Mesothelioma Doctor Testifies in New Jersey

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2 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION – MIDDLESEX COUNTY
3 DOCKET NO.: MID-L-2068-06
4 —————————————–x
In Re: ERNEST HORVATH, Individually and )
5 as Executor of the estate of his wife )
FRANCES HORVATH, )
6 Plaintiff )
)
7 -versus- )
)
8 CHEVRON USA, INC., et al., )
Defendants. )
9 —————————————–x
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12 DEPOSITION UNDER ORAL EXAMINATION OF
13 STEVEN MARKOWITZ, MD
14 New York, New York
15 September 5, 2008
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17 REPORTED BY: ELEANOR SEKULIC
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19 PRIORITY-ONE COURT REPORTING SERVICES, INC.
20 899 Manor Road
21 Staten Island, New York 10314
22 (718) 983-1234
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3 Transcript of the deposition of STEVEN
4 MARKOWITZ, MD, called for Oral Examination in the
5 above-captioned matter, said deposition taken
6 pursuant to Superior Court Rules of Practice and
7 Procedure by and before ELEANOR SEKULIC, a Notary
8 Public for the State of New York, at the Offices of
9 HANLEY, CONROY, BIERSTEIN, SHERIDAN, FISHER & HAYES,
10 LLP, 112 Madison Avenue, New York, New York,
11 commencing at 10:00 a.m.
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2 APPEARANCES:
3 COHEN, PLACITELLA & ROTH, PC
127 Maple Avenue
4 Red Bank, New Jersey 07701
By: CHRISTOPHER PLACITELLA, ESQ.
5 Attorneys for the Plaintiff
6 SEGAL, McCAMBRIDGE, SINGER & MAHONEY, LTD.
United Plaza, Suite 1700
7 30 South 17th Street
Philadelphia, Pennsylvania 19103
8 By: ROBERT T. CONNOR, ESQ.
Attorneys for the Defendant
9 Garlock Sealing Technologies, LLC
10 McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP
1300 Mount Kemble Avenue
11 Morristown, New Jersey 07962
By: JOSEPH D. RASNEK, ESQ.
12 Attorneys for the Defendant Chevron USA
13 GREENBERG TRAURIG, LLP
MetLife Building
14 200 Park Avenue
New York, New York 10166
15 By: MARISSA BANEZ, ESQ.
Attorneys for the Defendant Robert A. Keasbey
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LANDMAN, CORSI, BALLAINE & FORD, PC
17 One Gateway Center, 4th Floor
Newark, New Jersey 07102
18 By: CHRISTOPHER KOZAK, ESQ.
Attorneys for the Defendant Sequoia Ventures
19
MARIN GOODMAN, LLP
20 40 Wall Street, 57th Floor
New York, New York 10005
21 By: FRED GOODMAN, ESQ.
Attorneys for the Defendant Fluor Corp.
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HARDIN, KUNDLA, McKEON, POLETTO & POLIFRONI, PA
23 110 William Street
New York, New York 10038
24 By: STEPHEN MURRAY, ESQ.
Attorneys for the Defendant Calon
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2 APPEARANCES (continued):
3 SCHNADER, HARRISON, SEGAL & LEWIS, LLP
140 Broadway, Suite 3100
4 New York, New York 10005-1101
By: MATTHEW TAMASCO, ESQ.
5 Attorneys for the Defendant E&B Mill Supply
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I N D E X T O W I T N E S S E S:
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WITNESS: EXAMINATION BY: PAGE:
4 Steven Markowitz, MD Mr. Rasnek – Direct 6
Mr. Connor – Cross 59
5 Ms. Banez – Cross 81
Mr. Goodman – Cross 115
6 Mr. Rasnek – Redirect 122
Ms. Banez – Re-Cross 123
7 Mr. Rasnek – Redirect 132
Ms. Banez – Re-Cross 133
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10 I N D E X T O E X H I B I T S:
NUMBER: DESCRIPTION: PAGE:
11 D-1 Deposition Notice 6
D-2 File 2
12 D-3 Curriculum Vitae 8
D-4 CD 12
13 D-5 CD 12
D-6 CD 12
14 D-7 CD 12
D-8 2-Page Fax 7/12/07 15
15 D-9 5-Page Letter 7/20/07 16
D-10 1-Page Letter 12/6/06 16
16 D-11 1-Page Letter 10/18/06 17
D-12 Death Certificate 18
17 D-13 Interrogatories 18
D-14 1-Page Letter with Attachment
18 6/18/08 55
D-15 Transcript 3/10/04 96
19 D-16 Transcript 4/11/07 96
D-17 Transcript 2/28/08 104
20 D-18 Transcript 10/26/05 105
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1 Steven Markowitz, MD – Direct
2 (Whereupon, Defendants Exhibit 1 is
3 marked for identification.)
4 S T E V E N M A R K O W I T Z, MD, having been
5 first duly sworn according to law by the Court
6 Reporter, testifies as follows:
7
8 DIRECT EXAMINATION BY
9 MR. RASNEK:
10 Q. Good morning, Dr. Markowitz.
11 A. Good morning.
12 Q. We met briefly before. My name is Joe
13 Rasnek. My firm McElroy, Deutsch, Mulvaney &
14 Carpenter represents Chevron. Were here today to
15 take your deposition regarding a report dated
16 July 20th, 2007. I understand youve been deposed
17 multiple times and know the rules; is that right,
18 sir?
19 A. Yes.
20 Q. So well dispense with that. Sir, we
21 marked as Defendants Exhibit 1 our notice to take
22 deposition in this matter. Have you seen that
23 notice?
24 (Whereupon, the witness peruses the
25 document.)
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1 Steven Markowitz, MD – Direct
2 A. No.
3 Q. Now, Mr. Placitella gave me your file to
4 review a few minutes ago, and Ill show this to you
5 and well mark it individually. Lets mark it first
6 as Defendants Exhibit 2 on the cover.
7 (Whereupon, Defendants Exhibit 2 is
8 marked for identification.)
9 Q. This is Defendants Exhibit 2, the file
10 handed to me by Mr. Placitella before the deposition
11 began. Do you recognize that as your file in this
12 case?
13 (Whereupon, the witness peruses the
14 document.)
15 A. Yes.
16 Q. Is that your entire file in the case,
17 sir?
18 A. Correct.
19 Q. And since you have not seen the
20 deposition notice, I take it you were not asked to
21 produce other documents this morning?
22 A. Thats correct.
23 Q. Can I have the file, please? Doctor,
24 before I do that, have you brought with you a copy
25 of your current curriculum vitae?
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2 A. No.
3 MR. RASNEK: Can you marl this as the
4 next exhibit, please?
5 (Whereupon, Defendants Exhibit 3 is
6 marked for identification.)
7 Q. Doctor, weve marked as Exhibit 3 a copy
8 of a document that is labeled curriculum vitae,
9 Steven Markowitz, MD, and the date appears to be
10 March 2003. It looks as if it had been previously
11 marked at another proceeding. Do you recognize that
12 as your curriculum vitae?
13 A. Yes.
14 Q. Would you please review that, Doctor,
15 and let me know if there are any changes in your
16 current curriculum vitae?
17 (Whereupon, the witness peruses the
18 document.)
19 A. Well, its been five years, and, so, I
20 will try to — Im sorry. Is the question you want
21 me to?
22 Q. I would like you to review the document
23 that we marked and tell me what, if any, changes
24 have occurred since this document was drafted?
25 A. Okay. Well, my e-mail address has
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1 Steven Markowitz, MD – Direct
2 changed. Hospital appointments, Im no longer an
3 assistant attending at Mount Sinai Medical Center.
4 Im going to do this to the best of my recollection.
5 There might be some things I dont quite remember.
6 Q. I appreciate that, Doctor. Its a
7 ten-page document. So take your time.
8 A. A number of professional activities have
9 been added. I was on a review committee for the
10 National Toxicology Program on a couple of chemicals
11 to determine whether they are human carcinogens or
12 not.
13 I served on an EPA task force relating
14 to World Trade Center dust and the need to address
15 any lingering problems from World Trade Center dust.
16 Im on a committee to address workers
17 compensation issues involved with World Trade
18 Center.
19 And theres some other professional
20 activities that I dont recall.
21 Editorial Board, Im now editor in
22 chief of American Journal of Industrial Medicine.
23 Im no longer consulting editor for
24 Archives in Environmental Health.
25 Under International Activity, I
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1 Steven Markowitz, MD – Direct
2 lectured on lung cancer and some aspect of
3 asbestos-related disease in Brazil about three years
4 ago.
5 And under Publications, there have
6 been about 15 additional publications, including
7 associate editor of the textbook called the
8 Environmental and Occupational Medicine by William
9 Rohm (phonetic) as the chief editor.
10 Im the associate editor on a number of
11 other peer review publications on screening for lung
12 cancer, on bladder cancer, a couple of chapters on
13 occupational disease and one on bladder cancer and
14 at least two publications related to World Trade
15 Center health effects.
16 And probably some other that I dont
17 recall. One that involved asbestos-related disease
18 was a case series on a few cases of malignant
19 mesothelioma presenting with pain and lung failure.
20 And thats all I recall.
21 Q. So at the present time youre not
22 affiliated with any hospital; is that right?
23 A. I am an adjunct professor at Mount Sinai
24 School, but Im not an attending.
25 Q. When was the last time you were an
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2 attending at any hospital?
3 A. It would have been at Mount Sinai.
4 Q. And when was that last time?
5 A. Probably three or four years ago.
6 Q. Your curriculum lists that you have
7 board certifications in internal medicine,
8 preventive medicine and occupational medicine; is
9 that right, sir?
10 A. Yes. But occupational medicine is a
11 sub-specialty of preventive medicine. So the board
12 certification is actually in preventive medicine.
13 Q. Have you ever sat for any other board
14 certifications?
15 A. No. Two is enough for me.
16 Q. Just so we can do this hopefully more
17 quickly, sir. How would you describe the Horvath
18 case in shorthand terms? Do you describe it as a
19 take home exposure? A para occupational case? What
20 terminology are you comfortable with? I saw in one
21 of your prior depositions, I dont know whether that
22 was a question term or yours, but it refers to para
23 occupational exposure?
24 A. This is a household contact case in a
25 spouse of a long-term worker who worked with
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1 Steven Markowitz, MD – Direct
2 asbestos.
3 Q. So talking about household contact
4 cases, have any of your writings dealt with those
5 issues or issues relating to that?
6 A. No.
7 Q. Any studies that youve done, have they
8 related to that issue?
9 A. No.
10 Q. Any investigations?
11 A. No.
12 Q. And when I say writings, Im talking
13 about peer review writings or any other documents
14 that you may have created over the years other than
15 expert reports?
16 A. The same answer.
17 MR. RASNEK: Can you mark these, please?
18 (Whereupon, Defendants Exhibits 4, 5, 6
19 and 7 are marked for identification.)
20 Q. Dr. Markowitz, I just would like to show
21 you a disc which we marked as Defendants Exhibit 4
22 which was contained within your files. And the
23 writing on it says Horvath Medical Records. Do
24 you recognize that, sir?
25 A. Yes.
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1 Steven Markowitz, MD – Direct
2 Q. And are all the medical records you
3 reviewed in connection with this case on that disc?
4 A. Theres one paper copy of a chest x-ray
5 report that I also reviewed.
6 Q. And that related to Mr. Horvath?
7 A. Yes.
8 Q. Well mark that, as well.
9 A. And I dont recall whether the other
10 discs that youre holding in your hand contain any
11 medical records or not. But if they dont, then
12 this disc plus chest x-ray report is the total of
13 what I reviewed.
14 MR. PLACITELLA: In terms of the death
15 certificate?
16 THE WITNESS: Im sorry. The death
17 certificate, right.
18 Q. Let me show you Defendants Exhibit 5,
19 which is another disc. The marking tag is hidden in
20 part, but, it relates to, it appears to be a
21 statement of Frances Horvath. Do you recognize
22 that, sir?
23 A. Sure.
24 Q. And whats your recollection of that
25 exhibit?
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2 A. Its a statement that was made by
3 Frances Horvath.
4 Q. On videotape?
5 A. Yes. Well, I didnt, thats not a
6 video.
7 MR. PLACITELLA: I think that is the
8 video.
9 A. Yes. I guess thats the video. Sure.
10 Q. Let me show you Defendants Exhibit 6
11 also contained within your file that says, Frances
12 Horvath Video Dep transcript and William Horvath.
13 Do you recognize that, sir?
14 A. Sure.
15 Q. And what is that disc?
16 A. It is what it says it is.
17 Q. A deposition of William Horvath?
18 A. Correct.
19 Q. And it also says Video of Frances
20 Horvath?
21 A. No. It says its the video dep
22 transcript of William Horvath. It says on the top
23 Frances Horvath.
24 Q. I see. This is the deposition
25 transcript and video of William Horvath; is that
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2 right, sir?
3 A. Yes.
4 Q. Let me show you the disc we marked as
5 D-7. And, unfortunately, again, the sticker is on
6 top of the writing. Do you recognize that, sir?
7 You can hold it up if you need to.
8 A. Oh sure. This is the deposition
9 transcript of Ernest Horvath.
10 Q. Now, those discs that you just looked
11 at, Doctor, do those contain all the deposition
12 testimony for this case that youve reviewed?
13 A. Yes.
14 (Whereupon, Defendants Exhibit 8 is
15 marked for identification.)
16 Q. Doctor, let me show you Defendants
17 Exhibit 8, which is a fax cover sheet from Mr.
18 Placitellas firm, together with what appears to be
19 an x-ray report. Do you recognize that document,
20 sir?
21 A. Yes.
22 Q. And what is that?
23 A. This is a radiology report on Ernest
24 Horvath, which is dated June 28th, 2007. Its an
25 interpretation by a radiologist.
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1 Steven Markowitz, MD – Direct
2 Q. Thank you.
3 Doctor, let me just ask you a couple of
4 questions about this which will spare us from going
5 back on it later. Were you involved at all in
6 arranging for this x-ray of Mr. Horvath?
7 A. No.
8 Q. Do you know how it came to be that he
9 appeared for an x-ray?
10 A. No.
11 (Whereupon, Defendants Exhibit 9 is
12 marked for identification.)
13 Q. Dr. Markowitz, let me show you what we
14 marked as Exhibit D-9. Its a letter from you to
15 Mr. Placitella dated July 20, 2007, which I
16 understand is your report in this case; is that
17 right, sir?
18 A. Yes.
19 Q. Is that the only report you drafted in
20 connection with this case?
21 A. Yes.
22 Q. Well have more questions about that.
23 (Whereupon, Defendants Exhibit 10 is
24 marked for identification.)
25 Q. Doctor, let me show you what has been
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2 marked as Exhibit 10. It appears to be a letter to
3 you from Rachel Placitella dated December 6th, 2006
4 enclosing deposition transcripts. Do you recognize
5 that document, sir?
6 A. Yes.
7 Q. Have I described it accurately?
8 A. Sure.
9 Q. With that letter were hard copies of
10 deposition transcripts forwarded to you?
11 A. No.
12 Q. So the disc that we marked here today
13 was contained within that letter?
14 A. Correct.
15 Q. Thank you.
16 (Whereupon, Defendants Exhibit 11 is
17 marked for identification.)
18 Q. Doctor, let me show you what we marked
19 as Exhibit 11, which appears to be a letter from
20 Rachel Placitella to you enclosing Plaintiffs
21 Answers to Interrogatories and medical records. Do
22 you recognize that, sir?
23 A. Yes.
24 Q. And did that contain the discs that we
25 marked here this morning?
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2 A. One of them.
3 Q. Which one, sir?
4 A. The one that says Medical Records on
5 it.
6 Q. Thank you.
7 (Whereupon, Defendants Exhibit 12 is
8 marked for identification.)
9 Q. Doctor, weve marked as Exhibit 12 a
10 document which appears to be Mrs. Horvaths death
11 certificate. Do you recognize that document,
12 Doctor?
13 A. Yes.
14 Q. And is that, in fact, Mrs. Horvaths
15 death certificate?
16 A. Yes.
17 Q. Do you recall when you obtained that
18 document?
19 A. Today.
20 Q. Had you made a request for it earlier?
21 A. No.
22 (Whereupon, Defendants Exhibit 13 is
23 marked for identification.)
24 Q. And Exhibit 13, Doctor, appears to be a
25 copy of Plaintiffs Answers to Interrogatories in
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2 this case. Do you recognize that?
3 A. Yes.
4 Q. And are those the interrogatory answers
5 that you had when you drafted your report?
6 A. Yes.
7 Q. Have you seen any other discovery
8 responses from plaintiff in this case other than
9 what we marked here so far?
10 A. No.
11 Q. Have you seen any discovery responses or
12 deposition testimony of any defendant or fact
13 witness in this case other than those that you
14 talked about here today?
15 A. No.
16 MR. PLACITELLA: Joe, I did show him,
17 although I dont have a hard copy, a copy of
18 Dr. Abrahams report, just so you know.
19 A. Thanks.
20 Q. Doctor, thanks to Mr. Placitella, I
21 looked at your transcript in the Picnic, De Mayo
22 matter, and, at that point you testified that your
23 average depositions during the course of the year
24 for 2006 and 7, the average number is about 20
25 per year; is that right?
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2 A. Depositions?
3 Q. Depositions.
4 A. No. I dont do 20 depositions per year.
5 Q. Is that reports, 20 reports a year?
6 A. Thats more reasonable. Thats probably
7 right.
8 Q. Twenty per year?
9 A. Thats an estimate.
10 Q. Okay. Now, were at September 2008.
11 Are you on track for that same number?
12 A. I dont know. I havent counted them.
13 But I dont think its been an extraordinary number.
14 Q. Since February of 2008, have you been
15 deposed?
16 A. Yes.
17 Q. How many times, sir?
18 A. Once in July. Once in August. And I
19 dont know when the Picnic, De Mayo. Is that the
20 February 08 that youre referring to?
21 Q. Yes.
22 A. There may have been another time. I
23 dont recall.
24 Q. Did any of those depositions involve the
25 kind of exposure that is alleged with respect to
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2 Mrs. Horvath in this case?
3 A. Asbestos, yes. But not a household
4 contact exposure.
5 Q. Have you testified at trial since
6 February 2008?
7 A. Probably.
8 Q. Do you have a recollection of testifying
9 at trial?
10 A. I believe so. I dont know, it wasnt a
11 household contact case. But I dont recall what the
12 name of the case was.
13 Q. Of the 20 or so reports that youve
14 rendered in the last three years, in the 20 or so
15 reports that you rendered annually in the past two
16 or three years, have any of those related to
17 household contact other than the Horvath case?
18 A. I dont believe so.
19 Q. Do you recall ever having been deposed
20 in a case involving household contact before this
21 case?
22 A. Not that I recall.
23 Q. Have you ever testified at trial in a
24 household contact case?
25 A. Not that I recall.
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2 Q. Doctor, your report in this case is
3 dated July 20th, 2007. Do you have a recollection
4 as to when you were retained in connection with this
5 case?
6 A. Only in relation to the dates that are
7 on the cover letters that were accompanying the
8 materials that were sent to me. So I dont have
9 those cover letters in front of me at the moment.
10 But if I had them, I could give you some idea of the
11 dates.
12 (Whereupon, the witness peruses the
13 document.)
14 A. So it would be during the fall of 2006.
15 Q. And by whom were you retained?
16 A. The attorney who signed this letter is
17 Rachel Placitella.
18 Q. And did you talk with Mrs. Placitella
19 before getting that letter?
20 A. Probably.
21 Q. Do you recall what your assignment in
22 this case was, when you were first approached?
23 A. I dont recall a specific assignment.
24 Q. Were you asked to address any particular
25 issues?
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2 A. I dont recall any specific
3 conversation. I either assumed or otherwise that
4 the issue was to be addressed whether this persons
5 disease was related to asbestos exposure.
6 Q. Doctor, weve talked about the documents
7 in your file and marked them all. Have you talked
8 with any individuals about his case other than the
9 Placitella law firm?
10 A. No.
11 Q. Have you talked with any member of the
12 Horvath family about this case?
13 A. No.
14 Q. Have you done anything in this case
15 since your report marked D-9 before today?
16 A. I havent looked at any additional
17 materials that I can recall. I dont think anything
18 additional was sent to me thats not included in my
19 list of reports here.
20 Q. And Mr. Placitella said that he gave you
21 the death certificate this morning?
22 A. Thats correct. And I looked at Dr.
23 Abrahams report this morning. Thats about it.
24 Q. Did you ever talk to any of the doctors
25 referenced in any of the medical records?
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2 A. No, I didnt. You asked me before if I
3 talked, spoke to anybody besides the Placitella law
4 firm about this, and I said I did not. And that
5 would include family members, physicians and anybody
6 else, to tell you the truth.
7 Q. When you were given these discs from Mr.
8 Placitellas law firm, did you print out the
9 documents on the disc?
10 A. No.
11 Q. So I take it you havent created any
12 documents, writings or anything else about this case
13 other than D-9; is that right?
14 A. Thats correct.
15 Q. Doctor, I want to ask you some questions
16 about your report marked D-9. And just looking at
17 the first page, the sixth numbered entries of
18 documents that you reviewed in connection with this
19 case, do you see that, sir?
20 A. Yes.
21 Q. And is that an accurate listing of all
22 the documents that youve seen in this case?
23 A. Today I saw the death certificate.
24 Q. Other than what you saw today?
25 A. Correct.
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2 Q. Did you ever seek any prior medical
3 records or subsequent medical records with respect
4 to Mrs. Horvath?
5 A. No.
6 Q. And youve told me before that the chest
7 x-ray report on Ernest Horvath that is listed as
8 Number 2 here is something that was provided to you
9 and you had no involvement in anything with respect
10 to having that x-ray take place; is that correct?
11 A. Thats right.
12 Q. In numbered paragraph five you make
13 reference to deposition (video) Frances Horvath
14 February 24th, 2006. Whats your recollection of
15 that videotape?
16 A. That was a statement, actually, not a
17 deposition, but I dont have any recollection. I
18 havent looked at that since before I prepared the
19 report.
20 Q. And the only reference to it in your
21 report as far as I can tell is a reference to her
22 having washed Mr. Horvaths work clothes; is that
23 right?
24 A. The only specific reference is that,
25 correct.
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2 Q. Nothing else in your report is directly
3 dependent on anything made, anything said in that
4 statement?
5 A. I dont recall.
6 Q. Could you look at your report and tell
7 me if there is anything to that effect?
8 A. What I mean is, theres no specific
9 reference to that statement elsewhere in the report.
10 Whether it otherwise informed some of what I wrote
11 in the rest of the report, I just dont recall.
12 Q. And would I be correct in assuming that
13 if it were important to you in connection with this
14 case you would have made reference to it in the
15 report?
16 MR. PLACITELLA: Objection. He already
17 said he referenced it in the report.
18 A. I dont know, actually.
19 Q. Now, I just want to ask you some
20 questions about the paragraphs of your report,
21 Doctor. Im not trying to be burdensome with this,
22 but, I want to understand where the information in
23 the report is coming from. So lets talk first
24 about the clinical history portion. And the first
25 paragraph, lets start with the first paragraph. Is
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2 everything in that first paragraph coming from the
3 medical records you reviewed in this case?
4 A. Correct.
5 Q. No other source?
6 A. Thats correct.
7 Q. And that would include the continuation
8 of that paragraph on Page 2; is that right?
9 A. Yes.
10 Q. As well as the second and, the first two
11 full paragraphs on Page 2?
12 A. Actually, the entire section under the
13 Clinical History, including those paragraphs from
14 the medical records that I list as Item 1 on Page 1.
15 Q. Without going through it in detail, you
16 can tell me that theres no other source for any of
17 the information in those paragraphs; is that right?
18 A. Thats correct.
19 Q. And on Page 3 where you say, No
20 additional medical records are available, did you
21 request additional medical records, or is that a
22 statement based upon what you saw in connection with
23 this case, what was provided to you in connection
24 with this case?
25 A. I requested no other medical records and
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2 no other medical records were made available to me
3 until today.
4 Q. Lets go to the next category down,
5 Occupational History. Do you see that, Doctor, on
6 Page 3?
7 A. Yes.
8 Q. And is everything in the first paragraph
9 coming from medical records that you reviewed?
10 A. Yes.
11 Q. No other source; is that right?
12 A. Well, in that specific paragraph its
13 about the review of medical records.
14 Q. The next paragraph refers to the
15 depositions of Ernest Horvath, and, again, I take it
16 that is all information from that depositions; is
17 that right?
18 A. I think there are multiple depositions,
19 actually. Theyre multiple days, anyway. But, yes,
20 that paragraph comes from depositions.
21 Q. Did you ever make any effort to
22 investigate any of the things Mr. Horvath said in
23 his deposition testimony?
24 A. I dont know what you mean by
25 investigate.
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2 Q. Did you do anything to independently
3 verify anything or to find further information about
4 things said by Mr. Horvath in his deposition?
5 A. Well, the other deposition by his
6 brother that discusses a lot of the same facts. But
7 apart from those two sources, I didnt seek any
8 other source of information.
9 Q. And you just made reference to William
10 Horvaths deposition. And I take it the first two
11 paragraphs on Page 4 all come from William Horvaths
12 deposition testimony; is that right?
13 A. Thats correct.
14 Q. And, again, you havent made any
15 investigation beyond reading those deposition
16 transcripts; is that right?
17 A. Thats correct.
18 Q. And is the last paragraph on Page 4
19 coming from the document that we marked as D-13,
20 Plaintiffs Answers to Interrogatories in this case?
21 (Whereupon, the witness peruses the
22 document.)
23 A. Yes.
24 Q. Doctor, would I be correct in stating
25 that you have never done any independent testing
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2 with respect to the Horvath matter; is that right?
3 MR. PLACITELLA: Objection to the form.
4 A. What do you mean by independent
5 testing?
6 Q. Youve never looked at pathology
7 materials? You never looked at any x-rays?
8 A. Thats correct.
9 Q. And I see the next paragraph on Page 5
10 says Chest X-Ray Interpretations. Is that a
11 standard category in your reports?
12 A. Yes.
13 Q. And do you sometimes make
14 interpretations from x-rays in your reports?
15 A. I sometimes read the x-rays if theyre
16 available.
17 Q. And they were not in this case?
18 A. Thats correct.
19 Q. And lets look at the conclusion of your
20 report, Doctor. I have some general questions I
21 want to ask you, as well. The first statement in
22 your conclusion is, Mrs. Frances Horvath developed
23 a malignant mesothelioma of the pleura, which was
24 caused by her household exposure to asbestos. Did
25 I accurately read that, Doctor?
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2 A. Yes.
3 Q. Are you basing that statement on any
4 scientific literature?
5 A. Sure.
6 Q. What is that, sir?
7 A. Well theres very extensive literature
8 about spouses and children who develop
9 asbestos-related disease as a result of exposure to
10 asbestos dust that was brought home, usually by the
11 father.
12 Q. Did you review that literature in
13 connection with this case?
14 A. Not specifically in reference to this
15 case. But I have reviewed that literature as part
16 of my general knowledge about occupational medicine.
17 Q. Are you able to tell me particular
18 articles or studies that you reviewed, that you
19 relied upon?
20 A. I can give you a partial list.
21 Q. If you could, please?
22 A. Sure. 1960, Wagner published a case
23 series of 33 cases of mesothelioma in which a large
24 number of them had non-occupational exposure to
25 asbestos.
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2 1965, Newhouse and Thompson published a
3 study in British Journal of Industrial Medicine
4 about mesothelioma in London in which a number of
5 cases that were described were household contacts
6 and developed mesothelioma as a result of household
7 exposure.
8 In addition, there were some cases from
9 a neighborhood of asbestos using facility, again,
10 representing non-occupational contact with asbestos
11 which resulted in mesothelioma.
12 In the 1970s, Vianna and Polam published
13 a study of mesothelioma in which, again, a number of
14 cases of mesothelioma occurred among women whose
15 contact with asbestos came from their household
16 contact with dust produced by their husband, brought
17 home by their husbands.
18 There have been additional individual
19 case reports on this matter. More recently, Bourdes
20 and Boffetta published a study on environmental,
21 including household, contact with asbestos resulting
22 in mesothelioma.
23 Magami from Italy has published a number
24 of articles over the last ten years raising
25 mesothelioma among women whose husbands work in a
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2 cement factory, in particular.
3 In 1976, Anderson and colleagues from
4 Mount Sinai cited four or five mesotheliomas among
5 household contacts. I believe that was in relation
6 to factory work that was done in New Jersey.
7 And there are a large number of other
8 studies that address the same issue documenting this
9 problem for decades.
10 Q. Now, how is it that you gave me that
11 list? Do you have a listing of this in your office
12 or something that you can rely upon?
13 A. No. I have a listing in my head.
14 Q. Lets talk about the Wagner case series
15 from 1960. Where was that published?
16 A. I think that was British Journal of
17 Industrial Medicine. But I have to admit that Im
18 not sure.
19 Q. And what were the specifics of that?
20 A. The 33 cases of mesothelioma published
21 from a certain region in South Africa. A number of
22 those cases were from miners who worked with
23 crocidolite asbestos directly. But a substantial
24 number of cases were from, occurred in people whose
25 contact with asbestos was non-occupational. As
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2 children, they lived or played near an asbestos mine
3 or asbestos deposits that existed there. In some
4 cases, they were adults who, let me make it clear.
5 They didnt develop mesothelioma as children. Their
6 exposure began as children and they developed
7 mesothelioma as adults. A number of those cases
8 constituted people whose exposure began in their
9 adult life not from the occupational setting, but
10 live near asbestos deposits or asbestos mine or
11 living with a miner from the asbestos mine.
12 Q. Does that also make any conclusions
13 about the people who live with miners?
14 A. I dont think they made a specific
15 conclusion about household contact with asbestos.
16 But I think they very much pointed out that people
17 who had significant environmental exposure to
18 asbestos without direct occupational contact
19 certainly develop mesothelioma and that asbestos
20 certainly appears to play a role in that.
21 Q. And some of that non-occupational
22 contact was living near the mine?
23 A. Correct.
24 Q. Now, Im not sure I got all the names
25 you talked about, Doctor. So Ill probably
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2 mispronounce them. I want to go through the
3 articles you referenced. In 1955, is it the
4 Millhouse and Thompson study?
5 MR. PLACITELLA: 65.
6 A. Newhouse and Thompson.
7 Q. And you said that was published?
8 MR. PLACITELLA: I have my own cheat
9 sheet. Do you want me to get it?
10 MR. RASNEK: Sure.
11 (Whereupon, a recess was taken.)
12 Q. Lets talk about the Newhouse and
13 Thompson article?
14 A. Sure.
15 Q. What was the nature of that study?
16 A. It was a study of a number of large
17 number of cases of mesothelioma in London and the
18 background of exposure to asbestos that those cases
19 had. Some of those cases, I dont recall the
20 numbers, a number of those cases had occupational
21 exposure to asbestos, I think mostly from factory
22 settings. But Newhouse and Thompson also detailed
23 and emphasized that there were clearly cases of
24 mesothelioma occurring among household contact of
25 asbestos factory workers, as well as among the
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2 neighborhood residents of asbestos using facilities.
3 Q. Did they make any conclusion with
4 respect to household exposure?
5 A. I know they highlighted the finding. I
6 dont recall the specific conclusion that they made.
7 Q. This I take it was an epidemiological
8 study?
9 A. Yes.
10 Q. Was it a long-term study?
11 A. It was, it wasnt a prospective study.
12 It was a historical retrospective study.
13 Q. And how would you describe the Wagner
14 study from 1960?
15 A. Well, thats a case series.
16 Q. The members study you reference was
17 something from the 1970s by Vianna and Polam. Do
18 you know how to spell that?
19 A. V-I-A-N-N-A, P-O-L-A-M, maybe.
20 Q. And what was the nature of that study,
21 sir?
22 A. The name, I dont recall.
23 Q. The nature of it?
24 A. Oh. That was a case control study of
25 malignant mesothelioma among women. And, again,
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2 they were looking at the source or potential source
3 of asbestos exposure for those women with
4 mesothelioma. Again, they found that a number of
5 women had their sole source of asbestos exposure
6 identified as being from a household contact with
7 asbestos produced by their spouse when he brought
8 home asbestos latent dust with him.
9 Q. Did the authors make any conclusion with
10 respect to that?
11 A. You know, I focused more on the facts
12 rather than the conclusion. I dont recall the
13 conclusion. If I had the article here, I would
14 provide it for you.
15 Q. What was –
16 A. Again, they highlighted the fact that
17 non-occupational exposure to asbestos produced
18 malignant mesothelioma.
19 Q. And when you say nonoccupational
20 exposure, were they household take home cases or
21 other things?
22 A. Certainly included household take home
23 cases. But I think also there was some cases in
24 which the exposure was from maybe living near an
25 asbestos using facility.
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2 Q. Were the workers in one particular
3 industry?
4 A. No.
5 Q. How was the group selected?
6 A. I dont recall actually how they
7 identified their cases. He worked at the health
8 department. So it could have been a collection from
9 hospitals, hospital records. But I just dont
10 recall.
11 Q. And where was that study published?
12 A. LANCET.
13 Q. Do you recall when in the seventies?
14 A. No. I think it was 1978.
15 Q. Now, the next one you mentioned, Doctor,
16 and, Im sorry, Im going to mispronounce this. My
17 writing is bad and I didnt write this well. Was it
18 Bourdes and Boffetta?
19 A. B-O-U-R-D-E-S, B-O-F-F-E-T-T-A.
20 Published in 2000. I dont recall the journal. And
21 this was a review of other epidemiologic studies in
22 which they looked at environmental exposure,
23 including household contact exposure to asbestos and
24 the risk of mesothelioma from that type of exposure.
25 Q. And that was a review article, not a
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2 study; is that right?
3 A. It was a review and synopsis.
4 Q. Published where?
5 A. I dont recall the journal.
6 Q. In the United States?
7 A. I dont recall that either.
8 Q. The next author you mentioned was
9 Magami?
10 A. Sure.
11 Q. How do you spell that?
12 A. M-A-G-A-M-I.
13 Q. And you said he produced a number of
14 articles in the past ten years?
15 A. Correct.
16 Q. You mentioned a number of articles from
17 Magami in the past ten years?
18 A. Correct.
19 Q. Were they all published in the same
20 journal?
21 A. I dont think so.
22 Q. What journals were they published in?
23 A. I dont recall.
24 Q. And did they all relate to cement
25 factories?
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2 A. No. No. Two of them I think related to
3 cement factories. But that group published a number
4 of articles in the late 1990s, early 2000s relating
5 to both occupational and non-occupational exposure.
6 Q. And what type of studies were those?
7 A. Epidemiologic studies.
8 Q. What type?
9 A. I dont recall the study design in
10 particular of a household exposure.
11 Q. Did those authors come to any conclusions
12 about household exposures?
13 A. Well, they certainly found elevated risk
14 of mesothelioma as a result of household contact
15 with asbestos derived from the husbands contact
16 with asbestos in the factory. But I dont recall
17 their specific conclusion.
18 Q. Was it a statistically significant
19 increase?
20 A. I think so. But I dont remember the
21 specific numbers.
22 Q. And the last author you mentioned was
23 Anderson in 1976?
24 A. Correct.
25 Q. And what New Jersey factory did that
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2 relate to?
3 A. I think that was the amosite plant in
4 Paterson. I believe it was the UNACRO plant.
5 Q. Where was the Anderson study published?
6 A. New York Academy of Science, the Annals
7 of the New York Academy of Sciences.
8 Q. And what kind of study was that?
9 A. That was a cross-sectional study of
10 looking at actually scarring in the chest among
11 household contact, including spouses and children of
12 workers who worked at that UNARCO plant. They also
13 mentioned that there were four or five pleural
14 mesotheliomas that had occurred among that group.
15 Q. Among what group?
16 A. Among the group of household contacts,
17 which numbered several hundred studies.
18 Q. Did the author come to any conclusion
19 about the household contact?
20 A. In general, they came to a conclusion
21 that household contact with asbestos caused
22 asbestos-related disease. I dont recall specific
23 with respect about mesothelioma.
24 Q. Any other articles that you relied upon,
25 Doctor?
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2 A. Well, theres much bigger literature. I
3 just dont recall ay specific names of articles I
4 can tell you right now.
5 Q. With that paragraph in your conclusion,
6 Doctor, you make reference to the fulfillment of
7 latency criteria. Do you see that?
8 A. Yes.
9 Q. What in your view is the range of
10 latency period for mesothelioma?
11 A. Well, in general, it should be at least
12 a five or ten-year period from onset of exposure to
13 asbestos to the clinical diagnosis of malignant
14 mesothelioma. Thats a minimum. And theres really
15 no outer limit. I have certainly seen cases in
16 which 60 years had elapsed between onset of exposure
17 and development of the mesothelioma. The average is
18 about 30 or 35 years.
19 Q. Do you have an opinion as to which
20 exposures to asbestos in time are more important to
21 the development of mesothelioma?
22 A. Well, there are a lot of factors that
23 are going on simultaneously with time, including the
24 type of contact with asbestos, the intensity of
25 exposure, the frequency and duration over shorter
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2 periods of time. And those have to be factored in
3 in looking at the relevance of exposure to asbestos
4 in any given chronological time period.
5 Q. And how do you factor those in?
6 A. How do I?
7 Q. How do you factor those in? What kind
8 of analysis would you do?
9 A. I dont understand the question.
10 Q. Well, you said those variables would
11 have to be factored in to determine which exposures
12 were more important in the development of the
13 disease?
14 A. Well, first of all, let me say the old
15 exposure that causes the disease. And, so, I
16 usually dont sit there and identify which
17 particular time period or particular type of
18 exposure was the most important.
19 Q. Can you point me to some scientific
20 literature that would set forth that proposition?
21 MR. PLACITELLA: What proposition?
22 MR. RASNEK: The proposition he just
23 articulated.
24 MR. PLACITELLA: That the total of
25 exposure causes the disease?
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2 A. I think that the asbestos medical
3 literature demonstrates that point. I cant, I
4 cant point to a specific source that says that.
5 You can look at the Helsinki criteria, I guess, and
6 other official statements. But its known that its
7 the full exposure that produces the disease.
8 Q. But you cant cite anything in
9 particular at this point, is that right, other than
10 your statement to the general literature?
11 A. I dont understand the question.
12 Q. You referred to the full body of
13 literature. I wanted to know if you can cite me to
14 anything specific in reference to Helsinki?
15 A. Im sorry. I dont understand the
16 question. I need to know exactly what Im being
17 asked to reference here. What statement am I being
18 asked to reference?
19 Q. My initial question was, is there any
20 way to determine which exposures are more important
21 in the development of mesothelioma in terms of time?
22 MR. PLACITELLA: He answered that.
23 Q. And your answer is that the full, your
24 answer is that all the exposures cause the disease;
25 is that right?
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2 A. Right.
3 Q. And I guess my question was whether I
4 can look at any article which would tell me that
5 thats what the general understanding in the medical
6 community is?
7 A. Thats kind of a universal truth
8 demonstrated by the full body of literature. So Im
9 sure there are textbooks that refer to it. Im sure
10 in the background from the World Health
11 Organization, International Agency For Research on
12 Cancer, OSHA and NIOSH there are references to that.
13 But thats just generally recognized to be true.
14 Q. Okay. My question was whether you can
15 point me to anything specific? And the answer is
16 that you cant, other than to make reference to
17 those?
18 MR. PLACITELLA: He just gave you a
19 bunch of things.
20 MR. RASNEK: There was nothing specific.
21 Im asking whether there is something I can
22 look at specifically?
23 MR. PLACITELLA: Ill object to your
24 characterization of what you think he said.
25 A. Again, you know, if the question is
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2 whether asbestos causes mesothelioma, if thats what
3 were getting at, then I can give you a bunch of
4 references that will point you in that direction.
5 Q. My question was more relating to time.
6 For instance, a 60-year exposure and a latency
7 period of 60 years, are there exposures more
8 important to the development of the disease?
9 A. You have to factor in intensity,
10 frequency, duration, chronological time, the extent
11 of indirect versus direct contact.
12 If you need a reference, you can look at
13 Selikoffs book 1978, Asbestos and Disease. You
14 can look at the Helsinki criteria, 1997.
15 Scandinavian Journal of Work Environment and Health.
16 You can look at the IARC documents from 1977 or
17 1989, both documents discuss that. You can look at
18 the World Health Organization Environmental Health
19 Criteria Document 1998. And then, there are
20 original medical articles that also prove this
21 point.
22 Q. Can you cite any of them?
23 A. They form the basis by which we can say
24 that asbestos behaves epidemiologically in a certain
25 way that encompasses the duration, frequency and
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2 intensity. Its true for the miner study by
3 McDonald which was published repeatedly over a
4 number of years. The British Journal of Industrial
5 Medicine. You can look at the sequence of Dr.
6 Selikoffs studies beginning in 1964 and later in
7 1979 in the New York Academy of Sciences and again
8 in 1991, where they detail the mortality experience
9 of the insulators in relation to the epidemiologic
10 characteristics of the asbestos exposure that they
11 had.
12 You can look at the series of cement
13 studies by Hughes and While (phonetic). And I dont
14 recall the authors in particular in Canada by
15 Finkelstein which demonstrate the same points.
16 There are various studies from asbestos
17 factories, including the UNACRO factory I mentioned
18 before published by Seidman and Selikoff and later
19 by Aerlich (phonetic) and other colleagues from
20 Mount Sinai, as well as some friction product
21 studies by McDonald, textile factory studies by
22 Dement repeatedly published over a number of years,
23 all demonstrating the epidemiologic characteristics
24 of asbestos in relation to cancer, including lung
25 cancer and mesothelioma.
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2 Q. Doctor, lets look at the second
3 paragraph in your conclusion. You refer, you say,
4 As you know, household exposure to asbestos through
5 laundering work clothes of an asbestos worker is a
6 well-established route of exposure for significant
7 exposure to asbestos and subsequent risk of
8 malignant mesothelioma. Did I accurately read
9 that, Doctor?
10 A. Yes.
11 Q. When you refer to asbestos workers, what
12 are you referring to?
13 A. Well, here, Im talking about a worker
14 who worked with direct contact with asbestos and
15 indirect contact in which they had regular contact
16 with asbestos in an occupational setting.
17 Q. So youre not specifically talking about
18 people in the asbestos industry?
19 A. Im not here referring to restricting to
20 an insulator, for instance. It goes beyond an
21 insulator.
22 Q. Is Mr. Horvath covered by your
23 definition of asbestos worker –
24 A. Yes.
25 Q. — given what he did?
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2 A. Well, he was a pipe fitter for a couple
3 of years. That certainly would qualify as asbestos
4 worker. His subsequent contact, which was quite
5 significant, he had as a crane operator. I wont
6 automatically include such a person as an asbestos
7 worker. Here what I intended to mean is, someone
8 who had significant asbestos exposure in the
9 occupational setting over a period of time.
10 Q. Now, we talked before about articles
11 referencing household take home exposures. Are
12 those the articles that youre referencing in your
13 first sentence in this paragraph?
14 A. Yes.
15 Q. You go on to say in the next sentence
16 that, Mr. Horvaths work in a refinery such as
17 Chevron is well-known for providing significant
18 exposure to asbestos. Whats your basis for that
19 statement, Doctor?
20 A. Well, oil refineries are well-known to
21 produce significant asbestos exposure for certain
22 workers in those facilities.
23 Q. And when you say well-known, are you
24 referring to any studies or articles?
25 A. Sure. Sure. A study by Ken Roseman
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2 (phonetic) and others from Mount Sinai looking at
3 scarring of lungs and pleura caused by asbestos
4 published about 20 years ago and then republished in
5 1991 in the New York Academy of Sciences. There
6 have been a series of mortality studies among oil
7 refinery workers dating back to at least the
8 mid-1980s. Workers at Exxon have been studied.
9 Workers at Shell.
10 Q. Im story. Lets go back to the Roseman
11 study. Where was that published?
12 A. I dont recall.
13 Q. Is it published?
14 A. Well, I recall — oh, yes. It was
15 published. I recall two in particular. One from
16 the eighties and one from 1991. The 1991 was the
17 New York Academy of Sciences. I dont recall where
18 the earlier one was published.
19 Q. Im sorry for interrupting you. But you
20 went on to the next one. What was that?
21 A. Well, Im saying there are a number of
22 mortality studies of oil refinery workers which
23 demonstrate that they develop mesothelioma as a
24 result of their work in the oil refinery. These
25 studies include a number of studies at Exxon
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2 facilities. One of the authors was Raabe,
3 R-A-A-B-E, published multiple times with updates
4 over a number of years. A study by, the lead author
5 was Tsai, T-S-A-I. Im sorry. I dont recall any
6 of the journals except for one or two of these were
7 published in the Journal of Occupational
8 Environmental Medicine. But Tsai published again
9 for American oil refineries showing that workers
10 were at risk for malignant mesothelioma as a result
11 of asbestos exposure at the oil refinery.
12 Finkelstein published a study of
13 refineries in Canada demonstrating that there was
14 excess risk of malignant mesothelioma in that
15 refinery. Gunn, G-U-N-N, published a study just in
16 the last couple years out of Australia making the
17 same finding that oil refinery workers develop
18 mesothelioma as a result of their exposure to
19 asbestos.
20 There was a study in Italy, and I dont
21 remember the first author, published within the past
22 ten years showing that oil refinery workers develop
23 mesothelioma as a result of their exposure to
24 asbestos at those refineries.
25 Q. Are all the studies you just referenced,
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2 were they all epidemiologic studies?
3 A. Yes.
4 Q. And do you know the types of studies
5 they were?
6 A. Most of them were cohort mortality
7 studies. I think all of them, except Im not sure
8 about the Roseman study. But the others I mentioned
9 were all cohort mortality studies. There may have
10 been one case control study.
11 Q. Anything else, Doctor?
12 A. No. Oh. There are other studies
13 showing non-malignant asbestos-related disease among
14 oil refinery workers. But I cant give you the
15 reference off the top of my head.
16 Q. Doctor, lets go on to the next
17 sentence. This is corroborated by the available
18 depositions of him and his brother. And then you
19 go on to say, In addition, he had, meaning
20 Mr. Horvath, Ernest Horvath?
21 A. Mr. Ernest.
22 Q. You make a statement that, In addition,
23 he had extensive calcified pleural plaques on the
24 chest x-ray, which further corroborates his history
25 of extensive exposure to asbestos. Explain that
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2 statement to me, Doctor?
3 A. Well, the chest x-ray interpretation
4 that I reviewed, its one of these exhibits, said
5 that he had calcified plural plaques on his x-ray.
6 And given his exposure to asbestos at Chevron, that
7 means that he not only had significant exposure by
8 history, but he also developed the classic
9 non-malignant finding of scarring of the pleura
10 which has been there for a long time which was due
11 to his prior work at Chevron.
12 Q. Are there other causes of calcified
13 pleural plaques other than asbestos?
14 A. Potentially, yes. Old trauma can do
15 that. But thats almost always unilateral. In the
16 old days you could see that with tuberculosis. But
17 you really dont see that these days.
18 Q. Other than old trauma and tuberculosis,
19 any other causes?
20 A. You know, it could occur with pleurisy.
21 Again, that would usually be unilaterally. There
22 are probably some other causes. I just dont
23 recall.
24 Q. Is pneumonia one of them?
25 A. An uncomplicated pneumonia wouldnt do
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2 that. If it involved the pleura and the parenchyma,
3 then it could occur.
4 Q. Anything else, Doctor?
5 A. There are other causes. But I dont
6 recall.
7 Q. Did you do anything to evaluate
8 Mr. Ernest Horvaths medical history?
9 A. No.
10 Q. And since we talked about everything you
11 produced here today, I take it you never looked at
12 any prior x-rays of Mr. Horvath; is that right?
13 A. Thats correct.
14 Q. Doctor, do you plan to do any further
15 work in connection with this case?
16 A. Not unless Im asked to.
17 Q. And as of now, have you been asked?
18 A. No.
19 Q. Let me show you Defendants Exhibit 12,
20 which is the death certificate that Mr. Placitella
21 gave you this morning. Have you reviewed that, sir?
22 A. Yes.
23 Q. Is there any significance of that
24 document in terms of your opinion?
25 A. Yes. Its the death certificate. Yes.
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2 Q. And what is that?
3 A. Its the death certificate of Frances
4 Horvath. And it indicates that the date of death
5 was, its a little hard to read, but it appears to
6 be March 18th, 2006. And that the cause of death
7 was malignant mesothelioma. And thats the only
8 cause of death thats listed. Its signed by Dr.
9 Babbitt who was one of her treating physicians.
10 Q. Is there anything different in that
11 document from what the medical records showed?
12 A. Well, the medical records I had were
13 limited to the time while she was still alive and
14 extended through December 2005 and clearly indicated
15 she had malignant mesothelioma. What this death
16 certificate adds is she actually died of that
17 disease a few months later.
18 Q. One more document to mark, Doctor.
19 (Whereupon, Defendants Exhibit 14 is
20 marked for identification.)
21 Q. Dr. Markowitz, let me show you
22 Exhibit 14, which is a letter to counsel from Rachel
23 Placitella enclosing a report of Dr. Abraham dated
24 June 12th, 2008. Do you recognize that document,
25 Doctor?
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2 A. I saw it on the computer screen this
3 morning.
4 Q. Is that the only report youve seen from
5 Dr. Abraham?
6 A. Yes.
7 Q. Have you had any communications with him
8 about this case?
9 A. No.
10 Q. Do you know him?
11 A. Yes.
12 Q. Have you worked together?
13 MR. PLACITELLA: Objection to the form.
14 A. I dont work with other physicians.
15 Q. Let me rephrase the question. Has he
16 been an expert with you in other litigation?
17 MR. PLACITELLA: Objection.
18 A. He has been, he has submitted reports on
19 cases in which I have also been asked to submit
20 reports.
21 Q. Have you had interaction with him in
22 those litigations?
23 A. No.
24 Q. Does this report add anything to your
25 opinions in this case?
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2 A. Well, he certainly confirms the
3 diagnosis of malignant mesothelioma. Though, that
4 never was really in doubt. He did describe that he
5 saw some asbestos bodies in lung parenchyma, and it
6 was his opinion that those findings support the
7 history of asbestos exposure. So thats the only
8 information I didnt have prior to today. But it
9 just really confirms what we already knew, which was
10 that she had significant exposure to asbestos and
11 that her disease was caused by that exposure.
12 Q. And just so the record is clear, Doctor,
13 youre not a pathologist; is that right?
14 A. Thats correct.
15 Q. Anything else about that report that is
16 different?
17 A. No.
18 Q. Dr. Markowitz, let me just ask you a
19 couple more questions. I have reviewed your
20 testimony from the Picnic and De Mayo case. In that
21 case you were asked questions about what, I dont
22 want to paraphrase your testimony, but, you were
23 asked questions about how you could determine
24 whether an individuals exposure to
25 asbestos-containing products contributed to the
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2 development of mesothelioma. And I believe your
3 answer was that all of the individuals exposures
4 over time contributed to the development of
5 mesothelioma; is that right?
6 MS. BANEZ: Objection to form.
7 A. I dont recall what the question was or
8 what the answer was.
9 Q. Is that a fair statement of your
10 opinion?
11 A. Could you repeat the question?
12 Q. If a person is exposed to asbestos over
13 a period of years, is it your opinion that all of
14 those exposures contributed to his development of
15 mesothelioma?
16 A. Subject to latency, yes.
17 Q. And what would be the exclusion for the
18 latency period?
19 A. Well, if the person has a long time
20 exposure to asbestos and included up to the time
21 which they were diagnosed with malignant
22 mesothelioma, which, frankly, in my experience
23 hasnt really happened very often, it would be
24 difficult to say that the exposure to asbestos that
25 they had a week, two weeks, you know, some short
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2 period of time prior to the diagnosis actually
3 contributed to the development of that cancer or
4 not.
5 Q. What about exposures more than ten or 20
6 years ago?
7 A. Those are certainly important in terms
8 of causation.
9 Q. Doctor, Im going to look at my notes.
10 I may have a few more questions. We did provide you
11 with a document request and we havent been provided
12 with those documents. And we can deal with that
13 later. Ill pass the witness. But I may have a few
14 more questions.
15
16 CROSS-EXAMINATION BY
17 MR. CONNOR:
18 Q. Dr. Markowitz, I have a few questions.
19 Lets stay with the report. I want to focus a
20 couple areas. My name is Bob Connor.
21 With respect to, lets go to Page 2, I
22 guess its the third or fourth paragraph down that
23 begins Mrs. Horvath was readmitted.
24 A. Right.
25 Q. You note about halfway down that she was
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2 also known to be anemic. And you say later on at
3 the second from last sentence she received a blood
4 transfusion diuretic. Did the blood transfusion
5 have anything to do with her asbestos-related
6 symptomatology?
7 A. The cancer probably contributed to her
8 anemia.
9 Q. The cancer or the chemotherapy?
10 A. Well, the cancer itself would contribute
11 to the anemia. And her chemotherapy could also well
12 have contributed to the anemia.
13 Q. Okay. The next paragraph down you noted
14 she was readmitted to the Medical Center of
15 Princeton in September 2005?
16 A. Right.
17 Q. And she had had some progressive
18 shortness of breath. You noted though that she had
19 been transferred from the hospital in Rahway, New
20 Jersey where she had congestive heart failure,
21 atrial fibrillation and deep venous thrombosis.
22 Those conditions, do you believe in any way were
23 caused by her condition of malignant mesothelioma?
24 A. Let me take a moment here.
25 (Whereupon, the witness peruses the
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2 document.)
3 A. I think that there was a contribution to
4 her heart disease from, and certainly her symptoms
5 during that admission from her mesothelioma.
6 Q. Well, I know you said her pulmonary
7 symptoms were due at the time to malignant
8 mesothelioma. But Im more focused in the question
9 about she was being treated with a blood thinning
10 agent Digoxin for the atrial fibrillation and deep
11 venous thrombosis. Do you believe those were
12 reasonable and necessary medical expenses and/or
13 treatment for her malignant mesothelioma, or were
14 they separate and apart because she had underlying
15 heart disease?
16 MR. PLACITELLA: Objection to the form.
17 A. Id have to look at that particular
18 medical record to answer that. Its not quite
19 clear. She had an echocardiogram six months
20 previously which did not show any heart failure.
21 Mesothelioma can often involve the lining
22 surrounding the heart. Extensive pleural fluid and
23 extensive cancer can put stress on the heart. So to
24 answer that particular question, Im sorry, I should
25 look, relook at those records. Its plausible. But
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2 to make a more precise statement, I have to look at
3 those.
4 Q. My question is, can you state to a
5 reasonable degree of medical certainty that those
6 treatments were for anything necessary or some other
7 condition?
8 A. I think part of her illness was related
9 to her malignant mesothelioma. There was a
10 contribution to her symptoms during that admission.
11 In my report I say that her admitting diagnoses were
12 congestive heart failure, atrial fibrillation and
13 deep venous thrombosis. But I dont mention what
14 the discharge diagnoses are, meaning, that in fact
15 they decided she had during that admission.
16 So Id have to say that there was
17 certainly a contribution to her symptoms and to her
18 illness in that admission from her malignant
19 mesothelioma. But I certainly cant rule out
20 contribution from additional disease.
21 Q. You also noted that she received
22 Synthroid for hypothyroidism?
23 A. Correct.
24 Q. Is that related to her malignant
25 mesothelioma or treatment therefore?
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2 A. No. Not to my knowledge.
3 Q. You had a prior discussion with
4 Mr. Rasnek about Page 3, the last paragraph before
5 it gets to the cigarette smoking history about
6 Mr. Ernest Horvath?
7 A. Right.
8 Q. Let me ask you, reviewing his chest
9 x-ray report, was that necessary to reach your
10 conclusion, was that an integral part of reaching
11 your ultimate conclusion in this case?
12 A. It was helpful, but I would have reached
13 the same conclusion without that report.
14 Q. Okay. I mean, you had reviewed his
15 deposition testimony and that of Mrs. Horvath,
16 correct?
17 A. Correct.
18 Q. And you certainly relied upon that for
19 most of the information with respect to his exposure
20 and what youve called the household contact or take
21 home exposure?
22 A. I relied on the depositions, the
23 statement and also the reference in the medical
24 records by her physician to her exposure.
25 Q. You noted in the occupational history,
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2 the first sentence says, It was indicated in
3 multiple medical records. And then you go on to
4 cite three specific ones, 4/8/2004, 4/13/2004 and
5 5/8/2005. Do you know, were those the multiple
6 youre referring to in the first sentence, or are
7 you saying there are more than those three?
8 A. Those are the multiple I was referring
9 to. There may have been one I missed, I dont know.
10 But those are the ones I saw.
11 Q. I didnt know if you were referring to
12 others that were not related in your report. Okay.
13 Let me ask you a question. In any of
14 the information that you reviewed, do you recall the
15 date that Mr. & Mrs. Horvath first cohabitated or
16 first resided together?
17 A. I recall they were married in 51, I
18 believe. But I dont have the information whether
19 they cohabitated prior to that.
20 Q. Okay. My question would be, if in fact
21 they did not reside together until after they were
22 married in 1951, would you exclude the exposure,
23 what well call the household exposure, take home
24 exposure prior to 1951 with respect to your opinion
25 here today?
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2 A. Not necessarily. It depends on where
3 they lived. For instance, if Mr. Horvath lived in a
4 house or apartment prior to 51, and then she moved
5 in with him when they got married, assuming he began
6 work at Chevron in the late forties, brought his
7 dusty clothes home, contaminated the house, then
8 there would be exposure that she was introduced to
9 in 1951. I dont know if that pertains or not. But
10 thats a scenario by which prior exposure, exposure
11 prior to 1951 certainly could have been significant.
12 Q. Okay. But if in fact they resided in a
13 new location, you would not believe she would have
14 had any what well call take home exposure prior to
15 1951? In other words –
16 A. Well, also, theres the issue of
17 exposure in a car when they drove back and forth to
18 the plant with his dusty clothes. Thats another
19 avenue for household exposure that could have
20 occurred.
21 However, if they moved to a new place
22 when they got married, then really the exposure she
23 would have received in the apartment or house, what
24 would have been relevant would have been what you
25 brought home after that date of moving into that new
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2 facility, new house, excuse me.
3 Q. Also in your report you indicated you
4 had not reviewed any chest x-rays with respect to
5 Mrs. Horvath. Does that remain the same?
6 A. Yes.
7 Q. Other than what weve gone through so
8 far today, for instance, Dr. Abrahams report, death
9 certificate, have you been supplied any additional
10 materials?
11 A. No.
12 Q. No additional depositions or expert
13 reports in any way?
14 A. No. I looked — Im sorry. I was shown
15 very briefly and I skimmed part of a report from an
16 industrial hygienist named Selders (phonetic) in
17 this case. But I just looked at a few lines. I
18 didnt get a chance to review it.
19 Q. Fair enough. Youre not relying on that
20 report to formulate your opinions in this particular
21 case?
22 A. No.
23 Q. You mention in your report the reference
24 to the Mrs. Horvath using cheese cloth?
25 A. Yes.
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2 Q. From your reading of the medical records
3 and your reading of the deposition transcripts, have
4 you come to any conclusion as to whether that
5 particular product was an asbestos-containing
6 product?
7 A. I dont know where they got that
8 product. I didnt see that corroborated in the
9 deposition or statement. That was in the medical
10 records.
11 Q. Do you know if asbestos-containing cloth
12 was used over the top of pipe covering in any of
13 your review of the literature on this particular
14 subject?
15 A. If youre talking about refineries per
16 se and talking about what I learned from depositions
17 or statements in this case, I didnt see any
18 reference to any use of cloth in the work area,
19 except that reference in the medical records.
20 Q. We talked earlier today about, for
21 instance, the Paterson study with respect to UNACRO.
22 I mean, generally, during this period that
23 Mr. Horvath worked, roughly the 48 to 1986 time
24 period, was amosite used in insulating materials
25 during that time period in the United States and
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2 specifically in oil refineries?
3 MS. BANEZ: Objection.
4 MR. RASNEK: Objection to form.
5 A. I cant comment on whether amosite was
6 used in oil refineries or not.
7 Q. Would it be used in insulating material
8 during that period of time?
9 MS. BANEZ: Objection to form.
10 MR. RASNEK: Objection.
11 A. To some extent, yes.
12 Q. You mentioned that the study at the
13 UNACRO plant, and you understand what was made at
14 that particular plant?
15 A. It was an amosite using facility. I
16 dont recall what they made.
17 Q. Now, there was also reference in the
18 deposition transcript with respect to a Kaylo
19 product. Do you recall any of that testimony?
20 A. No.
21 Q. Let me ask you, have you testified in
22 cases with respect to Owens-Illinois and/or Owens
23 Corning in the past?
24 A. That those names have been mentioned,
25 yes.
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2 Q. And do you know whether Kaylo during a
3 certain period of time was an amosite-containing
4 product?
5 A. I dont recall the details.
6 Q. Do you know if any Johns-Manville
7 insulating materials contained amosite during the
8 relevant period 48 to 86?
9 A. I dont recall.
10 Q. The same question with respect to Philip
11 Carey or Celotex?
12 A. I dont know.
13 Q. With respect to your opinions here
14 today, are you relying upon any studies or authors
15 with respect to the exposure levels experienced by
16 those either installing or removing
17 asbestos-containing insulating materials?
18 A. I dont depend on, I dont rely on
19 knowledge about those exposure levels measured
20 quantitatively.
21 Q. Certainly, you reviewed Selikoffs study
22 where he talked generally about the insulating
23 workers?
24 A. Yes.
25 Q. And you find him generally reliable with
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2 respect to his study of the insulating workers?
3 A. What do you mean by reliable?
4 Q. Someone you rely upon in formulating a
5 source of information in generating opinions.
6 A. Yes.
7 Q. You did talk about all the exposures
8 contributing to the development of disease and
9 during appropriate latency period. And my question
10 is, during that period of the latency period, would
11 you also include any what is generally termed
12 environmental background or ambient exposures to
13 asbestos as causes in the development of process?
14 MR. PLACITELLA: Objection to the form.
15 MR. RASNEK: Can I have that read back,
16 please?
17 (Whereupon, requested portion of the
18 record was read back.)
19 Q. Do you understand the –
20 MR. RASNEK: Objection.
21 Q. Do you understand the question, Doctor?
22 A. No.
23 Q. Okay. Do you generally agree that there
24 is or was during the period that were discussing
25 here, 1948 to 1986, what is referred to as ambient
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2 exposure to asbestos that most people experience
3 living in an urban setting?
4 MR. PLACITELLA: Objection to the form.
5 A. There are studies from the seventies and
6 eighties, I dont know about the earlier period,
7 which show that urban areas in particular there is a
8 very low level of asbestos in the ambient air,
9 meaning the general environment.
10 Q. I want to make sure were using the same
11 terms. So Ill use the ambient term you just
12 referred to. And your opinion in this case was that
13 all of Mrs. Horvaths exposures during the
14 appropriate latency period contributed to her
15 disease; is that correct?
16 A. Correct.
17 Q. Would you include in that her ambient
18 exposures to asbestos? Im not referring to what
19 weve been referring to as household contact. Im
20 referring to her ambient?
21 MR. PLACITELLA: What proof is there
22 there was ambient exposure where she lived
23 or worked?
24 MR. CONNOR: You can object.
25 MR. PLACITELLA: Youre asking a
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2 question that has some factual predicate, I
3 assume. But I dont know what it is so far
4 in this case.
5 A. In theory, if she had some ambient
6 exposure above and beyond the household exposure
7 that she had for many years, that ambient exposure
8 would form an extremely small contribution to her
9 overall exposure.
10 Q. In your opinion, would it be a
11 substantial contributing factor in the development
12 of her malignant mesothelioma?
13 A. No.
14 Q. Now, in this particular instance or in
15 this case you did reference Mr. Horvaths work
16 either with or around gasket and packing materials?
17 Do you recall that?
18 A. Yes.
19 Q. And is it your opinion that his working
20 with or around those particular products were a
21 substantial contributing factor in the development
22 of Mrs. Horvaths disease?
23 A. Yes.
24 Q. Whats the basis for that?
25 A. That he did that on a regular basis and
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2 it was performed in his immediate environment at
3 Chevron and by others and contributed to his overall
4 asbestos exposure.
5 Q. What are you relying upon for the levels
6 of exposure that are experienced by individuals who
7 either work with or around those types of materials,
8 gaskets, packings?
9 A. To the extent the gaskets contained
10 asbestos and removal of those gaskets and packing
11 during that period produced airborne dust and he did
12 this on a regular basis, it was done by others on a
13 regular basis, that he would have inhaled that dust
14 and it would have contributed to his overall
15 asbestos burden. In addition, it would have gotten
16 on his clothes and he would have transported it
17 home.
18 Q. And what particular opinion, what proof
19 do you have that the, what well call the asbestos
20 fibers related to working with or around gaskets and
21 packings made its way from his clothing, or, first
22 of all, got onto his clothing and made it to the
23 breathing zone of Mrs. Frances Horvath?
24 A. Well, I dont have any particular proof
25 in this case. But, as with any of the
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2 asbestos-containing materials used, those materials
3 were manipulated and airborne, got on his clothes
4 and were transported home and they contributed to
5 his exposure and consequently to her exposure.
6 Q. What forms the basis of your opinion
7 about the amount of exposure that would get onto
8 clothing of a worker who worked with or around
9 asbestos-containing gasket or packing material?
10 A. I have no opinion about the quantitative
11 amount of dust that gets on clothes. It would be
12 hard to characterize, except as they do in the
13 deposition was, the environment was very dusty and
14 his clothes were full of dust and he brought it home
15 and she shook out those clothes producing dust.
16 Q. You agree there was testimony by William
17 and Ernest Horvath and the medical records that the
18 gentlemen had significant exposure to
19 asbestos-containing thermal insulation materials,
20 correct?
21 A. Yes.
22 Q. I know you were asked questions about
23 your curriculum vitae, and that was updated. Just
24 with respect to your current rate structure for 2008
25 or if youve changed it recently, what is your
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2 current rate structure?
3 A. How much do I charge?
4 Q. Is it review? Reports? Depositions?
5 Trial?
6 A. I now charge $440 per hour for review,
7 preparation of reports, depositions and trial
8 testimony.
9 Q. So its all the same rate?
10 A. Yes.
11 Q. How long has that rate been in effect?
12 A. About a month or so.
13 Q. What was it prior to that?
14 A. $400 an hour.
15 Q. Is it fair to say currently you mostly
16 also have a consultant practice as opposed to a
17 patient practice?
18 A. I am a professor. I run a research
19 center. In addition, for a small portion of the
20 time I am a consultant, particularly on
21 asbestos-related legal matters.
22 Q. And I guess, for instance, on your
23 report it has your name and it says Occupational
24 Environmental Medicine and your address. Are you
25 currently self-employed?
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2 A. In this capacity, Im self-employed for
3 this type of work. But I am a salaried professor at
4 the City University of New York.
5 Q. And as far as are you seeing patients –
6 A. No.
7 Q. When was the last time you saw a
8 patient?
9 A. Probably a year ago.
10 Q. Was it a family member or friend?
11 A. No. I get those questions all the time.
12 Q. I mean seeing patients like in an office
13 setting?
14 A. World Trade Center ground zero workers,
15 I used to be one of the examining physicians. And I
16 got too busy and — about a year ago and I stopped
17 doing it.
18 Q. When you say you got too busy, with
19 respect to your responsibility at the City
20 University, or something else?
21 A. The City University.
22 Q. And at the City University, what are you
23 teaching?
24 A. Well, I dont actually teach any
25 courses. I give lectures at Mount Sinai on bladder
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2 cancer, on occupational and lung cancer, on
3 occupational epidemiology. But my job is really a
4 research position.
5 Q. And is it related to the World Trade
6 Center, or something else?
7 A. A number of the screening of World Trade
8 Center workers, nuclear weapon workers around the
9 country, looking for occupational disease, in
10 particular lung cancer at an early stage. I have a
11 project measuring air pollution in New York City at
12 the moment and another project with immigrant
13 workers.
14 Q. Are these grant projects?
15 A. Yes. Grants or contracts.
16 Q. You talked about the World Trade Center
17 study and the dust. Are those, are the problems
18 that are being experienced, or if there are problems
19 being experienced, what are primarily related to the
20 components of the dust or what were the components?
21 MR. PLACITELLA: Do you have some sort
22 of issue with privilege for government work?
23 Q. Are you going to come to trial and say
24 the asbestos-containing dust of the World Trade
25 Center workers in your experience, thats what Im
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2 trying to follow up on, or is it a mixed dust
3 scenario?
4 A. Its a mixed dust scenario.
5 Q. Okay. Are these people experiencing
6 asbestos-related symptomatology, or is it something
7 different?
8 A. Its something different.
9 Q. And based upon your professional time,
10 how much are you devoted, how much of your
11 professional time is related to the asbestos
12 litigation?
13 A. On average, about four or five hours per
14 week.
15 Q. Generally with respect to the induction
16 of malignant mesothelioma, do you subscribe to a
17 difference in the potency of the different body
18 types?
19 A. Yes.
20 Q. And do you rely upon either certain
21 studies, or do you have an opinion with respect to
22 those differences?
23 A. I have an opinion that relies on
24 studies.
25 Q. And what is that opinion?
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2 A. That crocidolite is more potent fiber
3 for fiber counting one fiber for one fiber than
4 chrysotile. That amosite is probably somewhat more
5 potent than chrysotile, though not nearly as much as
6 crocidolite. But that all fiber types, all three
7 fiber types cause malignant mesothelioma.
8 Q. And, in particular, do you rely upon a
9 certain author or certain study to formulate that
10 opinion?
11 A. There are a number of articles that have
12 been written. Nicholson and Langer co-authored at
13 least two articles on this topic in the late 1990s,
14 2000. Singer and colleagues at NIOSH had a review
15 that addressed this issue in 1996. Smith and
16 colleagues in the American Journal of Industrial
17 Medicine about 1996 also reviewed this issue. There
18 are a number of other articles that obviously
19 address the issue, as well.
20 Q. And do you have a, when you express your
21 opinions with respect to this, do you believe that
22 theres, for instance, crocidolite is 100 times more
23 potent than chrysotile or 500 times more potent, do
24 you express it in any way other than saying its
25 more potent than chrysotile?
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2 MS. BANEZ: Objection.
3 Q. Do you put amounts on it?
4 A. Well, I actually find what Nicholson
5 writes to be fairly convincing, that theres a lot
6 of uncertainty around this. But, again, fiber for
7 fiber, setting aside issues of when a person was
8 exposed or the potency or duration of the particular
9 fiber type, that crocidolite is somewhere three to
10 five times more potent than chrysotile as the
11 estimate given a lot of uncertainties in particular
12 around the measurement of the fibers at the various
13 facilities where asbestos epidemiologic studies have
14 been done. Amosite is much closer to chrysotile in
15 the same range, and perhaps two times more potent.
16 Q. I mean, do you agree theres still,
17 there are still authors that are looking into this
18 issue about the ability of these fiber types or
19 their potency to induce mesothelioma?
20 MR. PLACITELLA: Objection to the form.
21 You mean defense studies, or actually unbiased
22 studies?
23 MR. CONNOR: EPA contracted studies.
24 MR. PLACITELLA: You mean the ones they
25 were hired by the defense guys and everybody
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2 says were bias?
3 MR. CONNOR: You can make your statement
4 on the record.
5 MR. PLACITELLA: Im just asking a
6 question.
7 MR. CONNOR: Only certain people say
8 that.
9 A. Im not aware what studies there are at
10 the moment about this topic.
11 (Whereupon, a recess was taken from
12 11:54 a.m. to 12:01 p.m.)
13
14 CROSS-EXAMINATION BY
15 MS. BANEZ:
16 Q. Good afternoon, Doctor.
17 A. Good afternoon.
18 Q. My name is Marissa Banez. Weve met
19 before. If at any time you dont understand any of
20 my questions, just let me know and Ill rephrase
21 them. Okay?
22 A. Sure. I cant say that I ever met you
23 before. But thats fine.
24 Q. Earlier today.
25 A. I see. Okay.
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2 Q. And I was at the De Mayo deposition, as
3 well. All right.
4 I just want to go back to the Vianna and
5 Polam study you discussed earlier.
6 A. Yes.
7 Q. I believe you indicate that a number of
8 the women that were studied had exposures like that
9 of Mrs. Horvath, that is, the household contact
10 exposure. Did I understand you correctly?
11 A. I didnt say they had exposure like her,
12 but I said household exposure.
13 Q. Household contact exposure as you
14 defined earlier. What was the percentage of that?
15 A. I dont recall the percentage.
16 Q. Did the study find any other causes for
17 the mesothelioma other than household contact
18 exposure for those women?
19 A. I believe there were some cases who had
20 non-occupational exposure besides household contact.
21 But I dont recall the details.
22 Q. Okay. Do you recall, sir, whether or
23 not there were any instances of what the scientists
24 found to be idiopathic mesotheliomas in that group
25 that they studied?
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2 A. I think there are a number of cases in
3 which they could not identify any source of asbestos
4 exposure.
5 Q. But you just dont recall the
6 percentages of the various groups?
7 A. Not offhand.
8 Q. You also just mentioned a few moments
9 ago that your consultant business is a personal
10 business, correct?
11 A. Correct.
12 Q. And as a consequence, whatever you earn
13 as a part of your consultant business doesnt really
14 go to the clinic or the university for which you
15 work, correct?
16 A. Thats correct.
17 Q. Does anybody else work with you in that
18 business?
19 A. I dont really call it business. But I
20 had a secretary who typed up my reports for me. Her
21 computer broke a few months ago, so I have not
22 really been using her.
23 Q. Anybody else other than your secretary
24 in your consultant business?
25 A. No.
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2 Q. Did your secretary work with you or type
3 up the report which you have which is Exhibit 9 in
4 this case?
5 A. I dont recall.
6 Q. I know that youve had your deposition
7 taken in the past. Ive seen some of them, but I
8 have not seen them all. Can you give me an estimate
9 of how many depositions youve given in the past?
10 A. In normal years, its two or three
11 depositions per year. In the past year or so its
12 been slightly more than that. But, on average,
13 thats what it is.
14 Q. Since when?
15 A. Well, I started issuing reports like
16 this in the late 1980s. There were a number of
17 years when there werent many depositions. So when
18 I say two or three per year, thats really what I
19 recall over the past five or six years.
20 Q. All right. And out of all those
21 depositions that youve given, were any of them
22 taken in household contact exposure cases such as
23 this one?
24 A. I dont remember. Mostly not. But
25 whether there was one or two, there could have been.
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2 I just dont recall.
3 Q. I believe that a lot of the
4 correspondence from the Placitella firm to you in
5 this case came from Mrs. Placitella; is that
6 correct?
7 A. Correct.
8 Q. Did you ever have any conversations with
9 Mrs. Placitella over the telephone or in person
10 regarding this case?
11 A. Sure.
12 Q. And how many times did you have such
13 conversations with her?
14 A. That would have been once or twice.
15 Q. And do you recall the substance of those
16 conversations, sir?
17 A. Not specifically.
18 Q. How about generally?
19 A. Generally, Im sure there was an initial
20 call before she sent me materials to basically
21 discuss the case and my willingness to review the
22 records. It probably would have been about
23 logistics or additional depositions or the like.
24 Q. Do you recall ever receiving any
25 correspondence from Mr. Placitella?
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2 A. No.
3 Q. Did you ever have any conversations with
4 Mr. Placitella with respect to this case?
5 A. Just briefly this morning before the
6 deposition started.
7 Q. And could you tell me, sir, what was the
8 substance of that conversation?
9 A. He showed me Dr. Abrahams report. He
10 showed me the death certificate. He gave me a copy
11 of that. Briefly looked at an expert report by
12 Selders in the case. And that was about it.
13 Q. Did he tell you why he was showing you
14 the death certificate?
15 A. To bring me up-to-date on the medical
16 records.
17 Q. And what about the Abraham report, did
18 he tell you why he was showing you that?
19 A. No.
20 Q. What about the Selders report, did he
21 tell you why he was showing you that?
22 A. No. It wasnt of any particular reason
23 that was apparent to me.
24 Q. Okay.
25 A. Its a sense of completion more than
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2 anything else.
3 Q. Do you know if your secretary had any
4 conversations with anyone from the Placitella firm
5 regarding this case?
6 A. Im certain she did not.
7 Q. Exhibit 9 in front of you, which is your
8 report, sir, do you have any previous drafts of that
9 report?
10 A. No.
11 Q. Im sorry?
12 A. No. No.
13 Q. And were you the only one who put
14 together that report?
15 A. Yes.
16 Q. Were you the only one who reviewed the
17 records in preparation for that report?
18 A. Yes.
19 Q. Im sorry if this was asked of you
20 earlier. I might have missed it. But, how much
21 time have you personally spent in this case?
22 A. I dont recall precisely, but probably
23 about five hours.
24 Q. And that includes the writing of the
25 report?
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2 A. Correct.
3 Q. And all of the conversations with the
4 Placitella firm?
5 A. Well, the conversations were very brief.
6 Q. Okay.
7 A. So, yes. I mean, it would be five hours
8 total.
9 Q. Im assuming excluding this deposition?
10 A. Thats correct.
11 Q. Now, I know that you worked with the
12 Placitella firm with regards to other cases,
13 correct?
14 A. Correct.
15 Q. Do you know how many?
16 A. Just a few.
17 Q. A few, meaning five or ten?
18 A. Less than ten.
19 Q. Of those, do you know how many are
20 household exposure cases other than this one?
21 A. I dont recall. Most of them would have
22 been occupational cases. But whether there was an
23 additional one, I dont remember.
24 Q. Okay. Do you know that Mr. Placitella
25 used to work at the Wilentz, Goldman, Spitzer firm?
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2 A. Yes.
3 Q. Did you work with him at that firm?
4 A. I dont think so. I met him. But I
5 dont think, if so, it would have been very little.
6 Q. Did you ever work with Mrs. Placitella
7 prior to her joining the Cohen, Placitella firm?
8 A. No.
9 Q. You mentioned that you are working on a
10 few cases for the Placitella firm currently. What
11 have you been asked to do in those cases?
12 A. To review medical records and related
13 materials and issue an opinion as to whether the
14 person had an asbestos-related disease or not.
15 Q. And have you written a report in all
16 those cases?
17 A. As I said before, theres just been a
18 few cases. But to date, the cases Ive completed I
19 have written reports in those cases.
20 Q. Have you received a case from the
21 Placitella firm to review and have concluded that
22 you would not be writing a report?
23 A. I dont think so.
24 Q. Im not limiting this next question to
25 the Placitella firm. But, in general, have you ever
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2 written a report where the attorney who asked you to
3 write the report disagreed with your conclusion?
4 A. The attorney disagreed?
5 Q. Yes.
6 A. They wouldnt have told me if they
7 disagreed or not.
8 Q. Have you ever worked on behalf of a
9 defendant in an asbestos case?
10 A. Ive never been asked.
11 Q. Would you have a problem working for a
12 defendant in an asbestos case?
13 A. Well, the issue to me is, is there
14 significant exposure to asbestos? Is there disease
15 that is related to asbestos that could be related to
16 asbestos? And is sufficient documentation available
17 to write an opinion about that association? Thats
18 basically the criteria. And whether Im too busy or
19 not. Those are the criteria I use to accept a case
20 or not. Its not who sends me a case.
21 Q. How much have you been paid to date in
22 this case?
23 A. I dont know that figure off the top of
24 my head. I estimate about five hours, it would be
25 $2,000 or less.
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2 Q. Are you aware that the standard list of
3 experts served by the Placitella firm in all of
4 their cases you are listed as one of the experts who
5 may testify in those cases?
6 A. I think they may have told me that.
7 Q. Were you paid any type of a retainer fee
8 in connection with the privilege of having been
9 included in an au just such a list?
10 A. Well, I dont know about the au just
11 list part of it. I have not. And I dont accept
12 retainer fees.
13 Q. I believe earlier you testified that you
14 did not discuss this case with Mr. Horvath. Did I
15 understand you correctly?
16 A. Yes.
17 Q. And by Mr. Horvath, I mean Mr. Ernest
18 Horvath. You understand that?
19 A. Any Horvath.
20 Q. Okay. Do you think it would have been
21 helpful to speak with Mr. Ernest Horvath about this
22 case?
23 A. No. I had all the information I needed
24 from the material provided to me.
25 Q. Earlier you testified that you reviewed
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2 the testimony of his brother William Horvath in this
3 case. Did you review any other depositions of fact
4 witnesses in this case?
5 A. No.
6 Q. Were you provided any of those
7 transcripts?
8 A. No.
9 Q. Did you ask for any?
10 A. No.
11 Q. Did you review any of the summary
12 judgement motion papers that were filed by any of
13 the defendants in this case?
14 A. No.
15 Q. Did you review any of the Placitella
16 firms oppositions to any of those motions in this
17 case?
18 A. No.
19 Q. Were you provided any of those papers?
20 A. No.
21 Q. As I indicated to you, I did read
22 through some of your prior testimony. And I have no
23 interest in rehashing anything about which you
24 already testified at length. But, generally
25 speaking, do you stand by the medical and
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2 epidemiological opinions and testimony that you have
3 previously given, or are there any corrections,
4 additions or changes that you now would like to make
5 based upon new data or studies?
6 MR. PLACITELLA: Objection to the form.
7 Its an impossible question to answer.
8 A. I cant sit here and recall every
9 opinion that Ive expressed in deposition or trial
10 testimony. In general, I think theres an enormous
11 continuity in what I said over time about asbestos.
12 On the other hand, over a 20-year period
13 science does evolve and new studies are performed.
14 And, so, there may be some mild evolution in some of
15 my opinions.
16 Q. Anything that comes to mind?
17 A. No.
18 Q. I have some follow-up on some of your
19 prior testimony, however. Do you recall giving
20 testimony in the case of Joseph L. Lechner,
21 L-E-C-H-N-E-R, on March 10th, 2004?
22 A. I certainly recognize the name of the
23 individual. I dont recall the testimony per se.
24 Q. Thats a case involving mesothelioma
25 from exposure to automotive products. Do you recall
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2 that?
3 A. No.
4 Q. Id like to show you Pages 14 and 15
5 from that testimony. Ive highlighted the areas Id
6 like you to read. You can read anything you want.
7 But Im really interested in the highlighted
8 portions. And Ill ask you some questions after
9 youre done.
10 MR. PLACITELLA: Is that the whole
11 transcript?
12 MS. BANEZ: I believe it is.
13 MR. PLACITELLA: Can we mark it and make
14 it part of the record?
15 MS. BANEZ: Sure. I can do that.
16 (Whereupon, the witness peruses the
17 document.)
18 Q. Sir, do you see I, believe its on Page
19 15 where you reference breathing zone. Do you see
20 that?
21 A. Yes.
22 Q. How are you defining breathing zone?
23 A. This is the area from which an
24 individual breathes in air.
25 Q. Can you quantify that in any way?
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2 A. No.
3 Q. Having read the plaintiffs deposition
4 transcript in this case, I assume that youre
5 familiar that he described Chevron as a huge
6 facility?
7 A. I dont remember the word huge. But
8 its big. I dont recall the word huge. But he
9 could have used it.
10 Q. Okay. Would you agree that its your
11 understanding its a big facility?
12 A. Yes.
13 Q. Do you also recall the plaintiff
14 testified when outside contractors were in the plant
15 he, could be in one part of the plant while they
16 were in a different part?
17 MR. PLACITELLA: Is that the only thing
18 youre going to quote him, or are you going
19 to quote the parts where he said he was in
20 the vicinity?
21 MS. BANEZ: You cant do this.
22 MR. PLACITELLA: You cant do this.
23 MS. BANEZ: I can give him the
24 transcript. I was going to do that –
25 MR. PLACITELLA: Okay.
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2 MS. BANEZ: — before you interrupted
3 and made your speaking objection.
4 Q. Page 260, Line 9 is where it starts.
5 (Whereupon, the witness peruses the
6 document.)
7 MS. BANEZ: For the record, that is
8 plaintiffs deposition, Volume II, I
9 believe.
10 A. So you want me to corroborate the
11 correctness of what you read, is that the question?
12 Q. Yes.
13 A. Yes.
14 Q. Okay. Now, where he says he could be in
15 one part of the plant while the outside contractors
16 were in a different part, would you consider the
17 outside contractors within his breathing zone during
18 those times?
19 A. No.
20 (Whereupon, Defendants Exhibits 15 and
21 16 are marked for identification.)
22 Q. Id like to show you what has been
23 marked for identification as Defendants Exhibit
24 Number 16, which is plaintiffs deposition Volume II
25 again. Page 261 — Im sorry. I guess you can go
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2 back to where you were reading on Page 260 up to
3 261, Line 4.
4 (Whereupon, the witness peruses the
5 document.)
6 A. Okay.
7 Q. Do you see where he says he could be up
8 to 50 feet away from outside contractors working at
9 the plant?
10 A. Yes.
11 Q. Would you consider 50 feet away within
12 his breathing zone?
13 MR. PLACITELLA: Object to the form.
14 Under what circumstances?
15 MS. BANEZ: Stop the speaking
16 objections.
17 A. He says all different feet. That could
18 be 50 feet away, 100 feet away. He referred to them
19 being five feet away from him previously.
20 However, to answer your question, if the
21 outside contractors are a distance of 50 feet away
22 from him, then I say, and hes working in that area
23 at the same time, I would say that its quite likely
24 that their activities producing airborne asbestos
25 dust, that he will breathe in some of that dust.
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2 Q. Wouldnt it depend on what the outside
3 contractors were doing to that asbestos?
4 A. Sure. Sure.
5 Q. For example, if he had just –
6 MR. PLACITELLA: Were you done with your
7 answer?
8 MS. BANEZ: I wasnt done with my
9 question.
10 MR. PLACITELLA: Were you done with your
11 answer?
12 A. I apologize for interrupting you.
13 Q. Okay. For example, if they were simply
14 ripping off one piece of pipe cover 50 feet away
15 from him, would that be within his, would the
16 asbestos fibers that may be released as a result of
17 that incident be within his breathing zone?
18 MR. PLACITELLA: Objection to the form
19 of the question.
20 A. It depends how much asbestos was being
21 removed and the conditions under which they were
22 doing it.
23 Q. All right. And how about 100 feet away
24 from him, would that be within his breathing zone?
25 A. Less likely. But, again, it depends on
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2 what theyre doing to the asbestos. If theyre
3 disturbing it in a way that becomes airborne, those
4 fibers are going to travel substantial distance and
5 it would well have been within his breathing zone.
6 Q. When you say those fibers could travel
7 substantial distance, what is the maximum that they
8 could travel?
9 A. I cant really answer the maximum. It
10 depends on the local environment, the room or
11 whether its outside. It depends on how much
12 asbestos is disturbed, what the wind conditions are
13 like. There are a lot of conditions that determine
14 how far asbestos can travel.
15 Q. And its not always the same, correct?
16 A. Correct.
17 Q. I would like to give back to you what
18 has been marked for identification as Defendants
19 Exhibit 14. Page 22. Im really just interested in
20 whats highlighted. You can read anything you want.
21 After you read that, let me know.
22 (Whereupon, the witness peruses the
23 document.)
24 MR. PLACITELLA: Do you have a copy for
25 me?
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2 MS. BANEZ: No. I told you, thats the
3 only copy I have.
4 A. Okay.
5 MR. PLACITELLA: You cant ask him any
6 questions until I read it.
7 MS. BANEZ: Okay, Mr. Placitella.
8 (Whereupon, the witness peruses the
9 document.)
10 Q. Okay.
11 MR. PLACITELLA: Okay.
12 Q. Do you see, sir, where theres a line, a
13 space left open for you to fill in on page 24? Do
14 you see that part?
15 A. Yes.
16 Q. Do you have those studies in mind today?
17 Are you able on give me that information?
18 MR. PLACITELLA: Objection to form.
19 A. No.
20 Q. Is that information readily available to
21 you?
22 A. Its available, sure.
23 Q. So that if we left another space for you
24 in this transcript, would you be able to fill it in?
25 MR. PLACITELLA: Im not going to let
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2 him. You can ask any questions you want.
3 Hes not filling in any spaces in the
4 transcript.
5 Q. What were you referring to in scientific
6 literature that supports that point one fiber per cc
7 over working lifetime would not be safe?
8 A. Were talking about the OSHA standard,
9 which is based on a risk assessment that was
10 performed, the result of which was at point one
11 fibers per cc there would be residual excess cancer
12 risk for workers exposed who are otherwise
13 unprotected.
14 And there are a number of studies. I
15 can tell you some of the names of the authors. I
16 cant cite the specific name of the journal. But
17 some include those by Nicholson and Selikoff and by
18 Benderlien (phonetic), I believe, by Atkinson
19 (phonetic), others by McDonald and Dement, Hughes
20 and While, and the study by Pio (phonetic), I
21 believe. There are likely other studies. I just
22 dont recall them at the moment.
23 Q. Im giving you Defendants Exhibit 14,
24 and go to Page 15 of that transcript, starting Line
25 17 to 23. Again, you can read anything you want.
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2 But thats the portion Im interested in.
3 (Whereupon, the witness peruses the
4 document.)
5 A. Okay.
6 Q. Do you see on Line 22 to 23 where you
7 say, Im usually not asked to rule out particular
8 products. So, I usually dont address that issue.
9 Do you see that?
10 A. Yes.
11 Q. That was in 2004. Does that statement
12 remain true today?
13 A. Im sorry. You have to ask me the
14 question if you want me to respond. That was a
15 response to something in a particular case.
16 Q. For the record, Im just going to read
17 the question:
18 When you look at someones occupational
19 exposure history and see the products they used, do
20 you ever make a determination that a particular
21 product was not a substantial contributing factor,
22 and, if so, what criteria do you use?
23 And your answer was, Im usually not
24 asked to rule out particular products. So, I
25 usually dont address that issue. That was your
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2 testimony in 2004.
3 My question to you, sir, is, whether or
4 not that remains true today?
5 A. Thats correct. I dont recall ever
6 being asked to rule out a particular product by an
7 attorney.
8 Q. If you were asked to rule out a
9 particular product, would you do so?
10 A. It depends on the specifics of the
11 situation. I cant really give a general answer on
12 that.
13 Q. Okay. What would be the facts and
14 variables you would need in order to rule out a
15 particular product?
16 MR. PLACITELLA: Object to the form.
17 What do you mean by particular product?
18 MS. BANEZ: What we were talking about
19 here.
20 MR. PLACITELLA: What do you mean by
21 particular product? Do you mean like a
22 Garlock gasket? A type of product? An
23 exposure? What are you talking about?
24 MS. BANEZ: Any of those.
25 MR. PLACITELLA: Any of those, exposure,
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2 gaskets, it doesnt matter. Particular
3 product means pipe covering, exposure,
4 gaskets. What does it mean? How can he
5 answer that question?
6 Q. Can you answer that?
7 A. Well, I dont think theres a blanket
8 answer to that. You know, it depends on the
9 particulars of the persons exposure and situation
10 and to the extent to which thats known. So I dont
11 think theres a generic answer to that really.
12 MS. BANEZ: Could you mark this as the
13 next Exhibit?
14 (Whereupon, Defendants Exhibit 17 is
15 marked for identification.)
16 Q. Earlier, Dr. Markowitz, we discussed
17 your deposition testimony in the De Mayo and Picnic
18 cases. Id like to show you a portion of the
19 deposition testimony you gave. Page 128 to 129, I
20 highlighted the portion Im interested in. Again,
21 you can read anything you want. When youre done,
22 let me know and I will ask you some questions about
23 it.
24 (Whereupon, the witness peruses the
25 document.)
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2 A. Sure.
3 Q. My first question, Doctor, is, the
4 highlighted portion of that testimony that you have
5 in front of you, do you stand by that testimony
6 today?
7 A. Sure.
8 MR. PLACITELLA: Object to the form.
9 A. Sure.
10 Q. On Line 15 on Page 128 where you say,
11 The literature on that is less deep, do you see
12 that, sir?
13 A. Yes.
14 Q. What do you mean by that?
15 A. I have to reread the transcript, because
16 this is occurring in a certain case and a certain
17 series of questions. So I have to sit here and
18 reread that, reread a couple pages to figure that
19 out.
20 Q. May I just look at that for a minute?
21 Maybe I can help you.
22 (Whereupon, Defendants Exhibit 18 is
23 marked for identification.)
24 Q. Doctor, do you recall testifying in the
25 case of Norman Mass and Jay K. Fleckner in New York
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2 County, the cases that dealt with dental tape?
3 A. Yes.
4 Q. Id like to show you your testimony in
5 that case we marked as Defendants Exhibit 18. Now,
6 thats the transcript to which Page 128 of Exhibit
7 17 refers. So, to the extent that you need to refer
8 to that, go right ahead.
9 MR. PLACITELLA: You want him to read
10 that whole transcript?
11 MS. BANEZ: No. Theres a reference to
12 the page that relates to what I had asked
13 him about earlier.
14 MR. PLACITELLA: You want him to read an
15 entire transcript in order to answer this
16 question?
17 MS. BANEZ: No. There is a reference.
18 Ill tell you what page it is.
19 MR. PLACITELLA: Why dont you just ask
20 him a question instead of asking him to read
21 something else? If you have something to
22 ask him, ask him and hell answer it.
23 MS. BANEZ: Because you guys always say
24 you cant ask him things –
25 MR. PLACITELLA: Id rather have you ask
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2 him a question than ask him to read an
3 entire transcript.
4 MS. BANEZ: It puts it in context.
5 MR. PLACITELLA: Well, everything he
6 ever testified would put it in context. But
7 youre not going to ask him to read every
8 transcript. Just ask him the question. If
9 you believe theres something that wasnt
10 covered, ask the question. Dont ask him to
11 read prior stuff.
12 MS. BANEZ: Because I dont understand
13 what his answer was.
14 MR. PLACITELLA: Just ask him a
15 question.
16 MS. BANEZ: Im asking him.
17 MR. PLACITELLA: Why dont you ask him
18 what you want to about this case rather than
19 have him reading prior transcripts? Youre
20 giving him one transcript that refers to
21 another transcript and you want him to
22 figure out how they relate. Im not going to
23 object. Ask him a question.
24 (Whereupon, the witness peruses the
25 document.)
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2 MR. PLACITELLA: Does anybody else have
3 any questions other than Marissa?
4 MR. GOODMAN: I have a couple.
5 MR. PLACITELLA: How many do you have?
6 MR. GOODMAN: Not long. Fifteen
7 minutes.
8 MR. PLACITELLA: Im going to stop you
9 very soon and let him ask.
10 MS. BANEZ: You cant stop me.
11 MR. PLACITELLA: Ill cut you off and
12 make a determination whether you can go back
13 and ask.
14 MS. BANEZ: You cant make that
15 determination.
16 MR. PLACITELLA: Its my deposition.
17 Its my witness. Its his time.
18 MS. BANEZ: And were entitled to
19 depose.
20 MR. PLACITELLA: Im going to let other
21 people go and you come back and figure out
22 what youre going to ask. Because Im not
23 going to have the witness read multiple
24 questions. Just ask him the question.
25 While youre formulating your questions,
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2 Ill let them ask questions. You can figure
3 out the questions you really want him to
4 answer.
5 A. I dont quite understand this. Are you
6 saying that on Page 127 of this February 28, 2008
7 deposition, that page is referring to a certain page
8 and line number on this other deposition?
9 Q. All Im asking you, sir, is, you
10 testified the literature on that, being household
11 exposure, is less deep than, say, on the
12 construction industry. Do you see that?
13 A. Sure.
14 Q. And my question to you is, what do you
15 mean by less deep?
16 A. There are fewer studies.
17 Q. Okay. And those are the studies that
18 you mentioned earlier?
19 A. Which studies did I mention earlier?
20 Q. With respect to household exposure.
21 A. Those are some of the studies. Thats
22 not all of the studies. But thats illustrious of
23 the type of literature that supports household
24 exposure causing mesothelioma.
25 Q. Now, in reference to household contact
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2 exposure, would it be fair to say that the asbestos
3 exposure of a household member who develops the
4 asbestos-related condition is different from the
5 asbestos exposure of the one whos occupationally
6 exposed?
7 MR. PLACITELLA: Object to the form.
8 A. In what respect? What are you referring
9 to?
10 Q. For example, wouldnt the worker be
11 exposed to more asbestos at work than what he ends
12 up bringing home?
13 A. Well, it depends on the work thats
14 done. It also depends on the case. When the home
15 becomes contaminated with asbestos, theres at least
16 the potential for 24-hour year-round exposure that
17 could continue into the future. Whereas, for the
18 worker, its normally a 40-hour work week. So
19 theres some time difference. The concentration,
20 depending on the work, could be certainly higher in
21 the workplace than you expect to see at home.
22 Thats not to suggest that the home exposure by way
23 of concentration is at all trivial.
24 So there are differences in time,
25 tendency parameters that could impact the overall
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2 level of exposure.
3 Q. Doctor, would you agree that the worker
4 did not take home all of the asbestos fibers to
5 which he was exposed at work?
6 A. One hopes not.
7 Q. And, in fact, as you indicated in this
8 case, Mr. Horvath had even inhaled some of the
9 asbestos fibers to which he was exposed at work,
10 correct?
11 A. Correct.
12 Q. And, clearly, Mrs. Horvath wouldnt have
13 been exposed to those particular fibers, correct?
14 A. Good point.
15 Q. So youre agreeing, correct?
16 A. She wouldnt have been exposed to the
17 ones that he inhaled and resided in his lungs or the
18 rest of his body.
19 Q. And sometimes a worker such as
20 Mr. Horvath could inhale some of the asbestos fibers
21 from which he is exposed at work and they would go
22 into his throat or nose and he would get rid of them
23 or expel them by blowing his nose, spitting or
24 sneezing; is that correct?
25 A. Sure.
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2 Q. And in those situations Mrs. Horvath,
3 somebody like Mrs. Horvath wont be exposed?
4 A. I didnt catch the question. Could you
5 repeat the question?
6 Q. Let me change it a little bit.
7 MR. PLACITELLA: She wants to know if
8 Mr. Horvath ever blew his nose near his
9 wife?
10 MS. BANEZ: No. Please stop.
11 MR. PLACITELLA: Thats what I thought
12 the question was.
13 MS. BANEZ: No.
14 MR. PLACITELLA: Sorry.
15 Q. Sometimes a worker could inhale asbestos
16 fibers that go in his throat and nose?
17 A. Correct.
18 Q. And you testified in the past where that
19 would be a good thing because thats when he could
20 expel those fibers from his body, correct?
21 A. I dont think I said that would be a
22 good thing.
23 Q. Let me ask you, if asbestos fibers go
24 into the throat and nose of a worker such as
25 Mr. Horvath, there would be a way for him to expel
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2 those fibers, correct?
3 A. Its possible, sure.
4 Q. And would some of the ways be by blowing
5 his nose or sneezing and spitting?
6 A. Thats right.
7 Q. And assuming that he did those kinds of
8 things at work and not at home, would it be fair to
9 assume that with respect to those particular fibers
10 Mrs. Horvath would not have been exposed?
11 MR. PLACITELLA: Youre kidding, arent
12 you?
13 MS. BANEZ: No, Im not.
14 A. Sure. Sure.
15 MR. PLACITELLA: Youre not kidding with
16 these questions? These questions are
17 ridiculous.
18 MS. BANEZ: Stop, Chris.
19 MR. PLACITELLA: If he blew his nose at
20 work, she wouldnt have been exposed at
21 home?
22 MS. BANEZ: Im not going to go there.
23 MR. PLACITELLA: Im about to cut you
24 off. In fact, I am cutting you off.
25 MS. BANEZ: No, youre not.
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2 MR. PLACITELLA: Who didnt go yet? Im
3 cutting you off. If we have time, were
4 going to go back.
5 MS. BANEZ: You cannot do this.
6 MR. PLACITELLA: Once youre asking my
7 witness whether if he blows his nose at work
8 whether Mrs. Horvath could be exposed to the
9 blowing of the fibers out of his nose at
10 home, thats enough.
11 MS. BANEZ: Thats not what Im asking
12 and you know it.
13 MR. PLACITELLA: Next questioner,
14 please.
15 MS. BANEZ: You cannot do this.
16 MR. PLACITELLA: Im doing it.
17 MS. BANEZ: Were calling Agatha.
18 MR. PLACITELLA: Well call her after
19 lunch.
20 MS. BANEZ: We let you –
21 MR. PLACITELLA: I never asked your
22 witness whether he blew his nose at work.
23 You can ask questions when you decide what
24 questions you want to formulate that are
25 proper. Im not going to fight with you.
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2 MS. BANEZ: Im not fighting with you
3 either. This is not fair, you cannot do it.
4 MR. PLACITELLA: Go home and fight with
5 somebody. Dont fight with me.
6 MS. BANEZ: You can go home and fight
7 with your wife if you want to.
8 MR. RASNEK: Why dont you call Agatha
9 and resolve this?
10 MR. PLACITELLA: Hes going to go,
11 youll go and then well call Agatha. Maybe
12 he will ask some of the same questions.
13 MR. GOODMAN: Let me go. It may
14 give everybody a chance to calm down and we
15 can get back into it.
16
17 CROSS-EXAMINATION BY
18 MR. GOODMAN:
19 Q. My name is Fred Goodman. Im with the
20 firm Marin Goodman. Im going to ask you questions
21 about this case. If you need a break for any reason
22 or dont understand any of my questions, the same
23 rules apply as before, just let me know.
24 Ill try to get through this quickly.
25 Take a look at your report, Page 4, dated July 20,
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2 2007. Particularly on Page 4 in the second
3 paragraph you make a reference in here,
4 Mr. William Horvath recalled that stuff would be
5 flying all over the place, referring to
6 asbestos-containing insulation material. Do you
7 see that?
8 A. What line is it? Yes. Im sorry.
9 Okay.
10 Q. Did I read that correctly?
11 A. Yes.
12 Q. Assuming that this stuff you testified
13 about actually contained asbestos, would this
14 exposure be beyond background exposure?
15 A. Sure.
16 Q. Are you able to tell by looking at dust
17 whether or not it contains asbestos?
18 A. No.
19 Q. Assume that Ernest Horvath had removed
20 gaskets with packing material from pumps only a
21 handful of times, say, between one and ten times
22 during his entire career at Chevron, do you know if
23 that would have been a substantial contributing
24 factor to Frances Horvaths mesothelioma?
25 A. If that were his only exposure to
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2 packing and gasket material, given his lengthy
3 exposure to asbestos, I would consider that to be a
4 relatively modest contribution to this disease.
5 Q. When you say modest, what do you mean?
6 A. That would represent a, compared to
7 having had years of exposure to a variety of
8 asbestos-containing materials, that would represent
9 a small contribution to his overall exposure to
10 cause his disease.
11 Q. Could you tell one way or the other
12 whether it would have been a substantial
13 contributing factor in causing Frances disease?
14 MR. PLACITELLA: Objection. Asked and
15 answered.
16 A. The question you asked is about his use
17 of?
18 Q. Removal of gaskets.
19 A. Right.
20 Q. With packing material about one to ten
21 times.
22 A. And packing material?
23 Q. Gaskets with packing material, he
24 described somewhere between one and ten times over
25 his entire period at Chevron.
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2 MR. PLACITELLA: Object to the form.
3 A. I dont think that that kind of use,
4 that extremely limited use in the context of very
5 large exposure over a long period of time is very
6 significant.
7 Q. Subsequent to your report dated July 20,
8 2007, did you review any deposition transcripts –
9 A. No.
10 Q. — in this case?
11 A. No.
12 Q. Were you told about any testimony given
13 by Ernest Horvath after July 20th, 2007?
14 A. Today, Mr. Placitella told me that there
15 is one additional deposition that I havent yet been
16 provided with.
17 Q. Did you use that one additional
18 deposition at all in formulating any of your
19 opinions in this case?
20 A. Did I?
21 Q. Yes.
22 A. No. No. I havent seen it.
23 Q. Could you describe the crane or any
24 crane Ernest Horvath used while at Chevron?
25 A. No.
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2 Q. Do you know the size of the crane?
3 A. No.
4 Q. Have you ever been at the Chevron
5 facility?
6 A. No.
7 Q. Have you ever seen pictures of the
8 Chevron facility?
9 A. Im sure Ive driven by it, but I
10 havent seen pictures.
11 Q. Have you ever reviewed any studies
12 involving this Chevron facility?
13 A. Not that I recall.
14 Q. You mentioned today a series of studies,
15 reports or standards, regulations that you relied
16 upon in your views in this case?
17 MR. RASNEK: Objection on form.
18 Q. And that included OSHA, Selikoff, World
19 Health Organization, various articles, cement
20 studies and factories and friction products and a
21 series of other things. Do you know what the
22 earliest date of any of those studies, reports,
23 standards or regulations are?
24 MR. PLACITELLA: Im sorry. Earliest
25 date on asbestos disease?
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2 MR. GOODMAN: Of the various things he
3 testified to today that he relied on in
4 giving his opinion.
5 A. Well, I cite certain studies in response
6 to certain questions. I wouldnt necessarily say
7 that I necessarily rely upon those for this
8 particular case. I rely upon those to answer the
9 questions that were asked of the particular studies
10 that I cited today, the earliest one was probably
11 1960.
12 Q. Are you aware of any studies dated prior
13 to 1960 concerning work at refineries?
14 MR. RASNEK: Generally concern work at
15 refineries?
16 MR. GOODMAN: Yes.
17 A. No. But I dont, maybe its part of my
18 knowledge base to go back in history and identify
19 the evolution of knowledge of the health effects of
20 asbestos or any other chemical. I simply dont
21 track the chronology and who knew what when kind of
22 inquiry.
23 Q. Was there anything in Frances Horvaths
24 background that could have been a substantial factor
25 in causing her mesothelioma, excluding her husbands
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2 work at Chevron?
3 A. No.
4 Q. What do you base that on?
5 A. What do I base that on?
6 Q. Yes.
7 A. The information available about her work
8 and that nothing else was cited, no other source of
9 asbestos exposure was cited as being important by
10 her physicians.
11 Q. Have you rendered any reports in any
12 cases other than this case involving the Chevron
13 facility?
14 A. Not that I recall.
15 Q. Have you given testimony in any cases
16 other than this involving a Chevron facility?
17 A. Not that I recall. Some of these cases
18 have large numbers of defendants, and whether
19 Chevron is one of them or not, I wouldnt know.
20 Q. In particular to Perth Amboy Chevron?
21 A. Not that I recall.
22 Q. Do you know what work, if any, Ernest
23 Horvath performed in or around cooling towers?
24 A. No. I have to take a break.
25 Q. Im finished.
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2 MR. PLACITELLA: You have a couple.
3 Were going to have to take lunch.
4 (Whereupon, a recess was taken from
5 1:03 p.m. to 1:45 p.m.)
6
7 REDIRECT EXAMINATION BY
8 MR. RASNEK:
9 Q. Dr. Markowitz, just a couple of
10 questions this time. In your earlier testimony we
11 marked your entire file, and you indicated
12 Mr. Placitella had shown you the Selders report
13 which you glanced at?
14 A. Right.
15 Q. Did you look at any other documents in
16 preparation for this depositions other than your
17 file and the documents added to it today?
18 A. No, I didnt. I looked at an abstract
19 on mesothelioma in oil refinery workers to refresh
20 my memory, those studies. But documents, no.
21 Q. Do you recall what abstract you looked
22 at?
23 A. Some of the studies I mentioned before,
24 those are the ones I referred to.
25 Q. Just for clarification. Looking at your
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2 report, youre not able to quantify Mr. Horvaths
3 exposure, Ernest Horvaths exposure to asbestos, are
4 you?
5 A. Mrs. Horvath?
6 Q. Mr. Horvaths exposure to asbestos.
7 A. Not by any particular number, no.
8 Q. And the same with respect to Mrs.
9 Horvath; is that right?
10 A. Thats correct.
11 Q. Thank you, sir.
12
13 RE-CROSS-EXAMINATION BY
14 MS. BANEZ:
15 Q. Doctor, would you agree that asbestos
16 fibers are aerodynamic?
17 A. Yes.
18 Q. And would you tell me what you mean by
19 aerodynamic?
20 A. A tendency to, to become airborne and to
21 stay afloat for significant periods of time. And
22 the, in relation to the lung, the ability to be
23 inhaled into the lung properly because of its shape.
24 Q. Okay. And by that answer would it be
25 fair for me to assume that asbestos fibers are
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2 aerodynamic both outside of a persons body and
3 inside of a persons body?
4 A. Well, yes. Subject to the qualification
5 that Im referring to its behavior in the lung
6 wouldnt really apply to anywhere else in the body.
7 Q. Okay. I understand that. Thank you.
8 Now, would you agree because of the
9 aerodynamic properties of asbestos fibers, as a
10 worker moves around during the course of a work day
11 at least some asbestos fibers which land on his body
12 or his clothes could dislodge as a result of the
13 removal of clothing?
14 A. They may.
15 Q. Would that be true if the worker brushed
16 against something?
17 A. Sure.
18 Q. And would that also be true by just
19 simple air movement if its windy?
20 A. I dont know the answer to that
21 question.
22 Q. Okay. Thats fine.
23 For an asbestos fiber to cause injury,
24 must it be of a certain size?
25 A. I dont think that its been established
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2 that theres a particular size threshold for the
3 pathology or pathogenicity of asbestos.
4 Q. Is it possible to inhale an asbestos
5 fiber thats too big to cause injury?
6 A. I thought I was thinking about minimum
7 size. No. If a fiber is, fibers are too big to be
8 inhaled into the lungs or to get into the larynx,
9 theyre not going to cause injury.
10 Q. Okay. And would you agree with me that
11 asbestos fibers which are not visible on the naked
12 eye are the types of fibers that are more likely to
13 cause injury within the lung?
14 A. No. No. All asbestos that is able to
15 be inhaled is capable of causing injury to the lungs
16 regardless of whether its visible or not.
17 Q. Is it possible for asbestos fibers to
18 break down within the lungs?
19 A. Within the lungs?
20 Q. Yes.
21 A. Sure.
22 Q. And what happens when the asbestos
23 bodies breaks down?
24 MR. PLACITELLA: You mean fibers?
25 MS. BANEZ: Im sorry. What did I say?
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2 MR. PLACITELLA: Body.
3 Q. Im sorry. I meant fibers.
4 A. Well, they can disappear or they can be
5 translocated to other parts of the body and they can
6 enter the blood stream.
7 Q. Now, is there some sort of a bodily
8 function that breaks down the asbestos in that way
9 that you just described?
10 A. There is some capacity of the body to
11 eliminate some of the asbestos fibers –
12 Q. And what is that?
13 A. — over time.
14 Q. And what is that process?
15 A. I dont know that its known.
16 Q. I see. Okay.
17 Do you know whether or not asbestos
18 fibers outside of a persons body can be broken down
19 in the same sort of way –
20 A. It wont be the same way.
21 Q. — where its eliminated and dissipated?
22 A. It wont be in the same way.
23 Q. I dont mean the process. But, rather,
24 the result.
25 MR. PLACITELLA: Object to the form.
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2 A. I dont know the answer to that
3 question.
4 Q. Okay. Earlier you testified about the
5 cheese cloth that Mr. Horvath apparently brought
6 home to Mrs. Horvath, and she used that cheese cloth
7 to do cleaning and dusting in the home. Do you
8 recall that testimony, sir?
9 MR. PLACITELLA: Objection.
10 A. I recall reference to that. I dont
11 recall the precise question and answer.
12 Q. Okay. Thats fine. Do you have any
13 opinion, sir, whether or not Mrs. Horvaths exposure
14 to asbestos from that recycled cheese cloth would be
15 sufficient to cause her mesothelioma?
16 A. Well, I dont have any evidence that in
17 fact she used that material. That was in the
18 medical records, but wasnt corroborated anywhere in
19 the depositions by Mr. Horvath, his brother or the
20 statement of Mrs. Horvath. So I dont really attach
21 a whole lot of credence to that report.
22 Q. But assuming she used that to clean
23 house, do you think that by itself could be
24 sufficient to cause her mesothelioma?
25 MR. PLACITELLA: Objection.
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2 A. If she used the asbestos-containing
3 cloth in the home in a manner by that the asbestos
4 became airborne, and if that occurred over an
5 appreciable period of time, then, yes, it would have
6 contributed to her mesothelioma.
7 Q. You mentioned it would have contributed
8 to her mesothelioma. My question was whether or not
9 that standing alone without any regards to any other
10 on exposure she may have had, would that have been
11 sufficient to cause the mesothelioma by itself?
12 MR. RASNEK: Let me object to the form.
13 Dr. Markowitz already stated that he has
14 just seen that comment in a medical record
15 and has no information about it.
16 A. That potential exposure alone, again,
17 subject to details about its ability to release
18 asbestos fibers and its use over a significant
19 period of time, if those qualifications are met,
20 then it could have alone caused her mesothelioma.
21 Q. Doctor, based upon your knowledge,
22 experience and expertise, does fiberglass cause
23 mesothelioma?
24 A. Not in humans.
25 Q. Again, based upon your knowledge,
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2 experience and expertise, does mineral wool cause
3 mesothelioma?
4 A. Not in commercial use.
5 Q. Likewise, based upon your knowledge,
6 experience and expertise, does
7 non-asbestos-containing foam glass cause
8 mesothelioma?
9 A. What kind of glass?
10 Q. Foam glass.
11 A. Foam?
12 Q. Foam glass.
13 A. F-O-A-M?
14 Q. Yes.
15 A. I dont know what that is.
16 Q. Okay. So you have no knowledge about
17 that at all?
18 A. Thats correct.
19 Q. With regard to the previous materials
20 you mentioned, Im not referring to ways in which
21 those materials might have been created, shaped and
22 subject to animal testing, Im referring to human
23 experience with those materials.
24 A. Yes.
25 Q. Doctor, when you read Mr. Horvaths
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2 deposition, do you recall reading the testimony
3 where he indicated that there were times when he
4 changed his clothes, work clothes at the Chevron
5 facility?
6 (Whereupon, the witness peruses the
7 document.)
8 A. I dont recall that.
9 Q. Okay. Well, assume for the purpose of
10 this question that he testified that there were
11 times when he changed his work clothes at the
12 facility. All right?
13 A. Sure.
14 Q. Now, do you have an opinion as to
15 whether or not the mere act of his changing of his
16 clothes at the facility would dislodge some of the
17 asbestos fibers that may have landed on his clothes
18 during the course of the day?
19 A. Its likely.
20 Q. Doctor, you rendered a report in this
21 case in which you indicated in your opinion that
22 Mrs. Horvaths mesothelioma was caused by asbestos.
23 My question to you, sir, is, were you asked to
24 render an opinion as to the — which entity or entities
25 legally caused or contributed or should be held
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2 responsible for her mesothelioma?
3 A. No.
4 Q. Did you in fact do any such work even if
5 you werent asked?
6 A. For me to opine about which entities are
7 legally responsible for the disease would be outside
8 of my assignment and my domain of expertise.
9 Q. Okay. Consequently, you dont intend to
10 offer or profess such an opinion at trial, do you?
11 MR. PLACITELLA: Object to the form.
12 A. At trial I am asked questions and I
13 answer the questions that are posed to me.
14 Q. Im going to pose this question to you
15 now, sir. Do you have an opinion as to which entity
16 or entities are legally responsible for Mrs.
17 Horvaths mesothelioma?
18 MR. PLACITELLA: Objection to form.
19 MR. RASNEK: Objection on form.
20 A. I dont have an answer. Im not going
21 to be able to comment now or at trial about who was
22 legally responsible for what.
23 Q. Okay. Let me just look through my
24 notes. I think Im done.
25 MR. RASNEK: I just have one more
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2 question.
3
4 REDIRECT EXAMINATION BY
5 MR. RASNEK:
6 Q. Doctor, do you have a current curriculum
7 vitae?
8 A. Not with me.
9 Q. Do you have one?
10 A. Sure.
11 MR. PLACITELLA: Ill send it to you.
12 Q. If you could give it to Mr. Placitella
13 so he can supply it to us?
14 MR. PLACITELLA: No problem.
15 Q. I also reserve on our document request
16 in terms of any specific literature the doctor will
17 rely upon at trial?
18 MS. BANEZ: I join in that.
19 MR. PLACITELLA: The Special Masters
20 ruling is if the literature is in a public
21 domain its not something that has to be
22 produced as long as its been delineated.
23 Thats been her ruling prior.
24 MR. RASNEK: We can argue about whether
25 its been delineated. But we can talk about
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1 Steven Markowitz, MD – Re-Cross
2 that later.
3 MR. PLACITELLA: All right.
4
5 RE-CROSS-EXAMINATION BY
6 MS. BANEZ:
7 Q. Going back earlier that there may be
8 some asbestos fibers that may be too big to cause
9 injury within the lung, can you quantify how big
10 those fibers would be?
11 A. Generally, fibers that are longer than
12 15 or 20 microns are unlikely to make it into the
13 lung. Theyre more likely to be interrupted higher
14 up in the respiratory system.
15 Q. Okay. And for fibers that are less
16 than, say, 15 microns, its your opinion that those
17 are the ones that would make their way, that can
18 make their way into the lungs?
19 A. Certainly less than ten, and some of
20 them between ten and 15 also.
21 Q. And does the size of the fiber determine
22 the type of injury that would be caused within the
23 lung, or does it matter?
24 A. I dont understand the question. Does
25 it matter to what?
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2 Q. Okay. Can the size of the asbestos
3 fiber matter in determining whether or not it caused
4 mesothelioma, as opposed to asbestosis, as opposed
5 to lung cancer, as opposed to something else?
6 A. Not that I know of.
7 Q. Im done. Thank you.
8 (Deposition Concluded.
9 Time Noted: 2:03 p.m.)
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2 C E R T I F I C A T E
3
4 STATE OF NEW YORK )
5 COUNTY OF NEW YORK)
6
7 I, ELEANOR SEKULIC, a Notary Public of the
8 State of New York, do hereby certify that the
9 foregoing deposition of STEVEN MARKOWITZ, MD was
10 taken before me on September 5, 2008.
11 The said witness was duly sworn before the
12 commencement of his testimony, the said
13 testimony was taken stenographically by myself and
14 then transcribed. The within transcript is a true
15 record of the said deposition.
16 I am not connected by blood or marriage with
17 any of the said parties, nor interested directly or
18 indirectly in the matter in controversy, nor am I in
19 the employ of any of the Counsel.
20
21 Dated:____________________
22
23 __________________________
24 ELEANOR SEKULIC
25
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