Document xzvZe7YmD87JRXbb4Rzw9VDeE

FILE NAME: Kaiser Gypsum (KG) DATE: 1999 June 1 DOC#: KG054 DOCUMENT DESCRIPTION: Legal - Deposition of Brentwood Crosby Vol II 1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 2 IN AND FOR THE COUNTY OF KING 3 -- OOO-- - 4 JOHN E. CRUM and MARILYN J. CRUM, a married couple, 5 Plaintiffs, 6 vs . No. 98-2-24 915-3SEA 7 THE E.J. BARTELLS COMPANY; 8 et al., 9 Defendants. 10 11 12 13 DEPOSITION OF BRENTWOOD CROSBY 14 VOLUME II 15 (Pages 70 to 171) 16 17 18 19 Taken before KIMBERLEY. RICHARDSON 20 CSR No. 5915 21 June 1, 1999 22 23 24 One Kaiser Plaza, Suite 505 Oakland, California 94612 25 510/451 -1580 Fax 510/451 -3797 Certified Shorthand Reporters 71 1 INDEX 2 PAGE 3 EXAMINATION BY MR. PETTY 76, 155 4 EXAMINATION BY MS . JACKSON . . 154 5 EXAMINATION BY MR. BERGMAN 156 6 7 8 9 10 11 KAISER. GYPSUM EXHIBITS PAGE 12 3 Affidavit by Dick fiadsen 88 13 4 Distribution List and Inter-office 95 Memorandum dated 5-3-73 14 5 Memorandum from R.A. Madsen 108 15 6 Letter to Jack Sullivan 111 16 dated 6-19-73 17 7 R.A. Madsen Chron file 1975 114 18 8 Inter-office Memorandum . 119 dated 6-27-73 ' 19 9 Affidavit by George Kirk 124 20 10 Letter to Victor Abnee, Jr., 138 21 dated 4-5-74 22 11 Bucket 105 23 PLAINTIFFS' . 24 9 Responses to Interrogatories 161 25 Aiken & Welch Court Reporters 72 1 DEPOSITION OF BRENTWOOD CROSBY 2 3 BE IT REMEMBERED, that pursuant to Notice, and on 4 the 1st day of July 1999, commencing at the hour of 5 10:00 a.m., in the offices of Aiken & Welch, One 6 Kaiser Plaza, Suite 505, Oakland, California, before 7 me, KIMBERLEY RICHARDSON, a Certified Shorthand 8 Reporter, personally appeared BRENTWOOD CROSBY, 9 produced as a witness in said action, and being by me 10 first duly- sworn, was thereupon examined as a witness 11 in said cause. 12 13 -- oOo-- 14 15 FRANCIS FERNANDEZ, Kazan, McClain, Edises, 16 Simon & Abrams, 171 12th Street, Suite 300 , Oakland, 17 California 94607, appeared on behalf of the Brent wood 18 Crosby. A - 19 20 MATTHEW P. BERGMAN, Weinst.ein & Bergman, 1201 21 Third Avenue, Suite 5300, Seattle, Washington 22 98101-3000, appeared on behalf of the Plaintiffs. 23 24 25 Aiken & Welch Court Reporters 73 1 GABRIEL A. JACKSON, PAUL J. GAMBA, Jackson & 2 Wallace, 580 California Street, 15th Floor, San 3 Francisco, California 94104, appeared on behalf of the 4 Defendant Kaiser Gypsum Company, Inc. ' 5 6 PATRICIA FRIEDEL, Gordon, Thomas, Honeywell, 7 Malanca, Peterson & Daheim, One Union Square, 600 8 University, Suite 2101, Seattle, Washington 9 98101-4105, specially appearing for those defendant 10 members of the Center for Claims Resolution who have 11 been served in this action. 12 13 PAUL CLARK, Lane, Powell, Spears, Lubersky, 1420 14 Fifth Avenue, Suite 4100, Seattle, Washington 15 98101-2338, appeared on behalf of the Defendant W .R . 16 Grace & Company. ' 17 18 KATHERINE M. STEELE, Steele & Sales, 700 Fifth 19 Avenue, Suite 5511, Seattle, Washington 98104, 20 appeared on behalf of the Defendant E.J. Bartells 21 Company. ' 22 23 24 25 Aiken & Welch Court Reporters 1 KENNETH E. PETTY, Williams, Kstner & Gibbs, Two 2 Union Square, 601 Union Street, Suite 4100, Seattle, 3 Washington 98101-2380, appeared on behalf of the 4 Defendant Kaiser Gypsum Company, Inc. 5 6 ALSO PRESENT: Ondrietta Johnson, Tele-Video 7 Production. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Aiken & Welch Court Reporters 75 1 MR. PETTY: For the record, my name is Ken 2 Petty, and I'm the attorney of record for Kaiser 3 Gypsum in the lawsuit entitled John E. Crum and 4 Marilyn J. Crum vs. E.J. Bartells pending in King 5 County Superior Court in Seattle, Washington. 6 This is the continuation of the videotape 7 deposition of Brentwood Crosby. Plaintiffs conducted 8 and completed their videotape direct examination of 9 Mr. Crosby on January 19, 1999, in Seattle, 10 Washington.. 11 Defendant Kaiser Gypsum is proceeding here 12 today, July 1st, 1999, in Oakland, California with its 13 videotaped cross-examination of Mr. Crosby pursuant to 14 the order of the Honorable Anne Schindler. 15 For the record, would the videographer please 16 identify herself as well as the date, time and 17 location for the videotaping. 18 THE VIDEOGRAPHER: My name is Ondrietta Johnson. A'. 19 I'm a qualified video technician and a notary public 20 for the County of Alameda, State of California. 21 This deposition is located at Aiken & Welch, the 22 Ordway Building, One Kaiser Plaza, Suite 505, Oakland, 23 California 94612. 24 It is July 1st, 1999. The present time is 10:05 25 a .m . . Aiken & Welch Court Reporters 76 1 MR. PETTY: And for the record, stipulations 2 will be the same as were reached for the January 19, 3 1999, deposition; is that fine? 4 MS. FRIEDEL: Yes. 5 MR. PETTY: May we go ahead and proceed to swear 6 the witness, please. 7 BRENTWOOD CROSBY, 8 sworn as a witness, 9 testified as.follows: 10 EXAMINATION BY MR. PETTY 11 MR. PETTY: Q. Good morning, Mr. Crosby. I 12 introduced myself. We met in Seattle and again this 13 morning. And we're here today, are we not, right 14 across from the Kaiser Center where you worked for 15 Kaiser for some 14 years? 16 A. Right. 17 Q. Near the end of the testimony that you 18 gave at Mr. Bergman's request in Seattle earlier this 19 year, do you remember testifying that, quote, "Kaiser 20 Gypsum was the best company I ever worked for. We 21 were very upset that they sold the company to Domtar 22 of Canada"? Do you remember that testimony? 23 A. Yes. 24 q . So I take it it's true that you found that 25 Kaiser Gypsum was a great company to work for? Aiken & Welch Court Reporters 77 1 A. Very much so. 2 Q. And, in fact, if it hadn't been such a 3 great company, you would not have stayed with them for 4 18 years; would you, sir? 5 A. No. 6 Q. In terms of some of the reasons why you 7 found it to be such a great company to work for, did 8 you find that the people generally got along well? 9 A. Yes. 10 Q. Did you find that thepeople took their 11 job seriously? 12 A. Yes. 13 Q. And did you find that from your 14 perspective the people tried their best to create good 15 products to satisfy the needs of their customers? 16 A. Yes. . ' 17 Q. Did you find that the people at Kaiser 18 Gypsum worked well together? 19 A. Yes. 20 Q. Did you find that thepeople effectively 21 communicated with one another whether it was a formal 22 meeting or just an informal chat in the hallway? 23 A. Yes. 24 Q. And was it your perception that the people 25 at Kaiser Gypsum cared about each other? Aiken & Welch Court Reporters 78 1 A. Yes. 2 Q. Did you find that the people at Kaiser 3 Gypsum went so far as to do things with one another 4 away from work whether it's golfing with one another, 5 fishing with one another, socializing, whatever they 6 wanted to do? 7 A. Yes. 8 Q. Now, in terms of your 18 years with Kaiser 9 Gypsum, did you find it to be a collection of 10 individuals who caredabout their customers as well? 11 A. Yes. ' 12 Q. Now, isn't it true, sir, that had the 13 company not been sold to Domtar of Canada in 1978, you 14 likely would have spent the rest of your work career 15 and retired as a Kaiser Gypsum employee? 16 A. Yes. 17 MR. FERNANDEZ: Objection. It calls for 18 speculation on the part of the witness. 19 MR. PETTY: May you identify yourself because I 20 don't believe you are on the record. 21 MR. FERNANDEZ: Sure. ; My name is Frank 22 Fernandez, and I'm here representing Mr. Crosby. 23 MR. PETTY: Thank you. 24 Q. Now, Mr. Crosby, when Kaiser Gypsum was 25 sold to Domtar in 1978, isn't it true that you Aiken & Welch Court Reporters 79 1 continued working at Domtar with many of your same 2 fellow co-workers who you had worked with at Kaiser 3 Gypsum? 4 A. Yes. 5 Q. And, in fact, wasn't the plaintiff in this 6 case, Mr. John Crum, one of your co-workers who you 7 continued to work with at Domtar? 8 A. Yes . 9 Q. And didn't you and Mr. Crum, in fact, 10 continue to work together for another 10 or 11 years 11 at Domtar after Kaiser Gypsum was sold? 12 A. Yes . 13 Q. Now, during your 18 years with Kaiser 14 Gypsum, isn't it true that it appeared to you to be a 15 safety-conscious company concerned with the health and 16 well-being of its employees? 17 A. Yes.- * 18 Q. And did the^ company-provide you and the 19 other employees health care insurance? 20 A. Yes . . , 21 Q. Did the company provide you and the other 22 employees Workers' Compensation insurance for any 23 accidents that might occur? 24 A. Yes . 25 Q. And speaking for yourself, I take it, Aiken & Welch Court Reporters 80 1 isn't it true that during the 14 years that John Crura 2 worked for you as an area sales manager you certainly 3 did not want or intend him to be harmed performing his 4 normal job duties, calling on customers and selling 5 the company's products; did you? 6 A. No . 7 Q. And you got to know other people in 8 management at the company pretty well over the years; 9 did you not? 10 A. - Yes . 11 Q. From getting to know those others in . 12 management, isn't it true, sir, that you have 13 absolutely no reason to believe that anyone else in 14 management wanted or intended area sales managers like 15 John Crum to be harmed performing their normal duties 16 calling on customers and selling products? 17. A. Yes . 18 Q. Now, in terms of your 18 years working for rft, ` 19 the company, sir, isn't it true that many of your 2 0 close friends even today some 21 years after Kaiser 21 Gypsum was sold, many of your close friends today are 22 people you worked with at Kaiser? 23 A. Yes . 24 Q. And those would be -- before he passed 25 away, John Crum was a close friend of yours? Aiken & Welch Court Reporters 81 1 A. Yes. 2 Q. And Dick Madsen, you mentioned his name in 3 the prior deposition. 4 A. Yes. 5 Q. Does he continue to be a close friend of 6 yours? 7 A. Yes . 8 Q. And you mentioned Byron Havernick. Was he 9 a former employee at Kaiser Gypsum? 10 A. . Yes . 11 Q. And does he continue to be a close friend 12 of yours? 13 . A. Yes . 14 Q. And I take it there are others that I 15 haven't mentioned; correct? 16 A. Yes. 17 Q. Now, you and Mr. Crum -- how close was 18 your relationship with Mr. Crum? Were you very close 19 friends ? 20 A. Yes . 21 Q. And I take it yo u were close enough that 22 you would help Mr. Crum out if he needed your help? 23 A. Yes . 24 Q. If he asked you for something, you 25 wouldn't hesitate to give it to him? Aiken & Welch Court Reporters 82 1 A. No. 2 Q. Now, Dick Madsen, do you call on or visit 3 Dick Madsen quite frequently even today, 1999? 4 A. Yes. 5 Q. How far apart do the two of you live? 6 A. Probably about 15 miles. He lives in 7 Danville. 8 Q. And Ithink youtestified or perhaps Mr. 9 Crum testified that you and Dick Madsen traveled from 10 the Bay Ar.ea to Nevada to visit John Crum when he took 11 ill last year in 1998? 12 A. Yes . 13 Q. Now, Iwant to talk to you some about Mr. 14 Madsen because I take it you've gotten to know him 15 very, very well in the years that you ve worked with 16 him and since then while you've been his close friend; 17 correct? 18 A. Yes. rfV .* 19 Q. How long have you known Dick? 20 A. Since approximately 1965. 21 q . Can you think of -any reason why your good 22 friend Dick Madsen would lie about his direct 23 responsibilities and experiences at Kaiser Gypsum? 2 4 A. No. 25 Q. Now, while Mr. Madsen was employed by Aiken & Welch Court Reporters 83 1 Kaiser Gypsum, wasn't his position director of 2 advertising or director of advertising and public 3 relations, something of that nature? 4 A. Yes. 5 Q. And in that position, wasn't Dick Madsen 6 the individual at Kaiser Gypsum who was responsible 7 for the design and the ordering of packaging materials 8 and labels for every product which bore the name 9 Kaiser Gypsum? 10 A. . Yes. 11 Q. Now, by contrast, sir, isn't it true that 12 you as sales -- in the sales department you had no 13 responsibilities relating to the design or the content 14 of the product packaging or the labels; correct? 15 A. Right. 16 Q. And isn't ittrue, sir, that in your 17 position you were not involved in management decisions 18 or discussions involving issues like product 19 packaging, product formulations or caution labels? 20 That wasn't what you did? 21 A. No. - 22 Q. And since that was not part of your direct 23 responsibilities, I take it you would not have 24 personal knowledge, would you, of the company s 25 discussions or decisions regarding the product Aiken & Welch Court Reporters 84 1 formulations, regarding the product packaging or 2 regarding caution labels? 3 MR. FERNANDEZ: Let me just object to the 4 question as posted is compound. 5 If you can answer that question, go ahead. 6 MR. PETTY: I'm happy to break it into three if 7 you wish. 8 Q. Would you rather I rephrase that question? 9 A. Yes. 10 Q. . All right. Since you were not involved in 11 discussions and decisions concerning issues about 12 product packaging, I take it, sir, you would not have 13 personal knowledge of the discussions and the 14 decisions the company"made about the product 15 packaging; correct? 16 A. Correct. 17 Q. And similarly, since you were not involved, 18 in the discussions and the decisions about product 19 formulations, I take it, sir, you would not have 20 personal knowledge of the discussions and the company 21 decisions about the product formulations; correct? 22 A. Correct. . 23 Q. And similarly, withrespect tolabeling, 24 caution labels and that nature that might go on a 25 package, since you were not directly involved with Aiken & Welch Court Reporters 85 1 those issues, I take it you would not have personal 2 knowledge of the discussions and the decisions of the 3 company concerning product labeling; correct? 4 A. Correct. 5 Q. Now, sir, would you agree with me that 6 Dick Madsen would have far greater expertise and 7 knowledge about the packaging and the labeling of 8 Kaiser Gypsum products? 9-: A. Yes. 10 Q. - And if Dick Madsen were to testify under 11 oath that "Beginning in 1972/ pursuant to OSHA 12 regulations, Kaiser Gypsum placed a caution label on 13 all of its asbestos-containing products," do you have 14 any'reason to believe that he would be lying? 15 A. No. 16 Q. And ifyou didn't recall such caution 17. labels yourself being onthe product, but your friend 18 Dick Madsen told you, in fact, swore under oath that 19 they were on the packaging of the Kaiser Gypsum 20 asbestos-containing products, would you believe him 21 and stand corrected? ' 22 MR. FERNANDEZ: I'm going to object. It calls 23 for speculation. It misstates his prior testimony. 24 He has not testified he doesn't recall. He testified 25 he didn't see any labeling. Aiken & Welch Court Reporters 86 1 So as stated, I think it's an unfair question. 2 It assumes facts not in evidence. It's misleading. ' 3 And on that basis I'm going to instruct my 4 client not to answer. 5 MR. PETTY: You're going to instruct your client 6 not to answer? 7 MR. FERNANDEZ: That's right. 8 MR. PETTY: What's the authority for instructing 9 your client not to answer under Washington rules? 10 MR.. FERNANDEZ: I just stated my objections and 11 the reasons why. 12 MR. PETTY: Q. Did you understand the question 13 that I asked you, Mr. Crosby? 14 A. Yes . 15 Q. And are you going to listen to the 16 instruction of your counsel and not answer it here on 17 the record? 18 A. Yes. . ' 19 Q. Let me ask you this, sir: If Dick Madsen 20 were to testify under oath that the caution label 21 read, "Caution. Contains asbestos fiber. Avoid 22 creating dust. Breathing asbestos dust may cause 23 serious bodily harm," would you believe him that that 24 is, in fact, what the caution label said? 25 MR. FERNANDEZ: I'm going to object. Again, Aiken & Welch Court Reporters 87 1 you're asking my client to speculate about what 2 someone might testify to, and there has been no 3 testimony to that effect, at least presented to my 4 client. You're asking him to judge the credibility of 5 someone else, and that's argumentative and an improper 6 question. 7 You can ask my client about his knowledge of the 8 various issues, but I think to the extent you're 9 asking him to pass judgment on what someone else might 10 say if the-y were faced with that question under oath, 11 it's just unfair, and I'm going to instruct my client 12 not to answer. 13 . MR. PETTY: I would just state for the record, 14 Mr. Fernandez, that I do not believe your objections 15 are proper under Washington rules of procedure. I do 16 not believe it is proper to instruct the witness not 17 to answer in either of these situations, nor do I ` 18 believe is it proper to have a speaking objection as 19 you have lodged for the record. And if this 20 continues, we will need to get in touch with Judge 21 Schindler for that. - 22 But in recognition of your objection and to 23 alleviate any fears, hopefully any basis for you to 24 continue in that regard, I would like to have the 25 court reporter mark what will be Kaiser Gypsum Exhibit Aiken & Welch Court Reporters 88 1 No. 3. And I have one copy for you. I didn't realize 2 that you were going to be here. I have one copy for 3 Matt I should say. 4 (Document marked Kaiser Gypsum 5 Exhibit No. 3 for 6 Identification.) 7 MR. PETTY: Q. Mr. Crosby, have you had an 8 adequate opportunity to read what has been marked as 9 Kaiser Gypsum Exhibit No. 3? 10 A. . Yes. 11 Q. From reading it, can you tell us is that a 12 signed sworn affidavit from your friend Dick Madsen 13 who you worked with at Kaiser Gypsum for many years? 14 A. Yes. 15 Q. And, sir, you have never seen that 16 affidavit before I ta-ke it? 17 A. No. 18 q . So when you<*vtestified inSeattle in 19 January of this year, you did not have that 20 information to consider this sworn testimony of Mr. 21 Madsen; correct? ; 22 A. No. 23 Q. . I would like to gothrough theaffidavit 24 with you, then. 25 The first paragraph, could you read it? Is your Aiken & Welch Court Reporters 85 1 eyesight adequate to be able to read that well into 2 the record or would you like me to read it, and then I 3 want to ask you questions about it. 4 MR. FERNANDEZ: Is there any purpose in having 5 my client read? This is a document in the record. 6 The document speaks for itself. If you want to ask 7 him some question about No. 1 -- but there is no 8 purpose, sir, in having my client read the document. 9 MR. PETTY: Do you have an objection? 10 MR. FERNANDEZ: Yes. I think it's unfair and 11 it's unnecessary for my client to have to read into 12 the record a document that you're making an exhibit 13 for the record. 14 THE WITNESS: If you want to read it, you can 15 read it. 16 MR. FERNANDEZ: ' I'm happy to do it. That's all 17 I asked. ' 18 Q. Let's go ahead and do that, sir. The 19 first paragraph -- and please read along with me, and 20 if I misstate even a single word, would you stop and 21 correct me? Is that fine? ' 22 A. Yes. 23 Q. The first paragraph, sir, it reads, "I was 24 employed with Kaiser Gypsum Company, Inc., hereinafter 25 Kaiser Gypsum from 1966 to 1978 when Kaiser Gypsum Aiken & Welch Court Reporters 90 1 ceased its operations. While employed with Kaiser 2 Gypsum, my job title was director of advertising and 3 public relations." 4 Did I read that correctly,sir? 5 A. Yes. 6 Q. Is that all truthful information to your 7 knowledge? . 8 A. To my knowledge, yes. 9 Q. And looking at the second paragraph, Mr. 10 Madsen states under oath, "I was a friend and 11 co-worker of John Crum and accompanied Brent Crosby to 12 visit Mr. Crum a few weeks prior to his death." 13 Is that a true statement to your knowledge? 14 A. Yes. 15 Q. I would like to jump ahead to the fifth 16 paragraph. And it states, "As director of advertising 17 and public relations, it was my responsibility to ` 18 supervise the design and order all packaging materials 19 and labels for every product which bore the Kaiser 20 Gypsum name." .. 21 Did I readthatcorrectly, sir? 22 A. Yes. 23 Q. And to yourknowledge and understanding, 24 is that a true statement that Mr. Madsen made under 25 oath? Aiken & Welch Court Reporters 91 1 A. Yes. 2 Q. And now the sixthparagraph reads, "I have 3 been informed that Mr. Brentwood -- Brent Crosby, a 4 former district sales manager for Kaiser Gypsum with 5 whom I'm personally acquainted testified recently in 6 deposition that he was unaware of any caution labels 7 on any of the packages of Kaiser Gypsum's 8 asbestos-containing products." 9 Did I read that correctly, sir? 10 A. Yes. 11 Q. And did Mr. Madsen properly characterize 12 the testimony that you gave about six months ago in 13 Seattle? 14 MR. FERNANDEZ: I'm going to object. The record 15 of what my client said six months ago can be 16 referenced. There's no need for my client to 17 characterize whether what Mr. Madsen is saying is an 18 accurate reflection of what he said six months ago. 19 I think that question is not likely to lead to 20 the discovery of admissible evidence. It's 21 argumentative. This is triad testimony. I don't 22 think this is the type of question that any judge in 23 any jurisdiction would allow and require that a 24 witness answer. 25 So on that basis, I'm going to instruct him not Aiken & Welch Court Reporters 92 1 to answer. 2 MR. PETTY: Counsel, I would again ask you to 3 please adhere to the rules of procedures and the 4 objections pertinent to Washington civil litigation. 5 You are not doing so. You have continued to make 6 speaking objections. In this instance you are now 7 ruling on your objections, which is thoroughly 8 improper. 9 . I would ask you to please make proper 10 objections. It will be at my peril if I don't 11 understand the nature of your objection. 12 I am entitled to have, a clean record just as I 13 afforded Mr. Bergman and Mr. Crosby the opportunity to 14 speak clearly and be heard and develop a clean record 15 at their deposition in January of this year. 16 I will once again ask you for that courtesy and 17 adherence to our rules. May I have it, sir? 18 MR. FERNANDEZ: I <#.will proc*eed in what I think 19 is the best interest of my client. 20 MR. PETTY: Q. I'm going to read you, sir, 21 paragraph 7 and 8. The first, paragraph 7, references 22 what I just read from paragraph 6. It says, "The 23 statement in deposition by Mr. Crosby that Kaiser 24 Gypsum's asbestos-containing products never contained 25 a caution label is not correct." Aiken & Welch Court Reporters 93 1 Did I read that properly, sir? 2 A. You read it properly. 3 Q. Do you think that perhaps Mr. Madsen is 4 right that there were caution labels on the products, 5 and you simply don't recall? 6 A. Yes. 7 Q. And in paragraph 8, Iwill read it. 8 "Beginning in 1972, pursuant to OSHA regulations, 9 Kaiser Gypsum placed a caution label on all of its 10 asbestos-containing products. The caution label as 11 prescribed by OSHA read 'Caution. Contains asbestos 12 fiber. Avoid creating dust. Breathing asbestos dust 13 may cause serious bodily harm.'" 14 Did I read that correctly, sir? 15 A. Yes. 16 Q. Do you have anyreasonto believe that Mr. 17 Madsen is lying or is incorrect in the statements he 18 has made in paragraph 8? 19 MR. FERNANDEZ: I'm going to object, Counsel. 20 You're asking my client to pass judgment on the 21 veracity of Mr. Madsen. I think that's an improper 22 question. It will not be allowed at trial. 23 On that basis, I'm going to instruct my client 24 not to answer. 25 MR. PETTY: Q. Are you going to follow the Aiken & Welch Court Reporters 94 1 continuing instruction of your attorney? 2 A. Yes. 3 Q. You realize this may necessitate a further 4 deposition of you? 5 MR. FERNANDEZ: Counsel, if you have a question 6 to ask my client, ask him a question. He is not here 7 to seek advice from you, he is not here to be 8 threatened by you or to be harassed or badgered by 9 you. Ask a question. 10 MR. PETTY: Counsel, I think the only harassment 11 is coming from your mouth in this room. 12 MR. FERNANDEZ: That's fine. You were just 13 threatening my client with a further deposition, and 14 that, I think, is an unnecessary intimidation. It 15 wouldn't be allowed in any court in any jurisdiction 16 in this country, certainly not at trial in front of a 17 jury. 18 MR. PETTY: Q. I'm going.to read the 10th A\. ` 19 paragraph and see if we can make it through that one. 20 It states, "In the course of his employment, Mr. 21 Crosby was informed by inter-office memoranda of any 22 changes in packaging and labeling specifically in 23 reference to asbestos caution labels." 24 Did I read that correctly, sir? 25 A. You read it correctly. Aiken & Welch Court Reporters 95 1 Q. Let me ask this: In the course of your 2 employment with the company over 14-some years, did 3 you periodically receive inter-office memoranda on 4 various subjects? 5 A. Oh, yes. 6 Q. Was that a quite common occurrence that 7 mail would be routed to you? 8 A. Yes. 9 Q.. Do you have any recollection as you sit 10 here today of receiving inter-office memoranda that 11 referenced the subject of asbestos in the products o.r 12 asbestos caution labels?* 13 A. No, I have norecollection. 14 MR. PETTY: I would like to hand the court 15 reporter what will be marked as Kaiser Gypsum No. 4. 16 (Document marked Kaiser Gypsum 17 _ Exhibit No. 4 for . 18 Identification.) 19 MR. PETTY: Q. Sir, I would like to hand you 20 what the court reporter has marked as Kaiser Gypsum 21 Exhibit No. 4, and I'll give .you an opportunity, 22 however much time you wish, to review it. 23 MR. BERGMAN: I'm going to object to the use of 2 4 this document insofar as it was not produced in prior 25 discovery in response to explicit requests for Aiken & Welch Court Reporters 96 1 documents such as this nature. I'm also going to 2 object on foundational grounds. 3 MR. PETTY: And for the record, I would just 4 note there are no discovery requests of any nature in 5 this lawsuit that have been directed- to Kaiser Gypsum. 6 MR. BERGMAN: In the Pickner case, there were 7 specific requests for documents falling within the 8 category of that document. They were not produced, 9 and they were signed under oath by Kaiser Gypsum. 10 MR. PETTY: I would note in this case at the 11 videotaped depositions of Mr: Crum you used exhibits 12 without producing them in advance, exhibits that were 13 directly responsive to pending discovery that had been 14 issued by me in this case. 15 Q. Have you had an opportunity to review the 16 document that has been marked as Kaiser Gypsum Exhibit 17 No. 4, sir? 18 A. Yes. 19 Q. And is that an example of the type of 20 inter-office memorandum that you would often receive? 21 A. Yes. , ' 22 Q. Is that a distribution list - 23 MR. FERNANDEZ: Let me object that the question 24 as posed is vague. Exhibit 4 consists of two pages. 25 The first page is not an inter-office memorandum, so I Aiken & Welch Court Reporters 97 1 would ask you to rephrase. The question as posed is 2 an inaccurate description of this exhibit. 3 MR. PETTY: And I would ask you to again try to 4 conform your objections to the rules and the 5 requirements that we proceed - 6 MR. FERNANDEZ: .Counsel, I have to tell you v/hat 7 my objection is and ask you to conform what I think is 8 an appropriate way to ask the question. That's all 9 I'm doing. 10 But as I say, the first page is not an 11 inter-office memorandum. 12 MR. PETTY: You'll have an opportunity to ask - 13 Mr. Bergman will have all the opportunity to ask 14 questions . 15 MR. FERNANDEZ: It is my job to make sure you 16 ask fair and accurate questions of my client. That's 17 what I'm trying to do. . 18 MR. PETTY: Q. Mr. Crosby, that document there, 19 the first page, it is a distribution list; is it not? 20 A. Right. 21 Q. And was it common for memoranda to be 22 routed with a distribution list like that? 23 A. Yes . 24 Q. And does the inter-office memorandum 25 itself -- it's dated May 3, 1973; correct. Up in the Aiken & Welch Court Reporters 98 1 upper right corner it says May 3, 1973? 2 A. Uh-huh. 3 Q. You have to say "yes." 4 A. Yes. 5 Q. Doesn't thatinter-office memorandum state 6 that it was sent to "See attached distribution"? 7 Right up here in the top of the page. 8 A. Yes. 9 Q. And- the distribution list that it was 10 attached to, is that the group of people that would 11 receive an inter-office memorandum such as that? 12 MR. FERNANDEZ: Let me just object. That calls 13 for a speculation on the part of the witness. 14 You can answer -- if you can answer, go ahead. 15 MR. PETTY: Q. Do you remember my guestion, 16 sir? Does that distribution list look like the kind 17 of a distribution list that would have been used for a 18 memorandum of this type? . 19 MR. FERNANDEZ: It also calls for speculation on 20 the part of the witness. 21 THE WITNESS: Yes. ' 22 MR. PETTY: Q. And that distribution list, sir, 23 does it not show your name there under the district 24 sales manager, D.F. Crosby? 25 A. Yes. Aiken & Welch Court Reporters 99 1 Q. That's you? 2 A. Yes. 3 Q. Sir, when you testified in Seattle earlier 4 this year, do you recall testifying that you did not 5 know that Kaiser Gypsum was using asbestos in some of 6 its accessory products? 7 A. Yes. 8 Q. And do you recall testifying in that 9 deposition about certain alleged conversations with 10 George Kirk and A1 Raffgelli when you contend that 11 they expressly denied that Kaiser Gyps urn was using 12 asbestos in products? 13 . MR. FERNANDEZ: I'm going to object. Again, 14 Counsel, the record will speak for itself. You're 15 arguing with the witness. I think that's improper. 16 He didn't contend anything. He made statements based 17 on his memory. 18 As the question is phrased, it's an inaccurate <#. * 19 description of his testimony, and on that basis I'm 20 going to instruct my client not to answer. As 21 phrased, it's an unfair question. 22 MR. PETTY: So is your client withdrawing that 23 testimony? 24 MR. FERNANDEZ: My client is not doing anything. 25 My client is waiting for you to ask him a proper Aiken & Welch Court Reporters 100 1 question. 2 MR. PETTY: And I have done so, and you've 3 instructed him not to answer. 4 MR. FERNANDEZ: That's correct. 5 MR. PETTY: Q. Are you going to continue to 6 adhere to the instructions of your attorney? 7 A. Yes. 8 Q. Now, from Kaiser Gypsum Exhibit No. 4, can 9 you tell us, first, sir, who was the author? 10 MR. FERNANDEZ: Let me just -- I'm going to 11 object. It calls for speculation on the part of my 12 client. * 13 If you're asking him who the author is based on 14 what this says on the document, this document is 15 hearsay. There is no foundation for this document. 16 So if you're just asking him to read what's on 17 this document, you can do that as well as I can, and 18 the jury can do it as wa.ell as an` y of us can. 19 As posed, the question lacks foundation. It's 20 argumentative. 21 MR. PETTY: We will recess the deposition at 22 this time and entertain Judge Schindler. 23 For the record, this is Ken Petty. We are going 24 to recess the deposition, take whatever time is 25 necessary to reach Judge Schindler to resolve the Aiken & Welch Court Reporters 101 1 matter relating to Mr. Fernandez' appearance and 2 obstructionist tactics here to try to create an 3 unusable record of testimony. State whatever you v/ant 4 for the record. 5 MR. FERNANDEZ: This deposition was scheduled 6 for today. If you want to call the judge, that's 7 fine, but my client is prepared to testify today. His 8 time is valuable to him and to us. And so if you v/ant 9 to try to get ahold of the judge, feel free, but if 10 you adjourn this deposition today, you do so at your 11 own risk, and my client will not have to return. 12 We're here ready to give*testimony and to answer 13 proper questions. 14 MR. PETTY: Go off the record. 15 THE VIDEOGRAPHER: It is 10:38 a.m. We are now 16 off the record. ' 17' (Recess taken.) 18 THE VIDEOGRAPHER: It is 1.1:21 a.m. We are back 19 on the record. 20 Counsel, you may continue. 21 MR. PETTY: Thank you. * 22 Q. Mr. Crosby, again, I've handed you what's 23 been marked as Kaiser Gypsum Exhibit No. 4, and I 24 would ask you to take a look at the second page. Can 25 you tell us who sent that memorandum, that Aiken & Welch Court Reporters 102 1 inter-office memorandum to you and others at Kaiser 2 Gypsum? 3 A. It indicates it is from R.A. Madsen. 4 Q. And who would that be? 5 A. Dick Madsen. 6 Q. Is that the same Dick Madsen we've been 7 talking about here today? 8 A. Yes . 9 Q. Now, when an inter-office memorandum such 10 as this was routed to you, did you make a practice of 11 reading it? 12 A. Yes . 13 Q. Now, from this particular inter-office 14 memorandum, if we were to look at the subject of it, 15 it discusses two products, dual purpose joint compound 16 and topping compound.' 17 Do you see that, sir? 18 A. Yes. . 19 Q. And it states below, it says, "The above 20 packaging carries approved caution as prescribed by 21 federal regulations relating'to products containing 22 asbestos fibers." 23 Did I read that correct? 24 A. Yes . 25 Q. Would that have alerted you to the fact Aiken & Welch Court Reporters 103 1 that those two products referenced in the inter-office 2 memorandum contained asbestos, sir? 3 MR. FERNANDEZ: If he received and read the 4 document. 5 THE WITNESS: Yes. 6 MR. BERGMAN: Speculation. Foundation. 7 MR. PETTY: Q. Did you answer that, sir? 8 A. Yes'. 9 Q. And your answer was? Your answer was 10 "yes"? 11 A. Yes. 12 Q. And from yourreview ofthatsentence that 13 I just read, would that have told you, assuming that 14 you received and read this in 1973, that those 15 products, the packaging for those products contained a 16 caution label? 17 MR. BERGMAN: Objection. Foundation. 18 Speculation. 19 THE WITNESS: No. 20 MR. PETTY: Q. And why do you say that, sir? 21 The sentence that reads "The,above packing carries 22 approved caution as prescribed by federal regulations 23 relating to products containing asbestos fiber," what 24 is it about that sentence that would not have alerted 25 you to the fact that there was a caution label on such Aiken & Welch Court Reporters 104 1 products? 2 A. Well, it states that there is a caution 3 label, but I do not remember seeing it. 4 Q. Sir, the one product there is dual purpose 5 joint compound? 6 A. Right. 7 Q. And it says, "Premixed five-gallon plastic 8 or metal pail"? 9 A. Uh-huh. 10 Q. Does it state, "a black pail"? 11 A. Yes . 12 Q. And does it state , "with v/hite printing 13 A. Yes . 14 Q. Sir, I would like to hand you what has 15 marked as Kaiser Gypsum Exhibit No. 11, and I 16 would like to first hold it up since it is not one 17 that can accompany the record. Can the videographer 18 zoom in and get a picture of the front of this <*.. * 19 exhibit? 20 ' MR. BERGMAN: I would like to interpose a 21 foundational objection as to the use of this exhibit 22 and ask for a standing objection throughout your 23 questioning of that exhibit. 24 MR. PETTY: That's on the objection that you 25 lodged that we did not produce the discovery -- Aiken & Welch Court Reporters 105 1 MR. BERGMAN: No. It is a foundational 2 objection. 3 MR. PETTY: This is not an authentic? 4 MR. BERGMAN: Correct. 5 MR. PETTY: Turn it around to the backside. The 6 video may need to zoom it. 7 Please let me know if you cannot pick this up. 8 We may have to come closer to you. 9 THE VIDEOGRAPHER: I have it. It is a little 10 tilted. 11 (Bucket marked Kaiser Gypsum 12 Exhibit No. 11 for Identification.) 13 - MR. PETTY: Q. Sir, I'm going to hand you - 14 maybe we could set it because I don't want to put it 15 in front of you. We won't see you on the video. The 16 pail that's been marke-d as Kaiser Gypsum Exhibit No. 17 11, is that the kind of a pail that Kaiser Gypsum 18 premix dual purpose joint compound was packaged in? 19 A. Yes. 20 Q. Is that the kind of apail of aproduct 21 that you and the men under you sold to customers? 22 A. Yes. 23 Q. And I'd ask you to turn and look at the 24 back. Do you see, is there any kind of an asbestos 25 warning label on that package there, that pail? Aiken & Welch Court Reporters 106 1 MR. BERGMAN: Same objection. 2 MR. FERNANDEZ: Let me just interpose an 3 objection to the extent that you're using the term 4 "warning," you might want to define that term. That 5 word is not on the label. 6 THE WITNESS: I might ask: When was this can 7 produced with this labeling? 8 MR. PETTY: Q. Let me ask you, though, sir. 9 That's a question someone else may need to answer. 10 Looking at that particular pail, that appears to be 11 the type of a pail with the kind of labeling, at least 12 on the front side, that you recall the company using? 13 A. Yes. 14 ' Q. And they used it for that particular 15 product; correct? 16 A. Yes. 17 Q. Now, the back that you read, there was a 18 caution label; was there not? 19 A. Yes. 20 Q. And can you read for therecordwhat that 21 caution label says? 22 It says, "Caution. Contains asbestos 23 fibers. Avoid creating dust. Breathing asbestos dust 24 may cause serious bodily harm." 25 Q. And isthat the exact samewording, the Aiken & Welch Court Reporters 107 1 exact same caution label that your friend Dick Madsen 2 stated was on the products? 3 A. This memo does, yes. 4 Q. Does your opportunity to look at a pail 5 from that particular product refresh your recollection 6 as to whether or not there may have been caution 7 labels on Kaiser Gypsum products at some point in the 8 pas t ? 9 A. Well, my deposition was based on a period 10 of 1970s -- 1970. Not 1973. 11 It might also state that if this v/as on all of 12 our pails, why would customers come to our salesmen - 13 come to me and ask, "Do you have asbestos in your 14 product?" if it is stated on the can? 15 But we did receive many, many requests, did we 16 have asbestos in our product. 17 MS . FRIEDEL : Move to strike as nonre spons ive 18 MR. PETTY: I would join in that object ion. 19 Q- Sir, what I asked you was whether your 20 opportunity to review that pail refreshed your 21 recollection as to whether or not at some point in the 22 past there were cautions on the packaging? 23 A. No, it doesn't. 24 Q. Now, you said your prior testimony was 25 referencing a period 1970, but I would like to read to Aiken & Welch Court Reporters 108 1 you, and your attorney can read along, at the top of 2 page 56 of your deposition Mr. Bergman asked you, 3 "Mr. Crosby, between 1972 and 1978 were you aware of 4 any warnings on the containers of Kaiser Gypsum 5 asbestos products that breathing asbestos could cause 6 asbestosis ?" 7 Do you remember him asking you questions about 8 later time periods like 1972 to 1978? 9 A. Yes. 10 Q. And are you stating that despite looking 11 at that pail that you do not-believe that there were 12 warning labels, caution labels on the products in that 13 time frame? 14 A. Not to my recollection. Again, r don't 15 know when that can was produced in that manner. 16 .(Document marked Kaiser Gypsum 17 Exhibit No. 5 for 18 Identification.) 46. ` 19 MR. PETTY: Q. Let me hand you another 20 document, hand you what's been marked as Kaiser Gypsum 21 Exhibit No. 5. I would ask you to take a moment to 22 review it. 23 A. Okay. 24 Q. You've had an opportunity to review Kaiser 25 Gypsum Exhibit No. 5; have you not? Aiken & Welch Court Reporters 109 1 A. Yes. 2 Q. Let me ask you: Does the first page 3 appear to be a copy of a little notepad memorandum 4 that was sent by Dick Madsen to a Syd Henderson? 5 A. It appears to. 6 Q. Who is Syd Henderson? 7 A. I don't know. 8 Q. Does that appear to be Dick's signature 9 where it says "Dick"? Does that look like his 10 writing? 11 A . Yes. ' 12 Q. Thesecond page of Exhibit 5, does that 13 appear tobe a copy of aninter-office memorandum 14 dated May 17, 1973, sent by Dick Madsen? 15 A. Yes. 16 Q. And thevarious individuals that are 1.7 listed at the top as receiving it, Mr. Caprye, 18 Cassidy, Flannigan, Hardy, and it goes on with six 19 more names, do you recall, were those individuals 20 involved in the production side at different Kaiser 21 Gypsum plants? . 22 A. Yes. 23 Q. And the people that werecopied on the 24 memorandum there, Mr. Blewett, Mr. Cr.awl, Mr. Dupuis, 25 Mr. Franklin and the others, were those people that Aiken & Welch Court Reporters 110 1 were in Kaiser Gypsum management here across the 2 street at the Kaiser Center? 3 A. Yes. 4 Q. So in your reading this memorandum, isn't 5 it true that Dick Madsen was telling the plant 6 managers as well as senior management that this 7 caution label must appear on all Kaiser Gypsum Company 8 bags, cartons, containers which contain products 9 formulated with asbestos fiber? 10 A. Yes. 11 MR. BERGMAN: Objection. Speculation. 12 Foundation. 13 MR. PETTY: Q. Now, sir, you gained a great 14 understanding as to how the company was run over the 15 years; did you not? 16 A. Yes. 17 Q. Now, if Dick Madsen directed the various 18 plant managers and those involved in the production of 19 the products to be sure that asbestos caution labels 20 were on the packages of asbestos-containing products, 21 do you have any reason to believe that any of those 22 individuals would have disregarded his instruction? 23 MR. BERGMAN: Calls forspeculation. 24 MR. FERNANDEZ: Calls for speculation by the 25 witness. Lacks foundation as to whether anyone Aiken & Welch Court Reporters 111 1 received this document. 2 MR. PETTY: Q. Do you recall my question, sir? 3 A. N o . 4 Q. From knowing the way the company did 5 business and the way that people worked together, do 6 you have any reason to believe that the plant managers 7 who received this directive from Dick Madsen would 8 have disregarded his instruction? 9 A. No. 10 Q. In fact, that would not be the way that 11 the people at the company would have v/orked. They 12 would have gone ahead and done what they were 13 instructed to do; correct? 14 A. Correct. 15 MR. BERGMAN: Same objections. 16 -(Document marked Kaiser Gypsum 17 . Exhibit No. 6 for,, 18 . Identification.) <v 19 MR. PETTY: I would like to next hand you what's 20 been marked as Kaiser Gypsum Exhibit No. 6 and give 21 you a moment to study that. , 22 Q. Sir, from your review of Kaiser Gypsum 23 Exhibit No. 6, and I apologize that it is not a more 24 legible copy, but can you tell me, does that appear to 25 be a one-page letter signed by your friend Dick Aiken & Welch Court Reporters 112 1 Madsen? ' 2 A. Yes. 3 Q. And does that appear to be onofficial 4 company letterhead that would have been used back in 5 June of 1973? 6 A. Yes. 7 Q. And from your review of Exhibit 6, does it 8 appear that Mr. Madsen was writing to a company that 9 supplied containers for some of the Kaiser Gypsum 10 product ? 11 MR. FERNANDEZ: Calls for speculation on the 12 part of the witness. * 13 MR. PETTY: If he doesn't know, he can state 14 that . 15 MR. FERNANDEZ: Let me also object. The 16 question as posed is vague. 17 Are you asking him whether he knows what Bennett 18 Industries is or are you asking for his ' *n.. ` 19 characterization of this letter as looking like it's 20 going to that type of a company? 21 As posed, I think the question is vague, and I 22 would ask you to rephrase so we have a clear record. 23 MR. PETTY: Q. Sir, do you understand the 24 nature of my question? 25 A. Yes. Aiken & Welch Court Reporters 113 1 Q. And from your reading of this letter, does 2 it appear that Mr. Madsen was writing to a company 3 that supplied containers or packaging for Kaiser 4 Gypsum products? 5 MR. FERNANDEZ: Same objections. 6 THE WITNESS: I don't know Jack Sullivan. Could 7 be. 8 MR. PETTY: Q. In any event, does it appear 9 that Dick Madsen was conveying instructions for the 10 way a container was to be printed? 11 MR. BERGMAN: Objection. The document speaks 12 for itself. * 13 THE WITNESS: Yes. 14 MR. PETTY: Q. And his item numbered No. 3, it 15 states, does it not, "That the asbestos caution must 16 be printed as shown on the container"? 17 Do you see that, sir? 18 A. Yes. 19 Q. Now, do you have any reason to believe 20 from your understanding of the way business is run, do 21 you have any reason to believe that if one of Kaiser 22 Gypsum's supplier of containers received a directive 23 from Dick Madsen that they would have disregarded it? 24 MR. BERGMAN: Objection. Calls for speculation. 25 MR. FERNANDEZ: Lacks foundation. Aiken & Welch Court Reporters 114 1 THE WITNESS: Basically, no. 2 MR. PETTY: Q. Let me just ask you as a general 3 proposition if you were dealing with a supplier for 4 Kaiser Gypsum, and they didn't do what you asked, 5 wouldn't you just go find another supplier? 6 A. Yes. 7 (Document marked Kaiser Gypsum 8 Exhibit No. 7 for 9 Identification.) 10 MR. PETTY: Q. I would like to hand you another 11 exhibit that has been marked'as Kaiser Gypsum Exhibit 12 No. 6 -- excuse me, Exhibit No. 7, and ask you it's 13 a few more pages, so it may take you a few minutes to 14 study it. 15 A. Okay. 16 Q. Having had an opportunity to review 17 Exhibit 7, does the second page, sir, appear to be a 18 copy of another inter-office memorandum sent by Dick 19 Madsen? 20 A. It appears to be. 21 Q. Can you tell me the nature of the people 22 he sent his memorandum to? What would their jobs or 23 function have been with the company? Are these people 24 in production? 25 A. Yes. Aiken & Welch Court Reporters 115 1 Q. And the subject of this inter-office 2 memorandum that's been marked as Exhibit 7, sir, is 3 62-pound packages of premixed joint and topping 4 compound, labeling for it; is that correct, sir? 5 A. Yes. 6 Q. And from thisinter-officememorandum sent 7 by Dick Madsen on August 7, 1975, doesn't it appear to 8 you that the production of these pails and cartons at 9 that time had asbestos warning labels, on them? 10 A. In 1975, yes. 11 Q. And does it not also appear that the 12 company -- Dick Madsen and others at the company were 13 preparing to begin production of nonasbestos 14 formulations of those same products? 15 MR. FERNANDEZ: Objection. 16 MR. BERGMAN: Objection. Foundation. 17 Formulation. 18 MR. FERNANDEZ: May I hear that question read A'. 19 back, please? 20 (Record read.) 21 MR. FERNANDEZ: I'm going to object that the 22 document does speak for itself and asking the client 23 to speculate. 24 MR. PETTY: Q. Do you recall the nature of my 25 question, sir? Aiken & Welch Court Reporters 116 1 A. No. 2 Q- The sentence there,the middle of the 3 second page that Iwill read, "The newlabels are to 4 be placed over the asbestos warning label printed on 5 the containers when production at your plant shifts to 6 the nonasbestos product formulation." . 7 Did I read that correctly? 8 A. Yes. 9 . Q. Does that indicate at least to the 10 recipients of that letter that the company at that 11 time in 1975 was preparing to roll out nonasbestos . 12 formulations for those products? 13 MR. BERGMAN: Same objections. 14 MR. FERNANDEZ: Same .objections. 15 THE WITNESS: Yes. 16 MR. PETTY: Q. .Now, from reading these 17 documents, the additional exhibits we've looked at,, 18 does this refresh your recollection as to whether, in A. * 19 fact, there may have been caution labels on the Kaiser 20 Gypsum asbestos-containing products at least from 1973 21 through August 1975, the date of this memorandum? 22 A. Well, the memorandum does so indicate, 23 but, again, my deposition was referenced to 1970. 24 Q- So let me see if I understand what you're 25 saying. It's your recollection that there were not Aiken & Welch Court Reporters 117 1 warnings on the products in 1970, but you believe that 2 at some later time there was a period when warnings 3 did appear on the products or caution labels did 4 appear on the products; am I correct? 5 A. Yes. 6 Q. Now, we've been talking quite a bit so far 7 this morning about your friend from Kaiser Gypsum Dick 8 Madsen, and I'd like to change now and ask you about 9 someone else you mentioned in your January 1999 10 testimony. That is an individual named George Kirk. 11 Do you remember George Kirk? 12 A. Definitely. 13 . Q. Did you become friends with George Kirk 14 during the years you two worked at Kaiser Gypsum? 15 A. Yes. 16 Q. Did youcome to learn that he wasemployed 17 at Kaiser Gypsum even before you joined the company? 18 A. Yes. . 19 Q. And, in fact, did you come to learn that 20 he was employed back when the company started in 1952? 21 A. Yes. , 22 Q. And was he there at the company through at 23 least the mid-1970s when you were there? 24 A . Yes. 25 Q. And from your'interactions with Mr. Kirk, Aiken & Welch Court Reporters 118 1 did you come to understand that at least over the 2 years that you were there his position with the 3 company was the director of research? 4 A. Yes. 5 Q. And was in essence the head of the 6 research and development group? 7 A. Yes. 8 Q. Now, isn't it true that George Kirk's 9 responsibilities in that position would have included 10 being intimately familiar with Kaiser Gypsum's 11 products and the ingredients that were used to 12 formulate those products? 13 A. Yes. 14 Q. Wasn't the nature of his job to keep 15 seeing if they would adjust the formulation and make 16 it a little bit bette.r so the customers would be more 17 pleased with it? 18 A. Yes. . 19 Q. And from what you know of his 20 responsibilities and his position with Kaiser Gypsum, 21 isn't it true that he would have been in the best 22 position to know whether or not asbestos was an 23 ingredient in a particular product? 24 A. Yes. 25 Q. Now, isn't it true that he would have far Aiken & Welch Court Reporters 119 1 greater knowledge of the product formulas and 2 ingredients than would you or any salesman working 3 under you? ' 4 A. Yes. 5 Q. And can you think of anyreason why George 6 Kirk would lie about his direct responsibilities and 7 experiences at Kaiser Gypsum? 8 A. None. 9 Q. Now, do you recallgiving testimony at 10 your January 1999 Seattle deposition about a 11 conversation you had with Mr. Kirk where he denied 12 that there was any asbestos in Kaiser Gypsum accessory 13 products ? 14 A. Yes, I remember. 15 q . Can you think of any reason why George 16 Kirk would not have wanted Kaiser Gypsum's salesmen to 17 know that there was asbestos in the products? 18 A. No, I cannot. 19 (Document marked Kaiser Gypsum 20 Exhibit No. 8 for 21 Identification.) 22 MR. PETTY: Q. In fact, I'm going to hand you 23 what's been marked as Kaiser Gypsum Exhibit No. 8 and 24 ask you to study that. 25 A. Okay. Aiken & Welch Court Reporters 120 1 Q. Sir, have you had an adequate opportunity 2 to carefully and completely review the document marked 3 as Kaiser Gypsum Exhibit No. 8? 4 A. Yes. 5 Q. And from your review of that exhibit, does 6 this again appear to be at least the first page of a 7 copy of another inter-office memorandum? 8 A. Yes. 9 Q. And thisone was sent by G.B. Kirk. That 10 would be George Kirk; correct? 11 A. Yes. 12 Q. The dateof that inter-office memorandum 13 is June 27, 1973; correct? 14 A. Yes. 15 Q. Now, ifI could direct yourattention to 16 the third paragraph -- first, what was the subject of 17 it? It is "Asbestos" in all capitals and underlined 18 on the first page. Right? Do you see, that sir, the S'.. 19 subject of the memorandum? 20 A. Yes. 21 Q. If I could direct your attention to the 22 third paragraph, it states, "In order to clarify the 23 facts concerning the OSHA and EPA regulations 24 concerning asbestos., the attached draft has been 25 prepared as a proposed merchandising bulletin. This Aiken & Welch Court Reporters 121 1 would disseminate the information to our sales 2 personnel and would be available through our 3 salespeople to contractors." 4 Did I read that correctly, sir? 5 A. Yes. 6 Q. And, in fact, were merchandisingbulletins 7 a publication that was available to the salesmen? 8 MR. BERGMAN: Are you talking in general? 9 MR. PETTY: Talking in general. 10 Q. A merchandising bulletin, is that the type 11 of document that the salesmen would receive to provide 12 information about the products? 13 A. No. 14 Q. What was a merchandisingbulletin from 15 your experience with the company? 16 A. A merchandising bulletin was not sent in 17 general to the salesmen. They were sent to the sales 18 managers who disseminated it down to the salespeople. 19 Q. And who would the sales managers be? 20 People like you? . 21 A. Right. , 22 Q. And would it be people working under you 23 like John Crum? 24 A. Well, itwould be discussed probably at a 25 district sales meeting. Aiken & Welch Court Reporters 122 1 Q. So if I understand correctly, a 2 merchandising bulletin would come to a middle level 3 management sales manager like you, and when you got 4 together with your men like Mr. Crum, you would share 5 that information with them, if necessary pull out the 6 bulletin and read it with them? 7 A. Right. 8 Q. From your reading of that paragraph that I 9 read out loud, does it appear to you that Mr. Kirk 10 wanted to share information about asbestos to the 11 sales managers like you and thereafter to the salesmen 12 and the customers? 13 MR. FERNANDEZ: Let me object. It calls for 14 speculation on the part of the witness in that you're 15 asking whether he knows whether Mr. Kirk wanted to do 16 something, desired to do something, so I object on the 17 basis of vagueness as to the term "wanted." 18 MR. PETTY: Q. Do you understand my question, 19 sir? . 20 A. Yes. 21 Q. This sentence there, "This merchandising 22 bulletin would disseminate the information to our 23 sales personnel and would be available through our 24 salespeople to contractors." 25 Does that not indicate to you that George Kirk Aiken & Welch Court Reporters 123 1 wanted this information to go to you, the salesmen and 2 the customers? 3 MR. BERGMAN: Mischaracterizes the document. 4 MR. FERNANDEZ: This document speaks for itself, 5 Counsel. 6 MR. PETTY: Q. Did you understand my question, 7 sir? Isn't that true? 8 A. Yes. 9 Q. I want to turn to thesubject ofyour 10 January 1999 deposition testimony, the conversation 11 that you told us about where you asked Mr. Kirk about 12 whether asbestos was in accessory products, and you 13 testified that he said there was none. 14 Do you remember that testimony? 15 A. Yes. 16 Q. Now, if George Kirkwere toreview that 17 testimony you gave, and if he were to swear under bath 18 that he would not have lied to you about that issue, a>,. 19 would you sit here and call him a liar? 20 A. No . 21 MR. FERNANDEZ: Wait a ,,minute. Objection. 22 Calls for speculation on the part of the witness. It 23 assumes facts not in evidence. And my client is not 24 here and hasn't accused anyone of anything. In his 25 earlier deposition he did not accuse anyone of Aiken & Welch Court Reporters 124 1 anything. 2 So as phrased, I think, that question is unfair, 3 and I would ask that the question and the answer be 4 struck. 5 (Document marked Kaiser Gypsum 6 Exhibit No. 9 for 7 Identification.) 8 MR. PETTY: Q. Sir, I'm going to hand you 9 what's been marked as Kaiser Gypsum Exhibit No. 9 and 10 ask you to take a few moments, whatever you wish, to 11 review that document. 12 MR. FERNANDEZ: Is* there a question pending? 13 MR. PETTY: No. I'm giving your client an 14 opportunity to fully review that document. " 15 MR. FERNANDEZ: May I have the last question 16 read back, last question and answer. 17 (Record read.) 18 MR. FERNANDEZ: Let me just raise a belated 19 objection based on the fact that at the time that the 20 question and answer were given that was just read back 21 I did not have this affidavit of George Kirk, and as I 22 read this affidavit, nowhere does he state that either 23 my client lied or that he would not have lied to my 24 client. That statement does not appear anywhere in 25 this document. Aiken & Welch Court Reporters 125 1 So I renew my objection being an unfair question 2 based on facts not in evidence and asking my client to 3 speculate who the -- pass judgment of somebody else's 4 testimony which is not a proper subject for discovery 5 deposition. 6 MR. PETTY: My response will be reserved for the 7 judge. 8 Q. Sir, have you now had an opportunity to 9 carefully and completely review the document that's 10 been marked as Kaiser Gypsum Exhibit No. 9? 11 A. Yes. 12 MR. BERGMAN: I'm going to have a standing 13 hearsay objection to the use of this exhibit. 14 Was that "yes"? 15 MR. PETTY: That's fine. You can have that. 16 Q. Let me ask you this, Mr. Crosby: The 17 document marked as Kaiser Gypsum Exhibit No. 9, does 18 it appear to be a copy of a sworn affidavit signed by 19 George Kirk? 20 A. Yes. 21 Q. Have you ever seen that affidavit before 22 today? 23 A. No. 24 Q. So is it fair to state that when you 25 testified in Seattle in January of this year, you did Aiken & Welch Court Reporters 126 1 not have the benefit of this affidavit from Mr. Kirk 2 to consider; correct? 3 MR. FERNANDEZ: Well, let me just object to your 4 characterization as this declaration being of some 5 benefit. 6 You can answer the question if you want, but 7 "benefit" is your characterization, not my client's. 8 MR. PETTY: I think again we're reverting back 9 to the improper speaking statements on the record, and 10 I would ask for you to refrain. 11 MR. FERNANDEZ: It also assumes facts not in 12 evidence. He hasn't said it was a benefit. 13 MR. PETTY: He hasn't said it wasn't. 14 MR. FERNANDEZ: No. I said you are 15 characterizing this document. 16 ' MR. PETTY: Please. I thought we had an 17 understanding that you now knew the scope of proper 18 objections and speaking objections and instructions to 19 your client - 20 MR. FERNANDEZ: All you have to ask him, "Does 21 this help you to recall?" You can ask a nice clean 22 question or you can editorialize and ask an improper 23 question. 24 MR. PETTY: Q. Do you remember my question? 25 A. No. Aiken & Welch Court Reporters 127 1 Q. The document marked as Exhibit No. 9, you 2 did not have that information available to you, that 3 document available to you when you testified in 4 Seattle in January of this year; did you, sir? 5 A. No. This thing was written in 1999. 6 Q. It was written after your deposition as a 7 result of some testimony you gave; correct? 8 A. 11th of March of 1999. 9 Q. I'm going to ask you to consider some of 10 the sworn testimony provided by Mr. Kirk in his 11 affidavit marked as Exhibit 9. 12 The first paragraph, sir, and read along with me 13 to make sure that I don't mischaracterize it, states, 14 "I was employed with Kaiser Gypsum Company, Inc., 15 hereinafter Kaiser Gypsum, since its inception in 1952 16 through 1974. In 1958 I became director of research 17 for Kaiser Gypsum, and held that position through v 18 1974." ' 19 Did I read that correctly? 20 A. Yes. . 21 Q. Is that information as referred to by Mr. 22 Kirk true and correct to your knowledge? 23 MR. FERNANDEZ: Let me just object. It calls 24 for speculation on the part of my client. He wasn't 25 there in '58. Aiken & Welch Court Reporters 128 1 MR. PETTY: Q. Did you answer that -question? 2 Do you have any reason to believe that any of that 3 information is incorrect? 4 A. No. 5 Q. Now, I would like to direct your attention 6 to the third paragraph. It states, "As director of 7 research, I am familiar with Kaiser Gypsum's product 8 line and the components which were used to formulate 9 each product." 10 Did I read that correctly? 11 A. Yes. 12 Q. And I take it you would agree v/ith Mr. 13 Kirk's testimony in that paragraph? 14 A. Yes. 15 Q. Then, if I were to turn your attention to 16 the fourth paragraph, this is the one where he recites 17 the testimony that you gave about the conversation in 18 1970. 19 A. Uh-huh. 20 Q. Correct? 21 A. Yes. . 22 Q. And we've talked about that conversation a 23 couple of times here earlier today; correct? . 24 A. ' Yes . 25 Q. And if you look at paragraph No. 5, and Aiken & Welch Court Reporters 129 1 I'll read it for you, "I do not recall that Mr. Crosby 2 ever asked me in 1970 whether or not any of Kaiser 3 Gypsum's products contained asbestos. Had he asked me 4 that question in 1970, I would have truthfully 5 responded that Kaiser Gypsum's accessory products 6 contained asbestos as an ingredient." 7 Did I correctly read his sworn testimony? 8 MR. BERGMAN: Object to the term "testimony." 9 THE WITNESS: Yes. 10 MR. PETTY: Q. Now, from your reading of 11 paragraph 5, does it appear that he does not have the 12 recollection of the conversation that you have a 13 recollection of occurring in 1970? 14 A. It appears. 15 Q. I want to ask you this, sir: Is it 16 perhaps possible that if you, in fact, accurately 17 recall conversations with people at Kaiser Gypsum 18 where they denied the presence of asbestos in the 5'.. 19 products, is it perhaps possible that those 20 conversations may have occurred five or six years 21 later after George Kirk had changed the formulations 22 to remove asbestos? 23 A. No. 24 MR. FERNANDEZ: Let me just object. It calls 25 for speculation on the part of the witness. It Aiken & Welch Court Reporters 130 1 assumes facts not in evidence. 2 MR. PETTY: Q. It's not possible? 3 A. T h a t 's r i g h t . 4 Q. And why is that not possible, sir, that 5 that conversation may have occurred five to six years 6 later when there no longer was asbestos in the 7 products? 8 ' A. Well, the question that was broached to 9 sales personnel and middle management was strong in , 10 about 1970. 11 Q. Why is it that you can date this to 1970? 12 A. Well, I- had transferred back to the Kaiser 13 Center in 1970, and that's when the question was 14 rampant at that time, and my meeting my discussion 15 with Mr. Kirk was not. in a meeting formally. It was a 16 question that was asked possibly on the floor of the 17 25th floor or in the elevator or in the parking lot. 18 It was a question that had been bothering me, and this S',. * 19 was an opportunity for me to talk to George, who I 20 have tremendous respect for. 21 Q. Let me ask you this, sir: So it's the 22 fact that the conversation occurred at the Kaiser 23 Center that you find somewhat helpful in dating it; 24 correct? 25 A. Right. Aiken & Welch Court Reporters ' 131 1 Q. And you returned to the Kaiser Center in 2 1970? 3 A. Right. 4 Q. How long did you remain at the Kaiser 5 Center while employed by the company? From 1970 - 6 A. Until 1974 when the company was dissolved 7 and taken over by Domtar. 8 q . is it your recollection that that occurred 9 in 1974? 10 A. April of 1974. 11 q . So the conversation that you had with Mr. 12 Kirk was sometime - 13 A. Excuse me. Possibly it was1978. 14 q . It's kind of hard to remember details on 15 dates that far back; correct, sir? 16 A. Yes. 17 q . The conversation occurred at the Kaiser . 18 Center, so you know it occurred sometime between the j.. * 19 time when you were transferred back there in 1970 and 20 the time the company was dissolved and acquired by 21 Domtar, whenever that happened; correct? 22 A. Well, specifically I would state that it 23 was in 1970. 24 Q. And that's simply because you know that 25 you were back at the Kaiser Center, and you believe it Aiken & Welch Court Reporters 132 1 was 1970 or so when people were asking you questions 2 about asbestos? 3 A. Yes. It started in '68, '69 and '70. 4 Q. Let me direct your attention to the sixth 5 paragraph of Mr. Kirk's affidavit marked as Exhibit 9, 6 and I'll read it. 7 "Kaiser Gypsum always had an open-door policy 8 and encouraged its employees such as Mr. Crosby to 9 tour its facilities." 10 Did I read that sentence correctly? 11 A. Yes 12 Q. And is that a true statement? 13 A. Yes . 14 Q. And then that paragraph goes on to state, 15 "I specifically recall Brent Crosby touring the 16 Antioch manufacturing.facility with Kaiser Gypsum 17 customers." . 18 Did I read that correctly? 19 A. Yes . 20 Q. And was that -a true statement? Did you 21 tour the Antioch facility with customers? 22 A. Yes, what we call plant tours. 23 Q. Was that a common occurrence? It wasn't 24 something you did once or twice in your career? 25 A. Oh, no, it was practically monthly. Aiken & Welch Court Reporters 133 1 Q. He goes on to state in paragraph 6, "At 2 the time that Mr. Crosby took these tours, pallets 3 with sacks labeled asbestos would have been visibly 4 present and could have been seen by Mr. Crosby during 5 the plant tours". 6 Did I readthat sentencecorrectly? 7 A. Yes. 8 Q. Is ittrue that the various constituents 9 used to formulate the products would have been there 10 set out in the open waiting to be put together to make 11 the products? 12 MR. FERNANDEZ: Calls for speculation. If you 13 have a memory of that, go ahead and answer, but you 14 should not speculate. If you don't know, you should 15 say you don't know. 16 MR. PETTY: Q. I'm just asking you: Going 17 through the manufacturing plant, were the various 18 components used to make the product there sitting out 19 in the open? 20 A. Yes. 21 Q. So if you were on a tour, you have would 22 have been able to see to the extent there was labeling 23 on the components just what there was there; correct?. 24 MR. BERGMAN: Objection. Speculation. 25 THE WITNESS: Possibly. Aiken & Welch Court Reporters 134 1 MR. PETTY: Q. Now, I would like to read the 2 seventh paragraph that says, "Likewise,. I recall Mr. 3 Crosby visiting the research and development lab at 4 Antioch where asbestos was kept in clearly labeled 5 containers." 6 Did I accurately read that paragraph? 7 A. Yes. 8 Q. And is that a true statement? Did you 9 from time to time visit the research and development 10 lab in Antioch? 11 A. Yes. 12 Q. Do you recall there being asbestos there 13 that was stored in clearly labeled containers? 14 A. No. 15 Q. Do you recall anything about different 16 components or chemicals or whatever it was being 17 stored there in containers? . 18 A. No. 19 Q. So you don't recallanything about any 20 constituents of the products that may have been stored 21 there? . 22 A. No. 23 Q. Now, I'd like to direct your attention to 24 paragraph 9. He states, "Brent Crosby's job title did 25 not necessarily involve him in the management decision Aiken & Welch Court Reporters 135 1 regarding product formulations and caution labels." 2 Is that a true statement? 3 A. Yes. 4 Q. And he goes ontostate, "Therefore he 5 would not have had personalknowledge of anycompany 6 decisions regarding product formulations and caution 7 labels." 8 I think you agreed to that earlier; did you not? 9 A. Right. 10 MR. PETTY: If I could just raise the issue, I 11 don't know about break. I would probably have another 12 half hour or 45 minutes. Is now is a good time for a 13 break? Or if you want to plug on, and you know how 14 these things go, it could be an hour. 15 MR. BERGMAN: I have some, too. 16 MR. PETTY: Do you want to take a lunch break 17 now and come back in 45 minutes or something? 18 MR. FERNANDEZ: Is that okay with you? A '.. ` 19 THE WITNESS: Yes, that's fine. 20 MR. PETTY: On the videotape here, we are now 21 going to go off the record s<p the witness and counsel 22 can have a lunch break. 23 THE VIDEOGRAPHER: This ends videotape No. 2 in 24 the deposition of Brentwood Crosby. It is 12:32 p.m. 25 We are now off the record. Aiken & Welch Court Reporters 136 1 (Lunch break taken.) 2 THE VIDEOGRAPHER: This begins videotape No.3 in 3 the deposition of Brentwood Crosby. It is 1:38 p.m. 4 We are back on the record. 5 Counsel, you may continue. 6 MR. PETTY: Thank you. 7 Q. Mr. Crosby, did you have a nice lunch? 8 A. Yes. 9 Q. Good. Before I move on, I want to ask 10 just a few more questions to try to help us date the 11 conversations that we talked about that you had with 12 George Kirk. And one thing we know is that it 13 occurred after you got transferred back to the Kaiser 14 Center; correct? 15 A. Right. . 16 Q. And when the conversation occurred, was 17 your position district sales manager? 18 A. Yes. &: * 19 Q. Let me ask you a few other things. 20 Did you start with the company on February 1, 21 1960? ,, 22 A. Yes. 23 Q. And was your last date with the company 24 April 1, 1978? 25 A. April 3rd, I think. Aiken & Welch Court Reporters 137 1 Q. And when you started with the company, was 2 your first position in technical sales? Was that your 3 title? 4 A. Right. 5 Q. Did you gradually progress through the 6 years ? 7 A. . Yes. 8 Q. Did the progression lead you to become a 9 line salesman, and then a salesman, and then a 10 technical representative? 11 A. No. I was a tech rep first. , 12 Q. And then you were a line salesman? 13 A. Then I had a territory, right. 14 Q. And then ultimately you worked up to a 15 position as an area sales manager? 16 A. Right. 17 Q. .And then ultimately you then were promoted 18 to become a district manager? . i*V * 19 A. Right. 20 Q. District sales manager? 21 A. 1965. 22 Q. What I want to turn to next is when Mr. 23 Bergman was asking you questions in Seattle in January 24 of 1999, earlier this year, .do you recall him asking 25 you some questions about a Bob Costa? Aiken & Welch Court Reporters 138 1 A. Yes. 2 Q. And Mr. Costa, he was anupper level 3 management person at Kaiser; correct? 4 A. Vice president and general manager, right. 5 Q. And do you recall testifyingat page 58 of 6 your deposition that you were unaware of any 7 discussions among Kaiser Gypsum senior management that 8 warnings needed to be placed on asbestos-containing 9 products ? 10 A. That's right. 11 (Document marked Kaiser Gypsum 12 Exhibit No. 10 for 13 Identification.) 14 MR. PETTY: Q. I would like to hand you what 15 has been marked as Kaiser Gypsum Exhibit No. 10 and 16 ask you to take a moment to study that. 17 MR. BERGMAN: Which number is this? 18 MR. PETTY: This is Kaiser Gypsum Exhibit No. 19 10 . 20 MR. BERGMAN: The exhibit refers to an attached 21 document. Is that one that was intended to be given 22 to the witness as well? 23 MR. PETTY: I do not have the attached document. 24 At the time this document was located, apparently the 25 attached document was not with it. I don't know that Aiken & Welch Court Reporters 139 1 for a fact, but at least the document I received is 2 what we're looking at. 3 THE WITNESS: Okay. 4 MR. PETTY: Q. Have you had an opportunity to 5 review Kaiser Gypsum Exhibit No. 10, sir? 6 A. Yes. 7 Q. Does it appear to be a letter sent by Mr. 8 Robert A..Costa, vice president and general manager? -9 A. It appears to be, yeah. 10 Q. The date is April 5, 1974? 11 A. Yes. 12 Q. Does it appear to be printed on the Kaiser 13 Gypsum letterhead that was being used at that time? 14 A. Yes. . 15 Q. And if you'll look at the person to which 16 Mr. Costa directed his letter, he's identified as the 17 executive vice president of the Gypsum Association. 18 Do you know what the Gypsum Association was? 19 A. Yes. 20 Q. Was that the trade organization for 21 companies that made products, like Kaiser Gypsum made? 22 A. Right. 23 Q. Products that used gypsum in them? 24 A. Uh-huh. 25 Q. Now, from your review of Kaiser Gypsum Aiken & Welch Court Reporters 140 1 Exhibit No. 10, isn't it apparent that Mr. Costa was 2 telling the Gypsum Association that it was Kaiser 3 Gypsum's position that the companies in the industry 4 should be labeling joint compounds containing asbestos 5 in strict accordance with OS-HA regulations? 6 MR. BERGMAN: Objection. Foundation. 7 MR. FERNANDEZ: Assumes facts not in evidence 8 that this letter is an authentic letter. My client 9 has no information as to that effect. If you want to 10 preface your question assuming - 11 MR. PETTY: You can consider it so prefaced. 12 MR. FERNANDEZ: Do you understand the question? 13 Assuming this is an accurate letter from Kaiser 14 Gypsum. 15 THE WITNESS: Not signed. 16 MR. FERNANDEZ: What are you asking him about 17 it? 18 MR. PETTY: I'm asking him if his review of the < t\. 19 letter provides him information as to what the 20 position of the company was with respect to putting 21 labels on asbestos-containing joint compound. 22 THE WITNESS: Yes. 23 MR. PETTY: Q. And what was the company's 24 position at least in April of 1974? 25 MR. BERGMAN: Objection. Foundation. The Aiken & Welch Court Reporters s ;ence correctly in t| 1 .on is that we should lal asbestos in strict accoj 5 and are doing so on oui [ read that sentence corj | PERNANDEZ: I'll stipulaj ice correctly, Counsel. ; tflTNESS: Are you referrj PETTY: Paragraph 2 in ti WITNESS: Yes. j PETTY: Q. Would you agi :his letter it* does appeq Lc"' level management had s and taken a position or 3ERGMAN: Objection. For n. Vague and ambiguous.; FERNANDEZ: Also, it's ar l PETTY: Can you repeat tlj ur objections stated so tj ar the question and provil e on? j WITNESS: Repeat the ques P^tju^y ; She's going to dc Aiken & Wel c h Court Rei 1 document speaks for itself. 2 MR. FERNANDEZ: And calls fo 3 part of the witness. The document 4 itself. 5 MR. PETTY: Q. You're getti 6 the objections; aren't you, sir? 7 A. Well, and your questio 8 Q. I'll try to clarify my 9 can't control the objections. 10 From this letter - 11 MR. FERNANDEZ: You can cont 12 Counsel, by asking good questions. 13 MR. PETTY: I would ask you 14 Counsel. I thought we were doing 15 MR. FERNANDEZ: I thought we 16 you want to editorialize, I can dc 17 MR. PETTY: Here you are aga 18 MR. FERNANDEZ: What's good 19 good for the gander. 20 .MR. PETTY: Well , I'm not a 21 gander, so... 22 MR. FERNANDEZ: Maybe you si 23 MR. PETTY: You do in the Si 24 MR. FERNANDEZ: Well, you 'r< 25 MR. PETTY: Q. Let me ask ; Aiken & Welch Court R 143 1 MR. FERNANDEZ: I'll interpose a further 2 objection. As posed, the question is unfair because 3 the paragraph you're asking him about - 4 MR. PETTY: Is this an objection as to form? 5 MR. FERNANDEZ: It lacks foundation that this 6 document is an incomplete document. There is an 7 attachment that goes with this document. The 8 paragraph that talks about supposedly what the 9 company's policy is references a specific document 10 that has details supporting some position that is 11 relevant to your question. 12 My client has not been provided with that 13 document. So as posed, that question is very unfair. 14 You're asking him to give his opinion about what was 15 in somebody's mind based on an incomplete letter, and 16 that's unfair. 17 MR. PETTY: Are you going to instruct him not to 18 answer or may we now proceed with what we've been 19 trying to proceed with, which is the deposition of 20 your client. 21 MR. FERNANDEZ: I made ^my objection, Counsel. 22 (Record read.) 23 THE WITNESS: Yes, you read it correctly. 24 MR. PETTY: Q. Let me move on to another 25 subject, sir. And we can put that exhibit down for a Aiken & Welch Court Reporters c'^Ntrips or did you a 7 !i They would usually So on some of thes >me to Reno every four ; the times when you mi 1 one of his homes that > Right. : And did you -- yoi Lm after work on every p . No. . v It was just on sor t ppe.ved to work in with . Right. . -- you would go oi ow, when you went to v. d be doing something or re specifically to hel| ction or just to have hing? . Social. . And so you did no p him pound nails? . No. i Aiken & Welch Cou 1 moment. 2 When you gave testimony in Jam 3 you talked to us about occasions whei 4 Mr. John Crum after work hours at son 5 that he was building in Nevada, the I 6 correct? 7 A. Yes. 8 Q. Let me see if I understar 9 that you would make these visits to 1 10 were you there on company business b; 11 A. Yes. 12 Q. And so from time to time 13 that area and call on John Crum or dc 14 that area on behalf of the company; c 15 A. Right. 16 Q. About how frequently worn 17 A. Every month or month and 18 Q. So every four to six wee) 4 \. 19 yourself in John Crum's backyard, so 20 correct? 21 A. Well, in his territory. 22 Q. And at the time you were 23 California; correct? 24 A. Sacramento, right. 25 Q. And on those occasions, < Aiken & Welch Court Repo 146 1 Q. Or saw lumber or doanything? 2 A. No. 3 Q. Now, Mr. Crum, we talked to him; we took 4 some testimony from him at his home last year, and he 5 testified that in building a typical house he handled 6 nearly everything from the ground breaking right up to 7 the finish work, and that the entire process usually 8 took him one to two years. 9 Was that consistent with your observations of 10 his home construction? 11 A. Yes. 12 Q. And Mr. Crum testified that out of that 13 process of one to two years of building a home the 14 hanging and the taping of the wallboard typically took 15 only two or three weeks out of that time frame. Is 16 that consistent with your knowledge of home 17 construction and .the way he did it? . 18 A. Yes. 19 Q. Now, I take it if you happened to be in 20 Reno on Kaiser Gypsum business, and it was one of 21 those occasions where you went to visit him and 22 socialize after hours, I would take it that on most of 23 those visits he wouldn't actually be in the active 24 phase of the work doing the drywall work; correct? 25 A. Correct. Aiken & Welch Court Reporters 147 1 Q. Do you remember any particular instance 2 when you were there when he was actually doing the 3 drywall work? 4 A. Yes . 5 Q. Can you pinpoint that to any of the 6 particular homes? Do you remember the addresses, any 7 characteristics about the home? 8 A. Well, they were in Washoe Valley. The ? community was called Washoe Lake area, which is 10 halfway between Reno and Carson City. 11 Q. Now, from the testimony we took from Mr. 12 Crum, I understood that he built these homes for the 13 last couple of decades, right up through 1998, in 14 fact; is that your understanding? 15 A Yes . 16 Q And when you and he were both working for 17 Domtar, did you continue to go visit him in the Reno 18 area? - <*,,. * 19 A. Yes. 20 Q. So is it fair to assume that some of these 21 occasions where you went to visit him at the house - 22 at the houses he was building were times when you were 23 both employed by Domtar? 24 A. Right. 25 Q . And some of them wereoccasions were when Aiken & Welch Court Reporters 148 1 you were both employed by Kaiser Gypsum? 2 A. Right. 3 Q. On the occasions thatyou recall to go 4 visit him when he was in the active drywa11 phase of 5 the construction, do you recall if you were Kaiser 6 Gypsum couple of guys or if you were both Domtar guys 7 at that point? 8 A. Both. 9 Q- So you recallvisitinghim when he was 10 doing -- when he was at the drywall phase of the work 11 when you were both at Kaiser Gypsum, and you also 12 recall visiting him when he was doing that kind of 13 work when you were both employed by Domtar? 14 A.. Well, when you would call a visitation, 15 what would happen, when I would go to Reno, John v/ould 16 pick me up at my hotel or motel, and we would travel 17 the day together. Usually when I would stop by his 18 place in Washoe Lake was if we were workina in the 19 Carson City area or South Lake Tahoe, and we were 20 articulating back to my place in Reno. 21 Q- So would it be what? Maybe a couple of 22 times a year that you would go out and visit him on 23 the houses that he was actually building where your 24 itinerary took you through Washoe Valley? 25 A. Two or more. Aiken & Welch Court Reporters 149 1 Q. Now, are you able to give any further 2 identification or details as to the home -- I want to 3 focus now on the time when you were both Kaiser Gypsum 4 employees, and you went to visit him at one of these 5 homes that he was building, and it happened to be at 6 the time of the drywall work. Can you remember how 7 many bedrooms or how many bathrooms or if the home had 8 an attached garage or a detached garage, any of those 9 kind of details? 10 A. Well, they were a minimum of two bedroom 11 and up to four. 12 Q. Can you provide any more details beyond 13 that, that sort of range of homes? And if you can't, 14 it's understandable. 15 A. No. 16 Q. Okay. Let me ask you this: At the time 17 that you would have gone to visit him, and you went 18 out and called on the customers, and then you visited 19 the home while they were doing drywall work, would 20 this have been when you were working out of Oakland as 21 a district sales manager? 22 A. Sacramento and Oakland. 23 Q. Do you have a specific recollection of 24 working out of Sacramento and visitinghim on one of 25 the homes where he was in the drywall phase or are you Aiken & Welch Court Reporters 150 1 saying it was one or the other, and you're not sure? 2 A. Normally, when I would be with John, we 3 would both be in our business clothes, and he wouldn't 4 actually be in there pounding nails or hanging 5 wallboard. We would just stop by on our way through 6 Washoe Valley because John's working on the houses was 7 basically done prior to a workday and after. He was a 8 very industrious guy. He would get up real early in 9 the morning, and he and his son would go down and work 10 on a project. He would then change and start the 11 coverage of his territory. . 12 Q. Let me ask you this, maybe that will help 13 us date it a little better: The times that you're 14 thinking about when you went to visit him, you were on 15 a jobsite, it was drywall. work that was the active 16 phase of construction, and his son was helping him, 17 about how old was his son? Was he out of high school 18 yet or a teenager? 19 A. Well, he was -- I think J.D. was -- he was 20 in high school part of it, and then he graduated from 21 high school and stayed with his dad. 22 Q. Okay. It would have been when he was 15 23 and 16 years old and after that? 24 A. Uh-huh. 25 Q. I want to ask you some other questions Aiken & Welch Court Reporters ' ") oned that. alked to you about some cts? 152 i would like to take about a ; e can go off record and off ; ER: It is 1:59 p.m. We are now j aken .) ER: It is 2:23 p.m. We are back ' J 1 I! .ay continue . | ank you. ! by, before I finish up, I just I nderstanding a little bit of your j regression through the 18 years ! . where you were based during those . started in February of 1960, cally based? Where were you orking out of your home or out of a t ? Welch Court Reporters 1 about Mr. Crum. 2 Sir, isn't it true 3 Mr. Crum had taken ill 1 4 visited him, you spoke w 5 A. Yes 6 Q. And when you 7 tell you about his cance 8 it? 9 A. He just call 10 hell outof me. He saic 11 I said, "What the 12 John? We're all dying.' 13 "No," he says, "I' 14 my chest." He didn't rc 15 So I told him I wc 16 could break free, I wenl 17 Q. And did he 1 18- learned from his doctor: 19 of cancer he had and ho' 2 0. him? 21 A. Well, he sa 22 products. 23 Q. Isn't it tr 24 about that, he discusse 25 employment of his up in Aiken & Wei A. My i about the time Q. Whf year do you rer A. I 1 1961. j Q. Was you worked out ! A. Yeij Q. And ! Center to work A. Sad Q. And Sacramento? I A. Se\j Q. And 1970? I A. Bad i Q. Anc Center from 17C A. Unt E MS. JACKS Antioch? Ail 1 A. Kaiser office- at I think it was : 2 Q. And where isthat? 3 A. In Oakland. 4 Q. Right here in Oakland? 5 A. Yes. 6 Q. And for how many years did you r 7 working out of that office? 8 A. I think only about six months. 9 Q. And then about six months later 10 a line salesman; is that true? 11 A. Yes. 12 Q. And is that when you transferred 13 you were no longer working out of the Grand 14 here in Oakland? 15 A. Right. 16 Q. Where were you working out of tl 17 ' A. My home in Alameda. ' 18 Q.<#. Your `home was where. in Alameda? 19 A. It was on Laurel Street. 20 Q. And then for how long did you wc 21 your home on Laurel Street in Alameda while 22 continued in sales, for how many years? 23 A. Oh, for approximately a year. 24 Q. And then where did you -- did y< 25 position change in that you moved out of th' Aiken & Welch Court Reporters 155 1 Yes. Yes. For a couple of years we 2 transferred the regional offices to Antioch, yes. 3 Q- What years were those? 4 A. I would say '71 , '72, in that area. 5 MS . JACKSON: Thanks, Ken. 6 EXAMINATION BY MR. PETTY 7 MR. PETTY: Q. Now, when you talked about 8 conversation you had with Mr. Kirk, was it after you 9 returned to the Kaiser Center from Antioch? Some 10 point between then and when the company was bought out 11 by Domtar 12 A. Yes. It was*in about the middle of 1970. 13 Q. Do you remember replacing Mr. Alesandro? 14 A. Yes . 15 Q. Did you ever take his position? 16 A. Yes . 17 Q. What was the title of that position 18 when - a*,. \ 19 A. Regional manager. 20 Q. Were you the regional manager when you had 21 the conversation with George rKirk? 22 No. I think I was still a district 23 manager. 24 MR. PETTY: Kaiser Gypsum has no further 25 questions of Mr. Crosby. Aiken & Welch Court Reporters 156 1 MR. BERGMAN: I'll need about three to four 2 minutes to get put together. 3 THE VIDEOGRAPHER: It is 2:27 p.m. We are now 4 off the record. 5 (Brief recess taken.) 6 THE VIDEOGRAPHER: It is 2:29 p.m. We are back 7 on the record. 8 Counsel, you may begin. 9 EXAMINATION BY MR. BERGMAN 10 MR. BERGMAN: Q. Mr. Crosby, when did you serve 11 in the Marine Corps? 12 MR. PETTY: Object to the form. Beyond the 13 scope. 14 THE WITNESS: 1944 to 1946 approximately. 15 MR. BERGMAN: Q. Is that service that you're 16 proud of, sir? 17 A. Yes. 18 MR. PETTY: Same^ obj ectio.n. May I have a 19 continuing objection to this line? 20 MR. BERGMAN: Yes. 21 Q- Sir, when you served in the Marine Corps, 22 was honesty and integrity a value that was important 23 to you? 24 A. Yes. 25 Q. When you worked as a salesman, sir, was Aiken & Welch Court Reporters 157 1 honesty and integrity something that was important to 2 you? 3 A. Absolutely. ' 4 Q. When you were a district manager for 5 Kaiser Gypsum, was honesty and integrity something 6 that was important to you? 7 A. Absolutely. 8 Q- How about a regional manager? 9 A. Absolutely. 10 Q. Did you value your relationship with your 11 customers ? 12 A. Yes . 13 Q. Was credibility an important thing for you 14 to have in your dealings with your customers? 15 A. Very much so. 16 Q. Sir, when asked by Mr. Petty whether you 17 would help out John Crum from time to time, what kind 18 of things would you do for him? 19 A. Well, basically on a territory visitation 20 he would accompany the salesmen on calls to his key 21 accounts and try to bolster the Kaiser image, Kaiser 22 product and service. That's basically it. 23 Q. In the course of helping John Crum out, 24 sir, did you ever lie for him? 25 A. No. Aiken & Welch Court Reporters 158 1 Q. Would you ever lie for him? 2 A. No. 3 Q. Would you ever lie for anybody? 4 A. No. 5 Q. You've seen a lot of documents during the 6 course of your deposition here this morning. I don't 7 want to ask you about any documents. I want to ask 8 you about what you actually remember. . ,9 I'm going to ask you, first of all, in the 10 course of your work, did you actually see bags and 11 buckets of Kaiser Gypsum joint compounds? 12 A. Not to my recollection. 13 Q. Did you ever undertake tours of the 14 manufacturing facilities where Kaiser Gypsum joint 15 compounds were made? 16 A. Yes. 17 Q. And during the course of those tours, did 18 you ever see bags of joint compound? 19 A. Yes. 20 Q. Did you ever see any warnings on those 21 bags of joint compound? , 22 A. Not that I can remember. 23 Q. In the course of your work, sir, as a 24 district sales representative, was it ever necessary 25 to conduct demonstrations of Kaiser Gypsum joint Aiken & Welch Court Reporters 159 1 compounds ? 2 A. Yes. 3 Q. Could you describe for us how these 4 demonstrations would go about? 5 MR. PETTY: I'm going to object. This is beyond 6 the scope. 7 MR. BERGMAN: You can have a continuing 8 objection on that, Counsel. 9 MR. PETTY: Thank you. 10 THE WITNESS: The salesman would approach a 11 potential customer that he wanted to sell our products 12 to, and in many cases they are using a competitive 13 product, and your ploy was to offer him some of* our 14 material to use to gauge between the product he was 15 using and our product. Was ours equal or better? 16 And we would donate product to the customer 17 after the salesman had prepared what we call a demo 18 request and got it signed by the appropriate people, 19 and the material would be taken out of the inventory 20 at Antioch and delivered to the field.' 21 MR. BERGMAN: Q. And by "material," what do you 22 mean, sir? 23 A. Well, whether it was taping or topping or 24 K-spray or radiant heat compound. 25 Q. Would you be present when these Aiken & Welch Court Reporters 160 1 demonstrations were conducted, sir? 2 A. Some of them. 3 Q. Can you describe the type of work that 4 would be done during these demonstrations? 5 A. Well, normally the contractor would hang a 6 room, put the wallboard up, and then they would be 7 prepared to tape and then top. We would give them the 8 material. They would mix it if it was powder in a 9 five-gallon bucket, and then they would put it in a 10 trowel and use tape and tape the joints. 11 After that had an opportunity to dry, they would 12 rough sand it and then p*ut on the finishing coat 13 through the same process of taking finishing compound 14 and putting it in a bucket and mixing it to a - 15 Q. Why in your position, sir, was it 16 necessary for you to be present while these 17 demonstrations were going on? ' 18 A. Well, it was just good business that we A\ * 19 showed an interest in our customer and in our product. 20 As I say, I didn't go to every demonstration 21 that was made, but a good mariy. 22 MR. BERGMAN: Let me make what we'll call Kaiser 23 Gypsum Exhibit 12. Is that what we're on? 24 MR. PETTY: This is not a Kaiser Gypsum exhibit. 25 This can be plaintiff exhibit whatever the number is. Aiken & Welch Court Reporters 161 1 MR. BERGMAN: Whatever you prefer. 2 MR. PETTY: Your exhibits were marked 1 through 3 8 . 4 MR. BERGMAN: We'll make it Plaintiff's Exhibit 5 8, then -- excuse me, 9. 6 (Document marked Plaintiff's 7 Exhibit No. 9 for 8 Identification.) ,9 MR. BERGMAN: Q. Mr. Crosby, I'm going to read 10 from Exhibit 9, which are Kaiser Gypsum's sworn 11 Answers to Interrogatories in litigation pending in 12 San Francisco County describing the labels allegedly 13 affixed to Kaiser Gypsum products. 14 "Initially the labels were 4 inches by 8 inches 15 in size and had yellow backgrounds with red letters. 16 They were affixed to a bag or container of the product 17 by adhesive in a prominent place. Later as new bags 18 and containers were purchased, the labels were printed 19 onto the side of the bag or container in our belief to 20 have been the same color or colors as the bag, 21 container or the printing thpreon. The warning label 22 as prescribed by OSHA read, 'Caution, contains 23 asbestos fibers. Avoid creating dust. Breathing 24 asbestos may cause serious bodily harm.'" 25 Mr. Crosby, when you were conducting these Aiken & Welch Court Reporters 162 1 demonstrations for Kaiser Gypsum customers, did you 2 ever see warnings such as the ones I just described? 3 A. Not to my recollection. 4 Q. Sir, did you conduct these demonstrations 5 between 1972 and 1975? 6 A. Yes. 7 Q. Regarding the text of these alleged 8 labels, sir, is it possible to finish joint compound 9 without creating dust? 10 A. No. 11 Q. And why is that, sir? 12 A. Because you have to sand it. 13 Q. Is there any way you can sandjoint 14 compound without creating dust? 15 MR. PETTY: Can I have a continuing objection to 16 beyond the scope? 17 THE WITNESS: Not to my knowledge. 18 MR. BERGMAN: Yes, of course. 19 Q. During the examination this morning, you 20 were shown'a can with the Kaiser Gypsum label on it, 21 sir. ; . 22 A. Yes. 23 Q. Do you have any ideawhere that can came 24 from? 25 A. No 'idea . Aiken & Welch Court Reporters 163 1 Q. Do you have any ideawhenit was made? 2 A. No. 3 Q. Do you know whether it was made in 1973 or 4 1993? 5 A. No. 6 Q. During your deposition,you were shown 7 Exhibit 4, which was a document with a distribution 8 list attached to it. Do you know whether that 9 distribution list was attached to the document on the 10 second page of Exhibit 4? Let me strike that. 11 If you would look at the second page of Exhibit 12 4, does your name appear anywhere on that second page? 13 A. No. 14 Q. Do you have any idea whether or not or 15 when the first page of Exhibit 4 was affixed to the 16 second page of Exhibit 4? ' 17 A. I have no idea. ' 18 Q. I'm going to refer toExhibit 9, Kaiser 19 Gypsum Exhibit 9, and in doing so I'm not waiving my 20 previous objections to that document. 21 Mr. Kirk indicated in paragraph 6 of Exhibit 9 22 that you'd undertake tours of the manufacturing 23 facility at Antioch. 24 A. Right. 25 Q. Was that something that you did fairly Aiken & Welch Court Reporters 164 1 often, sir? 2 A. Oh, quarterly probably. 3 Q. When you'd undertake tours in Antioch, 4 sir, was production going on? 5 A. Yes. 6 Q. And did you undertake tours of the Antioch 7 facility prior to 1975? 8 A. Yes. 9 Q. At any time, sir, did youwear any 10 respiratory protection when you were undertaking these 11 tours ? 12 A. No. 13 Q. And was -- did anybody with whom you were 14 conducting these tours with wear respiratory 15 protection? 16 A. No. 17 Q. Was anybody in the plant at Antioch 18 wearing respiratory protection? 19 MR. PETTY: Object to form. 20 MR. BERGMAN: Q. Did you see anyone at the 21 plant in Antioch ever wearing any respiratory 22 protection prior to 1975? 23 A. Very minimal, if any. 24 Q. You wereshown Exhibit 8 by Mr. Petty. 25 I'm not going to ask you to read the whole document Aiken & Welch Court Reporters 165 1 again with me, sir. I'm just going to ask you a few 2 questions based upon it, although if you feel the need 3 to read it, of course, I'll be happy to provide you 4 with that opportunity. 5 The document states on the first page of Exhibit 6 8, "The attached draft has been prepared as a proposed 7 merchandising bulletin. This would disseminate the 8 information to our sales personnel and would be 9 available through our salespeople to contractors." 10 If you could look at the second page of Exhibit 11 8, and my question to you is, sir, did you ever see a 12 merchandising bulletin, not a draft, but a 13 merchandising bulletin such as the one attached to 14 Exhibit 8? 15 A. Not to my recollection. 16 Q. Sir, I'm going to just read a few things 17 from Exhibit 8 from this draft document. It states on 18 page 2 of the document: rfv "During manufacture of these 19 products, OSHA has several requirements including use 20 of proper respirators by workers." 21 When you were undertaking tours of the Antioch 22 facility, did you see workers wearing respirators? 23 HR. PETTY: Object to the form of the question. 24 THE WITNESS: Not to my recollection. 25 MR. BERGMAN: Q. Moving down the second page of Aiken & Welch Court Reporters 166 1 the document attached to Exhibit 8, it states, "During 2 mixing, spray application and sanding of these . 3 products, OSHA requires workers to use proper 4 respirators." And it says, "Contractors." 5 Sir, at any time were you told to advise 6 contractors to wear respirators while sanding Kaiser 7 Gypsum joint compounds? 8 A. Not to my recollection. 9 Q. Were you ever told by anybody at Kaiser 10 Gypsum to advise your customers to wear respirators 11 while mixing Kaiser Gypsum K spray? 12 A. No. * 13 Q. Sir, if you had been provided that 14 information, if you had been instructed to tell your 15 customers to wear respirators while sanding Kaiser 16 Gypsum joint compounds, would that have been an 17 instruction that'you would have followed? ' 18 MR. PETTY: Object to form. Calls for 19 speculation. 20 THE WITNESS: Yes. 21 MR. BERGMAN: Q. I wapt to again refer to 22 Exhibit 9 without waiving my aforestated objections. 23 Mr. Kirk states in his affidavit that he recalls that 24 you toured the Antioch manufacturing facility with 25 Kaiser Gypsum customers. Aiken & Welch Court Reporters 167 1 A.. True. 2 Q. Why would you take customers on tours of 3 the manufacturing plants? 4 A. Well, number one, it was an interest that 5 we had in our customers to see our products being 6 manufactured so they'd become more attuned to them. 7 Q. Did you take -- did you -- when Kaiser 8 Gypsum customers would tour the manufacturing 9 facilities, would they meet with any of the 10 individuals at the plant? 1.1 A. Yes. Usually we'd attempt to get in a 12 specific area a workman 'from that area that was fully 13 versed in the product, whether it was the board line, 14 the accessory plant or the warehousing of material and 15 the loading and unloading of trucks. 16 Yes, we would request that we have plant 17 personnel with us. 18 Q. In 1970, sir, did you take any Kaiser 19 Gypsum customers on tours of the Antioch facility? 20 A. Very likely. 21 Q. And do you recall any discussions with Mr. 22 Raffaelli during any of these tours in the 1970-'71 23 time period? 24 A. Yes. Al- was -- in fact, we used A1 on 25 customer complaints. Aiken & Welch Court Reporters 168 1 Q. During any of these tours -- let me ask 2 you about the period 1970 to 1971. During any of 3 these customer tours of the Antioch facilities, did 4 any customers express interest or concern regarding 5 asbestos in Kaiser Gypsum products? 6 A. I believe so. 7 MR. PETTY: Object to the form of the question. 8 MR. BERGMAN: Q. What was the nature of those 9 concerns, sir? 10 MR. PETTY: Same objection. 11 MR. BERGMAN: That youremember. 12 THE WITNESS: Well, there was quite a bit of 13 publicity at the time that asbestos was considered a 14 hazard to your health, and so they would specifically 15 ask us do we have asbestos in our products that could 16 be harmful to them. 17 MR. BERGMAN: Q. Were those -- during these 18 plant tours, during this, sir, were any concerns ever 19 expressed regarding asbestos to Mr. Raffaelli? 20 MR. PETTY: Object to form. Calls for hearsay. 21 THE WITNESS: Yes. i 22 MR. BERGMAN: Q. And can you describe those 23 concerns? Can you describe the conversation to the 24 best of your ability? Understanding giving counsel a 25 standing objection for hearsay. Aiken & Welch Court Reporters 165 1 again with me, sir. I'm just going to ask you a few 2 questions based upon it, although if you feel the need 3 to read it, of course, I'll be happy to provide you 4 with that opportunity. 5 The document states on the first page of Exhibit 6 8, "The attached draft has been prepared as a proposed 7 merchandising bulletin. This would disseminate the 8 information to our sales personnel and would be 9 available through our salespeople to contractors." 10 If you could look at the second page of Exhibit 11 8, and my question to you is, sir, did you ever see a 12 merchandising bulletin, not a draft, but a 13 merchandising bulletin such as the one attached to 14 Exhibit 8? 15 A. Not to my recollection. 16 Q. Sir, I'm going to just read a few things 17 from Exhibit 8 from this draft document. It states on 18 page 2 of the document: "During manufacture of these 19 products, OSHA has several requirements including use 20 of proper respirators by workers." 21 When you were undertaking tours of the Antioch 22 facility, did you see workers wearing respirators? 23 MR. PETTY: Object to the form of the question. 24 THE WITNESS: Not to my recollection. 25 MR. BERGMAN: Q. Moving down the second page of Aiken & Welch Court Reporters 166 1 the document attached to Exhibit 8, it states, "During 2 mixing, spray application and sanding of these 3 products, OSHA requires workers to use proper 4 respirators." And it says, "Contractors." 5 Sir, at any time were you told to advise 6 contractors to wear respirators while sanding Kaiser 7 Gypsum joint compounds? 8 A. Not to my recollection. 9 Q. Were you ever told by anybody at Kaiser 10 Gypsum to advise your customers to wear respirators 11 while mixing Kaiser Gypsum K spray? 12 A. No. * . 13 Q. Sir, if you had been provided that 14 information, if you had been instructed to tell your 15 customers to wear respirators while sanding Kaiser 16 Gypsum joint compounds, would that have been an 17 instruction that you would have followed? 18 MR. PETTY: Object to form. Calls for 19 speculation. 20 THE WITNESS: Yes. 21 MR. BERGMAN: Q. I want to again refer to 22 Exhibit 9 without waiving my aforestated objections. 23 Mr. Kirk states in his affidavit that he recalls that 24 you toured the Antioch manufacturing facility with 25 Kaiser Gypsum customers. Aiken & Welch Court Reporters 167 1 A.. True. 2 Q. Why would you take customers on tours of 3 the manufacturing plants? 4 A. Well, number one, it was an interest that 5 we had in our customers to see our products being 6 manufactured so they'd become more attuned to them. 7 Q. Did you take -- did you -- when Kaiser 8 Gypsum customers would tour the manufacturing 9 facilities, would they meet with any of the 10 individuals at the plant? 11 A. Yes. Usually we'd attempt to get in a 12 specific area a workman *from that area that was fully 13 versed in the product, whether it was the board line, 14 the accessory plant or the warehousing of material and 15 the loading and unloading of trucks. 16 Yes, we would request that we have plant 17 personnel with us. 18 Q. In 1970, sir, did you take any Kaiser 19 Gypsum customers on tours of the Antioch facility? 20 A. Very likely. 21 Q. And do you recall any discussions with Mr. 22 Raffaelli during any of these tours in the 1970-'71 23 time period? 24 A. Yes. A1 was -- in fact, we used A1 on 25 customer complaints. Aiken & Welch Court Reporters 168 1 Q. During any of these tours -- let me ask 2 you about the period 1970 to 1971. During any of 3 these customer tours of the Antioch facilities, did 4 any customers express interest or concern regarding 5 asbestos in Kaiser Gypsum products? 6 A. I believe so. 7 MR. PETTY: Object to the form of the question. 8 MR. BERGMAN: Q. What was the nature of those 9 concerns, sir? 10 MR. PETTY: Same objection. 11 MR. BERGMAN: That you remember. 12 THE WITNESS: Well, there was quite a bit of 13 publicity at the time that asbestos was considered a 14 hazard to your health, and so they would specifically 15 ask us do we have asbestos in our products that could 16 be harmful to them. 17 MR.. BERGMAN: Q. Were those -- during these. 18 plant tours, during this, sir, were any concerns ever . * 19 expressed regarding asbestos to Mr. Raffaelli? 20 MR. PETTY: Object to form. Calls for hearsay. 21 THE WITNESS: Yes. ; 22 MR. BERGMAN: Q. And can you describe those 23 concerns? Can you describe the conversation to the 24 best of your ability? Understanding giving counsel a 25 standing objection for hearsay. . Aiken & Welch Court Reporters 169 1 A. Well, they were fairly general insomuch as 2 because he was our specialist on accessory products, 3 he would ask "How much?" or "Do you put asbestos into 4 your accessory products? And I can remember, asking A1 5 that directly. 6 Q. What, if anything, did Mr. Raffaelli say 7 in response to the customer inquiry at the Antioch 8 plant concerning asbestos in Kaiser Gypsum products? 9 MR. PETTY: Same objections. 10 THE WITNESS: "No." He said, "No. We do not 11 have asbestos in our products." 12 MR. BERGMAN: Q. Did these conversations take 13 place, sir, at the time that you were a district 14 manager for Kaiser Gypsum? 15 A. Yes. 16 MR. BERGMAN: Those are the questions that I 17 have at this time. 18 MR. PETTY: Just give us two minutes. 19 THE VIDEOGRAPHER: It is 2:48 p.m. We are now 20 off the record. 21 (Brief recess taken.) 22 THE VIDEOGRAPHER: It is 2:51 p.m. We are back 23 on the record. 24 Counsel, you may continue. , 25 MR. PETTY: At this point Kaiser Gypsum has no Aiken & Welch Court Reporters 170 1 further questions. Thank you, sir. 2 THE VIDEOGRAPHER: This concludes the deposition 3 of Brentwood Crosby. The present time is 2:52 p.m. 4 The electronic record for this portion of the 5 deposition contains two videotapes. The originals are 6 to be retained by Tele-Video Production Services at 7 3655 Grand Avenue, Oakland, California 94610. 8 Telephone 510-893-0555. Copies are available to 9 interested parties unless otherwise stipulated. 10 Would anyone like copies at this time? 11 MS . JACKSON: Yes. 12 MR . BERGMAN: Yes . 13 MR . PETTY: Just for the stenographic record, 14 I'm not sure that we made this clear, but Exhibit 11 15 is being retained by stipulation of counsel with 16 Jackson & Wallace here in San Francisco, the Kaiser 17 Gypsum Exhibit 11. 18 (Whereupon, the deposition was 4.. . 19 concluded at 3:00 p.m.) 20 21 22 SIGNATURE OF WITNESS 23 2 4 25 Aiken & Welch Court Reporters 171 1 STATE OF CALIFORNIA ) 2 3 COUNTY OF ALAMEDA ) SS . ) 4 5 I, KIMBERLEY RICHARDSON, do hereby certify: 6 That BRENTWOOD CROSBY, in the foregoing 7 deposition named, was present and by me sworn as a 8 witness in the above-entitled action at the time and 9 place therein specified; 10 That said deposition was taken before me at said 11 time and place, and was taken down in shorthand by me, 12 a Certified Shorthand Reporter of the State of 13 California, and was thereafter transcribed into 14 typewriting, and that the foregoing transcript 15 constitutes a full, true and correct report of said 16 deposition and of the proceedings that took place; 17 IN WITNESSWHEREOF, I have hereunder subscribed 18 my hand this 16th day of July 1999. 19 20 21 /, 22 ,KI'MBERLEYR rd-HAR DSON, CSR No. 5915 Sfate o California 23 24 25 Aiken & Welch Court Reporters 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 JOHN E. CRUM and MARILYN J. CRUM, a married couple, 7 Plaintiffs, 8 v. 9 THE E.J. BARTELLS COMPANY; et al,, 10 Defendants. 11 12 No. 98-2-24915-3 SEA AFFIDAVIT OF RICHARD A. MADSEN lOo' 3 13 STATE OF CALIFORNIA ) ) ss. 14 COUNTY OF SAN FRANCISCO ) ' 15 16 I, RICHARD A. MADSEN, declare: 17 1. I was employed with KAISER GYPSUM COMPANY, INC. (hereinafter 18 "KAISER GYPSUM") from 1966 through 1978 when KAISER GYPSUM ceased its 19 operations. While employed with KAISER GYPSUM, my job title was Director of 20 Advertising and Public Relations. 21 2. I was a friend and co-worker of JOHN CRUM and accompanied Brent 22 Crosby to visit Mr. Crum a few weeks prior to his death. 23 3. I recall decedent JOHN CRUM being employed by KAISER GYPSUM as 24 a salesman for the Reno/Tahoe district. 25 4. I am informed and believe that the above-captioned lawsuit was filed 26 against KAISER GYPSUM by JOHN CRUM who alleges exposure to asbestos- 27 containing products. 28 5. As Director of Advertising and Public Relations, it was my responsibility 1 AFFIDAVIT OF RICHARD A.MADSEN -1 1 to supervise the design and order all packaging materials and labels for every product 2 which bore the KAISER GYPSUM name. 3 6. I have been informed that Mr. Brentwood (Brent) Crosby, a former 4 District Sales Manager for KAISER GYPSUM with whom I am personally acquainted, 5 testified recently in deposition that he was unaware of any caution labels on any of the 6 packages of KAISER GYPSUM's asbestos-containing products. 7 7. The statement in deposition by Mr. Crosby that KAISER GYPSUM's 8 asbestos-containing products never contained a caution label is not correct. 9 8. Beginning in 1972, pursuant to OSHA regulations, KAISER GYPSUM 10 placed a caution label on all of its asbestos-containing products. The caution label, as 11 prescribed by OSHA, read, "CAUTION: Contains asbestos fiber; avoid creating dust; 12 breathing asbestos dust may cause serious bodily harm." 13 9. Initially, the above-worded caution was a separate label placed on the 14 packaging of asbestos-containing products. Eventually, as new product packaging was 15 ordered and replenished, the caution label was printed on the packaging itself. As non 16 asbestos product formulations were developed and marketed, the asbestos caution label 17 was replaced with an indication that the product was of a non-asbestos formulation. 18 Ill 19 III . 20 III 21 III 22 /// 23 m 1 24 /// 25 /// 26 /// 27 in 28 /// 2 AFFIDAVIT OF RICHARD A.MADSEN -1 1 10. In the course of his employment, Mr. Crosby was informed by interoffice 2 memoranda of any changes in packaging and labeling, specifically, in reference to 3 asbestos caution labels. 4 I declare under penalty of peijury under the laws of the State of California that the 5 foregoing is true and correct to the best of my knowledge. 6 Signed at San Francisco, California this ^ / ^ ay of _, 1999. 7 8 9 10 11 SUBSCRIBED AND SWORN to before me this by Richard A. Madsen. 12 A. MADSEN day of / i ty/S f I , 1999, 13 14 4^ ^ .A . A . ^ __ 15 JILLHARVEY * COMM. #1119010 ^ NOTARY PlJBUC-CAl.lFORNIA g 16 SAN f RANCISCO COUNTY - MyCow. Ocpires Dec. 5,2000 ~ 17 18 F:\HOME\PJG\MA1L\KAISER400\CRUMVAFFIDAV1.MAD 19 20 21 y d in iw ix y (PRINT NOTARY'S NAME) Notary Public in and for tate of. a California, residing at _ / w d'C H T My commission expires: 22 23 24 25 26 27 28 3 AFFIDAVITOF RICHARD A.MADSEN -1 V* ^. >*K^. '...V- Plant Managers S. R. Witt M. Slavich J. F. Modaff P. D. Orleman G. W. Jam es C. E. Caprye DISTRIBUTION LIST Product Sales Managers E. K. Denning . C. V. Durant J. D. [-lodges Distribution Centers Regional Sales Managers T. C. Donovan A. P. Alessandri J. H. W atson R. P. R ussell - Newark D. L. Hardy - Phoenix L. D. O lsen District Sales Managers G. G. Brown A. R. Oison G. M. Thomas B. F, Crosby W. M. T o rg erso n C. E. Watson J. V. Kelly R. H. Jam es Area Sales Managers D. J. Deya B. T. Asimos D. V. Merante R. H. Ranger J. F. Houser R. L. Nauta A, V. Capone D. V. Merante \ To AT C o pies to S ubject KAISER GYPSUM COMPANY, INC. IN TER-O FFICE M EM ORANDUM See Attached Distribution date May 3, 1973 J. W. B le w c t l R. C. C rowle P. J. Franklin R. W. G rig g II. C. Dupuis C. R. G rim m e 4 R. A. M ad se W. .1. M a r s h a ll FR* K B -928 E. H. S ch ap er G. K. K irk T. V. Smith R. J. Laidlaw PRODUCT IDENTIFICATION FOR PRE-MIX DUAL PURPOSE JOINT COMPOUND AND TOPPING COMPOUND The purchasing department h as.instructed suppliers of packaging for subject, products to convert to the following c o lo r coding effective immediately: 1. D u a l-P u rp o se Joint Compound a. 5 gal. plastic or metal pail. Black pail. White printing. Black top. (White top Atlanta area). b. 4 gal. carton. Natural kraft stock. Red and black printing. 2. Topping Compound a. 5 gal. plastic or metal pail. Black pail. Green printing. Green top. b. 4 gal. carton. Natural kraft stock. Green and black printing. ^ . The above packaging ca rries approved Caution as p re scribed by federal regulations relating to products containing asbestos fibers. - P lease inform your people of these packaging changes. RAM: jw 'i * f ' fflJemoranJum. frront j3 R. A . M A DSEN SYD HENDERSON 5/17/73 A s soon as the plant m anagers advise m e of their req u irem en ts, I 'll le t you know what quantities of la b e ls w e 'll need and where to ship them. Thank you. . 1 .\ . . .. i -~r" C S tro . INTER-OFFICE MEMORANDUM To C. E . Caprye AT J. D. Cassidy J. W. Flannigan D. L. Hardy Copies to W. B lew ett A R.. C. C row le H. C. Dupuis P. J, Franklin G. W. Jam es J. F . Modaff P. D. Orleman R. P. R ussell R. W. Grigg C. R. Grim m e G. B. Kirk E. H. Schaper M. Slavich S. R. Witt J. H. Walton su b je c t ASBESTOS CAUTION LABELS date M ay 17, 1973 from a . Madse at K B-928 Ref: O ccupational, Safety, and Health A ct of 1970 CAUTION CONTAINS ASBESTOS FIBERS AVOID CREATING DUST . / BREATHING ASBESTOS DUST M AY CAUSE SERIOUS BODILY HARM AObcocvuepaltaiobneal l,isSianfectyo,mapnlidanHceeawlthithStFaenddearradlsR2e9guClaFtRion1s91r0e.l9a3tinag. to The above label m ust appear on all K aiser Gypsum Company bags, cartons., containers, etc. which contain products form ulated with a sb esto s fib er. The purchasing departm ent is continuing to instruct suppliers to include the caution label when printing reorders for packaging m a teria ls in order to eventually elim in ate the need to hand affix them at the plants. In the m eantim e, if you have existing unlabelled inventory, please advise me im m ediately of the number of la b els needed at your facility to insure prompt com pliance with the above referen ced federal regula tion. You m ay prefer to accom plish the labelling with a hand stamp which can be procured locally at any stationery store, intention, please advise. Thank you. 7 /;/- ? I Q iU o P . ___ / KAI S K K (i V 1- S M CO M fC A tS E iR -'/`Sr.'t-T PA NY . N ( June 19, 1973 Mr. Jack Sullivan Bennett Industries P. O. Box 34132 San Fran cisco, California 94134 Dear Jack: P er your instructions we have forwarded to your plant a sample container layout for the revised imprinting of one gallon containers of K a ise r Gypsum P r e -M ix 3 P urpose Compound. Copy is essen tia lly the sa m e, but p lea se be advised of the following copy additions and changes in the printing form at. 1. 1 Gallon U. S. Standard M easure" . T h is m ust appear (as indicated) on the lefthand sid e on the low er one-third of the principal display panel. 2. We have repositioned the instruction panel moving the name and a d d r e ss of the company; i. e . , "A P roduct of K a ise r Gypsum Company, I n c ., 300 L akeside D rive, Oakland, Ca. 94604" to the lower one-third of the panel. 3. The a sb e stos caution m ust be printed a s shown on the container. 4. The "Important Note to P urchaser" is to be positioned as indicated. A ` With the exception of Item 4, the above changes reflect the r e quirem ents of federal as well as m ost state regulations. A s you know, this is a rush job. However, I would appreciate review ing a proof prior to printing. ' Thank you for your assista BCC: L. Beck J. W. Blew ett R. W. Grigg G. B. Kirk CC: Mr. Donald A n d erso n Container Industries Inc. Advertising and Sales Promotion K A I S E R C E M E N T 6* G Y P S U M. C O R P O R A T I O N INTER-OFFICE MEMORANDUM i, COPIES TO y L. Beck R. Bridges G. Jam es C. E . Caprye E . K. Denning J. F . Modaff P . D . Orlem an J . M. Schleim er R. L . Muhr D. K. Tudor 0ATE A u gu st 7 , 1975 SUBJECT 62-L B . PRE-M IX JOINT AND TOPPING COMPOUND NON-ASBESTOS LABELS. Self-adhesive la b els for subject product pails and cartons are being shipped to you via surface today as indicated below: D estin a tio n A n tioch D elan co Jacksonville Santa Ana Seattle Q u an tity 10,000 10,000 500 *20,000 10, 000 The new la b e ls a re to be placed o v er the a sb e sto s warning la b el printed on the containers when production at your plant sh ifts to the n on -asbestos product form ulation. - P lease see attached. RAM:mh A ttach . CAUTION ' " C O N TA IN S A SB ESTO S FIBERS AVO ID CREATIN G DUST ' BREATHING A SB ESTO S DUST MAY CAUSE SERIO U S BODILY HARM Above label is in compliance with Federal Regulations relating to Occupational, Safety, and Health Standards 29 CFR 1910.93a. (Red Label attached here) : NEW NON-ASBESTOS' FORMULATION To AT CO PIES TO K A IS L. GYPSUM COMPANY, 1C IN TER-O FFICE M EM ORANDUM ce: G . James C . Caprye J . Modaff M . Slavi ch J . W . Blewett R. C . Crowle H . C . Dupuis / Franklin 1/ R. A . Madsen W . J . Marshall E . H. Schaper J . S . Sheahan T . V . Smith J . E . Toomey J . H . Walton H, L . Weightman date June 27 , 1973 F rom At G . B. K i r k ' ^ ' t ^ KB-1145 S u b ject ASBESTOS With the recent passage of EPA regulations restricting the spray-on application of insulating and fireproofing products containing asbestos, we are beginning to get inquiries from contractors concerning Kaiser Gypsum Texture Products and Radiant Heat Products. These products do contain small amounts of asbestos fiber and are spray-applied on the job. Contractors are anxious to know whether the new EPA regulations restrict or prohibit the spray-on application of these products. . During the past year, John Sheahan has attended EPA meetings and has corresponded with EPA and has now received a letter from EPA headquarters advising that these Kaiser Gypsum products are considered to be decorative materials and are not a major source of asbestos emissions. Therefore, EPA does not include these products in the scope of the new regulations. Therefore, these Kaiser Gypsum products may continue to be spray applied on the job by contractors. In order to clarify the facts concerning the O SH A and EPA regulations concerning asbestos, the attached draft has been prepared as a proposed Merchandising Bulletin. This would disseminate the information to our sales personnel and would be available through our sales people to contractors. /S',. * Please review the attached draft and advise your comments on the draft by July 13. NOTE: Attached to this memo are copies of John Sheahan's correspondence and a copy of the asbestos caution label for your information. It is not intended to attach this material to the Merchandising Bulletin. * G B K :jc Enclosures ?KcuSer up&A fechi bi'FJO, ! i DRAFT ASBESTOS Federal agencies have investigated asbestos and found that it can be a health hazard. Exposure to airborne asbestos of high enough intensity and long enough duration causes lung cancer and asbestosis, a non-cancerous lung disease which often causes death. There are many disputes as to what is a safe level of exposure and whether one type of asbestos is less harmful than others. Because the effects may take twenty to thirty years to show up, health authorities are inclined to set tight limits on any asbestos exposure. U . S . Department of Labor, through the Occupational Safety & Health A ct, has adopted regulations to protect workers exposed to asbestos. U . S. Environmental Protection Agency has adopted regulations to protect the general public. Kaiser Gypsum Company, In c ., uses a small amount of asbestos for workability and shrinkage control in joint compounds, texture paints, and radiant heat compounds. \ ' Kaiser Gypsum Company is manufacturing and labeling these products in accordance with O S H A and EPA regulations. Contractors using these products are also affected by these regulations. / The following information generally summarizes asbestos regulations pertaining * to Kaiser Gypsum products. Specific details are spelled out in the regulations themselves and should be studied by contractors using these products. Asbestos Page 2 KAISER GYPSUM COM PAN Y During manufacture of these products, O S H A has several requirements including use of proper respirators by workers. Broken bags and spills are to be cleaned up by vacuum cleaners. Bags are to be disposed of in sealed plastic bags. EPA requires "No visible emissions" to the outside a ir from manufacturing plants to protect the general public from asbestos fiber. CONTRACTORS During mixing, spray application, and sanding of these products, O SH A requires workers to use proper respirators. Empty bags are to be disposed of in sealed plastic bags. There is considerable misunderstanding about the EPA regulations on spraying of asbestos-containing products on jobs. Kaiser Gypsum Company has been advised by the EPA that, "It is the opinion of this Agency that the spray-on application of decorative materials containing asbesfos is not a major source of asbestos emissions; therefore, spray-on decorative materials were not included in the regulations. The regulations only apply to the spray-on application of Insulating and fireproofing m aterials." r Kaiser K-Spray C eilin g Texture, Kaiser Cover-Tex Texture Paint, and Kaiser Radiant Heat Compounds may be sprayed applied on the job. Although these products contain small amounts of asbestos, spray application is not considered to create a hazard, and these products are not covered by EPA regulations. Asbestos Page 3 REFERENCES 1. O S H A regulations: Occupational Safety and Health Standards, Department of Labor. Standard for Exposure to Asbestos Dust. Title 29, Chapter X V II, Part 1910, Federal Register, Volume 37, N o . 110 - June 7, 1972. 2. EPA regulations: National Emission Standards for Hazardous A ir Pollutants, 4 0 C F R 6 1 , Federal Register, Volume 38, N o . 66 - April 6 , 1973. 3. Letter to Kaiser Gypsum Company from the Deputy Assistant Administrator for General Enforcement, U . S . Environmental Protection Agency, Washington, D . C . , dated May 29, 1973. . ' 4. Control Techniques for Asbestos A ir Pollutants, U . S. Environmental Protection A gency, Research Triangle Park, North Carolina - February 1973. G B K :jc 6/27/73 K A I S 35 R G Y P S P . O. BOX 4 6 0 U M C O M P A N Y , INC. KGAYPI SSUEMR P H O N E T O T -a o T O ANTIOCH. C A LIF. 9 4 5 0 9 May 2, 1973 Robert W. Fri Acting Administrator ' , Environmental Protection Agency Y/ashington, D. C. 20460 Dear Sir: We have reviewed the National Emission Standards for Hazardous Air . Pollutants published in the Federal Register, April 6, 1973, in regard to asbestos. V/e are particularly interested in spray-applied materials used as decoration and not for insulation or fireproofing, having worked closely with your staff on them. The following is our interpretation of the above standards as they pertain to these products: Spray-on operations using asbestos materials for decoration and not for insulating or fireproofing, in which the asbestos is strongly bound and would not generate particulate asbestos emissions, are not covered in this regulation and are not re stricted in asbestos content. Occupational Safety and Health Administration regulations include exposure, housekeeping and waste disposal requirements which v/ill protect the health of those working in proximity to such spraying operations. Is this interpretation correct? Very'truly yours, KAISER GYPSUM COMPANY, INC. /c bcc: G. B. Kirk T. V. Smith S. Sheahan . Senior Research Chemist UNITED STATES ENVIRONMENTAL PROTECTION AGENCY % . WASHINGTON. D.C. 20460 m *9 W3 Mr. J . S. Sheahan, Senior Research Kaiser Gypsum Company, Inc. ` P. 0. Box 460 Antioch, California 94509 Chemist Dear Mr. Sheahan: This is in response to your inquiry of May 2, 1973, concerning the interpretation of the National Emission Standards for Hazardous Air Pollutants (40 CFR 61) as they pertain to asbestos-containing sprayapplied materials used for decorating purposes. Subpart B of these regulations was designed to limit major sources of asbestos emissions. It is the opinion of this Agency that the sprayon application of decorative materials containing asbestos is not a major source of asbestos emissions; therefore, spray-on decorative materials were not included in the regulations. The regulations only apply to the spray-on application of insulating and fireproofing materials. Please be advised, however, that the manufacture of spray-on asbestos materials for decoration is regulated under section 61.22(c)(7) of the regulations under the category of manufacturing of a coating. If you have any further questions, please contact the Director of the Enforcement Division of the appropriate Regional Office of the Environmental Protection Agency. A list of the Regional Offices is included in 40 CFR 61.04. Sincerely yours, George v; Alien Deputy Assistant Administrator for General Enforcement CAUTION C O N T A IN S ASBESTOS FIBERS . A V O ID CR EA TIN G DUST . BREATHING ASBESTOS DUST M AY CAUSE SERIOUS BO D ILY HARM Above label is incom pliance with Federal Regulations relating to O ccu p a tio n a l, Safety, and Health Standards 29 CFR 1910.93a. . 1 2 3 4 5 SUPERIOR COURT OF WASHINGTON FOR KING COUNTY 6 JOHN E. CRUM and MARILYN J. CRUM, a married couple, 7 No. 98-2-24915-3 SEA AFFIDAVIT OF GEORGE KIRK Plaintiffs, 8 v. 9 THE E J. BARTELLS COMPANY; et al., 10 Defendants. 11 12 13 STATE OF CALIFORNIA ) ) ss. 14 COUNTY OF SAN FRANCISCO ) 15 I, GEORGE KIRK, declare: 16 1. I was employed with Kaiser Gypsum Company, Inc. (hereinafter "Kaiser 17 Gypsum") since its inception in 1952 through 1974. In 1958,1became Director of 18 Research for Kaiser Gypsum, and held that position through 1974. 19 2. Iam informed and believe that the above-captioned lawsuit was filed 20 against Kaiser Gypsum by John Crum, who alleges exposure to asbestos-containing 21 products. 22 3. As Director o f Research, I am familiar with Kaiser Gypsum's product line 23 and the components which were used to formulate each product. 24 4. Iam informed and believe that Mr. Brentwood "Brent" Crosby, a former 25 regional salesman for Kaiser Gypsum with whom I am personally acquainted, testified 26 recently in a deposition that in 1970, he asked me if any o f Kaiser Gypsum's products 27 contained asbestos. I am informed and believe that Mr. Crosby said that my response 28 was to tell him that none of Kaiser Gypsum's products contained asbestos. AFFIDAVITOF GEORGE KIRK -1 1 5. I do not recall that Mr. Crosby ever asked me in 1970 whether or not any 2 o f Kaiser Gypsum's products contained asbestos. Had he asked me that question in 1970, 3 I would have truthfully responded that Kaiser Gypsum's accessory products contained 4 asbestos as an ingredient. 5 6. Kaiser Gypsum always had an open-door policy and encouraged its 6 employees, such as Mr. Crosby, to tour its facilities. I specifically recall Brent Crosby 7 touring the Antioch manufacturing facility with Kaiser Gypsum customers. At the time 8 Mr. Crosby took these tours, pallets with sacks labeled asbestos would have been visibly 9 present and could have been seen by Mr. Crosby during the plant tours. 10 7. Likewise, I recall Mr. Crosby visiting the research and development lab at 11 Antioch where asbestos was kept in clearly labeled containers. 12 8. I recall that in approximately 1972, OSHA began to regulate the types of 13 asbestos-containing products which were manufactured by Kaiser Gypsum. In response 14 thereto, Kaiser Gypsum placed a caution label which conformed to OSHA mandates on 15 all of its asbestos-containing products. Initially, the caution labels were printed 16 separately and placed on each product package. Eventually, as new product packaging 17 was ordered, the labels were printed directly on the packaging. As asbestos was removed 18 from the products, the packaging no longer contained the caution label. 19 /// - 20 III 21 Ill 22 III 23 III - 24 III 25 III 26 III 27 III 28 III 2 AFFIDAVITOF GEORGE KIRK -1 1 9. Brent Crosby's job title did not necessarily involve him in the management 2 decisions regarding product formulations and caution labels; therefore, he would not have 3 had personal knowledge of any company decisions regarding product formulations and 4 caution labels. 5 I declare under penalty o f peijury under the laws o f the State of California that the 6 foregoing is true and correct to the best o f my knowledge. 7 Signed at San Francisco, California this ^ td a y 8 , 1999. 9 ,10 GEOR0E KIRK 11 2 12 SUBSCRIBED AND SWORN to before me thiiss/ /' ^ ddaayvooff A W ' t / _, 1999, by George Kirk. 13 14 15 4% i 16 0_ 17 JILL HARVEY * COMM. {(1119010 ^ NOTARY PUBLIC.-CALIFORNIA g J SAN FRANCISCO COUNTY - WtyComm txoires Dec. 5,2000 * 18 19 R:\PJG\MAIL\KAISER.400\CRUM\AFFEDAVI.GK 20 vT i n (PRINT NOTARY'S NAME) Notary Public in and fonthe State of / California, residing at K lY il M C ll/A , . My commission expires: wjC O 21 22 23 24 25 26 27 28 3 AFFIDAVITOF GEORGE KIRK -1 / '-/ C* >. c<'' r- /'' t i ., KAISER GYPSUM COMPANY, INC. KAISER CENTER -- 300 LAKESIDE DRIVE OAKLAND, CALIFORNIA 94604 April 5 , 1974 Mr. A . Victor Abnee, Jr. Executive V ic e President Gypsum Association 1603 Orrington Avenue Evanston, Illinois 60201 Dear V ic: As you know i shall be unable to.attend the forthcoming Gypsum Association Board of Directors Meeting. There is one subject on which I would like you to know our position, and this is in respect to labeling products containing asbestos. Our position ?s that we should label joint compound containing asbestos in strict accordance with OSHA regulations and are doing so on our products. The attached letter by our John Sheahan to M r. V o lk of National Gypsum, whom I understand is a member of the Safety Committee of the Association, provides details supporting the need for this position. . If there are any further questions you have with respect to this subject please give me a c a ll. Yours very truly, HCDreco Attachment ' Robert A . Costa V ic e President and General Manager lU M O <( C B Sx PATRICK J. HAGAN, ESQ. (State Bar #68264) E. JANE WELLS, ESQ. (State Bar #112178) DILLINGHAM & MURPHY 225 Bush Street, Sixth Floor San Francisco, CA 94104-4207 n"*"' (415) 397-2700 PARA TTV _____ r ; ' RECEiY^ JUL 2 3 1997 BRAYTON HARIT" - -- * HAND _ QVERNiun i ___ Attorneys for Defendant P O S " 1 lY ..1 KAISER GYPSUM COMPANY, INC. VERIF Y LDF. 1 Y i f m ^ TD/T^C _ _ SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO 10 11 IN RE: SAN FRANCISCO COUNTY COMPLEX ASBESTOS LITIGATION 12 13 14 15 CASE NO. 828684 KAISER GYPSUM COMPANY, INC.'S RESPONSES TO PLAINTIFFS' STANDARD INTERROGATORIES TO ALL DEFENDANTS (jbtA 16 17 PROPOUNDING PARTY 18 RESPONDING PARTY 19 SET 20 DATE Plaintiffs Defendant Kaiser Gypsum Company, Inc. Standard 21 COMES NOW defendant Kaiser Gypsum Company, Inc. (hereinafter "Kaiser 22 Gypsum"), and provides the following responses to Plaintiffs' Standard Interrogatories 23 To All Defendants propounded pursuant to San Francisco County Complex Asbestos 24 Litigation General Order No, 129: 25 KAISER GYPSUM'S PRELIMINARY STATEMENT 26 Kaiser Gypsum submits this preliminary statement to memorialize certain steps 27 taken to implement the standard discovery regime adopted pursuant to the revised 28 General Orders filed November 15, 1996 governing asbestos-related personal injury -l- q obtained from Wesco Waterpaints, Inc. was an asbestos-containing product. Kaiser Gypsum knows of no other agreement entered by it that provided for rebranding any product of another company's which may have been an asbestos-containing product in Kaiser Gypsum's name for sale in California. RESPONSE TO INTERROGATORY NO. 37: Yes, as to products marketed in 1972 or thereafter. A. Beginning in 1972, in response to regulations adopted by the U.S. . Occupational Safety and Health Administration (see 37 Fed. Reg. 11318, June 7, 1 1972), Kaiser Gypsum affixed caution labels to the packages and containers of its l: asbestos-containing products. The OSHA regulations requiring this label were made 1: subject to the limitation that "no label is required where asbestos fibers have been i: modified by a bonding agent, coating, binder, or other material so that during any i< reasonably foreseeable use, handling, storage, disposal, processing, or transportation, l' no airborne concentrations of asbestos in excess of the exposure limits prescribed in 1 paragraph B. of this section will be released." In light of then-existing ambiguities as to i' what tests OSHA would recognize as adequate to'demonstrate a product's falling within is this exception, Kaiser Gypsum applied the caution label to all its then-manufactured 19 products in which chrysotile asbestos was used as a component. 20 Initially, the labels were four inches by eight inches in size and had yellow 21 backgrounds with red letters. They were affixed to the bag or container of the product 22 by adhesive in a prominent place. Later, as new bags and containers were purchased, 23 the labels were printed onto the side of the bag or container and are believed to have 24 been the same color or colors as the bag/container or the printing thereon. The warning 25 label as prescribed by OSHA read: 25 CAUTION: contains asbestos fibers; avoid creating dust; 27 breathing asbestos dust may cause serious bodily harm. 28 - 48- Additionally, Kaiser Gypsum Technical Bulletins 5703-A, dated October 1973, and 5707, dated October 1973 and November 1976, prescribed the use of respirators during spray application. B. Yes. C. Beginning in 1972; exact date unknown. I This caution label remained the same during the remaining time the products upon which it was used continued to use asbestos as a component. E. Joseph R. Hobby, Vice President, 2680 Bishop Drive, San Ramon, California. RESPONSE TO INTERROGATORY NO. 38: I Most of Kaiser Gypsum's products were sold in the form of a powder or paste; therefore, the name of the company was on the packaging of the product. However, Kaiser Gypsum's 2-hour fire-rated ceiling tiles and suspended ceiling lay-in board products (in which asbestos was used as a component were specially marked because they looked similar to other Kaiser Gypsum mineral fiberboard ceiling tiles and lay-in boards (that did not contain asbestos as a component) and building inspectors wanted to be able to check to make sure that 2-hour fire-rated products actually were being used by the building contractor when those had been specified. It is believed that each piece of 2-hour fire-rated ceiling tile and suspended ceiling lay-in board was stamped on the back with either the initial "KG" or the word "Kaiser Gypsum." Such marking was employed during the entire period that the 2-hour fire-rated products were manufactured by Kaiser Gypsum. . RESPONSE TO INTERROGATORY Kin Kaiser Gypsum has no knowledge that it ever purchased or otherwise acquired an asbestos-containing product line from another person or entity. RESPONSE TO INTERROGATORY Kin An* Kaiser Gypsum has no knowledge that it ever sold an asbestos-containing product line to another person or entity. - 49-