Document rBmqggeQ3wzGpXM5VqeQ27vrr

1 2 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA 4 FOR THE COUNTY OF ORANGE 5 6 7 8 MARY GABALDON, individually and ) as Personal Representative of ) 9 the Estate of Esequiel Gabaldon; ) STEVEN GABALDON, individually; ) 10 and PAUL GABALDON, individually, ) ) 11 Plaintiffs, ) ) 12 vs. ) No. 811474 ) 13 BOEING; ROCKWELL; THE BRUSH ) BERYLLIUM COMPANY (formerly Doe ) 14 Defendant No. 1); and DOES 3 ) through 100, inclusive, ) 15 ) Defendants. ) 16 ) 17 18 DEPOSITION OF SHELDON H. RABINOVITZ, Ph.D., C.I.H. 19 Saturday, October 21, 2000 20 Long Beach, California 21 22 23 REPORTED BY: Lyn Corrin Aaker, CSR No. 6228 24 25 1 1 2 3 4 Deposition of SHELDON H. RABINOVITZ, 5 Ph.D., C.I.H., an Expert Witness, taken 6 on behalf of Plaintiffs, at 401 East 7 Ocean Boulevard, Suite 800, Long Beach, 8 California 90802, commencing at the hour 9 of 11:00 a.m., Saturday, October 21, 2000, 10 before Lyn Corrin Aaker, CSR No. 6228, 11 pursuant to Notice of Taking Deposition. 12 13 14 15 APPEARANCES OF COUNSEL: 16 For Plaintiffs: 17 18 19 For Defendant 20 BRUSH WELLMAN COMPANY: 21 22 LAW OFFICES OF RAPHAEL METZGER BY: RAPHAEL METZGER Attorney at Law 401 East Ocean Boulevard Suite 800 Long Beach, California 90802 LAW OFFICES OF PETER J. NOVA BY: PETER J. NOVA Attorney at Law 456 Patten Street Sonoma, California 95476 23 24 25 2 1 INDEX 2 3 WITNESS EXAMINATION PAGE 4 Sheldon H. Rabinovitz, 5 Ph.D., C.I.H. By Mr. Metzger By Mr. Metzger (cont'd) 6 89 6 7 8 EXHIBITS FOR IDENTIFICATION 9 Plaintiffs' 1 Copy of curriculum vitae; 9 pages 10 Plaintiffs' 2 Copy of deposition notice; 11 5 pages 7 9 12 Plaintiffs' 3 Copy of handwritten notes; 2 pages 13 Plaintiffs' 4 Copy of handwritten notes; 14 2 pages 72 72 15 Plaintiffs' 5 Copy of 11/99/51 letter; 4 pages 16 Plaintiffs' 6 Copy of "Toxicity of 17 Beryllium"; 2 pages 73 73 18 Plaintiffs' 7 Copy of "Simplified Industrial Hygiene 19 Controls for Machining Metallic Beryllium"; 20 17 pages 73 21 Plaintiffs' 8 Copy of "At Autonetics: An unrelenting war on 22 hazards"; 2 pages 74 23 Plaintiffs' 9 Copy of "A Few Facts About Beryllium"; 24 8 pages 74 25 3 1 (continued) INDEX 2 3 EXHIBITS FOR IDENTIFICATION 4 Plaintiffs' 10 Copy of "Report of Survey Committee Concerning 5 Beryllium Disease Problems"; 41 pages 6 Plaintiffs' 11 Copy of 1/25/76 letter; 7 3 pages 92 93 8 Plaintiffs' 12 Copy of 4/21/81 letter and attachments; 21 pages 9 Plaintiffs' 13 Copy of 7/14/81 letter; 10 5 pages 93 94 11 Plaintiffs' 14 Copy of "Industrial Hygiene Walk-through Survey"; 12 24 pages 94 13 Plaintiffs' 15 Copy of "General Process 95 Specification"; 10 pages 14 Plaintiffs' 16 Copy of "Health and Safety 95 15 Aspects of Beryllium"; 21 pages 16 Plaintiffs' 17 Copy of "Health & Safety 96 17 Aspects of Beryllium, Training Session Attendance"; 18 12 pages 19 Plaintiffs' 18 Copy of "Material Safety Data Sheet"; 3 pages 20 Plaintiffs' 19 Copy of 8/7/84 letter; 21 2 pages 96 96 22 Plaintiffs' 20 Copy of 8/27/85 letter; 1 page 23 Plaintiffs' 21 Copy of "Health Effects 24 of Beryllium and its Compounds"; 8 pages 25 97 97 4 1 (continued) INDEX 2 3 EXHIBITS FOR IDENTIFICATION 4 Plaintiffs' 22 Copy of 3/12/87 letter; 3 pages 5 Plaintiffs' 23 Copy of 3/12/87 letter; 6 1 page 98 98 7 Plaintiffs' 24 Copy of "Warning & Caution 98 Labels"; 5 pages 8 Plaintiffs' 25 Copy of "Environmental 99 9 Surveillance" reports; 12 pages 10 Plaintiffs' 26 Copy of "Toxicological 99 11 Profile for Beryllium"; 9 pages 12 Plaintiffs' 27 Copy of "Statement of 100 13 Current Knowledge on Chronic Beryllium Disease"; 4 pages 14 Plaintiffs' 28 Copy of "Government 100 15 Responses to Beryllium Uses and Risks"; 18 pages 16 17 WITNESS INSTRUCTED NOT TO ANSWER 18 Page Line 19 90 18 20 116 7 21 22 WITNESS REFUSES TO ANSWER 23 Page Line 24 90 22 25 116 23 5 1 SATURDAY, OCTOBER 21, 2000, LONG BEACH, CALIFORNIA 2 11:00 A.M. 3 *** 4 5 SHELDON H. RABINOVITZ, Ph.D., C.I.H., 6 the witness herein, having been first duly sworn, 7 was examined and testified as follows: 8 9 EXAMINATION + 10 BY MR. METZGER: 11 Q. Good morning, sir. Would you 12 introduce yourself for the record. 13 A. My name is Sheldon Rabinovitz. 14 Q. And is that spelled with a "v" or a 15 "w"? 16 A. A "v." 17 Q. That's what I thought. You are a 18 Ph.D. Correct? 19 A. Yes. 20 Q. Do you prefer being called Doctor? 21 A. It doesn't matter. 22 Q. Mr. Rabinovitz, we're here for your 23 deposition today. I assume you've given a number of 24 depositions over your career. Is that true? 25 A. Yes. 6 1 Q. Can you tell me approximately how 2 many? 3 A. I don't know the exact number. It's 4 something over a hundred. 5 Q. All right. I would take it, then, 6 you're comfortable with the process and don't need 7 to be instructed about it. 8 A. I think I know the process, yes. 9 Q. The key thing is, of course, that you 10 are under oath, and you understand that you are 11 obligated to testify truthfully? 12 A. Yes. 13 Q. All right. You have been asked to 14 bring certain documents with you to the deposition 15 today. Do you have a curriculum vitae here? 16 A. Yes. It's not my most current one, 17 but there's nothing substantially different from the 18 current one. 19 MR. METZGER: Well, then, we will have this 20 curriculum vitae marked as Exhibit 1. 21 (A copy of the aforementioned 22 document, consisting of nine pages, was 23 marked by the court reporter as 24 Plaintiffs' Exhibit+ 1 for identification; 25 attached hereto.) 7 1 BY MR. METZGER: 2 Q. I see a fax transmittal on this one 3 dated 1995. Was this prepared in 1995? Do you 4 know? 5 A. I assume it was. 6 Q. What has been added to your current 7 curriculum vitae which is not on this one? 8 A. I took off the personal data. I 9 figured I'm old enough now. It's not relevant. And 10 I've given a presentation on indoor air quality. It 11 also doesn't mention that I've given now some 12 lectures in toxicology at the University of 13 Maryland, and I'm planning to prepare to teach a 14 course in toxicology at the University of Maryland. 15 I think that's just about the only difference. 16 Q. All right. Let me see. There are 17 some publications listed here. Have you published 18 any articles or any papers or anything which is not 19 listed on this list here? 20 A. No. I don't think there are any 21 publications that aren't listed there. 22 Q. Have you published anything during 23 the last ten years? 24 A. No. I don't think so. 25 Q. Do you have a list of cases in which 8 1 you've testified? 2 A. No. 3 MR. METZGER: I'll mark this as Exhibit 2. 4 It's the notice of deposition. 5 (A copy of the aforementioned 6 document, consisting of five pages, was 7 marked by the court reporter as 8 Plaintiffs' Exhibit+ 2 for identification; 9 attached hereto.) 10 BY MR. METZGER: 11 Q. Did you receive a copy of this 12 document? 13 A. No. 14 Q. Were you aware you were to bring a 15 list of cases in which you've testified? 16 A. I don't have a prepared list of all 17 the cases. I do have a list of cases that were done 18 in Federal Court, but I understand this is a 19 State Court; so I didn't bring that. Again, I don't 20 have a list of all my cases. 21 Q. Do you have access to that that 22 someone could fax it over here now? 23 A. Unfortunately not today. 24 Q. Unfortunately your deposition is 25 today. Could you have that faxed over Monday 9 1 morning? 2 A. Sure. 3 Q. Fine. 4 Mr. Nova, would you see that that 5 happens? 6 MR. NOVA: Yes. 7 MR. METZGER: Thank you. 8 Q. By whom are you currently employed? 9 A. Sandler Occupational Medicine 10 Associates. 11 Q. And how long have you been employed 12 by Sandler? 13 A. On a full-time basis since 1989. 14 Q. And what is your position? 15 A. I am in charge of industrial hygiene 16 and toxicology. 17 Q. Okay. Is Sandler Occupational 18 Medicine Associates a corporation? 19 A. Yes. 20 Q. And are you a corporate officer? 21 A. I have a title of vice president. 22 Would that make me a corporate officer? 23 Q. I think so. 24 A. Okay. 25 Q. And do you have a stock ownership 10 1 interest in this company? 2 A. I do own some stock in it. 3 Q. How large is the company? 4 A. I think we have about 15 people. 5 Q. Whom do you report to? 6 A. Dr. Sandler. 7 Q. And what is his position? 8 A. He is the president. 9 Q. Are there any other vice presidents? 10 A. Yes. 11 Q. Who? 12 A. Richard Blume. 13 Q. And who is he? 14 A. He is an occupational physician. 15 Q. What is your ownership interest in 16 the company? 17 A. I think it's 13 percent. 18 Q. When you serve as a consultant or 19 expert in litigation matters, is all of the money 20 that you receive paid to Sandler Occupational 21 Medicine Associates? 22 A. Yes, it is. 23 Q. What do you charge for deposition and 24 trial testimony? 25 A. It's $300 an hour with no minimum. 11 1 Q. During this year of 2000, since we're 2 now coming up towards the end of October, 3 approximately how many depositions have you given 4 this year? 5 A. Ten. 6 Q. Do you typically give about one a 7 month? 8 A. Lately I tend to have been giving 9 more. This year I've probably given more than I've 10 given -- ever given in the past. 11 Q. Okay. With respect to the ten 12 depositions that you gave this year, in any of those 13 depositions were you testifying as an expert on 14 behalf of a worker claiming to be injured? 15 A. No. 16 Q. In every one of those cases were you 17 testifying on behalf of a defendant in the lawsuit? 18 A. This year, yes. 19 Q. Then let's go back a year to 1999. 20 Approximately how many depositions did you give that 21 year? 22 A. I don't remember the exact number. 23 MR. NOVA: Well, then, don't guess. If you 24 can give a reasonable approximation, then do that. 25 THE WITNESS: It's reasonable. I would say 12 1 around five. 2 BY MR. METZGER: 3 Q. And for those five cases in 1999, for 4 any of those cases were you testifying as an expert 5 on behalf of a worker who claimed to be injured? 6 A. No. 7 Q. With respect to every one of those 8 five cases, were you testifying on behalf of the 9 defendant? 10 A. Yes. 11 Q. Since 1995, have you testified on 12 behalf of a worker claiming to be injured in any 13 case? 14 A. Yes. 15 Q. What cases? 16 A. I can remember one case where a 17 worker claimed he was exposed to levels of chlorine 18 gas that caused permanent health effects. 19 Q. And what were those health effects? 20 A. He needed a lung transplant. 21 Q. What were the actual health effects? 22 A. His lung was damaged to the point 23 where it wasn't functioning as it needs to for him 24 to continue to lead a normal life. 25 Q. You are a toxicologist. Correct? 13 1 A. Yes. 2 Q. Can you tell me what the toxic effect 3 was in that case? 4 A. Well, it was chlorine would 5 physically damage lung structures. It would destroy 6 the alveoli, linings, and associated structures. 7 Q. And, therefore, was that a fibrotic 8 lung disease? 9 A. No. It was not a fibrotic lung, 10 although from some of the scarring that might have 11 been caused as it might have healed, there might 12 have been some fibrosis for him. But it went 13 beyond. It damaged the alveoli. 14 Q. The airways were also damaged? 15 A. Yes. 16 Q. And what was nature of your testimony 17 in that case? 18 A. That the place where he was working 19 that day was negligent in allowing him to be exposed 20 to the chlorine gas and then after the exposure not 21 providing medical assistance. 22 Q. Was this an acute exposure case? 23 A. Yes. 24 Q. All right. Have you ever testified 25 on behalf of an injured worker or a worker who 14 1 claimed to be injured as a result of chronic 2 exposure to a toxin? 3 A. I can't remember any. 4 Q. Have you testified on behalf of 5 defendants in cases where it was claimed that the 6 worker had chronically been exposed to a toxin and 7 claimed injury? 8 A. Yes. 9 Q. Approximately how many such cases? 10 A. I don't know the number. It's more 11 than ten. 12 Q. Have you testified as an expert on 13 behalf of defendants in any lung disease cases or 14 chronic lung disease cases? 15 A. Yes. 16 Q. What types of cases were those? 17 A. The ones that I can think of are 18 chromium, asbestos, and -- I mean, I was involved in 19 another Brush litigation case. 20 Q. That was beryllium? 21 A. Beryllium. This was just for 22 pulmonary effects. Right? 23 Q. Yes. 24 A. We can include RADS as part of a 25 pulmonary effect; so it would also include 15 1 formaldehyde and organic solvents. 2 Q. In what other types of chronic 3 exposure cases have you testified for defendants? 4 A. Let's see. We've already listed 5 solvents, isocyanates, lead, aluminum, mercury -6 take out mercury. That wasn't litigation -7 silica. Those are the main ones I can think of. 8 Q. Okay. The isocyanates, was that a 9 pulmonary case? 10 A. Yes. 11 Q. And was the silica a pulmonary case? 12 A. Yes. 13 Q. And was the aluminum a pulmonary 14 case? 15 A. Actually, that was, too. Did you 16 expand that to everything? I forgot. 17 Q. I did. But it seemed to me we 18 mentioned -19 A. Benzene. That's part of solvents. 20 Q. Sure. 21 A. Naphthalene. It wasn't a worker. It 22 was an environmental case. I'm trying to think of 23 other target organs. Those are still the main ones 24 that come to mind. 25 Q. Okay. Would it be true that more 16 1 than 95 percent of the testimony that you've 2 provided has been on behalf of defendants? 3 A. Yes. 4 Q. Other than this one acute exposure 5 chlorine gas case, are there any other cases in 6 which you've testified on behalf of an injured 7 worker? 8 A. I can't remember the injured worker, 9 but injured persons, I have done that. 10 Q. What such cases? 11 A. Cases involving carbon monoxide 12 exposures in vehicles and boats. 13 Q. Were those acute exposure cases? 14 A. Yes. Those are the ones I can think 15 of. 16 Q. Any others? 17 A. I can't think of any others at the 18 moment. 19 Q. With respect to the chlorine gas 20 exposure case, you were testifying on behalf of the 21 worker against the employer. True? 22 A. Actually, it was the worker against 23 the site. He worked for one company but was as part 24 of his job on another site. 25 Q. In that case you were not testifying 17 1 against a manufacturer of the chlorine. True? 2 A. The chlorine was generated by the 3 site that was being sued; so in a sense it was the 4 manufacturer, but it was a byproduct. It wasn't 5 meant to be generated. It was an accidental 6 emission. 7 Q. It was generated from what? 8 A. It was generated from the -- it was 9 at a hazardous waste treatment facility, and it was 10 generated from the accidental mixing of certain 11 chemicals. 12 Q. Okay. In the carbon monoxide cases, 13 did you testify against any of the manufacturers of 14 the vehicles? 15 A. Yes. 16 Q. Which manufacturers? 17 A. Twice against General Motors and once 18 against the Trojan Yacht Manufacturing Company. 19 Q. Have you ever testified against a 20 manufacturer of a chemical? 21 A. I can't think of any. I also -22 actually, OSHA asked me to be an expert witness for 23 them against -- it was about a worker excessively 24 exposed to a solvent; so I was an expert witness for 25 OSHA against the manufacturer. Not the 18 1 manufacturer, but the employer of this worker. 2 Q. When was that? 3 A. That would have been about 1986, I 4 think. 5 Q. Who was the attorney who hired you 6 for the chlorine gas case? 7 A. It was a plaintiff firm out of 8 Chicago. I don't remember the name. 9 Q. Do you remember the name of the 10 attorney or attorneys who hired you for the carbon 11 monoxide cases? 12 A. I don't remember the name. 13 Q. Now, we've been talking about cases 14 in which you've testified at deposition. Have you 15 also testified at trials? 16 A. I have testified at trials. 17 Q. How many? 18 A. Total of 30. 19 Q. In any of the trials that you 20 testified in, did you ever testify on behalf of a 21 worker who claimed to have sustained injury from 22 chronic exposure to a chemical or toxin? 23 A. No. 24 Q. With respect to the more than 30 25 trials, in all those trials did you testify on 19 1 behalf of the defendant, a defendant? 2 A. No. 3 Q. In which cases did you not testify on 4 behalf of the defendant? 5 A. I know in one of the carbon monoxide 6 cases against General Motors, I testified as a 7 plaintiff expert. 8 Q. Any other cases? 9 A. That's the only one I can think of. 10 Oh, the OSHA -- when I testified as an expert for 11 OSHA, that went to trial. 12 Q. Was that a chronic exposure case? 13 A. No. I think we could call that 14 acute. 15 Q. What was the injury in that one? 16 A. Well, there were several -- he had 17 several incidents in which he was exposed. I know 18 he had a heart attack or arrhythmias one time, and I 19 think on subsequent exposures the arrhythmia was so 20 severe, I believe it killed him. 21 Q. What was the toxin? 22 A. It was a freon solvent. 23 Q. Now, in addition to trials and 24 depositions, have you also consulted where you did 25 not testify? 20 1 A. Yes. 2 Q. Approximately how many consultation 3 matters regarding litigation were there where you 4 did not testify? 5 A. I don't know the number. Just to 6 give you a ballpark figure, probably several 7 hundred. 8 Q. With regard to those matters, those 9 consultation matters, were any of those on behalf of 10 a worker claiming chronic exposure to a toxin and 11 injury? 12 A. Yes. 13 Q. About how many? 14 A. I can think of two. 15 Q. And what did they involve, generally? 16 A. Both were silica exposure cases. 17 Q. Where the claimed injury was 18 silicosis or what? 19 A. Yes. 20 Q. Now, you mentioned that you had a 21 prior beryllium case. Is there only one prior 22 beryllium case that you've been involved with? 23 A. There's only one prior beryllium case 24 where I've testified. 25 Q. Are you currently involved in other 21 1 beryllium cases? 2 A. I have written some reports in some 3 other beryllium cases, but they may have all settled 4 by now. I don't know. 5 Q. Approximately how many beryllium 6 cases have you been engaged as a consultant on? 7 A. I believe somewhere around six or 8 seven. I don't know the exact number. I'm just 9 ballparking it. 10 Q. What was the beryllium case that you 11 testified in? 12 A. The name of the case was -- it was a 13 deposition -- Roberts. 14 Q. Was that a chronic beryllium disease 15 case here in Southern California? 16 A. No. 17 Q. Was it a chronic beryllium disease 18 case? 19 A. Yes. 20 Q. And who engaged you for that case? 21 A. Mr. Nova. 22 Q. In that case did the worker have CBD? 23 A. I believe he did, if I recall. 24 Q. And do you recall where he worked? 25 A. I don't remember the name of the 22 1 company. 2 Q. Was it in California? 3 A. Yes. 4 Q. Was it Ceredyne? 5 A. That sounds familiar. 6 Q. What was nature of the testimony that 7 you gave in that case? 8 A. That was far enough back, I don't 9 remember. I don't remember what I said. I'd have 10 to look at the deposition. 11 Q. Do you have the deposition? 12 A. No. 13 Q. Does your company have the 14 deposition? 15 A. I don't think so. 16 Q. Okay. Do you have any recollection 17 of what you were engaged to testify about in that 18 case? 19 A. I mean, I know often what claims are 20 made, but, you know, I just don't remember what the 21 specific issues were there without seeing the 22 deposition. 23 Q. Well, let me ask some specific 24 questions and see if you recall. In that Roberts 25 case, first of all, was that an occupational case? 23 1 A. Yes. 2 Q. Was Roberts a Mr.? 3 A. Yes. 4 Q. In the Roberts case, did you do a 5 dose assessment? 6 A. My recollection is that there were 7 exposures in excess of 2. 8 Q. That's what you recall about the 9 case? 10 A. I recall that I believe it was clear 11 that he was exposed above the OSHA limit. In fact, 12 I believe his employer had received citations from 13 Cal OSHA for him being exposed over the limit. 14 Q. And was your testimony in that case 15 that the employer was negligent or failed to 16 exercise reasonable care? 17 A. Again, I have to go back to the 18 deposition. I don't remember. 19 Q. In that case, did you evaluate 20 monitoring data? 21 A. I know I saw some monitoring data. 22 Again, without having the deposition, I don't 23 remember exactly what I was asked to do. 24 MR. NOVA: Somebody has been fairly 25 desperately ringing your phone off the hook. I 24 1 don't know if that's meaningful. 2 MR. METZGER: I hear it. I concur. 3 Q. In the Roberts case, were you 4 testifying on behalf of Brush Wellman? 5 A. Yes. 6 Q. And was part of your testimony that 7 Brush Wellman was not responsible for Mr. Roberts' 8 chronic beryllium disease because his employer had 9 not maintained exposure levels below 2 micrograms 10 and had, in fact, been cited by OSHA? 11 A. Again, I'd have to go back to the 12 deposition. I just don't remember the specifics. 13 Q. Now, what other beryllium cases have 14 you been engaged on? 15 A. I was involved in several cases 16 regarding employees of Brush Wellman. 17 Q. And who engaged you on those cases? 18 A. Jeff Ubersax. 19 Q. And Jeff Ubersax is an attorney who 20 represents Brush Wellman? 21 A. Yes. 22 Q. So in these other cases you've also 23 been engaged as a consultant on behalf of 24 Brush Wellman? 25 A. Yes. 25 1 Q. And are these chronic beryllium 2 disease cases? 3 A. Yes. 4 Q. What are the names of those cases? 5 A. Norgard is one. Gamez is another. 6 Those are the names that I remember. 7 Q. Faccio? 8 A. That does not sound familiar. 9 Q. Stucker? 10 A. That doesn't ring a bell. 11 Q. Have you written reports for each of 12 these cases? 13 A. No. 14 Q. For some of them? 15 A. Yes. 16 Q. How many reports have you written? 17 A. I can remember writing two. 18 Q. And what were they about? 19 A. Again, I'd have to have them. I 20 mean, they were about the plaintiff's claim 21 regarding their chronic beryllium disease. 22 Q. Well, you are not a medical doctor. 23 Correct? 24 A. That's correct. 25 Q. What specifically were you asked to 26 1 do in those cases? 2 A. I don't remember the specific issues 3 I was asked to address. 4 Q. When did you write these reports? 5 A. About a year ago, maybe a little 6 less. 7 Q. When did you actually write them? 8 A. That was when I would have written 9 them. I think that's about the time frame. It 10 might have been a little less. 11 Q. Might it have been six months ago? 12 A. It's possible. 13 Q. Can you tell me anything about what 14 these reports were about? 15 A. Some of them were about the state of 16 the art about what was known about beryllium disease 17 at various times, the adequacy of the current OSHA 18 limit for beryllium. 19 Q. What else? 20 A. That's what I remember. 21 Q. Those are the two reports? 22 A. The two reports had some different 23 aspects. One employee was hired fairly late in the 24 game. I mean by that in I think the middle '90s. 25 One report dealt with some other issues because he 27 1 was hired earlier, and I don't remember. So they 2 were different from the standpoint of the different 3 years involved. 4 Q. Who was the employee who was hired in 5 the mid '90s? 6 A. I don't remember the name. 7 Q. It was a Brush Wellman employee -8 A. Yes. 9 Q. -- who developed chronic beryllium 10 disease? 11 A. Yes. At least that was the claim. I 12 didn't evaluate the medical aspects. 13 Q. Well, did you see any medical reports 14 indicating that the worker had chronic beryllium 15 disease? 16 A. My recollection was that he did have 17 chronic beryllium disease. 18 Q. And do you recall what the time 19 period was from commencement of that worker's 20 employment until the diagnosis? 21 A. My recollection is that it was 22 several years. 23 Q. At which plant did this occur? 24 A. The Elmore plant. 25 Q. Did you conclude in that case that 28 1 the Elmore plant had failed to maintain exposures or 2 exposure levels below 2 micrograms? 3 A. I mean, I don't know if we're 4 limiting it to just that report, but I have seen 5 information regarding the sampling data at Elmore, 6 and there had been employees at various times who 7 have been exposed over the 2 microgram limit. 8 Q. At Brush Wellman? 9 A. At Brush Wellman, yes. 10 Q. I see. Was this employee who was 11 hired in the mid 1990s at the Elmore plant exposed 12 above the 2 microgram level? 13 A. I don't remember if there was 14 documentation to show he was or wasn't. I don't 15 remember at this time. 16 Q. Did you visit the Elmore plant -17 A. Yes. 18 Q. -- in connection with these cases? 19 A. Yes. 20 Q. About when was that? 21 A. Let's see. I'm trying to think if it 22 was cold or not. I think it was last winter. It 23 wasn't that cold. It might have been spring. I'm 24 not sure. 25 Q. This past spring? 29 1 A. It's possible. 2 Q. Okay. And did you go to the plant to 3 observe the facilities there? 4 A. We went to the plant, and we did tour 5 work areas where the plaintiffs work. 6 Q. Who is the "we" you're referring to? 7 A. There were some plaintiff experts 8 there, also. 9 Q. Who? 10 A. A Dr. Ellen Becker was one. There 11 was another one. I don't remember his name. 12 Q. Were there any attorneys there? 13 A. Yes. 14 Q. Who? 15 A. There were plaintiff attorneys and a 16 defense attorney. 17 Q. Who was the defense attorney? 18 A. I don't remember his name. 19 Q. Who were the plaintiff attorneys? 20 A. I don't remember their names. 21 Q. And did you observe the workers doing 22 their jobs at Elmore at the time? 23 A. We did see workers in the facility 24 while we were touring the plant. 25 MR. NOVA: Well, wait a minute. Was that 30 1 question did you observe the two in the lawsuits or 2 workers in general? 3 THE WITNESS: This is workers in general. 4 They were no longer working there. 5 BY MR. METZGER: 6 Q. Sure. And in the course of doing 7 this, did you observe any engineering control 8 devices which had been installed in the plant to 9 reduce or to eliminate exposures? 10 A. I definitely saw engineering controls 11 in the plant that were used to reduce employee 12 exposures to beryllium. 13 Q. What type of engineering controls did 14 you see? 15 A. I saw local exhaust ventilation 16 systems and enclosures. 17 Q. What do you mean by "enclosures"? 18 A. That, for example, certain grinding 19 operations that in addition to wet methods and both 20 has an engineering benefit but also an exposure 21 reduction benefit. In addition to local exhaust and 22 wet methods, that there were barriers or shields or 23 enclosures installed to further prevent the emission 24 of particulates. 25 Q. Could you describe what these were 31 1 when you say "barrier" or "shield"? 2 A. I thought I just did. 3 Q. Did these barriers or shields 4 separate the worker doing the grinding from the 5 environment in which the beryllium was being ground? 6 A. Well, if it was a total enclosure, 7 then yes. 8 Q. Were there total enclosures there? 9 A. I've seen total enclosures, yes. 10 Q. I haven't seen one. Can you tell me 11 what that looks like or if there's a particular name 12 for the device? 13 A. It's not a device. It's an 14 enclosure. It's a fabrication fabricated of metal 15 or plexiglass or whatever the pieces are to enclose 16 the process. 17 Q. And is it a separate room? 18 A. What I'm referring to is just 19 something on the piece of equipment that's doing the 20 work. 21 Q. I see. And is that what you meant by 22 "barriers" and "shields"? 23 A. Well, sometimes typically barriers 24 and shields don't mean a total enclosure. It's 25 partial. 32 1 Q. But you saw some enclosures which 2 were on the machines? 3 A. Yes. 4 Q. And those were total enclosures? 5 A. I did see that. 6 Q. Okay. In order for the worker, the 7 grinder, to do his job, does he on occasion have to 8 open the enclosure? 9 A. Yes. 10 Q. Why is that? 11 A. To put the piece in, take the piece 12 out. 13 Q. Any other reason? 14 A. I don't know. If he might be making 15 a measurement or checking, he might stop the 16 operation. 17 Q. Have you seen that? 18 A. Have I seen -- I have seen such 19 operations. I don't remember if I specifically saw 20 that at the Elmore plant. 21 Q. At the Elmore plant while this 22 worker -- while the workers were operating these 23 grinding machines with these barrier shields or 24 enclosures, were they wearing respirators? 25 A. I believe at the last time I was at 33 1 Brush, they were wearing respirators. I am not able 2 now to differentiate all the different processes. 3 We saw a number of different processes. The use of 4 respiratory protection at the Elmore plant has been 5 increased more recently over the past, and I've been 6 to the site several times. There were still some 7 operations that we observed where they were not 8 wearing respirators. It would be difficult for me 9 at this time to remember just where they were and 10 where they weren't. 11 Q. How did the respiratory protection 12 increase over the course of your visits to the Brush 13 Elmore facility? 14 A. Their use was required at operations 15 or in situations or locations currently, where in 16 the past they were not. 17 Q. And what are some of those operations 18 where they were required recently, where they hadn't 19 been earlier? 20 A. As I recall, in some of the primary 21 manufacturing operations, they are required all the 22 time now, where they weren't before. 23 Q. And what are such operations? 24 A. Where they're taking the beryllium 25 hydroxide as it comes into the plant and processing 34 1 it into beryllium metal. 2 Q. Were respirators recently required 3 constantly for grinding operations? 4 A. I do recall still seeing some 5 grinding operations where they didn't require 6 respiratory protection. 7 Q. Were those operations where there 8 were enclosures? 9 A. Again, at this time I cannot 10 definitively -- I did not make an itemized list of 11 just how complete all of them were or just where 12 respirators were or were not used. 13 Q. Were there any changes in the type of 14 respiratory equipment that you saw over the course 15 of your visits to the Elmore plant? 16 A. I seemed to see more use of powered 17 air purifying respirators. I don't recall whether 18 that change was because of a need for increased 19 protection factors or for comfort or just -- at this 20 point I don't remember why they were using them. It 21 also may have been because if you wear a loose 22 fitting PAPR, you don't have to have a quantitative 23 fit test. 24 Q. A PAPR? 25 A. Powered air purifying respirator. 35 1 Q. What is that? 2 A. It's an air purifying respirator that 3 maintains a positive pressure in the face piece. 4 Q. Does that contain an independent air 5 supply? 6 A. No. 7 Q. How does it differ from the 8 traditional cartridge or canister respirators? 9 A. Again, while both have a filter to 10 remove the contaminant from the ambient air, a 11 powered air purifying respirator has a fan 12 downstream from the filter to then create a positive 13 pressure in the face piece, whereas a respirator you 14 typically think of is negative pressure, draws the 15 air through the filter by creating a vacuum in the 16 face piece for ventilation. 17 Q. So this is actually blowing the air 18 out of the face piece? 19 A. It's blowing the air into the face 20 piece. The face piece may be either tight fitting 21 or loose fitting. 22 Q. And the concept is that this prevents 23 particles from penetrating through the filter? 24 A. No. 25 Q. Could you explain what the concept 36 1 is? 2 A. The concept of both types of 3 respirators is to provide a healthful, a 4 noncontaminated breathing air to the employee. 5 Q. Does a powered air purifying 6 respirator do a superior job to the negative 7 pressure respirators? 8 A. There is some debate. It's my belief 9 that they do. 10 Q. Why? 11 A. Because you're creating a positive 12 pressure in the face piece instead of a negative 13 pressure. 14 Q. And what is the effect of that? 15 A. The effect is for a loose fitting, as 16 long as you don't overbreathe, meaning inhale at a 17 rate that is greater than the air supply, if you 18 always maintain a positive pressure in the face 19 piece, you are less likely to -- you'll just get 20 better protection. 21 Q. Why? 22 A. Because if you have a negative 23 pressure respirator and you have a small leak in the 24 seal, you can draw in some contaminated air. But at 25 the moment, even the positive pressure powered air 37 1 purifying respirators, the loose fitting ones, only 2 have a protection factor of 25, and a negative 3 pressure half face piece respirator has a protection 4 factor of 10. 5 Q. And 25 is better than 10? 6 A. Yes. Although most people think it 7 should be 500. 8 Q. Were workers who were doing grinding 9 at Elmore wearing these powered air purifying 10 respirators? 11 A. Again, I don't remember. I didn't 12 correlate exactly where they were wearing 13 respirators, exactly what was going on. I just 14 don't remember now. 15 Q. Okay. Were any of the workers who 16 you observed at the Elmore plant using independent 17 air supply respirators? 18 A. I think I remember seeing one, but 19 I'm not sure. 20 Q. Was that recent? 21 A. It would have been at my last visit. 22 Q. Were any of the workers at the Elmore 23 plant doing their jobs in glove boxes? 24 A. I didn't see any workers using glove 25 boxes. I don't remember now if I saw any glove 38 1 boxes or not. 2 Q. Were any of the workers at that plant 3 doing their jobs in chambers which were isolated 4 from the rest of the area? 5 A. There definitely were areas which 6 were separated from other areas. I mean the answer 7 is there are many areas that are separated from 8 other areas. 9 Q. And what types of operations were 10 physically separated from others? 11 A. Well, I don't remember the specific 12 names now. 13 Q. How many times have you been to the 14 Elmore plant? 15 A. I can think of three times. 16 Q. During what period of time? 17 A. Perhaps the last three, four years. 18 Q. And what were the purposes of your 19 visits? 20 A. The purposes were to learn more about 21 how beryllium is processed and the controls and the 22 programs that are in place to protect workers. 23 Q. When you visited the plant, did you 24 wear any respiratory protection? 25 A. Yes. 39 1 Q. What did you wear? 2 A. I wore a half face piece negative 3 pressure respirator and a powered air purifying 4 respirator. 5 Q. Was that something that you chose to 6 wear yourself, or were you instructed to wear that? 7 A. That was to comply with Brush 8 policies at the time. 9 Q. At the time when you visited these 10 plants, were you working with beryllium at all? 11 A. Was I actually working? When you say 12 "working," was I employed? 13 Q. What I mean is this: At any time 14 during these three visits when you visited the 15 Brush Wellman plant and wore a half face respirator 16 and a powered air purifying respirator, did you 17 actually yourself do any work with beryllium? 18 A. Are you asking me did I do a job that 19 an employee would do? 20 Q. Yes. Actually do some work with 21 beryllium as opposed to inspect. 22 A. Have an employee step aside and say, 23 "Hey, I'm going to do your job for a while"? 24 Q. Not necessarily that, but what I mean 25 is I'm just asking if you did any work yourself with 40 1 beryllium, any operation whatsoever. For example, 2 sometimes some experts might do a job just to see 3 how the process works and what the difficulties 4 are. Did you do anything like that? 5 A. No. I did not actually turn valves 6 or pour molten beryllium metal. No, I did not do 7 that. 8 Q. What would turning the valve do? 9 MR. NOVA: Objection; vague. 10 THE WITNESS: Turning a valve on, say, a 11 pipe would open or close the flow in the pipe. 12 BY MR. METZGER: 13 Q. I see what you mean. 14 Now, who told you that it was 15 Brush Wellman policy that you were to wear the half 16 face respirator and a powered air purifying 17 respirator during your visits to the plant? 18 A. It was an industrial hygienist. 19 Q. Who? 20 A. Mike Kent was one. I don't remember 21 the other. There were three all together that I 22 remember. I don't remember the names of the other 23 two. 24 Q. Was one of them Marc Kolanz? 25 A. No. 41 1 Q. You know Marc? 2 A. Yes. 3 Q. When you were told that you were to 4 wear this respiratory equipment, were you surprised? 5 A. No. 6 MR. NOVA: Objection; vague. 7 BY MR. METZGER: 8 Q. Why were you not surprised? 9 A. Because I was complying with the 10 Brush rules for wearing respiratory protection at 11 the plant. 12 Q. Did you see any written rules? 13 A. There may have been some signs that 14 you must wear respiratory protection in a given 15 area. Yeah, I think there were some signs that I 16 saw. 17 Q. Well, did you see any written 18 instructions or rules or even a contract or 19 something that stated that you had to wear as a 20 visitor the respiratory protection that you 21 described? 22 A. In some of the written materials, 23 employee handouts, I don't think it would probably 24 talk about a visitor. 25 MR. NOVA: Don't speculate. It's a very 42 1 specific question. 2 THE WITNESS: I don't remember now if I saw 3 written materials in program manuals that -- I don't 4 remember. 5 BY MR. METZGER: 6 Q. Did you have to sign any documents 7 before you were allowed into the plant? 8 A. I don't recall signing a document. 9 Q. Was there anything else that you were 10 instructed to wear during the time that you were in 11 the plant? 12 A. Well, on one of the visits I changed 13 clothes. 14 Q. Were you instructed to wear the 15 respiratory protection that you've described, a half 16 face -- what kind of half face respirator? 17 A. Half face piece negative pressure. 18 Q. -- that respirator and the powered 19 air purifying respirator throughout the time that 20 you were in the plant? 21 A. The visit when I was using the half 22 face piece respirator, no. When we were using the 23 PAPR, I also don't believe it was 100 percent of the 24 time when we were in the plant. 25 Q. I was asking you what you were 43 1 instructed. Were you instructed to wear the PAPR 2 throughout the entire time you were in the plant? 3 A. I think I just said not 100 percent 4 of the time. 5 Q. What was the instruction as far as 6 when you should wear that? 7 A. I believe certain outside areas and 8 there might have been certain locations where they 9 said, "You don't have to wear it here." 10 Q. So as you went through the plant, you 11 were told in specific areas that "Well, now you 12 don't have to wear it"? 13 A. Yes. 14 Q. And when you went into an area where 15 you were told that you did not have to wear it, did 16 you actually take it off? 17 A. Yes. 18 Q. Do you know what a biologic safety 19 cabinet is? 20 A. I'm not sure. No. I'm not sure what 21 you mean by that. 22 Q. Well, have you ever heard the term 23 before? 24 A. That specific term, no. 25 Q. Okay. Were there any other types of 44 1 engineering controls or protective equipment that 2 you observed on your most recent trip to Elmore? 3 A. In addition to ventilation, closed 4 system design, isolation, respiratory protection, 5 separate clothing. Those are the main things I 6 remember. 7 Q. When you say "closed system design," 8 are you talking about anything different than what 9 you described earlier as an enclosure around a 10 machine? 11 A. Well, just in the processing 12 equipment at the plant, they attempt to have closed 13 systems wherever possible. 14 Q. What is a closed system? 15 A. A closed system is where you are 16 conducting an operation in an enclosed process so 17 that exposures don't occur. 18 Q. And when you refer to "isolation," 19 what are you referring to? 20 A. That certain processes might be in 21 separate rooms, where employees may or may not have 22 to go into it, limiting access, further reducing the 23 potential for exposure. 24 Q. By "limited access" you mean that 25 only employees who actually do the process are 45 1 allowed in those rooms? 2 A. That would be one aspect, yes. 3 Q. Did you observe that when you were at 4 Elmore? 5 A. Well, in many locations as we walked 6 through, we saw isolated areas with no one in them. 7 Q. I'm sorry. Isolated areas that what? 8 A. With no one in them. 9 Q. What was the significance of that to 10 you? 11 A. There was no one in them. You just 12 asked me. I just said I saw isolated areas with no 13 one in them. 14 Q. Did you see signs which said "Limited 15 access only to workers who do this process," 16 something of that nature? 17 A. I don't remember. 18 Q. Have you visited any other 19 Brush Wellman plants? 20 A. Yes. 21 Q. Which others? 22 A. Tucson. 23 Q. Any others? 24 A. I think that's it. 25 Q. How many trips have you made to 46 1 Tucson? 2 A. One. 3 Q. When was that? 4 A. Maybe about three years ago. 5 Q. And was that regarding a case? 6 A. I don't remember if that was specific 7 to a case or not. 8 Q. What did you do at the Tucson plant? 9 A. I toured it. 10 Q. Incidentally, did you take written 11 notes at the time you were touring these plants? 12 A. I took some, yes. 13 Q. And do you still have those? 14 A. I have some of them. 15 Q. Have you destroyed any? 16 A. I haven't destroyed any. I'm still 17 looking for some of them. 18 Q. When you visited Tucson, the Tucson 19 plant of Brush Wellman, did you observe the same 20 types of engineering controls that you've just 21 described? 22 A. Yes. 23 Q. Did you observe workers wearing the 24 same type of respiratory protection that you've just 25 described? 47 1 A. I certainly remember the half face 2 piece respirators. I don't remember if I saw other 3 types. 4 Q. When you visited Tucson, did you wear 5 a respirator? 6 A. Hmmm, certainly not throughout the 7 plant. Whether I used one for any special area, I 8 don't remember. 9 Q. Were you instructed that you were to 10 wear a respirator in certain areas? 11 A. That's what I don't remember. 12 Q. Now, at Tucson did you see any glove 13 boxes? 14 A. I think I did. 15 Q. What exactly is a glove box? 16 A. A glove box is -- it generally looks 17 like some type of box of varying size, and generally 18 you will have some type of large opening that can 19 close; and when it's closed, it seals the box. Then 20 you have two holes, and in these two holes you have 21 clamped rubber gloves. The employee puts his hands 22 through these holes and into the gloves; so he's 23 able to conduct certain operations inside this box 24 and handle materials and do things. Yet, there is 25 no potential for any airborne contamination in the 48 1 box to get outside. 2 Q. When the worker puts his hands in 3 these gloves, through the hole and into the gloves, 4 is the worker handling beryllium? 5 A. In this particular situation, yes, he 6 would probably be handling a beryllium product. 7 Q. And when the worker is handling the 8 beryllium product using this glove box, is the 9 worker exposed to beryllium? 10 A. No. As long as the glove box is 11 working properly, he would not be. 12 Q. What operations did you see workers 13 doing at Tucson where they were using glove boxes? 14 A. I don't remember the specific 15 operation. 16 Q. Have you ever seen a glove box before 17 you were there at Tucson? 18 A. Yes. 19 Q. For what type of operation? 20 A. I've seen them in industry, abrasive 21 blasting cabinets. That's what I can think of. 22 Q. When you say "cabinets," what do you 23 mean? 24 A. It was a glove box, but it was larger 25 so it could accommodate an abrasive blasting 49 1 operation. 2 Q. But what is a cabinet? 3 A. Well, like I say, I call it a cabinet 4 because it's probably larger than what I think of as 5 a typical glove box size. 6 Q. A larger device that functions like a 7 glove box but you call a cabinet, would that be a 8 biologic safety cabinet? 9 MR. NOVA: I'm going to object. Asked and 10 answered. He already said he doesn't know what a 11 biologic safety cabinet is. 12 BY MR. METZGER: 13 Q. If you know. 14 MR. NOVA: He already said he didn't know. 15 THE WITNESS: I don't know what you mean by 16 a biologic safety cabinet. 17 BY MR. METZGER: 18 Q. Have you ever used the term before? 19 A. No. 20 Q. Okay. All right. 21 A. At least not that I can remember -22 Q. All right. 23 A. -- since I'm not sure what you mean 24 by it. 25 Q. Well, I'm not asking you if you used 50 1 it in the way that I mean. I'm just asking if 2 you've ever used the words "biologic safety cabinet" 3 in your career. 4 A. I can't recall because I'm not sure 5 what that means. 6 Q. Well, did you ever use the words when 7 you didn't know what it means? 8 A. Hopefully not. 9 Q. Okay. Have you ever done any 10 industrial hygiene surveys at hospitals? 11 A. Yes. 12 Q. And in the course of doing industrial 13 hygiene surveys at hospitals, did you ever do any 14 industrial hygiene service where antineoplastic 15 agents are prepared? 16 A. I have not done actual sampling 17 there, but I have observed those hoods. 18 Q. Do you have an understanding that the 19 hoods in which antineoplastic agents are prepared 20 are biologic safety cabinets? 21 A. If you want to call what I saw, the 22 hood where the antineoplastic agents were prepared, 23 a biological safety cabinet, then that's fine. I 24 didn't call it that. 25 Q. What do you call that? 51 1 A. A hood. 2 Q. Have you seen any hoods of the type 3 that you saw in hospitals where antineoplastic 4 agents were being prepared at either the Elmore or 5 Tucson site? 6 A. Yes. 7 Q. At both? 8 A. I believe so. 9 Q. In what operations? 10 A. I don't know. 11 Q. What is your understanding of how 12 such a device functions? 13 A. The device has a limited opening on 14 the front, and air is usually exhausted from the 15 back so that it is continually drawing fresh air 16 through the employee who stands in front of it, 17 through their breathing zone, and then into the hood 18 so that any emissions from any operation inside that 19 hood goes backwards out the exhaust rather than 20 forward into the worker's breathing zone. 21 Q. And the exhaust is exhausted outside 22 of the environment where the worker is working. 23 Correct? 24 A. Well, it probably goes through some 25 type of collector -- 52 1 Q. Right. 2 A. -- before going out into the 3 environment. 4 Q. But it doesn't go back into the room? 5 A. There are cabinets where they may 6 recirculate -- may filter it and recirculate it into 7 the room. I'm not aware of Brush doing that. 8 Q. All right. The ones that you saw at 9 Brush did not go back into the room? 10 A. It looked like the piping was going 11 outside, yes. 12 Q. And when you saw these at the Tucson 13 and Elmore facilities, were workers using them? 14 A. I don't remember now if a worker was 15 standing in front doing it or we just observed it. 16 Q. Now, from your understanding, do 17 these devices prevent worker exposure to beryllium 18 just as the glove boxes do? 19 A. If they're properly designed for the 20 size of the opening and for the operation, then they 21 can be quite effective. From a theoretical 22 standpoint, a glove box, if you had an accidental 23 spill or did something, it should completely prevent 24 any emission. 25 If you were using a hood and 53 1 something happened where you possibly had some 2 accidental situation, emissions could possibly 3 overcome the velocity of the incoming air, and 4 something could get out. So I would say that the 5 glove box has less of a possibility for an 6 accidental exposure; but, again, a hood if probably 7 designed can work very well. 8 MR. NOVA: Can we take a break at an 9 appropriate moment? 10 MR. METZGER: Let's take a break right 11 now. 12 (A recess was taken.) 13 BY MR. METZGER: 14 Q. Dr. Rabinovitz, when is the first 15 time that you ever saw a glove box? 16 A. I can't tell you the first time. 17 Q. Can you estimate the decade? 18 A. I'll estimate '60s or '70s. 19 Q. And when is the first time you ever 20 saw a biologic safety cabinet or the type of hood 21 that you've described where antineoplastic agents 22 are prepared? 23 A. A hood? I guess we can go back to 24 high school. 25 Q. Which would be what decade? 54 1 A. Late '50s, early '60s. 2 Q. All right. In industry have you seen 3 hoods -- strike that. 4 From your training and experience and 5 your reading, have you learned when glove boxes were 6 first available? 7 A. No. I can't say that I've ever made 8 any evaluation of when a glove box was first 9 available. 10 Q. When is the first time that you are 11 aware of that it was available? 12 A. Like I say, in the '60s probably. 13 That's only probably because of my age. I would 14 suspect it goes back further than that. 15 Q. You just don't know? 16 A. I just don't know. 17 Q. Okay. Now, what have you been asked 18 to do in this case? 19 A. I have been asked to look at some 20 materials and to draw some conclusions regarding 21 whether Mr. Gabaldon's employer was a sophisticated 22 employer in the sense that they would have the 23 wherewithal to provide Mr. Gabaldon with a safe 24 working environment. 25 I was also asked to look at whether 55 1 Brush Wellman, as the supplier of some beryllium 2 products, would provide some warnings to 3 Mr. Gabaldon's employer so that it would assist them 4 in their responsibility in providing Mr. Gabaldon 5 with a safe workplace. 6 Q. Anything else? 7 A. That was the general request. 8 Q. Okay. Let me back up a minute and 9 ask you this: Before you were engaged as a 10 consultant for Brush Wellman a few years ago -- was 11 it about three years ago? 12 A. No. It was longer. 13 Q. How long ago? 14 A. I don't know the exact time, but I'll 15 estimate around 1996. 16 Q. Okay. Before 1996, had you done any 17 work regarding beryllium? 18 A. Yes. 19 Q. What? 20 A. When I was with Ford Motor Company as 21 an industrial hygienist, we used beryllium welding 22 tips; so I did industrial hygiene surveys of 23 employees who dressed the tips to determine if they 24 would be exposed to levels of beryllium that would 25 be considered unhealthy. 56 1 Q. And what year was this? 2 A. This would have been somewhere in the 3 mid '70s. 4 Q. And did you write up a report for 5 this? 6 A. Yes. 7 Q. Do you still have that? 8 A. I did take some reports that I wrote 9 when I was with Ford, but I don't remember if I took 10 that one. 11 Q. And what was your conclusion at the 12 time? 13 A. At the time, the concentration was 14 below 2, and it was not something they did all day; 15 so we concluded since while they were working with 16 the beryllium material, they weren't exposed over 2, 17 that their time-weighted average would certainly be 18 below 2 and that that was a protective limit. So we 19 wrote a report saying no changes were required. 20 Q. Who is the "we" you're referring to? 21 A. Well, the industrial hygiene 22 department at Ford. 23 Q. And who were the authors? 24 A. Well, the author was me, but it would 25 have been reviewed by my supervisor. 57 1 Q. Who was that? 2 A. At that time it was Roger Wabeke. 3 Q. And did Mr. Wabeke approve your 4 report? 5 A. Yes. 6 Q. Now, what type of air sampling did 7 you do in this study? 8 A. Personal breathing zone or lapel 9 sample. 10 Q. Over what period of time did you do 11 the sampling? 12 A. It was during the entire operation 13 where he was working with a beryllium-containing 14 material. 15 Q. And that was on one day? 16 A. It was on one day. That's correct. 17 Q. Did you do any area sampling? 18 A. No. 19 Q. Did you do any wipe sampling? 20 A. No. 21 Q. Why did you not do any area sampling 22 for this study? 23 A. Because we were concerned what his 24 exposure was, and the best way to determine his 25 exposure was through a lapel sample. 58 1 Q. Can't you do that through an area 2 sample? 3 MR. NOVA: Objection; vague. 4 THE WITNESS: There are situations where 5 you can take an area sample, and you can use the 6 results of that sampling to accurately determine an 7 employee's exposure and, therefore, determine risk. 8 But there are some situations where taking a 9 personal breathing zone sample is superior. 10 BY MR. METZGER: 11 Q. And you felt in the particular 12 situation you were evaluating, taking a personal 13 breathing zone sample was superior? 14 A. In this particular situation, I felt 15 that that was the easier thing to do that would give 16 me correct results. In general, if you have a 17 choice between the two, in general, you will choose 18 a personal breathing zone sample. 19 Q. And that's because you're actually 20 sampling the air in a one-foot radius of the 21 worker's nose. Right? 22 A. You are sampling the air that the 23 employee is breathing. 24 Q. As opposed to just air in the area? 25 A. As opposed to air in the area. But 59 1 there are situations where measuring the air in the 2 area is also going to tell you what the employee's 3 exposure is. 4 Q. All right. Now, did you do this 5 evaluation on just one day, or did you repeat it 6 periodically? 7 A. Because this was an operation that 8 was going to be done in the identical manner in the 9 identical location under identical environmental 10 conditions, in other words there was not going to be 11 variability from day to day, we believed taking one 12 sample was adequate to predict this employee's 13 day-in and day-out exposure. 14 Q. Throughout his employment at Ford? 15 A. As long as that operation didn't 16 change. 17 Q. Did you follow up to determine 18 whether the operation changed over time? 19 A. Based on our understanding of what it 20 was, there was no reason to suspect it would change; 21 so we did not look at it again. 22 Q. And the "we" is you? 23 A. "We" is the industrial hygiene 24 department. 25 Q. All right. Incidentally, who was it 60 1 at Ford who perceived this potential hazard for 2 which you did this study? 3 A. You're asking me how did we decide we 4 needed to look at this? 5 Q. Right. 6 MR. NOVA: No. He's asking you who. He's 7 asking for the name of a person. 8 BY MR. METZGER: 9 Q. Was it you or Mr. Wabeke? 10 A. I don't remember. 11 Q. All right. Did you consider that the 12 results of your study at Ford were statistically 13 significant? 14 MR. NOVA: Object; vague. 15 THE WITNESS: Again, when you're talking 16 about statistical, I think you're implying looking 17 at a number of data points, and we only took one 18 sample. We believed that one sample was adequate to 19 evaluate this employee's exposure. 20 BY MR. METZGER: 21 Q. Do you believe that today? 22 A. Yes. 23 Q. Okay. So there are circumstances 24 where an employer can take just one sample of a 25 worker who is exposed to beryllium, even though the 61 1 worker is exposed over many years? 2 A. If you have a certain specific 3 criteria that can be met, I would say yes. 4 Q. And what is that criteria? 5 A. The criteria is that the sampling, 6 when you do the sampling, that those conditions are 7 going to be exactly the same all the time. 8 Q. And would that hold true where the 9 worker does the same job day in and day out, using 10 the same equipment? 11 A. Well, when you say "the same job," I 12 think you have to be a little more specific. There 13 can be variations. The same job may include doing 14 some thing one day or some things. But if we're 15 talking about doing the exact same things, not 16 varying either the work load, or, if anything, we 17 sampled under the highest work load. There were 18 times the guy didn't do as much work, but we sampled 19 when he would do the most he would possibly do. 20 So our results represented the worst 21 case situation, and therefore we felt -- and because 22 as I recall -- I don't remember what the exact 23 number was. We may not even have found any 24 beryllium based on the limit of sensitivity of the 25 analytical method -- that we concluded that there 62 1 was no significant risk and didn't have to do 2 anything further to permit this employee to work 3 safely. 4 Q. And this was your conclusion, and, as 5 you recall, you wrote this up in a report that was 6 approved by Mr. Wabeke? 7 A. Now I think it was either by him or 8 by the head of industrial hygiene, Paul Toth. I 9 don't remember who exactly, or it might have been 10 both. 11 Q. What was by them? 12 A. There was a point when Mr. Wabeke was 13 my supervisor. Then he wasn't my supervisor. 14 Q. I understand. Okay. You don't 15 recall specifically whether Mr. Wabeke was your 16 supervisor at the time you prepared this report? 17 A. I can't be sure. He was my 18 supervisor, then he wasn't, then he was again. 19 Q. So what you're saying is he may not 20 have actually reviewed and approved this report that 21 you did? 22 A. I think he did, but it's 23 theoretically possible it might have been in that 24 small window when he wasn't my supervisor. 25 Q. Other than this sampling of air for 63 1 beryllium that you did on this one occasion at Ford, 2 was there any other work throughout your career that 3 you did regarding beryllium? 4 A. I believe there were some other 5 samples I took where we analyzed for beryllium along 6 with other metals. I don't remember the specific 7 situation. I do recall we did not consider 8 beryllium to be likely to be a problem, but we 9 analyzed for it just in case. 10 Q. Where was this? 11 A. I can't remember now. I just 12 remember hitting beryllium as one of the metals we 13 were going to look for. 14 Q. And other than what you've just 15 described, is there any other work that you did 16 regarding beryllium prior to 1996, when you were 17 engaged by Brush Wellman? 18 A. Well, while I was with NIOSH and 19 working on criteria documents and also working on 20 generating respirator recommendations, and I also 21 worked on a NIOSH document where we identified 22 health hazards and some controls and respirator 23 recommendations for all chemicals, and I was in 24 charge of putting together the respirator 25 recommendations so that would have included 64 1 beryllium. 2 Q. How would that have included 3 beryllium? 4 A. Well, this document identified health 5 information on I believe it was OSHA -- either OSHA 6 regulated chemicals or chemicals that were listed in 7 the ACGIH TLVs. It's called "The Pocket Guide to 8 Chemical Hazards" by NIOSH. 9 Q. Did you write that? 10 A. What I indicated was that I was in 11 charge of preparing the respirator recommendations 12 for the chemicals in there, and that would have 13 included beryllium. 14 Q. Did you prepare the respirator 15 recommendations for all of the chemicals listed in 16 "The Pocket Guide"? 17 A. I was in charge of that section. 18 There were other people working at it. There were 19 other people reviewing it. But it was sort of my 20 project. 21 Q. And that was a pocketbook that -- a 22 pocket guide that concerns many chemicals. Correct? 23 A. Yes. 24 Q. Beryllium was just one of the many in 25 the booklet? 65 1 A. That's correct. And also to finish, 2 on some other criteria documents I worked on, while 3 they didn't address beryllium directly because some 4 of them were somewhat general in nature, it might 5 have mentioned beryllium. 6 Q. Did you ever work on the criteria 7 document for beryllium? 8 A. No. 9 Q. Did you ever work on any governmental 10 publication that was specifically a publication 11 regarding beryllium? 12 A. No. 13 Q. Is there any other work that you did 14 regarding beryllium prior to 1996 or thereabouts, 15 when you were engaged by Brush Wellman? 16 A. Not other than what we've talked 17 about. 18 Q. Have you published anything regarding 19 beryllium? 20 A. Again, only to the extent it would be 21 reflected in the NIOSH documents I worked on. 22 Q. Are there any experiments that you've 23 done regarding beryllium? 24 A. No. 25 Q. Have you written any report regarding 66 1 this case? 2 A. No. 3 Q. Do you have notes? 4 A. I have a few notes. 5 Q. Could I see those. 6 MR. NOVA: I think he means those. 7 THE WITNESS: I mean, I made some notes in a 8 document. 9 BY MR. METZGER: 10 Q. Are these the only separate notes 11 that you made that were not on a document that you 12 reviewed? 13 A. And this (indicating). There is -- I 14 had prepared a list of documents I reviewed. I 15 didn't bring that with me because I'm not relying on 16 that list for any of my opinions. 17 Q. That you reviewed for this case? 18 A. Yes. 19 Q. Do you have that list? 20 A. I don't have it with me. 21 MR. METZGER: Can that be provided on 22 Monday, Peter? 23 MR. NOVA: Under what category does that 24 fall? 25 MR. METZGER: Well, he just said that these 67 1 are documents that he reviewed regarding this case. 2 MR. NOVA: Well, my recollection is he's 3 obligated to produce documents that he's relying on 4 to support his opinion. 5 MR. METZGER: Category No. 3 asked for "All 6 documents, including reports and notes, which said 7 expert reviewed or consulted in connection with said 8 expert's retention as a consultant or expert in this 9 matter." 10 MR. NOVA: How does notes that he prepared 11 fall under that category? 12 MR. METZGER: That is exactly what this 13 category is asking. 14 MR. NOVA: I thought you just said that he 15 reviewed or consulted. Did you review or consult 16 your -17 MR. METZGER: This is a list of documents 18 that he has reviewed. Documents -19 MR. NOVA: He created a list. 20 MR. METZGER: Let me ask this question. 21 MR. NOVA: At least I thought that's what he 22 said. 23 BY MR. METZGER: 24 Q. The list is a list of documents that 25 you reviewed regarding this case? 68 1 A. Yes. 2 Q. Are all those documents here? 3 A. No. 4 Q. Why not? 5 A. Because what I brought with me were 6 documents that I relied on in forming my opinions. 7 Q. Do you understand that you were also 8 to bring with you the documents that you reviewed 9 regarding this case? 10 A. It was my understanding that I just 11 had to bring the documents that I was going to use 12 in support of my opinions. 13 MR. METZGER: Mr. Nova, I would like those 14 documents here tomorrow and the list. It's clearly 15 within the scope of the request. I really can't 16 complete this deposition until I've seen what he has 17 reviewed for this case. 18 MR. NOVA: Now is the time for his 19 deposition, not for discussions among counsel. 20 MR. METZGER: All right. Well, I'm making a 21 formal request that they be provided here no later 22 than Monday. Maybe we'll have to continue this 23 deposition until Monday. 24 MR. NOVA: We're not continuing the 25 deposition. You can take that up with Judge Watson. 69 1 As to what position we're going to take on the 2 documents, we can do that later. 3 BY MR. METZGER: 4 Q. Generally speaking, what are the 5 documents that you have reviewed regarding this case 6 that you did not bring with you? 7 A. There were some medical 8 questionnaires that Mr. Gabaldon had filled out. 9 There were some air sampling data, some calibration 10 of equipment. There were -- that's all I can 11 remember now that isn't a part of what I brought 12 with me. 13 Q. Was there any medical toxicology or 14 industrial hygiene literature that you reviewed that 15 you haven't brought with you? 16 A. I mean, I have been looking, and as a 17 practicing industrial hygienist, I review that kind 18 of literature all the time. But there was nothing 19 that I reviewed specific that I think I would need 20 for drawing these conclusions other than just my 21 general knowledge of industrial hygiene. 22 Q. Okay. Have you formed an opinion for 23 each of the two areas that you were asked to consult 24 on? 25 A. Yes. I have formed some conclusions 70 1 based on my review of those aspects I was asked to 2 look at. 3 Q. Have you completed your work in this 4 case? 5 A. To the extent that I have formed 6 opinions in the subject areas I was asked to look 7 at, at this time, yes, unless I'm asked to do other 8 things. 9 Q. Would you tell me what your opinion 10 is regarding the first area. 11 A. The first area regarding whether 12 Rockwell or Boeing or the various names of 13 Mr. Gabaldon's employer, I felt they had enough 14 occupational health -- occupational safety and 15 health sophistication that they were certainly 16 capable of knowing how to provide a safe environment 17 for Mr. Gabaldon to work in. 18 MR. METZGER: Would you read that back, 19 Lyn. 20 (Answer read.) 21 THE WITNESS: And I might add to that the 22 caveat based on the occupational health knowledge 23 for the various time periods in which he worked. 24 BY MR. METZGER: 25 Q. Okay. And what is your second 71 1 opinion? 2 A. My second opinion was that 3 Brush Wellman did provide warning material and, 4 also, information to Mr. Gabaldon's employer to 5 assist them in providing a safe environment for 6 Mr. Gabaldon with regard to working with beryllium. 7 Q. The two pages of notes that you've 8 prepared, these two go together. Correct? 9 A. Yes. 10 MR. METZGER: That will be Exhibit 3. 11 (A copy of the aforementioned 12 document, consisting of two pages, was 13 marked by the court reporter as 14 Plaintiffs' Exhibit+ 3 for identification; 15 attached hereto.) 16 MR. METZGER: And this other page of notes 17 will be Exhibit 4. 18 (A copy of the aforementioned 19 document, consisting of two pages, was 20 marked by the court reporter as 21 Plaintiffs' Exhibit+ 4 for identification; 22 attached hereto.) 23 BY MR. METZGER: 24 Q. All right. May I see the rest of the 25 documents that you have here? 72 1 (Counsel peruses documents) 2 Okay. Let's mark the November 9, 3 1951 letter as Exhibit 5. 4 (A copy of the aforementioned 5 document, consisting of four pages, was 6 marked by the court reporter as 7 Plaintiffs' Exhibit+ 5 for identification; 8 attached hereto.) 9 MR. METZGER: The excerpt from the 10 Kettering Laboratory Report, Page 8 thereof and the 11 title page, will be Exhibit 6. 12 (A copy of the aforementioned 13 document, consisting of two pages, was 14 marked by the court reporter as 15 Plaintiffs' Exhibit+ 6 for identification; 16 attached hereto.) 17 MR. METZGER: The Autonetics "Simplified 18 Industrial Hygiene Controls for Machining Metallic 19 Beryllium" will be Exhibit 7. 20 (A copy of the aforementioned 21 document, consisting of 17 pages, was 22 marked by the court reporter as 23 Plaintiffs' Exhibit+ 7 for identification; 24 attached hereto.) 25 MR. METZGER: The two-page document "At 73 1 Autonetics: An unrelenting war on hazards" will be 2 Exhibit 8. 3 (A copy of the aforementioned 4 document, consisting of two pages, was 5 marked by the court reporter as 6 Plaintiffs' Exhibit+ 8 for identification; 7 attached hereto.) 8 MR. METZGER: The pamphlet or brochure 9 entitled "A Few Facts About Beryllium" will be 10 Exhibit 9. 11 (A copy of the aforementioned 12 document, consisting of eight pages, was 13 marked by the court reporter as 14 Plaintiffs' Exhibit+ 9 for identification; 15 attached hereto.) 16 BY MR. METZGER: 17 Q. You have here the NIOSH criteria 18 document for beryllium. Correct? 19 A. Yes. 20 Q. And you have a sticky on page Roman 21 numeral VI-5. Correct? 22 A. Yes. 23 Q. Is that there for a reason? 24 A. It probably was put there for a 25 reason. Do you want me to read that and try to 74 1 reconstruct why I might have put that there or why 2 it was put there? 3 Q. Yes, please. 4 A. (Witness peruses document.) 5 Okay. It's there because it really 6 talks about that NIOSH says that after 7 consideration, some people have suggested that maybe 8 the 2 standard was not adequate; that they conclude 9 that it was developed in AEC in 1949, and it's still 10 a perfectly good standard, and that's what they're 11 recommending. 12 Q. Other than that, is there anything 13 else in this document that you're relying on for 14 your opinion? 15 A. Anything else? 16 MR. NOVA: Well, Dr. Rabinovitz, that's a 17 100-plus-page document. If you feel you need to 18 read it again, do that. Otherwise, answer his 19 question. 20 THE WITNESS: What is the question again? 21 BY MR. METZGER: 22 Q. Other than the information that you 23 just provided, is there any other information in 24 this document that you are relying on for either of 25 your two opinions in this case? 75 1 A. This document is here mainly to 2 support the adequacy of the 2 microgram per cubic 3 meter standard. I have read part of one page which 4 supports that, but there's other information in here 5 that's probably also useful in supporting it. 6 However, that one page sums it up. 7 Q. Are you relying on this document for 8 anything other than the proposition that the 2 9 microgram standard is adequate? 10 MR. NOVA: Objection; vague, overbroad. 11 THE WITNESS: Again, I have to go through 12 it. There may also be some things in there that 13 help suggest if anyone has claimed that Brush might 14 have attempted to conceal some information. There 15 might be some information to help this suggest that 16 that doesn't sound reasonable. 17 BY MR. METZGER: 18 Q. Do you have an opinion as to whether 19 Brush concealed any information? 20 A. When you are talking about concealing 21 information, perhaps we should be more specific 22 about what information you're talking about. 23 Q. All right. Do you have an opinion as 24 to whether Brush Wellman concealed any information 25 regarding the toxic hazards of beryllium from any of 76 1 its customers? 2 A. In everything I have looked at, I 3 don't see anything where they have attempted to 4 mislead anyone regarding the hazards of working with 5 beryllium. 6 Q. So it's your opinion that 7 Brush Wellman did not conceal anything about the 8 hazards of working with beryllium from anyone. 9 True? 10 A. Let's see. Did not conceal 11 anything -- you used the term "anything" -- that 12 would mislead? I forgot how you phrased it. 13 Q. The court reporter will read it back. 14 A. I'm trying to be specific. 15 Q. The court reporter will read it 16 back. 17 (Question read.) 18 THE WITNESS: That's true. They did not 19 conceal the hazards from working with beryllium from 20 anyone. I have seen no evidence of that. 21 BY MR. METZGER: 22 Q. Have you asked Mr. Nova or anyone 23 from Brush Wellman for the opportunity to review 24 their historical documents so that you could do a 25 full and complete evaluation as to their state of 77 1 knowledge and whether they concealed information? 2 A. I have reviewed many documents over 3 the last about five years and, again, have not come 4 across anything that suggests they were hiding 5 anything that would lead the occupational health 6 community to reach incorrect conclusions regarding 7 the hazards of working with beryllium. 8 Q. I appreciate what you said, but I 9 would like you to answer my question. I'll ask the 10 court reporter to read it back. 11 (Question read.) 12 MR. NOVA: You don't need to assume that you 13 did not answer his question. 14 THE WITNESS: Okay. They provided me -- I 15 mean Brush provided me with a wealth of information, 16 sufficient information that if they had not -- well, 17 it tells a story to the point where I was 18 comfortable that they couldn't have been withholding 19 anything because the material all complements and 20 fits in. And if the information they provided me 21 was real information, and they weren't making things 22 up, then there couldn't be anything else that would 23 be diametrically opposed to that. There just 24 couldn't be. It wouldn't fit with the pattern. I 25 had enough information to tell the story. 78 1 BY MR. METZGER: 2 Q. Okay. Once again, I understand your 3 statement, but I don't think you've actually 4 answered my question. My question was a specific 5 one, and I'll have the court reporter read it back. 6 I asked you a very specific question, which began 7 with "Did you ask." I'd like you to keep that in 8 mind so that when you hear the question, you 9 actually answer it. 10 MR. NOVA: Again, you do not need to assume 11 for one minute that you have not answered his 12 question. If you feel your answer answers the 13 question, then you can say so. 14 (Question reread.) 15 THE WITNESS: Yes. 16 BY MR. METZGER: 17 Q. When did you ask -- well, whom did 18 you ask? 19 A. I don't remember who specifically I 20 asked. As I mentioned, most of the information was 21 provided, but in a specific instance I can recall 22 asking that I wanted to talk to Dr. Preuss directly, 23 to interview him, to get more information. 24 Q. Did you interview Dr. Preuss? 25 A. Yes, I did. 79 1 Q. When was that? 2 A. I think about three years ago, in 3 that neighborhood. 4 Q. Did you interview any other 5 Brush Wellman or former Brush Wellman employees? 6 A. Yes. 7 Q. Who else? 8 A. Michael Kent, Marc Kolanz. There 9 were personnel at both Elmore and in Tucson, 10 including Mr. Phil Wilson. That's what I can 11 remember right now. 12 Q. I was asking you if you asked 13 Mr. Nova or anyone from Brush Wellman for the 14 opportunity to review their historical documents, 15 not to interview people. And with that in mind, I'm 16 going to ask the question one more time. 17 Have you ever asked Mr. Nova or 18 anyone from Brush Wellman for an opportunity to 19 review the historical documents of Brush Wellman, 20 not as preselected and given to you, so that you 21 could make a full and complete evaluation of all of 22 the pertinent documents to determine whether 23 Brush Wellman concealed health hazards of beryllium? 24 A. Yes. 25 Q. Whom did you ask? 80 1 A. I believe Mr. Ubersax. 2 Q. Anyone else? 3 A. That's who I remember at the moment. 4 Q. When did you ask Mr. Ubersax that? 5 A. I'm specifically thinking of one 6 instance where I asked him. I wanted to review air 7 sampling data from the Elmore plant. 8 Q. Did you ask him to review anything 9 other than air sampling data from the Elmore plant? 10 A. That's all I can remember. 11 Q. Dr. Rabinovitz, I'm asking you a 12 specific question, which is: Have you ever asked 13 Mr. Nova or anyone from Brush Wellman or any other 14 attorneys representing Brush Wellman if you could 15 review all of their historical documents so that you 16 could have a complete information base upon which to 17 render an opinion whether Brush Wellman concealed 18 health hazard information regarding beryllium? 19 A. I think I already did answer your 20 question as yes because I asked for specific. What 21 I can't remember is if I ever said, "Is this 22 everything?" I don't remember if I asked that 23 specific question. 24 Q. Okay. And you were provided 25 historical documents? 81 1 A. Yes. 2 Q. Where are those? 3 A. In my office. 4 Q. Why aren't they here? 5 A. Because they are boxes and boxes. 6 It's almost a library now. 7 Q. But you intend to render an opinion 8 at trial in this case that Brush Wellman did not 9 conceal health hazard information from anyone? 10 A. I was asked to render an opinion 11 regarding whether they misled or whether they did 12 not provide adequate warnings. I wasn't asked to 13 talk about whether there was any document or a 14 conspiracy. I mean, I'm just talking about -15 what I was asked to provide an opinion on was 16 whether they provided adequate information to 17 Rockwell or Mr. Gabaldon's employer to permit them 18 to have the ability to provide a safe working 19 environment, and I concluded that they did. 20 Q. Do you have an opinion as to whether 21 Brush Wellman concealed health hazard information 22 regarding beryllium from anyone? 23 A. Again, I told you that -24 MR. NOVA: Objection; asked and answered. 25 BY MR. METZGER: 82 1 Q. Let me rephrase that. Is the opinion 2 that you have that Brush Wellman did not conceal 3 anything about the health hazards of beryllium from 4 anyone based in part on the documents that were 5 provided to you? 6 A. I would have to say that it goes back 7 to all those years, but my conclusions -8 Q. I'm asking you: Was it based on the 9 documents that were provided to you? Yes or no? 10 MR. NOVA: He's not asking you about your 11 opinion, apparently, in this case. He wants to know 12 if you have some other opinions. 13 MR. METZGER: No. 14 Q. I'm asking you if your opinion that 15 Brush Wellman did not conceal any health hazard 16 information regarding beryllium is based in part on 17 the documents that were provided to you which you 18 have not brought here today. 19 A. If you're asking about a separate 20 issue other than what I've been asked to do in this 21 case -22 Q. I'm asking you about what I just 23 asked you. Please answer it. 24 MR. NOVA: Knock it off, Mr. Metzger. 25 If you understand the question, you 83 1 can answer it. If you don't understand it, tell him 2 you don't understand it. 3 THE WITNESS: Okay. If your question is -4 you're asking me in other work I've done with Brush 5 in terms of an evaluation of whether they have ever 6 attempted to hide information, I have relied in part 7 on other documents. 8 BY MR. METZGER: 9 Q. Okay. And are these documents which 10 you have in part relied upon documents which lead 11 you to have the opinion that Brush Wellman did not 12 conceal anything about the health hazards of 13 beryllium from anyone? 14 A. Again, as a general -- I think that's 15 the same question you just asked before. 16 Q. So your answer is "yes"? 17 A. It would be "yes." I believe you 18 asked the same question before. 19 MR. METZGER: Okay. I'd like to see those 20 documents, Mr. Nova -- I'm making a formal 21 request -- as soon as possible. 22 Q. All right. Have you ever been to the 23 Brush Wellman document repository? 24 A. No. 25 Q. Do you know that such a thing exists? 84 1 A. No. 2 Q. Have you heard of it? 3 A. No. 4 Q. As you sit here today, are you 5 unaware that Brush Wellman has collected in one 6 place literally hundreds of boxes of documents, 7 historical documents, which it makes available to 8 attorneys who represent people who have CBD and are 9 suing Brush Wellman for them to review? 10 A. I was not aware of it. 11 Q. And you have never gone through any 12 of those documents in that repository. Correct? 13 MR. NOVA: Objection; asked and answered. 14 THE WITNESS: I'm sure I have probably gone 15 through many of the documents that are in the 16 repository. 17 BY MR. METZGER: 18 Q. But you don't know? 19 A. I just said I'm sure I have. 20 Q. How do you know that? 21 A. Because you just told me that there 22 are all these documents that Brush has, and I've 23 been given many documents by Brush; so it seems 24 rather reasonable that if they've given me these 25 documents, they would have also put it in the 85 1 repository if you're telling me that Brush has all 2 these documents in the repository. 3 Q. Did it ever occur to you that it 4 might be possible that the documents that you were 5 provided by Brush Wellman's attorneys were 6 one-sided? 7 A. Yes. And that is why I gave the 8 response I gave earlier about having read enough 9 information that would permit me to draw my 10 conclusions, recognizing that they may not have 11 given me or there certainly may not be all the 12 documents available. As I told you before, I was 13 able to draw my conclusions because there was a 14 sufficient amount of information that if a document 15 came across that said something totally different 16 than what I was given, then something isn't right. 17 Q. Have Brush Wellman's attorneys told 18 you that a Federal judge has reviewed documents of 19 Brush Wellman and determined that a prima facie case 20 of fraud and concealment exists on the part of 21 Brush Wellman? 22 MR. NOVA: Objection; lacks foundation. 23 THE WITNESS: Number one, I don't even 24 understand all the terms you've used. I don't 25 recall being told of a judge's -- that doesn't sound 86 1 familiar to me. 2 BY MR. METZGER: 3 Q. Assuming at that a Federal judge has 4 determined that sufficient evidence has been 5 presented in a case to indicate fraud and 6 concealment, would you want to see the documents on 7 which that determination was based? 8 MR. NOVA: Objection; vague, lacks 9 foundation. 10 THE WITNESS: I mean, fraud and concealment 11 about what? 12 BY MR. METZGER: 13 Q. The health hazards of beryllium. 14 A. Okay. So you're saying this judge 15 has done an evaluation of what Brush has done and 16 was able to independently conclude from reading 17 materials that Brush hid pertinent information that 18 would be -- that was available that would result in 19 the scientific community not knowing about the 20 health hazards of beryllium? 21 Q. Exactly. 22 A. Exactly. If that were done, yes, I'd 23 be interested in seeing it. 24 MR. NOVA: Is it time for a lunch break? 25 MR. METZGER: Sure. Let's take a lunch 87 1 break. It's 1:00. 2 (Lunch recess at 1:00 p.m.) 3 *** 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 88 1 SATURDAY, OCTOBER 21, 2000, LONG BEACH, CALIFORNIA 2 AFTERNOON SESSION 3 2:05 P.M. 4 *** 5 6 CONTINUED EXAMINATION + 7 BY MR. METZGER: 8 Q. Dr. Rabinovitz, did you take any 9 notes of your interviews of Otto Preuss? 10 A. Yes. 11 Q. Of Mr. Kent? 12 A. Yes. 13 Q. Of Mr. Kolanz? 14 A. Yes. 15 Q. Of Mr. Wilson? 16 A. Yes. 17 Q. Of the other personnel at Elmore and 18 Tucson with whom you spoke? 19 A. That, I don't remember. 20 Q. Do you still have those notes? 21 A. As I've mentioned before, I have some 22 of them. I remember there's one I couldn't find. I 23 hope it's still in the pile of everything and I just 24 haven't found it. But at the moment I don't have 25 all of them, or I can't put my hands on all of them. 89 1 Q. Have you intentionally destroyed any 2 of those notes? 3 A. No. 4 Q. Will you agree to preserve all of 5 those notes until the conclusion of all of the 6 currently pending CBD cases? 7 MR. NOVA: You don't need to make any such 8 agreement. You're here to have your deposition 9 taken on something that has to do with this case. 10 Move on, Mr. Metzger. 11 BY MR. METZGER: 12 Q. Sir? 13 MR. NOVA: Move on, Mr. Metzger. 14 MR. METZGER: I'm asking the question. 15 Q. Will you agree to do that, sir? 16 THE WITNESS: Are you telling me not to 17 answer? 18 + MR. NOVA: Yes. You don't need to answer. 19 That's an issue for the attorneys and the judge. 20 BY MR. METZGER: 21 Q. Are you declining to answer, sir? 22 + A. Yes. 23 Q. Okay. With respect to your first 24 opinion, namely that Mr. Gabaldon's employers had 25 enough occupational safety and health sophistication 90 1 that they were entirely capable of knowing how to 2 provide a safe environment for Mr. Gabaldon to work 3 in, what are the documents on which you're basing 4 that opinion? 5 A. They are contained in here 6 (indicating). Do you want me to start going 7 through? 8 Q. They're all here on the table? 9 A. Yes. 10 Q. Are there any other documents on 11 which you're basing that opinion? 12 A. No. 13 Q. Is there any other information on 14 which you are basing that opinion? 15 A. There is some supplemental 16 information. 17 Q. What is that? 18 A. For example, I mentioned I reviewed 19 some medical questionnaires that Mr. Gabaldon filled 20 out. However, there's information in here 21 (indicating) that indicates that medical exams were 22 given in here and here (indicating). 23 Q. Is there any information other than 24 the fact that medical exams were provided? 25 A. There is some mention of calibration 91 1 of equipment and some ventilation measurements, but, 2 again, there's enough material in here (indicating) 3 talking about the sophistication of the industrial 4 hygienists that I did not have to rely on the other 5 material that's supplemental. 6 Q. Any other information on which you 7 are relying? 8 A. None that I can think of at this 9 time. 10 Q. Due to its bulk, I'm not going to 11 mark as an exhibit to your transcript the NIOSH 12 criteria document from '72. 13 There is this document here which I'm 14 handing you. Is this a document that you're relying 15 on in support of your opinion that Rockwell -- your 16 first opinion that we just discussed? 17 A. No. 18 Q. This document which you just 19 mentioned "No" will be Exhibit 10. 20 (A copy of the aforementioned 21 document, consisting of 41 pages, was 22 marked by the court reporter as 23 Plaintiffs' Exhibit+ 10 for identification; 24 attached hereto.) 25 BY MR. METZGER: 92 1 Q. What I've just marked as Exhibit 10 2 is the document which you identified that you're not 3 relying on for that opinion. True? 4 A. True. 5 Q. Are you relying on this document here 6 (indicating) for that opinion? 7 A. Yes. 8 Q. Okay. It's a three-page letter which 9 will be marked Exhibit 11. Correct? 10 A. Yes. 11 (A copy of the aforementioned 12 document, consisting of three pages, was 13 marked by the court reporter as 14 Plaintiffs' Exhibit+ 11 for identification; 15 attached hereto.) 16 BY MR. METZGER: 17 Q. All right. I'm marking this document 18 Exhibit 12. 19 (A copy of the aforementioned 20 document, consisting of 21 pages, was 21 marked by the court reporter as 22 Plaintiffs' Exhibit+ 12 for identification; 23 attached hereto.) 24 BY MR. METZGER: 25 Q. Are you relying on this document for 93 1 that opinion, a Cabot document? 2 A. Yes. 3 Q. Are you relying on this letter from 4 Howard Van Ordstrand for that opinion? 5 A. Yes. 6 MR. METZGER: The Dr. Van Ordstrand letter 7 will be Exhibit 13. 8 (A copy of the aforementioned 9 document, consisting of five pages, was 10 marked by the court reporter as 11 Plaintiffs' Exhibit+ 13 for identification; 12 attached hereto.) 13 MR. METZGER: I'm marking as Exhibit 14 this 14 "NIOSH Industrial Hygiene Walk-through Survey." 15 (A copy of the aforementioned 16 document, consisting of 24 pages, was 17 marked by the court reporter as 18 Plaintiffs' Exhibit+ 14 for identification; 19 attached hereto.) 20 BY MR. METZGER: 21 Q. Are you relying on that document for 22 your opinion? 23 A. Yes. 24 Q. Are you relying on what I'm marking 25 as Exhibit 15, a "General Process Specification"? 94 1 A. Yes. 2 (A copy of the aforementioned 3 document, consisting of ten pages, was 4 marked by the court reporter as 5 Plaintiffs' Exhibit+ 15 for identification; 6 attached hereto.) 7 BY MR. METZGER: 8 Q. All of this is for your first 9 opinion. Correct? 10 A. In part. I mean, some of the 11 material might be used for other things, too. 12 Q. Right. But all of these documents 13 which you've identified that you're relying upon for 14 the opinion is regarding your opinion regarding 15 Rockwell's sophistication. Correct? 16 A. Yes. 17 (A copy of the aforementioned 18 document, consisting of 21 pages, was 19 marked by the court reporter as 20 Plaintiffs' Exhibit+ 16 for identification; 21 attached hereto.) 22 BY MR. METZGER: 23 Q. Are you relying on Exhibit 16 for 24 that opinion? 25 A. Yes. 95 1 Q. Exhibit 16 is a script for the 2 hearing impaired. 3 (A copy of the aforementioned 4 document, consisting of 12 pages, was 5 marked by the court reporter as 6 Plaintiffs' Exhibit+ 17 for identification; 7 attached hereto.) 8 BY MR. METZGER: 9 Q. Are you relying on these "Health & 10 Safety Aspects of Beryllium, Training Session 11 Attendance" documents, which are collectively marked 12 as Exhibit 17? 13 A. Yes. 14 Q. Are you relying on this Brush Wellman 15 material safety data sheet for that opinion? 16 A. Yes. 17 MR. METZGER: That's Exhibit 18. 18 (A copy of the aforementioned 19 document, consisting of three pages, was 20 marked by the court reporter as 21 Plaintiffs' Exhibit+ 18 for identification; 22 attached hereto.) 23 (A copy of the aforementioned 24 document, consisting of two pages, was 25 marked by the court reporter as 96 1 Plaintiffs' Exhibit+ 19 for identification; 2 attached hereto.) 3 BY MR. METZGER: 4 Q. Are you relying on this Brush Wellman 5 letter, which I've marked as Exhibit 19, for that 6 opinion? 7 A. Yes. 8 (A copy of the aforementioned 9 document, consisting of one page, was 10 marked by the court reporter as 11 Plaintiffs' Exhibit+ 20 for identification; 12 attached hereto.) 13 BY MR. METZGER: 14 Q. Are you relying on this Brush Wellman 15 letter marked as Exhibit 20 for that opinion? 16 A. Yes. 17 (A copy of the aforementioned 18 document, consisting of eight pages, was 19 marked by the court reporter as 20 Plaintiffs' Exhibit+ 21 for identification; 21 attached hereto.) 22 BY MR. METZGER: 23 Q. Are you relying on this exhibit 24 marked 21, "Health Effects of Beryllium and its 25 Components" for that opinion? 97 1 A. No. 2 (A copy of the aforementioned 3 document, consisting of three pages, was 4 marked by the court reporter as 5 Plaintiffs' Exhibit+ 22 for identification; 6 attached hereto.) 7 BY MR. METZGER: 8 Q. Okay. Are you relying on this letter 9 from Mark Axelrod to Brush Wellman, Exhibit 22, for 10 your opinion? 11 A. Yes. 12 (A copy of the aforementioned 13 document, consisting of one page, was 14 marked by the court reporter as 15 Plaintiffs' Exhibit+ 23 for identification; 16 attached hereto.) 17 BY MR. METZGER: 18 Q. Are you relying on this letter dated 19 March 12, 1987, from Brush Wellman, Exhibit 23, for 20 that opinion? 21 A. Yes. 22 (A copy of the aforementioned 23 document, consisting of five pages, was 24 marked by the court reporter as 25 Plaintiffs' Exhibit+ 24 for identification; 98 1 attached hereto.) 2 BY MR. METZGER: 3 Q. Are you relying on these labels 4 collectively marked as Exhibit 24 for that opinion? 5 A. Yes. 6 (A copy of the aforementioned 7 document, consisting of 12 pages, was 8 marked by the court reporter as 9 Plaintiffs' Exhibit+ 25 for identification; 10 attached hereto.) 11 BY MR. METZGER: 12 Q. Are you relying on these air sampling 13 data reports, which are Exhibit 25, for that 14 opinion? 15 A. Yes. 16 (A copy of the aforementioned 17 document, consisting of nine pages, was 18 marked by the court reporter as 19 Plaintiffs' Exhibit+ 26 for identification; 20 attached hereto.) 21 BY MR. METZGER: 22 Q. Are you relying on this excerpt from 23 the "ATSDR Toxicological Profile for Beryllium," 24 Exhibit 26, for that opinion? 25 A. No. 99 1 (A copy of the aforementioned 2 document, consisting of four pages, was 3 marked by the court reporter as 4 Plaintiffs' Exhibit+ 27 for identification; 5 attached hereto.) 6 BY MR. METZGER: 7 Q. Are you relying on this document, 8 Exhibit 27, titled "Statement of Current Knowledge 9 of Chronic Beryllium Disease" for that opinion? 10 A. No. 11 (A copy of the aforementioned 12 document, consisting of 18 pages, was 13 marked by the court reporter as 14 Plaintiffs' Exhibit+ 28 for identification; 15 attached hereto.) 16 BY MR. METZGER: 17 Q. Are you relying on this document, 18 Exhibit 28, entitled "Government Responses to 19 Beryllium Uses and Risks" for that opinion? 20 A. No. 21 Q. Are you relying on the NIOSH criteria 22 document for that opinion? 23 A. No. 24 Q. Are there any other documents that 25 you're relying on for that opinion? 100 1 A. Those were the documents that I'm 2 relying on for the opinion in conjunction with my 3 general knowledge, education as a certified 4 industrial hygienist and toxicologist. 5 Q. Are there any other documents that 6 you're relying on for that opinion? 7 A. Again, to the extent -- I'm not 8 sure. I am using my general knowledge as a 9 certified industrial hygienist and toxicologist, 10 which I've accumulated through practice and from 11 reviewing or looking at many documents over the 12 years. 13 Q. I understand that. Are you relying 14 on any other documents for that opinion? 15 A. No, subject to my statement that I am 16 using my general knowledge. 17 Q. Would you tell me what, in your 18 opinion, Mr. Gabaldon's employers had to do to 19 provide him a safe work environment. 20 A. I think -- do you want to narrow this 21 down to working with beryllium products? 22 Q. Yes. 23 A. Okay. So you're asking me what did 24 his employer -- what was his responsibility 25 regarding Mr. Gabaldon's employment in working with 101 1 beryllium products. 2 Q. No. That's not at all what I'm 3 asking you. I'm not asking you what the 4 responsibility is because the responsibility is a 5 legal question. 6 I'm asking you: What, in your 7 opinion, did Rockwell have to do to provide 8 Mr. Gabaldon a safe environment for him to work with 9 beryllium? 10 A. Okay. What they would have to do is 11 to provide him a work environment where he would not 12 be exposed to levels of beryllium based on the 13 knowledge of the adverse health effects of 14 beryllium, which would cause him to become ill from 15 excessive exposure to beryllium. 16 Q. And what, in your opinion, were they 17 to have done to accomplish that goal? 18 A. They would need to be knowledgeable 19 or find out what the recognized limits were for 20 exposure to beryllium, and then to ensure that the 21 operations would -- he would be able to conduct his 22 operations without having excessive exposure. 23 Q. What do you mean by "excessive 24 exposure"? 25 A. Based on the whole working lifetime 102 1 of Mr. Gabaldon at Rockwell, that limit was and is 2 2 micrograms per cubic meter. 3 Q. So other than complying with the 4 2 microgram per cubic meter standard, is there 5 anything, in your opinion, that Rockwell had to do 6 to provide Mr. Gabaldon a safe workplace in which to 7 work with beryllium? 8 A. Since we're limiting ourselves to -9 I believe your question is limited to prevent -10 what did Rockwell have to do to prevent him from 11 being exposed to what would be considered an 12 excessive level of beryllium, which was 2 micrograms 13 per cubic meter, I believe that was the standard, 14 recognizing levels at that or below, and for many 15 years it was thought that that was too protective, 16 that's what they had to do. 17 Q. That is not at all the what I asked 18 you. Other than complying with the 2 microgram per 19 cubic meter standard, what did Rockwell, in your 20 opinion, have to do to provide Mr. Gabaldon a 21 workplace in which he would not contract chronic 22 beryllium disease? 23 MR. NOVA: That's a different question, now, 24 from the last one. 25 THE WITNESS: Unless this is a trick 103 1 question, it sounds like if they were preventing him 2 from being exposed to a level that would cause 3 chronic beryllium disease, then he wouldn't get 4 chronic beryllium disease; so I think that's all 5 they had to do. 6 BY MR. METZGER: 7 Q. And what is the level at which 8 Mr. Gabaldon could not get chronic beryllium 9 disease? 10 A. Well, the occupational health 11 standard, the occupational health community which 12 had evaluated the hazards of beryllium, set forth 13 the standard of 2 micrograms per cubic meter, which 14 was indicated that if exposures were kept below 15 that, employees would not get CBD. 16 Q. I'm well aware of, that. But my 17 question to you is different, and I'll ask the court 18 reporter to read it back. 19 (Question read.) 20 MR. NOVA: Asked and answered. You already 21 answered that question. 22 THE WITNESS: I think I did answer it. 23 BY MR. METZGER: 24 Q. Okay. Is it your opinion that 25 chronic beryllium disease cannot occur in any 104 1 exposed person below the 2 microgram standard? 2 A. I believe from everything I have read 3 and evaluated, that there is no proof that anyone 4 exposed to less than 2 micrograms per cubic meter 5 can get chronic beryllium disease, yes. 6 Q. Do you believe that there is proof 7 that exposure below 2 micrograms per cubic meter 8 cannot cause chronic beryllium disease? 9 A. Yes. 10 Q. Okay. Are you aware that there were 11 12 secretaries in Brush Wellman plants who got 12 chronic beryllium disease? 13 A. I don't know the number. I do know 14 that there have been cases among some Brush 15 employees who were not production operation 16 employees who did get CBD. 17 Q. Is it your opinion that each of those 18 nonproduction employees, including secretaries, got 19 CBD at exposures in excess of 2 micrograms per cubic 20 meter? 21 A. At this time, based on my analysis, 22 there is no proof that they were never exposed above 23 2. In fact, based on my analysis, I believe there 24 is reason to believe that they were at times exposed 25 above 2. 105 1 Q. But do you have any proof that they 2 were exposed above 2? 3 A. Again, my analysis, which looks at a 4 lot of data in the plant and talks about exposures 5 that occur, especially from accidents and different 6 situations, that I think it can be shown that it is 7 very difficult in a facility like Elmore to always 8 control exposures below 2. And since all of these 9 nonproduction people did go into certain production 10 areas or by production areas, that it's likely over 11 the years that they were exposed over 2 at some 12 point in time. 13 Q. You're referring to your analysis. 14 What analysis is that? 15 A. Analysis of looking at air sampling 16 data from the Brush Wellman Elmore plant. 17 Q. Is this an analysis that you've 18 written up? 19 A. No. 20 Q. What is the data that you're 21 referring to? 22 A. Air sampling data from 23 Brush Wellman. 24 Q. And would you produce that, please. 25 MR. NOVA: In response to what request? 106 1 BY MR. METZGER: 2 Q. Do you have that here today? 3 A. No. 4 Q. Have you compiled this data? 5 A. I have compiled it just looking at 6 it, but I haven't written it down. 7 Q. Is it on computer? 8 A. No. 9 Q. As you sit here today, are you aware 10 of any documents which show that any of these 11 secretaries or other nonproduction employees were 12 actually exposed above 2 micrograms per cubic meter? 13 A. I think I just talked to you about 14 what information I have and how I concluded that 15 they likely were. 16 Q. My question is different, though. Do 17 you have any air sampling data, any personal 18 breathing zone monitoring data, for any of these 19 nonproduction employees who contracted CBD? 20 A. No. I have not seen any breathing 21 zone sampling results on these employees at levels 22 above the limit. 23 Q. Have you seen any personal breathing 24 zone samples on them at all? 25 A. I don't remember now if I saw any 107 1 personal sampling data on nonproduction personnel, 2 but I may have. 3 Q. Have you seen any area sampling 4 monitoring for areas in which any of these 5 nonproduction employees who contracted CBD worked? 6 A. I believe that there is lunchroom 7 exposure data and that these people would have 8 been -- there is a chance they were in that 9 lunchroom. 10 Q. And did the lunch room exposure data 11 that you reviewed show air levels in excess of 2 12 micrograms per cubic meter? 13 A. Offhand, I don't remember seeing any 14 lunchroom data that was in excess of 2. 15 Q. Okay. Is there any sampling 16 documentation for any of these nonproduction 17 employees that actually reported an exposure to them 18 on an eight-hour time-weighted average in excess of 19 2 micrograms per cubic meter? 20 A. I already said I didn't see any full 21 shift breathing zone samples taken of these 22 employees. 23 Q. You are aware that housewives of 24 beryllium workers have contracted chronic beryllium 25 disease. True? 108 1 A. I believe there are some records that 2 there are people who have not worked even in the 3 plant have contracted CBD. I believe there is some 4 information suggesting that beryllium may have been 5 taken home on clothing and washed, or there still 6 may have been some contact with beryllium by these 7 people. 8 Q. My question was: Are you aware that 9 wives, spouses, of beryllium workers have contracted 10 CBD? 11 A. I believe I have heard that, yes. 12 Q. And whom did you hear that from? 13 A. Offhand, I can't remember exactly 14 where I read that or saw it. 15 Q. Do you have any personal breathing 16 zone or area sampling or any monitoring data of any 17 of the wives of beryllium workers who contracted 18 CBD? 19 A. Do I have any sampling data? 20 Q. Have you seen any? 21 A. I haven't. 22 Q. Have you seen any data which reports 23 that any of these wives of beryllium workers were 24 exposed to beryllium above 2 micrograms per cubic 25 meter on an eight-hour time-weighted average? 109 1 A. I have not seen a report that 2 documents exposures over 2 through actual testing. 3 Q. Okay. Have you done any such testing 4 yourself? 5 A. No, I have not. 6 Q. Are you aware that children of 7 beryllium workers have also contracted chronic 8 beryllium disease? 9 A. I don't remember. 10 Q. Have you seen any monitoring data of 11 any children of beryllium workers which reports 12 exposures to them in excess of 2 micrograms per 13 cubic meter? 14 A. I haven't seen that data. 15 Q. Is it your belief or opinion that the 16 spouses of beryllium workers who contracted chronic 17 beryllium disease probably did so because those 18 spouses washed their husbands' clothes? 19 A. That is one source of exposure. 20 Q. Is that, in your opinion, the 21 greatest source of exposure that spouses of 22 beryllium workers would have? 23 A. I don't know. There may have been 24 other mechanisms of exposure. 25 Q. Can you think of any other mechanisms 110 1 of exposure for spouses of beryllium workers that 2 would result in any greater exposure than washing 3 the clothes of beryllium workers? 4 A. Perhaps if there were beryllium on 5 the shoes of the employee, and he got it in the car, 6 and then the wife drove the car and stepped on the 7 carpeting and disturbed it, that's one possibility. 8 Q. Is it your opinion that such an 9 exposure would exceed that from washing a beryllium 10 worker's clothes? 11 A. I have not made an evaluation to 12 attempt to determine the potential exposure from 13 washing clothes versus riding or driving in a 14 contaminated -- a beryllium-contaminated vehicle. 15 Q. Is it your belief that driving in a 16 beryllium-contaminated vehicle would expose an 17 occupant of the vehicle in excess of the 2 microgram 18 standard on an eight-hour time-weighted average? 19 A. Again, I have not made an evaluation, 20 but such a situation is possible. 21 Q. Has Brush Wellman ever warned anyone 22 that they could get chronic beryllium disease from 23 riding in a vehicle which a beryllium worker had 24 occupied? 25 A. I have not seen a written -- anything 111 1 specifically written from Brush advising of that 2 theoretical potential exposure. 3 Q. Have you seen anything from 4 Brush Wellman advising any of its employees or any 5 of its customers' employees that their spouses could 6 get chronic beryllium disease? 7 A. Brush Wellman literature specifically 8 talks about degrees of cleanliness that are 9 necessary to prevent exposure. 10 Q. My question was specific. Have you 11 seen any document from Brush Wellman warning its 12 employees that their spouses could contract chronic 13 beryllium disease if they brought beryllium home on 14 their clothing? 15 A. I have not seen that specific 16 statement. Again, Brush warned to prevent such an 17 occurrence from happening. 18 Q. Have you ever seen any documents from 19 Brush Wellman warning its customers' employees that 20 their spouses could contract chronic beryllium 21 disease if they brought beryllium home on their 22 clothing? 23 A. No. 24 Q. It is your opinion that Brush Wellman 25 is aware of this hazard. True? 112 1 MR. NOVA: Objection; vague. 2 THE WITNESS: Again, Brush Wellman was and 3 is aware of the fact that good hygiene principles 4 are required, and they've specifically trained their 5 employees to reduce exposures that might be caused 6 from contaminated clothing and shoes; so they have 7 specifically specific procedures and warnings for 8 guiding personal hygiene. 9 BY MR. METZGER: 10 Q. I appreciate that, Doctor, but that's 11 not at all what I asked you. Is it your opinion -12 MR. NOVA: Move to strike as not a question. 13 BY MR. METZGER: 14 Q. Is it your opinion that Brush Wellman 15 is aware of the hazard of employees' spouses 16 contracting chronic beryllium disease from domestic 17 contamination of beryllium? 18 A. Brush is aware that if you're exposed 19 in excess of 2, there is a possibility of getting 20 CBD. 21 Q. Once again, that's not what I've 22 asked you. My question is: Is it your opinion that 23 Brush Wellman is aware of the specific hazard of 24 employees' spouses contracting chronic beryllium 25 disease from domestic contamination of beryllium? 113 1 A. It's my opinion that Brush -2 MR. NOVA: He's not asking for an opinion. 3 Do you need to hear the question back? It sounds 4 like a "yes" or "no" question. 5 THE WITNESS: Okay. Could I hear the 6 question again? 7 MR. METZGER: Certainly. The court reporter 8 will read it. 9 (Question read.) 10 MR. NOVA: Sorry. He is asking for an 11 opinion. 12 THE WITNESS: It's my opinion that Brush 13 knew that if sufficient contamination occurred such 14 that the material could be taken off site against 15 all of Brush's procedures and warnings that could 16 result in someone else being exposed at levels 17 exceeding 2 micrograms per cubic meter, that there 18 was a possibility they could contract CBD. 19 BY MR. METZGER: 20 Q. That's getting closer, but my 21 specific question was: Is it your opinion that 22 Brush Wellman was aware that its employees' spouses 23 were at risk of developing chronic beryllium disease 24 if beryllium was transported on the clothing of 25 Brush Wellman's employees to their homes? 114 1 A. I think I answered the question. 2 Q. Were they aware of that? Yes or no? 3 A. I just answered that question. I 4 told you. What I said was -5 Q. I know what you said. 6 MR. NOVA: Are you just going to argue with 7 him now, or are you going to let him finish his 8 answers? 9 THE WITNESS: I was going it to say the 10 same answer. I think I've answered your question. 11 BY MR. METZGER: 12 Q. I would like you to answer the 13 question "yes" or "no" and give an explanation, 14 which I'm entitled to. 15 MR. NOVA: You're not obligated to answer a 16 question "yes" or "no." You answer the question any 17 way you see fit, Dr. Rabinovitz. 18 MR. METZGER: Please read the question 19 back. 20 (Question read.) 21 THE WITNESS: I answered your question. 22 BY MR. METZGER: 23 Q. Yes or no? 24 MR. NOVA: He already answered your 25 question. Argumentative. 115 1 THE WITNESS: I answered -- 2 MR. NOVA: You don't need to say anything 3 more. The question is argumentative. 4 BY MR. METZGER: 5 Q. Dr. Rabinovitz, was Brush Wellman 6 aware of that or not? 7+ MR. NOVA: Argumentative. You don't need to 8 answer. You've already answered the question. 9 MR. METZGER: Mr. Nova, you have no 10 authority to instruct an expert not to answer a 11 question. 12 Q. I insist that you answer it, sir. 13 MR. NOVA: Should we terminate the 14 deposition right now? 15 MR. METZGER: If you want to terminate the 16 deposition, that is your choice. I'm not finished. 17 MR. NOVA: The witness is not answering the 18 question. It's argumentative. He's already 19 answered the question. 20 BY MR. METZGER: 21 Q. Are you refusing to answer the 22 question, Dr. Rabinovitz? 23 + A. I answered the question. 24 Q. We'll have a judge determine that. 25 Mark that, please. 116 1 MR. NOVA: Move to strike as not a 2 question. 3 BY MR. METZGER: 4 Q. You are aware, are you not, that 5 residents of the community of Lorain, Ohio, living 6 within three-quarters of a mile of the Lorain, Ohio, 7 Brush Wellman plant contracted chronic beryllium 8 disease. True? 9 A. I am aware that residents -10 MR. NOVA: Dr. Rabinovitz, the question is: 11 Are you aware? True? Do you understand that? Do 12 you need to hear it back? 13 THE WITNESS: My understanding of the 14 question is am I aware that there are some residents 15 living in Lorain, Ohio, within a three-quarter-mile 16 radius of the plant who did contract CBD, and the 17 answer is yes. 18 BY MR. METZGER: 19 Q. Okay. And are you aware that 20 Merril Eisenbud concluded that among these 21 residents, there were residents who contracted the 22 disease from ambient air exposures rather than 23 domestic transport? 24 A. I am aware in his evaluation he may 25 not have fully comprehended all the exposures and 117 1 the way the exposures may have occurred and 2 attempted to correlate ambient air sampling levels 3 to locations of where people got CBD. 4 MR. METZGER: Can I have the question and 5 the answer read back. 6 (Record read.) 7 BY MR. METZGER: 8 Q. All right. I'm not asking you for 9 your opinion of his -- your critique of his study. 10 I'm simply asking you: Are you aware that 11 Dr. Eisenbud concluded that some of these residents 12 contracted CBD from ambient air exposure as opposed 13 to domestic transport? 14 A. Yes, I think he did do that. 15 Q. And do you disagree with his 16 conclusion? 17 A. Yes. 18 Q. Have you undertaken any independent 19 studies yourself to disprove Dr. Eisenbud's 20 conclusion? 21 A. I have read his evaluation and came 22 to the conclusion that he may not have considered 23 all the factors that were involved, and this is 24 substantiated in other documents such as the NIOSH 25 criteria document. 118 1 Q. My question is: Did you yourself 2 conduct any independent studies to refute 3 Dr. Eisenbud's conclusion? 4 A. If you're talking about did I 5 conduct -- did I contaminate an ambient environment 6 with different levels of beryllium and then attempt 7 to measure incidence of disease, no. 8 Q. Okay. Did you do any other 9 independent studies? 10 A. My independent study was an 11 evaluation of his work. 12 Q. Did you do anything other than 13 evaluating Dr. Eisenbud's work in reaching a 14 contrary conclusion? 15 A. If you're talking about did I do any 16 independent epidemiology or air sampling studies, 17 no, I did not. 18 Q. Did you do any other experimental 19 studies? 20 A. No. 21 Q. Did you interview any of the 22 residents? 23 A. You mean the people who lived in the 24 area around the plant, did I go and interview them? 25 Q. Yes. 119 1 A. No, I did not. 2 Q. Did you take chest X-rays of any of 3 them? 4 A. No. I did not go out and take chest 5 X-rays. 6 Q. Have you ever monitored beryllium 7 levels in the vicinity of any beryllium plant? 8 A. No, I have not. 9 Q. Do you have any documentary proof 10 that any of the residents who lived within 11 three-quarters of a mile of the Lorain, Ohio, plant 12 who developed chronic beryllium disease did not 13 contract that disease from ambient exposure? 14 A. There were other people who have done 15 evaluations to identify that there might be some 16 contact exposure, and I don't at the moment have 17 those references, but I know I have seen them. 18 Q. And are you relying on those 19 references for your opinions in this case? 20 A. I am relying on other materials that 21 I have read that went into an evaluation of the 22 neighborhood cases. 23 Q. What materials? 24 A. As I mentioned, offhand I don't 25 remember them. 120 1 Q. But you have them? 2 A. Yes. I've read it. 3 Q. They're at home? 4 A. They're there someplace, yes. 5 Q. You haven't brought them today? 6 A. No, I haven't. 7 Q. Okay. What medical studies are you 8 relying on for your opinion that beryllium cannot 9 cause chronic beryllium disease at exposures less 10 than 2 micrograms per cubic meter on an eight-hour 11 time-weighted-average basis? 12 A. One is the NIOSH criteria document. 13 Q. Excuse me for interrupting. By 14 "medical study," I don't mean a reviewed document. 15 I mean a primary source document. 16 MR. NOVA: Do you understand the question? 17 THE WITNESS: Rather than someone who's 18 reviewed other. So this would have to be an 19 original epidemiology study? 20 BY MR. METZGER: 21 Q. An epidemiologic study, a case 22 report, some experimental study, something merely 23 which is more than just reviewing other people's 24 work. 25 A. Well, all of it is reviewing what 121 1 other people have done. I mean, I've done no 2 independent verification. 3 Q. I realize that. What I'm asking you 4 is: What original or primary studies are you 5 relying on which, in your opinion, prove that 6 chronic beryllium disease cannot occur in anyone 7 below 2 micrograms per cubic meter? 8 A. There is the Brush -- let's see. 9 When the standard was implemented at Brush and after 10 the Lorain fire, and they rebuilt, in fact it was 11 after Elmore had come into being and after some 12 initial work where they were able to start achieving 13 the compliance with the 2 microgram per cubic meter, 14 they had an approximate 20-year history of not 15 seeing any CBD cases. 16 In the Rockwell facility itself where 17 Mr. Gabaldon worked, where exposures were controlled 18 below 2, they did not see any CBD cases. 19 In Cardiff, where they carefully 20 controlled exposures to below the limit, they did 21 not see CBD cases. So there are primary studies and 22 experience by plant populations which showed that 23 where they were essentially either coming close to 24 achieving the limit or actually achieving the limit, 25 they did not see CBD. 122 1 In addition, there was a panel of 2 scientists that was gathered after the AEC set the 3 limit who reviewed the data from year to year to see 4 if that standard was protective. They concluded not 5 only -- that it was not only protective but likely 6 excessively low. And so there is that history that 7 shows that the 2 standard was protective, and 8 there's been no data that I have seen to show where 9 people have gotten CBD at levels below 2. 10 Q. Are you aware of any data postdating 11 this 20-year history that you've described which 12 casts doubt upon the absence of disease during that 13 period? 14 A. If we're talking about the 20-year 15 history at the Brush Wellman facility, subsequent to 16 that time period, there were some cases of CBD that 17 developed. And by the way, during that 20-year 18 period, there were a few CBD cases among employees 19 who were employed after 1960, but a review showed 20 that they were clearly exposed well above the 2 21 standard through accidents, or through some other 22 evaluation they showed that they were exposed above 23 2. 24 Q. Have you seen that document? 25 MR. NOVA: Are you finished with your 123 1 answer? 2 THE WITNESS: That was to finish my last 3 answer, that I think they had said there was a 4 20-year history with no CBD cases, and I wanted to 5 correct that. 6 BY MR. METZGER: 7 Q. All right. 8 A. Then there was a subsequent question 9 asking about am I aware that there were CBD cases 10 following that 20-year period, other than the few 11 CBD cases where there was explained overexposure 12 that there were some additional cases, and the 13 answer is yes, but a review of those cases also 14 shows a likelihood of exposure over 2. 15 Q. This review that you're referring to, 16 have you seen the documentation for that review? 17 A. I have seen some documentation, yes. 18 Q. Have you seen any air sampling data, 19 personal breathing zone data, for any of these 20 workers who developed chronic beryllium disease 21 during this 20-year period of little disease? 22 A. Are you asking did I see 23 documentation of what again? 24 Q. You mentioned that there was an 25 approximately 20-year period where there were a few 124 1 cases of chronic beryllium disease in Brush Wellman 2 plants. Correct? 3 A. Correct. 4 Q. Have you seen any personal breathing 5 zone data for any of those workers who did get 6 chronic beryllium disease during this period? 7 A. No. These people had accidental high 8 exposures, and so it wouldn't have been possible to 9 measure. In one case I believe there was -- I 10 forget exactly what the situation was, but it was a 11 very high exposure. 12 Q. You've answered my question. Have 13 you seen any personal breathing zone data for any 14 Brush Wellman employee who has contracted chronic 15 beryllium disease? 16 A. I have seen a -- Phil Wilson did a 17 review of CBD cases and identified some exposure 18 patterns. I have seen that. 19 Q. That's not what I asked you, though. 20 Have you seen any personal breathing zone data for 21 any Brush Wellman employee who contracted chronic 22 beryllium disease? 23 A. I may have. I've looked at a lot of 24 Brush Wellman exposure monitoring data. I don't 25 remember if I've seen data specific to some of these 125 1 employees. 2 Q. Well, you've rendered an opinion 3 today, Dr. Rabinovitz, that chronic beryllium 4 disease cannot occur below 2 micrograms. Can you 5 identify any sampling data for any person who has 6 contracted chronic beryllium disease where the data 7 shows that person was exposed in excess of 2 8 micrograms? 9 A. I would have to review the analyses 10 done on these people, whether there was specific air 11 sampling data of these employees showing excessive 12 exposures or whether an evaluation of their 13 situations would identify excessive exposures or 14 whether there were accidental exposures that could 15 not have been measured but would show excessive 16 exposures. So at this point I can't tell you 17 exactly whether there was specific air sampling data 18 on each employee. I know there were evaluations 19 done. 20 Q. Okay. Are you aware of any original 21 medical studies, epidemiologic studies or case 22 reports, in which the authors asserted that the 23 worker or workers contracted chronic beryllium 24 disease below the 2 microgram standard? 25 A. There are some articles looking at 126 1 some data patterns suggesting that that may be true. 2 Q. I'm not asking you about 3 suggestions. I'm asking you: Have you read any 4 case reports or epidemiologic studies in which the 5 authors asserted that the worker or workers 6 contracted chronic beryllium disease below 2 7 micrograms? 8 A. I'm aware that there are articles 9 that have been written. To be honest, without 10 refreshing myself, I don't remember the degree of 11 certainty they put into their conclusions regarding 12 the possibility of contracting CBD below 2 13 micrograms. 14 Q. Okay. Would you please identify all 15 case reports or epidemiologic studies that you are 16 aware of in which the authors have either asserted 17 that the workers contracted chronic beryllium 18 disease below the standard or suggested such? 19 A. You want me to give you the names? 20 Q. Yes. 21 A. Kay Kreiss and I think Lee Newman. 22 Q. Any others? 23 A. That's what I can think of at the 24 moment. 25 Q. What Kay Kreiss article? 127 1 A. I don't remember the name of it. 2 Q. Do you have it? 3 A. Yes, I do have it. 4 Q. At home? 5 A. Yes. 6 Q. You haven't brought it with you 7 today? 8 A. No. 9 Q. One Kay Kreiss article? 10 A. I don't know. I have to look through 11 my file and see. 12 Q. And what is the Lee Newman article? 13 A. I don't remember the name of it. 14 Q. Are there any other articles that you 15 are aware of that fall into this category? 16 A. Again, I'd have to review my file to 17 refresh my memory. 18 Q. Are you familiar with the current 19 prevalence data for any of the Brush Wellman plants? 20 A. You're asking me about regarding the 21 incidence of CBD at the plant? 22 Q. Well, I believe it's actually 23 prevalence data rather than incidence data. But are 24 you aware of any data, be it prevalence or incidence 25 data, regarding CBD at Brush Wellman plants? 128 1 A. At the moment, I haven't seen the 2 latest data that they have. 3 Q. Have you seen any incidence or 4 prevalence data of Brush Wellman for CBD at any of 5 its plants? 6 A. At any time? 7 Q. Any time within the last decade. 8 A. I may have. I don't remember now. 9 Q. Is it your belief that during of the 10 last decade Brush Wellman has violated the standard 11 at every one of its plants? 12 MR. NOVA: Objection; vague. 13 THE WITNESS: I have only looked at data 14 from two plants, Tucson and Elmore. And you are 15 asking me have employees at those plants in the last 16 decade been exposed -- some employees at some times 17 been exposed to TWAs over 2? The answer is yes. 18 BY MR. METZGER: 19 Q. Which employees? 20 A. I don't know their names. 21 Q. Have you seen personal breathing zone 22 data for these two employees? 23 A. Which two employees? 24 Q. I'm sorry. How many employees were 25 exposed in excess of 2 micrograms? 129 1 A. I didn't calculate a number. 2 Q. Calculate? 3 MR. NOVA: Wait for a question. 4 BY MR. METZGER: 5 Q. Okay. For how many Brush Wellman 6 employees have you seen personal breathing zone data 7 documenting an exposure in excess of 2 micrograms? 8 A. I don't know the number. 9 Q. Do you know that you've actually seen 10 a personal breathing zone sample for a Brush Wellman 11 employee documenting an exposure in excess of 2 12 micrograms? 13 A. Yes. 14 Q. Can you estimate for me the number of 15 such records you've seen? 16 A. No. You mean all records that I've 17 seen? 18 Q. Not all records. I'm asking you the 19 number of personal breathing zone sample records 20 that you have seen which report an eight-hour 21 time-weighted-average exposure in excess of 2 22 micrograms. 23 A. I don't know that number. 24 Q. But you believe you have seen some 25 such records? 130 1 A. I know I've seen such records. 2 Q. Which actually report -3 MR. NOVA: Object. Go ahead, and then I'll 4 object. 5 BY MR. METZGER: 6 Q. Which actually report an exposure 7 above 2 micrograms in the personal breathing zone of 8 a worker who was sampled for eight hours or more? 9 A. Yes. 10 Q. What Rockwell facility are you aware 11 of which has had no chronic beryllium disease? 12 A. Mr. Gabaldon's employer. My 13 understanding is that for those employees hired -- I 14 don't remember the exact time period. But after 15 some time in the early '60s or mid '60s -- I'm not 16 sure of the exact time frame -- that they haven't 17 had any CBD cases up until -- yeah. 18 Q. Up until what? 19 A. I was going to say that 20 Mr. Gabaldon's case was identified very fairly 21 recently, but he was actually an employee who was 22 hired in the late '50s. 23 Q. Does this lead you to believe that 24 Rockwell has implemented a superior industrial 25 hygiene program for beryllium workers that is 131 1 superior to Brush Wellman's? 2 A. It is like comparing apples to 3 oranges to compare Brush Wellman's activities with 4 beryllium with Rockwell's activities with beryllium. 5 Q. Is it your opinion that Rockwell has 6 achieved a better occupational health record for 7 chronic beryllium disease than Brush Wellman? 8 A. Well, if you look at the -- if you're 9 going to judge that by the number of cases of CBD, 10 there are less cases reported by Rockwell than 11 Brush. 12 Q. You mentioned Cardiff. Have there 13 been CBD cases at Cardiff? 14 A. I'm not sure if there have been any, 15 but I know there either were none or almost none. 16 Q. How long has the Cardiff facility 17 been in existence? 18 A. I don't remember when it started. 19 Q. What is the range of latency for the 20 development of CBD? 21 A. It can have a very long latency 22 period, many years. 23 Q. How many? 24 A. Well, I mean, it would not be unusual 25 to be over 20 years. 132 1 Q. Could it be over 30 years? 2 A. I suppose it could. 3 Q. Let me rephrase that because anything 4 is possible. Is it your opinion to a reasonable 5 degree of scientific probability that the upper end 6 of the latency range period for chronic beryllium 7 disease is more than 30 years? 8 A. I don't really know what the upper 9 range is. But if the upper range is sufficiently 10 high, it may almost not matter. I mean, if the 11 upper range were a lifetime, then it really wouldn't 12 matter if you got it if you -- if it took 70 or 80 13 years to get it. I don't know what the upper limit 14 is when you could possibly get it. 15 Q. Do you know what the lower limit is? 16 A. Well, based on some of the experience 17 that I've seen at Brush, it appears it could be a 18 few years. 19 Q. Are you aware of any literature 20 reporting a shorter latency period for CBD than a 21 few years? 22 A. I can't think of any offhand. 23 Q. Are you aware of any literature 24 reporting a longer period, latent period, for CBD 25 than 30 years? 133 1 A. I can't recall any. 2 Q. Okay. 3 A. Although I guess Mr. Gabaldon may 4 very well -- it's possible it's over 30 years. 5 Q. Have you seen any documentation that 6 Brush Wellman has ever communicated to any of its 7 customers that they should be having any of their 8 employees work in glove boxes? 9 A. Offhand, I don't remember Brush 10 specifically identifying the use of glove boxes to 11 their customers. 12 Q. You have reviewed documentation that 13 Brush has provided to its customers. True? 14 A. I have, yes. 15 Q. And in any of that documentation, did 16 you see any indication that Brush told its customers 17 that for certain applications, they should be using 18 hoods or biologic safety cabinets? 19 A. I'd have to look at the literature 20 again to talk about what they talked about in terms 21 of precautions. 22 Q. And is that literature here? 23 A. I think it might be. I'd have to 24 look through it. 25 Q. I'm putting all the exhibits before 134 1 you. 2 A. (Witness peruses document.) 3 These documents, while they don't 4 identify specific engineering controls, it does warn 5 to prevent the inhalation of beryllium; therefore, 6 leaving it to the user how to best implement the 7 warning again that controls are needed. 8 Q. Dr. Rabinovitz, I've read these 9 documents. I know what they say. I'm asking the 10 specific question: Can you identify for me any 11 Brush Wellman document which tells its customers 12 that for certain applications they should have their 13 employees working in glove boxes or hoods or 14 biologic safety cabinets? 15 A. I don't remember if they got down to 16 that level of specificity. 17 Q. Do you have an opinion as to whether 18 Brush Wellman should be providing its customers the 19 specific engineering controls that Brush Wellman is 20 using for the very applications that their customers 21 engage in? 22 A. Do I have an opinion? 23 Q. Yes. 24 A. I do have an opinion. 25 Q. And what is your opinion? 135 1 A. My opinion is that they should 2 provide the warnings regarding ensuring that anyone 3 using their products are not exposed to levels in 4 excess of the recognized standard, 2 micrograms per 5 cubic meter. However, the implementation of that 6 should -- is probably best left to the user because 7 Brush may not always know or have control over how 8 its customers are using their products. 9 Brush has made available to their 10 customers that if they request any information 11 regarding how to implement Brush's warnings and 12 recommendations to prevent -- warning their 13 customers not to have their employees exposed over 14 the limit, they have provided guidance, and there 15 are letters here written from Brush to Rockwell 16 giving them guidance on how to protect their 17 employees. 18 Q. If Brush Wellman has determined that 19 glove boxes are necessary to protect its own workers 20 who do milling or grinding, should Brush Wellman, in 21 your opinion, be communicating to its customers that 22 their employees who do milling or grinding should be 23 doing such in glove boxes? 24 MR. NOVA: Objection; lacks foundation, 25 incomplete hypothetical. 136 1 THE WITNESS: Again, there are many 2 different operations that occur, both within Brush 3 and in their customers. It is not always clear that 4 Brush could have the knowledge to know that their 5 customers are doing exactly the same things in the 6 same size, the same ventilation. There are many 7 variables. 8 So I believe Brush correctly warned 9 their customers of what end result must be 10 achieved. They would provide guidance if asked, but 11 there are different ways in different situations. 12 Compliance can best be achieved in different 13 situations in different ways. So in terms of 14 printed material being sent with the product, you 15 can't be too specific. 16 Again, they warned of what end -17 good end result must be achieved and provided some 18 general guidance. I think that is OSHA's 19 requirement in providing warnings, and Brush 20 complied with that and complied with that before the 21 OSHA Hazard Communication Standard was in effect. 22 BY MR. METZGER: 23 Q. Okay. You've mentioned that 24 Mr. Gabaldon's employers had enough safety and 25 occupational health sophistication to provide 137 1 Mr. Gabaldon a safe environment. Is it your 2 opinion -- strike that. 3 Between Brush Wellman and Rockwell, 4 which, in your opinion, has greater sophistication 5 regarding -- strike that. 6 As between Rockwell and 7 Brush Wellman, which has greater occupational safety 8 and health sophistication as it relates to 9 beryllium? 10 MR. NOVA: Objection; vague, overbroad. 11 THE WITNESS: The first thing we're dealing 12 with is two entirely different plant situations of 13 what is done with beryllium. Brush Wellman does 14 things with beryllium that Rockwell doesn't. There 15 are some specific potentials for hazardous exposure 16 at Brush that never existed at Rockwell, you know; 17 so you can't answer that question without providing 18 a lot more specifications, you know. 19 BY MR. METZGER: 20 Q. Let me ask you this question: Is 21 there anything that you believe Rockwell knows about 22 the occupational safety and health of beryllium that 23 is not known to Brush Wellman? 24 MR. NOVA: Objection; vague, overbroad. 25 THE WITNESS: Did Rockwell know something 138 1 about the hazards of beryllium that Brush didn't? 2 BY MR. METZGER: 3 Q. Yes. 4 A. I don't know. 5 Q. Did Brush Wellman know something 6 about the hazards of beryllium that Rockwell 7 didn't? 8 MR. NOVA: Objection; vague, overbroad. 9 THE WITNESS: I don't know the answer to 10 that either. Actually, I need a bathroom break. 11 MR. METZGER: We'll take a break. 12 (A recess was taken.) 13 BY MR. METZGER: 14 Q. Dr. Rabinovitz, do you have any 15 information which would lead you to conclude that if 16 Brush Wellman told Rockwell that beryllium grinders 17 needed to work in a glove box, that Rockwell would 18 not install glove boxes at Mr. Gabaldon's place of 19 employment? 20 A. Say that again. 21 Q. The court reporter will read it 22 back. 23 (Question read.) 24 THE WITNESS: Do I have reason to believe if 25 Brush had told Rockwell to install glove boxes, that 139 1 Rockwell would not have installed glove boxes? I 2 don't know. 3 BY MR. METZGER: 4 Q. Okay. As you sit here today, is it 5 your belief that Rockwell knows that glove boxes 6 need to be used by its beryllium grinders? 7 MR. NOVA: Objection; vague, lacks 8 foundation, calls for speculation. 9 THE WITNESS: What Rockwell had to do was 10 ensure that employees were not exposed. It's 11 certainly not clear to me that they needed to use 12 glove boxes. 13 BY MR. METZGER: 14 Q. I would like you to assume for this 15 question that in order to protect a beryllium 16 grinder from developing chronic beryllium disease, 17 glove boxes are needed. 18 MR. NOVA: You just wait for a question. 19 That's not a question. 20 BY MR. METZGER: 21 Q. Do you have any information that 22 Rockwell knows that glove boxes are needed for its 23 beryllium grinders? 24 MR. NOVA: Objection; incomplete 25 hypothetical, lacks foundation. 140 1 THE WITNESS: You're asking me to assume a 2 hypothetical. That hypothetical is that it's not 3 possible to grind beryllium without a glove box and 4 have exposures below 2 micrograms per cubic meter. 5 BY MR. METZGER: 6 Q. No. That's not it at all. I'm 7 asking you to assume that chronic beryllium disease 8 can and does occur below 2 micrograms. 9 A. Okay. 10 MR. NOVA: Wait for a question, please. 11 Wait, Dr. Rabinovitz. 12 THE WITNESS: Okay. 13 MR. NOVA: All this chatter is not 14 questions. That's going to be a problem on the 15 record. 16 BY MR. METZGER: 17 Q. I'm asking you to assume that chronic 18 beryllium disease can and does occur below the 2 19 microgram standard. I'm asking you to further 20 assume that in order to prevent the occurrence of 21 CBD in beryllium grinders, they need to be using 22 glove boxes. 23 Do you have any information that 24 Mr. Gabaldon's employers at any time knew that they 25 had to be giving Mr. Gabaldon a glove box to work 141 1 in. 2 MR. NOVA: Objection; lacks foundation, 3 incomplete hypothetical, and unintelligible. 4 THE WITNESS: First of all, Rockwell didn't 5 know in your hypothetical that employees could get 6 CBD below 2 micrograms per cubic meter. Therefore, 7 they would not know that you can't protect in your 8 hypothetical an employee unless he used a glove 9 box. So since Rockwell doesn't know any of these 10 hypotheticals, why would you expect them to think 11 they had to have a glove box? 12 BY MR. METZGER: 13 Q. Perhaps because Brush Wellman should 14 have told them that. 15 MR. NOVA: Just wait for a question. Move 16 to strike as not a question. 17 MR. METZGER: There was a question. He 18 asked it, so I answered it. 19 Q. All right. Do you have an opinion as 20 to whether the warning material that you've referred 21 to that Brush Wellman provided to Rockwell was 22 adequate to protect Mr. Gabaldon's health? 23 A. The information provided to Rockwell 24 clearly identified that working with beryllium could 25 potentially be hazardous if excessive exposures 142 1 occurred, and Brush even informed Rockwell before 2 they even started working with beryllium methods or 3 provided them an avenue for how they could obtain 4 the information they needed to set up a safe program 5 or a program that would permit their -- protect 6 their workers. So they warned about the hazards, 7 and they identified how Rockwell could proceed to 8 protect their workers. 9 Q. In your opinion, the warnings were 10 adequate? 11 A. Yes. 12 Q. In your opinion, the safe use and 13 handling instructions were adequate? 14 A. The -15 MR. NOVA: Objection; vague. 16 THE WITNESS: Again, Brush does not always 17 know how its customers are going to use their 18 products. They don't know the size of the room or 19 the number of grinders. There may be a number of 20 things they're not privy to. Rockwell was a secure 21 facility. They couldn't even go in there. 22 Therefore, you can't provide the last level of 23 detail, and there's also sometimes different ways of 24 providing protection. 25 So while Brush's moral obligation was 143 1 to warn the user that beryllium was toxic, they went 2 beyond that and provided a road map for how they 3 could go about protecting their workers and, thus, 4 Brush acted reasonably in warning their users 5 regarding the hazards of working with beryllium. 6 BY MR. METZGER: 7 Q. Did Brush Wellman provide any use and 8 handling information to Rockwell? 9 A. In very general terms, yes. 10 Q. In your opinion, was that 11 information -- the safe use and handling information 12 that Brush Wellman provided to Rockwell, was that 13 adequate? 14 A. Yes. 15 Q. Did Brush Wellman provide any hazard 16 communication to Rockwell prior to 1997 which warned 17 that exposure to beryllium can cause death? 18 A. I'd have to go back and review 19 whether the word "death" actually appears, whether 20 the description of CBD is written in a way that you 21 can conclude it can be fatal. Clearly, I recall the 22 warnings discussing that it could cause a serious 23 disease, but I have to go back to see if it actually 24 used the word "death." I don't recall that at the 25 moment. 144 1 Again, the warnings were sufficiently 2 adequate that if someone were looking at it, they'd 3 say, "I don't believe a reasonable person would 4 conclude, 'Oh, it doesn't say it will cause me to 5 die. Therefore, it's okay to be exposed to levels 6 that will injure me.'" 7 Q. Is it your opinion that when a 8 manufacturer of a product knows of a hazard that its 9 product can cause death, that the manufacturer need 10 not warn its customers of that? 11 MR. NOVA: Objection; vague, overbroad. 12 THE WITNESS: Again, you'd have to look at 13 the warning if it can cause death. But the user 14 might be able to conclude from the warning that the 15 disease -- the resulting disease would be disabling 16 or might cause death. I think we'd have to look at 17 the specific warning and look at the gravity of what 18 the adverse effect is. And it seems to me that if 19 it suggests serious harm, then that would be 20 adequate. 21 BY MR. METZGER: 22 Q. Taking a look at Exhibit 18, can you 23 identify for me in that material safety data sheet 24 any language which you believe communicates to 25 Brush Wellman's customer that this product can cause 145 1 death? 2 A. (Witness peruses document.) 3 Yes. 4 Q. What language? 5 A. A language that suggests two parts. 6 One is -7 Q. Excuse me. Please read the language, 8 and don't characterize it. 9 MR. NOVA: Is this a new question now? 10 He's asking a new question. He 11 doesn't want you to answer the first question, 12 apparently. 13 BY MR. METZGER: 14 Q. I want you to read the language and 15 not characterize it. 16 A. You want me to read the language that 17 would permit the reader to infer that excessive 18 exposure to beryllium can cause death? 19 Q. Yes. 20 A. Okay. I can do that. "Beryllium has 21 been so listed based principally on animal tests and 22 therefore as shipped by Brush this material bears a 23 label identifying it as potential cancer hazard." 24 Everyone knows that cancer causes death; so that is 25 clearly one indication that exposure to beryllium 146 1 causes death. 2 Secondly, it says "Effects of 3 overexposure, a serious chronic lung disease." And 4 I believe that most people can recognize if you have 5 a serious lung disease restricting the ability to 6 transfer oxygen, carrying out a basic life function, 7 that that could result in death. 8 Q. Do you believe that the language 9 "cough" conveys a risk of death? 10 A. No. 11 Q. Do you believe the language "chest 12 pain" conveys a risk of death? 13 A. Not by itself. 14 Q. Do you believe that the language 15 "shortness of breath" conveys a risk of death? 16 A. Not by itself. 17 Q. Do you believe that the language 18 "weight loss" conveys a risk of death? 19 A. No. That sounds appealing. 20 Q. Do you believe that the language 21 "weakness" conveys a risk of death? 22 A. Not by itself. 23 Q. Do you believe that the language 24 "fatigue" conveys a risk of death? 25 A. Not by itself. 147 1 Q. In this document all of those words 2 are characterizing the serious chronic lung 3 disease. True? 4 A. They are characterizing it, yes. 5 They are modifying it, yes. 6 Q. Can you tell me what the current 7 state of medical opinion is regarding what the 8 prevalence or incidence of CBD is among beryllium 9 workers? 10 MR. NOVA: Objection; asked and answered. 11 Answer it again. 12 THE WITNESS: I forgot the first part. Can 13 you reread the question, please. 14 (Question read.) 15 THE WITNESS: I believe that that's a 16 variable. I don't know -- well, different people 17 have suggested different numbers. I don't know all 18 the latest numbers that have been proposed. 19 BY MR. METZGER: 20 Q. What are the numbers that you are 21 aware of? 22 A. I am aware of numbers anywhere from 23 less than a percent to around 16 percent. 24 Q. What information in the exhibits 25 before you informs Brush Wellman's customers that 148 1 the incidence or prevalence of CBD may be as much as 2 16 percent? 3 A. I don't believe there's anything in 4 there that suggests it could be 16 percent, nor do I 5 believe that there is scientific evidence to show it 6 at 16 percent. 7 Q. Are you aware of any literature which 8 reports a prevalence of CBD in long-term beryllium 9 workers of at least 20 percent? 10 A. I have not seen that. 11 Q. Do you believe it is an adequate -12 strike that. 13 For Brush Wellman to communicate to 14 its customers and their employees that only one 15 percent of the population that is exposed to 16 beryllium is even susceptible of getting the 17 disease, do you believe that that is an adequate 18 warning? 19 MR. NOVA: Objection; vague. 20 THE WITNESS: The warning that Brush 21 provides states that beryllium is -- can be 22 hazardous and suggests what safe exposure limits 23 are. It does not suggest that you only have to have 24 one percent or five percent of your work population 25 comply with the standard. Therefore, that is a 149 1 piece of additional information which has changed 2 over time but would not permit the user to ignore 3 the standard or change them from providing a safe 4 environment for all their workers. 5 BY MR. METZGER: 6 Q. Do you believe that a worker has the 7 right to know what the odds are that the worker will 8 develop chronic beryllium disease? 9 MR. NOVA: Objection; vague. 10 THE WITNESS: I believe that a worker has a 11 right to expect that his employer will provide a 12 safe environment. 13 BY MR. METZGER: 14 Q. That's not what I asked you. 15 MR. NOVA: Would you stop cutting him off, 16 Mr. Metzger. Would you let him finish his 17 responses, please. 18 MR. METZGER: Well, his response is totally 19 unresponsive. 20 MR. NOVA: That's not for you to decide. 21 MR. METZGER: I think it is. 22 MR. NOVA: You can answer the rest of the 23 question if you were not finished. 24 THE WITNESS: The likelihood of getting CBD 25 is dependent on more factors than just what 150 1 percentage of the population is sensitive; working 2 conditions, exposure levels, and so on. I don't 3 believe that an employee would be in a position to 4 correctly assess his risk just from knowing or 5 suggesting that one percent might be the correct 6 percent of the population that was at risk, and 7 there is at least data to support for a certain time 8 period that that may have been correct. 9 BY MR. METZGER: 10 Q. You don't believe that some workers 11 would be willing to work in an environment where 12 they knew that there was only a one percent risk 13 that they were even susceptible to developing the 14 disease, but that workers might not be willing to 15 work in an environment where there was a 20 percent 16 risk? 17 MR. NOVA: Objection; argumentative. 18 THE WITNESS: It's not up to the worker to 19 decide what risk he wants to take. The employer 20 needs to provide a safe working environment for the 21 employee. 22 BY MR. METZGER: 23 Q. In your opinion, did Mr. Gabaldon's 24 employers provide a safe working environment for 25 him? 151 1 A. To the extent they were not able to 2 comply with the 2 microgram per cubic meter 3 standard, there might have been some risk of getting 4 CBD. 5 MR. METZGER: Can you read the question 6 back, please. 7 (Question read.) 8 THE WITNESS: And my answer was to the 9 extent they weren't able to comply with the 2 10 microgram standard, we could say they probably 11 should have done a better job. 12 BY MR. METZGER: 13 Q. I'm not asking you whether they 14 complied with the 2 microgram standard or whether 15 they should have done a better job. My question to 16 you is: In your opinion, did Mr. Gabaldon's 17 employers provide him a safe workplace? 18 A. Well, again, my answer is to the 19 extent they didn't comply with the 2 microgram, 20 there was some risk which would reduce the safety. 21 Q. Did Mr. Gabaldon's employers comply 22 with the 2 microgram standard? 23 A. Not at all times. 24 Q. And what are you basing that opinion 25 on? 152 1 A. There's a document here from 2 Mr. Port and Runion, 1965 document, which shows that 3 there were -- in their air sampling program that 4 they documented exposures over 2 micrograms per 5 cubic meter. Also in the NIOSH visit to the plant, 6 they also concluded there was a time period where 7 exposures over 2 micrograms per cubic meter 8 occurred. 9 Q. Were any of those conclusions based 10 upon an eight-hour time-weighted-average personal 11 breathing zone sample? 12 A. I think -- I don't know 100 percent. 13 My suspicion is for back in 1963, the answer would 14 be no, which would suggest that the actual exposure 15 might have been even higher. 16 Q. But might not have been? 17 A. Based on my review of how exposures 18 occur with working with beryllium, area sampling 19 almost always underestimates exposure. 20 Q. And are you familiar with the 21 location -- with the strategy that Mr. Gabaldon's 22 employers used in locating the area samplers? 23 A. I'd have to reread that. I don't 24 remember exactly how they did it. 25 Q. Okay. I'd like you to assume that 153 1 the area samplers recorded higher levels of 2 beryllium than personal breathing zone samplers. 3 Would you have any explanation for that? 4 MR. NOVA: Objection; vague, incomplete 5 hypothetical, lacks foundation. 6 THE WITNESS: If the area samples were 7 source zone samples, that could explain it. Let me 8 take a two-minute break again, please. 9 BY MR. METZGER: 10 Q. All right. We'll wait. 11 (A recess was taken.) 12 BY MR. METZGER: 13 Q. The name Shogo Shima is familiar to 14 you. True? 15 A. Yes. 16 Q. When is the first time that you heard 17 of Dr. Shogo Shima? 18 A. I don't remember in what year I 19 first -- it was sometime after I started working 20 with Brush Wellman. 21 Q. Have you been provided any document 22 which, in your opinion, proves that -- strike that. 23 Have you ever reviewed the record of 24 the OSHA beryllium hearings from 1977? 25 A. I've read some of it. 154 1 Q. Have you ever read the entire record? 2 A. I don't think I read the entire 3 record. 4 Q. In what you did read, did you see any 5 reference to any of Dr. Shogo Shima's studies? 6 A. I don't remember. I'd have to look 7 at it again. 8 Q. Do you have any information -- strike 9 that. 10 Have you seen any document which 11 documents transmission of any of Dr. Shima's written 12 studies to OSHA? 13 A. A transmittal letter? 14 Q. A transmittal letter or any other 15 type of document. 16 A. From whom? 17 Q. From -18 MR. NOVA: From anybody. 19 BY MR. METZGER: 20 Q. From anyone. 21 A. I can't recall. 22 Q. Do you know Robert Manware 23 personally? 24 A. No. 25 Q. Have you ever heard the name? 155 1 A. No. 2 Q. Have you undertaken any 3 investigation, independent investigation, to 4 determine whether Brush Wellman informed OSHA during 5 the 1977 beryllium hearings regarding Dr. Shima's 6 studies? 7 A. You're asking me if Brush Wellman in 8 their comments to OSHA in their hearings 9 specifically referred to Dr. Shima's work? 10 Q. That would be part of it. 11 A. I am not aware of them referring to 12 Dr. Shima in their presentation to OSHA. 13 Q. As a matter of fact, in their 14 presentation to OSHA, they do not mention 15 Dr. Shima's studies at all. True? 16 A. I don't remember seeing any. 17 Q. I'm showing you Exhibit 10 to your 18 deposition. 19 A. Yes. 20 Q. Are you relying on that document for 21 any of your opinions in this case? 22 A. It's supplemental material just to 23 show that when Dr. Shima came and visited, that he 24 was told to go and visit with governmental agencies. 25 Q. Are you relying on this document for 156 1 any of your opinions in this case? 2 A. Not for any of the opinions that I've 3 been specifically asked to provide in this case, no. 4 Q. Are you relying on this document for 5 any opinions that you have expressed here today? 6 A. I believe you asked me about 7 Dr. Shima; so I'm relying on that in part to answer 8 your questions regarding whether Brush attempted to 9 hide the information that Dr. Shima was presenting. 10 MR. NOVA: Mr. Metzger, why don't you sit 11 back, please. 12 BY MR. METZGER: 13 Q. Do you believe that that is a genuine 14 document? 15 A. I have no reason not to think it's -16 it's a copy, but I have no reason to think it's not 17 a copy of a genuine document. 18 Q. Do you have any reason to believe 19 that it is a genuine document? 20 A. Yes. 21 Q. What is that? 22 A. It was provided by Brush. 23 Q. And in your opinion, that is a reason 24 to believe that it is a genuine document? 25 A. It is consistent with interview 157 1 testimony that I've been given. 2 Q. What interview testimony? 3 A. Dr. Preuss, for one. 4 Q. Who else? 5 A. That's who I remember talking to me 6 about it. 7 Q. What did Dr. Preuss tell you? 8 A. I recall he told me that when 9 Dr. Shima came over, that they had said that they 10 had invited him to meet with governmental agencies, 11 and that's consistent with what's in this document. 12 Q. Who is the "they" who invited 13 Dr. Shima to meet with governmental agencies? 14 A. I believe Dr. Preuss was one. 15 Q. Anyone else? 16 A. I don't remember anyone, any specific 17 name at this time. 18 Q. Who did Dr. Preuss tell you that he 19 invited Dr. Shima to meet with? 20 A. I believe he had mentioned OSHA. I 21 don't know if I remember him mentioning some of 22 the -- possibly NIOSH, too. I don't remember if 23 he -- I don't specifically remember him saying the 24 EPA, AEC. He may have. I just don't remember that. 25 Q. Have you contacted anyone at OSHA to 158 1 determine whether Dr. Shima met with them? 2 A. No. 3 Q. Have any of Brush Wellman's attorneys 4 or anyone else from Brush Wellman provided you a 5 copy of notes of a medical meeting at Luckey, Ohio, 6 from March 20 and 21, 1951? 7 A. I'd have to go through my files to 8 look and see. 9 Q. Do you recall seeing such a document? 10 A. Not off the top of my head. 11 Q. Have any of the attorneys of 12 Brush Wellman or any employees of Brush Wellman ever 13 provided you a copy of Bent Kelgrin's daily journal 14 files from March 19 through 20, 1951? 15 A. It doesn't sound familiar, but again 16 I'd have to check my files to see if it's there. 17 Q. Have Brush Wellman's attorneys or 18 anyone from Brush Wellman provided you any 19 correspondence from Dr. Joseph De Nardi? 20 A. Same answer. 21 Q. You don't recall receiving any of 22 that? 23 A. I don't recall. I'd have to check to 24 see if it's there. 25 Q. Has Brush Wellman or its attorneys 159 1 provided you any correspondence from NGK Insulators? 2 A. I have information from NGK. I don't 3 know if it's NGK Insulators. 4 Q. Have you been provided any 5 correspondence from NGK or NGK Insulators addressed 6 to H.C. Piper, the vice president of Brush Wellman? 7 A. I may have. I'd have to check my 8 files. 9 Q. You don't specifically recall seeing 10 such a document? 11 A. Not at the moment. 12 Q. Has Brush Wellman or its attorneys 13 provided you with any correspondence from Dr. Shima 14 to Dr. Van Ordstrand? 15 A. Again, I'd have to look. I do have 16 documents from Dr. Shima. Whether there's one 17 specifically addressed to Dr. Van Ordstrand, I don't 18 recall. 19 Q. Have you been provided any 20 correspondence from Dr. Shima from the year 1974? 21 A. Again, I have material from 22 Dr. Shima. Whether it's dated 1974, I'd have to 23 look. 24 Q. And these documents which you're 25 referring to which you would have to look to, you 160 1 haven't brought here today. Is that true? 2 A. That's true. 3 Q. Have you been provided a copy of a 4 memorandum from Steve Zenczak to Martin Powers dated 5 June 15, 1977? 6 A. I don't know. 7 Q. It doesn't ring a bell? 8 A. No. 9 Q. Have you been provided a copy of a 10 trip report regarding a meeting with Dr. Eisenbud 11 prepared by Dr. Thomas Markham dated June 30, 1989? 12 A. Sounds somewhat familiar. Whether I 13 have it, again, I'd have to check, but it sounds 14 familiar. 15 Q. And what do you recall about that 16 document? 17 A. I don't. I'd have to look at it. 18 Q. Have you ever seen any document 19 stating that the 2 microgram standard is to minimize 20 chronic disease but is liable to allow chronic 21 disease? 22 A. The only such statement that I am 23 aware of is the ACGIH standard of 2 micrograms per 24 cubic meter. In their preamble -- and their 25 preamble goes for all of their TLVs regardless of 161 1 the degree of documentation of the adequacy of the 2 number, and that varies from chemical to chemical. 3 So in their preamble, they caution that the TLVs may 4 not be fully protective. 5 Q. Based upon that preamble of the 6 ACGIH, is it your belief that exposure to beryllium 7 below the 2 microgram standard can cause chronic 8 beryllium disease in some individuals? 9 A. Is it my belief based on the TLV? 10 Is that what you're asking? 11 Q. No. Taking into account that 12 preamble to the ACGIH TLVs and other information 13 that you have, is it your belief that exposure to 14 beryllium below the 2 microgram standard may cause 15 CBD in some individuals? 16 A. And the answer to that is no because, 17 again, the preamble is a general preamble for some 18 chemicals. The limit is based on very limited data 19 and may not be based on any human epidemiological 20 data. That is certainly not the case for beryllium, 21 and I talked earlier about why I believe the 2 22 microgram standard is protective. 23 Q. When the 2 microgram standard was 24 established, was it based on empirical data? 25 A. If you're talking about 162 1 dose-response data, the answer is no. 2 Q. Was it based on any epidemiologic 3 data? 4 A. No. That's why it was so low. 5 Q. Have you been provided any 6 Brush Wellman documents -- strike that. 7 Have you been provided a document 8 authored by a Brush Wellman CEO stating that "Our 9 records show that practically all our occupational 10 disease cases during the last year have occurred in 11 places below the 2 microgram limit"? 12 A. I don't know if I've seen it in 13 writing, but I have heard that that statement was 14 made. 15 Q. Who told you that that statement was 16 made? 17 A. Mr. Nova. 18 Q. But he didn't provide you the 19 document? 20 A. I don't think I've seen it in written 21 form. 22 Q. Did you ask him to provide you that 23 document? 24 A. No. 25 Q. Why not? 163 1 A. Because that -- there's information 2 that also there are some areas where exposures over 3 or higher levels of exposure existed, and little CBD 4 cases have been found. And so whether that is 5 showing the complexity of truly identifying the form 6 or physical or chemical structure of beryllium, we 7 don't know all the answers of exactly how CBD is 8 caused. But clearly in terms of the situation where 9 there was CBD found in employees in an area where it 10 did not seem to have exposures over 2, that did not 11 mean that those employees had not been exposed over 12 2. 13 So, therefore, there was nothing 14 really inconsistent or could be used to prove that 15 exposures below 2 result in CBD. 16 Q. So you have no desire to see the 17 document? 18 A. What would be of greater desire would 19 be to see the background information of where these 20 workers were to do an evaluation of the situation 21 and find out what's going on. A comment by a member 22 of Brush Wellman that does not imply anything of a 23 scientific nature or can be used scientifically, 24 that would not be of relevance to me. What would be 25 of relevance to me is the evaluation, the scientific 164 1 identification of what's going on. 2 Q. Did you ask Mr. Nova to provide you 3 that documentation? 4 A. Right at the moment, I have not been 5 asked to comment on that particular situation. 6 Q. Did you ask Mr. Nova to provide you 7 that documentation? 8 A. No. 9 Q. Why not? 10 A. Because, again, in this particular 11 case, I was not asked to draw conclusions that would 12 require that information. 13 Q. But you nevertheless are prepared to 14 testify that, in your opinion, Brush Wellman did not 15 conceal the hazards of beryllium disease. True? 16 MR. NOVA: Objection; argumentative. 17 THE WITNESS: Yes. That's true. 18 BY MR. METZGER: 19 Q. Do you believe that anyone has proven 20 beyond a doubt that the 2 microgram standard is 21 completely safe in terms of preventing chronic 22 beryllium disease? 23 A. Again, in my evaluation, I have 24 concluded that based on all I have seen, there's 25 sufficient data to permit that conclusion. But as a 165 1 good health scientist, I would certainly agree that 2 we need to continue to look at beryllium and disease 3 because we should find out the exact mechanism. And 4 that at this moment is an unknown. 5 Q. What scientific proof are you aware 6 of that, in your opinion, proves beyond a doubt that 7 the standard is completely safe for preventing 8 chronic beryllium disease? 9 A. I've already gone over my evaluation 10 and the information that I've used to conclude that 11 the 2 microgram level is safe. 12 Q. But what specific study or studies 13 are you relying on for the conclusion that it's been 14 proven beyond a reasonable doubt that it's 15 completely safe? 16 A. And, again, I told you the studies 17 that I have used that permit me to conclude that at 18 this time there is sufficient information to 19 conclude that the 2 microgram per cubic meter limit 20 is safe. However, as a good scientist, again, I 21 applaud the efforts of the occupational health 22 community to continue to investigate because we need 23 to find out what the actual mechanism of how CBD 24 causes -- of how beryllium causes CBD needs to be 25 determined. 166 1 Q. Can you identify for me any 2 epidemiologic study which proves beyond a doubt that 3 the 2 microgram standard is completely safe? 4 A. And again, I'm not referring to any 5 one population. I'm looking at several populations, 6 which adds to the strength of that conclusion. 7 Q. Can you identify for me any written 8 epidemiologic study published in any peer-reviewed 9 journal which, in your opinion, establishes beyond a 10 doubt that the 2 microgram standard is completely 11 safe? 12 A. And, again, I just told you the 13 populations I have looked at and how I've drawn my 14 conclusions. 15 MR. NOVA: Repeat them. He needs to hear 16 them again. Repeat them. 17 BY MR. METZGER: 18 Q. I'm asking for a published 19 epidemiologic study. Can you identify one? 20 A. Not off the top of my head, I can't. 21 Q. Are you aware of any organizations 22 that have questioned the protectiveness of the 2 23 microgram standard? 24 MR. NOVA: Objection; asked and answered. 25 One more time we'll go through this. 167 1 THE WITNESS: Yes. 2 BY MR. METZGER: 3 Q. Which? 4 A. The Department of Energy and the 5 ACGIH. 6 Q. Is it true that the Department of 7 Energy does not believe that the 2 microgram 8 standard is adequate to prevent CBD? 9 A. I know that they did not change the 2 10 microgram per cubic meter limit. 11 Q. You know that? 12 A. Yes. 13 Q. And that is part of the basis for 14 your opinion. True? 15 A. What? They didn't change the limit; 16 so if they thought that that limit should be 17 changed, I would assume they'd change it. 18 Q. That's part of the basis of your 19 opinion that CBD cannot occur below 2 micrograms. 20 Is that true? 21 A. No, that is not true. 22 Q. Okay. You mentioned the ACGIH. What 23 has the ACGIH done? 24 A. I believe they have proposed a lower 25 limit. 168 1 Q. And they did that in formal 2 documentation. True? 3 A. Yes. 4 Q. Have you read that documentation? 5 A. I believe I have, yes. 6 Q. Are you uncertain that you've read 7 the documentation supporting the proposed change of 8 the ACGIH? 9 A. No. I have read it. I just don't 10 remember all of it right now. 11 Q. You don't have it with you, the 12 document? 13 A. No. 14 Q. Do you disagree with any of the 15 reasoning set forth in that document? 16 A. Again, I'd have to reread it to 17 refresh myself to be able to answer that question. 18 Q. You have here some deposition 19 excerpts apparently from Mr. Gabaldon's deposition. 20 True? 21 A. Yes. 22 Q. Are you relying on these excerpts for 23 any of your opinions in this case? 24 A. You know, I'd have to go through and 25 see what my comments are. 169 1 Q. Well, as I understand it, from the 2 way you've related your opinions, they don't relate 3 specifically to Mr. Gabaldon. 4 A. Pardon? 5 Q. They don't relate specifically to 6 Mr. Gabaldon. 7 A. What doesn't relate specifically? 8 Q. Your opinions. 9 A. I used some of what Mr. Gabaldon said 10 to reaffirm. For example, he indicated they had 11 medical exams. He indicated he was provided a 12 respirator. He indicated he did have training. So 13 that supports my position that Rockwell was a 14 sophisticated user. 15 Q. I understand. Are you rendering any 16 opinion or have you formed any opinion in this case 17 regarding Mr. Gabaldon's -- strike that. 18 Have you been asked to form an 19 opinion in this case regarding Mr. Gabaldon's 20 exercise of reasonable care for his own safety? 21 A. Have I read anything about that? 22 Q. Have you been asked to form an 23 opinion on that? 24 A. It was mentioned, but that is not 25 part of the conclusions or the opinions that I was 170 1 asked to form. 2 Q. So as I understand it, you are not 3 going to be rendering an opinion as to whether 4 Mr. Gabaldon exercised reasonable care for his own 5 health and safety? 6 A. No. I was not asked to comment on 7 that. 8 Q. And you have no opinion on that. 9 True? 10 A. I have an opinion on it, yes. 11 Q. Well, do you have an opinion that you 12 will be offering in this case, or is this just an 13 opinion that you're going to keep to yourself 14 because you haven't been asked to render an opinion 15 on it? 16 A. I am going to keep it to myself 17 unless asked, but at this time I have not been 18 asked. 19 MR. METZGER: Mr. Nova, is he going to be 20 asked that at trial? 21 MR. NOVA: Well -22 MR. METZGER: Make a decision. Just let me 23 know. 24 MR. NOVA: Excuse me? 25 MR. METZGER: I'm asking you to make a 171 1 decision. Just let me know. 2 MR. NOVA: You've been asking him questions 3 all day on topics that we are not offering for 4 trial; so I'm not intending to cut this off now. If 5 you want to go on asking him opinions on whatever 6 opinions he has, you spend your deposition time as 7 you see fit. 8 BY MR. METZGER: 9 Q. All right. Then since Mr. Nova is 10 not saying that you will not be rendering an opinion 11 on this, I can only assume you will be. I will 12 therefore ask you: Dr. Rabinovitz do you have an 13 opinion as to whether Mr. Gabaldon exercised 14 reasonable care for his own health and safety? 15 A. My understanding is that he sometimes 16 reached into -- he opened the enclosure contrary to 17 what he was told to do, which was an act that might 18 lead to an elevated exposure. Therefore, he did 19 something that he was told not to do, which he knew 20 could result in an increased exposure; so he did not 21 act to protect his health in that situation. 22 Q. Is there anything else? 23 A. That's the only piece of information 24 that I am aware of where he was trained to do 25 something differently and ignored the training. 172 1 Q. Is there any other information that 2 you have that Mr. Gabaldon did not act reasonably to 3 protect his own health and safety in doing his work? 4 A. That's the only incident that I am 5 aware of. 6 Q. Who told Mr. Gabaldon not to open the 7 enclosure to the machine? 8 A. I noticed that in the air sampling 9 report it's noted that he was told. 10 Q. Show me such a report, please. 11 You're referring to Exhibit 25. True? 12 A. Yes. There is a comment that it was 13 noticed that at times that he had his enclosure 14 open, and there's a date that he was orally 15 notified. 16 Q. Referring to a document stamped 17 Page 1224. True? 18 A. Yes. Do you want me to continue 19 looking? 20 Q. Sure. Go through that. Just 21 identify the page numbers of any of these pages in 22 here which you believe indicate that Mr. Gabaldon 23 was told not to open the machine enclosure. 24 A. (Witness peruses document.) 25 There is another one. It's 173 1 Page 1226. 2 Q. Any others? 3 A. And here it indicates that "The 4 operator will have to wear a respirator if he can't 5 work with the enclosure." 6 "Page 1223," notices that the hood 7 was open at times during grinding. 8 Q. Keep in mind the question. I'm 9 asking you to identify for me documents which you 10 believe indicate that Mr. Gabaldon was told not to 11 open the enclosure on the machine. 12 A. It mentions the date of employee 13 notification on some of these, not all of them. And 14 I'm assuming that that recognizes that he was told 15 not to. 16 Q. Looking at Exhibit 25, the page Bates 17 stamped No. 1226, you read language on this page 18 that "The grinder operator will have to wear 19 respirator if he can't work with enclosure." True? 20 A. Yes. 21 Q. Does that indicate to you that 22 Mr. Gabaldon had to open the enclosure to do his 23 work? 24 A. That suggests to me he doesn't have 25 to open it to do his work. 174 1 Q. Why is that? 2 A. Because it doesn't say he will have 3 to wear a respirator because he has to open his 4 enclosure while doing his work. It suggests that if 5 he won't do it with the enclosure, with the door 6 closed, then he's going to have to wear a 7 respirator. 8 Q. That's the way you interpret that? 9 A. Yes. 10 Q. Did you contact the author of this 11 document to determine if your interpretation is 12 correct? 13 A. No. 14 Q. Have you contacted the authors of any 15 of these documents to determine whether your 16 interpretation is correct? 17 A. No. 18 Q. For any of these occasions, do you 19 know personally what Mr. Gabaldon was told? 20 A. I was not there to hear the exact 21 wording. 22 Q. Do you know what information was the 23 custom and practice of the industrial hygienists at 24 Rockwell to inform the worker regarding these 25 sampling reports? 175 1 A. I don't know the specific manner in 2 which they did it. 3 Q. Do you know that they provided any 4 information to the worker other than the level 5 recorded? 6 A. I'm assuming based on that 7 information that they told him that he had to work 8 with the enclosure closed, or he'd have to wear his 9 respirator. 10 Q. Have you ever seen a beryllium 11 grinding operation? 12 A. Yes. 13 Q. Have you ever watched a worker doing 14 that operation for a few hours? 15 A. No. 16 Q. Do you know whether that operation 17 can be done without opening the enclosure? 18 A. Based on the fact that just that 19 documentation says he needs to do it without opening 20 it, I assume they wouldn't put it in there saying 21 that it could be done that way if it couldn't be 22 done that way. 23 Q. I'm not asking you to assume 24 anything. Do you know whether that operation can be 25 done without opening the enclosure? 176 1 A. I do know that grinding operations 2 can be done that while the grinding is going on, the 3 enclosure should be closed. That's why they put a 4 door on it, to close it. If you had to operate it 5 with the door open, why have a door? 6 Q. Do you know that the entire operation 7 that Mr. Gabaldon had to do in his work at Rockwell 8 in grinding beryllium could be done with the 9 enclosure closed at all times? 10 A. Certainly not at all times. Just 11 putting the piece in and out. But there's no 12 grinding going on at that point. 13 Q. Did the piece have to be turned? 14 A. It's certainly possible the piece 15 would have to be turned. But while you're turning 16 it, you turn the grinder off. 17 Q. To turn the piece, do you have to 18 open the enclosure? 19 A. I would assume you would. 20 Q. And to turn the piece, do you have to 21 bend over the machine to reach the part? 22 A. You know, I would have to physically 23 be there to see the size and know that. I don't 24 know. Often most grinding situations I've seen, you 25 can reach in. You don't really have to lean over. 177 1 But perhaps if he were short and it was a machine 2 that was a little tall, I can't say for sure. 3 Q. Do you know what the size of the 4 parts were that he was grinding? 5 A. There was some description of some of 6 the parts, but I certainly don't know all the sizes. 7 Q. To do high-precision grinding, is it 8 necessary for the grinder to inspect visually the 9 part closely? 10 MR. NOVA: Object. The question is vague. 11 THE WITNESS: In terms of tolerances, there 12 are measurements that I'm aware of that are often 13 made. I don't know the specific procedure; but if 14 measurements have to be made, then you stop the 15 grinding, make your measurement, and then start 16 grinding again. 17 BY MR. METZGER: 18 Q. Have you seen any documentation which 19 indicates that 25 percent of the time Mr. Gabaldon 20 had to work with the enclosure open in order for him 21 to do the job? 22 A. That the enclosure had to be open for 23 25 percent of the time? 24 MR. NOVA: No. The question is: Have you 25 seen any documentation? 178 1 THE WITNESS: No, I haven't. 2 BY MR. METZGER: 3 Q. Have you told me all your opinions in 4 this case? 5 A. I have told you the general 6 opinions. I have told you what Brush asked me to 7 review and what kind of evaluation -- the items they 8 wanted evaluated and the general conclusions that I 9 have come to through that evaluation. 10 Q. Are there any opinions that you 11 intend to render at trial that you haven't told me 12 today? 13 A. Again, I have told you all the 14 general opinions. There might be something of a 15 nature in support of these general opinions, but I 16 have covered the general topics. 17 Q. Is there any literature or 18 documentation that you are relying on in support of 19 your opinions which we haven't already discussed? 20 A. Again, I told you that in addition to 21 these specific documents (indicating), I am relying 22 on my general knowledge and education and experience 23 from working in this field, which will soon come to 24 around 30 years. No. It's at 30 years. 25 Q. All right. I am unwilling to 179 1 conclude this deposition because you have not 2 produced documents that I believe you were required 3 to produce today. 4 Mr. Nova, I'm requesting that those 5 be produced as soon as possible and that I'm going 6 to continue this deposition to Wednesday at 10:00 in 7 this office. 8 MR. NOVA: Well, the fact that you choose to 9 ask Dr. Rabinovitz about opinions that he was not 10 offered for is your problem and not ours. I 11 certainly disagree that the deposition -- that you 12 have a right to continue the deposition, and we do 13 not agree with any continuance. 14 MR. METZGER: All right. Are you telling me 15 that you're not going to appear on Wednesday? 16 MR. NOVA: I'm telling you that we intend to 17 take it up with the judge on Monday, and we'll let 18 the judge decide. 19 MR. METZGER: Very well. 20 MR. NOVA: You can cut him a check now, 21 please. Same stipulation. 22 MR. METZGER: No. There's no stipulation. 23 We're going by the Code. The deposition has been 24 continued. 25 (Proceedings adjourned at 4:29 p.m.) 180 1 DECLARATION 2 3 4 5 I hereby declare I am the deponent in the 6 within matter; that I have read the foregoing 7 deposition and know the contents thereof, and I 8 declare that the same is true of my knowledge except 9 as to the matters which are therein stated upon my 10 information or belief, and as to those matters, I 11 believe it to be true. 12 I declare under the penalties of perjury of 13 the State of California that the foregoing is true 14 and correct. 15 Executed this day of , 16 2000, at , California. 17 18 19 20 21 Sheldon H. Rabinovitz, Ph.D., C.I.H. 22 23 24 25 181