Document ybgnK5M00wbrRQxaBVZ9eqj1r

JOHN SPENCER IN THE DISTRICT COURT 128TH JUDICIAL DISTRICT ORANGE COUNTY, TEXAS ----------------------------------------------------- ANN STUBBS, Individually and as Representative of the Estate of BEN L. STUBBS, Deceased Plaintiff; vs. Cause No. A-030272CC RADIATOR SPECIALTY COMPANY, et. al., Defendants ----------------------------------------------------- HERBERT W. WILKINSON and PEGGY S. HERBERT, Plaintiffs, vs. RADIATOR SPECIALTY COMPANY, et. al., Defendants. ----------------------------------------------------Friday, May 12, 2006 Baltimore, Maryland Deposition of: Mr. John Spencer called as a witness by Plaintiffs, at Baltimore, Maryland, before Texas S. Eckstone, Registered Merit Reporter/Notary Public and Tigran Soghomoryan, Videographer, in and or the State of Virginia, when were present on behalf of the respective parties: Page 1 Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 2 1 APPEARANCES: 2 ON BEHALF OF THE PLAINTIFF: 3 BARON & BUDD, PC 4 BY: DENYSE CLANCY, ESQUIRE 3102 Oak Lawn Avenue 5 Suite 1100 Dallas, Texas 75219-4281 6 (214) 521-3605 7 ON BEHALF OF EXXON: 8 BAKER BOTTS, LLP BY: TYNAN BUTHOD, ESQUIRE 9 One Shell Plaza 910 Louisiana Street 10 Houston, Texas 77002-4995 (713) 229-1912 11 ON BEHALF OF SHELL OIL AND UNITED STATES STEEL: 12 FULGRIGHT & JAWORSKI, LLP 13 BY: STEPHEN C. DILLARD, ESQUIRE Fulbright Tower 14 1301 McKinney, Suite 5100 Houston, Texas 77010-3095 15 (713) 651-5507 16 ON BEHALF OF UNION CARBIDE CORP: 17 KING & SPALDING, LLP BY: JAMES J. MAHER, ESQUIRE 18 1100 Louisiana, Suite 4000 Houston, Texas 77002-5213 19 (713) 276-7403 20 ON BEHALF OF RADIATOR SPECIALTY COMPANY: 21 COATS ROSE BY: TOM AUBRY, ESQUIRE 22 3 Greenway Plaza, H 2000 Houston, Texas 77046 23 (713) 651-0220 24 25 Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER 1 WITNESS INDEX 2 EXAMINATION BY: 3 MS. CLANCY 4 MR. DILLARD 5 MR. MAHER 6 MS. CLANCY 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 PAGE 7 222 223 225 Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER 1 EXHIBIT INDEX 2 Spencer Deposition Exhibit 31 Letter and notice of deposition for John Spencer. 4 2 5 63 74 85 9 Various deposition notes in blue folder. Red weld with Federal Register in it. John Spencer CV. 4/30/2006 EPI (John Spencer) Invoice to Fullbright and Jaworski. 6 10 11 7 12 Blue folder with various correspondence in It. Blue folder with Inventory Document dated 5/11/2006. 8 13 14 9 15 Blue folder with Summary Table documents for Stubbs and Wilkinson. Blue folder with Shell Document notes, etc. 10 Blue folder with Exxon Document notes, 16 etc. 17 11 Blue folder with Table taken from UCC Data by EPI Services and Site Visit 18 document dated 1/25/2006. 19 12 Exxon Facility Documents. 20 13 5/17/1989 Letter from Exxon Chemical Americas to Mr. Reggie Williams, Re: 21 Results of Monitoring of Je Merit Workers during NRU Column 7 Turnaround. 22 14 Rough Draft from Union Carbide 23 Corporation, Re: Contractor Work in Benzene Areas. 24 25 Henjum Goucher Reporting Services LP 1-888-656-DEPO Page 4 MAR 7 11 11 12 12 13 13 13 14 14 15 18 79 107 b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 5 1 EXHIBIT INDEX CONTINUED 2 15 Defendants ExxonMobil Corporation, Ethyl Corporation and American 3 Chemistry Council's First Amended Rule 194.2(d) through (f) Disclosures. 4 16 Red Weld with Union Carbide various 5 documents. 6 17 3/13/2006 Facsimile from King & Spalding, Defendant Union Carbide 7 Corporation's Second Supplemental Responses to Plaintiffs' Herbert W. 8 Wilkinson and Peggy S. Herbert's Request for Disclosure. 9 18 Red Weld containing various depositions 10 and other documents. 11 19 Red Weld containing Shell Data and Documents. 12 148 182 200 205 234 13 14 15 16 17 18 19 20 21 22 23 24 25 Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 6 1 VIDEOGRAPHER: This is a video 2 deposition of John Spencer, taken by counsel for 3 plaintiff in the matter of Ann Stubbs versus Radiator 4 Specialty Company et. al., and Everett W. Wilkinson 5 and Peggy S. Herbert versus Radiator Specialty 6 Company, et. al., in the District Court of Orange 7 County, Texas, 128 Judicial District. Case number 8 8-030272CC, held in the Marriott BWI International 9 Airport. Address is 1743 West Nursery Road, 10 Baltimore, Maryland, zip is 21240, on May 12th, 2006. 11 The time on the screen is 10:16:45. My 12 name is Tigran Soghomoryan, and I'm legal video 13 specialist. 14 The court reporter is Tex Eckstone. 15 We are employed by Henjum Goucher. 16 Counsel will now introduce themselves 17 and the party they represent, after which court 18 reporter will administer the oath to the witness. 19 MS. CLANCY: Denyse Clancy, 20 counsel for plaintiff. 21 MR. DILLARD: Steve Dillard, 22 counsel for defendants. 23 MR. BUTHOD: Tynan Buthod, counsel 24 for certain defendants I guess. 25 MR. MAHER: Jim Maher, counsel for Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 7 1 Union Carbide Corporation. 2 MR. AUBRY: Tom Aubrey for 3 Radiator Specialty Company. 4 MS. CLANCY: Can you hear me 5 okay? Go off the record for one second. 6 (WHEREUPON, A DISCUSSION WAS HELD OFF THE 7 RECORD.) 8 Thereupon, 9 JOHN SPENCER 10 called as a witness herein, having been first duly 11 sworn by the Notary Public, was examined and testified 12 as follows: 13 E X A M I N A T I O N 14 BY MS. CLANCY: 15 Q. Mr. Spencer, my name is Denyse Clancy, 16 and I'm attorney for plaintiff in this case. Good 17 morning. 18 A. Good morning. 19 (DOCUMENT MARKED PLAINTIFF, SPENCER 20 DEPOSITION, EXH. NO. 1, FOR IDENTIFICATION.) 21 BY MS. CLANCY: 22 Q. Have you -- I'm going to enter as 23 Plaintiff's Deposition Exhibit Number 1 on the 24 deposition notice for this case. Have you seen this 25 notice before? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 8 1 A. Yes. 2 Q. When did you see it? 3 A. This amended notice, one or two days 4 ago. 5 Q. Did you see a notice prior to this? 6 A. Yes. 7 Q. When did you see that? 8 A. I don't know for certain. Maybe a week 9 or more ago. 10 Q. Did you read the materials -- the 11 request for materials that are attached to the 12 deposition notice as a subpoena duces tecum? 13 A. Yes. 14 Q. Did you bring materials responsive to 15 this subpoena duces tecum with you to the deposition 16 today? 17 A. Yes. 18 Q. Are there any materials that you did not 19 bring that would be responsive to the subpoena duces 20 tecum? 21 A. Not that I'm aware of. 22 Q. Where are those materials? 23 A. To my left. 24 Q. Can we get them out? 25 A. They are out. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 9 1 Q. Okay. Can we put them on the table? 2 A. Not without blocking my view. There are 3 three boxes of material. 4 Q. Oh, okay. I'm sorry. Well, why don't 5 we start by opening the first box? 6 A. It's open. 7 Q. All right. Can you tell me what is in 8 the first box? 9 A. There are summary notes that I have that 10 I pulled together for this case. 11 Q. Can we pull those out, please? 12 MR. BUTHOD: Denyse, while we're 13 doing that, can we make the same stipulation that if 14 one of us has an objection, it is good is for all? 15 MS. CLANCY: Yes. 16 MR. BUTHOD: And the court 17 reporter need not worry about who actually makes the 18 objection if you have trouble identifying us. That 19 may facilitate things a little bit. 20 THE WITNESS: Do you want me to 21 list everything else that is in the box? 22 BY MS. CLANCY: 23 Q. Let's start with this. This is your -24 what you just pulled out are your notes on the case, 25 is that what you said? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 10 1 A. Correct. 2 Q. Are there any reports that you've done? 3 A. No. 4 Q. Why don't you describe for me -- the 5 notes seem to be in different folders. So why don't 6 you describe for me what each folder is? 7 A. First are deposition summaries. The 8 second part is the literature. 9 Q. And this is the Redweld that you're 10 holding right now? 11 A. Yes. 12 Q. So I'm going to mark -- let's see here, 13 I will mark deposition summaries as Plaintiff's 14 Exhibit 1. 15 No, can I stamp this and mark it and 16 attach it, or do you want me to put -17 A. As long as I get a copy of it back, 18 that's fine. Whatever you would like to do. 19 Q. All right. I just didn't know if you 20 minded if I marked it. 21 A. Not at all. 22 Q. So this will be Exhibit 2 to your 23 deposition, which is the deposition summaries that you 24 had prepared; is that correct? 25 A. Yes. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 11 1 Q. And the summaries of the depositions 2 that you've read with respect to these cases; is that 3 right? 4 A. Correct. 5 (DOCUMENT MARKED PLAINTIFF, SPENCER 6 DEPOSITION, EXH. NO. 2, FOR IDENTIFICATION.) 7 BY MS. CLANCY: 8 Q. Also in the first Redweld was 9 literature; is that right? 10 A. Correct. 11 Q. And is this literature that you've 12 reviewed specifically for purposes of providing an 13 opinion in this case? 14 A. Correct. 15 Q. And you've relied on this literature to 16 provide your opinion in this case? 17 A. Yes. 18 Q. I'm going to mark the second folder, 19 which the Redweld states as "literature" on the top as 20 Deposition Exhibit Number 3. 21 A. Great. 22 (DOCUMENT MARKED PLAINTIFF, SPENCER 23 DEPOSITION, EXH. NO. 3, FOR IDENTIFICATION.) 24 BY MS. CLANCY: 25 Q. Okay. What's in the next folder? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 12 1 A. I have my CV and invoices that were 2 produced for work done on this case or cases. 3 MS. CLANCY: I'll mark the CV as 4 Deposition Exhibit Number 4, and your invoices I will 5 mark as Deposition Exhibit Number 5. 6 (DOCUMENT MARKED PLAINTIFF, SPENCER 7 DEPOSITION, EXH. NOS. 4 and 5, FOR IDENTIFICATION.) 8 BY MS. CLANCY: 9 Q. What is the next folder you brought? 10 A. This contains correspondence, a summary 11 of the inventory, that is all the materials I have 12 received, pulled together in this case. Again, some 13 summaries I produced with regards to the plaintiff's 14 activities and so forth, materials from various 15 sources. 16 And additional summary materials that I 17 pulled from all the documents that I had reviewed in 18 this case, with the exception of one piece of paper in 19 here that actually are my summary notes from when I 20 did a site visit at the Union Carbide facility in 21 January of this year. 22 Q. Okay. Thank you. 23 MS. CLANCY: I'm going to mark 24 correspondence then as Deposition Exhibit Number 6. 25 (DOCUMENT MARKED PLAINTIFF, SPENCER Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 13 1 DEPOSITION, EXH. NO. 6, FOR IDENTIFICATION. 2 BY MS. CLANCY: 3 Q. Inventory -- I'm sorry, I'm going to 4 mark inventory as Deposition Exhibit Number 7. And 5 for clarification for the record, could you explain 6 again for the record what the inventory folder is? 7 A. The documents that I have received in 8 these cases. 9 (DOCUMENT MARKED PLAINTIFF, SPENCER 10 DEPOSITION, EXH. NO. 7, FOR IDENTIFICATION.) 11 BY MS. CLANCY: 12 Q. Exhibit Number 8 I will mark, it's 13 labeled on your folder, "work product, plaintiff's 14 summaries." And could you tell me again what Exhibit 15 8 is? 16 A. It's a summary from testimony in this 17 case regarding Mr. Wilkinson and Mr. Stubbs. 18 (DOCUMENT MARKED PLAINTIFF, SPENCER 19 DEPOSITION, EXH. NO. 8, FOR IDENTIFICATION.) 20 BY MS. CLANCY: 21 Q. And it's a summary of whose testimony? 22 A. Co-workers, the plaintiffs themselves -23 not Mr. Stubbs, but a co-worker and his wife. 24 Q. I'll mark that as Deposition Exhibit 25 Number 8. The next folder is labeled Shell. I'll Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 14 1 mark that as Deposition Exhibit 9. Could you describe 2 what is in folder Shell? 3 A. This is a summary of various documents 4 produced by Shell describing their programs, policies 5 and procedures within the relevant time period. 6 Q. Their programs, policies and procedures 7 for what? 8 A. Well, dealing with benzene related 9 products, dealing with shutdowns, turn arounds and 10 related to contractor activities within their 11 facility. 12 (DOCUMENT MARKED PLAINTIFF, SPENCER 13 DEPOSITION, EXH. NO. 9, FOR IDENTIFICATION.) 14 BY MS. CLANCY: 15 Q. The next one I'm going to label 16 Deposition Exhibit Number 9 -- I mean Number 10. It 17 says it is labeled "Exxon." Can you tell me what this 18 is? 19 A. The same as the Shell document except 20 Exxon. 21 (DOCUMENT MARKED PLAINTIFF, SPENCER 22 DEPOSITION, EXH. NO. 10, FOR IDENTIFICATION.) 23 BY MS. CLANCY: 24 Q. So therefore, it's Exxon policies and 25 procedures with respect to what? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 15 1 A. The same as I described for Shell. 2 Q. But I don't want to put words in your 3 mouth. Exxon policies and procedures with respect to? 4 A. Benzene, Benzene related issues, 5 shutdowns, turn arounds and contractor policies and 6 procedures. 7 Q. And these are provided to you by Exxon? 8 A. Yes. 9 (DOCUMENT MARKED PLAINTIFF, SPENCER 10 DEPOSITION, EXH. NO. 11, FOR IDENTIFICATION.) 11 BY MS. CLANCY: 12 Q. And the last one I have marked as Union 13 Carbide is Deposition Exhibit Number 11. 14 A. Yes, it is a summary. One is a summary 15 of industrial hygiene air monitoring data from Union 16 Carbide facility. And second is our notes that I had 17 taken during a 25, January 2006, site visit. 18 Q. Okay, what else is in box Number 1? 19 A. The next file is the deposition earnings 20 records and affidavit of Mr. Wilkinson. 21 Q. Okay. 22 I'm going to hold off on marking this as 23 an exhibit for now, and look at it during a break to 24 see if it needs to be marked. 25 A. Okay. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 16 1 Q. Did you take notes or otherwise flag any 2 of the areas on these papers provided in this folder? 3 A. I took notes, but they're not in that 4 folder. They're in these materials that you've 5 already been through. 6 Q. So you didn't take notes on the 7 depositions? 8 A. Correct. 9 Q. What else is in box Number 1? 10 A. Next is a deposition of Mr. Wilkinson 11 taken in 2003. 12 Q. And this is a deposition of 13 Mr. Wilkinson taken in the Nash case? 14 A. That's correct. 15 Q. Okay. I'm going to further hold this 16 back for a little bit and look at it during the break 17 to see if we need to enter it as an exhibit. 18 A. Very good. 19 Q. What is the next thing in box Number 1? 20 A. It is Mr. Petty's report on 21 Mr. Wilkinson. 22 Q. Okay. What is next in your box Number 23 1? 24 A. This is Mr. Petty's report on 25 Mr. Stubbs. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 17 1 Q. Okay. And what's next? 2 A. This is the Shell documents, policies, 3 procedures, and their air monitoring data. And the 4 Shell estimate of historic Benzene exposures at 5 petroleum refineries. 6 Q. So are these the Shell materials that 7 you summarized as in Deposition Exhibit Number 9? 8 A. Correct. 9 Q. I'm going to hold this back for a minute 10 and see about entering it as an exhibit. Okay. 11 A. These are the Union Carbide documents, 12 programs, policies and procedures and their air 13 monitoring data. 14 Q. And similar, these are materials that 15 have been summarized by you in Deposition Exhibit 16 Number 11? 17 A. The data is, yes. 18 Q. And the policies and procedures are not? 19 A. Correct. 20 Q. Is there some reason why you didn't 21 summarize the policies and procedures? 22 A. Yes. 23 Q. What is that? 24 A. Ran out of time. 25 Q. When did you get the policies and Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 18 1 procedures? 2 A. I've had them for some time, but I was 3 just working down the list. And I reviewed the 4 documents; I just didn't summarize them. 5 Q. Okay. What's next in your box? 6 A. That's it for the first box. 7 Q. Okay. Could you hand me -- if the first 8 box is empty, you can hand it to me. I'm going to 9 put -- for organization sake, I'll put these folders 10 back in there. 11 What is in the second box? 12 Okay. The second box is comprised of Exxon 13 facility documents, which are summarized on the piece 14 of paper you just handed me? 15 A. Correct. 16 Q. So I will mark that summary as 17 Deposition Exhibit Number 12. 18 (DOCUMENT MARKED PLAINTIFF, SPENCER 19 DEPOSITION, EXH. NO. 12, FOR IDENTIFICATION.) 20 BY MS. CLANCY: 21 Q. And is this a summary of all the 22 materials provided to you by Exxon in this case? 23 A. No. Here is the second sheet of the 24 next box. 25 Q. Is that the third box? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 19 1 A. Yes. 2 Q. Okay. Are the two sheets you handed me 3 a summary of all the materials provided to you by 4 Exxon in this case? 5 A. Yes. 6 Q. Okay. I'm going to stable them together 7 then, and mark them as Deposition Exhibit 12. The 8 boxes 2 and 3 that you brought with you today are 9 Exxon facility documents summarized, and on -- the 10 contents of which are summarized on Deposition Exhibit 11 12; is that right? 12 A. Correct: 13 Q. Did you bring any other documents 14 pursuant to the subpoena duces tecum served on you? 15 A. No. 16 Q. When were you first contacted about this 17 case? 18 A. I do not recall specifically. The first 19 correspondence I have starts from February of this 20 year, so I was contacted sometime prior to that. 21 Q. Who first contacted you? 22 A. I believe it was Fulbright & Jaworski. 23 Q. And who from Fulbright & Jaworski? 24 A. Mr. Dillard. 25 Q. And what did he say to you? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 20 1 A. I don't remember the specifics of what 2 he said to me, but generally I'm asked to review a 3 case and review the facts in the matter. 4 Q. And what did he ask you to provide your 5 opinion on? 6 A. The exposure to plaintiffs', 7 Mr. Wilkinson and Mr. Stubbs, to review the programs 8 and procedures that were in place at the Shell 9 facility. And to comment on any plaintiff, in 10 particular industrial hygiene expert plaintiff 11 opinions. 12 Q. What programs and procedures in place at 13 Shell facility did he ask you to review? 14 A. Well, it wasn't any particular 15 programs. Certainly it was those that generally are 16 listed in the documents that we've been through, and 17 that deal with the issue of -- that are relevant to 18 Benzene exposures. 19 Q. Are you going to be testifying with 20 respect to the adequacy of Shell's industrial hygiene 21 program? 22 A. Not their overall program. I haven't 23 reviewed -- that's a very -- that's a larger, much 24 broader program. I certainly would anticipate 25 testifying to the effect of the policies and Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 21 1 procedures they had in place as it relates to managing 2 exposures to contractors. 3 Q. Well, let me clarify the question. 4 As to Shell, are you going to testify as 5 to the adequacy or the standard of care used by the 6 industrial hygiene program at Shell DuPont? 7 A. Again, not broadly as defining the 8 industrial hygiene program. But as it relates to 9 contract workers who are involved in situations where 10 there is potential for Benzene exposure, yes. 11 Q. So you're going to testify about the 12 Shell industrial hygiene program as it relates 13 specifically to contractors? 14 A. Yes. 15 Q. Okay. 16 A. And their activities which would 17 potentially involve them in Benzene streams at that 18 facilities. 19 Q. Whose activities? 20 A. The contractors' activities. 21 Q. Oh, the contractor's activities? 22 A. Right. 23 Q. Okay. 24 So what have you -- are you going to 25 testify with respect to the industrial hygiene program Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 22 1 at Brown and Root? 2 A. No. 3 Q. Are you going to testify to the 4 industrial hygiene program of Mundy? 5 A. No. 6 Q. Are you going to testify to the 7 knowledge of Brown and Root as to the hazards of 8 Benzene? 9 A. I'm not going to testify to -- not 10 specifically, but certainly it was my understanding 11 that Brown and Root would have had knowledge of 12 Benzene and Benzene streams within a refinery. 13 Q. Well, are you going to testify or 14 provide an expert opinion as to Brown and Root's 15 historical knowledge as to the hazards of Benzene? 16 A. No. 17 Q. Are you going to give an expert opinion 18 as to Brown an Root's knowledge of the safety 19 practices to be implemented with respect to Benzene? 20 A. At this point in time, no, I cannot 21 testify to their specifics as regards to their 22 historical knowledge or historical practices. 23 Q. Well, and I'm asking you specifically 24 during the time period 1970s to 1980s, are you going 25 to testify as to Brown and Root's practices with -- Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 23 1 safety practices with respect to the hazards of 2 Benzene? 3 A. No, not their specific practices, no. 4 Q. Are you going to testify with respect to 5 Mundy's specific safety practices as to the hazards of 6 Benzene in the 1970s and 1980s? 7 A. No, I would not as to any of the 8 contractors. The closest I would get is to generally 9 talk about a contractor such as Mundy or a contractor 10 such as Brown and Root and their responsibility in 11 that time frame as an employer to manage the health 12 and safety of their employees, such as Mr. Wilkinson 13 and Mr. Stubbs. 14 Q. So you're providing expert opinion on 15 the responsibility of an employer to provide safety 16 for its employees? 17 A. Correct. 18 Q. In a legal sense and under the law in 19 Texas? 20 A. I don't know what that means, but 21 certainly as an industrial hygienist, and my 22 experience and training as an industrial hygienist, I 23 would be providing that testimony. 24 Q. And yet you don't know as you sit here 25 today what Mundy or what Brown and Root did with Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 24 1 respect to providing health and safety for their 2 employees? 3 MR. DILLARD: Object to form. 4 THE WITNESS: I have some general 5 understanding, but I do not have the specific 6 documents to support all their activities. That's not 7 what I've been asked to do. But I do understand and 8 am aware of what the responsibilities and the roles of 9 an employer are under these types of circumstances. 10 BY MS. CLANCY: 11 Q. So you understand generally what their 12 responsibilities would be as an employer, but you have 13 not been asked to review specifically what Brown and 14 Root or Mundy did vis-a-vis their employees; correct? 15 A. Correct. 16 Q. And you're not providing about what they 17 did specifically; correct? 18 A. Correct. 19 Q. I've got a long list of -- I've got a 20 list of contractors. Does that apply to the entire 21 list of contractors that -- for whom Stubbs and 22 Wilkinson worked in this case? 23 A. I'm not certain of the entire list, but 24 I am not speaking about any contractors other than 25 what I've -- Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 25 1 Q. I was just trying to cut corners. 2 A. Other than what I've already described 3 generally, I would speak to an employer's 4 responsibility and a contractor's as an employer, and 5 their responsibilities in these type of workplaces. 6 Q. But no contractor specifically are you 7 talking about that, but for Mundy, Brown and Root, 8 Diamond, J.E. Merrit, are you providing an expert 9 opinion as to their historical knowledge as to the 10 hazards of Benzene; correct? 11 A. That's correct. 12 Q. Okay. 13 So far what I've got that you were asked 14 by Mr. Dillard to analyze plaintiff Wilkinson and 15 Stubb's exposure to Benzene; is that correct? 16 A. Yes. 17 Q. And were you asked to calculate any sort 18 of dose that they may have received or any inhalation 19 exposure analysis? 20 A. Well, I was asked to look at that to 21 determine whether I could do that, yes. 22 Q. And what did you determine? 23 A. Well, in terms of calculating dose, it 24 just wasn't possible to do so. 25 Q. And did you make any calculations as to Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 26 1 their part per million year exposure? 2 A. Well, no. That would be dose. But due 3 to the lack of any specificity as to where they 4 worked, what process streams they were particularly 5 involved with, the frequency and duration of those 6 activities, it was impossible to be able to assess the 7 exposure to the extent one could calculate a specific 8 dose for Mr. Wilkinson or Mr. Stubbs. 9 Q. Did you make any calculations whatsoever 10 with respect to any Benzene exposure that Mr. Stubbs 11 or Mr. Wilkinson might have had? 12 A. Again, not specifically to those 13 individuals. I did look at the industrial hygiene 14 data from each of the facilities, that is Shell, Exxon 15 and Union Carbide. 16 And correlated that data with time 17 frames and specific trades. And made assumptions 18 based on the testimony that had been provided in this 19 case that the plaintiffs worked in the capacity of 20 these trades. And looked at the data overall, and did 21 an overall assessment of what someone doing that 22 activity in a Benzene stream would be exposed to. 23 It's not Mr. Wilkinson and Mr. Stubbs' 24 exposure, but it's just generally what an individual 25 in the trades or the activities that were described in Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 27 1 their testimony would have been exposed to as a result 2 of that trade or activity. 3 Q. Okay. So did you write that down 4 anywhere? 5 A. Well, I wrote down the data and 6 summarized the data in looking at those specific 7 trades, and it's included in these summaries in here. 8 Q. All right. Could you pull that folder 9 out for me so I could see what you're saying? 10 A. Here is an example of the Union Carbide 11 data. Pipefitter, boilermaker, maintenance 12 activities. This is from the data from 1978 through 13 1985, so relevant trades within the relevant time 14 frame. And then summarized the data based on a number 15 of samples as presented here. 16 Q. Okay. So can I see that? 17 A. Oh, sure. It's all yours. 18 Q. Thank you. So let me make sure I 19 understand that. 20 First of all, this does -- and let me 21 clarify this for the record, what exhibit was this 22 taken out of? 23 A. 11. 24 Q. Okay. Folder Number 11. 25 With respect to this sheet, it says "job Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 28 1 classifications by UCC codes." What are UCC codes? 2 A. That was the designation used by Union 3 Carbide in their industrial hygiene program to 4 designate various trades within their chemical plant. 5 Q. Okay. 6 Just for comparison purposes, did you do 7 a similar job classification analysis for Shell and 8 Exxon? 9 A. They're similar but a little different, 10 because the data was arranged differently. But I do 11 have summarized data for Shell. 12 For Exxon, I simply went through their 13 data set and looked at the data. And I found it to be 14 consistent with the other data that I had reviewed in 15 greater detail. 16 Q. Can I see the Shell data summary? 17 A. Here is a summary presented here of the 18 Shell data. 19 Q. The Shell data you pulled from folder 20 number what? 21 A. 8. 22 Q. Okay. 23 Well, let me start with the Union 24 Carbide data sheet, and ask you some questions. 25 So I don't want to misstate what you Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 29 1 said earlier. What you did for this it appears is 2 took different trades at Union Carbide, and then 3 assigned them representative values; is that correct? 4 A. No. 5 Q. Okay. Tell me what you did. 6 A. There's a larger database of thousands 7 of samples from Union Carbide. I went through and 8 extracted those data points from that larger database 9 that were representative of the trades that had been 10 testified to by the plaintiffs in this case. 11 Q. Okay. 12 And then, you took the data from those 13 trades, which are pipefitter, boilermaker and 14 maintenance; is that correct? 15 A. Yes. 16 Q. And then you summarized those trades? 17 A. Correct. And then we extracted the data 18 from the overall data set. 19 Q. And is that -- so can you call these 20 similar exposure groups then? 21 A. Well, no, I would not call those similar 22 exposure groups. I think what this does is we have 23 lumped various maintenance people, boilermakers and 24 pipefitters into one group. So we've created a larger 25 set. The similar exposure groups would be within that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 30 1 data set. 2 So in essence what I've done is over 3 stated what likely exposure would be. These are 4 people who were working at a variety of different 5 activities, different tasks, all related to some 6 Benzene stream. But they're different, so I can't say 7 that they're all within the same exposure group. 8 Q. Okay. Because, for example, the 9 maintenance might be doing different tasks and 10 maintenance? Is that what you mean? 11 A. Sure. 12 Q. So that's somewhat similar to similar 13 exposure groups? 14 A. They may be working on a different unit. 15 Q. Okay. And so, what you did is you took 16 folks in maintenance -- for purposes of driving your 17 maintenance number which -- at Union Carbide, which 18 says a range of 1.21 part per million to .0001 part 19 per million; is that correct? 20 A. Yes. 21 Q. You took maintenance workers who had 22 performed jobs across the facility at Union Carbide 23 but may have been different units, may have been 24 different times, but all of them were in areas where 25 there were Benzene containing streams; is that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 31 1 correct? 2 A. Yes. 3 Q. And you put the data point from those 4 workers together, and came up with down here at the 5 mean range from 1.21 to .0001 per million; is that 6 right? 7 A. That's correct, that's the range. 8 Q. And then similarly for pipefitters at 9 Union Carbide, what you did is you took pipefitters 10 who had done different tasks, a different unit, 11 various different units at Union Carbide and 12 consolidated them together, with the common factor 13 being that they had worked around Benzene containing 14 streams. And then derived for them a mean exposure 15 range of 1.23 to less than .01 per parts per million; 16 is that correct? 17 A. Yes. 18 Q. Which of these workers on the table 19 taken from Union Carbide data are contract workers? 20 A. Well, I don't know that any of them are 21 contract workers. However, this data would be 22 representative of exposure for facility personnel who 23 would have higher levels of exposure than the contract 24 workers. 25 Q. Well, how do you know that? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 32 1 A. Based on the activities that are being 2 conducted, and in the time frame and the sequence in 3 which they're being conducted. 4 These are people who are doing work with 5 active streams containing Benzene, versus a stream or 6 piece of equipment that has been cleared as part of a 7 shut down or a turn around where the contractor would 8 come and get involved. 9 So in that capacity, the contractor 10 would come in. Well, the contractor was actually 11 coming in and doing maintenance work. And in that 12 scenario, their results would be represented by the 13 data that is presented here. 14 Q. But you just said earlier that you don't 15 know whether any of this data is contractor data; 16 correct? 17 A. Sure. It's on employees doing the same 18 task that if a contractor was coming in and doing work 19 as part of routine maintenance in the facility, then 20 this data would be representative of their activities 21 and their exposures. 22 Q. Okay. So this is routine maintenance -23 these tasks represented by Union Carbide data are 24 routine maintenance performed by Union Carbide 25 employees; is that right? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 33 1 MR. MAHER: Object to form. 2 THE WITNESS: They are. 3 BY MS. CLANCY: 4 Q. Routine maintenance tasks? 5 A. Well, there are other activities 6 probably that are non-routine as well. You have to go 7 through and look at each individual data point. We 8 looked at everything that was going on in the 9 facility. 10 Q. Well, you said earlier that these are 11 routine maintenance tasks performed by Union Carbide 12 employees to the extent that, maintenance workers came 13 in and did those some or similar routine tasks they 14 were just like maintenance workers; is that correct? 15 MR. MAHER: Object to form. 16 THE WITNESS: If I said routine, 17 then I shouldn't have. I don't know that every one of 18 these is routine. There are other numbers in here 19 reflective of non-routine tasks as well. It's the 20 universe of data, so -21 BY MS. CLANCY: 22 Q. Do you have that data that you derived 23 that from? I think you have it in that box Number 1. 24 A. Yes, this is the Union Carbide data 25 here. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 34 1 Q. Thank you. So first of all, you did not 2 compare any of this employee data to any actual 3 contractor data taken at Union Carbide; correct? 4 A. I'm not sure. Compare it with what? 5 Q. Well, did you have any actual contractor 6 monitoring data at Union Carbide? 7 A. From that data set, no. Again, I didn't 8 have specific contract monitoring data. If a 9 contractor was doing one of these tasks, they would be 10 represented by this same data set. 11 Q. Well, I guess my question was simpler 12 than that. This data set represents employees data 13 exposure, correct, exposure in parts per million? 14 Well, let me back up and make it clear. 15 This exhibit, the Union Carbide exhibit 16 is data derived from Benzene monitoring of Union 17 Carbide's employees; correct? 18 A. Yes. Doing tasks within the Union 19 Carbide facility that -- it could be a Union Carbide 20 facility or it could be the same task that a contract 21 contractor would be doing. 22 Q. And my question -23 MS. CLANCY: Object to the 24 non-responsive portion of that, so I guess everything 25 after "yes." Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 35 1 BY MS. CLANCY: 2 Q. My question is then did you have any 3 actual monitoring of contractors at Union Carbide for 4 Benzene exposure? 5 A. Again, I don't know if any of that was 6 specifically for contractors at Union Carbide. 7 Q. Well, as you sit here today, you're not 8 aware of any contractor data, actual contractor data 9 for Benzene monitoring -10 MR. MAHER: Object to form. 11 BY MS. CLANCY: 12 Q. -- at Union Carbide, correct? 13 A. Well, your statement is correct from the 14 standpoint that I don't have it on a specific 15 contractor. But what I have said, and I'm sorry, but 16 I'll say it again, is it is my view that this data is 17 representative of a contractor doing the same type of 18 work that a Union Carbide employee would have been 19 doing. 20 So that data is representative of a 21 contractor's work, but it is not on a specific 22 contractor that I am aware of. 23 Q. Okay. You're just making the assumption 24 that the contractor is doing same or similar tasks as 25 Union Carbide employees would have same or similar Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 36 1 exposure; correct? 2 MR. MAHER: Object to form. 3 THE WITNESS: I don't know that 4 you call it an assumption. It's based on experience. 5 It's based knowledge of the tasks and activities. And 6 I'm not sure why a contractor would do it differently 7 than pulling a blind or disconnecting a pump, why they 8 would do that differently than a Union Carbide 9 employee. 10 BY MS. CLANCY: 11 Q. Okay. So what your testimony is that 12 once you have the basic task, that you can assign 13 values to folks who didn't even perform that task, as 14 long as you have an understanding of what the task 15 entails? 16 MR. MAHER: Object to form. 17 THE WITNESS: Sure. Sure. One of 18 the -- in industrial hygiene, one of the principles is 19 a task-based analysis. You don't have to assess every 20 person every day under every specific scenario. There 21 are various processes that you go through, and one is 22 a task-based analysis. 23 BY MS. CLANCY: 24 Q. And so to understand that, because I'm 25 not an industrial hygienist, to understand that then, Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 37 1 a task-based analysis is you can compile values using 2 other folks' experience in that task, and then apply 3 those to anticipate or predict historically what 4 another person may have experienced in same or similar 5 tasks; is that right? 6 A. Good, sure. 7 Q. Correct? 8 A. Yes. 9 Q. And that is a standard and accepted 10 method of analysis in industrial hygienist; correct? 11 A. Oh, absolutely. 12 Q. Let's put this back in the Union Carbide 13 folder which is -14 MR. MAHER: 11. 15 THE WITNESS: 11, which is right 16 here. 17 BY MS. CLANCY: 18 Q. Thank you. Let me look at this. Well, 19 I think it might be easier if you explain to me then 20 how you derived the Shell data, which is marked 21 "summary table, Shell-Wilkinson." 22 A. The Shell data is based on data 23 collected from 1979 and 1988. Of that data set, there 24 were 809 personal samples that were collected. And by 25 far and away the majority of them, nearly 99 percent, Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 38 1 were less than one part per million for workers at the 2 Shell facility. 3 Q. Could you give me those years again 4 please? 5 A. 1979 to 1988. 6 Q. Okay. And it says here 1979, 1984, '85 7 and '88. So did you review just four years in that 8 period? 9 A. Reviewed the -- the data was, came from 10 those years. 11 Q. So from the years 1979, 1984, 1985 and 12 1988; correct? 13 A. Correct. 14 Q. Okay. Are you looking for the data? 15 A. Yes. Is that what you want me to look 16 for? 17 Q. Yes. 18 A. I kind of anticipated that. 19 We're getting things disorganized here. 20 Could we put this back in that folder? 21 Q. I'm sorry. I knew I was -- that's my 22 fault. 23 A. Because you may ask me about it again, 24 and I'll have to spend a lot of time looking for it. 25 This is a summary of the Shell data. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 39 1 And -- well, you can take a look at this and ask me 2 questions. 3 Q. Well, first of all, is this data of 4 Shell employees? 5 A. It's Shell employees and Brown and Root 6 contractors, employees. 7 Q. Where are the Brown and Root 8 contractors? 9 A. They're interspersed in here. Here is a 10 Brown and Root contract employee in the loop plant 11 where Mr. Wilkinson worked in 1988. 12 Q. Okay, so is this the air sampling 13 collected on Brown and Root employees in March, June 14 and September '88 in the loop plant referenced here on 15 your summary table? 16 A. Yes. 17 Q. Okay. 18 A. I believe they were all non-detectable, 19 or less than 0.1 parts per million. 20 MS. CLANCY: I'm going to object 21 as non-responsive portion, because there wasn't a 22 question pending. So thank you. 23 THE WITNESS: Okay. 24 BY MS. CLANCY: 25 Q. Can I see that? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 40 1 A. Yeah. 2 Q. Okay. And the Brown -- the typical OSHA 3 measurement for -- well, what's passing OSHA 4 regulations are two different types of time-weighted 5 averages. One is over a 15-minute period, and one is 6 over an eight-hour period, correct, for Benzene? 7 A. First one you said is what? 8 Q. A 15-minute period, the short-term 9 exposure on there? 10 A. Well, there are two standards. 11 Q. Okay. 12 A. Or permissible exposure limits. Yes, 15 13 and eight hour. You don't have to monitor both. 14 That's an activity based determination as to which one 15 you do. 16 Q. And what does that mean? 17 A. If it's a short term task, you compare 18 it to the S.T.E.L. If it's a long term activity, you 19 compare it to the eight-hour TWA. 20 Q. Would non-routine tasks be an example of 21 short term tasks? 22 A. Depends on the activity, the length of 23 the activity. 24 Q. Well, for example, if you just came in 25 to insert a blind, takes 30 minutes, would that be Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 41 1 considered a short term task? 2 A. You know, that's a call that has to be 3 made in the field. I mean, it's a 30-minute sample, 4 so it's longer than 15 minutes. So you may average 5 that over an eight-hour day. 6 Q. Could you give me an example of a short 7 term task that you would, as an industrial hygienist 8 would make the call of that? 9 A. Sure. You may be disconnecting a line. 10 You may be inserting a blind. 11 Q. What else? 12 A. You may be cleaning a part that takes 13 minutes. 14 Q. Okay. How about changing a filter? 15 Could that be considered as this task, short term 16 task? 17 A. What type of filter, what size, etc., 18 and how do you access the filter? 19 Q. Well, tell me if there's an instance 20 where changing a filter could be considered a short 21 term task? 22 A. Sure, if it's some small filter and it's 23 readily, easily accessible, and sure, that could be 24 less than -- there are many scenarios that, you know, 25 I just can't presume them all. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 42 1 Q. But there are many scenarios where 2 possibly changing a filter could be considered a task 3 where short term exposure monitoring was appropriate? 4 A. Oh, no. What I'm saying is that may be 5 true, there may be short term activities in that kind 6 of -- in changing out a filter. I can't think of a 7 specific piece of equipment in a refinery or chemical 8 plant where that's necessarily the case. 9 Q. So the other time period that OSHA 10 prescribes is an eight-hour time-weighted average; 11 correct? 12 A. Yes. 13 Q. And what you do is you take -- is that 14 you take the exposure during a certain time period in 15 that day. And if you are going to calculate an eight16 hour time-weighted average, that you spread that 17 exposure over the eight-hour time-weighted period. So 18 you calculate your total eight-hour time-weighted 19 average parts per million exposure? 20 A. Well, I don't know if that's exactly the 21 right term to use. You would, again, look at the 22 length of the activity that would be likely to produce 23 an exposure to Benzene. 24 And, first, you try to sample for the 25 entire length of that time. If you cannot do that, if Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 43 1 you cannot sample the entire time, then you may sample 2 for a portion of that time, and then presume that the 3 rest of it is the same. And then that's factored into 4 your eight-hour time-weighted average. 5 Or if the task only lasts a half a day 6 and the rest of the day is no exposure to asbestos, 7 then you would time weight that, your results over 8 that eight-hour period. Oh, sorry, Benzene, yes. 9 Q. Benzene, yes. 10 A. The same is true for asbestos. 11 Q. So there are two different ways, then 12 you're testifying at calculating the eight-hour time13 weighted average for purposes of providing data as 14 required by the OSHA regs? 15 A. Yes. 16 Q. And the first of which is that you take 17 a representative exposure sample at one point during 18 the day, and then just presume that the rest of the 19 eight hours are the same at that exposure point? 20 A. Or you could sample the entire day, 480 21 minutes. 22 Q. All right. And at that point, you could 23 say, here is what the average would be experienced 24 over the eight-hour time period? 25 A. Correct. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 44 1 Q. The second way of doing it is to take a 2 sample, and then to spread that out over the eight3 hour period by means of averaging the -- capturing of 4 time over the eight-hour time period; is that right? 5 A. Yes. 6 Q. And it follows, then that like, for 7 example, if you have a 15 minute -- if you monitor me 8 for 15 minutes of exposure to Benzene, and then I say, 9 well, I really want to know what that is over an 10 eight-hour period. The 15 minute sample is going to 11 be a far greater parts per million exposure than it 12 would be if you spread it over the eight-hour time 13 period; right? 14 MR. BUTHOD: Form. 15 THE WITNESS: Unless both of them 16 are zero. 17 BY MS. CLANCY: 18 Q. Well, let's start with -19 A. Then they'd be the same. 20 Q. Yes. But in general, if it's not -21 well, specifically if it's not zero, if there is an 22 actual number, like a hundred parts per million 23 assigned to the 15-minute time period, when you spread 24 that out over eight hours, that's going to be a much 25 smaller number; correct? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 45 1 MR. MAHER: Object to form. 2 THE WITNESS: Sure if the rest of 3 your day is no exposure to Benzene, that is true. 4 That's how the OSHA determines the eight-hour time5 weighted average for comparison with the health 6 standards. 7 You have to normalize the data in order 8 to compare it with the occupational health standards. 9 So what you stated is correct. 10 BY MS. CLANCY: 11 Q. And part of everybody using the eight12 hour time-weighted average is a process of normalizing 13 the data? 14 A. Correct. 15 Q. So that people compare apples to apples? 16 A. Correct. 17 Q. And the longer -- if you use longer time 18 periods, like nine hours or ten hours, that's even 19 going to make the numbers look -- the numbers will be 20 smaller; right? 21 MR. BUTHOD: Form. 22 THE WITNESS: There is a different 23 technique for if you have longer than eight-hour 24 shifts. Then there is a mathematical technique for 25 adjusting the permissible exposure limit so that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 46 1 you're recognizing that longer exposure period. 2 BY MS. CLANCY: 3 Q. And what is that mathematical technique? 4 A. Well, you take a fraction of whatever -5 the extended period of time is nine hours. Ten hours 6 you take that fraction and effectively decrease the 7 permissible exposure limit, and then compare your 8 results against that. 9 Q. Well, let's say -- I'm kind of 10 confused. If you have -- why would you decrease the 11 exposure if you're trying to back it back into an 12 eight-hour time-weighted average? 13 A. Because you've exposed the individuals 14 for a longer period of time. There is more exposure. 15 Q. You're assuming that you're doing the 16 type of measurement that is an exposure for ten hours 17 as opposed to the type of measurement that is where 18 you capture the individuals for a certain period of 19 time, and then you divide that out over the whole day. 20 A. Sure. I'm sorry. As I understand your 21 hypothetical, you're presuming that someone is exposed 22 more than eight hours. 23 Q. No. I was just saying if you're using 24 ten hours as -- let's just say you want to do a 25 ten-hour time-weighted average. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 47 1 A. Yes. 2 Q. As opposed to eight-hour time-weighted 3 average. 4 A. Right. 5 Q. Is that an accepted practice to do a 6 ten-hour time-weighted average? 7 A. Yes. But again, you adjust the health 8 standard. You lower the health standard. 9 Q. Well, but I'm talking about an instance 10 where you're not measuring all day. You're measuring 11 -- let's say the example you provided earlier, we were 12 measuring for half a day. And then you say, okay, 13 well, I want to do it on a ten-hour time-weighted 14 average. Is that an accepted practice? 15 A. If your belief is the exposure continued 16 for the rest of that day and for an entire ten-hour 17 day, you could do that. But then you have to 18 mathematically change the permissible exposure limit 19 for comparison purposes. 20 Q. Okay. 21 And did you mathematically change the 22 Brown and Root in quotes for the eight-hour time23 weighted average for comparison exposure purposes? 24 A. No. I mean, I believe a majority or all 25 of them were non-detectable. There was no need to do Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 48 1 that. 2 MS. CLANCY: Object as 3 non-responsive. 4 BY MS. CLANCY: 5 Q. You recognize that the Brown and Root 6 exposures reported by Shell were a ten-hour time7 weighted average; correct? 8 A. Well, I looked at the times, yes. But I 9 also looked at the results of the data. 10 Q. Right. Well, my question is simple. 11 You estimate that they were reported, many of them on 12 a ten-hour time-weighted average; right? 13 A. Okay. 14 Q. Correct? 15 A. I'd have to go back and look at them. I 16 didn't make note of if all of them or most of them 17 were reported an a ten-hour time-weighted average. 18 Again it doesn't matter, because most of them were a 19 non-detect. 20 MS. CLANCY: Object to the 21 unresponsive portion of that. 22 BY MS. CLANCY: 23 Q. Okay. 24 For example, on the data you just handed 25 me, Brown and Root loop plant, ten-hour time-weighted Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 49 1 average, Brown and Root loop plant, ten-hour time2 weighted average, Brown and Root loop plant, ten-hour 3 time-weighted average, Brown and Root loop plant, ten4 hour time-weighted average. Do you see where it says 5 that? 6 A. Sure. 7 Q. And so you didn't -- my question is very 8 simple; very specific. You did not do a conversion of 9 that Brown and Root data back to an eight-hour time10 weighted average; correct? 11 A. I did not because there was no need to. 12 Because the data was less than, was non-detect, so 13 there was no need to do that. 14 Q. Well, you didn't make a comparison of 15 apples to apples. You did not make a -- convert the 16 ten-hour time-weighted average to eight-hour time17 weighted average; correct? 18 A. Oh, sure I did. That's what I'm 19 saying. But you wouldn't need to do that. That would 20 be a silly step to take, because the results are 21 non-detect. I don't understand why one would do that. 22 Q. Well, because you testified earlier that 23 if you have a ten-hour time-weighted average -- strike 24 that. 25 At any rate, your use of the Brown and Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 50 1 Root data uses a ten-hour time-weighted average; 2 correct? 3 A. My -- that data is -- some of it is a 4 ten-hour -- they recognize longer tasks and 5 activities. But they reported no detectable levels of 6 Benzene, and they had a detection limit of .1 parts 7 per million. The standard is one. 8 So at ten hours, you're looking at an 9 extra what, 20 percent time. So it would be 20 10 percent of -- that would be .8, so it's still well 11 below that extrapolated permissible exposure limit. 12 Q. But you didn't make that conversion for 13 purposes of your calculations here today; correct? 14 A. I didn't need to; it was already done. 15 Q. But you did not do it for -- you did not 16 do that calculation for purposes of your summary data 17 sheet that we see here today; correct? 18 A. I'm sorry, I'm not following your 19 question. I'm not sure why I would do something that 20 didn't need to be done. 21 Q. My question is not why. My question is 22 did you? 23 A. Sure. I made that assessment mentally 24 when I looked at the data just as I did sitting here 25 explaining it to you. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 51 1 Q. Your calculation -- you testified 2 earlier that you weren't even sure if they used 3 ten-hour time-weighted average. So -4 MR. MAHER: Object to form. 5 THE WITNESS: No. I think you 6 misstated what I said. What I said was I didn't look 7 that closely at it. I looked at it and I knew there 8 were ten-hour samples in there, but I didn't need to 9 do any calculation as you put it, because the results 10 were non-detect. 11 Q. So my question is then, you did not do 12 calculations to convert the Brown and Root ten-hour 13 time-weighted average to an eight-hour time-weighted 14 average; correct? 15 A. Yes, I did. I did it in my head just as 16 I did here with you this morning. 17 Q. You're not changing your testimony to 18 say that you did it in your head? 19 MR. BUTHOD: Object to the form of 20 the question. 21 THE WITNESS: Sure, I didn't write 22 anything down. I didn't need to. 23 BY MS. CLANCY: 24 Q. Because the summary -- well, your 25 summary sheet, your summary data sheet includes -- for Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 52 1 air monitoring collected by Shell by Brown and Root 2 employees includes data that includes ten-hour time3 weighted average and eight-hour time-weighted average; 4 correct? 5 A. Yes. 6 Q. Who else contacted you about providing 7 an opinion in this case? 8 A. Exxon Mobile. And I was also contacted 9 by attorneys from Arco. They were representing Arco, 10 Lyondell, and I believe BP AMOCO. 11 Q. And is that it? 12 A. Yes. 13 Q. So the attorneys that contacted you were 14 from Shell, Exxon and BP AMOCO? 15 MR. MAHER: Object to form. 16 THE WITNESS: And Union Carbide. 17 BY MS. CLANCY: 18 Q. And whom did you speak to -- who else 19 did you speak to from Shell -- what other Shell 20 attorneys did you speak to besides Mr. Dillard? 21 A. I believe that's it. 22 Q. And did you meet with Mr. Dillard in 23 person prior to your testimony here today with respect 24 to these cases? 25 A. I may have met with Mr. Dillard on Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 53 1 another occasion in Houston where he mentioned this 2 case, but I don't recall that we talked in any detail 3 about this case in person. 4 Q. Did you do a site visit of Shell Deer 5 Park in preparation for this case? 6 A. Not for this case. I've been there 7 before, but not for this case. 8 Q. And did you do a site visit of Exxon 9 Baytown for purposes of this case? 10 A. Same answer. 11 Q. So the answer is no? 12 A. Not for this chase. 13 Q. And it's my understanding that you did 14 do a site visit at Union Carbide? 15 A. But not for this case. 16 Q. Not for this case either? 17 A. Correct. 18 Q. So when you were at Exxon Baytown, Shell 19 Deer Park and Union Carbide in a prior time period, 20 you weren't there for the purposes of analyzing -21 well, obviously for analyzing what your opinions would 22 be or analyzing facts for purposes of providing 23 opinions in this case? 24 MR. MAHER: Object to form. 25 THE WITNESS: Well, no, I think in Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 54 1 fact, the purpose of my site visit was to understand 2 the layout of the facility, the magnitude of the 3 facility, the workplace conditions, the types of units 4 and so forth that existed at these facilities. 5 Q. When was your site visit at Shell Deer 6 Park? 7 A. I believe it was sometime in, and I'm 8 not positive, 2004, 2005. 9 Q. Was it for purposes of litigation? 10 A. It was involving a litigation case in -11 I don't recall the name of the specific case I was 12 there for. 13 Q. But you went to visit Shell Deer Park in 14 your capacity as serving as an expert in a legal case; 15 correct? 16 A. Sure. If I'm going to discuss 17 operations at a facility, certainly it is of benefit 18 to see those operations and understand the environment 19 in the context of the work activities. And so that's 20 why I went there originally. 21 Q. Okay. And when did you do a site visit 22 at Exxon Baytown? 23 A. Again, I can't give you a specific 24 time. It was in the last several years. 25 Q. Was that for purposes of providing your Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 55 1 opinion in a legal case? 2 A. It was, yes. 3 Q. And were you providing your opinion on 4 behalf of Exxon? You were hired by Exxon? 5 A. As best as I can recall, yes. 6 Q. Well, have you ever been hired by a 7 plaintiff's attorney in a Benzene case? 8 A. Yes. There was a Benzene component to 9 an issue. It was multiple solvents that individuals 10 were exposed to, and I represented a group of 11 plaintiffs in that case. 12 Q. And who were the plaintiffs -- I mean 13 who was the plaintiff's attorney? 14 A. Frank Duff. 15 Q. And when was that? 16 A. The best I can tell you, the late '90s. 17 Q. But Benzene was not an issue in that 18 case; correct? 19 A. Well, my recollection is there was a 20 variety of solvents, including Xylene. And as a part 21 of that, Benzene was considered a constituent. It was 22 not the primary focus of the case. There were several 23 different solvents or components to these paint 24 products that were at issue. 25 Q. But you testified previously under oath Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 56 1 that Benzene was not an issue in the paint case; 2 correct? 3 A. Yeah. I did not consider it an issue, 4 that's right. When I looked at the data, I was asked 5 to comment on that by the plaintiff's attorney, but I 6 did not feel the trace levels of the Benzene in the 7 product were not of any consequence in terms of 8 exposure. 9 Q. What was your opinion for the 10 plaintiff's attorney in the paint solvent exposure 11 case? 12 A. That their employer, the contractor, had 13 put them in harm's way by having them paint on an 14 operational boiler in a confined area without the 15 benefit of respiratory protective equipment. 16 Q. Okay. And what did you testify that 17 they were exposed to? 18 A. There were a variety of solvents. 19 Xylene, MEK, isosinates. Those are the ones that I 20 recall. 21 Q. So the substances at issue in the one 22 time you testified for a plaintiff's attorney in a 23 solvent's case were Xylene, MEK and isosinate; 24 correct? 25 A. As I saw it and agreed to testify to, Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 57 1 that's correct. I was asked about Benzene, but again 2 did not feel that there was an exposure of any 3 significance. 4 Q. Well, what you said actually was Benzene 5 was not an issue? 6 A. It wasn't in the case after -- since I 7 wouldn't testify to it. 8 Q. And any other times that you have 9 testified on behalf of a plaintiff in a Benzene case? 10 A. I cannot think of one in a Benzene 11 case. 12 Q. But you have testified on behalf before 13 then -- well, in addition to today, you offered 14 previous testimony for Exxon in a Benzene case; 15 correct? 16 A. I have, yes. 17 Q. Okay. How many times have you testified 18 on behalf of Exxon? 19 A. I'm not really certain. Two or three 20 times. I am not real certain. It hasn't been a lot. 21 Q. And you've offered prior testimony in a 22 Benzene case on behalf of Shell, correct, in addition 23 to this? 24 A. Yes. 25 Q. How many times? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 58 1 A. Perhaps a couple of times. 2 Q. And you've offered prior testimony in 3 addition to today on behalf of Union Carbide in a 4 Benzene case; right? 5 A. I don't know that I've ever provided 6 testimony for Union Carbide in a Benzene case. 7 Q. Well, you've been hired by Union Carbide 8 in another Benzene case prior to this case; correct? 9 A. Yes, that is true. 10 Q. About how many? 11 A. I'm sorry? 12 Q. How many? 13 A. I can think of one. 14 Q. And you've also testified for Dow in 15 Benzene cases; correct? 16 A. I can't recall having testified for 17 Dow. I may have, but I just don't recall testifying 18 for them. 19 Q. Well, you're not saying today that you 20 haven't testified for Dow in a Benzene case? 21 A. Yes. I'd have to look further into that 22 to see if I could determine whether I have actually 23 testified for them. 24 Q. How about for Marathon? 25 A. I've been hired by Marathon. Again, I'm Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 59 1 not certain. It was one case in particular where they 2 settled out, I can't remember, right before or right 3 after I testified in a deposition. 4 Q. But you were hired by Marathon to 5 provide expert opinions in a Benzene case; correct? 6 A. Sure. 7 Q. And you with hired by Dow to provide 8 expert opinions in a Benzene case? 9 A. I have been, yes. All low dose cases, 10 yes. 11 Q. What does that mean, all low dose cases? 12 A. Well, they were activities -- there were 13 operations that presented, in my views and in my 14 practice, either no or low level of exposure to 15 Benzene. 16 Q. Okay. Have you ever offered an opinion 17 testifying in a Benzene case that the exposures 18 suffered were higher than no low or no level of 19 exposure? 20 A. I don't that I've said that certain 21 activities -- certainly I'm aware of certain 22 activities that can lead to high levels of exposure. 23 I don't know that I've been asked to testify to that 24 before though. 25 Q. Well, have you ever, you know, provided Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 60 1 a deposition or sat in front of a jury and testified 2 under oath that the activities or operations presented 3 the worker at issue with higher than low or no level 4 of exposure? 5 A. Yeah. That's what -- I can't recall 6 whether I have ever provided that specific testimony. 7 Say, a particular task would present a high level of 8 exposure. I may have presented that before, I just 9 don't recall a specific instance. 10 I certainly know that those 11 opportunities exist for high levels of exposure. I 12 monitored workers in my course of working for the 13 Coast Guard that had high levels of exposure on 14 occasion to Benzene. 15 Q. Well, I'm just asking as you sit here 16 today if you can recall any instance where you've 17 testified that a worker experienced high levels of 18 exposure to Benzene? 19 A. I cannot give you a specific instance 20 where I've done that. I can't tell you one way or the 21 other whether I have. 22 Q. So you can't recall as you sit here 23 today? 24 A. Correct. 25 MS. CLANCY: Okay. Let's change Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 61 1 the tape. 2 MR. DILLARD: Let's take a 3 restroom break too, if you don't mind. 4 VIDEOGRAPHER: This is the end of 5 tape number 1, the video deposition of John Spencer. 6 The time on the screen is 11:31:21. We're going on 7 break now. 8 MR. AUBREY: This is Tom Aubrey 9 representing Radiator Specialty, and we've got some 10 depositions lined up for next week for Pyatt and 11 Paustenbach, and I'd like your permission to attend 12 those by telephone. 13 MS. CLANCY: Can we talk about it 14 later? I just don't feel it's appropriate for 15 Mr. Spencer's deposition. 16 MR. AUBREY: Okay. 17 VIDEOGRAPHER: This marks the 18 beginning for tape number 2 in video deposition of 19 John Spencer. The time on the screen is 11:47:59. 20 We're back on the record. 21 BY MS. CLANCY: 22 Q. Mr. Spencer, earlier we had marked your 23 most recent curriculum vitae as an exhibit. Could you 24 pull that out, please? 25 Deposition Exhibit 4. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 62 1 First of all, have you ever received a 2 non cert? 3 A. I have not. 4 Q. Have you ever written an article or book 5 outside of the context of litigation on the topic of 6 Benzene exposure? 7 A. Yes. 8 Q. What? 9 A. It was an article just recently 10 published on -- we were validating a model based on 11 some air sampling that was done with solvents 12 containing low levels of Benzene. 13 Q. But my question was, have you done an 14 analysis that occurred outside the context of 15 litigation? Because that paper was written in the 16 context of two legal cases; correct? 17 A. No, that paper was not. I did not do it 18 in the context of any legal case. 19 Q. What the paper says that has your name 20 on it is "The data are sparse because the simulations 21 were not conducted as part of well funded research 22 studies, but in the context of two legal cases to 23 provide a general sense of exposure intensity given 24 specific Benzene levels in the solvent." Do you 25 disagree with that statement? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 63 1 MR. BUTHOD: Do you want to show 2 the witness what you're reading? 3 THE WITNESS: I doubt if -- what 4 you need to understand is the data was produced as a 5 result of that, but not our data, not our study. I 6 didn't do the study as part of any litigation case. 7 The data that we were utilizing had been produced by 8 someone else in a litigation case. But this paper was 9 not written in the context of litigation. 10 BY MS. CLANCY: 11 Q. Okay. So this says that the simulations 12 were conducted in the context of two legal cases; 13 correct? 14 A. Done by other people, not me. We just 15 used that data and looked at the results of the data, 16 and then ran computer models to determine whether 17 there was a correlation between the model and the data 18 done by -- collected by others. 19 Q. So the data that you were deriving your 20 analysis from for purposes of this May 2006 paper was 21 data that was a simulation done in the context of two 22 legal cases; correct? 23 A. Well, part of the data was. Our data 24 was not. Where we ran the computer simulation, that 25 was not. That was something we did on our own. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 64 1 Q. Right. That's what I'm saying is that 2 your computer simulation used as a comparison point, 3 the data derived from simulations conducted in the 4 context of two legal cases; correct? 5 A. Yes. That's where the actual air 6 monitoring data came from. 7 Q. Is there any other book or article that 8 you have written outside of the context of litigation 9 with respect to Benzene and Benzene exposure? 10 A. Yes. I wrote a health and safety audit 11 manual that includes methods for auditing the Benzene 12 regulations and how to properly meet those regulations 13 within your operation. 14 Q. Well, this isn't the -- here is a health 15 and safety audit by John Spencer, but that's not the 16 one you're referring to; correct? 17 A. Yes, it is. 18 Q. Oh, this is the one you're referring to? 19 A. Yes. 20 Q. Can you tell me where in this it refers 21 to the Benzene regulation? 22 A. Sure. It should be 1910 through 28. 23 Gosh, I haven't looked at this in a long 24 time. Page 211. 25 Q. This appears to be a checklist to be Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 65 1 followed in order to have compliance with the OSHA 2 regulations with respect to Benzene; is that correct? 3 A. It's part of an auditing protocol. 4 Q. And the auditing protocol to be used as 5 a checklist to help determine compliance with the 6 relevant OSHA Benzene regulation 29 CFR 1910-1028; 7 correct? 8 A. I don't like the word "checklist" but it 9 certainly can be described as that, yes. 10 Q. Well, protocol then, is that better? 11 A. Yes. 12 Q. Protocol. 13 A. It makes me feel better. 14 Q. Okay. It's a protocol to be followed 15 with compliance with the Benzene regulation, 29 CFR 16 1910-1028; correct? 17 A. Yes. 18 Q. What else have you written that has been 19 published outside of litigation on the issue of 20 Benzene and Benzene exposure? 21 A. I can't think of anything else that's 22 been published in that sense. I think that's it. 23 Q. Have you ever taught classes on the 24 issue of exposure estimation? 25 A. Well, I've given presentations at Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 66 1 technical conferences on doing retrospective 2 assessments. Another one on how to select appropriate 3 data sets presented at the national conference of the 4 American industrial hygiene association and the ACGIH. 5 Q. When did you present that? 6 A. It's in my CV I think. The dates are a 7 couple of years ago. 8 Q. Is this "Estimating Past Exposures-The 9 Scientific Basis for Reconstructing Asbestos Dose for 10 Groups and Individuals"? 11 A. Yes. 12 Q. How about with respect to -- let me back 13 up. 14 Do you have a copy of that paper still? 15 A. Well, I probably have a copy of the 16 abstract. I'd have to look for that. 17 Q. And what do you mean by the abstract? 18 A. Well, that's what they requested for 19 review was basically an abstract of the paper. And 20 they presented an abstract in the proceedings from the 21 meeting. I'd have to look and see what I have. 22 Q. And that was specifically with respect 23 to historical assessment for purposes of analyzing 24 asbestos exposure? 25 A. Well, asbestos was used as an example, Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 67 1 but it really applied to any type of chemical 2 exposure. 3 Q. Did you specifically mention Benzene and 4 calculation of Benzene in your speech? 5 A. I'm not sure that I did or not. 6 Q. Where else? Is there any other instance 7 where you have given a -- taught a class at an 8 educational institution on -- well, that was -- let me 9 back up. That was with respect to a technical 10 conference for the ACGIH, the topic of which was 11 "historical exposure assessment with respect 12 asbestos;" correct? 13 A. Yes. 14 Q. Have you ever taught a class in an 15 educational institution with respect to analyzing 16 exposure assessments or preparing exposure 17 assessments? 18 A. On exposure assessments, I don't know if 19 it's called that. I taught a course using this manual 20 at Johns Hopkins University, part of the NIOSH 21 educational resource center. 22 Q. And you're talking the health and safety 23 auditing? 24 A. Right, which included the component of 25 Benzene and the requirements for exposure assessment. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 68 1 I'm not sure if that answers your question or not. 2 Q. Well, the audit book doesn't deal with 3 issues of exposure assessment; correct? 4 A. Not specifically, you're right. In 5 terms of specifically exposure assessment techniques, 6 that's correct. 7 Q. In fact, it doesn't specifically deal 8 with -- I don't see anywhere in the book it even 9 handles the issue of exposure assessment, historical 10 exposure assessment? 11 A. Not historical. It talks about the 12 practices for an employer to monitor employees' 13 exposure to Benzene. 14 Q. Right. But it doesn't attempt to teach 15 how to calculate a cumulative dose or cumulative 16 exposure assessment; correct? 17 A. Oh, correct. 18 Q. Is that it? 19 A. Yes. 20 I gave another presentation, and I don't 21 even know that it's listed here. Again, at the AIHA 22 ACGIH conference on, I guess Benzene as an example 23 where we evaluated exposures through measurements. 24 And then first, we modeled the data to predict 25 exposures, and then we took actual measurements to Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 69 1 evaluate those exposures. 2 Q. But that's not listed on your CV? 3 A. Here. It's listed under professional 4 conference and poster sessions. That was in 2004. 5 And then there were two presentations that were done 6 in 2004 on that issue. 7 Q. May I see the original copy of your CV? 8 And do you still have the paper that you prepared for 9 purposes of exposure assessment and evaluation of 10 Benzene from the application and use of spike 11 penetrating solvents? 12 A. Yes, I should still have that. 13 Q. And this paper was -- or this 14 presentation was with respect to making calculations 15 based on the use of solvent? 16 A. Well, that particular one had to do with 17 actual air monitoring based on the use of that 18 solvent, where it had varying levels of Benzene in it. 19 Q. And what solvent was it? 20 A. It was a mineral spirits based solvent. 21 Q. Who was it made by? 22 A. Liquid Wrench. 23 Q. Did you use any of the knowledge or 24 techniques that you talked about in that assessment 25 for purposes of preparing your opinion today? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 70 1 A. No. 2 Q. Are you testifying today with respect to 3 plaintiff's exposure to Liquid Wrench? 4 A. Well, not directly. I don't mean to be 5 evasive, but I guess indirectly part of what I was 6 asked to do is take a look at the plaintiff's expert's 7 assessment for his estimates of exposure. 8 And so I certainly have opinions and 9 would comment on the industrial hygiene expert as 10 representing the plaintiffs in this case, and his 11 assessment of exposure to Liquid Wrench. 12 Q. But have you made your own calculations 13 with regard to any exposure that any plaintiff had 14 with Liquid Wrench? 15 A. I have not made any calculations, no. 16 Q. And just to make the record clear, the 17 only calculations that I've seen that you've made with 18 respect to any representative exposure with respect to 19 plaintiffs would be the Shell data, Shell calculations 20 that we looked at earlier the Union Carbide 21 calculations; is that right? 22 A. Well, I would not call them calculations 23 that were made specific to the plaintiffs. There are 24 data points that if, in fact, the plaintiffs worked in 25 jobs and had activities that involved them in Benzene Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 71 1 containing streams, then that data would be 2 representative of their exposure. 3 Q. And those are the only two calculations 4 you made with respect to data representative of 5 plaintiff's exposure based on the assumptions that you 6 just set forth; is that correct? 7 A. Well, yes, but I guess to be more 8 specific, I wouldn't call them calculations. It was 9 an analysis of existing data. Something that 10 virtually most any industrial hygienist could have 11 gone through and analyzed and pulled that data out. 12 So it wasn't a calculation per se. 13 Q. It was an analysis -- the only analysis 14 of existing data that you did and then summarized was 15 with respect to the Shell data and the Union Carbide 16 data that you just set forth? 17 A. And I reviewed the Exxon data as well. 18 Q. But you didn't produce any for this 19 calculated summary of that; correct? 20 A. I didn't produce a summary of it; that 21 is correct. 22 Q. You just looked at the data; is that 23 right? 24 A. Correct. 25 Q. Do you plan to do a summary of the Exxon Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 72 1 data? 2 A. That's possible. I mean, I'd like to do 3 something similar to what I did with the Shell data. 4 I just read through it. I just didn't have time to 5 count and summarize all that. 6 Q. Are you planning to come to trial in 7 this case? 8 A. Yes. 9 Q. Who did you speak to on behalf of Exxon 10 with respect to your opinions that you provided in 11 this case? 12 A. Mr. Buthod. 13 Q. So you were hired by Exxon as well? 14 A. Yes. 15 Q. What was your understanding of what 16 Exxon wanted you to provide an opinion about? 17 A. Well, the same issues that I previously 18 described. When I gave that description before, it 19 really applied to all the individuals that had asked 20 me to evaluate this case. 21 Q. And that is what? What did Exxon 22 specifically ask you to do? 23 A. To evaluate the exposures to the 24 plaintiffs in the case. To evaluate programs, 25 policies, procedures. And to, excuse me, comment on Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 73 1 the plaintiff's industrial hygiene expert's process 2 for determining plaintiff's exposure. 3 Q. And so the three categories that I have 4 that you were asked to testify about with respect to 5 these cases are, one, the -- your analysis of the 6 exposures that may have arisen or did not arise to the 7 plaintiffs in this case, whichever way you came out on 8 that; correct? 9 A. Correct. 10 Q. And that was specifically with respect 11 to Benzene? 12 A. Yes. 13 Q. Did you do any analysis with respect to 14 any type of organic solvent other than Benzene or 15 Benzene -- let me retract that. That was very 16 confusing. 17 MR. BUTHOD: Objection. Form. 18 MS. CLANCY: Well, just retract 19 that. 20 BY MS. CLANCY: 21 Q. The second area that you were asked to 22 testify about was with respect to policies and 23 procedures. And I'd like to ask you again, what 24 policies and procedures specifically have you been 25 asked to testify about? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 74 1 A. The ones that were identified -- there 2 weren't specific policies and procedures. In general, 3 I think as I explained before, it had to do with the 4 procedures and the policies that dealt with how 5 Benzene exposures were managed within the facility as 6 it relates to contract personnel. 7 There was one other area I left out, I 8 think I had mentioned before, and that was the issue 9 of employer responsibility. 10 Q. And you meant employer responsibility in 11 general; correct? 12 A. Yes. 13 Q. So you will be -- are you commenting 14 therefore on the standard of care and the adequacy of 15 policies implemented by the Exxon safety department, 16 health department, and industrial hygiene department 17 as to managing contractors as it relates to Benzene? 18 MR. BUTHOD: Form. 19 THE WITNESS: Not necessarily 20 managing contractors, but what their practices were 21 that had the downstream effect of managing or limiting 22 or eliminating exposure to certain contract 23 employees. Not necessarily the plaintiffs in this 24 case because there is not a clear data on that or 25 information on that, but contractors in general. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 75 1 BY MS. CLANCY: 2 Q. So they're Exxon and Shell and Union 3 Carbide, is that right, all three of them? 4 A. Yes. 5 Q. You've been asked to talk about how in 6 general their -- what their practices were as they 7 related to contract personnel and Benzene; is that 8 correct? 9 A. How their programs, policies, procedures 10 ultimately effected what the exposures would be 11 downstream to contractors generally. 12 Q. And yet you've analyzed no contractor 13 data with respect to Union Carbide; correct? 14 MR. MAHER: Object to form. 15 THE WITNESS: Other than what we 16 have already discussed, which again, it's my belief 17 that that data would be on a task based level, would 18 be representative of contractors doing those types of 19 pipefitter, boilermaker and maintenance workers 20 activities. 21 BY MS. CLANCY: 22 Q. Right. You're saying that the employee 23 data that you reviewed for Union Carbide, you're 24 saying is representative of the contractor data that 25 you did not review for Union Carbide; correct? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 76 1 A. Correct. 2 Q. And for Shell, you analyzed three -- oh, 3 I've done it. Where is our Shell summary sheet? I 4 thought it would be in Shell. 5 A. Are these what you're looking for? 6 Q. Yes, thank you. 7 And for Shell with respect to contractor 8 data, you analyzed data over the period of September 9 10th, 1988, to September 19th, 1988, is that correct, 10 at the lube unit? 11 A. Yes. Well, I'd have to look at that to 12 be sure. I do recall it was all contained within the 13 1988 period. 14 Q. I'm looking at this one that says 15 September 10th, 1988, to September 19th, 1988; 16 correct? 17 A. Well, there is other Brown and Root data 18 from June of 1988. So there is more data than just 19 the September data. 20 Q. Okay. I just want to know which Brown 21 and Root data you're looking at. 22 A. Also March of 1988. 23 I believe that's all there was. 24 Q. Okay. So the Shell contractor data that 25 you analyzed was the data from two days in March of Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 77 1 1988, which is March 28 and 29 of 1988? 2 MR. DILLARD: If that's the end of 3 the question I would object to the form of it. 4 BY MS. CLANCY: 5 Q. Is that correct? And that was the first 6 contractor data you analyzed for Shell? 7 A. Yes. 8 Q. And then you also analyzed Shell 9 contractor data from June 5th through June 8th of 10 1988; correct? 11 A. Yes. 12 Q. And finally the last piece of contractor 13 data that you analyzed for Shell was September 12th 14 through September 19th of 1988; correct? 15 A. Actually, it's September 10th. 16 Q. All right. Thank you. September 10th 17 through September 19th, 1988; is that right? 18 A. September 19th? 19 Q. Yes. 20 A. Okay. 21 Q. Is that correct? 22 A. Yes. 23 Q. Any other contractor data that you 24 analyzed for Shell? 25 A. What do you have in your hands there, Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 78 1 what pages? You mixed these up. 2 Correct. 3 Q. And so you did not analyzed any 4 contractor data for Shell at the Dubbs 9 Unit; 5 correct? 6 A. That's correct. 7 Q. What contractor data did you analyze for 8 Exxon? 9 A. Where is the Exxon data? 10 Embedded in here is a variety of 11 contractor data. 12 Q. Okay. 13 A. In particular, there is two data points 14 on Mr. Stubbs. 15 Q. Can I clarify the record and say this is 16 -- what we're looking is Exxon Bates labeled number 17 16499 to 16842. I'm sorry to interrupt you. Go 18 ahead. 19 A. No, I think I was done. 20 Q. Well, you were telling me that the 21 contractor data that you analyzed in this exhibit 22 Exxon 16499 to 16842. 23 A. Okay. 24 Q. Go ahead. Could you explain the 25 contractor data that you analyzed in there? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 79 1 MR. DILLARD: Form. 2 THE WITNESS: There is a summary 3 of much of the contractor data divided in an Exxon 4 letter, and it covers the period 1989 -- I'm sorry. 5 Yes. 1989. And there is data specifically in April 6 3rd and April 5th, 1989, that includes data 7 representing where Mr. Stubbs was monitored. 8 BY MS. CLANCY: 9 Q. Okay. May I see? 10 A. I think that was while he worked for JE 11 Merrit. 12 Q. So the contractor data you've looked at 13 for Exxon is the May 1989 results of monitoring at JE 14 Merrit workers during NRU Column 7 turnaround? 15 MR. BUTHOD: Form. 16 BY MS. CLANCY: 17 Q. Is that correct? 18 A. Yes. 19 Q. That's some of the contractor data you 20 looked at. I'm going to enter that as Exhibit 13. 21 (DOCUMENT MARKED PLAINTIFF, SPENCER 22 DEPOSITION, EXH. NO. 13, FOR IDENTIFICATION.) 23 BY MS. CLANCY: 24 Q. Okay. What other data did you analyze 25 for Exxon Baytown? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 80 1 A. Well, there is other data that I believe 2 is in addition to that. There is contractor data from 3 other periods of time in here. 4 You have to look through. Here is 5 contractor data for Mundy. That's a function, you 6 have to flip through all these pages and find that 7 data. 8 Q. So the contractor data that's comprised 9 in Bates labeled Exxon 16499 through 16842, that would 10 be the remaining contractor data that you looked at 11 with respect to Exxon; correct? 12 A. It is incorporated with other Exxon data 13 in there, yes. 14 Q. To the extent there is contractor data 15 in Exxon 16499 through 16842, that would be the Exxon 16 contractor data that you reviewed? 17 A. Correct. 18 Q. Okay. Anything else? 19 A. That's it. 20 Q. You can put that back, please. 21 When you were working at NIOSH from 1980 22 to '81, what region were you responsible for? 23 A. I think I was there '80 to '82 or three. 24 Q. And what region were you responsible 25 for? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 81 1 A. Well, I was all over the country. There 2 wasn't a particular region. 3 Q. Okay. You were all over the United 4 States? 5 A. Yes. 6 Q. As part of their survey? 7 A. Well, I missed Hawaii. 8 Q. That's unfortunate. 9 A. I know. 10 Q. What, if any, petroleum refineries and 11 petrochemical facilities did you audit at that point? 12 A. One in particular was AMOCO Wood River 13 facility in Illinois. 14 I went to other refineries, and I've 15 been trying to actually think about the names of 16 those, and I don't recall other refineries. I went to 17 other smaller refineries as part of my NIOSH work, 18 maybe two others. 19 Q. But you don't recall what they were? 20 A. I know one was in California and -- I 21 was just all over the country in a two and a half year 22 period. 23 Q. What other industries were you looking 24 at? 25 A. Name something. I went to it all. I Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 82 1 went to any type of manufacturing or virtually any 2 type of business. 3 Q. How many types of businesses would you 4 say you visited in that two-year period? 5 A. How many types? 6 Q. I mean how many different? I mean, how 7 many -- what was the total number of businesses that 8 you -9 A. That I personally went to? 10 Q. Yes. 11 A. About 250. 12 Q. And what would you do at the sites once 13 you were there? 14 A. We basically did an audit of the 15 facility. We inventoried essentially what 16 occupational groups were present, what their exposures 17 were. 18 I reviewed industrial hygiene and other 19 safety related data, injury illness logs, material 20 safety data sheets, product labels and warnings. 21 Interviewed employees, management and discussed their 22 health and safety program. 23 Q. Were you reviewing industrial hygiene 24 data with respect to Benzene at AMOCO Wood River in 25 1980 to '82? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 83 1 A. Oh, I'm sure. And there were many other 2 things as well, but, yes, Benzene would have been a 3 constituent. 4 Q. About how long would you spend at each 5 facility when you went to audit it? 6 A. It would depend on the size and the 7 complexity, from hours to a week at a time. So it 8 varied. 9 Q. Would you ever spend longer than a week 10 at a facility? 11 A. I don't recall ever having done that, 12 no. 13 Q. When you were working for the Coast 14 Guard in 1982 to 1987 as a director of industrial 15 hygiene and occupational health programs, your 16 responsibility was not to supervise industrial hygiene 17 and occupational health programs at petroleum 18 refineries and petrochemical facilities; correct? 19 A. No, I didn't direct the programs at 20 refineries, that's correct. I did work at those 21 various chemical plants, steel mills, areas where 22 Benzene containing cargos would be loaded or 23 unloaded. And as part of the marine inspector's 24 process, I was evaluating exposures. 25 Q. Well, you were working at the loading Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 84 1 and unloading zones then, of petroleum refineries? 2 A. Generally, yes. 3 Q. And petrochemical facilities? 4 A. Yes. 5 Q. So you weren't doing like an internal 6 plant assessment of any of their industrial hygiene 7 programs; correct? 8 A. Yes, that's correct. 9 Q. You testified previously that 90 percent 10 of your time was spent in litigation and 10 percent 11 outside. Is that still the case today? 12 A. Sure that was me? I don't know that 13 I've ever testified to that. That's not the case. 14 Q. What is the case today? 15 A. I mean, it varies, and I think that's 16 what I've said before, because it's always been true. 17 Depending on the week or the month, I mean, it might 18 be five percent, it might be 40 percent of my time is 19 litigation related. But it varies. 20 Q. What do you do outside of litigation? 21 A. Industrial hygiene work. We do health 22 hazard assessments of the air monitoring, write 23 product warnings and labels, doing training of other 24 -- we do train the trainer programs for health and 25 safety on related issues. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 85 1 We have various government projects 2 we're involved in. Help sink ships to make artificial 3 reefs. I mean, it's quite diverse. 4 Q. What percentage of your time personally 5 is spent, not your company time, but your personal 6 time is spent on litigation versus non-litigation 7 activities? 8 A. Well, those figures I gave you was for 9 me. 10 Q. On a yearly basis? 11 A. Yes, it is. And it varies. I couldn't 12 tell you -- I couldn't begin to tell you on a yearly 13 basis. I just don't maintain any sort of analysis of 14 my time in that fashion. I do the same work 15 regardless of whether it's litigation or 16 non-litigation. 17 Q. Do you keep track of what bills, what 18 invoices you submit in the context of litigation and 19 what money you receive in that context? 20 A. Oh, no. 21 Q. You don't keep track of it? 22 A. No, it's not -- that is just not 23 important to me. No. 24 Q. So how does your accounting system work 25 when you submit an invoice? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 86 1 A. It's based on a project. We assign a 2 project and it's not determined whether it's a 3 litigation project or a non-litigation project. 4 Q. What field work do you do now outside of 5 litigation? 6 A. All the things I described. 7 Q. Where do you do health hazards 8 assessments outside of litigation? 9 A. Gosh. I mean, it could be anywhere. I 10 mean, plants around the country. You mean like 11 geographically? 12 Q. Well, when was the last time you did a 13 health hazard assessment outside of litigation? 14 A. I'm trying to think of the last 15 industrial hygiene sampling. I mean, in some context 16 I do it every day. I get calls from people looking 17 for advice and getting information. And that's what I 18 do. 19 The last I did was probably a sampling 20 for -- we do a lot of environmental and 21 microbiological sampling, and it was for a facility up 22 north of Baltimore here. 23 Q. When was that? 24 A. A month ago. 25 Q. And did you personally go? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 87 1 A. Yes. 2 Q. I'm looking for your folder that we 3 labeled "invoices," if you see. 4 A. I think it was separate from a folder. 5 Q. Oh, there it is. The invoices shown 6 here only show invoices to Fulbright and Jaworski. So 7 have you submitted no invoices to Baker Botts or King 8 & Spalding today? 9 MR. DILLARD: If we haven't, we're 10 going to fix that. 11 THE WITNESS: Sorry. That would 12 be true. This is all that we have today that I've 13 submitted. 14 BY MS. CLANCY: 15 Q. So you've only billed Fulbright & 16 Jaworski, who represents Shell on behalf of this case 17 today; correct? 18 A. Yes. 19 Q. Does that include all of the time that 20 you've spent on the case to date, the invoices that 21 you brought today? 22 A. Well, no. I mean, it doesn't represent 23 the time that I've spent this week preparing for this 24 deposition. 25 Q. Okay. So other than the time that you Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 88 1 spent this week, those invoices reflect the time to 2 date that you've spent on the case? 3 A. I believe that to be true. 4 Q. Can I see that back? 5 A. That's not marked paid, is it? 6 MR. DILLARD: She has got another 7 stamp for that. 8 BY MS. CLANCY: 9 Q. One of this things on your invoice says, 10 "presentation of materials," which was from the March 11 31st, 2006 invoice. What are presentation of 12 materials? You billed Fulbright and Jaworski $175.00 13 for that. 14 A. I'd have to go back and look and see 15 what I've done -- what that was. I don't know 16 offhand. I don't recall. 17 Q. What presentation have you worked on 18 with respect to this case? 19 A. I don't know if it was actually a 20 presentation material. It may have been something 21 that's in the file here and someone -- it just got 22 coded that way. It may not be correct. Doesn't sound 23 like it's even correct. 24 Q. It says "preparation of summary 25 materials," which you brought today; correct? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 89 1 A. Yes. 2 Q. But I don't see any presentation 3 materials here. 4 A. Yeah, me neither. So that's why I'm 5 thinking that it was probably someone miscued. 6 Q. Have you helped, as you say, somebody in 7 preparing presentation materials in this case? 8 A. I have not. 9 MR. DILLARD: We don't have any 10 either, I'll tell you that. 11 THE WITNESS: No. 12 MR. DILLARD: Should save them 13 more money off the bills. 14 THE WITNESS: I know. It's 15 causing me trouble now. 16 MR. DILLARD: Pesky bills. 17 BY MS. CLANCY: 18 Q. Part of your bill is for researching 19 scientific literature. What scientific literature did 20 you research? 21 A. Well, a lot of literature. Looking 22 particularly at one of the things we look for is data 23 on -- that would be representative of what 24 Mr. Wilkinson, what Mr. Stubbs claimed to have been 25 doing, and the types of environments. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 90 1 So we looked for that limited data. But 2 most of the literature that we would have found and 3 found applicable is in this folder marked 4 "literature." 5 Q. And you brought that with you today? 6 A. Yes. 7 Q. When you rely on literature or text for 8 the purposes of providing an opinion in a case, is the 9 literature that you're relying on -- do you rely on 10 generally accepted literature in the scientific 11 community? 12 MR. BUTHOD: Form. 13 THE WITNESS: Well, sure, I think 14 broadly. Although on some occasions there is data or 15 there are studies that is not disbursed within the 16 industrial hygiene community. But I'll certainly 17 consider that literature, and base my opinion on what 18 I believe are the merits of that work. 19 BY MS. CLANCY: 20 Q. Well, would you -- if you rely on a text 21 or a book in those contexts that you're providing your 22 opinion in a case, would you rely on authoritative 23 text in that field of industrial hygiene or one that 24 discredited? 25 A. I'm not aware of one that discredited. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 91 1 And I don't know what you mean by "authoritative." 2 There is information in books that, again, you have to 3 make professional judgments. It's not always 4 absolutely correct. 5 Papers are not always absolutely 6 correct. I've found errors in papers. There's errors 7 in books that I've found. So you have to make some 8 assessment of that information. 9 Q. You served as the past president of, a 10 section at least of the AIHA; correct? 11 A. Yes. 12 Q. And is that a reputable organization in 13 the scientific community? 14 A. Well, it's a part of an association. 15 And to answer your question, I think generally, yes, 16 it would be considered that. 17 Q. And generally, are the publications that 18 come out of the AIHA peer reviewed and consistent with 19 the basic accepted principles of industrial hygiene? 20 A. They're not all peer reviewed. They 21 come out in the journal. There is some literature 22 that comes out that is not peer reviewed. And like 23 any journal, there can be -- there is good literature, 24 and there's literature that slipped by. 25 Q. Well, what about textbook publications Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 92 1 from AIHA? 2 A. I provide the same comment. 3 Q. That some of them may not be up to the 4 scientific standard that you would accept and some 5 might be? 6 A. Yes, I can't think of any book or any 7 field that there are such an absolute that everything 8 is absolutely correct, nor is it absolutely wrong. 9 So you've got to make -- read 10 information, analyze that information, and make some 11 informed decisions about how you're going to process 12 that material. 13 Q. When did -- you testified previously 14 that prior to the mid 1970s, that no one was aware of 15 the cancer effects of Benzene. Do you still hold that 16 opinion today? 17 A. That no one was aware? 18 Q. The companies weren't generally aware of 19 the hazards of cancer causing effects? 20 A. I don't know exactly what I said. But 21 it is my understanding that NIOSH in 1974 in it's 22 Benzene criteria document did not list Benzene as a 23 carcinogen, and did not revise that document until 24 1976, when they believed was definitive information 25 became available. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 93 1 So I can't say that no one under no 2 circumstances. But generally accepted within the 3 scientific community, it wasn't until the mid 1970s 4 that information became available. 5 Q. Are you aware if Exxon was aware prior 6 to the mid 1970s that Benzene could cause leukemia? 7 A. I'm not aware of their specific 8 knowledge in that area. Nor am I aware as to what 9 dose they believed caused leukemia. Nor am I aware of 10 what type of leukemia was associated with it. 11 Q. And how about Shell? Are you aware if 12 they knew prior to mid 1970s that Benzene could cause 13 leukemia? 14 A. Same answer. 15 Q. And Union Carbide? 16 A. Same answer. 17 Q. Once -- a premises owner needs to keep 18 -- should warn folks of workers on its premises as to 19 the hazards that exist on the premises, do you agree 20 with that? 21 MR. DILLARD: Object to form. 22 MR. BUTHOD: Form. 23 THE WITNESS: Only to the extent 24 that it's a hazard that the individual, a contractor 25 coming on that premise are not aware of the hazards. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 94 1 BY MS. CLANCY: 2 Q. And they have an obligation to properly 3 label the hazard, do they not? 4 MR. BUTHOD: Form. 5 THE WITNESS: Well, I'm not sure 6 what you mean by "label." Do you have a specific 7 example? 8 BY MS. CLANCY: 9 Q. Well, one has to comply with the hazmat 10 regs; do you not? 11 A. Well, hazmat regs are different. That 12 deals with DOT and transportation of hazardous 13 materials. 14 Q. Okay. And are you -15 A. I'm sorry, so are we talking about that 16 or within the workplace? 17 Q. Are you stating that the hazmat regs do 18 not apply to the sentence in this case? 19 A. Well, I only know that it's at issue 20 here. You're using a term that is very specific to my 21 industry. So hazmat deals with department of 22 transportation placarding, and the regulatory process 23 that deals with transportation of materials. 24 Q. So is it your testimony today that the 25 hazardous materials regulations then only apply to the Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 95 1 issues of transporting hazardous materials? 2 A. Yes, and that's under 49 CFR. 3 Q. What about 29 CFR 1200? 4 A. That's hazard communication standard. 5 Q. Okay. 6 A. Which went into effect in 1986. I'm 7 sorry, what's the question? 8 Q. The question is -- well, prior to 1986, 9 is it your opinion that places such as Exxon and Shell 10 should have told workers coming on their premises and 11 identify to them where hazardous substances are? 12 MR. DILLARD: Objection. 13 THE WITNESS: Sure, I would agree 14 that a premise owner should tell or make aware if the 15 contract employee is unfamiliar with a process, or 16 unfamiliar with a particular contaminant or chemical, 17 and make them aware of it, that it does exist. 18 BY MS. CLANCY: 19 Q. And they should make them aware of the 20 hazards of that chemical? 21 MR. BUTHOD: Form. 22 THE WITNESS: If it's something 23 that is unknown to the people coming onto that site, 24 then, yes. 25 BY MS. CLANCY: Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 96 1 Q. So for example -2 A. But to the point that there is accepted 3 knowledge of the potential hazards for that product. 4 Q. Well, let's say with Benzene, that Shell 5 and Exxon and Union Carbide, should they have told 6 folks coming -- workers coming on their premises as to 7 potential hazards that might arise with contact of 8 Benzene on their premises? 9 MR. DILLARD: Objection. 10 MR. BUTLER: Objection. 11 THE WITNESS: Well, I mean, 12 depending -- if it is a contractor that is experienced 13 and has done work in refineries and chemical plants, 14 they would know the potential health hazards that are 15 there. 16 Not only health hazards, but safety 17 hazards in working with those materials. And would be 18 aware of the occupational health standards and 19 guidelines that were in place for not only the premise 20 owner, but for a contractor employer to ensure that 21 the employees were not exposed to above those levels. 22 BY MS. CLANCY: 23 Q. But you have no specific knowledge as to 24 any specific contractor's knowledge of the hazards of 25 Benzene or the applicable guidelines that apply to Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 97 1 that in this case; correct? 2 A. Correct. I'm not addressing that 3 specifically. It's my understanding that Brown and 4 Root and others will come and present that 5 information. 6 Q. What is your understanding -- how is 7 your understanding based on that? I mean, what do you 8 base that understanding on? 9 A. I've been told by the attorneys in this 10 case that Brown and Root would make a presentation. 11 Q. What presentation did they tell you that 12 they would make? 13 A. That they had knowledge of potential 14 hazards of Benzene. And they had and accepted the 15 responsibility as an employer to manage their 16 employees' exposures. 17 Q. What else did they say about that? 18 A. I think that about covers it. 19 Q. Which attorney told you that? 20 A. Mr. Dillard. 21 Q. Anybody else? 22 A. There may have been one of the other 23 attorneys here, but I don't -24 Q. And who did they -25 A. I didn't make note of who told me that. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 98 1 Q. And who did they say from Brown and Root 2 would come and testify to that? 3 A. I did not get that information. 4 Q. Did they say other contractors would 5 come and testify? 6 A. I do not recall that. They may have. I 7 do not specifically recall. 8 Q. Why is it important to do -- well, let 9 me back up. 10 You admit that Benzene is a carcinogen? 11 You're aware of that; correct? 12 A. Sure, in sufficient dose, yes. 13 Q. Why is it important to do short term 14 exposure level monitoring? 15 A. Well, you do the short term monitoring 16 to capture short term tasks. 17 Q. And why is it important to capture short 18 term tasks? 19 A. Well, because you're looking to evaluate 20 their exposure, and that's the extent of the task. 21 Q. Why do you need to do short term 22 monitoring in addition to eight-hour time-weighted 23 average monitoring? 24 A. You don't have to. You may not have to 25 do it in addition to. If it's a short term task only, Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 99 1 you're just looking at short term activities and 2 comparing that to the S.T.E.L. 3 Q. Why does OSHA recommend that -- or why 4 does OSHA require that you do not only an eight-hour 5 time-weighted average, but in addition to that short 6 term exposure limit monitoring? 7 MR. BUTHOD: Form. 8 THE WITNESS: I don't know that 9 they do require that. You only do it if it's a short 10 term activity. They do not require short term 11 sampling unless there is an activity that would be 12 captured within that 15-minute period. 13 BY MS. CLANCY: 14 Q. And is that because then therefore, the 15 short time exposure monitoring is more representative 16 of the actual exposure occurred than in short term 17 activities and spreading that over an eight-hour time18 weighted average basis? 19 A. I wouldn't say it's more 20 representative. It tells you what the level within 21 that short term period. But you're not doing a series 22 of short term samples throughout the course of an 23 eight-hour day. It is designed to evaluate short term 24 tasks. 25 Q. Because if you -- it follows then if you Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 100 1 don't take short term exposure level monitoring for 2 short term tasks, then you won't know the intensity of 3 the exposure possibilities that occurred during that 4 short term time period; correct? 5 A. Well, actually, you could determine that 6 even taking an eight-hour sample. You could look at 7 the total amount of Benzene, and instead of dividing 8 it by the volume of air samples over and eight-hour 9 period, you could divide it by the volume of air 10 sampled over a 15-minute period. You could do the 11 same thing. 12 But again, the short term sample for 13 S.T.E.L. was designed to be able to evaluate short 14 term tasks. 15 Q. And the purpose of that is then to 16 analyze what potential exposure you had while 17 performing short term tasks; correct? 18 A. Yes. 19 Q. So to get the most accurate data point 20 then for short term tasks, you'd either have to do the 21 15-minute exposure S.T.E.L. monitoring, or as you just 22 explained, take the eight-hour time-weighted average 23 and then back into the 15-minute task; is that 24 correct? 25 A. Yes. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 101 1 Q. Why is it important to do monitoring in 2 general for Benzene? 3 A. Well, if you're in a situation where you 4 believe that there is a potential for over exposure to 5 Benzene, you want to be able to document that so you 6 can take measures to ultimately eliminate or prevent 7 exposures from exceeding occupational health 8 standards. 9 And if necessary, based on frequency of 10 that exposure for Benzene in particular, put someone 11 in a medical monitoring program. 12 Q. So let me back up. You say that in 13 there if there's a situation -- it's important to 14 monitor for Benzene exposure because if there is a 15 situation where there is a potential for exposure, you 16 want to take measures -17 A. Over exposure. 18 Q. For over exposure to Benzene, you want 19 to take measures to -- well, first of all, I would 20 assume you want to understand the extent of the 21 exposure; correct? 22 A. Yes. 23 Q. And then once you understand it -24 monitoring allows you to then understand the extent of 25 the exposure, and then allows you to proactively Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 102 1 present future exposures; correct? 2 A. Yes. Or to insure that the actions that 3 you've taken are, in fact, effective at managing that 4 exposure. 5 Q. I see. So in a situation where you're 6 aware that there may be the potential for over 7 exposure, doing monitoring allows you to A, see if 8 you've corrected the potential for over exposure? 9 A. Right. 10 Q. Or B, take measures that allows you to 11 evaluate measures that you might need to prevent 12 future exposures; correct? 13 A. Correct. 14 Q. Would it also allow you to analyze what 15 personal protective equipment might be necessary in 16 that area? 17 A. Yes. 18 Q. Would monitoring also enable you to know 19 what type of engineering controls need to be put in 20 place? 21 A. Well, it allows one to determine what 22 level and what type of protective measures should be 23 instituted. 24 Q. And the protective measures include, as 25 an industrial hygienist, the protective measures that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 103 1 you would include after analyzing your monitoring data 2 would be engineering controls; correct? 3 A. One looks at those, yes. Again, given 4 the circumstances, given the location, given the 5 environment, you look for feasible realistic types of 6 controls. 7 Q. Okay. Such as? One might be 8 engineering controls? 9 A. That is possible, yes. 10 Q. One might be personal protective 11 equipment? 12 A. Correct. 13 Q. One might be warnings? 14 A. No. 15 Q. Well, I thought -- and correct me if I'm 16 wrong. But I thought one of the basic units of 17 industrial hygiene is that if you can't eliminate the 18 hazard, you then control for the hazard. If you can't 19 control, then you warn. Is that wrong? 20 A. Well, no. 21 Q. Then tell me how -22 A. That not a tenet of industrial hygiene. 23 Warnings are, for the most part, they're not useful in 24 controlling exposures because of the behavior of 25 individuals. You control exposures by, as you've Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 104 1 described, substitution through engineering controls 2 or personal protective equipment. 3 Q. But you feel like warnings alone are not 4 enough to control for the hazard? 5 A. That does not control for the hazard. 6 Q. So what you should be doing to control 7 for the hazard is instead of merely just warning, you 8 should also either eliminate the hazard or provide 9 personal protective equipment; is that correct? 10 A. Or engineering controls. 11 Q. Is that right? 12 A. Yes. 13 Q. Okay. Have you analyzed any of the work 14 permits of Shell or Exxon issued to contractors? 15 A. The specific work permits? 16 Q. Yes. 17 A. I'd have to look to see whether they're 18 included in any of these documents. Let me first go 19 through a summary. (WITNESS EXAMINING DOCUMENT.) 20 MR. BUTHOD: I might be able to 21 facilitate this at least from Exxon. I don't believe 22 that material contained any specific work permits. I 23 mean, if you look at all of the summaries, I don't 24 think you'll find anything in there. 25 THE WITNESS: I'm looking for the Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 105 1 specific work permits, and I just don't remember 2 whether I've seen them in this case or not. So I have 3 to go through all this to determine whether if I 4 actually have seen them in the materials. 5 BY MS. CLANCY: 6 Q. Are you going to be providing an opinion 7 with respect to the deficiency of the work permits and 8 any safety information provided by work permits by 9 means of work permits from Exxon or Shell or Union 10 Carbide for its contractors? 11 A. I don't know that it specifically goes 12 down to that level in the work permits. It's more of 13 the other documents that I've already pointed to that 14 I reviewed, and are in the boxes and I have 15 summarized. 16 Q. So then it's the documents that you've 17 reviewed and summarized, and only those documents that 18 you're doing to be providing an opinion on with 19 respect to their -- these defendants' interaction with 20 contractors? 21 A. I hesitate to say it's just these 22 documents. I understand there are still a lot of 23 depositions going on and even discovery. So there may 24 be things that are uncovered or rise to the surface, 25 which, you know, become important. But I don't know Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 106 1 of anything else as I sit here today. 2 Q. Well, as you sit here today, can you 3 site for me any work permit given to any contractor 4 that you have looked at from defendant Shell, Exxon or 5 Union Carbide? 6 A. (WITNESS EXAMINING DOCUMENT.) I'm 7 looking in one other spot. 8 I do not have an actual work permit as 9 you've described it. 10 Q. Okay. So you have no opinions today 11 with respect to the adequacy of the permitting process 12 or the deficiency of any warnings provided to 13 contractors by means of work permits; correct? 14 MR. MAHER: Object to form. 15 THE WITNESS: Well, I haven't in 16 this case seen the word "permits." So I cannot 17 comment on them if I have not seen them at this point. 18 BY MS. CLANCY: 19 Q. Do you plan to offer an opinion on the 20 sufficiency of the warnings provided specifically to 21 contractors by any means of the permit in process? 22 MR. MAHER: Object to form. 23 THE WITNESS: Well, since I have 24 not seen them at this point, no. I would comment, 25 however, that there are documents such as the Union Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 107 1 Carbide document, which is contractor work in Benzene 2 areas. 3 BY MS. CLANCY: 4 Q. Can I see that? 5 A. Sure. 6 Q. Does this document say something about 7 work permits? In legal Scott, 3598. 8 A. I didn't see anything offhand that talks 9 about the work permits. It talks about the process. 10 Q. It talks about Union Carbide's process? 11 A. This talks about the -- yes, their 12 process of hiring contractors and conveying 13 information to those contractors as necessary. 14 Q. Okay. 15 MS. CLANCY: We'll mark that as 16 Exhibit Number 14 for this deposition. 17 THE WITNESS: I'll take that out 18 of here. 19 (DOCUMENT MARKED PLAINTIFF, SPENCER 20 DEPOSITION, EXH. NO. 14, FOR IDENTIFICATION.) 21 BY MS. CLANCY: 22 Q. Is that it? 23 A. Yes. 24 Q. So you were not able to identify any 25 permits that you've reviewed specifically in this Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 108 1 case; correct? 2 A. That's correct. I do not have those 3 permits at this point in time. 4 Q. What are your opinions with respect to 5 Shell's policies and procedures as it relates to its 6 contract personnel and Benzene? 7 MR. DILLARD: Object to form. 8 THE WITNESS: Based on the 9 policies and procedures that I have reviewed that they 10 adequately provided a program that would have 11 protected -- in conjunction with the contractor's 12 employer protected their health and safety. 13 BY MS. CLANCY: 14 Q. And what do you derive your opinion on 15 for that? 16 A. Based on my review of the policies and 17 procedures that I've brought with me today, and based 18 on the results of the air monitoring data. 19 Q. And which policies and procedures 20 specifically are you referring to? 21 A. Well, they're listed here in Exhibit 22 Number 9. 23 Q. Okay. May I see that? Thank you. 24 Okay. Based on your review of the 25 training manual memorandum and data set forth in Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 109 1 Exhibit 9, that is what you based your opinion on that 2 Shell adequately provided a program adequate for its 3 contractors at the Shell Deer Park facility? 4 MR. DILLARD: Form. 5 THE WITNESS: Yes. 6 BY MS. CLANCY: 7 Q. Did you talk to any co-workers of 8 Mr. Stubbs or Mr. Wilkinson in forming your opinion in 9 this case? 10 A. No. I reviewed their testimony. 11 Q. Did you speak to them personally? 12 A. I did not. 13 Q. Is there a reason why you did not speak 14 to them personally? 15 A. I suspect there is. I don't know what 16 it is. 17 Q. Well, would you have liked to have 18 spoken to them personally to formulate your opinion? 19 A. I've asked many times in the past to 20 speak with plaintiffs, and have never been allowed to 21 do so. 22 Q. I'm not talking about the plaintiffs. 23 I'm talking about their co-workers. 24 A. Well, same answer. I have asked to talk 25 with them in the past. I did not do that in this Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 110 1 case. But in other cases I've been involved in, I've 2 asked to do that, and have been prevented by 3 plaintiff's attorneys from doing so. 4 Q. Well, have you ever asked to speak -5 object as non-responsive. 6 Have you ever asked to speak with any of 7 the co-workers in this case? 8 A. Not in this case. 9 Q. Is it your understanding that the 10 co-workers are somehow under plaintiff's control? 11 A. In this case? 12 MR. DILLARD: Some of them are 13 your clients. 14 THE WITNESS: In this case? 15 BY MS. CLANCY: 16 Q. Yeah, not the plaintiffs. 17 A. Yeah, I'm sorry, in this case? 18 Q. Yes. 19 A. I don't know if they are or not. I 20 suspect there are some who are not under their 21 control. 22 Q. Is that something that you would like to 23 do, is speak to the co-workers to better formulate 24 your opinion in this case, or do you feel the 25 sufficiency -- the data that you've reviewed to date Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 111 1 is sufficient for your opinions? 2 A. I do believe the data and the procedures 3 speak for themselves. But if given the opportunity to 4 speak with a co-worker, I certainly would do that. 5 Q. And to date, you have not spoken to 6 anyone from Brown and Root or Mundy with respect their 7 experience as to Shell's procedures? 8 A. Correct. 9 Q. Or any contractor who worked at Shell, 10 you have not spoken to them; correct? 11 A. That's correct. 12 MS. CLANCY: Let's change the 13 tape. 14 VIDEOGRAPHER: End of tape number 15 2 in the video deposition of John Spencer. The time 16 is 13:04:06. 17 (WHEREUPON A RECESS WAS TAKEN.) 18 VIDEOGRAPHER: This marks the 19 beginning of tape Number 3 in the deposition of John 20 Spencer. The time on the screen is 13:29:22. We're 21 back on the record. 22 BY MS. CLANCY: 23 Q. What is your opinion, sir, with respect 24 to Exxon's policies and procedures as to its 25 contractors on its premises at Exxon based on -- Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 112 1 concerning Benzene? 2 A. That their policies and procedures in 3 tandem with their data represent that exposures were 4 well managed for tractors. 5 Q. And what do you mean "well managed"? 6 A. Meaning that based on the data I 7 reviewed that it is -- one would anticipate levels of 8 exposure to be well below the occupational health 9 standards. Or in circumstances where there may have 10 been exceedances of the health standards, that the 11 individuals would have been fittted in appropriate 12 protective devices to eliminate or reduce exposures. 13 Q. So if your testimony is that I guess 14 it's two part. One -- well, let me ask you this: 15 What was the internal Exxon standard for purposes of 16 Benzene levels at its Baytown's facility? 17 A. At what point in time? 18 Q. Prior to 1998. 19 A. I'd have to look that up to tell you the 20 specific number prior to '88. 21 Q. You're not aware as you sit here today 22 what internal levels, if any, of exposure that Exxon 23 attempted to enforce at its Exxon Baytown premises 24 prior to 1988? 25 A. No. I've looked at it. I've just Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 113 1 looked at so many materials I just don't have 2 everything committed to memory, including Exxon's 3 internal guidelines prior to 1988. 4 Q. Okay. Have you -- and are the Exxon's 5 internal guidelines prior to 1988 in the materials 6 that you reviewed for today? 7 A. I believe so. I have seen that number, 8 so I anticipate that they're in there in some form. 9 Q. Do you know what Exxon -- if Exxon had 10 an internal level for short term exposure limits? 11 A. I recall that they -- yes, they did. 12 Q. What was that? 13 A. They had a one minute -- and I'm not 14 sure how they really applied it. It wasn't clear to 15 me how they applied it, but they had a one minute 16 number of 250 PPM per minute. 17 Q. Okay. And that is above what is the 18 current OSHA STL limit; correct? 19 A. No, it is not. 20 Q. It's not? Okay. 21 A. I'm sorry. Above the current? 22 Q. Yes. 23 A. You mean today? 24 Q. Uh-huh 25 A. It wasn't above the one they were -- at Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 114 1 the time they were using it. 2 Q. It wasn't above -- prior to 1988, my 3 question is the STL of 250 parts per million per 4 minute that Exxon had in place prior to 1988 is above 5 the current -6 A. Yes, I think when you calculate it out, 7 it comes to 6.6 parts per million. So it's slightly 8 above today's standard, 2006. It wasn't above the 9 number that they used at the S.T.E.L. when it was -10 they were using it when it was in effect as I 11 understood it. 12 Q. Could you show me how you do the 13 calculations that you got it would 6 for 15 minutes? 14 A. Take -- pull out your calculator. 15 Q. I'll have to do it by -16 A. You take 250 and divide it by 15. 17 Q. Well, let's see, it's 250 for a 18 one-minute period; right? 19 A. Correct. 20 Q. And so what would it be for two minutes? 21 A. There is no such thing. There is no 22 standard or anything like that. You could divide it 23 by two if you want for two minutes. 24 Q. I mean, does it break down by -25 A. It would be 125. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 115 1 Q. Okay. So it doesn't -- in normal 2 industrial -- I'm asking this for my own education 3 really -- in -- scratch that. 4 What was Shell's internal limit prior to 5 1988 with respect to Benzene? 6 A. Again, I do not specifically recall if 7 it was any different from the OSHA standard at the 8 time. I'd have to look. I just don't have it 9 committed to memory. 10 Q. And are you talking about the ten part 11 per million over an eight-hour time-weighted average 12 standard? 13 A. Correct. 14 Q. So you don't recall that Shell's was any 15 different than that prior to 1988? 16 A. I just don't specifically recall whether 17 it was or not. I'd have to look it up to tell you if 18 they were any lower. 19 Q. How about Union Carbide? 20 A. Same answer. 21 Q. You don't know as you sit here today 22 what their internal exposure limit was? 23 A. Again, it's not something I committed to 24 memory. I'd have to go back through the documents and 25 try to find that. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 116 1 Q. Do you have that in documents to that 2 today, for example, the Shell exposure limit, internal 3 exposure limits? 4 A. I do not recall specifically seeing it. 5 But again, it doesn't mean it's not in there. I would 6 guess that it is somewhere in one of those documents, 7 one of their -- in some part of their documents. But 8 I just didn't specifically look for that. 9 Q. So in other words, you're able to 10 provide your testimony today as with respect to the 11 adequacy of their procedures as to safety in 12 contractors without knowing what their internal 13 exposure limits were for Benzene; correct? 14 A. Well, I'm applying it to today's 15 standards, not to 1988. So if they were protective 16 based on today's standards, then certainly they're 17 going to have been protective of the standards in 1988 18 and prior. 19 Q. So your opinion is that they were Exxon 20 -- you think Exxon was protective of its contract 21 workers according to the standards of OSHA as 22 promulgated today, with respect to Benzene; is that 23 correct? 24 A. Sure, that was the data that we looked 25 at earlier today. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 117 1 Q. And that being the one part per million 2 over an eight-hour time-weighted average? 3 A. Correct. 4 Q. Would be what -- the exposure level 5 should not exceed one part per million over an eight6 hour time-weighted average; is that correct? 7 A. That is correct. 8 Q. Because that is -- and your opinion 9 therefore, is based on your belief that Exxon did not 10 exceed for its contractors one PPM per an eight-hour 11 time-weighted average prior to 1988; is that correct? 12 A. Well, no. I would not state it that 13 way. I think what I said before was that in general, 14 the data represents that the exposures were well 15 managed even below today's occupational health 16 standards. 17 However, I do recognize that there were 18 excursions above that on some occasions. However, one 19 of two things happened at that point. It was 20 identified and measures were put into place to 21 eliminate that in the future. Or there were already 22 preventative measures, respiratory protection 23 generally, or procedures clearing lines that were 24 designed to further eliminate harmful exposures. 25 Q. Okay. So I'm talking about the period Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 118 1 1970 to 1980 for Exxon, okay, at its premises at Exxon 2 Baytown. 3 A. Correct. 4 Q. So your opinion is that, first, that the 5 procedures with respect to contractors in terms of 6 insuring that the contractor's levels of exposure to 7 Benzene were safe. First of all, your opinion is that 8 Exxon had those procedures well managed even by 9 today's occupational exposure standards; is that 10 correct? 11 A. In general that is true, yes. 12 Q. Would you say on average that is true? 13 A. Based on the data I reviewed, yes. 14 Q. So you didn't review any data showing 15 the average contractor exposure at Exxon Baytown in, 16 for example, 1987? 17 A. No, I think the data we looked at was 18 from 1988. I suspect there is other data that you 19 will see from Brown and Root for that time period 20 where they were monitoring their people. 21 Q. Do you have that data? 22 A. I do not. 23 Q. Were you proved that data? 24 A. No, that's what I'm saying. I don't 25 have it, as I said before, but I think that's what the Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 119 1 Brown and Root people will be bringing to the table. 2 Q. Why do you think that? 3 A. Based on discussions I had with the 4 attorneys. 5 Q. Have you talked to anybody from Brown 6 and Root about that data? 7 A. No. 8 Q. Have you talked to any experts in this 9 case, who are testifying in this case? 10 A. Yes. 11 Q. Whom have you spoken to? 12 A. Carolyn Phillips. 13 Q. And she is an expert testifying in this 14 case? 15 A. As I understand it, that's the case. 16 Q. And who is Carolyn Phillips? 17 A. She is an industrial hygienist who was a 18 long time Shell professional. 19 Q. And what did you talk about with Carolyn 20 Phillips? 21 A. The Shell historical estimate that she 22 was a part of. 23 Q. And what did she say to you about that? 24 MR. DILLARD: Object to the form. 25 THE WITNESS: She indicated that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 120 1 based on her knowledge as being one of the authors and 2 intimately involved in that study that it was misused, 3 misapplied by the plaintiff's industrial hygiene 4 expert. That he did not understand the purpose of 5 that study and the limitations in the use of the 6 information that was in that estimate. 7 BY MS. CLANCY: 8 Q. I'm going to put a big circle around 9 that and come back to it in a minute. I just want to 10 put a bow on this one -- the first topic we were 11 talking about, the Exxon and the contractors. 12 A. Okay. 13 Q. Okay? So the data that you reviewed 14 with respect to Exxon and its contractors was 1988; 15 correct? 16 MR. BUTHOD: Form. 17 THE WITNESS: Yes. Specifically 18 what we determined to be contractors Brown and Root 19 was from 1988. 20 BY MS. CLANCY: 21 Q. And you did not review any data from 22 Exxon with respect to its contractors or part per 23 million exposure of its contractors prior to -- from 24 1987 or prior? 25 A. I did not see that data. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 121 1 Q. That was not provided to you by Exxon; 2 is that right? 3 A. That's correct. 4 Q. So you're basing -- when you say you're 5 basing your opinion that even by today's standard the 6 occupational exposures to Exxon contractors were well 7 within today's limit, you're basing that opinion on 8 employee exposure data? 9 A. Well, certainly I've included that. 10 Yes, employee exposure data. 11 Q. Because my time period I'm asking you 12 about is -- I want to ask you about 1970 to 1987 now 13 at Exxon Baytown? 14 MR. BUTHOD: Form. 15 THE WITNESS: Okay. 16 BY MS. CLANCY: 17 Q. Are you of the opinion that during that 18 time period, that the exposure to contractors was well 19 managed even by today's occupational exposures? 20 MR. BUTHOD: Form. 21 THE WITNESS: Well, I can't say 22 from the 1970 let's say '75 period. If I look at the 23 procedures and the policies -- let me look at 24 something first. And we're talking about Exxon; 25 correct? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 122 1 BY MS. CLANCY: 2 Q. Yes. 3 A. Actually, some of these practices at 4 Baytown go back to 1971. So I believe to answer your 5 question, I can't speak specifically about the data. 6 But again, the practices, policies and procedures that 7 were in place in my view were designed and implemented 8 to effectively manage exposures, at least to below the 9 contemporary health standards. 10 Q. And contemporary health standards is one 11 part per million? 12 MR. BUTHOD: Form. 13 THE WITNESS: Well, no. I mean, 14 for the time. The period in 19 -- you started 1970, 15 so it's 25 parts per million. 16 BY MS. CLANCY: 17 Q. How about let's say 1980? Was there a 18 time when your opinion is that it changed at Exxon? 19 Is there a difference between Exxon 1972 and Exxon 20 1980? 21 A. I can't say. I don't have empirical 22 data to say that there was any change at all. It may 23 have always been real well as it was in the '80s. 24 Q. Okay. Was it -25 A. But -- Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 123 1 Q. Go ahead. I didn't mean to interrupt. 2 A. Again, the practices, procedures and the 3 programs would indicate that Exxon was managing those 4 exposures to control them to below the occupational 5 health standards at the time. 6 Q. And here is my question. You're saying 7 that the practices and procedures and programs would 8 indicate that Exxon was managing its exposures to keep 9 it below exposure levels at the time. So are you 10 saying to keep it below ten parts per million? 11 A. Yes. 12 Q. But you're not saying that Exxon kept 13 its exposures in the '70s and '80s below ten parts per 14 million; are you? 15 A. I can't say. That could have been the 16 case. I just can't say. 17 Q. Would you say then -18 A. And it's also a function of what unit 19 someone was working in, what the product was and the 20 Benzene content of that product. That's all the 21 information that you need to understand what the 22 exposure could have been or would have been at that 23 time. 24 Q. Well, do you need that information then 25 to say whether or not Exxon was behaving or handling Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 124 1 appropriately its relations with its contractors? 2 MR. BUTHOD: Form. 3 THE WITNESS: No, that's different 4 from specifically understanding specific exposures. 5 That is a different item. 6 BY MS. CLANCY: 7 Q. Let me back up. Maybe I don't 8 understand your opinion. 9 I thought part of having a program that 10 adequately makes a safe place for contractors is also 11 insuring that the contractors are not over exposed to 12 Benzene; correct? 13 A. I think that that responsibility is on 14 the contractors to insure that their employees are not 15 over exposed. That is their responsibility. 16 Q. Okay. So you're saying that Exxon had 17 no responsibility to make sure its contractors were 18 not over exposed? 19 A. No, that's not what I'm saying. 20 Q. What are you saying then? 21 MR. BUTHOD: Form. 22 THE WITNESS: I'm saying the 23 ultimate responsibility lies with the employer, in 24 this case a contractor. Exxon would have had a 25 responsibility to convey information if that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 125 1 contractor had no knowledge of a potential hazard in a 2 particular work area. 3 BY MS. CLANCY: 4 Q. Okay. What about -5 A. But their role was to convey that 6 information. And that's still the way it works today. 7 And then it's the employer, the contractor had the 8 responsibility ultimately to protect its employees. 9 Q. Did Exxon had have a responsibility to 10 monitor its contractors to insure that there were no 11 over exposures to Benzene? 12 A. No, it does not. And, in fact, in many 13 situations they're not allowed to do that sort of 14 thing. Another employer such as a contractor in some 15 situations won't allow it. 16 Q. Okay. So what was then, your opinion 17 with respect to -- you said Exxon did not have a 18 responsibility to monitor any of the contractors. 19 What is your opinion as to Exxon's responsibility 20 toward the contractors? 21 A. To convey the information if that 22 information is not known or is not available to that 23 contractor, that employer. 24 Q. And by what means should Exxon convey 25 the information with respect to the hazards of Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 126 1 Benzene? 2 A. It could be meetings. It could be by 3 contract. I mean, there's many ways to handle that. 4 Q. Well, what ways did you find that Exxon 5 behaved that made it sufficient? 6 A. Well, they had -- Exxon had safety 7 procedures. I have here a note in 1971 discussing 8 breaking any lines, and there's a possibility of 9 product being present. And there's got to be safety 10 equipment and personally supervise the work. The 11 contractor must comply with safety plant protection 12 regulations. That also included Benzene. 13 There were -- there was an Exxon -- this 14 came later in the 1990s. There were documents that 15 laid out the plant contractors' responsibilities. I 16 guess the earliest version that I have is 1978. Those 17 are some of the documents. 18 Q. So your opinion is that once Exxon 19 informed its contractors about, whether by means of a 20 meeting or by a safety manual that there were Benzene 21 hazards on its premises, that that was the extent of 22 Exxon's duty with respect to warning its contractors 23 or otherwise protecting them against the hazards of 24 Benzene? 25 A. Well, you're applying a very large brush Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 127 1 to everything going on in a very large refinery and 2 chemical plant. There may be very specialized 3 activities that more went on, and we'd have to talk 4 about those specialized activities. So I can't answer 5 that question universally. 6 But if you're talking about a contractor 7 such as the magnitude of Brown and Root who builds 8 refineries, who completely turns refineries around and 9 has for many years, certainly they were astute in 10 Benzene related issues and aware of those issues. Or 11 certainly should have been aware. 12 Q. So it's your opinion then that it's 13 Brown and Root who should have been aware of the 14 hazards of Benzene to its workers at Exxon Baytown 15 premises; is that right? 16 A. Sure. Not only should have been aware, 17 but they had the experience and knowledge base, and 18 the resources to properly understand what the 19 potential hazards were of many things in a refinery, 20 including Benzene, and how to address those problems. 21 Q. And you knew that because of what the 22 attorneys told you in this case? 23 A. No, if you go to Brown and Root's web 24 site, and read about their history and their 25 experience in building refineries, I think that will Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 128 1 create a clear picture for you. 2 Q. So you're basing your knowledge on what 3 the attorneys told you and Brown and Root's web site; 4 is that correct? 5 MR. DILLARD: Object to form. 6 MR. BUTHOD: Form. 7 THE WITNESS: Well, I'm basing it 8 on my own experience and being in several different 9 refineries, and talking about people who work in 10 refineries and the extent of what Brown and Root 11 knows. 12 I'm basing it on what Brown and Root has 13 said in their own -- if you go to their own website. 14 I hate to refer to Internet sites, but they have a 15 pretty good history there that describes their 16 experience in building and constructing and renovating 17 chemical plants and refineries. 18 So to think that they would go in, and 19 they have no knowledge of potential hazards, health 20 hazards and safety hazards in a refinery is wrong. 21 BY MS. CLANCY: 22 Q. The second thing that you testified with 23 respect to Exxon is you said that -- first, you 24 testified that Exxon's procedures with respect to 25 making -- its procedures with respect to its Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 129 1 contractors as to Benzene were, quote, well managed 2 even by today's occupational exposure standards; 3 correct? That's one thing you said? 4 MR. BUTHOD: Form. 5 THE WITNESS: Depending on the 6 time frame and the application, yes. And then, I also 7 said that they managed those exposures to contemporary 8 health standards. 9 BY MS. CLANCY: 10 Q. All right. Well, how about during the 11 1980s, 1980 to 1987, does that time frame fit your 12 statement that Exxon's procedures with respect to 13 managing its contractors were well managed even by 14 today's occupational exposure standards? 15 A. Well, the data that I looked at for 16 Exxon covered the period 1984 through 1990. So I can 17 say through that period of time. That's the data, 18 specific data that I looked at. 19 Q. And according to the data that you 20 looked at, '84 to '90 that Exxon -- you're saying from 21 the period '84 to '90 that Exxon's procedures were 22 well managed -- with respect to its contractors and 23 Benzene were well managed even by today's occupational 24 exposure standards; is that right? 25 A. Based on my review of the data, yes. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 130 1 Q. How about the period of '84 -- prior to 2 1984 at Exxon Baytown? 3 A. Again, I don't have data on that, but if 4 you look at the programs, policies and procedures, 5 they were doing -- they had put into place the actions 6 necessary to properly manage Benzene exposures for 7 their employees. 8 Q. So for the period prior to '84, because 9 you don't have data on that, you're just assuming that 10 the data would be indicative of occupational exposures 11 that are within safe level? 12 A. I don't have -- I am -- "assuming" is 13 not the right word. I'm using certainly professional 14 judgment. I understand in some of the changes that 15 have occurred over time in chemical plants and 16 refineries, and the periods of time and things that 17 have caused there to be a significant change in 18 exposures because of change in health standards 19 because of change in environmental regulations, these 20 things effect the overall exposures that people have. 21 And in the '80s and based on the 22 documents that were available to me from Exxon, they 23 were doing the right things to manage those 24 exposures. I don't have data to show me exactly what 25 they were, but they were doing the right things to Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 131 1 manage those exposures. 2 Q. Okay. Would the data change your 3 opinion one way or the other? 4 MR. BUTHOD: Form. 5 BY MS. CLANCY: 6 Q. If you were to have the data prior to 7 1984? 8 A. Would it change my opinion? I don't 9 know until I see that data. 10 Q. Well, let's say that the data prior to 11 '84 exceeded safe levels of exposure, either the ten 12 parts per million or the one part per million time13 weighted average. Would that change your opinion as 14 to whether or not Exxon was implementing -- well 15 managing its program with respect to Benzene? 16 MR. BUTHOD: Form. 17 THE WITNESS: Well, I'd have to 18 understand. When you say they were over exposed, were 19 they being protected by respiratory protective 20 equipment or some other means? While the numbers may 21 have exceeded the occupational health standards, they 22 took protective measures. 23 And that's what I see in these programs, 24 policies and procedures. If that were the case, those 25 were the measures they took. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 132 1 BY MS. CLANCY: 2 Q. All right. So even if the data shows 3 there were exceedances of say, occupational levels 4 preventing -- if Exxon took proper protective measures 5 such as insuring that respiratory protection was worn 6 was or putting in the proper engineering controls, 7 then they would be well managing the processes to 8 Benzene; is that correct? 9 A. That is part of the process, managing 10 exposures. As an industrial hygienist, I have to 11 consider that certainly there are exposures that 12 exceed health standards. But an effective program 13 means they're also taking measures to control or 14 manage those exposures, and respiratory protective 15 equipment is one of those. 16 Q. So in a situation where exposures are 17 over and above the safe levels of occupational 18 exposure to Benzene, Exxon should at that point 19 provide respiratory protection or insure respiratory 20 protection is being worn or that proper engineering 21 controls are put in place? 22 MR. BUTHOD: Object to the form. 23 THE WITNESS: Sure. That's part 24 of the process. And I also want to add if there is a 25 one time occurrence where you measure some exceedance Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 133 1 of the health standards, that doesn't mean you make 2 changes to the process or institute controls. There 3 may be some unique situation that caused there to be 4 an over exposure. You try to keep that situation from 5 occurring again. 6 BY MS. CLANCY: 7 Q. And that's why it's important to do 8 monitoring is so that you don't have to -- you're not 9 just taking data from one data point. You're able to 10 analyze the full spectrum of it what exposure might be 11 by putting in a comprehensive monitoring program; 12 correct? 13 A. Well, I mean, there's different ways, 14 including statistically to monitor data and such that 15 when you get to a point where you're satisfied the 16 data you have is representative, or in some situations 17 may not need any monitoring data. You know that if 18 there is a spill of pure Benzene, that you need to 19 take protective measures. And there is not 20 necessarily a need to monitor that activity. 21 Q. Well, but in situations where you might 22 know that exposures are a problem, then that would be 23 a situation where you should monitor that activity to 24 follow up and confirm the problem is either fixed or 25 managed going forward? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 134 1 A. Well, if you know there is a problem, 2 yes, you don't need to monitor. You take measures to 3 fix it. And then you might monitor at the end of that 4 what you think the fix is to demonstrate that your 5 measures were, in fact, effective. 6 Q. And the documents that you've reviewed 7 today to opine that Exxon procedures with respect to 8 its contractors and Benzene were well managed are set 9 forth in Deposition Exhibit Number 10; is that 10 correct? 11 A. Well, there are those, and there's also 12 two boxes of materials here. And I don't know what 13 happened. There was the two pages that you took that 14 listed all the documents that were in here. 15 Q. Oh, I see. Did we make those an 16 exhibit? 17 A. I'm not sure what happened to them. I 18 haven't seen them lately. I don't see them in this 19 stack. 20 Q. I'll take one minute and put this in 21 order. 22 Is that the Exxon facility document? 23 A. I'm sorry. Did you staple these 24 together? 25 Q. Yes. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 135 1 A. Okay. 2 Q. So that they wouldn't get lost. I can 3 mark them as a separate exhibit. 4 A. I'll have to look and see which one goes 5 in which box. That's fine. This is it. I thought 6 there were two pages, which there are. 7 Q. So it's documents that you have used to 8 opine that Exxon provided well managed procedures with 9 respect to its contractors in Benzene are Exhibit 10 Number 12, and the documents summarizing Exhibit 11 Number 12, and Exhibit Number 10; is that correct? 12 MR. BUTHOD: Form. 13 THE WITNESS: Yes. 14 BY MS. CLANCY: 15 Q. I want to go back to your conversation 16 with Carolyn Phillips. What you said originally, and 17 correct me if I'm wrong, that she told you that the 18 Shell historical exposure assessment was misused and 19 misapplied by plaintiff's industrial hygiene expert. 20 That he did not understand the purposes of the study 21 and the limitations and use of the information in that 22 estimate. I want to ask you a couple of questions 23 about that. 24 What did she say were the purposes of 25 this study? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 136 1 A. It was an attempt to define -- to 2 determine whether they could define various trades or 3 activities that had higher levels of exposure than 4 other trades or activities for purposes of determining 5 whether or not there were Benzene related diseases 6 associated with kind of the hierarchal exposures. 7 Q. And what else did she say? 8 A. We talked about many things. 9 Q. Okay. 10 That the use of the specific exposure 11 levels by Mr. Petty and his analysis of Mr. Wilkinson 12 and Mr. Stubbs' total dose was wrong. It was 13 inaccurate. 14 Q. Okay. 15 A. It was, you know, he went pretty far 16 afield in his approach and methodology, particularly 17 using that data, using that information. 18 Q. Okay. How did she say that he went 19 wrong and went far afield? 20 A. Because the data was not -- that data 21 was representative, I mean, there are many things. I 22 don't know that I can describe them all sitting here 23 off the top of my head. 24 But, that data in large part was derived 25 not only from odor issues, but from individual Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 137 1 recollection from decades ago. They interviewed 2 people who worked at Shell facilities, refineries from 3 the 1940s, 1950s and 1960s, a very different time. 4 And in her view, a very different set of circumstances 5 that lead ultimately to exposures and perception of 6 those exposures. 7 It was also, the study focused on 8 people, I'm not saying study, but their estimates, 9 their attempted estimates focused on trades or 10 activities where there were known Benzene streams. 11 Generally five percent or greater, unless it was an 12 open type of activity. Then it was one percent was 13 their cut off. We don't even know if Mr. Wilkinson or 14 Mr. Petty worked around any Benzene containing 15 streams. 16 Q. Petty? Mr. Stubbs. 17 A. I'm sorry. We don't know whether 18 Mr. Stubbs -- Mr. Petty. My point was that Mr. Petty 19 applied this data to Mr. Stubbs and Mr. Wilkinson, and 20 we don't know that they were around any Benzene 21 containing streams. 22 Q. Okay. What else? 23 MR. DILLARD: Object to form. 24 What else? What's the question? 25 MR. BUTHOD: Yeah, what's the Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 138 1 question? 2 MS. CLANCY: The question pending 3 was what did Carolyn Phillips say to him. 4 THE WITNESS: I'm trying to think 5 if there were any other highlights. I mean, there 6 were so many things that were, you know, at issue. 7 Again, I think the strength of her point 8 was that the numbers that are presented in the Shell 9 estimate of historical exposures are not accurate, 10 and -11 BY MS. CLANCY: 12 Q. I'm sorry, the numbers presented in the 13 Shell historical exposure assessment are not accurate? 14 A. That's correct. 15 Q. Okay. 16 A. They do not accurately represent what an 17 individual would have been exposed to. They were used 18 -- those numbers were used as a means to categorize 19 individuals in a hierarchal structure from highest to 20 lowest, or lowest to highest exposures. 21 Q. Those were the highlights. What else 22 did she -- you said those were the highlights, but 23 what else did you consider are many things? 24 A. And I'm sure I'm not going to recall 25 things sitting here. In particular, there is on a Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 139 1 table in there, and I believe Mr. Petty used it. It 2 may be Attachment 5. And he used data on PPM days 3 that dealt with pipefitters in which he fabricated 4 very high numbers in terms of per million exposures. 5 And failed to recognize that there was 6 pipefitter data on the very next page that was 7 specifically related not only to the type of activity 8 that the plaintiffs claimed to have been engaged in, 9 but at the same area of the plaintiffs where they 10 claimed to have been on some occasion. But it was 11 much lower data or much lower exposure values. 12 Q. When you say "the very next page," you 13 mean the very next page of the historical exposure 14 assessment data? 15 A. Correct. 16 Q. What else did Carolyn Phillips say? 17 A. Those are the points I can think of 18 right now. 19 Q. Did you take notes from her call? 20 A. I did not. 21 Q. You just listened? 22 A. Yes. 23 Q. What was Carolyn Phillips' role in the 24 historical exposure assessment? 25 A. She was involved in interviewing Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 140 1 personnel. She had hands-on experience working in the 2 refinery and applying her own professional judgment to 3 the information that was put into the report. 4 Q. Do you know what her role is in terms 5 of, you know, heading up the study or working on the 6 study, or anything like that? 7 A. I don't specifically. 8 Q. Are you relying on Carolyn Phillips' 9 opinions with respect to the study in terms of 10 offering your opinions today? 11 A. I am not from that standpoint. I think 12 she corroborated, my understanding and my reading of 13 that document produced by Shell. And that's why I 14 didn't take notes, because everything that she had 15 indicated to me was exactly what I had thought in 16 reading the document. 17 Q. Tell me what you thought in reading -18 well, because one of your opinions today is the 19 methodology used in the Wood River study; is that 20 correct? That Mr. Spencer may also testify about the 21 methodology used in the Wood River study. 22 A. Well, if we're talking about the 23 historical exposure estimates -24 Q. First of all, do you recognize that both 25 Deer Park data and Wood River data were included in Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 141 1 the historical exposure assessment? 2 A. Well, you use the word "data" loosely. 3 There was very little data that was actually in that 4 study. They had a table where they tried to validate 5 some data. But it was very limited in terms of 6 numbers, and the specific trades that were included in 7 that validation data. 8 Q. Let me ask you this then. You recognize 9 though that there were workers from Shell Deer Park 10 and Wood River who were studied in the Shell 11 historical exposure assessment data. Meaning that 12 it's not just the Shell Wood River analysis; correct? 13 MR. DILLARD: Object to form. 14 THE WITNESS: Yes. When you say 15 they were, I'm not sure of the words you just used. 16 But they were interviewed, and these were retirees who 17 went back decades and were asked to recollect certain 18 aspects of their jobs. 19 BY MS. CLANCY: 20 Q. My question is much simpler than what 21 you've been thinking. 22 A. Okay. 23 Q. I'm just asking, what you testified 24 about is, Mr. Spencer may also testify about what the 25 methodology used in the Wood River studies. Let me Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 142 1 show you that. 2 A. Yes. 3 Q. And I'm just saying this also included 4 information -- this isn't just Wood River, correct? I 5 mean, there was also information with respect to 6 workers, be they are retired or not from Shell Deer 7 Park? 8 A. Correct. This is my understanding, yes. 9 Q. Well, have you seen the data or is there 10 any information or summaries of exposures on Shell 11 Deer Park people in the historical exposure assessment 12 data? 13 MR. DILLARD: Object to form. 14 THE WITNESS: Yes. 15 BY MS. CLANCY: 16 Q. Excuse me, the historical data 17 assessment study? 18 A. Yes. 19 Q. So you were saying that your first 20 criticism of it was that very little data included in 21 the study in terms of numbers and trades? 22 MR. DILLARD: Objection. 23 MR. BUTHOD: Criticism of what? 24 THE WITNESS: No. That was just 25 one of many items that makes it difficult. It's Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 143 1 impossible to use the study for the purposes as done 2 by the plaintiff's industrial hygiene expert. That 3 was just a table in there. They were trying to 4 validate some of their findings, or some of their 5 guesstimates I should say. 6 BY MS. CLANCY: 7 Q. So you called the Shell historical 8 exposure assessment a guesstimate? 9 A. Well, it's not -- I think you've 10 misquoted the title. It says "estimate" in the 11 title. 12 Q. Make sure I get it right. 13 A. "Estimate of Historic Benzene Exposure 14 at Two Petroleum Refineries." 15 Q. That doesn't say guesstimate; it says 16 estimate. 17 A. No, I said I think they used the word 18 "estimate." 19 Q. As I just said, you were designated to 20 testify about the methodology used in the Wood River 21 study, which we now know is the Wood River and Deer 22 Park studies. What is your opinion about the 23 methodology used in the studies? 24 A. Well, again, I wouldn't call it a 25 study. They were trying to estimate exposure for Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 144 1 another study they were attempting to do. 2 The overall issue with this, and to 3 answer your question, is that this is not a developed, 4 sanctioned or widely used or known method by 5 industrial hygienists for evaluating exposures. 6 There is a standardized exposure 7 assessment process that is in the book that you 8 brought with you, and that Mr. Petty refers to in his 9 report, but then totally ignores the process that's in 10 the book. 11 Q. First, what is the process in the book 12 that you... 13 A. There's a chapter on exposure 14 assessment. And in that chapter it defines the 15 criteria for properly evaluating an occupational 16 exposure, whether real time or retrospectively. 17 MR. BUTHOD: Could you identify 18 the book by name that you're talking about? 19 MS. CLANCY: Absolutely. 20 MR. BUTHOD: Thank you. 21 MS. CLANCY: Sure. 22 BY MS. CLANCY: 23 Q. The book that you're referring to is A 24 Strategy for Assessing and Managing Occupational 25 Exposures, second edition published by the AIHA Press, Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 145 1 authors John Mulhausen and Joseph Damiano; is that 2 correct? 3 A. Yes. 4 Q. So the chapter that you're referring to, 5 could you point that to me? 6 A. Chapter 3. 7 Q. So what is your point with respect to 8 this chapter? 9 A. Well, this study does not follow that 10 process. Mr. Petty did not follow the process that is 11 described in the standard industrial hygiene text. 12 Instead he did something that was -- he basically 13 developed on his own. 14 And this process is what we use again, 15 in real time or in doing retrospective assessments. 16 And there's information that's necessary in order to 17 properly evaluate an exposure to an individual or a 18 population. 19 Q. So let me make sure I'm understanding. 20 You're saying that the methodology espoused by Chapter 21 3 of A Strategy for Assessing and Managing 22 Occupational Exposures is the methodology that you say 23 should have been followed in performing a historical 24 exposure assessment; is that correct? 25 A. That gives you a broad -- an outline. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 146 1 And then the following chapters, I think 4 and 5 get 2 to even more detail of how exposure assessments are 3 conducted. 4 Q. And it follows then that you would say 5 this book, A Strategy for Assessing and Managing 6 Occupational Exposures, you consider this book 7 authoritative in the field of industrial hygiene? 8 A. I don't like to use that word. Because 9 I can't say that every word and every sentence in 10 there is absolute. But generally, the process that is 11 defined in there for doing exposure assessment is 12 something that I agree with, and as far as I know most 13 other industrial hygienists agree with. 14 Q. So the processes as set forth in A 15 Strategy for Assessing and Managing Occupational 16 Exposures by AIHA Press, those processes are processes 17 that you and other industrial hygienists agree are 18 those that should be applied in performing an exposure 19 assessment analysis; is that correct? 20 MR. DILLARD: Asked and answered. 21 THE WITNESS: Yes. 22 BY MS. CLANCY: 23 Q. Okay. What other comments do you have 24 on the methodology used? I'm just reading from your 25 designation called the study. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 147 1 MR. BUTLER: Objection. 2 THE WITNESS: I'm sorry. On the 3 Shell estimate? 4 BY MS. CLANCY: 5 Q. The Shell historical -6 A. Estimate of historic Benzene exposures? 7 Q. Yes. 8 A. And you mean relative to how it was used 9 by the plaintiff's industrial hygiene expert to assess 10 Mr. Wilkinson's and Mr. Stubbs' exposures? 11 Q. Well, as I understand it, you have two 12 opinions, right? One is with respect to the study 13 itself and how it was done; is that right? 14 MR. DILLARD: Object to form. 15 MR. BUTHOD: Object to form. 16 THE WITNESS: I wouldn't say that 17 so much. I'm not criticizing the study in terms of 18 how it was done. My issue is with how it was utilized 19 by the plaintiff's industrial hygienist to quantify 20 the dose to Benzene for Mr. Wilkinson and Mr. Stubbs. 21 BY MS. CLANCY: 22 Q. So when it says here -- let me show it 23 to you. When it says here, "Mr. Spencer may also 24 testify about the methodology used in the Wood River 25 study." Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 148 1 A. As it relates to how -- its use by the 2 plaintiff's industrial hygiene expert. That should 3 have been inserted in there. 4 MS. CLANCY: Okay. All right. So 5 let me mark this. It's defendant Exxon Mobil 6 Corporation and American Chemistry Council's First 7 Amended Rule 194.2(d) through (f) disclosures. And 8 I'll mark is as Exhibit 15. 9 (DOCUMENT MARKED PLAINTIFF, SPENCER 10 DEPOSITION, EXH. NO. 15, FOR IDENTIFICATION.) 11 BY MS. CLANCY: 12 Q. So what other -- now if we insert what 13 you also testified about the methodology used in the 14 Wood River and Deer Park studies with respect to its 15 use by plaintiff's experts, what other comments do you 16 have? 17 MR. DILLARD: Object to the form. 18 THE WITNESS: I believe I've 19 covered them broadly. I mean, there are other -- I'm 20 sure there's other details that I have not brought 21 forth, but I'm trying to think of those. And I've 22 covered what I can recall at the time. There's a lot. 23 BY MS. CLANCY: 24 Q. Well, I have three -- maybe what you 25 were saying then -- were you saying that -- because Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 149 1 you talked about everything Carolyn Phillips told you 2 and you said that that corroborated your opinion. 3 A. Right. 4 Q. So when you listed -- because you listed 5 a lot when you talked about your discussion with her. 6 So that is therefore also encompassing your opinion? 7 A. Yes. That also relates -- and again, it 8 relates to how it was used by the plaintiff's 9 industrial hygiene expert to evaluate the dose or the 10 exposures of Mr. Wilkinson and Mr. Stubbs. 11 Q. Do you have any criticisms of the Shell 12 historical exposure assessment other than it was being 13 used by plaintiff's attorney to estimate exposure for 14 Mr. Wilkinson and Mr. Stubbs? 15 A. I guess, if you're asking me if I have 16 criticism of the study itself. 17 Q. Yes. 18 A. I think they did not adequately validate 19 objective data with their estimates properly or 20 completely. I believe that was a limitation. 21 Q. Are there any other limitations that you 22 have as an industrial hygienist expert would find with 23 the Shell historical exposure assessment? 24 A. Well, I guess generally -- it's just not 25 a method that I've ever seen used anywhere else, at Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 150 1 any other time. So it was an interesting attempt for 2 its time, but I have never seen it used before or 3 since. 4 Q. And what about the method do you find 5 unique for, I guess -6 A. The entire process. In interviewing 7 people whose experiences were decades in the past and 8 asking them to recall specific daily routines and 9 daily incidences and daily odors, and to tease out 10 Benzene exposure from mixed hydrocarbon in a 11 refinery. 12 I mean, I think they took on an enormous 13 challenge. But because of the technical limitations, 14 it's not reliable from the standpoint in numbers that 15 are presented. Perhaps in the hierarchy of exposures 16 and what occupations, we're likely to see higher 17 levels of exposure. But not in the numbers 18 themselves. 19 Q. You left me on the last point. What did 20 you mean by that? 21 A. That the intent of the study, and I 22 think where it perhaps worked, was to look at 23 particular occupations that likely had the more 24 consistent elevated types of Benzene exposure. So it 25 created a hierarchy. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 151 1 But in terms of the actual numbers as 2 true objective data, that's where it falls down. 3 Q. Do you disagree with their use of odor 4 as one of the means of measuring the exposure 5 assessment? 6 MR. MAHER: Object to form. 7 THE WITNESS: Well, obviously it 8 didn't work very well. Yes, I do agree there are 9 enormous problems with the use of odor as a means of 10 estimating exposure. 11 BY MS. CLANCY: 12 Q. Okay. And how about Shell's use of 13 sensory perception as a means of estimating exposure? 14 A. I think the severe problems were, and I 15 think Shell recognized it, is that in most situations 16 you're talking about a mixed hydrocarbon environment. 17 And many of these hydrocarbons have the same sort of 18 sensory impacts, eye irritation, upper respiratory 19 tract irritation. So to attribute that to Benzene I 20 think fundamentally flawed what they were doing. 21 Q. Do you have an opinion that one cannot 22 identify Benzene by its smell? 23 A. I'm sorry, do I agree? 24 Q. Is that your opinion that one cannot 25 identify Benzene by its smell? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 152 1 A. No, that's not my opinion. 2 Q. Is it your opinion that one can identify 3 Benzene by its smell? 4 A. Under very specific circumstances, and 5 someone who is trained to do so, yes, I believe that's 6 the case. 7 Q. Do you believe someone can identify 8 Benzene from a smell as distinguished from, for 9 example, Toluene or Xylene? 10 A. Unless they're specifically trained to 11 do so, no, I do not. 12 Q. But if trained to do so, you believe an 13 individual can distinguish as between the smells of 14 Xylene, Toluene and Benzene? 15 A. It is possible, and I'll leave it at 16 that. 17 Q. In your opinion do Toluene, Xylene and 18 Benzene have different smells? 19 A. Smell is in the nose of the beholder. 20 So there are subjective descriptions of the odors of 21 these products. And in some places you can find that 22 they're similar, and in some places you find they're 23 different. 24 Q. So given that you just said in some 25 places you find Toluene and Xylene and Benzene smell Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 153 1 sometimes the same, and sometimes they smell 2 different, it's it your opinion then that you really 3 can't distinguish as between them based on odor? 4 A. I'm sorry. Again, unless you're 5 specifically trained, I do not believe, in my 6 experience and from what I've seen and read, you 7 cannot do it. It's not reliable. 8 Q. It's not reliable? 9 A. Correct. 10 Q. What would you say is the safe level of 11 exposure in a parts per million year basis to Benzene 12 without respiratory protection in the 1980s, what 13 should have been the safe level of exposure? 14 MR. BUTHOD: Object. 15 THE WITNESS: Well, I'm not the 16 medical expert. But as an industrial hygienist, I 17 rely on occupational health standards. So you look in 18 the 1980s, probably '87? 19 BY MS. CLANCY: 20 Q. Uh-huh. 21 A. In ten parts per million, 45 years, 22 that's 450 parts per million years. 23 Q. So in the 1980s, as long as the 24 companies were keeping their exposures under 450 parts 25 per million years in aggregate and that would have Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 154 1 been providing safe levels of exposure; is that 2 correct? 3 A. That was the basis for the health 4 standard at the time. 5 Q. And now obviously it has changed? 6 A. It's 45 now. 7 Q. 45 parts per million years? 8 A. Correct. 9 Q. So you're opinion is that as long as the 10 company is adhering to the current regulatory health 11 standards -- Federal regulatory health standards at 12 the time that they're acting in a safe manner with 13 respect to Benzene? 14 MR. BUTHOD: Form. 15 THE WITNESS: Yes. They were 16 acting on the best information they had available at 17 the time. It was a consensus of information. And 18 simply because they were using or that there was a 19 health standard at the time of ten parts per million 20 doesn't mean that they were wed to that or using only 21 that number. 22 That there were, in fact, controls 23 instituted to manage ten parts per million may have 24 been effective in reducing the levels down below to 25 one part per million. So you need to look at that on Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 155 1 a case-by-case basis. 2 BY MS. CLANCY: 3 Q. Well, do you think they should have had 4 effected controls to reduce exposures below ten parts 5 per million prior to 1987? 6 A. There was research and debate going on 7 at that time. OSHA didn't change it at that time. I 8 can't -- I'm not in a position to second guess 9 everything that was going on in that period of time. 10 In hindsight, should they have done so? 11 Perhaps. I think a lot of companies -- in 1977, when 12 the emergency temporary standard came out, we're 13 already managing down to below one because of the 14 information that came out. And they thought the 15 regulation was just going to go there anyway, and they 16 thought it was the right thing to do. 17 Q. And did you agree with companies who -18 did you think that -- I mean, looking back, do you 19 actually agree with what they did in 1977 lowering it 20 to one part per million, those companies that did? 21 A. Sure. With that hindsight, sure. 22 Q. It was the right thing to do make the 23 environment safer for workers; correct? 24 MR. MAHER: Form 25 MR. BUTHOD: Form. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 156 1 THE WITNESS: I guess, you know, I 2 can't say whether it actually made it safer. Again, 3 I'm not the medical person, but I certainly don't 4 disagree that they were doing something positive in 5 meeting a lower occupational exposure limit. 6 BY MS. CLANCY: 7 Q. What other criticisms do you have of 8 Mr. Petty's historical -- use of the Shell historical 9 exposure assessment? 10 MR. DILLARD: Form. 11 THE WITNESS: Again, I believe 12 I've covered most of the main points to the best I can 13 recall right now. I mean, starting out so broadly to 14 use this attempt that is so unique and so different -15 not just that it's different, but it's never been 16 done. And the data he's using so unreliable. 17 And on top of it all, when you look at 18 Mr. Petty's knowledge of Mr. Wilkinson's and 19 Mr. Stubbs' workplace environment, their workplace 20 tasks and activities, the frequency and duration of 21 those activities, whether or not they were exposed to 22 a Benzene containing product, he doesn't know any of 23 those things. And yet, arbitrarily assigns data from 24 a study -- I shouldn't say data, but estimates from an 25 analysis that was never designed to be used in that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 157 1 fashion. 2 BY MS. CLANCY: 3 Q. Is there anything else? 4 MR. DILLARD: Form. 5 MR. BUTHOD: Form. 6 THE WITNESS: I am certain there 7 is, I just can't think of any specifics to give you 8 right now. 9 BY MS. CLANCY: 10 Q. Was it your understanding that Carolyn 11 Phillips was going to appear at trial to testify? 12 A. Yes. 13 Q. Okay. The four things that you told me 14 that you were going to provide opinions about today 15 are, one, the exposures, the analysis that you derived 16 from the Exxon data; correct? 17 A. Correct. 18 Q. Two, we've talked -- one thing we've 19 covered extensively, policies and procedures the 20 defendants had vis-a-vis their contractors and Benzene 21 safety; correct? 22 A. Yes. 23 Q. Three, the plaintiff's expert process in 24 deriving his exposure assessment; correct? 25 A. Yes. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 158 1 Q. And four, the duty of an employer to 2 provide a safe work environment for employees 3 vis-a-vis Benzene; is that correct? 4 A. Yes. 5 Q. Are those the four areas of your opinion 6 in this case? 7 A. To the best of my knowledge, yes. 8 Q. What do you consider yourself an expert 9 in? 10 A. Industrial hygiene. 11 Q. You're not an epidemiologist? 12 A. Correct. 13 Q. You're not a toxicologist? 14 A. Correct. Those are areas that are part 15 of my training and background, but I don't consider 16 myself an expert in those areas. They're part of what 17 I do. 18 Q. But you're not providing expert opinion 19 in this case as a toxicologist or as an 20 epidemiologist; correct? 21 A. Correct. 22 Q. And you're not going to provide 23 causation opinion, meaning -24 A. I'm sorry, correct. 25 Q. -- any causation with respect to the Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 159 1 diseases at issue in this case, and what would be 2 sufficient exposure levels to cause the diseases at 3 issue in this case; is that correct? 4 MR. BUTHOD: Form. 5 THE WITNESS: That is correct. I 6 mean as an industrial hygienist, I typically make 7 myself aware of what the potential adverse health 8 effects are from a particular contaminant. I'm not 9 aware that Benzene causes the diseases that are at 10 issue here, but I am not an expert in causation. 11 BY MS. CLANCY: 12 Q. So you're not testifying as an expert in 13 causation in this case; correct? 14 A. Correct. 15 Q. What are you -- I know we've talked 16 about your conversation with Carolyn Phillips, and 17 your own opinions with respect to the use of the Shell 18 historical exposure study to derive exposure 19 assessment numbers for Mr. Stubbs and Mr. Wilkinson. 20 In category three of your opinions, what other 21 criticisms do you have of Mr. Petty's processes? 22 MR. MAHER: Object to form. 23 MR. DILLARD: Form. 24 BY MS. CLANCY: 25 Q. Number three being plaintiff's expert Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 160 1 processes. 2 A. Well, I think we've covered that to the 3 best of my ability at this point. I know there are 4 other things, but factually, I've given you what I can 5 draw upon right now. 6 Q. Is there any document that would help 7 you refresh your memory and see what other opinions 8 you would have -9 A. No. 10 Q. -- as to or criticisms of Mr. Petty's 11 processes? 12 A. No, I have not created any specific 13 document. 14 Q. What other experts did you talk to in 15 this case besides Carolyn Phillips? 16 MR. DILLARD: Object to form. 17 THE WITNESS: None. 18 BY MS. CLANCY 19 Q. Did you talk to Mr. Paustenbach? 20 A. I did not. 21 Q. Did you analyze any of Mr. Wilkinson's 22 or Mr. Stubbs' exposures to anything other than 23 Benzene? 24 A. I mean, no, I couldn't really do any 25 analysis of their specific exposure to Benzene. There Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 161 1 just was not sufficient information, testimony. There 2 is no testimony at all from Mr. Stubbs as to what he 3 did. And Mr. Wilkinson's testimony and co-worker 4 testimony just were so unclear, I couldn't derive 5 anything from it. 6 Q. And thank you for clarifying that. My 7 question was something else, but you reminded me of 8 something I didn't clarify. So you did no estimate of 9 specifically Mr. Wilkinson's or Mr. Stubbs' exposure 10 to Benzene; correct? 11 MR. MAHER: Object to form. 12 THE WITNESS: That's right. I 13 think that's what we talked about at the very 14 beginning of the depo. I did not. The data that I 15 looked at looked at those activities and trades that 16 they have some indication through testimony that they 17 were involved in or conducting. 18 BY MS. CLANCY 19 Q. Did you do any classification or 20 analysis of any pesticide exposure? 21 A. No. 22 Q. Did you do any quantification or 23 analysis of any other toxic substance to which 24 Mr. Wilkinson or Mr. Stubbs may have been exposed? 25 A. You mean like drugs or... Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 162 1 Q. Well, did you do any analysis of those? 2 A. No, I did not do any other analysis or 3 assessment for any other constituent. 4 Q. Do you plan to offer any opinion with 5 respect to any other constituent to which -- any other 6 toxic constituent that Mr. Wilkinson or Mr. Stubbs may 7 have been exposed to? 8 MR. BUTHOD: Form. 9 THE WITNESS: No, I did not do any 10 other assessment of any other chemical agent. 11 BY MS. CLANCY: 12 Q. This book that you -13 A. It's under here. 14 Q. Thank you. One of the things that you 15 list in your book are most cited safety and health 16 regulations in the year 1988. 17 A. And I'll bet has comments at the top. 18 Q. Hosting of OSHA poster is at the top. 19 But written has some program is Number 2. 20 A. Okay. 21 Q. Can you tell me what this is, in this 22 book you wrote, "the most often violated OSHA 23 standard"? 24 A. I believe this is derived generally 25 every year from like Bureau of Labor Statistics post. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 163 1 It looks at all of OSHA's violations by a standard 2 number. It simply tallies them up and puts them in 3 order of the most first and the least last. 4 Q. So then if we go from most first to 5 least last, the second most violated issue with 6 respect to OSHA regulations is having a written 7 program hazcom program; is that correct? 8 A. Yes. 9 Q. And then the fourth most violated as of 10 1988 is having hazcom training program; is that 11 correct? 12 A. Correct. 13 Q. So then the hazcom labeled identity 14 would be all the way down at 14, Number 14 on the list 15 of most violated; is that correct? Is that right? 16 A. I didn't count them. I'll trust your 17 counting technique. 18 Q. Okay, trust me on this. 19 Is this a nation -- what is this a 20 survey of? I mean, every company that reports to 21 OSHA? 22 A. Well, any company in the United States 23 that falls under OSHA jurisdiction. 24 Q. And it was the auditing that was being 25 done at that time to ascertain compliance with OSHA, Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 164 1 that's how this list was compiled? 2 A. Yes. 3 Q. And who did the auditing? 4 A. Well, this is from OSHA. It's just you 5 go to a database and it has all their violations in 6 there, and they just tally them up. 7 Q. So it's when OSHA inspectors go out, 8 reported and then tallied on their database; is that 9 right? 10 A. Yes. 11 Q. How many times has a court determined 12 that either some or part of your opinion you would not 13 be able to offer at trial? 14 A. One time, and that was part of my 15 opinion. 16 Q. And which case was that? 17 A. Lavender versus Miles. 18 Q. Is there any other incident where a 19 court has said that some or part of your opinion you 20 would not be able to offer at trial? 21 A. No. 22 Q. Is there any other incident where for 23 whatever reason the court has -- let me back up. 24 At the appellate level after you've 25 already testified at trial, is there any court that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 165 1 has ever said that your testimony was not relevant or 2 reliable or meeting -3 A. There was a judge in Louisiana who was 4 investigated right after that trial, and left the 5 bench, that used the plaintiff's document as his own 6 findings. 7 So I don't know who really -- whether it 8 was the judge or the plaintiff's attorney at the time 9 that wrote that. I don't know the outcome of that. 10 He was being investigated following that trial. 11 Q. I'm sorry. So what happened? 12 A. There was a case, Maritime case where 13 actually the judge left the courtroom during my direct 14 testimony, and did not hear me testify on some data. 15 And then following the trial said my data -- that my 16 -- what I produced or what I said wasn't relevant or 17 reliable. Of course, he wasn't there to hear it. 18 Q. So what is the name of that case? 19 MR. BUTHOD: Responsiveness. 20 THE WITNESS: I believe it was 21 Warren. 22 BY MS. CLANCY: 23 Q. So after the trial the judge, struck 24 your opinion from the... 25 A. No, it was never struck. He just said Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 166 1 that he didn't like it. Of course, he wasn't there to 2 hear it. 3 Q. What was the legal import of that? 4 A. He said I didn't do anything to -- I 5 can't remember the exact words, to refute or rebut the 6 testimony of the plaintiff's industrial hygiene 7 expert. That's when he left the courtroom. 8 It was a bench trial. There was no 9 jury. And he -- it was the oddest thing I've ever 10 seen. He got up and left the courtroom during my 11 direct testimony. 12 Q. At the end of the trial, did he issue a 13 written opinion? 14 A. Yes, as I understand it, it was the 15 opinion written by the plaintiff's attorney. In fact, 16 it had the same misspellings in the document as when 17 the plaintiff's attorneys had produced it as when the 18 judge produced it at the end of the trial. So I don't 19 know how reliable those comments are. 20 Q. But the judge did issue a written 21 opinion with respect to your testimony not being 22 sufficient in that case? 23 MR. BUTHOD: Object to the form. 24 THE WITNESS: No. It was written 25 opinion about the whole case. He just said he didn't Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 167 1 like my testimony. But again, he wasn't there for 2 it. It was really very odd. 3 MS. CLANCY: Object to 4 non-responsive question. 5 BY MS. CLANCY: 6 Q. Is it your opinion that you always need 7 monitoring data in order to provide an accurate 8 historical exposure assessment? 9 A. No. 10 Q. How should it be done without monitoring 11 data? 12 A. Well, there is generally a hierarchal 13 approach to doing that. One, monitoring data is 14 best. Two, surrogate data, whether it's from other 15 activities with a similar or same product, or a 16 similar product where you can draw some associations. 17 If you don't have either of those, the 18 next is you may go to a modeling of data. There are 19 acceptable models used in industrial hygiene to 20 evaluate individual exposures and exposures to 21 bystanders. 22 Q. So the hierarchy of performing an 23 historical exposure assessment is in your opinion 24 first you use actual monitoring data that was 25 performed on the individual; is that right? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 168 1 A. Yes. 2 Q. The second step is if you don't have 3 that actual monitoring data, then you look at 4 surrogate data from other workers similarly situated? 5 A. Correct. 6 Q. And then if you don't have surrogate 7 data from other workers similarly situated, then you 8 use modeling data; is that right? 9 A. Yes. Now, there was a step in between 10 where you may use data from -- industrial hygiene data 11 from say, if you're looking at Benzene, you may use 12 data on total hydrocarbon exposure. And look at the 13 percent of Benzene in that total hydrocarbon, and make 14 some associations from that. 15 MS. CLANCY: We have to change 16 tapes, so I'm going to follow up on that question as 17 soon as we get back. 18 VIDEOGRAPHER: This marks the end 19 of tape Number 3 off in the video deposition of John 20 Spencer. The time on the screen is 14:56:34. We're 21 going off the record. 22 (WHEREUPON A RECESS WAS TAKEN.) 23 VIDEOGRAPHER: This marks the 24 beginning of tape Number 4 in the video deposition of 25 John Spencer. The time on the screen is 15:09:11. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 169 1 We're back on the record. 2 BY MS. CLANCY: 3 Q. Mr. Spencer, we're back from break, and 4 I saw that you took out Mr. Petty's opinion -- outline 5 of opinions on Mr. Wilkinson. Did you intend to offer 6 further opinions about that? 7 A. Well, yes. I mean, I had pulled this 8 out and just looking at it trying to refresh myself 9 with other issues you had asked me about before that I 10 had with Mr. Petty's work. And I mean, there are 11 other issues. 12 I think one of the more significant ones 13 that I probably forgot about earlier was his misuse of 14 contributory dermal dose. He, I think, misunderstood 15 some literature, in particular some work done by Allen 16 Susten on dermal absorption of Benzene. And he has 17 severely misapplied it to the plaintiffs in this case 18 as a contributing factor to their exposure. 19 He also -- the other issue that I 20 thought was of significance was that he took data from 21 a refinery -- well, okay, using the estimate of 22 historical Benzene exposure from two Shell refineries, 23 and applied it to these men working at chemical plants 24 as well, and chemical plants from companies different 25 than that of Shell. I thought that was rather Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 170 1 significant. 2 He also had -- there is one other thing 3 since you asked that I thought was significant, in the 4 use of Liquid Wrench. And had, I believe, was 5 Mr. Wilkinson covered, at least 27 percent of his body 6 covered in a solvent day in and day out. 7 And this particular product is something 8 that is used to loosen bolts, and is applied to a very 9 specific area. But somehow he had it on his face and 10 his arms, and his legs and his torso such that his 11 clothing was soaked in this stuff daily. 12 And I think the other -- and this may be 13 -- points keep popping into my head, but the other one 14 is the use of -- Mr. Petty, when he did these 15 assessments, failed to consider respiratory 16 protection. Just, I believe even in his testimony 17 indicated he just ignored it. 18 And he ignored the data, the air 19 monitoring data that was available from these 20 facilities, because he believed it was too low. 21 I mean, we have testimony from 22 Mr. Wilkinson who says that he used air supplied 23 respirators at both the Exxon and the Shell facility. 24 Yet, Mr. Petty would not consider that testimony and 25 that information from the plaintiff himself. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 171 1 Q. What else? 2 MR. DILLARD: Object to the form. 3 THE WITNESS: I think he also in 4 my view, Mr. Petty misleads one, or attempts to 5 mislead one in his report with some testimony from 6 various workers, saying that they were discouraged 7 from voicing concerns to the defendant companies. 8 If you read the testimony, what they're 9 being told is by their employer the contractor, J.E. 10 Merrit or Brown and Root, if there is a problem, if 11 there is a spill, there is release, you come to us. 12 We are responsible for managing that. Mr. Petty, I 13 think, misleads as if that is some sort of motivation 14 to quiet them, you know, in the event that there is 15 some issue. 16 But what it is, it's a presentation of 17 recognition by their employer by the contractor that 18 they are responsible for managing their employees' 19 health and safety. 20 And if there were warnings, placards, 21 signs that were present in those work areas, that 22 those workers were to adhere to those warnings, and 23 recognize those as Benzene regulated areas. And not 24 go in there unless they were authorized to do so, and 25 utilizing appropriate protective equipment if it were Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 172 1 necessary. 2 BY MS. CLANCY: 3 Q. I'm sorry. You lost me. I was with you 4 till the very last point. How was that a criticism of 5 Mr. Petty's opinion? 6 A. Well, just, I got onto the issues of 7 controls again, going from respirators when you and I 8 were talking about controls. And I wanted to make 9 sure I was clear on that, that I do not view warnings 10 as a means of controlling -- directly controlling 11 exposure. 12 But it's part of a program that I think 13 was recognized in some of this testimony that again, 14 that Mr. Petty was misleading with. You know, there 15 were signs up for Benzene. There were warnings in 16 some areas. Or they didn't see a sign, there wasn't a 17 sign for Benzene. That doesn't mean there was a 18 Benzene exposure and they weren't doing what they were 19 supposed to. It means that there was likely not a 20 Benzene hazard in that particular area in which they 21 were working. 22 Q. So the lack of signs you take as not an 23 indication that either Exxon or Shell or Union Carbide 24 were failing to warn, but more you're interpreting 25 that as there was no Benzene in that area; is that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 173 1 correct? 2 A. Correct. It wasn't a Benzene regulated 3 area. And that Shell and Exxon, again, I don't 4 believe that warnings were used as a means of 5 controlling exposure. It does provide information to 6 someone that they may need to take other measures to 7 control that exposure. 8 There's another -- I'm jumping around 9 here, but every time I look at this report I see 10 something else. The Benzene -- exposure is a function 11 of the amount of Benzene that's present in a product, 12 and then how much of that product gets into the air, 13 and how long and how frequently one is exposed. 14 Mr. Petty has a table here of various 15 units and the volume percentage of Benzene in those 16 processed streams, yet he was unable to associate 17 Mr. Wilkinson or Mr. Stubbs' activities within these 18 areas. 19 For example, at Union Carbide he makes a 20 mistake. He indicates that Mr. Wilkinson was next to 21 a coker unit, and that coker unit would have presented 22 him with a source of Benzene exposure. 23 Well, number one, he doesn't know how -24 what the Benzene product was that would have come from 25 that coker unit. But two, and most importantly, there Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 174 1 was no coker unit at the Union Carbide facility. 2 Q. And how do you know that? 3 A. When I did my tour of the facility, and 4 then further discussions with Mr. Marr about that, 5 because I was a little perplexed when I saw that 6 testimony. 7 Q. And you did your tour of the facility in 8 the year 2006, January of 2006? 9 A. Yes. 10 Q. And so my question is, do you know when 11 Mr. Wilkinson was at the Union Carbide facility? 12 A. Let me see. I think I can tell you. I 13 mean, if it's accurately known at all, I think there 14 was -- let me look. 15 Yes, okay. That's why I wanted to look 16 at this. There is actually some confusion here as to 17 whether he was there at all. One, because he defines 18 the coker unit. And two, because of the employer that 19 he says he was working with. That is Brazos or 20 Mundy. 21 The records that I looked at I believe 22 was Mundy's records for Mr. Wilkinson. And Mundy was 23 not doing work at Union Carbide in the time frame that 24 he claimed to have been there. 25 Q. Is it your understanding that it was Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 175 1 early 1980? 2 A. The mid 1980s, according to Mr. Petty, 3 and then Mr. Wilkinson's testimony. 4 Q. What historical documents or whom did 5 you speak to know historically that there never was a 6 coker unit at the Union Carbide facility? And I 7 recognize that you didn't see one in January of 2006. 8 So what documents did you look at to know that it 9 wasn't there in the 1980s? 10 MR. MAHER: Object to form. 11 THE WITNESS: Well, the coker unit 12 is associated with crude. There was no crude in that 13 facility in the types of products that plant was 14 making or did make. So it wouldn't make sense that 15 there would be one there. 16 BY MS. CLANCY: 17 Q. How did you learn that historically 18 there was never a coker unit at that facility? 19 A. I was looking for -- on the day I did 20 the site visit -- well, no. In fact, again, when I 21 looked that up, I talked to Mr. Marr about that. 22 Q. So the attorney for Union Carbide told 23 you that there was never a coker unit at that Union 24 Carbide facility. Is that how you learned that? 25 MR. MAHER: Object to form. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 176 1 THE WITNESS: That's part of the 2 answer, but the real part of the answer is their 3 feedstock is ethane and propane, not crude. 4 BY MS. CLANCY: 5 Q. Their feedstock right now? 6 MR. MAHER: Object to form. 7 THE WITNESS: And to my knowledge 8 and my understanding when I was at the facility, 9 that's what they made in particular in that time 10 frame. 11 BY MS. CLANCY: 12 Q. In particular in that time frame in the 13 1980s they made that? 14 A. Correct. 15 Q. And you learned about the fact that they 16 made that in the 1980s from Mr. Marr; is that right? 17 MR. MAHER: Object to form. 18 THE WITNESS: No. 19 BY MS. CLANCY: 20 Q. Who told you that? 21 A. That was Dave Hake. 22 Q. How do you spell his last name? 23 A. H-a-k-e. 24 Q. And what did Mr. Hake tell you? 25 A. That ethane and propane were the Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 177 1 feedstock. 2 Q. What else did you talk about with 3 Mr. Hake? 4 A. We talked about the products that they 5 made there. I mean, that was the primary thing. We 6 talked about other parts of the process. 7 Q. Is that note from your conversation with 8 Mr. Hake? 9 A. It includes -- yes, and during the site 10 visit. 11 Q. May I see that? 12 A. Sure. 13 Q. Did Mr. Hake say there was an Olefin 14 unit at the Union Carbide facility? 15 MR. MAHER: Object to form. 16 THE WITNESS: That there had been 17 one. I believe he gave me some dates when the Olefin 18 units -- Olefins 2 had shut down, yes, and when 19 Olefins 3 started up. 20 BY MS. CLANCY: 21 Q. Did he tell you when Olefin 2 started 22 up? 23 MR. MAHER: Object to form. 24 THE WITNESS: Is it on there? 25 Going back and forth. I don't know if he told me when Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 178 1 it started up. I don't recall that in particular. 2 BY MS. CLANCY: 3 Q. Did he ever tell you if the Olefin unit 4 was present at the Union Carbide facility in the 5 1980s? 6 A. Well, the Olefin 3 started up in 1969. 7 Q. And was Olefin 3 still there when you 8 went for your site visit in March of 2006? 9 A. Well, Olefin 3 had shut down. 10 Q. When was that? 11 A. I believe in 2003. I believe that's the 12 right date. 13 Q. May I look at that? 14 A. Uh-huh. 15 Q. The feedstock for -- right here you 16 write the words Dripoline Pyrolysis, 50 percent 17 Benzene? 18 A. Yes. 19 Q. Can you tell me what that means in that 20 context? 21 A. As part of the production of ethylene 22 and propylene, there are byproducts. And one of 23 those -- two of those byproducts were Dripoline A and 24 Dripoline C. And each of them at one point contained 25 some percentage of Benzene. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 179 1 Q. Okay. And here it says approximately 50 2 percent Benzene? 3 A. That was in the Pyrolysis product. The 4 Dripoline itself, I don't remember the exact 5 percentages. One had a higher percentage than the 6 other. Dripoline A higher -7 Q. This appears to say five percent 8 Benzene. Is that -9 A. Well, it was less than five percent for 10 the Dripoline A. I think it was the Dripoline C that 11 had the higher Benzene content. 12 Q. Just to put this in context for me and 13 for the jury, you write down here feedstock and then a 14 number of bullet points. 15 A. Right. 16 Q. Could you explain what this means? 17 A. What the feedstock was and what the 18 products were? 19 Q. Well, what units the feedstock went into 20 and the products? 21 A. I can't explain this. Look, I started 22 all this by telling you there was no coker unit there. 23 Q. Okay. 24 A. I didn't do -- so there were parts of 25 that testimony that was never considered by Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 180 1 Mr. Petty. He never did that evaluation. They don't 2 have crude oil in the facility, so you don't have a 3 coker unit. He just failed to consider that. 4 I didn't do an analysis beyond the fact 5 that they -- what the feedstock was and what the 6 product and the byproducts were coming from that 7 facility. So I can't lay out the operation for you. 8 Q. So the analysis that you did do is the 9 feedstock were -- the byproducts you're saying are the 10 Pyrolysis and the Dripoline; is that right? 11 MR. MAHER: Object to form. 12 THE WITNESS: Well, Dripoline is 13 that product. 14 BY MS. CLANCY: 15 Q. Is the product? 16 A. Actually it's a byproduct they sold as a 17 product. 18 Q. And Pyrolysis, is that similarly a 19 byproduct that Union Carbide sold as a product? 20 A. No, that's just a term that is a result 21 of part of the process. 22 Q. So what is the -- where you wrote 50 23 percent Benzene, is it the Dripoline here that has 50 24 percent Benzene? 25 A. Yes. Approximately, yes. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 181 1 Q. You also wrote down Ken Lyons safety 2 manual discussion going back to 1970? 3 A. Yes. 4 Q. Did you also talk to someone named Ken 5 Lyons at Union Carbide? 6 A. I can't remember if it was on that day 7 that I spoke with Ken Lyons, or if it was in a 8 deposition testimony. I think I brought with me, I 9 believe, Mr. Lyons' testimony in that regard where 10 there was a discussion of the safety manual going back 11 to the 1970s. 12 Q. And that was from another case? 13 A. Yes. 14 Q. Do you have that? Would that be in your 15 folder marked deposition? 16 A. It would be in -- no, it's in the -17 let's see, Union Carbide file, which is here. 18 Q. So this was taken in the Scott case? 19 A. Correct. 20 Q. And your site visit was generally done 21 for purposes of the Scott case? 22 A. Correct. 23 Q. And you're relying on Mr. Lyons' opinion 24 provided in the Scott case for purposes of your 25 opinion you're providing today in this case? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 182 1 MR. MAHER: Object to form. 2 THE WITNESS: In part, yes. 3 BY MS. CLANCY: 4 Q. What part are you relying on? 5 MR. MAHER: Object to form. 6 THE WITNESS: Well, his discussion 7 of the safety manual and how far back it went. I had 8 earlier or later versions of the manual, and I was 9 curious as to how far back it went. And that's what 10 his testimony represents. 11 MS. CLANCY: May I see that 12 folder? So this is the Union Carbide document. I'm 13 going to mark this folder then and put the deposition 14 back in it, as Exhibit 16. Thank you. 15 (DOCUMENT MARKED PLAINTIFF, SPENCER 16 DEPOSITION, EXH. NO. 16, FOR IDENTIFICATION.) 17 BY MS. CLANCY: 18 Q. Are there any other depositions from 19 outside of this case that you have brought with you 20 today? 21 MR. MAHER: Form. 22 MR. BUTHOD: You mean other than 23 what he's already identified for you? 24 MS. CLANCY: Ken Lyons, other than 25 Ken Lyons. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 183 1 MR. BUTHOD: Form. 2 THE WITNESS: Well, the only other 3 deposition, I may have said this before, was that of 4 Mr. Wilkinson in the case in 2003. 5 BY MS. CLANCY: 6 Q. And other than those two? 7 A. I cannot think of any others. 8 Q. All right. 9 We had turned to a discussion of Union 10 Carbide while you were providing further grievances 11 from Mr. Petty's report that is now in this case. So 12 I didn't want to interrupt that. So we left off with 13 the Union Carbide coker right now. 14 MR. BUTHOD: Form. 15 THE WITNESS: I'm quite certain 16 there are other issues that are embedded in there that 17 I haven't covered, but short of going through every 18 page in his report, I can't think of anything else 19 right now. We talked about the dermal calculation 20 that he did and his misunderstanding and 21 misrepresentation of the literature for adding 22 additional exposure. 23 Basically the application of the Shell 24 exposure estimate to any facility in the world, and 25 any worker at any time without any regard to personal Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 184 1 protective devices, respirators, such as those 2 described by Mr. Wilkinson at both the Shell and the 3 Exxon facility where he claimed to have used supplied 4 air respirators. 5 I've covered as much as I can pull out 6 of my head right now. 7 BY MS. CLANCY: 8 Q. Looking at this would it help you to -9 A. Let me -- I'll do that a little more to 10 be sure there isn't another major point I've forgotten 11 about. 12 I mean, I think that I said it earlier 13 but perhaps I should reiterate again that when I talk 14 about conducting a proper exposure assessment, you 15 have to understand the workplace, the work products, 16 the tasks and activities. Mr. Petty didn't know 17 anything about any of those issues with regards to 18 Mr. Wilkinson or Mr. Stubbs. So I don't know. 19 He would have been unable to do an 20 exposure assessment were it not for him making up this 21 method deriving information from a Shell exposure 22 estimate that was never designed to be used in that 23 application. 24 Q. And how do you know it was never 25 designed to be used in that application? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 185 1 A. Well, read the document. Read the 2 disclaimers in the document. I spoke with Carolyn 3 Phillips, one of the people intimately involved in the 4 development of that work. 5 Q. Is that what she told you? 6 A. Oh, yes. 7 Q. She told you it was never designed to be 8 used for purposes of assessment of other exposures? 9 MR. DILLARD: Object to form. 10 THE WITNESS: Of individual's 11 exposure or certainly any individual at an entirely 12 different type of facility, or owned by an entirely 13 different organization. And that's what Mr. Petty 14 did. 15 And I think also importantly, Mr. Petty 16 simply ignored -- not ignored, he was aware of it and 17 chose not to use it, that is specific data from 18 contractors, including Mr. Stubbs. He totally 19 disregarded that information, critical information. 20 BY MS. CLANCY: 21 Q. And that's the data that you brought 22 with you today? 23 A. Yes. Again, that's all that comes to 24 mind at this point. If that isn't enough. 25 Q. If something else occurs to you over the Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 186 1 course of this deposition, please feel free to 2 interrupt me and we can go back to that topic. 3 A. Terrific. 4 Q. Because I want to make sure to the 5 extent you can recall today your criticisms of 6 Mr. Petty's opinions in this, I'd like to hear you 7 testify to them today. 8 A. Great. 9 Q. Okay? What employees have you spoken to 10 at Shell besides Ms. Phillips? 11 A. For this case? 12 Q. Uh-huh. 13 A. None. 14 Q. What employees at Exxon have you spoken 15 to for this case? 16 A. None. 17 Q. And employees for Union Carbide for this 18 case? 19 A. None. 20 Q. And since we know you're using 21 interviews with employees that you had in the Scott 22 case for purposes of your opinion in this case as to 23 Union Carbide, are there any employees that you have 24 spoken to at Exxon in other cases that you're going to 25 use those interviews for purposes of your opinions Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 187 1 today? 2 MR. MAHER: Objection. Form. 3 THE WITNESS: No. 4 BY MS. CLANCY: 5 Q. How about at Shell? Have you spoken to 6 employees at Shell in the context of other scenarios 7 that you're going to use those conversations, or that 8 learned from those conversations as a basis for your 9 opinion today? 10 A. There is no specific information that I 11 can think of at this point in time. 12 Q. You mean no specific person? 13 A. Person or information derived from that 14 individual that I would use at this time. 15 Q. So the only interview -- the only 16 interview with a Shell employee that you can recall as 17 you sit here today that you would use for purposes of 18 providing your opinion in these cases is the interview 19 you had with Carolyn Phillips; is that right? 20 A. Yes. 21 Q. And there is no -- you did not speak to 22 an Exxon employee for purposes of providing your 23 opinion in this case? 24 A. Correct. 25 Q. Is there anyone else at Union Carbide Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 188 1 that you have spoken to outside of the two individuals 2 we just discussed, which are set forth on your site 3 visit analysis? 4 A. I may have talked to others in the past, 5 but there's none specifically for this case. Nor is 6 there anything that I'm specifically relying on in 7 those discussions at this point in time. 8 Q. Did you talk to any employee of Radiator 9 Specialty or U.S. Steel for purposes of providing your 10 opinion in this case? 11 A. No. 12 Q. Do you have any further -- I believe you 13 mentioned one criticism that I can recall right now of 14 the -- Mr. Petty's Liquid Wrench analysis. Do you 15 have any other criticisms of that? By that I mean the 16 report he did on Mr. Wilkinson's Liquid Wrench 17 analysis. 18 A. I mean, again, I cannot think of 19 something specific other than the times, the length of 20 time that he attributes to the use of Liquid Wrench by 21 the plaintiff, the amount of skin contact. 22 His misunderstanding of the literature 23 with regards to the dermal contribution of total dose 24 to the individual with skin contact, he's completely 25 misinterpreted, misunderstands that data. I just Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 189 1 don't think -- he's not aware of it, I guess. But 2 he's misinterpreted it severely. 3 Q. Are you talking about the data in the 4 dermal number -- the supplemental dermal number he put 5 in the original report, or are you talking about his 6 dermal analysis in the Liquid Wrench report? 7 A. It's both. I mean, he uses that same 8 assessment that 20 to 30 percent increase of whatever 9 the airborne exposure was as an additional 10 contributing factor, and doesn't realizes that 20 to 11 40 percent is 20 to 40 percent of the exposure from 12 one part per million. 13 And it is not related to any increase in 14 the exposure. That was just something the authors had 15 recognized at one part per million that a particular 16 solvent contributed 20 to 40 percent of one part per 17 million. And he misunderstood. That's what I'm 18 guessing. He simply misunderstood that research. 19 Q. Okay. Any other criticisms of the 20 Liquid Wrench analysis? 21 A. No. But if I come across something 22 else, I will bring it up. 23 Q. Is it important to flush out equipment 24 prior to opening something that has Benzene in it? 25 A. Yes. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 190 1 Q. Why is that? 2 A. Two reasons. One is fire and explosion, 3 and two is toxicity. 4 Q. And that's if there are -- if when you 5 break open the equipment and the equipment hasn't been 6 flushed out, you have the potential for being exposed 7 to toxic substances? 8 MR. BUTHOD: Form. 9 THE WITNESS: You have the 10 potential of being blown up. 11 BY MS. CLANCY: 12 Q. And you also have potential for exposure 13 to toxic substances; is that correct? 14 A. Yes. I think that would come second to 15 concern for being blown up or engulfed in fire. 16 Q. So it's your opinion then if, like for 17 example, prior to a turn around or prior to opening of 18 equipment if a system isn't fully purged and flushed 19 of any Benzene containing product, that presents a 20 dangerous situation for the workers working around 21 that equipment; is that correct? 22 MR. BUTHOD: Object to the form of 23 the question. 24 THE WITNESS: A potentially 25 dangerous situation. Now, you also have to look at Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 191 1 what sort of personal protective equipment they were 2 wearing, or what other measures were in place to 3 eliminate or reduce their exposure. 4 BY MS. CLANCY: 5 Q. So you're saying it is a potentially 6 dangerous situation, one. And two, that you have to 7 then correct that danger by either wearing personal 8 protective equipment or taking other measures to 9 prevent exposure; is that correct? 10 MR. MAHER: Objection. Form. 11 MR. BUTHOD: Form. 12 THE WITNESS: Yes. A good 13 example, if you read Mr. Wilkinson's deposition, he 14 indicates at Exxon and Shell he used supplied air 15 respirators, fresh air when he was loosening lines, I 16 think he said. 17 BY MS. CLANCY: 18 Q. Okay. 19 A. So even if there were some residual 20 material in there, he was properly protected to 21 prevent inhalation of some harmful level of exposure. 22 Q. So to the extent the equipment is opened 23 up and there is potential for residual material in the 24 equipment, then respirators should be worn or other 25 protective measures should be taken to prevent Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 192 1 non-exposure to that residual material; is that 2 correct? 3 MR. BUTHOD: Form. 4 THE WITNESS: Again, that's 5 correct. If it has not been properly done, there are 6 measures that these individuals in the field know. If 7 they loosen a bolt and material still is draining out 8 or spraying out, because maybe a line or main under 9 pressure immediately bolted back again and reflushed 10 the lines again because something happened and it 11 wasn't done completely. 12 So there are other measures besides just 13 wearing a respirator that's recognizing when there is 14 a potential issue, and then correcting that issue. 15 BY MS. CLANCY: 16 Q. So when a equipment has remnants in it 17 or has not been fully flushed out of Benzene 18 containing equipment, then upon opening there are 19 other measures that need to be taken, such as a 20 respiratory protection or closing the equipment back 21 up to protect workers' safety; is that correct? 22 MR. BUTHOD: Form. 23 MR. MAHER: Objection. 24 THE WITNESS: It may or may not 25 be. You have to understand, and that's why -- again, Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 193 1 this is one of the flaws of Mr. Petty. He had no idea 2 whether the line was flushed, whether the line 3 contained a Benzene containing product. If it did 4 contain a Benzene containing product what percentage? 5 So a lot of the lines, you wouldn't -6 once the contractor got in there during a turn around 7 or a shut down, there was no need for respiratory 8 protection. Because the lines had been cleaned. They 9 had been tested and there was no requirement for 10 respiratory protection. 11 But in order to do that, you have to 12 understand what process you're involved in and what 13 products that are in those lines or that equipment. 14 BY MS. CLANCY: 15 Q. Okay. So it is your opinion that a line 16 can be fully flushed and cleaned such that there is no 17 need for respiratory protection? 18 A. Oh, sure. 19 MR. MAHER: Objection. Form. 20 BY MS. CLANCY: 21 Q. And obviously my prior question was 22 referring to Benzene containing materials. I was 23 talking about fully flushing and cleaning with respect 24 to Benzene containing materials; did you understand 25 that? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 194 1 MR. BUTHOD: Form. 2 THE WITNESS: Sure. And again, my 3 point is in going back to what Mr. Petty did, is he 4 had no knowledge of what Benzene containing products, 5 if any, that Mr. Stubbs or Mr. Wilkinson were working 6 around. Or whether there was any measurable Benzene 7 in there at the time that they were working, 8 conducting their work on a piece of equipment or a 9 line. 10 BY MS. CLANCY: 11 Q. Okay. 12 So I'm trying to differentiate. That 13 was your criticism of Mr. Petty. I'm just asking you 14 generally with respect to a line that has Benzene 15 containing products in it, it's your opinion that a 16 line like that can be flushed and thus broken open 17 safely without the need for use of respiratory 18 equipment when working around that line; is that 19 correct? 20 A. Yes, that's the design of the process. 21 Q. And that's your opinion? 22 A. Correct. 23 Q. Is it your opinion that the Shell 24 historic exposure assessment study -- is it your 25 opinion that the Shell historic exposure assessment Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 195 1 study did not use any actual data in coming to its 2 conclusion? 3 MR. DILLARD: Object to the form. 4 THE WITNESS: No. 5 BY MS. CLANCY: 6 Q. Did you think that they did actually 7 consider actual data in deriving to their conclusion? 8 A. They had a table in there where they 9 were -- here it is, where they were attempting to 10 validate some of the numbers they were coming up 11 with. It was a very limited, and I think I touched on 12 this before, it was a very limited number of samples. 13 And was also a very limited number of 14 trades that they actually had some historical data 15 on. So they attempted to do that. 16 But in my view, the data was 17 insufficient to draw the conclusions that their data 18 -- in particular their data at the higher levels was 19 actually close to being accurate. 20 Q. So even if they used actual data, you're 21 saying the actual data that they used was 22 insufficient? 23 A. Correct. Because it was only a few 24 samples, and it was of operators primarily. There was 25 some other data, but there were very few samples that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 196 1 they used for that validation part of the study. That 2 was clearly a weak part of their assessment. 3 Q. To use a only few samples in order to 4 gather their assessment weakened the assessment; is 5 that correct? 6 A. Correct. I mean, the numbers weren't 7 even so important to them. It was the hierarchy of 8 exposures, which ones were likely the highest and 9 which ones were likely the lowest. The numbers 10 themselves weren't as important to them. 11 Q. Is that what you learned from speaking 12 with Carolyn Phillips? 13 A. Yes. 14 Q. And why did she say that the numbers and 15 not the hierarchy were important? 16 A. It's reversed. 17 Q. I'm sorry. I mean, excuse me, that the 18 hierarchy and not the numbers were important? 19 A. Again, this was part of a larger study 20 where there were -- an epidemiological type study 21 where they were trying to determine whether or not 22 disease from Benzene exposure was associated -- could 23 be associated causally with -- on a dose dependent 24 basis. 25 Q. Is that it? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 197 1 A. Yes. 2 Q. I want to go back to something that we 3 covered and then we took a break, and I forgot to go 4 back. 5 You were saying that in the absence of 6 -- you were saying -- we were walking through the 7 tenet what you as an industrial hygienist would 8 recommend to properly conduct a historic exposure 9 assessment. 10 And the three things that you had said 11 were -- first use actual monitoring data. If you 12 don't have actual monitoring data, you use surrogate 13 data from similarly situated workers; is that 14 correct? 15 A. Yes. 16 Q. And then if you can't use surrogate data 17 from similarly situated workers, then you use modeling 18 data; is that correct? 19 A. Again, there was one more. 20 Q. Right. Then you said that inserting in 21 that, you needed to consider data on total hydrocarbon 22 exposure. And I wanted to ask you how that fit that 23 in. 24 A. Well, I used that as an example. That 25 was just an example. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 198 1 Q. Okay. 2 A. You can use other types of exposures 3 under some circumstances to relate to a different 4 constituent. And I used that type of hydrocarbon in 5 Benzene as an example. 6 Q. So when you were deriving your 7 methodology for doing a historical exposure 8 assessment, you were basing it on what would do to do 9 a total hydrocarbon exposure; is that correct? Did I 10 get that right, is that what you were... 11 A. No. Again, I was just using that as an 12 example. There are other examples. You might use 13 xylene to evaluate toluene exposure. I'm saying -14 I'm using -- I gave you the example of using total 15 hydrocarbons as an example to evaluate Benzene 16 exposure. 17 Q. I'm sorry, but I do not understand what 18 you mean, how that fits in with what you're saying. 19 A. Let me give you an example. 20 MR. MAHER: Objection form. 21 THE WITNESS: You go to a 22 facility, they work with a gasoline product. And they 23 have lots of total hydrocarbon data. And as part of 24 that total hydrocarbon, Benzene is a one percent or 25 two percent component. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 199 1 They didn't measure for Benzene though. 2 If you want to get an understanding of what the 3 Benzene exposures were, but you only have results in 4 total hydrocarbons. 5 There is literature, several studies 6 that relate the ratio of total hydrocarbons to 7 Benzene. That's generally a ratio of about 100 to 300 8 to one. 9 So you can take the total hydrocarbon 10 numbers and divide by 100 or 300, and that will give 11 you a good estimate of what the Benzene concentration 12 would have been. 13 BY MS. CLANCY: 14 Q. So would that fall into this step 3, the 15 modeling data? 16 A. No, the one before that. 17 Q. It would fall into the surrogate data? 18 Oh, okay. You could use surrogate -- I finally 19 understand. You could use surrogate data of total 20 hydrocarbon exposure to other's experience to then 21 derive Benzene exposure as to the subject at issue? 22 A. Correct. 23 Q. With respect to Union Carbide, what are 24 your opinions based on the -- let me just pull your 25 designations by Union Carbide for a second. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 200 1 I'll mark as Deposition Exhibit Number 2 17 the designation -- your designation by Union 3 Carbide in this case. 4 (DOCUMENT MARKED PLAINTIFF, SPENCER 5 DEPOSITION, EXH. NO. 17, FOR IDENTIFICATION.) 6 BY MS. CLANCY: 7 Q. I'll hand this to you, and ask you if 8 this is what you've been hired by Union Carbide to 9 testify to about? 10 A. (WITNESS EXAMINING DOCUMENT.) 11 I think it's broader than, you know, 12 what we've been talking about today and what I was 13 prepared to testify for or about. 14 Q. Do you want to just tell me how you 15 would change it? 16 A. Well, "state of the art knowledge at 17 relevant points in time concerning Benzene and other 18 chemicals," I'm not sure what's meant by "other 19 chemicals". I was focused on Benzene as an issue at 20 that facility. 21 I guess in a sense I have talked about 22 other chemicals when I talked about what the feedstock 23 was, and what the byproducts were in the products at 24 that facility, and why some of the testimony is just 25 not relevant. So maybe that is true. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 201 1 Q. Well, may I see that for a second so I 2 could look at the sentence that you're referring to? 3 Thank you. 4 Will you be discussing on the state of 5 the art knowledge with respect to Benzene historically 6 as opposed to what was known in the '30s, '40s, '50s 7 about the hazards of Benzene? 8 MR. MAHER: Object to form. 9 THE WITNESS: I think you had 10 asked me some questions about that today. 11 BY MS. CLANCY: 12 Q. And you said no. 13 A. Well, no. I said that I'm aware of the 14 NIOSH criteria document up to 1974, which did not list 15 Benzene as a carcinogen. And that was an extensive 16 review in 1974. And they did not change that until 17 1976. 18 So I think from that standpoint, we have 19 talked about that, and I guess that fits, you know, 20 the state of the art knowledge discussion. 21 Q. So the extent of your state of the art 22 opinion would be with respect to starting with the 23 NIOSH criteria document issued in 1974? 24 MR. MAHER: Object to form. 25 THE WITNESS: Not necessarily. I Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 202 1 guess the function of the question that are asked. 2 You just happened to asked me a question that related 3 to that particular issue. 4 I am certainly prepared to talk about 5 the fact that Benzene was considered a poison for many 6 years. It was considered to be a poison in what we 7 would consider today very high doses, hundreds and 8 hundreds of parts per million. And certainly that 9 knowledge and the standards changed over time as more 10 information became available. 11 BY MS. CLANCY: 12 Q. When did Union Carbide first become 13 aware that Benzene was a carcinogen? 14 MR. MAHER: Object to form. 15 THE WITNESS: I think you had 16 asked me that before, and I do not know the answer to 17 that. 18 BY MS. CLANCY: 19 Q. What personal protective equipment did 20 Union Carbide provide to contract workers? 21 MR. MAHER: Object to form. 22 THE WITNESS: I don't know that 23 they would have provided any equipment. The employers 24 should have provided that equipment. 25 BY MS. CLANCY: Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 203 1 Q. It just says "and personal protective 2 equipment," so your opinion with respect to personal 3 protective equipment is that the employer should have 4 provided that? 5 MR. MAHER: Object to form. 6 THE WITNESS: That their employer 7 should have provided that, yes if it was necessary. 8 Again, a lot of the environments, a lot of the 9 situations under which these contractors were working 10 did not require personal protective equipment. In 11 fact, I would say most did not. 12 BY MS. CLANCY: 13 Q. With respect to Union Carbide, what is 14 your opinion with respect to the management of their 15 policies and procedures vis-a-vis contractors? 16 MR. MAHER: Object to form. 17 THE WITNESS: Again, I think that 18 was something we touched on earlier today. 19 BY MS. CLANCY: 20 Q. Actually, I only talked about Exxon and 21 Shell so far. 22 A. Oh, we did? 23 Q. Yeah. 24 MR. BUTHOD: I beg to differ, but 25 go ahead and finish your answer. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 204 1 THE WITNESS: Similarly, I have 2 documents. Did you mark that file? The safety plans, 3 the testimony of Ken Lyons. There was testimony, you 4 know, and it was probably you had asked me earlier 5 whether there is anybody else, and there is testimony 6 of Richard LaCor. 7 BY MS. CLANCY: 8 Q. What case was that in? 9 A. Ringstaff. 10 Q. So you will be relying in part on the 11 testimony of Richard LaCor in Ringstaff for purposes 12 of providing your opinions with respect to Union 13 Carbide in this case? 14 MR. MAHER: Object to form. 15 THE WITNESS: Correct. With 16 regard specifically to their health and safety 17 programs and procedures and policies, and so forth. 18 BY MS. CLANCY: 19 Q. And this, I think, is your copy of the 20 estimate of historic Benzene exposures for Shell. So 21 I'm going to put that back here. 22 The depositions, earnings, and Wilkinson 23 affidavit, which are the depositions you reviewed in 24 this case, the earnings and statements you reviewed in 25 this case and the affidavit of Mr. Wilkinson you Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 205 1 reviewed in this case; is that correct? 2 A. Yes. 3 MS. CLANCY: I'm going to mark 4 this as Exhibit 18. 5 (DOCUMENT MARKED PLAINTIFF, SPENCER 6 DEPOSITION, EXHIBIT NO. 18, FOR IDENTIFICATION.) 7 MR. BUTHOD: Denyse, why do you 8 want another set of all that? 9 THE WITNESS: Because I want it. 10 MR. BUTHOD: I'm not saying you 11 don't have a right to, I just don't want to have to 12 pay for that when I buy my copy of the exhibit. 13 MS. CLANCY: Then don't buy 14 Exhibit Number 18. 15 MR. MAHER: Can I ask you a quick 16 question? 17 MS. CLANCY: Want to go off the 18 record for a minute? 19 MR. MAHER: It's not going to be 20 that big of a deal. I was just wondering whether or 21 not you're almost done. 22 MS. CLANCY: I don't know. 23 BY MS. CLANCY: 24 Q. This here is the Petty report I believe 25 for Stubbs. I'm going to put that back in here. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 206 1 A. Okay. 2 Q. And this is Wilkinson's deposition from 3 the asbestos case Nash. So I'm not going to mark 4 that. 5 A. Yes, two of them. 6 Q. And what I'm trying to understand is the 7 two boxes over there, the remaining two boxes, those 8 are Exxon documents, which you have summarized; 9 right? I mean in terms of the content of them? 10 A. Yes. 11 Q. So may I see the summary again? You can 12 put that back. I'm not going to mark that. This 13 should be the extent of the exhibits. 14 What are you charging for your testimony 15 today? 16 A. 245 per hour. 17 Q. What do you charge if you come to trial 18 on a case? 19 A. 245 per hour. 20 Q. And what do you charge if you are not 21 giving deposition testimony or at trial? Is it the 22 same rate? 23 A. Oh, yes. 24 Q. It's always 245 per hour? 25 A. No matter what I do. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 207 1 Q. No matter what you do, okay. 2 What are your earnings on a yearly 3 basis. Let's say, for last year in terms of 4 litigation? 5 A. I have no idea. 6 Q. What were your gross earnings last year? 7 MR. DILLARD: No, unrelated to 8 litigation. 9 MR. BUTHOD: You don't have to 10 answer that. 11 THE WITNESS: I'm sorry, for 12 litigation? 13 BY MS. CLANCY: 14 Q. Yes. 15 A. I have no idea. I don't keep any 16 records in that fashion. 17 Q. How many cases are you working on right 18 now? 19 A. I do not know the answer to that. 20 Q. Is it more than ten? 21 MR. BUTHOD: Now, Denyse, the line 22 you always draw before with your witnesses is how many 23 cases have you actually been disclosed or presented as 24 a witness in or at trial. I think that's a fair 25 enough line that we're going to draw with these Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 208 1 witnesses. 2 If you want to discover where he's been 3 disclosed or presented for deposition or trial, feel 4 free. But I'll make the same objection that you 5 always make with your witnesses about other areas 6 where he's been retained but not disclosed. 7 MS. CLANCY: I have no problem 8 with that if you want to tell me -9 MR. BUTHOD: Do you understand the 10 distinction I'm talking about? 11 THE WITNESS: Well, where I've 12 been disclosed? 13 MR. BUTHOD: Yeah, let's say some 14 lawyer calls you and wants to get your professional 15 advice on something, but has never made you his expert 16 witness or whatever, she doesn't get to find out about 17 that. 18 THE WITNESS: I honestly don't 19 know the answer to where I've been disclosed and where 20 I haven't. I get calls from people all the time 21 looking for information. I get calls from people 22 telling me I'm in cases that I know nothing about. 23 BY MS. CLANCY: 24 Q. How many times have you given your 25 testimony to date this year? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 209 1 A. It would be a guess. Maybe once or 2 twice a month. 3 Q. So you've given a total of -4 A. Good question. 5 Q. So about eight depositions to date so 6 far this year? 7 A. Perhaps. I really don't know offhand. 8 I don't think it would be a whole lot different from 9 that. 10 Q. How many times have you appeared at 11 trial to testify this year? 12 A. I think it was this year. It was early 13 in the year I believe. I'm not positive. I believe 14 twice that I can think of. No, I'm sorry, three. 15 There is a third. 16 Q. What were the three trials that you 17 testified in this year? 18 A. Two were in California. One was named 19 Horr. 20 Q. How do you spell that? 21 A. H-o-r-r. And the other one was 22 Morrison. And the last one was Ringstaff. 23 Q. Were Horr or Morrison Benzene cases? 24 A. No. 25 Q. Were they asbestos cases? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 210 1 A. Yes. 2 Q. And what Benzene cases did you testify 3 in at trial last year? 4 A. Last year? 5 Q. Yes. 6 A. I couldn't tell you. 7 Q. How many Benzene cases have you 8 testified in at trial? 9 A. I don't believe I testified in any last 10 year. I can't recall any. 11 Q. Prior to Ringstaff, what was the last 12 Benzene case that you testified in at trial? 13 A. Maybe on one in upstate New York. I 14 don't remember the name of it. It was a couple of 15 years ago. 16 Q. Who was plaintiff's attorney? 17 A. I couldn't tell you. 18 Q. Who was the defense attorney? 19 A. Kyle Carpenter. 20 Q. And this was upstate New York? 21 A. Yes. 22 Q. What city? 23 A. Buffalo area? I'm not exactly positive. 24 Q. And that's the last Benzene case you 25 remember testifying in at trial prior to Ringstaff? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 211 1 A. Yes. That's the last one I can recall. 2 Q. What was the outcome of the Buffalo 3 case? The one you testified for Kyle Carpenter? 4 A. A defense verdict. 5 MS. CLANCY: I'm going to take a 6 five-minute break and I may be done. 7 THE WITNESS: Great. 8 VIDEOGRAPHER: Time on the screen 9 is 16:08:16. We're going to go on break. 10 (WHEREUPON A RECESS WAS TAKEN.) 11 VIDEOGRAPHER: Time on the screen 12 is 14:21:30. We're back on the record. 13 BY MS. CLANCY: 14 Q. Mr. Spencer, you were not at Shell when 15 Shell historical exposure assessment study was done; 16 correct? 17 A. Correct. 18 Q. And you weren't part of putting together 19 the protocol for that study; correct? 20 A. Correct. 21 Q. And you weren't part of conducting that 22 study; correct? You did not conduct the Shell -23 A. Correct. 24 Q. And you didn't play any part in 25 conducting the Shell historical exposure assessment Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 212 1 study; correct? 2 Q. And you didn't send that study to OSHA 3 or to NIOSH; correct? 4 A. That is correct. 5 Q. So in terms of why the study was done, 6 are you going to be relying -- you will be relying on 7 Shell people to tell you why -- the purpose of the 8 study; correct? 9 MR. DILLARD: Object to the form. 10 THE WITNESS: No. I will not say 11 that I'm going to rely on Shell people. As I said 12 before, I think they helped corroborate the fact that 13 that the exposure estimate only goes up to 1975, and 14 represents data only up to that point, not '76 15 forward. 16 That some of that data was from units 17 such as aromatics unit, which neither of these 18 individuals claimed to have worked around. So I don't 19 know -- I'm not necessarily relying on Shell people 20 for that study. But I think the assessment, the 21 estimate and the document speaks for itself. 22 MS. CLANCY: Object as not 23 responsive. 24 BY MS. CLANCY: 25 Q. My question was are you saying that you Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 213 1 know better than the Shell employees who designed, 2 conducted and implemented the study the purpose for 3 the study? 4 A. I'm not saying that I know better. 5 Q. Okay. 6 A. I'm saying, I can read, and I did have a 7 conversation with one of the members involved in that 8 assessment. 9 Q. Okay. 10 A. That corroborated my understanding of 11 what I read. 12 Q. All right. But for the reason why the 13 study was instituted, created and how it was 14 conducted, you would have to defer, would you not 15 ultimately, to the Shell employees who did that study; 16 correct? 17 MR. DILLARD: Objection. He's 18 already answered that. He read it. 19 THE WITNESS: No, I do not believe 20 I have to defer to that. If they tell me something 21 different, I will certainly consider that. But I have 22 not heard that in talking to one of the participants 23 in that assessment, that being Carolyn Phillips. She 24 basically corroborated what I read. 25 BY MS. CLANCY: Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 214 1 Q. Okay. If you are told something 2 different by a Shell employee who participated in and 3 conducted that study, then you would have to take that 4 into consideration in terms of formulating your 5 opinions with respect to that study; correct? 6 A. Certainly I would take into 7 consideration. It still doesn't take away from the 8 fact that there are so many issues within that 9 assessment in using it, that it's just hard for me to 10 see how it's going to change my overall opinion in the 11 use of the study as done by Mr. Petty. 12 Q. Have you read the deposition of Howard 13 Kusnetz in this case? 14 A. No. 15 Q. That was not provided to you by the 16 attorneys for Shell? 17 A. I do not believe so. 18 Q. With respect to your experience, after 19 you left NIOSH in 1982 and went to the Coast Guard -20 actually, I can start even after that. After you left 21 the Coast Guard in 1987 and went to the corporation 22 industrial hygienist environmental coordinator at 23 United States Fidelity and Guarantee Company, is that 24 an insurance company, United States Fidelity? 25 A. Yes. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 215 1 Q. In your time in working at United States 2 Fidelity and Guarantee Company, did you ever do 3 exposure assessments at petroleum refineries and 4 petrochemical companies for Benzene? 5 A. I know I did some work at chemical 6 companies. I cannot recall right now whether I did 7 any work at refineries. I don't believe that I did. 8 Q. And was it petrochemical companies that 9 you did work for when you were at the insurance 10 company? 11 A. I don't -- you know, I've been to so 12 many sites, I couldn't tell you specifically. I've 13 forgotten more places that I've been to than I 14 remember. 15 Q. Okay. But as you sit here today, you 16 don't recall specifically doing exposure assessments 17 for purposes of analyzing Benzene exposure at 18 petroleum refineries or petrochemical facilities while 19 working at United States Fidelity and Guarantee 20 company; is that correct? 21 A. As I sit here today. No. 22 Q. When you were working as a principal at 23 Draft-McCune-Walker in Towson, Maryland from 1988 to 24 1990, did you perform any exposure assessments for 25 Benzene at any petroleum refineries or petrochemical Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 216 1 companies? 2 A. Not at a petroleum company, no. I have 3 done work at other facilities and environmental 4 assessments for Benzene and total hydrocarbons. 5 Q. But not at a petroleum refineries or 6 petrochemical company? 7 A. Correct. 8 Q. And then when you -9 A. Well, again, you're asking me to go back 10 and remember every place that I've been to, and I've 11 been to a number of refineries and chemical plants 12 throughout my career where I've done monitoring. And 13 I don't remember them all honestly, without going back 14 and looking. So you're asking me to go back and 15 recall ten years ago. I go to places every week. I 16 just don't remember them all. 17 Q. Okay. Well, I'm asking you specifically 18 as you sit here today, do you remember while you were 19 working as a principal at Daft-McCune and Walker doing 20 exposure assessments for Benzene at petroleum 21 refineries or petrochemical companies? 22 MR. BUTHOD: He's answered that. 23 MR. DILLARD: He just answered it. 24 THE WITNESS: And now, thinking 25 about this there was a marketing facility where I did Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 217 1 some work. It was environmental work, and we were 2 looking at contamination in a community assessment, 3 and onsite assessment for V-techs and total 4 hydrocarbons. I think that was at a -- it was a Crown 5 facility and an Exxon facility here in Maryland. 6 BY MS. CLANCY: 7 Q. And when were you doing that? 8 A. That was 19 -- the late 1980s. 9 Q. So that -- go ahead. 10 A. At eastern Baltimore. 11 Q. And you were looking at the impact 12 environmentally outside the refinery of the V-techs 13 unit on the community? 14 A. We were doing some work inside and 15 outside based on some -- there was some release, some 16 contamination issues. We were looking at that. 17 Q. And then when you were working at 18 National Advisory -- National Medical Advisory Service 19 as vice president and director of environmental 20 sciences, did that job entail you doing exposure 21 assessment for Benzene or petroleum refineries or 22 petrochemical facilities? 23 A. I cannot recall a specific incident. 24 But, again, I went to so many different places. I 25 can't give you an accurate answer without really -- I Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 218 1 just can't say right now. 2 Q. You can't say as you sit here today, you 3 cannot recall any time while you were at National 4 Medical Advisory Service that you did a historical 5 exposure assessment for Benzene at a petroleum 6 refineries or petrochemical facility? 7 A. Historical? I'm thinking more real time 8 sampling. 9 Q. Or real time? 10 A. I just can't say. It's likely that I 11 did, but I can't give you the specifics of that. 12 Q. Why do you have say it's likely that you 13 did? 14 A. Because I've just been involved in this 15 type of work and business throughout my career. 16 Q. Well, I'm asking specifically when you 17 were at the National Medical Advisory Service. 18 A. I cannot put everything, all of my 19 experiences and all the places I've been into the 20 chronological order you're looking for. So I can't 21 tell you specifically at that point in time. 22 I'd have to go back and, I don't know, 23 see if I can somehow pull all that together. You 24 know, I've been to refineries, I've been to chemical 25 plants on a number of occasions. I've done monitoring Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 219 1 for Benzene many times. But I can't tell you -- give 2 you these specific times and locations and facilities 3 throughout time. 4 Q. Well, what is National Medical Advisory 5 Service? 6 A. A consulting firm. 7 Q. And what do you consult on? What did 8 you consult on? 9 A. Health and safety and medical issues, 10 and environmental issues. 11 Q. And what area were you based in? Was it 12 primarily in the Maryland area that you did your work, 13 or was it nationwide? 14 A. No, all over the country. 15 Q. What would help draw your memory as to 16 whether or not you did actually do a Benzene exposure 17 assessment at a petroleum refineries or petrochemical 18 facility while working at National Medical Advisory 19 Service? 20 A. Good question. Going back and -- I 21 don't know if I even have any old files or talking to 22 people that I worked with over the years. That's what 23 I'd have to do to accurately answer that question. 24 Q. And as you sit here today, you don't 25 know the answer to that question; correct? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 220 1 A. I know that I've been, like I said I've 2 monitored Benzene under a variety of conditions, 3 environmental conditions, workplace exposure, 4 conditions in chemical plants and refineries. 5 I've just been around the country, and 6 I've been into a number of places. Refineries in 7 California and Illinois and Texas, and Louisiana. I 8 suspect there's others, but I just don't recall them 9 all. 10 MS. CLANCY: Object as 11 non-responsive. 12 BY MS. CLANCY: 13 Q. My question is just specifically this: 14 Do you recall as you sit here today a specific 15 petrochemical or petroleum refinery facility as to 16 which you did a Benzene exposure assessment while you 17 were working at the National Medical Advisory Service? 18 A. I may have. I just can't tell you what 19 that is. I just don't recall the specifics of it 20 right now. 21 Q. When you were working at Equitable 22 Environmental Health in 1977 to 1980, did you do any 23 Benzene exposure assessment at petroleum refinery or 24 petrochemical facilities? 25 A. I do not recall having done that at that Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 221 1 time. 2 Q. Since you have started -- well, you have 3 your own company now; right? 4 A. Yes. 5 Q. And you started that in 1993? 6 A. Yes. 7 Q. Since you started your own company in 8 1993, how many Benzene exposure assessments have you 9 done at petroleum refineries or petrochemical 10 facilities outside of the course of litigation? 11 A. I'd just have to go back and look. 12 Perhaps half a dozen times. 13 Q. In what context or where, what 14 facilities have you done a Benzene exposure assessment 15 outside the course of litigation at a petroleum 16 refinery or petrochemical facility? 17 A. I'm happy to tell you the states. I'm 18 not going to tell you who it was for. 19 Q. Okay. 20 A. I was in Louisiana, California. I've 21 been in Texas, Pennsylvania. Those are the 22 locations. Did I say Texas? 23 Q. Yes. 24 A. I've probably been there a couple of 25 times. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 222 1 Q. And so you would estimate that it's 2 about a half a dozen times that outside the course of 3 litigation that you've done a Benzene exposure 4 assessment at petroleum refineries or petrochemical 5 facilities since you've started your own company in 6 1993? 7 A. That I can recall, yes. 8 MS. CLANCY: I think that's all 9 the questions I have today. Thank you very much. 10 E X A M I N A T I O N 11 BY MR. DILLARD: 12 Q. Just a couple of quick questions, 13 Mr. Spencer. Do you recall some of the other, of the 14 more major mistakes that Mr. Petty made in his 15 exposure estimates in this case that you haven't 16 already told us about? 17 A. Well, there were other issues in 18 particular with Liquid Wrench, something that I did 19 not mention. It's as much an industrial hygiene or 20 toxicology issue, but that he really did not consider 21 that, in fact, toluene is in that product as well. 22 And I'm familiar with the literature 23 that describes toluene out competing the sites in the 24 human body where Benzene has metabolized to the 25 product that is considered a carcinogen. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 223 1 I think I mentioned several others. 2 Q. How about with respect to the Shell 3 historic exposure estimate? You mentioned -- not the 4 year 1975. You're talking about the one estimate that 5 Mr. Petty selected, the '70 to '75 data? 6 MS. CLANCY: Objection. Leading. 7 THE WITNESS: Well, are we talking 8 about the aromatics hydrocarbon -9 BY MR. DILLARD: 10 Q. Well, that would be part of it. 11 A. -- unit? And using -- well, I think I 12 mentioned before about extracting data from the 1970 13 to '75 period, when certainly within that -- following 14 that time period, there were changes made within most 15 chemical plants or refineries, due to both 16 environmental regulations, and because of growing 17 concerns for changes in the knowledge surrounding 18 Benzene. 19 MR. DILLARD: Thank you. That's 20 all I've got right now. 21 E X A M I N A T I O N 22 BY MR. MAHER: 23 Q. I have a few questions, Mr. Spencer. I 24 am -- strike that. 25 Based upon your experience in this Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 224 1 business, do you associate the existence of a coker 2 unit with a petroleum refining facility or a chemical 3 manufacturing facility? 4 A. A petroleum refinery facility where 5 there is crude oil as a feedstock. 6 Q. You have visited Union Carbide's 7 facility at Texas City? 8 A. Yes. 9 Q. You have had conversations with Dave 10 Hake, who is employed at Union Carbide's Texas City 11 facility? 12 A. I did. He took me around that day. 13 Q. And have you reviewed documents that 14 have been provided to you by Union Carbide in this 15 case and others? 16 A. Yes, I have. 17 Q. When you were out at Union Carbide in 18 January, did you see a coker unit at Union Carbide's 19 facility in Texas City? 20 A. Honestly, I was not looking for a coker 21 unit. But I would not anticipated seeing one, given 22 the types of feedstock that was at that Union Carbide 23 facility. 24 Q. Based upon your conversations with 25 Mr. Hake and your review of the documents that have Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 225 1 been provided to you by Union Carbide, have you seen 2 any indication that Union Carbide has now or ever has 3 had a coker unit or any facility for refining 4 petroleum? 5 A. I have not seen information indicating 6 that. And again, given the type of facility that 7 Union Carbide was operating, I would not anticipate 8 there would have been a Coker unit present. 9 MR. MAHER: Thank you very much. 10 Mr. AUBREY: I'll reserve my 11 questions until the time of trial. 12 MR. BUTHOD: I'll reserve my 13 questions, too. 14 E X A M I N A T I O N 15 BY MS. CLANCY: 16 Q. I have a clarification question. Tell 17 me what -- list for me every single change that 18 happened in 1975 that you were just referencing in 19 response to Mr. Dillard's questions. 20 A. Some of things that occurred would have 21 occurred during that time. And I certainly won't 22 pretend to list every one of them, but there were 23 environmental regulations which were changing, coming 24 into place for reduction of fugitive emissions. 25 There was certainly a growing awareness Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 226 1 of the, and I can't remember specifically when, the 2 occupational health standards or the TLVs at the time 3 prior to OSHA, just prior to 1970, were changing -4 had recently changed. So companies were working to 5 further manage and reduce the levels of exposure. 6 And I think the point is that Mr. Petty 7 applied this data to throughout the rest of time. 8 From the latter part of the 1970s into the 1980s and 9 the 1990s. He even applied it to periods of time 10 following, as I understood it when the plaintiffs were 11 diagnosed with their disease. 12 So he was assigning an exposure to them, 13 and indicating this exposure contributed to a disease 14 post the time that they had been diagnosed with 15 disease. 16 So getting back to my original point was 17 that things were changing. In 1976, '77 emergency 18 temporary standard came about, and the industry was 19 making many changes. I can't detail them all for you, 20 but changes in their procedures and programs to 21 further reduce. Requiring more protective equipment 22 where they didn't require it before, because the 23 emergency temporary standard was going from ten to 24 one. 25 Q. So you're saying that there was a sea Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 227 1 change -- are you saying that there was some sort of 2 sea change that happened in 1975 that people went from 3 being not as safe to much safer after 1975? 4 A. No. I'm not saying -- you said a sea 5 change? 6 Q. Uh-huh. 7 A. I'm not sure what that means. 8 Q. Have you ever read Mid Summer Night's 9 Dream? 10 MR. BUTHOD: I'm going to miss my 11 flight. 12 THE WITNESS: No, I have not. 13 BY MS. CLANCY: 14 Q. So you're saying there was something 15 major that happened in 1975 where companies went from 16 being prior to 1975 not so safe to much safer after 17 1975? 18 A. My understanding, my discussions with 19 Ms. Phillips is they made that cut off because 20 internally they felt there were changes that had 21 occurred within the organization in recognition of 22 the -- of both environmental and health and safety 23 changes that were either had taken effect or were 24 coming into effect. So that earlier data, '70, '75 as 25 earlier estimates were, in fact, going to be higher Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 228 1 than actual data from post '75. That was what she 2 conveyed to me. 3 Q. Are you referring to the 1975 emergency 4 temporary Benzene standards? 5 A. That's one of the driving forces, yes. 6 Q. And is it your opinion that Shell 7 adopted the one part per million proposed by the 8 emergency temporary standard as an internal standard? 9 A. Yes. Again, that's a discussion we had 10 earlier, and I'd have to go back and look at the 11 documents to give you an accurate answer. In general, 12 that's my understanding, but I have to go back and 13 look at the documents to be accurate. 14 Q. So in general it's your understanding 15 that Shell -- well, from your conversations with 16 Ms. Phillips that Shell became safer after 1975 17 because it did things such as adopt an internal 18 standard like one part per million as proposed by the 19 emergency temporary regs? 20 MR. BUTHOD: Form. 21 THE WITNESS: I don't know if I'd use 22 the word "safer." I mean, they took measures to 23 further reduce exposures. 24 BY MS. CLANCY: 25 Q. Such as adopt the one part per million Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 229 1 standard propounded by the emergency temporary Benzene 2 regs; is that correct? 3 MR. BUTHOD: Form. 4 THE WITNESS: It's my 5 understanding, yes. 6 MS. CLANCY: we have to change 7 tapes. 8 VIDEOGRAPHER: This is the end of 9 tape Number 4 in the deposition of John Spencer. The 10 time on the screen is 16:44:11. We're going to go off 11 the record. 12 (WHEREUPON A RECESS WAS TAKEN.) 13 VIDEOGRAPHER: This marks the 14 beginning of tape Number 5 in the deposition of John 15 Spencer. The time on the screen is 16:43:56. We're 16 back on the record. 17 BY MS. CLANCY: 18 Q. Mr. Spencer, you've never published an 19 article in a peer review journal with respect to 20 Benzene exposure assessments; is that correct? 21 A. That's not correct. 22 Q. Other than the one that you did on the 23 May 2006 article that you published on Liquid Wrench? 24 A. Correct -- well, no, it's not Liquid 25 Wrench. There were other products, not Liquid Wrench. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 230 1 Q. Have you ever published an article in a 2 peer review journal on Benzene exposure assessment at 3 a refinery or petrochemical facility? 4 A. No. 5 Q. Have you ever published an article in a 6 peer review journal with respect to toxicological 7 studies? 8 A. No. 9 Q. Have you ever performed toxicological 10 studies of Benzene? 11 A. No. 12 Q. Have you ever evaluated a cohort group 13 for purposes of doing an epidemiological study in 14 terms of analyzing what groups should -- what groups 15 should be in the cohort group based on their Benzene 16 exposure? 17 A. Yes. 18 Q. When was that? Based on their benzene 19 exposure. 20 A. Several years ago. 21 Q. Who did you do that for? 22 A. I'm not at liberty to say. It was an 23 individual study. 24 Q. Is it published? 25 A. No. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 231 1 Q. So it was a study that was never 2 published in any peer review journal; is that correct? 3 A. Correct. 4 Q. Is it your opinion that contract workers 5 at refineries do not have any greater risk for over 6 exposure to Benzene than employees at refineries? 7 MR. BUTHOD: Object to form. This 8 is way beyond anybody's direct examination, Denyse. 9 You're just starting over. Steve asked a limited 10 topic. Jim asked a limited topic. This doesn't have 11 anything to do with that. 12 MS. CLANCY: This is my deposition 13 I'm allowed to ask whatever I want. 14 MR. MAHER: You took a break and 15 then said you were done, and now you're starting over 16 again. 17 BY MS. CLANCY: 18 Q. I'm keeping going. Answer the question. 19 A. I don't know -- it doesn't matter 20 whether they're contract employees or facility 21 employees. You need to look at the task and look at 22 the activity. You need to look at the environment in 23 which they're doing the work. You need to look at the 24 process stream, and the products that they're being 25 exposed to. And that is what gives you your answer. Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 232 1 Q. And at Shell in the 1970s, are you aware 2 of any situations where contractors had greater risk 3 of exposure to Benzene than employees? 4 MR. MAHER: Form. 5 THE WITNESS: You mean risk by a 6 mathematical calculation? Is that how you define 7 risk? 8 BY MS. CLANCY 9 Q. Risk by means of exposure to greater 10 parts per million of Benzene than employees. 11 A. I don't know about at Shell, because I 12 certainly didn't see it in this case with 13 Mr. Wilkinson and Mr. Stubbs. I saw that theirs would 14 have been less than generally the workers within the 15 Shell facility. 16 But I am aware that there are certain 17 activities, such as mucking tanks that previously 18 contained Benzene, that that would present a higher 19 exposure and a higher risk as a result. And 20 oftentimes contractors were assigned that task. 21 But that's not something that 22 Mr. Wilkinson or Mr. Stubbs ever identified doing. 23 Q. And at Exxon, are you aware of any 24 instances where contractors were quantified as having 25 a greater risk of exposure to Benzene than employees? Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 233 1 MR. BUTHOD: Form. 2 THE WITNESS: Which are you 3 talking about the refinery or the chemical plant? 4 BY MS. CLANCY: 5 Q. I'm talking about Exxon Baytown, the 6 refinery and the chemical plant. 7 A. Well, there is a table in Mr. Petty's 8 report, and again, I don't think he recognized the 9 difference that it was the Baytown chemical plant, 10 there's data that had showed contractors with some 11 higher exposures than some of the other groups of 12 employees. 13 But again, there is information. 14 There's not differentiation as to the activities, as 15 to the product of process, and there is no indication 16 as to whether these individuals were wearing 17 respiratory protective equipment as described by 18 Mr. Wilkinson in his own testimony. 19 Q. When you say no differentiation as to 20 activities or products of processes, are you talking 21 about the Exxon document, or are you talking about 22 Mr. Petty's report? 23 A. Both. In particular, Mr. Petty's report 24 and that particular table that I saw from his report. 25 I did not see a differentiation made in that table or Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 234 1 in his report. 2 MS. CLANCY: That's all the 3 questions I have. 4 (DOCUMENT MARKED PLAINTIFF, SPENCER 5 DEPOSITION, EXH. 19, FOR IDENTIFICATION.) 6 MR. BUTHOD: Thank you. 7 VIDEOGRAPHER: This ends the 8 deposition of John Spencer, concluded on May 12, 9 2006. The time on the screen is 16:52:05. We're 10 going off the record. 11 (WHEREUPON, SIGNATURE OF THE WITNESS NOT 12 HAVING BEEN WAIVED, THIS DEPOSITION WAS CONCLUDED.) 13 14 15 16 17 18 19 20 21 22 23 24 25 Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 235 1 CERTIFICATE OF SHORTHAND REPORTER-NOTARY PUBLIC 2 I, Texas S. Eckstone, Registered Merit Reporter/Notary Public, the officer before whom the 3 foregoing deposition was taken, do hereby certify that the witness was by me duly sworn; that the testimony 4 of said witness was taken by me stenographically and thereafter reduced to typewriting under my 5 supervision; that said transcript is a true record of the testimony given; that I am neither counsel for, 6 related to, nor employed by any of the parties to this case and have no interest, financial or otherwise, in 7 its outcome. 8 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal this 14TH day of MAY 9 2006. 10 My Commission Expires: 11 JULY 1, 2008 12 __________________________ 13 Texas S. Eckstone, RMR Notary Public in and for 14 THE STATE OF MARYLAND 15 16 17 18 19 20 21 22 23 24 25 Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 236 1 INSTRUCTIONS TO THE WITNESS 2 Read your deposition over carefully. It is your right to read your deposition and make any 3 changes in form or substance. You should assign a reason in the appropriate column on the errata sheet 4 for any change made. After making any change in form or substance which has been noted on the following 5 errata sheet along with the reason for any change, sign your name on the errata sheet and date it. Then 6 sign your deposition at the end of your testimony in the space provided. You are signing it subject to the 7 changes you have made in the errata sheet, which will be attached to the deposition before filing. You must 8 sign in the space provided. The witness need not be a notary public. Any competent adult may witness your 9 signature. Return the original errata sheet and 10 transcript to the deposing attorney (attorney asking questions) promptly! Court rules require filing 11 within 30 days after you receive the deposition. Thank you 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 237 1 ERRATA SHEET 2 PAGE LINE CHANGE REASON therefore 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 DATE: DEPONENT SIGNATURE 25 ___________ _________________________________ Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298 JOHN SPENCER Page 238 1 2 3 SIGNATURE PAGE 4 OF 5 JOHN SPENCER 6 I hereby acknowledge that I have read the 7 foregoing deposition and that the same is a true 8 and correct transcription of the answers given by 9 me to the questions propounded, except for the 10 changes, if any, noted on the attached errata 11 sheet. 12 13 SIGNATURE: 14 15 ______________________________________________ 16 WITNESSED BY: 17 18 ______________________________________________ 19 DATE: ________________________ 20 21 22 23 24 25 Henjum Goucher Reporting Services LP 1-888-656-DEPO b35ba68c-1bcd-4edc-91ce-7c07decc4298