Document vVbQonVvaZEqyvR0qDy7bvvjZ

1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ----------------------------------------------------------------------------------------------x IN RE: ASBESTOS PRODUCTS Civil LIABILITY LITIGATION Number (NO. VI) ............................................................................................-..................x This Document Relates to: Action MDL 875 UNITED STATES DISTRICT COURT FIFTH DIVISION, DISTRICT OF MINNESOTA ....................-...........................................-.....................................-- x CONWED CORPORATION, Plaintiff, against- Case Number 5-9-2-88 UNION CARBIDE COMPANY, INC. Corporation), . CHEMICALS AND PLASTICS (f/k/a) Union Carbide Defendant, -and- UNION CARBIDE CHEMICALS AND PLASTICS COMPANY, INC. (f/k/a Union Carbide Corporation), -against- OWENS CORNING FIBERGLAS CORPORATION, et al., WALKER JAMAR COMPANY., A. W. KUETTEL & SONS, INC., API, INC-., and MAC ARTHUR COMPANY, Third-Party Defendants. J ................................-..............................................................................x o October 12, 1994 -- - f ntTATNfK Doyle Reporting, Inc. CERTIFIED STENOTYPE REPORTERS Total Litigation Support WALTER SHAPIRO. CSR CHARLES SHAPIRO. CSR DUPLICATE FILE COPY . 169 LEXINGTON AVENUE NEW YORK. N.Y. 10017 (212)867-8220 UCAREF00018903 mm 2 October 12, 1994 4:20 p.m. Deposition of HARRISON B. RHODES, taken by Plaintiff pursuant to notice, at the law offices of Kelley, Drye & Warren, Esqs., 101 Park Avenue, New York, New York, before Paul Kirschen, . Certified Shorthand Reporter and Notary Public within and for the State of New York. 1 UCAREF00018904 14 2 HARRISON B. RHODES, having 3 been first- duly sworn by a Notary Public of 4 the State of New York (Paul Kirschen), was 5 examined and testified as follows: 6 EXAMINATION. 7 BY MR. BROWNSON: 8 Q. Dr. Rhodes, as I told you earlier, my 9 name is Bob Brownson, and I am representing the 10 Conwed Corporation, who is a plaintiff in a 11 lawsuit against Union Carbide Corporation. We are 12 here today to take your deposition in connection 13 with that case. 14 I understand you have had your 15 deposition taken before, so I won't bore you with 16 a lot of rules about depositions. But you 17 understand that you are under oath 'here today? 18 A. Yes. 19 Q. I would just ask that you answer 20 audibly, out loud. Don't shake your head or 21 mumble, that sort of thing, because the court 22 reporter can't take that down. 23 A. 0.K. 24 Q. And try not to speak when I am 25 speaking, and I will do the same, so each of us DOYLE REPORTING, INC. (212)867-8220 UCAREF00018910 1 Rhodes 5 2 speaks clearly and one at a time, so the reporter 3 can take this down more easily. 4 Will you do that? 5 A. Yes. 6 Q. Finally, if any question isunclear 7 to you or if you don't understand the question, 8 please tell me that before you answer the 9 question, so we have a record that reflects 10 answers to questions that you understood. 11 A. Yes. 12 Q. Dr. Rhodes, before youarrived here 13 this morning for this deposition, did you know 14 anything about this particular lawsuit, the case 15 of Conwed versus Union Carbide? 16 A. I arrived here several days ago and 17 reviewed at my request a variety of items, 18 basically dust counting files, the Conwed core 19 reports, the Conwed dust counting in particular, 20 the section of the deposition that Langer gave on 21 his experiments. 22 Q. The deposition by Dr. Langer in this 23 case? 24 A. In this case. 25 Q . O.K. DOYLE REPORTING, INC. {212)867-8220 UCAREF00018911 1 Rhodes 107 2 actual sampling was for a period ranging from 49 3 to about 72 minutes, usually about an hour; does 4 that sound right? 5 A. Yes. 6 Q. But then the results are reported - 7 and I am looking at page number 3 -- the results 8 are reported as chrysotile asbestos. 9 Do you see that? 10 A. Yes . 11 Q And a figure is then given there. I 12 am looking at the first results; for example. page 13 3 , 3.4. 14 Do you see that? 15 A. Yes . 16 Q. Now, I assume that reference to 17 fibers per cubic centimeter of air -- 18 A. Yes . 19 Q. -- those are fibers greater than f ive 20 microns in length? 21 A. That is the way the column is headed. 22 Q. Is that an eight-hour time-weighted 23 average? 24 A. No. That is a ceiling for that time 25 period. DOYLE REPORTING, INC. (212)867-8220 UCAREF00019013 1 Rhodes 108 2 Q. So that is based upon 60 minutes of 3 sampling? 4 A. On that one, yes. 5 Q. During the time Union Carbide 6 measured asbestos levels in the air at either its 7 own facilities or at customer facilities, do you 8 know if any measurements were made of fibers less 9 than five microns in length? 10 A. I do not know of any measurements 11 less than five microns. 12 Q. You said that the measurement length 13 of five microns was chosen because that is the 14 OSHA standard? 15 A. Yes. 16 Q. But in terms of those measurements 17 that were done at King'City before OSHA, from '63 18 to about '71, '72, would you agree.with me that 19 those were also measured and reported only as 20 fibers greater than five microns in length? 21 A. I don't know. I have not looked at 22 those reports. 23 Q. Do you know if those reports exist? 24 A. I do not know if they exist. 25 Q. So, as far as you know, those reports DOYLE REPORTING, INC. (212)867-8220 UCAREF00019014 1 Rhodes 109 2 may or may not have measured fibers less than five 3 microns in length? 4 A. As far as I know. I do not know 5 whether that is so. 6 Q. You don't know one way or another? 7 A. I don't know one way or another. 8 Q. You are aware of the fact, of course, 9 that in terms of physical size, Calidria asbestos 10 fiber is mostly less than five microns in length? 11 A. By fiber number or by weight? 12 Q. By fiber number. 13 A. The number of fibers smaller than 14 five is considerably more than the number of 15 fibers larger. 16 Q. Have you seen size distribution 17 measurements or data for Calidria asbestos fiber 18 that shows, on a percentage basis, how many fibers 19 are of different sizes of lengths? 20 A. Yes. 21 Q. As you sit here today, can you recall 22 what that data showed? 23 A. The only thing I can recall is that 24 there were a fairly substantial percentage by 25 weight that were not only longer than five microns DOYLE REPORTING, INC. (212)867-8220 UCAREF00019015 * 1 Rhodes 110 2 but much longer. 3 Q. Well, in terms of number of fibers, 4 do you recall what the percentages were that were 5 greater than five microns? 6 A. No. 7 Q. Would you agree with me that, 8 measuring by weight, a greater percentage were 9 greater than five microns in length than if you 10 just measure by total number? 11 A. To the best of my recollection, I 12 can't say more, but a very substantial percentage 13 were using larger fibers. 14 Q. That is because larger fibers are 15 heavier? 16 A. Bigger and heavier. 17 Q. Now, do you know what the unit - 18 let's go again - 19 A. Are we done with this exhibit? 20 Q. You can look at it if you want to. 21 We will get back to it. 22 But using the phase contrast 23 microscope technique, do you know what the limit 24 of detection was for fiber diameter? In other 25 words, what is the thinnest fiber that could be DOYLE REPORTING, INC. (212)867-8220 UCAREF00019016 1 Rhodes 173 2 MR. WILL: Read the title. 3 A. "Occurrence of Ultra Fine Fibers in 4 Calidria RG244 asbestos," August 24, 1978. 5 Q. Is it a memorandum or a report? 6 A. Informal report. - 7 Q. Addressed to Mr. Myers, who is the 8 manager of the King City plant? 9 A. Yes. 10 Q. It is written by you? 11 A. Yes . 12 Q. And the work done by Mr. Engels and 13 Glenda J. Spencer. August 24, 1978. 14 Do you remember why this report was 15 prepared? 16 A. Yes. 17 Q. Why was that? 18 A. In our customer sampling program, we 19 had suddenly picked up a couple of high fiber 20 counts in the RG244 product, which normally 21 gave -- routinely gave very, very low fiber 22 counts. And we also had had a report from a 23 customer, it states here, that their fiber counts 24 were now one to two; and I think, from what I read 25 here, also, an OSHA inspection got a very high DOYLE REPORTING, INC. (212)867-8220 UCAREF00019079 1 Rhodes 174 2 fiber count. 3 Q. At that customer's plant? 4 A. At the customer's plant. 5 So we went back and looked at the 6 filters. We had saved all the filters from the 7 customer counts over the years and stored them, so 8 we had them available to go back and look at them. 9 And we went back and looked at them and, in 10 general, found that there were -- in some of the 11 filters, there were fibers longer than five 12 microns that were also very fine. They were at 13 the limit of detection. 14 Q. By the polarized - 15 A. By the phase contrast microscopy. 16 If you had a microscope that was on 17 the good side, you could see them, and if you 18 didn't, you didn't. 19 And we had also been making -- had 20 made a couple of increases in capacity. The RG244 21 was manufactured in a separate circuit, and we had 22 made capacity increases and some processing 23 changes in that time frame. And these sections, 24 identifiable times when you could -- when you 25 found these marginally detectable fibers, seemed DOYLE REPORTING, INC. (212)867-8220 UCAREF00019080 1 Rhodes 175 2 to -- could represent the times these changes had 3 been made. 4 Q. o.K. And you drew some conclusions 5 from them, which you set out in the report. And 6 we don't need to belabor them in detail. But my 7 question is: 8 Do you know whether the information 9 contained in this report or the conclusions 10 contained in this report were then given to the 11 customers, or was this retained for Union 12 Carbide's internal use? 13 A. I don't know whether it was given to 14 customers or not. 15 I believe it caused us to start 16 running internal QC and adjust our processing 17 conditions so that we were not doing this. 18 Q. The report has the heading on it 19 "Business confidential." 20 Do you know what was meant by that? 21 A. That was meant to -- basically, to go 22 to a very small distribution, that you see there. 23 Q- Why did you place that heading on the 24 report? 25 A. Because we wanted, basically, to DOYLE REPORTING, INC. (212)867-8220 UCAREF00019081 1 Rhodes 186 2 Q. Doctor, by way of clarification, if 3 you are looking at fibers that are longer than 4 five microns, talking only about that type of 5 fiber, would you expect to be able to see all 6 of the fibers longer than five microns with 7 PCM, if you are properly trained in that 8 microscope? 9 A. No. 10 Q. Do you have any sense of what the 11 percentage is? 12 A. No. 13 Q. All right. Doctor, am I correct, do 14 I understand correctly from yourlast answer, that 15 you don't have any sense of what percentage of the 16 fibers over five microns you would be able to see 17 with PCM? 18 MR. BROWNSON: I will object to the 19 form of the question. 20 MR. WILL: I wil 1 rephrase it. 21 Q. Do you have any s ense, Doctor - - 22 let's talk about Calidria asbe stos -- of what 23 percentage of the fibers over five microns that 24 exist in a sample you would be able to see with 25 PCM, the way you did it -- the way it was done DOYLE REPORTING, INC. (212)867-8220 UCAREF00019092 # 1 Rhodes 187 2 when you were at Union Carbide? 3 A. I would think you would be able to 4 see a substantial proportion of them. 5 Q. Are you able to say with any more 6 specificity than that? ' 7 A. I can't say with any more 8 specificity. 9 MR. WILL: O.K. 10 FURTHER EXAMINATION 11 BY MR. BROWNSON: 12 Q. Have you seen any Calidria asbestos 13 fiber size distribution data that actually tells 14 you what portion of them are detectable by PCM and 15 what are not? 16 A. No. 17 MR. WILL-: We are talking about 18 fibers over five microns? 19 . MR. BROWNSON: Over five microns. 20 A. I have not seen any data of that 21 type. 22 FURTHER EXAMINATION 23 BY MR. WILL: 24 Q. Doctor, did you do any studies 25 actually comparing asbestos fiber from the Union DOYLE REPORTING, INC. (212)867-8220 UCAREF00019093 1 Rhodes 188 2 Carbide mine with fiber from the Johns-Manville 3 mine or fiber from the Atlas mine in the Calidria 4 deposit? ' 5 A. I did not. 6 Q. Are you aware of any such 7 studies being done by other people at Union 8 Carbide? 9 A. There may have been work in that area 10 done by Dr. Mumpton and another gentleman whose 11 name escapes me, back in the early days of the 12 project. Dr. Shwatzdiak. 13 Q. If there was such work, we should ask 14 Mumpton and Shwatzdiak? 15 A. Yes. 16 Q. They would be the ones that know 17 about it if there was any such work? 18 Yes . 19 MR. WILL : All right. 20 MR . WILL : That is all I've got. 21 MR. BROWNSON: Just for the record, 22 you will put the exhibits with the original 23 and then'copy exhibits for the copies. The 24 reporter can send me the original for later 25 filing with the court. DOYLE REPORTING, INC. (212)867-8220 UCAREF00019094 1 Rhodes 189 2 MR. WILL: Right. 3 And he does want to read it and sign 4 5 MR. BROWNSON: Thank you. 6 (Time noted: 4:20 p.m.) 7 8 9 10 11 Subscribed and sworn to before me 12 thisday of1994 13 14 15 16 17 18 19 20 21 22 23 24 25 DOYLE REPORTING, INC. (212)867-8220 UCAREF00019095 1 190 2 C E RT.XI.XCATE 3 4 STATE OF NEW YORK 5 COUNTY OF NEW YORK ) ) ss. : ) 6 7 I, PAUL KIRSCHEN, a Certified 8 Shorthand Reporter and Notary Public within 9 and for the State of New York, do hereby 10 certify: 11 That I reported the proceedings in 12 the within-entitled matter, and that the 13 within transcript is a true record of such 14 proceedings. 15 I further certify that I am not 16 related, by blood or marriage, to any of 17 the parties in this matter and that I am in 18 no way interested in the outcome of this 19 matter. 20 IN WITNESS WHEREOF, I have hereunto lot* 21 set my hand this dav of October, 1994. 22 'Y&J! l^uscL----- 2 3 24 PAUL KIRSCHEN, CSR 25 UCAREF00019096