Mesothelioma Deposition
Certainteed Executive Forced to Admit No Testing Done Before Selling Asbestos Products in New Jersey Mesothelioma Case
SUPERIOR COURT OF NEW JERSEY
2 LAW DIVISION - MIDDLESEX COUNTY
3 DOCKET NO. MID-L-1628-09
4 GARY R. CHAVAN and JULIE H.
CHAVAN, Husband and wife,
5 DEPOSITION UNDER
Plaintiffs, ORAL EXAMINATION
6 OF
vs. CHARLES B. BLAKINGER, ESQ.
7
3M COMPANY, et al.,
8
Defendants.
9
10 (Caption Continued on page 2.)
11 Computer-aided transcript of the
12 videotape deposition testimony of CHARLES B.
13 BLAKINGER, ESQ., taken stenographically in the
14 above-entitled matter before EDWIN SILVER,
15 Certified Court Reporter and Notary Public of the
16 State of New Jersey, at the offices of Cohen,
17 Placitella & Roth, P.C., Two Commerce Square, 2001
18 Market Street, Suite 2900, Philadelphia, PA 19103,
19 on Wednesday, January 6, 2010, commencing at 10:04
20 a.m.
21
22
23 Brody Deposition Services
Certified Shorthand Reporters and Videographers
24 7 Elm Street
Westfield, New Jersey 07090
25 (908) 789-2000
2
(Caption continued.)
1 SUPERIOR COURT OF NEW JERSEY
2 LAW DIVISION - MIDDLESEX COUNTY
3 DOCKET NO. MID-L-3454-09
4
5 ROCCO ANGELO FORTE and JANICE
FORTE, Husband and wife,
6
Plaintiffs,
7
vs.
8
3M COMPANY, et al.,
9
Defendants.
10
11 -------------------------------------------
12 SUPERIOR COURT OF NEW JERSEY
13 LAW DIVISION - MIDDLESEX COUNTY
14 DOCKET NO. MID-L-6835-07
15 JOSEPH W. HARTMAN, JR.,
Individually and as the
16 Administrator of the Estate
of JOSEPH W. HARTMAN, SR. and
17 individual heirs of the
Estate of JOSEPH W. HARTMAN, SR.,
18
Plaintiffs,
19
vs.
20
3M COMPANY, et al.,
21
Defendants.
22
23
24
25
3
1 SUPERIOR COURT OF NEW JERSEY
2 LAW DIVISION - MIDDLESEX COUNTY
3 DOCKET NO. MID-L-3463-09
4 PAUL HINSENKAMP,
5 Plaintiff,
6 vs.
7 3M COMPANY, et al.,
8 Defendants.
9
--------------------------------------------
10
11 SUPERIOR COURT OF NEW JERSEY
12 LAW DIVISION - MIDDLESEX COUNTY
13 DOCKET NO. MID-L-2994-09
14 JAMES JOHNSON and MARY
JOHNSON, Husband and wife,
15
Plaintiffs,
16
vs.
17
3M COMPANY, et al.,
18
Defendants.
19
20
21
22
23
24
25
4
1 SUPERIOR COURT OF NEW JERSEY
2 LAW DIVISION - MIDDLESEX COUNTY
3 DOCKET NO. MID-L-81-08
4 PATRICIA SNYDER,
5 Plaintiff,
6 vs.
7 3M COMPANY, et al.,
8 Defendants.
9 --------------------------------------------
10 SUPERIOR COURT OF NEW JERSEY
11 LAW DIVISION - MIDDLESEX COUNTY
12 DOCKET NO. MID-L-312-08
13 GLADYS THOMAS, individually
and as Executrix of the
14 Estate of JOHN A. THOMAS, SR.,
15 Plaintiffs,
16 vS.
17 3M COMPANY, et al.,
18 Defendants.
19
20
21
22
23
24
25
5
1 A P P E A R A N C E S:
2
3
4 COHEN, PLACITELLA & ROTH, P.C.
5 BY: CHRISTOPHER M. PLACITELLA, ESQ.
6 127 Maple Avenue
7 Red Bank, NJ 07701
8 (732) 747-9003
9 For the Plaintiffs
10
11
12 CARUSO, POPE, EDELL & PICINI, PC
13 BY: MARK Z. EDELL, ESQ.
14 60 Route 46 East
15 Fairfield, NJ 07004
16 (973) 667-6000
17 and
18 GOODWIN PROCTER, LLP
19 BY: ELIZABETH RUNYAN GEISE, ESQ.
20 901 New York Avenue, N.W.
21 Washington, D.C. 20001
22 (202) 346-4000
23 For Defendant, CertainTeed and the witness,
24 Mr. Blakinger.
25
6
1 A P P E A R A N C E S (CONTINUED):
2
3
4 GARRITY, GRAHAM, MURPHY, GAROFALO & FLINN
5 BY: STEPHEN F. BALSAMO, ESQ.,
6 72 Eagle Rock Avenue
7 East Hanover, NJ 07936
8 (973) 509-7500
9 For Defendant State Insulation Corp. in the
10 Chavan case
11
12
13 MARKS, ONEILL, OBRIEN & COURTNEY, P.C.
14 BY: DENNIS C. SCHMIEDER, ESQ.
15 6981 North Park Drive, Suite 300
16 Pennsauken, NJ 08109
17 (856) 663-4300
18 For Defendant Georgia Pacific Corp. in the
19 Chavan, Johnson, Snyder and Thomas cases
20
21
22
23
24
25
7
1 A P P E A R A N C E S (CONTINUED):
2
3
4 CONNELL FOLEY, LLP
5 BY: CHRISTOPHER ABATEMARCO, ESQ.
6 85 Livingston Avenue
7 Roseland, NJ 07068
8 (973) 535-0500
9 For Defendant Superior Welding Supply in the
10 Hartman and Thomas cases and for Defendant
11 Frank A. McBride in the Chavan case
12
13
14 SEGAL, McCAMBRIDGE, SINGER & MAHONEY, ESQS.
15 BY: ANGELA COLL CALIENDO, ESQ.
16 103 Carnegie Center, Suite 103
17 Princeton, NJ 08540
18 (609) 452-1558
19 For Defendant Garlock in the Chavan case
20
21
22
23
24
25
8
1 A P P E A R A N C E S (CONTINUED):
2
3
4 OTOOLE, FERNANDEZ, WEINER & VAN LIEU, LLC
5 BY: STEVEN A. WEINER, ESQ.
6 60 Pompton Avenue
7 Verona, NJ 07044
8 (973) 239-5700
9 For Defendants Gould Electronics in Chavan
10 case and Clark Reliance Corp. in Forte and
11 Hinsenkamp cases
12
13
14 LAVIN, ONEIL, RICCI, CEDRONE & DiSIPIO
15 BY: CAROLYN L. McCORMACK, ESQ.
16 190 North Independence Mall West
17 Suite 500
18 Philadelphia, PA 19106
19 (215) 627-0303
20 For Defendant 3M Company in all cases
21
22
23
24
25
9
1 A P P E A R A N C E S (CONTINUED):
2
3
4 LAVIN, ONEIL, RICCI, CEDRONE & DiSIPIO
5 BY: KIRSTEN M. LEE, ESQ. ,
6 190 North Independence Mall West
7 Suite 500
8 Philadelphia, PA 19106
9 (215) 627-0303
10 For Defendant IBM in Johnson case
11
12
13 HACK, PIRO, ODAY, MERKLINGER, WALLACE &
14 McKENNA, PA
15 BY: ROBERT G. ALENCEWICZ, ESQ.
16 30 Columbia Turnpike
17 Florham Park, NJ 07932
18 (973) 301-6500
19 For Defendant Johansen Co. in Chavan case
20
21
22
23
24
25
10
1 A P P E A R A N C E S (CONTINUED):
2
3
4 McELROY, DEUTSCH, MULVANEY & CARPENTER, LLP
5 BY: DONNA duBETH GARDINER, ESQ.
6 1300 Mount Kemble Avenue
7 Morristown, NJ 07962
8 (973) 993-8100
9 For Defendants Eaton Corp., as successor by
10 merger to Cutler-Hammer, Inc., and Rockwell
11 Automation, Inc., as successor in interest
12 to Allen-Bradley Company in Chavan case
13
14
15 KELLEY, JASONS, McGOWAN, SPINELLI & HANNA, LLP
16 BY: R. STEVEN PORRECA, ESQ.
17 Two Liberty Place, Suite 1900
18 50 South 16th Street
19 Philadelphia, PA 19102
20 (215) 854-0658
21 For Defendant Square D Co. in Chavan case
22
23
24
25
11
1 A P P E A R A N C E S (CONTINUED):
2
3
4 MARSHALL, DENNEHEY, WARNER, COLEMAN &
5 GOGGIN
6 BY: NADIRA K. KIRKLAND, ESQ.
7 Woodland Falls Corporate Park
8 200 Lake Drive East, Suite 300
9 Cherry Hill, NJ 08002
10 (856) 414-6000
11 For Defendants Kaiser Gypsum in the
12 Thomas case and Pep Boys in the Snyder
13 case.
14
15
16 MARGOLIS EDELSTEIN
17 BY: JASON T. SCHEETS, ESQ.
18 100 Century Parkway, Suite 200
19 Mount Laurel, NJ 08054
20 (856) 727-6014
21 For Defendants John Crane, Inc. and Karnak
22 Corp.
23
24
25
12
1 A P P E A R A N C E S (CONTINUED):
2
3
4 PORZIO, BROMBERG & NEWMAN, P.C.
5 BY: JUSTIN C. HALLBERG, ESQ.
6 100 Southgate Parkway
7 Morristown, NJ 07962
8 (973) 889-4048
9 For Defendant Warner-Lambert Co., LLC in the
10 Johnson case
11
12
13 HARDIN, KUNDLA, McKEON & POLETTO, P.A.
14 BY: MICHAEL D. JARDIM, ESQ.
15 673 Morris Avenue
16 Springfield, NJ 07081
17 (973) 912-5222
18 For Defendant Calon in Chavan case
19
20
21
22
23
24
25
13
1 A P P E A R A N C E S (CONTINUED):
2
3
4 MALOOF, LEBOWITZ, CONNAHAN & OLESKE, P.A.
5 BY: MICHAEL S. COHEN, ESQ.
6 98 East Water Street
7 Toms River, NJ 08753
8 (732) 244-8316
9 For Defendants Oldcastle Precast, Inc., and
10 Kerr Concrete Pipe Co. in Snyder case
11
12
13 HOFHEIMER, GARTLIR & GROSS, LLP
14 BY: GARY N. SMITH, ESQ.
15 530 Fifth Avenue
16 New York, NY 10036
17 (212) 944-0500
18 For Defendant Rapid American Corp. in all
19 cases except Hartman
20
21
22
23
24
25
14
1 A P P E A R A N C E S (CONTINUED):
2
3
4 WILBRAHAM, LAWLER & BUBA, ESQS.
5 BY: EVOLEA C. WATSON, ESQ.
6 24 Kings Highway
7 Haddonfield, NJ 08033
8 (856) 795-4422
9 For Conopco, Inc. in Johnson case
10
11
12 McGIVNEY & KLUGER, P.C.
13 BY: JOSHUA H. BEISLER, ESQ.,
14 Two Penn Center
15 15th Street & JFK Boulevard, Suite 518
16 Philadelphia, PA 19102
17 (215) 557-1990
18 For Defendants DuroDyne in Hartman case,
19 Federated Department Stores in Chavan case,
20 and DAP in Johnson and Thomas cases
21
22
23
24
25
15
1 A P P E A R A N C E S (CONTINUED):
2
3
4 McGIVNEY & KLUGER, P.C.
5 BY: JENNIFER L. HALLY, ESQ.
6 23 Vreeland Road
7 Florham Park, NJ 07932
8 (973) 822-1110
9 For Defendants Hollingsworth & Vose in Forte
10 and Hinsenkamp cases, Graybar Electrical in
11 Chavan case, and Horizon in Johnson case
12
13
14 SALMON, RICCHEZZA, SINGER & TURCHI, LLP
15 BY: JOHN J. DUGAN, ESQ.
16 Tower Commons
17 123 Egg Harbor Road, Suite 406
18 Sewell, NJ 08080
19 (856) 842-0781
20 For Defendant Beazer East, Inc. in Johnson
21 case
22
23
24
25
16
1 A P P E A R A N C E S (CONTINUED):
2
3
4 BREUNINGER & FELLMAN, P.C.
5 BY: CHRISTINE M. NUGENT, ESQ.
6 1829 Front Street
7 Scotch Plains, NJ 07076
8 (908) 490-9900
9 For Defendant GPC in Chavan case
10
11
12 SILVERSTEIN & STERN, LLP
13 BY: CYNTHIA GOLDMAN, ESQ.
14 40 Fulton Street
15 New York, NY 10038
16 (212) 385-1444
17 For Defendant Siemens in Chavan case
18
19
20
21
22
23
24
25
17
1 A P P E A R A N C E S (CONTINUED):
2 HARRIS BEACH, PLLC
3 BY: ROBERT A. SCHAEFER, JR., ESQ.
4 100 Wall Street, 23rd Floor
5 New York, NY 10005
6 (212) 687-0100
7 For Defendants Kentile Floors, Inc. in
8 Thomas case and Progress Lighting in Chavan
9 case
10
11 WILSON, ELSER, MOSKOWITZ, EDELMAN &
12 DICKER, LLP,
13 BY: LAUREN M. IPPOLITO, ESQ.
14 33 Washington Street
15 Newark, NJ 07102
16 (973) 624-0800
17 For Defendant Prudential Insurance Company
18 in Hartman and Johnson cases
19
20 MORGAN MELHUISH ABRUTYN
21 BY: WON JAI LEE, ESQ.
22 651 West Mount Pleasant Avenue
23 Livingston, NJ 07039
24 (973) 994-6600
25 For Defendant Novartis
18
1 A P P E A R A N C E S (CONTINUED):
2
3
4 GOLDFEIN & JOSEPH, LLC
5 BY: MADHURIKA JEREMIAH, ESQ.
6 1880 JFK Boulevard, 20th Floor
7 Philadelphia, PA 19103
8 (215) 979-8200
9 For Defendants ACL and Bell Asbestos Mines,
10 Ltd. in the Chavan, Forte and Hinsenkamp
11 cases
12
13
14 REILLY, JANICZEK & McDEVITT, P.C.
15 BY: BRANDY L. HARRIS, ESQ.
16 2500 McClellan Boulevard
17 Merchantville, NJ 08109
18 (856) 317-7180
19 For Defendant Cleaver-Brooks, Inc. in Chavan
20 case
21
22 ALSO PRESENT:
23 NEW JERSEY CERTIFIED LEGAL VIDEOGRAPHY
24 BY: GERARD J. GENNA, VIDEOGRAPHER
25
19
1 I N D E X
2
3 WITNESS PAGE
4 CHARLES B. BLAKINGER, ESQ.
5 Examination by Mr. Placitella 24
6 Examination by Mr. Edell 212
7 Further examination by Mr. Placitella 234
8 Examination by Ms. Ippolito 264
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
20
1 PLAINTIFFS EXHIBITS
2 NUMBER DESCRIPTION IDENT.
3 P-1 Letter dated 2/2/09 from 23
4 Placitella to Edell, with
5 attached Amended Notice to Take
6 Videotaped Deposition of Charles
7 Blakinger, 6 pages
8 P-2 CertainTeed Corporations Form B 23
9 Middlesex County Interrogatory
10 Responses, 41 double-sided pages
11 P-3 Excerpt of videotaped de bene esse 115
12 deposition testimony of James J.
13 Johnson, Volume 1, on 9/17/09,
14 8 pages
15 P-4 Excerpt of videotaped de bene esse 118
16 deposition testimony of James J.
17 Johnson, Volume 2, on 9/30/09,
18 4 pages
19 P-5 Minutes of the Health & Safety 156
20 Council/ACPA Annual Meeting dated
21 11/21/69, 14 pages
22
23
24
25
21
1 PLAINTIFFS EXHIBITS (CONTINUED)
2 NUMBER DESCRIPTION IDENT.
3 P-6 Health & Safety Council/ACPA 156
4 Recommended Practices for
5 Fabricating, Handling and
6 Applying Asbestos Cement
7 Products in the Building and
8 Construction Industries, 4 pages
9 P-7 Minutes of the Seventh Meeting 157
10 of Health & Safety Council/ACPA
11 dated 5/19/70, 3 pages
12 P-8 Memorandum dated 3/3/69 to Davies, 157
13 et al., with attachment, 5 pages
14 P-9 Document entitled Recommended 157
15 Practices Booklet, dated 11/7/68,
16 9 pages
17
18
19
20
21
22
23
24
25
22
1 DEFENDANTS EXHIBITS
2 NUMBER DESCRIPTION IDENT.
3 CertainTeed-1 Certification in Opposition 36
4 to Motion to Quash the
5 Deposition of Charles
6 Blakinger, 27 pages
7 CertainTeed-2 Affidavit of Charles B. 211
8 Blakinger dated 10/3/07,
9 with attachments, 20 pages
10
11
12
13 REQUESTS FOR PRODUCTION BY MR. PLACITELLA:
14 PAGE LINE
15 41 12
16 82 18
17 97 21
18 256 12
19
20
21
22
23
24
25
23
1 (Letter dated 2/2/09 from Placitella
2 to Edell, with attached Amended Notice to
3 Take Videotaped Deposition of Charles
4 Blakinger, 6 pages, received and marked
5 Exhibit P-1 for identification; and
6 CertainTeed Corporations Form B
7 Middlesex County Interrogatory Responses, 41
8 double-sided pages, received and marked
9 Exhibit P-2 for identification.)
10 THE VIDEOGRAPHER: Todays deposition
11 will be video recorded. We are now on the
12 record in the matter of various Cohen,
13 Placitella & Roth plaintiff clients versus
14 CertainTeed Corporation.
15 Todays date is January 6, 2010. The
16 time is approximately 10:04 a.m.
17 There are various docket numbers on
18 this. One of them is L-2994-09.
19 This is a video-recorded deposition
20 of Charles Blakinger being taken at Cohen,
21 Placitella & Roth at 2001 Market Street,
22 Philadelphia, Pennsylvania.
23 Camera operator Gerry Genna. The
24 court reporter is Ed Silver from Brody
25 Deposition Services.
24
1 All appearances will be noted in the
2 transfer--in the transcript.
3 Please administer the oath.
4 C H A R L E S B. B L A K I N G E R, ESQ.,
5 duly sworn testifies as follows:
6 EXAMINATION
7 BY MR. PLACITELLA:
8 Q Good morning, Mr. Blakinger.
9 How are you?
10 A Good morning, Mr. Placitella.
11 Q Its been a long time.
12 A Very long time.
13 Q I had dark, curly hair, I think, the
14 last time we met.
15 A We both had more hair.
16 MR. PLACITELLA: Okay. Can we first
17 mark just for purposes of the transcript
18 P-1, which is the deposition notice.
19 You have it. Okay.
20 Mark, is this the notice that hes
21 being produced pursuant to?
22 MR. EDELL: Is this the amended
23 notice, Chris?
24 MR. PLACITELLA: Yes, it is.
25 MR. EDELL: Yes. Then the answer is
BRODY DEPOSITION SERVICES, INC. - (908) 789-2000
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1 yes.
2 MR. PLACITELLA: Okay.
3 Q Mr. Blakinger, I have a series of
4 questions today to hopefully clarify some issues,
5 and Im going to be--do my best not to be
6 repetitive of other things youve testified to in
7 the past.
8 You current--where do you currently
9 live?
10 A 732 Cornerstone Lane, Bryn Mawr,
11 Pennsylvania.
12 Q And you still are senior counsel with
13 CertainTeed Corporation?
14 A Im associate general counsel.
15 Q Associate general counsel.
16 How long have you had that job?
17 A The title changed probably two or
18 three years ago.
19 Q And you are still being paid
20 somewhere in excess of $200,000 a year by
21 CertainTeed?
22 MR. EDELL: Objection to the form of
23 the question.
24 A If you include bonuses, yes.
25 Q Okay. Whats your role day-to-day
BRODY DEPOSITION SERVICES, INC. - (908) 789-2000
26
1 for CertainTeed as it currently exists?
2 A I manage litigation for them, and,
3 for the most part, my focus is managing asbestos
4 litigation.
5 Q Okay. Prior to working for
6 CertainTeed, its my understanding that you served
7 as litigation counsel for National Gypsum.
8 Correct?
9 A In asbestos, yes.
10 Q Okay. Not in-house counsel, but you
11 actually represented them in cases?
12 A Yes, although our firm was national
13 coordinating counsel for their asbestos
14 litigation, and it was--in many ways it was like
15 an in-house position--
16 Q Okay.
17 A --but we did also appear in cases on
18 occasion.
19 Q And National Gypsum was a competitor
20 of CertainTeed. Correct?
21 A To some extent. I mean, they made
22 building materials. Mostly, they were different.
23 Mostly, they didnt compete.
24 Q They also supplied asbestos products
25 to CertainTeed. Correct?
BRODY DEPOSITION SERVICES, INC. - (908) 789-2000
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1 A Some products, thats correct.
2 Q All right. You--have you ever served
3 as an officer for CertainTeed?
4 A No.
5 Q Okay. And you were never an employee
6 of CertainTeed during the time that it sold
7 asbestos-containing products. Correct?
8 A Thats true.
9 Q Okay. You provided testimony in
10 depositions. My count is more than 20 times.
11 A Probably--its probably closer to
12 25.
13 Q Okay. And am I correct that
14 CertainTeed is involved in approximately 70,000
15 asbestos cases?
16 A Well, it depends how you count cases
17 on inactive dockets. It may be more like 65,000
18 active cases now.
19 Q And what percentage of those cases
20 are mesothelioma cases?
21 A Probably about five or six percent.
22 Q Okay. In the cases that are the
23 subject of todays deposition, are you familiar
24 with those cases?
25 A Not really.
BRODY DEPOSITION SERVICES, INC. - (908) 789-2000
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1 Q Are you familiar with any of the
2 cases?
3 A I didnt really look at any case
4 materials to prepare for this. I believe I
5 understand in the Johnson case theres a claim of
6 exposure to corrugated asbestos cement siding
7 thats attributed to CertainTeed.
8 Q Okay.
9 A But I didnt read the testimony, and
10 I dont really know much more than that.
11 Q Okay. In these cases, has
12 CertainTeed asserted cross-claims against other
13 defendants?
14 A I dont really know.
15 Q Is it their practice to assert
16 cross-claims against other defendants generally in
17 the New Jersey asbestos litigation?
18 A Again, I dont really know. I mean,
19 typically we follow whatever the sort of practice
20 is in the different jurisdictions.
21 Q Is--am I correct that CertainTeed in
22 some jurisdictions asserts cross-claims for
23 contribution and/or indemnification against
24 codefendants?
25 A In--in some jurisdictions its
BRODY DEPOSITION SERVICES, INC. - (908) 789-2000
29
1 automatic that those are--that cross-claims are
2 made among defendants generally. I imagine
3 theres some jurisdictions where we routinely
4 include a little short cross-claim. We dont
5 pursue those very often.
6 Q And why not?
7 A Its just not a good defense strategy
8 to be attacking other defendants.
9 Q Okay. In this case are you
10 assert--in these cases are you asserting that the
11 products of other defendants contributed to any of
12 the plaintiffs injuries?
13 A I dont know enough facts to know
14 what were exactly asserting in these cases.
15 Q Well, do you generally assert that?
16 MR. EDELL: Objection to the form of
17 the question.
18 A We might sometimes assert that.
19 Q Do you know whether in these cases
20 you are asserting whether the products of any
21 bankrupt companies contributed to the plaintiffs
22 injuries?
23 A I dont know specifically as to these
24 cases.
25 Q When you worked as a lawyer for
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1 National Gypsum, did you ever assert cross-claims
2 against CertainTeed?
3 A Probably not.
4 Q And why not?
5 A Because we were both members of the
6 CCR, and you couldnt. They--they were waived by
7 being members of the CCR and before that the
8 Claims Asbestos Facility, those issues had all
9 been resolved among the members.
10 Q And did you ever represent
11 Cert--National Gypsum at a time when they werent
12 members of the CCR?
13 A Yes, for some years in the--in the
14 early 80s.
15 Q And those years in the early 80s, am
16 I correct, sir, that you in fact asserted
17 cross-claims on behalf of National Gypsum against
18 CertainTeed?
19 A I have no idea. I would say probably
20 not. But we might have been in cases where there
21 were automatic cross-claims among all defendants.
22 Q And was it your position in those
23 cases that products of CertainTeed contributed to
24 the plaintiffs injuries?
25 A I would say not really. I dont
BRODY DEPOSITION SERVICES, INC. - (908) 789-2000
31
1 recall any--any claims against CertainTeed at that
2 time.
3 Q So is there an understanding between
4 CertainTeed and National Gypsum that they dont
5 claim over against each other?
6 A Today?
7 No.
8 Q Its changed now that National Gypsum
9 is in bankruptcy?
10 A Well, we would probably like to make
11 some claims against National Gypsum, but we cant
12 because--
13 Q Okay.
14 A --theyve been in bankruptcy.
15 Q Is it CertainTeeds position that
16 some kind of asbestos fiber is more capable of
17 causing mesothelioma than others?
18 A I dont know what you would say
19 CertainTeeds petition is. I think we recognize
20 that there is expert testimony that types of fiber
21 are more hazardous than other types of fiber.
22 Q Well, whats the companys position?
23 A I dont know that really--that we
24 really have a position. We put on expert
25 witnesses on occasion.
BRODY DEPOSITION SERVICES, INC. - (908) 789-2000
32
1 Q To say what?
2 A They say what they say. In some
3 cases they might say chrysotile is less hazardous
4 than other types of asbestos.
5 Q And in other case they may not?
6 A You know, its hard to generalize
7 about the facts of all these many thousands of
8 cases. Yes, they might not.
9 Q So, depending on the case, they
10 decide what theyre going to assert in terms of
11 the ability of chrysotile to cause mesothelioma or
12 not?
13 A Depending on the facts of the case,
14 they make relevant assertions.
15 Q Is it CertainTeeds position that
16 chrysotile asbestos is not capable of causing
17 mesothelioma?
18 A I--I dont know. You keep saying
19 CertainTeeds position. I dont know that we
20 have a position.
21 Q Well, in these cases are you going to
22 assert that chrysotile is not capable of causing
23 mesothelioma?
24 MR. EDELL: Objection to the form of
25 the question.
BRODY DEPOSITION SERVICES, INC. - (908) 789-2000
33
1 A I would say we typically dont assert
2 that.
3 Q And thats because you sold products
4 that had fibers other than chrysotile. Correct?
5 MR. EDELL: Objection to the form of
6 the question.
7 A We sold some products that had fibers
8 other than chrysotile, thats correct.
9 Q Including crocidolite. Correct?
10 A In asbestos cement pipe, yes.
11 Q And other products. Correct?
12 A Not really other products. I think
13 it was just the pipe.
14 Q Well, you represented National Gypsum
15 during the time they were in litigation concerning
16 the Millington plant. Correct?
17 A Yes.
18 Q And youre aware that they got
19 asbestos fiber at the Millington plant from
20 entities in South Africa; are you not?
21 A It wouldnt surprise me, but I do
22 not--I dont really recall.
23 Q You dont recall being at depositions
24 where--
25 A Certainly, their New Orleans plant
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1 got fiber from South Africa.
2 Q And that would have been crocidolite
3 fiber. Correct?
4 A I think they got some crocidolite and
5 they got some amosite.
6 Q And there was both amosite and
7 crocidolite used in the asbestos cement products
8 manufactured at the Millington plant in
9 Millington, New Jersey; am I correct?
10 A I dont think so. I believe
11 crocidolite was only used in canal bulkheading,
12 and I just--I dont recall whether they even made
13 that product in the Millington plant.
14 Q So have you reviewed the testimony of
15 any of the workers at the Millington plant where
16 they specifically indicated they got fiber from
17 South Africa that was used on a routine basis in
18 the Millington plant?
19 MR. EDELL: Objection to the form of
20 the question.
21 A I certainly havent reviewed that in
22 many, many years--
23 Q Okay.
24 A --if I ever saw it.
25 Q So as you sit here today, you dont
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1 know one way or the other for sure whether there
2 was crocidolite or amosite fiber used in the
3 Millington plant in the manufacture of asbestos
4 cement products. Correct?
5 A I would say Im pretty sure
6 crocidolite was not used at Millington, and I
7 believe some amosite might have been used.
8 Q Okay. Now, Im going to ask you some
9 questions. Im--Im going to show you whats been
10 marked P-2 for identification.
11 MR. EDELL: Were going to get to the
12 interrogatories, Chris?
13 MR. PLACITELLA: Thats what Im
14 doing right now.
15 MR. EDELL: Okay. Because that was
16 the purpose of the deposition.
17 MR. PLACITELLA: Thats your purpose.
18 MR. EDELL: Just for the record,
19 well mark your certification dated October
20 16, 2009, when we were trying to work out
21 the parameters of the deposition.
22 And in closing you said, at paragraph
23 15, In light of the foregoing it is
24 respectfully submitted that Mr. Blakinger
25 should be compelled to appear for his
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1 deposition to answer all questions related
2 to the answers to the interrogatories
3 without restriction. Plaintiffs counsel
4 represents that he will not ask the same
5 questions that were asked in Bird case other
6 than questions needed for foundational
7 purposes.
8 And that is basically where we came
9 out with the special master, that you were
10 going to ask questions--
11 MR. PLACITELLA: I disagree with your
12 characterization--
13 MR. EDELL: Let me just finish,
14 Chris--
15 MR. PLACITELLA: Thats fine.
16 MR. EDELL: --then you can say
17 whatever youd like.
18 Okay?
19 So lets mark this as CertainTeed-1.
20 (Certification in Opposition to
21 Motion to Quash the Deposition of Charles
22 Blakinger, 27 pages, received and marked
23 Exhibit CertainTeed-1 for identification.)
24 (Off the record.)
25 MR. PLACITELLA: Just for the record,
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1 I dont agree with your characterization or
2 your reading four lines out of my
3 certification or your characterization of
4 what happened with the special master. But
5 well move on.
6 Q The--whats before you are Answers to
7 Interrogatories that you signed in the Bird case.
8 Correct?
9 A Yes.
10 Q Okay. And youve seen those before.
11 You were asked some questions about them at a
12 prior deposition. Correct?
13 A I believe thats correct.
14 Q Okay. And these were executed in
15 2008. Correct?
16 A Yes.
17 Q Im assuming that you have certified
18 other interrogatories in New Jersey since 2008?
19 A I think so.
20 Q All right. And have they changed in
21 substance in any way since 2008, to your
22 knowledge?
23 MR. EDELL: Objection to the form of
24 the question.
25 Are you asking whether he has
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1 executed additional answers--certification
2 to answers to the standard interrogatories,
3 Chris?
4 MR. PLACITELLA: Thats correct.
5 MR. EDELL: Okay.
6 A Im not sure I have executed
7 additional certifications. I think the same
8 answers may have been filed subsequently.
9 Q Okay.
10 A I dont really know how they filed
11 them.
12 Q They havent changed in any material
13 way, have they?
14 A I think thats correct.
15 Q Okay. Now, can you go to
16 Interrogatory A.2, please.
17 And you, by the way, you swore under
18 penalty of perjury that the information you were
19 supplying was true and accurate to the best of
20 your knowledge. Correct?
21 MR. EDELL: Objection to the form of
22 the question.
23 Take a look at the certification.
24 A To the best of my knowledge and
25 belief, yes.
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1 Q Okay. Now, can you go to A.2,
2 please.
3 A Okay.
4 Q Your answer to interrogatory
5 indicates that CertainTeed was originally
6 incorporated in the State of Maryland in 1917.
7 Do you see that?
8 A Yes.
9 Q How long after its incorporation did
10 CertainTeed start selling asbestos-containing
11 products?
12 A I would say the--the earliest we
13 would have been able to go back to is 1930. We
14 may have sold some asbestos products before 1930.
15 These would have been roofing products.
16 Q Okay. Now, can you go to
17 Interrogatory No. A.9.
18 A Okay.
19 Q Do you see that?
20 A Yes.
21 Q Okay. It asks what are the inclusive
22 dates that you did business in the State of New
23 Jersey.
24 What dates did you do business in the
25 State of New Jersey?
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1 A I dont know.
2 Q Well, who could tell me that?
3 A I dont know. We--I just dont
4 know. Once you go back that far, theres no
5 sources of information.
6 Q Well, Im asking you what--do you
7 have any records that say when you first started
8 to do business in the State of New Jersey?
9 A Its possible we have some record of
10 getting authorized to do business in New Jersey.
11 Some states you get that.
12 Q And where would those records be
13 kept?
14 MR. PLACITELLA: Do you guys need a
15 place to sit?
16 MR. EDELL: Youre going to have to
17 get a bigger conference room.
18 MR. PLACITELLA: Well, you know,
19 were trying. You got to pay us more
20 money.
21 A There would be--
22 MR. PLACITELLA: Okay.
23 A There would be some corporate records
24 that would show qualifications to do business, I
25 think. I dont know if they go back all the way
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1 to the beginning of the company.
2 Q Where would they be?
3 A At the corporate headquarters.
4 Q And who would be the custodian of
5 those records?
6 A I dont know. Theres no particular
7 custodian at the law department.
8 Q Well, if you had to go find them,
9 what would you do?
10 A I would go ask the legal assistant,
11 and she would go online and--
12 Q All right. I make that request,
13 please.
14 Do you know where--
15 MR. EDELL: Just so were clear,
16 Chris, when you say you make that request,
17 Im not going to keep a list of all your
18 requests--
19 MR. PLACITELLA: No. Hes going to
20 mark each one, and were going to put it at
21 the front of the transcript.
22 MR. EDELL: Youll send me a list of
23 requests for information or documents, and
24 Ill respond.
25 MR. PLACITELLA: Right.
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1 MR. EDELL: Okay?
2 MR. PLACITELLA: Every time I ask for
3 a document or a request, youll just mark
4 it, and then well have a list.
5 Okay?
6 MR. EDELL: I just want to make sure
7 we have that understanding.
8 MR. PLACITELLA: Im good with you.
9 Q Do you know where in the State of New
10 Jersey CertainTeed has historically done business?
11 A At one time we had a fiberglass plant
12 in Berlin, New Jersey. I cant remember when we
13 first had that plant. Probably in the mid-60s.
14 Q But am I correct that you sold
15 products all over the State of New Jersey almost
16 from the be--the time that CertainTeed was
17 incorporated?
18 A I would say I dont really know when
19 it first started back--going back that far. And
20 when we first started, we were based in East St.
21 Louis, Illinois, and I just dont know in those
22 beginning years whether we--how far east we went.
23 At some point we acquired a plant in
24 York, and at that point we probably would have
25 been selling roofing products in New Jersey.
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1 Q And when was that?
2 A Im not sure.
3 Q What decade, to your knowledge, did
4 you first start selling asbestos products
5 throughout the State of New Jersey?
6 MR. EDELL: I object to the form of
7 the question.
8 A Again, I dont really know. I could
9 guess and say the 20s.
10 Q Okay.
11 A It might be the 30s.
12 Q All right.
13 MR. EDELL: Were not contesting
14 jurisdiction here, Chris.
15 MR. PLACITELLA: The questions arent
16 for purposes of jurisdiction.
17 Q The--can you go to Interrogatory B.1,
18 please.
19 A Okay.
20 Q Tell me when you have it in front of
21 you.
22 A Okay.
23 Q Can you tell me what people you
24 consulted in answering these interrogatories?
25 A You know, not really. I could
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1 probably name a few names one time or another that
2 we consulted. My predecessor no doubt consulted
3 with a lot more people than--than I had and
4 collected some information that way.
5 Q Well, what people did you consult to
6 verify that the information that you certified to
7 in these interrogatories was true and accurate?
8 A Well, mostly the answers are based on
9 documents, because there arent a lot of people
10 that remember things going back all this long
11 way. There arent current employees.
12 At various times I have talked to
13 Lloyd Ambler, I have talked to Mike Noone.
14 Counsel has talked to a lot more people than I
15 have talked to. But really, when youre trying to
16 create historical information from 30 or 40 years
17 ago, the documents are a better source of
18 information than--than people.
19 Q So--so far we have two people.
20 Who else?
21 A That I talked to?
22 Q Right, that you spoke with in order
23 to verify that the information that you swore to
24 was true and accurate.
25 A I have talked to Curt Pontz. There
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1 were lots of other people back seven, eight years
2 ago. I cant name any more names.
3 Q Is there a list of people that you
4 maintain somewhere that youve consulted in
5 verifying these Answers to Interrogatories?
6 A No.
7 Q So, as far as you can remember,
8 theres three people.
9 MR. EDELL: Objection to the form of
10 the question.
11 A Im sure there are a lot more
12 people. But again, counsel did most of the
13 talking to the people, not me.
14 Q So what happened? The lawyers--your
15 lawyers talked to the people, and then they told
16 you, and then you put the information down?
17 MR. EDELL: Objection to the form of
18 the question.
19 A Me with the lawyers put the
20 information down. It was a joint--joint effort to
21 prepare responses. Counsel had a very big role in
22 that.
23 Q Well, who else do you know that your
24 attorneys got information from that ended up in
25 these Answers to Interrogatories?
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1 A Well, a lot of the people that are
2 listed. Somewhere here theres a list, I think,
3 of people who have given depositions. So they
4 would have talked to many of these people--
5 Q Okay.
6 A --to the extent they were around.
7 Q Now, you also indicated that you
8 consulted doc--
9 MR. EDELL: Just so were clear on
10 the record, youre talking about one of the
11 exhibits to the answers?
12 THE WITNESS: One of the exhibits to
13 the interrogatories lists depositions in
14 asbestos litigation and identifies a lot of
15 people.
16 Q Okay. Thats fair.
17 You indicate that much of the
18 information that you used to answers to--to answer
19 these interrogatories came from documents.
20 Correct?
21 A Yes.
22 Q Okay. What documents?
23 A Well, weve collected documents
24 relating to the companies manufacture and sale of
25 asbestos products. So theres dozens and dozens
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1 of boxes of documents that have been collected
2 that relate to asbestos products. Theres things
3 like annual reports.
4 Q Well, did you keep a record of what
5 you looked at in order to answer these--these
6 interrogatories?
7 A No.
8 Q Does--did you segregate the records
9 you looked at that you rely upon in answering
10 these interrogatories?
11 A Not specifically. But we have
12 collected into a document repository the documents
13 that relate to asbestos litigation that we found
14 in the companies files. So, in that sense,
15 theyre collected in--in a place.
16 Q So how many documents in this
17 repository?
18 A Theres probably a couple hundred
19 boxes.
20 Q And you looked at them all?
21 A No.
22 Q Which ones did you look at in order
23 to answer these interrogatories?
24 A I have looked at various ones. I
25 couldnt possibly rattle them off.
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1 Q You didnt keep a record of them?
2 A No.
3 Q So if I ask you in reference to any
4 specific interrogatory what did you refer to,
5 youre not going to be able to tell me?
6 MR. EDELL: Objection to the form of
7 the question.
8 A Probably not. Maybe in some
9 instances I would recall some particular thing I
10 looked at.
11 Q Okay. The only thing you can tell me
12 is you looked at some documents in the repository
13 as a basis for answering these interrogatories.
14 Correct?
15 MR. EDELL: Objection to the form of
16 the question.
17 A I looked at some and counsel looked
18 at some.
19 Q Well, did you then look at the
20 documents your lawyers looked at?
21 A Sometimes. Not always.
22 Q So theres information in here that
23 came from the lawyers that you did not verify on
24 your own?
25 A Yes.
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1 Q And what information would be in
2 these interrogatories that came from the lawyers
3 that you did not verify on your own?
4 A I cant answer that.
5 Q Well, you--
6 A The lawyers help write the answers.
7 And as says--as it says in the certification, you
8 know, Im relying on information provided by
9 people that I believe are reliable. And thats
10 the basis of the answers.
11 Q So the factual basis, the factual
12 information that supplied the interrogatory
13 answers that you rely upon came from your
14 lawyers?
15 MR. EDELL: Objection to the form of
16 the question.
17 A Some of it--some of it did.
18 Q All right. And are you asserting
19 privilege over that information?
20 A To the extent its in the
21 interrogatories, no.
22 Q So you have no problem with me asking
23 you, then, to the extent that theres information
24 that you relied upon from your lawyers, what that
25 information was?
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1 A Im not sure I quite understand the
2 question.
3 Q Did you review prior discovery
4 responses from CertainTeed in order to answer
5 these interrogatories?
6 A Im not sure about in these specific
7 ones. But at the beginning of the process, back
8 when I first came to the company and we were
9 collecting all this information, that was one of
10 the things we relied on, yes.
11 Q Okay. And do you maintain somewhere
12 in your files interrogatory answers that you
13 supplied historically in asbestos litigation?
14 A We maintain--in our document
15 management system, there are documents, basically
16 at least since Ive been there in 2001, that are
17 what we send out to counsel. We dont--they may
18 sometimes be revising certain of the responses or
19 changing things, and we dont then collect the
20 as-filed copy typically. So we do not maintain
21 the as-filed copies.
22 We have documents that were
23 communicated to counsel. If we needed an as-filed
24 copy, we would have to get it from counsel.
25 Q When you say document management
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1 system, what do you mean by that?
2 A Well, just like your law firm
3 probably has. Its...
4 Q Do you have a database of corporate
5 documents that youve consulted in order to
6 respond to discovery in asbestos litigation?
7 MR. EDELL: Objection to the form of
8 the question.
9 What do you mean by corporate
10 documents, and what do you mean by
11 database?
12 Q Do you know what a database is, sir?
13 A Yes.
14 And I would say no, because asbestos
15 focuses in the past, when documents werent
16 maintained electronically. So, for purposes of
17 asbestos, we dont really have a database that we
18 go to. There may be some minor questions that are
19 answered that way.
20 Q So have you ever objectively coded
21 the documents in your document repository?
22 A No.
23 Q Have you ever OCRd the documents in
24 your document repository?
25 A No.
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1 Q So if you need to find out
2 information in response to a specific discovery
3 request on a specific subject, does that mean you
4 have to go look at all 105 boxes to make sure that
5 the response is complete and accurate?
6 A Well, for the most part, the
7 questions are the same, so you dont have to do
8 that over again each time.
9 If theres something new that comes
10 up, typically we would call counsel, and they
11 would go to the repository, and they would go
12 to--like if there was a roofing question, they
13 would go to the roofing documents and--and try to
14 answer the question.
15 Q So do you have some index, general
16 index in your repository as to whats in what
17 box?
18 A Theres a box-by-box index. Its not
19 document by document. But it gives you the
20 general categories of whats in the box.
21 Q Okay. Can you turn to P--Im sorry,
22 B.5.
23 A Okay.
24 Q Do you have that in front of you?
25 A Yes.
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1 Q B.5 discusses trade organizations
2 that you are a member of are. Correct?
3 A Yes.
4 Q All right. And you list various
5 trade organizations. Correct?
6 A Yes.
7 Q Okay. The first one you list is
8 what?
9 A Im just reading the answer, NIMA.
10 Q Okay. And what was the purpose of
11 that organization?
12 A It had to do with insulation
13 products. I dont know a lot more about it.
14 Q Did you review any documents yourself
15 from--concerning NIMA in answering these
16 interrogatories?
17 A Probably not.
18 Q Who--did anybody review NIMA
19 documents on your behalf to answer these
20 interrogatories?
21 A I dont think we had really any NIMA
22 documents in our files.
23 Q Then how did you get--how did you
24 supply the information concerning NIMA in answer
25 to these interrogatories?
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1 A Im trying to remember. I did this
2 like seven or eight years ago.
3 I would say that people knew we were
4 in NIMA and TIMA, which was the successor, and we
5 probably called the organizations to get the
6 years.
7 Q Okay. Who was the source of that
8 information in this interrogatory?
9 Where did you get it?
10 Who did you consult?
11 MR. EDELL: Objection to the form of
12 the question.
13 A Who did we consult to get what? The
14 years?
15 Q The information thats contained
16 here, where did you get it from?
17 A Well, we collected documents, we
18 looked in our files, and that--through that we
19 identified trade associations we had some
20 involvement with.
21 I think in many instances if the
22 organization was still around, we actually
23 contacted them to confirm the years of
24 membership. We didnt really have any records
25 that would show the years of membership. But we
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1 basically just did it from the documents we could
2 find in our files that related to associations
3 having something to do with asbestos.
4 Q So what documents do you have in your
5 files concerning NIMA?
6 A I really dont know.
7 Q Where are they? Where would I find
8 them?
9 A If theres NIMA documents in our
10 files that relate to asbestos, and I dont know
11 whether there are or not, they would be in our
12 document repository.
13 Q So if you had to go find the NIMA
14 documents, does that mean youd personally have to
15 go look at all 105 boxes?
16 A No. I mean, I would call counsel,
17 and I suspect they would have to only look at a
18 few boxes.
19 Q And so how would I do that so I
20 wouldnt have to look at 105 boxes?
21 A Well, there--there would be an index,
22 and you would look at the index and pick out a
23 likely box.
24 Q So do you have an index that would
25 show me the likely box where the NIMA documents
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1 are located?
2 A I dont recall.
3 Q Well, then, how would I find out what
4 documents you looked at or relied upon in order to
5 answer these interrogatories?
6 A Again, Im not even sure there are
7 NIMA documents.
8 Q All right. So as you sit here today,
9 although youve provided information about NIMA,
10 you dont know who you spoke to, you dont know
11 what the source of the information is, and you
12 dont know if you have any documents relating to
13 NIMA. Correct?
14 (Mr. Edells cell phone rings.)
15 MR. EDELL: Excuse me. I apologize.
16 MR. PLACITELLA: No problem.
17 A I think thats correct. I cant
18 remember where each specific thing came from.
19 Q Okay.
20 A That may have come from a prior
21 interrogatory answer that was already there when I
22 arrived.
23 MR. EDELL: Chris, for your
24 edification, the interrogatory says, Further
25 information and documents pertaining to these
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1 organizations and that may be responsive to this
2 interrogatory and that have been found in the
3 companys files would be included in the documents
4 available for inspection at the offices of
5 CertainTeeds counsel, Goodwin Procter, in
6 Washington, D.C.
7 MR. PLACITELLA: Yeah. I know you
8 want me to go fish. I dont want to go
9 fish.
10 MR. EDELL: No, Im not asking you--
11 MR. PLACITELLA: I want to know--
12 MR. EDELL: --to go fishing.
13 MR. PLACITELLA: I want to know what
14 information he used to answer these
15 interrogatories. Thats what I want to
16 know.
17 MR. EDELL: Well, he said he couldnt
18 recall, and Im just trying to be helpful.
19 MR. PLACITELLA: I dont think hes
20 having any trouble with my interog--with my
21 questions.
22 MR. EDELL: He just said he couldnt
23 recall, thats all.
24 Q The--you have listed in here the
25 AIA/NA.
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1 Do you know what that is?
2 A Asbestos Information Association.
3 Q Okay. And what was the purpose of
4 that organization?
5 A I would say to exchange information
6 about hazards of asbestos.
7 Q And what is the source of the
8 information concerning the AIA/NA that you relied
9 upon in answering this interrogatory?
10 A Well, I know we have lots of AIA
11 documents, so Im sure some information comes from
12 documents. Lloyd Ambler was familiar with AIA.
13 He might have been a source of information.
14 Again, I cant recall specifically
15 when we wrote this answer eight or nine years
16 ago--
17 Q Well--
18 A --what the source of the information
19 was.
20 Q So--but you certified to these in
21 2008. Correct?
22 A Yes.
23 Q Under oath.
24 A Yes.
25 Q And what did you do in 2008 to verify
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1 the information in here is true and accurate to
2 the best of your knowledge?
3 MR. EDELL: Objection to the form of
4 the question.
5 A Well, I didnt go back and reverify
6 what we had compiled eight years before.
7 Q Well, how am I supposed to know what
8 information you relied upon in order to answer
9 these interrogatories? How do I know that?
10 A I dont know.
11 Q So as you sit here today, you cant
12 tell me what--specifically what information you
13 relied upon in answering this interrogatory.
14 True?
15 MR. EDELL: Objection to the form of
16 the question.
17 A I would say I cant recall, thats
18 correct.
19 Q Okay. You dont know what documents
20 you relied upon, and you dont know specifically
21 what people you spoke to. True?
22 A Thats largely true, except I believe
23 the documents are in the document repository.
24 Q And If I had to find those documents,
25 where would I look, who would I ask, without
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1 looking at all 105 boxes, or however many boxes
2 are there?
3 A I think there would be an index, and
4 probably AIA is listed in the index, because
5 theres probably a lot of AIA documents.
6 Q All right. So all the AIA documents
7 are in one place?
8 A I dont know if all of them, but a
9 lot of them would be.
10 Q Okay. Do you know what was
11 communicated by the AIA to CertainTeed as it
12 related to the dangers of asbestos?
13 A Well, Ive seen lots of documents.
14 Im not sure I can sit here and rattle off what
15 was communicated by AIA, but there were lots of
16 documents pertaining to hazards of asbestos.
17 Q Do you know--can you tell me what
18 CertainTeed did in response to the information
19 communicated to it by the AIA concerning the
20 hazards of asbestos?
21 A I can tell you some things. Probably
22 it isnt complete. But one focus of AIA was
23 protecting employees in plants. I know they
24 prepared some booklets that were distributed by
25 CertainTeed to its plant workers sometime in the
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1 early 70s, for example.
2 Q Anything else?
3 A Im sure there were other things.
4 When they got knowledge from AIA, they would then
5 act on that knowledge, I believe.
6 Q And when you say act on that
7 knowledge, what do you mean?
8 A Well, additional precautions in
9 plants, taking steps to handle waste differently.
10 Q Do you know that specifically as it
11 relates to AIA, that you took specific steps to
12 handle waste differently?
13 A No, I dont really know specifically
14 as related to AIA.
15 Q Okay. You indicate--you list in here
16 that you were a member of the National Safety
17 Council from 1949 to the present.
18 Do you see that?
19 A Yes.
20 Q Whats the source of that
21 information?
22 A Im almost certain that in that case
23 we called the National Safety Council to get the
24 years. We had no records that went back that
25 far.
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1 Q Do you know what information was
2 communicated to CertainTeed related to the dangers
3 of asbestos from the National Safety Council?
4 A No.
5 Q Did you make any effort to determine
6 what information was communicated from Cert--from
7 the National Safety Council to CertainTeed about
8 the dangers of asbestos?
9 A Not really.
10 Q Why not?
11 A Well, we looked--we didnt--we dont
12 have records. So from our own records, we cant
13 answer that question.
14 Q Well, you have accumulated records in
15 the course of litigation. Correct?
16 A Counsel probably has accumulated some
17 records.
18 Q Well, youve seen them personally?
19 A Ive seen--National Safety Council,
20 yeah, Ive seen some National Safety Council
21 minutes.
22 Q Do you contest in these cases that
23 you did not receive the information distributed by
24 the National Safety Council to its members?
25 When I say you, I mean
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1 CertainTeed.
2 A During the time we were a member,
3 no.
4 Q Okay. So when you answered
5 interrogatories about your knowledge of the
6 dangers of asbestos, you did not include
7 information related to CertainTeed from the
8 National Safety Council. Correct?
9 MR. EDELL: Objection to the form of
10 the question.
11 Which specific interrogatory are
12 you--
13 MR. PLACITELLA: The interrogatory
14 concerning what they knew about the dangers
15 of asbestos and when.
16 MR. EDELL: Which interrogatory?
17 MR. PLACITELLA: I think its B.19--
18 MR. EDELL: Lets take a look.
19 MR. PLACITELLA: --if I remember off
20 the top of my head.
21 Actually, its not. Its--that is
22 warnings. B.36.
23 A I think there may be a question
24 pending, but Ive lost it.
25 Q Okay. When you answered
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1 interrogatories as to when you first knew about
2 the dangers of asbestos, in answering those
3 interrogatories you did not in any way relate what
4 was told to CertainTeed by the National Safety
5 Council historically. True?
6 A I would say thats right. We dont
7 really know what was told to CertainTeed.
8 Q Well--but you could read the
9 documents and amend the interrogatory to be more
10 accurate. True?
11 A But we dont--
12 MR. EDELL: Objection to the form of
13 the question.
14 A But we dont--
15 MR. EDELL: The question that you
16 referred to is, When was the first time the
17 defendant became aware of or knowledgeable
18 of any disease or illness associated with or
19 causally related to the inhalation of
20 asbestos, asbestos fibers or asbestos dust
21 in any form whatsoever?
22 And that doesnt necessarily have any
23 relationship to the National Safety
24 Association.
25 Q Sir, do you believe that if an
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1 organization tells you in 1949 that asbestos is
2 bad, that that has nothing to do with when you
3 learned about asbestos being bad, according to Mr.
4 Edell?
5 MR. EDELL: Its not bad. The
6 question isnt bad.
7 MR. PLACITELLA: Dangerous, kill
8 people. Pick the word.
9 MR. EDELL: Thats not the question.
10 A I would say we dont know what
11 National Safety Council told us, we dont know who
12 went to the meetings, we dont know what they
13 focused on, we didnt have very much involvement
14 with asbestos back in the 49 and 50s.
15 So whoever may have been involved
16 with National Safety Council may have had nothing
17 to do with asbestos and didnt focus on that at
18 all. We just dont know.
19 Q Well, you were selling asbestos
20 products from the 1930s. Right?
21 A Some products.
22 Q And in the 40s. Correct?
23 A Some products.
24 Q And in the 50s. Correct?
25 A Yes.
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1 Q Okay. And in answering the
2 Interrogatory B.36, you never went to figure out
3 what was related to you by any organization prior
4 to 1961. True?
5 A I think we tried to figure out what
6 was related to us based on our records and what we
7 could find from CertainTeed records, but we didnt
8 go to look at organizations and investigate them.
9 Q Well, youve been involved in
10 asbestos litigation for a long time; am I correct?
11 A Yes.
12 Q And youre aware that records,
13 complete records for--from the National Safety
14 Council concerning the dangers of asbestos exist
15 and probably exist in the files of your very
16 lawyers. True?
17 A You know, for the National Safety
18 Council, years ago we got copies of minutes, but
19 they were basically mostly all illegible. So Im
20 not sure Ive ever read that many minutes of the
21 National Safety Council.
22 Q Would you agree--would you agree,
23 sir, that if I gave you a complete legible copy,
24 that you would read them, and if any of those
25 documents refer to the dangers of asbestos, you
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1 would go back and amend your interrogatory answer
2 to more accurately refrect--reflect when you were
3 first told?
4 MR. EDELL: Objection to the form of
5 the question.
6 A No, because I--I still question
7 whether just because theres a paragraph in some
8 long minutes would mean we dont know who went
9 there or what our involvement was with the
10 organization or what the purpose was for how a
11 person being involved. I dont think you can
12 attribute that paragraph to suddenly become
13 CertainTeeds knowledge.
14 Q Okay. So just so were clear, the
15 National Safety Council information, in answer to
16 Interrogatory B.5, the sole source of that
17 information was a phone call to find out the years
18 you were members?
19 A Again, Im not a hundred percent sure
20 if thats the sole source. Somebody--we had some
21 reason to call the National Safety Council,
22 because somebody must have said, Oh, I think we
23 were a member of that, but I dont know when it
24 began, and then we made a call to find out the
25 years.
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1 Q So all the information--theres no
2 information in any file of CertainTeed concerning
3 the National Safety Council, and your sole source
4 of information was a phone call?
5 A Well, the same answer--
6 MR. EDELL: Objection to the form of
7 the question.
8 A Its the same question that I just
9 answered.
10 Q Okay. You list here the Association
11 of Asbestos Cement Pipe Producers.
12 A Yes.
13 Q All right. Do you have
14 doc--documents related to that?
15 What--first--strike that.
16 Whats the source of the information
17 in answer to this interrogatory as it relates to
18 the Association of Asbestos Cement Pipe
19 Producers?
20 A Well, again, we have lots of
21 documents relating to that organization, and Lloyd
22 Ambler was directly involved in that organization,
23 so he would have been a source of information as
24 well, and maybe even some other employees. I
25 dont recall.
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1 Q And I spent some time with Mr. Ambler
2 asking him about that, so Im not going to do that
3 with you today.
4 You also list the Industrial Health
5 Foundation.
6 Do you see that?
7 A Yes.
8 Q Whats the source of that
9 information?
10 A Again, I think somebody thought we
11 had some involvement there, and I believe we did
12 call that organization also to get the years, as
13 we couldnt confirm the years.
14 Q Do you have any documents in your
15 possession concerning CertainTeeds involvement in
16 the Industrial Health Foundation?
17 A Now Im not sure if we do. I dont
18 know.
19 Q So, in terms of answering this
20 interrogatory, to your recollection, the sole
21 basis would be a phone call to the Industrial
22 Health Foundation?
23 A Well, thats the basis for the years,
24 yes.
25 Q Okay. You have here the Gypsum
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1 Association.
2 A Yes.
3 Q Thats something youre familiar with
4 both as an attorney for CertainTeed and as to when
5 you represented National Gypsum. Correct?
6 A Yes.
7 Q What information did you rely upon in
8 the possession of CertainTeed to answer this
9 interrogatory as it relates to the Gypsum
10 Association?
11 A Again, I dont think CertainTeed
12 really had any information at all, other than
13 somebody must have raised the issue that we were
14 in that organization, and we probably called them
15 to get that information as well.
16 Q Did you consult any person other than
17 that phone call?
18 A For the Gypsum Association, I doubt
19 it.
20 Q Okay. You list the American
21 Industrial Hygiene Association.
22 What is the source of that
23 information?
24 A I just dont really recall. Thats
25 probably from our own internal records.
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1 Q Okay. You have--what is the earliest
2 document that you have in your internal records
3 related to asbestos?
4 A I cant really answer that.
5 Q Do you have records that predate
6 1960?
7 A Again, we have, you know, different
8 kinds of records. We have annual reports that go
9 back. We have some product specifications and
10 different things like that. Some of those might
11 mention asbestos.
12 Q Well, what records are you aware of
13 that relate to asbestos that predate 1960,
14 generally?
15 A What do you mean by records that
16 relate to asbestos?
17 I mean, if its--if its like a
18 product formula that mentions asbestos as one of
19 the ingredients? Is that--
20 Q Well, tell me the kinds of records
21 you have, and then Ill ask the question. Im
22 trying to do it in a summary fashion to expedite
23 things.
24 A From before, really the late 60s, we
25 dont have that many different records. So we
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1 have annual reports. We have a few company
2 histories. We have product specification type
3 documents. We have some promotional materials,
4 but not very much.
5 Q What is the earliest documents that
6 you have concerning--in your possession concerning
7 historical knowledge of the dangers of asbestos?
8 A In the company records is, might even
9 be--
10 MR. EDELL: Im going to object to
11 the form of the question.
12 A Might even be the mid to late 60s.
13 Q In terms of sales records--do you
14 know what I mean by sales records?
15 A Yes.
16 Q --what is the earliest documents that
17 you have in your possession as it relates to sales
18 records?
19 A I think we have some--some pipe sales
20 records beginning in 67.
21 Q Okay. Other than pipe sales records,
22 do you have any other records that date back
23 before 1967?
24 A For sales records, I dont believe
25 so.
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1 Q Okay. Now, when I say sales records,
2 I mean anything related to product that
3 you--asbestos products that you sold, period.
4 Do you understand that?
5 A No. Thats broader than I was
6 thinking.
7 Q All right. Thats what I want to
8 make sure--
9 A I was thinking more like invoices or
10 something comparable to invoices.
11 For that, 67 I think is the
12 earliest.
13 Q All right.
14 A We have roofing sales records, but I
15 dont think they start until 1970. I dont think
16 we have any rec--sales records at all for the
17 gypsum products or for the railroad products.
18 Q What about siding products? When are
19 the earliest records for siding products?
20 A They would be part of the roofing.
21 So they would be 1970, roughly.
22 Q All right. So--
23 A Now, we have some other--again, since
24 you had a broader interpretation, we have some
25 other records. For example, on siding we have
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1 some. They arent sales invoices, but they are
2 pricing sheets that go back certainly through the
3 60s, maybe even into the 50s.
4 Q What are pricing sheets?
5 A It would be easier if I had one in
6 front of me. But basically, they list the
7 products and their prices. And it might be a
8 different price in different parts of the country,
9 or it might be--
10 Q Well, do you have any product pricing
11 sheets for any product sold by CertainTeed that
12 predate 1960?
13 A I--I think not, but Im not sure.
14 Its possible that the pricing sheets started in
15 59 or so.
16 Q Okay. That would be consistent with
17 what you said before.
18 A Okay.
19 Q I understand youve also, as part of
20 your work, collected documents from the National
21 Gypsum repository. Correct?
22 A Well, counsel have collected certain
23 documents, yes.
24 Q And some of those documents relate to
25 sales. Correct?
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1 A Yes.
2 Q What are the earliest documents that
3 CertainTeed has in its possession concerning sales
4 pertaining to National Gypsum?
5 A Im not sure. I think on invoices,
6 it probably is the late 60s or maybe even 70.
7 National Gypsum has dealer sales summaries that go
8 back to, arguably, 59 or 60. And I think 60 is
9 the first year when it shows prior years sales.
10 We probably, in some cases, have done
11 some searches of those records, and, I dont know,
12 counsel may have gotten copies of some of those.
13 So that would go back to 59, 60.
14 Q Do you have any National Gypsum
15 records that relate to any year prior to 1959,
16 1960?
17 A I just--for sales records, probably
18 not. I think the microfilm that they had for 45
19 to 55 is now unreadable. So I think when we
20 tried to look at that, it was unsuccessful. I
21 just dont recall if we have some other
22 miscellaneous documents. National Gypsum had
23 pretty many documents that went back to the 50s.
24 Q Okay. Can you take a look at B.10,
25 please.
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1 Im sorry. Lets talk with--lets
2 talk about B.7.
3 A Okay.
4 Q B.7 asks about your affiliation with
5 the Asbestos Textile Institute. Correct?
6 A Yes.
7 Q And your answer is that you never had
8 an official affiliation with the Asbestos Textile
9 Institute. Correct?
10 A Correct.
11 Q All right. But am I correct that
12 there were health and safety people at CertainTeed
13 who in fact were--attended meetings of the
14 Asbestos Textile Institute?
15 MR. EDELL: Objection to the form of
16 the question.
17 A I think I wasnt aware of that. But
18 in reviewing Mr. Amblers deposition and some of
19 the exhibits there, I saw that Leon Horowitz went
20 to at least one or two ATI meetings after he was a
21 CertainTeed employee.
22 Q Okay. So do you have any plans on
23 amending this interrogatory to be more complete
24 and more accurate?
25 A Well, I dont think we were a member
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1 or affiliated with, so I think this answer is
2 still correct.
3 Q You werent affiliated with even
4 though you had your industrial hygienist attend
5 their meetings? You dont think that means youre
6 affiliated with them?
7 MR. EDELL: Objection to the form of
8 the question.
9 A No, I dont think so.
10 Q Okay.
11 A If the question asked did anyone
12 attend the meetings, then we would have to change
13 that response. If we--probably in the past we
14 said we werent aware, but now Ive seen a
15 document.
16 Q Well, lets go down to B.9.
17 Whats that ask for?
18 Does it ask whether you ever attended
19 a meeting?
20 A Yes.
21 Q And you say you dont have any
22 information on that.
23 Thats not accurate, is it?
24 A Well, no. Ive seen, as exhibited in
25 Mr. Amblers deposition, that Mr. Horowitz did
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1 attend at least one meeting. So, yes, that answer
2 probably should be changed.
3 Q So is that your plan, to go back and
4 fix it?
5 A Yeah, we probably should change that
6 one.
7 Q Now, that information concerning
8 attendance at ATI meetings, that was known to
9 CertainTeed and their counsel before I took Mr.
10 Amblers deposition. True?
11 A I dont know if it was known to
12 CertainTeed.
13 Q Well, its in depositions of your
14 employees, is it not, or your former employees?
15 A It probably is in some deposition
16 somewhere.
17 Q So when you verified these
18 interrogatory answers as true and accurate to the
19 best of your knowledge as to whether CertainTeed
20 employees attended meetings of the ATI, what did
21 you do to make sure that information was true and
22 accurate?
23 A Well, I would say in our files we
24 could not find any information. And when we
25 preparing these answers back years ago, we were
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1 focused on what information we could get from our
2 files or from our employees, and we couldnt find
3 out whether or not we attended ATI meetings.
4 Q So this is an interrogatory answer
5 that dates back how many years?
6 A Well, I dont know. Im sure--I
7 dont know when we first--
8 MR. EDELL: September of 2008.
9 A Well, thats when we answered this
10 set. But we had answered the same set before, and
11 probably before I got there, we had probably had
12 to answer the form interrogatories in New Jersey.
13 So they probably are historical answers.
14 THE VIDEOGRAPHER: One minute left on
15 the tape.
16 MR. PLACITELLA: Okay. Why dont you
17 change the tape.
18 THE VIDEOGRAPHER: Off the video
19 record at 11:02.
20 (A short recess was taken.)
21 THE VIDEOGRAPHER: Back on the video
22 record at 11:10.
23 MR. PLACITELLA: Im assuming that we
24 dont have good enough food in here, because
25 theres two many people sitting in the
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1 hallway.
2 BY MR. PLACITELLA:
3 Q Can we go to B.10, please.
4 A Okay.
5 Q B.10 asks for whether CertainTeed was
6 affiliated or provided funding for the IHF, and
7 you refer me--you dont answer the question.
8 Youre referring me back to B.6.
9 Can you answer the question?
10 A Well, B.6 says IHF is 68 to 83.
11 Q Well, did you provide funding to
12 them?
13 A No, we were--not that I know of.
14 Q Okay. So the answer is to the best
15 of your--the correct answer to Interrogatory B.10
16 is to the best of your knowledge, CertainTeed did
17 not provide any funding to the Industrial Hygiene
18 Foundation. Correct?
19 A Well, as B.6 says, we were a member,
20 or B.5, whatever question that is. So if we were
21 a member, members may have had to provide dues or
22 something. I dont know. Im not aware of any
23 funding, other than any membership dues during the
24 time we were a member.
25 Q Okay. So other than membership dues,
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1 youre not aware of any funding to the IHF.
2 Im trying to get your correct
3 answers--
4 A Thats correct.
5 Q --and plug them in here--
6 A Okay.
7 Q --rather than your lawyers
8 objections. Okay. Thats my objective today.
9 MR. EDELL: We didnt object.
10 MR. PLACITELLA: Okay.
11 MR. EDELL: Theres no objection.
12 MR. PLACITELLA: Theres an objection
13 to B.6.
14 MR. EDELL: It says see answer to
15 Interrogatory B.6.
16 MR. PLACITELLA: All right. Which is
17 an objection.
18 MR. EDELL: Its not an objection.
19 MR. PLACITELLA: No. B.6 has the
20 objection.
21 Q So the correct answer to B.10 is,
22 other than membership dues, we did not provide any
23 funding.
24 A I believe thats correct.
25 Q Okay. Can you go to B.15, please.
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1 Before we get there, B.13, you--you
2 reference minutes related to asbestos litigation.
3 Do you see that?
4 A Yes.
5 Q And then you tell me to go fish at
6 Goodwin & Procter.
7 Do you see that?
8 A Yes.
9 MR. EDELL: Objection to the form of
10 the question.
11 Q Okay. Is that--are those records
12 segregated somewhere so I dont have to look at
13 105 boxes, all the minutes related to asbestos
14 litigation?
15 A Yes. I dont think its very many
16 minutes that are relevant, but I believe those
17 could be located.
18 Q Okay. Id make that request.
19 Now, can we go to B.15.
20 A Okay.
21 Q B.15 asks for a complete and detailed
22 description of the qualities that asbestos has or
23 had that caused your company or its subsidiary
24 affiliate to utilize asbestos in your products.
25 Correct?
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1 A Yes.
2 Q And after the objection, you say,
3 However, in general, asbestos was utilized in
4 products to provide strength or...control
5 viscosity.
6 A Yes.
7 Q Okay. Do you have a specific
8 knowledge as to why asbestos was in the
9 CertainTeed products?
10 MR. EDELL: Other than the answer
11 thats provided here?
12 MR. PLACITELLA: Correct. Correct.
13 A Im just trying to think whether I
14 know any more than that, and probably the answer
15 is, I dont.
16 Q Okay. Is there anybody else that
17 youre aware of that had--would have that
18 information other than you?
19 A I cant name any names, but people
20 who are more familiar with the product. Mike
21 Noone, for example, would probably have a lot of
22 knowledge about using asbestos to control
23 viscosity in roofing cements and coatings.
24 Q Okay. Mike Noone, youve mentioned
25 him a couple of times.
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1 Where is he currently located?
2 A Somewhere in the Philadelphia
3 suburbs.
4 Q Okay. Go to look at B.16 and B.17.
5 Okay. Am I correct that these two
6 interrogatories basically ask for information that
7 you would have received from other entities
8 concerning the dangers of asbestos?
9 A Yes.
10 Q Okay. And in B.17, you tell me to
11 look at B.16. Right?
12 A Yes.
13 Q So after I get through the
14 objections, you say that youve got some
15 information from trade associations such as the
16 AIA and the Asbestos Cement Producers
17 Association. Correct?
18 A Yes.
19 Q Okay. And what is the source of that
20 statement?
21 MR. EDELL: Objection to the form of
22 the question.
23 A Well, we have lots of documents from
24 some of these trade associations, such--such as
25 these two high producers and the AIA/NA, and--and
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1 many of those documents are on the general subject
2 of hazards of asbestos, at least broadly construe
3 that. Thats one of the main topics. And so
4 theres lots and lots of documents that would be
5 responsive to this--these questions.
6 Q As it relates to the AIA/NA or the
7 Asbestos Cement Producers Association?
8 A Or the Asbestos Cement Pipe
9 Producers--
10 Q Okay.
11 A --yes.
12 Q But then you say, Further
13 information that may be responsive...is
14 included...
15 What information is that?
16 Its in your document repository.
17 What information are you referring
18 to?
19 A Well, this--the question B.17, for
20 example, asks for detailed information. So if you
21 looked at the documents, you could answer the
22 dates, the documents have dates on them, and
23 theres many documents with different dates
24 providing different information.
25 Q But are you referring only to--thats
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1 what Im trying to understand--the pipe producers
2 documents and AIA documents, or are there other
3 documents that youre alluding to that--but youre
4 not specific about?
5 A I would say there probably are some
6 other documents that would fall into this broad
7 question that would be included there as well.
8 Q Well, how would I find that out?
9 What did you rely upon in order to
10 answer this interrogatory?
11 A On a topic this broad, you would have
12 to look at a lot of doc--a lot of the boxes of
13 documents.
14 Q Well, did somebody do that at your
15 request?
16 A Counsel has done that. When we
17 assembled the documents, weve looked at lots of
18 those documents, yes.
19 Q Well, Im trying to figure out what
20 the basis is rather than look at 105 boxes and
21 figure out what you think you meant.
22 What documents specifically did you
23 rely upon to answer these interrogatories?
24 A Theres no--this question is so
25 broad. Every time any of these other entities or
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1 another company communicated on the subject of
2 hazards of asbestos, the only thing we can do is
3 refer you to the documents. There are many, many,
4 many documents that would fall under this
5 question.
6 Q Well, did any of the--
7 A Theres no specific one I can name.
8 Q Did any of the suppliers of asbestos
9 or asbestos-containing products to CertainTeed
10 inform it of the dangers of asbestos?
11 A Well, one part of the answer to that
12 would be at some point there were warnings on bags
13 of fiber, and we were still making asbestos cement
14 pipes, so we would have received asbestos with
15 warnings.
16 And I guess I would say also, there
17 might be other documents from other companies that
18 are included in the many documents we have on this
19 general topic.
20 MR. EDELL: And that was not
21 included, that group of people or entities
22 were not included in Interrogatory No.
23 B.16.
24 MR. PLACITELLA: I dont know what
25 that means.
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1 Whats your testimony, Mr. Edell?
2 MR. EDELL: Never mind.
3 Q Did you include in answer to B.16 or
4 B.17 the information you received from asbestos
5 fiber suppliers?
6 A I think if we have any record
7 relating to hazards of asbestos that we would find
8 in our files, yes, it would be included in this
9 answer, because it would be in the repository.
10 Q So everything in the repository
11 generally is discussed in the answer to these two
12 interrogatories?
13 A I dont know what you mean is
14 discussed. We refer you to the documents in the
15 repository.
16 Q But I dont want to go there and try
17 to figure out what you mean. What I want to know
18 is what interrog--what documents you have in your
19 records that answer these interrogatories, because
20 thats whats required.
21 MR. EDELL: No. Its also a very
22 legitimate way of answering interrogatories
23 to refer you to a voluminous number of
24 documents that you can review that are
25 responsive to this interrogatory.
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1 MR. PLACITELLA: Okay. Well, Ill do
2 it a different way. I was trying to do
3 it...
4 Q What fiber supply--supplier had
5 warnings on their bags when they were sent to
6 CertainTeed?
7 A Well, I think virtually every fiber
8 supplier after OSHA required warnings on bags of
9 asbestos fiber would have had warnings on the bags
10 of asbestos fiber. So, starting in 72, mid-72,
11 we would have been receiving bags of asbestos that
12 had warnings.
13 Q Well, did you get asbestos fiber from
14 Manville for your products?
15 A Probably some.
16 Q And youre aware that Manville was
17 putting warnings on their fiber in, say, 64?
18 Were you aware of that?
19 MR. EDELL: Objection to the form of
20 the question.
21 A Not really.
22 Q Okay. When you say 72 was the year,
23 what is the basis for that testimony?
24 A Well, thats when OSHA required
25 warnings on the bags of asbestos fiber, I believe.
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1 Q Okay. So youre not referring to any
2 specific information. Thats just your
3 assumption.
4 A I would say thats my assumption,
5 yes.
6 Q Okay. So in response--B.16 discusses
7 or asks for information you received from fiber
8 suppliers. Correct?
9 MR. EDELL: Objection to the form of
10 the question.
11 A Yes.
12 Q Okay. And you dont specifically
13 answer that question. True?
14 A No, thats true.
15 Q Okay. You do--but you do include
16 information from the Cement Pipe Producers and the
17 AIA. Correct?
18 MR. EDELL: Well, thats because the
19 question is--
20 A Thats part of--
21 MR. PLACITELLA: I understand that.
22 Im going--Im not being unfair. I just
23 want to make sure we are where we are.
24 MR. EDELL: I just want to make sure
25 that the record--
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1 MR. PLACITELLA: I understand.
2 MR. EDELL: --is clear that youre
3 not being unclear.
4 MR. PLACITELLA: Im going
5 backwards. Just hang on.
6 MR. EDELL: Okay.
7 MR. PLACITELLA: Okay.
8 A What was the question?
9 Q Let me do it this way.
10 You did not respond to the part of
11 the question that asked what the asbestos fiber
12 suppliers told you. True?
13 A Well, I think the response says
14 theres information in the many documents in our
15 repository, and so thats encompassed in that part
16 of the response.
17 Q As you sit here today, can you tell
18 me what the asbestos fiber suppliers told you
19 about the dangers of asbestos?
20 A As I sit here today, no, I cant.
21 Q As you sit here today, can you tell
22 me generally what the Asbestos Cement Pipe
23 Producers Association told you about the dangers
24 of asbestos?
25 A I cant specifically rattle it off--
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1 Q Okay.
2 A --as I sit here today, no.
3 Q As you sit here today, can you tell
4 me, because you refer to it, what the AIA
5 specifically told you about the dangers of
6 asbestos?
7 A I didnt memorize all the documents,
8 but there are lots of documents that would provide
9 information responsive to that.
10 Q But can you tell me generally what
11 they told you?
12 A I would say I cant really.
13 Q Okay. Can we go to B.18.
14 B.18 asks whether you distribute or
15 sold asbestos-containing products in the State of
16 New Jersey.
17 A Yes.
18 Q Do you see that?
19 A Yes.
20 Q And it asks the date you started
21 selling asbestos products. Correct?
22 A Yes.
23 Q Would that be the same answer you
24 gave me before earlier in the deposition?
25 MR. EDELL: Objection to the form of
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1 the question.
2 Q Do you know when you started?
3 A Well, is this--this is the right
4 answer, I believe. Accordingly, it is likely
5 that CertainTeed first sold asbestos-containing
6 products in New Jersey some time prior to 1930.
7 Q Okay. And the date the sales were
8 terminated is what?
9 A Again, we sold few products after
10 1983.
11 Q Okay. And what about the areas?
12 A The areas in New Jersey?
13 Q Uh-huh.
14 A It would have been--it would have
15 been no limitation, I dont believe--
16 Q Okay.
17 A --within New Jersey.
18 Q What is the basis for the information
19 concerning the years that you sold?
20 A I think in those broad years, its
21 just based on the information we compiled about
22 when we were selling asbestos-containing products,
23 and--and basically the supposition that theres no
24 reason we can think of why we wouldnt have been
25 selling those products in New Jersey, even though
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1 we dont have sales records that go back to the
2 30s.
3 Q All right. You say that you have
4 some sales records for some asbestos-containing
5 products for certain years.
6 Do you see that?
7 A Yes.
8 Q Which products do you have sales
9 records for?
10 A Asbestos cement pipe and roofing
11 products, which would include siding. I believe
12 thats the two categories that we have sales
13 records for.
14 Q Okay. Nothing else?
15 A I believe thats correct.
16 Q Okay. And for the as--the asbestos
17 cement pipe product, what years do you have them?
18 A I believe you know this better than I
19 do. I believe--
20 MR. PLACITELLA: You know what? I
21 asked him that. Dont ask--dont--dont
22 answer that question.
23 Q For the roofing products and siding
24 products, what years do you have them for?
25 A I--theyre organized by plant, and it
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1 might not be the same for each roofing plant, but
2 I believe typically its beginning in 1970 up
3 through into the early 80s. But were missing
4 some months. I think--it seems that most plants
5 were missing 1974 for some reason.
6 Q All right. And how are those records
7 organized, if at all?
8 A As I said, theyre by plant, and I
9 believe theyre basically just chronological by
10 plant.
11 Q Okay.
12 A So you would go to the York roofing
13 plant, and there would be a box or some binders or
14 something for 1970, and it would just be
15 chronological.
16 Q So if you wanted to look at--find out
17 where all the places in New Jersey were where you
18 sold roofing products to, how would you do that?
19 A You would have to just page through
20 page by page and pull out or tab or identify the
21 New Jersey sales.
22 Q All right. And do you have those
23 sales segregated in a specific box?
24 A You mean just for New Jersey?
25 Q Correct.
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1 A No.
2 Q Is the New--where did the--the New
3 Jersey records, are they located with a group of
4 other records for other states?
5 A As I said, theyre organized by
6 plant.
7 Q Okay.
8 A So you would go to the plant that
9 would cover New Jersey.
10 Q All right.
11 A But it would also cover 10 other
12 states.
13 Q Where--
14 A And it would just be in order in that
15 plant, and the first state, it might be
16 Pennsylvania--
17 Q Okay.
18 A --and then it might be New Jersey.
19 Q What plant is that for New Jersey?
20 A For roofing products, it was York,
21 Pennsylvania.
22 Q And siding products?
23 A Well, it would be the same way. They
24 were just sold to the roofing plants.
25 Q Did the siding products also include
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1 Millington?
2 A Well, what do you mean include
3 Millington?
4 Q Im sorry. Youre right. Scratch
5 that.
6 The--so the records you have related
7 to the sales of roofing and siding products are
8 the York plant records. Correct?
9 A That would be for New Jersey, yes.
10 Q For New Jersey.
11 So if I wanted to look at all the
12 sales records for the State of New Jersey, you
13 would refer me to the box related to York?
14 A Yeah. Box or boxes, yes.
15 Q Do you know how many there are?
16 A I dont.
17 MR. PLACITELLA: All right. Ill
18 make a request for--
19 A A handful.
20 MR. PLACITELLA: I dont need to go
21 to Goodwin & Procter. Ill just request
22 those records.
23 (Off the record.)
24 Q B.20, do you have that in front of
25 you?
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1 A Yes.
2 Q B.20 asks about people involved who
3 took part in your decision to place a warning on
4 asbestos or asbestos-containing products.
5 Correct?
6 A Yes.
7 Q Youve listed a number of people.
8 Did any of these people have any role
9 in--related to warnings on products other than
10 asbestos cement pipe?
11 A Curt Pontz might have had broader
12 involvement with warnings. The other three I
13 think were just pipe.
14 Q Okay. And Mr. Pontz is listed as an
15 esquire.
16 Is he still alive?
17 A Yes.
18 Q And where is he located?
19 A In Philadelphia.
20 Q And what was his role as it related
21 to warnings?
22 A Well, he was just a lawyer in the law
23 department who might have been consulted by a
24 business unit when they had a question about
25 warnings.
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1 Q Okay. Do you know whether he
2 consulted on any--the--the need to put on warnings
3 for any products other than asbestos cement pipe?
4 A In connection with asbestos, I dont
5 believe so.
6 Q Okay. So, you list in your responses
7 to interrogatories as various attachments
8 different products that you either manufactured or
9 sold over the years. Correct?
10 A Yes.
11 Q And in those attachments, do you
12 refer me back to B.20 when it asked about
13 information for warnings?
14 A I dont recall.
15 Q Okay.
16 A Probably not.
17 Q Would it be more a accurate answer to
18 say that there is no one for any product other
19 than asbestos cement pipe and here is who they
20 are?
21 A I dont understand your question.
22 Q Well, there is--there is nobody at
23 CertainTeed that was ever involved in--in--in
24 making a decision about whether you should put a
25 warning on any product other than asbestos cement
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1 pipe. True?
2 MR. EDELL: Whoa, whoa, whoa. Slow
3 down.
4 The--Ill withdraw. Go ahead.
5 A I dont--I dont believe the subject
6 of putting on a warning pertaining to asbestos
7 ever came up on any other products other than
8 pipe.
9 Q Are you certain?
10 A Well, all you can do is look--look
11 and investigate and--and see what you find, and
12 Im not aware of that being considered.
13 Q Okay. Im going to put an asterisk
14 on that and go back to it later and see if we need
15 to change that answer. Okay?
16 A Okay.
17 MR. PLACITELLA: Can you mark that,
18 please, so I can get that testimony?
19 THE REPORTER: Yes.
20 Q The next interrogatory answer, B.21,
21 asks prior to 1964, did any employee ever
22 recommend a warning be put on any of the
23 asbestos-containing products.
24 Do you see that?
25 A Yes.
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1 Q Okay. If that interrogatory was
2 changed to after 1964, did any employee of this
3 defendant ever communicate that a warning should
4 be used, what would your answer be, other than as
5 it relates to asbestos cement pipe?
6 A I dont think an employee ever
7 recommended a warning on any other product.
8 Q Okay. B.23--
9 THE VIDEOGRAPHER: Off the video
10 record at 11:33.
11 (Off the record.)
12 THE VIDEOGRAPHER: Back on the video
13 record at 11:34.
14 BY MR. PLACITELLA:
15 Q Im looking at B.23, which relates to
16 health research.
17 Do you see that?
18 MR. EDELL: Objection to the form of
19 the question.
20 MR. PLACITELLA: Im trying to
21 abbreviate. Ill read the question.
22 MR. EDELL: Its related to medical
23 literature.
24 MR. PLACITELLA: Okay.
25 Q Did--
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1 MR. PLACITELLA: Fair enough.
2 Q Did defendant or its agents or
3 employees ever make any effort to keep abreast of
4 medical literature concerning potential health
5 hazards posed by the use of and/or exposure to
6 asbestos?
7 Did I read that correct?
8 A Yes.
9 Q Okay. And you provide some
10 information in answers to this interrogatory about
11 the medical director and industrial hygienist.
12 Do you see that?
13 A Yes.
14 Q And you say and employees who
15 attended certain trade associations.
16 Do you see that?
17 A Yes.
18 Q What associations are you referring
19 to?
20 A Well, I believe generally we were
21 referring to the ones that we were a member of
22 that were listed in one of the other questions.
23 Q In answer to B.6?
24 A Yeah.
25 Q Okay. And which meetings are you
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1 referring to?
2 A Again, the subject would have been
3 discussed at many meetings of many of those
4 associations.
5 Q Okay.
6 A I dont think we were being specific.
7 Q Okay.
8 MR. EDELL: And again, the answer
9 refers you to--
10 MR. PLACITELLA: I know. Go fish.
11 MR. EDELL: No.
12 MR. PLACITELLA: Okay.
13 MR. EDELL: --to where the documents
14 relevant to this answer can be reviewed by
15 you.
16 MR. PLACITELLA: Okay.
17 Q Did you review any documents in order
18 to answer this interrogatory, Mr. Blakinger?
19 A I--I dont think I reviewed any
20 specific documents.
21 Q Okay.
22 A Well, I should amend that.
23 At some point when we compiled the
24 information of, you know, who these industrial
25 hygienists are, with the years, someone must have
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1 investigated that this would have been some years
2 ago that we compiled the list of industrial
3 hygienists.
4 Q Do you know what the source of the
5 information is in response to this interrogatory?
6 A Which information?
7 Q The information that you allude to.
8 What is the source of your
9 statements?
10 MR. EDELL: Objection to the form of
11 the question.
12 Which statements, Chris?
13 Q What documents did you
14 confer--consult specifically to answer this
15 interrogatory? Do you know?
16 A I dont know.
17 Q Okay. What people did you speak to
18 specifically to answer this interrogatory?
19 A Again, I dont recall.
20 Q Interrogatory B.33 refers to workers
21 compensation claims.
22 A Yes.
23 Q Do you see that?
24 Okay.
25 Are you aware as to whether any
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1 people who worked at CertainTeed developed an
2 asbestos-related disease prior to 1970?
3 A Im not aware of that.
4 Q Okay. Are you aware of the fact that
5 one of your corporate officers who has testified
6 on your behalf has developed an asbestos-related
7 disease?
8 A Yes.
9 Q And who is that?
10 A John McGinley.
11 Q And what was his job?
12 A Well, he worked at Keasbey before he
13 came to CertainTeed, and I believe he was involved
14 in--at Keasbey, and maybe in the early years at
15 CertainTeed, in dust collection equipment and
16 modernizing the plants in that regard.
17 Eventually, he became an executive in the pipe
18 division. I dont remember his title at--at the
19 time he died, but--
20 Q Okay. So he was the guy whose job it
21 was to make the plant safer.
22 A I think that was one of his
23 responsibilities, yes.
24 Q But he ended up getting sick anyhow.
25 A Thats true.
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1 Q And what does he have?
2 A He died of mesothelioma.
3 Q All right. So the man who was in
4 charge of making the plant safer, would you say he
5 had high levels of exposure or low levels of
6 exposure?
7 MR. EDELL: Objection to the form of
8 the question.
9 At what point in time?
10 MR. PLACITELLA: At any point in
11 time.
12 A I dont really know exactly. Ive
13 understood that in his earliest years working at
14 Keasbey, and maybe beginning at CertainTeed, he
15 would have had reasonably high exposures.
16 Q He was the guy in charge of making
17 sure nobody got exposed to asbestos.
18 A Well, no. Back then he wasnt in
19 charge. He was--he was an employee.
20 Q Okay.
21 A He was not the person in charge. But
22 he would have been the person working with dust
23 collection equipment, cleaning it out, doing
24 things like that--
25 Q Right.
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1 A --I would think, among other things.
2 Q He worked with the equipment that was
3 supposed to prevent exposure. True?
4 MR. EDELL: Objection to the form of
5 the question.
6 A It was supposed to control exposure.
7 Q Right.
8 A Yes, that would have been one of his
9 responsibilities back at that time.
10 Q All right. And the man who was--had
11 the job of trying to prevent exposure died of
12 mesothelioma himself. True?
13 A Thats true.
14 Q Okay. Now, I want to--I want to ask
15 you some questions about you referred to before
16 asbestos cement board.
17 Do you recall that?
18 A I dont recall referring to it, but--
19 Q You sold asbestos cement board.
20 Correct?
21 A Yes.
22 Q Okay. And am I correct that you have
23 no samples in your possession of any of the
24 asbestos cement board that you might have sold?
25 A Thats true.
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1 Q Okay. And you dont have any
2 catalogs relating to any of asbestos cement board
3 that you might have sold?
4 MR. EDELL: Objection to the form of
5 the question.
6 A I dont think we do. I think thats
7 correct.
8 Q And you dont have any advertisements
9 for any of the asbestos cement board that you
10 might have sold?
11 A I think thats correct.
12 Q All right. Is there any doubt in
13 your mind that you sold asbestos cement board?
14 A No.
15 Q Okay. When you sold asbestos cement
16 board, how would a worker or consumer know it was
17 your product?
18 A When it was shipped, I believe in the
19 packaging there was a labeling on the cardboard
20 part that sort of held--held the bundle of board.
21 Once it was taken apart, the worker wouldnt know,
22 because there was no--no product name or company
23 name on the product itself.
24 Q Okay. But the asbes--the asbestos
25 cement board, when it was shipped, had a band
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1 around it, basically?
2 A Yes. Basically, yes.
3 Q And the met--the band was metal
4 covered by cardboard?
5 A Or cardboard underneath the metal
6 strap--
7 Q Okay.
8 A --and I believe that somewhere on the
9 cardboard would be the company name.
10 MR. PLACITELLA: Okay. Im going to
11 see if I can shorten this up a little bit.
12 So why dont we--why dont we take a
13 two-minute break.
14 Okay?
15 THE VIDEOGRAPHER: Off the video
16 record at 11:42.
17 (A luncheon recess was taken.)
18 THE VIDEOGRAPHER: Back on the video
19 record at 12:30.
20 (Off the record.)
21 MR. PLACITELLA: Ready?
22 THE VIDEOGRAPHER: Im ready. Were
23 running.
24 MR. PLACITELLA: Okay. Good.
25 How am I going to run without the
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1 mike.
2 Now were running.
3 Is Mr. Blakinger miked up?
4 THE WITNESS: Yup.
5 MR. PLACITELLA: Did we take the mike
6 away from Mr. Edell?
7 MR. EDELL: I dont have a mike.
8 MR. PLACITELLA: Okay. Thats true.
9 We dont need it. All right.
10 BY MR. PLACITELLA:
11 Q Can you look, please, at answer to
12 C.13.
13 Interrogatory 13 for the standard
14 Middlesex County interrogatories asks whether you
15 have any information on employees or salesmen
16 whose responsibility was to sell asbestos products
17 for CertainTeed in the State of New Jersey.
18 Generally, thats what it asks.
19 Correct?
20 A Yes.
21 Q Okay. And your answer is you dont
22 have sufficient information to respond.
23 What do you mean by that?
24 A That we dont have any lists of
25 salesmen that would identify all salesmen that
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1 were ever in the State of New Jersey.
2 Q Do you have the names of any of the
3 salesmen?
4 A I think as it says, it refers these
5 are the documents, and--and Im sure some salesmen
6 would occasionally be mentioned in some of the
7 documents. I dont re--I dont recall whether a
8 salesman is identified on the sales invoice, for
9 example, but they may--may well be.
10 Q Did you make any effort to review the
11 documents yourself to determine whether there are
12 in fact documents responsive to this
13 interrogatory?
14 A No.
15 Q Did you commission anybody to
16 determine whether there are in fact documents
17 responsive to this interrogatory?
18 A No.
19 Q Okay. So when you tell me to go
20 fish, you dont even know if Im going to catch
21 anything.
22 MR. EDELL: Objection to the form of
23 the question.
24 Q Correct?
25 A I think if you looked at the
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1 documents, you would probably find some salesmen.
2 But it would certainly not be complete. It would
3 just be haphazard, because there is no listing.
4 Q Okay. C.13--go to C-16. Im sorry.
5 C-16 asks whether you have any
6 containers or sales literature, basically.
7 Correct?
8 A Well, it asks--
9 MR. EDELL: Not exactly.
10 A It asks if the containers had
11 writing.
12 Q Okay. It says, Did the packages or
13 containers for the asbestos containing products
14 that your company sold or distributed in...New
15 Jersey contain any writing or labels?
16 And then it asks for information on
17 the labels. Correct?
18 A Yes.
19 Q Okay. And you say, Product
20 literature for CertainTeeds asbestos-containing
21 products, which often contains pictures of
22 products or their packaging, is available...
23 How do you know that?
24 A Well, Ive seen lots and lots of it.
25 For various products, theres various promotional
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1 literature, and when you look through it,
2 sometimes it has pictures of the products.
3 Q Do you have that segregated
4 somewhere?
5 A Well, only in the sense that its--if
6 its for asbestos products, its in the repository
7 at Goodwin Procter and there is an index to the
8 boxes that probably directs you to a number of
9 boxes that would contain that kind of
10 information.
11 Q So the index would tell me, if I
12 looked, where the product literature was and
13 information concerning labeling?
14 A I dont know if its as to labeling.
15 I think--I think you could find product literature
16 by looking at the index.
17 Q Okay. This question asks about
18 labeling, and you say go look at the repository,
19 and Im trying to figure out, if I have to get
20 that information, whether I have to go to--through
21 105 boxes or not.
22 MR. EDELL: It doesnt just say
23 labeling. It says contain any writing or
24 labels.
25 MR. PLACITELLA: Then it says for
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1 each such label. Thats what I want to know
2 about, labels.
3 Q Do I have to look at 105 boxes to
4 determine whether you have information and
5 documents related to labeling?
6 A You wouldnt have to look at all the
7 boxes. You would have to look at a number of
8 boxes.
9 Q Well--
10 A Theyre by--
11 Q --is there some index to tell me what
12 to look at?
13 A Theyre by product. So, for some
14 products, all the documents we have for the whole
15 product is a box or two. For some of the older
16 products, gypsum products or railroad products, we
17 have very few documents. So you would pull a box
18 and you would look, and theres probably a picture
19 of some of the packaging by some haphazard year
20 and you would see some of the writing thats on
21 the package that way.
22 We probably have label specifications
23 occasionally, but it would be nothing that would
24 be complete or comprehensive.
25 Q And thats stuff that you looked at
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1 yourself?
2 A Ive looked at lots of it.
3 Q Okay. You indicated before, earlier
4 in the deposition, that you were familiar with one
5 of the cases, the Johnson case, that related to
6 asbestos cement siding or board. Correct?
7 A That overstates it. I said I was
8 aware that the Johnson case I believe involved a
9 claim of corrugated asbestos cement siding.
10 Q And how did you know that?
11 A My counsel must have told me that.
12 Q Okay. And I want to show you--
13 MR. PLACITELLA: Can we mark this
14 next?
15 (Excerpt of videotaped de bene esse
16 deposition testimony of James J. Johnson,
17 Volume 1, on 9/17/09, 8 pages, received and
18 marked Exhibit P-3 for identification.)
19 Q Im going to show you whats been
20 marked P-3 for identification, which I represent
21 to you are excerpts from Mr. Johnsons de bene
22 esse testimony on September 17th, 2009, and Im
23 going to refer you specifically to pages 50
24 through 52.
25 MR. EDELL: Let me see that first.
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1 Q Have you ever been shown any of Mr.
2 Johnsons testimony as it relates to CertainTeed?
3 A I dont think Ive ever seen the
4 testimony itself before.
5 Q All right. Do you see in the--and I
6 bracketed the pieces Im interested in. Do you
7 see in the upper left-hand corner where it talks
8 about what he did at Public Service?
9 A Yes.
10 Q And it says he worked there in the
11 mid-1950s. Correct?
12 A Yes.
13 Q Okay. And it asks about what he did
14 there, and he talks about using siding to sheath
15 commercial buildings. Correct?
16 MR. EDELL: Objection to the form of
17 the question.
18 A Yes.
19 Q Okay. Did you sell asbestos cement
20 siding for commercial buildings?
21 A I believe we sold flat sheets, but we
22 didnt sell corrugated.
23 Q I didnt ask that question. My
24 question--Ill get to that.
25 Did you sell asbestos cement siding
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1 for commercial buildings?
2 A Yes. I think the flat sheets that we
3 sold, that was one of the main uses.
4 Q Okay. And do you see in the upper
5 right-hand corner, upper right-hand corner where
6 Mr.--and Mr. Johnson identifies CertainTeed as the
7 supplier of the cement siding that he used.
8 Correct?
9 A Yes.
10 Q Okay. And you see in the upper
11 right-hand corner where he describes how the
12 siding was packaged?
13 A He tells some information about that,
14 yes.
15 Q He says that it had a metal band
16 around it. Correct?
17 A Yes.
18 Q Thats how you sold asbestos cement
19 siding. Correct?
20 A I believe so.
21 Q And that it had a paper on it with
22 the name CertainTeed.
23 Thats how you sold asbestos cement
24 siding, isnt it?
25 A Ive always understood it was on the
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1 cardboard.
2 Q Paper cardboard?
3 A Only on the cardboard.
4 Q Is that--his testimony consistent
5 with how someone would know it was CertainTeed,
6 that there was an addition, it was not on the
7 product itself, but it was on paper or cardboard?
8 A Yes, I think thats consistent.
9 MR. PLACITELLA: Okay. Now, can I
10 have this marked next, P-4.
11 (Excerpt of videotaped de bene esse
12 deposition testimony of James J. Johnson,
13 Volume 2, on 9/30/09, 4 pages, received and
14 marked Exhibit P-4 for identification.)
15 Q Im going to show you whats been
16 marked P-4 for identification, which is day two of
17 Mr. de bene--Mr. Johnsons deposition, de bene
18 esse, 9/30/09, and it represents part of Mr.
19 Edells cross-examination of Mr. Johnson.
20 Do you see that?
21 MR. PLACITELLA: And Im going to
22 play the cross-examination for the video
23 record. Ill try to play it as loud as I
24 can.
25 (The following is excerpted
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1 videotaped de bene esse cross-examination by
2 Mr. Edell of James J. Johnson on 9/30/09:
3 QUESTION: Well, did you ever work
4 with their product?
5 ANSWER: Not that I can remember.
6 QUESTION: Well, Im sure there are
7 a lot of asbestos-containing products that
8 you worked with that you cant remember the
9 manufacturer, isnt that correct?
10 ANSWER: Correct.
11 QUESTION: And you may very well
12 have worked with Gold Bond Corrugated and
13 you just dont recall?
14 MS. PLACITELLA: Objection, assumes
15 facts not in evidence.
16 Theres been no testimony about
17 that, Counselor.
18 QUESTION: Isnt that correct, sir?
19 ANSWER: I couldnt be sure of that.
20 QUESTION: You couldnt be sure one
21 way or the other?
22 MS. PLACITELLA: Objection,
23 harassing the witness, Counselor.
24 QUESTION: Is that correct?
25 ANSWER: You got me off on a
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1 tangent here.
2 QUESTION: Okay.
3 Lets--lets--lets make it--lets make it
4 even easier for you.
5 If I were to tell you that
6 CertainTeed never manufactured corrugated
7 transite board or corrugated asbestos cement
8 board, would you have any reason to
9 disbelieve that?
10 MS. PLACITELLA: Objection, assumes
11 facts not in evidence, Counselor.
12 MR. EDELL: It will be in evidence
13 at the time of trial.
14 MS. PLACITELLA: Objection, assumes
15 facts not in evidence.
16 You can answer the question.
17 QUESTION: Do you have any reason to
18 believe disbelieve that, sir?
19 ANSWER: Do I have reason to believe
20 that?
21 QUESTION: Yes. If there was
22 testimony that CertainTeed never
23 manufactured trans--either corrugated
24 transite board or corrugated asbestos cement
25 board, do you have any reason to disbelieve
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1 that they never manufactured it?
2 MS. PLACITELLA: Objection, assumes
3 facts not in evidence.
4 ANSWER: I--
5 MS. PLACITELLA: Do you understand
6 the question?
7 THE WITNESS: Yeah, I think I
8 understand the question. Hes telling me
9 they never manufactured it.
10 MR. EDELL: Thats absolutely true.
11 ANSWER: Right. I dont--
12 MS. PLACITELLA: Wait, objection as
13 to the absolutely true part of the
14 statement.
15 QUESTION: Go ahead.
16 ANSWER: Yeah, I can believe that.
17 QUESTION: And you can believe that
18 your--your recollection could be faulty--
19 MS. PLACITELLA: Objection
20 QUESTION: --on--on that issue,
21 correct--
22 MS. PLACITELLA: Objection
23 QUESTION: --because you worked with
24 different products, you may have worked with
25 or around CertainTeed products, other
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1 CertainTeed products, correct?
2 MS. PLACITELLA: Objection,
3 harassing the witness.
4 QUESTION: Is that correct, sir?
5 ANSWER: Did they ever sell a
6 product?
7 QUESTION: No.
8 MS. PLACITELLA: Objection, youre
9 assuming facts not in evidence, Counselor.
10 QUESTION: Well, Im going to
11 ask--Im going ask you to assume that they
12 never sold corrugated asbestos cement
13 board.
14 MS. PLACITELLA: Are you a--are you
15 a representative of CertainTeed?
16 MR. EDELL: I am representing what
17 the evidence will be at the time of trial.
18 MS. PLACITELLA: Objection,
19 objection.
20 QUESTION: Do you have any reason to
21 disbelieve that, sir? Do you have any
22 factual basis to--to dis--to disprove that?
23 MS. PLACITELLA: His testimony,
24 Counselor.
25 MR. EDELL: He said he could be
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1 wrong.
2 MS. PLACITELLA: He never said
3 that.
4 ANSWER: No, I didnt say I could
5 be wrong.
6 QUESTION: You couldnt be wrong on
7 it?
8 ANSWER: No--
9 QUESTION: You think that--what
10 youre saying--
11 ANSWER: --because I was on jobs
12 where we had skids of--of corrugated
13 transite--
14 QUESTION: Right. Im not--
15 ANSWER: --with a CertainTeed label
16 on it.
17 What does that mean?
18 QUESTION: It either means that
19 they--I dont know what it means if they
20 never manufactured or never sold it.
21 ANSWER: Well, I mean--
22 QUESTION: It means that maybe--
23 ANSWER: --they could have sold it
24 under a name.
25 QUESTION: --you have a faulty
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1 recollection.
2 MS. PLACITELLA: No, youre
3 harassing the witness. Thats his
4 testimony, Counselor. Next question,
5 please.
6 MR. EDELL: No, were not going to
7 get--were not going to get blown off this
8 that quickly. This is an important issue.
9 QUESTION: This testimony was 58
10 years ago, isnt that correct?
11 ANSWER: Yeah.
12 QUESTION: And youre tes--youre
13 testifying here today that your recollection
14 that--that you saw and used corrugated
15 transite board with CertainTeeds name on
16 it--
17 ANSWER: With a label on it, yes.
18 QUESTION: With--let me finish.
19 Youre absolutely certain of it even
20 in face of the fact that the corporation
21 will--will produce evidence that they never
22 manufactured the product, never sold the
23 product, never licensed their name to be
24 used on the product?
25 MS. PLACITELLA: Objection, youre
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1 assuming facts not in evidence.
2 MR. EDELL: Im--
3 MS. PLACITELLA: You have not
4 produced evidence--
5 MR. EDELL: Im--
6 MS. PLACITELLA: And I--
7 MR. EDELL: This is not trial. This
8 is only trial as to his testimony.
9 MS. PLACITELLA: Right. So hes
10 given his answer.
11 I object on the grounds of
12 mischaracterization of his testimony, I
13 object on the grounds that it assumes facts
14 not in evidence, and its already been asked
15 and answered.
16 MR. EDELL: No, it hasnt.
17 MS. PLACITELLA: Yes, it has, three
18 times now.
19 MR. EDELL: I want an answer to
20 question; otherwise, were going to call
21 Agatha. So lets call Agatha.
22 If you want to waste a day, well
23 waste a day.
24 MS. PLACITELLA: Why dont you
25 rephrase your question.
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1 MR. EDELL: No, Im not going to
2 rephrase it.
3 Could you read it back, please.
4 (The reporter reads the
5 following:
6 QUESTION: And youre tes--youre
7 testifying here today that your recollection
8 that--that you saw and used corrugated
9 transite board with CertainTeeds name on
10 it--
11 ANSWER: With a label on it, yes.
12 QUESTION: With--let me finish.
13 Youre absolutely certain of it
14 even in face of the fact that the
15 corporation will--will produce evidence that
16 they never manufactured the product, never
17 sold the product, never licensed their name
18 to be used on the product?)
19 QUESTION: Is that your testimony,
20 sir, under oath?
21 MS. PLACITELLA: Objection to the
22 question for the reasons I stated before.
23 MR. EDELL: I know.
24 MS. PLACITELLA: You can answer the
25 question.
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1 ANSWER: Yes.
2 QUESTION: That youre a hundred
3 percent sure 58 years later?
4 ANSWER: Yes, because--because of
5 the name...)
6 BY MR. PLACITELLA:
7 Q Mr. Blakinger, did you review that
8 testimony?
9 A I listened to it, yes.
10 Q You yourself swore under oath in
11 multiple cases in multiple jurisdictions that
12 CertainTeed in fact sold corrugated asbestos
13 cement board; did you not?
14 A That was my mistake, but I did.
15 Q And you did that for how many years,
16 sir?
17 A Probably two or three.
18 Q You did it from the 1990s--from the
19 time you got to CertainTeed, rather, through 2005;
20 did you not?
21 A No, because I think initially we
22 didnt even answer for asbestos cement board, and
23 when we did that, it was probably 2002 or 2003,
24 and when we wrote the attachment, Im the one
25 who--I was so used to, when representing National
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1 Gypsum, saying flat and corrugated siding.
2 So I put that phrase into the product
3 attachment without thinking, and then it stayed in
4 there for several years because we didnt have any
5 cases that ever involved corrugated siding, so we
6 had no reason to even look at that.
7 Q Well, what did you do, sir, to verify
8 your answer to that interrogatory before you swore
9 to it under oath?
10 A As I said, it was my mistake.
11 Q And you did that in how many
12 jurisdictions, sir?
13 How many times and how many
14 jurisdictions did you swear under oath that you
15 sold corrugated asbestos cement siding?
16 A Well, it was--again, it was just in
17 one of these product attachments which are
18 attached here, there was one phrase, one three
19 words in--in this attachment that said National
20 Gypsum and CertainTeed--there I go with National
21 Gypsum again--that CertainTeed sold flat and
22 corrugated asbestos cement siding, and there was
23 no basis for the and corrugated. That was--I
24 just put that in there. And then that attachment
25 would have been used in many, many, many
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1 interrogatory responses.
2 Q You swore under oath that you sold
3 asbestos corrugated cement siding in all 50
4 states; did you not?
5 A Probably not all.
6 Q All right. And you did that how many
7 times, sir?
8 A That attachment would have been used
9 many times.
10 Q All right. And in this case, sir,
11 Mr. Johnson said that he used corrugated asbestos
12 cement siding in the 19--in the mid-1950s.
13 Correct?
14 A Yes.
15 Q You do not have a single document in
16 your possession to disprove that testimony, do
17 you?
18 A Well, it would be impossible to prove
19 a negative with a single document. We have some
20 documents from the 50s. Every document we have
21 is consistent with us not selling that product.
22 Q Sir, what is the testimony?
23 Mr. Edell represented under--to my
24 client that he had proof, that at the time of
25 trial he was going to prove positive that he could
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1 not have worked with corrugated asbestos cement
2 siding sold by CertainTeed.
3 What is that proof?
4 A Well, it would be a number of
5 things. We look at--when you look at all of the
6 records, theres not a single mention of
7 corrugated siding. Flat sheets are mentioned.
8 Corrugated is never mentioned.
9 We have some purchase records from
10 the 50s that mention products purchased from
11 National Gypsum, individual purchases, and theres
12 siding shingles and theres flat sheets, but
13 theres no corrugated.
14 Q Thats it, sir?
15 A I believe that National Gypsum didnt
16 sell corrugated on a private-label basis to
17 anyone. I think it was just siding and flat
18 sheets, and it wasnt corrugated.
19 Q Thats the testimony youre going to
20 give under oath before a jury, sir, when I ask you
21 the question--
22 MR. EDELL: You asked for--
23 Q --what you believe?
24 MR. EDELL: You asked for
25 documentation. Hes going through
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1 documentation.
2 MR. PLACITELLA: No. I want to know
3 all the evidence.
4 You said--you, sir, Mr. Edell--
5 MR. EDELL: Slow down on this.
6 MR. PLACITELLA: --said under oath--
7 MR. EDELL: I didnt say anything
8 under oath.
9 MR. PLACITELLA: You represented to
10 my client that you never sold it and you had
11 the proof and that somehow my clients
12 recollection was faulty--
13 MR. EDELL: Thats correct.
14 MR. PLACITELLA: --and thats what I
15 want to know now.
16 MR. EDELL: Thats correct.
17 Q What evidence do you have?
18 You told me you have purchase
19 records.
20 What else?
21 A Purchase records and--
22 MR. EDELL: He identified other
23 documents also. But go ahead.
24 Q What else?
25 A We have--if you look at all the
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1 various documents we have just in general, that
2 corrugated is never mentioned, and flat sheets and
3 siding are mentioned.
4 My understanding from representing
5 National Gypsum for 20 years is that they didnt
6 sell corrugated on a private-label basis.
7 Q Well, wait a second. You answered
8 the interrogatories in almost 50 states under oath
9 based on the information you had from National
10 Gypsum.
11 Now youre taking all that back?
12 A It wasnt based on the information.
13 It was like a slip of the tongue.
14 Q A slip of the tongue--
15 A I assumed--
16 Q --in 50 states, sir--
17 A I assumed--
18 Q --under oath?
19 A Would you let me answer?
20 Q Okay.
21 A I was so used to saying flat and
22 corrugated. Its just a phrase. Thats how it
23 was described for National Gypsum. And I did
24 National Gypsums interrogatory answers for many
25 years, and I just threw that phrase in by mistake
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1 into the attachment.
2 Q And you did nothing to verify it
3 before you swore under oath in--when you
4 represented CertainTeed. Correct?
5 A Nothing to verify that we sold the
6 corrugated, no. In fact, there is nothing.
7 Q Sir, you dont have a single record
8 prior to 1960 that would refute Mr. Johnsons
9 testimony that he used corrugated asbestos siding
10 from CertainTeed, do you?
11 A Well, I think the purchase records I
12 just mentioned are some of those that are in the
13 50s.
14 Q Sir, did you not tell me before under
15 oath that you had no purchase records before
16 1959?
17 A You asked me about sales records.
18 You never asked about purchase records.
19 Q So you have purchase records.
20 A We have some. The ones I can recall
21 that we have are for the St. Louis plant, and
22 theyre ledgers, I guess you would call them,
23 purchase ledgers.
24 Q And how complete are they, sir?
25 A I think for the time periods that
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1 they cover, they appeared on their face to be
2 complete for those time periods.
3 Q What do they cover, sir? What time
4 periods?
5 A I cant recall exactly. I--I would
6 say they start in the 50s and go into the 60s.
7 Q When in the 50s, sir?
8 A I dont know.
9 Q Well, how would I find that out?
10 A Well, we could look. I just--I just
11 dont recall.
12 Q And the St. Louis plant would have
13 serviced New Jersey, sir?
14 A No.
15 Q Okay. So the records you have
16 related to the St. Louis plant wouldnt relate to
17 Mr. Johnsons testimony. True?
18 A Not directly. I think thats
19 correct.
20 Q All right. What records do you have
21 concerning plants that would have serviced New
22 Jersey as it relates to purchases of asbestos
23 cement siding?
24 A Again, I dont--I dont know if we
25 have those records for the York plant. I cant
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1 recall looking at them, so I--
2 Q Because you told me before that the
3 York plant was the plant that was responsible for
4 selling to the State of New Jersey. Correct?
5 A Yes.
6 Q So you have no records, purchase
7 records at all to contradict Mr. Johnsons
8 testimony that he used CertainTeed asbestos cement
9 corrugated siding. True?
10 MR. EDELL: He said he didnt
11 recall.
12 A I said I dont know what we have for
13 the York plant.
14 Q Well, how would I find that out?
15 A Well, we could look. You could ask
16 us, and we could find out. I just dont recall.
17 Q So you looked for St. Louis, but you
18 did not look for York.
19 A No. There was another case several
20 years ago that where the St. Louis records were
21 relevant, and I--thats--youre asking me now, and
22 I remember looking at those records for another
23 case.
24 Q Did you--
25 A This is several years ago.
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1 Q Did you make the York records
2 available to Mr. Edell so he had a basis to make
3 those representations to my client?
4 A I dont--first of all, I dont even
5 know if there are York records. I dont know what
6 was made available to Mr. Edell.
7 Q Well, since Mr. Edell told my client
8 this was a very important point, and I--I agree
9 with that, I want to make sure were all on the
10 same page.
11 When you got records from National
12 Gypsum concerning their sales to your clients,
13 none of them predated 1960. True?
14 A For the sales records, I think thats
15 true. And as I said, Im not sure if there were
16 some miscellaneous other records or not.
17 Q Your pricing sheets did not predate
18 1960. True?
19 A I believe thats right, or maybe
20 1959.
21 Q All right. You indicated that you
22 had no pricing sheets for asbestos cement board
23 that youve been able to locate before 1961 when
24 you testified in the Rao case.
25 Do you recall that?
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1 A I dont really recall. Its probably
2 correct.
3 Q Okay.
4 A I have looked at those records prior
5 to that deposition.
6 Q And you have no CertainTeed wallboard
7 records before 1973. True?
8 A For 73, I dont think thats true.
9 Q You have records for CertainTeed
10 wallboard before 73?
11 A Well, again, we have sales records I
12 believe for roofing for at least some plants that
13 go back to 1970.
14 Q So you have no--
15 A I think its no--no sales after
16 1973.
17 Q You have no sales records for the
18 time period that Mr. Johnson said that he used the
19 CertainTeed asbestos cement siding. True?
20 A Thats true.
21 Q Okay. You have no National Gypsum
22 records for the time period that Mr. Johnson said
23 that he used CertainTeed asbestos cement siding.
24 True?
25 A I think thats correct.
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1 Q You dont know whether you have any
2 York records related for the time period that Mr.
3 Johnson said he used asbestos cement siding.
4 True?
5 A True.
6 Q So, other than the York records,
7 which are, I guess, an open question, is there any
8 other evidence that youre aware of to support Mr.
9 Edells representation on the record to my client
10 that you had proof positive at the time of trial
11 that Mr. Johnson could not have used asbestos
12 corrugated siding by CertainTeed in the
13 mid-1950s?
14 MR. EDELL: Objection to the form of
15 the question.
16 A Well, again, when youre trying to
17 prove a negative. Its hard to have a piece of
18 evidence that is proof positive. But I believe
19 National Gypsum did not sell corrugated asbestos
20 cement board on a private-label basis.
21 Q And thats the sole proof that you
22 are going to present at the time of trial, your
23 testimony today that your belief today is they
24 never sold it at the time of trial, and thats the
25 proof positive that Mr. Johnson was cross-examined
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1 with.
2 Is that what youre telling us?
3 MR. EDELL: Thats not what he said.
4 A I dont know--
5 MR. EDELL: He can say whatever he
6 wants, but thats not--thats not correct.
7 A I dont know exactly what Mr. Edell
8 was referring to. You--youre asking me what
9 evidence Im aware of, and among--we have talked
10 about a bunch of things.
11 The fact that in various records,
12 corrugated is not mentioned, asbestos cement
13 siding is mentioned, asbestos cement board is
14 mentioned, that would be in annual reports or
15 similar kinds of documents. That would be another
16 piece of evidence.
17 By itself, none of these pieces of
18 evidence are proof positive. All it is is
19 basically looking at everything we have, theres
20 absolutely not--no shred of evidence that we ever
21 sold corrugated, and there is evidence--and there
22 are places where you would expect to see it
23 mentioned, and its not. So--
24 Q The only shred of evidence, sir, is
25 we have your sworn testimony under penalty of
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1 perjury in 50 states. True?
2 Thats the only evidence that we
3 have.
4 MR. EDELL: Objection to the form--
5 Q And we also have--
6 MR. EDELL: --of the question.
7 Q And we also have Mr. Johnsons
8 testimony, dont we?
9 MR. EDELL: Objection to the form of
10 the question.
11 A Ive explained that that was a
12 mistake--
13 MR. EDELL: Theres no question.
14 A --that I made--
15 MR. EDELL: Theres no question.
16 THE VIDEOGRAPHER: Off the video
17 record, Im sorry, at 12:59.
18 (Off the record.)
19 THE VIDEOGRAPHER: Back on the video
20 record at one oclock.
21 BY MR. PLACITELLA:
22 Q To be clear, as you sit here today,
23 you are aware of no records of CertainTeed that
24 exist prior to 1960 for the sale of asbestos
25 cement board, either corrugated or flat. True?
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1 MR. EDELL: Objection to the form of
2 the question.
3 Q For the State of New Jersey.
4 A For the State of New Jersey, theres
5 no sales records. I mean, there are references to
6 us selling asbestos cement siding or asbestos
7 cement flat sheets--
8 Q There are no sales records--
9 A --here and there in the past.
10 Q Heres my question. See if we can
11 answer it.
12 MR. EDELL: How are you defining
13 sales records, Mr. Placitella?
14 Q Do you know what I mean by sales
15 records?
16 MR. EDELL: Any documents that relate
17 to the possibility of sales?
18 Q Why dont you define sales records in
19 your parlance--
20 A Well, I think it--
21 Q --Mr. Blakinger.
22 A I would say it means invoices,
23 basically.
24 Q All right. Lets talk about the
25 evidence of sales of siding or roofing products
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1 that you have, the kinds of evidence that you
2 have.
3 You have invoices?
4 A Yes.
5 Q Okay. You have pricing sheets?
6 A Yes.
7 Q Okay. You have purchase records?
8 A Ledgers I described for St. Louis,
9 yes.
10 Q Ledgers for St. Louis.
11 But as you sit here, you dont know
12 what years they pertain to?
13 A I think the 50s and 60s--
14 Q Okay.
15 A --but I dont really know the exact
16 boundaries.
17 Q You have National Gypsum records?
18 A Some, yes.
19 Q Okay. From the Millington plant?
20 A Yes.
21 Q Okay. Now, the sale--anything else?
22 A Theres nothing else thats
23 specifically related to sales.
24 Q Okay.
25 A There are, you know, references in
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1 annual reports to, you know, describe the kind of
2 products that we were selling in general, in very
3 general terms.
4 Q Well--
5 A There might be some of those.
6 Q My--I looked at your attachments, and
7 I counted over 20 asbestos-containing products
8 that you offer for sale.
9 All of them arent referenced in your
10 annual reports, are they?
11 A Not all the specific products. But
12 it might mention like sell roofing cements--
13 Q Okay.
14 A --and then, in fact, on the products,
15 theres half a dozen of those.
16 Q Okay. Now, sales invoices, you have
17 no sales invoices for any roofing or siding
18 products prior to 1960. True?
19 A Thats true. I think, in fact, its
20 1970.
21 Q You have no pricing sheet--
22 A Im trying to help you out here.
23 Q Im--Im fine. Im just--Im just
24 interested in prior to 1960 for Mr. Johnson.
25 Okay?
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1 A Okay.
2 Q As to pricing sheets, you have no
3 pricing sheets for either roofing products or
4 siding products prior to 1960?
5 A I think thats correct.
6 Q Ledger sheets for St. Louis, we dont
7 know the exact years. Correct?
8 A Yeah. But Im sure they go back to
9 the 50s.
10 Q All right. But you dont know if
11 theres any ledger sheets for York?
12 A Thats correct.
13 Q All right. Where would those ledger
14 sheets be located, if they exist?
15 A If we ever found them, they would be
16 at Goodwin Procter.
17 Q Where? Where would I look?
18 A I--I think York sales records, it
19 would be--they would be identified as the York
20 plant. There wouldnt be very many boxes.
21 Q Do you know whether that was ever
22 produced or commissioned to be produced in the New
23 Jersey asbestos litigation?
24 A Im not sure what you mean.
25 Q Well, did anybody ever request the
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1 York records? Had you ever produced them?
2 A Well, weve made our documents
3 available to many, many plaintiffs attorneys all
4 over the place.
5 Q Has anybody ever copied
6 and--and--have you ever copied or made available,
7 sent copies out of the York records to anybody?
8 A I just--I dont recall if anyone has
9 ever selected those to be copied.
10 Q Do you know if Mr. Edell reviewed the
11 York records before cross-examining my client?
12 A I do not.
13 Q Would there be a record as to who
14 would actually have had access to those records
15 and when they looked at them?
16 A I dont know what kind of records are
17 kept of that, if anything.
18 Q Well, before someone is allowed to
19 look at your document repository, do you make them
20 sign in?
21 A I dont know. Goodwin Procter
22 handles that.
23 Q Okay.
24 A I dont know the details.
25 Q All right. Im going to put aside
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1 the open--we--we agree that the St. Louis records
2 do not pertain to sales in New Jersey. True?
3 A I think thats correct.
4 Q Okay. And then the last thing is
5 National Gypsum Millington plant, and am I correct
6 that you dont have any records related to the
7 National Gypsum Millington plant prior to 1959?
8 A Thats true.
9 Q Okay. So, I looked at all the
10 categories of records that youve supplied me.
11 And other than the open question of
12 the York plant, am I correct that you have no
13 records relating to sales other than what might be
14 in an annual report here or there prior to 1959
15 for roofing or siding products to the State of New
16 Jersey?
17 A I think thats correct.
18 Q Okay. So do you know, when Mr. Edell
19 made the representation to Mr. Johnson that he had
20 proof and that Mr. Johnson must be--have a faulty
21 recollection, do you know what that proof was?
22 A I do not.
23 Q Okay. Am I correct that CertainTeed
24 had the money and the resources to do whatever
25 testing was necessary to determine whether the
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1 installation or removal of its asbestos-containing
2 products posed a health hazard?
3 A Had the money or resources to do the
4 testing, sure.
5 Q Okay. Am I correct that CertainTeed
6 had the money and the resources to do the research
7 necessary to--to determine whether the
8 installation or removal of its asbestos-containing
9 products posed a health hazard?
10 A I dont--I dont think CertainTeed
11 was equipped to do medical research, but it had
12 resources to investigate the topic.
13 Q All right. Will you agree with me
14 that CertainTeed had the money and the resources
15 to do what was ever necessary to warn consumers
16 that the installation or removal of its
17 asbestos-containing products posed a health
18 hazard, if they in fact made that determination?
19 A Did they have the resources to
20 provide warnings if they wanted to, yes.
21 Q Okay. Am I correct that there is no
22 evidence that CertainTeed ever conducted a single
23 test on the asbestos-containing products it sold
24 to determine if the asbestos fibers were released
25 during the installation or removal of a
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1 CertainTeed asbestos-containing product?
2 A Well, you questioned Lloyd Ambler at
3 length about the EEH studies, which were not
4 conducted by CertainTeed, but were sponsored by
5 the trade association in which CertainTeed was
6 participating directly. So I would say that is
7 testing of a product.
8 Q But not your product.
9 Let me answer--let me ask my question
10 again, sir.
11 Am I correct that there is no
12 evidence that CertainTeed ever conducted a single
13 test on the asbestos-containing products that it
14 sold to determine if asbestos fibers were released
15 during the installation or removal of a
16 CertainTeed asbestos-containing product?
17 MR. EDELL: Objection to the form of
18 the question.
19 A Okay. Well, one issue youre raising
20 there is that the EEH test was a blind test, which
21 was on pipe of which the manufacturer was not
22 known. They intentionally did it as a blind
23 study. I would say that those tests in 1977 were
24 on CertainTeeds product because the products were
25 all very similar in formulation.
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1 And so it was a blind test. It may
2 have been, at least in part, CertainTeed product
3 or it may have been somebody elses product.
4 Q Sir, can you swear--
5 A But I think thats testing that--that
6 CertainTeed was involved with that was on its
7 product or--
8 Q That wasnt my question.
9 A --the same product.
10 Q Thats not my question.
11 As you sit here today, you cannot
12 swear under oath that the product that was tested
13 in 1977 was manufactured by CertainTeed, can you?
14 A I think thats true.
15 Q All right. So let me ask the
16 question again.
17 There is no evidence that CertainTeed
18 ever conducted a single test on the
19 asbestos-containing products it sold to determine
20 if asbestos fibers were released during the
21 installation or removal of a CertainTeed
22 asbestos-containing product?
23 A Well, I think its misleading to
24 completely exclude the EEH blind test, which was
25 tests on asbestos cement pipe. But given your
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1 point that we dont know for sure whose pipe that
2 was, then, with that qualification, its--what you
3 say is correct.
4 Q All right. So for the 20 other
5 asbestos products other than asbestos cement pipe,
6 it is true that, although CertainTeed had the
7 money and the resources to conduct tests, they
8 never conducted a single test to determine whether
9 asbestos fibers were released during the
10 installation or removal of those products. True?
11 A I think thats true.
12 Q Am I correct that there is no
13 evidence that CertainTeed ever warned a single
14 worker or consumer about the potential dangers of
15 asbestos associated with any of its
16 asbestos-containing products prior to 1977?
17 A Well, again with the exception of I
18 believe there was a warning in--in some
19 installation manual for sewer pipe, I believe you
20 discussed that at length with Mr. Ambler, I
21 believe that was in 1974, apart from that, Im not
22 aware of any other warnings--
23 Q Okay.
24 A --prior to 77.
25 Q Okay. There is no evidence other
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1 than a caution statement in 1974 in some handout
2 for asbestos cement pipe that CertainTeed ever
3 warned any consumer or any worker about the
4 dangers of asbestos potentially associated with
5 the asbestos-containing products that it sold.
6 True?
7 A Again, if you put aside workers in
8 our plants, who were told about hazards of
9 asbestos, but they werent using the products, and
10 I assume that was not encompassed in your
11 question, then I believe thats true.
12 Q All right. You did warn workers in
13 your plants. True?
14 A Yeah, we told workers in the plants
15 about hazards of asbestos, yes.
16 Q Including about mesothelioma?
17 A I dont know whether mesothelioma was
18 specifically mentioned or not.
19 Q All right. You were--they were told
20 to protect themselves or they could get sick.
21 Right?
22 A Well, they were aware. We were
23 taking lots of steps in the plants. Again, you
24 questioned Mr. Ambler at length about many of
25 these issues.
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1 Q I was trying not to repeat those
2 questions. You raised the issue.
3 Am I correct, despite the fact that
4 CertainTeed had both the money and the resources,
5 it never included a warning on any asbestos--on
6 any asbestos-containing product that it sold other
7 than asbestos cement pipe?
8 A I think thats right. Most of those
9 products would not have been hazardous.
10 Q Well, you dont know that because you
11 never tested them. Right?
12 A Well, roofing products, lots of
13 roofing products had been tested by others, and
14 theyre not hazardous. They dont create dust.
15 Q Did you, with all the money and the
16 resources that you have, ever conduct a single
17 test to make that determination?
18 A I dont think we conducted any
19 tests.
20 Q And in making--and, in fact, the
21 truth of the matter is that industry urged you to
22 put warnings on your products and that you
23 outright refused to do it. True?
24 A I dont think thats correct.
25 Q Okay. Your interrogatory answer
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1 B.19--
2 A Okay.
3 Q --that refers to warnings; does it
4 not?
5 A Yes.
6 Q And you say go look at the
7 attachments in the back. Correct?
8 A Go look at the one about pipe, yes.
9 Q All right. And the reason you--you
10 refer me to the one about pipe is because you
11 couldnt refer me to any other attachments because
12 there were no other--other warnings for any other
13 product you ever sold. Right?
14 A Well, we were trying to answer the
15 question. We referred you to the one that
16 discussed warnings.
17 Q Well, you didnt say, We didnt put
18 warnings on any other product, but we did put it
19 on asbestos cement pipe, go look at that. You
20 just referred me to pipe. Right?
21 A Yes.
22 Q Okay. You could have been more
23 forthcoming and said, We never put warnings on any
24 products except asbestos cement pipe and go see
25 Exhibit D. Correct?
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1 But you didnt do that.
2 MR. EDELL: Objection to the form of
3 the question.
4 Youre getting argumentative, and
5 youre raising your voice.
6 MR. PLACITELLA: Im not raising my
7 voice. This is the Italian in me.
8 MR. EDELL: Yes, you are.
9 MR. PLACITELLA: No, its not.
10 MR. EDELL: Well, if its the Italian
11 in you, then the Italian in you is raising
12 your voice.
13 MR. PLACITELLA: Well, you know, the
14 audio will reflect it appropriately.
15 MR. EDELL: Well, Im just talking--
16 MR. PLACITELLA: Okay.
17 MR. EDELL: --about whats happened
18 right here.
19 MR. PLACITELLA: Youre just
20 talking. You just keep talking.
21 Q Go ahead.
22 A Its pretty clear when the question
23 asked about did you put warnings on the products
24 and you referred to Attachment C, that we only put
25 warnings on that product.
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1 Q Actually, youre referring me to
2 Attachment D. Correct?
3 A No. I referred you to C.
4 Q C. And that--is that for the
5 asbestos cement products?
6 A No. Thats asbestos cement pipe.
7 Q Well, can I have that for a second,
8 please?
9 (The witness hands Mr. Placitella a
10 document.)
11 MR. PLACITELLA: Just give me a
12 second. I have to lower my voice for Mr.
13 Edell.
14 MR. EDELL: Yes, please.
15 MR. PLACITELLA: Thank you.
16 MR. EDELL: At least we know youre
17 getting near the end.
18 MR. PLACITELLA: No, Im not.
19 MR. EDELL: Oh, yes, you are.
20 MR. PLACITELLA: No, Im not.
21 MR. EDELL: Yes, you are.
22 MR. PLACITELLA: Okay.
23 THE WITNESS: Dont encourage him.
24 Q Asbestos cement--other asbestos
25 cement products are referred to in Attachment D.
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1 Correct?
2 A Correct.
3 Q You didnt refer me there. Correct?
4 A Thats correct.
5 Q Thats because what happened was that
6 when you were urged to put warnings on your
7 asbestos cement products by industry, you refused
8 to do it. But you didnt put that in your
9 interrogatory answers, did you?
10 MR. EDELL: Objection to the form of
11 the question.
12 A I dont think that happened, and we
13 didnt put it in our interrogatory answers.
14 Q You dont think it happened?
15 A No.
16 Q Okay.
17 (Long pause.)
18 MR. PLACITELLA: Could you mark these
19 consecutively for me, please.
20 (Minutes of the Health & Safety
21 Council/ACPA Annual Meeting dated 11/21/69,
22 14 pages, received and marked Exhibit P-5
23 for identification;
24 Health & Safety Council/ACPA
25 Recommended Practices for Fabricating,
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1 Handling and Applying Asbestos Cement
2 Products in the Building and Construction
3 Industries, 4 pages, received and marked
4 Exhibit P-6 for identification;
5 Minutes of the Seventh Meeting of
6 Health & Safety Council/ACPA dated 5/19/70,
7 3 pages, received and marked Exhibit P-7 for
8 identification;
9 Memorandum dated 3/3/69 to Davies, et
10 al., with attachment, 5 pages, received and
11 marked Exhibit P-8 for identification; and
12 Document entitled Recommended
13 Practices Booklet, dated 11/7/68, 9 pages,
14 received and marked Exhibit P-9 for
15 identification.)
16 THE REPORTER: Just for everybodys
17 edification, I have marked P-5 through P-9.
18 Im sure theyll be described subsequently.
19 BY MR. PLACITELLA:
20 Q Remember I asked you this morning
21 with respect to Interrogatory B.21. The question
22 was after 1964, did anyone ever recommend you put
23 a warning on any of your products, and you said to
24 me the answer would be no.
25 MR. EDELL: Objection to the form of
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1 the question.
2 Q Do you remember that?
3 MR. EDELL: Objection to the form of
4 the question.
5 The question didnt say did
6 anyone.
7 It says, Prior to 1964--
8 MR. PLACITELLA: It dealt--
9 MR. EDELL: --did any employee of
10 the defendant ever recommend... Theres a
11 big difference than anyone. Im sure
12 thats a mistake on your part.
13 MR. PLACITELLA: No, its not. Ill
14 get there.
15 MR. EDELL: You didnt misread it?
16 You intentionally misled us?
17 MR. PLACITELLA: Yeah, thats right.
18 I did exactly that.
19 MR. EDELL: I just want to make
20 sure.
21 MR. PLACITELLA: Okay.
22 Q Did anyone other than an employee
23 after 1964 tell you to put a warning on your
24 product that you then refused to do?
25 A Tell us to put a warning on the
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1 product?
2 I dont believe so.
3 Q Okay. Im going to show you whats
4 been marked here P-9 for identification which--and
5 ask if youve seen that before.
6 MR. EDELL: Let me see that.
7 A I have seen it before.
8 Q All right. And P-9 is something you
9 were familiar with both as an employee of
10 CertainTeed and as a lawyer for National Gypsum.
11 Correct?
12 A Yes.
13 Q Okay. And P-9 talks about a
14 Recommended Practice Booklet, and its dated
15 19--November 7, 1968. Correct?
16 A I believe so. I cant really read
17 the last digit of the year.
18 Q Right.
19 And it pertains to a meeting on
20 Recommended Practice Booklet for the Asbestos
21 Cement Products Association. Correct?
22 A Yes.
23 Q And you were a member of the Asbestos
24 Cement Products Association in November 1968; were
25 you not?
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1 A You know, I dont know. We went to
2 meetings and participated. I--I dont know
3 whether or not we were a member.
4 Q Well, you went to more than the
5 meetings. You had an employee who was on the
6 committee for drafting the book. Right?
7 A I think there was an employee on the
8 committee, yes.
9 Q Okay. Attached to the cover letter
10 is a booklet for handling and applying asbestos
11 cement products in construction. Correct?
12 A Yes.
13 Q I think Mr. Edell actually brought a
14 magnifying glass so you can use it.
15 THE WITNESS: You did.
16 MR. EDELL: Of course.
17 Q And--
18 MR. EDELL: You cant trust him to
19 represent as to what the content of this is
20 when he gives you those little things.
21 Q And this refers to things people need
22 to do to protect themselves when theyre working
23 with asbestos cement products. True?
24 A Thats the general subject of the
25 brochure.
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1 Q And it talks about housekeeping?
2 A Yes.
3 Q And what you do when you have to ship
4 the product and what you have to do when you have
5 to fabricate the product. Right?
6 A Yes.
7 Q Okay. And the respiratory equipment
8 that you should use when you work with asbestos
9 cement products. Correct?
10 A Well, if you needed respiratory
11 equipment, it identifies some approved suppliers
12 of respiratory equipment.
13 Q Okay. And do you see where--can you
14 go to page 5, where it talks about shipping and
15 handling.
16 A Okay.
17 Q It talks about under normal
18 conditions, theres no hazard. Right?
19 Do you see that?
20 A Yes.
21 Q And it talks about siding. Correct?
22 A Well, it lists a number of types of
23 products, yes.
24 Q Okay. It talks about asbestos
25 siding. Right?
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1 A Im not sure exactly where youre
2 reading.
3 Q Okay. Does it talk about flat and
4 corrugated asbestos sheets?
5 A Yes.
6 Q Does it talk about asbestos cement
7 pipe?
8 A Its mentioned in the first
9 paragraph.
10 Q All right. And it says, When
11 handling individual pieces of flat and corrugated
12 asbestos sheets, care should be taken when placing
13 one sheet on top of the other to avoid creating
14 dust and breakage.
15 Do you see that?
16 A Yes.
17 Q Okay. In 1968, after this meeting
18 took place, did CertainTeed warn any consumer or
19 worker about the dangers or potential dangers
20 associated with handling or fabricating asbestos
21 cement products?
22 MR. EDELL: I just want to make sure
23 were clear.
24 Theres no recommendation here that
25 they place any such warning on their
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1 products--
2 MR. PLACITELLA: Im--
3 MR. EDELL: --and that was the whole
4 line of questioning there was.
5 MR. PLACITELLA: I was going to get
6 there. That wasnt my question, Mr. Edell.
7 So--
8 MR. EDELL: I just want to make sure
9 that--
10 MR. PLACITELLA: Are you done
11 testifying?
12 MR. EDELL: Yes, Im finished.
13 MR. PLACITELLA: Okay. Thank you.
14 Could you read my question back,
15 please.
16 (The reporter reads the following:
17 QUESTION: In 1968, after this
18 meeting took place, did CertainTeed warn any
19 consumer or worker about the dangers or
20 potential dangers associated with handling
21 or fabricating asbestos cement products?)
22 A I dont believe CertainTeed
23 warned--provided warnings with those products.
24 Q Okay.
25 THE REPORTER: I dont believe...
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1 THE WITNESS: I dont believe
2 CertainTeed provided warnings with those
3 products.
4 Q And did CertainTeed ever distribute
5 this proposed booklet in 1968 in connection with
6 any of the asbestos cement products that it was
7 selling?
8 A I dont believe so. I dont believe
9 the booklet got finalized until 1970.
10 Q Did Cert--did CertainTeed take the
11 booket--booklet internally, modify it in any way,
12 and determine they were going to send--send it out
13 on their own in 1968?
14 A I dont believe so.
15 Q Okay. Im going to show you whats
16 been marked P-8 for identification and ask if
17 youve seen this before.
18 A Yes.
19 Q And this is a March 3rd, 1969, memo
20 from the lawyers at Davies, Hardy, Loeb, Austin &
21 Ives in New York. Correct?
22 A Yes.
23 Q And its to a bunch of people,
24 including a Mr. McNabb, a Mr. Davis and a Mr.
25 Alpine, who at the time were executives at
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1 CertainTeed. Correct?
2 A They were with CertainTeed. I dont
3 know exactly their positions.
4 Q Okay. And attached are the minutes
5 of a meeting of the Health & Safety Council of the
6 Asbestos Cement Products Association for 1969.
7 Do you see that?
8 A Yes. Or at least a portion of those
9 minutes.
10 Q And it says that Mr. McNabb attended
11 that meeting. Correct?
12 A Yes.
13 Q All right. And it goes to page 2,
14 please. And hear it talks about what was
15 discussed at the meeting. True?
16 A Well, not just on page 2, but yes.
17 Q The whole memo.
18 A Yeah.
19 Q Okay. And one of the things it
20 discusses on page 2 is the fact that the
21 Asbestosis Research Council in England already had
22 a practice booklet for handling asbestos that they
23 were distributing. Correct?
24 A That they had some booklets, yes.
25 Q And that pertained to asbestos cement
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1 products used in building and construction. True?
2 A One of them did.
3 Q All right. And Mr. Scheckler, who
4 worked for Johns-Manville--you know that.
5 Correct?
6 A Yes.
7 Q --he reported that no progress had
8 been made on the Asbestos Cement Products
9 Association own manual--own manual since they
10 started. True?
11 A Yes.
12 Q Okay. And on the next page--well,
13 scratch that.
14 He also--he also discusses and tells
15 the members that Manville was lowering what it
16 considered to be safe for exposure to asbestos
17 from five million particles per cubic foot down to
18 one million particles. Correct?
19 A Well, he said Johns-Manvilles goal
20 was one million particles per cubic foot.
21 Q Okay. And he also indicates, does he
22 not, the bottom of page 2, the top of page 3, that
23 the respirators that are currently being used
24 dont really protect against asbestos. Correct?
25 A Well, he says new types of
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1 respirators are needed because they may not be
2 satisfactory for asbestos fibers.
3 Q All right. And then he talks about
4 who was on the subcommittee for putting together
5 the rec--the recommended health and safety
6 practices for handling asbestos cement products.
7 Correct?
8 A Yes.
9 Q And that one of them is Mr. Alpine.
10 Correct?
11 A Yes.
12 Q And he worked for CertainTeed.
13 Correct?
14 A Yes.
15 Q Do we now know that people for
16 CertainTeed were involved in determining whether
17 warnings should go on products other than you
18 testified to before?
19 MR. EDELL: Objection to the form of
20 the question.
21 Theres no discussion here as to
22 whether warnings should go on products.
23 A That was going to be my answer, that
24 this has to do with a warning booklet, not
25 warnings on products.
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1 Q Okay. So you agree with Mr. Edells
2 testimony?
3 MR. EDELL: My objection, yes.
4 A Yeah. I--
5 MR. PLACITELLA: I didnt know that--
6 MR. EDELL: Insightful as it was.
7 MR. PLACITELLA: I wasnt sure that
8 that objection was allowed under the rules,
9 so I figured you were testifying.
10 MR. EDELL: I was objecting to the
11 form.
12 MR. PLACITELLA: Oh, okay.
13 Q Now, can you go to page 4, please.
14 Do you see where it says Dr. Wright
15 came before the members of the Asbestos Cement
16 Products Association?
17 A Yes.
18 Q And he made a presentation to them?
19 A Yes.
20 Q And that included people at
21 CertainTeed?
22 A Yes.
23 Q Okay. And what Dr. Wright said was
24 that studies should be done on asbestos cement
25 products to determine how much asbestos was
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1 released.
2 Do you see that?
3 A I dont really see that.
4 Q See on the bottom where it says--see
5 where it says Dr. Wright?
6 A Where are you on page 4?
7 Q Im talking about the second
8 paragraph from the top.
9 A The second paragraph--
10 Q From the bottom. Sorry.
11 A From the bottom, okay.
12 Q He said--He stated that although
13 studies had been made on the biological effects of
14 asbestos fiber when such fiber is not bonded,
15 (i.e., textile, milling mining and insulation
16 operations) examination and study of the effects
17 of such fiber when incorporated into asbestos
18 cement products would appear to be warranted,
19 considering the volume of asbestos used in these
20 products.
21 Do you see that?
22 A Yes, thats correct. Thats what he
23 says.
24 Q All right. So he says that studies
25 should be done to determine what the health
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1 hazards are associated with asbestos cement
2 products, in essence. Correct?
3 A Or if there are any, yes.
4 Q All right. And tell me what studies
5 you did at CertainTeed in response to Mr.
6 Wright--Dr. Wrights urging, given the fact that
7 you had both the money and the resources to do any
8 testing that was necessary.
9 A Im not sure we did any studies. I
10 believe National Gypsum, I cant remember who was
11 the researcher that they hired, he was doing a
12 study of asbestos cement at National Gypsum and a
13 Johns-Manville plant in New Orleans. I think
14 thats the main research that was being done at
15 that time.
16 Q And you were made privy at
17 CertainTeed to all of that research, sir?
18 A I dont know.
19 Q Okay. My question to you, sir, is as
20 follows: Dr. Wright was an advisor to CertainTeed
21 as a member of the Asbestos Cement Products
22 Association. True?
23 MR. EDELL: Objection to the form of
24 the question.
25 A Well, I dont think so. I think he
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1 made a presentation at this one meeting. I dont
2 think he had a connection to the Asbestos Cement
3 Products Association.
4 Q Did Dr. Wright ever testify on behalf
5 of CertainTeed, sir, in litigation?
6 A I dont know.
7 Q Did Dr. Wright ever represent
8 CertainTeed, sir, before any governmental body?
9 A Again, I dont know.
10 Q Did Dr. Wright represent CertainTeed
11 as part of the Asbestos Cement Products
12 Association before any governmental body?
13 A I doubt it, because I dont think the
14 Asbestos Cement Products Association got involved
15 in that.
16 Q Did Dr. Wright represent CertainTeed
17 as a member of the Asbestos Information
18 Association of North America before a governmental
19 body?
20 A I dont know.
21 Q Dr. Wright, who made this
22 presentation, urged that a study be done.
23 Correct?
24 A Well, yes. He said such a study
25 would appear to be warranted--
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1 Q Okay.
2 A --to use his words.
3 Q And despite the fact that CertainTeed
4 had both the money and the resources, no study was
5 done by CertainTeed ever as it related to anything
6 other than asbestos cement pipe. True?
7 A Right, thats correct.
8 Q The--after the meeting of February
9 18, 1969, did CertainTeed take any steps to warn
10 users of any asbestos cement products, of the
11 dangers potentially associated with the use of
12 those products?
13 A I dont believe CertainTeed gave any
14 warnings with asbestos cement products. I dont
15 really believe there was any hazard associated
16 with the products that CertainTeed was selling.
17 Q Well, you never did the test that Dr.
18 Wright asked you to do to make that determination,
19 did you?
20 A As I just said, I dont believe we
21 did any tests, thats correct.
22 Q So he told you to do a test, you
23 didnt do it, and then you made the decision on
24 your own not to warn, even though you were
25 discussing warnings at the very same time. True?
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1 A I dont believe we were discussing
2 warnings directly. We were discussing a brochure.
3 Q Well, the brochure, sir, wasnt the
4 intent of the brochure to provide warnings or
5 information to people who were using your product
6 to tell them how to protect themselves?
7 A Well, it was really intended to
8 provide information to people who were fabricating
9 asbestos cement sheets. That was really the point
10 of that brochure.
11 Q And how do you know that?
12 A Well, from talking to Frank
13 Zimmerman.
14 Q Okay. And when you say fabricating,
15 you mean people that are cutting them?
16 A Well, asbestos cement board was
17 sometimes sold to companies or customers, who
18 would then make it into other products, and
19 they--it would be more like a plant kind of a
20 use. They would be doing cutting, cutting,
21 cutting all day long. And that was really the
22 goal of those booklets. Thats certainly how
23 National Gypsum interpreted it, and thats who
24 they sent the brochure to when it was finished.
25 Q Who did CertainTeed send the brochure
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1 to when it was finished?
2 A I dont know if it was sent to
3 anyone. I dont know.
4 Q The truth of the matter, sir, is
5 while National Gypsum might have sent it out,
6 CertainTeed never did. True?
7 A We werent making that product. We
8 were getting it from National Gypsum. So if they
9 sent it out, it would have been sent to us,
10 probably. I dont know.
11 Q And you were selling the product
12 then. Right?
13 A You know, by 1970, probably very
14 little asbestos cement board, but some. There
15 were probably some, some minor sales.
16 Q And when you sold the products, did
17 you pass the brochure on to your customers, sir?
18 A I dont know one way or the other.
19 Q You have no proof as you sit here
20 today, sir, that when you got the information, you
21 passed it on to your customers, do you?
22 A I think I dont have any information
23 one way or the other on that topic.
24 Q Right. And that brochure just
25 doesnt talk about people cutting products. It
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1 talks about people who actually might drill holes
2 into the product. Right?
3 A I think thats included. But the
4 intent of the booklet was where there was repeated
5 cutting for fabricators.
6 Q Well, they have a whole section in
7 here for people who were just in the shipping area
8 handling the product, not cutting the product.
9 Correct?
10 A Well, thats mentioned, yes.
11 Q Right. And theres a whole page on
12 what you do to protect the people who just handle
13 the product, not cut the product. Right?
14 A I dont know if its about
15 protecting. Its talking about good handling
16 methods.
17 Q Well, it says dont let one piece of
18 material friction up against the other because it
19 could release asbestos. Right?
20 A I dont think it really says that
21 anywhere.
22 Q Okay.
23 A But maybe youre right.
24 Q Okay. And it also talks about what
25 kind of housekeeping you should use when youre
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1 handling the product. Right?
2 A Right. And it talks about, you know,
3 try not to break the product.
4 Q Right. And it talks about people
5 should wear respirators. Right?
6 MR. EDELL: Objection to the form of
7 the question.
8 A I think only if you were doing
9 something that was releasing a lot of dust, then
10 maybe you should wear a respirator--
11 Q Okay.
12 A --and then it gives you some
13 information about respirators.
14 Q All right. So--so were clear, after
15 the March 3rd, 19--after the March--lets get this
16 correct.
17 After the February 18th, 1969
18 meeting, where Dr. Wright made his presentation
19 and the brochure was discussed, CertainTeed took
20 no steps to distribute that brochure or any form
21 of that brochure to any customer. True?
22 A Im not aware of any.
23 Q Im going to show you whats been
24 marked P-5.
25 Have you ever seen that before?
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1 A Im sure I have.
2 Q Now, this is a December 10, 1969,
3 letter entitled Memorandum to Principals,
4 Representatives and Guests Attending Health &
5 Safety Council meeting--Asbestos Cement Products
6 Association Annual Meeting November 21, 1969.
7 Correct?
8 A Yes.
9 Q Okay. So from November--from
10 February, when they last met, until November, can
11 you tell me what, if any, actions were taken by
12 CertainTeed to relay the information in the health
13 and safety--in the recommended practice brochure
14 to consumers?
15 A I dont know of any.
16 Q Okay. Now, the minutes of the annual
17 meeting on November 21, 1969, are attached.
18 Correct?
19 A Yes.
20 Q And you have representatives there of
21 CertainTeed. Correct?
22 A One. Yes.
23 Q Well, is that to diminish the
24 importance of him being there, because theres
25 only one?
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1 A No. You said representatives,
2 plural--
3 Q Okay.
4 A --and so--
5 Q Thats fair.
6 And Flintkote?
7 A Flintkote had two people there, yes.
8 Q GAF had people there?
9 A Yes.
10 Q Johns-Manville had people there?
11 A Yes.
12 Q National Gypsum had people there?
13 A Yes.
14 Q Supradur had people there?
15 A Yes.
16 Q U.S. Gypsum had people there?
17 A Yes.
18 Q And even somebody from the Institute
19 on Occupational Safety & Health. Correct?
20 A Yes.
21 Q And your lawyer?
22 A The groups lawyer, I guess.
23 Q Right.
24 A I dont know who that is.
25 Q And the minutes reflect that a
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1 presentation was made by a Mr. Ball to the group.
2 Correct?
3 Page 2.
4 A Yes.
5 Q And Mr. Ball was vice president and
6 general counsel for Johns-Manville.
7 A Thats what it says, yes.
8 Q And what he did is he delivered an
9 address to the entire group on product liability.
10 A Thats what this says.
11 Q All right. And he indi--and he
12 talked about what kind of people were likely to
13 sue the members for the asbestos cement products
14 that they were selling. True?
15 A Yes.
16 Q And he--and he actually classifies
17 the potential people who could get hurt and sue
18 into various classes. Right?
19 A Yes.
20 Q By the way, his classifications
21 turned out to be correct, as history shows.
22 Right?
23 MR. EDELL: Objection to the form of
24 the question.
25 A Im not sure what that means
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1 exactly.
2 Q All right. Well go back to it.
3 He says the first class of people are
4 the people who work with the product day to day.
5 Right?
6 A Yes.
7 Q He doesnt say people just in the
8 plant. He says people who work with asbestos
9 cement products. Right?
10 A Yes.
11 Q And you were selling asbestos cement
12 products then, werent you?
13 A Yes, some.
14 Q Okay. And he says that this includes
15 people who handle the product. Right?
16 A Well, Im not sure. Handling is
17 included in one of the things youre doing.
18 Q Right. Handling is one thing.
19 Right?
20 A Nailing.
21 Q Correct.
22 Sawing. Correct?
23 A Yeah. Those are mentioned, yes.
24 Q Nailing. Correct?
25 A Yes.
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1 Q Because these times of--types of
2 activities will liberate asbestos into the
3 atmosphere. Right?
4 A Some of them would.
5 Q And he says as a result, you would
6 have to make sure you use proper housekeeping to
7 protect people. Correct?
8 A Yes.
9 Q Then he says theres another class, a
10 second class of plaintiffs. Thats the so-called
11 neighborhood plaintiffs. Right?
12 A Yes, thats what he says.
13 Q Those are people who live near the
14 plant where the products are being made.
15 A Near a plant that emits fibers into
16 the air, yes.
17 Q Right. Well, you--you operated a
18 plant here in Pennsylvania that emitted fibers
19 into the air, didnt you?
20 A Probably some.
21 Q Right. In fact, it became a
22 Superfund site at some point in time because of
23 the amount of fibers you put into the
24 environment. True?
25 MR. EDELL: Objection to the form of
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1 the question.
2 A Well, the plant didnt. The--the
3 dump site did.
4 Q So certainly this would apply--this
5 statement would apply to your plant in terms of
6 the fact that you were emitting asbestos fibers
7 into the atmosphere here in Pennsylvania.
8 MR. EDELL: Objection to the form of
9 the question.
10 A Well, I dont really know. I dont
11 have enough facts. I dont know how much, if any,
12 fiber we were emitting into the air.
13 Q Well, you looked at Mr. Amblers
14 deposition where I went through all that with
15 him?
16 MR. EDELL: And you said you were
17 wrong, and you withdrew that question.
18 MR. PLACITELLA: Oh, is that right?
19 Are you testifying again?
20 MR. EDELL: No. Im recounting what
21 occurred.
22 MR. PLACITELLA: I have it all here.
23 Shall we do it?
24 MR. EDELL: Its up to you.
25 MR. PLACITELLA: Okay. Lets
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1 just--lets go next.
2 Q The next class of plaintiffs are
3 people who would use the product just from time to
4 time. Correct?
5 A Yes.
6 Q And that would include consumers.
7 Right?
8 A It could in some instances, I
9 suppose, yes.
10 Q Okay. And you--you were the lawyer
11 for National Gypsum. You knew what kind of cases
12 were being brought in the 1980s. Correct?
13 A Yeah.
14 Q And youre now the in-house counsel
15 for CertainTeed. Correct?
16 A Yes.
17 Q And people are now bringing cases for
18 mesothelioma who handled the product on a regular
19 basis. Correct?
20 A Who handled it on a regular basis?
21 Q Right.
22 A Im not sure what you mean by
23 handled. But who worked with the products, yes.
24 Q And people who are consumers, who use
25 it from time to time, they have now sued you,
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1 claiming that your product created mesothelioma.
2 True?
3 MR. EDELL: Im going to object to
4 the form of the question.
5 The document and the examination is
6 premised upon Mr. Balls statement. Mr.
7 Ball specifically said that his remarks--Mr.
8 Ball further restricted his remarks to
9 damage arising from asbestosis. He
10 specific--specifically excluded coverage of
11 bronchogenic carc--cancer and mesothelioma.
12 MR. PLACITELLA: He did that because
13 he said that one theory maintains that the
14 inhalation of one fiber could cause the
15 disease.
16 MR. EDELL: All Im saying is that--
17 MR. PLACITELLA: So is that your
18 testimony, sir?
19 MR. EDELL: --he excluded it.
20 So I dont think its fair that now
21 we bring up--
22 MR. PLACITELLA: Okay.
23 MR. EDELL: --mesothelioma in the
24 context of Mr. Balls discussion, when he
25 further--when he specifically excluded it
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1 from his presentation.
2 MR. PLACITELLA: Okay.
3 Q Mr. Blakinger, is it your
4 understanding that it takes more or less exposure
5 to get mesothelioma than asbestosis?
6 A Its generally recognized that its
7 less.
8 Q So if there was enough exposure to
9 cause asbestosis, there certainly would be enough
10 exposure to cause mesothelioma. True?
11 MR. EDELL: Objection to the form of
12 the question.
13 A Well, to have a risk of mesothelioma,
14 mesothelioma is very rare, but, yes.
15 Q CertainTeed--so Mr. Balls
16 predictions back in 1969 as to who was going to
17 get sick if they werent warned turned out to be
18 true.
19 MR. EDELL: Objection--
20 Q Correct?
21 MR. EDELL: --to the form of the
22 question.
23 He didnt say who was going to get
24 sick. He said who was going to sue.
25 Q Who was diagnosed and would sue.
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1 A Hes certainly correct about who
2 would sue.
3 Q Okay. And youve now been sued by
4 people who applied the product. Correct?
5 A Yes.
6 Q Youve been sued by people who live
7 in the vicinity of your plants?
8 A A few, yes.
9 Q And youve been sued by people who
10 have purchased your product as a consumer?
11 A Yes.
12 Q Okay.
13 A Weve been sued by people who never
14 used our product at all.
15 Q All right.
16 A They still sued us.
17 Q Mr. Ball recognize--recommends, does
18 he not, that, at a minimum, a warning should be
19 placed upon the packaging of all products.
20 Correct?
21 MR. EDELL: Where?
22 Q Does he say that, sir?
23 Page 5.
24 A You have to show me where.
25 Okay. What was your question?
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1 Q Second full paragraph.
2 Remember when I asked you questions
3 before about whether anybody ever made a
4 recommendation to CertainTeed about whether
5 warnings should be put on products, and you said
6 that never happened?
7 Do you remember that, sir?
8 Do you recall that testimony?
9 A Yes.
10 Q And here Mr. Ball says, he
11 recommended that to minimize the risks to
12 manufacturers, the following things should be
13 done. First, a warning should be placed upon the
14 packaging of all products that are presently
15 suspect. The warning should state that there may
16 be a health hazard and that proper precautionary
17 procedure such as the wearing of respirators
18 should be followed. Correct?
19 A Thats what he said.
20 Q All right. And he says, The warning
21 should be limited to dangers inherent in the
22 day-to-day handling and installing of the
23 products. Correct?
24 A Yes.
25 Q And what hes referring to is
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1 asbestos cement products. Correct?
2 A Not necessarily, since he talks
3 before about insulation products. So its not
4 that clear.
5 Q But hes there to talk to you about
6 asbestos cement products, not about insulation
7 products. Right?
8 A I assume thats true.
9 Q All right. And he said--and he also
10 said that you should distribute the pamphlet on
11 the safe operating and housekeeping procedures.
12 Correct?
13 Do you see that?
14 The next paragraph down.
15 A Yes.
16 Q And it says, These pamphlets should
17 be distributed to contractors and to the unions
18 for distribution to the workers.
19 Do you see that?
20 A Yes.
21 Q And this was in December 1969.
22 Correct?
23 A Yes.
24 Q Am I correct that despite Mr. Balls
25 recommendations and the urgings of Dr. Wright in
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1 1969, CertainTeed put no warnings and distributed
2 no pamphlets to consumers of their products,
3 asbestos cement products?
4 MR. EDELL: Objection to the form of
5 the question.
6 Q True?
7 A I believe thats correct. We did not
8 distribute any warnings.
9 Q And you didnt distribute the booklet
10 either, did you?
11 A As far as I know, thats correct.
12 Q And you didnt put any warnings on
13 the products even though the lawyer who was there
14 to rep--to advise you told you that thats what
15 you should do.
16 MR. EDELL: Objection to the form of
17 the question.
18 A To avoid lawsuits, we should put
19 warnings on the products.
20 Q Right.
21 A That was the gist of his message.
22 Q Right. But you didnt do it.
23 A I believe we did not.
24 MR. PLACITELLA: Okay. Well take a
25 break.
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1 THE VIDEOGRAPHER: Off the video
2 record at 1:59 p.m.
3 (A short recess was taken.)
4 THE VIDEOGRAPHER: Back on the video
5 record at 2:10 p.m.
6 BY MR. PLACITELLA:
7 Q Im going to show you whats been
8 marked P-7 for identification.
9 Have you ever seen this document
10 before?
11 A Yes.
12 Q Okay. This document is Minutes of
13 the Seventh Meeting of the Health & Safety Council
14 for the Asbestos Cement Products Association.
15 Correct?
16 A Thats what it says, yes.
17 Q May 19th, 1970.
18 A Yes.
19 Q More than two years after the subject
20 was first discussed about distributing a pamphlet
21 to users of asbestos cement products by this
22 organization. True?
23 A I dont--youre probably right. I
24 dont remember when in 1968 the first meeting
25 was.
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1 Q Okay. And it indicates that a vote
2 was taken about whether to distribute the pamphlet
3 or not. Correct?
4 MR. EDELL: Could you facilitate our
5 reference point about where--
6 MR. PLACITELLA: Sure. Absolutely.
7 MR. EDELL: Where? Where in the
8 document?
9 A There were votes on some amendments.
10 MR. EDELL: I dont think there was a
11 vote on the--I dont want to testify, but I
12 dont think there was the kind of vote--
13 THE WITNESS: Oh, yes.
14 MR. EDELL: --that you just
15 suggested.
16 MR. PLACITELLA: I think if you let
17 the witness testify, hed probably do
18 better.
19 MR. EDELL: Okay.
20 MR. PLACITELLA: Okay.
21 Q So--
22 A What was the question again exactly?
23 Q The question was, a vote was
24 ultimately taken about whether this booklet should
25 be distributed. Correct?
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1 A Yes.
2 Q And that vote--vote was participated
3 in by Mr. Alpine from CertainTeed. True?
4 A Yes.
5 Q Okay. And ultimately the vote was
6 taken and unanimously passed. Correct?
7 A Yes.
8 Q That being that the booklet should be
9 distributed. Correct?
10 A Yes.
11 Q Okay. So after the vote was taken
12 that the--the book--
13 MR. EDELL: I apologize.
14 MR. PLACITELLA: Your testimony is
15 corrected.
16 Q After the vote was taken, which the
17 CertainTeed executive participated in, am I
18 correct that CertainTeed never distributed this
19 booklet to a single customer?
20 A As I said--I believe thats correct.
21 As I said before, I believe this booklet, as
22 finally approved, was intended for fabricators,
23 and I dont believe CertainTeed marketed its
24 products to fabricators.
25 Q Well, thats your interpretation.
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1 Correct?
2 A Well, thats my understanding, yes.
3 Q You got that from speaking to
4 somebody else at National Gypsum. Correct?
5 A Yes.
6 Q And you understand that under the
7 rules, thats hearsay, correct, as a lawyer?
8 A That would be hearsay, yes, thats
9 true.
10 Q Okay. So from your own information,
11 you have no information to indicate that this was
12 only for fabricators.
13 A What do you mean from my own
14 information?
15 I have the information I have--
16 Q All right. Did you see--
17 A --from having talked to National
18 Gypsum people.
19 Q Oh, okay. Did you talk to any
20 CertainTeed people?
21 A About this booklet, I dont think
22 anyone had any knowledge about this organization
23 at all--
24 Q Okay.
25 A --that we could--that we could find.
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1 Q Well, who did you--
2 A I mean, Mr. Alpine is not around
3 and--
4 Q Who did you try to talk to about this
5 booklet?
6 A I dont think we could find anyone,
7 as I said, who knew anything about the booklet.
8 Q Well, what--
9 A The people whose names come up in the
10 documents are not around.
11 Q Tell me what documents are located
12 within CertainTeeds business records to support
13 your theory that this was only for fabricators.
14 A I dont think we have any documents
15 about this booklet at all in our business
16 records.
17 Q All right. So your sole basis for
18 this was for fabricators was from a discussion
19 from an executive at National Gypsum when you were
20 their lawyer. Right?
21 A And probably from some documents.
22 There may be some other documents that National
23 Gypsum had. I dont know what all went into
24 forming my understanding.
25 Q You had somebody there voting on
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1 this. Right?
2 A You--you mean CertainTeed?
3 Q Right.
4 A Yes.
5 Q It was important enough to be there.
6 Correct?
7 A It appears that a CertainTeed person
8 went and--
9 Q And he was on the actual committee
10 that drafted the booklet?
11 A That appears to be the case.
12 Q All right. And the booklet pertained
13 to protecting people who handled the products.
14 Right?
15 A Well, it--I forget what the title
16 was. It had handled something it fabricated. But
17 I believe there was lots of discussion about who
18 was this booklet really intended for.
19 Q Where was that discussion?
20 Whats the basis for that statement?
21 A Some of these documents and--and
22 conversations with Frank Zimmerman and Al Fay at
23 National Gypsum.
24 Q Okay. The document itself indicates,
25 does it not, that there was a potential hazard to
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1 people who simply handle asbestos cement
2 products. True?
3 A I dont think it really indicates
4 that. Youll have to show me where.
5 Q Go back to the very first draft from
6 1968, November.
7 A Okay.
8 Q See that?
9 MR. EDELL: Are you looking at two
10 different documents?
11 Is that the final or--
12 MR. PLACITELLA: Im going to the
13 very first draft.
14 A The first draft.
15 Q Im going to start with the very
16 first draft.
17 A Okay. I think thats this one.
18 Q It talks about hazards to shipping,
19 people shipping the product. Right?
20 A Where--where does it say that?
21 Q Page 5.
22 A Where does it really say theres a
23 hazard to people shipping?
24 Q Well, it says that they should be
25 protected. Right?
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1 A (No response.)
2 Q For the record, Ill--it says, When
3 handling individual pieces of flat and corrugated
4 asbestos sheets, care should be taken when placing
5 one sheet on top of the other to avoid creating
6 dust and breakage.
7 Do you see that?
8 A Yes.
9 Q And why do avoid--why do you want to
10 avoid creating dust?
11 A Its good to minimize dust when
12 working with asbestos products. But I dont think
13 this is--
14 Q Okay.
15 A --rally saying that theres
16 necessarily a hazard--
17 Q Okay.
18 A --when youre handling a product.
19 Q It also talks about people who cut,
20 drill and saw the product and that they should be
21 protected. Correct?
22 On the next page.
23 A Its hard to read.
24 Yes.
25 Q All right. And, by the way, the
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1 section on shipping, people are handling the--just
2 handling the product, that was removed from the
3 final version, wasnt it?
4 A Long ago we probably did a detailed
5 comparison at National Gypsum, but I dont--I
6 dont know.
7 Q Okay. Ill withdraw that question,
8 because Im not certain that thats the case.
9 After this vote was taken, what
10 information was relayed to the consumers about the
11 handling of asbestos cement products?
12 A Im not aware of CertainTeed issuing
13 any warnings. CertainTeed did not perceive any
14 hazard with those products.
15 Q Well, did you ever test to determine
16 if there was a hazard?
17 A We did not do any testing. Weve
18 already covered that.
19 Q Right. But--so you made the
20 determination, even though a doctor came to your
21 meeting, told you to do the test, and you had the
22 money and resources to do it, you made the
23 determination not to place on a warning because
24 you determined on your own there was no hazard.
25 Right?
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1 A Well, I think the industry was doing
2 some of the research that Dr. Wright had suggested
3 be done.
4 Q Well, CertainTeed didnt know what
5 was going on with the research, did they?
6 A I think they probably had, through
7 trade associations, they had lots of information
8 about what was going on.
9 Q Well, what information can you tell
10 me about as you sit here?
11 A As I sit here, I cant rattle it
12 off. Id have to look at the documents and see.
13 Q Well, what documents should I go look
14 at to see whether you have any basis for making
15 the statements youre making?
16 A The various trade association
17 documents that we talked about this morning.
18 Q So I should look at the Asbestos
19 Cement Products Association documents, which you
20 say you dont have in your--
21 A And the AIA documents.
22 Q And the AIA documents.
23 And if I look at the AIA documents,
24 its going to show me that you did tests on cement
25 products?
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1 A Its not going to show that
2 CertainTeed did tests, but I think its going to
3 show that research was being done thats--thats
4 consistent with the kind of research that Dr.
5 Wright was suggesting and you keep going back to.
6 Q Tell me what proof you have, as you
7 sit here today, that CertainTeed had access to
8 health research that Dr. Wright recommended be
9 done.
10 MR. EDELL: Objection to the form of
11 the question. He already told you.
12 A You know, all I could say is I
13 believe that kind of research was discussed at
14 trade association meetings, including the AIA
15 meeting, where CertainTeed would have been a
16 participant.
17 Q Well, I need to know specifically
18 what youre referring to.
19 A I--I cant be more specific.
20 Q Okay. The question about whether
21 anybody ever made a recommendation about a
22 warning, you told me before that the answer was
23 no.
24 Would you stay with that answer?
25 A Well, I dont know. Youve--youve
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1 pointed me to this lawyer from Johns-Manville who
2 suggested that warnings should be placed on
3 products.
4 Im not sure exactly what products
5 that he was contemplating the warnings would go
6 on. But you may be right that theres at least
7 some suggestion by somebody to a group that
8 includes a representative of CertainTeed about
9 putting warnings on products.
10 Q There is also a question that says
11 who at CertainTeed was involved in determining
12 whether people should be warned, and now we know
13 Mr. Alpine was on the committee.
14 Would you amend that answer?
15 MR. EDELL: Whoa. Lets go slow,
16 please.
17 Lets get the interrogatory that
18 youre referring to, Mr. Placitella.
19 Q Is it B.19?
20 MR. EDELL: Lets check.
21 A I dont know. I think you took the
22 interrogatories back. I dont have them.
23 Q Here. Ill grab it.
24 MR. EDELL: B.19.
25 MR. PLACITELLA: Actually, its B.20.
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1 MR. EDELL: Set forth the name,
2 address and job position of each and every
3 individual who took part in your companys
4 decision to place a warning on its asbestos
5 or asbestos containing products.
6 MR. PLACITELLA: Right.
7 Q So did you include in that answer
8 only the warnings that were actually put on or
9 whether people were involved in deciding whether
10 warnings should be put on?
11 A Im not really sure we made that
12 distinction. But I dont think the fact that
13 somebody went to a meeting and somebody at the
14 meeting suggested that warnings doesnt mean that
15 CertainTeed was even considering a warning. I
16 dont think we even got to that point.
17 Q Even though he was on the committee
18 that discussed putting warnings on?
19 A The committee didnt really discuss
20 it. Mr. Ball made a presentation.
21 Q The committee didnt discuss whether
22 people who were handling asbestos cement products
23 should be warned?
24 A The committee discussed the
25 brochure. It didnt--I dont think the committee
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1 discussed putting warnings on products.
2 Q Okay. Thats your position, and
3 youre sticking to it. Okay.
4 MR. EDELL: Thats what the
5 document--
6 A Thats what the question--
7 Q Okay.
8 A Thats what the question asks.
9 Q Okay. Am I correct, sir, when I
10 asked you before that CertainTeed refused to put
11 warnings on its products, even though members of
12 industry urged them to do so?
13 MR. EDELL: Objection to the form of
14 the question.
15 A The fact that Mr. Ball made a
16 general--a general presentation that suggested
17 that companies should put warnings on products, I
18 dont think it really urged CertainTeed to put a
19 warning on its products.
20 Im not aware of anybody having urged
21 CertainTeed, looking at the products CertainTeed
22 was selling, that say you should put a warning on
23 your product and we refused. Im just not aware
24 of that.
25 Q Did National Gypsum put a warning on
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1 its product?
2 A National Gypsum in I believe 1973,
3 maybe it was in 72, it might have been 73, put
4 a--put the OSHA warning, basically.
5 It may--actually, their first warning
6 probably was a variation of the OSHA warning. It
7 was a sheet that they put with each shipping unit
8 on flat and corrugated sheets.
9 Q Did National Gypsum supply this
10 brochure to consumers?
11 A The brochure we talked about earlier?
12 Q Correct.
13 A I dont think so. I think it just
14 went to fabricators.
15 Q Are you certain?
16 A Im pretty--Im pretty certain.
17 Q Okay. Did any other member of the
18 Asbestos Cement Products Association distribute
19 this brochure to either workers or consumers, to
20 your knowledge?
21 A I dont know.
22 Q When you sold asbestos cement siding,
23 as distinguished from asbestos cement board, how
24 would a consumer know that that product was sold
25 by CertainTeed?
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1 A It was essentially the same. It was
2 packaged in a bundle with a wire strap, is my
3 understanding, and again, the cardboard
4 underneath, there would have been a CertainTeed
5 identification somewhere on that cardboard.
6 Q If CertainTeed wanted to put a
7 warning on the asbestos cement siding, was there a
8 means to do that near the name of the company?
9 A I assume so.
10 Q If CertainTeed wanted to put a
11 warning on the asbestos cement board that it sold,
12 would it have the means to do that underneath the
13 name CertainTeed?
14 A Yes.
15 Q Do you agree with me that the
16 brochure talks about protecting people who drill
17 into asbestos cement products?
18 MR. EDELL: Objection to the form of
19 the question.
20 A I dont know if it talks about
21 protecting, but Im sure it discusses cutting,
22 sawing and drilling.
23 Q All right. I want to go one at a
24 time.
25 Does it talk about people drilling
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1 into asbestos cement products, their avoiding dust
2 created in that process?
3 A I probably should look, but I think
4 it does talk about that.
5 Q All right. Does it talk about
6 minimizing exposure to asbestos dust for people
7 who cut the product?
8 A Yes, I believe so.
9 Q Does it talk about minimizing
10 exposure to asbestos dust for people who handle
11 the product?
12 A Im not sure.
13 Q Well, it talks about making sure one
14 board cant go on the other. Remember?
15 A And not breaking the board. But I
16 dont think it--I dont think it necessarily makes
17 the next step that you make.
18 Q All right. On construction sites,
19 are you aware that sometimes the products break on
20 site?
21 A Cement board can sometimes break,
22 yes.
23 Q And shingles?
24 A Yes.
25 Q All right. Are you aware that the
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1 brochure talks about people protecting themselves
2 when the product is broken on a work site?
3 A Again, I dont--Im not sure it
4 really talks about protecting themselves.
5 Q It says avoid being exposed to dust.
6 A It basically talks about avoid
7 creating dust.
8 Q Right. When products are broken on a
9 work site.
10 MR. EDELL: Objection to the form of
11 the question.
12 Q Would you agree with that?
13 A I believe thats probably correct.
14 Q All right. Would you agree with me
15 that CertainTeed never communicated to any
16 consumer or worker that they should protect
17 themselves on construction sites where CertainTeed
18 asbestos cement products are broken?
19 A Again, I dont believe CertainTeed
20 gave any warnings with asbestos cement board or
21 asbestos cement siding shingles, with the possible
22 exception of if we received the National Gypsum
23 warning in 73, which is about the time we stopped
24 selling that product. But there could have been
25 an overlap time period. So we may have passed on
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1 a warning that National Gypsum had included, or
2 maybe they didnt happen. Im just not sure on
3 the dates.
4 Q My question is, would you agree that
5 National--that CertainTeed never conveyed any
6 information to any consumer or worker about
7 avoiding exposure to asbestos from broken
8 CertainTeed products on a work site?
9 A Well, again, with the exception I
10 just said, that National Gypsum warning would have
11 encompassed avoid creating dust would have been
12 part of the warning. So if--if that warning was
13 passed on by CertainTeed, then the answer is no, I
14 dont know that that ever happened.
15 Q Well, sir, you have no information as
16 you sit here that the warning that was given to
17 Certain--CertainTeed was ever passed on, do you?
18 A I dont even know if CertainTeed ever
19 received any flat sheets that had that warning,
20 because the time is very close from when they
21 started using it and we stopped selling the
22 product.
23 Q Okay. So let me ask the question
24 again.
25 Am I correct that CertainTeed never
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1 conveyed to any worker or consumer any information
2 about protecting themselves from asbestos dust
3 from broken CertainTeed siding or board products
4 on a work site?
5 A Again, you just keep asking the same
6 question. I have the same caveat about answering
7 it.
8 CertainTeed may have passed on if it
9 got a National Gypsum warning. I have no evidence
10 one way or the other on whether that happened, but
11 it might have happened. So I cant answer it
12 definitively yes or no.
13 Q As you sit here today, do you have
14 any evidence to indicate that CertainTeed passed
15 on or conveyed to consumers or workers that they
16 needed to protect themselves from broken products
17 on work sites?
18 A I--I guess I would say I have no
19 evidence that that happened.
20 Q As you sit here today, do you have
21 any evidence that CertainTeed passed on to workers
22 or consumers that they should protect themselves
23 when drilling into asbestos cement products?
24 A Again. I dont think we passed on
25 any warnings with those products. I dont think
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1 we perceived any hazards from those activities.
2 MR. PLACITELLA: Can you read my
3 question back, please.
4 (The reporter reads the following:
5 QUESTION: As you sit here today, do
6 you have any evidence that CertainTeed
7 passed on to workers or consumers that they
8 should protect themselves when drilling into
9 asbestos cement products?)
10 Q Can you answer that question?
11 A Again, its the exact same answer.
12 I dont believe we passed on any
13 warnings of these products, with the possible
14 exception of the National Gypsum warning for a
15 short time before we stopped selling asbestos
16 cement board--
17 Q Sir, do you--
18 A --which I dont have any evidence one
19 way or the other.
20 Q Do you agree with me, sir, that an
21 unbiased witness can provide a simple answer to a
22 simple question?
23 A Sometimes.
24 Q Okay. So, sir, Im going to ask you
25 this simple question.
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1 Do you have any evidence that
2 CertainTeed ever told any consumer or worker that
3 they should avoid exposure to asbestos when
4 drilling into CertainTeed asbestos cement
5 products?
6 A No.
7 Q Okay. As you sit here today, do you
8 have any evidence that CertainTeed ever told any
9 consumer or any worker that cutting asbestos
10 cement products was potentially dangerous to their
11 health?
12 A Are you putting aside pipe?
13 Q Correct.
14 A Putting aside pipe, I have no such
15 evidence.
16 MR. PLACITELLA: Thats the
17 only--thats all the questions. Thank you
18 very much.
19 MR. EDELL: Well take a short break.
20 THE VIDEOGRAPHER: Off the video
21 record at 2:34 p.m.
22 (A short recess was taken.)
23 (Affidavit of Charles B. Blakinger
24 dated 10/3/07, with attachments, 20 pages,
25 received and marked Exhibit CertainTeed-2
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1 for identification.)
2 THE VIDEOGRAPHER: Back on the video
3 record at 2:42 p.m.
4 EXAMINATION
5 BY MR. EDELL:
6 Q Mr. Blakinger, Id like to clear up a
7 couple of issues.
8 First Im going to show you what Mr.
9 Placitella--
10 MR. PLACITELLA: Just for the record,
11 Mr. Edell, hes your lawyer. Right?
12 So I dont want it to seem like my
13 voice changed, I got close to you, you
14 know--
15 MR. EDELL: And he didnt--and he
16 didnt get any better looking either.
17 MR. PLACITELLA: You and me in
18 comparison at this stage of our life doesnt
19 go very far.
20 MR. EDELL: Okay.
21 Q In--in any event, Mr. Blakinger, I am
22 your counsel. Correct?
23 A Yes.
24 Q We have not spoken concerning this
25 deposition since--
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1 MR. PLACITELLA: I might say that in
2 his younger days it might have been a
3 different story, but today--
4 Q We havent spoken since this
5 deposition has begun; is that correct?
6 A Thats correct.
7 Q All right. Im going to show you
8 what was marked as Plaintiffs Exhibit P-2 for
9 identification.
10 Can you tell the jury what that is,
11 please.
12 A Thats the interrogatory answers,
13 CertainTeeds responses to the Form B
14 Interrogatories in New Jersey.
15 Q And can you tell the jury the date
16 upon which you executed the certification, that
17 is, the certification to the answers?
18 A September 16th, 2008.
19 MR. EDELL: Okay. And, Mr.
20 Placitella, can we stipulate that
21 this--these answers were filed, oh, I think
22 about a year before Mr. Johnson filed his
23 claim?
24 Is that about right?
25 MR. PLACITELLA: I dont know. I
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1 really dont know.
2 MR. EDELL: Well, he has an 09
3 docket; is that correct?
4 Certainly, we can agree that these
5 were filed before he even filed his claim.
6 MR. PLACITELLA: The proof will be
7 what it will be.
8 MR. EDELL: You wont stipulate to
9 that?
10 MR. PLACITELLA: I dont know. I
11 dont have the stuff in front of me.
12 MS. GEISE: You have the notice. You
13 have the--
14 MR. PLACITELLA: Im assuming the
15 answer is yes, but I dont know.
16 MR. EDELL: You have the deposition
17 notice. Heres the--
18 MR. PLACITELLA: Just ask your
19 questions.
20 MR. EDELL: Heres the deposition
21 notice.
22 MR. PLACITELLA: I see it.
23 MR. EDELL: Does that refresh your
24 recollection that it was filed in 2009?
25 MR. PLACITELLA: Unlike you, I dont
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1 testify when Im taking depositions.
2 MR. EDELL: All right. So hes going
3 to do it the hard way.
4 But Ill make a representation that
5 those--these answers, P-2, were filed well
6 before Mr. Johnson filed his Complaint.
7 BY MR. EDELL:
8 Q You also talked about in your
9 discussion with Mr. Placitella the--the
10 recognition by you at some juncture that your
11 Answers to Interrogatories identifying corrugated
12 Transite board, or asbestos cement board, rather,
13 as being a product that was sold by CertainTeed as
14 having been in error.
15 Do you remember that?
16 A The reference to corrugated was in
17 error.
18 Q Corrugated. Thats correct.
19 Im going to show you what has been
20 marked as CertainTeed--CertainTeed-2.
21 Can you tell us what that is,
22 please?
23 MR. PLACITELLA: Are you going to let
24 me read it first?
25 MR. EDELL: Yes. I handed it to you
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1 before we started.
2 MR. PLACITELLA: I glanced at it.
3 Are you going to let me sit here and
4 read it?
5 MR. EDELL: I let you have it as long
6 as you wanted it there.
7 MR. PLACITELLA: Well--
8 MR. EDELL: Whoa, whoa, whoa, whoa,
9 whoa. You had it as long as you wanted it,
10 and you turned it back.
11 MR. PLACITELLA: I looked at it just
12 to see what it was.
13 MR. EDELL: Go ahead, Chris. Come
14 on.
15 MR. PLACITELLA: If you knew you had
16 questions you wanted to ask him, you should
17 have given me the document, Mark.
18 MR. EDELL: Chris. Go ahead and read
19 it, please.
20 MR. PLACITELLA: Do you have any
21 others youre going to show him? Because
22 Im going to read every one, beginning to
23 end.
24 MR. EDELL: I know you are, so just
25 read it.
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1 We might as well go off the video.
2 THE VIDEOGRAPHER: Off the video
3 record at 2:46.
4 (Off the record.)
5 THE VIDEOGRAPHER: Back on the video
6 record at 2:49.
7 MR. PLACITELLA: Since I do not have
8 a microphone, I am not raising my voice. I
9 am just speaking louder.
10 Okay?
11 Ive had the opportunity to briefly
12 review this affidavit, which was not
13 provided before the deposition.
14 I note that the affidavit is executed
15 I think in 2007, October 2007. So
16 certainly, there was the opportunity to do
17 that.
18 To the extent that the affidavit is
19 being attempted to buttress the testimony of
20 your own witness, that would be improper
21 under the rules of evidence, and Ill
22 reserve the right to go over each and every
23 line of this affidavit with the witness when
24 youre done.
25 MR. EDELL: Thats fine with me. You
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1 can do what you like.
2 MR. PLACITELLA: All right.
3 And I would reserve the right to
4 bring the witness back tomorrow, because I
5 dont think Im going to finish that today,
6 each and every line of that affidavit.
7 So if you choose to ask him the
8 questions about that affidavit that I have
9 not been previously provided, understand
10 that the issue will be whether he comes back
11 tomorrow and I ask him about every line in
12 that affidavit.
13 MR. EDELL: Well, first of all, Mr.
14 Placitella, youre not going to intimidate
15 me into not--
16 MR. PLACITELLA: No one is--
17 MR. EDELL: Let me finish. Let me
18 finish.
19 MR. PLACITELLA: Dont hit me now.
20 MR. EDELL: Let me finish.
21 --into not using the document that is
22 relevant.
23 I dont know whether youre going to
24 argue at some later juncture that this was
25 some recent fabrication respecting--
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1 MR. PLACITELLA: I never implied
2 that.
3 MR. EDELL: --respecting--respecting
4 the corrugated board.
5 So, it also memorializes in greater
6 detail exactly what transpired in his
7 efforts to determine whether there was or
8 was not corrugated asbestos cement board
9 that was sold by CertainTeed.
10 So you can do what you want to do.
11 If you think were going to sit here for
12 another day while you read this, its not
13 going to happen.
14 MR. PLACITELLA: Well, I think it
15 will.
16 MR. EDELL: Well, well see.
17 MR. PLACITELLA: Okay.
18 Q Can you tell us--
19 MR. EDELL: Lets go back on the
20 video, please.
21 THE VIDEOGRAPHER: Were back on.
22 MR. EDELL: Were back on. Okay.
23 Good.
24 BY MR. EDELL:
25 Q Can you tell us what CertainTeed-2
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1 is?
2 A Its an affidavit that I signed in
3 connection with another asbestos case a couple of
4 years ago.
5 Q And what does that relate to?
6 MR. PLACITELLA: By the way, can I
7 have a copy to go along while youre--
8 MR. EDELL: I dont have an extra
9 copy. If you would like to make a copy, we
10 can take a break. Were in your office. If
11 you want to make a copy--
12 MR. PLACITELLA: That would be great.
13 MR. EDELL: --we can do that.
14 So lets go off the record.
15 THE VIDEOGRAPHER: Off the video
16 record at 2:52.
17 (A short recess was taken.)
18 THE VIDEOGRAPHER: Back on the video
19 record at 2:53.
20 BY MR. EDELL:
21 Q In order to facilitate the completion
22 of the deposition while were making copies of the
23 certification, Id like to ask a couple of other
24 questions, Mr. Blakinger.
25 Mr. Placitella asked you questions
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1 about whether other manufacturers had recommended
2 to CertainTeed that they place--that it place
3 warnings on its products.
4 Do you remember that?
5 A Yes.
6 Q And is--in fact, the only document
7 that he was able to produce in that regard was the
8 minutes of a trade association meeting where one
9 individual, a lawyer, made recommendations to the
10 people who were present that, in order to avoid
11 liability, that they place warnings on their
12 product; is that correct?
13 MR. PLACITELLA: Objection. Leading
14 your own witness.
15 A Thats correct.
16 Q And there was--the name of the lawyer
17 was Mr. Ball; is that correct?
18 MR. PLACITELLA: Objection. Leading.
19 A Yes.
20 Q And was there any--to your knowledge,
21 was Mr. Ball a trained physician?
22 A I dont know. He was a lawyer.
23 Q Okay. Did Mr. Ball express the need
24 to place these warnings on the products for any
25 reason other than to insulate the manufacturers
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1 from potential lawsuits?
2 A I believe that was the reason he
3 gave, as reported in this document.
4 Q Okay. Did any other representative
5 of any other company make any such suggestion?
6 A Not that Im aware of.
7 Q In--in all of the other trade
8 association meetings that you were aware of that
9 occurred, have you ever seen any such suggestion
10 previously?
11 MR. PLACITELLA: Objection to the
12 form.
13 A I dont know.
14 Q Okay. Okay. Do you know Mr. Ball
15 was employed by--whether Mr. Ball was employed by
16 Johns-Manville?
17 A I believe he was.
18 Q And do you know when Johns-Manville
19 began to place warnings on its asbestos cement
20 products such as asbestos cement pipe?
21 A Its my understanding they didnt
22 place a warning on pipe until after CertainTeed
23 did so, which I believe was 1979.
24 Q Okay. Now, Mr. Placitella made
25 a--made inquiry concerning whether CertainTeed
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1 ever conducted any tests of its products to
2 determine whether or not there might be potential
3 hazards to users of their products.
4 Do you remember that?
5 A Yes.
6 Q And you made reference to a study
7 that was performed by EEH; is that correct?
8 A Yes.
9 Q Is that Equitable Environmental
10 Health?
11 A Yes.
12 Q And can you please tell the members
13 of the jury when that study was made and the
14 reason why the study was made.
15 A It was made in 1977. I think there
16 were two studies. One was in March, and one was
17 in December. And it was made because we became
18 aware of use of abrasive disk saws that were gas
19 powered and the potential that that would create a
20 lot of dust when you cut asbestos cement pipe, and
21 because I believe OSHA was considering regulating
22 construction products, and the industry,
23 CertainTeed and the other manufacturers as well,
24 wanted to know which operations might--might
25 present an issue and which wouldnt.
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1 Q Why--
2 MR. PLACITELLA: Before you ask the
3 next question, just for the record, so we
4 know where were going, I specifically
5 didnt go into the substance of the study,
6 because I did it with Mr. Ambler, as part of
7 our agreement.
8 If this is where youre going, Ill
9 pull out the study, and well go through it
10 painstakingly.
11 MR. EDELL: You--
12 MR. PLACITELLA: I thought our
13 agreement was I wasnt going to repeat with
14 him things I did with Mr. Ambler.
15 Youve now changed that--
16 MR. EDELL: No. You--
17 MR. PLACITELLA: --and thats fine.
18 I said--all my questions were other than the
19 asbestos cement study, because I thought I
20 was complying with what I thought were the
21 parameters of the deposition.
22 MR. EDELL: No. You--
23 MR. PLACITELLA: Youre now--let me
24 just finish--
25 MR. EDELL: Go ahead.
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1 MR. PLACITELLA: --and then you can
2 say whatever you want to say.
3 MR. EDELL: Sure.
4 MR. PLACITELLA: If youre now going
5 to go into that, I will spend an extensive
6 amount of time examining him on his
7 knowledge of the study, the basis for the
8 study, whether he was there for the study,
9 the results of the study, et cetera, and so
10 on.
11 MR. EDELL: Mr. Placitella, just to
12 refresh your recollection, you made much ado
13 about the fact that the study did not use
14 actual pipe manufactured by CertainTeed; did
15 you not?
16 MR. PLACITELLA: That is absolutely
17 correct.
18 MR. EDELL: Okay.
19 MR. PLACITELLA: I wouldnt say
20 to-do. I stated facts--
21 MR. EDELL: Okay.
22 MR. PLACITELLA: --which he agreed
23 with.
24 MR. EDELL: So were just--were just
25 going to limit ourselves to a discussion of
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1 the area that you brought up.
2 Okay?
3 MR. PLACITELLA: Thats not what I
4 heard so far. So Im just putting you on
5 notice where Im going.
6 MR. EDELL: Well, thats where were
7 going.
8 MR. PLACITELLA: Okay.
9 BY MR. EDELL:
10 Q Mr. Blakinger, did CertainTeed
11 believe that the results of the studies performed
12 by EEH were applicable to the asbestos cement pipe
13 that it manufactured?
14 A Yes.
15 Q And why was that?
16 A Because all asbestos cement pipe had
17 a very similar formula and similar contents and
18 similar amounts of asbestos and there was no
19 reason to think it would also be really any
20 different at all from one manufacturer to another,
21 no matter whose pipe was used.
22 Q Was there--
23 MR. PLACITELLA: Objection to the
24 competence of this witness to discuss what
25 CertainTeed believed, given the fact that he
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1 wasnt there and at the time he was either
2 in law school or representing a competitor.
3 I dont want to take you too far
4 back.
5 MR. EDELL: I thought we were just
6 objecting to the form of the question, Mr.
7 Placitella.
8 MR. PLACITELLA: Im doing a lot less
9 testifying than you did.
10 MR. EDELL: Well see.
11 Q Were the studies that were performed
12 by EEH submitted to any governmental agency?
13 A Im not sure when they were
14 submitted. I think they had been cited by OSHA
15 sometimes in several proceedings.
16 Q Okay. Did--
17 A Im really not--Lloyd Ambler is much
18 more knowledgeable about--
19 Q Okay.
20 A --this topic than I am.
21 Q Then--then well--well stick with
22 Lloyds discussion of that matter.
23 You said no studies were performed
24 with respect to other products; is that correct?
25 A Other than pipe, yes.
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1 Q Other than pipe.
2 And why is that?
3 A Because there was no perception that
4 there was any hazard with those products, most of
5 which were not dusty at all, no asphalt coatings
6 in various roofing products, which just obviously
7 arent--arent dusty.
8 Q Was that opinion held by others
9 outside of the CertainTeed Corporation?
10 MR. PLACITELLA: Objection to the
11 competence of this witness to testify about
12 opinions held by others for a company he
13 never worked for during the time they were
14 making the product.
15 Q Sir?
16 A I believe so. I believe that over
17 the years theres various governmental proceedings
18 on, for example, asphalt roofing products that
19 show that they really dont release any fibers
20 during normal use.
21 Q Were there any statements by such
22 authorities as Dr. Selikoff regarding asbestos
23 cement products and whether they presented a
24 potential health hazard?
25 MR. PLACITELLA: Objection to the
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1 form of the question.
2 A Yes. Ive seen exhibits where Dr.
3 Selikoff basically says, you know, these--we have
4 these hazardous insulation products, but
5 fortunately products like asbestos cement and roof
6 coatings and roof cements are not hazardous.
7 This is in--
8 MR. PLACITELLA: Objection.
9 A This is in the 70s.
10 MR. PLACITELLA: Objection. Hearsay.
11 MR. EDELL: Did you get your copy of
12 P-2?
13 MR. PLACITELLA: I do have it, Mr.
14 Edell--
15 MR. EDELL: Okay.
16 MR. PLACITELLA: --and I sent some
17 copies around.
18 MR. EDELL: Do you need time to read
19 it?
20 MR. PLACITELLA: I think I am good.
21 But I will spend the time going through,
22 depending on what you ask him.
23 MR. EDELL: Okay.
24 Q Mr. Blakinger, why did you prepare
25 the affidavit, CertainTeed-2?
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1 A I think it was filed in a case where
2 we were moving for summary judgment, where the
3 claim had been that the plaintiff worked with
4 corrugated asbestos cement siding. And so we
5 often do affidavits in support of summary
6 judgment. This one is a little longer than
7 usual. But that would have been the purpose.
8 Q And was it in regard--in relationship
9 to your preparation of this affidavit that you
10 realized the error you had made in answering the
11 interrogatories?
12 A Well, it was probably before the
13 affidavit. Somewhere along there, in connection
14 with this case--
15 Q When you say this case, what are
16 you talking about?
17 A This, the Wager, I believe it was in
18 the Wagers case. Yes, the Wagers case, which I
19 believe was in North Carolina.
20 Q Which was pending in what point in
21 time?
22 A In 2007--
23 Q Okay.
24 A --when this was done.
25 Somewhere in connection with putting
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1 together our defense in that case, we realized
2 that the discovery attachment on other asbestos
3 cement products had said flat and corrugated. And
4 we didnt know what basis there was for the
5 corrugated, and basically I quickly concluded that
6 I had just thrown that phrase in because that was
7 the phrase I was used to using when I represented
8 National Gypsum, and there was no basis for it.
9 So we did a big investigation to try
10 to determine whether we ever sold asbestos cement
11 corrugated siding, and some of that is reflected
12 in this affidavit.
13 Q Did you make a good-faith effort to
14 determine whether CertainTeed made and/or sold
15 corrugated asbestos cement board?
16 A Yes.
17 Q And what was the result of that
18 effort?
19 A We could not find any evidence
20 whatsoever that we ever sold that product.
21 Q Are you satisfied that you conducted
22 as complete an investigation as possible in order
23 to answer that question?
24 A Yes.
25 Q Do you have any reason to believe
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1 that, in fact, at the time period Mr. Johnson
2 was--had testified that he used asbestos cement
3 board, corrugated board, that Mr. Johnson was
4 mistaken when he identified the manufacturer as
5 CertainTeed?
6 A That got too long for me.
7 Q Probably. So it was probably a bad
8 question.
9 Do you have any reason to believe
10 that Mr. Johnson--Johnsons testimony that you
11 heard concerning his use of corrugated asbestos
12 cement board manufactured by CertainTeed was
13 inaccurate?
14 MR. PLACITELLA: Objection.
15 A I believe--
16 MR. PLACITELLA: Mischaracterizes his
17 testimony.
18 A I believe, to the extent he
19 identified CertainTeed as the manufacturer of that
20 product, that that was inaccurate.
21 Q Did CertainTeed ever manufacture or
22 use--strike that.
23 Did CertainTeed ever use the word
24 Transite on any of its products?
25 A No. That was a trade name for
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1 Johns-Manville, and CertainTeed couldnt use
2 Johns-Manvilles trade name. So we did not use
3 that name.
4 Q To your knowledge, did Johns-Manville
5 make corrugated Transite board?
6 A Yes.
7 Q The kind of Transite board that was
8 used to sheath the outside of buildings?
9 A Yes.
10 Q The kind of corrugated Transite board
11 that was described by Mr. Johnson?
12 A Yes.
13 MR. PLACITELLA: Objection to the
14 form.
15 MR. EDELL: I have no further
16 questions.
17 MR. PLACITELLA: Okay. I have some
18 questions.
19 Have you withdrawn the questions
20 about the 77 tests, by the way?
21 THE VIDEOGRAPHER: Want to take the
22 microphone?
23 MR. EDELL: What questions?
24 MR. PLACITELLA: Im sorry?
25 MR. EDELL: What questions?
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1 (Off the record.)
2 MR. PLACITELLA: My question, for the
3 record, is, have you withdrawn the questions
4 about the 1977 tests or the results of those
5 tests and would you rely upon the testimony
6 of Mr. Ambler, or do I need to examine this
7 witness on those test results?
8 MR. EDELL: To my--to my way of
9 thinking, all I did with these tests is to
10 address questions that were raised during
11 the course of your examination of the
12 witness that implicated these tests, and to
13 that extent, I have nothing to withdraw.
14 MR. PLACITELLA: Okay.
15 FURTHER EXAMINATION
16 BY MR. PLACITELLA:
17 Q In 1977, Mr. Blakinger, what were you
18 doing?
19 A I was an associate at the law firm of
20 Schnader, Harrison, Segal & Lewis.
21 Q Were you a practicing lawyer?
22 A Yes.
23 Q For how long?
24 A Well, actually, thinking back--
25 MS. GEISE: Is this a quiz?
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1 MR. PLACITELLA: No.
2 Q At that point in time.
3 A Thinking back, I graduated in 75,
4 and I clerked in District Court until October of
5 77. So I would have just started--in late 77, I
6 would have started with Schnader, Harrison.
7 Q Okay. So you were a new associate.
8 A Yes, or still a clerk in District
9 Court.
10 Q You had nothing to do with
11 CertainTeed at that point in time.
12 A Thats true.
13 Q You had no information at that point
14 in time as to what was in their minds in terms of
15 making decisions about asbestos.
16 A At that time, I had no such
17 knowledge.
18 Q All right. You have--what documents
19 have you reviewed to determine what was in the
20 mind of CertainTeed in terms of its decision to
21 place or not to place warnings on its products?
22 A I cant--I cant specify particular
23 documents. I have read deposition testimony of
24 Lloyd Ambler. I have seen documents relating to
25 the EEH studies.
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1 Q But you personally have no personal
2 knowledge as to what was in the minds, based on
3 your own personal experience, of the people at
4 CertainTeed when they were making decisions about
5 warnings on asbestos products. True?
6 MR. EDELL: Objection to the form of
7 the question.
8 I dont know what you mean by
9 personal knowledge.
10 A Well, I wasnt there at the time.
11 Q You also talked, in response to Mr.
12 Edells questions, about the perception of people
13 at CertainTeed.
14 Do you recall that?
15 A Im not sure in what context.
16 Q All right. Do you have any idea, as
17 you sit here today, as to what shape the
18 perception of people at CertainTeed before you
19 started to work there?
20 MR. EDELL: Objection to the form of
21 the question.
22 A Well, again, Ive--Ive read dozens
23 and dozens of deposition transcripts, Ive looked
24 at lots of documents. Thats some basis for
25 forming some views of what the perceptions were.
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1 Q Okay. And thats the basis.
2 A Yeah.
3 Q Okay. You executed this affidavit--
4 MR. EDELL: CertainTeed-2.
5 Q --CertainTeed No. 2.
6 MR. PLACITELLA: This is not it.
7 Where is it?
8 Where did it go?
9 MR. EDELL: We have a copy of it
10 here, and I gave you a copy.
11 MR. PLACITELLA: I dont know what
12 the heck I did with it.
13 THE WITNESS: Do I have two copies?
14 MR. PLACITELLA: Im sorry. This is
15 a certification. I picked up the wrong
16 certification.
17 Q When you executed P CertainTeed-2,
18 you did this in order to try to exonerate
19 CertainTeed from responsibility for somebody who
20 got sick who alleged that they were exposed to
21 CertainTeed signing--siding. True?
22 A Well, yeah, with a motion for summary
23 judgment to get CertainTeed dismissed from the
24 case.
25 Q Right. And this mans exposure
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1 pertained to exposures that happened in the
2 1970s. True?
3 A I cant remember. Looking at this,
4 it says 65 to 77.
5 Q Okay. This did not relate to records
6 or information available before 1960. Correct?
7 A That case did not, thats correct.
8 Q Okay. You say that all statements
9 here are based upon my personal knowledge or based
10 upon a review of company records.
11 In pre--in--in executing this
12 affidavit, did you review specific company
13 records?
14 A Yes.
15 Q And where are those company records
16 today, the specific ones you reviewed in order to
17 execute this affidavit?
18 A I assume theyre at Goodwin Procter.
19 Some--some may be in my office.
20 Q Well, how am I going to know what
21 documents you relied upon in executing this
22 affidavit that you said that you executed?
23 Do you have--can you segregate them
24 and give them to Mr. Edell and have him give them
25 to me?
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1 MR. EDELL: You can ask--make any
2 discovery requests whatsoever.
3 MR. PLACITELLA: Im asking him if
4 its even possible.
5 MR. EDELL: Hes the witness.
6 MR. PLACITELLA: I understand.
7 A For some of these, Im sure it is.
8 Theyre described here, and weve talked at length
9 about these same documents--
10 Q Okay.
11 A --this morning.
12 Q Okay. I dont know if theyre the
13 same. Thats why I want to ask the question.
14 You indicate that you have looked at
15 product brochures and literature.
16 What product brochures and
17 literature?
18 A Where is that?
19 Q Your second paragraph.
20 A Well, thats just part of my job. I
21 see lots of product brochures and literature over
22 the years.
23 Q No. But I want to know what specific
24 product brochures and literature you looked at in
25 order to execute this affidavit, because you say
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1 your affidavit is based upon a review of the
2 records.
3 A If you get--later on, it tells the
4 specific things I looked at that were pertinent to
5 this affidavit. Thats just a general
6 description.
7 I mean, I have lots of background
8 knowledge, because Ive looked at lots and lots of
9 documents relating to CertainTeed
10 asbestos-containing products. Thats part of--
11 Q So did you look at any product
12 brochures and literature that were relevant to
13 this affidavit?
14 A Well, I guess I would say just
15 generally one aspect of this affidavit is in all
16 of the product literature that I have seen. I
17 have never seen anything referring to corrugated
18 siding.
19 Q Does any of the product literature
20 date back before 1960?
21 A Probably some of it does.
22 Q Can I--can you please produce that?
23 Can you get that?
24 A Again, for this product literature,
25 this is just--in the course of the whole time Ive
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1 been working at CertainTeed, I regularly look at
2 product literature. I cant segregate any
3 particular thing as to this aspect of this
4 affidavit.
5 Thats just one piece of this is in
6 all of the years that Ive been there and looked
7 at product literature, I have never seen any
8 corrugated.
9 No, I cannot tell you--I cant tell
10 you--
11 Q So you--
12 A --other than its all--it should all
13 be at Goodwin Procter.
14 Q So you didnt look at any particular
15 brochures or literature in relation to this
16 affidavit.
17 A Well, when you get--
18 MR. EDELL: He said he looked
19 at--objection to the form of the question.
20 He said he saw particular brochures.
21 He just cant recall them all now.
22 Q Well, did you segregate them?
23 How am I going to know what you
24 looked at?
25 A I think what was looked at
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1 specifically for this affidavit, for example, if
2 you look at paragraph 5--
3 Q No. Im just--Im on paragraph 2.
4 MR. EDELL: Maybe 5 will clarify it.
5 A As to paragraph 2, thats just
6 general background. I cannot--for this particular
7 affidavit, I didnt look at any particular
8 brochures.
9 Q Okay. Thats--
10 A Its just as part of my job, I look
11 at lots of them.
12 Q Its your affidavit.
13 A Okay.
14 Q It says annual reports.
15 What annual reports did you look at
16 as it relates to this affidavit?
17 A Probably a lot.
18 Q Where are they?
19 A I think theres a set at Goodwin
20 Procter, and theres probably a set in our offices
21 somewhere.
22 Q Can you pro--and they were the
23 doc--the actual annual reports that you reviewed
24 in reference to this affidavit?
25 A No, I cant reference it specific to
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1 this affidavit.
2 Q Okay. Company histories, where--what
3 company histories did you review in reference to
4 this affidavit?
5 A Theres some documents that are
6 basic. Thats you how describe them. I
7 didnt--again, this paragraph, the things itemized
8 here werent necessarily referenced to this
9 affidavit in particular.
10 Q All right. So--
11 A Its just when I sit down to take the
12 affidavit, one of the things in the back of my
13 mind is out of all the things Ive looked at, Ive
14 never seen anything about CertainTeed corrugated
15 asbestos cement siding. Thats one fact.
16 MR. EDELL: I guess what hes saying,
17 Chris, he has this--this general knowledge
18 from all these years of looking at all this
19 information, and added to that is the
20 materials that hes specifically looked at--
21 THE WITNESS: Which are described
22 later--
23 MR. EDELL: --which are enumerated in
24 paragraph 5, I believe.
25 MR. PLACITELLA: Who is--
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1 MR. EDELL: You just dont seem to be
2 getting it. Im trying to--
3 MR. PLACITELLA: I dont know.
4 Do you want to raise your right hand?
5 Because I thought I was asking him the
6 questions. Okay.
7 MR. EDELL: You just dont seem to
8 be getting it.
9 MR. PLACITELLA: I guess not.
10 Q This is the affidavit that you
11 executed you said based upon your personal
12 knowledge and review of documents. Right?
13 A Right.
14 Q In paragraph 2, did you qualify any
15 language to say this really doesnt apply to this
16 affidavit?
17 MR. EDELL: Thats not what
18 he--objection.
19 A Paragraph 2 describes what I do in my
20 job and notes that in part of that job, I reviewed
21 various documents.
22 Q Okay.
23 A The documents that were reviewed
24 specifically for this affidavit are described
25 later in the affidavit, for example, in paragraph
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1 5.
2 Q All right. So should I just discount
3 paragraph 2, then, and move on?
4 A No. I can explain the same thing
5 over and over. I can say again, as part of my
6 job, I review lots of CertainTeed documents, and
7 one aspect of did CertainTeed ever sell corrugated
8 siding is pertinent to the fact that out of all
9 the things Ive reviewed, Ive never seen a
10 reference--
11 Q All right.
12 A --to corrugated siding.
13 Q Yes, sir. And thats why I need the
14 specific information, because statements have been
15 made and representations have been made to my
16 client, who is dying, that he was wrong, and I
17 have a right to know exactly what proof youre
18 going to use.
19 And what Im asking you is, if there
20 is no specific proof, then tell me that. But you
21 put stuff in a sworn affidavit under oath that you
22 said you relied upon, and thats what I want to
23 know.
24 What company histories did you look
25 at in reference to this affidavit to make this
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1 statement?
2 MR. EDELL: Hes tried to explain
3 this to you.
4 Q Let me move on.
5 Did you look at any Sweets catalogs
6 in reference to the specific affidavit as it
7 relates to this specific affidavit?
8 A I dont believe I did as to this
9 specific affidavit.
10 Q Okay. You say company
11 advertisements.
12 Did you look at any company
13 advertisements specifically as it relates to this
14 affidavit?
15 A I dont believe so.
16 Q You say Underwriter Laboratory
17 product listings.
18 Did you look at any Underwriter
19 Laboratory product listings specific to this
20 affidavit?
21 A Not specifically when preparing this
22 affidavit.
23 Q All right. Sales records well get
24 to.
25 Manufacturing plant records, did you
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1 look at any specific manufacturing plant records
2 that reflect this--pertinent to this affidavit?
3 A I think theres some reference later
4 on.
5 Q Okay. And you say other
6 materials.
7 What other materials did you review
8 that are pertinent to this affidavit?
9 A Again, as I tried to explain before,
10 in the course of my job, I review lots of
11 CertainTeed documents relating to
12 asbestos-containing products.
13 I didnt do that review particularly
14 for preparing this affidavit, but it is a fact
15 that I have reviewed these things prior to that
16 time.
17 Q Well, but heres the problem. Youre
18 going to get on the stand when we try this case,
19 and youre going to say, I looked at all this
20 stuff, and Mr. Johnson was wrong, and I have a
21 right to know the factual basis for making that
22 statement.
23 A Right. And some of it is set forth
24 here in more specifics. But one of the factual
25 basis is in the course of my job, out of all the
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1 things Ive ever reviewed, I have never seen a
2 reference to corrugated.
3 Q Okay. Were going to get that--were
4 going to get to that.
5 You did look at this plaintiffs
6 deposition. Correct?
7 Thats what it says in paragraph 3.
8 A Im sure I did.
9 Q Okay. But that pertained to times in
10 the 60s and the 70s. True?
11 A Yes. And I think it was in North
12 Carolina.
13 Q Okay.
14 THE REPORTER: I have to change my
15 paper.
16 MR. PLACITELLA: Okay. Go ahead.
17 THE VIDEOGRAPHER: Off the record at
18 3:21.
19 (Off the record.)
20 THE VIDEOGRAPHER: Back on the record
21 at 3:22.
22 BY MR. PLACITELLA:
23 Q In paragraph 4 you say, third
24 sentence, Beginning in the 1950s, CertainTeed
25 purchased from National Gypsum Company certain
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1 asbestos cement products for resale under
2 CertainTeeds name.
3 Do you see that?
4 A Yes.
5 Q Were there any sales records to--or
6 purchase records that support that statement?
7 A As we covered this before, I believe
8 there were purchase records from St. Louis that
9 show purchases for resale of asbestos cement
10 siding and flat sheets. Other than that, I dont
11 believe there are any specific sales records for
12 that time period.
13 Q Okay. And did you state in your
14 affidavit that the only records you have were St.
15 Louis records? Because this man apparently worked
16 in North Carolina.
17 A I have to see what I said.
18 I did not state that.
19 Q All right. This man, whose case you
20 wanted dismissed, worked in North Carolina.
21 Correct?
22 A I think it said it might have been
23 Georgia.
24 Q And South Carolina?
25 A Maybe.
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1 Q The East.
2 A Its in there roughly, yes.
3 Q Southeast.
4 A Yes.
5 Q Would St. Louis--would St. Louis
6 records apply to Southeastern use?
7 A Probably not.
8 Q So when you made the statement that
9 you looked at the records, you didnt put anywhere
10 in this affidavit that those records dont apply
11 to this mans exposure, did you?
12 MR. EDELL: Objection.
13 What records are you referring to?
14 MR. PLACITELLA: The records from the
15 St. Louis plant that he discussed that he
16 just testified to.
17 Q At no point--let me rephrase the
18 question.
19 At no point did you indicate when you
20 put this sworn affidavit under oath that the
21 records you were referring to had no bearing
22 whatsoever on the mans exposure in the
23 Southeast. Correct?
24 A Well, I said--I was trying to review
25 all available records from whatever,
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1 because--because I was opining that we never sold
2 this product anywhere.
3 Q Right. And you did that in part
4 based on records from St. Louis that had no
5 relation whatsoever to this human being who
6 alleged exposure to your product. True?
7 MR. EDELL: He also looked at
8 records, if you look at 5--
9 MR. PLACITELLA: Im going to keep
10 going. Im going to keep going.
11 MR. EDELL: --from Savannah, Georgia
12 and Carolina regions.
13 MR. PLACITELLA: Okay.
14 MR. EDELL: Right?
15 Q Did you look at any
16 records--what--whats in--whats included in the
17 St. Louis records?
18 A I just--I recall a purchase ledger
19 and, you know, I didnt--
20 Q All right. Was there a purchase
21 ledger for the southeast?
22 A I just--I dont know whether there is
23 or not.
24 Q Did you review a purchase ledger for
25 the Southeast before you executed this affidavit?
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1 A Either I or people at Goodwin Procter
2 reviewed all available records. So if there was a
3 purchase ledger for the Southeast, it would have
4 been reviewed.
5 I just recall from an entirely
6 different case the St. Louis. So, as I sit here
7 today, I can remember looking at the St. Louis
8 records for some other case. And so I can tell
9 you about those records just because I happen to
10 remember them.
11 Q So when you say beginning in the 50s
12 you purchased National Gypsum asbestos cement
13 products, you were referring to the St. Louis
14 records?
15 A No. I think theres--I think theres
16 references in annual reports or company histories,
17 or something. Theres more evidence that they
18 were our supplier for asbestos cement siding and
19 flat sheets.
20 Q Okay. It says, The only asbestos
21 cement products purchased by CertainTeed for
22 resale from National Gypsum, however, were
23 asbestos cement roofing and siding shingles and
24 flat asbestos cement sheets.
25 Whats the basis for that for the
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1 East. Whats the basis for that statement?
2 A Thats what we believe we purchased.
3 I cant find any reference anywhere that suggested
4 we bought any other kind of product from them.
5 Q Well, youre saying that you reviewed
6 records, and I want to know what records you
7 reviewed that pertained to the Southeast that
8 enabled you to make the statement.
9 A You know we reviewed all available
10 records--
11 Q I need to know what records.
12 A Dealer price lists. I mean, by the
13 time of this guys exposure, which is 60s into
14 the 70s, we have more things that are more
15 definitive. Dealer price lists, those cover the
16 whole country.
17 We have Savannah roofing plant sales
18 records that cover the relevant time period, some
19 of the relevant time period.
20 If you go to paragraph 5, you see
21 more specific things that we reviewed, and those
22 are more--as time goes by, we have more
23 documents.
24 Q Okay. Everybody wants to go there.
25 So lets go there.
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1 It says, I have reviewed all
2 available records...
3 Is that--is that you personally?
4 A Yeah, I believe I did.
5 Q Okay.
6 ...that CertainTeed has pertaining
7 to the purchase or sale of asbestos cement siding
8 and sheet products, including (1) existing
9 purchase ledgers from various CertainTeed roofing
10 plants that show purchases of asbestos cement
11 products from National Gypsum.
12 Which roofing plants?
13 A The only one I can remember is St.
14 Louis, the St. Louis plant.
15 Q All right. So when you say roofing
16 plants, you meant to say roofing plant.
17 MR. EDELL: Its the only one he can
18 remember, he says.
19 A Its the only one I can remember. I
20 just cant remember--
21 Q Did you--
22 A --if there were ledgers for other
23 plants.
24 Q Did you review a ledger that
25 pertained to--to the Southeast?
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1 A I cant recall. If we have one, I
2 would have.
3 Q Well, how are we going to know that
4 when you executed this affidavit whether you
5 actually reviewed roofing ledgers that were
6 relevant to this mans exposure?
7 Is there somewhere you can go look?
8 A Probably not.
9 Q Okay. If there--if--is there a
10 roofing ledger for the Southeast during this
11 period of time?
12 A I dont know. Thats what I dont
13 know.
14 Q Okay. It says--is there a roofing
15 ledger for anywhere on the East Coast from the
16 1950s?
17 A I--I dont know.
18 Q Okay. It says, and (2) CertainTeed
19 dealer price lists showing the asbestos cement
20 board and siding products offered for sale by
21 CertainTeed. Although these records likely are
22 not complete, there are some purchasing records
23 for the 1950s until the 1970s and some purchase
24 lists for the 60s and the 70s.
25 Do you have those--
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1 MS. GEISE: Excuse me, Mr.
2 Placitella. You misread it.
3 MR. PLACITELLA: Okay.
4 A There are some purchasing records for
5 the 50s into the 70s and price lists for the
6 60s and 70s.
7 Q Okay. Where are they located?
8 A At Goodwin Procter.
9 Q Are--can you find them, the ones you
10 relied upon in executing this affidavit?
11 A Yeah, probably.
12 MR. PLACITELLA: All right. I would
13 make a request for those.
14 Q Do any of these dealer price lists or
15 purchase records actually refer to anything before
16 1959?
17 A Im not sure. You quoted my
18 testimony in Rao when I had just looked at those
19 documents and which said 61 or 60. I cant
20 remember.
21 Q Right.
22 A I mean, whatever I said in Rao would
23 be accurate, I believe.
24 Q Okay. You said, At my direction, a
25 legal assistant employed by our outside
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1 counsel...also looked at...available sales
2 records...
3 Whos the legal assistant?
4 A I dont remember who. It was
5 somebody at Goodwin Procter.
6 Q Well, did she prepare a report for
7 you?
8 A Well, not really. The answer was,
9 did you find any--was there any reference to any
10 sales of corrugated, and there wasnt. So
11 thats--you dont really need a report.
12 Q And what period of time do these
13 records refer to? What years?
14 A Again, I think we discussed that this
15 morning at length.
16 For roofing plants, we have--tend to
17 have records from about 1970--
18 Q Okay.
19 A --through the 70s. So--
20 Q Im not trying to be difficult. Im
21 really trying to relate what you said before to
22 whats in here.
23 A Its all the same stuff we covered
24 before, I believe.
25 Q Okay. You indicate in paragraph 6
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1 that youve reviewed depositions and are familiar
2 with testimony in hundreds of cases.
3 What specific testimony or
4 depositions are you referring to in reference to
5 this affidavit, or is that just some general
6 recollection?
7 A Well, its pretty--yes, its clear
8 its just a general recollection. And it says in
9 this period I cannot recall another case where
10 asbestos cement corrugated sheet was identified.
11 Mr. Johnson is now another case.
12 Q So--so if you ever have to execute a
13 similar affidavit, you would have to put in Mr.
14 Johnson in it.
15 A Yes.
16 Q Okay.
17 A And I cant recall if there may have
18 been one or two other cases.
19 Q Okay.
20 MR. EDELL: Plaintiffs counsel
21 voluntarily dismissed their claim in the
22 Wagers case.
23 MR. PLACITELLA: This will not. This
24 plaintiffs counsel will not. Dont count
25 on it.
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1 MR. EDELL: I would suspect not.
2 MR. PLACITELLA: Okay.
3 The plaintiffs counsel dismissed
4 their case--I dont even want to go there.
5 Q When--you said that when you were
6 sued by Mr. Wagers, thats when you commissioned
7 your investigation. Correct?
8 A Yes.
9 Q Okay. But that was really for
10 exposures in the 60s and the 70s. True?
11 A Well, thats what that case
12 involved.
13 Q Right. Youve never--youve never
14 really investigated what you sold in the 50s.
15 Correct?
16 A No. We were trying to investigate
17 did we ever sell that product, because thats what
18 we were going to say in this affidavit, and thats
19 what we were going to have to change our
20 interrogatory answers.
21 So, you know, we tried to make a
22 complete investigation. Theres more sources of
23 information as you get into the 60s and 70s--
24 Q All right.
25 A --than there is for the 50s.
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1 Q You didnt put in this affidavit that
2 there are no records that exist from any source
3 concerning the purchase or sale of corrugated
4 asbestos cement board during the 1950s. True?
5 MR. EDELL: Objection to the form of
6 the question.
7 Thats not correct.
8 A No, because--
9 MR. EDELL: Thats not accurate.
10 A That would be wrong. Weve talked
11 about these purchase ledgers for the St. Louis
12 plant.
13 Q Oh, other than the purchase ledgers
14 that dont apply to New Jersey, you didnt put
15 anything in here about the fact that there are no
16 records from the 1950s, other than the purchase
17 ledgers from St. Louis, which dont apply to the
18 case that you executed the affidavit in. True?
19 MR. EDELL: I object to the form of
20 the question.
21 I dont think--
22 A Thats still not accurate, because
23 there are references in annual reports and similar
24 kinds of documents which is part of how we tried
25 to piece together our involvement with asbestos
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1 cement products, and they dont mention corrugated
2 either.
3 Q Okay.
4 A Is that definitive?
5 No.
6 Q Okay. So lets just be clear,
7 because I thought I had it clear this morning,
8 until you pulled out this affidavit.
9 You have no sales records or purchase
10 records other than some records in St. Louis
11 pertaining to the sale of asbestos cement board by
12 CertainTeed during the 1950s. True?
13 A I think thats correct.
14 Q Okay. Do you know who Joseph Volk
15 is?
16 A Yes.
17 Q Who is he?
18 A He worked--he was a National Gypsum
19 employee in our research department.
20 Q Scientist?
21 A I dont know if you would really call
22 him a scientist, but he was a technical guy.
23 Q Did he have low-level or high-level
24 exposure to asbestos, in your estimation?
25 A It probably wasnt that high. But I
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1 dont remember what--what he did at the beginning
2 of his job. It might have been higher level.
3 Q Do you know what products he tested?
4 A I--I really dont know his whole
5 career. He would have done asbestos cement
6 products on occasion, Im sure.
7 Q All right. And you know that the
8 scientist that tested the asbestos cement products
9 for National Gypsum, Joseph Volk, died of
10 mesothelioma?
11 Did you know that?
12 A No, I didnt know that.
13 Q You actually represented him at
14 depositions from time to time. Correct?
15 A I might have. I probably did.
16 Q But you did not know until now that
17 the person who was actually testing these products
18 died from mesothelioma?
19 A No. I dont know why I had it in my
20 head that he had laryngeal cancer. But--
21 Q I can represent to you that he died
22 from mesothelioma, because hes my client.
23 MR. EDELL: Is this a promo?
24 Q As you sit here today, have you told
25 me about all information in your possession
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1 relating to the sale or nonsale of asbestos
2 corrugated siding by CertainTeed during the
3 1950s?
4 A I think so.
5 Q And when Mr. Edell said that he had
6 proof he was going to show the jury that Mr.
7 Johnson was wrong, can you tell me what that proof
8 is?
9 A No more than the items set forth in
10 this affidavit and what weve discussed today.
11 MR. EDELL: No. He and I didnt
12 discuss what proof I was going to offer.
13 MR. PLACITELLA: Okay. Thats all
14 the questions I have.
15 THE WITNESS: Maybe he has some good
16 proof--
17 MR. PLACITELLA: Well, maybe hell
18 let us in on it some day.
19 Thank you very much.
20 THE VIDEOGRAPHER: Off the video
21 record at 3:38.
22 (Off the record.)
23 THE VIDEOGRAPHER: Back on the video
24 record at 3:39.
25
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1 EXAMINATION
2 BY MS. IPPOLITO:
3 Q Hi, Mr. Blakinger. My name is Lauren
4 Ippolito. I represent Prudential Insurance
5 Company. I just have a few quick questions for
6 you.
7 Are you aware if CertainTeed products
8 were ever present at a Prudential work site?
9 A I dont think I have any knowledge
10 one way or the other.
11 MS. IPPOLITO: Okay. Thats all I
12 have.
13 THE VIDEOGRAPHER: Off the video
14 record at 3:39.
15 (The videotaped deposition of Charles
16 B. Blakinger, Esq., concluded at 3:39 p.m.)
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1 C E R T I F I C A T E
2 I, EDWIN SILVER (Certificate No.
3 XI00379), Certified Court Reporter and Notary
4 Public of the State of New Jersey, do hereby
5 certify that prior to the commencement of the
6 examination CHARLES B. BLAKINGER, ESQ., was duly
7 sworn by me to testify the truth, the whole truth
8 and nothing but the truth.
9 I DO FURTHER CERTIFY that the
10 foregoing is a true and accurate transcript of the
11 testimony as taken stenographically by and before
12 me at the time, place and on the date hereinbefore
13 set forth.
14 I DO FURTHER CERTIFY that I am
15 neither a relative nor employee nor attorney nor
16 counsel of any of the parties to this action, and
17 that I am neither a relative nor employee of such
18 attorney or counsel, and that I am not financially
19 interested in the action.
20
21
22 ----------------------------------------
23 Notary Public of the State of New Jersey
24 My Commission expires January 12, 2013
25 Dated: January 10, 2010