Document yzjOGXgXdV26MbeM6e93ZL92

-, _ `I1 O lol STATE OF TLLTNOTS) 1 COUNTY OF C O O K) sy ; 7A~ THE CIRC??IT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT - LAW DIVISION LAWRENCE KTTRTNSFT, Plaintiff -vs- 85 L 09338 METAL LUBRICANTS COMPANY diid MEDALIST CHAMPION SCFFW COMPANY, DeHtl(ian i:5 vO OWN Co pwo Tl,e coti1 iwjeCa djseov~ry deposition of RAYMOND P . HARRISON, A-f .S ., Pt1 .P ., was taken by NICHOLAS W . rIGTOVANDT7, C .S .R ., Not ary Public, pursuant to fi}'le ap~,ll~ .~i,lr pnov .-iov5 of fire Illinois i'o<;e of Civil Peoc.~durF and It1~ R,-i7.es of tkle Supre7ue Coati of the St :t1-:r of Illinois, per ciiniiiy 11-It the tnkiny of .viis f<~,: ',he purpose of discover-y, d,- 20 North Clark Alieet, in the City of Chicago ; Cook County, Il.lii!oi5, currinneiiciny at appruhi!!!ai :ely 10 :1Q o'clock d .111 . ,)n 1-hr 19th (Tay- of November, A . D ., 1990, 105 West Madison Street '"- Chicago, Illinois 6060] (712) )82-8776 V There were pfesent clurity the taking of this devosition the f(jll(-)witU counsel : O O O ~ ', HILFMAN & FOGEL, P .C ., by Mr . Robert L . Fogel ; On behalf of the Plaintiff ; TRESSLFR S6DERSTROM MALONEY & PRIESS, by Mr' . Gary T . ja On behalf o MN<zal st Champion Screw Company ; CASSIDAY SCHADE & GLOOR, by Mr . Bradford D . Ruth, Ou behalf vi Metal Lubricants C<>mpaiiy . 103 West Madison Stray Chicago, IWnois 60602 (312) 783-8776 1 INDEX 3 THE WITNESS Raymond D . Harbison, M .S ., Ph .D . 5 Examination by Mr . Roth 6 Examination by Mr . Jansen r 8 LXHIBITS 9 Rarbison Deposition Exhibit No . 1,2 10 No . 3,4 No . 5,6 1l No . 7 Na . 8 12 No . 9 No . 10 13 No . 11 No . 12 14 1J LU 17 H 19 ZU 21 22 23 2-A atti lair court reporters p.c . PAGE q 231 5 84 193 194 195 196 197 200 201 3 i (witness sworn) MR . ROTH : Would you state your name tar the 3 record, sir . MR . HARBISON : My name is Raymond Harbison . 51 RAYMOND D . HARBISON, M .S ., Ph .D ., called as s witness herein, having been first duly sworn, was examined upon oral interrogatories and testified as follows : EXAMINATION 10 by Mr . Roth : 11 Q What is your occupation? 12 A I am a toxicologist . 13 Q And what is a toxicologist? 14 A A toxicologist is an individual, a 15 scientist, who studies the harmful effects of substances 16 on the liv ing system . 17 Q You've been retained as an expert in this case, sir? 18 19 A Yep, I have . 20 Q You've been retained oon behalf of the 21 plaintiff, correct? 22 A I have been working for Mr . Fogel . 2,3 Q For what reason were you retrained? What 24 was the purpose of your analysis and evaluation in this ~atti lair court reporters p.c. 4 case? Z A To evaluate the exposure of Mr . Kubinski 3 end to determine whether or not that exposure could have resulted in the dermatitis suffered by Mr . Rubinaki . Q Were you asked to evaluate a specific h chemical or substance with respect to that work? A Yes, sir . Q And what was that, sir? A The substance was Metal Lubricants SV-6 . 10 Q I think -- just as a correction, was it 11 Metalite SV-6? 12 A That's the name of the product, right . 13 Q It's made by Metal Lubricants? 14 A Correct . l,. Q Any other chemicals that you've evaluated 16 or assessed in this case? A No, sir . 17 18 Q I just have a couple questions about your curriculum vitae . 19 20 I have marked -- S want to show you what's been marked as Aarbison Exhibit No . 1 . Could you 21 2z review that and identify it for the record . A Yes, air . This is a copy of my curriculum 23 vitae . 24 patti )lair court reporters p.c . 5 Q And it is composed of 2? pagers, is that correct? g A That is correct . Q Doctor, is it current as of today? A There may be a paper or abstract which is not on here, but, I believe, nearly current . Q With the exception of additional papers or abstracts, would it be accurate as of today's date in terms of the other material pertaining to your 10 background? 11 A I believe so . 12 Q When did you receive your Ph .D . in 13 pharmacology and toxicology? 14 A 1969 . 15 Q You are not a medical doctor, is that 16 correct? 17 A That is correct . 18 Q Is there a demarcation, Doctor, where 19 toxicology stops and medicine begins? 20 A Medicine is the diagnosis of diseases . 21 Toxicology is the determination of the causes of diseases . 22 23 Q Does toxicology include establishing causal 24 relationships between exposure to certain substances and atti lair court reporters p.c. S certain physiological responses? z A Yes, sir . Q Are you an industrial hygienist? A No, sir, I am not . I use industrial hygiene in the practice of toxicology . Q Are you an epidemiologist? r A I would use epidemioloqy in the practice of toxicology, but I am not an epidemiologist . Q You rely on epidemiological studies in your 10 analyses? 11 A I believe so, yea . 12 4 You are not a trained epidemiologist? 13 A That is correct . 14 Q On page 6 of your CV you indicate you were 1 certified i n general toxicology 1n 1982? 16 A Yes, sir . 17 Q Can you explain what organization does the certification? 19 A Yes, air . It's certification by the 20 Academy of Toxicological Sciences . 21 4 What is required for certification? 22 A It is a peer review process, submission of 28 credentials and other information and reviewed by s peer z-a group . atti lair court reporters p.c. 7 Q When was that certification first made available to toxicologists? 3 A I don't know the answer to that . MR . FOGEL : Academy of Toxicological . . . THE WITNESS : Sciences . MR . ROTH : Q Are you on the board or do you occupy any administrative position with that academy? A Na . Q Have you ever? 10 A No, sir . 11 Q Referring to your education and experience 12 on page 5 . I just want to go over a few of these, and 13 the first one is about halfway down the page . It 14 indicates that you acted as a toxicology consultant for 15 Texaco, is that correct? 16 A Yes, sir . 17 Q Can you tell me what that was all about . 18 A I can tell you a little bit about it . As n 19 consultant to Texaco I have reviewed toxicological Z studies performed for Texaco . I have reviewed the 21 quality assurance quality control of those tests . I 22 have reviewed their product safety information . I have reviewed their material safety data sheets . 23 24 Those would be things that I have atti lair court reporters p.c. 8 done for Texaco . Q What are the years of your consultation for Texaco? A I can't tell you exactly, but it's certainly been about ten years . J Q Since 1980 or so, roughly? 7 A Roughly -- before that . Probably since about -- I would estimate probably about 1978 . Q Are you on a retainer with Texaco in the 10 sense when they have something for you to evaluate they 11 call you and talk to you about it, or have you completed 1z your work for them? 13 A I still consult with Texaco . 14 4 Does your consultation pertain to any 15 petroleum chemicals? 1E, A It may, sure . 1 _ Q Did it -- has it thus far? We won't talk about the future, but has your consultation for Texaco 18 t!) evaluated the possible toxicological effects of petroleum chemicals in humans? 20 21 A Yes, it has . Q Is there anything about your consultation 22 with Texaco that you feel would be relevant to your work 23 21 in this case? Datti lair court reporters p.c . 9 A Not specifically, other than general knowledge of material safety data sheets, what 3 information is supplied to customers, that information . Q Did you evaluate specifically any refining byproducts, specifically mineral spirits for instance? A Specifically, no . Q I should ask you, before we go any farther, if you coul d tell me what Metalite SV-6 is . A It is mineral spirits . 10 Q What type of mineral spirits is it? Are 11 you able to define that any further? 12 A I can define it by its physical properties . 1,3 It is miner al spirits that has a boiling point of around 19 150 to 200 degrees centigrade, composed of hydrocarbons, 15 primarily a liphatic hydrocarbons . 16 Q What percentage of aliphatic hydrocarbons 1_ would Metal ite SV-6 contain? 1g MR . FOaEL : Absent a chemist's analysis of a 19 Particular batch of Metalite SV-6 we run into the 20 Problem of the fact that Metal Lubricants purchased from z1 a number of different suppliers various products also 22 with other names, from Stoddard solvent to naphtha and 23 so on ; and the percentage breakdowns of aromatics and 24 aliphatics and types of paraffins involved varies Vatti lair court reporters p.c. io slightly from product to product . 3o since Metalite 3V-6 is a hybrid, a combination of various forms, I think for you to ask for percentages out of the air is kind of tough to do . 5 MR . ROTH : Q Go ahead . A That's tough to answer . I don't know specifically . The majority would be composed of aliphatic hydrocarbons . Q You have reviewed material pertaining to 10 SV-6? 11 A Yes . 12 Q You've reviewed the material safety data 13 sheets and other product information that Mr . Fogel 4 forwarded to you, correct? ,_ A That is correct . 16 Q Do you have an opinion, Doctor, as to the 17 percentage of aliphatic hydrocarbons that SV-6 was 18 composed of? 1s A I would have to go back and look at that . 20 I don't have an opinion at this time . z1 Q Would you agree -- I think you said it , ., contains some aromatics, correct? ,i A It probably contains a small amount, yes . 24 Q But this is primarily an aliphatic . Would atti lair court reporters p.c. 11 you agree with that? A I would generally agree with that, yea . Q As long as we're talking about this, Doctor, is the degree to which SV-6 is an aliphatic as 51 opposed t o containing more aromatics important to your opinions in this case? A I don't believe so . Q What is an aliphatic? A It is a strange chain hydrocarbon . 10 Q And how does it differ from an aromatic? A Aromatic is a ring structure containing the 12 carbons in a ring configuration . 13 Q 3V-6, does it contain chlorinated 14 hydrocarbons? 15 A I don't believe so . 16 Q Going back to your work at Texaco, sir, did 77 you evaluate or analyze any chemicals or substances that 18 you would characterize as mineral spirits? 19 A Specifically, I don't recall doing that . 20 Q You -- did you help them put together their material safety data sheets? 21 22 A I only reviewed material safety data sheets for adequacy of information . 23 21 Q And did you review any material safety data atti lair court reporters p.c . 12 sheets that pertained to mineral spirits or Stoddard solvents? .j A Not that I specifically recall . Q Going down a little bit further hire, 5 Doctor, you did some work for Occidental 011 . And to tell you the truth, I can't find it right out -- the first one on the page . Do you see where I'm referring to? A Yea . 10 Q what did your cork comprise of in that ll consultation? 12 a I reviewed the worker's safety in shale oil 13 Production facilities and the gaseous byproducts 14 produced as a result of the shale oil production . 15 Q Did your work fn that regard pertain to the 16 potential hazards of inhalation? A Yes, sir . 17 18 Q Did it pertain also to dermal contact? 19 R I don't recall dermal contact being a concern . 20 y Q When's the last time you worked for 22 Occidental oil? A Worked directly for Occidental Oil, I don't 23 za think I've worked directly for them since this time . atti lair court reporters p.c. is Q When was that? A Probably -Q Can you give me an estimate? A Probably 1979, 1980 . Q Going on to -- we're still on page 8 . You did some work for the American Petroleum Institute, six up from the bottom on page 9 . A Yes . Q And that was with respect to -- was that 10 with respect to developing comments to be submitted to 11 the EPA conc erning the ARCLA -- you have the Resource 12 Conservation Recovery Act . 13 A That's not 11RCLa . It's RCLA . 14 Q Excuse me . 1,- Was that in order to develop the 16 American Petroleum Institute's comments to them with 17 respect to proposed regulations? 18 A Yes, sir . 19 Q Did it pertain at all to petroleum chemicals? 20 2t A Not that I recall specifically . ,z Q Did it have anything to do with mineral spirits? 23 24 A I don't believe so . atti lair court reporters p.c. 14 Q Page 6, Dr . Harbison, you did some work for Dow Chemical Company, four up from the bottom of page B . 3 Do you see that reference? A Yes, I do . Q Can you tell me what your work was for Dow h Chemical with respect to that consultation? 7 A It was an evaluation of the health effects associated with exposure to trichlorethylene used as a degreasing solvent in an operation in Texas . 10 Q Triethylene is a chlorinated hydrocarbon, is that correct? 12 A That's correct . 13 Q Is it similar in its hazardous aspects to 14 mineral spirits? 15 A It might have some similarities, and it also has dissimilarities . 16 17 p When you ware determining -- when you were ix evaluating health problems did they relate to dermal problems? 19 20 A I don't recall . 21 Q Did this primarily have to do with Zz evaluating TCL for cancer causing propensities? A No . I believe it was inhalation and 23 24 dermal . T believe it was the pharmacological effects of P an . !,lair court reporters p.c. is i trichlorethylene and the dermatitis produced as a z result . Hut I don't have a specific recollection of I 3 that . Q What years did you do your work at Dow? A No, I didn't work at Dow . Q Excuse ma, for Dow . I'm sorry i! I said r that . A And I didn't do the work for Dow . I Worked with an attorney mho was representing Dow . 10 Q Oh . A That would probably have been I would say 12 early 1980s, probably '82, '83 . 13 Q What conclusions did you draw with respect 14 to the dermal effects of trichlorethylene at Dow 15 Chemical? 16 A Z don't recall specifically any of those 17 conclusions . 1 . Q Did you make any specific conclusion 19 regarding the chemical you evaluated possibly causing 20 dermatitis? A I don't have a recollection of that . 21 Q Did you prepare any reports? 22 A I don't believe so . 23 24 Q Do you recall anything about your work for atti P1 1air court reporters p.c. 16 the attorney representing Dow Chemical Company that would bear on your opinions in this case? A 1 don't recall anything specific, no . Q In reviewing -- just in general, Doctor, in 5 terms of your industrial experience, have you ever been h retained to evaluate the toxic effects of petroleum 7 chemicals on the skin other than what you've told us about? A I don't have a recollection of a specific 10 involvement in the evaluation of petroleum products on 11 the skin other than what we've talked about . 12 Q I should stop and ask you, Doctor, is your 13 evaluation in this case limited to the potential injury 14 to Mr . Rubinaki's skin, or did it take on a broader 15 analysis? 1, MR . FOGBL : I'm not sure -- do you understand the question? 17 t8 THE WITNESS : Z believe so . A My focus is on the skin, or my evaluation 1s is on the effects on the akin . 20 MR . ROTH : Q You didn't evaluate the possible 21 ?z toxic effects of mineral spirits in terms of inhalation? A No, sir . 23 Q Or ingestion? 24 atti lair court reporters p.c. 17 1 A No, sir . 2 Q So we're talking about dermal contact, 3 correct? 4 A That's correct . 5 Q What is the Center for Environmental 6 Toxicology? 7 A The Center for Environmental -- it's actually changed its name to the Center for I 9 Environmental and Human Toxicology . It is a center at 10 the University of Florida which is s center to conduct 11 research on the effects of chemicals on the environment 12 and human health . 13 Q Is the Center for Environmental and Human Toxicology part of the University of Florida? 14 15 A Yes, air . 16 Q You are the present director? A Yea, sir . 17 18 Q How long was the center been in operation there? 19 A I would estimate about probably eight 20 years . 21 22 Q And how many toxicologists other than yourself work at the Center for Environmental and Human 23 Toxicology? L4 etti lair court reporters p.c. 18 A Oh, there are about 20 to 25 . Q You have been a participant in a number of review groups that are set forth on your CV, correct? A Yes . Q Can you tell me in general what the work of 6 a review group encompasses? A Could we go to one or a couple specifically? Q Sure . Let's start -- the most recent one I to think is 1989 to present, the third one under summary of 11 experience, National Institution of Drug Abuse, page 2 . 12 Do you see where I'm referring to, Doctor, the third one 13 down under summary of experience? 14 A Yea, air . y Q What would the work at that particular 16 review group encompass? 1i A It reviews the extramural funding that the 18 National Institute on Drug Abuse provides to evaluate 19 the pharmacology and toxicology of substances of abuse . 20 Q Now going down to the one second from the 11 bottom on the same page, 1986 to present . Can you tell 22 me what subjects you evaluated as part of that review group? 23 24 A Subjects being chemicals? atti lair court reporters p.c. 19 Q Yes, air . A I'm not pure that's possible . j Q It's pretty broad? A It's about five years of review o! hydrocarbons, of chlorinated hydrocarbons, metals, essentially all substances that humans and other animal species would come in contact with . Q Did you evaluate any -- mineral spirits or any petroleum chemical which is similar to mineral 10 spirits as part of this particular review group? ti A I don't have a specific recollection of 1Z mineral spirits . I'm sure there must have been some 13 things similar to mineral spirits . I don't have a 14 specific recollection of that . 1_ Q Do you recall any part of this review group 16 being undertaken to study the dermal effects of mineral 17 spirits in humans? 18 A This group doesn't study effects . This 19 group reviews grant or research proposals that are 20 submitted to the national institutes of health, 21 specifically the National Institute of Environmental 22 Health Sciences . So it would have been, again, many z3 chemicals that were reviewed . Specifically mineral spirits, I don't recall . n atti lair court reporters p.c. 20 Q How about any of the other review groups that you've been a participant in, do you recall any proposals dealing with mineral spirits or similar petroleum products in terms of what effect they would 5 have on the skin? MR . FOGSL : Do you mean to include solvents such as mineral spirits? MR . ROTH : To the extent that the doctor thinks they're similar . 10 A Well, serving on the National Institute of 11 Occupational Safety and Health study review group, I am 1,, sure that we have looked at proposals to study the 13 effect of mineral spirits and other petroleum solvents 14 on akin . 15 Q Do you recall anything in particular, any 16 specific proposal that you have as part of that review 17 group? lx A No, sir, I don't . 19 Q You also have a teaching position at the 20 University of Florida? 21 A Yes, sir . 22 Q And that's -- you are a full professor in 23 the departments of pharmacology and therapeutics, and an 24 a matter of fact, a number of other departments as well ; ~au~ lair court reporters p.c. as is that correct? A That's correct . -3 Q You also have a clinical professorship at the University of Wisconsin, correct? A That's correct . Q How often 8o you go up there to teach? A I don't go up there to teach . Essentially that appointment was for the development of a continuing education program . And the interaction that I have is 10 with the continuing education program, and I believe L1 that's occupational medicine and public health . 12 Q Do you have any occasion to go up to 13 Milwaukee to interact with them? 14 A Sure . 15 Q Do you actually -- when you talk about 16 clinical professorship, 8o you 8o any teaching of 17 students up there? 18 A No, air, Z have not, other than, again, 19 developing educational materials for a continuing 20 education program which is subsequently used for z1 continuing education of physicians . 22 Q Prior to joining the faculty at the University of Florida in 1988 -- am I correct that's 23 when you joined the faculty there? 24 atti lair court reporters p.c. 22 1 A Yes, air . 2 Q Did you have teaching positions anywhere 3 else? 4 A Yes, air . 5 Q Where would they be? 6 A University of Arkansas for Medical Sciences from about 1981 through 1988, Vanderbilt Medical Center s from about 1971, '72 to about 1980, and prior to that 9 Tulnne Medical School for a period of about two years . 10 Q Do you now or have you ever personally 11 taught courses on the potential effects of mineral 12 spirits or other similar petroleum chemicals on the skin? 13 14 A It's been included and is included in the 15 teaching that I do to medical students, yes . 16 Q Is that a part of your yearly course plan, 17 there's always some discussion of that particular topic? 18 A There's always a discussion of the effect 19 o! particular solvents on the skin . It doesn't focus 20 specifically on mineral spirits . 21 Q How many courses do you tench now, Doctor? ?z A Annually? Q Yes, sir . 23 za A It would be probably two . Medical students ~atti lair court reporters p.c. 23 t I teach the second year . I teach toxicology, and also there are graduate programs which are given probably .; every other year, not every year . Q In terms of the percentage of your work at 5 the University of Florida, what percentage would be devoted solely to research activity? A I would estimate that that's probably about 80 percent . Q And is a part of your time devoted to to administrative responsibilities? 11 A Yes, sir . 12 Q mat would that be in terms of percent? 13 A Probably ten . Q And what would the remaining ten percent 14 15 have to do with? 16 A Probably teaching . 17 Q Do you have any interests in any 18 subspecialty of toxicology? A Interest being research interest or . ., 19 20 Q Why don't we do it this way . Do you 1 practice within any subspecialty of toxicology? z2 A I don't believe so . 2,3 Q Do you have a research interest in any subspecialty or subtopic of toxicology? 24 atti P]air court reporters p.c. 24 A I don't believe so . Q Would teratology be something you have a specific interest in? A I have certainly conducted research in teratology and continue to do that . h Q What is that? A Study of the effects o! chemicals on the developing organism . p Would that be prenatal? 1u a Yes, sir . 1l Q and what percentage of your research 12 activities are devoted to teratology -- or excuse me -j to evaluations within the meaning of teratology? A I'm not sure I could answer that . 14 fiver or this month? 15 16 Q How about in the last five years . We'll talk about current history . li 18 A I would estimate maybe 10 percent, 15 percent . 19 Q In terms of your publications, Dr . 20 21 Harbison -- I'm actually not going to go through each one individually . Does anyone ever do that, go through 22 each one on your CV? 23 24 A No . ans lair court reporters p.c. as Q Doctor, do any of your publications -- and z I'm excluding extracts for the time being -- have any 3 bearing on the interaction of toxicity of mineral spirits on the skin? MR . FOGEL : This is-of the 105 -- more than that . h MR . ROTH : I see 118 . MR . FOGEL : 118 publications . MR . ROTE : Q Take your time, Doctor . MR . FOGBL : We're going to go to breakfast . 10 MR . ROTH : Q The question is whether mineral it spirits has any toxic or harmful effect to the human 12 skin . 13 THE WITNESS : A None of the publications deal 14 specifically with n research of the effect of mineral l ;. spirits on human akin . 16 Q Do any of them deal with any effects of 17 mineral spirits on the human body? 18 A No . There are no publications that 19 specifically research the effects of mineral spirits on 20 the human body . 21 Q Now I want to ask you the same questions zz with respect to the 105 abstracts you have included in 23 your CV . Do any of them bear on the issue of whether 24 mineral spirits or what the toxic effect of mineral atti lair court reporters p.c. 26 t spirits would be on the human skin? ., THE WITNESS : A I don't know of any of the 3 abstracts that look specifically at the -- or reports 4 specifically on the effects of mineral spirits on skin . 5 Q Do any of the 105 abstracts deal at all 6 with mineral spirits or similar petroleum chemicals? A The problem I'm having with that question 8 is similar petroleum chemicals . Do you mean are any of 9 these hydrocarbons? 10 Q Well let me narrow it down . it Why don't we stick to mineral 12 spirits, how you previously defined mineral spirits in 13 this case . Do any of your abstracts pertain to an 14 analysis of that chemical? 15 A Of any constituent of mineral spirits? 16 Q Of the chemical you previously referred to 1"r as mineral spirits? 18 A Which was the aliphatic and aromatic hydrocarbons . to Q Correct . 20 A If you asked me the question about mineral Zi spirits, the answer is no . There aren't any abstracts 22 specifically that investigate the effect of mineral 23 spirits on humans or on animals . 21 atti lair court reporters p.c. 27 The problem I'm having with the question is that when you say other related substances, 3 bromobenzene is certainly a related substance, although it is a halogenatad aromatic which certainly does not occur in mineral spirits, chemically it could certainly be related . Q Are you relying on any of the articles that you have published or any of the abstracts you have prepared as authority and as a basis for your opinions 10 in this case? it A Well, I would rely upon the publications 12 and the abstracts as a basis of my general toxicological 1,3 knowledge . 2'm not going to rely upon any one 14 specifically as an authority for any specific opinion . 15 Q In terms of relying an these materials for 16 your opinion relating to the possible harmful effects of 17 mineral spirits on the human body, would you be relying 18 on any of these articles or abstracts as authority to 19 support your opinions? 20 A Isn't that the same question? 21 MR . FOGEL : Yes . 22 MR . ROTH : Q Are you telling me that you're 23 relying on these articles and these abstracts as a basis 24 for your expertise in toxicology in general? atti R'lair court reporters p.c. 28 THE WITNESS : A As a basis for my general experience and knowledge in the field of expert -- of toxicology . It's not the only basis or the only experience, but it is certainly a component part of . Q Are you relying on any specific article as 6 an authority for your opinions in this case as they 7 relate to SV-6? A I think 2 already answered that, and I paid no specific article would I rely on as a specific 10 authority . Hut generally the information I would rely 11 upon as my toxicological information for my opinion . 12 Q Are any of your opinions in this case 13 related to the question of whether or not a warning was 14 necessary to be issued with the sale of Metelite SV-6? A Yea, sir . IJ 16 Q Do any of the articles or abstracts that you have contained in your CV relate to the issue of the 17 requirement of warnings? 18 A I don't believe so . 19 Q You have published a few articles or 20 ?1 prepared a few abstracts other than those contained in 22 your CV, is that correct? A Yes, air . 23 Q Do any of those articles that are not `4 ~atti lair court reporters p.c. 29 mentioned in the CV bear on the issues that we've discussed? A The issue being warning? Q The issue of warning . How about warnings? A Na, sir, I don't believe eo . g Haw about the issue of whether mineral spirits is hazardous to human skin? A No, sir . y Q Do you have any industrial experience to 10 preparing material safety data sheets? it A Yes, air . 12 Q And could you tell us what that experience 13 is . 14 A I have prepared material safety data sheet lr for Aerotech , which is a corporation in Arkansas . I 16 have reviewed material safety data sheet information for 17 Texaco . And those are the ones I can recall . 18 Q What product were you dealing with at Aerotech? 19 20 A There were a variety of products . ,1 Essentially the products that were contained with the company, that is, that were used . 22 23 Q Were they petroleum products? 21 A I don't recall specifically petroleum Datti JI-D)lair court reporters p.c. 3a I 1 products . ;, Q Dr . Barbison, do you consider yourself an expert in the preparation of material safety data sheets? 5 A I would consider myself to have expertise h in the preparation of material safety data sheets and to 7 be expert in that field, yes, air . Q And do you consider yourself an expert, y sir, in terms of when and when not a warning is required 10 with respect to a particular product? MR . FOGBL : Could you read the question back, 12 Please . 13 (Question read .) 14 THE WITNESS : A With regard to toxicological 15 information, yes, 2 believe so . 16 MR . ROTH : Q What is the basis o! your expertise t . in terms of preparing material safety data sheets and in 18 terms of determining whether safety warnings are necessary? 19 20 A My general knowledge, experience, practice 21 of toxicology, knowledge of regulations . 22 Q In terms of industrial experience, have we 23 exhausted your industrial experience in developing 24 warnings on material safety date sheets in terms of your atti flair court reporters p.c. 31 work for Aerotech and your work at Texaco ; or is there more industrial experience that you've had in this area? A Industrial experience including the review of materi al safety data sheets? Q Yes, sir . A Yes . g be . Can you tell us what that experience would y A I have reviewed those far PPG . I'm sure 10 there are others . I just don't recall them . 11 Q What type of products were the subjects of 12 the MSDS for PPG? 13 A They mere chlorinated solvents . 14 4 And when you reviewed those for PPG, did 1 ; you determine that the MSDSs were sufficient? lfi A Yes, I believe so . 17 Q When you reviewed them for Texaco, did you 18 determine that the MSD sheets that were submitted to you lA were suff icient? ,y0 A No, I don't believe so . I believe that 21 there were some changes that needed to be made . 22 Q What were the nature of the changes that 23 you recommended on the Texaco sheets? 24 A t believe those were generally wording ~atti lair court reporters p.c. 32 changes, inclusion of some information that was not ., included in the material safety data sheet . 3 Q In terms of all your publications and all your abstracts, Doctor, have you ever had one that deals 5 specifically with causes of dermatitis? A No, sir . 7 Q Have you ever published an article or prepared an abstract dealing with the causes of psoriasis? 1U A No, sir . 11 Q Have you aver published an article or 12 Prepared an abstract dealing with the causes of skin 13 injuries? 14 A No, sir . 15 Q Have you ever used mineral spirits is personally? A Yes, I believe so . 17 18 Q And what have you used it for? 19 A I've used it in painting, to clean brushes 20 after painting . Those would be the things I could remember . 21 Q Was this on more than one occasion? 2? A Oh, I suspect it's been on more than one 23 .,,a occasion, yes . iitti F-lair court reporters p.c . 33 Q Just painting things around your house, just personal use? A Yes, sir . Q Did you always use gloves when you were using mineral spirits? A It would depend on whether or not my hands would come in contact with the mineral spirits . Probably on most occasions they would not . Q Have your hands come into contact with 10 mineral spirits? 11 A I expect so . 12 MR . FOGEL : Are you talking about incidental 13 contact? 14 MR . ROTH : Q Whatever contact . 15 THE WITNESS : A I assume it's in the context 16 we're talking about here, which is using mineral spirits 17 far painting purposes . 18 Q Right . 1 9 A Yes . 20 q Was avoiding contact with mineral spirits 21 something that you tried to do? 22 A Yea, I think I probably did . 23 Q Did you wear gloves when you were working 24 with mineral spirits? atti lair court reporters p.c. 34 A I think you asked me that question . My answer was that unless I was going to contact the mineral spirits I did not wear gloves . Q When you done -- when you knew you would 5 have contact with mineral spirits, did you always wear gloves? 7 A I don't know that I always wore gloves . Q Did you take any precautions to avoid skin y injury as a result of contact with mineral spirits? 70 A Yes . 11 Q What precautions did you take? 12 A I didn't contact the mineral spirits for 13 prolonged periods of time . Q Do you have any industrial experience where 14 li you have actually observed workers in plants or industry 16 working with mineral spirits? 17 MR . FOGEL : Versus solvents, generally? IA THE WITNESS : A Yes, I believe so . MR . ROTH : (} And where would that experience 79 have been? 20 A At the Kelly Springfield tire plant in 21 00 Tyler, Texas . That's the only one I can think of . Q When would that have been? 23 A Probably about two years ago . 24 atti lair court reporters p.c. 35 Q And were you doing consultation work as part of your reason for being at the Kelly Springfield .j plant? A Yes, sir . Q And what was that research directed to? A Evaluating the effects of exposure to materials in the tare plant . Q Was one of those materials you were evaluating mineral spirits? 0 A Not specifically, no . 11 Q And for what purposes were the people using 1,, mineral spirits at Kelly Springfield? A I believe they were using them for cleaning 14 purposes . 15 Q Did you observe the workers having contact 16 repeatedly with mineral spirits? 17 A No, I did not . 18 Q Did you observe the workers there having 19 contact with mineral s pirits for durations that would be 20 more than what you would characterize as incidental 21 contact? A No, I did not . 22 Q Did you observe the workers there having skin contact with mineral spirits? 24 atti lair court reporters p.c . 36 i A I don't recall that specifically . Q Were the workers using gloves when they were working with mineral spirits at Kelly Springfield? A Z don't know the answer to that . :_ Q Did you observe any contact that you would consider a safety hazard in terms of the workers at Kelly Springfield using mineral spirits? A No, I did not . Q Does it matter to you whether or not they 10 were wearing gloves or not? l l A Sure . 12 Q And why would it matter to you? 13 A Well, it would prevent or limit exposure if 14 gloves were being worn . If they were not, then exposure 15 would be more likely . 16 Q If you would observe those workers not li wearing gloves, would you consider that a safety hazard 18 when they were working with mineral spirits? 19 A Well, it would depend on the activity that 20 they have been or are engaged in, the length of that activity, all of the procedures that would be 21 22 encompassed within that activity . Q Z take it that was not one of the aspects 23 24 of the work down there that you were down there to atti lair court reporters p.c. 37 evaluate though, is that right? A That's right . 3 Q Have you had any other industrial experience, Dr . Harbison, where you have observed workers dealing with petroleum-based solvents other than whet you've told us about at Kelly Springfield? 'r A Petroleum-based solvents? Q Yes . y A I don't recall any others specifically . 10 Q All right . 11 When you sere at Kelly Springfield, 12 Dr . Harbisott, how long were you down there for your 13 work? 14 p A day . 15 4 And how many hours of that day did you 1h spend inside the area where you observed workers coming 17 in contact with mineral spirits? 18 A It would have been a small amount of time . 19 Z couldn't estimate it . 20 Are you aware of the common uses of mineral L1 spirits in industry? A Sure . 22 23 Q What would they be? A Used for cleaning purposes, as paint ~atti lair court reporters p.c. 36 materials . Those would be the uses I would be aware of . Q is mineral spirits used in degreasing operations? A It can be . Q And just again, other than your time at Kelly Springfield, you haven't personally observed these operations in industrial settings ; correct? A Degreasing operations? Q You haven't observed the use of mineral 10 spirits in industrial settings other then your trip down 11 to Kelly Springfield, is that correct? 12 A I think you asked me that question, and I 13 think I said that that's the one I could recall . 14 15 recall them . There may be others . I just don't 16 Q Okay . 1 A And -- I don't recall . 18 Q Can mineral spirits be composed of varying amounts of aromatics versus aliphatics? 19 A Didn't you ask me that question? 20 Q I don't think I did . 21 A Yes . 22 Q What is the range of aromatics generally 23 found in mineral spirits? 24 atti lair court reporters p.c . 39 A I think you asked me that, end I said I didn't know . It was a small amount, certainly lesser today than probably five years ago or ten years ago . Q Is there an industrial reason why a company 5 would like to limit the amount of aromatics in mineral spirits? A Sure . Q What would that reason be? R Probably the primary reason is exposure to 10 benzene . 11 Q Is that a human cancer-causing agent? 12 A Not necessarily . 13 Q It has been evaluated for that potential hazard though before, hasn't it? 14 15 A Sure, it has . Q is xylene an aromatic? 16 1 A Yea, it is . Q Is that contained in mineral spirits to 18 varying degrees? 19 20 A Maybe . Q Has that also been evaluated as a possible 21 22 cancer-causing agent? A Xylene is, to the beat of my knowledge, not 23 a cancer-causing agent . i don't know where it ranks on 24 Dam lair court reporters p.c. 40 the categorization . Z don't know where it is . Q Individually, xylene has been evaluated in terms of po ssible harmful effects to humans though ; is that right? A Sure . Q Is it possible to have mineral spirits containing no aromatics? A I don't know the answer to that . Q Are you familiar with the process by which to mineral spirits is created? A I believe so . 12 Q Can you tell us what that would be? 13 A It's a distillation of petroleum materials . 14 Q Do you have any more detailed information 15 about how they go from the distillation of petroleum 16 material and come up with mineral spirits? 17 A It's a distillation product . The product 18 comes off a t I believe 150 to 200 degrees centigrade . 19 Q What is the boiling point of mineral spirits? 20 21 MR . !'OGSL : Asked and answered . 2z MR . BOTH : Q You did tell me that before . I didn't ask you that, but you told me that . 23 TAE W:ITNESS A T will tell you again . It's 180 24 atti lair court reporters p.c. 41 to 200 degrees centigrade . Q Thanks . Does the percentage of aromatics in mineral spirits affect the degree to which it acts am a solvent -- affect its ability to act as a solvent -excuse me? A Not that I'm aware of . Q Does the percentage of aromatics have any y effect in terms of the industrial use of the mineral 10 spirits? A I don't understand that question . 12 Q Maybe I can clarify it . 13 Is there an industrial reason why a 14 company might want a higher or lower amount of aromatics 1,_ in its mineral spirits? 16 A Well, I think you asked me the question 1? about the lower amounts . 18 R Yeah . 19 A And one would want to have the lower amount 20 of benzene . Higher amounts, I don't know any reason why 21 one would want higher amounts ; but there may be . I just z2 don't know that . Z,j Q Is the reason you want lower amounts 24 related to potential health issues? ~acri lair court reporters p.c . as A It's related to potential exposure issues, exposure to benzene in compliance with benzene standards . Q And there are established limitations for 5 benzene exposure, correct? h A That's correct . r Q And in terms of benzene exposure, Doctor, are those limitations or restrictions related only to inhalation ; or do they alas extend to dermal contact? 10 A I am familiar with the inhalation . I'm not 11 familiar with the dermal contact . 12 Q What is the affect of mineral spirits on 13 the skim 14 A Mineral spirits are a defadding agent . l They remove the fat from cells affecting, the cell wall, 16 and essentially affecting the epithelium by causing the l . cells not to stick together and to have various damages 18 occur on the cell membrane which can result in 19 inflammation and can result in damage to the skin ; that 20 is, the akin can crack or separate and the cells do net stick together anymore . 21 Q Does exposure to mineral spirits kill skin 22 cells? 23 A It can . 21 ace lair court reporters p.c . as Q And where is the epithelium located within the layers of the akin? A It's on the surface of the akin . g Is it in the epidermis? A I believe so . Q And how many levels are there to the epidermis, Doctor? A I don't know the levels of the epidermis . Q The epithelium is on top of the epidermis, 10 the one absolutely closest to the external environment ; 11 correct? 12 A That's correct . 1 .3 Q Is that the one where the primary effect of 14 mineral spirits is? 1. A I believe so . 1E. Q Does mineral spirits have an effect on akin 17 tissue other than the epithelium? MR . FoaBL : You're talking about upon an initial 13 exposure versus prolonged or repeated exposure when you 19 20 get the initial damage to epithelium, cracking, and then material exposure through lower layers or lower areas of 21 22 the skin? MR . ROTH : I don't know . Let's ask him . 2:i MR . FOGEL : Read the question back again, please . 24 gatti KDlair court reporters p.c. 44 (question read .) MR . FOGEL : I want it clarified simply because there's been two dermatologists that testified . . . MR . ROTH : I want to ask Dr . Harbison shat his opinion is . h THE WITNESS : Can you read me the question before that . (Question read .) THE WITNESS : A If there ere cracks, or cuts, or 0 abrasions . 11 MR . ROTH : Q And would the effect on the other 2 skin tissues be different or similar to those on the 13 epithelium? A It would be similar . The mechanism of 19 action is essentially the same . It's just whether it Ij can contact a tissue or a cell . The epithelium is that 16 which is primarily affected because it's that which is li external . is Q Is the primary effect of mineral spirits 19 related to its defadding propensities? 20 A Yea, sir . 21 Q An is it through those defattening 22 propensities that it can harm the akin tissue? 23 A Yea, sir . 24 atti lair court reporters p.c. 45 Q What are you basing your knowledge on in terms of the effects of mineral spirits on the skin? A Hasid upon my education, based upon my experience, based upon my knowledge of the affects of solvents . Those would be the bases that would provide the opinion . Q Can mineral spirits be handled safely without damage to the skin? A Sure . 10 4 Under what circumstances? 11 A Under circumstances of limiting exposure . 12 Q And what would the exposure have to be 13 limited to? 14 A Well, I can't answer that question, other 15 than limiting exposure can limit the effects of mineral 16 spirits on the skin . So by limiting the exposure, 17 mineral spirits can be used safely . 18 Q There is a point, though, where we can use 19 mineral spirits without it having en adverse effect on 20 the skin tissues ; is that correct? a Sure . 21 Q Is it impossible to define that in any more 22 detail? 23 A Well, I haven't done that . Certainly, 24 ~atti lair court reporters p.c. d6 there are standard operating procedures for the use of mineral spirits that mineral spirits could be used ,j without producing adverse effects on the skin . That could include the use of gloves, impermeable gloves . It could include a standard operating procedure whereby f, there was not direct contact of the skin with the mineral spirits . So those would all be ways by which mineral spirits could be used safely without adverse 0 effects . it 4 With direct contact, mineral spirits can 12 still be handled safely at some level ; is that right? 1 .3 A I don't understand the term with direct contact . 14 15 Q Well I didn't want to get into the gloves and barriers and such . 16 17 Is there a point where a worker can 18 be working with mineral spirits and having direct contact on his or her skin and there not being any 19 damage to the skin? 20 21 A I suspect that there era those contacts which would not damage the skin, yes . 22 Q Doctor, is part of the question of when 23 za there is damage and when there is not damage related to ~atti lair court reporters p.c. 47 the individual's -- the susceptibility of the person using the mineral spirits? A No . Q Do you think the effects of mineral spirits are the same in all individuals under the same industrial settings? A When you say same in all, that's s difficult question to answer . Are the effects similar in all people, yes, 2 believe that they are . 10 Q Does -- the amount of disruption mineral 11 spirits can cause, can that differ depending on how 12 susceptible an individual is to skin injury? 13 A I don't understand the term susceptible . 14 The mechanism of action by which Z know mineral spirits ,_ affects the skin, I believe that effect would be similar in moat individuals who would have contact . 17 Q Have you personally ever run any studies on 18 the effects of mineral spirits on akin? 19 A I think you asked ms that . 20 4 I asked you if you published any articles 21 or prepared any abstracts . My question to you is have 22 you personally run any study on the effect of mineral spirits on the human skin? 23 A No, air, I have not . 24 patti Ir-)lair court reporters p.c . 48 Q Would you consider mineral spirits to be a skin irritant? A Yea, I would . Q Do they classify irritants in terms of 5 mild, moderate, severe, within the field of toxicology? A I don't know of such a classification . Q Would you be able to classify this in terms of mild, moderate, or severe irritant? A It would certainly be speculation . 10 MR . FOGLL : Don't speculate . 11 MR . ROTH : Q Go ahead . Go ahead and answer the 1z question . MR . FOGEL : It just opens the floor to 16 other 113 questions . 74 MR . ROTH : Q There won't be another question . 15 THE WITNESS : A You promise? 16 Q I promise -- not about that . There will be 17 other questions . 78 A I would certainly not put it in severe . 19 Q Are there any treatises or texts within the 20 field of toxicology that you believe are authoritative 21 2z on the issue of the effect of mineral spirits on skin? A I don't have an authoritative text that I 23 would rely upon . I would rely upon all texts and 24 atti lair court reporters p.c. 49 i 1 published information . Q How about Patty's text, is that an authoritative text? A No . Q Parts are and parts aren't? A Maybe . Q Are you familiar the part about petroleum chemicals and hydrocarbons? R Yes, sir . 10 Q Do you consider Patty's authoritative in 11 that area? 12 A Nat necessarily . 1 .; Q Is that a no? 14 A it is not s no . We'll have to go to each 15 line and ea ch segment of Patty's . 16 Q All right . 17 Are you aware of any industry 18 practice where workers would use mineral spirits to clean their hands after a particular operation? 19 20 A Yes, I believe that's been done . 21 Q Do you have any concerns about the safety aspects of . . . 22 23 MR . FOGSL : Does ha have any what? MR . ROTH : Q Well 8o you have any opinions as to 24 atti lair court reporters p.c. 50 whether or not that is a safe industry practice? THE WITNESS : A Yeah . My opinion would be that that is not a safe industry practice, that washing hands with mineral spirits is probably something that should 5 be avoided . Q for the reasons that we talked about 7 before, the defatteninq propensities of mineral spirits? A For all a! the reasons we talked about before . 10 Q Are there any other harmful propensities o1 11 mineral spirits to the skin other than the defetteninq 12 aspect that we discussed in detail before? 13 A That's what I focused on, is the effect of 14 the mineral spirits an the skin to produce dermatitis . Other effects I haven't evaluated, and I don't know . 15 16 Q Are you swats of the uses of petroleum 17 chemicals in industry in general? A I believe so . 18 19 Q Are there medicinal uses for petroleum chemicals? 20 A Sure . 21 22 Q What are some of the medicines that they incorporate petroleum based chemicals within? 23 21 A I can tell you pharmacological classes . atti lair court reporters p.c. 51 Q Okay . i A There are shampoos, there are salves, there ,j are ointments . Those would be some pharmacological categories . Q Are you familiar with the product called Retin-A? 7 A Yes . Q That was marketed out there as an anti-wrinkle akin cream not too long ago, right? 10 A Yes . It t2 Dose that contain petroleum chemicals? 12 A I don't know . 13 Q How about coal tar, are you familiar with 14 coal tar? 15 A Sure . 16 Q Is that a petroleum chemical? 17 A Sure . 18 Q Are you aware of any medicinal uses that they employ coal tar for? 19 20 A Sure . L1 4 What are they? A The ones 2 just told you . Shampoos, 22 salves, ointments . Those would be uses of petroleum 23 products . 24 atti lair court reporters p.c. 52 g What is the physical property of coal tar that they use as a medicinal element? What does coal tar do . MR . FOGSL : Let me object as irrelevant and 0 immaterial . MR . ROTH : Q Go ahead . "r THE WITNESS : A What is the mechanism by which coal tars have their effects? Q Yes, sir . 10 a 2 don't know the answer to that . 11 Q Is it essentially the same mechanism as 12 mineral spirits in terms of detattening the akin? 13 A I don't know the answer to that . 14 Q Are you aware of whether coal tar is used 15 to treat any skin conditions, including dermatitis? 16 A Yes, it is . 17 Q Are you familiar with the propensities of 1H coal tar insofar as it relates to contact with human t9 akin? A The propensities? 20 ?1 Q Excuse me . I'm using the wrong 22 terminology . Please atop me when I'm using confusing terminology . 23 MR . FOGEL : We're not going to help you there . 24 iktti P11air court reporters p.c . 53 MR . ROTH : He can help me . If he can't answer the question, he can tell me . It might be because 1 3 don't know what I 'm talking about . 14 Q Are you familiar with the effect of coal 0 tar on the human skin? MR . FOGEL : Are we dealing with a coal tar product here, or are we just off on a tangent? Can you answer my question? Because I may not let the doctor answer these questions with 10 relation to coal tar unless you can tell me the 11 relevance . You're fishing . 12 MR . ROTH : No, I'm not fishing . 13 He'll answer my questions so long as 14 they're questions that he understands . If you want to 15 instruct him not to answer, you take your chances . You 16 know what the law is . MR . FOGSL : I don't take chances . If you can 17 18 explain to me the relevance . I'll instruct him not to answer . 19 MR . BOTH : Go ahead and repeat the question for 20 the record . 21 (Record read .) 22 MR . ROTH : Is that the question you're 23 instructing him not to answer? 24 JD atti DJlair court reporters p.c . 84 MR . FOGEL : Yeah . Do you want to tell me some ,, relevance or . . . 3 MR . BOTH : Q Is mineral spirits a coal tar product, and does it contain hydrocarbons, and does it 5 have an effect on human akin? THE WITNESS : A Yea, all yea . "r MR . ROTH : I want to determine the effect of mineral spirits . I'm simply asking whether or not he y can tell me or has knowledge of the effect of coal tar 10 on human skin . So do what you got to 80 . 11 MR . FOGSL : Which question do you want to ask? 12 MR . ROTH : The first question . 13 THE WITNESS : He's already asked me that 14 question, and I've already answered . 15 MR . ROTH : Q What was the answer, Doctor? 16 A My answer was that it does have 1_ pharmacological effects . It is used as shampoo . It's 1h used as ointments and salves for the treatment of 19 various skin conditions . U And then you asked me how it did 21 that, and I said I don't know the mechanism by which 24' coal tar affects the skin . 23 g You don't know whether coal tar is a defattener or not, 8o you? 24 D.'--?a)tlatiir court reporters p.c. 56 A I don't know . Q Are there any coal tar products contained in hair spr ay? A Which hair spray? 5 Q Women's hair spray . Are there any petroleum hydrocarbons contained in there? 7 A That's a question I would have to answer based upon you identifying some hair spray . Q Product name isn't going to help here . 10 A Petroleum hydrocarbons are used as 11 Propellants in hair sprays, yes . When you say is it a 1,, constituent of hair spray, I assume that you're meaning 13 is it part of what gets on to the hair and does 14 something . 15 4 Yes . 16 A I don't know the answer to that . Q How about cosmetics, women's makeup, does 17 18 that contain petroleum chemicals? A Oh, sure . 19 20 Q What is the effect of the petroleum chemicals on the skin when it is applied as a makeup? 21 MR . FOGBL : What are we going to prove, that 22 makeup is sate therefore mineral spirits is safe? Is 23 24 that where we're going? atti lair court reporters p.c. 55 MR . BOTH : Q I want to know what the physical ,, mechanism of this is . What's the physical mechanism of the petrol eum products contained in makeup on the human skin when it is applied? 5 THE WITNESS : A What are the effects on the akin when it's applied? It depends on how much is applied and where it's applied . Xylene, toluene, and other materials are used in s variety of cosmetics . Generally, those concentrations are small, and there 10 aren't any adverse health effects . 11 12 4 Can the use of makeups with those chemical components dry the skin? 13 A I don't know the answer to that . 14 Q Are you familiar with acetone? 15 A Yea . 16 Q Is that what's used in finger nail polish? A That's one constituent, yep . Q Is it also used as a solvent? 79 A Yea . 20 Q Is it s petroleum-based solvent? 27 z2 A I believe that it is . Q Do you know whether akin contact with 23 acetone can damage human akin? 27 atti lair court reporters p.c . B7 A It depends on the concentration . It depends an the length of exposure . It can, sure . Q Do you know if it's a defattener? A Yes, it is . 5 Q In your opinion, then, should one avoid h skin contract with acetone? 7 a It depends on the use . It depends on the concentration . Q Is gasoline a delattener? 10 A Yep, it is . t1 4 Is latex paint a defattener4 12 A I don't know the constituents of latex 13 Paint . 14 4 How about oil-base paint, would that be 15 something that would act as a defattener on human akin? 16 A I don't know the answer to that . 1 1 Q How about laundry detergent, does that 1h contain any any petroleum chemicals that would act as a defattener on the human skin? 19 20 A 2'm not familiar with all laundry 21 detergents . The ones that I'm aware of I don't think 22 contain petr oleum hydrocarbons . q is laundry detergent broadly defined within 23 the category of solvent? 24 atti lair court reporters p.c. 58 MR . FOGEL : By whom? MR . ROTH : By Dr . Harbison, bayed on his 3 knowledge . THE WITNESS : A Would 2 broadly define laundry detergents as solvents? MR . ROTH : Q Yes . A I don't believe 2 would, no . Q Does skin contact with laundry detergents dry the sk in? A It depends on the use . 11 Q Can that lead to dermatitis? 12 A Sure . 13 Q Can hand soaps dry the skin? 14 A It depends on the use . Sure . 15 Q Could that possibly lead to dermatitis if 16 it did dry the skin? 1 A It depends on the use . It the use was extensive, sure, it could lead to dermatitis . 18 19 Would you be able to define what extensive use would be of hand soaps? 20 27 A I have not evaluated that . I don't have nn az opinion at this time . Q Would your opinions regarding hand soaps 24 change if the soap was a bar soap as opposed to a atti R11air court reporters p.c. 59 granular soap? A I don't know the answer to that . Q Doctor, do you follow a specific scientific methodology in order to determine whether a given substance causes a given effect to human tissue? A Sure do . Q Can you tell us what that methodology would incorporate? A Sure . It must first of all be exposure . 10 That exposure must be of a sufficient concentration to 11 produce an effect . That effect must be an effect that 12 is consistent with the known effects of this particular 13 agent or chemical ; that is, there is literature, medical 14 end scientific or human precedence for the effect, that 15 there is biological plausibility or a mechanism by which 16 this effect can occur, and confoundere and other 17 possible causes have been eliminated . 18 Q Now in order to reach an opinion based upon 9 a reasonable degree of scientific certainty, is it 0 necessary to fulfill each one of those factors that you 21 just told us about? 22 A Yes, I believe so . 2 .3 Q Is exposure the same as dose? A No . 24 atti lair court reporters p.c . 60 Q What's the difference? ,, A Dose is what you get into your body . 3 Exposure is the opportunity for contact . Q Zs exposure alone enough to satisfy causal 5 relationship between the chemical and effect to the body? MR . FOGEL : Can you read that back for me, please . (Question read .) 10 THE WITNESS : A Good heavens . I don't understand the question . Is exposure enough to satiety 12 the causal effects . . . 13 MR . ROTH : Q Let me rephrase the question . I 14 obviously have not done a good job . 15 The fact that an exposure alone is 16 insufficient to establish a causal relationship, you 1 . need dose as well as the other factors you told us 18 about ; correct? 19 A Or concentrations with regard to a surface 20 exposure, or, in this case skin . 21 Q In terms of the dose . I'm sorry . A Well, are we talking shout any effect, or 22 are we talking about an effect on the skin? 2;3 Q Affect on the skin . 24 atti lair court reporters p.c. 61 A Affect on the skin, the concentration would be a fact or that would be considered in determining the 3 cause of a akin effect . The dose is what you get into your body . So the dose that would result from exposure to the sk in may not be relevant to the effect on the akin . Q There has to be contact though? A There has to be contact, and that contact y has to be to a sufficient concentration to be able to 10 cause an effect on the cells . 11 Q So going over your methodology again, in 12 addition to exposure and the does definition you just 1 :3 gave us, there has to be a dose sufficient to cause the 14 effect ; correct? That's part of the factor, right, the 15 concentration has to be enough to cause the effect -- A Correct . 17 Q -- to the body? 18 A Correct . 19 Q The effect has to be consistent with known 20 medicine, known medical effects ; is that right? 21 A No . It has to be consistent with the known 22 effects of this compound, of this agent . 23 g And there has to be medical or scientific evidence or authority, is that right? 24 atti lair court reporters p.c. 62 A There has to be medical or scientific ,, precedence, literature, for this particular effect . ,3 Q And you indicated it has to be biologically,, plausible? A That's correct . Q Can you tell us what you mean by biologically plausible? A There has to be a mechanism that biologically makes sense by which this chemical or agent to could have produced this particular effect . 11 Q And am I correct, sir, that -- I think the 12 last factor you added to that was that other causes have 13 to be effect ively eliminated ; is that correct? A Confoundere have to be eliminated as a 14 15 cause, that' s correct . 16 Q An is an alternative cause a confounder? 77 A It could be . 18 Q Is there anything necessary to your analysis in terms of temporal relationships? 19 A Sure . 20 Q What is necessary in that regard? 21 22 A It hay to be temporally eligible . That is, the effect has had to have occurred within a reasonable 23 amount of time from exposure to a particular material to 24 ~atti lair court reporters p.c. 63 have produced the effect . g Certain materials have different temporal relationships, is that correct? A That's a good question . Q I'm mixing things up . Certain chemicals differ in terms o! the time period, the latency period, 7 before they will have an effect? A That's correct . Q Is that what you mean when we talk about a 10 temporal relationship? 11 A Yes . 12 Q In terms of mineral spirits, what's the 13 temporal relationship that you would look for -- what is 14 the temporal relationship you would look for between the 15 exposure, dose, and the effect on the skin in terms of 16 mineral spirits? 17 A Immediate . g In terms of immediate, does that mean that it would be immediately noticeable to a practitioner? 19 20 A Practitioner being a physician? z1 Q Yea, sir . A Yes, I believe so . 22 2, Q What type of scientific and medical authority do you rely on in terms of satisfying your 21 ~atn lair court reporters p.c . sa analysis, this methodology? A I'm sorry . Q Let me rephrase the question . Is there a specific type of 5 scientific literature that you rely on in terms of the authorities you need to establish precedent? A Precedence . Sure . Q What type of scientific literature do you look to? 10 A Scientific and medical literature that 11 would demonstrate that exposure to mineral spirits is 12 capable of causing dermatitis . 1 ,; Q Are there different types of scientific 14 literature available to you? 1i A Sure . Q And what would they be? A It would be textbooks, it would be original 17 18 scientific Journals or articles . Those would be two 19 sources . 20 Q How about epidemiological studies? A Sure . 21 Zz Q Would you agree that they are the strongest source for establishing precedent? 2.3 24 MR . FOG$L : Precedent for what? atti lair court reporters p.c. 65 MR . ROTH : In terms of his methodology . z THE WITNESS : A Well I'm bothered by strongest . Are they a strong contributor to or are they a strong piece of scientific evidence that would determine the cause of a human ailment or disease, the answer is yes . h MR . ROTH : Q Epidemiological studies are intended to examine or establish the question of causal relationship between, in this context, exposure to a chemical and a given human effect ; isn't that correct? ', 10 A Now the problem with your question 3e 11 causal . Epidemiological studies are designed to 12 demonstrate or to determine associations between some 13 exposure or chemical use and the occurrence of some 14 disease or ailment . The epidemiology does not establish 15 the cause of that human ailment or disease . 16 Q Let me ask you this, Doctor . Can causal 17 relationships be established through such associations? 18 A Such associations can be used to establish causal relationships, not alone, but can be used to 19 20 establish them . Q In addition to epidemiological studies, are 21 22 there also case reports available to you in terms of establishing precedent? 23 A Yes, there are . 34 atti lair court reporters p.c. b6 Q And are there also animal studies on occasion available to you for establishing precedent? A You're changing the words . By precedent, you mean a cause and effect relationship? Q Yea, air . A Yes, there are . Q And there is then, of course, the whole body o! medical texts and scientific texts ; correct? A That's correct . 10 Q And are there other sources other than 11 those for obtaining information with respect to setting 12 a precedent? 13 A Other than textbooks, scientific literature, those were the two -- I'm sorry . 14 15 Q We have ease reports, epidemiological 16 studies, animal studies, and textbooks . a And the question is are those all things 17 18 that one could rely upon in establishing the cause of an 19 effect? Q What else would you rely upon? 20 21 A Experience, knowledge . 2z Q Your own personal experience and knowledge, correct? A Yes, sir . 24 patti flair court reporters p.c. 67 Q Let's exclude that for a moment and go back 2 to epidemiological studies, animal studies, case 3 reports, and medical texts . Would you be able to arrange them in an order of persuasiveness and an order of weight that you would attribute to them? A Between epidemiological studies, cage reports, textbooks, and scientific literature? y Q Yes . 10 A That question doesn't make sense . I mean, 11 QPidemiology studies can certainly be scientific 12 literature and can certainly be in textbooks . If the 13 Question is epidemioloQy versus animal studies, that's 14 easy . 15 Q Doctor, are you familiar with a term that 16 refers to some literature as anecdotal literature? 77 A Sure . 18 Q Which is more valuable to you in attempting 19 to establish a causal relationship, epidemiological or anecdotal literature? 20 A Epidemiological . 21 22 Q Which is more valuable between epidemiological studies and Patty's Industrial Hygiene 23 Text? 24 Datti ,!lair court reporters p.c. 68 A I don't understand that queaiton . Q Which would you attribute more weight to in, 3 doing your analysis? A Well, I guess it would depend on what the s epidemiology study is, whether it is an adequate epidemiology study . And if I looked at a textbook, it would depend on what the textbook says . Textbooks 7 aren't necessarily always authoritative and neither are epidemiological studies . 10 Q Which would you attribute more weight to 11 between an epidemiological study and a case report? 12 MR . FOGEL : Just generally without going into the ,3 type of study or the extensiveneas or the time frame? 14 MR . ROTH : Q The study goes within its own 1, parameters -- gut it this way . Which would you accord 16 more weight to, a properly conducted epidemiological t study or a case report? 18 THE WITNESS : A Properly conducted 19 epidemiological study . Q What would be the reason for that? 20 A Because it is not subject to bias, 21 pre3udice, the preconceived outcome of the investigator or the investigator's bias as to what the outcome of the 23 study should be . Properly conducted epidemiological 21 atti lair court reporters p.c. 69 studies are subjected to rigorous scientific evaluation . Case reports are not . .; Q Would epidemiological studies, assuming they are properly conducted, be the moat valuable source that you could refer to in establishing a causal relationship between a chemical and a human effect on tissue? Compared to what? Q Is there any mare valuable source than 10 epidemiological studies? 11 A Well, you ask that question in a broad way 12 in which it makes it almost impossible to answer it . 1,; Epidemiological studies are certainly 14 a very valuable source of information . But when you say 15 an epidemiological study -- there are lots of 16 epidemiological studies that are flawed, that have many 17 biases and other prejudices which would render them 18 useless or perhaps not even as useful as ocher 1y information . 20 3o I think you asked the question 21 long ago, and I think I've already said that epidemioloqy studies are certainly a very valuable bit 22 of information upon which to make causal associations . 23 ,~4 Q And the degree to which they are reliable, atti lair court reporters p.c. 70 Doctor, in terms of epidemiological studies goes to a number of factors including bias and confounding factors? a Sure . _ Q So you would accord different weight to epidemiological studies? 7 m Yea . Q If something is properly conducted and does y not have bias and confounding factors and you believe is 10 a valid study, would you agree that it would be the most 11 valuable type of source material that you could refer to 12 in terms of conducting your analysis of chemical 13 reaction? 14 A When you insert the word "most", the answer 15 to that question cannot be yes . Because I would have to consider all of the other factors . 16 For example, is the finding li biologically plausible . Even though it may be the beat 18 1,3 epidemiological study ever conducted it may cot be ao biologically plausible . Epidemiological studies are certainly 21 a very valuable source of information . And including 22 all of the other factors, yes, epidemioloqy would be a 23 very valuable source and a very critical determinant of 24 atti lair court reporters p.c . 71 cause and effect . Q In terms of your evaluation, Doctor, is a knowledge of the underlying medical condition e necessary component for you to do your analysis? A Yes . Q You have to have some knowledge, for instance in this case, of dermatology ; correct? A I'm sorry . Could you read beck the question . to (Question read .) 11 THE WITNESS : A The question doesn't follow on 1z from the other one . The answer to the first one is yes . 13 I have to have knowledge of the basic underlying medical t4 condition . 1,_ MR . BOTH : Q In this case are we talking about 16 dermatitis? 1"r A Yes, we are . 18 Q Are we talking about psoriasis? ly A No . 20 Q You are not here to talk about whether or 21 not exposure to mineral spirits causes psoriasis, but 22 you are here to talk about whether it caused dermatitis in this man? 23 A Correct . 24 ~atti lair court reporters p.c. 72 Q And do you have an underlying knowledge sufficient in terms of dermatitis in order to reach your 3 conclusions in this case? MR . FOGEL : Are you talking about in and of his 5 own background and experience or to the extent experts are allowed to rely upon other medical records in this case? MR . ROTH : It's not a trick question . All I'm y trying to ask -- and I'll ask another question . 10 Q It is necessary for you, in order to ranch 1 a causal relationship opinion here, to know something 12 about the medical condition this guy developed ; right? 13 THE WITNESS : A Correct . 14 Q What is the basis of your knowledge about 15 dermatitis? 16 A Medical records . 17 Q And that is the medical records of who? A Dr . Phillips and Bluefarb . Q How about Dr . Weir? 20 A No . 21 Q How about Dr . Rrueqer, have you read any 22 materials of Dr . Krueger, including his deposition testimony? 23 A No, I have not . 24 atti lair court reporters p.c. 73 Q Are the only medical records that you have reviewed pertaining to Mr . Rublnski those of Dr . 3 Phillips and Eluefarb? A Yes . Q Is that exhaustive of the sources of F. medical information you have in this sass about his "r medical condition? H A Isn't that the same question? y Q S think -- have you obtained any other 10 information from any other source about Mr . Kubineki's 11 condition? 12 A I have Dr . Phillips' and Bluefarb's 3 records . That is all I have . 14 4 You're not relying on anything Bob Foqel 15 told you in terms of reaching your opinions in this 16 case, are you? 17 A No . 18 Q Would you want to review additional medical 19 records if they were available pertaining to treatment 20 that occurred after the time that Mr . Kubinski was seen ZI by Dr . Bluefarb and Dr . Phillips? 22 A I don't believe so . That would not be information that would be 23 24 significant to you in terms of your opinions in this iktti Flair court reporters p.c. 74 i case? A I don't know . I haven't seen it, so I 3 don't have an opinion about it . Your question was would it be necessary for me to see that? 4 Yes . A I don't believe so . Q Would you want to yea it? A it . I don't necessarily have a desire to see 10 Q Other than what you have read in the It records of Dr . Bluefarb and Dr . Phillips, do you 12 Yourself have any knowledge of dermatitis, of the 13 condition of dermatitis? 14 A No, I do not . 1r Q You are relying entirely the conclusions and 16 diagnosis that they reached, is that correct, meaning 1r Dr . Phillips and Dr, Bluelarb? 18 A S am relying upon their diagnosis, which is 19 also their conclusions . 20 Q You haven't talked to them? A No . 21 22 Q Have you consulted any medical doctor about dermatitis ? 23 A No . 24 atti lair court reporters p.c. 75 Q Have you consulted any medical text ., regarding dermatitis with respect to your work in this case? A Yea . Q What text 81d you consult? A Adams . Q Occupational . . . A Yes, Occupational Skin Diseases . y Q We talked earlier -- is that it? to A No . 11 4 Okay . Why don't you go ahead and tell me . 12 A Occupational Diseases, 1977, and I believe 13 those are the -- and Patty's also . Those would be the 14 texts that I could recall . 15 Q Do you consider them authoritative texts? 16 A Not necessarily . 1 , Q You wouldn't consider any of them to be 18 necessarily authoritative? 19 MR . FOGSL : He isn't rejecting them as 20 authoritative . Now you're taking "not necessarily" to 21 be that he doesn't consider any of the three to be authoritative . ~o MR . ROTH : He said he doesn't necessarily 23 consider the three . . . 24 Datti lair court reporters p.c. 7s MR . FOGEL : It's asked and answered . He's not going to answer it . We don't . . . MR . ROTH : Read the question back . MR . FOGEL : This's not the way depositions work . 5 MR . ROTH : Maybe not fn this jurisdiction, meaning this office . Go ahead and read it back . MR . FOGEL : That's correct . y (Question read .) 10 MR . ROTH : The purpose of that question -- off 11 the record . I 1Z (Discussion held off the record .) 13 MR . ROTH : The purpose is I want to know if he's 14 talking about all three . Because we talked about 15 Patty's before . 16 MR . FOGEL : You've twisted an answer into a l7 question to gain another answer that I'm not going to allow you to get in the form of the question that you asked . 19 If you are really after whet you just 20 stated you're after, then I suggest you break it down to 21 each book or, as we ultimately might have to do, each 22 line . 2:3 MR . ROTH : Q Do you understand the question that 21 atti lair court reporters p.c. 77 was phrased there, Doctor? THE WITNESS : A I thought I did until he read it . Can he read it again . MR . ROTH : If you withdraw your objection, I'll agree to rephrase it . Q All I'm saying is when you say "not necessarily authoritative" is you're not going to say it is with respect to the whole book, every line, every chapter . You have to look at? 10 THE WITNESS : A I have to, with any book or 11 text, look at the entire article, the ward, the phrase, 12 the sentence that is in each and every part of that . 13 Q And that applies not only to Patty's but 14 also the two other texts that you referred to? 1r A Correct . 16 MR . FOGEL : That isn't what you were asking 17 though . 18 MR . ROTH : Q How do you rule out alternate causes, Doctor? 79 20 THE WITNESS : A How do 2 rule them out? 21 Q Yes, as part of your methodology . zz MR . FOGEL : In this case or generally? 23 MR . ROTH : Q In general . 24 THE WITNESS : A In general, no dermatitis or atti lair court reporters p.c . 78 l anything? Q We can do dermatitis . That would be easier . How 8o you rule out possible 5 alternate causes in cases involving dermatitis? A Look at other exposures, other activities, personal ac tivities, uses of other products . Those would be some factors I would consider . Q Is there a methodology that you would employ in order to rule out alternate causes? 10 A I would rely upon information that I have, 11 12 which would be depositions, information from medical records . Those would be the things that I would rely 13 upon . 14 Q It's possible, isn't it, Doctor, to be 15 faced with more than one possible cause of dermatitis ; 16 isn't that correct? 1i A Sure . 18 t s3 Q And both causes could be biologically plausible, correct? 20 a Correct . 21 Q And both factors might satisfy the factors 22 of methodology? 2,3 A Correct . 24 ~atti lair court reporters p.c. 79 Q And under those circumstances, would you be able, to a reasonable degree of scientific certainty, 3 give an opinion as to possibly chemically caused injury? MR . FOGSL : If it's based on a reasonable degree of medical certainty? MR . ROTH : Scientific certainty . 7 MR . FOGSL : What would be more probably true than not true, versus possible, I assume . MR . ROTH : Q Go ahead and answer the question . 10 MR . FOGEL : Make sure you understand the 11 question . 12 THE WITNESS : A Now I'm confused . 13 MR . FOGEL : He's mixing scientific certainty with 14 speculation, and I don't think that's possible . 15 THE WITNESS : A Let me try . 16 If we have a compound over here that 17 could cause dermatitis and it satisfied all the criteria 18 and a compound aver here that can cause dermatitis and 19 it satisfied all the criteria, is there a way to 20 differentially diagnose which of those caused the dermatitis? 21 22 MR . ROTH : Q Yes, sir . A In the absence of a specific test, I don't 23 know . 24 Datti ,lair court reporters p.c. 80 g Am I correct, sir, that under those circumstances, the ones that S just articulated, you would be unable to voice an opinion within a reasonable degree of medical and scientific certainty as to the 5 possible cause? A Possible is the problem I've having with 7 that ques tion . Would I be able to voice an opinion with a reasonable degree of medical and scientific certainty that one of those was a cause? to 4 Yes . i1 A No, I would not . 12 Q Doctor, are all chemicals and substances potential ly toxic in the sense that they can all 13 14 potential ly do harm to the human biologic tissue? 15 A Yes . 16 Q It depends on the circumstances, correct? A St depends on the exposure and the dose . li 1h Q Are there any other factors besides t9 exposure and dose that affect the toxicity of a given substance? 2U A Yes . 21 Q What would be the other factors? 22 A Its physical chemical form, its inherent 23 toxicity . Those would be other factors . 21 Dam lair court reporters p.c . 81 i g Are there some substances, Doctor, that at z certain doses do not create harm but at higher doses 3 would crea te harm? A Sure . Q What are some examples? A Aspirin . Q Does aspirin cause biologic harm if you take it wi thin a regulated dose, say two, 500 milligram tablets of aspirin for instance? 10 MR . FOGSL : A day, for how long? 11 MR . ROTH : Q a day, !or one day . 12 THE WITNESS : A Does the normal therapeutic dove 13 of aspirin cause harm? 14 Q Yes . 15 A Not that I'm aware . 16 Q But if you take ten times the normal dose 17 can that c ause harm to a human? 18 A Probably not . 79 Q It has to be much higher, correct? A That's correct . 20 21 Q Doctor, how do you as a toxicologist z_> determine whether a given dose produces a given effect in human tissue? 23 A Based upon scientific or medical 24 atti lair court reporters p.c. 82 l literature, based upon experience, based upon laboratory) evaluation . Those would be some of the ways . 3 Q In terms of the question of whether mineral spirits can result in dermatitis, how would you determine what dose would be necessary to cause that condition? i a I'd look at scientific and medical literature . I would look at the biological mechanism by which it produces adverse effects . That would be the 10 ways I would evaluate it . 11 4 Is that what you did in this case? 12 A Yea, sir . 13 Q And other than the text that you referred 14 to before and the records of Dr . Phillips and Dr . 15 Bluefarb, what other scientific literature have you 16 looked at? t A I looked at articles by Clautier, by 18 Schwartz, by Lareon, by Cornish, by Mecardi . Those are 19 the ones that I can recall . 20 Q Do you have those here today? 21 A No, I do not . 22 Q Did you provide them to Mr . Fogel . . MR . FOGLL : You got a package of materials at one 23 time . 21 ~atti lair court reporters p.c . 83 THE WITNESS : A I don't think I did, but I think -- I don't know the answer to that . I thought 1 3 did a bibliography, but maybe not . MR . ROTH : Q Are those articles that you are relying on in forming your opinion in this c ase? A They ere articles that I would consider in forming my opinions in this case . Q Are they articles that you did consider in forming your opinions in this cage? 10 A Yes, sir . 11 MR . FOGSL : Is this it? 12 THE WITNESS : That's some of them, yeah . 13 MR . ROTH : We'll talk about those in a while . 14 Can I have a copy of that? 15 MR . FOGSL : Yeah . Do you want to tak e a moment 16 and 2'11 copy it? 17 MR . ROTH : We can continue or we can break now . 18 It's up to you . 19 (Short recess was had .) 20 MR . ROTH : Before we go any further, why don't 21 you mark this as 3, Rarbison Exhibit No . 3 . (Document marked as requested .) 22 MR . ROTH : Q Doctor, I Want to hand you what's 23 z been marked as Harbison Exhibit No . 3 and ask you to atti lair court reporters p.c . 84 1 identify that, please . 2 THE WITNESS : A It is a list of references 3 concerning mineral spirits . 9 Q Did you prepare the Exhibit No . 3 with 5 respect to your work in this case? 6 A I guess I must have . i Q You don't remember? 8 A Yes, I think I did . g Q Okay . to Doctor, referring to Exhibit No . 3, 1l era those all the articles that you referred to in terms 12 of forming your opinions in this case? 13 A Yea . 14 Q Are there other specific articles that you would like to add to that list? IJ A Yes . 16 Q Would you be able to provide me with the 17 author and the name of that article? is 19 A You're asking me at this moment in time, or ever? 20 Q Is it unfair to sit here today and make you 21 zz recite them, or would you need to look at the articles 23 yourself and supplement this later? A I can't do it . I can get you the list . I 29 atti P11air court reporters p.c . 85 don't recall the pagination and that sort of thing . Q How many articles are there? 3 A I would estimate a half a dozen . Q Could I ask you to prepare the list or at ?seat send copies of the articles to Mr . Fogel . Is that okay with you, Sob? MR . FOGEL : I don't know . We'll see . MR . ROTH : Q We'll get to this later . But if you're relying at all or 10 referring to these articles as a basis for your opinion, 11 I would like either a citation or ask that n copy of the 12 article be produced . I will make a request of Mr . 13 Fgel, but I think you indicated you would be willing to 14 Provide a list to Mr . Fogel ; is that right? 15 THE WITNESS : A I would be, sure . 16 4 Does the concept of dose-response 17 relationship apply to this case, Doctor? 1h A Yes . 19 Q What does dose-response relationship refer to? 20 21 A It is the relationship between the dose or 22 the concentration of a substance end an effect . 2 Q Is that a concept that's commonly employed 21 by toxicologists analyzing a possible chemical causation atti ~Iair court reporters p.c. 86 1 of a given condition? A Yes, sir . 3 Q Doctor, have you reached an opinion in this case as to what dose would be necessary to cause 5 dermatitis -- excuse me . Have you reached en opinion in this case as to what dare or concentration of mineral spirits would be necessary to cause dermatitis in a human being? A I have evaluated Mr . Rubinaki, and I have 10 an opinion about that . I don't have opinions about the 1 doses necessary to cause dermatitis . I haven't done 12 that . Q Rave you reached an opinion as to what dose 13 14 was necessary to cause dermatitis in Mr . Rubinski? A Yes . 15 Q What is that opinion? 16 17 A My opinion is that continuous exposure to 18 SV-6 for a period of approximately three weeks was the t9 cause of the dermatitis . Q Are you able to quantify it spy further in 20 terms of what dose he way exposed to? 11 22 A Continuous exposure to 104 percent mineral spirits which was the makeup of the SV-6 for the entire 23 workday for a period of approximately three weeks . 24 atti lair court reporters p.c. 87 Q And how many hours are you referring to when you sap entire workday? 3 A fight to ten hours per day . Q Does the number of hours that he was exposed to SV-6 during that three-week period affect your opinion in this case? 7 A Oh, I considered the entire period . So it's part of my consideration . Yea, it would affect my opinion . 10 Q Assuming, Doctor, that Mr . Kubinski had 11 been exposed to Metalite SV-6 for a period of 30 minutes 12 a day over a period of three weeks, would it change your 13 opinion in this case as to whether or not the dose of 14 mineral spirits caused dermatitis in Mr . Rubinskil 15 A I would have to re-evaluate that . It 16 certainly could . 17 Q What would you need to do to re-evaluate 18 that question? 19 A Well, I'd have to . . . 20 MR . FoOEL : Assuming everything the same but 3t 21 was only 30 minutes exposure over the course of three weeks and he ended up with dermatitis? 22 MR . ROTH : The only variable I changed, Bob, is 23 the time . 24 atti lair court reporters p.c . 88 Q I'm asking what you would have to do in z order to re-evaluate it? THE WITNESS : A I would do all those things I told you before . I would use the same criteria and 5 determine whether or not a 30-minute exposure on a daily h basis far three weeks could have resulted in a dermatitis . Q Would you consult any new sources other than those which you already consulted? 10 A I don't know . I don't believe so, but I 11 don't know . 12 Q In what way would the duration affect your 13 conclusion? 14 A Well, the duration would affect the 15 concentration to which, that is the concentration 16 exposure, to which the individual was exposed to . 17 Q In determining the exposure and dose that 1H you referred to before, which is the basis of your present opinion, what information are you relying on in 19 20 order to make that conclusion, that he had that exposure for eight to ten hours a day for three week? 21 A Do you have something to say? 22 MR . ROTH : He always does . 23 MR . FOGSL : No . Go ahead . 21 patti )lair court reporters p.c. 89 THE WITNESS : A Okay . 2 want to sort of correct) what you're saying . You keep talking about exposure and dose . Remember that ray definition is dose is what you get into your body . So me need to talk about exposure concentration in this case being that which is delivered to the cell, not that which is delivered into his body . MR . ROTH : Q In terms of exposure concentration, Io and in terms of your present understanding of the 11 exposure concentration for Mr . Rubinaki, what 12 information are you relying on in formulating your 13 opinion? 14 A I'm relying upon Mr . Kubinski'a deposition 15 and his description of exposure . 16 Q Other than Mr . Kubinski's deposition, have 17 you reviewed any other depositions in this case? 18 A Yes, I have . 19 0 Of who? 20 a I don't remember how to pronounce it . Mr . 21 Rouchis . That's the only other deposition I've reviewed . ?z 23 Q How is a dose-response relationship ?q established? atti lair court reporters p.c . 90 MR . FOGSL : Let me just add the little caveat, if I may, because your question may -- you asked source of 3 information regarding the description o! exposure and there certainly . . . 5 MR . ROTH : Exposure concentration . h MR . FOGSL : Whatever you want to cell it . 7 He mentioned xubinski's depo . I think there's references 3n Phillips' and Bluefarb's records . I don't mean to necessarily exclude those . 10 But there were reports to them by Rubinski at that time 11 what his exposure was . 12 MR . ROTH : Q Is that information that you would 13 have referred to in forming your opinions? 14 THE WITNESS : A Yea . There was information in 15 the records of Dr . Phillips and Hluetsrb about the 16 length of exposure . 17 Q Let's go back to my question . How is a dose-response relationship established, Doctor? 18 19 A Various doses are administered or received and effects from those evaluated . 20 21 Q And 1s that done as part of scientific studies? zz 23 A It can be . ,, Q is that generally the may dose-response 24 Datti flair court reporters p.c. 91 relationships are established? :, A When you say generally, that's certainly a 3 way to do that . Whether it's generally the way, it depends on the compound . Other ways would be occupational exposure . Q In terms of,occupational exposure, would they not be established, though, through epidemiological studies and individual scientific studies? A Could be, sure . 10 Q In general, scientists don't just look at 11 8n occupation and draw conclusions . There has to be 2 ongoing valid scientific studies to establish 13 dose-response relationships, isn't that right? 14 MR . FOGSL : Always or there may be? 15 MR . ROTH : Always, always . 16 THE WITNESS : A I guess I'm confused about that 17 question . 18 Could you read that question to me, 19 please . 20 (Question read .) THE WITNESS : A I don't understand that 21 22 question . Can you just look at an industry and 23 determine what's going on, no . Does there have to be 24 some sort of scientific method used for evaluating the ~atti lair court reporters p.c. 92 effects, yes . MR . BOTH : Q And how are those scientific methods published and communicated to other scientists? A They could be published in the paper that 5 is reporting a result . They can be published as a h methodology . Those would be some ways . Q But they are published, correct, sir, published studies? y A I don't understand the question . Are 10 studies published? t1 4 We have -- in order to establish a 12 dose-response relationship, am I correct that we have to 13 rely on studies that have been published and 14 communicated to the scientific community? 15 A No . 16 Q What other sources do you refer to in l establishing dose-response relationships? 18 A There could be non-published studies . There could be studies that have not appeared in the 19 peer-reviewed literature that reside within a company 20 who has some occupational experience . It could 27 zz certainly be non'qubliehed studies . Q Would you agree, then, that they would have 23 2! to be studies published or non-published to eetblish a stti lair court reporters p.c . 93 A No . Q Would incidence rate be s proper term to use in determining probability? A The question is to determine probability? Q Yea . a 2'm sorry . I don't understand that 7 question . I guess I don't understand the context in which it's being asked . Q using a dose-response relationship, can a 10 toxicologist establish a probability that a given 11 substance will produce a given effect in the human 12 tissue? 13 A Yes, I believe so . 14 Q And how -- what is the methodology in order 15 to do that? 16 A Based upon the dose-response relationship, ti a dose or a concentration resulting in some dose or a 18 concentration time relationship can be characterized 19 with predictability, such that exposure to that 20 concentration for that time or resulting in that dose would cause an effect . 21 22 Q Does the term "incidence rate" have any meaning within the science of toxicology? 23 A Yes, I believe so . 24 atti P11air court reporters p.c . 95 1 4 What does it mean? Z A It means the frequency with which this 3 occurs . 1 Q This meaning a response to -- excuse see 5 me . What dose "this" refer to? 6 A Your question was equally se vague as my answer, meaning the response, whatever it is . 8 Q Does that go to probability? 9 A I don't understand that question . 10 Q Does incidence rate attempt to quantify the 11 probabilities of a given response to a given chemical? 12 A I don't think so . 13 Q Dosage? 14 A I don't think so . 15 Q Using incidence rates, would a toxicologist 16 be able to state an opinion as to how often a given response would occur to a given dose of a chemical 17 compound? 18 19 MR . FOGBL : Would you read that back, please . 20 (Question read .) THE WITNESS : A Are you talking about the dose 21 and the effect being the same as the incidence rate -- 22 we're talking about all the same thing here, right? 23 MR . ROTH : Q Yea . 24 ~atti lair court reporters p.c . 96 1 A Yes, I believe so . Q Have you done that analysis in this case to determine an incidence rate between exposure to mineral a spirits and dermatitis? 5 A No, I have not . Q Does the word "risk" have a specific r meaning within the field of toxicology? 8 A Yes . 9 Q What does that refer to? 10 A Likelihood of harm . 11 Q And how is that determined? What 12 methodology is followed? 13 A There are different methodologies, but risk 74 is essentially the product of the evaluation of inherent 15 toxicity and exposure . 16 Q Is risk related to incidence rate in its l. meaning -- let me strike that question . 18 Is risk the same as incidence rate? Does it mean the game? 19 20 A No . Q Have you established a risk in terms of 21 using mineral spirits on the human skin in this case -?2 let me strike that question . It is inartfully formed . 23 Have you established s risk analysis za 97 I I ~atti I lair court reporters p.c. in terms of your work in this cage and in terms o! a worker using mineral spirits? A The question doesn't make sense . Risk is the likelihood or the probability of something occurring . Q Have you established . . . A This man -- Q I'm sorry . This men has dermatitis . So I didn't 10 evaluate the probability or likelihood of it occurring . 11 It's already occurred . 12 Q That's talking about Mr . Rubinski? 13 A Right . 14 Q In terms of the general population, did you 15 establish a likelihood of this effect occurring as a 16 result of contact with mineral spirits? 17 A At any concentration for any length of 18 time? Q Yea, sir . 19 A No, I did not . 20 21 Q Going back to the medical literature, the sources that we talked about that you referred to . Does 22 23 that -- would you agree that that represents the state 24 of human knowledge in terms of whether a particular atti lair court reporters p.c. 98 condition can be caused by a particular chemical? A State of human knowledge in anyone's mind? `; Q Well let me withdraw the question and ask you this . We are relying in a sense on the state of 5 medical knowledge and scientific knowledge on whether a h given substance can cause a given effect, correct, when "r we're doing our analysis and when you're following your methodology? A You said scientific knowledge? to Q Yes . A Correct . 11 12 R And am I correct, sir, that the state of 13 scientific knowledge in that context continually 14 changes ; correct? 15 A It can . 1, Q There is additional studies that are done 17 that changes what was true yesterday and may not be true 78 today, correct? m That's correct . 19 Q And it would be incorrect to apply 20 necessarily studies that existed in 1980, for instance, 21 to occurrences that happen today without further 22 investigation as to whether those studies are still 23 valid ; isn't that correct? 24 iktti P'lair court reporters p.c. 99 MR . FOGEL : I object . It mischaracterizes the use of the field of scientific literature . Are you saying -- if you looked at something in '80 and there's new studies 1n '86 that 5 change the conclusions, you certainly would consider both . I don't understand why you're suggesting in your question that something known in '80 shouldn't be considered at the present time . MR . ROTH : Q Do you understand my question? 10 THE WITNESS : A Well that's not your question, is it? 12 Q No . My question way different, I think . 13 MR . P'OGSL : Reed it back . 14 (Question read .) 15 MR . ROTH : Q I think you understand what it is . 16 THE WITNESS : A Let me tell you what I think the 17 question is . The question is if new discoveries, any information has been obtained since 1980, that would 18 suggest that information fn 1980 is no longer correct, 19 could you you or would you change your opinion? 20 21 4 Yes . ?z A Sure . 23 Q Sometimes, Doctor, in the field of 24 toxicology, medical and scientific knowledge is ~am lair court reporters p.c . ioo incorporated into standards ; correct? A Correct . 3 Q TLV would be a good example, threshold limit values? 0 A It's not a standard but it is a guideline, sure . Q How about standards and guidelines, would that be true? A Yea . Q And sometimes those TLVs change, right? 10 11 A Correct . 12 Q And they change on the basis of what the 13 scientific knowledge is at the time they are being evaluated, correct? 14 15 A Not necessarily . That's not a very good l, question, and the reason ft's not is that there may be information or reasons for changing other than 17 scientific reasons . 18 To give you a good example, benzene . 19 It was changed because it thought -- that is, OSHA ZO 21 thought it should be lowered, but, in fact, there was no scientific basis for it ; and it was overturned and not 22 allowed to be lowered . zs So that's the problem I'm having with 24 atti lair court reporters p.c. 1Q1 your question . Q Actually, you answered my question . On the basis of studies, sometimes threshold limit values have been increased or reduced based on studies but also other factors such as that that you just referred to ; right? A Correct . Q in the case of some substances, we've determined that the threshold limit value can actually be higher today than it was in 1980 ; correct? i 11 A I don't know examples of that . 12 Q PCBs, has that changed in terms of the 13 guidelines that have been established? 14 A Na . 15 Q Have there been any metals that have 16 undergone that change where TLVa are higher today than 17 they were ten years ago? 18 A I don't know the answer to that . 19 Q Would you agree that it's an inappropriate 20 to apply standards and guidelines that exist today to 21 conduct that occurred in 1983? MR . FOGLL : Let me object, unless you specify the ?z types of standards or guidelines, or perhaps even 23 24 separate them . We're talking completely in the ~atti lair court reporters p.c. 102 abstract? MR . ROTH : Right . MR . FOG&L : And 2'm assuming you're including the fact -- perhaps you're excluding standards or guidelines today that confirm that which is known years earlier . Because I think confirmatory standards, guidelines, literatures, studies would all be relevant in that respect . (Question read .) 10 MR . FOGEL : I also want to add my objection as to 11 the lack of clarify with respect to what is meant by 12 inappropriate to apply . Depending upon the context in 13 Which your statement applies, it may oleo be a question 14 of law . 2 don't really know how you're using it . 1i MR . ROTH : Q Doctor, what do you think? MR . FOGEL : I suggest you don't answer it without 16 further explanation . li THE WITNESS : A Let me see if I can state it . 1N Would it be appropriate to apply 1990 regulatory 19 standards to actions that would have been taken in 1983? 20 MR . ROTH : Q Yea, air . 21 A No . 22 Q Do you consider yourself an occupational 2 :~ toxicologist? 21 atti Rlair court reporters p.c. 103 A I consider myself a toxicologist which would include occupational, environmental, and other 3 aspects of t oxicology . Q How prevalent is dermatitis in the work place as an occupational illness? a I don't know the answer to that . Q Is it the moat prevalent occupational illness or condition? A I don't know the answer to that . 10 Q How would you define dermatitis? 11 A Inflammation of the skin . 12 Q Would you require any particular severity 13 of inflammation before it would rise to the level to fit 14 within your definition of dermatitis? 1b A Severe reddening, inflammation, swelling . 16 Those would be the criteria that I would consider . Q For dermatitis, correct? 17 18 A Yea, sir . 1y Q Under that definition, then, sir, would 20 irritation, that word, necessarily mean dermatitis? A No, it would not . 21 Q Do you have any knowledge regarding a 22 condition known as psoriasis? 23 A No, I do not . 2-1 atti lair court reporters p.c. 104 Q You were not asked in this case to evaluate whether or not Mr . Kubinski has psoriasis? a No, Z was not . Q And you were not asked to evaluate whether 5 or not any akin problem he had besides dermatitis was h caused by mineral spirits, is that right? 7 A That's correct . Q How many cases are you personally aware of, 9 Dr . Harbiaon, of chemically caused dermatitis? 10 A How many cases have 2 -11 Q That you have personally . . . 12 A -- looked at, seen, or reviewed having to do with chemical-induced dermatitis? 13 14 4 Yes . A I would estimate a couple dozen . 15 16 Q Are you familiar with any other causes of 17 dermatitis other than contact with chemicals? A Other than direct chemical-induced 1R dermatitis ? 19 Q Yes, air . 20 A Yes . 21 Q What are they? 22 A Personal hygiene, physical, like cold, 23 stress, heat . Those would be the ones I could think of . 24 patti )lair court reporters p.c . 105 Q Can anything that irritates the skin potentially cause dermatitis? A Yes . Q Of the couple of dozen cases that you have y personal knowledge of in terms of chemically caused dermatitis, did any of them deal with contact with mineral spirits? A I think you changed my answer to that 9 question . 10 Q I'm sorry if I did . 1l A You did . 12 Q How did I change it? 13 A You asked me the question of how many cases 14 have I eval uated, looked at, seen in which there was 5 dermatitis . 16 4 Okay . 17 A Okay . And now you've said caused by 18 chemicals, and I don't think I've paid that . 19 Q Out of the couple dozen cases of dermatitis 20 that you have seen or evaluated, how many did you determine were due to chemical contact dosage? 21 A I don't know the answer to that . A few, 22 certainly more than one . I would estimate maybe two or 23 three . 24 atti lair court reporters p.c. 106 Q And did you determine a cause for the remainder of the cases that you evaluated and looked at? A I just don't remember . Q In terms of those which you believe to be 5 chemically c aused dermatitis, did any of those deal with h alleged cont act with mineral spirits? A Not that 2 can recall . Q Have you heard or read about any cases where there was a conclusion of chemically caused o dermatitis? 11 A Yes . 12 4 And how many of those cases have you heard 13 or read about? 14 A I don't know the answer to that . Probably three, four . IJ 16 Q Did any of those three or four that you've read about - - in any of those three or four was the 17 agent or chemical mineral spirits? 18 A Yes, I believe so . 19 Q And in how many of those cases? 20 A I would have to go and look at the 21 literature . T don't recall . 22 Q Do you recall the studies or the 23 literature, the books that you saw these in? 24 atti R-lair court reporters p.c. 107 A Yes . Q What would they be? 3 A They're the ones that you have on that list which 3s Exhibit 3, plus the others that I am going to tell you about . Q The ones that I'm going to get . All right . Well I guess I will get back to this . Dr . Harbieon, in 1983 was there any y government or industry standard that required a material o safety data sheet to be provided by a manufacturer or 11 distributor of a product to the purchaser? lZ THE WITNESS : I'm sorry . Could you read that 13 question . 14 (Question read .) 15 THE WITNESS : A Yes, I believe so . 16 MR . ROTH : Q And what is that government or 17 industry standard? 18 A I believe that there was an industry 19 standard to provide n material safety data sheet or 20 information regarding the use of the product to the 1 purchaser . That was an industry standard that was 2 evolving at that particular time . 23 Q has that a standard in place in the ,, chemical products industry? jDatti XD)lair court reporters p.c. 108 A Yes, I believe so . Q And let's go back to governmental 3 regulatory standards . Are you aware of any governmental regulatory standards in 1983 that required a material 5 safety data sheet to be provided by a manufacturer of mineral spirits to a purchaser of mineral spirits? 7 A I am not aware of a governmental standard, no . Q Are you aware of any other published 10 standard or guideline in 1983 that required a material 11 safety data sheet to be provided by a manufacturer of 12 mineral spirits to a purchaser of mineral spirit? 13 a The only published information that I would 14 be aware of is the American National Standard Institute 15 documentation of material safety data sheets . 1`, Q Do you have the specific citation for the 17 standard you're referring to? 18 A It is in 1982 and in 1977 I believe -- '76 or '77 . 19 20 MR . FOGEL : '76 . THE WITNESS : A 1976 . 21 22 MR . ROTH : Q Mr . Fogel just handed you the standards that you referred to? z:3 24 A Yes, he has . pat; flair court reporters p.c . 109 1 Q Now let's . . . 2 A And there is a number by the way . 3 Q All right . Do you want to read the number, a air . s n Z129 . 1 . 6 g Is that the 1982 standard you just referred 7 to or both of them? a No . They actually both have the same 9 number . It's followed by a dash . One is 1976 and one 1n is dash 1982 . Q Okay . 11 12 Can you tell ms specifically -- and 13 you can read it into the record if you want -- what you 14 feel is a standard within that reference that requires 15 MSDSs to be provided by manufacturers of mineral spirit 16 to purchasers . MR . FOGSL : In the introduction is where I think 17 it refers to it, in both . 18 19 THE WITNESS : A Okay . You want me to read you 20 my interpretation of this? MR . ROTH : Sure . I'8 like you to cite the 21 paragraph and the page and read what you believe is the 22 basis of your opinion that there was s published 23 ?q standard . ~Attl ,)lair court reporters p.c . 110 A Let me read you the introduction from page z 6 . "The development of new chemicals and the introduction of chemical processes into ever-widening fields have extenuated the need to provide information 5 for guidance of persona who in their occupation use handle or store hazardous industrial chemicals . The 7 dissemination of this information includes appropriate precautionary statements expressed se simply and briefly y as possible on labels affixed to containers of hazardous 10 chemicals and in other written material provided for the 1 guidance of industrial users ." 1z Q Is there any other part of that -- let's 13 refer to it . I know it was marked -- wasn't this marked in Haimes' deposition? 14 15 MR . FOG$L : Yes . if MR . ROTH : Q This is the 1982 one, Doctor? THE WITNESS : A Yes . 17 Q We are referring to what was previously 18 marked as Haimes Deposition Exhibit No . 37, and you've 19 read me an introductory paragraph . 20 21 To there any other part of that exhibit that you feel is supportive of your opinion? 22 A That's what I would use, sir . That's what 23 I would refer to . 24 atti P' lair court reporters p.c. 111 Q We're referring to the 1976 version, is it, z or '77? 3 A '82 . What I read you is from '82 . Q So we have two versions, the '76 and '82 ; I I 5 correct? a Correct . Q The language you referred to is the same in both versions, isn't it? A You're asking me for just what I read or 10 the language totally? It's different . 11 4 The meaning of the language that you read, 1Z do you feel there's any distinction between the two 13 versions? 14 A There is a difference 1n the sentence . 15 There's an add on in the sentence to 1982 which is not 16 in 1976 . 17 Q What was the add on in 1982, Doctor? 18 A "And in other written material provided for 19 the guidance of industrial users ." 20 Q Can I see this for a minute . Doctor -- and I only have one copy of `1 ?2 this, but the next paragraph after the one that you read does it read "Precautionary labeling shall be used only 23 when and to the extent necessary"? 24 JD atti -?)lair court reporters p.c. 112 A Yea . Q And 1t does not go on to state when and when it is not necessary? Is that right? MR . FOGEL : In that paragraph? j THE WITNESS : A Well I think it does . I MR . ROTH : Q Tell me how it defines it . A The language shall be practical, not based 7 alone upon the inherent properties of a product, but directed toward the avoidance of hazards resulting from 10 occupational use, handling, and storage as may be reasonably foreseeable ." 11 12 Q You believe that defines the word 13 "necessary " then in the preceding sentence? 14 A I believe that adds to what necessary is . 1 _ Q Doctor, is there anything -- let's refer to 16 these on the record . We're looking at the ANSI 17 standards 2129 .1, 1976 and 1982 versions? A Yes . 1N 19 Q Is there anything in these sections that p refers spe cifically to mineral spirits? A Yes, t believe so . 21 ,2 Q Can you show me on what page? A On pegs 8, it refers to hazard chemical -- 23 I'm sorry . "Hazardous chemical : A chemical or mixtures Z-1 atti lair court reporters p.c. 113 of chemicals that is toxic, highly toxic irritant, corrosive," and it goes on . And then it defines ,3 irritant, "A chemical, not a corrosive which on immediate, prolonged, or repeated contact with normal living tissue will induce a local inflammatory reaction ." Q So by definition it encompasses mineral spirits in your definition, correct? y A Yes . 10 Q Does it mention mineral spirits It specifically? 12 A I don't believe it mentions any chemicals 13 specifically . I don't think any chemicals are mentioned 14 specifically, including mineral spirits . 15 Q That includes a21 -- no, excuse me . 16 Can you read the answer back . I guess Z didn't hear you . 18 (Answer read .) MR . ROTH : Q Doctor, in your opinion do the ANSI 19 standards we just talked about establish e requirement 20 ?7 !or the manufacturer and distributor of mineral spirits to incorporate warnings into them in terms of 22 communicating them to the purchaser? 23 ?q MR . FOGEL : Before you answer it, I want to hear Vatti lair court reporters p.c. 114 t that question back, please . (Question read .) 2 3 MR . FOGBL : You can hear it again, if you want . 4 THE WITNESS : A Requirement meaning an :i obligation on the part of the manufacturer? 6 MR . ROTH : Q Sure . A Yes, I believe in 1983 they did have that 8 obligation . 9 Q And what year -- in what year would that obligation have started in the context of these 10 standards? 11 12 A I didn't evaluate that . I can tell you 13 that it's my opinion that it was in 1983 . Q And in your opinion it applied to the 14 mineral spirits sold by Metal Lubricants to Champion 15 Medalist in this cage? 16 17 x It applied to product SV-6 . Q Let's put aside the ANSI standards for a It? minute . 19 Doctor, are you aware of any 20 published standards or guidelines that existed in 1983 21 zz that required a manufacturer of mineral spirits to provide material safety data sheets or other safety 23 information to a purchaser of mineral spirits? 24 115 I I watt; I lair court reporters p.c . MR . FOGEL : Are you talking about codes, 2 standards, federal rules, versus general obligation of a 3 manufacturer? MR . ROTH : I'm talking about published standards . 5 THE WITNESS : A I don't know of other standards . And my opinion is for SV-6, not for mineral spirits in general . Q How does your opinion differ between SV-6 and mineral spirits in general? 10 A Well, it differs in that this is a specific 11 product that has an intended use . 12 Q And whet is that intended use? l3 A To be used as a cleaner, as a solvent . Q Absent that intended use, would your 15 opinion be different as to whether those ANSI standards 16 would apply to SV-6 in this case? 17 A I'm sorry . 18 Q I'm sorry, Doctor . I thought you just told 19 me that those standards applied to SV-6 in this case 20 because it had an intended use as a cleaner, correct? a As a foreseeable use, that's correct . 21 22 Q In general, if mineral spirits was a generic product being sold without an intended purpose, 23 24 would it be your opinion that those standards do not patti D) lair court reporters p.c. 116 1 apply? ,, A It depends on what the foreseeable use of 3 that product would be . Q What are the foreseeable uses of mineral 5 spirits in your opinion, Doctor? a To be used as a constituent of paints, 7 could be used as a material to clean paint brushes or clean other substances . Those would be some uses . I Q Is it s foreseeable use of mineral spirits 10 that they would be used as a cleaner of machine parts? 11 A It depends on how it's sold and to whom 12 it's sold . 13 Q Is it a foreseeable use that a worker in a 14 factory would use SV-6 to clean metal parts with his hands without gloves on? 15 16 A Yes, I believe so . i . Q And what's the basis of your opinion? 18 A Well, the standard operating procedure for 19 the use of solvents, which is to take these materials in Zi a container and to dip parts in them, to use rags soaked with material to clean those parts, that standard 21 occupational operating procedure, it would be reasonable to foresee the use of this material in that manner . 2.3 Q Before, I think you were talking about 24 atti lair court reporters p.c. 117 industry standards, non-published standards, is that correct, back in 1983? i A I don't know . Q Okay . Let me go back then . Because I kind 5 of flipped it around there . Are you aware of any non-published industry standards that existed in 1983 in the chemical products industry that required a manufacturer of mineral spirits to provide safety information to the 0 purchaser of mineral spirits? 11 MR . FOGSL : Could you read it back for me . 12 (Question read .) 13 THE WITNESS : A I don't understand the 14 terminology of non-published industry standards 15 required . 1h MR . ROTH : Q Was there any custom or standard in 17 the chemical products industry that required a seller of R mineral spirits . . . 1y MR . FOGSL : That's where you get lost . 20 THE WITNESS : A That's the problem . 21 MR . FOGEL : When you get from customer standard 22 to required . In this case we know that several 23 companies provided the information which may reflect the 24 custom but not necessarily a requirement . ~atti lair court reporters p.c . 118 MR . ROTH : Q Let's talk about the custom and practice in the industry . Are you aware of any custom and practice in the industry, the chemical products 5 industry, in 1983 that required a seller of mineral spirits to provide product safety information to the purchaser of mineral spirits? THE WITNESS : A We have the same problem with the question . It the question is am I aware of a custom 10 in 1983 to provide information regarding the safety and use of that product, yes . Was it required, I don't know 12 of a requirement . 13 Q In your opinion, did the custom that you're 14 aware of constitute a requirement that such information 15 were to be provided by a seller of mineral spirits to a 16 purchaser of mineral spirits? 17 A I don't know the answer to that question . 18 I've never evaluated it that way . 2 don't know of a 19 requirement . I know of a custom, a practice . I don't 20 know of a requirement . 21 Q Do you consider yourself knowledgeable of 22 the customs in the chemical products industry in 1983? 23 A Yea . .214 Q And do you consider yourself knowledgeable ~atti lair court reporters p.c . 119 t in that custom as it relates to providing product safety I information, material safety data sheets to purchasers by manufacturers and sellers? A Yea . Q Are you aware of an industry custom in the chemical products industry in 1983 where a purchaser would not be provided with product safety information until and unless the purchaser requested it? THE WITNESS : I'm sorry . Could you read that . 10 (Question reed .) 11 THE WITNESS : A I'm not aware of such a custom . 12 Those that I am familiar with would have provided that 13 information . 14 MR . ROTH : Q And who are those that you're 15 Familiar with? 16 A Texaco, BASF, Monsanto, Dow, Shell . Those 17 would be the ones I'm familiar with . 18 Q You've read Mr . Rouchis' deposition, haven't you? 19 20 A Yes, sir . z1 Q And is it your understanding that it was 2z the custom of Metal Lubricants not to send out material safety data sheets unless their customers specifically 23 24 requested it? atti lair court reporters p.c. 120 A Yes, I'm aware of that . Q Is that the only incident that you are aware of where that custom existed in the chemical products industry in 1983? MR . FOGEL : I'm a little concerned with you i> ascribing custom to what Metal Lubricants dad versus their particular practice . 2 mean, you give the implication that this is a custom meaning that it's some habit that's occurred over a period of time by groups 10 generally, versus the custom unique to Metal Lubricants or a practice followed by Metal Lubricants . 12 Do you still want to use "custom"? MR . ROTH : Sure . 14 THE WITNESS : A That's the problem I have with 15 the question . The problem I have with the question is 16 the word "incidence" . Incidence has to be more than 17 one . 18 Am i aware of anyone else who might have been done that? t9 Q Yea . 20 A Yes . 21 Z. Q And who would those be? A I don't know specifically . I'm sure there 23 were other corporations that did not send out material 24 atti lair court reporters p.c . 121 safety data sheets unless requested . z MR . ROTH : All my questions have been product 3 safety information or material safety data sheets that he's answered, I believe, except when I specifically pared one off . h MR . FOG$L : The answer is, I guess, as recorded . 7 MR . ROTH : The transcript will speak for itself . MR . ROTH : Q Dr . Harbison, in your opinion if a company were selling mineral spirits to an industrial 10 user who intended to use them as cleaners, or intended 11 to use mineral spirits as cleaners and the seller did 12 not send product safety information or material safety 13 data sheets unless it was requested by the purchaser, in 14 Your opinion would they be in violation of the ANSI 15 standard that we referred to before? 16 MR . FOGEL : Could you read it back . It pounds 17 tike negligence -- 2'm not sure the focus is on the 18 conduct of the manufacturer-supplier versus the product 1y in the context of this case, but go ahead and read it 20 back . 21 MR . ROTH : I don't know what you mean, but we can hear it back . 22 23 MR . FOaEL : Could you yo back to where he said 2k product safety information, material safety data sheets . ~etn lair court reporters p.c. iZa (Question read .) THE WITNESS : A I don't think that I referred to 3 the ANSI standard . I talked about the ANSI recommendation or the ANSI guide lines . 5 There are -- there's no standard that ANSI promulgates, and there's not as such a violation of that standard . Did they provide information as was the usual custom of manufacturers in 1983, my answer 10 would be that they probably did not . 11 MR . ROTH : Q Doctor, does the ANSI standard -12 excuse me . Does -- the ANSI recommendation, is 14 that the correct terminology? 15 A It's not a standard . 1`, Q Are you comfortable with the word 17 recommendation? 18 A Guidelines for precautionary labeling is t s~ what it is . Q Okay, Doctor . 20 2t MR . FOGBL : Wait, wait, wait . I'm a little 22 confused here with where we're going . THE WITNESS : It does say standard, doesn't it . 23 21 MR . FOGEL : This is a standard . Datti !`71air court reporters p.c . 123 j MR . ROTH : It is what Dr . Harbison says it is . he's the expert . MR . FOGEL : The American National Standards Institute developed this standard for industrial hazardous materials labeling . h MR . ROTH : Q Doctor, what 8o you want to call it? MR . FOGEL : I'm going to call it a standard that y sets forth certain -- within the standard requirements 10 no one is required to comply with the standard, but in 11 that sense I suppose it is recommendations to the 12 industry . 1,3 MR . ROTH : Q Doctor, what do you want to call 14 it, a standard or a guideline . 15 THE WITNESS : A Well it calls it a standard . 16 Why don't we define what standard is or at least my 17 interpretation of what standard means . 18 Q Please tell us what your interpretation of 19 of whet standard means in the context of the ANSI 20 standards . 21 MR . FOGBL : It is a standard . zz MR . ROTH : It's a difference without a 23 distinction in terms of this deposition . 24 Q Go ahead, Doctor . I would like to hear atti lair court reporters p.c. 124 your definition of standard in the context of the ANSI L documents that you have in front of you right now . 3 THE WITNESS : A When I refer to standards I think of a regulatory standard that has regulatory meaning . That is, a governmental body has a standard that is enforceable by law . This is a standard that is created by R a volunteer organization that you can choose to use or not use . That is, there are no sanctions of law for 0 failing to use that standard in the sense of a violation 1 of a standard . 12 It is a guideline or e recommendation 13 that's made by this group for that industry, in fact, it 14 has sponsored -- it says "Sponsored by the Chemical 15 Manufacturers' Association ." So it's a guideline, 16 again, that would determine the course of activities of 1_ producers regarding the labeling and providing of safety 8 information . 13 Q Do you have any opinion o! whether that is reflective of the custom and practice in the industry in 20 1983? 21 z a Yea . ,3 Q What 1s your opinion? 24 A Same as it was before . I believe that it Until lair court reporters p.c. ia5 was the custom and practice to provide safety and health information regarding products that were sold to 3 customers . Q Is the ANSI guidelines -- or standards, are those materials that are commonly accepted in the chemical products industry? A I don't know the answer to that . Q Doctor, the standards themselves . MR . FOGEL : There you go again . 10 MR . ROTH : we just said it is a standard or a 11 guidelines . 12 Q With the exception of the paragraph where 13 they say that the language should be practical and not 14 based alone upon inherent properties or products but 15 directed towards the handling and storage that may be 16 reasonably forseeable, insofar as an additional 17 definition of when and when it is not necessary, this 18 standard doesn't speak to that ; does it? 19 MR . FOGEL : Speak to what? 20 THE WITNESS : A Speak to what? 21 MR . ROTH : Q Other than that sentence, does this standard speak to when product information is necessary 22 and is not necessary? 23 A I'm sorry . You're asking me to eliminate 24 atti P11air court reporters p.c . 126 that sentence? Q I'm just saying -- let me withdraw the question . The language indicating when and when ,, not a safety product warning is necessary is rather vague . Would you agree with that, in general? i A I think it's quite clear . It says that ft should be directed toward the avoidance of hazards resulting from occupational use, handling, and storage that may be reasonably foreseeable . It doesn't tell your 11 exactly what to do, but that's the guiding light . 12 Q Does it define what hazards it's referring 13 to? 14 A Yes . 15 Q And what hazards is it referring to insofar 16 as it pertains to mineral spirits? 17 A "A chemical that is either toxic or highly lH toxic, an irritant corrosive, a strong oxidizer, a 19 strong seneitizer, combustible, and it goes on with many zo other things, or that otherwise may cause substantial 21 acute or chronic personal injury or illness during or as a direct result of any customary or reasonably 22 foreseeable handling or use . Irritant : A chemical, not 2.4 a corrosive, that causes a reversible inflammatory 24 ~atti lair court reporters p.c. 127 effect on living tissues by chemical action at the site z of contact ." Q And in your opinion mineral spirits fell within that definition, correct? A Yes, air . Q And in 1983 were the propensities of mineral spirits, in so for as it caused the hazards outlined in that definition, well known to the chemical products industry? In A Yes, air . 11 Q And by what source were they sell known? 12 A By the sources we've talked about, the 13 scientific literature, the textbooks, the publications 14 of the United States Public Health Service which is the IJ Occupational Disease textbook that I referred to . Those 16 would be the sources . 17 Q Doctor, is dermatitis always an acute 18 condition? 19 A I don't know the answer to that . 20 Q Is dermatitis always something that someone 21 should avoid getting from dealing with chemicals? z2 A Sure . z`; Q Is it a serious occupational hazard? 24 MR . FOGSL : Well you're talking about absent any atti lair court reporters p.c. 128 other -- well go ahead . Answer it . THE WITNESS : A It could be . It is reversible, but it could certainly cause discomfort, pain . Certainly something to be avoided . 5 MR . FOGBL : Ocher sequellae . MR . ROTH : Like what? MR . FOGBL : From dermatitis -- do you want me to give you a list? Dr . Weir will be more than happy to extend on the list of complications of people who 10 develop dermatitis . You make it sound that -- perhaps 11 the problem in this case is you think dermatitis is no 12 big deal and without complications . 13 MR . ROTH : Yes . 14 Q Well, doctor, do you agree that dermatitis 15 is commonly encountered in the work environment? 16 THE WITNESS : A Well I think you've already 17 asked me that question in another way . And it's tS certainly found in the work environment . It's even common in the work environment, depending an the 19 20 occupation and what work is performed . MR . ROTH : Off the record . 21 z2 (Short recess was had .) MR . ROTH : Q Doctor, earlier you explained the 23 effect of mineral spirits on skin . Can you tell me what 21 atti lair court reporters p.c . 129 i the component of mineral spirits is that actually causes the effect on the akin? Is there a particular 3 component? THE WITNESS : A Various hydrocarbons . Q And the effect on the akin insofar as it pertains to the development of dermatitis is it the same for aromatics as it is for aliphatics? 11 The same mechanism? Q Yes . 10 A Yea . 11 Q Are you familiar with the concept referred 12 to as maximally tolerated dose? 13 A Yes . 14 Q Does that have a meaning in the field of 15 toxicology . 16 A Yes . 1, Q What does it refer to . Doctor? 18 A It refers to the dose that is used in 19 experimentation or testing that is a lethal or nearly 20 lethal dose or causes a significantly near number of the 21 teat population to become overtly ill or to die . 22 Q Has there ever been a maximally tolerated 23 dose for mineral spirits established to your knowledge? A Yea, t believe that there has been . 24 ~atti lair court reporters p.c . 130 Q And what is that maximally tolerated does? A I'd have to look it up . ,3 Q Do you know where it would be published? A I'd have to look it up . It may be published in the Registry of Toxic Effects . I don't know . Q Doctor, are you aware of any epidemiological studies that have established an association between mineral spirits and psoriasis? 10 MR . FOGSL : Could you read the question back, 11 please . 1z (Question read .) 13 THE WITNESS : A I haven't looked . I don't know of any . 14 15 MR . ROTH : q Are you aware of any case reports 16 that have established an association or causal 17 relationship between exposure to mineral spirits and psoriasis? 18 19 A Again, 2 haven't looked and I don't know . Q Are you aware of any animal studies that 20 have established such a causal relationship? 21 A No . 22 Q are you aware of any anecdotal literature 23 that establishes or purports to establish a causal 21 jD atti ,?lair court reporters p.c. 131 1 relationship between exposure to mineral spirits and 2 psoriasis? A No, I'm not . MR . FOGSL : Are you aware of any, Brad? MR . ROTH : It's attorney work product . I can't ever tall that . Q Doctor are you aware of any epidemiological studies that establish an association between exposure 9 to mineral spirits and dermatitis? 10 THE WITNESS : A I think there are some in my 11 list . I don't recall them . 1Z It's not going to do any good to show 13 me that list . I think the one by Nethercot or 14 Nethercoft -1 . Q Netheraott? 16 A Yes . lr -- I believe is a small number of 18 patients . I don't know it I'd classify it as an 19 epidemiological study or not . 20 g Would you characterize it as a properly 21 conducted epidemiological study? A I don't think it's an epidemiological study 22 Z ; Q Are you aware -- 2-1 A I think it's several reports . I am not am lair court reporters p.c . isa aware of a specific epidemiological study . Q Are you aware of any studies on the issue 3 of association between exposure to mineral spirits and dermatitis? 5 A Yes . Q Are you aware of any case reports that establish a causal relationship between exposure to i mineral spirits and dermatitis? A I believe the Klauder study . 10 Q 1947, correlation of boiling ranges of some l petroleum solvents with irritant action on akin? 12 A Yes, sir . 13 Q And you said you believed -- does that la establish in your opinion, sir, a causal relationship between mineral spirits and dermatitis? 15 16 A Did that study? 17 Q Yes . 1N A No . t9 Q Did it examine the issue of whether there 20 was a causal relationship between exposure to mineral spirits and dermatitis? 21 2z A I believe that it did, yes . Q Do you know what the conclusion of the 2:3 author is? 21 ~atti ,,lair court reporters p.c. 133 A I don't recall specifically, no . Q Was there a conclusion set forth 3n that 3 article that there is a causal relationship between exposure to mineral spirits and dermatitis? A I don't recall specifically . h Q Any other case reports that you're aware of that establish an association or a causal relationship between mineral spirits and dermatitis? A Remember, the case reports -- 10 Q Yes? l A -- don't establish causal relationship . So 12 the way you're asking the question is contrary to what I 13 previously told you . 14 Q Is association a better term? 15 A They don't even establish an association . 16 A case report is simply a report of an observation . It li may do nothing more than simply report the observation . 18 It doesn't necessarily establish an association or a t s3 cause . q Cave reports alone are not sufficient to 20 zi establish an association or causal relationship, ?z correct? A That is correct . 23 Q Are you aware of any case reports that set 24 Datti ,lair court reporters p.c . 134 forth an observation that a dermatitis was caused by z exposure to mineral spirits? A Well, that's what I've been talking to you about . I believe that the Rlauder study may do that . 5 Again, I don't recall specifically . Hut that list of what you have is whet I recall as being either a report of irritation or dermatitis . Q Other than the Klauder article, are you aware of any other case reports? 10 A Well, yes . The ones that are listed there 11 are either case reports or studies . 12 Q Okay . 13 Let me show you what's been marked as 14 Exhibit No . 3 . I think we talked about that before . Did you already identify that on the 15 record . Doctor? I don't remember . 16 17 MR . FOGSL : Yes . THE WITNESS : A Yes . 1R MR . ROTH : Q Okay . 19 Are those articles set forth in 20 Exhibit Ho . 3 all studies or case reports that examine 21 the relationship between mineral spirits and dermatitis zz or make observations pertaining to that relationship? 2:3 A Yes . 24 atti P' lair court reporters p.c. 135 Q And of those articles, Doctor, which ones have concluded that there is such a relationship? A I don't recall the conclusions of each of these articles . I'd have to look at them . Q Okay . MR . FOGSL : May I ask the doctor a question? MR . BOTH : Sure . Q Doctor, let's just keep our comments confined to what appears on Exhibit No . 3 . 10 With respect to the Cornish article, It Toxicology, the Basic Science of Poisons, which I 12 think -- is that a chapter that you're referring to? 13 I'm referring to the Cornish reference . 14 A Correct . 15 Q Is that a book chapter? lEi A Yes, it is . 17 Q Did you rely on that book chapter in 18 forming your opinions in this case? 79 A I considered it . 20 Q Does that book chapter establish in your 21 opinion a causal relationship between exposure to 92 mineral spirits and dermatitis? A 2 told you a couple hours ago what it takes 23 to establish the cause . 24 Datti lair court reporters p.c. 136 No single article, no single study, no single cage report establishes the cause . The cause is established by consideration of all those factors that I told you about before . This is part of it, which is the literature precedence or the scientific and h medical literature which would support mineral spirit as being an irritant or a cause of dermatitis . 7 Q The Cornish book chapter is a literature precedent, a component of your literature precedent in 10 this case ; is that right? 1l A Yes, sir . 12 Q Does the same hold true of the references 13 made on this list? 14 A Yes, sir . Q Referring to the Larson article, No . 3, 15 16 what type of article is that? Is that a case report? A Yea, it is . 17 tH Q Can you recall as you sit here today the details regarding that report? 79 20 A No, I don't . 21 Q If you had that article in front of you today, would you be able to provide us with your 22 opinions on what significance that article would have? 23 A Sure . 24 ~atti lair court reporters p.c. 137 Q The next article is McDermott, correct, 2 Hygienic Guide Series, Stoddard Solvents? 3 A Yes, sir . Q What kind of article is that? A It is a report of the effects of Stoddard solvent on humane exposed to 3t . Q And what 3s the conclusion of the author in that study? A That Stoddard solvent is an irritant and 10 causes irri tation to the skin . I believe there is also 11 information in there about inhalation . Those are the lz things that are in there . 13 Q Did that particular study address the 14 question of whether mineral spirits can cause 15 dermatitis? 16 a I don't know . I'd have to look at 1t . Q What is Stoddard solvent? 1 "r A stodderd solvent is a hydrocarbon that is 18 19 similar or the same as mineral spirits . 20 Q In terms of its effect on human akin, do zt you draw any distinction between Stoddard solvent and mineral spirits? zz A No, I 8o not . 23 2x Q Do you believe that the articles that atti lair court reporters p.c. 138 1 address Stoddard solvents set forth in Exhibit No . 3 are equally applicable to mineral spirits? A Yea, I do . Q Let's talk about No . 4, Nethercott . 5 A Yes . h Q Can you read the title of that article into the record . 7 A Genital Ulceration Due to Stoddard Solvent . p What kind of literature is that? Is that n to case report? 11 A It is a report of five cases in which 12 individuals were exposed to Stoddard solvent, the 13 conclusion being that if the Stoddard solvent is entrapped on the skin that the effects are more severe 14 15 than simply exposing the skin to 3toddard solvent . It 1E; could result in ulcerationa, cell death . 1` Q What is the conclusion of the author? A A typical clinical picture in investigative 18 ~s results were consistent with irritant contact 20 dermatitis . Q And -- I'm sorry, Doctor . They drew a 21 22 distinction between confined -- or pardon me -- earlier you indicated there wag a distinction drawn between exposure . . . 2.1 patti )lair court reporters p.c. 139 MR . FOGEL : Wait, wait . That's what he did . He didn't give you a distinction . You are making a distinction . MR, ROTH : We can go back and read his answer if you want . MR . FOGEL : The record will speak for itself . I 7 think you're changing the intent of the statement . MR . ROTH : Q Let me ask you this . What type of y exposure did they examine in those five cases? What 10 were the circumstances? 1l THE WITNESS : A They examined lesions on the 12 buttocks and on the genitalia as a result of exposure to 13 Stoddard solvent . 14 4 Did they examine any exposure to mineral 15 spirits -- or Stoddard solvents excuse me -- whether 1s that exposure took place during the course of handling 17 machine parts or manually coming in contact with mineral 18 spirits? 19 MR . FOGSL : This has previously been marked as 20 Haimea Exhibit 22 . 21 THE WITNESS : A The question is did any of these 22 people clean parts? MR . ROTH : Q Right . 23 24 A I don't see where it indicates that any of ~atti lair court reporters p.c. 140 1 them were cleaning parts . 2 Q What was the nature of the exposure? 3 A Exposure to printing ink at printing ink 4 plant . 5, Q In your opinion, is exposure to printing 6I ink comparable to exposure to mineral spirits? 7 A I don't know . It would depend on shat the printing ink is made out of, what its constituents are, I MR . FOGEL : I think in the case reports it 9 explains that . to 11 THE WITNESS : His question is is printing ink equivalent to mineral spirits . 12 13 MR . FOGEL : Right . THE WITNESS : A I don't know what the printing 14 ink was composed of . l MR . ROTH : Q Was there a 3tod8erd solvent in the 16 printing ink? 17 1R A Yes, I believe so . Q Was the manner in which the Stoddard 19 solvent was incorporated into the printing ink 20 comparable to the effect that mineral spirits would have 21 on the skin -- let me strike that . ?z Do you draw any conclusions from this 23 article that support your opinions in this case? 24 ~etci lair court reporters p.c. ias i A Yes . Q and what are those? A That 9toddard solvent is able to produce ,} skin irritat ion and ulceration if it is entrapped within the clothing of those individuals who are exposed . Q Any indication in this caste that the mineral spir its was entrapped during the exposure to Mr . Kubinaki? A Not that I'm aware of . 10 Q We'll look at that later . 1t There are other articles, in any 12 event, that you have not included on this particular 1 ,; historic reference ; correct? 14 A It's the ones we talked about before . 15 That's corre ct . 16 Q All right . 17 Other than the articles that are 18 contained on Exhibit No . 3 and the articles which you 19 haven't yet included on this which we've referred to, 20 are there any other articles that you are aware of that establish a literature precedent in terms o1 your 21 methodology that you employed in your conclusions in 22 this case? 23 24 a Those would be the two sources that I would ~atc~ lair court reporters p.c. iaa have used . Q Are you aware of any articles that would support the conclusion that mineral spirits do not cause or does not cause dermatitis? 6 A In my opinion there are occasions in which Stoddard solvent or mineral spirits do not cause 7 dermatitis . Q Depending on the use? A Depending on the exposure . 10 Q Are you aware of any articles that address 11 that particular issue? 12 A I don't recall any . I'd have to go back 13 and look . 14 Q If you were to find those articles, Doctor, 15 would you include them in your analysis as to whether 16 there is a literature precedence to establish a causal 17 relationship between exposure to mineral spirits and 18 dermatitis -- would they be important to your opinions in this case? 19 20 A Sure . 21 Q Let me condense that down . 22 A Sure . z:i Q Is there a threshold limit value that has 21 ever been established for mineral spirits? atti P-lair court reporters p.c . 143 A Not that I'm aware of . Q Are you aware of any permissible exposure level that has ever been established for mineral spirits? 5 A No, I'm not . Q are you aware o! any other -- strike that . do TLVs -- I'm sorry . A When we say mineral spirit, are we y including Stoddard solvent? 10 Q You believe they are more or lees 11 interchangeable insofar as their effect on human akin? 12 A I believe their effects would be similar . 13 Q Why don't you tell us in terms of Stoddard 14 solvent . 15 A There is a TLV for Stoddard solvent . 16 Q And what is that TLV? A I believe it's a hundred parts per million . 17 18 Q And that is the measurement that would 19 pertain to skin contact? 20 A No, that would be air . 21 Q Is there a measurement that would pertain specifical ly to dermal contact? 22 A I don't know the answer to that . 23 Q Are you aware of any such standards 24 atti lair court reporters p.c. 144 established by the American College of -- pardon -- Governmental industrial Hygienists or OSI3A that j establish similar standards for dermal contact? A Yeah . Soma of them are for dermal as well 5 as inhalation . h Q How about 3toddard solvent? A I just answered that question . I said I didn't know . Q Doctor, have you acted as an expert in 10 other litigation involving claims for personal injuries? It A Sure . 1Z Q How many? Is that a hard question? Do you ,3 want me to limit it? 14 a I don't have . . . 1 ; MR . FOGSL : Which question do you want him to 16 answer, the how many or the second question? 1 MR . ROTH : Q Go ahead . How many cases have you 18 acted as an expert in cases involving claims for personal injuries? t THE WITNESS : A I don't have a record . It's 20 21 certainly been mare than 20 . How many times more, I don't know . 2? Q How many in the last year? 23 A I would estimate five . 21 em lair court reporters p.c. ias Q Out of the at least 20 that you referred to, how many of those have you acted as an expert for the plaintiff as opposed to the defendant? A I don't know the answer to that . I Q Is this the only case that you acted as an expert on behalf of a plaintiff? 7 A No . Q Can you give me a relative percentage breakdown in your cases? 10 A No, but I can tell you some S have . I it don't have a percentage breakdown . I can tell you some ` I have . I c an remember those . 13 4 Do you know whether you've acted as an 14 expert more on behalf of plaintiffs than you have 15 defendants? 16 A No . It hasn't been more plaintiffs . I would suspect it's been more for defendants . 18 Q I limited my earlier question to litigation 19 arising from claims for personal injuries . Have you 20 acted as an expert in litigation that arises from non-personal injury claims? 21 A What is that? 22 z;; Q property damage or commercial litigation . 24 Have you acted in any other capacity in the legal atti R- lair court reporters p.c. 146 1 process as an expert? 2 A I'm not sure what testimony -- testimony 3 for enforcement proceedings . a Q Compliance proceeding, enforcement 5 proceeding, any such non-personal injury proceedings . 6 A Yea . Q On how many occasions? 'r A I don't know the answer to that . I could tell you some I could remember . I would estimate 9 probably a dozen times . 10 11 Q What percentage of your income 8o you 12 derive through acting as an expert in litigated matters? A About 30 percent . 13 Q Do you have an hourly charge? 14 15 A Yea . Q What is that? 16 A $175 . 17 Q Is that what you're charging in this case? 18 A Yes, sir . 19 Q And is that the same regardless of the 20 activity, whether it is here at a deposition, reviewing 27 records, or at a trial? za A Yes . 2s Q Have you also been a speaker at legal 24 I I ~atti lair court reporters p.c. 147 seminars? A Yea . 3 Q How many times over the past year have you done that? A The past year would be 1990? Q Yes . A Twice . Q Do you derive any income through that activity? 10 A Yes . 11 Q Can you give me a percentage of your income 12 that you derive through speaking at legal seminars? 13 A bass than 1 percent . 14 Q You've given your deposition before, I take 15 it? 16 A Yes . 17 Q And have you also testified at a trial 18 before? 19 A Yes . 20 On how many occasions have you testified at trial? 21 MR . FOGSL : In the last year? 22 MR . ROTH : Q Ever . 23 THE WITNESS : A I don't know ever . That is, I 24 Dam lai r court reporters p.c . 1b8 don't recall . Q The past five years? A I'm sure I can't give you the past five years . I could probably give you the last year . _ Q Okay . A 2 would say within the last year it's probably T would guess four times, five times . Q Have you ever testified at trial in a case pending in Illinois? 10 A Yes . r1 Q Would that be Cook County? 12 A Yea . Q Do you remember the name of the case? 13 A No . 14 1 _ Q Do you remember the name of the attorney 16 who retained you? 17 A No, 2 do not . 18 Q Do you remember what the issue in the case was in terms of your expert opinions? 19 A Yep . Lv q What was that? 21 A The issue was carbon monoxide and the 22 effects on development of -- I believe it was either 23 multiple sclerosis or muscular dystrophy . I don't 24 patti )lair court reporters p.c. 149 remember which one . Q Have you given your deposition in Illinois 3 before? A Yea . Q Other than maybe that carbon monoxide case I you just talked about, how many other cease have you given your deposition in in Illinois? A I don't understand what "maybe" means . Q Well I'm trying to exclude the one case 0 about carbon monoxide . 11 Excluding that case, have you given 12 your deposition in Illinois before? 13 A Yes . 14 Q And has that been in the last year? 15 A Yes . 16 Q Do you remember the name of the attorney 17 who retained you? 18 A Yes . 19 Q What was that attorney's name? 20 A Barbara DeCoster . 21 Q Do you know -- oh, I know what firm she's with . 22 What was the issue that you addressed 23 in that case? 24 atti lair court reporters p.c. 150 A Well, actually that deposition 3s not finished . So I don't think I can talk about that . I can tell you generally the product . The produc t is a steriod used for the treatment of various eye conditions . Q Is that the only deposition that you've given in I llinois? MR . FOGEL : This year? MR . BOTH : Q Ever -- last five years . Excuse to me . 11 THE WITNESS : A I'm not sure I can remember the 12 last five years . I can remember another one, and that's 13 about the best I can do . 14 Q Do you remember the product involved? 15 A Yes . 16 Q What was that? A Dersvan . li 18 Q What is Derevan? 19 A It is a pesticide . And P'icam . 20 Q Is that a phosgene? A No, it's carbonate . 21 22 Q Do you remember the name of the attorney who retained you in that case? 23 A Yes . 24 Patti DJlair court reporters p.c . 151 1l Q What was the name of the lawyer? IA 3Ii Q 4I case? Jim Hofert . And that was for the defendant in that 5 A Yea . 6 Q Doctor, have you ever testified et a 7 deposition where the product involved was a petroleum 8 solvent or cleaner? 9 A I'm sure I have . 10 Q Can you recollect any details? 11 A I can probably recollect a few . 12 Q Go ahead then . 13 A What would you like to know? (4 Q The name of the case, who retained you, and 15 what the product was . 16 A I don't know the name of the case . I could 17 tell you what the product was . It was xylene, toluene . 18 The name of the attorney was Chris Biscard . Q Was that . . . 19 A Do you want me to recall more? 20 Q Let's stop on that one . 21 Do you know where that case was zz pending? 23 A Yes . 24 T,) atti !)lair court reporters p.c . 192 Q Where? A Los Angeles . Q Was that for the defendant or the plaintiff? A For the defendant . f, Q Any others that you recall? 7 A Yes . Benzene, William Armstrong, San Francisco . Q In what year did you give your deposition 10 in that cas e? 11 A I don't recall . It's probably in the last 12 four years . 13 Q was that for the plaintiff or for the defendant? 14 t5 A It was for the defendant . Q In terms of the ocher cases in which you 16 evaluated the xylene, what year was that, do you know -- 17 the first one you told us about in Los Angeles . IH A I don't recall the year . I would put that 19 within the last three years, tour years . 20 Q Do you keep copies of your deposition 21 testimony? 22 a No, I do not . 23 Q Are there any other cases you can recollect gA atti lair court reporters p.c. 153 where you gave opinions concerning petroleum solvents or cleaners? ,3 A 2'm sorry . What was the last part of that? Q Petroleum solvents or cleaners -- petroleum chemicals I guess . A Those are the ones I can recall . I'm sure 7 there are others . Q Have you ever acted as an expert in a case, y Doctor, where the allegation involved a akin injury? 10 A Didn't you already ask me that question? 11 Q I don't think so . ,, A I think you did . 13 Q mgt was the answer? 14 A Well, I think the answer was that yes, I 15 have . And it was irritation or dermatitis . And you 16 asked me whether there were solvents involved, and I 17 said yes . And I think you asked me how many were caused 18 by -- or something such as that -- and I told you I 19 thought a couple . 20 Q Was this a lawsuit that we're referring to 21 right now in which you gave your opinions? A Yes . Isn't that what you're asking met 22 23 Q Yes . Where was this case pending or where 24 Datti ,lair court reporters p.c . 154 1 is it pending? A No, it's not a case . I thought your 3 question was have I ever . Q Yes . A The answer is yes . Q What was the nature of your referral in r that case? Were you acting as an expert witness? A Yes . Q And where 81S these cages occur? 10 A Well, I believe one was in Birmingham, 11 Alabama . That's about all I can remember . 12 Q Were you retained on behalf of the defendant or the plaintiff in that case? 13 A Defendant . 14 1` Q Do you recall what your opinion was in 16 those cages? 17 A No, I do not . Q Do you know the names of the -- excuse me . 18 Do you know the name of the attorney 19 who retained you? 20 A No, I don't . 21 Q Have you ever worked with Mr . Foqel before 22 on a case? 2.3 A No . ittti Rlair court reporters p.c . 158 1 Q How about Mr . Hilfman? 2 A Could you define working for -- the answer 3 is no . 4 MR . FOG$L : Working with . 5 MR . ROTH : Q Working with . 6 Have you ever been retained by the 7 law firm of Hilfman and Fogel in another case? S THE WITNESS : A No . 9 Q Have you ever been retained by either Mr . to Fogel or Mr . H3lfman? ti a Prior to this? 1z Q Yes . 13 A No . 14 Q How about subsequent to this case? 15 A No . 16 Q This is the only case that you've had with them? 17 18 A You mean this is the only case I have been working with them? 19 Q Yes . 20 21 A That's correct . Q Have you consulted with them with respect 22 to other matters? 23 A No . 21 lktti R'lair court reporters p.c. 156 7 Q When were you first contacted with respect 2 to the Kubinski case? 3 A I think it was about March, February, 4 March . 5 Q Does this letter refresh your recollection? 6 A Yes, sir . March 1990 . Q Was that your first contact with Mr . Foge11 A Yes . Q Had you talked to him on the phone before 9 receiving that letter? 10 11 A Well, pea . Q Do you know when you first talked to him? 12 A Oh, I think it was probably the day before, 13 as he says in his letter . There was a call . He asked 14 if I would look at materials . The answer was yes, I 15 would . It says, "It was pleasant speaking with you on 16 March 22nd," and the letter is dated March 23rd . 1i Q When did you relay your opinions to Mr . iH Fogel -- strike that . 19 When did you communicate your 20 opinions to Mr . Foqel? 21 A It could have been the last time I was here 22 prior to the deposition that was scheduled -- prior to 23 the scheduled deposition, my deposition . 24 atti lair court reporters p.c. 187 Q Some time in late October, would that be about right? MR . FOG$L : I think that's right . MR . ROTH : Q And that's the first time you talked to Mr . Boqel about your opinions in this case? h THE WITNESS : A Yea . 7 MR . FOGSL : Let me just add a caveat . THE WITNESS : A We have talked about . . . MR . FOGEL : Yeah . I mean, you asked about when 10 the final opinions were conveyed . That was the day 1l before the deposition, I think is the beet way to put 12 it . 13 THE WITNESS : A We previously talked about your 19 little paragraph . 15 MR . FOGBL : Yeah, for that 220 interrogatory . lEi THE WITNESS : A Yes, we did talk about that . 17 MR . ROTH : Q How many conversations did you have 18 with Mr . Foqel about this case prior to today? 19 A If I tell you, are you going to ask me to 20 remember each one? Q No . 2 don't care what he told you . 21 A I would estimate four, five . 22 23 Q Dr . Harbison, I'm going to show you a copy 24 of a letter that you just looked at . Vatti :)lair court reporters p.c. 158 Is that the letter that you received from Mr . Fogel back 1n March that we just referred to -- a copy of the letter anyway? THE WITNESS : A I believe so . i Q And does that correspond more or leas to h the came time that you first became involved in this case? A Yea, sir . Q Other than that letter, did you receive any 10 follow-up letter from Mr . Foqel at any time? A Yes, I believe I did . iz Q How many other letters did you receive from him? 1;3 14 A Well, I don't know . There's probably a 15 couple of additional letters that were letters of transmittal of a deposition or other materials . 16 17 Q In forming your opinions in this case, Dr . Harbison, are you relying at all on anything that Mr . 18 19 Fogel told you orally? 20 A I don't believe so . Q Are you relying on anything substantively 21 22 contained in his transmittal letters in forming your opinions in this case excluding the materials that were 23 transmitt ed along with them, just the letters 24 atti R'lair court reporters p.c . 159 themselves? A I don't think so . Q Is that a no, or is there some question in your mind? A Well I can't recall anything, but I don't know specifically what it might be . I don' t believe there's anything that I have relied upon in these letters specifically for the formulation of my opinion . Q What have you reviewed in this case as part 10 of your work? 11 A I have reviewed the deposition of Mr . 2 Rubinaki . I have reviewed the medical reco rds of Dr . 13 Phillips and Bluefarb . I have reviewed the deposition 14 of Mr . Rouch3s, the scientific and medical literature 17 which you have partially listed, plus the others of some 16 which I could remember and of which we will provide you 17 with a list, the ANSI standards or the American Standard 18 Institute information . 1y I believe that's it . 20 Q Have you reviewed any part of the Federal Register? 21 >> A I don't believe so . 23 Q Have you reviewed any materiel safety data ?q sheets? atti lair court reporters p.c. 160 A Oh, yes . I have letters of correspondence along with that, yea . 3 Q Do you have copies of those with you? A T thought that was given to you . 5 MR . FOGBL : Yeah . That's the original cover letter, and these are the -- come of the materials . THE WITNESS : A Yea . MR . ROTH : Q Can I just see what was provided to you? 10 A Let me make aura the latter is in here . 11 Q So we can go on, other than the materials 11 you just told us about, have you reviewed anything else before coming here today? 73 14 a Not that I can recall . 15 Q Do you know who Jack Peterson is? A Sure . l (i 17 Q Do you know him personally? A Sure . 18 Q Do you know him professionally? 19 A Sure . 20 21 4 Have you worked on cases with him? 22 A Yes . Q Do you know him to be en industrial 23 hygienist? 21 atti R'lair court reporters p.c . 161 A Yes . Q What is his reputation in the field? A Of industrial hygiene? Q Yes . A Dr . Peterson has a good reputation . g How many cases have you worked alongside of 7 him on? A When you say worked alongside of him, it ~, 9 sounds like we're standing in a trench together, which 0 is certainl y not the occasion . 11 4 How many cases have you been involved 12 concurrently with Dr . Peterson? 13 MR . POG&L : Is concurrently the word you used? 14 MR . ROTH : Concurrently . 15 THE WITNESS : A I can recall at least two . I'm 1h sure there are probably others . 17 MR . ROTH : Q Have you ever been on the opposite 18 side of a case with Dr . Peterson? 19 A I don't know the answer to that . Not that I can recall . 20 Q Do you know Dr . Hsimes has been involved in 21 z2 this case? A Sure . 23 Q And how do you know him? 24 atti lair court reporters p.c. 162 A Dr . Haimea was the director of the Center z for Occupational Health at the University of South Florida . I'm at the University of Florida . That's how I became acquainted with Dr . Haimes . 5 Q Do you know him personally as well as professionally? i A Well, when you say personally versus R professionally, you mean have you ever had lunch with him, which would make it personally, yea, I have . I 10 certainly know him that way personally . 11 Q Do you know Dr . Haimes to have a specific 12 expertise within a given field? 13 A Yes . 14 Q What field is that? 15 A Industrial hygiene and occupational 16 medicine . 17 Q And what is his reputation in your opinion? A I think Dr . Haimes has a good reputation . 18 Q You've worked with him before on cases, 19 20 correct? A i don't recall that . We are currently 21 z2 working on one here in Chicago . Other than that, I don't recall any . 23 Q How about Sidney Schindell, 8o you know who 24 patti )lair court reporters p.c. 163 he is? MR . FOGEL : What's the name? MR . ROTH : Schindell . THE WITNESS : A Yes . MR . ROTH : Q How do you know Dr . Schindell? A I know Dr . Schindell from my work with him on the continuing education program at the medics! college of Wisconsin . Z know Dr . Schindell from having worked with him on various legal matters, testimony 10 before congress . I've known Dr . Schindell for probably 1l ten years . 12 Q What is his field of expertise? 13 A 8pidemiology and occupational medicine . 14 Q What is his reputation within the field of 15 epidemiology? is A I think he has a good reputation within the 17 field of epidemiology . 18 Q Doctor, have we pretty much gone over the 19 work you've done in this case in terms of what you physically did, reviewing documents and consulting 20 authorities? Was there been additional work that you've 21 done that we haven't talked about? 22 A I don't believe so . 23 Q How many hours have you put in on this 24 atti lair court reporters p.c. 164 1 case? A I would estimate 20 . Q Doctor, I'm going to . . . MR . FOGEL : Which was it, Schindell or Peterson, 5 that invited you to the staff of the medical college of Wisconsin? MR . ROTH : It had to be Sehindell . THE WITNESS : A 8chindell is still at the y medical college of Wisconsin and is now chairman 0 emeritus at Wisconsin . 11 MR, ROTH : Q I'd like to -- doctor, I want to go 12 through what would be contained in your file even though 13 I understand it's not all here today . 14 We talked about Exhibit 3 which is a li portion of the articles and the other articles that are 16 going to be used to supplement this list and aren't on here . 17 18 A Which I told of some I can remember . Q Absolutely . 19 20 And you also told us about the 2t depositions o! Kouchis and Kubinski that is contained in 22 your file and the depositions of Bluefarb and Phillips? A That's correct . 2ci 24 Q And the only other thing contained in your atti lair court reporters p.c. 165 file is the ANSI standards -- got to remember those, ., right? 3 A Yes . Q I think we've identified them enough for y the record . Can you look at these . Do all the materials that I'm handing you appear to be what is contained in your file? A Yes, air . 10 Q I'm going to identify those for the record 11 and see if Hob will stipulate to this rather than 12 remarking them . 13 MR . FOGBL : The only thing I can tell you is Z 19 have tried to keep a stack of materials that I have 15 provided to various experts . That may or may not be a 16 complete stack . it MR . BOTH : Let's see what we could 8o here . 18 MR . FOGSL : And I don't know if that is the stack 19 from Dr . Haimee or the stack from Dr . Harbison, or a 20 combination of the two . 21 I believe that would be everything, 22 most of everything . For some reason 2 think I provided 23 Haimea a copy of the Texaco M3DS from '86 or '88 . I'm 24 not sure if it's still in there or not . gatti JU)lair court reporters p.c. 166 THE WITNESS : There is not a Texaco one in there . MR . FOG&L : There is not . So I can't tell that that is it . THE WITNESS : But I never received a Texaco one . MR . FOGEL : Right . MR . BOTH : Q You just reviewed these documents . Do you recall seeing them before? THE WITNESS : A Sure . Q Are there any documents that you're aware 0 of that aren't contained in this group of materials that 11 You received? 12 A Well, I don't know how to answer that 13 without . . . 14 4 Do you recall any? That's all I am asking . 15 A Z don't recall any, but I'm certainly not 16 representing that this is all the materials . 17 Q I don't expect you to have total recall . 18 I'm talking about strictly the product safety information . 19 p MR . FOGfiL : I think that is pretty close if not all of it . 21 22 MR . ROTH : Are these your copies, Bob? MR . FOGEL : Yeah . Not all of them are marked, 23 unfortunately . 24 gatti ,lair court reporters p.c . 167 MR . ROTH : Q Doctor, did Mr . Fogel ever ask you to bring up your file today for your deposition? THE WITNESS : A Not for today, no . MR . FOGEL : You have a letter here that lists . . . MR . ROTH : With specificity each item in here . Is that what you're saying? i MR . FOGEL : Yeah . It was the M3DS for Metal Lubricants y that was in effect at the time and some material health 10 and safety bulletin from Union 031, the labels, the 11 typical inspections . 12 There were photocopies of 13 Photographs, the medical notes of Phillips and Bluefarb . 14 For informational purposes I give him 15 a letter of and CV o! Krueqer and information from the 16 Psoriasis Foundation and a copy from . . . 17 MR . ROTH : Do you have copies of everything 18 that Mr . Foqel sent to you back at your office? 19 THE WITNESS : A I believe so . 20 Q Did Dr . Kruegar's CV . . . 21 MR . FdGBL : By the way, everything that I've 22 mentioned in there has been marked as an exhibit at one time or another . 23 za MR . ROTH : You tell me what they are and I'll ~etti lair court reporters p.c. isa refer to them . Q Anything about Dr . Rrueqer's CV that affects your opinion in this case? A No . Q Or is relevant to your opinions in this case? A I don't believe so . Q How about the photocopies of photographs of Mr . Rubine ki's hand? Anything about the photocopies of 10 the photog raphs that is relevant to your opinions in 11 this case? 12 A Not specifically, no . Q How about generally? 13 A Not generally either . 14 Q Well you'll have to bear with me here I 15 l, guess . I' ll do what I can . MR . FOGEL : Okay . I'm sure you will . 17 18 MR . ROTH : Q Doctor, I'm going to hand you some documents, and Z want you to identify them tar the 19 record . ?0 I'm going to hand you the first one 21 which has previously been marked as Gray Exhibit No . 5 22 for identification marked December 2, 1987 . 23 MR . E'OGEL : Is that the Metalite SV-6 typical 31 patti ;flair court reporters p.c . 169 inspections? That's previously been marked as Haimes z Exhibit 12 dust for reference . 3 MR . ROTH : I don't have Haimes . THE WITNESS : A The question is . . . MR . ROTH : Q You reviewed that? A Yes . Q That's one of the documents you received? K A Yes . Q How about -- I'm going to hand you a 10 document that has previously been marked Gray Exhibit 1 No . 6 for identification, December 2, 1987, and ask you 12 if that is one of the documents you reviewed in this 13 case . 14 MR . FOGEL : That has previously been marked as 15 Haimea Exhi bit 24 as well . 16 THE WITNESS : A Yes . 17 MR . ROTH : Q Did you review that before? 18 A Yea . 1y Q Are those two documents relevant to your 20 opinions in this cage? 21 A Documents I considered, yea . 22 Q I'm going to hand you what's previously 23 been marked -- a two-page exhibit previously marked as 24 Matray Exhi bit 2-A and 2-B, April 24, 19 -- I don't pa, flair court reporters p.c. 170 know -- and ask you if thia's one of the documents that you've reviewed in this case . ,3 MR . FOGSL : This'a Haimes Exhibit No . 11, and that is the Metal Lubricants' M3DS for Metalite SV-6 with the sticker on it . h THE WITNESS : A Yes . MR . ROTH : Q I'll hand you what's previously been marked as Biddle Exhibit No . 2, January 13, 1989, which appears to be a multi-gage document . Have you 10 reviewed those documents as part o! the material sent to 11 you by Mr . Foqel? 12 MR . FOGEL : This's previously been marked as Haimes Exhibit 16 . 13 14 THE WITNESS : A Yes . 1 ._ MR . FOGEL : I'm also pretty sure that -- I kind 16 of took a packet of the materials 2 sent to Krueqer and 17 told my clerks to copy and send a package to Dr . Haimes 18 and a package to Dr . Harbison . That's why I'm saying 19 all o! this is duplicative . 20 MR . ROTH : If you would atop playing games and 27 just tell me what you sent the guy, we'll get through 22 this . 23 As you once pointed out to me, what goes around comes around ; right? 24 am lair court reporters p.c. iii MR . FOGEL : Yeah . It came around the other day with Dr . S ullivan, didn't it? 3 MR . ROTH : I don't know . MR . FOGEL : Just show me something . I'll tell you what i t's been previously marked . That's the -- that's Gray Exhibit 1 . i What is the date on the bottom of it? MR . ROTH : This is my copy . I'm sorry . And that is why tha t is the problem . 10 MR . FOGEL : On the last page, give me the l effective date o! that one . 12 MR . ROTH : It's marked October 20, 1980 . 13 MR . FOGEL : Is that the one for Stoddard solvent? 14 MR . ROTH : It is one of the ones for Stoddard 15 Solvent . 16 MR . FOGEL : Is this the same one? 11 MR . ROTH : This is not the same one . 18 MR . FOGEL : Is it this one? 19 MR . ROTH : It is this one . 20 Q Let me show you what's previously marked as Haimes Exhibit No . 10, November 17, 1990, which is n 21 four-page document, and ask you if that's one of the 22 documents you revi ewed in this case . 23 THE WITNESS : A Yes . 24 atti lair court reporters p.c. 172 Q I show you what's been marked previously as Haimes No . 9, which is a lour-page document, and ask you if that's one of the documents that you previously 1 reviewed in this case and which you were previously ,5 furnished . A Yes . MR . ROTH : The AM3C0 ones now, do you have copies of theme? There's lour of them . MR . FOGEL : These are all 11MSC0 . The first two 10 are aMSCO . l MR . ROTH : I understand . Hut they're in 12 different format . 13 MR . FOGBL : Upper right, revised September '77, 14 Haimes Exhibit 18 . 15 MR . ROTH : Q I will show you what's been marked 16 previously as Haimes Exhibit No . 18 and ask you if that 17 two-page document is one that was previously forwarded 18 to you and which you reviewed in this case . 19 THE WITNESS : A Yes . 20 Q I show you what's been marked as Aaimes No . 21 8 for iden tification previously . Is that one of the documents you received and reviewed in this case? A Yea . 23 121 Q I show you what's been marked as Haimes "atti ;)war court reporters p.c. 173 Exhibit No . 6 for identification . Is that one of the -- 2 3a that a two-page document something that was .3 previously forwarded to you and which you reviewed in this case? A Yea . Q And I will show you what's previously been 7 marked as Asimea No . 7 for identification . Is that also -- that two-page document something you received and reviewed in this case? 10 A Yes . 11 Q I show you what's previously been marked as 12 Haimes Exhibit No . 13 . Is that a document you reviewed? 13 MR . FOGEL : Also Muzinic 5 . 14 THE WITNESS : A Yea . 15 MR . ROTH : Q Let me show you what's previously been marked as Haimes Exhibit No . 17 . 16 17 MR . FOGBL : The product bulletin for AMSCO mineral spirits 66/3 . 18 19 MR . ROTH : Q Did you that review in terms of 20 your review of documents in this case? THE WITNESS : A Yes . 21 22 Q Doctor, what we've just gone through, does 23 that comprise all the safety information you remember 24 getting in this case as you sit here today? ~atti lair court reporters p.c. 174 A Yes . MR . FOGEL : All the safety info? THE WITNESS : A You mean product safety information . MR . ROTH : Q All the product safety information that you remember receiving, right? A Yes, sir . Q Have you independently gone out and tried y to obtain additional product safety information to regarding this particular chemical? 11 A No, I have not . 12 4 do you know how you -- how it came about 13 that Mr . Fogel called you or contacted you in this case? 14 A No, I do not . 15 MR . FOGEL : Do you want to know? MR . ROTH : Do you want to tell me? 16 17 MR . FOGEL : Jack Peterson recommended him . 18 MR . ROTH : Q Based upon your review of the 19 materiel that you told us about, 8o you have an 20 understanding of the facts that are relevant to your 21 opinions in this case that you can tell us about, the 22 facts that give rise to this case? Do you understand what I mean? 23 A No . 21 atti lair court reporters p.c. 1?5 Q Do you have an understanding about Mr . Rubinski, the work he was doing, and the exposure that .3 he had to mineral spirits? q A Yes . Q Can you tell me what your understanding is . A My understanding is that he was repairing a machine in a period of about May 6th through about May 27, 1983, and while repairing that machine or taking it apart, cleaning it, he used mineral spirits to clean 10 various parts of that machine, and he used the mineral l spirits on a daily basis for that approximate period o! 12 time about of three weeks . 13 Q Earlier I believe you told me that it was 14 Your understanding that he was using the mineral spirits 15 eight to ten hours an day . Am I wrong? 1h MR . FOGSL : No, no . You were asking him about l what his exposure was and during the course of the eight 18 to ten hours a day and whatever his hours were he was 19 exposed to mineral spirits . Is that what you're asking now? That has been asked and answered . 20 21 MR . ROTH : Q What is your understanding of the 22 amount of time that Mr . Rubinaki had an exposure to a 23 concentration of mineral spirits during his workday? 24 MR . FOGEL : Well . . . atti lair court reporters p.c . 176 THE WITNESS : A I think you asked me that, and Z my answer was that it was a continuous exposure during the workday ; and that workday was from eight to ten hours . MR . ROTH : Q Are you aware of any other chemicals Mr . Rubinski was exposed to prior to June of 7 1983, other than mineral spirits? A No, I am not . Q Would they be relevant to your evaluation o and opinions in this case? It A They may be . I don't know of any other 12 chemical exposure . 13 4 Do you recall any chemicals that Mr . 14 Rubinski referred to in his deposition testimony, other 15 than the mineral spirits, for that three-week period? 29R . FOGEL : Do you mean to exclude the oils or 16 17 greases that was washed off the machine and into the bucket, machine parts into the bucket? 18 19 MR . ROTH : I'm just asking if he's aware of any other chemicals . 20 MR . FOGSL : Just so we're on the the same 21 ?Z wavelength . 23 MR . ROTH : I don't know if we are . I'm asking ?,A the doctor . ~atti lair court reporters p.c. 177 A fiver, or during the three-week period? MR . ROTH : Q Other than the three-week exposure to SV-6, are you aware of any other chemicals which Mr . Kubineki was exposed to? Let's start with ever . A Ever? Q Yes . A Sure . Q What chemicals was he exposed to? A He had other occupations and was exposed to 10 other chemicals, and I believe there is an indication of 1l those in his deposition . I don't recall them all . 12 Q Do you have any understanding of any other 13 possible skin irritants that Mr . Rubinaki was exposed to 14 during May of 1983, other than SV-6? 15 A I do not know of other akin irritants to 16 which he was exposed . 17 Q How about between January and May of 1983, 18 are you spare of any other akin irritants he was exposed to? 19 2o A I don't recall that period of tame . 21 Q Do you have an understanding as to what Mr . zz Kubinski' e past medical history was prior to May of 1983? 23 24 A I don't recall his past medical history . atti lair court reporters p.c. 178 1 Q Is that type of information important to z you in evaluating whether there is a causal relationship 3 between a chemical and an effect to biologic tissue? a A It depends on the chemical, it depends on 5 the effect . c Q Is it relevant to you here in this case? 7 A To the beet of my knowledge, it is not . S Q what is the understanding of the injury -g what is your understanding of the injury that Mr . Rubinski developed following his exposure to SV-6? in 11 A Contact dermatitis . Q And what's the basis of your opinion? Is 12 13 that strictly from the medical records again? A Yea, sir . 14 Q Do you have an understanding as to what 15 business the plaintiff's employer was in? 16 A Yea, I believe it was a manufacturer of t. screws . 18 is Q Are there any other facts that we haven't discussed that you feel are relevant to the opinions 20 that you've reached in this case? 21 22 A That's a kind of a question that I'm not sure I know how to answer . I certainly don't recall 23 other facts . Are there? I don't know . ?4 Dolt] lair court reporters p.c . 179 Q Let's talk about your opinions, Doctor . We talked about them briefly I think . g Can you tell me what opinions you've q reached in this case based upon your work that you've outlined for us? A My opinion is that the SV-6 was the cause of the irritation that resulted in the dermatitis in Mr . Rubinski and that the product SV-6 is unreasonably dangerous for the intended use of a cleaner for parts, 10 and inadequate safety information -- health and safety 11 information was provided with regard to that material 12 and its potential health hazards . 13 Q Do you have any other opinions in this 14 case? 15 A Those are the ones I can think of . I don't 16 know if there would be others or not . 17 MR . FOGfiL : Other things have developed today, 18 and you've asked opinion questions . 19 MR . ROTH : Q Other than what you've told me 20 today, obviously, do you have any opinions as to the 1 nature and extent of the plaintiff's injury in this case? 22 23 THE WITNESS : A Other than what I've already 24 told you? atti lair court reporters p.c. 180 I Q Other than what you've already told me . A No . Q Which stops at the point where the exposure caused dermatitis, right? 5 A That's correct . h Q Beyond that point, do you have any opinions 7 regarding any additional injuries or the nature of those injuries? A No, I do not . 10 Q Do you have any opinions regarding the plaintiff' s claimed disability in this case? 11 12 A I'm not sure I know what that means . 1,j MR . FOGSL : You haven't been asked to, and he has no such opinions, any opinions as to whether he is 14 1i disabled today, and if so, why or in what ways . 16 THE WITNESS : A 2 don't have an opinion about 17 that . MR . FOGSL : It's the process of elimination Z 18 think . 19 MR . ROTH : Q And I assume you 8o have an opinion 20 as to what warnings were necessary in this case with 21 respect to SV-6, am I right? 22 A That's correct . 23 g And would that be part and parcel of your 24 atti lair court reporters p.c. 181 opinion that it was an unreasonably dangerous product? A I don't quite understand that question . 3 Q Is the basis of your opinion that SV-6 was an unreasonably dangerous product the fact that there 5 was inadequate safety information provided, correct? A That is correct . MR . FOGSL : Safety and health information . MR . ROTH : Q You have an an opinion assume I as to what safety and health information should have been 10 Provided? 11 THE WITNESS : A Right . My previous answer was ,, safety and health, not just safety . 13 4 Do you have an opinion as to whether Metal 14 Lubricants had an obligation in 1983 to send the 15 material safety data sheet to Champion Screw, without 16 Champion Screw having requested one? 17 A Yes . I believe that they did have an 18 obligation in 1983 to send a material safety data sheet . ]9 MR . FOGEL : Could you read back the question and 20 answer, please . 21 (Record read .) 22 MR . FOGSL : Just to clarify . . . 23 MR . ROTH : You're using up my valuable time here, Bob . 24 ~atti Iair court reporters p.c. 182 MR . FOGSL : I know it . I just want to be sure that you don't miss the fact that we're talking about is health and safety information, whether it takes the form of a material safety data sheet, or product warning labels, or a combination . Am I correct? Or do you mean to refer specifically to the material safety data sheet they had? THE WITNESS : No . I would refer to all o! that . 10 But that's not the question that he asked . It MR . FOGBL : I understand . 12 MR . ROTH : We talked about that already . We'll 13 get back to that . thank you . 14 MR . FoGEL : I hate to see this answer picked in 15 isolation . 16 MR . ROTH : I understand your concern . 17 MR . FOGEL : Personal concern only . I just was 18 looking down the road . I don't care how you look at it . 19 MR . ROTH : Q Doctor, with respect to your 20 opinion that 3V-6 was the cause of the irritation that 21 resulted in dermatitis, can you tell me the steps you took in employing your methodology in reaching that 22 conclusion? 23 21< THE WITNESS : A Considered the exposure and the Eatti !lair court reporters p.c . 183 concentration, exposure to the SV-6 materiel on a daily basis for approximately three weeks, continuous exposure 3 during the day, to 100 percent mineral spirits . Q So you've established there was an exposure to a concentration sufficient enough to cause the effect? A Yea, sir . Q Is that a correct summary of what you just said? 10 A That's correct . 11 Q How did you determine that the 12 concentration was sufficient to cause the effect? 13 A Based upon reports in the literature, based 14 upon my knowledge, based upon my training, based upon my 15 experience, it would be my opinion that 100 percent 16 mineral spirit in contact with the akin for -17 continuously throughout the day for period of 18 approximately three weeks would be sufficient to cause 19 chronic irritation to result in dermatitis . 20 Q And were you satisfied there was a direct 21 temporal relationship between the dose and the effect? 22 A Yes, sir . Q Did you evaluate that? 23 24 A Yea, sir . atti lair court reporters p.c. 184 Q And what was your conclusion? I A My conclusion was that the dermatitis occurred within the period of exposure, and that there was a temporal relationship between the exposure, the irritation, and the dermatitis . Q What is your understanding of when Mr . Kubinski first noticed a problem with his hands following using SV-6 in May o! 1983? MR . POG$L : Do you want to refer to records? You In can . 1i THE WITNESS : A That he personally noticed it? 12 MR . ROTH : Q Yea, sir . 13 A I don't recall specifically . I'll have to 14 look at Phillips or Bluefarb, which I don't have . 15 MR . FOGBL : Do you want me to tender them to him? 16 MR . ROTH : I want him to look at the records . 17 THE WITNESS : A You don't want me to look at 18 them? 19 MR . ROTH : Q No, I do . Look at anything you 20 want, as long se it's something you've already told us 21 you have looked at . Go ahead . A The first notice of the effect was probably 22 23 about one and a half to two weeks after the beginning of the use . 24 ~atti Iair court reporters p.c. 185 Q Is that consistent with your understanding of when the effect should manifest itself after exposure? A That would be consistent with the effects, 5 Yes . Q If Mr . Rubinaki didn't notice any problems with his hands until three weeks had elapsed from the first time he used it, would that change your opinions y in this cas e? 10 A I don't know . I'd have to evaluate that . 11 Q How would you evaluate that difference in 12 in facts if there was that difference in facts? 1,3 A The facts being different ere that he 14 didn't noti ce the effects until three weeks? 15 Q Correct . 16 A I suspect that probably wouldn't change my opinion . lr 18 Q Is there a body of knowledge that you can consult to determine when skin irritation will occur 19 20 after exposure to a concentration of mineral spirits? 21 MR . FOGEL : Please read it back . 22 (Question read .) THE WITNESS : A Yea . 23 24 MR . ROTH : Q What would you refer to? atti R' lair court reporters p.c . 186 A I'd refer to Adams Textbook on Occupational Skin Diseases . I would refer to Zenz's Textbook of Occupational Medicine . I would refer to Allerhorn's Clinical Toxicology Textbook . 5 Those would be some I would refer to . Q Was there something in those textbooks that specifically indicates that the first effects should be noticed a week and a half to two weeks after exposure to a concentration? 10 A I think you are mischaracterizinq what I 11 said . 12 4 I'm sorry . Please correct me . 13 A Irritation would occur immediately upon 14 exposure . Your question was when did Mr . Kubinaki 15 complain of or notice those effects? lfi MR . FOGSL : Right . 17 THE WITNESS : A That was approximately one and a half to two weeks later . 19 MR . ROTH : Q And that is consistent with our 20 underataning as to when it might be noticeable to the 21 person that was developing this irritation, right? A No . He noticed the cracking and the 22 affects of the irritation which caused him to have 2.3 24 difficulty working . atti lair court reporters p.c. 187 Q What are you basing your opinion on, Doctor, that the irritation took place at the time of 3 exposure? A Based upon my knowledge of mineral spirits . Q Let's bet something straight . There's nothing in Bluefarb's records, or Phillips' records, or 7 hip deposition saying precisely when that irritation took place ; right? y A It says what it says . It says, "For the 10 past few weeks states he noticed cracked arena on his It hand ." 12 Q But in terms of when the irritation took 13 place, do you know when that actually occurred? 14 A Yeah . It would have been upon exposure . 15 Q Are you concluding that based upon the 1 es history, or is there something in particular you're 17 referring to here? 1 3 A Based upon my experience, my knowledge, 19 based on what I know mineral spirits is able to do to 20 skin, irritation would have occurred upon exposure . zl Q Let's atop for a minute here . zz Are those materials that are part of 23 your file as well? Are those excerpts you've sent over to Bob? 24 Data laircourt reporters p.c . 188 1 A You have a couple questions there . Are these excerpts that Z sent to .3 Bob, no . Is this part of my file, yes . Q All right . A Yea, these are . J Q All the materials that I just handed you are part of your file in this case, correct? A That is correct . Q Is there anything else that we missed 10 that's part of your file that we haven't shown you 11 today, or talked about at least? 12 A Okay . Talked about or shown . 13 4 we talked about, for instance, RrueQer's CV 14 or the photographs and such . Is there anything else 15 that we haven't talked about that's hart of your film? 16 A I don't think so . MR . ROTH : Why don't we mark these and have them 17 at least identified for the record . 1R 19 MR . ROTH : Q Doctor . . . 20 MR . FOGEL : IC's 3 :45, Nick . Just so it's on the ?~ record . 22 MR . BOTH : Do you want to get on the record when we reconve ned? 23 MR . FOGEL : 2 :15 . 24 atti lair court reporters p.c. 189 i MR . ROTH : Q In terms of temporal relationship, 2 Doctor, it is not important then when the patient first notice the problem ; right? That doesn't necessarily mean the irritation hasn't taken place, right? THE WITNESS : A It may or may not have . `, Q Is the time when Mr . Kubinski first noticed a problem with his hands important to you in establishing causal relationship here? MR . Ft3GEL : Can I ask you a question? 10 MR . ROTH : Sure . 11 MR . FOGEL : Are you relying on something in 12 particular as to when Kubinski noticed anything 13 happening with his hands or when he noticed something 14 that caused him to be concerned to go see the doctors? 15 Because there's no question he's 16 testified he noticed redness, he noticed dryness, and he 17 put cream on it early on in the first week or so on . Then it continued to progress to drying and cracking and 18 19 the swelling and the rest . So you are focusing like there's one 20 day that he didn't notice and there's one day that he 21 did . And there's plenty of evidence showing the 22 continuing of severity . 23 MR . ROTH : Q Do you remember the question? 24 ~atti lair court reporters p.c. 190 I THE WITNESS : A No . 2 MR . ROTH : Do you want to read it back . 3 (Question read .) THE WITNESS : A Yea . MR . ROTH : Q And why would it be important to 6 you? 7 A To establish the temporal eliqility for the 8 mineral spirit or the 3V-6 to have caused the effect . 9 Q How long after exposure to SV-6 would you 10 expect an individual to notice a change in their akin? 11 A It depends on the exposure . Exposure for 12 Mr . Kubinski I would expect to be at the time of or shortly thereafter . 13 14 Q And one and s half to two weeks, assuming 15 that ware the case, that would be sufficient to bring it 16 within that temporal relationship ; correct? 1 . MR . FOGBL : I am objecting . You're assuming the 18 facts not to be as they are . You're giving a hypothetical not related to this case . 19 MR . ROTH : I just said that, assuming that that 20 were the case . 2f 22 THE WITNESS : A Assuming that the cracked hands occurred one and a half to two weeks during the 23 exposure, after beginning the exposure? 24 atti lair court reporters p.c. 191 MR . ROTH : Q Yes . z A Would that be eligible for the effect to have been caused by SV-6? Q Yea . 5 A Yes . Q How about if the cracked skin occurred two r months after the initial exposure, would that be consistent? A It depends on the exposure . Is exposure 10 exactly the same every single day? 11 4 Assuming that it is . 12 A I would think that that would be a long 13 time to have or to be exposed before an effect would 14 occur . Hut it's -- I don't know . I'd have to look an l it . 16 Q That could possibly affect your opinions in 17 terms of whe ther there's a temporal relationship? A If ha had it two months later? 1y Q Yes . 20 A Well, it would be a factor I would ?~ consider . Q Would it change your opinion in terms of chemical causations? 23 A I don't know . Because I'8 have to look at 24 atti ~Iair court reporters p.c. 192 everything that was part of Mr . Rubinski, whet he did, what ha complained of, what he had, when he had it . I I Q Doctor, I'm just going to go through this material briefly . I am going to hand you the exhibits 5 and you cou ld just tell me what they are, if you referred to them, that sort of thing . I show you what's been marked as Harbison Exhibit No . 5 . If you could identify that for us first of ell . 10 A Do you want me to read what it is? 11 4 sure . 1z A Patty's Industrial Hygiene and Toxicology, 13 volume 2-B, Toxicology . 14 Q It's excerpts from volume 2-H, correct? A It is pages from volume 2-B . ti is Q It is not the entire volume? 17 A Right, it is pages . 18 Q Is that something that you referred to in this case? 19 A Yes . It's something that I considered . 20 Q Did you forward those excerpts from volume 21 2-B to Mr . Foqel as part of your file? 22 A No . 23 21 Q Let me show you Harbieon Exhibit No . 6 and atti lair court reporters p.c . 193 1 ask you to identify them . A I showed him these last time and that's how 3 he got them . Q Not through the U .S . mail necessarily? A Well, he got them the last time I was here is how he go t them . Q Okay . A I'm sorry . You want me to read this again . Occupational Skin Disease, Robert M . Adams . 10 Q And that's part of your file, correct, that 11 you reviewed at least in terms of working on this case ; 12 right? 13 A Yes, sir . 14 4 And I will hand you what's been marked as 1i Harbiaon Exhibit No . 7 . Is that part of your file in 16 this case? And can you identify it for us . 17 A Yep, Dangerous Properties of Industrial 18 Materials . 19 Q Is there a specific reference within 20 Exhibit No . 7 that you referred to that you can show us right now? 21 22 a There is s reference to Stoddard solvent . `; Q And what about the reference to Stoddard ?q solvent 9.s relevant to your opinions in this case? atti lair court reporters p.c. 194 A It has a TLV . That's about all I can see . Q Anything that's contained in Exhibit No . 7 establish a precedent for the proposition that mineral spirits can cause dermatitis? _ A Not specifically, no . Q Let me show you what's been marked as r Exhibit No . 8, Harbleon Exhibit No . 8 -- do you went to continue reading that or . . . A Yeah, I didn't quite finish . There's also 10 a reference to mineral spirits that is on another page . 11 Q Let me show you what's been marked Harbison 12 Exhibit No . 8 . Can you identify that for the record 13 first of all . 14 A Yes . 15 Q What is it? 16 A It's the Merck Index . 17 Q And is there something within Exhibit No . 8 78 that you feel is relevant to your opinions in this case? 19 A There is simply a reference to mineral 20 spirits . That's all I can find . 21 Q Is there anything in there that creates a zz precedent for the propositions that mineral spirits can cause dermatitis? 23 21 A Not that I'm aware of . atti lair court reporters p.c. 195 Q Do you know the date that that was published? 3 A 1983 . Q Speaking about Exhibit No . 5 and 6, going back, do you know what the date of publication is for the particul ar volume of Patty's that we're talking about on Exhibit No . 5? A I believe it's 1981 . Q and in terms of Exhibit No . 6, Occupational to Skin Disease by Adams, do you know what the date of 11 publication is for that particular volume? 12 A 1983 . 13 Q Was there a prior edition to Adams? 14 A z don't think so . I think this is the 15 first edition . 16 Q Showing you what's been marked as Hsrbison 17 Exhibit No . 9 and ask you to identify that for the 18 record . 19 A It is a page from the Hazardous Chemicals 20 Data Book on mineral spirits . 21 Q And what is relevant in -- on that page to your opinions in this case? 22 A Generally describes mineral spirits, 28 24 physical, chemical properties, protective equipment . atti lair court reporters p.c. 196 I Q I think it also says it is irritating to the akin up here, too, somewhere . .3 A Yes . Q Would that be relevant to your opinions? 5 A Yes . h Q What's the date of publication for that r document, sir? A I don't know the answer to that . Q Let me refer you to page 2 at the bottom of 10 the page . Does that help you out? 11 A June '85 . 12 Q Is there anything in Exhibit Na . 9 that 13 creates a precedent for the proposition that mineral 14 spirits causes dermatitis? 15 A Well, again, you keep asking that question . 16 There's no one thing that establishes a precedent . This is certainly part of the literature that would support 17 iH the irrit ant effects of mineral spirits . It certainly 19 doesn't establish the precedence, but it's another piece of information . 20 .21 Q It makes reference to the irritant? A That's correct . 22 Q . Let me show you what's been marked as 23 24 Harbison Exhibit No . 10, air . In fact, let me look at T"Satti !)lair court reporters p.c . 197 it for a minute . I ask you to identify that for the record . A This is Industrial Hygiene and Toxicology, volume 2 . Q Do you know the date of publication for h that particular volume? A I believe it is also 19 -- no . The other one 3s the third revised . I don't know what the year of this edition is . 10 Q What in that exhibit is relevant to your 11 opinions in this case? 12 A There's a section in here on mineral 13 spirits . It talks about irritation . 14 MR . FOGSL : again, your question is limited to 15 precedent of any kind with regard to skin irritation or 16 dermatitis? 17 MR . ROTH : That's not the question . I just asked 18 him what was contained in there that was relevant to his 19 opinions . That's all . 20 THE WITNESS : A The information on mineral 21 spirits that refers to its effects, such as irritating zz effects . MR . ROTH : Q Does it refer to its irritating 23 24 effect on the skin of a human, in that article? jDatti -?,lair court reporters p.c. 198 A I don't see a specific reference to irritation of the skin . Q Would that be part of the precedent, then, sir for the proposition that mineral spirits can cause dermatitis? h A No . I will answer it the same way . There's no single article that is a precedence . Q Would that be part of the body of the literature that you believe creates that precedent 10 though? 11 A It's part of the body of literature that I 12 considered . 1,; Q I8 that part of the body of the literature 14 creates the proposition that mineral spirits causes 15 dermatitis? 16 MR . FOGgL : I understand . But in the context of the opinion s you asked, it was whether or not SV-6 -- 3n 17 18 the context of this case is unreasonably dangerous in the absence of health and safety information, and all of 19 20 this includes health and safety information and indicates that this is a hazardous chemical that needs 21 22 health and safety information in order to be reasonably safe for foreseeable intended uses . 23 `4 These articles and literature relate atti lair court reporters p.c . 199 to solvents and explain that solvents are irritants to z the skin and again fit within the body of literature .; indicating that is one of the dangers of the solvent that needs to be passed along to the consumers end users . You keep narrowing it down to causing dermatitis and I thank ignoring the broad -- but if you wish to do that . MR . ROTH : Q Doctor, as part of your analysis in 10 this sass, did you determine there was a medical 11 precedent for the proposition that mineral spirits -12 exposure to a concentration of mineral spirits can cause 13 dermatitis? 14 THE WITNESS : A I think you've already asked t_ that several times, and my answer is that mineral 1e spirits can result in irritation . Chronic irritation 17 can lead to dermatitis . This is part of the body of 18 information that would support the proposition that 19 mineral spirits is able to produce an irritant effect on 20 skin . 21 Q Let me show you what's been marked as 22 Harbison Exhibit No . il and ask you to identify that for the record . 23 24 A Yes, Medical Toxicology, Diagnosis and 12atti A3)lair court reporters p.c. 200 Treatment of Human Poisoning . z Q What in there is relevant to your opinions in this case? MR . FOGBL : This is the chapter on petroleum 5 distillate, right? `, THE WITNESS : A There is a chapter on petroleum distillates, hydrocarbon products, mineral spirits, synonym, StodBard solvent, main use, dry cleaner . That's the information that it has . The relevance would 10 be that Stoddard solvent and mineral spirits are l synonomoue with respect to this reference . 12 MR . ROTH : Q Does it refer to an irritant effect 13 of either Stoddard solvents or mineral spirits? 14 A I don't know . I don't have the whole lv thing . So I don't know . I don't have the whole lv chapter . 17 Q That's because I didn't hand it to you . 18 Let me show you the last one, Harbison Exhibit No . 12, Doctor, and ask you to identify that far the record, 9 sir . 20 21 A It is some pages from Occupational Medicine, Karl Zenz, second edition . 22 Q You reviewed and referred to that text as 23 za part of your work in this case? stn lair court reporters p.c. aoi A I looked at it, yes . Q Is there something in there that you feel is relevant to your opinions? q A Yes . Q What is that, sir? A It refers to dermatitis . It refers to aplastic anemia . It refers to mineral spirits . Thos are some things . Q Does it state in there that mineral spirits 10 can cause dermatitis? 11 a Yes . 12 Q And that is with respect to what particular 13 compound? Does it specify? 14 A It refers to Stoddard solvent reported to _ produce vesicular dermatitis of the army and hands of 16 workers after two masks of exposure . 17 Q What page are you referring to, air? 18 A Page 756 . It refers to Stoddard solvent 19 being the cause of dermatitis in several industrial z0 workers . That's the Larson reference . 21 Q Okay . Thanks . 22 MR . FOGBL : It says on the next page "Since the 23 composition of mineral experts and Stoddard solvents is 24 similar, it is recommended that the exposure to mineral atti lair court reporters p.c. 202 spirits be avoided ." MR . ROTH : Thanks . MR . FOGSL : What's the date of that book, Brad? MR . ROTH : Which one? MR . FOGEL : The last one, Occupational Medicine . MR . ROTH : You must know or you wouldn't ask . MR . FOGEL : I have no idea . MR . ROTH : Q Do you know the date of publication for this particular volume of Occupational Medicine by 10 Dr . 2enz? 11 THE WITNESS : A I'm sorry . I don't know . 12 Q Doctor, as part of your evaluation did you 13 also look into the question of whether the effect in 14 this case was biologically plausible? 1 ; A Yes . 16 4 And what did you determine? 17 A That it was . 18 Q And what 8o you base that on -- again, on the medical literature so we don't beat a dead horse 19 20 here . A Based upon my experience, knowledge, 21 ?z education in scientific and medical literature that mineral spirits is a solvent that can defat and cause 23 14 injury to cells resulting in irritation, inflammation, acci lair court reporters p.c. aos and dermatitis . Q What occurs alter the source o! the irritation is removed? A Well, it depends on the extent of the inflammatory process . If the irritation is removed, the reddening would probably disappear ; and if the inflammation is not severe, the inflammation would disappear . Q Doctor, do you know whether the SV-6 used 10 by Mr . Kubinski was diluted with anything or mixed with 11 anything prior to the time he went and got it and 12 brought it over to where he was working? 13 a I do pat have knowledge that it was 14 diluted . 15 Q If it was diluted with mineral oil -- excuse me -- if it was diluted with machine oil, would 17 that affect your opinions in this case? 18 A It depends on the dilution . 19 0 How about one cup for five to ten gallons of SV-6? 20 21 A That would not change my opinion . 2a Q Does machine oil have an irritant effect on human skin? 23 24 A It can . ~atti lair court reporters p.c . 204 Q Is it a defattener? A I don't believe it's a defadding agent . It can certainly defat as well, but generally it probably would not be s defatteniny agent . Q Can exposure to machine oil cause h dermatitis? A It could . Q Doctor, did you consider any alternate causes in this case for Mr . Kubinski's dermatitis? In A Yes . Q What causes did you consider? 12 A I looked at his personal habits . I looked 13 Qt other materials that he was exposed to such as the 14 lubricating oil or the oil that he added or may have lJ added . I could find no alternate cause or likely 16 alternate cause of his dermatitis . 1_ Q Would any irritant have to be considered as 18 an alternate cause -- any akin irritant, pardon me? A Yes . 19 20 Q Doctor, what did you determine with respect 21 to Mr . Kubinaki's personal habits? 2? A That there were no differences in his 23 personal habits that would account for the irritation during this three-week period of time . atti ~Isir court reporters p.c . 205 Q Doctor, do you have an opinion as to z whether Mr . Rubineki had been wearing impermeable gloves whether he would have contracted dermatitis in this case? A If he had been wearing impermeable gloves? Q Yes . A For the entire period 0! time? Q Yes . A My opinion would be that he could not 10 likely have developed dermatitis . 11 Q Doctor, when a worker is using impermeable 12 gloves does the body have a tendency to sweat? 13 A Yes . 14 ~ Is perspiration a potential irritant on the 15 Skin? 16 A It could be . 17 Q Is it more so -- is it more an irritant to 18 the skin where it is confined by n rubber glove or nn impermeable glove? 19 z0 A It depends on the temperature and the confinement . It's certainly more irritating than in the 21 absence of confinement . 22 23 Q Assuming Mr . Rubineki had been wearing 24 impermeable gloves in this case, is it possible that his atti lair court reporters p.c. 208 perspiration could have been an irritant to the skin which would have resulted in dermatitis? MR . FOGSL : I object . It culls for speculation, and that's not in the facts in this particular case . THE WITNESS : A I can't answer a question of h possibility . I suppose anything 1s possible . 7 Is it likely, I don't think it's very likely . Is it possible, I suppose it's possible . MR . ROTH : Q Doctor, is one of the safety 10 measures you would recommend wearing impermeable gloves t1 in handling SV-6Z 12 A It depends on what one is doing with SV-6 . 13 If one is using it to immerse parts in or to clean or to 4 use a rag or be in contact with the SV-6 for prolonged 15 periods of time, yea, it would be my recommendation to 16 use impermeable gloves . 17 Q In terms of the activity of Mr . Kubinski, 18 would it have been your recommendation that he should 19 have worn impermeable gloves when he was handling the SV-6? 20 21 A With regard to this three-seek period, yes . 22 Q Did you conclude, then, sir, in terms of alternate causes, that his personal habits did not -23 q was not a cause of the irritation that led to the atti lair court reporters p.c. 207 dermatitis? z A I could not find an alternate cause that would have resulted in the dermatitis . Q You referenced a lubricating oil . Zs that -- are you talking about the same thing I was talking abou t when I was talking about diluting the 3V-6 "r with machine oil? A Yes, sir . Q Did Mr . Kubineki come into contact with 10 lubricating oil in just handling the pieces of the 11 machine? 12 A Yea . 13 4 Did you consider that as a possible 14 alternate cause of the irritation that led to the l,_ dermatitis i n this case? 16 A Yes, I did . 17 and what did you conclude 18 A I concluded that that would not likely be the cause of the dermatitis . 19 20 Q And what is the basis for that conclusion? 21 A because the exposure to the mineral spirits zz was greater in that the mineral spirits would remove the 23 oil, and the contact with the oil, the lubricating oil, 24 would have been tar less than the contact with the 12eni ,,lair court reporters p.c. aos mineral spirits . Q Is it a matter of comparison in that respect whether the exposure was greatest? MR . FOGEL : Versus prior experiences with the 5 same stuff ? h MR . ROTH : I'm sorry . Can you read back Dr . r Harbison's last answer . Maybe I misunderstood . (Retard read .) MR . ROTH : Q I was wrong . I misunderstood you . 10 Q Are you aware of any cases where dermatitis 11 can occur without any chemical exposure or contact? 12 TAE WITNESS : A Sure . 13 Q Are there cases where dermatitis occurs 14 where the cause is not determined? 15 A Sure . 16 Q And can dermatitis occur as a result of i trauma? A Sure . IN 19 Q Would you consider trauma a possible 20 alternate cause in this case? A Did I consider it? 2I 22 Q Yes, Sir . A Yes, I did . 23 2} Q Were there facts in the materials that were ittti Flair court reporters p.c. 209 1 presented to you that indicated there was a trauma to Mr . Rubinaki's body? g A I could find no information that would q suggest to me that there was a trauma that could have resulted in the dermatitis . Q If -- assuming Mr . Rubinski had injured one of his fingers on a machine, would that have been an alternate cause you would have considered? A When? 10 Q Say between two months of the date of the occurrence in terms of when he first noticed the problem 12 with his hands . 13 A Mould the injury of two fingers on one hand 14 two months prior to this event have been the likely 15 cause of the dermatitis? 16 Q No . Would you have considered it as a 17 possible alternate cause? 18 A Yes . 19 Q And in your opinion would it -- do you have 20 an opinion as to whether it could have been an alternate 21 cause in this case? zz A I do not believe that would have been an 2:3 alternate cause for his dermatitis . 1 What is the basis of that opinion? patti AD)lair court reporters p.c. 210 A Based upon the time and the injury that -- ,, based upon that injury two moat prior to that time, it's not likely that that's the cause of the dermatitis . Q Is that due in part to the temporal S relationship between the trauma and the onset of the dermatitis? A It's due to the temporal relationship . It's due to the biological plausibility . It is due to the exposure of mineral spirits over that period of time 10 and the effects of mineral spirits versus the effect of it trauma . All of those are considerations that I made . 12 g Did you consider the possibility that Mr . 13 Rubinaki'e dermatitis could have occurred without any 14 discernable cause as a possible alternate causation in 15 this case? lfi Do you know what I mean by that, or am I mixing things up here? 17 MR . FOGBL : You mean as a coincidence? 18 MR . ROTH : I don't know if 2'8 call it a 19 coincidence . 20 27 THE WITNESS : A I think that's what you are 22 saying . Coincidentally, could the dermatitis have resulted even without exposure to the mineral spirits? 23 MR . ROTH : Q Yea . 24 atti lair court reporters p,c . 211 A I think it's not likely . I Q Is it a possible cause? 3 A Well, possibilities are anything . The probability of that is not very likely . So it would be my opinion that it's not likely that there was no cause for the dermatitis . It's more likely than not that the the cause was the SV-6 . Q As part of your analysis, did you rule out 10 the possibility that this dermatitis occurred due to 11 reasons which were unknown to the people who treated him 1z coincidentally? 13 A I thought that's the question you just 14 asked me . 15 Q Did you rule out the possibility? 16 A Well, yea . I said that it is my opinion li that it's more likely then not, looking at three weeks 18 of exposure to mineral spirits or the SV-6, looking at 19 the exposure history of Mr . Rubinaki, that it's more 20 likely than not that it's the SV-6 and not some coincidental occurrence of dermatitis . 21 22 Q When you say more likely than not, are you paying that the likelihood of this being caused by 3V-6 23 is greater than 50 percent? 24 atti lair court reporters p.c. 212 A Yes . ,, Q Would you be able to quantify it any further in terms of what percentage you would attribute to SV-6 as to a possible cause of Mr . Kubinaki'e 15 dermatitis? A It would be my opinion that it would be greater than 95 percent that it was caused by the SV-6 . $2 Doctor, can handling machine parts in a repetitive manner cause skin irritation? 10 A Sure . tt 4 Can that lead to dermatitis? 12 A Sure . 13 Q Are you aware that Mr . Kubineki was 14 handling machine parts while he was breaking down and cleaning th at machine? 15 16 A Sure . 17 Q Did you consider the handling of the parts, 18 Doctor, in his hands as a possible alternate cause of the skin irritation that led to his dermatitis? 19 A Yes, I did . 20 21 Q What did you determine? 22 A I determined that it's not likely the cause of his dermatitis . Again, based upon the exposure, 23 24 based upon the known effects of the mineral spirits, atti lair court reporters p.c . 213 based upon the occurrence of the dermatitis, the cracked) z hands, the cracked akin, that would not likely be caused from trauma or repetitive handling of machine parts . Q what is it about trauma or repetitive handling that makes it not likely that it could cause the dermatitis that Mr . Kubinski had? A The cracking of the back of the hands is not likely to be due to repetitive handling of a piece of machinery or part . 10 If the dermatitis or irritation l occurred between fingers or only in the palm or some ,, place where there would be pressure or trauma associated 13 with the handling of the parts, that might be a 14 consideration . 15 To the best of my understanding, 16 that's not what happened . 17 Q I! the first signs of dermatitis occurred 18 on the fingers and palms, would that change your 19 opinions in this case? 20 A I don't know . I'd have to review where it 21 occurred . 22 Q Would that be more consistent with 23 dermatitis caused by trauma or repetitive handling of 24 the machine parts? Dam .AD)lair court reporters p.c. aia A It depends on how the machine parts are being handled, and it depends on what machine parts are .3 being handled . Q Would that be significant information to you in terms of your opinions in this case? MR . FOGEL : What would be significant information? MR . ROTH : Q If the first manifestation of the problems with Mr . Kubinski's hands were in the fingers . o MR . FOGBL : And the palms -- the fingers or the 11 backs of the finger? You're being intentionally 12 ambiguous . 13 MR . ROTH : I'm not that clever . 14 MR . FOGEL : You are . You're saying on the 15 fingers, and the evidence -- don't try and cut me off . 16 Because you know what you're trying to do . 17 You are talking about the palmar 18 surface of the fingers and the palms . 19 MR . ROTH : I'm talking about the fingers and the 20 palm of the hand . I cannot limit it to a place on the 21 fingers because I don't know . T don't have the records in front of me . 22 23 I know it was around the cuticles, 24 but it might have been on the palmar aspect as wall . atti lair court reporters p.c. 215 Let me repeat the question -- if you want to object, go ahead . I don't care . Go ahead . Read the question back . (Question read .) MR . BOTH : Q If the initial location of redness and swelling was in the fingers and the palmar -- and on the palm of the hands, would that be significant information to you in forming your opinions regarding causation in this case? 10 MR . FOGEL : I'm going to object to the question . 11 It's speculative . It is an incomplete hypothetical . 12 It's based upon inaccurate facts . If it is intended to 13 be based on any facts in this case, it is ambiguous . 14 You can answer, Doctor, if you have 15 an answer . 16 THE WITNESS : A I don't know how to answer that 17 without knowing precisely where it is . The fingers, as 18 you already discussed, have two sides -- or actually 19 four sides . 20 so if it's on the back of the 1 fingers, not where one would manipulate late the parts, 22 then it's not likely due to the parts . If the 23 irritation or the trauma is in the palm, then, ours, it might very well be due to that . L4 atti lair court reporters p.c . 216 MR . ROTH : Q And that's something you want to ~ know, something you'd want to consider in determining the cause in this case ; right? A I have considered that . Q Can pressure on the palmar surface of the fingers cause irritation to the opposite side? "r A I don't know that . Q Did you consider the possibility of soap being an alternate cause in this case? A Yes . And what facts were you relying on when you 1z were considering that possible alternate cause? A Mr . Rubinaki'e relating that he had not 14 changed soaps or he had not done anything differently 15 than he was doing before . 16 Q Is it your understanding that Mr . Rubinski 17 was washing his hands at work four to five times a day 18 while he was using SV-6? 19 A i recall him washing his hands . I don't 20 recall the four to five times a day . z Q Do you recall the kind of soap he was using z2 at work? 28 A No, I do not . 24 Q Do you know if it was granular or bar soap? gacn ~Jlair court reporters p.c. air 1 A No, Z 8o not . Q Does that make a difference to you? A No . q Q Is soap -- can soap cause irritation to the 15 hands that can lead to dermatitis? A I think you've already asked ma that several times, and my answer has bean yes at all times . It certainly can . y Q Is there a difference in the effect to the 10 skin as to granular soap as opposed to bar soap? 11 A I don't know the difference between 1,, granular soap and bar soap . 13 4 Then how did you rule out soap as a 14 possible cause in this case? 15 A That Mr . Rubinaki was not doing anything 16 different than he had previously done in the use of the 17 soap and material that he used for his own personal 18 hygiene . 19 MR . FOGEL : There seems to be this assumption 20 that his washing four or five times times or three or 21 four times or however many times he washed during these z :~ three weeks is somehow different than how he washed in 3 the pass . I'm not sure where that assumption 2 .1 originates . atti . lair court reporters p.c . ais MR . BOTH : Q Doctor, if an individual contracted z dermatitis, would there be s difference in the type of dermatitis in how it would appear if it were due to mineral spirits as opposed to it it were due to soap? 5 THE WITNESS : A You already asked me that, and I h said no . Unless there 3s some test specifically for a r chemical that could have bean the cause, I don't know of away of differentially diagnosing a dermatitis caused by y soap versus one caused by mineral spirits . 10 Q Assuming Mr . Kubinek3 had changed his l personal habits and way washing his hands more often 1z while he was using 3V-6 and assuming he was washing his 1 .3 hands with hot soap and granular soap four to five times 14 a day -15 MR . FOGgL : Hot water . 16 MR . ROTH : Q -- washing it with granular soap 17 and hot water, would that change your opinions in this 18 ease as to whether that could be an alternate possible t9 cause of his dermatitis? 20 MR . FOGLRL : Object . It's an incomplete 21 hypothetical . Assumes facts not in evidence . 22 MR . ROTH : Good objection . MR . FOGEL : Same objection I give regularly for 23 you people . 21 ~atti lair court reporters p.c. 219 MR . ROTH : Not for me, anyway . Q Go ahead, Doctor . 3 THE WITNESS : A If he washes his hands every day with granular soap in hot water, would that change my opinion? Q Yes . A I would have to look at how tunny times he washed, what he did . I don't know how it would change y my opinion . 10 Q Is granular soap intended to be more of an 11 abrasive than bar soap? 12 A Yes . 13 Q And can it cause, therefore, more 14 irritation to the skin than regular soap? 15 A It depends on granular soap . Generally 16 not . 17 MR . FOGEL : Have you ever washed with granular 18 soap? MR . ROTH : Off the record . 20 (Discussion held off the record .) 21 MR . ROTH : Q Doctor, just to clear something up 22 here, you have no opinions at all about Mr . Rubineki'a 23 psoriasis in this case and its causes or possible 24 causes ; correct? atti R-lair court reporters p.c. 220 THE WITNESS : A You've already asked me that twice now . Q I know . A Far the third time, it's exactly the same . It's no . Q Doctor, I want to talk to you about warnings . You've reviewed, did you not, the M3DS that was prepared by Metal Lubricants in this case ; correct? y A That's correct . 10 And did you review the particulars about what was contained in there and what wasn't contained in 12 there? Did you review the contents of the M3DS? 13 A Yea, I did . 14 Q In your opinion, was that MSD -- material 15 safety data sheet sufficient in terms of warnings for if this product? 17 A Can I see it? 18 MR . FOGEL : This is Matray Exhibit 2-A and B . 19 MR . ROTH : Q I want to rephrase the question . 20 Does that exhibit constitute an 21 adequate warning with respect to this product? 22 THE WITNESS : A I think that it's an adequate 23 warning . However, I believe that it could probably be 24 stated better, for example, the protective gloves, it atti lair court reporters p.c. 221 i simply says yea . It doesn't say anything about impermeable gloves . That would be my response . 3 Q Doctor, are you aware that Metal Lubricants composed their material safety data sheet, the one you're look ing at, by taking information from an MSDS h that they received from a supplier? A Yes . Q You saw that in Mr . Rouchis' deposition? A Yep . 10 Q Is that an acceptable practice for a t1 distributor of mineral spirits such as Metal Lubricants 12 to rely on the manufacturer that sends it to them? t .; A Yes, it would be the practice or certainly 14 acceptable to rely upon information that has been sent 15 by the manufacturer . 16 Q Doctor, is there any additional health or 17 safety info rmation that you think should have been 18 relayed to Champion Medalist and in addition to that contained on the sheet that you're looking at or in 19 20 addition to the use o! impermeable gloves? A I'm not sure I quite understand that . 21 z2 Q Is there any additional . . . A Why don't you just break it apart into 23 individual parts . 24 patti ~Jlair court reporters p.c. 222 1 Q Okay . 2 Other than the information contained 3 on the material safety data sheet, is there any 4 additional health information that should have been 6 relayed to Champion? 6 A Yes . I believe there should hive been a label . 8 Q A label on the product? 9 A That is correct . 10 Q And what in your opinion should the label It have included? 12 A Warnings . 13 Q And what warnings specifically should have been included on the label? 14 15 A Warnings about the irritant effects, is warnings about the use of gloves, impermeable gloves, and other hazards . 17 tS Q Where should the label have been placed? A On the drum . 19 20 Q And would that in your opinion sufficiently communicate the health and safety information to the 21 22 ultimate user of the product? MR . FOGEL : The label alone? 23 za THE WITNESS : A The label alone? Ratti 'lair court reporters p.c. 223 1 MR . ROTH : Q Yes . A Not necessarily . Q What else would be required? A MSDS Q Would that, in conjunction with the label, be sufficie nt to adequately apprise the ultimate user of the product of the safety and health information pertaining to the product? MR . FOGBL : It's not a trick question, is it, 10 Brad? 11 MR . ROTH : I don't know . 12 THE WITNESS : A There may be other information 13 that could be provided that is in the form of some sort 14 of verbal communication or alerting them of potential 15 hazards ass ociated with the use of the product, but I 16 would think the label and the material safety data sheet 17 would probably be adequate . 18 MR . ROTH : Q Doctor, had the material safety 19 data sheet that you're looking at been sent to the 20 plaintiff's employer in this case, would that have 21 rendered the 3V-6 reasonably safe? 22 MR . FOGEL : Could you read the question back, 23 Please . 24 (Question read .) atti lair court reporters p.c. 224 MR . ROTH : Q For it's intended use . Add that to ,, the question . MR . FOGEL : And you're intentionally excluding labeling warnings, just the sheet? 5 MR . ROTH : Yes . MR . FOGSL : You have to give a verbal response for the record . MR . ROTH : I don't have to do that . Z want ham y to answer my question . 10 So read it back again . 11 (Question read .) 12 THE WITNESS : A I believe that passing of the 13 MSDS along with the label would have rendered the 14 product safe for its intended use . 15 MR . ROTH : Q Doctor, we talked about the gloves . 16 I think I referred to them as impermeable gloves . Do 17 you have a specific type of glove, material that should 18 have been used to handle this type of product . SV-6? 19 A Do I have a recommendation !or a specific 20 glove? 21 Q Yes, sir . 2z A No, I do not . 23 Q How about specific material that the glove would be made of? 21 atti ~Iair court reporters p.c . 225 A I don't have a specific recommendation . ., Q Are you an expert on composition of safety gloves? A No, I'm not . ,5 Q Other than gloves, should anything else h have been used in terms of protective clothing or 7 equipment by Mr . Kubineki when he was using this product? MR . FOGBL : That's relevant to this -- hip 10 injuries or just generally? l MR . ROTH : Generally . 12 MR . FOGEL : Oh . 13 THE WITNESS : A Safety glasses . 14 MR . ROTH : Q Anything else? 15 A Some provision for excessive inhalation for 16 some sort of respiratory protection that is not 17 necessaril y worn but certainly available if need be . 18 Q How about a safety aprin? 19 A Yea . 20 Q Do you think that was necessary, a 21 necessary safety -- part of the safety equipment? 2? A I don't know that an aprin is necessary, because I don't know that he specifically would have 23 24 gotten it on to hip close, but certainly the gloves . atti lair court reporters p.c. 226 Whether the safety aprin was necessary or not, it would ,, certainly be desirable . Q Doctor, with respect to your opinions regarding the necessity of warnings attendant to the use 5 o! 3V-6, would those same opinions apply to the sale of mineral spirits in hardware stores? a No . Q Why is that? A Because the use would not be the same . 10 Q All right . 11 Is it a foreseeable use that a parson 12 buying mineral spirits in a hardware store might use the 13 mineral spirits to wash their hands? 14 A That's a foreseeable use, yes . 15 4 Why should the warning not be necessary in that context? 16 17 A Because the foreseeable use would not be 18 over prolonged periods of time . It would not be over an 19 entire working day . 20 So 3n opinion the exposure would not 21 be sufficient to be the cause of some chronic irritation or inflammation . 22 23 Q Doctor, did you review the conduct of the 24 plaintiff's employer in this case? atti Plair court reporters p.c . 227 1 A No . MR . FOGSL : Would you mark that spot of that last question and answer so later I can actually read it back . MR . ROTH : You can do it now if you want . MR . FOGEL : No . You're almost done, and I don't want to interrupt . MR . FOGEL : He didn't review the conduct of the employer . 10 MR . ROTH : Q You did not? 11 THE WITNESS : A No . 12 4 Do you have any opinions regarding the 13 industrial hygiene employed at Champion Medalist in 14 1983? 15 A No, I do not . 16 Q Doctor, was it a well known effect of 17 mineral spirits in 1983 that it could dry out the akin? 18 A Yes . 19 Q Is that something that you would expect any 20 company that used mineral spirits or Stoddard solvents to be aware of? 21 22 A I don't know . The problem with your z,3 question is any company . I don't know what any company 24 is . It was certainly well known . atti lair court reporters p.c . 228 Q Champion Medalist . Was that information that you would have expected them to be aware of given the information that you've been provided? MR . JANSEN : Let me make an objection . I don't know that he's been provided with any information as to Medalist? THE WITNESS : A I don't think I have any information about that . 2 don't know . Guys, it's now G :35 . MR . ROTH : Q I'm almost done . Doctor, do you have an opinion as to 12 whether Champion Medalist should have requested a 13 material safety data sheet or other product information 14 when it ordered 3V-6 in 1983? IJ A I don't have any information about that . 16 Q Would that have been a safe work practice 17 to order safety information on products that you were 18 going to let your employees use? 19 A Would it have been a safe work practice? 20 Q Yes . 21 A Well, it certainly would have been a safe 22 work practice, yea . z,; Q Doctor, assuming that Champion Medalist was 2+ aware of the warnings incorporated in the material patty ,lair court reporters p.c. 229 safety data sheet that you reviewed composed by Metal Lubricants, in your opinion, what action should Champion Medalist have taken? THE WITNESS : You're going to have to read that to me . (Question read .) THE WITNESS : A It should have informed Mr . Rubineki of the potential hazards and provided him with the necessary equipment . 10 MR . ROTH : Q If Champion Medalist had received 11 information such as a material safety data sheet that 12 indicated that gloves should be warn, would it be an 13 improper work practice not to require gloves to be worn 14 when the product was being used? 15 R Depending on the use of the product . But 16 generally I would say that probably, yes, that would be 17 inappropriate . 18 MR . ROTH : I have nothing else, but I am not 19 concluding the deposition . I have not seen Dr . 20 Harbison's files, and specifically I have not seen the 21 articles that he has referenced here today . 22 And I am reserving my right, although 2:3 I'm certain it will be brutally opposed by Mr . Fogel, to 24 re-open this deposition ; and I do intend to do that iltti Flair court reporters p.c. 230 before you testify at trial, Dr . Harbieon . 2 EXAMINATION ,3 by Mr . Jansen : Q Other than what you've testified to so far in this deposition today, do you have any opinions or criticisms as to Medalist Champion, Mr . Kubinski's r employer? A No, sir, I do not . MR . JANSEN : Nothing else . 10 MR . FOGEL : Do you want to reserve signature to 11 read it? 12 THE WITNESS : Yes, please . 13 14 15 16 FURTHER DEPONENT BAITH NOT . e ***x l7 iy zo zi ?2 23 24 ~atti lair court reporters p.c. 231 STATE OF ILLINOIS) SS . COUNTY OF C O O R) 3 The within and foregoing deposition of the witness, RAYMOND D . HARBZSON, M .S ., Ph .D ., was token before NICHOLAS W . DIGIOVIINAII, C .S .R ., Notary Public, at 20 North Clark Street, in the City of Chicago, on the 19th day of November, Ia .D ., 1990 . y There were present during the taking of 10 this deposition the following counsel : 11 12 MR . ROBERT L . FOGEL, representing the Plaintiff ; 13 MR . PETER G . BELL, 14 representing Metal Lubricants Company ; 15 MR . GARY T . JANSEN, 16 representing Medalist Champion Screw Company . 17 The said witness was first duly sworn and 18 was then examined upon oral interrogatories ; the 19 questions and answers were taken down in shorthand by 20 the undersigned, acting as stenographer sod Notary 21 Public ; and the within and foregoing is a true, accurate 22 and complete record of all of the questions asked of and 23 answers made by the aforementioned witness at the time 24 and place hereinabove referred to . pacn J?~lair court reporters p.c. aaa 1 Z The signature of the witness was not waived 3 and the deposition was submitted to the deponent as per Eli copy of the attached letter . i 6 Pursuant to Rule 20711 of the Rules of the Supreme Court of Illinois, if deponent does not appear to read and sign the deposition within 30 days or make H 9 other arrangements for reading and signing, the to deposition may be used as fully as though signed, and 11 this certificate will then evidence such failure to 12 appear as the reason for signature being waived . The undersigned is not interested in the 13 14 within case, nor of kin or counsel to any of the parties . 15 Witness my official signature and seal as 16 Notary Public in and for Cook County, Illinois, on this 17 23rd day of November, A .D ., 1990 . 18 19 20 21 22 NICHOLAS N . DIGIOVANNI, C .S .R ., Notary Public 105 West Madison Street, Suite 1802 23 Chicago, Illinois 60602 Telephone : 782-8376 24 atti lair court reporters p.c . 233 1 2 3 E WITNESS CERTIFICATION 6 i I hereby certify that I have read the foregoing transcript of my deposition consisting of 9 pages 1 through 234, inclusive . Subject to the changes t0 set forth on the preceding pages, the foregoing is a It true and correct transcript of my deposition taken on 12 November 19, 1990 . 13 14 15 (signed) 16 17 IH 19 SUBSCRIBED AND SWORN TO before me this day 20 of A .D ., 1990 . , _ 21 22 Notary Public 23 __ 24 ~atti lair court reporters p.c. 234 2 Robert L . Fogel 3 20 North Clark Street Chicago, SL 4 DATE : November 20, 1990 5 Re : Kubinaki -v- Metal Lubricants 6 Deposition of : Raymond D . Harbison Mr . Fogel r The testimony in the above-entitled case 8 has been transcribed, and since signature has been reserved, please be advised that under the Rules, the 9 I deposition will be available at our office for 28 days from the above date for the witness to read and sign . 0 As provided by Rule 207A of the Supreme 11 Court Rules as amended, if after 28 days the witness 12 does not appear to read and sign the deposition, it will be understood that signature is waived and the deposition may then be used as fully as though signed . 13 Our office is open from the hours of 9 :00 14 a .m . to 4 :00 p .m ., Monday through Friday . 15 Please call to arrange an appointment when it is convenient for the deponent to come in to read and 16 sign the deposition . 1r Sincerely yours, 18 19 Nicholas W . DiGiovanni, C .S .R . 20 PATTI HLAIR COURT REPORTERS, P .C . 21 C/C : Bell, Jansen 22 23 24 ~em lair court reporters p.c. a35