Document zoBw8Epryxda5BkO9jjzbGxER

Douglas Merrill UNITED STATES DISTRICT COURT DALLAS COUNTY, TEXAS PLAINTIFF'S EXHIBIT 44TH JUDICIAL DISTRICT ----- oOo----- DANIEL ALDERETE, JR.; CHARLIE RAY BROWN; HAROLD R. CADENHEAD; ALBERT DICKEY; JOHN Z. GRACIA; CECIL EDWARD JOHNSON; ROSENDO LEAL, JR.; CHOYCE EDWARD MITCHELL; JOSEPH F. STEVENS; ARNULFO ARRENDONDO MADRIGAL, SR. and FAUSTINA MADRIGAL, Plaintiffs, ) ) ) ) ) ) ) vs. OWENS CORNING, ET AL, i 1 97-02640-B Defendants. i < i DEPOSITION OF DOUGLAS WAYNE MERRILL Friday, September 18, 1998 REPORTED BY; BETTY A. CALLIES CSR 11092 Job# 71461 Combs & Grecnlcy, Inc. I I Douglas Merrill 1 A No. 1 it. So in addition to changing the asbestos, some 2 Q What did theConsumer Product Safety 2 of the titanium could be taken out, because it was 3 Commission ultimately do on the proposed rules 3 only put in there to make the finished coat 4 published m the July 29,1977 -- 4 whiter. It wasn't white, but an off-white. 5 A Can we go back to the last one? 5 So I remember that coming up sometime 6 Q Yes, sir 6 m the past where it appeared, based on a meeting 7 a I recall that an earlier question had 7 or something, that was announced that that was 8 come up and I think it was m the testimony about 8 being done. It appeared that asbestos was 9 substituting asbestos for titanium And that 9 replacing titanium dioxide, but it was more than JO ended up m the lower cost. But titanium had been 10 justthat j i used m the product to make it white; and that was 11 ' Q Is there anything else as you reflect 12 the only reason for it And actually, what it was 12 back that you would like to change or add about 13 was a change from one source of asbestos to 13 your testimony? 14 another that had titanium as part of it -- and I 14 ! a I don't recall anything else. 15 think some literature that spoke to the fact that 15 Q I was asking you whether you knew what 16 by going from -- there was a Canadian source --1 16 the Consumer Product Safety Commission did with 17 don't know which one -- going from a Canadian 17 regard to the proposed rules published in the July 18 source to a Union Carbide product which had 18 28, 1977, Federal Register? 19 titanium -- it could replace the Canadian 19 A As I recall they acted upon them as 20 asbestos. And some of the titanium was taken out 20 proposed. I don't remember any changes. 21 because this asbestos was whiter and had titanium 21 Q In other words, despite die Asbestos 22 with it 22 Information Association's objection, and despite 23 So there was some literature that 23 the Paco objection, which is in Exhibit 3, the 24 spoke to that. And the way it spoke to that was 24 Consumer Product Safety Commission still decided 25 by putting Union Carbide in you could take 25 to go ahead with the ban as proposed, correct? Page 86 Page 88 1 titanium out and cut the price back. But m 1 ' a Yes, that's the way 1 recall it. 2 essence it was changing from one type of asbestos 2 . Q It's tpie, sir, isn't it, that when 3 to another type of asbestos. That is tsot of an 3 the ban of asbestos-containing joint compound was 4 impunty to titanium dioxide 4 enacted that there was a penod of time between 5 Q What type of a product were youjust 5 when you knew that it was going to happen and the 6 referring to; what was the end product, do you 6 last date that, for example, you could sell a 7 recall? 7 product, correct? 8 A It's probably ceiling texture, in 8 A 1 think there were three -- there 9 order to have any titanium in it 9 `was -- well, the first step would be it had 10 Q And the change removed the titanium, 10 passed. And then there would be a short penod of 11 is that correct, or the change added the titanium? 11 .notification, and then like a thirty-day penod to 12 A. No, either reduced it or took it out. 12 -stop manufacturing. And then another period of 13 Q In reducing or taking out the titanium 13 six months or something to stop selling it. It 14 did it add more asbestos? 14 'was like from January then to June. 15 A I don't believe so The switch was 15 | Q So m other words, it wasn't such that 16 from going from a Canadian source to the Union 16 front overnight or from nowhere you had to go from 17 Carbide source. And typically Union Carbide 17 manufacturing to not selling it the very next 18 asbestos itself was a little more efficient You 18 day -~ not without any notice, correct? 19 could get by with using, on a pound-per-pound 19 A Correct. 20 basis, a little bit less. But it had this whiter 201 Q In the penod of tune between when you 21 characteristic to it which actually had titanium 21 learned that you were no longer going to be able 22 dioxide with it. 22' to manufacture and sell asbestos-containing joint 23 In fact I think it was called -- I 231 compound and from the time the law forbid you to 24 don't remember the name of it -- High Purity Open, 24* sell it, Kelly-Moore made a corporate decision to ' 25 or something like that It had some titanium with 25.' sell as much as they could, didn't they? Page 87 | Page 89 Combs & Greenley, Inc. Page 86 - Page 89_ 1 a Or'71. 1 Q Tell me the testing that you did 2 Q Pnor to that you had no knowledge 2 a It was ceiling texture m ajoint 3 that asbestos could be harmful? 3 effort with Union Carbide [4 A No 4 Q You tested the ceiling texture7 5 Q Didn't see the warnings on the Johns 5 A Exposure to the applicator 6 Mansvtllebag? 6 Q Did you ever test joint compounds7 7 A No 7 A I don't recall if I tested it. 8 Q Didn't read anything indicating that7 8 Q If you learned asbestos was harmful to 9 A No 9 your health m '72, why did you continue to Q Did you look7 to manufacturing and selling asbestos-containing 11 A Did I look for asbestos hazards m 11 products until the government forced you to stop 12 1969, 1970, no 12 m '.78? 13 Q No, you did not? 13 A Well, the government set certain 14 a I don't remember what I did back then 14 thresholds, so we worked - we did a number of 15 Q Possibly you may have looked to see 15 things, but we worked towards eliminating it from 16 whether it was harmful; you just don't recall7 16 the product And also looked to see which ways we 17 A 1 don't recall. j7 could minimize the exposure to the fibers. 18 Q Don't you think before Kelly-Moore 18 . Q What is the best way to minimize the 19 marketed products it should have tested those 19 exposure to asbestos fibers7 20 products to see whether they would be safe for 20 MS ANDREWS Objection, calls for 21 use? 21 speculation. 22 a I don't know if they tested them 22 THE WITNESS The best way is no 23 before they marketed them 23 exposure at all. 24 Q You know they didn't do any testing 24 MR BARON Q Eliminating asbestos 25 for health problems m the time you were there, 25 is the very best way7 Page 166 Page 168 1 don't you? i . a Limiting exposure, yes. 2 A Yes -- well, no, we did some testing 2 ' Q If for some reason the company wanted 3 Q Starting when? 3 to put asbestos in after it learned it was 4 A Starting when? 4 harmful, what else could a company do to minimize 5 Q Yes. 5 exposure to users, or people working around users 6 A Well, we asked our insurance company 6 of products? 7 to come m and do some exposure tests after OSHA 7 a The labeling, which we did; the 8 Q But that didn't have anything to do 8 warning not to create a dust 9 with the use of the product, did it; that meant 9 Q Let's talk about the label. Do you 10 you were asking them to test remaining to believe that label was a warning? 11 manufacturing facilities to see if they were safe it A That's what it said, yes. 12 for its workers, right? 12 Q Do you believe it was an adequate 13 A. Yes, what the exposure was. 13. warning? 14 Q In manufacturing facilities? 14 A. It came from the government. 15 A Yes. IS MR BARON Objection, nonresponsive. 16 Q You never ever tested to see if the 16 Q Do you believe it was an adequate 17 use of the product would be harmful to health, did 17 warning? 18 you? 18 A. Yes, for that period of time it was. 19 A For a finished product, yes, we did. 19 Q Kelly-Moore made available to its 20 Q What do you mean, a "finished 20 employees who made the joint compound, mixed up 21 product"? 21 the dry ingredients, respirators, correct7 22 A With asbestos in it. 22 A Yes. 23 Q When did you first test a product to 23 Q And you did that because you thought 24 see if it was safe? 24 that might be the prudent thing to do to reduce or 25 A Probably '73, or after OSHa 25 eliminate exposure to asbestos, right7 Page 167 Page 169 Combs & Greenley, Inc. Page 166 - Page 169 i Douglas Merrill 1 A No 1 filed by the National Resources Defense Council 2 Q Because there is no nsk of that, is 2 demanding the banning of asbestos in patching an 3 there? 3 similar compounds intended for consumer use. And 4 A That I don't know We don't use it m 4 it then goes on to say, "A copy of the Asbestos 5 paint because of that. 5 Information Association/North America's response 6 Q You as a taxpayer don't want your tax 6 to this petition is attached " Would you look and 7 dollars going to try to support government that 7 see whether that appears to be what is attached to 8 could test every product made by every 8 Exhibit 147 9 manufacturer to determine which ones are safe, do 9 A It appears to be, yes 10 you7 10 | Q In fact if you -- 11 MS ANDREWS Objection, calls for 11 a It's probably what we looked at 12 speculation, argumentative 12 earlier 13 THE WITNESS As a consumer I would be 13 Q Yes, sir We had Exhibit 2 that I 14 paying for it one way or the other, whether it be 14 think had some incomplete pages in it, right, do 15 the government or every company involved 15 you remember that? 16 MR BARON Objection, nonresponsive 16 a Yes,Ido 17 Q Was that your answer7 17 Q Does Exhibit 14 appear to be a 18 a Yes. 18 complete copy of that? 19 Q Consumers of Paco products paid for 19 A. Yes, it does. 20 the lack of testing and the lack of investigation 20 Q Does Exhibit 14 refresh your 21 by Kelly-Moore products with their lives, didn't 21 recollection that you, m fact, did receive around 22 they? 22 September of '76 a copy of the Asbestos 23 MS ANDREWS. Objection, calls for 23 Information Association's position on the proposed 24 speculation, argumentative, and absolutely assumes 24 Consumer Product Safety Commission ban? 25 facts not in evidence 25 A I don't recall specifically having Page 198 Page 200 1 THE WITNESS I do not know that 1 received it; but yes, I did receive it 2 MR. BARON Q Do you deny it? 2 _ Q. You got the letter? 3 A I don't know if Paco customers paid 3 a Yes. 4 for that with their lives 4 ) Q And you think you got the attachment? 5 MR BARON Can we take a quick break? 5 A Yes. 6 (Whereupon, there was a break taken at 6 Q And, in fact, the letter and the 7 4:30 to 4'45 p m.) 7 attachment exist in the Kelly-Moore files today7 8 MR BARON Mr Memll, let me show 8 ` A Yes. 9 you a document that's been marked Exhibit 14 to 9 Q As indicated by the KMX numbers, 10 your deposition, and ask you to Ipok at that, 10 correct? 11 please, and tell me whether you recall receiving 11 A Conect. 12 Exhibit 14. 12 Q Do you recalldiscussingwith Mr 13 (Whereupon, Exhibit 13 Rhodes the proposed ban as he has referenced m 14 14 was marked for 14 the letter? 15 identification) 15 A I don't remember him as an individual, 16 A I recognize this as having received 16 particularly, with Union Carbide, but I know that 17 this, yes. 17 the issues surrounding the ban were discussed with 18. Q In fact, it is a letter dated 18 the asbestos suppliers; certainly Union Carbide 19 September 27, 1976, addressed to you? 19 was one of them. 20 A Conect. 20 Q In fact, Mr Rhodes in this letter, 21 Q It's from the UnionCarbide folks, is 21 Exhibit 14, says, "I warn to thank you for your 22 that right? 22 assistance in providing the information needed for 23 a Yes 23 this response." Do you see that? 24 Q They are referencing in this letter -- 24 A Yes. 25 well, it says that you discussed the petition 25 Q As far as Mr Rhodes was concerned you Page 199 1 Page 201 Combs & Grecnley, Inc. Page 198 - Page 201 i