Document reb6xRj50372G37qGKoJpLBpv

1 2 3 SUPERIOR COURT OF THE STATE OF CALIFORNIA 4 FOR THE COUNTY OF LOS ANGELES 5 6 STEVEN AND KATHY WORKMAN, ) 7) Plaintiffs, ) 8) vs. ) No. BC 250793 9) POMA DISTRIBUTING COMPANY, INC., a) 10 California corporation; ADVANTAGE ) TANK LINES, INC., a California ) 11 corporation; ULTRAMAR, INC., a ) Nevada corporation; MILLARD ) 12 REFRIGERATED SERVICES, INC., a ) Nebraska corporation; MILLARD ) 13 REFRIGERATED SERVICES - ATLANTA, ) INC., a Georgia corporation; ) 14 MILLARD REFRIGERATED SERVICES - ) ATLANTA II, INC., a Georgia ) 15 corporation; and DOES 1 through ) 100, inclusive, ) 16 ) Defendants. ) 17 ) 18 19 DEPOSITION OF PHILIP COLE, M.D. 20 Monday, February 9, 2004 21 Long Beach, California 22 23 REPORTED BY: Lyn Corrin Aaker, CSR No. 6228 24 25 1 1 2 SUPERIOR COURT OF THE STATE OF CALIFORNIA 3 FOR THE COUNTY OF LOS ANGELES 4 5 STEVEN AND KATHY WORKMAN, ) ) 6 Plaintiffs, ) ) 7 vs. ) No. BC 250793 ) 8 POMA DISTRIBUTING COMPANY, INC., a) California corporation; ADVANTAGE ) 9 TANK LINES, INC., a California ) corporation; ULTRAMAR, INC., a ) 10 Nevada corporation; MILLARD ) REFRIGERATED SERVICES, INC., a ) 11 Nebraska corporation; MILLARD ) REFRIGERATED SERVICES - ATLANTA, ) 12 INC., a Georgia corporation; ) MILLARD REFRIGERATED SERVICES - ) 13 ATLANTA II, INC., a Georgia ) corporation; and DOES 1 through ) 14 100, inclusive, ) ) 15 Defendants. ) ) 16 17 18 Deposition of PHILIP COLE, M.D., an Expert 19 Witness, taken on behalf of the Plaintiffs, at 20 401 East Ocean Boulevard, Suite 800, Long Beach, 21 California 90802, commencing at the hour of 22 10:00 a.m., Monday, February 9, 2004, before 23 Lyn Corrin Aaker, CSR No. 6228, pursuant to 24 Notice of Taking Deposition. 25 2 1 APPEARANCES OF COUNSEL: 2 3 For Plaintiffs: 4 METZGER LAW GROUP BY: RAPHAEL METZGER 5 Attorney at Law 401 East Ocean Boulevard 6 Suite 800 Long Beach, California 90802 7 (562) 437-4499 8 For Defendants POMA DISTRIBUTING COMPANY, INC., and ADVANTAGE TANK LINES, INC.: 9 WOOD SMITH HENNING & BERMAN, LLP 10 BY: R. GREGORY AMUNDSON Attorney at Law 11 611 Anton Boulevard Suite 1050 12 Costa Mesa, California 92626 (714) 668-2976 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 INDEX 2 3 WITNESS EXAMINATION PAGE 4 Philip Cole, M.D. By Mr. Metzger 5 5 By Mr. Metzger (continued) 74 6 7 EXHIBITS FOR IDENTIFICATION 8 Plaintiffs' A Copy of "Revies Epidemiologic 33 Perspectives on Myelodysplastic 9 Syndromes and Leukemia"; 5 pages 10 Plaintiffs' B Copy of Draft "Table A-5" 54 11 Plaintiffs' C Copy of "Does Diesel Exhaust Cause 55 Human Lung Cancer?"; 23 pages 12 Plaintiffs' D Copy of "Tobacco and Cancer: 56 13 Recent Epidemiological Evidence; 8 pages 14 Plaintiffs' E Copy of 12/16/03 correspondence 57 15 with attachments; 6 pages 16 Plaintiffs' F Copy of "Curriculum Vitae"; 67 16 pages 17 Plaintiffs' G Copy of "Cases in Which Testimony 67 18 Has Been Provided by Philip Cole, MD, DrPH"; 3 pages 19 20 21 WITNESS INSTRUCTED NOT TO ANSWER 22 PAGE LINE 23 76 12 24 25 4 1 MONDAY, FEBRUARY 9, 2004, LONG BEACH, CALIFORNIA 2 10:00 A.M. 3 *** 4 5 PHILIP COLE, M.D., 6 the witness herein, having been first duly sworn, was 7 examined and testified as follows: 8 9 EXAMINATION + 10 BY MR. METZGER: 11 Q. Would you introduce yourself for the record, 12 Doctor. 13 A. My name is Philip Cole. 14 Q. And you are an esteemed epidemiologist but not a 15 medical doctor. True? 16 A. I think you may be wrong on both counts there. I 17 am a medical doctor, and I make no claim to be esteemed. 18 Q. Oh, okay. Yes, I do see you actually do have an 19 M.D. Okay. Well, Dr. Cole, you've testified a number of 20 times in the past? 21 A. Yes, I have. 22 Q. Let's talk about that briefly. Could you tell me 23 approximately how many depositions you have given in your 24 career? 25 A. I'd say about 70. 5 1 Q. And about how many trials have you testified in? 2 A. Mr. Metzger, when you say "trial," would that 3 include things that occurred in court, but I'm not sure -4 some of them aren't actually trials. They may be hearings 5 of a sort. 6 Q. Sure. Any court hearing or trial. 7 A. Maybe 10 or 15. 8 Q. And have you ever testified before any 9 governmental agencies? 10 A. Again, I need some clarification. Would that be, 11 for example, a scientific body or only regulatory body? 12 Q. Are you suggesting that regulatory bodies don't 13 follow science? 14 A. Well, no. I'm sorry if I did. I meant where the 15 purpose was to get information pertinent to a regulation 16 or get information pertinent to some kind of a treatise of 17 a learned nature. 18 Q. Well, let me try clarifying it this way. What 19 I'm referring to is any time you spoke before a 20 governmental agency, that's governmental, not private, and 21 where you took an oath and swore to tell the truth. 22 A. Okay. That's helpful. Yes, I have done that 23 perhaps six or eight times in my life. 24 Q. Okay. Of the approximately 70 depositions that 25 you've given, could you tell me how many of them related 6 1 to benzene or some form of blood dyscrasia or hematologic 2 malignancy? 3 A. The benzene ones would be about 10 or 12, and the 4 blood dyscrasia would be maybe 15 or so, a few more. 5 Q. Okay. And that would include hematologic 6 malignancies? 7 A. Yes. Hematologic malignancies where benzene was 8 not the issue. 9 Q. Well, then, let's see. Regarding those, I assume 10 some were regarding 1,3 butadiene. Is that true? 11 A. No. I've never testified regarding butadiene. 12 Q. Oh, what were the subjects of the blood dyscrasia 13 depositions? 14 A. They were all the same. They were 15 electromagnetic fields, or EMF for short. 16 Q. Other than EMFs and benzene, have you given 17 depositions regarding any other actual reputative causes 18 of hematologic diseases or malignancies? 19 A. I don't believe so. 20 Q. Could you tell me what the last deposition that 21 you gave regarding a benzene case was? 22 A. I really don't recall now. It's been quite a 23 while. 24 Q. Do you have a list of litigations in which you've 25 testified? 7 1 A. Yes, I do. 2 Q. Could I have that, please. 3 A. I don't have it with me. I mean, I will be glad 4 to provide it. 5 Q. Okay. It was requested. Could we possibly get 6 that faxed here? 7 A. I think we could do that. It's possible. If we 8 take a break and I call my secretary and if she can find 9 it because it's not on my university file, but I have -10 she may have access to it. 11 Q. Okay. Let's see. She is on Alabama time? 12 A. Two hours. 13 Q. Two hours. Would she be in now, or this is the 14 noon hour there? 15 A. No. It's quarter to 12:00, so this would be a 16 good time. 17 Q. Okay. Well, let's see. Perhaps we should call 18 for that. I'm trying to think if there's anything else 19 that we will need to call on. You have your CV with you? 20 A. No, I don't. I just assumed that Mr. Amundson 21 would be bringing it. 22 MR. METZGER: Do you have it, Greg? 23 MR. AMUNDSON: No, but I think it's attached to 24 our expert designation. I will look. 25 THE WITNESS: That's easy to have her send, but I 8 1 could have her e-mail it. 2 BY MR. METZGER: 3 Q. Actually, e-mail both would be fine. We could 4 just print them out. That might be quickest. And does 5 that have your list of publications? 6 A. Yes. Do you want to give me a fax number? I'm 7 sorry. E-mail address. 8 Q. Sure. If she could e-mail it to 9 rmetzger@toxictorts.com. 10 THE WITNESS: Greg, I assume that you are okaying 11 all of this. 12 MR. AMUNDSON: Of course. 13 THE WITNESS: Are we off the record? 14 MR. METZGER: We'll go off the record. Sure. 15 (Discussion held off the record.) 16 BY MR. METZGER: 17 Q. Well, I can ask you a few questions without the 18 list here. Regarding the approximately 10 to 12 19 depositions that you gave regarding benzene, were any of 20 those on behalf of a worker claiming to be injured? 21 A. No. 22 Q. Were they all on behalf of the defense? 23 A. Yes. 24 Q. And did the defense constitute oil companies 25 and manufacturers or distributors of benzene or 9 1 benzene-containing products? 2 MR. AMUNDSON: Objection; compound. Go ahead and 3 answer. 4 THE WITNESS: The answer is yes. 5 BY MR. METZGER: 6 Q. Okay. And in the EMF cases that you've testified 7 in, were any of those on behalf of someone claiming to 8 have been injured, or were those on behalf of the defense? 9 MR. AMUNDSON: Same objections. Go ahead. 10 THE WITNESS: Sorry. They were all on behalf of 11 defense. 12 BY MR. METZGER: 13 Q. Of the 70 depositions that you've given, how 14 many, if any, of them were where you were engaged as an 15 expert or testified as an expert on behalf of a person 16 claiming to have been injured? 17 A. Three or four. 18 Q. Can you identify what they were? 19 A. When you say "they," do you mean the case or the 20 agents? 21 Q. However you can. 22 A. The agents were two. The first one is DES, which 23 is diethylstilbestrol, and the outcome was clear cell 24 adenocarcinoma of the genital tract in young women. And 25 the other agent was menopausal estrogens, specifically 10 1 Premarin, and the outcome was breast cancer. 2 Q. With respect to the 70 depositions that -3 approximately 70 depositions that you've given, excluding 4 pharmaceuticals or medical devices, were all of the 5 depositions on behalf of the defense? 6 A. Yes. 7 Q. Of the approximately 10 to 15 trials or hearings 8 that you've testified in in court, how many of those 9 concerned benzene? 10 A. Perhaps six or so, maybe a little less than half 11 of the total. 12 Q. And in those cases, at those trials did you 13 always testify on behalf of the defense? 14 A. Yes. 15 Q. Of the 10 to 15 trials that you've testified in, 16 have all of them been for the defense? 17 A. No. 18 Q. Excluding pharmaceuticals and medical devices, 19 have they all been on behalf of the defense? 20 A. I'll need some clarification. The agent in 21 question is DES. It was administered to one person as a 22 pharmaceutical, but the person who was injured was not the 23 person who received it as a pharmaceutical. So I'm not 24 sure what the answer to your question is. 25 Q. The injury was from a pharmaceutical agent. It 11 1 was an in utero exposure, and the daughter was a DES 2 daughter. Is that what we're talking about? 3 A. Yes. 4 Q. Other than that, were all the trials for the 5 defense? 6 A. Yes. And the other one -- no. My answer is yes. 7 Q. Okay. Now, of the approximately six to eight 8 times you've testified before governmental agencies, have 9 any of those concerned benzene? 10 A. No. 11 Q. What have been the subjects of those testimonies? 12 A. The electromagnetic fields, formaldehyde, many 13 years ago saccharine, chlorpyrifos, and an agent whose 14 chemical name I have forgotten, but it was the principal 15 ingredient in a shampoo that is used to rid children of 16 lice. 17 Q. Lindane? 18 A. I think that's correct. I think Lindane was 19 either the or one of the principal ingredients. 20 Q. All right. When you testified before the 21 governmental agency regarding EMF, what agency was that? 22 A. Well, there were several state agencies. Shall I 23 mention which ones they were? 24 Q. Sure. 25 A. State of Maine, State of New Jersey, and 12 1 Illinois. There was a federal agency. It was actually a 2 congressional committee. I can't remember now what 3 committee it was. Oh, and, also, State of Florida. 4 Q. Approximately when was this testimony before the 5 congressional committee? 6 A. That would have been quite a while ago, about 7 1987 or '88. 8 Q. On whose behalf were you testifying? 9 A. When you say "on whose behalf," you mean who was 10 sponsoring the appearance there? 11 Q. Yes. Who paid you? 12 A. I believe that was paid -- well, I should say 13 that I'm not sure, but my best recollection is that it was 14 on behalf of EPRI, E-P-R-I. 15 Q. And what is EPRI? 16 A. That stands for the Electric Power Research 17 Institute. 18 Q. That's an industry organization, according to 19 your understanding? 20 A. Well, the financing of the institute comes from 21 industry, yes. 22 Q. And when you testified regarding formaldehyde, 23 what agencies was that before? 24 A. I don't recall. 25 Q. And on whose behalf did you testify for 13 1 formaldehyde? 2 A. I'm sorry. Isn't that what you just asked? 3 Q. I asked you what agency. 4 A. In front of what agency? I'm sorry. It was in 5 front of EPA. 6 Q. About when was that? 7 A. Mid 1980s. 8 Q. And was it some industry trade organization on 9 whose behalf you testified? 10 A. No. It was on -- I think different people were 11 represented, sponsored by different corporations. I 12 believe I was sponsored by Shell Oil Company. 13 Q. Chlorpyrifos, what agencies did you testify 14 before regarding that? 15 A. I believe it was a scientific advisory board of 16 NIOSH. 17 Q. About what year was that? 18 A. About 1995 or so. I'll just say that there is a 19 publication that will be listed on my CV which will give 20 us specific information on that. 21 Q. Okay. And who sponsored your testimony? 22 A. That was sponsored by a chemical company. I 23 can't remember now whether it was Dow or Dupont. I think 24 it was one or the other of those two. 25 Q. Was it the register of chlorpyrifos? 14 1 A. I really don't know. 2 Q. Do you recall generally the thrust of your 3 testimony at that hearing, what it was about? 4 A. Chlorpyrifos? 5 Q. Yes. 6 A. It was actually as a participant in a roundtable 7 discussion, and I don't recall my specific assignment or, 8 indeed, even if I had one. But I can tell you that the 9 purpose of the roundtable was to review the available 10 epidemiologic information and to make a recommendation to 11 the agency as to what, if any, action they might take. 12 Q. And what recommendation, if any, was made? 13 A. I believe there were two. I think one was that 14 the available evidence did not support the idea that 15 chlorpyrifos was a cause of any form of cancer in human 16 beings, and that the research that the agency had done and 17 which they were considering either updating or upgrading 18 in some way should, in fact, have those improvements made 19 if possible. 20 Q. What improvements? 21 A. Well, that was not clear to us either. It was 22 simply stated that they were considering upgrading the 23 study that they had done. 24 Q. Okay. 25 A. Whether it meant extending it in time or size or 15 1 what, either was not known at that time or was known at 2 that time but I have forgotten. 3 Q. And when you testified regarding Lindane, what 4 agency was that before? 5 A. That was in front of a committee of the Food and 6 Drug Administration. 7 Q. About when was that? 8 A. That would have been about 1995. 9 Q. And who sponsored your testimony? 10 A. The manufacturer of the shampoo. 11 Q. Do you recall who that was? 12 A. No. I just remember that it was a relatively 13 small pharmaceutical company. 14 Q. Okay. Now, have you in the past done work for 15 industry apart from the testimony of the cases that you've 16 worked on? 17 A. Yes. 18 Q. Have you done work for the American Petroleum 19 Institute? 20 A. I have done two things that I can recall for API. 21 Q. What are they? 22 A. One was I wrote or I coauthored a chapter in a 23 book or monograph that they produced, and the other was at 24 their request I attended a meeting of their executive body 25 to discuss certain issues with them regarding time trends 16 1 in cancer. 2 Q. Okay. We'll talk about these. What was the 3 subject of the chapter in the book? 4 A. The chapter was in effect what is the current 5 state of knowledge regarding, and based on the 6 epidemiologic information, the status of gasoline as a 7 human carcinogen. And, in fact, particularly it might 8 have been limited. I'm not sure now. It might have been 9 limited to unleaded gasoline. 10 Q. And in what book was that published? Do you 11 recall? 12 A. Well, again, if we had my CV, it would be cited 13 there. 14 Q. Very well. We'll wait for your CV. Okay. Now, 15 regarding the meeting of the executive body regarding time 16 trends in cancer, what was this executive body, according 17 to your understanding? 18 A. Mr. Metzger, I was about to say my understanding 19 is a little fuzzy now, but certainly the CEO of the 20 institute was there. There were perhaps seven or eight 21 other people. As I recall, three or four of these people 22 were credentialed in science, and the other three or four 23 were, let's say, using the term generally, policy makers 24 and advisors. 25 Q. Who were they? 17 1 A. You mean their names? 2 Q. Yes. 3 A. I don't remember the names. 4 Q. Any of them, the scientists? 5 A. I don't remember any of the names, not even the 6 CEO. 7 Q. Was any paper prepared regarding this meeting? 8 A. No. 9 Q. What was the general thrust of the advice that 10 you gave the committee? 11 A. I didn't give them any advice. 12 Q. Did they ask you anything? 13 A. Did they ask me anything? Yes. They had asked 14 me beforehand to come and make a presentation along 15 certain lines. 16 Q. And you did that? 17 A. Yes. 18 Q. What was the subject of your presentation? 19 A. They had heard that I had said -- in fact, I had 20 said it at a meeting of the National Cancer Advisory 21 Board, and I'm sorry if I didn't mention that in response 22 to your previous questions. I'm not sure whether that 23 would have qualified or not. 24 Q. That's okay. 25 A. That I had said that we were soon to experience a 18 1 downturn in the overall cancer mortality rate and various 2 consequences of that and the reasons for it, and they 3 wanted to hear more about that. 4 Q. What are the consequences you're referring to? 5 A. The extension of life among adults. 6 Q. Okay. Anything else? 7 A. No. 8 Q. And the reasons for it? 9 A. The reason, there being two principal reasons. 10 One is the plateauing -- it hadn't happened yet at the 11 time, you understand, but the prediction of the plateau in 12 mortality rates from lung cancer and the -13 (Telephone interruption.) 14 BY MR. METZGER: 15 Q. You were saying plateauing of morality from lung 16 cancer? 17 A. And advances in treatment and diagnosis and 18 treatment or let's say medical care in general. 19 Q. Is there anything else that you have done over 20 the years for the American Petroleum Institute that you 21 can think of? 22 A. No. 23 Q. Have you ever -24 A. Well, wait a minute. I do remember a third 25 thing. Unfortunately, I don't remember what it was. I 19 1 just remember that it existed. I did go to their 2 headquarters in New York and did attend a roundtable 3 discussion of some sort. I don't remember what the issue 4 was. 5 Q. Did you ever receive any contracts or have any 6 contracts with the American Petroleum Institute? 7 A. I certainly don't have any now, and for the three 8 instances that I have mentioned I was paid. I don't 9 believe it was under contract but, rather, that I simply 10 bill them after the fact. 11 Q. So your best recollection is you've never had any 12 contracts with the American Petroleum Institute? 13 A. That is correct. 14 Q. Approximately how many contracts have you had 15 with oil companies? 16 A. I need to ask a question of clarification. When 17 you say how many have I had, do you mean that were 18 personal with me in a private capacity or with the 19 university and related to work in which I was either the 20 principal or a significant participant? 21 Q. Either of those two and, also, of any contracts 22 with any consulting organizations with which you have been 23 affiliated. 24 MR. AMUNDSON: The latter might be a little 25 vague, but go ahead if you can answer the question. 20 1 THE WITNESS: Let me try to be systematic about 2 it. As far as contracts with me, I actually recall only 3 one. That was with Texaco perhaps some 15 or so years 4 ago. 5 BY MR. METZGER: 6 Q. Regarding what? 7 A. It was regarding a risk assessment for benzene 8 and leukemia, and it resulted in a publication that 9 appears on my CV and which acknowledges that support. 10 With regard to the university, there were three 11 or four contracts for our research in which the university 12 was actually the contracting party, not me. And two or 13 three of these were with the Shell Oil Company. I'm 14 sorry. Did the question relate to oil companies? 15 Q. Oil companies or petrochemical companies. I'm 16 not limiting it to Shell Oil. It could also include 17 Shell Chemical, for example. 18 A. Well, actually, when I said Shell Oil, I perhaps 19 should have said Shell Oil or Chemical. It's a 20 distinction I don't keep very clear in my mind. 21 Q. Nor do I. 22 A. There was at least one with a company which at 23 the time was called Ciba-Geigy, now known as Novartis. 24 There was one with an entity whose name I cannot recall, 25 but I can tell you the spirit of it, and that is it's a 21 1 manufacturers' trade association of the synthetic rubber 2 producers. That's all that I recall. 3 Q. Okay. Could you tell me approximately regarding 4 the contract that you personally had with Texaco what the 5 funding of that was? 6 A. I really can't remember. 7 Q. Can you estimate? Was it five figures or six 8 figures or seven figures? 9 A. By "five figures" you mean under $100,000? 10 Q. Yes. 11 A. Yes. It was under $100,000. In fact, it was 12 probably, as I recall, in the vicinity of $10- to $15,000. 13 But I would point out that that was not all paid to me. 14 There were two other participants in that. 15 Q. And the contracts that you had with Shell Oil, 16 what was the funding for those? 17 A. Again, I want to point out that I did not have 18 these contracts. 19 Q. The university. 20 A. Those contracts would have been for six figures, 21 that is in excess of 100,000 and less than one million, 22 and, in fact, much closer to 100,000 than to one million. 23 But I was not the principal investigator in those, and I 24 really don't recall the budget figures. 25 Q. Okay. 22 1 A. I'd like to mention another one just so that it 2 doesn't appear later that I was not forthcoming. There 3 was also one with Amoco Company, which was I believe in 4 the vicinity of $75,000. 5 Q. Were the contracts with Shell Oil regarding 6 benzene? 7 A. Two are them were, in fact, primarily focused on 8 benzene and were for the conduct of a retrospective 9 follow-up study or case control study of leukemia in one 10 of their refineries, specifically the Wood River refinery. 11 And that work led to two or three publications which are 12 included in my CV. 13 Q. And the other one? 14 A. The other Shell? 15 Q. Yes. 16 A. That one was not focused on benzene. As I 17 recall, it was primarily concerned with pesticides which 18 had been manufactured at a facility that Shell -- that was 19 actually owned by the United States Government but 20 operated for the United States Government by Shell. And I 21 don't think it was focused on any particular chemical, but 22 on the health of the work force. 23 Q. Did that result in a publication? 24 A. Yes. 25 Q. And that's on your CV? 23 1 A. Yes. 2 Q. The Amoco consultation, what was that regarding? 3 A. That related to a perceived outbreak of brain 4 cancer at a research and development facility that Amoco 5 ran in a city that's a suburb of Chicago. Its name 6 escapes me right now. 7 Q. Naperville or something. 8 A. It is Naperville, yes. 9 Q. And the synthetic rubber producers, what was that 10 about? 11 A. That was primarily focused on butadiene. 12 Q. And did that result in a publication? 13 A. That work which has been renewed now several 14 times, so the span of time is probably close to 12 years, 15 has resulted in a number of publications, perhaps four or 16 five. I think I am included in the authorship of only one 17 or two of those, and yes, they would be on the CV. 18 Q. Did these publications explore hematopoietic 19 malignancies? 20 A. When you say "these publications," I'll take it 21 to mean all of the ones I've mentioned, and I can answer 22 yes with the exception of the Amoco. 23 Q. I'm talking about the synthetic rubber ones. 24 A. The principal focus was on what I'll call LHC, 25 lymphatic hematopoietic cancer. 24 1 Q. And was that also true of the Ciba-Geigy? 2 A. I'll need to think for a minute about that one. 3 The answer is no. 4 Q. Okay. Do you recall what that was about 5 generally? 6 A. It was primarily focused on two things. One was 7 adverse outcomes of pregnancy in the female employees, and 8 secondly on the health of the work force in general. 9 Q. Was there a suspect agent that you recall? 10 A. The suspect agent was a category of compounds 11 called triazenes. 12 Q. Could you estimate for me the funding for the 13 projects that you consulted on, that the university had 14 and on which you consulted for the synthetic rubber 15 manufacturers? 16 A. I really don't know what the budget has become. 17 I don't even recall what it was in the first few years. I 18 was never the principal investigator on it. 19 Q. Do you know whether it was a six- or seven-figure 20 contract? 21 A. Anything I say would be a guesstimate, but I 22 would say it would probably have run somewhere in the 23 vicinity of $75,000 to $100,000 per year, each of the 24 contracts running for several years. And I want to just 25 make it clear that you used the expression in that 25 1 question that I had consulted for. I was not a 2 consultant. I was a collaborator. 3 Q. Fair enough. 4 A. And I just want to make it clear that I was not 5 paid. That is my university was reimbursed for my salary. 6 Q. When you've done these projects and the 7 university had the contract, has your salary reflected any 8 type of compensation, remuneration, or bonus due to the 9 amounts that these contracts brought into the university? 10 A. Well, certainly not a bonus. There is no bonus 11 in the university setting, at least not that I've ever 12 received or known of. Whether or not my salary was 13 influenced -- let me phrase it this way. 14 Whether or not the person who decided whether or 15 not I would receive increases in pay took this into 16 consideration, I can only say the following: For many of 17 these years I was the head of the department, so the 18 circumstance was that I was in a position to recommend my 19 own salary. And all I can say is that the recommendation 20 that I made at least in those years, which was about 15 of 21 the 20 or so years that I was on faculty at UAB, reflected 22 my perception of my worth to the department, which 23 included teaching, mentoring, particularly young faculty, 24 and also research and, yes, the amount of research funding 25 that I thought I was at least in part instrumental in 26 1 bringing into the department. So I don't recall that my 2 recommendation to my superior, who would have been the 3 dean of the school, was ever not accepted, so I guess the 4 short -- that's the long answer. Maybe the short answer 5 is yes. 6 Q. Fine. I understand. Thank you. What about have 7 you ever been a private consultant through a consulting 8 firm? 9 A. I have I guess the word would be helped out or 10 participated in projects that were being done by 11 consulting firms, yes. 12 Q. And have you had any ownership interest in any of 13 these consulting firms? 14 A. I had an ownership interest in one of these firms 15 for some time, yes. 16 Q. What was that firm? 17 A. That firm, which is no longer in existence, was 18 called the New England Epidemiology Institute. 19 Q. Okay. What types of research or projects did 20 that organization do? 21 A. Just for clarity, do you want to know what they 22 did, or do you want to know in which ones I participated? 23 Q. We'll take the ones you participated in. 24 A. I participated in one -- let me start over again. 25 I participated in many in which they asked me to review 27 1 the report or work product that had been prepared by their 2 staff, but I had no direct involvement in the actual 3 procurement of the contract or the conduct of the 4 research. I did have an active role in one that related 5 to the projection of the number of cases that would be 6 filed against the Johns Manville Company as a result of 7 asbestos exposure. 8 I also participated -- well, no. I have to 9 retract that. I don't recall another one. The company as 10 a whole did epidemiologic research of all sorts. 11 Q. I'm sorry? 12 A. The company in a larger sense -- you asked what 13 the company did as well as what I did. The company 14 provided epidemiologic services of many types. 15 Q. That was this New England Institute? 16 A. Yes. 17 Q. Are there any other consulting firms that you've 18 been affiliated with? 19 A. I don't like to use the word "affiliated with" 20 when the relationship was essentially a strictly ad hoc 21 relationship. But the answer is yes, and the company is 22 Exponent. 23 Q. And what type of work have you done for Exponent? 24 A. I have done two things for them. One is that I 25 participated in a committee which they convened on the 28 1 subject of the appropriate classification of 2 carcinogenicity to humans of dioxin. That also resulted 3 in a publication that is listed in my CV. And the other 4 project was the participation in an advisory group which 5 was pulled together for the purpose of evaluating research 6 that had been conducted by a governmental agency. I'm 7 sorry I've forgotten the exact name of it, but it relates 8 to occupational health in Scotland. 9 Q. Have you ever done any consulting for the 10 Chemical Manufacturers' Association or the Manufacturing 11 Chemists' Association or I think it's now called the 12 American Chemistry Council? They don't like the name 13 "Manufacture" in there any more, I guess. 14 A. And the first part of the question? 15 Q. Have you ever done any consulting for that 16 organization? 17 A. I don't know that it would be called consulting, 18 but I'll tell you what the activity was. I have on 19 several occasions given talks to either their own 20 membership or to more general audiences at meetings that 21 they had convened. 22 Q. Talks regarding what? 23 A. I really don't recall. 24 Q. About how many talks? 25 A. Two that I recall. 29 1 Q. Were they given before any certain committees of 2 the CMA? 3 A. One was given to a group of people, all of whom 4 were either members of the CMA, if there is such a thing 5 as that, or scientists or executives of the companies that 6 support the CMA. But I don't recall the subject. 7 Q. All right. Well, let's start talking about this 8 case, and we'll get back to some of these other things 9 when we have your CV and the case list. You understand 10 that you've been engaged as an expert in this case, and 11 you've been asked to form opinions on certain topics. 12 True? 13 A. I've been asked to form opinions? 14 Q. Have you not been asked to form opinions on 15 certain topics? 16 A. Yes. 17 Q. Can you tell me, please, what the opinions are 18 that you've formed regarding the present case. 19 A. If I recall correctly, there is a document that 20 states what I will be or may be asked to testify about. 21 Is that the same thing that we're talking about? 22 Q. Well, not really. I assume that was prepared by 23 counsel. I'd like to know what your opinions are as 24 opposed to what counsel says you might talk about. 25 MR. AMUNDSON: I think what he's really asking 30 1 for is if you could give him kind of a highlight of your 2 table of contents of the various subjects on which you 3 will be opining at trial. Just kind of a quick hit list, 4 and he will go through each of your opinions and ask you 5 more definitive opinions. 6 BY MR. METZGER: 7 Q. That's true. I'll ask you for the foundation, 8 the basis, and the reasons. But first I'd like to get the 9 landscape of what you're going to be testifying about. 10 A. I think some are fairly obvious. Some are not at 11 all obvious to me. But I suppose I will be asked what I 12 consider to be the causes of the myelodysplastic 13 syndromes. I suppose I would be asked and would venture 14 an opinion as to whether or not the MDS's are caused by 15 benzene. That might incorporate any of a number of 16 subopinions regarding dose response and the like. 17 I might be asked to opine as to what kind or 18 which type of MDS Mr. Workman had. I might be asked and 19 would opine whether or not he had acute myelocytic 20 leukemia, hereafter AML, and I might be asked and try to 21 be responsive with an opinion as to whether or not his 22 particular condition was caused by his particular exposure 23 to benzene or, possibly as a variant of that opinion, 24 whether or not it was caused by the benzene that would 25 have been supplied by Mr. Amundson's client. I don't know 31 1 whether I will be asked about the possible role of smoking 2 in Mr. Workman's illness. 3 Q. Okay. Any other general topics, or should I 4 start exploring these? 5 A. I can't think of any more general topics. 6 Q. Okay. Well, let me ask you, then: What do you 7 consider to be the known causes of myelodysplastic 8 syndromes? 9 A. I don't know of any. 10 Q. Well, have you conducted any literature searches 11 to ascertain the literature that pertains to the etiology 12 of the myelodysplastic syndromes? 13 A. Yes. In fact, about six or seven years ago, 14 granted that may be a little out of date, I actually 15 published a review of the epidemiology of the MDS's. On 16 that particular one we wouldn't necessarily have to wait 17 for the CV if you're interested in it because I brought a 18 copy along. Since then I have maintained a familiarity 19 with the literature on the epidemiology and, hence, I 20 think the causes or suspect causes of MDS. 21 Q. Well, could I see the review article that you're 22 speaking of? 23 A. Sure. It was actually an invited talk that I 24 published. 25 Q. Okay. And you're referring to the article in 32 1 "Leukemia Research" which we'll mark as Exhibit A. 2 (A copy of the aforementioned document was 3 marked by the court reporter as Plaintiffs' 4 Exhibit+ A for identification; attached hereto.) 5 BY MR. METZGER: 6 Q. And who invited you to give this talk? 7 A. Dr. John Bennett. 8 Q. And did you know Dr. Bennett before this? 9 A. Yes. 10 Q. How did you know him? 11 A. I had met him previously at several scientific 12 meetings. I also met him on at least one occasion at 13 Wood River. 14 Q. And that was in connection with Shell's 15 investigation of the leukemias at that facility on which 16 you were engaged as a consultant, and Dr. Bennett was 17 engaged as a consultant? 18 A. No, it wasn't. 19 Q. Please tell me about it. 20 A. I think that that particular meeting where 21 John Bennett and I -- in which John Bennett and I both 22 participated, and there were other people as well, was 23 actually on the issue of MDS. 24 Q. And who participated in that meeting? 25 A. The participants were Dr. Sally Cowles, 33 1 Dr. Elizabeth Delzell, Dr. John Bennett, me. There were 2 several technical people who were employed at the 3 Wood River refinery and one or two management people as 4 well. 5 Q. Did Dr. Bennett, to your knowledge, review any of 6 the slides of the MDS and AML cases out of Wood River? 7 A. I have no knowledge of that. 8 Q. Was that your first meeting with John Bennett? 9 A. No. I had met him several times previously. 10 Q. At what? 11 A. At scientific meetings. 12 Q. Such as? 13 A. Well, we're talking about a 20- or 25-year time 14 span, and I just don't recall. He was a person who when I 15 met him at this meeting I recognized and walked directly 16 up to him and said, "Hello, John. How are you?" So I had 17 met him before several times. 18 Q. Had you met him at the meetings of the American 19 Society of Hematology? 20 A. No. 21 Q. Had you met him at any other medical meetings? 22 A. I believe I met him on at least one occasion at a 23 meeting of the Society for Epidemiologic Research. 24 Q. Any other meetings that you recall meeting him 25 at? 34 1 A. No. I mean, there were other meetings, but I 2 don't recall which ones they were. 3 Q. Before you met with him at Wood River, had you 4 met with him in connection with any other benzene leukemia 5 clusters or investigations? 6 A. No. 7 Q. John Bennett, I believe, had once prepared a 8 report to the American Petroleum Institute arguing against 9 medical monitoring of benzene-exposed workers. Did you 10 have any involvement in that? 11 A. The meeting at Wood River was for the purpose of 12 discussing that issue. I don't know -- I don't recall 13 whether his report -- and, by the way, I don't have a 14 recall, a recollection of that report. I don't know 15 whether that report preceded or followed that meeting. 16 Q. I'm speaking actually of a report that he 17 prepared for the American Petroleum Institute many years 18 earlier than Wood River. 19 A. May I ask in what year or about what year that 20 report was? 21 Q. I'd have to dig it out. It was around the time 22 of the Benzene Emergency Temporary Standard, so late '70s. 23 A. Late '70s. Yes. That would be many years before 24 the Wood River meeting. And you're asking whether or not 25 I influenced him or had any discussions with him about 35 1 that report? 2 Q. Yes. 3 A. No. 4 Q. You've never seen or heard of that report? 5 A. I have no recall of ever seeing it. 6 Q. Okay. Well, let's see. When did you first 7 conduct a search of the literature to investigate causal 8 associations for myelodysplastic syndromes? 9 MR. AMUNDSON: Just for the record, if I can have 10 a continuing line on this, the term "causal associations" 11 is objected to as vague and ambiguous and contradictory. 12 You can answer or respond to that question in your own 13 words. 14 MR. METZGER: He is an epidemiologist. He can 15 certainly deal with it. 16 MR. AMUNDSON: I'm sure he can. 17 THE WITNESS: I would say that I did not do ever 18 a literature search that I would have characterized as 19 oriented towards -- in any direct sense towards the causes 20 or causes of MDS but, rather, was directed towards the 21 epidemiology of MDS, which I intend to mean as a broader 22 subject. 23 BY MR. METZGER: 24 Q. When did you first do literature search regarding 25 the epidemiology of MDS? 36 1 A. May I see that review article? The first search 2 probably would have been done in about 1994, this paper 3 being published in 1995 but actually is an elaborated 4 version of a talk that I gave in 1944. 5 Q. '94? 6 A. What did I say? 7 Q. '44? 8 A. 1994. 9 Q. Now, incidentally, did you receive any funding or 10 compensation for this publication or the presentation that 11 you gave? 12 A. I recall with regard to this -- may I look at it 13 to refresh my memory? I recall certainly receiving 14 reimbursement for my expenses in going to Chicago to make 15 the presentation. I don't recall -- I don't believe I was 16 compensated in any other way. 17 Q. Was the university, to your knowledge? 18 A. No. 19 Q. Now, would you happen to have -- when you did 20 this search in 1994, did you do that using on-line data 21 bases? 22 A. No. 23 Q. How did you do that research, that search? 24 A. It actually was done by a graduate student 25 working for me. 37 1 Q. Who is the graduate student? 2 A. He is one of the co-authors on the report. His 3 name is Warren Sateren. 4 Q. Do you know how Mr. Sateren did the literature 5 search? 6 A. He did not use any kind of computerized data 7 base. He essentially worked from a recent textbook and 8 worked back from that. 9 Q. What textbook did he use? 10 A. I think the one that he used was the one called 11 "Blood." 12 Q. By Jandl? 13 A. Yes. 14 Q. And that was the 1990s? No, it couldn't have 15 been. Which edition of Jandl did he use? 16 A. I don't remember. It would have been whichever 17 one was current at the time. 18 Q. I think the one that I have is '96, which would 19 post date this. Okay. And did Mr. Sateren come up with a 20 list of articles from that method? 21 A. Yes. He came up with a fairly extensive list. 22 Q. Of approximately how many articles? 23 A. I don't remember. 24 Q. Do you have that list? 25 A. No. The publication includes a list of the 38 1 references that would actually have been included in it. 2 Q. Okay. Were there any other articles on that list 3 other than those included in this publication? 4 A. Oh, yes. 5 Q. Could you tell me what they are? 6 A. No. 7 Q. Have you ever done an on-line search? 8 A. You mean on this subject or in general? 9 Q. In general. 10 A. Yes. 11 Q. And do you find the on-line search to be helpful 12 in being sure to obtain the literature existing on topics? 13 A. Yes. 14 Q. Did you tell Mr. Sateren that he should do an 15 on-line search when he did this? 16 A. No. 17 Q. Why not? 18 A. I felt that the first thing was that I wanted to 19 see what he would do. And when I got the list that he 20 developed, I looked at it, and I looked in a textbook, and 21 I wanted to see whether or not there was likely to be any 22 significant omissions from it. And I decided there was 23 none, and so I selected from his list the papers that I 24 thought would be helpful to our writing this review. 25 Q. And what was the textbook that you referred to? 39 1 A. It was a textbook by Schattenfeld and Fraumeni 2 called "Cancer Epidemiology and Prevention." I might have 3 also looked -4 Q. That was the first edition of that? 5 A. No. But let me finish, if I may. 6 Q. I'm sorry. 7 A. I might have also looked in both "Blood" and in 8 this book, "Clinical Hematology." 9 Q. Wintrobe? 10 A. Yes. 11 Q. And the Schattenfeld and Fraumeni book, was that 12 the first edition? 13 A. No. It would have been the edition prior to the 14 current one. And I can't tell you what number that would 15 be. I think the current one is perhaps Edition 5, so that 16 would have been Edition 4. 17 Q. What is the title of this textbook? 18 A. It's called "Cancer Epidemiology and Prevention." 19 Q. Right. Okay. And first of all, is MDS a cancer? 20 A. No. 21 Q. And can you tell me what you would expect to find 22 regarding myelodysplastic syndrome in Schattenfeld and 23 Fraumeni's textbook? 24 A. Well, now, wait a minute. When you ask me what I 25 would expect to find, do you mean as if I had never gone 40 1 there before? 2 Q. No. Specifically regarding MDS, since it's not a 3 cancer. 4 A. The textbook includes a number of conditions 5 which might be labeled preneoplastic or paraneoplastic 6 conditions, just as does the book "Clinical Hematology," 7 for example. So I'm not sure. When you ask me that 8 question what I would expect to find, I guess the answer 9 is that I would expect to find some level of discussion 10 and description of the epidemiology of the conditions 11 known as the MDS's, and I did. 12 Q. Okay. Do you recall specifically whether you 13 consulted Wintrobe's "Clinical Hematology" in doing this 14 work? 15 A. Well, unfortunately, my memory of "Clinical 16 Hematology" would be very difficult to isolate from my 17 current perceptions of what's in the book, which is a 18 different edition. So I think the answer to your question 19 is no. 20 Q. Do you recall specifically whether you consulted 21 Jandl's "Blood" in the course of this literature search? 22 A. I can't say for sure that I did, but I believe I 23 did. 24 Q. Do you recall any other textbook or any other 25 means by which you familiarized yourself with the extent 41 1 literature regarding the epidemiology of myelodysplastic 2 syndromes at the time in 1994? 3 A. No. 4 Q. Since 1994, have you ever done a computerized 5 data base literature search regarding epidemiology of MDS? 6 A. No. 7 Q. Have you ever done any other noncomputerized data 8 base search for literature of the epidemiology of MDS? 9 A. I'm not sure whether the answer to the question 10 is yes or no. Maybe I should describe what I have done. 11 Q. Sure. 12 A. I do try to stay current with the literature on 13 the epidemiology of LHCs, and as part of that one of the 14 things that I do is look at the references that accompany 15 the papers that I get. And if one came to my attention 16 which I did not have and which I thought might be of 17 interest to me, either regarding the MDS's or one of the 18 LHCs, then I would simply obtain that. 19 Q. And do you have a list of those articles that you 20 obtained? 21 A. I don't keep such list, no. 22 Q. Can you identify them for me? 23 A. When you say "identify" them to you, do you mean 24 can I provide you with a list of the papers? 25 Q. Identify them by author and year, somehow 42 1 identify them. 2 A. It's not the nature of the identification. It's 3 the category. What is it that we're referring to here; 4 the literature on leukemia or the literature on MDS or the 5 literature on MDS that I got in that particular way? 6 Q. We were talking specifically about the 7 epidemiology of MDS. That's what I'm talking about. 8 A. And you want me to tell you, if I can, the 9 citations that are relevant? 10 Q. I'm not asking you to determine what's relevant. 11 I'm asking if you can identify for me citations simply by 12 author, preferably author and year, of epidemiology 13 studies concerning myelodysplastic syndrome that you've 14 become familiar with since the publication of your article 15 in "Blood" and the research that you did for that in 1994. 16 A. There are only two papers that come to my mind. 17 There are other papers, but I don't -- I'm not in a 18 position to be able to tell you who authored them. 19 Q. Fine. 20 (Telephone interruption.) 21 MR. METZGER: Let's go back on. 22 Q. Dr. Cole, you were about to tell me of two papers 23 that you recall regarding the epidemiology of MDS which 24 you reviewed since you prepared your publication in 25 "Blood" in 1995. 43 1 A. Actually, I think it's twice you mentioned the 2 journal as "Blood." It's actually "Leukemia Research." 3 Q. I'm sorry. It is "Leukemia Research." You're 4 right. 5 A. I don't recall whether either of these papers was 6 specifically or even primarily oriented towards MDS, but I 7 do recall that there was information in them pertaining to 8 MDS. And one is a paper by Hayes and others, and the 9 other one is by Yin and others, and both reflect 10 epidemiologic research done in China. 11 Q. Are there any other epidemiology studies 12 concerning MDS that you have reviewed since the research 13 that you did for your article in "Leukemia Research" in 14 1995? 15 A. There are others, but I don't recall them at 16 present. 17 Q. And have you reviewed any of those for purposes 18 of this case? 19 A. May I take a minute to look through my file? 20 Q. Certainly. 21 A. (Witness peruses document.) 22 There is one other paper for a fact I reviewed in 23 connection with this case. It stands out only because it 24 was provided to me yesterday in a package of materials by 25 Mr. Amundson. Since I got it, I looked at it, and I 44 1 believe there is another one in here. 2 Q. Are you referring to the Albin paper? 3 A. Yes. Do you want me to cite it for the record? 4 Q. Perhaps -- I'll do that. You're referring to the 5 Albin paper from 2003 "Cytogenetic and Morphologic 6 Subgroups of Myelodysplastic Syndromes in Relation to 7 Occupational and Hobby Exposures." Correct? 8 A. Yes. That's the only other one -- well, it's 9 actually the only one that I specifically reviewed for 10 this case. I think I mentioned the other two pages in 11 connection with literature that I have reviewed since my 12 own review. 13 Q. Let's just take a moment now and deal with some 14 of the documents. There is a collection of papers 15 including the Albin paper which you just pulled out of an 16 envelope. The envelope says Philip Cole, M.D., as the 17 recipient, and the sender is R.G. Amundson, Wood Smith 18 Henning & Berman. Correct? 19 A. Yes. 20 Q. And are these all papers which Mr. Amundson gave 21 you yesterday to review before your deposition? 22 A. I don't know. I have to look through it and see 23 whether or not some things that I brought with me have 24 gotten mixed in or things that he did send have gotten 25 pulled out. 45 1 Q. Please take a look and answer that. 2 A. (Witness peruses document.) 3 Let me begin my answer to your question by saying 4 that everything that I'm holding in my hand was provided 5 to me yesterday by Mr. Amundson. However, a number of 6 things here were previously available to me. 7 Q. Let's talk about them, if I might. 8 A. Okay. Could I -- it might help if I finish by 9 going through this to see whether or not there are any 10 things in here that actually came with this pile. 11 Q. Oh, sure. Please do that as well. 12 A. (Witness peruses document.) 13 Okay. There is not. 14 Q. Okay. Then let me just ask you these questions. 15 Is yesterday the first time that you saw the article by 16 Albin? 17 A. No. 18 Q. You had reviewed that previously? 19 A. I hadn't reviewed it. I had seen it. 20 Q. You had seen it, but you had not reviewed it 21 previously? 22 A. That's correct. 23 Q. So the first time you reviewed it, actually 24 studied it, was yesterday or today after Mr. Amundson 25 provided it to you. Correct? 46 1 A. I wouldn't say I have studied it. I have 2 reviewed it. 3 Q. You have reviewed it. Fair enough. The article 4 by Sandler "Cigarette Smoking and Risk of Acute Leukemia," 5 JNCI '93, had you seen that before yesterday? 6 A. Seen it, reviewed it, and studied it. 7 Q. You did that at about the time that it was 8 published? 9 A. I really don't recall. 10 Q. The article by Korte, K-o-r-t-e, in 11 "Environmental Health Perspectives" entitled "The 12 Contribution of Benzene to Smoking-Induced Leukemia," had 13 you seen that before yesterday? 14 A. Yes. 15 Q. And had you studied that before yesterday? 16 A. Yes. 17 Q. There is an abstract by Marsh, "Mortality 18 Patterns Among Petroleum Refinery and Chemical Plant 19 Workers," "American Journal of Industrial Medicine 1991." 20 Had you seen that before yesterday? 21 A. Well, I have not actually seen the abstract in 22 isolation before. I have that paper. 23 Q. And have you studied that paper before? 24 A. Yes, yes. 25 Q. There is an excerpt from the report to the 47 1 scientific review panel on benzene prepared by the 2 California Department of Health Services in 1984. Had you 3 seen that before yesterday? 4 A. I have seen the whole report. 5 Q. There is something printed off the Internet on 6 Polycythemia Vera. Does that have anything to do with 7 this case in your view? 8 A. Not that I could tell. 9 Q. Nor could I. There is an article by Madl and 10 Paustenbach, M-a-d-l, "Airborne Concentrations of Benzene 11 Due to Diesel Locomotive Exhaust in a Roundhouse." Had 12 you seen that article before yesterday? 13 A. Yes. 14 Q. And had you studied that before yesterday? 15 A. Yes. 16 Q. What was the connection that you studied that 17 article? It's not an epidemiology article, is it? 18 A. Yeah, I think it is. It is not epidemiology per 19 se, but it is highly relevant to epidemiology, I believe. 20 Q. What was the context that you came across that 21 article? 22 A. I have been involved as an expert witness in a 23 number of cases in which the putative cause of a disease 24 is diesel exhaust or diesel fuel exposure, and it is in 25 that context. And let me just say -- excuse me -- I 48 1 should have acknowledged that in response to one or more 2 of your previous questions. I have never actually been 3 deposed in a diesel case. 4 Q. I see. How many such cases have you consulted 5 on? 6 A. Four that I can recall. 7 Q. Are all of these consultations on behalf of 8 industry? 9 A. Yes. 10 Q. Do you recall the names of the cases in which you 11 consulted? 12 A. When you say "the name," you mean the last name 13 of the first plaintiff? 14 Q. Yes. Some way of identifying it. 15 A. I do recall some of them. 16 Q. Please identify them. 17 A. Okay. One I know as the case of Alexander. I 18 think it's versus Norfolk Southern Railroad. That case 19 has recently been settled. The next one is Dampier, 20 D-a-m-p-i-e-r, also versus Norfolk Southern. The next 21 one -- and I'm actually going back in time -- is Shapona, 22 S-h-a-p-o-n-a. I can't remember who the defendant was. I 23 think it might have been a city. He was a firefighter. 24 Q. Can you remember the fourth? 25 A. The fourth I don't remember the name, but the 49 1 defendant I do recall was also Norfolk Southern. 2 Q. In these cases did you prepare written reports? 3 A. In the last one no. Now I'm coming forward. In 4 Shapona, yes; in Dampier, yes; in Alexander, no. 5 Q. Do you know whether -- strike that. Were these 6 reports given to anyone other than the defense attorney 7 who had engaged you? 8 A. I have no idea. 9 Q. Have you prepared any publications regarding -10 which derive from any of these reports? 11 A. No. 12 Q. With respect to these four cases, were they all 13 lung cancer cases? 14 A. No. 15 Q. Were any of them leukemia or MDS cases? 16 A. No. 17 Q. The next article in this stack by Pogoda "Smoking 18 and Risk of Acute Myeloid Leukemia," did you see that 19 article before yesterday? 20 A. Yes. 21 Q. And did you study that before yesterday? 22 A. Yes. 23 Q. There is an excerpt from -24 A. It's a textbook. 25 Q. Yes, it is. What's the name of the author? 50 1 A. The principal editor is DeVita. 2 Q. Right. Of course. This is the 5th edition from 3 1997 regarding myeloid leukemias. Had you read this 4 excerpt from DeVita before yesterday? 5 A. Excuse me. May I look at it just a moment? 6 Q. Certainly. 7 A. The reason I asked to look at it is I think this 8 is the 6th edition, and you said 5th. But the answer is 9 no, I have not looked at that material in it before. It 10 does not say 6th edition. 11 Q. I'm sorry. I must have misspoken. There is 12 attached to that stapled to it a copy of Schnatter's 13 article "Determination of Leukemogenic Benzene Exposure 14 Concentrations." Have you seen that article before? 15 A. Oh, yes. 16 Q. And did you study that before yesterday? 17 A. Yes. 18 Q. There is an abstract by Nagean, N-a-g-e-a-n, on 19 Polycythemia Vera. We'll put that in an applicable pile. 20 There is an excerpt from the toxicological 21 profile for benzene, 1997, by the ATSDR. Have you seen 22 that publication before yesterday? 23 A. Yes. The whole publication. 24 Q. And did you study it? 25 A. Yes, I have studied it. 51 1 Q. There are some photographs here of the facility. 2 I'm sure you didn't see those before yesterday. Right? 3 A. That is true. 4 Q. There is an article by Fedoruk, et al., 5 "Measurement of Volatile Organic Compounds Inside 6 Automobiles." Had you seen that article before yesterday? 7 A. No. 8 Q. Have you studied that article? 9 A. No. 10 Q. There is the ACGIH. I assume this is the TLV 11 documentation for benzene. Have you seen that before? 12 A. May I have a look at it when you're through? 13 Q. This is actually copyright 2001. I will see 14 where it ends here. 15 A. (Witness peruses document.) 16 I can't say that I have seen this particular 17 version before. 18 Q. All right. There is a deposition summary of 19 Jimmy Morrison, M.D., and also one of Don Kuchenbecker. 20 Have you read those? 21 A. No. 22 Q. There is a health hazard evaluation report by 23 NIOSH with the Costa Mesa Fire Department. Have you seen 24 that before? 25 A. No. 52 1 Q. There is another copy of Madl's. 2 A. May I see that, please? 3 (Witness peruses document.) 4 It is a copy. 5 Q. There is a copy of the declaration of 6 Dr. Brautbar and apparently his -- oh, no. Yes, and a 7 minuscript of his deposition. Have you read either of 8 those? 9 A. Both. 10 Q. And there is a minuscript, a rough version of 11 Fedoruk's deposition. Have you read that? 12 A. Okay. Is that a minuscript? 13 Q. It's a rough version. It's not a minuscript. 14 It's a rough version. 15 A. And is your question have I read that? 16 Q. Yes. 17 A. The answer is yes. 18 Q. Could I see the other materials that you've 19 brought with you? 20 A. You want me to just give you the whole batch? 21 Q. Yes. And we'll talk about them. You have here a 22 table of "Tabular Values of 95 Percent Confidence Limit 23 Factors for Estimates of a Poisson-distributed Variable." 24 This is something that -- well, what is this? 25 A. This is a page from a textbook that I bring with 53 1 me to depositions because I have found that it often comes 2 in handy when a question of whether or not something is 3 statistically significant comes up, and it is a shortcut 4 way of getting confidence intervals. 5 MR. METZGER: Okay. Let's mark that as 6 Exhibit B. 7 (A copy of the aforementioned document was 8 marked by the court reporter as Plaintiffs' 9 Exhibit+ B for identification; attached hereto.) 10 BY MR. METZGER: 11 Q. At this point let me sign this one and give you a 12 check for $1,000 at least so you're not -- I'm not in debt 13 to you as of the present moment. 14 A. Are we on the record? 15 Q. I guess we are. I apologize. 16 A. May we go off the record? 17 Q. Surely. 18 (Discussion held off the record.) 19 MR. METZGER: Back on the record. 20 Q. There is an article here "Does Diesel Exhaust 21 Cause Human Lung Cancer?" By Tony Cox. Have you seen that 22 before yesterday? 23 A. Oh, yes. That was mine. I brought that. 24 Q. That was yours. 25 A. Yes. 54 1 MR. METZGER: Let's mark that as Exhibit C. 2 (A copy of the aforementioned document was 3 marked by the court reporter as Plaintiffs' 4 Exhibit+ C for identification; attached hereto.) 5 BY MR. METZGER: 6 Q. Okay. And you've also brought with you the 9th 7 edition, Volume 2, of Wintrobe's "Clinical Hematology," 8 which we're not going to mark as an exhibit. 9 A. Good. 10 Q. Are there any other materials that you have 11 brought with you regarding this case? 12 A. Yes. I think you didn't finish going through the 13 pile of stuff that I gave you. 14 Q. I'm sorry. No. I think I did. Oh, there's more 15 here. I apologize. You're right. There is an article by 16 Paolo Vineis. Is that how you pronounce his name? 17 A. Vineis. 18 Q. V-i-n-e-i-s. "Tobacco and Cancer: Recent 19 Epidemiological Evidence," JNCI current January 21, 2004. 20 And is this something that you just recently obtained or 21 that Mr. Amundson gave you. 22 A. No. He did not give it to me. I obtained it 23 myself about -- actually, I think it was faxed to me by 24 another attorney perhaps two weeks ago or so. 25 Q. It says Brown, McCarrol. Who are they? 55 1 A. That's a law firm in Texas. 2 Q. Have you done work with them before? 3 A. I've done work with them over the years, yes. 4 Q. And did you ask them if they had anything 5 regarding that might be helpful for this case? 6 A. No. 7 Q. How did it come to you? 8 A. The attorney who sent it is a Mr. George Butts, 9 and I have worked with him on a number of benzene and 10 leukemia cases, and he sent it because he considered it 11 relevant to that issue. 12 Q. Unsolicited? 13 A. Correct. Well, I don't know if solicited or 14 unsolicited is correct. He had sent me an e-mail asking 15 me if I had seen the paper, and, if not, if I would like 16 him to send it to me, and I answered no and yes to those 17 two questions. 18 MR. METZGER: We'll mark that paper as 19 Exhibit D. 20 (A copy of the aforementioned document was 21 marked by the court reporter as Plaintiffs' 22 Exhibit+ D for identification; attached hereto.) 23 BY MR. METZGER: 24 Q. And then there is a yellow sheet on top of it. 25 It says "NTPB Particulates and IARC 2A Limited in Humans," 56 1 and that's referring to the classification of diesel 2 exhaust as a carcinogen. Is that correct? 3 A. I would say not as a carcinogen, but it refers to 4 the classification assigned by those two agencies. 5 Q. Regarding diesel exhaust carcinogenicity? 6 A. Yeah, that's okay. 7 Q. Sure. Okay. Let me just ask you: Do you 8 consider diesel exhaust to be a human carcinogen? 9 A. No. 10 Q. Okay. Do you consider benzene to be a human 11 carcinogen? 12 A. I consider it to be a human leukemogen. 13 Q. Fair enough. And then there is also a letter 14 from Paul Lee with some notes, handwritten notes, and a 15 pathology report for Mr. Workman. Have you reviewed this? 16 A. Yes. 17 MR. METZGER: We'll mark that as Exhibit E. 18 (A copy of the aforementioned document was 19 marked by the court reporter as Plaintiffs' 20 Exhibit+ E for identification; attached hereto.) 21 BY MR. METZGER: 22 Q. Are there any other materials that you've been 23 provided by counsel for this case? 24 A. Yes. 25 Q. What are they? 57 1 A. They are a number of medical records and several 2 depositions including the deposition of Mrs. Workman. 3 Those are the only two categories of information that I 4 recall. 5 Q. Are you relying on any of those records for any 6 of your opinions in this case? 7 A. I rely upon the medical records. I rely to some 8 degree on the deposition of Mrs. Workman. 9 Q. Other than the diagnosis of MDS and the other 10 hematologic conditions reported in the medical records, 11 are you relying on the medical records for anything else? 12 MR. AMUNDSON: Let me just object that the brief 13 statement of diagnosis of MDS and other hematological 14 conditions is vague and ambiguous, misleading, and a 15 misstatement. But go ahead and answer the question. 16 THE WITNESS: May I ask what your last word was? 17 MR. AMUNDSON: And a misstatement. 18 THE WITNESS: And a misstatement. Okay. May I 19 ask to have the question read back? 20 BY MR. METZGER: 21 Q. Let me ask it this way: What are you relying on 22 the medical records for? 23 A. I rely upon the medical records primarily for two 24 things: One is the virtual certainty that Mr. Workman had 25 one of the myelodysplastic syndromes, the one usually 58 1 referred to as RARS. And I rely upon it, on them, in a 2 way which is a little difficult because it's the absence 3 of something. But I rely upon them for the failure of the 4 documentation of the existence of AML. 5 Q. So you've reviewed the medical records you were 6 provided. Correct? 7 A. Yes. 8 Q. And from your review of the records, Mr. Workman 9 never received a diagnosis of AML. Correct? 10 A. I could not -- although I found allusions to that 11 diagnosis and reference to it, I never found the 12 documentation of it. 13 Q. Well, do you have an opinion as to whether 14 Mr. Workman had AML? 15 A. The only opinion I have is that I have not seen 16 any documentation of that diagnosis. 17 Q. I'm asking you if you personally -- since you are 18 a medical doctor, I'm asking you if you personally have an 19 opinion whether he had AML or whether he did not have AML. 20 MR. AMUNDSON: Within reasonable medical 21 probability? 22 MR. METZGER: Sure. He is a medical doctor. 23 Q. I'm asking you whether you have an opinion, not 24 what your opinion is. 25 A. I believe I've answered this question. 59 1 Q. I don't know that you have. 2 MR. AMUNDSON: Go ahead and answer it again. 3 THE WITNESS: Let me answer it again. And if the 4 answer is not satisfactory, maybe we can work on it. 5 BY MR. METZGER: 6 Q. Let me interrupt you because I heard your answer. 7 What you said was you had an opinion that certain things 8 were referenced. I'm not asking you what's referenced in 9 the records. I'm asking you whether you have an opinion 10 as to whether Mr. Workman had AML. 11 A. Yes. 12 Q. What is your opinion? 13 A. No. 14 Q. Upon what do you base your opinion that 15 Mr. Workman did not have AML? 16 A. I would base it on two things -- three things. 17 First, I reviewed a very large amount of medical records, 18 and I found no documentation of this condition; and I feel 19 it is likely that if he were to have had this condition, 20 it would have been documented in those records. That's 21 No. 1. 22 No. 2, he had a condition known as RARS, which 23 very infrequently converts to a blast crisis, and there is 24 no evidence that that conversion occurred in this case. 25 Furthermore, I think that the use of the language AML to 60 1 describe the blast crisis of MDS is a shorthand commonly 2 used in the medical profession because the blast crisis 3 has the morphologic appearance of AML, but I am not 4 persuaded that the blast crisis of MDS is, in fact, AML. 5 The third reason, Dr. -- is it Upadhyaya. 6 MR. AMUNDSON: Upadhyaya I believe is how she 7 pronounces it. 8 THE WITNESS: This is a lady who gave a 9 deposition in this case. 10 -- commented, and I believe she was a treating 11 physician for Mr. Workman and was familiar with the 12 circumstances, his circumstances close to even if not 13 right at the end of his life. And she mentions that there 14 was no blast crisis and that, in her opinion, there was 15 not a so-called conversion to AML. So those are the three 16 reasons why I think that Mr. Workman did not have AML. 17 BY MR. METZGER: 18 Q. Okay. Now, have you ever diagnosed AML in a 19 patient? 20 A. No. 21 Q. Have you ever diagnosed MDS in a patient? 22 A. No. 23 Q. Have you ever treated any patients with 24 hematologic conditions? 25 A. Yes. 61 1 Q. How long ago? 2 A. Well, I think the best way to answer it is from 3 about 1968 to about 1975. 4 Q. How many patients did you treat with hematologic 5 conditions? 6 A. And by "hematologic" may I understand the LHCs? 7 Q. Not limited to cancers including blood 8 dyscrasias. 9 A. Well, anything that I treated would have been a 10 malignancy. 11 Q. Okay. 12 A. But I just wanted to know if I could include the 13 lymphatic series. 14 Q. Sure. 15 A. And the question was how many? 16 Q. Yes. 17 A. Something in the vicinity of 50 or 60. I want to 18 say I was not the sole provider of their care. 19 Q. Are you an oncologist? 20 A. No. Not insofar as that term is used to refer to 21 the practice of clinical oncology. 22 Q. Are you a hematologist? 23 A. No. 24 Q. What was the context in which you treated these 25 50 to 60 patients? 62 1 A. I was a fellow in the hematology and oncology 2 clinics of the Massachusetts General Hospital over this 3 period of time. 4 Q. And how many patients -- well, during that time 5 period, did myelodysplastic syndrome exist as a disease 6 entity? 7 A. I'm not sure it exists as a clearly defined 8 disease entity even today, but the answer to your question 9 is that the word "myelodysplastic syndromes" was in use. 10 However, the classification and terminology was not well 11 developed at that time. 12 Q. Did you ever make a diagnosis of myelodysplastic 13 syndrome in any patient during that period? 14 A. Perhaps I could save us some time by mentioning 15 that this was a treatment clinic and that the patients who 16 were seen at that clinic had been diagnosed before coming 17 there. 18 Q. I'm asking -19 A. No. I never actually made, myself, the diagnosis 20 of any of the myelodysplastic syndromes or any of the 21 lymphatic hematopoietic cancers. 22 Q. Including AML? 23 A. Including AML. 24 Q. Okay. Now, what is the percentage of blasts -25 strike that. Are you familiar with the different 63 1 classification systems for MDS? 2 A. When you say the different systems, do you mean, 3 in fact, the different systems or the different categories 4 of MDS? 5 Q. No. I'm talking about the different 6 classification systems; World Health Organization, FAB, 7 those types of systems. 8 A. I'm only familiar with the FAB. 9 Q. And under the FAB, what is the percentage of 10 blasts that is required for an MDS to be deemed to have 11 converted to an AML? 12 A. I don't know the answer to that. 13 Q. And you are not familiar with that classification 14 under the World Health Organization? 15 A. That is correct. 16 Q. Okay. Would you define blast crisis, please, as 17 you use it. 18 A. No, I can't define it. I use it when a physician 19 who is involved in the care of a patient says that such a 20 phenomenon has occurred. 21 Q. Is it your belief that there is a blast crisis of 22 MDS? 23 A. Certainly there can be in some cases, yes. 24 Q. Do you have any source to support that? 25 A. I want to be sure I understand the question. Do 64 1 I have a source to support my representation that 2 something described as a blast crisis can occur -3 Q. In MDS? 4 A. -- as part of the natural history of some cases 5 of MDS? 6 Q. Yes. 7 A. Yes. 8 Q. What's that source? 9 A. It's here in this book (indicating). 10 Q. Wintrobe? 11 A. Yes. 12 Q. All right. Now, have you ever made a study of 13 the epidemiologic studies concerning alkylating agent 14 therapy and secondary MDS? 15 A. I will need a little clarification here. When 16 you say have I ever made a study of this phenomenon, do 17 you mean have I done any of the original data generating 18 research on it? 19 Q. We can start with that. I am familiar with your 20 background. I assume the answer is no. Is that correct? 21 A. That is correct. 22 Q. Have you ever made a literature search for the 23 epidemiologic studies concerning alkylating agent therapy 24 and the development of MDS? 25 A. I have never done a literature search that was 65 1 specifically oriented to that question. 2 Q. And have you ever evaluated causality for 3 alkylating agent therapy and MDS? 4 MR. AMUNDSON: Objection; the term "causality" is 5 a legal term. If you want to answer within the field of 6 epidemiology, go ahead, Doctor. 7 THE WITNESS: I'd like to have the question read 8 back. 9 MR. METZGER: Sure. Please read it back. 10 (Question read.) 11 THE WITNESS: Only in the context that I have 12 attempted to maintain a familiarity with the causes of the 13 disease. I have not done anything specifically to explore 14 that particular possible relationship. 15 BY MR. METZGER: 16 Q. Okay. Have you ever done any literature search 17 to ascertain the available epidemiologic literature 18 concerning alkylating agent therapy and secondary AML? 19 A. I need some clarification of this expression 20 which you have used several times and perhaps will use 21 again, and that is have I made a literature search of. 22 And I'd like to understand whether or not you mean that I 23 have specifically through one means or another attempted 24 in some systematic way to identify the literature that 25 pertained or that might pertain to that specific issue. 66 1 Q. That's exactly what I mean. 2 A. The answer is no. 3 Q. And without having done that, have you ever made 4 an assessment of causality for alkylating agent therapy 5 and secondary AML? 6 MR. AMUNDSON: Objection; calls for a legal 7 conclusion. If you can answer from an epidemiological 8 standpoint, go ahead. 9 THE WITNESS: Again, I'd like to ask for the 10 question to be read back. 11 (Question read.) 12 THE WITNESS: Yes. 13 BY MR. METZGER: 14 Q. How did you do that? 15 A. Well, first I'd like to say not only did I do it, 16 but I published it. And has my CV come? 17 Q. Yes. Let's mark your CV as Exhibit F. 18 (A copy of the aforementioned document was 19 marked by the court reporter as Plaintiffs' 20 Exhibit+ F for identification; attached hereto.) 21 MR. METZGER: And your case list we'll mark as 22 Exhibit G. 23 (A copy of the aforementioned document was 24 marked by the court reporter as Plaintiff's 25 Exhibit+ G for identification; attached hereto.) 67 1 THE WITNESS: Allow me just a minute. 2 BY MR. METZGER: 3 Q. Sure. 4 A. May I respond now? 5 Q. Certainly. 6 A. My publication No. 182 is a book chapter which 7 lists the causes of the various forms of cancer, and it 8 describes alkylating agents as a cause of acute 9 myelogenous leukemia. That book chapter is now about 10 almost four years old. 11 Q. Okay. And when you wrote that book chapter, how 12 did you determine that alkylating agent therapy causes 13 AML? 14 A. There are two ways that I determine it. But the 15 way that I determined it for this particular book chapter 16 is that that book chapter is a recapitulation of the IARC 17 Group 1 agents. If there were a cause-effect relationship 18 according to IARC that I disagreed with, then I would have 19 noted that in that chapter, not necessarily by saying I 20 disagree but, rather, that the nature of the evidence was 21 less than persuasive or something along those lines. 22 Q. Is benzene an alkylating agent? 23 A. No. 24 Q. Does it have any alkylating properties? 25 A. I don't know. 68 1 Q. Is benzene a topoisomerase 2 inhibitor? 2 A. I don't know. 3 Q. Are you familiar with a condition known as the 4 5q- syndrome? 5 A. Well, I call it the 5q deletion syndrome. But 6 when you say am I familiar with it, I am aware of its 7 existence. 8 Q. How did you become aware of its existence? 9 A. I don't know. I've been aware of it for quite a 10 while. 11 Q. And what is that condition? 12 A. I can't describe it. 13 Q. Have you made a systematic search of the 14 literature to ascertain epidemiologic studies concerning 15 that condition? 16 A. No. 17 Q. Have you ever attempted to investigate the causes 18 of that condition? 19 A. No. 20 Q. Are you familiar with a condition known as 21 monosomy 7? 22 A. Yes. 23 Q. And could you define that for us? 24 A. It's the absence of one of the No. 7 chromosomes. 25 Q. How did you become familiar with that condition? 69 1 A. I really don't know how to answer that other than 2 to say I have been aware of the existence of that 3 condition for many years. 4 Q. Have you ever conducted a systematic search of 5 the literature to ascertain epidemiologic studies which 6 bear upon that condition? 7 A. Well, the answer to your question is no. But I 8 just want to state, because this question about systematic 9 searches of the literature has come up several times, that 10 this is not the way in which I do my work. It would be a 11 rare thing for me to go to the computer and do what I 12 think you mean by a systematic review of the literature. 13 In fact, I would never do it. I have a person who would 14 do it for me. I conduct my work by finding the most 15 recent paper and then going back from that. And then when 16 I get to the point where I'm starting to get -- paths are 17 starting to cross, I will usually stop. I'll stop at that 18 point. 19 Q. Well, then, let me ask you: Have you ever done 20 that process that you just described for the 5q- syndrome? 21 A. No. 22 Q. Have you ever done that process for the 23 monosomy 7? 24 A. No. 25 Q. Other than the papers which we've identified here 70 1 today and which are referenced in your article in 2 "Leukemia Research" regarding myelodysplastic syndromes, 3 can you identify for me any other articles which assess 4 the epidemiology of myelodysplastic syndromes? 5 A. I think I have mentioned the papers by Hayes and 6 Yin. I don't know if that was included in your question. 7 Q. Yes. 8 A. The answer is no, I cannot, from my memory. 9 Q. And can you identify for me any articles which 10 assess the epidemiology of the 5q- syndrome? 11 A. No. 12 Q. Or monosomy 7? 13 A. No. 14 Q. Or the 5q- syndrome in MDS? 15 A. No. 16 Q. Or the monosomy 7 in MDS? 17 A. No. 18 Q. Have you ever studied the benzene leukemia 19 literature to ascertain the frequency that a 20 benzene-induced AML is preceded by a myelodysplastic 21 process? 22 MR. AMUNDSON: Can I hear that question again. 23 (Question read.) 24 THE WITNESS: Could I ask you to read it one more 25 time a little bit more slowly. 71 1 (Question reread.) 2 THE WITNESS: May I ask a question of 3 clarification? 4 BY MR. METZGER: 5 Q. Certainly. 6 A. I believe the question uses the term a 7 benzene-induced case of AML. 8 Q. Yes. 9 A. Is that correct? 10 Q. That's correct. 11 A. I don't know of any way of knowing that any 12 particular case of AML is, in fact, benzene induced. And 13 so I don't know how I can respond to the question if the 14 context of the question is with regard to one or more 15 individually identified human beings with the disease AML. 16 Q. All right. Well, let's try it this way, then. 17 Have you ever reviewed the epidemiologic literature of 18 benzene exposed -- strike that. Have you ever reviewed 19 the epidemiologic literature pertinent to benzene exposure 20 and the development of AML to determine the frequency of a 21 precedent myelodysplasia? 22 MR. AMUNDSON: Objection; vague. 23 THE WITNESS: I need to be very sure I understand 24 the question. Have I ever looked at the literature which 25 is or attempts to be descriptive of the frequency with 72 1 which the diagnosis of AML is known or thought to have 2 been preceded by a set of findings that could be described 3 as one of the MDS's? And I assume that we are excluding 4 here from the category of cases of AML those conditions 5 which arise as a blast crisis in a known case of MDS. 6 BY MR. METZGER: 7 Q. No. That's not my question at all. Off the 8 record. 9 (Discussion held off the record.) 10 (Lunch recess was at 12:17 p.m.) 11 * * * 12 13 14 15 16 17 18 19 20 21 22 23 24 25 73 1 MONDAY, FEBRUARY 9, 2004, LONG BEACH, CALIFORNIA 2 AFTERNOON SESSION 3 1:13 P.M. 4 *** 5 6 (The question read as follows: 7 "Q. All right. Well, let's try it this way, 8 then. Have you ever reviewed the epidemiologic 9 literature of benzene exposed -- strike that. Have 10 you ever reviewed the epidemiologic literature 11 pertinent to benzene exposure and the development of 12 AML to determine the frequency of a precedent 13 myelodysplasia?") 14 THE WITNESS: No. 15 16 CONTINUED EXAMINATION + 17 BY MR. METZGER: 18 Q. Do you have an opinion as to the frequency of 19 precedent myelodysplasia? 20 A. No. 21 Q. Do you know what caused Mr. Workman's MDS? 22 A. No. 23 Q. I think this question is probably the same, but 24 I'm going to ask it just to be thorough. Do you have an 25 opinion as to what caused Mr. Workman's MDS? 74 1 A. Well, truthfully, I don't see a distinction 2 between them, but the answer is no. 3 Q. For purposes of this next question I'd like you 4 to assume that Mr. Workman had AML. The question is: 5 Assuming that to be true, do you have an opinion as to 6 what caused Mr. Workman's AML? 7 MR. AMUNDSON: Okay. The question is vague and 8 ambiguous, compound, and an incomplete hypothetical. 9 You're asking him to opine as to the cause of a 10 hypothetical medical condition. 11 MR. METZGER: No, not at all. AML is not a 12 hypothetical medical condition. I'm asking him my 13 question. Your objections are noted for the record. 14 MR. AMUNDSON: Okay. 15 THE WITNESS: I'll need clarification of an 16 issue. When you say I shall assume that he had AML, I 17 want to be clear that I understand whether or not you mean 18 that he had a blast crisis in MDS that is often referred 19 to as AML, or, in fact, he developed the condition which 20 would be the same as the usual de novo AML, which usually 21 is not preceded by a diagnosable -- no. Which is usually 22 not preceded by a diagnosed MDS. 23 MR. AMUNDSON: Why don't you reread the question. 24 BY MR. METZGER: 25 Q. Let me approach it this way. You've made 75 1 reference to certain references in Mr. Workman's medical 2 records of a diagnosis of AML. I'm asking you to assume 3 that those references are true and that Mr. Workman did, 4 in fact, have AML. 5 A. Okay. 6 Q. Do you have an opinion as to the cause of his 7 AML? 8 MR. AMUNDSON: How can he answer that, Counsel? 9 You've given him a hypothetical situation. 10 MR. METZGER: Just make your objections for the 11 record. 12 +MR. AMUNDSON: Well, if you don't want to 13 clarify it, then I'll object that it's an incomplete 14 hypothetical, it's vague and ambiguous, and instruct him 15 not to answer. 16 MR. METZGER: You're not going to instruct him 17 not to answer. 18 MR. AMUNDSON: I just did. 19 MR. METZGER: I'll seek to exclude his testimony. 20 Q. Will you answer the question, Dr. Cole? 21 MR. AMUNDSON: If you think you understand what 22 he's asking, go ahead and respond to it. 23 THE WITNESS: I cannot respond to this question 24 yet because it has a premise, at least as I understood the 25 question -- it does go by a little fast -- that the record 76 1 or the records refer to this man as having a documented 2 case of AML. 3 Now, I may have misunderstood the question, but I 4 think that my recollection is that that is what you said. 5 I have never seen in the medical records a documentation 6 of the existence of AML in the case of Mr. Workman. 7 BY MR. METZGER: 8 Q. All right. Then let me approach it this way. 9 I'd like you to assume that Mr. Workman had AML, whether 10 that was a de novo or a progression of a preexisting 11 myelodysplastic syndrome. And I would like to know 12 whether you have an opinion as to the cause of the AML. 13 MR. AMUNDSON: Objection; vague and ambiguous, 14 compound, unintelligible, and an incomplete hypothetical, 15 calls for the witness to speculate. 16 THE WITNESS: The answer is no. 17 BY MR. METZGER: 18 Q. Okay. Among the general topics that you've told 19 me you had opinions on was whether Mr. Workman's condition 20 was caused by exposure to benzene. What is your opinion 21 on that topic? 22 A. The answer is that there is no evidence that it 23 was caused by benzene. 24 Q. On what do you base that conclusion? 25 A. The first is that benzene exposure is not a 77 1 generally accepted cause of MDS. The second is that from 2 what I would understand of his exposures to benzene in 3 this particular case, they would not be adequate to 4 increase his risk of any particular condition. Those are 5 the two reasons or the two bases for my statement. 6 Q. Do you have an opinion as to Mr. Workman's 7 cumulative received dose of benzene? 8 A. Yes, I do. 9 Q. What was it? 10 A. My opinion is that his exposure to benzene would 11 be minimal and far below that which is generally 12 considered to be the first doubling dose for the condition 13 known as AML. 14 Q. Are you able to quantify Mr. Workman's received 15 dose of benzene? 16 A. I can semi-quantify it. 17 Q. Well, give me your best quantification that you 18 can. 19 A. Okay. Minimal. 20 Q. I would say that's qualitative rather than 21 quantitative. Are you able to give me a quantitative 22 range or estimate of his cumulative benzene exposure? 23 A. It is far below that which is the first doubling 24 dose for AML. 25 Q. And what do you consider to be the first doubling 78 1 dose for AML? 2 A. 100 ppm years. 3 Q. Are you aware of any study which has validated 4 part per million years as the most sensitive indicator of 5 benzene-induced leukemia? 6 A. May I ask what you mean by the statement "the 7 most sensitive indicator of"? 8 Q. Sure. I'll answer your question with an 9 explanation, and we'll do it this way. There are 10 different metrics which can be used to assess benzene 11 exposure. True? 12 A. Yes. 13 Q. And one of those is a cumulative part per million 14 year dose. Correct? 15 A. Yes. 16 Q. One can also assess benzene exposure by duration. 17 True? 18 A. Yes. 19 Q. And one can also assess benzene exposure by peak 20 exposures. True? 21 A. Yes, yes. 22 Q. These are all different metrics of benzene 23 exposure. 24 A. Yes. 25 Q. Are you aware of any study which has validated 79 1 part per million years as the most accurate or sensitive 2 metric for assessing causality of benzene-induced 3 leukemia? 4 A. But that's my question. It's not whether or not 5 there are other metrics and what they may be, but what you 6 mean by the most sensitive or accurate. 7 Q. Okay. What I mean is the one that most -- that 8 best conforms to epidemiology. 9 MR. AMUNDSON: Does that make sense to you? 10 THE WITNESS: I think it will in another minute 11 or two. 12 MR. AMUNDSON: Okay. 13 BY MR. METZGER: 14 Q. Let me approach it this way, Dr. Cole. Maybe 15 this will help. Are you aware of any epidemiologic 16 studies which have evaluated odds ratios for risk of 17 leukemia in benzene-exposed workers in which the studies 18 compare different metrics? 19 A. There are several such studies as that. 20 Q. And can you name any? 21 A. I can't name any offhand. But I don't know how 22 one would know from any small number of such studies that 23 the metric -- how to decide which metric is the most 24 accurate predictor of risk enhancement. There has been a 25 tendency to use the metric that gives the highest odds 80 1 ratios or SMRs. I think this is fundamentally fallacious. 2 Generally speaking -- no. I want to retract the words 3 "generally speaking." 4 It is considered to be true for all known human 5 carcinogens that some measure of cumulative exposure, 6 whether it's ppm years or some other way of combining 7 intensity and duration, is the most accurate descriptor of 8 risk with the exception -- no. I'll end my response by 9 saying this: With one exception and one possible 10 qualification. 11 Q. What are you referring to? 12 A. By the exception? 13 Q. Yes. 14 A. I am referring to the circumstance that the risk 15 of leukemia subsequent to radiation, ionizing radiation 16 exposure, in some circumstances may reach a plateau and 17 not be a strict monotonic function of exposure. That's 18 one. And the qualification is that -- I hope I said 19 possible qualification. I should have said possible 20 qualification -- many epidemiologists and toxicologists 21 are of the point of view that it may turn out to be true 22 that there is an intensity below which the exposure should 23 not contribute to the measure of ppm years for -- well, 24 possibly in general. 25 Q. Are you aware of any study that has proved a 81 1 threshold for benzene? 2 A. First I have to ask if you could use some other 3 word other than "proved" because I hold proof at least in 4 scientific circles to be a virtually unattainable 5 standard. 6 Q. Well, using the word "proved" as you've just 7 indicated, are you aware of any study that has proved that 8 there is a threshold exposure to benzene below which 9 leukemia cannot occur? 10 MR. AMUNDSON: Objection; the question is vague 11 and ambiguous, argumentative as worded, as in the use of 12 the word "proved." That's it. 13 THE WITNESS: I should answer? 14 BY MR. METZGER: 15 Q. Please. 16 MR. AMUNDSON: If you can. 17 THE WITNESS: I understood the question to end 18 with the expression "below which benzene does not occur." 19 I'm sorry. "Below which leukemia does not occur." 20 BY MR. METZGER: 21 Q. Cannot occur. 22 A. Cannot occur. May I ask if the question could be 23 qualified to below which an increase in the risk of 24 "benzene" cannot occur? 25 Q. No. I'd like you to answer the question that I 82 1 asked you. 2 A. No. 3 Q. That is your answer? 4 A. Yes. My answer is no. 5 Q. Now, isn't it true that what is known of the 6 mechanisms by which benzene causes leukemia is 7 inconsistent with the parts per million year metric? 8 MR. AMUNDSON: Objection; vague and ambiguous. 9 THE WITNESS: My answer is I don't know. 10 BY MR. METZGER: 11 Q. Okay. Have you researched the literature to 12 ascertain the dose of benzene that is necessary to cause 13 the 5q- syndrome? 14 A. No. 15 Q. Have you researched the literature to ascertain 16 the dose of benzene which is necessary to cause the 17 monosomy 7? 18 A. No. 19 Q. Are you familiar with any articles by Aksoy 20 regarding benzene and myelodysplastic syndrome? 21 A. Yes. 22 Q. Which ones? 23 A. Well, I don't remember which ones now, but I am 24 aware that there was one. 25 Q. And what was the finding of that study? 83 1 A. I don't recall. 2 Q. Are you familiar with any studies by Aul, A-u-l, 3 regarding benzene and myelodysplastic syndrome? 4 A. Yes. 5 Q. Which one? 6 A. I don't recall. 7 Q. What was the finding of that study? 8 A. I don't recall. 9 Q. Are you familiar with any studies by Baslo, 10 B-a-s-l-o, regarding benzene and myelodysplastic syndrome? 11 A. No, I am not. 12 Q. Are you familiar with any studies by Brandt, 13 B-r-a-n-d-t, regarding benzene exposure and 14 myelodysplastic syndrome? 15 A. No, I am not. 16 Q. Are you familiar with a study by Chen entitled 17 "Benzene-Induced Myelodysplastic Syndrome"? 18 A. Yes. 19 Q. And what is the finding of that study? 20 A. I believe there was a representation on the part 21 of the authors that there was an increased risk of 22 myelodysplastic syndrome among people who they categorized 23 as occupationally exposed to benzene. 24 Q. And do you recall whether that finding was 25 significant? 84 1 MR. AMUNDSON: Objection; vague as to the term 2 "significant." 3 THE WITNESS: I was about to ask you: Did you 4 mean statistically significant? 5 BY MR. METZGER: 6 Q. Yes. I make it a practice of whenever using the 7 word significant to refer to statistical significance, and 8 when I'm not talking about that, I use the word 9 "important." 10 A. Okay. I'm glad to know that. So I can assume 11 that to be true? 12 Q. Yes. I'm talking about statistically 13 significant. 14 A. I don't recall whether it was statistically 15 significant or not. 16 Q. Are you familiar with a study by Ciccone, 17 C-i-c-c-o-n-e, regarding benzene exposure and 18 myelodysplastic syndrome? 19 A. No. 20 Q. Are you familiar with a study by Cowles, 21 C-o-w-l-e-s, regarding benzene exposure and 22 myelodysplastic syndrome? 23 A. Yeah. I think that's -- I think her name is 24 pronounced Cowles. And that is Sally Cowles or S. Cowles. 25 Correct? 85 1 Q. Yes. 2 A. Yes, I am. 3 Q. And what was the finding of that study? 4 A. I don't recall the finding. 5 Q. Are you familiar with a study by Crane regarding 6 benzene exposure and myelodysplastic syndrome? 7 A. No. 8 Q. Are you familiar with a study by Cuneo on that 9 topic? 10 A. Could you spell that. 11 Q. C-u-n-e-o. 12 A. Yes. 13 Q. What was the finding of that study? 14 A. I don't recall the finding. 15 Q. Are you familiar with a study by Farquhar, 16 F-a-r-q-u-h-a-r, regarding benzene and MDS? 17 A. No. 18 Q. Are you familiar with a study by Farrow regarding 19 benzene and MDS? 20 A. No. 21 Q. Are you familiar with study by Fengtong on that 22 topic? 23 A. No. 24 Q. Are you familiar with a study by Goguel, 25 G-o-g-u-e-l, on that topic? 86 1 A. Could you read me the title of that paper. 2 Q. Sure. "Les Leucemies Benzeniques de la Region 3 Parisienne entre 1950 et 1965." 4 A. Yeah. I am familiar with that paper. My 5 recollection is that it is a study of the epidemiology of 6 leukemia. I don't recall anything in it about MDS. 7 Q. Incidentally, was MDS previously referred to as 8 preleukemia? 9 A. It's possible that some people made that 10 equivalence of terminology. It was never a standard or 11 accepted terminology. 12 Q. Well, before myelodysplastic syndrome was called 13 that, what was it called by clinicians? 14 A. Dismyelopoiesis. 15 Q. And have you read any articles where it had been 16 previously referred to as preleukemia? 17 A. I have certainly read literature on the condition 18 known as preleukemia. I have never seen an epidemiologic 19 study of it. Whether or not some individual cases of what 20 was to come to be known as MDS were labeled preleukemia or 21 not, I don't know. But I do not understand the word 22 preleukemia as it was ordinarily used to be the equivalent 23 of what we now call any of the MDS's. 24 Q. Are you familiar with a study by Goldberg 25 regarding benzene and MDS? 87 1 A. Again, could I ask for the title of that? 2 Q. "Survey of Exposure to Genotoxic Agents in 3 Primary Myelodysplastic Syndrome." 4 A. No. 5 Q. Are you familiar with a study by the Groupe 6 Francais regarding benzene and myelodysplastic syndrome? 7 A. No. 8 Q. Are you familiar with a study by Hasselbalch 9 regarding benzene and MDS? 10 A. No. 11 Q. You mentioned this study by Hayes. Which study 12 by Hayes are you referring to? 13 A. I'm not sure how to identify it to you. I'd have 14 to see it. As far as I know, there was only one in which 15 myelodysplastic syndrome or similar language was 16 incorporated into the title. 17 Q. Okay. Are you familiar with a study by Hotz, 18 H-o-t-z, regarding benzene and MDS? 19 A. No. 20 Q. Are you familiar with a study by Ido, I-d-o, 21 regarding the epidemiology of MDS? 22 A. No. 23 Q. Are you familiar with a study by Iurlo, 24 I-u-r-l-o, regarding MDS? 25 A. No. 88 1 Q. Are you familiar with a study by Jacobs 2 concerning MDS? 3 A. No. 4 Q. Are you familiar with a study by Kim concerning 5 benzene and MDS? 6 A. No. 7 Q. Are you familiar with an article by Levine 8 entitled "Secondary Myelodysplastic Syndromes and 9 Leukaemias"? 10 A. No. 11 Q. Are you familiar with a study by Levine entitled 12 "Leukemias and Myelodysplastic Syndromes Secondary to 13 Drug, Radiation, and Environmental Exposures"? 14 A. No. 15 Q. Are you familiar with a study by Mecucci 16 regarding benzene and MDS? 17 A. No. 18 Q. Are you familiar with a study by Mele, M-e-l-e, 19 regarding leukemia and preleukemia? 20 A. Yes. 21 Q. What is that study? 22 A. I have read the paper, but I don't recall it. 23 Q. Are you familiar with a study by Mironova 24 regarding -25 A. The answer is no. 89 1 Q. Are you familiar with a study by Nagata? 2 A. No. 3 Q. Are you familiar with a study by Nisse, 4 N-i-s-s-e? 5 A. No. 6 Q. Are you familiar with a study by Preudhomme 7 regarding MDS? 8 A. No. 9 Q. Are you familiar with a study by Rigolin 10 regarding MDS? 11 A. No. 12 Q. Are you familiar with a study by Rodella 13 regarding MDS? 14 A. No. 15 Q. Are you familiar with a study by Rozman 16 concerning MDS? 17 A. The first name? 18 Q. R-o-z-m-a-n. 19 A. No. 20 Q. Are you familiar with a study by Ruiz, R-u-i-z, 21 regarding benzene and MDS? 22 A. No. 23 Q. Are you familiar with a study by Sandler 24 regarding MDS? 25 A. Yes. 90 1 Q. Which study? 2 A. I think I have it here. 3 MR. AMUNDSON: You've identified it already. 4 MR. METZGER: Oh, we have. 5 Q. And are you familiar with any other studies by 6 Sandler concerning MDS? 7 A. No. 8 Q. Are you familiar with a study by Sanz, S-a-n-z, 9 regarding MDS? 10 A. No. 11 Q. Are you familiar with a study by Shen, S-h-e-n, 12 regarding MDS? 13 A. No. 14 Q. Are you familiar with a study by Smith regarding 15 benzene exposure and risk of MDS? 16 A. No. 17 Q. Are you familiar with a study by Snyder entitled 18 "Benzene and Leukemia" which concerns MDS? 19 A. No. 20 Q. Are you familiar with a study by Stafford 21 concerning MDS? 22 A. No. 23 Q. Are you familiar with a study by Stillman 24 concerning MDS? 25 A. No. 91 1 Q. Are you familiar with a study by Tasaka regarding 2 MDS? 3 A. Could you read the title of that. 4 Q. Sure. "Translocation 3;21, et cetera, Found in a 5 Patient with Myelodysplastic Syndrome and Long-term 6 Exposure to Organic Solvents." 7 A. Yeah. I have read that paper. 8 Q. And what is the finding of that paper? 9 A. I think it's essentially captured in the title. 10 It's an individual case report. It's not an epidemiologic 11 study. 12 Q. Are you familiar with a study by Travis 13 concerning benzene and MDS? 14 A. Again could you read the title. 15 Q. "Hematopoietic Malignancies and Related Disorders 16 Among Benzene-exposed Workers in China." 17 A. Yes. 18 Q. What is the finding of that study? 19 A. I don't recall. 20 Q. Are you familiar with a study by Tsai, T-s-a-i, 21 regarding benzene and MDS? 22 A. May I ask if the author's first initial is S? 23 Q. Yes, it is. 24 A. Yes, I am familiar with that paper. 25 Q. What's the finding of that study? 92 1 A. I don't recall. 2 Q. Are you familiar with a study by Van den Berghe 3 regarding MDS? 4 A. No. 5 Q. Are you familiar with a study by Vineis regarding 6 MDS? 7 A. Could you read me the title of that paper. I 8 think it might be here. 9 MR. AMUNDSON: I think we identified that. 10 THE WITNESS: No. That was the paper that I 11 brought. Maybe read me the title. 12 BY MR. METZGER: 13 Q. Yes, I will. "Cytogenetics and Occupational 14 Exposure to Solvents: A Pilot Study on Leukemias and 15 Myelodysplastic Disorders." 16 A. I am familiar with that paper. 17 Q. What is the finding? 18 A. I don't recall the finding. 19 Q. Are you familiar with a study by Vineis entitled 20 "Solvent Exposure and Myelodysplastic Syndrome"? 21 A. Well, now that you read them in immediate 22 juxtaposition, I can't say which one I am familiar with. 23 I am not familiar with two. 24 Q. Are you familiar with any studies by West 25 regarding benzene and MDS? 93 1 A. No. 2 Q. Are you familiar with any studies by -- I think 3 you did mention a study by Y-i-n. 4 A. Yin, Y-i-n. 5 Q. You did? 6 A. Yes. I just want to be clear that it's Yin, not 7 Yen. I think you said Yen. 8 Q. It is Yin, Y-i-n. 9 A. Okay. 10 Q. How many studies by Yin are you familiar with 11 regarding benzene and MDS? 12 A. Just one. 13 Q. And what is the finding of that study? 14 A. It represents that among the group of people 15 described as benzene workers that there was an excess of 16 MDS. 17 Q. Was the excess statistically significant? 18 A. I don't recall. 19 Q. Do you recall how many cases of MDS there were in 20 this study? 21 A. No. 22 Q. Are you familiar with a study by Zapata Gayon? 23 A. No. 24 Q. Are you familiar with any studies that have found 25 a statistically significant excess of AML in truck 94 1 drivers? 2 A. I believe there is -- well, I don't know if it's 3 statistically significant, so I guess I'll have to answer 4 the question in the negative. 5 Q. Are you aware of any studies finding a 6 statistically significant excess of AML in workers exposed 7 to diesel exhaust? 8 A. No. 9 Q. Are you familiar with any studies finding a 10 statistically significant excess of MDS in truck drivers? 11 A. No. 12 Q. Are you familiar with any studies finding a 13 statistically significant excess of MDS in diesel exhaust 14 exposed workers? 15 A. No. 16 Q. Are you familiar with any studies finding a 17 statistically significant excess of MDS among smokers? 18 A. No. 19 Q. Incidentally, we've been referring to the term 20 "statistically significant," and we haven't actually 21 defined that. But in answering my questions have you 22 assumed that I've meant statistically significant to a 95 23 percent confidence interval? 24 A. I have understood that. 25 Q. Yes. And would you agree that that is the 95 1 convention for statistical significance, although it is -2 well, that much? 3 A. Mr. Metzger, I'm not sure if you're going 4 someplace with this or not, so I just want to say that it 5 is not statistically significant to the 95 percent 6 confidence interval. It is statistically significant at 7 the 5 percent level of probability. I just don't know if 8 we're going down that road or not. 9 Q. Yes. I misstated it. Being a lawyer rather than 10 an epidemiologist, I tend to lapse. 11 A. It really doesn't matter if that's the end of the 12 story. It does matter if we go down to what's the meaning 13 of confidence interval relative to the meaning of P 14 values. 15 Q. That's a venture I don't want to embark on right 16 now. 17 A. Neither do I. 18 Q. Okay. Are you aware of any mechanistic studies 19 regarding benzene which indicate that as benzene -- as the 20 concentration of benzene increases to about 25 parts per 21 million, there is an increasingly lesser production of 22 toxic metabolites? 23 A. I am not aware of any such study. Well, let me 24 ask for some clarification. When you say a "lesser 25 production," do you mean in a relative or an absolute 96 1 sense? 2 Q. I mean a relative sense. 3 A. Okay. 4 Q. And absolute as a matter of fact. 5 A. Yeah. My question back was not well phrased. I 6 should have asked whether or not it is relative, and 7 you've answered that. 8 My answer is that there is one paper that 9 addresses this issue. I don't recall exactly where the 10 cut point was. I think it might have been 20, but perhaps 11 it was two alternatives, one being 20, one being 40. So 12 yes, there is at least one paper that deals with the human 13 situation and the relationship between low level exposures 14 and possible proximate leukemogens or toxins, if you wish. 15 Q. Do you know what the toxic metabolites of benzene 16 are? 17 A. I think there are several, but I assume that the 18 one we're interested in is the proximate leukemogen. 19 Q. Well, let me just ask you: What are the toxic 20 metabolites of benzene? 21 A. I don't know. 22 Q. Do you have an opinion as to whether benzene 23 causes AML by inducing genetic damage? 24 MR. AMUNDSON: I'll object. That question is 25 vague as to the term "genetic damage." Go ahead. 97 1 THE WITNESS: Yes. I need to ask for a question 2 of clarification. In your question do you mean benzene 3 per say, or do you mean benzene or one of its metabolites? 4 BY MR. METZGER: 5 Q. Benzene and/or one or more of its metabolites. 6 A. The answer to your question, then, is yes. 7 Q. I forgot what my question was. 8 A. I think it related to whether or not benzene or 9 one of its metabolites causes AML by genetic damage. 10 Q. Okay. Are you able to identify for me the genes 11 which benzene damages in causing AML? 12 A. No. 13 Q. Are you able to identify for me the chromosomes 14 which benzene damages in causing AML? 15 A. No. 16 Q. You also had an opinion regarding the possible 17 role of smoking in Mr. Workman's condition. And what is 18 your opinion on that topic? 19 A. I believe that there would be no way to 20 substantiate the point of view that Mr. Workman's 21 cigarette smoking would have produced his case of MDS. 22 Q. Okay. I think I've gone through the general 23 topics that you provided me earlier. As we've gone 24 through this process, have any additional topics or 25 opinions occurred to you that you have not yet related to 98 1 me? 2 A. No. But I understand that it's possible that I 3 may be asked to read some other depositions, whether of 4 plaintiffs or defense witnesses, and so it is possible 5 that other opinions will come to mind. 6 There is one area that you did not ask me about, 7 which is important to my point of view. And there is 8 another area that you asked me about but from a 9 perspective that did not allow me to state a fundamental 10 part of the basis for my point of view. 11 Q. Please tell me. 12 A. Both? 13 Q. Both, sure. I'm here to find out your opinions, 14 so whichever you'd like to tell me. 15 A. The first one is that the probability of 16 conversion during the remaining lifetime of a case of MDS 17 to blast crisis and/or possibly AML if you wish to call it 18 that is known, and it differs among the different types of 19 MDS. And it is the lowest and is, in fact, rather low for 20 refractory anemia with ringed sideroblasts. So I would 21 just state that to be a fact and -- I don't know how to do 22 this. Do I show how I documented, or do I wait to see if 23 you ask me about that? 24 MR. AMUNDSON: Let him ask that. 25 MR. METZGER: I will. 99 1 Q. But before you do that, you have another matter 2 you want to tell me about. So why don't you tell me about 3 that. 4 A. The occupational exposure to diesel exhaust and 5 which usually also entails occupational exposure to diesel 6 fuel is something that has been studied in large number of 7 rather large studies with interest in a full array of end 8 points by which I mean all causes of death or at least all 9 major causes. These studies have had a focus on cancer of 10 the lung and to a lesser extent -- well, to a much lesser 11 extent cancer of the bladder. I know of none of these 12 major studies of the adverse effects of high level 13 exposures to diesel exhaust that show an excess of any 14 form of leukemia. 15 I will mention, incidentally, that they don't 16 show MDS either, but they don't actually present data on 17 that condition. Therefore, a large part of the 18 justification for my point of view that Mr. Workman's 19 exposure to diesel exhaust and/or fuel did not produce his 20 MDS is based not on a reverse view of what is known about 21 the causes of MDS but, rather, on the forward view of what 22 is known about the adverse health effects of diesel 23 exhaust. So those are my two points. 24 Q. Of the studies that you're referring to regarding 25 diesel exhaust, how many of those studies had sufficient 100 1 statistical power to detect a significant increase in AML? 2 A. Mr. Metzger, this question will need a little 3 work before I can answer it. May I try to suggest how we 4 could improve the question? 5 Q. Well, let me just ask you if you can tell me the 6 number of those studies -7 A. No, I can't. 8 MR. AMUNDSON: Let him finish the whole question. 9 I think you interrupted him. 10 THE WITNESS: Sorry. 11 BY MR. METZGER: 12 Q. Let me ask another question, and we'll explore a 13 little further. How many of the studies, epidemiologic 14 studies that you are referring to regarding diesel exhaust 15 have sufficient statistical power to detect a significant 16 increase of MDS? 17 A. Again, I cannot answer the question as phrased. 18 Q. Okay. How would you like me to change the 19 question? Not that I'm going to, but I'll entertain the 20 suggestion. 21 A. I think the question would be converted into 22 something I could answer if you change two parts of it. 23 One was that instead of talking about statistical power, 24 you asked the more general question about the precision of 25 the study. I consider and I think most epidemiologists 101 1 consider power to be what is termed a front end or 2 planning issue in study design, and its counterpart is 3 precision of the width of the confidence interval at the 4 analytical or interpretative phase. 5 The second thing is you asked to detect a 6 significant, and I understand you to mean statistically 7 significant, excess if there were in truth to be one. It 8 is not possible to answer that question without stating 9 what level of precision -- I'm sorry -- what level of 10 significance would have been requested. 11 There is another point, and that is that when you 12 ask a question of this sort -- I'll reverse that. When I 13 would try to answer a question of this sort, and when it 14 is phrased in the context of an array of studies, the 15 question of the precision and statistical significance of 16 any one individual study becomes a relatively minor issue. 17 The issue becomes whether or not an array of studies which 18 are in at least some sense comparable in terms of the 19 cause-effect relationship that they seek are displaying 20 similar or dissimilar results. 21 Q. Have you conducted any meta-analyses of these 22 studies? 23 A. No. 24 Q. What is the frequency that you believe exists for 25 the conversion of RARS to AML? 102 1 A. With the understanding that I will accept your 2 language of conversion of AML to be the equivalent to my 3 language of blast crisis, the answer is 5 percent. 4 Q. Now, of that 5 percent, what percentage of those 5 are -6 A. I'm sorry. I need to ask if we could go back to 7 that question. Could I have it read back because I might 8 have missed an important part. I might have assumed 9 something in my answer that you didn't actually say. 10 Q. Why don't you just clarify. 11 A. I was speaking about the conversion to blast 12 crisis or AML, if you will, wish, in that form of MDS that 13 Mr. Workman had. 14 Q. Which is RARS? 15 A. Yes. Is that what you asked? 16 Q. I said specifically RARS. 17 A. I lost that. 18 Q. That's fine. Now, my next question is: 19 Regarding that approximately 5 percent that you 20 mentioned -- first of all, what is the source of your 21 information for that? Is that Wintrobe? 22 A. Yes. 23 Q. And of that approximately 5 percent, what 24 percentage of those were cases of patients who had been 25 administered alkylating agents? 103 1 A. I don't know. 2 Q. Are you aware of the frequency or percentage of 3 conversion of RARS to blast crisis or AML for patients who 4 have RARS as a result of alkylating agent therapy? 5 MR. AMUNDSON: Objection; compound, vague and 6 ambiguous, overbroad. If you understand it, go ahead and 7 answer it. 8 THE WITNESS: My answer is no. 9 BY MR. METZGER: 10 Q. Okay. Let me just review. I think we're done. 11 MR. AMUNDSON: Give me two minutes. 12 BY MR. METZGER: 13 Q. What I'd like to do is we're all going to take a 14 short break for various reasons. And during that break I 15 would like you to think, Dr. Cole, if you've told me now 16 all of the opinions that you have in this case, and we'll 17 come back in a short minute and find out if there's 18 anything left. 19 A. So when we resume, you would like me to tell you 20 whether or not I feel that I have been asked about all of 21 my opinions? 22 Q. Whether you've related them to me, whether I've 23 asked you about them or not. 24 A. Well, if you've asked them, I've related them. 25 (A recess was taken.) 104 1 BY MR. METZGER: 2 Q. Dr. Cole, I have asked you before the break if 3 you would think during the break if there are any other 4 opinions that you have that you have not yet related to 5 me. 6 A. No. 7 Q. Okay. I have a few more questions for you, and 8 we'll be done shortly. You have told me that -- I'm not 9 sure I'm stating this accurately, but that it's your 10 opinion that benzene does not cause MDS. First of all, am 11 I right on that, that that's your opinion? 12 A. No. It would have depended on the context how I 13 would have phrased it. But since you ask it pointedly, 14 then I have to say no. 15 Q. Well, what is your opinion on that topic? 16 A. My opinion is that the available scientific 17 evidence does not support a causal relationship between 18 benzene and MDS, but I used the expression for shorthand 19 that you originally said. 20 Q. Fine. Now, when you are referring to the 21 available evidence, what types of evidence or data are you 22 referring to? 23 A. Now, when you say when I refer to the available 24 evidence, you mean as in the statement that I made just 25 prior to this question when I said the available 105 1 scientific evidence? 2 Q. Yes. 3 A. I refer to the totality of it but, of course, 4 with my primary emphasis being on the epidemiology. 5 Q. Okay. So at least part of it is epidemiology? 6 A. No. It's not part of it. It's the overwhelming 7 majority of it, and it is in the tradition of the original 8 rules of the IARC for putting the substance into 9 Category 1. 10 Q. Other than epidemiology, what types of studies 11 are you relying on for your opinion on that point? 12 A. And when you say "on that point," you mean -13 Q. Benzene causing -14 A. -- benzene as a cause of MDS? 15 Q. Yes. 16 A. I also rely upon my understanding of the animal 17 studies. 18 Q. Anything else? 19 A. No. 20 Q. Okay. What animal studies are there that you 21 have reviewed regarding benzene and MDS? 22 A. I haven't reviewed any. 23 Q. What animal studies regarding benzene and MDS 24 have you considered in forming your opinion? 25 A. It is not that I have considered any particular 106 1 study or studies, but it is my understanding that the 2 available animal evidence does not establish benzene as a 3 cause of MDS in animals. 4 Q. And what is your -- upon what are you basing 5 that? 6 A. Well, I can't give you a citation. That's just 7 my recollection at this time. 8 Q. Have you ever attempted to ascertain what animal 9 studies there are that report morphological features which 10 are those of MDS? 11 A. No, I haven't attempted to do that. 12 Q. Now, you mentioned IARC. Has IARC ever published 13 a monograph regarding benzene and MDS? 14 A. You mean a monograph that was specifically given 15 over to that question? 16 Q. Well, let me rephrase. IARC publishes monographs 17 regarding the carcinogenicity of chemicals. True? 18 A. Yes. 19 Q. And the last IARC assessment of benzene was what? 20 1989? Is that right? 21 A. I really don't recall. For the purpose of this 22 case, I didn't check benzene. I checked diesel exhaust. 23 Q. In any of the IARC evaluations of the 24 carcinogenicity of chemicals, does IARC look at MDS as a 25 carcinogenic end point? 107 1 A. No. I would assume not. Let me just be clear. 2 You asked me whether or not I considered benzene to be a 3 cause of MDS, and I said that if I were to use the 4 criteria that were the old criteria of IARC, basically 5 what I was trying to say there was that the available 6 evidence in human beings is sufficient, then the answer 7 would be no. 8 Q. And what specific criteria are you referring to? 9 A. Let me be sure I understand the question. You 10 mean what are the IARC's criteria? 11 Q. I can read the IARC criteria, and I have. You've 12 already told me that IARC does not evaluate MDS as a 13 carcinogenic end point. So my question is: What criteria 14 are you employing for your assessment that you've 15 provided? 16 A. I understand that now. I think there was a 17 little confusion generated by perhaps the way I phrased my 18 answer. As you know, apparently, IARC begins with two 19 subclassifications of the evidence, one for humans and one 20 for animals. And then from those two subclassifications, 21 it attempts to derive an overall categorization. What I 22 was trying to say when I referred to IARC was that that's 23 what I would do for benzene and MDS. That is I would ask 24 whether or not the human evidence is sufficient, limited, 25 or inadequate, and I would ask whether the animal evidence 108 1 is sufficient, limited, or adequate. And I would require 2 before I could make a causal inference that the human 3 evidence is sufficient. And as I would have understood it 4 in this case, it wasn't for benzene but for diesel 5 exhaust. However, I say the same thing for benzene. 6 Q. Well, you're referring to IARC Group 1. Correct? 7 When you say sufficient, sufficient evidence of 8 carcinogenicity in humans, you're referring to a Group 1 9 designation by IARC. True? 10 A. Yes. I think that is equivalent. 11 Q. And the standard that IARC employs for making 12 that determination is in part, in large part epidemiology. 13 True? 14 A. There are two answers to that question or two 15 parts to an answer. It used to be true that the judgment 16 with regard to the human evidence had to be in the 17 category sufficient for an agent to fall into the overall 18 judgment of Group 1 sufficient evidence. However, about 19 five or six years ago, they modified that criterion and 20 have relaxed it somewhat. I consider that inappropriate, 21 and I have not made that relaxation. 22 Q. Fine. Under the former unrelaxed standard, what 23 was the standard as you understand it for epidemiologic 24 evidence for IARC to deem a chemical carcinogenic to 25 humans? 109 1 A. In the final analysis, it became -- it could be 2 defined as a majority vote of the working group. 3 Q. Okay. And the working group evaluated the 4 evidence using certain criteria, however. True? 5 A. Well, those criteria -- the answer to your 6 question is yes, that's true. 7 Q. And are those the same criteria that you're using 8 for your assessment or not? 9 A. Well, now I have to develop the answer because -10 Q. Please. 11 A. -- each individual member of the working group 12 was allowed to reach his or her own judgment in his or her 13 own way. And beyond that the criteria were rather general 14 and basically were of the type that there is a reasonably 15 consistent, often statistically significant, unlikely to 16 be confounded set of findings. And whether or not those 17 criteria were fulfilled was a judgment that each member of 18 the working group made, and I'm saying that that's a 19 judgment that I also attempt to make. 20 Q. And your personal judgment on this issue based 21 upon what you've reviewed is that there's insufficient 22 evidence for benzene and MDS? 23 A. And for diesel and MDS. 24 Q. Okay. 25 A. And for diesel and AML. 110 1 Q. Okay. Now, it's true at that IARC has never 2 evaluated benzene and MDS employing those criteria. True? 3 A. I can't affirm that that is true, but I would say 4 that it is probably true, and I don't know that they have. 5 I wouldn't think they would because MDS is not a cancer. 6 Q. Right. Okay. Now, lastly, we did get faxed or 7 e-mailed here a list of cases. I'd like you to take a 8 look at that. 9 A. You said last week? 10 Q. Lastly. 11 A. Lastly. Sorry. 12 Q. And my question is: Which of those cases there 13 concern benzene? 14 A. All right. I'll need a minute to go through 15 this. 16 Q. Sure. 17 A. (Witness peruses document.) 18 If we look at No. 9, this is actually a diesel 19 exposure and to some extent benzene. However, the outcome 20 is not an LHC. 21 13, there are actually two cases there. The 22 Martindale case is a benzene, and as I recall it was CLL, 23 and the Casas is benzene and pancreas cancer. 24 Q. What was the name of the attorney who took your 25 deposition in those cases? 111 1 A. In Casas and Martindale? 2 Q. Yes. 3 A. I don't recall his name. 4 Q. Was it Herschell Hobson, by chance? 5 A. No. 6 Q. Have you been deposed by Herschell Hobson? 7 A. On one occasion many, many years ago. This 8 person may have been in his firm, but I don't recall his 9 name. Let me just finish. 10 Q. Go ahead. 11 A. Well, 14, of course, is the same. 15 is a case 12 in which benzene is one of the issues. Is this your copy 13 or mine? 14 Q. Yes, it was. Thank you. Okay. We are done. 15 Same stip? 16 MR. AMUNDSON: Same stip. 17 MR. METZGER: Based upon the prior agreement that 18 I believe we reached regarding signing and execution and 19 changes, the stipulation will be that the court reporter 20 may forward the original transcript directly to Dr. Cole; 21 and that he may have until February 19th to make the 22 corrections that he wishes and sign the transcript and 23 notify me of the changes, notify all counsel of the 24 changes; he will then forward the original transcript to 25 me, and I will keep it; if the original is not signed or 112 1 is somehow lost, a certified copy may be used with full 2 force and effect. 3 (Discussion held off the record.) 4 MR. AMUNDSON: So we're amending the stipulation 5 that in the event Dr. Cole does not receive the 6 deposition, the original transcript until after the 19th, 7 or even if it's a day before the 19th, we will give him an 8 extra week from his receipt to sign it. And then we'll 9 make our best efforts to immediately notify all parties. 10 MR. METZGER: He's notifying us. 11 MR. AMUNDSON: He will notify us, or perhaps 12 he'll ask us to notify you. But you will get notification 13 either way -14 MR. METZGER: Right. 15 MR. AMUNDSON: -- within a week of his receipt. 16 THE REPORTER: Do you want a copy, Counsel? 17 MR. AMUNDSON: Yes, please. 18 (Proceedings concluded at 2:23 p.m.) 19 * * * 20 21 22 23 24 25 113 1 DECLARATION 2 3 4 5 I hereby declare I am the deponent in the within 6 matter; that I have read the foregoing deposition and 7 know the contents thereof, and I declare that the same is 8 true of my knowledge except as to the matters which are 9 therein stated upon my information or belief, and as to 10 those matters, I believe it to be true. 11 I declare under the penalties of perjury of the 12 State of California that the foregoing is true and 13 correct. 14 Executed this day of , 15 200 , at , California. 16 17 18 19 20 21 PHILIP COLE, M.D. 22 23 24 25 114