Document v1QRQJewdbK6xZZRm9jpeBLKb

GSP/comp CAUSE NO. 2000-31175 SPRING BRANCH INDEPENDENT SCHOOL DISTRICT. Plaintiff, VS. LEAD INDUSTRIES ASSOCIATION, INC., AMERICAN CYANAMID CO., ATLANTIC RICHFIELD CO., E.I. DuPONT deNEMOURS & CO., THE O'BRIEN CORPORATION, THE GLIDDEN CO., SCM CHEMICALS, NL INDUSTRIES, INC. and THE SHERWIN-WILLIAMS COMPANY, Defendants. IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 11t h JUDICIAL DISTRICT VIDEOTAPED DEPOSITION OF: PETER REICH JANUARY 28, 2002 Worldwide Corporate Headquarters 3000 Weslayan, Suite 235 COMPRESSED COPY WITH WORD INDEX For Services Worldwide N40009 Texas Regional Office 4245 N. Central Expwy, Suite 475 1 NO. 2000-31175 2 SPRING BRANCH INDEPENDENT ) IN THE DISTRICT COURT OF SCHOOL DISTRICT, ) 3 Plaintiff, ) ) 4 VS. ) ) 5 LEAD INDUSTRIES ) ASSOCIATION, INC., ) 6 AMERICAN CYANAMID CO., ) ATLANTIC RICHFIELD CO., ) HARRIS COUNTY, T E X A S 7 E.I. duPONT de NEMOURS & ) CO., THE O'BRIEN ) 8 CORPORATION, THE GLIDDEN ) CO., SCM CHEMICALS, NL ) 9 INDUSTRIES, INC., and THE) SHERWIN-WILLIAMS COMPANY,) Defendants. ) 11TH JUDICIAL DISTRICT ORAL AND VIDEOTAPED DEPOSITION OF PETER REICH JANUARY 28,2002 ORAL AND VIDEOTAPED DEPOSITION ofPETER REICH, produced as a witness at die instance of the Defendant NL Industries, Inc., and duly sworn, was taken in the above-styled and numbered cause on the 28th day of January, 2002, from 9:49 a.m. to 5:06 p.m., before Gayle Shaffer Patterson, CSR in and for the State of Texas, reported by stenographic method, at the offices of Kirkpatrick & Lockhart, 75 State Street, Sixth Floor, Boston, Massachusetts, 02109, pursuant to the Texas Rules ofCivil Procedure (and the provisions stated on the record or attached hereto.) 1 INDEX 2 PAGE 3 Appearances.................................. 2 4 Stipulations......................... ....... 6 < 6 PETER REICH 7 Examination by Mr. Hardy......... ...... 6 8 Examination by Mr. Smith.......... ...... 108 9 Examination by Mr. Hardy......... ...... 110 10 Examination by Mr. Sullivan...... .......Ill 11 Examination by Mr. Smith......... ...... 114 12 Examination by Mr. Hardy......... .......114 13 Examination by Mr. Smith......... ...... 215 14 Examination by Mr. Sullivan...... ....... 221 15 Examination by Ms. Fuhr........... ..... 235 16 Examination by Mr. Hardy......... ....... 237 17 Examination by Mr. Sullivan..... ....... 239 18 Changes and Signature.................... .... 241 19 Reporter's Certificate....................... .243 20 21 EXHIBITS 22 NO. DESCRIPTION PAGE 23 178 Curriculum Vitae of Peter Reich 9 24 179 Boston University School of Public Health, Environmental Health 25 Faculty and Staff 21 APPEARANCES FOR THE PLAINTIFF: Mr. Ronald Scott BRACEWELL & PATTERSON South Tower Pennzoil Place 711 Louisiana, Suite 2900 Houston, Texas 77002 FOR DEFENDANT NL INDUSTRIES, INC.: Mr. Timothy S. Hardy KIRKLAND & ELLIS 655 Fifteenth Street, N.W. Suite 1200 Washington, D.C. 20005 FOR DEFENDANT LEAD INDUSTRIES ASSOCIATION, INC.: Mr. Mark L. Sullivan SULLIVAN, SULLIVAN & NAHIGIAN 100 Franklin Avenue 12 Boston, Massachusetts 02110 13 FOR DEFENDANT E.I. duPONT de NEMOURS & CO.: 14 Ms. Joy C. Fuhr Mc Gu ir e w o o d s b a t t l e & b o o t h e , l .l .p . 15 One James Center 901 East Cary Street 16 Richmond, Virginia 23219-4030 17 FOR DEFENDANTS SCM CHEMICALS and THE GLIDDEN COMPANY: 18 Mr. Scott A. Smith HALLELAND LEWIS NILAN SIPKINS & JOHNSON 19 Pillsbury Center South 220 South Sixth Street, Suite 600 20 Minneapolis, Minnesota 55402 21 ALSO PRESENT: 22 Ms. Beth Beaumier, Videographer 23 24 25 1 EXHIBITS (Continued) 2 NO. DESCRIPTION PAGE 3 180 Time and Expenses on Bracewell & 4 Patterson starting March 22,2001" 51 5 181 "BriefHistroy of the Mining, Smelting, and Refining Industry" 6 prepared by Peter Reich, MPH 54 7 182 Affidavit ofPeter Reich in Civil Action No. 5:0ICV21I 8 (Jefferson County School District) 154 9 183 "The Teacup and The Sponge" by Peter Reich, Copyright 1991 199 10 184 Page referencing designated 11 areas oftestimony to be given by Mr. Reich 211 12 13 REQUESTED INFORMATION/DOCUMENTS 14 NO. DESCRIPTION PAGE 15 1 Copy of 1974 article written by 16 Mr. Reich published in Soho Weekly News regarding risks 17 to children of lead 27/28 18 2 Copy of any of the referenced "50 articles" having anything to 19 do with lead or lead paint 28 20 3 Copy ofbibliography by Mr. Reich on childhood lead poisoning 21 previously provided to Mr. Leifer 30 22 4 Copy ofMr. Reich's written memoranda regarding summary 23 of thinking previously provided to Mr. Leifer 30/31 24 25 Worldwide Court Reporters, Inc. 1-800-745-1101 1 (Pages 1 to 4) 57 1 REQUESTED INFORMATION/DOCUMENTS (Continued) 2 NO. DESCRIPTION PAGE 3 5 Copy ofmemorandum prepared by 4 Mr. Reich for Mr. Leifer regarding findings at National 5 Archives on the subject ofNational Bureau ofStandards 47/48 6 6 Copy ofthe page in G.B. Heckel's 7 book regarding regulation ofpaint and 167 pieces oflegislation 160 8 7 Copy ofthe note by Mr. Reich 9 regarding missing documents from public collections 10 (Philadelphia ordinance) 167 11 8 Copy ofdocumentation re: Manfred 12 Bowditch/Department of Labor proposal for a regulation 13 to protect workers (early Thirties) 168/169 14 15 16 17 18 19 20 21 22 23 24 25 1 that? 2 A At Bates College. 3 Q That was as an undergrad? 4 A It was. 5 Q And -6 A At the University of Grenoble in France and 7 at Boston University, Schoolof Public Health. 8 Q What sort of history training did you have 9 at Bates? 10 A European history, French history, American 11 history. 12 Q Did you have a major in history? 13 A I did not. 14 Q What did you major in? 15 A French, with a minor in geology. 16 Q What sort of history did you study at 17 Grenoble? 18 A Mostly literature. 19 Q Were these courses you were taking toward a 20 degree? 1 I 1 1 1 21 A They were towards a certificate. 22 Q And what is a certificate? It's probably a 23 French term. 24 A Well, it's a -- it's an official statement 25 that I have completed certain courses at the j 1 6 1 PROCEEDINGS 2 THE VIDEOGRAPHER: On the record at 3 9:49 a.m., beginning the deposition with Tape 1. 4 THE REPORTER: By the Texas Rules? 5 MR. HARDY: Yes. 6 THE REPORTER: Signature? 7 MR. SCOTT: Yes. 8 PETER REICH, 9 having been first duly sworn, testified as follows: 10 EXAMINATION 11 BY MR. HARDY (9:49): 12 Q Good morning, Mr. Reich. 13 A Morning. 14 Q My name is Tim Hardy. I represent NL 15 Industries in this case. 16 A M-h'm. 17 Q And I'm accompanied by other lawyers who 18 represent others ofthe defendants in the Spring 19 Branch School case. 20 Do you have a degree in history, 21 Mr. Reich? 22 A I do not. 23 Q Have you studied history? 24 A Yes. 25 Q And where did -- where and when did you do 81 1 university. 1 2 Q How long were you there? I 3 A One year. 1 4 Q And you said your, quote, history courses I 5 were mostly about literature. 1 6 A Uh-huh. I 7 Q Can you just expand on that, please. 8 A Well, it was really -- it had -- a lot of it 9 was Nineteenth Century literature and history. 10 Q Was that French literature and history? 11 A Yes, it was. 12 Q Exclusively? 13 A Pretty much, yes. 14 Q And you said you may have had some history 15 courses at Boston University. Could you tell me about 16 those, please. 17 A Those were in the area of history of public 18 health. 19 Q And how many such courses were there? 20 A Well, there was one course that I can think 21 of; but in most of my courses, I chose to develop 22 themes around the history of public health. 23 Q Are you speaking of courses you were 24 taking? 25 A I took -- 1 took independent studies, for Worldwide Court Reporters, Inc. 1-800-745-1101 2 (Pages 5 to 8) 9 1 example, that allowed me to pursue the history of 2 public health. 3 Q What sort ofwork did you do in those 4 independent studies? 5 A One was the history of contraception, which 6 was published as a chapter in a book. Another was the 7 history of die dairy industry, which resulted in 8 numerous publications put out by the dairy industry. 9 Q Let's mark as Exhibit 178 your curriculum 10 vitae, Mr. Reich. 11 (Exhibit No. 178 marked.) 12 Q (BY MR. HARDY) Let me show you Exhibit 178 13 and ask whether, indeed, that is your CV? 14 A This is my CV. 15 Q Is it current? 16 A One thing is missing, and that is that 1 am 17 on the board ofmanagers of a small Quaker boarding 18 school in Poughkeepsie, New York, and that is not on 19 there. 20 Q Anything else missing that -- 21 A I don't think so. 22 Q You mentioned the work you did on the 23 history of the dairy industry. Are any ofthose 24 articles listed on the CV? 25 A Well, it says "about 50 articles and news 11 1 A 1 was. 2 Q Was that work sponsored by the dairy 3 industry in any way? 4 A It was. 5 Q And you indicated that some of the work you 6 did was subsequently published by the dairy industiy; 7 is that right? 8 A Yes, it was. 9 Q Do you recall where it was published? 10 A Ido. Hoard's Dairyman, Farm Journal, and I 11 think one or two others. Sanctuary, the publication 12 of the Massachusetts Audubon Society. 13 Q Why was the milk industry publishing such 1 14 information? 15 A I would Say there were two reasons. One is 16 that the data was interesting, and the other one was 17 that I was a good writer. 18 Q Did the publications support in some way the 19 views of the dairy industry? 1 20 A Not always. 21 Q When did they and when didn't they? 1 1 22 A When -- when the data and the information I 23 was supportive of nutritional properties offluid j 24 milk, it was preferred. There were some issues around 1 25 lactose intolerance, which some people in the dairy | 10 1 items in popular and trade press, 1974 to" -- they are 2 not listed. 3 Q Indeed, it does. 4 A And then the "Vitamin A and Carotenoids in 5 Human Milk" and the "Survey of Vitamin Content of 6 Fortified Milk," these were based largely on -- 7 largely on historical research and were intended to 8 confirm that. 9 Q You say they were based on historical 10 research. Am I right that these are studies of 11 analytical chemistry -- 12 A That's right. 13 Q -- findings? 14 A Yes. 15 Q And am I right in saying that your role as a 16 coauthor of these studies was to look for previously 17 published data? 18 A At the time, betacarotene was a 19 micronutrient of great interest to the nutrition 20 community, and certain breeds of dairy cows produced 21 significantly more betacarotene than others. And this 22 information had been forgotten and certain parties 23 were interested in confirming that that was, indeed, 24 the case. 25 Q And you were involved in working on that? 12 1 industry were not as pleased with. 2 Q And when you say you were sponsored in some 3 way by the dairy industiy, was there a particular 4 organization that paid you money? 5 A Yes, there was. 6 Q What was it? 7 A The American Guernsey Cattle Club; Lactate, 8 Incorporated; H.P. Hood here in Boston. 9 Q For about how long did you look into these 10 milk issues? 11 A Five or six years, probably. 12 Q Which would have included, I gather, given 13 your publications, the years 1989 and 1990? 14 A Right I think I had--1 had started 15 full-time work at Boston University by that time. 16 Q Did any ofthe history courses you took. 17 Mr. Reich, at Bates or Grenoble or Boston University 18 have as their subject the methodology ofhistory? 19 A I don't remember. 20 Q Do you recall ever having taken a course in 21 the methodology ofhistorical research? 22 A I don't think so. 23 Q Were the courses -- let's go back. 24 You indicated one course you took at 25 Boston University in the public health school was a 1 Worldwide Court Reporters, Inc. 1-800-745-1101 3 (Pages 9 to 12) 13 1 history course. 2 A (Moving head up and down.) 3 Q What was the scope of that course? 4 A The history of public health. 5 Q Do you recall who taught it? .6 A David Ozonoff. 7 Q And you would have taken that course in 8 1978,1979? 9 A Between '76 and '79. And I would also 10 hasten to add that there was one and possibly two 11 independent studies as well. 12 Q Well, one of the independent studies, I 13 think you said, had to do with the issues we've been 14 discussing with the milk industry; is that right? 15 A Yes. 16 Q And the other independent study had what as 17 its general subject matter? 18 A 1 think that it was this publication on the 19 history of contraception. 20 Q Were any of your articles on milk published 21 in peer review journals? 22 A No. 23 Q Was the chapter on the history of 24 contraception peer reviewed as part of the publication 25 process? 15 1 Q Any of the others? 2 A I don't think so. 3 Q And your first publication here, "The Hour 4 of Lead"," am I right that that is not -- that article 5 was never peer reviewed? 6 A That's correct. 7 Q Did you ever attempt to publish that 8 article? 9 A Yes. 10 Q Inwhatjoumaldidyouseektohaveit 11 published? I 12 A 1 sought to have it published as a popular | 13 press publication. 14 Q And this would have been after it was 15 printed by the Environmental Defense Fund? 16 A No. 17 Q Was the publication as a popular piece, | 18 which did occur, the publication by the Environmental 1 19 Defense Fund? 1 20 A I didn't understand the question. 8 21 Q Yeah. I'm sorry. 22 You wrote ""The Hour of Lead"," 1 j 23 correct? 24 A Yes. 25 Q Did you write "The Hour of Lead" for the I 1 8 14 1 A I'm not sure. 2 Q That -- 3 A It was subjected to scrutiny by peers, but 4 there may not have been a peer review panel. 5 Q You did provide us with that chapter. It 6 wasn't clear to me what book it's in. Can you help 7 me? 8 A The Woman Patient, Volume 1, Plenum 9 Publishers. 10 Q You got it? 11 A 19 -- it's not in here? 12 Q I don't think so. I know you gave us a copy 13 of the chapter. 14 A Yeah, Plenum, 1978. 15 Q Oh, there it is. That's right. You're 16 right. I'm sorry. Thank you. 17 Have -- on page 2 of Exhibit 178 are a 18 list of your publications. Have any of those 19 publications gone through the peer review process? 20 A I would imagine that the two on Vitapiin A 21 were. 22 Q That would be the article in the Journal of 23 Agriculture and Food Chemistry and the article in the 24 Journal of Official Analytical Chemists? 25 A Yes. 16 1 Environmental Defense Fund? 2 A That's not a yes-or-no answer. 3 Q I'd be glad to let you elaborate. 4 A 1 wrote a manuscript that I sent to my 5 agent before I was contacted by the Environmental 6 Defense Fund and tried to have that published. At | 7 that time, it was called "The Teacup and The Sponge." I 8 My agent was unsuccessful in marketing this book. 9 Subsequently, I was contacted by the Environmental 10 Defense Fund, and we came up with a different title. 11 Q And then the Environmental Defense Fund in 12 1992 published? 13 A That's right. 14 Q Do you currently teach any courses at Boston 15 University, Mr. Reich? 16 A Yes and no. 17 Q I'd be glad to let you elaborate. 18 A I am a facilitator rather than a teacher, a 19 facilitator in a course for first-year medical 20 students. These are problem-based courses, and my job 21 is to guide the students rather than to teach them. 22 So some people could call it teaching. They like to 23 call it facilitating. 24 Q What is the subject matter ofthat course? 1 25 A The subject matter is the literature of j Worldwide Court Reporters, Inc. 1-800-745-1101 4 (Pages 13 to 16) 17 1 medicine. The main purpose ofthe course is to teach 2 students to think analytically, to ask the right 3 questions, to form hypotheses, and in my classes, to 4 go to the library and find the right paper quickly and 5 efficiently. 6 Q These would be papers on medical subjects? 7 A Yes. 8 Q You've been at Boston University since, I 9 guess, 1987; is that correct? 10 A I came as a student in 1976. 11 Q You've been on the faculty since 1987? 12 A No, since 1979,1 think. Let's see. 13 Well, it says 1979 is when I started 14 the seminar as an instructor. 15 Q At the School of Public Health? 16 A Yes - well, at the time the School of 17 Public Health was a school within a school. The 18 course that I was teaching in the medical --1 was 19 teaching medical students in the School of Medicine. 20 Q Did there come a time when you became a 21 member ofthe faculty at the Boston University School 22 of Public Health? 23 A Yes. 24 Q When was that? 25 A I think it was 1979. , 19 1 Q Are those two different things? 2 A They are. 3 Q Could you describe the difference, sir, or 4 each, please. 5 A Medical literature -- well, you could --1 6 guess you could maybe use them interchangeably. The 7 medical literature, 1 would say, is the books and 8 journal articles that document the development ofpeer 9 reviewed medical knowledge. The literature of 10 medicine is the way in which writers and poets have 11 dealt with medicine as a theme. 12 Q And the course you were teaching dealt with 13 both? 14 A It did. We published a paper called "A New 15 Pun on the Birth of McDuff." My coauthors are all my 16 minority students from the Atlanta University system. 17 Q In that course, did you have any particular 18 material that you used to teach the students about 19 medical literature? 20 A Yes. 21 Q What sort ofmaterials were they? 22 A Well, by "medical literature," you're now 23 referring to the technical -- 24 Q Yes, I am indeed, right. 25 A The primary tools were "Accumulated Index | I 1 | | | 1 1 18 1 Q Since 1979, have you taught courses at the 2 School of Public Health? 3 A No. 4 Q How long have you been serving in your role 5 as a facilitator of courses at Boston University? 6 A Since 1979, with a hiatus -- with a hiatus 7 between 1989 and '98,1 think. 8 Q Were the subjects of those courses in which 9 you were a facilitator throughout this period similar 10 to what you've already described you're currently 11 doing? 12 A No. 13 Q What sort of courses did you facilitate 14 prior to teaching? 15 A Prior to that, I was a teacher in a course 16 for -- especially designed for minority students that 17 was developed by Boston University to acquaint them 18 with the literature of medicine and the medical 19 literature; and in that course, we studied the history 20 of medical literature. 21 Q Those were medical students? 22 A They were. 23 Q You referred a second ago to the literature 24 of medicine and also to medical literature. 25 A That's right 20 1 Medicus," Medline, "Science Citation Index," and most 2 importantly, the Stacks. 3 Q What -- why were the Stacks most important? 4 A I try to give my students an appreciation 5 of the history ofmedicine. And with almost every 6 class, we go to Countway Medical Library and go to the 7 rare books room and look at historical documents. 8 Basically, I strive to encourage my students to always 9 go back and find the sources. 10 Q Am I right that you have not published any 11 articles on the history of medicine? 12 A That's right. 13 Q Do you have tenure? 14 A Boston University School of Medicine does 15 not have tenure. 16 Q You're currently at Boston University titled 17 the assistant to the dean? 18 A Assistant -- I think that and my other title 19 is director of special projects. 20 Q And with the exception of the course you're 21 facilitating for medical students, am 1 right that you 22 currently have no teaching duties? 23 A Well, I'm responsible -- the Federal 24 government in 1991 required that any institution of 25 higher learning that has Federal training grants | I 1 1 1 1 Worldwide Court Reporters, Inc. 1-800-745-1101 5 (Pages 17 to 20) 4 21 1 provide formal instruction in the responsible conduct 2 of research. For the last ten years, I have directed 3 that program at the Boston University School of 4 Medicine. 5 Q Does that program include teaching students? 6 A It includes putting on formal instruction 7 for students. 8 Q Are you currently considered a member of the 9 faculty of the School ofPublic Health? 10 A Yes. 11 Q Are you in the environmental health section? 12 A I am. 13 Q Maybe you could just help me, then. 14 MR. HARDY: Let's mark this as Exhibit 15 179. 16 (Exhibit No. 179 marked.) 17 Q (BY MR. HARDY) I checked out the Boston 18 University School of Public Health Environmental 19 Health Faculty and Staff web site a week or two ago 20 and got this list of faculty and staff. 21 A And I'm not there, right? 22 Q You were not there. I wondered ifthere's a 23 reason for that. 24 A There probably is. I believe the reason is 25 that up until, what, this fall, my appointment was in 23 1 and HUD and OSHA? 2 A No. 3 Q Do you have any expertise, Mr. Reich, in 4 toxicology? 5 A No. 6 Q Do you have any expertise in the history of 7 business in the United States? 8 A No. 1 9 Q Other than the work you've done with respect 1 10 to lead paint and the article "Hour of Lead," have you 1 11 ever done research or any writing on the response of 1 12 any other industry to issues of toxicity? 13 A The milk industry. 1 | 14 Q Any other industry? | 15 A I was a member ofthe board of health in my I 16 community for 13 years. 17 Q Thafs Leverett? 18 A Yes. Gateway to Wendell. Thafs a 1 1 1 19 Massachusetts joke. 1 20 Q I've got to ask you to explain it. 21 A Well, Wendell is out there. 1 1 22 Q Okay. 23 A And in that capacity, I had the opportunity 24 to interact with power companies, utilities, in terms 25 of spraying rights-of-way, things like that. So 22 1 the Department of Health Services. And a few weeks 2 ago, with the agreement of the dean of School of 3 Public Health and the chairman ofthe department, my 4 appointment was changed to the Department of 5 Environmental Health. 6 Q Is there a reason for that? 7 A My interests and my activities were more in 8 line with the Department of Environmental Health than 9 Health Services. I do have a faculty appointment at 10 Boston University School of Public Health. 11 Q Do you have any expertise, Mr. Reich, in 12 industrial hygiene? 13 A No. 14 Q Do you have any expertise in government 15 regulations? 16 A Yes -- well, I don't know what you mean by 17 "expertise," I guess. I'm familiar with a lot of 18 those things. 19 Q 1 gather you're saying you're familiar 20 with -- are you familiar with government regulations 21 pertaining to lead paint -- 22 A Some -23 Q -- today? 24 A Somewhat. 25 Q Do you consider yourself an expert on EPA 24 1 there -- I gained some familiarity with current issues 2 there. 3 Q But you have not conducted research or 4 written about -- 5 A I have not. 6 Q -- the history ofthose industries? 7 A No, I have not. 8 8 Q Do you have any expertise, Mr. Reich, in 1 9 architecture? I 10 A I do not. 11 Q Building construction? 12 A No. 13 Q Paint technology? 14 A Well, I don't know if I'd call it expertise, 15 but I have some knowledge about it 16 Q And how have you gained knowledge about 17 paint technology? 18 A I've gained that knowledge by reading and 19 talking with other people. 20 Q What sort ofthings have you read? 21 A Well, I would go to the Stacks at Sloan 22 School of Management at Boston University, University 23 ofMassachusetts, and go to the paint technology 24 section and sit down and read. 25 Q And I believe you've given us some of the Worldwide Court Reporters, Inc. 1-800-745-1101 6 (Pages 21 to 24) 25 1 articles you've read -- 2 A I believe I have. 3 Q --by Mattiello? 4 A Mattiello. 5 Q Who was Mattiello? 6 A He was a well-known, highly regarded paint 7 technologist. People worshipped him. 8 Q And am I right that he published multiple 9 volumes written by many experts in paint technology? 10 A That's cor -- that's my recollection. 11 Q And is it your understanding that those 12 volumes were basically state-of-the-art descriptions 13 of paint technology when they were written? 14 A It does seem that way in retrospect, yes. 15 Q Do you have any expertise, Mr. Reich, in 16 chemistry? 17 A No. 18 Q Or engineering? 19 A No. 20 Q Do you have any expertise in the history of 21 warning labels used on products in the United States? 22 A I have some familiarity with that. 23 Q From what sources have you gained 24 familiarity? 25 A From legislative histories, from history 27 1 paint technology? 2 A Colleagues at my School of Public Health, 3 hardware store technicians, old-time painters. 4 Q Have you talked to any -- I'll call them 5 paint chemists, people who actually formulated paint? 6 A I have not 7 Q Have you talked to any current or former 8 employees of paint or pigment companies about paint 9 technology? 10 A I have not. 11 Q Let me just double-check something. On 12 Exhibit 178, as you pointed out on the second page. 13 there's a reference to 50 articles and news items in 14 popular and trade press. 15 A (Moving head up and down.) 16 Q Do any of those 50 articles and news items 17 have anything to do with lead? 18 A They do. 19 Q Do you recall which of them had something to 20 do with lead? 21 A I wrote an article in 1974 for a newspaper 22 called the Soho Weekly News in New York City. 23 Q What was the subject? 24 A The subject was the risks to children of 25 lead. 1 1 1 | I 26 1 books, from accounts by leaders in the paint 2 industry. 3 Q Does your knowledge of the history of 4 warning labels used on products go beyond your 5 familiarity with what you've collected with -- on that 6 subject on the paint industry? 7 A A bit. 8 Q What have you discovered on the history of 9 the use ofpaint -- on the use of warnings outside the 10 paint industry? 11 A Well, a lot of my colleagues were involved 12 in the tobacco warnings and saccharin, and so I've sat 13 in on discussions about those types of issues. 14 Q Anything in particular you've read on those 15 subjects? 16 A I guess not. 17 Q Would any of those discussions you had about 18 warnings on products other than paint have involved 19 warnings before World War II? 20 A I don't think so. 21 Q A minute ago you told me that some of what 22 you knew about paint technology you learned from 23 talking to people. 24 A (Moving head up and down.) 25 Q Do you recall who you've talked to about 28 1 Q Do you happen to have a copy of that? 2 A Not handy. I mean, not on me -- 3 Q No. 4 A -- but I have one at the home office, yes. 5 MR. HARDY: I request it please, Ron. 6 Q (BY MR. HARDY) Have you -- any ofthe other 1 7 50 articles and news items have anything to do with 1 8 lead? 9 A I don't remember. 10 Q Ifyou should happen to recall one that has 11 to - 12 A Sure. 13 Q -- do with lead or lead paint. I'd 14 appreciate a copy. 15 What caused you to be interested in 16 lead and children in 1974? 17 A One ofthe big names in lead research was 18 H.A. Schroeder. And a good friend of mine was the 19 director of his laboratory in Brattleboro, Vermont, 20 and he shared with me papers on his concerns at the 21 time. 22 Q And was your Soho Weekly News article, in 23 part, based on those papers from Mr. Schroeder? 24 A Well, yes, Mr. Schroeder and his assistant. 25 Mr. Darrell -- Dr. Schroeder. Worldwide Court Reporters, Inc. 1-800-745-1101 7 (Pages 25 to 28)  29 1 Q Between 1974 when you wrote the Soho Weekly 2 News article and around the early 1990s when 'The Hour 3 of Lead" was being written, did you write anything on 4 lead or lead paint? 5 A Between -- what was the first starting 6 year? 7 Q 1974, which was the date you said for the 8 Soho article. 9 A Right. I did not -- well, starting -10 starting in 1987 is when I became interested in lead 11 again. 12 Q And let me follow up on that. What caused 13 you to become interested in 1987? 14 A My mentor at the School of Public Health, 15 Dr. Ozonoff, indicated to me that some attorneys in 16 Boston were interested in developing a bibliography on 17 childhood lead poisoning, and I expressed an interest 18 and began doing that work. 19 Q Did you meet with those lawyers? 20 A I did. 21 Q Was that Neil Leifer? 22 A It was. 23 Q Were you being paid at that time by 24 Mr. Leifer's law firm? 25 A I was. 31 1 memorandum -- memoranda summarizing my thinking 2 at the time. 3 Q Do you have copies of those memoranda? 4 A Probably. 5 Q I guess I'd also request those, please. 6 A Okay. 7 Q Did Mr. Leifer and any other law firm -- or 8 any other lawyers in his firm ask you to write "The 9 Hour of Lead"? 10 A No. 11 Q What prompted you to write that document? 12 A I got my first typewriter when I was 8. 1 j 13 write pretty much all the time. And 1 just started 1 14 writing. 1 15 Q And I believe you said you then provided the I 16 manuscript to your agent? 17 A That's correct. | 18 Q Was he trying to get it published? 19 A She. 20 Q She. Sorry. I hate -- duly corrected. 21 She was then trying to get it published 22 as a book? 23 A Yes. 1 24 Q And nobody bought it? I 25 A That's correct. 1 30 1 Q Did you then serve as an expert witness for 2 Mr. Leifer in the Santiago case? 3 A 1 don't think so. 4 Q Do you recall -- 5 A I was -- I think I was a consultant. 6 Q Do you recall the submission of an affidavit 7 in your name in the Santiago lawsuit? 8 A I don't think so. 9 Q You don't recall writing an affidavit for 10 Mr. Leifer in probably 1989 or '90? 11 A I really don't. 12 Q Do you recall about how many times you met 13 with Mr. Leifer and other members ofhis firm? 14 A Less than a dozen, probably. 15 Q You said you provided him with a 16 bibliography? 17 A (Moving head up and down.) 18 Q Do you still have a copy of that 19 bibliography? 20 A I do. 21 MR. HARDY: I'd request a copy, please. 22 Ron. 23 Q (BY MR. HARDY) Did you provide Mr. Leifer 24 and his law firm with any other written materials? 25 A 1 provided them with occasional 32 1 Q Did you provide that manuscript to 2 Mr. Leifer or any of his cooperating lawyers? 3 A I don't think so. 4 Q Do you recall them ever providing any 5 comments on it? 6 A I think there was satisfaction with it. 7 Q Did you contact the Environmental Defense 8 Fund, or did they contact you? 9 A They contacted me. 10 Q Do you recall who it was at EDF who called 11 you? 12 A Karen Florini. 13 Q Do you know how she had heard about the 14 manuscript? 15 A I'm not sure. 16 Q When she called you, did she have a copy of 17 the manuscript? 18 A I don't know. 19 Q Do you know whether the Environmental 20 Defense Fund asked anyone else to review the 21 manuscript before they published it? 22 A I think they did. 23 Q Do you recall who? 24 A I think Ellen Silbergeld might have had a 25 look at it. Worldwide Court Reporters, Inc. 1-800-745-1101 8 (Pages 29 to 32) 33 1 Q Anybody else? 2 A I don't know. 3 Q Do you recall receiving any comments on the 4 manuscript from Dr. Silbergeld? 5 A No, I don't. 6 Q Did you change the manuscript that you had 7 originally sent to your agent before it was published 8 by the Environmental Defense Fund? 9 A I really don't remember. 10 Q Prior to the writing ofthe manuscript, what 11 methodology did you use to collect the information? 12 A What information? All the information? 13 Q The information in the manuscript. 14 A I'm not quite sure what you mean. 15 Q Okay. Let's try it this way: Would I be 16 right in assuming that prior to 1987, you had never 17 sought to collect information on the history of 18 companies who mine lead or companies who make lead 19 pigment or companies who -- 20 A That's not correct. 21 Q Good. What sort of research had you done on 22 that subject prior to 1987? 23 A Since 1972,1 was work -- been working on a 24 novel that takes place in the gold mines ofNew 25 Mexico, and I've been collecting information about the 35 I Mr. Leifer? 2 A I did. 3 Q And that bibliography would indicate, at 4 least at that time, what were the earliest references 5 to childhood lead poisoning you could find? 6 A That's correct 7 Q Were you looking for anything other than 8 early references to childhood lead poisoning? 9 A Yes. 10 Q What else were you looking for? 11 A I was looking for connections that would 12 make themselves apparent if I kept reading and taking 13 notes. 14 Q Did you have a methodology for conducting 15 this research? 16 A The principal method was not to read a paper 17 and look at the references and look retrospectively, 18 but it was to try to look prospectively as to see who 19 cited whom. 20 Q Could -- do you recall any examples from 21 your research of how that process worked? 22 A One example is the -- the way in which 23 American authors cited the Australian authors. 24 Q Could you just elaborate a little on what 25 that means? 1 | | 1 1 I | 8 | 1 1 34 1 history of mining since the early Sixties. 2 Q Had any of that research that you had done 3 in connection with the novel included looking at 4 information on lead paint or lead pigment companies? 5 A Not that I can recall. 6 Q So am I right in assuming that since there 7 is information in "Hour of Lead" on lead paint and 8 pigment, that that's information you started to 9 collect in around 1987 after Mr. Leifer asked you to 10 do some work? 11 A No. I started collecting it in 1974 when I 12 met this fellow from Dr. Schroeder's lab. 13 Q Was there historic information included in 14 your 1974 article? 15 A Yes. 16 Q In 1987, after Mr. Leifer asked you to help 17 him, did he explain what he was looking for? 18 A I think he did. 19 Q Do you recall what he said? 20 A No. 21 Q Do you recall what it was that you -- that 22 you thought you were looking for for Mr. Leifer? 23 A I thought I was looking for the earliest 24 references I could find to childhood lead poisoning. 25 Q And you put together a bibliography for 36 1 A I was curious when the American medical 2 writers would have known about what was happening in 3 Australia. 4 Q And how did you go about finding out the 5 answer to that question? 6 A 1 read a lot of footnotes. 7 Q That would have been footnotes in American 8 articles? 9 A M-h'm. 10 Q And you -- am I right, you were looking for 11 footnotes in American articles that referenced the 12 Gibson and other articles in Australia? 13 A (Moving head up and down.) That's correct. 14 Sorry. 15 Q Were there other issues like determining 16 whether the Americans were aware of the Australian 17 research which you recall looking at in this 1987 to 18 1990 period? 19 A I guess without your being more specific, I 20 can't answer that. 21 Q You've already indicated that you conducted 22 some ofthis research in the libraries in the Stacks 23 here in Boston. Did you do any archival research in 24 this period? 25 A I did. 1 I 1 1 Worldwide Court Reporters, Inc. 1-800-745-1101 9 (Pages 33 to 36) 37 1 Q Do you recall which archives you looked at? 2 A I went to the archives at Harvard Medical 3 Library, and I dispatched research assistants to 4 archival collections in the National Archives and 5 Records Administration and in certain cities around 6 the country. 7 Q Did you maintain a collection of what you 8 found in these various archives? 9 A If there was something found, I did. 10 Q And you still have it? 11 A Ido. 12 Q Did you provide copies of those findings to 13 Mr. Leifer? 14 A No, I don't think so. 15 Q Am I right in assuming that he was paying 16 for this research? 17 A No. 18 Q Did -- am I right in assuming Mr. Leifer 19 paid you to provide him with a bibliography? 20 A Yes. 21 Q But he was not paying for the entire 22 research effort? 23 A That's correct. 24 Q Did the -- since you were sending people 25 around the country, did that come out of some fund at 39 |j 1 A Do I have to answer that? 2 Q Well, no, I guess not, but I'd appreciate 3 it 4 A It is. 5 Q Okay. And therefore, it would be possible 6 if we wanted to review these documents that we could 7 do so, assuming your lawyer and we all agree? 8 A Assuming we all agree. I 9 Q And we'll discuss that subsequently. 10 Am I right, though, that these 10 to 12 I 1 11 linear feet are documents you've collected as opposed j 12 to things you have written or -- or -- as opposed to j 13 things you have written? 1 14 A Well, a few inches are things I've written, j 15 I guess. j 16 Q When you were doing this work from 1987 to j 17 1992, did you also receive some documents collected in j 18 litigation for Mr. Leifer to review? 19 A I did. 1 I 20 Q Do you recall what sorts of documents those 1 21 were? 1 22 A It had to do with the Santiago case. 23 Q Do you recall receiving from him minutes of 24 the Lead Industries Association? 25 A I think I did get that. 38 1 Boston University? 2 A No. Some ofthat was when I was working 3 with the Environmental Defense Fund. 4 Q Ahh. The Environmental Defense Fund 5 provided some funds to do that archival research? 6 A No. I--the Environmental Defense Fund 7 provided funds to me. It was my choice to follow up 8 on leads. So I figure I paid for that. I could have 9 kept that money, but I paid someone to go out and look 10 for information for me. 11 Q So in this period from 1987 to 1992, you 12 received some funds from Mr. Leifer's law firm to do 13 this work? 14 A Yes. 15 Q And you received some funds from the 16 Environmental Defense Fund to do this work? 17 A (Moving head up and down.) 18 Q Did you receive funds from anyone else to do 19 this work? 20 A Myself. 21 Q Do you have any idea ofhow large your 22 collection of articles and archival material that you 23 collected in this period is? 24 A Hold on. 10 to 12 linear feet. 25 Q And that's in your office in one location? 40 1 Q Do you recall receiving from him documents 2 from any of the companies who were defendants in the 3 Santiago case? 4 A Documents from the defendants. I don't 5 think so. 6 Q Did you receive any documents from 7 Sherwin-Williams' files? 8 A From him? 9 Q From him. 10 A I did not. To the best of my knowledge, I 11 did not. 12 Q At any time, either in this period or since, 13 have you received documents from Sherwin-William -- 14 having to do with the Sherwin-Williams Company? 15 A I don't think so. 16 Q Have you ever reviewed advertisements that 17 are in the public literature or they might be in 18 libraries from Sherwin-Williams? 19 A Yes. 20 Q When would you have done that? 21 A In the early Nineties, I collected some 22 Saturday Evening Post materials, but I just -- I'm not 23 recollecting if Sherwin-Williams was, indeed, one of 24 the parties there -- I mean, one ofthe companies 1 25 represented. Jf Worldwide Court Reporters, Inc. 1-800-745-1101 10 (Pages 37 to 40) 41 1 Q Do you remember in that collection of 2 Saturday Evening Posts looking at advertisements by 3 the National Lead Company? 4 A Yes. 5 Q Other than those advertisements in Saturday 6 Evening Post, which, as you recall, had to do in 7 part -- some of which had to do with the National Lead 8 Company, have you ever reviewed any other documents 9 that came from the National Lead Company as -- from 10 the production in litigation? 11 A From the production in litigation? I do not 12 believe I have. 13 Q Have you read anything about the National 14 Lead Company? 15 A Yes. 16 Q And that would have been in books on -- that 17 are cited in your various publications, I gather? 18 A Books and also magazine types ofthings. 19 Q But that would have -- what you've seen on 20 the National Lead Company, am I right, is all what one 21 might call secondary source materials rather than 22 primary source materials? 23 A Not necessarily. 24 Q Well, I guess Saturday Evening Post ads are 25 primary materials. 43 1 documents like those Lead Industries Association 2 minutes that that lawyer obtained through a lawsuit? 3 A No. 4 Q And I gather Mr. Scott hasn't provided you 5 with any such documents; is that right? 6 A That's correct. 7 Q He hasn't provided you with any documents on 8 National Lead Company? 9 A No, he hasn't 10 Q Nor the Sherwin-Williams Company? 11 A Well, what type of documents are you talking 12 about primary documents relating to -- no. 13 Q Okay. I mean, just to make sure we 14 understand each other, in the litigation starting in 15 Santiago and continuing to this day, the companies 16 have produced from company files many, many documents 17 and they've been provided to lawyers like Mr. Leifer 18 and Mr. Scott And the question is whether any of 19 those collections have been given to you. 20 A They have not 21 MR. SCOTT: Object to the form. 22 MR.HARDY: I-that'sfme. 23 MR. SCOTT: You can go ahead and 24 answer. 25 MR. HARDY: I got it. I just wanted to 42 1 A Are you sure? 2 Q Well, I thought you might be excepting 3 them. 4 What primary materials do you recall 5 having reviewed on the National Lead Company over the 6 years? 7 A I think there may be some materials in some 8 of the archival stuff from the National Archives, but 9 I'm not a hundred percent sure. 10 Q Perhaps some ofthe materials on the Federal 11 Trade Commission investigation of lead pigment 12 companies you might be recalling? 13 A Possibly. 14 Q Do you recall anything from the Harvard 15 archives having to do with the National Lead Company? 16 A I'm not a hundred percent sure. If I could 17 review the materials, I could verify that. But I 18 think that -- I think perhaps, but I just don't 19 remember exactly. 20 Q Whatever -- well, I mean, I guess what I'm 21 really interested in, I gather you recall Mr. Leifer 22 providing you with minutes of the Lead Industries 23 Association? 24 A Yes. 25 Q Has any other lawyer provided you with 44 1 clear that up. 2 Q (BY MR. HARDY) Since 1992, when "Hour of 3 Lead" was published, have you done any further 4 archival research on the subjects covered in that 5 manuscript? 6 A I have. 7 Q What sort of archival research have you done 8 since 1992? 9 A Since 1992,1 have had my research assistant 10 visit the National Archives in Washington and the 11 Hoover Archives in Iowa and the Hoover Papers in 12 Stanford, and I've had research assistants go to the 13 New York Public Library. 14 Q Are the materials found in those locations 15 included in your 10 to 12 linear feet? 16 A Yes. 17 Q Why did you send a research assistant to the 18 Hoover institute and library? 19 A I was interested in learning more about the 20 National Bureau of Standards' role in encouraging the 21 use of lead pigments. 22 Q Did you find anything in the Hoover 23 libraries relevant to that issue? 24 A Yes. 25 Q And that's included in the 10 to 12 feet? Worldwide Court Reporters, Inc. 1-800-745-1101 11 (Pages 41 to 44) 45 1 A Yes, it is. 2 Q What did those documents tell you about the 3 National Bureau of Standards' role in recommending the 4 use of lead paint? 5 A Those documents suggested that the 6 Department ofCommerce and the Bureau of Standards 7 were interested in encouraging people to use 8 lead-based paints. 9 Q Did those documents indicate why the 10 Department ofCommerce was interested in encouraging 11 lead-based paint? 12 A I think they did. 13 Q What did they indicate? 14 A That lead paints were better. 15 Q Did anything in those documents indicate 16 that the Department of Commerce and the National 17 Bureau of Standards' views that lead paints were 18 better were anything other than their genuine views on 19 the subject? 20 A If--well, if I answered that one way, it 21 would sound like they were devious people, wouldn't 22 it? 23 Q Did you -- I guess I'll ask it again. Let's 24 make it -- try and do it better. 25 A (Moving head up and down.) . 47 1 This work you did with the assist -- 2 with your research assistant looking for things at the 3 Hoover Library, at the New York Public Library, was 4 this done after you stopped working for Mr. Leifer and 5 before you first heard from Mr. Scott or his law 6 firm? 7 A I don't think 1 can answer that yes or no 8 because I just -- there's a lot ofresearch over 15 9 years. 10 Q When was the last time you did any work for 11 Mr. Leifer? 12 A I prepared a memorandum for him last 13 summer. 14 Q Had you done anything for Mr. Leifer between 15 about 1992 when "The Hour of Lead" was published and 16 last summer? 17 A No. 18 Q What was the subject of the memo last 1 19 summer? 1 20 A It had to do with the findings at the | 21 National Archives. I 22 Q On what subject? 1 23 A National Bureau of Standards. 1 24 Q Do you have a copy of that memo? 1 25 A 1 do. I 46 1 Q You found documents indicating the National 2 Bureau of Standards recommended lead paint? 3 A Yes. 4 Q And those documents indicated that the 5 National Bureau of Standards believed it was the best 6 paint? 7 A Yes. 8 Q Was there any indication in any of those 9 documents other than that that was the National Bureau 10 .ofStandards' expert genuine view when they issued 11 such recommendations? 12 A I really -1 guess I don't quite get what 13 you're getting at. 14 Q Was the National Bureau of Standards telling 15 the world in its recommendations what it, in fact, 16 believed to be true? 17 A It appears that they were telling the world 18 what they believed to be true. 19 Q And you saw no documents indicating anything 20 to the contrary? 21 A I don't think so. 22 Q We -- we'll return after the deposition to 23 the issue ofreviewing some ofyour files. 24 particularly these that you may have found in the 25 Hoover libraries. 48 1 Q You don't happen to have it with you? 2 A I don't happen to have it with me. 3 MR. HARDY: I request a copy, please. 4 Q (BY MR. HARDY) In general5 MR. SCOTT: Just so that we're clear on | | 6 this, the documents you want to request subsequent to 1 7 the deposition I'm going to expect to be put in 8 writing because I'm not going to take the onus of 9 keeping track of all of them, and Leifer may well have 10 objections to the production of that. 11 MR. HARDY: No problem. 12 MR. SCOTT: We may need to involve him 13 in that. 14 MR. HARDY: No problem. 15 THE WITNESS: Can I get a cup of 16 coffee? 17 MR. HARDY: Yeah, me, too. Let's take 18 a three-minute break. 19 THE VIDEOGRAPHER: Offthe record. 20 10:51. 21 (Recess from 10:51 a.m. to 10:57 a.m.) 22 THE VIDEOGRAPHER: On the record. 23 10:57. 24 Q (BY MR. HARDY) You indicated, Mr. Reich, 25 that you sent a memo to Mr. Leifer last summer on your Worldwide Court Reporters, Inc. 1-800-745-1101 12 (Pages 45 to 48) 49 1 finding with respect to the National Bureau of 2 Standards. Do you recall, in general, what that memo 3 told Mr. Leifer? 4 MR. SCOTT: I'm going to instruct you 5 not to answer that. 6 MR. HARDY: Okay. 7 MR. SCOTT: Ifthe Court -- ifthe 8 Court orders it, well give you a copy ofthat 9 MR. HARDY: Fine. 10 Q (BY MR. HARDY) Between -- around 1990, when 11 you were working for Mr. Leifer, and last summer. 12 which could have been the summer of2001, did you work 13 for any other lawyers on cases having anything to do 14 with lead paint or lead pigment? 15 A Well, I'm not sure about that starting 16 date. I'm not sure when I stopped working for 17 Mr. Leifer. 18 Q When do you recall stopping? 19 A I don't recall. I mean, I -- it sort of 20 petered out, I guess. 21 Q Early 1990s? 22 A I don't remember. 23 Q Okay. 24 A From time to time, I would get a phone call 25 from a law firm asking for information and... 51 1 A No. 2 Q Have you served, Mr. Reich, in the capacity 3 of an expert in any litigation other than the work for 4 Mr. Leifer and the work you're now doing for 5 Mr. Scott? 6 A No. 7 Q Don't know, but I'd be right, I guess, in 8 assuming this is the first time you've been deposed as 9 an expert witness? 10 A It is. 11 Q And I'd be right in assuming you've never 12 testified in court as an expert witness? 13 A That's correct. 14 Q When were you first contacted by Mr. Scott 15 or other lawyers at Bracewell & Patterson or Fleming 16 in Houston? 1 17 A I believe it was last spring. 18 Q And I believe you've provided us with a list 19 of your time and expenses on this project. Is this 20 the list? 21 A That is the list. 22 MR. HARDY: Why don't we mark it as J 23 Exhibit 180, please. 24 (Exhibit No. 180 marked.) 25 Q (BY MR. HARDY) Do you recall who first 50 1 Q Did you provide such information to any 2 lawyers? 3 A Sometimes. 4 Q Do you recall the names of any of the 5 lawyers to whom you provided information? 6 A I don't. This was years ago. 7 Q So with the exception of Mr. Leifer and the 8 current work you're doing for Mr. Scott 9 A Yes. 10 Q -- do you recall the names of any other 11 lawyers for whom you've provided information on lead 12 paint? 13 A I did -- I did provide information to the -14 the fellows in New York City, and that was done 15 gratis. 16 Q That would have been lawyers in the 17 corporation counsel office -18 A Yes. 19 Q -- in New York City? 20 Do you recall what you provided 21 Mr. Goldstein or -22 A I think it was -- I had some documents that 23 they didn't have. I don't recall what they weft 24 Q Did you provide anything in terms of|your 25 writings to the lawyers in the city of New Ydfk? 52 1 1 contacted you? 2 A I think it was Mr. Herring. 3 Q Do you recall what he told you he was 4 interested in? 5 A I believe he was interested in lead paint. 6 Q Did he tell you what sort of lawsuits he was 7 involved in? 8 A He did not go into a lot of detail other 9 than it was a plaintiff situation involving a 10 municipality. 11 Q Did you agree to help him? 12 A Well, not right off the bat, but eventually. 13 yes. 14 Q Did you need some more information from him 15 before agreeing? 16 A I wanted a little more, yes. 17 Q What more did you get before you agreed? 18 A A sense of what the -- who the parties were 19 and where, why. 20 Q Whafs your understanding of who the parties 21 are in this case? 22 A My understanding is that it's a school 23 district as plaintiff. 24 Q Uh-huh. Do you have an understanding who 25 the defendants are? `--m Worldwide Court Reporters, Inc. I 1-800-745-1101 13 (Pages 49 to 52) 53 1 A You guys. 2 Q Well, who are the defendants in your -- who 3 do you think these defendants are other than us guys? 4 A National Lead, Sherwin-Williams, Glidden, 5 duPont, and there may be others. .6 Q Did Mr. Herring ask you, once you agreed to 7 work for him, to do anything in particular? 8 A Yes. 9 Q What did he ask you to do? 10 A From time to time, he passed along questions 11 to which I provided responses. 12 Q And I guess I would be right in saying that 13 this collection of e-mails represents, at least in 14 part, those questions and those answers; is that 15 right? 16 A I think it represents in toto. 17 Q Did you send any letters to Mr. Herring or 18 his colleagues? 19 A I -- I sent some packages with reprints, as 20 indicated in the -- in the documents. 21 Q But you don't recall sending them any 22 letters with text from you? 23 A Mostly it was attachments. 24 Q Did Mr. Herring or his colleagues, since 25 they first talked to you in the spring of2001, ask 55 1 Q Did I just hear you say you volunteered to 2 write this summary? 3 A I did. 4 Q And why did you feel a need or interest in 5 writing this summary? 6 A It seemed as if it would be helpful to have 7 a document that demarcated some ofthe areas in which 8 I possessed information. 9 Q And does this document. Exhibit 181, include 10 all ofthe information you've collected on the history 11 oflead paint and lead pigment since you began to look 12 at that issue? 13 A It does not. 14 Q Are there any major areas that are not 15 included in Exhibit 181? 16 A Major areas ofwhat? 17 Q Of -- in which you've collected 18 information. 19 A I guess it would depend on your definition 20 of "major." 21 Q What do you -- how would you describe the 22 scope of what's in Exhibit 181? 23 A I would describe it as a briefhistory of 24 the mining, smelting, and refining industry and a 25 summary ofthe state ofknowledge ofchildhood lead 1 I 54 1 you to write anything? 2 A Well, in particular, Mr. Herring was 3 interested in a time line ofopposition to the 4 prohibition of lead and I prepared a document in 5 those -- in that regard. 6 Q And that's included in this stack? 7 A It is included in that stack. And in -- in 8 anticipation of this event, I offered to prepare a 9 summary ofsome ofthe issues as I saw them. 10 Q Was that offer accepted? 11 A It was. 12 Q Did you write such a summary? 13 A I did, and I --1 think you have it. 14 Q I think I do, too. Let's just make sure. 15 Is this document the summary? 16 A It is. 17 MR. HARDY: Why don't we mark that as 18 the next exhibit, please. 19 (Exhibit No. 181 marked.) 20 Q (BY MR. HARDY) We have marked as Exhibit 21 181a document entitled "BriefHistory ofthe Mining, 22 Smelting, and Refining Industry" with a date of 23 January, 2002. Is this the summary you were just 24 referring to, Mr. Reich? 25 A It is. 56 1 poisoning and an examination of ways in which the lead 2 industry opposed regulation. 3 Q If I said that much ofwhat's in Exhibit 181 4 was also in "Hour ofLead" -- 5 A Yes. 6 Q -- would I be correct? 7 A Yes. 8 Q And have -- to the extent issues, areas. 9 discussed in "Hour ofLead" have led you to find new 10 documents and new information in the last ten years. 11 did you add those into Exhibit 181? 12 A I did. 13 Q So would it be fair to say Exhibit 181 is an 14 updated version of "The Hour of Lead"? 15 A No. 16 Q And why wouldn't that be fair? 17 A "The Hour of Lead" also includes 18 considerably more information on what happened with 19 the Children's Bureau, some information on the zinc 20 pigments; and I think there's one or two other pieces 21 that I -- I chose to leave out ofthis. 22 Q Is there some reason you left the Children's 23 Bureau story out of Exhibit 181? 24 A I'm not sure. I'm just -- I'm just really 25 not sure. It just didn't seem like it was -- I think Worldwide Court Reporters, Inc. 1-800-745-1101 14 (Pages 53 to 56) 57 1 some of --1 think there's a reference to it, but I -- 2 it went on for quite a while, 1 think. 3 Q Let me ask the question a different way. 4 In5 MR SCOTT: Just a second. Peter, can 6 you slip your microphone up a little higher? 7 THE WITNESS: Yes (complying). 8 MR. SCOTT: If you cross your arms 9 there, it kind of-- 10 THE WITNESS: There we go. 11 Q (BY MR. HARDY) In drafting Exhibit 181 12 A Yes. 13 Q -- did you discover any errors in "The Hour 14 of Lead"? 15 A No. 16 Q So you have no corrections to tell me about 17 in "The Hour of Lead" reflecting new or different 18 information you've learned in ten years? 19 A There's two different elements there. 20 Q I'll let you separate them, ifthat -- if 21 you can. If not, I'll ask the question again. 22 A Ask the question again. 23 Q Okay. Is there anything you'd like to 24 correct in "The Hour of Lead"? 25 A No. . 59 1 Q Could you elaborate a little on that point. 2 A I think that Mr. Warren concluded that 3 Society -- "Society" with a capital S -- decided. 4 quote/unquote, that it preferred, I think his wording 5 was, a pure toxin to an adulterated pig -- poison or 6 something to that effect, and 1 thought that was a 7 little facile. 8 Q Why did you think it was facile? 9 A Because I don't think it was that simple. 10 Q What was Mr. Warren failing to notice? 11 A I don't think that Mr. Warren fully 12 appreciated the manner in which paint industries 13 worked to forestall regulation or legislation that 14 might have protected the public. 15 Q Are there particular documents or events 16 having to do with, as you put it, lead industry 17 forestalling regulations ofwhich you're aware that 18 Mr. Warren was not aware? 19 A Well, I -1 don't know what he was aware of 20 or not aware of. I'm just aware ofwhat appeared in 21 his - in his book. 8 22 Q Okay. Well, we'll ask you later about the 23 ones you're aware of, come back to that. 24 There's another book that's been 25 published this year on this area called Old Paint by 58 1 Q Did anyone help you write Exhibit 181? 2 A No. 3 Q Since you wrote "The Hour of Lead," some 4 other people have written books about the same 5 subject. Have you read the book by Christopher 6 Warren? 7 A I have. 8 Q Do you have a reaction to Mr. Warren's book? 9 A Ido. 10 Q What is it? 11 A I guess I'd like you to be more specific. 12 Q Okay. Did you find conclusions reached by 13 Mr. Warren with which you disagree? 14 A 1 did. 15 Q Could you tell us about them, please. 16 A In one area, he seemed to indicate that the 17 American writers would not have known about the Turner 18 and Gibson pieces from Australia, and I was quite 19 astonished at that. 20 In another area, he seemed to waffle on 21 the topic of meningitis versus encephalopathy in a way 22 that was generous to you folks, I thought. 23 I believe he also explained the, 24 quote/unquote, decision to allow a poisonous pigment 25 to remain in circulation in an unsatisfactory manner. 60 1 Peter English. Have you read that book? 2 A I have not. 3 Q Dr. English also provided an affidavit in 4 the litigation on this history. Have you ever read 5 that affidavit? 6 A I have not. 7 MR. SCOTT: I'm going to object to the 8 form of that question as vague when you say "this 9 litigation." 10 Q (BY MR HARDY) I'm sorry. Have you ever 11 read an affidavit by Dr. English on lead paint 12 history? 13 A I have not. 14 Q Have you ever read anything by Dr. English 15 on lead paint history? 16 A I don't believe so. 17 Q Do you know who Dr. Peter English is? 18 A No. 19 Q Okay. Have you ever discussed these history 20 issues with Dr. Warren? 21 A I have not. 22 Q Have you ever read -- I know you have. What 23 have you read on these sorts of issues by Drs. Rosner 24 and Markowitz? 25 A I've -- I've read their publications in the Worldwide Court Reporters, Inc. 1-800-745-1101 15 (Pages 57 to 60) 61 1 American Journal of Public Health. 2 Q That's the "Cater to the Children" article? 3 A Cater to -- they had an earl -- an earlier 4 one as well. 5 Q That's their article on lead in gasoline? 6 A I -1 don't recall. 7 Q Anything else that you -- have you read 8 anything else on this subject by Drs. Rosner and 9 Markowitz? 10 A I don't think so. 11 Q Have you ever read any affidavits on this 12 subject, though? 13 A I have not. 14 Q Have you ever discussed these subjects with 15 Dr. Rosner? 16 A No. 17 Q Have you ever discussed any ofthese 18 subjects with Dr. Markowitz? 19 A Yes. 20 Q When would that have occurred -- when did 21 that occur? 22 A In October of2001. 23 Q Did you call Dr. Markowitz? 24 A I did not. 25 Q Did he call you? 63 1 Q Was it at a lawyer's office? 2 A No, it was not 3 Q Who called this meeting? 4 A I don't know. 5 Q You were at the meeting, Mr. Markowitz 6 Dr. Markowitz -- 7 A Yes. 8 Q -- was at the meeting, some lawyers were at 9 the meeting? 10 A Yes. 11 Q Do you remember the names of any of the 12 lawyers? 13 A Neil Leifer. 14 Q Any others? 15 A I don't recall. 16 Q Where was the meeting, other than in 17 Providence? 18 A Oh, Jack McConnell was there. 19 Q Jack McConnell. 20 Was this in an office in Providence? 21 A No, it wasn't. 22 Q Hotel in Providence? 23 A Yes. 24 Q We've named about five people at the 25 meeting. How many other people were at the meeting? 1 8 | 1 | 1 1 I I 1 62 1 A No. 2 Q How did you happen to discuss these subjects 3 with him? 4 A I met him at a meeting. 5 Q Was that in New York City? 6 A It was not. 7 Q Was he making a presentation at the meeting 8 on lead paint? 9 A He was. 10 Q Did you hear his presentation? 11 A I did. 12 Q That would have been in Atlanta? 13 A No. 14 Q Where was it? 15 A It was in Providence, Rhode Island. 16 Q And you were in attendance? 17 A I was. 18 Q Did you go because you wanted to hear what 19 Mr. Markowitz had to say about lead paint? 20 A Sure. 21 Q Was this a public meeting? 22 A No. 23 Q Was this a meeting with some lawyers? Were 24 there lawyers present? 25 A There were lawyers present. 64 1 A Couple dozen. 2 THE VIDEOGRAPHER: I've got a minute of 3 tape. 4 MR. HARDY: Okay. Stop the tape. 5 THE VIDEOGRAPHER: Off the record. 6 11:18, end ofTape 1. 7 (Recess from 11:18 a.m. to 11:20 a.m.) 8 THE VIDEOGRAPHER: All set. 9 Q (BY MR. HARDY) Mr. Reich 10 A Yes. 11 Q -- who invited you to the meeting in 12 Providence? 13 A Neil Leifer invited me. 14 Q Do you recall whether Mr. Leifer told you 15 what the purpose ofthe meeting was? 16 A It was -- it's -- ifs difficult to answer 17 this because the invitation was presented in an 18 awkward manner, and I never really quite knew. Thai's 19 the truth. 20 Q Do you recall what Mr. Leifer said in an 21 awkward manner? 22 A He said, "There's a meeting in Providence, 23 Rhode Island, that I'd like you to come to." 24 Q He didn't tell you the purpose of the 25 meeting; is that fair? 1 1 Worldwide Court Reporters, Inc. 1-800-745-1101 16 (Pages 61 to 64) 65 1 A It was generally about these cases. 2 Q And by "these cases," what was your 3 understanding of what "these cases" were? 4 A Well, I wasn't quite sure. 5 Q Did you leant at the meeting what "these 6 cases" meant? 7 A I did. 8 Q What did -- what did it mean to the people 9 at the meeting? 10 A I think it meant that there were a number of 11 people involved in a number of cases who were there to 12 discuss it. 13 Q These would have been cases against lead 14 pigment companies like the ones we represent? 15 A Yes. 16 Q You indicated that beyond the five or so 17 people we identified at the meeting, there were maybe 18 a couple of dozen other people? 19 A (Moving head up and down.) 20 Q Do you know who those persons were 21 representing? 22 A The one person whose identity and whose 23 affiliation I'm familiar with is Eileen Quinn from 24 the -- some -- ifs a consumer organization, too. 1 25 forget the name of it. AEC-- 67 1 presentation? 2 Q Yes. 3 A 1 did not make a presentation. 4 Q Did Dr. Markowitz make a presentation? 5 A He did. 6 MR. SCOTT: Can we go off and talk 7 about this a second? 8 MR. HARDY: We sure can. 9 MR. SCOTT: Offthe record. 10 THE V1DEOGRAPHER: Off the record, 11 11:23. 12 (Discussion off the record.) 13 THE VIDEOGRAPHER: On the record, 14 11:23. 15 Q (BY MR. HARDY) As far as you know, 16 Mr. Reich, were any lawyers from the Houston law 17 firms, Mr. Scott's law firm or Fleming or Bracewell & 18 Patterson, at this meeting? 19 A As far as I know, they were not 20 Q As a result ofthis meeting, have you been 21 hired by anybody at the meeting to do anything? 22 A I'd like to ask my attorney how to answer 23 that, if 1 may. Is that allowed? 24 Q Well, I gather -- well, we'll just -- I 25 gather, Mr. Reich, since the meeting you have had 66 1 Q Is she from Boston? 2 A No, from Washington, AECLP. 3 Q Alliance to End -- 4 A Yeah, that's -- 5 Q -- Childhood Lead Poisoning? 6 A -- the one. Yeah, she was there. But I 7 didn't meet and talk with other people there. 8 Q Were there other lawyers there? 9 A Yeah. 10 Q Were there other historians there? 11 A Dr. Markowitz was there. 12 Q Right. And you? 13 A Well, I'm flattered that you call me a 14 historian. 15 Q Well, correct it. Strike that. 16 Generically, were there any other 17 experts on lead -- 18 A I don't know. 19 Q -- there? 20 Did you talk at the meeting? 21 A 1 did. 22 Q Did Mr. Markowitz talk at the meeting? 23 A He did. 24 Q Did the lawyer -- 25 A Did -- did you mean "talk," make a 68 1 conversations with some ofthe people at the meeting? 2 A Yes. 3 MR. SCOTT: That sounds like some kind 4 of a defense meeting there. We'll talk about it more 5 at lunch and we'll see ifwe can -- 6 MR. HARDY: Okay. 7 MR. SCOTT: Maybe we can work out some 8 understanding where you can go deeper into that. 9 MR. SMITH: Can I ask just one question 10 in connection with that? Were you compensated for 11 your attendance at this meeting? 12 THE WITNESS: I -1 really don't know 13 how to answer that. 14 Q (BY MR. HARDY) Your expenses were paid? 15 A No. 16 MR. SMITH: Did you prepare a bill for 17 your time at that meeting? 18 THE WITNESS: I sure wish I could ask 19 Mr. Scott. 20 MR. HARDY: We'll deal with it - we'll 21 come back to it after lunch, why don't we. 22 MR. SCOTT: Okay. That sounds good. 23 Q (BY MR. HARDY) Back to the Texas lawyers. 24 A Yes. 25 Q Have they sent you any information on the Worldwide Court Reporters, Inc. 1-800-745-1101 17 (Pages 65 to 68) 69 1 Spring Branch School District? 2 A Yes. 3 Q What have they sent you? 4 A 1 received a -- wait a second. The -- the 5 call for this deposition. 6 Q The -- the notice ofthe deposition? 7 A Yes. 8 Q Have they sent you any substantive .9 information on the school district? 10 A No. 11 Q Do you know how many buildings are in the 12 school district? 13 A No. 14 Q How many schools? 15 A No. 16 Q How old the schools are? 17 A No. I mean, I have a -- I think it's 50 18 years, but I'm not -- I'm really not sure. 19 Q When you -- 20 A I think in a conversation, Mr. Scott 21 mentioned it, but I --1 don't recollect. 22 Q So23 A I haven't seen a document that -24 Q So you -- you don't know how many schools in 25 the school district were constructed pre World War II? 71 1 that you use the term to refer to paint in which there 2 is lead pigment where the lead content is greater than 3 .06 percent? 4 A I -- I'd like you to restate that, if you 5 wouldn't mind. 6 Q Gladly. Let's try it this way: When we -- 7 when you use the term "lead-based paint," if the lead 8 in the paint is due to what's called a lead dryer, do 9 you consider that lead-based paint? 10 A I guess I'm not sure how to answer that. | 11 Q Do you know what lead dryers are, Mr. Reich? I 12 A No. 13 Q If a paint has .5 percent lead -- 14 A .5 or .05? | 1 15 Q 0.5 percent, halfpercent lead. 16 A Yes. 17 Q - and that lead is in the paint from some 18 chemical other than a lead pigment, I gather you would 19 not consider that lead-based paint the way you use the 20 term? 21 A As I recall, the -- the problem that the 22 American Academy of Pediatrics had with the 1955 ANSI 23 standard was that the -- it was 1 percent lead in the 24 solids, but there was a loophole that actually allowed 25 up to 3 percent in other media. So -- and that was a 70 1 A That's right. 2 Q Or in the 1950s? 3 A (Moving head up and down.) 4 Q Do you know anything about whether or not 5 there's lead-based paint in those schools? 6 A Well, I don't think we'd be here if there 7 wasn't. 8 Q Do you know in how many ofthose schools 9 there's lead-based paint? 10 A I don't. 11 Q Do you know where in those schools there's 12 lead-based paint? 13 A I don't. 14 Q Let me -- let me do a detour here. I'm 15 using the term "lead-based paint." What does that 16 mean to you? 17 A To me, it means paint in which a substantial 18 portion of the pigment is lead. 19 Q Do you have an understanding when you use 20 the term of what substantial portion of the pigment 21 would mean? 22 A Well, I'm assuming it would be in excess of 23 .06 percent. 24 Q So when you use the term lead-base paint -25 "lead-based paint," am I right that you're telling me 72 I 1 problem back in 1964. So I would say that in excess B 2 of .5 percent in anything would be a danger. 3 Q Are you aware, Mr. Reich, that the Federal 4 government, through EPA and Department ofHousing and 5 Urban Development, have definitions ofwhat they today 6 consider a lead-based paint? 7 A No. 8 Q So you don't know what their definitions are 9 of lead-based paints? 10 A Not after 1978. 11 Q And in referring to 1978,1 gather you're 12 referring to the Consumer Product Safety rule of that 13 year? 14 A Well, I'm referring to the lead point -- the 15 lead -- the -- the Federal act -- Federal legislation 16 which was given to the Consumer Product Safety 17 Commission. 18 Q And I gather from the questions that I was 19 asking before, to the extent there is lead-based paint 20 in Spring Branch buildings, in schools, you don't know 21 where that paint is? 22 A I do not know where that paint is. 23 Q Do you believe -- strike that. 24 Has anyone ever told you, Mr. Reich, 25 that any lead-based paint in any Spring Branch schools ----- S3B Worldwide Court Reporters, Inc. 1-800-745-1101 18 (Pages 69 to 72) 73 1 poses a hazard to children in those schools? 2 A No. 3 Q Do you have any reason to believe any 4 lead-based paint in any of those schools poses a 5 hazard to children? 6 A I do. 7 Q And what's your basis for that belief? 8 A The basis for that belief is more than a 9 hundred years of medical research which indicates that 10 when children are near lead pigment, mineral pigment. 11 the outcomes are not good. 12 Q You used the term "near," Mr. Reich. 13 A (Moving head up and down.) 14 Q Can you cite me to any medical literature 15 suggesting that being near lead-based paint poses a 16 hazard? 17 A I think the Queensland porches are a good 18 example of that. They're environments to which kids 19 were allowed access; and sure enough, they got 20 poisoned. And maybe I have to use the word 21 "exposed." Perhaps that's a better term. 22 Q What is your understanding ofthe route by 23 which lead entered the bodies of children in 24 Queensland? 25 A The most -- it was oral. 75 1 Q Are you aware of any evidence ofany 2 children in any school building that they're ingesting 3 or inhaling lead at school? 4 A Yes. 5 Q And what evidence would you point me to on 6 that subject? 7 A I did a search in the National Newspaper 8 file, which is published by Dialogue Information 9 Services, and I found a number ofschool systems which 10 were reporting lead dust and lead -- lead exposures 11 around the nation. I believe that several years ago, 12 1 think 78 percent of California schools had 13 potentially dangerous lead paints in them. 14 Q Are the documents that you found in your 15 Dialogue search included in 16 A There are none. 17 Q Are they included in the -- 18 A No, they're online. 19 Q Okay. The - are they included in your 10 20 to 12 feet of-21 A No, they're not They're -- 1 figure why 22 waste a tree ifit's right there. 23 Q Okay. What articles do you recall seeing 24 about lead paint in schools? You mentioned 25 California I 1 74 1 Q And what went into the children's mouth? 2 A Dried paint that had been washed by water. 3 Q Was it dust? 4 A In some cases, it was dust. 5 Q And what was it in other cases? 6 A In other cases, as -- as poignantly 7 recollected, I think it was by Nye, many of the 8 1,000-plus children who died of kidney failure would 9 go outside in rainstorms and hold their mouths open 10 underneath the -- the rain and drink the sweet water 11 that was going into their mouths. 12 Q Do you know whether there's any lead dust in 13 Spring Branch schools? 14 A I don't. 15 Q Do you know whether there's any water in 16 Spring Branch schools that contains lead from paint? 17 A I don't. 18 Q So you don't really know, do you, Dr. Reich, 19 whether there's -20 A Mister. I'm not a doctor. 21 Q Mr. Reich. You're right. 22 You don't really know, Mr. Reich, 23 whether there's any exposure to lead of children 24 currently occurring in Spring Branch schools? 25 A I don't. 76 1 A I mentioned California 2 Q Do you remember what it was in California? 3 A I beg your pardon? 4 Q Do you remember what sort of document in 5 California? 6 A This -- these were newspaper articles. 7 Q Okay. Anything you recall other than 8 California? i | 1 9 A I think in 1987, 50,000 school desks were 10 recalled in Texas. I don't recall, but I remember 11 getting a number of what they like to call "hits." 12 Q And these were articles which you found by 13 look -- by hits, searching for lead paint in schools? 14 Is that how you found them? 15 A Well, it was a little more complicated than 16 that, but.. 17 Q Do you remember your search strategy? 18 A I think it was: lead, question mark, open 19 parentheses, 3 N, close parentheses, paint, question 20 mark, open parentheses, 3 N, closed parentheses. 21 school, question mark. 22 Q Did any ofthe articles you found in that 23 search indicate that there had ever been a child in 24 the United States who had an elevated blood level 25 which was determined to be due to exposure to lead in Worldwide Court Reporters, Inc. 1-800-745-1101 19 (Pages 73 to 76) 77 1 a school? 2 A 1 don't remember. 3 Q Beyond the search, are you aware of any such 4 evidence anywhere? 5 A Evidence ofa child with an elevated blood 6 level as a result ofexposure in a school? 7 Q That's correct. 8 A I can't recall. 9 Q Are you aware of any government regulations 10 of lead paint in schools? 11 A No. 12 Q Do you have any understanding of the 13 relationship between the Consumer Product Safety 14 Commission 1978 Act, which we referred to a few 15 minutes ago, and schools? 16 A No. 17 Q I gather, Mr. Reich, that you have reviewed 18 a number of historic doc -- historical documents with 19 respect to lead-based paint? 20 A Yes. 21 Q In your research, have you discovered any 22 person, prior to 1978, who recommended that lead-based 23 paint not be used in schools? 24 A Henry Gardner, in 1914,1 believe -- it 25 might have been 1917 -- warned explicitly about the 79 1 many people came back with concerns about using lead 2 paints on interiors at that time. 3 Q Did any ofthose people recommend against 4 using lead-based paint in schools prior to 1978? 5 A I believe that there were -- the -- the -- 6 the alarms were about interiors, not explicitly about 7 schools. 8 Q Did any of those people recommend against 9 using lead-based paint in interiors prior to 1978? 10 A I think, but I'd have to verify it, that 11 some ofthe advocates for zinc pigments explicitly 12 suggested that there -- zinc would -- zinc pigments 13 would be a preferable alternative. 14 Q And by advocates ofzinc pigments, are there 15 particular names in mind? 16 A Well, there was a book from 1898,1 can't 17 think of the author right now, but... 18 Q Goodey? 19 A I'm sorry? 20 Q Would that have been Goodey's book? 21 A I don't -- I don't remember. 22 Q Let's restrict the persons I'm asking 23 about. Can you think of any public health officials 24 who, prior to 1978, recommended against using 25 lead-based paint in schools? | 1 1 I 1 1 j j \ 1 j 1 ! j j 8 1 I j j 1 78 1 danger oflead dust from what he called as "the 2 inmates ofpublic buildings." 3 Q And who was Mr. Gardner? 4 A Mr. Gardner was a scientist, worked for the 5 Paint Manufacturers Association and later went to 6 Washington to head up the education section ofthe -- 7 I believe it was the Paint Manufacturers Association. 8 Not exactly sure. 9 Q Other than Mr. Gardner, are you of any -10 aware of anyone prior to 1978 who recommended 11 lead-based paint not be used in schools? 12 A Can 1 think for a sec? 13 Q You certainly can. 14 A I believe that the substantial literature 15 that really began in the Nineteenth Century in Europe 16 opposing leaded paints for interiors was interpreted 17 by certain Americans to be that type of a warning. 18 Q Who would have interpreted? Who -- who are 19 you referring to by "certain Americans"? 20 A Particularly Alice Hamilton, possibly C.D. 21 Holley ofthe Acme White Lead Works who warned about 22 the poisonous nature oflead paint in 1909. But it 23 does appear that -- that a number ofAmericans -- I 24 don't know how many altogether -- attended the Milan 25 conference in 1906 and I think -- it does appear that 80 1 A No. 2 Q Any doctors who made such recommendations? 3 A No. 4 Q Are you aware of any public health authority 5 or doctor who ever referenced Mr. Gardner's -- or 6 Dr. Gardner's 1914 statement? 7 A No. 8 Q Are you aware of any medical literature that 9 ever referenced that 1914 speech? 10 A No. Not sure it was a speech, but... 11 Q That Gardner paper -- 12 A And it might have been 1917. I'm not sure. 13 Q I believe it was published twice, same 14 thing, word for word. 15 A Okay. 16 Q But that Gardner statement, do you recall 17 what kind of paint he was referring to? 18 A I do think it was in a presentation to 19 painters and I think he was trying to reassure 20 painters that -- that it -- that they were not at 21 risk. 22 Q Do you recall him referring to lead flatted 23 with turpentine? 24 A I think so, yes. 25 Q And do you recall that was his concern? 1 1 1 I Worldwide Court Reporters, Inc. 1-800-745-1101 20 (Pages 77 to 80) 81 1 A Yeah, he -- the -- there was a strong 2 sentiment that turpentine was the problem. 3 Q And are you aware that shortly after 1914, 4 paint technology developed oils other than turpentine 5 to flat lead paint? 6 A Well, having used white lead myselfas a boy 7 in 1950, we sure didn't know about it up in Maine. We 8 used turpentine. So it wasn't widespread. 9 Q When you -- why don't you tell me a little 10 about your experience in 1950. 11 A Okay. 12 Q What were you painting? 13 A What were we painting? I don't even 14 remember. 15 Q Do you recall how you -- what kind of paint 16 you used? 17 A I recall being flabbergasted that 1 couldn't 18 lift the bucket. 19 Q Do you know what was in the bucket? 20 A White lead. Andl-21 Q Do you -22 A Go ahead. 23 Q Do you recall the company whose white lead 24 it was? 25 A I think it was Dutch Boy, but 1 don't know 83 1 Q Under the linseed oil? 2 A (Moving head up and down.) 3 Q And that's what you mixed? 4 A (Moving head up and down.) 5 Q Was someone teaching you how to do all this? 6 A It was -- there was. 7 Q Who was that? 8 A An old Maine guy. 9 Q Who had been painting all his life? 10 A Yes, he'd been -- he was a woodsman and a 11 lumbeijack and a handyman. 12 Q Do you recall why he was going through this 13 process which you felt was so laborious? 14 A In retrospect, I see it as a -- a time-old 15 ritual that characterized painters in the painting 16 trade. 17 Q Do you recall at all being told by this 18 woodsman what he thought of white lead paint? 19 A I don't. 20 Q Were you aware or do you remember being 21 aware then that there was also available at that time 22 in 1950 ready-mix paint that you didn't have to mix? 23 A No. 24 Q Mr. Reich, would you agree that the Spring 25 Branch School District, like other school districts, 8 82 1 for sure. 2 Q So you had this heavy can ofwhite lead. Do 3 you recall what you did with it? 4 A Spent a long time mixing it. 5 Q And what did you mix it with? 6 A Two flat boards and you rubbed it together 7 and you rubbed and rubbed and raised it up and paddled 8 it. 9 Q Did you pour something into the can? 10 A Not in this case. 11 Q You opened the can of white lead, as you 12 recall it, and paddled and paddled and paddled? 13 A (Moving head up and down.) 14 Q And then you applied it? 15 A Well, there -- sometimes we'd use turpentine 16 to thin it. 17 Q Do you recall using linseed oil? 18 A Yes. 19 Q What was the role of linseed oil? 20 A Well, that was the oil that we - we were 21 mixing the white lead into the linseed oil. 22 Q The white lead in the bucket, do you recall 23 what form it was when you first opened the bucket? 24 A There was a few inches of linseed oil and 25 then this heavy white stuff. 84 1 is generally responsible for maintaining its 2 buildings? 3 A Yes. 4 Q And the school (sic) branch school district, 5 like other school districts, is responsible for the 6 safety of its buildings with respect to its students 7 and employees? 8 A Yes. 9 Q And do you have any reason to believe that 10 the Spring Branch School District has not, over the 11 years, responsibly maintained its buildings and 12 created safe conditions? 13 A Say -- say it one more time. 14 Q Bad--I'll be glad to. Are you aware of 15 any evidence other than that Spring Branch school 16 district has responsibly maintained its buildings in 17 the past? 18 A I still don't quite get it. I'm sorry. 19 Q Do you know whether Spring Branch has 20 responsibly maintained its buildings in the past? 21 A I don't know whether they've responsibly 22 maintained. 23 Q Are you aware of any information that they 24 have not? 25 A No. `---SBB Worldwide Court Reporters, Inc. 1-800-745-1101 21 (Pages 81 to 84) 85 1 Q Do you know whether the Spring Branch 2 schools have maintained safe conditions over the 3 years? 4 A I don't know. 5 Q Are you aware of any information that they 6 have not? 7 A lam not. 8 Q Do you know, Mr. Reich, whether the Spring 9 Branch School District is currently aware of where 10 there's lead paint in its building? 11 A 1 don't know. 12 Q Do you know whether the Spring Branch School 13 District has taken any precautions with respect to the 14 presence oflead paint in any of its buildings? 15 A I don't know. 16 Q Have you read any ofthe expert reports 17 submitted by any ofthe other experts by the Spring 18 Branch School District in this case? 19 A I have not. 20 Q So you haven't read Mr. Burckle's cost 21 estimate for removing all the lead paint in the 22 school? 23 A I have not. 24 Q Do you have an opinion on whether all the 25 lead paint in the schools should be removed? 87 1 to children? 2 A I think so. 3 Q What do you recall in that regard? 4 A I -- on that particular regard, the 5 continuing issues around Chelsea -- there's a bridge 6 over here in Chelsea. 7 Q And what's your understanding ofthe nature 8 ofthat concern with the Chelsea bridge? 9 A My recollection is that eveiy time they 10 start to repaint the bridge and clean offthe old 11 paint, that there are problems in the children living 12 nearby. 13 Q Do you have any knowledge, Mr. Reich, about 14 the extent to which in repainting -- strike that. 15 Do you have any knowledge of the extent 16 to which in a school building there's a need either to 17 repaint or clean offsteel beams? 18 A No. 19 Q I asked you before, Mr. Reich, about whether 20 you know ofanyone who had recommended not using 21 lead-based paint in schools. Are you of anyone over 22 the years who has recommended using lead-based paint 23 in schools? 24 A Yes. 25 Q Who? | | 1 | I | | 1 1 86 1 A I do not. 2 Q You're not an expert on lead paint risk 3 assessment. Am I right about that? 4 A lam not. 5 Q 1 guess one of the things 1 didn't ask you, 6 do you have any expertise, Mr. Reich, in exposure 7 assessments? 8 A No. 9 Q Do you have any understanding, how -10 Mr. Reich, from your review ofthe historical medical 11 literature, as to the ages ofchildren about whom the 12 public health authorities are concerned with respect 13 to ingestion of lead paint? 14 A No. 15 Q Do you have any understanding from your 16 reading ofthe historical literature on lead paint. 17 the medical literature, on what sort of surfaces in a 18 building the risk is greatest? 19 A Based on my readings, 1 believe that the 20 windowsill, window frames, door frames, school desks, 21 walls, ceilings, exteriors, toys are potentially 22 dangerous. 23 Q Are you aware ofany reports from your 24 reading ofthe medical literature indicating that 25 steel beams on which there's lead paint pose a hazard 88 1 A National Bureau of Standards. 2 Q When did they do that? 3 A It was the Minneapolis School District, I 4 believe, and I don't know -- it was in the Twenties or 5 Thirties, late Twenties, Thirties. 6 Q Do you remember the context in which such a 7 recommendation was made? 8 A I believe the Minneapolis school board wrote 9 to the Bureau of Standards asking for guidance. 10 Q And the National Bureau of Standards 11 replied? 12 A They replied. 13 Q And they recommended using lead-based paint? 14 A Yes. 15 Q Do you recall why they recommended 16 lead-based paint? 17 A Ifs -- I do. Because in the same letter. 18 they -- as an afterthought, lithopone was recommended. 19 but they said really, white lead is better. 20 Q Did you get an understanding from that 21 letter or other National Bureau of Standards documents 22 why they thought white lead was better? 23 A If11 --it just held up better. 24 Q Does that mean more durable? 25 A Everything. I mean, it -- I j Worldwide Court Reporters, Inc. 1-800-745-1101 22 (Pages 85 to 88) 89 1 Q The National Bureau of Standards thought it 2 was good paint? 3 A Yes. 4 Q Durable paint? 5 A Yes. 6 Q Stood up well? 7 A That's what they thought. 8 Q Did they believe it was washable? Was that 9 one ofthe parts ofdurability? 10 A Well, that was one of the selling points 11 certainly for hospitals. 12 Q Do you know whether the National Bureau of 13 Standards agreed with that selling point? 14 A 1 believe they did. 15 Q Do you have any evidence from any ofyour 16 research, Mr. Reich, to indicate that the National 17 Bureau ofStandards recommendation to use lead paint 18 in schools was anything other than their expert 19 genuine opinion? 20 A No. 21 Q Do you know whether the National Bureau of 22 Standards continued to recommend lead paint for school 23 use after the 1920s? 24 A The National Bureau of Standards, to the 25 best of my recollection, recommended white lead for 91 1 I think that because many ofthem were very familiar 2 with the occupational issues around lead pigments and 3 appreciated that any man exposed to lead would sooner 4 or later be poisoned. 5 Q And -- and it appears to you that the 6 National Bureau ofStandards was aware ofthose 7 concerns for painters? 8 A I think they were aware ofthose concerns 9 for miners, painters, battery workers, and I think 10 they were aware ofnonindustrial exposures as well. 11 Q What made -- leads you believe that the 12 National Bureau of Standards was aware of 13 nonoccupadonal cases? 14 A There is some -- there is that -- there's a 15 correspondence from 1917, and I believe it's the 16 National Bureau ofStandards, from the 17 Sherwin-Williams Company about nonpoisonous paints on 18 war helmets. 19 Q Can you think of any other indications that 20 the National Bureau ofStandards was aware of 21 nonoccupational cases? 22 A The -- I believe that the reports published 23 by Metropolitan Life Insurance Company and Prudential 24 Life Insurance Company were fairly well-publicized. 25 Q And therefore, you believe they would have 1 90 1 interiors up until 1945, at least. 2 Q Do you have any reason to believe that that 3 recommendation, up until 1985 -- 4 A Forty -5 Q '45 was other than their expert genuine 6 views? 7 A . What else would it be? I guess I'm 8 confused. 9 Q Was the National Bureau of Standards telling 10 the truth about what they believed was best? 11 A 1 really don't know. 12 Q You have no indication other than that they 13 were telling the truth; is that right? 14 A My instructions were to tell the truth. The 15 truth is, there -- it's puzzling to me why they did 16 and it remains -- so I'm not totally easy with 17 answering straight yes. 18 Q From your research on the National Bureau of 19 Standards, Mr. Reich, did you determine that the 20 persons in the National Bureau of Standards who were 21 making these recommendations were aware of the 22 toxicity of lead? 23 A I think they were. 24 Q Why do you think that? 25 A I think -- let's see. Why do I think that. 92 1 been known to the paint persons at the National Bureau 2 of Standards? 3 A Yes. 4 Q Would the National Bureau of Standards 5 persons have been aware ofthe activities of the 6 International Labor Organization in the 1920s on lead 7 paint? 8 A I think so. B I 1 9 Q Have you looked at all at recommendations 10 with respect to lead paint, Mr. Reich, made by the 11 United States Department of Agriculture? 12 A Yes. 13 Q Isn't it true that that part of the U.S. 14 government also recommended white lead paint? 15 A Yes. 16 Q And do you recall what part of the 17 Department ofAgriculture made such recommendations? 18 A I think it was the Federal Security Agency 19 and it was -- the particular publication was 20 coauthored by the Lead Industries Association and the 21 Department ofAgriculture, 1943. 22 Q Are you aware ofany recommendations from 23 the Department of Agriculture's Forest Products 24 library in Madison, Wisconsin? 25 A I'm not. World1wide Court Reporters, Inc. 1-800-745-1101 23 (Pages 89 to 92) 93 1 Q So you've never looked at those documents? 2 A Which documents? 3 Q Documents from the Forest Products library. 4 A I have not. 5 Q Does the name Dr. Browne, with an "e" on the 6 end, mean anything to you? 7 A It does not. 8 Q What -- what do you recall -- okay. I'm 9 sorry. 10 Are you aware, Mr. Reich, ofthe use of 11 white lead paint by the Public Works Administration of 12 the Federal government in the 1930s? 13 A Yes. 14 Q What do you know about that? 15 A I know two things about it, I guess. One is 16 that when 1 went to visit Dr. Julian Chisolm, he was 17 very, very upset that white lead was a requirement to 18 get Section 8 housing hinds from the government, or 19 that's what -- that was his phraseology to me. 20 And then when 1 was at the National 21 Archives, I did find some guidelines for architects 22 which specified two coats ofwhite lead for public 23 housing projects. 24 Q Let's take the second part first. The 25 specifications that you found at the archives, do you 95 1 MR. SCOTT: Object to the form of the 2 question. 3 You can answer. 4 THE WITNESS: Should I answer? 5 MR. SCOTT: Other than -- ifyou can. 6 Q (BY MR. HARDY) Ifyou can. 7 MR. SCOTT: Yeah. 8 A I believe that the -- I believe that I've 9 seen documents which support the idea that when 10 federally subsidized housing came in, that it was seen 11 as a -- as a tremendous opportunity for profit in the 12 paint industry. 13 Q (BY MR. HARDY) But have you seen any 1 14 documents indicating that the Federal government was 15 recommending white lead for any reason other than its I 16 belief that that was the best paint to be used? 17 A I think so. 18 Q What documents support that belief? 19 A 1 think the best documents are those from 20 the medical literature which warn that children near 1 21 woodwork, toys, and furniture that are painted with j 22 lead paints tend to get sick. 23 Q Those articles, am I right, were all in the 24 publicly available medical literature? 25 A Yes. 94 1 remember the dates? 2 A They were undated. 3 Q Do you have an understanding of when it was 4 that the Federal government was specifying white lead 5 for housing projects? 6 A Well, I believe this particular document was 7 in 1934 or 1935. 8 Q With respect to mister -- Dr. Chisolm, when 9 was it you visited him? 10 A 1987,1 believe. 11 Q And could you tell me, again, what it was 12 Dr. Chisolm was unhappy about in 1987? 13 A Well, one ofthe -- one of the vivid 14 memories of that -- ofthat visit was that it was 15 his -- his rage that white lead had been a -- required 16 for public housing. 17 Q Was it your understanding he was referring 18 in 1987 to prior requirements? 19 A Yes. 20 Q Do you have any evidence, Mr. Reich, 21 suggesting that when the Federal government required 22 white lead paint for housing projects in the 1930s, 23 those requirements represented anything other than the 24 Federal government's genuine expert opinion on what 25 sort of paint should be used? 96 1 Q And those articles, am I right to say, were 2 known to public health experts in the U.S. 3 government? 4 A Maybe not. 1 5 Q The articles were in generally available 6 medical literature; is that right? 7 A Not all of them. 8 Q Which ones weren't? 9 A Well, for example, the review published by 10 Dr. Kehoe in 1943 omitted many of these articles from 11 the bibliography that it was -- that it published. 12 Q If I were a public health official in the 13 Federal government in the 1930s, would I have any 14 trouble finding the articles you refer -- you just 15 referred to on lead paint and woodwork? 16 A I don't know. You might. 17 Q Weren't those articles in some of the 18 leading medical journals, like the American Journal of 19 Diseases of Children? 20 A Uh-huh. 21 Q And the Journal of the American Medical 22 Association? 23 A Some of them were. 24 Q So if I were a public health official in the 25 Federal government in the 1930s, I would not need to mma Worldwide Court Reporters, Inc. 1-800-745-1101 24 (Pages 93 to 96) 97 1 rely on some bibliography ofsome doctor in Cincinnati 2 to find those articles, would I? 3 A If that doctor, starting in 1927, reassured 4 the American public that there is no threat to the 5 public from lead, you might not go to those papers. 6 Q Do you have any reason to believe that any 7 ofthe public health experts in the government were 8 prevented in any way from knowing what was in the 9 available medical literature? 10 A No. 11 Q Do you have any reason to believe that the 12 National Lead Company knew anything about the toxicity 13 of lead that was unknown in the 1930s to the public 14 health officials? 15 . A Say that again. 16 Q The public health officials were quite able 17 to know what was known about lead in children and 18 paint by reading the medical literature, correct? 19 A 1 don't -- I'm not comfortable with that. 20 Having been a public health official for 13 years, I 21 take word from the state agency. I don't, as a public 22 health official, necessarily go and look up every 23 single medical article. I think that -- that I was 24 disagreeing with you a little bit there. 25 Q Let's try this. Dr. McKhann -- 99 1 say that again. 2 Q Are you aware of any study done by National 3 Lead Company -- 4 A Uh-huh. 5 Q -- having to do with lead toxicity that was 6 not published? 7 A Warren does cite a 1958 study on the 8 toxicity of lead in toys that wasn't published. 9 Q And who sponsored that study? 10 A I believe it was the Kettering Institute. 1 11 Q Are you aware of any other study of lead 12 toxicity spon -- are you aware -- let's go back. 13 Are you aware of any study sponsored by 14 the National Lead Company on lead toxicity that was 15 not published? 16 A I believe that some of those -- some of the 17 findings around the Bayway incident were not 18 published. 19 Q What do you mean by "the Bayway incident"? I 20 A When the -- when the -- the people were -- 1 21 were killed around the tetraethyl lead. | 22 Q Did the National Lead Company have anything I 23 to do with that? 24 A I don't know. 25 Q Are you aware of any study sponsored by the 98 1 A Uh-huh. 2 Q -- wrote a series of articles in the 3 1930s4 A Uh-huh. 5 Q -- in well-known joum -- medical journals 6 about lead and paint and children; is that right? 7 A Uh-huh. He did. 8 Q And Dr. McKhann's articles were in many, 9 many libraries available to be read by anybody who 10 wanted to read them? 11 A They were available in medical libraries. 12 Q Was there any information that you're aware 13 are of about lead and paint and children -- 14 A Yes. 15 Q -- known to the National Lead Company that 16 was not publicly available in libraries? 17 A I think so. 18 Q What do you think the National Lead Company 19 knew that wasn't out there in the libraries for 20 everybody to read? 21 A About -- 22 Q Lead and children. 23 A -- lead in general or lead and children? 24 Q Let's do lead and children first. 25 A I'm sorry. I'm going to have to ask you to 100 1 Lead Industries Association of lead toxicity that were 2 not published? 3 A Some of the work that Aub did and that 4 wasn't published, and that was on behalf of the Lead 5 Industries Association. 6 Q What leads you to believe that Aub was doing 7 work for the Lead Industries Association? 8 A The voluminous communication with Felix 9 Wormser. 10 Q Does any of that communication indicate that 11 Kehoe was doing work for the Lead Industries 12 Association? 13 A Well, either Kehoe or Aub? Are we talking 14 about Kehoe or -- 15 Q Kehoe. 16 A Kehoe. Does any of that correspondence 17 indicate -- 18 Q You indicated to me that you believe some of 19 the Kehoe work was -- 20 A No, no, no. Some of the--some -- yes, 21 some ofthe Kehoe work -- I'm not even sure it was 22 Kehoe. It was Kettering. 23 Q Yes. And I'm asking you whether you - on 24 what you base your belief that Kettering/Kehoe studies 25 were funded by the Lead Industries Association. Do Worldwide Court Reporters, Inc. 1-800-745-1101 25 (Pages 97 to 100) 101 1 you have an -- 2 MR. SCOTT: I don't mean to interrupt. 3 1 think y'all are --1 think he answered Aub and -4 MR. HARDY: 1 think he5 THE WITNESS: Okay. Start over. 6 MR. SCOTT: Maybe you ought to start 7 over. 8 A Start over. 9 Q (BY MR. HARDY) I have asked you whether the 10 National Lead Company or the Lead Industry 11 Association -- 12 A Uh-huh. 13 Q -- to your knowledge -14 A Yeah. 15 Q --funded any studies of lead toxicity that 16 were not published? 17 A My -- when -- when Alice Hamilton did that 18 work for the -- I believe it was the National Lead 19 Company, they may have done studies that weren't 20 published. She did a -- she -- she was doing -- 21 working quite closely there around 1910, and there may 22 very well have been something that wasn't published. 23 Q You're not aware of it? 24 A I'm not aware of it. 25 Q And you're not aware of any work sponsored 103 l 1 Q Certainly doctors and public health offices 2 have access to a medical library? 3 A Yes. 4 MR. HARDY: Should we break for lunch? 5 Is it a good time? 6 MR. SCOTT: Yeah. 7 THE VIDEOGRAPHER: Off the record, 8 12:28. 9 (Recess from 12:28 pun. to 1:10 p.m.) 10 THE VIDEOGRAPHER: On the record, 1:10. 11 Q (BY MR. HARDY) Mr. Reich, you published, in 12 1973, according to your CV, an autobiographical memoir 13 entitled A Book of Dreams? 14 A Yes. 15 Q By any chance, did that volume discuss your 16 experiences in Maine painting? 17 A No. 18 Q What was the nature ofthat book, what was 19 it about? 20 A It was about growing up with my dad, who was 21 a controversial psychoanalyst. 22 Q And you wrote that shortly after you 23 graduated from college, 1 gather? 24 A No. It was -- I wrote it seven years after, 25 eight years. | 1 1 I | 1 | 102 1 by the Lead Industries Association on lead toxicity 2 that wasn't published? 3 A I'm not aware of any. 4 Q And would the same thing be true with 5 respect to Sherwin-Williams' research on lead 6 toxicity? 7 A I'm not aware of any. 8 Q And would you -- are you also not aware of 9 any lead toxicity research sponsored by duPont that 10 was not published? 11 A I think I have something about duPont but 12 I'm not sure, so I'll say I don't. 13 Q How about Glidden? 14 A No. 15 Q Which means you're not aware of any toxicity 16 studies done by the companies that provided the 17 companies with any information on lead toxicity that 18 was not disclosed to the public? 19 A I guess I'm not aware of any. 20 Q At the same time, the medical literature 21 discussions of lead and paint and paint and children 22 were available for any person to read and evaluate and 23 make recommendations; isn't that right? 24 A I don't think any person really has access 25 to a medical library. 104 1 Q I asked you this morning whether you had 2 read several books having to do with lead and lead 3 paint -- lead pigment history. There's also an 4 article that's been' published on that subject by a 5 Mr. Rabin, R-a-b-i-n. 6 A Yes. 7 Q Have you ever read Mr. Rabin's article? 8 A I believe I have. 9 Q Have you ever talked to Mr. Rabin about 10 these areas of inquiry? 11 A I think we had a conversation many years 12 ago. 13 Q Do you remember anything about the nature of 14 that conversation? 15 A No. 16 Q Have you been in touch with Mr. Rabin in the 17 . last five years? 18 A No. 19 Q When you did the work in the late Eighties 20 and late Nineties for Mr. Leifer, do you recall about 21 how much money you received for that work? 22 A I don't. 23 Q Do you recall whether it was more than 24 $10,000? 25 A It was not more than $ 10,000. 1 Worldwide Court Reporters, Inc. 1-800-745-1101 26 (Pages 101 to 104) 105 1 Q In that era, you also received money, 1 2 believe, from the Environmental Defense Fund? 3 A Right. 4 Q Do you recall how much money you received 5 from EDF? 6 A I think it was less than $5,000. 7 Q Between that period and when you started 8 working for Mr. Scott and his colleagues, did you 9 receive any money from anyone to do research on lead 10 paint and lead pigment, lead history? 11 A There was a -- there was one incident where 12 someone was interested in battery workers, but I -- it 13 was several years ago, and I have no recollection. 14 Q You don't remember who it was -15 A I don't. 16 Q -- that asked you? 17 A Huh-uh. 18 Q But you did some sort of project on battery 19 workers? 20 A Uh-huh. 21 Q We discussed this morning a meeting you 22 attended with Dr. Markowitz? 23 A Yes. 24 Q And did you indicate, you may have, when 25 that meeting occurred? 107 1 really nervous about doing it because I don't really 2 want to stop you, but I'm afraid this may involve 3 something where we're stepping into another lawsuit 4 involving other lawyers, and obviously we're not going 5 to do discovery for their case. So I think we'd best 6 stay away from this. But I understand ifthe Court 7 orders us to come back to it, well certainly bring 8 Mr. Reich back and allow you to ask the questions. 9 So with great reluctance, I think we've 10 probably done enough about this. We talked about it 11 at lunch, and it sounded to me, from what he said. 12 like some kind ofajoint defense meeting. Beyond 13 that, I don't know. I'm going to talk to Mr. Leifer 14 about it, but I'm uncomfortable about going into this 15 meeting in any more detail. 16 A And I -- I was not paid for my attendance at 17 this meeting. 18 MR. SMITH: Can we just establish a 19 foundation that will allow us to take this to the 20 Court while we're here today? 21 MR. SCOTT: Yeah, and I think you 22 should. I'm not sure how far -- how far we're getting 23 afield ofjust pure foundation. And I was watching, 24 trying to be pretty conservative, but I only chimed in 25 on this because I do think we need a foundation for 1 I | 106 1 A October 22nd. 2 Q 19-of 2001? 3 A Yes. 4 Q If you can, can you tell me what was your 5 understanding of the purpose of that meeting? 6 A I can honestly say that it was never made 7 clear to me. 8 Q How long was the meeting? 9 A Two days. 10 Q Two full days? 11 A I -- well, I was only there for the first 12 day. So I don't know how long the second day went. 13 Q And the day you were there, the first day, 14 was it a full eight-hour day? 15 A I -- pretty much. I don't know. I guess 16 I'll -- I don't remember what time it started or what 17 time it ended. 18 Q And I gather Mr. Markowitz made a 19 presentation? 20 A He did. 21 Q Did anyone else make a presentation? 22 A Yes. 23 Q Who else was -- 24 MR. SCOTT: I'm going to -- I'm going 25 to stop it now, the inquiry about that. And I'm 108 1 it. 2 MR. HARDY: Do you have some questions. 3 Scott? Go ahead, if that's okay with Ron. 4 MR. SMITH: May I intervene and just 5 ask some foundational questions about this meeting? 6 MR. SCOTT: Sure, sure. Absolutely, 7 as long as they are foundational. 8 MR. SMITH: I will do that. Thanks. 9 And I'll be very careful to stay away from the 10 substance of the meeting, which I gather is your 11 concern, Counsel, right? 12 MR. SCOTT: I guess it's my -- my 13 concern is that we may be taking a deposition for 14 Mr. Letter's lawsuit -- that's my concern -- but I 15 don't know. 16 EXAMINATION 17 BY MR. SMITH (1:16): 18 Q Mr. Reich, regarding this meeting on October 19 22nd of 2001, at that time, had you been retained by 20 any law firm or lawyer for the purpose ofgiving 21 testimony in a case other than the Spring Branch case 22 in Mr. Scott's firm? 23 A I think I can answer that and say no. 24 Q The time that you spent at the October 22 25 meeting, were your travel expenses compensated for 1 Worldwide Court Reporters, Inc. 1-800-745-1101 27 (Pages 105 to 108) 109 1 that? 2 A I don't-well, not at the time. I went 3 down there without any compensation. When I -- I had 4 not received anything from any ofthose people when I 5 attended that meeting. 6 Q Okay. And you had no commitment prior to 7 attending that meeting that you'd be compensated 8 either for your time or your expenses related to that 9 meeting; is that fair? .10 A I think there was a suggestion that some 11 sort ofcompensation might be forthcoming in the 12 future. 13 Q But that agreement had not been made at the 14 time that you attended that meeting? 15 A That's right 16 Q And the individual that suggested that there 17 might be compensation in the future, who was that, 18 please? 19 A Jack McConnell. 20 Q At the time ofthat meeting, you had not 21 been retained by Mr. McConnell or his law firm in any 22 matter; is that correct? 23 A Yes. 24 Q "Yes," that is correct? 25 A I have to look at dates, but I think that 111 I 1 Mr. McConnell's law firm has retained you? 2 A Yes. | 1 3 EXAMINATION 4 BY MR. SULLIVAN (1:20): 5 Q Besides Ms. Quinn, do -- and any of the 6 attorneys who were there, did you meet the other 7 people? 8 A Well, not really. I shook a couple of hands 9 and said hello. I didn't even know who they were 10 except for one ofthose people who works with 11 McConnell's firm. 12 Q Were any legislators present? 13 A I have no idea. 14 Q Nobody was introduced as a legislator or a 15 legislative aide? 16 A I really don't -- I don't think so, but I'm 17 not a hundred percent sure. 18 Q Was there anybody from the Attorney I 19 General's office from Rhode Island? | 20 A Possibly. I 21 Q Do you know if there were any other - | 22 anybody present from groups that are involved in I 23 childhood lead poisoning? 1 24 A Well, Eileen Quinn. 1 25 Q Besides Eileen Quinn? 110 1 the time when I was officially, quote, retained was 2 after that meeting. I'm fairly certain of that. 3 Q And I think you mentioned there was someone 4 there from the Alliance to End Childhood Lead 5 Poisoning? 6 A Uh-huh. 7 Q Who was that person, please? 8 A Eileen Quinn. 9 Q Do you know if Ms. Quinn is an attorney? 10 A I don't believe she is. 11 Q Were there any other people there that you 12 understood to be neither experts nor attorneys 13 associated with these cases? 14 A Were there other people who were not lawyers 15 and nonexperts? 16 Q Correct. 17 A I don't know. 18 Q All right. 19 MR. SMITH: I think that covers it, and 20 I thank you for allowing me to ask those questions. 21 EXAMINATION 22 BY MR. HARDY (1:19): 23 Q Just one more clarifying question to follow 24 up on Mr. Smith. I gather from your answer a minute 25 ago, Mr. Reich, that since that meeting. 112 1 A I see. I don't know. 2 Q Were there any media reporters there? 3 A I don't believe so. 4 Q Nobody from television or radio or 5 newspaper? 6 A Not -- not on the face of it. 7 Q Any journalists that you are aware of? 8 A Not that I'm aware of. 9 Q Besides yourselfand Dr. Markowitz, were 10 there any people who purport to be historians on the 11 lead industry or the lead paint history or lead 12 poisoning history? I 13 A I think there was one fellow who seemed to 1 14 be leaning in that direction. 1 don't know what his 1 15 name was. 16 Q Do you remember where he was from? 17 A I don't. 18 Q And it was a man versus a woman? 19 A It was a man. 20 Q Can you -- do you remember the states from 21 which any ofthe attorneys were -- 22 A I don't. 23 Q To your knowledge, were the attorneys from 24 more than the Ness Motley firm which Mr. McConnell is 25 associated with -- Worldwide Court Reporters, Inc. 1-800-745-1101 28 (Pages 109 to 112) 113 1 A Uh-huh. 2 Q -- or Mr. Leifer or his firm? 3 A Were there people above and beyond --1 4 think so. 5 Q And nobody from the Texas firm? 6 A That's correct 7 Q Any ofthe Texas firms? 8 A (Moving head up and down.) 9 Q Anybody from Mississippi? 10 A I don't know. 11 Q Anybody from Wisconsin? 12 A 1 didn't -- you'd think 1 didn't pay much 13 attention, but I really don't know. 14 Q And besides Dr. Markowitz, did any - were 15 all the rest ofthe presenters lawyers? 16 A No. 17 Q Were you told whether this was in connection 18 with active litigation or proposal litigation? 19 A I think it was about propose - proposed or 20 ongoing. 21 Q Did they talk about potential lawsuits in 22 other states? 23 A I don't -- 24 MR. SCOTT: Let's -- don't answer 25 that. L 115 1 and expenses that you have submitted to Bracewell & 2 Patterson? 3 A Yes. 4 Q And I just wanted to ask you about a couple 5 of the references here. 6 A Sure. 7 Q First of all, do 1 understand correctly from 8 this that your billing rate is $75 an hour? 9 A Well, it started out that way until 1 got 10 laughed out ofthe room by my colleagues. 11 Q And it's now more than that? 12 A Yeah. 13 Q What is it now? 14 A Well, it's --1 may be laughed out of this 15 room, too, right? $100 an hour for library work and 16 250 for stuff like this. 17 Q Depositions? 18 A Yes. 19 Q There's a reference here on March 25 to 20 "retrieving and e-mailing isotope refs"? 21 A Yes. 22 Q What's that refer to? 23 A Ifs right there. It's people who were 24 doing work on isotopic research. 25 Q Lead isotopes? 1 1 1 1 1 1 I 8 1 114 1 That's a little afield of foundation. 2 I understand your interest in that, but I think -3 MR. SMITH: One more foundational 4 question. 5 THE WITNESS: Okay. 6 EXAMINATION 7 BY MR. SMITH (1:22): 8 Q The presenters -9 A Yes. 10 Q -- who were not lawyers -11 A Yes. 12 Q -- other than Dr. Markowitz, what subjects 13 did they present on? 14 MR. SCOTT: Don't answer that. I'll 15 tell you what let's do. At the break - next break, 16 I'll try to call Leifer and see what the deal is -- 17 MR. SMITH: Okay. Great. 18 MR. SCOTT: -- call them and see what 19 they say. Ifthey don't have any objection, then that 20 will eliminate our problem. 21 MR. SMITH: Okay. That's fine. Thanks 22 for doing that. 23 EXAMINATION 24 BY MR. HARDY (Continued 1:23): 25 Q Mr. Reich, Exhibit 180 was your list of time 1 A Yes. I116 1 2 Q That's the subject you were asked by the 1 3 lawyers to look into? 4 A Yes. 5 Q A little farther down on April 4th, it says 6 "ILL," in all caps, "Article (white lead).'' 7 A Interlibrary loan. I 8 Q A ways down further, there's another | 9 interlibrary loan book, Sabin's? 10 A Yes. 1 1 11 Q What book's that? 12 A I believe it's the book on red lead that he 13 published. 14 Q By Dr. Sabin? 15 A Yes. 16 Q Am I right that in these memos which you've 17 given me, there's an indication that you did some 18 research on red lead? 19 A Well, some bibliographic research. 20 Q Okay. Had you ever looked into the issue of 21 red lead prior to 2001? 22 A I had some references to it. I hadn't 23 sharply focused on it. 24 Q Do I gather that in the last year, you have 25 sharply focused on red lead? Worldwide Court Reporters, Inc. 1-800-745-1101 29 (Pages 113 to 116) 117 1 A Yes. 2 Q Why is that? 3 A Why? 4 Q Uh-huh. 5 A Mr. Scott asked me to. 6 Q Do you know why he asked you? 7 A I assumed he had good reason. 8 Q Do you know anything about red lead and the 9 Spring Branch School District? 10 A l don't. 11 Q What did you find out in your collection of 12 information on red lead? 13 A What did I find out. I found out that it 14 was usually lumped together with white lead as -- and 15 lead chromate as dangerous. 16 Q And when you say "usually lumped together as 17 dangerous," in what sort of publications did you find 18 this dangerousness of these lead compounds 19 referenced? 20 A 1 found it in works dealing with food 21 adulteration and cosmetics and paint. 22 Q These works on food adulteration and 23 cosmetics were written in what eras? 24 A Some of them were written hundreds of years 25 ago. 119 1 Q Alice Hamilton's writings, as published by 1 2 Department of Labor, would have gone to libraries that | 3 got government documents, would they not? 4 A They would have gone to U.S. government 5 depositories. 6 Q Which are? 7 A Specially designated libraries who receive 8 government documents. 9 Q Which libraries are in a number of different I I 10 cities in this country? 11 A That's right. j I 12 Q And would be available libraries, then, for 13 public health officials in those cities? 14 A Sure. 15 Q Are you aware, Mr. Reich, that Alice i | 1 j 16 Hamilton's writings were often cited and quoted in the I 17 magazine of the Brotherhood of Painters? I 18 A No. I 19 Q Have you ever reviewed the Brotherhood of | 20 Painters monthly magazine called at various times 21 things like "Painter and Decorator"? 22 A No. 1 i I 23 Q So you're not aware of the extent to which 1 24 Alice Hamilton's writings and concerns about lead 25 paint toxicity were included in these painter 118 1 Q And were these works generally available in 2 libraries? 3 A Probably not. 4 Q Where would they have been found? 5 A In rare book collections or specialized 6 libraries. 7 Q Would these books on lead in food have been 8 generally available to public health officials in the 9 Nineteenth Century? 10 A Yes. 11 Q You indicated you had also discovered red 12 lead discussed in books on the toxicity of paint. 13 A Yes. 14 Q In what era would that have been the case? 15 A Early Twentieth Century. 16 Q Do you remember any particular books in that 17 regard? 18 A Alice -- some of Alice Hamilton's work. 19 Q Which was published, among other places, by 20 the U.S. Department of Labor; is that right? 21 A That's right. 22 Q And Alice Hamilton's writings, would they 23 have not been generally available to public health 24 officials? 25 A I'm not so sure. 120 1 publications? 2 A That's correct. 3 Q Have you done any research on knowledge of 4 painter unions in the United States of the toxicity of 5 lead? 6 A A little bit. 7 Q And what have you found? 8 A Some unions felt that a ban on -- or limits 9 on lead paints were a bad idea, and some thought they 10 were a good idea. There were two conflicting views, I 11 believe, presented to the ILO. 12 Q Would it be fair to say that painter union 13 group -- painter groups on both sides of that issue 14 were, nonetheless, aware ofthe toxicity of lead 15 paint? 16 A Not having read those journals, I don't know 17 what they would have been aware of. 18 Q Is it your understanding that the painter 19 unions who supported the ILO recommendation on 20 interior use of lead paint were aware of the toxic 21 qualifies of lead paint? 22 A I'm sorry. Start from the beginning again, 23 the... 24 Q Is it your understanding that the painter 25 groups -- Worldwide Court Reporters, Inc. 1-800-745-1101 30 (Pages 117 to 120) 121 1 A Yes. 2 Q -- who supported the ILO recommendation 3 against interior use of lead paint were aware ofthe 4 toxicity of lead in paint? 5 A I think the unions that supported the ILO 6 propositions were aware ofthe toxicity. 7 Q And whafs your understanding ofthe 8 populations, types ofpersons, those unions were 9 concerned about protecting in advocating a ban on the 10 interior use of lead paint? 11 A I think they were interested in protecting 12 their painters, and I'd like to think that they were 13 also interested in protecting what our friend Henry 14 Gardner referred to as "the inmates ofthe 15 buildings." 16 Q Have you seen any indication that any of 17 those painter union concerns went beyond protecting 18 the health of painters? 19 A I don't think so. 20 MR. HARDY: Let's cut the tape, then. 21 THEVIDEOGRAPHER: Off the record, 22 1:33, ending Tape 2. 23 (Recess from 1:33 p.m. to 1:35 p.m.) 24 THE VIDEOGRAPHER: On the record, 1:35, 25 beginning Tape 3. 123 1 Q And is that memo in the collection which you 2 gave me? 3 A I believe it is. 4 Q There is also a reference to "Ladd 5 Dissertation Research." 6 A Yes. 7 Q What's that have to do with? 8 A I was interested in the work ofDr. Ladd at 9 the Agricultural Experiment Station in North Dakota 10 and his interest in the paint labeling legislation. 11 Q Did you send one of your assistants to the 12 archives ofthe University ofNorth Dakota? 13 A I did not. 14 Q But I gather you received some information 1 1 1 1 15 from the University ofNorth Dakota? | 16 A I did. 17 Q And you received a dissertation? 18 A I did. 19 Q Anything else? 20 A No. 21 Q And I believe you've given us -- Ron's given 22 us parts ofthat dissertation. 23 A Well, my extract of it, I think. 24 Q Right. 25 The next page, there's a reference to 122 1 Q (BY MR. HARDY) Mr. Reich, am I right that 2 the International Labor Organization recommended that 3 nations not allow the use of lead paint at a defined 4 level for interior paint? 5 A I guess I'm not sure about the "defined 6 level" part, because I think in some places it was 7 absolute and in some places it was less than 8 absolute. 9 Q And I gather you are familiar with and 10 summarized in some ofthe material you've given us 11 some information from a big book called White Lead 12 that was issued after that recommendation was made by 13 the International Labor Organization? 14 A Yes. 15 Q Are you aware ofany indication that the 16 International Labor Organization recommendation was 17 prompted by a concern to protect any groups other than 18 painters? 19 A I guess not. 20 Q Going back to your time and expenses list. 21 there are -- there is a reference in May of last year 22 to a Hamilton memo. 23 A M-h'm. 24 Q Is that a reference to Alice Hamilton? 25 A It is. 124 1 "Hamilton, Red Lead." 2 A I think 1 looked specifically at Alice -3 Alice's references to red lead. 4 Q And that would have been in some of the 5 reports she did for the Department of Labor? 6 A Yes, and possibly some other materials. 7 Q Did you look for any information on red lead 8 other than as you've described already, articles 9 having to do with the toxicity of red lead? 10 A Yes. 11 Q What did you find? 12 A Some old Greek thing about the Temple of 13 Ephesus, I think, a lot of interesting -- reference to 14 rouge, ways in which it was -- made its way into 15 society. 16 Q I was about to ask. So whafs your 17 understanding of what red lead was used for? 18 A Well, it was a remarkably beautiful red. I 19 think it was used for decorating women's cheeks and 20 churches, and it was a fabulous protector of metal. 21 Q Is that to protect metal against corrosion? 22 A Corrosion and rust. 23 Q And do you have an understanding of when it 24 was in the history of paint technology that red lead 25 was used to protect against corrosion? Worldwide Court Reporters, Inc. ! 1-800-745-1101 31 (Pages 121 to 124) 125 1 A 1 think navies used it for a long time. I 2 don't know when they started to use it 3 Q Do you have any understanding of to what 4 extent there were other nonlead materials that could 5 be used to protect metal against corrosion? 6 A My best recollection is that there wasn't 7 much else. 8 Q Would that have been true -- continue to 9 have been true, say, in the 1950s? 10 A Well, 1 think -- I think the incidence with 11 the United States Navy in the second decade ofthe 12 Twentieth Century prompted a -- at least 1 think they 13 switched from red lead as a primer at that time 14 because there was so much poisoning among sailors. 15 Q But the Navy continued to use red lead as a 16 topcoat? Was that your understanding? 17 A That, I'm not sure. 18 Q Do you know * have you looked into the 19 availability of substitutes for red -- for red lead in 20 building construction -- 21 A I haven't. 22 Q -- in, say, the 1930s or the 1940s or the 23 1950s? 24 A Well, the impression I had was that lead 25 paints were just the greatest thing since sliced 127 | 1 Q Did that have anything to do with lead 2 paint? j 8 3 A Well, to the extent that it had to do a 4 little bit with protecting miners and to the extent 5 that it put a political cast on advocacy for miners' j 6 interests, I was interested in that. [ 7 Q There are three references in June to "Memo ! 8 on Regulation." | 9 A M-h'm. 10 Q What's that about? 11 A Well, since -- since working for the 12 Environmental Defense Fund, I've been interested in 13 documenting, as much as I could, times, places, and 14 events in which interests associated with lead have 15 tried to defer regulation. 16 Q Did you actually draft a memo on that 17 subject last June? 18 A If that's what it says, that's what -- 19 that's what I did. 20 Q And that would be a different document from 21 Exhibit 181, which I believe covers -- j 22 A Yes. 23 Q -- that subject, also? 24 A M-h'm. M-h'm -- well, yeah. j 25 Q Do you know whether there are things in your j 126 1 bread. 2 Q All through that period? 3 A Yeah. 4 Q And that's an impression from reading things 5 like Mattiello and other literature from paint 6 companies 7 A Well, yeah. 8 Q - or paint chemists; is that right? 9 A Yeah, and the United States Government 10 reports. It looked as if -- when I put it in 1965, it 11 looked as if it had really been -- because that's when 12 they were -- I think they said it was -- white lead 13 was mostly out ofuse. So there was an acknowledgment 14 by 1965 that things had pretty much changed over. 15 Q And that's in Federal government documents 16 you're talking about? 17 A M-h'm. 18 Q Going back to your Exhibit 180, time sheets. 19 there's a reference on July 3rd to "Big Trouble." 20 A Yes. 21 Q I'm curious what that is. 22 A "Big Trouble" is the history ofthe 23 incidents associated with the assassination of 24 Governor Steunenberg, the governor ofIdaho, after he 25 had stepped down in 1905. 128 1 1 memo from June that aren't included in Exhibit 181? | 2 A 1 think there are. j 3 Q We'll get back to that. \ 4 There's a reference to a book from 5 Hammond's -- with a "d" in it -- Antique. What's 6 that? 7 A I don't know. Ifs a book. I mean, I 8 ordered a number of books from a number of antiquarian 9 book dealers. 10 Q You don't remember what that one is? 11 A I don't. 12 Q There's a reference to "The Rise of HH." 13 A Oh, yeah. That has -- this was Herbert 14 Hoover. 15 Q It's a book? 16 A Ifs a book. 17 Q There's a reference to "HCH: An American 18 Tragedy." What's that? 19 A Thafs another book about Herbert Hoover. 20 Q There's a reference to "NYPL Rebecca Neel." 21 Is that one ofyour assistants -- 22 A Yes. 23 Q -- who went to New York Public Library? | 24 There's a reference to "Dinner with 25 Watkins." 1 j Worldwide Court Reporters, Inc. 1-800-745-1101 32 (Pages 125 to 128) 129 1 A Yes. 2 Q Who's Watkins? 3 A Watkins is my research assistant. 4 Q There's a reference to "Copy Affidavit and 5 NRA Documents." What's NRA? 6 A National Recovery Administration. 7 Q Do you recall what was in those documents 8 that caused you to copy them? 9 A What was the date again? 10 Q Recently. This month. 11 A Oh, yeah. Okay. That was a document from 12 the National Recovery Administration from our friend 13 Ernest Trigg concerning the statutory definition in 14 13 states -- or representing that the statutory 15 definition of paint in 13 states was white lead. 16 Q Do you remember the date of that document? 17 A 1934. 18 Q Do you recall why Mr. Trigg was sending that 19 information to the NRA? 20 A I believe he was trying to position white 21 lead as not being subject to the same regulations as 22 mixed paints. 23 Q And that's because Mr. Trigg was the 24 president of the National Paint, Varnish and Lacquer 25 Association? 131 , 1 sides. 2 Q When you refer to "negotiating," do I read 3 you to say that there were different interests 4 between - different interests held by the mixed paint 5 industry and the lead industry? 6 A It appears that the white lead people did 7 not want to be subject to the same provisions that the 8 mixed paint people were held to. 9 Q What sort of provisions? 10 A Well, I'm not exactly sure and I'm a little 11 uneasy going much further because I haven't looked 12 into it that much, but it's -- this particular 13 communication was a way of setting the white lead 14 apart from any other coverings. 15 Q Are you aware of, have you ever looked at 16 communications indicating that the National Paint, 17 Varnish and Lacquer Association was unhappy with the 18 white lead promotion program ofthe Lead Industries 19 Association? 20 A No. 21 Q I gather, Mr. Reich, you and your assistants 22 have collected some documents from the Harvard -- I 23 guess it's Countway Library. 24 A Right 25 Q And am I right that some ofthose documents 1 | 1 1 I 1 130 1 A At the time he wasn't, I don't think. He 2 was -- he was the chairman ofthe Paint Recovery 3 Board, 1 believe. 4 Q But you don't think he was the president of 5 NPVLA in 1933? 6 A You know, I'm not sure that he was president 7 at the same time that he was chairman. I don't know 8 the exact date. I know he was president for a long 9 time. 10 Q And is it your understanding that NPVLA 11 promoted the interests of mixed paint companies? 12 A It looks to me as ifthere was an uneasy 13 marriage during the Depression. 14 Q An uneasy marriage between whom and whom? 15 A Between the mixed -- between the mixed paint 16 and white lead. 17 Q And whafs your understanding ofwhat you 18 characterize as an "uneasy marriage"? 19 A I think Mr. Trigg's mission was to help the 20 entire paint industry through the Depression, and that 21 involved negotiating between the lead interests and 22 the mixed paint interests. And I don't understand 23 fully what was happening then, but it looks as ifhe 24 was treading between the two and trying to work out 25 arrangements that would be satisfactory to both 132 1 have to do with research funded at Harvard, in the 2 1920s originally, funded by various companies in the 3 lead business and ultimately the Lead Industries 4 Association? 5 A Yes. 6 Q And am I right that you've also reviewed the 7 oral history given by Dr. Aub who was, I guess, in 8 charge of that program of research at Harvard in the 9 1920s? 10 A Yes. 11 Q And then I gather you're aware of comments 12 made by Dr. Aub and others at Harvard that this 13 research was funded with, quote, no strings attached? 14 A Yes. 15 Q And is it your understanding from your 16 review that, in fact, this research money was given 17 with no strings attached? 18 A I have no idea. 19 Q Do you have any evidence indicating that the 20 research funds had any strings attached to them? 21 A No. 22 Q Are you aware -- back up. Strike that. 23 In his oral history, Dr. Aub said -- 24 and I think you provided me with a transcript of 25 it -- among other things, he said, "Harvard had Worldwide Court Reporters, Inc. 1-800-745-1101 33 (Pages 129 to 132) 133 1 complete authority to investigate and publish its 2 findings without submitting it to a" -- "to the 3 industry for approval." 4 A That sounds like no strings, doesn't it? 5 Q Do you have any evidence to suggest that 6 that statement by Dr. Aub is inaccurate? 7 A No. 8 Q 1 believe in some ofthe other portions of 9 Dr. Aub's oral history or writings, he indicates that 10 Harvard was, as he puts it, "free to investigate 11 whatever it thought was most worth investigating about 12 lead." Are you aware ofthat statement by Dr. Aub? 13 A Sort of. 14 Q Do you have any reason to believe that that 15 statement, whether it be from Dr. Aub or somebody 16 else, is inaccurate? 17 A No. 18 Q And is it your understanding that all of the 19 research conducted at Harvard with grants from lead 20 companies or the Lead Industries Association was 21 published? 22 A I have no idea to know. I don't think 23 anybody could know that, really. 24 Q Are you aware ofany studies they did -- 25 A That weren't published? 135 1 when it applied to children. 2 And the second thing is that a number 3 of investigators at Johns Hopkins University seemed 4 particularly interested in examining and questioning 5 Dr. Aub's work. 6 Q When you refer to "harmless" -7 A I'm sony, to... 8 Q When you refer to the term "harmless," first 9 of all, what's your understanding of how Dr. Aub used 10 that term in his writings? 11 A I think Dr. Aub, who was a physiologist, was 12 really impressed at the human body. And his writing 13 does convey exuberance of a real scientist at 14 elucidating how the human body will excrete the lead 15 that is not absorbed and store the remaining lead in 16 the bones where it is harmless and Harriet Hardy 17 referred to this as the "Teacup Theory." And 1 think 18 that's -- that was the view that many people, indeed, 19 held and espoused. 20 Q Did Dr. Aub also recognize in his writings 21 that the lead stored in bones over time would come 22 back out into the other -- into the blood system and 23 other tissues of the body? 24 A I'm not sure. I sensed some concern on the 25 part ofcommentators that -- that, in fact, he hadn't 1 | 1 | 1 | I 8 i 134 1 Q -- that weren't published? 2 A lam not. 3 Q Okay. And it's true, is it not, that at 4 least through the Twenties and early Thirties, a large 5 number of studies were published by the Harvard 6 researchers? 7 A Yes. 8 Q And they also published a book on lead? 9 A (Moving head up and down.) 10 Q From your reading of the medical literature. 11 am 1 right in understanding that that book by Dr. Aub 12 and his colleagues, including Alice Hamilton, was 13 considered in the Twenties and through the 1930s as 14 the authoritative, state-of-the-art publication on 15 lead toxicity? 16 A I'm not so sure that that's entirely true. 17 Q Do you have reason to doubt that that's the 18 way it was considered in the Twenties and Thirties? 19 A 1 do. 20 Q And what are your doubts based on? 21 A My doubts are based on two approaches. One 22 is that a number of researchers picked up on Dr. Aub's 23 use of the word "harmless" and raised that in their 24 own papers in a way that raised questions about the 25 advisability of using that particular term, especially 136 1 addressed the fact that some people carrying lead 2 stores in their bones could be time bombs with 3 unpredictable releases of lead that could cause a 4 problem. 5 Q So you don't recall him discussing the lead 6 coming back out of the bone and posing a risk when it 7 comes out of the bone? 1 8 A I don't. 9 Q Are you aware ofany scientific research 10 since Dr. Aub that indicates that lead causes any 11 injurious effects when it is still in the bones? 12 A No, I'm not. 13 Q You referred to Johns Hopkins professors who 14 I think you said may have questioned some of Dr. Aub's 15 findings. Tell me about that, please. 16 A Well, there were a couple ofpapers in 1936 17 and 1937 by S.S. Blackman who -- whose studies of 18 brain lesions seemed to suggest that, indeed, harm was 19 occurring in the brain rather than elsewhere. 20 Q Weren't there articles -- medical articles 21 on lead toxicity predating Dr. Aub, by many decades. 22 even, talking about ill effects of lead on the brain 23 at high exposure levels? 24 A There were many articles prior to Aub 25 talking about dangers to the brain at any level. E Worldwide Court Reporters, Inc. 1-800-745-1101 34 (Pages 133 to 136) 137 1 Q And did Dr. Aub in any way say those 2 articles were wrong? 3 A I don't think he said they were wrong. I 4 think he shifted the focus of attention to the lining 5 of the brain rather than the brain. 6 Q And is that the issue which Dr. Blackman 7 questioned? 8 A I think that's part of the issue. Asl 9 recall, Blackman also was one to demonstrate that 10 there were anatomically definable lesions. 11 Q In the brain? 12 A Yes. 13 Q Due to lead? 14 A Yes. 15 Q These differences of view with Dr. Aub in 16 the medical literature which you've referred to, 17 Harriet Hardy, Dr. Blackman, are these characteristic 18 of the way doctors and scientists communicate and 19 enhance understanding? 20 A I think so. 21 Q And am I right in believing that you have no 22 basis and found no evidence to indicate that any 23 company in the lead business or the paint business had 24 any influence over these disagreements in the medical 25 literature? 8 139 1 whether that's true or not? 2 A I have not read the transcripts of that 3 conference. 4 Q Are you aware of any information suggesting 5 that anyone, the government, some academic 6 institution, was precluded during that period, that 7 four-year period, from doing research on lead? 8 A Well, a couple of things come to mind. One 9 is that when I spoke with Dr. Chisolm, he made it 10 sound like there was some contention over some of the 1 11 work that had originally been sponsored by the lead | 12 industry at Hopkins which didn't turn out to be quite 1 13 unsatisfactory. I really can't recall the nature of 1 14 it except that the sponsors of the research were not | 15 happy with the findings. 1 16 And second, I do point to the -- how 1 17 long did it last? It must have been over almost ten 1 18 years of disagreement between the Children's Bureau 1 19 and represent -- and the lead industry and paint 1 20 industry people over desires to warn the public about 1 21 paints. 1 22 Q Let me go back to my question -23 A Okay. 1 | 24 Q -- then maybe we'll follow up on those two. 8 25 And my question was: Are you aware of 1 138 1 A Please restate that. 2 Q Did -- as I understand it from you, over 3 time there was discussion in the medical literature of 4 exactly what lead did in the body. 5 A (Moving head up and down.) Yes. 6 Q Do you have any reason to believe or any 7 evidence to demonstrate that any paint or lead 8 company -- 9 A Yes. 10 Q -- interfered in any way with those medical 11 debates? 12 A Yes. 13 Q And what evidence would you point to? 14 A According to the article by Graebner -- and 15 this is a secondary source. I have not yet explored 16 it, but it's something I will explore. 17 According to Graebner, at the 1965 18 conference sponsored by the American Public Health 19 Service, a Harvard researcher raised the question that 20 most of the work for the last -- let's see, 40 years, 21 almost all the work on lead and human health, had 22 been, in fact, sponsored by the lead industry. And as 23 I read Graebner, it sounds like there was an 24 acknowledgment that that was, in fact, the case. 25 Q But you today have not checked to see 140 1 any evidence that would suggest that any government 2 health agency 3 A M-h'm. 4 Q -- or any academic institution -- 5 A M-h'm. 6 Q -- or anybody else in the period from 1920 7 to 1965 was in any way prevented by industry from 8 doing research on lead toxicity? 9 A Only to the extent that Robert Kehoe in his 10 position at the American Public Health Association 11 assured the public repeatedly there was no threat. In 12 other words, why do any research ifthere's no 13 problem? That's a roundabout way of answering it. 14 Q But nobody prevented anybody from doing 15 research? 16 A Not that I'm aware of. 17 Q Nor are you aware, are you, of any 18 publication of any results of lead research that 19 industry prevented in that period from 1920 to 1965? 20 A Well, there was this whole thing with Caffey 21 and the X rays and I don't quite understand what 22 happened, but it does look at ifthere was quite a 23 to-do made by Felix Wormser to discourage those people 24 from pursuing the X-ray diagnosis, but... 25 Q That -- that fuss by Felix Wormser -- Worldwide Court Reporters, Inc. 1-800-745-1101 35 (Pages 137 to 140) 141 1 A Yes. 2 Q -- you're referring to -3 A M-h'm4 Q -- some of his reports in 1944,1945? 5 A 1 think that Caffey and Vogt, I think they 6 were late Thirties. I don't remember the exact year. 7 But I think there was -- he was pretty upset about 8 that X-ray stuff, but I don't know if he actually 9 prevented somebody from doing further research. 10 Q You don't have any indication that he 11 prevented Caffey or Vogt from publishing anything, do 12 you? 13 A That's correct. 14 Q Actually, do you have any information or 15 evidence indicating that Felix Wormser or the Lead 16 Industries Association, for whom he worked, anytime 17 from its formation in 1928 up to 1965 prevented 18 anybody from publishing anything about lead toxicity? 19 A I guess not. 20 Q In your review ofdocuments again at Harvard 21 in the Countway Library -- or maybe you also looked in 22 the library at Radcliffe -- I gather you looked at 23 some of the Alice Hamilton papers. 24 A (Moving head up and down.) 25 Q And did -- I gather one ofthe -- some of 143 1 Q Are you familiar with the report that 2 Williams -- Baltimore Health Department did in the 3 late 1940s, sometimes referred to as the "Watts 4 report"? 5 A I'm not sure. 6 Q Have you reviewed at all the role of the 7 Lead Industries Association in assisting the Baltimore 8 Health Department in the late Forties to investigate 9 lead paint poisoning? 10 A I think Chisolm did mention that, but I 11 can't recall. 12 Q Do you recall reading about those efforts in 13 Christopher Warren's book? 14 A Not directly. 15 Q In the same context or a couple years later, 16 are you aware ofwho it was who first suggested that 17 the American Standards Association, now called ANSI, 18 established a standard for lead in paint? 19 A I think the LIA likes to take credit for 20 that. 21 Q Do you believe that LIA deserved credit for 22 that? 23 A No. 24 Q And why not? 25 A What I -- you asked about my methodology. 1 I I I 1 1 I 1 1 | 142 1 the Alice Hamilton papers you found discussed her 2 visits to white lead manufacturing plants owned by 3 National Lead; is that right? 4 A Yes. 5 Q And then I gather you're familiar with some 6 of the complimentary things Alice Hamilton said in 7 those papers and in her memoirs about the National 8 Lead Company and its efforts to prevent lead poisoning 9 in its manufacturing plants? 10 A Yes. 11 Q Do you have any reason to doubt from your 12 research that Alice Hamilton was expressing anything 13 other than her honestly held views about the National 14 Lead Company in those quotations? 15 A I do not. 16 Q You mentioned a couple minutes ago the 17 research that Julian Chisolm did. Is that the work he 18 did in the 1950s in Baltimore? 19 A I actually think he was referring to some of 20 the work that Huntington Williams had done. I don't 21 think it was actually -- 1 think he was a resident at 22 the time. I don't think it was Chisolm himself. 23 Q Do you recall what sort of Huntington and 24 Williams project Chisolm was talking about? 25 A I don't exactly. 144 1 Q Yes. I'd be glad to hear about it. 2 A Well, what I tried to do was not, as I said. 3 take references and go backwards, but to find sources 4 and move forward. 5 Q M-h'm. i 6 A And in that context, when I -- when I found 1 7 out about the ANSI standard, 1 was flabbergasted 8 because it had followed ten years of total harassment E 9 of the Children's Bureau of a bona fide effort to warn 1 10 the public about the dangers of lead paint. The 1 11 harassment of these women doctors defies the 12 imagination. 13 Furthermore, in 1953, the United States 14 Government -- the American pediatricians set up the 15 Poison Control Center. It sure looks to me like the 16 LIA leadership in formulating this standard was a nice 17 exit strategy. 18 Q Let's talk about the Children's Bureau. 19 A Sure. 20 Q And you refer to harassment -- 21 A M-h'm. 22 Q -- of the Children's Bureau. What1s your 23 basis for talking about harassment? 24 A The language in the letters written to the 25 women doctors, notably Dr. Marian Crane, is Worldwide Court Reporters, Inc. 1-800-745-1101 36 (Pages 141 to 144) 145 1 harassment. Here was a woman who wanted to warn moms 2 and dads not to use poisonous paints, and they 3 wouldn't let her do it. 4 Q Who is "they"? 5 A Well, there's a long list. 6 Q You want to look at -- 7 A 1 don't know -- 8 Q --any ofyour documents? I'd be glad to9 "Hour ofLead" -- 10 A Yeah, sure. 11 Q -- or another document? Which would you 12 like to see? 13 A "Hour ofLead." 14 Q Okay. It's here. Oop, I may not have a 15 clean copy. 16 A No, that's it. 17 Q Okay. Here's my copy. 18 A No, it's not 19 MR. SCOTT: I've got one here. 20 A See, 1 think I took it because 21 Q (BY MR. HARDY) I don't think I have any 22 notes ofsignificance in there. 23 A Huh? 24 Q You're welcome to... 25 A Okay. I think Karen Florini took that 147 1 Q But not everything in "The Teacup and The 2 Sponge" got into "The Hour ofLead"? 3 A That's correct. 4 MR. HARDY: And we'll get a copy of 5 this at some point, hopefully. 6 MR. SCOTT: You've got it. 7 MR. HARDY: We do? 8 MR. SCOTT: You've got a copy of "The 9 Teacup and The Sponge." 10 THE WITNESS: In the stuff1 sent you. 11 MR. HARDY: No, I think you forgot. j 12 MR. SCOTT: Pretty sure I did, but -- j 13 MR. HARDY: I think -1 would have 14 noticed it. j 15 A Here we go. Sherwin-Williams, "Generally 1 16 speaking, toy enamels are combinations ofbrilliant 1 17 nonpoisonous pigments or colors." | 18 Glidden, "The correspondence mentions a 1 19 danger of poisoning years ago involving a green oil | 20 stain." And then it stales -- this is in the mid | 21 Thirties -- "and then we started to manufacture I 22 oil-type enamels. And of course, in manufacturing I 23 these enamels, the subject of poisonous properties of 24 lead was kept in mind, and these toy enamels were made 25 lead free." 146 1 portion out of this version of "The Hour of Lead." 2 Q Okay. Is there -- 3 A I don't think it is in any of the 4 documents -- 5 THE WITNESS: Unless I might have sent 6 you, Ron, the larger version. I'd be glad to provide 7 it, but it does have extracts -- 8 MR. SCOTT: "The Teacup and The 9 Sponge"? 10 THE WITNESS: Sure. Let's have a look 11 at that. 12 MR. SCOTT: (Complying.) 13 Q (BY MR. HARDY) What is it that you're 14 looking at? 15 A The bibliography that you asked for is right 16 here. 17 Q Okay. And what is this talking about here? 18 A This is the 1980 -- 1991 version of "The 19 Teacup and The Sponge." 20 Q So that's what you sent to your agent, 21 something like that? 22 A Well, you know, something like this, yes. 23 Q And then it eventually led to "The Hour of 24 Lead"? 25 A Yes. 148 1 Schoenhut Company -- and the 2 correspondence at the Children's Bureau has volumes of 3 such correspondence with language clearly meant to 4 confuse the well-intentioned physician, in my opinion. 5 Q In the 1930s 6 MR. SCOTT: Go ahead -- go ahead and 7 take this. I mean, I think this has been produced to 8 you guys in the stuff we sent. We certainly meant for 9 it to. If ifs not in there, it was a mistake and you 10 can take this today. 11 THE WITNESS: There are a couple 12 different versions floating around, and I'd be glad to 13 help clarify. 14 MR. HARDY: Okay. 15 MR. SULLIVAN: You want to mark that? 16 MR. SCOTT: Yeah, you can take that and 17 we'll 18 MR. HARDY: Yeah, maybe we'll mark that 19 later. 20 Q (BY MR. HARDY) In the 1930s, it's true, is 21 it not, that the Children's Bureau was issuing 22 guidance to parents not to use lead paint on cribs and 23 toys? 24 A I found a report that there was something 25 issued in either 1933 or 1935. I have not been able 1 Worldwide Court Reporters, Inc. 1-800-745-1101 37 (Pages 145 to 148) 149 1 to find it. The document that was published in 1945 2 which elicited these -- some ofthese comments I did 3 find, and that's the one that was ultimately withdrawn 4 at -- much to the -- well, it was withdrawn. 5 Q And am I right that this 1945 document 6 A Yes. 7 Q -- is a long list of paint pigments -8 actually, two long lists of paint pigments: Those 9 which the Children's Bureau thought was okay, and 10 those which the Children's Bureau thought was not 11 okay. Is that what you're referring to? 12 A I believe so. I wouldn't want to be -13 well, I'd like the chance to look at it before I gave 14 an affirmative answer, but yes, I think that's right. 15 Q Okay. This document you recall that we're 16 talking about -17 A Yes. 18 Q -- is it your recollection that it was 19 issued by the Children's Bureau, but with the 20 concurrence also of the National Public Health Service 21 and the National Bureau of Standards? 22 A I don't know about that. 23 Q But it is your recollection that this list 24 of good and bad pigment, so to speak, was, indeed, 25 issued by the Children's Bureau? 151 1 that the recommendations of the Children's Bureau not 2 to use lead paint on cribs and toys ever changed? 3 A I'm sorry. Say it again. 4 Q Are you aware of any evidence that the 1 5 recommendations of the Children's Bureau, going back | 6 to the 1930s, not to use lead paint on cribs and toys, i 7 ever changed? 8 A What do you mean "ever changed"? 1 don't 9 know what you mean. 10 Q Are you aware of anyone who ever suggested 11 to the Children's Bureau that it should alter its 12 recommendation not to use lead paint on cribs and 13 toys? 14 A I guess I can't go along with that wording. 15 It -- it was really poisonous paints that I think they 16 were interested in. So it would be wrong for me to 1 17 agree that it -- about lead. She was interested in | 18 poisonous paints. And that-- I 19 Q Was -- go ahead. I 20 A I would say there was active discouragement 1 21 from disseminating this piece of paper. 1 22 Q But was there any active discouragement from 8 23 recommending against the use of lead paint on cribs 1 24 and toys? I 25 A I'm inclined to say yes, that she. 150 1 A A list was issued in 1945. 2 Q And a number of lead pigments, several, was 3 on the do-not-use list on these recommendations. Is 4 that your recollection? 5 A It is my recollection. 6 Q And nobody in industry prevented the 7 Children's Bureau from issuing that list? 8 A It appears that it was made difficult for 9 her to reissue that list 10 Q And when would that have been? 11 A I think she was trying throughout the late 12 Forties. My recollection was that it was up until -- 13 I have to -- maybe '49 is when she threw in the towel 14 and said, "Okay. Forget it." 15 Q Is it your recollection that she threw in 16 the towel or, rather, that she indicated another part 17 of the government might better be able to maintain the 18 list? 19 A It was the same thing, in my view. 20 Q Because? 21 A Because it appears that the people who were 22 going to maintain the list better, as you put it, were 23 people who had a history of limiting public knowledge 24 about the dangers of lead paint. 25 Q Was there any suggestion you saw anywhere 152 1 Dr. Crane, wanted to reissue the 1945 publication and 2 couldn't do it. 3 Q Did anyone suggest to her a reason for not 4 reissuing that statement was that she had lead paint 5 in the wrong column? 6 A Well, I can't find the passage I was looking 7 for, but... 8 Q What was it you were looking for? 1 9 A I was looking for language which -- in which 10 I can only describe as gobbledygook that was sent back 11 to Dr. Crane explaining why this might or might not or 12 possibly could be, maybe once was dangerous. I mean. 13 it was impossible. So the answer to your question is, 14 it seemed like pretty active discouragement. 15 Q Are you aware that in 1952 or '3, the 16 National Safety Council reissued this list ofpigments 17 to use and not use on cribs and toys? 18 A I'm not. Something was reissued, and it 19 might have been that same list that you're talking 20 about. Ifs not clear that it was ever disseminated. 21 Q Are you aware of a publication called "Home I 22 Safety Review" that the National Safety Council issued 23 in the 1950s? 24 A (Moving head side to side.) I am not. 25 Q And do you know to whom that publication was Worldwide Court Reporters, Inc. 1-800-745-1101 38 (Pages 149 to 152) 153 1 disseminated? 2 A Ido not. 3 Q When 1 asked you before about your 4 unwillingness to give LIA credit for the ASA standard 5 on lead paint, I believe you told me there were two 6 sets of events that led you to be reluctant, and one 7 was the Children's Bureau. 8 A Right. 9 Q What was the other? 10 A I think the other was that, as I had 11 mentioned this morning, the American Academy of 12 Pediatrics soon found a loophole in it, which was 13 described by the eminent scientist Edward Press as a 14 loophole. 15 Q And what document do you rely on to base 16 Mr. Press' discussion of a loophole -17 A Dr. Press. 18 Q Dr. Press. Indeed, he was. 19 A It was a newsletter to the American Academy 20 of Pediatrics. 21 Q Which I believe is cited in your 22 A I don't -- I'm not sure it is. I'm not sure 23 it's in there. 24 It's not in there. 25 Q I thought it was. 155 1 A The second week of January, 2002. 2 Q Was this somebody from Mr. Scott's law firm 3 or associated law firm that asked you to do this? 4 A It was Mr. Herring from Fleming & 5 Associates. 6 Q And do you know why he asked you to do it? 7 Did he explain what he needed? 8 A I think he needed me to affirm that white 9 lead was marketed up into the 1950s and to comment on 10 the ANSI standard. 11 MR. HARDY: Here's another copy, Ron. 12 Q (BY MR. HARDY) Did you write this 13 affidavit? 14 A You bet. 15 Q Was it edited by anyone before it was filed? 16 A Yes. 17 Q Would that have been Mr. Herring? 18 A Mr. Herring and/or his associates. 19 Q Do you recall what changes they suggested? 20 A I think the principal changes were that I, 21 in fact, had another page, maybe 250 or 300 words 22 on -- more precisely, on the Children's Bureau 23 exchange. 24 Q And that was taken out? 25 A Yes, it was. And then we did -- it was a -- 1 J I 1 1 1 1 | I 1 1 1 154 1 A I don't think so. 2 THE WITNESS: Can I get a cup of 3 coffee? 4 MR. HARDY: Yes. Please, do that. 5 THE VIDEOGRAPHER: Offthe record, 6 2:25. 7 (Recess from 2:25 p.m. to 2:34 p.m.) 8 THE VIDEOGRAPHER: On the record, 2:34. 9 Q (BY MR. HARDY) Mr. Reich, I think I may 10 have solved our question about your citation of 11 Dr. Press' -- 12 A Yes. 13 Q Do you recall signing an affidavit this 14 month? 15 A That's the one. 16 Q In another lawsuit? 17 A Yes. 18 Q And what lawsuit's that? 19 A In Mississippi, I believe. 20 MR. HARDY: And why don't we mark that 21 affidavit as Exhibit 182. 22 (Exhibit No. 182 marked.) 23 Q (BY MR. HARDY) Mr. Reich, could you just 24 tell us briefly when you were asked to do that 25 affidavit? 156 1 for the purposes of this, it was a -- a more concise 2 paragraph, actually, was put in. 3 Q Any other changes you recall? 4 A Not -- not really. 5 Q Now that we've got this document for you to 6 look at, your description to me of a loophole in the 7 ASA standard, you indicated, is something you've 8 learned about from an Academy of Pediatrics 9 newsletter? 10 A Yes. 11 Q Is that the newsletter cited in footnote 26 12 ofthis affidavit? 13 A It is. 14 Q And what's your recollection of what's 15 stated in that newsletter? 16 A My recollection is that Dr. Press and others 17 were troubled that because of wording or whatever, 18 that the word that they used as a loophole had been 19 allowed in the 1955 version, and they were hoping to 20 correct it in the '64 amendment. 21 Q Did they correct it? 22 A I believe so. 23 Q Are you aware of any opposition from any 24 lead or paint company to that correction? 25 A I am not. Worldwide Court Reporters, Inc. 1-800-745-1101 39 (Pages 153 to 156) 157 1 Q We started this discussion by my asking you 2 whether it was your understanding that it was the Lead 3 Industries Association that originally recommended an 4 ASA standard be developed on the lead content of 5 paint. 6 A (Moving head up and down.) 7 Q Do you have -- if I said that was my 8 understanding, would you disagree with me? 9 A No. 10 Q Do you have any reason to believe or facts 11 to show that the ASA standard which called for less 12 than 1 percent iead in paint on toys, cribs, and 13 household interiors was anything other than a good 14 faith representation of the views of the persons who 15 issued the standard? 16 A Did I think it was anything other than a 17 good faith... 18 Q Representation of the views of the people 19 who issued the standard? 20 A I think it was more than that. 21 Q What do you think it was more than that? 22 A I think more than that, it was public 23 relations, and I won't use the noun. 24 Q Whose public relations? 25 A Those with an interest in selling and 159 1 Q And that's on pages 37 and 38 and 39 and 40; 2 is that right? 3 A Well, ifyoujust let me have a - yes. 4 Q Are the episodes on these four pages an 5 inclusive list of the events that you had determined 6 were oppositioned by the lead industry to regulation? 7 A I would say there's at least one -- one 8 exception. 9 Q What's the one exception that's not included 10 here? 11 A One exception thafs not included here is 12 that prior to coming to this meeting, I thumbed 13 through various books and documents that I have, and I 14 did find a comment by George B. Heckel to the effect 15 that legislation -- legislation concerning regulation 16 of paint and -- and he used -- put the word "poison" 17 in quotation marks, had come up and that they had -1 18 think he said "successfully put down 167 pieces of 19 legislation." 20 Q Do you know what Mr. Heckel was referring to 21 there? 22 A I think probably a lot of it was labeling 23 legislation. It may also have been the type of 24 legislation that Mr. Warren referred to in 1910 where 25 I guess it became before the United States Congress, I 1 I I | 158 1 marketing pigments. 2 Q And what leads you to conclude -- what 3 documents do you rely on to conclude that it was a 4 public relations effort? 5 A I rely on -- if we're talking 1955 -- on 50 6 years of opposition to any kind of regulation or 7 legislation involving lead. Out ofthe blue, presto, 8 there's this voluntary standard. I find that more 9 than goodwill or good faith. 10 Q Let's 11 MR. SCOTT: May we hold a moment? 12 THE VIDEOGRAPHER: Offthe record, 13 2:41. 14 (Recess from 2:41 p.m. to 2:46 p.m.) 15 THE VIDEOGRAPHER: On the record, 16 2:46. 17 Q (BY MR. HARDY) Mr. Reich, you made 18 reference a minute or two ago to opposition to 19 regulation of lead -20 A Yes. 21 Q --prior to 1955. 22 A Yes. 23 Q And in Exhibit 181, there is a discussion of 24 some such opposition, am I not right? 25 A Yes. 160 1 but I - he just simply says that there were -1 2 believe it was 167 pieces of legislation. 3 Q Do you know when that legislation was? 1 4 A I think it was - I don't know, but judging 1 5 from the context, it was from 1906 up into the 6 Thirties sometime. 7 Q This is in -- in Mr. Heckel's book? 8 A Yes. 9 Q Do you remember what page he makes this 10 reference to? 11 A I don't, but I'm happy to provide it, if 12 requested. 13 Q We will ask Mr. Scott to ask you to provide 14 it. 15 The first opposition to regulation that 16 you discussed in Exhibit 181 has to do with the period 17 from 1900 to 1906. 18 A Yes. 19 Q What was being opposed by whom then? 20 A Well, the principal issue was around 21 labeling, although I've recently learned that Senator 22 Ladd, although he wasn't a senator at the time, had 23 introduced some paint legislation earlier in the 24 1890s. But principally, it was around adulteration 1 E 25 and labeling. i Worldwide Court Reporters, Inc. 1-800-745-1101 40 (Pages 157 to 160) 161 1 Q And by "adulteration," what do you mean? 2 A Well, it's -- it was an interesting 3 question, what it meant and what it means now. 4 Q What did it mean in the context of 1900 to 5 1906 in those legislative proposals in North Dakota 6 and elsewhere? 7 A Well, 1 think that the way Ladd would have 8 regulated it would have made things that didn't 9 contain lead or zinc, they would have been 10 adulterated. And the idea was that it would have 11 cramped any kind of innovation and that's why Heckel 12 and company were pretty upset with it. 13 Q Heckel and company were representing paint 14 companies or -- 15 A As far as I know, everybody went out there. 16 It sounded like they got on a train and had a big old 17 time, to read his accounts of it. 18 Q And so ifs your understanding that Heckel 19 and company, representing mixed paint companies, were 20 opposed to the idea that you had to have lead in your 21 paint? 22 A Well, they were opposed to labeling. I 23 think that's -- that was really what the issue was 24 because I -- well, that's enough. 25 Q Is it your understanding - or am I right -- 163 1 So when I see lead chromate or chrome 2 yellow, a red flag goes up, and I think it was going 3 up for Dr. Ladd. But I have not been out there and I 4 have not sent a research assistant out there either. 5 Q So you haven't really seen any documents 6 suggesting that the labeling battles in North Dakota 7 and in this era elsewhere from 1900 to 1906 had 8 anything to do with lead toxicity? 9 A That's right. 10 Q You mentioned awhile ago -- and it may not 11 be in Exhibit 181 -- something about what Congress did 12 on lead paint in 1910? 13 A That's from Warren's book. He -- Warren has 14 all that. 15 Q Have you ever looked at the primary ` 16 materials from that Congressional episode? 17 A Not that from that -- not from that 18 Congressional episode, I haven't. 19 Q Are you aware of any suggestion in the 1910 20 Congressional debate that lead pigment should not be 21 used in residential paint? 22 A I'm not. 23 Q The next opposition to regulation which you 24 discuss in Exhibit 181 is dated -- let me just read 25 what you say. "1921: National Paint, Oil and Varnish 1 1 1 | 1 | 1 I 1 1 | 1 162 1 strike that. 2 Am I right that these disputes with 3 North Dakota and Dr. Ladd had to do with what 4 ingredients were in paints and not with the toxicity 5 of paints? 6 A I'm not sure about that. There's enough 7 evidence in that doctoral dissertation to suggest that 8 the toxicity of lead pigments was on the table. 9 Q In what way did you discover in the doctoral 10 dissertation it was on the table? 11 A Because I believe that lead chromate was 12 included in the -- in some ofthe wording ofone of 13 the North Dakota statutes as an adulterant. 14 Q As an adulterant. But does that tell you 15 something about toxicity? 16 A Given the history of lead chromate, yes. 17 Q And why is that? 18 A Well, the mineral pigments were recognized 19 as poisonous a couple ofthousand years ago and were 20 recognized as poisonous throughout history and crashed 21 into American history with the Baker's Buns incident 22 in 1887, which was further elucidated in the Journal 23 of Science and by Dr. Stewart, and apparently alluded 24 to by Harvey Wiley in some of his testimony about the 25 Food and Drug Act. 164 1 Association protests strongly against the proposal to 2 prohibit the use ofwhite lead in painting, (see also 3 Daily Intelligencer, Volume III, No. 23, page 721, and 4 Volume IV, No. 14, page 326)" and you cite the ILO 5 white lead -6 A Right. 7 Q What was that all about? 8 A Well, to my understanding, that was the 9 statement of opposition to the -- better let me have a 10 look here. 11 Q (Complying.) 12 A It was the strong protest of the NPVLA 13 against the proposal to prohibit white lead. 14 Q And that was the proposal ofthe 15 International Labor Organization? Is that what they 16 were opposing? 17 A I believe so. 18 Q And I believe we discussed earlier today the 19 fact that there were also some painter groups who 20 opposed the ILO recommendation? 21 A And there were some that favored it. 22 Q Correct? 23 A Right. 24 Q But the proposal to prohibit use of white 25 lead in painting, which was being opposed in 1921, was 1 Worldwide Court Reporters, Inc. 1-800-745-1101 41 (Pages 161 to 164) 165 1 not a proposal ofany United States governmental 2 agency; is that right? 3 A That's right. 4 Q Your next example is labeled 1930s and 5 1940s, and you indicate: "Recent publications relying 6 on minutes from the Lead Industry Association meetings 7 in the 1930s document the LlA's continuing concern and 8 aggravation over numerous flare-ups involving lead 9 poisoning in the period 1928 through 1947, when Felix 10 Wormser championed the lead industry's interests 11 against negative publicity," end of paragraph. 12 A Yes. 13 Q Is there anything in that period, in 1930s 14 and 1940s, of which you're aware where the Lead 15 Industries Association opposed regulation of lead 16 paint? 17 A What was the time period again? 18 Q 1930s and 1940s. 19 A I guess I would raise the -- that Heckel 20 item that 1 mentioned a few minutes ago as supporting 21 that. 22 Q The Heckel reference to -23 A 167 24 Q ~ the use ofthe word "poison"? 25 A Yes. 167 I 1 A I don't recall. But I do recall a phone 1 2 conversation in which this fellow was distressed that 1 3 the legislative -- what do you call -- head 1 4 legislative history, is what you call it, I guess, was 1 5 not there. 1 6 Q Do you recall which Philadelphia 1 7 ordinance -- 1 8 A I'm sure I -- I can find it. If you'll ask 9 Mr. Scott, I'm sure I can try to find out where that 1 1 10 was. It may just be a note on some correspondence, 1 11 but -- I 12 Q But you might have that note? I 13 A I might. 14 Q Okay. And we will ask Mr. Scott. 15 By chance, do you recall whether it was 16 a 1964 Philadelphia lead paint ordinance? 17 A I really don't know. 18 Q Do you recall any other archivists 19 indicating a problem with missing documents? 20 A It seems like there was, but I can't truly 21 say that I know when and where. 22 Q So let's go back to 1930s and 1940s. 23 A Yes. 1 I 24 Q With the exception of the Heckel references 1 25 to poison, are you aware of any other LIA opposition 1 166 168 I 1 Q And you thought that was in the period? 2 A Twenties, Thirties, perhaps. 3 Q Twenties, Thirties. .4 A He wasn't vety specific. 5 Q And you don't recall who proposed the word 6 "poison" -7 A Well, Heckel -1 don't. 8 Q -- in that era? 9 A (Moving head side to side.) 10 Q And we'll get that reference from you later? 11 A Yes. 12 Q Other than that, do you have any information 13 which has led you to believe the Lead Industries 14 Association opposed regulation of lead paint or 15 pigment in the 1930s or 1940s? 16 A I guess I'd like to say for the record that 17 when I did send researchers to certain public 18 collections where municipal or state regulations were 19 under consideration, archivists reported to me that 20 they were troubled that certain documents were missing 21 from public collections. 22 Q H'm. Where did that occur? 23 A Well, it occurred in -- primarily at 24 Philadelphia 25 Q At what library? 1 to regulation of lead paint and pigment -- or 2 pigment? 3 A Well, yeah, there's the thing with our 4 friend Manfred Bowditch. 5 Q What's that thing? 6 A . Well, when Manfred Bowditch was the 7 occupational health director in Massachusetts -- and 8 this was in the early Thirties, I think -- he wanted 9 to take -- adopt some kind ofregulation to protect 10 workers, I think. And Felix Wormser came up to 11 Massachusetts and "procured a satisfactory outcome," I 12 think, was the exact wording. 13 Q The exact wording in what? 14 A In Wormser's communication. 15 Q Do you know what it was Mr. Bowditch and the 16 Department ofLabor were proposing? 17 A No. 18 Q Have you ever tried to determine what they 19 were proposing? 20 A Yeah, I have it in my files at home. I just 21 can't remember. 22 Q Oh, you think you may -- 23 A Oh, I have it. I just don't know what it is 24 right now. ___II _J25 Q You have their proposal? ____________ f Worldwide Court Reporters, Inc. 1-800-745-1101 42 (Pages 165 to 168) 169 1 A I believe -- 1 believe 1 have documentation 2 as to what was at issue. 3 Q So we can ask you to look for that -- 4 A Sure. 5 Q -- in your files, too, please. Then, we 6 will do that. 7 Anything else in the 1930s or Forties? 8 A I guess -- I think it's important that -- 9 it's one of these situations where a negative finding 10 is significant or potentially significant. And 11 referring once again to that Graebner article, he 12 makes the point that after the introduction of 13 tetraethyl lead, there was no regulation of lead. 14 Q Yes. Well, let me ask it this way: Are you 15 aware of any public health or governmental official or 16 public health or medical academic person in the United 17 States who recommended in the 1920s that lead paint 18 not be used to paint houses? 19 A No. 20 Q How about the 1930s? 21 A You're only talking about houses, right? 22 Q Inside or out, right. Surfaces of houses, 23 inside or out. 24 A Well, 1 do come back to that Children's 25 Bureau thing, that there was something that they -- 171 1 officials who recommended that lead paint not be used 2 on houses in the 1940s? 3 A I believe that Huntington Williams and 4 company probably did. I don't know that 1 can lay my 5 hands on it. 1 I6 Q When do you believe Huntington Williams and 7 the Baltimore Health Department first made such a | 8 recommendation? 1 9 A I don't know. | 10 Q There's a reference which I could probably I 11 find in some of your writings to Baltimore's 1941 1 12 Housing Ordinance. 13 A M-h'm. 1 | 14 Q Do you have any documents to suggest, as you 15 do in your writings, that that ordinance had anything 16 to do with lead paint? 1 17 A I can't say without referring back. 1 18 Q Do you have something you would refer back | 19 to to check out that question for me? I 20 A 1 think my--my--the information I have | 21 on Baltimore is '58. I'm not sure I have something on 8 22 City stuff from the '41. I 23 Q Well, in Exhibit 181 there is a reference 1 24 here where you say late Forties through 1958. It's 1 25 the next paragraph. 1 170 1 there was an effort there to suggest not using 2 poisonous paints on -- 3 Q On what sorts of surfaces? 4 A I haven't ever seen that publication. I've 5 just seen it referred to. Have you seen it? 6 Q I think so, but I'm not on the -7 MR. SCOTT: We'II send you a bill for 8 it. 9 Q (BY MR. HARDY) I'm not testifying today. 10 But you're not aware of any public 11 health recommendations not to use lead paint on houses 12 in the 1930s? 13 A That's correct. 14 Q You are aware, no doubt, ofpublic health 15 recommendations not to use lead paint on cribs or toys 16 in the 1930s? 17 A I'm not. 18 Q You're not? 19 A (Moving head side to side.) 20 Q Have you ever looked at, for example, the 21 radio scripts ofthe Baltimore Health Department 22 through the 1930s on this subject? 23 A I haven't. 24 Q Are you aware ofany governmental or public 25 health or academic, medical, or public health 172 1 A Yeah. Yeah. 1 |2 Q And you say "continuous interaction between 3 paint manufacturers and Baltimore City Health i 4 Department from first ordinance 1941" -- 5 A Yeah. 6 Q -- "to 1958." And I guess what I'm asking 1 I | 7 you about is this reference to 1941, what it's based 8 on? 9 A Well, it's either a - it's probably --1 10 don't know what it's based on, but I have a folder on 11 Baltimore and I'm -- it's either some communication or 12 publication by Williams or possibly a newspaper 13 thing. 14 Q So you would be able to determine if you 15 have something tying the '41 ordinance to lead paint? 16 A That's right. 17 Q Because I notice here you cite an article by 18 Rosner and Markowitz, not the primary material -- 19 A M-h'm. M-h'm. 20 Q Okay. With the exception of Baltimore and 21 its recommendations in the 1940s, are you aware of any 22 other, governmental or academic, public health, or 23 medical officials who recommended against the use of 24 lead paint in or on houses before 1950? 25 A I guess I can't think of any. Worldwide Court Reporters, Inc. 1-800-745-1101 43 (Pages 169 to 172) 173 1 Q How about any architect who recommended 2 against using lead paint in or on houses before 1950? 3 A I can't. 4 Q So would you agree with me that prior to 5 1950, there were no U.S. doctors or governmental 6 officials recommending against household use of lead 7 paint -8 A No. 9 Q -- for the Lead Industries Association to 10 disagree with? 11 A I wouldn't agree with that. 12 Q Because? 13 A I tell my students that I believe in the 14 bona fide hypothesis, and I believe that there may 15 very well be a document out there that does suggest 16 that, so I'd... 17 Q But you haven't seen it? 18 A I haven't seen it. 19 Q Okay. In "Hour of Lead," on page 2, which 20 is part of your introduction, you make the comment 21 that, quote, "U.S. policymakers have ignored evidence 22 about lead paint." And we can get the whole sentence 23 if you'd like to see it, but my question is: On what 24 basis did you reach that conclusion? 25 A Even before I read the Graebner chapter, I 175 1 beginning Tape 4. 2 Q (BY MR. HARDY) Whatever the hegemony 3 created by Dr. Kehoe -- 4 A And company. 5 Q And company. Who do you mean by "and | 6 company"? 7 A Aub. 8 Q Was this a collective effort of Drs. Kehoe 1 1 1 9 and Aub? 10 A I don't think so. 11 Q Was this hegemony fostered by the Lead 12 Industries Association? 13 A I think it was. j 14 Q How was that done? 15 A By sponsoring research that focused on I 16 occupational aspects of lead poisoning, by minimizing 17 dangers of childhood lead poisoning, and by 18 maintaining an agenda to restrict or control or defer 1 19 regulation. I 20 Q It's true, is it not, Mr. Reich, that 1 21 through the 1920s and 1930s, doctors, like Blackman | 22 and Blackfan in Baltimore and McKhann in Boston, | 23 published many articles on childhood lead poisoning? 24 A They published articles on childhood lead 25 poisoning. 174 1 had come to the conclusion that after 1926, there was 2 basically no debate and that -- and Robert Kehoe, by 3 his own acknowledgment, said that he issued four 4 separate warnings starting in -- not warnings, four 5 separate statements starting in 1927 that there was no 6 threat to the public. 7 Q And is it your conclusion, Mr. Reich, that 8 Dr. Kehoe spoke and everybody else kept silent? 9 A Just about. 10 THE VIDEOGRAPHER: Three more minutes 11 left. 12 Q (BY MR. HARDY) And do you have an 13 explanation of why everyone else could have, would 14 have kept silent just because Dr. Kehoe spoke? 15 A The argument would be, as -- as advanced 16 once again by our colleague Dr. Graebner, that there 17 was a medical hegemony from 1926 to 1965. And so it 18 was moot for most American physicians and public 19 health people. 20 MR. HARDY: I'll let you change your 21 tape. 22 THE VIDEOGRAPHER: Offthe record. 23 3:1 Lending Tape 3. 24 (Recess from 3:11 p.m. to 3:13 p.m.) 25 THE VIDEOGRAPHER: On the record, 3:13, 176 1 Q Nothing about the hegemony prevented those 2 publications; is that right? 3 A It may have influenced those publications. 4 Q To what documents would you point to show 5 that influence? 6 A I would point to a footnote in Dr. McKharm's 7 article -- 1 believe it may have been his last article 8 in 1933 -- in which he references a voluntary effort 9 by the industry to control paints -- lead exposures in 10 paints, toys, woodwork, and cribs, I believe. 11 Q Do you have any reason to doubt the accuracy 12 of what Dr. McKhann reports in that footnote? 13 A Only the fact that the lead industries and 14 companies decided they had to do another voluntary 15 standard in 1955. 16 Q If I told you that the lead industry's 17 efforts, as referenced in the McKhann footnote, 18 referred to cribs and toys but not house paint, would 19 that sound wrong to you? 20 A I think that's what it referred to. 21 Q And then is it therefore not possible that 22 the issue of crib and toy use of lead paint was, in 23 fact, addressed by the Lead Industries Association in 24 the 1930s and by contrast, the standard that the Lead 25 Industries Association promoted in the early 1950s had 1 Worldwide Court Reporters, Inc. 1-800-745-1101 44 (Pages 173 to 176) 177 1 to do with lead paint use on different sort of 2 surfaces than the household surfaces? 3 A 1 don't buy that. I mean, the wording -- we 4 may have to look at the wording. 5 Q But why wouldn't you buy that distinction? 6 A I just -- because I don't have the wording 7 exact in front of me. 8 Q Okay. 9 A But that's -- that's the answer. 10 Q You indicate in "The Hour of Lead" that 11 there was considerable use -- ifs on page 6, footnote 12 7 if you want to look at it -- "considerable use of 13 lead paint in post-World War I tenements." Do you 14 recall that statement? 15 A I think so. 16 Q Do you recall the basis for your 17 understanding ofthat? 18 A I believe that it was the Paint 19 Manufacturers Association advocating interior paints 20 as an alternative to wallpaper and as a conservation 21 measure to protect -- to save trees, and this occurred 22 probably prior to and after World War I. 23 Q What leads you to connect those paint 24 industry promotions to use paint to the use of lead 25 paint in tenements? 179 1 hold, so it was just dirt, I think. I'm not sure that 2 they thought of it as germs. The progressive ones 3 might have. 4 Q When did germ theory become part of medical 5 knowledge in this country? 6 A I would say in the first two decades ofthe 7 Twentieth Century. 8 Q And public health officials in this country 9 were aware of germ theory and concerned about how to 10 do something about germs? Is that what happened? 11 A I'd like to hope so. I mean, I don't know 12 ifthe guy up in Vermont, if I told him that an 13 invisible organism could enter his body unseen and 14 multiply infinitely and kill him, I'm not sure he 15 would have believed me in 1905. 16 Q But public health departments were beginning 17 to believe that was a serious public health problem? 18 A Yes. 19 Q And do I understand you to say one ofthe 20 ways of addressing that problem advocated by public 21 health departments was to have painted and, therefore, 22 washable walls? 23 A No, I'm -- I don't know that public health 24 departments advocated painting and washing. 25 Q Ahh. Did the public health departments 1 | 1 | I 1 j 1 178 1 A I have examined public health documents from 2 state health departments during that time period, and 3 public health warnings were distributed to public 4 health officials warning about disease-carrying 5 immigrants; and this was a very convenient way for 6 landlords to put on a washable, sanitary, protective 7 coating. 8 Q Let me make sure 1 just understand that. 9 State public health officials? 10 A Yes. 11 Q In what era are we talking about? 12 A During the period of immigration when --1 13 don't --1 really don't even remember the exact, but 14 it was during the late Nineteenth, early Twentieth 15 Century. 16 Q Continuing into the 1920s? 17 A I don't --1 don't recall exactly, but there 18 were -- 19 Q Certainly around 1900 -20 A Yes. 21 Q -- and for some years after that. 22 And these public state health officials 23 were concerned about germs; is that right -- or the 24 transmission of germs? 25 A Well, germ theory was just barely getting 180 1 advocate having washable walls? 2 A I don't know. Somebody did. 3 Q But you never looked into whether public 4 health departments recommended washable walls? 5 A That's correct. 6 Q You are aware, though, I gather from what 7 you've said, that somebody was recommending washable 8 walls? 9 A That's right. 10 Q In order to wash out germs? 11 A Well, save the surface. 12 Q But also in order to be able to wash out 13 germs? Is that what you're indicating you've seen? 14 A Yeah. 15 Q But you don't remember who was advocating 16 that? 17 A Who was advocating save the surface? 18 Q No, who was advocating as a public health 19 measure having washable walls so you could wash out 20 germs. 21 A I don't. 22 Q Would that have been a measure in the 23 period, let's say, from 1900 to 1920 that was 24 consistent with public health knowledge? 25 A Yes. 5------ SES Worldwide Court Reporters, Inc. 1-800-745-1101 45 (Pages 177 to 180) 181 1 Q And that was an era of 1900 to 1920 when. 2 prior to vaccines and antibiotics, germs were a 3 considerable public health threat? 4 A That's correct 5 Q Am I right, Mr. Reich, that through the 6 Twentieth Century, a number of medical doctors and 7 medical associations have addressed the issue of how 8 much lead is too much lead? 9 A No. 10 Q Why would that not be a correct statement? 11 A 1 think it was -- it was moot, 1 think, 12 until 1965. 13 Q Why was that? 14 A Two reasons: One was because ofthe 15 medical -- you say "hej-a-mony" (phonetic), I say 16 "heg-a-mony" (phonetic), and the other was the belief 17 that childhood and adult exposures were prevalent. 18 Q Did not Dr. Oliver, for example, in his ,19 writings, in Britain in the first decade ofthe ,20 century -21 A Doctor who? 22 Q Oliver. 23 A Yes. 24 Q -- address the issue of how much lead is too 25 much lead? 183 1 adverse effects of lead poisoning? 2 A I think in 1935, Dr. Kehoe stated that the 3 question of long-term effects from ingestion of minute 4 quantities remained open to question. 5 Q But he, too, like Dr. Oliver and Dr. Legge, 6 were addressing all through this period the issue. 7 were they not, of how much lead is safe versus how 8 much lead causes adverse effects? 9 A In occupational settings. 10 Q Correct. 11 A (Moving head up and down.) 12 Q Are you aware ofmedical groups who 13 addressed that issue for children? 14 A 1 believe that the group at Hopkins was 15 working in that direction. 16 Q And that would have occurred in 17 Dr. Chisolm's work in the 1950s? 18 A I don't know. 19 Q Are you aware of levels of lead in the blood 20 ofchildren which were believed by the American 21 Academy of Pediatrics in their reports over the years 22 to be safe versus unsafe? 23 A Yes. 24 Q And are you aware that in more recently 25 years, at least in the last 20 years, the United 1 I 1 1 1 | 1 I 1 1 | 182 I A I'd prefer to say that he was concerned 2 about how little lead is too much. 3 Q Is it not true that Dr. Oliver and ,4 Dr. Legge, L-e-g-g-e, in Britain, in working with the 5 health authorities in Britain the first two decades of 6 the century, came up with recommendations as to air 7 levels in lead plants below which it believed - below 8 which they believed to be no adverse health effects? 9 A I believe they did. 10 Q And did not the American Public Health 11 Association address similar issues in this country 12 later in the century? 13 A I believe that -- well, I'm not sure. 14 Q Well, one ofthe -- because -- one ofthe 15 documents you gave me this morning from your 16 collection is the "1943 Report on Occupational Lead 17 Exposure and Lead Poisoning" from the American Public 18 Health Association. Isn't there a discussion ofthat 19 subject in that 1943 publication? 20 A "Safe Limits ofOccupational Lead Exposure," 21 there it is. 22 Q And is it also not true that Dr. Kehoe, in 23 his writings, indicated what he believed were intake 24 levels of lead below which adverse effects did not 25 occur and levels above that at which he had found 184 1 States Government Centers for Disease Control has also 2 addressed this issue with respect to acceptable and 3 nonacceptable blood leads in children? 4 A Yes. 5 Q Would it be fair to say that the amounts of 6 lead considered acceptable or safe over the years both 7 for workers and for children have decreased? 8 A I'm not sure about the occupational 9 exposures, but I know that for children they have. 10 Q And am I right that, according to the 11 American Academy ofPediatrics and other knowledgeable 12 pediatricians, up until 1960 a blood lead level in 13 children 6 and under, ages, of60 was considered 14 acceptable? 15 A I don't recall the exact level. 16 Q But it's some number considerably higher 17 than the current level of concern, which is 10; is 18 that right? 19 A Yes. 20 Q And those levels of concern have gone down 21 over the last 40 years? 22 A Yes. 23 Q And those changing levels of concern reflect 24 doctors' progressively broader concerns with types of 25 exposure that might cause too much lead to get into | 1 Worldwide Court Reporters, Inc. 1-800-745-1101 46 (Pages 181 to 184) 185 1 the body? 2 A I think ifs also a reflection of what's 3 achievable. The acceptable level ofbutterfat in 4 fluid milk has gone down based on what our cows can 5 produce. So that - that certainly is a factor there. 6 Q And how would that be relevant to lead? 7 A Well, I think as -- in terms ofpublic 8 concern -- 9 Q Uh-huh. 10 A -ifthe dairy industry - for example, if 11 the standard for a woman today is 800 milligrams of 12 milk -- of calcium and I change the standard that a 13 woman has to have 1200 milligrams and the average 14 consumption is 800, suddenly millions of women are at 15 risk. And my point being that the acceptable levels 16 are not just a reflection of scientific knowledge 17 about what's demonstrable as a risk, but is what's 18 achievable. 19 Q And with respect to maintaining low blood 20 lead levels in children, more has been attainable as 21 the years go on. Is that what you're saying? 22 A That's more true for ambient air levels, but 23 not so true for kids living in public housing. 24 Q And why do you draw the distinction? 25 A Much of the decline in blood levels -- blood 187 1 to attend a high school that had red lead primer on 2 the steel beams on the ceiling; is that right? 3 A I'd feel uncomfortable about that. 4 Q And you would feel uncomfortable despite the 5 fact there's no evidence that the lead under six 6 layers of new paint, nonlead paint -- 7 A M-h'm. 8 Q -- is very unlikely -- in fact, I can't even 9 see how -- to ever get into the nose or mouth ofyour 10 children? 11 MR. SCOTT: Object to the form ofthe 12 question. 13 Q (BY MR. HARDY) You can answer if you-14 MR. SCOTT: You may answer it. 15 A I'll answer it by saying what one of my very 16 best public health teachers told me, which is, rare 17 events occur. 18 Q (BY MR. HARDY) Given that lack of comfort, 19 would you encourage your local Leverett school board 20 to remove the lead paint on those steel beams in the 21 high school gymnasium? 22 A I'm not --1 guess I'm not -- I'm longer a 23 public health official in that town, and I'm not sure 24 what I would recommend if they found it there. 25 Q Asa parent, would you recommend that? | | 1 1 1 I | 186 I lead levels has been attributed to the elimination of 2 tetraethyl lead from fuel, but surprisingly, there are 3 still pockets of substantial exposure and poisoning 4 among children in public housing projects, possibly in 5 schools. 6 Q Well, 1 think I asked you earlier today 7 whether you had any -8 A Yeah. Well, I mentioned those. 9 Q -- any evidence on schools. 10 A Yeah, and I mentioned those newspaper 11 articles. 12 Q Right. And newspaper articles indicating 13 that there was lead paint in schools? 14 A Yes. 15 Q But not whether any child had gotten an 16 elevated blood lead from attendance at those schools? 17 A Well, I sure hope my kids don't go to those 18 schools. 19 Q You mean schools with lead paint on the 20 steel beams -- 21 A Anywhere. 22 Q -- in the gymnasium? 23 A Anywhere. 24 Q You would not want your -- let me ask you 25 this, then, Mr. Reich: You would not want your child 188 1 A I'd prefer that they did. 2 Q And you would, am I right in assuming -- and 3 I may not be -- that you would prefer that whatever 4 monies it would cost to remove the lead paint from the 5 steel beams in the gymnasium be spent to do that as 6 opposed to buying new books for the library? I 7 A Can I object to a question? 8 Q You can say you can't answer it. 9 A I can't answer that. 10 Q Okay. We've just discussed, and I think 11 you've agreed, that the amount of lead considered 12 acceptable by the scientific community has declined 13 over the last hundred years; is that right? 14 A The amount of lead considered acceptable has 15 declined. I would say the amount of lead considered 16 dangerous has declined. 17 Q It's true, is it not, though, that the 18 various scientific committees and individual 19 scientists, like Oliver or Legge or Kehoe, who have 20 addressed that issue have generally addressed it as we 21 saw in that American Public Health Association report 22 in terms of both what's dangerous and, conversely. 23 what's safe? 24 A I'm not sure about the "safe" part. 25 Q Did doctors in the 1950s believe that any Worldwide Court Reporters, Inc. 1-800-745-1101 47 (Pages 185 to 188) 189 1 risk was posed to children whose blood lead level was 2 below 60? 3 A Ask it again, please. 4 Q Did doctors in the 1960s believe that any 5 harm had occurred to children 6 and under whose blood 6 lead level was always below 60 micrograms per 7 deciliter? 8 A I don't -- I don't -- there's too -- first 9 ofall, I don't think they were -- they were still .10 doing milligrams, I think, then and a lot ofpeople 11 were concerned that zero would have been a preferable 12 level. Harriet Hardy was adamant about that She 13 really wanted the level to be zero in paint. But 14 that -- .15 Q Right. Regardless, my question was whether, ' ..16 in fact, public health doctors, groups like the 17 American Public Health Association, the American .18 Academy ofPediatrics, had over the years developed .19 levels of lead in the air or in the water or in blood .20 in adults or in children which, on the one hand, they 21 considered unsafe versus, on the other hand, lower 22 than that level, safe? 23 A I really feel like there's enough of a voice 24 out there that's questioning whether any level is 25 safe. 191 | 1 familiar, Mr. Reich, with Dr. Kehoe's public | 2 pronouncements in the 1930s -- the first halfof the 1 3 1930s on children and lead paint? 1 4 A I believe that he did express some words of 5 caution and some uncertainty and left the door open I 6 for himself. 7 Q And he did that publicly? 8 A I believe he did. 9 Q And as far as you know, isn't it true that 10 in that period from 1930 to 1935, Dr. Kehoe expressed 11 no disagreement with the findings and recommendations 12 of, for example, Dr. McKhann with respect to children 13 and lead paint? 14 A I think Dr. McKhann went off the radar after 15 1933. 16 Q You indicate in one ofyour writings that j 17 Dr. McKhann, quote, softened his views? I 18 A Well,by-Ithink- 19 Q Am I quoting you correctly? I can find the 20 quote, but I think you do say that. Does that sound 21 familiar? 22 A 1 think he seemed to think that this 23 voluntary - voluntary activity by paint manufacturers 24 was a step in the right direction and he was perhaps 25 less strident. 190 1 Q Well2 A Like I say, I can't give you a citation, but .3 I'm unfortunately disagreeing with that statement. 4 Q Do you have an idea of where you might find 5 a citation of a scientist or scientific committee 6 suggesting earlier at any point over the period from 7 1900 to 1980, let's say, that the only safe level was 8 zero? 9 A Well, what comes to mind is the 1944 book by 10 Canterow and Trumper, I think, in which he quotes the 11 Melliar statement, which I think is in the first 12 decade of the century, and restates that concern, that 13 the task should be not to find out what level is 14 dangerous but to what -- to find out what level is 15 harmless. And that -- that was put forward early in 16 the Twentieth Century, restated in 1944, and I imagine 17 it has some adherence -- or had some adherence. 18 In other words, there were people after 19 1944 who were concerned to find out the level that was 20 truly harmless as a... 21 Q I guess my question was whether anybody in 22 the literature -- the medical literature from 1900 to 23 1980 suggested that the only harmless level was zero? 24 A I don't know. 25 Q Dr. Kehoe, in his hegemony -- are you 192 1 Q And am I right that the "step" that we're 2 referring to is keeping lead paint off of cribs and 3 toys? 4 A I'm not sure but what woodwork was in 5 there. But it was not interior walls, if that's what 6 you're getting at. 7 Q And I gather what you're telling me is that 8 it may be that Dr. McKhann, believing, in fact, lead 9 paint was being taken out of cribs and toys, was less 10 concerned about the problems he had found in his 11 published articles on children because the source of 12 lead in those published articles was no longer going 13 to be increased? 14 A I can't conjecture as to what he thought. 15 Q But you're certainly not aware of any 16 statements by Dr. McKhann suggesting that lead paint 17 shouldn't be used on household surfaces? 18 A I'm not aware of any. 19 Q I believe in "The Hour of Lead" and again in 20 Exhibit 181, you have a few references to medical 21 articles from many years ago like those of Dr. Oliver 22 where he referred to, in his words, quote, "small 23 amounts of lead." 24 Have you ever attempted, Mr. Reich, to 25 quantify the amount of lead that Dr. Oliver was Worldwide Court Reporters, Inc. 1-800-745-1101 48 (Pages 189 to 192) 193 1 referring to in, say, 1910 as a small amount of lead? 2 A 1 think 1 did spend some time looking at 3 what was considered the dangerous dose by the people 4 early in the century. And it looks like if it was 5 around - between -- at least for Kehoe and others, a 6 quarter of a milligram per kilo per day was considered 7 normal, between a quarter and a third of a milligram. 8 Q And would you agree, Mr. Reich, that to a 9 current doctor for either adults or pediatricians, 10 that amount of lead would be considered a large amount 11 of lead? 12 A I would. 13 Q And so over the century, the concept of 14 what's a small amount of lead is a concept of 15 decreasing quantities? 16 A No. No. 17 Q I didn't mean to have that backwards. 18 People are concerned today, wouldn't you agree. 19 Mr. Reich, with much smaller amounts of lead than they 20 were concerned about in 1910? 21 A I'm not so sure. After reading Dana's 22 translation of Tanquerel and his commentary at the end 23 of it, it sure seems like -24 THE WITNESS: Do you need to go ahead 25 and interrupt? . 195 1 uncertainty about the cerebral effects that I feel 2 that question was open, but it wasn't, "Well, this is 3 how much is safe for workers and therefore it's safe 4 for everybody else." I believe that Tanquerel and ~ 5 and Oliver really weren't sure. And so I'm not sure I 6 agree with your statement 7 What's notable about Tanquerel is the 8 fact that he did say that we are limited by our -- 9 what we know, and he basically acknowledged in 1848 -- 10 1838 that there was a lot more to be known. 11 Q Is medical technology, Mr. Reich, one of the 12 reasons why we're limited in what we know? Let me ask 13 that the other way around. 14 Isn't it true, Mr. Reich, that as 15 medical technology improves, we are able to know more 16 about the questions we were just talking about? 17 A I think it's a little different. I think 18 it's as medical knowledge expands that technology 19 follows due to where the questions lie. 20 Q With respect to lead and health, isn't it 21 true that as of 1920, there really was no capability 22 to even measure lead in blood? 23 A 1 think that's accurate. 24 Q And over the following 30,40,50 years, 25 isn't it true that the technology was developed and i j j 1 | 1 | 1 194 1 MS. FUHR: I think you pulled your mike 2 off, Tim. 3 (Brief discussion.) 4 A Anyway, to read Dana's commentary following 5 his translation ofTanquerel, he refers to minute 6 quantities, as does Oliver. So I do think there 7 was -- from 1948 on -- I'm sony, 1848 on, it wasn't 8 clear what "minute" meant. It was very small amounts, 9 and it might have been -- to Samuel Dana, it might 10 have been smaller than a quarter of a milligram per 11 kilo. 12 Q (BY MR. HARDY) But Oliver did try to 13 determine what amount of lead caused harm in workers 14 he was studying? 15 A He did -- he was very active in that. 16 Q And we can go back and look at those numbers 17 of what he found was the amount that caused harm? 18 A We can do that 19 Q And we could compare that to the numbers 20 that doctors today think causes harm? 21 A (Moving head up and down.) 22 Q And would you believe that the amount 23 doctors today say causes harm is a smaller amount than 24 Dr. Oliver thought caused harm? 25 A I don't know. There's enough -- enough 196 1 was improved? 2 A Principally in Baltimore. 3 Q And in the 1930s, Baltimore began measuring 4 blood leads of both adults and children; isn't that 5 right? 6 A Believe so. 7 Q But no other city was doing such routine 8 measurements at that time; isn't that right? 9 A Yeah. Isn't that odd? 10 Q The allegations against the defendants in 11 the Spring Branch lawsuit include claims that the Lead 12 Industries Association and the companies. National 13 Lead, Glidden, duPont, were part of a conspiracy. Are 14 you aware, Mr. Reich, of any evidence indicating that 15 the companies or Lead Industries Association 16 conspired? 17 A Would you define "conspiracy" for me? 18 Q How about this: I will ask the question 19 differently. We'll avoid the legal term. 20 A Okay. 21 Q Are you aware of any evidence that the 22 companies we've just named and the Lead Industries 23 Association in any way agreed what to put on the 24 labels of cans of lead paint? 25 A It would look to me that they agreed what I 1--m Worldwide Court Reporters, Inc. 1-800-745-1101 49 (Pages 193 to 196) 197 1 not to put on. 2 Q What documents would you point to to show 3 that agreement? 4 A I'd refer to the good Mr. Heckel once again 5 who indicated continued opposition to such labeling. 6 Q Was Mr. Heckel referring to the Lead 7 Industries Association? 8 A He was referring, I think, to anybody who 9 produced protective coatings in cans or barrels, but I 10 don't know that for a fact. 11 Q And we're going to dig out his reference -12 A Yes. 13 Q --and we'll see if he makes any 14 reference -- 15 A That's right. 16 Q -- to any agreement. 17 A Oh, yeah, agreement. Well, it seems to me 18 that if I can pick up a phone and call somebody in 19 almost every state and encourage them to oppose or 20 support certain legislation, that's some kind of 21 agreement. And that's what it sounds to me that 22 George B. Heckel was bragging about. 23 Q But is that an agreement among the 24 companies, whatever it is that Heckel is referring to, 25 with respect to what they decided to put on their cans 199 1 (Exhibit No. 183 marked.) 2 A And by the way, that does have the 3 bibliography that you asked for this morning. 4 Q (BY MR HARDY) Okay. That's the 5 bibliography you provided Mr. Leifer -- 6 A Yes. 7 Q -- back then? 8 A That's right. 9 Q Okay. We were, awhile ago, going through 10 what you would point to, Mr. Reich, as opposition by 11 lead companies or paint companies to regulation of 12 lead pigment, and I think we talked about the 1930s 13 and 1940s and we talked about Baltimore and the 14 1940s. I guess I didn't get to ask you what I 15 opposition you discovered in your research in the 16 1950s. 17 A In the 1950s, it was the --1 believe 1 I | 18 there's a reference there to opposition to the 19 Baltimore -- and I'm not sure if it was a city or 20 state regulation, but there was -- it was something in 21 1958. 22 Q And I believe you gave us a newspaper 1 23 article about what happened -- 1 24 A Yes. 25 Q -- in Baltimore -- 198 1 or not put on their cans? 2 A I guess it's not an agreement, but I 3 would -- the ornery side of me just wants to share 4 something here. 5 Q Please do. 6 A I know I'm using up the clock here. 7 MR. SULLIVAN: When you find it, would 8 you just identify what it is you're reading from 9 because -10 THE WITNESS: I will. 11 MR. SULLIVAN: -- we haven't marked 12 that as an exhibit yet. 13 A Well, I guess -- I can't find it. 14 Q (BY MR. HARDY) What are you looking for? 15 A Well, it was the fellow from the toy company 16 that said, "If we used a poisonous paint on our toys. 17 we sure as hell wouldn't tell anybody." 18 Q That was a toy company that said that? 19 A Yeah, uh-huh. 20 Q Not a lead company or a paint company? 21 A I think it was a toy company. 22 Q And you were referring, Mr. Reich, to what 23 we will mark as Exhibit 183 which is copyright 1991 by 24 you, "The Teacup and The Sponge." 25 A That's correct. 200 1 A That's right. 2 Q -in 19583 A That's right. 4 Q -- and that's what you're referring to? 5 A That's right. 6 Q And is it your understanding that what had 7 happened there is Baltimore had passed an ordinance 8 requiring the specific label on paint containing more 9 than 1 percent lead? 10 A I don't remember exactly what it was. 11 Q What do you remember about the nature ofthe 12 opposition ofsomebody to that ordinance? 13 A What I remember is that they opposed it. 14 Q Was that before it was enacted or after? 15 A Well, I think it was a continuing saga. It 16 was not a one-shot deal. 17 Q And when you say "they," who is "they"? 18 A I believe it was the Maryland Paint and 19 Varnish Association. 20 Q And do you recall why they opposed it? 21 A I don't. 22 Q Do you recall whether they were opposing the 23 use of warning language or whether, instead, they were 24 opposing the particular warning language that 25 Baltimore had chosen? 1 L... Worldwide Court Reporters, Inc. 1-800-745-1101 50 (Pages 197 to 200) 201 1 A 1 don't recall. 2 Q And do you know what happened after that 3 opposition was voiced? 4 A I don't. 5 Q And so as far as you know, the paint 6 industry agreed to start using the language in the 7 Baltimore ordinance? 8 A I don't know. 9 Q How about the 1960s? Are you aware of any 10 opposition by lead companies or paint companies to 11 regulation of lead paint or lead pigment in the 12 1960s? 13 A What 1 think was important in the 1960s was 14 the opposition and controversy over the Patterson 15 article. 16 Q Are you aware of any activities or actions 17 taken by any manufacturers of lead pigment or lead 18 paint with respect to the Patterson article? 19 A 1 believe that --1 believe that someone 20 from the Lead Industries Association wrote a letter to 21 the Archives of Environmental Health. 22 Q About the Patterson work? 23 A Yes. 24 Q Are you aware of any such correspondence 25 from National Lead or Glidden or duPont or . 203 1 Q And why would you have not been surprised 2 that they supported this Federal legislation? 3 A As Julian Chisolm said to me, when it's all 4 gone, they'll outlaw it. 5 Q Was -- and just for my benefit, elaborate on 6 what that means. 7 A Well, it appears that after--as of 1965, 8 the transition, at least for interior paints, to zinc 9 and titaniums was pretty much complete. So it's a 10 no-brainer. 11 Q What's your understanding, if any, of the 12 extent to which lead pigment was still used in 13 exterior paint, house paint, as of 1970? 14 A 1 think it was still common. 15 Q And is it your understanding that the 16 Federal legislation addressed both interior and 17 exterior? | 1 1 1 1 1 1 1 18 A I'm afraid I don't -- I think it did. 19 Q But you're not sure? 20 A I'm not sure. I remember that President 21 Bush's dog got lead poisoning, remember that, from 22 lead paint on the White House. 23 Q Probably exterior paint? 24 A Probably, but you never know, do you? 25 Q This affidavit that you prepared for the 1 202 1 Sherwin-Williams? 2 A I'm not. 3 Q What was the nature of Dr. Patterson's 4 findings? 5 A I would say that Dr. Patterson's contention 6 was that the estimates of what was -- what were normal 7 and safe levels ofexposure to lead were offpossibly 8 by an order ofmagnitude or more. 9 Q Did Dr. Patterson ever express any views one 10 way or the other with respect to lead pigment or lead 11 paint use, as far as you know? 12 A I don't recall. 13 Q How about the 1970s? Any opposition by the 14 Lead Industries Association or paint companies or lead 15 companies to regulation of lead paint or lead pigment 16 in the Seventies? 17 A I am not aware of any. I'm sure there was 18 some. 19 Q But you're not aware of any? 20 A I'm not. 21 Q Are you aware that the Lead Industries 22 Association, for example, supported passage ofthe 23 Federal Lead-Based Paint Poisoning Prevention Act in 24 the 1970s? 25 A I'm not surprised. 204 1 Jefferson County School District case? 2 A Yes. 3 Q Do you know anything about the buildings in 4 Jefferson County schools? 5 A Not a lot. 6 Q What do you know? 7 A Nothing. 8 Q So you don't know the age of those school 9 buildings? 10 A That's correct. 11 Q Do you know how many school buildings there 12 are in that district? 13 A No. 14 MR. SCOTT: We're not going to take a 15 deposition about Jefferson County. You can ask him 16 about the contents of the affidavit 17 MR. HARDY: I will be glad to. No 18 problem. 19 Q (BY MR. HARDY) Page 4 of that affidavit -20 and it's there ifyou'd like to look at it -- the next 21 to last -- yeah, the last full paragraph, the last 22 sentence which is just before footnote 20 -- 23 A Yes. 24 Q -- says: In 1955, Dutch Boy published an 25 advertisement in National Painters Magazine stating. Worldwide Court Reporters, Inc. 1-800-745-1101 51 (Pages 201 to 204) 205 1 quote, "Today Dutch Boy has the inside track with 2 painters on both exterior and interior jobs," end 3 quote. 4 A Yes. 5 Q Do you know ifthe paint advertised in that 6 advertisement contains lead? 7 A At this very minute, I don't. 8 Q I gather that you've collected that ad in 9 your -10 A Yes. 11 Q And we could get it and -- 12 A Yes. 13 Q -- we could look? 14 A That's right. 15 Q Are you aware, Mr. Reich, that the company 16 that made Dutch Boy, at least until 1976, National 17 Lead, over the years developed titanium pigment? 18 A 1 -- yes. And in fact, I think that they 19 had it and I think it was licensed to duPont for a 20 long time. 21 Q Are you aware, for example, that the 22 production capability ofNational Lead to make 23 titanium pigment for paint increased substantially 24 from 1920 through the 1950s? 25 A I've seen -- I've seen the data on the 207 I 1 over there and it does look as if they're saying white I 2 lead on both of them, but it does get a little 3 fuzzier. 4 Q The ads don't indicate which of the paints 5 have lead in them? 6 A That's right. 7 Q And you haven't gone behind the ads to look 8 at company catalogs to determine -- 9 A That's correct. 10 Q Are you aware from your research in 11 Mattiello or elsewhere that other companies who were 12 defendants here, like Glidden, also manufactured and 13 promoted titanium pigment? 14 A I was not aware of that 15 Q Are you aware that Glidden promoted in the 16 1920s nonlead zinc pigment paints? 17 A No. 18 Q Were you aware that in such promotions for 19 zinc noniead house paint Glidden put in the 20 advertisements, "Buy this zinc-containing paint to 21 avoid poisonous lead paint"? 22 A Hallelujah. 23 Q You weren't aware of those ads? 24 A I was not. 25 Q Nobody has ever shown them to you? 206 1 increased use of zinc and titanium pigments. 2 Q And in looking at National Lead 3 advertisements, have you seen that National Lead 4 promoted titanium pigment? 5 A No. 6 Q You haven't seen such ads? 7 A No. I've looked. 8 Q Where have you looked? 9 A Dutch Boy Quarterly, National Painters 10 Magazine, Dutch Boy Painter. 11 Q Have you looked in the paint industry trade 12 press to see whether National Lead promoted titanium 13 pigment to paint companies? 14 A I have not. 15 Q Have you looked at National Lead 16 advertisements after World War II for their interior 17 paint? 18 A Yes. 19 Q And do you know whether that interior paint 20 did or did not contain lead? 21 A I would say it's hard to tell, but it sure 22 looks like it's white lead. 23 Q Do the ads indicate that it's white lead? 24 A Well, it's funny. There's one ad that 25 shows interior paints over here and exterior paints 208 1 A (Moving head side to side.) 2 Q Are you aware that duPont had similar ads in 3 the 1920s? 4 A 1 am not. 5 Q Are you aware that Sherwin-Williams was one 6 ofthe primary manufacturers or promoters of lithopone 7 pigment paint in the 1920s? 8 A I'm not 9 Q Have you ever looked into the extent to 10 which these companies, Sherwin-Williams, Glidden, 11 National Lead, duPont, promoted after 1920 nonlead 12 paint? 13 A Yes. 14 Q What have you found? 15 A I found that Sherwin-Williams, for example, 16 I think it was in 1947, developed a -- I believe it 17 was the first water-based paint and was --1 think it 18 was promoting it actively. I think from the point of 19 view of the public, Mom and Dad still wanted a hard, 20 shiny surface on the woodwork. And so 1 think that my 21 conjecture is that despite the availability of some of 22 these water-based paints for walls and ceilings, that 23 the guy down at the paint store would still hand you 24 this lead-based paint for your woodwork. That's -- 25 this is conjecture, but it's where I think - I think Worldwide Court Reporters, Inc. 1-800-745-1101 52 (Pages 205 to 208) 209 1 it fills in the gap a little bit 2 Q And why would the guy down at the paint 3 store do that? 4 A Because he knew what was the best paint. 5 Q And to him, the best paint for woodwork was 6 lead paint? 7 A I think so. 8 Q And that's because it was durable? 9 A Well, there are a lot of qualities. 10 Q Washable? 11 A Go ahead. Keep going. You're doing great. 12 Q Is that fight? 13 A Yes. 14 Q Bright colors? 15 A (Moving head up and down.) 16 Q And as of 1947,1 think we're talking about, 17 was there any public health or governmental official 18 who was telling the guy down at the paint store or 19 anybody else, "You shouldn't be recommending lead 20 paint for woodwork"? 21 A Not that I'm aware of. 22 Q Just--just to clarify things, without 23 having the Jefferson County deposition, I guess it's 24 fair to say, Mr. Reich, that Mr. Herring and probably 25 Mr. Scott, too, have asked you to help them in a 211 1 THE REPORTER: 184. 2 MR HARDY: 184. 3 (Exhibit No. 184 marked.) 4 Q (BY MR. HARDY) This is a page from a letter 5 that either Mr. Scott or Mr. Herring sent us -- I 6 forget which ~ 7 A M-h'm. 8 Q -- listing the expertsthey were going to 9 use in this case, and that's the page with a couple of 10 paragraphs describing the subjects you would be 11 testifying about 12 A Okay. 13 Q This document. Exhibit 184, says you will 14 testify on the history of the lead paint industry, the 15 history of legislation in the United States and 16 various other countries restricting or banning the use 17 of lead-based paint, and knowledge of the dangers of 18 lead-based paint from a historical perspective. I 19 guess that's three things, lead paint industry, 20 legislation in the U.S. and elsewhere, medical 21 knowledge of dangers of lead-based paint. 22 Are there any other subjects on which 23 you've been asked to testify? 24 A Is this a trick question? 25 Q No. 1 want to know if there's something 210 1 second lawsuit in addition to Spring Branch, namely, 2 the Jefferson suit? 3 A That's correct. 4 Q Have they asked you to be involved in any 5 other lawsuits involving lead paint? 6 A Not specifically, no. 7 Q Have they told you they have a case on 8 behalf of the Houston School District? 9 A Yes. 10 Q Have they told youanything about the 11 Houston School District? 12 A Not much. 13 Q How about -14 A Nothing at all. Nothing at all. 15 Q And I'm not going to ask you -- have they 16 told you they have a case in Harris County? 17 A I don't believe so. 18 Q Okay. 19 A As a rule, you lawyers don't say much to 20 any -- about anything to anybody as far as I can 21 tell. 22 Q Let's go back to the very beginning, and 23 let me show you, Mr. Reich, what we will mark as 24 Exhibit -25 MR. HARDY: 189? 212 1 that I'm missing. 2 A I -- I don't think so. I'd be glad to tell 3 you about milk. 4 Q No. I'm just more interested in whether 5 there's something that I should be asking you 6 about -- 7 A I see. 8 Q - that -- because you might testify 9 about -- 10 A I see. 11 Q -- that I haven't touched on. And I think 12 those three things we've talked about today. 13 A Right 14 Q Have you reviewed any documents, minutes of 15 meetings of the National Paint, Varnish and Lacquer 16 Association? 17 A I don't believe I have. 18 Q Do you have any views on the role of the 19 National Paint, Varnish and Lacquer Association in 20 these things we've been discussing today? 21 A I believe there was a sense of solidarity, 22 at least in the mid Twenties, in opposing the ILO 23 situation and combating concerns about the lead 24 pigments. 25 Q And when you say "combating concern about Worldwide Court Reporters, Inc. 1-800-745-1101 53 (Pages 209 to 212) 213 1 the lead pigments," what sort of activities are you 2 referring to? 3 A I believe it's principally whatever it takes 4 to preserve the mandate of the association to make 5 sure that paint is distributed widely in the American 6 population. 7 Q And with respect to the history ofthe 8 lead paint industry, legislation, and the danger of 9 the lead-based paint, would it be fair for me to 10 believe that the opinions you have reached on those 11 subjects are expressed in "The Hour of Lead", "The 12 Teacup and The Sponge", and in your Brief History 13 document? 14 A I think so. 15 Q Are there any opinions you've reached on 16 those subjects which aren't in one of those three 17 documents? 18 A I --1 can't think of any right now. 19 Q Previously you talked about some research 20 you did on red lead. 21 A I'm sorry? 22 Q On red lead. 23 A Yes. 24 Q And you also talked about some research you 25 had done in the past year on Herbert Hoover. 215 1 MR. SMITH: I'm going to be quick. I 2 suspect Marie may have a few more. I have maybe ten 3 minutes. You want to just take a quick break? 4 MR. HARDY: You want to make a plane? 5 MR. SMITH: You and I are in the same 6 boat. Why don't we both take a - why don't we take a 7 very short break. 8 MR. HARDY: Take a break. 9 THE VIDEOGRAPHER: Off the record. 10 4:21 p.m. 11 (Recess from 4:21 p.m. to 4:27 p.m.) 12 THE VIDEOGRAPHER: On the record, 4:27. 13 EXAMINATION 14 BY MR. SMITH (4:27): 15 Q Mr. Reich, my name is Scott Smith. We met 16 earlier this morning, and I think I indicated to you 17 during a break that my client in this case is the | 18 Glidden Company. Before I told you that this morning | 19 when we were offthe record, did you know that Glidden | 20 was a party in this lawsuit? -. I 21 A 1 believe I did know that. | 22 Q And how did you know that? 23 A I think that came through in communication 24 with Mr. Scott or Mr. Herring. 25 Q Have you read the complaint in this case? 214 1 A Yes. 2 Q Are there any current subjects that you're 3 researching in connection with all of this? 4 A I'm trying to think. 5 I'm still interested in -- in zinc as 6 an alternative in... 7 Q From a paint technology standpoint? 8 A Yes. 9 Q And so you're collecting information on 10 that? 11 A M-h'm. 12 Q Any other areas that you're currently 13 researching? 14 A Not that I can think of. 15 Q Any other areas that Mr. Scott or 16 Mr. Herring have asked you to look into that you 17 haven't completed the research? 18 A No. 19 MR. HARDY: I will let my brethren ask 20 you some questions. 21 MR. SULLIVAN: Do you want to take a 22 quick break or do you want to just keep going? 23 MR. SMITH: We can go because I'm -24 MR. SCOTT: Are y'ali going to be a 25 little while? 216 1 A I haven't. 2 Q Have you seen the complaint in this case? 3 A I don't believe I have. 4 Q According to your CV -- and I raise this on 5 account of some comments you made in response to 6 Mr. Hardy's questioning about your kids in schools -- 7 you have two kids, if I'm guessing right, who are 22 8 or 23 and 18 or 19 about now? 9 A That's right. 10 Q Where does the 20 -- where does the older 11 child go to school? 12 A He just graduated from Carlton College. 13 Q In Minnesota. Good for him. How about the 14 younger child? 15 A He's at Amherst Regional High School. 16 Q Okay. And where did the older child go to 17 high school? 18 A Amherst Regional High School. 19 Q Same high school? 20 A Yes. 21 Q Do you know whether or not there's any 22 lead-based paint in Amherst Central High School? 23 A I do not know. 24 Q Did you make any inquiry to the school board 25 or the administration of that school to find out | Worldwide Court Reporters, Inc. 1-800-745-1101 54 (Pages 213 to 216) 217 1 whether or not there's any lead-based paint in that 2 school? 3 A 1 did not. 4 Q Have you ever recommended to the officials 5 ofAmherst Central High School that they needed to 6 make an investigation or take other steps to ascertain 7 whether or not there is lead-based paint in that 8 school? 9 A 1 did not. 10 Q Mr. Hardy asked you a question and in his 11 question, he mentioned the fact -- this is later in 12 the afternoon -- that my client, Glidden, had, in some 13 promotions in the 1920s, advertised certain of its 14 paints as lead free. And I think your answer to that 15 was "hallelujah,'' if I caught what you said correctly. 16 Do you recall that testimony, that question and your 17 answer? 18 A Ido. 19 Q Why did you say that? 20 A Because I was gratified that some people 21 were acknowledging that it was important to give 22 consumers a choice about nonpoisonous lead-free 23 paints. 24 Q Wouldn't that suggest to you -- let's just 25 hang on for a second here until the commotion goes 219 1 A I don't know anything about it 2 Q What do you know regarding Glidden's 3 promotion of Iithopone paints? 4 A I don't know anything about it. 5 Q What do you know regarding Glidden's 6 promotion of combination Iithopone and zinc pigment 7 paints? 8 A 1 don't know anything. 9 Q But what was important to you, ifI 10 understand your earlier testimony relating to the 1924 11 promotion that Glidden did do, was that it was 12 important that consumers have a choice, correct? 13 A M-h'm. Yes. I 14 Q Have you reviewed any documents, Mr. Reich, 15 that would show an agreement between Glidden and any 16 other entity to commit any illegal act with regard to 17 lead paint or lead pig -- lead pigment? Excuse me. 18 A 1 have not. 19 Q Are you aware of any documents, sir, that 20 would show any sort of agreement between Glidden and 21 any other entity to commit a tortious act of some sort 22 with regard to lead paint or lead pigment? 23 A I have not. 1 24 Q Well, I have to come back to your milk work 1 25 just for a second. You mentioned before that the work | 218 1 away. 2 You weren't aware of that promotion, I 3 take it, until today? 4 A That's correct. 5 Q And wouldn't that promotion illustrate to 6 you, sir, that ifthere were --1 underscore the word 7 "if' -- some sort of hypothetical common plan or 8 common agreement to hide the hazards or the alleged 9 hazards of lead-based paint, my client, Glidden, 10 wasn't part ofthat? 11 MR. SCOTT: Object to the form. 12 A I wouldn't agree with that 13 Q (BY MR. SMITH) Why not? 14 A Because what comes to mind is the response 15 from the National Bureau of Standards to inquiries. 16 and it does appear consistently that at least from 17 the -- from the Bureau of Standards and. I'm sure, 18 from the local paint fellow that they would recommend 19 white -- white lead or leaded paints; and then at the 20 very end, they'd say, "You could also use iithopone. 21 but it isn't quite as good." And so I believe that 22 for the consumer, there was an ambivalent message that 23 came out. 24 Q What do you know regarding Glidden's 25 promotion of titanium dioxide paints? 22 I 1 you did was in connection with some sort of 1 2 industry-wide toxicological issue pertaining to milk, 3 if 1 understand what you said. What was that? 4 A Well, can you be more specific? 5 Q Sure, sure. I mean, here's the context 6 which it came - that my notes tell me, and if I've 7 heard it wrong, please tell me. 8 Mr. Hardy asked you if you were 9 involved in any industry-wide toxicological review 10 other than lead, and you said milk. And I took it 11 from that, perhaps incorrectly, that there was 12 something of a toxicological nature - 13 A Yes. 14 Q -- related to your -- 15 A Yes. 16 Q -- work on the milk product. 17 A I see. In 1848, which was the time of sort 18 ofthe second wave of concern about food and drug 19 adulterants and toxicity, a book was published in the 20 United States that was -- it really anticipated 21 Sinclair Lewis' Jungle by 60 years in what it revealed 22 about how the milk supply was produced. And the 23 efforts to improve the quality ofthe milk supply in 24 1848 linked with the introduction of pasteurization 25 early in the Twentieth Century represent the way in Worldwide Court Reporters, Inc. 1-800-745-1101 55 (Pages 217 to 220) 221 1 which an industry dealt with hazards, dangers from its 2 product. 3 Q Does that complete your answer? 4 A I think so. 5 Q Okay. What I'm interested in is this: Was 6 there a particular toxin or substance in the milk 7 supply that you were concerned about that you did your 8 research on? 9 A I guess the answer is no. 10 Q Have you reviewed any documents produced in 11 the Santiago case which purport to be documents 12 produced by my client, the Glidden Company? 13 MR.SCOTT: Don't14 A No. .15 THE WITNESS: Don't answer that? 16 MR. SCOTT: Don't answer that. 17 MR. SMITH: I believe those are all the 18 questions I have. Thank you. 19 THE VIDEOGRAPHER: Off the record, 20 4:37, ending Tape 4. 21 (Recess from 4:37 p.m. to 4:39 p.m.) 22 THE VIDEOGRAPHER: On the record, 4:39. 23 EXAMINATION 24 BY MR. SULLIVAN (4:39): 25 Q My name is Mark Sullivan, and I represent 223 1 Q Have you looked at trade associations 2 generally, then, for this period, from the Twenties up 3 through the end ofthe second World War? 4 A Yes. 5 Q And ofthis material that you've talked 6 about, a 10 or 12 feet of material, is the information 7 that you've developed on trade associations in that 8 material? 9 A It is. 10 Q And how much ofthat 10 or 12 feet of 11 material would you estimate represents your work on 12 trade associations? 13 A 5 or 6 inches, maybe. 14 Q And is that 5 or 6 inches devoted to the 15 trade associations involved with the lead industry or 16 a broader based -- 17 A Mostly the lead industry. 18 Q Okay. And ofthat 5 or 6 inches, would 19 almost all of it be related to the trade associations 20 involved in the lead industry? 21 A Maybe half. 22 Q Approximately how many -- now, you've 23 indicated you've reviewed documents and minutes of the 24 LIA; is that correct? 25 A Small portions. I have not looked at a i j i I 222 . 1 the Lead Industries Association. 2 Have you done any historical work in 3 regard to trade associations? 4 A A little bit. 5 Q And what is the work that you have done in 6 regard to trade associations? 7 A The work has been mostly in the area of the 8 revitalization of trade associations led by Herbert 9 Hoover. 10 Q And what have you learned in your research? 11 MR. SCOTT: Objection, form. 12 A I believe that he -- his work and his 13 presence in the Department of Commerce gave trade 14 associations more influence in the marketplace. 15 Q (BY MR. SULLIVAN) And this would have been 16 at what period of time, then? 17 A Starting in 1921. 18 Q And going through when, approximately? 19 A Through the depression, anyway, possibly up 20 until the Forties. 21 Q And what type ofresearch have you done in 22 regard to trade associations? 23 A I've looked - read works about Hoover's 24 activities as Secretaiy of Commerce, some archival 25 material from the National Archives. 224 1 complete dossier by any means. 2 Q Well, you're going to where 1 was headed. 3 and that is: Approximately how many pages of 4 documents, if you could estimate that, or by inches, 5 ofmaterial have you reviewed that relates to LIA's 6 minutes or documents? 7 A 15 or 20, maybe. 8 Q 15 to 20 pages? 9 A Yes. 10 Q And that's not a very large amount. Do 11 you -- can you tell me what those 15 to 20 pages 12 comprise in the way of LIA's minutes or records? 13 A I believe that it included some 14 communication about Manfred Bowditch coming up to -- 15 you know, dealing with the proposed legislation in 16 Massachusetts. 17 Q That would be in the 1930s? 18 A Yeah. The summaries of some ofthe work 19 done by Dr. Aub, some accounts of reports of lead 20 poisoning, or purported lead poisoning. That's about 21 it. It was not a lot of stuff. 22 Q Okay. And besides the material on Manfred 23 Bowditch in the 1930s legislation. Dr. Aub's summaries 24 that you referred to, what time period does that 25 entail? '---3S88 Worldwide Court Reporters, Inc. 1-800-745-1101 56 (Pages 221 to 224) 225 1 A I'm not exactly --1 think it was into the 2 late Thirties. 1 don't recall. 3 Q Are you aware that LIA was created in 1928? 4 A Yes. 5 Q Okay. And the accounts or the reports of 6 lead poisoning, what periods of time would those 7 cover? 8 A From these minutes? 9 Q Yes. 10 A I really think it's principally in the 11 Thirties. It's -- it's not a large holding. 12 Q Would it be fair to say, then, that you have 13 not looked at LIA's records as it relates to LIA's 14 activities in the 1940s? 15 A I think that's accurate. 16 Q And also in the 1950s, you've not looked at 17 those? 18 A That's correct. 19 Q And in the 1960s, you've not looked at 20 those? 21 A That's correct. 22 Q And in the 1970s, you've not looked at 23 those? 24 A That's correct. 25 Q And anything else -- you haven't seen 227 1 A I'm not sure it manifested itself in 2 behavior or activities that the LIA did or didn't do. 3 Q Okay. How did it manifest itself? 4 A It may have manifested itself in lower 5 levels of concern if black children were being 6 exposed. 7 Q You said it "may" have manifested itself. 8 A That's right. 9 Q Do you have any evidence from die documents 10 you've reviewed in connection with your research that 11 it did manifest itself? 12 A That it did? 13 Q Yes. 14 A The only evidence I have -- and it's not 15 directly related to the Lead Industries Association -- 1 16 relates to milk. As Dr. Aub pointed out, lead follows 17 calcium to the bones where it's harmless. So you give 18 kids a lot of milk, they're going to have some 19 protection. 20 In an address to the International. 21 Dairy Conference in 1926, Herbert Hoover said that 22 milk was going to be the saviour of the white race. 23 which suggests that white kids had an advantage. 24 Q Because they drank more milk? 25 A Yes. 226 1 anything else on LIA; is that correct? 2 A That's correct. 3 Q Okay. Do you intend to render any opinions 4 as to whether anyone in the LIA was a racist? 5 A I hadn't intended to. 6 Q Okay. Do you have an opinion as to whether 7 anybody in the LIA was a racist? 8 A I probably do have an opinion about that. 9 Q And what is your opinion? 10 A My opinion is that that was a factor in some 11 ways in dealing with the problem. 12 Q Is that your answer? 13 A I think so. 14 Q And what is the problem you just referenced? 15 A There -- there may have been -- there appear 16 to have been concern -- not -- there appear to have 17 been awareness -- there appears to have been awareness 18 that blacks were more vulnerable to the effects of 19 lead. 20 Q And that's the problem? 21 A That's -- I would say that was probably part 22 of the problem. 23 Q Okay. And how did that play in anything 24 that you say that the LIA did or did not do, what the 25 LIA- 228 1 Q Any other indication or studies you have 2 that black children during -- what period oftime? 3 We're now talking the Twenties and Thirties -- drank 4 less milk than white children? 5 A There's some pretty solid evidence also 6 from Johns Hopkins University that blacks are 7 about 70 percent lactose intolerant and don't drink 8 milk. 9 Q And do you have any indication that any of 10 this was known to the L -- anybody at the LIA? 11 A I have no documents to show that. 12 Q Okay. And do you have any indication that 13 this affected in any way what LIA did in regard to its 14 promotion or lobbying in regard to lead paint? 15 A No. 16 Q Do you intend to render an opinion or is it 17 your opinion that Feint Wormser was a racist? 18 A I have no idea. ' 19 MR. SCOTT: I'm going to object to the 20 form of the question. 21 Q (BY MR. SULLIVAN) Okay. Do you have any 22 opinion or do you intend to render any opinion that 23 Manfred Bowditch was a racist? 24 MR. SCOTT: Objection, form. 25 You can go ahead and answer. 1 I | I *---3BSE Worldwide Court Reporters, Inc. 1-800-745-1101 57 (Pages 225 to 228) 229 1 A I don't have any idea. 2 Q (BY MR. SULLIVAN) Have you looked at any of 3 LIA's documents as it relates to lead? 4 A No, I haven't. 5 Q When you were growing up, do you know ifyou 6 grew up in a house that had lead paint in it, when you 7 were growing up as a child? 8 A We had wood walls in our house. 9 Q They were not painted? 10 A They were not painted. 11 Q How about the exterior ofyour house? 12 A Asphalt shingles. 13 Q And you indicated there was -- was it a 14 cabin you painted with lead paint? 15 A Well, it was some radiators. 16 Q You painted some radiators? 17 A Radiators that -- radiators. 18 Q And this was in Maine, correct? 19 A Yes. 20 Q And that was at your home or a cabin in 21 Maine? 22 A It was in a related building. 23 Q And your children, as they grew up, did they 24 grow up in houses or in a house that had lead-based 25 paint, as best you know? 231 1 to the FTC documents. How did those references wind 2 up in there? 3 A I think I saw one or two pages that were 4 passed along to me. 5 Q And was that from your original research or 6 something that was given to you by -- 7 A Something that was given to me. 8 Q By the EDF? 9 A No. 10 Q By whom? | 1 11 A At this point. I'm not sure anymore. 12 Q The documents that you have concerning LIA, 13 were they given to you by Neil Leifer? 14 A They were. 15 Q Did you acquire them from any other source 16 other than Neil Leifer? 17 A It's possible that the New York people might 18 have sent something along. 19 Q Did you have any choice in selecting the LIA 20 documents that you have reviewed? 21 A I did not. 22 Q In other words, whatever the lawyers gave 23 you? 24 . A Yes. 25 Q What is the Paint Recovery Board? 1 | 1 I 230 1 A To the best of my knowledge, they did not. 2 Q Have you ever had your children tested for 3 presence of lead? 4 A I have not. 5 Q Have you ever been tested for the presence 6 of lead? 7 A I have not. . 8 Q Are you aware from your review of LIA's 9 documents or any documents as to whether LIA engaged 10 in any illegal activity in connection with its 11 lobbying activities in any state or with any federal 12 government -- with the Federal government? 13 A I'm not aware ofthat. 14 Q Are you aware from your research as to 15 whether LIA ever engaged in any illegal or improper 16 or -- let's say illegal activity in regard to its 17 promotionof lead pigments or lead paints? 18 A I'd sure like to see those FTC documents, 19 but thafs all I know. There's something out there 20 that happened with the FTC, but I... 21 Q Have you ever looked at the -- 22 A I have not. 23 Q -- FTC documents? 24 A I have not. 25 Q There are references in "The Hour of Lead" 232 1 A It looks as if it was established under the 2 NRA to negotiate these pricing schemes to keep people 3 happy in the Depression. 4 Q That was to create some minimum amount of 5 price so you would be able to create a market for the 6 goods; is that correct? 7 A That's what they did with milk. So that's 8 probably what they did, was add it. 9 Q Okay. And do you know if LIA participated 10 with the government in that activity? 11 A I don't. 12 Q When you said you attempted to have your -13 "The Teacup and The Sponge" published in what I 14 believe you called the general press? 15 A Trade press, I think it's called. 16 Q Trade press. I'm sorry. What--what do 17 you mean by "trade press"? 18 A I mean publishers that published books that 19 you get in a bookstore as opposed to an academic 20 press. 21 Q Okay. This is not a trade like a specific 22 painters journal or a trade -- 23 A No. Trade means what you get at the 24 Barnes & Noble. ! 25 Q Okay. And that proved unsuccessful? I Worldwide Court Reporters, Inc. 1-800-745-1101 58 (Pages 229 to 232) 233 1 A Yes, it did. 2 Q Were you told why? 3 A I don't think it was written very well. 4 That's why. 5 Q Oh, okay. Are you aware from anything 6 you've reviewed regarding LIA as -- or have you seen 7 anything in what you have reviewed regarding LIA and 8 its activities that it at any time engaged in any 9 tortious activity with any other paint company or 10 pigment company? 11 A I don't believe so. 12 Q Are you aware of any intentional 13 misstatement that was ever made by LIA regarding lead 14 pigment or lead paint? 15 A I think some ofthe things that Wormser said 16 were a little questionable sometimes. 17 Q All right. Do you -- are you aware as to 18 whether when he said them he believed them to be true? 19 A I think he did believe them to be true. 20 Q And would it be fair to say that there has 21 been a public debate throughout this century, 22 throughout the entire 1900s, as to the health effects 23 of lead pigments and lead paint? 24 A No. 25 Q There has not been a public debate? 235 1 A I don't believe there are. Thafsnotto 2 say there won't be, though, right? 3 Q Well, this is your chance to speak -- 4 A I see. 5 Q -- because this is the only chance we get to 6 talk to you 7 A Right. 8 Q -- before trial comes up. So ifyou have 9 something, we're entitled to find out now and not as a 10 surprise. 11 A Right. I don't think there are. 12 MR. SULLIVAN: Okay. Thank you very 13 much. 14 MR. SCOTT: Anybody want a second bite, 15 or are we through? 16 EXAMINATION 17 BY MS. FUHR (5:00): 18 Q With regard to duPont -19 MR. HARDY: She still has first bite. 20 MR. SCOTT: Sony. I forgot about 21 duPont. 1 | I 1 1 1 1 1 1 1 1 22 MR. HARDY: We've had so many bites 23 that you forgot duPont. 24 Q (BY MS. FUHR) With regard to duPont, do you 25 have any -- 234 1 A No. 2 Q And why do you say that? 3 A I say that because I believe the mineral 4 pigments were understood to be taboo for public use 5 early in the Twentieth Century, that there was a 6 flare-up ofchildhood lead poisoning soon after the 7 lead pigments made their way into interiors, and that 8 as I stated earlier, after 1926 until 1965, there was 9 essentially no debate about it. 10 Q After 1965? I'm sorry, 19 -- 11 A 19 -- well, from '26 to '65 was pretty 12 quiet. 13 Q But to the extent that there was material, 14 there were articles written and material in the 15 journals that were published either for the public 16 health profession or for the medical profession, is 17 that correct, regarding lead pigment and lead paint's 18 health issues? 19 A There were -- there were some articles that 20 were published, yes, but I'm not sure that there was a 21 debate. 22 Q Okay. Are there any other opinions or views 23 that we have not addressed today that you intend to 24 express if you're asked to testify at trial on the 25 issues that have been outlined today? 236 1 MS. FUHR: Whoops. I'm sorry. 2 Q (BY MS. FUHR) With regard to duPont, do you 3 have any particular information concerning duPont with 4 regard to whether it ever engaged in any tortious 5 activity with regard to lead paint or pigment? 6 A I don't. 7 Q Okay. Have you got any information or 8 looked at any documentation that would indicate that 1 9 duPont ever agreed to commit any sort of illegal 1 10 action with regard to lead paint or pigment? 11 A I don't. 12 Q Do you have any information as to whether 13 duPont ever agreed with regard to any other paint or 14 pigment manufacturer on any issue? 15 A Agreed? 16 Q Made any - entered into any agreement with 17 any -- 18 A Well, yeah, I do have some -- and I haven't 19 looked at it in a while, but I believe duPont had the 20 rights to the titanox. 21 Q Okay. But that's the only thing you're 22 aware ofwith regard to duPont? 23 A Yes. 24 MS. FUHR: Okay. I don't have any 25 other questions. Worldwide Court Reporters, Inc. 1-800-745-1101 59 (Pages 233 to 236) 237 1 THE WITNESS: I just want to tell you. 2 though, that in doing this research, I found some old 3 documents at the University ofMassachusetts Library 4 where duPont was advertising its dynamite; and there 5 was one, "Farming with Dynamite," that really merits 6 looking at it. It's the funniest thing. 7 MS. FUHR: I'll keep that in mind. 8 MR. HARDY: One follow-up. 9 MR. SCOTT: Okay. 10 EXAMINATION 11 BY MR. HARDY (5:02): 12 Q In response to Mr. Sullivan, you indicated 13 Mr. Reich, that the 30 or 40 pages of LIA minutes you 14 have reviewed -15 A No, I didn't say that. I think it was more 16 like 15 to 20 pages. 17 MR. SULLIVAN: 15 - 15 to 20. 18 Q (BY MR. HARDY) You have reviewed about 15 19 or 20 pages ofLIA documents? 20 A Yeah. I'd err on the lower side. It's been 21 a long time since I've looked at this, but I do think 22 we're talking maybe a dozen or 15. 23 Q And those dozen or 15 were selected and 24 collected and sent to you by Mr. Leifer? 25 A Yes. 239 | 1 questions. 2 MR. SULLIVAN: I have just a couple 1 1 3 questions. 4 MR. SCOTT; You need the mike, 5 probably. 6 MR. SULLIVAN: Yes, thank you. 7 EXAMINATION 8 BY MR. SULLIVAN (5:04): 9 Q Are you aware of any activity by the LIA in 10 Texas? | 11 A I am not. | 12 Q Are you aware of any activity that the LIA | 13 took in regard to any properties or any entities in 14 Houston, Houston, Texas? 1 1 15 A I am not. 16 MR. SULLIVAN: I had one other 1 1 17 brilliant question, but it slipped my mind so I'm 18 going to let it go. Thank you very much. 19 THE WITNESS: Okay. 20 MR. SCOTT: Anybody else? 21 MR. SMITH: No. I just want to say for I 1 1 I 22 the record that -- 23 MS. FUHR: You want the mike? 24 MR. SMITH: No, that's all right. I 25 talk loud. 238 1 Q Did Mr. Leifer send you any other collection 2 of documents on lead or lead paint? 3 A It was just those -- some ofthe material 4. from Santiago, as we discussed earlier. 5 Q I gather Mr. Leifer also sent you documents 6 from the Federal Trade Commission proceeding on the 7 lead pigment companies? 8 A It was really -- I think what I saw there 9 was someone else's digest of it It wasn't the actual 10 documents. 11 Q Exhibit 183 includes, as you've indicated, a 12 lead paint bibliography. 13 A That's correct. 14 Q Who compiled that bibliography? 15 A I did. 16 Q Therefore, that bibliography is different 17 from the LIA documents in the sense that you collected 18 it? 19 A I think the answer to your question is yes. 20 Q Did anyone give you a collection ofmedical 21 articles on lead? 22 A I think somebody did years ago send me 23 something that they had kept, but I don't think it was 24 of consequence to this case or these cases. 25 MR. HARDY: I have no further 240 1 I mean, to the extent that we need to 2 revisit Mr. Reich with -- in connection with this 3 October 22 meeting that we have intentionally not gone 4 into the substance ofabout the concerns of privileged 5 material, we reserve that right. 6 MR. SCOTT: And by my watch, you have 7 seven minutes to do that. 8 MR. SMITH: I understand. 9 MR. SCOTT: Okay. 10 THE VIDEOGRAPHER: Off the record, 11 5:05, ending the deposition with Tape 5 -- 12 MR. SCOTT: Wait Before we go off the 13 record, do we agree on that, that that's the amount of 14 time we have left just so we don't have to argue about 15 it later. I was looking at my watch. Is that right? 16 MR. SULLIVAN: Well, within a minute of 17 one another so that -- 18 THE WITNESS: What's happening, now? 19 MR. SCOTT: Nothing. We're just 20 agreeing how much time they have left. 21 THE VIDEOGRAPHER: Off the record, I 22 5:06, ending the deposition with Tape 5. I 23 (Proceedings concluded at 5:06 p.m.) I 24 25 Worldwide Court Reporters, Inc. 1-800-745-1101 60 (Pages 237 to 240) 241 1 CHANGES AND SIGNATURE TO THE DEPOSITION OF PETER REICH 2 JANUARY 28,2002 3 PAGE LINE CHANGE REASON 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 243 1 NO. 2000-31175 2 SPRING BRANCH INDEPENDENT ) IN THE DISTRICT COURT OF SCHOOL DISTRICT, ) 3 Plaintiff, ) 4 VS. ) ) ) 5 LEAD INDUSTRIES ) ASSOCIATION, INC., ) 6 AMERICAN CYANAMID CO., ) ATLANTIC RICHFIELD CO., ) HARRIS COUNTY, T E X A S 7 E.l. duPont de NEMOURS & ) CO., THE O'BRIEN ) CORPORATION, THE GLIDDEN ) CO., SCM CHEMICALS, NL ) 9 INDUSTRIES, INC., and THE ) SHERWIN-WILLIAMS COMPANY,) 10 Defendants. ) 11TH JUDICIAL DISTRICT 11 REPORTER'S CERTIFICATION DEPOSITION OF PETER REICH 12 JANUARY 28,2002 13 I, Gayle Shaffer Patterson, Certified Shorthand 14 Reporter in and for the State ofTexas, hereby certify 15 to the following: 16 That the witness, PETER REICH, was duly sworn by 17 the officer and that the transcript ofthe oral 18 deposition is a true record ofthe testimony given by 19 the witness: 20 That the deposition transcript was submitted on 21 to the witness or to the 22 attorney for the witness for examination, signature 23 and return to me by 24 That the amount of time used by each party at the 25 deposition is as follows: 242 1 I, PETER REICH, have read the foregoing 2 deposition and hereby affix my signature that same is 3 true and correct, except as noted above. 4 5 6 PETER REICH 7 8 THE STATE OF ) 9 COUNTY OF ) 10 11 Before me, , on this day personally appeared PETER REICH, known to me (or 12 proved to me under oath or through ) (description of identity 13 card or other document) to be the person whose name is subscribed to the foregoing instrument and 14 acknowledged to me that they executed the same for the purposes and consideration therein expressed. 15 Given under my hand and seal ofoffice this 16 day of , 17 18 NOTARY PUBLIC IN AND FOR 19 THE STATE OF 20 21 22 23 24 My Commission Expires: 25 244 1 Mr. Timothy S. Hardy - 5 hrs: 24 min 2 Mr. Mark L. Sullivan - 0 hrs: 22 min 3 Ms. Joy C. Fuhr - 0 hrs: 2 min 4 Mr. Scott A. Smith - 0 hrs: 13 min 5 Mr. Ronald Scott - 0 hrs: 0 min 6 That pursuant to information given to the 7 deposition officer at the time said testimony was 8 taken, the following includes counsel for all parties 9 ofrecord: 10 Mr. Ronald Scott, Attorney for the 11 Plaintiff; 12 Mr. Timothy S. Hardy, Attorney for Defendant 13 NL Industries, Inc.; 14 Mr. Mark L. Sullivan, Attorney for Defendant 15 Lead Industries Association, Inc.; 16 Ms. Joy C. Fuhr, Attorney for Defendant 17 E.l. duPont de Nemours & Co.; 18 Mr. Scott A. Smith, Attorney for Defendants 19 SCM Chemicals and The Glidden Company; 20 I further certify that I am neither counsel for, 21 related to, nor employed by any of the parties or 22 attorneys in the action in which this proceeding was 23 taken, and further that I am not financially or 24 otherwise interested in the outcome of the action. 25 World de Court Reporters, Inc. 1-800-745-1101 61 (Pages 241 to 244) 245 1 Further certification requirements pursuant to 2 Rule 203 of TRCP will be certified to after they have 3 occurred. 4 Certified to by me this 1 st day of February, 5 2002. 6 7 GAYLE SHAFFER PATTERSON, Texas CSR 3355 8 Expiration Date: 12/31/03 WORLDWIDE COURT REPORTERS, INC. 9 3000 Weslayan, Suite 235 Houston, Texas 77027 10 (713)572-2000 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 246 1 FURTHER CERTIFICATION UNDER RULE 203 TRCP 2 The original deposition was/was not returned to 3 the deposition officer on ; 4 If returned, the attached Changes and Signature 5 page contains any changes and the reasons therefor; 6 If returned, the original deposition was 7 delivered to Mr. Timothy S. Hardy, Attorney for 8 Defendant NL Industries, Inc., Custodial Attorney; 9 That $ is the deposition officer's 10 charges to , 11 Bar No. , Attorney for Defendant 12 NL Industries, Inc., for preparing the original 13 deposition transcript and any copies ofexhibits; 14 That the deposition was delivered in accordance 15 with Rule 203.3, and that a copy ofthis certificate 16 was served on all parties shown herein and filed with 17 the Clerk. 18 Certified to by me this day of , 19 2002. 20 21 GAYLE SHAFFER PATTERSON, Texas CSR 3355 22 Expiration Date: 12/31/03 WORLDWIDE COURT REPORTERS, INC. 23 3000 Weslayan, Suite 235 Houston, Texas 77027 24 (713)572-2000 25 Worldwide Court Reporters, Inc. 1-800-745-1101 j 62 (Pages 245 to 246) Page 1 .......... A-------------- able 97:16 148:25 150:17 172:14 180:12 195:15 232:5 above 113:3 182:25 242:3 above-styled 1:17 absolute 122:7,8 Absolutely 108:6 absorbed 135:15 academic 139:5 140:4 169:16 170:25 172:22 232:19 Academy 71:22 153:11 153:19 156:8 183:21 184:11 189:18 acceptable 184:2,6,14 185:3,15 188:12,14 accepted 54:10 access 73:19 102:24 103:2 accompanied 6:17 accordance 246:14 according 103:12 138:14,17 184:10 216:4 account 216:5 accounts 26:1 161:17 224:19 225:5 Accumulated 19:25 accuracy 176:11 accurate 195:23 225:15 achievable 185:3,18 acknowledged 195:9 242:14 acknowledging 217:21 acknowledgment 126:13 138:24 174:3 Acme 78:21 acquaint 18:17 acquire 231:15 act 72:15 77:14 162:25 202:23 219:16,21 action 4:7 236:10 244:22,24 actions 201:16 active 113:18 151:20 151:22 152:14 194:15 actively 208:18 activities 22:7 92:5 201:16 213:1 222:24 225:14 227:2 230:11 233:8 activity 191:23 230:10 230:16 232:10 233:9 236:5 239:9,12 actual 238:9 actually 27:5 71:24 127:16 141:8,14 142:19,21 149:8 156:2 ad 205:8 206:24 adamant 189:12 add 13:10 56:11 232:8 addition 210:1 address 181:24 182:11 227:20 addressed 136:1 176:23 181:7 183:13 184:2 188:20,20 203:16 234:23 addressing 179:20 183:6 adherence 190:17,17 administration 37:5 93:11 129:6,12 216:25 adopt 168:9 ads 41:24 206:6,23 207:4,7,23 208:2 adult 181:17 adulterant 162:13,14 adulterants 220:19 adulterated 59:5 161:10 adulteration 117:21,22 160:24 161:1 adults 189:20 193:9 196:4 advanced 174:15 advantage 227:23 adverse 182:8,24 183:1 183:8 advertised 205:5 217:13 advertisement 204:25 205:6 advertisements 40:16 41:2,5 206:3,16 207:20 advertising 237:4 advisability 134:25 advocacy 127:5 advocate 180:1 advocated 179:20,24 advocates 79:11,14 advocating 121:9 177:19 180:15,17,18 AEC 65:25 AECLP 66:2 affected 228:13 affidavit 4:7 30:6,9 60:3,5,11 129:4 154:13,21,25 155:13 156:12 203:25 204:16 204:19 affidavits 61:11 affiliation 65:23 affirm 155:8 affirmative 149:14 affix 242:2 afield 107:23 114:1 afraid 107:2 203:18 after 15:14 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