1 united states district court western district of ...€¦ · are sworn -- these are questions and...

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Debbie Zurn - RPR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

_____________________________________________________________

JAMES B. TURNER and JOANNEK. LIPSON, husband and wife,

Plaintiffs,

v.

LONE STAR INDUSTRIES, INC.,ON MARINE SERVICES COMPANY,LLC.,

Defendants.

)))))))))))))

C13-01747-TSZ

SEATTLE, WASHINGTON

December 6, 2013

Jury Trial

Volume 5 of 10

_____________________________________________________________

VERBATIM REPORT OF PROCEEDINGSBEFORE THE HONORABLE THOMAS S. ZILLY

UNITED STATES DISTRICT JUDGE_____________________________________________________________

APPEARANCES:

For the Plaintiff: Thomas H. Hart, IIILaw Offices of Thomas H. Hart207 E. 1st N. StreetSummerville, SC 29483

Chandler H. UdoBergman Draper & Ladenburg PLLC614 First Avenue, Fourth FloorSeattle, WA 98104

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For the DefendantON Marine Services:

For the DefendantLone Star:

Robert G. AndreEmily H. GantAaron P. RienscheOgden Murphy Wallace PLLC901 Fifth AvenueSuite 3500Seattle, WA 98164

Terry HallWolfstone Panchot & Bloch1111 Third AvenueSuite 1800Seattle, WA 98101

Keith AmeeleFoley & Mansfield300 South Grand AvenueSuite 2800Los Angeles, CA 90071

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EXAMINATION INDEX

EXAMINATION OF: PAGE

BARRY CASTLEMAN DIRECT EXAMINATIONBY MR. HART

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CROSS EXAMINATIONBY MR. HALL

81

CROSS EXAMINATIONBY MR. ANDRE

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REDIRECT EXAMINATIONBY MR. HART

101

JAMES ROCK DIRECT EXAMINATIONBY MS. GANT

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CROSS EXAMINATIONBY MR. HART

164

REDIRECT EXAMINATIONBY MS. GANT

209

RECROSS EXAMINATIONBY MR. HART

213

EXHIBIT INDEX

EXHIBITS ADMITTED PAGE2137 923038 157

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THE COURT: I've been handed a proposed limiting

instruction. It's not clear to me whether this is agreed to,

or proposed by one side and objected to.

MR. ANDRE: I gave it to the other side this morning,

and I didn't raise the limiting instruction during the course

of Dr. Brodkin's testimony yesterday. If you recollect,

during my cross examination of Dr. Brodkin he started

volunteering, without my prompting, that he looked at a study

that was not with respect to a Ferro product, and that would

have been the Washborne study. I cut him off, continued my

examination, and sat down.

Then Dr. Brodkin, during Mr. Hart's redirect examination,

twice started to talk about that Washborne study. I objected

again. Your Honor sustained the objection. Mr. Hart didn't

delve any further into it. I think there is too much

prejudice. He was desperately wanting to talk about that

study. I think if we give a limiting instruction like this,

it's very focused, it's based on Your Honor's order that was

entered yesterday and no reference to the Washborne study.

THE COURT: I think I understand your position. Mr.

Hart, what's your view?

MR. HART: Your Honor, I think during your ruling you

indicated that it could not be used as primary evidence.

However, if reference was made to it or somehow some

reference that there were no other studies, it may open the

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door, and it would be something that would be proper comment

by a witness.

The questions, as I recall them -- and I was just handed

this before Your Honor stepped out so I haven't had time to

reflect the transcript accurately that we received last night

-- but I believe the question was: You're aware of no

evidence that hot tops release asbestos. He answered, yes,

there's a study. And counsel said what study? And it went

on for a number of questions and he referred to -- and he

said it was by another company. Counsel did not make any

motion at that time to strike. He delved into it for a few

questions, is my recollection. And he continued on and did

not make any motion to Your Honor at that time.

Later on in his same questioning of -- still the cross

examination -- the question, he raised the matter again, and

the witness answered truthfully. Yes, there is evidence. It

is from another company, but there is evidence. And he did

not comment on the Washborne study. I cautioned him that

Your Honor had excluded that. But in order to answer the

question truthfully, he had to state that there was evidence.

So, I think the doctor did everything he could to not

mention the Washborne study while still telling the truth.

And I think it was a fair comment. The jury doesn't know

anything about the Washborne study.

THE COURT: I don't think it was mentioned, was it?

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MR. HART: Not at all, Your Honor.

THE COURT: Well, I'll defer decision as to whether

I'm going to give any kind of limiting instruction, and I'll

look at the transcript sometime this morning.

MR. ANDRE: Thank you, Your Honor.

MR. HALL: I want to follow up very briefly with our

conversation at the end of the day yesterday with respect to

the Curtis deposition. We have not found a precise case with

respect to the Ninth Circuit. We do believe that there are

cases, federal court cases, specifically the Sixth Circuit,

that are pertinent and relevant to this issue. What I would

like to do is, over the weekend, provide -- file supplemental

authorities. I think that they can still show the video.

THE COURT: All right. Well, I'm not going to permit

it unless and until you provide me with authority, and based

on that authority I allow it. And I'm doubtful I'm going to

allow it unless it's pretty persuasive Ninth Circuit

authority. Because the rule talks about a party, and the

party here is the plaintiff. And the plaintiff was not

represented at that earlier deposition. So that will be my

ruling unless and until you persuade me to the contrary.

Bring in the jury.

MR. HALL: If we're able to do so we could put those

depositions on as part of our case.

MR. HART: If they persuade you that you might want

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to consider changing your mind, I have additional argument to

make that I won't make now.

THE COURT: You're ahead you don't need to make them

now.

(The following occurred in the presence of the jury.)

THE COURT: Call your next witness, please.

MR. HART: Yes, Your Honor, at this time the

plaintiffs would move into evidence Exhibit No. 505, which

are sworn answers to interrogatories by the defendant

ON Marine Services Company, Inc., LLC, Ferro Engineering

Division. They were filed in this case and signed August 8,

2013.

And we'd also move into evidence the attachments to those

interrogatories which have been marked in the trial as

Exhibits 506, 512, 513, 514, 515, 516, 517, 518, 519, 520,

521, 524, 525.

THE COURT: Any objection, counsel?

MR. ANDRE: The only ones we objected to, Your Honor,

there were two newspaper articles that were part of that

group. We didn't think putting newspaper articles in is the

proper subject for an evidentiary document in this case.

THE COURT: Were they exhibits to the answers to the

interrogatories?

MR. ANDRE: They were part of the answers to the

interrogatories.

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THE COURT: These are answers of the interrogatories

of your client?

MR. ANDRE: That's right, Your Honor.

THE COURT: I'll admit all the exhibits referenced by

counsel.

MR. HART: Thank you, Your Honor. May I publish

certain limited portions of those?

THE COURT: Certainly. It's in evidence. You can

publish any exhibit that's been admitted during the trial.

MR. HART: Ladies and gentlemen, good morning. These

are sworn -- these are questions and sworn answers that were

provided to us in this case. The first question was:

Did you ever sell, supply, and/or distribute hot tops to

Bethlehem Steel in Seattle, Washington during the years 1970

to 1976? There is some legal statements. Then without

waiving its objections: The defendant did manufacture and

sell certain asbestos-containing products for use with hot

tops to Bethlehem Steel in Seattle at various times during

the years 1970 to 1976.

Question No. 2. Did you ever manufacture, assemble, sell,

supply or otherwise put in the stream of commerce hot tops

that contained asbestos after 1969? Answer, after the legal

matters: Defendant did manufacture and sell certain

asbestos-containing refractory products for use with hot tops

to Bethlehem Steel in Seattle at various times during the

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years 1970 to 1976.

Question No. 3. If your answers to Interrogatories No. 1

or 2 were anything other than an unqualified no, please

describe with particularity every asbestos-containing hot top

product that you manufactured, assembled, sold, supplied, or

otherwise placed in the stream of commerce during the years

1970 to 1976. Response: Without waiving objections,

defendant may have manufactured and sold the following

asbestos-containing products to Bethlehem Steel in Washington

from 1970 to '76.

And probably you can better follow along -- this is

question No. 3. Ferroboard liners. Certain Ferroboard

liners contain 6 percent amosite or combination amosite and

chrysotile asbestos, depending on customer needs and

requirements. Asbestos-containing Ferroboard liners were

stacked on a wooden pallet then covered with a 6 mil shrink

wrap. Shipping labels with a designation C and D and Ferro

Engineering may have accompanied the product.

Asbestos-containing Ferroboard liners were tannish in color,

brick-like in structure, rectangular in form, which varied in

length and width depending on the size of the hot top, and

were manufactured with crease lines for folding the liner

into the proper shape. There were no markings on this

product other than the product number.

Then you see question No. 4. If your answer to

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Interrogatory 2 is anything other than an unqualified no,

please list the suppliers of the asbestos fibers incorporated

into your hot top products during the years '70 to '76.

The response: In general, asbestos fibers contained in

certain of defendant's products were purchased from Carey

Canadian, Canadian Johns Manville Corporation, National

Gypsum, North American Asbestos Corporation, Clark Asbestos

and International Fiber Corporation.

No. 8. Did warnings or instructions of any kind accompany

any of your hot top products described in your answer to

Interrogatory No. 3? If yes, please describe the content of

the warning or instruction. Then it references the label,

I'll show you in a moment, that was shown yesterday. And I'd

like to point out that there was no record of the precise

dates of implementation of the caution label with respect to

individual products.

The next question was: Please provide the names of each

trade or professional organization that you were a member of

prior to 1976. And then the answer, among other things they

state: Oglebay Norton Company, which as a result of a series

of mergers is now ON Marine Services Company, LLC, was a

member of the National Safety Council of 1949 to 2015. Ferro

Engineering was not a member of the National Safety Council.

Exhibit 513. The minutes of the meeting of the Oglebay

Norton and Ferro Engineering division personnel. January 16,

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1969. And the persons in attendance are listed. GAP opened

the meeting stating that the Ferro sales in 1968 reached an

all time high of approximately $18,400,000. On the second

page, I'll refer you to the third paragraph. Referring to

SWE by initials, he stressed that flat Ferroboard and XOP hot

tops were items that provided a high profit margin and that

additional effort would be concentrated on these lines.

Two paragraphs below that, JCC again discussed the

problems related to exothermic topping and gave information

regarding our possibilities of acquiring the output of Altan

in Oswego. Further investigation is necessary as we have not

heard back from the intermediary in this project. He also

reported that some progress was being made but a lot of

additional investigation was necessary with respect to the

possible new type backing for Ferroboard liners. There was

quite a discussion on the use of asbestos and the problems

related to asbestosis and respiratory ailments.

And according to the interrogatories, this document was

found in the company files. And the handwriting on here was

original when provided to us. Copy to, looks like H. Sheets,

10/17/66 from the Sunday Times, Asbestos Recognized As a

Cancer Risk. That's exhibit, ladies and gentlemen, 520.

Exhibit 519 is another article, copy to H. Sheets,

10/17/66: Chat With the Doctor. Even Asbestos Has Its

Dangers. Asbestos is a substance used in a great variety of

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industrial products. Can be very dangerous to people who

come in contact with it.

The next there it describes what asbestos is and states

that reaction occurs in lungs. Ultimately normal lung tissue

is replaced by fibrous tissue and cancer is possible. It

describes the disease, how much asbestos is there. It

continues down. The disease progresses slowly so that we may

now be seeing the results of exposure as long as 30 years

ago. Experts conjecture that the rate will be much higher

30 years from now. And that was 1966. It talks about people

working in the industry. Many others, though, can have

casual but just as dangerous exposure simply by living near

an industrial or construction site.

It talks about symptoms. More importantly, cancer of the

lungs occurs in about 13 percent of such victims, and the

death rate from cancer of the stomach, colon and rectum is

unusually high, even though no one knows why these organs are

affected. Doctors are also mystified by the appearance of a

rare tissue tumor, mesothelioma, which is found increasingly

in asbestosis victims. They do not know if it is the result

of a prolonged exposure or whether a casual exposure can

produce it too. The tumor was found in 12 of 300 workers in

the industry who were examined after their death.

Usually the case is diagnosed by x-rays of the lungs. It

can be discovered also by finding asbestos bodies in the

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sputum. And it describes those. No one has discovered a

method of treatment for the condition, which is considered

invariably fatal. The only prevention suggested is special

precautions for people constantly exposed to asbestos, such

as masks, air filtration, and improvement of environmental

conditions. It is also suggested that people not ordinarily

exposed to asbestos avoid any contact with the material when

it is in use, as when insulation is installed in a new home.

Your Honor, that concludes the portion of the documents we

wish to publish at this time.

We would call Dr. Barry Castleman to the stand to testify

next.

MR. HALL: Your Honor, am I correct that the

documents were only offered as against -- not offered as

against Lone Star?

MR. HART: That's correct, Your Honor.

BARRY CASTLEMAN

Having been sworn under oath, testified as follows:

THE CLERK: For the record, state your full name

please and spell your last name.

THE WITNESS: My name is Barry Castleman,

C-A-S-T-L-E-M-A-N.

THE COURT: Can we have an address for the record,

Mr. Castleman?

THE WITNESS: 4406 Oxford Street, Garrett Park

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Maryland, two Rs, two Ts.

DIRECT EXAMINATION

BY MR. HART:

Q Dr. Castleman, would you describe your profession to the

ladies and gentlemen of the jury, please?

A I'm a public health worker. My field is toxic substances

control.

Q What do you do in your field?

A I get involved in efforts to protect workers and the

public in general from toxic substances through information,

through regulations, implementation and development of

regulations to protect public health. And that would include

legislative efforts as well. Those kinds of things.

Q All right. And in your career have you consulted with the

United States Government concerning toxic substances?

A Yes.

Q And have you consulted specifically concerning asbestos?

A Yes.

Q Have you consulted with governments throughout the world

on the subject of asbestos and its toxic effects on people?

A Yes, I have.

Q Now, doctor -- I call you doctor. Will you tell the

ladies and gentlemen of the jury your education please, sir?

A My bachelor's degree is in chemical engineering from Johns

Hopkins University in Baltimore.

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A masters -- that was 1968. A master's degree is in

environmental engineering with air pollution control also

from Johns Hopkins. And my doctorate is in occupational and

environmental health policies, a doctor of science degree

from the Johns Hopkins School of Public Health.

Q Will you tell the ladies and gentlemen of the jury the

subject of your masters thesis please, sir?

A My masters thesis, completed in 1971, was called Asbestos

Effects on Health.

Q And after that time were you engaged in any work where you

advised the public on the hazards of asbestos?

A Yes.

Q Tell the ladies and gentlemen of the jury about that,

please.

A Well, my first job after getting a master's degree was to

work as an air pollution control official for the Baltimore

County Department of Health. And in the course of that I

sent out warnings to mechanics not to use compressed air

hoses to blow out brake assemblies, warning them that the

dust contained asbestos and could cause cancer.

I got involved in surveys at a local brewery and

distillery and found that they were using asbestos filters.

Through microscopic analysis we demonstrated that the filters

in the distillery were contaminating the gin with asbestos,

and persuaded those companies to stop using asbestos filters.

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Those were the kinds of things that -- some of the things

I did in that job.

Q Did you take efforts to attempt to get information to

users of asbestos products, information about the hazards of

those products?

A Yes. While I was there I testified at a Senate hearing.

I brought in a five-pound sack of asbestos I had bought that

week at a hardware store. This is 1973. And the only

marking on the bag was the price. And I pointed out to the

Senate committee that this was unacceptable that these kinds

of products were being sold to the public in this way.

This is the kind of thing I tried to raise awareness about

in terms of community exposure to asbestos.

Q All right. Now, that was 1973?

A Yes.

Q All right. Now, the testimony in this case is that Jim

Turner went to work for Bethlehem Steel in 1973. Do you

understand that?

A Yes.

Q All right. And so do you have a -- based on your master's

thesis and the work that you have done prior to that time and

since that time, do you have an understanding of what the

knowledge of asbestos hazards was in the industries that used

asbestos in 1973?

A I think I have a pretty good idea about that, yes.

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Q Okay. And what work have you done -- you mentioned you

have a doctorate degree. What was the subject of your

doctorate thesis?

A It was called Asbestos an Historical Case Study of

Corporate Response to an Industrial Health Hazard.

Q And what does that title mean? Explain what you were

addressing in your thesis.

A I was looking at the history of knowledge about asbestos

and disease, the published, publicly available knowledge, and

the knowledge that was specifically available to corporations

in this country.

And looking at the corporate response, whatever

documentation I had about the corporate response, I attempted

to analyze this as a case study in public health's failure to

prevent a preventible disease.

Q And your practice, or the field in which you engage your

efforts is called public health; is that correct?

A Yes.

Q And it's aimed at protecting members of the public,

whether they be in a workplace, a home, or any other place,

is that fair?

A Right. My field of toxic substances control, occupational

and environmental health, there's maternal and child

healthcare. There's lots of branches of public health in

trying to identify ways in which people's health can be best

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protected through the way they live and the protection

against things like toxic substances.

Q And as a result of your investigations, your master's and

your doctorate thesis, had you come to form an opinion

concerning Ferro Engineering and Pioneer Sand and Gravel

concerning what knowledge was available to them to protect

users of their products from asbestos exposures?

A Yes.

Q And what is your opinion, sir? Was there information

available so that they could have prevented exposures to

their products by users?

MR. HALL: Objection, leading.

THE COURT: Overruled. It calls for yes or no.

A Yes.

Q Explain your opinion, please.

A Well, there was an abundant body of publicly available

literature on the hazards of asbestos and disease, and

certainly by the 1970s. This included popular writings and

publications in safety publications and legal publications

and lots of others, in addition to a vast body of medical and

scientific literature.

Government regulation was only beginning, however, in the

1970s, but this additionally fueled media interest as stories

started to come out about these new government regulatory

agencies, the Environmental Protection Agency and the

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Occupational Safety and Health Administration, starting to

develop regulations on asbestos once they came along in the

1970s.

Q And you were just in the courtroom when I published

Exhibit 518, "A Chat With a Doctor. Even Asbestos Has Its

Dangers"?

A Yes.

Q Was that information generally available to companies if

they desired to look for it?

A Sure. I mean, the technical information would have been

easily available if they just sent somebody with a high

school education down to a medical library to look up what

was known about the hazards of asbestos. In one afternoon I

think the individual could have come back with quite a lot.

Q And the actual exhibit was found in the files of Ferro

Engineering, do you understand that?

A Yes.

Q So that information certainly was, in fact, available to

Ferro Engineering, correct?

A Yes.

Q Now, was that type of information also available to Lone

Star or its predecessor company concerning the hazards of

asbestos when it was selling it in 1973 to Bethlehem Steel?

A Absolutely.

Q How would they have learned it if they didn't have this

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article in their files?

A They could have picked up the phone and called up the

state health department, the State Department of Labor and

Industries, or whatever it was called, could have sent

somebody down to a medical library who knew how to spell

asbestos and ask the librarian how to look these things up.

If the person wasn't used to or familiar with how to look

things up in the medical libraries, they all had reference

librarians there. The hard part is asking the question.

Getting the answer wouldn't have been hard at all.

Q Was it generally understood that asbestos diseases were,

in fact, preventible in 1973?

A Yes.

Q Now, your thesis addressed an historical case study of

corporate response to an industrial health hazard. What does

the corporate response mean?

A Well, it means -- the fact that there was all this stuff

published in the medical journals begs the question, well,

did American industry know about this? Did the corporations

that manufacture asbestos products and used asbestos

products, how much did they know about the fact that this

body of knowledge, this substantial body of knowledge was

accumulating in medical journals?

And through various documents, some of which were publicly

available and some of which only became available through

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litigation, this picture starts to emerge of companies doing

pre-employment exams, medical examinations of people they

hire, of periodic medical examinations that the same

companies performed on their workers, looking for

occupational diseases caused by worker's compensation claims

involving asbestos disease that some companies had. Medical

monitoring of their workers. Air monitoring. Analyzing the

concentrations of dust in the air where hazardous dust such

as asbestos were used in the workplace. So there were a

variety of ways. The participation in industry trade

associations where companies in the same line of business

would get together to talk about such ordinary things as the

standardization of language in describing their products, but

also the common problems that they were starting to have

because they used asbestos in manufacturing their products

like brake linings or insulation, for example.

And these are the kinds of things that made information

available to companies, and the recording of these documents

correspondence between people within a company about warning

labeling on products and compliance with government

regulations. These documents collectively provide a picture

of the knowledge that was available to companies.

Q All right. So on one hand you've investigated what

doctors and scientists knew as reflected in the published

literature over time; is that correct?

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A Yes.

Q And you've gone back how far in looking at articles of

discussing asbestos disease and what doctors knew?

A The earliest publications were in the 1890s.

Q And in addition to what was publicly known and printed in

those journals, you've investigated what various members of

the industry knew at times; is that correct?

A Yes.

Q And is it fair that different companies reacted different

ways to this knowledge?

A Yes.

Q And did some companies, in fact, do some research?

A Yes.

Q And did some companies, in fact, do some testing?

A Sure.

Q Did some companies, in fact, place warning labels on their

products before 1970?

A A few, yes.

Q Okay. So do you have an understanding, based upon your

review of the corporate response, what a prudent company

could have learned, had they chose to investigate?

A Yes.

Q Do you have an understanding as to what a prudent company

could have learned had they chose to test before 1970?

A Yes.

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Q And do you have an understanding as to what a prudent

company could have done to alert users of the products they

were selling before 1970?

A Sure.

Q And would those methods have prevented the disease,

mesothelioma, 35 years later?

A Well, it might not have prevented every case, but it would

have prevented many cases. Because the risk is proportional

to the amount of exposure that the workers had.

Q Now, I want to go through how you came to these opinions

in just a moment. But before I do that, have you consulted

with me on other cases on the subject of asbestos?

A Yes.

Q And have you consulted with some other attorneys on that

subject?

A Yes.

Q Have you consulted with other organizations on the subject

of asbestos? You mention the government. Correct?

A Right. About half a dozen government agencies of the

federal government.

Q And you mentioned some international countries. You've

done work there too?

A I mentioned that in general without listing a bunch of

countries, yes.

Q Okay. And what are some of the other groups that you

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consulted with in your profession, sir?

A In the last five years I've helped, as a consultant,

drafted documents published by the World Bank and the World

Health Organization on asbestos, mainly on the subject of

asbestos substitutes in fiber cement construction materials,

which constitutes the main use of asbestos in the world

today.

Q All right. Now the jury has heard some mention of the

Consumer Product Safety Commission?

A Yes.

Q And its ban on joint compounds in 1977?

A Asbestos-containing joint compounds.

Q Yes, sir. Thank you for correcting me. Did you play any

role in that, sir?

A I did.

Q Explain that to the jury, please.

A I had already become an independent consultant. By the

summer of 1975 Dr. Selikoff's group published an article in

Science Magazine noting the very high levels of exposure

associated with the sanding and sweep-up of these products in

the ordinary course of their use. Selikoff also gave the

media the names of the products he had tested, including some

which didn't have any asbestos at all. And when I read this,

I went to the people at the Natural Resources Defense Council

with whom I worked and I said, we should petition the

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government to ban asbestos in these products. We then

proceeded to draw up a petition, legal and scientific, and

filed that. And eventually proceeded to get asbestos banned

in these products in 1977 by the Consumer Product Safety

Commission.

Q And in essence what was the basis for your request that

asbestos be banned? Was it just because you didn't like it?

A The basis was the levels of exposure were quite high. The

peak exposures exceeded the short-term exposure limit in the

asbestos regulations, the 1972 OSHA asbestos regulations. So

we anticipated there would be very high exposures and

correspondingly a number of people would get cancer from

these exposures, just consumers, let alone workers who would

be at even greater risk individually.

And so we felt -- and because there were products on the

market that were already asbestos-free serving that purpose,

we felt that this was an open-and-shut case for government

regulation.

Q And that agency, the Consumer Product Safety Commission,

had authority to regulate goods used in the home by

consumers, correct?

A They did.

Q They didn't have the authority to regulate the workplace

like OSHA, is that fair?

A That's correct.

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Q And joint compounds are sometimes referred to as joint

cements; is that correct?

A Yes, I think so.

Q And what is a joint cement? Describe that to the jury.

A It's a patching compound that's used when you have sheets

of drywall and you want to make it look like a smooth wall.

So where the two sheets are nailed up and they're against

each other, then along that crack you want to put some kind

of material that you can then sand smooth so that the whole

thing looks flush after it's painted over.

Q And some of the joint cements were sold in bags; is that

correct?

A Yes.

Q And you would add water and mix it?

A Some were sold as powders like that. And others were sold

already mixed with water, so that at least the hazardous

operation of mixing it wouldn't be added to the other

hazardous operations associated with the use of the product.

Q But the powdered ones you would add water to them and they

would harden, correct?

A Yes.

Q And were they similar to asbestos insulating cements?

A Yes.

Q How were they similar?

A Well --

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MR. HALL: Objection, Your Honor. Beyond the scope

of this particular witness's expertise.

MR. HART: I can establish a foundation, Your Honor,

if you would like.

THE COURT: Why don't you go ahead.

Q Obviously you knew about joint cements, correct, sir?

A Right.

Q Do you have an understanding, from a public health and

toxicological perspective, the composition of asbestos

insulating cements?

A Yes.

Q Tell the jury how asbestos insulating cements and joint

cements were similar. And if they were different, tell us

that, too.

MR. HALL: Same objection, Your Honor.

THE COURT: Overruled. You may answer.

A Well, sometimes water would be added to these products

when they were applied. They'd certainly be smoothed over

the various shapes as a kind of a semi-solid type of material

that could be made into whatever shape, if it was a pipe

elbow or something like that. So in that sense it could be

shaped by hand in a similar way when the material was being

used. And both of these types of products tended to contain

about five to ten percent of asbestos.

Q Okay. They both had similar amounts.

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Did they have similar qualities in terms of potential

dangerous exposures when they're being mixed?

A Yes.

Q And the Consumer Product Safety Commission did not have

authority to regulate the workplace, correct?

A Correct.

Q Were there efforts made to ban asbestos insulating cements

in the workplace?

A They were actually banned as an air pollution hazard by

the Environmental Protection Agency. The insulating cements

and the molded insulation products like pipe-covering

asbestos was banned in those products in 1975.

Q Okay. Now, what -- have you been asked to teach

concerning your profession, sir?

A Yes. From time to time I'm asked to speak at schools of

public health, medical schools and other universities.

Q Do you sometimes lecture outside the school setting on

your subject?

A Yes. I appear from time to time at the scientific

conferences, that sort of thing.

Q Okay. Now, how much of your time in terms of percentage

of your time is spent doing work like you're doing today?

A I average about one trial a month. It's been that way

since I started doing this in 1979.

Q And in between the trials do lawyers for the other side

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that have, from the other side, do they sometimes ask to take

your deposition?

A Yes.

Q And you give depositions when requested?

A I do.

Q Now, what -- how do you spend the rest of your time?

A International public health work. I work with people in a

lot of countries, India, Brazil, and other countries. Last

year I spent the last month of the year in India talking to

governmental officials about restricting the use of asbestos

and banning asbestos. So the use of asbestos is still pretty

much out of control in major countries, all over Asia in

particular.

Q Have you been successful in some of your efforts

internationally?

A Yes. We've gotten asbestos banned in over 50 countries.

Q How do you support yourself in doing your international

work concerning asbestos?

A Mainly because I also get involved in these cases. So I

can spend most of my time working on things that pay little

or nothing.

Q Now, have you published articles dealing with asbestos

hazards?

A Yes.

Q Tell us about those please, sir.

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A I've written about the international scope of the problem

of asbestos, about the history of the asbestos problem, about

occupational exposure limits for asbestos in the workplace

air, published in medical and scientific and public health

journals.

Q All right. And have you published any books on asbestos?

A Yes.

Q Is this one of them?

A Yes.

Q What is the title of this?

A The book is called "Asbestos, Medical and Legal Aspects".

And you're holding the 5th edition.

Q What does it mean, 5th edition?

A The book was largely identical to my doctoral thesis and

it was published in 1984. And it's been revised and expanded

four times with the additional emergence and inclusion of

historical information about the corporate response to the

problem of asbestos.

Q All right.

MR. HART: Your Honor, may I approach the witness?

THE COURT: You may.

Q Did I just hand you a copy of your book, doctor?

A Yes.

Q Tell the ladies and gentlemen of the jury basically how

the book is constructed and what you're trying to convey in

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your book, sir.

A Well, in the beginning I talk about the history of

knowledge about asbestosis. And the second chapter is about

cancer and asbestos. And then the third chapter is about

compensation. Fourth chapter is about standards and efforts

to implement public health protection against asbestos

exposure. Then I talk about asbestos products in particular

as opposed to asbestos mining and asbestos manufacturing. I

talk about product use and the literature on the hazards of

asbestos product use.

There's a chapter, one chapter contributed by someone else

on the availability of non-asbestos substitutes in insulation

and other products going back a hundred years or more. And

then there is chapters on corporate knowledge, on bystander

exposure household and neighborhood, and bystander

occupational exposure. Then there's kind of a wrap-up --

well, there's one chapter on the methodology I use, the

sources I consulted in doing this kind of research. And then

a final chapter on where we stand today, which also had to be

revised a number of times over the 20 years that the five

editions were written.

Q Now, let's talk about the first subject you had there, the

historical development of knowledge about asbestos. The jury

has heard Susan Raterman talk about the Merewether and Price

paper of 1930. Are you familiar with that?

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A Yes.

Q What information was available before that, just

generally, that asbestos was dangerous?

A There have been publications of the chief inspector of

factories, government reports in England, identifying

asbestosis, or rather lung scarring from asbestos as a cause

of lung disease, potentially fatal lung disease in a number

of workers. There were reports in 1917, 1918 in U.S. medical

journals, radiology journals, where doctors were starting to

use the chest x-ray as a way of diagnosing lung disease, and

publishing the chest x-ray films of workers exposed to

different types of dusts, including asbestos.

Also 1918, the U.S. Government published a report on

mortality from dusty trades. It was actually written by an

insurance actuary named Frederick Hoffman. Hoffman wrote

about deaths in the asbestos industry in England from lung

disease, and said it was generally the practice of American

and Canadian insurance companies to not sell insurance to

asbestos workers because they were seen as bad risks. It

wasn't until the next decade that the word asbestosis appears

in the medical literature, in the 1920s.

And then there are a number of cases published in the

British Medical Journal, and this is what led the factory

department in Britain to do the Merewether survey where they

did, for the first time, look at the prevalence of asbestosis

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among people who were actively employed in the asbestos

industry to see how widespread this disease was among people

that were working in the industry.

Q And what did they find out concerning the prevalence of

the disease?

A They found that, overall, 26 percent of over 300 workers

examined had asbestosis. They found that none of the people

with less than five years had asbestosis. And so Merewether

wrote that this was a disease that had what he called a

maturation period that, no matter how massive the exposure

was, it was a delay of years before anybody would develop any

signs of illness.

And Merewether also advised, because of this delayed

lethal danger for a product that had no warning properties,

that the workers be educated to what he called a sane

appreciation of the risk.

He recommended various -- in this report they also talked

about the dust controls in general and specific to a number

of industries and products.

Q And what is the term we use today to describe what Dr.

Merewether in the 1930s called the maturation period?

A Latency.

Q Latency. So that was known back then?

A Yes.

Q And you indicated that Dr. Merewether reported that the

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asbestos exposures had no warning properties?

A He didn't put it that way. But he said that the workers

needed to be educated to a sane appreciation of the risk.

Q Okay. Sane appreciation of the risk. And what does that

mean?

A Well, that means that just because you work with this

stuff for years and it hasn't hurt you doesn't mean it isn't

going to hurt you from what you've already breathed, or that

continuing exposure isn't going to be a danger to you. And

just because it doesn't give you headaches, nausea, visual

disturbances or eye irritation or anything else, if it seems

just like the dust in a carpet in this courtroom, to you,

that doesn't mean it's really that harmless.

Q All right. And so there was no -- nothing to warn a

worker that the dust was not innocuous?

A Nothing about the dust, nothing intrinsic to the dust

itself. It wasn't like some of the solvents you have when

you apply paint and other things that let you know that

they're bad for you. They can hurt you.

Q So I've kind of summarized things you've said here a

little bit -- the jury has seen me do this -- I've got your

name at the bottom of this page. So we're talking about Dr.

Merewether and this maturation period. There are no warning

properties that you just described.

A Right.

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Q And warned workers about the sane appreciation of the

risk. Is that a fair summary of what you just testified to?

A Yes.

Q When Susan Raterman was here, she described that the

second part of Dr. Merewether and Price's paper discussed

some methods of prevention. Do you recall that, sir?

A Right.

Q And she outlined these items here. Are those accurate to

your recollection?

A They are.

Q And she talked about education and warning. Is that what

you were referring to, both Dr. Merewether and the engineer

Price agreed that workers need to be told about the hazards

of asbestos?

A Right. That's fundamental. If you want workers to wear

respirators and if you want workers to do other kinds of

things that might slow down their work in order to make sure

that the dust collectors are properly connected and there

aren't obvious leaks in the system, you need to tell them how

harmful this stuff is and how it can hurt you in order to get

them to take seriously the need to observe these precautions.

Q How widely spread were Dr. Merewether's and Price 's

findings?

A This report was among the most widely cited publications

in the literature on asbestos and disease. It was the first

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attempt to see how widespread the disease was among people

occupationally exposed to asbestos. It was the subject of

editorials in the biggest medical journals in England, the

British Medical Journal and The Lancet, the world's oldest

medical journal. They are in every medical library I've ever

walked into.

Q Even in the United States?

A I'm talking about the United States in particular, yes.

Q Were Dr. Merewether and Price's paper reprinted in the

United States?

A That's another thing. Merewether published a largely

identical paper in the Journal of Industrial Hygiene

published in the United States a few months after submitting

the Merewether and Price report to the British Parliament.

So he was actually good enough to come over here and publish

something substantial describing his findings.

Q And so the Journal of Industrial Hygiene, was that where

someone would go to look at methods of protecting workers

from industrial toxins?

A Right. It's a journal that was published since 1919 in

which I found in a number of medical libraries, major medical

institutions around the country.

Q Now, were the same findings that Dr. Merewether recorded

and the same methods of preventing disease also being

reported elsewhere during the 1930s?

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A Yes. There were surveys in 1935 in the United States

published by the Metropolitan Life Insurance Company,

published by the state of Pennsylvania in 1935, finding 25 to

over 50 percent of the workers examined in the asbestos

industry had asbestosis.

There was a similar report by the U.S. Public Health

Service in 1938, doing air sampling in the plants and medical

evaluations, and recommending what they call a tentative

limit for exposure to dust in such workplaces in order to

limit the risk of asbestosis.

Q Were there, in fact, textbooks published discussing the

diseases caused by asbestos in the 1930s?

A Yes. The one you are holding was published in 1938, it's

called "Silicosis and Asbestosis". And it was edited by Dr.

Anthony Lanza of Metropolitan Life and the author of articles

on asbestosis.

Q And did Dr. Lanza report in this publication how workers

could be exposed to asbestos?

A Well, he talked about the industries that used asbestos

and the nature of its being an inhalation hazard.

Q And were asbestos cement products being discussed by Dr.

Merewether and Lanza in the 1930s as being a potential source

of exposure to workers?

A Yes.

Q How about asbestos mill board or asbestos board-type

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products?

A Yes, the same.

Q Were any other diseases, besides asbestosis, being

discussed in the literature and in Dr. Lanza's book in the

1930s?

A Yes. Starting in 1935 there started to appear case

reports of individuals who had died with both asbestosis and

cancer of the lung. And the authors of these reports

published in the United States and England raised concern --

lung cancer was a lot less common then than now -- and they

raised concern that maybe the asbestos was capable of causing

cancer as well as this lung scarring disease, asbestosis.

Then by 1938 a German author titled his paper, "The

Occupational Cancer of Asbestos Workers." That article was

published in abstracts or summaries, English-language

summaries in the United States by the end of the year in

1938.

The Lanza book you were holding also has a chapter by the

author, by Gloyne, G-L-O-Y-N-E, a Dr. Gloyne. And he was the

author of two reports in the literature by 1938 of asbestos

and cancer of the lung in workers that he had seen at

autopsy.

Q And he discussed that relationship between asbestos and

the ultimate disease, cancer?

A Right. That was mentioned in his chapter in Lanza's book

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in 1938.

Q So would it be fair to summarize, by the end of the 1930s

it was well established that asbestos could cause disease and

death in workers through asbestosis, and there was beginning

to be indications that cancer was a consequence of exposure

to asbestos?

A Yes. More in the beginning the Germans were already

accepting it as a compensable occupational disease according

to an article published at the beginning of 1939.

Q For like workman compensation purposes?

A Right.

Q So if you worked with asbestos in Germany and developed

lung cancer, you were entitled to compensation because they

believe they were related?

A That's what was reported in the beginning of 1939 in the

most common journal in Germany, the German Medical Weekly.

Q And was that information in Germany -- I guess that's the

beginning of the rise of Nazism and all of that -- but was

that type of information available in the United States?

A Yes. Well, some of the German literature itself was

available in the United States, and even in the middle of the

war, by which time German doctors were making a link between

mesothelioma and asbestos exposure. In 1943 this was

published in Germany. Within nine months an abstract or

summary appears in the Bulletin of Hygiene published in

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England. They must have been bouncing the journals through

Switzerland or Sweden. But the Brits were reading those in

the middle of World War II and publishing abstracts or

English-language summaries of articles in the German

literature.

Q So the first mention of a disease we now know as

mesothelioma was presented in 1943?

A Well, if that was the first time that asbestos was linked

to mesothelioma, it was a report of 29 deaths in which

asbestosis had played a role. And the doctor reported that

four of them involved lung cancer, two more involved primary

cancers of the pleura. And he said both the lung cancers and

the pleural cancers were, in his opinion, occupational

cancers.

Q All right. And did -- in the United States, what

publications were there concerning asbestos and its

relationship to cancer?

A The Journal of the American Medical Association had an

editorial in 1944 listing asbestos as one of the known or

suspected causes of occupational cancer. In 1949 the Journal

of the American Medical Association had an editorial just

about asbestosis and cancer of the lung. There they reported

on figures published by the British Factory Inspector earlier

that year, to the effect that the Brits were aware of 235

deaths in which asbestosis had played a role, and of these,

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31 of these men, individuals, had cancers of the lung and

pleura, or 13 percent. The normal rate of lung and pleural

cancer in general autopsies was about one percent, the

editorial wrote, so this was a strikingly high rate of the

cancers of the lung and pleura among individuals dying who

had asbestosis. In other words, you would have expected two

or three out of 235, and there were 31 such cases.

Q So that was an unusually high incidence?

A Right. And if you do statistics, you see that happening

is a chance occurrence like flipping a coin a number of times

and getting heads every time. Well, it's less than one in a

million.

Q And, again on the screen, if you could look on your screen

there, doctor, have I correctly summarized your reports in

the literature here? Mesotheliomas first discussed in 1943,

the Journal of American Medical Association discussed

asbestos as an occupational cancer in 1944. Then in 1949 the

same journal discussed asbestosis and cancer and called

particular attention to that?

A These are just highlights. Again, by the end of the '40s

there was over 80 publications that talked about asbestos and

cancer of the lung.

Q What is an epidemiological study?

A That's a statistical study of a defined human population.

So these are the kinds of studies we construct in order to

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see if people who drink a lot of coffee are at risk of some

kind of disease as a result of that. So you try to

construct, just briefly, a study group that has exposure to

the exposure you're trying to study, and a group of people

that's as identical as possible except for that exposure.

Then you try and do some kind of estimate looking at the

actual morbidity or mortality of both the exposed group and

the control group. You then do statistics on your findings

to see whether there's a significant excess or not of any

kind of risk.

Q And a lot of the studies you've talked about so far dealt

with doctors and scientists looking at people working in

factories, is that correct?

A Right.

Q In the 1940s were there any discussions about cancer

occurring in people who didn't work in a factory but used an

asbestos product, maybe an insulating product or something?

A Yes. There was a report in 1942 in, I think, the Archives

of Pathology, a couple of doctors in New York reported that

they had seen two cases of asbestosis in five years in

running their pathology clinic and hospital. And these two

individuals who had asbestosis both had cancer of the lung.

So the authors of this report thought that was quite

striking, and they referenced the earlier literature, most of

it from our country, England, and Germany, and said that it

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looks like lung cancer is an occupational disease. People

who work with asbestos. And these two individuals were

described as career insulation workers. Their exposure came

from pipe covering and other kinds of insulation product.

Q Let's go to the 1950s, if we can. You told us by the end

of the '40s there were eight publications just on asbestos

and cancer and there were others discussing how asbestos is

either dangerous or could be prevented; is that clear?

A Right.

Q So the 1950s, were there studies of disease in, for

example, asbestos miners?

A Yes.

Q Tell us about that, please.

A Well, there were reports of cancers of the lung and pleura

among people who mined asbestos. There was a report

published in 1952, and two of the individuals named were

indicated had minimal asbestosis, but they had developed

pleural mesothelioma. So this was one of the earliest

reports of mesothelioma in people mining chrysotile asbestos

in Canada or were exposed to asbestos at the chrysotile

mines. One actually was the treasurer of one of the mining

companies.

Q So it was a --

A His exposure was from 29 years of office work at an office

at an asbestos mine.

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Q His job wasn't to go down and dig the rock out, his job

was to work in the office?

A Right.

Q And he still developed mesothelioma?

A Right.

Q What other developments in the 1950s occurred concerning

the knowledge of asbestos and cancer?

A There were a couple of epidemiology studies published in

this country and in England. One was published in the

American Journal of Public Health in 1954 by Breslow and his

coworkers. They interviewed a little over 500 men with lung

cancer, asked them about every job they had ever had, and

interviewed a control population of men of similar age

distribution who didn't have lung cancer to see how the two

groups compared, and found that there was a statistically

significant association with a collection of jobs that the

authors made in designing their study because of their

suspicions about asbestos.

And this group was called: Asbestos workers, steamfitters

and boilermakers. And so mostly this is people -- well,

there are different exposures to asbestos. The last two

groups were mostly from insulation products.

Q Alright.

A And they found association, even when they corrected for

smoking; they were now starting to separate out smoking and

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asbestos as causes of lung cancer. And this study at least

they said, even correcting for the smoking histories, we

still find a statistically-significant association between

these jobs and lung cancer risk.

Q Okay. So many of the earlier articles we discussed were

doctors writing up and having published in peer-reviewed

journals their experiences that their patients had cancer

after working with asbestos, is that fair?

A Right. Case reports.

Q Okay. And some of the doctors even were able to collect a

whole series of case reports and publish those, like Dr.

Gloyne that you mentioned and others?

A Right.

Q And now we're talking about a different type of scientific

study, an epidemiological study which uses this statistical

analysis, is that right?

A Right.

Q To make sure that these occurrences are real, is that

fair?

A Well, to the extent that you can, you can never really

prove cause and effect in a technical scientific sense, but

you can show a very strong association between the suspected

cause and the effect, which in practical terms amounts to

proving causation. What I mean -- just by way to illustrate

that -- you can prove that people who have exposure to like

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-- you might see a group -- if you're not seeing about the

smoking histories, you might infer that something is causing

lung cancer. And if you don't know that the one group smokes

a lot more than the other group, then you might miss the real

cause effect. So you might have a false relationship in

terms of associating something else with the lung cancer

risk.

Q So these studies were getting to be more precise in

looking and trying to determine what was the hazard that was

causing this increased number of cancers, correct?

A The British study found ten times the risk of lung cancer

in asbestos workers, factory workers, than they would have

expected from men in the general population on which they had

vital statistics. And there was no way you could figure that

the people who worked with asbestos smoked ten times as many

cigarettes as the men in the general population.

Q And when was that, sir?

A That was published in 1955 and received a lot of attention

in the medical literature.

Q So the British study, that was called an epidemiologic

study?

A Yes.

Q Did it control for smoking?

A No. In this case the men had died, and usually it's very

difficult to try and get any kind of smoking histories, let

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alone reliable smoking histories, from surviving relatives.

The Breslow study in 1954 they actually were interviewing the

men who were still alive who had lung cancer and they could

get reliable information.

Q And they had some smoking information there?

A Yes.

Q What did the Breslow study find?

A They found it was a statistically significant association

between lung cancer risk and the occupations of being an

asbestos worker, steamfitter or boilermaker.

Q They found an increased risk for occupations?

A Right.

Q And those occupations were not people who worked in a

factory but people who worked with asbestos products; is that

correct?

A Primarily, yes. The latter two groups clearly were people

who worked with asbestos products. And the group they called

asbestos workers I suppose could have included people who

worked at asbestos manufacturing plants or people who worked

with asbestos products, especially the insulators often

referred to themselves as asbestos workers.

Q But the latter group, you said they were boiler riveters?

A Boilermakers and steamfitters.

Q Did those people work with high temperature vessels that

had insulation on them that contained asbestos?

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A Yes, they did.

Q Did they work with asbestos that was placed on very hot

surfaces?

A Sure.

Q And even though the asbestos was placed on those very hot

surfaces, did those people develop cancer according to Dr.

Breslow's study?

A Yes. And in the course of applying and removing and

maintaining the insulation on these pipes and vessels, they

got the exposures to the dust and this was linked to their

lung cancer.

Q Okay. This is boilermakers. And what was the --

A And steamfitters.

Q Steamfitters. Thank you. Hot insulation?

A Yes.

Q Is that fair?

A Thermal insulation, insulation to keep, to reduce heat

losses and protect workers from getting burned and getting

contact with hot surfaces.

Q Going back to what Dr. Merewether and Mr. Price said in

1930 were the methods of preventing asbestos exposure being

discussed and promoted.

A Yes.

Q Was that a subject of some of these articles, why they

were reporting the disease, so that future cases could be

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prevented?

A Right. Sometimes the doctors would point out that we

don't have any way of treating people to make them well after

they develop asbestosis and cancers from asbestos. So the

only thing that's really going to work is prevention of the

exposures.

Q Now, let's focus on the type of cancer, mesothelioma. How

did the knowledge about that continue to develop in the 1950s

and into the 60s?

A There were a number of cases reported. I mentioned the

one in Canada. In 1955 in the epidemiology study in England

also included about one or two cases of mesothelioma. And

this cohort, they were counted as lung cancer, but they were

pleural mesothelioma if you looked carefully at the article

and records.

Then there was a large number of cases, 33 cases of

pleural mesothelioma reported from South Africa in 1960. And

32 of these individuals had a history of occupational or

environmental exposure to asbestos. This was reported in the

article. So the author is making the connection between the

asbestos exposure and the mesothelioma.

Most of these individuals worked in areas where

crocidolite, or blue asbestos, was mined. Not all of them.

Q Was that one of the amphibole-types of asbestos?

A Yes, it is.

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Q The jury has heard that we have amphiboles and we have

serpentines, and the chrysotile is the serpentine asbestos?

A Right.

Q That's where the miners had gotten mesothelioma, correct?

A In the 1952 report, right.

Q I'm pointing to that one. And now we've got records that

the amphibole family of asbestos is causing mesothelioma in

the 1960s; is that correct?

A That's right.

Q Tell us again what occupation these 33 people had?

A Well, some of them were people that worked at the asbestos

mines. But they also included a worker whose exposure came

from maintaining insulation at an explosives factory. They

did a lot of mining in South Africa, so also manufactured

explosives. There was another who got exposure to asbestos

from maintaining the insulation on steam locomotives. That

was asbestos insulation, but we don't know what type of

asbestos.

Q Any environmental exposures?

A Lots of them. Many of the cases were people whose only

exposure was from living around the mines. So where the

mine -- there was some blasting associated with the mining,

but there was also the mine wastes, or tailings as they were

called, were often used to surface unpaved roads so you had

cars and buses driving over these roads and this kind of

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generalized air pollution associated with the mining of

asbestos in this area.

And so this set off a lot of concern about mesothelioma,

and people started looking in places like shipyards and

finding a lot more cases throughout the shipyard trades. The

first of those publications was in 1962 in the British

Medical Journal.

Q And in the United States were there reports of

mesothelioma in 1960 among people who used asbestos

insulation?

A Yes. There were cases reported from the oil industry,

from Texas, where workers were exposed to asbestos from the

insulation. And it was tremendous amounts of insulation used

in pipe insulation and so forth at the oil refineries.

Q And the insulation was used in those parts of the oil

refineries where the temperature was very high, is that

correct?

A Yes. Some of the temperature demands were quite high in

the oil industry.

Q So would it be fair to call that high-temperature

insulation?

A Sure.

Q Then you had mesothelioma, and that was in Texas?

A Sure. And they referenced in that article in 1960

publications of mesothelioma in connection with asbestos from

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four countries. So it starts to indicate a broadened

awareness around the world about this risk.

Q All right. And does this summary kind of bring us up to

the conference that the ladies and gentlemen heard about in

1964 that Dr. Selikoff conducted?

A That and Selikoff's article published in the Journal of

American Medical Association earlier in 1964.

Q What did he publish before the meeting?

A He published an article on and epidemiological study. He

had obtained the cooperation of the insulation workers union

locals in New York and New Jersey and they gave them the

names of 632 men that were members of the union locals as of

the beginning of 1942.

What he did was a follow-up study to see how many of these

men had died, and analyzed their mortality pattern. He found

that 255 of the men had died by the end of 1962, and that he

would have expected, based on the vital statistics and age of

distribution of these men, that there would be six or seven

deaths from cancers of the lung and pleura in this cohort of

men. Instead, there were 45 deaths from cancer of the lung

and pleura. And there were also excess deaths from

peritoneal mesothelioma. None of those would have been

expected. That's a very rare disease. And excess deaths

from gastrointestinal cancer. Over 12 deaths from

asbestosis.

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So he documented really an appalling mortality in this

trade, in this study that he did, this mortality study that

was published in the most-widely available medical journal in

the United States. Then he organized this conference later

that year in 1964.

Q So his publication was 1964?

A Yes.

Q And you said he documented an appalling mortality in the

industry; is that correct?

A Right.

Q And were most of these workers a member of a trade that

applied insulation to high-temperature surfaces?

A Right. Basically that group of the construction trades

that dealt with thermal insulation.

Q Thermal means heat insulation?

A Right.

Q This insulation is designed to go on high-temperature

vessels?

A Right.

Q And that was exposure that Dr. Selikoff documented as

creating an appalling mortality?

A Right.

Q Now, was his publication widespread?

A Well, it was as -- it was published in the most widespread

medical journal. But also Selikoff did interviews with the

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media. And so he -- there was an article in the New York

Times in October of 1964 specifically about mesothelioma.

And then later that month the conference was held. But

Selikoff continued to do a lot of media interviews to try and

raise public awareness back in the 1960s when there was no

government regulation of any of this. There was no EPA.

There was no OSHA. No Consumer Product Safety Commission yet

created.

Q Even though those agencies, those government groups had

not been created for public-health purposes, was there a

responsibility for sellers of dangerous products to provide

means for workers to protect themselves?

MR. HALL: Objection, leading.

THE COURT: Sustained.

Q Doctor, would you please explain to the ladies and

gentlemen of the jury what responsibility you believe a

seller of asbestos products would have to users of its

products, based upon information available through the mid

1960s?

MR. HALL: Objection, calls for a legal conclusion.

THE COURT: That does sound like it's a legal

conclusion, counsel.

MR. HART: He's an expert and he's permitted to give

opinions that go to the ultimate issue in the case.

THE COURT: He's not permitted to give legal

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opinions.

Q Let's don't talk about legal ramifications. Let's talk

about, are you familiar with the public health obligations

that developed over time concerning these industrial hygiene

issues?

A Sure.

Q Speaking from that perspective -- we're not talking about

the law, His Honor will instruct the jury on that -- from a

public-health perspective explain the responsibilities from

public health officials.

A Well, workers, in order to protect themselves in the use

of hazardous products, they needed to know about the hazards

associated with the products. If a manufacturer knows

there's a hazardous ingredient that they use in their product

to which the worker is going to have exposure in the

foreseeable and ordinary use of the product, then the

manufacturer of the product should tell the workers about

this so that they can at least minimize their risk associated

with the use of the product. That's just common-sense basic,

moral and ethical obligations that we have in society.

And they're also fundamental elements of public health

protection that when manufacturers are putting products in

the channels of commerce that have non-obvious delayed lethal

dangers, like this, workers need to be told about this if

they're going to be able to protect themselves to any degree

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against these risks.

MR. HALL: Move to strike the nonresponsive part of

the answer.

THE COURT: The motion to strike will be denied.

MR. HART: Thank you, Your Honor.

Q Doctor, was information available concerning the hazards

of asbestos-containing board products as of the mid-1960s?

A Yes.

Q And was information available from a public-health

perspective where sellers of those products could have

provided methods for users to protect themselves?

A Yes.

Q What about high-temperature asbestos insulating cements?

Were hazards of those products known by the mid-60s?

A Sure.

Q Were methods available for the sellers of those products,

could have provided to users so that the users could have

protected themselves?

A Yes. Selikoff, when he started looking into this in the

'60s, said they can at least do things like mixing inside a

plastic bag rather than doing it in an open trough to reduce

the amount of dust workers get when you take insulating

cement and mix it with water before you're going to make it

up and apply it.

Q All right. And from a public-health perspective do

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employers have certain responsibilities?

A Sure.

Q Do sellers of toxic products also have responsibilities in

addition to employers, from a public-health perspective?

MR. HALL: Objection. Leading.


A Yes, they do.

Q All right. And tell the jury why sellers of products,

from a public-health perspective, have responsibilities if

the employers already do.

A Because as an intentional redundancy in efforts to protect

public health, where you might have regulations where in the

1970s we finally had some OSHA regulations that mainly

applied to employers to protect workers from hazardous

materials, particularly asbestos. In the real world you

can't expect that every employer is going to know about all

the rules and regulations and fully comply with all the rules

and regulations about this.

And so as a backup, just in case the employer doesn't do

everything employers should do, you've got the requirement in

the OSHA regulations from 1972, for example, that sellers of

asbestos-containing products also warn people about the

hazards associated with the use of these products, and that

way, even if the employer is completely negligent, the worker

has the opportunity to know that this stuff is dangerous and

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maybe, either by taking it up with the employer or just being

careful about the use of the product, reduce his exposure to

dust.

Q Doctor, based upon your experience in public health, where

have you learned that employers get most of their information

about the hazards of the products used on the job site? Is

it important to get it from the sellers of the product?

A It's certainly important. It's not the sole source or

necessarily the most reliable source, but it's certainly an

important source of information to employers who might not

even know what's used in the product and really rely on the

sellers of the product to tell them that its got benzene or

asbestos in it, because that might not even be disclosed on

the label or in any other brochures that the manufacturers

provide to the users of the product.

Q Well, was it recommended from a public-health perspective

that sellers of products at least label the toxic ingredients

in them?

A Sure. People have been writing about that since the

1930s. If you're selling a drum that's 95 percent benzene

and you call it GX-42, that's not giving people much of a

chance to protect themselves from benzene poisoning. You

need to be a little bit more forthcoming about the hazardous

nature of the materials in your products.

Q Let's go to the '64 conference. Did you indicate earlier

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you knew Dr. Selikoff?

A Yes.

Q You worked with him on a professional basis?

A Yes.

Q And to deal with asbestos also?

A Sure. Like when Selikoff published about the joint

compounds, then we followed through in getting asbestos

banned in joint compounds. That's an example of working

together.

Q And you would speak with Dr. Selikoff, have conferences

with him about public-health issues and asbestos, is that

fair?

A Right. Starting in 1971 until he died in 1992.

Q Now, the jury has heard a little bit about the conference

in 1964 that Dr. Selikoff sponsored. Tell the jury the

purpose of the conference please, sir.

A The purpose was to gather people from around the world who

were knowledgeable about asbestos and disease to publish a

complete documentation, fairly relatively complete

documentation of what was known. And so there were a large

number of papers that were presented, people came from --

scientists from all over the world. There were also people

from asbestos companies and chemical companies and oil

companies and others, who were in attendance at this

conference. It was a three-day conference held at the

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Waldorf Astoria Hotel on Park Avenue in New York City.

Q I'm showing the cover of the publication to that

conference, is that correct?

A Yes.

Q And it lists the authors beneath the chairmen, Dr.

Selikoff and Dr. Churg?

A Yes.

Q The first author is C.G. Addingley. Who is he?

A He was associated with a company called British Belting

and Asbestos.

Q Was he a doctor?

A I don't think so. But I'm not sure. He might have been.

I think he -- he was involved in management in dealing with

asbestos as a health hazard in some way for that company, and

commented on the levels of exposure that could be dangerous.

Q So the participants of this conference involved both

doctors, corporate management, as well as scientists,

engineers and things; is that correct?

A Right, correct.

Q And Dr. Selikoff is an author here, and other people like

M.L. Newhouse. Who was that?

A Muriel Newhouse was the author of new information that was

made available at this conference showing that mesothelioma

was statistically significantly associated not only with

occupational exposure to asbestos, but household contact

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61

exposure. And in the absence of occupational exposure and

household contact, neighborhood exposure was also

statistically significantly associated.

This was based on an epidemiological study of 76

individuals that had died with mesothelioma, interviews with

their survivors, and interviews with 76 patients who were

still living who were of the same age and gender as the 76

mesothelioma individuals that had died, to have a comparison

of their histories of asbestos exposure through interviews.

Q And this person, the second-to-the-last row, J.C. Wagner.

Who is that person?

A Wagner had published the report of the 33 cases of pleural

mesothelioma from South Africa. And at this conference he

presented a case of a woman that had died from mesothelioma

at the age of 55. And her only exposure was playing as a

child on the asbestos waste dumps on the way home from school

when she lived in the asbestos mining district before she was

-- at the age of 5 she moved from that, then 50 years later

mesothelioma.

THE COURT: Ladies and gentlemen we'll take our

morning recess at this time. We'll be in recess for

approximately 15 minutes.

(The proceedings recessed.)

Q Dr. Castleman, we were talking about the Selikoff

conference and you explained the purpose of it and some of

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the people who attended there. Are you familiar with

discussions that were held in 1964 at the Selikoff conference

concerning the -- whether or not there was a safe level of

exposure to asbestos?

A Yes. There was at least one paper and some definite

discussions as well about that.

Q And what was the generally -- based upon the discussions

in the paper and -- I mean, discussions in the book and

paper, what was the generally recognized views toward whether

there's a safe level of exposure to asbestos?

A They were very skeptical. Management people from

Addingley, from British Belting and Asbestos, and Wells, who

is not named on this cover, but who was a company doctor for

Uniroyal -- it was called, I think, United Rubber Company at

the time -- they had an asbestos textile plant in Georgia.

And both these individuals commented that the guideline of

5 million particles per cubic foot of dust which had

initially been recommended in the 1930s for asbestos control

was not scientifically adequate and that only zero, really

nil exposure, only that was really safe.

Q And what disease were they looking at when they were

saying zero was the only safe level of exposure?

A In the case of Wells, he was talking about asbestosis.

But with the dominant concern -- he was actually talking

about how, you know, they found lower and lower levels of

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63

exposure associated with this through their actual experience

at their plant. But in general the conference focused a lot

on lung cancer mesothelioma as asbestos diseases for which

nobody was saying there was a safe level of exposure.

Q Now, right here in the center, this gentleman here, W.C.

Hueper. Do you see that?

A Yes.

Q Who was Dr. Hueper?

A Dr. Hueper was the chief of the environmental cancer

section of the National Cancer Institute of the United

States. He worked for the federal government. He had

published hundreds of papers on occupational and

environmental cancer and had named asbestos as a cause of

occupational cancer since the early '40s in dozens of

articles.

Q All right. And had he been the author of some of those

articles published in the Journal of the American Medical

Association you described earlier?

A Yes.

Q All right. And you say he's the father of occupational

cancer?

A No. I would say he was the most published author --

Q Author. Okay.

A -- in the world. Medical and scientific literature in the

'40s, '50s and '60s on occupational and environmental cancer.

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64

He published a great deal. And these were largely review

articles. So they would review the state of knowledge

through time. And I'm saying that he mentioned asbestos as a

cause of cancer in a great many articles starting in 1943,

'42/'43.

Q Okay. He was an author not a father. I misheard you.

So, when he participated in 1964 in this conference,

did he turn his occupational cancer attention to asbestos

specifically?

A He did.

Q And what did he publish in this book and what did he

discuss with the participants concerning cancer from

asbestos?

A Oh, he indicated through presentations and text that

asbestos in a very wide-range of product uses, including

asbestos cement and insulation products, were hazardous to

people. That workers using these products were in danger of

developing cancer from asbestos.

Q Did he do a specific presentation where he focused on

potential sources of exposure to asbestos?

A Right. I mean, these were among the written published

presentations from this conference in these proceedings in

the volume in front of you.

Q Among the sources he outlined, number one, did he discuss

asbestos insulating cements?

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A Yes.

Q For high-temperature purposes?

A Well, I don't think he got into too much in the details as

to the temperature demands. But he talked about insulating

materials containing asbestos.

Q Did he discuss asbestos mill board or asbestos boards as

another source of asbestos exposure to workers?

A Yes, he did.

Q And he discussed both of those specifically with

potential, being a potential source for cancer?

A Sure. That was his focus.

Q Now, so this is all medical literature you've been talking

about up through -- since the 1930s up to the present. Were

there other sources of information for companies to learn

about the hazards of asbestos through the 1940s, '50s and

'60s?

A Yes. There were engineering publications in the 1930s

talking about dust measurement, industrial ventilation

control systems, how to design them, things like that,

published in journals with names like Mechanical Engineering,

and their British -- that was published in the U.S. and

various British engineering journals in the 1930s as well.

Then there were safety publications. A journal called

Safety Engineering. And publications, many publications of

the National Safety Council based in Chicago.

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Q All right. So I published interrogatories, Exhibit 505,

which describe that the parent company for Ferro Engineering

in the past, Oglebay Norton, was a member of the National

Safety Council. You were in the room when I did that,

correct?

A Yes.

Q What was that organization and explain what a company had

access to concerning asbestos through its membership in that

organization.

MR. HALL: Your Honor, I object on relevancy grounds

to the extent that this is offered as against Lone Star,

Pioneer Sand and Gravel.

MR. HART: This would be on Ferro, Your Honor.

THE COURT: All right. Admitted for that. Go ahead.

A The National Safety Council was set up in 1912 by big

business mainly to limit industrial injuries. So they were

pushing things like safety glasses and safety shoes, and also

putting the idea of putting guards, metal guards around fast

moving belts so workers didn't get pulled in by their

sleeves, those kind of practical cost-effective injury

prevention approaches.

And then in the 1920s the National Safety Council started

publishing and investigating issues having to do with

tetraethyl lead and benzene. And they started getting into

the field of occupational diseases and protection of workers

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from those.

And by the end of the 1920s with a great deal of attention

to hazards of industrial dust, we start seeing publications

from the National Safety Council that talk about asbestosis

and asbestos dust as a hazard and dust control. They had the

annual National Safety Congresses, which were the annual

meetings, which full volumes of which were published and

distributed to members. And they had a monthly magazine

called the National Safety News. And then they had

specialty publications with names like Accident Prevention

Manual and so on.

So there were a wide number of publications, many of which

you can find in public libraries -- they weren't just

available to members of the National Safety Council --

providing information on dust measurement, air sampling,

medical evaluation of workers, worker's compensation laws

relating to dust diseases, those kinds of things that would

be of interest to different types of individuals and

companies involving and managing protection of workers from

occupational diseases.

Q Now, you talked about the articles that were in the

medical literature discussing asbestos and cancer. Did the

National Safety Council reprint or make reference to those

articles in the materials it distributed to its membership?

A They did that or they just kind of republished the same

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information but for a broader non -- not strictly medical

type of audience. So they were getting the same information

out. They weren't publishing stuff that was not in medical

and scientific journals, but they were making it available to

a broader audience through their publications.

Q So Ferro Engineering's parent, the Oglebay Norton Company,

was a member of the National Safety Council, it would have

access to the development knowledge of asbestos as a cause of

cancer through the 1960s through the National Safety Council

as one source; is that fair?

A Yes.

Q Now, let me ask you to look at --

MR. HART: Madame clerk, may I have the exhibits

beginning with the 500 series, the plaintiff's?

Your Honor, this next series of questions will apply to

ON Marine or Ferro Engineering only.

THE COURT: All right. Thank you.

Q If you could turn to Exhibit 518, please.

THE COURT: What that means, ladies and gentlemen, is

that this evidence is limited in the application of what you

consider it for and it applies only to the defendant,

ON Marine.

Q Is that the one, The Chat With the Doctor?

A Yes.

Q And the jury -- I published this to the jury earlier, we

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don't need to read the whole thing. But just generally, tell

us how significant, from a public-health perspective, to a

company like Ferro Engineering is the information in this

article in order to enable them to protect users of their

products.

A Well, it enables management of the company, who certainly

include people that don't read the Journal of the American

Medical Association and other medical publications, to

understand in plain English that asbestos is a lethal danger,

asbestos dust is a danger, and that protective measures are

needed in order to keep people from breathing the dust and

getting the disease it causes.

Q Is this the information that is the type of information

important from a public-health perspective of a company?

A It is. In lots of ways -- it's newspaper articles that

inform corporate management in ways that, you know, they

might not have otherwise obtained information in some cases.

Q And it's written in simplified form compared to medical

journals, is that fair?

A That's true. It's not full of technical medical jargon

that you might find in a pathology journal.

Q I've heard said you can't believe everything you read in

the newspaper. Is that generally agreeable?

A It's usually good to be cautious. That goes double with

the Internet.

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Q And the Internet, correct.

But if a company got this article, and they did, in

fact, get it according to their production to us, would that

give them any reason to conduct research or investigate

concerning this subject matter?

A Well, it would certainly logically prompt people in

industrial management to, first of all, if they're

manufacturing a product using asbestos as a raw material in

the manufacture of the product, their workers are clearly

going to be in danger if they don't take steps to limit their

workers' exposure in the manufacturing plant to this dust.

And secondarily, it's not exactly rocket science to infer

that, from the foreseeable conditions of use, a chemically

stable product like asbestos mineral dust contained in the

finished product, if the product is going to be subject to

creating dust in the course of its use, that may also be a

danger to the users of the product who are, you know, capable

of being at least partially protected if they're warned about

the nature of the danger and means they can take to reduce

the dust exposure.

Q Doctor, are products that are sold that contain asbestos

in the late 1960s early 1970s, those products are sold

without warnings to users, would those products be

unreasonably dangerous from a public-health perspective?

MR. HALL: Objection.

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MR. ANDRE: Objection.

MR. HALL: Calls for a conclusion of law.

THE COURT: Well, I think it's a question of fact as

well. I'll permit the witness to answer the question.


A Yes.

Q And why do you say that?

A Well, if the product creates asbestos dust in the course

of its use, contains asbestos, then workers have no way of

knowing it's dangerous unless they're told about those

things. Lots of time there's no -- it's not at all obvious

that the product contains asbestos. Even if the worker for

some reason back in the 1960s knew asbestos was dangerous and

was alarmed or looking out for it, they might not have known

that individual products that don't have any marking to that

effect contained asbestos.

But, for the most part, the workers just didn't have any

idea asbestos was dangerous back in the 60s and 70s. And

they needed to be told that, too. And they ought to have

been told the extent of the danger, not some vague language

about how breathing it might be harmful to your health.

MR. HALL: I'll move to strike the nonresponsive part

of the answer, particularly the very last part of it.

THE COURT: Just a moment.

I think I am going to strike, ladies and gentlemen, the

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last part of his answer where the witness said: For the most

part workers didn't have an idea asbestos was dangerous, etc,

the end of the answer I think is not responsive to the

question and would call for this witness to tell us what

workers may or may not have known. So I'm going to strike

that. You'll disregard that portion of the answer.

Q Let me discuss that subject with you, doctor, foundation

for it. When you completed your master's thesis in 1972 and

began working, you said one of the subjects you addressed in

your field was asbestos hazards in the workplace; is that

correct?

A Yes.

Q Did you actually go to workplaces and speak with workers

who were working with asbestos product?

A Yes.

Q And what type of products were they?

A They were filters used in breweries and distilleries.

They were brake linings and brake -- they were doing brake

repair. So they were blowing accumulated dust out of brake

assemblies. And none of these workers seemed to have any

idea this stuff was dangerous.

Q That's what I was going to ask you, in your personal

experience --

MR. HALL: Excuse me. I move to strike that

nonresponsive part of that answer also.

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THE COURT: You've got to tell me the nonresponsive

part.

MR. HALL: The very last part, last sentence.

THE COURT: I'm going to strike the last part of the

answer where he says, "And none of these workers have any

idea this stuff was dangerous."

Q Doctor, let me ask you your personal experience based upon

interviewing workers. Was there an awareness of the hazards

of asbestos?

A For the most part, no. It would be an unusual worker back

in the early' 70s that knew asbestos was dangerous.

Q And were there discussions in the public-health literature

concerning the awareness of workers concerning hazards such

as asbestos?

A Well, there was. You know, occasionally articles would

call that to people's attention. My own article, when I

wrote about warning brake mechanics in the early '70s in an

article published in '75, I said the least the manufacturers

could do is put a warning label on these products. Because

when we started putting out these notices, there were no

labels of any kind on any of these brake parts.

Q Now, another article that was found in the ON Marine, I

guess it's the Ferro Engineering archives, from the Sunday

Times of London: Asbestos Recognized as Cancer Risk by Dr.

Alford Byrne. Do you see that? I think it's Exhibit 520.

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And this particular copy is a little blurry; I'm not going to

ask you to read it. But just with the headline, would that

put a company on notice if this was in their files that some

potential research was necessary?

A Sure. And some of the text is especially alarming.

Q Particularly what?

A The part at the bottom of the first paragraph going --

bottom of the first column going on to the second column

where it says, "Exposure for only two or three months may

cause the cancer." So they're saying two or three months'

exposure can be enough to kill you.

Q And that was known by the author of this article who

published it, and in the Ferro Engineering archives in 1966?

A Evidently, yes.

Q Let's talk about company response, corporate response.

You've investigated the actions of companies in response to

this developing knowledge, have you not?

A Yes.

Q Much of your book describes what companies did and did not

do in response to the knowledge about asbestos, is that

correct?

A Right.

Q Did some companies perform research?

A Yes.

Q Did some companies test?

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75

A They tested the products to see the exposures involved.

They did research looking for substitute materials to replace

the asbestos. Yes, those sorts of things.

Q Did companies -- let me ask you this way. Were there

laboratories available that companies could go to and ask

them to test their products?

A Sure.

Q Was that, in fact, done by companies that made asbestos

products?

A Yes.

Q Give us some examples, please.

A The manufacturers of the joint compounds had a private

laboratory test several products and provide them with the

exposure data on the application of those drywall patching

compounds.

Q So they actually had a test to see how the product was

used to address asbestos exposure; is that correct?

A Well, I guess they went ahead and used the product in the

way they always did and at some construction site, but they

had a qualified lab come by with air sampling devices and

either put them on the lapels of the workers or put them in

the room where the work was going on and record the levels of

exposure that way.

Q And by so doing they had some information about how much

asbestos was liberated from the use of that product; is that

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76

correct?

A How high of an exposure to the harmful agent the workers

were receiving.

Q And in the early to mid-1970s, were there numerous

laboratories available to assist companies who wanted to

investigate that?

A Yes.

Q Let's go back farther in time. Were there laboratories

available that could do, let's say, animal research to

determine whether asbestos was hazardous and could cause

cancer?

A Yes.

Q Did some companies engage in that type of research?

A Yes.

Q What did they learn?

A Well, in the case of asbestos they learned that asbestos

could cause cancer by inhalation in experimental animals. So

this is one way -- in the case of a rat or mouse only lives

two or three years, so in a fairly short time compared to

studies of people, you can find out, especially with a new

product, within a few years of an animal, using an animal

study, you might be able to determine if this stuff is

something you need to worry about from the standpoint of

causing cancer in people who are going to be exposed to the

same respiratory exposure.

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Q Okay. And in addition to doing tests with asbestos, raw

asbestos, were there laboratories available where you could

take a product that you just developed and were going to

sell, and before you put it on the open market, have it

tested by the laboratory to see if the product caused harm to

the laboratory animals?

A Sure. Dust chambers that were set up by private labs that

companies could hire to do these kinds of tests on rats,

mice, guinea pigs.

Q And did companies, in fact, test their products before

they put them on the open market in such laboratories?

A Some companies did.

Q All right. And when did the companies -- some of the

companies do testing using raw asbestos in the laboratory to

get information, what time period did that take place?

A The earliest such tests were started in the 1920s and the

first research findings were published in 1931.

Q What about laboratory animal research on raw asbestos

whether it's capable of causing cancer. When did that take

place, what general time period?

A Well, there were -- experimental data were developed in

the 1940s on that. But they weren't published.

Q Okay. But my point is that there were laboratories where

a company could go do that type of research in the 1940s,

correct?

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A Correct.

Q Research cancer?

A Yes.

Q When were there laboratories available for companies to

take the products that they developed, before they put them

on the market, and have them tested to see whether they

caused harm to workers?

A At the same time, the 1940s and probably before that, but

certainly the 1940s.

Q Did some companies do that in the 1940s?

A Owens Illinois did it with an insulation product they were

introducing at that time containing asbestos.

Q And was the information that they obtained, information

directed at protecting the health and safety of users of

their product?

A That was one of their concerns expressed from the

beginning when they commissioned research in 1943.

Q Now, you mentioned earlier that users of materials have to

be told, had to be warned, given a sane appreciation of the

risk of those concepts?

A Right.

Q Did some manufacturers actually provide at least some

information to users of the products?

A This started it seems in 1964, after Selikoff's article

was published in the Journal of the American Medical

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79

Association, about the high mortality of the insulation

workers. The next month, I think Johns Manville, according

to several types of different documents, Johns Manville

Corporation started to place the first generation of warning

labels on their insulation, their thermal insulation

products. But the warning was very vague as to the health

effect, "May be harmful to your health if you breathe

excessive quantities over long periods of time." They don't

say whether it's a cough or cancer they're worried about you

getting.

Q Some companies at least began putting labels on their

products in the early to mid-60s, is that correct?

A Yes.

Q So it was feasible to do so?

A Oh, sure.

Q Now, did some sellers -- you heard that in answer to an

interrogatory that one of the suppliers of asbestos to Ferro

Engineering for their Ferroboard was a company called

Canadian Johns Manville. Are you familiar with that company?

A Yes.

Q Is that one of the companies you investigated in your

book?

A Yes.

Q Did that company place warning labels on its asbestos

fiber that it was selling to companies like Ferro

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80

Engineering, let's say before 1970?

A They did. In 1969 they started to place these warnings.

And before they did that, they notified their customers that

they were intending to place the first generation, if you

want to call it, of health warnings on sacks of asbestos

shipped from their Canadian mines.

Q That was information available to all of the purchasers of

asbestos fiber from Canadian Johns Manville Corporation?

A Yes.

Q Doctor, from a public-health perspective, should users of

-- or persons exposed to the residue of Ferroboard hot top

product containing amosite asbestos in 1973 and thereafter

have been advised by manufacturers of the product of the

hazards of the asbestos?

MR. ANDRE: Objection. It's a legal question, Your

Honor.

THE COURT: Just a moment. I'll permit the witness

to answer the question.

A Yes.

Q Was it -- were there methods and means available to do so?

A Sure.

Q From a public-health perspective, doctor, as of 1973

should a seller of high-temperature asbestos cement have

advised users of that product of the potential dangers from

exposure to asbestos, first of all from mixing that product?

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81

A Certainly.

Q Were there methods and means available to do so?

A Yes.

Q From a public-health perspective, would it be negligent

not to do so?

MR. HALL: Objection, Your Honor, calls for a legal

conclusion.

THE COURT: Sustained. Now we're getting into the

legal field.

MR. HART: Doctor, thank you very much for your time.

That's all the questions I have, Your Honor.

CROSS EXAMINATION

BY MR. HALL:

Q Good morning, Dr. Castleman.

A Good morning.

Q I want to start with a couple of things that I think that

you and I can agree on. And I want to start with your book.

And I, like Mr. Hart, I have some old books that have seen

better days --

MR. HALL: Your Honor, may I approach the witness?

THE COURT: Yes. You can give it to the clerk, if

you'd like.

A Looks like the first edition.

Q You anticipated my question. That was the first edition

of your book?

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A Yes.

Q And what you were shown earlier, that was the fifth

edition of your book?

A Yes.

Q And the first edition you had specific sections or

chapters on a number of different companies, correct?

A Right.

Q And in that first edition it was approximately 15

companies; is that correct?

A I think so. I'm not going to bother counting them, but

that sounds about right.

Q And in your last edition, the fifth edition, there are

chapters or sections on approximately 30 companies; is that

correct?

A That sounds about right.

Q And you have published new editions as you have gotten

more information; would that be a fair statement?

A Sure.

Q And that would be as you acquired, over the course of your

30-plus years of consulting, you've learned more information

about what companies knew and you've added companies to the

list. Would that be a fair statement?

A Yes.

Q Now, in your first edition are any of the companies that

you wrote about, Pioneer Sand and Gravel?

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83

A No.

Q Are any of the companies that you wrote about in the first

edition, Lone Star Industries?

A No.

Q In your fifth edition are any of the sections that you

wrote about Pioneer Sand and Gravel?

A No.

Q And are any of the companies that you wrote about Lone

Star Industries?

A No.

Q And would you agree with me that at least you have no

opinions as to what the actual knowledge of Pioneer Sand and

Gravel was with respect to the dangers of asbestos?

A I haven't seen any documents indicating the actual

knowledge of the company. So I don't have an opinion on what

they actually knew, absent such evidence.

Q And would your answer be the same for Lone Star

Industries?

A Yes.

Q I promised Mr. Hart I'd be very careful with this. This

is what you were shown. This is the list of attendees or

authors?

THE COURT: You've got it on sideways, counsel.

Q Have you been provided any evidence or know of any

evidence that any of these authors had any relationship to

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84

Pioneer Sand and Gravel?

A No, sir.

Q Do you have any evidence or been provided any evidence

that any of these authors had a relationship to Lone Star

Industries?

A No.

Q Do you have any evidence that any individual connected

with Pioneer Sand and Gravel was present at the conference

that you've talked about?

A No.

Q Do you have any evidence that any member, any individual

associated with Lone Star Industries was present at the

council?

A No. I've never seen the list of everybody that was there,

by the way. This is -- this and some corporate documents

provide the totality of what I know about who was there.

Q This is another document that Mr. Hart went over with you

and I promised him that I wouldn't write on it. I want to

direct your attention to 1942. Do you see that?

A Yes.

Q And you've talked also about Dr. Merewether?

A Right.

Q And in 1942 did Dr. Merewether visit the United States?

A Yes.

Q And where did he visit in that year?

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85

A He visited shipyards, at least one shipyard on the East

Coast. And he visited, I think, the laboratory where some of

these experimental animal studies were going on in 1942, '43.

Q Do you know who owned the shipyard that he visited on the

east coast?

A Bethlehem Steel.

Q And it's your opinion, isn't it, that at least as of 1942

Bethlehem Steel was aware of the dangers of asbestos?

A I think that's fair to say, yes.

Q With respect to a company's knowledge, companies can have

operations in many different locations, correct?

A Sure.

Q And if information in one location is developed, you would

agree, wouldn't you, that that's information that's generally

available within that company; would that be a fair

statement?

A It's a little bit vague. But generally speaking,

companies are designed to be able to process information in

that way where if they learn something through some of their

activities, and that's significant to their business, that

information will be shared with other subsidiaries and

operations of the company. It doesn't always happen but they

are set up with that in mind.

Q Now, one of the sources of information that's available to

a company, I think you indicated, would be worker's

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86

compensation claims for an asbestos-related disease?

A Right.

Q Do you have any evidence or are aware of any evidence that

there was ever an asbestos-related worker's compensation

claim filed with respect to Pioneer Sand and Gravel?

A I don't have any information about that.

Q Would your answer be the same for Lone Star Industries?

A Yes.

Q Now, you understand that my client is not a manufacturer

of asbestos-containing products?

A Yes.

Q Do you understand that?

A I do.

Q And the claim is that my client was a supplier or seller

of asbestos-containing products as a distributor?

A Right.

Q Now, you make a distinction regarding state-of-the-art

knowledge between a manufacturer and supplier, don't you?

A I do.

Q And you would generally hold a manufacturer to a higher

standard than a supplier; is that correct?

A That's right.

Q And what distinguishes whether the -- with respect to

whether a company would be held to a higher standard depends

on the information available to the company, would you agree

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87

with that?

A Among other things. The manufacturer has employees, and

if they're using asbestos in their activities, it's been well

known since the 1930s in industrial, medical, and insurance

circles that workers in a factory where asbestos is being

used, if it's not properly controlled, are going to be in

mortal danger. A supplier doesn't have that kind of business

activity that a manufacturer has, and that's why I would hold

a manufacturer to a higher standard of knowing and doing

something about hazards associated with a product.

Q And with respect to what a company knows about asbestos,

there can be a number of sources of information that would be

available to a company such as Pioneer Sand and Gravel?

A Sure.

Q Is that a fair statement?

A Sure.

Q Might be the public domain that you've spent some time

talking about here this morning, correct?

A Might be.

Q It would also include information coming from the

manufacturer of the product that they were selling, would you

agree?

A Right.

Q I want to make sure I heard your testimony earlier this

morning correctly. At one point Mr. Hart asked you about

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88

responsibilities of employers, responsibilities of sellers,

and I wrote down the term with respect to warning. It is

addressed, the contention of redundancy. Did I write that

down correctly?

A Not contention. But there's an intentional redundancy in

public health efforts where there's an overlap and you kind

of backstop the regulations on the employer with regulatory

requirements on the seller of the product as to warning

labeling.

Q And so the idea, as I understand it, is that the -- and I

think you said that not every employer is going to know every

regulation?

A Right.

Q Okay. And in this case Mr. Turner's employer was

Bethlehem Steel; is that correct?

A Yes.

Q Now, information that an employer, what we said earlier

about getting information from manufacturers for purposes of

distributors, that's also where the users of the product

would get information; would you agree?

A Well, it's certainly one place where the users of the

products can get information from a manufacturer.

Q It might not be the only place, but they certainly would

expect to get information from a manufacturer if a company

like Bethlehem Steel was going to use the product. That

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would be a source of information, would you agree?

A It's a little hard for me to say what workers would expect

of either employers or the manufacturers of products. I

don't feel comfortable trying to answer questions like that.

They would hope that somebody is doing what they should do to

protect them and warn them. But what they would expect is

another question.

Q And with respect to the product, the refractory cement

that's at issue here, you understand that the claim relates

to a product called Insulag?

A Yes.

Q And Insulag was manufactured by the Quigley Company,

correct?

A Yes.

Q And in approximately 1968 the Quigley Company was

purchased by Pfizer; is that correct?

A I don't recall all the details of the corporate history of

that company. I'm not sure if I have ever been told about

all the details.

Q Are you aware that at some point in time Pfizer became the

owner, or Quigley, became a subsidiary of the Pfizer Company?

A Why don't we say I accept your representation that that

occurred whenever you say it occurred for the purpose of the

next question.

Q Fair enough. And so -- and with respect to Quigley and

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90

Bethlehem Steel, information that Quigley was sharing with

Bethlehem Steel, that would be an important source of

information with respect to Insulag, wouldn't it?

A It might be.

Q Okay. I'd like you to --

MR. HALL: If we can get Exhibit 2082.

A Yes. I have it here in front of me on the Quigley

letterhead.

Q This is an April 28, 1972 letter from Mr. R.W. Young of

the purchasing department, or it's a letter to Mr. R.W. Young

of the purchasing department of Bethlehem Steel; is that

correct?

A Yes, it is.

Q And this is a document that addresses on the second page a

substitute for Insulag. Do you see that?

A Are you talking about the big paragraph?

Q Yes.

A Let me take a quick look at this. Yes, I see the

paragraph. What do you want to know about this?

MR. HALL: Your Honor, we'd move admission of 2082 as

an ancient document.

THE COURT: I think it was an admitted exhibit

already on the list.

THE CLERK: That's correct, Your Honor.

THE COURT: You want me to have to rule on it again?

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91

MR. HALL: No, Your Honor, I'm not asking you to rule

on it again. I like the first ruling.

THE COURT: Well, it's in your list, the pretrial

exhibit list as admitted.

Q So let me show you this letter. And here in April of 1972

the Quigley Company is writing directly to Mr. Young at the

purchasing department of Bethlehem Steel. Do you see that?

A Yes.

Q And you see. "We have analyzed our sales figures and have

found we have supplied 15 different products to you over the

past five years." Do you see that?

A Yes.

Q And one of those products is Insulag, correct?

A No. 8, yes.

Q And on the second page this is Mr. Marino, the chief

engineer for Quigley, is discussing the development of

non-asbestos products. Do you see that?

A Yes.

Q And what they are -- he also mentions that they are

working on a direct substitute for Insulag and are hopeful it

will be available soon; is that correct?

A Right.

Q Okay. Now, and Quigley also was communicating directly

with respect to Insulag and the development of an

asbestos-free product with Bethlehem Steel's research labs.

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92

Are you aware of that?

A I don't think I've seen that correspondence. Is that here

somewhere?

Q This is Exhibit 2137. And I'm going to defer for a moment

if that's been admitted. No. Okay.

A I have it in front of me if you want to ask about it.

Q Yes, I will ask you a few questions.

And this is a letter dated February 9, 1973, from

Mr. Cotton who's the manager of the sales services?

A For Quigley, yes.

Q And he's writing directly to Mr. Baab, who is Homer

Research Labs, Bethlehem Steel Corporation, Bethlehem,

Pennsylvania?

A Yes.

Q In there he has a reference to the availability or --

THE COURT: My list doesn't show this as being

admitted.

MR. HALL: At this point I would move to admit 2137

as an ancient document.


MR. HART: No objection, Your Honor.

THE COURT: It will be admitted.

(Exhibit No. 2137 was admitted into evidence.)

Q And in this letter Mr. Cotton is writing directly to

Bethlehem Steel in which they're following up with their

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93

discussion with respect to Insulag AF. Do you see that?

A Yes.

Q And the last sentence says, "Overall we have an excellent

product in Insulag AF." Do you see that?

A Yes.

Q That is February 9, 1973; correct?

A That's the date of this letter, yes.

Q You discussed in your direct testimony your work on the

ban of asbestos in joint compounds. Do you recall that

testimony?

A Yes.

Q And that ban went into effect in 1976?

A 1977. Actually, it went into effect -- the rule was

published in December of '77, and I think they immediately

banned manufacture and gave the industry six more months to

stop selling whatever stocks they had in the channels of

commerce in 1978.

Q And I think if I, again if my notes are correct, you

indicated that at that time when you were working on that ban

there were already asbestos-free products in the marketplace,

right?

A Right.

Q Would you agree with me Insulag AF would have been one of

those products?

A No. It's a different class of products we're talking

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94

about. It's the same idea, but a different category of

asbestos-containing products in which the manufacturers were

moving to replace the asbestos once it started to get

regulated by OSHA and so on.

Q Let's talk about OSHA for a little bit. Now, you have

described OSHA in the past as, the period before OSHA, was

the stone age of industrial medicine; is that right?

A I have used that expression. There was really no

protection of workers in this country until the 1970s, at

least nothing through government regulation, not enforced.

Q So OSHA became effective in 1972, correct?

A Well, OSHA began to function in April of 1971. Of course

it was a brand new government agency. But it issued an

emergency temporary standard for asbestos in December of 1971

and so-called permanent standard in June of 1972. So that's

the timeframe.

Q And the purpose of OSHA was worker health protection, at

least that was one of the purposes?

A Worker health and safety, sure.

Q Sure. And the regulations that were adopted by OSHA were

addressed to companies such as Mr. Turner's employer,

correct?

A Yes.

Q Now, I'd like you to turn to Exhibit 39. I think this has

already been admitted. I'll confirm that before I put

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95

anything up.

A What you're putting up is from the federal register where

OSHA published the so-called permanent standard in 1972, in

June.

Q And these permanent standards are something you're quite

familiar with, would that be a fair statement?

A Yes.

Q And one of the standards that they adopted related to the

mixing of asbestos cement, correct?

A Yes.

Q And there was a procedure in place for how that was to be

addressed, correct?

A Yes.

Q And that regulation would have been applicable to

Bethlehem Steel, correct?

A I think so, sure.

Q Now, Dr. Castleman, I think we've established that for a

company like my client, Pioneer Sand and Gravel, one of the

sources of information that it gets is information from the

manufacturer of the product, correct?

A Right.

Q And in this case, for Insulag, the information that

Quigley would provide to Pioneer Sand and Gravel could

include marketing materials?

A Sure.

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96

Q Okay. Really anything that Quigley puts out there in the

public, that's information that a company like Pioneer Sand

and Gravel would accept and would have available to it in

terms of making decisions with respect to what it knew or

didn't know. Would that be a fair statement?

A Yes.

Q Okay. I'd like you to turn to Exhibit 274. This is an

exhibit that's been -- I'm sorry, 2074.

THE CLERK: This is not an admitted.

THE COURT: This is not an admitted document.

MR. HALL: 2074?

MR. AMEELE: I show it as admitted.

THE CLERK: I'll double check. I stand corrected,

Your Honor. Admitted on December 4, 2013.

Q Do you have it in front of you?

A No. Okay. This is like the document from Quigley,

answers to interrogatories or something like that.

Q Right. Well, the good news is I'm not going to ask you

questions about every page of the document. So if you could

turn to page 3.

A Yes.

Q And this shows that the last date for manufacture of

Insulag was March 31, 1974; correct?

A That's what it says.

Q And now I'd like you to turn to a document that has the

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97

Bates stamp 000005.

A In this same document?

Q Yes.

A Okay. I have that.

Q And I want to make sure you're on the same page. Is it

the document I have in front of us?

A Yes.

Q And you see down on the bottom where there's a 4/67?

A Yes.

Q Is the word asbestos anywhere on this document?

A I don't see it.

Q Do you see the language, though, that I have highlighted?

A Yes.

Q "Insulag is non-injurious as contains no mineral wool or

fine slag particles which are irritants to the body." Do you

see that?

A Yes, I do.

Q And this is part of the information that a company like

Pioneer Sand and Gravel would have received from the Quigley

Company, correct?

A Well, they may have, yes. I don't know if they did or

not.

MR. HALL: Thank you, Dr. Castleman, I have nothing

further.

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98

CROSS EXAMINATION

BY MR. ANDRE:

Q Good morning, Dr. Castleman.

A Good morning.

Q My name is Bob Andre, I represent ON Marine, and a former

division of ON Marine which is called Ferroboard Engineering.

Now, you were hired by the Bergman firm in this case to

testify for the first time, I believe, against Ferro

Engineering; is that correct?

A I've never been in a trial where Ferro was a defendant

before, that's right.

Q I looked at your book down here and I followed all your

books, all the chapters over the years. And there's no

mention in the index or anything of you doing a research

study on Ferro Engineering.

A No.

Q And I also looked at the steel industry, and if you

recorded in the steel industry at least on this most recent

volume, and I don't see any steel industry information?

A Very little about the steel industry. I mean, I mention

the visit to Bethlehem Steel by Merewether in 1972. But it's

not a detailed attempt -- there's only so much you can put in

a 900 page book. And I didn't get around to dealing with the

steel industry in any great detail.

Q I asked you at your deposition four months ago whether you

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99

were in a steel mill plant. You said you were in a steel

mill plant, I believe you were an inspector at that time,

were you?

A I was a public health official, an air pollution control

official, and we had a very large Bethlehem Steel mill in

Baltimore, which was in Baltimore County. And I visited that

on a number of occasions.

Q And did you give any citations at that mill?

A No. But I was a county air pollution official. The State

of Maryland retained authority to deal with that installation

as far as regulation. And neither we nor the state air

pollution authorities were OSHA officials, who might have

more reasonably had grounds for citing Bethlehem for

violating worker health and safety regulations.

Q Doctor, you did no report in this case on Ferro

Engineering in preparation for your testimony?

A I don't think I did, no.

Q And I don't think -- you didn't review any of the files in

this case except what Mr. Hart showed to the jury, which was

Ferro's answers to interrogatories in this case?

A I saw that and I think I saw some of these documents we've

talked about this morning.

Q You were here in the courtroom when the jury saw the

answers to interrogatories; is that right?

A Right.

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100

Q So other than that, we're not dealing with any background

information that you have on Ferro Engineering?

A That's right.

Q All right. Now, I'm not going to go over all the

documents but I want to ask you this question. The jurors

have access to the interrogatories, they can deal with it,

and you've given them your opinion on those answers to

interrogatories. Let me ask you, because a company in the

1960s, the manufacturing company, collected some newspaper

articles, that would be a good thing, not a bad thing, on

asbestos?

A Right.

Q And the fact that Ferro Engineering may have had a meeting

in January, I think of 1969, to discuss asbestos, that would

be a good thing, not a bad thing?

A To discuss asbestosis and diseases caused by asbestos,

yes, that would be a good thing.

Q And the fact that asbestos -- Ferro Engineering was trying

to get asbestos out of its Ferroboard linings in the early

1970s, that would be a good thing, wouldn't it?

A Yes.

Q And the fact that when you see a warning label in Ferro's

files that was put on, at some time when it still had

asbestos on it, that would be a good thing?

A Well, the warning label -- the idea of a warning label is

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101

definitely better than no warning at all. The time of when

that warning label is put on is really very hard to know.

But the exact text of the OSHA warning language, which is

unlike any warning that any company ever voluntarily applied

before 1972, so it couldn't, in my opinion, have come before

then.

Q Okay. But nothing you saw in the interrogatory answers

led you to believe that Ferro was hiding the ball with

respect to either the knowledge about asbestos or trying to

not do something about it.

A Well, it seems that they could have done something between

1969 and 19 -- whenever they put the OSHA warning on, to warn

people about the hazards. And there are other ways. When

you're selling products you can put it in your brochures, you

can send people around to your major customers, you can tell

them about the dangers.

Q Dr. Castleman, thanks for coming out here. That's all the

questions I have. Thank you very much, sir.

THE COURT: Redirect?

MR. HART: Yes, sir. I'll get us out by lunch.

REDIRECT EXAMINATION

BY MR. HART:

Q Dr. Castleman, Exhibit 502 is the patent application Ferro

filed in 1969; is that correct?

A Yes.

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102

Q And you had an opportunity to review that?

A I've looked at that, yes.

Q And do you see -- this is after they had their newspaper

articles about asbestos, correct?

A Yes.

Q This is after they had their meeting and they discussed

asbestosis and other diseases, correct?

A Yes.

Q And this patent application talks about putting a specific

type of asbestos called amosite in the new product they were

developing called Ferroboard and they're asking for a patent

on it; is that correct?

A That appears to be the case, yes.

Q Does the patent application provide any information they

were going to warn users about that?

A No, it doesn't.

Q Any information that they began warning users after they

began selling this material, other than the vague or undated

notice they put in their answers to interrogatories?

A No.

Q Is the actions of Ferroboard, with the knowledge available

to them through the public health, with the knowledge

available to them through the newspaper articles, with the

knowledge available to them in their own internal meeting, to

add amosite asbestos to a product and get a patent for it the

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103

actions of a responsible company from a public-health

perspective?

MR. HALL: Objection. That misstates the evidence.

THE COURT: That will be for the jury to decide.

I'll permit the witness to answer.

A This was a time when there was a great deal known about

the hazards of asbestos in the late '60s early '70s. We

haven't learned much since then about how lethal asbestos

dust is. So introduction of a new asbestos product at that

time should have been accompanied by efforts to at least warn

people about it.

Q Thank you, sir. With regard to the questions you were

asked about Insulag, you indicated you would hold a

manufacturer to a higher standard than a seller, and that's

because a manufacturer would have the opportunity to get

information from its employees; is that correct?

A Well, information relevant to the health and safety of its

employees and through -- through various types of insurance,

the group life, Group Health, other kinds of -- worker's

compensation. Employers had bottom-line reasons for paying

attention to things affecting the health of their employees,

even if they were simply looking at it from a bottom-line

point of view, that those kinds of considerations wouldn't

apply to companies which were sellers of products that they

were selling that someone else had manufactured.

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104

On the other hand, you would expect some responsibility to

be shown by the sellers of products and not just sell

anything that they could without giving any thought to

whether people were properly warned about a recognized

hazard.


of that, specifically the last two to three sentences.

THE COURT: I'll permit the answer to stand.

Q By the early 1970s was it generally known that

high-temperature insulating cements contained asbestos?

A Well, it was certainly well known in the industry. Not

necessarily to the workers, I'm saying.

Q Okay. That was my question. If you're a seller of

high-temperature insulating cement in the late '60s and early

'70s, was it generally known that that cement contained

asbestos?

A I think in industrial circles that was widely understood.

Q By 1973, would a seller of asbestos insulating,

high-temperature insulating cement, have any reason not to

investigate, research, or test the products or label them for

their content, asbestos, before they sold them to a user?

A No.

Q From a public-health perspective?

A No.

Q Doctor, let me ask you to assume that the testimony in

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105

this case will be that after asbestos-free Insulag was

developed in 1972, that it continued to be sold through the

spring of 1974, March 31, 1974. Would you assume that for

me?

A You're talking about the asbestos-containing stocks?

Q No. They continued manufacturing and selling both types

of products through March 31, 1974.

A Now I understand your question. I'll accept that for the

purpose of the next question.

Q Would you accept that the evidence in this case will show

that?

A Yes.

Q Would warnings be required of the sale of high-temperature

insulating cement?

A I think they would have been -- did you want to say

something?

MR. HALL: Yes. I'll object as an improper

hypothetical as it relates to a seller as opposed to the

manufacturer of the product.

THE COURT: Well, why don't you rephrase and identify

whether you're including both or one or the other.

Q The testimony in this case -- assume the testimony in this

case will be that Quigley continued to sell

asbestos-containing Insulag cement through March 31, 1974.

A Okay.

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106

Q Over a year after they had available Insulag AF insulating

cement.

A All right.

Q And that Pioneer Sand cannot deny it sold

asbestos-containing insulating cement to Bethlehem Steel in

Seattle through the 1974 time period.

A Okay.

Q If the jury believes Pioneer Sand and Gravel continued to

sell asbestos-containing Insulag cement to Bethlehem Steel

through 1974, should that product have had a warning on it,

from a public-health perspective?

MR. HALL: Same objection. It's an improper

hypothetical.

THE COURT: I'm going to overrule the objection.

I'll let the jury sort out the facts relating to the

hypothetical.

A Yes. I think that not only from a moral and ethical point

of view and based on what was known about the lethality of

asbestos by 1972, but because there were OSHA regulations

that also would have applied to a product like this which

under foreseeable conditions could give rise to significant

asbestos exposures.


as to moral and ethical.

THE COURT: It will be stricken. It's not responsive

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107

to the question.

MR. HART: But the rest of the answer stands? Thank

you.

Q So, doctor, with respect to Lone Star, would you give them

a pass in 1974 for selling a product without a label saying

it was asbestos or a label warning the user?

MR. HALL: Objection, argumentative.


Q Would any of the issues raised by counsel in his

examination to you, those brochures, that flier, the OSHA

requirements to the employer, change the public health

responsibilities of a seller of Insulag in 1973 and '74?

MR. HALL: Objection. Calls for a legal conclusion.


A No.

Q And the OSHA regulation you were asked about in 1972, it

imposed an obligation to place caution labels on all raw

materials, mixtures, scrap, waste, debris, or other products

containing asbestos or their containers; is that correct?

A Yes.

Q That applied to manufacturers?

A Yes.

Q That applied to sellers?

A Yes.

MR. HART: Thank you. No further questions.

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108

MR. HALL: No questions, Your Honor.

MR. ANDRE: No questions, Your Honor.

THE COURT: Thank you, sir. You may step down.

You're excused. Have a nice day. We'll take our noon recess

at this time. Let's take about an hour and five minutes.

You're reminded not to discuss the case unless you're all

together in the jury room. We'll be in recess until about

five after one.

(The following occurred outside the presence of the jury.)

THE COURT: We discussed this proposed limiting

instruction. I've attempted to look at the cross, and the

only place I see it raised was a place where I think you

moved to strike, and I granted that motion. Is there any

other place in here where you think we would need to have

some sort of limiting instruction?

MR. ANDRE: I interrupted twice when I knew where he

was going. Mr. Hart tried to do the same thing. He wanted

to talk about it so much.

THE COURT: Well, I don't think he did talk about it.

That's my -- unless you can point me to a page and line in

the transcript.

MR. ANDRE: He didn't mention a particular study.

THE COURT: All right. I'm going to decline, then,

to give the limiting instructions you were proposing this

morning.

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109

MR. HART: You excused Dr. Castleman, didn't you?

THE COURT: Yes.

MR. HART: Thanks. And do you have anything after

lunch before we come back, any other matters?

THE COURT: No.


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110

AFTERNOON SESSION


THE COURT: Ladies and gentlemen of the jury, the

parties have agreed that a defense expert witness can be

called out of order. He's apparently not available next week

so we're going to interrupt the plaintiff's case and allow

the defense to call their witness at this time. You may

proceed.

MS. GANT: ON Marine calls Dr. James Rock.

JAMES ROCK

Having been sworn under oath, testified as follows:

THE CLERK: For the record, will you state your full

name, please, and spell your last name.

THE WITNESS: James Rock, R-O-C-K.

THE COURT: We need an address for the record. It

can be your office address if you prefer.

THE WITNESS: 2514 Oak Circle, Bryan, Texas.

B-R-Y-A-N. 77802.

THE COURT: Thank you.

DIRECT EXAMINATION

BY MS. GANT:

Q Good afternoon, Dr. Rock.

A Good afternoon.

Q Please tell the jury your profession, sir.

A I'm a certified industrial hygienist and a licensed

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professional engineer.

Q How long have you been a certified industrial hygienist?

A Since 1977.

Q And how long have you been a professional engineer, sir?

A Also since 1977.

Q With respect to your educational and professional

background, have you prepared a PowerPoint slide that might

be useful for the jury, sir?

A I prepared a PowerPoint slide. I'll let the jurors decide

if it's useful.

Q If you could please pull up, the first slide.

THE COURT: Have you seen these slides, counsel?

MR. HART: Yes, Your Honor. And during lunch I told

counsel I objected to three of the slides and I asked her if

she would take care of the objections. And just when I

walked in she said she had not taken care of the objections.

So I do object to some of these.

MS. GANT: Excuse me, were you finished, sir? We are

not planning to show any of the slides to which Mr. Hart

objects until the court rules on any objection.

THE COURT: Well, I haven't seen the slides so I

don't know. Are they exhibits or is it just for

demonstrative purposes?

MS. GANT: They are demonstrative exhibits, Your

Honor.

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THE COURT: Well, when you get to any that he has

objected to, you should put them on the screen, but take them

away from the jury's viewing.

MS. GANT: I understood that, Your Honor.


Q Dr. Rock, is this a slide that you prepared, sir, that

summarizes your educational and professional history?

A Yes, it is.

Q Could you please detail your educational and professional

history, sir, using this slide as a reference?

A I have a Bachelor's Degree in electrical and electronic

engineering from Syracuse University, Master's and Ph.D. in

biomedical engineering from Ohio State University. I served

in the United States Air Force for 27 years as a

bio-environmental engineer. And progressed to become one of

the four commanders of the USAF Occupational and

Environmental Health Laboratory.

I was a senior lecturer in the industrial hygiene

engineering department at Texas A & M for five years. I

taught all the graduate and undergraduate courses in those

two curricula.

I am a fellow of the American Industrial Hygiene

Association and past president of that association. It is

the largest industrial hygiene professional association in

the world. I'm a past director of the International

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Occupational Hygiene Association. At the time I served on

the board we had 26 member nations, and we had

non-governmental organization status so that we could make

policy recommendations to the World Health Organization and

to the International Labor Organization.

I currently hold forth as the vice president for research

and engineering for a small Texas corporation called TUPE,

Inc.

Q Dr. Rock, are you a published author with respect to

industrial hygiene, sir?

A Yes. With respect to industrial hygiene.

Q Could you please detail for the jury some of those

publications, please?

A In terms of peer-reviewed publications, I have chapters, I

think now in nine books. I have an assortment of about

two-dozen articles on various aspects of industrial hygiene.

Industrial hygiene is the profession that tries to keep the

stress of the workplace separated from the workers. We deal

with now about 1300 stressors in the workplace. There are an

estimated 900,000 chemicals in commerce in the United States

today. So we have standards for a very small fraction, about

one percent of the materials that are actually in the

workplace.

Q Sir, did my office ask you to provide opinions in this

matter based on your knowledge, training and experience as a

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certified industrial hygienist and engineer?

A Yes, you did.

Q Could you please briefly describe for the jury the

materials you relied upon when completing your analysis?

A The case-specific materials that I relied upon are the

documents submitted to the court by the parties in this

litigation, and depositions from some of the witnesses that

you'll hear, and some witnesses that you may not hear from.

There were some documents from corporate files, from

On Marine Engineering -- I'm sorry, ON Marine Services or

Ferro Engineering, one of their divisions.

Q Those were materials that were produced in this case, is

that your understanding, sir?

A Yes.

Q I'd like to talk to you a little bit about asbestos, sir.

What are the primary forms of commercial asbestos?

A The simple way to say it is white, brown and blue. If you

want to get scientific, it's chrysotile for the white,

amosite for the brown, and crocidolite for the blue.

Q Have you prepared a slide that might be useful in

depicting these different forms of commercial asbestos for

the jury, sir?

A I did.

THE COURT: Now, these are not being published to the

jury at this point.

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MS. GANT: I was giving Mr. Hart an opportunity to

review and confirm this is a slide to which he has no

objection, Your Honor.

MR. HART: I've already told counsel, I don't object

to this one.

Q Dr. Rock, if you could please use this slide to describe

to the jury these commercial forms of asbestos, please.

A Okay. The top row has minerals that are in what I call

"solid" but the geologists call the "massive" form. All of

these minerals occur in nature. And somewhere between 80 and

95 percent of them are in the solid and massive form. The

bottom shows the fibrous forms. When these particular

minerals are in fibrous forms, they can be mined. And then

we can strip the fibers out of the ore, and that becomes

asbestos as we know it commercially. Only a very small

proportion, on the order of ten, maybe fifteen percent of

these minerals occur in the fibrous forms in nature. It

takes a special condition of temperature, steam and cooling

to get the fibrous forms to form.

Q Dr. Rock, in your role as a certified industrial hygienist

or a professional engineer, do you have an understanding

about why companies historically included asbestos in their

products?

A Asbestos is a natural mineral, so you can get it out of

the ground. And it has properties that are very beneficial

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from an engineering perspective. Two of the three kinds of

commercially valuable asbestos have higher tensile strength

than steel. So if you need to hold something together they

work well.

If you heat them up to higher temperatures, they're very

definitely stronger than steel until they reach the point of

breaking down.

Q And to back up a moment, Dr. Rock, you mentioned there

were three primary types of commercial asbestos?

A Yes.

Q To the best of your understanding, is crocidolite at issue

in this litigation?

A Not in this litigation today.

Q Okay. And what color of asbestos would the crocidolite

reference, sir?

A That would be the blue. So it would be the lower left

corner on the slide.

Q And to the best of your understanding, sir, what types of

asbestos are at issue in this litigation?

A I misspoke, it's the middle one on the bottom row in this

slide. In this litigation chrysotile and amosite is at

issue.

Q I'd like to speak to you, sir, about how asbestos fibers

react to heat. So could you please describe for the jury,

generally, what happens to asbestos as it interacts with

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heat, sir?

MR. HART: Objection, Your Honor. Foundation.

THE COURT: I haven't heard a foundation yet.

Q Dr. Rock, in your capacity as a professional engineer and

an industrial hygienist, have you had an opportunity over the

course of your career to examine the manner in which asbestos

is going to interact with heat, sir?

A I have, yes.

Q And can you please detail that background for the jury,

please?

A In the Air Force we had lots of vehicles that had brakes.

In 1968 through '72 there was a great deal of activity within

the federal government about asbestos in brakes and whether

it was a health hazard or whether it wasn't. Brakes get hot

when you use them. And in 1968 Jeremiah Lynch published an

article where he looked and discovered the asbestos in brake

linings of the chrysotile variety converts to a non-toxic

forsterite. And that's what he found in the brake dust.

Subsequent papers have reconfirmed that with additional

details about how the asbestos reacts to heat.

Q And so can you please walk through an asbestos fiber, how

is that going to specifically react to heat as those

temperatures increase?

MR. HART: Objection, Your Honor. I object. The

asbestos by the proffering party used amosite, and the

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example he just gave was from a different product. It's a

study addressing brake linings using chrysotile asbestos,

totally different than the product at issue in the case, the

Ferroboard liner composed of asbestos. And Your Honor has

already ruled that certain studies dealing with other types

of products are not relevant as a foundation to offer

opinions in this case. Therefore, I object to Dr. Rock

offering his opinions based upon dissimilar products and

dissimilar types of asbestos.

MS. GANT: In ON Marine's discovery responses, Your

Honor, it states that the Ferroboard liner was either amosite

or a combination of chrysotile and amosite fibers. And

because of that, we need to address both of those in terms of

how they react to heat.

MR. HART: But it's a brake lining. It's not a steel

product. It's in a braking process that's entirely different

than the steel-making industry. No comparability between the

two processes between the two products, Your Honor. And the

products you've already reviewed were closer aligned than

these products. And I think it's something completely

disparate.

MS. GANT: I'm happy to lay a foundation to have Dr.

Rock address whether chrysotile in a brake lining is

comparable to chrysotile in a Ferroboard liner, Your Honor.

MR. HART: It's the product. Brake lining is

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completely different than the Ferroboard thing. A brake

lining is not an insulation product.

THE COURT: The question is how it reacts to heat,

that's the subject she wants to address. It seems to me that

it's possible a foundation could be made. I haven't heard it

yet.


A If I may, Your Honor --

THE COURT: Well, I think we -- let her ask the

questions.

Q Dr. Rock, explain for the jury, please, precisely this

question, whether chrysotile in one product is going to react

in heat the same way that chrysotile is present in a

different product.

A There will be some difference in the reaction to heat at

the very high temperatures, depending what other molecules

are around the fiber. But both types of asbestos that we're

talking about today are called hydrated metallic silicates.

And hydrated means there's water molecules incorporated into

the crystalline structure. When you start heating them, the

first thing that boils out of the crystal is the water. So

the water vapor comes out, the crystal changes shape, either

modestly or dramatically. It becomes brittle and becomes

less strong. So that's the sequence of events. And whether

you heat it with molten steel or whether you heat it in a

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brake pad, it's my opinion the effect is about the same. And

if you've ever seen a NASCAR photo of braking in a NASCAR

race, the discs that the pads come up against turn bright red

because they get almost as hot as steel.

MR. HART: Objection, Your Honor, those do not

contain asbestos. Those are non-asbestos brake linings.

THE WITNESS: Not today.

THE COURT: He's addressing me, not you. And your

objection is what? She's trying to lay a foundation. I

haven't heard a foundation yet.

MR. HART: He's laying a foundation, but then giving

an example where brake linings get hot. And they're not even

asbestos brake linings. They're not even the kind that

Jeremiah Lynch studied that he's trying to base his opinions

on.

THE COURT: All right. Ask another question.

MS. GANT: Sure.

Q Dr. Rock, if you were to look at how a chrysotile fiber of

asbestos reacts to heat, does the source of that heat matter?

A Not really, no.

Q Does the temperature itself matter?

A The temperature achieved by the fiber matters, yes.

Q Okay. And in your experience and based on your knowledge

and experience as a certified industrial hygienist, is it

your understanding that a chrysotile fiber in one product is

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going to react similarly to a chrysotile product in another

product, provided they are in similar concentrations?

A Yes.

Q And you discussed, sir -- strike that, please. And so how

is a chrysotile fiber going to react to heat, whatever the

source, if you could walk us through that process, please.

A As I said earlier, it will first lose the water that helps

hold it together. Then the crystal will recrystallize into a

different structure. Then with chrysotile, as you get up

around 800 degrees Celsius, the fiber ceases to be its normal

scroll-like. And the normal chrysotile fiber is a sheet

that's rolled around itself like a scroll. That scroll

becomes a solid needle-like substance and the needles start

to stick together. Then finally, at the high temperatures,

it melts and it becomes like molten glass.

Q Dr. Rock, are you familiar with the term tensile strength?

A I am.

Q Could you please describe to the jury what tensile

strength is, please, sir?

A Tensile strength is the force that you can pull on a piece

of rope or on an asbestos fiber or steel wire. And the

strength generally is rated at before it breaks.

Q How does the application of heat impact the tensile

strength of a chrysotile fiber?

A As the water is driven out of the crystal, the tensile

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strength of the fiber decreases, it becomes weaker.

Q And does tensile strength have any impact on whether or

not that chrysotile fiber remains in a toxic form?

A There's evidence from animal studies and less so from

human studies that fiber, whether asbestos or not, that are

more durable in the lung are more potent for disease. When

you have a fiber that's been heated and has a lower tensile

strength, it breaks more easily into small pieces, can be

cleared from the lung the same way ordinary dust is. And the

incidence and intensity of disease, of all of the asbestos

diseases, is therefore lower with weaker fibers.

Q So, Dr. Rock, if you are taking chrysotile fibers and you

are exposing them to temperature, is there a point at which

that chrysotile fiber is going to become a non-toxic

substance?

A Above 900 degrees Celsius. And I agree here with Dr.

Longo, the asbestos fibers cease to be a source of asbestos

diseases.

Q Now, what substance does that chrysotile fiber, once it

detoxifies, what does it turn into?

A Along the way of detoxifying, the chrysotile fiber becomes

a fiber called forsterite, for which we have no information

of any toxicity. And then as temperature gets a little

higher, it melts and it becomes a glass. And at that point

it's no longer respirable and not a respiratory hazard.

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Q So as a board certified industrial hygienist, do you have

an opinion as to whether exposure to forsterite increases the

risk of mesothelioma?

A I've seen no evidence that it does. So my opinion is it

does not.

Q And with respect to amosite asbestos, what happens to an

amosite asbestos fiber when it is exposed to heat?

MR. HART: Excuse me, foundation as to amosite.


Q Dr. Rock, in your capacity as a board certified industrial

hygienist, have you had an opportunity to review how amosite

may react to heat, sir, in the course of your career?

A I have.

Q Okay.

MR. HART: Objection, Your Honor, this is outside the

scope of his deposition and his reliance materials provided

to us.

MS. GANT: I don't believe that's an accurate

statement, Your Honor. Dr. Rock testified at his deposition

as to both chrysotile and amosite fibers and expressed

opinions in a written report.

MR. HART: We asked were there any articles that he

based an opinion on amosite, and he says, "I don't recall

any." He did talk about the Lynch paper, which is the

chrysotile paper.

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THE COURT: Well, I haven't had the benefit of

reading the deposition, so if counsel is correct, then I'm

not going to let you go into it.

MS. GANT: He expressed opinions as to the impact of

heat on amosite fibers at his deposition, sir.

MR. HART: Then we object on foundation if he doesn't

have a basis to give those opinions. We asked for the basis

at the deposition. He could not cite us to any published

article, any study, any information other than the Jeremiah

Lynch paper he just described, which deals with chrysotile.

MS. GANT: If I may, Your Honor, this is not -- this

is -- no one is being blindsided here. Dr. Rock expressed he

had an opinion on this basis. And there are numerous studies

that recited --

THE COURT: Did he give his opinions in the

deposition?

MS. GANT: Yes, sir. And there were numerous studies

cited by Ms. Raterman, Dr. Longo, those were materials not

cited in their deposition and they did not give reports. So

by way of example, Dr. Longo expressed opinions about the

EPA.

THE COURT: We're not talking about the plaintiff's

experts now, we're talking about this particular expert and

what he said or didn't say in his deposition.

MS. GANT: He did say, sir, he testified about the

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impact of heat on amosite fibers. That is an opinion that

has been disclosed.

THE COURT: All right. I'm going to permit the

witness to continue with the testimony.

MR. HART: All right. And may I inquire, when it's

my turn, on the foundation?

THE COURT: Certainly.


Q So, Dr. Rock, with respect to amosite asbestos, does

amosite go through a similar process to chrysotile when it is

exposed to heat?

A Yes. Amosite starts as a crystalline needle, hydrated

metallic silicates. As the water is driven off, the physical

properties of the needle change, and eventually at a slightly

higher temperature than for chrysotile, it too will melt.

And for both fibers, if they're not in a petri dish or

asbestos is the only thing present, there may be contaminants

around so that the final melting stage looks more like dust

or ash than it does like a pool of molten glass.

Q So is there a point at which an amosite fiber, when

exposed to heat, is going to detoxify, become a non-toxic

fiber or non-toxic substance?

A It becomes less toxic somewhere between 3 and 500 degrees

Celsius and becomes non-toxic somewhere between 900 and 1,000

degrees Celsius.

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Q What does it become at those upper temperatures? What

substance does it become?

A Well, the best way to describe it in the context of this

case, it becomes like an ash.

Q Okay. And from your perspective as a board certified

industrial hygienist, is that ash toxic?

A It's not known to be toxic. It's not known to increase

the risk of mesothelioma. As an industrial hygienist I don't

advise the inhalation of any avoidable dust.

Q There has been some testimony in this case, Dr. Rock, that

one gram of five percent amosite can generate 90 billion

fibers. Do you have an opinion as to whether 90 billion

fibers could remain after chrysotile or amosite asbestos has

been heated to over that, say, 900 or 1,000 degrees Celsius?

A I would be very surprised if there were respirable fibers

after the heating to those temperatures.

Q Are you aware of any published governmental or scholarly

materials that address this topic, sir?

A And the topic in this question is --

Q Excuse me, and the topic being the impact of heat upon

amosite or chrysotile fibers?

A The earliest report that laid the foundation for all

subsequent reports was written by Dr. Vorwald in 1951.

MR. HART: Excuse me, Your Honor, may we have a side

bar, please? This goes to his deposition foundation and

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disclosures made there. It will avoid repeated objections.

(Court and counsel met at side bar as follows:)

MR. HART: Your Honor, they're getting into the

objectionable portions of the slides and the bases I object

to them. At his deposition he revealed the Lynch paper and

another paper that the lawyers had sent him from 2011. He

didn't discuss this Vorwald paper, didn't reveal it. Another

paper cited in there counsel has on her slide, the Davies --

Davis or something like that. That's it.

MS. GANT: I apologize. I don't recall off the top

of my head.

MR. HART: Your slide.

MS. GANT: Oh, Davis is on my slide, yes.

MR. HART: None of this was disclosed at his

deposition or his opinions to us. This is reliance materials

that we were not provided. And we asked specifically, do you

know of any articles discussing amosite? And he says, "I

don't recall any." And I can give you the deposition

transcript where he says exactly that. And we couldn't

prepare --

THE COURT: Well, I indicated in earlier rulings that

it would be bound to their depositions. If he didn't

disclose, it was asked and didn't disclose it, he can't

testify about it.

MS. GANT: He testified to the opinion, Your Honor,

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and some of the materials that he --

THE COURT: If he didn't -- if his opinion is based

on reports that he didn't disclose, he can't talk about those

reports that he didn't disclose, or those studies. Whether

he has an opinion that remains, I don't know.

MR. HART: And that's the trouble we have is we

couldn't test the validity of his opinions without the

underlying information. And that's why I was objecting to

him talking about amosite, because he didn't give us any

basis to judge it. And I think it's a Daubert issue.

THE COURT: You didn't move to challenge him.

MR. HART: We didn't move it --

THE COURT: It's a little late to --

MR. HART: Under Ninth Circuit rules I'd have to

object now even if you had ruled pretrial.

THE COURT: I understand.

MR. HART: This is a very specific one. These three

articles they have listed there, we asked, we tried to get

it. After the deposition, we didn't receive any disclosures

from counsel saying: Here's what he was talking about.

MS. GANT: If I may.

THE COURT: I think I've heard enough. If he didn't

disclose the articles, he can't talk about those articles.

MS. GANT: Your Honor, may he -- I didn't mean to

interrupt, sir. May I ask a question?

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THE COURT: Yes.

MS. GANT: There are some materials that were cited

by Dr. Longo that we would ask he be able to respond to Dr.

Longo's position on, as Dr. Longo similarly did not cite the

APA materials in his deposition.

THE COURT: This is not Dr. Longo, this is Dr. Rock.

And his deposition was taken. And you should be bound by

whatever he said or didn't say in the deposition.


(The side bar concluded.)

MR. HART: Your Honor, I move to strike Dr. Rock's

last answer.

THE COURT: And the last answer I think dealt with a

report from a Dr. Vorwald. And that answer will be stricken.

The jury is to disregard it.

The court previously ruled in connection with motion

practice that the lawyers presented to me that the witnesses

should be limited to what they relied upon and talked about

in their depositions, which were taken prior to trial, so

that the other side could understand what a particular

witness was going to say.

And apparently this report -- I haven't read the

deposition -- but counsel is representing to me that that

report was not testified to at the deposition. That's the

basis for my ruling. And there may be other issues that we

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have to address. But that's the reason why I'm attempting to

draw a line and allow the witness to testify where he

provided the plaintiff's counsel with information at the dep.

Go ahead and ask another question.

MS. GANT: Thank you, Your Honor.

Q Dr. Rock, I'd like to speak with you about a 1994 powder

diffraction study by Jeyaratnam and West. Dr. Longo

testified that --

MR. HART: Excuse me, Your Honor, this was something

else that was not discussed in Dr. Rock's reliance materials

or deposition.

MS. GANT: I don't intend to ask Dr. Rock about any

reliance on this. I tend to ask whether he agrees with Dr.

Longo's analysis of the study, Your Honor.

MR. HART: That's not a proper question to an expert.

It's something that he did not consider, he did not review.

THE COURT: All right. I'm going to sustain the

objection to the last question, which was, "I want to speak

to you about this study by this --

MS. GANT: Jeyaratnam.

THE COURT: Jeyaratnam. Ask another question.

Q Dr. Rock, in your review in this matter, did you have an

opportunity to review any data about the temperatures reached

specifically by the Ferroboard liners?

A I did, yes.

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Q And did you rely upon this information for purposes of

forming your opinions?

A I did, yes.

Q The data that you reviewed, is this the type of data that

is commonly relied upon by others in the industrial hygiene

or engineering communities?

A Yes.

MR. HART: Excuse me, Your Honor, is this the Mishra

-- this is something else that was not relied upon by the

witness. He didn't discuss it. He didn't disclose it to us.

He didn't even know about it at the time when we took his

deposition. And counsel hadn't bothered to tell us since

that time he was going to testify about this. I'm sorry to

keep interrupting.

MS. GANT: That information was disclosed in the

pretrial order, Your Honor. And Dr. Mishra had not been

deposed at the time Dr. Rock had been deposed. That was not

something logistically feasible. It was clearly stated in

the pretrial order that Dr. Rock intended to review the

materials by Dr. Mishra and provide an opinion on that basis.

MR. HART: Your Honor, with all due respect --

THE COURT: Just a minute. I'm going to overrule the

objection to the last question which was, "The data you

reviewed is this the type you commonly review? Answer:

Yes." That will stand. We'll have to deal with this

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question-by-question.

MR. HART: She's pulling up the data by the other

witness, and that's what I'm objecting to. I didn't object

to those questions. There's another witness who is going to

testify who did a study that was never shown to Dr. Rock

until probably today at lunch. But it was something that we

didn't have the benefit of to ask him about.

THE COURT: You can voir dire him and ask him when he

first learned about it and whether he testified about it or

provided it to you in the deposition. You can ask him now.

MR. HART: Thank you.

VOIR DIRE EXAMINATION

BY MR. HART:

Q Dr. Rock, when did you first review the information from

Dr. Mishra?

A I believe it was the 29th of November when I got his

deposition transcript. It might have been the first two days

in December.

Q Well, this is the 6th day of December, so you might have

gotten it this week?

A Or last week, yes.

Q And that's when we started trial, on Monday?

A Right.

Q We did the pretrial last Wednesday. You got it after the

pretrial; is that fair, after Wednesday?

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A If the 29th is after Wednesday, then, yes.

Q According to my calendar, sir, last Wednesday was the

27th. So the 29th was Friday. After Thanksgiving?

A Yes. Then I got it after your pretrial.

Q And you did not have this at your deposition? We didn't

talk about it?

A That's correct.

MR. HART: Your Honor, we move to exclude any

discussion about this by Dr. Rock.

MS. GANT: And if I may ask a foundational question,

Your Honor?

DIRECT EXAMINATION (Cont.)

BY MS. GANT:

Q Dr. Rock, did you receive Dr. Mishra's report before you

received Dr. Mishra's deposition?

A I did.

Q When did you receive his report, sir?

A I believe it was the middle of October.

Q And that was after you had been deposed in this case,

correct?

A Yes, that's correct.

THE COURT: Help me understand what Dr. Mishra's

report has to do with what this witness is going to be

relying upon to testify about.

MS. GANT: Dr. Mishra will testify that he did

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something called a finite element analysis.

THE COURT: He's one of your witnesses, we haven't

heard from him?

MS. GANT: He measured the temperatures reached by

the Ferroboard liners.

THE COURT: I'll wait to hear from him. This is to

what extent can this witness testify to which he didn't

disclose under his deposition.

MS. GANT: Under the case schedule - this was under

the King County schedule -- we timely disclosed Dr. Mishra's

testimony. It just so happened that happened to be after Dr.

Rock was deposed. Dr. Rock was deposed when this case was

going to go to trial in King County mid-November. At the

point in which this went to federal court, Dr. Mishra was,

again, timely disclosed. It just happened to be after Dr.

Rock was deposed. This is something that we clearly stated

in the pretrial order. This is not something where people

should be surprised.

THE COURT: What is in the pretrial order that you're

relying upon?

MS. GANT: If I may grab a copy of it, Your Honor.

MR. HART: Your Honor, I have the pretrial order and

under item, Expert Witness No. 1, it's on page 12 of my copy

of the pretrial order, Your Honor --

THE COURT: Just a moment.

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MR. HART: And where they disclose Dr. Rock. Number

one, we don't believe it's proper to change any disclosure at

the pretrial stage. This was signed last Wednesday. And

number two, Dr. Mishra's name is not mentioned in here, let

alone his report.

MS. GANT: This indicates Dr. Rock is going to

testify that asbestos in the Ferroboard liners converted to

innocuous substances when exposed to the high temperatures of

molten steel.

THE COURT: What line?

MS. GANT: Approximately lines 21, 22. This is the

opinion.

THE COURT: Well, it's in the pretrial order and I'm

going to permit him to testify about opinions that are

related to what's stated here. But he won't be permitted to

rely upon things which weren't disclosed during his

deposition.

MS. GANT: If I may, Your Honor, it was a logistical

impossibility, because Dr. Mishra was still timely disclosed,

it just happened to be that that was after his deposition.

THE COURT: Well, does this witness have -- without

relying on some other expert or some other report -- a basis

for testifying that any asbestos in Ferroboard liners would

convert when exposed to high temperatures of molten steel?

MS. GANT: Yes, Your Honor, based on his knowledge

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and experience as a certified industrial hygienist.

THE COURT: Well, I haven't heard that foundation,

yet.

MS. GANT: I'll be happy to make it.

THE COURT: If you can lay it, I'll allow the witness

to testify about it.

Q (By Ms. Gant) Dr. Rock, over the course of your

professional career, have you had an opportunity to examine

how asbestos reacts to heat?

A Yes.

Q And over the course of that career -- strike that, please.

Can you please tell the jury the context in which you gained

that experience, sir?

A In the '80s and into the early '90s federal agencies,

including the U.S. Air Force and EPA, were looking at

something called in situ vitrification as a means of

disposing of hazardous materials, including asbestos.

Members of my laboratory were involved in the field studies

of that. And we knew that when you have asbestos in

55-gallon drums, and other things in a landfill, that you

melt that to make it glass, the asbestos is no longer toxic.

And that was all forms of asbestos.

Q And so members of your laboratory participated in the

underlying data for this research. Did I understand that

correctly?

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A Yes. They were part of the field team.

Q Did you have an awareness of this research while it was

being conducted?

A I did.

Q And is that something that informs your opinions in this

case?

A Yes. It's one of the bases for my understanding that

asbestos melts when it gets hot.

Q Do you have other bases for that opinion, sir?

A Yes.

Q Please detail those bases for the jury.

A As I mentioned earlier, the asbestos is formed from molten

rock, when there's enough steam around and the pressure is

right and it's cooling off at the right rate. So it starts

as a melt. We can melt it again if we add enough heat, which

means adding energy. And at that point it's no longer

asbestos. It does not have the toxicological properties of

asbestos fibers.

Q And so setting aside what Dr. Mishra will testify to, do

you have an opinion, sir, as to whether chrysotile fibers in

a Ferroboard liner that was present at Bethlehem Steel would

have reacted in the same way that you have previously

described chrysotile fibers reacting to heat?

A Yes.

Q And please detail the basis of your opinion to the jury.

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A Well, the basis is the well-known, well-established

dehydration of asbestos fibers as they heat up, and the

eventual transformation of those fibers into a different

crystalline structure with a bigger diameter, which turns out

to be both not respirable and not toxic if ingested.

Q And similarly, do you have an opinion, sir, as to whether

amosite fibers that may have been present in a Ferroboard

liner at Bethlehem Steel, would they have reacted in the same

manner to heat that you've previously testified to?

A The amosite fibers react in a similar fashion. But the

points where they change structure tend to be 50 or

100 degrees higher than for chrysotile. Chrysotile is not

quite as thermally resistant as the amosite.

Q So, do you have an opinion, sir, as to whether any

chrysotile in a Ferroboard liner that may have been present

at Bethlehem Steel, after exposure to -- well, let me back

up. Do you have an understanding about what temperatures

that molten steel was poured at, at Bethlehem Steel?

A The pouring temperature for steel is on the order of

1,600 degrees Celsius, so about 50 percent above the end of

the asbestos form of these minerals. They end between 900

and a thousand degrees. And steel gets poured around

1,600 degrees Celsius.

Q For those of us that are not particularly familiar with

Celsius, can you please convert that into a Fahrenheit

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number?

A It's about 2,900 degrees Fahrenheit.

Q So if an asbestos board liner was exposed to 2,900 degrees

of molten steel at Bethlehem Steel, what would have happened

to any chrysotile fibers inside of those Ferroboard liners?

A As the heat wave progressed through the Ferroboard liner,

the chrysotile would be dehydrated, then detoxified, and then

it would be recrystallized. And the testimony from

Mr. Turner and others, I think Mr. Schiller, was that it

looks like dust after it has been used. It's a one-time-use

product. Ash or dust.

Q Is that ash or is that dust, is that a toxic substance or

non-toxic substance?

A With regard to mesothelioma, it's non-toxic.

Q Why do you say with regard to mesothelioma?

A Well, I view all dust as a possible pathogen, even the

so-called nuisance dusts. It's just not health-wise a good

thing to breathe dust. So insofar as the ash has

respirable-size dust particles in it, I still advise against

breathing it. But it has not been shown in animals or

anybody else to cause mesothelioma.

Q And so is it your opinion, sir, that any of that non-toxic

dust or ash, would that have increased the risk of

Mr. Turner's mesothelioma?

A No.

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Q Same --

A In my opinion.

Q And in your opinion as a certified industrial hygienist,

I'd like to ask you those same questions with respect to

amosite. If there was amosite present in a Ferroboard liner

at Bethlehem Steel, would that amosite have converted to a

non-toxic ash?

A As I've testified at my deposition, in my opinion, yes.

Q And is the basis for your opinion what you've similarly

just testified to, sir?

A Yes. It's a different type of asbestos, but it's still in

the hydrated mineral silicate family.

Q And is that non-toxic ash, would that have increased the

risk of mesothelioma for Mr. Turner to the extent that he was

exposed to?

A Not by anything that we know from epidemiology, nothing

from toxicology in animals.

Q Do you have an understanding, based on your review of the

records in this case, sir, as to whether Ferro sold

asbestos-containing, and/or asbestos-free products to

Bethlehem Steel?

A I understand they sold both.

Q And what is the basis of your understanding, sir?

A Oh, there's so many documents in this case. There were

some sales records that were very small and very hard to

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141

read. There were some letters, I believe, in the file.

Q Okay. And speaking of those, I'd like to draw your

attention to a document that has been previously admitted.

This is Exhibit 3017. Is this a record that you reviewed

when completing your analysis in this case, sir?

A It is, yes.

Q And what is your understanding of what this record is?

A I understand this to be the ledger book in which Oglebay

Norton Company kept track of sales to Ferro Engineering, as

it says at the top.

Q Do you see where I have highlighted 1/28/74?

A I do, yes.

Q What is your understanding, based on your review of the

records in this case, including this, as to the significance

of that January 28, 1974, date?

MR. HART: Objection, Your Honor, I think the record

speaks for itself.

THE COURT: Overruled. You may answer the question

if you can.

A I understand that the 28th of January 1974 was an order

for Ferroboard liner.

Q And do you have an understanding as to whether that is

asbestos-containing or asbestos-free Ferroboard liner?

A I understand that it's asbestos-containing. The next line

says non-asbestos, and I believe that date looks like the

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14th of March, 1974.

Q Okay.

A And I believe everything below that March date was shipped

as non-asbestos Ferroboard liner.

Q What is the basis of that understanding, sir?

A It is testimony -- it wasn't Gabriel -- I guess I forgot

the name of the man who testified about that. He was a

salesman for the company.

Q Okay. Now, would it change your professional opinions in

any way if Ferro only sold Ferroboard liners that were

asbestos-containing between '73 and '76?

A It would not change my overall opinion that asbestos was

not released from the hot top during the creation of ingots

and the pouring of molten steel. Because I believe the

asbestos was converted to a different mineral substance.

Q Okay. I'd like to talk about the melt shop, sir. In your

professional opinion as a certified industrial hygienist, do

you have an opinion as to whether Mr. Turner was exposed to

any asbestos-containing Ferroboard liner in the melt shop?

A I understood from his testimony that he did not work in

the melt shop. So I don't believe he was exposed in the melt

shop.

Q Do you have an understanding about what happened to the

Ferroboard liner itself when it was exposed to that molten

steel at 2,900 degrees?

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A I understand that it was a one-time use product, and that

it was reduced to dust or ash in the course of that one use.

Q Okay. What impact does the fact of this disintegration

have upon your analysis, if any?

A Well, the disintegration is caused by the intense heat

that detoxifies the asbestos by converting it into a

non-asbestos substance. And this is both the chrysotile and

the amosite.

Q With respect to the cooling yard, do you have an opinion,

sir, as a certified industrial hygienist or engineer, as to

whether Mr. Turner was exposed to any asbestos-containing

Ferro product in the cooling yard?

A As I recall his testimony, his -- he didn't work in the

cooling yard, but he occasionally drove the crane that lifted

these ingots into and out of the cooling yard. So he was

125 feet above them. I do not think there was any chance of

an exposure, for two reasons: I don't believe there was any

asbestos in the ingot mold when it got to the cooling yard.

And I don't believe that the dust was getting up to the cab

of the crane.

Q I would like to draw your attention, sir, to a document

that has been previously admitted as Exhibit 563. Dr. Rock,

do you have an understanding of what a sinkhead is?

A I believe I do.

Q And can you please explain to the jury what a sinkhead is?

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A The sinkhead is the part of the steel that, when it's

poured into the ingot mold, resides and is surrounded by the

Ferroboard liner of the hot top.

Q Does this picture contain a portion of that -- does this

depict the sinkhead in any way?

A Yes, I believe it does. And let me see if I can show it,

here.

The narrow-necked part at the top is where the Ferroboard

liner is contained by a cast-iron hot top. The purpose of

that is to maintain molten steel at the top as the steel down

in the ingot itself cools off. And as it cools it tends to

shrink. So the molten steel up here on the top will dribble

down into any crevices that are formed as the steel cools and

maintain the integrity of the ingot. The ingot is the

profit-making part. The steel that's in the hot top contains

slag and other impurities. It's cut off quickly, and it

doesn't go into the rolling mills. It doesn't go for further

processing.

Before hot tops were used, these impurities sometimes

remained in the ingots, and there was a lot of rework

necessary in the steel mills. So the hot top was a quality

control issue whenever you wanted to make high-quality

high-strength steel.

Q Dr. Rock, do you have an understanding, based on your

review of this case or otherwise, about whether it would be

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even practical for a sinkhead to remain on an ingot after it

was taken out of the hot top?

A Well, I guess in a word, it would be incongruous, because

you put the hot top on here in order to collect the stuff

that ruins the steel. To leave it on and send it to the

rolling mill would ruin that batch of steel. So you cut the

garbage off and leave it behind.

Q Do you have an understanding, sir, based on your review of

records in this case or otherwise, whether there is any

portion of the Ferroboard liner that would have been touching

the ingot itself?

A I do have an understanding.

Q And please explain that understanding to the jury, please.

A The hot top is a -- as I'm using the term right now -- is

a cast-iron molding piece that fits there and there.

(Indicating) And pretty much this inner layer of lines that

I've drawn is where the Ferroboard liner would contact the

molten steel in the neck-down area of the sinkhead.

Between this and the ingot there is a ring that goes all

the way around. It's like a donut, it goes all the way

around and sets on the top of the part that becomes the

ingot. In the Bethlehem Steel plant that we're looking at, I

understand that was sand, it was not an asbestos-containing

material.

So the hot top and the Ferroboard liner sat on the sand

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146

ring, and the sand ring sat on the ingot mold and there was

no direct contact between the ingot that was molded and the

Ferroboard liner.

Q And so do you have an understanding, sir, whether from

your review of records in this case or otherwise, whether

there would be any portion of the Ferroboard liner that would

have come into -- come to be embedded in the actual body of

the ingot as opposed to the sinkhead?

A I can't imagine any way that it happened. There was no

physical contact and there was a sand ring barrier between

the ingot and the sinkhead that is formed inside the

Ferroboard liner that's inside the cast-iron hot top.

Q Okay. The jury has heard testimony, Dr. Rock, that the

next step in the process was that the ingot would be scaled.

So do you have an understanding what scaling is, sir?

A Yes.

Q And please tell that to the jury.

A The steel comes out of the ingot mold after the sinkhead

is cut off. And in order for it to get out, the mold is

first coated with some oily substances that act as a

lubricant when you're taking it out . That creates a scale

on the surface. All kinds of carbon and sulfur and all kinds

of compounds that sit on the surface, they would not be a

good thing to have in the finished steel. So scaling is

scraping those off, then using other techniques to get all of

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147

those surface impurities off of the ingot before it goes

through the mill.

Q In your professional opinion, sir, was Mr. Turner exposed

to any asbestos-containing Ferroboard liner in the scaling

process?

A No.

Q And in your professional opinion, did any part of the

scaling process increase Mr. Turner's risk of mesothelioma?

A No.

Q What is the basis for that opinion, sir?

A Well, NIOSH studied the steel industry looking for

diseases, and they reported lung cancers, and they identified

the lung cancers as most likely being caused by the organic

molecules that are associated with, in part, with the rolling

and earlier in the process with the ingot mold and de-molding

steps. They did not identify mesothelioma as a risk factor

in the steel industry.

Q The jury has heard testimony, Dr. Rock, that the next step

in the process, that the ingot is reheated and rolled into

billets at the 32-inch mill. Do you have specific data

indicating the temperature at which that ingot was reheated

when it went through the 32-inch mill?

A I don't have specific data.

Q Are you able to estimate that temperature based on

evidence that is reasonably available to a board certified

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industrial hygienist such as yourself?

A I can.

Q Okay.

A As I appreciate it, it's a hot-rolling mill. And that

means that it's certainly below the melting point of steel.

So it's very likely that they run it up to about a thousand

degrees Celsius in order to make it malleable enough to have

its size shaped by the squeeze rollers in the mill as it goes

back and forth through the rollers.

Q Dr. Rock, did you prepare a graph that might be helpful to

the jury that talks about some of these temperatures?

A I did my best.

Q Is that that graph, sir?

A Yes.

Q And if you could please detail to the jury these

temperatures that you've been referencing at different stages

of the process.

A Well, here for the first time in my presentation, on the

right side I've got temperatures in degrees Celsius and

degrees Fahrenheit. So you can use whichever scale you like.

100 degrees Celsius and 212 Fahrenheit you'll recognize,

perhaps, is the boiling point of water. And I made a note

that those temperatures will burn exposed skin.

Then the temperatures increase. Going down the column, at

around 200 Celsius or 400 Fahrenheit, chrysotile and amosite

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both start to lose water. The water loss continues up to

about 600 for chrysotile and 700 for amosite. The chrysotile

fibers are brittle and they have become thick and solid

instead of like rolled scrolls. The chrysotile converts to

forsterite somewhere around 800 to 850 degrees Celsius which

is about 1800 degrees Fahrenheit. It becomes glasslike at

the temperature of red-hot steel. And that's around

1,000 degrees Celsius or 1,832 degrees Fahrenheit. It

becomes glasslike in the literature in under two hours. And

you can melt steel at 1,400, or pour steel at 1,600 degrees

Celsius. At that temperature range the EPA, in looking at

the in-vitro glassification that my laboratory participated

in, determined that the glass transition occurred in less

than three minutes. Their report actually said two to three

minutes.

Q So, Dr. Rock, I'd like to kind of unpack some of the

things that you've said here. First, I don't see amosite,

the temperature at which amosite would convert to a non-toxic

ash on your chart. Can you please detail that temperature

for the jury?

A Well, the glass transition there at a thousand

degrees C, it's in that vicinity give or take about

50 degrees. And that depends in part on which formation the

amosite came from.

Q Okay. And then we were speaking initially of the

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150

temperatures that were reached in the 32-inch mill. Where

would that fall on this graph?

A I believe it would be in the chrysotile to forsterite

transition range, or the chrysotile and amosite glass-forming

range, between 800 and a thousand degrees Celsius.

Q Perhaps I asked a bad question, sir. Does your graph

reference, when the steel was reheated, when it was put

through the 32-inch mill to be made into billets, does it

reference a temperature that steel would have reached?

A It would be red hot steel temperature.

Q That's that 1,000 degrees Celsius, 1,832 Fahrenheit?

A Right.

Q Okay. Now, there has not been any testimony in this case,

Dr. Rock, that people saw glass particles after the pouring

of the molten steel. If, according to your analysis that

when it reached these temperatures it should have turned into

a silicate, why wouldn't we see glass?

A At these temperatures when you have 6 percent asbestos,

which I understand was the nominal formulation of the

Ferroboard liner, you've got 94 percent other materials, many

of them organics. And they keep the asbestos fibers apart so

they can't form a pool of glass. They become part of this

ash system.

Q And to the final step in the process, the jury has heard

testimony that Mr. Turner worked in the 22-inch mill doing

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various tasks, but including approximately 30 percent or

40 percent of his time as a scarfer. Do you have an

understanding what scarfing is, Dr. Rock?

A I do.

Q If you could please detail your understanding for the

jury. And if I may, there is a demonstrative to which I do

not believe Mr. Hart has any objection that might be useful.

A Scarfing is done with a long torch, it's an acetylene

torch. The scarfing worker has triggers so that he can add

oxygen or acetylene to his flame. What that means in the

welding or scarfing world means his flame can be reducing or

oxidizing. And in the scarfing torch it can go all the way

to one hundred percent oxygen.

So he uses this torch to heat the face of the billet

before it goes into the 22-inch rolling mill to get flattened

into sheets. And he uses the torch to heat the steel until

it's near the melting point. Then he adds oxygen and burns

some of the steel, makes it even hotter. Steel becomes a

fuel here. And he pushes a sort of a puddle of steel across

the edge, taking the debris with it. Once again, they want a

clean surface going into the mill, they don't want any

inclusions in the steel that would weaken it. So this

scarfing is the last cleaning step before it goes into the

22-inch mill that finished it into it's near final form.

Didn't make I-beams, but it made the right size slab that

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I-beams could be built, or the panels that are used to create

ships could be cut and molded.

Q So you referenced two different aspects, the high-pressure

air hose and that acetylene torch. I'd like to break those

down if I might. So, Ms. Raterman, Dr. Longo and Dr. Brodkin

testified that the use of that acetylene torch did not

increase Mr. Turner's risk of mesothelioma. Do you agree

with that analysis Mr. Rock?

A I do.

Q If you could please tell the jury why.

A There is no asbestos here. This is a long ways away.

It's at least a football field, maybe a quarter mile away

from where the asbestos liner boards were installed. But the

asbestos was destroyed in the use of those liner boards. So

there's just -- there's no asbestos associated with Ferro in

this work zone.

Q And to the extent that there was somehow this dust or

particulate, do you have an opinion as to whether or not that

was a toxic or non-toxic dust?

A With regard to mesothelioma it's not toxic. With regard

to lung cancer, based on what NIOSH found, it may well be.

Q And is it your understanding that Mr. Turner has lung

cancer, sir?

A No, it is not.

Q Now, the jury has also heard testimony that Mr. Turner was

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exposed to an asbestos-containing Ferro product when he used

that high-pressure hose, and dust or particulate or residue

would come into his breathing zone. Do you agree with this

analysis Dr. Rock?

A There is no Ferro product in this part of the steel mill,

so no, I disagree with that.

Q Dr. Longo provided some testimony asbestos fibers may

circulate in the air for some period of time. In your

opinion was Mr. Turner substantially or significantly exposed

to asbestos deriving from any Ferroboard liner that would

have been circulating in the air?

A In my opinion, no.

Q And please state the basis of your opinion, sir.

A The Ferroboard liner, as I understand it, had the

consistency of brick. It was not a dust-producing material

until it was destroyed in pouring of molten steel. And when

it was destroyed, there was no asbestos. So it was not a

source of asbestos that could be recirculated in a steel

mill.

Q I'd like to switch gears a bit, Dr. Rock. In your review

of the facts in this case and the records in this case, did

you have an opportunity to examine any asbestos exposures on

the USS Cunningham?

A I did.

Q And what information did you learn from your review of

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this case?

A Well, I learned that Mr. Turner served as a sonar operator

on a destroyer, the USS Cunningham. I learned that at the

time the USS Cunningham was decommissioned and refitted for

future service, he spent some period of time, perhaps months,

in the mechanical zone while it was in the shipyard.

And that's sort of a normal event for Navy sailors, when a

ship goes into a shipyard for refit there's work that's

specified for the shipyard personnel. And the Navy uses its

own sailors to do as much as it can. And the sailors live

aboard in most cases.

That is an asbestos-dust-intense environment when that's

going on in the shipyard. So he had substantial exposures

from whatever period of time that represents. And the

testimony is ambiguous on that point in duration.

Q There's also testimony this ship was used in the Vietnam

War and that guns were fired. Do you have any opinions, sir,

based on your knowledge and training as an industrial

hygienist about whether or not that would have disrupted any

asbestos fibers that were present on the USS Cunningham?

A Yes. The firing of big guns does cause vibrations, does

cause dusting from the insulation on the ships. I've seen

that testimony in other cases.

Q Do you have an understanding, sir, about any exposures

that Mr. Turner would have had while he was below deck? I

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believe the testimony is that he was a sonar technician and

may have worked above deck. But do you have any opinions

about exposures he might have received below the deck?

A The exposures below deck were sufficient, according to a

paper by Rice and Heinemann published in 2003, that those

sailors are at risk of mesothelioma, not as high as those who

were continuously below deck because they were assigned, for

example, to the fire room or engine room, but still well

above the background spontaneous rate of mesothelioma.

Q Okay. And, again, I'd like to switch gears a bit here,

Dr. Rock. Did you review ON Marine's interrogatory responses

in this case?

A Yes.

Q Were they helpful in forming your opinions?

A They were helpful, yes.

Q Do you have any information whether, based on the

interrogatory responses or otherwise, documents that were

produced therewith again, or otherwise, about any

communications that Ferro would have made to its customers

such as Bethlehem Steel about any asbestos content in its

products?

A There was such correspondence mentioned, I think maybe

attached as an exhibit. There was correspondence with an R&D

group at Bethlehem Steel, I think announcing the availability

or querying about the availability of asbestos-free hot top

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liners.

Q Sir, did you review the formulas in this case, the

exemplar formulas that Ferro -- that ON Marine produced in

this discovery?

A I did.

Q And what, if anything, did they say, to the best of your

understanding?

A It appeared to me that most of the formulas had asbestos

in the neighborhood of 6 percent. And it was a mixture of

chrysotile and amosite, or it was all amosite, for the

formulas that I looked at.

Q Okay. Dr. Rock, in your review in this case did you

receive portions or all of Ferro's supplemental interrogatory

responses, the documents that were part of --

A Yes.

Q And is this letter here a document that you received that

was part of ON Marine's supplemental interrogatory responses?

A I recognize it, yes.

Q And is this a document that you relied upon when

formulating your opinions in this case?

A Yes, it was.

MS. GANT: I would move for admission of this

document under the ancient document exception, Your Honor.


MR. HART: Just finishing up looking at it, Your

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Honor. I don't think I have an objection. No, sir.

THE COURT: It will be admitted.

(Exhibit No. 3038 was admitted into evidence.)

THE COURT: Do we have a number for that? Is it a

new exhibit?

MS. GANT: It is not a new exhibit, and I apologize.

It is 3038.

THE COURT: That will be admitted.

Q Dr. Rock, there's been testimony in this case where

Ms. Raterman was critical of Ferro for failing to substitute

asbestos-free products before January of 1974. In this

letter -- is this a letter that you reviewed in analyzing

whether ON Marine was attempting to substitute an

asbestos-free product prior to that time?

A Yes, it is.

Q Okay. And what is your understanding about Ferro's

efforts to substitute those products, based on this record,

or otherwise?

A Based on this record Ferro was field testing an

asbestos-free formulation of its hot top liner at the

Lackawanna plant of the Bethlehem Steel Corporation, and this

was apparently an announcement so the purchasing agent could

double check what they had been buying to decide how soon

they want to buy the asbestos-free product.

Q And am I correct that this document is dated May 1st of

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1972, Dr. Rock?

A Yes.

Q And so this indicates, "We currently have field tests

underway with Ferroboard materials completely free of

asbestos. Lackawanna is one of the plants testing these

materials and all reports to date are satisfactory." Did I

read that correctly, Dr. Rock?

A Yes.

Q Are you aware of any information in this case as to why

Bethlehem Steel may not have chosen to purchase asbestos

products prior to that January 1974 timeframe?

A I don't recall any information that would help me answer

that question.

Q And are you aware of other evidence in the record, sir,

about Ferro's interactions specifically with Bethlehem Steel

in attempting to test asbestos-free products prior to Mr.

Turner's employment at Bethlehem Steel in 1973?

A There were a lot of documents in this case. I may be

partially confused. But I think there may have been a letter

around the time of the 1969 patent.

Q Okay. I'm going to switch gears a little bit and I'd like

to speak specifically about caution labels. Now, as part of

your review of the interrogatory responses, which have been

previously admitted in this case, did you review ON Marine's

response to Interrogatory No. 8?

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159

A Yes, I did.

Q And could you please read the highlighted portions of that

document?

A In 1971 defendant commenced a labeling program using the

following label: "Caution, contains asbestos fibers. Avoid

creating dust. Breathing asbestos dust may cause serious

bodily harm." It is believed that the color of the label was

in red and that the label was approximately two inches by two

inches.

Q Okay. And did you review Exhibit 520, which has also been

admitted in this case, which is a copy of the caution label,

Dr. Rock?

A I did, yes.

Q And did you rely upon this document for purposes of

formulating your opinions in this case?

A Well, I recognized that this was a warning label that they

used. I don't know that it affects my opinions that there

was no asbestos in the steel mill in the places where

Mr. Turner worked that came from the ON Marine or Ferro

Engineering Ferroboard.

Q Dr. Rock, are you familiar with the 1972 OSHA standards

with respect to asbestos?

A I'm familiar with them. There were many pages there.

Q And specifically are you familiar with those portions that

deal with caution labels?

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160

A Yes.

Q This exhibit is No. 39, it has been previously admitted.

Is this, to the best of your understanding, a copy of the

1972 OSHA standards with respect to caution labels, sir?

A It looks like it.

Q And the highlighted portion, is this what OSHA stated that

a caution label should state?

A It states right there, "The label shall state," then the

highlighted portion, there are the same words that we read

out of a previous exhibit.

Q And Ms. Raterman testified that this caution label

conformed with the 1972 OSHA standards. Do you agree with

Ms. Raterman's opinions on this point?

A I do.

Q Do you have opinions about the sufficiency of this caution

label?

A It was required by OSHA. And at the time when we were

using it in the Air Force, I thought it was sufficient.

Q And what opportunity or what experience did you have when

you were in the Air Force to cause you to come to that

opinion, sir?

A Occasionally a worker who would see one of the caution

labels -- and asbestos was not the only material that earned

a caution label -- would ask in the industrial hygiene

program for more information. And we could give it to them.

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161

Before we had the caution labels that very seldom happened.

Q But it's your opinion, based on your professional

experience, and your experience as a certified industrial

hygienist, that this is in conformance with the OSHA

standards and is sufficient? Do I understand that correctly?

A Yes.

Q I'd like to speak briefly about Bethlehem Steel. From an

industrial-hygiene perspective, what responsibilities did

Bethlehem Steel have to protect its employees in the 1973 to

1976 timeframe?

A Well, as an employer they were responsible for providing a

safe and healthful workplace under the OSHA act.

Q Now, Ms. Raterman testified that Bethlehem Steel was not

complying with OSHA regulations intended to protect employees

during this relevant timeframe. Do you agree with her

analysis, sir?

A Well, she was a compliance officer. I was not. So I'm

not sure the basis for that opinion that she expressed.

Q What is the basis of your opinion, sir?

MR. HART: The opinion that he doesn't know the basis

of her opinion? That's all I heard.

THE COURT: I think you should rephrase the question.

MS. GANT: I'd be happy to.

Q Dr. Rock, do you have an opinion as to whether or not

Bethlehem Steel was in compliance with OSHA regulations

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162

pertaining to the protection of its employees in the 1973 to

'76 timeframe?

A I would say that they were working at it. I don't know

that any large corporation with as many manufacturing sites

as Bethlehem Steel had in those days, was ever fully in

compliance. So it would be hard to say that they were fully

in compliance, particularly when I didn't visit their plants

in those days.

Q Okay. And have you seen testimony from Mr. Turner or

other coworkers that informs that analysis, sir?

A Well, they did mention that they did not always have

respirators. So it sounds like the respiratory protection

program, at least in the minds of the people working there,

was not what they would have desired. And as I've already

expressed, if there's dust around I would prefer to have

respirators. I'd actually prefer to have local exhaust

ventilation that captures the dust before it gets to the work

zone.

Q And speaking of dust, did you see any reference that

informed your opinion about whether or not Bethlehem Steel

was a dusty place during this timeframe?

A There was some testimony, but since I have visited steel

mills when I was in junior high or early in high school, I

already knew they were dusty without having to see that

testimony.

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Q I see. And do you have an understanding that Bethlehem

Steel, the Seattle mill specifically, was dusty, sir?

A I don't have specific information about the Seattle mill.

I'm sorry.

THE COURT: Are you just about done?

MS. GANT: I have two questions, Your Honor.

THE COURT: We'll count them.

Q Dr. Rock, have we agreed to compensate you for your time

today?

A We have.

Q And we paid for your flight from Texas and covered a hotel

room and things of that nature?

A You've promised to reimburse, yes.

MS. GANT: Thank you. That's all the questions I

have at this time.

THE COURT: We'll take our afternoon recess and be in

recess for approximately 15 minutes.



THE COURT: As I understand it, Lone Star is not

going to cross the witness or ask any questions?

MR. AMEELE: That's correct.

THE COURT: I don't know if it would be cross, but go

ahead, counsel.

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164

CROSS EXAMINATION

BY MR. HART:

Q Good afternoon, sir.

A Good afternoon.

Q Dr. Rock, I'm Tom Hart, I represent the Jim Turner family.

You don't know me, do you?

A We have not met, that I recall.

Q And you don't know Jim Turner either, do you, sir?

A I have not met him, that's correct.

Q And you've not spoken to him on the telephone, have you,

sir?

A I have not.

Q You've not had an opportunity to speak with any of his

coworkers, is that correct, sir?

A I have not.

Q You've not had an opportunity or not taken an opportunity

to go out to what was formerly the Bethlehem Steel mill, and

visit it, have you, sir?

A I have not visited the former Bethlehem Steel mill

correct.

Q In fact, you've never visited any steel mill since your

junior high school days; is that correct?

A That's correct.

Q And so the jury understands your background a little bit,

you're testifying on behalf of -- you were retained in this

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165

case to testify about Mr. Turner's exposure through his

father and the exposures at Bethlehem Steel and the Navy

exposures; is that correct?

A To look at the risk factors in the evidence for

mesothelioma. So, yes.

Q Okay. And just to deal with this quickly, whatever

exposure he had from joint cements, in your opinion, did not

cause his mesothelioma; is that correct?

A That's correct. There is no epidemiology showing that

career drywall finishers are at risk of mesothelioma and a

short-term user is at lower risk.

Q And you don't think that any exposures he had through his

father's clothing when the father took it home played any

role in his development of mesothelioma; is that correct,

sir?

A That's correct.

Q So if Mr. Turner developed mesothelioma, in your opinion

it occurred sometime from when Mr. Turner moved out of the

home but before he worked with joint cements, because that

was the last time he was potentially exposed to asbestos;

correct?

A That's what the record shows. And my opinion is if it's

asbestos-related mesothelioma then, yes, it would have been

after he left home. And the Navy is the most likely place.

Q So between 1969 when he left home and 1976 when he went to

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166

work doing joint-cement work is the time that the asbestos

exposure occurred that caused him to develop mesothelioma;

correct?

A Well, I don't have a medical causation opinion.

Q You're right. Let's back up. You're not a medical

doctor?

A You are correct.

Q You're a Ph.D. doctor?

A That's correct.

Q Nothing wrong with that. We don't hold that against you.

Okay. We've had other Ph.Ds come in here. But you're right,

you can't talk about what caused his cancer; you can only

talk about what exposures placed him at risk for the cancer;

is that correct?

A That's correct.

Q And it's your opinion that the exposure that placed him at

risk of mesothelioma occurred sometime between 1969 and 1976;

is that correct?

A If it's an asbestos-related mesothelioma, yes.

Q And you're not a doctor so you can't say it's not an

asbestos-related mesothelioma, if all the other doctors who

have examined him say so, correct?

A I will not have an opinion on clinical findings, you are

correct.

Q So if doctors have come before and raised their hand

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167

before the jury and told them this is an asbestos-related

mesothelioma, you're not here to contradict that, correct,

sir?

A That's correct.

Q So between those seven-year time periods Jim Turner was

exposed to asbestos that caused his mesothelioma, correct?

A May have increased his risk of mesothelioma.

Q Increased his risk. Thank you.

Now, you're not a toxicologist, correct, sir?

A I am not a certified toxicologist, although I taught it to

students at A & M.

Q You're not an epidemiologist?

A I am not an epidemiologist, although I coordinated epi

studies with the Air Force epi lab.

Q You testified you never took an epidemiological course?

A That's correct.

Q You never studied epidemiology in a classroom setting; is

that fair?

A That's correct.

Q And you also testified that you have never done an

epidemiological study?

A I've not done one myself, that is correct.

Q And let's talk about asbestos. You talked about some

publications. Have you ever written any of your articles

dealing with asbestos?

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168

A Articles that I've written affect how you calculate risk

for any chemical. But I have not written an article specific

to asbestos.

Q In fact, if we went and looked at all of your articles,

had them scanned and OCRd and did a word search, in all the

articles you've written in peer-reviewed journals the word

asbestos doesn't even occur, is that fair?

A I believe that's fair, yes.

Q Now, somehow in -- when was it -- 2004, then a Dr. Dyson

told you about the opportunity to testify for defendants in

asbestos litigation; isn't that correct?

MS. GANT: Object to form. Argumentative.


A Dr. Dyson did have a conversation with me about bringing

science to the courtroom, an expert witness, and what it

means, yes.

Q Let's talk about what science Dr. Dyson brought to the

courtroom. You knew he testified for defendants in asbestos

lawsuits, companies who made asbestos products on a regular

basis, did you not, sir?

A He explained that to me, yes.

Q He told you there's an opportunity for you, if you wanted

to, to come testify for the companies that were being sued

for asbestos, is that correct, sir?

A What he said is he thought I would be a credible witness.

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169

He didn't say that it would be for companies or it would be

for plaintiffs.

Q But the contacts he gave you were for the companies,

correct, sir, the companies' lawyers?

A The contacts he gave me, yes, sir.

Q You followed up on those contacts, did you not?

A I did.

Q And you sought out the company lawyers and offered your

services available?

A I never sought a lawyer, no, sir.

Q Well, you contacted whoever Dr. Dyson told you?

A I did not.

Q You just told the jury you contacted them.

A I didn't say that, I think you said it. What happened was

Dr. Dyson referred some of his clients to us.

Q Okay. Dr. Dyson said: Would it be all right if I had

them contact you, and you said sure?

A Yes.

Q Okay.

A Now, let's clear the record --

THE COURT: You've answered the question.

Q And so Dr. Dyson, being your intermediary, told whoever,

and somebody called you and said, would you like to testify

for the defendants, correct?

A That's correct.

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170

Q Now, you gave us a list in this case for the last four

years, and since the beginning of 2009 you've testified 110

times, all of those at the request of a company being sued in

an asbestos case; is that correct, sir?

A That's not correct.

Q All the asbestos testimony you've done have been for

defendants who have been sued by someone claiming an asbestos

disease, is that correct, sir?

A And they've all been in low-dose cases, yes, sir.

Q And we're going to get to that in a minute.

Before 2009 and going back to 2004 when Dr. Dyson made

the contacts for you, you also testified over a hundred times

during that time period, is that correct, sir?

A I believe that to be correct.

Q And, in fact, all of the testimony you gave on asbestos

cases was always for one company or another that had been

sued in a case like this; correct, sir, in the asbestos

litigation?

A Well, there was one case where a company was sued by

another company. So there wasn't an individual plaintiff.

But other than that, yes.

Q Okay. But you always testified for the defendant even in

the company-versus-company suit?

A No, that was -- I was on the plaintiff's side on that one.

Q So one asbestos company was suing another and you went

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171

with the plaintiff on that one?

A They contacted first. Yes, sir.

Q In all the asbestos cases you've always been on the side

of the asbestos company one way or another, correct?

A If by "asbestos company" you include users of asbestos,

like joint-compound companies.

Q Companies that sold products containing asbestos.

A Right.

Q Okay. And you're always asked, as you were in this case,

to evaluate your client's exposure and offer your opinions

concerning whether that exposure caused the -- or placed the

plaintiff at an increased risk of cancer; is that correct,

sir?

A Or asbestosis.

Q The majority of your cases, and there have been over 200

of them, have been victims of mesothelioma; is that fair?

A There's a growing proportion of lung cancer. But the

majority, yes, mesothelioma when asbestos is the stressor of

interest.

Q And as a scientist you know that mesothelioma is uniformly

fatal, correct?

A Yes.

Q And in those cases you know you're testifying in a case

where a person is dying or he's already passed away and his

family has brought the suit; correct, sir?

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172

A Well, somebody has been diagnosed with mesothelioma. I

don't know that the families always bring the suit, but other

than that I have no objection.

Q Either the person is dying or already passed away, is that

fair?

A Yes.

Q Now, in all of those cases when it's brought by either the

individual themselves or his representative after he passes

away, your testimony in every single case has been that the

asbestos company that hired you did not place that person at

an increased risk of mesothelioma; isn't that correct, sir?

A Actually I don't think I've ever testified to that. I've

always testified that, using Peto's model, you can estimate

the amount of increase, and that in many, many cases the

amount of increase is lower than the increase just

experienced by citizens of the urban areas of the United

States in the middle 20th century, an increase that was

reported repeatedly in the epidemiological literature to be

not potent for mesothelioma.

So, I have said this is the calculated increase, this is

what the model says at very low doses. But it's not

significant.

Q Well, we're going to get to your model in a minute. That

model, the calculation you use is one that you developed,

correct?

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A No, it was developed by Julian Peto.

Q But the formula you used in this case you showed us was a

mathematical model you adapted, correct, sir?

A I mechanized it.

Q Mechanized it. We'll use your word, I don't mind. It

means you changed it?

A Absolutely not.

Q You adapted it for this circumstance?

A That means I shortened the time necessary to make the

calculation. I put it on the computer along with almost

everything else today.

Q And your method of mechanizing this formula, you've never

published that in a peer-reviewed journal, have you, sir?

A It's not been published in a peer-reviewed journal, you're

right, by me. It's been published by the people that

developed the formula.

Q Not the mechanized version?

A I don't see a difference between the mechanized version

and the algebraic version.

Q But regardless, your formula that you apply in this case

has, in every instance you've been hired by an asbestos

company against somebody with mesothelioma, you've always

concluded, using your formula, that the company that hired

you did not place the person at an increased risk of cancer;

is that fair, sir?

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A That's not fair.

Q Why is that not fair?

A I concluded in most cases it did not cause a significant

increase.

Q Okay.

A But occasionally, as in the Reeve case recently in this

Seattle area, the person that hired me, the company that

hired me, did pose a significant risk of mesothelioma. And I

was deposed in that case.

Q Okay. One time, the model has come out showing an

increased risk for the plaintiff?

A There were other times when I was not engaged as a

testifying expert, and it doesn't show therefore on my list

of testimony.

Q Well, all I know is what you gave us and this is where

you've testified, correct?

A Right.

Q Every time you testified, except that one time?

A Right.

Q I didn't know about it, the other 200 times you've always

testified that the companies did not place the plaintiff at

an increased risk; is that correct?

A That's right. I've been given low-dose cases to look at.

I suspect that they're prescreened.

Q And if your model ever is different than that, you usually

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don't get called into court?

A Well, that one time I did not get called into court;

that's correct.

Q Now, you've never tested -- you're an industrial

hygienist, correct?

A That's correct.

Q Industrial hygienists can go out and do tests on the

worksite, correct?

A Yes.

Q They can measure potential hazards like the release of

asbestos fibers, correct?

A Yes.

Q You've never tested an asbestos fiber for fiber release;

isn't that correct, sir?

A In any of the cases I've been retained, that is correct.

Q You began testifying so much and having so much work

coming through this venture that Dr. Dyson turned you on to,

that you formed a corporation. You mentioned a little

company called TUPE?

A Yes.

Q It's really a tiny corporation, it's you and your wife,

right?

A That's correct.

Q Your wife is the president?

A That's correct.

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Q And is she an industrial hygienist?

A No.

Q Is she a scientist?

A She's got a bachelor's degree in pre-medicine so she's

scientifically trained.

Q Does she do any industrial hygiene work?

A No.

Q So this is just a private company for you and your wife?

A Yes.

Q Half of the money or more that your company earns comes

from testifying on behalf of companies like you've done

today; isn't that correct?

A Yes. That's correct.

Q And in the last year tell the jury how much you've earned,

or the last two years, or whatever amount you're comfortable

with.

A I got a salary of $115,000 last year and I think it was

$110,000 the year before.

Q And how much does TUPE bill on your behalf?

A That, I don't know.

Q Considerably more?

A Yes. My wife gets a salary, and there's a retirement

account too.

Q Your wife's salary comes from the income you generate; is

that fair?

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177

A Well, somebody has to do the business of any company.

Q Yes, sir, I'm not criticizing the fact that she works with

you. I'm just saying the income that your company makes

comes from your testifying in cases like this?

A Yeah. Our product is consulting, and most of that is

testifying; that's correct.

Q And all of the consulting is done by you?

A Yes.

Q Your wife doesn't go out and do consulting work?

A No.

Q She's doing the books back home?

A That's correct.

Q Apparently she doesn't share with you the income the

company is making, what the books show?

A She does not. That's between her and the bookkeeping

service.

Q Okay. Okay. Dr. Castleman testified this morning and you

sat in during his testimony?

A I did, yes.

Q Is that the first time you've seen his testimony?

A The first time I've seen Dr. Castleman in person. Yes,

sir.

Q You saw him describe the textbook, he's published five

editions of it?

A Yes.

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Q You went out and bought a copy of that?

A I think I have the fourth edition.

Q So the fourth edition came out ten years ago, you've had

it that long?

A No. I bought it used off Ebay.

Q That's fine. But you bought that not long after you got

involved in testifying in these asbestos cases; is that fair?

A Probably '08 or '09.

Q Now, going back to the steel mill, not only have you not

visited the steel mill in a professional capacity, you've

never done any studies of hot tops before this case, have

you?

A You are correct.

Q And you told us when we took your deposition, that you

weren't even aware of any epidemiological study addressing

steel mill workers; isn't that correct?

A That is correct. No large epi study as of Monday of this

week could I find in the National Library of Medicine.

Q The NIOSH study you mentioned to the jury, you didn't

discuss that with us in the deposition, did you, sir?

A That's not a mesothelioma study. I understood the

question to be about mesothelioma epidemiology.

Q But that is an epidemiological study?

A Yes, it is.

Q And in this case you indicated when we asked you -- we

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179

asked you about amosite, did we not?

A I believe you did, yes.

Q And we asked you about the hot top material Ferro made.

And at the time of your deposition -- and your deposition was

in September, correct?

A As I recall, yes.

Q You gave us a list of the things the lawyers sent you that

you reviewed?

A Yes.

Q And at that deposition when we asked you questions: And

here's the things you reviewed, the document list --

MS. GANT: Excuse me, are you going to use this for

demonstrative purposes, Mr. Hart?

MR. HART: Yes.

Q This is what you gave us, right?

A Yes. It looks like it.

Q And you got the plaintiff's answers to interrogatories,

plaintiff's amended answers to defense style interrogatories,

depositions. Do you see that?

A I do.

Q And you didn't know, after reviewing all of that material,

that Ferroboard contained asbestos, did you, sir?

A I didn't know the formulation; that's correct.

Q So the testimony you gave today about the formulas and

about the fact it contained asbestos is something you learned

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180

after we took the deposition of you, is that fair?

A That's fair.

Q And you didn't bother to tell us that you were going to do

that additional research, at the time of your deposition you

didn't tell us that, did you?

A At the time of my deposition I had no plans to do

additional work on this case.

Q Okay. You were asked about Exhibit 3038. That was a

letter to Bethlehem Steel. And you were asked what you

understood about Bethlehem Steel and what you understood

about Ferro. Do you remember those questions about that

exhibit?

A The questions this afternoon?

Q Yes, sir.

A Yes, I do.

Q And that document, you said, came from the supplemental

answers to interrogatories filed by Ferro. Do you recall

that, sir?

A I can't keep track of all the documents in this case, but

I thought that's where it came from.

Q Okay. And you did not have that document at your

deposition, did you, sir?

A I did not, you're correct.

Q It's not on your disclosure list you gave us, correct,

sir?

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181

A Not as a separate itemized document, no, sir.

Q You hadn't even looked at it at the time of the

deposition, isn't that true, sir?

A I had looked at it but I didn't recall it at the time of

the deposition.

Q Would it surprise you to learn, sir, that according to the

official court file in this United States District Court that

the supplemental answers to interrogatories were not filed in

court until October 15th, some month after your deposition?

A Well, then that's why I didn't have knowledge of it at the

depo.

Q So you did not have it and you had not reviewed it at the

time of the deposition, correct?

A I had no recollection of it at the time of the deposition,

that's correct.

Q And had you looked at it, whether you recalled it or not

at that time, just tell me yes or no.

A I don't know.

Q Okay.

A But if the court records show that it wasn't released

until the middle of October, then the answer is no, I had

not.

Q Okay. So let's find out what else you've done since your

deposition. In fact, when did you first look at that

document, was it since you got here?

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A No, it was -- I remember looking at it last week.

Q Last week. Okay. Did you get a lot of documents last

week?

A I got a lot of documents late in October and a lot more

last week and even into Wednesday of this week.

Q Okay. So let's talk about that. So Friday the day after

Thanksgiving you started reviewing new documents; is that

correct?

A New to me, yes.

Q Yes, sir. Yes, sir. And those included -- we talked

about some, and what else did they include?

A I can't tell you which documents are in which pile as I

sit here.

Q Okay. How big of a pile was it?

A It's electronic. I don't know, 35 megabytes about.

Q 35 megabytes?

A In each of those two document dumps. But they didn't come

all at once, they came two-sies and three-sies.

Q You got one document dump on Friday and one Wednesday of

this week, is that fair?

A No. It came last Friday through Wednesday, two or three

documents at a time.

Q Is the total 35 megabytes?

A No. I'd say it's about 35 megabytes, give or take, in

October and in November.

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183

Q Well, how much did you get this month?

A In December?

Q Well, since last Friday.

A Oh, I don't know, 3 or 4 megabytes maybe.

Q And those documents all allowed you to testify about your

opinions, or at least they contributed to your opinions on

what would happen to amosite in the Ferroboard liner; is that

correct?

A Virtually none of those documents -- well, Dr. Mishra's

report, yes.

Q All right. And so any opinions you have about Ferroboard

liner and the heat of a Ferroboard liner is something you

learned just recently; is that correct?

A The heat of the Ferroboard liner? Yes. Dr. Mishra's

report and his study is very thorough on that question.

MR. HART: Your Honor, at this time we would move to

strike all previous testimony by the doctor concerning

temperatures reached by Ferroboard liner as being incurred

after the fact.

MS. GANT: We renew our statement that we disclosed

the Mishra report. And consistent with the timing

requirements of this court, that Dr. Rock was deposed prior

to that time. And we have certainly put all parties on

notice of the fact that Dr. Rock was relying upon that

information when forming the basis of his opinion.

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184

THE COURT: I'm going to defer ruling. Go ahead and

finish your cross.

Q Let's find out what you knew before you got the document

dump. What you thought you knew is that the steel at the

Bethlehem Steel shipyard was heated as high as 7,000 degrees?

A Yes.

Q And you testified to that in your deposition. You thought

steel got to 7,000 degrees at Bethlehem Steel?

A During scarfing, yes.

Q And that's not true, is it, from what you've learned. You

are wrong?

A No. That's the flame temperature of the impinging flame

from the scarfing torch. I don't believe I was wrong.

Q The steel doesn't reach that temperature, does it, sir?

A The surface of the steel does, the part that touches the

flame.

Q We'll ask Dr. Mishra and see what he says about that.

A All right.

Q At the time we took your deposition you could not recall a

single study of amosite that described what happens to

amosite when it's heated. Isn't that correct, sir?

A I believe what I told you is I couldn't recall who the

authors or title was, yes, that's correct.

Q But you had prepared to testify about the Ferroboard

product that contained amosite, didn't you? Oh, you didn't

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185

know it had amosite, did you?

MS. GANT: Objection, argumentative.

A I didn't prepare to testify on the physical chemistry of

thermolysis of amosite and chrysotile.

Q You mean you didn't prepare for the depositions giving the

opinions that you're giving to the jury today?

A I didn't understand that was the nature of the deposition

at the time.

Q So when you were hired, you thought you were hired to do

something completely different than what you told the jury

today; is that fair?

A I told the jury today I didn't see a risk of mesothelioma

from a Ferroboard product that has the consistency of a brick

and gets burned up in its first use. The details of the

facts about how amosite and chrysotile get burned up, I

didn't expect to be asked.

Q Okay. But the only knowledge you had about amosite was

based upon studies of brake lining dust?

A No.

Q That's the only article you told us in the deposition was

Dr. Lynch's article?

A That's the only one I could recall at the time.

Q That was a study of chrysotile?

A It was, indeed.

Q And Dr. Lynch's article was 1968, correct?

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186

A It is.

Q That wasn't a health assessment in a workplace study, that

was a pollution study, correct?

A Not as I understood it. I mean, he simulated braking, he

collected the dust and looked at the content of the dust.

I'd characterize it as a bulk analysis of brake dust.

Q Wasn't he looking at determining whether or not asbestos

was a pollution hazard? You don't recall that as being the

subject of the study?

A The comment was made that it didn't look like it was an

air pollution hazard near roadways.

Q Okay. So they're looking at a pollution hazard, they

weren't looking at whether individuals working were at risk

of developing disease in a workplace setting, correct?

A Dr. Lynch is a certified industrial hygienist, was also a

past president of AIHA, as I am. He would not have

overlooked an occupational illness if evidence were present.

Q I'm sure he wouldn't. But the purpose of that study, like

I tried to ask you, sir, was not to study a workplace setting

but to study pollution from brake linings that are out on the

street?

A You're making a distinction that I don't make. And I

didn't understand in the '70s, when the Air Force hired me

and converted me to an industrial hygienist, our role was to

protect the workers, the workforce from the stressors of the

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187

workplace, and make sure that the stressors of the workplace

didn't get dumped into the community to cause community

public health problems. We didn't distinguish where the shop

wall is. And in 1968 I don't believe Dr. Lynch did either.

Q Okay. And in the conclusion section Dr. Lynch stated --

and you've read this article, right --

A Yes, I have.

Q His final sentence, "Many sources of respirable fibers not

associated with asbestos products have been identified, and

free fibers from brake lining wear seem to be an

inconsequential health factor in urban air pollution."

A I don't disagree that he wrote that.

Q And then the table just above that he listed the test

results he performed on the brake dust by electron

micrograph. Do you recall that table?

A Yes.

Q And sample No. 4, automobile drum brakes test method.

"Friction between 700 and 900 degrees Fahrenheit. There were

numerous free fibers and approximately 10 percent free

asbestos fiber," he reported in sample No. 4, do you recall

that?

A In sample No. 4, yes.

Q And in sample No. 9. Automobile drum brakes. The test

method was friction, the conditions of the test were 600 to

700 degrees Fahrenheit. Numerous pre-fibers were determined,

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and approximately 15 percent pre-asbestos fibers were

determined; is that correct?

A Yes.

Q And he found some others with lower amounts and some with

no asbestos fibers, correct?

A Correct.

Q That's the basis you have to discuss the amosite

degradation in this case. That was the only paper you could

recall when we took your deposition. Correct, sir?

A It's the only paper I could recall. But I did recall that

amosite decomposes. And I remember from the studies that the

Air Force had done when I was a commander of the lab, that it

decomposed. There was no peer-reviewed publication out of

that that I could cite.

Q Right. Now, Dr. Longo said he did an EPA -- he was hired

by the EPA to study this idea of melting asbestos to turn it

into that glass rock you talked about?

A Yes.

Q And he said the EPA wouldn't accept that method using a

furnace.

A Well, in 1992 the EPA published a tech report that shows

how that method was very functional but was not economically

-- well, it wasn't affordable.

Q Not affordable. And the EPA never has accepted melting

asbestos as a method to use on a job site to get rid of the

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189

toxicity of asbestos, correct? The EPA has never accepted

that method?

A I'm having trouble with the hypothetical in that question.

What I imagine is a job site with asbestos fibers in the air.

And if I'm going to provide protection from the asbestos

fibers in the air, I have to heat it up to 1,100

centigrade --

Q No, sir, that's not what I'm asking you. The EPA never

has approved a method of taking asbestos waste and melting it

as a method of removing asbestos from a job site. It always

has to go to a special landfill designated for products like

asbestos; isn't that correct?

A That's the policy.

Q Now, you talked about toxicity and whether or not the

exposures were toxic or potentially toxic. Let me ask you

about this. It's your opinion that when Ferro put amosite in

their product, they were putting a product that, in your

opinion, is between 100 to a thousand times more potent in

causing mesothelioma than the chrysotile product; is that

correct?

A That's my scientific opinion today. That was not the

opinion in '69 when they developed the amosite formulation.

Q We're not talking '69, we're talking today, Dr. Rock, your

opinion.

A Today is not when these exposures occurred. And I just

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190

said my opinion today.

Q Please stick with my question, we'll try to get you out of

here by the evening. I know you have a trip out of the

country you're trying to take next week. We're trying to

accommodate you.

A Thank you.

Q So, it's your opinion that when evaluating a person's risk

-- and I've got one of these papers for all the witnesses,

I'm going to put your name down here -- that for the potency

of asbestos for mesothelioma, and for the purpose of my

question assume that we're talking about an equal dose for

each fiber, okay?

A Then it will have to be fibers of the same dimension as

well.

Q That's perfectly acceptable.

A Okay.

Q For chrysotile, if we give chrysotile a risk factor of

one, it's your opinion that the amosite fibers would have a

risk factor between 700 to 1,000 times, correct?

A That's the number for crocidolite. For amosite it's more

like two to 500 times.

Q Okay. In light of your testimony, when you're talking

about insulation exposures or shipyard exposures you use the

generic term amphibole, do you not?

A Berman and Crump --

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191

Q I'm asking you, if you use that term.

A Based on Berman and Crump's 2008 --

Q I didn't ask for your foundation. I'm asking you a simple

question to get you out of here by 4 o'clock.

A The simple answer is, if I'm dealing with amosite it's

usually not above 200 as a factor.

Q We'll cross this out. So it's 200 times more potent?

A Up to, yes.

Q And you indicated you reviewed the patent that -- which is

Exhibit 502 that's in evidence in this case?

A Yes. I haven't memorized it, but I did look at it.

Q We'll help you with that. We won't ask you to quote it.

The patent by 19 -- filed in 1967, correct? And then it was

-- we've got some 1969 here. So looks like they worked on it

for a couple over years, is that fair?

A That's normal for a patent, yes.

Q And they're already in the hot top business by this time.

They already had asbestos-containing hot tops. They were

coming out with a new and improved one, is that fair?

A That's often what a patent is, yes.

Q And their new and improved patent talked about using the

asbestos form -- and I'll zoom it in so we can all see it.

Can you read that, sir?

A I can, yes.

Q Okay. The asbestos form material utilized -- so they're

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192

talking about what they're proposing in the patent in this;

is that correct?

A Yes.

Q Okay. Has a combined water content of less than

6 percent. Crocidolite asbestos and anthrophyllite

asbestos -- that's a different kind, right?

A Yes, it is.

Q Tremolite asbestos, that's another amphibole, correct?

A Yes.

Q Or amosite asbestos, may be used. All of which have a

combined water content of less than 6 percent.

Now, when we're talking about what happens to asbestos

when you heat it is the dehydroxylation. That's the term, is

that correct?

A That's a chemical term, yes.

Q What that means is the water molecules are removed from

the asbestos by the heat?

A Right.

Q So the more water in the product, in the asbestos, the

more it's going to change, the more that's going to be taken

out?

A That makes sense, yes.

Q So they were looking for a product that had low water

content so it wouldn't be affected by heat as much; is that

fair?

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A They're looking for a low water content, yes.

Q And these materials also have a low loss of weight on

ignition; do you see that?

A They do.

Q On the above-noted materials, amosite asbestos is

preferably used due to its fiber strength and availability.

Do you see that?

A I do.

Q Amosite asbestos contains a small amount of water,

approximately under 6 percent by weight, and has an extremely

low loss of weight on ignition as compared with other

asbestos having a high-water content and a higher loss on

ignition. Is that correct?

A Yes.

Q Interpreting that it means it's affected by heat less; is

that fair?

A Well, it means it releases less water.

Q Okay.

A And the water would cool the iron they're trying to keep

liquid. So it would like less of that.

Q But actually, if you read the patent they're not talking

about that at all, they're talking about the water boiling

and becoming a gas and disrupting the steel-making process,

the gases there. And this would produce less gas, that's

what's stated actually as well in the patent; isn't that

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right sir?

A You boil water and heat it, you take heat from some

source, and the source is the steel they're trying to keep

liquid, yes. And all of that happens too.

Q The purpose they were talking about, they didn't want the

boiling water gases getting in the steel?

A I understand. I understand what they put in the patent,

and I'm giving you another engineering insight.

Q Now, the Ferroboard was a lining?

A Yes.

Q You said it a was a single-use lining?

A Yes.

Q So it was always taken off after every ingot was made?

A There was no board to take off, according to the testimony

that I reviewed. It was ash at the end of the cycle.

Q And you understand it became completely ash?

A Yes.

Q You didn't see the testimony that Mr. Turner described

that somebody over in the melt shop had to take the boards

off --

A I thought --

Q -- before it left the melt shop. Then when it reached him

he thought some of the particulate matter from those boards

remained. Do you recall reading that?

A I recall that he said he thought some of the particulate

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195

matter from the boards remained.

Q Okay.

A But he never worked in the melt shop. So he didn't have

hands-on experience with what was going on over there.

Q We all agree to that, sir. We're not talking about that.

We're talking about his testimony. Do you recall he said he

would go over to the melt shop from time to time?

A To that vicinity, yes.

Q He'd actually go in the melt shop and look around, and he

was curious. Do you recall that testimony?

A I do now, yes.

Q On those occasions he would observe the process of the

Ferroboard liner being put on and taken off. And he

described it to the attorneys at his deposition; do you

recall that, sir?

A Yes.

Q And he described that after the ingot came out of the

mill, the furnace, it had to be -- the liners had to be taken

off, but he did not do that, other people did it?

MS. GANT: Objection. This misstates Mr. Turner's

testimony.

THE COURT: If you want to address an objection,

address it to me.

MS. GANT: Objection. To the extent this

mischaracterizes Mr. Turner's testimony, Your Honor.

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196

THE COURT: That will be for the jury. I'll overrule

the objection.

MR. HART: And the witness's answer was yes, he

agrees with me.

Q So, some liner was removed according to Mr. Turner. And

you know that the liner itself is for insulation purposes,

correct?

A That is correct.

Q To keep heat in?

A Yes. Dr. Longo and I agree.

Q And the liner portion of the liner closer to the steel

would get hotter than the portion of the liner away from the

steel, correct?

A I agree with that as well.

Q And the temperature of the liner away from the steel, for

your theory to be correct, would have to get over

900 degrees, correct?

A On the Celsius scale, yes. I understand that it did.

Q You understand that it did?

A Yes.

Q If the jury learns that the temperature on the outside of

the lining did not reach 900 degrees, only reached

750 degrees, then your theory would not be applicable,

correct?

A It would not be totally detoxified. But it would be much

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197

less toxic than if it had never been heated.

Q And you know, from your industrial hygiene experience, or

whatever you've done since our deposition, that at

750 degrees if you look at amosite by x-ray diffraction,

49 percent of it remains. Isn't that correct, sir?

THE WITNESS: Your Honor, that's a paper I was asked

not to comment on earlier.

THE COURT: He asked a question, I guess he wants an

answer.

Q You know that fact is true, do you not, sir?

A The paper --

Q First of all, answer my question. I didn't ask about a

paper. Just in general. If you heat amosite to 750 degrees,

50 percent of it, almost, remains, when you look at it by

x-ray diffraction analysis?

MS. GANT: Objection. This is incomplete. There's

no information about the timing of how long it was heated to

750 degrees Celsius.

THE COURT: This is proper cross. You may answer.

Q Is what I stated correct?

A X-ray diffraction --

Q Is what I stated correct, first of all?

A No.

Q X-ray diffraction analysis will show that what is reported

as amosite represents 50 percent of the material remaining;

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198

is that correct?

A X-ray diffraction will show the energy scattered at an

angle that is characteristic of amosite is reduced by half.

Q Reduced by half?

A That can't be interpreted as either fiber or as the amount

of mineral remaining.

Q Well, when you got that document dump, did they send you a

transcript of Dr. Longo's testimony before this jury in this

case?

A His testimony before the jury?

Q Yes, sir.

A I believe I got that last night.

Q Okay. Okay. So then that's something else you got. So

then you know that Dr. Longo said that 50 percent or 49

percent of the material was amosite that remained. That was

his opinion.

A That was his opinion. That's correct.

Q He's a Ph.D., like you, but he's in materials science, he

studies materials and that's his speciality, correct?

A That's correct.

Q You know that he has had a practice and been retained by

the EPA and OSHA and others to analyze and study asbestos

particularly, correct?

A He has, indeed.

Q Okay.

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199

A But he never said that that was amosite fiber. He did say

it was powder x-ray diffraction.

Q Because they ground it up to look at it under there,

that's why it was a powder?

A That's right.

THE COURT: Now you're arguing with the witness.

MR. HART: All right.

THE COURT: Just ask another question.

A And since he wasn't --

THE COURT: Just a moment. There's no question in

front of you.

MR. HART: I wasn't upset, I was just excited, Your

Honor.

Q It's your opinion that the risk of disease is higher with

exposure to amphiboles like amosite than it is with exposures

to chrysotile; correct?

A Given similar fiber dimensions, yes.

Q And if one gram of the Ferroboard liner survived the

process where it was scraped before it was scarfed, would you

agree with Dr. Longo's calculations on how many amosite

fibers that would represent?

A There has to be a hypothetical middle step. The fibers

that survive then have to be aerosolized and made airborne.

Q Right.

A And in another paper that I'm not allowed to talk about --

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200

Q So let's don't go there, I'm just talking about

mathematics.

A It was not possible to make those fibers airborne, so --

Q Well, in fairness to Dr. Longo, he just told me how many

fibers, and then I asked him, if you did get it airborne,

what volume would you need to spread it out to 0.1 fibers per

cc. Did you see that?

A I did. And I did the calculation over and got the same

answer Dr. Longo got.

Q 60 football fields -- actually we did 100 meters by

50 meters and then ten feet high or three meters high; is

that correct?

A Correct. And those are my numbers too.

Q Okay. And you agree with Dr. Longo's mathematics?

A On that question, yes.

Q And if two grams survived it would be double that, and if

three grams survived it would be triple that?

A Yes.

Q You heard the testimony that hundreds of ingots were going

through there a day?

A Yes.

Q Okay. And that if each of them had only a gram of

material surviving then that would be multiplied by hundreds

of times, correct?

A If it were released into the air as toxic amosite, yes.

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201

Q Now, your opinions about his exposures in the Navy, you're

aware that the Navy has tried to study the hazards of

asbestos; is that correct?

A I'm aware of that, yes.

Q And, in fact, you're aware that the Navy actually did

tests, studied the hazards of asbestos in shipyards, correct?

A Yes.

Q So the Navy at least has attempted, has tried to first of

all do research, and second of all do tests for its sailors,

correct?

A Well, shipyard workers and sailors, yes.

Q And when you were in the Air Force, the military did

actually warn military personnel about the hazards of

asbestos, correct?

A The labels were on products we purchased through GSA, yes.

Q So when you bought a product, an asbestos product through

GSA, it came to you with a warning label on it; is that

correct?

A In the '70s and later, yes.

Q Okay. And so the military, the Navy or Air Force,

whatever, researched, tested and actually made sure the

products were labeled when they contained asbestos; is that

fair?

A Like all big organizations there were holes in it. But,

yes, that was the policy, and that was our goal, and we

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202

worked at it.

Q And the government, the Navy, the military, tried to

protect the workers?

A In the '70s, from asbestos, yes.

Q And even earlier when they did the tests -- you're aware

of the tests done in the 1940s concerning --

A The Fleischer Drinker report, 1946.

Q Yes, sir.

A Yes, I'm aware of that.

Q And the conclusions -- and that was a good paper to do, it

was good that they did that research, correct?

A Yes, it was.

Q And they said, the character of asbestos pipe covering

industry on board naval vessels -- and Mr. Turner worked on

board a naval vessel, correct?

A Yes.

Q And they say, the character of the asbestos pipe covering

industry on board naval vessels is such that conclusions

drawn from other asbestos industries such as textiles cannot

be applied. Do you recall that conclusion they made?

A I do.

Q And then their final conclusion is they found three cases

of asbestosis, no cases of cancer, correct?

A That's what I recall, yes.

Q And they said, since each of the three cases of asbestosis

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203

had worked at an asbestos pipe covering in shipyards for more

than 20 years, it may be concluded that such pipe covering is

not a dangerous occupation. Was that their final conclusion?

A I believe that was the conclusion. And it was in the

context of the shipyards during World War II had achieved

five million particles per cubic foot.

Q Okay.

A Which was the recommendation of the 1938 report the jurors

heard about.

Q So they were saying they didn't find any cancers, correct?

A That's correct.

Q And they were saying if you stayed below five million

particles you would be safe?

A Yes.

Q All right.

Now, you estimated that Mr. -- if you had five million

particles of exposure, how would that convert to fibers? How

many fibers?

A It would be about 30 fibers per cc.

Q Okay. Thirty fibers. So they were saying, basically, if

you're below 30 fibers per cc they thought you were going to

be safe. That was the government's believe back then?

A That was deemed to be a tolerable occupational exposure

among generally healthy workers.

Q But your analysis, you don't conclude that Mr. Turner was

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204

exposed to more than 30 fibers per cc when he was in the

Navy, do you?

A No.

Q In fact, you conclude that he was exposed to just a

fraction of a fiber per cc on a time-weighted basis?

A While he's in the sonar room, that's correct.

Q How about if you average over the whole time he was there,

it was a fraction, right?

A I didn't do that. But it's probably -- if I used the

hypothetical that's in one place in the testimony, that for

several months while the ship was being decommissioned he was

below decks, then it's probably on the order of two fibers

per cc.

Q Well --

A If he was only below decks a few days, as is present in

other places in testimony, then it's a fraction of one fiber

per cc.

Q Okay. So the testimony the jury heard yesterday, when he

did the chipping of the paint, he was only down there for a

few days, and other work was already completed, then he would

have an exposure of fractions of a fiber of cc, correct?

A More likely than not, yes.

Q If that was the exposure you don't think that would place

him at an increased risk, do you?

A Because it was amosite in the Navy, and because it's a

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205

confined space, it's not a big steel mill where the winds off

the Sound are blowing through it and blowing the dust away, I

believe his exposure in the Navy was higher than any possible

exposure attributable to Ferro Engineering liner board.

Q You're telling this jury that the couple times he went

down there chipping paint when nobody else was working was

more dangerous to him than working in the Bethlehem Steel

mill?

A With regard to asbestos exposure and particularly the

asbestos that's related to Ferro liner board, yes.

Q And how many hours have you worked on this case to come up

with that opinion?

A I haven't totaled those, so I would estimate that it's

somewhere around 50 to 55.

Q At how much per hour?

A $350, sir.

Q What does that come out to be, $15,000, $20,000?

A Probably.

Q Plus your travel?

A Yes.

Q And when you were hired you knew the two opinions they

wanted from you were no exposure from his dad at the shipyard

and no exposure from Bethlehem Steel; is that correct, sir?

MS. GANT: Objection, Your Honor, that's

argumentative.

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206

THE COURT: Overruled. It's proper cross. He can

answer it.

A Nobody ever put it to me that way. And this is the same

firm that got a report of a significant exposure for one of

their defendants in the Reeve case. They know that they'll

get the numbers that come out of the equation, whether good

or bad.

Q Well, they weren't real happy with the other report you

gave them, were they?

A I'll let you ask them at dinner or something.

Q Okay.

A All I can say is they hired me for this case.

Q And your opinions actually have been excluded by some

judges in the State of Washington as being unreliable; is

that correct, sir?

A Not that I recall.

Q You don't recall that?

A I've never been told that.

Q You've never been told that. Okay.

Let me check my notes, here. So to conclude your

opinion, his work for the few times he went below decks on

the Navy was more dangerous in causing mesothelioma than his

work at the Bethlehem Steel steel mill, correct?

A Let me explain to the jury that he was also below decks to

eat, and he was below decks to sleep, while the ship was on

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207

the firing line. So he was below decks for many months, in

addition to the possible more intense exposure in the

shipyard refit environment.

Q Well, he didn't eat next to somebody working on

insulation, did he? Did he, sir?

A Usually not. But the fibers --

Q He didn't report that. He didn't report that, so let's

not speculate.

A I'm not speculating. Measurements in Navy ships show that

the fibers permeate all compartments in the ships. And in

the peer-reviewed literature you can look at Harry's

(phonetic) of 1971 to see that.

Q You believe asbestos fibers permeate whether it's on a

ship, a building in a school, or anything; is that correct?

A That is correct.

Q If asbestos fibers were being worked on in that corner,

it's your opinion it would permeate back to that corner,

correct?

A Given the eddy-diffusive ability of air circulation in the

room, they would, yes.

Q It's your opinion that the asbestos fibers at Bethlehem

Steel, blown by the wind off the Sound toward Mr. Turner,

would not have permeated toward him?

A That's not quite my opinion. It understates it.

Q Understates it?

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208

A Yes.

Q You don't believe he had any exposure -- in fact, you

testified that he had no exposure to asbestos at Bethlehem

Steel, in your opinion?

A I believe the asbestos in the liner board was encapsulated

until the liner board had been through its one-time use

cycle. And after that it wasn't asbestos.

Q It's your opinion, sir, that Mr. Turner had no exposure to

asbestos at Bethlehem Steel, is that correct, from any

source?

A My opinion is he had no exposure to asbestos associated

with the Ferro Engineering liner board.

Q Did he have any other exposure there?

A I haven't been asked, until this question, about other

sources.

Q Did he have any other exposures?

A There was testimony that he sometimes used asbestos mitts.

Q Mitts?

A Yes. Mittens to protect his hands while scarfing, for

example.

Q Was that dangerous?

A It would have a higher exposure, in my opinion, to

chrysotile fibers the way those mitts were normally

manufactured, than anything attributable to the Ferro liner

board.

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209

Q How about the asbestos cement?

MR. AMEELE: Objection, foundation.


A If he mixed the asbestos cement in a year when it

contained asbestos fibers, in an open bucket or open

wheelbarrow, then he had some exposure to chrysotile fibers.

Q Chrysotile is the same thing those mitts are made out of,

right?

A Normally those mitts are chrysotile, that's correct.

Q And you believe that the -- if the amosite in the

Ferroboard did, in fact, become airborne in the breathing

zone of Mr. Turner, that would place him at a 200 times

increased risk over a similar exposure to chrysotile?

A If the concentrations were the same, yes.

MR. HART: Thank you, sir. That's all the questions

I have.

THE COURT: Redirect.

MS. GANT: Briefly, Your Honor.

REDIRECT EXAMINATION

BY MS. GANT:

Q Dr. Rock, Mr. Hart asked about any prior study of yours of

hot top materials. And I believe you testified that you had

not previously studied hot tops. Did I understand correctly?

A Yes.

Q Do the same basic principles of industrial hygiene apply

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210

to your analysis of hot tops as opposed to your analysis of

other potential occupational exposures?

A Yes.

Q Mr. Hart also asked you some questions about the potency

of amosite versus chrysotile fibers. Do you recall that?

A Potency for mesothelioma, yes.

Q And his questions were focused upon the knowledge in the

scientific community today. And I believe you started to

testify about the knowledge in the scientific community in

1969. What was the knowledge in the scientific community or

the general consensus in the scientific community in 1969

about the potency of those particular fibers?

A In 1972 Dr. Selikoff wrote an article in which he noted

that amosite was being used as a substitute for the other

kinds of asbestos, because it was not known to be a

carcinogen. And this trend started in Great Brittain.

Q Mr. Hart also asked you some questions about Ferro's

patent for Ferroboard liners. Do you recall that, sir?

A I do.

Q And a number of his questions were pertaining to the water

content in that Ferroboard liner. Do you recall that, sir?

A Yes.

Q Is there any information in that patent that changes your

analysis that, whether chrysotile or amosite, all asbestos

fibers detoxify at or above 900 degrees centigrade?

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211

A No. There is nothing that changes that. And I believe

that was Dr. Longo's number yesterday as well.

Q There was some questions about this one gram of asbestos

remaining after that hot top liner disintegrated. Do you

recall that, sir?

A I do.

Q Now, let's just say for the sake of a hypothetical that

somehow one gram of that liner remained. Would any asbestos

fibers in that one gram still have the same toxicity?

A In my opinion, no.

Q Why not?

A They've been heated and so they've been detoxified.

Q And if they remain and they're not forsterite, or these

other chemicals that you've testified about the conversion on

amosite, are they just somewhere else in that spectrum? Do I

understand that correctly?

Can you please testify to this, sir, instead of me

summarizing your opinions?

A In the theme where water is 6 percent of the fibers,

silica is more than half. And when they finally break down,

silica flour is a common outcome. Silica flour is very small

particles of silica, like beach sand, only very, very fine.

Silica flour is highly potent for other lung diseases, but

not mesothelioma. It's not a fiber. And then the rest of

it, you've got metals and all kinds of contaminants, products

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212

of combustion of the rest of the Ferroboard liner materials.

Q And so, again, assuming that somehow one gram of that

Ferroboard liner did not disintegrate after exposure to that

2,900 degree molten steel, would that one gram still have the

same potency with respect to mesothelioma?

A No. The potency when it was assembled at the factory

would have been much higher, if there's any potency remaining

in the steel mill.

Q And I believe that you also indicated that that one gram

would need to be aerosolized. Do I understand that

correctly?

A In order to inhale it, yes.

Q And just for purposes of making sure we're all using terms

in the same way, can you please explain your use of the term

aerosolized?

A Creating a cloud of respirable particles that you can

actually inhale.

Q So something that can go into your breathing zone, is that

accurate?

A Like cigarette smoke is an aerosolized form of the

combustion products of tobacco and cigarette paper.

Q Is there any evidence that you have seen in the record,

sir, that indicates that if that one gram of Ferroboard liner

did not disintegrate, that it would, in fact, have become

aerosolized?

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213

A I haven't seen anything that would constitute an

aerosolization mechanism.

MS. GANT: Thank you, that's all I have, Your Honor.

MR. HART: A couple to wrap up. You don't have any

questions? No questions?

MR. AMEELE: No.

RECROSS EXAMINATION

BY MR. HART:

Q Any question about the potency of the amosite after it

goes through the steel-making process is a function of the

heat that the amosite attains; is that correct, sir?

A It's a function of its temperature and the contact time of

that temperature, yes.

Q And your opinion is based on an understanding that you

understand that the Ferroboard liner is at 900 degrees or

higher; is that correct, sir?

A The coolest part, the outside part of the liner, yes.

Q And if the outside part of the liner is 750 degrees, then

not all of the outside part of the asbestos liner may change

to this other substance; is that fair?

A It's detoxified to a point of maybe 6 or 30 percent of its

original toxicity. But some of it may still look like, in

various tests, may still look like amosite.

Q And it's the part that remains amosite that is toxic,

correct?

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214

A So far as we can tell from available scientific data, yes.

Q And based on that x-ray diffraction analysis, when they

looked at amosite fibers heated to 750 degrees, and then

ground up and did that, they found a reduction by 50 percent

of the diffraction patterns of the amosite; is that correct?

A At that temperature, yes.

Q And they interpret that to mean half the amosite had

changed and half the amosite had not changed; is that

correct?

A I think that's the way the paper can be easily read, yes.

Q If half the amosite does remain in a Ferroboard liner,

that means it would be three percent, or amosite, instead of

6 percent?

A If it's the amosite formulation, yes.

Q Okay --

A In that portion of the liner that only reached those

temperatures.

Q Right. And if the portion of the liners that reached

750-degree temperatures, only -- would have some amosite

surviving, number one, correct? That's your understanding?

A I'll say there's reasonable -- the weight of evidence in

the literature is there might be some identifiable amosite.

I'm not sure it's still potent. But we don't have data on

that, so it's hard to say.

Q You don't have any scientific basis that it's not potent;

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is that correct? That's something you would like to see

studied before you, as an industrial hygienist, would

recommend that somebody breathe that dust?

A As I said earlier, I wouldn't recommend anybody breathe it

anyway.

Q Especially if it came from amosite that was heated only to

750 degrees?

A Truth be told, I'm more worried about carbon-based

cellulose-based things that generate --

Q Let's don't go there. I'm trying to get you out of here.

We're not talking about that. The amosite, you wouldn't

recommend anybody breathe that product because it would be a

risk, sir, if it contained half the amosite it started with?

A Yes. It's not a good idea to breathe carcinogens.

Q When OSHA regulated asbestos in 1972, they regulated

amosite, just like they regulated chrysotile, and just like

they regulated crocidolite?

MS. GANT: Objection. This is beyond the scope of

redirect.

MR. HART: It goes to the question about 1972 and

potency.

THE COURT: I'm going to sustain the objection.

Q You were asked a question about Dr. Selikoff in 1972 and

potency of amosite? Do you recall that?

A I do.

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Q Government agencies in 1972 did not recognize that amosite

was any less potent than other materials; is that correct?

A In 1972, with the OSHA standard, that's correct.

MR. HART: Thank you, sir. That's all I have, Your

Honor.

THE COURT: Thank you, sir. You may step down.

You're excused. And you can depart before they think of more

questions.

Ladies and gentlemen of the jury, I'll remind you not to

discuss the case over the weekend. You're ordered to have a

pleasant weekend and also asked firmly to come back and be

with us in the jury room by 9 o'clock on Monday morning.

Have a pleasant weekend, folks. Leave your notes in the jury

room.


1 united states district court western district of ...€¦ · are sworn -- these are questions and...

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