Mesothelioma Deposition

Jerry Johnson is a union carpenter who worked all over the state of New Jersey constructing various industrial complexes. As a result, Mr. Johnson developed mesothelioma. Below is Mr. Johnsons account of how that exposure took place.

1 SUPERIOR COURT OF NEW JERSEY
LAW DIVISION - MIDDLESEX COUNTY
2 DOCKET NO. MID-L-2994-90 AS
3
JAMES JOHNSON and MARY
4 JOHNSON, DeBENE ESSE
DEPOSITION UPON
5 Plaintiffs, ORAL EXAMINATION
OF
6 vs. JAMES J. JOHNSON
VOLUME 1
7 3M COMPANY, et al.,
8 Defendants.
9
10 TRANSCRIPT of the deposition of
11 JAMES J. JOHNSON, a Plaintiff, called for Oral
12 Examination by the Plaintiff in the above-entitled
13 action, said deposition being taken pursuant to Superior
14 Court of Civil Practice, by and before PATRICIA J.
15 RUSSONIELLO, a Certified Court Reporter and Notary
16 Public of the State of New Jersey, at the EMBASSY
17 SUITES, Waterview Room, 909 Parsippany Boulevard,
18 Parsippany, New Jersey, on Thursday, September 17, 2009,
19 commencing at 11:18 oclock in the forenoon.
20
21
22 BRODY DEPOSITION SERVICES
Certified Shorthand Reporters & Videographers
23 7 Elm Street
Westfield, New Jersey 07090
24 (908) 789-2000
25
0002
1 A P P E A R A N C E S:
2 COHEN, PLACITELLA & ROTH, P.C.
3 By RACHEL A. PLACITELLA, ESQ.
4 127 Maple Avenue
5 Red Bank, New Jersey 07701
6 (732) 747-9003
7 Attorneys for Plaintiffs
8
9 LAVIN, ONEIL, RICCI, CEDRONE & DI SIPIO
10 By TIMOTHY J. MC HUGH, ESQ.
11 420 Lexington Avenue, Suite 2900
12 New York, New York 10170
13 (212) 319-6898
14 Attorneys for Defendant, 3M Company
15
16 LAVIN, ONEIL, RICCI, CEDRONE & DI SIPIO
17 By CAROLYN L. McCORMACK, ESQ.
18 190 North Independence Mall West, Suite 500
19 Philadelphia, Pennsylvania 19106
20 (215) 627-0303
21 Attorneys for Defendant, International Business
Machines Corporation
22
23
24
25
0003
1 A P P E A R A N C E S (Continued):
2 MARKS, ONEILL, OBRIEN & COURTNEY, P.C.
3 By DENNIS C. SCHMIEDER, ESQ.
4 Cooper River West
5 6981 North Park Drive, Suite 300
6 Pennsauken, New Jersey 08109
7 (856) 663-4300
8 Attorneys for Defendant, Georgia-Pacific
9
10 CARUSO, POPE, EDELL & PICINI, P.C.
11 By MARC EDELL, ESQ.
12 60 Route 46 East
13 Fairfield, New Jersey 07004
14 (973) 667-6000
15 Attorneys for Defendants, Union Carbide
Corporation and CertainTeed
16
17 PORZIO, BROMBERG & NEWMAN, P.C.
18 By CHRISTOPHER P. DE PHILLIPS, ESQ.
19 100 Southgate Parkway
20 Morristown, New Jersey 07962-1997
21 (973) 889-4322
22 Attorneys for Defendant, Warner-Lambert Co.
23
24
25
0004
1 A P P E A R A N C E S (Continued):
2 WILBRAHAM, LAWLER & BUBA, PC
3 By MICHAEL J. BLOCK, ESQ.
4 1818 Market Street, Suite 3100
5 Philadelphia, Pennsylvania 19103-3631
6 (215) 972-2850
7 Attorneys for Defendant, Conopco, Inc., as
successor to Best Foods, N.A. (improperly
8 named as Corn Products)
9
10 SALMON, RICCHEZZA, SINGER & TURCHI, LLP
11 By JOHN J. DUGAN, ESQ.
12 Tower Commons
13 123 Egg Harbor Road, Suite 406
14 Sewell, New Jersey 08080
15 (856) 842-0781
16 Attorneys for Defendant, Beazer East, Inc.
(Koppers Co.)
17
18 MC GIVNEY & KLUGER, P.C.
19 By JENNIFER L. HALLY, ESQ.
20 23 Vreeland Road, Suite 220
21 Florham Park, New Jersey 07932
22 (973) 822-1110
23 Attorneys for Defendant, Horizon Healthcare
24
25
0005
1 A P P E A R A N C E S (Continued):
2
3 MC GIVNEY & KLUGER, P.C.
4 By MICHAEL L. LAZARUS, ESQ.
5 23 Vreeland Road, Suite 220
6 Florham Park, New Jersey 07932
7 (973) 822-1110
8 Attorneys for Defendant, DAP
9
10 MORGAN, MELHUISH, ABRUTYN
11 By ROBERT J. MACHI, ESQ.
12 651 West Mount Pleasant Avenue, Suite 200
13 Livingston, New Jersey 07039
14 (973) 994-2500
15 Attorneys for Defendant, Novartis Pharmaceuticals
16
17 HOLLINGSWORTH, LLP
18 By PATRICK, R. HARKINS, ESQ.
19 1350 I Street, N.W.
20 Washington, D.C. 20005
21 (202) 898-5800
22 Attorneys for Defendant, Novartis Pharmaceuticals
23
24
25
0006
1 A P P E A R A N C E S (Continued):
2 GIBBONS, PC
3 By RICHARD A. REINARTZ, ESQ.
4 One Gateway Center
5 Newark, New Jersey 07102-5310
6 (973) 596-4500
7 Attorneys for Hoffmann-LaRoche, Inc.
8
9 DAY PITNEY, LLP
10 By MARC D. CROWLEY, ESQ.
11 200 Campus Drive
12 Florham Park, New Jersey 07932
13 (973) 966-8166
14 Attorneys for Defendant,
International Paper Company
15
16 WILSON, ELSER, MOSKOWITZ, EDELMAN
& DICKER, LLP
17
By CAROLYN F. OCONNOR, ESQ.
18
33 Washington Street, 18th Floor
19
Newark, New Jersey 07102-3017
20
(973) 624-0800
21
Attorneys for Defendant,
22 Prudential Insurance Company
23
24
25
0007
1 A P P E A R A N C E S (Continued):
2
3 MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN
4 By PAUL C. JOHNSON, ESQ.
5 Woodland Falls Corporate Park
6 200 Lake Drive East, Suite 300
7 Cherry Hill, New Jersey 08002
8 (856) 414-6008
9 Attorneys for Defendant, Kaiser Gypsum
10
11 HOFHEIMER, GARTLIR & GROSS, LLP
12 By MARINA I. GLAVIN, ESQ.
13 530 Fifth Avenue
14 New York, New York 10036
15 (212) 944-0500
16 Attorneys for Defendant, Rapid American
17
18 BRAFF, HARRIS & SUKONECK, ESQ.
19 By ANDREW M. LUSSKIN, ESQ.
20 570 West Mount Pleasant Avenue
21 Livingston, New Jersey 07039
22 (973) 994-6677
23 Attorneys for Defendant, Retail Property Trust
24
25
0008
1 A P P E A R A N C E S (Continued):
2 MARON, MARVEL, BRADLEY & ANDERSON, P.A.
3 By MARK G. LIONETTI, ESQ.
4 1700 Market Street, Suite 1500
5 Philadelphia, Pennsylvania 19103
6 (215) 231-7100
7 Attorneys for Defendant,
Industrial Holdings Corporation
8
9 HARRIS BEACH, PLLC
10 By ROBERT A. SCHAEFER, JR., ESQ.
11 100 Wall Street
12 New York, New York 10005
13 (212) 687-0100
14 Attorneys for Defendant, Kentile Floors, Inc.
15
16
A L S O P R E S E N T:
17
Gerard J. Genna, Videographer
18
19
20
21
22
23
24
25
0009
1 I N D E X
2 WITNESS PAGE
3 JAMES J. JOHNSON
4 Direct by Ms. Placitella 10
5
6
7
E X H I B I T S
8
NUMBER DESCRIPTION PAGE
9
P-4 Laser color copy 11
10
P-5 Laser color copy 11
11
P-6 Copy of Surgical Pathology Report 11
12
P-7 Laser color copy 11
13
P-8 Laser color copy 11
14
P-9 Laser color copy 11
15
P-10 Laser color copy 11
16
P-11 Laser color copy 11
17
P-12 Laser color copy 11
18
P-13 Laser color copy 11
19
P-14 Laser color copy 11
20
P-15 Laser color copy 11
21
P-16 Black and white laser copy (DAP) 11
22
P-17 Black and white laser copy, re, 11
23 wedding picture and invitation
24 P-18 Laser color copy 11
25 P-19 Black and white laser copy 11
0010
1 E X H I B I T S (Continued)
2 NUMBER DESCRIPTION PAGE
3 P-20 Laser color copy 11
4 P-21 Laser color copy 11
5 P-22 Laser color copy 11
6 P-23 Laser color copy 11
7 P-24 Laser color copy 11
8 P-25 Laser color copy 11
9
10 (Exhibits retained by counsel.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
0011
1 (Exhibit P-4 through Exhibit P-25 marked
2 for identification.)
3 MS. PLACITELLA: Were on the
4 stenographic record.
5 Does anybody have any objections theyd
6 like to place on the record before we begin?
7 MR. LAZARUS: Sure. Why not?
8 Mike Lazarus for DAP.
9 I object to a -- I dont know if any of
10 the color power points if theyve been marked already --
11 MS. PLACITELLA: Theyre all marked.
12 MR. LAZARUS: -- or not but its -- you
13 have a marked copy?
14 MS. PLACITELLA: Yeah.
15 MR. LAZARUS: I would object --
16 MS. PLACITELLA: You want to start?
17 MR. LAZARUS: Yeah -- to the American
18 flag one which is P --
19 MS. PLACITELLA: 4.
20 MR. LAZARUS: -- P-4, and the jury --
21 one depicts a jury box and says The Jury Will Decide
22 at the top. Thats P-5.
23 The next one is -- I dont know what
24 youre going to do with the red -- this is obviously
25 going to be evidence at some point in time. Its just
0012
1 the red flag is on there. I dont know what youre
2 going to do with this witness with that document. Im
3 just letting you know so -- I dont know what youre
4 going -- how youre going to use that through the --
5 through the witness today so that may be objected to
6 at the time.
7 And --
8 MS. PLACITELLA: Well, I prefer you just
9 to -- you want to put objections now? You could put
10 objections afterwards. I just dont want objections
11 during the course of --
12 MR. LAZARUS: Yeah.
13 MS. PLACITELLA: -- the deposition, okay?
14 MR. LAZARUS: Thats fine. Ill object
15 to it now.
16 MS. PLACITELLA: Okay.
17 MR. LAZARUS: Then my only objection --
18 I dont have any issue with anything else except there
19 is one on there. My client is DAP. I object to that.
20 MS. PLACITELLA: Okay.
21 MR. LAZARUS: Theres authentication
22 issues. Theres --
23 MS. PLACITELLA: Thats P-16, correct?
24 MR. LAZARUS: P-16 would be my objection.
25 Thank you.
0013
1 MS. PLACITELLA: Okay. Mr. Schmieder,
2 do you have anything about any -- anything you want to
3 put on the record?
4 MR. SCHMIEDER: I do but it looks like
5 theres somebody else right in front of me.
6 MR. LIONETTI: I just want to go over a
7 couple of ground rules first.
8 Marc Lionetti for Industrial Holdings.
9 One objection is for the benefit of all,
10 Rachel?
11 MS. PLACITELLA: Absolutely.
12 MR. LIONETTI: Okay. And are we going
13 off the video to express our objections or are we
14 going to make our objections? How do -- you said you
15 didnt want us to make objections during the video.
16 Does that refer to all objections or...
17 MS. PLACITELLA: I dont want lengthy
18 objections to the power point. Thats why I want it
19 on the record now. You can -- you can preserve it
20 till the time of trial.
21 You could make objections to specific
22 questions that I ask but we dont need to have people
23 speaking in unison if its one objection is deemed to
24 be an objection by all, correct?
25 MR. LIONETTI: Thats fine, but as far
0014
1 as all of the other objections that we may have to
2 your questions were making them now or youre giving
3 us objections -- the ability to make them later?
4 MS. PLACITELLA: No. You...
5 MR. LIONETTI: During the course of the
6 video?
7 MS. PLACITELLA: You can make it during
8 the course of the video.
9 MR. LIONETTI: I know I can but Im
10 asking you if youre saying -- youre also giving us a
11 continue -- an objection that we dont have to make or
12 you want us to make them?
13 MS. PLACITELLA: I dont understand what
14 youre saying.
15 MR. LIONETTI: Are you going to take the
16 position that if I dont make them that Ive waived
17 them?
18 MS. PLACITELLA: Yes.
19 MR. LIONETTI: Then we have to make them
20 during the video. Thats what I --
21 MS. PLACITELLA: Yes.
22 MR. LIONETTI: With respect to the
23 exhibits on the power point that relate to my client --
24 MS. PLACITELLA: Yes.
25 MR. LIONETTI: I dont know the numbers.
0015
1 I object again with respect to
2 authentication issues, relevance issues. Theyre not
3 related to the testimony that Mr. Johnson has given.
4 Theyre different products and I think theyre not
5 relevant to the discussion today. I havent been
6 provided copies of them before. Theres no foundation
7 for them. I object to their use.
8 That was P --
9 MS. PLACITELLA: 14.
10 MR. LIONETTI: -- 14 and P-15.
11 I obviously join in the objections to
12 this state. They go to everybody with respect to the
13 general exhibits and I appreciate that.
14 MS. PLACITELLA: Okay.
15 MR. BLOCK: How you doing?
16 MS. PLACITELLA: Hi.
17 MR. BLOCK: Michael Block on behalf of
18 Conopco.
19 P-13 I think it is. I have an objection
20 to that one. Hasnt been made yet. I dont think
21 anybodys objected to P-13 as far as foundation,
22 relevance and the use of it.
23 MS. PLACITELLA: Okay.
24 MR. DE PHILLIPS: Chris DePhillips. I
25 represent Warner-Lambert. I join in the objection
0016
1 about the American flag, the picture of the jury.
2 Rachel, just I guess for the benefit of
3 the group, the video clips --
4 MS. PLACITELLA: Yes.
5 MR. DE PHILLIPS: -- that you intend to
6 use, can you explain your proffer or what you intend
7 to do with those at the time that you question him
8 about it?
9 MS. PLACITELLA: Well, Im going -- Im
10 going to ask him if that depicts the -- if thats an
11 accurate depiction of workers who sanded joint
12 compound in his presence at the various work sites;
13 not at specific ones.
14 MR. DE PHILLIPS: So youre not going to
15 ask --
16 MS. PLACITELLA: No.
17 MR. DE PHILLIPS: Youre not going to go
18 premises by premises?
19 MS. PLACITELLA: No.
20 MR. DE PHILLIPS: Okay. I reserve the
21 right to object to specific questions at the time on
22 the video.
23 MS. PLACITELLA: Absolutely.
24 MR. DE PHILLIPS: Okay. Thank you.
25 MR. SCHMIEDER: Hi. Dennis Schmieder
0017
1 for Georgia-Pacific.
2 Id like to object to plaintiffs
3 Exhibits 7, 8, 9 and 10 based on relevance, foundation
4 and also that these videos are exactly the same if not
5 comparable to the videos that Judge McCormick had
6 previously ruled upon in the Klemm matter, K-l-e-m-m,
7 and she precluded them on the basis elucidated in the
8 record there.
9 I would also like to object to P-11 for
10 reasons of authentication and also that theyre not
11 relevant and theres no foundation for them insofar as
12 theres no testimony in the record that Mr. Johnson
13 ever used or was exposed to any of the products
14 depicted in P-11.
15 (Pause.)
16 MS. PLACITELLA: I think everyone has
17 covered this.
18 Are we ready to start?
19 (Pause.)
20 THE VIDEOGRAPHER: Todays deposition
21 will be video recorded. The microphones are live and
22 the camera will continue to run throughout the entire
23 deposition as long as the deposition is continuing on
24 the record.
25 We are now on the record in the matter
0018
1 of James Johnson versus 3M Company, et al.
2 Todays date is September 17th, 2009.
3 The time is approximately 11:18 a.m.
4 This is Docket Number MID-L-2994-09.
5 This is a video-recorded deposition, de bene esse
6 deposition of James Johnson being taken at the Embassy
7 Suites Hotel, Parsippany, New Jersey.
8 My name is Gerard Genna. Im from New
9 Jersey Certified Legal Videography. The court reporter
10 is Patricia Russoniello from Brody Court Reporting
11 Services.
12 Appearances will all be noted in the
13 transcript.
14 Please administer the oath.
15 J A M E S J. J O H N S O N, having been duly sworn
16 by the Notary, testifies as follows:
17 DIRECT EXAMINATION BY MS. PLACITELLA:
18 Q. So, Mr. Johnson, youre JJJ, correct?
19 A. Right.
20 Q. Okay. Are you aware that youre here
21 today to have your deposition taken as trial
22 testimony?
23 A. Yes.
24 Q. Are you aware that if at the time of
25 trial youre not feeling well this deposition will be
0019
1 played in the courtroom instead of you actually coming
2 to Court and testifying in person?
3 A. Yes.
4 Q. Are you aware that youre testifying as
5 if youre in trial before a jury who will decide this
6 case?
7 A. Yes.
8 Q. You understand that youre testifying
9 today under oath, correct?
10 A. Yes.
11 Q. Now, were here at the Embassy Suites in
12 Parsippany. This isnt the first time that you came
13 to this hotel in connection with this case, correct?
14 A. Yes.
15 Q. And do you recall how many times that
16 youve come here before today?
17 A. Eight other times.
18 Q. Okay. And you understand that you sat
19 for discovery deposition as defense attorneys have the
20 right to ask you questions before today, correct?
21 A. Yes.
22 Q. Okay. And is it true that you werent
23 here for eight full days, correct?
24 A. Pardon?
25 Q. You werent here for eight full days?
0020
1 A. Yes, thats right.
2 Q. Would you say you were here the average
3 of maybe three hours per day?
4 A. Yes.
5 Q. Okay. And why is that? Why did we not
6 conduct the deposition for complete days?
7 A. Well, because of my health mostly.
8 Q. Okay. And do you recall whether or not
9 you were undergoing chemotherapy during the time that
10 we conducted the discovery deposition?
11 A. Yes. During the whole time.
12 Q. And we -- we had to try to fit the
13 deposition in between your chemotherapy treatments,
14 correct?
15 A. Yes.
16 Q. Okay. How many chemotherapy treatments
17 have you had to date?
18 A. Six.
19 Q. And did you experience any side effects
20 from the chemotherapy?
21 A. Yes.
22 Q. What were they?
23 A. I had lack of strength for one.
24 Disorientation another one. I had constipation,
25 insomnia, memory loss. Basically that covers it.
0021
1 Q. Now, did you have occasion to consult
2 with any doctors in connection with your chemo?
3 A. Yes.
4 Q. What doctor -- who did you consult with?
5 A. Dr. Robert Taub.
6 Q. And after talking to your doctors did
7 you learn what your diagnosis was?
8 A. Yes.
9 Q. And what was it?
10 A. It was mesothelioma.
11 Q. Okay. And did you learn after talking
12 to your doctors what the cause of your mesothelioma
13 was?
14 MR. LAZARUS: Objection. Mike Lazarus
15 for the record but I think everybody...
16 (Last question read back by the reporter.)
17 Q. And you can answer the question.
18 A. Yeah. It was asbestos-related.
19 Q. Okay. Now, Im going to show you whats
20 been marked on the screen as P-6 for identification.
21 Did you have an occasion to see that document?
22 A. Yes.
23 Q. Is that your medical report?
24 A. Yes.
25 Q. And it indicates James Johnson at the top?
0022
1 (Pause.)
2 A. I think they -- you want to take a look
3 at this? I think they cut...
4 Q. Right there.
5 A. Oh, yeah. Here it is. Okay.
6 Q. Okay.
7 A. Sorry.
8 Q. And can you see where it says the
9 diagnosis indicating mesothelioma?
10 A. Yes.
11 Q. Do you also notice that it indicates a
12 diagnosis of calcified pleural plaques?
13 DEFENSE COUNSEL: Objection.
14 A. Yes.
15 Q. Did you have an occasion -- strike that.
16 What was your trade while you were
17 working, sir?
18 A. Carpenter.
19 Q. And as a carpenter did you have an
20 occasion to do any home improvement jobs that -- in
21 any home that you owned?
22 A. Yes.
23 Q. And what home did you do home
24 improvement jobs?
25 A. On my home I owned on John Henry Drive
0023
1 in Montville.
2 Q. Okay. And --
3 A. 16 John Henry.
4 Q. Okay. Do you recall that you had
5 testified that you had occasion to build an outside
6 structure?
7 A. Yes.
8 Q. And what did you do?
9 A. I put on a two-car garage.
10 Q. And do you recall when that job was
11 completed?
12 A. Pardon?
13 Q. Do you recall when you did that job?
14 A. Had to be the early 60s.
15 Q. You had testified during your deposition
16 that you believed that it was the late 60s. Does
17 that refresh your --
18 A. Was it the late 60s?
19 Q. Does that refresh your recollection?
20 A. Yeah. Okay. Yeah, youre right on
21 that. Sorry about that.
22 Q. You had testified that you had done
23 several home improvement jobs in your home and I
24 believe that was the last one that you had done. Is
25 that correct --
0024
1 A. Yes.
2 Q. -- according to your recollection?
3 A. Yes.
4 Q. Im going to show you whats been marked
5 as D-1 for identification.
6 Youve already seen D-1 for
7 identification. Is that correct? Mr. Johnson?
8 A. Wait a minute. I didnt -- I didnt
9 hear your question.
10 Q. You have already seen D-1 for
11 identification, correct?
12 A. Is that B-1 youre talking --
13 Q. No. D-1. This -- I mean P-1. Im
14 sorry. Thats your Answers To Interrogatories? This
15 document.
16 A. Yes.
17 Q. Okay. And if you look on Page 2 it
18 indicates the homes that you lived at and --
19 A. Mmmm.
20 Q. -- if you see I-2, number 5, it
21 indicates the John Henry Drive.
22 A. Yes.
23 Q. Correct?
24 A. Right.
25 Q. And that was in -- that you just talked
0025
1 about that you did the home improvement job, correct?
2 A. Yes.
3 Q. And according to this -- your Answers To
4 Interrogatories when did you move into John Henry
5 Drive? If you look at the Answers To Interrogatories,
6 sir.
7 A. 1964.
8 Q. Okay. So if you moved in 1964 and the
9 garage was the last job that you had completed do you
10 recall now that you had testified that you completed
11 that job in the late 60s?
12 A. Yes.
13 Q. Okay.
14 A. Youre right.
15 Q. Now, what was involved in your
16 construction of the garage?
17 A. Foundation work, framing it, siding it,
18 roofing it and insulating and sheetrock on the --
19 completely on the inside.
20 Q. Now, in the process of putting up the
21 sheetrock did you have an occasion to use a joint
22 compound?
23 A. Yes.
24 DEFENSE COUNSEL: Objection. Leading.
25 Q. And what is the procedure in putting up
0026
1 the walls in the garage? Can you explain?
2 A. Well, you nail up the sheetrock first,
3 then you tape and spackle it. Is that what youre
4 talking about?
5 Q. Yes.
6 A. Tape and spackle it. Three coats. It
7 gets sanded between each coat until you get to a
8 finish coat ready for painting.
9 Q. Okay. Now, you had indicated spackle.
10 Do you recall the brand name of the spackle that you
11 used for the garage job?
12 A. Yes. It was Georgia-Pacific.
13 Q. And how did -- did you personally
14 purchase the Georgia-Pacific --
15 A. Yes.
16 Q. -- compound?
17 And how was it packaged?
18 A. At that time it was -- it was in
19 five-gallon plastic tubs.
20 Q. Okay. And how did you know that it was
21 Georgia-Pacific?
22 A. Well, in the trade most of the tapers
23 and spacklers use Georgia-Pacific because as soon as
24 you open the bucket it was ready to be used. You
25 didnt have to mix it; otherwise, you didnt have to
0027
1 stir it up so it was a time saver. You could use it
2 directly out of the bucket right onto the walls
3 without mixing it.
4 Q. Is that why you purchased it, sir?
5 A. Yes.
6 DEFENSE COUNSEL: Objection. Move to
7 strike the nonresponsive portion of the prior answer.
8 Q. Can you explain -- strike that.
9 Why did you purchase the Georgia-Pacific
10 joint compound?
11 A. Didnt I just give that answer?
12 Q. Yeah.
13 A. Okay.
14 DEFENSE COUNSEL: Objection. Leading.
15 A. Because --
16 MS. PLACITELLA: Thats not leading,
17 Dennis.
18 Oh. Strike that.
19 Q. Mr. Johnson, why did you purchase the
20 Georgia-Pacific joint compound?
21 A. Because you could use the compound
22 directly out of the bucket without mixing it. It was
23 a time saver and thats what most of the guys I -- in
24 the field used because of that specific reason.
25 Q. Now, when you said that you could use it
0028
1 right out of the bucket was there a different process
2 that had to be used with other joint compounds?
3 A. Yes. With USG you would have to --
4 because its a little on the stiff side, youd have to
5 mix water with it and take an electric drill and with
6 a paddle and actually mix the five-gallon bucket
7 before you used it.
8 Q. How -- can you explain the process of
9 how you applied the Georgia-Pacific joint compound
10 when you were constructing the garage?
11 A. Well, you use a spackling tool or a
12 trowel and you put the -- you put the tape and the
13 spackle on with that -- using that particular process.
14 Q. And then what did you do?
15 A. Like I say, you put one coat on, you let
16 it dry, you rough sand it. Put another coat on, let
17 it dry, rough sand it. Then you put the third coat on
18 and finish sand it.
19 Q. Can you describe the conditions of the
20 air in your vicinity when you were sanding the
21 Georgia-Pacific joint compound when you were
22 constructing the garage?
23 DEFENSE COUNSEL: Objection. Vague.
24 Q. You can answer.
25 A. Well, the air would be dusty because
0029
1 youd be sanding.
2 Q. Do you recall whether or not the air was
3 dusty?
4 A. Yes, it was dusty.
5 Q. Was the garage door open at the time
6 that you were sanding the joint compound if you --
7 A. Yes.
8 Q. -- recall?
9 A. Yes.
10 Q. Was -- you had indicated that the
11 conditions of the air were dusty. Was the dust
12 visible --
13 A. Yes.
14 Q. -- to your sight?
15 Did you breathe in the dust?
16 A. Yes.
17 Q. You -- what was -- while you were a
18 carpenter was there one particular job of carpentry
19 that you participated in more than other jobs?
20 DEFENSE COUNSEL: Objection.
21 A. Yes. The interior con --
22 DEFENSE COUNSEL: Just limited to --
23 limited to the time. Can we have a time frame on
24 that, counsel?
25 MS. PLACITELLA: Well --
0030
1 DEFENSE COUNSEL: The questions vague.
2 MS. PLACITELLA: Okay.
3 Q. As a carpenter did you routinely do all
4 different types of carpentry when you were working
5 full time or were you pretty much focused on one
6 particular aspect of carpentry?
7 DEFENSE COUNSEL: Same objection.
8 A. Pretty much focused on one aspect. It
9 was a ceiling business. Thats what I was into mostly.
10 Q. Okay. So after your general carpentry
11 experience you concentrated on -- on ceilings?
12 A. Yes.
13 Q. Okay. And when you were -- when you say
14 ceilings did that involve the installation of
15 ceilings?
16 A. Yes.
17 Q. When you were installing ceilings at
18 various job sites do you recall whether you had
19 occasion to be present in -- and in the vicinity of
20 other workers who were sanding joint compound?
21 A. Yes.
22 Q. Okay. What is the trade that applies
23 and sands joint compound? Whats the name of the
24 trade?
25 A. Theyre carpenters but theyre sheetrock
0031
1 installers. Thats just the phase. Like ceiling is a
2 phase of the carpentry business.
3 Q. During the 1960s and early 1970s where
4 were you employed?
5 A. Harry Rich Affiliates.
6 Q. And at Harry Rich Affiliates was it your
7 primary job to install ceilings?
8 A. Yes.
9 Q. Do you recall whether during the 1960s
10 and 1970s as a Harry Rich employee whether you were
11 present on the same jobs as the carpenters who were
12 doing the spackle and sanding of joint compound?
13 A. Yes.
14 Q. How come -- how did you come to be on
15 the job at the same time as the spacklers and drywall
16 applicators?
17 A. Well, thats the progression of the job.
18 The interior work as it goes along, they put up the
19 walls first. We come in and start putting the
20 ceilings in and the walls can be up but not taped and
21 spackled but we can still put the ceilings in so there
22 was an overlap of drywall applicators and ceiling
23 applicators working together.
24 Q. Would you say that that was a common
25 occurrence at the work site or a rare occurrence at
0032
1 the work site?
2 A. No. Thats a common occurrence.
3 Q. When -- you indicated that you were at
4 the work site the same time as the carpenters who were
5 spackling. Would -- how close would you say that you
6 were to the spacklers on various job sites?
7 DEFENSE COUNSEL: Objection.
8 DEFENSE COUNSEL: Objection. Vague.
9 Q. Were you in -- were you -- would you say
10 that you -- is it fair to say that you were in the
11 same room, do you recall --
12 A. Well --
13 Q. -- as --
14 DEFENSE COUNSEL: Objection. Leading.
15 Q. At a given work site you said that you
16 were working at the same time as the spacklers who
17 were sanding joint compound.
18 A. Okay.
19 Q. Do you recall whether or not you were in
20 the same room as them?
21 A. Yes. You could be standing right next
22 to them while they were sanding or in the same room.
23 DEFENSE COUNSEL: Object. Lack of time
24 frame suggested by that question.
25 Counselor, could you limit it to a time
0033
1 period --
2 MS. PLACITELLA: I will.
3 DEFENSE COUNSEL: -- because hes
4 talking...
5 Q. Lets talk about when you were a Harry
6 Rich employee during the 1960s and the early 1970s.
7 Was that a common practice for you -- do
8 you recall if it was a common practice for you to be
9 in the same room as the spacklers who were sanding
10 while you were installing the ceilings?
11 A. Yes.
12 Q. Do you recall -- you had indicated
13 what -- strike that.
14 When you were -- regarding the joint
15 compound that you talked about before, do you recall
16 if Georgia-Pacific joint compound -- how it was
17 packaged? Was it always in cans, do you recall, or
18 was it packaged in any other manner?
19 DEFENSE COUNSEL: Objection. Leading.
20 What -- can we go off the record for a second?
21 A. Well, when it first came out...
22 (Discussion off the record.)
23 Q. You indicated when you were -- when you
24 had purchased the Georgia-Pacific joint compound for
25 the garage that you had purchased it in a can. Do you
0034
1 recall ever seeing Georgia-Pacific joint compound on
2 jobs during the 60s and 70s for Harry Rich -- as a
3 Harry Rich employee?
4 DEFENSE COUNSEL: Objection. Leading.
5 A. Yes.
6 Q. Do you -- when -- did Georgia -- when
7 you saw Georgia-Pacific joint compound on the jobs do
8 you recall whether -- how it came packaged?
9 A. I think the very beginning it was in
10 metal buckets and then eventually turned into
11 five-gallon plastic buckets.
12 Q. Do you recall the color of the labels or
13 what was on the labels?
14 DEFENSE COUNSEL: Objection. Leading.
15 A. Well, it said Georgia-Pacific joint
16 compound and like that would probably hold over for
17 both the metal and the -- and the plastic buckets.
18 Q. Do you recall the color of the can?
19 A. It was either blue or green to the best
20 of my memory.
21 Q. Did you ever have occasion to see the
22 Georgia-Pacific joint compound in any other type of
23 packaging or container while you were a Harry Rich
24 employee or before that on jobs?
25 DEFENSE COUNSEL: Objection. Compound.
0035
1 A. Yes. It came as a dry mix in 25-pound
2 bags and they used to mix it on the job.
3 Q. Did you ever see it -- the joint
4 compound in bags being mixed on the job?
5 A. Yes.
6 Q. Can you explain the process, please?
7 A. Well, they would take and dump either
8 half or three-quarters of the bag into a five-gallon
9 plastic bucket and add water and then mix it with a --
10 same type of thing that I was talking about before,
11 electric drill with a paddle and mix it up, and thats
12 how they -- they make the compound.
13 Q. And did you -- were you present when
14 this was -- this process was completed at any job
15 site?
16 A. Yes.
17 Q. Do you recall whether or not the mixing
18 of the dry joint compound into the bucket created any
19 dust?
20 A. Yes, it did.
21 Q. And --
22 DEFENSE COUNSEL: Objection. Leading.
23 Q. -- do you -- can you describe the
24 condition of the air when the joint compound was
25 being -- the dry joint compound was being mixed with
0036
1 water?
2 A. It was dusty.
3 Q. And did you breathe in that dust if you
4 recall?
5 A. Yes.
6 Q. Okay. Im going to show you whats been
7 marked as P-7 for identification. Can you see that up
8 on the screen, sir?
9 A. Yes.
10 MS. PLACITELLA: Im going to play it.
11 (Pause.)
12 MS. PLACITELLA: I was going to play it.
13 (Pause.)
14 MS. PLACITELLA: Okay. Well, were
15 going to take a five-minute break. Off the record.
16 THE VIDEOGRAPHER: Off the record at
17 11:44.
18 (Recess taken at 11:44 a.m.)
19 MS. PLACITELLA: Back on the record?
20 THE VIDEOGRAPHER: Everybody ready?
21 Stand by.
22 Back on the record at 11:51 a.m.
23 BY MS. PLACITELLA:
24 Q. Okay. Mr. Johnson, I show you whats
25 been marked as P-7 for identification. Can you see
0037
1 that up on the screen, sir?
2 A. Yes.
3 Q. Okay. What is the item in the
4 gentlemans hand if you know?
5 A. Its a pole sander.
6 Q. And what -- based upon this picture what
7 is the person sanding to your knowledge?
8 A. Well, hes sanding the joints on the
9 ceiling.
10 Q. Did you ever have an occasion to use a
11 pole sander yourself?
12 A. Yes.
13 Q. And do you recall when? Did you have
14 occasion to use it at the -- when you were sanding the
15 garage if you recall?
16 A. Yes.
17 Q. Were you ever -- did you ever have an
18 occasion to be in the presence of others at work sites
19 when pole sanding was going on?
20 A. Yes.
21 Q. And obviously if you were there for
22 ceiling work the person was not pole sanding the
23 ceiling, correct?
24 A. Right.
25 Q. And what would the person be pole
0038
1 sanding then?
2 A. Well, hed be pole sanding call it
3 facia, soffits and walls.
4 Q. And that would be -- if it was a 10-,
5 12-foot ceiling --
6 A. Yes.
7 Q. -- correct? I mean -- right. So that
8 would --
9 A. Height.
10 Q. -- the wall would be that high, correct?
11 A. Yes.
12 Q. Okay. Now, when you were pole sanding
13 or in the presence of others that -- who were pole
14 sanding is it fair to say that you were not wearing
15 the same respiratory equipment as in this picture,
16 correct?
17 DEFENSE COUNSEL: Objection --
18 A. Correct.
19 DEFENSE COUNSEL: -- leading.
20 DEFENSE COUNSEL: Objection. Foundation.
21 Q. Do you -- what is the person wearing if
22 you know on their face in this picture?
23 A. In this picture? Actually I cant see
24 his face.
25 Q. Well, Im going to show you whats been
0039
1 marked as P-7 for identification; the actual photo.
2 Can you see what the person is wearing?
3 A. Hes wearing some kind of respirator or
4 mask.
5 Q. Right. And when you were pole sanding
6 or -- and in the presence of others who were pole
7 sanding do you recall whether or not they had such a
8 mask on?
9 DEFENSE COUNSEL: Objection. Compound.
10 A. No, they didnt have masks on.
11 Q. Okay.
12 MS. PLACITELLA: Lets see if this works
13 now.
14 Q. Could you look at the screen? Okay.
15 Now, what -- in the video what was that
16 person actually doing?
17 A. What is he doing? Hes...
18 Q. What was he doing during the little
19 clip -- two-second clip?
20 A. Hes sanding the ceiling.
21 Q. Okay. And can you say whether or not
22 this video fairly and accurately depicts the
23 conditions of the air when either you were sanding --
24 when you were sanding joint compound with a pole
25 sander?
0040
1 DEFENSE COUNSEL: Objection --
2 A. Yes.
3 DEFENSE COUNSEL: -- leading.
4 A. Yes.
5 Q. And how -- and would you also say that
6 this video fairly and accurately depicts the condition
7 of the air of others who were sand -- pole sanding in
8 your vicinity?
9 A. Yes.
10 DEFENSE COUNSEL: Objection. Foundation.
11 Q. Now, I show you whats up on the screen
12 now and here is P-8 for identification. Can you tell
13 me what the gentleman is doing in the picture, sir?
14 DEFENSE COUNSEL: Objection. Photograph
15 speaks for itself.
16 A. Hes hand sanding the joints, the
17 vertical joints.
18 Q. And what is he hand sanding with, sir?
19 A. Well, thats a -- thats a special tool
20 that -- put a piece of sandpaper -- attach a piece of
21 sandpaper to it and its hand-held and you use it to
22 sand the joints.
23 Q. Did you ever -- do you recall whether or
24 not you ever hand sanded joint compound?
25 A. Yes.
0041
1 DEFENSE COUNSEL: Objection. Can you
2 give a time frame, counselor?
3 MS. PLACITELLA: Sure.
4 Q. Do you recall whether or not you hand
5 sanded joint compound when you were doing the garage?
6 A. Yes.
7 Q. Okay. And did you ever -- were you ever
8 in the presence during the course of your career of
9 others who were hand sanding joint compound in your
10 presence?
11 A. Yes.
12 DEFENSE COUNSEL: Objection. Foundation.
13 Q. Okay. Now, do you recall whether or
14 not -- no. Let me play the video.
15 Can you look at the screen, sir?
16 A. Yeah. I got it right in front of me.
17 Oh, here we go.
18 Q. Now, what did the person just do, sir?
19 A. Well, he hand sanded that joint.
20 Q. Okay. And what was the condition of the
21 air when he was hand sanding?
22 DEFENSE COUNSEL: Objection.
23 A. Dusty.
24 Q. Would you say -- do you -- do you
25 believe that this video fairly and accurately depicts
0042
1 the condition of the air when you were hand sanding
2 joint compound yourself?
3 A. Yes.
4 DEFENSE COUNSEL: Objection. Foundation.
5 Compound.
6 Q. Do you believe that this video fairly
7 and accurately depicts the condition of the air when
8 others were hand sanding joint compound in your
9 presence during the time that you worked at various
10 job sites?
11 A. Yes.
12 DEFENSE COUNSEL: Objection. Leading.
13 Vague question. No time frame based upon it.
14 Q. I show you whats been marked as P-9 for
15 identification -- oh, strike that.
16 I want to just go back again to the --
17 what we just showed you before, the hand sanding of
18 the joint compound which is P-8 for identification.
19 You had already described the head gear
20 that the person is wearing. And is this the same --
21 would you say that thats a respirator that you just
22 stated previously regarding P-7?
23 A. Yes.
24 Q. Okay. And is it fair to say that you
25 did not wear a respirator when you were hand sanding
0043
1 joint compound. Is that --
2 A. Yes.
3 Q. -- fair?
4 Okay. And is that -- does that -- as
5 far as the persons respirator was it common practice
6 for the spacklers who were working in your presence to
7 wear this type of respirator during the course of your
8 career?
9 DEFENSE COUNSEL: Objection. How are
10 you defining the common practice as --
11 A. No, it wasnt common practice.
12 Q. Okay. Now, looking up at P-9 for
13 identification, what is the person -- what does -- let
14 me show you the video first. I just stopped it.
15 Sorry.
16 What is the person doing?
17 A. Well, hes cleaning up the dust thats
18 accumulated on the floor --
19 Q. What is --
20 A. -- from the sanding.
21 Q. Okay. And what is the trade that
22 performs this job?
23 A. Usually its the laborers on union jobs.
24 Q. Did you ever have an occasion to broom
25 clean joint compound when you built your garage?
0044
1 A. Yes.
2 Q. And does this video fairly and
3 accurately depict the process in which you broom
4 cleaned joint compound when you did the garage?
5 A. Yes.
6 DEFENSE COUNSEL: Objection. Leading.
7 Q. Did -- do you recall whether or not you
8 were in the presence of others who performed the task
9 of broom cleaning joint compound on various job sites?
10 A. Yes.
11 DEFENSE COUNSEL: Objection. Vague.
12 Time frame.
13 Q. Did you -- do you have -- does this
14 picture fairly and accurately depict the process of
15 broom cleaning joint compound that you witnessed
16 others perform?
17 A. Yes.
18 DEFENSE COUNSEL: Objection. Foundation.
19 Q. Do you -- does -- did this video fairly
20 and accurately depict the condition of the air when
21 broom cleaning of joint compound occurs?
22 DEFENSE COUNSEL: Objection --
23 A. Yes.
24 DEFENSE COUNSEL: -- foundation.
25 Q. Did -- and how would you describe the
0045
1 conditions of the air?
2 A. It was dusty. A lot of dust in the air.
3 Q. Did you ever have an occasion to wear
4 a -- did you ever have an occasion to wear a mask
5 during your work history?
6 A. Yes.
7 Q. What type of mask did you wear?
8 A. Well, we wore what we -- what we call
9 paper -- the paper mask.
10 Q. And do you know the manufacturer of the
11 paper mask?
12 DEFENSE COUNSEL: Objection.
13 A. 3M.
14 Q. When did you start wearing a mask?
15 A. Well, after we were alerted by OSHA of
16 the dangers of asbestos in the air, in different
17 products, thats then when we started wearing a mask
18 because we found out that the ceiling tile had
19 asbestos in it and it was a very dusty condition.
20 Q. Can you -- can you pinpoint a date or --
21 when you first learned from OSHA about the dangers of
22 asbestos?
23 A. I would say -- actually, no, I cant
24 really pinpoint it --
25 Q. Okay.
0046
1 A. -- the date.
2 Q. Once -- if you were warned about the
3 dangers of asbestos from warning labels on any -- on
4 products would you have done anything?
5 DEFENSE COUNSEL: Objection.
6 A. Yes. We definitely would have.
7 Q. What would you have done?
8 A. Well, we would have -- we would have
9 either not used the product, number one, if we knew
10 the dangers of it. Or if we did use the product we
11 would use adequate protection like masks, protect --
12 protective clothing, protective gear, gloves.
13 Q. If you were warned about the dangers of
14 asbestos from warning or caution labels at work sites
15 what if anything would you have done?
16 DEFENSE COUNSEL: Objection.
17 A. Same thing.
18 Q. Which was?
19 A. Which was wear -- wear a mask, wear
20 protective clothing. Anything to -- or avoid the
21 product completely.
22 Q. Did you ever see any warnings on --
23 warnings regarding the dangers of asbestos on
24 products --
25 A. No.
0047
1 Q. -- while...
2 And did you ever see any warnings at any
3 work sites regarding the dangers of asbestos?
4 DEFENSE COUNSEL: Objection.
5 A. No.
6 Q. I show you whats been marked as P-10
7 for identification. And could you tell me what -- and
8 Im going to show you also the video. If you could
9 look up on the screen.
10 Can you see -- what is the person in the
11 video doing?
12 A. Hes scraping the floor.
13 Q. Okay. And what is he scraping the -- if
14 you -- if you can tell from the picture, what does it
15 look like hes scraping the floor to remove? What
16 product is he removing?
17 A. Well, hes scraping any spackle that has
18 been spilled on the floor. In the process of taping
19 the joints you have spackle constantly dropping on the
20 floor and it dries up into a glob. After the whole
21 job is over, they come in and they scrape the floor.
22 Q. Did you ever have an occasion to scrape
23 the floor after using joint compound when you
24 completed the garage project?
25 A. Yes.
0048
1 Q. And did you use a tool similar to the
2 one described in the video?
3 A. Yes.
4 Q. Did -- do you recall whether the
5 scraping of the floor created any visible dust?
6 DEFENSE COUNSEL: Objection. Leading.
7 A. Yes.
8 Q. Do you recall the conditions of the air
9 after you -- and during the time that you were
10 scraping the floor while you were completing the
11 garage project?
12 A. It was dusty.
13 Q. Did you inhale that dust?
14 A. Yes.
15 Q. Now, I show you whats been marked as
16 P-11 for identification. Can you tell me what is
17 depicted in the picture? Whats depicted in the
18 picture, sir?
19 A. Oh, this is -- these are five-gallon
20 buckets of ready-mix joint compound and the one at the
21 left is probably a 25-pound bag of the powder compound.
22 Q. Does -- do these pictures fairly and
23 accurately depict the buckets of Georgia-Pacific joint
24 compound that you had indicated that you had seen
25 during the course of the time that you worked for
0049
1 Harry Rich?
2 DEFENSE COUNSEL: Objection. Foundation.
3 A. Yes.
4 DEFENSE COUNSEL: Objection.
5 Mischaracterizes prior testimony.
6 Q. When were you shown these pictures?
7 A. Well, yesterday was the first time.
8 Q. So is it clear -- is it fair to say that
9 you were not shown these pictures when you first --
10 when you conducted the eight -- when you sat for the
11 eight days of your discovery deposition, correct?
12 A. Correct.
13 Q. Now, you have testified at length about
14 major jobs that you had worked at during the course of
15 your career over the past eight days of discovery
16 deposition. Is that correct?
17 A. Correct.
18 Q. Okay. And if you would like to refer to
19 whats been marked as P-1 for identification. Can you
20 tell me the first job that you spoke about?
21 DEFENSE COUNSEL: Objection to the use
22 of the document.
23 DEFENSE COUNSEL: Its leading.
24 Q. Okay. Now --
25 A. Oh, okay.
0050
1 Q. -- did you ever have an occasion to work
2 at PSE&G?
3 A. Yes.
4 Q. Okay. And about when did you work there?
5 A. Mid-50s.
6 Q. For how long did you work there?
7 A. 18 months.
8 Q. Where is -- where was the PSE&G
9 generator -- was it a generating station that you
10 worked at?
11 A. Yes.
12 Q. And what town was that in?
13 A. It was in Harrison.
14 Q. And was it referred to as the Kearny
15 generating station if you recall?
16 A. Yes.
17 Q. Okay. What -- do you remember that job?
18 A. Yes.
19 Q. What was your job duties at -- when you
20 worked for PSE&G?
21 A. I was a carpenter.
22 Q. And what particular work did you do?
23 A. We did all the form work for the
24 foundation. We put up the temporary office buildings
25 and shanties for all the offices and the shanties and

8 Q Mr. Johnson, are you feeling well enough
9 to continue the De Bene Esse deposition today?
10 A Yes, yes.
11 Q Do you recall your testimony last week
12 concerning your work at the Warner-Lambert building?
13 A Yes.
14 Q When you were -- when you were at the
15 Warner-Lambert building, do you recall whether or not
16 walls were constructed while you were there?
17 DEFENSE COUNSEL: Objection, leading.
18 A Yes, they were.
19 Q Do you -- do you know who had the
20 contract for the drywall or do you have any idea who
21 had the contract for the drywall?
22 A Harry Rich.
23 Q Do you know if Harry Rich had any other
24 contracts other than the drywall and the ceiling?
25 A They had the floors and the ceilings.
0255
1 Q When you -- when did the drywallers work
2 at Warner-Lambert in relation to when you were there
3 doing your ceiling work?
4 A They worked right along with us.
5 Q What did --
6 DEFENSE COUNSEL: Move to strike the
7 nonresponsive portion.
8 Q Do you recall whether or not the
9 drywallers worked at the Warner-Lambert building at
10 the same time that you were there doing your ceiling
11 work?
12 A Yes, they were.
13 Q Do you -- what were the drywallers
14 doing?
15 A Cutting the studs, installing the
16 framing, putting up the sheetrock, taping and
17 spackling and sanding for a finished coat.
18 Q Do you recall whether or not the sanding
19 occurred while you were -- strike that.
20 Do you know whether or not the sanding
21 occurred in your presence while you were at the
22 Warner-Lambert building?
23 A Yes, it did.
24 Q Do you recall the manufacturer of the
25 joint compound that the drywallers used?
0256
1 A It could have been either GP or USG, one
2 or the other.
3 Q Can you describe the conditions of the
4 air in your vicinity when the drywallers were
5 sanding?
6 DEFENSE COUNSEL: Objection, lack of
7 foundation.
8 A It was dusty.
9 Q Can you -- do you recall whether or not
10 the dust was visible to your sight?
11 DEFENSE COUNSEL: Objection, calls for
12 speculation.
13 A Yes, it was.
14 Q Do you recall whether or not you
15 breathed in this dust?
16 DEFENSE COUNSEL: Objection, calls for
17 speculation.
18 A Yes, I did.
19 MS. PLACITELLA: Thank you, thats all I
20 have.
21 (Off videotape 11:04 a.m.)
22 MS. PLACITELLA: Does anybody have cross
23 for Mr. Johnson?
24 (On videotape 11:05 a.m.)
25
0257
1 CROSS-EXAMINATION BY MR. BABULA:
2
3 Q Good morning, Mr. Johnson.
4 A Good morning.
5 Q My name is Keith Babula. I just have a
6 few questions for you.
7 During your Discovery deposition, my
8 colleague, Jim Tate, asked you some questions about
9 the Corn Products job that you worked on, okay?
10 A Yes.
11 Q Do you recall that?
12 A Yes.
13 Q Im not going to repeat all the
14 questions that he asked you, but I do want to ask you
15 a couple of the questions that he asked, okay?
16 When you worked at the Corn Products
17 job, I think you testified it was sometime in the
18 1960s for about eight months, correct?
19 A Yes.
20 MS. PLACITELLA: One second, Counsel.
21 Could you just point me to the portion
22 that youre referring to in his Discovery deposition?
23 MR. BABULA: Its the August 19th
24 transcript, Volume VI. Im on Page 635 and 636.
25 MS. PLACITELLA: Great. Thank you,
0258
1 Counsel.
2
3 BY MR. BABULA:
4 Q Now, Mr. Johnson, you recall working at
5 Corn Products sometime in the 60s for about eight
6 months, correct?
7 A Correct.
8 Q Okay. And that was new construction of
9 the office buildings, correct?
10 A Yes.
11 Q And your employer at the time was Harry
12 Rich Affiliates, correct?
13 A Yes.
14 Q I think you testified that Harry Rich
15 had particular expertise in installing ceilings,
16 floors, and walls, correct?
17 A Right.
18 Q And thats how he won the bid to do the
19 work at Corn Products, because of his expertise?
20 MS. PLACITELLA: Objection,
21 mischaracterization of his testimony.
22 Q You can answer, sir.
23 A Yes, Id have to say so.
24 Q And the general contractor on that job
25 was Fred Brotherton, correct?
0259
1 A Yes, to the best of my knowledge, yes,
2 it was.
3 Q And during your time at the new
4 construction at the Corn Products office buildings,
5 you were the foreman of the ceiling crew, is that
6 right?
7 A Yes.
8 Q And you were in charge of about 25 to 30
9 men on your crew?
10 A Yes.
11 Q And as the foreman, you were in charge
12 of your crews quality of work, correct?
13 A Yes.
14 Q And you were also in charge of making
15 sure that your crew was performing their work safely,
16 correct?
17 A Yes.
18 Q You were also in charge of hiring and
19 firing for your crew, is that correct?
20 A Not hiring.
21 Q Only firing?
22 A Just firing.
23 Q And you were in charge of maintaining
24 the proper discipline for the men in your crew, is
25 that correct?
0260
1 MS. PLACITELLA: Objection,
2 mischaracterization.
3 A Repeat that question.
4 Q You were in charge of maintaining proper
5 discipline for the men in your crew, is that right?
6 A If you call their, you know, their work
7 ethics discipline, yes.
8 Q And you, yourself, would have took
9 directions and instructions for the work from either
10 Harry Rich or Fred Brotherton, correct?
11 A Correct.
12 Q And you would have referred to the
13 blueprints for the job which were supplied to you by
14 Harry Rich, correct?
15 A Correct.
16 Q And Harry Rich, your employer, he
17 provided you with the ceiling tiles that you
18 installed and the tools to perform the work, correct?
19 MS. PLACITELLA: Objection,
20 mischaracterization.
21 A The ceiling tile, some of the tools, not
22 all of the tools.
23 Q Okay. And you testified previously that
24 you never saw anyone from Corn Products at the work
25 site while you were working there, correct?
0261
1 A Correct.
2 Q And on the Corn Products job, Harry
3 Rich, who is your employer, he also won the bid for
4 the drywall installers, is that correct?
5 A Yes, Im pretty sure of that.
6 Q And he would have provided some of the
7 drywallers tools and materials as well, correct?
8 A The same situation.
9 Q And would you agree with me, sir, that
10 during the time that you performed work at the Corn
11 Products facility, since it was new construction, you
12 would have followed all the state and local building
13 codes, would that be correct?
14 A Yes.
15 MR. BABULA: Okay. Thank you, sir.
16 Thats all I have.
17 (Off videotape 11:11 a.m.)
18 (On videotape 11:13 a.m.)
19
20 CROSS-EXAMINATION BY MR. LIONETTI:
21
22 Q Sir, my name is Mark Lionetti. Ive got
23 some questions for you.
24 Ive handed you two exhibits previously
25 marked at the deposition last time we were here, P-14
0262
1 and P-15.
2 You have them in front of you?
3 A Yes.
4 Q And I believe in response to your
5 counsels questions, you indicated that the wheels
6 depicted in P-14 and P-15 are fair depictions and
7 accurate of the wheels that you had discussed with me
8 when I had asked you questions previously about what
9 you had previously given testimony regarding wheels
10 manufactured by Carborundum, is that correct?
11 A Yes, Id have to say so.
12 Q Now, as I understand your testimony in
13 response to your counsels questions on P-14, which
14 is the color photographs youve got in front of you,
15 copies, it looks like, of color photographs?
16 A Um-hum, yes.
17 Q You indicated that those were the
18 four-inch in diameter wheels that were used on
19 handheld grinders?
20 A Yes.
21 Q And those were the --
22 A Thats what they look like.
23 Q Thats what youre saying they look
24 like?
25 A Yeah.
0263
1 Q These arent ones that you actually saw
2 someone use?
3 A No.
4 Q I understand that.
5 Do you know where these photographs came
6 from?
7 A No.
8 Q You didnt take them?
9 A No.
10 Q You dont know when they were taken?
11 A No.
12 Q And thats true for both P-14 and P-15?
13 A Yes.
14 Q Now, back to P-14. These four-inch
15 wheels that were used on the grinding, as I
16 understand it, these were used on the -- what you
17 were calling soapstone countertops?
18 A Yes.
19 Q And they were in a hand-held device --
20 A Yes.
21 Q -- that others were using?
22 A Yes, others were used.
23 Q Do you know the manufacturer of the
24 handheld devices that these wheels were used in?
25 MS. PLACITELLA: Objection.
0264
1 MR. LIONETTI: Whats the objection?
2 MS. PLACITELLA: The question is
3 unclear. Are you talking about the tool --
4 MR. LIONETTI: Yes. Ill clarify.
5 MS. PLACITELLA: -- device? I didnt
6 understand.
7 MR. LIONETTI: I understand.
8
9 BY MR. LIONETTI:
10 Q So these handheld grinders were electric
11 tools, hand tools?
12 A Yes.
13 Q Do you know the manufacturers of the
14 handheld electric tools that the four-inch grinding
15 wheels were used in?
16 A Well, it was quite a few of them.
17 Q I know that when you told me when we
18 spoke a few weeks back that you knew in general there
19 were several different manufacturers of handheld
20 electric tools that you recalled throughout the
21 course of your career, am I correct?
22 A Yes.
23 Q And specific to any particular wheel,
24 you didnt know which manufacturer of handheld
25 electric tool was being used at any particular time?
0265
1 For instance --
2 MS. PLACITELLA: Wait, let him finish.
3 A You sort of went around a circle there.
4 I dont know what youre -- I dont know what youre
5 getting at.
6 Q At Warner-Lambert, you dont know the
7 manufacturer of the tool that you saw these four-inch
8 wheels in?
9 A No.
10 Q Im correct in that?
11 A Yes.
12 Q Okay, thats what I thought.
13 And when you and I discussed the wheels,
14 and I want to make sure thats your testimony about
15 these four-inch wheels, the wheels were the same
16 color from the edge in?
17 A Yeah.
18 Q Okay. And I think you said they were
19 like dark gray or black?
20 A Yeah, almost black.
21 Q Okay. And the wheels -- on the
22 four-inch wheels, if youre looking at P-14 in front
23 of you, would the grinding be done on what would be
24 like the top of the plate if they were laying down in
25 front of you?
0266
1 MS. PLACITELLA: Objection, the question
2 is vague.
3 Q Sir, do you understand my question?
4 A Well, the grinding can be done on the
5 edge of the plate, it could be done on the bottom of
6 the plate, it can be done on the back of the plate.
7 Q All right, so --
8 A I mean, it depends on the position
9 youre in and how you use the blade.
10 Q I think Im understanding what youre
11 telling me.
12 On the handheld -- handheld grinders, it
13 would be attached on a spindle through that hole in
14 the center of these plates --
15 A Right.
16 Q -- center of these wheels?
17 And you could use the narrow edge to
18 cut?
19 A Yup.
20 Q You could use the -- what would be the
21 top or the bottom of it to grind?
22 A To grind.
23 Q One way or the other, right?
24 A Right.
25 Q And these wheels would grind down as
0267
1 they were used?
2 A Yes.
3 Q And thered be parts of the wheel
4 basically eroding as it was being used?
5 A Yes.
6 Q Now, how far down would these four-inch
7 wheels go before they had to be discarded?
8 A You could get pretty close to the
9 spindle, but...
10 Q Could you mark on my copy?
11 MS. PLACITELLA: Hes not creating
12 evidence, Counselor. Hes not going to mark or draw
13 anything.
14 MR. LIONETTI: If we could go off the
15 video, please.
16 (Off videotape 11:16 a.m.)
17 MR. LIONETTI: Thats all thats going
18 on here, is were creating evidence in response to
19 your questions, in response to my questions.
20 I dont understand your objection.
21 I want to have him mark on just one of
22 these pictures where it would grind down to, and I
23 think thats fair and Im allowed to do that.
24 You introduced these exhibits.
25 MS. PLACITELLA: Right. I object
0268
1 because these documents -- these pictures are not
2 drawn to scale, so its unfair to ask him to point on
3 a picture thats not drawn to scale where he would
4 draw -- use the blade until, so thats my objection.
5 MR. LIONETTI: Theyre not even blades
6 he said he used, so I understand what youre saying.
7 Are you going to stop him from doing it?
8 MS. PLACITELLA: Yes.
9 MR. LIONETTI: Can we do it over your
10 objection?
11 MS. PLACITELLA: I object.
12 MR. LIONETTI: I know. Thats not what
13 I asked you.
14 Can we do it over your objection so we
15 have a record that we can have someone decide later?
16 MS. PLACITELLA: If you can -- well, ask
17 him the question, if you can.
18
19 BY MR. LIONETTI:
20 Q Sir, all I would like you to do -- and
21 we can go on the video for this.
22 MS. PLACITELLA: Absolutely.
23 MR. LIONETTI: We can go back off, if
24 you like.
25 (Videotape on 11:18 a.m.)
0269
1 Q So showing you P-14 sitting in front of
2 you, as I see it there are two copies of two
3 photographs apparently, and what Id like you to do
4 is on the top one where theres an entire wheel
5 depicted on the center left side of that top
6 photograph --
7 A Yeah.
8 Q -- if you could mark for me on the wheel
9 on the copy that I have where it would grind down.
10 I understand you said youd get it
11 pretty far down.
12 Im trying to get an estimate from you,
13 and you know, if you can do that, Id like you to do
14 that.
15 MS. PLACITELLA: I object. The document
16 indicates a picture thats less than an inch. Its
17 not accurate. Its not drawn to scale.
18 MR. LIONETTI: So its clear, its not a
19 -- its not a drawing. Its a photograph that you
20 introduced.
21 MS. PLACITELLA: Right.
22 MR. LIONETTI: Off the video, please.
23 (Videotape off 11:19 a.m.)
24 MR. LIONETTI: He didnt say he couldnt
25 do it, Rachel. Id like him to do it over your
0270
1 objection just so we have the record and we can --
2 MS. PLACITELLA: I dont want him to do
3 it.
4 MR. LIONETTI: You suggested before that
5 I ask him if he can do it.
6 MS. PLACITELLA: I know. I dont want
7 him to do it. Its not accurate. Its just a
8 picture. Its not drawn to scale. Its less than an
9 inch long. How accurate can it be?
10 Im not going to allow it. Hes not
11 creating evidence on this document thats not drawn
12 to scale.
13 For the purpose of identification, you
14 can ask him questions about it.
15 MR. LIONETTI: You keep saying not
16 drawn to scale, but you introduced the purported
17 photograph of a product of my client.
18 MS. PLACITELLA: Right.
19 MR. LIONETTI: And all I want him to do
20 is mark on there how far down it would grind in.
21 And what hes told me is that its
22 pretty close to the hub.
23 Its understood its an estimate and we
24 can put that on the record.
25 MS. PLACITELLA: I object. Next
0271
1 question.
2 MR. LIONETTI: Rachel, I hate to have to
3 get Agatha involved on something as silly as --
4 MS. PLACITELLA: Why dont we just keep
5 moving?
6 MR. LIONETTI: Id rather not. Im
7 here, Im asking a question. I think its a fair
8 question. Its in response to your direct. Its not
9 something that was introduced in Discovery.
10 I think he can do it, based on his
11 answer to me, which was the question you asked.
12 MS. PLACITELLA: All right. Ill note
13 my objection for the record.
14 If you can, Mr. Johnson.
15 THE WITNESS: Okay.
16
17 BY MR. LIONETTI:
18 Q Lets do it on my copy so I dont mess
19 up the first copy, okay?
20 MR. LIONETTI: And we can mark this --
21 THE VIDEOGRAPHER: Going back on the
22 record at 11:21.
23 MR. LIONETTI: We dont have to go back
24 on the record yet. We can mark this as D-1.
25 MS. PLACITELLA: No, go back on the
0272
1 record.
2 MR. LIONETTI: Let me mark it first.
3 (Copy of Photograph previously marked as
4 Plaintiffs Exhibit 14 is received and marked as
5 Defendants Exhibit 1 for Identification.)
6 (On videotape 11:22 a.m.)
7
8 BY MR. LIONETTI:
9 Q Now, sir, you have whats in front of
10 you whats been marked as Defense Exhibit 1, and
11 thats a copy of what was marked previously as
12 Plaintiffs Exhibit 14.
13 And on the top of the two photographs
14 depicted there is a whole wheel sort of to the left
15 right hand -- excuse me -- left center of the
16 picture.
17 Do you see that?
18 A Yes.
19 Q And youve told me that the wheel would
20 grind down when people were using it.
21 What Id like you to do is just put a
22 mark, like an arrow, pointing to how far down -- an
23 estimate, I understand -- how far it would grind down
24 before you had to throw it away?
25 A Well, let me just add something here for
0273
1 the record.
2 Q Go ahead.
3 A Every mechanic that uses this blade
4 would grind it down to a different depth.
5 Do you know what I mean?
6 MS. PLACITELLA: Then he cant do it.
7 Im not going to allow him to do it.
8 MR. LIONETTI: Hes testifying.
9 MS. PLACITELLA: He said but he --
10 Q How far do you recall it happening on
11 the times when you remembered grinding down almost to
12 the hub?
13 A Not too often.
14 Q I didnt ask you how often.
15 I asked you on the times that you
16 observed that, how far down would it grind down?
17 A When I used this particular tool?
18 Q You said you saw others using it.
19 That was what you testified to.
20 A Okay.
21 Q Thats what Im talking about.
22 A Let me say halfway.
23 Q Okay.
24 A Halfway, because you got to remember, on
25 this tool theres also a guard and theres only about
0274
1 half of the blade is exposed, and you cant -- I
2 mean, you got to -- you got to change them quite
3 often.
4 Q Youd have to take the guard off to get
5 further than --
6 A You dont take the guard off.
7 Q I understand that, but you would have to
8 take the guard off to get further than halfway?
9 A Further, yes.
10 Q So would you mark where you think it
11 would go if you didnt take the guard off and what
12 you recall happening?
13 THE WITNESS: Should I mark it?
14 MS. PLACITELLA: If you can.
15 (Witness marking exhibit.)
16 MR. LIONETTI: Off the videotape.
17 (Off videotape 11:24 a.m.)
18 MR. LIONETTI: We can go back on.
19 (On videotape 11:24 a.m.)
20
21 BY MR. LIONETTI:
22 Q Sir, I just took a look at what you
23 marked, and you put like a small arc-shaped mark in
24 the center portion of the wheel that we were
25 discussing and you drew a line coming from it to mark
0275
1 that, is that correct?
2 A Yeah, yes.
3 Q And it would be an estimate as to the
4 wheel would be taken down about that far when you saw
5 others using it, as youve testified?
6 A Right.
7 Q I understand. Thank you.
8 Now, also in that picture or those
9 pictures there are other wheels.
10 Do you see that?
11 A Yeah, I see what looks like other
12 wheels.
13 Q Right. And to your understanding as you
14 sit here today, theyre like the wheels that weve
15 been discussing, these four-inch wheels used in the
16 handheld grinders?
17 A These other wheels?
18 Q Yes. Is that your testimony?
19 MS. PLACITELLA: Objection.
20 A No, thats not my testimony.
21 In this picture the other wheel looks
22 like it could be a diamond blade, diamond wheel.
23 Q Thats not one of the wheels that youve
24 talked about that you recall being used on these
25 jobs.
0276
1 A No, the wheel Im talking about is the
2 black one or the gray one.
3 Q Okay. Thats what I want to understand.
4 Your testimony is not that you recall
5 people using a diamond-edged wheel to cut these
6 countertops?
7 A Right.
8 Q And your testimony is not that you
9 recall people using a diamond-edged wheel to cut the
10 transite pipes?
11 MS. PLACITELLA: Objection, theres no
12 question posed.
13 MR. LIONETTI: Thats the question.
14 MS. PLACITELLA: Can you repeat the
15 question?
16 Q Sir, am I correct that youre -- am I
17 correct, sir, that --
18 A How did we get to -- how did we get to
19 pipes? I thought we were --
20 Q Well, just stay with me, sir.
21 With respect to your testimony
22 concerning the use of wheels or blades that you
23 attribute to Carborundum --
24 A Oh, okay.
25 Q -- youve talked about the cutting of
0277
1 transite panels?
2 A Yeah, go ahead.
3 Q Transite pipe, metal studs, and the
4 grinding of soapstone countertops or parts of hoods,
5 am I correct?
6 A Correct.
7 Q And on none of that do you recall
8 anybody using a diamond-edged wheel that you
9 attribute with Carborundum?
10 MS. PLACITELLA: Objection.
11 A Am I correct?
12 MS. PLACITELLA: There was -- your
13 mischaracterization -- theres a mischaracterization
14 of his testimony.
15 MR. LIONETTI: Im not characterizing.
16 Im asking him a question.
17 MS. PLACITELLA: The question is vague.
18 A Just rephrase that again, how you
19 brought the diamond blade into this all of a sudden.
20 Q With respect to all of the places that
21 you recall Carborundum blades being used during the
22 course of your career as a carpenter that you told us
23 about numerous times throughout this deposition in
24 the last couple of months --
25 A Right.
0278
1 Q -- on none of them have you told us that
2 you recall seeing somebody used a diamond-edged wheel
3 that you attribute to Carborundum, am I correct?
4 A Yes.
5 Q And youre not telling us that now,
6 right?
7 A No, Im not even bringing in the
8 diamond.
9 Q I want to make sure I understood
10 because --
11 Thats what I want to make sure was
12 clear, that your testimony is not changing?
13 A Yeah. No, its not changing, no.
14 Q Sir, Im going to show you, please,
15 P-15, which is the black and white version of a -- of
16 a couple of photographs.
17 I take it, sir, you dont know where the
18 originals of these photographs would be?
19 A No.
20 Q And you didnt take them?
21 A Pardon?
22 Q You did not take these photographs?
23 A No.
24 Q And you dont know who did?
25 A No.
0279
1 Q And as I understand your testimony in
2 response to your counsels questions, these are what
3 -- these depict what you believe to be the type of
4 wheels that were used on the chop saws by others who
5 were cutting metal studs with chop saws during the
6 course of your career?
7 A Yes, and myself cutting it.