Document ypeG0dVKj42Rpyx615NoaqDx6

FILE NAME: Metropolitan Life (ML) DATE: 1994 May DOC#: ML259 DOCUMENT DESCRIPTION: Legal - Deposition of Dr. Herbert Abrams TOO'd 06TZ*ON XH/X1 9Z-ZI 96/2.Z/90 05814 01 01 02 02 03 03 04 04 05 05 IN 06 IN THE CIRCUIT COURT OF KANAWHA COUNTY NEST VIRGINIA KB: ASBESTOS Civil Action 21 22 22 23 23 5815 01 0021 02 03 03 04 04 05 05 WITNESS: SAMUEL LISH TOO (800) 621--1026 I-N-D-E-X Voluaft XXXI EXAMINATION vt'waaxs `nvhottoo PAGE: sst so or? rva sz-'zt aai so/xz/ao HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 relative to the health hazards of insulation 2 products. At the committee's first meeting they 3 should establish a policy, establish a program to 4 implement the policy, and establish a budget. 5 BY MR. MOTLEY: 6 Q. Now, Doctor, I want to turn to a 7 totally different area. 8 MR. GARRARD: Mr. Motley, am I 9 correct that at this poi.nt -- 10 MR. MOTLEY: Yes. I'm sorry. 11 Ladies and gentlemen of the jury, 12 from now until I say otherwise, or the Judge says 13 otherwise, I'm going to be discussing the case 14 against Metropolitan Life and not these other 15 folks. 16 BY MR. MOTLEY: 17 Q. Doctor, what did I just hand 18 you? 19 A. I didn't catch that. 20 Q. What did I just hand you? 21 A. You handed me what is called, 22 Diatomaceous earth, pneumoconiosis, California, 23 1952, a brief summary of some items of public HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1 health interest. 2 Q. Tell the ladies and gentlemen of the 3 jury who generated that document, who put it 4 together. 5 A. I did. 6 Q. You did? 7 MR. McKENNA: Excuse me. Could I 8 see the document? 9 10 5309 . 11 12 13 MR. MOTLEY: Plaintiffs' Exhibit MR. McKENNA: Judge, may we approach. (Bench conference.) MR. McKENNA: Judge, this is a 14 document that purports to summarize many of the 15 same claims he put in his article. And before 16 Mr. Motley gets going too much with it, I would 17 object to the document going into evidence if he 18 plans on moving it into evidence. 19 I object to it going into evidence 20 if he is going to move it into evidence. I also 21 would object to the witness reading from the 22 document. 23 Now, if he wants to use it to refresh HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1575 1 (Open court.) 2 BY MR. MOTLEY: 3 Q. You were the chief of the Bureau of 4 Adult Health from 1947 through 1952; is that 5 correct ? 6 A. Correct. 7 Q. Mow, how did the document in front 8 of you, Plaintiffs' Exhibit 5309, come into 9 being? How was it created, for what purpose? 10 A. I put it together. I wrote parts of 11 it, put other items together, simply to put 12 together all the salient facts about the 13 diatomaceous earth situation. 14 Q. What did you do with it once you 15 finished it? 16 A. Well, I left it with the Bureau of 17 Adult Health, and I gave it to my superior at the 18 time, Dr. Dyar, and I believe that was it. 19 Q. Was it in the nature of a report? 20 A. Yes, it was. It was a summary of 21 the whole thing putting together all the major 22 events of that period. 23 Q. Who was your superior? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 A. Robert Dyar, who was -- D-Y-A-R -- 2 he was the chief of the division of preventive 3 medical services of the California State Health 4 Department, and my bureau was a bureau under him. 5 Q. Why did you prepare a report and 6 give it to Mr. Dyar? 7 A. I simply wanted him to know about it 8 and transmit it to whoever needed to take action 9 on it. If action were, if further action was 10 necessary, I simply wanted to put the facts on 11 record. 12 Q. And did you prepare that in the 13 course of your official business as chief of the 14 Bureau of Public Health? 15 A. Oh, yes, yes, of course. It was all 16 typed there in my office, or in. our headquarters 17 there. 18 Q. You left California in 1952; 19 correct? 20 A. That's right, yes. 2 1 Q. And you said you wanted to leave 2 2 some history of what had occurred. Why did you do 23 that? Why did you want to leave a history of what HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1577 1 had occurred? 2 A. I thought it important that people 3 should know it. 4 Q. And you mentioned something about 5 action that was about to be taken or was being 6 taken. What did you mean by that? 7 A. Well, of course, by that time -- we 8 had, of course, up to this point we had been 9 discussing what further action to take on the 10 situation since the diatomaceous earth silicosis 11 episode had gotten into the public press and was 12 causing a lost of concern. 13 And one of the proposals that we 14 were discussing was to do a definitive 15 industry-wide study of the health problems of the 16 diatomaceous earth industry. That was the main 17 action that came out of this, actually, and that 18 study was done subsequently. 19 Q. I hand you a copy of an article, 20 entitled "Diatomaceous Earth, Pneumoconiosis," 21 1954 . 22 A. Yes. All right. 2 3 Q. Did you prepare that? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 A. I did. And this was a paper I 2 delivered at the National Convention of the 3 American Public Health Association in 1953 and 4 then was printed in May of 1954 in the American 5 Journal of Public Health. 6 MR. McKENNA: Your Honor, can we 7 approach the bench? 8 (Bench conference.) 9 MR. McKENNA: This is another 10 rendition of what happened at California. We 11 seem to be having a lot of other renditions and 12 aren't getting to what he has got to say, but 13 this is another article he has published about 14 this subject matter. 15 MR. MOTLEY: Judge, I should be 16 allowed to present the fact that this man 17 memorialized at or about the time of these events 18 these matters to show his credibility. 19 JUDGE MacQUEEN: I'm not sure that 20 your objection is not with some foundation. I 2 1 think at this point it's premature. Let me hear 22 the background. 23 MR. McKENNA: But they are putting HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1579 1 it up on the TV screens. 2 MR. MOTLEY: Judge, if the man had 3 written an article on asbestos disease, I could 4 show the jury the fact that he had written an 5 article on asbestos disease. 6 MR. McKENNA: I don't mind you 7 asking him whether he wrote an article about it; 8 but then to flash it up in front of the jury or 9 try to show it to them,. I think, is 10 improper. 11 JUDGE MacQUEEN: Get it qualified 12 before you put it up. It's admissibility is 13 there. 14 MR. MOTLEY: I am not trying to 15 admit it. 16 JUDGE MacQUEEN: Okay. 17 (Open court.) 18 BY MR. MOTLEY: 19 Q. Dr. Abrams, in addition to this 20 article "Diatomaceous Earth, Pneumoconiosis"? 21 A . Yes. 22 Q. And your report, Exhibit 5309, have 23 you in more modern years also published articles HERBERT ABRAMS MD -- DIRECT BY MR. MOTLEY 1580 in the literature that restate part of your experiences with Johns-Manville and Metropolitan Life in California from 1947 to 1952? 4 A. Yes. Some years later I wrote an 5 account of the episode somewhat differently, but 6 basically an account of that episode for the 7 American Journal of Industrial Medicine. 8 They were publishing at that time a series of 9 items in the history of occupational medicine, and 10 I was invited to write up that history for that 11 journal. I forget what year it was, bu.t it is in 12 my curriculum vitae. 13 Q. I want you to -- so you have, in 14 addition to testifying here today -- 15 A. Yes. 16 Q. -- in 1952 you wrote down what 17 happened; correct? 18 A . Yes. 19 Q. In 1954 youpublished in the 20 scientific literature what happened? 2 1 A. Yes. 22 Q. And you have recently published part 23 of what happened; correct? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 A. Yes. Well, the history item I 2 published two years ago, and then, of course, 3 more recently the publication that you referred 4 to earlier, the hidden history. 5 Q. Who was Anthony J. Lanza? 6 A. Well, Dr. Lanza was a physician who, 7 when I met him for the first time, I think was in 8 1947, was at that time, I believe, medical 9 director, or words, title to that effect with the 10 Metropolitan Life Insurance Company. And he was 11 an authority in occupational medicine, had 12 written one or more books and many articles. 13 And, of course, I had read much of his material 14 and had known about him before I met him. 15 Q. Who was William Shephard? 16 A. William Shephard was a physician in 17 California with offices in San Francisco whom I 18 met when I arrived there to start the job as 19 chief of the Bureau of Adult Health, about the 20 summer of 1947, and he was introduced to me in 21 more than one capacity; that is, he was a 22 prominent physician in occupational health 23 matters. He was also a vice-president of Met HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Life, and he was also an officially appointed 2 consultant to my bureau, to the State Health 3 Department and my bureau. So that from that time 4 on I had many encounters with him. 5 Q. Describe for the ladies and 6 gentlemen of the jury the nature of the 7 Johns-Manville operations at Lompoc, L-O-M-P-O-C, 8 California. 9 A. Yes. Lompoc is located in Santa 10 Barbara County, and there they have what at that 11 time was, perhaps even today, the largest deposit 12 of diatomaceous earth in the world. And the 13 production facility was essentially a mine and a 14 mill for obtaining diatomaceous earth out of the 15 earth and making it into various products for the 16 market. 17 Q. When did you first learn that there 18 was such a facility at -- Lompoc? 19 A. Lompoc, yes. 20 Q. Like cowpoke? 2 1 A. L-O-M-P-O-C. 22 Q. When did you first learn of the 23 existence of the Johns-Manville facility at HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Lompoc ? 2 A. When I arrived in California in the 3 summer of 1947. 4 Q. Did you make any effort to find out 5 anything about the operations at Lompoc? 6 A. Yes. Early on, not long after I 7 reported for work, people on my staff first told 8 me about this interesting operation. I frankly 9 had not known of diatomaceous earth. I may have 10 heard something about it, but I really didn't 11 knowing about it until I got there, and it was a 12 very interesting situation, one that I was not up 13 to that time acquainted with. 14 And I shortly thereafter made a trip 15 down with members of my staff to visit. We were 16 on very friendly terms. 17 The Johns-Manville company had a 18 part-time medical physician there at the plant, 19 he was half-time, Dr. Anderson. 20 And, of course, Dr. Reginald Smart, 21 whom I met later, was a pulmonary or lung 22 specialist in Los Angeles, who was a consultant 23 to the Manville company as well as to other HERBERT ABRAMS, MD --DIRECT BY MR. MOTLEY 1 companies making diatomaceous earth products. 2 And I met him shortly thereafter as well and had a 3 friendly relationship with both of them over a 4 period of years. 5 Q. Would you look at page two of your 6 report, please, the report that you said you /"! prepared, left with your boss? 8 A. Yes. 9 Q. In August .1947 , a combined medical 10 engineering study of the industry was proposed by 11 the Bureau of Adult Health -- 12 MR. McKENNA: Excuse me, Your Honor. 13 May we approach? 14 JUDGE MacQUEEN: Yes. 15 (Bench conference.) 16 MR. McKENNA: What are you reading? 17 Are you reading from this? 18 MR. MOTLEY: Yes. When you were 19 just last up here you said I could use it to 20 refresh his recollection. I haven't offered it 2 1 yet. 22 MR. McKENNA: Judge, I never heard 23 somebody refresh somebody's recollection by HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 reading them something. You usually ask them 2 about the events, and then if they have trouble 3 recalling it -- I mean, is he just going to read 4 this document? 5 JUDGE MacQUEEN: Yeah. That's a 6 fair objection. Just ask him. 7 MR. MOTLEY: I move the admission of 8 it, Your Honor. He said it was an official 9 report prepared in the course and conduct of his 10 business, and he left it there for the purpose of 11 allowing a recitation of the history for the 12 purpose of guiding those who come behind him. 13 JUDGE MacQUEEN: If you want to 14 build this history based on what he knew, why 15 don't you just ask him those questions? 16 MR. MOTLEY: Because I want to put 17 the report in evidence, Judge. 18 JUDGE MacQUEEN: Let's assume that I 19 receive the report. I'm not sure that I will let 20 it go to the jury when they deliberate this case 21 anyway, because it is not unlike any other 22 report. But if the witness is present, why don't 2 3 you just ask him what he knows? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 MR. MOTLEY: I would be glad to, 2 Judge. Why don't we just plod right along. 3 I would like Your Honor to -- 4 Are you keeping time? 5. JUDGE MacQUEEN: Yes. 6 (Open court.) 7 BY MR. MOTLEY: 8 Q. Dr. Abrams, do you recall whether in 9 1947 any study of the diatomaceous earth industry, 10 and particularly Lompoc, was proposed by you and 11 others in the Bureau of Adult Health? 12 A. Yes. In about 1947, shortly after I 13 came and learned about the situation, I proposed 14 a definitive study be done, and members of my 15 staff who had already been in touch, had been 16 there before, told me that Dr. Lanza had assured 17 them that -- 18 MR. McKENNA: Excuse me, Your Honor. 19 Hearsay. 20 JUDGE MacQUEEN: I am going to allow 21 it, not for the truth, but to show why he went 22 about the process of doing whatever it was he was 23 going to do. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY BY MR. MOTLEY: Q. Will you repeat what you said, please, sir? A. That I was assured by Dr. Lanza 5 through members of my staff that no study was 6 necessary, that they had adequate staff 7 themselves, they had their own industrial 8 hygienists, their own physicians, and that the 9 situation was well under control. Essentially 10 that was the message I got. 11 I should add, if I may, I had one 12 other comment to that, and that is that I was 13 told at the very same time by Drs. Anderson and 14 Smart that they were going to write this up for 15 publication because it was a fascinating story, 16 as anybody who has ever encountered this would 17 agree, and that they had autopsy material and 18 Saranac Lake had done studies on it, and so on, 19 and they were soon going to write it up for the 20 medical literature. 2 1 Q. Write it up meaning publish it? 22 A. Publish it in the medical 23 literature, yes. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q* At some point in time, sir, did you 2 have a meeting at the Mark Hopkins Hotel in San 3 Francisco? 4 A. Yes, I did. It was around that 5 time. I would have to check it to be sure. I 6 think I mentioned it in here somewhere. 7 Do you want me to describe that? 8 Q. Yes, on page two, I believe. But you 9 can't read it. Just refresh your memory. 10 MR. McKENNA: Your Honor, they're 11 doing it again. 12 JUDGE MacQUEEN: He can look at it 13 to refresh his recollection. 14 MR. McKENNA: I don't mind him 15 refreshing his recollection, but I would like to 16 hear his recollection first and have him say he 17 can't recall the event. 18 JUDGE MacQUEEN: He said he needed 19 to recheck for the date. He can do that. 20 MR. McKENNA: I don't mind him doing 21 that either, but I would like his recollection. 22 He seems to be reading the document. 23 JUDGE MacQUEEN: Go ahead, Doctor. HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1 You can tell us when this was. 2 THE WITNESS: It is almost a half a 3 century old, and I need to refer to my notes on 4 these things. 5 JUDGE MacQUEEN: Go right ahead. 6 THE WITNESS: Thank you. 7 A. Well, I can quote this. During the 8 same period we and, I and others had been led to 9 believe that the situation was under control, 10 there were no new cases arising. 11 Q. Why no new cases? 12 A. All the cases we had heard about 13 were old cases, people who had died or were still 14 perhaps living but had contracted the disease 15 years ago. 16 And I was invited to a meeting which 17 occurred at the Mark Hopkins Hotel in San 18 Francisco. 19 Q. Is that where they have that 20 world-famous Sunday brunch? 2 1 A. I think so. They had a beautiful 22 rug in the lobby and all of that. It was a very 23 nice hotel on top of a hill. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q. What did you have to eat that day, 2 by the way? 3 A. I will have to look at my notes to 4 find out. 5 Q. I thought maybe you had some eggs. 6 A. Anyway, it was on an occasion when 7 Dr. Lanza was visiting with management 8 representatives and they were talking about 9 promoting a therapy or a treatment for 10 pneumoconiosis, silocosis, of aluminum powder, 11 which was an idea that was being promulgated 12 during those times. It turned out to be not 13 effective, but, anyway, they were talking about 14 it then. 15 And I asked the management people at 16 the lunch table there -- 17 Q. You mean Manville? 18 A. Yes, the Johns-Manville management 19 people -- whether they had ever had a 20 compensation claim for the disease in California 2 1 and whether any such claim had been paid. 22 And the Johns-Manville man said no 23 compensation award had ever been made by his HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1591 1 company. 2 There was also a Great Lakes Carbon 3 Corporation man, they were the second leading 4 company producing diatomaceous earth, and he said 5 that only one claim had been paid recently, and he 6 felt that this was an unjust claim. 7 MR. McKENNA: Your Honor, can we 8 approach again? 9 JUDGE MacQUEEN: Yes. 10 (Bench conference.) 11 MR. McKENNA: He is reading the 12 document to the jury. We were following, and he 13 is almost reading it verbatim. Why can't he 14 testify to his recollection, and then if he says 15 I forgot a date, then he can refer to the 16 document. Why just -- 17 JUDGE MacQUEEN: He said it is 18 almost a half a century ago, I need to refer to 19 my notes to give the testimony. That's enough, 20 isn 't it? 21 MR. McKENNA: I don't think it is. 22 JUDGE MacQUEEN: Does he have to 23 make a mistake first? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 MR. McKENNA: No. They are putting 2 him up here to testify about these events, and I 3 would like to hear his testimony. Now, if he 4 says I forgot what happened at that meeting, okay 5 6 JUDGE MacQUEEN: That is what he said 7 essentially. 8 MR. McKENNA: Let him read the thing 9 and then testify about it. He is reading the 10 words to the jury. 11 MR. MOTLEY: I have never in my life 12 anywhere, anywhere in 37 states where I have tried 13 cases heard such a ridiculous objection. You 14 wouldn't allow an orthopedist to come up here and 15 read from his medical records to refresh his 16 recollection? 17 JUDGE MacQUEEN: I am going to allow 18 it. 19 MR. McKENNA: If you want to 20 stipulate that he can't recall anything and he is 2 1 just going to read the document, let's do that. 22 (Open, court.) 23 THE COURT: Go ahead. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1593 1 MR. MOTLEY: This is Plaintiff's 2 Exhibit No. 5301. I move its admission, 3 Your Honor. It's the one I showed you. 4 THE COURT: This is not a 5 preadmitted document? 6 MR. MOTLEY: It was not 7 preadmitted. I believe it was produced by 8 Metropolitan. We didn't want to get into these 9 diatomaceous exhibits until Your Honor had a 10 foundation from the witness. 11 MR. McKENNA: Since Mr. Motley made 12 the statement in front of the jury, that was not 13 produced by Met Life. 14 THE COURT: Is your question about 15 its authenticity? 16 MR. McKENNA: No, Your Honor. 17 THE COURT: Okay. It will be 18 received. 19 MR. MOTLEY: Mr. Parker is still 20 here if there is 2 1 MR. McKENNA: I rese rve my objection 22 on relevance and hearsay and 403? 23 THE COURT : Abs olute i y - HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 BY MR. MOTLEY: 2 3 Q. Now, Doctor, this is an old letter 4 on Metropolitan Life Insurance Company 5 letterhead, February 7th, 1952. 6 Show who it is to: Dr. Lanza, 7 chairman, Institute of Industrial Medicine, 8 New York University. 9 Show who wrote it: W. P. Shepard, 10 third vice president, signed Bill. 11 Are those the folks you were talking 12 about earlier? 13 A. Bill Shepard, yes. William Shepard. 14 Q. Now, up, please. Had you ever seen 15 this until last year or two? 16 A. That's right, I never saw this until 17 many, many years later after the whole thing was 18 over. 19 Q. All right. And this is about the 20 diatomaceous earth situation we havebeen talking 21 about? correct? 22 A. Exactly. 23 Q. "Unfortunately, we shall have to do HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1595 1 without Halverson's skilled guidance." Who is 2 Halverson, do you remember? 3 A. Yes. Wilton Halverson was the 4 director of the California Department of Health 5 Services. He was the top person. And I think he 6 was sick at the time. So he was not available. 7 Q. All right. "Until after the 8 February 26th meeting. However, Malcolm 9 Merrill" -- who is that? 10 A. Malcolm Merrill was deputy director. 11 Q. "Is still acting director and he is 12 not only able but perhaps even more discerning 13 than" 14 A . Hal Halverson. 15 Q. -- "than Hal in a situation of this 16 kind. I am going over to see him this afternoon 17 to be sure he is fully aware of the nuances of 18 the situation so that he can keep Abrams in 19 l i n e ." 20 A. Very flattering to.me. 21 Q. Would you be the Abrams they wanted 22 to keep in line? 23 A. I'm the one, apparently. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q. Boy, you old trouble maker you, what 2 were you up to back then? What was going on in 3 February of 1952 that would cause Mr. Shepherd to 4 want to keep you in line? 5 MR. McKENNA: Judge, could we have 6 one other paragraph read of it? 7 MR. MOTLEY: I'll read the whole 8 thing. Which one? 9 MR. McKENNA: The third one. 10 MR. MOTLEY: The third one. 11 MR. McKENNA: Yep. 12 MR. MOTLEY: Focus in on that one. 13 "Abrams just telephoned to say that 14 if the industry insists" -- 15 A. He would be willing. 16 Q. -- "he would be willing to do the 17 survey jointly with the Industrial Hygiene 18 Institute. I ran across him at lunch at Stanford 19 yesterday and subtly put a bug in his ear. It 20 might not" -- I can't read that -- 21 A. I can't make that out. 22 MR. McKENNA: That he might not be 23 able to get the full and willing cooperation HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 of -- 2 Q. -- "he might not be able to get the 3 full and willing cooperation of the industry on 4 his own." Is that what it says? You have a 5 better copy. 6 MR. MCKENNA: I can't read that 7 part. 8 BY MR. MOTLEY: 9 Q. Okay. Next, please. 10 "He blustered a bit and maintained 11 that it was his legal prerogative, but apparently 12 after thinking it over and talking with Merrill, 13 he changed his mind." Okay. 14 Now, generally what was going on 15 back in the early winter of 1952 that would cause 16 Mr. Shepard to want to keep you in line? 17 A. Yes. Well, what was happening was 18 simply, you see, the whole diatomaceous earth 19 situation exploded in the media, it was in the 20 newspapers and radio and so on and, of course, it 2 1 had been set off by the original article in 22 Search Magazine, which was the publication of the 23 California Tuberculosis and Health Association. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 That was the old name for what is today called 2 the California Lung Association, the Christmas 3 Seal people. 4 Anyway, so this was in the public 5 media at the time, was causing a furor, and we in 6 the health department along with Dr. Shepard, so 7 on, were talking about what should be done. 8 And we were mainly talking about the 9 necessity of doing a definitive study of this 10 problem so as to establish all the facts and get 11 all of the facts on the table for the public, the 12 working people, the industry and so forth. 13 And that's what we were talking 14 about at that time. 15 Q. Now, you say there had been an .16 article written about this Johns-Manville 17 facility? 18 A. What was that question? 19 Q. You said before this "keep you in 20 line" letter was written, there had been an 2 1 article published? 22 A. Oh, yes. Well, quite a few 23 articles. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q. I'm going to hand you something. 2 Tell me if this is from your original files? 3 A. This is what started it off. This 4 was the Search -- the cover of Search Magazine, 5 and the title of the article was "Death By Dust," 6 and this is an aerial picture of the 7 Johns-Manville diatomaceous earth deposits. 8 Q. And is that what, as you say, caused 9 a furor? 10 A. Yes, that's what started it. 11 Then, of course, the newspapers and 12 all picked it up from that article, and it kept 13 going for quite a while. 14 Q. Now, are you familiar, personally 15 familiar with this "Death By Dust" study article? 16 A. Oh, yes . 17 Q. Tell us how you personally are 18 familiar with it? 19 A. Well, the writer of the article at 20 that time, a young man named Robert Goe, G-o-e, 21 came to me -in his role as a writer for the 22 magazine, which was the publication of the 23 California Tuberculosis and Health Association. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 And he was interested in writing things about 2 problems of interest having to do with the 3 lungs. 4 Since they were a lung association 5 and tuberculosis at that time was declining in 6 incidence -- it had been, of course, the No. 1 7 cause of death in the U.S. in the early part of 8 the century, but it was beginning to decline -- 9 they were looking for other ideas. 10 So I told him about this very 11 interesting industry in California, the 12 diatomaceous earth industry, which even today 13 most people have never heard about. And he was 14 very interested. 15 And I suggested who he might call 16 on, go visit the plant and so on. I had been 17 there a number of times, I knew all the people, I 18 gave him an introduction to those people. 19 And so then he subsequently did pay 20 a visit down there to get information about a 2 1 foreign article. And he -- shall I -- 22 Q. Well, let me ask you this. 23 A. -- talk further about it or what? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q* Well, why did this article, "Death 2 By Dust," cause a furor? 3 A. Well, of course, the headline alone 4 is enough to disturb people, I think. But I 5 think the evolution of it was interesting, and I 6 have to go into that to really -- 7 Q. Are you personally knowledgeable 8 about the evolution of this article? 9 A . Oh, yes. Yes. 10 Q. All right. Please tell us. 11 A.. Well, I'll try to make it brief. My 12 thought in referring him to that subject was that 13 essentially it was an interesting problem, it was 14 a dust that used to cause silicosis. 15 Remember that in 1932, there had 16 been a big survey done and published by 17 Dr. Leggie and others in California in which they 18 examined all the workers and found an incidence 19 of silicosis. But that was many years early. 20 Q. 1932? 2 1 A . '32, right. 22 Q. Twenty years earlier. 23 A. Right. HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1602 1 Q. In the meantime, Lanza told you no 2 new cases and the Manville pe ople told you no 3 Workers' Compensation. 4 A . Exactly. When I came, I became 5 aware 6 M R . McKENNA: Objection, Your Honor. 7 THE COURT: Sustained. 8 BY MR. MOTLEY: 9 Q. Excuse me, it was sustained. 10 Who told you there were no new cases 11 of silicosis out of that Manville plant? 12 MR. McKENNA: Objection. Leading, 13 asked and answered. 14 THE COURT: Yeah. He's already 15 answered that. 16 A. Well, my information on no new cases 17 occurring came from Drs. Anderson and Smart who 18 were on the scene there -- 19 MR. McKENNA: Asked and answered. 20 A. Anderson was plant division, and 2 1 Smart was a consultant. 22 THE COURT: Which is what he 23 testified to HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 A. And of course, when Dr. Lanza came 2 out, he simply supported that and repeated that. 3 So that I was given the definite impression that 4 it was a problem that they used to have, but was 5 well under control. Manville being a huge 6 company, they had their own industrial hygienist 7 who did dust counts, they had their own doctors 8 and so forth, they had all the resources to 9 control it. 10 I'm trying to remember where I was 11 now. Talking about -- 12 Q. I'm just trying to not take all day 13 to do this. 14 A. I understand. 15 Well, very quickly, the evolution of 16 this, Goe -- I then told Goe about it, I said, 17 Look, it's an interesting story you ought to 18 write up because in essence it's a success story, 19 it's a story of how a serious occupational 20 disease was controlled, and it was a disease 2 1 affecting mainly the lungs and all that. So it 22 fitted in with their interest. 23 Q. Why did you tell him it had been HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 controlled and was a success story? 2 A. Because I was given that impression 3 by the authorities of Manville including their 4 consultants and all that. 5 Q. Go ahead. 6 A. He went down there, and he was 7 impressed with an atmosphere of secrecy. 8 He didn't get past the front 9 office. They didn't allow him to see the plant, 10 all that. 11 And he began to hear that there were 12 cases of silicosis and silicotuberculosis in the 13 local hospital and so on. 14 MR. McKENNA: Hearsay. 15 THE COURT: Sustained. 16 BY MR. MOTLEY: 17 Q. Excuse me, Doctor, you can't tell 18 the jury what somebody else told you. But let me 19 ask you this. Is all of this in this magazine 20 article? 21 A. I think so essentially. 22 MR. McKENNA: I don't believe it is, 23 Your Honor. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1605 1 A. That's in there. I would have to 2 reread it to make sure of every word. 3 Q. Is it in your report? 4 A. Yes , I believe so. It's in there. 5 Q. All right. 6 A. But the main point I'm getting at is 7 when he got back, he did write an article -- and 8 I have the galley proof of it somewhere. He did 9 write an article which was innocuous, not this 10 article. He wrote an article which was 11 innocuous. 12 He told the interesting story of how 13 diatomaceous earth originated from these 14 one-celled animals and the skeletal remains and 15 all that business, and the useful uses of 16 diatomaceous earth and all of that. 17 And when he came back, he read that 18 article to Dr. Shepard. 19 Q. Of Met Life? 20 A. Of Met Life, yes. And Shepard 21 persuaded him not to write it saying -- 22 MR. McKENNA: Objection, hearsay. 23 THE COURT: Sustained HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 A. Now, that story is in here too. 2 Saying to him essentially why don't you write -- 3 MR. McKENNA: Judge, can we approach 4 the bench? 5 MR. MOTLEY: Your Honor, this is in 6 a magazine that was published. He can rely on 7 the magazine. 8 (At sidebar:) 9 MR. MOTLEY: It's all in his 10 report. 11 MR. McKENNA: Judge, the bottom line 12 is he's obviously testifying about hearsay 13 matters. The fact they are in his report doesn't 14 remove the fact that they are hearsay. 15 And I haven't read this article in a 16 while, but it's my recollection that it doesn't 17 recite all of these matters. 18 THE COURT: It does not? 19 MR. McKENNA: It does not. Now, if 20 it does, I would like Mr. Motley., who is offering 21 the testimony, to show me where it says it. 22 THE COURT: The fact it was printed 23 in a magazine, what difference does that make? HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1610 1 MR. MOTLEY: Okay. 2 BY MR. MOTLEY: 3 Q. Doctor, it's getting late in the 4 day. The jury has been patient with us. 5 A. Sure. 6 Q. Le.t's get to the bottom line; okay? 7 A. All right. 8 Q. As a result of what was published in 9 this article, did you come to understand or learn 10 that what you were told that there were no new 11 cases was true or false? 12 MR. McKENNA: Leading, Judge. 13 THE COURT: Overruled. 14 A. I came to learn it was false. 15 Q. You were a public health official 16 and you were told this, and it was false? 17 A. That's right. This article was an 18 eye-opener to me, and others on my staff as well, 19 just as it was to the public. 20 Q. Did you come to understand that what 2 1 you were told by the Manville employees, that 22 there were no Workers' Compensation awards made, 23 was that true or false? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1611 1 A. False, false. 2 Q. Did you, Herbert Abrams, personally 3 verify, try to verify some of what was in this 4 article? 5 A. I did. Subsequently I went down to 6 the Industrial Accident Commission files and 7 painstakingly found something over 30 cases, 8 records of Workers' Comp claims. 9 Q. So instead of zero, it should have 10 been 30? 11 A. More than that actually. 12 Q. Was there-a law in California, 13 Doctor, at the time that required the employer to 14 report the existence of Workers' Comp claims? 15 A. Yes, that was another thing. The 16 law was simply that any injury on the job which 17 caused absence from work beyond one day had to be 18 reported to the State Department of Industrial 19 Relations, Division of Labor Statistics, by both 20 the employer and the physician attending the 21 worker. 22 And up to that point, there had 23 been, I think, only one or two cases. But after . *- HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1612 1 the article came out and the publicity, two or 2 three more were reported. 3 Q. Now, Doctor, did you make a proposal 4 to anyone after you found out these matters that 5 you have said you found out that any kind of 6 study be done in 1952? 7 A. Oh, yes. As I mentioned earlier, I 8 proposed that a definitive study of the industry 9 be made. 10 Then there was discussion as to who 11 should do it. And as I think we mentioned, 12 Dr. Shepard at one point suggested the Industrial 13 Hygiene Foundation. But since they are an 14 industry-supported organization, there was 15 objection to that. 16 Q. By whom? 17 A. Well, not only I objected, but 18 Dr. Malcolm Merrill, the deputy director, State 19 Health Department, objected. We felt it had to 20 be an unbiased study. While we were casting no 21 aspersions on the Industrial Hygiene Foundation, 22 since they were totally supported by industry, we 23 didn't think it would be appropriate. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Then the question came up of, well, 2 could they participate in it partly along with 3 the State Health Department, and various 4 combinations were proposed. 5 And finally I myself suggested we 6 call in the United States Public Health Service 7 as an impartial governmental agency to do the 8 study, and that ultimately was done and a report 9 on that was made some years later. 10 Q. You told the jury earlier that you 11 had been led to believe that an article by 12 Dr. Smart and Dr. Anderson was going to be 13 published on their experience at the Lompoc 14 plant? 15 A. Yes. They told me a number of times 16 that they were working on it, and one of these 17 days, months, they would report because they had 18 a lot of clinical and pathological material on 19 the cases that they had seen. 20 Q. When, if ever, was that published? 21 A. I think that was published 22 finally -- I have forgotten. 1953, perhaps. I 23 don't remember. We have the article somewhere HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1614 1 here. I believe I mentioned it in here too. 2 No. It wouldn't be in here. It was 3 published, though, around that time. 4 Q. Would you look at your report again, 5 sir. 6 A. Yes. 7 Q. Do you see"VI"? 8 A. Okay. 9 Q. What is tha.t called? 10 MR. McKENNA: Objection, Your Honor, 11 can we approach?- 12 (At sidebar:) 13 THE COURT: Is that the conspiracy? 14 MR. MOTLEY: Fraudulent concealment. 15 He went and looked at the records and found the 16 testimony. I can lay a further foundation. But 17 I ain't asking him the question. The question 18 I'm asking is what the name of it was. 19 MR. McKENNA: Judge, the only reason 20 why he's asking this question is to get this man 2 1 to say "fraudulent concealment" in front of this 22 jury. 23 He's not an expert on fraud, he's HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1618 1 appropriate foundation, what conclusions he 2 reached about it. 3 MR. MOTLEY: Okay. 4 (End of sidebar.) 5 BY MR. MOTLEY: 6 Q. Do you have the page that begins 7 with paragraph "VI"? 8 A . Yes. 9 Q. Let me make sure we are on the same 10 page . 11 A. "VI"? 12 Q. Yes. Now, sir, did you undertake to 13 look at the records of Workers' Compensation 14 claims arising out of the diatomaceous earth 15 facilities ? 16 A. I did. 17 Q. Okay.And tell us what was there? 18 I particularly refer you to the claim of 19 Manuel Gonzalez? 20 A. Okay. Well, this is written up in 21 here . 22 Q. Don'tquote from what's written up. 23 Just tell us what you did, first. HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1619 1 A. Oh, all right. It's an excerpt from 2 the claim. 3 In those days, there was a 4 stenographic report of every claim before the 5 Industrial Accident Commission that was 6 contested. 7 Q. You mean like what these folks are 8 doing? 9 A. Yes, a court reporter, and they were 10 typed up. Of course, this was long before 11 computers and all. And they were filed by card 12 file, and you had to go through it manually in 13 the offices of the Industrial Accident Commission 14 in Los Angeles. 15 And I found something like 30-some 16 cases having to do with diatomaceous earth 17 claims. And this was one of them. 18 And in this particular one, the 19 interesting point was -- did you want me to 20 describe them, what I found in that case? 21 Q. Let me ask it this way. This was 22 out of the diatomaceous earth facility; correct? 23 A . Yes. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY Q. And this was the testimony of Dr. Smart? A. Dr. Smart had been the examining .4 doctor in this particular case. 5 Q. Okay. 6 A. For the company. For the insurance 7 company, I should say. 8 Q. And you remember we talked earlier 9 about the public health principle of telling a 10 worker that something he works with can hurt him? 11 A. Yes. 12 Q. And you also said that as a public 13 health principle, if he's got a disease, you 14 should tell him that too? 15 MR. McKENNA: Leading, Your Honor. 16 MR. MOTLEY: I'll rephrase it. 17 THE COURT: All right. 18 BY MR. MOTLEY: 19 Q. Is there a public health policy, 20 sir, if a man is diagnosed with asbestosis or 2 1 silicosis, what is the public health policy in 22 regard to telling him? 23 A. Well, it's not only a public health -.T V " ' HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 policy, it's a good -- it's just a health policy, 2 a medical policy that if you diagnose something 3 in a patient, you should tell the patient what it 4 is. There is no question about that. It goes 5 back to antiquity. 6 Q. Now, as a result of what you found, 7 did you determine whether or not Dr. Smart, 8 Johns-Manville's consultant, exercised good 9 public health policy if he found silicosis in 10 those workers or bad public health policy? 11 A. No. In that transcript of that 12 case, Dr. Smart is quoted as saying that he as a 13 matter of policy did not tell a worker what he 14 found on his examination, which was a physical 15 exam with a chest x-ray and so forth, he just did 16 not inform them, but he did inform the company in 17 this case, you see. He informed the company what 18 he found, but did not inform the worker. 19 Q. Now, Doctor, in addition, when you 20 were looking at this particular claim or other 2 1 claims, did you find that Dr. Smart's policy had 22 stirred up some interest by others? 23 MR. McKENNA: Leading, Judge. HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1622 A. No question about it -- THE COURT: I'll sustain the 3 objection. 4 Q Did you find anything else of 5 interest in that file, sir? 6 A. Well, the other thing of interest 7 was the insurance carriers who were present at 8 this hearing, the insurance companies, I have 9 forgotten their names, they then accused the 10 Dicalite or the Great Lakes Carbon Company, in 11 this case they were the defendants -- there were 12 two defendants actually, Great Lakes Carbon and 13 Johns-Manville. These are insurance carriers. 14 MR. McKENNA: I'm sorry to 15 interrupt. 16 THE COURT: Just a second. 17 MR. McKENNA: I'm sorry to interrupt 18 the witness. Can we approach on this since he's 19 talking about another company now? 20 MR. MOTLEY: He just said and 2 1 Johns-Manvi1le. 22 MR. McKENNA: Can we approach? 23 (At sidebar:) HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1623 1 MR. McKENNA: Here is the paragraph 2 that is apropos. It involves Dicalite apparently 3 and other companies where the insurance carrier 4 and Workers' Comp carrier claimed there was 5 fraudulent concealment from them because they 6 hadn't disclosed to them the condition when the 7 guy had this condition from 1940 or something and 8 went on coverage. That has nothing to do with 9 us. It has nothing to do with the issues in this 10 case. 11 MR. MOTLEY: Excuse me, I'm agreeing 12 with you. 13 MR. McKENNA: Excuse me. Can I 14 finish? 15 MR. MOTLEY: I can link it up with 16 them 17 (End of sidebar.) 18 BY MR. MOTLEY: 19 Q. Doctor, how many more of these 20 reports did you say you found? Did you say 37 or 21 30? I can't remember exactly how many you said. 22 A. I would have to refer to my own 23 report to get the exact number. I don't have HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1624 1 that here, but you may have a copy of it. My 2 publication, the American -- oh, here it is. I 3 have a copy of it right here. I will show you in 4 a minute. 5 I was able to find 32 claims for 6 compensation for alleged diatomite 7 pneumoconiosis -- diatomite is an abbreviation 8 for diatomaceous earth -- which came before the 9 commission between 1930 and 1951 inclusive. 10 Now -- 11 Q. I want to be sure that we are not 12 misleading anybody here. There was a study done 13 of the diatomaceous earth facilities in the early 14 '30s; correct? 15 A. That's right. 16 Q. And what you found to beuntrue was 17 the assertion that they had everything under 18 control in 1950? 19 A. Yes. That's right. 20 Q. All right. And in fact, there were 2 1 cases continuing to occur? 22 A. Yes, that's right. 23 MR. MOTLEY: Your Honor, did you say HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY you wanted to reserve so we don't take up the jury's time the admission of this report? THE COURT: Yes. 4 BY MR. MOTLEY: 5 Q. Doctor, explain to the jury how you 6 reacted to -- personally to Dr. Shepard's -- 7 first of all, how would you describe 8 Dr. Shepard's reaction to that "Death By Dust" 9 article? 10 A. Well, he was very angry. He accused 11 the writers of yellow journalism. He threatened 12 to fire -- have them fired, and he told me that 13 over the telephone. 14 Q. This is Bill Shepard of Met Life? 15 A. Of Met Life, yes. That he would 16 have the editor of the journal fired, it was 17 yellow journalism and that kind of thing. 18 Q. In fact, sir, is there not a copy of 19 a letter he wrote -- Mr. Shepard wrote to the 20 Tuberculosis Society in your report? 21 A. Yes. That's in there too. 22 Everything is in there. 23 Q. After the article, "Death By Dust, HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 what is the newspaper called in San Francisco? 2 There are two of them, I think. 3 A. Well, the San Francisco Chronicle is 4 the morning paper, and I have forgotten the name 5 of the afternoon paper. 6 Q. Were there any articles published by 7 the San Francisco Chronicle? 8 A. Oh, yes. Nathan Hale, who was a 9 reporter for the Chronicle, wrote a series of 10 articles, the heading of which was a story of a 11 dangerous dust, something like that. I have 12 clippings of it somewhere. I'm not sure if they 13 are in here or not. 14 Q. Let's turn to Dr. Lanza for a 15 moment. 16 A. Sure. 17 Q. Did you ever have conversations with 18 Dr. Lanza about your calling the disease at 19 Lompoc silicosis? 20 A. Yes. On one of his trips, he and I 2 1 and half a dozen other professionals in the field 2 2 were sitting around sort of casually, socially 23 discussing this. And I referred to the disease HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1627 1 as diatomaceous earth silicosis. 2 And he became suddenly very angry, 3 pounded the table and in very loud voice said, 4 That's not silicosis. That's pneumoconiosis. 5 And I could only infer one thing 6 from that explosion, because silicosis is exactly 7 what it is, it's silica, and it's called that 8 today as well as those days. 9 But he insisted on my avoiding the 10 use of the term silicosis. 11 Q. As a result of the newspaper 12 articles and the San Francisco Chronicle article, 13 did things kind of get activated at the Lompoc 14 plant ? 15 A . O h , yes . 16 Q. Tell the jury what happened. 17 A. Well, everybody was disturbed by it 18 and feeling that something should be done, and 19 then we began to have meetings about developing a 20 definitive study, as I mentioned. 21 Q. And in your report, do you outline 22 in some detail what you proposed be done to try 23 to help the workers at Lompoc? HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1628 A. Oh, one other important thing was 2 that the union there went out on strike, and 3 health protection was one of their major issues. 4 They had some wage issues as well, but health 5 protection became a major issue at the same 6 time. So that also was a part of that picture. 7 It was quite a stormy period for a while. 8 Q. My question, sir, is did you make a 9 recommendation to your officials, your superiors 10 and detail how you thought a study should be 11 done ? 12 A. Yes. 13 Q. And is it contained in your report? 14 A. I think it is, if I -- 15 Q. I know it is . 16 A. Here it is. "VII, Prospectus for a 17 Fundamental Industry-Wide Study on the Health 18 Aspects of Diatomaceous Earth." And I outlined 19 what should be in the study and all that, and I 20 gave a little history of the disease and so on. 2 1 MR. MOTLEY: Your Honor, you 22 admitted earlier today Exhibit 199. 23 MR. McKENNA: Judge, can we HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1629 1 approach? 2 (At sidebar:) 3 MR. McKENNA: Judge, this is a 4 document of January 15, 1935 , this is before the 5 man got out of medical school. He has nothing to 6 do with this , to my knowledge. I don't 7 understand where he's going with this. 8 MR. MOTLEY: Your Honor admitted 9 it. I think I am entitled to ask him his 10 opinions as a public health specialist about 11 that, of the statements made in there. 12 THE COURT: Like? 13 MR. MOTLEY: Oh, I would ask him to 14 pick out the two statements, because somehow my 15 copy I looked at last night has gotten yanked 16 from my notes. 17 MR. McKENNA: "The menace of 18 ambulance-chasing lawyers in combination with 19 unscrupulous doctors." 20 MR. MOTLEY: That's not one of them. 21 MR. McKENNA: That's not one of 22 them? 23 THE COURT: Go ahead. I'm going to HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1630 1 allow it. 2 (End of sidebar.) 3 BY MR. MOTLEY: 4 Q. Doctor, I want to turn your 5 attention to the Industrial Hygiene Foundation 6 for a moment. Exhibit 199 you have in front of 7 you there -- can you show the first page, 8 please? -- is dated January the 15th, 1935. 9 Now, can you show who was in 10 attendance? Johns-Manville was there. Dr. Lanza 11 from Met Life was there. 12 MR. McKENNA: Mr. Motley, why don't 13 you read the second paragraph on page one and 14 then read everybody who was there? 15 MR. MOTLEY: Your Honor, I'm glad to 16 read the whole thing, but every time I try to 17 read something, we run up to the bench, so I'm 18 kind of afraid to read anything. I'm getting 19 winded running up to the bench. 20 THE COURT: Go ahead. 2 1 MR. McKENNA: Well, maybe if you did 22 it right. 23 BY MR. MOTLEY: f ---v HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1631 1 Q. Do you see that, sir, that 2 Dr. Lanza, and there were all kinds of other 3 people there? 4 A. Yes, I see it. Yeah. 5 Q. And it says, "For example, only two 6 forms of dust, namely, free silica and asbestos, 7 are definitely known to produce disabling 8 fibrosis of the lung." When you began practicing 9 in California in 1947, was that true? 10 A. Well, there are and there were other 11 dusts, but they were not as prominent. Asbestos 12 and silica were considered the most important. 13 But there is cotton dust, byssinosis and coal 14 dust, of course, coal workers pneumoconiosis. 15 That was known at that time too, but it wasn't -- 16 didn't receive as much publicity in the 17 United States at the time. 18 Q. Are you familiar, sir, with the 19 history behind the Industrial Hygiene Foundation? 20 A. Somewhat. This is part of it, of 21 course, sure. 22 Q. Do you know what caused the 23 formation of the Industrial Hygiene Foundation? HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1632 1 A. It was concern about the lawsuits 2 that they were beginning to get for 3 pneumoconiosis, silicosis, asbestos disease and 4 so on, and they thought they ought to get 5 together and do something about it. 6 MR. McKENNA: Objection, hearsay, 7 Your Honor. He's reciting the contents of the 8 documents in a summary fashion that's 9 inaccurate. 10 MR. MOTLEY: Your Honor, that is 11 contained in that document. 12 THE WITNESS: That's just history. 13 THE COURT: Overruled. 14 BY MR. MOTLEY: 15 Q. In fact, it's in this document, 16 isn't it, the 1935? 17 A. Yes . 18 Well, this meeting was convened on 19 December 12th or a letter was sent out December 20 12, 1934. 21 Q. Worried about lawsuits and menaces 22 what does the next page show? Expert testimony 23 and they suggested eliminating the jury? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY MR. McKENNA: Judge, if I could request that if we are going to read from the document, we read from it rather than have 4 Mr. Motley just pick out a few words here and 5 there. I think under the rule of completeness, 6 he ought to be reading the document to the jury. 7 MR. MOTLEY: Let's read the whole 8 document, now. 9 MR. McKENNA: He doesn't have to 10 read the whole document. 11 MR. MOTLEY: I'll flip you for which 12 you want me to do. 13 THE COURT: Hold on. If there is 14 some matters that you want read for completeness, 15 you need to tell him what they specifically are. 16 MR. McKENNA: All I'm objecting to, 17 Your Honor, he can read any part of it he wants, 18 but what I want him to do is if there is a 19 sentence he wants to read, let's read the whole 20 sentence, let's not take two words out, flash 21 them in front of the jury and -- 22 THE COURT: It's a fair request. 23 MR. MOTLEY: The reason I didn't, he HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 came up a minute ago and objected to me reading 2 that part. 3 THE COURT: You don't have to argue 4 your case now. Instead of picking out words, 5 read a whole sentence. 6 MR. MOTLEY: I got permission to 7 read the whole thing. 8 Doctor, look on page two that they 9 were worried about. 10 "It appeared that among the problems 11 common to all industries were the following: 12 "The menace of ambulance-chasing 13 lawyers in combination with unscrupulous 14 doctors. The uncertainties surrounding diagnosis 15 of any of the various forms of pneumoconiosis are 16 so many that a question of facts is presented in 17 every case. Expert testimony can be produced by 18 both plaintiff and defendant and it is for the 19 jury to decide whose experts are correct in their 20 interpretations. In making this decision, the 2 1 jury is not likely to favor the opinion of the 22 experts produced by the employer. 23 "The desirability of making various HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1635 1 dust diseases compensable under properly drawn 2 Workers' Compensation laws. One of the speakers 3 stated that 'the strongest bulwark against future 4 disaster for industry is the enactment of 5 properly-drawn occupational disease legislation.' 6 Such legislation would eliminate the jury and 7 empower a medical board to pass upon the 8 existence of the disease and the extent of the 9 disability; eliminate the shyster lawyer and the 10 quack doctor since fees would be strictly limited 11 by the law; and permit the correcting of initial 12 mistakes in the making of awards by providing for 13 hearings to reduce or eliminate awards if proof 14 could, be adduced that the claimant was not 15 disabled or that the extent of his disability had 16 been overestimated. 17 "Problems of ventilation, dust 18 collecting and elimination, and respiratory 19 devices. 20 "The establishing of standards for 21 dust counting and particle size determination, 22 for the taking of x-rays for diagnostic use, and 23 for the interpretation of the markings on the HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1636 1 films so produced. 2 "At the close of the discussion, a 3 Mr. Kurtz, vice president of the American 4 Refractories Corporation, made a motion that 5 Mr. William P. Yant, chairman of the meeting, 6 appoint a nominating committee who would nominate 7 a group of individuals to serve as a committee 8 for the formulation of ways and means to bring 9 about effective cooperation of some character 10 between the various industries for seeing and 11 combatting those 12 MR. McKENNA: Meeting. 13 MR. MOTLEY: -- "meeting and 14 combatting those" -- 15 MR. McCONNELL: Phases. 16 MR. MOTLEY: "Phases"? 17 MR. McKENNA: Phases. 18 MR. MOTLEY: -- "of the dust problem 19 common to all. This motion was carried and a 20 nominating committee appointed which retired, and 2 1 upon returning presented to the meeting the names 22 of seven individuals to act as such committee. 23 "No other names having been placed HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1637 1 in nomination, the following were elected to act 2 as the committee and report back to the various 3 industries and groups represented at the meeting 4 or to whom the invitation had been originally 5 extended." 6 Then it's got the list of names. I 7 can't pronounce that name, no way. Why don't you 8 look at the names. 9 MR. McKENNA: Vandiver Brown. 10 MR. MOTLEY: Vandiver Brown 11 representing asbestos. 12 "I explained to the other members of 13 the committee that I had been sent to the meeting 14 solely as an observer" -- 15 MR. McKENNA: Could you read the 16 names you skipped over, please? 17 THE COURT: He left it up there long 18 enough for the jury to do that. It's all right. 19 Go on. 20 MR. MOTLEY: "I explained to the 21 other members of the committee that I had been 22 sent to the meeting solely as an observer and had 23 no authority from Johns-Manville Corporation to HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 accept membership on the committee and certainly 2 none from the asbestos industry as a whole. 3 "I was urged, however, to meet with 4 the committee, and agreed to do so on the 5 condition that I might withdraw if approval of my 6 serving in that capacity should not be 7 forthcoming. 8 "I pointed out that members of the 9 asbestosis industry did not care to be associated 10 in the minds of the public or of employees with 11 those industries whose problem was silicosis, and 12 that for this reason I felt there might be some 13 opposition to having a representative of the 14 asbestos industry working with them. 15 "I did indicate, however, that I 16 realized numerous aspects of our problem were the 17 same and that if cooperation could be worked out 18 without an undue amount of publicity, 19 Johns-Manville Corporation and perhaps the 20 asbestos industry as a whole would in all 2 1 likelihood be willing to cooperate. It was the 22 opinion of the committee that this condition 23 would not present any insuperable difficulty. HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1639 1 "Mr. Roger Hitchins, president of 2 American Refractories Institute, was made 3 chairman of the committee, which held a meeting 4 Tuesday evening after the close of the 5 symposium. Mr. Hitchins was designated to meet 6 with Mr. Weidlein of the Mellon Institute and ask 7 him to make a proposal in definite and concrete 8 form as to the manner in which the Mellon 9 Institute might be able to assist the various 10 industries for a fee of" -- is that $125,000 or 11 $25,000? 12 MR. McCONNELL: $25,000. 13 MR. McKENNA: $25,000. 14 MR. MOTLEY: -- "$25,000. When this 15 proposal has been received and approved by the 16 members of the committee, it will be submitted to 17 the various industries with the recommendation 18 that it be accepted and that the various 19 industries or individual corporations agree to 20 stand good for a proportionate amount of the fee 21 not in excess of a definite specified sum. 22 "I gathered that the proposal which 23 would be made by the Mellon Institute would HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1640 include, among others, the following: "The compiling of a comprehensive bibliography of books, treatises, publications 4 dealing with any aspect of the dust problem, and 5 the evaluation thereof. 6 "The compiling, digesting and 7 correlating of data and information from various 8 subscribing industries relative to their 9 particular experiences. 10 "The drafting of approved Workers' 11 Compensation legislation covering 12 pneumoconiosis. 13 "The digesting of the laws of the 14 various states which might affect the operations 15 of industries presenting a dust hazard. 16 "The outlining of problems requiring 17 research or the establishment of fixed standards 18 and the prevention of duplication of efforts and 19 expenses along these lines. 20 "The interest with which the 21 discussions were followed and the enthusiasm 22 which greeted the proposal for a unified effort 23 lead me to believe that the necessary support HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 will be found for some sort of program along the 2 above lines. Vandiver Brown." 3 Do you know, sir, from your 4 experience who Vandiver Brown was? 5 A. He was an executive of the Manville 6 Company, if I recall. 7 Q. Did you see anywhere in that 8 document where they said, Let's tell the workers 9 they are getting sick? 10 A. No, I didn't see that, no. 11 MR. MOTLEY: Your Honor, I'm getting 12 ready to go into another area. I don't know what 13 your pleasure is? Should I go into it now? 14 THE COURT: Go ahead. 15 MR. MOTLEY: Okay. 16 BY MR. MOTLEY: 17 Q. Doctor, this is 4672. 18 MR. MOTLEY: Your Honor, it was 19 preadmitted. 20 BY MR. MOTLEY: 2 1 Q. Doctor, the title of this is "Report 22 of the Physical Examinations and X-ray 23 Examinations of Asbestos Workers in Asbestos and HERBERT ABRAMS, MD DIRE.CT BY MR. MOTLEY 1 Thetford Mines, Quebec." 2 Okay. Did I ask you to review that 3 document for me? 4 A. Yes. 5 Q. And do you see the signature of 6 Dr. Frank Pedley? 7 A. I d o , yes. 8 Q. And the date is 1930? 9 A . Yes. 10 Q. Doctor, to this day, this is -- 11 MR. McCONNELL: Sixty-four years. 12 MR. RION: 1994. 13 MR. MOTLEY: Thank you, I knew 14 that. What is today's date? 15 MR. McCONNELL: April 19th. 16 A JUROR: April 19th. 17 BY MR. MOTLEY: 18 Q. From 1930 until April the 19th, 19 1994, have you ever see seen that report? 20 A. Sixty-two years ago, huh? 21 Q. Sixty-four years ago. 22 A. Sixty-four, yes. 23 Q. Have you ever seen that report in HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1643 1 that form published in the medical literature? 2 A. No, I have not. 3 Q. It says, "The report herewith 4 presented deals with the examination of 141 5 employees of the Canadian Johns-Manville Company, 6 Asbestos, Quebec, and 54 employees of the 7 Asbestosis Corporation of Canada, the 8 Keesby-Mattison Company and Johnson's Mine, all 9 of Thetford Mines, Quebec." 10 Now, Doctor, generally were any 11 cases of asbestosis found by Dr. Pedley in these 12 workers? 13 A. Oh, yes. Yes . 14 Q. What page would we find that ? 15 A. What was your question? 16 Q. What page would we find that on 17 A. Oh, it 's near the end here. 18 Q. To save some time, look on page 19 20 A. Yes , let's see. 21 Q. Nine under "Lungs." They did a 22 complete physical including hearing, vision, so 23 on, and including the examination of lungs. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1644 1 By the way, have I shown you 2 documents to indicate who paid for this? 3 A. I don't recall, but it seems to me I 4 did see that. 5 MR. McKENNA: Objection, Your Honor, 6 unless he's going to show the jury the 7 documents. 8 MR. MOTLEY: Glad to. 9 This is preadmitted, Your Honor. 10 January 7th, 1932. Plaintiff's Exhibit 5187. 11 January 7th, 1926. Excuse me. The 12 medical director of Metropolitan Life, I'm going 13 to read only this clause here. "That the board 14 of directors pass a resolution at their meeting 15 yesterday that" -- I just can't read that. That 16 what ? 17 MR. RION: Authorized. 18 MR. MOTLEY: -- "authorized the 19 officers of the company to appropriate five 20 thousand dollars a year for five years for the 21 proposed survey to be made under the terms and 22 conditions approved by the medical division of 23 the Metropolitan." HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Does that refresh your recollection 2 that Metropolitan Life paid for this? 3 A. Yes. 4 MR. McKENNA: Objection. There is 5 no proof the survey they are talking about in 6 1926 has anything to do with this study in 1930. 7 It calls for speculation and conclusion. 8 MR. MOTLEY: Well, let's see about 9 that. What's this next one? 10 MR. McCONNELL: 5190. 11 MR. MOTLEY: Exhibit 5190. Report 12 of the Activities of the Industrial Clinic, 13 Montreal General Hospital, for the year September 14 1st, 1929, through September 30th. 15 "The asbestos study is nearing 16 completion. 102 individuals were examined 17 clinically and by x-ray at the plant of the 18 Johns-Manville Company and Asbestos, Quebec, in 19 July 1930. Other groups were examined at 20 Thetford Mines in September 1930." 21 Does this report I gave you make 22 reference to those two locations, the Thetford 23 Mines? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 A. Yes, it does. There were two, two 2 groups of workers. 3 MR. RION: There is some more here. 4 MR. MOTLEY: "This study is being 5 carried on with the cooperation of" -- guess 6 who? -- "the Metropolitan Life Insurance 7 Company, and it is expected that valuable 8 information on the subject of asbestosis will be 9 forthcoming. It is hoped that permission to 10 publish the results will be obtained." 11 Now, Doctor, again, have you ever 12 seen this study published in the medical 13 literature ? 14 A. No, it was not published. 15 Q. Do you know, sir, whether or not 16 Dr. Pedley -- this is Exhibit 5193 -- asked Met 17 Life for permission to publish it? 18 MR. McKENNA: Objection, 19 Your Honor. Calls for conclusion, speculation. 20 The document speaks for itself. 21 THE COURT: I'm going to let him 22 review the document and respond to the question. 23 A. This is a letter from Dr. Frank HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1647 1 Pedley, assistant professor, industrial hygiene, 2 Department of Public Health and Preventive 3 Medicine, McGill University/ Montreal. The 4 letter is to Mr. N. L. Burnette, Esquire, 5 Metropolitan Life Insurance Company, Ottawa, 6 Ontario. 7 Q. Page two, sir. 8 A . What's that? 9 Q. It says "Study of Asbestosis." 10 A. Yes. Well, here, on the second 11 page -- it's a long letter - - h e says, "In 12 cooperation with the Metropolitan Life Insurance 13 Company, a survey of two companies mining and 14 milling asbestos was made in July and September 15 of 1930. Physical examination of some 150 men 16 was made, together with chest x-rays, and an 17 interesting state of affairs was disclosed, which 18 was reported to Dr. A. J. Lanza of the 19 Metropolitan Life Insurance Company, but to date 20 permission has not been secured to publish the 21 results of the study." 22 Q. Now that we clarified that, let's go 23 back to the report. Go back to page nine do you HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1648 1 see page nine now, sir? 2 A. Yes, I have it here in front of me. 3 Q. Okay. Can you tell us, sir, whether 4 or not any cases of asbestosis were found in this 5 examination by Dr. Pedley paid for by Met Life? 6 A. Yes. Well, he says, "Of the 101 men 7 examined by me at Asbestos, only four suffered 8 from definite first stage pneumoconiosis." Then 9 he says, "These will not be considered on account 10 of the doubtful diagnosis. 11 "Of the 40 men examined by Drs. 12 Stevenson and Wyatt, 14 were diagnosed as first 13 stage pneumoconiosis. I am including the 17 men 14 examined by Drs. Stevenson and Wyatt and 15 subsequently reexamined by me in my group of 16 101." 17 Then he discusses why in one group 18 there was less -- a lower incidence of 19 pneumoconiosis than the other. 20 And it says, "Of the 54 men examined 2 1 at Thetford Mines, 24 were diagnosed by x-ray as 22 suffering from pneumoconiosis. Of these, four 23 were diagnosed as probably first stage HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1649 1 asbestosis. " 2 MR . McKENNA: Could we read the full 3 paragraph ? 4 THE COURT: I'm sorry? 5 A. The n he gives the table or details 6 of those diagnos es . 7 THE COURT: Go ahead and read the 8 remainder of the first paragraph. Mr. Motley, 9 why don't you do it? 10 M R . MOTLEY: Your Honor, what does 11 he want me to re ad? 12 THE COURT: The remainder of the 13 first paragraph. 14 THE WITNESS: The remainder of the 15 first page? 16 MR. MOTLEY: "The much lesser 17 incidence of pne umoconiosis". 18 THE WITNESS: Well, it's the 19 second. "Of the 40 men examined," is that it? 20 MR. MOTLEY: You read that. He 21 wants you to rea d the next paragraph. 22 THE COURT: Next couple of 23 sentences HERBERT ABRAMS. MD -- DIRECT BY MR. MOTLEY 1650 1 THE WITNESS: "The much lesser 2 incidence of pneumoconiosis in my group of men 3 may seem surprising, but it must be remembered 4 that the x-ray negatives were not red by the same 5 man. In my group, the x-ray diagnoses were made 6 by Dr. Meriwether of Pitcher, Oklahoma, and in 7 other group the interpretations were by Drs. 8 Wyatt and" -- is that Meriwether? I can't quite 9 read it. 10 "Further, the group, crossed out, 11 examined by Drs. Stevenson and Wyatt were in 12 general older than those in my group." 13 BY MR. MOTLEY: 14 Q. Now, if you would turn to page 13, 15 sir -- the problem is these are obliterated. 16 Down at the bottom of the page, sir, is bigger 17 numbers, 1076. Can you look at page 1076? 18 A. Yes, I have that. 19 Q. I believe they total up the cases on 20 that page, do they not? 21 A. Yes. In the table, are you 22 referring to that number? 23 Q. No. Just read the first sentence. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1651 1 A. As to occupations of 41 drillers -- 2 Q. No. You are on the wrong page. 3 A. 1076 I thought you said. 4 Q. I did. The first sentence. 5 A. "It will be noted that of the 141 6 men examined at Asbestos, 17 were diagnosed as 7 first stage asbestosis, while of the 54 examined 8 at Thetford Mines, 2.1 were diagnosed as first 9 stage asbestosis and three as second stage 10 asbestosis. " 11 Q. Go ahead. 12 A. "This is not to be interpreted as 13 indicating an excess hazard in Thetford Mines. 14 The increased incidence of pneumoconiosis in 15 Thetford Mines is simply a reflection of the 16 different distribution with respect to age and 17 length of service. Reference to Tables 1 and 2- 18 will recall the great differences in these two 19 t h i n g s ." 20 Of course, the number of years of 21 exposure is important. 22 Q. Now, would you look at the bottom of 23 the page as to occupation. HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1652 1 A. Yes. "As to occupations of 41 2 drillers, 13 were cases of asbestosis. Of 109 3 mill workers, 27 were cases of asbestosis. And 4 of 40 workers in the factory, only one case 5 showed x-ray evidence of the disease. Evidently 6 there is little difference in the hazard in mill 7 workers and drillers. The mill workers appear to 8 be exposed to far greater dust concentrations 9 than the drillers, and it's rather difficult to 10 understand the high incidence of asbestosis among 11 the drillers. However, it may or may not be of 12 interest to note that the drillers are 13 occasionally exposed to granite dust." 14 Do you want further reading or -- 15 Q . N o , sir. 16 MR. McKENNA: Could you read the 17 next paragraph, next two sentences. 18 Q . Yes, sir. 19 A. The next one. "None of the cases of 20 asbestosis appeared to suffer from disabling 2 1 symptoms. Programs the most common symptom was 22 shortness of breath, but less than half the cases 23 complained of this symptom." 11 of the 41 cases HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1653 1 complained of shortness of breath. 2 Q. Now, Doctor, look at page 1073. 3 A. Okay. 4 Q. This is where they give the 5 occupational histories. Do you see that? 6 A . Yes. 7 Q. Would you look at thelast case of 8 stage one asbestosis. 9 A. Yes. The last worker listedhere is 10 a pipecoverer working in a factory for four 11 years. 12 Q. How old was he when he got sick? 13 A. He was 22. Age 22 at that point. 14 Q. Now, Doctor , as a public health 15 specialist, is there any particular -- by the 16 way, what is a pipecoverer? Is it sometimes 17 called what? 18 A. An insulator, a person applying 19 insulation materials. 20 Q. Based on your knowledge of the 21 literature, had this been published, would this 22 have been one of the earliest cases of asbestosis 23 in an insulator? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1654 1 A. Probably it would have been, yes. 2 Uh-huh. 3 Q. Doctor, do you draw -- is there any 4 significance in the finding of asbestosis in the 5 mines and mills where the asbestos is taken out 6 of the ground? 7 A. Yes. This was, of course, done in 8 1930, a long time ago, and if it had been 9 published, it would hav.e been a valuable addition 10 to the literature that went to the doctors and 11 the industry and so on. It would have helped add 12 to our knowledge and, therefore, accelerated the 13 control of this condition. 14 Q. Now, if the numbers work out to 18 15 out of 141 is 13 percent -- I would just ask to 16 you assume this -- and at Thetford, 21 out of 54 17 equals 44 percent, can you comment on that attack 18 r ate ? 19 A. Well, they are both a high attack 20 rate. 21 Q. How many cases of asbestosis should 22 you have? 23 A. You should have none. It's a HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 totally preventable disease. 2 Q. Now, Doctor, have you looked at some 3 of the publications of Dr. Lanza where he 4 discussed whether there was asbestosis? You saw 5 where they had asked Lanza if they could publish 6 in that one document; right? 7 A. Yes. Uh-huh. 8 Q. I'm handing you a documentwhich we 9 have marked as Exhibit 4762. Do you see, this is 10 by Dr. Lanza? 11 A. Yes. I see here that there is a few 12 paragraphs on asbestos here. 13 Q. He says, "Asbestosis, however, is 14 not found among asbestos miners." 15 A. Yes. I see that. 16 Q. How do you square that with this? 17 A. And this is, what, 1940? It's ten 18 years after Dr. Pedley reported that significant 19 number of the miners got asbestosis. 20 Q. Well, how do you square these 21 numbers with saying it don't happen? 22 A. You don't square it. It's not 23 square HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q* Would you like to take a look at the 2 last page, sir, of Dr. Pedley's report. 1078 at 3 the bottom. 4 A. Yes. In general -- 5 Q. No, down at the bottom, sir. 1078. 6 A. Yes. I'm on 1078 here. 7 Q. Where it starts, "Conversation" -- 8 A. Oh, "Conversation." "Conversation 9 with physicians and mine managers in the asbestos 10 regions indicated that no hazard to health was 11 suspected in connection with work in the asbestos 12 mining and milling industry." 13 Then he goes on to -- 14 Q. In other words, the people working 15 with it didn't know it was hazardous? 16 A. Apparently so. But he demonstrated 17 that it w a s . 18 Q. Then what did he say? 19 A. He says, "In general, it may be said 20 that the hazard of pneumoconiosis in the asbestos 2.1 mining and milling industry has been 22 demonstrated." 23 Q. Okay . "But evidently the disease HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1657 1 does not Incapacitate to any great degree and 2 apparently it is not particularly associated with 3 tuberculosis." That was the conclusion of 4 Dr. Pedley? 5 A. Correct, yes. 6 Q. Now, this is Plaintiff's Exhibit 7 4772, Your Honor. Now, this is Dr. Lanza writing 8 to the government. 9 MR. McKENNA: Could you give us the 10 description of the document? 11 MR. MOTLEY: 4772, from Dr. Lanza to 12 Mr. Manfred Borditch, February 10th, 1942. 13 BY MR. MOTLEY: 14 Q. This is 12 years after Dr. Pedley 15 just said he had demonstrated asbestosis in the 16 mines; correct? 17 A. That's right. That's right. 18 Q. And here we have Mr. Lanza writing 19 the government in Massachusetts -- show them 20 Lanza signed it, Dr. Lanza. Show the date, 21 please, February the 16th, 1942, on Metropolitan 22 Life's stationery. 23 "I have your letter of the 13th. I HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 think it is possible that this man may have 2 asbestosis. As you know, we find our cases of 3 asbestosis in those who fabricate asbestos and 4 not in those who mine it." 5 MR. McKENNA: Could we read the next 6 sentence too. 7 MR. MOTLEY: Sure. 8 "We have found evidence of it in men 9 who trim asbestos pipe moldings, shingles and 10 other material of this nature with a power saw." 11 BY MR. MOTLEY: 12 Q. Now, how do you square Dr. Lanza 13 twelve years after he gets this Pedley report 14 saying we don't find it in the mines? 15 A. It's impossible to square it. It's 16 hard to understand it. 17 MR. MOTLEY: Your Honor, I'm going 18 to a different subject. Would this be an 19 appropriate time to quit for the day? 20 THE COURT: It will be. I remind 21 you, please don't watch any news accounts or 22 listen to any news accounts of this trial. Do 23 not discuss the case among yourselves, do not HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 (In open court with a 2 jury present at 9:20 a.m.:) 3 THE COURT: Okay. Mr. Motley, do 4 you want to pick up where you left off. 5 HERBERT ABRAMS, WITNESS, PREVIOUSLY SWORN 6 DIRECT EXAMINATION (Continued) 7 BY MR. MOTLEY: 8 Q. Good morning, Doctor. Good morning, 9 ladies and gentlemen of the jury, counsel. IO A. Good morning. 11 Q. Doctor, I want to come back to a 12 subject very briefly. You recall yesterday we 13 were talking about Dr. Pedley who did the study 14 of miners -- 15 A. Yes. 16 Q. -- in Canada. 17 And I asked you whether you had ever 18 seen the study of Dr. Pedley that we handed you 19 yesterday. 20 A . Yes. 2 1 Q. -- published in themedical 22 literature in that form. Do you recall that? 23 A. Yes, I do recall that. I had not HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY seen it. Q. Okay. Now, I want to show you -- MR. MOTLEY: Your Honor, this is 4 Exhibit 4778. 5 BY MR. MOTLEY: 6 Q. It's by a gentleman namedWheatley 7 dated 1944, Dr. Wheatley from Metropolitan Life. 8 Have you seen that before I showed it to you? 9 A. No, I have not. 10 Q. Would you look at page two. 11 A. Yes. 12 Q. The title of this is "A 1944 Study 13 Metropolitan Life." You see the name Wheatley? 14 A. I see that, yes. 15 Q. Assistant medicaldirector. And 16 it's called "Tuberculosis and Asbestosis.11 And I 17 think that says, "A Brief Review of Current 18 Knowledge and Analysis of Tuberculosis Mortality 19 in the Asbestos Mining Community of Thetford 20 Mines, P. Q." I think that means Quebec 2 1 Province, Canada; okay? 22 Had you ever seen that before? 23 A. No, I had not. *<h1**"-- "r* HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q. Okay. It says on page two, Canadian 2 observations. "In 1930, Pedley and his 3 associates examined physically and by x-ray 195 4 asbestos workers in the towns of Asbestos and 5 Thetford Mines." Now, that's what we showed the 6 jury yesterday; right? 7 A. Yes, I recall that. 8 Q. Okay. And then they have a table. 9 Do you see that? 10 A . Yes. 11 Q. That's the same table we showed the 12 jury yesterday, isn't it? 13 A. Yes, I see that. 14 Q. Okay. On page two, he says, "There 15 have been no published reports among asbestos 16 workers in Canada with respect to the prevalence 17 of tuberculosis in the asbestos industry. In 18 1930, Pedley and his associates examined 19 physically and by x-ray 195 asbestos workers in 20 the towns of asbestos and Thetford Mines." Do 21 you see that? 22 A. I seeit, uh-huh. 23 Q. Okay. Then he shows that table, if gas HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY you look on page ten. He's lost page ten. A. I have page ten. 4 Q. No. Mr. McConnell has lost it. 5 A . Oh, I see. 6 Q. I will read it to you so the jury 7 can see it and I will read it to you. 8 "Dr. A. J. Lanza, assistant medical 9 director, has very generously permitted us to use 10 his unpublished data 11 What's that next word? 12 MR. McCONNELL: Secured. 13 Q. -- "secured by Pedley in 1930 on 14 asbestosis and tuberculosis in miners of Thetford 15 and Asbestos. Dr. Lanza has also advised on the 16 preparation of the final report." 17 Now, sir, does that confirm what you 18 said yesterday that that Pedley study was not 19 published? 20 A. Exactly. 21 Q. Did you ever see that Wheatley 22 report published in the American literature? 23 A. No, I had not. I have never seen mm* *o?v. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 it. 2 Q. Do you have any idea -- give me the 3 Lanza book. 4 There has been a lot mentioned about 5 this dog-eared book of mine called Silicosis and 6 Asbestosis by Dr. Lanza in 1938. 7 A. Yes. I see that. 8 Q. Do you know whether or not Dr. Lanza 9 bothered to put the Pedley report in this 10 textbook? 11 A. I don't think he did. 12 Q. Now, let's turn to another subject, 13 sir. Have you ever heard of a place called 14 Manville, New Jersey? 15 A. I have heard of it, yes. 16 Q. And what have you heard about it? I 17 don't mean whether it's a good place to live or 18 anything. 19 A. Well, they had a Manville plant 20 there at one time anyway. I don't know what the 2 1 situation is today. 22 Q. That might explain why it's called 23 Manville, New Jersey; right? #--' 4 -- . HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1 A. Could be. 2 Q. Okay. 3 MR. MOTLEY:Your Honor, we move, 4 pursuant to Your Honor's ruling yesterday, into 5 evidence Exhibit 5345. This is the 1932 study 6 you ruled on yesterday. 7 MR. McKENNA: May I see it? 8 THE COURT: All right. 9 BY MR. MOTLEY: 10 Q. Now, sir, Iwant to show you another 11 document, that accompanies this. We retyped this 12 so it would be clearer. 13 A . Sure. 14 Q. It says "Physical Examinations at 15 Manville Plant, Manville, New Jersey." 16 "At a conference of general 17 headquarters, it was decided to" -- what's that 18 word? 19 A. To conduct chest -- 20 Q. -- "chest examinations on 600 21 employees taken at random for" -- 22 MR. McCONNELL: From different 23 parts. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1674 Q. "from different part s of the factory. It was recommended by Dr. Fellows of the Metropo litan Life In suranc e Comp any that examination s be made by x-ray and f1uoro scope. 5 It was late r dec ided tha t this exami nation 6 include all empi oyees at the Manvill e factory, 7 Up a little built , plea se . 8 "On recommendation" -- 9 MR. McKENNA: Could we read the 10 entire para graph down to the next hi ghlighting 11 MR. MOTLEY: Sure. 12 BY MR. MOTLEY: 13 Q. "An x-ray and fluoroscope were 14 installed on February 22nd, 1932. Active work on 15 employees was started on February 24th. The 16 services of Dr. P. K. Sabotelle, on 17 recommendation of Dr. Fellows of Met Life, were 18 obtained for the fluoroscopic examinations and 19 supervision of the general examinations of the 20 employees, which also included x-rays, some 2 1 physical examinations of chests, and histories. 22 "Dr. Sabotelle was assisted by a 23 Mr. Fetkenhouer, who acted as technician and took HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY all the x-rays of employees' chests. The histories were taken by Miss Meirs, who was thought best fitted for the task because of her 4 intimate connection with most of the families of 5 the employees and her knowledge of most of their 6 past histories. No specific reason was given to 7 employees for the examination except the general 8 understanding that it was a 'general health 9 survey.' 10 "On recommendation of Dr. Lanza of 11 Metropolitan Life Insurance Company, contact was 12 made with Dr. Meriwether, surgeon in charge, U.S. 13 Bureau of Mines, Picher, Oklahoma, to interpret 14 the x-rays taken." 15 MR. MOTLEY: Do you want me to read 16 the rest of it? 17 MR. McKENNA: I think you probably 18 ought to read the next paragraph and the next 19 paragraph in view of your claim. 20 BY MR. MOTLEY: 21 Q. "An examination card was made up to 22 include fluoroscopic record, history record, as 2 3 well as standard physical examination for HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY employment in order to make one complete physical record. An x-ray card was made up to send with 3 each x-ray film to Dr. Meriwether for him to 4 record his interpretations. This was done for 5 the purpose of having only one record of the 6 x-ray interpretations. 7 "Employees to be examined were 8 selected by the personnel department. Each 9 employee was summoned to appear at the plant 10 dispensary by appointment. On arrival, his 11 complete record of employment, injuries and 12 illnesses, past and present, were obtained by 13 Miss Meirs by means of leading, questions 14 appearing on the examination card. 15 "The employee was then prepared for 16 examination and an x-ray and fluoroscopic 17 examination made. On the x-ray film was included 18 the employee's clock number for the purposes of 19 identification. 20 "Physical examination of cases with 21 positive fluoroscopic findings were made by 22 Dr. Sabotelle. The fluoroscopic findings were 23 recorded directly on the card by Dr. Sabotelle. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1677 The positive cases that had a previous employment history of a dust occupation were called" -- I can't read that word. 4 THE COURT: Pneumoconiosis? 5 A. Pne umoconios is 6 Q. -- "'pneumoc on ios is 9 r which is the 7 gene ral, n0 nspe cific term for a du st inf ection of 8 the lungs . The positive ca ses tha t had no 9 prev ious dust hi story was call ed 9 asbest 0 sis .'" 10 MR. McKENNA: Why don't you just 11 read the next three and that will do it. 12 MR. MOTLEY: Why don't I read four 13 of them? 14 MR. McKENNA: Okay, four is fine. 15 Whatever you want to do. 16 BY MR. MOTLEY: 17 Q. "The x-rays with a card attached 18 bearing only the employee's clock number, and not 19 his name, were sent direct to Dr. Meriwether. 20 This card also contained the past dust history of 21 the employee. 22 "It was originally intended that 23 only six hundred of the employees be examined, . 5 # . -" - v w * * -* * HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY but the results of the first five hundred examined were so impressive that it was decided to examine all factory employees, the total 4 examined being 1140." 5 MR. McKENNA: Just read the next 6 sentence and that's it. 7 Q. "The examination period was from 8 February 24th to May the 19th, 1932, and an 9 average of 100 employees a week was examined." 10 Now, is there anything significant, 11 sir, about 1140 people being investigated for 12 asbestcsis in 1932? 13 A. Yes. Very significant. The fact 14 that it was a large number, perhaps the largest 15 group examined for asbestosis up to that point in 16 the United States, at least by 1932, and it would 17 have been quite useful to have those results. 18 Q. Now, sir, in the results it showed 19 28.6 percent had positive findings, did it not? 20 A. I believe so, yes. I have it here, 2 1 yes. Uh-huh. 22 Q. Is that significant? 23 A. Yes. That shows a high attack rate (OSS HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1679 for asbestosis in that group, uh-huh. Q. What kind of worker was examined at that Manville plant; that is, what type of occupation? 5 A. Well, they were, as I understand it, 6 they were manufacturing workers, fabricating 7 insulation materials. 8 Q. Well, this table shows the 9 different -- 10 A. Different occupations. 11 Q. Yes, sir. People in the shipping 12 department ? 13 A. Let' s see. 14 Q. Do you have the right page? Let me 15 give you the retyped one so you can see that. 16 A. Yes., I have -- the departments are 17 listed, yes. 18 Q. Shipping department? 19 A. Pipe maker, electrician, so forth. 20 Q. Electrician, glove department? 21 A. Yes. Brake lining, machinist, paper 22 mill, packing, so forth. 23 Q. Watchman? 1 HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY A . Yes. Q. Now, Dr. Abrams, have you heard the term "bystander" used before? 4 A. The term "bystander," is that what 5 you said? 6 Q. In connection with asbestos 7 disease. 8 A. Yes, I have. 9 Q. What does that mean? 10 A. Well, it has been demonstrated in a 11 number of studies that so-called bystanders -- 12 that is, people who are not actually working with 13 the material -- can get asbestosis and other 14 asbestos diseases simply because they are in the 15 vicinity and they are inhaling the dust. 16 Q. Does this study in 1932 demonstrate 17 that bystanders, people not working actually in 18 the factory, could get sick? 19 A. Yes. Well, watchman, for example, 20 is a good example of that. 2 1 Q. Now -- 22 A. Perhaps others. 23 Q. To your knowledge, was that study we . HERBERT ABRAMS, MO DIRECT BY MR. MOTLEY 1 have been talking about ever published in the 2 scientific literature for doctors like yours to 3 review? 4 A. No, it was not published. 5 Q. Now, Doctor, I want to show you a 6 document by Dr. Lanza. 7 MR. MOTLEY: This is Exhibit 5199, 8 Your Honor. 9 BY MR. MOTLEY: 10 Q. Show who wrote it. 11 I'm sorry, can you come down ? 12 A.. I can see that, yes 13 Q. You can see that a lot better than 14 can. 15 A. I can read it. Oh, not the last 16 line . 17 Q. This is a letter by D r . Lanza? 18 A. Yes, I see that. 19 Q. And it was written to a Dr. Donald 20 Cummings, assistant director, Saranac 21 Laboratory. Do you know who Dr. Cummings was? 22 A. Well, he worked at Saranac, I d o n 't 23 recall his position. It's indicated there HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY Q. What was Saranac? A. Saranac started out as tuberculosis facility in the days when people had a very high 4 rate . 5 Q. You have to keep your voice up. 6 The jury heard testimony that there 7 was a Saranac Laboratory that studied a product 8 called Kaylo? 9 A. Oh, yes. Yes. 10 Q. Did animal studies, is that the same 11 Saranac? 12 A. Same organization, sure. 13 Q. This is dated April 11th -- 1933, 14 1932? -- April 11th, 1933, from Dr. Lanza. It 15 says, "I found your letter of April the 8th on my 16 return from Pittsburgh. I am very much afraid 17 that I have not much of comfort to you. I talked 18 it over with Sayers, and he feels very strongly 19 that if you and the Saranac Laboratory are going 20 to stay in the consulting business with respect 2 1 to the mining industry, it will not be possible 22 for you to publish these papers at least at the 23 present time. I myself somewhat reluctantly feel HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY inclined to agree with him. "At the same time we must recognize that the" -- what's that word? MR. McCONNELL: Present. 5 MR. McKENNA: Can you read the 6 entire letter, please? 7 BY MR. MOTLEY: 8 Q. -- "the mining companies in Michigan 9 with whom you have been in contact have interest 10 in the Picher district. If these papers are 11 published against the wishes against the Tristate 12 Associates, you will undoubtedly promptly feel 13 the repercussions elsewhere. 14 "As I said before, I feel the whole 15 situation is unfortunate, but it is one of those 16 things that cannot be helped. 17 "I think it is important that the 18 Saranac Laboratory establish and maintain contact 19 with asbestos firms because it is going to be 20 increasingly necessary for industry to have 2 1 available a thoroughly scientific and impersonal 22 establishment with which it can do business. 23 "At the same time, we must recognize * i . HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1684 .1 that the recent disturbing condition of affairs 2 with the extraordinary multiplicity of damage 3 suits for silicosis is not only very disturbing, 4 but necessitates that all of us who are in 5 contact with industrial firms proceed with a 6 great deal of caution. 7 "I understand that shyster lawyers 8 are beginning to stir things up in Picher and 9 Miami, which makes the situation with respect to 10 the Tristate Associates still more difficult. 11 "On the other hand, I feel fairly 12 certain that when the industrial situation starts 13 to clear up, you will be able to bring your 14 reports up-to-date and have them published. In 15 that respect, as I pointed out, you are in the 16 same position as we are with the investigations 17 we have made in the asbestos industry." 18 Doctor, do you have an opinion as to 19 whether it is consistent with good public health 20 policy that laboratories and scientific 2 1 investigations not be allowed to publish papers 22 because of lawsuits? 23 A. Well, I would say it's a HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 reprehensible, terrible attitude, and it just 2 deals fast and loose with human life. It's a 3 cynical approach to the situation, because it 4 should be open. That's the only way to protect 5 human beings. 6 Q. Sir, I'm now going to go to another 7 subject. 8 MR. MOTLEY: Your Honor, we move 9 pursuant to Your Honor's ruling yesterday the 10 admission of Exhibit 3977, questions and 11 answers. 12 BY MR. MOTLEY: 13 Q. Doctor, at my request, did you 14 review Exhibit 3977, which is dated August the 15 29th, 1933? 16 A. I don't recall this one. 17 Q. It's questions and answers of 18 Dr. Lanza. 19 A. Oh, yes. Now I recall it, yeah. 20 Q. "Questions asked Dr. A. J. Lanza and 2 1 His Answers Verbatim." 22 A . Yes. 23 Q. "Attached is a copy made by HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY Mr. Kottcamp's office of questions asked Dr. A. j. Lanza by our local physician at Waukegan and his answers; also the recommendations by our plant physician. 5 "I would like to have you turn this 6 over to someone who could review this 7 correspondence, and then go over it yourself and 8 write me your opinion of it. S. A. Williams, 9 vice president." And then a copy to 10 Mr. Kottcamp, Waukegan Factory. 11 Are you familiar with the existence 12 of a Johns-Manville plant in Waukegan, Illinois? 13 A. Yes. 14 Q. That was near Chicago, wasn't it? 15 A . That 's right. 16 Q. "Questions Asked Dr. A. J. Lanza and 17 His Answers Verbatim." I'm not going to go over 18 all of them. 19 "Question No. 2: Do you agree with 20 my recommendation that employees definitely be 21 made aware of the fact" -- 22 MR. McKENNA: Excuse me, 23 Mr. Motley. Do you want to read one and two? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 MR. MOTLEY: Your Honor, I don't 2 think I should have to read everything he wants 3 me to read. We will be here all morning. 4 MR. McKENNA: That's fine. If he 5 doesn't want to read it, that's fine. 6 THE COURT: Go ahead. 7 BY MR. MOTLEY: 8 Q. "Do you agree with my recommendation 9 that employees definitely be made aware of the 10 fact that asbestos dust is hazardous to their 11 health? My idea is that a poster be placed at 12 one or more conspicuous places in the department, 13 signed by the physician, stating that the dust is 14 injurious, advising the continuous use of 15 respirators while at work and cleansing of hands 16 before heating lunch and after work. 17 "Your comment on this please, and 18 particularly is there any additional advice that 19 should be given?" 20 Answer by Dr. Lanza: "This is 21 partially answered by No. 1." I may have to go 22 back and read number one. 23 MR. McKENNA: That's why I wanted it HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 read in the beginning. 2 MR. MOTLEY: Well, you are kind to 3 bring it to ray attention. 4 Q. "I doubt if the hazard is sufficient 5 to justify warning posters as might be used where 6 lead, benzol or carbon monoxide are concerned. 7 This is especially true in view of the 8 extraordinary legal situation." 9 There we go again worried about 10 lawsuits; right? il A. Right. 12 Q. "If anything is said at all, it 13 would be better to make a general statement that 14 the company is taking steps to control the amount 15 of dust in the air for general health purposes. 16 Any action contemplated in Waukegan would 17 probably be influenced by the experience at other 18 plants of the company." 19 Go down and read No. 1. It refers 20 to N o . 1. 21 "Among 11 employees in the textile 22 department, all exposed to asbestos dust, one 23 only wears a respirator, several on being HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 questioned claim they cannot wear them 2 continuously, especially in hot weather. 3 "Should all employees be forced to 4 wear these respirators whether subjected to much 5 or little asbestos dust? If any such difficulty 6 experienced at the Manville, New Jersey, J-M 7 plant or other places of which you have 8 knowledge?" 9 Answer by Dr. Lanza. "Respirators IO are not satisfactory. It is possible to 11 construct a respirator which will filter out fine 12 dust, but it would offer so much resistance to 13 respiration that it could not be worn 14 continuously on an eight-hour shift. 15 "There are on the market small face 16 mask respirators which are equipped with positive 17 pressure, and these are both satisfactory, 18 efficient and comfortable, but they cannot be 19 worn except by a person who stands in one place 20 as they have to be hooked up with a rubber tube 21 to an air line. I doubt if they would be 22 practical in a textile plant." 23 Now let me get back to Question No. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 2 again. 2 A. Yes. 3 Q. Do you remember, we showed the jury 4 what Dr. Meriwether said in 1930 yesterday? 5 A. Yes. I'm trying to remember 6 specifically what you are referring to. 7 Q. Do you remember the term sane 8 appreciation of hazard? 9 A. Yes. I recall that, yes. 10 Q. Is the advice given here by 11 Dr. Lanza not to put up posters consistent with 12 good public health practice as it existed in the 13 1930s? 14 A. No. It was bad practice then as it 15 is today, because it's so important, we are 16 dealing here with a disease that is totally 17 preventable, but not curable. 18 So that the only sane measures are 19 to try to prevent the disease. And to put legal 20 considerations in front of human, life is really, 21 really sad. 22 Q. Particularly in light of the fact 23 that they are worried about lawsuits? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY A. Exactly. That's what I'm saying. Q. Page three. "I have made a diagnosis of asbestosis on an employee who has been working in 5 the card room of the textile department six 6 years. This place is extremely dusty. He is not 7 disabled. 8 "In my judgment, the best 9 disposition of such a case is to remove him from 10 the dust and give him a job in some other part of 11 the plant. From your remarks in Chicago, I 12 believe this was your advice as to the 13 disposition of such cases. 14 Dr. Lanza says: "It is difficult to 15 answer this question. I think it would depend 16 upon the man's age, the nature of his work, his 17 length of service, and other considerations which 18 might have some bearing. If he is well along in 19 years and shows no disability, it may be just as 20 well to leave him alone. One of the difficulties 21 and vexations in trying to deal with the problems 22 of pneumoconiosis is that economic as well as 23 production factors must be balanced against the art. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 1 medical factors." 2 Now, Doctor, in the 1930s, if a man 3 had asbestosis, was it a sound public health 4 policy to leave him where he got it? 5 A. No. Again, it's a cynical attitude 6 that you must balance economic factors against a 7 man's life. 8 We are dealing with human lives, and 9 I think that this was terrible policy then as it 10 would be today. And simply because it was some 11 years earlier doesn't excuse it. We are dealing 12 with human beings then as we are today. 13 Q. Give me one second. I'm looking 14 this up. 15 "Recommendations of Plant Physician 16 Following Examination of Employees in Textile 17 Department and Comment by Dr. A. J. Lanza." 18 "Employees in the textile department 19 should tactfully but definitely be made aware of 20 the fact that work in asbestos dust is hazardous 2 1 to their health. Every reasonable effort should 22 be made to induce them to wear respirators. They 23 should be instructed in the necessity of HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 thoroughly cleansing their hands before eating 2 lunch and after work, and provided adequate 3 facilities for doing this. 4 "Comment: I think this is out, at 5 least for the present. Personal cleanliness does 6 not enter into this problem." 7 A. Well, it's the same answer, 8 obviously. Dr. Lanza isn't thinking first of the 9 employees here. He's thinking of the plant and 10 production and economics. 11 But the questions are very good. It 12 indicates the plant's physician was conscientious 13 by raising good questions, but the answers were 14 pretty terrible. 15 Q. And when you refer to the answer, 16 you are talking about Dr. Lanza?. 17 A. Dr. Lanza's answers, sure. 18 Q. This is the same Dr. Lanza that came 19 out -- 20 A . And pounded on the table when I met 21 him, yeah. When I mentioned the odious word 22 "silicosis," he didn't like that. 23 Q. How many times did you meet HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1694 1 Dr. Lanza? 2 A. Oh, I would say probably two or 3 three times. I don't recall exactly. 4 Q. This policy of not tellingpeople 5 they are sick, is that what you found from 6 Dr. Smart yesterday and showed the jury? 7 A. Oh, yes. 8 Q. Same policy? 9 MR. McKENNA: Objection, .10 Your Honor. 11 A. That was by Dr. Smart's own 12 admission -- 13 THE COURT: You said what? 14 MR. McKENNA: Objection. 15 THE COURT: I'll sustain that. 16 A. -- what they had. 17 Q. Did you find out, sir, from your own 18 experience twenty years later whether 19 Johns-Manville was following the same policies? 20 MR. McKENNA: Objection, 21 Your Honor. 22 A. They were following the same pattern 23 essentially all through that period. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 THE COURT: I'll let the answer 2 stand. 3 BY MR. MOTLEY: 4 Q. They were following the same policy? 5 A. That's correct, yes. 6 Q. I want to show you another document, 7 sir. 8 MR. MOTLEY: Your Honor, we move the 9 admission of Exhibit No. 8 pursuant to your 10 ruling yesterday. 11 THE COURT: It will be received. 12 MR. MOTLEY.: Your Honor, we are 13 going to substitute -- there was a page missing 14 and counsel found it. We are going to substitute 15 it, but so as not to delay the jury, we will go 16 ahead. 17 BY MR. MOTLEY: 18 Q. Now, this is a Johns-Manville report 19 dated February 3rd, 1949, "Industrial Hygiene, 20 Survey of Men in Dusty Areas." Did you ever meet 21 Mr. Woodard of -- 22 A. No, I don't recall that I ever met 23 him. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q. But you heard the name Vandiver 2 Brown, haven't you? 3 A . O h , yes. 4 Q. He was a lawyer for Johns-Manville? 5 A. Exactly. 6 Q. Okay. Lookdown at the bottom. Do 7 you see any initials down there? 8 A A iJL . 9 Q . And H .M . J ., 10 A. H.M.J. 11 Q. What was Dr. Lanza's name? 12 A. Anthony J. Lanza, yes. 13 Q. Now, I want to show you, sir, on 14 page three. This is by Dr. Kenneth Smith it 15 shows at the end. Did you ever meet Dr. Smith? 16 A. Yes. 17 Q. Tell the jury who he was? 18 A. Well, I met Dr. Smith after the 19 expose of the diatomaceous earth silicosis in 20 California. He was then appointed by the 2 1 Johns-Manville Corporation as their corporate 22 medical director. 23 As a matter of fact, he was their HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1697 first corporate medical director up until that time. They had part-time doctors in their various plants. And he came out to California at one point shortly after that, and I met with him. 5 Q. Okay. Now, this 1949 report by 6 Dr. Smith working up in the mines in Canada, it 7 says , "Of the 708 men , 7 have x -ray evidence of 8 early asbestosis. All have had at least twenty 9 years of exposure to the dust. It must be 10 remembered that, although these men have the 11 x-ray evidence of asbestosis, they are working 12 today and definitely are not disabled from 13 asbestosis. 14 "They have not been told of this 15 diagnosis, for it is felt that as long as the man 16 feels well, is happy at home and at work, and his 17 physical condition remains good, nothing should 18 be said. When he becomes disabled and sick, then 19 the diagnosis should be made and the claim 20 submitted by the company. 21 "The fibrosis" -- what's that mean, 22 scarring? 23 A. The scarring, yes, uh-huh. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q. -- "of this disease is irreversible 2 and permanent so that eventually compensation 3 will be paid to each of these men. But as long 4 as the man is not disabled, it is felt that he 5 should not be told of his condition so that he 6 can live and work in peace and the company can 7 benefit by his many years of experience. Should 8 the man be told of his condition today, there is 9 a very definite possibility that he would become 10 mentally and physically ill, simply through the 11 knowledge that he has asbestosis." 12 A. Yes. 13 Q. Doctor, would you -- 14 MR. McKENNA: Could we read the next 15 sentence, please? 16 MR. MOTLEY: Glad to. 17 Q. "The advisability of transferring 18 these men is discussed later in this report." 19 Then they go on to talk about 20 whether they ought to transfer them. 21 A . Yes . 22 Q. Dr. Abrams, as a public health 23 expert, what is your opinion about this policy of HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 not telling a man he has a disease which the 2 doctor says is going to get worse and worse and 3 worse? 4 A. I don't need to be a public health 5 expert to condemn that policy. I just -- just 6 any human being would know that that policy is 7 terrible. 8 A human being has a right to know 9 whether he's endangered, and should be able to 10 take steps to protect himself. 11 We are dealing here, of course, with 12 a disease, as I mentioned before, that is totally 13 preventable but not curable, and asbestosis tends 14 to be progressive. So that once it starts, it 15 will continue. 16 And to condemn a man like this -- if 17 a man is found to have something like that, he 18 should be taken out of the dust and not kept in 19 the dust because it will only get worse. 20 Q. Well, even assuming, they moved him 21 out of the dust, do you still think he should be 22 told? 23 A. Absolutely. Absolutely. It is his HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 life and his family, they should know, so that 2 anything necessary to make his life more 3 comfortable and protection against superimposing 4 pneumonias and other conditions can be protected 5 against. 6 Q. Doctor, even people with early 7 asbestosis, aren't there things that, while they 8 can't cure the disease, aren't there ways they 9 can try to protect themselves from colds and the 10 flu, get flu shots? 11 A. Of course, of course. It's very 12 important to protect oneself against infections 13 in a condition like that, when the lungs are 14 already weakened. 15 Q. Now, Doctor, I want to go to a 16 different subject. 17 By the way, let me ask you this, 18 just as a general matter. Have you ever heard in 19 a scientific meeting a reputable doctor stand up 20 and say, The less said about asbestosis, the 21 better off we are? 22 A. I hope I never hear that. 23 Q. I want to go to 1943. Tell the HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 ladies and gentlemen of the jury if you know who 2 Leroy Gardner was? 3 A. Leroy Gardner for a number of years 4 was the medical director of the Saranac 5 Laboratories in New York state, and he was an 6 authority and a researcher in the field of 7 pneumoconiosis, silicosis, asbestosis 8 particularly. 9 Q. He's deceased; correct? 10 A. Yes. He died in 1946. I think, in 11 October of 1946. 12 Q. Unfortunately, Doctor, a lot of 13 these people are dead, aren't they? 14 A. Yes, unfortunately. 15 Q. Have there been publications in the 16 medical and scientific literature by people of 17 your age about the goings on at the Saranac 18 Laboratory? 19 MR. McKENNA: Objection, 20 Your Honor. 2 1 MR. MOTLEY: I'll rephrase it. 22 BY MR. MOTLEY: 23 Q. Do you know whether other doctors *v V* HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY have written about what happened at the Saranac Laboratory with Metropolitan Life and Johns-Manvilie? 4 MR. McKENNA: Objection. 5 THE COURT: I'll allow him to answer 6 that. 7 A. Yes, there have been some 8 publications. 9 Q. Describing what we are about to talk 10 about; correct? 11 MR. McKENNA: Objection, Your Honor. 12 A. I believe so, yes. 13 THE COURT: I'll overrule the 14 objection. Go ahead. 15 BY MR. MOTLEY: 16 Q. When Dr. Gardner died, who succeeded 17 him, do you know? 18 A. Dr. Vorwald, I believe, was the next 19 director. 20 Q. Generally, sir, can you describe 21 from your personal knowledge the kind of -- I 22 want to focus in on asbestos, now; okay? 23 A. Yes. HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1703 1 Q. Although, to your knowledge, did 2 Saranac also do investigations about diatomaceous 3 earth? 4 A. Oh,yes,sure. 5 Q. In your personal file, do you have 6 letters and things, if they would like to see 7 them, that talks about the investigations they 8 did on diatomaceous earth? 9 A. Oh, yes. I knew that firsthand, 10 their work on diatomaceous earth. 11 Q. Are you aware of any work Saranac 12 did on asbestos? 13 A. Oh, yes. Oh, yes. 14 Q. Describe generally the type of work 15 they did, without any detail? 16 A. Well, in about 1936, the major 17 corporations that were manufacturing asbestos 18 products contracted with Saranac Lake Laboratory 19 and Dr. Gardner to do experimental work, 20 investigative work on asbestosis. 2 1 And Dr. Gardner carried that on for 22 a number of years until his death, as a matter of 23 fact. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 MR. MOTLEY: Your Honor, I believe 2 you preadmitted 213. 3 BY MR. MOTLEY: 4 Q. I have a letter here that the Judge 5 has admitted from the president of one asbestos 6 company to the president of another one. And 7 it's dated November 10th, 1936. 8 A. Yes. 9 Q. We retyped it so it would be easier 10 for me to read and the jury to see. 11 A . Yes. 12 Q. November 10th, 1936. Mr. Schluter 13 of the Thermoid Rubber Company. 14 "My Dear Mr. Schluter: The writer 15 and Mr. Vandiver Brown of Johns-Manville had a 16 conference with Dr. Leroy Gardner of Saranac, 17 New York, and Dr. Lanza and Dr. McConnell" -- 18 Jack's father. No relation -- "of the 19 Metropolitan Life Insurance Company." 20 Do you know who Dr. McConnell was? 21 A. Well, he was also, as indicated, 22 associated with Dr. Lanza and Met Life. I think 23 I once met McConnell also, uh-huh. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q. -- "with reference to the asbestosis 2 situation in the asbestos industry. 3 "As you no doubt know, 4 Johns-Manville and ourselves have been doing 5 considerable work in conjunction with the 6 Metropolitan Life Insurance Company in the way of 7 eliminating asbestos dust in our factories, and 8 we have made a very satisfactory job of it." 9 "I think the compensation laws in 10 the various states will become more rigid in the 11 next few years, and no doubt asbestos on account 12 of the advertising it has had lately will become 13 one of the compensation cases, and we should have 14 all the information we can possibly get to submit 15 to the compensation commissions of the various 16 states when the question of asbestosis comes up." 17 Then they discuss Dr. Gardner having 18 a dust chamber. 19 MR. McKENNA: Your Honor, may we 20 approach for a moment? 2 1 (At sidebar :) 22 MR. McKENNA: Mr. Fox doesn't think 23 it was preadmitted. HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1706 1 TEE COURT:' Which was the number? 2 MR. MCCONNELL: 213. 3 MR. FOX: Do you know if it was? 4 MR. McKENNA: Do you know if it was 5 preadmitted? 6 MR. McCONNELL: I will check. 7 THE COURT : Can I see it? 8 MR. MOTLEY : This is- a retyped 9 version so you can read it better. 10 MR. McCONNELL: It was. I mean, my 11 notes reflect this is preadmitted, Judge. 12 THE COURT: Okay. 13 MR. McKENNA: All right. 14 (End of sidebar." 15 BY MR. MOTLEY: 16 Q. He's talking about experimenting 17 with asbestosis and dust chambers with animals, 18 do you see that? 19 A. Yes. 20 Q. They say, "The idea of Mr. Brown and 21 myself would be to have four or five, or even 22 more if we could get them, asbestos manufacturers 23 take over the study by subscribing an equal HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 amount per year for three years, and then we 2 could determine from time to time after the 3 findings are made whether we wish any publication 4 or not. 5 "My own idea is it would be a good 6 thing to distribute the information among the 7 medical fraternity, providing it is of the right 8 type and would not injure our companies." 9 Now, Doctor, from a public health 10 standpoint, in the '30s, '40s, '50s and today, is 11 it proper to leave with a company who funds 12 research the right to decide whether to publish 13 it or not, depending on whether or not the 14 results help them or hurt them? 15 A. Well, it speaks for itself. It's 16 obviously not in the interest of the public 17 health. It's obviously in the interest of the 18 companies. 19 MR. MOTLEY: Excuse me. 20 BY MR. MOTLEY: 2 1 Q. Doctor, from this letter, can you 22 reach a conclusion as to whether or not the 23 Saranac Laboratory was free on its own to publish HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 the results of its studies without first getting 2 approval from the industry? 3 A. No, obviously they were not free. 4 They were restricted by the restraints imposed 5 upon them by the industries involved. 6 Q. I have Plaintiff's Exhibit 1905, 7 Your Honor. It's been preadmitted. 8 MR. McKENNA: Your Honor, can we 9 approach again? 10 THE COURT: Uh-huh. 11 (At sidebar:) 12 THE COURT: Can I see it? Is there 13 a question about whether it was preadmitted? .14 MR. McKENNA: Well, apparently that 15 was deferred, and the last document was 16 deferred. But I didn't want to come up again, 17 having interfered with the process again. 18 MR. McCONNELL: I missed that. 19 MR. McKENNA: The last document was 20 deferred according to our records, and this one 21 was deferred. 22 MR. McCONNELL: I don't have the 23 backup with me, but I personally went through the HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 transcript after we had our conference and I 2 produced this list, and that's all I have got to 3 go on. And it's free and clear of any footnote, 4 which means it was admitted. 5 MR. FOX: We did the same thing, and 6 it's indicated it was deferred. 7 MR. MCCONNELL: I mean, if -- 8 THE COURT: Do you recall why we 9 deferred it? 10 MR. FOX: Your Honor -- 11 MR. McKENNA: The only point, I just 12 need a ruling on it, that's all. 13 MR. MOTLEY: Your Honor, this 14 document was admitted against Raybestos, against 15 H. K. Porter. I don't know why it would have 16 been deferred. 17 THE COURT: I remember it, I just 18 don't remember -- I have no specific 19 recollection. Do you know what the objections to 20 it are? 21 MR. McKENNA: I assume the 22 objections are -- do we have an authenticity 23 objection to this? Is it a summary? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1710 1 MR. FOX: Yes, I think so. 2 MR. McKENNA: I think we object to 3 this on hearsay, relevance and 403. As I gather 4 from the prior rulings of the Sumner Simpson 5 depos ition with regard to authenticity, if you 6 want to overrule that -- 7 THE COURT: Right. I will admit 8 it. 9 MR. McCONNELL: Thank you, 10 Your Honor. 11 MR. McKENNA: Could I ask a favor? 12 Could you give us a list of the exhibit s you are 13 using ? We could avoid a lot of this if we have 14 it in advance. 15 MR. McCONNELL: This is on a wing 16 and a prayer, to be honest. I will try to make a 17 good faith effort of giving you the ones that are 18 coming up, if that's all right with Your Honor? 19 THE COURT: All right. 20 (End of sidebar.) 2 1 BY MR. MOTLEY: 22 Q. Do you have this? Did I take your 23 copy? HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1711 A. The November 20th? I have it. Q. This is a document, ladies and gentlemen, in 1936, again, relating to Saranac, November 20th, 1936, to Dr. Gardner. It's from 5 Vandiver Brown, the general attorney, 6 Johns-Manvi11e Corporation. 7 "At a meeting yesterday attended by 8 certain brake lining manufacturers, Mr. Simpson 9 and I were able to pres.ent to a fairly large 10 group of interested corporations the proposal 11 that one of your dusting chambers be engaged for 12 further experimentation with asbestos dust. 13 "The proposal was very well 14 received, and it appears that not less than 15 eight, and perhaps ten or more, corporations will 16 participate in financing these further 17 experiments along the lines discussed when we met 18 with Dr. Lanza and Dr. McConnell a few days ago. 19 "Accordingly, you may consider this 20 letter as an authorization for you to commence 2 1 the contemplated experiments with asbestos dust 22 for the purpose of determining more definitely 23 the causes and effects of asbestosis. It is my 1 HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1712 1 understanding that, among other questions which 2 it is anticipated these experiments will answer, I 3 are the following: 4 "That concentration of dust is 5 necessary -- what concentration of dust is 6 necessary to produce the fibrosis of the lungs 7 which is designated as asbestosis." 8 Now, is that the concept we have 9 been talking about, TLV? 10 A. Yes, that's it, uh-huh. 11 Q. Okay. "Whether exposure to asbestos 12 dust will produce asbestosis without the 13 existence of previous infection and whether the 14 x-ray changes found in advanced human asbestosis 15 can be reproduced in animals without infection. 16 "Whether the fibrosis produced by 17 asbestos is of the progressive type; that is, 18 will the fibrosis increase, once it has started, 19 after exposure to the dust is ceased." 20 What does that mean? 21 A. Well, that's an important aspect. 22 They wanted to know if once asbestos or fibrosis 23 starts, will it progress even if the animal is HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY removed from the dust exposure. 2 Q. And he talks about how much does it 3 cost. "it is our further understanding that the 4 results obtained will be considered the property 5 of those who are advancing the required funds, 6 who will determine whether, to what extent and in 7 what manner they should be made public. In the 8 event it is deemed desirable that the results be 9 made public, the manuscript of your study will be 10 submitted to us for approval prior to 11 publication." 12 What does that mean? 13 A. Well, that speaks for itself. 14 Obviously, any results will be subject to 15 censorship, essentially. 16 MR. McKENNA: Objection, 17 Your Honor. Move to strike. That's his 18 speculation about what may occur. It's not the 19 facts. 20 MR. MOTLEY: Let me ask a foundation 21 again, if I might? 22 THE COURT: Go ahead. 23 BY MR. MOTLEY: HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1714 1 Q. In fact, Doctor, were the results of 2 this study censored? 3 A. In fact, they were, of course. That 4 we know. 5 Q. And did Dr. Lanza participate in the 6 censorship? 7 MR. McKENNA: Objection, 8 Your Honor. If he's having this witness 9 summarize a bunch of documents, he ought to put 10 the documents in evidence. 11 MR. MOTLEY: Your Honor, he objected 12 to the Doctor making a comment. Now he's 13 objecting to the bottom line. / 14 THE COURT: I'm going to sustain 15 that objection. 16 BY MR. MOTLEY: 17 Q. Have you looked at, Doctor, a report 18 dated February 1943 by Dr. Gardner to Mr. Brown 19 of the Johns-Manville Corporation outlining 20 certain findings they made seven.years after this 2 1 study was funded? 22 A. I think so. I would have to see it, 23 though, to make sure. It sounds familiar. sss HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 MR. MOTLEY: I move Exhibit 1148 2 into evidence, Your Honor. 3 THE COURT: It will be received. 4 Was this preadmitted? 5 MR. McCONNELL: Yes, it was, 6 Your Honor. 7 THE COURT: Okay. 8 A. Yes . 9 Q. Yes, what? 10 A. What is your question about it? 11 Q. Well, I asked you if you had looked 12 at a report of Dr. Gardner to the sponsors of the 13 study? 14 A. Yes, I have seen that before, y es4 15 MR. McKENNA: Excuse me, 16 Mr. Motley. Could I see a copy of it? 17 Thank you. 18 BY MR. MOTLEY: 19 Q. All right, sir. Would you describe 20 in general terms for the jury -- I'm not talking 2 1 about the letter, but the outline -- 22 MR. McKENNA: Your Honor, I object 23 to him summarizing a document and telling what HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1716 the document says. The document speaks for itself . MR. MOTLEY: Your Honor, a scientific document does not speak for itself. 5 It needs expert interpretation. 6 THE COURT: Go ahead, you may 7 inquire of the witness. 8 MR. McKENNA: Judge, could I ask the 9 document be read and then he comment on it? 10 THE COURT: Okay. 11 THE WITNESS: Well, there is a 12 letter here -- 13 THE COURT: Go ahead and -- well, 14 wait a minute. Let me see this one. 15 MR. MOTLEY: It's 25 pages long. 16 What does he want me to do, read the whole 25 17 pages ? 18 MR. McKENNA: I just want the jury 19 to have all the facts. 20 MR. MOTLEY: Right.. 21 THE COURT: Okay. What is your 22 question? 23 MR. MOTLEY: Your Honor, I have ! 't . ' t* 1 HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1717 1 given him a copy of this and a copy of what was 2 subsequently published in the literature and 3 other documents that Your Honor has preadmitted. 4 And I would ask him to interpret the differences, 5 if any. 6 THE COURT: Okay. I'll permit 7 that. 8 MR. MOTLEY: Thank you. 9 MR. McKENNA: Excuse me, 10 Your Honor. You are going to permit him, without 11 reading the documents to the jury, the parts he's 12 complaining about, you are going to allow him 13 just to summarize them for the jury? 14 THE COURT: I'm going to allow him 15 to tell the jury what the difference between the 16 two documents is. 17 MR. McKENNA: Without showing them 18 the documents? 19 THE COURT: Yes. 20 MR. McKENNA: I just object to 21 that. 22 MR. MOTLEY: Your Honor, the jury 23 will have these documents in evidence HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY THE COURT: Go ahead, do it. 2 BY MR. MOTLEY: 3 Q. Doctor, what I'm trying to get you 4 to do is generally summarize what is contained in 5 Exhibit 1148, which is dated February 1943. 6 MR. McKENNA: Objection. 7 A. Right. This is a report written by 8 Dr. Gardner of his work with asbestos, and it is 9 transmitted to Mr. Vandiver Brown of the 10 Johns-Manville Corporation and so on. 11 And it's an outline of his 12 observations and findings that's divided into two 13 main parts, one is on human asbestosis, and the 14 other is on experimental asbestosis with 15 experimental animals. 16 And he describes in the human 17 asbestosis, the fact that he has studied 25 18 autopsy cases and is impressed with the fact that 19 ten of them are autopsies of workers with 2 0 asbestosis, and he's impressed with the fact that 2 1 ten of the 25 also have lung cancer. 22 And he mentions in the outline under 23 complications of asbestosis, both susceptibility HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 of infection and cancer of the lung. 2 On the experimental side of the 3 program, he describes various aspects of 4 asbestos, and then points out that he has 5 observed cancer of the lung in the experimental 6 animals. He says experimental data suggestive 7 but not proven. 8 He also -- excuse me just a minute. 9 I'm looking to see whether he gives the numbers 10 of the lung cancers in this. I think it's later 11 on. But he also comments on recommendations for 12 a new standard of safe atmospheric 13 concentrations, and he raises a question about 14 the threshold limit value which was recommended 15 at that time. He thinks that probably it needs 16 revision. 17 Then further on, under human 18 asbestosis, again there is more detail. And I 19 think it's important perhaps to quote -- 20 Q. What page are you on, sir? 21 A. This is page "I." It's several 22 pages in from the beginning here. 23 Q. Let me see where you are. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1720 A. It's page one. And under the caption "Complication of Asbestosis" -- Q. You have to slow down a little bit, Doctor. A . Sure. Q. Under "Complication of Asbestosis," is this where you are? A. Yes. He mentions cancer of the lung and he says -- MR. McKENNA: Judge, could we have the whole section read here starting with "Complication of Asbestosis," if that's -- MR. MOTLEY: I will be glad to do that. THE WITNESS: Sure. MR. MOTLEY: "Susceptibility to infection. "Tuberculosis. High incidence in English experience not duplicated in surveys of American plants. Available autopsy statistics deceiving because of selection of material. "Nontuberculous. The same reason probably applies. Should be checked by analysis HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY of absenteeism among asbestos workers. "Cancer of lung. Ditto, but there are now on record ten cases of lung cancer in 4 asbestos workers. Compared to the total number 5 of autopsies on asbestosis, this incidence is 6 excessive. No such frequency has been discovered 7 in silicosis or other forms of pneumoconiosis 8 except the Schneeberg mines of radioactive 9 ores." 10 What does that mean? 11 A. Well, those were famous in our 12 occupational health history. Those are mines in 13 central Europe of uranium, radioactive minerals. 14 And those miners had a very high rate of lung 15 cancer. 16 Q. "The evidence is suggestivebut not 17 conclusive that asbestosis may precipitate the 18 development of cancer in susceptible 19 individuals ." 20 A. Yes. 21 Q. Let me ask you a fewquestions about 22 that, Doctor. 2 3 A. Sure. acri? r r HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY Q. You have published you told us yesterday in 1948 that asbestos caused cancer, and you again published that in 1953. 4 A. That's right. 5 Q. And you told us yesterday about 6 Dr. Meriwether. Will you tell the jury again who 7 he was? 8 A. Well, Dr. Meriwether was the chief 9 inspector of factories in England, His Majesty's 10 chief inspector, which is equivalent to sort of 11 the head of OSHA here. 12 Q. Okay. Did Dr. Meriwether at any 13 time in the late '40s make any findings about 14 asbestosis and lung cancer? 15 A. Yes. He pointed out that there was 16 a high rate of lung cancer found in workers with 17 asbestos. Asbestosis, I should say. 18 Q. Did he compare the finding of lung 19 cancer and asbestosis with -- 20 A. Oh, yes. 21 Q. Explain that, please. 22 A. He also differentiated. He pointed 23 out there is a high rate of lung cancer with S9- M .U . . 4 k ' .V * V - - HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY workers with asbestosis, but not a high rate of lung cancer in workers with silicosis. In other words, the inference was that asbestos leads to lung cancer, but not 5 silica. 6 Q. Is that the same thing essentially 7 that Dr. Gardner is saying right here? 8 A. Yes, essentially that, uh-huh. 9 Q. Now, Doctor, did this whole first 10 part on human asbestosis that you have been 11 referring to ever get published in the medical 12 literature? 13 A. No, unfortunately, it was not 14 published. It was deleted. 15 MR. MOTLEY: Your Honor, I believe 16 this is preadmitted, 3949. 17 MR. McKENNA: Excuse me, could I see 18 the document? 19 Could we approach for a second. 20 (At sidebar:) 21 MR. McKENNA: Mr. Fox tells me that 22 you tentatively preadmitted this document, so if 23 you can just admit it, that would take care of HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1724 1 our objection. 2 MR. McCONNELL: I didn't hear you, 3 Peter. 4 MR. McKENNA: Tom says that he 5 believes it was tentatively preadmitted. 6 THE COURT: Is this one of the ones 7 I was waiting for some document that showed the 8 conspiracy or made the prima facie conspiracy? 9 MR. MOTLEY: Yes. 10 MR. FOX: You indicated some 11 reservations about it and we might well -- 12 MR. McCONNELL: I want to check that 13 because their track record up here has proved 14 wrong. We have gone back to the transcript. I'm 15 going to get the transcript. 16 THE COURT: I'll admit it, if it 17 hasn't been done. 18 (End of sidebar.) 19 BY MR. MOTLEY: 20 Q. Have you had a chance to review this 21 document, Doctor? 22 A. Yes, I have. 23 MR. MOTLEY: Mr. McConnell, have you HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1725 1 had a chance to get to the screen? 2 BY MR. MOTLEY: 3 Q. The date is October 22nd, 1948. Who 4 is it from? Mr. Brown of Johns-Manville to 5 Mr. Muehleck and Mr. Rohrbeck and it's on "Report 6 of Asbestos Experiments." 7 "You will note in the memorandum I 8 suggest eliminating reference to tumors" -- 9 MR. McKENNA: Excuse me, 10 Mr. Motley. Can we start at the beginning of the 11 document? 12 BY MR. MOTLEY: 13 Q. "What purports to be 'Part I ' of a 14 report by the Saranac Laboratory entitled 15 'Asbestos Pneumoconiosis' has been received. My 16 comments after a preliminary study are contained 17 in the memorandum attached. 18 "I solicit your views with respect 19 to the report and my comments and also your 20 advice as to how we should proceed from this 21 point. 22 "My comments are based on a study 23 of the text of the report only. I have not HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1726 studied the tables. I have not reread Dr. Gardner's various interim reports for the purpose of comparing them with this one. "In the event further comments are 5 suggested by study of the tables and interim 6 reports, I will write you next Monday. 7 "You will note in the memorandum I 8 suggest eliminating reference to tumors and also 9 to pneumonia. I also suggest that this report be 10 confined to the results of the experiments with 11 animals and not considered as the first part of a 12 study of the effect of asbestos dust on both 13 animals and human beings. 14 "I suggest this segregation because 15 I believe Dr. Vorwald, who has succeeded 16 Dr. Gardner at Saranac, will be difficult to deal 17 with" 18 What's the rest of that say, Jack? 19 A. If it comes to -- 20 Q. -- "suggesting theelimination of 2 1 anything that he" -- 22 A . Believes. 23 Q. -- "believes is even remotely ml * HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1727 covered by Dr. Gardner's notes. My information 2 from" -- 3 A . Derives from. 4 Q. -- "Johns-Manville's experience with 5 him in" -- there is the diatomaceous earth 6 experiments. 7 A . Yes. 8 Q. In fact, you got a letter in your 9 satchel about this, don't you? 10 A. Yes, I have. 11 Q. Maybe we will get a chance to show 12 that later. 13 "If the report is limited to the 14 animal experiments, our right to criticize and 15 suggest changes before publication, or even to 16 forbid publication, is unquestionable. If we 17 permit it to be made part of a report covering 18 more than the animal experiments, our position is 19 not so strong. 20 "A situation is developing with the 2 1 miners in Quebec that urgently requires that some 22 report based on Dr. Gardner's experiments be made 23 available as a counter-agent to opinions being 1ST- essays: HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1728 expressed and conclusions arrived at by Quebec physicians and officials upon the basis of surmise, social ideology, and inadequate 4 information. 5 "Time, therefore, is of the essence 6 and your prompt consideration of the report and 7 your advice as to procedure will be 8 appreciated." 9 Do you recall Dr. Pedley in 1930 10 saying that? 11 A. Yes, the same thing. 12 Q. Same thing, okay. 13 Now, sir, to your knowledge, did the 14 human asbestosis section ever appear anywhere in 15 the American literature as Dr. Gardner wrote it? 16 A. No, it did not. 17 Q. Let me ask you this. Did the 18 section saying we need a new TLV ever appear in 19 the American literature? 20 A. That did not either.. It would have 2 1 been very helpful if it had. 22 MR. MOTLEY: Your Honor, I believe 23 3965 has been preadmitted. 33 StESB#K2: HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1729 BY MR. MOTLEY: Q. This is dated two months later, December the 14th, 1948, it 's on the stationery 4 of the New York University and signed by 5 Tony Lanza. And who is it written to? 6 Dr.Vorwald, who succeeded Dr. Gardner ; correct? 7 A. Yes. 8 Q. "With respect to the asbestos 9 report, Part I, September 30th, 1948, a meeting 10 of the representatives of the underwriting 11 companies was held in New York. The report was 12 favorably received and it was the general feeling 13 that it was a most satisfactory and excellent 14 jo b . 15 "It was the feeling of this group 16 that a'll references to cancer or tumors should be 17 omitted -- Paragraph 75, Page 31, the 18 introductory paragraphs under 'Complications,' 19 Paragraph 92, Page 39. This request would 20 likewise call for the elimination of any tables 21 relating to this subject matter. 22 "The group felt that there might be 23 included under 'Conclusions' a reference to the SS sssssr: HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY nonprogressive character of the fibrosis produced by the asbestos." Next page. "It was decided after 4 these revisions have been concluded, the report 5 of these experimental studies should be published 6 as promptly as possible, preferably in the 7 Journal of Industrial Medicine. Any report on 8 human asbestosis should be separate and not a 9 part of this report." 10 MR. McKENNA: Could you read the 11 last paragraph? 12 BY MR. MOTLEY: 13 Q. "The above comprises the various 14 comments and suggestions which I do not think 15 involves any material change in the report. 16 Please let me know if you wish any further 17 information or discussions of the points raised 18 in this letter." 19 Now, sir, Dr. Lanza says what he 2 0 suggests being eliminated doesn't involve any 2 1 material change. 22 A. I don't know what he means by that. 23 Obviously the changes have been very significant, viT -i-i. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 very material, because they have eliminated 2 reference to the human aspects of the disease 3 and, of course, the reference to cancer. And 4 that was the most serious omission in the report. 5 Q. Now, in the -- we have been talking 6 about the human asbestosis part. 7 A. Yeah. 8 Q. Do you have -- can you find the 9 experimental part, sir?i 10 A. Yes, uh-huh. 11 Q. Page seven, I believe it is. 12 A. I think I have it here, yes. 13 Q. "Complications"? 14 A. Yes. Uh-huh. 15 Q. Now, this is a section that's 16 talking about the animal experiments, not humans; 17 right? 18 A. Yes, that's right. 19 Q. You see under "Complications," 20 "Cancer of Lungs"? 21 A. Yes. I see that. 22 Q. Now, if you look over on the next 23 page, sir, do they call it neoplasm or cancer? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1732 A. Yes. Well, neoplasm -- Q. No. Does he call it cancer or what? A. Well, let me see what he calls it 4 here. Well, in this item, he refers to it as 5 malignant tumors, which is the same as cancer. 6 Q. Well, turn back on the other page 7 and tell us what the section is. 8 A. You mean the previous page? 9 Q. Yes 10 A. "Cancer of Lungs," yes. 11 MR. McKENNA: Mr. Motley, are 12 going to read this to the jury at some point, 13 this section? 14 MR. MOTLEY: Your Honor, I object to 15 Mr. McKenna repeatedly interrupting the way I 16 conduct my examination. 17 THE COURT: Go ahead. 18 MR. McKENNA: Your Honor, I think 19 it's improper for him to allow his witness to 20 summarize the documents and select -- 21 THE COURT: I don't understand that 22 that's what he's doing. But I think it's 23 perfectly appropriate to have a person who is an i i .svrysss & szjsszii HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1733 expert summarize the content of the document. BY MR. MOTLEY: Q. Doctor, my question very simply is 4 what did Dr. Gardner call it? Did he call it 5 benign or cancer? 6 A. He called it cancer, no question 7 about that. 8 Q. Is a benign tumor the same thing as 9 a malignant tumor? 10 A. No. A malignant tumor is cancer. A 11 benign tumor is a growth which is not a cancer, 12 not good to have it either. 13 Q. Turn to pa ge eight , please. 14 A. Sure . Yes , I have page eight. 15 Q. All right. Let's look at what his 16 'ere . Up, please. 17 Dr . Gardne r says, "These 18 observations are suggestive but not conclusive 19 evidence of a cancer stimulating action by 20 asbestos dust. They are open to. several 2 1 criticisms. The strain of mice was not the same 22 in the asbestos experiment as in many of the 23 others cited. Apparently, the former were HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY unusually susceptible. Not enough animals survived in the dust for longer than the 15 months apparently necessary to produce many 4 tumors. There were no unexposed controls of the 5 same strain and age and no similar controls 6 exposed to other dusts. 7 "It is hoped that this experiment 8 can be repeated under properly controlled 9 conditions to determine whether asbestos actually 10 favors cancer of the lung." 11 And in Paragraph 5 -- can you look 12 up a little bit, sir? 13 A. Yes, okay. 14 Q. "Of elevenmiceinhaling long fiber 15 asbestos for 15 to 24 months, eight developed 16 malignant tumors." Malignant means cancer? 17 A. Right. 18 Q. "And six of them hadtumorsin other 19 organs. The incidence rate of 81.8 percent is 20 excessive." 2 1 MR. McKENNA: Your Honor, I would 22 request paragraphs three to four be read also. 23 THE COURT: Go ahead. I think sEpn HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1735 that's fair. BY MR. MOTLEY: Q. "Some strains of white mice do 4 develop tumors without apparent cause. 5 "Such a strain of white mice was 6 unintentionally used in three inhalation 7 experiments with asbestos." 8 And let's look at 7. "As 9 controls" -- what does that mean? 10 A. A control in an experiment, a 11 control is simply a way of making a compar ison. 12 For example, you administe r a given drug to a 13 group of patients for dise as e , and then yo u have 14 another group of patients wi th the same di sease, 15 let's say, but you give th em a sugar p i l l . It 's 16 not a drug. They are a co nt ro1, you see . 17 It's a way of comparing, in this 18 case, you have mice who ar e exposed to the 19 asbestos dust, and another group of mice that are 2 0 controls that are not expo sed, and you then 2 1 examine them and see what happens to them. 22 Q. "As controls, we have only the 23 experience with mice in ot her dust experiments." K5S1 s '1 y v ? v ` ** _ HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY And then he mentions pure quartz? A. Yes. Q. What disease does pure quartz cause? A. Quartz, of course, causes silicosis. 5 Q. So in the animal experiments, he was 6 comparing the lung cancer from asbestos with the 7 lung cancer from silica; right? 8 A. Exactly, yes. 9 Q. The same thing he was doing with the 10 humans; right? 11 A. Exactly, yes. And similar to the 12 observations of Dr. Meriwether, whom we referred 13 to earlier, where he found that those people 14 exposed to asbestos got excessive lung cancer but 15 those with silicosis did not. And apparently 16 Dr. Gardner got similar results with the mice. 17 MR. MOTLEY: Your Honor, what time 18 did you want to take a morning recess? 19 THE COURT: Now would be fine if 20 it's appropriate? 21 MR. MOTLEY: Yes, sir. 22 THE COURT: We will take a recess, 23 folks, for about ten minutes. IggyVTi HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 173 (A recess is taken.) (In open court with a jury present:) 3 THE COURT: Members of the jury, 4 Mr. Motley indicated yesterday folks, can we 5 get settled, please? 6 Mr. Motley indicated yesterday when 7 he began this line of questioning with Dr. Abrams 8 that this evidence is applicable only to 9 Metropolitan Life. You should understand it has 10 no application to any of the other defendants. 11 BY MR. MOTLEY: 12 Q. Dr. Abrams, have you reviewed 13 correspondence between and among the sponsors and 14 Dr. Lanza prior to the publication of the version 15 of Dr. Gardner's original work which I'm going to 16 show you in a moment in 1951? 17 A. Yes. Yes, I have seen that 18 correspondence. 19 Q. What was the companies' and 20 Dr. Lanza's reaction in general terms, and then I 21 will show you a document to the section on 22 cancer? 23 A. Well, they very definitely SS3 HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 recommended that it be excluded, that no word 2 about cancer be mentioned in the report. 3 Q. 3868 is already in evidence. It's 4 November 12th, 1948, it's from Vandiver Brown of 5 Johns-Manville, and I want to just concentrate on 6 this. "it was the unanimous opinion, however, 7 that the reference to cancer and tumors should be 8 deleted, and this is a point we will insist upon 9 for the following reasons. IO "The experiments were not directed 11 toward determining the incidence, if any, of 12 cancer as a result of asbestos dust exposure. 13 "Dr. Gardner indicated prior to his 14 death that he believed this aspect should be made 15 the subject of a separate study, which would take 16 from two to three years. 17 "Dr. Gardner also indicated that he 18 believed the question of cancer susceptibility 19 should be omitted from the report. This 20 statement is contained in his letter to me of 21 February 24, 1943, with which he enclosed his 22 outline of a proposed monograph on asbestosis. 23 "It also appears from Dr. Gardner's HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1739 1 outline that certain strains of white mice 2 develop tumors without apparent cause and that 3 'such a strain of white mice was unintentionally 4 used in three inhalation experiments with 5 asbestos. 6 MR. McKENNA: Excuse me. Could you 7 read the next paragraph. 8 BY MR. MOTLEY: 9 Q. "A considerable number of other 10 changes in the report will be suggested to 11 Saranac, but they relate to form and to emphasis 12 rather than to substance, and I believe there is 13 no necessity of detailing them in this report to 14 you. " 15 I'm glad you asked me to do that. 16 Do you think eliminating the whole section on 17 human asbestosis related to form rather than 18 substance ? 19 A. Do I think that it's related -- it 20 certainly related to substance, not form, yes. 2 1 Q. Do you think that the suggestion 22 that TLV wasn't any good is related to form and 23 not substance? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY ]_ A. It's related to substance, of 2 course, yeah. 3 Q. Is that something as a public health 4 expert you would have liked to have known? 5 MR. McKENNA: Your Honor, I object. 6 Because this letter is referring to a report 7 Mr. Motley has not shown the witness, and the 8 question he is asking is trying to relate this 9 letter to the other document, the outline. 10 MR. MOTLEY: Your Honor, the Doctor 11 has seen the report. That's a misstatement of 12 fact by Mr. McKenna. We move to introduce it 13 right now, Plaintiff's Exhibit 4170.1. 14 BY MR. MOTLEY: 15 Q. Do you think, Doctor, that ten 16 people who died of asbestosis and also had lung 17 cancer relates to form or substance? 18 A. Substance, of course. It's 19 unfortunate it wasn't reported or wasn't 20 published, I should say. 21 Q. Now, this is Exhibit 4170. Have you 22 looked at that for us, too? 23 A. Yes, I have seen that. SSire 559fiS&2rS5 HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1741 Q. Exhibit 3963 has been preadnitted, sir, and it's a letter dated September 30th -- excuse me, November 30th, 1948, from Mr. Woodard 4 of Johns-Manville to Mr. Gatke with a copy to 5 A. J. Lanza, Metropolitan Life Insurance 6 Company. 7 "As requested at the meeting, I have 8 discussed with Dr. Lanza his taking up with 9 Saranac the matter of revising the report and 10 putting it in the shape that we agreed upon. 11 Dr. Lanza as agreed to do this for us. I might 12 add that this is just another instance where 13 Dr. Lanza is freely giving his time and effort in 14 helping us along on this program, and I think he 15 deserves the thanks of all of us." 16 Now, let's see what Dr. Lanza did 17 for him. I want to show you the section, sir -- 18 I don't have but one copy -- it says revised, 19 January 31st, 1949, and over on the section on 20 cancer, let's see what Dr. Lanza did for them. 21 MR. McKENNA: Your Honor, I object 22 to Mr. Motley repeatedly testifying. He says 23 this is Dr. Lanza's handwriting when it's * a c tyn f;v*v.; HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1742 1 D r . Vorwald's . 2 THE COURT: Stop. Absent a witness 3 to testify to that, then the jury is going to 4 have to draw whatever conclusions it can. But I 5 don't think editorial comment is appropriate 6 about the evidence by either counsel. 7 BY MR. MOTLEY: 8 Q. Since he said what he said, "I might 9 add that this is just another instance where 10 Dr. Lanza is freely giving his time and effort in 11 helping us along on this program, and I think he 12 deserves the thanks of all of us." 13 Did I read that right? 14 A. That's correct, yes. 15 Q. "I have discussed with Dr. Lanza his 16 taking up with Saranac the matter of revising the 17 report and putting it in the shape that we agreed 18 upon. Dr. Lanza has agreed to do this for us." 19 Did I read that right? 20 A. Yes, uh-huh. 21 Q. I want to show you the cancer 22 section. 23 MR. McKENNA: Objection, Your Honor. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 The section is not labeled cancer. Mr. Motley is 2 testifying again. 3 THE COURT: My recollection, it's 4 labeled neoplasm or something. 5 MR. MOTLEY: Neoplasm. 6 THE COURT: Go ahead. You may ask 7 the question. 8 BY MR. MOTLEY: 9 Q. What does neoplasm mean to you, sir? 10 A. Well, neoplasm is a fancy word that 11 literally means new growth, but in medical terms 12 we usually think of it.as cancer. Neoplasm is a 13 term that doctors often use to refer to cancer. 14 Q. What did Dr. Gardner call that 15 section we looked at earlier? 16 A. Well, I can't read it from here or 17 see it, but I think he used the term cancer, if I 18 recall. 19 Q. Section III, what did he call it? 20 A. He called it "Cancer of the Lungs." 21 Q. Do you see this, sir. Neoplasm, 22 Paragraph 92? 23 A. Yes, I see it now. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY ' 1 Q. Okay. Do you see anything -- what 2 is that, an X out? 3 A. You mean scrawled across it? Yes. 4 I think it says "Out," yes, that's right. 5 MR. McKENNA: Your Honor, I would 6 request that the section be read to the jury now 7 that they have been directed to the big "Out." I 8 think we should read the text. 9 THE COURT: Go ahead. 10 MR. MOTLEY: It's in evidence, 11 Your Honor. It's our only copy. It's hard to 12 read. I will do the best I can. Do you have a 13 copy? 14 MR. McKENNA: Here is a clean copy. 15 MR. MOTLEY: It's retyped? 16 MR. McKENNA: No. That's an 17 original document. 18 MR. MOTLEY: Where is the X? 19 MR. McKENNA: It's not there. 20 MR. MOTLEY: I'm just asking him. 21 He said it was the original one, and I want to 22 know where the X was. 23 "No specific experiment was HERBERT A B R A M S , MD DIRECT BY MR. MOTLEY 1 conducted to determine where the inhalation of 2 asbestos favors the development of neoplastic 3 disease, but certain observations on the subject 4 were recorded in the outline of the proposed 5 monograph on asbestosis submitted by the late 6 Dr. Gardner in February 1943. 7 "In it he called attention to the 8 high incidence of lung cancer among mice inhaling 9 lung fiber asbestos. In his experimental notes, 10 however, he referred to these lesions as 11 adenomas. There is an important distinction 12 between adenoma and cancer which should be made 13 clear. A cancer is a tumor." 14 Do you agree with that? 15 A. Yes, a cancer is a tumor, yes. 16 Q. "Or neoplasm"? 17 A. That's right. Yes. 18 Q. "Capable of local invasion and 19 destruction of tissue which can distribute cells 20 through the lymphatics or blood stream to produce 21 isolated foci from which new tumors develop. 22 This phenomenon of dissemination is known as 23 m e t a s t a s i s ." g HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1746 1 What does metastasis mean? 2 A. It simply means spreading of the 3 cancer. 4 Q. "And any tumor which exhibits it is 5 a malignant growth of which cancer is one type. 6 And adenoma, on the other hand, is a so-called 7 benign or nonmalignant tumor, neoplasm, which may 8 or may not be capable of local invasion but which 9 does not metastasize. 10 "In order to clarify the exact 11 nature of theselesions, the pathological 12 material is being carefully examined. Since it 13 is felt desirable to have the benefit of 14 Dr. Vorwald's judgment, a review of the data on 15 this subject is being postponed until after his 16 return from Europe rather than delay the entire 17 report. 18 "Further discussions will be 19 reserved for a supplement to be issued later." 20 MR. McKENNA: Thank, you. 21 BY MR. MOTLEY: 22 Q. Now, I have a document here that -- 23 are you familiar with that, sir? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1747 A. Yes, I am. Q. What is that? A. It is entitled, "Experimental Studies of Asbestosis," by Arthur Vorwald, Thomas 5 Durkin, Philip Pratt in the A.M.A. Archives of 6 Industrial Hygiene and Occupational Medicine, 7 January 1951. 8 Q. Is this what eventually was 9 published in the literature? 10 A. Yes. This is a publication, yes. 11 Q. And this was what was published for 12 the doctors to see; right? 13 A. That's correct. 14 Q. Have you looked at that to see 15 whether or not there is anything about cancer in 16 there ? 17 A. Cancer has been carefully omitted 18 from that report. 19 Q. Anything about the TLV not any good? 20 A. That also has been deleted from it. 21 Q. Anything in there about human 22 asbestosis ? 23 A. Also deleted. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1748 Q. Anything in there about Dr. Gardner's conclusions about lung cancer with asbestosis? 4 A. Also omitted. 5 Q. Now, this is at the bottom of what 6 they published for the world to see. "Although 7 partial reports and informal reviews of some the 8 experiments had been given from time to time by 9 Dr. Gardner, this paper presents for the first 10 time a complete survey of the entire experimental 11 investigation." 12 Is that true? 13 A. Obviously it was not complete 14 because they omitted these important aspects that 15 we just mentioned. 16 Q. And so to be clear, Doctor, the 17 experimental part of this he called part two 18 Part one was human asbest osis ? 19 A. That's right. 20 Q. And part two was experimental 2 1 asbestosis? 22 A. Correct. 23 Q. Correct? Where in the paper, part Si HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY one, human asbestosis, or part two, experimental asbestosis, did he recommend that the TLV was no good? 4 A. Well, he recommended it in his -- 5 Q. In part two? 6 A. -- in his material that he left on 7 his death, yes. But of course, it was not 8 published. 9 Q. But was it in part two? 10 A. Oh, yes, I think that was part two. 11 Q. And part two was entitled 12 experimental asbestosis? 13 A. That's right, uh-huh. 14 Q. Part two, experimental asbestosis, 15 recommendation of a new standard of safe 16 atmospheric concentrations of asbestos dust? 17 A. Yes. 18 Q. Mow, Doctor, you are not a mouse 19 specialist, are you? 20 A. No, not particularly. I haven't 2 1 studied that particularly. 22 Q. Have you set a few traps for mice in 23 your life? MfiLr-rjrf---- -- HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1750 1 A. That I have. 2 Q. There are doctors who are mice 3 specialists ; right ? 4 A. Well, those who use them in 5 experimentation, sure. 6 Q. And you are not telling this jury 7 you are one of those, are you? 8 A. That's right, I'm not that kind of 9 an investigator. 10 Q. Why -- you have told this jury that 11 I think the human asbestosis and human cancer, 12 animal cancer and TLV is no good, should have all 13 been published. Will you explain your answer in 14 light of the fact you are not a mouse expert? 15 A. Well, your question is why would it 16 have been important ? 17 Q No, sir. Let me 18 A. Yes . 19 Q. You have already told the jury that 20 the human asbestosis section should have bee n 2 1 published including the part about cancer in 22 humans; co rrect? 23 A. Right. lu ji r+m JTH V HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1751 Q. You have told the jury that the experimental animal study that mentioned cancer should have been published? 4 A. Yes, that's right. 5 Q. And you told them that this part 6 about the TLV wasn't any good should have been 7 published; correct? 8 A. Correct. 9 Q. Now, I want you to explain to the 10 jury why you think it's important, since you are 11 not a mouse doctor, for all of that to have been 12 published? 13 A. Well, I think it would have been 14 vital to have published that particularly at that 15 time in history because it would have accelerated 16 our knowledge and would have prevented a lot of 17 loss of life and misery which have occurred since 18 by people being exposed to asbestosis. 19 So if we had had that knowledge at 20 that time, we would have been able to develop 21 preventive measures, would have been able to 22 control it and prevent a lot of human suffering. 23 MR. McKENNA: Your Honor, I move to itSaKXMZbj HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1752 1 strikei th e answer as speculative. There is no 2 basis for the answer at all . 3 THE COURT: Overruled. 4 MR. MOTLEY: Your Honor, I didn 't 5 hear the ruling. 6 THE COURT: I said overruled. 7 MR. MOTLEY: The answer stands, 8 thank you 9 BY MR. MOTLEY: 10 Q. Now, Doctor , in the '40s and '5i0s 11 and up un'til Dr. Selikof f in 1964, did some 12 doctor S S'till cla im asbe stos didn't cause cainet 13 A. Oh, yes. That was debated over a 14 number of years, that's true . 15 Q. I'm going to hand you 16 A. That 's why it would have been 17 important to have published this material, 18 because it would have helped to resolve that 19 question. 20 Q. I've handed you an article by 2 1 Dr. Richard Doll. 22 A . Yes . 23 Q Tell the jury about Dr. Doll? isSas HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY A. Dr. Doll is -- I think he's still living -- is a famous scientist in England, and 3 well known in this country as well, and he's done 4 a number of studies on asbestos as well as other 5 health issues. And he published some of the 6 important studies of asbestos workers. This one 7 is entitled "Mortality from Lung Cancer in 8 Asbestos Workers" published in the British 9 Journal of Industrial Medicine in 1955. 10 Q. Now, if you look at the second, the 11 bott.om of the first column, do you see a 12 discussion by Dr. Doll, of people who disbelieved 13 or still wrote that asbestos didn't cause cancer 14 15 A. Yes , I see that. Shall I read that? 16 Q. Yes , sir, please dp . 17 A. Well, I'll start with, "The majority 18 of workers, parentheses, cited by Hueper, 1952." 19 Hueper, incidently, was an American 20 scientist. 21 "The majority of workers, cited by 22 Hueper in 1952, consider that a causal 23 relationship between asbestosis and lung cancer HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY is either proved or is highly probable, and that the reality of the relationship was agreed at the recent International Symposium on the Endemiology 4 of Lung Cancer, Council of the International 5 Organizations of Medical Sciences in 1953. A 6 minority, however, remains skeptical." 7 And in parentheses, he names 8 Cartier -- 9 Q. Cartier was with the Quebec Asbestos 10 Mining Association, wasn't he? 11 A. That's right. Cartier, a Warren, 12 and according to Hueper, Lanza and Vorwald. 13 Q. We know who Lanza is. We know who 14 Vorwald is. 15 A. That's right. 16 Q. We know who Cartier is. 17 Do you know who this guy Warren is? 18 A. I don't recall offhand who Warren 19 was. 20 Q. Do you know how long Dr. Lanza and 2 1 Dr. Vorwald and Dr. Cartier and other people 22 associated with the asbestos industry claimed 23 that asbestos didn't cause cancer? HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1755 1 A. How long? 2 MR. McKENNA: Objec tion, Your Honor, 3 A. I don't recall now. 4 MR. McKENNA: It mi sstates the 5 document. 6 THE COURT: Okay. He doesn't know 7 the answer anyway. 8 BY MR. MOTLEY: 9 Q. All right. I want to move to 10 another section, Your Honor. I hope I don't have 11 more than about fifteen minutes left. 4813. 12 Now, I want to refr esh the record 13 here. When you were talking yes terday about 14 diatomaceous earth and you first started going to 15 the Johns-Manville facility, you told the jury 16 that you were reassured by the company. And what 17 did they tell you exactly? 18 MR. McKENNA: Objec tion, 19 Your Honor. This has been gone over yesterday in 20 great -- several times. 2 1 MR. MOTLEY: I want to tie it in to 22 something. 23 THE COURT: Go ahea d. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY BY MR. MOTLEY: Q. What were the words you used? A. Well, they tried to show me that 4 there were no new cases developing, that in 5 essence the hazard was under control. 6 Essentially that's what they told me. 7 MR. MOTLEY: Your Honor, this is 8 preadmitted Exhibit 4813. 9 BY MR. MOTLEY: 10 Q. This is the annual report, ladies 11 and gentlemen, of the Metropolitan Life 12 Industrial Health Section, 1945. I want to 13 publish this part. 14 "Mr. W. G. Hazard, director of the 15 Industrial Hygiene Division of the Department of 16 Health of New Jersey, was ordered by the War 17 Production Board." What was that? 18 A. Well, that was a board or an agency 19 set up by the federal government during World War 20 II, War Production Board. 21 Q. "To make an investigation of the 22 plant of the Johns-Manville Corporation at 23 Manville on the basis that there were a number of HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1757 unhealthy working conditions in the plant accounting for a large labor turnover. "Due to the fact that we have 4 periodically been surveying this plant, 5 Mr. Hazard asked that we make the survey. Our 6 investigations indicated that the asbestosis 7 hazard was adequately controlled and had been for 8 a number of years. Mr. Hazard accepted our 9 findings and made his report to the War 10 Production Board. The case was closed." 11 Okay. That's essentially the same 12 thing they told you; right? 13 A. Same thing. 14 Q. Well, let's look at what wasreally 15 happening in that plant. Exhibit 510. 16 MR. MOTLEY: It's been preadmitted, 17 Your Honor. 18 BY MR. MOTLEY: 19 Q. Here is the Industrial Hygiene 20 Foundation of America. Do you see that, sir? 21 A. Yes. 22 Q. Is that the same groupthat Met Life 23 and Johns-Manville tried to get you to go along HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 with the study? 2 A. Exactly. 3 Q. Report of Preliminary Dust 4 Investigation for the Asbestos Textile Institute, 5 June 19 47 ; okay ? 6 Page 15, sir. Will you look at 7 that? 8 A. Okay. 9 Q. "Plant J has countedpotential cases 1 of asbestosis amounting in number to about 20 11 percent." 12 A. I see that. 13 Q. Does that sound likethat plant was 14 under control? 15 A. Hardly. That's quite a high 16 percentage. 17 Q. Guess what Plant J was? Do you know 18 what Plant J was, sir? 19 A. I don't recall Plant J. 20 MR. McKENNA: I don't think he 21 should be able to speculate. 22 THE COURT: Correct. 23 MR. MOTLEY: Well, I have got the HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1759 1 full report. I will put it in evidence. 2 BY MR. MOTLEY: 3 Q. Assume that Plant J was Manville, 4 New Jersey. 5 MR. McKENNA: Objection, Your Honor. 6 A. Yes. I didn't know what you were 7 referring to. Plant J is -- 8 THE COURT: Sustained. 9 THE WITNESS: It's the same plant 10 that is referred to in this recommendation by the 11 War Production Board. 12 MR. MOTLEY: Thank you. 13 MR. McKENNA: Move to strike the 14 response. 15 MR. MOTLEY: Your Honor, it's in 16 evidence. It says Plant J. 17 MR. McKENNA: Your Honor -- 18 THE COURT: Where does it say that? 19 MR. McKENNA: Where does it say 20 that? 21 MR. MOTLEY: It's in evidence. I 22 will have to get the original over here after 23 lunch. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1760 1 2 us ? MR. McKENNA: Can you give it to 3 MR. MOTLEY J I wil 1 give it to you. 4 MR. McKENNA: I th ink it's improper 5 for the witness 6 THE COURT: If he doesn't know 7 independ ently, I think th e objection is well 8 founded. 9 MR. MOTLEY: I can ask him 10 hypothet ically, can't I? 11 THE COURT: If you can connect it 12 up. 13 MR. McKENNA: He 's not asking an 14 expert opinion. 15 THE COURT: Let's hear whether he i: 16 asking him an expert opin ion. 17 MR. McKENNA: The question he posed 18 w a s n 't . 19 BY MR. MOTLEY: 20 Q. Dr. Abrams, did I show you a 21 document last ni<ght that showed what Plant J was 22 A. Yes , you did . Whe n you asked me th 23 question , I didn 't rememb er the alphabetical HERBERT ABRAMS, MD -- DIRECT BY MR. MOTLEY 1761 1 designation, but I recall that you showed me that 2 data. 3 Q. Let me ask you to assume that Plant 4 J was Johns-Manville. 5 A. Manville, yes. 6 Q. Does that indicate to you, sir, 7 whether or not that plant was under control? 8 A. Well, obviously it was not under 9 control. They had a 20.percent attack rate of 10 asbestosis in their workers, so that it was 11 contradictory to the statement earlier that it 12 was adequately controlled. 13 Q. Finally, sir, you have told this 14 jury that you, Herbert Abrams, knew that asbestos 15 caused disease in the '40s, have you not? 16 A. Oh, yes. That's correct. 17 Q. And you have testified here and on 18 previous occasions there was sufficient 19 information in the literature to establish that 20 asbestos was a hazard to human beings at least in 21 the '40s? 22 A. No question. By 1930 it was very 23 well established. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 Q. Who were the only people that didn't 2 know that asbestos would kill you? 3 A. Well, the only people -- 4 MR. McKENNA: Objection, 5 Your Honor. 6 A. -- were the most important people, 7 the working people who were exposed to -- 8 THE COURT: Overruled. 9 A. -- to asbestos. They were not given 10 the information, unfortunately. 11 Q. You yourself wrote articles in 1948; 12 correct? 13 A. That's correct. 14 Q . 19 53? 15 A . Yes. 16 Q. Here is one you wrote in 1961; 17 correct? 18 A. Yes, that's right. 19 Q. Did you make presentations at 20 medical groups? 2 1 A. Yes. Well, this one I believe was a 22 presentation I made to the National Safety 23 Council in that year, I believe it was 1961. HERBERT ABRAMS, MD DIRECT BY MR. MOTLEY 1 National Safety Congress, yes. 2 MR. MOTLEY: I will pass the 3 witness, Your Honor. Thank you, Doctor. 4 Oops, excuse me. 5 BY MR. MOTLEY: 6 Q. Doctor, every expert who takes the 7 witness stand is asked this question. Have you 8 testified before ? 9 A. I have, yes . 10 Q. On numerous occasions? 11 A. More or less, y es . 12 Q. And you charge a fee for your time ? 13 A. I do. 14 Q. And you expect and hope to be paid? 15 A. I hope so. 16 MR. MOTLEY: I don't see Mr. Segal 17 in here. I was able to blame him the other day. 18 I hope you get paid too, sir. Thank you. 19 MR. McKENNA: Your Honor, it may 20 take a few minutes to get set up. 21 THE COURT: Why don't we do the 22 general questioning by the other defendants 23 first. Can we do that?