1
1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: MIDDLESEX COUNTY
2 ASBESTOS LITIGATION
3
——————————-
4 ANA PICINIC, individually and DOCKET NO. L-888-06 (AS)
as Administratrix of the Estate
5 of her Husband, JOHN PICINIC,
6
Plaintiff,
7
v.
8
GEORGIA-PACIFIC CORPORATION,
9 et al.,
10 Defendant.
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11
12
13
14 EXCERPT OF
TRANSCRIPT OF PROCEEDINGS
15
16
October 22, 2008
17
18
Before: THE HONORABLE ANN G. McCORMICK, J.S.C.
19
20
21 Appearances:
22 COHEN, PLACITELLA & ROTH, ESQUIRE
By: JOEL S. ROSEN, ESQUIRE
23 Counsel for the Plaintiff
24 HARTLINE, DACUS, BARGER, DREYE & KERN, L.L.P.
By: MICHAEL G. TERRY, ESQUIRE
25 Counsel for the Defendant Union Carbide Corp.
2
1 I N D E X
2 WITNESSES
3 ON BEHALF OF THE DEFENDANTS: DIRECT CROSS RED. REC.
4 VICTOR L. ROGGLI, M.D. 5/34 99 177 206
VICTOR L. ROGGLI, M.D.(voir dire) — 29 — –
5
6 PAGE
VICTOR L. ROGGLI, M.D.
7 (Jurors questions asked by the Court) 227
(Examination by Mr. Rosen) 237
8 (Examination by Mr. Terry) 242
9
10
11
12
13 EXHIBITS
14 ON BEHALF OF THE DEFENDANTS:
15 NO. DESCRIPTION PAGE
16 2170 Dr. Rogglis curriculum vitae 7
17 2172 Medical records provided to Dr. Roggli 40
18 2173 Dr. Rogglis handwritten notes 40
19 2174 Dr. Rogglis report 40
20 2175 Report by Dr. Roggli for Union Carbide 54
21
22
23
24
25
3
1 (The time indicated on the DVD is
2 indicated as 10:28 a.m.)
3
4 (Inaudible discussion between the Court
5 and defense counsel.)
6
7 THE COURT: Great. Yeah.
8 Were on? All right. On the record.
9 The first thing I wanted to do that I forgot
10 to talk to you about yesterday, you may remember that there
11 were a few questions asked of Mrs. Picinic that related to
12 her knowledge of her husbands work, and I said we werent
13 going to bring her back on the stand because her testimony
14 is — and this is conformed and agreed among counsel, that
15 she doesnt know anything about her husbands work during
16 that time frame.
17 There was one other item that I meant to talk
18 to you about because there was a question asked, and there
19 is an answer that is agreed to by counsel as to what Mrs.
20 Picinic would testify about, but there was no reason to
21 bring her up to the stand. And the question was — I cant
22 find the question, but it was about whether Ms. — Im not
23 saying it exactly because I dont have it in front of me,
24 but the question was whether Mr. Picinic could speak, read
25 and write English in 1972. The answer is, yes, he could
4
1 read and write English in 1972. And as far as his speech
2 was concerned, his — his — his ability to speak and –
3 and understand was exactly the same in 1972 as you observed
4 in the video deposition. So it was exactly the same. So
5 thats the answer to that question.
6 The other thing that I just need to explain
7 to you, sometimes witnesses have scheduling problems, and
8 we have to do things out of turn to keep things moving.
9 One of the defendants expert witnesses, Dr. Roggli, had
10 some scheduling issues about when he could appear in this
11 trial, so the plaintiffs graciously agreed that Dr.
12 Rogglis testimony could be taken out of turn. So the
13 defendant will be presenting one of its expert witnesses in
14 defendants case now, which is actually early, because
15 right now were in the course of presenting the plaintiffs
16 case. So Dr. Roggli is being presented out of turn.
17 MR. TERRY: Yes, Your Honor.
18 THE COURT: Thank you.
19 MR. TERRY: With permission of the Court and
20 with agreement of plaintiffs counsel, I would call Victor
21 Roggli.
22 THE COURT: Yes.
23 MR. TERRY: Dr. Roggli, if you would.
24 THE BAILIFF: Place your left hand on the
25 Bible, raise you right hand, state your full name, spell
5
1 your last name for the record, please.
2 THE WITNESS: Victor Louis Roggli,
3 R-O-G-G-L-I.
4
5 (The witness was sworn.)
6
7 VICTOR L. ROGGLI, M.D., called as a witness
8 by and on behalf of the Defendant, having been first duly
9 sworn, was examined and testified as follows:
10
11 MR. TERRY: Im sorry, Your Honor. I was
12 waiting for s sign. May I begin?
13 THE COURT: Yes.
14 MR. TERRY: Thank you.
15
16 DIRECT EXAMINATION
17
18 BY MR. TERRY:
19 Q. Good morning, Dr. Roggli.
20 A. Good morning.
21 Q. As Her Honor explained to the jury, you are a
22 witness who has been retained by the defendant Union
23 Carbide Corporation but are being permitted to testify at
24 this time out of turn. Do you understand that?
25 A. Yes, sir.
6
1 Q. Could you…
2 MR. ROSEN: Could you ask him to spell the
3 name?
4 MR. TERRY: Im sorry. The witness name is
5 Roggli. His last name is spelled R-O-G-G-L-I, Roger,
6 Oscar, golf, golf, Lima, Indian.
7 Are you ready, sir?
8
9 BY MR. TERRY:
10 Q. Dr. Roggli, could you tell the ladies and
11 gentlemen of the jury your name?
12 A. Victor Louis Roggli.
13 Q. And where do you reside?
14 A. In Durham, North Carolina.
15 Q. Are you associated or affiliated with the
16 university there?
17 A. Im with Duke University Medical Center.
18 Yes, sir.
19 Q. Dr. Roggli, Im going to show you what has
20 been marked as Exhibit 2170.
21 A. Okay.
22 Q. Id ask you if this is a copy of your
23 curriculum vitae.
24 A. Yes, sir, it is.
25 Q. Does the curriculum vitae list your training,
7
1 your academic appointments, your accomplishments and your
2 publications?
3 A. It does, yes, sir.
4 Q. Is this exhibit current and up to date?
5 A. It is, yes, sir.
6 MR. TERRY: Your Honor, we would offer
7 Exhibit 2170.
8 MR. ROSEN: No objection.
9 MR. TERRY: Can I leave this with the witness
10 for –
11 THE COURT: Yes. If we could just have –
12 youre agreeing it can be marked into evidence?
13 MR. ROSEN: No objection, Your Honor.
14 THE COURT: Okay. In evidence.
15
16 (Defense Exhibit No. 2170 was received
17 in evidence.)
18
19 THE COURT: I — I think theres a sticker.
20 MR. TERRY: I have a sticker –
21 THE COURT: — a sticker on there.
22
23 BY MR. TERRY:
24 Q. Dr. Roggli, could you tell the jury where you
25 went to college?
8
1 A. I did my undergraduate work at Rice
2 University in Houston, Texas.
3 Q. And when did you graduate from college?
4 A. In 1973.
5 Q. After college did you attend additional
6 schooling?
7 A. I did, yes, sir.
8 Q. Where did you go to school?
9 A. I went to medical school at Baylor College of
10 Medicine, which is right across the street from Rice in
11 Houston, Texas.
12 Q. And how long is medical school?
13 A. At that time Baylor had a three-year program,
14 so I completed my M. D. training in 1976.
15 Q. When you graduated from Rice University what
16 was your major?
17 A. I majored in — in biochemistry and
18 environmental engineering at Rice.
19 Q. Was going to medical school a change for you?
20 A. Not really. Between my junior and — and
21 senior years at — in the college I met with my advisor,
22 and when I — when I started training in biochemistry I was
23 interested in doing medical type of research. So my
24 advisor asked — when we were talking about where I would
25 apply for college he says, Well, what do you want to do? I
9
1 said, Medical research. He said, Well, you need to go to
2 medical school. I said, Oh, okay.
3 So that was basically how I decided to go to
4 — to — to Baylor.
5 Q. When you com — completed Baylor did you have
6 additional training after medical school?
7 A. Yes, sir.
8 Q. Where did you obtain the additional training?
9 A. Well, I then entered a residency training
10 program in the specialty of pathology with
11 Baylor-Affiliated Hospitals, which is also in Houston,
12 Texas, and completed that training in 1980.
13 Q. Was that a four-year program, Doctor?
14 A. Yes, sir.
15 Q. And you had indicated that you studied
16 pathology?
17 A. Yes, sir.
18 Q. Can you tell the jury, please, what pathology
19 is?
20 A. Well, pathology is a discipline of medicine
21 and it literally means the study of disease. And a
22 pathologist is a physician who makes diagnoses based either
23 on tissue samples sent to the laboratory, such as a biopsy
24 that a surgeon might obtain, or a pathologist makes
25 diagnoses based on fluid samples sent to the laboratory,
10
1 such as a blood, urine or spinal fluid sample.
2 Q. After your completion of training — well,
3 while you were in training did you also teach at Baylor or
4 were you an instructor at Baylor?
5 A. Yes, sir.
6 Q. After your completion of training at Baylor
7 did you remain in Texas or did you go to Duke University?
8 A. In 1980 I left Houston and moved to Durham,
9 North Carolina and became affiliated with Duke University
10 and the Durham VA Medical Center.
11 Q. When you first started with Duke were you an
12 associate?
13 A. Thats correct.
14 Q. After about a year or two did you become an
15 assistant professor?
16 A. Yes, sir.
17 Q. How long were you an assistant professor?
18 A. From 1981 to 1987.
19 Q. Then did you become an associate professor?
20 A. Thats correct.
21 Q. And how long were you an associate professor?
22 A. From 87 till 1994.
23 Q. And then did you become a full professor?
24 A. Thats correct, yes, sir.
25 Q. And are you still a full professor at Duke?
11
1 A. Yes, sir.
2 Q. You mentioned that when you joined Duke you
3 became associated with the VA Hospital?
4 A. Yes, sir.
5 Q. At Duke were you a professor, teacher and
6 researcher?
7 A. Yes. At the — at the time that I was
8 affiliated with the VA Hospital, that was my primary lo –
9 site or location where I worked from and — but I had
10 responsibilities at Duke as well that included research
11 work that I was doing both at Duke and the VA and also
12 teaching, which I did both a Duke and the VA. And those
13 two institutions are just across the street from each
14 other.
15 Q. Are you still affiliated with the Veterans
16 Administration, Doctor?
17 A. Only indirectly. I do some work, what they
18 call fee-basis work, where I go for — to help them with
19 conferences that they have during the week, but I — I
20 officially retired from the VA in September of 2006.
21 Q. Are you still associated with Duke
22 University?
23 A. Yes, sir.
24 Q. I took the liberty of extracting from your
25 curriculum vitae some of the things that you have done and
12
1 Ive put them up here on the screen.
2 First I would — Ive got your professional
3 organizations. Are you a member of each of the
4 professional organizations that is listed here?
5 A. Yes, sir, I am.
6 Q. And I think there are additional
7 organizations. Are you a member of these organizations as
8 well?
9 A. Yes, sir.
10 Q. I note that you are a diplomate of the
11 American Board of Forensic Examiners, for example. What is
12 that?
13 A. Well, forensic analysis is — is — is –
14 involves investigation of all types. It can be either a
15 scene relating to a crime, but it al — also can be
16 investigation of — of a causation of a disease. And so
17 because of the work that I have done in — in litigation
18 cases, I was contacted by a member — by an individual who
19 was running the — the board of forensic examiners and
20 asked if I would be interested in joining their society and
21 taking an ethical exam, which if you made a certain score
22 they allowed you to become a diplomate — diplomate of that
23 particular board.
24 Q. And are each of these organizations that we
25 put up here affiliated with the work that you do?
13
1 A. Yes, sir, to one degree or another they are.
2 Q. I also extracted these professional
3 appointments. Have you been appointed to these agencies
4 that are listed here?
5 A. Yes.
6 Q. The last one here, Doctor, the Scientific
7 Advisory Board, Mesothelioma — Mesothelioma Applied
8 Research Foundation, what is that?
9 A. Well, that is an organization, a nonprofit
10 organization, which was originally founded by Roger
11 Worthington to try to advocate for plaintiffs who had the
12 disease — or — or — or individuals who had the disease
13 malignant mesothelioma, to advocate for developing better
14 treatment techniques for these individuals because the
15 current treatments that are available are largely
16 ineffective and theres very little research money that the
17 government — had been put into investigating these –
18 these diseases — this disease. And so Mr. Worthington
19 when he formed the MARF group was intent on raising money
20 from a number of different sources and using that money to
21 fund innovative research thats looking into better, more
22 effective ways to treat mesothelioma.
23 Q. Have you had any success, Doctor?
24 A. Theres been a lot of successes, actually. I
25 think since the MARF has come into existence that the –
14
1 that theres — there are drugs like — a drug called
2 Alimta, which has been developed which has been found to be
3 markedly effective in a small percentage of patients with
4 mesothelioma. Not all patients, but some get a — a very
5 good response to that particular drug. And also work
6 thats been done for peritoneal mesothelioma in the last
7 number of years from several centers has resulted in a — a
8 marked improvement over the average survival than we had
9 seen in the past. And — and thats as a result of doing a
10 surgery where you remove — you do a debulking surgery,
11 removing as much tumor as you can see at operation and then
12 using a chemotherapy thats injected directly into the
13 abdominal cavity. And its heated up first because the
14 heating it up gives it greater activity. And using that
15 approach a number of investigators have — have greatly
16 improved the average survival of patients with peritoneal
17 mesothelioma.
18 Q. You are aware that the case were involved in
19 today deals with a man named Mr. Picinic, John Picinic?
20 A. Yes, sir.
21 Q. That he suffered peritoneal mesothelioma?
22 A. He did.
23 Q. At the time he was diagnosed in 2005 was it
24 generally regarded that that was a terminal disease?
25 A. Yes, sir. The remarkable successes I think
15
1 that weve seen in the last few years I first saw reported
2 in — in 2006 in a meeting in Chicago.
3 Q. So what he was confronted with then at his
4 diagnosis was essentially a terminal disease?
5 A. Yes, sir.
6 Q. I also extracted editorial boards where you
7 serve on peer-reviewed pathology journals?
8 A. Yes, sir.
9 Q. Do you serve on the editorial board of these
10 two peer-reviewed pathology journals?
11 A. I do, yes, sir.
12 Q. Would you explain for the jury what it means
13 when you have a peer-reviewed journal? What does that mean
14 in your discipline or your area?
15 A. Well, a peer-review process is a process to
16 try to be sure that what appears in the medical literature
17 is — is good science. And the way thats done is if an
18 investigator has done some work that he or she would like
19 to share with the rest of the scientific community, then
20 the investigator will produce a manuscript and send it to a
21 journal which is appropriate for the — the topic under
22 investigation.
23 For example, if the work has something to do
24 with cancer, then the investigator might submit it to the
25 journal Cancer. And the editor of the journal will then
16
1 send the manuscript out to two or three renowned experts in
2 the field and ask them to review the manuscript and comment
3 on the article: Tell them, first of all, is the work well
4 done; were the conclusions that the scientists drew from
5 their work actually justified; and are the findings of
6 sufficient interest to justify publishing them in the
7 medical literature. And then the editor takes that
8 information and will respond back to the author or
9 investigator and — and tells them one of three things.
10 One, Yes, we will accept your manuscript for publication in
11 our journal. Or number two, No, we wont, you have to send
12 it somewhere else. Or what happens most of the time at
13 least in my experience is they say, Well publish it, but
14 you have to make these changes that have been suggested by
15 our expert reviewers.
16 And that whole process then is a peer-review
17 process to try to make sure the publications are well done.
18 Q. And then once the article is accepted and
19 published in either Modern Pathology of The Archives of
20 Pathology, does it become part of the medical literature
21 available to those in your field?
22 A. Yes, sir, it does.
23 Q. And is it relied on by others as useful or
24 scientific information?
25 A. Yes, sir.
17
1 Q. Now, have you published yourself?
2 A. I have.
3 Q. Is this a list of the peer-review journals in
4 which articles that you have written or authored or
5 participated in been published?
6 A. Yes, sir.
7 Q. Are these articles that you have done — Ive
8 indicated at the top that they are articles on lung cancer
9 or asbestos-related diseases. Is that accurate?
10 A. Yes. Of the articles that Ive published,
11 roughly half of them have something to do with asbestos or
12 asbestos-related diseases.
13 Q. Have you also been asked to present — make
14 presentations at various organizations, entities or
15 conferences?
16 A. Yes, sir, I have.
17 Q. Ive listed some here which indicate that you
18 have made appearances at various places in this country as
19 well as in Australia where you have made presentations in
20 those areas. Have you done that?
21 A. Thats correct, yes, sir.
22 Q. And have you done that throughout your
23 career?
24 A. Yes, sir.
25 Q. There are other places that you have appeared
18
1 as well, same thing, making presentations to these
2 societies at their meetings or conferences?
3 A. Yes, or — or attending workshop — workshops
4 where investigators exchanged ideas. Either — either –
5 either — either/or of those two things.
6 Q. And you have published yourself, have you
7 not, Doctor?
8 A. I have, yes, sir.
9 Q. I took from your resume and just totaled up
10 the things that you have listed, that you have published
11 163 full-length papers over your career, 29 chapters in
12 books, 19 editorials and six separate books where youve
13 either authored a chapter in the book or been responsible
14 for the book itself. Is that accurate?
15 A. Yes, sir.
16 Q. And each of the publications that you have
17 participated in is listed in the CV that we have marked and
18 admitted into evidence?
19 A. Thats correct.
20 Q. Doctor, did you have an opportunity to
21 participate in something called the Helsinki conference or
22 meeting?
23 A. I did, yes, sir.
24 Q. Do you remember when the meeting occurred?
25 A. We met in Finland in January of 1997.
19
1 Q. Who was it that met?
2 A. Well, the organiza — the — the meeting was
3 organized by a — a group who belonged to the Finnish
4 Institute of Occupational Health, and what they wanted to
5 do was to bring experts from around the world together to
6 try to come to a consensus about how youd diagnose
7 asbestos-related diseases and how you would determine when
8 a particular individual case is asbestos-related.
9 Q. Im going to show you what has been marked as
10 Exhibit 2171 and ask you if you can identify this article.
11 A. This looks like this is our consensus report
12 that was published in September of 1997 in the Scandinavian
13 Journal of Work, Environment & Health, and it summarized
14 the highlights of the meeting which — which took place
15 over three days in January of 1997.
16 Q. And were you one of the people that
17 participated in and signed off on what is marked the
18 Helsinki Criteria reports?
19 A. Yes, sir.
20 MR. TERRY: Your Honor, we would offer
21 Exhibit 2171 as a learned treatise.
22 MR. ROSEN: No objection.
23 MR. TERRY: Your Honor (inaudible).
24
25
20
1 (Inaudible discussion between the Court
2 and defense counsel.)
3
4 THE COURT: All right. Let — may I just see
5 counsel?
6
7 (The following side-bar conference took
8 place out of the hearing of the jury:)
9
10 THE COURT: You know, I dont like to be
11 proactive and, you know, I — I try to let everybody try
12 their case, but when theres something obviously in my view
13 thats incorrect I — I just cant let it happen. And –
14 and I knew the rule of the jurors regarding learned
15 treatises was a little bit different in other jurisdictions
16 and — to the extent called to the attention of the expert
17 witness upon cross-examination or relied upon by the expert
18 on direct examination, statements contained in public
19 treatises, periodicals or pamphlets on a subject of
20 history, medicine, or other art — Im sorry, or other
21 science or art, established as a reliable authority by
22 testimony or by judicial notice, that that — thats whats
23 the exception.
24 Then it says, If admitted, the statements may
25 not be received as exhibits but may be read into evidence,
21
1 or, if graphics, shown to the jury. So the document is not
2 received technically into evidence. The paper itself.
3 MR. TERRY: No. No. I — I understand.
4 MR. ROSEN: I believe that was –
5 THE COURT: Okay.
6 MR. TERRY: Our (inaudible) — we had
7 discussed it beforehand and he agreed that I did not
8 necessarily have to (inaudible) learned treatise and
9 establish that the witness regarded it as reliable.
10 MR. ROSEN: But I think our –
11 MR. TERRY: Its –
12 MR. ROSEN: — our understanding is the same.
13 MR. TERRY: Our understanding is the same. I
14 just didnt –
15 MR. ROSEN: Its the same as the rule,
16 actually. I just didnt know it couldnt formally be
17 admitted into evidence.
18 MR. TERRY: (Inaudible).
19 MR. ROSEN: Our understanding was both that
20 this is not a document that can go out with the jury or
21 anything of that nature. Thats fine.
22 THE COURT: All right. So you understand I
23 cant…
24 MR. TERRY: You cant admit it into evidence.
25 MR. ROSEN: Right. Right. Understood.
22
1 MR. TERRY: Well, how do we deal with it? I
2 — I was just interested so that we have a way of
3 identifying. I understand the limitations on its –
4 THE COURT: Oh, you can read it to the jury,
5 can show it as a graphic, but it just is not in evidence
6 that goes back to the jury. Its not a piece of evidence.
7 MR. TERRY: Right.
8 MR. ROSEN: Its a document testified to.
9 THE COURT: Oh, absolutely.
10 MR. TERRY: We can show it.
11 THE COURT: Absolutely. And you can read it
12 to the jury. You can show it on the screen.
13 MR. TERRY: Okay.
14 THE COURT: Its just not a document that
15 they take back into the jury room with them, so its
16 technically not evidence.
17 MR. TERRY: So do you want me to do that or
18 do you want to advise the jury?
19 THE COURT: No, I dont have to advise them
20 of everything. Its just — its just — well keep it
21 identified as — by date.
22 MR. TERRY: Okay.
23 THE COURT: But you can show it to the jury
24 or read it.
25 MR. TERRY: Okay. Then let me retender.
23
1 THE COURT: Okay.
2 MR. ROSEN: I assume whats going to happen
3 (inaudible) if hes going to refer to it, he may read from
4 it or he may not. I dont know thats whats going to
5 happen.
6 THE COURT: Or coun — or counsel — assuming
7 that he relies on it, counsel can read it. Counsel can
8 show excerpts of it to the jury.
9 MR. TERRY: Right.
10 THE COURT: Yes.
11 MR. TERRY: All right.
12
13 (The following took place in open
14 court:)
15
16 MR. TERRY: Your Honor has the exhibit.
17 THE COURT: Oh, I do?
18 MR. TERRY: With the admonishment of the
19 Court, I would reidentify UCC 2171 and tender it for use as
20 a learned treatise under our rule of evidence 803 C 18,
21 understanding that it is not technically evidence that we
22 can go back to the jury, but can be used in examination of
23 the expert witness.
24 THE COURT: All right.
25 MR. ROSEN: No objection.
24
1 What number was that, Mr. Terry?
2 MR. TERRY: Im sorry. The number, sir, was
3 2171.
4 MR. ROSEN: Thank you.
5
6 BY MR. TERRY:
7 Q. Doctor, so that you understand, this
8 consensus report that we have here that you identified has
9 been permitted by the Court to be used under our Rules of
10 Evidence as a learned treatise. That is, we may display it
11 in this fashion to the jury, we may read from it and
12 examine you on it, but it does not go back with them into
13 the jury room, so it is not technically an exhibit. Do you
14 understand?
15 A. Right.
16 Q. Now, this is the consensus report that you
17 identified?
18 THE COURT: May I just clarify?
19 MR. TERRY: Yes.
20 THE COURT: Whats repeated by the doctor,
21 what you see on the board, it is evidence that you can
22 consider. Its — the restriction is we — you cannot take
23 back in the jury room the document itself because it is
24 what we call a learned treatise and it talks about a lot of
25 things, and we dont want the jury to start drawing its own
25
1 expert conclusions by whats in the article. So the only
2 thing that is evidence is what is discussed by the expert
3 witness in the context of the article, what is shown to you
4 on the screen, and also what plaintiffs counsel may raise
5 on cross-examination. Its just were not letting you take
6 the document itself back in the jury room. But what is
7 discussed and shown to you is evidence.
8 MR. TERRY: Thank you, Your Honor.
9
10 BY MR. TERRY:
11 Q. This is the result of the work that the
12 conference did in Helsinki back in 1997?
13 A. Yes.
14 Q. And you were a member of the group or
15 organization that did the work?
16 A. Yes, sir.
17 Q. Do you still agree with or abide with the
18 statements made in the consensus report?
19 A. By and large, yes, sir.
20 Q. Are there any changes or modifications that
21 you think are necessary?
22 MR. ROSEN: May I? My only objection at this
23 point is it seems at this point, Your Honor, were getting
24 into substance rather than qualifications. Perhaps Im
25 wrong, but I, at this point –
26
1 THE COURT: Thats — that is true. If you
2 could complete the qualification testimony.
3 MR. TERRY: Okay.
4
5 BY MR. TERRY:
6 Q. Well come back to that, Doctor.
7 A. Thank you.
8 Q. All right. Now, over the course of your
9 practice as a research scientist or doctor or pathologist
10 have you conducted independent research of your own?
11 A. Yes, sir.
12 Q. Can you describe for the jury what kind of
13 independent research you have conducted in general terms?
14 A. Ive been involved with experimental animal
15 research that was performed at the National Institute of
16 Environmental Health Sciences, which happens to be located
17 about a 20-minute drive from Duke in Research Triangle
18 Park, and I did that work as a grant from the VA Hospital
19 system, a federal grant. And I did that work with
20 Dr. Arnold Brody, who at the time was a Ph.D. scientist who
21 was doing intramural work at the National Institute of
22 Environmental Health Sciences. And so I did that work for
23 12 years.
24 In addition to the — that sort of
25 experimental animal work, I was also involved in doing
27
1 research on — on human tissue samples that were sent to
2 our laboratory and in determining types and amounts of
3 asbestos that you could find in lung-tissue samples from
4 individuals with various diseases and various exposures,
5 correlating that with their work history and with what
6 particular diseases they had. And then I was also involved
7 with some — some other research that was being done by
8 clinicians at our hospital that had to do with scarring of
9 the lung caused by inhalation of asbestos dust.
10 Q. In the middle group that you identified,
11 where you were doing the research on human tissue, were you
12 actually determining whether or not the tissue had asbestos
13 in it, the lung tissue had asbestos in it?
14 A. Yes, sir.
15 Q. Were you determining not only how much but
16 what kind or what type?
17 A. Yes, sir.
18 Q. Were you dealing with something called
19 asbestos bodies?
20 A. Yes, sir.
21 Q. What are asbestos bodies?
22 A. Asbestos bodies are structures that in –
23 when inhaled — when a fiber is inhaled into the lung, if
24 the fibers are sufficiently long enough and durable enough,
25 then the body has a coating mechanism where it — where the
28
1 cells deposit iron on the surface of the — of the fiber.
2 And we think its a protective mechanism, but what it does
3 do is allows us to actually see the fiber in the lung
4 tissue with a regular light microscope.
5 Q. In connection with your tenure at Duke are
6 you also a professor where you teach medical students?
7 A. Yes, sir.
8 Q. And have you done that during the period of
9 time youve been at Duke?
10 A. I have.
11 Q. In connection with your work in the asbestos
12 field doing the research that youve identified, making the
13 publications that youve identified, have you been involved
14 in other cases?
15 A. Yes, sir.
16 Q. Have you appeared as an expert witness in
17 other cases?
18 A. I have.
19 Q. Have you appeared as an expert witness in
20 other cases both at — at the request of the people
21 bringing the lawsuit, the plaintiffs, as well as the people
22 defending the lawsuits, defendants?
23 A. Yes, sir, I have.
24 Q. Youve testified at the request of plaintiffs
25 and defendants equally or more for one than the other or do
29
1 you have any idea?
2 A. Oh, its varied over time. If — if youre
3 looking over the — the entire career in which Ive
4 testified as an expert wit — witness since 1985, its
5 about three times for plaintiffs for each one time for
6 defendants. In the last several years thats switched and
7 Ive testified more for defendants than for plaintiffs.
8 Q. Have you been accepted as an expert witness
9 in both state and federal cro — courts across the land?
10 A. Yes, sir, I have.
11 MR. TERRY: Your Honor, at this time I
12 believe Ive established the qualifications of Dr. Roggli
13 as a pathologist and as an expert in the causes of
14 asbestos-related disease and would tender him as such.
15 MR. ROSEN: Just a few questions.
16
17 CROSS-EXAMINATION (Voir dire)
18
19 BY MR. ROSEN:
20 Q. Good morning, Dr. Roggli.
21 A. Good morning.
22 Q. Dr. Roggli, at the end there you talked about
23 your testimony and your ser — providing your expert
24 services in connection with cases, in connection with
25 litigation. Is that correct?
30
1 A. Yes, sir.
2 Q. And I believe you testified that going back
3 to 1985 if you look from — correct me if Im wrong, but if
4 you look from 1985 to todays date you will find that the
5 relationship of times you worked for plaintiffs versus
6 defendants would be three to one; is that correct?
7 A. Yes, sir.
8 Q. And thats going from 1985 to 2008; is that
9 right?
10 A. Yes, sir.
11 Q. However, I think you also testified that over
12 the last couple of years, I guess maybe that would be the
13 last two years, its turned around to the point where now
14 your testimony would be three to one defendants versus
15 plaintiffs; is that correct?
16 A. I didnt say three to one today. I may have
17 said that in the past. I mean, it depends upon which year.
18 This year — its even more than three to one for this
19 particular year 2008.
20 Q. What is it for this year?
21 A. I think this is the ninth time Ive testified
22 this year and this is the eighth time for defendants Ive
23 testified.
24 Q. So –
25 A. I think that it began to shift about the year
31
1 — around the year 2000, and gradually Ive looked at more
2 cases for defendants and testified in more cases for
3 defendants.
4 Q. Now, you say this year in terms of trial
5 testimony youve — youve testified at trial for a
6 defendant — when we say a defendant were talking about
7 asbestos-related cases; is that correct?
8 A. Yes, sir.
9 Q. And were talking about either a company that
10 mined and — and — and processed the asbestos or a company
11 that had a product that used asbestos in their product; is
12 that correct?
13 A. Yes, sir.
14 Q. And in the times that youve testified this
15 year I believe youve tes — you say its about eight times
16 for a defendant in an asbestos case and once for a
17 plaintiff in an asbestos case. Is — is that court
18 testimony –
19 A. Yes.
20 Q. — in the courtroom?
21 A. Yes, sir.
22 Q. Have you appeared this year in depositions?
23 A. Yes, sir.
24 Q. About how many times have you — just so the
25 jury un — I — I know you know and I know, but I just want
32
1 to make sure the jury understands.
2 When we talk about a deposition, when you get
3 retained as an expert in a case you issue a — typically
4 issue a report is that correct, for whatever — whoever
5 youre working for; is that right?
6 A. Yes, sir.
7 Q. And then that report gets sent to the other
8 side; is that correct?
9 A. Typically, yes, sir.
10 Q. Okay. And then the other side — if youre
11 working for the defendant it goes to the plaintiff. If
12 youre working for the plaintiff it goes to the defendant.
13 That other side will then bring you in and under oath
14 usually in a lawyers office somewhere they will depose
15 you, is that correct, and ask you questions about whats in
16 your report? Is that correct?
17 MR. TERRY: Excuse me. Your Honor, we would
18 object. This seems far beyond the scope of testing his
19 qualifications.
20 MR. ROSEN: Ill finish it up real quickly.
21 I just have one or two — I just have one question very
22 similar to the last ones based on that.
23 THE COURT: I would sustain the objection.
24 The questions are appropriate. Its just not during the
25 voir dire.
33
1 MR. ROSEN: I understand.
2 THE COURT: Would you allow him to ask his
3 one question to finish up this line?
4 MR. TERRY: Is it one more?
5 MR. ROSEN: Ill have to make it one more,
6 obviously, so yes.
7 MR. TERRY: One more is fine.
8 MR. ROSEN: Thank you.
9
10 BY MR. ROSEN:
11 Q. So in terms of depositions could you tell us
12 about how many depositions youve given this year in cases
13 on behalf of a — an asbestos company versus how many
14 depositions youve given this year on behalf of a
15 plaintiff?
16 A. I havent really tallied it up. My — my
17 best guess would probably be three times as many
18 depositions as I have testified. Thats a guess.
19 Q. Thats a –
20 A. And –
21 Q. — total number you mean?
22 A. Yes, total number. Thats for 2008.
23 And its been more times for defendants than
24 for plaintiffs, but I dont think its as extreme as the
25 eight to one for testifying at trial.
34
1 MR. ROSEN: Your Honor, I — no further
2 questions and I have no objection to Dr. Roggli being
3 accepted as an expert.
4 THE COURT: Thank you.
5 Dr. Roggli, therefore, is admitted as an
6 expert pathologist as well as an expert in the causes of
7 asbestos-related diseases.
8
9 DIRECT EXAMINATION (Contd)
10
11 BY MR. TERRY:
12 Q. Doctor, we were talking about the Helsinki
13 report, and we had looked at the Helsinki report up on the
14 board.
15 In connection with the Helsinki report are
16 there any changes or modifications or clarifications that
17 you think are necessary for the Helsinki report?
18 A. Well, you have to realize first of all that
19 this is a — a summary document. Its four or five to
20 seven pages long. I think its roughly seven pages long.
21 And that its a summary of a 98-page document which was
22 proceedings of — of the — of the conference. It was not
23 — it was published by the Finnish Institute of
24 Occupational Health but not in any journal. Its — its
25 available from the Finnish Institute for anybody who — who
35
1 requests it.
2 The main thing that I would testify — that I
3 would change in here that — for this — for this summary
4 document is on page 313 where we mention in the section on
5 mesothelioma a history of significant occupational,
6 domestic or environmental exposure to asbestos will suffice
7 for cau — for attribution, but then on the summary
8 bulletin points they left out the word significant.
9 And Im freq — frequently asked about that
10 question, why — and — and if I had had to rewrite this I
11 would not have left out the word significant in the
12 bulletin points.
13 Q. We have — weve run up the bulletin points.
14 Can — can the jury read these?
15 Which bulletin point are you talking about,
16 Doctor? Numbering, the top one is number one.
17 A. The fourth one, I believe, where it says,
18 Occupational history or brief, which we said in the text a
19 significant occupational history. That should be included
20 there, a significant occupational history or brief or
21 low-level exposure should be considered sufficient for
22 mesothelioma to be designated as occupationally-related.
23 Q. So this bullet point you say is misleading
24 when compared to the original text?
25 A. Yes. And, of course, when we wrote it I — I
36
1 think that — that nobody anticipated how those words would
2 be used in a courtroom.
3 Q. All right. Now, Doctor, in connection with
4 this case, you were retained by Union Carbide Corporation
5 to answer two questions, were you not?
6 A. Yes, sir.
7 Q. The first question was whether or not Mr.
8 Picinic actually suffered or could you confirm the
9 diagnosis of peritoneal mesothelioma. And the second
10 question was whether Union Carbide Corporation Calidria
11 asbestos contributed to cause his peritoneal mesothelioma,
12 correct?
13 A. Yes, sir.
14 Q. Now, in connection with the first question,
15 were you provided with certain medical records or — and
16 slides?
17 A. Yes, sir, I was.
18 Q. Im going to hand you what I have marked as
19 collectively Exhibit 2172 and ask you if this is a summary
20 of the information that you were provided.
21 MR. ROSEN: Can I — Im sorry. Can I just
22 take a brief look at what youre handing the witness?
23 MR. TERRY: Forgive me.
24 MR. ROSEN: Thats all right.
25 MR. TERRY: Im sorry.
37
1 MR. ROSEN: No problem.
2 Thank you.
3 MR. TERRY: 2172.
4
5 BY MR. TERRY:
6 Q. Doctor, again, 2172, is this a summary of the
7 information that you were provided?
8 A. Yes, sir, it is.
9 MR. TERRY: 2172, the medical record.
10
11 BY MR. TERRY:
12 Q. Okay. So that we provided to you these
13 medical records that are listed here?
14 A. Thats correct.
15 Q. Including the pathology reports?
16 A. Yes, sir.
17 Q. Did you review all the medical records or
18 just those things that you considered important from your
19 perspective as a pathologist?
20 A. I reviewed all the medical records that I re
21 — that I received. The one — I keep as a permanent part
22 of my files the ones I think are rel — relevant to the
23 diagnosis and causation of the cancer.
24 Q. We also had sent to you…
25 Okay. Do we have the slides? Okay.
38
1 We also sent you what I have shown up here as
2 an inventory of the pathology.
3 A. Yes, sir.
4 Q. Okay. Im just going to highlight some of
5 this so that the jury can see it. This — this refers to a
6 stained slide, number one here?
7 A. Right.
8 Q. Labeled SP 06-6238 alpha lesser omentum.
9 What is that?
10 A. Well, lesser omentum is a — a — a part of
11 the covering, loose connective tissue, in the abdomen and
12 that the surgeon in this case sampled that he found in –
13 some abnormal tissue in and sent to the laboratory to
14 examine to determine what the abnormality was due to.
15 Q. Going back to the whole exhibit, there are
16 some — a large number of slides. Did you review each and
17 every slide that we sent to you?
18 A. I did.
19 Q. And did you perform an independent evaluation
20 of the slides that had been preserved by the doctors and
21 hospitals who treated Mr. Picinic?
22 A. Yes, sir.
23 Q. Did you make notes of the things that you
24 considered to be important, if you will?
25 A. I did, yes, sir.
39
1 Q. Doctor, Im going to show you what has been
2 marked as Exhibit 2173. Is this a copy of your notes?
3 A. It is.
4 Q. And is it written in your own hand?
5 A. It is.
6 Q. And is it an extract of the things that you
7 considered to be important from the medical records that
8 you reviewed and the slides which you studied?
9 A. Yes, sir.
10 Q. At the conclusion of your review did you
11 prepare a report?
12 A. I did.
13 MR. ROSEN: I have a copy. Thank you.
14
15 BY MR. TERRY:
16 Q. Doctor, Im going to show you what has been
17 marked as Exhibit 2174 and ask you if this is the report
18 that you prepared.
19 A. Yes, it is.
20 MR. TERRY: Okay. Doctor, if I may. We
21 would offer Exhibits 2173 and 1274 into evidence.
22 MR. ROSEN: No objection.
23 Its 3 — 2173 and 2174 is what you marked?
24 MR. TERRY: Correct. Youre talking about
25 the (inaudible).
40
1 AN UNIDENTIFIED SPEAKER: Yes, that was the
2 one.
3 MR. TERRY: Your Honor, we would offer
4 Exhibits 2172, the summary of the medical records received,
5 2173, the doctors notes, and 2174, the doctors report.
6 THE COURT: Okay. Any objection?
7 MR. ROSEN: No.
8 THE COURT: Would you mark these into
9 evidence? Thank you.
10
11 (Defense Exhibit Nos. 2172, 2173 and
12 2174 were received in evidence.)
13
14 MR. TERRY: Can I proceed?
15 THE COURT: Yes.
16
17 BY MR. TERRY:
18 Q. Doctor, while shes marking those as received
19 into evidence, the jury has an opportunity to see your
20 handwritten notes. Is there anything of significance from
21 your notes that you think they should be pointed to or
22 advised of?
23 A. Well, the first like 80 percent of that page
24 is based on my review of the — of the slides that were
25 obtained from the Hackensack University Medical Center
41
1 originally, and then some — several slides from the New
2 York Presbyterian Hospital.
3 The first set of 40 slides I received were
4 unstained, so that means that the — that the slides had
5 been cut from the block — tissue been cut from the block
6 and put on the slide but not stained. And so for those
7 slides we had to stain a representative slide from each
8 section so we knew what — what sort of tissue we were
9 dealing with.
10 And so the — the initial description above
11 the bar at the very — toward the very bottom is what the
12 slides showed looking with the — the usual stain that a
13 pathologist uses with the usual light microscope. And then
14 at the very bottom is special stains done in my laboratory.
15 And the results of those special stains confirmed that the
16 — the cancer that had been sampled was, in fact, a
17 mesothelioma.
18 Q. All right. Are you making reference here,
19 Doctor, to where it says, My lab?
20 A. Correct.
21 Q. All right. So you used a special stain on
22 the tissue?
23 A. Yes, sir.
24 Q. What is the stain?
25 A. Well, what — what we call immunostains. The
42
1 — the way it — its done is that special antibodies are
2 prepared that react with certain chemicals that are
3 produced by a cell, such as a tumor cell. And if the tumor
4 cell is producing that, the antibody sticks. And then
5 there is a — a color marker attached to the antibody that
6 shows where that protein is located.
7 And so we use those to identify specific
8 substances in a tumor. For example, on — under — on the
9 second line about my lab it says, CK 5/6. That is — there
10 are about 20 different cytokeratins that have been
11 identified that are present in human cells and they — each
12 one has a different type name given to it. Its been found
13 that the cytokeratin 5 and cytokeratin 6 is frequently
14 present in mesothelioma tumors but not it other tumors that
15 can look like it. So its a useful marker.
16 In this case it shows that it was positive to
17 a moderate to strong degree.
18 On the other hand, theres some markers on
19 the very last line. B 72.3, that is an antibody which
20 reacts with a protein present in carcinoma cells that are
21 not mesothelioma cells. And that marker youd expect to be
22 negative in a mesothelioma, which it was in this case.
23 So the findings of the positive stains and
24 the findings of the negative stains were what you would
25 expect for a mesothelioma and not what you would expect for
43
1 a cancer that — that mimicked a mesothelioma but was
2 actually something else.
3 Q. On the basis of your review of the medical
4 records, the actual tissue slides that have been preserved
5 by the hospital, and the actual slides that your laboratory
6 stained, were you able to arrive at a conclusion as to
7 whether or not John Picinic suffered from malignant
8 peritoneal mesothelioma?
9 A. Yes, sir.
10 Q. And what was your opinion in that regard,
11 Doctor?
12 A. I believe that he did, and it was of the what
13 we call the epithelial type.
14 Q. Now, do you know what that disease is?
15 A. Yes, sir.
16 Q. Can you explain to the jury what that disease
17 is?
18 A. Well, its a cancer, and its a cancer of –
19 of the lining of the abdominal cavity. In fact, there are
20 three different body cavities which have a lining of the
21 same type of cell, called the mesothelial cell. And the –
22 the one thats most frequently involved with this cancer is
23 the lining of the lung. Its called the pleural cavity.
24 The next most frequently involved is the lining of the
25 abdominal cavity where the abdominal organs, like the
44
1 intestines, liver, stomach, spleen, are located. And then
2 the least-common site involved by this tumor is the — is
3 the sac around the heart.
4 And so mesothelioma then is a cancer of the
5 lining of one of those body cavities. And peritoneal
6 mesothelioma is a cancer of the lining of the abdominal
7 cavity.
8 Q. Can peritoneal mesothelioma result from
9 asbestos?
10 A. It can.
11 Q. Do we know how it results from asbestos?
12 A. Well, like for — for all cancers we dont
13 know all the steps that are involved in transforming from a
14 normal human cell to a malignant cell thats growing wild,
15 but we know — do know a number of the parameters that are
16 involved and a number of steps in the process.
17 So, for example, for mesothelial cells, we
18 know that if the fibers interact with those cells they can
19 cause a number of changes in the cell which can take them
20 down the road toward becoming a cancerous cell.
21 Q. Do they start on this process in the presence
22 of the asbestos?
23 A. Yes, sir.
24 Q. So does the asbestos have to be physically
25 present in the area where the cancer begins or the cells
45
1 change?
2 A. There is some scientific disagreement on
3 that, but I think the — the consensus is that, yes, the
4 fibers have to be there.
5 Q. For lack of a better term, would the
6 conventional wisdom be that the fibers have to be in the
7 area where the cancer begins?
8 A. Yes, sir.
9 Q. Do we know how the asbestos causes a cell to
10 become cancerous?
11 A. Not precisely. We know a number of
12 mechanisms that probably are in effect, but we dont know
13 which ones are most important.
14 For example, we know that — that asbestos
15 fibers are a source of what is known as reactive oxygen
16 species. That is chemicals that can interact with a — a
17 number of the — of the building-block cells in your body
18 and cause injuries to them, including the DNA, which is the
19 genetic code, which becomes altered in cancer cells.
20 We also know that asbestos stimulates
21 inflammatory cells, like white blood cells, to arrive on
22 the scene, and that those cells also produce reactive
23 oxygen species that in normal circumstances are used to
24 repair tissue or to kill invaders like bacteria or viruses,
25 but they can also damage your normal cells and lead to
46
1 injury that could result in transformation.
2 We think that one of the most important
3 factors, though, is the fiber gets into the cell and
4 interferes with normal cell division, where in normal cell
5 division you take your genetic material and its duplicated
6 and then its split evenly between the two daughter cells.
7 And theres a very precise mechanism that makes sure that
8 — that the same genetic information goes to each daughter
9 cell. We believe the asbestos fibers get in there and
10 interfere with that process so that theres abnormal
11 distribution in the two cells. And you may even have loss
12 of — of parts of — of chromosomes. You may have loss of
13 important genes that — that are involved with regulating
14 cell growth. And if just the right losses or gains of
15 genes occur, then you can set in process — in motion a
16 process which can eventually lead a cell down toward that
17 malignant pathway.
18 Q. The jury has heard that the most likely way
19 that asbestos gets in the human body is by inhalation. Is
20 that — is that an accurate statement?
21 A. Yes, sir, thats by far the most important
22 way.
23 Q. If the asbestos gets into the human body by
24 inhalation, does it then have to go to the peritoneal area
25 if it is going to cause peritoneal mesothelioma?
47
1 A. Yes, sir.
2 Q. How does it get there?
3 A. Well, theres three theories about how it
4 gets there, one of which I — I dont think is likely at
5 all and two others which we dont know which one is the
6 more important.
7 The first is direct penetration through the
8 diaphragm. The — the thoracic cavity where the — where
9 the lungs are located is separated from the abdominal
10 cavity where the intestines are located by a muscle called
11 the diaphragm thats important in our normal breathing. In
12 some parts that muscle is very thin. So if a fiber gets –
13 works its way through the lungs and through the surface of
14 the lungs and then across that diaphragm, its in the
15 peritoneal cavity. So thats one mechanism.
16 The other is that the lungs have mechanisms
17 of clearing themselves so if you breathe in excess amounts
18 of fibers, the lung is constantly trying to remove it on a
19 — what we call a — a mucous blanket that lines your
20 airway tubes. And — and abnormal or foreign particles
21 that are breathed in get embedded in that mucous and the
22 lungs cleanses itself by removing that mucous out from the
23 lungs. And every day unconsciously you small — you
24 swallow some very small amounts of that stuff which come
25 up. And if it contains asbestos fibers that have been
48
1 removed, then now the asbestos fibers are in mucous that go
2 through the esophagus, through the stomach, through the
3 intestine. And experimental studies have shown if you put
4 asbestos fibers in the intestine some of them can work
5 their way through the wall of the intestine and get to the
6 surface of the intestine, which is where the mesothelial
7 lining cells are. So thats the second way that it can get
8 there.
9 The third way is that theres lymphatic
10 pathways which drain fluid out of tissues, which keep us
11 from blowing up all the time from too much fluid
12 accumulation. And the lymphatics run from the abdominal
13 cavity up to the thoracic cavity. Every time you take a
14 breath its creating a vacuum in the chest cavity so that
15 the lymph flow goes toward the chest.
16 Some people think that — that the fibers can
17 get into those lymphatic channels and that the direction
18 can reverse and get the fibers to the abdominal cavity. I
19 dont think thats a likely important route because the –
20 the direction of lymph flow is opposite to that.
21 So I think the most important one is direct
22 penetration across the diaphragm. I dont know how much
23 swallowing asbestos fibers might contribute to getting
24 fibers to the peritoneal cavity. And I dont think the
25 lymphatic routes are important.
49
1 Q. We have talked before you arrived about
2 different kinds of asbestos. Are you familiar with the
3 mineralogy of asbestos?
4 A. Yes, sir.
5 Q. I know that you published a book, Pathology
6 of Associated Diseases. Do you cover mineralogy of
7 asbestos in the book?
8 A. Yes, sir, in chapter one.
9 Q. Now, are there two basic groups, amphibole
10 and serpentine?
11 A. Yes, sir.
12 Q. And is there a difference between the two
13 groups?
14 A. There is.
15 Q. I showed the jury when we started this
16 picture. Can you see that, Doctor?
17 A. Yes, sir, I can.
18 Q. Do you recognize the picture of the amphibole
19 and chrysotile?
20 A. Yes, sir.
21 Q. Is chrysotile the only commercially available
22 kind of serpentine?
23 A. It is.
24 Q. So serpentine is chrysotile?
25 A. Serpentine asbestos is chrysotile, yes, sir.
50
1 Q. Now, amphibole, theres more than one kind of
2 commercial asbestos, correct?
3 A. Yeah, theres two types of commercial asbes
4 — amphibole asbestos and at least three types of
5 noncommercial.
6 Q. Is one of the types of noncommercial called
7 tremolite?
8 A. Yes, sir.
9 Q. Does the tremolite belong on this side of the
10 picture?
11 A. It does.
12 Q. Now, I have depicted what I believe are
13 electron microscope images of amphibole and chrysotile. Is
14 that accurate?
15 A. Yes, sir.
16 Q. Ive indicated that amphiboles are primarily
17 long, hard, straight and rigid. True?
18 A. Thats correct.
19 Q. Chrysotile is short, curly, flexible?
20 A. Yes, sir.
21 Q. Why is that?
22 A. Well, it has to do with just the nature of
23 the — of the fibers, of — of the — of the mineralogy to
24 it. The chrysotile is what we call a phylosilicate, which
25 is a sheet silicate in which you have sheets of — of
51
1 silica and atoms that are joined with each other. And on
2 top of that is a magnesium layer. And that layer gets
3 rolled up just like a scroll. And if you look at that
4 scroll on end you can see the hole running through it, and
5 that scroll is a chrysotile fibril. So its a sheet thats
6 rolled up into a tube. And thats — thats how you get
7 the chrysotile.
8 The two lawyers are not evenly matched, so
9 theres mismatching, and that causes the curviness to the
10 fiber. Thats why when youve got a fairly long chrysotile
11 fiber it has this S-shaped or serpentine appearance to it.
12 On the other hand, the amphiboles are sheets
13 — or not — theyre — theyre chain silicates. Theyre
14 formed by chains of silica molecules that are then
15 intermixed with various other elements like iron and
16 magnesium and sodium and manganese and some of them. And
17 it — it forms these long, straight rods. And so its
18 mineralogy is different and its susceptibility to being
19 dissolved in tissue fluids is quite different.
20 Q. Ive indicated here that amphiboles do not
21 break down in the lungs. Is that an accurate statement, in
22 your experience?
23 A. Thats correct, yes, sir.
24 Q. And that the chrysotile is soluble in acid
25 and readily breaks down in the human lung. Accurate?
52
1 A. Yes, much more readily so than the amphibole
2 fibers. Thats correct.
3 Q. Which means that the amphibole has a high
4 biopersistence, lasts a long time, chrysotile does not?
5 A. Correct.
6 Q. Ive indicated that the amphibole stays in
7 the lungs for decades. Is that accurate?
8 A. Yes, sir. Yes, sir.
9 Q. Now, I talked about — or the — the picture
10 that I prepared refers to shorter to fibers cleared from
11 lungs in a matter of weeks or months. Is that accurate?
12 A. Yes, sir.
13 Q. In your business or profession is there a
14 meaning to the term short or shorter fibers?
15 A. Well, its — its all relative, short
16 compared to long. So theres — theres sort of an
17 arbitrary line which we draw distinguishing short from long
18 fibers. And thats five microns in length.
19 Q. What is the significance of the point where
20 you have distinguished short from long, that five microns?
21 A. Well, experimental animal studies that have
22 looked at the question show that in — in the live, intact,
23 experimental animal the short fibers do not cause either
24 scarring of the lungs or cancers like mesothelioma.
25 Q. Would it be fair to say that based on your
53
1 experience and the animal studies you referred to that
2 fibers less than five microns do not cause injury?
3 A. Yes. Theres no evidence that they cause a
4 lasting injury. They may cause injury to individual cells,
5 but theres no evidence that its an injury that cannot be
6 repaired by normal cell processes. Whereas fibers that
7 stay around for long periods of time and have these long –
8 this long morphology greater than five microns, and
9 probably greater than ten microns in length, can cause
10 lasting injury that can then lead to scarring or cancers.
11 Q. Does the same relation between scarring apply
12 to mesothelioma; that is, the short fibers less than five
13 microns based on your experience and the animal studies do
14 not cause mesothelioma?
15 A. Correct.
16 Q. Now, is there a difference between the fibers
17 and their relationship with mesothelioma?
18 A. Yes.
19 Q. What is the relationship?
20 A. Well, it — theres what we call a fiber
21 gradient in terms of potency, how powerful a fiber type is
22 in producing the disease. And its universally recognized
23 that the amphiboles are more potent than chrysotile in
24 producing mesothelioma, with crocidolite or blue asbestos
25 being the most potent type, amosite being next, and
54
1 chrysotile being the least potent of the commercially
2 available forms of asbestos.
3 Exactly what that ratio is will differ
4 somewhat from author to author, but I think that the best
5 analyses that are available out there indicate that the
6 commercial amphibole fibers are hundreds of times more
7 potent than chrysotile.
8 Q. In connection with this case — thank you,
9 maam — we asked — Union Carbide asked you to reach an
10 opinion as to whether or not Calidria asbestos contributed
11 to Mr. Picinics peritoneal mesothelioma, did we not?
12 A. Yes, sir.
13 Q. Im going to show you what has been marked as
14 Exhibit 2175 and ask you if this is the report that you
15 prepared that answered that question?
16 A. It is.
17 MR. TERRY: Your Honor, we would offer
18 Exhibit 2175.
19 MR. ROSEN: I have no objection.
20 THE COURT: All right. 2175 in evidence.
21
22 (Defense Exhibit No. 2175 was received
23 in evidence.)
24
25
55
1 BY MR. TERRY:
2 Q. I believe this is for you, Doctor.
3 A. Thank you.
4 Q. Now, Doctor, I want you to understand that
5 for purposes of the question about whether Mr. Picinics
6 peritoneal mesothelioma was caused by his exposure to
7 Calidria asbestos that I want you to assume as true the
8 following facts. Okay?
9 A. Sure.
10 Q. I want you to assume that Mr. Picinic was
11 involved in construction in this area from 1963 until
12 either 1976 or 78.
13 A. (Moved head up and down.)
14 Q. I want you to assume that from the years 1970
15 through 1976 or 78 he worked with a product manufactured
16 by Georgia-Pacific Corporation that was known as tape joint
17 compound that contained about six percent asbestos,
18 one-third of which was Calidria supplied by Union Carbide
19 Corporation.
20 A. (Moved head up and down.)
21 Q. I want you to assume further that Mr. Picinic
22 when he used that product would have been required to put
23 it on — it came premixed, so he put it on wet, but when it
24 dried he was obligated to sand it, which he has indicated
25 produced dust, and that after a — the days end he was
56
1 obligated to sweep up what was left over and the sweeping
2 produced dust.
3 Do you understand what Ive asked you to
4 assume?
5 A. Yes, sir.
6 Q. If you have — if you make those assumptions,
7 do you conclude that Mr. Picinic would have been exposed to
8 some measure of Union Carbide Calidria during the years
9 1970 to 1976 or 78?
10 A. Yes, sir.
11 Q. On the basis of that assumption, do you have
12 an opinion to a reasonable degree of medical certainty as
13 to whether or not the Calidria asbestos he was exposed to
14 contributed to Mr. Picinics peritoneal mesothelioma?
15 A. Yes, sir.
16 Q. What is your opinion?
17 A. I believe it did not.
18 Q. Now, in the report you indicate that there
19 are about four reasons that you have upon which you base
20 that opinion. The first is the nature of the Calidria
21 itself?
22 A. Yes, sir.
23 Q. Are you familiar with the geological
24 formation where that material was mined?
25 A. Yes, sir.
57
1 Q. What is unusual about that formation?
2 A. Well, its an unusual form of — of
3 chrysotile compared to the type of chrysotile which was
4 most widely used in the United States, which was chrysotile
5 mined in Quebec, Canada. And there the fibers are
6 relatively long and — and in parallel bundles. Whereas
7 the Calidria chrysotile was unusual in that its a matted
8 type of deposit where the fibers instead of being aligned
9 and in the same direction were — were matted so that they
10 were aligned in numerous different directions. So it had
11 that unusual characteristic.
12 It also has an unusual characteristic in that
13 if you aerosolize the dust of Calidria chrysotile, as the
14 fibers become long — longer they also become fatter. And
15 thats not true, at least not to that degree, for Canadian
16 chrysotile, where long fibers can also be quite thin. And
17 that becomes important in the ability of the fibers to be
18 deposited lower in the respiratory tract because the main
19 determinant of how deep into the lungs the fiber can
20 penetrate is how the wide the fiber is, what its diameter
21 is.
22 Q. Do you know whether or not the Calidria mine
23 area is or is not contaminated with tremolite?
24 A. Yes.
25 Q. Is it or is it not?
58
1 A. Well, theres — theres been some — a lot
2 of studies that have looked at the — the issue of
3 tremolite in the New Idria deposit or Calidria deposit, and
4 it has been identified that at the very periphery of the
5 mine there is a small amount of tremolite. However, that
6 tremolite deposit is not where the — the mining actually
7 took place. And samples that have been taken from the –
8 from the portion of the Calidria deposit that was mined by
9 Union Carbide have shown no identifiable amphibole fibers
10 in — in — in terms of a tremolite contaminant.
11 Q. You had mentioned that the Calidria was
12 studied to see how it reacted when it was aerosolized. Was
13 that the result of a particular study that was performed?
14 A. Yes.
15 Q. Doctor, Im going to show you what has been
16 marked as Exhibit 2176 and ask you if you can identify
17 that, please.
18 A. This is an article published in Environmental
19 — I cant read that because the — Research looks like it
20 is, Environmental Research, by Kent, Pinkerton and
21 colleagues, which included Arnold Brody and James D. Crapo,
22 and the title of it is Characterization of –
23 Characterization of Three Types of Chrysotile Asbestos
24 After Aerosolization.
25 MR. TERRY: Your Honor, I would like to use
59
1 Exhibit 2176 as a learned treatise under 803 C 18.
2 MR. ROSEN: No objection.
3 THE COURT: Yes, thats fine.
4 MR. TERRY: All right.
5
6 BY MR. TERRY:
7 Q. Doctor, in — in this article, did these
8 scientists study how Calidria reacted when it was put in an
9 aerosol form?
10 A. Yes, sir.
11 Q. And did they find, as you have described,
12 that the increasing fiber length of Calidria resulted in
13 increasing width?
14 A. Yes.
15 Q. Ive put up there — oh, Im sorry.
16 Doctor, Im going to show you what has been
17 marked as 2177 and ask you if that is a simplistic but
18 accurate representation of what happens with Calidria.
19 A. Yes, sir.
20 Q. Okay. Now, Doctor, we — were displaying
21 for the jury the — the diagram that I asked you to look
22 at.
23 Down here is a Canadian fiber that is
24 indicated as a long rod. If you assume that that one is 20
25 microns long, is that a representative length of a long
60
1 fiber.
2 A. Sure.
3 Q. Then these here would be like five microns?
4 A. True.
5 Q. Does this indicate what they found, the
6 Pinkerton study found, when you start to put the fibers
7 together to get a long fiber that they become a bundle like
8 this?
9 A. Yeah. I think it — its a schematic diagram
10 which sort of summarizes the — the ideas which they
11 identified, which — that the Calidria fibrils, the
12 individual, small fibrils, are for the most part five
13 microns or less in length, and that they — as they
14 aggregate to form these longer chains they become broader
15 and broader.
16 So that if you look at the distribution of
17 fiber lengths and diameters, what they found for the
18 Calidria chrysotile is that only a very small percentage of
19 the fibers or bundles were longer than five microns but
20 thin enough to be deposited in the lower respiratory tract.
21 So it had a small fraction of the dust, which was what we
22 would call respirable, able to be deposited in the lower
23 respiratory tract.
24 Q. So is there a generally recognized dimension
25 that the fiber has to be to be respirable if respirable
61
1 means gets all the way down to the little air sacs or
2 alveoli?
3 A. It will — it will vary from animal to animal
4 depending upon the geometry of the respiratory tract. For
5 humans its roughly two to three microns you start getting
6 fibers that are — its very unusual to find a fiber in a
7 human lung sample thats more than a couple of microns in
8 diameter.
9 Q. Now, in connection with the report that you
10 prepared you also indicated that not only did you have the
11 nature of Calidria and the difference between Calidria and
12 other chrysotile fibers in connection with respirability,
13 but you also had animal studies.
14 A. Yes.
15 Q. All right. There are various kinds of animal
16 studies, are there not?
17 A. Yes, sir.
18 Q. You can take animals and you can inject them
19 with the material directly into their lungs or their
20 peritoneum?
21 A. Yes, sir.
22 Q. Or you could have them inhale it?
23 A. Yes, sir.
24 Q. I dont know if — if youve been made aware
25 of what Im going to explain to you. Heres Plaintiffs
62
1 Exhibit 138. Its called the Mellon study.
2 A. Yes, sir.
3 Q. And Plaintiffs Exhibit 173, which is the
4 second Mellon study.
5 A. Yes, sir.
6 Q. Now, the first one was done in 1966?
7 A. Yes, sir.
8 Q. And it appears that at the request of Union
9 Carbide Corporation people at the Mellon Institute injected
10 rats with asbestos?
11 A. Yes, sir.
12 Q. Are you familiar with the procedure that they
13 would have used to inject it in the peritoneum as well as
14 the lungs?
15 A. Yes, sir.
16 Q. And then in 1972 they came back and they
17 injected rats with a particular kind, RG 244, UCC Calidria?
18 A. Yes, sir.
19 Q. And again here they talk about tracheal
20 insufflation?
21 A. Yes, sir.
22 Q. Are you familiar with this process?
23 A. Yes, sir.
24 Q. When you were doing animal research did you
25 do this process yourself?
63
1 A. This is not the mechanism which we used to
2 expose the rats to at NIEHS. No.
3 Q. Are you familiar with what happens if you
4 expose rats to the material in this way?
5 A. Yes, sir.
6 Q. Is it a good indicator or a valid indicator
7 about how the rats would react to the material if they just
8 inhaled it?
9 A. Not necessarily.
10 Q. What does that mean, Doctor?
11 A. Well, what it means is that — that in any
12 experimental animal study you have to be careful in trying
13 to extrapolate it to humans and you have to look at what
14 the differences are concerned.
15 The — this mechanism that was used here, the
16 tracheal insufflation method, is a good method to compare
17 different dusts because if you — if you put in the same
18 amount of one type of dust, the same amount of another type
19 of dust, and you find that one is causing more injury than
20 the other, then it may indicate that that is a — a — a
21 type of particle which — which could be more dangerous or
22 could be causing more problems than — than the other type.
23 But what you have to realize is that the –
24 the — the advantages of using that method is its cheap.
25 Its easy to — to instill the material into the — into
64
1 the lungs of the — of the animals.
2 Its — its much more expensive to have
3 inhalation chambers where you produce a — a dust cloud of
4 a certain quality and certain characteristics that the
5 animals have to inhale. Thats much more expensive to do.
6 So that its a cheap method is its advantage.
7 Its disadvantage is that it bypasses the normal defense
8 mechanisms of the lungs that — that has for removing
9 particles and filtering out ones that are too large to ever
10 make their way down into the res — into the respiratory
11 tract. So you have to take the results with a grain of
12 salt.
13 So once youve established that something may
14 cause injury by insufflation, if you are going to then try
15 to make any — any conclusions at all about how that would
16 apply to the human situation, then you have to look at the
17 inhalational model where the animals are actually breathing
18 the dust and youre not bypassing the mechanisms by
19 injecting it directly into the lungs.
20 Q. Are you aware of animal studies where mice or
21 rats actually breathed in the dust as opposed to had it
22 injected into their lungs bypassing all the defense
23 mechanisms?
24 A. Yes, sir.
25 Q. Im going to show you what has been marked as
65
1 Exhibit 2178 and ask you if you are familiar with this
2 article.
3 A. I am. Yes, sir.
4 Q. And what is this article, sir?
5 A. This is called Coalinga Fibre, a Short
6 Amphibole-Free Chrysotile, part two, Evidence For Lack of
7 Tumorigenic Activity, by Drs. Ilgren and Chatfield,
8 published in Indoor Building Environment in 1998.
9 MR. TERRY: Your Honor, I would request
10 permission to be allowed to use this as a learned treatise.
11 MR. ROSEN: No objection.
12
13 BY MR. TERRY:
14 Q. Doctor, Im giving you the article again.
15 Now, in this study are they looking at the
16 results of the rats or the mice actually breathing in the
17 dust?
18 A. Yes, sir.
19 Q. And what did they find?
20 A. Well, this study was — was also actually –
21 as the Pinkerton study, was performed at NIEHS, where
22 Dr. Pinkerton was working as a post doc in the laboratory
23 of Dr. Brody, and looked at the various fiber types that
24 they were using in their inhalational studies. And after
25 he evaluated the different fiber types and published this
66
1 article, which appeared in 1982, they also exposed some
2 animals to — to the various types of dust, the Jeffrey
3 mine chrysotile from Canada and the — the Calidria type of
4 — or Coalinga type of chrysotile. And they followed the
5 animals for — for periods of time to look to see whether
6 scarring developed in the lung and whether neoplasms,
7 cancers, or mesotheliomas, developed. And the studies were
8 — were performed but not published until Drs. Ilgren and
9 Chatfield came along and — and — and found the studies
10 and — and published them.
11 And what they found was that when you had –
12 when you breathe in the fibers and allow the normal defense
13 mechanisms to take place is that they didnt see any
14 scarring, any significant scarring, or neoplasia, with the
15 Coalinga or Calidria chrysotile, but they did with the
16 Canadian chrysotile.
17 Q. Doctor, Im going to show you what has been
18 marked as Exhibit 2179 and ask you if you are familiar with
19 this article.
20 A. Yes. Ive seen this. This is Dr. Bernstein
21 and colleagues article, Comparison of Calidria Chrysotile
22 Asbestos to Pure Tremolite: Final Results of the
23 Inhalation, Biopersistence and Histopathology Examination
24 Following Short-Term Exposure.
25 MR. TERRY: Your Honor, I would like
67
1 permission to use Defendants Exhibit 2179 as a learned
2 treatise under our Rule 83 — 803 C 18.
3
4 BY MR. TERRY:
5 Q. Doctor, Im returning the article to you.
6 What did those people find?
7 A. Well, again, they — they did not find any
8 evidence of a — of a fibrotic type of histopathologic
9 response to the Calidria chrysotile, which is different
10 from what youd expect from pure tremolite, an — an
11 amphibole fiber.
12 Q. Okay. Now, the jury has heard that there
13 have been studies performed where people have injected
14 chrysotile asbestos into the pe — peritoneal area of rats
15 and that that produces mesothelioma. Are you familiar with
16 such studies?
17 A. Yes.
18 Q. Can you comment on the validity of those
19 studies?
20 A. You have to be very careful in — in
21 extrapolating the — the injection studies particularly in
22 the rat peritoneum model, since it — it turns out that
23 almost any foreign material that you inject into the
24 peritoneal cavity of the rat will produce cancers of the
25 type that resemble mesothelioma.
68
1 There was actually an article that appeared
2 in Science, the journal Science, back in the — it was
3 either in the late 70s or early 80s, that showed that if
4 you take a dime, a U. S. coin, put it in the peritoneal
5 cavity of — of a rat, it caused the development of
6 mesotheliomas. So they were jokingly saying that we should
7 ban money because — because that would produce the cancer
8 in — in that experimental study.
9 So you have to be very careful with those
10 studies for — for — from both reas — from both the
11 directions because, one, almost anything that you can put
12 into the peritoneal cavity in large enough amounts will
13 cause disease. And yet if even — even fibers which we
14 know are carcinogenic, if you put them in in small enough
15 amounts they dont cause a disease.
16 And, for example, a study done by Davis in
17 England showed that if you put in an amount of — of — of
18 chrysotile dust, not Calidria but just regular Canadian
19 chrysotile dust, into the peritoneal cavity of a rat and
20 there was fewer than 57 million fibers, you got no
21 diseases.
22 So you have to be very careful extrapolating
23 studies that are done by injections into peritoneal
24 cavities to — to — to human observations.
25 Q. On the basis of your own work and your
69
1 analysis of the literature that is generally available, do
2 you conclude that experimental animal studies have failed
3 to demonstrate that you can produce cancers from exposure
4 to Calidria?
5 A. Yes. Correct.
6 Q. Now, Doctor, I want to talk to you a little
7 bit about some of your own work. Have you attempted to
8 correlate mesothelioma and occupational exposures?
9 A. Yes, sir.
10 Q. Im going to show you what has been marked as
11 Exhibit 2180 and ask you if you can identify this.
12 A. Yes. This is an article which — which I
13 published with some of my colleagues in 2002 in the journal
14 Ultrastructural Pathology, which is entitled Malignant
15 Mesothelioma and Occupational Exposure to Asbestos: A
16 Clinical Pathological Correlation of 1,445 Cases.
17 MR. TERRY: Your Honor, I would request
18 permission to use Exhibit 2180 as a learned treatise under
19 803 C 18.
20 MR. ROSEN: No objection.
21 THE COURT: All right.
22
23 BY MR. TERRY:
24 Q. Doctor, can you describe for the jury what
25 that article is about?
70
1 A. Well, two things this article is about is
2 that in — in 1994 — 1993 a couple of colleagues and –
3 and myself, Dr. Arnold Brody and Dr. Philip Pratt,
4 published an article showing that amosite asbestos is the
5 main type of asbestos you find in lung-tissue samples from
6 mesothelioma cases in the United States. And that was
7 based on a study of 94 patients that we had analyzed
8 lung-tissue samples.
9 So in around — somewhere around 2000, I
10 think it was in 1999, I had a new fellow work in my
11 laboratory, Dr. Sharma (phonetic), who wanted a project,
12 and so we decided to look at a couple things. One is what
13 are the occupations in this country that we see in
14 association with mesothelioma, since we had a very large
15 database. It turned out when we analyzed it we had 1,445
16 cases for which we knew something about their occupational
17 or exposure to asbestos. And, secondly, we were interested
18 in the finding that we found about amosite being the
19 predominant type of fiber was also the case across all the
20 different occupations or if that just tended to cluster in
21 certain occupations but not in others.
22 And so in this study we had actually a subset
23 of our cases, 268 cases, compared to the 94 cases from
24 1993, where we had done fiber analysis of lung tissue for
25 the — and mesothelioma cases to look at fiber type.
71
1 And — and so basically this article is
2 reporting our findings of what sort of occupations are
3 related to mesothelioma in the United States and what sort
4 of fiber types are the main ones that we find in these
5 different occupations.
6 Q. With respect to the second question, what was
7 the main fiber type that you found with respect to
8 malignant mesothelioma in the occupations?
9 A. Well, with very few exceptions, what we –
10 what we found is that amosite was the — the main fiber
11 type across the boards. It didnt matter whether the
12 individual was exposed to asbestos as an insulator in the
13 shipyard or in the railroad or in an oil refinery or
14 chemical plant or — or in a manufacturing plant. That
15 amosite was the main type of asbestos we were finding in
16 lung-tissue samples.
17 Q. What did you conclude from that, Doctor?
18 A. We concluded that since the main source of
19 amosite in the workplace was in insulation products that
20 the — that insulation products were the major source of
21 asbestos in the U. S. associated with the development of
22 mesothelioma.
23 Q. So was it your conclusion then that amosite
24 was the agent responsible for most of the mesothelioma in
25 the country, according to your work?
72
1 A. Yes, sir.
2 Q. And that that amosite was from insulation,
3 pipe insulation?
4 A. Yes, sir.
5 Q. Im going to show you what has been marked as
6 Exhibit 2181 and ask you if you can identify this.
7 A. This is an article we actually published at
8 — at — at almost exactly one year after the 1993 article
9 in the American Journal of Industrial Medicine called
10 Asbestos-Related Disease Associated With Exposure to
11 Asbestiform Tremolite.
12 MR. TERRY: Your Honor, I would request
13 permission to use Exhibit 2181 as a learned treatise under
14 Rule 803 C 18.
15 MR. ROSEN: Continuing no objection.
16 THE COURT: Thats fine.
17 MR. TERRY: May we approach? Im not trying
18 to be –
19 MR. ROSEN: No, I — I dont mean that –
20 MR. TERRY: Oh. Okay.
21 MR. ROSEN: No. I just dont feel the need
22 to keep standing up, Michael. Thats fine.
23
24 BY MR. TERRY:
25 Q. Doctor, can you explain to the jury what that
73
1 article is and what it means?
2 A. Well, when we — we published in — in 1993
3 that amosite was the main fiber type we were finding in
4 mesothelioma, but there was actually a subset of cases in
5 which tremolite was an important fiber type that we found.
6 And one of the main sources of tremolite in the workplace
7 was contamination of Canadian chrysotile by tremolite.
8 So we — we looked at a number of cases, a
9 couple of cases with asbestosis and several cases, I think
10 it was six cases, of mesothelioma, maybe five cases of
11 mesothelioma, that — in which tremolite was the main fiber
12 type found in the tissues, and we did not find any
13 commercial amphiboles in those cases.
14 Q. Doctor, Im going to show you what has been
15 marked as Exhibit 2182 and ask you if you can identify this
16 article.
17 A. This was an article that came out in the –
18 in the journal Annals of Occupational Hygiene the same year
19 as the study on the 1,445 cases in — in — in 2002.
20 And in this particular study we were looking
21 again and focusing on the role of tremolite in
22 mesothelioma. So it was sort of an update of the study
23 from 1994 and eight years later we had quite a few
24 additional cases in which tremolite appeared to be…
25 MR. TERRY: Just — just back up here. Im
74
1 sorry. Im sorry.
2 Your Honor, we would request permission to
3 treat 2182 as a learned treatise so the doctor may discuss
4 it.
5 THE COURT: You have no objection?
6 MR. ROSEN: I have no objection, Your Honor.
7 THE COURT: Okay. Thats fine.
8
9 BY MR. TERRY:
10 Q. Now, Doctor, I — I apologize for
11 interrupting you. You were describing to the jury what you
12 did in the article.
13 A. Well, these were again cases which we found
14 where tremolite was the — was present, how often tremolite
15 was present in tissue samples, how often it was elevated
16 above expected levels from the general population, and –
17 and in a subset of the cases it was the only type of
18 asbestos fiber found above background and — and where that
19 — what the source of that fiber like — likely was, which
20 we identified mainly as chrysotile and to some degree also
21 from talc.
22 Q. In that article or in the articles where you
23 were looking at tremolite and mesothelioma were you dealing
24 with pleural mesothelioma?
25 A. Yes, sir. All the cases which we had that
75
1 had elevated levels of tremolite but no commercial
2 amphibole fibers elevated above background and the patient
3 had mesothelioma, it was of the pleural type.
4 Q. You used a phrase elevated above background.
5 What does that mean?
6 A. Well, all of us have some amounts of asbestos
7 in our lung-tissue samples. Thats something I learned
8 really early on when I was a resident where we — when I
9 looked at cases from — of people who died at the Methodist
10 Hospital in Houston, Texas between 1976 and 1980 and had no
11 known exposure to asbestos and had no asbestos-related
12 disease. We analyzed their lungs and — you can find some
13 amounts of asbestos in almost everybody from the general
14 population.
15 We found asbestos bodies present in 92
16 percent of those cases we analyzed, but its at very low
17 levels. And we also find some asbestos fibers in people
18 from the general population where the technique which we
19 use, our methodology, we find the main fiber type is
20 tremolite for fibers that are at least five microns or more
21 in length. And we find up to about 2,500 fibers per gram
22 of — of wet lung tissue as — as — as part of the
23 background.
24 So of the cases we were looking at in this –
25 in this study would be those who had levels that were well
76
1 above the 2,500 fibers per gram of wet lung tissue which we
2 could find in the general population.
3 Q. Did you reach any conclusion with respect to
4 the relationship between the tremolite above background
5 that you found and the pleural mesothelioma?
6 A. Yes. We concluded that in roughly — I dont
7 know if we said it in this paper, but looking at all of our
8 cases, that roughly three percent of our cases that the
9 mesothelioma appeared to be due to elevated levels of
10 tremolite, which probably came from chrysotile asbestos.
11 Q. Which would indicate that exposure to
12 Canadian chrysotile that was contaminated with tremolite,
13 the tremolite in the contaminant would produce the pleural
14 mesothelioma?
15 A. Correct.
16 Q. Now, Doctor, on the basis of — of all the
17 work that youve done youve prepared a series of graphs
18 that I would appreciate if you could explain to me –
19 A. Sure.
20 Q. — if you dont mind.
21
22 (An off-the-record discussion between
23 counsel took place.)
24
25 MR. TERRY: Okay.
77
1 MR. ROSEN: Before you go — may I just stand
2 back here a little bit so I can watch?
3 THE COURT: Certainly.
4 MR. ROSEN: Thank you, Your Honor.
5 Appreciate it.
6
7 BY MR. TERRY:
8 Q. Now, Doctor, is — is this a graph that
9 displays information that you have obtained as a result of
10 your work?
11 A. Yes. If it would be all right, what I could
12 do is summarize where were going on these four graphs.
13 Q. Yes, if you would, sir.
14 A. Well, the — the — the four graphs will show
15 you, one, that not all mesotheliomas are caused by
16 asbestos. Two, that a higher percentage of peritoneal
17 mesotheliomas are not caused by asbestos than the — than
18 — than pleural mesotheliomas. Three, that theres a
19 difference in fiber types as far as their ability to cause
20 mesothelioma. And, finally, why in my opinion chrysotile
21 doesnt contribute to peritoneal mesothelioma. That would
22 be the last one.
23 Q. So what does the first one show here?
24 A. The first one shows the — we talked about
25 asbestos bodies as fibers that are coated in the lung so
78
1 that you can see them with a microscope, and you can
2 actually quantitate those in the lungs, measure how many
3 are present. And we did that for this — I think this
4 graph is for 153 mesothelioma cases. And we find that
5 there is that — what we could call a bimodal distribution.
6 That is, there appears to be two humps there. And on the
7 — the bottom axis as you go from left to right are
8 increasing numbers of asbestos bodies.
9 Q. All right. So you –
10 A. But –
11 Q. Okay. Are you talking about this axis right
12 here?
13 A. Right. Exactly.
14 So the — the very first one is the groups –
15 is the number of cases that had between one-tenth and one
16 asbestos body per gram of wet lung, and then on the very
17 far end on the other end are the cases that had between a
18 million and ten million asbestos bodies per gram of wet
19 lung tissue.
20 And so the yellow bars represent the cases
21 that have asbestos body counts within our background range,
22 which weve found to be zero to 20 is what you find in the
23 general population. Usually around one or two on average.
24 And that the red bars are those that have increased amounts
25 of asbestos bodies in their lung-tissue samples.
79
1 And the fact that there are two humps to this
2 graph indicate that there are two populations here. The
3 best explanation for those two populations is one is a
4 group that in this particular series is about 17 percent of
5 the cases have asbestos body counts that are within
6 background range and are not related to asbestos, and the
7 other 83 percent have elevated asbestos body counts and are
8 related to asbestos.
9 Q. Are you assuming then that people who are
10 exposed just to normal background levels of asbestos are
11 not at risk of mesothelioma from that asbestos?
12 A. Right. Theres no evidence that background
13 levels of exposure cause mesothelioma.
14 Q. Now, we have heard in the courtroom that
15 mesothelioma is described as a signature disease of
16 asbestos.
17 A. Yes, sir.
18 Q. Have you heard the term?
19 A. Yes.
20 Q. Do you think the term is accurate?
21 A. Yes, in the sense that when you see a patient
22 with mesothelioma more likely than not the patient will
23 have — have been exposed to asbestos, and more likely than
24 not that will be the cause of it, if thats all you know
25 about that patient is that they have mesothelioma.
80
1 And thats what this graph shows. 83 percent
2 of the time they have increased asbestos bodies.
3 17 percent of the time they do not.
4 So because asbestos — because mesothelioma
5 is a signature malignancy for asbestos exposure does not
6 mean that every case is caused by asbestos.
7 Q. Is there any cancer that we as humans are
8 subject to that is caused by only one agent?
9 A. No, not that we know of. I mean, even for
10 the — the most obvious one like lung cancer where 85 to
11 95 percent of the cases are caused by cigarette smoking,
12 theres still a percentage of the cases, a small
13 percentage, that are not related to smoking, as best we can
14 identify.
15 Q. The second graph that we have, what does this
16 show, Doctor?
17 A. This shows — its — its divided the — our
18 cases into — by sex and by location in four groups. And
19 the — the — the two bars on the far right are pleural and
20 peritoneal mesotheliomas in women, which were not dealing
21 with that in this case, so I wont discuss those further.
22 The two bars on the left are — are pleural and peritoneal
23 mesotheliomas in men. And what we find, that the yellow
24 bars are the cases that have asbestos body counts or
25 asbestos fiber counts within the background range. And the
81
1 red bars are the ones that have elevated amounts of
2 asbestos.
3 So what we find for pleural mesothelioma in
4 men is that in this particular series roughly 92 percent of
5 the cases, that would be 274 out of 298, were caused by
6 asbestos and eight percent were not. And for peritoneal
7 mesotheliomas about three-quarters are caused by asbestos
8 in men, about one quarter is not. So, again, a higher
9 percentage of peritoneals are not related to asbestos as
10 compared to pleural mesotheliomas. And thats partly
11 because it takes a higher dose of asbestos on average to
12 cause peritoneal mesotheliomas as compared to pleural
13 mesotheliomas.
14 Q. So that means that everyone that was in the
15 — in the red bar suffered from mesothelioma and on tissue
16 analysis had the presence of asbestos bodies above
17 background?
18 A. Yes, sir.
19 Q. Were the asbestos bodies that you found
20 amphiboles?
21 A. In most of those cases. Thats shown on the
22 next slide.
23 Q. All right. Lets go to the next slide.
24 A. This slide shows the percentage of cases in
25 the — in the — the — the most left column that had an
82
1 abnormal asbestos content by our analysis. That was
2 89 percent of the cases. In 64 percent of the cases it was
3 only commercial amphiboles, amosite or crocidolite, that
4 was present in abnormal amounts. In three percent of the
5 cases I mentioned earlier tremolite or two other
6 noncommercial amphiboles, actinolite or anthophyllite, were
7 the only types of asbestos present in abnormal amounts.
8 And then in 11 percent of the cases the asbestos content
9 was no different from what you and I would have in our
10 lungs, and so the mesothelioma was not asbestos-related.
11 Q. It would be idiopathic?
12 A. Yes, sir.
13 Q. And the fourth slide, Doctor?
14 A. Well, before we leave that one we need to
15 reemphasize that — that three percent of the cases, that
16 this –
17 Q. This right here?
18 A. Yes. For — for the — for the entire series
19 that weve got here this is talking about pleurals and
20 peritoneal mesotheliomas. About 90 percent of our cases
21 are pleurals. About ten percent are — are peritoneals.
22 But as it turned out, for the — the TAA-only group the
23 only cases we had with elevated tremolite and no other
24 fiber type elevated were all pleural mesotheliomas.
25 Q. So this number right here represents pleural
83
1 mesothelioma where the only elevated fiber type was the
2 tremolite?
3 A. Right. So this — this — this illustrates
4 the point that chrysotile — Canadian chrysotile exposures
5 can, if youre exposed to high enough levels, cause
6 mesothelioma, but its a small percentage of the cases.
7 And in our experience its always pleural.
8 Q. In connection with the exposure then where
9 you have mesothelioma, are all those that have elevated
10 fiber types elevated amphibole fiber types?
11 A. Are all of them elevated?
12 Q. No. All the ones that have elevated fiber
13 types. Im sorry. Where you have elevated asbestos bodies
14 or asbestos counts –
15 A. Yes.
16 Q. — are what — what is elevated; amphiboles
17 or chrysotile?
18 A. Oh, yeah. We had no cases in which
19 chrysotile was the only fiber type elevated above
20 background, so were talking about amphiboles in — in all
21 these cases. We — you had a — a few cases where
22 chrysotile was also elevated, but never by itself.
23 Q. On the basis of the work that youve done,
24 then, have you concluded that it is the amphibole that
25 causes the pleural peritoneal mesothelioma?
84
1 A. Well, I wouldnt conclude that just based on
2 the work that Ive done, but if — if you look at a
3 combination of work that Ive done, my colleagues like
4 Andrew Churg, who have looked at lung-tissue samples from
5 chrysotile miners and millers from Canada, if you look at
6 the epidemiological studies from chrysotile miners and
7 millers in — in — in Canada, and you look at what we know
8 about exposures to chrysotile asbestos that have little or
9 no tremolite contamination, in looking at all that
10 information together then it — it would appear that the
11 best information we have currently is its probably the
12 tremolite contaminant thats causing the mesothelioma in
13 the human cases where that occurs.
14 Q. And the last slide, Doctor, is a — what is
15 this a picture of?
16 A. This is just an — an artists diagram
17 rendering of — of what the mesothelium is like, and — and
18 it explains why I believe that — that chrysotile exposure
19 does not cause or contribute to peritoneal mesotheliomas.
20 And what it shows, each one of those little
21 square or — or rectangular structures that has a — a gray
22 oval in the center, it represents a mesothelial cell. So
23 you can think of the — of the mesothelium as being an
24 infinite sheet of mesothelial cells. And if you divide it
25 by the diaphragm going right down the middle, the red bar,
85
1 then on the right side is the peritoneal mesothelial and on
2 the left side is the pleural mesothelial.
3 And we know that — that mesothelioma follows
4 a dose-response relationship to asbestos, so the more
5 asbestos youre exposed to the more likely you are to get a
6 cell become a cancer cell and develop into a mesothelioma.
7 So if you had sprinkled asbestos evenly over
8 this in — infinite sheet, then it would be random as to
9 whether or not a cell on the peritoneal side or the pleural
10 side became a malignant cell and developed into a
11 mesothelioma. It would be just as likely to happen on –
12 on one side of the red bar as it does on the other. And
13 the transformation is indicated by a cell which is now blue
14 with a black oval in the middle and sort of red spikes
15 around it. Thats a cell which has now become a malignant
16 cell.
17 But in real life it doesnt happen that way
18 with — with — with equal sprinkling of asbestos over the
19 surface. What happens is the asbestos comes in from the
20 respiratory end, through the lungs, works its way out to
21 the pleura, so the pleura gets the first shot at — of the
22 mesothelial lining of the asbestos youre exposed to, and
23 then the — the peritoneum is like the — like the — the
24 poor stepchild. It gets the leftovers. And so it gets
25 much less of a dose to the peritoneum than you get to the
86
1 pleura.
2 And as we saw for — on the previous slide,
3 its unusual for you to get enough tremolite to the pleura
4 for it to be the cause of a mesothelioma in — in humans.
5 It only happened three percent of the time. And based on
6 our experience, you just never get enough chrysotile
7 contaminated with low levels of tremolite into the lung to
8 get enough tremolite into the peritoneal cavity to cause
9 mesothelioma.
10 So when we actually analyze our lung-tissue
11 samples of our peritoneal cases we find two — one of two
12 things. Either — either they have normal background
13 amounts of asbestos so theyre idiopathic peritoneal
14 mesotheliomas, spontaneous, unknown cause, or we find
15 increased levels of commercial amphiboles. And if you look
16 at the epidemiology, thats whats associated with
17 peritoneal mesotheliomas is exposure to commercial
18 amphibole fibers.
19 Q. So then on the basis of your work with the
20 tissue that youve identified, animal studies that youre
21 aware of, the epidemiology and other studies done by others
22 available in the literature, do you conclude that amphibole
23 is the cause of mesothelioma, both pleural and peritoneal?
24 A. It is — its the cause of peritoneal
25 mesothelioma. Its the most important and common cause of
87
1 pleural mesothelioma.
2 Q. And with respect to tremolite, which is a
3 contaminant in chrysotile, is — is it a cause of pleural
4 mesothelioma, in your opinion?
5 A. Yes, sir.
6 Q. Is it a cause of peritoneal mesothelioma, in
7 your opinion?
8 A. Not as derived from Canadian chrysotile. At
9 least weve not yet found a case. Were still looking for
10 a case. Nobody has published a convincing case where
11 theyve analyzed lung tissue and found what youd need to
12 find. But in certain circumstances you can get enough.
13 And the example would be the — the Libby miners in Libby,
14 Montana, where the type of the tremolite is present at a
15 much higher contamination level. And its a very nasty
16 form of tremolite, which is very long and thin and looks
17 like the pictures we showed you of amosite and crocidolite
18 asbestos, except that its tremolite. And in — in
19 contrast, the Canadian tremolite tends to be shorter and
20 fatter fibers. So its — its — its less potent in
21 causing disease than the Libby tremolite.
22 And there have been a few peritoneal cases,
23 at least one or two, reported in the — the Libby miners
24 exposed to the vermiculite contaminated with tremolite
25 there. And analyses of their lung-tissue samples show just
88
1 normal levels of tremolite.
2 Q. All right, Doctor. On the basis of the
3 information that you have given us so far, the opinions
4 that you have expressed so far, I want you to assume that
5 between 1963 and 1965 John Picinic was a laborer for a New
6 Jersey contractor, Mitoli (phonetic), who did residential
7 and commercial work, demolition and construction projects,
8 demolition and cleaning, and was exposed to plaster,
9 cement, brick, tape joint compound, and he would be in the
10 vicinity of insulated pipe from time to time. From 66 to
11 67 he worked out of the Passaic local No. 12 cement
12 finisher and plasterer, blick — bricklayers and did
13 essentially the same kind of construction work for
14 different employers. And then from 68 to 76 he worked
15 for LaMarrow (phonetic) where he worked plasterer,
16 bricklayer and cement, but also was exposed to tape joint
17 compound and may have worked in the vicinity of insulated
18 pipe.
19 Do you understand what Ive asked you to
20 assume?
21 A. Yes, sir.
22 Q. Do you have an opinion as to whether or not
23 it was likely that — that the individual, John Picinic,
24 would have been exposed to asbestos as part of his work in
25 construction between 1963 and 1976?
89
1 A. Yes.
2 Q. Do you have an opinion as to whether or not
3 his exposure to asbestos during that period of time caused
4 his peritoneal mesothelioma, which was diagnosed in 2005?
5 A. Thats harder to say for sure because were
6 dealing with a — a peritoneal mesothelioma, and because we
7 dont have any markers of asbestos exposure, like pleural
8 plaques and asbestosis. But based on the study we
9 published of the 1,445 cases where we found increased rates
10 of mesothelioma among construction workers, and it was the
11 third most important trade in terms of numbers of
12 mesotheliomas that we examined, the only ones being more
13 were shipyard workers and working in the U. S. Navy or
14 Merchant Marine, and recognizing that when we analyzed the
15 lung-tissue samples of these construction workers we found
16 elevated levels of amosite in most of the cases, then all
17 that put together would make me think that more likely than
18 not then Mr. Picinics peritoneal mesothelioma probably is
19 related to his occupational exposure to asbestos.
20 Q. Based on the facts that Ive asked you to
21 assume, the information that you know and youve described
22 to the jury, do you have an opinion to a reasonable degree
23 of medical certainty whether or not Calidria, that is the
24 Union Carbide Corporation asbestos, contributed to Mr.
25 Picinics mesothelioma?
90
1 A. Yes.
2 Q. What is your opinion?
3 A. I believe it did not. Did not.
4 Q. Doctor, Im going to show you a recent
5 article, which was published in 2008, I believe, marked
6 Exhibit 2183, and ask you if youre familiar with this
7 article.
8 A. Yes, sir, I am.
9 Q. And was this published in a learned treatise?
10 A. Yes.
11 MR. TERRY: Your Honor, we request permission
12 to use Exhibit 2183 as a learned treatise under Rule of
13 Evidence 803 C 18?
14 MR. ROSEN: No objection.
15 THE COURT: Okay.
16
17 BY MR. TERRY:
18 Q. Can you explain to the jury what this shows?
19 A. Well, this was an article actually from –
20 from Greece in which they were looking at occupational
21 exposure to relatively low doses of what they also call
22 relatively pure chrysotile over a 39-year study. And they
23 looked at a plant that in — included several hundred
24 workers, I think 317 total workers, over that 39-year
25 period. And they found no cases of — of mesothelioma and
91
1 no increased risk of lung cancer from the exposure to
2 asbestos. They did find some increased risk of lung cancer
3 in the group overall that they related to their smoking
4 history in comparing it to a — a controlled population.
5 So basically what they con — concluded is –
6 they wrote this paper because in 2005 the European Union
7 had banned the use of chrysotile through many — throughout
8 many European countries, and they wrote this article to
9 show that in their opinion if youre able to control the
10 levels of chrysotile to low levels in the workplace that –
11 that you could use it in a way that was unlikely to cause
12 disease.
13 Q. Is the results of that study — or are the
14 results of that study consistent with your own body of
15 knowledge in terms of whether or not pure chrysotile can
16 cause or contribute to cause mesothelioma?
17 A. Yes. If you get — if you get down to
18 certain levels of cumulative exposure, low enough levels of
19 cumulative exposure, the rates of mesothelioma in those
20 groups is not going to be detectably different from that of
21 a background population with no known exposure to asbestos.
22 Q. Now, in terms of the facts that I asked you
23 to assume with respect to Mr. Picinic, the work that he did
24 between 1963 and 1976, I was not able to identify any
25 product that he was exposed to other than Georgia-Pacific,
92
1 or did not other than Georgia-Pacific.
2 Do you, as a pathologist, practicing as you
3 do, located as you are in North Carolina, have personal
4 knowledge of what he would have been exposed to in terms of
5 products or product types?
6 MR. ROSEN: Objection. May I see the Court
7 at side-bar?
8
9 (The following side-bar conference took
10 place out of the hearing of the jury:)
11
12 MR. ROSEN: My — my objection is that mainly
13 this line of inquiry is beyond the scope of his report. I
14 believe its beyond the scope of his expertise. And also,
15 frankly, Ive not been advised of him coming in to talk
16 about the products obtained (inaudible). So Im objecting
17 for those two reasons.
18 THE COURT: Since I havent seen his report
19 in order to evaluate the objections of the –
20 MR. TERRY: I will tell you, Your Honor,
21 frankly, that it is not in his report. The only reason I
22 went into it is because (inaudible) attend his deposition.
23 THE COURT: I am going to sustain the
24 objection. I — at least from what you presented as his
25 expertise it does not seem to be in the area of his
93
1 expertise. And if its not in his report, its outside the
2 scope.
3 MR. TERRY: Well, can I ask him if he knows?
4 That was the question. Do you know.
5 MR. ROSEN: I would — I can –
6 THE COURT: I — I think thats outside of
7 the scope of his testimony as it was presented in court.
8 So, no, Im not going to allow that.
9 MR. TERRY: All right.
10
11 (The following took place in open
12 court:)
13
14 BY MR. TERRY:
15 Q. Dr. Roggli, in reaching the opinion that you
16 expressed to the jury that you believe Mr. Picinics
17 peritoneal mesothelioma was related to his work in the
18 construction trade or business, do you base that on your
19 general knowledge of the risks or hazards to people who
20 work in the construction business or do you base it on
21 personal knowledge that you have about what Mr. Picinic
22 would have worked with or used?
23 MR. ROSEN: Same objection.
24 THE COURT: (Indicating.)
25
94
1 (The following side-bar conference took
2 place out of the hearing of the jury:)
3
4 MR. TERRY: (Inaudible.)
5 MR. ROSEN: The first thing, Your Honor, he
6 already answered this question. He said he based it on his
7 study. And thats legitimate. I didnt object to that
8 because I think thats legitimately within his scope,
9 within his report. But now were trying to get in through
10 the back door what we cant get in through the front.
11 THE COURT: I — you know, I — Im really
12 confused about whats going on here. Maybe I havent been
13 paying attention. It is clear that there is testimony that
14 he used products (inaudible).
15 MR. TERRY: Correct.
16 THE COURT: I thought there was.
17 MR. ROSEN: Theres speculation about it, but
18 I dont agree with that at all. I mean, I think –
19 THE COURT: Well, he used –
20 MR. TERRY: And theres –
21 THE COURT: Well, theres no question that he
22 used products that were used in Canadian chrysotile,
23 correct?
24 MR. ROSEN: Well, Georgia-Pacific. And in
25 joint compound theres something else.
95
1 THE COURT: Well, lets just take the
2 Georgia-Pacific. The Georgia-Pacific product was composed
3 of at least in part or entirely asbestos from Canada.
4 Theres been testimony in this case that all of that was
5 contaminated with tremolite.
6 MR. ROSEN: Right.
7 THE COURT: Okay. So we know that.
8 MR. ROSEN: Right.
9 THE COURT: Now, I dont — you know, I — I
10 probably have read some of the things in this case. Is
11 there going to be testimony about other types of products
12 that he used that were known to have amosite?
13 MR. TERRY: Thats the problem. We cannot,
14 because theres been so little information about what he
15 used. We can only identify the class of the products. So
16 we can say our industrial hygienist has done some research
17 and said that it implies some of it did. Im trying to
18 inoculate — frankly, the point of the question is to
19 inoculate him against cross-examination without pretending
20 that he knows what he was exposed to. Thats the only
21 purpose of the question.
22 MR. ROSEN: Ill be honest with you. I just
23 missed you there. Im not even — I think — I think you
24 may be overthinking it, frankly.
25 THE COURT: Let me just say this: There were
96
1 questions in the deposition concerning what he personally
2 knew, so you are doing this to –
3 MR. TERRY: Inoculate him.
4 THE COURT: Well, as long as you dont ask –
5 theyre not — Im not going to let them start to know what
6 — ask what he personally knows.
7 MR. ROSEN: Again, I mean, what he personally
8 knew about what?
9 MR. TERRY: Well, there — there was a series
10 of questions asked by your attorney at the deposition that
11 said, Do you have any evidence that he was exposed to
12 insulation containing amosite?
13 MR. ROSEN: Right.
14 MR. TERRY: Im just asking what he was
15 exposed to (inaudible) he worked construction. So this is
16 an attempt to make that clear.
17 MR. ROSEN: (Inaudible) just dont even ask
18 him those if were going to go through this crazy line of
19 questioning. And if youre not going to get into it, shes
20 sustaining the objection, and I dont plan on asking those
21 questions –
22 MR. TERRY: Sure.
23 THE COURT: And if you did, then probably –
24 MR. ROSEN: — and open that door. If I say
25 Im not going to do something, Im not.
97
1 MR. TERRY: Okay.
2 THE COURT: Okay. Lets go.
3
4 (The following took place in open
5 court:)
6
7 BY MR. TERRY:
8 Q. Dr. Roggli, I apologize.
9 In terms of the facts that I have asked you
10 to assume, I have asked you to assume as true that Mr.
11 Picinic was exposed to Calidria supplied by the Union
12 Carbide — Carbide Corporation as a component of
13 Georgia-Pacific tape joint compound that he did in fact use
14 between 1970, 1976.
15 Do you understand Ive asked you to assume
16 that fact to be true?
17 A. Yes, sir.
18 Q. Assuming that fact to be true, do you have an
19 opinion to a reasonable degree of medical certainty whether
20 or not that exposure caused or contributed to cause the
21 peritoneal mesothelioma that Mr. Picinic had?
22 A. Yes.
23 Q. What is your opinion?
24 A. In my opinion, it did not.
25 MR. TERRY: Thank you, sir.
98
1 I pass the witness, Your Honor.
2 THE COURT: All right. Since it is ten after
3 12 and there was no morning break, why dont we take our
4 lunch break now. And if you could be back at 1:15, that
5 would be great. And if you would leave your pads here and
6 dont talk about the case. Thank you.
7
8 (Whereupon, the jury exited the
9 courtroom.)
10
11 THE COURT: Okay. See you at 1:15.
12
13 (Luncheon recess)
14
15 THE COURT: Okay. Thank you, everyone. Be
16 seated.
17
18 (The witness resumed the stand.)
19
20 MR. ROSEN: May I proceed, Your Honor?
21 THE COURT: Yes, sir.
22 MR. ROSEN: Thank you.
23
24
25
99
1 CROSS-EXAMINATION
2
3 BY MR. ROSEN:
4 Q. Dr. Roggli, I just want to ask you — start
5 off by asking you some questions about your opinions.
6 Is it your opinion that chrysotile asbestos
7 uncontaminated by any amphibole does not cause peritoneal
8 mesothelioma?
9 A. Yes, sir.
10 Q. Okay. And youve testified to that before;
11 is that correct?
12 A. Yes, sir.
13 Q. This isnt the first time youve said that in
14 a courtroom or at a deposition or in a report; is that
15 correct?
16 A. Thats correct.
17 Q. Okay. And its not just limited to what
18 youre calling Calidria asbestos? Its all uncontaminate
19 — what you call uncontaminated chrysotile asbestos; is
20 that correct?
21 A. Correct.
22 Q. Are you familiar with the — the Carey
23 mine –
24 A. Yes, sir.
25 Q. — in Canada?
100
1 A. Yes, sir.
2 Q. Is that — thats a — a
3 Johns-Manville-operated mine. Am I correct about that?
4 A. I dont know who operated it. I — I — I
5 know that — that the Carey — lets see. I forget what
6 the corporation was that — that followed, but Celotex, I
7 think, and Carey got their asbestos from there.
8 Q. Celotex is the product that was using Carey
9 asbestos in it; is that correct?
10 A. I believe so, yes, sir.
11 Q. And — and youre of the opinion that that
12 asbestos, that Canadian chrysotile asbestos, cannot cause
13 peritoneal mesothelioma; is that correct?
14 A. Yes, sir, thats correct.
15 Q. And youve offered that opinion before in the
16 past in litigation; is that correct?
17 A. Yes, sir.
18 Q. I guess you were retained by Celotex and you
19 came to that conclusion; is that correct?
20 A. No. I think — I dont think that that issue
21 has — has come up before Celotex went into bankruptcy,
22 that I recall at least.
23 Q. Okay. I — I stand cor — and — and that
24 may be my mistake. I apologize.
25 But my point is this: You — as long — in
101
1 your opinion at least, as long as its uncontaminated
2 chrysotile, that will not cause peritoneal mesothelioma.
3 That — thats correct, right?
4 A. Thats true.
5 Q. All right. And weve been hearing the term
6 Calidria being used. Calidria is not a scientific name for
7 a type of asbestos; isnt that correct?
8 A. Right. My understanding is its a location
9 of the deposit. Yes.
10 Q. Isnt it true what Calidria really is its a
11 brand — Im sorry, its a brand name? I mean, its what
12 UCC calls its asbestos from the Id — from New Idria and
13 California. It calls it Calidria.
14 A. Yes, sir.
15 Q. Is that fair to say?
16 A. Yes, sir.
17 Q. And that Calidria asbestos is mined from an
18 asbestos lode I guess you would call it thats located in
19 California; is that correct?
20 A. Thats correct.
21 Q. And its not the only asbestos mine that
22 exists in that lode; is that correct?
23 A. Correct. Thats also correct.
24 Q. Right. There is — well, there are several
25 other mines run by other companies thats in that location,
102
1 all in the same vein of asbestos; is that right?
2 A. Two that — two that Im aware of besides
3 Union Carbides mine, yes, sir.
4 Q. Is Atlas one of them?
5 A. Atlas. Yes, sir.
6 Q. Whos the other one, because Im not
7 familiar?
8 A. Johns-Manville.
9 Q. Johns-Manville.
10 A. Yes, sir.
11 Q. Okay.
12 Now, youre also of the opinion that
13 chrysotile asbestos thats uncontaminated with amphiboles
14 can cause under certain circumstances pleural mesothelioma;
15 is that correct?
16 A. Not quite. It can — I think it can in
17 experimental animals, but in — in humans I think that the
18 best evidence that we have for mesothelioma caused by
19 chrysotile dust is that its due to the tremolite
20 contaminant.
21 Q. Maybe I mis — and I apologize, maybe I
22 misheard you, but I thought you testified on direct
23 examination that chrys — uncontaminated chrysotile can
24 cause pleural mesothelioma, but only with very large doses.
25 I thought that was your testimony.
103
1 A. No. What I think was — what I mean to say
2 or meant to convey is that Canadian chrysotile contaminated
3 by tremolite can under certain circumstances cause pleural
4 mesothelioma.
5 Q. Is it your — what Im trying to understand
6 is — let me ask it this way: Are you saying that a
7 chrysotile fiber — if enough chrysotile fibers come in
8 contact with a certain area of the peritoneum or the pleura
9 that — that they cannot physically cause the disease, or
10 are you saying that enough dont reach the area to
11 physically cause the disease?
12 A. The — the — the latter, not enough of the
13 — of the long enough fibers reach the area and stay there
14 in a — in a — in a high enough dose for a long enough
15 period of time to cause the disease in humans.
16 Q. Okay. So just — just so its clear, and I
17 thought thats what you were saying, you described on
18 direct examination con — what we do know or what we think
19 we know about how the fibers come in contact with the cells
20 or come near the cells and start that process that causes a
21 — a — a tumor either in the pleura or the peritoneum.
22 A. (Moved head up and down.)
23 Q. But youre not saying that the chrysotile
24 fiber is incapable of starting that process. What youre
25 saying is that we dont see enough fibers of a sufficient
104
1 length getting there to start the process. Thats your
2 opinion, correct?
3 A. And staying there for a long enough period of
4 time. Thats correct, yes, sir.
5 Q. Okay. And the reason I asked that is, and I
6 dont know if its any relevance, but we see pictures of
7 the nice, soft, serpentine chrysotile fibers versus the
8 hard, stiff other fibers, but in terms of being able to
9 start the cancer and cause the cancer — Im not talking
10 about getting there long enough and persisting long enough,
11 but in terms of being able to actually physically start the
12 cancer, chrysotile fibers can, just as amphibole fibers
13 can, if you get enough of them there and they stay long
14 enough?
15 A. Yes. For example, in — in — in certain
16 types of experimental animal studies. Thats correct, yes,
17 sir.
18 Q. Okay. Now, I know you discussed this a
19 little bit on direct, but I just want to kind of go back
20 over this a little bit if I could. Youve heard the term
21 signature disease; is that correct?
22 A. Yes, sir.
23 Q. And mesothel — youve said mesothelioma is a
24 signature malignancy, signa — signature disease; is that
25 correct?
105
1 A. Yes, sir.
2 Q. And I believe that means that its an
3 epidemiological marker for exposure to asbestos. Isnt
4 that correct?
5 A. Thats correct.
6 Q. When we say an epidemiological marker what do
7 we mean by that?
8 A. Well, in — in epidemiologies youre looking
9 at large — epidemiology studies youre looking at large
10 numbers of individuals. So that in situations where you
11 may have an occasional individual case thats not
12 asbestos-related thats going to — thats going to be
13 averaged out over the studies. So that in terms of looking
14 at large numbers of cases, if you see a mesothelioma then
15 thats an indication of — of — of exposure. It doesnt
16 mean that every mesothelioma that shows up is related to
17 exposure, but it means when you see a mesothelioma thats
18 one of the first questions that a physician will ask about
19 is, was there a history of significant exposure to asbestos
20 because of that strong association.
21 Q. Now, we know that asbestos exposure is the by
22 far main cause of mesothelioma; is that correct?
23 A. Yes, sir.
24 Q. What are the other known causes of
25 mesothelioma?
106
1 A. Well, I think theres a — a — a — a few
2 that are acceptable based on the scientific information
3 available. One is a type of fiber which is not asbestos
4 called erionite, its a form of zeolite, for which
5 exposures to this type of fiber in — in areas in Turkey
6 has been associated with epidemics of mesothelioma. But to
7 date nobody has published a case in North America that has
8 been related to exposure to erionite.
9 The other acceptable cause I think — I know
10 one other acceptable cause is — is therapeutic doses of
11 radiation, that if you radiate — radiation is a known
12 carcinogen to many different body cells, and its been
13 shown if you get high enough doses of radiation to the
14 pleura or peritoneum then some patients many years later
15 theyll develop a mesothelioma in that same location.
16 And the last one which I think is acceptable,
17 but its associated with very few cases, is — is
18 long-standing, smoldering infections in the pleural or
19 peritoneal cavity.
20 Q. And based upon those three other known causes
21 of mesothelioma, and youve reviewed all the medical
22 records and you — I would assume youve reviewed — did
23 you review any testimony in this case as well?
24 A. I dont believe so. Not that I recall.
25 Q. Okay. You dont have any indication that any
107
1 of those other known causes of mesothelioma existed in this
2 case; is that correct?
3 A. Thats correct.
4 Q. However, you do have information that there
5 was asbestos exposure in this case; is that correct?
6 A. Thats correct.
7 Q. Now, getting back to the — the issue of –
8 of a signature disease, would you agree that once a patient
9 is diagnosed with mesothelioma, whether its peritoneal or
10 pleural, one of the first questions to resolve is — is
11 where and when theyre exposed to asbestos; is that
12 correct?
13 A. Yes.
14 Q. And isnt it true that the most reliable way
15 of doing that is by taking a history from the patient, of
16 interviewing the patient?
17 A. Yes, a skilled history in that regard is an
18 important source of that information.
19 Q. In fact, thats — I dont want to drag the
20 document out again, but the — the Hel — Helsinki document
21 that you had, that actually says that, doesnt it?
22 A. Yes, sir.
23 Q. That history is the best way to figure out
24 what the exposure was; isnt that correct, Doctor?
25 A. Its — its the best in the sense that — I
108
1 think that the — the most direct information that you have
2 about a persons exposure is measuring whats in the lung
3 tissue, and thats what Ive done and thats what I do.
4 But for the vast majority of patients thats not available.
5 Lung tissue is not obtained in the case and in most of the
6 cases all we have is — is tumor tissue.
7 And so for that reason Helsinki said that
8 because its so practically and — and — and easily
9 obtainable, but without invasive procedures, that the
10 history of exposure is the most useful, practical piece of
11 information to determine in that regard.
12 Q. All right. So just like we have here, where
13 we dont have lung samples, but we have some tumor samples
14 and we have a history, thats pretty typical of what we
15 see; isnt that right?
16 A. Yes, sir.
17 Q. Okay. Now, would you agree with me, Doctor,
18 that the scientific and medical community has yet to
19 determine a level of exposure to asbestos below which
20 mesothelioma will not occur?
21 A. Yes.
22 Q. And so theres no known threshold for the
23 development of mesothelioma for humans thats been found in
24 the scientific community; is that correct?
25 A. Not thats been identified. Thats correct.
109
1 Q. What we do know is that just in terms of the
2 background ambient air that we all walk in and breathe that
3 — that theres not enough evidence in the scientific
4 community — community to implicate those kind of levels of
5 exposure to say this is the cause of a peritoneal or a
6 pleural mesothelioma; is that correct?
7 A. Thats correct.
8 Q. Okay. Would — would you agree with me that
9 asbestos dust is so strongly associated with mesothelioma
10 that proof of significant exposure to asbestos dust is
11 proof of a specific — of specific causation in any given
12 case?
13 A. I think thats reasonable if you carefully
14 define significant, yes, sir.
15 Q. Okay. Right. Sig — significant in terms of
16 the exposure.
17 A. Right.
18 Q. But in terms of the rest of the sentence that
19 — that — that asbestos dust is so strongly associated
20 with mesothelioma that if you prove significant exposure
21 then youre proving causation in that specific case. You
22 agree with that, wouldnt you?
23 A. Yes, sir.
24 Q. Depending upon what your definition of
25 significant is; is that correct?
110
1 A. Correct.
2 Q. Okay. Isnt it also true that very low
3 levels of exposure to asbestos dust above background have
4 been demonstrated to cause mesothelioma?
5 A. That can occur in some cases. Yes, sir.
6 Q. And theres a difference when we say very low
7 — well, let me ask you this: In your mind, is there a
8 difference when we say very low levels of exposure and
9 significant exposure?
10 A. Well, that — it depends on — on how youre
11 using those terms and how youre defining them. I think
12 that the — the way that Ive used those terms and — and
13 — and have written in the past using those terms what
14 were talking about is very low levels that are significant
15 exposures, exposures that will result in amounts of
16 asbestos in lung-tissue samples if you had them to analyze
17 that are different from a background population.
18 Q. But you have — youve said that before,
19 havent you, that very low levels of exposure above
20 background, above whats in the ordinary air, have been
21 demonstrated to cause mesothelioma; is that correct?
22 A. Yes, sir.
23 Q. Okay. And some examples of that, for
24 example, could be somebody whos a bystander in an
25 occupation? Youre familiar with that term; is that
111
1 correct?
2 A. Yes, sir.
3 Q. For example, if Im a taper and Im using the
4 joint compound and Im sanding the joint compound, then Im
5 the one whos using the product. If Im just another
6 worker who is there at the location and not using the joint
7 compound myself, but Im standing nearby, Im a bystander.
8 Is that a correct definition of the term?
9 A. I think thats fair. Yes, sir.
10 Q. And — and bystanders working around others
11 who use asbestos is an example of what you would call
12 minimal amounts of exposure in an occupational setting that
13 can — that have been shown to cause mesothelioma; isnt
14 that right?
15 A. It can be, but — but bystanders oftentimes
16 are — are significant exposures in terms of theyre
17 breathing the same dust or very close to the same dust as
18 people who are working with the product. So you can get
19 very substantial exposures as a bystander. But you can
20 also have cases where you get relatively low levels from
21 bystanding.
22 Q. Have you ever testified under oath previous
23 to today that the bystanders who have — who are — that
24 bystanders in an occupational setting are examples of
25 minimal amounts of asbestos exposure leading to a
112
1 mesothelioma?
2 A. They can be, yes, sir. I — I mean, I — I
3 think I agree with that, but I would not say — I would not
4 say and I dont think Ive ever said that a bystander
5 exposure is always a minimal or very low level of exposure.
6 Q. Another example of that would be somebody –
7 it could be household contact. Isnt that right?
8 A. Yes, sir. Thats a example of an — of an
9 indirect or what we call paraoccupational exposure to
10 asbestos.
11 Q. And youve called that in the past a minimal
12 amount of asbestos exposure; isnt that right?
13 A. It can be. Yes, sir.
14 Q. And somebody can come home with asbestos in
15 their clothing and their spouse comes in contact with that
16 clothing can develop mesothelioma; is that right?
17 A. Thats correct.
18 Q. Would you agree that mesothelioma has been
19 shown in cases with levels that are just marginally
20 elevated above that, the background population?
21 A. True.
22 Q. Now, when were talking about causation and
23 whether asbestos has caused somebodys mesothelioma, be it
24 peritoneal or pleural, you look at the total dose; isnt
25 that right?
113
1 A. You have to consider the total dose, yes.
2 Q. And its the total dose that you consider
3 when youre deciding whether that — whether that
4 patients, that persons, exposure has caused his
5 mesothelioma; is that right?
6 A. The total dose above background, yes, sir.
7 Q. Right. Okay.
8 But if you find that the total dose is
9 sufficient — and lets leave chrysotile out of the mix
10 because I understand its your opinion that chrysotile does
11 not cause. So lets leave chrysotile out of the mix out of
12 fairness to you. But if you find that the total dose is
13 sufficient to cause the disease, would you agree then that
14 each and every exposure to asbestos that an individual with
15 mesothelioma experienced in excess of background is a
16 substantial contributing factor to the development of that
17 disease.
18 A. Yes, sir.
19 Q. Okay. And just so the jury understands what
20 that means, if Im person A, and Im using, say, a product
21 that has several different — were talking nonchrysotile
22 now, but several different types of asbestos in it, and Im
23 exposed to that. And I use product B, and through my use
24 of product B Im exposed to asbestos over a period of time.
25 And I use product C, and because of my use of product C Im
114
1 exposed to asbestos over a period of time. The first thing
2 that you do is you look at the total dose of all those
3 products, correct?
4 A. Yes, sir.
5 Q. You add them all up, right?
6 A. True.
7 Q. And what you do is you say, Okay, Im looking
8 at this total dose, is this total dose sufficient to cause
9 the disease. Is that right?
10 A. Yes, sir.
11 Q. And if the answer to that question is yes,
12 when youre saying that — now, I want to get this right.
13 When youre saying that — pardon me.
14 When youre saying that each and every
15 exposure that that person has is a substantial contributing
16 factor in the development of the disease that means if Im
17 that person with that total dose, every time Ive used the
18 asbestos product and — and breathed those asbestos fibers
19 in, my breathing those fibers in is a substantial
20 contributing factor to the development of my disease; isnt
21 that right?
22 A. Once you eliminate the — any trivial
23 exposures, that would be true, yes, sir.
24 Q. Right. So when I use product A, every
25 asbestos fiber or every different asbestos fiber in that
115
1 product is a substantial contributing factor to my disease
2 that I develop; is that right?
3 A. Well, its going to depend somewhat on fiber
4 type and fiber length, and all that sort of information,
5 but were — assuming that were talking about commercial
6 amphibole fibers and the fibers are all of sufficient
7 length, then all of the exposures that are — that are
8 substantially above background would be a contributing
9 factor.
10 Q. And that would be true if you were exposed to
11 another product during that same period of time. Your
12 exposure — every time — every single time youre exposed
13 — with the same caveats youve told us, every single time
14 that youre exposed to that other product each time is a
15 substantial contributing factor to your development of that
16 mesothelioma; is that right?
17 A. Yes, sir.
18 Q. All right. And so Mr. Picinic, for example
19 — well, strike that. Strike that.
20 Can sanding joint compound that contains
21 asbestos be dangerous?
22 A. There are circumstances that can occur.
23 Weve actually reported such a case, I believe, that caused
24 pleural mesothelioma.
25 Q. Okay. So that sanding — somebody who is
116
1 undergoing that act, sanding the joint compound, breathing
2 it in, sweeping it up, breathing it in, that can cause
3 mesothelioma, that contact with the asbestos in that
4 fashion; is that correct?
5 A. In sufficient doses, yes, sir.
6 Q. Okay. And isnt it true that you — when
7 youre doing sanding of joint compound in terms of the
8 exposure that you look at, Doctor, that if youre doing it
9 on a home-remodeling, infrequent basis, its unlikely that
10 youre going to get disease, but if you do it as an
11 occupation kind of day in day out that that is going to be
12 dangerous, for lack of a better word?
13 A. Yes, if you can get a — a sufficient
14 cumulative exposure, then you can sufficiently increase
15 your risk that that can be the cause of the disease.
16 Q. And youve made that distinction before in
17 the past, havent you, where youve said, Look, somebody
18 who does this sanding process on — on the joint compound
19 with asbestos fiber in it, if theyre just doing a
20 home-remodeling project theyre not going to have enough
21 exposure, but somebody who does it as an occupation, its
22 what they do for a living, then theyve got a problem
23 potentially; is that correct?
24 A. True.
25 Q. Okay. Somebody like Mr. Picinic, for
117
1 example; is that correct?
2 A. Could be.
3 Q. And in — in terms of the dust levels that
4 are created when you do something like sanding joint
5 compound, are they equivalent — youre familiar with the
6 insulators that were — were studied by Dr. Selikoff?
7 A. Yes, sir.
8 Q. Is — is the amount of — are the dust levels
9 created equivalent to the kind of exposure that we see in
10 the Selikoff insulators?
11 A. I think on — on — on — on what you call an
12 excursion basis, that is the highest levels that can occur
13 during the process, that they can be as high as some of the
14 levels which insulators had exposed, yes –
15 Q. Okay.
16 A. — on some occasions.
17 Q. Weve talked about the potency, the relevant
18 potency, of the different types of asbestos. And you gave
19 some numbers that I think were cited from the two — the
20 Hodgson numbers?
21 A. Hodgson and Darnton? Yes, sir.
22 Q. Hodgson and Darnton.
23 There are other scientists, reputable
24 scientists, who disagree with those numbers; is that
25 correct?
118
1 A. Yes.
2 Q. And other studies that have been shown that
3 disagree with those potency numbers; is that correct?
4 A. There are certainly, yes, some individuals
5 who have looked at the data and come up with different
6 numbers, yes, sir.
7 Q. Okay. Basically, what happens is these
8 individuals use different mathematical models; is that
9 correct? Do you know?
10 A. I dont know if they used different models or
11 not or just — or just used different estimates of what the
12 exposures were. Or however they did it they came up with
13 different ratios.
14 Q. Do you know what some of the other numbers
15 are?
16 A. Well, I — Im familiar with the ones that –
17 that Dr. Doug Henderson relies upon.
18 Q. And what are they?
19 A. And I believe that he thinks that the ratio
20 is closer to about 35 to one, going from crocidolite to
21 chrysotile.
22 Q. And do you know where the amosite falls in
23 that range?
24 A. Somewhere in between, but I dont remember
25 the exact number that he uses for that.
119
1 Q. Are you familiar with the Robinson and
2 Chahinian textbook, the Australian numbers that — that
3 come up as 16 to 14 to one potency ratio?
4 A. Ive seen different numbers come out from –
5 from Australia in — in the past. The — the ones that –
6 the ones that I would rely on in that regard, or at least
7 the ones I would count — call the Australian numbers,
8 would be the most recent publications by Doug Henderson in
9 that regard. And thats a little different from — the
10 numbers you just quoted are a little different from what I
11 saw him quote in 2008.
12 Q. But you would agree that there is debate
13 within the scientific community as to what those numbers
14 are?
15 A. Yeah, theres some disagreement on that.
16 Q. Just like you would agree that there are
17 reputable scientists who disagree with your opinions that
18 uncontaminated chrysotile cannot cause mesothelioma?
19 A. Yes. Theres some who would disagree with
20 that. Yes, sir.
21 Q. Now, you described several ways in which the
22 fiber once its inhaled reaches the peritoneum, and I just
23 want to go over that again briefly with you if you dont
24 mind.
25 A. Sure.
120
1 Q. I believe the one way, the first way you
2 said, was that it goes directly through the diaphragm; is
3 that correct?
4 A. Correct.
5 Q. Okay. So that one way that the fiber once
6 its breathed in can reach the peritoneum is that its
7 breathed into the lungs and enters through the lungs
8 through the diaphragm into the peritoneum directly; is that
9 correct?
10 A. Correct.
11 Q. Okay. A second way is you described a
12 process by which somebody who has breathed the fibers into
13 their lungs have — I shouldnt say into their lungs, has
14 breathed them in, has those fibers expelled in the mucous;
15 is that correct?
16 A. Yes.
17 Q. And then what a person does is swallows the
18 fibers; is that correct?
19 A. Yes.
20 Q. The fibers go down into a persons stomach;
21 is that right?
22 A. Yes.
23 Q. And then directly through the stomach wall
24 into the peritoneum; is that right?
25 A. Yeah. Probably through the intestinal wall
121
1 instead of the stomach wall.
2 Q. Okay. Right.
3 A. Stomach wall is a little bit thick –
4 thicker.
5 Q. Okay. In terms of timing, if Im somebody
6 who is breathing in asbestos fiber and then it comes out in
7 my mucous, is that something that happens right away as
8 soon as I breathe them in?
9 A. If –
10 Q. Do you understand my question because Ill be
11 happy to rephrase it if you dont?
12 A. If you breathe it in how long it takes it to
13 come out and –
14 Q. Yep. Thats right.
15 A. Yeah. Its a matter of the time it takes the
16 — the — the mucociliary escalator to move the mucous
17 upwards and outwards. And thats a matter of hours to
18 days.
19 Q. Okay. Its not a lengthy period of time; is
20 that correct?
21 A. No. Correct.
22 Q. So in other words, it could be anything as
23 short as a couple of hours, any — anything as long as a
24 couple of days, but after Ive breathed those fibers in,
25 theyre brought back out in my mucous and I swallow them
122
1 into my body. Is that right?
2 A. Correct.
3 Q. Do they ever enter my lungs?
4 A. You mean reenter the lungs after you swallow
5 them?
6 Q. Have they — have they ever entered my lungs
7 before I swallowed them? In other words –
8 A. Oh, sure. They — I mean, we define lungs as
9 including the — the parenchyma where gas exchange takes
10 place, but also the conducting airways that take the — the
11 bronchi that take air from the windpipe to — to these
12 alveoli in the lung where gas exchange takes place. And
13 its those airways that are lined by the mucous.
14 So the fibers that come up and that — that
15 are embedded in the mucous would get as far as the airways
16 of the lung, but not all the way out to the alveolar level.
17 Q. Can a chrysotile fiber get into the
18 peritoneum?
19 A. Sure.
20 Q. And I guess its your opinion that it gets
21 into the peritoneum through one of the two ways youve just
22 discussed; is that correct?
23 A. Yes, sir.
24 Q. Can more than one chrysotile fiber, if
25 somebody breathes in asbestos, get into the peritoneum?
123
1 A. Yes.
2 Q. So some quantity of chrysotile fiber can make
3 its way into a human peritoneum. That — theres no
4 question about that; is that correct?
5 A. I think thats — that would be a reasonable
6 conclusion, that can occur.
7 Q. Now, how long in terms of time can it take
8 for a chrysotile fiber to get, say, from the lungs into the
9 peritoneum?
10 A. Well, the transit time for — through the GI
11 tract is usually a matter of days, a few — very few days.
12 So what youre talking about is from the time it gets –
13 you swallow it until the time it burrows through the wall
14 into the intestinal tract is a matter of days.
15 Q. And how about when you breathe it in and it
16 goes through your diaphragm?
17 A. That would be the same thing, a matter of
18 days.
19 Q. So that — I want to make sure I understand
20 this. So Im breathing in as — asbestos fibers, say its
21 chrysotile fibers, into my lungs. And youre saying that
22 within a matter of days it can reach my peritoneum; is that
23 correct?
24 A. Probably, yes, sir.
25 Q. Have — chrysotile fibers, have you done
124
1 studies in animals where youve followed what happens to
2 those fibers in animals once theyre breathed in, in the
3 lungs?
4 A. What happens to them in the lungs, yes, sir,
5 we have.
6 Q. And have you found that those fibers, those
7 chrysotile fibers, after a period of about a year have
8 split up into thinner fibers but remained long?
9 A. It takes much less than a year to do that.
10 Weve — weve — were — were able to demonstrate that
11 within a month after exposure. Actually, the process
12 begins probably within a week after exposure.
13 Q. Do you recall — and I know this is a while
14 ago, but do you recall testifying in a case Lawson vs. H.
15 K. Porter Company?
16 A. Sounds — I mean, it has been a long time.
17 Its –
18 Q. Yeah. Its 1990. I know its been a long
19 time.
20 A. The name sounds vaguely familiar.
21 Q. Okay. You know, maybe…
22 Let me mark this as Plaintiffs 220. Im
23 really only going to ask you right now about one particular
24 page, which is 129, but let me — let me show it to you.
25 May I approach, Your Honor?
125
1 THE COURT: Certainly.
2 MR. ROSEN: Would you get that on the Elmo,
3 please? Thank you.
4 THE WITNESS: Uh-huh. Okay.
5
6 BY MR. ROSEN:
7 Q. Do you recall this deposition?
8 A. I recall that it happened.
9 Q. Okay. This — this is a — looks like a
10 deposition in Durham, North Carolina. Is this where your
11 office was at the time?
12 A. Yes, sir. Ive been in Durham since 1980, so
13 this was in Durham.
14 Q. Okay. The dates October 19th, 1990; is that
15 correct?
16 A. Yes, sir.
17 Q. Im going to — I want you to go to page 129.
18 Theres a question at the top.
19 Can everybody read that?
20 AN UNIDENTIFIED SPEAKER: (Inaudible).
21 MR. ROSEN: Okay. You — thats good.
22
23 BY MR. ROSEN:
24 Q. That — its the first question in the –
25 first answer, actually.
126
1 You were asked the question: And in your rat
2 studies with regard to chrysotile, after a longer period of
3 time what effect did you find with regard to whether or not
4 the long fibers break down over time into short fibers, the
5 chrysotile fibers?
6 Is that accurate in terms of the question you
7 were asked at that time?
8 A. Yes, sir.
9 Q. And your answer: Well, in our studies we
10 followed the animals up to a maximum period of one year,
11 and at that point in time we found that the chrysotile
12 fibers, the long chrysotile fibers, split into fibers that
13 remained long but have a very thin diameter.
14 Do you recall — was that the answer that you
15 gave, part of the answer that you gave?
16 A. Yes.
17 Q. And then just to read the rest of it: We
18 didnt follow our studies out beyond the year, but there
19 have been other researchers who have studied the question
20 in guinea pigs and followed them out for two years, and
21 they found the same thing that we did up to one year in the
22 rats. But if you follow them for an additional year, they
23 found that the chrysotile breaks up further into smaller
24 fibers, and that the percentage of short fibers is greatly
25 increased at two years, and that — and that then could
127
1 apparently be cleared from the lung because of the short
2 nature of the fibers.
3 Is that your full and complete answer that
4 you gave?
5 A. It is.
6 Q. Okay. So correct me if Im wrong, Im sure
7 you will, but it seems as though youre testifying under
8 oath — you were under oath here on this day; is that
9 correct?
10 A. Yes.
11 Q. And it seems as though what youre testifying
12 back in this Lawson deposition is that you did rat studies,
13 you followed the fiber in the lungs, that for a period of a
14 year — a year they remained in the lungs, split up and
15 became longer, thinner fibers, after which you know through
16 other studies that they break down into smaller fibers.
17 Isnt that what you testified to?
18 A. Yes. Thats actually about — talking about
19 a combination of studies. The one that I did with Dr.
20 Brody most of the rats were followed out for three months.
21 I dont think we followed any out for six months. Dr.
22 Pinkerton did some studies where they followed them out as
23 far as a year. And — and we, actually, within a month
24 were able to demonstrate, and I think even before that,
25 that the fiber diameter was starting to go down and
128
1 continued to go down. And — and as far out as a year in
2 the Pinkerton studies they did find the fib — thin fibers
3 still present at that time.
4 Q. You were under oath at this deposition; is
5 that correct?
6 A. Yes.
7 Q. Okay. And correct me if Im wrong, but what
8 you said under oath was, Our studies followed the animals
9 up to a maximum period of one year, and at that point in
10 time we found that the chrysotile fibers, the long
11 chrysotile fibers, split into fibers that remained long but
12 have a very thin diameter.
13 Isnt that what you have testified to back at
14 that deposition?
15 A. Yeah.
16 Q. Was that incorrect?
17 A. No. The — when I said our studies, I was
18 including the entire laboratory, which is Dr. Brody, who I
19 was working with, and Dr. Pinkerton, who wasnt working
20 with me but who was working with Dr. Brody.
21 Q. Are the most — is it recognized that the
22 most carcinogenic fibers are the ones that are longer and
23 thinner?
24 A. The ones that are most carcinogenic are the
25 ones that have the highest aspect ratio; that is, the
129
1 length-to-diameter ratio.
2 Q. Right. In other words, the longer a fiber
3 is, that can make it — that can make the aspect ratio
4 larger; is that correct? If you increase the length youre
5 increasing the aspect ratio — ratio, everything else being
6 equal, right?
7 A. Yes. Correct.
8 Q. And if youre decreasing the diameter, again
9 all — everything else being equal, again you are
10 increasing the aspect ratio; is that correct?
11 A. Thats true.
12 Q. So its true that longer and thinner fibers
13 tend to have the greatest aspect ratio; isnt that correct?
14 A. Thats true.
15 Q. Which means theyre the most carcinogenic; is
16 that correct?
17 A. Thats true.
18 Q. And if you have a fiber thats remaining in
19 the lung in the first year and its getting thinner, the
20 aspect ratio is increasing; isnt that correct?
21 A. As long as the length stays the same and the
22 diameter is decreasing, the aspect ratio is increasing.
23 Thats correct.
24 Q. Which makes it more carcinogenic; is that
25 correct?
130
1 A. Theoretically, yes, sir.
2 Q. And its your testimony that it takes a
3 matter of days for the fiber to get into the peritoneum or
4 — or the pleura; is that correct?
5 A. Yes, sir.
6 Well, actually, the studies we did showed
7 that if you let the rats breathe in dust for three weeks
8 and then you washed out the pleural cavity, we found long
9 fibers to be present within ten days after the last
10 exposure.
11 Q. Youve told the jury today your opinion that
12 — Im sorry.
13 You — you — youve told the jury today your
14 opinion that — that uncontaminated chrysotile asbestos
15 does not cause, cannot cause, peritoneal mesothelioma; is
16 that right? Correct?
17 A. In humans, thats correct, yes, sir.
18 Q. Right. Okay.
19 You have not always held that opinion; is
20 that correct?
21 A. Thats probably true.
22 Q. When you say thats probably true, what do
23 you mean by its probably true? Isnt it true?
24 A. In 1997 I did studies with one of the fellows
25 in my laboratory where we analyzed the lung-tissue samples
131
1 from our peritoneal mesothelioma cases, and I think thats
2 really the first time that we became aware that there were
3 no cases in which chrysotile or tremolite was the only
4 elevated fiber type in the lung-tissue samples of those
5 patients. So — and then in looking at the literature on
6 epidemiology I found that our findings were consistent with
7 epidemiological information.
8 So I think from that point forward its
9 unlikely that I would have testified that chrysotile
10 contributes to peritoneal mesothelioma.
11 Q. So before that period of time, obviously, you
12 were still involved in litigation, correct?
13 A. True.
14 Q. So I — so when you say probably, what was
15 happening was you were offering your opinion in cases
16 before nineteen ninety — Im sorry, 6 or 7, I want to be
17 accurate. Was it 96?
18 A. 97.
19 Q. Ninety — so before 1997 you were offering
20 your opinion that, in fact, people who were exposed to
21 chrysotile asbestos and only chrysotile asbestos and
22 developing per — peritoneal mesothelioma, that the
23 asbestos exposure caused the mesothelioma; isnt that
24 right?
25 A. Correct.
132
1 Q. And you did that in courtrooms; isnt that
2 right?
3 A. True.
4 Q. And you did that in depositions; isnt that
5 right?
6 A. True.
7 Q. And juries just like this one who are
8 sitting in the box here in this courtroom listened to your
9 testimony and possibly relied on your testimony; isnt that
10 right?
11 A. True.
12 Q. And youre here today and youre saying the
13 exact opposite thing; isnt that right?
14 A. Im saying that science moves on. We learn
15 things as — as time moves along.
16 Q. So I guess the answer to my question is yes,
17 youre here in this courtroom in front of a different jury
18 saying the exact opposite thing; isnt that true?
19 A. Well –
20 MR. TERRY: Objection. Argumentative.
21 MR. ROSEN: I dont believe he answered my
22 question, Your Honor.
23 THE COURT: I believe that he answered it
24 already.
25 MR. ROSEN: Fine. I will move on, Your
133
1 Honor. Thank you.
2
3 BY MR. ROSEN:
4 Q. Now, in those other cases, Doctor, when you
5 rendered your opinion you didnt just say, Its my opinion.
6 You said, Its my opinion to a reasonable degree of
7 scientific certainty. Isnt that correct?
8 A. True.
9 Q. What does that mean when you say — when you
10 come into a courtroom and tell a jury that you have an
11 opinion to a reasonable degree of scientific certainty?
12 What do you mean by that?
13 A. It means more likely than not that thats –
14 to the best of our information, thats the correct answer.
15 Q. Is that what — when you gave all your
16 opinions today in this court about chrysotile and whether
17 only chrysotile can cause mesothelioma and you said to a –
18 to a reasonable degree of medical certainty, is that what
19 you meant to this jury, that youre saying its more likely
20 than not?
21 A. Yes.
22 Q. Now, your changing your opinion in 1997 about
23 chrysotile asbestos and — and mesothelioma, that was based
24 at least initially on your studies that youve talked about
25 on direct examination here; is that correct?
134
1 A. Yes.
2 Q. And those are the studies that you did
3 looking at lung tissue of people who had died from
4 mesothelioma; is that right?
5 A. Yes.
6 Q. So — and you were the one who looked at the
7 lung tissue, is that right, yourself?
8 A. Correct.
9 Q. Okay. Now, when youre looking at the lung
10 tissue of somebody whos had mesothelioma, theres a
11 latency period. Weve all heard about that. Is that
12 correct?
13 A. Thats correct.
14 Q. So some of these people when youre looking
15 at their lungs to see whats in their lungs, youre really
16 looking at whats in their lungs 20, 30, 40 years after
17 they actually had the exposure to asbestos that led to
18 their disease; is that right?
19 A. True.
20 Q. When you look at the lungs you use a
21 microscope — Im sorry. My mistake.
22 When you look at the lung tissue you use a
23 microscope; is that right?
24 A. Yes.
25 Q. Okay. And you used a microscope; is that
135
1 right?
2 A. Yes.
3 Q. And you chose the microscope that you used;
4 is that correct?
5 A. Yes.
6 Q. The lung tissue that you looked at — when
7 you say lung — lung tissue, do you mean to tell the jury
8 that youre actually looking at the — the pleural tissue
9 where the disease was?
10 A. Were looking at — in our lung-tissue
11 analysis were looking at lung tissue which includes a
12 small amount of pleural tissue where the — because were
13 looking at the outer portion of the lung.
14 Q. A small amount of the pleural tissue. You
15 mean that most of the tissue that youre looking at is not
16 the pleural tissue?
17 A. Right. 99 percent of its lung tissue, not
18 pleural tissue.
19 Q. Do you look at any peritoneal tissue?
20 A. Weve done that sporadically, but not
21 systematically.
22 Q. I — Im talking about your study that caused
23 you to change your opinions. Did you look at any perit –
24 were you looking at any peritoneal tissue in that study?
25 A. Not — not in a — a systematic way, no.
136
1 Q. And the pleural tissue — Im sorry. The –
2 the — and the lung tissue that you were looking at in that
3 study, 99 percent of it was not pleural tissue; is that
4 correct?
5 A. Thats correct.
6 Q. And, obviously, when you — when you contract
7 the cancer, the disease mesothelioma, its caused by the
8 fibers that reach the pleura or the peritoneum; is that
9 right?
10 A. Thats true.
11 Q. But you werent looking at that particular
12 tissue other than the one percent of the 99 percent of the
13 lung tissue; is that right?
14 A. We didnt do that. Other people have done
15 that, but we did not.
16 Q. Im talking about your studies that caused
17 you to change your mind. I want to — Im — Im asking
18 you about that. You did not do that; is that correct?
19 A. Thats true.
20 Q. Now, a lot of your findings in these studies
21 that caused you to change your mind were based on the fact
22 that you werent finding chrysotile fibers in the lung
23 tissue or the amount of chrysotile fibers that you were
24 finding in the lung tissue; is that right?
25 A. Or the tremolite fibers, which would be the
137
1 marker of past chrysotile exposure.
2 Q. Right. Now — and — and just so its clear
3 to the jury, when — for example, the tables that we saw
4 that you were testifying about, the bar graphs, those are
5 all data from your studies, is that right, that were
6 talking about now?
7 A. Thats correct.
8 Q. Okay. Now, the type of microscope that you
9 were using to do your study was a scanning electron
10 microscope; is that correct?
11 A. Since 1980, thats correct, yes, sir.
12 Q. Well, when you say since 1980, I want to make
13 sure its clear to the jury. The study that were talking
14 about, the studies that you did that caused you to change
15 your mind, you were using a scanning electron microscope;
16 is that right?
17 A. Correct.
18 Q. Okay. And scanning electron microscopes, I
19 — I would assume that you can set it at a different
20 magnification level? You can choose your magnification
21 level of that microscope, or am I wrong?
22 A. Yes, you can. Its almost a continuous
23 variable. You can just turn the dial and increase your
24 focus, increase your magnification, as much as you want, up
25 to the limitation of the instrument.
138
1 Q. Okay. And your setting for the scanning
2 electron microscope was what? Do you recall?
3 A. For our — our scanning magnification, that
4 is for looking at the samples, would be 1,000 X
5 magnification.
6 Q. 1,000 X means youre making it a thousand
7 times bigger –
8 A. Right.
9 Q. — is that right?
10 A. Correct.
11 Q. Now, asbestos as — as weve all heard, has a
12 length and has a diameter; is that correct?
13 A. Yes.
14 Q. And is it correct that the technique that you
15 were using for this study in your laboratory only detects
16 fibers that are about .15 in diam — .15 microns in
17 diameter or greater?
18 A. In our screening magnification, thats
19 correct.
20 Q. Now, could you have used a magnification that
21 would have allowed you to see — to have seen thinner
22 fibers; in other words, fibers thinner than .15 micron?
23 A. Sure, yes. We actually do that. You — we
24 look at the — in a — in a screening magnification we look
25 at a field of a thousand X. If we see anything suspicious
139
1 in that field then we will increase our magnification un –
2 until we resolve our suspicion.
3 Q. Theres another kind of — of microscope
4 called a TEM; is that right? Transmission electron
5 microscope; is that correct?
6 A. Yes.
7 Q. And that microscope is — gives you higher
8 magnification, for lack of a better phrase?
9 A. It can magnify up to a million times. An SEM
10 allows you to magnify up to about 100,000 times.
11 Q. Isnt it correct — first of all, lets talk
12 about length.
13 When youre looking at lung tissue of
14 somebody who had mesothelioma, and youre using your SEM
15 microscope, isnt it true that you are not looking at
16 fibers that are shorter than a certain length; is that
17 correct?
18 A. Yes. We — since I started doing this in
19 1980 we have not counted fibers that are less than five
20 microns in length.
21 Q. So that youre not taking into consideration
22 the majority of chrysotile fibers that are in the lung in
23 terms of length; is that correct?
24 A. Thats correct.
25 Q. Now, in terms of diameter, isnt it true that
140
1 chrysotile fibers are frequently thinner than .15 microns?
2 A. They certainly can be, yes, sir.
3 Q. And so when youre doing your lung studies
4 for your report for your study where you changed your
5 opinion, theres a lot of chrysotile fibers that youre
6 simply not counting because you cant see them with your
7 microscope; isnt that right?
8 A. There are some fibers that we will miss with
9 our screening technique. Thats true.
10 Q. You could have increased your magnification;
11 is that right?
12 A. Yes, but if you do that you have to go back
13 and look at a higher magnification at your controls as
14 well.
15 Q. Have you — has your method of looking for
16 chrysotile fibers in the lung samples been criticized by
17 other scientists?
18 A. Well, theres always disagreement, I think,
19 in the literature about various topics. I think Dr. Dodson
20 has been a champion that TEM is the way to do analysis of
21 tissue. And weve had some disagreements in the literature
22 about TEM versus SEM that are a matter of record.
23 Q. Right.
24 Would you bear with me for one second,
25 please?
141
1 A. Sure.
2 THE COURT: Absolutely. Oh, were you talking
3 to me?
4 MR. ROSEN: Oh. I could be talking to the
5 Court as well. I was just asking the witness. I was just
6 trying to be polite to the witness, Your Honor.
7 THE COURT: I had my glasses off. I couldnt
8 see.
9
10 BY MR. ROSEN:
11 Q. Well, Ill have to look in a bit. I want to
12 move on.
13 I want to ask you about a couple of the
14 articles that you did testify about. And one was the
15 Ilgren article that was the study of rats, where rats
16 breathed in different types of asbestos fiber. Do you
17 recall testifying about that?
18 A. Yes, sir.
19 Q. And I think you said that was a 1998 article
20 by Ilgren and Chatfield; is that correct?
21 A. Thats correct.
22 Q. Are you aware that Dr. Chatfield has
23 testified he basically had nothing to do with that work
24 that was done in that article?
25 A. No.
142
1 Q. Would that matter to you really, whether he
2 had or hadnt?
3 A. There are possibly scenarios where that might
4 matter, but I cant think of anything at the moment where
5 that makes any difference.
6 Q. Are you aware — well, strike that.
7 That study was a study where rats were put in
8 a breathing chamber and breathed in different types of as
9 — of asbestos dust; is that correct?
10 A. Yes. They were the source study — they were
11 the studies that Dr. Brody did in exposing the animals to
12 various types of dust.
13 Q. And the studies themselves, the — the actual
14 procedure itself, was done sometime in the 80s; is that
15 right?
16 A. Yes, sir, back in the early 80s.
17 Q. And then what happened was this Dr. Ilgren
18 went into the archives, for lack of a better word, and
19 pulled some of the testing data and looked at it and
20 published it in an article; is that correct?
21 A. Yes.
22 Q. The original people who did the testing did
23 not publish it; is that correct?
24 A. Thats true.
25 Q. Now, Dr. Ilgren at the time he pulled this
143
1 stuff out of the archives and published this article, at
2 least ostensibly with Dr. Chatfield, at the time was
3 working as a con — a — a paid consultant in litigation
4 for Union Carbide Corporation; isnt that correct?
5 A. That may or may not be the case. I havent
6 looked in — into that question.
7 Q. Was — in that particular test the rats were
8 exposed to Calidria asbestos, Cali — Calidria chrysotile
9 asbestos and other types of chrysotile asbestos; is that
10 correct?
11 A. Yes, sir.
12 Q. Was the doses that the rats were given the
13 same for the different types of asbestos?
14 A. In terms of the –
15 Q. The mass.
16 A. — weight, mass, of the dust –
17 Q. Yes.
18 A. — that went into the aerosol?
19 As far as I know, they were the same.
20 Q. Are you aware — well, would it be
21 significant to you in using that study to base your opinion
22 on to know that in fact the rats were exposed to one-third
23 in terms of mass of the amount of dust that the other rats
24 were exposed to in terms of chrysotile asbestos?
25 A. I think Id have to see the numbers to — to
144
1 really see what that meant in terms of what the animals
2 were breathing. But when you consider that — that — that
3 in — in Dr. Brodys rat studies they were breathing 4,000
4 to 10,000 fibers per cc. of air, which is 100,000 times
5 higher than the current government-allowed level of
6 chrysotile in the workplace, that one-third of that level
7 would still be very high levels of asbestos.
8 Q. Let me try to give you some more information
9 and see if this makes a difference to you.
10 A question was asked of Dr. Ilgren in a
11 deposition under oath: You are aware that in the original
12 study, in which you were not involved, the rats were only
13 made to breathe one-third as much Union Carbide asbestos as
14 the Canadian chrysotile asbestos; isnt that true, sir?
15 And his answer: I think youre referring to
16 the mass doses, and I dont think — I think its 7.6.8
17 milligrams per cubic meter — meter for Calidria and 10 and
18 11 for the two Canadian.
19 And then the next question: Dr. Ilgren,
20 isnt it — is it fair to say, is it not, that the rats
21 back in the experiments got about a third as much Union
22 Carbide Coalinga dust as they did Canadian chrysotile, and
23 your answer was that would be the assumption?
24 And his answer: Mass, yes. Well, then I got
25 my numbers wrong. Still theyre tremendous doses.
145
1 Would you agree — well, would that change
2 your opinion at all regarding the significance of that
3 article?
4 A. No.
5 Q. Your opinion –
6 A. No.
7 Q. — is still the same?
8 A. I mean, if — if — if youre talking about
9 giving these huge doses, and to say that if you reduce that
10 huge doses to one-third and all of a sudden that
11 miraculously causes no fibrosis or neoplasia to occur, I
12 think that that would — that would not be an appropriate
13 conclusion to draw.
14 Q. From reading — from reading the article are
15 you able to tell that theres a difference in the doses
16 being administered to the rats?
17 A. Not that I recall from the article. I
18 havent read the article with that question in mind.
19 Q. Well, is that something that if you were
20 doing that study — I know Dr. Ilgren didnt do it himself.
21 But is that something that if you were doing that study
22 that you would put in your report of that study?
23 A. Well, I — I may or may not. I think it
24 depends on — on exactly, you know, what we were trying to
25 write up and trying to — and trying to — to convey to the
146
1 readers. But I do think that if what Dr. Ilgren or
2 Chatfield did was inappropriate, then I would expect that
3 the original people who did that work — Dr. Crapo, Dr.
4 Brody, Dr. Pinkerton were involved — that they would write
5 letters to the editor or make publications criticizing it,
6 and I have not seen that in the literature.
7 Q. You dont know that it didnt happen, you
8 just havent seen it?
9 A. I have not either seen testimony or seen
10 publications in that regard.
11 Q. You havent seen Dr. Ilgrens testimony
12 either, have you?
13 A. Thats true. Thats true. I have not seen
14 Dr. Ilgrens testimony in that regard.
15 Q. Are you aware that in his testimony under
16 oath he said theres actually errors contained within the
17 reports in the manner in which he reported it?
18 A. No.
19 Q. Are you aware of that?
20 A. Ive not seen that.
21 Q. Now, youre familiar with the studies done by
22 Dr. Suzuki and Dr. Kohyama; is that correct?
23 A. Yes, sir.
24 Q. And Dr. Suzuki, I believe, is a pathologist,
25 just as you are; is that correct?
147
1 A. He was. Yes, sir.
2 Q. He was. I apologize. Thats right. Hes
3 deceased now; is that right?
4 A. Thats correct.
5 Q. All right. He was — was he Dr. Selikoffs
6 — was he a pathologist that worked with Dr. Selikoff at
7 Sinai?
8 A. Yes. I think when Dr. Selikoff was doing his
9 studies of insulators and — and looking at mesothelioma in
10 — among the insulators that Dr. Suzuki was looking at the
11 slides and telling him that the — the people did in fact
12 have or not have mesothelioma or lung cancer, whatever they
13 — disease they were studying at the time.
14 MR. ROSEN: May I approach, Your Honor?
15 THE COURT: Yes.
16
17 BY MR. ROSEN:
18 Q. Doctor, P 221. Youve seen that article
19 before; is that correct?
20 THE COURT: Can I just ask you what the
21 number is again?
22 MR. ROSEN: 221, Your Honor.
23 THE COURT: Sorry.
24 A. I believe Ive seen this. This is one of his
25 earlier works. As far as I can recall, Ive seen it.
148
1 BY MR. ROSEN:
2 Q. Okay. And Dr. Suzuki is rec — a recognized,
3 qualified expert in the field, is that correct, of
4 pathology, or was?
5 A. Yes. He certainly pub — published in the
6 peer-reviewed literature on — on a number of topics
7 relating to asbestos and other mineral fibers.
8 Q. And is it correct that in their studies they
9 were looking at the ability of different types of fibers to
10 translocate from the lung into the pleura and the
11 peritoneum?
12 A. Yes.
13 Q. And when we say translocate, what does that
14 mean?
15 A. That means to remove — to move from one site
16 in the body to a different site.
17 Q. And the finding of the doctors, was it not –
18 how about — you know what? Just let me get this up. Its
19 the second page.
20 Yeah. Thank you. On the — its the second
21 page from the front, please, under Discussion.
22 The bottom line. Isnt it true, Doctor, that
23 the findings of the doctors were, one, that inhaled
24 asbestos fibers were translocated from the lung into the
25 pleura and the peritoneum, and, two, the potential for
149
1 translocation is different for chrysotile and amphibole
2 asbestos fibers, chrysotile having a significantly greater
3 tendency to translocate compared with amosite?
4 Wasnt that one of the conclusions of the
5 findings of the study?
6 A. Thats what he concluded, yes, sir.
7 Q. And on the last page, if I could go back to
8 the back page. And its 704 in your article, Doctor.
9 Under number — thank you — that top paragraph number
10 three.
11 Chrysotile fibers cleared from the lung were
12 not later eliminated from the host.
13 Do you see that?
14 A. Yes.
15 Q. And that was another finding of the doctors;
16 is that correct?
17 A. Yes, sir.
18 Q. You disagree with their findings; is that
19 right?
20 A. Well, of course. Theres — theres the
21 fibers that are removed from the — from the — by — from
22 the sputum that you cough up. Theres fibers that are
23 removed through passage of materials through the GI tract.
24 Theres fibers that are removed in the urine. So to say
25 that the — the chrysotile fibers that clear from the lungs
150
1 are not eliminated at all from the host is — is
2 ridiculous.
3 Q. You think their conclusions are ridiculous?
4 Dr. Suzukis conclusions are ridiculous?
5 A. As — as a reviewer I would not have allowed
6 them to make the statement the way that they did.
7 Q. Okay. Are you familiar with a study entitled
8 Cancer Mortality Among Workers Exposed to Amphibole-Free
9 Chrysotile Asbestos?
10 A. Is that the Yano study?
11 Q. Yano study. Thats correct.
12 A. Yes, Im familiar with that.
13 Q. Youre — youre familiar with that as well;
14 is that correct?
15 A. Yes, sir.
16 MR. ROSEN: Okay. May I approach, Your
17 Honor?
18 THE COURT: Yes.
19
20 BY MR. ROSEN:
21 Q. P 222. This was a study done where?
22 A. This was from China.
23 Q. And this was a study of workers exposed to
24 amphibole-free chrysotile asbestos; is that correct?
25 A. Thats what they alleged.
151
1 Q. Youre saying — youre saying theyre wrong;
2 is that correct?
3 A. Well, Im not saying their wrong. The
4 scientists from Finland who analyzed the Chinese chrysotile
5 said theyre wrong.
6 Q. Would you agree that the findings in this
7 case are that the present study demonstrates — can we go
8 to the last page, the last paragraph?
9 Im sorry. Make that — go to the last page.
10 Go to the left column, please. Page 542. Thank you. And
11 theres a paragraph that begins, As the results indicate.
12 That small paragraph up there, on the left,
13 up near the top. Can I get that blown up, please?
14 Okay. Thank you.
15 As the results indicate, we found no evidence
16 in support of the amphibole-contaminant hypothesis.
17 Is that one of the conclusions drawn?
18 A. Yes, sir.
19 Q. Thats your hypothesis, the
20 amphibole-contaminant hypothesis; is that right?
21 A. Well, its not my hypothesis, but its one
22 that I happen to agree with.
23 Q. Okay. So thats the hypothesis that
24 chrysotile doesnt cause mesothelioma or peritoneal
25 mesothelioma, its that its the contaminant within the –
152
1 the chrysotile thats causing it; is that correct? Thats
2 the hypothesis?
3 A. Well, that — its the idea that the
4 contaminating tremolite is what causes mesothelioma of the
5 pleura in individuals who are exposed to sufficient levels
6 of chrysotile. But as I indicated earlier, I dont think
7 that you get high enough exposures to chrysotile to get
8 enough tremolite to the peritoneum for chrysotile, even
9 contaminated chrysotile, to cause peritoneal mesothelioma.
10 Q. And the next sentence to the study: To the
11 contrary, a strong potential for chrysotile asbestos alone
12 to cause lung cancer and mesothelioma is suggested.
13 That was the conclusion of the study; is that
14 correct?
15 A. Thats what they concluded, yes, sir.
16 Q. And you disagree with that conclusion; is
17 that correct?
18 A. Yes. It is incorrect.
19 MR. ROSEN: Your Honor, if I may, I want to
20 find a document and I cant seem to find it here. Can I
21 take a — it only has to be five minutes because I do want
22 to keep moving, but I do need to find the document. If I
23 could take a break.
24 THE COURT: Just get up and walk around and
25 stretch or — or do whatever rather than — or do you want
153
1 to take a break now?
2 A JUROR: Five to 10 minutes?
3 A JUROR: Yeah, five or 10 minutes would be
4 fine.
5 THE COURT: Want to take a break outside or
6 in here?
7 A JUROR: Outside.
8 THE COURT: Outside. Okay.
9
10 (The jury retired to the jury room.)
11
12 (Recess)
13
14 THE COURT: All right. Mr. Rosen?
15 MR. ROSEN: Yes, Your Honor. Thank you.
16 THE COURT: Thank you.
17 MR. ROSEN: Thanks.
18
19 BY MR. ROSEN:
20 Q. Dr. Roggli, do you recall testifying under
21 oath in a case — I — I know you testify a lot, and I
22 apologize, but the case is Paz vs. — is it Chesterin?
23 AN UNIDENTIFIED SPEAKER: Chesterton.
24
25
154
1 BY MR. ROSEN:
2 Q. Chesterton. Im sorry.
3 A. How do you spell the first?
4 Q. P-A-Z.
5 A. Very vaguely.
6 Q. January 27th, 2006?
7 A. 2006?
8 Q. Yeah.
9 A. Doesnt ring a bell yet.
10 Q. Let me — I want to read you this question
11 from a deposition that I have and see if you recall being
12 asked this que — youre being asked questions about, you
13 know, the Ilgren-Chatfield article that weve been talking
14 about and –
15 A. Sure.
16 Q. — you were asked questions about it.
17 And I want to ask you if you recall being
18 asked a question like this and giving this ans — answer:
19 If a paper, including the four of the series that
20 Dr. Ilgren and Dr. Chatfield wrote, contained the statement
21 in the title that it was a short amphibole-free chrysotile,
22 would that indicate to you that they were saying it was
23 tremolite-free? And your answer was: Yes.
24 And then you were asked: If they published
25 those papers with no data to support them, would that cause
155
1 you to fail or to no longer rely on those papers for their
2 contents? And your answer was: No, because I never relied
3 on their paper for the proposition that Coalinga or
4 Calidria chrysotile was tremolite-free anyway. I didnt
5 rely on that — on their paper for that proposition.
6 Is it possible you said that?
7 A. Sure. Yes.
8 MR. ROSEN: Okay. I want to — may I
9 approach, Your Honor?
10 THE COURT: Certainly.
11
12 BY MR. ROSEN:
13 Q. I want to show you the article that I found,
14 and its Plaintiffs 223. And this is the Dodson and
15 Hammer article that we were discussing; is that correct?
16 A. Yes, sir.
17 Q. Okay. And youre familiar with this article;
18 is that right?
19 A. Yes. Ive written a response to it and
20 theyve written a response to my response.
21 Q. Theres been a back-and-forth between you; is
22 that correct?
23 A. Yes, sir.
24 Q. Having said that, youre all recognized,
25 qualified scientists, is that correct –
156
1 A. Yes.
2 Q. — who are having a disagreement? Is that
3 right?
4 A. Yes.
5 Q. Okay. And they — what theyre doing in
6 their study is theyre talking about the different types of
7 microscopes and the ability of the different types of
8 microscopes to find different kinds of fibers when youre
9 looking at lung tissue; isnt that right?
10 A. Yes, sir.
11 Q. Which is exactly what you were doing in your
12 studies with the SEM, looking in the lung tissue and
13 looking for chrysotile fibers, is that correct –
14 A. Yes.
15 Q. — among other fibers?
16 A. True.
17 Q. Okay. And basically what they found in their
18 study was that by using the other type of microscope, the
19 TEM, they were finding a lot more chrysotile fibers than
20 you were able to find; is that correct?
21 A. In total number, yes.
22 Q. Okay. Could we go to — I — Id like to go
23 to page 731. Rather than reading through the whole article
24 and boring the jury, I just want to go, if I could, to the
25 summary.
157
1 As demonstrated by a case report of an
2 individual whose only reported exposure to asbestos was
3 from brake dust while working as a machinist, evaluation of
4 lung tissue by ATEM at 15,000 times identified a
5 significant elevated concentration of chrysotile asbestos
6 that was not found by SEM at 1,000 magnification.
7 Did I read that correctly?
8 A. Yes. Thats what he said.
9 Q. Thats — thats the conclusion of the — of
10 the study; is that correct? The article?
11 A. Thats what they claimed, yes.
12 Q. Okay. And the — what you were using in your
13 studies was SEM at 1,000 magnification; is that correct?
14 A. True.
15 Q. And then skipping the next line, the jury can
16 see it, but skipping to the — the below paragraph: Unless
17 lung tissue and/or air is analyzed by ATEM at 15,000 times
18 or greater magnification, a significant number of short
19 fibers and long, thin fibers, most of which are chrysotile
20 asbestos, will be missed.
21 Was that — did I read that correctly?
22 A. Yes.
23 Q. Was that the conclusion of the study?
24 A. Yes, they concluded that.
25 Q. This lack of information could result in
158
1 coming to conclusions that are not factually correct with
2 respect to the type of asbestos found in lung tissue as
3 reflective of past exposure and thus attribution for its
4 potential contribution in causation of a given
5 asbestos-related disease, including mesothelioma?
6 Did I read that correctly?
7 A. Yeah. Thats what they claim.
8 Q. Was that the conclusion — another conclusion
9 of this article?
10 A. Thats what they claim. Yes.
11 Q. And that would relate directly — when they
12 talk about this lack of information could result in coming
13 to conclusions that are not factually correct, that could
14 relate directly to the studies — could be critical of the
15 studies that you had done of the 1,445 cases where you used
16 SEM at 1,000 magnification?
17 A. If they were, in fact, right in this regard
18 that would be true, but theyre not.
19 Q. All right. In fact, when you read the
20 article you issued a reply, and Im sure counsel will ask
21 you and you can explain why theyre wrong –
22 A. Sure.
23 Q. But when you wrote — read this article you
24 thought to yourself, Theyre talking about my studies, and
25 thats why you fired off a response. Isnt that right?
159
1 A. No. Because thats — they say at the very
2 beginning they — quoting our paper, that they — they
3 specifically did this, wrote this article, to attack a
4 paper which one of my previous fellows, Dr. Kelly Butnor,
5 wrote and published in 2003. And the whole purpose of this
6 article was to attack that paper we published.
7 So I knew immediately in seeing this what it
8 was about.
9 Q. In terms of your opinions about chrysotile
10 asbestos not — pure chrysotile asbestos not causing
11 peritoneal mesothelioma, different agencies in this country
12 and throughout the world dont distinguish the
13 carcinogenicity of asbestos and chrysotile asbestos like
14 you do; is that correct?
15 A. In terms of — of making reg — regulatory
16 decisions.
17 Q. In other words –
18 A. Regulatory agencies have generally not gone
19 to the step of — of looking at differences in fiber
20 potency and type or location and how that might be related
21 to different exposures. So they concluded basically, yeah,
22 all fiber types cause all the diseases.
23 Q. Right. In other words, OSHA says that all
24 fiber types cause all kinds of disease; is that right?
25 A. Yes.
160
1 Q. The Environmental Protection Agency says all
2 fiber types cause peritoneal, pleural, all kinds of
3 disease; is that correct?
4 A. Yes.
5 Q. The World Trade Organization says all fiber
6 types, including chrysotile, including Calidria, cause all
7 kinds of disease, dont they?
8 A. I dont know if Ive read in their document
9 where they say specifically including Calidria, but I know
10 that they — they — they conclude all fiber types, yes,
11 sir.
12 Q. All right. They dont distinguish Calidria
13 as not causing it; is that correct?
14 A. Ive not seen anything that theyve written
15 that says Calidria is different, no.
16 MR. ROSEN: May I approach, Your Honor?
17 THE COURT: Yes.
18
19 BY MR. ROSEN:
20 Q. Im going to show you whats been marked as
21 224. Youve seen this document before; is that correct?
22 A. I have.
23 Q. This says its an affidavit of Victor Roggli,
24 M. D.; is that correct?
25 A. Yes, sir.
161
1 Q. Is this your affidavit?
2 A. It was an affidavit that was prepared by the
3 law firm of Waters & Kraus that I reviewed, edited and
4 executed.
5 Q. When did you — you said it — Im sorry, you
6 said it was prepared by the attorneys?
7 A. Yes.
8 Q. Written by the attorneys?
9 A. Yes.
10 Q. And then you reviewed it and signed it?
11 A. Or they consulted with me prior to writing it
12 so they knew what my opinions were, of course. Then they
13 wrote the affidavit. Then they sent it to me, I read it, I
14 edited it, and then I executed it.
15 Q. If you could just go to the last page, page
16 six. I — thats your signature; is that correct?
17 A. Yes.
18 Q. And it says: Subscribed and sworn to me
19 before the 20th of May. It looks like it was notarized; is
20 that right?
21 A. It was.
22 Q. On Janu — Im sorry, May the 20th of 2005;
23 is that right?
24 A. Correct.
25 Q. Okay. And if you look at the front page –
162
1 can you just go to the front page real quick?
2 Okay. It says: Before me, the undersigned
3 authority, on this day personally appeared Dr. Victor
4 Roggli.
5 And then it goes on and basically lists all
6 your qualifications; is that correct?
7 A. It lists qualifications. Yes.
8 Q. Okay. And at the very bottom, that last line
9 — thank you — you state: I hold the following opinions
10 to a reasonable degree of medical and scientific certainty.
11 Is that correct?
12 A. Yes.
13 Q. I want to go to the first paragraph of the
14 next page. But before I ask you about this, was this
15 submitted in connection with litigation?
16 A. Yes.
17 Q. Was this for a — were you retained by a law
18 firm that was representing a plaintiff in a certain
19 litigation?
20 A. Yes.
21 Q. And was that plaintiff somebody who was
22 exposed to asbestos through the — through household
23 contacts?
24 A. Yes.
25 Q. Okay. Now, if we could go to the front –
163
1 could we — the first paragraph.
2 Mesothelioma is a relatively rare disease.
3 Science has not demonstrated any proven cause of
4 mesothelioma in the workplace other than exposure to all
5 forms of asbestos dust, which makes it a signal malignancy,
6 i.e., an epidemiological marker for exposure to asbestos.
7 And that — those were the words you adopted;
8 is that correct?
9 A. Yes.
10 Q. And weve asked you about that?
11 A. Yes.
12 Q. And youve basically testified about that?
13 A. Yes.
14 Q. Okay. Once a patient is diagnosed with
15 mesothelioma, one of the first questions to resolve is
16 where and when he or she was exposed to asbestos. Because
17 asbestos dust is so strongly associated with mesothelioma,
18 proof of significant exposure to asbestos dust is proof of
19 specific causation in a given case.
20 Again, thats — those were the words you
21 adopted and signed to; is that correct?
22 A. Yes.
23 Q. And as weve discussed here today, we asked
24 you some questions about it, and you — you agree with
25 that; is that right?
164
1 A. Yes.
2 Q. Okay. If youd go to the next paragraph.
3 MR. TERRY: Excuse me, Your Honor. If what
4 hes doing is asking the witness whether or not this is
5 what he testified to earlier, then this does not become a
6 prior inconsistent statement. It is a prior consistent
7 statement and should not be admitted in this fashion.
8 MR. ROSEN: I believe it is.
9 THE COURT: I will agree with you if thats
10 true, but I find it hard to believe that Mr. Rosen is going
11 through this so he can say everythings the same.
12 MR. TERRY: Right.
13 THE COURT: So well give him a little more
14 time and see where we go.
15
16 BY MR. ROSEN:
17 Q. The next paragraph, Doctor: The scientific
18 and medical community have yet to determine a level of
19 exposure to asbestos below which mesothelioma does not
20 occur. While there is no threshold, there is insufficient
21 evidence to implicate levels of exposure to asbestos that
22 occur as a result of background or ambient air exposure.
23 Those are the words you adopted as well; is
24 that correct?
25 A. Correct.
165
1 Q. The next sentence: Very low levels of
2 exposure above background, however, have been demonstrated
3 to cause mesothelioma.
4 Those are the words you adopted; is that
5 correct?
6 A. Yes.
7 Q. It is also my opinion that it is the total
8 dose of asbestos, regardless of fiber type, that the
9 patient experiences that causes the disease.
10 Did you adopt those words as well?
11 A. Yes.
12 Q. Isnt that different than what youre telling
13 us here today, that exposure to chrysotile fiber cannot
14 contribute to causing the disease?
15 A. No, not in terms of — of exposures that are
16 significantly above background because, in my opinion, the
17 sorts of exposures were talking about dont result in
18 accumulations of asbestos in the lung significantly above
19 background, at least of the fiber types and sizes that
20 cause disease.
21 Q. Im trying — I apologize, Doctor. Im just
22 trying to understand your answer –
23 A. Sure.
24 Q. — which I frankly dont.
25 You state here: Its my opinion that the
166
1 total dose of asbestos — now, that means the amount of
2 asbestos that a person is exposed to; is that correct?
3 A. Thats correct.
4 Q. Regardless of the fiber type, meaning
5 chrysotile, it could be, I dont know, crocidolite, it
6 could be whatever type, any type of amphibole, but
7 regardless of the fiber type, thats what you mean by that
8 phrase, any type of fiber; is that right?
9 A. True.
10 Q. That the patient experiences that causes the
11 disease. Arent you saying here that — that the total
12 dose, including exposure to chrysotile fiber, causes the
13 disease?
14 A. In certain cases, yes, it can.
15 Q. Well, I — Im sorry. Well, let me go
16 through the next sentence just to make it clear.
17 Its further my opinion that each and every
18 exposure to asbestos that an individual with meso — with
19 mesothelioma experienced in excess of a background level is
20 a substantial contributing factor in the development of the
21 disease.
22 Thats the entire paragraph that you wrote;
23 is that correct?
24 A. I did not write it, but I read it, edited and
25 executed the document.
167
1 Q. I dont see anywhere in here in this
2 paragraph that youre qualifying that response, that in
3 certain cases that its the total dose of asbestos that the
4 patient experiences that causes the disease. Am I missing
5 something or is that just assumed in the paragraph?
6 A. No. Its all here. In — in the paragraph
7 before it, it talks about significant exposure, and — and
8 here it says, in excess of background levels, in the very
9 last sentence.
10 Q. Right. So what youre saying is exposure to
11 all types of fiber, including chrysotile, if its above
12 background level — levels, contribute to causing the
13 disease, contribute to the total dose that causes the
14 disease; isnt that right?
15 A. In terms of background levels that result in
16 levels that are accumulated in the lung above background.
17 Thats what we were talking about.
18 Q. This was a — a case as youve called this
19 that you were retained by the plaintiff; is that right?
20 A. Yes, sir.
21 Q. Now, you — especially over I think you said
22 the last three years you are retained much more by the
23 defendants; is that correct?
24 A. Yes, sir.
25 Q. And part of that has to do with the fact that
168
1 youve changed your opinion and now youre willing to come
2 in and say, you know, chrysotile asbestos doesnt cause
3 peritoneal mesothelioma. I mean, often thats what youre
4 retained to say, isnt it?
5 A. Ive been saying that since 1997.
6 Q. Yeah, but isnt that often what youre
7 retained to say in these cases when youre hired by the
8 defendant?
9 A. If its a peritoneal mesothelioma and the
10 defendant is a chrysotile manufacturing — manufacturer or
11 producer, then that is my opinion, and thats what they ask
12 me to talk about.
13 Q. You — you do do work for a number of
14 companies in asbestos litigation; is that correct?
15 A. I have.
16 Q. You testify or perform work, for example, on
17 behalf of companies that manufacture asbestos-containing
18 brakes or clutches; is that right?
19 A. Yes, sir.
20 Q. Companies like General Motors, Ford,
21 Chrysler, Abex, Bendix, Borg-Warner; is that correct?
22 A. Yes, sir.
23 Q. You testify or perform — or perform work on
24 behalf of companies that manufacture asbestos-containing
25 gaskets and packing, dont you?
169
1 A. Yes, sir.
2 Q. Like Garlock, John Crane, A. W. Chesterton;
3 is that right?
4 A. Very infrequently for Garlock, but I have
5 testified for John Crane and A. W. Chesterton, yes.
6 Q. You testify for companies that — that –
7 that sell joint compound, dont you?
8 A. I have on occasion, yes, sir.
9 Q. Like Georgia-Pacific; isnt that right?
10 A. I have, yes, sir.
11 Q. Okay. Youve testified for Union Carbide
12 before; isnt that right?
13 A. Yes, sir.
14 Q. Youve done work for Union Carbide regarding
15 their Bakelite products; isnt that right?
16 A. Ive looked at some cases that included
17 Bakelite exposures, yes, sir.
18 Q. Youve testified for Owens — for
19 Owens-Corning; is that right?
20 A. I have looked at cases for them. I dont
21 know if I actually testified in a courtroom for them in a
22 case.
23 Q. How about Pittsburgh Corning?
24 A. Ive — I have looked at cases for them. I
25 dont recall testifying in a courtroom for them.
170
1 Q. Phillip-Carey?
2 A. Ive looked at cases for Phillip-Carey and I
3 dont know that I ever testified in a courtroom for them.
4 Q. How about for cigarette manufacturers who
5 have asbestos in their filters? Have you done work for
6 them?
7 A. Ive testified for Harbison and Vose
8 (phonetic), which is a manufacturer or distributor of the
9 — of the filter in Kent cigarettes.
10 Q. We were talking about different agencies and
11 what they found. Didnt the Environmental Protection
12 Agency recently conduct pretty extensive hearings regarding
13 the issue of chrysotile asbestos in the Calidria asbestos?
14 A. Im not sure if youre talking about –
15 saying one thing or two different things. They have
16 produced a document that deals with the Calidria deposit,
17 and then they have had discussions about the — the — the
18 Bin procedure, which are — are — are two different
19 things.
20 Q. Theyre not related?
21 A. Well, they — everything you can tie
22 together, but I dont not — I dont know that theyre
23 directly related.
24 Q. Well, the Bin procedure is about how you
25 evaluate risk of a certain — from certain asbestos
171
1 exposure; isnt that right?
2 A. Right. Based on fiber — fiber type and
3 fiber dimensions, yes, sir.
4 Q. And the — the — the — in terms of what the
5 EPA was doing in regards to the — what is it; Clear Creek
6 management area? Are you familiar with that?
7 A. Yes, sir.
8 Q. Whats Clear Cleek — Creek management area?
9 A. Thats an area in California which in –
10 includes the area in and around the Calidria mine and the
11 Calidria geological area.
12 Q. Is that a Superfund site?
13 A. I believe it is.
14 Q. And thats where — at least its at that
15 location where the UCC mined its asbestos, correct?
16 A. Yes.
17 Q. And the EPA was concerned about people who
18 were doing recreational activities in that area; is that
19 correct?
20 A. They did some investigation along those
21 lines, yes, sir.
22 Q. And they measured air samples from the area;
23 is that correct?
24 A. Thats correct.
25 Q. And the reason they measured the air samples
172
1 was because they wanted to find out if there was any
2 asbestos in the air and what the levels were and what the
3 types were; is that correct?
4 A. Yes, sir.
5 Q. And when they measured the asbestos in the
6 air there they found it was largely chrysotile asbestos;
7 isnt that correct?
8 A. Correct.
9 Q. They also found that in the air about eight
10 percent of the fibers were identified as amphibole fibers;
11 is that correct?
12 A. They described that, yes, sir.
13 Q. Did you submit anything to the EPA on the Bin
14 procedure that you discussed?
15 A. I did.
16 Q. And were you retained by a company to submit
17 that document to the EPA?
18 A. Yes.
19 Q. The company that retained you to submit that
20 document to the EPA, do you recall what company that was?
21 A. I believe it was Caterpillar. At least that
22 was the — the lawyer I was dealing with about possibly
23 testifying before Congress about my opinions about short
24 chrysotile, or before an EPA committee.
25 Q. And a lot of the — pardon me. A lot of the
173
1 information that was contained in your document is some of
2 the same information that youve discussed here today in
3 front of the jury about chrysotile asbestos; is that
4 correct?
5 A. A lot of that. I mean, there is some overlap
6 in — in the issues it involved with friction products
7 versus Calidria chrysotile.
8 Q. So you were submitting a document on behalf
9 of a company and that company sold asbestos-containing
10 products; is that right?
11 A. Yes.
12 Q. Okay. And they hired a law firm and the law
13 firm got in touch with you and you did the document and the
14 document was submitted to the EPA saying, among oth –
15 among other things, that chrysotile asbestos was relatively
16 safe to use?
17 A. No, it didnt say that.
18 Q. What did you say?
19 A. I said that the — that the Bin procedure
20 showing a — a difference between potency for amphiboles
21 versus chrysotile and a difference in potency for long
22 versus short file — fiber asbestos was going along the
23 right tracks, its what the science showed, its what the
24 EPAs own consultants Berman and Crump had concluded after
25 writing a 300-page article and — document, and — and
174
1 reviewing hundreds of — of articles from the literature.
2 Q. When you made your submission to the EPA did
3 you tell the EPA that you had been retained by a law firm
4 that was representing a company that sold
5 asbestos-containing products?
6 A. I didnt submit that directly to the EPA. I
7 sub — I submitted my letter to the lawyer who then
8 presented it to the EPA, and I have no idea what he told
9 them or how he presented it to the EPA.
10 Q. Did you put anything in your letter to the
11 EPA to tell the EPA, along with all your opinions about
12 chrysotile asbestos, that, in fact, you had been retained
13 by a law firm that worked for a company that sold
14 asbestos-containing products?
15 MR. TERRY: Object to the form of the
16 question. The form of the question assumes that the doctor
17 corresponded directly with the EPA. The doctor just
18 testified he gave the letter to a lawyer. You might –
19 MR. ROSEN: Ill rephrase. Ill rephrase the
20 question. Im sorry.
21
22 BY MR. ROSEN:
23 Q. Doctor, you wrote a letter to a lawyer,
24 right? For a lawyer, correct?
25 A. Yes.
175
1 Q. You were retained by the company to do that;
2 is that right?
3 A. Yes.
4 Q. Just like you were retained to give your
5 opinions here today; is that correct?
6 A. Yes.
7 Q. And you knew that the letter that you were
8 writing was going to be taken by the lawyer and given to
9 the EPA; is that correct?
10 A. I presumed it would be. I didnt know if
11 they were going to read it into the document or just give
12 it — give it to them to consider, but I –
13 Q. But you knew it was going to be considered by
14 the EPA; is that correct?
15 A. Yes.
16 Q. Anywhere in the document did you say that you
17 had been retained by a law firm that was representing an as
18 — a company that sold asbestos-containing products?
19 A. I dont recall that thats anywhere in the
20 document.
21 Q. And the conclusions of the EPA in the –
22 after the hearings that they conducted regarding the New
23 Idria area where there are Superfund sites, where the
24 Calidria mine is located, they found, in fact, that, A, the
25 activity that was going on there caused exposure to
176
1 asbestos; isnt that right?
2 A. The –
3 Q. The EPA?
4 A. The Ozware (phonetic) group did. Yeah, the
5 EPA, the Ozware group, did.
6 Q. And they found that children were of a
7 special concern; isnt that right?
8 A. They concluded that, yes.
9 Q. And they concluded that the higher the
10 exposure there the higher the risk would be; isnt that
11 right?
12 A. The — well, thats simple dose-response.
13 Yes.
14 MR. ROSEN: I have no other questions, Your
15 Honor.
16 THE COURT: Redirect?
17 MR. TERRY: Yes.
18 THE COURT: About how long?
19 MR. TERRY: 20 minutes maybe.
20 THE COURT: Do you want to take another break
21 or do you want to just go through until this witness is
22 concluded?
23 A JUROR: Do we get to ask questions?
24 THE COURT: Yes.
25 A JUROR: Just go through till we finish.
177
1 THE COURT: Just go through?
2 A JUROR: Yeah.
3 THE COURT: Okay. Mr. Terry.
4 MR. TERRY: Yes. May I see the articles,
5 please?
6 MR. ROSEN: Yeah. Sure. I think theyre up
7 there, actually. Just go right up front.
8 THE WITNESS: Ive got a bunch of them up
9 here if you — you know which ones you want.
10 Heres Yano.
11 MR. TERRY: Dodson and Hammer.
12 THE WITNESS: Dodson and Hammer. Libby. You
13 have to bear with me.
14
15 REDIRECT EXAMINATION
16
17 BY MR. TERRY:
18 Q. Doctor, this article that Mr. Rosen showed
19 you, this is the one from Dodson and Hammer?
20 A. Right.
21 Q. Now, you indicated that, in your opinion,
22 this particular article was directed to one of — an
23 article written by one of your people?
24 A. Yes.
25 Q. How could you tell that?
178
1 A. Well, they talk about it in the article.
2 They — in the — in the very early part they talk about
3 the study that was reported by Butnor and — and Sporn and
4 Roggli, and that they reanalyzed case one from our study of
5 ten cases. They were able to determine which case it was
6 and they — they analyzed the lung-tissue sample, and
7 claimed that they found different results than what we
8 found.
9 Q. Did you respond to the article?
10 A. Yes.
11 Q. And how did you respond?
12 A. Well, we wrote a 750-word five-paragraph
13 response that goes into a lot of details and only addressed
14 the conclusions at the end. But some of the main points
15 that we brought out is that we found exactly the same thing
16 they did.
17 If theyd read our article carefully they
18 would have known that in case number one we found elevated
19 chrysotile, just as they found, and we found the elevated
20 amosite, just as they found. And the exact numbers of how
21 many fibers you found is not important because studies –
22 interlaboratory control studies that have looked at the
23 same samples by laboratories around the world have found
24 that you — that you get different results or different
25 numbers when different laboratories analyze the same
179
1 samples. So the exact numbers, like whether it was a
2 thousand or a million or 100,000, is not important. Its
3 how you arrange the order of the heaviest exposure, the
4 lowest exposure and the ones in between, which in our study
5 we found that that was the case. We did get the same
6 answer of the — of which is the highest and which is the
7 lowest exposure. But the exact numbers would differ from
8 study to study. So the numbers dont — dont mean
9 anything.
10 The other — other problem with — with
11 Dr. Dodsons article is that what weve been trying to say
12 for a long time is that there is room in the literature and
13 room in the scientific community for analysis of — of
14 cases by SEM and analysis of cases by TEM, which is what
15 Dr. Dodson prefers. In fact, if you look at what they
16 published, they found pretty much the same thing that we
17 had using the SEM technique. That is that increased
18 asbestos bodies are found in just over 80 percent of cases,
19 that increased levels of asbestos compared to control
20 population is just under 90 percent of the cases, and the
21 main fiber type that you find is amosite. The same thing
22 they reported with their TEM studies. And yet for some
23 reason Dr. Dodson has been insistent that — that TEM is
24 the only way that you can analyze tissue and SEM is an
25 unacceptable technique.
180
1 And in doing so, Dr. Dodson has overlooked
2 the limitations of his own technique. And thats one of
3 the things we pointed out in our letter to the editor,
4 which he did not respond to actually when he wrote back,
5 and that is, number one, that TEM has bias, just as SEM has
6 bias. SEM is biased toward finding amphibole fibers. TEM
7 is biased toward finding chrysotile fibers.
8 And one of the things that we pointed out and
9 — and published in — in March of this year is that if the
10 epidemiology is telling you that amphiboles like amosite
11 are the cause — are the main cause of mesothelioma, then
12 why would you not use a technique thats biased toward
13 finding those fibers instead of a technique thats biased
14 against finding those fibers. And, secondly, it doesnt
15 make any difference because pretty much the same results
16 are found by SEM and by TEM; that is, elevated fiber counts
17 are present by both techniques when you look at the same –
18 the same samples. And, furthermore, Dr. Dodson thinks hes
19 finding all of the fibers that are present using his
20 technique, whereas studies from England shows that for –
21 when youre looking at the really short fibers, less than
22 one micron in length, youve got a fifty-fifty chance of
23 different observers actually seeing it on the screen
24 theyre so small. So he thinks hes finding all the
25 fibers, but hes not. In fact, anytime you manipulate a
181
1 specimen, if you digest the tissue in bleach, try to
2 recover it, youre — you have the risk of losing fibers or
3 adding fibers by contamination, and youre not necessarily
4 getting back exactly what was in the tissue. And even when
5 you are looking at the specimen youre not finding exactly
6 whats there.
7 So Dr. Dodsons belief that his is the method
8 that gives you the answer and SEM is wrong is simply an
9 unscientific and incorrect way of looking at the question.
10 Q. Doctor, if we look at the title of this
11 article again — with the technical comparison that he made
12 between the two techniques when you looked at it indicated
13 that you were both reaching the same results in terms of
14 the relative ratio, if you will, of the different fiber
15 types?
16 A. Exactly. In fact, one other case that Dr.
17 Dodson had reported in another article that he didnt
18 mention, he also found the same thing in a brake worker,
19 elevated amosite, and — and commercial amphiboles were –
20 were elevated, but he didnt mention that in this article
21 but — but we did and we — we reminded him of it in our
22 letter to the editor.
23 Q. So he reaches essentially the same results
24 that you do?
25 A. Exactly.
182
1 Q. Now, you published a textbook or published a
2 book that we talked about earlier under your own name, this
3 one, Asbestos Associated Diseases?
4 A. Yes, sir.
5 Q. Did the authors Dodson and Hammer publish a
6 book similar to yours?
7 A. They came out with a book I believe in 2007
8 which has a little bit different title, but its also
9 dealing with the various aspects of asbestos, including
10 pathology.
11 Q. Is this it?
12 A. Yes, sir.
13 Q. All right. This is the book, Asbestos Risk
14 Assessment: Epidemiologic and Health Effects, correct?
15 A. Yes sir.
16 Q. Is this the same book that was written by –
17 or edited by the authors of the article, Dodson and Hammer?
18 A. Yes.
19 MR. TERRY: Your Honor, Id like to use this
20 textbook under the learned treatise rule 803.
21 THE COURT: No objection?
22 Fine.
23
24 BY MR. TERRY:
25 Q. Im going to highlight a portion of the book,
183
1 sir. Can you read that?
2 A. Yes.
3 Q. Can you read that aloud?
4 A. Peritoneal mesotheliomas are typically
5 associated with lengthy exposures to amphiboles. There is
6 little proof that chrysotile causes peritoneal
7 mesothelioma. Because peritoneal mesotheliomas are
8 associated with high cumulative levels of amphibole
9 exposure, they are more frequently accompanied by pleural
10 plaques and pulmonary asbestosis than are pleural
11 mesotheliomas.
12 Q. Is this essentially what you told the jury
13 this morning?
14 A. Yes, sir.
15 Q. So that Dodson and Hammer, the people that
16 criticized your use of SEM as opposed to whatever technique
17 theyre using, when it comes down to the specific issue in
18 this case reach essentially the same result?
19 A. Yes, sir.
20 MR. ROSEN: Michael, may I see that? Thank
21 you.
22
23 BY MR. TERRY:
24 Q. Now, the article that I showed you is not
25 written by either Dodson or Hammer, correct?
184
1 A. Which article?
2 MR. TERRY: May I see the book, sir?
3
4 BY MR. TERRY:
5 Q. This.
6 A. Oh, yes, that particular chapter. Thats
7 correct. Its written by Dr. Fried — Gary Friedman, who
8 they invited to write the chapter on clinical aspects of
9 asbestos-related diseases.
10 Q. And they are the editors of the book?
11 A. Correct.
12 Q. As you are the editors of — or editor of
13 your book?
14 A. Yes, sir.
15 Q. And so do you assume as editors of the book
16 they stand behind the statement that they published for all
17 the world to see?
18 MR. ROSEN: Objection. Its for the jury to
19 determine. Its not expert testimony what an editor of a
20 book means or doesnt mean.
21 THE COURT: Well…
22 MR. TERRY: Your Honor, he sits on the
23 journals. He does peer reviews. Hes an editor of his own
24 textbook.
25 THE COURT: I think you need to lay a
185
1 foundation. Lay the foundation.
2 MR. ROSEN: Rather than going through that, I
3 will withdraw my objection, Your Honor, and — and let him
4 ask the question.
5
6 BY MR. TERRY:
7 Q. Do the editors stand behind the material that
8 they published?
9 A. Well, I — I dont know whether they stand
10 behind that statement or not, but Dr. Dodson has a lengthy
11 chapter which he wrote in that textbook. Dr. Hammer has a
12 lengthy chapter which he wrote in — in their own textbook.
13 They are the editors, so they got to see everybodys
14 submissions before they submitted this to the — to the
15 publisher to be published. And neither of them wrote in
16 their chapters anything that contradicted what Dr. Friedman
17 wrote in his chapter.
18 Q. Okay. Now, this book was published in 2006?
19 A. 2007, I believe.
20 Q. 2007. Is — have they updated it?
21 A. Not yet, no. Well, there is — they have
22 another edition of another book. Its a different book
23 entirely that just came out this year, 2008.
24 Q. Whats the — whats that book called?
25 A. Thats Dale and Hammers Pulmonary Pathology.
186
1 Q. Does it have reference to peritoneal as –
2 mesothelioma?
3 A. Yes, they talk about peritoneal mesothelioma.
4 Q. The same thing that they reach — or they
5 publish in this book?
6 A. They dont say exactly the same thing in the
7 new textbook.
8 Q. Okay. Now, there was an article written by
9 someone called Yano?
10 A. Yes.
11 Q. Okay. This is the article here?
12 A. Yes, sir.
13 Q. And youre familiar with this article?
14 A. I am.
15 Q. Are you crit — are you critical of this
16 article?
17 A. Im critical of the title in that they –
18 they claim that theyre dealing with amphibole-free
19 chrysotile, which is not the case.
20 Q. How do you know thats not the case, sir?
21 A. Well, Dr. Tossavainen from Finland, who was
22 one of the 19 individuals who participated in the Helsinki
23 conference that we were talking about that published the
24 Helsinki article in 1997, did an analysis of Chinese
25 chrysotile, six different samples of Chinese chrysotile,
187
1 and found tremolite contamination in every one of them.
2 And in addition, he analyzed lung tissue from Chinese
3 workers, chrysotile workers, and he found the same level of
4 contamination of tremolite in their lung tissues as you
5 find in the Canadian chrysotile miners and millers.
6 So the — the — the level of contamination
7 in — in Chinese chrysotile is the same as it is in
8 Canadian chrysotile. And to claim that they are dealing
9 with amphibole-free chrysotile is — is — is just
10 incorrect.
11 Q. So then if the conclusion here, pure
12 chrysotile with amphibole contamination is (inaudible)
13 negligible, do you believe thats the way it should read?
14 A. Yes.
15 Q. Then if they said that, can cause lung cancer
16 and malignant mesothelioma in exposed workers, you would
17 agree with the proposition?
18 A. Yes, in high enough doses. The — the
19 Chinese chrysotile miners and millers whose lung tissues
20 were analyzed had really high levels of exposure just like
21 the Canadian chrysotile miners and millers.
22 Q. So if you assume that the information — the
23 criticism is correct, that the chrysotile asbestos was, in
24 fact, contaminated with amphiboles, this study is on par
25 with all the others?
188
1 A. Yes.
2 Q. How many studies — other than this one, how
3 many studies indicate that contamination with — or how
4 many studies indicate that amosite, crocidolite and other
5 amphiboles are associated with increased levels of
6 mesothelioma?
7 A. Well, theres this — theres large numbers
8 of studies. Those that have been reviewed by Hodgson and
9 Darnton. They were reviewed again by Berman and Crump for
10 the EPA. Theres hundreds, if not thousands, of articles
11 that have looked at that question.
12 Q. And all have reached the answer that amosite,
13 crocidolite, amphibole exposure is associated with
14 mesothelioma?
15 A. Yes.
16 Q. Okay. This is the only article that
17 Mr. Rosen pointed to that suggested a different result?
18 A. For amphibole-free chrysotile, thats
19 correct, yes, sir.
20 Q. Okay. You were asked about Suzuki. Now,
21 this is the article that Mr. Rosen asked you about?
22 A. Yes.
23 Q. Do you agree or disagree with his techniques,
24 his analysis or his conclusions?
25 A. All three.
189
1 Q. Can you explain why?
2 A. Well, without going into great detail,
3 theres — theres a lot of problems with Dr. Suzukis
4 studies. One — one of the biggest problems is that the –
5 the short chrysotile fibers that hes emphasizing and
6 talking about, which have not been shown in experimental
7 studies to cause any diseases, are ubiquitous contaminants.
8 Theyre present in water samples. Theyre present in — in
9 formaldehyde thats used to fix the tissue. Theyre
10 present in paraffin wax thats used to embed the tissue.
11 Theyre present in catsup. Theyre present in beer.
12 Theyre present in wine. Theyre present in food. Theyre
13 just a ubiquitous contaminant. And theyre the vast
14 majority of the fibers you find in lungs from people from
15 the general population like yourselves or — or myself. So
16 contamination is a big issue in — in dealing with the real
17 short chrysotile fibers.
18 The other problem is that he uses — he uses
19 a technology that has not been confirmed in other
20 laboratories and — as part of his work, which is ashing of
21 25-micron-thick slides, and theres no good control tissues
22 for that that — that have been published.
23 He also has problems of using improper
24 controls. When he analyzes tumor tissue he needs to use
25 tumor tissue from people not — of — of cancers that are
190
1 not related to asbestos as his controls and he doesnt do
2 that.
3 So theres a — a — a lot of problems with
4 the — with the Suzuki studies and the conclusions that –
5 that he comes to with regard to short fibers, not least of
6 which is the studies by Dr. Dodson and Dr. Hammer, who
7 dont find the same thing that — that — that Suzuki
8 finds.
9 Suzuki claims that, whereas you may find
10 mostly amosite in the lung tissue, its short chrysotile
11 fibers that get to the pleura. But, in fact, Dodson and
12 Hammer have — have found that the ratio in types of fibers
13 in the lung is the same as the ratio of types of fibers in
14 the pleura and the same as the ratio with types of fibers
15 in the — in the abdominal cavity. And that would lead you
16 to — to worry more about contamination in Dr. Suzukis
17 studies.
18 And, incidentally, in the — the peritoneal
19 mesotheliomas that were looked at by Dr. Dodson and
20 Dr. Hammer when they analyzed the peritoneal tissues they
21 found only commercial amphibole fibers, amosite. They did
22 not find chrysotile or tremolite.
23 Q. I had asked you about the Ilgren article?
24 A. Yes, sir.
25 Q. This article here?
191
1 Okay. This article is written by Ilgren and
2 Chatfield, correct?
3 A. Yes, sir.
4 Q. This is the one that Mr. Rosen asked you
5 about?
6 A. Yes, sir.
7 Q. If I understand correctly, this article
8 essentially took the data from the mice or the rats that
9 were the subject of the Pinkerton study to see what
10 happened to them.
11 A. Correct.
12 Q. So that if there is any difference in the
13 mass that the rats were exposed to that was a decision made
14 by Pinkerton, not by Dr. Ilgren?
15 A. Yeah. Let me — let me just clarify that, is
16 that Dr. Pinkerton was a post doc in the laboratory. The
17 actual exposures in the inhalation chambers were — were
18 done by I believe it was Dr. Adkinson. His — his name is
19 on the — on — on the — some of the original Pinkerton
20 papers as the — the — the Pinkerton paper you showed me
21 earlier. Hes — hes the one — so hes the one thats
22 responsible for the levels of exposure in the chambers.
23 Q. Okay. So the article, the Pinkerton article,
24 which is this –
25 A. Yeah, here it is. Its Bernie Adkins. He
192
1 was the — he was one of the — one of the one — main ones
2 who was responsible for the fiber levels in the chambers
3 and administering that.
4 Q. Okay. So this is 2176.
5 Okay. And its this gentleman right here,
6 Bernard Adkins?
7 A. Correct.
8 Q. So when Pinkerton and the others were doing
9 the study comparing the — comparing the asbestos fibers
10 back in 1981, they were the ones who selected the actual
11 mass that would be used?
12 A. Yes.
13 Q. They were the ones who discerned that that
14 would be a fair and ade — accurate way to compare the
15 fibers?
16 A. Yes.
17 Q. Not Dr. Ilgren?
18 A. Correct.
19 Q. Do you know whether or not anyone, Pinkerton,
20 Brody, McLaurin, Adkins, OConnor, Pratt or Crapo, have
21 complained that Ilgren was in error or misrepresented their
22 data?
23 A. Ive not seen any of those authors publish
24 anything that criticized the Ilgren and Chatfield paper,
25 and Ive not seen any deposition testimony where they said
193
1 that, although, you know, I havent read everything that
2 those guys have said in depositions. But I — Im not
3 aware of any.
4 I would assume that if they had said
5 something contrary it would have been shown to me on
6 cross-examination at some point in time.
7 Q. Now, the Ilgren article itself was published
8 in a peer-reviewed journal?
9 A. Yes, sir, thats my understanding.
10 Q. Do you know who sat on the board that
11 reviewed the article?
12 A. I do not know specifically that, no.
13 Q. But someone would have reviewed the article
14 before it was permitted (inaudible) for publication?
15 A. Sure.
16 Q. Do you know whether or not anyone has ever
17 claimed that they have produced a mesothelioma in a rat
18 through an inhalation study?
19 A. From Calidria chrysotile?
20 Q. Yes.
21 A. No, not that Im aware of.
22 Q. Do you know whether or not there were any
23 subsequent studies done that confirmed the data reached by
24 Ilgren and Chatfield in this article?
25 A. Dont — its such a hard thing to do. Im
194
1 not — Im not aware that anybody has repeated those
2 experiments.
3 Q. Now, in terms of the Pinkerton article
4 itself, they were the ones who looked at — put that one
5 back up there — the Calidria asbestos, although they refer
6 to it as the Coalinga mine?
7 A. Well, back — you remember from the other –
8 other question, Bernstein and others did some experimental
9 studies with inhalation of Coalinga and tremolite and they
10 — they came to the same conclusions.
11 Q. That would have been the exhibit that I
12 showed you here, this one here?
13 A. Yes.
14 Q. Okay.
15 A. Sorry.
16 Q. Thats okay.
17 So this article that you and I looked at this
18 morning is a comparison of Calidria chrysotile to pure
19 tremolite and they were doing inhalation studies on rats?
20 A. Yes. And thats — as you see, thats a much
21 more recent study. Thats — I think Dr. Bernstein is from
22 Switzerland. Thats where the studies are done.
23 Q. And they reached essentially the same results
24 as Ilgren and Chatfield reported?
25 A. Yes, sir.
195
1 Q. Okay. Now, going back to the Pinkerton
2 study, this is the one done in 1981 where they were
3 comparing three kinds of asbestos fibers, to include the
4 one they described as Coalinga-mined?
5 A. Yes, sir.
6 Q. Okay. Now, do you know whether or not these
7 gentlemen had been retained by Union Carbide Corporation?
8 A. Not to my knowledge.
9 Q. Do you know whether or not Union Carbide
10 Corporation was even aware that the study was ongoing?
11 A. Not that I know of.
12 Q. Now, in this — they were the ones who
13 indicated that the Calidria asbestos was unique as compared
14 to the Canadian?
15 MR. ROSEN: Objection.
16 THE COURT: Basis?
17 MR. ROSEN: Can we see you at side-bar
18 instead of in front of the jury?
19
20 (The following side-bar conference took
21 place out of the hearing of the jury:)
22
23 MR. ROSEN: I dont want to (inaudible)
24 because I dont want to keep interrupting. But aside from
25 the fact that hes leading his own witness all over the
196
1 parking lot, number one. Number two, just because I asked
2 questions on cross doesnt mean it — it — it opens up the
3 whole thing to a new direct examination, which is what this
4 is. This is just the same points he made on direct. And I
5 object to it for that reason. Its — its leading and
6 its not proper area for redirect.
7 THE COURT: No.
8 MR. ROSEN: I mean, I understand why hes
9 doing it. Hes rehabilitating his witness. But hes
10 outside the bounds.
11 THE COURT: (Inaudible). There was one
12 question that you objected to that question. I am not
13 going to (inaudible) — transfer your objection to the
14 entire direct. So what was your question?
15 MR. TERRY: The authors of the articles were
16 the ones that determined that the Coalinga asbestos was
17 unique.
18 MR. ROSEN: Objection. Beyond the scope of
19 cross. Its not proper redirect. And leading.
20 THE COURT: Go ahead, you respond.
21 MR. TERRY: I dont believe its beyond the
22 scope of cross-examination. The interrogation involved the
23 Pinkerton article. The interrogation involved whether
24 chrysotile fibers exhibit certain characteristics. Long
25 chrysotile fibers exhibit certain characteristics.
197
1 THE COURT: And — and it also (inaudible).
2 MR. ROSEN: Im sorry. I didnt hear. I
3 apologize.
4 THE COURT: There was a question at some
5 point, I dont have my notes in front of me –
6 MR. ROSEN: Uh-huh.
7 THE COURT: — about whether he relied on a
8 particular article in believing the Calidria was
9 tremolite-free.
10 MR. ROSEN: The Ilgren article.
11 THE COURT: Well, I dont care. I mean, it
12 doesnt matter to me, but that is a very generalized
13 question that I believe that redirect is allowed to go
14 into, so Im overruling your objection.
15
16 (The following was heard in open
17 court:)
18
19 BY MR. TERRY:
20 Q. Doctor, Im — Im putting up here
21 conclusions that I have highlighted in yellow. Okay?
22 Can you read that?
23 A. For some reason my screen is not on here. I
24 dont know what happened.
25 Q. Okay. Ill read it to you. The part that –
198
1 A. I can read most of it, but — (inaudible).
2 Would you like me to read it?
3 Q. The part that Im interested in here is the
4 — where theyre determining that the potential for causing
5 lung injury is different. Do you see that?
6 A. Yes.
7 Q. What is it that they say?
8 A. Well, theyre talking about for the — for
9 the rat lung, fibers that are greater than half a micron in
10 diameter are not going to reach the alveolar region, which
11 is where the injury needs to occur to — to cause scarring
12 and also to be able to get to the pleura to cause cancerous
13 transformation there.
14 And what they found is that the — the
15 Calidria type of asbestos was unique in that there were
16 very few fibers that were long fibers that had diameters
17 that were thin enough, less than .6 micron, to get into the
18 deep part of the — of the rat lungs, whereas there were
19 lots of such fibers present in the Jeffrey mine chrysotile.
20 Q. Which would be Canadian?
21 A. Right.
22 MR. TERRY: Now, may I have the schematic?
23 (Inaudible) the schematic?
24 AN UNIDENTIFIED SPEAKER: This one?
25 MR. TERRY: Yes. Okay. Good.
199
1 BY MR. TERRY:
2 Q. We looked at this schematic before lunch,
3 Doctor?
4 A. Yes, sir.
5 Q. Is this a schematic representation of what
6 they found in the Pinkerton study in terms of Coalinga
7 getting thicker in order to get longer?
8 A. Yes. I think its — understanding — this
9 diagram is very important in understanding a lot of
10 properties of Coalinga fiber, I believe.
11 Q. Can you explain what you mean, Doctor?
12 A. Well –
13 MR. ROSEN: Objection. Ask the Court for a
14 side-bar, please.
15 THE COURT: Pardon me?
16 MR. ROSEN: Asking the Court for a side-bar.
17
18 (The following side-bar conference took
19 place out of the hearing of the jury:)
20
21 MR. ROSEN: I did not ask and single question
22 on cross-examination regarding the idea that Calidria fiber
23 is thicker as it gets longer. I stayed away from it and
24 asked –
25 THE COURT: Now, you asked questions about
200
1 the Calidria fiber becoming thinner. I think –
2 MR. ROSEN: No. I asked questions about a
3 study he did on chrysotile in rats. I didnt ask — had he
4 used the word Calidria I didnt ask any questions about
5 that. I purposely stayed away from the topic. And what
6 Im getting now is a redirect soup to nuts.
7 THE COURT: How much longer are you going to
8 be?
9 MR. TERRY: Not much longer, Your Honor.
10 THE COURT: How much?
11 MR. TERRY: Five minutes, without
12 interruption, or we can take a break now. Whatever you
13 choose.
14 THE COURT: Its going to be later. Im
15 going to overrule the objection. Five minutes.
16 MR. TERRY: Okay.
17
18 BY MR. TERRY:
19 Q. Doctor, you were going to explain why this
20 was different — the importance in understanding the
21 difference about the Coa…
22 AN UNIDENTIFIED SPEAKER: The sounds off.
23 MR. TERRY: Oh.
24 AN UNIDENTIFIED SPEAKER: The sound — the
25 sound –
201
1 AN UNIDENTIFIED SPEAKER: The sounds off.
2 AN UNIDENTIFIED SPEAKER: Thank you.
3 THE COURT: Whats off?
4 AN UNIDENTIFIED SPEAKER: The air
5 conditioning.
6 THE COURT: The what?
7 AN UNIDENTIFIED SPEAKER: Its off.
8 THE COURT: Whats off?
9 AN UNIDENTIFIED SPEAKER: The sound.
10 THE COURT: Why?
11 AN UNIDENTIFIED SPEAKER: Because I had it
12 on. I forgot to take it off.
13 THE COURT: Oh, so they heard everything at
14 the side?
15 AN UNIDENTIFIED SPEAKER: No. (Inaudible.)
16 MR. TERRY: No, they didnt, but they
17 couldnt hear anything else.
18 THE WITNESS: After the side-bar they didnt
19 hear.
20 MR. TERRY: They were in the cone of silence,
21 Your Honor.
22 MR. ROSEN: Youre dating yourself,
23 Mr. Terry.
24 MR. TERRY: No. They had the movie.
25 MR. ROSEN: Im sorry.
202
1 THE COURT: I obviously didnt see the movie.
2 MR. TERRY: Get Smart.
3 THE COURT: I didnt see it.
4 MR. ROSEN: Great show, though.
5 MR. TERRY: We dont get out much, Judge.
6
7 BY MR. TERRY:
8 Q. Why is this important for understanding the
9 unique features of the Coalinga Calidria miners?
10 A. Well, there are three aspects about this that
11 I think are important. One is that — is that the — the
12 fibrils are loosely stuck together, adhered. So if you –
13 if you create an aerosol of this material, the fibers are
14 going to stick together. And — and — and when the
15 animal, experimental animal, breathes in those fibers, the
16 diameters that are too big are not going to allow it to get
17 into the deep part of the lung. However, if you do
18 insufflation experiments where youre pushing in air the
19 material deep into the lungs through the tracheal tree and
20 bypassing the respiratory mechanism, you can put these
21 large clusters of these fibers directly into the lung that
22 never would have gotten there by inhalation. And those
23 large clusters stimulate a giant-cell reaction, a
24 foreign-body type of reaction. That was actually found in
25 the Mellon studies.
203
1 And the third thing thats important about
2 this is that when you put this into solution, into a water
3 solution, you get rapid disaggregation of these — of this
4 large clusters into small, individual fibrils. And,
5 consequently, when this hits the lung, its — the surface
6 of the lung, its — its very similar to a snowflake that
7 melts. That is, it disaggregates into small fibrils,
8 which, number one, can be readily cleared and, number two,
9 dont do any damage to the tissue. And thats why if you
10 take Calidria chrysotile suspended in water and inject it
11 into the tracheobronchial tree, then you dont get the same
12 reaction that they had in the Mellon studies.
13 Q. Mr. Rosen asked you a series of questions
14 about long, thin, chrysotile in lungs persisting for a
15 year. Do you remember that series of questions?
16 A. Yes.
17 Q. Would that apply to Calidria?
18 A. Well, youre not going to have very many long
19 fibers because you can see what it — its aggregation is of
20 — is — is large numbers of short fibers. So that over
21 time as these break apart, divide longitudinally, its not
22 splitting a — a — a long fiber into two long fibers.
23 Instead youre moving little fibers off of this larger
24 cluster over time. And thats — so you would not expect a
25 year later to find a lot of long, thin, chrysotile fibers
204
1 in the lung like you do with the — for example, the
2 Canadian chrysotile.
3 Q. You had — you alluded in re — response to
4 Mr. Rosens questions that in 1997 you changed your
5 scientific conclusion or your opinion.
6 A. Yes.
7 Q. Can you explain to the jury how you did that,
8 why you did that, and why you believe it was appropriate?
9 A. Yes. And — and — and act — frankly, I
10 cant tell you that I ever testified prior to that time
11 that chrysotile causes peritoneal mesothelioma. I may
12 have.
13 Most of the — most of the cases that I was
14 looking at in peritoneal mesothelioma cases that were
15 coming to trial were individuals who had been exposed to
16 insulation products and the fiber types were not so much of
17 an issue.
18 But when we looked at our data in 1997, we
19 saw for the first time — I rec — recognized for the first
20 time that we didnt have any cases — unlike for the
21 pleural cases, we didnt have any peritoneal cases in which
22 only chrysotile or tremolite was elevated in the
23 lung-tissue samples. And that was sort of a — an
24 awakening. And then we started looking at the epidemiology
25 literature and we found the same thing.
205
1 For example, in the chrysotile miners and
2 millers from Canada who were exposed to the heaviest doses
3 of chrysotile of any cohort we know, there were peritoneal
4 — there were pleural mesotheliomas that occurred in about
5 a half a percent of the cohort. One out of — of every 200
6 of those workers got pleural mesothelioma. No peritoneal
7 mesotheliomas in the Canadian chrysotile miners and
8 millers.
9 So that was one of the — one of the
10 epidemiological studies that was supporting the findings
11 which we found when we looked at the lung-tissue samples of
12 individuals with peritoneal mesothelioma.
13 Q. Is it your opinion now, and has it been since
14 1997, that there is no causal connection between exposure
15 to chrysotile asbestos and peritoneal mesothelioma?
16 A. Yes, sir.
17 Q. Which would indicate that Mr. Picinics
18 exposure to Calidria contained in Georgia-Pacific did not
19 cause his peritoneal mesothelioma?
20 A. Correct.
21 MR. TERRY: I pass the witness, Your Honor.
22 THE COURT: Thank you.
23 MR. ROSEN: Just a few questions.
24
25
206
1 RECROSS-EXAMINATION
2
3 BY MR. ROSEN:
4 Q. This textbook was shown to you and this
5 little blurb was read to you from the textbook. You know
6 that Dodson and Hammer did not write that section; is that
7 correct?
8 A. Thats right. It was written by
9 Dr. Friedman, and its a chapter in their textbook which
10 they edited, but they did not themselves write it.
11 Q. Okay. You also know that they dont agree
12 with that proposition and they dont agree with your
13 proposition that chrysotile asbestos cannot cause
14 mesothelioma? Peritoneal mesothelioma. You know they
15 dont agree to that?
16 A. Well, I know that Dr. Hammer has said that in
17 the litigation context, but why wouldnt he say it in his
18 book if he really believes it? I — I dont — I mean, you
19 have to ask him that question. I dont know why he
20 wouldnt say that in his book if thats what — thats what
21 he testifies to. But why wouldnt he say it in his book?
22 Q. So youre saying hes lying under oath when
23 he says it?
24 A. No. Im just –
25 Q. Well, what are you saying?
207
1 A. — saying why didnt he say — why didnt he
2 say it in his book?
3 MR. ROSEN: I have nothing further.
4 MR. TERRY: Your Honor, may the witness stand
5 down?
6 MR. ROSEN: No objection.
7 THE COURT: Yes, but the jury has to have an
8 opportunity to ask questions, so well use the same
9 procedure.
10 You are not to discuss your questions. You
11 are not to show each other your questions. You are to
12 independently determine whether you want to ask a question.
13 Youll write it on your pad. Just as yesterday, give it to
14 John, he will bring it to me, Ill discuss it with the
15 attorneys, and then youll come back in and well ask some
16 questions.
17 Okay. Thank you.
18
19 (The jury retired to the jury room.)
20
21 (Recess)
22
23 AN UNIDENTIFIED SPEAKER: Im back. Im not
24 getting close.
25 MR. TERRY: (Inaudible) because of some other
208
1 things on the list.
2 AN UNIDENTIFIED SPEAKER: So if we can argue
3 from counsel table, then Ill feel –
4 THE COURT: Yes. Dont breathe on me.
5 AN UNIDENTIFIED SPEAKER: (Inaudible.)
6 THE COURT: All right. Egilman. Youre –
7 when can you get me something?
8 AN UNIDENTIFIED SPEAKER: Were working on
9 the brief as we speak.
10 THE COURT: Okay. When realistically?
11 AN UNIDENTIFIED SPEAKER: In the morning,
12 first thing.
13 THE COURT: Oh, wow. Thats wonderful.
14 Thank you very much.
15 Okay. The next — the next thing –
16 AN UNIDENTIFIED SPEAKER: Hes here.
17 THE COURT: Huh?
18 AN UNIDENTIFIED SPEAKER: Hes here.
19 THE COURT: Whos here?
20 AN UNIDENTIFIED SPEAKER: Dr. Egilman, hes
21 here.
22 THE COURT: Okay.
23 AN UNIDENTIFIED SPEAKER: Okay. Just so you
24 know.
25 THE COURT: Okay. The two documents –
209
1 AN UNIDENTIFIED SPEAKER: Yes, Your Honor.
2 THE COURT: — P 71 and P 206. I apologize
3 about this, but Ive lost my notes. Can you just remind me
4 what the issues are with respect to those documents?
5 AN UNIDENTIFIED SPEAKER: Yes, Your Honor.
6 In fact, there are a whole collec — there are a whole
7 class of documents that are interrelated. The AIA
8 documents. So what we did is we put all the documents
9 together, along with a — a brief that talks about the
10 evidence issues and why we gave a copy to counsel. We
11 dont expect that youre going to handle them right away,
12 but it might make things a lot easier since theres a group
13 of documents. They all kind of interrelate.
14 THE COURT: So thats the brief?
15 AN UNIDENTIFIED SPEAKER: This is the brief.
16 THE COURT: And thats for me?
17 AN UNIDENTIFIED SPEAKER: Thats for you. I
18 already gave a copy to Mr. Lynch (phonetic).
19 THE COURT: Okay. And I –
20 AN UNIDENTIFIED SPEAKER: Well be glad to
21 review and respond, Your Honor.
22 THE COURT: Okay. Youll let me know
23 tomorrow morning by when?
24 AN UNIDENTIFIED SPEAKER: Soon. Tomorrow
25 morning by nine, Your Honor, well have a — a response.
210
1 THE COURT: Okay. Youll have a response by
2 — thats wonderful.
3 AN UNIDENTIFIED SPEAKER: Your Honor, can I
4 have an oral response, possibly, if necessary?
5 AN UNIDENTIFIED SPEAKER: (Inaudible) this
6 afternoon.
7 AN UNIDENTIFIED SPEAKER: Thats true. We
8 just finished.
9 THE COURT: I dont think youre going to
10 want to do an oral response.
11 AN UNIDENTIFIED SPEAKER: Okay.
12 THE COURT: I mean, were talking about –
13 Im reaching 15 and Im not at the end right now. Oh, Im
14 at 19. Im at 22. I dont think youre going to want to
15 do an oral response.
16 AN UNIDENTIFIED SPEAKER: In all likelihood
17 not. Is the — are the AIA documents going to come up in
18 dep — in testimony tomorrow?
19 AN UNIDENTIFIED SPEAKER: Tomorrow?
20 AN UNIDENTIFIED SPEAKER: Yes.
21 AN UNIDENTIFIED SPEAKER: I cant imagine how
22 they would.
23 AN UNIDENTIFIED SPEAKER: I dont think so.
24 AN UNIDENTIFIED SPEAKER: So ten we could
25 respond –
211
1 AN UNIDENTIFIED SPEAKER: I dont think so.
2 AN UNIDENTIFIED SPEAKER: Its not a decision
3 that would have to be made until in the morning.
4 THE COURT: I mean, Im prepared that I can
5 make the decision on Martino after we finish the questions,
6 so at least we could get that out of the way.
7 AN UNIDENTIFIED SPEAKER: That would be
8 great.
9 THE COURT: Okay.
10 AN UNIDENTIFIED SPEAKER: That would be
11 great.
12 AN UNIDENTIFIED SPEAKER: Is there any
13 possibility that we can steal an hour in the morning and
14 actually do some of these documents that we were going to
15 do this morning we never got to?
16 THE COURT: I guess were going to have to.
17 AN UNIDENTIFIED SPEAKER: Thats fine. Ill
18 be here whenever you want to –
19 AN UNIDENTIFIED SPEAKER: That we never got
20 to.
21 AN UNIDENTIFIED SPEAKER: I will be here
22 whenever you –
23 AN UNIDENTIFIED SPEAKER: I spent — only
24 because I want to make myself feel good. I — I was up
25 really late cutting back, and then I had my issues, but I
212
1 was — I was up really late cutting back the documents
2 significantly. So this is my — this is my best shot.
3 THE COURT: You know, the alternative, not to
4 waste trial time, is we could do it on Friday. Friday
5 afternoon.
6 AN UNIDENTIFIED SPEAKER: Its up to you.
7 AN UNIDENTIFIED SPEAKER: Whatever. I mean,
8 whatever (inaudible).
9 THE COURT: Well, that would also give me an
10 opportunity to read some of these briefs and maybe we can
11 get through all of the issues Friday afternoon.
12 AN UNIDENTIFIED SPEAKER: Whatever the Court
13 wants.
14 AN UNIDENTIFIED SPEAKER: Whatever youd
15 like, Your Honor.
16 THE COURT: Id rather do it Friday
17 afternoon.
18 AN UNIDENTIFIED SPEAKER: Okay.
19 AN UNIDENTIFIED SPEAKER: Okay.
20 THE COURT: Okay. These — let me just see.
21 If you could just start marking these. This is — where
22 did I leave off? This would be Court 8?
23 THE CLERK: Yes.
24 THE COURT: Okay. Court 8, Court 9, Court
25 10, and Court 11.
213
1 (An inaudible discussion too place
2 between unidentified speakers.)
3
4 THE COURT: One at a time while youre
5 marking Ill be (inaudible).
6 Yeah, just — just mark each page. All
7 right.
8 Okay. This is very long. Let — let me just
9 read the whole thing. Okay?
10 It has been presented to us that a form of
11 asbestos is mined in Turkey, erionite. This is not
12 imported in the USA, but my question is, what products are
13 produced from it in Europe? It was stated that this
14 asbestos is the most contaminated. If a product was made
15 similar to joint compound from this asbestos, would
16 short-term exposure be the equivalent to long-term exposure
17 to U. S. grade joint compound? Assuming if Mr. Picinic
18 were to use this European joint compound on one of his
19 relatives, friends and our neighbors homes, in Susic
20 (phonetic) –
21 MR. TERRY: Susac.
22 THE COURT: — Susac — obviously, theyre
23 paying more attention than I am — during one or many of
24 his trips to Susac, have given him sufficient exposure to
25 cause mesothelioma?
214
1 MR. TERRY: Great question.
2 MR. ROSEN: Well, I will say…
3 MR. TERRY: Perfect question.
4 THE COURT: Okay.
5 MR. ROSEN: Yeah. I mean…
6 THE COURT: I think that — I think –
7 MR. ROSEN: Do you understand the question?
8 THE COURT: I think the al — I think the
9 answer is there is no allegation that Mr. Picinic being
10 exposed to anything in Europe.
11 MR. ROSEN: Correct.
12 THE COURT: Yes?
13 MR. TERRY: Well, Your Honor, I think the
14 first question is whether or not Dr. Roggli is competent to
15 testify about whether or not erionite was used in tape
16 joint compound in Europe.
17 MR. ROSEN: Well, I –
18 THE COURT: I dont think it matters.
19 MR. ROSEN: This one — both sides opened on
20 that, frankly.
21 THE COURT: I — I believe Dr. Markowitz
22 mentioned erionite, too.
23 MR. ROSEN: Yeah.
24 MR. TERRY: Theres no question that erionite
25 has been mentioned, but the question assumes that erionite
215
1 is a component of tape joint compound.
2 THE COURT: But it doesnt matter because he
3 wasnt expo — its not imported into the U. S. –
4 MR. TERRY: Correct.
5 THE COURT: — its not used in anything in
6 the U. S., and its stipulated that he was not exposed to
7 anything while he was visiting in Europe.
8 MR. TERRY: I dont think its an appropriate
9 question.
10 MR. ROSEN: I would ask that the Court
11 instruct the jury as you just stated.
12 MR. TERRY: I –
13 UNIDENTIFIED SPEAKER: We dont know what the
14 exposures are in Croatia.
15 THE COURT: Well, I know we dont know, but
16 theres no allegation that he was exposed. Thats not part
17 of this case.
18 MR. ROSEN: Thats correct.
19 MR. TERRY: That is correct, but I dont know
20 that it is an established fact or it is a stipulated fact
21 that he was not exposed.
22 THE COURT: There is no allegation that he
23 was exposed to anything in Europe.
24 MR. ROSEN: We have no way of knowing.
25 MR. TERRY: Thats correct. You have not
216
1 made the claim.
2 MR. ROSEN: Croatia is nowhere near Turkey.
3 MR. TERRY: No.
4 THE COURT: What?
5 MR. ROSEN: Thats Turkey. Croatia is
6 nowhere near Turkey. Theres no — theres not even a –
7 MR. TERRY: Its as close to Susac –
8 MR. ROSEN: There is no –
9 MR. TERRY: — as any city is to New Jersey.
10 THE COURT: Right.
11 AN UNIDENTIFIED SPEAKER: Whats your point?
12 MR. ROSEN: Theres not even a scintilla of
13 evidence that that was even put in a product.
14 MR. TERRY: Your Honor, may I suggest that
15 the question just simply not be asked?
16 AN UNIDENTIFIED SPEAKER: It was in the
17 bottom of the boat.
18 MR. ROSEN: I would ask that –
19 THE COURT: My concern is — is that somebody
20 has this rumbling around in their head, and I would like to
21 cut it off immediately and say that its not relevant to
22 the — the case before us.
23 MR. TERRY: I have no objection if you say
24 the question is not relevant.
25 THE COURT: Whats the problem with me saying
217
1 that erionite was not imported into or used in any product
2 in the United States, and there is no allegation in this
3 case from either side that Mr. Picinic was exposed to
4 erionite while he was in Europe and they should not
5 consider this at all?
6 THE WITNESS: (Moved head up and down.)
7 MR. TERRY: Even Dr. Roggli is shaking his
8 head yes.
9 MR. ROSEN: Well, he testified because I
10 asked him the question — I asked him what are the other
11 causes. I said, Is there any of that in this case? And he
12 said, No. I mean, its already on the record.
13 MR. TERRY: That is right. I — yeah.
14 MR. ROSEN: So why cant we just repeat that?
15 MR. TERRY: Why dont we just — well, yeah.
16 Because — Im sorry. May I?
17 Dr. Roggli, do you remember whe — whether
18 you were asked and what you said?
19 THE WITNESS: Yeah.
20 MR. TERRY: What were you asked and what did
21 you say?
22 THE WITNESS: The question was, what were the
23 other causes of mesothelioma besides asbestos? And we
24 talked about radiation and we talked about chronic
25 inflammation in the — in the pleura and the peritoneal
218
1 cavity, and we talked about erionite. And then the
2 question was asked that theres not any evidence in this
3 case of any of those exposures, and I said, Thats correct.
4 MR. TERRY: Fine. I agree. That question,
5 that answer.
6 THE COURT: Fine. Then Ill ask Dr. Roggli
7 the question. Yes?
8 THE WITNESS: Sure.
9 THE COURT: Okay.
10 Okay. The second question on the same page:
11 What — what type of asbestos is used in the products we
12 use daily that is safe to use?
13 AN UNIDENTIFIED SPEAKER: I dont blame them.
14 THE COURT: I think that question may just go
15 in the category of there were some questions that werent
16 relevant, so Im not asking them.
17 MR. TERRY: Okay. Im hoping that one goes
18 in that category.
19 THE COURT: Yes. Okay.
20 All right. Now Im looking at Court 9.
21 Okay. What type of asbestos fiber did you see upon
22 examination of the slides provided to you for John Picinic,
23 if you saw any at all?
24 MR. ROSEN: Thats fair.
25 MR. TERRY: I think its an appropriate
219
1 question.
2 THE COURT: Yes? Okay.
3 MR. ROSEN: Im not sure those are the kind
4 of slides (inaudible) for asbestos.
5 AN UNIDENTIFIED SPEAKER: Thats the answer.
6 THE COURT: Well, thats the answer.
7 THE WITNESS: Thats the answer.
8 THE COURT: Thats the answer.
9 MR. ROSEN: Thats fine. Okay.
10 THE COURT: I had that question, too, but
11 then I heard other testimony about the slides and I
12 realized what the answer was. Okay.
13 Have you seen any cases in animals or humans
14 where peritoneal mesothelioma was caused by chrysotile not
15 contaminite — contaminated by tremolite?
16 I think thats a fair question.
17 MR. TERRY: I agree its a fair question.
18 MR. ROSEN: All right.
19 THE COURT: Have you done studies where the
20 peritoneal tissue was examined instead of the lung tissue
21 in a patient or animal with peritoneal mesothelioma? If
22 not, why not? If so, what type of fibers did you see on
23 the peritoneal mesothelioma?
24 MR. TERRY: I think its an appropriate
25 question.
220
1 THE COURT: I do, too.
2 AN UNIDENTIFIED SPEAKER: Sounds like
3 cross-examination.
4 THE COURT: If you knew that a scan — Im
5 going to consider silence to be no objection, just so
6 youre aware of that. If you dont speak up, the question
7 is passed and approved without objection.
8 MR. ROSEN: I — I learned from the end of
9 the day yesterday how to handle this time of the day.
10 THE COURT: Okay. If you knew that a
11 scanning electron microscope wouldnt be able to identify
12 all chrysotile fibers, why didnt you also use a TEM in
13 addition to the SEM in your study to make it more
14 comprehensive?
15 THE WITNESS: Good question.
16 THE COURT: Fair question.
17 THE WITNESS: Yes.
18 THE COURT: Okay. Court 10, in the doctors
19 opinion, does chrysotile asbestos cause mesothelioma?
20 I mean, it is repetitive.
21 MR. ROSEN: Ive got to — I have to say I am
22 going to object to that. And the reason Im going to
23 object, frankly, is because the entire — it gets to the
24 point where youre asking a question that is basically the
25 last three hours of examination.
221
1 THE COURT: I know.
2 MR. ROSEN: You have him answer that, he
3 could answer that in ten minutes, he could answer it in a
4 minute, he could answer it in an hour. I can cross for an
5 hour. It gets ridiculous and I am objecting to it.
6 THE COURT: Excuse me. As I previously
7 testified, yes, that is my opinion?
8 THE WITNESS: The opinion is that — the
9 question again is? Oh, yeah. Okay. Yeah. Thats fine.
10 THE COURT: In other words, a one-word — a
11 one-sentence answer.
12 MR. ROSEN: Just a one-word, one-sentence
13 answer, fine.
14 THE COURT: Okay.
15 THE WITNESS: Whos going to testify? Read
16 the transcript.
17 MR. TERRY: Dont –
18 THE COURT: Please dont say that.
19 MR. ROSEN: And then Ill start my
20 cross-examination all over, and Ill bring in a map. Ill
21 bring in a six-areas map.
22 THE COURT: Oh, please.
23 Okay. Ready?
24 Can a human…
25 MR. TERRY: Objection.
222
1 THE COURT: I — I — I — no. I just — I
2 could read it exactly as its stated, but I know that there
3 is something misspelled. Okay.
4 MR. TERRY: We — we — we do not object to
5 your editorial.
6 THE COURT: Okay. Im going to read it as
7 its stated because I cant figure it out.
8 MR. TERRY: Okay.
9 THE COURT: All right. Can a human-respired
10 Calidria chrysotile travel further than the lung?
11 MR. ROSEN: Yeah.
12 MR. TERRY: Yes, I — do you understand the
13 question?
14 AN UNIDENTIFIED SPEAKER: Can a
15 human-respired –
16 MR. TERRY: No objection, Your Honor.
17 MR. ROSEN: No objection.
18 THE WITNESS: Meaning breathe in. Breathing
19 in, it goes beyond that.
20 MR. ROSEN: We — right. We all understand
21 it, Your Honor, and I think we have no objection to it.
22 MR. TERRY: The answer is yes.
23 THE COURT: I dont understand it.
24 MR. ROSEN: In other words, you say when your
25 — when –
223
1 MR. TERRY: The question is, can a human
2 inspire or breath in Calidria and have that Calidria leave
3 the lung.
4 THE WITNESS: Go beyond the lung. Other –
5 other parts of the lung.
6 THE COURT: Okay. I get it. All right.
7 Okay. What type of asbestos fibers are found
8 in the pleura and peritoneal mesothelia tissue? Peritoneum
9 mesothelia tissue.
10 MR. ROSEN: You know, the problem is that
11 although theyre relevant questions, you know, there was a
12 couple — many hours of testimony and what you are going to
13 do is open up –
14 THE COURT: I understand that, but, you know,
15 obviously, you have jurors that need clarification, and one
16 of the purposes of this exercise is to provide them with
17 clarification. So unless there is some real objection to
18 the question, like its not in this case, its not
19 relevant — if it is simply repetitive, my position would
20 be we ask it because the juror needs clarification.
21 MR. ROSEN: I object. May I, Your Honor?
22 I do have an objection only in the sense that
23 Im frankly — I mean, it seems like an extremely broad and
24 vague question. Im not — Im frankly not sure what they
25 mean when they say when you examine the tissues when. Are
224
1 they talking about studies? Are they talking about — I
2 object. I think its vague.
3 THE COURT: Well, I cant tell you that — do
4 you understand the question, Doctor?
5 THE WITNESS: Yes, maam.
6 THE COURT: Okay. What human-body-produced
7 acid or fluids can dissolve chrysotile asbestos fibers?
8 THE WITNESS: Good question.
9 THE COURT: Okay. How long — thank you very
10 much. Youre being very helpful in evaluating this.
11 How long would it take to dissolve the fibers
12 from question four?
13 THE WITNESS: Good question.
14 THE COURT: Would the fibers from question
15 four be dissolved in the lungs, stomach or intestines?
16 THE WITNESS: Yes.
17 THE COURT: Okay. Court 11, in your opinion,
18 does chrysotile have a greater tendency to translocate from
19 the lungs than other types of asbestos fibers?
20 Reasonable question.
21 Does the body have defense mechanisms to
22 remove fibers once they reach the peritoneum? Is this the
23 case — is this the case in both long and short fibers?
24 AN UNIDENTIFIED SPEAKER: Thats a good
25 question.
225
1 THE COURT: To a reasonable approximation, do
2 more experts agree or disagree with your statement that
3 chrysotile does not cause peritoneal mesothelioma?
4 MR. ROSEN: Object to that. I dont believe
5 thats a proper question for him to testify to. Counsel
6 can present his side of it. We can present our side to it.
7 But its not the proper realm of expert opinion what
8 numbers agree more or dont agree more.
9 THE COURT: Well, I think the issue here is
10 there were a series of questions and — and, frankly, I
11 think they were asked by you, Mr. Rosen, on
12 cross-examination, where you were making inquiry as to
13 whether this particular doctor agreed to (inaudible) it –
14 and I remember — I remember it a few times and I remember
15 it specifically with respect to the book with the two X –
16 two — with the two authors of the one article — or the
17 one author Friedman who is in — whose article is in the
18 book edited by the two other individuals. And you were
19 asking him if those two — dont you know that those other
20 two individuals disagree with you?
21 MR. ROSEN: No. Actually, what happened,
22 Your Honor, was on redirect examination counsel brought up
23 the book for the proposition that those two people agreed
24 with the doctor in terms of what he was saying. And what I
25 went into on recross was to point out that even though the
226
1 article had said that, they didnt write the article, and
2 he knows that they have testified differently. Thats what
3 happened.
4 MR. TERRY: I think by examination it has
5 become a fair area of inquiry as to the conventional wisdom
6 of consensus, which is what the (inaudible).
7 THE COURT: Right. So do you think he should
8 be asked this question or not?
9 MR. TERRY: I do think he should be asked the
10 question.
11 MR. ROSEN: I object to him being asked that
12 question. I think that both sides can present the
13 substance of what they say (inaudible) Court to say, but I
14 dont think its proper for him to do a — the expert to do
15 a number count and say, More do, more dont. I dont
16 believe thats a proper area of cross-examination.
17 THE COURT: Well, you can cross-examine him
18 on that. Im going to ask the question.
19 All right. Can you bring the jury back in?
20 And Im going to phrase it a little bit
21 differently. Im going to say, Do you know whether…
22 What? Well, were going to have to change
23 the tape.
24 AN UNIDENTIFIED SPEAKER: (Inaudible.)
25 THE COURT: Okay.
227
1 (The witness resumed the stand and the
2 jury returned to the courtroom.)
3
4 THE COURT: All right. Everyone please be
5 seated.
6 Again, youre all asking wonderful questions.
7 There are a few questions that really arent relevant to
8 this case, that they would go into matters outside the
9 scope of what is being presented and what you are being
10 asked to decide in this case. So those few questions Im
11 not going to ask, not because they werent good questions,
12 just because they werent relevant to whats going on here.
13 But I am going to ask the remaining questions, so we will
14 start with those. All right?
15 MR. TERRY: Yes, Your Honor.
16 THE COURT: And counsel, both plaintiffs and
17 defendants, will have an opportunity at the end of the
18 asking and responding to all of the questions to conduct
19 appropriate examinations specifically with respect to the
20 subject matter of the questions and the answers.
21 MR. TERRY: Thank you, Your Honor.
22 THE COURT: It has been presented to us that
23 a form of asbestos is mined in Turkey, erionite. This is
24 not imported in the USA. But my question is, what products
25 are produced from it in Europe? It was stated that this
228
1 asbestos is the most contaminated. If a product was made
2 similar to joint compound from this asbestos, would
3 short-term exposure be the equivalent to long-term exposure
4 to U. S. grade joint compound? Assuming, if Mr. Picinic
5 were to use this European joint compound on one of his
6 relatives, friends and/or neighbors homes in Susac
7 during one or many of his trips to Susac, had given him
8 sufficient exposure to cause mesothelioma.
9 THE WITNESS: The exposures that I would –
10 had referred to earlier to erionite were entirely
11 environmental. Theres no evidence Im aware of that that
12 material was ever used in any product that was sold
13 anywhere, and theres no evidence in this case that — that
14 Mr. Picinic was supposed to erionite-containing products.
15 THE COURT: What type of asbestos fiber did
16 you see upon examination of the slides provided to you for
17 John Picinic, if you saw any at all?
18 THE WITNESS: The — the tissue that we
19 studied looking for asbestos content in his lung tissue,
20 which was not sampled in this case, all that was sampled
21 was tumor tissue. And because tumor is a process which
22 starts out from a single cell and grows and multiplies and
23 multiplies, whatever fiber was there initially is going to
24 be diluted out so much you wont see it.
25 So when we looked at the slides of the tumor
229
1 we didnt see any fiber type, and you would not expect to
2 in looking at the slides that were prepared from the tumor
3 tissue.
4 THE COURT: Have you seen any cases in
5 animals or humans where peritoneal mesothelioma was caused
6 by chrysotile not contaminated by tremolite?
7 THE WITNESS: In the experimental animal
8 studies that were done, those by and large used Canadian
9 chrysotile, which is to one degree or another contaminated
10 with tremolite. But theres no evidence that that low
11 tremolite contamination in those experimental animals
12 caused the mesothelioma.
13 So the answer is, in animals yes. In humans
14 theres no convincing cases, in my opinion.
15 THE COURT: Okay. Have you done studies
16 where the peritoneal tissue was examined instead of the
17 lung tissue in a patient or animal with peritoneal
18 mesothelioma? If not, why not? If so, what type of fibers
19 did you see on the peritoneal mesothelioma?
20 THE WITNESS: We have not done those sorts of
21 tissue analyses in my laboratory. Other — others have
22 done it. And, in my opinion, what the literature shows is
23 that what accumulates in the lung is what drives what gets
24 to other places.
25 So if you have one particular fiber type
230
1 predominating in the lung, thats the fiber type that
2 predominates in the pleura, thats the fiber type that
3 predominates in the peritoneum. If youve got two
4 different types of fibers in the lung youll find two
5 different fiber types in the pleura, youll find two
6 different fiber types in the peritoneum.
7 So the purpose of our analyzing the lung
8 tissue is to find whether that individual was exposed to a
9 different amount of asbestos than you or I might have been
10 exposed to.
11 THE COURT: Dr. Roggli, if you knew that a
12 scanning electron microscope wouldnt be able to identify
13 all chrysotile fibers, why didnt you also use a TEM in
14 addition to the SEM in your study to make it more
15 comprehensive?
16 THE WITNESS: Any sort of an analytical
17 technique is a compromise technique that tries to optimize
18 what youre doing in a particular situation.
19 The reason we used SEM from the very
20 beginning is that the greatest amount of data available on
21 people exposed to asbestos was from counting asbestos
22 bodies with a regular light microscope. And by using a low
23 magnification of approximately 1,000 X SEM, we could
24 accurately count asbestos bodies and uncoated fibers of –
25 of a certain size, five microns or greater in length. And
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1 so we could directly compare what we were seeing with the
2 SEM with what was present with the light microscopy
3 asbestos body counts for which there is a lot more data.
4 There is a possibility — and certainly we do
5 miss some fibers. But the question is, because Canadian
6 chrysotile is contaminated with tremolite, which stays
7 around for long periods of time and its a relatively fat
8 fiber, and because if you have some thin fibers youre also
9 going to have some thick fibers, are there going to be
10 cases where I would say theres no increased chrysotile at
11 all with my studies and somebody else would find increased
12 chrysotile with TEM. Thats a theoretical possibility, but
13 Ive never seen such an example.
14 And in the case which Dodson and Hammer tried
15 to publish as an example it really wasnt because they
16 found their fibers were chrysotile, but we — as elevated,
17 but we found elevated chrysotile by the SEM in the same
18 case.
19 So because you will see the thicker
20 chrysotile fibers and you will see the contaminated
21 tremolite with the SEM, then the chances of us missing a
22 significant chrysotile exposure is much diminished.
23 THE COURT: All right. Dr. Roggli, in your
24 opinion, does chrysotile asbestos cause mesothelioma?
25 THE WITNESS: Chrysotile asbestos certainly
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1 can and does cause mesothelioma in experimental animals.
2 Chrysotile dust, that is contaminated with tremolite, in
3 sufficient doses, causes pleural mesothelioma in humans. I
4 dont think we have sufficient scientific information to
5 say that pure, uncontaminated — uncontaminated chrysotile
6 causes mesothelioma in humans.
7 THE COURT: Can a human-respired Calidria
8 chrysotile travel further than the lung?
9 THE WITNESS: Yes. If — if I understand the
10 question, I think what is being asked is that if you
11 breathe some Calidria chrysotile in the lung, can it get
12 out of the lung and move to other places. And as the
13 fibers break down into these fibrils, they can get into the
14 blood stream and — and — and — and travel to any part of
15 the body. They can even be excreted in the urine. Thats
16 been found, for example. They can also end up in
17 lymphatics and be cleared out through the lymphatics. They
18 can also stay in the pleura or in the peritoneum until they
19 dissolve, which is a question I think well get to later.
20 THE COURT: What type of asbestos fibers are
21 found in the pleura and the peritoneum mesothelia tissues?
22 THE WITNESS: The types of fibers that you
23 find there depends upon whats in the lung because whats
24 in the lung thats breathed in drives what gets to the
25 pleura and drives what gets to the peritoneum.
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1 THE COURT: What human-body-produced acids or
2 fluids can dissolve chrysotile asbestos fibers?
3 THE WITNESS: Theres a lot of different
4 parts of the body that have relatively low pHs. Theres a
5 — a type of cell in the body which is the garbage
6 collector cell of the lung, the macrophage, and its job is
7 to destroy any foreign material that it can. And it
8 contains tiny structures within that cell called lysosomes,
9 which have a low pH of about four. Neutral pH is seven.
10 And if you get lower than seven then youre on the acid
11 side. And so a lower pH of four is an acid environment.
12 And how fast it takes to dissolve a fiber depends upon the
13 diameter of the fiber.
14 My recollection is that for a chrysotile
15 fiber thats about .15 micron in diameter. Bernsteins
16 studies showed that that will dissolve in — in several
17 months within the macrophage at a pH of 7.4. And the
18 fibers can sit — in the macrophages the fibers sit there
19 for long periods of time until they dissolve. In the
20 stomach the pH is even lower. The pH is one. So its very
21 acid in the stomach. But things are passing through
22 relatively quickly, so youll have some dissolution of
23 fibers in the stomach, but not enough to make them
24 completely dissolve. It wont stay there long enough. It
25 passes on into the small intestinal tract where the pH is
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1 neutral. And you wont get any dissolving from being in
2 the — in the — in the small intestine and — and in the
3 colon.
4 THE COURT: All right. How long would it
5 take to dissolve the fibers from question four?
6 THE WITNESS: And I think I answered that.
7 It depends upon the diameter of the fiber. A fiber thats
8 about .15 micron in diameter in a macrophage will dissolve
9 in about three months, is my recollection.
10 THE COURT: Would the fibers from question
11 four be dissolved in the lungs, stomach or intestines?
12 THE WITNESS: And the answer would be in the
13 lungs. They — they dont — they dont stay long enough
14 in the stomach to be dissolved there. And in the — in the
15 — in the small intestine and in the colon the pH is wrong
16 for them to be dissolved there.
17 THE COURT: Okay. Dr. Roggli, in your
18 opinion, does chrysotile have a greater tendency to
19 translocate from the lungs than other types of asbestos
20 fibers?
21 THE WITNESS: I dont think that theres
22 really good evidence for that. I think that, as I have
23 indicated before, its the — its the fiber types in the
24 lung that drives what gets to the — the other locations.
25 So if the main type of fiber in the lung is amosite, the
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1 main type youre going to find in the pleura will be
2 amosite. If the main type is chrysotile, the main type
3 youll find in the pleura will be chrysotile. And thats
4 the same for the abdominal cavity, too.
5 THE COURT: Okay. Does the body have defense
6 mechanisms to remove fibers once they reach the peritoneum?
7 Is this the case in both long and short fibers?
8 THE WITNESS: Yes. Thats another good
9 question. The — the macrophages that I talked about in
10 the lung are not just located in the lung. Theyre
11 throughout the body. You can find them in the — in the
12 liver, in the spleen, in the abdominal cavity. So to the
13 extent that fibers get to the abdominal cavity and a
14 macrophage comes along and engulfs it, then it would take
15 the same amount of time for it to dissolve there as it
16 would for a macrophage that engulfs it in the lung.
17 So let me say Im not sure if I answered all
18 that question. Whats — what did the question say again?
19 THE COURT: Does the body have defense
20 mechanisms to remove fibers once theyve reached the
21 peritoneum? Is this the case in both long and short
22 fibers?
23 THE WITNESS: And — and the more important
24 thing as far as dissolution rate is not the length of the
25 fiber but its diameter. However, there is — as far as the
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1 lung is concerned, theres good data to show that the long
2 fibers are much harder to remove from the lungs than –
3 than the short fibers are. It takes a longer period of
4 time.
5 For chrysotile, as we indicated earlier, the
6 fibers initially break into thinner fibers, but then they
7 start breaking transversally into shorter fibers as well
8 after a year, and then they — and then after that time
9 that you can dissolve them just as if they had been short
10 fibers initially.
11 THE COURT: To a reasonable approximation, do
12 you know whether more experts agree or disagree with your
13 statement that chrysotile does not cause peritoneal
14 mesothelioma?
15 THE WITNESS: I think the answer to that
16 question is I — Ive not done a formal survey of that. My
17 impression based on talking to my colleagues at meetings
18 and reading whats in the literature is that more — more
19 individuals would think that chrysotile does not cause
20 peritoneal mesothelioma than individuals who are experts in
21 the area think that it does. However, I think that based
22 on a survey depends on who is asking the questions, as you
23 can tell from the surveys about who won the last
24 presidential debates.
25 MR. ROSEN: Do I go, Your Honor?
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1 THE COURT: I — I — I –
2 MR. ROSEN: Is that how we do it? Im just
3 not sure.
4 THE COURT: I — I dont remember, but you
5 can go first, Mr. Rosen.
6 MR. ROSEN: I just really have a couple of
7 questions.
8 THE COURT: Fine.
9
10 EXAMINATION
11
12 BY MR. ROSEN:
13 Q. Dr. Roggli, one of the questions that was
14 asked of you was — and I may be getting this wrong. I
15 apologize. But I thought there was a question asked about
16 fibers being found on the peritoneum and in the pleura, and
17 your answer was, Whats found there is driven by whats in
18 the lungs. Do you recall that question and that –
19 A. Yes.
20 Q. — answer?
21 And Im not — I actually heard — read the
22 question differently. I thought the question was asking do
23 they find fibers in the peritoneum and in the pleura and
24 what kind. Im — Im not sure if that was the question or
25 not. But do you understand the distinction that Im
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1 making?
2 A. Yeah. But the an — the answer is — is –
3 is both, except to the extent that once the chrysotile
4 fibers get to any tissue they can be dissolved over time,
5 whereas the amphiboles dont. Still what you find in the
6 lung, that the same thing is happening there, theyre being
7 — the chrysotile fibers are being dissolved in the lung,
8 theyre being dissolved in the peritoneal tissues or in the
9 pleural tissues or being cleared out by lymphatic routes
10 from the lung or the — so its basically the same thing.
11 What you find in the lung is what youre going to find in
12 the other locations.
13 Q. And thats — I just want to make sure its
14 clear to the jury because I think –
15 A. Sure.
16 Q. I — I thought — at least I thought thats
17 what they were asking is, in other words, those types of
18 fibers are found in the pleura and the peritoneum as well
19 as in the lung; is that correct?
20 A. Yes, sir.
21 Q. Okay. The only other question I want to ask
22 you because you — you went on at some length about the
23 microscope and that whole issue. Dr. Jerrold Abraham, are
24 you familiar with him?
25 A. Yes.
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1 Q. And hes — he does work — the same kind of
2 work that youre doing in terms of looking at samples and
3 looking for numbers of fibers; is that correct?
4 A. To some degree, yes.
5 Q. Do you know that hes looked at filters or
6 samples that youve examined where youve looked for
7 chrysotile? Is that correct?
8 A. Yes.
9 Q. Hes used a higher magnification on his
10 microscope; is that correct?
11 A. Yes.
12 Q. And youre aware that hes found a number of
13 chrysotile fibers that you did not find using your
14 technique; is that correct?
15 A. Hes — hes claimed that. And in some of
16 the cases I would agree that the fibers he found were
17 chrysotile, but many of them I would disagree with his
18 conclusion that theyre chrysotile.
19 Q. Okay. And just so its clear what youre
20 saying, in some of the cases you agree with him where he
21 says hes finding more fibers than you and in other cases
22 you have a legitimate disagreement with him; is that
23 correct? Is that fair?
24 A. Yeah. Yes. And — and to be fair, what
25 Dr. Abraham, I think, did not do was to look at control
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1 cases in the same way, because if you looked at the control
2 cases the higher magnification you look the more fibers
3 youre going to find there as well.
4 MR. ROSEN: Thank you very much.
5 THE COURT: All right. Mr. Terry?
6 MR. TERRY: Just one. Maybe two.
7
8 EXAMINATION
9
10 BY MR. TERRY:
11 Q. What do you mean control cases?
12 A. Well, in control cases what you have to do is
13 collect cases in your laboratory that have not been exposed
14 to asbestos as far as we can tell from our histories and
15 physical examinations and do not have any asbestos-related
16 disease. And then you can measure whats in their tissues
17 and then you compare your cases with that.
18 Dr. Abraham doesnt have any controls. He
19 depends on his controls for another laboratory using
20 another technique, TEM, and hes using the SEM. And the –
21 the study, the international interlaboratory counting trial
22 that I participated in and published its results in 1985 or
23 1986, says thats a no-no, you cant do that, you shouldnt
24 do that.
25 MR. TERRY: I have nothing further, Your
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1 Honor.
2 MR. ROSEN: Nothing further.
3 THE COURT: Nothing further.
4 MR. TERRY: May the witness be excused?
5 THE COURT: Yes, the witness may be excused.
6 Thank you.
7 And may I just see counsel for one minute
8 before I excuse the jury?
9
10 (Witness excused.)
11
12 (Whereupon, the testimony of Dr. Roggli
13 was concluded at 4:43 p.m.)
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1 CERTIFICATE OF COURT REPORTER
2
3 I, Kathleen Beard Adams, RPR, CCR, Shorthand
4 Reporter, certify that I recorded verbatim by Stenotype
5 from a digital versatile disk, to the best of my ability,
6 the testimony of Dr. Victor L. Roggli in captioned cause.
7 I further certify that to the best of my
8 knowledge and belief the foregoing transcript constitutes a
9 full, accurate and complete transcript of said testimony.
10 Given under my hand this 19th day of January,
11 2009, at Virginia Beach, Virginia.
12
13
14
15
16 ___________________________
17 Kathleen Beard Adams
18 Certified Court Reporter No. 0313086
