Document zdd2NMp9ErG00Q7xLQonoZgnR

FILE NAME: Todd Shipyards (TODD) DATE: 2008 June 6 DOC#: TODD020 DOCUMENT DESCRIPTION: Legal - Declaration of Barry Castleman 1 Dean A. Hanley, Esq. (State Bar No. 169507). Langston M. Edwards, Esq. (State Bar No. 237926) 2 Robert L. Barrow, Esq. (State Bar No. 208466) Gloria C. Amell, Esq. (State Bar No. 230255) 3 PAUL & HANLEY LLP 1608 Fourth Street, Suite 300 4 Berkeley, California 94710 Telephone: (510) 559-9980 Facsimile: (510)559-9970 6 Attorneys for Plaintiffs 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO-COURT OF UNLIMITED JURISDICTION 10 11 12 CHARLES HUDIURGH, Individually and as ) Case No : 456023 13 HsuUccDeIsBsoUr-RinG-Hin,tedreecset atoseOd,DanEdTCTHAAI RLES W )) DECLARATION OF BARRY L HDIBURGH, BRIDGET L. LUND, BRET ) CASTLEMAN, ScD IN SUPPORT OF 14 L HUDIBURGH, BARTH W. HUDIBURGH ) PLAINTIFFS' OPPOSITION TO 15 haneidrsBoRfAODDLEETYTAP. IH. HUUDDIBIBUURRGGHH, a, sdleecgeaal sed,)) DCEOFREPNODRAANTTIOTNO'DSDMSOHTIIPOYNAFRODR 16 Plaintiff, ) SUMMARY JUDGMENT ) 17 18 . W CHESTERTON COMPANY, el a l 19 Defendants. Date: June 6, 2008 j TDiempet:: 93:0310, aH.mon.. Peter Busch } Complaint Filed: September 8, 2006 Trial Date: July 7, 2008 20 21 I, Barry I. Castlenian, ScD declare as follows: 22 1. Ia m over eighteen years old and not a party to this action. The information stated 23 herein is based on my personal knowledge, and if called as a witness, I could and would testify to 24 the following. 25 2. I hold a Bachelors degree in Chemical Engineering, a Masters degree in 26 Environmental Engineering, and a Doctorate o f Science from Johns Hopkins University. I have 27 more than 30 years o f professional experience in the area o f asbestos and other occupational and 28 DECLARATION OF BARRY I. CASTLEMAN, SCD IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT TODD SinPYARDS CORPORATION'S MOTION FOR SUMMARY JUDGMENT C:\Documoits andSrttings\jsass\liesktofi\FRINTFUR BARRYVlOJ)DSH1P MSJ opp Decl BCasUemmdnc P i* 1 1 environmental health problems. Currently, I am self-employed as an environmental health 2 consultant. 3 3. Attached hereto is a true and Gprrect copy of my curriculum vitae. If called upon to 4 testify* I could and would testify to the qualifications contained therein. 8 4. I have studied development o f state of the art with respect to medical and scientific 6 issues relating to asbestos and aSbestos^related diseases for more than twenty years. I have 7 reviewed hundreds of scientific, medieal, and corporate documents concerning the hazard of 8 asbestos and the development and history o f the knowledge o f asbestos hazards. In addition* to 9 publicly available medical and scientific literature* I have extensively researched and reviewed 10 extensive discovery from asbestos litigation, including depositions* documents* and interrogatory 11 responses from asbestos industries and their officers and other employees I have undertaken 12 extensive research in public arid private libraries in the United States, Canada, and other 13 countries. 14 5. I have been qualified as an expert on the history o f the asbestos industry and the 15 development of knowledge about asbestos and its hazards, also known as "state-of-art" in 16 numerous asbestos lawsuits, including those that have been brought in California courts. I have 17 testified as a "state of art" expert in many asbestos lawsuits. I frequently testify before i s congressional committees and serve as an expert consultant to many organizations. My expert testimony is on the subject of my doctoral thesis at the Johns Hopkins School of Hygiene and 20 Public Health, "Asbestos: an Historical Case Study of Corporate Response to an Industrial 21 Health Hazard" (1985) 22 6. Iam the author of Asbestos: Medical and Legal Aspects, now in its fifth edition 23 (2004). The first edition was largely identical to my doctoral thesis, which is a major 24 authoritative treatise on "state-of art." My book has been relied upon by the scientific and 25 medical communities and cited as a learned treatise by a number of courts. It is extensively 26 footnoted and annotated and is available in libraries and bookstores throughout the United States. 27 28 DECLARATION OF BARRY I. CASTLEMAN, SCD IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT TODD SHIPYARDS; CORPORATION'S M O f ION FOR SUMMARY JUDGMENT C:\Documenlft and Settings'jsassMJesktopXPKINT FOR BARKYVIOUOSHIF MSJ opp Dccl bCastleman.doc p fjgg 2 1 I have also published many articles on the asbestos and industry knowledge o f asbestos related 2 heath hazards. 3 7. Based on my studies and research, I have formed the following conclusions; 4 a. Health hazards from asbestos exposure were identified in the 1890s, 5 b. In the 1920s, the term "asbestosis" was used to describe pulmonary fibrosis 6 caused by asbestos exposure. Asbestosis was recognized as a disabling and 7 potentially fatal disease. 8 c. During the 1940s, it became known and recognized that asbestos exposure could 9 cause pulmonary cancers. 10 d. During the 1950s; mesothelioma was recognized as a separate cancer that couid ii be caused by asbestos exposure 12 e. In addition, as early as the 1930's it was recognized that individuals who did not 13 work directly with asbestos products arid who had relatively brief or intermittent 14 exposures to asbestos developed fatal asbestos disease including cancer, (e.g., 15 Wood, W.B. and SlSyne, S.R., "Pulmonary Asbestosis: A Review o f One 16 hundred Cases," Lancet 2: 1383-1385, 1934). By 1954, there were 20 separate 17 published case reports o f asbestosis, lung cancer, arid mesothelioma among 18 asbestos product users. 19 f. A review of relevant scientific literature, regulatory policies and corporate 20 documents reveals that as early as the 1913, it was known and recognized that 21 workers can take toxic dusts home on their clothing and cause a hazard to their 22 households. A sample o f the relevant literature includes: 23 1913 - . . . By removing the working clothes before meals and before leaving the factory, the poison is not earned into 24 lunchrooms or into homes o f the workers. "Safety: Methods for Preventing Occupational and Other Accidents and Disease " 25 William H. Tolman, Leonard B. Kendall. 1913. 26 27 1924 "It is desirable in all dusty occupations, that the workmen should take off all their street clothing before beginning 28 DECLARATION OF BARRY I. CASTLEMAN, SCD IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT TODD SHIPYARDS, CORPORATION'S MOTION FOR SUMMARY JUDGMENT ................. C:'Documents and Sertings\jsass\I)csktop\FRtNT FORBARKYYI'ODJDSHIPMSJ opp Heel B('axeman.doc 1 work, and this is absolutely essential when the occupation involves exposure to poisonous dust. `Industrial Health." George M. 2 Kober, Emry R. Hyhrst. 1924: 3 1943 "Dressing rooms should be provided for men whenever the type of work performed involves exposure to excessive dust, 4 heat; fum es;. . . Workers should be required to change clothes completely and to take a shower both at the end of each shift. . . 5 "Manual o f Industrial Hygiene and Medical Services in War 6 Industries." William M. Gafafer. 1943. 7 1948 - . . . Appropriate work clothes,.. . play a prominent part in 8 an industrial worker's health and efficiency. This is especially true when persons are working with more or less toxic or carcinogenic 9 materials . . . many o f the more progressive industrial organizations, . . . have for years supplied their employees with io work clothing and have instituted a laundry service. "Industrial Work Clothes: Their Provision and Laundering." Roy S. Bosnib. S 1948. 12 In 1948, the National Cancer Institute recommended that workers handling carcinogens be provided with "proper sanitary measures, 13 such as special eating quarters, washing and bathing facilities, and 14 separate lockers for street clothes and work attire," 1951 - "Workers who handle or are exposed to harmful materials 15 in such a manner that contact of work clothes with street clothes will communicate to the latter the harmful substances accumulated 16 during working hours should be provided with facilities which will 17 prevent this contact and also permit the free ventilation or drying of the work clothes while they are not in use." U. S. Department of Labor (Walsh-Healey) Publication. 196Qs --In 1960, a report was published in the British Journal o f 19 Industrial Medicine linking environmental asbestos exposure to 20 mesothelioma. The study involved people exposed to asbestos from living and/or working near asbestos mines or working with 21 lagging steam pipes. This article (Wagner et al., "Diffuse Pleural Mesothelioma and Asbestos Exposure in the Northwestern Cape 22 Province") was available in medical libraries and was widely cited. There were additional publications in the British Medical Journal 23 during the early 1960s that discussed mesothelioma occurring 24 throughout the constfuctioh trades and shipyards among individuals who did not Work directly with asbestos but rather were 25 exposed as bystanders near others working with asbestos. 26 8 Corporate physicians advised safeguards that would have protected families of 27 workers at a Chrysler plant being built in 1946, The plant was to use asbestos and chemicals that 28 DECLARATION OF BARRY I. CASTLEMAN, SCD IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT TODD SHIPYARDS, CORPORATION S MOTION FOR SUMMARY JUDGMENT C:\Documet7ls andSettings\jsa*s\Desktop\PKlNTFOKBARKWITHJDSHIP MSJ oppDec! BCartlcmandoc Pftg 4 1 could cause toxic effects and dermatitis. Protective clothing, laundry, showers, and separate 2 lockers for street and work clothing were recommended by the doctors. 3 9. Retired Monsanto chemist and industrial hygienist Jack Garrett has testified that in 4 the 1950'S; that chemical company's employee protection against asbestos from insulation products including showers and daily changes o f clothes- "We went down to shoes and socks; S underwear and all. We didn't want it at home:" (deposition in Schmidt; District Court o f 7 Jefferson Co. TX; Dec. 16, 1993). 8 10. The carcinogenicity o f asbestos was widely recognized in medical and scientific 9 writings by 1954 and was noted in about 100 published articles, textbooks, and abstracts. These 10 included New York Times <Jan; 7,1948), Business Week (Nov. 13,1948), Scientific American 11 magazine (January, 1949), Newsweek (May 15, 1950), and Encyclopedia BrifaVimca (1952). 12 11. The carcinogenicity o f asbestos was well recognized in the oil industry and was 13 repeatedly noted in reports and minutes o f the American Petroleum Institute's Medical Advisory 14 Committee in the years 1945-1954 ("Oil Industry," Asbestos: l 5th Ed., 15 pp. 627-634, 2004). 16 12. On December 7-8, 1942, the U.S. Maritime Commission held a meeting for 17 shipbuilding companies iii preparation for issuance, several months later, o f the publication 18 Minimum Requirementsfo r Safety and Industrial Health in Contract Shipyards. Asbestos was 19 among the health hazards discussed at that meeting. Stenographers' minutes record that TODD 20 SHIPYARDS CORPORATION was present at the meeting, represented by: Robert S. Moore for 21 Todd-Hoboken Dry Docks; George Schnakenberg for Todd's Erie Basin Dry Docks; and Herbert 22 A. Smith for Todd-Johnson Dry Docks. 23 13. Further, TODD SHIPYARDS CORPORATION placed a paid advertisement in the 24 June 1944 issue o f Heating andVentilating This issue contained an article titled "Dust a 25 Industrial Health Hazard," written by a professor at the University o f California, Berkeley 26 Additionally, during World War II, TODD SHIPYARDS obtained shipyard survey reports, 27 which I have reviewed. An August 1945 survey report specifically notes minimum standards for 28 DECLARATION OF BARRY I. CASTLEMAN, SCD IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT TODD SHIPYARDS; CORPORATION'S MOTION FOR SUMMARY JUDGMENT C:\Uocunrents andSdtrag5\js3ssU)ettop\PRINT POK BAKKYMODDSHIF MSJ opp Dec! BCasttenandoe Paee 5 1 asbestos. In September 1945, a survey report o f a TODD shipyard referenced past 2 recommendations to ventilate the asbestos shop to control dust, and to insure proper use of 3 goggles and respirators. 4 14. Thus, it is my opinion that by th f mid-1950s, it was w ill established by the literature 5 and well-known by the asbestos, oil, chemical, automotive^ railroad; and shipyard industries that 6 asbestos dust was toxic and carcinogenic. 1 15. In addition, by the early 1950s it was recognized in the medical and scientific 8 literature that individuals could contract asbestos-related diseases as a result of relatively low 9 exposures to asbestos dust. io 16. it is further my opinion that these industries recognized; prior to 1954, that workers 11 should be provided clothing, showers arid laundry services whenever they worked with toxie and 12 carcinogenic dust, including asbestos-containing dust, in order to prevent exposures to the 13 w orker's families. Therefore, it was known and kriowable by 1954 at the latest that take-home 14 exposures to asbestos dust created a preventable risk and hazard for members o f households o f 15 workers in these industries. 16 17. In the early 1960s, information became more widespread arid Conclusive that workers 17 bringing home asbestos oh their clothes and in other ways could contaminate the household to 18 such an extent that family and other household members developed mesothelioma. At a large 19 conference in 1964 hosted by the New York Academy o f Sciences, numerous studies were 20 presented regarding household and environmental exposures. The authors o f one study 21 concluded that household exposure was predominant in importance over neighborhood exposure, 22 in cases where both types occurred. In 1965, numerous publications, including the Sunday Times 23 and The Guardian, offered coverage o f the Newhouse and Thompson report. This 24 epidemiological study found that occupational, household, and neighborhood asbestos exposures 25 were each statistically significantly associated with mesothelioma; that is, mesothelioma patients 26 were much more likely to have had exposure through household contact with somebody who 27 worked with asbestos than were patients in the same hospital who died from other causes. 28 DECLARATION OF BARRY I. CASTLEMAN, SCD IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT TODD SHIPYARDS, CORPORATION'S MOTION FOR SUMMARY JUDGMENT C:\Documenrs and Scttin^\jsa$s\Desktop\PKINTFOR BAKKYVJODDSH1P MSJ opp Decl BCastJemaadoc Pil QP 1 18. I understand the facts o f this case to be as follows: In 1960 or 1961, plaintiff 2 CHARLES HUDIBURGH worked at TODD SHIPYARD in Galveston, Texas. Mr. 3 HUDIBURGH worked onboard a decommissioned United States Navy reserve training 4 submarine that TODD was scrapping; While Mr, HUDIBURGH was onboard; TODD employees removed insulation throughout the submarine; using saws and knives to out insulation 6 loose from pipes. Mr. HUDIBURGH was exposed to asbestos as a result of this work; and he 7 wore his work clothing home, where his wife, decedent ODETTA HUDIBURGH, shook and 8 laundered it; 9 19. Based on these facts* as well as my studies* research* and experience* it is my opinion 10 that in 1960 or 1961, TODD knew or should have known that: workers like M r; HUDIBURGH i i would Carry home asbestos-containing dust on their clothing and cause a hazard to their 12 households; and that providing separate lockers for work clothes and street clothes to workers 13 like Mr. HUDIBURGH; and warning employees like Mr. HUDIBURGH about the lethal 14 properties of asbestos was necessary to prevent workers like Mr. HUDIBURGH from being 15 exposed to asbestos and getting asbestos fibers oh their clothing and carrying it home. 16 I declare under the penalty o f perjury under the laws o f the State of California that the 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF BARRY I. CASTLEMAN, SCD IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT TODD SHIPYARDS, CORPORATION'S MOTION FOR SUMMARY JUDGMENT C:\DociimateandSdtinE\jrass\l)eskop\PRINTFOR HAKKYVrOMDSHJPMSJ ODDJ)ec[ BCTasHemandnc n