Document zzy6Y4DdV0Joj9XEedNQR1QZB

FILE NAME Kaiser Gypsum KG DATE 1999 June 1 DOC KG054 DOCUMENT DESCRIPTION Legal - Deposition of Brentwood Crosby Vol II IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING 000-- JOHN E. CRUM and MARILYN J. CRUM a married couple Plaintiffs vs. COPY No. 98-2-24915-3SEA THE E. et al BARTELLS COMPANY Defendants 10 11 12 rind 13 DEPOSITION OF BRENTWOOD CROSBY 14 VOLUME II 15 Pages 70 to 171 16 17 18 19 Taken before KIMBERLEY RICHARDSON 20 CSR No. 5915 21 June 1 1999 22 23 24 One Kaiser Plaza Suite 505 Oakland California 94612 25 451-1580 Fax 451-3797 Certified Shorthand Reporters DE EXAMINATION BY MR PETTY EXAMINATION BY MS JACKSON EXAMINATION BY MR BERGMAN 71 PAGE 76 155 154 156 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBITS KAISER GYPSUM 3 Affidavit by Dick Madsen 4 Distribution List and office Memorandum dated 5-3-73 50 Memorandum from R.A. Madsen 6 Letter to Jack Sullivan dated 6-19-73 7 R.A. Madsen Chron file 1975 8 office Memorandum dated 6-27-73 9 Affidavit by George Kirk 10 Letter to Victor Abnee Jr. dated 4-5-74 : 11 Bucket PLAINTIFFS 9 Responses to Interrogatories PAGE 88 95 108 111 114 119 124 138 105 161 Aiken & Welch Court Reporters 72 DEPOSITION OF BRENTWOOD CROSBY 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BE IT REMEMBERED that pursuant to Notice and on the 1st day of July 1999 commencing at the hour of 10:00 a.m. in the offices of Aiken & Welch One Kaiser Plaza Suite 505 Oakland California before me KIMBERLEY RICHARDSON a Certified Shorthand Reporter personally appeared BRENTWOOD CROSBY produced as a witness in said action and being by me first duly sworn was thereupon examined as a witness in said cause ~--o00--- FRANCIS FERNANDEZ Kazan McClain Edises Simon & Abrams 171 - 12th Street Suite 300 Oakland California 94607 appeared on behalf of the Brentwood ; Crosby 45 MATTHEW P. BERGMAN Weinstein & Bergman 1201 Third Avenue Suite 5300 Seattle Washington 98101-3000 appeared on behalf of the Plaintiffs Aiken & Welch Court Reporters 73 GABRIEL A. JACKSON PAUL J. GAMBA Jackson & Wallace 580 California Street 15th Floor San Francisco California 94104 appeared on behalf of the Defendant Kaiser Gypsum Company Inc. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PATRICIA FRIEDEL Gordon Thomas Honeywell Malanca Peterson & Daheim One Union Square 600 University Suite 2101 Seattle Washington 98101-4105 specially members of the Center appearing for those defendant for Claims Resolution who have been served in this action PAUL CLARK Lane Powell Spears Lubersky 1420 Fifth Avenue Suite 4100 Seattle Washington 98101-2338 appeared on behalf of the Defendant W.R. Grace & Company KATHERINE M. STEELE Steele & Sales 700 Fifth Avenue Suite 5511 Seattle Washington 98104 E.J. Bartells appeared on behalf of the Defendant Company Aiken & Welch Court Reporters 74 KENNETH E. PETTY Williams Kastner & Gibbs Two Union Square 601 Union Street Suite 4100 Seattle Washington 98101-2380 appeared on behalf of the Defendant Kaiser Gypsum Company Inc. ALSO PRESENT Ondrietta Johnson Video Production 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Aiken & Welch Court Reporters 75 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR PETTY For the record my name is Ken Petty and I'm the attorney of record for Kaiser Gypsum in the lawsuit entitled John E. Crum and Marilyn J. Crum vs. E.J. Bartells pending in King County Superior Court in Seattle Washington This is the continuation of the videotape deposition of Brentwood Crosby Plaintiffs conducted and completed their videotape direct examination of Mr. Crosby on January 19 1999 in Seattle Washington Defendant Kaiser Gypsum is proceeding here today July 1st 1999 in Oakland California with its videotaped examination of Mr. Crosby pursuant to the order of the Honorable Anne Schindler For the record would the videographer please identify herself as well as the date time and location for the videotaping THE VIDEOGRAPHER My name is Ondrietta Johnson I'm a qualified video technician and a notary public for the County of Alameda State of California This deposition is located at Aiken & Welch the Ordway Building One Kaiser Plaza Suite 505 Oakland California 94612 It is July 1st 1999. The present time is 10:05 Aiken & Welch Court Reporters 76 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR PETTY And for the record stipulations will be the same as were reached for the January 19 1999 deposition is that fine MS FRIEDEL Yes MR PETTY May we go ahead and proceed to swear the witness please BRENTWOOD CROSBY sworn as a witness testi asffi ole lod ws EXAMINATION BY MR PETTY MR PETTY Q. Good morning Mr. Crosby I introduced myself We met in Seattle and again this morning And we're here today are we not right across from the Kaiser Center where you worked for Kaiser for some 14 years A. Right Q. Near the end of the testimony that you gave at Mr. Bergman's request in Seattle earlier this year do you remember testifying that quote Kaiser Gypsum was the best company I ever were very upset that they sold the worked for We company to Domtar of Canada Do you remember that testimony A. Yes Q. So I take it it's true that you found that Kaiser Gypsum was a great company to work for Aiken & Welch Court Reporters kee 77 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Very much so Q. And in fact if it hadn't been such a great company you would not have stayed with them for 18 years would you sir A. No. Q. In terms of some of the reasons why you found it to be such a great company to work for did you find that the people generally got along well A. Yes their Q. Did you find that the people took | job seriously A. Yes Q. And did you find that from your perspective the people tried their best to create good products to satisfy the needs of their customers A. Yes Q. Did you find that the people at Kaiser Gypsum worked well together : A. Yes Q. Did you find that communicated with one another the people whether it effectively was a formal meeting or just an informal chat in the hallway A. Yes Q. And was it your perception that the people at Kaiser Gypsum cared about each other Aiken & Welch Court Reporters 78 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes Q. Did you find that the people at Kaiser went So far as to do things with one another Gypsum from work whether it's golfing with one another away fishing with one another socializing whatever they wanted to do A. Yes Q. Now in terms of your 18 years with Kaiser Gypsum did individuals you who find it to be a collection of cared about their customers as well A. Yes Q. Now isn't it true sir that had the not been sold to Domtar of Canada in 1978 company you likely would have spent the rest of your work career and retired as a Kaiser Gypsum employee A. Yes MR FERNANDEZ Objection It calls for speculation on the part of the witness MR PETTY May you identify yourself because I don't believe you are MR FERNANDEZ on the record Sure My name Fernandez and I'm here representing is Frank Mr. Crosby MR Q. PETTY Now Thank you Mr. Crosby when Kaiser Gypsum was sold to Domtar in 1978 isn't it true that you Aiken & Welch Court Reporters 79 continued working at Domtar with many of your same fellow workers who you had worked with at Kaiser Gypsum A. Yes Q. And in fact wasn't the plaintiff in this case Mr. John Crum one of your workers who you continued to work with at Domtar A. Yes Q. And didn't you and Mr. Crum in fact 10 continue to work together for another 10 or 11 years 11 at Domtar after Kaiser Gypsum was sold 12 A. Yes 13 Q. Now during your 18 years with Kaiser as 14 Gypsum isn't it true that it appeared to you to be a 15 conscious company concerned with the health and 16 being of its employees 17 A. . Yes 18 Q. And did the company provide you and the 19 other employees health care insurance 20 A. Yes 21 Q. Did the company provide you and the other 22 employees Workers Compensation insurance for any 23 accidents that might occur 24 A. Yes 25 Nowe Q. And speaking for yourself I take it Aiken & Welch Court Reporters 80 isn't it true that during the 14 years that John Crum worked for you as an area sales manager you certainly did not want or intend him to be harmed performing his normal job duties calling on customers and selling the company's products did you A. No. Q. And you got to know other people in management at the company pretty well over the years did you not 10 A. Yes 11 Q. From getting to know those others in 12 management isn't it true sir that you have 13 absolutely no reasotno believe that anyone else in 14 management wanted or intended area sales managers like 15 John Crum to be harmed performing their normal duties 16 calling on customers and selling products 17 18 19 20 21 22 A. Yes the Q. Now in terms of your 18 company sir isn't it true that years working many of your for close friends even today some 21 years after Kaiser Gypsum was sold many of your close friends today are people you worked with at Kaiser 23 A. Yes 24 Q. And those would be -- before he passed 25 away John Crum was a close friend of yours cee Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes 2 And Dick Madsen you mentioned his name in the prior deposition A. Yes Q. Does he continue to be a close friend of yours A. Yes Q. And you mentioned Byron Havernick Was he a former employee at Kaiser Gypsum A. . Yes Q. And does he continue to be a close friend of yours A. Yes Q. And I take it there are others that I haven't mentioned correct A. Yes Q. Now you and Mr. Crum -- how close was your relationship with Mr. of, Crum friends Were you very close A. Yes Q. And I take it you were close enough that you would help Mr. Crum out if he needed your help A. Yes Q. If he asked you for something you wouldn't hesitate to give it to him Aiken & Welch Court Reporters 82 e Neate" A. No. Q. Now Dick Madsen do you call on or visit Dick Madsen quite frequently even today 1999 A. Yes Q. How far apart do the two of you live A. . Probably about 15 miles He lives in Danville Crum Q. And I think testified that you you and testified or perhaps Mr. Dick Madsen traveled from 10 the Bay Area to Nevada to visit John Crum when he took 11 ill last year in 1998 12 13 14 15 16 A. Yes Q. Now I want to talk to you some about Mr. Madsen because I take it you've gotten to know him very very well in the years that you've worked with him and since then while you've been his close friend 17 correct 18 19 A. Yes . Q. How long have you known Dick 20 A. Since approximately 1965 21 Q. Can you think of any reason why your good 22 friend Dick Madsen would lie about his direct 23 responsibilities and experiences at Kaiser Gypsum 24 A. No. 25 Q. Now while Mr. Madsen was employed by Aiken & Welch Court Reporters 83 anit Kaiser Gypsum wasn't his position director of advertising or director of advertising and public relations something of that nature A. Yes Q. And in that position wasn't Dick Madsen the individual at Kaiser Gypsum who was responsible for the design and the ordering of packaging materials and labels for every product which bore the name Kaiser Gypsum 10 A. Yes 11 Q. Now by contrast sir isn't it true that 12 you as sales - in the sales department you had no 13 responsibilities relating to the design or the content 14 of the product packaging or the labels correct 15 A. Right 16 Q. And isn't it true sir that in your 17 position you were not involved in management decisions 18 or discussions involving issues like product 19 packaging product formulations or caution labels 20 That wasn't what you did 21 A. No. 22 Q. And since that was not part of your direct 23 responsibilities I take it you would not have 24 personal knowledge would you of the company's 25 discussions or decisions regarding the product Aiken & Welch Court Reporters 84 Oy formulations regarding the product packaging or regarding caution labels MR FERNANDEZ Let me just object to the question as posted is compound If you can answer that question go ahead MR PETTY I'm happy to break it into three if you wish Q. Would you rather I rephrase that question A. Yes 10 Q. . All right Since you were not involved in 11 discussions and decisions concerning issues about 12 product packaging I take it sir you would not have 13 personal knowledge of the discussions and the Pane 14 decisions the company made about the product 15 packaging correct 16 A. Correct 17 Q. And similarly since you were not involved 18 in the discussions and the decisions about product 19 formulations I take it sir you would not have 20 personal knowledge of the discussions and the company 21 decisions about the product formulations correct 22 A. Correct 23 Q. And similarly with respect to labeling N caution labels and that nature that might go on a 25 package since you were not directly involved with Aiken & Welch Court Reporters 85 those issues I take it you would not have personal knowledge of the discussions and the decisions of the company concerning product labeling correct A. Correct Q. Now sir would you agree with me that Dick Madsen would have far greater expertise and knowledge about the packaging and the labeling of Kaiser Gypsum products A. Yes 10 Q. - And if Dick Madsen were to testify under 11 oath that Beginning in 1972 pursuant to OSHA 12 regulations Kaiser Gypsum placed a caution label on sage? 13 all of its containing products do you have 14 any reason to believe that he would be lying 15 16 17 18 19 20. 21 22 23 24 A. - No. Q. And if you didn't recall such caution labels yourself being on the product but your friend Dick Madsen told you in fact swore under oath that they were on the packaging of the Kaiser Gypsum containing products would you believe him and stand corrected MR FERNANDEZ I'm going to object It calls for speculation It misstates his prior testimony He has not testified he doesn't recall He testified 25 he didn't see any labeling Aiken & Welch Court Reporters 86 So as stated I think it's an unfair question It assumes facts not in evidence It's misleading And on that basis I'm going to instruct my client not to answer MR PETTY not to answer You're going to instruct your client MR FERNANDEZ That's right MR PETTY What's the authority for instructing your client not to answer under Washington rules 10 MR FERNANDEZ I just stated my objectioannsd 11 the reasons why 12 MR PETTY Q. Did you understand the question 13 that I asked you Mr. Crosby 14 A. Yes 15 Q. And are you going to listen to the 16 instruction of your counsel and not answer it here on 17 the record 18 A. Yes . 19 Q. Let me ask you this sir If Dick Madsen 20 were to testify under oath that the caution label 21 read Caution Contains asbestos fiber Avoid 22 creating dust Breathing asbestos dust may cause 23 serious bodily harm would you believe him that that 24 is in fact what the caution label said 25 MR FERNANDEZ I'm going to object Again Aiken & Welch Court Reporters 87 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you're askinmgy client to speculate about what someone might testify to and there has been no testimony to that effect at least presented to my client You're asking him to judge the credibility of someone else and that's argumentative and an improper question You can ask my client about his knowledge of the various issues but I think to the extent you're asking him to pass judgment on what someone else might say if they were faced with that question under oath it's just unfair and I'm going to instruct my client not to answer MR PETTY I would just state for the record Mr. Fernandez that I do not believe your objections are proper under Washington rules of procedure I do not believe it is proper to instruct the witness not to answeir n either of these situations nor do I believe is it proper to have a speaking objection as you have lodged for the record And if this continues we will need to get in touch with Judge Schindler for that But in recognition of your objection and to alleviate any fears hopefully any basis for you to continue in that regard I would like to have the court reporter mark what will be Kaiser Gypsum Exhibit Aiken & Welch Court Reporters 88 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 No. 3 And I have one copy for you I didn't realize that you were going to be here I have one copy for Matt I should say Document marked Kaiser Gypsum Exhibit No. 3 for Identification MR PETTY Q. Mr. Crosby have you had an adequate opportunity to read what has been marked as Kaiser Gypsum Exhibit No. ? | A. . Yes Q. From reading it can you tell us is that a signed sworn affidavit from your friend Dick Madsen who you worked with at Kaiser Gypsum for many years A. Yes Q. And sir you have never seen that affidavit before I take it A. No. Q. So when you testified in Seattle in January of this year you did not have that information to consider this sworn testimony of Mr. Madsen correct A. Q. . No. I would like to go through the affidavit with you then The first paragraph could you read it Is your Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 89 eyesight adequate to be able to read that well into the record or would you like me to read it and then I want to ask you questions about it MR FERNANDEZ Is there any purpose in having my client read This is a document in the record The document speaks for itself If you want to ask him some question about No. 1 -- but there is no purpose sir in having my client read the document MR PETTY Do you have an objection MR FERNANDEZ Yes I think it's unfair and it's unnecessafroyr my client to have to read into the record a document that you're making an exhibit for the record THE WITNESS If you want to read it you can read it MR FERNANDEZ I'm happy to do it That's all I asked Q. Let's go ahead and do that sir The first paragraph -- and please read along with me and if I misstate even a single word would you stop and correct me Is that fine A. Yes Q. The first paragraph sir it reads I was employed with Kaiser Gypsum Company Inc. hereinafter Kaiser Gypsum from 1966 to 1978 when Kaiser Gypsum Aiken & Welch Court Reporters 90 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ceased its operations While employed with Kaiser Gypsum my job title was director of advertising and public relations Did I read that correctly sir A. Yes Q. Is that all truthful information to your knowledge A. To my knowledge yes Q. And looking at the second paragraph Madsen states under oath I was a friend and Mr. worker of John Crum and accompanied Brent Crosby to visit Mr. Crum a few weeks prior to his death Is that a true statement to your knowledge A. Yes Q. I would like to jump ahead to the fifth paragraph And it states As director of advertising and public relations it was my responsibility to supervise the design and order all packaging materials and labels for every product which bore the Kaiser Gypsum name Did I read that correctly sir A. Yes Q. And to your knowledge and understanding is that a true statement that Mr. Madsen made under oath Aiken & Welch Court Reporters 91 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Yes Q. And now the sixth paragraph reads I have been informed that Mr. Brentwood -- Brent Crosby a former district sales manager for Kaiser Gypsum with whom I'm personally acquainted testified recently in deposition that he was unaware of any caution labels on any of the packages of Kaiser Gypsum's containing products Did I read that correctly sir A. Yes Q. And did Mr. Madsen properly characterize the testimony that you gave about six months ago in Seattle MR FERNANDEZ I'm going to object The record of what my client said six months ago can be referenced no There's need for my client to characterize whether what Mr. Madsen is saying is an accurate reflection of what he said six months ago I think that question is not likely to lead to the discovery of admissible evidence It's argumentative This is trial testimony I don't think this is the type of question that any judge in any jurisdiction would allow and require that a witness answer So on that basis I'm going to instruct him not Aiken & Welch Court Reporters 92 to answer MR PETTY Counsel I would again ask you to please adhere to the rules of procedures and the objections pertinent to Washington civil litigation You are not doing so You have continued to make speaking objections In this instance you are now ruling on your objections which is thoroughly improper I would ask you to please make proper 10 objections It will be at my peril if I don't 11 understand the nature of your objection 12 I am entitled to havea clean record just as I 13 afforded Mr. Bergman and Mr. Crosby the opportunity to 14 speak clearly and be heard and develop a clean record 15 at their deposition in January of this year 16 I will once again ask you for that courtesy and 17 adherence to our rules May I have it sir 18 MR FERNANDEZ I will proceed in what I think 19 is the best interest of my client 20 MR PETTY Q. I'm going to read you sir 21 paragraph 7 and 8. The first paragraph 7 references 22 what I just read from paragraph 6. It says The 23 statement in deposition by Mr. Crosby that Kaiser 24 Gypsum's containing products never contained 25 a caution label is not correct Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 93 Did I read that properly sir A. You read it properly Q. Do you think that perhaps Mr. Madsen is right that there were caution labels on the products and you simply don't recall A. Yes Q. And in paragraph 8 I will read it Beginning in 1972 pursuant to OSHA regulations Kaiser Gypsum placed a caution label on all of its containing products The caution label as prescribebdy OSHA read Caution Contains asbestos fiber Avoid creating dust Breathing asbestos dust may cause serious bodily harm Did I read that correctly sir A. Yes Q. Do you have any reason to believe that Mr. Madseins lying or is incorrect in the statementhse has made in paragraph ? MR FERNANDEZ I'm going to object Counsel You're asking my client to pass judgment on the veracity of Mr. Madsen I think that's an improper question It will not be allowed at trial On that basis I'm going to instruct my client not to answer MR PETTY Q. Are you going to follow the Aiken & Welch Court Reporters 94 continuing instruction of your attorney A. Yes Q. You realize this may necessitate a further deposition of you MR FERNANDEZ Counsel if you have a question to ask my client ask him a question He is not here to seek advice from you he is not here to be threatened by you or to be harassed or badgered by you Ask a question 10 MR PETTY Counsel I think the only harassment 11 is coming from your mouth in this room 12 MR FERNANDEZ That's fine You were just 13 threatening my client with a further deposition and 14 that I think is an unnecessary intimidation It 15 wouldn't be allowed in any court in any jurisdiction 16 in this country certainly not at trial in front of a 17 jury 18 MR PETTY Q. I'm going to read the 10th 19 paragraph and see if we can make it through that one 20 It states In the course of his employment Mr. 21 Crosby was informed by office memoranda of any 22 changes in packaging and labeling specifically in 23 reference to asbestos caution labels 24 Did I read that correctly sir 25 A. You read it correctly Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 95 Q. Let me ask this In the course of your employment with the company over some years did you periodically receive office memoranda on various subjects A. Oh yes Q. Was that a quite common occurrence that mail would be routed to you A. Yes 2 Do you have any recollection as you sit here today of receiving office memoranda that referenced the subject of asbestos in the products or asbestos caution labels A. No I have no recollection MR PETTY I would like to hand the court reporter what will be marked as Kaiser Gypsum No. 4 Document marked Kaiser Gypsum Exhibit No. 4 for Identification MR PETTY Q. Sir I would like to hand you what the court Exhibit No. 4 reporter and I'll has marked as Kaiser Gypsum give you an opportunity however much time you wish to review it MR BERGMAN I'm going to object to the use of this document insofar as it was not produced in prior discovery in response to explicit requests for Aiken & Welch Court Reporters 96 documents such as this nature object on foundational grounds I'm also going to MR PETTY And for the record I would just note there are no discovery requests of any nature in this lawsuit that have been directetdo Kaiser Gypsum MR BERGMAN In the Pickner case there were specific requests for documents falling within the category of that document They were not produced and they were signed under oath by Kaiser Gypsum 10 MR PETTY I would note in this case at the 11 videotaped depositions of Mr. Crum you used exhibits 12 without producing them in advance exhibits that were 13 directly responsive to pending discovery that had been 14 issued by me in this case 15 Q. Have you had an opportunity to review the 16 document that has been marked as Kaiser Gypsum Exhibit 17 No. 4 sir 18 A. Yes an 19 Q. And is that example of the type of . 20 office memorandum that you would often receive . 21 A. Yes 22 Q. Is that a distribution list -- 23 MR FERNANDEZ Let me object that the question 24 as posed is vague Exhibit 4 consists of two pages .25 The first page is not an office memorandum so I Aiken & Welch Court Reporters 97 would ask you to rephrase The question as posed is an inaccurate description of this exhibit MR PETTY And I would ask you to again try to conform your objections to the rules and the requirements that we proceed -- MR FERNANDEZ Counsel I have to tell you what my objection is and ask you to conform what I think is an appropriate way to ask the question | I'm doing That's all 10 But as I say the first page is not an 11 office memorandum 12 MR PETTY You'll have an opportunity to ask -- 13 Mr. Bergman will have all the opportunity to ask 14 questions 15 MR FERNANDEZ It is my job to make sure you 16 ask fair and accurate questions of my client That's 17 what I'm trying to do : 18 MR PETTY Q. Mr. Crosby that document there 19 the first page it is a distribution list is it not | 20 A. Right 21 Q. And was it common for memoranda to be 22 routed with a distribution list like that 23 A. Yes 24 Q. And does the office memorandum 25 itself -- it's dated May 3 1973 correct Up in the Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 98 upper right corner it says May 3 1973 A. huh Q. You have to say yes A. Yes Q. Doesn't that office memorandum state that it was sent to See attached distribution Right up here in the top of the page A. Yes Q. And the distribution list that it was attached to is that the group of people that would receive an office memorandum such as that MR FERNANDEZ Let me just object That calls for a speculation on the part of the witness You can answer -- if you can answer go ahead MR PETTY Q. Do you remember my question sir Does that distribution list look like the kind of a distribution list that would have been used for a memorandum of this type MR FERNANDEZ It also calls for speculation on the part of the witness THE WITNESS Yes MR PETTY Q. And that distribution list sir does it not show your name there under the district sales manager D.F. Crosby A. Yes Aiken & Welch Court Reporters 99 Q. That's you A. Yes Q. Sir when you testified in Seattle earlier this year do you recall testifying that you did not know that Kaiser Gypsum was using asbestos in some of its accessory products A. Yes Q. And do you recall testifying in that deposition about certain alleged conversations with 10 George Kirk and Al Raffgelli when you contend that 11 they expressly denied that Kaiser Gypsum was using 12 asbestos in products 13 MR FERNANDEZ I'm going to object Again 14 Counsel the record will speak for itself You're 15 arguing with the witness I think that's improper 16 He didn't contend anything He made statements based 17 on his memory 18 As the question is phrased it's an inaccurate 19 description of his testimony and on that basis I'm 20 going to instruct my client not to answer As 21 phrased it's an unfair question 22 MR PETTY So is your client withdrawing that 23 testimony 24 MR FERNANDEZ My client is not doing anything 25 My client is waiting for you to ask him a proper Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 100 question MR PETTY And I have done so and you've instructed him not to | MR FERNANDEZ answer That's correct MR PETTY 2. Are you going to continue to adhere to the instructions of your attorney A. Yes Q. Now from Kaiser Gypsum Exhibit No. 4 can you tell us first sir who was the author MR FERNANDEZ Let me just -- I'm going to object client It calls for speculation on the part of my . If you're asking him who the author is based on what this says on the document this document is hearsay There is no foundation for this document So if you're just asking him to read what's on this document you can do that as well as I can and the jury can do it as well as any of us can As posed the question lacks foundation It's argumentative MR PETTY We will recess the deposition at this time and entertain Judge Schindler For the record this is Ken Petty We are going to recess the deposition take whatever time is necessary to reach Judge Schindler to resolve the Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 101 matter relating to Mr. Fernandez appearance and obstructionist tactics here to try to create an unusable record of testimony State whatever you want for the record MR FERNANDEZ This deposition was scheduled for today If you want to call the judge that's fine but my client is prepared to testify today His time is valuable to him and to us And so if you want to try to get ahold of the judge feel free but if you adjourn this deposition today you do so at your own risk and my client will not have to return We're here ready to give testimony and to answer proper questions | MR PETTY Go off the record THE VIDEOGRAPHER It is 10:38 a.m. We are now off the record Recess taken THE VIDEOGRAPHER on the record It is 11:21 a.m. We are back Counsel you may continue MR PETTY Thank you " Q. Mr. Crosby again I've handed you what's been marked as Kaiser Gypsum Exhibit No. 4 and I would ask you to take a look at the second page Can you tell us who sent that memorandum that Aiken & Welch Court Reporters 102 office memorandum to you and others at Kaiser Gypsum A. It indicates it is from R.A. Madsen Q. And who would that be A. Dick Madsen Q. Is that the same Dick Madsen we've been talking about here today A. Yes Q. Now when an office memorandum such 10 as this was routed to you did you make a practice of 11 reading it 12 A. Yes 13 Q. Now from this particular office 14 memorandum if we were to look at the subject of it 15 it discusses two products dual purpose joint compound 16 and topping compound 17 Do you see that sir 18 A. Yes . 19 Q. And it states below it says The above 20 packaging carries approved caution as prescribed by 21 federal regulations relating products containing 22 asbestos fibers 23 Did I read that correct 24 A. Yes 25 Q. Would that have alerted you to the fact Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 103 that those twoproducts referenced in the office memorandum contained asbestos sir MR FERNANDEZ If he received and read the document THE WITNESS Yes MR BERGMAN Speculation Foundation MR PETTY Q. Did you answer that sir A. Yes Q. And your answer was Your answer was yes A. Yes Q. And from your review of that sentence that | I just read would that have told you assuming that you received and read this in 1973 that those products the packaging for those products contained a caution label MR BERGMAN Objection Foundation Speculation THE WITNESS No. The MR PETTY sentence that Q. And why do you say that sir reads The above packing carries approved caution as prescribed by federal regulations relating to products containing asbestos fiber what is it about that sentence that would not have alerted you to the fact that there was a caution label on such Aiken & Welch Court Reporters 104 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 products A. Well it states that there is a caution label but I do not remember seeing it Q. Sir the one product there is dual purpose joint compound A. Right : Q. And it says Premixed gallon plastic or metal pail A. huh Q. Does it state a black pail A. Yes Q. And does it state with white printing A. Yes Q. Sir I would like to hand you what has been markeads Kaiser Gypsum Exhibit No. 11 and I would like to first hold it up since it is not one that can accompany the record Can the videographer zoom in and get a picture of the front of this . exhibit MR BERGMAN I would like to interpose a foundational objection as to the use of this exhibit and ask for a standing objection throughout your questioning of that exhibit MR PETTY That's on the objection that you -- lodged that we did not produce the discovery Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 105 MR BERGMAN No. It is a foundational objection MR PETTY This is not an authentic MR BERGMAN Correct MR PETTY Turn it around to the backside The video may need to zoom it Please let me know if you cannot pick this up We may have to come closer to you THE VIDEOGRAPHER I have it It is a little tilted Bucket marked Kaiser Gypsum Exhibit No. 11 for Identification MR PETTY Q. Sir I'm going to hand you -- maybe we could set it because I don't want to put it in front of you We won't see you on the video The pail that's been marked as Kaiser Gypsum Exhibit No. 11 is that the kind of a pail that Kaiser Gypsum premix dual purpose joint compound was packaged in h A. Yes Q. Is that the kind of a pail of a product that you and the men under you sold to customers A. Yes Q. And I'd ask you to turn and look at the back Do you see is there any kind of an asbestos warning label on that package there that pail Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 106 MR BERGMAN Same objection MR FERNANDEZ Let me just interpose an objection to the extent that you're using the term warning you might want to define that term word is not on the label That THE WITNESS I might ask When was this can produced with this labeling MR PETTY Q. Let me ask you though sir That's a question someone else may need to answer Looking at that particular pail that appears to be the type of a pail with the kind of labeling at least on the front side that you recall the company using A. Yes Q. And they used it for that particular product correct A. Yes Q. Now the back that you caution label was there not . A. Yes read a there was Q. And can caution label says you read for | the record what that A. It says Caution Contains asbestos fibers Avoid creating dust Breathing asbestos dust may cause serious bodily harm Q. And is that the exact same wording the Aiken & Welch Court Reporters 107 exact same caution label that your friend Dick Madsen stated was on the products A. This memo does yes Q. Does your opportunity to look at a pail from that particular product refresh your recollection as to whether or not there may have been caution labels on Kaiser Gypsum products at some point in the past A. Well my deposition was based on a period 10 of 1970s -- 1970. Not 1973 11 It might also state that if this was on all of 12 our pails why would customers come to our salesmen -- 13 come to me and ask Do you have asbestos in your 14 product if it is stated on the can 15 But we did receive many many requests did we 16 have asbestos in our product 17 MS FRIEDEL Move to strike as nonresponsive 18 MR PETTY I would join in that objection 19 Q. Sir what I asked you was whether your 20 opportunity to review that pail refreshed your 21 recollection as to whether or not at some point in the 22 past there were cautions on the packaging 23 A. No it doesn't 24 Q. Now you said your prior testimony was 25 referencing a period 1970 but I would like to read to Na Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 108 you and your attorney can read along at the top of page 56 of your deposition Mr. Bergman asked you Mr. Crosby between 1972 and 1978 were you aware of any warnings on the containers of Kaiser Gypsum asbestos products that breathing asbestos could cause asbestosis Do you remember him asking you questions about later time periods like 1972 to 1978 A. Yes Q. And are you stating that despite looking at that pail that you do not believe that there were warning labels caution labels on the products in that time frame A. Not to my recollection Again I don't know when that can was produced in that manner Document marked Kaiser Gypsum Exhibit No. 5 for Identification MR PETTY Q. Let me hand you another document hand you what's been marked as Kaiser Gypsum Exhibit No. to I would ask you take a moment to review it A. Okay Q. You've had an opportunittyo review Kaiser Gypsum Exhibit No. 5 have you not Aiken & Welch Court Reporters 109 10 11 12 13 14 15 16 1.7 18 19 20 21 22 23 24 25 A. Yes Q. Let me ask you Does the first page appear to be a copy of a little notepad memorandum that was sent by Dick Madsen to a Syd Henderson A. It appears to Q. Who is Syd Henderson A. I don't know Q. Does that appear to be Dick's signature where it says Dick Does that look like his writing A. Yes Q. The second page of Exhibit 5 does that appear to be a copy of an office memorandum dated May 17 1973 sent by Dick Madsen A. Yes Q. And the various individuals that are listed at the top as receiving it Mr. Caprye Cassidy Flannigan Hardy and it goes on with six more names do you recall were those individuals involved in the production side at different Kaiser | Gypsum plants A. Yes Q. And the people that were copied on the memorandum there Mr. Blewett Mr. Crawl Mr. Dupuis Mr. Franklin and the others were those people that Aiken & Welch Court Reporters 110 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were in Kaiser Gypsum management here across the street at the Kaiser Center A. Yes Q. So in your reading this memorandum isn't it true that Dick Madsen was telling the plant managers as well as senior management that this caution label must appear on all Kaiser Gypsum Company bags cartons containers which contain products . formulated with asbestos fiber A. Yes MR BERGMAN Objection | Speculation Foundation MR PETTY Q. Now sir you gained a great understanding as to how the company was run over the years did you not A. Yes 0 Now if Dick Madsen directed the various plant managers and those involved in the production of the products to be sure that asbestos caution labels were on the packages of containing products do you have any reason to believe that any of those individuals would have disregarded his instruction MR BERGMAN Calls for speculation MR FERNANDEZ Calls for speculation by the witness Lacks foundation as to whether anyone Aiken & Welch Court Reporters 111 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 received this document MR PETTY Q. Do you recall my question sir A. No. Q. From knowing the way the company did business and the way that people worked together do you have any reason to believe that the plant managers who received this directive from Dick Madsen would have disregarded his instruction .A No. Q. In fact that would not be the way that the people at the company would have worked They would have gone ahead and done what they were instructed to do correct A. Correct MR BERGMAN Same objections Document marked Kaiser Gypsum Exhibit No. 6 for MR PETTY Identification I would like to next hand you what's been marked as Kaiser Gypsum Exhibit No. . you a moment to study that 6 and give Q. Sir from your review of Kaiser Gypsum Exhibit No. 6 and I apologize that it is not a more legible copy but can you tell me does that appear to be a page letter signed by your friend Dick Aiken & Welch Court Reporters 112 Madsen A. Yes Q. And does that appear to be on official company letterhead that would have been used back in June of 1973 A. Yes | Q. And from your review of Exhibit 6 does it appear that Mr. Madsen was writing to a company that | supplied containers for some of the Kaiser Gypsum 10 product 11 MR FERNANDEZ Calls for speculation on the 12 part of the witness 13 MR PETTY If he doesn't know he can state 14 that 15 MR FERNANDEZ Let me also object The 16 question as posed vague 17 Are you asking him whether he knows what Bennett 18 Industries is or are you asking for his 19 characterization of this letter as looking like it's 20 going to that type of a company 21 As posed I think the question is vague and I 22 would ask you to rephrase so we have a clear record 23 MR PETTY Q. Sir do you understand the 24 nature of my question 25 A. Yes Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 113 Q. And from your reading of this letter does it appear that Mr. Madsen was writing to a company that supplied containers or packagifnogr Kaiser Gypsum products MR FERNANDEZ Same objections THE WITNESS I don't know Jack Sullivan Could be MR PETTY Q. In any event does it appear that Dick Madsen was conveying instructions for the way a container was to be printed MR BERGMAN for itself Objection The document speaks THE WITNESS Yes MR PETTY Q. And his item numbered No. 3 it states does it not That the asbestos caution must be printed as shown on the container Do you see that sir A. Yes Q. Now do you have any reason to believe from your understanding of the way business is run do you have any reason to believe that if one of Kaiser Gypsum's supplier of containers received a directive from Dick Madsen that they would have disregarded it MR BERGMAN Objection Calls for speculation MR FERNANDEZ Lacks foundation Aiken & Welch Court Reporters 114 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS Basically no MR PETTY Q. Let me just ask you as a general proposition if you were dealing with a supplier for Kaiser Gypsum and they didn't do what you asked wouldn't you just go find another supplier A. Yes Document marked Kaiser Gypsum Exhibit No. 7 for Identification MR PETTY Q. I would like to hand you another exhibit that has been markeads Kaiser Gypsum Exhibit No. 6 -- excuse me Exhibit No. 7 and ask you ~- it's a few more pages so it may take you a few minutes to study it A. Okay Q. Having had an opportunity to review Exhibit 7 does the second page sir appear to be a copy of another office ey, memorandum sent by Dick Madsen A. It appears to be Q. Can you tell me the nature of the people he sent his memorandum to What would their jobs or function have been with the company Are these people in production A. Yes Aiken & Welch Court Reporters| 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 115 2 And the subject of this office memorandum that's been marked as Exhibit 7 sir is pound packages of premixed joint and topping compound labeling for it is that correct sir A. Yes Q. And from this office memorandum sent by Dick Madsen on August 7 1975 doesn't it appear to you that the production of these pails and cartons at that time had asbestos warning labelosn them A. In 1975 yes Q. And does it not also appear that the company -- Dick Madsen and others at the company were preparing to begin production of nonasbestos formulations of those same products MR FERNANDEZ Objection MR BERGMAN Objection Foundation Formulation MR FERNANDEZ back please May I hear that question read . MR read Record . FERNANDEZ I'm going to object that the document does speak for itself and asking the client to speculate MR PETTY Q. Do you recall the nature of my question sir Aiken & Welch Court Reporters 116 A. No. Q. The sentence there the middle of the second page that I will read The new labels are to be placed over the asbestos warning label printed on the containers when production at your plant shifts to the nonasbestos product formulation Did I read that correctly A. Yes 2 Does that indicate at least to the 10 recipients of that letter that the company at that 11 time in 1975 was preparing to roll out nonasbestos 12 formulations for those products 13 MR BERGMAN Same objections - 14 MR FERNANDEZ Same objections 15 THE WITNESS Yes 16 MR PETTY Q. Now from reading these 17 documents the additional exhibits we've looked at 18 does this refresh your recollection as to whether in 19 fact there may have been caution labels on the Kaiser 20 Gypsum containing products at least from 1973 21 through August 1975 the date of this memorandum 22 A. Well the memorandum does so indicate 23 but again my deposition was referenced to 1970 24 Q. So let me see if I understand what you're 25 saying It's your recollection that there were not Aiken & Welch Court Reporters 117 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 warnings on the products in 1970 but you believe that at some later time there was a period when warnings did appear on the products or caution labels did appear on the products am I correct A. Yes Q. Now we've been talking quite a bit so far this morning about your friend from Kaiser Gypsum Dick Madsen and I'd like to change now and ask you about someone else you mentioned in your January 1999 testimony That is an individual named George Kirk Do you remember George Kirk A. Definitely Q. Did you become friends with George Kirk during the years you two worked at Kaiser Gypsum A. Yes Q. Did you come to learn that he was employed at Kaiser Gypsum even before you joined the company A. Yes Q. And in fact did you come to learn that he was employed back when the company started in 1952 A. Yes Q. And was he there at the company through at least the 1970s when you were there A. Yes Q. And from your interactions with Mr. Kirk Aiken & Welch Court Reporters 118 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did you come to understand that at least over the years that you were there his position with the company was the director of research A. Yes Q. And was in essence the head of the research and development group A. Yes Q. Now isn't it true that George Kirk's responsibilities in that position would have included being intimately familiar with Kaiser Gypsum's products and the ingredients that were used to formulate those products A. Yes Q. Wasn't the nature of his job to keep seeing if they would adjust the formulation and make it a little bit better so the customers would be more pleased with it A. Yes Q. And from what you know of his responsibilities and his position with Kaiser Gypsum isn't it true that he would have been in the best position to know whether or not asbestos was an ingredient in a particular product A. Yes Q. Now isn't it true that he would have far Aiken & Welch Court Reporters 119 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 greater knowledge of the product formulas and ingredients than would you or any salesman working under you A. Yes Q. And can you think of any reason why George Kirk would lie about his direct responsibilities and experiences at Kaiser Gypsum A. None Q. Now do you recall giving testimony at your January 1999 Seattle deposition about a conversation you had with Mr. Kirk where he denied that there was any asbestos in Kaiser Gypsum accessory products A. Yes I remember Q. Can you think of any reason why George Kirk would not have wanted Kaiser Gypsum's salesmen to know that there was asbestos in the products A. No I cannot Document marked Kaiser Gypsum Exhibit No. 8 for Identification MR PETTY Q. In fact I'm going to hand you what's been marked as Kaiser Gypsum Exhibit No. 8 and ask you to study that A. Okay Aiken & Welch Court Reporters 120 Q. Sir have you had an adequate opportunity to carefully and completely review the document marked as Kaiser Gypsum Exhibit No. ? A. Yes | Q. And from your review of that exhibit does this again appear to be at least the first page of a copy of another office memorandum A. Yes Q. And this one was sent by G.B. Kirk That 10 would be George Kirk correct 11 A. Yes 12 Q. The date of that office memorandum 13 is June 27 1973 correct 14 A. Yes 15 Q. Now if I could direct your attention to 16 the third paragraph -- first what was the subject of 17 it It is Asbestos in all capitals and underlined 18 on the first page Right Do you see that sir the . 19 subject of the memorandum 20 A. Yes 21 Q. If I could direct your attention to the 22 third paragraph it states In order to clarify the 23 facts concerning the OSHA and EPA regulations 24 concerning asbestos the attached draft has been 25 prepared as a proposed merchandising bulletin This Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 121 would disseminate the information to our sales personnel and would be available through our salespeople to contractors Did I read that correctly sir A. Yes Q. And in fact were merchandising bulletins a publication that was available to the salesmen MR BERGMAN Are you talking in general MR PETTY Talking in general Q. A merchandising bulletin is that the type of document that the salesmen would receive to provide information about the products A. No. Q. What was a merchandising bulletin from your experience with the company A. A merchandising bulletin was not sent in general to the salesmen They were sent to the sales managers Q. who disseminated And who would it down to the salespeople the sales managers be People like you A. Right Q. And would it be people working under you like John Crum. A. Well it would be discussed probably at a district sales meeting Aiken & Welch Court Reporters 122 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. So if I understand correctly a merchandising bulletin would come to a middle level management sales manager like you and when you got together with your men like Mr. Crum you would share that information with them if necessary pull out the bulletin and read it with them A. Right Q. From your reading of that paragraph that I read out loud does it appear to you that Mr. Kirk wanted to share information about asbestos to the sales managers like you and thereafter to the salesmen and the customers MR FERNANDEZ Let me object It calls for speculation on the part of the witness in that you're asking whether he knows whether Mr. Kirk wanted to do something desired to do something so I object on the basis of vagueness as to the term wanted MR PETTY Q. Do you understand my question . BD1 sir A. Yes Q. This sentence there This merchandising bulletin would disseminate the information to our sales personnel and would be available through our salespeople to contractors Does that not indicate to you that George Kirk Aiken & Welch Court Reporters 123 10' 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wanted this information to go to you the salesmen and the customers MR BERGMAN Mischaracterizes the document MR FERNANDEZ | Counsel MR PETTY Q. This document speaks for itself Did you understand my question sir Isn't that true A. . Q. Yes want to turn to the subject of your January 1999 deposition testimony the conversation that you told us about where you asked Mr. Kirk about whether asbestos was in accessory products and you testified that he said there was none Do you remember that testimony A. Yes Q. Now if George Kirk were to review that testimony you gave and if he were to swear under oath that he would not have lied to you about that issue would you sit here and call him a liar A. No. MR FERNANDEZ Wait a minute Objection Calls for speculation on the part of the witness It assumes facts not in evidence And my client is not here and hasn't accused anyone of anything In his earlier deposition he did not accuse anyone of Aiken & Welch Court Reporters 124 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anything So as phrased I think that question is unfair and I would ask that the question and the answer be struck Document marked Kaiser Gypsum Exhibit No. 9 for Identification MR PETTY Q. Sir I'm going to hand you what's been marked as Kaiser Gypsum Exhibit No. 9 and ask you to take a few moments whatever you wish to review that document MR FERNANDEZ Is there a question pending MR PETTY No. I'm giving your client an opportunity to fully review that document MR FERNANDEZ May I have the last question read back last question and answer Record read MR objection FERNANDEZ Let me just raise based on the fact that at the a belated time that the question and answer I did not have this were given that was affidavit of George just read Kirk and back as I read this affidavit nowhere does he state that either my client lied or that he would not have lied to my client That statement does not appear anywhere in this document Aiken & Welch Court Reporters 125 So I renew my objection being an unfair question based on facts not in evidence and asking my client to speculate who the -- pass judgment of somebody else's testimony which is not a proper subject for discovery deposition MR PETTY My response will be reserved for the judge Q. Sir have you now had an opportunity to carefully and completely review the document that's 10 been marked as Kaiser Gypsum Exhibit No. ? 11 A. Yes 12 MR BERGMAN I'm going to have a standing 13 hearsay objection to the use of this exhibit 14 Was that yes 15 MR PETTY That's fine You can have that 16 Q. Let me ask you this Mr. Crosby The 17 document marked as Kaiser Gypsum Exhibit No. 9 does 18 it appear to be a copy of a sworn affidavit signed by fil 19 George Kirk 20 A. Yes 21 Q. Have you ever seen that affidavit before 22 today 23 A. No. 24 Q. So is it fair to state that when you 25 testified in Seattle in January of this year you did Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 126 not have the benefit of this affidavit from Mr. Kirk to consider correct MR FERNANDEZ Well let me just object to your characterization as this declaration being of some benefit You can answer the question if you want but benefit is your characterization not my client's MR PETTY I think again we're reverting back to the improper speaking statements on the record and I would ask for you to refrain MR FERNANDEZ It also assumes facts not in evidence He hasn't said it was a benefit MR PETTY He hasn't said it wasn't MR FERNANDEZ No. I said you are characterizing this document MR PETTY Please I thought we had an understanding that you now knew the scope of proper objections and speaking objections and instructions to . : your client -- this MR help FERNANDEZ All you to recall you have You can to ask him Does ask a nice clean question or you can editorialize and ask an improper question MR PETTY Q. Do you remember my question A. No. Aiken & Welch Court Reporters 127 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. The document marked as Exhibit No. 9 you did not have that information available to you that document available to you when you testified in Seattle in January of this year did you sir A. No. This thing was written in 1999 Q. It was written after your deposition as a result of some testimony you gave correct A. 11th of March of 1999 Q. I'm going to ask you to consider some of the sworn testimony provided by Mr. Kirk in his affidavit marked as Exhibit 9 The first paragraph sir and read along with me to make sure that I don't mischaracterize it states I was employed with Kaiser Gypsum Company Inc. hereinafter Kaiser Gypsum since its inception in 1952 through 1974. In 1958 I became director of research for Kaiser Gypsum and held that position through | 1974. Did I read that correctly A. Yes Q. Is that information as referred to by Mr. Kirk true and correct to your knowledge MR FERNANDEZ Let me just object for speculation on the part of my client It calls He wasn't there in '58 Aiken & Welch Court Reporters 128 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR PETTY Q. Did you answer that question Do you have any reason to believe that any of that information is incorrect A. No. Q. Now I would like to direct your attention to the third paragraph It states As director of research I am familiar with Kaiser Gypsum's product line and the components which were used to formulate each product Did I read that correctly A. Yes Q. And I take it you would agree with Mr. Kirk's testimony in that paragraph | A. Yes Q. Then if I were to turn your attention to the fourth paragraph this is the one where he recites the testimony that you gave about the conversation in 1970 A. huh Q. Correct A. Yes Q. And we've talked about that conversation a couple of times here earlier today correct A. Yes Q. And if you look at paragraph No. 5 and Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 129 I'll read it for you I do not recall that Mr. Crosby ever asked me in 1970 whether or not any of Kaiser Gypsum's products contained asbestos Had he asked me that question in 1970 I would have truthfully responded that Kaiser Gypsum's accessory products contained asbestos as an ingredient Did I correctly read his sworn testimony MR BERGMAN object to the term testimony THE WITNESS Yes MR PETTY Q. Now from your reading of paragraph 5 does it appear that he does not have the recollection of the conversation that you have a recollection of occurring in 1970 A. It appears Q. I want to ask you this sir Is it perhaps possible that if you in fact accurately recall conversations with people at Kaiser Gypsum where they denied the presence of asbestos in the products is it perhaps possible that those conversations may have occurred five or six years later after George Kirk had changed the formulations to remove asbestos A. No. MR FERNANDEZ Let me just object It calls for speculation on the part of the witness It Aiken & Welch Court Reporters 130 10 11 12 13 14 15 16 17 18 19 .20 21 22 23 24 25 assumes facts not in evidence MR PETTY Q. It's not possible A. That's right Q. And why is that not possible sir that that conversation may have occurred five to six years later when there no longer was asbestos in the products A. Well the question that was broached to sales personnel and middle management was strong in about 1970 Q. Why is it that you can date this to 1970 A. Well I had transferred back to the Kaiser Center in 1970 and that's when the question was rampanatt that time and my meeting -- my discussion with Mr. Kirk was not in a meeting formally It was a question that was asked possibly on the floor of the 25th floor or in the elevator or in the parking lot It was was an a question that opportunity for had been bothering me and this me to talk to George who I have tremendous respect for Q. Let me ask you this sir So it's the fact that the conversation occurred at the Kaiser Center that you find somewhat helpful in dating it correct A. Right Aiken & Welch Court Reporters 131 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And you returned to the Kaiser Center in 1970 A. Right Q. How long did you remain at the Kaiser Center while employed by the company From 1970 -- A. Until 1974 when the company was dissolved and taken over by Domtar Q. Is it your recollection that that occurred in | 1974 A. Q. April of 1974 So the conversation that you had with Mr. Kirk was sometime -- A. Excuse me Possibly it was 1978 Q. It's kind of hard to remember details on dates that far back correct sir A. Yes Q. The conversation occurred at the Kaiser Center so you know it occurred sometime between the time when you were transferred back there in 1970 and the time the company was dissolved and acquired by Domtar whenever that happened correct A. Well specifically I would state that it was in 1970 Q. And that's simply because you know that you were back at the Kaiser Center and you believe it Aiken & Welch Court Reporters 132 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was 1970 or so when people were asking you questions about asbestos A. Yes It started in '68 '69 and '70 Q. Let me direct your attention to the sixth paragraph of Mr. Kirk's affidavit marked as Exhibit 9 and I'll read it Kaiser Gypsum always had an door policy and encouraged its employees such as Mr. Crosby to tour its facilities Did I read that sentence correctly A. Yes Q. And is that a true statement A. Yes Q. And then that paragraph goes on to state I specifically recall Brent Crosby touring the Antioch manufacturing with Kaiser Gypsum customers Did I read that correctly , A. Yes Q. And was that a true statement tour the Antioch facility with customers Did you A. Yes what we call plant tours Q. Was that a common occurrence It wasn't something you did once or twice in your career A. Oh no it was practically monthly Aiken & Welch Court Reporters ange? 133 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. He goes on to state in paragraph 6 At the time that Mr. Crosby took these tours pallets with sacks labeled asbestos would have been visibly present and could have been seen by Mr. Crosby during the | plant tours Did I read that sentence correctly A. Yes Q. Is it true that the various constituents used to formulate the products would have been there set out in the open waiting to be put together to make the products MR FERNANDEZ Calls for speculation If you have a memory of that should not speculate go ahead and answer but you If you don't know you should say you don't know MR PETTY Q. I'm just asking you Going through the manufacturing plant were the various components used to make the product there sitting out . di in the open A. Yes Q. So if you were on a tour you have would have been able to see to the extent there was labeling on the components just what there was there correct MR BERGMAN Objection Speculation THE WITNESS Possibly Aiken & Welch Court Reporters 134 MR PETTY Q. Now I would like to read the seventh paragraph that says Likewise I recall Mr. Crosby visiting the research and development lab at Antioch where asbestos was kept in clearly labeled containers Did I accurately read that paragraph A. Yes Q. And is that a true statement Did you from time to time visit the research and development 10 lab in Antioch 11 A. Yes 12 Q. Do you recall there being asbestos there 13 that was stored in clearly labeled containers 14 A. No. 15 Q. Do you recall anything about different 16 components or chemicals or whatever it was being 17 stored there in containers 18 A. No. 19 Q. So you don't recall anything about any 20 constituents of the products that may have been stored 21 there 22 A. No. 23 Q. Now I'd like to direct your attention to 24 paragraph 9. He states Brent Crosby's job title did 25 not necessarily involve him in the management decision Aiken & Welch Court Reporters oo 135 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 regarding product formulations and caution labels Is that a true statement A. Yes Q. And he goes on to state Therefore he would not have had personal knowledge of any company decisions regarding product formulations and caution labels I think you agreed to that earlier did you not A. Right MR PETTY If I could just raise the issue I don't know about break I would probably have another half hour or 45 minutes Is now is a good time for a break Or if you want to plug on and you know how these things go it could be an hour MR BERGMAN I have some too MR PETTY Do you want to take a lunch break now and come back in 45 minutes or something MR FERNANDEZ Is that okay with you THE WITNESS Yes that's fine MR PETTY On the videotape here we are now going to go off the record so the witness and counsel can have a lunch break THE VIDEOGRAPHER This ends videotape No. 2 in the deposition of Brentwood Crosby It is 12:32 p.m. We are now off the record Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 136 Lunch break taken THE VIDEOGRAPHER This begins videotape No.3 in the deposition of Brentwood Crosby It is 1:38 p.m. We are back on the record Counsel you may continue MR PETTY Thank you Q. Mr. Crosby did you have a nice lunch A. Yes Q. Good Before I move on I want to ask just a few more questions to try to help us date the conversations that we talked about that you had with George Kirk And one thing we know is that it occurred after you got transferred back to the Kaiser Center correct A. Right Q. And when the conversation occurred was your position district sales manager A. Yes Q. Let me ask you a few other things Did you start with the company on February 1 / 1960 A. Yes Q. And was your last date with the company April 1 1978 A. April 3rd I think Aiken & Welch Court Reporters 137 c eucait Q. And when you started with the company Was your first position in technical sales Was that your title A. Right Q. Did you gradually progress through the years A. . Yes Q. Did the progression lead you to become a line salesman and then a salesman and then a 10 technical representative 11 A. No. was a tech rep first 12 Q. And then you were a line salesman 13 A. Then I had a territory right 14 Q. And then ultimately you worked up to a 15 position as an area sales manager 16 A. Right 17 Q. . And then ultimateyloyu then were promoted 18 to become a district manager 19 A. Right 20 Q. District sales manager 21 A. 1965 22 Q. What I want to turn to next is when Mr. 23 Bergman was asking you questions in Seattle in January 24 of 1999 earlier this year do you recall him asking 25 you some questions about a Bob Costa Aiken & Welch Court Reporters 138 Levee A. Yes Q. And Mr. Costa he was an upper level management person at Kaiser correct A. Vice president and general manager right Q. And do you recall testifying at page 58 of your deposition that you were unaware of any discussions among Kaiser Gypsum senior management that warnings needed to be placed on containing products 10 A. That's right 11 Document marked Kaiser Gypsum 12 Exhibit No. 10 for 13 Identification 14 MR PETTY Q. I would like to hand you what 15 has been marked as Kaiser Gypsum Exhibit No. 10 and 16 ask you to take a moment to study that 17 MR BERGMAN Which number is this 18 MR PETTY This is Kaiser Gypsum Exhibit No. 19 10 20 21 22 23 24 25 MR BERGMAN The exhibit refers to an attached document Is that one that was intended to be given to the witness as well MR PETTY I do not have the attached document At the time this document was located apparently the attached document was not with it I don't know that Aiken & Welch Court Reporters 139 for a fact but at least the document I received is what we're looking at THE WITNESS Okay MR PETTY Q. Have you had an opportunity to review Kaiser Gypsum Exhibit No. 10 sir A. Yes Q. Does it appear to be a letter sent by Mr. Robert Costa vice president and general manager A. It appears to be yeah 10 Q. The date is April 5 1974 11 A. Yes 12 Q. Does it appear to be printed on the Kaiser 13 Gypsum letterhead that was being used at that time | 14 A. Yes 15 Q. And if you'll look at the person to which 16 Mr. Costa directed his letter he's identified as the 17 executive vice president of the Gypsum Association 18 Do you know what the Gypsum Association was : 19 A. Yes 20 Q. Was that the trade organization for 21 companies that made products like Kaiser Gypsum made 22 A. Right 23 Q. Products that used gypsum in them ... A. huh 25 aeXS a Q. Now from your revieowf Kaiser Gypsum Aiken & Welch Court Reporters 140 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Exhibit No. 10 isn't it apparent that Mr. Costa - was telling the Gypsum Association that it was Kaiser Gypsum's position that the companies in the industry should be labeling joint compounds containing asbestos in strict accordance with OSHA regulations MR BERGMAN Objection Foundation MR FERNANDEZ Assumes facts not in evidence that this letter is an authentic letter My client has no information as to that effect If you want to preface your question assuming -- MR PETTY You can consider it so prefaced MR FERNANDEZ Do you understand the question Assuming this is an accurate letter from Kaiser Gypsum THE WITNESS Not signed MR FERNANDEZ What are you asking him about it MR PETTY I'm asking him if his review of the letter provides him information as to what the position of the company was with respect to putting labels on containing joint compound THE WITNESS Yes MR PETTY Q. And what was the company's position at least in April of 1974 MR BERGMAN Objection Foundation The Aiken & Welch Court Reporters C C ence correctly in th C C C on is that we should lab asbestos in strict accoi ; and are doing so on oui I read that FERNANDEZ sentence cori I'll stipulat | ice correctly Counsel VITNESS Are you referri PETTY Paragraph 2 in th WITNESS Yes PETTY Q. Would you | agi this letter it does appea ic level management had a s and taken a position or BERGMAN Objection 2 Vague and ambiguous FERNANDEZ Also it's ar PETTY Can you repeat th ur objections stated so t ar the question and provi e on WITNESS Repeat the ques PETTY She's going to do Aiken & Welch Court Red 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 document speaks for itself MR FERNANDEZ And calls fo part of the witness itself The document MR PETTY Q. You're getti the objections aren't you sir A. Well and your questio Q. I'll try to clarify my can't control the objections From this letter -- MR FERNANDEZ You can cont Counsel by asking good questions MR PETTY I would ask you Counsel I thought we were doing MR FERNANDEZ I thought we you want to editorialize I can dc MR PETTY Here you are aga MR FERNANDEZ What's good good for the gander MR PETTY Well I'm not 100 gander ... MR FERNANDEZ Maybe you st MR PETTY You do in the S1 MR FERNANDEZ MR PETTY Q. Well you're Let me ask Aiken & Welch Court R 143 MR FERNANDEZ I'll interpose a further objection As posed the question is unfair because the paragraph you're asking him about -- MR PETTY Is this an objection as to form MR FERNANDEZ It lacks foundation that this document is an incomplete document There is an attachment that goes with this document The paragraph that talks about supposedly what the company's policy is references a specific document 10 that has details supporting some position that is 11 relevant to your question 12 My client has not been provided with that 13 document So as posed that question is very unfair 14 You're asking him to give his opinion about what was 15 in somebody's mind baseodn an incomplete letter and 16 that's unfair 17 MR PETTY Are you going to instruct him not to 18 answer or may we now proceed with what we've been 19 trying to proceed with which is the deposition of 20 your client 21 MR FERNANDEZ I made my objection Counsel 22 Record read 23 THE WITNESS Yes you read it correctly 24 MR PETTY Q. Let me move on to another 25 subject sir And we can put that exhibit down for a Aiken & Welch Court Reporters trips or did you a trips ~ cae They would usually So on some of thes me to Reno every four > the times when you mi 1 one of his homes that ? Right And did you - you im after work on every ? No. .-~ It was just on son opened to work in with Right -~ you would go of ow when you went to V. d be doing something of re specifically to help ction or just to have hing Social And so you did no p him pound nails No. Aiken & Welch Cou moment When you gave testimony in Janu you talked to us about occasions wher Mr. John Crum after work hours at Son that he was building in Nevada the I correct A. Yes Q. Let me see if I understar that you would make these visits to t 10 were you there on company business ba 11 A. Yes 12 Q. And so from time to time 13 that area and call on John Crum or d 14 that area on behalf of the company ( 15 A. . Right 16 Q. About how frequently woul 17 A. Every month or month and 18 Q. So every four to six weel 19 yourself in John Crum's backyard so 20 correct 21 A. Well in his territory 22 Q. And at the time you were 23 California correct 24 A. Sacramento right 25 Q. And on those occasions Aiken & Welch Court Repo 146 Q. Or saw lumber or do anything A. No. Q. Now Mr. Crum we talked to him we took some testimony from him at his home last year and he testified that in building a typical house he handled nearly everything from the ground breaking right up to the finish work and that the entire process usually took him one to two years Was that consistent with your observations of 10 his home construction 11 A. Yes 12 Q. And Mr. Crum testified that out of that 13 process of one to two years of building a home the 14 hanging and the taping of the wallboard typically took 15 only two or three weeks out of that time frame Is 16 that consistent with your knowledge of home 17 construction and the way he did it 18 A. Yes 19 Q. Now I take it if you happened to be in 20 Reno on Kaiser Gypsum business and it was one of 21 those occasions where you went to visit him and 22 socialize after hours I would take it that on most of 23 those visits he wouldn't actually be in the active 24 phase of the work doing the drywall work correct 25 A. Correct Aiken & Welch Court Reporters 147 Q. Do you remember any particular instance when you were there when he was actually doing the drywall work A. Yes Q. Can you pinpoint that to any of the particular homes Do you remember the addresses any characteristics about the home A. Well they were in Washoe Valley The community was called Washoe Lake area which is 10 halfway between Reno and Carson City 11 Q. Now from the testimony we took from Mr. 12 Crum I understood that he built these homes for the 13 last couple of decades right up through 1998 in 14 fact is that your understanding 15 A. Yes 16 Q. And when you and he were both working for 17 Domtar did you continue to go visit him in the Reno 18 area 19 A. Yes 20 21 22 23 24 25 aEe Q. So is it fair to assume that some of these occasions where you went to visit him at the house -- at the houses he was building were times when you were both employed by Domtar A. Right Q. And some of them were occasions were when Aiken & Welch Court Reporters 148 you were both employed by Kaiser Gypsum A. Right Q. On the occasions that you recall to go visit him when he was in the active drywall phase of the construction do you recall if you were Kaiser Gypsum couple of guys or if you were both Domtar guys at that point A. Both Q. So you recall visiting him when he was 10 11 doing - when he was at the drywall phase of the work when you were both at Kaiser Gypsum and you also 12 recall visiting him when he was doing that kind of 13 work when you were both employed by Domtar 14 A Well when you would call a visitation 15 what would happen when I would go to Reno John would 16 pick me up at my hotel or motel and we would travel 17 the day together Usually when I would stop by his 18 place in Washoe Lake was if we were working in the 19 Carson City area or South Lake Tahoe and we were 20 articulating back to my place in Reno 21 Q. So would it be -- what Maybe a couple of 22 times a year that you would go out and visit him on 23 the houses that he was actually building where your 24 itinerary took you through Washoe Valley 25 Ne A. Two or more Aiken & Welch Court Reporters 149 Q. Now are you able to give any further identification or details as to the home - I want to focus now on the time when you were both Kaiser Gypsum employees and you went to visit him at one of these homes that he was building and it happened to be at the time of the drywall work Can you remember how many bedroomosr how many bathrooms or if the home had an attached garage or a detached garage any of those kind of details 10 A. Well they were a minimum of two bedroom 11 and up to four 12 Q. Can you provide any more details beyond 13 that that sort of range of homes And if you can't 14 it's understandable 15 A. No. 16 Q. Okay Let me ask you this At the time 17 that you would have gone to visit him and you went 18 out and called on the customers and then you visited 19 the home while they were doing drywall work would 20 this have been when you were working out of Oakland as | ' 21 a district sales manager 22 A. Sacramento and Oakland 23 Q. Do you have a specific recollection of 24 working out of Sacramento and visiting him on one of 25 the homes where he was in the drywall phase or are you aan Aiken & Welch Court Reporters 150 ^' saying it was one or the other and you're not sure we A. Normally when I would be with John we would both be in our business clothes and he wouldn't actually be in there pounding nails or hanging wallboard We would just stop by on our way through Washoe Valley because John's working on the houses was basically done prior to a workday and after He was a very industrious guy He would get up real early in the morning and he and his son would go down and work 10 on a project He would then change and start the 11 coverage of his territory 12 Q. Let me ask you this maybe that will help 13 us date it a little better The times that you're 14 thinking about when you went to visit him you were on 15 a jobsite it was drywall work that was the active 16 phase of construction and his son was helping him 17 about how old was his son Was he out of high school 18 yet or a teenager 19 A. Well he was -~- I think J.D. was -- he was 20 in high school part of it and then he graduated from 21 high school and stayed with his dad 22 Q. Okay It would have been when he was 15 23 and 16 years old and after that 24 A. huh 25 Q. I want to ask you some other questions Aiken & Welch Court Reporters aa 3 oned that alked to you about some cts would like to take about a e can go off record and off ER It is 1:59 p.m. We are now aken ER It is 2:23 p.m. _ j ay continue We are back_ ank you by before I finish up I just nderstanding a little bit of your rogression through the 18 years . where you were based during those started in February of 1960 cally based Where were you orking out of your home or out of what Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about Mr. Crum Sir isn't it true Mr. Crum had taken ill visited him you spoke w A. Yes Q. And when you tell you about his cance it A. He just call hell out of me He saic I said What the John We're all dying No he says I my chest He didn't re So I told him I w could break free I went Q. And did he i learned from his doctor of cancer he had and ho him A. Well he sa products Q. Isn't it tr about that he discusse employment of his up in Aiken & Wel A. My about the time Q. Whe year do you rem A. It 1961 Q. Was you worked out A. Yes Q. And Center to work ~~ A. Sad / Q. And Sacramento A. Sev Q. 1970 And A. Bad Q. And Center from '70 A. Unt E MS JACKS Antioch Aik 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Kaiser office at I think it was Q. And where is that A. In Oakland Q. Right here in Oakland | A. Yes Q. And for how many years did you r working out of that office A. I think only about six months Q. And then about six months later a line salesman is that true | A. Yes Q. And is that when you transferred you were no longer working out of the Grand here in Oakland A. Right Q. Where were you working out of th A. My home in Alameda Q. Your home was where in Alameda A. It was on Laurel Street Q. And then for how long did you wo your home on Laurel Street in Alameda while continued in sales for how many years A. Oh for approximately a year Q. And then where did you -- did y position change in that you moved out of th Aiken 87 Welch Court Reporters Natea 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 155 A. Yes Yes For a couple of years we transferred the regional offices to Antioch yes Q. What years were those A. I would say '71 '72 in that area MS JACKSON Thanks Ken EXAMINATION BY MR PETTY MR PETTY Q. Now when you talked about the conversation you had with Mr. Kirk was it after you returned to the Kaiser Center from Antioch Some point between then and when the company was bought out by Domtar A. Yes It was in about the middle of 1970 Q. Do you remember replacing Mr. Alesandro | A. Yes < A. Did you ever take his position Yes Q. when -- What was the title of that position A. Regional manager Q. Were you the regional manager when you had the conversation with George Kirk A. No. I think I was still a district manager MR PETTY Kaiser Gypsum has no further questions of Mr. Crosby Aiken & Welch Court Reporters 156 Snap MR BERGMAN I'll need about three to four minutes to get put together THE VIDEOGRAPHER off the record It is 2:27 p.m. We are now Brief recess taken THE VIDEOGRAPHER on the record It is 2:29 p.m. We are back 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Counsel you may begin EXAMINATION BY MR BERGMAN MR BERGMAN Q. in the Marine Corps Mr. Crosby when did you serve MR PETTY scope Object to the form Beyond the THE WITNESS MR BERGMAN proud of sir A. Yes 1944 to 1946 approximately Q. Is that service that you're MR PETTY Same objection May I have a continuing objection to this line MR BERGMAN Yes served Q. Sir when you in the Marine Corps was honesty and integrity a value that was important to you A. Yes Q. When you worked as a salesman sir was Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 157 honesty and integrity something that was important to you A. Absolutely Q. When you were a district manager for Kaiser Gypsum was honesty and integrity something that was important to you A. Absolutely Q. .A Q. customers How about a regional manager Absolutely Did you value your relationship with your A. Yes Q. Was credibility an important thing for you to have in your dealings with your customers A. Very much so Q. Sir when asked by Mr. Petty whether you would help out John Crum from time to time what kind for of things would you do him . A. Well basically on a territory visitation he would accounts accompany the salesmen and try to bolster the on calls to his key Kaiser image Kaiser product and service That's basically it Q. In the course of helping John Crum out sir did you ever lie for him A. No. Aiken & Welch Court Reporters 158 Q. Would you ever lie for him A. No. Q. Would you ever lie for anybody A. No. Q. You've seen a lot of documents during the course of your deposition here this morning I don't want to ask you about any documents I want to ask you about what you actually remember I'm going to ask you first of all in the 10 course of your work did you actually see bags and 11 buckets of Kaiser Gypsum joint compounds 12 A. Not to my recollection 13 Q. Did you ever undertake tours of the 14 manufacturing facilities where Kaiser Gypsum joint 15 compounds were made 16 A. Yes 17 Q. And during the course of those tours did 18 you ever see bags of joint compound 19 A. Yes 20 Q. Did you ever see any warnings on those . 21 bags of joint compound 22 A. Not that I can remember 23 Q. In the course of your work sir as a 24 district sales representative was it ever sary 25 to conduct demonstrations of Kaiser Gypsum joint Aiken & Welch Court Reporters 159 compounds A. Yes Q. Could you describe for us how these demonstrations would go about MR PETTY I'm going to object This is beyond the scope MR BERGMAN You can have a continuing objection on that Counsel MR PETTY Thank you 10 THE WITNESS The salesman would approach a 11 potential customer that he wanted to sell our products 12 to and in many cases they are using a competitive 13 product and your ploy was to offer him some of our 14 - material to use to gauge between the product he was 15 using and our product Was ours equal or better 16 And we would donate product to the customer 17 after the salesman had prepared what we call a demo 18 request and got it signed by the appropriate people 19 and the material would be taken out of the inventory 20 at Antioch and delivered to the field 21 MR BERGMAN Q. And by material what do you 22 mean sir 23 A. Well whether it was taping or topping or 24 spray or radiant heat compound 25 Q. Would you be present when these Aiken & Welch Court Reporters 160 demonstrations were conducted sir Pe A. Some of them Q. Can you describe the type of work that would be done during these demonstrations A. Well normally the contractor would hang a room put the wallboard up and then they would be prepared to tape and then top We would give them the material They would mix it if it was powder in a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gallon bucket and then they would put it in a trowel and use tape and tape the joints After that had an opportunity to dry they would rough sand it and then put on the finishing coat through the same process of taking finishing compound and putting it in bucket and mixing it to a -- 0 Why in your position sir was it necessary for you to be present while these demonstrations were going on A. showed an Well it was just good interest in our customer business that we and in our product As I say I didn't go to every demonstration that was made but a good many MR BERGMAN Let me make what we'll call Kaiser Gypsum Exhibit 12. Is that what we're on MR PETTY This is not a Kaiser Gypsum exhibit This can be plaintiff exhibit whatever the number is Aiken & Welch Court Reporters 161 - MR BERGMAN Whatever you prefer an MR PETTY Your exhibits were marked 1 through MR BERGMAN We'll make it Plaintiff's Exhibit 8 then -- excuse me 9 Document marked Plaintiff's Exhibit No. 9 for Identification MR BERGMAN Q. Mr. Crosby I'm going to read 10 from Exhibit 9 which are Kaiser Gypsum's sworn 11 Answers to Interrogatories in litigation pending in 12 San Francisco County describing the labels allegedly 13 affixed to Kaiser Gypsum products 14 Initially the labels were 4 inches by 8 inches 15 in size and had yellow backgrounds with red letters 16 They were affixed to a bag or container of the product 17 by adhesive in a prominent place Later as new bags 18 and containers were purchased the labels were printed 19 onto the side of the bag or container in our belief to 20 have been the same color or colors the bag 21 container or the printing thereon The warning label 22 as prescribed by OSHA read Caution contains 23 asbestos fibers Avoid creating dust Breathing 24 asbestos may cause serious bodily harm 25 Mr. Crosby when you were conducting these Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 162 demonstrations for Kaiser Gypsum customers did you ever see warnings such as the ones I just described A. Not to my recollection Q. Sir did you conduct these demonstrations between 1972 and 1975 A. Yes Q. Regarding the text of these alleged labels sir is it possible to finish joint compound without creating dust A. No. Q. And why is that sir A. Because you have to sand it Q. Is there any way you can sand joint compound without creating dust MR PETTY Can I have a continuing objection to beyond the scope | THE WITNESS MR BERGMAN Not to my knowledge Yes of course Q. During the examination this morning you were shown can with the Kaiser Gypsum label on it sir A. Yes Q. from Do you have any idea where that can came A. No idea Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 163 Q. Do you have any idea when it was made A. No. Q. 1993 Do you know whether it was made in 1973 or A. No. Q. During your deposition you were shown Exhibit 4 which was a document with a distribution list attached to it Do you know whether that distribution list was attached to the document on the second page of Exhibit ? Let me strike that If you would look at the second page of Exhibit 4 does your name appear anywhere on that second page A. No. .. Do you have any idea whether or not or when the first page of Exhibit 4 was affixetdo the second page of Exhibit ? A. I have no idea Q. I'm going to refer to Exhibit 9 Kaiser Gypsum Exhibit 9 and in doing so I'm not waiving my previous objections to that document Mr. Kirk indicated in paragraph 6 of Exhibit 9 that you'd undertake tours of the manufacturing facility at Antioch A. Right Q. Was that something that you did fairly Aiken & Welch Court Reporters 164 often sir ies A. Oh quarterly probably Q. When you'd undertake tours in Antioch . sir was production going on A. Yes Q. And did you undertake tours of the Antioch facility prior to 1975 A. Yes Q. At any time sir did you wear any 10 respiratory protection when you were undertaking these 11 tours 12 A. No. 13 Q. And was -- did anybody with whom you were 14 conducting these tours with wear respiratory 15 protection 16 A. No. 17 Q. Was anybody in the plant at Antioch 18 wearing respiratory protection 19 MR PETTY Object to form 20 MR BERGMAN Q. Did you see anyone at the 21 plant in Antioch ever wearing any respiratory | | 22 protection prior to 1975 23 A. Very minimal if any 24 Q. You were shown Exhibit 8 by Mr. Petty 25 I'm not going to ask you to read the whole document Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 165 again with me sir I'm just going to ask you a few questions based upon it although if you feel the need to read it of course I'll be happy to provide you with that opportunity The document states on the first page of Exhibit 8 The attached draft has been prepared as a proposed merchandising bulletin This would disseminate the information to our sales personnel and would be available through our salespeople to contractors If you could look at the second page of Exhibit 8 and my question to you is sir did you ever see a merchandising bulletin not a draft but a merchandising bulletin such as the one attached to Exhibit ? A. Not to my recollection Q. Sir I'm going to just read a few things from Exhibit 8 from this draft document It states on page 2 of the document During manufacture of these products OSHA has several requirements including use of proper respirators by workers When you were undertaking tours of the Antioch facility did you see workers wearing respirators MR PETTY Object to the form of the question THE WITNESS Not to my recollection MR BERGMAN Q. Moving down the second page of Aiken & Welch Court Reporters 166 a the document attached to Exhibit 8 it states During News mixing spray application and sanding of these products OSHA requires workers to use proper respirators And it says Contractors Sir at any time were you told to advise contractors to wear respirators while sanding Kaiser Gypsum joint compounds A. Not to my recollection Q. Were you ever told by anybody at Kaiser 10 Gypsum to advise your customers to wear respirators 11 while mixing Kaiser Gypsum K spray 12 A. No. 13 Q. Sir if you had been provided that instructed Netoe 14 information if you had been to tell your 15 customers to wear respirators while sanding Kaiser 16 Gypsum joint compounds would that have been an 17 instruction that you would have followed 18 MR PETTY Object to form- Calls for : 19 speculation 20 THE WITNESS Yes 21 MR BERGMAN Q. I want to again refer to 22 Exhibit 9 without waiving my aforestated objections 23 Mr. Kirk states in his affidavit that he recalls that 24 you toured the Antioch manufacturing facility with 25 Kaiser Gypsum customers Aiken & Welch Court Reporters 167 A. True Q. Why would you take customers on tours of the manufacturing plants A. Well number one it was an interest that we had in our customers to see our products being manufactured so they'd become more attuned to them Q. Did you take -- did you -- when Kaiser Gypsum customers would tour the manufacturing facilities would they meet with any of the 10 individuals at the plant 11 A. Yes Usually we'd attempt to get in 12 specific area a workman from that area that was fully 13 versed in the product whether it was the board line 14 the accessory plant or the warehousing of material and 15 the loading and unloading of trucks 16 Yes we would request that we have plant 17 personnel with us did 18 Q. In 1970 sir you take any Kaiser 19 Gypsum customers on tours of the Antioch facility 20 A. Very likely 21 Q. And do you recall any discussions with Mr. 22 Raffaelli during any of these tours in the 1970 23 time period 24 A. Yes Al was -- in fact we used Al on 25 customer complaints Aiken & Welch Court Reporters 168 Q. During any of these tours -~ let me ask you about the period 1970 to 1971. During any of these customer tours of the Antioch facilities did any customers express interest or concern regarding asbestos in Kaiser Gypsum products A. I believe so MR PETTY Object to the form of the question MR BERGMAN Q. What was the nature of those concerns sir 10 MR PETTY Same objection 11 MR BERGMAN That remember 12 THE WITNESS Well there was quite a bit of 13 publicity at the time that asbestos was considered a 14 hazard to your health and so they would specifically 15 ask us do we have asbestos in our products that could 16 be harmful to them 17 MR BERGMAN Q. Were thos- e during these 18 plant tours during this sir were any concerns ever 19 expressed regarding asbestos to Mr. Raffaelli 20 MR PETTY Object to form Calls for hearsay ; 21 THE WITNESS Yes 22 MR BERGMAN Q. And can you describe those 23 concerns Can you describe the conversation to the 24 best of your ability Understanding giving counsel a 25 standing objectifoonr hearsay Aiken & Welch Court Reporters 165 again with me sir I'm just going to ask you a few questions based upon it although if you feel the need to read it of course I'll be happy to provide you with that opportunity The document states on the first page of Exhibit 8 The attached draft has been prepared as a proposed merchandising bulletin This would disseminate the information to our sales personnel and would be available through our salespeople to contractors 10 If you could look at the second page of Exhibit 11 8 and my question to you is sir did you ever see a 12 merchandising bulletin not a draft but a 13 merchandising bulletin such as the one attached to 14 Exhibit ? 15 A. Not to my recollection 16 Q. Sir I'm going to just read a few things 17 from Exhibit 8 from this draft document It states on 18 page 2 of the document During manufacture of these 19 products OSHA has several requirements including use 20 of proper respirators by workers 21 When you were undertaking tours of the Antioch 22 facility did you see workers wearing respirators 23 MR PETTY Object to the form of the question 24 THE WITNESS Not to my recollection 25 MR BERGMAN Q. Moving down the second page of Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 166 the document attached to Exhibit 8 it states During mixing spray application and sanding of these products OSHA requires workers to use proper respirators And it says Contractors Sir at any time were you told to advise contractors to wear respirators while sanding Kaiser Gypsum joint compounds A. Not to my recollection Q. Were you ever told by anybody at Kaiser Gypsum to advise your customers to wear respirators while mixing Kaiser Gypsum K spray A. No. Q. Sir if you had been provided that information if you had been instructed to tell your customers to wear respirators while sanding Kaiser Gypsum joint compounds would that have been an instruction that you would have followed MR PETTY Object to form | Calls for , speculation THE WITNESS MR BERGMAN Yes Q. I want to again refer to Exhibit 9 without waiving my aforestated objections Mr. Kirk states in his affidavit that he recalls that you toured the Antioch manufacturing facility with Kaiser Gypsum customers Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 167 A. True Q. Why would you take customers on tours of the manufacturing plants A. Well number one it was an interest that we had in our customers to see our products being manufactured so they'd become more attuned to them Q. Did you take -- did you -- when Kaiser Gypsum customers would tour the manufacturing facilities would they meet with any of the individuals at the plant A. Yes Usually we'd attempt to get in specific area a workman from that area that was fully versed in the product whether it was the board line the accessory plant or the warehousing of material and the loading and unloading of trucks Yes we would request that we have plant personnel with us Q. In 1970 sir Gypsum customers on tours did you take any Kaiser of the Antioch facility A. Very likely Q. And do you recall any discussions with Mr. Raffaelli during any of these tours in the 1970-171 time period A. Yes Al was - in fact we used Al on customer complaints Aiken & Welch Court Reporters 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 168 Q. During any of these tours -- let me ask you about the period 1970 to 1971. During any of these customer tours of the Antioch facilities did any customers express interest or concern regarding asbestos in Kaiser Gypsum products A. I believe so MR PETTY Object to the form of the question MR BERGMAN Q. What was the nature of those concerns sir MR PETTY Same objection MR BERGMAN That remember THE WITNESS Well there was quite a bit of publicity at the time that asbestos was considered a hazard to your health and so they would specifically ask us do we have asbestos in our products that could be harmful to them MR BERGMAN Q. Were those -- during these plant tours during expressed regarding this sir were asbestos to Mr. any concerns Raffaelli ever MR PETTY Object to form ' THE WITNESS Yes Calls for hearsay MR BERGMAN Q. And can you describe those concerns Can you describe the conversation to the best of your ability Understanding giving counsel a standing objectifoonr hearsay Aiken & Welch Court Reporters 169 A. Well they were fairly general insomuch as because he was our specialist on accessory products he would ask How much or Do you put asbestos into your accessory products And I can remember asking Al that directly Q. What if anything did Mr. Raffaelli say in response to the customer inquiry at the Antioch plant concerning asbestos in Kaiser Gypsum products MR PETTY Same objections 10 THE WITNESS No. He said No. We do not 11 have asbestos in our products 12 MR BERGMAN Q. Did these conversations take 13 place sir at the time that you were a district 14 manager for Kaiser Gypsum 15 A. Yes 16 MR BERGMAN Those are the questions that I 17 have at this time 18 MR PETTY Just give us two minutes 19 THE VIDEOGRAPHER It is 2:48 p.m. We are now 20 off the record 21 Brief recess taken 22 THE VIDEOGRAPHER It is 2:51 p.m. We are back 23 on the record 24 Counsel you may continue 25 MR PETTY At this point Kaiser Gypsum has no Aiken & Welch Court Reporters 170 further questions Thank you sir THE VIDEOGRAPHER This concludes the deposition of Brentwood Crosby The present time is 2:52 p.m. The electronic record for this portion of the deposition contains two videotapes The originals are to be retained by Video Production Services at 3655 Grand Avenue Oakland California 94610 Telephone 510-893-0555 Copies are available to interested parties unless otherwise stipulated 10 Would anyone like copies at this time 11 MS JACKSON Yes 12 MR BERGMAN Yes 13 MR PETTY Just for the stenographic record 14 I'm not sure that we made this clear but Exhibit 11 15 is being retained by stipulation of counsel with 16 Jackson & Wallace here in San Francisco the Kaiser 17 Gypsum Exhibit 11 18 Whereupon the deposition was 19 concluded at 3:00 p.m. 20 21 22 SIGNATURE OF WITNESS 23 24 25 Aiken & Welch Court Reporters STATE OF CALIFORNIA ) 171 COUNTY OF ALAMEDA ) I KIMBERLEY RICHARDSON do hereby certify That BRENTWOOD CROSBY in the foregoing deposition named was present and by me sworn as a witness in the entitled action at the time and place therein specified 10 That said deposition was taken before me at said 11 time and place and was taken down in shorthand by me 12 a Certified Shorthand Reporter of the State of 13 California and was thereafter transcribed into 14 typewriting and that the foregoing transcript 15 constitutes a full true and correct report of said 16 deposition and of the proceedings that took place 17 IN WITNESS WHEREOF I have hereunder subscribed 18 my hand this 16th day of July 1999 &, 19 20 : 21 a res pe KIMBERLEY iy . Ail SL. x oF LA CE Lap: ante _4 At oS 22 , KIMBERLEY RICHARDSON CSR No. 5915 tate of California 23 4 24 25 Aiken & Welch Court Reporters " SUPERIOR COURT OF WASHINGTON FOR KING COUNTY JOHN E. CRUM and MARILYN J. CRUM a married couple Plaintiffs No. 98-2-24915-3 SEA AFFIDAVIT OF RICHARD A. MADSEN V. THE E.J. BARTELLS COMPANY et al 10 | Defendants 11 12 13 STATE OF CALIFORNIA 357 357 SS 14 COUNTY OF SAN FRANCISCO 15 16 I RICHARD A. MADSEN declare 17 1 I was employed with KAISER GYPSUM COMPANY INC hereinafter 18 KAISER GYPSUM from 1966 through 1978 when KAISER GYPSUM ceased its 19 operations While employed with KAISER GYPSUM my job title was Director of 20 Advertising and Public Relations 21 2 was friend and worker of JOHN CRUM and accompanied Brent 22 Crosby to visit Mr. Crum a few weeks prior to his death 23 3. I recall decedent JOHN CRUM being employed by KAISER GYPSUM as 24 a salesman for the Tahoe district 25 4. I am informed and believe that the captioned lawsuit was filed 26 against KAISER GYPSUM by JOHN CRUM who alleges exposure to asbestos- 23 containing products 28 5 As Director of Advertising and Public Relations it was my responsibility 1 AFFIDAVIT OF RICHARD A. - MADSEN 1 to supervise the design and order all packaging materials and labels for every product which bore the KAISER GYPSUM name 6 I have been informed that Mr. Brentwood Brent Crosby a former District Sales Manager for KAISER GYPSUM with whom I am personally acquainted testified recently in deposition that he was unaware of any caution labels on any of the packages of KAISER GYPSUM's containing products 7. The statement in deposition by Mr. Crosby that KAISER GYPSUM's containing products never contained a caution label is not correct 8 Beginning in 1972 pursuant to OSHA regulations KAISER GYPSUM 10 placed a caution label on all of its containing products The caution label as 11 prescribed by OSHA read CAUTION Contains asbestos fiber avoid creating dust 12 breathing asbestos dust may cause serious bodily harm 9 Initially the worded caution was a separate label placed on the 14 packaging of containing products Eventually as new product packaging was 15 ordered and replenished the caution label was printed on the packaging itself As non- 16 asbestos product formulations were developed and marketed the asbestos caution label 17 was replaced with an indication that the product was of a asbestos formulation 18 Ml Ill 20 Ill 21 Ill 22 Ill 23 Ill 24 Mf 25 Ill 26 {if 27 Ill 28 Ill AFFIDAVIT OF RICHARD A. MADSEN - 1 10 In the course of his employment Mr. Crosby was informed by interoffice memoranda of any changes in packaging and labeling specifically in reference to asbestos caution labels I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge Signed at San Francisco California 20th of May , 1999 10 A. MADSEN 11 20th SUBSCRIBED AND SWORN to before me this by Richard A. Madsen day of May , 1999 12 13 14 7 15 COMM 1119010 PC01 16 17 18 19 AFFIDAVI.MAD Jill Harry Jill Harvey Harvey PRINT NOTARY'S NAME Notary Public in and for Richmond California residing at Ric1h2/5m/124ond My commission expires State of Richmond , 12/5/124 12/5124 12/5/112/251424 12/5/124 CA . 20 21 22 23 24 25 26 27 23 AFFIDAVIT OF RICHARD A. MADSENMADSEN 1 al Plant Managers S. R. Witt M. Slavich J. F. Modaff P. D. Orleman G. W. James C. E. Caprye DISTRIBUTION LIST Product Sales Managers E. K. Denning . C. V. Durant J. D. Hodges Distribution Centers Regional Sales Managers T. C. Donovan A. P. Alessandri J. H. Watson R. P. Russell - Newark D. L. Hardy - Phoenix L. D. Olsen District Sales Managers G. G. Brown A. R. Olson G. M. Thomas B. F. Crosby W. M. Torgerson C. E. Watson J. V. Kelly R. H. James Area Sales Managers D. J. Deya B. T. Asimos D. V. Merante R. H. Ranger J. F. Houser R. L. Nauta A. V. Capone D. V. Merante / AT COPIES TO SUBJECT KAISER GYPSUM COMPANY INC OFFICE MEMORANDUM 0.7 See Attached Distribution DATE May 3 1973 J. W. Blewett R. C. Crowle P. J. Franklin R. W. Grigg H. C. Dupuis Grimme C. R. Grimme W. J. Marshall E. H. Schaper T. V. Smith FROM : R. A. Madsen Madsaeen AT 928 G. K. Kirk R. J. Laidlaw PRODUCT IDENTIFICATION FOR PRE DUAL PURPOSE JOINT COMPOUND AND TOPPING COMPOUND The purchasing department has instructed suppliers of packaging for subject products to convert to the following colorcoding effective immediately 1 Purpose Joint Compound a 5 gal plastic or metal pail Black pail White printing Black top White top Atlanta area b 4 gal carton Natural kraft stock Red and black printing 2 Topping Compound 2 5 gal plastic or metal pail Black pail Green printing Green top b 4 gal carton Natural kraft stock Green and black printing A : The above packaging carries approved Caution as prescribed by federal regulations relating to products containing asbestos fibers Please inform your people of these packaging changes RAM jw raga Memorandum from R.A.MADSEN Chron SYD HENDERSON 5/17/73 As soon as the plant managers advise me of their requirements I'll let you know what quantities of labels we'll need and where to ship them Thank you a see N.CO. OFFICE MEMORANDUM : / C. E. Caprye AT J. D. Cassidy J. W. Flannigan COPIES TO D. J. L. W. Hardy Blewett R. C. Crowle H. C. Dupuis P. J. Franklin G. W. James J. F. Modaff P. D. Orleman R. P. Russell R. W. Grigg C. R. Grimme G. B. Kirk E. H. Schaper SUBJECT ASBESTOS CAUTION LABELS . M. Slavich S. R. Witt J. H. Walton Chron . DATE May 17 1973 , FROM R. A. Madsen 1 jd AT 928 Ref Occupational Safety and Health Act of 1970 CAUTION CONTAINS ASBESTOS FIBERS AVOID CREATING DUST BREATHING ASBESTOS DUST MAY CAUSE SERIOUS BODILY HARM Above label is in compliance with Federal Regulations relating to Occupational Safety and Health Standards 29 CFR 1910.93a The above label must appear on all Kaiser Gypsum Company bags cartons containers etc. which contain products formulated with asbestos fiber The purchasing department is continuing to instruct suppliers to include the caution label when printing reorders for packaging materials in order to eventually eliminate the need to hand affix them at the plants In the meantime if you have existing unlabelled inventory please advise me immediately of the number of labels needed at your facility to insure prompt compliance with the above referenced federal regula- tion You may prefer to accomplish the labelling with a hand stamp which can be procured locally at any stationery store intention please advise Thank you 717-3 717-3 717-3 KAT ATSER ATSER ATSER GYPSUM GYPSUM GYPSUM GYPSUM GYPSUM COMPANY COMPANY ANAL VISELNE VISELNE INS KAISER KAISER GYPSUGMYPSUGMYPSUM f M D2 Ly tere COMPANY COMPANY , INC INC MSTAND ABBEY EN A te June 19 1973 Mr. Jack Sullivan Bennett Industries P. O. Box 34132 San Francisco California 94134 Dear Jack Per your instructions we have forwarded to your plant a sample container layout for the revised imprinting of one gallon containers of Kaiser Gypsum Pre 3 Purpose Compound Copy is essentially the same but please be advised of the following copy additions and changes in the printing format 1. 1 Gallon U. S. Standard Measure This must appear as indicated on the lefthand side on the lower third of the principal display panel 2 We have repositioned the instruction panel moving the name and address of the company e A Product of Kaiser Gypsum Company Inc. 300 Lakeside Drive 94604 to the lower third of the panel Oakland Ca. 3. The asbestos caution must be printed as shown on the con- tainer 4. The Important Note to Purchaser is to be positioned as * indicated With the exception of Item 4 the above changes reflect the re- quirements of federal as well as most state regulations As you know this is a rush job printing However I would appreciate reviewing a proof prior to Thank you for your assistance in this matter BCC L. Beck J. W. Blewett R. W. Grigg G. B. Kirk CC Mr. Donald Anderson Container Industries Inc. Very truly yours Lichidh Lichidh Lichidh . Lichidh Lichidh Madsen Director Advertising and Sales Promotion R. A. MADSEN CHRON FILE 1975 APRIALPRIL DEC . KAISER CEMENT & CORPORATION OFFICE MEMORANDUM L. Beck R. Bridges A, G. James | P. D. Orleman J. M. Schlenner ; oS . ' TO COPIES U C. E. Caprye R. L. Muhr E. K. Denning D. K. Tudor J. F. Modaff DATE August 7 1975 y . Madsen FROM R. A. Madsen . SUBJECT SUBJECT LB PRE JOINT AND TOPPING COMPOUND ASBESTOS LABELS adhesive labels for subject product pails and cartons are being shipped to you via surface today as indicated below Destination _ Antioch Delanco Jacksonville Santa Ana Seattle Quantity . 10,000 10,000 10,000 500 $ - 20,000 10,000 10,000 The new labels are to be placed over the asbestos warning label printed on the containers when production at your plant shifts to the asbestos product formulation - Please see attached RAM Attach . a a Chinn gh CAUTION CONTAINS ASBESTOS FIBERS AVOID CREATING DUST BREATHING ASBESTOS DUST MAY CAUSE SERIOUS BODILY HARM Above label is in compliance with Federal Regulations relating to Occupational Safety and Health Standards 29 CFR 1910.93a Red Label attached here > NEW ASBESTOS FORMULATION KAISL GYPSUM COMPANY ... IC OFFICE MEMORANDUM cc G. James C. Caprye J. Modaff M. Slavich / J. W. Blewett AT COPIES TO = R. C. Crowle H. C. Dupuis P. Franklin | R. A. Madsen W. J. Marshall E. H. Schaper J. S. Sheahan T. V. Smith J. E. Toomey J. H. Walton H. L. Weightman DATE June 27 1973 FROM AT SBK G. B. KirkSBK SBK 1145 SUBJECT ASBESTOS With the recent passage of EPA regulations restricting the spray application of insulating and fireproofing products containing asbestos we are beginning to get inquiries from contractors concerning Kaiser Gypsum Texture Products and Radiant Heat Products These products do contain small amounts of asbestos fiber and are applied on the job Contractors are anxious to know whether the new EPA regulations restrict or prohibit the spray application of these products During the past year John Sheahan has attended EPA meetings and has corresponded with EPA and has now received a letter from EPA headquarters advising that these Kaiser Gypsum products are considered to be decorative materials and are not a major source of asbestos emissions Therefore EPA does not include these products in the scope of the new regulations Therefore these Kaiser Gypsum products may continue to be spray applied on the job by contractors In order to clarify the facts concerning the OSHA and EPA regulations concerning asbestos the attached draft has been prepared as a proposed Merchandising Bulletin This would disseminate the information to our sales personnel and would be available through our sales people to contractors Please review the attached draft and advise your comments on the draft by July 13 NOTE Attached to this memo are copies of John Sheahan's correspondence and a copy of the asbestos caution label for your information It is not intended to attach this material to the Merchandising Bulletin & GBK Enclosures DRAFT ASBESTOS Federal agencies have investigated asbestos and found that it can be a health hazard Exposure to airborne asbestos of high enough intensity and long enough duration causes lung cancer and asbestosis a cancerous lung disease which often causes death There are many disputes as to what is a safe level of exposure and whether one type of asbestos is less harmful than others Because the effects may take twenty to thirty years to show up health authorities are inclined to set tight limits on any asbestos exposure U. S. Department of Labor through the Occupational Safety & Health Act has adopted regulations to protect workers exposed to asbestos U. Environmental Protection Agency has adopted regulations to protect the general public Kaiser Gypsum Company Inc. uses a small amount of asbestos for workability and shrinkage control in joint compounds texture paints and radiant heat compounds Kaiser Gypsum Company is manufacturing and labeling these products in accordance with OSHA and EPA regulations Contractors using these products are also affected | - by these regulations The following information generally summarizes asbestos regulations pertaining to Kaiser Gypsum products Specific details are spelled out in the regulations themselves and should be studied by contractors using these products Asbestos Page 2 KAISER GYPSUM COMPANY During manufacture of these products OSHA has several requirements including use of proper respirators by workers Broken bags and spills are to be cleaned up by vacuum cleaners Bags are to be disposed of in sealed plastic bags EPA requires No visible emissions to the outside air from manufacturing plants to protect the general public from asbestos fiber CONTRACTORS During mixing spray application and sanding of these products OSHA requires workers to use proper respirators Empty bags are to be disposed of in sealed plastic bags There is considerable misunderstanding about the EPA regulations on spraying of containing products jobs Kaiser Gypsum Company has been advised by the EPA that It is the opinion of this Agency that the spray application of decorative materials containing asbestos is not a major source of asbestos emissions therefore spray decorative materials were not included in the regulations The regulations only apply to the spray application of insulating and fireproofing | materials . Kaiser Spray Ceiling Texture Kaiser Cover Texture Paint and Kaiser Radiant Heat Compounds may be sprayed applied on the job Although these products contain small amounts of asbestos spray application is not considered to create a hazard and these products are not covered by EPA regulations Asbestos Page 3 REFERENCES 1 OSHA regulations Occupational Safety and Health Standards Department of Labor Standard for Exposure to Asbestos Dust Title 29 Chapter XVII Part 1910 Federal Register Volume 37 No. 110 - June 7 1972 2 EPA regulations National Emission Standards for Hazardous Air Pollutants 40CFR 61 Federal Register Volume 38 No. 66 - April 6 1973 3 Letter to Kaiser Gypsum Company from the Deputy Assistant Administrator for General Enforcement U. S. Environmental Protection Agency Washington D. C. dated May 29 1973 4 Control Techniques for Asbestos Air Pollutants U. S. Environmental Protection Agency Research Triangle Park North Carolina - February 1973 GBK 6/27/73 KAISER KAISER KAISER KAISER GYPSUM . P. 0. BOX & GYPSUM COMPANY KAISER GYPSUM PHONE 767-2870 COMPANY INC ANTIOCH CALIF 94509 May 2 1973 Robert W. Fri Acting Administrator Environmental Protection Washington D. C. 20460 Agency Dear Sir We have reviewed the National Emission Standards for Hazardous Air Pollutants published in the Federal Register April 6 1973 in regard to asbestos We are particularly interested in applied materials used as decoration and not for insulation or fireproofing having worked closely with your staff on them The following is our interpretation of the above standards as they pertain to these products Spray operations using asbestos materials for decoration and not for insulating or fireproofing in which the asbestos is strongly bound and would not generate particulate asbestos emissions are not covered in this regulation and are not restricted in asbestos content Occupational Safety and Health Administration regulations include exposure housekeeping and waste disposal requirements which will protect the health of those working in proximity to such spraying operations Is this interpretation correct truly yours KAISER GYPSUM COMPANY INC ; S Sheahan Sheahan Sheahan Sheahan S. Sheahan Senior Research Chemist . c bcc G. B. Kirk T. V. Smith UNITED STATES ENVIRONMENTAL AGENCY Nearae ENVIRONMENTAL AGENCY ENVIRONMENTAL AGENCY UNITED STATES ENVIRONMENTAL PROTECTION AGENCY PROTECTION WASHINGTON D.C. 20460 : ee MAY 29 1973 RECEIVEJUDN 1973 Mr. J. S. Sheahan Senior Research Kaiser Gypsum Company P. O. Box 460 Inc. Antioch California 94509 Chemist Dear Mr. Sheahan This is in response to your inquiry of May 2 1973 concerning the interpretation of the National Emission Standards for Hazardous Air Pollutants 40 CFR 61 as they pertain to containing sprayapplied materials used for decorating purposes Subpart B of these regulations was designed to limit major sources of asbestos emissions It is the opinion of this Agency that the sprayon application of decorative materials containing asbestos is not a major source of asbestos emissions therefore spray decorative materials were not included in the regulations The regulations only apply to the spray application of insulating and fireproofing materials Please be advised however that the manufacture of spray asbestos materials for decoration is regulated under section 61.22 of the regulations under the category of manufacturing of a coating If you have any further questions please contact the Director of the Enforcement Division of the appropriate Regional Office of the Environmental Protection Agency A list of the Regional Offices is included in 40 CFR 61.04 Sincerely yours averun averun George V. Allen Deputy Assistant Administrator for General Enforcement gr CAUTION CONTAINS ASBESTOS FIBERS AVOID CREATING DUST BREATHING ASBESTOS DUST MAY CAUSE SERIOUS BODILY HARM Above label is compliance with Federal Regulations relating to Occupational Safety and Health Standards 29 CFR 1910.93a SUPERIOR COURT OF WASHINGTON FOR KING COUNTY ' JOHN E. CRUM and MARILYN J. CRUM a married couple Plaintiffs No. 98-2-24915-3 SEA AFFIDAVIT OF GEORGE KIRK V. THE E.J. BARTELLS COMPANY et al 10 Defendants 11 12 13 STATE OF CALIFORNIA ) ) SS 14 COUNTY OF SAN FRANCISCO _ ) 15 I GEORGE KIRK declare 16 1 I was employed with Kaiser Gypsum Company Inc. hereinafter Kaiser 17 Gypsum since its inception in 1952 through 1974. In 1958 I became Director of 18 Research for Kaiser Gypsum and held that position through 1974 . 19 2. am informed and believe that the captioned lawsuit was filed 20 against Kaiser Gypsum by John Crum who alleges exposure to containing . , 21 products 22 3. As Director of Research I am familiar with Kaiser Gypsum's product line 23 and the components which were used to formulate each product 24 4. I am informed and believe that Mr. Brentwood Brent Crosby a former 25 regional salesman for Kaiser Gypsum with whom I am personally acquainted testified 26 recently in a deposition that in 1970 he asked me if any of Kaiser Gypsum's products 27 contained asbestos I am informed and believe that Mr. Crosby said that my response 28 was to tell him that none of Kaiser Gypsum's products contained asbestos 1 AFFIDAVIT OF GEORGE KIRK- 1 5 I do not recall that Mr. Crosby ever asked me in 1970 whether or not any of Kaiser Gypsum's products contained asbestos Had he asked me that question in 1970 I would have truthfully responded that Kaiser Gypsum's accessory products contained asbestos as an ingredient 6 Kaiser Gypsum always had an open policy and encouraged its employees such as Mr. Crosby to tour its facilities I specifically recall Brent Crosby touring the Antioch manufacturing facility with Kaiser Gypsum customers At the time Mr. Crosby took these tours pallets with sacks labeled asbestos would have been visibly present and could have been seen by Mr. Crosby during the plant tours 10 7 Likewise I recall Mr. Crosby visiting the researcanhd development lab at 11 Antioch where asbestos was kept in clearly labeled containers 12 8. I recall that in approximately 1972 OSHA began to regulate the types of 13 containing products which were manufactured by Kaiser Gypsum In response 14 thereto Kaiser Gypsum placed a caution label which conformed to OSHA mandates on 15 all ofits containing products Initially the caution labels were printed 16 separately and placed on each product package Eventually as new product packaging 17 was ordered the labels were printed directly on the packaging As asbestos was removed 18 from the products the packaging no longer contained the caution label 19 Ill 20 If 21 III 22 Ill 23 III 24 If 25 Ill 26 III 27 Ill 28 III AFFIDAVIT OF GEORGE KIRK - 1 9. Brent Crosby's job title did not necessarily involve him in the management decisions regarding product formulations and caution labels therefore he would not have had personal knowledge of any company decisions regarding product formulations and caution labels I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct to the best of my knowledge Signed at San Francisco California this 1thday11thday ofMarch , 1999 George Kirk 10 George George 11 ilth March 12 SUBSCRIBED AND SWORN to before me this ilth day of March by George Kirk , 1999 13 14 15 COMM 1119010 16 Zi) NOTARY CALIFORNIA PC01 SAN FRANCISCO COUNTY PC01 17 PC01 Comm Expires Dec. 2000 7 18 19 RAPJGMAILAKAISER.400 AFFIDAVI.GK 20 Jin JillJill HarveyHarvey PRINT NOTARY'NSAMNEAME Notary Public in and for State of California residing Richmond My commission expires 12/5/0 12/5/00 12/5/00 CACA.. 21 222 23 24 22 26 27 28 AFFIDAVIT OF GEORGE KIRKKIRK 1 KAISER GYPSUM COMPANY KAISER CENT-E3R 00 LAKESIDE DRIVE OAKLAND CALIFORNIA 94604 INC April 5 1974 Mr. A. Victor Abnee Jr. Executive Vice President Gypsum Association 1603 Orrington Avenue Evanston Illinois 60201 Dear Vic As you knowi shall be unable attend the forthcoming Gypsum Association Board of Directors Meeting There is one subject on which I would like you to know our position and this is in respect to labeling products containing asbestos asbestos Our position is that we should label joint compound containing in strict accordance with OSHA regulations and are doing so onour products The attached letter by our John Sheahan to Mr. Volk of National Gypsum whom I understand is a member of the Safety Committee of the Association provides details supporting the need for this position If there are any further questions you have with respect to this subject please give me a call Yours very truly HCD Attachment Robert A. Costa Vice President and General Manager 762-10 13 PARA RECEIVE RECEIVE OTHER J. PATRICK HAGAN ESQ State Bar 68264 E. JANE WELLS ESQ State Bar 112178 DILLINGHAM & MURPHY 225 Bush Street Sixth Floor JUL 23 23 1997 BRAYTON HARLEY ore HAND - OVERNIGHT . (_ O) San Francisco CA 94104-4207 os ana 415 397-2700 Attorneys for Defendant KAISER GYPSUM COMPANY INC 7/2 /973 POS POS VERIFY VERIFY 7/28/97 LDF ( 1/19/98 7/28/97 7/28/97 TSC Loe SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO 10 IN RE SAN FRANCISCO COUNTY 11 COMPLEX ASBESTOS LITIGATION 12 13 14 15 16 CASE NO 828684 KAISER GYPSUM COMPANY INC.'S _ RESPONSES TO PLAINTIFFS STANDARD INTERROGATORIES TO ALL DEFENDANTS 60129 17 PROPOUNDING PARTY : Plaintiffs 18 RESPONDING PARTY : 19 SET : 20 DATE : Defendant Kaiser Gypsum Company Inc. | Standard a 21 COMES NOW defendant Kaiser Gypsum Company Inc. hereinafter Kaiser 22 Gypsum and provides the following responses to Plaintiffs Standard Interrogatories 23 To All Defendants propounded pursuant to San Francisco County Complex Asbestos 24 Litigation General Order No. 129 25 KAISER GYPSUM'S PRELIMINARY STATEMENT 26 | 27 Kaiser Gypsum submits this preliminary statement to memorialize certain steps taken to implement the standard discovery regime adopted pursuant to the revised 28 General Orders filed November 15 1996 governing asbestos personal injury -1- | 9 obtained from Wesco Waterpaints Inc. was an containing product Kaiser Gypsum knows of no other agreement entered by it that provided for rebranding any product of another company's which may have been an containing product in Kaiser Gypsum's name for sale in California INTETR O IR NTO ERRG OGA ATOTRYONR O 3Y7 Yes as to products marketed in 1972 or thereafter A. Beginning in 1972 in response to regulations adopted by the U.S. Occupational Safety and Health Administration see 37 Fed Reg 11318 June 7 10 1972 Kaiser Gypsum affixed caution labels to the packages and containers of its containing 11 products The OSHA regulations requiring this label were made 12 subject to the limitation that no label is required where asbestos fibers have been 13 14 15 16 171 18 19 20 21 22 23 24 25 ' 26 27 28 | modified by a bonding agent coating binder or other material so that during any reasonably foreseeable use handling storage disposal processing or transportation no airborne concentrations of asbestos in excess of the exposure limits prescribed in paragraph B. of this section will be released In light of existing ambiguities as to what tests OSHA would recognize as adequate demonstrate a product's falling within this exception Kaiser Gypsum applied the caution label to all its manufactured products in which chrysotile asbestos was used as a component Initially the labels were four inches by inches in size and had yellow . backgrounds with red letters They were affixed to the bag or container of the product by adhesive in a prominent place Later as new bags and containers were purchased the labels were printed onto the side of the bag or container and are believed to have been the same color or colors as the container or the printing thereon The warning label as prescribed by OSHA read CAUTION contains asbestos fibers avoid creating dust breathing asbestos dust may cause serious bodily harm -48- & Additionally Kaiser Gypsum Technical Bulletins 5703 dated October 1973 and 5707 dated October 1973 and November 1976 prescribed the use of respirators | during spray application B. Yes 10 11 12 13 14 15 16 17 18 19 20 21 22 23 C. Beginning in 1972 exact date unknown D. This caution label remained the same during the remaining time the products upon which it was used continued to use asbestos as a component E. Joseph R. Hobby Vice President 2680 Bishop Drive San Ramon California INTETR O IR NTO ERRG OGA ATOTRYONR O 3Y8 Most of Kaiser Gypsum's products were sold in the form of a powder or paste therefore the name of the company was on the packaging of the product However Kaiser Gypsum's hour rated ceiling tiles and suspended ceiling lay board products in which asbestos was used as a component were specially marked because they looked similar to other Kaiser Gypsum mineral fiberboard ceiling tiles and lay boards that did not contain asbestos as a component and building inspectors wanted to be able to check to make sure that hour rated products actually were being used by the building contractor when those had been specified It is believed that each piece of hour rated ceiling tile and suspended ceiling lay board was stamped on the back with either the initial KGor the word Kaiser Gypsum Such marking was employed during the entire period that the hour rated products were manufactured by Kaiser Gypsum 24 Kaiser Gypsum has no knowledge that it ever purchased or otherwise acquired 25 an containing product line from another person or entity 26 INTETR O IR NTO ERRG OGA ATOTRYONR O Y 40 27 Kaiser Gypsum has no knowledge that it ever sold an containing 28 product line to another person or entity -49-