Document w1DRmGnZJOq569Gw64KOjMj3

file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 0001 1 CAUSE NO. A-167,693 2 JAMES COWEY AND RUTH ) IN THE DISTRICT COURT 3 COWEY ) ) 4 PLAINTIFFS, ) ) 5 VS. ) JEFFERSON COUNTY, TEXAS ) 6 RADIATOR SPECIALTY ) COMPANY, ET AL ) 7) DEFENDANTS. ) 58TH JUDICIAL DISTRICT 8 9 10 ******************************************************** 11 ORAL DEPOSITION OF 12 ETHAN A. NATELSON, MD 13 DECEMBER 3, 2003 14 ******************************************************** 15 16 ORAL DEPOSITION OF ETHAN A. NATELSON, MD, produced 17 as a witness at the instance of the PLAINTIFFS, and duly 18 sworn, was taken in the above-styled and numbered cause 19 on the 3RD day of DECEMBER, 2003, from 2:09 p.m. to 3:32 20 p.m., before Mark A. Miller, CSR in and for the State of 21 Texas, reported by machine shorthand, at the offices of 22 the Stehlin Oncology Clinic, 1315 St. Joseph Parkway, 23 Suite 1800, Houston, Texas, pursuant to the Texas Rules 24 of Civil Procedure and the provisions stated on the 25 record or attached hereto. 0002 1 APPEARANCES 2 3 FOR THE PLAINTIFFS: 4 MR. LANCE LUBEL MR. J. ROBERT BLACK 5 HEARD, ROBINS, CLOUD, LUBEL & GREENWOOD 910 TRAVIS STREET, SUITE 2020 file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (1 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 6 HOUSTON, TEXAS 77002 7 8 FOR THE DEFENDANTS UNITED STATES STEEL CORPORATION, ARISTECH CHEMICAL CORPORATION AND USX CORPORATION: 9 MR. STEPHEN C. DILLARD FULBRIGHT & JAWORSKI 10 1301 MCKINNEY, SUITE 5100 HOUSTON, TEXAS 77010 11 12 FOR THE DEFENDANT RADIATOR SPECIALTY COMPANY: 13 MS. STACY K. YATES COATS, ROSE, YALE, RYMAN & LEE 14 1001 FANNIN, SUITE 800 HOUSTON, TEXAS 77002-6707 15 16 17 18 19 20 21 22 23 24 25 0003 1 INDEX 2 PAGE 3 Appearances.................................. 2 4 Stipulations................................. 4 5 6 ETHAN A. NATELSON, MD 7 Examination by MR. LUBEL................. 4 8 9 10 Signature and Changes.......................... 60 file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (2 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 11 Reporter's Certificate......................... 62 12 13 14 EXHIBITS 15 16 NO.DESCRIPTION PAGE 17 1 List of Testimony by Witness 6 18 2 Letter Report 8 19 3 Letter to Douglas Dougherty 12 20 4 Curriculum Vitae 15 21 5 IRIS, Substance: Benzene 31 22 6 Document entitled, Carcinogenic Effects of Benzene: An Update 31 23 7 Two studies 45 24 25 0004 1 THE REPORTER: Would you like to read and 2 sign your deposition? 3 THE WITNESS: Yes. 4 THE REPORTER: Would you like to take the 5 deposition by the rules? 6 MR. LUBEL: Yes. 7 ETHAN A. NATELSON, M.D., 8 having been first duly sworn, testified as follows: 9 MR. LUBEL: All right. 10 EXAMINATION 11 BY MR. LUBEL: 12 Q. Please state your full name. 13 A. Ethan A. Natelson. 14 Q. Where do you reside? 15 A. At 8707 Wateka Drive in Houston. 16 Q. How are you employed? 17 A. I have multiple employers. I'm employed in 18 part by St. Joseph Hospital where I manage the -- one of 19 the residency programs, so-called transitional 20 internship program. I'm also employed by the Stehlin 21 Oncology Clinic where I do private practice. 22 Q. Dr. Natelson, my name is Lance Lubel. You and 23 I have never met before today, have we? file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (3 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 24 A. I don't think so. 25 Q. And are you familiar with my law firm? 0005 1 A. No. 2 Q. You don't recall ever being hired by my law 3 firm to be an expert? 4 A. No. 5 Q. Who hired you in this case? 6 A. Well, originally I was contacted by an 7 attorney by the name of Ricky Raven of Porter & Hedges. 8 And then subsequently by attorneys from Ellis 9 Carstarphen, and then subsequently by Mr. Dillard from 10 Fulbright & Jaworski. 11 Q. Did you ever have any conversations with a 12 lawyer by the name of Bob Scott? 13 A. I don't think so. I know who Bob Scott is, 14 but I don't think I spoke to him in reference to this 15 case. 16 Q. You've been hired by the defendants as an 17 expert in these chemical exposure cases for a number of 18 years; is that correct? 19 A. For several years, yes. 20 Q. How did you get introduced to this business of 21 being an expert witness? 22 A. Actually, I think the first case -- I have a 23 listing here of the cases that I've testified in since 24 1992. I think the first time I got involved in this was 25 in 1992, and it had to do with a patient that was my 0006 1 patient, Mr. Mimms, who had chronic granulocytic 2 leukemia. And he alleged that his illness was caused by 3 benzene exposure. And I testified as a treating 4 physician at a hearing in Galveston concerning that 5 issue, and I think that was the first testimony I gave 6 relative to, let's say, benzene. 7 MR. LUBEL: Let me go ahead and mark this 8 as Exhibit Number 1. 9 (Exhibit 1 marked.) 10 Q. (BY MR. LUBEL) This is a list of testimony 11 that you've given that you've provided to us at your 12 deposition, correct? 13 A. Yes. 14 Q. Who was the defense lawyer that contacted you? file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (4 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 15 A. You're talking about which case, the original 16 case that I mentioned? 17 Q. Correct. 18 A. I'm not certain. It may have been John 19 Shoebotham, but I can't be certain about that. 20 Q. As I'm sure you're aware, Mr. Shoebotham is a 21 partner with Ricky Raven? 22 A. Yes. 23 Q. How did you meet Mr. Dillard? 24 A. I really don't remember. It's been a long 25 time ago. And it had to do with a case, but I can't 0007 1 tell you which case it would be. 2 Q. It's my understanding, and correct me if I'm 3 wrong, you've testified on a number of occasions for 4 Mr. Dillard and his law firm of Fulbright & Jaworski; is 5 that correct? 6 A. That is correct. 7 Q. And you've had discussions with him prior to 8 today to discuss what your testimony would be in 9 Mr. Cowey's case, I take it, correct? 10 A. Yes. 11 Q. And Ms. Yates here, have you met her before? 12 A. Yes. 13 Q. How do you know her? 14 A. Again, it would be on another case, and I 15 can't -- I can't tell you which case that might have 16 been. 17 Q. Now, when you get hired as an expert witness, 18 irrespective of what side hires you, do they have to go 19 through the medical school or another organization to 20 hire you? 21 A. No. 22 Q. They call you directly? 23 A. Yes. 24 Q. And I take it that any proceeds that you earn 25 from your expert testimony work goes into your medical 0008 1 practice; is that correct? 2 A. Well, it would go into my pocket, however you 3 want to describe that. 4 Q. Are you part of a partnership of doctors? 5 A. Loosely. We have a group, the Stehlin file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (5 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 6 Oncology Clinic, that consists of a couple of surgeons 7 and a couple of internists, of which I'm one of the 8 internists, and a dermatologist, and we all see patients 9 up here in this setting. 10 Q. Great. It appears to me that you've brought 11 with you all of your file materials regarding Mr. Cowey 12 and issues that you deem important to the disease of 13 myelodysplasia. Would that be a fair statement? 14 A. Yes. 15 Q. (BY MR. LUBEL) I'd like to mark as Exhibit 16 Number 2, the October 13th, 2003 report that your 17 attorneys at Fulbright & Jaworski forwarded me, and ask 18 you if that is a true and correct copy of that report? 19 (Exhibit 2 marked.) 20 A. Yes, that would be a true and correct copy. 21 Q. (BY MR. LUBEL) Now, when you issued the 22 report that we've marked as Exhibit Number 2, did you 23 have some discussions with the lawyers that had hired 24 you about generally what your report should cover? 25 A. Not what my report should cover, no. 0009 1 Q. When they hired you did they ask you or tell 2 you the scope of your work, what issues they wanted you 3 to look at? 4 A. No. 5 Q. How did you know what to do? 6 A. Well, what happens typically on a case of this 7 nature, or any case, whether it's a malpractice case or 8 benzene case, is, I'm asked if I would review a case. 9 And I'm typically asked not to write anything down. And 10 I review the case and then give my opinion to the 11 attorney. 12 And at that point they may ask me to put pen 13 to paper and write a report or they may not. And 14 ultimately, if the case proceeds, I write a report. But 15 that report is simply based on my style of a report. 16 There is no outline sent to me or any specific memo on 17 how that report should be structured. 18 Q. And I didn't mean to imply anything sinister 19 about it. All I -- really what I was driving at is when 20 they called you and said, we want you to be an expert in 21 the case, did they lay out generally what they wanted 22 you to do; in other words, we want you to look at file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (6 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 23 Mr. Cowey's case and see if any chemicals caused his 24 disease? Did they give you any general scope of duties 25 in the case? 0010 1 A. Well, I don't recall the exact conversation, 2 but I would assume it went, we have a patient who 3 alleges he has an illness, a hematologic illness, 4 consequent to chemical exposure, would you look at this 5 case. Something to that effect. 6 Q. So what you do is, is you take and you write a 7 report based upon a complete and thorough review of the 8 case? 9 A. Based on the information that I'm provided. 10 Q. And you don't permit the attorneys, 11 irrespective of who hires you, to limit what you're able 12 to do in the case as far as if they're going to ask you 13 to give any opinions? 14 A. No. 15 Q. Is that true? 16 A. Yes, that's true. 17 Q. All right. So when you wrote Exhibit Number 18 2, your report in this case, you weren't limited by the 19 lawyers that had hired you in what you could say? 20 A. That's correct. 21 Q. Or what authorities you could rely on? 22 A. That's correct. 23 Q. Or what information you could review; is that 24 true? 25 A. That's correct. 0011 1 Q. So would it be fair to say, at least when you 2 issued the report in October of this year, you had laid 3 out in general summary fashion all of your opinions that 4 related to the case as of the date of the report? 5 A. Yes, based upon all of the information that I 6 had at the time, and I recall, for example, in this 7 particular case, I had requested, if available, to 8 review the slides. Generally, if it's a case that has 9 to do with leukemia or myelodysplasia, I like, not that 10 I misbelieve the reports, but I like to simply observe 11 the slides myself, but I didn't receive that, for 12 example. So, sometimes -- so, I go with what I have, 13 and then write a report. file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (7 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 14 Q. All right. So other than the slides, 15 regarding Mr. Cowey, is there anything else that you've 16 requested that you have not received? 17 A. No. 18 Q. Now, do you have any modifications or changes 19 to your report? 20 A. No. 21 Q. Are there any addendums that you've made? 22 A. No. 23 Q. Have your opinions changed in substance? 24 A. No. 25 Q. Have the bases for your opinions changed? 0012 1 A. No. 2 Q. Thank you. 3 MR. LUBEL: Now I'm going to mark as 4 Exhibit Number 3 a June 27th, 2003 report to a 5 Mr. Dougherty that was in your file materials. Do you 6 recognize that? 7 A. Yes. 8 (Exhibit 3 marked.) 9 Q. (BY MR. LUBEL) And essentially, the report 10 that you gave to Mr. Dougherty, in approximately June of 11 2003, has the same opinions as the one that you offered 12 to Mr. Dillard's firm in October of 2003? 13 A. Correct. 14 Q. There may be some minor differences, but the 15 substance is the same, would that be fair? 16 A. That would be fair. 17 Q. Do you agree with the diagnosis of Mr. Cowey 18 that's contained within his medical records? 19 A. Yes. He has myelodysplasia. Now, there are 20 many classifications of myelodysplasia, and in the, 21 what's called the French American British 22 classification, he would be classified as a refractory 23 anemia, or primary refractory anemia, whereas in the 24 World Health Organization classification, which is a 25 little bit newer, he's a refractory anemia with 0013 1 multilinear dysplasia. It's a simple subtle difference 2 of classification. It certainly wouldn't change what he 3 has or his prognosis. 4 Q. Since your report refers to his specific cell file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (8 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 5 type of myelodysplasia as primary refractory anemia, can 6 we just use that term today? 7 A. Yes. 8 Q. And to the extent that I use MDS, as a 9 substitute of trying to pronounce myelodysplastic 10 syndrome, is that okay with you? 11 A. Yes. 12 Q. Can benzene exposures cause primary refractory 13 anemia that Mr. Cowey has? 14 A. Yes. 15 Q. Is it a progressive disease? 16 A. Myelodysplasia is generally considered to be a 17 progressive disease, yes. 18 Q. Is it a permanent disease? 19 A. Well, the only way to reverse the disease 20 completely would be to do a bone marrow transplantation. 21 Aside from that, we have treatments that may modify its 22 course, but it is a progressive disease. 23 Q. And in Mr. Cowey's case, as I understand it 24 from looking at your report, he was not a candidate for 25 bone marrow transplant; is that true? 0014 1 A. Yes, I believe he would not be a candidate. 2 Q. What does it mean by that? 3 A. Well, in order to do a bone marrow transplant, 4 the first hurdle to pass is you have to have a suitable 5 donor. And the best donors, of course, are a brother or 6 a sister match. And someone of his age is not likely to 7 have a brother/sister match that could be a suitable 8 donor. And in order to find a donor, then one would 9 have to go into what's called the unmatched donor pool. 10 And there one might be able to find a donor 11 that matched with him, at least superficially, even 12 though it was an unrelated person, but those transplants 13 are more difficult to carry out and harder on the 14 patient and less successful. So that simply because of 15 his age and the potential -- lack of potential for a 16 donor, I think that makes things difficult. 17 Secondly, and more importantly, his age and 18 underlying heart disease, there are a lot of stresses to 19 go through during a bone marrow transplant. One must 20 receive a lot of immunosuppressant therapy, and be able 21 to sustain serious infections, and it would be rather file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (9 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 22 hazardous for someone of his age to do that. 23 Q. I take it, you're not critical of Mr. Cowey's 24 treating physician for not putting him through that? 25 A. No, I would not think he's a good candidate 0015 1 for that. 2 Q. Do you know Dr. Youman, his treating physician 3 in, Austin? 4 A. I don't think so. I may have met him many 5 years ago. I can't place him. 6 Q. Were you aware that he did some work out at 7 the Mayo Clinic? 8 A. No. But I don't know his background 9 completely. 10 Q. Were you familiar that he worked, at least 11 underneath -- for a short period of time, under a 12 Dr. Wintrobe, that is at least of some reputation in 13 your field of hematology? 14 A. Yes. I met Dr. Wintrobe many years ago, and I 15 know Dr. Wintrobe. 16 Q. And is he in, at least in some regards, 17 considered to be the father of hematology, that 18 subspecialty? 19 A. Yes. 20 Q. I take it, that's one of the books that you 21 have in your library as a resource? 22 A. Yes. 23 (Exhibit 4 marked.) 24 Q. (BY MR. LUBEL) Have you had a chance to look 25 at Dr. Irons' testimony? 0016 1 A. Yes. 2 Q. Have you looked at -- I guess you hadn't seen 3 Dr. Raabe's testimony or looked at his deposition? 4 A. No, I wouldn't have seen his deposition. 5 There is a report, I believe, in here by him, but I have 6 not seen his deposition. 7 Q. Generally, in your work as an expert in these 8 cases, do you look at the other experts' reports and 9 depositions? 10 A. Well, if they're available. Now, commonly I 11 will not have those at my disposal when I write my 12 report. file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (10 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 13 Q. I take it that Mr. Dillard has asked you to 14 attend trial in Beaumont, Texas, correct? 15 A. Yes. He's let me know this case may come to 16 trial, yes. 17 Q. What is your understanding of when that may 18 happen? 19 A. I don't remember the trial date. 20 Q. Do you anticipate between today and the trial 21 day, which I'll represent to you is from the last words 22 we got from the court, as sometime around the 10th of 23 December, do you anticipate looking at the other 24 experts' deposition testimony to the extent that 25 Fulbright & Jaworski sends you that information? 0017 1 A. Yes. 2 Q. Is that generally what you do before you give 3 testimony if it's available? 4 A. Yes. 5 Q. Exhibit 4, can you identify that for us? 6 A. That's a curriculum vitae on myself. 7 Q. That's your resume? 8 A. Yes. 9 Q. Is it current? 10 A. Yes. 11 Q. When was the last time it was updated? 12 A. Oh, I don't know. Probably several months 13 ago. Probably several months ago. But I would say it's 14 reasonably current. 15 Q. Dr. Natelson, what is your opinion as to 16 whether or not, based upon reasonable medical 17 probabilities, the MDS that Mr. Cowey has will 18 ultimately result in his death? 19 A. Well, I would say if he lives long enough, 20 he'll die of the MDS. In other words, when you have an 21 older person who has MDS, they frequently will die with 22 it, not necessarily of it. But it is a progressive 23 disease and frequently is lethal. 24 Q. If Dr. Youman has testified that Mr. Cowey's 25 life-span from his MDS will be between six months and 0018 1 roughly 18 months, do you have any qualms with that? 2 A. Well, it might be a little bit longer, but I 3 have not examined him, and I haven't seen his current file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (11 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 4 blood film or recent bone marrow, and so I wouldn't be 5 in a position to estimate that as accurately as the 6 other oncologist would be. But it's a progressive 7 illness, and it could be as short as six months, yes. 8 Q. And you would agree that Mr. Cowey's treating 9 physician, at least at this point in time, is in the 10 best position to determine what his life-span is based 11 upon his current condition? 12 A. Yes. 13 Q. In the October 2003 report, you identify 13 14 sources of information that you actually cite in your 15 reports; is that correct? 16 A. Let me see. Yes. 17 Q. How did you find those? 18 A. These are all articles that, in some cases, 19 I've had for a number of years. I may have found these 20 through other cases. I may have researched the 21 literature for some of them. In a couple of instances, 22 I subscribe to these journals, such as Blood, and so I 23 would have the article in the normal course of events. 24 Cancer also is one that we subscribe to in this office, 25 and the New England Journal of Medicine. So, in some 0019 1 cases, they're journals that would come across my desk; 2 in other cases, I've looked them up. 3 Q. Do you make any effort to assess whether or 4 not the studies themselves are unbiased? 5 A. I'm not sure what you mean by that. 6 Q. You understand that a lot of these studies you 7 use are what we call epidemiology studies? 8 A. Yes. 9 Q. And bias can impact or influence the validity 10 of those studies? 11 A. Yes. 12 Q. Is that true? 13 A. Yes. 14 Q. And sometimes bias is not just from the face 15 of the study sticking out at you, sticking out like a 16 sore thumb, something you can readily see, would you 17 agree with that? 18 A. That would be true. 19 Q. And I'm just curious as to whether or not you, 20 in your practice as a hematologist and an expert in file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (12 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 21 these chemical exposure cases, undertake any independent 22 effort to see if the studies that you're going to use, 23 you're going to rely upon, are unbiased, or otherwise 24 reliable? 25 A. The answer to that would be no. I accept what 0020 1 is written. Now, it's put in context of other articles 2 on the same subject, and so I may have several articles 3 that address the same issue and I choose to reference 4 one, but I have many others that show the same 5 phenomenon. 6 Q. So would it be fair to say that to the extent 7 that you have an opinion about an area related to 8 hematology, and you place a cite for it, generally 9 speaking, you're not going to give that opinion if there 10 has just been one article on it? 11 A. Well, I think you have to cite a specific 12 case. In other words, if you're talking about an 13 epidemiologic study, we generally would like to have 14 multiple studies that tend to show the same thing. If 15 you're talking about, say, a paper describing a new 16 treatment for an illness that's effective, that single 17 paper may be very useful. 18 Q. But I thought, and I may have misunderstood 19 you, the proposition that you were given was, generally 20 speaking, you may only site one article with respect to 21 a proposition; however, you generally have more than one 22 article on that opinion? 23 A. Yes, that would be true. 24 Q. And would it be a fair statement that at least 25 with regard to the 13 specific studies that you 0021 1 reference, that you've cited, in your October 2003 2 report, that you believe those to contain reliable 3 information? 4 A. Yes. 5 Q. You have no reason to think otherwise? 6 A. I have no reason to think otherwise. 7 Q. And many times do you recognize the names of 8 the authors because that's not the only study they've 9 authored? 10 A. Yes. 11 Q. And over time do sometimes these authors start file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (13 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 12 to develop either a good or a bad reputation in their 13 field? 14 A. Well, I'm not sure I can really answer that 15 question accurately. Some of the names become very 16 familiar. 17 Q. Let me ask you this, at least with respect to 18 the authors that are listed in the 13 references that 19 you have in your report, would it be fair to say that 20 they've either got good reputations in your mind, or 21 you're not aware of their reputation, but have no reason 22 to doubt what they have to say? 23 A. Yes, that would be a reasonable statement. 24 Q. In other words, you know who Dr. Wong is, 25 don't you? 0022 1 A. I've never met him, but I know who he is. 2 Q. And you understand that he's an expert that is 3 frequently hired by the defense? 4 A. Yes. 5 Q. And, in fact, he writes a lot of defense 6 slanted articles? 7 MR. DILLARD: Object to the form. 8 MS. YATES: Same objection. 9 A. He writes frequently on benzene exposures and 10 consequences thereof, and epidemiologic articles, yes. 11 Q. (BY MR. LUBEL) Were you aware that Dr. Wong's 12 work has been funded by industry? 13 A. I've been told that numerous times. I haven't 14 verified that. I have no reason to doubt it. 15 Q. Did Mr. Dillard or Mrs. Yates or any of the 16 lawyers at their respective law firms, did they tell you 17 that the studies that industry was running over in China 18 right now that Dr. Irons was working on, that they were 19 funded by industry, and that the main goal of those 20 studies was to effect regulations, number one, and 21 number two, lawsuits that they were in? 22 MR. DILLARD: Object to the form. 23 MS. YATES: Same objection. 24 A. I was told none of those things. 25 Q. (BY MR. LUBEL) Well, to the extent that the 0023 1 studies that Dr. Irons and others are working on in 2 China, that are being funded in whole or in part by file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (14 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 3 industry, to the extent that, in fact, the purpose of 4 those studies is to help defend them in lawsuits, and to 5 effect regulations on their behalf to their benefit, in 6 the United States, would you with agree those studies 7 would not be unbiased? 8 MR. DILLARD: Object to the form. 9 MS. YATES: Objection, form. 10 A. Not necessarily. In other words, if these 11 gentlemen are there to assess accuracy of data and to 12 simply ensure a flow of good data, and an accurate 13 interpretation of that data, that might not necessarily 14 be biased toward one side or the other. 15 Q. (BY MR. LUBEL) But how can it be an accurate 16 flow of reliable data if, in fact, their goal is to 17 benefit them in lawsuits and to help them in regulatory 18 matters? 19 MR. DILLARD: Object to the form. 20 A. Well, I don't know what their goal is. In 21 other words, you're telling me that that's their goal. 22 But it depends on who these gentlemen are and what their 23 credentials are and what they hope to find there. And 24 the fact that they're sponsored by a particular 25 organization doesn't mean that they're going to alter 0024 1 their data to suit that organization. 2 Q. But does it make a difference in your mind if 3 the purpose of the studies, irrespective of who sponsors 4 it, the purpose of it, is to help industry in their 5 lawsuits, would you agree that that would make a study 6 biased? 7 MR. DILLARD: Object to the form. 8 MS. YATES: Object to the form. 9 A. Not necessarily. 10 If I could give just a simple example, many of 11 our drug studies that we see today on new agents, in 12 fact, an agent that this patient, Mr. Cowey, received, 13 those studies are funded by industry. And they're 14 looking for data. 15 Q. (BY MR. LUBEL) Funded by industry to protect 16 them in lawsuits? 17 A. No, but to promote a product. 18 Q. Tell me about studies that you're aware of 19 that you believe are legitimate where the purpose of the file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (15 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 20 study is to protect industry from lawsuits. 21 MR. DILLARD: Object to the form. 22 A. I don't know of any such studies. 23 Q. (BY MR. LUBEL) Tell me of any studies that 24 you're aware of that are legitimate that you would rely 25 upon where the purpose of the study was to lower what's 0025 1 permissible for benzene exposures as to make regulations 2 less burdensome on industry? 3 MR. DILLARD: Object to the form. 4 A. Again, I don't know of any such studies 5 designed with that intent in mind. 6 Q. (BY MR. LUBEL) Have you ever relied on any 7 such studies? 8 A. Not that I'm aware of. 9 Q. If you would, if you would look at the 10 citation or the reference list that you have in your 11 October report and just tell me the authors that you're 12 familiar with. 13 A. Well -14 Q. By name. 15 A. By name. The first reference is Dr. Carl Aul, 16 who has written many articles over the last several 17 years on myelodysplasia, and I've not met him, but I 18 recognize his name. 19 The next article, the first author is Heaney, 20 I don't think I know him. I may -- if we look at the 21 paper, there may be other authors whose name I 22 recognize, but his was a review article from the New 23 England Journal of Medicine on myelodysplasia. 24 The next one, I don't know that person either. 25 That was simply a compilation of leukemia statistics in 0026 1 the United States that was published in the Journal of 2 Cancer. 3 The next one, Maes, I don't know that doctor 4 personally. 5 The next, Williams, I don't know that person. 6 But the second author on that has published previously 7 on the Pliofilm cohort, Paustenbach, or something of 8 that nature. 9 Smith has published articles before on 10 therapy-induced leukemia, I recognize that name. file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (16 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 11 Finkelstein, I don't know. 12 Hayes is a person who has published several 13 articles on statistical analysis, particularly of 14 benzene-related studies in China. 15 Q. What type of reputation does -- is it a man or 16 a woman, Hayes? 17 A. I believe he's a man. 18 Q. What type of reputation does he have in that 19 field? 20 A. I don't know anything bad or good about his 21 reputation. 22 Van Leeuwen, this is a person I don't know. 23 He wrote a nice treatise on secondary leukemias and 24 myelodysplasia. 25 Dr. Wong, as I say, I've never met. I've 0027 1 certainly seen many of his papers that have to do with 2 epidemiologic studies, disease causation. 3 Dr. Pedersen-Bjergaard is well published in 4 the field of genetic defects consequent to chemotherapy 5 drugs and therapy-related leukemia and myelodysplasia. 6 The same would be true of the next author, 7 Mauritzson, has published a number of articles in this 8 field. 9 Smith is from the University of Chicago group, 10 I have listened to lectures by some in that group. I 11 don't place this particular doctor. 12 Q. The Hayes study that you referred to, that's a 13 study out of China, correct? 14 A. Yes. 15 Q. Have you seen his study in the year 2000? 16 MR. DILLARD: Object to form. 17 MS. YATES: Same objection. 18 A. You have to point at which study are we 19 talking about. 20 Q. (BY MR. LUBEL) Hayes and Yin and others 21 published a study, in the year 2000, kind of an update 22 of the Chinese work, and I was wondering if you have 23 seen that. 24 A. I don't recall that specific article. I may 25 have it in my files, but I don't recall it. 0028 1 Q. To the extent that one of the conclusions that file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (17 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 2 that group reached -- and I take it, that you understand 3 that the two groups that did the work that Hayes was 4 involved with in China were the National Cancer 5 Institute and the equivalent organization in China, were 6 you aware of that? 7 A. Yes. 8 Q. To the extent that one of the conclusions that 9 they reached in the updated 2000 study was that there 10 was a relative risk of three for benzene exposures less 11 than 10 parts per million leading to or linked to MDS, 12 do you have any qualms with that, as you sit here, 13 without seeing the study? 14 A. Well, I don't -- if you say that's what they 15 found, that's what they claim. I know that there is 16 great dispute about what the levels of exposure were 17 during the Chinese study. 18 Q. I understand. But were you aware that they 19 had -- in the 2000 study, they had actually gone back 20 and gotten better exposure data? 21 A. I don't know that they got better data, but 22 they -- there remains dispute about benzene exposures in 23 China. 24 Q. Is that something that you have studied with 25 any particularity or focus? 0029 1 A. Well, I've been in China for a couple of 2 weeks, and I can understand some of the problems there 3 from what I saw and the difficulty in obtaining good 4 data, but -- and I can understand why in some of the 5 articles -- before I went to China, I couldn't really 6 understand why some of the articles would say to get 7 follow-up on the patients, we asked their neighbors or 8 checked down at the local police station, and I thought 9 to myself, that's very bizarre, why would they say that. 10 And now having been to China for a couple of weeks, I 11 know why they would say that. 12 Q. Why is that? 13 A. Well, because their society is so utterly 14 different from ours, and their factories, their 15 universities are not on par with ours, by many orders of 16 magnitude. And I can understand why data would be 17 difficult to accurately estimate from recordkeeping. 18 Q. But without seeing the 2000 study, you don't file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (18 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 19 know whether you have any disagreements with it or not, 20 correct? 21 MR. DILLARD: Object to the form. 22 A. Well, I wouldn't be able to, of my knowledge, 23 know whether their estimates are correct or incorrect, 24 in other words. 25 Q. (BY MR. LUBEL) Well, I mean, generally 0030 1 speaking, without you having the 2000 study, and having 2 time to review it, and then you and I sit and visit and 3 have a conversation about it, at this point, since you 4 hadn't done that, you can't say whether you have any 5 problems with that study or not? 6 MR. DILLARD: Object to the form. 7 A. Well, I can't comment about the study in 8 detail because I haven't seen it. Or if I have seen it, 9 I don't recall what it said. 10 Q. (BY MR. LUBEL) Fair enough. What independent 11 efforts have you made to assess the conclusions in the 12 pre2000 Chinese studies? 13 A. Well, in the pre2000 studies, there have been 14 several, you might say, rebuttal reports from different 15 people. Dr. Wong has written one. There is another one 16 from a fellow named Budinsky. There is a third one, 17 also by Wong, more recently, about those studies. And, 18 of course, there is mention of those studies in some of 19 the articles from OSHA and regulatory bodies that I have 20 here are commenting about those studies. 21 Q. What do they say about that? 22 A. Well, they simply say that those studies -23 I'm paraphrasing what they say -- that the relative 24 risks for benzene exposure and leukemia must go back to 25 the Pliofilm study because of discrepancies in these 0031 1 particular studies in China. 2 Q. Do you have that information here? Is it the 3 I R I S? 4 A. That's one report that says that, yes. 5 Q. Is there anything else that you've got? 6 A. Actually, you've got it right there. This 7 report. 8 Q. Sorry about that. 9 A. Yes. This report here, which is from the file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (19 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 10 National Center for Environmental Assessment. 11 (Exhibit 5 and 6 marked.) 12 Q. (BY MR. LUBEL) If you would, I'm just going 13 to go ahead and hand you, and we'll just go off the 14 record for a minute, Exhibit Number 5 and 6, which are 15 both of the documents you just referred to, and if you 16 can just open these reports to the sections that you're 17 talking about. 18 A. Thanks. 19 (A break was taken from 2:45 to 2:46.) 20 Q. (BY MR. LUBEL) If you could just reference 21 the exhibit number as you're talking about it as you do 22 it. 23 A. All right. The first one is, Carcinogenic 24 Effects of Benzene, an Update, and this is from the 25 National Center for Environmental Assessment, and it was 0032 1 written in 1998. 2 Q. Is that Exhibit 6? 3 A. Yes. This is by Bayliss, I believe, is the 4 lead author. And talking about the Chinese studies, 5 "the second potential problem was the development of 6 exposure estimates for the 74,282 workers, during the 7 earliest period, only three percent of the exposure 8 estimates were based on actual measurements." 9 And the sum and substance of what's in this 10 article is that the reference study for consequences of 11 benzene exposure in leukemia, as they put it, hence the 12 Pliofilm workers are the preferred population for 13 estimating the effects for exposure to benzene. 14 Q. What's the date of that article? 15 A. This is 1998. 16 Q. So that would have been before the 2000 Hayes 17 study, correct? 18 MR. DILLARD: Object to form. 19 MS. YATES: Form. 20 A. Yes. This is written in 1998. And we called 21 Mr. Bayliss to see if there was a more recent update of 22 this, several months ago, and he said no. 23 Q. (BY MR. LUBEL) Great. And you've shared with 24 us your comments about that particular article, Exhibit 25 6, as they relate to this case? 0033 file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (20 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 1 A. I don't know. I -- let's see if I referenced 2 that. 3 Q. It may not have been on your reference list. 4 A. I don't believe it's on my reference list. 5 Q. Well, then, have you at least shared with me 6 your comments with regard to the questions I asked you 7 about the Chinese exposure levels, that are referenced 8 in Exhibit 6? 9 A. Yes, to the extent that they're discussed in 10 there. 11 Then -12 Q. Just for the record, you're looking at Exhibit 13 Number 5 right now, correct, Dr. Natelson? 14 A. That's correct. And from this article, on 15 page 10 of 16, the Pliofilm workers study provides the 16 best published set of data to date for evaluating human 17 cancer risks from exposure to benzene. 18 Although the ongoing Chinese cohort studies 19 perhaps may provide information in the future to better 20 characterize risk of cancer at low dose exposure, their 21 use in the derivation of risk estimates remains 22 problematic at present for the reasons cited in section 23 2, A2. 24 So, essentially, these two articles are 25 telling us the same thing, that we need to rely on the 0034 1 Pliofilm cohort of workers for assessment of risk 2 concerning benzene and leukemia. 3 Q. Now, this was last revised, at least according 4 to the document, Exhibit 5, on January 19th of 2000. 5 Did you see that? 6 A. I don't recall the date on it. Yes. 7 Q. So, it wouldn't appear that if the updated 8 Hayes article, in 2000, was released after that date, 9 whether they had the opportunity to review the updated 10 information? 11 A. I don't know that they did. 12 Q. What caused Mr. Cowey's MDS? 13 A. Well, I think that as in most cases of MDS, 14 the cause would be unknown. 15 Q. Have you considered the generally accepted 16 known risk factors of MDS as the potential cause of his 17 disease? file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (21 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 18 A. Yes. 19 Q. And what are the generally accepted known risk 20 factors for his disease? 21 A. Well, the primary risk factor would simply be 22 age. We know that the incidents of both acute leukemia 23 and acute myeloid leukemia and myelodysplasia goes up 24 strikingly with age, and so that the vast majority of 25 patients you see with these diseases are older than 60, 0035 1 frequently older than 70. 2 Q. Were there any other risk factors? 3 A. Well, certainly risk factors are prior 4 chemotherapy or, let's say, chemical treatments, 5 chemical-related treatments, or radiation, may 6 predispose to these illnesses. 7 Q. Are you aware that benzene exposure was 8 considered a risk factor for MDS? 9 A. Yes. 10 Q. And is that generally accepted within the 11 knowledgeable scientific and medical community? 12 A. Yes. 13 Q. That's textbook medicine, correct? 14 A. It's commonly thought to be the case. 15 Q. What I mean by textbook medicine is, is that 16 we're not talking about just one article that somebody 17 publishes somewhere that says we think benzene causes 18 MDS, it's gotten past that stage to where there is 19 multiple articles that lend credence to it that allows 20 for textbooks to put it in there, correct? 21 A. Well, we have general acceptance that benzene 22 causes acute myeloid leukemia. And many textbooks point 23 that out. 24 Now, myelodysplasia, that term, is a 25 relatively new term. But in general, we believe that 0036 1 anything that causes AML can cause myelodysplasia. 2 So, by inference, even if you couldn't find an 3 article that said benzene causes myelodysplasia, if we 4 say, benzene causes acute myeloid leukemia, it tells us 5 it can cause myelodysplasia. 6 Q. And is that an appropriate way to look at it 7 from a scientific and medical standpoint? 8 A. I think so. file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (22 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 9 Q. And is it, likewise, appropriate for 10 scientists and medical people, such as yourself, to 11 consider the literature that's been written on acute 12 myeloid leukemia in order to assess MDS? 13 A. Yes. 14 Q. What other names has MDS gone by? 15 A. Well, for many years we simply used the term 16 called preleukemia for certain of the myelodysplasia 17 syndromes. 18 Now, other illnesses -- myelodysplasia 19 encompasses several different syndromes. And we knew 20 some of those syndromes by different names; for example, 21 idiopathic sideroblastic anemia, or refractory 22 sideroblastic anemia, is a classification of 23 myelodysplasia, but that has been a stand-alone disease 24 for many years and has its own ICD-9 Code. 25 Chronic myelocytic leukemia, again had been 0037 1 known for many years, has its own ICD-9 Code as a 2 stand-alone disease. Those two particular diseases were 3 lumped under the general category of myelodysplasia, I 4 would guess probably around 1982, and into the 5 classification system. 6 But prior to that, we used a simple term, 7 preleukemia, to describe an illness like Mr. Cowey's. 8 Q. In order for you to link up a person's MDS to 9 benzene exposure, what evidence must you have? 10 A. Well, we -- it's my belief, and I believe well 11 substantiated by the literature, that what we call 12 chemical-related leukemia, or secondary leukemia, is 13 what benzene is. 14 In other words, benzene is an obsolete 15 chemotherapy drug, and its mechanisms -- potential 16 mechanisms leukemogenesis are identical to our modern 17 chemotherapy drugs. So what we say for modern 18 chemotherapy agents should go for benzene. 19 Now, there is a big difference between modern 20 literature and benzene literature. In the case of 21 benzene literature, the problem is you have a handful of 22 cases and often very poor data on exposure. 23 In the case of therapy-related leukemia and 24 myelodysplasia, we have exquisite data. If a person 25 didn't smell something bad, he got injected with a gram file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (23 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 0038 1 of chemical IV, so we know exactly what they got and 2 when they got it. 3 We also, because we commonly keep statistics 4 on cancer patients, if they were to develop a secondary 5 leukemia, or myelodysplasia, we know exactly what the 6 latency period would be, and whether it differs for 7 different chemotherapy drugs. And we also know what 8 type of leukemia or myelodysplasia occurs following 9 chemotherapy. We also know the results of treatment and 10 life-span in people in those circumstances. 11 So, some of the articles I have here relate to 12 that, so we can say that there are certain features of 13 chemotherapy-induced leukemia. And those features might 14 be that intensity of dose is very, very important. That 15 a trivial exposure is not likely to cause an illness, it 16 needs to be of a large magnitude. And exposures that 17 are extremely large magnitude may accelerate that latent 18 phase, and so you may get AMLs developing fairly early 19 in people who get, let's say, industrial strength 20 chemotherapy, as we use for bone marrow transplantation 21 and other treatments. 22 We also know that certain types of leukemia 23 have different chromosome patterns, and so certain types 24 of therapy-related leukemia occur very early on to the 25 final chemical exposure. 0039 1 But in general, what we know is, that one 2 needs a very large exposure, that the illness that one 3 gets is acute myeloid leukemia and its associate of 4 myelodysplasia being one of them. That the latency 5 period after that can be as short as a year, but 6 generally, most people feel averages out about five 7 years, and that typically comes back to baseline about 8 10 to 12 years after the last exposure. So that the 9 latency period is very well defined for 10 chemotherapy-induced leukemia. 11 We also know that there are very 12 characteristic chromosome changes in therapy-induced 13 leukemia. For example, the common ones that are seen 14 are abnormalities of chromosomes five and seven, and in 15 most series, what you find is that in a therapy-related 16 leukemia setting, 70 to 75 percent of the patients that file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (24 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 17 have chromosome abnormalities will have them of 18 chromosomes five and seven. It's certainly not 19 exclusive to those chromosomes, but that is a very 20 common pattern. 21 We also would say that now that we know what 22 therapy-related leukemia is, and how it's defined by 23 thousands of cases, we can now go back and take the few 24 benzene cases we have and see if it fits into that 25 paradigm. And it does very nicely, because, for 0040 1 example, in the Hayes articles, he says that all his 2 cases of leukemia and myelodysplasia occurred in the 3 first 10 years from the last exposure. That fits 4 exactly with what we know from our benzene exposure. 5 And so what that tells me, for example, is if 6 I find a patient, for example, and they have had 7 chemotherapy 30 years ago, and now they catch leukemia, 8 it's not very likely that that leukemia is from that 9 chemotherapy because the latency period is wrong. 10 If we look at chromosome data, there are 11 certain chromosome abnormalities that can't prove 12 therapy-related disease, but are very suggestive of it. 13 On the other hand, there are certain 14 chromosome abnormalities that are much more suggestive 15 or de novo for off-the-street leukemia and 16 myelodysplasia. 17 And so by looking at the intensity of the 18 exposure to the alleged chemical, by looking at the type 19 of illness, what kind of leukemia are we talking about, 20 or myelodysplasia are we talking about, what latency 21 period we have, what chromosome abnormalities we have, 22 when we put all of that together, I think we can make a 23 good estimation as to whether or not it's reasonable or 24 likely to consider this a therapy-related leukemia or 25 unreasonable to consider it a therapy-related leukemia. 0041 1 Q. In order for you to link a person's benzene 2 exposure, assuming it was high enough, to acute 3 leukemia, or MDS, do you require that they have 4 chromosome abnormalities at five and/or seven? 5 A. No. 6 Q. Why not? 7 A. Because of the fact that we know that you can file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (25 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 8 see people with de novo leukemia, who have never had any 9 association with chemicals, have a five and seven 10 abnormality. So having a five and seven abnormality 11 doesn't prove therapy related, it just simply makes it 12 more likely. 13 Q. And the reason, I take it, that you think it's 14 more likely is because you see more of those chromosome 15 abnormalities in the exposed people that have the 16 disease? 17 A. Correct. 18 Q. But there is no study that you're aware of 19 that concludes that in order for a person to have a 20 benzene-induced MDS, they must have those chromosome 21 abnormalities? 22 A. No. We generally say that if we're looking at 23 leukemia that's de novo, let's say, off-the-street 24 leukemia, probably as many as 40 percent have no 25 chromosome abnormalities at all, yet they have leukemia. 0042 1 We generally think that if a person has therapy-related 2 leukemia, or myelodysplasia, that actually almost all of 3 them will have a chromosome abnormality, probably 4 upwards of 90 percent. 5 So that usually if it's therapy related, there 6 is a chromosome defect, and the common ones that are 7 seen are five and seven, but that's not exclusive. 8 Q. How much exposure is necessary for a person to 9 have in order for you to link their benzene exposures to 10 the disease MDS? 11 A. Well, I would have to consider it to be 12 similar to what we see for acute myeloid leukemia. And 13 it's generally claimed that the cumulative part per 14 million exposure is most closely related to the 15 development of AML. And there is argument about how 16 much that cumulative exposure is, but most people say at 17 least 100 to 200 part per million years exposure. Some 18 would say higher. 19 Q. And where do you fall within that exposure 20 debate? 21 A. I would say at least a hundred part per 22 million years. 23 Q. Now we've talked about exposure, we've talked 24 about the chromosome issue, and I believe you told me file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (26 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 25 earlier that his cell type of MDS was consistent with 0043 1 benzene exposure, correct? 2 MR. DILLARD: Object to the form. 3 A. Yes. 4 Q. (BY MR. LUBEL) You mentioned treatment. Does 5 that play a part? I was kind of making a list as you 6 were going through. 7 A. Oh, I see. How do you -- you mean treatment 8 for the myelodysplasia? 9 Q. As far as -10 A. I think I understand what you're referring to. 11 Generally speaking, what we say is that if we have a 12 leukemia, an AML, there are certain things that let us 13 know that this leukemia might be very responsive to 14 treatment. One of them would be to not have any 15 chromosome abnormality. And we certainly see that in de 16 novo leukemia. That's a good prognostic sign. 17 On the other hand, if we know that the 18 leukemia is therapy related, and, for example, we saw a 19 a five and seven chromosome abnormality, that would tell 20 us the prognosis is terrible. 21 And the same chemotherapy that might cure 22 someone with an absent chromosomal abnormality will very 23 likely fail in someone who's got therapy-related 24 leukemia. It's considered to be a worse disease. 25 Q. Do you agree with Dr. Youman when he said -0044 1 and I know you haven't been furnished his testimony, but 2 assume with me he said that Mr. Cowey's chromosome 3 abnormality of Trisomy 8 was consistent with benzene 4 exposure? 5 A. Well, it isn't the classical one for benzene 6 exposure -- actually, I have read his deposition. 7 Q. Oh, okay. 8 A. And I'm aware of what he said. And what I can 9 say is that if you look at patients with therapy-related 10 myelodysplasia, there are reports of Trisomy 8 among 11 such patients. 12 So it is not unheard of for a person with 13 therapy-related myelodysplasia to have Trisomy 8, but it 14 is not the typical chromosome abnormality for that 15 group. file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (27 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 16 Q. Do you know what percentage of the 17 therapy-related AMLs or MDSs have Trisomy 8 abnormality? 18 A. Yes, it's in one of these articles. 19 Q. Can you find that for us, please? 20 A. The best article would be the Mauritzson 21 article. There are really two articles that I have here 22 that bear on that. The first is the -- are these two 23 articles. The first is the Smith study from the 24 University of Chicago, and these are 306 patients with 25 therapy-related myelodysplasia and AML. And of this 0045 1 group none have Trisomy 8. 2 Now, the second one by Mauritzson is a much 3 larger study, it has to do with 5,098 patients. In this 4 article, specifically under myelodysplasia, what they 5 find is that in off-the-street myelodysplasia, de novo 6 myelodysplasia, they had a 13 percent incidence of 7 Trisomy 8, and in therapy-induced myelodysplasia, they 8 had a two percent incidence of Trisomy 8. 9 So that Trisomy 8 was, as they put it in their 10 abstract, abnormalities significantly more common in de 11 novo disease were Trisomy 8 as a sole abnormality. But 12 that's from their table. 13 Q. (BY MR. LUBEL) I'm going to ask the court 14 reporter to make copies of these and make them Exhibit 7 15 and return them to you today. Is that okay? 16 A. Fine. 17 MR. LUBEL: We'll mark both of those 18 articles as Exhibit Number 7. 19 MR. DILLARD: Why don't you hold off and 20 get him to mark one so that we're not marking on his 21 original. 22 (Discussion held off the record.) 23 (Exhibit 7 marked.) 24 Q. (BY MR. LUBEL) Are both the studies that you 25 just referenced for us and we're going to mark as 0046 1 Exhibit 7, are they listed in your references? 2 A. Yes. 3 Q. Are those articles that you've used before? 4 A. Yes. 5 Q. You didn't find them specifically for this 6 case? file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (28 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 7 A. No. Neither one of those are specific to this 8 case. 9 Q. Did any of the literature that you've 10 referenced in your report require you, for this case, to 11 go seek more information, or did you have it from 12 previous cases? 13 A. I had it from previous cases, and also from my 14 general files. In other words, I have a large file on 15 myelodysplasia with many articles that have not been 16 used in any particular action. 17 Q. Now, I've had a chance to read your testimony 18 in the Ward case. 19 A. Yes. 20 Q. That you gave to -- Mr. Hyde took your 21 deposition? 22 A. Yes. 23 Q. And I know from that case that you do not 24 believe that all cell types of MDS are causally related 25 to benzene. 0047 1 A. That's true. 2 Q. Do it either way, you can tell us the ones 3 that you think that are or the ones that aren't, 4 whichever is shorter. 5 A. Well, it's easier, I think, to do it, to say 6 the ones that I don't think, because it's primarily the 7 one illness we call idiopathic sideroblastic anemia, or 8 refractory anemia with ring sideroblasts. And that's an 9 illness that's been well studied for many, many years 10 and has never been related to benzene exposure. 11 And in the Hayes study, for example, of the 12 74,000 people, none of those patients had refractory 13 anemia with ring sideroblasts. And as I said in 14 questioning, in selecting out large numbers of people 15 with refractory sideroblastic anemia, and querying them 16 as to whether or not they've had any benzene exposure, 17 the answer is no. 18 So there would be no reason, no epidemiologic 19 study, nothing to suggest that that particular illness 20 is benzene related. 21 Q. As you sit here today, would it be fair to say 22 that that particular cell type, at least at this point 23 in time, is the only one that you're willing to come out file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (29 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 24 and say is not causally related to benzene? 25 A. Yes. 0048 1 Q. Based on current information? 2 A. Based on current information, yes. 3 MR. LUBEL: Do you mind if we take about 4 a three-minute break? 5 THE WITNESS: No. 6 MR. LUBEL: I'm almost done. 7 (A break was taken from 3:12 to 3:17.) 8 Q. (BY MR. LUBEL) What does the term "latency 9 period" mean? 10 A. Well, latency period would be, in the case of 11 AML, or myelodysplasia, a period between which a 12 chemical produces some sort of damage in the organism, 13 or in this case, DNA, and the time at which the 14 consequences of that become evident, usually in the 15 range of low blood counts or anemia or something of that 16 nature. 17 Q. Why is it when people have cancer there is 18 generally a number of years between the time that the 19 damage was done and the consequences are noticed? 20 MR. DILLARD: Object to the form. 21 MS. YATES: Form. 22 A. There are many theories on that, but one 23 thought is that damage begets damage, and what may 24 happen is that an event occurs, such that a chromosome 25 is damaged. The body has tremendous reparative 0049 1 mechanisms to try to fix that, but sometimes it's not 2 fixed, and the defect is carried over from cell division 3 to cell division to cell division, and eventually the 4 defect may cause a second defect to occur, and then a 5 third, and finally, you have enough of a problem where 6 it becomes evident in the cell counts, and that may take 7 a certain amount of time. 8 And that's probably the reason that we have a 9 window of latency, because, in other words, it's like -10 it's as though the body has a certain period of time to 11 fix something, and if it doesn't get it fixed, something 12 bad is going to happen. And if it goes through such a 13 long period of time, in some instances, it's too late 14 for the bad thing to happen. The body has finally fixed file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (30 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 15 it. 16 And so I think that's why in the case of acute 17 leukemia, we have a window why we don't have leukemia 18 just occurring randomly after these exposures to 19 chemicals. 20 Q. At what point in time do you start to 21 calculate the beginning point of a latency period? 22 A. Well, I generally calculate that from the last 23 chemical exposure. 24 Q. Is there a study or textbook that tells you 25 that that's the way you calculate it? 0050 1 A. No, I don't think I've seen that. But the 2 reason that that's done is because most of the time with 3 cancer chemotherapy, we're talking about an onset of 4 treatment and a completion of treatment that are not too 5 far distant from each other. In other words, we don't 6 often give people chemotherapy day after day, year after 7 year. We give it for a finite period of time. So if 8 you looked at the first exposure and you looked at the 9 last exposure, it wouldn't be a vast difference, in 10 terms of latency. 11 And so, generally, most of the authors will 12 calculate it from when the treatment was completed to 13 the time the illness appeared. 14 Q. So most people calculate it from the last day 15 of the chemical exposure as opposed to the first day, 16 would that be a fair statement? 17 A. I think that's true. 18 Q. But when you look at chemotherapy treatments 19 by and large, it doesn't make a difference what study 20 you use? 21 A. Because of the fact that within reason, they 22 are -- they are spaced close together. Now, in some 23 instances, what you'll find is a person will be treated, 24 few years will go by, and they relapse, now get a second 25 set of treatment, and so there, there is a big disparity 0051 1 between the first treatment and the last treatment. But 2 most will take the last treatment as the point in time. 3 Q. What is the range of latency periods for AML? 4 A. We generally say, and many of these articles 5 bear on that, and comment on that, we generally say that file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (31 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 6 it is -- the upper limits are 10 to 12 years. 7 Q. The upper limits? 8 A. Yeah. In other words, that most leukemias 9 occurring from secondary causes occur from, let's say, 10 year three to year seven, and under certain 11 circumstances, they could occur as early as year one, or 12 might occur as late as year 10 to 12. 13 Q. What affects that, whether it happens in year 14 one or year 10 or 12? 15 A. In some instances, it's the intensity of the 16 treatment. It appears as though you may get leukemia 17 earlier with very intensive regimens. 18 Q. You're talking about chemotherapy treatment? 19 A. Yes. I'm talking about chemotherapy 20 treatment. 21 Q. Let's digress for a minute and talk about 22 benzene exposures. Do any of your articles tell us what 23 the outer limits are for benzene exposures outside of 24 the chemotherapy arena? 25 A. Yes. In other words, the Hayes articles, as I 0052 1 mentioned, says that. If we could find that article. 2 He says, the temporal pattern of benzene exposure 3 appears to be important in determining the risk of 4 developing a specific disease. And then he says that, 5 in our study, ANLL/MDS was linked to recent benzene 6 exposure, and additional distant exposure did not appear 7 to further increase risk. This finding suggests that 8 recent benzene exposure is predictive of substantive 9 risks for ANLL/MDS analogous to the short latency and 10 wave-like increase, then decrease in risks seen for 11 several forms of radiation-induced leukemia and for 12 chemotherapy-related AML. 13 In other words, as I read this, he is saying 14 that benzene is exactly identical to what we see for 15 therapy-related leukemia. 16 Q. When was Mr. Cowey's last exposure? 17 A. Well -18 Q. Or do we know? 19 A. I don't think we know that. Now, he alleges 20 the use of Liquid Wrench, and having seen many experts 21 describe Liquid Wrench, it is my understanding that 22 after 1978, it did not contain benzene. And so one file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (32 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 23 would say that were he using Liquid Wrench, and did it 24 contain benzene at the time he was using it, the last 25 potential exposure would have been around 1978. 0053 1 Q. To that product? 2 A. To that particular product, yes. 3 Q. But to the extent that he had exposures to 4 benzene in other products, that wouldn't surprise you, 5 would it? 6 A. I don't know what his other exposures were, 7 really. I've read his deposition. But I don't know 8 what the -- what his potential would be for other 9 benzene exposures in products. He talked about doing 10 house painting and a number of other projects. 11 Q. You recognize that there is benzene, albeit in 12 small amounts, in paints and paint thinners and things 13 of that nature? 14 A. Yes. Benzene would be a contaminant in many 15 solvents. 16 Q. It's even in gasoline? 17 A. Yes, it is in gasoline. 18 Q. So, it wouldn't surprise you if he had other 19 exposures after 1978? 20 A. No, it would not. 21 Q. And are you prepared at this point in time to 22 say when you believe Mr. Cowey's latency period should 23 start to run for calculation purposes? 24 MR. DILLARD: Object to the form. 25 MS. YATES: Form. 0054 1 A. Well, I basically have his deposition to go on 2 as to what he did. And of the materials he mentions, 3 the only one that would have a potential for substantial 4 amount of benzene in it would be the Liquid Wrench. 5 In other words, that is a compound that might 6 have as much as five percent benzene in it, whereas you 7 certainly wouldn't find five percent benzene in house 8 paint, or anything close to that. 9 So that if I looked at what did he use that 10 had the potential for, from his description, significant 11 benzene, that would be the most prominent compound. 12 Q. But I thought benzene was a cumulative 13 disease? Benzene exposure causes a cumulative disease? file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (33 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 14 A. Benzene is cumulative, yes. 15 Q. So, each and every exposure can contribute to 16 the disease process? 17 A. Ah, I see what you're driving at. Yes, that 18 is correct. 19 Q. So, to the extent that he had exposures 20 pre'78, and then he continued to have some exposures 21 post'78, although, in your opinion, less significant, or 22 smaller, they would still -- his last exposure in time 23 for latency purposes would still be after 1978, would 24 they not? 25 A. Well, I don't know when his last exposure 0055 1 would have been. 2 Q. That's fair enough. 3 Now, have you read Dr. Irons' testimony? 4 A. Yes. 5 Q. He says in here that he believes that the 6 outside time limit for the latency period is 15 years. 7 Do you remember seeing that? 8 A. Yes. 9 Q. In terms of quantitative numbers. And then I 10 asked him could he pull the peer reviewed studies that 11 state that opinion, in order for a malignancy to be 12 related to benzene, the malignancy must manifest itself 13 within 15 years of last exposure, and he said there was 14 no literature that specifically was going to say that. 15 Do you agree with that statement? 16 A. I'm not aware of such literature other than 17 comments such as we see in the Hayes article, for 18 example. 19 Q. You're not saying that the Hayes article 20 stands for the conclusion that for a person to have a 21 benzene-induced malignancy, such as AML or MDS, that it 22 must manifest itself within 10 years of the last date of 23 exposure, are you? 24 A. Not within 10 years, no. I think it could be 25 a little longer than that. In other words, if you had 0056 1 exposure to benzene, and it was of the magnitude to 2 cause leukemia, and then that exposure ceased, you might 3 go 10 to 12 years before you caught the leukemia. But I 4 don't think much longer than that, based on what we know file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (34 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 5 from chemotherapy data. 6 Q. And it's your opinion that the reason there is 7 a range between one year to 10 to 12 years, or whatever 8 it is, that, generally speaking, that range seems to be 9 dependent upon the size of the exposures, or I believe 10 you said intensity? 11 A. Well, that is one factor. It's the intensity 12 of the exposure. In some cases, with chemotherapy, it's 13 the specific drug used. Certain drugs tend to promote 14 the leukemia to occur earlier than others. The 15 concomitant use of radiation therapy. There would be 16 other confounding factors. But there is a distribution 17 curve when that leukemia occurs. 18 Q. Did smoking cause Mr. Cowey's MDS? 19 A. Well, there would be no way to know. We -20 there are articles that suggest that myelodysplasia, 21 like acute leukemia, is at slightly increased risk in 22 smokers. 23 Q. What's your opinion based on his smoking 24 history? 25 A. Well, he ceased smoking sometime earlier 0057 1 before this illness. I've forgotten -- I'd have to 2 review what I said about his smoking history. I don't 3 remember how many years he smoked. 4 Q. In your report you don't make any statement 5 that smoking contributed to cause his disease. That's 6 why I'm asking. I want to make sure. 7 A. I see. No. Well, it's generally thought that 8 a person who smokes for many years, let's say 20 or 25 9 years, can accumulate as much as four to fix part per 10 million years of exposure. That's well below what we 11 think causes AML. But it is benzene exposure. And it 12 is well known that a smoker generally is exposed to 10 13 times the amount of benzene that a nonsmoker is. But do 14 I think myelodysplasia caused his illness -- do I think 15 that smoking caused his illness of myelodysplasia, I 16 would have no reason to think that. 17 Q. How about, do you think that chemotherapy 18 agents or drugs caused his MDS? 19 A. We have no record that he received any such 20 drugs. 21 Q. So the answer, I take it, based upon what you file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (35 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 22 have before you is that it didn't? 23 A. Yes. We don't have any evidence. 24 Q. Same question for radiation treatment, or 25 ionizing radiation. 0058 1 A. Yes. There was no evidence he received 2 radiation. His treatment for the prostate cancer was 3 surgical. 4 Q. And I take it from what I've heard you say 5 today, you do not believe that benzene contributed to 6 cause this disease? 7 A. His disease of myelodysplasia we're talking 8 about? 9 Q. Correct. 10 A. No, I don't think that benzene contributed to 11 his disease. 12 Q. And that's based upon what? 13 A. His deposition; in other words, my reading of 14 his deposition would be that he is not comparable to 15 someone working in, let's say a benzene-related 16 industry, that his exposures were casual, as most 17 handymen, including myself, would have over the years 18 and could not have been of the magnitude to give him a 19 hundred part per million years exposure. 20 Q. Are you relying on any independent basis for 21 that other than your own opinion, based upon your own 22 work? 23 A. No. That's just my opinion. 24 Q. In other words, you're not relying on any 25 exposure data outside of what you've seen from 0059 1 Mr. Cowey's own testimony? 2 A. That's correct. 3 Q. Did you use Liquid Wrench? 4 A. No, I never used Liquid Wrench. 5 MR. LUBEL: Enjoyed meeting you. Thanks 6 for your time. 7 MR. DILLARD: We'll reserve ours. 8 Thanks. 9 MS. YATES: Reserve ours. 10 11 12 file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (36 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 13 14 15 16 17 18 19 20 21 22 23 24 25 0060 1 CHANGES AND SIGNATURE. 2 PAGELINE CHANGE REASON 3 _______________________________________________________ 4 _______________________________________________________ 5 _______________________________________________________ 6 _______________________________________________________ 7 _______________________________________________________ 8 _______________________________________________________ 9 _______________________________________________________ 10 _______________________________________________________ 11 _______________________________________________________ 12 _______________________________________________________ 13 _______________________________________________________ 14 _______________________________________________________ 15 _______________________________________________________ 16 _______________________________________________________ 17 _______________________________________________________ 18 _______________________________________________________ 19 _______________________________________________________ 20 _______________________________________________________ 21 _______________________________________________________ 22 _______________________________________________________ 23 _______________________________________________________ 24 _______________________________________________________ 25 _______________________________________________________ 0061 1 I, ETHAN A. NATELSON, MD, have read the foregoing deposition and hereby affix my signature that 2 same is true and correct, except as noted above. file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (37 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 3 4 ___________________________________ 5 ETHAN A. NATELSON, MD 6 7 THE STATE OF __________) COUNTY OF _____________) 8 Before me, ___________________________, on 9 this day personally appeared ETHAN A. NATELSON, MD, known to me (or proved to me under oath or through 10 ___________________________) (description of identity card or other document) to be the person whose name is 11 subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and 12 consideration therein expressed. Given under my hand and seal of office this 13 __________ day of ________________________, __________. 14 15 ___________________________________ 16 NOTARY PUBLIC IN AND FOR THE STATE OF ______________________ 17 COMMISSION EXPIRES: _______________ 18 19 20 21 22 23 24 25 0062 1 CAUSE NO. A-167,693 2 JAMES COWEY AND RUTH ) IN THE DISTRICT COURT COWEY ) 3) PLAINTIFFS, ) 4) VS. ) JEFFERSON COUNTY, TEXAS 5) RADIATOR SPECIALTY ) 6 COMPANY, ET AL ) file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (38 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt ) 7 DEFENDANTS. ) ) 58TH JUDICIAL DISTRICT 8 9 REPORTER'S CERTIFICATION DEPOSITION OF ETHAN A. NATELSON, MD 10 DECEMBER 3, 2003 11 12 I, Mark A. Miller, Certified Shorthand Reporter in 13 and for the State of Texas, hereby certify to the 14 following: 15 That the witness, ETHAN A. NATELSON, MD, was duly 16 sworn by the officer and that the transcript of the oral 17 deposition is a true record of the testimony given by 18 the witness; 19 That the deposition transcript was submitted on 20 ____________________ to the witness or to the attorney 21 for the witness for examination, signature and return to 22 me by ____________________; 23 That the amount of time used by each party at the 24 deposition is as follows: 25 MR. LUBEL.....1 HOURS:17 MINUTE(S) 0063 1 That pursuant to information given to the 2 deposition officer at the time said testimony was taken, 3 the following includes counsel for all parties of 4 record: 5 FOR THE PLAINTIFFS: 6 MR. LANCE LUBEL HEARD, ROBINS, CLOUD, LUBEL & GREENWOOD 7 910 TRAVIS STREET, SUITE 2020 HOUSTON, TEXAS 77002 8 9 FOR THE DEFENDANTS UNITED STATES STEEL CORPORATION, ARISTECH CHEMICAL CORPORATION AND USX CORPORATION: 10 MR. STEPHEN C. DILLARD FULBRIGHT & JAWORSKI 11 1301 MCKINNEY, SUITE 5100 HOUSTON, TEXAS 77010 12 13 FOR THE DEFENDANT RADIATOR SPECIALTY COMPANY: MR. JAMES M. RILEY file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (39 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 14 MS. STACY K. YATES COATS, ROSE, YALE, RYMAN & LEE 15 1001 FANNIN, SUITE 800 HOUSTON, TEXAS 77002-6707 16 17 I further certify that I am neither counsel for, 18 related to, nor employed by any of the parties or 19 attorneys in the action in which this proceeding was 20 taken, and further that I am not financially or 21 otherwise interested in the outcome of the action. 22 23 24 25 0064 1 Further certification requirements pursuant to Rule 2 203 of TRCP will be certified to after they have 3 occurred. 4 Certified to by me this 5TH of DECEMBER, 2003. 5 6 7 ___________________________________ Mark A. Miller 8 Texas CSR No. 1190 Expiration Date: 12/31/04 9 Nell McCallum & Associates 10 Firm Registration No. 243 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (40 of 41) [7/1/2010 1:42:57 PM] file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt 0065 1 FURTHER CERTIFICATION UNDER RULE 203 TRCP 2 The original deposition was/was not returned to the 3 deposition officer on _________________________; 4 If returned, the attached Changes and Signature 5 page contains any changes and the reasons therefor; 6 If returned, the original deposition was delivered 7 to _________________________, Custodial Attorney; 8 That $__________ is the deposition officer's 9 charges to the Plaintiff for preparing the original 10 deposition transcript and any copies of exhibits; 11 That the deposition was delivered in accordance 12 with Rule 203.3, and that a copy of this certificate was 13 served on all parties shown herein on and filed with the 14 Clerk. 15 Certified to by me this __________ day of 16 ____________________, 2003. 17 18 19 ___________________________________ Mark A. Miller 20 Texas CSR No. 1190 Expiration Date: 12/31/04 21 Nell McCallum & Associates 22 Firm Registration No. 243 23 24 25 file:///C|/Users/MadeK42/Desktop/EXPERT%20TRANSCRIPTS/trc13065.txt (41 of 41) [7/1/2010 1:42:57 PM]