The industrial hygiene foundation was an industry sponsored organization that supplied asbestos companies with information concerning the dangers of asbestos from the time of its formation in the 1930s through the 1970s. The organization conducted medical research and disseminated the results to industry sponsors. The following deposition provided by a noted historian in a New York mesothelioma trial details thisknowledge.
SUPREME COURT OF THE STATE 4F NEW YORK
COUNTY OF NEW YORK : I .A .S . TERM : PART 17
a _ _ _ _ _ _ _ _ _ e _ _ ..
IN RE :
N .Y .C . ASBESTOS LITIGATION AS RELATES TO :
MA12IO MALTESE, ET AL,
w _ _ _ _ _ _ _ _ _ – - – - – - – - x
July 15, 1993
S E F Q R E :
HON . WALTER M . SCHACi{MAN,
Justice, and a Jury
(APPEARANCES AS HERETOFORE NOTED .)
DUPLICATE
FILE COPY
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Markawitz – by plaintiff – Direct
examined and testified as follows :
THE CLERK : May I please have your
full name?
THE WITNESS : Gerald, G-e-r-a-1-d, E .
Markawitza M-a-r-k-o-w-i-t-z .
THE CLERK* Home address, please .
THE WITNESS : 260 West 97 Street, New
York, 14425 .
DIRECT EXAMINATION
BY MR . PLACITELLA :
Q Good morning, Dr . Markowitz, how are you?
A Good morning .
Q Ill ask you to keep your voice up because
~of the air conditioners . I dare not approach you
because Ive bean subject to mishaps in the last
(couple of days, so Im going to stand right here and
just ask that you speak as loudly as you can .
Now, you currently live in New York
City?
A Yes, I do .
Q Are you a lifelong resident of New York?
A No, I am not .
Q Where did you grow up?
A I grew up in the Bronx and –
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Markawitz – by Plaintiff – Direct
THE COURT : Thats part of New York
State .
THE WITNESS : But then I moved out of
New York .
Q You mooed out of New York for a time?
A S moved out of New York to go to college
and graduate school, and there T lived in New Jersey
for approximately 18 years or so .
Q And now youve came book .
A Now Ive come back .
Q And where do you currently work?
A I work at John Jay College of Criminal
Justice, which is part of the City University of New
York,
Q How long have you worked there?
A Ive worked there fag 23 years .
Q And what do yoga do at John Jay College,
whats your job?
A I am a professor of history at John Jay
College .
¢ Flow long have you taught history at John
Jay College?
A For the same 23 years .
Q Do you have any other appointments at any
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Markawitz – by Plaintiff – Direct
other uni versities currently?
A I am also part of the faculty of the
Graduate Center of the City University of New York .
Q Are you currently teaching at the –
A No, Z am nab currently teaching .
g whats an appointment?
A It means I am considered to be of
scholarly worth to be able to teach at — to teach
graduate students .
Q It is goad for them to have you on their
rolls, is that basically it?
A Yes .
Q Could you dell the jury what your
education al background is?
A Z have a bachelors degree from Earlham
College, which is in Indiana, anti a masters degree
and a Ph . D . from the University of Wisconsin .
Q What is your bachelors degree in?
A History .
Q What is your masters and your Ph .D . in?
A Both of those are in history as well .
Q And what was your thesis in?
A My thesis was in American foreign policy .
Q I call you Dr . Markowitz out of respect
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Markawitz – by Plaintiff – Direct
because youre a Fh .D . You are not a medical
doctor, is that true?
A Z am got a medical doctor .
Q Nom, have you ever conducted any
historical research yourself?
A Yes . For the entire dime that T have been
working at John Jay College, 2 have been conducting
historical research .
Q And what kind of historical research have
you done?
A Over the past 8 to 10 years I have been
working on the history of occupational safety and
health,
4 And have you done any other work other
than that in the area of your specialty, history?
A Yes . Prior to that I worked far
lapproximately 10 years an various federal mural and
~sculpture projects that were sponsored during the
I!great depression .
Q In feat, one of the projects had to do
with the mural right downstairs .
A Thats correct .
Q Now, the last 10 years youve concentrated
on the history of occupational safety and health, is ,
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Markowitz – by Plaintiff – Direct
that correct?
A Thats correct .
Q Have you ever received any grants fox
historical research?
A Yes . The National Endowment for
Humanities has
Q Whats a grant, before we start?
A A gram 3s manes that is given to my
institution, to John Jay College, to hire
replacements for me so that I could spend the time
doing research and nab do my beaching .
Q Who has given grants so you could go out
and do historical research, what organization?
A The federal government gave me grants,
which is the National Endowment for Humanities . In
addition, the university has given grants to support
travel for research and xeraxinq .
Q Now, have you ever published any articles
as a result of the historical research that youve
done?
A Yes . Ive published several articles .
Q And could you give us an approximate idea
of what they deal with?
Bid any of the articles that youve
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Markowitz – by Plaintiff – Direct
published deal with the history of occupational
safety and health?
A Yes, several of the articles deal with the
history of occupational safety and health .
Q Have yon mover published any books relating
to occupational safety and health?
A Ive published three backs relating to the
history of occupational safely and health .
Q All right . I see Mr . Cairns has gone
through the trouble of going to the library and
getting a couple of your books . Ts this one of your
books, Dying Far Work?
A Yes, that is one of my books .
Q Whats this book about?
A This book is a collection of essays by
myself and other historians dealing with various
aspects of the history of occupational safety and I
I health .
Q This says that it came from the New York
Public Library . Then another book is called Deadly
Dust . Did you author this book as well?
A Yes, co-authored that book .
q What does this book deal with, Deadly
Dust?
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Markowitz – by Plaintiff – Direct
A That back deals with the history of
silicoses, which is an occupational disease, and it
covers the period from the late 19th century to the
present .
MR . PLACITELLA : For the record, it
is dram the Science Department of the
Mid-Manhattan Library .
g 3o if anyone wanted to find the things you
published they need only go to the library .
A Thats correct .
Q Now, in your bank — both of your books,
you have a coauthor, David Ras.ner . Who is David
Rosner?
I, A David Rosner is also a professor at the
,City University of New York . He teaches at Baruch
College and also at the Graduate Center .
I
g What is his educational background, if you
know?
A He has a masters in public health from the
University of Massachusetts, and a Ph .D . in the
history of science from Harvard University .
Q And why is it that you and Dr . Rosner
collaborated is these publications?
A Dr . Rashers specialty is in the history
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Markawitz – by Plaintiff – Direct
of public health and history of medicine ; my
specialty is in the history — social history and
intellectual history, so its a combination . Were
looking at the history of occupational health not
simply in medical terms, but also how it relates to
workers and industry and insurance companies, a wide
view of these areas .
how, what — in putting together these
books, Deadly Dusk , and your articles, the book,
Dying For Work , and the articles, what historical
methods do you employ? What do you do? How do you
get to the final product?
A Wall, we begin by reading books that have
already been published and articles that have
already been published about the subject matter that
were interested in, for instance occupational lung
diseases .
We would also then go to libraries
that have what historians call primary sources, the
documents themselves that are generated by either
the insurance companies or unions or industry about
these subject matters, and we go through those
document collections, which are often quite
extensive, and select the relevant documents, and
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Markowitz – by Plaintiff ° Direct
then collect all of those documents and tell a
coherent story about the subject matter that were
concerned with .
Q You say insurance . You mean the
IIMetropolitan Life Insurance Company is one?
A Thats right .
Q Thats a life insurance company,
A Right .
Q Now, are you familiar with an organization
known as The Industrial Hygiene Foundation or
industrial Health Foundation?
A Yes, I am .
I
I Q And when is the first time that you came
i
into contact with any information concerning The
Industrial Hygiene Foundation? i
A I would say probably about six or seven I
lyears ago in the course of our research about
!~silicosis we found references to the Industrial
IHygiene Foundation and its prior name, The Air
Hygiene Foundation, anri d attempted to find out more
Ilabout it because it seemed to be very important in
the history of occupational health .
Q And have you in fact commented on The
Industrial Hygiene Foundation in any of your prior
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I Markowitz – by Plaintiff – Direct
publications?
A Yes . In Deadly Dust we have quite a bit
of analysis and discussion of the Industrial Health
Foundation and The Industrial Hygiene Foundation .
Q At same point in time in the not too
,recent past, did I game to visit you to ash you to
~do research, further research concerning the history
of the Industrial Hygiene Foundation?
i A Yes, you did . i
Q And did you do that research at my I
(request?
A Yes, you did .
I
Q And did you use the same historical
methods of conducting that research or extensive
research that you used in patting together the
,various books and articles that you published in the
past?
A Yes, we did .
Q Could you tell the jury, in conducting
your research did I also ask you to research the
history of something known as The Kon3cide Club .
A Yes, you did .
q Can you tell the jury what sources, what
did you do, where did you go, what did you look at
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Markawitz – by Plaintiff – Direct
1-in conducting your historical research concerning
The Industrial Hygiene Foundation and/or The
Koniaide Club?
A We wept to first libraries that were in
New York, wend to the New York Public Library, we
went to the Columbia University library, we went to
a specialized engineering library on 47 street, and
then in addition, we wend to the national archives
and looked through the records of the united States
Public Health Service and the United States Bureau
of Mines where we had seen some reference to it
being involved in the Industrial Hygiene Foundation,
and we also went to Pittsburgh, which was the
headquarters for The Industrial Hygiene Foundation,
and examined their records at both the University o£
Pittsburgh and at the Mellon Institute .
Q Is it fair to say you reviewed numerous
Idacuments, doctor?
A Very, very many documents .
Q Far too many to bring with you today?
A Yes, hundreds if not thousands of
documents .
Q Now, the national archives, thats in
Washington, correct?
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Markowitz – by Plaintiff – Direct
A Thats correct .
Q And daring the — is the information that
you found and looked at the kind of information
relied upon by experts such as yourself in farming
historical opinions?
A Absolutely .
Q And you put a lot of time into this for me
over the last eight or nine months, true?
A Thats correct .
Q And I compensated you for your research
time?
A Yes, you did .
Q And you are being compensated for your
testimony here in court .
A Thats correct .
Q And haw did the income that you received
in terms of the last year compared to other years as
it relates to doing work far say lawyers? Have you
ever done work for lawyers before that?
A Never had done work for lawyers before .
Q It wasnt that unpleasant an experience,
was it, doctor?
A No, research is research .
Q And did you reach opinions about how the
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Markoxitz – by Plaintiff – Direct
(YHF and The Konicide Club came about and what its
(purposes and goals were?
A Yes, I did .
I Q And, doctor, when you testify here before
the jury, Z would ask that you state all your
opinions within a reasonable degree of certainty
within the confines of your disciplines . Do you
junderstand that?
A YES .
Q Now, doctor, youre not here to give any
expert testimony about the history of asbestos
disease or the historical literature on asbestos
disease, are you?
A No, z am not .
And youve never primarily published in
the area of asbestosis. or other asbestos lung
disease?
A No, I have nod .
Q Now, you understand that your testimony is
limited to historical origin and purposes of The
,Konicide Club and The Industrial Hygiene Foundation
and its predecessors?
A Yes, I understand that .
Q Thats why I ask you focus your attention
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Markowitz – by Plaintiff – Direct
on that . Now, what is The Konicide Club?
A The Konicide club was a group of
researchers, scientists, who were concerned about
dust and dust diseases in the early 1930s .
Q And in the course of your research, was
there a lot of information available about The
Konicide Club?
A There is very little information available
about The Konicide Club .
Q What did you find in doing your research,
which kind of information?
A There was an article that was published I
think in 1972 by two of the participants in the
Konicide Club that gave a brief history of The
Konicide Club . Thai. was the major piece of
information that we used .
Q And did Y also supply you with a couple of I
documents that Z obtained from the national archives
that also referenced The Konicide Club?
A Yes, you did .
Q Would that be the kind of information that
a historian would rely upon even if it was given to
him by a lawyer?
A YES, it 2.8 .
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Markowitz – by Plaintiff – Direct
q And could you tell the jury when The
Konicide club was founded?
A The Konicide club was founded in 1932 .
Q Could you explain to the jury what the
ward Konicide stands far?
A Konicide is a word thats made of a Greek
and a Latin ward, The Greek word is the Koni part
of it, which is Greek, the Greek ward is kania,
(which is dust, and oide names from the Latin, like
homicide, meaning killer or killing, so the
(combination together would be killer dust club .
8a the killer dust club, thats the
translation of this organization that was founded in
1932?
I A Yes .
Q Do you knave who any of the members were of
the killer dusk. club from your research?
A . Yes . There were approximately 20, 25
members of the club .
Q Do you know whether or root Westinghouse
was ever a member of the killer dust club?
A Westinghouse was a member of The Konicide
Club, yes .
Q And were there other members from industry
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Markowitz – by Plaintiff – Direct
also, doctor?
A Yes . There were members from the — a
member from The Norton Company, which was an
equipment manufacturer . There were members from
insurance companies tike Metropolitan Life, and
another insurance company .
Q Were theta people there from academia?
A Yes, there were a couple of people from
Harvard University .
g Were thane any people who worked in
government at the time?
A Yes, there were members of the club who
were part of the united States Public Health Service
and the United Stakes Bureau of Mines .
Q Now, in other parts of the trial we heard
about the Saranaa Laboratory . Were any members of
the Saranao Laboratory a member of this club?
A Yes, them were T think several members of
Saranao that were members .
Q Plow, could you just give the jury a brief
description of what the purpose of the club was
based upon your research .
A The purpose of the club was to share
information by these people who were studying dust
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Markowitz – by Plaintiff – Direct
(diseases to try and learn mare from each other about
ithese dust diseases, and in one case they gave a
talk to an industry group to try and tell that
industry group about dusk diseases .
j q Nom, doctor, there as nothing wrong with
(what The Ranicide Club was about, is there?
A Absolutely not .
Q They sad and discussed dust diseases .
A Thats correct .
There is nothing nefarious or anything
(like that .
A No .
Q Now, is one of the killer dusts that were j
discussed at The Kanicide Club asbestos?
A Yes, that was one of the busts that was
discussed at the club .
Q Haw do you know that?
A There is a document in which they list
(what the various panels discussed at one of the
meetings 3n 1339, and all of the papers on that day
or two days related to asbestos .
¢ Zs this the document that you are talking
about, this 2935 document?
A Yes, thats correct .
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Markawitz – by Plaintiff – Direct
Q And its send to a13 members of The
Konicide Club?
A It seems to have been .
Q It says, Send to a21 members of The
Konioide Club .
A Yes .
And it lists the agenda for the meeting,
correct?
A thats right .
I Q December 27, 1 9 38 . And it lists a number I
!~of articles that are going to be discussed and by I,
,who, true?
A Thats correct .
I Q General Survey of the Asbestos Industry,
IExperimental Pathology Concerning Asbestosis by
IIGardner, Clinical Survey of the Asbestos Industry by
I~Sayers and Dreesen, Discussion a£ Pathology in
Patients Dying with Asbestosis, etc . .
Now, you are not familiar with the
underlying articles, are yon, doctor?
A No, I am note
I Q Youve never read them?
I A Z have never read them .
Q Thats not your function here .
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Markowitz – by Plaintiff – Direct
A Thats correct .
Q Is there any doubt in your mind, doctor,
having done the research, that the members of The
Konicide Club — Im nod saying there was anything
wrong — including Westinghouse, knew that asbestos
was a killer dusk?
MR . CAIRNS : Objection, your Honor,
to what any individual participant may
have known at that dime . I dont think
this witness can comment on that*
THE COURT : overruled .
A They certainly — the name of the club was
the killer dust club, and one of the articles
think near the bottom talks about dying, pathology
of dying patients from asbestos disease .
Q Just to satisfy Mr . Cairns, number six
says Discussion of the Pathology of Patients Dying
with Asbestosis .
A Thats the one .
MR . PLACITELLA : Ill have that
marked and offered at a separate time .
q Now, lets move away from the Konicide
I club .
Youre familiar with an organization
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I Markowit2 – by Plaintiff – Direct
,known as The Air Hygiene Foundation .
A Yes, I am .
Q What is The Air Hygiene Foundation?
A The Air Hygiene Foundation was a group of
,primarily industrial — industry sponsored that was
else dealing with the problem of dust diseases in
the 1930s .
Q And when was The Air Hygiene Foundation
formed, what year?
A It was formed — it was incorporated in
1935 and was in the process of formation from 1934
through 1935 .
Q And do you know whether or not
Westinghouse was a founding member of the Industrial
Hygiene or biz Hygiene Foundation?
A It appears in their first list of members,
yes .
Q And am I correct -° and Im net sure Z
heard you sap this 9- the reams changed over time?
A Yes .
Q What did the name change to and when?
A In 1941 the name became The Industrial
Hygiene Foundation, and in 1968 the name became The
Industrial Health Foundation .
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Markawitz – by Plaintiff – Direct
Q Now, from your research, can you tell what
the motivating farce was behind the original
,formation of The Air Hygiene Foundation?
A Yes, I can .
Q And what was that?
, A In the early 1930s, dust diseases were
considered the major industrial problem in the
United States, They were a big problem bath because
I
Ithey caused a tot of sickness to people, and because
!the people who were getting sink were suing the
companies that they worked for, and noose companies
were threatened with bankruptcy, and the insurance
(companies that insured them were also being
(threatened financially, so many of these industries
I believed that they needed to came together to
develop a way of dealing with what they called a
liability crisis . They believed that this was a
(crisis for industry .
i Q And you say there ware dust diseases .
,What were the dust diseases specifically if you know
what they were concerned about .
A The most important dust disease in the
(early 1930s was silicosis, and next to that was
asbestosis, but there was a lot of fear that other
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Markowitz – by Plaintiff – Direct
(dusts would also cause disease, although there
wasnt as much research abort whether other dusts
Iwould cause disease or rat .
Q Now, Im going to show you a document
lentitled The Problems , by Alfred C . H3rth . Could you
dell me what that is?
I A Alfred xfrth gave an address called The
I~ Problem at an organizing meeting of what became The
Air Hygiene Foundation in — an January 15, 1935 .
Where did you get this document from,
doctor?
A This document I got dram a colleague at
Carnegie Me2lon University, and he got it from the
archives of Carnegie Mellan .
It says on the side Carnegia Melton
archives?
A Yes, it does .
Q Zs this the kind of document you would
normally rely upon in conducting historical
research?
A Yes, it is .
Q Who was fir . Hirth, who did he work for?
A Mr . Hirth was an attorney who worked for
Ovens-Illinois Glass Company, and he describes being
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Markawita – by Plaintiff – Direct
faced with many lawsuits around the issue of dust
diseases .
Q Essentially what weve just discussed
here .
A Yes .
MR . PLACTTELLAo And Ill publish
this at some paint in time later for the
jury, pour Honor .
TAE COURT : All right .
Q Now, after The Industrial Hygiene
Foundation was formed — nab the original formation
but afterwards — what was the stated purpose it
gave to tie public about what it was about?
A The industrial — at this time The Air
Hygiene Foundation talked about its concern for
conserving worker health, for advancing the field of
industrial hygiene, far just generally cooperating
among industry to deal with the problems of dust
diseases .
Im going to show you whet I have marked
as P-ZHF 574, a document entitled What . Why and
Where . Is that a document that you found in the
course of your research?
A Yes, it i s .
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Markawitz – by Plaintiff – Direct
Q And does this discuss what The Industrial
Hygiene or Air Hygiene Foundations public face was,
so to speak?
Yes, it does .
Q Now, you said that one of the things was
to conduct scientific studies and investigations and
to find ways to prevent occupational diseases, and
thats reflected in that document .
A Thats correct .
Q Now, youre not saying to this jury there
is anything wrong with that, is there, doctor?
A Absolutely nod .
Q Thats a good thing .
A Yes .
Q And did they in fact do that from what you
could tell?
A They did in foot do research into dust
diseases . They did research in germs of preventing
dust diseases . They wire definitely involved in
that activity .
¢ And, doctor, internally to the IHF and the
Air Hygiene Foundation, were there additional
purposes or agenda that were not emphasized to the
public?
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Markawitz – by Plaintiff – Direct
A Yes, there were .
Q And what were they?
A They were purposes that were not so much
emphasized because they were very concerned about
who was doing the research . They waned to have
same kind of control aver who was doing research
because who was doing research had an effect on what
was getting out, what was being publicized and the
,discussion of tie whale subject of dust diseases .
They were also very — the part that
Iwasnt emphasized so much was their concern about
legislation that would remove the danger of
liability suits for the industry .
Q One of the functions internally was to
I~help fight claims?
A One of the the functions was to help to __
for industry to ban together to fight claims, yes .
Q But they still did these good things
publicly, true?
A They still did these good things, yes .
Q Now, I want to show you whats been marked
P-IHF 588 and 552 . Could you tell me what these two
documents are anti where you got them from?
A Yes .
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Markawitz – by Plaintiff – Direct
MR . PLACITELLAs Ill remark them
with the Courts stickers later .
TAE COURT : You want to mark them
into evidence later?
MR . PLACIfiELLAr Yes, just to move
things along .
THE COURT*. these will be deemed
marked .
A These are documents that were mailed to
prospective members of The Air Hygiene Foundation,,
and we found these in the national archives in the
records of the United States Public Health Service .
Q And they are the documents that — some of
the documents you relied upon for statements about
what was emphasized internally?
A Thats correct .
Q And lastly, Z want to show you a document
with my marking, P-ZHF 540, and if you can tell me
what that is .
This is a lager urging a company to join
The Air Hygiene Foundation . At this time it may
have been either The Air Hygiene Foundation or the
Industrial Hygiene Foundation because its 1941, but
,again urging membership .
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Markowita – by Plaintiff ° Direct
Q Now, I want to talk to you about
Westinghouses race specifically in terms of your
research, okay? What was — we knave they were a
member, correct? You said that before .
A Yes .
Q How long mare they members?
A They mere members gram 1437, is the firs
document we have, until 2974, which is the last
recorded document they I have of their membership .
Q You stopped your research in 1970?
A Yes .
Q what do you have to do to become a member?
A You have to pay dins to become a member .
Q 5o if youre a company and you pay dues
you can become a member?
A Thats correct .
Q Now, in addition to just being a member,
did they have any other role with respect to The
Industrial Hygiene Foundation?
I A Yes, A part of the — of Westinghouse was
also on the board of trustees from 2937 to some
(point, and then later a different member of
Westinghouse was also a member of the board of
trustees .
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Markowitz – by Plaintiff – Direct
Q Did they have a medical committee?
A The Air Hygiene Foundation had several
committees and a medical committee was one of them,
yes .
Q Aid Westinghouse have anybody an the
medical committee?
A Yes, Westinghouse also had a member of the
medical committee .
Q Did they have an engineering and
toxicology committee?
A Those are two separate committees . They
had an engineering committee and a chemical and
toxicological committee .
Q Was Westinghouse a member of anyone of
those committees?
A Yes, Westinghouse was a member of the i
chemical and toxicological committee .
, Q end, doctor, where did you get that
information about their committee membership?
A Going through the transactions of the
annual meetings, some of those transactions list the
membership of The Industrial Hygiene Foundation and
also the officers anti the members of the committees .
Q Now, diet you prepare a chart summarizing
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Markowitz – by Plaintiff – Direct
the various Westinghouse people who served on these
committees from the records you have?
A YES, Z did .
Q Did you have every record and every
transaction?
A There were some — Im drying to remember
if any were missing from the library . I think we
had just about everyone .
Q There were a couple of holes here and
there?
A There were holes primarily because in same
Iof the transactions they didnt lisp the membership
, in those years .
t2 Do you have that chart with you today,
doctor?
A Yes, Z do .
Q Could Z see a copy of it, please?
MR . PLACIPELI,Aa Could I have this
marked, please?
THE COURT : The next one is 141 .
(Received and marked Plaintiffs
Exhibit 141 in Evidence .)
Q Whats been marked Plaintiffs 141 for
identification, is that the chart that you prepared?
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Markowitz – by Plaintiff – Direct
A Thats correct .
Q This is . In the center it indicates that
Lyle Hazlatt was an the medical committee?
A Thats collect .
Q And Mr . D.ilworth was on the board of
trustees?
A Yes, Joseph Dilworth .
Q They worked far Westinghouse?
A Thats correct .
Q And you then track it, the changes and
everything, going through to the 40s and into the
505,
A Thats correct .
Q And at some point Mr . Barnes Pram
Westinghouse starts to sere on the chemical and
toxicological committee?
A Thats correct .
(Continued an next page .)
1 Dc . Markowiez – #y plaintiff
2 TxE COURTs Are you offering it in evidence?
direct . 2271
3 HR. FLRCZTELLA : I am, your Honor, I just have
4 one more gage .
5 fifth COUffTa Okay.
6 Q And again, this chart goes up to 1970, and thats
7 where you step?
B A Thats correct.
9 MR. PI.ACETBLLA : Tll offer the chart inter
10 evidence at this time .
11
MR . 6.`ATftHSE T have no objection .
12 THE COURTS Mark it in evidence, please,
13 (The reporter marked the exhibit .)
14 Q P3ow, in addition to Westinghouse, there were other
1S companies and other organizations that wire members of thin
16 organization, true?
17 A There were many, marry hundred of companies that
18 were members.
19 Ct And others served an the board of trustees and
20 ether committees?
21 A Thats corrects
22 Q Foe instance, was Johns Manville on the board of
23 trustees?
24 11 Yes, SC w3$.
25 ( Q How about Ovens Corning Fiberglass?
S. C. t~avfs
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6r . Markowitz – by Plaintiff – direct . 2172,
A I have to leak it up.
Q Yes, it vas,
Q Were people from the Saranac laboratory on the
board of trustees or did they serve in an advisory capacity
an the Industrial Hygiene Foundation.
A A member was on the medical ccsmmitteeo I dont
think that they wee on the board of trustees. At least not
in the first year .
Q There was nothing wrong with being active in the
management of this, was there, doctor?
A No.
Q And sere there people who worked to government also
on the Industrial Hygiene Foundation?
A Yes, there were.
4 What, were the People foam what agencies, lets
say?
A From the United States Public Health Services# and
Eros the United states Bureau of Mines.
Q Were they there fn their personal capacity or their
government capacity?
A They were various, as individuals, they were not
r@presenting the government.
g Now, was anybody there from the Department of
Labor?
B. C. Davis
1 fir. N:skowfes – by Plaintiff
2 A No . there was no one in from the Department o!
3 Labor .
4 Q Well, this organization was partly about labororst
5 wasnt it?
6 A It was about publicly conserving the health of
7 laborers, yes.
B fl farad why wasnt there anybody from thr Department of
9 Labor?
lp A There was a real difference and split almost
11 between the Department, United States Department of Labor as
12 the United States Public Health Services. The United States
13 Department of Labor sew its role much mace actively as
_`- id defending the rights of workers and protecting their health.
15 The United State Public Health Services saw itself as +r
16 neutral scientific agency, end *no that conducted a lot of
17 research, chid a lot of steadies, and it needed the
18 cooperation of industry ire order to conduct these studies.
19 It couldnt just go into a plant and purvey the workers or
20 survey conditionst it had to go to the management and ask
21 for their permission to go into the plant. And when they
22 did that, they then could get permission. So . it was really I
23 in their interest to army on good terms with industry.
dt tct. 2272
24 0 They couldnt do their job without at least going
25 into the plant without industrys permission?
Ei, C. Davis
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Dr. xarkaxic: – y Plaintiff -
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A A Welle as a general servict, it did research about proce+3ureso which they thought water be a benefit for all the member members at a whole. In a.ddition they did surveys of specific plants, told the management what was wrong is those plants, and they said that these purveys would be confidential, at least at first, and that the owners of the plants could uses them both to improve health, as well as to 4e used in lawsuits in defending themselves against lawsuits. They also published a digest of industrial health in which they did summaries of hundred of articles every year. They published this digest once a month anal sent that to all the members. Q Doctor, before eau continue, Y want to hive this masked. (The reporter marked the exhibits .) MR. PLACITELLAs At this point %d like to publish or show to the jury, I think we have a stipulation on this, this is a compendium of ell f 1 Br . Idtrkotaitz - by Plaintiff - dfrtct, 2275 x~ . ~-t-. r,° . y z the summaries sent out by tree rHp to its members 3 an asbestos and disease frog 1937 forward . I will 4 pub cap the franc gaga so you can gee. 5 I dont think it comes out . Could T just pass 6 ft around, your Honor lets one second, so they 7 could see what it looks like? 8 TIDE CE3tlRTs 9 {Phi exhibit number 3.43 is passed around to 10 the jurors.) 11 THE COt7FtTt Are we ready? 12 THE OFFICER; Not gauss Judge. 13 THE COURT: Okay. 14 MR. PLACZTSLL.As Now, the other thing that 15 weve done for-the jurys help, is because these 16 arent necessarily in chronological order the way 17 they were produced from the Industrial Hygiene 18 Poundat£asta we created a chart and : key, which is 19 simply a retype of the year and the date of the 20 article, in case you mead to look at it in the zi juryroom4 22 Ill just put up a eouPio or pages. The matt 23 begins in the year 1912, end it details the year 24 the article was published, the name of the summary 25 and the specific page in this group where it can He C, Davis 7 x 2 3 4 5 6 7 8 9 xa ar 12 13 14 15 16 17 18 39 20 21 22 23 24 25 Dr, Mask tts - Plaintiff - wrest. 2276 be found. Youll have that in the quryroom with you . It goes to 2932, :II the way dowre, Im up to page five, it goes cap to gage 33 . So, I`11 just stogy, 33 the last date is 2977 . Q Now bra i4or&oarits, I only have m couple more questions. These abstraction, you saver personally read the abstract, did you? A No, q The abstracts that were publishedp how often would they be Foundation beginning 5n 1437? h They were published every month. And for big companies, how many copies of these things would they get? A The largest companies would get 20 copies of the digest each month. p Every month? Assume !`or instance, that from 1937 until I984p Westinghouse was a member, they would get copies of the digest of medical articles, mgt necessarily only asbestos, from 2437 on a monthly basis right up to 1984? A Thats correct. MR. PI*ACIT8LLAa Thats all the questions I have . Thank yang MR. CAIRNS : Your Honor. Fi, C, Davis 1 Dr . kackit: - by Plaintiff - direct. 2284 2 exact that the plaintiffs attorneys will have 3 cause to be placed is the file a stipulation of 4 discontinuance . 5 MR. PLACTT6LLAs Absolutely. MR. idF+V8O$ And also, your Honors Owens 7 Corning Fiberglass has pending a direst verdict 8 motion in the Smith and the Ch%arenxa cases, 9 Oaerts Corning Fiberglass realizes that this Court 10 has broad discretion as to those cases and heard 11 the evidence in those cases, and therefore, in the 12 spirit of compromise, wt have paid mantes on these 13 cases and withdraw our motions. And would like to 14 thank the Court for its courtesies in these 15 matters. 1d THE CC3tlRTa Thank you. Well mark them 17 withdrawn. 18 (In the courtroom.) 19 THE C:OURT You ears bring in the jury, 20 1°H6 t3FFICORa Jury entering. 21 THE C:OURT X22 right members of the jury, 22 before the crass-examination, just a few things I 23 want to acquaint you with. These ate things you 24 should know at this time. {Tweas Canning 25 Fibreglass is as longer a defendant in the five R. C. Davis 1 T 3 t S 6 7 8 9 10 11 12 13 14 15 16 1? 18 19 zo 21 22 23 28 25 Ed, C, Davis i at, Markft= 2 Roberts, the only defendant is the Keen 3 Corporation. Well glut you this again of course 1 in more detail. Bvta i gent ft to be known now ft 5 certain of the attorneys 6 certain witnesses* its, ft may be because theyre 7 no osager involved in the defenses of the cases. 8 Youre not to speculate on the reason theyre no 9 longer involved in the cases, 10 All rights you may go ahead. ii doss EXAMINATION 12 BY MR. CAIRNS 13 MR. CAIRtdSa Thank you, your Honor. - li Q Mr . FRas&awita, Im Scott Cairns and L represent 15 Westinghouse. I dont think weve met or spoken beforep 16 have we? 17 19 Nof we havent. 18 Q Although $ took 4 break to try and pair 4own my 19 cross-examination, acs we should out of haze pretty 20 quickly. 21 Ps Goad. 22 Q I dont believe that either of the books that 23 youve msritterzp of I think this is a compilations of 24 articles. ,25 A Edited, right. R, C. Davis 1 Dr. Maskowftz - by Plaintiff - woes (Cairns) T 3 . 2 4 Doesnt mention Westinghouse, neither one? 3 A I dont recall that they do. 1 Q One thing Z gas worried tbaut is whether my books 5 gee overdue, end they era not . 6 3`Hd Ct5t1R2°s What art you doing using the Nee 7 Yank Public Library? 8 we gave him special permission. 9 MR. CAIRNSa Z have friends in New York at 14 least. 11 Q You started off talking about RoniCfde Club, and 1 12 want to start with that . flow do you still Ronicide . Okay. 13 2 think yore said thats a combination of a latin word, and r 14 Greek work, from y and !s the, seers to dust, 15 pneumoconiosis, that sorb. of thing. 16 A Thats right . 17 Q And the side pact is thta is where you get killer, is is that correct? 19 A Thats correct . 20 Q Ode see thato fag other wordsv that we case every day, 21 like insecticide, is that the same sort of thing? az A ~Rcght . 23 a Lees see if a can spell this. insecticide. 1 24 used to be a teacher, that means that means I have really ., ;. 25 bad handwriting. flow about matricide, would that be the B* C. Davis 1 Dr. narkarfts - by Plaintiff - cross (Cairns) 2281 2 same sor t of thing whore you combine amore words? 3 A Or homicide. 4 Q Sow about herbicfda, is that another ores off those 5 coeds th at is a combination, uses the same ending? 5 A Z assume, % have nest looked up those words 7 specific ally, I looked up Konicide. B 4 Okay. Insecticide means something that kills 9 insets, doesnt it? 10 A That is the general understanding of that word, 11 night, 12 0 Its not killer insects, is it? 13 A No, ft is nod . 14 Q matricide Is somebody to where you kill your 15 tfl4kkteer, right? 16 A Thats right. 1 7 0 Thats not killer mothers, is it? 18 A Thats correct. 19 0 Herbicide is something you auk on plants to kill 20 them, ri ght? 21 A Thats correct. 22 0 its not killer plants, is It? za A No, it is norm 24 Q So, wouldnt you agree with me that consistent with 25j~ theca 3 etiologies, that what Konicfda means is kill the H. C. Davis 25 11 were members of the Bureau o! Mines, as wt21t is that right? $fl. C. Davis 1 Dr. Karkavits ~ by Plaintiff -cross (Cairns) 22e6 2 A Fn the Konicfd: Ciubf yea, thorn were. 3 Q Thats a governmental organization. l, ye*t it is. 9 Q And members of the Public Health &ervtceas is that 6 right? 7 A Thats correct. 9 Q Plow, around the 1935 time from* we transitioned 9 from the Konicide Club over into the Industrial Hygiene 10 Foundation or the Air Hygiene Foundations is that right? i 11 A Well the Kanda.^ide Club continues to existr the 12 Ronicide Club continues until 2934 and simultaneously the 13 Air Hygiene Foundation is formed. 14 a Okay. one of the events that earl of end this 15 transiti on period was fry 1936 Silicosis Confarencer ire you I 16 familiar with th*t? 17 A Yes, i& was called the National Silicosis 18 Conferen ce . 19 p And Z think you mentioned that you relied an this I 20 article of the Konicide Club In your research? 21 A Thats correct. 22 Q And this article indicates that that conference was 23 in fact sponsored by Miss Perkirts mho was the Secretary o 24 Labors i snt that correct? 25 A She was formally, yes, as the Secretary of Labor, I C. Davit 1 1 2 3 4 5 d 7 8 9 10 z1 lx 13 1 is is 17 ae 19 ao I 2i za 23 24 25 they. A Thats correct. 8> C. Davit _. S 1 2 3 4 5 d 7 a 9 1d 11 12 13 14 15 16 17 18 19 20 za 22 23 24 25 Dr . Markowits – by Plaintiff Q And some of threes had membership lists, right? A Y:s, many of them have membership lists. Q And some of them indicated when they joinedp didnt they? A You mean is there- i°m sorry, there are a few lists that ore from 1968, °S9, 7Q, around then in which they give a list of when companies joined, Chats correct. Q Right. And in fact youre very familiar with thz^ looking at . A Yes. Q And this indicates that Westinghouse electric Corporation joined the Industrial Hygiene Foundation in 1937. You dont quarrel with that, do you? A I have no way of knowing if that°s true or not . T just, the earliest document Y had was from 1937. 0 2iow8 we talked a little bit :bout the membership of the Air Hygiene Foundation, which was the earliest name of this organization? A Thats correct. Q And there were, fn one of the documents you looked at was, the document A78, F 8 P. On this documents on why, where, when; is that right? R [tight. NB C. Davis 1 a 3 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 xo zi zz 23 24 25 Dr . Mfrkowft: – by Plaintiff – cross (Cairns) 2209__ Ana that indicates gnat, roc example, that v s Steel Corporation was a member, right? A I would have to look at the document to refresh my m.emory H. C< Davis 1 2 3 i 5 6 7 8 9 10 11 12 13 is 15 16 17 18 19 20 zi 22 23 29 25 Dr. Markawits - by Plaintiff - cross (Cairns) 2240 .-> aBWgx, . members . It vas some catagory like thaat of associate members. Q N.ow you mentioned stn the medical committee Westinghouse served throughout an different yea s t !s that correct? A As far as I remember# it wasnt throughout. Q occasionally? On and off? A For many of those yearst yes . Q And other members included s doctor from Bell Telephone Compareya right? Is that what that is? A Yes, Re Ro Jones* yea . Q Okay. And also a doctor from the U.S. Public Health Services was oar the medical cammicteet is that correct? A Thats correct . Q Acid the U.S. Public Health Services is the organization thats headed by the Surgeon General of the United States? A Thats correct. g And are you familiar that that is actually a . the fiat uniformed branch of the services? A f have heard that. Q Okay, I had newer known that until recently. Its kind of interesting. Ft. C. Davis 1 2 3 4 5 6 7 8 9 za ii 12 13 14 15 26 17 18 19 zo ~ 2% ~ za I 23 ~ 24 25 Dr . Karkavitx > by Plaintiff – crass (Cairns) 2291 Okay then, weve got on there preventive engineering committees again Philip Drinker from the Harvard School 0f Public Health ; #s that right? A TEaaC°& correct, Q And a member of the tea: tT,S> Public Health 5ervicesp right heses is that right? A Yeal thats correct . Q And now this iso Mr.,, Mr, or Me, Hatch? A Right. Mr. Hatch. Q From the Division of Industrial Hygiene of the Skate department of labor ; is that. right? I think for a short time he was, he worked ice the Nev York State Department of Labor, he had been at Harvard prior to khate and shortly he joined the staff of the Air Hygiene Foundation of America. Q All right . But at this point $n 1938r he i8 member a! the Department of Labor? Fs that correct? A Thats correct. And thin down an the membership committee we have people like someone from the Chamber of Commerce in Loa Angeles ; is that sight? A Thats correct. Q And aver in the– Lets see what else if weve got anything different here. Among the members, you have people H, £. Davis 1 Dr . Markagfts – by Plaintiff – cross (Cairns) 2242 ,. 2 like the American Automobile Manufacturers Association? Is 3 that right? L A Yea . 5 Q we ate U.S. Steel again. okay . So, there are a 6 lot of different groups represented on this foundatione 7 wouldnt you agree? s A Thats correct. 9 Q Now you mentioned that members of the industrial 10 Hygiene or Health Foundation or the Air Hygiene Foundation 11 got apples of these materials, right? 12 A Thats correct. 13 Q Okay . And companies like OCF or Westinghouse could 14 have gotten copies of these each month, right? 15 A Im sorry, Z dont know what OCF° means . 16 Q It doesnt matterv Westinghouse. 17 14 Tare 18 Q We would have gotten copies of theca articles? 19 A Thats correct. 24 Q That would incleadaF for example, fn 1946 a document 21 called abstract for a health survey of pipe covering which 22 appears on page 697 23 A i would presume see Z dont have any direct 24 knowledge of that article. 25 Q Bad you have as much knowledge about that as you do C. Davis 1 2 3 4 5 6 7 8 9 IO j 11 12 I 13 I 14 15 16 17 1d 19 24 zz az 23 za 25 Dr, qarkaxits – by Plaintiff – mass (Cairns) 2293 any of the others, right? You just would assume they would receive it? A Thats correct. Q Ail right . As part of the normal course? A Thats correct. % mean Y havent prepared this lists so X dont know whit you know, if there wart mistakes made or whatever, MR. PLAC2fiELL.4 : Judqeo T think the proper question $s has he ever seen the document before . Q Ts ft likely he would receive that, that anyone would receive any one of these as any other correct? A Presuming the titles of a22 those are correct, yes . Q And Mr. Plaaite21a asked you whether youre being paid to be here today, and I assume chit you see? P1 Yes, I ama Q And as I understand ire your cats !s $250 an hour? A Thats right . Q 4s a minimum o! $2e000 asp hour, excuse me, 82,000 a day? A No, that i$ not correct. If would get $2,000. Q Okay, But yoga normally have a minimum lee, dont you? That mould involve coming for the whole day? A NO, I do not. 8 . C. Davis l_. . 11 2 3 4 5 6 7 a 9 10 11 12 13 14 I 15 I 16 I 17 is 19 20 zi 22 23 24 is Dr. M:rkowits – by Plaintiff – redirect 2295 MX. PLACIfiELLAs I have s few questions. REDIRECT EXAMINATION BY MR. PLACIT8LLAt Q Them is nothing wrong with being a member of the Industrial Hygiene Foundation, is there doctor? R Na, there Ss nothing wrong with being a member . Q There were some good companies in there too . right? A To there were likes itod3ttfdtt8lsr good, bid, indifferent . 0 if you join an organization to learn about the dangers of e specific disease, thats a goods thing, right? R Absolutely. Q Okay. Now* Mr . Cairns asked you about the medical committees Im oar that same year, are you aware in the committees that same year was the Saranac Laboratories? A This is I9«- Q 1437< The year they joined. R 3937? 0 Rights the year they joined. A The medical committee, yes, Saranac Laboratories, Leroy Gardener is on. (Transcript continued on the next page .) H. c. Davis ~.J e 1 2 3 4 5 6 7 8 9 10 ii 12 13 14 15 16 17 18 19 24 21 22II 23 I 24 25 Dr . Markow3t: MR. PLRCITELLAs Can wt clarify what we mean by minimum fee. I dont know what hes talking about. THE CfltIRT: yeast me? MR. PLAG2TBLLA : Can ha clarify what be mama by minimum fee. THE COURTt For coming to court, youre talking about? 4 Soo your fee would be $250 an hour or $2,000 if youre hire for the whole day? A Thats correct . Q All right . And you also charge far the research services pins do, right? A Half that amount for research. 0 or for going to depositions? A Its the same as trial, Q Same as trial? t think youve been working with Mr . P1acfteI2a for about 26 months nawj is that right? A Ateos F think– Q 14 year and a half? A I think fts, Im trying to remember whether, % dont think its that long, i dont recall . Precisely. Q Thank you. ASR. C:AIRNS I dont have any other questions, Ad C. Davis 0 aa9s^ 1 2 3 4 5 6 7 8 9 10 11 iz 13 14 15 16 1? 1$ 19 20 21 za 23 24 25 LR Markawitz – by Plaintiff – Redirect Q You have never seen anything in any of the (literature that you studied, doctor, that would indicate that Dr . Gardner would hold anything back from the medical committees, would you? A No . Q So whatever Dr . Gardner knew about the dangers of asbestos disease hed probably show with the other people an the committee? MR . CAIRNS : Objection, your Honor . THE COURT : Sustained, Q Also on the board of trustees was Johns-Manville, true? A Thats correct . Q And Owens-Illinois else, they served on the legal committee? A Yes . Q Now, ire knew there is nothing wrong with being a member, bud we do know now that if you are a member you get a monthly publication of everything ever published on asbestos and disease from 1937 to the present, true? A An abstract of that, yes . Q Plow, Mr . Cairns asked you — he went through this exercise °- if you want to kill dust 2296 w \:. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 24 21 22 23 24 25 LR Markowitz – by Plaintiff – Redirect disease, do you have to warn the workers? MR . CAIRNS : Objection, your Honor . THE COURTt Sustained . He is not an i expert . Do you know whither Westinghouse ever ~~warned and people out at ion Ed site – MR . CAIRNS : objection, your Honor . THE COURT* Sustained . MR . PLACZTELLA : No other questions . MR, CAIRNS : Your Honor, I will simply ask that the documents that the witness has looked at and this chart be marked far identification . THE COURT : He is going to offer them . You want to offer his book as – fox identification? MR . CAIRNS : The one he is using in front of him, yes . THE COURT ; Well have that marked . Thank you, doctor . Mark the book just for identification purposes, 144 for I .D . (Received and marked Plaintiffs Exhibit 144 for Identification .) THE COURT : Something I neglected to
tcrae. =27
¬ . C. Davis
published for the members of the Industrial Hygiene
- by Plaintiff - Gras. (Cairns) ::e2
dont cross examine
+v .
¬
cross (Cairns) 2288 , a~vioeass3yg because there is a 1969 annual report Im
¬ work eight hours, I
by Plaintiff – crass (Cairns) 2294
