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TRANSCRIPT OF PROCEEDINGS 1 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - LAW DIVISION EVA MULCAHY, Individually and as Special Administrator of the Estate of JOHN MULCAHY, Decease No. 08 L 6223 Defendants. The Court met purs BEFORE: HONORABLE CLARE E. McWILLIAMS. AUGUST 26, 2009 3 PRESENT (Continued): gunty & McCarthy, (150 South Wacker Drive, Suite 1025, Chicago, Illinois 60606, 1-312-541-0022), by: MS. SUSAN GUNTY, and MR. JAMES P. KASPER, -andK&L GATES LLP, (Henry W. Oliver Building, 535 Smithfield Street, Pittsburgh, Pennsylvania 15222-2312, 14 1-412-355-6493), by: 15 MR. JEFFREY S. KING, and 16 MR. MICHAEL J. R. SCHALK, 17 appeared on behalf of Defendant Crane 18 Company. 19 20 21 22 23 REPORTED BY: VICTORIA C. CHRISTIANSEN, No. 84-3192 24 KRISTIN C. BRAJKOVICH, No. 84-3810. 2 1 APPEARANCES: 2 3 SIMON EDDINS & GREENSTONE, 4 (3232 McKinney Avenue, Suite 610, 5 Dallas, Texas 75204, 6 1-214-276-7680), by: 7 MS. JESSICA DEAN, and 8 MS. LAURA M. CABUTTO, 9 appeared on behalf of the Plaintiff; 10 11 WHEELER TRIGG O'DONNELL LLP, 12 (1801 California Street, Suite 3600, 13 Denver, Colorado 80202-2617, 14 1-303-244-1800), by: 15 MR. JOHN M. FITZPATRICK, and 16 MR. LaMAR F. JOST, 17 appeared on behalf of Defendant 18 General Electric; 19 20 21 22 23 24 10:12:14 10:12:14 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:16 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 4 1 (WHEREUPON, the following 2 proceedings were had in chambers, 3 outside the presence and hearing of 4 the Jury, to wit:) 5 THE COURT: All right. Let's get started. I 6 have two of Crane Co.'s motions in limine that a 7 request was made that I hear before the 8 commencement of opening statements in this case. 9 Mr. Schalk, are you arguing these? 10 MR. SCHALK: Yes, your Honor. 11 THE COURT: All right. Let me hear -12 Ms. Dean, are you arguing? 13 MS. DEAN: Yes, your Honor. 14 THE COURT: As far as the catalogs and other 15 products and entities not at issue in this case, 16 what is your intention as far as plaintiff's case 17 is concerned about using these documents? 18 MS. DEAN: Products that we believe are not at 19 issue, we do not intend to use. There are some 20 manuals that we have to redact out portions that 21 are not relevant. What I think is at the heart of 22 it is a dispute about what is at issue. We believe 23 that -24 THE COURT: I don't want to argue what is at TRANSCRIPT OF PROCEEDINGS 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:17 10:12:18 10:12:18 10:12:18 10:12:18 10:12:18 10:12:18 10:12:18 10:12:19 10:12:19 10:12:19 10:12:19 10:12:19 10:12:19 10:12:19 10:12:20 10:12:20 10:12:20 10:12:20 10:12:20 10:12:20 10:12:20 10:12:20 10:12:20 10:12:20 10:12:20 10:12:20 10:12:20 10:12:21 10:12:21 10:12:21 10:12:21 10:12:21 10:12:21 5 1 issue. I want to argue what you intend to use as 2 documentation. If that's not a problem, you 3 know -- I don't believe that anything in the 4 catalogs pertaining to anything manufactured by 5 Crane Co. that is not the subject matter of this 6 matter should be used. So it sounds like we are on 7 the same page. 8 MS. DEAN: Agreed. 9 THE COURT: Is that what you are looking for 10 in this motion? 11 MR. SCHALK: Yes. Our only concern is, is 12 they are going to try to put in catalogs for other 13 products, which Ms. Dean said she's not going to 14 do. 15 But we also don't want documents 16 referencing other products that she believes could 17 be at the facility that simply three coworkers have 18 been deposed and there is no mention of anything 19 other than the Crane Co. valve at the ComEd 20 facility. 21 THE COURT: All right. I'm going to grant 22 this motion, and I'm asking everybody, if you are 23 going to use documents or you have not exchanged 24 exhibits, why don't you show them to each other 6 1 ahead of time. And knowing that this is part of my 2 ruling on the motion in limine, that you are going 3 to show opposing counsel whatever it is that you 4 are intending on using before trial. 5 MS. DEAN: I very much anticipate -- the 6 documents, I understand that, and that is easy to 7 do. In terms of opening statements, we believe 8 that there is evidence that the gaskets in the 9 crane valve, what are called cranite gaskets, were 10 supplied to them, and, in addition, they had 11 knowledge that they would be insulated by virtue of 12 the fact that they showed and advertised that they 13 designed their valves for insulation. 14 So I absolutely don't plan on talking 15 about a type of equipment that is not in this case, 16 but I am going to, in opening statement, mention 17 that they sold the gaskets and that they knew the 18 insulation would be there. If they want that to be 19 heard before I do it in opening, I want to make 20 sure they have their chance to do that. 21 THE COURT: Now, that is an argument that is 22 going to be made, and that is part of their case. 23 MR. SCHALK: Your Honor, but as far as the 24 cranite goes, this is going to be unduly 10:12:21 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:22 10:12:23 10:12:23 10:12:23 10:12:23 10:12:23 10:12:23 10:12:23 10:12:23 10:12:23 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:24 10:12:25 10:12:25 10:12:25 10:12:25 10:12:25 10:12:25 10:12:25 10:12:25 10:12:26 10:12:26 AUGUST 26, 2009 7 1 prejudicial to my client to without evidence to 2 suggest that craneite was used at that facility. 3 Three coworkers were deposed at length. 4 They were asked what gaskets, what packing, what 5 were the names that you recall seeing Mr. Mulcahy 6 work with, what do you recall working with at that 7 facility. 8 THE COURT: That is an issue that goes to 9 weight, not admissibility. You are, in fact, going 10 to be able to argue that, if none of it was used. 11 Their position is that it was used. Is that right? 12 MS. DEAN: Yes. 13 THE COURT: Okay. So it comes in, and it's 14 just going to be a matter of how the jury 15 interprets it when they are trying the facts in 16 this case. 17 The next motion I have is Crane's motion 18 to preclude the actions or knowledge of trade 19 associations. Any objection to this? 20 MS. DEAN: Yes, your Honor. 21 THE COURT: What is your objection? 22 MS. DEAN: They cite to a bunch of civil 23 conspiracy cases, and to affirm their position, I 24 think maybe they misunderstand why we are trying to 8 1 use this evidence. 2 What we have to prove is what this 3 company knew or should have known about the dangers 4 of asbestos. What we do all over is figure out 5 what organizations they were in, to show that that 6 was information they either knew or had available 7 to them, and, therefore, should have known. 8 We have talked to General Electric. 9 They agree that this is relevant evidence, but 10 Crane has cited civil conspiracy cases that say 11 this, The crime is committed and you are there. 12 It's not enough to say that you are responsible for 13 that crime unless you somehow affirmatively adopted 14 the behavior of the organization that did the bad 15 behavior. 16 I'm not doing this to say that the 17 National Safety Council did something bad and Crane 18 is on the line for it because they adopted it. 19 Rather, what I am saying is, the National Safety -20 Crane was a member of the National Safety Council 21 and provided their membership articles about the 22 dangers of asbestos and that that is probative 23 evidence of what they knew or should have known 24 about those dangers. TRANSCRIPT OF PROCEEDINGS 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:26 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:27 10:12:28 10:12:28 10:12:28 10:12:28 10:12:28 10:12:28 10:12:28 10:12:28 10:12:28 10:12:29 10:11:14 10:11:35 10:11:37 10:11:40 10:11:42 10:11:45 10:11:47 9 1 THE COURT: Okay. Thank you. I'm not cutting 2 you off. I'm reserving this issue. 3 In your opening statements, if you are 4 intending on discussing this, I don't want you to 5 go into associations. You can use a global comment 6 that they knew or should have known based on X, Y, 7 and Z using the word "associations." I'm going to 8 prohibit you from going into all of the 9 associations, what they did. I don't know if you 10 are ever intending on using the word "conspiracy." 11 It doesn't sound like you are going to. 12 MS. DEAN: No, your Honor. 13 THE COURT: I think that was the subject 14 matter of a motion in limine, but I want you to 15 avoid all of that, and as it comes up, we are going 16 to deal with it then. 17 MS. DEAN: So there are members of 18 associations but don't get into what the 19 associations said? 20 THE COURT: Or did. Just the members. 21 MR. FITZPATRICK: Judge, I was going to say, I 22 think for one association that I know they used, 23 the National Safety Council, I have never objected 24 to it. We were members. We were actually founding 10 1 members. They use that. I have no objection, and 2 I told her for her opening. So if she wanted to 3 use that on GE, I have no objection. 4 THE COURT: Do you have an objection to that 5 particular association? 6 MR. SCHALK: Yes. We are not founding 7 members, and in the past there have been documents 8 from the NSC that have been published to try to 9 impute that knowledge on Crane Co. before Crane Co. 10 was even a member. 11 THE COURT: Okay. Well, don't do it against 12 Crane Co., and if you want to use if against GE. 13 MR. FITZPATRICK: You can do it against me. 14 It is notice. 15 THE COURT: Let's get to opening statements. 16 I'll see you across the hall. 17 MR. KING: Thank you, your Honor. 18 THE COURT: All right. Do we have Ms. Gunty? 19 MR. KING: She'll be here. 20 MR. FITZPATRICK: I have no objection to any 21 exhibits that she shows. We gave her notice, we've 22 already talked, it's been agreed to. 23 THE COURT: All right. Thank you. 24 MS. DEAN: On a similar note, we also reached 10 :11:55 10 :11:56 10 :11:59 10 :12:03 10 :12:05 10 :12:09 10 :12:15 10 :12:19 10 :12:22 10 :12:24 10 :12:26 10 :12:29 10 :12:35 10 :12:36 10 :12:38 10 :12:38 10 :12:38 10 :12:38 10 :13:24 10 :13:24 10 :13:26 10 :13:27 10 :13:30 10 :13:33 AUGUST 26, 2009 11 1 an agreement with Crane not to exchange PowerPoints 2 and exhibits in advance, instead just 3 contemporaneously during the openings, and also 4 would like to seek a running -- a standing 5 objection in opening statements not to object to 6 counsel's reference to other exposures. We believe 7 that's a violation, but don't want to have to jump 8 up every time they say something. 9 Is that agreeable to all parties? 10 THE COURT: I'll allow that to serve as a 11 standing objection -- and continuing objection to 12 my ruling in the motion in limine. 13 All right. Everyone's here. Let's 14 bring them out. 15 THE DEPUTY: All rise for the jury, please. 16 (WHEREUPON, the following further 17 proceedings were had in open court, 18 in the presence and hearing of the 19 Jury, to-wit:) 20 THE COURT: Thank you, Deputy. 21 Good morning, ladies and gentlemen. 22 Nice to see you all today. Welcome back. 23 I apologize, first of all, for the 24 delay. We have a saying here, and that is for 10:13:35 10:13:38 10:13:41 10:13:44 10:13:49 10:13:50 10:13:52 10:13:54 10:13:56 10:13:58 10:14:00 10:14:03 10:14:05 10:14:07 10:14:09 10:14:12 10:14:14 10:14:17 10:14:19 10:14:21 10:14:24 10:14:25 10:14:27 10:14:30 12 1 every hour of jury time, there's about two, two and 2 a half hours of lawyer time, and that's what you're 3 experiencing. I can assure you we're going to 4 attempt to be on schedule and do our best to commit 5 that to you. 6 I have some remarks to make to you 7 before the lawyers start with opening statements 8 today. Much of this you heard yesterday, so please 9 bear with me. 10 A plaintiff, as you already know, has a 11 right to file a lawsuit. A defendant has a right 12 to defend it. The parties have a right to have a 13 jury decide the issues in this case. 14 The fact that a lawsuit has been filed 15 does not automatically mean that a plaintiff is 16 entitled to recover money damages; likewise, the 17 fact that a defendant denies liability does not 18 automatically mean that the plaintiff is not 19 entitled to recover damages. 20 The trial will begin with opening 21 statements. This is an opportunity for the 22 attorneys to tell you what they believe the 23 evidence is going to show as the trial proceeds. 24 It's not a time for them to make TRANSCRIPT OF PROCEEDINGS 10:14:32 10:14:34 10:14:37 10:14:38 10:14:41 10:14:45 10:14:48 10:14:51 10:14:54 10:14:56 10:14:58 10:15:01 10:15:04 10:15:07 10:15:09 10:15:11 10:15:15 10:15:17 10:15:19 10:15:21 10:15:24 10:15:27 10:15:30 10:15:33 10:15:35 10:15:38 10:15:41 10:15:45 10:15:46 10:15:49 10:15:50 10:15:55 10:15:57 10:15:58 10:16:01 10:16:03 10:16:06 10:16:08 10:16:10 10:16:13 10:16:16 10:16:20 10:16:21 10:16:24 10:16:28 10:16:30 10:16:32 10:16:34 13 1 arguments to you. It's a chance for the attorneys 2 to familiarize you with what they believe the facts 3 are going to be. 4 The evidence at trial consists primarily 5 of the witnesses' testimony from the witness stand 6 and physical objects or items that we call 7 exhibits. It is from the witnesses' testimony and 8 the exhibits that you are going to determine what 9 the facts in this case are. 10 It has been said that in a jury trial, 11 the judge is the judge of the law and the jury is 12 the judge of the facts. It is your job as jurors 13 to decide the facts in this case. 14 In that connection, you're to judge the 15 credibility of the witnesses. That means you are 16 to judge the witnesses' believability and also 17 decide the weight to be given to each of the 18 witness's testimony. 19 It's absolutely crucial that you hear 20 everything the witnesses have to say. As I 21 indicated to you yesterday, I have probably three 22 banks of elevators on this side of the wall and 23 oftentimes the acoustics are very difficult here. 24 If someone is on this witness stand and you cannot 14 1 hear a witness, you either have to get my 2 attention, the deputy's attention, raise your hand 3 or give me a shout-out because what they're saying 4 is worthless if you can't hear. 5 The plaintiffs will present evidence 6 first and then the defendants will present 7 evidence. After either side has rested and their 8 presentation of evidence is complete, you may hear 9 rebuttal evidence from the plaintiff's side. That 10 usually takes a much shorter period of time. 11 During the presentation of evidence and 12 any other times during the trial, you may hear the 13 attorneys make objections. Please don't hold this 14 against the attorneys. It's their duty to make 15 objections and make sure that only relevant and 16 material evidence is heard by you and immaterial 17 and irrelevant evidence is kept out of this trial. 18 You will hear an attorney say, 19 "Objection." When I sustain an objection, you will 20 hear me say, "Objection sustained." That means I 21 agree with the lawyer making the objection. You're 22 to disregard an answer if it was given and 23 disregard the question. 24 When I overrule an objection, you will 10:16:36 10:16:39 10:16:41 10:16:43 10:16:46 10:16:48 10:16:50 10:16:52 10:16:54 10:16:58 10:17:01 10:17:04 10:17:07 10:17:08 10:17:10 10:17:13 10:17:14 10:17:17 10:17:21 10:17:22 10:17:24 10:17:27 10:17:29 10:17:32 10:17:35 10:17:37 10:17:41 10:17:43 10:17:45 10:17:48 10:17:51 10:17:53 10:17:56 10:17:59 10:18:02 10:18:05 10:18:07 10:18:09 10:18:12 10:18:14 10:18:16 10:18:19 10:18:23 10:18:25 10:18:28 10:18:29 10:18:32 10:18:32 AUGUST 26, 2009 15 1 hear me say, "Objection overruled." That means I 2 disagree with the attorney making the objection and 3 you can go ahead and listen to the question and 4 listen to the answer, but don't give it any more 5 weight you would ordinarily give it had the 6 objection not been made at all. 7 From time to time, as you already know, 8 there are going to be conferences between me and 9 the lawyers which are absolutely necessary. These 10 are called sidebars. We know and respect your time 11 and we also recognize that you're sitting waiting 12 for us. Please forgive us and don't hold it 13 against the attorneys, either. 14 I ask that you keep an open mind and not 15 make any decisions or draw any conclusions until 16 all of the evidence has been presented to you in 17 this case and you have had the benefit of all the 18 attorneys' closing arguments to you. 19 When you return to the courthouse either 20 at the beginning of the day or after your lunch 21 hour, please proceed to the jury room directly, as 22 I advised you yesterday. There may be lawyers and 23 witnesses in the hallway that don't recognize you 24 asjurors and they may be talking about the case. 16 1 Lastly, you're instructed that every 2 juror has a right to take and use written notes. 3 Notepads and pens have been provided for your 4 convenience. Please place your name on the front 5 of your notepad, and no one will be allowed to look 6 at your notes at any time. 7 Those of you who take notes during trial 8 may use your notes to refresh your recollection 9 during jury deliberations. Each juror should rely 10 on his or her recollection of the evidence in this 11 case. Just because a juror has taken notes does 12 not automatically mean that thatjuror's 13 recollection of the evidence is any better than 14 someone that has not taken notes. 15 When you are discharged from service in 16 this case, your notes will be collected by my 17 deputy and destroyed. Throughout that process, no 18 one will be allowed to look at your notes at any 19 time and they will remain confidential. 20 And that concludes my opening remarks to 21 you, ladies and gentlemen. At this time you're 22 going to hear opening statements by the attorneys. 23 Ms. Dean. 24 TRANSCRIPT OF PROCEEDINGS 10:23:22 10:23:24 10:23:27 10:23:31 10:23:33 10:23:37 10:23:38 10:23:40 10:23:44 10:23:46 10:23:50 10:23:53 10:23:55 10:23:59 10:24:02 10:24:05 10:24:08 10:24:10 10:24:12 10:24:17 10:24:20 10:24:22 10:24:26 10:24:27 10:24:30 10:24:34 10:24:38 10:24:40 10:24:43 10:24:46 10:24:48 10:24:50 10:24:52 10:24:55 10:24:57 10:24:58 10:24:59 10:25:03 10:25:08 10:25:10 10:25:12 10:25:14 10:25:17 10:25:20 10:25:22 10:25:23 10:25:25 10:25:29 21 1 And then finally you're going to hear 2 that the actual design of the valve was made 3 specifically to be insulated, and they advertised 4 that. "We have a sleeker body, easier to 5 insulation," things of that nature. 6 The reason this is so important is 7 you're going to hear that in order to do any kind 8 of work on this, to get to the body of the valve, 9 you have to remove this insulation. 10 Now, insulation untouched, just like any 11 asbestos product like a floor tile, doesn't present 12 danger. It's when you remove it or work on it 13 releasing asbestos into the air, and what workers 14 would have to do on Crane valves is remove that 15 insulation, putting tons of asbestos into the air, 16 and you're going to hear that was dangerous. 17 But it wasn't just the insulation. 18 There was also asbestos in the valves, there was 19 asbestos gaskets and asbestos packing. 20 Crane not only sold asbestos gaskets and 21 packing in the valves but later when those things 22 were removed and changed and taken out, they sold 23 replacement parts. 24 Now, asbestos packing is used where 22 1 there's moving parts. In the gland of a valve -2 you have where the wheel is going to be turned two 3 metal moving parts, and packing was put in there 4 because, first, asbestos packing was needed when 5 you're working with metal and, second, it kept 6 leaks from happening. You don't want especially 7 steam to be coming out. 8 But that packing, just from being used, 9 would get worn down and have to be replaced. You 10 would literally have to replace it or -- replace it 11 to remain. 12 You're going to hear about how that was 13 done by John Mulcahy. What they would do is first 14 let that valve cool off, all right? It's 700, 800 15 degrees. You can't get in to do your work. 16 In the meantime, that packing would get 17 dry and brittle, and they would take a metal hook 18 and literally pick it out, and it was critical to 19 get all the asbestos packing out, so they would 20 next take compressed air and blow air into the 21 valve putting the asbestos into their face. 22 And you are going to hear that is 23 incredibly dangerous. But there are also asbestos 24 gaskets, and there were different types of asbestos 10:25:31 10:25:34 10:25:36 10:25:38 10:25:41 10:25:44 10:25:47 10:25:49 10:25:52 10:25:55 10:25:57 10:25:58 10:26:02 10:26:05 10:26:08 10:26:08 10:26:12 10:26:16 10:26:20 10:26:22 10:26:25 10:26:28 10:26:31 10:26:34 10:26:37 10:26:41 10:26:41 10:26:44 10:26:49 10:26:52 10:26:57 10:27:00 10:27:01 10:27:02 10:27:06 10:27:10 10:27:12 10:27:16 10:27:17 10:27:20 10:27:22 10:27:25 10:27:27 10:27:31 10:27:33 10:27:36 10:27:38 10:27:42 AUGUST 26, 2009 23 1 gaskets. There were flexitallic or spiral wound 2 gaskets, which were metal with asbestos in the 3 middle of them. And you are going to hear when 4 those were new, they created no problem. But after 5 they were put into a Crane valve and crushed 6 together and you had to replace them, that would 7 cause asbestos to be put into the air. 8 Same thing with something called a sheet 9 gasket. Here you are seeing a U sheet gasket on 10 the end of a flange. If you have two pieces of 11 equipment or pipes that need to be a put together 12 with a valve, you will have two flange units with 13 bolts so that you can bolt the two pieces together. 14 A gasket is put in between those two pieces so you 15 don't have leaking. 16 The gaskets that Crane used and made 17 were with 80 to 90 percent asbestos. More asbestos 18 than anyone else, but they used a rubber binding to 19 keep it together. And you are going to hear, 20 again, that a gasket when it's new is no problem, 21 just like insulation that is painted is no problem. 22 But once it's put into a Crane valve and 23 it bakes and cakes onto the side and you have to do 24 repair and maintenance, and you pull the pipe and 24 1 valve away from each other and you have gasket 2 stuck all over. And what the workers had to do was 3 scrape that off, 90 percent asbestos, putting it 4 into the air, which is extraordinarily dangerous. 5 But Crane was not the only one that made 6 and sold dangerous products. You are also go to 7 hear about General Electric. They sold turbines. 8 That is what they did. Now, the first type of 9 turbine I am going to talk about was used with 10 pumps. Pumps were used in systems in order to 11 propel and push forward steam or fluid, and in 12 order to have power you had to use a motor or a 13 turbine. GE sold those turbines. 14 And at the plants that we are talking 15 about, you are going to hear that there were main 16 feed pumps that were powered by General Electric 17 turbines, that had asbestos insulation, and that in 18 order to work on that, you had to remove that 19 insulation, which was extraordinarily dangerous. 20 But probably the most dangerous product 21 that you are going to hear about is this. This is 22 not just a turbine. It's called a turbo generator. 23 It's a cross-compound turbine generator, and it is 24 called cross-compound because you have a TRANSCRIPT OF PROCEEDINGS 10:27:43 10:27:46 10:27:50 10:27:53 10:27:56 10:27:59 10:28:01 10:28:04 10:28:09 10:28:14 10:28:15 10:28:18 10:28:21 10:28:22 10:28:27 10:28:30 10:28:33 10:28:36 10:28:40 10:28:43 10:28:46 10:28:47 10:28:49 10:28:52 10:28:56 10:29:00 10:29:03 10:29:10 10:29:13 10:29:16 10:29:17 10:29:20 10:29:22 10:29:25 10:29:27 10:29:31 10:29:33 10:29:37 10:29:39 10:29:41 10:29:43 10:29:45 10:29:48 10:29:51 10:29:54 10:29:56 10:29:59 10:30:02 25 1 high-pressure turbine and you have a low-pressure 2 turbine, and here are the generators. 3 There were over half a dozen of these 4 huge products that were at the different sites that 5 John Mulcahy worked at. I don't know if you can 6 see these on the other side, but it gives you a 7 little bit of the idea of how massive, absolutely 8 huge these things are. Underneath this here, this 9 is called a metal lagging. There was all sorts of 10 asbestos insulation. You will hear there is 11 different types of insulation, mud and insulation 12 and blankets, and GE used it all. 13 But here you are only getting part of 14 the picture. This is the same cross-compound 15 General Electric turbine generator, but we have 16 moved back a little bit. What you can see now is 17 that this top part was only a very small part of 18 the picture, because all underneath here where the 19 maintenance guys were working is everything else. 20 You have pipes with asbestos insulation, miles of 21 pipes. 22 General Electric sold hundreds of valves 23 with gaskets and packing that were asbestos 24 containing. They sold half a dozen pumps. They 26 1 sold strainers. They sold the actual insulation, 2 hundreds of pounds of insulation all as part of 3 this system. And overhauls and work had to be done 4 on this on a consistent basis, and you are going to 5 hear that work was extraordinarily dangerous. 6 Now, the same with Crane. General 7 Electric did not make the insulation. They went to 8 someone else and got it, but we have the contract 9 at the work sites that John Mulcahy worked at and 10 know that General Electric was the one that sold 11 the insulation that was used there on this product. 12 Same with the gaskets. They did not make them. 13 They may have gone to Crane to get the gaskets or 14 someone else, but they sold thousands of them and 15 it was extraordinarily dangerous. 16 But it was not just that they made and 17 sold dangerous products. You are going to hear 18 there was widespread public information that showed 19 asbestos could kill people. Over 100 years ago 20 there was information that even small amounts of 21 asbestos could kill you. 22 By the 1930s there was studies that 23 showed asbestos products as opposed to raw asbestos 24 could kill people, and these were in published 10:30:05 10:30:07 10:30:12 10:30:16 10:30:18 10:30:21 10:30:22 10:30:26 10:30:27 10:30:31 10:30:32 10:30:35 10:30:37 10:30:39 10:30:43 10:30:44 10:30:46 10:30:49 10:30:51 10:30:54 10:30:57 10:30:59 10:31:02 10:31:04 AUGUST 26, 2009 27 1 literature that said the very products that we are 2 talking about today in 2009, gaskets, packing, 3 insulation, could cause disease. 4 By the 1940s, studies confirmed that it 5 could not just cause disease but it could cause 6 cancer. And you are going to hear a lot about why 7 cancer is much more scary and much more dangerous 8 than other diseases. 9 And by the 1960s, there were literally 10 thousands of articles in the published literature 11 about the dangers of asbestos. And you are going 12 to hear that's important because in the State of 13 Illinois when you manufacture a product, you have a 14 duty to know about these dangers, to look at this 15 literature. 16 But it was notjust on literature. 17 Starting in the '70s it became government 18 regulation. See, OSHA had an emergency standard in 19 1971 to regulate asbestos and to put a limit on the 20 amount of asbestos that could be released into the 21 air when you worked with the product. The reason 22 they had it, it's actually in the regulations, you 23 had to have this emergency standard because people 24 were dying and that this limitation was only 10:31:07 10:31:09 10:31:11 10:31:14 10:31:16 10:31:19 10:31:23 10:31:27 10:31:30 10:31:31 10:31:35 10:31:38 10:31:41 10:31:43 10:31:46 10:31:48 10:31:49 10:31:52 10:31:56 10:31:58 10:32:01 10:32:04 10:32:06 10:32:08 28 1 temporary. We are going to have to get it lowered 2 because people are dying. 3 What that limitation is called is a 4 threshold limit valve. And you will hear that 5 while OSHA was the first to regulate it larger like 6 this, scientists since the 1940s had had different 7 threshold limit values, saying you cannot exceed 8 this amount or people will get hurt. 9 So this is important. Both the 10 scientists and OSHA also said, even if you are 11 below this amount, people can still get hurt. You 12 still have to do testing. You still have to let 13 people know and warn them that they could get hurt 14 by this product even below the amount that we are 15 setting on this emergency standard. 16 So the evidence is going to show that 17 when he worked there in the 1980s and by the time 18 that he left working around these companies' 19 equipment, not only through regulations but 20 literature, it was well understood what they sold 21 and made was extraordinarily dangerous. 22 But you are finally going to hear that 23 other than the general information from the public, 24 in the literature and by the government, they were TRANSCRIPT OF PROCEEDINGS 10:32:11 10:32:14 10:32:17 10:32:19 10:32:22 10:32:26 10:32:30 10:32:32 10:32:34 10:32:38 10:32:39 10:32:42 10:32:42 10:32:43 10:32:46 10:32:49 10:32:51 10:32:53 10:32:55 10:32:57 10:33:02 10:33:08 10:33:12 10:33:18 10:33:19 10:33:22 10:33:23 10:33:24 10:33:29 10:33:33 10:33:35 10:33:36 10:33:39 10:33:42 10:33:45 10:33:49 10:33:51 10:33:55 10:33:58 10:34:01 10:34:04 10:34:08 10:34:09 10:34:11 10:34:13 10:34:16 10:34:18 10:34:21 29 1 told because of organizations that they were in 2 that asbestos was dangerous over and over again. 3 General Electric was told by the 4 National Safety Council, which they were a founding 5 member of, that not only that asbestos was 6 dangerous in the 1930s, but the threshold limit 7 value of the day did not mean that people were 8 going to be safe. You have got to protect people. 9 The American Society of Mechanical Engineers, they 10 were also a member of that in the 1930s that said, 11 you have to test this stuff. You have to protect 12 people. 13 You are going to hear through all of 14 these different organizations, that both Crane and 15 General Electric were a member of, other than the 16 top one -- Illinois Manufacturing Association, 17 Crane was only a member of -- were providing 18 information to those members. 19 So the next question is, what did they 20 do with that information? You are going to hear 21 that they chose not to warn a soul. When General 22 Electric got the contract to build these massive 23 turbo generators and bring the turbines, for making 24 parts, it was part of the contract that they had to 30 1 give a dozen manuals to make sure that the people 2 working on the equipment could review it and how to 3 do it safely. 4 There is not a single one. There are 5 placards that were put on the equipment of Crane 6 valves and General Electric turbines, and not one 7 of the placards indicates there was a danger of 8 working with this product. 9 But you are also going to hear that 10 these companies were at the work site. Crane 11 Company was the piping contractor. They were 12 there. General Electric put all of this together 13 on-site, and there are records. We have 13 boxes 14 of documents from their involvement with just one 15 of the sites that he was at. 16 And they are there dozens of times, and 17 they never say to the workers they are supervising, 18 including John Mulcahy, the stuff that you are 19 working with is dangerous, so that they can make 20 their own choice about what to do. 21 In fact, you are going to hear about 22 General Electric in the 1970s, while John Mulcahy 23 is still working with their product, they made a 24 determination that asbestos is too dangerous and 10:34:23 10:34:27 10:34:27 10:34:30 10:34:34 10:34:38 10:34:40 10:34:43 10:34:46 10:34:48 10:34:51 10:34:54 10:34:56 10:35:00 10:35:01 10:35:04 10:35:06 10:35:07 10:35:07 10:35:10 10:35:13 10:35:16 10:35:17 10:35:20 10:35:22 10:35:26 10:35:28 10:35:30 10:35:30 10:35:32 10:35:36 10:35:39 10:35:42 10:35:45 10:35:47 10:35:49 10:35:53 10:35:56 10:36:00 10:36:03 10:36:07 10:36:09 10:36:12 10:36:14 10:36:15 10:36:19 10:36:21 10:36:26 AUGUST 26, 2009 31 1 too much of a liability to sell. No one disputes 2 that. 3 Now, did they go back to the people they 4 already sold it to to tell them that? When they 5 kept going back to Will County, where Mr. Mulcahy 6 worked, and worked side by side with him for the 7 next ten years, did they let him know that we are 8 not selling it anymore because it's so dangerous 9 and, by the way, you are working on the same thing 10 right now? That never happened. But this case is 11 more about the failure to warn. That is one thing 12 that we are here about. 13 But the second thing we you will hear is 14 that we believe that both Crane and General 15 Electric designed defective products. Products 16 that were more dangerous than a reasonable person 17 would expect. 18 And you are going to hear evidence that 19 there are certain dangers you certainly expect from 20 working on this. If something is 700 degrees 21 Fahrenheit, you expect to burn yourself if you are 22 not careful. If you have a 400-pound valve and you 23 knock it over, you are going to get hurt. If you 24 put your hands in a moving part of a turbine, you 32 1 are going to get hurt. But does an ordinary person 2 expect that when they are working on this 3 equipment, that they are going to get cancer? 4 Well, you are going to hear from 5 Dr. Brody. He's a molecular biologist, and he's 6 going to come here to tell you about that. I think 7 everybody has heard of it, but when I started 8 learning about this, I did not realize it was 9 actually a natural rock mined from the earth and 10 put into different products. 11 And he's going to tell you that the 12 individual fibers that are lined up are invisible 13 in nature. You cannot see them. You can't smell 14 it. You can't taste it. It doesn't burn your 15 throat or itch your skin. There is absolutely 16 nothing about asbestos that tells you, Stop, you 17 are working with something that could not only kill 18 you but you could take home to your family and kill 19 your family. 20 The evidence will be that if someone 21 does not tell you, if they don't put a basic 22 warning that there is nothing that these users 23 would know to give them a heads-up, it's dangerous. 24 But the third claim that we have is we TRANSCRIPT OF PROCEEDINGS 10:50:30 10:50:31 10:50:32 10:50:36 10:50:39 10:50:43 10:50:47 10:50:49 10:50:54 10:50:57 10:50:59 10:51:01 10:51:03 10:51:06 10:51:10 10:51:14 10:51:17 10:51:21 10:51:25 10:51:27 10:51:29 10:51:31 10:51:36 10:51:38 45 1 purposes. 2 You're going to compare that to their 3 expert, Dr. Betts, who is also an occupational 4 medicine doctor who does not see patients, hasn't 5 in nine years, doesn't even know in his entire 6 history of treating someone with mesothelioma, has 7 never done these medical examinations for 8 scientific purposes, like Dr. Holstein. He only 9 testifies for defense companies and makes a lot of 10 money doing it. 11 You're also going to hear from Marjorie 12 Drucker. She's a representative of General 13 Electric, and of all General Electric employees, 14 they chose her to come talk about what General 15 Electric knew about the dangers of asbestos. She 16 worked for the company for one year from 1971 to 17 1972. She's coming from Manhattan Beach California 18 and being paid $350 to give her perspective about 19 what General Electric knew. 20 And ultimately you and you alone can 21 determine the weight of each one of these witnesses 22 and what they're going to be. 23 Two weeks is a long time, and I could 24 tell by many of your faces when you were told you 10:51:40 10:51:44 10:51:48 10:51:52 10:51:54 10:51:57 10:52:00 10:52:03 10:52:05 10:52:07 10:52:10 10:52:12 10:52:16 10:52:20 10:52:25 10:52:29 10:52:32 10:52:33 10:52:38 10:52:39 10:52:41 10:52:45 10:52:55 10:52:55 46 1 were going to be here it wasn't excitement that 2 overcame you, but I want to say and Eva asked me to 3 say thank you. I know some of you have done this 4 numerous times, I know many of you are missing time 5 from work and all of you from your lives, and I 6 just -- this is incredibly important. This is the 7 last time I get to talk to you until the very end 8 one on one, and I want to say thank you. 9 But the reason we're here is because 10 we're going to hold these companies liable because 11 the evidence will be that they sold and made 12 products that they knew had to be scraped off, 13 grinded, torn apart exposing Mr. Mulcahy to 14 asbestos, and they actively made the decision to 15 leave Mr. Mulcahy, who had no idea of the danger, 16 in danger. 17 I very much look forward to putting on 18 the evidence and letting you know about him, and I 19 thank you for your time. 20 THE COURT: Thank you, Ms. Dean. 21 Opening statement, GE, Mr. Fitzpatrick? 22 MR. FITZPATRICK: May we have two minutes to 23 set up? 24 THE COURT: You may. 10:53:19 10:53:19 10:53:19 10:57:34 10:57:34 10:57:37 10:57:40 10:57:41 11:08:55 11:08:55 11:08:58 11:09:00 11:09:03 11:09:07 11:09:08 11:09:10 11:09:11 11:09:14 11:09:16 11:09:19 11:09:22 11:09:24 11:09:26 11:09:29 11:09:30 11:09:34 11:09:38 11:09:40 11:09:40 11:09:40 11:09:45 11:09:46 11:09:48 11:09:53 11:09:53 11:09:55 11:09:57 11:09:59 11:10:00 11:10:03 11:10:05 11:10:08 11:10:10 AUGUST 26, 2009 47 1 (WHEREUPON, there was a short 2 interruption.) 3 (WHEREUPON, discussion was had 4 off the record.) 5 THE COURT: We'll go ahead and take our 6 morning break, just, you know, a short one, about 7 ten minutes. 8 So see you back then. 9 (WHEREUPON, the trial was recessed 10 from 10:53 to 11:11 a.m.) 11 (WHEREUPON, the following 12 proceedings were had in open court, 13 in the presence and hearing of the 14 Jury, to wit:) 15 MR. KING: Your Honor, if we could before the 16 jury comes out, one of point of request for the 17 defendants. We believe there was a misstatement of 18 law in plaintiff's opening. We would ask for a 19 curative instruction specifically that the burden 20 of proof is on the defendants to establish sole 21 proximate cause. 22 We do not believe that is what Nolan 23 stands for. We believe that the sole proximate 24 cause issue is merely showing the failure of the 48 1 plaintiff to meet their burden and that, in fact, 2 other causes were the sole proximate cause. 3 But to put the burden on the defendants, 4 we believe is improper. 5 THE COURT: And your response? 6 MS. DEAN: Nolan explicitly calls it an 7 affirmative defense. It's pled by at least Crane 8 as an affirmative defense. What Nolan does say is 9 to prove causation, under Thacker, it's the 10 plaintiff's burden, but that is not what I said, I 11 have to prove causation. 12 If they are going to say something else 13 was the sole proximate cause and they were not at 14 all, that is an affirmative defense, and that is 15 pled. 16 MR. FITZPATRICK: Judge, I'm not here to 17 reargue Nolan. I'm ready to go. 18 THE COURT: And it's not your objection 19 either. I understand that. 20 MR. KING: Nolan clarifies the issue of 21 whether defendants are permitted to put on evidence 22 of other exposures. That is what Nolan opened the 23 gate for. Nolan did not change the burden of proof 24 on the plaintiff's burden to establish causation. TRANSCRIPT OF PROCEEDINGS 11:10:13 11:10:17 11:10:18 11:10:21 11:10:21 11:10:23 11:10:25 11:10:31 11:10:34 11:10:36 11:10:38 11:10:41 11:10:42 11:10:44 11:10:44 11:10:44 11:10:44 11:11:22 11:11:22 11:11:28 11:11:32 11:11:32 11:11:32 11:11:32 11:11:32 11:11:34 11:11:36 11:11:37 11,11,41 11,11,44 11:11:47 11:11:47 11:11:49 11:11:51 11:11:58 11:11:59 11:12:01 11:12:03 11:12:06 11:12:08 11:12:12 11:12:13 11:12:16 11:12:20 11:12:24 11:12:26 49 1 All it does is it allows defendants to put on 2 evidence that plaintiff does not meet their burden 3 because there were other causes that were the sole 4 cause. 5 THE COURT: I tend to agree with you, 6 Mr. King, however, it's my experience that that 7 type of thing will add -- me admonishing them as 8 such will add more than detract from the situation. 9 I will allow you to make what you believe is a 10 clarification in your statement, and I think that 11 is the better way to handle it than it coming from 12 me. Okay? 13 MR. KING: Thank you, your Honor. 14 THE COURT: Sure. Let's bring them out. 15 (WHEREUPON, the following 16 proceedings were had in open court, 17 in the presence and hearing of the 18 Jury, to wit:) 19 THE DEPUTY: Please be seated. Thank you. 20 THE COURT: Thank you. Welcome back, 21 everyone. 22 Mr. Fitzpatrick. 23 24 50 1 OPENING STATEMENT ON BEHALF OF GENERAL ELECTRIC 2 MR. FITZPATRICK: 3 If it please the Court. Thank you, your 4 Honor. Good morning, Ladies and Gentlemen. 5 Luckily, our turbines and lightbulbs 6 work much better than my laptop on that start. 7 As you know, my name is John 8 Fitzpatrick. With LaMar Jost, we have the 9 privilege of representing General Electric. 10 General Electric is a company that 11 helped electrify this country. It helped power 12 steamships. It helped win wars. That is what we 13 do, and we are proud of it. 14 And I will also tell you that the 15 evidence will be we did not in any way cause this 16 gentleman's disease. Plaintiff's thanked you 17 initially when we got here. I know you did not 18 volunteer and say, Boy, would I like to spend two 19 weeks in court. No. And some of you have been 20 here more than others, but you took an oath and you 21 said, I will follow the law. You said, I'll be 22 fair to both sides. You took that oath and said, I 23 will be able to, and now it's time to do that. Our 24 job will be to present evidence to you, and you 11:12:29 11:12:29 11:12:32 11:12:35 11:12:38 11:12:41 11:12:44 11:12:49 11:12:53 11:12:56 11:12:56 11:13:01 11:13:04 11:13:08 11:13:10 11:13:14 11:13:18 11:13:23 11:13:27 11:13:27 11:13:29 11:13:31 11:13:33 11:13:40 11:13:43 11:13:46 11:13:49 11:13:53 11:13:57 11:14:00 11:14:03 11:14:04 11:14:07 11:14:11 11:14:14 11:14:17 11:14:20 11:14:25 11:14:28 11:14:31 11:14:35 11:14:41 11:14:46 11:14:50 11:14:53 11:14:57 11:15:00 11:15:04 AUGUST 26, 2009 51 1 will consider that. 2 They are fine people. She had a fine 3 husband. The Judge tells it right off, sympathy is 4 not the issue here. The issue here is did these 5 companies cause this problem. Did we hide the 6 ball, as she said, which she claims. 7 Now, a trial, as you know, is not inning 8 by inning. They go all nine innings. Or as my mom 9 used to say, No matter how thin the pancake is, 10 there are two sides. Sometimes I like to say, my 11 name is really Paul Harvey. There are two sides to 12 every story, and there are two sides even to 13 asbestos, and that is what the evidence will be. 14 Let's go through what the evidence will 15 show you in this case. One, we start out with 16 Mr. Mulcahy, you'll hear about his time in the Navy 17 on a destroyer, a destroyer built in World War II. 18 You will hear about his time at the Commonwealth 19 Edison, probably one of the largest electrical 20 companies delivering power to this state for years. 21 That is what this case is about. 22 Mr. Mulcahy passed away in November of 23 2007. He had mesothelioma, 77 to 78. Fine 24 gentleman. He had a history of prior cancer 52 1 unrelated to asbestos. He had prostate cancer. He 2 smoked for over 40 years. He had chronic 3 obstructive pulmonary disease unrelated to 4 asbestos. He had emphysema unrelated to asbestos, 5 and he had pulmonary fibrosis, a scarring in his 6 lungs, unrelated to asbestos. That is what he had 7 to start. 8 He served on the USS Shannon for four 9 years, 1948 to 1952, a World War II destroyer. On 10 that ship alone are over 40 tons of asbestos 11 throughout the ship put on there by the Navy. 12 He was then a boiler tender. That was 13 his job. He fed those heaters, which helped drive 14 turbines, but that was his job for four years. 15 That had nothing to do with GE in this case. 16 From that time, he then started ComEd. 17 From 1952 to 1964, he worked at the Crawford & 18 Ridgeland plants. He was exposed for 12 years to 19 tons of asbestos insulation on boilers, pumps, and 20 pipes. Nothing to do with GE. 21 He was then a plant mechanic, yes, by 22 '65, and a foreman at the Will County plant, 23 regularly exposed to asbestos on boilers, piping, 24 and equipment from daily duties have nothing to do TRANSCRIPT OF PROCEEDINGS 11:15:07 11:15:12 11:15:15 11:15:18 11:15:21 11:15:24 11:15:27 11:15:30 11:15:34 11:15:36 11:15:38 11:15:42 11:15:42 11:15:47 11:15:50 11:15:52 11:15:56 11:16:00 11:16:07 11:16:12 11:16:16 11:16:17 11:16:18 11:16:21 11:16:24 11:16:27 11:16:30 11:16:33 11:16:37 11:16:40 11:16:43 11:16:46 11:16:49 11:16:51 11:16:54 11:16:55 11:16:59 11:17:02 11:17:05 11:17:08 11:17:11 11:17:14 11:17:15 11:17:18 11:17:20 11:17:23 11:17:26 11:17:29 53 1 with GE. What the evidence will be in this case, 2 he may have assisted -- now, you saw that picture. 3 There is no insulation when he's working on the 4 blades. And you'll hear about how you have to even 5 get to the blades, but he may have assisted on 6 turbine maintenance during the outages. The 7 turbines goes for about three to five years, and 8 when you take them off-line, you can lose power. 9 You need a crane to lift up the shell. 10 That would happen about once every three 11 to five years. You will also hear what ComEd did, 12 is they would contract out and get union insulators 13 to take off the insulation. And then the mechanics 14 worked on the turbines. The mechanics don't take 15 off insulation. 16 So he may have walked by a turbine a few 17 days in 26 years. That will be the testimony 18 against GE. And working with this for almost three 19 decades from the Navy and Commonwealth Edison, 20 versus maybe a couple of days of walking by a GE 21 turbine. 22 Now, what is this case about? First of 23 all, was he exposed? This is what you will have to 24 determine. Was he exposed to and did he breath 54 1 asbestos dust from insulation. Which she admitted, 2 we don't make insulation. We are not Johns 3 Manville. We were not Raybestos. General Electric 4 never manufactured asbestos insulation. 5 And did he breath enough dust in the 6 late '60s to '70s, because that is what their 7 testimony will be, on a GE turbine that we sold in 8 the '50s to 1963, over a sufficient period of time 9 to cause a disease. That will be the first 10 question you have to answer, did he breath enough 11 to cause his disease. 12 Then if he did -- as she said, this is a 13 failure to warn case. There will be no testimony 14 from anybody saying there was a better substitute 15 for asbestos or that our turbine could have been 16 designed different. No one will testify to that. 17 So the issue here is a failure to warn. That is 18 what she said. 19 Therefore, should GE -- was GE 20 unreasonable, based on what was known. Remember, 21 we told you about the old time capsule. We are 22 going to talk about that. Based on what was known 23 on science in the '50s and '60s, were we 24 unreasonable for not warning about a product that 11:17:31 11:17:34 11:17:36 11:17:38 11:17:43 11:17:45 11:17:49 11:17:53 11:17:57 11:18:00 11:18:04 11:18:04 11:18:06 11:18:11 11:18:13 11:18:16 11:18:18 11:18:20 11:18:23 11:18:27 11:18:32 11:18:36 11:18:38 11:18:41 11:18:44 11:18:47 11:18:51 11:18:56 11:19:01 11:19:05 11:19:07 11:19:10 11:19:12 11:19:13 11:19:18 11:19:21 11:19:26 11:19:29 11:19:33 11:19:35 11:19:39 11:19:42 11:19:46 11:19:49 11:19:54 11:19:58 11:20:02 11:20:07 AUGUST 26, 2009 55 1 we did not make, that may have been used on the 2 turbines in the late '60s? 3 Then if a determination is made, should 4 we have warned, would a warning on a steel casing 5 of a turbine that he may have worked on once a year 6 or in a manual that he would never read, would that 7 warning have changed his conduct? That is what 8 they have to prove. Would have changed -- and, by 9 the way, you will hear Johns Manville on their 10 insulation was already putting a warning on it in 11 '64. 12 And then she talked about OSHA. We 13 agreed by 1971 there were no secrets. The 14 government regulated all of it. So would a warning 15 have changed that? Then would that have prevented 16 his cancer? That is what the warning is about. 17 They must meet those steps. 18 So what do we know? His working career 19 starts in 1948. Four years as a boiler technician, 20 not a turbine mechanic, a boiler technician for 21 four years in the Navy, tons of insulation, nothing 22 to do with GE. 23 From '52 to '64, he's a boiler cleaner 24 and a mechanic. Nothing to do with turbines for 56 1 almost another 12 years. You will see the years 2 that the GE units were installed at Will County, 3 '55, '57, '63. He's still not even touching 4 turbines. 5 Then you'll hear about Johns Manville 6 warnings going on their block and insulation 7 because you'll see documents that that is what 8 Sargent & Lundy called for. That is what they 9 wanted. 10 And then from '65 to '88, he's at Will 11 County, he's doing maintenance all over on pumps 12 and valves, nothing to do with GE. And 1971, she 13 told you about OSHA. We agree. And for somehow 14 for this period of time, maybe when a turbine 15 outage every three to five years was done, those 16 are the times that he walked by in this room in his 17 career. A lifetime of asbestos exposures and maybe 18 three outages. 26 years of exposure, and this is 19 what they are claiming. 20 All right. The Navy. Now, I think she 21 told you in opening, GE never said -- I wrote this 22 down, stop, get out, save yourself. That is what 23 she said in opening. Hmm. The Navy -- he was a 24 boiler tech responsible for operating boilers, TRANSCRIPT OF PROCEEDINGS 11:20:12 11:20:16 11:20:18 11:20:22 11:20:23 11:20:26 11:20:29 11:20:36 11:20:41 11:20:44 11:20:48 11:20:52 11:20:56 11:20:58 11:21:01 11:21:06 11:21:10 11:21:12 11:21:13 11:21:18 11:21:24 11:21:28 11:21:32 11:21:36 11:21:40 11:21:44 11:21:46 11:21:51 11:21:57 11:22:00 11:22:04 11:22:08 11:22:11 11:22:13 11:22:17 11:22:19 11:22:21 11:22:25 11:22:28 11:22:28 11:22:31 11:22:34 11:22:39 11:22:40 11:22:42 11:22:46 11:22:48 11:22:52 57 1 steaming pipes that generates everything aboard 2 those ships, onboard. That is what it does. Each 3 Sumner class had 30 to 40 tons. Constant exposure 4 every day. There is no GE folks. He did not get 5 close to the turbines on ships. 6 That is his ship. Tons of asbestos 7 insulation. Stop, get off, save yourself, she 8 said. Huh. This is what -- see that, that's 9 asbestos, that's how ships operate. That his 10 forward fire room. That's his forward fire room. 11 That is the aft, the back part of it. Asbestos is 12 on every pipe on that ship. The galley that he 13 walks through in a ship is covered with asbestos, 14 where he sleeps is covered with asbestos in the 15 mess. Where he -- I'm sorry. That was where he 16 eats. This is the berthing. The berthing where he 17 sleeps, all of the pipes are covered with asbestos. 18 Where he goes tot he bathroom, pipes are covered 19 with asbestos. That is what he did for four years. 20 Stop, get out, and save yourself. That is what she 21 said. 22 Commonwealth Edison. What does a power 23 plant do? These three power plants, it burns coal 24 to boil water. The giant boiler creates steam, and 58 1 then you have a steam cycle, and then they turn the 2 turbines, which will generate electricity to power 3 the state. You see right here, coal will come 4 in -- I hope this thing works. All right. 5 Coal will come in the boilers. You see 6 the boilers. That will drive this turbine, GE 7 turbine. Steam goes through the transmissions 8 line, goes out. Then, of course, the water will 9 come back to the river, power will go out, and that 10 is what you have to help drive and create 11 electricity in a power plant. 12 High-pressure steam is hot. Miles of 13 piping. In fact, to get an idea of how hot it is, 14 you will hear that when there would be steam leaks, 15 whether it was a Navy ship or whatever, people 16 would take a broom and they would go like this 17 because if you walked by a steam leak that was 18 600 pounds, it will cut you in half. So you took a 19 broom, and you knew where the steam leak was 20 because that broom would catch fire. 21 It protects the workers, she said. No 22 debate. Thermal insulation is made out of 23 asbestos. She called it the miracle fiber. It 24 was. What you will hear, it's a naturally 11:22:54 11:22:59 11:23:01 11:23:03 11:23:05 11:23:08 11:23:11 11:23:14 11:23:17 11:23:22 11:23:26 11:23:28 11:23:32 11:23:35 11:23:36 11:23:40 11:23:44 11:23:44 11:23:48 11:23:52 11:23:55 11:23:56 11:23:58 11:24:01 11:24:04 11:24:07 11:24:11 11:24:14 11:24:19 11:24:22 11:24:27 11:24:29 11:24:32 11:24:36 11:24:39 11:24:44 11:24:47 11:24:51 11:24:53 11:24:57 11:25:00 11:25:03 11:25:05 11:25:10 11:25:13 11:25:17 11:25:21 11:25:23 AUGUST 26, 2009 59 1 occurring fiber. It was woven into fabric, added 2 to cement, insulation, because it would withstand 3 temperatures actually as high as 2,000 degrees. 4 Generally, up to 1,500 degrees for insulation. 5 If you had boilers that would go 2,000 6 to 3,000, you would put blocks and blocks and 7 blocks of layers of asbestos, thousands of 8 products. You will hear it was in gas masks for 9 the Navy. Our seamen. That is what kept sulfuric 10 acid out, crocidolite asbestos. 11 I don't think the evidence will be when 12 the gas was coming and you put on your mask, I'm 13 sorry, Navy, stop, get out. That is what they 14 used. 15 The '40s and the '60s, now, we talked a 16 little about it. If you take two aspirin, it will 17 cure your headache. If you take 100, it might do 18 more than cure your headache. The idea of a dose. 19 There is doses of everything. We will eat food 20 that actually has portions of traces of arsenic in 21 it. It doesn't hurt us. But if you get a vial of 22 arsenic, it's not good. 23 You will hear asbestos, from the '30s, 24 that she talked about, through the '70s, there was 60 1 always considered a level that could be safe. A 2 threshold limit value that was passed by 45 states, 3 by the federal government, by the Navy. They said, 4 This is safe. 5 And then OSHA lowered the limits. OSHA 6 did not ban it in '72. They said, Lower the 7 limits. So that is what you will hear about 8 asbestos, it was a miracle fiber. And, again, 9 based on what was known then, the threshold limit 10 value that you will hear about of 5 million -11 right now we have 0.1 fibers per CC. In other 12 words, that level has come down about 600 times, 13 but back in the '40s, '50s and '60s, that was by 14 states, the government, the Navy. They all had it. 15 It was essential to natural security. 16 President Roosevelt signed a bill saying asbestos 17 was one of the 13 materials critical to win the 18 war. There was a war department section for 19 asbestos. That is what asbestos was. There will 20 be no debate on that. Okay? 21 In addition -- by the way, GE loved to 22 make turbines and, yes, GE loved to make a profit. 23 In this economy, I hope someone is making a profit 24 to keep us going. But here is what you are going TRANSCRIPT OF PROCEEDINGS 11:25:25 11:25:28 11:25:33 11:25:34 11:25:35 11:25:39 11:25:43 11:25:47 11:25:51 11:25:55 11:25:57 11:26:01 11:26:04 11:26:08 11:26:10 11:26:11 11:26:13 11:26:16 11:26:19 11:26:22 11:26:25 11:26:29 11:26:33 11:26:36 11:26:40 11:26:43 11:26:47 11:26:50 11:26:54 11:26:58 11:27:00 11:27:02 11:27:05 11:27:14 11:27:16 11:27:19 11:27:30 11:27:31 11:27:33 11:27:36 11:27:40 11:27:41 11:27:45 11:27:47 11:27:50 11:27:53 11:28:00 11:28:02 61 1 to see, they did not go tell Commonwealth Edison 2 how to run the plant. Commonwealth Edison hired a 3 phenomenal designer, Sargent & Lundy, Stone & 4 Webster because they are going to design the layout 5 of the plant. They designed the plant. We agree. 6 This was a proposal for Unit 2. Who 7 would be supervising everything? Not GE, Sargent & 8 Lundy. The work is conducted under the purchaser. 9 It's Commonwealth Edison's plant. Sargent & Lundy 10 is running it, and the union is running their own 11 people. I don't think that any member who was a 12 coworker was going to say, We would have loved to 13 talk to GE as a union member. The unions tell us 14 what to do. Commonwealth Edison tells us what to 15 do, not GE. 16 But it says here, We will follow 17 Sargent & Lundy. We will submit designs to 18 Sargent & Lundy. They are a tremendous 19 organization. The drawings, consulting, that is 20 who Commonwealth Edison is looking to. Those are 21 the documents. 22 So the exposure history from '52 to 61, 23 he worked on boilers nine years, nothing to do with 24 GE. 62 1 Now, what about the boilers? You see 2 the turbine. I mean, she did say, "massive, 3 massive turbines." She said, "Well, hmm, they're 4 the boilers." The boilers in this plant -- that 5 whole plant is nothing but boilers. They've got a 6 car, there are the boilers (indicating). 7 That's what he worked in. Here's 8 another picture of the boiler rooms. The whole 9 thing, that's where the boilers are they run on 10 steam (indicating). 11 From '61, he was also a boiler mechanic, 12 regularly exposed, nothing to do with GE. '65, 13 again, regularly exposed. 14 You'll hear the evidence that 15 Johns-Manville was putting warnings on its products 16 in May, and by '71, OSHA required employers to 17 handle it. 18 That's what you'd expect of any 19 employer. There will be no failure to warn issue 20 after '71. I think she admitted it. The 21 government took over, okay, so we're looking at 22 exposure period basically from '65 to '71. 23 Okay. They were installed from '55 to 24 '63. Asbestos was widely used, and no one 11:28:06 11:28:09 11:28:12 11:28:13 11:28:16 11:28:19 11:28:22 11:28:25 11:28:28 11:28:31 11:28:32 11:28:38 11:28:42 11:28:44 11:28:47 11:28:48 11:28:51 11:28:55 11:28:57 11:29:00 11:29:02 11:29:05 11:29:08 11:29:10 11:29:14 11:29:16 11:29:20 11:29:24 11:29:25 11:29:32 11:29:33 11:29:34 11:29:38 11:29:41 11:29:44 11:29:47 11:29:49 11:29:53 11:29:55 11:29:59 11:30:01 11:30:04 11:30:07 11:30:10 11:30:11 11:30:16 11:30:18 11:30:21 AUGUST 26, 2009 63 1 considered anyone, unless you were an insulator 2 working full-time, as even potentially being at 3 risk. 4 We generate power. The insulation is 5 purchased for turbines. Now, there will be no 6 debate, ladies and gentlemen, that the contracts -7 when GE sold those turbines, the contract would 8 include "provide insulation." GE would contract 9 out to someone to bring the insulation, insulate 10 per the contract into the plant, put them up. We 11 agree. 12 Specifications. The specifications were 13 all dictated by Sargent & Lundy, and that's fine. 14 Turbines and appurtenances shall conform to the 15 standards. She said it. 16 The form B, Class B blankets, now, she 17 mentioned about alternatives, mineral wool. There 18 was a section on the turbine which I'll show you 19 where GE recommended mineral wool not because it 20 was a safety issue, not because it was safer; 21 mineral wool only insulates up to 500 degrees, so 22 after you've had four layers, you can put a 23 different layer, and Sargent & Lundy said, "No, we 24 want amosite asbestos. We want asbestos on 64 1 everything, because it's the best insulation." 2 Fine. That's what the evidence is. 3 We will use Sargent & Lundy says amosite 4 asbestos and that all the joints shall be filled 5 with Johns-Manville cement. Here's the memo. We 6 agree. 7 Sargent & Lundy, the standard 8 specifications that they supplied, states that this 9 insulation proposed by General Electric is 10 satisfactory with the exception we want this one 11 section of the blanket to be mineral wool, but we 12 won't take it. Sargent & Lundy says it must be 13 amosite. Okay. 14 So now let's talk about a turbine. 15 Let's talk a turbine here. We have metal turbines. 16 Casings would be lifted with a crane. That's how 17 you get to it, the crane. 18 Now, GE didn't make the pipes. She 19 showed pictures of pipes and valves and pumps. I 20 don't think you're going to hear any evidence of a 21 GE pump. We don't make pumps, we make turbines. 22 You would lift the casing and you would 23 remove the insulation about every three to five 24 years to check it. And the blankets are reusable. TRANSCRIPT OF PROCEEDINGS 11:30:25 11:30:26 11:30:30 11:30:34 11:30:42 11:30:42 11:30:45 11:30:48 11:30:54 11:30:59 11:31:03 11:31:06 11:31:09 11:31:11 11:31:14 11:31:17 11:31:20 11:31:22 11:31:25 11:31:28 11:31:32 11:31:35 11:31:38 11:31:39 11:31:42 11:31:45 11:31:49 11:31:52 11:31:56 11:31:58 11:32:00 11:32:03 11:32:06 11:32:10 11:32:12 11:32:14 11:32:17 11:32:20 11:32:23 11:32:26 11:32:32 11:32:35 11:32:37 11:32:40 11:32:43 11:32:48 11:32:51 11:32:53 65 1 You take them off, you put them back on. 2 And Mr. Mulcahy may have been on a crew 3 that may have helped, because once the insulation 4 is removed, there's no exposure on metal blades. 5 No other insulation work on the 6 turbines. There's a turbine. Now, look at it. 7 There's no insulation on the outside. The 8 insulation is under, and I'll show you -- doggone 9 it -- there. You got to have a crane that comes 10 over to lift this thing off. You can eat on this. 11 There's no dust, there's no insulation. It's a 12 turbine room. Everything's underneath. 13 Another picture of the turbines, there 14 they are, and here's a picture you can see the 15 crane out there on the back. It's lifted that 16 casing. If I go back, you can see the casing. You 17 can see the areas up where the crane will come over 18 top, and we have now lifted that casing, and you 19 will see, since I'm having trouble with this 20 clicker, there's the insulation blanket. You can 21 see it's nailed in there. You take off the 22 blanket, there would be then block underneath. 23 That's all, underneath. 24 And there the blades is what you're 66 1 going to work on. They're going to take it off, 2 the insulation contractors. That's our turbine. 3 But the plaintiff's case is we were 4 unreasonable for providing a warning about a 5 product we didn't make when practically everything 6 else has asbestos and that it was a significant 7 hazard to someone that no one considered to be 8 hazardous and that if we had provided a warning on 9 a turbine that somehow this would have changed what 10 he did, even though there were warnings already on 11 asbestos products, even though employers were 12 required and that somehow this warning would have 13 prevented his cancer even though he had 26-plus 14 year of working with asbestos for a few days, the 15 turbine. That's their case. 16 Okay. General Electric. Who are we? 17 Our founder, Alvin Edison, electrified this 18 country. We started the power lines that provided 19 power, provided generators that run trains. We 20 provided the equipment, turbines that ran those 21 ships in World War I and World War II. We provided 22 sites in our bombers. That's what we did. We had 23 the largest steam turbine, first x-rays. This is a 24 little bit about the company that she claims we 11:32:57 11:33:01 11:33:04 11:33:09 11:33:12 11:33:16 11:33:18 11:33:22 11:33:25 11:33:30 11:33:34 11:33:37 11:33:39 11:33:42 11:33:47 11:33:49 11:33:50 11:33:53 11:33:56 11:34:00 11:34:01 11:34:02 11:34:03 11:34:05 11:34:08 11:34:09 11:34:12 11:34:16 11:34:18 11:34:19 11:34:21 11:34:24 11:34:25 11:34:27 11:34:29 11:34:30 11:34:34 11:34:38 11:34:41 11:34:44 11:34:47 11:34:49 11:34:52 11:34:57 11:35:00 11:35:05 11:35:08 11:35:10 AUGUST 26, 2009 67 1 hid -- remember she said -- she had a cute little 2 picture. That's what she had. GE hid. That's 3 what she told you. Let's see what GE hid. 4 Here's what you're going to hear. In 5 1922, the founder of occupational health, Dr. Alice 6 Hamilton -- and, ladies and gentlemen, when we talk 7 about stepping back in time, being a female 8 professor at Harvard in 1922 in industrial hygiene, 9 pretty unusual, like the only one. Pretty amazing. 10 And what does GE do? They go hire her. GE says -11 the president goes to Alice Hamilton, said, "We 12 would like -- would you come and like a good 13 employer look at our plants, tell us what we need 14 to do. Give full reign, full access. You may look 15 at our plants and you tell us how to keep it 16 clean." 17 So she conducts the surveys. She 18 finds -- she's an independent consultant. Now, 19 1935, we're in a big depression, even bigger than 20 we are now. 21 MS. DEAN: Your Honor, we object to the 22 relevance. 23 THE COURT: Sustained. The jury should 24 disregard this comment about recession or economy 68 1 at all. 2 MR. FITZPATRICK: I'll take 1935. She leaves 3 GE, she conducts national surveys. They call her a 4 gum-shoe detective. She brings her Harvard 5 students -6 MS. DEAN: Your Honor, our objection is to the 7 relevance of GE's plants when the exposure happened 8 elsewhere, and believe they're opening the door to 9 bad things that happened there that -10 MR. FITZPATRICK: Judge, she is -11 THE COURT: That objection is overruled. 12 MR. FITZPATRICK: So they discover a case of 13 asbestosis, they do, and as a result, GE cleans up 14 their plant to say, "We've only had one case," and 15 then because of their actions, the State of 16 Pennsylvania adopts the GE actions and says, "This 17 is what we'd like all our plants to be." That's 18 GE. 19 What else does GE do? John Gimbel. He 20 contributes to one of the leading publications of 21 industrial hygiene. 1951, Dr. Sax publishes a book 22 that lists the TLV for asbestos for everyone to 23 see. That's what GE does. 24 John Grimaldi is appointed as a TRANSCRIPT OF PROCEEDINGS 11:35:13 11:35:15 11:35:18 11:35:24 11:35:25 11:35:28 11:35:31 11:35:34 11:35:36 11:35:39 11:35:42 11:35:45 11:35:50 11:35:52 11:35:55 11:35:58 11:36:00 11:36:08 11:36:11 11:36:15 11:36:19 11:36:21 11:36:24 11:36:26 69 1 representative. She mentioned the National Safety 2 Council. He wrote a book entitled "Safety 3 Management" for employers to use. 4 National Safety Council. She brought it 5 up. We agree. We were a founding member. The 6 mission was to exchange safety among manufacturers 7 throughout the world. We published articles. It 8 was so important, Congress recognized it as almost 9 an arm of the government in 1953. 10 Who belonged to it? Remember she said 11 we hid it, the big secret. The United States 12 Public Health, the U.S. Navy, the AFL-CIO, all the 13 unions, everybody belonged to this organization 14 which she claimed we hid information from. That's 15 what she claimed. 16 The National Safety Council even used a 17 GE cartoonist to write books for kids on safety, 18 and as the secretary of the Navy said, no industry 19 has responded as well as GE to help us defend this 20 country in World War II. That's what we did. 21 So, now, what when were the hazards 22 recognized? Remember she showed you the books. 23 She didn't show you anything. So here's what the 24 evidence is going to be. 11:36:28 11:36:31 11:36:33 11:36:36 11:36:40 11:36:42 11:36:46 11:36:49 11:36:54 11:36:57 11:36:59 11:37:03 11:37:07 11:37:08 11:37:11 11:37:13 11:37:15 11:37:20 11:37:25 11:37:29 11:37:31 11:37:34 11:37:38 11:37:42 70 1 In summary, why I'm pointing to all this 2 stuff, in 1930, there was a gentleman named 3 Merewether. He studied the textile industry where 4 they would weave the fiber into blankets, so these 5 people, if you think about it, are using pure 6 asbestos back in the '30s six, seven days a week, 7 10, 12 hours a day, no ventilation, and they said 8 if we get a level -- he proposed a TLV in 1930 9 which you will hear is anywhere from 3 to 35 times 10 higher than what we would even adopt. So they 11 proposed it to manufacturing plants, nobody else. 12 They passed regulations for textile factories and 13 they said, "This is safe." 14 And within two to three years after they 15 pass those regulations, the Brits are saying, 16 "These problems are a thing of the past. The 17 disease is under control." 1934. That's what 18 you'll see. That's the British experience. 19 So from '34 to '69, the Brits were no 20 longer concerned about asbestosis. They believed 21 the disease was under control, there are safety 22 regulations that apply to a textile plant, not to 23 end products and anyone using them, and they never 24 considered the possibility of low levels. 11:37:44 11:37:46 11:37:48 11:37:54 11:37:56 11:38:00 11:38:04 11:38:06 11:38:09 11:38:15 11:38:16 11:38:17 11:38:19 11:38:21 11:38:24 11:38:26 11:38:30 11:38:31 11:38:33 11:38:37 11:38:40 11:38:43 11:38:47 11:38:50 AUGUST 26, 2009 71 1 The plaintiff will tell you -- and what 2 they're doing is the level today and trying to 3 impose that on 1930. That's not what happened. 4 When were they recognized in this 5 country? Remember, we kept a secret is what she 6 said. 1938, the U.S. Public Health Service, the 7 Surgeon General, they did a similar study in the 8 textile plants in North Carolina. They came up 9 with a level of 5 mill is safe. 5 million 10 particles. 11 You'll say, "What does that mean?" 12 You'll hear testimony by an industrial hygienist -13 by the way, they are not going to call an 14 industrial hygienist, they don't have any, but 15 you'll hear what that level is. Suffice it to say, 16 it's about 500 times higher than what we now have, 17 because there's a level today. 18 But you'll hear they thought it was 19 safe. The Surgeon General, the American Conference 20 of Governmental Industrial Hygienists in 1946 and 21 up through the '60s would meet annually, and they 22 adopted it. The states would adopt it. The Navy 23 studied it and said it was safe. 24 It was revisited, the Department of 11:38:53 11:38:56 11:39:00 11:39:04 11:39:07 11:39:10 11:39:12 11:39:15 11:39:18 11:39:22 11:39:24 11:39:27 11:39:30 11:39:32 11:39:34 11:39:39 11:39:42 11:39:45 11:39:47 11:39:52 11:39:56 11:40:00 11:40:02 11:40:05 72 1 Labor adopted it, the government adopted it, all 2 saying it was safe, and a world conference finally 3 with Selikoff talked about when we've taken 4 measurements, it's been 5, and again, we're looking 5 at insulators. We're not looking at mechanics, 6 we're talking about people who live with this and 7 insulate day after day for a lifetime. 8 You'll see 5 million particles. This 9 goes on for years from '46 to the '60s. 10 You'll hear about why the Navy used 11 asbestos. There was nothing better. It was 12 lightweight. It allowed us to put more guns on to 13 help win the war. Here are the levels. 14 Now, remember I told you about 5 15 million. You'll see full surveys, band saw 16 cutting, cement mixing, you'll see total dust 17 counts and you'll see asbestos dust. Every one of 18 the asbestos dust counts in a shipyard where they 19 are swimming in this asbestos are below 5, and as a 20 result, the Navy concluded insulators were safe. 21 They kept using it. 22 Threshold value, maximum concentrations 23 which workers may be exposed to for an eight-hour 24 working day without injury to health, that's how TRANSCRIPT OF PROCEEDINGS 11:40:08 11:40:13 11:40:16 11:40:19 11:40:22 11:40:25 11:40:27 11:40:28 11:40:30 11:40:33 11:40:36 11:40:40 11:40:43 11:40:46 11:40:48 11:40:52 11:40:56 11:40:58 11:41:01 11:41:03 11:41:06 11:41:10 11:41:13 11:41:15 11:41:17 11:41:19 11:41:23 11:41:25 11:41:27 11:41:30 11:41:32 11:41:36 11:41:40 11:41:43 11:41:48 11:41:51 11:41:52 11:41:54 11:41:59 11:42:00 11:42:03 11:42:05 11:42:08 11:42:12 11:42:17 11:42:18 11:42:19 11:42:22 73 1 it's defined. Is it an absolute guarantee? No, 2 but that was the best science, what medicine had. 3 So the Public Health Service in '68 4 thought it was safe, the American Conference and 40 5 states adopted it, the medical/scientific 6 literature said it was safe. Everyone thought it 7 was safe. 8 Even Dr. Holstein, their expert -- we'll 9 talk about Dr. Holstein shortly -- agreed. There's 10 no criticism of this through the '60s. No 11 criticism by scientists saying, "This is bad." 12 How about cancer? What you will hear, 13 1949, the Journal of the American Medical 14 Association said, "Well, we've studied this over a 15 number of years, and there is potentially a risk if 16 you first get asbestosis, so if you keep levels 17 down and don't get asbestosis, you don't get lung 18 cancer, because you need the underlying asbestosis 19 to create a risk for lung cancer." 20 Again, what were they looking at? 31 21 deaths in 23 years. We were losing about a hundred 22 thousand people in that year to lung cancer. We've 23 got 31 deaths over 23 years, and they're making 24 that conclusion. That's fine. 74 1 And then they go over and check the 2 Brits, and the Brits said, "We don't even have a 3 hazard because of our levels. We believe there is 4 no lung cancer hazard." 5 Richard Doll you'll hear about, no 6 hazard. Now, the first time you will hear 7 mesothelioma mentioned is a gentleman by the name 8 of Wagner in South Africa published in 1960 a fiber 9 type called crocidolite. He said, "I'm beginning 10 to see this." J-M begins to put warnings on, 11 Mr. Mulcahy is promoted to a mechanic in '65, and 12 then Selikoff publishes. 13 And there will be no question, Selikoff 14 is the preeminent researcher. Dr. Holstein, their 15 expert, studied under him, and he will acknowledge 16 there is no one better than Selikoff. 17 There is the -- remember, she put up 18 that warning that had "Danger." Those are warnings 19 like in the '90s. Here's the warning in '64, 20 "Danger, asbestos may be harmful," on the cement, 21 the same thing, J-M cement, and here's Selikoff. 22 Here's what you're going to hear. 23 Remember she put all that, "We knew the 24 dangers and we killed people in the '30s, we hid 11:42:23 11:42:27 11:42:29 11:42:33 11:42:36 11:42:39 11:42:41 11:42:45 11:42:47 11:42:50 11:42:53 11:42:57 11:43:02 11:43:04 11:43:08 11:43:10 11:43:13 11:43:16 11:43:19 11:43:22 11:43:24 11:43:26 11:43:29 11:43:30 11:43:32 11:43:35 11:43:40 11:43:43 11:43:47 11:43:49 11:43:51 11:43:53 11:43:56 11:43:58 11:44:00 11:44:05 11:44:08 11:44:13 11:44:16 11:44:20 11:44:22 11:44:23 11:44:25 11:44:27 11:44:30 11:44:35 11:44:37 11:44:39 AUGUST 26, 2009 75 1 it." Selikoff says, "When we've taken dust 2 measurements, the dust counts are generally within 3 counts for asbestos fibers of 5 million particles. 4 So as of '65 -- and, by the way, he's 5 studying the union insulators. He's studying the 6 folks who are most exposed. He says, "When I'm 7 taking readings, it's still under 5. That's still 8 safe." 9 And they survey that literature that she 10 put up, and here's actually what it says: 11 Scattered case reports have been recorded about 12 cancers in insulation, lung cancer and meso, a lung 13 cancer was reported in a workman. These reports, 14 while interesting and valuable, could not establish 15 an association. 16 The preeminent expert in 1965 published 17 he didn't think there was an association. She put 18 up, "Oh, everybody knew by the '30s." That's how 19 people interpret literature. 20 The head of the American Cancer Society 21 says, "I believe nobody a few years ago would have 22 thought there was a lung cancer risk in insulation 23 workers." 24 Now, remember, all of these studies are 76 1 insulation workers. They are not mechanics who are 2 walking by, they are textile workers who make it 3 and are there all the time. We have insulation 4 workers who are using the end products that have 5 percentages of asbestos and then we have people who 6 occasionally walk by, that's the concern, and they 7 didn't even think insulators. Nobody thought. 8 So what does Selikoff do? He goes to 9 the union. He's obviously studying -- in '67, he 10 gives talks to their national conference, and he 11 says, "This is still safe." The man that their own 12 expert will claim was the preeminent authority, we 13 agree, he said, "Mesothelioma is so rare, I've only 14 seen 3 in 30 years in my hospital, and we have a 15 huge hospital. This is a hazard youjust keep the 16 dust levels down, you may keep working with the 17 project." 18 Selikoff, their expert, did not say, 19 "Run for the hills," did not say, "Stop." He's 20 telling his own workers, "You may keep working with 21 it. Keep the levels down. And I've yet to see a 22 lung cancer in someone who didn't smoke." 23 Smoking started coming out -- you 24 probably recall, at least if you're older, those TRANSCRIPT OF PROCEEDINGS 11:44:41 11:44:43 11:44:46 11:44:50 11:44:52 11:44:56 11:44:59 11:45:00 11:45:04 11:45:08 11:45:11 11:45:16 11:45:19 11:45:21 11:45:22 11:45:27 11:45:29 11:45:33 11:45:35 11:45:38 11:45:41 11:45:44 11:45:47 11:45:51 11:45:53 11:45:56 11:45:59 11:46:01 11:46:05 11:46:06 11:46:10 11:46:12 11:46:13 11:46:15 11:46:18 11:46:23 11:46:27 11:46:34 11:46:28 11:46:32 11:46:35 11:46:38 11:46:43 11:46:45 11:46:48 11:46:53 11:46:58 11:47:01 77 1 warnings were coming out in the mid '60s. 2 So you'll -- the evidence will show from 3 '49 to '68, there was no concern. The U.S. had the 4 same opinion. The risk was for textile workers, 5 low levels were never considered an issue, and 6 without underlying asbestosis, you were not at risk 7 for cancer. 8 OSHA, she mentioned, and it was good, 9 1970 comes out and Congress passes it. "We're 10 worried about personal injuries. We want to keep 11 people safe. Responsibility, declare it's a 12 national policy, we encourage employers and 13 employees, the Secretary of Labor provide medical 14 criteria." 15 This was passed as the law of the land. 16 Each employer shall do that. That's what employers 17 do. There's no suggestion that GE ought to walk in 18 someone's plant and tell them how to do their own 19 safety program because every employer has to follow 20 this. 21 They established new levels, 5 fibers, 22 you'll hear about that, which is about 80 percent 23 less than the one in the '60s, but it's still 500 24 times higher than what we have today. That's what 78 1 they called safe. 2 This is what they said to do, 3 concentrations, how to comply, put warning signs, 4 monitoring, medical exam and recordkeeping. This 5 is all what an employer would have to do. 6 Now, remember their allegation is, "Why 7 didn't they just put a warning to wear a 8 respirator? That's all you need to do." 9 That's the comprehensive program on how 10 to keep people safe. No one has disputed exposure 11 to asbestos in high -- this is '72 -- can cause 12 asbestosis and cancers. The dispute is to try to 13 find a level safe. They're still looking for safe 14 levels. 15 So NIOSH publishes and NIOSH indicates, 16 we have even put a safety factor. There is no 17 guarantee, but we believe this new level will also 18 protect against cancer. We are still using it. 19 So engineering controls, mandated 20 workplaces, employer surveillance. A warning does 21 not do that. That is what the evidence will be. 22 An employer warning sign. Companies who 23 made the product were required to put labels on it, 24 if you made it. The government never said, If you 11:47:04 11:47:06 11:47:08 11:47:13 11:47:16 11:47:19 11:47:20 11:47:24 11:47:26 11:47:26 11:47:28 11:47:31 11:47:34 11:47:38 11:47:39 11:47:42 11:47:45 11:47:48 11:47:51 11:47:53 11:47:56 11:48:00 11:48:05 11:48:08 11:48:08 11:48:13 11:48:15 11:48:19 11:48:23 11:48:31 11:48:33 11:48:37 11:48:39 11:48:42 11:48:46 11:48:48 11:48:52 11:48:55 11:49:00 11:49:02 11:49:06 11:49:06 11:49:07 11:49:12 11:49:12 11:49:14 11:49:16 11:49:17 AUGUST 26, 2009 79 1 didn't make it, warn about somebody else's product. 2 No. But if you make it, warn, and, Employers, you 3 have to keep your place safe. So that was already 4 in existence in '71. 5 Personal protective. And they said, by 6 the way, respirators, it's only -- well, compliance 7 with these may not be achieved by use of 8 respirators. In other words, you need to keep dust 9 levels down. If a respirator is going to be used, 10 it's temporary because you will hear people did not 11 like to wear respirators. No one likes to wear 12 them. So how do you avoid that? Keep levels down. 13 And employers know how to do that. They had to 14 establish the programs. 15 Caution signs had to be put up, and here 16 is what the government said about a warning sign. 17 By the way, I'm not for Crane, but what the 18 evidence is, they never had to warn. Nobody 19 thought gaskets were an issue. They used gaskets 20 into the '80s, but it says here, You have to put a 21 warning if you use the product exceeding our now 22 existing TLV. No warning is required if you have a 23 product that has been bonded or coated. He'll talk 24 about it. I'm not going to talk about his product. 80 1 They didn't even have to warn. The gaskets. 2 And here is the warning. That's it. 3 The same warning that Johns Manville put on in '64, 4 this is what the government says in '72 is a 5 reasonable warning. Caution, avoid creating dust, 6 breathing may cause harm. There will be no 7 evidence that any equipment manufacturer had to 8 warn about someone else's product. There were 9 warnings on it. Moreover, warnings are not how you 10 achieve things. You need a comprehensive program. 11 You will hear the union knowledge, the 12 IBEW, which Mr. Mulcahy was a member of. He was a 13 member of this. And what is the evidence? Their 14 ownjournals, 1971, Occupational Health -15 MS. DEAN: Your Honor, I'm going to object to 16 the relevance of this, knowledge of other 17 companies. 18 MR. FITZPATRICK: Your Honor, we went through 19 all of the journals. We had no objection to our 20 openings. 21 THE COURT: I'm going to allow this. 22 Where are you with time, 23 Mr. Fitzpatrick? 24 MR. FITZPATRICK: What, ma'am? TRANSCRIPT OF PROCEEDINGS 11:49:19 11:49:20 11:49:22 11:49:22 11:49:24 11:49:26 11:49:29 11:49:30 11:49:34 11:49:36 11:49:39 11:49:42 11:49:46 11:49:49 11:49:55 11:49:56 11:49:57 11:50:00 11:50:02 11:50:04 11:50:07 11:50:10 11:50:12 11:50:16 11:50:19 11:50:23 11:50:26 11:50:29 11:50:32 11:50:35 11:50:39 11:50:42 11:50:44 11:50:48 11:50:49 11:50:53 11:50:56 11:50:59 11:51:02 11:51:03 11:51:06 11:51:08 11:51:11 11:51:12 11:51:14 11:51:16 11:51:19 11:51:22 81 1 THE COURT: Your time? 2 MR. FITZPATRICK: I have about eight more 3 minutes. 4 THE COURT: Okay. Thank you. Overruled. 5 MR. FITZPATRICK: It says, The union is happy 6 we helped achieve it. What's the secret on 7 asbestos? They helped it. 8 Okay. The witness testimony. Ray 9 Rohder. We look forward to it. Turbine overhauls 10 every three years, he says. That is when you do an 11 overhaul, because the turbines work. Piping that 12 are located under that, you need a crane to pull it 13 off. I never recall seeing Mr. Mulcahy. I think 14 maybe he flipped a diaphragm, maybe he ran the 15 crane, but he never worked with insulation. That's 16 what Mr. Rohder says. And he would not maintain 17 the turbines, except for an outage, because you 18 have to take it off-line. So you have to look at 19 the turbines every three to five years. 20 Mr. Mazaika, he doesn't recall working 21 with Mr. Mulcahy. The outages were maybe every 22 year and a half to three. That is when you would 23 do it. Mechanics never had dealings with a GE 24 consultant, and the insulation is covered in a 82 1 steel sheet, and we use JM products. 2 Mr. Bolek, he barely worked with 3 Mr. Mulcahy. He said only major outages. Now, he 4 work at Joliet. He did not work at Crawford, but 5 we are going to see when he comes to testify where 6 did he work. He said, I think I saw him several 7 times, I used JM, and he remembers safety training. 8 Okay. Plaintiff's experts. You are 9 going to hear Mr. Brody -- Dr. Brody today. 10 95 percent of what he does is for the plaintiff. 11 He has done it for 20 years. He testifies 30 to 12 36 times a year. He charges $450. He makes about 13 $200,000 to $250,000 a year, and he has a script. 14 You will hear about his rat study. He 15 will talk about it. You will see a picture that is 16 about 20 years ago with his dark hair. It will be 17 there. You will hear about the rats and something 18 sweeping under the rug. That is what he does. He 19 does it all of the time. 20 Dr. Holstein. Here is their main 21 witness. He has done nothing but testify for the 22 plaintiffs. He makes about $150,000 to $300,000 a 23 year. What he did, he conducted mass screenings 24 for the lawyers. In other words, they bring them 11:51:25 11:51:28 11:51:30 11:51:33 11:51:35 11:51:37 11:51:39 11:51:41 11:51:45 11:51:47 11:51:48 11:51:51 11:51:54 11:51:59 11:52:01 11:52:04 11:52:07 11:52:11 11:52:15 11:52:19 11:52:24 11:52:26 11:52:29 11:52:32 11:52:35 11:52:39 11:52:39 11:52:41 11:52:45 11:52:49 11:52:53 11:52:55 11:52:58 11:52:58 11:53:02 11:53:08 11:53:11 11:53:14 11:53:17 11:53:23 11:53:26 11:53:28 11:53:31 11:53:34 11:53:36 11:53:39 11:53:41 AUGUST 26, 2009 83 1 out of state, which he did not have a license to 2 do. They bring in all of the members, and he finds 3 everyone has asbestos and then he goes back to the 4 state. That is what he does. 5 He testified for the plaintiffs 150 6 times in the last 20 years, hundreds of 7 depositions, and plaintiffs tried to get him to 8 testify before Congress. He has no hospital 9 privileges. He has not published. He has no 10 research. 11 This is what you will hear. He forgot 12 to renew his license for three years. He didn't 13 have a license. So he saw patients and made 14 diagnoses without a license. He testified at trial 15 that he will tell you that it was a mistake. Yes, 16 I swore under oath to a jury that I had a license, 17 but I didn't. I just forgot. So he testifies to 18 it. That is Dr. Holstein. 19 Dr. Mark, 99 percent of the time for the 20 plaintiff, makes up to $450,000 a year, and he will 21 testify and it's true, every exposure. He doesn't 22 know the level, he doesn't know the fiber, he 23 doesn't know what it was, but he will say that they 24 all contribute, but I can't support one article in 84 1 the entire world literature to support that 2 opinion. 3 You will hear about Dr. Betts, 30 years 4 in the Navy, occupational medicine, boarded 5 toxicologist, industrial hygienist. Those are his 6 certifications that you will hear about. 7 Paul Banaszewski, 30 years with the 8 turbines. You will hear him talk about how 9 turbines operate. And Marjorie Drucker. She will 10 talk to you about what was known in the GE files. 11 In summary, Mr. Mulcahy was a boiler 12 mechanic. His meso was caused by decades of 13 exposure, had nothing to do with the GE turbine. 14 There was no reason for any equipment manufacturer 15 to warn about a product they did not make, based on 16 the medical science at the time. And by '70 OSHA 17 requires employers and insulation manufacturers to 18 warn, not a company that did not make the product. 19 There will be no credible evidence he 20 was exposed to any significant amount of asbestos. 21 There will be no evidence that GE was unreasonable 22 for not putting on a warning, and there is no 23 warning that GE could have given that would have 24 changed this because he had already worked with it, TRANSCRIPT OF PROCEEDINGS 11:53:44 11:53:48 11:53:52 11:53:57 11:54:00 11:54:03 11:54:05 11:54:08 11:54:11 11:54:13 11:54:13 11:54:15 11:54:18 11:54:21 11:54:21 11:54:21 11:54:59 11:55:04 11:55:05 11:55:07 11:55:11 11:55:14 11:55:14 11:55:16 85 1 the warnings were already on JM, and the union and 2 OSHA already knew. 3 In sum, in this case GE, when you hear 4 the evidence, is not responsible for that 5 gentleman's death. That's what we will show, and 6 we will show it based on the science at that time, 7 not today, and we will show it through the 8 witnesses. And I thank you for your time. 9 THE COURT: All right. Thank you, 10 Mr. Fitzpatrick. 11 Mr. King. 12 MR. KING: Your Honor, if I could just have 13 hopefully 30, 60 seconds hopefully. 14 THE COURT: We will see. Sure. Go ahead. 15 OPENING STATEMENT ON BEHALF OF CRANE CO. 16 MR. KING: 17 May it please the Court, your Honor, 18 ladies and gentlemen of thejury. It is a pleasure 19 to speak with you again. As you recall, my name is 20 Jeff King, and together with Mike Schalk and Sue 21 Gunty, we represent Crane Co. and are vis-a-vis 22 here doing that. 23 Going last puts me at a little bit of a 24 disadvantage. I was prepared to cover some of the 11:55:16 11:55:19 11:55:24 11:55:27 11:55:29 11:55:32 11:55:33 11:55:34 11:55:39 11:55:41 11:55:44 11:55:47 11:55:47 11:55:49 11:55:52 11:55:55 11:56:00 11:56:02 11:56:06 11:56:08 11:56:12 11:56:16 11:56:17 11:56:19 86 1 topics that have already been addressed, so I will 2 do my best not to repeat, which might mean I have 3 to skip through a few slides, so I hope you will 4 bear with me if I skip through them. That is 5 trying to save some time here. 6 First, I would like to say good morning, 7 almost good afternoon, and, Ms. Mulcahy, you have 8 our sincere sympathies. It is a terrible thing. 9 This disease is terrible, but as you know in this 10 court, we have to keep sympathies out. And we have 11 a dispute to resolve, and that is what we are here 12 to do. 13 Now, I'm going to tell you a little bit 14 about Crane, the company, the product, and the 15 evidence that is going to come in regarding whether 16 there was any exposure to it at Com Edison for 17 which Crane Co. was responsible. Mostly, I'm going 18 to tell you a little bit about what actually caused 19 this disease. And I'm going to give you what I 20 like to call, Asbestos 101. What is the evidence 21 going to be that tells you what asbestos is, the 22 different fibers types, and why it's very important 23 to keep the fiber types and the type of product 24 that you are considering in your mind at all times 11:56:22 11:56:24 11:56:31 11:56:32 11:56:36 11:56:38 11:56:41 11:56:44 11:56:47 11:56:50 11:56:52 11:56:56 11:57:00 11:57:01 11:57:03 11:57:06 11:57:08 11:57:11 11:57:14 11:57:16 11:57:19 11:57:25 11:57:29 11:57:32 AUGUST 26, 2009 87 1 because the evidence is going to show you that not 2 all asbestos is alike. 3 We are going to hear a lot about the 4 Navy. Why? I'll tell you why we are going to hear 5 about the Navy. The evidence is going to be from 6 their medical doctors that the earlier exposures 7 are the most important exposures in the causation 8 of mesothelioma. You are going to hear that his 9 first exposures occurred in the Navy and his 10 heaviest exposures occurred in the Navy. You are 11 going to hear that his exposures in the Navy were 12 to the worse type of asbestos, the amosite type 13 that we are going to talk about. 14 So on a ship that is literally covered 15 with tons of asbestos, he starts his working life 16 for four years, and that is where the heaviest 17 exposures occurred, and that is what caused his 18 mesothelioma. That is why we are going to talk 19 about the Navy. 20 Crane Co. did not make the products that 21 caused Mr. Mulcahy's disease. It's very important, 22 Crane Co. did not manufacture insulation, Crane Co. 23 did not manufacture gaskets or packing. You heard 24 Ms. Dean say something about cranite. Cranite was CO CO 11:57:35 11:57:39 11:57:43 11:57:45 11:57:49 11:57:51 11:57:54 11:57:57 11:58:00 11:58:05 11:58:09 11:58:13 11:58:14 11:58:16 11:58:21 11:58:25 11:58:29 11:58:33 11:58:36 11:58:39 11:58:40 11:58:42 11:58:44 11:58:47 1 a product that was made by another company that 2 Crane sold and sometimes installed in some of its 3 valves. In this case, you are going to see the 4 documents that she's referring to. 5 I warn you to be very careful to pay 6 attention to this. Cranite is not an issue in this 7 case. Why? That document that she's going to show 8 you is going to say that Sargent & Lundy, the 9 design engineers, they told Commonwealth Edison, we 10 want you to install valves, piping, pumping, 11 turbines, boilers that meet the following 12 requirements. 13 And when they got to the packing line 14 and gasket line, what they said was, use cranite or 15 flexitallic or their equivalents. So what does 16 that mean? It means that cranite was one of the 17 approved gaskets that could be used. I trust the 18 evidence is not going to show that ever was. You 19 are not going to have evidence that actually 20 cranite was there. 21 Moreover, there's not going to be any 22 evidence from any witness, coworker, et cetera, 23 that Mr. Mulcahy ever worked with that product. So 24 they are going to -- I anticipate they are going to TRANSCRIPT OF PROCEEDINGS 11:58:51 11:58:54 11:58:56 11:58:59 11:59:02 11:59:06 11:59:11 11:59:16 11:59:17 11:59:20 11:59:24 11:59:24 11:59:28 11:59:31 11:59:34 11:59:36 11:59:39 11:59:42 11:59:45 11:59:53 11:59:57 12:00:00 12:00:04 12:00:07 12:00:09 12:00:12 12:00:15 12:00:19 12:00:23 12:00:27 12:00:28 12:00:30 12:00:31 12:00:33 12:00:36 12:00:37 12:00:40 12:00:42 12:00:46 12:00:49 12:00:52 12:00:55 12:00:59 12:01:02 12:01:04 12:01:07 12:01:10 12:01:13 89 1 focus on cranite, and you have to be very critical 2 of what you hear on that, please. 3 So amosite is what caused this disease, 4 and we are going to show that Mr. Mulcahy's 5 lifetime exposure to asbestos from Crane Co. is 6 insignificant and did not cause his illness. His 7 exposures to -- the substantial exposures were 8 dusty and more friable. 9 You are going to hear "friable." That 10 word means powdery, crumbly, falls apart when you 11 touch it. I like to think of a chalk, but even 12 lighter and fluffier than chalk. When you squeeze 13 this friable material, it changes to powder. That 14 is what the word "friable" means, and you are going 15 to hear that throughout this trial. 16 Whereas, gaskets and packing -- and let 17 me stop right there and tell you what gaskets and 18 packing are. This is a valve. This is a gate 19 valve. It's probably a 3-inch gate valve. Gaskets 20 are used when you put two pieces of metal together 21 that are not moving. You put this gasket material 22 between those two pieces of metal, and you squeeze 23 them together real hard so that there is no leaks 24 through that gap, through that joint. 90 1 It could be a leak of water, steam, 2 oxygen, whatever it is that is going through that 3 piping system, cold water, hot water, steam, fuel 4 oil, gasoline. A gasket prevents leaks between two 5 fixed pieces of metal that are bolted together. 6 Okay? These are examples of gaskets. You have 7 probably -- many of you have probably worked with 8 it. This is cork. That is one form of a gasket. 9 By the way, none of these have asbestos, not that 10 it would matter, because it's encapsulated, and 11 until this day asbestos gaskets are not banned. 12 There is no harm from them. 13 Cork. This is a gasket. This is a 14 paper-type gasket for a water pump for a car 15 engine. So you put this on the engine block, you 16 put the water pump to it, squeeze it together, and 17 there is no leaks. This is the one that you have 18 probably seen before. That is a water hose, garden 19 hose washer. That type of washer is a gasket. You 20 have the metal fitting at the end of the hose, you 21 have got your spigot. You don't want leaks there, 22 use one of these. This is a rubber gasket. So 23 that is what gaskets are. 24 Packing serves the same function, but 12:01:14 12:01:15 12:01:20 12:01:25 12:01:28 12:01:31 12:01:33 12:01:33 12:01:37 12:01:38 12:01:41 12:01:45 12:01:46 12:01:48 12:01:48 12:01:53 12:01:54 12:01:57 12:02:01 12:02:02 12:02:05 12:02:11 12:02:15 12:02:18 12:02:21 12:02:23 12:02:27 12:02:29 12:02:31 12:02:33 12:02:37 12:02:40 12:02:45 12:02:49 12:02:55 12:02:56 12:02:57 12:03:02 12:03:02 12:03:05 12:03:09 12:03:10 12:03:16 12:03:16 12:03:18 12:03:19 12:03:21 12:03:26 AUGUST 26, 2009 91 1 you use it in a different place on equipment. When 2 you have something that moves, in this case this 3 wheel spins this shaft, which raises the gate that 4 controls the valve. Well, you have a moving piece 5 of metal, that shaft, going through a hole in the 6 top of this valve. Whatever is going through this 7 system is going to squirt up through that gap. You 8 can't make it tight enough. If it was so tight to 9 prevent a leak, you would not be able to turn the 10 wheel. So what do you use? You use packing. 11 Packing is pliable, and it usually comes in a 12 ropelike situation. 13 I'll show you what that looks like. 14 This is a rope packing. The reason it is in the 15 bag is, it's graphite covered. Graphite is oily, 16 and I don't want to get it all over me and everyone 17 else. That is a piece of packing that would go in 18 probably a pretty large-sized valve. Packing is 19 used in pumps and all sorts of equipment. It goes 20 around big doors -- that would be a gasket. 21 It's used in pumps, for any rotary or 22 spinning type of connection. Valve here, sample 23 valve. Important about valves, valves do not need 24 to be insulated to work. It does not matter what 92 1 is going through that valve, it does not have to be 2 insulated. It's up to the user of the valve and 3 the owner of the facility to decide whether they 4 want to insulate that valve. 5 So I'm going to try to move fast through 6 some of the Navy issues. You need to understand 7 why there was so much insulation on that ship. The 8 reason was, the U.S. was at war. The ship he was 9 on was called DD-25 -- sorry --- DD-737, converted 10 to the DM-25. Built in 1944, in the middle of the 11 war. 12 The reason the numbers changed was 13 because originally it was sumner class destroyer. 14 The engineering plan and everything below deck was 15 basically the same, but before it was put into 16 service it was changed to be a minelayer. Hence, 17 the switch from DD to DM. So you are going to see 18 some documents that might say DM-25 or DD-737. 19 It's the same ship. 20 And a little bit of a location 21 connection. I did not know this until I did some 22 digging on the ship. This ship was called the 23 Shannon, and it's named after Harold Shannon, who 24 was born in Chicago in 1892 and he was in the TRANSCRIPT OF PROCEEDINGS 12:03:30 12:03:30 12:03:34 12:03:36 12:03:39 12:03:43 12:03:45 12:03:48 12:03:50 12:03:52 12:03:55 12:03:58 12:04:01 12:04:04 12:04:07 12:04:11 12:04:14 12:04:19 12:04:19 12:04:21 12:04:24 12:04:27 12:04:29 12:04:33 12:04:36 12:04:38 12:04:40 12:04:44 12:04:47 12:04:55 12:05:00 12:05:03 12:05:05 12:05:09 12:05:12 12:05:19 12:05:23 12:05:26 12:05:29 12:05:29 12:05:31 12:05:34 12:05:36 12:05:40 12:05:43 12:05:45 12:05:47 12:05:51 93 1 Marine Corps from 1913 to '43. Just a little bit 2 of interesting knowledge. 3 Very important about the presence on the 4 Shannon. Mr. Mulcahy was on from roughly March of 5 '48 to roughly March of '52. You are going to hear 6 evidence about what was going on, what he did on 7 that ship. Mr. Fitzpatrick already told you a 8 little bit about that. 9 One thing he did not mention to you was 10 there was a significant overhaul period. Overhaul 11 is when the ship goes into the shipyard, and they 12 basically revise stuff and fix everything that was 13 not quite working or do periodic maintenance. You 14 are going to hear evidence that during an overhaul 15 on a ship, insulation, large quantities of 16 insulation are ripped out and reinstalled and that 17 the exposure to amosite during this massive repair 18 project are huge. 19 And you will see some of the numbers 20 that show you how high these exposures were in 21 enclosed machinery spaces, and Mr. Mulcahy was on 22 board this ship during an overhaul that started in 23 December of '51 and ended right after he got out of 24 the Navy. So he was on board for three to 94 1 four months during this overhaul. 2 And you will also hear that a boiler 3 tender, boiler technician on a ship of this type, 4 at this time, spent his working day in the 5 machinery spaces below deck and in an encased steel 6 room that is full of asbestos. Here is a little 7 bit about boiler tenders. You heard about that. 8 The Navy made the decision to use 9 asbestos for its ships. Why? Why did they need 10 it? The reason asbestos came to be used on ships 11 in such vast quantities stems from the Morro Castle 12 fire. Morro Castle burned off the coast of 13 New Jersey in 1934. 137 people died, and it washed 14 up on the jersey shore, and here it is after the 15 fire. 16 International convention. How do we 17 prevent these fires? The decision was asbestos. 18 Asbestos is the best way to prevent fires on a 19 ship. That is what led to the use of asbestos in 20 such vast quantities on every ship built. 21 Why? Lightweight. We told you about 22 that. I believe you heard that earlier. Very 23 light. It had incredibly strong insulating 24 properties, and if a ship can save weight, they can 12:05:54 12:05:56 12:05:59 12:06:03 12:06:05 12:06:09 12:06:13 12:06:13 12:06:15 12:06:16 12:06:22 12:06:26 12:06:27 12:06:27 12:06:30 12:06:33 12:06:35 12:06:38 12:06:41 12:06:43 12:06:46 12:06:51 12:06:53 12:06:56 12:06:59 12:07:04 12:07:06 12:07:10 12:07:11 12:07:13 12:07:16 12:07:19 12:07:27 12:07:27 12:07:30 12:07:33 12:07:34 12:07:37 12:07:39 12:07:41 12:07:45 12:07:48 12:07:52 12:07:54 12:07:59 12:08:02 12:08:04 12:08:04 AUGUST 26, 2009 95 1 put the weight elsewhere. 2 Meaning, missiles, bombs, ammunition, 3 guns, armor, thicker steel plates. The less weight 4 they had to consume with insulation materials, the 5 stronger, faster, more heavily armed ship that they 6 could build. So the lightweight is very important. 7 Heat and fire resistant. I just told you about 8 that. 9 Water resistant. They are in the ocean, 10 so being impervious or resistant to mold, mildew, 11 and rot was very important. Asbestos was great at 12 all of that. 13 And the Navy knew of -- as everyone else 14 in the industry, medical-scientific communities, 15 they knew of what the hazards were of asbestos, but 16 they also knew how to control it. And they said, 17 We can live with this, put it on the ship, we need 18 it there, and they did. 19 You will hear some evidence that the 20 Navy knew as much or more than anyone else about 21 the harms of asbestos and said, We can still live 22 with this. Let's put it onboard the ship. 23 And I'll get to it in a minute, very 24 significant, that nobody in the medical, 96 1 scientific, industrial and military communities 2 thought that gaskets and packing were harmful at 3 any time relevant to this case, and I'll show you 4 those in a minute. 5 Okay. You know the ship was full of 6 asbestos. Working on a ship created a lot of dusty 7 conditions, high fiber counts, especially during 8 the overhauls. Asbestos thermal insulation would 9 flake -- and you will get this from experts -10 during the firing of guns and regular pounding of 11 the ship. Even in his berthing space, which is 12 where they sleep, and in the mess halls, as the 13 ship was going through the water, asbestos fibers 14 were being released into the air. 15 You are going to hear that the fiber 16 content on board a ship is higher than anywhere 17 else in industrial America, very, very high levels, 18 especially during the overhauls. 19 It's all over the ship. There is some 20 piping. You saw this. I'm not going to belabor 21 this. Note, though, there that valve is not 22 insulated. Asbestos all around. The valve is not 23 insulated. It's very important because in the 24 industry and in the Navy, valves did not have to be TRANSCRIPT OF PROCEEDINGS 12:08:07 12:08:10 12:08:12 12:08:15 12:08:18 12:08:23 12:08:27 12:08:30 12:08:33 12:08:37 12:08:41 12:08:43 12:08:47 12:08:49 12:08:52 12:08:54 12:08:56 12:08:59 12:09:01 12:09:02 12:09:04 12:09:11 12:09:12 12:09:17 97 1 insulated and sometimes weren't. You saw pictures 2 like that, sleeping space, engineering space. A 3 little more detail about the amount on this ship. 4 I will have a document to show you this. 5 Sumner class destroyer had over 34 tons. That's 6 68,000 pounds of asbestos insulation in the 7 machinery spaces alone. Those are machinery spaces 8 where Mr. Mulcahy worked. Subgroups under that, 9 amosite felt. That is a cloth made with this 10 amosite material that you heard about, and 20 tons 11 of pipe covering. Pipe covering are -- think of a 12 straw. Slice the straw down the middle and then 13 put it around another straw. That outside straw is 14 your pipe covering. It could be an inch think, it 15 could be 4 inches thick. It's a half-moon shape. 16 They put it around pipes and then they seal it up, 17 and that is the insulation on pipes. You will hear 18 pipe covering a lot. That is what we are referring 19 to. 20 In addition to the insulation and 21 amosite inside the machinery spaces, that ship had 22 27,000 pounds of asbestos outside of the machinery 23 spaces, where everyone else slept, ate, work. 24 Now Com Edison. You are not going to 12:09:19 12:09:22 12:09:26 12:09:27 12:09:30 12:09:31 12:09:33 12:09:36 12:09:39 12:09:43 12:09:45 12:09:50 12:09:54 12:09:57 12:10:03 12:10:05 12:10:06 12:10:09 12:10:12 12:10:16 12:10:16 12:10:19 12:10:21 12:10:24 98 1 hear evidence about exposure to Crane or that Crane 2 has any liability to the Navy, but what plaintiff 3 told you is that they are looking to hold Crane 4 responsible for Mr. Mulcahy's exposures at the 5 ComEd plants. 6 Here is what you are going to hear about 7 ComEd as it pertains to Crane. First of all, I 8 told you that we did not -- Crane did not 9 manufacture insulation or gaskets or packing. 10 Let's start with insulation. There is going to be 11 no evidence in this case that Crane supplied any 12 insulation that made it into the ComEd facility. 13 Therefore, Mr. Mulcahy was not exposed to any 14 insulation that Crane Co. sold to ComEd. Keep your 15 eyes and ears open to that. There was no evidence 16 of that. 17 Gaskets and packing. I should start, we 18 do not dispute that there are were Crane valves at 19 these facilities. There definitely were. How 20 many, where they were located, whether Mr. Mulcahy 21 worked on them, that is a question and we are going 22 to hear evidence on that, but we don't dispute that 23 there were valves there. And we also don't dispute 24 when the valves were initially sold to these 12:10:27 12:10:30 12:10:34 12:10:36 12:10:40 12:10:43 12:10:48 12:10:50 12:10:53 12:10:56 12:10:59 12:11:02 12:11:06 12:11:09 12:11:12 12:11:16 12:11:20 12:11:24 12:11:26 12:11:29 12:11:31 12:11:33 12:11:36 12:11:39 12:11:41 12:11:44 12:11:47 12:11:50 12:11:52 12:11:55 12:11:59 12:12:01 12:12:02 12:12:05 12:12:09 12:12:11 12:12:14 12:12:18 12:12:21 12:12:24 12:12:26 12:12:31 12:12:35 12:12:38 12:12:41 12:12:43 12:12:45 12:12:48 AUGUST 26, 2009 99 1 facilities in the late '50s, when they were being 2 built, they may have contained asbestos-containing 3 gaskets and packing. May have. 4 If Sargent & Lundy had required it and 5 ComEd ordered it as such, fine. The valve might 6 have made it to that facility originally containing 7 asbestos gaskets and packing. However, due to 8 normal maintenance and repair that gasket and 9 packing is changed out. Whether it's after a day 10 of operation, a leak develops or six months or a 11 year after normal maintenance, this stuff wears out 12 and is replaced. No one will dispute that. 13 You are going to hear no evidence that 14 Mr. Mulcahy was exposed to those original materials 15 that Crane sold with these valves. He did not get 16 to these facilities until years after those valves 17 had been installed. The coworkers, not one of them 18 is going to tell you that they thought he was 19 exposed to original gaskets and packing. They are 20 all going to tell you, we could not tell what we 21 were pulling out and it was changed very 22 frequently. So, therefore, you can't tell whether 23 it was original. 24 Three coworkers may show up, and I want 100 1 you to listen very critically to what they say 2 because it's one thing when the evidence comes in 3 to say there were Crane valves there, but you can't 4 stop there. You have to listen very, very 5 carefully and answer the questions. Was he exposed 6 to original materials that Crane supplied? And I'm 7 going to suggest the evidence is going to tell you 8 no. 9 You are also going to be asked, Well, 10 did Crane supply replacement gaskets and packing? 11 The answer to that one is also going to be no. 12 Mr. Bolek, if he shows up, he's going to say, Sure, 13 I remember repacking valves, take the old packing 14 out, put the new packing in. I remember doing that 15 with Mr. Mulcahy. Okay. We don't dispute that. 16 He's going to say, But I don't know if 17 Mr. Mulcahy ever worked on a Crane Co. valve. He 18 also doesn't know if -- at Joliet, one facility. 19 He also says, I also don't know if there were any 20 Crane Co. valves at the Will County facility, which 21 is Mr. Mulcahy's home facility. 22 You should know they had a home facility 23 but occasionally worked at other facilities, if 24 they moved and shifted assignments or were doing a TRANSCRIPT OF PROCEEDINGS 12:12:51 12:12:52 12:12:54 12:12:56 12:12:58 12:13:01 12:13:05 12:13:10 12:13:13 12:13:18 12:13:22 12:13:24 12:13:27 12:13:28 12:13:33 12:13:34 12:13:39 12:13:41 12:13:43 12:13:45 12:13:47 12:13:51 12:13:55 12:13:56 12:13:58 12:14:00 12:14:02 12:14:04 12:14:05 12:14:07 12:14:10 12:14:12 12:14:17 12:14:21 12:14:26 12:14:27 12:14:30 12:14:32 12:14:36 12:14:40 12:14:44 12:14:47 12:14:49 12:14:51 12:14:56 12:15:00 12:15:05 12:15:08 101 1 repair outage. But his home facility was Will 2 County. Mr. Bolek will tell you, I don't know if 3 Crane Co. valves were at that facility. 4 Mr. Rohder, I hope I'm pronouncing his 5 name properly, he doesn't know how often 6 Mr. Mulcahy worked on Crane Co. valves. He will 7 mention packing -- sorry. Crane packing and he 8 clarifies it. What he means -- and he says this in 9 his prior testimony and he'll say it on the 10 stand -- "I know I said Crane, but what I meant was 11 a different company called Crane Packing Co." I'll 12 show you a slide that shows the distinction. It's 13 unfortunate that we have to confront this issue, 14 but there is another company out there named Crane 15 Packing Company. We're John Crane. They made 16 gaskets and packing, and unfortunately, we shared a 17 common name, so we have to be very careful which 18 company we're talking about. He clarifies, "I'm 19 talking about the other company." 20 He doesn't recall seeing Mr. Mulcahy 21 working on any valves that had flanges. Remember I 22 talked about internal gaskets and packing? There's 23 one other place you might have gaskets, and that's 24 out here where the pipe connects, and four bolts 102 1 would go in there and squeeze them together. 2 He doesn't recall Mr. Mulcahy working on 3 any flanges. In fact, he says most valves or many 4 of the valves are welded, and if they're welded, 5 there's no flange. 6 Mr. Mazaika, he says, "The packing we 7 used was John Crane --" that's the other company -8 "Chesterton and Garlock and the valves usually were 9 insulated." It's an important point. 10 Okay. There's going to be evidence that 11 significant exposure to these products are what 12 caused the disease both in the Navy and at Com Ed. 13 Particularly in the Navy, you're going to hear from 14 their experts that when he left the Navy, he 15 already had enough exposure for the disease to 16 start. He basically had mesothelioma starting 17 based on his naval exposure. 18 All right. A little bit about Crane Co. 19 I think I mentioned yesterday that Crane Co. 20 originated in Chicago over 150 years ago. It makes 21 industrial valves and equipment. Crane Co. is 22 people, assembly line workers, clerks, engineers, 23 secretaries, mailroom workers, drivers, et cetera. 24 It's a companyjust like any other. 12:15:10 12:15:12 12:15:15 12:15:18 12:15:23 12:15:27 12:15:29 12:15:31 12:15:34 12:15:43 12:15:45 12:15:47 12:15:50 12:15:53 12:15:56 12:15:58 12:16:01 12:16:04 12:16:07 12:16:08 12:16:10 12:16:11 12:16:15 12:16:19 12:16:21 12:16:23 12:16:25 12:16:28 12:16:31 12:16:33 12:16:35 12:16:37 12:16:40 12:16:43 12:16:45 12:16:47 12:16:50 12:16:51 12:16:54 12:16:56 12:16:58 12:17:01 12:17:03 12:17:05 12:17:07 12:17:12 AUGUST 26, 2009 103 1 We made metal valves. We sometimes 2 installed gaskets and packing depending on what was 3 ordered and purchased. Crane Co. never mined, 4 milled or manufactured asbestos product. The most 5 it did is it possibly included them inside a valve. 6 Different types of valves. I want to go 7 through this very quickly. You need to be aware of 8 this, because just because someone's working on a 9 Crane valve doesn't mean that valve has gaskets or 10 packing associated with it. 11 There are different types of valves. I 12 showed you this -- this is a cutout. The two 13 things that are highlighted in yellow are where the 14 packing would go on this gate valve, and that's -15 up top, as I showed you, is where the stem is 16 spinning, and in this case, there's a bonnet 17 gasket, which you can see where that horizontal 18 line is where that is bolted down to the top valve. 19 In addition, you might have the flange 20 gaskets on the outside, which Crane Co. did not 21 supply those valves. That's where the packing 22 gaskets are located. 23 Many different types of connections. 24 Not all valves require flange -- gaskets at all. 104 1 If they're bolted, they might; if they're welded, 2 if there was pressure fitting, if they're 3 screw-fitted, they don't require gaskets. 4 So just because it's a valve does not 5 mean there's automatically a gasket associated. 6 The same with a bonnet. There might not be a 7 gasket on the bonnet. 8 Why is this important? Not all valves 9 had internal gaskets, not all valves had stem 10 packing. Some valves didn't have a spinning wheel. 11 There was a closed stop-check valve that did not 12 have a wheel. If there's no spinning wheel, 13 there's no need for packing. 14 Not all valves used a gasket on the 15 internal connections and not all valves contained 16 packing and gaskets that had asbestos in them. 17 There were alternatives out there. You just 18 supplied whatever the customer ordered. In this 19 case, Sargent & Lundy specified that Com Ed was to 20 use certain types of valves. 21 Crane Co. never believed there was a 22 need to warn about the valves that contained 23 gaskets or packing -- asbestos gaskets or packing, 24 and as I mentioned earlier, they were changed out TRANSCRIPT OF PROCEEDINGS 12:17:14 12:17:18 12:17:18 12:17:21 12:17:24 12:17:27 12:17:32 12:17:34 12:17:36 12:17:38 12:17:40 12:17:43 12:17:45 12:17:47 12:17:50 12:17:52 12:17:55 12:17:57 12:18:02 12:18:04 12:18:08 12:18:11 12:18:12 12:18:17 105 1 many times before Mr. Mulcahy ever worked on a 2 Crane Co. valve. 3 Here's the slide I was referring to. 4 Crane Co., Crane Company, is not John Crane and 5 Crane Co. is not Crane Packing Company. That's one 6 of the labels from one of their packing products. 7 You see at the bottom "Crane Packing Company." 8 That's where the confusion arises. Please, I ask 9 you to keep that clear in your mind. 10 A little bit about asbestos. You heard 11 it's a rock or mineral mined from the earth. 12 That's a mine in California. 13 Multiple uses throughout the years. I 14 won't read through them, many, many uses. Although 15 the one I do like telling you about and the 16 evidence will be this stuff was used in so many 17 different uses, it was even in the snow that was 18 used in theaters. Any of you know the Bing Crosby 19 movie from 1954, White Christmas? That's the snow 20 coming down outside the barn when it opens up. The 21 Wizard of Oz, snow in the poppy field? That was 22 asbestos, as well. 23 It's still used today, all right? We 24 are exposed to ambient and background asbestos 12:18:20 12:18:22 12:18:24 12:18:27 12:18:29 12:18:30 12:18:31 12:18:34 12:18:37 12:18:39 12:18:42 12:18:44 12:18:44 12:18:46 12:18:49 12:18:53 12:18:55 12:18:57 12:18:59 12:19:02 12:19:04 12:19:06 12:19:10 12:19:15 106 1 everywhere. It's in every one of our lungs. 2 You're going to hear that -- I'll get to the dose 3 issue in just a minute -- but what is not in use 4 today is that heavy quantities of amosite 5 insulation. 6 There are other restrictions on what's 7 not used, but the biggest one that's relevant to 8 this case that's been excluded is that insulation 9 material, because that's what causes disease. 10 I'm not going to read this. That's why 11 the asbestos is used. We talked about that 12 already. 13 All right. This is very important. 14 You're going to hear a lot from all the experts on 15 both sides, plaintiff's experts and defense 16 experts, about the different fibers. 17 These are the three most common fibers. 18 There's at least six that are out there, but these 19 are the three you're going to hear about. Keep the 20 one on the left separate from the two the right. 21 The one on the left is chrysotile. It's 22 part of what's called the serpentine family, okay? 23 They're curly. The two the right, the amosite and 24 crocidolite, those are grouped into a group called 12:19:17 12:19:22 12:19:24 12:19:27 12:19:29 12:19:32 12:19:32 12:19:35 12:19:38 12:19:40 12:19:44 12:19:47 12:19:49 12:19:55 12:19:59 12:20:01 12:20:05 12:20:08 12:20:09 12:20:13 12:20:15 12:20:18 12:20:21 12:20:25 12:20:29 12:20:30 12:20:31 12:20:34 12:20:36 12:20:40 12:20:43 12:20:45 12:20:48 12:20:51 12:20:54 12:21:01 12:21:04 12:21:08 12:21:12 12:21:14 12:21:16 12:21:19 12:21:23 12:21:25 12:21:29 12:21:30 12:21:32 12:21:35 AUGUST 26, 2009 107 1 the amphiboles. Serpentine, amphiboles. 2 You're going to hear the word "amosite" 3 thrown about because that is typically what's in 4 insulation. Crocidolite is a version of the 5 amphibole, and you heard it mentioned it was in gas 6 masks. 7 Those two on the right are deemed very, 8 very, very toxic, okay? Not one of the experts are 9 going to disagree with that. They might disagree 10 on the ratio of just how much worse is crocidolite 11 and amosite and chrysotile, but no one is going to 12 dispute that the ones on the right there are really 13 nasty. The numbers are as high as 500, 800 to 1 in 14 toxicity, meaning you'd need 800 fibers of 15 chrysotile to have the same risk associated with 16 one fiber of crocidolite. That's the relative 17 risk, okay? 18 To keep them clear, if you can remember 19 this, I like to think of the "ites." Keep those 20 together, the two "ites." It sounds like spike. 21 The characteristics of those two on the side, 22 they're dagger-like, they're sharp, they're 23 straight. The one on the left, serpentine, it's 24 snake like, spiral curly fiber. It's very 108 1 important distinctions here. 2 Look at what I have done here 3 highlighted in red. Those are the chemical 4 formulas for these compounds, for these three 5 versions of asbestos fiber. The "ites," the 6 amphiboles have "Fe." That's iron in it. The 7 doctors are going to tell you why that's 8 significant. That's significant because it impacts 9 what it does in the body and how it stays in the 10 body, and that's why chrysotile is not as toxic. 11 That's one of the reason why it's not as toxic. 12 The type of asbestos used in gaskets was 13 chrysotile, okay? And it was encapsulated. It's 14 not a loose fiber; it was embedded in binder, 15 rubbers, et cetera. It looks like much like what 16 you see here (indicating). This is just plain 17 cork, but this could just as well be 18 asbestos-containing gasket. Encased. 19 Composition, I told you about the iron, 20 it's in the amphiboles, not chrysotile. Here's 21 some additional differences. 22 In the breathing process, chrysotile 23 breaks into small pieces. It's brittle and spiral. 24 It breaks down smaller, smaller, smaller, TRANSCRIPT OF PROCEEDINGS 12:21:37 12:21:39 12:21:43 12:21:44 12:21:47 12:21:49 12:21:51 12:21:54 12:21:57 12:21:59 12:22:02 12:22:04 12:22:07 12:22:11 12:22:15 12:22:19 12:22:21 12:22:26 12:22:29 12:22:31 12:22:33 12:22:35 12:22:38 12:22:41 12:22:44 12:22:46 12:22:49 12:22:51 12:22:54 12:22:57 12:23:00 12:23:02 12:23:05 12:23:07 12:23:09 12:23:13 12:23:13 12:23:15 12:23:19 12:23:22 12:23:24 12:23:27 12:23:30 12:23:32 12:23:35 12:23:38 12:23:41 12:23:42 109 1 significant because longer fibers are more 2 dangerous. Chrysotile breaks down to little fibers 3 very easily. 4 Clearance. Clearance mechanisms clear 5 stuff out of your body. You're going to hear that 6 chrysotile clears more readily. 7 Persistence, very important. There's a 8 concept called half-life, and it's how much time 9 does it take for half of the material that you have 10 in your body to disappear. So if you have a 11 thousand of something in your body, how long does 12 it take to go down to 500? Well, the half-life for 13 chrysotile fibers is measured in days and weeks, 14 but the half-life for the "ites," the amphiboles, 15 amosite, crocidolite, is measured in months or 16 years or longer. Once they get in, they're 17 staying. That's the difference between the fibers. 18 Mr. Fitzpatrick mentioned dose, that the 19 poison is in the dose. You're going to hear that 20 phrase all the time. 21 Asbestos diseases are all dose 22 dependent, all right? Small doses are not 23 dangerous. We all have fibers in our lungs right 24 now, and not everyone here -- hopefully no one here 110 1 has any asbestos-related disease. That's because 2 those fibers are not causing the disease. 3 At some point -- we don't know at what 4 point, but at some point there's enough in a body 5 to trigger a disease reaction. 6 A couple examples. Aspirin, take two 7 for a headache, it's not going to kill you, that's 8 fine, but if you go home tomorrow night and down 9 two bottles of aspirin, you're going to be dead. 10 That's because the poison is in the dose. Your 11 body can handle two aspirin, it can't handle 200, 12 okay? 13 There's multiple examples of that. 14 Sunlight. A little sunlight's good for you, a lot 15 is going to cause sunburn and possibly skin cancer, 16 and we can go on and on about examples. Water, 17 your body needs water, but you can die if you drink 18 too much water. That's another example. 19 So why is all this significant? Because 20 of the gaskets and packing contain the least toxic 21 fiber and because it's encapsulated, you're going 22 to hear from the industrial hygienist that the 23 amount of fibers that are potentially released from 24 gaskets and packing that are worked with are so 12:23:44 12:23:47 12:23:52 12:23:55 12:23:57 12:24:00 12:24:03 12:24:05 12:24:07 12:24:10 12:24:12 12:24:15 12:24:18 12:24:20 12:24:23 12:24:25 12:24:28 12:24:30 12:24:33 12:24:36 12:24:37 12:24:39 12:24:42 12:24:44 12:24:47 12:24:48 12:24:50 12:24:52 12:24:52 12:24:55 12:24:57 12:25:00 12:25:02 12:25:05 12:25:09 12:25:11 12:25:12 12:25:13 12:25:16 12:25:19 12:25:21 12:25:25 12:25:27 12:25:29 12:25:32 12:25:35 12:25:40 12:25:45 AUGUST 26, 2009 111 1 small that -- this becomes very important -- you're 2 not going to get enough exposure of enough 3 toxics -- toxic-type fiber to make any exposure to 4 working on gaskets and packing causative to the 5 disease. It's just not going -- it doesn't 6 contribute. It's so minor, it's like taking an 7 aspirin. 8 Scientific evidence is going to show not 9 all exposures are harmful. Background levels are 10 everywhere, even in Illinois. The poison is in the 11 dose. You must have sufficient exposure for that 12 exposure to be causative, and the evidence is going 13 to be gaskets and packing do not give you that 14 sufficient dose. 15 I think I covered that. Because of 16 those factors, though, there's no duty to warn. If 17 the product can't cause the disease and no one 18 takes or should have known it causes a disease, how 19 can you warn about a disease that you could never 20 have fathomed it could cause? 21 To this day, science -- there's a 22 dispute today, but today, there are many who still 23 believe gaskets and packing cannot cause this 24 disease. I'm going to put this evidence in front 112 1 of you. It can't cause that disease. 2 So if that's your belief, how do you 3 have a duty to warn about a disease that you 4 believe it doesn't cause? 5 State of the art. I mentioned this 6 during the questioning yesterday. You need to put 7 yourself back. What was acceptable in the '40s and 8 '50s? A young child sitting in the front seat of a 9 car without a seat belt, that was perfectly 10 acceptable. You would never accept that today. In 11 fact, it's illegal. Today they've got to be in the 12 back seat, right? 13 That's what you need to put your mindset 14 in. Put yourself back in time, what was acceptable 15 in the '40s, '50s when this plant was being built, 16 because that's what you have to view and judge 17 Crane Company's conduct and behavior, not what we 18 know today. 19 Very important about gaskets and 20 packing. These studies, some of them are in the 21 Navy, some are not. All concluded that gaskets and 22 packing were safe. The Rieblet memo was a Navy 23 memo from 1968. Mr. Mulcahy is already working for 24 ten years at the Com Ed plants, and what is one of TRANSCRIPT OF PROCEEDINGS 12:25:48 12:25:48 12:25:50 12:25:52 12:25:57 12:26:00 12:26:02 12:26:03 12:26:07 12:26:10 12:26:18 12:26:19 12:26:22 12:26:25 12:26:28 12:26:31 12:26:33 12:26:36 12:26:39 12:26:44 12:26:44 12:26:46 12:26:49 12:26:52 113 1 the biggest industrial, most knowledgeable medical 2 and scientific community, the U.S. government, U.S. 3 military saying? Safe. 4 P.G. Harries you're going to hear about, 5 Bremerton study, 1978, Mr. Mulcahy has been working 6 for 20 years. This is a study in a shipyard. 7 Gaskets and packing are safe. 8 The preeminent researcher on asbestos, 9 Dr. Selikoff, we're going to hear a lot about him, 10 his book in 1978 says gaskets and packing are safe. 11 That's a little bit about the Rieblet 12 memo. We'll talk about that during the trial. 13 That's the Selikoff & Lee book. 14 Quickly on our experts, you can't 15 predict exactly who's going to come because it 16 depends on how schedules play out and exactly who's 17 needed, but we may see some or all of these. I'm 18 just going to go through them very quickly. 19 Admiral Sargent, retired rear admiral, 20 commanded while he was in the Navy the engineering 21 side of the house. He's going to tell you about 22 the quantities of asbestos on the ship, he's going 23 to tell you what the firemen and boiler tenders 24 would have been doing on that ship and how the 12:26:55 12:26:59 12:27:00 12:27:03 12:27:05 12:27:08 12:27:11 12:27:13 12:27:16 12:27:18 12:27:20 12:27:21 12:27:23 12:27:25 12:27:28 12:27:32 12:27:35 12:27:37 12:27:39 12:27:42 12:27:44 12:27:47 12:27:50 12:27:53 114 1 products and the insulation were worked with and 2 manipulated on that ship. 3 Dr. Forman, Dr. Forman was under orders 4 by the Navy to find out what the Navy knew about 5 the harms of asbestos. He's going to tell you that 6 the Navy knew as much as anyone, and here's what 7 was known about asbestos and the harms, and he's 8 going to tell you what was not known about gaskets 9 and packing or what the state of the knowledge was 10 on gaskets and packing; that is, that they were 11 safe. 12 He's also going to tell you that there 13 were precautions that could have been implemented 14 and would have prevented Mr. Mulcahy from being 15 exposed to asbestos on the Navy but they just 16 weren't implemented leading to his exposure. 17 Dr. Graham is a doctor of pathology. 18 He's going to tell you about the difference in the 19 fiber types and why the chrysotile fibers and 20 exposures from gaskets and packing do not 21 contribute to this disease. 22 Donna Ringo, certified industrial 23 hygienist. A industrial hygienist studies toxins 24 in the workplace. They're the people who go out 12:27:57 12:27:59 12:28:02 12:28:05 12:28:07 12:28:09 12:28:13 12:28:15 12:28:19 12:28:23 12:28:25 12:28:28 12:28:30 12:28:31 12:28:35 12:28:38 12:28:41 12:28:43 12:28:45 12:28:50 12:28:53 12:28:57 12:28:58 12:28:59 12:29:02 12:29:05 12:29:09 12:29:13 12:29:16 12:29:18 12:29:20 12:29:23 12:29:25 12:29:26 12:29:28 12:29:30 12:29:32 12:29:35 12:29:38 12:29:40 12:29:42 12:29:45 12:29:49 12:29:51 12:29:54 12:29:57 12:29:59 12:30:02 AUGUST 26, 2009 115 1 and say what is dangerous and what isn't and how 2 dangerous is this and how much exposure is this one 3 person experiencing and what do we need to do to 4 protect them. She's done real-world studies and 5 she's going to tell you gaskets and packing do not 6 release harmful levels of asbestos. 7 Charles Blake, certified industrial 8 hygienist, will tell you about the knowledge that's 9 out there in industry, commercial side, of the 10 harms of asbestos, and he will tell you gaskets and 11 packing are not friable and that they do not cause 12 this disease. 13 Please remember, the plaintiff has the 14 burden of proof. Keep an open mind. There's two 15 sides to every story. I know there's a Paul Harvey 16 joke, and I think that's been used a couple times. 17 Keep in mind the evidence is going to 18 show there's nothing Crane Co. could have done to 19 change Mr. Mulcahy's exposure in the Navy or Com 20 Ed. Focusing on the Navy, that's what caused the 21 disease, though, so that's why I stopped at the 22 Navy. 23 At the conclusion, the evidence is going 24 to show you that gaskets and packing that were used 116 1 with the valves were not contributing factors to 2 Mr. Mulcahy's illness. Other more toxic, dusty, 3 friable and potent asbestos products, mainly the 4 insulations, are what caused his disease. 5 Crane Co. didn't manufacture, supply any 6 of the thermal insulation that he might have been 7 working with and certainly didn't manufacture or 8 supply any of the gaskets and packing that he was 9 exposed to. 10 Crane Co. valves were safe. Crane Co. 11 exercised reasonable care, and because of 12 everything I told you about gaskets and packing, 13 there was simply no duty to warn. 14 Now, plaintiff has the burden of 15 establishing that we contributed -- Crane Co., 16 contributed to the cause. You're going -- there's 17 going to be evidence out there that other items 18 caused it and Crane Co. did not contribute. 19 Plaintiff's burden is to establish that 20 we contributed to that cause, so as you hear all 21 the evidence, be very critical of what you're 22 hearing, and I will trust you'll come to the 23 conclusion again that Crane Co. didn't not 24 contribute. TRANSCRIPT OF PROCEEDINGS 12:30:03 12:30:04 12:30:07 12:30:08 12:30:09 12:30:10 12:30:11 12:30:13 12:30:15 12:30:18 12:30:20 12:30:22 12:30:26 12:30:26 12:30:26 12:30:26 12:30:26 12:35:30 12:35:30 12:35:30 12:35:30 12:35:30 12:35:30 12:35:30 12:35:30 12:35:31 12:35:31 12:35:31 12:35:31 12:35:31 12:35:31 12:35:31 12:35:31 12:35:31 12:35:32 12:35:32 12:35:32 12:35:32 12:35:32 12:35:32 12:35:33 12:35:33 12:35:33 12:35:33 12:35:33 12:35:33 12:35:33 12:35:33 117 1 I look forward to speaking to you at the 2 conclusion of the trial. Thank you for your time. 3 It's a very important service you're doing, and I 4 do appreciate it. 5 Thank you very much. 6 THE COURT: Thank you, Mr. Crane. 7 Ladies and gentlemen, your lunch is 8 here. I will see you back here at 1:30. 9 Please remember my admonition to you. 10 Do not discuss this case at all, not with your 11 fellow jurors or anyone else. 12 See you at 11:00. Thanks. 13 THE DEPUTY: All rise for the jury. 14 (WHEREUPON, the following 15 proceedings were had in chambers, 16 outside the presence and hearing of 17 the Jury, to wit:) 18 THE COURT: Okay. We are all here. 19 Mrs. Mulcahy, is there a reason that 20 she's not at your table? 21 MS. DEAN: She said she would feel more 22 comfortable sitting in the back. 23 THE COURT: Okay. Also, I see you are all a 24 little cramped. If that projector goes higher, 118 1 generally it goes real high on the wall anywhere 2 you can separate the tables. It's just a 3 suggestion I had for you. I don't know if you can 4 get that projector higher. 5 MS. DEAN: I can talk to Ryan. 6 THE COURT: There was a motion about 7 settlement -- settlement funds that were heretofore 8 paid. Are you going to file a written response, or 9 what is your position on that? 10 MS. DEAN: Our position is if they are seeking 11 the aggregate amount in the list of settling 12 parties -- if we are ordered by the Court to do so, 13 we will do so. There is confidentiality 14 agreements, so there will be an order for the 15 Court. That motion sought much more than that. It 16 sought the actual settlement documents and 17 individualized amounts. 18 They could cite to no authority for that 19 request, and I can't think of a reason why they 20 would need that. The only reason they articulated 21 was for setoff purposes and, therefore, the 22 aggregate amount should be sufficient for that. 23 The second issue that they brought up in 24 that is bankruptcy trusts, and we can just tell the 12:35:33 12:35:33 12:35:33 12:35:33 12:35:33 12:35:33 12:35:33 12:35:33 12:35:34 12:35:34 12:35:34 12:35:34 12:35:34 12:35:34 12:35:35 12:35:35 12:35:35 12:35:35 12:35:35 12:35:35 12:35:35 12:35:35 12:35:36 12:35:36 12:35:36 12:35:36 12:35:36 12:35:36 12:35:36 12:35:37 12:35:37 12:35:37 12:35:37 12:35:37 12:35:37 12:35:37 12:35:38 12:35:38 12:35:38 12:35:38 12:35:38 AUGUST 26, 2009 119 1 court there are none. I have been able to confirm 2 and there are no trust documents. 3 THE COURT: So Counsel's representation on 4 that issue should suffice. 5 Do you have any response as to the 6 aggregate portion? I don't know who is arguing 7 that. 8 MR. KING: On the aggregate portion, I believe 9 we are entitled to it. I don't need to seek terms 10 of releases and settlement documents, but we are 11 entitled to the aggregate portion. Timing is up to 12 your Honor. Sooner is always preferred. 13 On the other issue, I understand the 14 representation of no bankruptcy trust filings, but 15 if there are any filings by any counsel or 16 individually by these plaintiffs for Mr. Mulcahy's 17 injuries that they may not be aware of, we would 18 ask that that be inquired of the plaintiff -19 MS. CABUTTO: There are none. 20 MR. KING: -- directly. And it's not limited 21 to bankruptcy trusts. Historically -- and I don't 22 know if this is still going on. Historically, as 23 part of any settlements, there was often a 24 requirement that an affidavit of exposure be 120 1 submitted with a settlement package. 2 So I don't need the agreement that says, 3 we release each other, the boiler plate release 4 language, but if there is an affidavit or an 5 admission of exposure as part of the settlement, I 6 believe that we are entitled to that. 7 MS. DEAN: While I disagree, it's moot. We 8 don't have any of that. 9 THE COURT: Okay. Very good. I don't want to 10 box you from a time perspective, which is why I 11 wanted to get on this as soon as possible. I'm 12 going to grant their motion at this point. I'm 13 going to ask that you have it by the end of the 14 week, and if you have it hopefully by tomorrow, 15 that should put that issue to rest. 16 Okay. Have a nice lunch. I'll see you 17 at 1:30. 18 (WHEREUPON, at 12:35 the deposition 19 was recessed until 1:30 this date, 20 08/26/09.) 21 22 23 24 TRANSCRIPT OF PROCEEDINGS 121 1 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS 2 COUNTY DEPARTMENT - LAW DIVISION 3 4 EVA MULCAHY, Individually and ) 5 as Special Administrator of the ) 6 Estate of JOHN MULCAHY, Deceased,) 7 Plaintiff, ) 8 vs. ) No. 08 L 6223 9 3M COMPANY a/k/a MINNESOTA ) 10 MINING & MANUFACTURING COMPANY, ) 11 et al., ) 12 Defendants. ) 13 14 August 26, 2009 15 1:39 p.m. 16 17 The Court met pursuant to recess. 18 19 20 21 22 23 BEFORE: HONORABLE CLARE E. McWILLIAMS. 24 AUGUST 26, 2009 123 1 PRESENT (Continued): 2 3 gunty & McCarthy, 4 (150 South Wacker Drive, Suite 1025, 5 Chicago, Illinois 60606, 6 1-312-541-0022), by: 7 MS. SUSAN GUNTY, and 8 MR. JAMES P. KASPER, 9 -and10 K&L GATES LLP, 11 (Henry W. Oliver Building, 12 535 Smithfield Street, 13 Pittsburgh, Pennsylvania 15222-2312, 14 1-412-355-6493), by: 15 MR. JEFFREY S. KING, and 16 MR. MICHAEL J. R. SCHALK, 17 appeared on behalf of Defendant Crane 18 Company. 19 20 21 22 23 REPORTED BY: VICTORIA C. CHRISTIANSEN, No. 84-3192 24 KRISTIN C. BRAJKOVICH, No. 84-3810. 122 1 APPEARANCES: 2 3 SIMON EDDINS & GREENSTONE, 4 (3232 McKinney Avenue, Suite 610, 5 Dallas, Texas 75204, 6 1-214-276-7680), by: 7 MS. JESSICA DEAN, and 8 MS. LAURA M. CABUTTO, 9 appeared on behalf of the Plaintiff; 10 11 WHEELER TRIGG O'DONNELL LLP, 12 (1801 California Street, Suite 3600, 13 Denver, Colorado 80202-2617, 14 1-303-244-1800), by: 15 MR. JOHN M. FITZPATRICK, and 16 MR. LaMAR F. JOST, 17 appeared on behalf of Defendant 18 General Electric; 19 20 21 22 23 24 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:36 13:39:37 13:39:37 13:39:37 13:39:37 124 1 (WHEREUPON, the following 2 proceedings were had in chambers, 3 outside the presence and hearing of 4 the Jury, to wit:) 5 THE COURT: Okay. What are we here for? 6 MR. SCHALK: Your Honor, on Monday we filed a 7 motion. I don't know, this door is open, if we 8 need to shut it. 9 THE COURT: Yeah. You can shut it. Thanks. 10 MR. SCHALK: We filed a motion on Monday, and 11 the reason why we would like to have it heard at 12 this point is because it affects Dr. Brody's, 13 testimony and -- potentially affects Dr. Brody's 14 testimony. 15 It's generally his opinion that each and 16 every exposure or some variant of that, whether it 17 be each and every fiber, all of his exposures 18 together caused Mr. Mulcahy's disease. And what 19 they are doing here and what these witnesses do, 20 including Dr. Brody and Dr. Mark and Dr. Holstein, 21 is that they are trying to get past specific 22 causation. We don't dispute in this case that 23 asbestos caused Mr. Mulcahy's disease. That's a 24 general causation. If they wanted to say, Asbestos TRANSCRIPT OF PROCEEDINGS 13:39:37 13:39:37 13:39:37 13:39:38 13:39:38 13:39:38 13:39:38 13:39:38 13:39:38 13:39:38 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:39 13:39:40 13:39:40 13:39:40 13:39:40 13:39:40 13:39:40 13:39:41 13:39:41 13:39:41 13:39:41 13:39:41 13:39:41 13:39:41 13:39:42 13:39:42 13:39:42 13:39:42 13:39:42 125 1 caused his disease, we are fine with that. 2 But when they start saying that each and 3 every little bit of exposure cumulatively caused 4 the disease, that isjust saying, I can't segregate 5 it out. I can't determine specific causation, as 6 per defendant, and, therefore, I'm just going to 7 say each and every one did cause it. It's an 8 opinion that has been thrown out of three courts 9 after they have taken week-long trials to review 10 the opinion itself. Dr. Brody has been -11 THE COURT: Do you dispute his opinion that 12 cumulatively this causes cancer, the asbestos 13 exposure over time from various and sundry places? 14 MR. SCHALK: Do we dispute that? 15 THE COURT: Yes. Do you dispute that opinion? 16 MR. SCHALK: Yes. 17 THE COURT: Do your experts dispute that 18 opinion? 19 MR. SCHALK: Yes, they do. 20 THE COURT: Okay. So why isn't it a battle of 21 the experts? 22 MR. SCHALK: Because that cumulatively is 23 meeting their burden on general causation. When 24 they say cumulatively -- sorry. 126 1 THE COURT: That's all right. 2 MR. SCHALK: -- it does not meet their 3 specific causation burden to show that this 4 defendant's products released enough dust to get to 5 a level that can cause a disease. 6 THE COURT: I guess my question, more 7 specifically, then to you, is this a foundation 8 objection, that he is not qualified to make this? 9 Because, basically, if you are just not agreeing 10 with it, that is not enough. You are fully at 11 liberty to cross-examine him on this issue, and I'm 12 sure your experts are going to opine as to the 13 opposite, if that is their opinion. 14 MR. SCHALK: Yes. But to meet the fraud 15 standard, we are not disputing their qualifications 16 to be expert witnesses in an asbestos case. But 17 their opinions, their expert opinions have to be 18 based on a developed scientific reason, and that is 19 what these three courts in Washington State, 20 Pittsburgh, and Philadelphia, Pennsylvania -- 21 THE COURT: You are, in effect, two minutes 22 this witness is taking the stand asking me for a 23 Frye hearing. Is that what you are doing? This is 24 not going to happen. 13:39:42 13:39:42 13:39:42 13:39:42 13:39:42 13:39:42 13:39:42 13:39:42 13:39:43 13:39:43 13:39:43 13:39:43 13:39:43 13:39:43 13:39:43 13:39:43 13:39:43 13:39:44 13:39:44 13:39:44 13:39:44 13:39:44 13:39:44 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:45 13:39:46 13:39:46 13:39:46 13:39:46 13:39:46 13:39:46 13:39:46 13:40:40 13:40:40 13:40:42 13:40:43 AUGUST 26, 2009 127 1 This was filed Monday, and here we are 2 Wednesday at 1:30 about to approach your first 3 witness and this is the first time I'm hearing of 4 it. I'll take it under advisement as it comes up. 5 I presume that if it is, in fact, you can lay the 6 foundation and this expert has disclosed these 7 opinions. It's a matter of not necessarily 8 admissibility, but weight again, and it's subject 9 to cross-examination. 10 MR. SCHALK: If I may your Honor -11 THE COURT: Uh-huh. 12 MR. SCHALK: -- we are fine if Dr. Brody can 13 establish -- we can do a short voir dire outside 14 the presence of the jury, if you would like. We 15 would like Dr. Brody to explain to you the basis 16 behind his each and every opinion. And if he 17 couldn't support that with reasonable methods -18 Dr. Brody -- and we have it -- and he has done so 19 in the past. His says, This opinion has never been 20 scientifically tested, it's unsupported by any 21 data, never been published in a peer-reviewed 22 literature, and the concept itself is intuitive. I 23 mean, that is a very big problem, allowing an 24 opinion, based on the lack of all of those things, 128 1 to go before a jury. 2 THE COURT: I'll listen to his qualifications. 3 At that point, you can renew this motion and make 4 your objection, and if I feel it's necessary to 5 take a voir dire back here, that is as far as it's 6 going to go. 7 It sounds to me that this was more 8 over -- should have been the subject of a prior 9 motion to bar or a Frye hearing or a separate 10 motion in limine and not now. 11 But I feel he's going to take the stand 12 and he has got no requisite educational or expert 13 background in this, I'll listen to you as far as 14 barring it, but I suspect that is highly unlikely. 15 All right. 16 MR. SCHALK: Thank you, your Honor. 17 THE COURT: Sure. 18 (WHEREUPON, the following 19 proceedings were had in open court, 20 in the presence and hearing of the 21 Jury, to wit:) 22 THE CLERK: Please be seated. Thank you. 23 THE COURT: Welcome back, ladies and 24 gentlemen. Hope you had a nice lunch. We are now TRANSCRIPT OF PROCEEDINGS 13:40:46 13:40:49 13:40:52 13:40:55 13:40:56 13:40:59 13:41:01 13:41:03 13:41:05 13:41:08 13:41:12 13:41:13 13:41:13 13:41:22 13:41:23 13:41:25 13:41:30 13:41:30 13:41:30 13:41:30 13:41:30 13:41:30 13:41:31 13:41:31 13:41:34 13:41:35 13:41:39 13:41:42 13:41:45 13:41:46 13:41:47 13:41:49 13:41:52 13:41:53 13:41:56 13:41:59 13:42:03 13:42:06 13:42:09 13:42:12 13:42:16 13:42:17 13:42:20 13:42:23 13:42:23 13:42:25 13:42:27 13:42:30 129 1 going to proceed with plaintiff's case in chief. 2 Ms. Dean, your first witness, please. 3 MS. DEAN: We would like to call Dr. Arnold 4 Brody to the stand. 5 THE COURT: Okay. Thank you. Good afternoon, 6 Dr. Brody. If you could watch your step and come 7 right around the reporters here. 8 THE WITNESS: Thank you. 9 THE COURT: Before you have a seat, you can 10 come on up and step up here and we'll swear you in 11 from here. Okay? 12 (WHEREUPON, the witness was duly 13 sworn.) 14 THE COURT: Thank you. Please have a seat. 15 If there's anything that you need during your 16 testimony, please don't hesitate to let me know. 17 THE WITNESS: Thank you. 18 THE COURT: Ms. Dean. 19 ARNOLD BRODY, Ph.D., 20 called as a witness herein, having been first duly 21 sworn, was examined and testified as follows: 22 DIRECT EXAMINATION 23 BY MS. DEAN: 24 Q. Good afternoon, Dr. Brody. Could you 130 1 introduce yourself to the jury. 2 A. Sure. My name is Arnold R. Brody. I'm 3 a professor at North Carolina State University. 4 Q. I have been calling you Dr. Brody. Are 5 you a medical doctor? 6 A. No. I'm a Ph.D. 7 Q. And one of the things that I told the 8 jury that you did was a cell biologist. Can you 9 tell the jury what that means? 10 A. Yes. Every living thing is made of 11 cells. We need to understand what cells do. Every 12 disease has what is called a target cell, from 13 which that disease develops, so cell biologists 14 like myself, we are interested in pathology, which 15 is the next word. Pathology is the study of 16 disease. Cell biologists can also understand 17 diseased cells. 18 Q. Have you spent most of your career 19 studying the affect of asbestos on cells and 20 tissues? 21 A. I have. Yes, I have. 22 Q. What I would like to do is talk about 23 your qualifications. What is asbestos? What are 24 the different types of asbestos? What diseases 13:42:34 13:42:37 13:42:37 13:42:39 13:42:39 13:42:40 13:42:42 13:42:48 13:42:49 13:42:50 13:42:54 13:42:57 13:43:01 13:43:04 13:43:07 13:43:09 13:43:11 13:43:13 13:43:15 13:43:18 13:43:19 13:43:22 13:43:25 13:43:28 13:43:31 13:43:34 13:43:36 13:43:36 13:43:40 13:43:42 13:43:45 13:43:49 13:43:52 13:43:54 13:43:58 13:44:03 13:44:05 13:44:09 13:44:14 13:44:16 13:44:20 13:44:23 13:44:27 13:44:29 13:44:30 13:44:32 13:44:35 AUGUST 26, 2009 131 1 does asbestos cause? And how does asbestos cause 2 disease? 3 Are you prepared to talk about those 4 subjects? 5 A. Sure. 6 Q. Okay. I would first like to hand you a 7 copy of your curriculum vitae and ask you is that a 8 fair and accurate copy of that? 9 A. Yes, it is. 10 Q. Okay. What is a curriculum vitae? 11 A. This is a resume. This describes where 12 I went to school and my employment history. It 13 gives the titles of all of the papers that I have 14 written over the years, where I have been invited 15 to speak at various places. 16 Q. And where do you currently live? 17 A. In Raleigh, North Carolina. 18 Q. And what do you for a living? 19 A. I'm a professor at North Carolina State 20 University. I have what is called a basic science 21 research laboratory. I have been teaching a lot of 22 my career, but I don't have a regular teaching 23 assignment now. But I have a laboratory where I 24 have technicians and young students and young 132 1 faculty who carry out basic science research. 2 Q. Have you always been a professor at 3 North Carolina State? 4 A. Oh, no. I have a long academic history. 5 Q. Where were you teaching before that? 6 A. Okay. Just before that, I was at Tulane 7 University in New Orleans, but I started my 8 academic career as an assistant professor, that's a 9 beginning professor, at the University of Vermont 10 in the Northeast, and I was there for six years. 11 I then went to the National Institute of 12 Health for 15 years, where I was the head of the 13 lung pathology laboratory. 14 And then I went to Tulane as an -- as a 15 full tenured professor. In 1999 I was promoted to 16 vice-chairman of the pathology department in the 17 medical school at Tulane. And you have probably 18 heard about that little storm called Katrina that 19 came rolling through New Orleans. That changed our 20 lives as well as a lot of other people, and we 21 relocated to North Carolina. 22 And I accepted a position with North 23 Carolina State University, and that was in 2006, 24 and that is where I am today. TRANSCRIPT OF PROCEEDINGS 13:44:37 13:44:39 13:44:41 13:44:44 13:44:46 13:44:47 13:44:48 13:44:50 13:44:55 13:44:59 13:45:04 13:45:08 13:45:10 13:45:13 13:45:17 13:45:19 13:45:20 13:45:22 13:45:24 13:45:27 13:45:29 13:45:29 13:45:31 13:45:35 13:45:38 13:45:40 13:45:42 13:45:46 13:45:50 13:45:54 13:45:58 13:46:01 13:46:01 13:46:03 13:46:06 13:46:09 13:46:12 13:46:14 13:46:17 13:46:17 13:46:20 13:46:22 13:46:24 13:46:25 13:46:29 13:46:32 13:46:36 13:46:39 133 1 Q. One of the things that you just said was 2 that you were vice-chairman of the pathology 3 department in the medical school. How is it that 4 you were in the medical school if you are not a 5 medical doctor? 6 A. Right. So if you go to any medical 7 school, any of the great medical schools in 8 Illinois or anywhere else, and you'll see a number 9 of Ph.D.s like myself who teach the basic sciences 10 and who carry out basic science research. And we 11 teach the basic sciences like physiology, anatomy, 12 embryology, physiology, things like that to the 13 medical students, so that is not at all unusual. 14 It's a little unusual for a Ph.D. to be a 15 vice-chair, but that has worked out for me at 16 Tulane. 17 Q. I want to backtrack a little bit and go 18 through your educational background so the jury 19 knows what you have kind of gone through. 20 Starting with college, where did you go 21 to college? 22 A. After high school in New Hampshire, I 23 went out to Colorado to do a Bachelor of Science 24 degree in Zoology. Zoology is the study of 134 1 animals. That was a Bachelor of Science degree. 2 Then I went to the University of 3 Illinois, downstate. I met the Mrs., who is from 4 Chicago. We were there for two years, where I did 5 a master of science degree in anatomy. Anatomy is 6 the study of how our parts are put together, how 7 they function. That was a Master of Science 8 degree. 9 I then went back to Colorado to do a 10 Ph.D. in cell biology, the topic that we talked 11 about earlier. Then I did three years of 12 postdoctoral study at Ohio State University. 13 Q. At some point in your career, did you 14 become interested on the effects of asbestos on 15 cells? 16 A. Right. That was actually at the 17 University of Vermont. That was in my first 18 academic appointment. 19 Q. Tell us what happened then. 20 A. So there was a visitor to the department 21 at the University of Vermont. His name is 22 Dr. Wagner. It is W-a-g-n-e-r. It looks like 23 Wagner, but it's pronounced Wagner because he was 24 from South Africa. 13:46:43 13:46:45 13:46:51 13:46:54 13:46:58 13:47:00 13:47:02 13:47:04 13:47:09 13:47:12 13:47:14 13:47:16 13:47:20 13:47:25 13:47:27 13:47:30 13:47:34 13:47:36 13:47:38 13:47:40 13:47:42 13:47:43 13:47:46 13:47:48 AUGUST 26, 2009 135 1 Dr. Wagner had essentially discovered in 2 1960 that asbestos causes mesothelioma. Now, there 3 were mesothelioma cases before that, but he really 4 put together the association between asbestos 5 exposure and the cancer mesothelioma. 6 So he was visiting the department and he 7 saw the work that I was doing using different kinds 8 of microscopes, and he asked me to come work with 9 him in Wales in the United Kingdom, which is where 10 he was at the time, and this was a great 11 opportunity for me, and I took my young family 12 there and I spent a summer working with Dr. Wagner, 13 and he showed me that when you expose animals like, 14 for example, rats to asbestos, they get all the 15 diseases that people get, asbestosis, lung cancer, 16 mesothelioma, so that meant we had a model to 17 understand human disease. 18 So that's where I got my start and 19 interest in that disease. 20 Q. Why were you using a rat model in order 21 to learn about human disease? 22 A. Well, that's what scientists do. 23 First of all, by the time a person comes 24 to the clinic decades after exposure, you don't get 13:47:52 13:47:56 13:47:59 13:48:02 13:48:06 13:48:09 13:48:13 13:48:14 13:48:17 13:48:20 13:48:21 13:48:22 13:48:24 13:48:25 13:48:26 13:48:27 13:48:28 13:48:29 13:48:30 13:48:30 13:48:33 13:48:38 13:48:39 13:48:40 136 1 to see what's going on inside that person's lung. 2 The only way to understand the process that went on 3 in that person that brought that person to the 4 clinic is by using what we call animal models. 5 Just about every human disease has an 6 animal model that allows us to understand these 7 processes. 8 Q. One of the things that was stated this 9 morning by counsel is that you were going to put on 10 a rat show. 11 What do you think about that? 12 A. Someone said I was going to put on a rat 13 show? 14 Q. Yes. 15 A. That sounds -16 MR. FITZPATRICK: Objection, your Honor, 17 relevance. 18 THE COURT: Overruled. 19 BY THE WITNESS: 20 A. That sounds quite disrespectful not just 21 to me but to science in general and I would say a 22 misunderstanding of what science has done, if 23 that's what that person said. 24 That's what scientists do. We use rats TRANSCRIPT OF PROCEEDINGS 13:48:44 13:48:46 13:48:52 13:48:56 13:48:58 13:48:58 13:49:00 13:49:01 13:49:04 13:49:08 13:49:11 13:49:12 13:49:16 13:49:19 13:49:20 13:49:21 13:49:26 13:49:27 13:49:29 13:49:31 13:49:34 13:49:39 13:49:43 13:49:46 13:49:48 13:49:53 13:49:56 13:49:59 13:50:01 13:50:04 13:50:06 13:50:10 13:50:12 13:50:16 13:50:18 13:50:21 13:50:24 13:50:26 13:50:29 13:50:33 13:50:34 13:50:39 13:50:41 13:50:45 13:50:46 13:50:49 13:50:50 13:50:53 137 1 and mice to understand human disease, whether it's 2 tuberculosis or AIDS or muscular dystrophy or -3 name any of the human diseases. We use animals to 4 understand those diseases. 5 BY MS. DEAN: 6 Q. And what time frame did you start 7 working with Professor Wagner? 8 A. That was 1974. 9 Q. I've been kind of asking your opinions a 10 little bit about, for instance, why you were using 11 animal models. 12 Can I ask you for any of the questions I 13 give you that you keep them within a reasonable 14 degree of scientific certainty? 15 A. Of course. 16 Q. Have you conducted any original 17 research? 18 A. Well, sure. I mean, that's what I do. 19 When you ask, you know, what do you do 20 as a scientist, in order to be successful, you have 21 to attract money, funding -- the universities don't 22 pay for my work, the universities give you a place 23 to work, and what you have to do -- what the 24 scientist has to do is to be able to attract 138 1 funding from the National Institutes of Health on a 2 national basis, and that's a very competitive 3 process. Tens of thousands of applications are 4 presented every year, and only about 10 or 15 5 percent of them get funded. 6 So that's a very important part of my 7 work, and the only way that happens is by doing 8 original research. In other words, if I have an 9 idea, something that we know there's no answer for 10 now in the open medical literature, there is no 11 scientific answer to the question, then I have to 12 propose experiments to find the answer to the 13 question, and that's what I do. 14 Q. How long has the National Institutes of 15 Health been funding your research even despite this 16 competitive process that they require? 17 A. Right. So I started in 1978 being 18 funded by the National Institutes of Health and my 19 work has been funded by the NIH without 20 interruption since then. 21 Q. In relation to asbestos, what kind of 22 research have you been doing? 23 A. Say it again. Sorry. 24 Q. Sorry. In relation to asbestos, what 13:50:54 13:50:57 13:50:59 13:51:03 13:51:06 13:51:09 13:51:12 13:51:14 13:51:17 13:51:19 13:51:21 13:51:23 13:51:26 13:51:29 13:51:33 13:51:36 13:51:39 13:51:42 13:51:47 13:51:50 13:51:53 13:51:54 13:51:56 13:51:57 13:51:58 13:52:00 13:52:01 13:52:01 13:52:03 13:52:09 13:52:14 13:52:15 13:52:18 13:52:20 13:52:24 13:52:26 13:52:26 13:52:28 13:52:29 13:52:29 13:52:30 13:52:32 13:52:36 13:52:40 13:52:40 13:52:41 13:52:42 13:52:44 AUGUST 26, 2009 139 1 kind of research have you been doing? 2 A. Yeah, sure. Well, when I started with 3 Dr. Wagner decades ago, we knew that asbestos 4 caused diseases, all these different diseases that 5 we've heard about, but despite that knowledge, we 6 had no idea where the fibers go in the lung. We 7 knew the fibers went in the lung, but where did 8 they go, and once they got in there, how did they 9 injure the cells of the lung? 10 That's the way the work started. Those 11 are the kinds of questions. 12 Nowjumping ahead 20-some-odd years, 13 we're into the genetics of asbestos disease, what 14 is it that makes a person susceptible? Why do some 15 people get disease and some don't? How does 16 asbestos cause genetic damage that leads to these 17 cancers like mesothelioma and lung cancer? 18 Q. Has this -- have you before today with 19 this jury gone and discussed your research in terms 20 of figuring out how asbestos causes disease in 21 courtrooms before? 22 A. Oh, many firms. 23 Q. Have you ever done that for my firm? 24 A. I have. 140 1 Q. Have you ever done that on behalf of 2 asbestos-manufacturing companies? 3 A. I have. 4 Q. Do you remember any of those companies? 5 A. Oh, sure. U.S. Gypsum and FlintCoat and 6 John Crane. There were several others. I'm sure I 7 could think of them. 8 Q. Sir, to be fair, do you spend most of 9 your time in the courtroom at the request of 10 plaintiffs' firms alleging someone got hurt as a 11 result of asbestos exposure? 12 A. That's right. 13 Q. Can you tell the jury whether you're 14 paid for your time here today? 15 A. Of course I am. 16 Q. How much? 17 A. $475 per hour. 18 Q. Mr. Fitzpatrick indicated that you earn 19 several hundred dollars a year doing this type of 20 work. 21 Is that true? 22 A. That's right. 23 Q. Can you tell the jury whether outside of 24 this courtroom here in Illinois there are other TRANSCRIPT OF PROCEEDINGS 13:52:47 13:52:49 13:52:51 13:52:53 13:52:55 13:52:57 13:52:59 13:53:01 13:53:04 13:53:10 13:53:17 13:53:24 13:53:27 13:53:28 13:53:30 13:53:33 13:53:37 13:53:40 13:53:40 13:53:44 13:53:47 13:53:48 13:53:49 13:53:50 13:53:51 13:53:52 13:53:52 13:53:53 13:53:53 13:53:53 13:53:54 13:53:54 13:53:55 13:53:56 13:53:57 13:53:58 13:53:58 13:53:59 13:54:00 13:54:01 13:54:01 13:54:03 13:54:06 13:54:10 13:54:11 13:54:15 13:54:16 13:54:18 141 1 courts that have allowed you to come and testify 2 about your expertise in cell biology? 3 A. Oh, from coast to coast, absolutely. 4 Q. Can you give examples of some of the 5 states that have allowed you to come in as an 6 expert to talk about this matter? 7 A. Sure. I've been in California many 8 times, Texas many times, Florida a number of times, 9 Illinois, of course. I've been in Wisconsin and 10 Florida and North Carolina and South Carolina, I 11 think, and Connecticut, New York. Probably a 12 couple of others, but that's certainly most of 13 them. 14 Q. How about outside of the courtroom? Is 15 this same material about talking about how asbestos 16 gets in our lungs and cause disease something that 17 you've lectured about that has nothing to do with 18 litigation? 19 A. Absolutely. That's all listed in my CV. 20 Q. I see you've been a participant or given 21 presentations in Chicago, is that right? 22 A. Yes, many times. 23 Q. Salt Lake City? 24 A. Yes. 142 1 Q. Little Rock? 2 A. Right. 3 Q. Washington D.C.? 4 A. Yes. 5 Q. Detroit? 6 A. Right. 7 Q. St. Louis? 8 A. Yes. 9 Q. Chicago? 10 A. Right. 11 Q. Vermont? 12 A. Right. 13 Q. Montreal? 14 A. Yes. 15 Q. New Orleans? 16 A. Right. 17 Q. This goes on for 26 pages? 18 A. It does, in fact. In fact, you missed a 19 couple of interesting places like Paris and -- and 20 cities in Italy and things like that. 21 Q. That just makes me jealous, so I'm 22 staying out of that. 23 Are these presentations whether you're 24 talking to a jury or a classroom of students or 13:54:21 13:54:24 13:54:28 13:54:31 13:54:35 13:54:37 13:54:37 13:54:39 13:54:42 13:54:44 13:54:47 13:54:49 13:54:53 13:54:56 13:55:00 13:55:01 13:55:04 13:55:06 13:55:08 13:55:11 13:55:11 13:55:13 13:55:15 13:55:17 13:55:18 13:55:23 13:55:26 13:55:29 13:55:32 13:55:35 13:55:39 13:55:40 13:55:42 13:55:44 13:55:48 13:55:51 13:55:55 13:56:00 13:56:04 13:56:07 13:56:11 13:56:15 13:56:18 13:56:18 13:56:21 13:56:23 13:56:26 13:56:29 AUGUST 26, 2009 143 1 being asked to give a lecture at a conference any 2 different because -- in terms of substance? 3 A. Well, what's different is -- well, I 4 could just answer no, they're not different, but 5 what's different is the level that I'm talking 6 about. 7 In other words, you've asked me to 8 explain how asbestos causes lung disease, and I'm 9 going to do that. What I'm not going to do for 10 this jury that I did the last time I talked to the 11 Harvard School of Public Health is go into the 12 individual genes that we believe are playing a role 13 in this disease and I'm not going to explain how 14 those genetics shape us and our lives and these 15 diseases. 16 There's a certain level that I think we 17 need to deal with in the courtroom versus what I 18 talk to when I go to the universities. There are 19 different audiences and require different levels of 20 understanding. 21 Q. Another thing I see here in the resume 22 is a section about editorial boards. 23 Can you tell the jury what an editorial 24 board is? 144 1 A. Right. So if I want to publish one of 2 my papers -- we haven't talked about publications, 3 I know, I'm sure you're headed there, but obviously 4 one of the things that I have to do is publish my 5 work in the open medical literature. That's the 6 only way I can compete for these research dollars 7 from the NIH. 8 So when I think I've done a series of 9 experiments that is ready for anybody to read 10 about, I write up a paper, a scientific paper, and 11 I send it to a journal, a medical journal, and the 12 editor of that journal takes my paper and sends it 13 to my peers, scientists like myself, and those 14 scientists review my work anonymously, and then 15 they send a report back to the editor, and the 16 editor then passes the reviews to the editorial 17 board and the board makes decisions on what is 18 published, so what goes out into the open medical 19 literature. 20 So editorial boards play a role in what 21 gets published and what does not. 22 Q. Does this process of having peer review 23 of other scientists help validate work? 24 A. Well, sure it does. In other words, TRANSCRIPT OF PROCEEDINGS 13:56:31 13:56:34 13:56:37 13:56:40 13:56:41 13:56:44 13:56:47 13:56:48 13:56:51 13:56:57 13:57:00 13:56:58 13:57:01 13:57:04 13:57:07 13:57:10 13:57:12 13:57:15 13:57:19 13:57:23 13:57:25 13:57:25 13:57:29 13:57:33 13:57:38 13:57:43 13:57:46 13:57:47 13:57:50 13:57:53 13:57:56 13:57:59 13:58:02 13:58:06 13:58:08 13:58:12 13:58:15 13:58:17 13:58:17 13:58:18 13:58:20 13:58:20 13:58:21 13:58:23 13:58:25 13:58:27 13:58:29 13:58:31 145 1 scientists can pass judgment on what I'm doing. 2 They can say whether or not what I'm doing is worth 3 being read by others and worth being put out into 4 the medical literature. 5 Q. Can you give the jury an idea of how 6 many peer-reviewed published articles in scientific 7 literature you've had published? 8 A. Yes. I have 149 peer-reviewed papers 9 and about 51 now book chapters. Those are invited 10 writings, book chapters and proceedings and things 11 like that. 12 Q. In addition to being peer-reviewed and 13 being published, have you ever been on those 14 editorial boards to review other people's work to 15 see if they are scientifically signed? 16 A. I do that regularly. I have two papers 17 assigned to me right now, as we speak. 18 Q. What I would like to do is move on then 19 to the first topic outside of your qualifications. 20 And that is, What is asbestos? Could you tell the 21 jury what asbestos is? 22 A. Sure. So asbestos is a naturally 23 occurring mineral, and I'll just give you the brief 24 introduction to asbestos. It is mined from the 146 1 soil, and it's typically mined in open pit kind of 2 mines and it comes out like a rock. It comes out 3 like big rocks. 4 And then asbestos is a fiber form 5 mineral, so when it's crushed down to its final 6 form, it can then be used in the myriad of products 7 that it has been used in over the decades. 8 There really are three major kinds of 9 asbestos that make up almost 100 percent of all of 10 the asbestos that has been used in the world. 11 Q. And, Dr. Brody, I put in a slide, and 12 let me know if these are the three that you are 13 talking about because I wanted to be able to have 14 pictures. 15 A. Okay. 16 Q. I thought that might be helpful. 17 A. That's fine. 18 Q. I was on the right track? 19 A. Yes. That is just what I was going to 20 say. I didn't know you had a picture. 21 Q. I did. Could you go ahead and explain 22 to the jury the difference between those different 23 forms of asbestos? 24 A. Sure. So here are the three forms, you 13:58:33 13:58:39 13:58:43 13:58:45 13:58:48 13:58:51 13:58:53 13:58:59 13:59:01 13:59:06 13:59:09 13:59:11 13:59:14 13:59:16 13:59:19 13:59:20 13:59:24 13:59:27 13:59:33 13:59:35 13:59:37 13:59:41 13:59:44 13:59:48 13:59:51 13:59:55 13:59:58 14:00:01 14:00:04 14:00:07 14:00:08 14:00:11 14:00:17 14:00:21 14:00:24 14:00:27 14:00:27 14:00:30 14:00:30 14:00:34 14:00:34 14:00:36 14:00:40 14:00:44 14:00:46 14:00:51 14:00:54 14:01:00 AUGUST 26, 2009 147 1 can see, chrysotile is about 95 of the world's use. 2 The other two varieties are in a different mineral 3 group, and they are crocidolite and amosite. 4 And so here is the rock form, and 5 chrysotile is commonly called white asbestos 6 because when it comes out of the rock, it has a 7 white cast to it. Crocidolite is commonly called 8 blue asbestos, even though it is kind of an ugly 9 color here, it has a blue mineral content. Amosite 10 is called brown asbestos because the rock is brown. 11 And you can see it's fiber form, and 12 when it's crushed down, you can see these are the 13 kinds of appearances that the fibers would have 14 before they are incorporated into the various 15 products. 16 Now, this mineral, chrysotile, that is 17 about 95 percent of the world's use, is in a 18 mineral group called serpentine. It's called 19 serpentine because when you look at the rock -20 actually not as you see it here, but when these 21 rocks sit in the face of the mines, it kind of 22 winds through the rock in a kind of sinuous, 23 snakelike pattern, serpentine. So this is a 24 serpentine mineral. Chrysotile is the only member 148 1 of that mineral that is an asbestos variety. 2 And then crocidolite and amosite fall 3 into another mineral category called amphibole, 4 a-m-p-h-i-b-o-l-e. 5 The amphiboles -- there are actually 6 several, four or five different amphiboles that 7 have been used and that are asbestos minerals, but 8 only crocidolite and amosite really have been used 9 enough to count in the sense of percent use. So 10 amosite and crocidolite make upjust about the 11 other 5 percent of all of the world's use of 12 asbestos. 13 Q. Have you had an opportunity to review 14 literature about these different types of asbestos 15 and their ability to cause disease? 16 A. Sure. 17 Q. I want to talk to you a little bit then 18 about the diseases that asbestos causes. 19 First, starting with asbestosis, could 20 you explain that to thejury? 21 A. So asbestosis, by definition, is scar 22 tissue in the lung from inhaling asbestos, and it 23 typically takes long-term, high-level exposures. 24 When I say long-term, I mean many years of high TRANSCRIPT OF PROCEEDINGS 14:01:03 14:01:07 14:01:11 14:01:13 14:01:15 14:01:18 14:01:20 14:01:26 14:01:29 14:01:32 14:01:36 14:01:36 14:01:40 14:01:44 14:01:48 14:01:49 14:01:54 14:01:55 14:01:57 14:02:00 14:02:04 14:02:06 14:02:09 14:02:12 14:02:15 14:02:18 14:02:20 14:02:22 14:02:26 14:02:28 14:02:30 14:02:34 14:02:36 14:02:40 14:02:43 14:02:48 14:02:51 14:02:55 14:02:55 14:02:58 14:03:02 14:03:04 14:03:09 14:03:13 14:03:14 14:03:17 14:03:22 14:03:24 149 1 concentrations of exposure to develop the clinical 2 picture of asbestos, which is scarring in the lung, 3 and you can actually see that scarring even with 4 the naked eye in this person. 5 Q. The next disease I want to talk to you 6 about are pleural plaques? 7 A. If you'll back up just a second. 8 So pleural plaques, it's another scar 9 tissue, but it sits just on the surface of the lung 10 inside the rib cage. You see the artist has 11 removed the ribs here. And this is a Netter 12 diagram here. I use Netter diagrams. 13 Dr. Netter has given us atlases of the 14 human body in health and disease, and lecturers 15 commonly use Netter diagrams. This is the Netter 16 diagram of asbestosis. There is his signature 17 right there. 18 And what he's showing you here, on the 19 surface of the lung is scar tissue, and these 20 individual scars then are plaques that sit on the 21 surface of the lung. And that's a close-up of 22 those, so this is scar tissue that appears on the 23 surface of the lung. 24 Q. The next disease in terms of asbestos 150 1 exposure that I want to talk about is lung cancer. j2 Could you explain that for the ury? 3 A. So lung cancer develops in the walls of 4 the airways, and I'll separate out the airways 5 versus the gas exchange area of the lung. I have a j6 diagram that does that in ust a minute. 7 But you can see here is a cancer that 8 has developed, and the cancer is confined right now 9 to the central regions of the lung. The pleura is 10 normal. You can see the pleura out here, very 11 thin, shiny membrane. The pleura is a Saran Wrap 12 thin membrane that wraps around the outside of the 13 lung, makes the lungs air tight. This is a normal 14 pleura. 15 This is a cancer that has arisen in the 16 walls of the airways, and typically lung cancer 17 develops in the lungs of people that smoke 18 cigarettes. If one is exposed to asbestos and 19 smokes cigarettes, you have a much greater risk of 20 getting lung cancer. Much greater than the risk of 21 adding asbestos alone, the risk of smoking alone. 22 They synergize. They are multiplicative risk. 23 But this is what the lung cancer would 24 look like, whether it was just from cigarette smoke 14:03:27 14:03:30 14:03:33 14:03:36 14:03:39 14:03:40 14:03:43 14:03:47 14:03:47 14:03:50 14:03:52 14:03:56 14:03:58 14:04:00 14:04:03 14:04:07 14:04:10 14:04:11 14:04:13 14:04:16 14:04:17 14:04:19 14:04:22 14:04:25 14:04:31 14:04:32 14:04:33 14:04:34 14:04:34 14:04:37 14:04:39 14:04:41 14:04:44 14:04:47 14:04:51 14:04:54 14:04:56 14:04:59 14:05:02 14:05:02 14:05:04 14:05:09 14:05:13 14:05:15 14:05:18 14:05:21 14:05:21 14:05:23 AUGUST 26, 2009 151 1 or from both cigarette smoke and asbestos. 2 Q. Probably, most importantly, I want to 3 talk to you about the disease that Mr. Mulcahy died 4 from. Could you explain what this shows in regards 5 to mesothelioma? 6 A. So you remember what that very thin 7 pleura looked like. Now we have a dramatically 8 thickened pleura, and it's thickened because cancer 9 cells have developed on the surface of that pleura, 10 and are spreading into the lung and they have 11 spread down into the peritoneal cavity that holds 12 the stomach and the intestines. 13 And I'll explain how asbestos gets out 14 to the pleura and causes this cancer. 15 Q. You have mentioned the role of smoking 16 and lung cancer. What it's role of smoking in 17 terms of causing mesothelioma? 18 A. There is none. I did not mention it 19 because there is no association between cigarette 20 smoking and mesothelioma. 21 Q. Throughout your studies, have you found 22 that there is a safe level of exposure to asbestos, 23 when we are specifically talking about its ability 24 to cause mesothelioma, as opposed to asbestos and 152 1 other diseases? 2 MR. KING: Objection, your Honor. 3 THE COURT: Overruled. 4 BY THE WITNESS: 5 A. There is no safe level that has been 6 established for mesothelioma. If all one is 7 exposed to is what is in the background, that 8 little bit of asbestos that we all have in our 9 lungs, I don't expect that to cause disease. I 10 have never heard of anybody developing asbestos 11 disease from the background, so you could say, 12 Well, maybe that is safe. 13 But above that, no one has established a 14 level that is safe for everybody. 15 BY MS. DEAN: 16 Q. Again, there was a comparison made by a 17 couple of lawyers about Tylenol and how you can 18 take one Tylenol and it can be good for you, but a 19 bottle might be bad for you. Do you think that 20 that is a helpful comparison in understanding 21 asbestos exposure and its ability to cause 22 mesothelioma? 23 A. Well, yes and no is the answer. In 24 other words, what that analogy does, whether it is TRANSCRIPT OF PROCEEDINGS 14:05:26 14:05:30 14:05:33 14:05:34 14:05:38 14:05:41 14:05:48 14:05:53 14:05:55 14:05:58 14:06:00 14:06:02 14:06:05 14:06:10 14:06:12 14:06:14 14:06:16 14:06:19 14:06:21 14:06:23 14:06:27 14:06:31 14:06:32 14:06:35 14:06:35 14:06:40 14:06:44 14:06:47 14:06:48 14:06:49 14:06:51 14:06:53 14:06:56 14:06:58 14:07:01 14:07:03 14:07:06 14:07:11 14:07:14 14:07:17 14:07:22 14:07:25 14:07:28 14:07:33 14:07:36 14:07:39 14:07:42 14:07:42 153 1 Tylenol or aspirin or water or anything else, it 2 makes the point about dose/response, and that is 3 fine. 4 The more you have, the more likely it is 5 to cause disease, but those are not useful 6 analogies because those materials, Tylenol or 7 aspirin or water, those are metabolized. And if 8 you take them in a normal amount, they get used up 9 and you can go ahead and take the prescribed dose 10 every day and you are fine. 11 Asbestos does not go away. Some 12 percentages of it go away every day, but not all of 13 it, and that is why it accumulates. And these are 14 cumulative diseases because the asbestos 15 accumulates in the lung. 16 Q. I think we may have already talked about 17 this, but what is this slide show? 18 A. This would be -- this is an actual 19 picture versus a diagram. So it's normal lungs. 20 If you look at the lungs, you can see this is the 21 left lung, which has two lobes, versus the right 22 lung, which has three lobes, right upper, right 23 middle, and right lower lobe. And this is normal, 24 and the pleura you can see is that shiny Saran 154 1 Wrap. 2 And in this lung it has been replaced by 3 this dramatic growth of cancer cells over and 4 around the lung. 5 Q. Dr. Brody, could you explain to the jury 6 the concept of individual susceptibility, when we 7 are talking about cancer risk? 8 A. Sure. You know -- you all know people 9 that have smoked all their lives and then passed 10 away of something other than lung cancer, and that 11 is the same thing with asbestos. 12 Most people exposed to asbestos do not 13 get disease, and those that do are susceptible. 14 And what makes these people susceptible, whether we 15 are talking about cigarette smoke or asbestos, is 16 their genetic makeup. What is it about their genes 17 that makes them susceptible to disease? And I 18 can't answer that question. There are a few 19 diseases that we can define the genes, where we 20 know the specific gene and an error in that gene 21 will make that person susceptible. We could list 22 them if we had time or if we wanted to talk about 23 that. 24 We don't know those genes yet for 14:07:45 14:07:48 14:07:51 14:07:54 14:07:57 14:07:59 14:08:08 14:08:10 14:08:14 14:08:16 14:08:18 14:08:20 14:08:24 14:08:24 14:08:27 14:08:29 14:08:32 14:08:35 14:08:37 14:08:39 14:08:43 14:08:48 14:08:51 14:08:55 14:08:58 14:09:02 14:09:07 14:09:11 14:09:14 14:09:16 14:09:19 14:09:24 14:09:26 14:09:27 14:09:28 14:09:30 14:09:31 14:09:33 14:09:34 14:09:35 14:09:36 14:09:39 14:09:39 14:09:41 14:09:43 14:09:46 14:09:48 14:09:52 AUGUST 26, 2009 155 1 mesothelioma and lung cancer, but we have a list 2 that we are working on now. We know there are 3 certain genes that we expect to be damaged in a 4 person with mesothelioma. Now, just which 5 combination of those, just which ones are required 6 for that person is what we are learning today. 7 Q. I would like to ask your opinion -- if 8 you can't figure out which particular people are 9 susceptible to disease, do you know whether it was 10 something that was understood in a large enough 11 population that was exposed that at least some 12 people, even if we don't know which ones, would get 13 sick? 14 A. Well, that's what epidemiology tells us. 15 In other words, if there was an exposed population, 16 you have a certain percent expectation of who will 17 get the disease in that population, true. 18 Q. Now, the next concept I'd like to have 19 you explain is latency. 20 A. Uh-huh, okay. Latency is the time from 21 first exposure until the time it takes for the 22 person to come to the clinic. The latency is that 23 time period in between first exposure and the time 24 the person comes to the clinic, and typically for 156 1 all of the asbestos diseases, it's many decades. 2 It's -- it can be anywhere from 10 to 70 years, but 3 it's more typically 30 to 50 years. 4 Q. Based on your study -- and I want to go 5 through each one of these -- for each one of the 6 forms of asbestos that you identified, the 7 chrysotile, amosite and crocidolite, do you have an 8 opinion on whether exposure to all three of those 9 types can cause asbestosis? 10 A. They do, certainly. 11 Q. What about pleural plaques? 12 A. Yes, they do. 13 Q. What about lung cancer? 14 A. All of the varieties contribute to lung 15 cancer, yes. 16 Q. And what about mesothelioma? 17 A. Yes, all of the asbestos varieties cause 18 mesothelioma. 19 Q. Is there any potency difference between 20 the different fibers? 21 A. For mesothelioma, yes. There's no 22 established difference in potency for asbestosis 23 and lung cancer, but for mesothelioma, it looks 24 like the amphiboles are more potent. That means on TRANSCRIPT OF PROCEEDINGS 14:09:55 14:09:57 14:09:59 14:10:02 14:10:07 14:10:10 14:10:12 14:10:14 14:10:16 14:10:18 14:10:20 14:10:23 14:10:27 14:10:30 14:10:34 14:10:36 14:10:36 14:10:40 14:10:42 14:10:44 14:10:46 14:10:50 14:10:55 14:10:57 14:11:00 14:11:02 14:11:04 14:11:07 14:11:08 14:11:11 14:11:13 14:11:13 14:11:19 14:11:21 14:11:23 14:11:33 14:11:34 14:11:38 14:11:41 14:11:43 14:11:45 14:11:46 14:11:48 14:11:48 14:11:49 14:11:53 14:11:54 14:11:57 157 1 a fiber-per-fiber basis. 2 So they all cause the disease, they all 3 cause genetic damage, they all cause the diseases, 4 but it looks like it -- on a fiber-by-fiber basis, 5 the amphiboles, the crocidolite and amosite, are 6 more potent, so it's important to know what the 7 person's exposed to. 8 If all he or she is exposed to 9 chrysotile, that's what caused it. If all they're 10 exposed to are amphiboles, that's what caused it. 11 If they're exposed to both, that's what caused it. 12 Q. Did you ever have an opportunity to talk 13 to or treat or meet John Mulcahy? 14 A. No, of course not. We -- we established 15 I'm not a medical doctor. I did meet the family 16 today. 17 Q. Okay. And are your opinions about how 18 asbestos causes disease related to any of the 19 specifics in this particular case? 20 A. Well, only in the sense that if you 21 learn that the gentleman was exposed to asbestos 22 and that he in fact got a mesothelioma, I'm going 23 to try to explain what happened, but, you know, I 24 didn't look at the tissues. I don't know the 158 1 individual, so I'm not talking specifically 2 about -- I'm not talking specifically about that 3 person, but I'm talking about that process that 4 went on in that person's lung. 5 Q. What I'd like to do move next -- you 6 gave me a slide show, and I'd like to go through 7 that. 8 MS. DEAN: With the Court's permission, can 9 Professor Brody step down to point to the slides? 10 THE COURT: Sure. Watch your step. 11 THE WITNESS: Thank you. 12 BY MS. DEAN: 13 Q. First, am I starting -14 THE WITNESS: Am I all right? 15 THE COURT: Let me know if you can't hear. 16 If you could be consciousness that the 17 court reporters have to hear you. 18 THE WITNESS: Yes. Let me know if you can't 19 hear me. 20 BY MS. DEAN: 21 Q. Professor Brody, what's the significance 22 of this first slide? 23 A. So obviously this is a diagram, and 24 we've talked a little bit about that. 14:11:58 14:12:00 14:12:03 14:12:05 14:12:08 14:12:11 14:12:13 14:12:16 14:12:19 14:12:21 14:12:24 14:12:26 14:12:29 14:12:31 14:12:33 14:12:37 14:12:40 14:12:43 14:12:46 14:12:49 14:12:51 14:12:53 14:12:55 14:12:56 14:12:58 14:13:01 14:13:03 14:13:06 14:13:10 14:13:15 14:13:16 14:13:18 14:13:21 14:13:24 14:13:29 14:13:32 14:13:36 14:13:39 14:13:43 14:13:45 14:13:49 14:13:52 14:13:53 14:13:56 14:13:59 14:14:01 14:14:05 14:14:08 AUGUST 26, 2009 159 1 When you take a breath, the air comes 2 down into this tube here that we call the trachea 3 or windpipe, and you could feel the top of that in 4 your Adam's apple, that's your windpipe, and you 5 take a breath, and the air goes through a series of 6 tubes that we call conducting areas because they 7 conduct the air down into the lungs. 8 So as you sit here and you take a breath 9 pulling the air in, the air goes into the tubes, 10 and then in among the tubes is the gas exchange 11 area of the lung where we exchange oxygen and 12 carbon dioxide, and I'll go through that in a 13 little bit more. 14 On the outside of the lung, this black 15 line represents the pleura, and we've already seen 16 that thin Saran Wrap pleura that makes the lungs 17 airtight. 18 Are you going to run -- can I use that? 19 Q. Sure. 20 A. Thank you. 21 So -- go ahead. 22 Q. Sorry to interrupt you. What's 23 significant about this slide? 24 A. Well, what I wanted to say is that I use 160 1 diagrams a lot, but it helps to be able to see what 2 these things actually look like, so in order to do 3 that, we use different kinds of microscopes, and 4 this is called an electron microscope, and this 5 microscope was a victim of Hurricane Katrina, but I 6 used it for many years. 7 And I can take a piece of tissue as 8 small as a period at the end of the sentence or as 9 big as this device I'm holding in my hand and put 10 that tissue into this door right here, and inside 11 this column is a vacuum, so when I put the tissue 12 in the door and I start the microscope, the 13 electrons come down from the top of the chamber, 14 strike that sample and make an electron image. 15 The electrons pass over the surface of 16 that sample and produce an electron image 17 recreating the surface of that sample, whatever I 18 put in. 19 In front of me then appears that 20 recreation of that tissue, and then I can magnify 21 it anywhere from five times to hundreds of 22 thousands of times, and then there's a camera just 23 off the screen so I can take a permanent image of 24 whatever it is we're looking at. TRANSCRIPT OF PROCEEDINGS 14:14:10 14:14:12 14:14:15 14:14:18 14:14:24 14:14:24 14:14:27 14:14:29 14:14:32 14:14:34 14:14:36 14:14:37 14:14:41 14:14:43 14:14:46 14:14:46 14:14:50 14:14:52 14:14:57 14:15:00 14:15:03 14:15:05 14:15:06 14:15:08 14:15:14 14:15:16 14:15:18 14:15:21 14:15:23 14:15:25 14:15:27 14:15:28 14:15:30 14:15:33 14:15:37 14:15:41 14:15:42 14:15:46 14:15:49 14:15:51 14:15:55 14:15:58 14:16:00 14:16:00 14:16:03 14:16:05 14:16:07 14:16:12 161 1 So, for example, I cut a piece of tissue 2 out of the lung, and you see the conducting air was 3 here and you see the pleura running around the top, 4 and I cut this out and I take a picture of it, it 5 looks like this. 6 So here are these conducting areas that 7 that we have the diagram, then we have that very 8 thin pleura, you can see the sheet that runs along 9 the top of the lung, and now this is the gas 10 exchange area of the lung. 11 So you take a breath, the air comes down 12 and fills all the little spaces, and this is where 13 we exchange oxygen and carbon dioxide. 14 Q. Have you been able to get an even closer 15 look of that same image? 16 A. Yes. When we take a closer look, what 17 we're going to do is go onto the surface of the 18 area, and I want to show you a couple of our 19 defense mechanisms that we all have that protect us 20 against the dust we see, bacteria, pollen and all 21 the things that we face every day when we walk 22 around the streets. 23 So I'm going to focus the microscope 24 down in the airway. It could be any airway around 162 1 the lung, and I'm going to fill the screen with 2 what's in that red spot. So I'm going to focus the 3 microscope here, I'm going to take a -- I'm going 4 to fill the screen with what's in the red spot. 5 I'm going to take a picture. 6 Q. What do you see once you get that closer 7 picture? 8 A. So this is what the surface of our 9 airways looks like, and you can see this says, 10 "human bronchiole" -- bronchiole is a small area -11 and our airways are lined by these hair-like 12 structures. They're not really hairs at all, 13 they're sections of the cell surface that are 14 constantly moving in a synchronous wave-like 15 fashion, so if something lands on the surface of 16 the airway, it gets swept up to our mouth where we 17 can swallow it or cough it out. 18 Now here's a cell that has cilia on it, 19 here's a cell that doesn't have cilia on it. Some 20 of the cells that don't have cilia on them make 21 mucous. 22 So we have this combination of mucous 23 and cilia, and we call it the mucociliary escalator 24 because it escalates things up to our mouth. 14:16:15 14:16:17 14:16:17 14:16:20 14:16:23 14:16:26 14:16:30 14:16:34 14:16:35 14:16:38 14:16:39 14:16:43 14:16:46 14:16:49 14:16:53 14:16:55 14:16:57 14:17:03 14:17:06 14:17:07 14:17:08 14:17:09 14:17:11 14:17:13 14:17:15 14:17:19 14:17:22 14:17:25 14:17:29 14:17:34 14:17:37 14:17:39 14:17:42 14:17:45 14:17:50 14:17:53 14:17:53 14:17:56 14:17:57 14:17:59 14:18:02 14:18:04 14:18:07 14:18:09 14:18:12 14:18:15 14:18:20 14:18:23 AUGUST 26, 2009 163 1 Q. Is that one of our body's defense 2 mechanisms? 3 A. Absolutely, and I'm just getting over a 4 viral cold and I had some of my airway cells 5 damaged by a virus and -- excuse me, but I'm making 6 mucous and the cilia are carrying that mucous up to 7 my mouth, and that means that my mucociliary 8 escalator is working just fine. 9 Q. What is that measurement there at the 10 bottom for? 11 A. Okay. This says 10 with a little micron 12 bar -- with a little micron. This is a bar, it's 13 called a size marker, so the electron microscope 14 prints onto the pictures the size of these things. 15 If we wanted to know how long these 16 cilia are, for example, we can go to the size 17 marker, and this says, "10 microns." Well, it's 18 easy to see 10 microns, but this is magnified many 19 thousands of times. 20 The question is how big is a micron, 21 right? 22 Q. Yeah. Could you give us an idea? 23 A. I can. So if you take your thumb and 24 your forefinger and you make just a little space, 164 1 you can just barely see through with your naked 2 eye, you've made a one-millimeter space. Now take 3 that millimeter and divide it 1,000 times. You've 4 made 1,000 microns. 5 So one millimeter equals 1,000 microns, 6 and you can just barely see that with your naked 7 eye. You obviously can't see 10 microns, you can 8 barely see a thousand, but with the electron 9 microscope, it's easy to see 10 microns, and in 10 your mind's eye, you can stand this bar next to a 11 cilia and you can see they're about 8 to 10 microns 12 long. 13 Q. Is there anything else about this 14 particular -15 A. No. We've seen that defense mechanism, 16 and that's what covers these areas. 17 So now we're going to go past this 18 defense mechanism out into the gas exchange area 19 and look at this for just a minute, because 20 remember, the target cells for mesothelioma are out 21 here on the surface of the pleura, and I want you 22 to understand how the fibers get out to the target 23 site, and the way they do that is landing out here 24 in the gas exchange, so we'll see that and then TRANSCRIPT OF PROCEEDINGS 14:18:25 14:18:28 14:18:29 14:18:31 14:18:32 14:18:35 14:18:38 14:18:41 14:18:44 14:18:46 14:18:49 14:18:53 14:18:56 14:19:00 14:19:02 14:19:04 14:19:06 14:19:09 14:19:11 14:19:14 14:19:16 14:19:19 14:19:21 14:19:23 14:19:25 14:19:28 14:19:32 14:19:38 14:19:40 14:19:44 14:19:45 14:19:49 14:19:53 14:19:56 14:19:57 14:20:00 14:20:03 14:20:06 14:20:08 14:20:09 14:20:14 14:20:17 14:20:19 14:20:24 14:20:27 14:20:29 14:20:32 14:20:37 165 1 we'll see the pathways that the fibers take to get 2 to the target cells. 3 Q. Have you been able to get a picture of 4 the gas exchange to show the jury? 5 A. Exactly. So we're going here at the end 6 of the airway, and here we are. There's the end of 7 the airway where it opens into the gas exchange, 8 and you can see these little air spaces. 9 I like to think of these as little rooms 10 kind of like the room that we're standing in right 11 here or sitting in and surrounded by walls. There 12 are no ceilings to these rooms, so you take a 13 breath, the air comes rushing down the airway, it 14 fills the little rooms. 15 Now, notice if you took a saw and you 16 cut through the floor or the walls, you'd see where 17 all the electricity and the plumbing and everything 18 is running through the walls and the floor of this 19 room. The same thing in the lung. 20 When I was preparing this lung, I cut 21 through some of the walls and I opened up these 22 little holes in the walls, and this is where the 23 blood runs. 24 All the blood in our bodies has to run 166 1 through the walls of our air spaces, so when the 2 room air comes into the room, it's about 20 percent 3 oxygen, the oxygen in the room dissolves into the 4 blood that's running through the walls, it gets 5 picked up, carried to our brain and our fingertips. 6 In the meantime, the blood cells that 7 have picked up the carbon dioxide that we made come 8 back to you lungs, give up the carbon dioxide and 9 you exhale, and as long as everything is going 10 fine, you don't think much about it. In fact, if a 11 rat or mouse was running down here right now, it 12 would be doing exactly what you and I are doing, 13 inhaling and exhaling the room air using exactly 14 these same structures. 15 A mouse lung is about the size of the 16 tip of my little finger, but its cells and its air 17 spaces are almost exactly the same size as ours, 18 many fewer of them, of course, but they're doing 19 exactly what our cells do, and since they get the 20 same diseases, that's one of the reasons we use 21 them in our modeling system. 22 Q. Have you been able to get a closer-up 23 picture of one of the air spaces in this gas 24 exchange area? 14:20:37 14:20:40 14:20:42 14:20:44 14:20:47 14:20:51 14:20:52 14:20:55 14:20:57 14:21:00 14:21:03 14:21:06 14:21:10 14:21:12 14:21:14 14:21:16 14:21:18 14:21:20 14:21:24 14:21:27 14:21:27 14:21:29 14:21:31 14:21:34 14:21:38 14:21:40 14:21:43 14:21:46 14:21:48 14:21:53 14:21:56 14:21:58 14:22:03 14:22:06 14:22:08 14:22:11 14:22:15 14:22:18 14:22:24 14:22:26 14:22:27 14:22:28 14:22:31 14:22:35 14:22:40 14:22:42 14:22:45 14:22:48 AUGUST 26, 2009 167 1 A. Yes. We'll go into a single human air 2 space, so we have no ceiling and you will be 3 hanging over the air space and you'll be looking 4 down at the carpet, and the carpet -- so here's a 5 gray carpet made up of carpet squares, so what 6 we're going to do is we're going to look at the 7 carpet that lines all of our air spaces, and it's a 8 similar kind of thing. 9 The cell -- I will give you the full 10 name of the cell. It's an epithelial cell. It 11 covers the surface, so we're going to look down at 12 these epithelial cells, and it's a complete 13 covering, not onlyjust the floor, but the carpet 14 goes up the wall and into the next room and the 15 next room, so we have this complete carpet of cells 16 that covers all our air spaces. 17 So we're going to poise over one of 18 these air spaces, it could be any one of these, and 19 there we are. Now we're looking at a single human 20 air space. 21 Q. What are we seeing there? 22 A. Okay. Well, I'm outlining one of the 23 carpet squares for you, but nature doesn't make 24 squares very well; nature makes smooth surfaces. 168 1 So this is more like a carpet oval, and 2 it's next to another oddly shaped cell over here 3 and another oddly shaped cell, so we have this 4 patchwork of hundreds of millions of cells that 5 make up the carpet that covers our air space, and 6 when somebody inhales asbestos fibers, you'll see 7 those fibers go shooting right down and land on the 8 carpet, and I'll tell you what happens after that. 9 But there's another kind of epithelial 10 cell here. These cells are smaller, they have 11 little bumps all over them. If the big flat carpet 12 cells get injured by infection or asbestos, we have 13 these smaller cells that start to divide and take 14 the place and spread out, cover the wound. It's an 15 essential repair mechanism that we all have in our 16 air spaces. 17 Q. What are those called? 18 A. Well, fortunately, the big flat cells 19 are called type 1 epithelial cells and the other 20 smaller cells are type 2 epithelial cells. 21 Okay. So I'm going to -- there's one 22 more slide I have to show you. We have a final 23 defense -- line of defense in the lung. 24 Q. And what's that? TRANSCRIPT OF PROCEEDINGS 14:22:48 14:22:51 14:22:54 14:22:56 14:22:59 14:23:02 14:23:03 14:23:05 14:23:07 14:23:09 14:23:11 14:23:16 14:23:20 14:23:22 14:23:24 14:23:26 14:23:31 14:23:34 14:23:36 14:23:38 14:23:40 14:23:44 14:23:45 14:23:48 169 1 A. In order to show you that, I'm going to 2 focus down on the carpet here, and you remember the 3 cell with the bumps all over it? I'm going to take 4 this picture, and there's the cell now with the 5 bumps all over it, so you can see I focused down on 6 the carpet. 7 Here's the carpet down here. There's 8 the cell with the bumps, and now there are two 9 other cells. There's this one that's kind of 10 ruffled and not going anywhere and then there's 11 this cell with a tail end and two what are call 12 false feet. If you've ever had a biology class, 13 you remember pseudopods, false feet. 14 So I know the cell is going in this 15 direction when I caught it moving, and it was going 16 after this pollen grain when I caught it. 17 So this lung once belonged to somebody 18 who was killed in a motorcycle accident, and I was 19 on the medical examiner's autopsy call, so I went 20 in and prepared that person's lung, and I went from 21 air space to air space with my electron microscope 22 looking for interesting things, and one of the 23 things I found were these two cells, this one and 24 this one, and they're called macrophages -- "macro" 14:23:51 14:23:55 14:23:57 14:24:00 14:24:04 14:24:07 14:24:10 14:24:13 14:24:14 14:24:16 14:24:20 14:24:24 14:24:28 14:24:31 14:24:35 14:24:38 14:24:42 14:24:42 14:24:45 14:24:45 14:24:48 14:24:49 14:24:51 14:24:55 170 1 means big and "phag" means eater -- and they patrol 2 our air space surfaces. 3 Each one of us has about -- if we don't 4 smoke has about one or two macrophages in every 5 space, and they can detect the presence of foreign 6 particles like this pollen grain this person 7 obviously inhaled when he was riding along on his 8 motorcycle. 9 In my laboratory, we discovered the 10 signal that attracts macrophages to asbestos 11 fibers. There are chemical signals that these 12 macrophages can detect, and they migrate and move, 13 pick up the particle and then get onto the 14 mucociliary escalator. Every time you swallow, 15 we're swallowing a few of our friends, these 16 macrophages. That's normal. That's what's 17 supposed to happen. 18 Q. Do they protect us against asbestos 19 fibers? 20 A. Absolutely. They are constantly trying 21 to move asbestos fibers from the lung. We have 22 recovered macrophages from the lungs of people 23 decades -- with asbestos in them decades after they 24 have finished their exposureto asbestos. 14:24:58 14:25:01 14:25:02 14:25:03 14:25:06 14:25:08 14:25:10 14:25:11 14:25:13 14:25:15 14:25:19 14:25:22 14:25:25 14:25:28 14:25:31 14:25:34 14:25:37 14:25:39 14:25:42 14:25:46 14:25:50 14:25:54 14:25:56 14:25:58 14:26:01 14:26:03 14:26:06 14:26:02 14:26:09 14:26:12 14:26:13 14:26:14 14:26:18 14:26:20 14:26:23 14:26:27 14:26:28 14:26:30 14:26:33 14:26:33 14:26:37 14:26:39 14:26:44 14:26:44 14:26:47 14:26:49 14:26:53 14:26:56 AUGUST 26, 2009 171 1 Q. You've gone through the different 2 defense mechanisms in our lungs. 3 Can you now tell us a little bit about 4 how asbestos can get through all of those and still 5 get to our bodies? 6 A. Absolutely. So let's talk about 7 asbestos. 8 Now, this is chrysotile asbestos. I 9 told you the different types of asbestos. I've 10 used mostly chrysotile in my work because that's 95 11 percent of the word's use. I use chrysotile 12 mostly, but I've done these same experiments that 13 I've talking about here with crocidolite and 14 amosite. So I talk about asbestos in general 15 because asbestos does what all the asbestos 16 varieties do. 17 Now, this is a fiber bundle. You can 18 see that all the fibers are bundled together, and 19 let's look at the size marker. This is a 1-micron 20 bar, and it's easy to see 1 micron at a 21 magnification of 4,300 times. 22 Now, if you want to know how big and 23 small these fibers are, you take this little marker 2 4 in your mind's eye and you stand it up along here. 172 1 You can see you can probably get five or six of 2 these bars down here, so this straight fiber here 3 is about 5 or 6 microns long. 4 Q. I want to pause there because you just 5 said a straight fiber was a chrysotile fiber? 6 A. Yeah. 7 Q. So chrysotile can be straight? 8 A. Sure. There are a lot of curly fibers 9 and there are a lot of -- there are curly fibers 10 and there are some straight fibers. There are more 11 curly fibers than straight fibers, that's the 12 nature of chrysotile. But the other nature of 13 chrysotile is that the fibers are constantly 14 breaking down. You can see fragments of 15 chrysotile, as well. 16 Now, all of these asbestos components, 17 whether it's the long fibers, some of them hundreds 18 of microns long or the fibers that are 9 or 19 10 microns or the fragments that are 3 or 20 4 microns long, even the ones that are 21 extraordinarily thin, you see those that are less 22 than 1 micron in diameter, they are all 23 participating in the disease process. They all 24 bind to DNA, genetic material. They all bind to TRANSCRIPT OF PROCEEDINGS 14:27:00 14:27:03 14:27:05 14:27:09 14:27:11 14:27:13 14:27:16 14:27:18 14:27:19 14:27:19 14:27:22 14:27:25 14:27:29 14:27:32 14:27:34 14:27:36 14:27:37 14:27:40 14:27:42 14:27:44 14:27:48 14:27:51 14:27:55 14:27:58 173 1 the membranes. They all participate. 2 Q. And have you been able to see that 3 through your microscope, where the asbestos is 4 actually binding to our DNA? 5 A. Yes. What we are going to do in the 6 next couple of slides is, I'm going to show you now 7 from my animal models. Because you can't use human 8 models to understand what is happening next. 9 Q. Why not? 10 A. Well, you don't get to be in the 11 workplace and watch the dust land in the person's 12 lung and then take a piece of lung. You don't get 13 to do that. So the only way to find out where the 14 fibers land first and then how they interact with 15 the cells that I just showed you is to use the 16 model system. 17 Now, what I learned from Dr. Wager was 18 that the best way to do that was to have these 19 chambers. They are about 6 feet high, 4 feet wide, 20 with an asbestos generator at the top of the 21 chamber, and it makes a dusty environment in the 22 chamber. You put the animals, usually rats or 23 mice, into the chambers for as long as I prescribe 24 the experiment. It could be an hour, it could be 14:28:01 14:28:03 14:28:05 14:28:08 14:28:11 14:28:15 14:28:17 14:28:21 14:28:23 14:28:27 14:28:30 14:28:33 14:28:36 14:28:38 14:28:40 14:28:41 14:28:41 14:28:43 14:28:46 14:28:50 14:28:52 14:28:55 14:28:57 14:29:01 174 1 two hours, it could be days or weeks. 2 Now, one thing that is important to note 3 here is Dr. Wager and a number of other people have 4 produced these final clinical diseases in the 5 animals. They have produced asbestosis, lung 6 cancers, mesotheliomas. A number of investigators 7 have done that, so I did not do that. 8 In other words, I did not design the 9 experiments to bring the animals to the clinic. We 10 know, it's proven over and over again, that if you 11 keep exposing them, they will show up at the clinic 12 with these various diseases. 13 Q. Is it fair to say that you could not do 14 the original research because it had already been 15 done? 16 A. It had already been done to show that if 17 you keep exposing them, you will get -- some 18 percentage of them. There is clearly genetic 19 susceptibility, even though we try to factor a lot 20 of that in our animal studies, there still is 21 genetic susceptibility within the animals, as well. 22 But my point is that I expose the 23 animals for a brief period, enough to be able to 24 sort out these answers of where the fibers go, what 14:29:04 14:29:07 14:29:10 14:29:12 14:29:13 14:29:16 14:29:19 14:29:22 14:29:25 14:29:28 14:29:30 14:29:32 14:29:35 14:29:38 14:29:41 14:29:45 14:29:48 14:29:51 14:29:53 14:29:56 14:29:58 14:30:00 14:30:02 14:30:05 14:30:06 14:30:09 14:30:13 14:30:16 14:30:19 14:30:20 14:30:23 14:30:26 14:30:29 14:30:29 14:30:32 14:30:35 14:30:39 14:30:40 14:30:44 14:30:46 14:30:51 14:30:54 14:30:59 14:31:01 14:31:05 14:31:08 14:31:10 14:31:13 AUGUST 26, 2009 175 1 do they do, how do they get to the target sites and 2 how do they cause disease, so I can show you that 3 in the next couple of slides. 4 Q. Please do. 5 A. So you are familiar with this now. This 6 is the end of the airway, as it opens out into the 7 gas exchange. Here are a whole bunch of little 8 rooms. Here you can see the holes in the walls 9 where the blood flows. You have seen all of this 10 now, but this is from a rat that has been exposed 11 to chrysotile asbestos for a single hour. 12 After the hour of exposure, I take the 13 animals out of the chamber, and I give them an 14 overdose of anesthetic. "Overdose," of course, 15 means they do not wake up from that, and then I can 16 go ahead and prepare the lungs, as I have shown you 17 we can do, and then we can look at the various 18 parts of the lung. So this is one of these areas 19 of the lung, it's one of millions of areas like 20 this around the lung. I'm showing you one of them. 21 Of course, when I did my work and 22 published it, I had to look at thousands of them to 23 prove to my peers that I was actually -- what I was 24 telling them was true. 176 1 Q. So do you have a picture of a single 2 room again so that we can see it closer? 3 A. Exactly, that is where we are headed. 4 I'm going to take a picture of this spot right 5 here, immediately after the single hour of 6 exposure. So that means every fiber we see on the 7 carpet lands there during that first hour. That is 8 the only way the fibers are going to get there. 9 Q. Okay. 10 A. So let's focus the microscope right 11 here, right here, take a picture. Here is the 12 carpet. This a 10-micron bar. 13 Let mejust make sure you understand. 14 This space right here is this space right here, so 15 we are looking at this spot right here. Remember, 16 what we saw in the chrysotile fiber bundle. We saw 17 straight fibers, we saw curly fibers, we saw long 18 fibers, where this one goes, and we saw short 19 fibers. Again, the same thing you saw sitting out 20 in the dish, now you see in the lung because we 21 made an aerosol of the dust where you have a whole 22 variety of different shapes and sizes, and those 23 are now sitting on the surface of the lung. 24 The question, of course, scientists ask, TRANSCRIPT OF PROCEEDINGS 14:31:15 14:31:19 14:31:23 14:31:28 14:31:31 14:31:34 14:31:38 14:31:40 14:31:43 14:31:46 14:31:48 14:31:51 14:31:53 14:31:53 14:31:55 14:31:56 14:31:57 14:32:01 14:32:04 14:32:07 14:32:10 14:32:11 14:32:14 14:32:16 14:32:18 14:32:20 14:32:22 14:32:25 14:32:29 14:32:33 14:32:36 14:32:39 14:32:42 14:32:45 14:32:47 14:32:49 14:32:53 14:32:56 14:33:01 14:33:04 14:33:06 14:33:09 14:33:12 14:33:15 14:33:18 14:33:22 14:33:25 14:33:27 177 1 Okay, they are there, what happens next? What I 2 discovered was that these cells that make up this 3 carpet are very active, and they respond in a 4 dynamic way to the presence of these fibers. And 5 what I published was that these cells actually come 6 over the top of the fibers and shove a percentage 7 of them underneath the carpet. 8 Now, have we all heard, we have some 9 asbestos in our lungs? 10 Q. It's fair -- you are the first witness. 11 That has only been heard by attorneys, so it's 12 important to have the witness that has a background 13 to say it. 14 Can you explain to the jury how asbestos 15 is in our lungs, just from walking around the 16 streets outside? 17 A. Right. So we all have some asbestos in 18 our lungs. If that is the only place you got it, 19 as I said before, I don't expect it to cause 20 disease. But where is it? It's sitting under the 21 carpet. 22 So I have looked at a lot of human 23 lungs, and I have looked at asbestos fibers in 24 human lungs -- and the fibers largely, mostly, are 178 1 sitting under the carpet. And they get there a few 2 at a time and they land on the carpet, and they get 3 taken up in and amongst our millions of airspaces, 4 and we are designed to do that. Air-breathing 5 animals are designed to inhale particles and store 6 a lot of them over time, even millions of them. 7 It's not all that many millions of fibers. 8 Q. Have you been able to evaluate once the 9 asbestos fibers get into the gas exchange and under 10 the carpet what happens? 11 A. Exactly. So that is the point. If you 12 have a few fibers there, not a problem. As you 13 keep loading that compartment, that can lead to the 14 other -- the diseases asbestosis and mesothelioma. 15 Lung cancer is a separate story. Lung 16 cancer starts in the walls of the airway, so we are 17 not worried about that right now in this 18 discussion. We are talking about asbestosis. 19 I told you, if you load this carpet with 20 high levels for many decades, you can get scar 21 tissue asbestosis. Now we are talking about the 22 kind of exposure where some of those fibers, a 23 sufficient number of those fibers that get under 24 the carpet can reach the pleura and interact with 14:33:30 14:33:31 14:33:31 14:33:33 14:33:34 14:33:38 14:33:42 14:33:43 14:33:46 14:33:54 14:33:54 14:33:56 14:33:59 14:34:02 14:34:06 14:34:09 14:34:11 14:34:14 14:34:16 14:34:18 14:34:22 14:34:25 14:34:28 14:34:33 14:34:37 14:34:38 14:34:41 14:34:41 14:34:43 14:34:45 14:34:46 14:34:49 14:34:52 14:34:55 14:34:59 14:35:01 14:35:05 14:35:09 14:35:12 14:35:16 14:35:20 14:35:23 14:35:27 14:35:27 14:35:30 14:35:33 14:35:35 14:35:36 AUGUST 26, 2009 179 1 the mesothelial cells. So the question is, how do 2 they get there? 3 Q. How do they get from the lung to the 4 lining of the lung? 5 A. The first thing that we find is that the 6 carpet cells come up over the top of the fibers and 7 cover them. 8 You see how you can see the fibers there 9 and you can't see them there? That is because they 10 are covered by the carpet. And we can go to the 11 next slide, and I'll show you that a little better. 12 This is another experiment, another set of animals. 13 Here is an airspace here, another airspace. Here 14 is a little fiber bundle right here. There is a 15 little fiber sort of sticking out here, but most of 16 it is covered by the carpet. 17 There is a little fiber bundle there. 18 Some of it you can see, some are covered. Here is 19 a fiber that is completely covered by the carpet, 20 so this is a dynamic situation. The fibers that 21 went in there 20 minutes earlier than this picture 22 are already covered. The ones that just landed, 23 not covered yet, so it's an ongoing process. 24 Every time fibers land, some proportion 180 1 of them get covered, some proportion of them get 2 carried away by microphages. It's an ongoing 3 process. 4 Now, notice these structures here that 5 look like doughnuts. 6 Q. What are those? 7 A. Well, these are red blood cells, so 8 these are red blood cells. The reason they look 9 like doughnuts is because they have a depression in 10 the center. Not a hole, but a depression. 11 Now, this is a rat, and this red blood 12 cell from this side to this side is 5 microns 13 across. Now, that is the size of a rat red blood 14 cell. That is also the size of your red blood 15 cells, my red cells, dogs, cats, guinea pigs, rats 16 mice, humans. We all have the same red blood cell 17 size, shape, and function. That is what works best 18 for air-breathing mammals, is to have a red blood 19 cell that looks and acts like this. 20 Q. Why are those red blood cells important, 21 in terms of the asbestos fibers that are now 22 underneath the carpet? 23 A. Two things. First is that this shows 24 you the pattern of blood flow. This is where the TRANSCRIPT OF PROCEEDINGS 14:35:40 14:35:43 14:35:44 14:35:48 14:35:50 14:35:54 14:35:56 14:35:58 14:36:04 14:36:09 14:36:12 14:36:12 14:36:14 14:36:18 14:36:22 14:36:25 14:36:29 14:36:32 14:36:34 14:36:38 14:36:42 14:36:45 14:36:48 14:36:51 14:36:54 14:36:45 14:36:57 14:37:00 14:37:03 14:37:04 14:37:06 14:37:11 14:37:16 14:37:21 14:37:25 14:37:30 14:37:31 14:37:34 14:37:37 14:37:40 14:37:44 14:37:48 14:37:51 14:37:53 14:37:54 14:37:59 14:38:03 14:38:03 181 1 blood is flowing through the capillaries and the 2 walls, and you can see this fiber going into the 3 flow, and we demonstrated that asbestos fibers can 4 get into the blood flow. Once they get into the 5 blood, of course, they can go anywhere in the body. 6 More importantly, the second point, is 7 that wherever the blood flows in the body, there is 8 another fluid called lymph, l-y-m-p-h. 9 Lymph flows around the blood vessels. 10 Wherever there is blood flowing, there is lymph 11 flowing around it. Now, you heard about -12 Q. Why is that important? 13 A. It's important because lymph, we found 14 and other investigators have found, carries 15 asbestos fibers to the pleura. The pattern of 16 lymph flow in the lung is shown in the next slide 17 in this diagram. This is another Netter diagram. 18 Dr. Netter here is showing these 19 lymphatic vessels, many of which end at the pleura, 20 and if you look at the surface of the pleura, you 21 can see this net-like pattern, and that is because 22 of the lymphatic flow of the lung. So if asbestos 23 fibers are getting into the lymph flow, then they 24 can flow right to the pleura. 182 1 Now, what is the proof that they are 2 getting into the lymphatic flow? Well, the proof 3 is found in these little green blobs right here, 4 and these little green blobs are called lymph 5 nodes. Maybe you have heard about your lymph 6 nodes. Sometimes you can feel them swelling up in 7 your armpits or on your neck or your groin, if you 8 are fighting a cold because lymph nodes collect 9 cells of the immune system. It turns out that 10 these lymph nodes filter all of the lymph fluid. 11 Wherever the lymph flows, there are 12 these nodes that are filtering the lymph fluid. So 13 if asbestos is flowing in the lymph, they should 14 collect in the lymph nodes, and that's, in fact, 15 what has been found. They have been found not only 16 around the lung but in the peritoneal cavity, that 17 holds our stomach and our intestines. Those lymph 18 nodes also contain asbestos fibers for people that 19 have been occupationally exposed. 20 And, of course, that asbestos got into 21 the lung, landed on the carpet, got taken up by the 22 lymphatics and now is deposited around the lung, 23 and some of it reaches the pleura. 24 Q. Is there any type of asbestos out of the 14:38:05 14:38:09 14:38:13 14:38:13 14:38:14 14:38:17 14:38:21 14:38:27 14:38:30 14:38:33 14:38:36 14:38:40 14:38:41 14:38:42 14:38:46 14:38:48 14:38:49 14:38:52 14:38:56 14:38:57 14:39:00 14:39:04 14:39:07 14:39:10 14:39:10 14:39:13 14:39:16 14:39:20 14:39:23 14:39:27 14:39:29 14:39:32 14:39:32 14:39:35 14:39:37 14:39:41 14:39:44 14:39:47 14:39:50 14:39:51 14:39:57 14:40:01 14:40:04 14:40:06 14:40:08 14:40:10 14:40:14 14:40:16 AUGUST 26, 2009 183 1 chrysotile, amosite, and crocidolite that gets from 2 the lung to the pleura preferentially, like more 3 often? 4 A. Well, it looks like it. I mean, those 5 are hard experiments to do, but the experiments 6 that have been done with human lungs, looking at 7 that question, chrysotile asbestos appears to 8 predominate at the pleura. And it's probably 9 because chrysotile asbestos breaks down more 10 readily. It is more easily cleared out of the lung 11 tissue and gets into the lymphatic flow. In fact, 12 we will see that in the next slide. 13 Q. I have heard that called preferential 14 translocation. Am I using the right words? 15 A. That's fine. Yes. Preferential 16 translocation or movement to the pleura. 17 Q. What does this next slide show? 18 A. If we take a piece of lung tissue out of 19 her, on this diagram and put it in the next 20 diagram, it summarizes what I have told you about 21 lymphatic flow. So let's do that. Let's cut a 22 piece out here, so the pleura is on the right side, 23 and here is the pleura now. 24 And what the artist did is the fiber 184 1 coming down and landing on the carpet. See, here 2 is the airway, here are the little rooms, the 3 artist has the fiber landing on the carpet. Now he 4 has a little bit of fiber sticking out here, and I 5 bet he forgot or did not know about this picture 6 that I took, with a little bit of fiber sticking 7 out and the rest of it hidden underneath the 8 carpet. 9 So what this artist then is showing is 10 that little bit of fiber, and the rest of this that 11 is sitting under the carpet, he says, Lymphatic 12 fiber transport to the pleura, which is exactly 13 what I'm saying. You can see this channel that 14 that is carrying fibers to the pleura. Once the 15 fiber is at the pleura, they can interact with the 16 normal mesothelial cells that make up that thin, 17 Saran Wrap-like coating around our lungs, and they 18 are the target cells for mesothelioma. 19 Q. Have you been able to do more research 20 on those target cells? 21 A. Right. So what we are doing is, we are 22 looking at how fibers interact with cells. Some 23 investigators use mesothelioma cells, and I'll show 24 you that. Others use all different kinds of cells. TRANSCRIPT OF PROCEEDINGS 14:40:19 14:40:23 14:40:23 14:40:26 14:40:28 14:40:32 14:40:35 14:40:38 14:40:41 14:40:46 14:40:47 14:40:49 14:40:52 14:40:57 14:40:59 14:41:02 14:41:04 14:41:06 14:41:11 14:41:13 14:41:17 14:41:21 14:41:24 14:41:28 14:41:28 14:41:30 14:41:34 14:41:38 14:41:42 14:41:45 14:41:47 14:41:50 14:41:52 14:41:52 14:41:54 14:41:56 14:42:00 14:42:05 14:42:07 14:42:11 14:42:14 14:42:14 14:42:17 14:42:20 14:42:21 14:42:24 14:42:28 14:42:32 185 1 They all tell us something about what asbestos 2 does. 3 Q. So what does that next slide tell us? 4 A. Okay. Let's stick with this. So this 5 is -- so we have the fibers at the target cell. 6 And I'm going to spend the rest of the time -- I 7 just have a few more slides, and I'm going to spend 8 the rest of the time explaining how asbestos acts 9 as a carcinogen or cancer-causing agent. 10 I'll start with this slide. This is the 11 cover of the proceedings of the meeting I was at a 12 few years ago, and the topic of the meeting was how 13 fibers cause cancer. Carcino, cancer; genesis, 14 formation. How fibers cause cancer. 15 I gave a talk at this meeting, among 16 other investigators, and we talked about the 17 cellular aspects. And I told you about -- and I 18 have shown you cells and I have shown you how cells 19 pick up asbestos fibers, but you can't talk about 20 carcinogenesis unless you talk about the molecular 21 aspects of disease. That means your genes. Cancer 22 is a genetic disease. 23 Q. So have you looked at the molecular 24 aspects? 186 1 A. Yes. In fact, the department that I'm 2 in right now at North Carolina State is called 3 molecular biomedical sciences. That is the name of 4 our department. So biology of medicine, 5 biomedical, biology of medicine, at the molecular 6 level, at the genetic level. That is where we are 7 today. That is where science is, trying to 8 understand what happens to genes and how they 9 control the disease. 10 Q. What have you been able to determine? 11 A. Right. So I'll talk to you today about 12 the molecular aspects of carcinogenesis, and one of 13 the ways that we do that is by taking cells out of 14 humans or out of animals and put those cells in a 15 dish. You take millions of cells and put them in a 16 dish and give them the right nutrients and then 17 they grow and multiply in the dish, if you give 18 them the right kinds of nutrients. 19 And then you can add the carcinogens or 20 the suspected agents you want to study and you can 21 watch those interactions, so it's a very helpful 22 kind of experiment. And on the cover of this 23 proceeding, there were two cells like that, two out 24 of millions that are in the dish. There are a 14:42:33 14:42:34 14:42:37 14:42:40 14:42:43 14:42:47 14:42:51 14:42:55 14:42:56 14:42:59 14:43:02 14:43:06 14:43:10 14:43:10 14:43:14 14:43:16 14:43:20 14:43:24 14:43:28 14:43:32 14:43:36 14:43:39 14:43:41 14:43:44 14:43:44 14:43:47 14:43:50 14:43:55 14:44:00 14:44:01 14:44:02 14:44:05 14:44:09 14:44:12 14:44:16 14:44:18 14:44:20 14:44:22 14:44:23 14:44:26 14:44:29 14:44:31 14:44:34 14:44:38 14:44:41 14:44:43 14:44:46 14:44:49 AUGUST 26, 2009 187 1 picture of two of them. You can see one of them 2 here, and there is another one over here. 3 And fibers have been added to these 4 cells, and you can see there is a long fiber here, 5 some short fibers. You notice how these fibers are 6 collected around the center circle in the cell. 7 Notice that the fibers are excluded from the center 8 circle. 9 Well, the center circle of the cell is 10 called the nucleus and the nucleus of our cells 11 contains all of our DNA, all of our genes. DNA 12 simply means genetic material. So the DNA is in 13 that center circle, the nucleus, and we have this 14 membrane around the nucleus that protects our DNA. 15 That is wonderful. 16 Our DNA is protected, but one thing that 17 scientists have known for a long time is when cells 18 divide, that is, they replicate, make new cells, we 19 lose that protective nuclear membrane. So we asked 20 in my laboratory what would happen if we added 21 asbestos and minerals to the cells when they are 22 dividing, and I can show you that. 23 Q. Do you have pictures of the cell 24 division? 188 1 A. I do. As we always should look at what 2 is normal first, this is what is supposed to 3 happen. Here are three cells, one, two, three. 4 It's the two cells on the outside are not dividing. 5 Here is the nucleus. The DNA has been stained blue 6 so that you can see it. 7 And in the center, the center cell has 8 received a signal to divide. Now, I'll explain 9 what that means. If you fall down and you scrape 10 your skin, you want to grow more skin cells just 11 like the ones that you had, and so what happens is 12 that serum that you have in your blood sends a 13 growth signal to the surrounding skin cells and 14 they start to divide. 15 Normally, your skin has a growth rate of 16 about 10 percent. If you look at your skin 17 anywhere on your skin, you would have about 10 18 percent of those cells are making new cells, but if 19 you look around a wound, 40 or 50 percent of those 20 cells are growing because they need to replace that 21 wound. Now, all of that growth -- and this is very 22 important to cancer. All of that growth is tightly 23 regulated by sets of genes. 24 We all have -- humans have about 20,000 TRANSCRIPT OF PROCEEDINGS 14:44:52 14:44:56 14:44:59 14:45:02 14:45:05 14:45:07 14:45:10 14:45:13 14:45:17 14:45:22 14:45:22 14:45:23 14:45:28 14:45:30 14:45:34 14:45:36 14:45:39 14:45:44 14:45:48 14:45:51 14:45:52 14:45:56 14:45:59 14:46:03 14:46:03 14:46:06 14:46:10 14:46:14 14:46:21 14:46:23 14:46:26 14:46:30 14:46:30 14:46:30 14:46:32 14:46:33 14:46:37 14:46:40 14:46:42 14:46:46 14:46:48 14:46:51 14:46:52 14:46:54 14:46:58 14:47:00 14:47:07 14:47:10 189 1 or so genes, and you can see what a few of those 2 genes do. You look around, you see different hair 3 color, eye color, skin color, but that is only what 4 a few of those genes can do. Most of the genes you 5 don't get to see what they are doing. They are 6 making this fantastic waterproof skin, they are 7 making the enzymes that digest our food, et cetera. 8 Of those 20,000 genes, about 100 or so 9 of them are dedicated to controlling growth, cell 10 growth. 11 Q. Why is that important? 12 A. Well, cancer -- cancer, and this is the 13 simplest definition of cancer. Cancer is the loss 14 of control of cell growth. Cancer is the loss of 15 control of cell growth. 16 Cancer occurs when you have errors or 17 mistakes in a set of genes, that is 100 or so that 18 I was telling you about. Errors or mistakes in a 19 set of genes that control cell growth. That is 20 what causes cancer. 21 Now, go back to the dividing cell. This 22 cell received a signal to divide because we want to 23 make some new cells. The object is to make two new 24 cells just like the original one. The only way you 190 1 are going to do that is by making another set of 2 DNA,just like the original set, and the way that 3 we do that is by condensing the DNA into these 4 white threads called chromosomes. So chromosomes 5 are bands of condensed DNA. 6 Q. Is there a name for the new cell? 7 A. Yes, they are called daughter cells. We 8 are going to see those in one second. Let's look 9 at our chromosomes first. 10 Q. Okay. What is that next slide? 11 A. What I have done is, I have opened up 12 the cell and spread out the chromosomes so you can 13 see them. And humans have 23 pairs of chromosomes. 14 You have one from your mother and one from your 15 father, and notice the light and dark bands that 16 line up on the chromosomes. 17 Those light and dark bands represent 18 where our different genes are, and there is a human 19 chromosome map that has done a pretty goodjob of 20 knowing where each of our genes is. 21 The important point for this discussion 22 is that when you make new cells, each gene must be 23 on the correct chromosome in the right place on 24 that chromosome. There is no mixing and matching 14:47:13 14:47:14 14:47:17 14:47:20 14:47:23 14:47:26 14:47:30 14:47:31 14:47:34 14:47:39 14:47:39 14:47:41 14:47:42 14:47:45 14:47:48 14:47:52 14:47:56 14:47:59 14:48:00 14:48:03 14:48:06 14:48:10 14:48:14 14:48:19 14:48:22 14:48:23 14:48:24 14:48:27 14:48:33 14:48:36 14:48:39 14:48:40 14:48:44 14:48:47 14:48:48 14:48:52 14:48:54 14:48:56 14:48:58 14:49:01 14:49:03 14:49:07 14:49:11 14:49:13 14:49:15 14:49:19 14:49:22 14:49:28 AUGUST 26, 2009 191 1 allowed. 2 So you have to have what is called 3 faithful replication, and let's finish that up here 4 on this slide. Here is normal cell division. You 5 have the chromosomes forming. Now they are 6 dividing, they are replicating, so that you have 7 made perfect copies. If you have faithful 8 replication, you get two new daughter cells just 9 like the original. That is what is supposed to 10 happen every time. 11 Q. What happens sometimes when asbestos 12 gets in the picture? 13 A. Right. So that's -- this is from 14 experiment from my laboratory, and over here in 15 panel A, you can see a normal divided cell, no 16 fibers, half the chromosomes one side, half the 17 other, and you get two new daughter cells just like 18 you're supposed to. 19 Over here in panel B, there's an 20 amphibole fiber that's been added, so the cell's 21 about 40 microns from one end to the next, so this 22 fiber is about 30 microns, 20 microns, 10 microns, 23 5-micron fibers, most of the DNA has moved to the 24 new forming cells, but some of the DNA is bound to 192 1 the surface of the asbestos. 2 Q. Is that good? 3 A. That's not good, and that results in a 4 condition called aneuploidy. "Aneuploidy" simply 5 means abnormal chromosome separation. 6 Now, let's see that in mesothelial 7 cells, and then I'll talk about -- and this is the 8 next-to-the-last slide, and I'll explain the 9 significance of aneuploidy. 10 So these are mesothelial cells, 11 chrysotile has been added, here's a normal cell, 12 half the chromosome to the one side, half to the 13 other, two new daughter cells form. 14 These mesothelial cells, the daughter 15 cells actually have formed, but there's a 16 chrysotile fiber extending between the two cells, 17 and there's some DNA bound to the asbestos, to the 18 chrysotile. That results in an aneuploid. 19 Q. What does "aneuploid" mean? 20 A. So aneuploid, I just -- the definition 21 means abnormal chromosome separation, but the 22 important point here is that these are not cancer 23 cells, but the door has been opened. 24 I told you that cancer is the loss of TRANSCRIPT OF PROCEEDINGS 14:49:30 14:49:33 14:49:36 14:49:36 14:49:40 14:49:43 14:49:46 14:49:49 14:49:52 14:49:55 14:49:59 14:50:01 14:50:03 14:50:06 14:50:09 14:50:12 14:50:15 14:50:18 14:50:23 14:50:25 14:50:27 14:50:31 14:50:34 14:50:35 14:50:38 14:50:42 14:50:44 14:50:47 14:50:50 14:50:53 14:50:56 14:51:00 14:51:02 14:51:03 14:51:04 14:51:07 14:51:10 14:51:12 14:51:14 14:51:18 14:51:18 14:51:21 14:51:21 14:51:22 14:51:24 14:51:25 14:51:27 14:51:30 193 1 control of cell growth, and that occurs where there 2 are errors or mistakes in genes that control cell 3 growth. 4 One of the features of these growth cell 5 genes is when a cell becomes aneuploid, it dies. 6 We're always getting aneuploid cells. You get 7 sunburn, you get a bunch of aneuploid cells that 8 have DNA damage, but they all die, and they die 9 because we have a set of genes that sends these 10 damaged cells down a death pathway, and you don't 11 hear anything more about them. That's what's 12 supposed to happen every time. 13 But what if this bunch of DNA that's not 14 in its respective location and it's not working -15 what if there is a set or -- one or a set of genes 16 that controls the death pathway and they're 17 non-functional? Now the cell can go on and pass on 18 that error. That's a requirement for cancer. 19 And this is the last slide, and with 20 this last slide, I can summarize what I've told you 21 about cancer and explain what's going on in the 22 latency period this many decades. 23 Q. Could you please show us? 24 A. So this is a diagram that lays out the 194 1 single layer of cells very much like mesothelial 2 cells. They're not specifically for mesothelioma 3 at all, it's a general principle related to the 4 cancer formation, but these are single cells much 5 like mesothelial cells. You can see the nucleus 6 and the cells are adjacent to each other, and now 7 the artist gives us a couple lightning bolts and 8 says, "DNA damage." 9 Now, lightning doesn't cause DNA damage, 10 as far as I know, but this is something from the 11 environment, something from the outside has reached 12 the pleura, has reached the mesothelial cell and 13 caused DNA damage. 14 Q. So in this case, if there was a fiber 15 coming in, this graph would be showing it through 16 the lens? 17 A. Sure. Instead of lightning, you would 18 have asbestos fibers. 19 Q. Okay. 20 A. You can put any carcinogen in there, 21 same concept. 22 And when you have DNA damage, I told you 23 that one of the things that should happen is that 24 the cells die, and the artist knows that, and he 14:51:33 14:51:36 14:51:39 14:51:42 14:51:44 14:51:47 14:51:50 14:51:53 14:51:55 14:51:58 14:51:59 14:52:02 14:52:06 14:52:10 14:52:13 14:52:16 14:52:16 14:52:19 14:52:24 14:52:27 14:52:29 14:52:31 14:52:37 14:52:39 14:52:42 14:52:45 14:52:50 14:52:52 14:52:57 14:53:01 14:53:01 14:53:02 14:53:06 14:53:09 14:53:11 14:53:13 14:53:16 14:53:18 14:53:22 14:53:26 14:53:29 14:53:33 14:53:35 14:53:39 14:53:41 14:53:43 14:53:48 14:53:52 AUGUST 26, 2009 195 1 has one of these cells -- one of the daughter cells 2 off into the upper left-hand corner to die, and you 3 can see the DNA is messed up and the surface of the 4 cell is bubbled up and there's a macrophage coming 5 in here to eat it up and this cell as going to die 6 and you'll never hear a thing about it. 7 But the artist also knows for a cancer 8 to develop, one of those daughter cells has to live 9 with that error so it can be passed on, so here's 10 the other daughter cell, and you can see the 11 chromosomes here, and then the artist has this 12 tumor. It's the tumor genesis or tumor formation. 13 He has this tumor with some oddly shaped 14 chromosomes and he's got all the cells out here 15 forming the cancer that brought this person to the 16 clinic. 17 Now, from the first daughter cell to the 18 time this tumor started to form is the latency 19 period. Now I'll take the last minute to explain 20 what's going on in that latency period. 21 So think about the single cell sitting 22 on a mesothelial surface now. It's got an error 23 and it looks and acts just like a normal 24 mesothelial cell, and those cells can sit for 196 1 months without doing anything except just acting 2 like a normal mesothelial cell, and it can sit 3 there and it can start to divide and it passes on 4 that genetic error two cells, four cells, eight 5 cells. Now you have eight cells with that one 6 genetic error sitting on the mesothelial surface 7 months later. 8 Well, three or four or five of them die. 9 I can't tell you how many, but they die because 10 they're picked up by the immune system or some of 11 those -- we have a whole set of these growth 12 control genes that can kill the cells, but you 13 still have two or three cells with an error, and 14 one of them gets hit by another asbestos fiber, and 15 it has a second error and so now it's sitting there 16 with the second error. It can sit there for months 17 and looking just like a normal mesothelial cell and 18 then months later it starts to divide again, two 19 cells, four cells, eight cells all with two errors. 20 And then some of those die and one -21 okay. Am I making the point? In other words, the 22 idea is that you keep generating new cells with 23 genetic errors that are accumulating additional 24 errors. That's the key. They have to accumulate TRANSCRIPT OF PROCEEDINGS 14:53:56 14:53:59 14:54:05 14:54:08 14:54:11 14:54:16 14:54:20 14:54:25 14:54:28 14:54:30 14:54:35 14:54:38 14:54:40 14:54:43 14:54:47 14:54:50 14:54:53 14:54:56 14:55:01 14:55:05 14:55:06 14:55:12 14:55:15 14:55:15 14:55:17 14:55:18 14:55:18 14:55:21 14:55:27 14:55:29 14:55:32 14:55:35 14:55:39 14:55:42 14:55:44 14:55:48 14:55:51 14:55:53 14:55:56 14:55:59 14:56:02 14:56:05 14:56:07 14:56:09 14:56:12 14:56:12 14:56:14 14:56:17 197 1 additional errors on the pleural surface, and then 2 eventually -- I don't know what the -- the latency 3 is in this case, but let's say 50 years later, you 4 have a series of cells on the mesothelial surface 5 with different combinations of genetic errors. 6 One of those gets that final error that 7 was sufficient for that person to grow out cancer, 8 and that's why the artist made this all the same 9 color, because the cancer that develops all came 10 from that one cell many decades later that had 11 accumulated sufficient errors for that person. 12 Q. Is there any way to isolate one of those 13 exposures that brought in asbestos that caused an 14 error and say that one is what caused it, or is it 15 the interplay of all the different exposure? 16 A. No, I don't think you can sort out 17 one -- I mean, it's not one exposure that caused 18 the disease; it's the series. It's like -- I mean, 19 the best analogy, if -- should I take my seat? 20 Q. Sure. I'm sorry. 21 A. Excuse me. 22 THE COURT: While you're doing that, how much 23 longer do you have? 24 MS. DEAN: It's my last question. 198 1 THE COURT: Continue. 2 BY THE WITNESS: 3 A. So the best analogy that I have for that 4 question is cigarette smoking, because 5 somebody before they get a lung cancer usually 6 starts smoking many decades before, and they -7 maybe they started smoking cartons of Camels and 8 then they went to Marlboros and then Lucky Strike, 9 whatever it was they smoked, and then they get the 10 cancer and you go back and ask the question: Which 11 pack of cigarettes -- which carton did it? Which 12 cigarette did it? You know, you can't do that. 13 It's the same idea. Every time you take 14 a breath of smoke, you introduce carcinogens to the 15 target cells in the airways. Every time someone's 16 exposed to asbestos, some proportion of those 17 fibers reach those target cells in the mesothelial 18 surface. Same concept. 19 MS. DEAN: I want to thank you very much for 20 your time. I think some lawyers may ask you some 21 questions. 22 THE COURT: Before we get to that, we'll have 23 cross-examination after our afternoon break. We'll 24 take about ten minutes. 14:56:17 15:10:03 15:10:03 15:10:08 15:10:08 15:10:10 15:10:12 15:10:13 15:10:15 15:10:18 15:10:20 15:10:22 15:10:24 15:10:25 15:10:25 15:10:25 15:10:27 15:10:28 15:10:30 15:10:32 15:10:33 15:10:36 15:10:39 15:10:41 AUGUST 26, 2009 199 1 (WHEREUPON, the trial was recessed 2 from 2:56 to 3:10 p.m.) 3 THE COURT: Welcome back, ladies and gentlemen 4 of thejury. 5 Mr. Fitzpatrick, cross-examination. 6 MR. FITZPATRICK: Thank you, your Honor. 7 THE COURT: Before you begin, ladies and 8 gentlemen, I want to try to keep you updated each 9 day. I don't think we'll be going past 4:30, 10 probably earlier than that you'll be released 11 today. I just wanted to let you know. 12 Okay. Excuse me. Go ahead. 13 MR. FITZPATRICK: Sure. 14 CROSS-EXAMINATION 15 BY MR. FITZPATRICK: 16 Q. Good afternoon, Dr. Brody. 17 A. Good afternoon. 18 Q. You and I have met many times in courts 19 across this country, haven't we? 20 A. At least ten. I'm not sure. 21 Q. If not more. In fact, just two months 22 ago, you and I chatted about the very same thing 23 you talked about in L.A., didn't we? 24 A. Sure. 15:10:41 15:10:45 15:10:45 15:10:45 15:10:47 15:10:47 15:10:52 15:10:53 15:10:55 15:10:58 15:10:59 15:11:01 15:11:04 15:11:06 15:11:09 15:11:09 15:11:11 15:11:14 15:11:16 15:11:16 15:11:18 15:11:21 15:11:22 15:11:23 200 1 Q. Do you have any more trials to get to 2 this week? 3 A. No. 4 Q. You have some next week? 5 A. No. 6 Q. You don't have the Levitch case or the 7 BIA case that you're testifying in? 8 A. Those are names that are not ringing a 9 bell. If someone drags me out there and can get me 10 to go out there, that will happen. 11 Q. My goal is to get you out in about 20 12 minutes or at least I should finish in 20. I'm 13 going to ask the same questions I've often asked, 14 so you know what's coming, fair? 15 A. I hope so. 16 Q. Okay. You indicated you're a professor 17 at North Carolina State, but my understanding is 18 you're not teaching medical students. 19 Is that fair? 20 A. That's right, not with this appointment. 21 Q. And you have not been teaching, then, 22 since at least you got there in 2006? 23 A. That's right. 24 Q. And as you sit here, you're not an MD, TRANSCRIPT OF PROCEEDINGS 15:11:26 15:11:30 15:11:32 15:11:33 15:11:35 15:11:35 15:11:37 15:11:37 15:11:39 15:11:44 15:11:44 15:11:44 15:11:47 15:11:50 15:11:53 15:11:53 15:11:55 15:11:58 15:12:00 15:12:02 15:12:03 15:12:04 15:12:07 15:12:11 15:12:15 15:12:15 15:12:15 15:12:20 15:12:22 15:12:23 15:12:24 15:12:29 15:12:35 15:12:38 15:12:40 15:12:42 15:12:43 15:12:45 15:12:46 15:12:49 15:12:53 15:12:55 15:12:58 15:12:59 15:13:03 15:13:05 15:13:06 15:13:09 201 1 so by definition you're not a pulmonary physician, 2 a nephrologist or an oncologist? 3 A. That's correct. 4 Q. You're not an industrial hygienist, is 5 that fair? 6 A. One of the many things I'm not, that's 7 correct. 8 Q. Okay. But you certainly travel around 9 the country and you testify in a lot of courtrooms, 10 fair? 11 A. Sure. 12 Q. You've been doing asbestos litigation 13 for about 20 years, fair? 14 A. Right. Not at the rate I'm doing now, 15 but sure. 16 Q. I understand. In fact, that was at 17 least -- you anticipated the question. 18 Not at the current rate; you started in 19 about 1990 with a couple of trials, and it's built 20 up, fair? 21 A. Right. 22 Q. All right. Your first trial was 1990, 23 as I said, and I think by 1992, you had told us you 24 had made about $20,000 from testifying in asbestos, 202 1 fair? 2 A. Right. 3 Q. It continued to increase so that by 4 1996, you were making about a hundred thousand 5 dollars a year testifying, fair? 6 A. Right. 7 Q. And I think when I examined you, I asked 8 you -- the year before in the Shahabi case in Los 9 Angeles, you had indicated that for the last seven 10 years, you had averaged $250,000 a year, fair? 11 A. In the last seven years from now? 12 Q. Yes. 13 A. It's between 200 and 250, yes. 14 Q. Okay. My question is: Do you recall 15 saying for the last seven years, you have averaged 16 about $250,000 a year just -17 A. Well, I may have said that, but the fact 18 is that I've made between 200, 250,000 over the 19 last seven years. 20 Q. And certainly 250,000 is about 60 21 percent of your income, correct? 22 A. Yes, yes. 23 Q. Now, I think at least as of two months 24 ago, you said that you averaged two to three trials 15:13:14 15:13:15 15:13:15 15:13:16 15:13:17 15:13:23 15:13:25 15:13:26 15:13:27 15:13:28 15:13:34 15:13:39 15:13:39 15:13:43 15:13:45 15:13:46 15:13:50 15:13:51 15:13:53 15:13:54 15:13:57 15:14:01 15:14:04 15:14:07 15:14:09 15:14:11 15:14:16 15:14:19 15:14:22 15:14:25 15:14:26 15:14:29 15:14:32 15:14:35 15:14:37 15:14:38 15:14:46 15:14:50 15:14:51 15:14:51 15:14:55 15:14:57 15:15:01 15:15:01 15:15:03 15:15:05 15:15:06 15:15:13 AUGUST 26, 2009 203 1 a month -2 A. Correct. 3 Q. -- that you testified? 4 A. That's right. 5 Q. And depositions can be anywhere from 6 giving two to four depositions a month -7 A. That can happen. 8 Q. -- fair? 9 A. That can happen, yes. 10 Q. So we have 30 to 36 trials a year, 24 to 11 48 depositions a year just in asbestos litigation, 12 fair? 13 A. Well, that's all I do is asbestos. 14 Q. I agree, that is indeed all you do -15 A. In litigation. 16 Q. -- is testify in asbestos litigation. 17 Is that what you just told me? 18 A. Of the litigation I do, it is only 19 related to asbestos, that's correct. 20 Q. And although you mentioned in response 21 to the plaintiff that you testify for defendants, 22 the few times you've testified for defendants are 23 when the defendants are contesting each other in 24 what is called coverage litigation, fair? 204 1 A. Yes. Interesting process, yes. 2 Q. It is, but for purposes of a personal 3 injury lawsuit brought on behalf of a plaintiff who 4 is claiming injury for exposure, 100 percent of 5 your time is for the plaintiffs, is that fair? 6 A. Yes. 7 Q. And if we then combine the few times the 8 defense has called you in a coverage dispute, that 9 brings us to about 98 percent of your entire 10 litigation career is for the plaintiff, fair? 11 A. That's fine. 12 Q. You've testified for many times for a 13 law firm called Waters & Krause out of Texas. 14 Is that true? 15 A. Yes. 16 Q. In fact, Ms. Dean was -- is with the 17 firm that actually worked with that firm and then 18 broke up, Simons Eddins & Greenstone, correct? 19 A. Correct. 20 Q. Anywhere from 20 to 40 times in trial 21 for those various firms, fair? 22 A. That's probably right. 23 Q. States, my last count when you were 24 going through the states on the various transcripts TRANSCRIPT OF PROCEEDINGS 15:15:16 15:15:18 15:15:19 15:15:20 15:15:22 15:15:23 15:15:27 15:15:32 15:15:35 15:15:35 15:15:37 15:15:40 15:15:42 15:15:44 15:15:46 15:15:47 15:15:49 15:15:52 15:15:54 15:15:56 15:15:58 15:15:58 15:16:02 15:16:05 15:16:07 15:16:08 15:16:10 15:16:14 15:16:16 15:16:17 15:16:18 15:16:22 15:16:25 15:16:26 15:16:29 15:16:31 15:16:33 15:16:37 15:16:39 15:16:42 15:16:44 15:16:46 15:16:50 15:16:53 15:16:53 15:16:55 15:16:55 15:16:57 205 1 is about 25 states where you've appeared for 2 plaintiffs. 3 Sound accurate? 4 A. If you're keeping that good a track of 5 me, that's fine. 6 Q. And when you come to talk, you give the 7 same speech, the same script on the rat studies and 8 you go through those same slides in every 9 courtroom, do you not? 10 A. Well, sure. I don't know why you call 11 it a script, though. When I lecture the medical 12 students and give them the information they need, I 13 don't think you'd call that a script, would you? 14 Q. My question -- it was not a difficult 15 question. 16 My question is: When you come into 17 trial, as you said, "Give me the pointer, I'll go 18 through the clicker," those are the slides you go 19 through all the time, fair? 20 A. Just like I do in medical school, 21 exactly. 22 Q. Indeed, we saw that slide and that 23 microscope that's about 20 years old, is it not? 24 A. You can tell by the gray in my hair 206 1 probably, right. 2 Q. And the motorcycle -- the kid on the 3 motorcycle where you've got the macrophage going to 4 get that pollen, you've been using that slide since 5 the '80s, fair? 6 A. Absolutely. 7 Q. You testify, for example, a lot for 8 Peter Angelos, a plaintiff's lawyer who happens to 9 own the Orioles, fair? 10 A. Once or twice year, yes. 11 Q. And, indeed, because of your 12 relationship with him, you've been a guest in his 13 private box at Orioles games, fair? 14 A. Great place to watch a ball game. I 15 wish the Cubs owner would use me. 16 Q. I'm sure you do. 17 In fact, the plaintiff lawyers like you 18 so much, when they want you, they'll actually fly 19 you out in a private plane to get you to places, 20 fair? 21 A. That has happened a couple of times, 22 yes. 23 Q. In fact, I think you said you wish it 24 would happen more, fair? 15:16:58 15:17:00 15:17:06 15:17:06 15:17:07 15:17:12 15:17:12 15:17:13 15:17:16 15:17:16 15:17:17 15:17:19 15:17:23 15:17:24 15:17:26 15:17:30 15:17:31 15:17:32 15:17:32 15:17:34 15:17:34 15:17:39 15:17:40 15:17:41 15:17:45 15:17:47 15:17:48 15:17:48 15:17:52 15:17:55 15:17:55 15:17:57 15:17:57 15:17:59 15:18:01 15:18:02 15:18:04 15:18:07 15:18:11 15:18:15 15:18:17 15:18:20 15:18:23 15:18:25 15:18:27 15:18:28 15:18:29 15:18:32 AUGUST 26, 2009 207 1 A. I do, yes, indeed. 2 Q. Now, you charge $475 an hour, do you 3 not? 4 A. Right. 5 Q. That's up from last year. It was 450 6 last year? 7 A. That's right. 8 Q. So did you fly in this morning or last 9 night? 10 A. This morning. 11 Q. So will you be charging an eight-hour 12 day for today? So we're talking about 3800 bucks, 13 right? 14 A. By the time I get home, yes. 15 Q. Now, I'm just curious. There are two 16 defendants in the case. 17 Do you know who I represent? 18 A. No. 19 Q. Do you know who they represent? 20 A. No. 21 Q. Have you read the deposition in this 22 case of any of the coworkers? 23 A. No. 24 Q. Have you read any of the medical 208 1 records, reviewed any of the medical records of 2 Mr. Mulcahy? 3 A. No. 4 Q. Have you looked at any corporate 5 documents of any of the defendants who might be 6 here? 7 A. That wouldn't have anything to do with 8 my testimony, so no. 9 Q. I'm sorry. The question is simple. 10 Did you look at any corporate documents 11 at all? 12 A. The answer is simple. No. 13 Q. So in other words, you come to all these 14 trials, you don't read the plaintiff's deposition, 15 if there's been one, you don't read the coworker 16 depositions, you don't look at the medical records, 17 you don't look at the corporate documents; you just 18 come and talk about the rat studies? 19 MS. DEAN: Objection, cumulative, compound. 20 THE COURT: Overruled. 21 BY THE WITNESS: 22 A. Right. Those documents don't have any 23 impact on my testimony, that's correct. 24 BY MR. FITZPATRICK: TRANSCRIPT OF PROCEEDINGS 15:18:32 15:18:35 15:18:39 15:18:41 15:18:44 15:18:46 15:18:50 15:18:51 15:18:51 15:18:54 15:18:56 15:18:58 15:19:01 15:19:02 15:19:03 15:19:05 15:19:08 15:19:10 15:19:13 15:19:17 15:19:19 15:19:23 15:19:24 15:19:27 15:19:28 15:19:30 15:19:30 15:19:34 15:19:38 15:19:42 15:19:45 15:19:45 15:19:47 15:19:53 15:19:54 15:19:55 15:19:59 15:20:02 15:20:05 15:20:10 15:20:15 15:20:17 15:20:18 15:20:20 15:20:24 15:20:28 15:20:29 15:20:30 209 1 Q. You testified that the rat studies 2 helped us learn a lot about asbestosis? 3 A. Well, about -- about a number of 4 different diseases, including asbestosis, sure. 5 Q. That was one of the purposes of those 6 studies, I think you've told me before, to 7 understand asbestosis? 8 A. Sure. 9 Q. Now, you understand Mr. Mulcahy did not 10 have asbestosis? Do you understand that? 11 A. Well, I was asked to -12 Q. I'm sorry. My question is: Do you 13 understand that he doesn't have asbestosis? 14 A. I understand he has mesothelioma. 15 Q. So when you're talking about lung 16 cancer, he doesn't have that, but the gentleman 17 here in this case has mesothelioma? 18 A. I thought I did talk about mesothelioma. 19 Q. And has the plaintiff shared with you 20 that the defendants in this case are not contesting 21 that mesothelioma was caused by asbestos? 22 A. That's good. 23 Q. My question is: Did they share that 24 with you before you testified? 210 1 A. That's immaterial to me. No, they did 2 not. 3 Q. Now, let's talk a little bit about fiber 4 potency that you discussed. 5 There are two families of -- generally 6 of asbestos fibers, serpentine and the amphibole, 7 is that correct? 8 A. As I explained, yes. 9 Q. And the amphiboles are the amosite and 10 chrysolite, is that correct? 11 A. That's right. 12 Q. And you are certainly familiar with 13 literature that's been published by very prominent 14 scientists that talk about the potency of being 15 anywhere from 300 to 500 times, amphiboles being 3 16 to 500 times more potent than chrysotile, correct? 17 A. Well, there's one paper that has those 18 numbers, yes. 19 Q. Well, my understanding is that last 20 year, you thought 300 times greater than chrysotile 21 was a pretty reasonable number for amosite, true or 22 false? 23 A. Well, that's fine. I'm -24 Q. I'm asking you. 15:20:32 15:20:35 15:20:39 15:20:40 15:20:42 15:20:43 15:20:46 15:20:47 15:20:48 15:20:53 15:20:53 15:20:57 15:20:58 15:20:59 15:21:01 15:21:04 15:21:06 15:21:08 15:21:11 15:21:13 15:21:14 15:21:16 15:21:18 15:21:18 15:21:20 15:21:25 15:21:28 15:21:29 15:21:31 15:21:33 15:21:34 15:21:35 15:21:40 15:21:40 15:21:42 15:21:45 15:21:46 15:21:48 15:21:51 15:21:51 15:21:53 15:21:54 15:21:56 15:22:01 15:22:07 15:22:10 15:22:12 15:22:13 AUGUST 26, 2009 211 1 My question to you is: In your medical 2 opinion, is amosite 300 times more potent to cause 3 mesothelioma than chrysotile? 4 A. Well, I don't know -5 MS. DEAN: Your Honor, could I just ask that 6 he allow the witness to finish and not interrupt in 7 the middle of a sentence? 8 THE COURT: I'm not sure that was happening, 9 but, Doctor, if you feel that you're cut off, you 10 can let counsel know. 11 BY MR. FITZPATRICK: 12 Q. Can you answer my question? 13 A. Indeed I can answer your question. 14 My answer is I don't know if it's 300 15 times because there's one paper that describes 16 those numbers. I think they might be reasonable 17 numbers. I don't have a problem with the number. 18 It's just that that's not my number, so I'm not 19 going to tell the jury that it's 300 times more 20 potent because I don't know that. 21 Q. Well, let's see. 22 MR. FITZPATRICK: May I approach, your Honor? 23 BY MR. FITZPATRICK: 24 Q. Do you remember testifying just two 212 1 months ago in the Pelletier case in Los Angeles, 2 June 24, where I was cross-examining you? 3 A. Well, I -4 Q. My first question is: Do you remember? 5 A. Yes. 6 MR. FITZPATRICK: May I approach? 7 BY MR. FITZPATRICK: 8 Q. And my question to you is: Do you 9 recall here -10 MS. DEAN: Before the witness is shown 11 anything, I would just ask for a courtesy copy so I 12 know what's going on. 13 THE COURT: Is this just to refresh memory? 14 MR. FITZPATRICK: We're going to start with 15 that. 16 THE COURT: Reference the page number. It's a 17 trial transcript? 18 MR. FITZPATRICK: Sure, it's a trial 19 transcript, Page 59 from the Pelletier case, June 20 24, 2009, Lines 19 through 27. 21 MS. DEAN: And we weren't provided copies. 22 MR. FITZPATRICK: Judge, I don't have -23 THE COURT: The objection is overruled. 24 Go ahead. TRANSCRIPT OF PROCEEDINGS 15:22:15 15:22:15 15:22:18 15:22:20 15:22:23 15:22:25 15:22:29 15:22:30 15:22:34 15:22:35 15:22:37 15:22:38 15:22:40 15:22:43 15:22:44 15:22:48 15:22:49 15:22:50 15:22:51 15:22:52 15:22:54 15:22:54 15:22:55 15:22:57 15:22:59 15:23:03 15:23:08 15:23:12 15:23:17 15:23:21 15:23:23 15:23:24 15:23:30 15:23:39 15:23:45 15:23:48 15:23:51 15:23:55 15:23:59 15:24:02 15:24:04 15:24:05 15:24:08 15:24:08 15:24:09 15:24:11 15:24:13 15:24:14 213 1 BY MR. FITZPATRICK: 2 Q. Do you recall the various questions: 3 "Q. You're familiar with the literature 4 that's been published by prominent scientists 5 talking about the potency being anywhere from 6 300 to 500 times greater than chrysotile, 7 fair? 8 "A. 3 times to 500 times, sure. Depends 9 on who you're reading. 10 "Q. My understanding is --" Doctor, 11 hello. 12 "Q. My understanding is that last year 13 you thought 300 was a pretty reasonable 14 number. 15 "A. Well, that's for amosite, sure." 16 Do you recall saying that? 17 A. Yeah, and I just said the same thing. 18 That's fine. 19 Q. So we can agree -20 A. I'm not arguing with you about the 21 number. 22 Q. So we can agree -23 A. Why are you reading that to me? I 24 can -- you know, that's what I said. 214 1 Q. Okay. So for amosite -- in other words, 2 to put this in context, if we have an amosite fiber 3 and a chrysotile fiber, to hit that little cell 4 that you do, it would take 300 chrysotile fibers to 5 do basically what one amosite fiber can do? That's 6 what 300 times potency means, fair? 7 A. Correct. 8 Q. Okay. And so, therefore, if you said 9 there were 301 fibers, if I just went -- you've got 10 301 -- 300 over 301 would be like 99.99 percent 11 which one may have hit that cell, but on top of 12 that, we have potency of 300 times greater, so the 13 chance of that chrysotile ever causing that disease 14 is about like slim to none if I do the fiber 15 potency and the amount of fibers, fair? 16 A. If that's -17 MS. DEAN: Your Honor, I'm just going to 18 object to vague and compound. 19 THE COURT: Overruled. 20 BY THE WITNESS: 21 A. You know, if that's what the exposure 22 actually is, sure. 23 BY MR. FITZPATRICK: 24 Q. Okay. Now -- and you mentioned to the 15:24:19 15:24:22 15:24:26 15:24:26 15:24:27 15:24:31 15:24:34 15:24:40 15:24:41 15:24:44 15:24:47 15:24:50 15:24:51 15:24:53 15:24:56 15:24:57 15:24:59 15:25:03 15:25:07 15:25:07 15:25:11 15:25:14 15:25:17 15:25:20 15:25:23 15:25:25 15:25:29 15:25:32 15:25:34 15:25:36 15:25:39 15:25:42 15:25:30 15:25:43 15:25:47 15:25:50 15:25:52 15:25:54 15:25:57 15:26:01 15:26:02 15:26:05 15:26:09 15:26:12 15:26:16 15:26:19 15:26:24 15:26:27 AUGUST 26, 2009 215 1 jury -- okay. So we've talked about fiber potency. 2 You mentioned Chris Wagner, did you not, 3 on direct? 4 A. That's correct. 5 Q. The gentleman from South Africa who I 6 wrote down he actually discovered the association 7 of mesothelioma with crocidolite asbestos in 1960? 8 A. Right. 9 Q. And I think you've said repeatedly that 10 even that wasn't conclusive because he didn't find 11 any amosite exposures; that was limited to that 12 blue asbestos, correct? 13 A. I didn't say anything about amosite. 14 I'm just saying the workers he was studying were 15 exposed to crocidolite. 16 Q. And, indeed, over the years, you had 17 kept in contact with him and he published many 18 articles on asbestos causing mesothelioma, correct? 19 A. Right. 20 Q. And, actually, over the years, as you've 21 read, his opinion is the vast majority of 22 mesotheliomas are indeed caused by crocidolite or 23 amosite as opposed to chrysotile, fair? 24 A. Well, not -- not really. I mean, he 216 1 actually years later came to the opinion that it 2 was only crocidolite. I mean, that -- I don't know 3 where he got that, but he sort of went out on a 4 limb on that one, I think. 5 So he formed what he called, excuse me, 6 the crocidolite hypothesis where he said that only 7 crocidolite caused the disease, but, you know, I 8 don't know where that comes from. 9 Q. I'm sorry. The gentleman who you 10 attribute with making the discovery of asbestos in 11 mesothelioma, when you disagree with him, you say 12 he went out on a limb? 13 A. Well, now, that is not at all fair 14 because Dr. Wagner made some very important 15 contributions, and I think he was right on in a 16 number of subjects. 17 But he's the only scientist that I know 18 who says that crocidolite is the only asbestos that 19 causes mesothelioma. Now, if that's not out on a 20 limb, you will have to explain what is. 21 Q. When we talk about exposure levels, you 22 have indicated before, obviously for asbestosis, 23 you need significant and long exposures, fair? 24 A. Right. TRANSCRIPT OF PROCEEDINGS 15:26:28 15:26:30 15:26:34 15:26:35 15:26:36 15:26:39 15:26:42 15:26:49 15:26:52 15:26:54 15:26:57 15:27:01 15:27:02 15:27:02 15:27:06 15:27:07 15:27:07 15:27:10 15:27:13 15:27:16 15:27:18 15:27:21 15:27:25 15:27:26 15:27:30 15:27:35 15:27:36 15:27:38 15:27:41 15:27:43 15:27:44 15:27:46 15:27:46 15:27:55 15:27:55 15:27:56 15:27:58 15:28:02 15:28:02 15:28:09 15:28:12 15:28:13 15:28:15 15:28:22 15:28:22 15:28:23 15:28:25 15:28:28 217 1 Q. Obviously, for mesothelioma those 2 exposures can be at much lower levels and yet still 3 cause the disease, fair? 4 A. Right. 5 Q. I believe you have indicated before, 6 have you not, that exposure -- let's see, the rats. 7 The rats that you dosed was 1,000 to 8 5,000 fibers per cc; is that correct? 9 A. For a short time, correct. 10 Q. And that was, again, 1,000 to 5,000 11 fibers per cc is what is a concentration that you 12 dosed the rats at? 13 A. That's right. 14 Q. That was a very dusty, dusty 15 environment, fair? 16 A. Right. 17 Q. And what you were trying to do with this 18 heavy dose was trying to induce disease? 19 A. It's not a heavy dose. It's a heavy 20 concentration. It's actually a small dose because 21 it's for a short time, but yes. The answer to your 22 question is, yes, we were starting the disease 23 development. 24 Q. All right. Now, you talked a little bit 218 1 about thresholds. There is a threshold today and 2 safe levels. Do you recall that? 3 A. There is no safe level, is what I say. 4 Q. I understand. All right. So you and I 5 have done this before. We start with what you 6 dosed. 7 You are aware, certainly, that there 8 were TLVs, threshold limit values, of asbestos in 9 the '40s, '50s, and '60s of 5 million particles; is 10 that correct? 11 A. That is what I understand. 12 Q. And if I make a conversion because you 13 were dosing the rats at fibers per cc, 14 approximately 1 million particles equals 6 fibers, 15 so the TLV of 5 million particles is generally 16 equivalent to 30 fibers per cc; is that correct? 17 A. Right. 18 Q. All right. There is an existing TLV 19 today fro asbestos for 0.1 fiber per CC; is that 20 fair? 21 A. Right. 22 Q. And, therefore, again, to put it in 23 context, the levels of the rats, certainly anywhere 24 from 30 to 166 times higher than the TLV. And, 15:28:34 15:28:38 15:28:43 15:28:45 15:28:46 15:28:50 15:28:53 15:28:55 15:28:56 15:29:00 15:29:01 15:29:18 15:29:20 15:29:22 15:29:23 15:29:27 15:29:28 15:29:31 15:29:31 15:29:33 15:29:34 15:29:38 15:29:41 15:29:44 15:29:47 15:29:50 15:29:53 15:29:56 15:29:58 15:30:01 15:30:04 15:30:07 15:30:08 15:30:08 15:30:11 15:30:14 15:30:17 15:30:18 15:30:19 15:30:22 15:30:25 15:30:28 15:30:31 15:30:34 15:30:39 15:30:42 15:30:44 15:30:48 AUGUST 26, 2009 219 1 indeed, if we looked at the existing TLV, we are 2 talking about 10,000 to 50,000 times higher than 3 the existing TLV today? 4 A. Yeah. And the point? I mean, that is 5 not a useful comparison certainly because TLVs are 6 to protect people, while what I'm trying to do is 7 induce a disease. 8 Q. Did I ask about protecting? My question 9 was, first of all, are those numbers accurate? 10 A. As far as I can tell. 11 Q. Okay. Now, you sacrificed -- when you 12 say that you injected them with anesthesia, you 13 killed the rats, right? 14 A. Right. 15 Q. And you sacrificed them hours, days, or 16 weeks, do you not, over time? 17 A. We have gone out to a year. Yes, that's 18 right. 19 Q. And gone out to a year. 20 And is it true that in the amounts that 21 you dosed the rats, that there -- you never found 22 any evidence of cancer in your rats? 23 A. Well, we have induced lung cancer, but 24 not mesothelioma, and I told you that we did not do 220 1 that. See, you don't have the hour time up there. 2 That is why you can't say dose. When you said, 3 Dose the animals, I'm trying to explain, that is 4 not a dose. That is a concentration. 5 Even at the 10,000 to 50,000 times 6 higher, when you only expose them for an hour, you 7 are producing a small dose, and we would not expect 8 a mesothelioma to develop and we didn't get 9 mesothelioma. 10 Q. Even up to a year you did not get 11 mesothelioma? Doctor, yes or no. Did you get a 12 mesothelioma in your rats? 13 A. No. 14 Q. Thank you. 15 A. At one hour a day for eight weeks, we 16 did not. That was the year's regimen. 17 Q. Doctor, is it also true then, if we 18 convert this -- and your opinions that you have 19 expressed many times in courts is that if a human 20 was exposed to 1,000 to 5,000 fibers per cc over a 21 course of one to three hours, if that were his 22 dose, that in your opinion that would not be 23 sufficient to cause mesothelioma in a human being, 24 true? TRANSCRIPT OF PROCEEDINGS 15:30:48 15:30:49 15:30:52 15:30:55 15:31:00 15:31:04 15:31:05 15:31:08 15:31:11 15:31:13 15:31:19 15:31:24 15:31:26 15:31:27 15:31:32 15:31:35 15:31:37 15:31:37 15:31:41 15:31:42 15:31:45 15:31:46 15:31:46 15:31:49 15:31:52 15:31:55 15:31:55 15:31:58 15:31:59 15:32:02 15:32:03 15:32:04 15:32:15 15:32:19 15:32:22 15:32:25 15:32:28 15:32:29 15:32:32 15:32:36 15:32:39 15:32:43 15:32:43 15:32:50 15:32:51 15:32:55 15:32:58 15:32:58 221 1 A. I think that's fair, yeah. 2 Q. And indeed you go beyond that. If 3 someone were exposed for three days at this level, 4 of 1,000 to 5,000 fibers per cc, in your opinion, 5 that would not be enough to develop a mesothelioma, 6 true? 7 A. I think that's right. Every time you 8 add a day, it makes it more difficult to say it 9 won't do it, but, you know, it's still a low dose. 10 Q. Okay. Now, obviously, you mentioned 11 genetics, so there is still truly individual 12 susceptibility for all of this; is that correct? 13 A. Certainly. 14 Q. And, again, my understanding is today we 15 have about 3,000 mesotheliomas currently diagnosed 16 per year; is that your understanding? 17 A. Yes. 18 Q. I mean, there may be some out or 19 whatever there are reporter, but generally those 20 are numbers of people of what they are finding out 21 for mesothelioma? 22 A. Correct. 23 Q. Now, to put that in context, 3,000 24 mesotheliomas compared to lung cancer. That is 222 1 about 180,000 lung cancers a year? 2 A. That's right. 3 Q. About 200,000 breast cancers a year? 4 A. Yeah. 5 Q. So quite a rare form of cancer in this 6 country? 7 A. Always has been. 8 Q. Now, you would also agree, I believe, 9 that that number of mesotheliomas has been almost 10 constant over about the last 10 or 15 years? It 11 has been about 3,000, give or take something for 12 almost the last 10 or 15 years, fair? 13 A. That's my point, yeah. 14 Q. And the question for you is, in your 15 reviews, since you have studied asbestos, you are 16 aware, obviously, that in the '40s and '50s 17 dramatic uses of asbestos. Once OSHA came out, it 18 started tailing of. The goal was, obviously, we 19 would see a decrease with lesser use, more hygiene 20 industrial practices in place. 21 Yet despite lower users, we are still 22 seeing this same number of cancers; is that fair? 23 A. Right. 24 Q. And that is because of this genetic 15:33:00 15:33:02 15:33:03 15:33:03 15:33:14 15:33:17 15:33:20 15:33:24 15:33:24 15:33:25 15:33:26 15:33:40 15:33:44 15:33:49 15:33:49 15:33:52 15:33:53 15:33:56 15:33:57 15:33:58 15:34:01 15:34:06 15:34:09 15:34:15 15:34:15 15:34:18 15:34:18 15:34:19 15:34:23 15:34:23 15:34:26 15:34:29 15:34:31 15:34:34 15:34:37 15:34:38 15:34:41 15:34:43 15:34:44 15:34:47 15:34:49 15:34:52 15:34:54 15:34:56 15:34:57 15:35:03 15:35:07 15:35:10 AUGUST 26, 2009 223 1 issue that I think you were talking about to this 2 jury? 3 A. I agree. 4 Q. And I think that is one of the things 5 that confounded scientists, that this number does 6 not get less, so you are actually trying to, I 7 think, identify the genes to see what can be done, 8 if anything? 9 A. Yeah, me and a number of other 10 investigators. Sure. 11 Q. All right. Now, a person breaths 12 about -- you and I have done this before. Breaths 13 about 10,000 liters of air a day, does he not? 14 A. Right. 15 Q. And there is about 1,000 ccs in a liter? 16 A. Correct. 17 Q. So that gives us about 10 million ccs of 18 air every day? 19 A. Yes. 20 Q. Now, lung tissue. In our own lung 21 tissue that you, I think, talked to the plaintiffs, 22 we may -- an average person may have as high as 23 1 million asbestos fibers per gram of wet lung, 24 fair? 224 1 A. That is on the high side, but that can 2 happen, yes. 3 Q. And there is no risk of mesothelioma 4 from those fibers that we have in our lung, in your 5 opinion; is that correct? 6 A. Yeah, there is no evidence of risk, but 7 a couple things. First of all, it's not the 8 average person. I would say that is high. 9 And 1 million fibers is not a lot. I 10 mean, you can get a billion fibers into a thimble, 11 but your point is fine. 12 Q. Indeed, in the lungs we have millions of 13 grams of lung tissue, do we not? 14 A. Right. 15 Q. So, therefore, in our lung if this the 16 high average, we are going to take the high average 17 person, we are talking about billions of asbestos 18 fibers that they have in their lung for which they 19 are not at risk, fair? 20 A. I agree. 21 Q. Okay. So then by definition, whether 22 you get that from background, somehow those fibers 23 either did not get into the lymphatics, did not 24 migrate, somehow they did not cause a mesothelioma, TRANSCRIPT OF PROCEEDINGS 15:35:14 15:35:15 15:35:15 15:35:18 15:35:21 15:35:21 15:35:25 15:35:25 15:35:26 15:35:27 15:35:28 15:35:39 15:35:43 15:35:47 15:35:51 15:35:54 15:36:00 15:36:03 15:36:06 15:36:10 15:36:12 15:36:14 15:36:16 15:36:17 15:36:20 15:36:25 15:36:26 15:36:26 15:36:29 15:36:32 15:36:35 15:36:38 15:36:42 15:36:46 15:36:49 15:36:52 15:36:52 15:36:56 15:36:57 15:36:57 15:36:59 15:37:02 15:37:05 15:37:08 15:37:10 15:37:13 15:37:15 15:37:19 225 1 fair? 2 A. True. 3 Q. We have asbestos mines in this country 4 out in California. There are California 5 outcroppings of rock that are chrysotile rock, 6 fair? 7 A. Yes. 8 Q. And do you know what the state rock of 9 California is? 10 A. Serpentine. 11 Q. But even though there is no way for you 12 to say that background can cause it, at the same 13 time you can't rule out a background exposure and 14 an occupational exposure as to which fiber actually 15 caused that cell to mutate, fair? 16 A. Well, if there is a mutation, whatever 17 fibers got into that person could have caused it, 18 sure. The issue is which ones are more likely to 19 cause it. The background is billions, and I'm 20 telling you that is not a whole lot of fibers. 21 If a person is exposed occupationally on 22 a regular basis, they are going to get more than 23 background. 24 Q. To put that in context, the current 226 1 existing TLV set by OSHA today is 0.1 fibers per 2 cc, correct? 3 A. Correct. 4 Q. That is a level that is considered to be 5 safe in a workplace today, is it not? 6 A. Well, you know, you need to ask an 7 industrial hygienist, which you have established 8 I'm not, but that is a level that can be obtained 9 in a workplace. It does not necessarily mean it's 10 safe. It does not say that it's safe. It says 11 that it's designed to protect as many people as 12 possible. 13 Q. Okay. Now, it's designed to protect as 14 many people as possible -15 A. Yeah. 16 Q. -- but yet it's not safe? 17 What it means is that all of medical 18 science has determined that you can breath 0.1 19 fiber per cc for an eight-hour day for a working 20 week, over a working lifetime, and that is 21 considered to be relatively safe? 22 A. Oh, now it's relatively safe. 23 Q. I'm asking -- I'll put your qualifier. 24 Is it relatively safe? 15:37:20 15:37:23 15:37:25 15:37:29 15:37:29 15:37:31 15:37:37 15:37:40 15:37:43 15:37:45 15:37:47 15:37:50 15:37:52 15:37:56 15:37:58 15:38:01 15:38:03 15:38:08 15:38:13 15:38:15 15:38:16 15:38:20 15:38:25 15:38:25 AUGUST 26, 2009 227 1 A. I'm not an industrial hygienist. I 2 don't know what has been established as safe. I 3 have never heard of a safe level anywhere other 4 than background. 5 Q. I assume that you are not suggesting 6 that OSHA or NIOSH or any of our -- are 7 establishing levels that they thing are dangerous? 8 They are not saying, You can go be exposed to 0.1, 9 which a medical scientist has said is acceptable, 10 but we don't think that is safe? 11 A. Look. You are talking OSHA with me now. 12 We have never done this before. OSHA, the 13 Occupational Safety and Health Administration, sets 14 levels that they can achieve in a workplace that 15 will protect as many people as possible. I have 16 never heard it as safe. 17 Q. If we are worried about. I think you 18 said exposures to carcinogens can cause damage to a 19 cell. That is what we worry about, correct? 20 A. Right. 21 Q. Do you know one cell can be damaged and 22 that is what caused this cascade of events; is that 23 correct? 24 A. Well, you have to have a series of 15:38:27 15:38:32 15:38:36 15:38:39 15:38:39 15:38:39 15:38:40 15:38:43 15:38:45 15:38:46 15:38:49 15:38:49 15:38:50 15:38:53 15:38:57 15:39:01 15:39:04 15:39:07 15:39:09 15:39:12 15:39:13 15:39:16 15:39:18 15:39:18 228 1 genetic errors that accumulate over time. It's not 2 just one cell. It's the progeny of those cells. 3 Q. Do you fill up your car with gas? 4 A. Do I? 5 Q. Yes. 6 A. Of course. 7 Q. Is there something in gas that is known 8 to cause liver cancer, called benzene? 9 A. Benzene, sure. 10 Q. You smell benzene every time you fill up 11 your car? 12 A. Right. 13 Q. So you are getting some dose of benzene, 14 even though a carcinogenic case agent, as you say 15 there is no known safe level, we smell it every 16 time we fill up our car, fair? 17 A. Yeah, right. I don't know if there is a 18 safe level for benzene. If you ask me if the 19 levels that you smell when you fill up your car are 20 safe or not, I just don't know that. 21 Q. There is arsenic in various products, 22 and you would agree certainly arsenic in heavy 23 doses is not good? 24 A. Oh, I certainly agree. And I walk out TRANSCRIPT OF PROCEEDINGS 15:39:20 15:39:24 15:39:26 15:39:28 15:39:32 15:39:33 15:39:33 15:39:36 15:39:37 15:39:38 15:39:41 15:39:45 15:39:49 15:39:50 15:40:01 15:40:04 15:40:09 15:40:12 15:40:15 15:40:16 15:40:17 15:40:19 15:40:22 15:40:22 15:40:38 15:40:38 15:40:38 15:40:43 15:40:43 15:40:43 15:40:49 15:40:53 15:40:56 15:40:57 15:40:59 15:41:03 15:41:05 15:41:06 15:41:07 15:41:10 15:41:13 15:41:14 15:41:15 15:41:17 15:41:21 15:41:25 15:41:26 15:41:27 229 1 in the sunshine and play tennis, and I get a lot of 2 sun. That is clearly a carcinogen. 3 Q. But there is a dose -- there are foods 4 that actually have traces of arsenic which we can 5 eat and causes no problems? 6 A. Of course. 7 Q. That is what we call the dose/response 8 relationship, right? 9 A. Absolutely. 10 Q. Whether it's aspirin or whether I use 11 arsenic, there are levels which are considered safe 12 versus levels which would not be, fair? 13 A. I agree. Sure. 14 Q. Now, the target cell for cancer. 15 Obviously, I believe it's your opinion that the 16 fibers don't get down to that target cell. They 17 are cleared, whether it's the mucociliary tree, 18 obviously, those are not causing it, by definition? 19 A. That's right. 20 Q. Because about 90 percent of what we 21 breath in either gets spilled out the mucociliary 22 tree, so that does not cause it? 23 A. I agree. 24 Q. Okay. And the macrophages, once they 230 1 get in, they macrophages engulf those fibers, 2 certain fibers, and, again, those would not be 3 causative, would they? 4 A. No. Macrophages pick up fibers in a lot 5 of different places, including out in the pleural 6 cavity, after the fibers have already interacted, 7 but, yeah, if a macrophage picks up a fiber in the 8 alveolar space and gets it out on the escalator, 9 sure, I agree. 10 Q. And if the fibers get in the lungs but 11 they don't migrate to the pleura, they may get 12 eliminated. Obviously, those don't cause the 13 cancer, fair? 14 A. I agree. 15 Q. And we have billions of macrophages that 16 are trying to encompass or encase those fibers, 17 fair? 18 A. Absolutely. 19 Q. Now, the fibers that remain in the lung, 20 if they don't migrate to the pleura, if they don't 21 get out to the pleura and get that, they don't 22 cause the cancer, do they? 23 A. I agree. 24 Q. And the fibers that actually made it or 15:41:31 15:41:34 15:41:38 15:41:40 15:41:41 15:41:44 15:41:48 15:41:48 15:41:48 15:41:54 15:41:57 15:41:58 15:42:02 15:42:02 15:42:04 15:42:07 15:42:11 15:42:13 15:42:16 15:42:17 15:42:19 15:42:24 15:42:28 15:42:31 15:42:31 15:42:32 15:42:36 15:42:39 15:42:42 15:42:45 15:42:45 15:42:46 15:42:47 15:42:49 15:42:53 15:42:55 15:42:58 15:43:02 15:43:05 15:43:10 15:43:12 15:43:14 15:43:14 15:43:17 15:43:18 15:43:22 15:43:23 15:43:25 AUGUST 26, 2009 231 1 migrated to the pleura, if they don't get to the 2 target cell that started it, they didn't cause the 3 cancer, fair? 4 A. I agree. 5 Q. And some fibers have a capacity, more so 6 than others, to dissolve or what we call leach out; 7 is that correct? 8 A. Right. 9 Q. The serpentine or chrysotile fibers have 10 a tendency to leach out or dissolve in, what, 11 three years, less than three years? 12 A. Well, it depends. I mean, some never 13 dissolve, while some can disappear very quickly. 14 It depends on a their size and thickness. 15 Q. And there are other fibers, such as 16 amosite and crocidolite that have a tendency never 17 dissolve? They stay longer. That is one of the 18 reason they are more causative or have a greater 19 fiber potency, fair? 20 A. I agree. 21 Q. Now, in addition to potency, you are 22 familiar, having reviewed the literature, of what 23 is called short fibers versus long fibers, correct, 24 sir? 232 1 A. Sure. 2 Q. And there are some very prominent 3 scientists, Vic Roggli, someone you know, who 4 actually believes that unless fibers are greater 5 than 5 microns, the short fibers are not causative, 6 fair? 7 A. There are some people that say that, 8 yes. 9 Q. Actually, Vic Roggli, who was a 10 prominent pathology professor at Duke, a colleague 11 and someone you know very well? 12 A. Sure. I agree with Victor on 13 99.9 percent of whatever he has to say, but I don't 14 know how he gets, Well, if you have 5 microns you 15 don't cause disease, but if you are 5.2 microns, 16 you do. That biology does not make sense when you 17 talk like that, so I disagree with Dr. Roggli on 18 that. 19 Q. So you disagree with Wagner -- you agree 20 with him that 99 percent, except when he's out 21 there in left field, and Vic Roggli, you agree with 22 all the other stuff he writes, except when he has 23 an opinion that you don't support in a courtroom? 24 A. Well, that is completely unfair. I TRANSCRIPT OF PROCEEDINGS 15:43:28 15:43:30 15:43:34 15:43:37 15:43:40 15:43:41 15:43:47 15:43:49 15:43:49 15:43:51 15:43:55 15:43:56 15:43:56 15:43:59 15:44:02 15:44:03 15:44:05 15:44:07 15:44:11 15:44:12 15:44:15 15:44:24 15:44:27 15:44:31 15:44:35 15:44:39 15:44:43 15:44:46 15:44:49 15:44:51 15:44:56 15:44:58 15:45:01 15:45:04 15:45:06 15:45:08 15:45:12 15:45:15 15:45:16 15:45:19 15:45:21 15:45:24 15:45:25 15:45:27 15:45:35 15:45:38 15:45:41 15:45:44 233 1 don't know why you say that. Look, Dr. Roggli and 2 I have written together time after time. We are 3 colleagues. Why can't I tell you and the jury that 4 I don't agree with that point, and you tell me it's 5 because of litigation? 6 I find that -- actually, it makes me 7 uncomfortable when you say something as silly as 8 that. 9 Q. Well, let's se. He's on the Canadian 10 American Mesothelioma Panel, isn't he? This is not 11 a tough question. Just answer this one. Is he on 12 the panel? 13 A. Of course. He's a fantastic guy. He's 14 one of the smartest guys I know. 15 Q. In fact, someone you have actually 16 published as a coauthor with, have you not? 17 A. I just said that to the jury. 18 Q. But, again, his opinion is short fibers 19 don't cause mesothelioma? 20 A. And I told you why I disagree with that. 21 Q. All right. Now, in your testimony that 22 every exposure contributes -- and I have asked you 23 this over the years -- is it true that you cannot 24 cite one article in the world's medical literature 234 1 that states that every exposure to asbestos 2 contributes to a person's mesothelioma? 3 A. True. That is true. Nor would I expect 4 to be able to find that because that just would not 5 be something that somebody would write. You know, 6 it's like if somebody smokes cigarettes again or is 7 exposed to asbestos over the decades. You say, 8 Well, which one of those cigarettes did it? Which 9 exposure did it? You can't do that. You can't 10 sort it out. 11 Therefore, the medical literature 12 says -- the medical literature says that what you 13 are exposed to causes the disease. It doesn't say, 14 This did it, that did it, we can sort these things 15 out. That is not what the medical literature says. 16 Q. There is no oncology textbook, pulmonary 17 pathology that says every exposure contributes to 18 the disease, true? 19 A. Not in those words, that's correct. 20 Q. And the reason why is because no medical 21 physician would come and say such a thing because 22 they would not even publish such an opinion, fair? 23 A. I can't tell you what someone would say, 24 but the -- 15:45:44 15:45:47 15:45:51 15:45:54 15:45:58 15:46:01 15:46:03 15:46:05 15:46:09 15:46:09 15:46:12 15:46:12 15:46:14 15:46:16 15:46:21 15:46:25 15:46:27 15:46:30 15:46:31 15:46:32 15:46:33 15:46:33 15:46:36 15:46:36 15:46:57 15:46:58 15:46:59 15:47:01 15:47:04 15:47:05 15:47:07 15:47:09 15:47:11 15:47:14 15:47:17 15:47:19 15:47:19 15:47:20 15:47:22 15:47:22 15:47:23 15:47:25 15:47:25 15:47:28 15:47:29 15:47:31 15:47:34 15:47:35 AUGUST 26, 2009 235 1 Q. Then I'll rephrase it. Let me do it 2 this way. You, however, come and tell the jury, 3 since you can't tell what fiber got to the pleura, 4 what fiber potency did, what length of fiber, what 5 dissolved, you say they all do it because that is 6 what we call the litigation lottery? And you get 7 to blame everybody? 8 MS. DEAN: Objection, argumentative, and 9 objection, compound. 10 THE COURT: Sustained. 11 BY MR. FITZPATRICK: 12 Q. Doctor, one last question. 13 Do you know of any expert in the country 14 that testifies 36 times or more a year and comes to 15 a trial without having read anything about the case 16 in question? 17 A. I don't know if anybody else does that. 18 You'll have to ask. 19 Q. Thank you very much. 20 A. You are welcome. 21 THE COURT: Mr. King. 22 CROSS-EXAMINATION 23 BY MR. KING: 24 Q. Thank you, your Honor. Good afternoon, 236 1 Dr. Brody. 2 A. Good afternoon. 3 Q. My name is Jeff King. I have a few 4 question. Hopefully, I won't overlap. I will try 5 my best to avoid any question that has already been 6 asked. I am going to have to pause once a while to 7 read through some questions and hopefully skip 8 right over them. 9 You understand that there are experts 10 who know about the dangers that are posed by 11 asbestos in the workplace and are called industrial 12 hygienists? 13 A. Right. 14 Q. And you are not an industrial hygienist, 15 correct? 16 A. I'm still not. That's right. 17 Q. And never have been, right? 18 A. Right. 19 Q. You would agree that if I wanted to find 20 out about the dangers posed by a particular 21 asbestos containing product in a workplace, I 22 should ask a certified industrial hygienist, 23 correct? 24 A. Please do. TRANSCRIPT OF PROCEEDINGS 15:47:35 15:47:38 15:47:40 15:47:40 15:47:41 15:47:43 15:47:46 15:47:50 15:47:53 15:47:53 15:47:54 15:47:56 15:48:00 15:48:02 15:48:03 15:48:06 15:48:09 15:48:11 15:48:12 15:48:15 15:48:18 15:48:18 15:48:20 15:48:22 15:48:22 15:48:24 15:48:25 15:48:25 15:48:29 15:48:30 15:48:32 15:48:34 15:48:35 15:48:37 15:48:40 15:48:41 15:48:43 15:48:45 15:48:48 15:48:53 15:48:57 15:49:00 15:49:03 15:49:03 15:49:05 15:49:08 15:49:10 15:49:11 237 1 Q. You never done any research on 2 particular asbestos-containing product types, have 3 you? 4 A. Correct. 5 Q. Generally speaking, you have not studied 6 and are not aware of the levels of fiber that are 7 released during different asbestos-containing 8 products being worked in different working 9 conditions, correct? 10 A. Correct. 11 Q. Generally, as a general proposition, you 12 would agree that assessing the nature of a specific 13 asbestos exposure in the workplace is just not your 14 area, right? 15 A. It's still not. I agree. 16 Q. You have not done any occupational 17 studies on the human population involving asbestos 18 exposure, correct? 19 A. Well, not epidemiology. I mean, I have 20 studied human tissues for decades, but not 21 populations, right. 22 Q. Right. But epidemiology implies 23 population studies, correct? 24 A. Yes. 238 1 Q. And you have not done any population 2 studies? 3 A. Correct. 4 Q. So your studies have been predominantly 5 on the animal side, correct? 6 A. Using animals to understand human 7 disease, that's correct. 8 Q. You have testified, as we have heard, in 9 many, many cases. Do you know how many of those 10 pertained to plaintiffs that were exposed in the 11 Navy alone? 12 A. No idea. 13 Q. Would you be of the opinion, sitting 14 here today, that if someone had mesothelioma and 15 worked on a ship, Navy ship, from 1948 to 1952 in 16 the machinery spaces, where there was amosite 17 insulation and that person contracted mesothelioma, 18 that it was those four years that cased the 19 disease? 20 A. If that is all they were exposed to, 21 sure. 22 Q. That would be enough exposure to cause 23 the disease, correct? 24 A. If that's what they were exposed to, 15:49:13 15:49:16 15:49:19 15:49:22 15:49:26 15:49:27 15:49:27 15:49:30 15:49:32 15:49:33 15:49:36 15:49:39 15:49:41 15:49:44 15:49:46 15:49:50 15:49:51 15:49:53 15:49:54 15:49:57 15:49:58 15:50:01 15:50:05 15:50:09 15:50:13 15:50:13 15:50:16 15:50:17 15:50:19 15:50:19 15:50:21 15:50:26 15:50:27 15:50:29 15:50:33 15:50:35 15:50:41 15:50:44 15:50:48 15:50:50 15:50:50 15:50:54 15:50:57 15:51:01 15:51:01 15:51:03 15:51:07 15:51:10 AUGUST 26, 2009 239 1 that was their only exposure, they got mesothelioma 2 in the appropriate latency period, certainly. 3 Q. You've testified in the past that 85 to 4 90 percent of the mesothelioma cases that occur are 5 caused by asbestos, correct? 6 A. Right. 7 Q. That leaves 10 to 15 percent that are 8 caused by something else that we just can't 9 identify, correct? 10 A. Well, that's a group called idiopathic. 11 It means you don't know the cause. So within that 12 group, there may be some asbestos -- in fact, there 13 probably are some asbestos-induced mesotheliomas, 14 but you weren't able to find the cause, you weren't 15 able to find the source and so it remains 16 idiopathic in that group, sure. 17 Q. We just don't know the cause, correct? 18 A. That's right. 19 Q. Okay. You talked about fiber types. 20 That's been discussed. 21 You understand that chemically, 22 physically, structurally and electrically, 23 chrysotile asbestos fibers differ from the 24 amphibole fibers, correct? 240 1 A. Right. 2 Q. Do you agree that some of those 3 differences, sir, make the amphiboles the potent 4 fiber in causing the disease? 5 A. Yes. 6 Q. For example, the iron is one of the 7 molecular components of the amphibole that's not 8 present in chrysotile, correct? 9 A. Well, not present isn't quite correct 10 because chrysotile can accumulate iron, and so it 11 has many of the same properties after it 12 accumulates the iron, but in its primal mineralogic 13 structure, that's correct, it doesn't contain iron. 14 Q. Does the chemical definition or chemical 15 content of chrysotile contain iron? 16 A. No. 17 Q. And do you agree that the fact that 18 crocidolite and amosite contains iron means that 19 they will produce more oxygen radicals than 20 chrysotile? 21 A. Right. So we haven't talked about 22 oxygen radicals and those are short-lived, 23 high-energy compounds that can cause DNA damage, 24 can cause the kind of genetic errors we've been TRANSCRIPT OF PROCEEDINGS 15:51:13 15:51:15 15:51:18 15:51:21 15:51:25 15:51:28 15:51:30 15:51:31 15:51:32 15:51:37 15:51:37 15:51:38 15:51:40 15:51:41 15:51:43 15:51:46 15:51:50 15:51:52 15:51:52 15:51:53 15:51:55 15:51:59 15:52:00 15:52:01 15:52:04 15:52:06 15:52:08 15:52:10 15:52:14 15:52:16 15:52:20 15:52:20 15:52:24 15:52:26 15:52:28 15:52:29 15:52:32 15:52:32 15:52:33 15:52:35 15:52:37 15:52:37 15:52:37 15:52:41 15:52:44 15:52:47 15:52:49 15:52:50 241 1 talking about, and all the asbestos varieties can 2 do that, but you're correct if you say the 3 amphiboles produce more oxygen radicals, and that's 4 probably another reason that they're more potent. 5 Q. And the existence of oxygen radicals 6 does play a role in the development of 7 asbestos-related disease, correct? 8 A. Cancer, yes, that's right. 9 Q. Scientists use a concept known as 10 half-life, right? 11 A. Right. 12 Q. Can you tell me what -- tell the jury, 13 please, what half-life is? 14 A. Half-life is the time that it takes for 15 half of the material to disappear from the body. 16 Q. And of the fiber types we've been 17 talking about, they have different half-lives, 18 correct? 19 A. Yes. 20 Q. And would you agree that the half-life 21 of amosite and crocidolite is usually measured in 22 years and even decades? 23 A. Right. 24 Q. Okay. And that the half-life of 242 1 chrysotile is more typically measured in days, 2 weeks or possibly months? 3 A. Yes. But again, of course, you can 4 still have some chrysotile fibers maintained for 5 the life of the individual and they break down and 6 tend to accumulate in the pleura, the target site, 7 but -8 Q. My question was: Does amosite have a 9 half-life measured in decades and chrysotile have a 10 half-life measured in days, weeks or months? That 11 was the question. 12 A. I answered the question yes and then I 13 explained. 14 Q. Thank you. 15 Amosite is much more durable, 16 long-lasting and it lasts longer in the lungs, 17 correct? 18 A. Yes. 19 Q. Now, there is no serious debate -- we've 20 heard this. There's no serious debate in the 21 medical and scientific community today that there 22 is a potency difference between amosite and 23 crocidolite on the one hand and chrysotile on the 24 other, correct? 15:52:50 15:52:51 15:52:53 15:52:57 15:52:58 15:53:00 15:53:03 15:53:04 15:53:05 15:53:09 15:53:12 15:53:15 15:53:17 15:53:20 15:53:21 15:53:26 15:53:29 15:53:31 15:53:34 15:53:35 15:53:38 15:53:40 15:53:41 15:53:44 15:53:44 15:53:47 15:53:49 15:53:53 15:53:56 15:53:59 15:53:59 15:54:01 15:54:04 15:54:07 15:54:09 15:54:11 15:54:14 15:54:17 15:54:21 15:54:23 15:54:25 15:54:25 15:54:27 15:54:28 15:54:30 15:54:33 15:54:33 15:54:34 AUGUST 26, 2009 243 1 A. I agree. 2 Q. On the other hand, would you agree, 3 Doctor, that there is and are good and reputable 4 scientists who believe that chrysotile doesn't 5 cause mesothelioma at all? 6 A. A few. There are a couple of people who 7 will tell you that. 8 Q. Thank you. 9 Now, just a few questions on this "each 10 and every exposure contributes to cause 11 mesothelioma" opinion you have. 12 You agree that you have no scientific -13 there is no scientific test that has led you to 14 that conclusion, correct? 15 A. It's an interesting question. 16 Q. I can maybe shorten it. 17 Do you recall saying that exact 18 statement on July -- in 2006 in the Baxter trial? 19 I can -20 A. I'm sure -- I probably said no. I mean, 21 I've not done a test to do that. 22 Q. Excuse me? 23 A. I say I've not done a test to do that. 24 Q. Okay. 244 1 A. As far as I know, there is no scientific 2 test of that concept. 3 Q. And you have not published a paper -- of 4 the 149 papers you've published on all sorts of 5 topics, you never published a paper on this topic, 6 correct? 7 A. No, nor have I -- nor has anyone tried 8 to separate out the various exposures. 9 I mean, whether it's -- as I said, 10 whether it's asbestos over and over and over again 11 or whether it's cigarette smoke over and over and 12 over again, these are -- the concept is that what 13 you're exposed to is what causes the disease. 14 Q. Doctor, you would agree that there are 15 some products that contain asbestos that are 16 referred to as friable products? 17 A. Right. 18 Q. Can you give us a definition of 19 "friable," please? 20 A. It comes apart, basically. 21 Q. Crumbles or turns to powder? Is that 22 acceptable? 23 A. That's fine. 24 Q. Okay. Would you also agree that there TRANSCRIPT OF PROCEEDINGS 15:54:37 15:54:40 15:54:41 15:54:41 15:54:44 15:54:47 15:54:48 15:54:49 15:54:52 15:54:54 15:54:57 15:55:00 15:55:02 15:55:03 15:55:05 15:55:06 15:55:07 15:55:09 15:55:11 15:55:14 15:55:17 15:55:17 15:55:18 15:55:21 15:55:23 15:55:25 15:55:26 15:55:28 15:55:31 15:55:33 15:55:34 15:55:34 15:55:36 15:55:38 15:55:39 15:55:42 15:55:44 15:55:47 15:55:48 15:55:52 15:55:56 15:55:59 15:56:01 15:56:03 15:56:06 15:56:08 15:56:09 15:56:10 245 1 are other products that are referred to as 2 encapsulated products? 3 A. Yes. 4 Q. And that those are products that -5 where the fiber would be bound and mixed in with 6 other materials? 7 A. That's what I understand. 8 Q. Okay. And would you agree that when an 9 encapsulated product releases asbestos fibers, some 10 of those fibers may have glue or other binding 11 materials bound to the individual fibers? 12 A. Well, I suppose they do, but it's not 13 knowledge that I have. 14 Q. Well, do you recall testifying to that 15 in 2006 -16 A. So I -17 Q. -- in the Baxter trial? 18 A. I said yes in 2006? I don't know. 19 Q. You did. We can pull the transcript. 20 A. No, I'm sure it's immaterial to this 21 whole issue. 22 I don't know anything about these 23 products. If you're telling me that some of them 24 contained glue and other junk on them, then fine, 246 1 they don't. I don't know anything about this. 2 Q. And the question is: Would you agree 3 that some of those fibers if they are released from 4 the encapsulated product would have some glue and 5 the binding material stuck on the fiber? 6 A. Well, maybe it would. I just don't 7 know. 8 Q. Okay. And would you agree that that 9 glue or other material would cause that fiber to 10 tumble and react differently? 11 A. Probably. 12 Q. And would you agree that asbestos is not 13 dangerous unless it becomes airborne and inhaled? 14 A. That is true. 15 Q. And you have no reason to disagree with 16 the proposition that friable products include the 17 asbestos-containing insulation products on Navy 18 ships and industrial facilities, do you? 19 A. Well, I don't know that. If you're 20 telling me they come apart and want me to assume 21 that, I can, but I don't know that of my own -22 Q. That's fine. 23 And would you agree that in place -24 asbestos that is in place and undisturbed is not 15:56:14 15:56:14 15:56:15 15:56:19 15:56:21 15:56:24 15:56:27 15:56:28 15:56:28 15:56:30 15:56:34 15:56:36 15:56:36 15:56:40 15:56:44 15:56:45 15:56:49 15:56:52 15:56:56 15:56:56 15:56:56 15:56:59 15:57:01 15:57:02 15:57:03 15:57:05 15:57:08 15:57:09 15:57:11 15:57:12 15:57:16 15:57:20 15:57:23 15:57:24 15:57:25 15:57:31 15:57:33 15:57:37 15:57:40 15:57:43 15:57:43 15:57:48 15:57:50 15:57:54 15:57:58 15:57:58 15:58:00 15:58:03 AUGUST 26, 2009 247 1 dangerous? 2 A. I agree. 3 Q. We talked about clearance, and just to 4 put a couple questions on that topic, you would 5 agree that a majority of the asbestos fibers that 6 are inhaled are cleared and eliminated from the 7 lungs, correct? 8 A. Yes. 9 Q. In fact, you've testified in the past 10 that approximately 95 percent of all fibers that 11 are inhaled are eliminated, is that correct? 12 A. Yes. 13 Q. And that's as a result of the defense 14 mechanisms you eloquently told us about, correct? 15 A. Yes. 16 Q. Then does it go to follow, sir, that the 17 smaller the exposure, the more likely it is that 18 the body's defense mechanisms will remove the 19 fibers? 20 A. Yes. 21 Q. And it follows, then, that the lower the 22 exposure, the less likely you are to get 23 mesothelioma, correct? 24 A. Correct. 248 1 Q. Another way to say that is the fewer 2 number of fibers that are inhaled, the lower the 3 risk of contracting the disease, correct? 4 A. True. This is the dose/response 5 concept. 6 Q. In order to conclude that chrysotile 7 causes mesothelioma, a scientist would need a -8 mesothelioma in humans, a scientist would need 9 epidemiological evidence, correct? 10 A. Yes. 11 Q. Now, you've done animal studies. 12 Do you agree that if there's a conflict 13 between animal studies and epidemiologic studies -14 talking about humans now -- the epidemiologic 15 studies would trump the animal studies? 16 A. Yes. 17 Q. Sticking with the animal studies for a 18 moment, you understand that there have been studies 19 that show that amosite causes mesothelioma in 20 baboons, monkeys and hamsters while chrysotile does 21 not? 22 A. I've seen those studies, yes. 23 Q. And would you agree that a rat is not a 24 good model for predicting whether humans will get TRANSCRIPT OF PROCEEDINGS 15:58:07 15:58:09 15:58:13 15:58:15 15:58:18 15:58:23 15:58:27 15:58:30 15:58:34 15:58:39 15:58:40 15:58:42 15:58:44 15:58:44 15:58:47 15:58:48 15:58:50 15:58:53 15:58:54 15:58:55 15:58:59 15:59:01 15:59:04 15:59:05 15:59:08 15:59:11 15:59:14 15:59:15 15:59:16 15:59:17 15:59:17 15:59:23 15:59:25 15:59:28 15:59:30 15:59:31 15:59:34 15:59:35 15:59:35 15:59:39 15:59:40 15:59:40 15:59:43 15:59:46 15:59:49 15:59:51 15:59:53 15:59:55 249 1 mesothelioma from exposure to chrysotile? 2 A. Well, none of the animal models will do 3 a very goodjob of predicting disease. That's 4 really not what they should be used for. They're 5 used for demonstrating mechanisms of disease and 6 introducing what's called biological plausibility. 7 So if you did an epidemiological study 8 and the animal studies give you the same disease, 9 then it shows you how it happens and it will be 10 biologically plausible that the study is correct. 11 Q. So it's not a good predictor? 12 A. I don't think any of the animal studies 13 are good predictors. 14 Q. And, similarly, in vitro studies are not 15 good predictors? 16 A. No. Again, they're mechanistic studies 17 that allow you to go on and ask the more important 18 question -- or the other important questions in 19 populations. 20 Q. You're aware that the various 21 non-asbestos fibers have been shown to cause 22 mesothelioma in in vitro studies? 23 A. True. 24 Q. Such as ceramic fibers in hamsters? 250 1 A. Well, ceramic fibers have been used 2 in vivo in hamster inhalation studies to cause 3 mesothelioma. 4 Is that what you're asking me? 5 Q. Yes. 6 A. Yes. 7 Q. Speaking now in a general perspective, 8 there are numerous substances that have been shown 9 to cause cancer in laboratory animals but have not 10 yet been shown to cause cancer in humans, correct? 11 A. Right. 12 Q. And you need that epidemiological study 13 to make the connection, right? 14 A. I agree. 15 Q. You've never worked or studied gaskets 16 in your line of work, correct? 17 A. I have not. 18 Q. And the animal studies that you've done 19 are not ones where you've exposed animals to an 20 environment that would replicate a human working on 21 gaskets or packing, is that correct? 22 A. Well, I don't know what the environment 23 is in gaskets and packing, but I've certainly never 24 tried to replicate any kind of workplace. I mean, 15:59:58 16:00:02 16:00:04 16:00:08 16:00:08 16:00:11 16:00:12 16:00:12 16:00:14 16:00:16 16:00:16 16:00:16 16:00:19 16:00:21 16:00:24 16:00:25 16:00:25 16:00:41 16:00:42 16:00:42 16:00:44 16:00:46 16:00:47 16:00:50 16:00:54 16:00:54 16:00:55 16:00:58 16:00:59 16:01:02 16:01:05 16:01:08 16:01:09 16:01:10 16:01:13 16:01:14 16:01:15 16:01:17 16:01:24 16:01:32 16:01:34 16:01:54 16:01:56 16:02:00 16:02:03 16:02:03 16:02:03 16:02:05 AUGUST 26, 2009 251 1 the workplace that I've replicated is one of 2 decades ago when people were working at high 3 concentrations and as insulators and things like 4 that. 5 Q. Right. The focus for you is to study 6 mechanisms? 7 A. Right. 8 Q. I know that's a generalization, but 9 you're focusing on the mechanism of disease, 10 correct? 11 A. Right. 12 Q. You want to get them to have the 13 disease, so you put high levels in there for 14 concentrated periods of time and try to induce that 15 disease quickly, correct? 16 A. Correct. 17 Q. Okay. You are familiar with Dr. Irving 18 Selikoff, correct? 19 A. Sure. 20 Q. Would you agree he's one of the leading 21 authorities on asbestos and its dangers? 22 A. Certainly. 23 Q. Would you agree that his book in 1978 is 24 a learned treatise on the topic? 252 1 A. Yes. 2 Q. Have you read that book? 3 A. Not cover to cover, but I have it and 4 I've read parts of it, sure. 5 Q. Are you aware that in 1978, Dr. Selikoff 6 concluded that there was no evidence that gaskets 7 and packing are harmful and, therefore, they should 8 be deemed safe in the workplace? 9 MS. DEAN: Objection, vague and 10 misrepresentation. It was only in fabrication. 11 THE COURT: Overruled. 12 BY THE WITNESS: 13 A. I know that there is a table that says 14 that. I don't know the sources or how true it is 15 or isn't. I know that it says that in there. 16 BY MR. KING: 17 Q. Just a few more questions, Doctor. 18 Your experiments have always involved 19 what you called a fine aerosol with asbestos being 20 blown into a chamber for the animals to inhale, 21 right? 22 A. Correct. 23 Q. And that means that the particles are 24 fine and powdery-like fiber insulation? TRANSCRIPT OF PROCEEDINGS 16:02:08 16:02:09 16:02:11 16:02:15 16:02:17 16:02:20 16:02:21 16:02:21 16:02:25 16:02:28 16:02:29 16:02:32 16:02:33 16:02:37 16:02:39 16:02:42 16:02:44 16:02:45 16:02:48 16:02:50 16:02:50 16:02:53 16:02:54 16:02:55 16:02:56 16:02:59 16:02:59 16:03:00 16:03:05 16:03:08 16:03:09 16:03:09 16:03:09 16:03:11 16:03:12 16:03:14 16:03:17 16:03:19 16:03:23 16:03:27 16:03:29 16:03:30 16:03:33 16:03:35 16:03:37 16:03:37 16:03:38 16:03:42 253 1 A. Correct. 2 Q. And you've never used your equipment to 3 grind up a gasket or grind up packing and see what 4 happens to the rats' lungs when they're exposed to 5 ground-up packing or gaskets, correct? 6 A. I have not. Maybe others have, but I 7 have not. 8 Q. Well, the photos you showed earlier, 9 you're not suggesting any of those photos are 10 showing what a lung looks like after someone has 11 worked on or near gaskets or packing? 12 A. Well, I don't know what the asbestos 13 looks like from gaskets and packing. If it looks 14 like asbestos, then sure, that's what it would look 15 like. You know, if it looks like something other 16 than asbestos, then -- then it wouldn't look like 17 that. 18 Q. But you don't study workplace exposure 19 issues, so you don't know what that workplace looks 20 like? 21 A. That is correct. 22 MR. KING: Thank you, Doctor. 23 THE WITNESS: Thank you. 24 MR. KING: That's all. Thank you, your Honor. 254 1 THE COURT: Redirect? 2 REDIRECT EXAMINATION 3 BY MS. DEAN: 4 Q. Professor Brody, you were asked a lot 5 about the difference in potency between amosite and 6 chrysotile. 7 Do you remember that? 8 A. Yes. 9 Q. I just want to ask you one follow-up 10 question. 11 If a company sold hundreds and hundreds 12 of pounds of insulation that was amosite 13 containing, is it your belief that that would be 14 more dangerous and create more of a risk for 15 mesothelioma than selling the exact same insulation 16 product with chrysotile? 17 MR. FITZPATRICK: Objection, your Honor, 18 outside the scope and foundation. 19 MS. DEAN: They raised this issue both with 20 Crane and GE. 21 THE COURT: Overruled. 22 BY THE WITNESS: 23 A. Well, I can't say that one is more 24 dangerous than another. In other words, they both 16:03:46 16:03:49 16:03:51 16:03:53 16:03:58 16:04:01 16:04:02 16:04:06 16:04:08 16:04:12 16:04:12 16:04:14 16:04:16 16:04:17 16:04:19 16:04:23 16:04:26 16:04:29 16:04:31 16:04:34 16:04:38 16:04:42 16:04:44 16:04:46 16:04:49 16:04:52 16:04:55 16:04:58 16:05:02 16:05:02 16:05:04 16:05:06 16:05:09 16:05:12 16:05:13 16:05:16 16:05:19 16:05:19 16:05:21 16:05:23 16:05:25 16:05:27 16:05:29 16:05:32 16:05:35 16:05:36 16:05:38 AUGUST 26, 2009 255 1 produce -- they both are producing fibers that can 2 cause mesothelioma. 3 Now, it depends on how much the person 4 is exposed to and -- but as a general principle, 5 they both can cause mesothelioma. 6 BY MS. DEAN: 7 Q. You were asked about Dr. Wagner that you 8 used to work with and indicated that he went on a 9 limb with the crocidolite theory. 10 Do you remember that? 11 A. Despite the fact that I'm in the 12 courtroom, yes, that is what he did. He went out 13 on a limb. 14 Q. I want to follow up on that and ask you 15 about other sources that you've looked at to 16 determine whether other types of asbestos, the 17 chrysotile and the amosite, can cause mesothelioma. 18 Have you looked at these different 19 organizations to determine what their opinions are 20 about the ability of all types of asbestos, not 21 just crocidolite, to cause mesothelioma? And here 22 we have the National Institute For Occupational 23 Safety and Health, International Agency For 24 Research of Cancer, the U.S. Consumer Product 256 1 Safety Commission, the National Toxicology Program, 2 the United States Department of Health and Human 3 Services, OSHA, the American Cancer Society, the 4 World Trade Organization, the EPA and there are 5 others. 6 Have you looked into that? 7 A. Right. I can tell you the opinions 8 of -- and where they come from for each one of 9 those except for the Consumer Product Safety 10 Commission. I don't know where they get their 11 information. 12 Q. Okay. So we'll isolate them. 13 And what is that opinion? What are 14 those opinions? 15 A. Well, every one of those agencies has 16 published the opinion that all of the asbestos 17 varieties, including chrysotile, cause 18 mesothelioma. 19 Q. Do you recall being asked questions 20 about whether there was a safe level of exposure to 21 benzene, arsenics and other substances? 22 A. Right. 23 Q. Okay. I want to ask you just about 24 asbestos. TRANSCRIPT OF PROCEEDINGS 16:05:40 16:05:41 16:05:46 16:05:49 16:05:51 16:05:53 16:06:00 16:06:05 16:06:09 16:06:12 16:06:13 16:06:17 16:06:20 16:06:23 16:06:24 16:06:25 16:06:27 16:06:31 16:06:36 16:06:39 16:06:42 16:06:46 16:06:49 16:06:51 16:06:53 16:06:55 16:06:56 16:06:57 16:06:59 16:07:03 16:07:06 16:07:06 16:07:07 16:07:14 16:07:16 16:07:20 16:07:20 16:07:20 16:07:23 16:07:27 16:07:27 16:07:29 16:07:31 16:07:35 16:07:35 16:07:36 16:07:37 16:07:38 257 1 Have you looked at these different 2 organizations' opinions on whether there is a known 3 safe level of exposure to asbestos when we're 4 talking about a propensity to cause the disease 5 mesothelioma that Mr. Mulcahy died of? 6 A. So I don't know what each of the 7 opinions are specifically, but I've not seen a safe 8 level established by any of these agencies. 9 Q. Okay. The last question I want to ask 10 you is about the dose/response. 11 Do you remember when the last lawyer was 12 asking you about have you had more exposure that 13 increases your risk, if you have less exposure, you 14 have a smaller risk? Do you remember that? 15 A. Sure. 16 Q. How does that play into latency? 17 A. Yeah, so typically the more you're 18 exposed to, the sooner you get the disease. I 19 mean, it's just sort of what you expect, you know? 20 The higher the dose, the more likely the disease is 21 to develop early in one's life-span, and the lower 22 the dose, the longer it takes, and that may or may 23 not work out every time, but as a general 24 principle, that's what you can expect. 258 1 MS. DEAN: That's all the follow-up questions 2 I had. Thank you. 3 THE WITNESS: You're welcome. 4 THE COURT: Anything further, Mr. Fitzpatrick? 5 MR. FITZPATRICK: Yes, your Honor. 6 And you can leave that up. 7 RECROSS-EXAMINATION 8 BY MR. FITZPATRICK: 9 Q. When she said do all of these say there 10 is no safe level, these are all opinions based on 11 medical and scientific information as of 2009, 12 correct? 13 A. Right. 14 Q. These are not opinions based on medical 15 and scientific information in the '40s or '50s, 16 fair? 17 A. I agree. 18 Q. And, indeed, there were considered safe 19 levels in the '70s? We've talked about, have we 20 not? 21 A. Right. Safe versus, you know, as we 22 talked about before, what was allowed in the 23 workplace, I don't know. 24 Q. Okay. I'm not asking for guarantees, 16:07:40 16:07:44 16:07:46 16:07:50 16:07:51 16:07:51 16:07:55 16:07:58 16:07:59 16:08:03 16:08:04 16:08:05 16:08:06 16:08:08 16:08:08 16:08:10 16:08:13 16:08:34 16:08:35 16:08:36 16:08:37 16:08:38 16:08:39 16:08:41 16:08:44 16:08:47 16:08:49 AUGUST 26, 2009 259 1 but medical and science had established threshold 2 limits for many products, one of which was 3 asbestos, and for the '40s, '50s, '60s, it was 5 4 million? 5 A. Correct. 6 Q. All right. So when she says there's no 7 limit today, these are what we know as of 2009? 8 A. I agree. 9 Q. I mean, we learn a lot in medicine 10 through the years, do we not? 11 A. That's right. 12 MR. FITZPATRICK: That's all. 13 THE COURT: Anything further? 14 MR. KING: Nothing further. 15 THE COURT: Okay. You can step down. Thank 16 you. Have a nice trip back. Watch your step. 17 (Witness excused.) 18 THE COURT: You don't have any additional 19 witnesses today, correct? 20 MS. DEAN: No, your Honor. 21 THE COURT: All right. Very good. 22 Ladies and gentlemen, that concludes the 23 testimony for today. We'll see you here the same 24 time tomorrow. Please remember not to discuss the 260 1 case at all or do any independent research. 2 THE DEPUTY: All rise for the jury, please. 3 THE COURT: Have a nice night, everybody. 4 (WHEREUPON, the trial was 5 adjourned at 4:09 p.m. until 6 9:15 a.m., Thursday, August 27, 7 2009.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 TRANSCRIPT OF PROCEEDINGS 261 1 STATE OF ILLINOIS ) 2 ) SS: 3 COUNTY OF DuPAGE ) 4 I, VICTORIA C. CHRISTIANSEN, and KRISTIN 5 C. BRAJKOVICH, Certified Shorthand Reporters of the 6 State of Illinois, do hereby certify that we 7 reported in shorthand the proceedings had at the 8 hearing aforesaid, and that the foregoing is a 9 true, complete and correct transcript of the 10 proceedings of said hearing as appears from our 11 stenographic notes so taken and transcribed under 12 our personal direction. 13 IN WITNESS WHEREOF, we do hereunto set 14 our hand at Chicago, Illinois, this 26th day of 15 August, 2009. 16 17 KRISTIN C. BRAJKOVICH, 18 C.S.R. Certificate No. 84-3810; 19 20 VICTORIA C. CHRISTIANSEN, 21 C.S.R. Certificate No. 84-3192. 22 23 24 262 1 INDEX 2 3 OPENING STATEMENT ON BEHALF OF 4 PLAINTIFF 5 By Ms. Dean 17 6 DEFENDANT GENERAL ELECTRIC 7 By Mr. Fitzpatrick 50 8 DEFENDANT CRANE COMPANY 9 By Mr. King 85 10 11 WITNESS DX CX RDX RCX EXAM 12 ARNOLD BRODY, Ph.D. 13 By Ms. Dean 129 254 14 By Mr. Fitzpatrick 199 258 15 By Mr. Schalk 235 16 17 E X H I B I T S 18 MARKED REC'D 19 FOR ID IN EV. 20 NUMBER 21 NO EXHIBITS MARKED OR RECEIVED 22 23 24 AUGUST 26, 2009