 24 Q. You recall no instances where you learned 25 that something that your department had reported on 268 1 had not reached the field? 2 A. I don't remember ever particularly looking 3 at it. 4 Q. I'm sorry. 5 A. I say I don't remember particularly looking 6 for it. 7 Q. All right, sir. Have you ever taught any 8 courses in - at Dow or in colleges or universities? 9 MR. PIERCE: Objection to form of 10 the question. 11 Q. Have you ever taught? 12 A. Well, I've done - given -- I've given 13 lectures to lots of groups at our - in our 14 organization. I have -- I don't believe I could say 15 that I ever taught a course. 16 Q. So, the teaching you did was in Dow and it 17 was limited to presentations on a particular topic? 18 A. As far as I can recall. 19 Q. Okay. Did you ever belong to the American 20 Public Health Association? 21 A. Beg your pardon. 22 Q. Did you ever belong to the American Public 23 Health Association? 24 A. No, I did not. 25 Q. Ever attend any of their meetings, sir? 269 1 A. Don't recollect that I did. 2 Q. Is Fred Meyers still living? 3 A. I don't know. 4 MR. PIERCE: Objection to form. 5 A. Are you speaking of the Fred Meyer who was 6 in our aboratory? 7 Q. Yes, sir. 8 A. I don't know. 9 Q. Do you have a recollection of when you met 10 Jim Hammond - James Hammond? 11 A. I beg your pardon. 12 Q. Do you recall when you met James Hammond? 13 A. No. 14 Q. Did you know him before he went to work with 15 the Exxon company or its - what its predecessor was 16 then? 17 A. I don't know. 18 Q. Did you actually have a librarian at the 19 library at the Dow plant in Midland where you worked? 20 Was there a technical librarian there? 21 A. I don't know. 22 Q. You don't recall? 23 A. I don't know what her qualifications were. 24 Q. There was a librarian at thecompany 25 library? 270 1 A. Oh, yes. 2 Q. Company library? 3 A. Yes. 4 Q. Did you have to go to university libraries 5 to find the - all of the literature that you might 6 want to review on a particular material, or was it 7 present in the Dow library? 8 MR. PIERCE: Objection to form of 9 the question. 10 A. I recall one instance in which I went to 11 another library to find something. That's all I can 12 remember about it. I don't know what - what it was 13 and I can't remember where it was. In Chicago, I 14 believe. But I don't remember the name of the 15 library. 16 Q. But otherwise you were able to find what you 17 needed in the Dow company library? 18 A. I can't answer that. 19 Q. What other toxicology laboratories has Dow 20 had over the years that you were with the company 21 besides the one in Midland? 22 A. There was a laboratory established at 23 Freeport, Texas. 24 Q. When would that have been, approximately? 25 A. I don't remember when it was started. 271 1 Q. Do you recall who staffed it originally? 2 A. I'm not sure. 3 Q. What kind of work did they do there? 4 A. They did primarily what we referred to 5 before as Class I type work. 6 Q. The preliminary investigations? 7 A. Yes. 8 Q. Was it specialized as to any particular type 9 of products or materials? 10 A. Not to my knowledge. 11 Q. Was it -- Was the Freeport lab doing the 12 same kind of work that you were doing in Michigan? 13 Let me do that again. Was the Freeport lab 14 looking at the same materials as you were 15 investigating in Michigan? 16 A. No. No necessarily. 17 Q. Were they to some extent duplicating your 18 work, or were they set up just to deal with a 19 specialized separate line of materials and products? 20 MR. PIERCE: Objection to the form 21 of the question. 22 A. The problem of transporting research 23 quantities of materials back and forth became a 24 logistic problem; so, we established a laboratory to 25 avoid that. They were trying to use the same 272 1 methodology that we used. 2 Q. So, they were concerned with the materials 3 that were being used or produced in Freeport, correct? 4 A. Yes. 5 Q. Okay. Did they have the capacity in 6 Freeport to do any kind of dust studies or dust 7 inhalation studies? 8 A. Not to my knowledge. 9 Q. Do you recall approximately how many people 10 staffed that facility at Freeport? Was it a very 11 small lab, two or three; or more than that? 12 A. I don't know what the range was. 13 Q. Did you ever visit the laboratory there? 14 A. Yes. 15 Q. Several times? 16 A. Yes. 17 Q. What decades would you have gone there in? 18 A. Again I can't be specific, but it must have 19 been in the Sixties. 20 Q. Now, Doctor, would you have been down there 21 to consult with them on some particular problems; or 22 would this just have been a courtesy call? 23 MR. PIERCE: Objection to the form 24 of the question. 25 A. We tried to get together with the group down 273 1 there maybe once a year or oftener if there was 2 something specific, but I don't recall anything other 3 than normal-type conversation, I guess, about what was 4 going on at the moment. And it wasn't on an 5 inspection-type basis. 6 Q. Did the Freeport laboratory come under the 7 biochemical research laboratory in Midland? Was it 8 subordinate to your laboratory? 9 A. No. 10 Q. Just more parallel to it? 11 A. Yes. 12 Q. So, to whom would the chief of the Freeport 13 laboratory have reported, to his plant superintendent? 14 MR. PIERCE: Objection to form of 15 the question. 16 A. I don't remember. 17 Q. How frequently would you Dow scientists meet 18 to exchange ideas and information? And I don't mean 19 in your own office, but like companywide. 20 A. I don't believe I can answer that unless you 21 become more specific. 22 Q. Well, did you have a custom or a practice of 23 getting together periodically with the other Dow 24 people that were working in your field and related 25 fields? 274 1 A. Yes. 2 Q. And how frequently would that happen? 3 A. I don't know that it was on any planned 4 basis. 5 Q. On an unplanned basis how frequently did it 6 happen over the years you were with the company? 7 A. Well, it didn't happen at all in the early 8 times because there wasn't anybody except our local 9 people to go to it. We did meet with the Texas people 10 and medical directors, safety department people, 11 industrial hygienists, toxicologists. Met maybe once 12 a year, usually under the auspices of the medical 13 departments. 14 Q. How old is the Freeport plant? 15 A. That was started in 1940. I don't know what 16 stage of construction it was. I wasn't there. 17 Q. Would you know when they got a medical 18 doctor at that plant like you had at Midland? 19 A. Yes. 20 Q. Could you tell us when? 21 A. Excuse me. Rephrase your question. Maybe I 22 answered it incorrectly. 23 Q. Okay. Do you know if and when the Freeport 24 plant had a full-time doctor hired? 25 A. No, I do not know. 275 1 Q. Don't know if they ever did? 2 A. Yes. 3 Q. Just don't know when? 4 A. Yes. 5 Q. Okay. Do you know who the first one was? 6 A. My recollection was Dr. Kilian. 7 Q. Were there any other toxicology laboratories 8 in the Dow company besides Midland and Freeport? 9 A. You'll have to give me a time frame. 10 Q. Well, any time you know of because I don't 11 know where your other plants were. 12 A. There was a toxicology laboratory at the 13 at the drug laboratory in Indianapolis. 14 Q. Any others, sir? 15 A. There was a drug laboratory in Livorno, I 16 believe, in Italy, LePetite, which was at one time a 17 subsidiary of Dow. 18 Q. Was Lapatee the name of the subsidiary or 19 the town? You lost me there. 20 A. That was a drug company, an Italian drug 21 company. 22 Q. And what was the subsidiary in Indiana that 23 had the drug lab? 24 A. That was the Dow Pharmaceutical. 25 Q. Are those the only ones you recall, Doctor? 276 1 A. That's the only ones I recall. 2 Q. Did your department ever report to the 3 medical department, or were you separate? 4 A. No. 5 Q. You never reported to the medical 6 department? 7 A. That's right. 8 Q. What relationship did you have with the 9 safety department? 10 A. A working relationship. 11 Q. They would come to you with problems 12 occasionally, and you'd provide information and 13 advice? 14 A. We com - communicated, I think, routinely. 15 Q. Did the safety department handle industrial 16 hygiene tasks before you hired industrial hygienists 17 at Dow? 18 A. Not to my knowledge. 19 Q. Is it so that there was no industrial 20 hygiene work being done, then, in 1937 when you joined 21 Dow? 22 A. Not to my knowledge. 23 Q. And you and Dr. Adams were the initial 24 practitioners in the field for Dow? 25 A. Dr. Adams, not me. 277 1 Q. And you assisted him in some of that work, 2 didn't you, sir? 3 A. Later on. 4 Q. Including designing the air sampling device 5 and taking samples? 6 A. Yes. 7 Q. And then but it really wasn't until 8 Mr. Hoyle was hired that you had industrial 9 hygienists? 10 A. I don't think any of us could qualify as 11 that. 12 Q. Well, did Mr. Hoyle qualify as that when he 13 was hired; or was that something he - he sort of 14 learned his way into? 15 MR. PIERCE: Objection to the form 16 of the question. 17 A. He learned his way in like the rest of us. 18 Q. What specifically was being done at Dow in 19 1937 when you joined the company to protect people in 20 the Dow plants from toxic mineral dust, -21 MR. PIERCE: Objection. 22 Q. -- if anything? 23 MR. PIERCE: Objection to form of 24 the question. It's overly broad. It's 25 ambiguous. 1 A. I don't know. 278 2 Q. When did you first become aware that 3 anything was being done at Dow to protect people 4 working in the plants from exposures to toxic mineral 5 dust? 6 MR. PIERCE: Objection to the 7 form. 8 A. I don't remember. 9 Q. Is it your recollection that this is not a 10 matter that Dr. Adams worked on while you were working 11 with him, assisting him in industrial hygiene-type 12 work? 13 MR. PIERCE: Objection to the 14 form - 15 A. I don't know. 16 MR. PIERCE: -- of the question. 17 It assumes facts not in evidence. 18 Q. I'm sorry. 19 A. I don't know. 20 Q. Being as there were only, like, three or 21 four of you there in the biochemical research lab in 22 the beginning, isn't it likely that you would have 23 known at least the general areas Dr. Adams was working 24 on in 1937- '38? 25 A. I'd doubt it necessarily, that stage of the 279 1 game, because I was preoccupied with other things. 2 Q. And those are the things that show up in 3 your early articles? 4 A. Yes. 5 Q. Did you ever or do you speak any foreign 6 languages, Dr. Rowe? 7 A. No. 8 Q. Did you ever learn to read any foreign 9 languages? 10 A. Elementary, I guess. 11 Q. Which would that be? 12 A. French. 13 Q. So, in terms of following the literature 14 that was published in foreign journals, sir, you would 15 have relied on translations or Digest abstracts that 16 had been - from translations without reading it, 17 yourself? 18 MR. PIERCE: Objection; to the 19 form. 20 A. Yes. And even any French articles. 21 Q. Okay. Dr. Rowe, do you believe that Dow 22 needed to be told by the manufacturers of insulation 23 products about the dangers of asbestos in 1937? 24 MR. PIERCE: Objection to form of 25 the question. 280 1 A. I would ask you if you would repeat that. 2 Q. Is it your belief that Dow required to be 3 informed - to be told by the makers of asbestos 4 insulation about the dangers of asbestos, say, in 1937 5 when you joined the company? 6 A. I don't know. 7 Q. Would you say that Dow needed to be told by 8 the manufacturers of asbestos products about the 9 health hazards of asbestos ten years later in 1947? 10 MR. PIERCE: Objection again. 11 A. Well, I think that anybody that was 12 getting a product would like to know what - what's 13 known about it at the time, so -- I don't know. 14 Q. So, that would have been beneficial to Dow 15 to have been informed by the manufacturers about what 16 they did know about asbestos health hazards? 17 MR. PIERCE: I'm going to object 18 to the form and continue the objection 19 for this type of question. 20 A. The question relates to something that one 21 would have to answer philosophically. You also would 22 have to have someone that understood the other side of 23 it. Whether or not that was in existence, I don't 24 know. 25 Q. You mean whether the information was in 281 1 existence in 1937 or 1947? 2 A. No. On the receiving end. 3 Q. I see. 4 MR. ALMQUIST: We've been going 5 about an hour - a little bit over an 6 hour now. You want to take a short 7 break? 8 Q. You want to stop now, sir? 9 MR. PIERCE: Yeah. We'll take a 10 short break now. 11 MR. BLANKS: I was asking 12 Dr. Rowe. 13 THE WITNESS: I would 14 like to relax for a few minutes. 15 MR. BLANKS: All right, sir. 16 (AT THIS TIME A BRIEF RECESS WAS 17 TAKEN, AND THE PROCEEDINGS THEREAFTER 18 RESUMED AS FOLLOWS:) 19 (By Mr. Blanks) 20 Q. Dr. Rowe, besides the folks working at the 21 biochemical research laboratory, was there anyone else 22 who had the responsibility at Du Pont - at Dow -- 23 MR. BLANKS: All right. Go ahead 24 and laugh. 25 Q. Dr. Rowe, I'll start over, sir. He's trying 282 1 to mess me up here (indicating Mr. Pierce). 2 MR. PIERCE: You do very well by 3 yourself. 4 (By Mr. Hobson) 5 Q. Were there any persons at Dow besides you 6 gentlemen in the biochemical research laboratory who 7 were responsible to look for health hazards in Dow 8 plants before the War? 9 A. Yes. 10 Q. What positions would those people have been 11 in? 12 A. Medical people, nurses, safety people. 13 Q. And the safety people looked to health 14 hazards as well as what would be the more ordinary 15 mechanical safety hazards at Dow? 16 A. Yes. 17 Q. This was so when you joined the company in 18 1937? 19 A. I don't know. 20 Q. Do you know when it became so? 21 A. No, because I can't speak for the safety 22 people. 23 Q. You remember them being there early on in 24 your career at Dow, though, and that you did see them 25 routinely or frequently? 283 1 MR. PIERCE: Objection to the form 2 of the question. 3 Q. I think you told us that earlier, didn't 4 you? 5 A. Yes. 6 Q. Who was responsible at Dow for following the 7 medical and scientific literature that pertained to 8 occupational health matters? 9 A. I don't know. 10 Q. Now, you've told us that you and the other 11 doctors with whom you worked in the early years did, 12 indeed, try to follow the literature; but I'm 13 wondering if there was any person who had that as 14 their specific responsibility. 15 A. Not to my knowledge. 16 Q. So, that obligation fell upon the shoulders 17 of each professional, then, to try and stay abreast in 18 his field? 19 MR. PIERCE: Objection to the 20 form; leading, really testimony. 21 A. Yes. 22 Q. Was the term "product stewardship" one used 23 at Dow? 24 A. I beg your pardon. 25 Q. Was the term "product stewardship" one that 284 1 was used at Dow? 2 A. Yes. 3 Q. And could you explain tothe jury what that 4 concept means? 5 A. It was a programdesigned to acquaint people 6 within Dow in the production plants relative to the 7 consequences or hazards associated with the various 8 chemical products and their undesirable effects either 9 to people within the plant or without the plant and 10 to - I guess one could say nature, herself - streams 11 fish, desirable plants, and so forth. 12 Q. And how long has Dow been following this 13 philosophy? 14 A. Well, it was not anything organized until 15 I suspect it was in the neighborhood of the Seventies. 16 Q. But Dow had, in fact, been doing many of 17 these things before the Seventies, had it not? 18 A. It had been doing things, yes; but it wasn't 19 at all formalized. 20 Q. So, it was put into a policy then in the 21 Seventies, - 22 A. Yes. 23 Q. -- what had been done informally before 24 then? 25 MR. PIERCE: Objection to the 285 1 form. 2 Q. "Yes"? 3 A. More or less. 4 Q. Do you recall that Dow or its employees or 5 the people working in its plants everhad the benefit 6 of this sort of product stewardship from the 7 manufacturers of asbestos materials used in Dow 8 facilities? 9 A. I don't -- I don't know anything about it. 10 Q. You don't know anything about any asbestos 11 health information that may have been provided to Dow 12 by the manufacturers of those products? 13 MR. PIERCE: Asked and answered. 14 Q. Is that what you meant, sir? 15 A. I don't know, no. 16 Q. Did you, yourself, ever inquire of any of 17 the asbestos insulation manufacturers about the 18 hazards of their products? 19 A. I don't recall that I did. 20 Q. Is that something that would have been more 21 in the realm of Mr. Hoyle's responsibilities or one 22 that would have fell in your area? 23 MR. PIERCE: Objection to the form 24 of the question. 25 A. I wouldn't want to infer that it was 286 1 anybody's direct responsibility. I'd have to say that 2 I was not particularly concerned in those days about 3 asbestos. I have relied, more or less, on the 4 observations that if things were under control as 5 recommended by the various agencies that -- And that 6 was Mr. Hoyle's job to see that that was the case. 7 And I did not have any direct operation or function 8 there. 9 Q. Would that also have been true with respect 10 to silica dust hazards that might occasionally be 11 created in your plants? 12 A. Yes. 13 MR. PIERCE: Objection to the form 14 of the question and 15 Q. Sir? 16 MR. PIERCE: Assumes facts not 17 evidence. 18 A. Yes. 19 Q. So, you have no knowledge about what 20 particular brands of asbestos insulation might have 21 been used in Dow facilities? 22 A. I do not. 23 Q. Did you ever see in the Dow plant the 24 handling of asbestos insulation material by Dow 25 employees or other persons working there? 287 1 A. I don't recall any. 2 Q. In fact, most of your work was, in fact, 3 done in the laboratory, wasn't it? 4 A. That's right. 5 Q. Very little fieldwork involved? 6 A. Very little. 7 Q. So, you're not really in a position to tell 8 us much at all about the methods of handling asbestos 9 insulation or other materials, are you? 10 MR. PIERCE: Objection to the form 11 of the question. It's argumentative 12 and also asked and answered as to what 13 he could tell you before. 14 Q. Was there a time, Dr. Rowe, when you were 15 responsible for running the industrial hygiene program 16 at Dow? 17 A. Administratively, yes. 18 Q. And would that have been when you were the 19 director of toxicology and industrial hygiene? 20 A. Yes. 21 Q. That was, according to your C.V., 1970 to 22 1973. Is that - 23 A. Yes. 24 Q. That's your recollection? Now, after you 25 became the research scientist-director of 288 1 toxicological affairs, health and environmental 2 research, was the industrial hygiene work at Dow still 3 under your supervision or responsibility 4 administratively? 5 A. Administratively, yes. 6 Q. Was 1970, then, the first year that you were 7 administratively responsible for industrial hygiene? 8 A. No. I can't recall. 9 Q. Would you have had that responsibility as 10 while serving as the assistant director of the 11 biochemical research laboratory? 12 A. Yes. 13 Q. Would you have had responsibility 14 administratively for industrial hygiene while serving 15 as the director of toxicology research section? 16 A. No. 17 Q. And it was Mr. Hoyle, of whom we've spoken 18 several times, who was then the man that reported to 19 you on industrial hygiene during those years that you 20 had administrative responsibility for it? 21 A. Yes. 22 Q. Would you agree, sir, that it was desirable 23 and, indeed, the right thing for Dow to know how many 24 cases of occupational disease were occurring in its 25 work force in the plants? 289 1 MR. PIERCE: Objection to form of 2 the question. 3 A. Well, I don't believe that any time you can 4 say that it's undesirable to have information that's 5 available. 6 Q. And would it not also have been desirable to 7 know how many cases of suspected occupational cancer 8 were taking place among people working in your plants? 9 MR. PIERCE: Objection to the form 10 of the question. 11 A. It's always well to have information, but 12 there is more to that than just the fact that... 13 Q. Yes, sir. What more? 14 A. The quantitative aspects are usually missing 15 in that sort of thing. 16 Q. You mean quantitative in terms of the 17 exposure levels - 18 A. Yes. 19 Q. -- that the men may have had? 20 A. That's what I'm referring to. 21 Q. And I think we talked about that yesterday. 22 Not meaning to repeat unduly; but you would obtain 23 this quantitative information through doing 24 monitoring, correct, sir? 25 MR. PIERCE: Objection to the 290 1 form. 2 A. I'm going to ask you to repeat that, please. 3 Q. The quantitative information that you said 4 was part of the equation, you obtained that by doing 5 monitoring whether it's air monitoring or 6 environmental monitoring? 7 A. Yes. 8 Q. Or even biological monitoring? 9 A. In some instances, yes. 10 Q. When did Dow begin to collect information on 11 the incidence of occupational diseases in the work 12 workers in Dow plants? 13 A. I don't know. 14 Q. When did it begin to collect information on 15 the occupational cancers among people who worked in 16 Dow plants? 17 MR. PIERCE: Objection to form. 18 A. That would have probably have been in the 19 late Fifties. 20 Q. And did not some of Dow's studies in this 21 area lead to discovering a connection between arsenic 22 and cancer? Do you recall that, sir? 23 A. No, I don't. 24 Q. Do you recall a Gerald M. Ott, O-t-t? 25 A. Yes. 291 1 Q. And an H. L. Gordon? 2 A. Yes. 3 Q. A B. B. Holder? 4 A. Yes. 5 Q. What were these men? 6 A. Dr. Holder and Dr. Gordon were physicians, 7 and Ott was a statistician. 8 Q. And they're the men that instituted the 9 program of computerizing the data from death 10 certificates, were they not? 11 A. That type of work would have been conducted 12 mostly through the medical department, yes. 13 Q. And it was certainly the case that the 14 medical department shared the results of these type of 15 studies with you in your department, correct? 16 A. I'm sure they would - did. 17 Q. Was that the kind of information that would 18 be helpful to you in the biomedical research 19 laboratory? 20 MR. ALMQUIST: I think perhaps the 21 question -- You just said "biomedical" 22 or "biochemical"? 23 Q. I'm sorry, sir. 24 A. We didn't have a biomedical laboratory as 25 such. 292 1 Q. My apologies. But information about the 2 incidence of disease and causes of death in your work 3 force would be valuable to you in the work you were 4 doing in the biochemical research lab? 5 A. Sure. 6 Q. When did Dow begin to use industrial hygiene 7 standards or maximum allowable concentrations as for 8 mineral dust? 9 MR. PIERCE: Objection to form. 10 A. I don't know. 11 Q. Do you recall when Dow began to use T.L.V.'s 12 for mineral dusts like asbestos and silica? 13 A. I don't remember. 14 Q. Would this have been done, sir, during the 15 time that you were administratively responsible for 16 industrial hygiene? 17 MR. PIERCE: Objection to form; 18 asked and answered. 19 A. I think it would have been done any time, 20 but I just don't recall all of Mr. Hoyle's duties in 21 this respect. So, I can't tell you when. 22 Q. All right, sir. Well, not -- I accept you 23 can't tell me when, but can you tell me whether you 24 remember that any one of these three - either I. H. 25 industrial hygiene standards or maximum allowable 293 1 concentrations or threshold limit values - were used 2 with respect to mineral dust during the years you 3 had administrative responsibility for industrial 4 hygiene? 5 A. I can't tell you. 6 Q. Do you recall, sir, how any of these 7 standards, if they were used, were implemented or 8 enforced at Dow? 9 MR. PIERCE: Objection to form 10 of the question. 11 A. I don't know. 12 Q. Can you tell us, sir, what was the maximum 13 allowable concentration for asbestos or silica dust 14 during the years that you were administratively 15 responsible for industrial hygiene? 16 A. No. 17 Q. How many plants and facilities did your 18 responsibilities involve when you were in charge of 19 industrial hygiene? 20 MR. PIERCE: Administratively? Is 21 that what you mean, Mr. Blanks? 22 MR. BLANKS: Well, that's the only 23 way he's described it. I'm not sure 24 what it means but... 25 A. Just the Midland location. 294 1 (By Mr. Blanks) 2 Q. So, it was the case, then, at least during 3 the years you were administratively in charge of 4 industrial hygiene that Freeport had its own 5 industrial hygiene program and that wasn't part of 6 your responsibility? 7 A. That's right. 8 Q. Would that Freeport program whenever it 9 existed have been under the toxicology laboratory 10 there? 11 A. My recollection is that it was under the 12 medical department in Texas. 13 Q. Can you tell us, sir, when during your time 14 of being administratively in charge of industrial 15 hygiene at Dow that air monitoring for mineral dust 16 was implemented? 17 A. I cannot. 18 Q. Was it done at all during the time that you 19 were administratively in charge of industrial hygiene? 20 A. I didn't participate in any. I don't know. 21 Q. Would not the people who reported to you 22 have been responsible for that? 23 MR. PIERCE: Objection to form. 24 A. Yes. 25 Q. And isn't this a matter that would have been 295 1 of some interest to you as the man administratively in 2 charge of that program? 3 A. My involvement in the industrial hygiene 4 area there was administrative, and I relied on 5 Mr. Hoyle to run that operation. 6 Q. So, in fact, you don't really know what 7 year, if ever, air monitoring for asbestos dust or 8 silica dust was done in the Dow facility, do you? 9 A. No, I do not. 10 Q. Do you know when, if ever, any engineering 11 controls for dealing with these toxic mineral dusts 12 were put in place at Dow? 13 A. I do not. 14 Q. Would that have been the responsibility of 15 the industrial hygiene department that you were 16 administratively in charge of? 17 A. I am sure they would have been involved. 18 Perhaps the engineering department, as well. 19 Q. Who would have been involved in setting up a 20 biological or medical monitoring program for people 21 potentially exposed to toxic mineral dusts such as 22 asbestos or silica -23 MR. PIERCE: Objection. 24 Q. -- in Dow facilities? 25 MR. PIERCE: Objection to form of 296 1 the question. 2 A. Medical department. 3 Q. If we assume that Dow did not begin air 4 sampling for asbestos dust until some time in the 5 1960's, can you explain to us, sir, why Dow waited so 6 long to begin doing that? 7 MR. PIERCE: That's a completely 8 improper question. I object to your 9 assumption, and certainly I object to 10 the question that goes from an 11 assumption that has no basis. 12 MR. BLANKS: Well, excuse me, 13 sir. Since you don't know the prior 14 testimony in this case, I don't suppose 15 you're in a position to - to fairly 16 make that objection but - 17 MR. PIERCE: But I'm making it 18 because there's nothing here today. 19 It's not based upon anything that we 20 have before us. 21 But go ahead and try and answer 22 the question. 23 (By Mr. Blanks) 24 Q. Dr. Rowe, you'd agree with me, wouldn't you, 25 that Dow had the ability to do air monitoring for 297 1 mineral dust certainly before World War II, would you 2 not? 3 A. I'm sure we had the capability someplace, 4 but I don't know what time it was established. 5 Q. And you understand that the mechanical 6 devices, the tools for air sampling for dust, were 7 available before the War, correct, sir? 8 A. I don't know. 9 Q. Did you ever learn about the availability of 10 dust sampling tools? 11 A. I know nothing about dust sampling tools. 12 Q. If we assume, sir, that it wasn't until the 13 Fifties that the first air monitoring for asbestos 14 dust was done in a Dow facility, can you explain to us 15 why it had not been done in the preceding years? 16 MR. PIERCE: I'm going to again 17 object to an assumption not based on 18 anything before us and to the question 19 that follows that thought - that 20 assumption. 21 Q. Sir? 22 A. My assumption, in answer to yours, is that 23 we didn't consider it to be a - in our operation to be 24 a significantly - significant problem. 25 Q. And by that you mean it wasn't a significant 298 1 problem relative to some of the other problems that 2 you faced, some of the other chemicals you had to deal 3 with? 4 A. I didn't say that. That would have been a 5 factor, but I don't believe that - that we were too 6 concerned about the operations that we had that may 7 have been involving asbestos. 8 Q. Would it also be the case that you weren't 9 too concerned about operations involving silica? 10 A. Yes. 11 Q. It's true, though, isn't it, that certainly 12 by 1958 that Dow was aware of the long-term health 13 hazards of asbestos, correct, Mr. Rowe - Dr. Rowe? 14 A. I think that's a fair statement. 15 Q. And, in fact, your own laboratory did some 16 toxicology testing on asbestos fibers in that period, 17 did it not, 1958? 18 A. I don't know. We did some -- I don't know 19 what -- I don't know the dates. 20 Q. Well, what was the testing that you did that 21 you were thinking of there and couldn't remember a 22 date for? 23 A. We did some very preliminary work with 24 respect to particulates, using a technique that was 25 only a very preliminary evaluation of potential. And 299 1 this involved the injection interperitoneally of 2 suspensions of dust and examining the animals after a 3 period of time to see what the response was. 4 Q. What decade do you remember that being done 5 in? 6 A. Pardon? 7 Q. What decade do you remember those 8 experiments being done in? 9 A. I do not remember a time. I only remember 10 one time we were involved in that sort of thing. 11 Q. Was this work done for some other company 12 or -- 13 A. No. 14 Q. What led to this research at Dow? 15 A. This was done in attempting to answer a 16 question that Dow Corning had in the use of DeGussa 17 silica in one of their operations. And it was claimed 18 that DeGussa was not fibrogenic, I guess. And, so, 19 this was just a massive treatment to see if that were 20 true; and we used some materials like silica and 21 asbestos as positive controls. 22 Q. Did you see any mention of asbestos in any 23 of the documents you reviewed to prepare for your 24 deposition, Dr. Rowe? 25 MR. PIERCE: Objection to form of 300 1 the question. 2 A. I didn't understand. What? 3 Q. Did you review any documents to prepare for 4 your deposition, Dr. Rowe? 5 A. I don't recollect. 6 Q. Do you recollect preparing for this 7 deposition today? 8 A. I did not prepare for this deposition. I 9 just appeared. 10 Q. So, you weren't provided with any documents 11 to look at by anybody from Dow? 12 A. No, sir. 13 Q. Was it decided while you were responsible 14 administratively for industrial hygiene at Dow to 15 cease the use of asbestos thermal insulation products 16 in Dow plants? 17 A. I don't recollect that. 18 Q. Do you recollect that any consideration was 19 given by you or your staff to finding substitutes for 20 asbestos materials in Dow plants? 21 A. Yes. We were looking for something that 22 would replace dust known to be active. 23 Q. And you would also, then, have been looking 24 for replacements for sand as an abrasive to use in Dow 25 facilities? 301 1 A. I don't know for what purpose. 2 Q. Can you tell us what year that Dow ended all 3 asbestos exposures to people working in its plants? 4 MR. PIERCE: Objection to the 5 form. 6 A. I certainly cannot. 7 Q. Do you believe that at any time while you 8 were working with Dow that all asbestos exposures to 9 workers in the plants had ended? 10 A. I didn't get the end of that. 11 Q. Before you left Dow, was it the case that 12 workers in Dow plants were still facing asbestos dust 13 exposures in the plants? 14 A. I don't know. 15 Q. Is that something that you would expect your 16 industrial hygienists to have known? 17 MR. PIERCE: Objection to the 18 form. 19 A. I would expect so. 20 Q. What was done at Dow during the years you 21 were administratively responsible for industrial 22 hygiene to warn people working in your plants about 23 the hazards of toxic mineral dusts such as asbestos or 24 silica? 25 MR. PIERCE: Objection to the form 302 1 of the question. 2 A. I don't know. 3 Q. Who would you expect to -- to be 4 knowledgeable about that, sir? 5 A. I would expect Mr. Hoyle to know the answer 6 to that. 7 Q. Was it the policy of Dow to allow men 8 working in its plants to be exposed to harmful or even 9 deadly amounts of toxic dust, sir? 10 MR. PIERCE: Objection to form of 11 the question; argumentative, assumes 12 facts not in evidence, compound. 13 Q. Sir? 14 A. Well, philosophically you'd never want to 15 have people exposed to hazardous quantities of any 16 material. 17 Q. And was that -18 A. But -19 Q. -- the policy of Dow, as well as the 20 philosophy? 21 MR. PIERCE: Will you let him -22 Excuse me. 23 I don't believe you've 24 finished your answer, Doctor. Please 25 do it. 303 1 A. Now I'm confused. Certainly that's a 2 philosophy, but that doesn't mean that any exposure is 3 necessarily a hazard exposure. 4 Q. And would that also be true with respect to 5 exposures to carcinogens, Dr. Rowe? 6 A. Yes. My belief, yes. 7 Q. And how do you determine what is a safe 8 level of exposure to a carcinogen such as asbestos? 9 A. Very difficult. You try to minimize. But 10 the body has a remarkable ability to accommodate when 11 you're speaking of asbestos. We've been exposed to 12 asbestos since the beginning of time. 13 Q. Was it known at Dow in 1979 when you retired 14 what a safe maximum level of exposure to asbestos was? 15 A. I don't know. 16 Q. Was it known to you, sir? 17 A. No. 18 Q. Do you know now? 19 A. No. 20 Q. Do you think it's known to toxicological 21 science today? 22 A. I don't think so. 23 Q. What was the industrial hygiene program as 24 concerned contractor employees working in Dow plants 25 during the years that you were administratively in 304 1 charge of industrial hygiene? 2 A. I had nothing to do with contract 3 employees. I don't know what they did. My 4 understanding was that they were treated like the rest 5 of the Dow employees. 6 Q. That is, required to follow the same safety 7 rules and - 8 A. As far as I know. 9 Q. Was it the case at Dow that safety was 10 everybody's business in the plant? 11 A. That was our teaching. 12 Q. You have no recollection of the 1958 13 toxicology studies of asbestos short fibers done in 14 your laboratory by Dr. Olson, do you? 15 MR. ALMQUIST: I'm going to object 16 to the characterization in that 17 question that there was such a study 18 performed. I don't think there's any 19 evidence from any witnessso farthat 20 the study, as you've described it, was 21 performed in 1958. 22 MR. PIERCE: Objection. Join the 23 objection. 24 Q. While you were still with Dow, did you ever 25 obtain information about the incidence of 305 1 pneumoconiosis diseases in workers in Dow plants, sir? 2 A. I don't recollect. 3 Q. Who was R. A. Erhart? Do you remember 4 Dr. Erhart? 5 A. Erhart? 6 Q. From the coatings technical service. 7 A. No. I don't know him. 8 Q. You remember Ken Olson, don't you, sir? 9 A. Yes. 10 Q. And Mr. McCollister? 11 A. Yes. 12 Q. Were they working for you in 1958, Dr. Rowe? 13 MR. PIERCE: I think Dr. Rowe has 14 already testified he didn't even know 15 one of them. 16 Q. Well, "they" being the two gentlemen - 17 A. Would you -- Would you repeat who you were 18 asking me about at this point. 19 Q. Yes, sir. Messrs. Olson and 20 Mr. McCollister, sir. 21 A. They worked for me, but I can't attest to 22 '58. I don't -- The time frame is... 23 Q. By 1958 you were the director of toxicology 24 research, were you not, at the - at the biochemical 25 research lab? 306 I A. If that's what it says on the - 2 Q. It does. It says 1954. And there's no 3 change until '64, so - 4 A. Okay. 5 Q. Okay. Do you remember the form that you 6 used back then titled, "Data Sheet of Properties, 7 Health hazards, and Precautions for Safe Handling of 8 Materials"? 9 A. The name is familiar. 10 Q. Well, it's sort of a forerunner of a II Material Safety Data Sheet in a way. Yes? 12 A. Yes. 13 Q. What use would the technical - I'm sorry 14 the coatings technical service be making of asbestos 15 fibers at Dow in 1958, sir? 16 A. I don't know. 17 Q. Are you adquainted with any formulations for 18 floor tile that Dow worked on in the Fifties? 19 A. I'm not familiar with them. 20 Q. Did Dow, to your knowledge, ever manufacture 21 any floor tile? 22 A. Not to my knowledge. 23 Q. Would it have been making epoxy to sell to 24 others as a component of floor tile? 25 A. We made epoxies, yes. 307 1 Q. Was it the practice at Dow to experiment on 2 these component parts that it was selling to others, 3 such as the epoxy and floor tile? 4 MR. PIERCE: Objection to form of 5 the question. 6 A. Floor tile would - was in a rather curious 7 situation, I would think. 8 Q. Do you know who, if anybody, from your 9 company attended Dr. Selikoffs 1964 presentation on 10 asbestos health hazards in New York, sir? 11 A. I don't know. 12 Q. You didn't get to go, apparently. 13 A. I'm not sure. I don't know. 14 Q. When was it, Dr. Rowe, that Dow began to 15 fully warn about the hazards of asbestos dust on its 16 premises? 17 A. I don't know. 18 MR. PIERCE: Objection to the form 19 of the question. 20 A. I don't know. 21 Q. When was it that Dow began to warn people on 22 its premises that asbestos could cause pleural changes 23 in the lung? 24 A. I don't know. 25 Q. When was it that Dow's industrial hygiene 308 1 department or anybody else at Dow began to warn people 2 working on Dow premises that asbestos dust could cause 3 a permanent lung scarring? 4 A. I don't know. 5 MR. PIERCE: Objection to the 6 form. 7 Q. When, Dr. Rowe, did Dow begin to warn people 8 working on its premises that asbestos could cause lung 9 cancer? 10 A. I don't know. 11 Q. And when was it that Dow began to warn 12 people working on its plants that asbestos dust could 13 cause mesothelioma? 14 A. I don't know. 15 Q. Do you recall yourself learning when 16 asbestos came to be known to cause mesothelioma - 17 A. No. 18 Q. -- or suspected of it? 19 A. No. 20 Q. You've heard of that disease before, sir, 21 have you not? 22 A. I've heard of it, yes; but I don't know 23 when. 24 Q. Do you think, sir, that it would be proper 25 to begin to warn people about the health hazards of a 309 1 material like asbestos at the point when you first 2 suspect the material of being toxic and causing 3 disease? 4 MR. PIERCE: Objection to the form 5 of the question. 6 A. I think any time you can - you have 7 information of that nature it's well to distribute it 8 as far as possible. 9 Q. It was not the philosophy that you had that 10 you should wait for conclusive irrefutable scientific 11 evidence of a health hazard before warning the people 12 that might be exposed to a material, was it, sir? 13 MR. PIERCE: Objection to form of 14 the question and the terminology 15 "conclusive," "irrefutable," and 16 whatever else you used there. 17 But try to answer it, if you can. 18 A. I don't -- I don't know what was said or 19 what educational programs were in that theory. It's 20 desirable, of course, to do as much as you can. 21 Q. Well, as a toxicologist, was it your 22 personal view that you should not warn about a 23 suspected health hazard until you had conclusive 24 evidence of the hazard? 25 A. Well, you have to identify the hazard; but 310 1 then once it's known, certainly you should inform 2 people. 3 Q. Dr. Rowe, I have a document from among those 4 that you were kind enough to bring that you authored, 5 according to this. It's titled, "40 Years of Dow 6 Industrial Toxicology and Industrial Hygiene." 7 MR. PIERCE: Has that been marked, 8 Mr. Blanks? 9 MR. BLANKS: Well, it hasn't yet. 10 (By Mr. Blanks) 11 Q. Do you remember that paper, sir, as one you 12 would have given somewhere around 1977 or so? 13 A. I remember the paper. 14 Q. Do you remember a version of it from a year 15 earlier? 16 A. I beg your pardon. 17 Q. Do you remember one that you gave with the 18 same title a year earlier? 19 A. No. I don't -- I don't know the time 20 frame. That's - 21 Q. I found one that was titled, "39 Years of 22 Dow Industrial Toxiciology and Industrial Hygiene," 23 and then one titled "39 Years"; and they looked very 24 much alike. 25 MR. BLANKS: Do you have the other 311 1 one, Mr. Hobson? 2 (By Mr. Blanks) 3 Q. So, I couldn't figure out whether you 4 started to give it one year and didn't or you dusted 5 it off and snuck it in on them again the next year. 6 MR. PIERCE: There's no question. 7 Is there a question pending? 8 MR. BLANKS: You just raised one. 9 (PLAINTIFFS' EXHIBIT 760517 DOW 10 WAS MARKED FOR IDENTIFICATION 11 PURPOSES. SAME WILL BE FOUND IN 12 THE EXHIBIT VOLUMES ATTENDANT TO 13 THIS DEPOSITION.) 14 (By Mr. Blanks) 15 Q. Let me hand you these papers, sir, that 16 this -- This first one is titled, "39 years," 17 etcetera; and I've marked it 760517 DOW. It's said to 18 have been presented at the Dow Global Physicians 19 Meeting held at Newport, Rhode Island, May 17th of 20 '76. And the companion to it appeared to be the same 21 document with writing on it and a strike-out that 22 takes the 39 years up to 40. That's what perplexed me 23 a little. And I know your lawyer doesn't want you to 24 have your documents back but... 25 MR. BLANKS: You through reviewing 312 1 his document there? 2 MR. PIERCE: Well, I certainly 3 intend to review all of the parts 4 that you've put stickums on and 5 notations, - 6 MR. BLANKS: Well, please, carry 7 on. 8 MR. PIERCE: -- which I think is 9 appropriate. 10 Q. Dr. Rowe, do you - 11 MR. PIERCE: Just permit me to do 12 that - and plus your underlinings, plus 13 your notations. I think that's 14 appropriate 15 (By Mr. Blanks) 16 Q. Do you remember giving the paper twice or is 17 that - 18 A. I don't remember giving it twice. Could 19 well have been, though. 20 Q. Okay. 21 MR. PIERCE: Are you going to mark 22 for identification the one entitled 23 "39 years," Mr. Blanks? 24 MR. BLANKS: Well, we'll see what 25 we can figure out about it. 313 1 (By Mr. Blanks) 2 Q. Is the one that your lawyer is holding there 3 that's been written on, is that - is that - does that 4 carry your handwriting on there, sir? 5 A. It looks like it. Probably I cleaned up my 6 language. 7 MR. BLANKS: Well, for convenience 8 let's just connect those two and treat 9 them as one exhibit as labeled since 10 it's - It's the same type document but 11 with the written material on it. 12 MR. PIERCE: You mean you want "39 13 years" and the one "40 years" with all 14 the changes to be identified as a 15 single document? 16 MR. BLANKS: Sure. Why not? 17 MR. PIERCE: It's your choice. 18 Q. Now, I've got another typed version here, 19 Dr. Rowe, from your documents that you brought from 20 home that, as typed, says "40 Years of Dow Industrial 21 Toxicology and Industrial Hygiene" and shows you to be 22 the author of it. Would that be -- Would that be so, 23 sir? 24 25 MR. PIERCE: Could you hand it over so that the witness can look at 314 1 it; or do you expect him to read it 2 from across the room, sir? 3 MR. BLANKS: (Tendering document) 4 MR. PIERCE: Oh, I see you have 5 some stick-ons again. Have you made 6 any underlinings? 7 MR. BLANKS: Well, you can 8 probably assume that I have. 9 (By Mr. Blanks) 10 Q. Do you recall when or where you gave that 11 paper, Dr. Rowe? 12 A. No. I don't recall where, but I gave it. 13 (PLAINTIFFS' EXHIBIT 770000 DOW 14 WAS MARKED FOR IDENTIFICATION 15 PURPOSES. SAME WILL BE FOUND IN 16 THE EXHIBIT VOLUMES ATTENDANT TO 17 THIS DEPOSITION.) 18 (By Mr. Blanks) 19 Q. Okay. I've labeled that, the latter one, 20 770000 DOW for lack of a better date, inferring that 21 you did give it the year after '76; and it looks like 22 you did. 23 A. Was it the case, Dr. Rowe, that in a lot of 24 your professional writings and your professional 25 presentations that you did express your professional 315 1 opinions, based on your best knowledge and beliefs and 2 the information that you had at that time that you 3 wrote them or published it? 4 MR. PIERCE: Objection to the form 5 of the question. 6 A. Yes. 7 Q. One other thing, sir: Are the handwritten 8 notes on 770000 DOW your handwriting, sir? 9 A. That's the one we just looked at? 10 Q. Yes. 11 A. No, that's not my handwriting. 12 Q. Okay. Dr. Rowe, when did somebody first 13 contact you about giving a deposition in these cases? 14 A. I don't know. 15 Q. Was it the case that somebody from Dow did 16 contact you about testifying? 17 A. They indicated this might be required. 18 Q. Do you remember who it was, sir? 19 A. I think it -- No. I'm not sure. 20 Q. Okay. Is it one of the gentlemen here with 21 us today? 22 A. I think it was -- I think it was Mr. Stuart. 23 Q. All right, sir. And what did he tell you 24 about - 25 MR. PIERCE: Objection. 316 1 Objection. 2 Q. -- what was likely to be involved here? 3 MR. PIERCE: Look, I'm 4 representing Mr. Rowe here; and 5 although Dow is capable of taking care 6 of itself, certainly we're not going to 7 get into any conversations between 8 either Mr. Rowe and myself as his 9 attorney nor Dow which apparently 10 offered him up. So, let's cut this 11 business and not get to attorney-client 12 privileged areas, please. 13 MR. ALMQUIST: On behalf of Dow 14 Chemical - And I am here representing 15 Dow Chemical - I would object and raise 16 the attorney-client privilege for any 17 communications that were had with 18 Mr. Rowe as a former employee of Dow 19 concerning this lawsuit in which Dow is 20 a party. 21 Q. Then I'll repeat my question to you, sir. 22 What did people from Dow say to you about the 23 deposition say to you about the today, sir? 24 MR. PIERCE: I direct you not to 25 answer that question, Dr. Rowe. 317 1 Q. I take it that you're not going to answer me 2 because this man has told you not to, sir. Is that 3 right? 4 MR. PIERCE: His lawyer has told 5 him not to answer that question, that 6 it's a privileged communication. 7 Q. Dr. Rowe - 8 MR. BLANKS: Wait. You're 9 asserting the privilege on behalf of 10 Dow, sir, are you? 11 MR. ALMQUIST: I'm asserting 12 privilege on behalf of Dow. 13 MR. BLANKS: Oh. Well, then are 14 you instructing him not to answer, 15 Mr. Almquist? 16 MR. PIERCE: I have raised the 17 attorney-client objection to this 18 communication. I believe it is a 19 privileged communication. 20 (By Mr. Blanks). 21 Q. Okay. So, Mr. Rowe, there is no issue 22 between you and your attorney, I believe, in terms of 23 privileged communications yet. 24 MR. PIERCE: I'm going to direct 25 my client not to answer things that are 318 1 obviously privileged whether it's a 2 privilege between myself and Dr. Rowe 3 or in respect to Dow. What is improper 4 is improper; and I as his attorney know 5 it's improper, as you do or should. 6 MR. BLANKS: I know there's 7 something improper here, sir. We're 8 trying to get to the root of it for the 9 jury's benefit. 10 MR. ALMQUIST: I object to that 11 statement and ask that it be stricken 12 from the record as an argumentative 13 speech. 14 (By Mr. Blanks) 15 Q. Dr. Rowe, are either of these two gentlemen 16 seated on your right, Mr. Almquist or Mr. Stuart, here as 17 your attorneys today? 18 A. Are they what? 19 Q. Are they your attorneys?Have you hired 20 either of these two young lawyers to your right to 21 represent you today, sir? 22 A. No, sir. 23 Q. When did you firstmeet the gentleman to 24 your - to your right - I'm sorry - to your left who's 25 here as your attorney today? 319 1 A. I don't remember. 2 Q. Can you tell us what his name is, sir? 3 A. His name is Stanley Pierce. 4 Q. When did you -- When did you hire Mr. Pierce 5 to represent you, sir? 6 A. I didn't. 7 Q. All right, sir. And who did hire him to 8 represent you, The Dow Chemical Company? 9 A. No, sir. 10 Q. Did anybody hire him to represent you? 11 A. I hired nobody to represent me. 12 Q. So, this gentleman is not your attorney, 13 then, sir; is that right? 14 MR. PIERCE: Did you ask that I 15 represent you here, Dr. Rowe? 16 MR. BLANKS: Excuse me, sir. 17 You'll have the opportunity to 18 cross-examine. 19 (By Mr. Blanks) 20 Q. So, you're not paying Mr. Pierce to 21 represent you? 22 A. No, sir. 23 Q. And you did not hire him? 24 MR. ALMQUIST: I'm going to object 25 to any questions as to who is paying 320 1 Mr. Pierce as being improper 2 questions. 3 Q. I'm sorry. Dr. Rowe, you're not paying this 4 gentleman to be here as your attorney, are you, sir? 5 MR. PIERCE: I direct him not to 6 answer that. 7 A. Yes. 8 Q. Do you understand, sir, that Dow Chemical 9 may be paying this man to appear here? Sir? 10 A. It was my understanding. 11 Q. Okay. Do you also understand that this 12 Mr. Pierce is a - frequently an attorney who 13 represents - or frequently represents Dow Chemical 14 Company in litigation? 15 A. I know he has. 16 Q. And do you know that - what city he's from? 17 A. Yes. 18 Q. He's from New York, isn't he? 19 A. Yes. 20 Q. Do you know how you came to make his 21 acquaintance at all? 22 A. No. 23 Q. Are you being hired by Dow to be a 24 consultant in any of this litigation we're here to 25 testify about today? 321 1 A. I presume so. 2 Q. Have you made an arrangement with them to 3 pay you for your time, sir? 4 A. They have offered to do that. 5 Q. Are you going to let them do that? 6 A. Yes. 7 Q. And how much are they paying you for your 8 time? 9 A. I would believe that would be a personal 10 question that is probably not anybody's business. 11 Q. Well, you know, I might be inclined to agree 12 with you; but nontheless the jury has a right, I 13 think, to know what you're being paid by Dow to 14 consult with them, sir. 15 A. There have been no agreements made. 16 Q. So, you haven't given them any figure; and 17 they haven't suggested one? 18 A. Pardon? 19 Q. You haven't told them - given them a rate, 20 and they haven't suggested one? 21 A. I have not. 22 Q. You're still receiving a pension from Dow, 23 are you not? 24 A. Yes. 25 Q. Do you own any Dow stock? 322 1 A. Yes. 2 Q. Okay. How much? 3 MR. PIERCE: Look, I'm going to - 4 I'm going to direct you not to answer. 5 I don't see what the relevancy 6 is. He told you he owns Dow stock. 7 That's sufficient. I think we're going 8 way overboard in asking him those kinds 9 of things about his personal finances. 10 You really have the information you 11 need when you know he owns some Dow 12 stock. 13 MR. BLANKS: You know, that 14 thought just occurred to me, too. 15 (By Mr. Blanks) 16 Q. My apologies, Dr. Rowe. Dr. Rowe, I'd like 17 you to tell me about the conversations you've had with 18 Mr. Pierce concerning this litigation and this 19 deposition. 20 MR. PIERCE: I direct you not to 21 answer as attorney-client privilege. 22 MR. BLANKS: Dr. Rowe has already 23 stated you are not his attorney, sir. 24 You may be Dow's attorney but you are 25 not in a position to instruct this 323 1 witness and you do so at Dow's peril, 2 sir. 3 MR. PIERCE: No. I'm going to 4 instruct this witness. This witness 5 has specifically asked for me to 6 represent him here. And because you've 7 confused him in some of the questions, 8 I'm not going to change that 9 relationship. I direct the witness not 10 to answer that question. 11 (By Mr. Blanks) 12 Q. Dr. Rowe, are you refusing, then, sir, to 13 fell me about what Mr. Pierce told you to say or not 14 say or what might be asked or not asked in this 15 deposition? 16 MR. PIERCE: I object. I direct 17 the witness not to answer, and I also 18 object to your saying anything in 19 respect to what I've told the witness 20 to say as outrageous statement on your 21 part. 22 Q. Dr. Rowe, when did you learn that Dow was 23 going to arrange for this New York lawyer to appear 24 here at this deposition allegedly to represent you, 25 sir? 324 1 MR. PIERCE: Well, first of all, 2 I'd like to object to the 3 characterization of me as a "New York 4 lawyer." I certainly am familiar with 5 Dr. Rowe. Dr. Rowe asked that I 6 represent him. And I am not a New York 7 City lawyer, just - just for your own 8 edification, Mr. Blanks. 9 Q. Sir, are you going to answer me or not? 10 MR. PIERCE: Let's hear that 11 question again, please. 12 Q. The question was, when did you learn that 13 Dow had arranged for Mr. Pierce to appear here at this 14 deposition for you, sir? - to be with you. 15 A. I believe it was on Monday this week. 16 Q. And you hadn't asked to have an attorney 17 represent you at the deposition, had you, sir? 18 A. I expected to have an attorney representing 19 me, yes. 20 Q. And did you expect Dow to provide one of 21 their lawyers to represent you? 22 A. I didn't know how they were going to handle 23 it. I'm only an instrument. 24 Q. All right, sir. 25 MR. HOBSON: We need to change the 325 1 tape (directed to Mr. Blanks). 2 MR. BLANKS: Okay. Change - 3 MR. PIERCE: Wait. Leave 4 that -- Are you -- Is that the end of 5 the tape now? Leave it on for a 6 second. 7 If that is the end of the tape, 8 let me say that this deposition is now 9 concluded. You've had the amount of 10 time agreed upon. And with all due 11 respect and admiration which I happen 12 to have for Herschel Hobson: This has 13 been a travesty these two days of 14 irrelevancies and redundancies and 15 constant asking of leading and compound 16 questions; and we have now concluded 17 this matter. 18 (By Mr. Blanks) 19 Q. Dr. Rowe, are you available to continue 20 tomorrow or Monday, sir? 21 MR. PIERCE: Dr. Rowe is not 22 continuing. This deposition is at an 23 end right now. Thank you. You can go 24 to the Court for relief. 25 MR. BLANKS: Mr. Almquist, are you 326 1 going to terminate this deposition at 2 this point? 3 MR. ALMQUIST: I believe that the 4 deposition has been terminated. 5 MR. BLANKS: We are prepared to 6 continue pursuant to the notice either 7 tomorrow or on Monday at Dr. Rowe's 8 convenience and would like to know what 9 your pleasure is. 10 MR. ALMQUIST: I will be in trial 11 in Conroe, Texas, on Monday, 12 Mr. Blanks. So, my pleasure has been 13 preordained. 14 Q. Dr. Rowe, will you - 15 MR. PIERCE: Come (directed to the 16 witness). 17 Q. -- be available, sir, at some - 18 MR. PIERCE: Let's go, Dr. Rowe. 19 Q. -- point in time... 20 (AT THIS TIME MR. PIERCE AND THE 21 WITNESS LEAVE THE ROOM.) 22 MR. BLANKS: Let the record 23 reflect that Mr. Pierce, the New York 24 lawyer, has instructed Dr. Rowe, who 25 has said he is not represented by 327 1 Mr. Pierce, to leave the deposition and 2 walk out without answering the 3 questions; that counsel present are 4 prepared to either continue at this 5 time, depending upon the comfort and 6 convenience of Dr. Rowe, or to continue 7 tomorrow morning at his pleasure or on 8 Monday or at such time as soon 9 thereafter as is convenient to the 10 witness; and that all other parties are 11 present - remain present and apparently 12 are awaiting their opportunity to 13 cross-examine this witness. 14 Mr. Almquist, is it the position 15 of Dow Chemical that Dr. Rowe - 16 MR. ALMQUIST: I have nothing to 17 say on the record, Mr. Blanks. You can 18 understand - 19 MR. BLANKS: I'm sorry. Sir? 20 MR. ALMQUIST: I have nothing more 21 to say on the record. 22 MR. BLANKS: Well, it's my 23 understanding that you had presented 24 this man and requested us not to have 25 him served with a subpoena, which we 328 1 were certainly happy to do, based upon 2 your representation that he would be 3 available, that we were going to limit 4 the time we spent each day to a couple 5 hours in the morning and in the 6 afternoon because of the gentleman's 7 reputed ill health and his admitted 8 age. And we have done that out of 9 consideration to him. And we want to 10 finish our deposition. And as you 11 tendered him voluntarily and 12 courteously, we think we're entitled to 13 an answer on what your intentions are 14 as to the completion of this 15 deposition. 16 MR. ALMQUIST: And I have nothing 17 more to add at this point, Mr. Blanks. 18 I'm not going to get into a discussion 19 like this on the record. 20 MR. BLANKS: Mr. Stuart, you are 21 here as a counsel for Dow. I beg you 22 for some indication of what Dow's 23 intentions are with respect to the 24 conclusion of this gentleman's 25 deposition, sir. 329 1 MR. STUART: (No response) 2 MR. BLANKS: We're respectful of 3 his time and his condition if, indeed, 4 he does have a health problem; but 5 we've relied on the representations of 6 your counsel and through him of your 7 company to appear under these 8 circumstances and on this schedule. 9 MR. ALMQUIST: The representations 10 of which you speak, I believe, are 11 probably in writing and will speak for 12 themselves; so, needless to say, I 13 think we can stop this young lady's 14 incessant work on the keyboard at this 15 point. 16 MR. BLANKS: Then I take it 17 Mr. Stuart has no comment; and I'd 18 like the record to reflect that, as 19 well. 20 For the record, I want to attach 21 the remaining documents that were 22 brought to the deposition in response 23 to the subpoena duces tecum; and we'll 24 take this opportunity to go through 25 them and describe them with the labels 330 1 that we've placed on them. 2 Mr. Hobson, do you have those 3 papers? 4 MR. HOBSON: Yes. 5 MR. BLANKS: And I also would 6 suggest to Mr. Almquist that if we 7 can't resolve this amicably that we 8 will be forced to go before the Court 9 and regretfully ask for sanctions and 10 expenses in connection with this, 11 particularly with the flagrant 12 misconduct of - what appears to be that 13 of the outside counsel Dow has hired 14 here who purports to represent 15 Mr. Rowe. 16 17 18 (PLAINTIFFS' EXHIBIT 760600 DOW 19 WAS MARKED FOR IDENTIFICATION 20 PURPOSES. SAME WILL BE FOUND IN 21 THE EXHIBIT VOLUMES ATTENDANT TO 22 THIS DEPOSITION.) 23 We've labeled as Document 760600 24 DOW the - 25 MR. HOBSON: Can we do without the 331 1 video recording? 2 MR. BLANKS: Yes. We'll turn off 3 the video now so we can get through 4 this business. 5 -- (continuing) the document 6 brought by Dr. Rowe titled, "A 7 historical Account of Dow's 8 Environmental Stewardship," by Eugene 9 E. Kenega, K-e-n-e-g-a, said to be from 10 an internal report of Dow Chemical 11 U.S.A., comma, June 1976. 12 (PLAINTIFFS' EXHIBIT 740000 WHO 13 546 WAS MARKED FOR IDENTIFICATION 14 PURPOSES. SAME WILL BE FOUND IN 15 THE EXHIBIT VOLUMES ATTENDANT TO 16 THIS DEPOSITION.) 17 We've labeled as Exhibit 740000 18 WHO 546 a document brought by Dr. Rowe 19 entitled, "Assessment of the 20 Carcinogenicity and Mutagenicity of 21 Chemicals," said to be the report of a 22 W.H.O., World Health Organization, 23 scientific group from 1974 and being 24 four pages in length. 25 (PLAINTIFFS' EXHIBIT 780814 DOW, 332 1 WAS MARKED FOR IDENTIFICATION 2 PURPOSES. SAME WILL BE FOUND IN 3 THE EXHIBIT VOLUMES ATTENDANT TO 4 THIS DEPOSITION.) 5 Labeled as Exhibit 780814 DOW, a 6 document titled, "'Clinical Toxicology' 7 Viewed from an Industrial Setting," by 8 P. J. Gehring, G-e-h-r-i-n-g, of the 9 Toxicology Research Laboratory, Health 10 and Environmental Research, Dow 11 Chemical Company in Midland, Michigan, 12 being a symposium on clinical 13 toxicology apparently presented at the 14 Joint Fall Meeting of the American 15 Society of Pharmacology and 16 Experimental Therapeutics and Society 17 of Toxicology, Houston, Texas, 18 August 14th, 1978, bearing some 19 handwritten notes of unknown origin but 20 likely of Dr. Rowe. 21 (PLAINTIFFS' EXHIBIT 790518 DOW 22 WAS MARKED FOR IDENTIFICATION 23 PURPOSES. SAME WILL BE FOUND IN 24 THE EXHIBIT VOLUMES ATTENDANT TO 25 THIS DEPOSITION.) 333 1 Exhibit 790518 DOW is a document 2 titled, "Dedication Address," 3 Northwestern University Cancer Center, 4 by Philip Handler, President of the 5 National Academy of Sciences, on 6 May l8th, 1979, showing it was received 7 at C.M.S.A. on July 16th of 1979, and 8 indicating carbon copies to a variety 9 of persons on the front page and having 10 some underlines at different places in 11 the text as it was given to us by 12 Dr. Rowe yesterday afternoon. 13 (PLAINTIFFS' EXHIBIT 740919 DOW 14 WAS MARKED FOR IDENTIFICATION 15 PURPOSES. SAME WILL BE FOUND IN 16 THE EXHIBIT VOLUMES ATTENDANT TO 17 THIS DEPOSITION.) 18 Labeled as Plaintiffs' Exhibit 19 740919 DOW is a document titled, "Some 20 Basic Concepts of Toxicology and Some 21 Thoughts about the Development and Use 22 of Toxicological Information," authored 23 by V. K. Rowe as director, 24 Toxicological Affairs, Health and 25 Environmental Research, Dow Chemical 334 1 U.S.A. And at the bottom of this page, 2 it notes that it was for presentation 3 at the National Paint and Coatings 4 Association Meeting at The Homestead, 5 Hot Springs, Virginia, September 19th, 6 1974. 7 (PLAINTIFFS' EXHIBIT 751021 DOW 8 WAS MARKED FOR IDENTIFICATION 9 PURPOSES. SAME WILL BE FOUND IN 10 THE EXHIBIT VOLUMES ATTENDANT TO 11 THIS DEPOSITION.) 12 Labeled as Plaintiffs' 13 Exhibit 751021 DOW is a document 14 titled, "Concerns of Industry Related 15 to Carcinogenic Hazards," authored by 16 P. J. Gehring, D.V.M., Ph.D., and V. K. 17 Rowe, Sc.D. It appears this paper, as 18 adapted by V. K. Rowe for presentation 19 at the Sixth Annual Conference on 20 Environmental Toxicology was presented 21 at a meeting held at the Biltmore 22 Towers Hotel in Dayton, Ohio, on 23 October 21st through 23rd, 1975, notes 24 the original paper in its entirety was 25 presented by P. J. Gehring at the 335 1 National Meeting of Comprehensive 2 Cancer Centers of the United States, at 3 Duke, in Durham on April 10th, 1975. 4 MR. ALMQUIST: Not having seen the 5 document, to the extent that there is 6 editoral comments added by Mr. Blanks, 7 I would object to those and state that 8 the document will speak for itself. 9 MR. BLANKS: The face of the 10 document certainly speaks for itself; 11 but I thought for your convenience, 12 Mr. Almquist, I'd have a little excerpt 13 from the face of it in the text so you 14 wouldn't have to go looking for it in a 15 long volume. 16 (PLAINTIFFS' EXHIBIT 780000 NIH 17 1594 WAS MARKED FOR IDENTIFICATION 18 PURPOSES. SAME WILL BE FOUND IN 19 THE EXHIBIT VOLUMES ATTENDANT TO 20 THIS DEPOSITION.) 21 Labeled as Plaintiffs' 22 Exhibit 780000 NIH is a photocopy of a 23 booklet Dr. Rowe brought from his 24 personal files entitled, "Asbestos 25 Exposure: What It Means, What To Do," 336 1 and appearing on its face to be a 2 Department of Health, Education, and 3 Welfare Publication No. (NIH) 78-1594. 4 Let's change this exhibit number 5 to 780000 NIH 1594 to be consistent 6 with the title that's been put on it. 7 (PLAINTIFFS' EXHIBIT 780421 8 WAS MARKED FOR IDENTIFICATION 9 PURPOSES. SAME WILL BE FOUND IN 10 THE EXHIBIT VOLUMES ATTENDANT TO 11 THIS DEPOSITION.) 12 Plaintiffs' Exhibit 780421 DOW is 13 titled, "Overview -- Science Society 14 and Health Risk Control," authored by 15 V. K. Rowe and, according to the 16 document, was presented at the American 17 Bar Association Institute Program on 18 Law, Science, and Technology and Health 19 Risk Regulation April 20th and 21st at 20 the Mayflower Hotel, Washington, D.C. 21 (PLAINTIFFS' EXHIBIT 780900 NIOSH 22 WAS MARKED FOR IDENTIFICATION 23 PURPOSES. SAME WILL BE FOUND IN 24 THE EXHIBIT VOLUMES ATTENDANT TO 25 THIS DEPOSITION.) 337 1 Plaintiffs' Exhibit 780900 NIOSH 2 is a two-page excerpt from a document 3 titled, "NIOSH/OSHA Pocket Guide to 4 Chemical Hazards," brought by Dr. Rowe 5 from his personal library and appearing 6 on its face to have been published in 7 September of 1978 by the U.S. 8 Department of Health Education and 9 Welfare and the U.S. Department of 10 Labor. 11 MR. HOBSON: Mr. Almquist told us 12 that he copied only the first couple of 13 pages of this because it was in the 14 public domain. 15 (PLAINTIFFS' EXHIBIT 790423 C&EN 16 WAS MARKED FOR IDENTIFICATION 17 PURPOSES. SAME WILL BE FOUND IN 18 THE EXHIBIT VOLUMES ATTENDANT TO 19 THIS DEPOSITION.) 20 MR. BLANKS: The next is 21 Plaintiffs' Exhibit 790423 C&EN, being 22 pages 23 through 50 of what would 23 appear to be articles from the 24 publication Chemical and Engineering 25 News. 338 1 (PLAINTIFFS' EXHIBIT 790900 DOW 2 WAS MARKED FOR IDENTIFICATION 3 PURPOSES. SAME WILL BE FOUND IN 4 THE EXHIBIT VOLUMES ATTENDANT TO 5 THIS DEPOSITION.) 6 The next document is Plaintiffs' 7 Exhibit 790900 DOW titled, "Industrial 8 Hygiene - Truly an Interdisciplinary 9 Science, authored by V. K. Rowe, and 10 appearing in the American Industrial 11 Hygiene Association Journal in 1979. 12 (PLAINTIFFS' EXHIBIT 791004 DOW 13 WAS MARKED FOR IDENTIFICATION 14 PURPOSES. SAME WILL BE FOUND IN 15 THE EXHIBIT VOLUMES ATTENDANT TO 16 THIS DEPOSITION.) 17 Plaintiffs' Exhibit 791004 DOW is 18 the document brought by Dr. Rowe, 19 titled, "Environmentally Induced 20 Cancer... Separating Truth from Myth," 21 appearing to be a talk by Dr. Harry 22 Demopoulos of the New York University 23 Medical Center, presented to the 24 Synthetic Organic Manufacturers 25 Chemical Association October 4th, 1979, 339 1 in Hasbrouck Heights, New Jersey. 2 (PLAINTIFFS' EXHIBIT 801013 DOW 3 WAS MARKED FOR IDENTIFICATION 4 PURPOSES. SAME WILL BE FOUND IN 5 THE EXHIBIT VOLUMES ATTENDANT TO 6 THIS DEPOSITION.) 7 Plaintiffs' Exhibit 801013 DOW is 8 a ten-page set of papers stapled 9 together, as it was produced by the Dow 10 attorneys, bearing on the cover page a 11 date of October 13th, 1980, on a Dow 12 letterhead, and being a letter from 13 John R. Venable, V-e-n-a-b-l-e, M.D., 14 to Peter F. Infante, I-n-f-a-n-t-e, at 15 the U.S. Department of Labor, 16 Occupational Health and Safety 17 Administration, followed by other 18 correspondence, a photocopy of an item 19 from a newspaper, and a two-page item 20 from some other publication, the 21 Current Report from the B.N.A.; and, 22 finally, a photocopy of a form bearing 23 the title "Who's Who in Science and 24 Engineering" with what would appear to 25 be a signature of V. K. Rowe, dated 340 1 6-29-91, and setting out apparently his 2 professional credentials. 3 MR. ALMQUIST: And let me just say 4 on the record that Mr. Blanks 5 characterized that as a document 6 produced by Dow's attorneys. That was 7 a document that Mr. Rowe had provided 8 in response to the subpoena duces 9 tecum. It's not being produced by Dow 10 or Dow's attorneys. 11 MR. BLANKS: Well, my apologies. 12 It was, in fact, handed to me by the 13 Dow attorney; and I understood it to be 14 produced by Mr. Rowe, as Mr. Almquist 15 stated. 16 And to be certain, we've marked 17 as Exhibit 141005 ROWE V. K. the 18 curriculum vitae brought by Dr. Rowe. 19 (PLAINTIFFS' EXHIBIT 810000 FCT 20 WAS MARKED FOR IDENTIFICATION 21 PURPOSES. SAME WILL BE FOUND IN 22 THE EXHIBIT VOLUMES ATTENDANT TO 23 THIS DEPOSITION.) 24 Exhibit 810000 FCT is a collection 25 of material brought by Dr. Rowe that is 341 1 titled, "Twenty Years of Toxicology," 2 and indicates contents of various 3 articles on the topic of toxicology, 4 not all of which are included in the 5 package, but most of which are. 6 (PLAINTIFFS' EXHIBIT 801100 ACSH 7 WAS MARKED FOR IDENTIFICATION 8 PURPOSES. SAME WILL BE FOUND IN 9 THE EXHIBIT VOLUMES ATTENDANT TO 10 THIS DEPOSITION.) 11 Plaintiffs' Exhibit labeled as 12 801100 ACSH is a photocopy Dr. Rowe 13 brought of what appears to be an issue 14 of the American Council on Science and 15 Health News and Views shown to be a 16 addressed to Dr. John A. Zapp, Jr., a 17 consultant in toxicology and industrial 18 hygiene in Kennett Square, 19 Pennsylvania, and showing on its face 20 to be Volume I, No. 6, from November 21 and December of 1980 of News and 22 Views. 23 (PLAINTIFFS' EXHIBIT 820200 OH&S 24 WAS MARKED FOR IDENTIFICATION 25 PURPOSES. SAME WILL BE FOUND IN 342 1 THE EXHIBIT VOLUMES ATTENDANT TO 2 THIS DEPOSITION.) 3 Plaintiffs have labeled as 4 Exhibit 820200 OH&S, being pages 30 5 through 34 of what appears to be the 6 February 1982 issue of a publication 7 called Occupational Health and Safety. 8 And the article is entitled, 9 "Untangling the Asbestos Mess." 10 MR. HOBSON: I'm trying to catch a 11 plane. 12 MR. BLANKS: Are you leaving me? 13 Well, okay. It's been nice seeing you, 14 Herschel. Stop around some time. 15 (PLAINTIFFS' EXHIBIT 840209 NIOSH 16 WAS MARKED FOR IDENTIFICATION 17 PURPOSES. SAME WILL BE FOUND IN 18 THE EXHIBIT VOLUMES ATTENDANT TO 19 THIS DEPOSITION.) 20 Plaintiffs' have labeled as 21 Exhibit 840209 NIOSH a document brought 22 by Dr. Rowe titled, "Current 23 Intelligence Bulletin 41," on 24 1,3-Butadiene, appearing to be 25 published by the U.S. Department of 343 1 Health and Human Services. 2 (PLAINTIFFS' EXHIBIT 841017 DOW 3 WAS MARKED FOR IDENTIFICATION 4 PURPOSES. SAME WILL BE FOUND IN 5 THE EXHIBIT VOLUMES ATTENDANT TO 6 THIS DEPOSITION.) 7 Labeled as Plaintiffs' 8 Exhibit 841017 DOW is a document 9 brought by Dr. Rowe, titled, 10 "Toxicology in Michigan Today, Risk 11 Assessment in Toxicology: Yesterday, 12 Today and Tomorrow," with a date of 13 October 17th, 1984, and showing on the 14 program within a presentation by 15 Dr. Verald K. Rowe titled, "From the 16 Past: Experience in Toxicological 17 Hazard Evaluation," followed by 18 material prepared on a typewriter and 19 with handwritten notes thereon. 20 (PLAINTIFFS' EXHIBIT 841018 DOW 21 WAS MARKED FOR IDENTIFICATION 22 PURPOSES. SAME WILL BE FOUND IN 23 THE EXHIBIT VOLUMES ATTENDANT TO 24 THIS DEPOSITION.) 25 Plaintiffs' Exhibit 841018 DOW is 344 1 a document produced by Dr. Rowe titled, 2 "'Experimentation, Experience, and the 3 Media,'" a Symposium of Media, Science, 4 Industry and Public Officials," held in 5 Midland, Michigan, on October 18th, 6 1984, sponsored by The Dow Chemical 7 Company and indicating the subjects on 8 which talks were given and appearing to 9 contain three pages listing symposium 10 attendees including V. K. Rowe and 11 other Dow Chemical Company employees. 12 So, I would ask that you attach 13 all of these, Ms. Reporter, as exhibits 14 to the deposition arranging them in the 15 numerical order in which they've been 16 labeled. 17 MR. ALMQUIST: And we will 18 probably have substantive objections to 19 some of those in terms of their being 20 hearsay in nature. I just want to 21 preserve that for the record. 22 I just would point out that I'm 23 still here, the attorney for Dow 24 Chemical, at the conclusion of the 25 record here today. 345 1 Mr. Blanks, I believe that you 2 will find in your files a letter from 3 me where on behalf of Dow we agreed to 4 make Mr. Rowe available on October 1st 5 and 2nd for two hours in the morning 6 and two hours in the afternoon. We've 7 not retained Mr. Rowe as an expert 8 witness in this case to give trial 9 testimony. We are seeking his 10 testimony as a fact witness. We have 11 agreed to compensate him for his time 12 to come here today to give that 13 testimony. Beyond that we have no 14 control over Mr. Rowe, and we have been 15 informed in no uncertain terms that 16 Mr. Rowe has an attorney, Mr. Pierce. 17 And Mr. Pierce will not listen to what 18 we have to say. 19 MR. BLANKS: Well, I do not have 20 any knowledge of the letter, although I 21 certainly can't imagine that you would 22 misspeak about its contents. And the 23 matter of Mr. Pierce remains, of 24 course, to be brought before the Court, 25 and likely will be. Thank you for your 346 1 courtesy and your silence. 2 Are we are off the record now? 3 Do you have anything to say? 4 MR. RUSSELL: No. Just that I'm 5 also still here and that I object to 6 the early termination without any 7 notice or opportunity for people to ask 8 questions and that if the matter is 9 brought before the Court, I'd like to 10 request that whoever is sanctioned will 11 have to pay for all of us to come back 12 out here and resume the deposition. 13 I'm leaving. 14 MR. BLANKS: Good bye. 15 Okay, guys. 16 (AT THIS TIME, APPROXIMATELY, 17 3:05 P.M., THE PROCEEDINGS OF 18 OCTOBER 2, 1992, WERE CONCLUDED.) 19 20 21 22 23 24 25 347 1 THE STATE OF ARIZONA 2 COUNTY OF : 3 4 I, VERALD K. ROWE, hereby certify that I 5 have read the foregoing transcript of my testimony 6 given in the foregoing numbered and styled case, and 7 that same is true and correct to the best of my 8 knowledge and belief. 9 I further certify that any and all 10 corrections have been made on a separate page and 11 initialed by me. 12 This day of , 19 . 13 14 15 VERALD K. ROWE 16 SWORN TO AND SUBSCRIBED BEFORE ME this 17 day of , 19 . 18 19 NOTARY PUBLIC 20 My Commission Expires: 21 22 23 24 25 348 1 THE STATE OF TEXAS : 2 COUNTY OF JEFFERSON: 3 I, SANDRA S. SULLIVAN, a Certified Shorthand 4 Reporter for the State of Texas, hereby certify 5 pursuant to the Texas Rules of Civil Procedure and/or 6 agreement of the parties present to the following: 7 8 That this deposition transcript is a true 9 record of the testimony given by Verald K. Rowe, the 10 Witness named herein, on October 1, 1992, and 11 October 2, 1992, after said Witness was duly sworn by 12 me. 13 14 SWORN TO AND SUBSCRIBED by me on the 15 23rd day of October, 1992. 16 17 18 SANDRA S. SULLIVAN, CSR, RPR 19 Certification No.: 2411 Expiration Date: 12-31-93 20 Business Address: Charlotte Smith Reporting, Inc. 21 22 Telephone: 23 235 Orleans Beaumont, Texas 77701 (409) 839-4407 24 25