Mesothelioma Deposition
DAP Executive Admits Asbestos Knowledge, No Testing and No Warnings in New Jersey Mesothelioma Case
DAP was a manufacturer of asbestos containing caulk and spackle products. A DAP executive was questioned extensively about his companys knowledge of the dangers of asbestos and what it did in response to protect consumers. Below is his testimony.
THE VIDEOGRAPHER: Todays
2 deposition will be video recorded. We are now on
3 the record in the matter of Johnson versus DAP
4 Products, Inc. et all. Todays date is January 13,
5 2010. The time is approximately 10:10 a.m. This is
6 the deposition of Ward Treat from DAP being taken at
7 offices of Segal, McCambridge, 15 Exchange Place,
8 jersey City, New Jersey. My name is Gerard Genna.
9 The court reporter is Marc Brody from Brody
10 Deposition. All appearances will be notied in the
11 transcript. Please administer the oath.
12
13 W A R D T R E A T 2375 Banyon Drive, Dayton,
14 Ohio
15 MS. PLACITELLA: Im Rachel
16 Placitella. It is my understanding that appearing
17 today at the deposition is Timothy Krippner, an
18 attorney, and also Jennifer Hally, who is an
19 attorney admitted in the State of New Jersey.
20 I understand there will be a motion to admit
21 Mr. Krippner pro hac vice. However, that motion has
22 not been filed yet. I have not received a copy of
23 that motion.
24 MS. HALLY: The
25 motion has been filed. You were provided a copy by
2
1 e-mail.
2 MS. PLACITELLA: I didnt
3 receive a copy as of yet. When was it filed?
4 MS. HALLY: Last Wednesday.
5 MS. PLACITELL: It is
6 returnable on the 22nd?
7 MS. HALLY: Yes. It was
8 nunc pro tunc.
9 MS. HALLY: I understand
10 that.
11 MS. PLACITELLA: Mr. Krippner,
12 since you have not been admitted pro hock as of yet,
13 I just wanted you to know for the record that I
14 dont have an objection to your defending the
15 depositions today. I am assured Mrs. Hally has
16 explained to you the rules governing the admission
17 pro hac. Is that correct?
18 MR. KRIPPNER: She has
19 MS. PLACITELLA: And she
20 explained the court rules regarding the taking of
21 depositions, which is 4:14-
22 MR. KRIPPNER: I believe she
23 has. Thank you.
24
25 Q. Mr. Treat, my name a Rachel Placitella.
3
1 I represent Mr. and Mrs. Johnson in connection with
2 a lawsuit thats been filed in the State of New
3 Jersey, and I understand that you are here today on
4 behalf of DAP. Is that correct, sir?
5 A. Yes.
6 Q. Have you ever had your deposition taken
7 before?
8 A. Yes.
9 Q. Is it fair to say that Mr. Krippner and
10 Ms. Hally have explained to you the rules regarding
11 the taking of depositions in the State of New
12 Jersey? I dont have to go over that, do I, sir?
13 A. They have provided me with an adequate
14 understanding of the rules. Im not sure it is all
15 the rules.
16 Q. Great. Can you give me some of your
17 personal background. I understand you presently
18 live in Dayton, Ohio. Have you lived in Ohio your
19 whole life, sir?
20 A. No.
21 Q. Where are you originally from?
22 A. Ohio. I lived in different cities. I
23 went to school at Colorado for four years. Majority
24 of my life I lived in Dayton, Ohio.
25 Q. Is it fair to say you attended college in
4
1 Colorado?
2 A. Yes.
3 Q. What was the name of the college?
4 A. Used of Colorado.
5 Q. Is that at Boulder?
6 A. Yes.
7 Q. And you left? What was your degree, under
8 graduate degree?
9 A. Chemistry.
10 Q. Did you go to any further schooling after
11 the University of Colorado?
12 A. Yes.
13 Q. Let me backtrack. Was that a BA?
14 A. Bachelor of Sciences. Bachelor of Arts.
15 Q. What further schooling did you go to after
16 you graduated from Colorado?
17 A. I attended the Ohio State University,
18 Wright State University, Sinclair College.
19 Q. Lets do it one at a time, please. Ohio
20 State. How long did you attend Ohio State for?
21 A. Approximately three years.
22 Q. Did you graduate from a program at Ohio
23 State or did you leave prior to graduating, prior to
24 receiving a degree?
25 A. I was not enrolled in a degree program. I
5
1 worked up there at the research foundation, I took
2 several courses along with that employment.
3 Q. Did you take courses full time for three
4 years or was that part time?
5 A. Part time.
6 Q. Part time three years. And what courses
7 did you take? You dont have to give me every
8 course. Was there a specific subject matter you
9 concentrated on in your courses?
10 A. They were concentrated in biochemistry.
11 Q. Did you attend any schooling after Ohio
12 State?
13 A. Yes.
14 Q. What school was that?
15 A. Wright State University.
16 Q. How do you spell in?
17 A. W R I G H T.
18 Q. Wright State, is that in Ohio, too?
19 A. Yes.
20 Q. How long did you attend that school, that
21 univeristy?
22 A. I took -- I took courses there for several
23 years. Probably five or six years.
24 Q. You enjoyed school. Is that fair to say,
25 sir? Thats great.
6
1 What courses did you concentrate on? Was
2 there a subject matter you concentrated on when you
3 attended Wright State?
4 A. Yes.
5 Q. What was that?
6 A. I concentrated on computer sciences.
7 Q. Is that when you had the big cards you had
8 to go with computer science?
9 A. Yes.
10 Q. After Wright State did you attend
11 schooling at any other location?
12 A. Yes.
13 Q. Where was that?
14 A. Sinclair.
15 Q. Is that in Ohio, too?
16 A. In Dayton.
17 Q. Is it Sinclair College or University?
18 A. Sinclair College.
19 Q. What courses did you take there?
20 A. I specialized in quality.
21 Q. What is quality?
22 A. Quality control.
23 Q. How many courses did you take at Sinclair
24 College or about how long a period of time did you
25 take courses there?
7
1 A. Approximately two years. Approximately
2 five courses.
3 Q. Did you attend school at any other
4 location?
5 A. The Ohio University.
6 Q. Thats different than Ohio State?
7 A. Yes, maam.
8 Q. What courses did you take at Ohio
9 University?
10 A. Psychology.
11 Q. How long did you study at Ohio University?
12 A. 3/4 s.
13 Q. 3/4s of one year?
14 A. Yes.
15 Q. Did you attend school at any other
16 location?
17 A. No.
18 Q. Thats all? Thats a joke.
19 At these schools I understand you took
20 courses in different subject matter that obviously
21 must have interested you. Did you obtain any post
22 graduate degrees or graduate degrees?
23 A. No.
24 Q. Can you give me the benefit of your your
25 work history, please? What was the first full-time
8
1 job that you had?
2 A. First full-time job I had was working with
3 the Ohio State University Research Foundation.
4 Q. That was full time, sir?
5 A. Yes.
6 Q. What years did you work there?
7 A. Estimate. 1967 to 1972 or 73.
8 Q. Your next job in 1972 or 1973, sir?
9 A. 1973 I went to work for DAP, Incorporated
10 in Dayton, Ohio.
11 Q. How long did you work for DAP?
12 A. Approximately 17 years.
13 Q. That was until 1990?
14 A. Yes.
15 Q. Did you have any full time employment
16 after you left DAP in 1990?
17 A. Yes.
18 Q. Where did you work then?
19 A. I worked for Present Match, Incorporated.
20 Q. Present Match, Incorporated?
21 A. Yes.
22 Q. What did you do at Present Match,
23 Incorporated?
24 A. Computer programer.
25 Q. Nice to know the benefit of all that
9
1 schooling paid off, right? Did you work -- what
2 type of company was Present Match, Incorporated?
3 A. Present Match wrote software for the
4 multiple listing systems.
5 Q. This was a full time position?
6 A. Yes.
7 Q. How long did you work for Present Match?
8 A. Five and a half years.
9 Q. That brings you up to almost 1996?
10 A. Nineteen -- yes.
11 Q. Did you have any full-time employment in
12 1996?
13 A. No.
14 Q. Did you have any part time employment in
15 1996?
16 A. Yes.
17 Q. What was that, sir?
18 A. I worked for Katco, Inc.
19 Q. Can you spell that?
20 A. K A T C O.
21 Q. What type of company is Katco,
22 Incorporated?
23 A. They do -- make modems and I did cadcam
24 work.
25 Q. What is that?
10
1 A. Computer work.
2 Q. How long did you work for them part time
3 starting in 1997?
4 A. Approximately four years.
5 Q. Until about the year 2000?
6 A. Yes.
7 Q. Did you have any full time or part time
8 employment start in the year 2000?
9 A. No.
10 Q. You have been retired since 2000?
11 A. Approximately, yes.
12 Q. Did you do anything with your psychology
13 courses?
14 A. I taught school.
15 Q. You left that out. Where was that, sir?
16 A. Cracksville.
17 Q. Is that a --
18 A. Thats a town.
19 Q. What school did you teach in?
20 A. Cracksville High School.
21 Q. How long did you teach for, sir?
22 A. One year.
23 Q. What years did you go to the university of
24 Colorado?
25 A. 1962 through 1966.
11
1 Q. When did you first learn about asbestos?
2 A. Could you rephrase the question, please?
3 Q. When did you first learn about asbestos,
4 what asbestos was? What year?
5 A. Im not sure exactly how to respond to
6 that. When I was a newspaper carrier when I was 12
7 years old I bought a pair of boots and they
8 impressed upon me they had asbestos soles and heels
9 on them. Thats the first time I ever heard about
10 asbestos.
11 Q. What year were you 12 years old?
12 A. 1956.
13 Q. Did you learn about asbestos in all the
14 different chemistry and biochemistry courses you
15 took in school?
16 A. No.
17 Q. You never learned what asbestos was?
18 A. Thats correct.
19 Q. Now, can you explain to me the
20 circumstances under which you came to testify today
21 on behalf of DAP, Incorporated?
22 A. I was contacted by the defense attorneys
23 approximately a year and a half ago and they
24 informed me they needed somebody who was at DAP and
25 was familiar with the product formulations to work
12
1 as a corporate representative.
2 Q. Who was the person that contacted you,
3 sir?
4 A. Tim Krippner.
5 Q. And that is the person to your left,
6 correct?
7 A. That is correct .
8 MS. PLACITELLA: Mark these P-1 A, B and
9 C.
10 (The above documents are marked P-1 A, B
11 and C.)
12 Q. Im going to show these to you as a group
13 which we marked as P-1 A, B and C. Can you look at
14 those and tell me if you have ever seen those
15 documents before?
16 A. Yes.
17 Q. So, regarding documents 1-A, are you aware
18 that you are being produced today as the person with
19 the most knowledge concerning the use of
20 asbestos-containing products in DAP caulk sold or
21 manufactured by this defendant?
22 A. Yes.
23 Q. Regarding P-1 B, are you aware that you
24 are being produced today as the person with the most
25 knowledge concerning the testing done by DAP or on
13
1 behalf of DAP to determine whether asbestos fibers
2 are released upon the installation, removal or
3 repair of DAP caulk sold or manufactured by this
4 defendant?
5 A. Yes.
6 Q. Regarding P-1 C, are you aware that you
7 have been designated as the person by DAP as the
8 person with the most knowledge concerning DAPs
9 historical knowledge of the dangers of asbestos?
10 A. Yes.
11 Q. Did you prepare at all for the deposition
12 today, sir?
13 A. Yes.
14 Q. What did you do to prepare for todays
15 deposition?
16 A. I looked at some of the depositions that
17 Mr. Johnson had made.
18 Q. Can I interrupt you for one moment?
19 Mr. Johnson, there were numerous deposition
20 transcripts from Mr. Johnson. Do you know which
21 ones you reviewed?
22 A. No.
23 Q. How many did you review?
24 A. There was at least one.
25 Q. At least one?
14
1 A. Yes.
2 Q. You reviewed at least one deposition
3 transcript of Mr. Johnson. Did you do anything else
4 to prepare for todays deposition?
5 A. We reviewed some of the formula cards.
6 Q. Who is we, when you say we?
7 A. Tim Krippner and Jim Schwagel.
8 Q. Can you tell me his last name?
9 A. Not without some help.
10 Q. Repeat it again?
11 A. Jim Schwagel.
12 Q. Who was Jim Schwagel?
13 A. An attorney.
14 Q. Is he an attorney for DAP, Incorporated?
15 A. He is an attorney with Segal, McCambridge.
16 Q. You reviewed some formulation cards and
17 you reviewed at least one deposition transctript of
18 Mr. Johnson. Did you do anything else to prepare
19 for todays deposition?
20 A. Probably did, but it doesnt stand out
21 right now. Those are the two main things we did.
22 Q. Did you have an occasion to speak with any
23 current employees of DAP?
24 A. No.
25 Q. Did you have an occasion to speak with any
15
1 former employees of DAP?
2 A. No.
3 Q. Did you request to review any documents in
4 preparation for todays deposition?
5 A. No.
6 Q. Were you given any documents to review in
7 preparation for this deposition?
8 A. Yes.
9 Q. What were you given?
10 A. Several formula cards of some of the DAP
11 products.
12 Q. Did you conduct any investigation in
13 preparation for todays deposition?
14 MR. KRIPPNER: Objection to the form of
15 the question.
16 Q. Did you do anything other than look at the
17 formulation cards and speak with the attorneys?
18 A. No.
19 Q. Do you know why you were selected as the
20 person with the most knowledge in the various
21 subject matters we discussed?
22 MR. KRIPPNER: Objection to the form of
23 the question.
24 A. I can only speculate why I was selected.
25 I dont know. Nobody has come to me saying we
16
1 selected you because. I was there, I worked on the
2 formulation. What their specific reason for
3 selecting me, I dont know.
4 Q. Do you know the formula cards you said you
5 reviewed, do you know where did you get those from?
6 A. I got those from the office of Segal,
7 McCambridge.
8 Q. You indicated when we started this
9 deposition that you have testified previously before
10 today.
11 A. Yes.
12 Q. Did you testify in a matter in the same
13 capacity as you are today as a representative of DAP
14 or was it in a different area?
15 A. It was in the same area.
16 Q. When did you testify, and that was as a
17 corporate representative as well, sir?
18 A. Yes.
19 Q. When was this deposition?
20 A. Earlier part of the year. I cant give
21 you the exact date unless I refer to documents.
22 Q. Was it the early part of 2010 or --
23 A. I stand corrected. Early part of 2009.
24 Q. In what jurisdiction was the case
25 docketed, do you know, sir?
17
1 A. It is my understanding it was is San
2 Francisco.
3 Q. Did you travel to San Francisco for that
4 deposition, sir?
5 A. Yes.
6 Q. Have you testified any other time other
7 than sometime in 2009 in San Francisco?
8 A. No.
9 Q. This is the second time that have ever
10 testified on behalf of DAP?
11 A. Yes.
12 Q. Have you ever testified in any other
13 capacity in any other matter in a deposition other
14 than today and San Francisco?
15 A. No.
16 Q. Have you ever testified in a trial?
17 A. No.
18 Q. Are you paid for your services today, sir.
19 A. Yes.
20 Q. What is the compensation you that you have
21 agreed to?
22 A. $100 an hour.
23 Q. And about how many hours did you spend in
24 preparation for todays deposition?
25 A. Approximately five or six hours yesterday.
18
1 Q. Is that it totally for this case?
2 A. Yes.
3 Q. Your compensation request to DAP will be
4 four or five hours yesterday and the time you spend
5 today in the deposition. Is that fair to say?
6 A. There will be other miscellaneous
7 expenses, transportation and things like that.
8 Q. I understand.
9 A. Being paid for the testimony. Thats it.
10 Q. Im just talking about the time, not
11 expenses. Is that fair to say it would be four or
12 five hours yesterday and then again today?
13 A. Yes.
14 Q. When you were originally contacted by
15 Mr. Krippner and/or Miss Hally to testify for the
16 deposition, were there extensive conversations at
17 that time that you would be billing DAP for?
18 A. No.
19 Q. When you retired from DAP, did you receive
20 a retirement package?
21 A. Yes.
22 Q. As part of your retirement package did you
23 receive any profit sharing?
24 A. No.
25 Q. No profit sharing?
19
1 A. Thats correct.
2 Q. Did you receive a pension?
3 A. Yes.
4 Q. Did you receive any benefits other than
5 the pension? Any health benefits?
6 A. No.
7 Q. Any insurance?
8 A. No.
9 Q. Life insurance?
10 A. No, sir.
11 (P-2 marked for identification)
12 Q. You should have come to me. I would have
13 negotiated this.
14 Im going to show you what was marked
15 P-2 for Identification. This is an outline, Form B
16 Interrogatories.
17 Could you please review that with counsel.
18 Q. Thats your copy to review. That is the
19 one that will be marked. Im going to draw your
20 attention to the last page of this document.
21 I see that it is a verification of Ward
22 Treat. Is that your signature, sir?
23 A. Yes, Maam.
24 Q. And I understand you signed this document?
25 A. Yes.
20
1 Q. Im going to read section Number 5. That
2 says while I dont have personal knowledge of all
3 the facts recited in the responses, they are true to
4 the best of my knowledge, information and belief,
5 subject to inadvertent errors and limited by
6 information not in possession or undiscovered.
7 Did I read that correctly?
8 A. Yes.
9 Q. Thats part of your verification ,
10 correct?
11 A. Yes.
12 Q. Now, Im going to draw your attention to,
13 on the same last page, section number 4 indicates
14 that this Form B Interrogatories have been prepared
15 in the William Gadek, Jr. case. Is that true, sir?
16 A. Yes.
17 Q. Just for your information, sir, these
18 Answers to Interrogatories were served upon myself
19 as Plaintiffs counsel in connection with this case,
20 the Johnson case, as it is my understanding that the
21 same Interrogatories applied to the Johnson case as
22 the Gadek case.
23 Were you aware of that when you were
24 prepared for todays deposition?
25 MR. KRIPPNER: Objection to the form of
21
1 the question.
2 MS. PLACITELLA: To what extent?
3 MR. KRIPPNER: To the extent that I
4 couldnt really follow it, so to the form of it and
5 because I felt it stated a legal exclusion.
6 MS. PLACITELLA: Lets have a
7 conversation. These interrogatories were served in
8 this case, correct?
9 MS. HALLY: they are standard Middlesex
10 County interrogatories.
11 MS. PLACITELLA: I want to understand
12 that at this point I can rely upon these
13 interrogatories in the Johnson matter. Thats all I
14 want to clarify with counsel. Is that correct?
15 MS. HALLY: Thats correct. To the extent
16 they are standard Answers to Interrogatories.
17 MS. PLACITELLA: Thats acceptable. I
18 have no objection to that. I want to make sure that
19 the witness understands that these Interrogatories
20 are used in this case even though it says Gadek?
21 Q. Can you explain to me the Interrogatories
22 show they were certified on November 14, of 2008.
23 Is that correct, sir?
24 A. Thats correct.
25 Q. Can you explain to me the circumstances
22
1 under which you verified these Interrogatories? Do
2 you understand my question?
3 A. No.
4 Q. Let me be a little clearer. How did you
5 come to receive these Interrogatories that you
6 reviewed prior to signing them? Did they come to
7 you in paper form already filled out?
8 A. The document came in an e-mail, I would
9 read it, verify it, sign the verification document.
10 Q. And when you read the Interrogatories did
11 you read them from your computer or did you print
12 them out in read them in paper form?
13 A. I printed them out.
14 Q. Did it come with a blank verification page
15 prepared and then all you had to do was sign it and
16 date it?
17 A. I signed it and dated it, sent an e-mail
18 copy of it back and sent the original back to the
19 offices by regular mail.
20 Q. When you sent the original back did you
21 send just the verification page or the whole
22 document you printed out?
23 A. Just the verification page.
24 Q. I understand that you signed this
25 particular one on November 14th. Have you verified
23
1 any other Interrogatories on behalf of DAP other
2 than this particular set?
3 A. Yes.
4 Q. About how many verifications have you
5 signed?
6 A. I dont know the exact number, but I would
7 say approximately 50.
8 Q. When did you begin reviewing the
9 Interrogatories and signing verifications?
10 MR. KRIPPNER: Objection to the form of
11 the question. Do you mean this set or in general?
12 Q. When you mentioned you had reviewed and
13 signed 50 Interrogatories, do you recall when the
14 first one you signed was around, what year or what
15 date?
16 A. It would have been 2008.
17 Q. Around 2008 you signed the first one, so
18 between 2008 and today it was about 50. Is that
19 fair to say?
20 A. Approximately.
21 Q. Were you made aware that since New Jersey
22 has standard Interrogatories that the defendant uses
23 in different cases in New Jersey, that your
24 verification and review of Interrogatories were
25 going to be used in more than one case?
24
1 A. No.
2 Q. You were not aware of that before today?
3 A. Thats correct.
4 Q. When you verified the approximately 50
5 Interrogatories before this one, did you review them
6 all in the same manner that you just testified to?
7 MR. KRIPPNER: Objection to the form of
8 the question.
9 Q. Let me rephrase. In other words, you
10 testified you got the Interrogatories on the
11 computer in the form of e-mail, you printed them
12 out, the Interrogatories came with the verification
13 page, you reviewed the Interrogatories, you signed
14 the verification page, scanned it and mailed back
15 the verification page or no?
16 A. Yes, thats correct.
17 Q. You also made a paper copy of only the
18 verification page back. Is that fair to say?
19 A. Yes.
20 Q. Did you do the same procedure in all the
21 Interrogatories, around 50 or so, that you had
22 verified before this one?
23 MR. KRIPPNER: Objection to the form of
24 the question.
25 A. Some of them required notarization. Had
25
1 to do the same thing, take them over to the notary,
2 scan the notarized document, send that back by.
3 mail and send the original back by regular mail.
4 Q. Other than having to have your signature
5 notarized would you say the procedure you utilized
6 was fairly the same in all the Interrogatories you
7 verified?
8 A. Yes.
9 Q. In the 50 or so Interrogatories that you
10 had verified, other than the case in San Francisco,
11 that you already testified you sat for deposition,
12 did you do any other work regarding those 50
13 Interrogatories that you had verified?
14 A. No.
15 Q. In those 50 Interrogatories basically your
16 work stopped after you signed the verification and
17 sent it back. Is that fair to say?
18 A. No.
19 Q. What additional work did you do, sir?
20 A. The documents specific to a particular
21 case, I might get several different documents down.
22 Each document would be read and the verification
23 would be signed and that would be processed in the
24 same way.
25 Q. Let me see if I understand what you are
26
1 saying. In the cases you signed verification, they
2 may ask you additional questions you had to review
3 and verify. Is that what you are saying?
4 A. Yes.
5 Q. Did you ever, in those 50 occasions or so,
6 have to produce any documents or review any
7 documents?
8 MR. KRIPPNER: Objection to the form of
9 the question.
10 Q. Did you have to go and review formula
11 cards or conduct any research yourself in any of
12 those 50 cases?
13 A. No.
14 Q. In those 50 cases you had verified and
15 that you had reviewed and verified Interrogatories,
16 were you paid by DAP in the same manner that you
17 have in this case which is $100 an hour?
18 A. Yes.
19 Q. In 2008 can you give me an estimate of how
20 much money you billed to DAP for your services?
21 A. I can give you an approximation.
22 Q. Okay.
23 A. I didnt do very many cases. It was maybe
24 a couple thousand dollars.
25 Q. A couple thousand. We will say in the 50
27
1 cases you reviewed and verified interrogatories
2 Interrogatories, about how much time would you spend
3 on each set of Interrogatories?
4 A. Depended on the size of the
5 interrogatores. 2some I would spend 20 minutes,
6 some I would spend an hour, hour and a half on.
7 Depends on how big they were.
8 Q. The Interrogatories you would review, were
9 the questions that were asked similar to the ones
10 presented before you as P-2 for identification?
11 A. I cant answer that without specific
12 reference to the documents. They look approximately
13 the same as many I have seen, but I cant say
14 specifically they were identical.
15 Q. Im not asking if they are identical, but
16 is it fair to say that the questions that the
17 Interrogatories ask are similar?
18 A. I believe they are.
19 Q. Im going to ask you first about P-2 for
20 identification. When you read P-2 for
21 Identification were there any answers in the
22 prepared document you reviewed that you did not
23 agree with?
24 A. I cant say without reference to the
25 corresponding evaluation that went along with it.
28
1 Q. Is it fair to say that in this particular
2 document, P-2 for Identification, that you sent
3 e-mails back and forth regarding specific answers?
4 A. Could you rephrase that question, please?
5 Q. I asked you if you made any changes to the
6 answers that were presented in this document and you
7 had indicated that you cant say for sure without
8 looking at what had transpired. I dont understand.
9 Can you explain what that means?
10 A. I would review a document. If there were
11 any changes or corrections that needed to be made,
12 then I would fill outs a -- Ill spend them an
13 e-mail and say I suggest you make these changes.
14 Q. Did you do that in this case?
15 A. I dont know. I would have to go back and
16 review the e-mail that went along with this.
17 Q. Was it common for you to suggest changes
18 to be made to the document?
19 MR. KRIPPNER: Objection in terms of the
20 document that was produced now. I dont think you
21 have the right to inquire as far as his
22 communications with counsel.
23 I think it is privileged. Im going to
24 object to the form of the question to the extent you
25 are asking for specific communications with counsel.
29
1 Do you want the question read back?
2 MS. PLACITELLA: II understand your
3 objection. I dont think it is privileged. I think
4 I have a right to ask him since he verified the
5 Interrogatories, he routinely accepted the Answers
6 as written or if he suggested changes.
7 MR. KRIPPNER: I think you have asked him
8 that and I think he answered.
9 MS. PLACITELLA: I didnt get an answer
10 to routinely. Then I will not go any further.
11 Q. Can you answer the question?
12 A. Is the question did I recommend any
13 changes made in these documents on a routine basis?
14 Q. Yes.
15 A. I would say in substance, no. I didnt
16 object to any of the questions, of the responses.
17 They were more grammatical, mispelling of terms.
18 Things of that nature.
19 Q. Lets go to B36, which is page 14. Can
20 you go to that, sir.
21 The question reads when was the first time
22 the defendant became aware of or knowledgeable of
23 any disease or illness associated with or causally
24 related to the inhalation of asbestos, asbestos
25 fibers or asbestos dust in any form whatsoever?
30
1 Indicate which disease defendant became aware of and
2 describe how defendant became aware of alleged
3 relationship to inhalation or exposure to asbestos.
4 Im not going to have you read the answers
5 to every question. I would like you to read the
6 responses to this particular question. Read it out
7 loud, sir?
8 A. Response?
9 Q. Yes.
10 MR. KRIPPNER: Objection to the form of
11 the question.
12 Q. You can answer.
13 A. Defendant incorporates by reference herein
14 the foregoing preliminary statement and general
15 objections. Without waiver of, and subject to its
16 objections, DAP responds as following. Defendant
17 subjects to this interrogatory on the grounds it
18 seeks information not reasonably calculated to lead
19 to the discovery of admissible evidence, vague,
20 overly broad, requires an expert medical opinion and
21 is beyond the scope of this defendants knowledge
22 and expertise and calls for expert opinion.
23 Defendant further objects because this interrogatory
24 is argumentative to the extent thatit presumes the
25 use of its products at issue presented a danger to
31
1 end users. Defendants asbestos products were wet
2 and gooey products that contained encapsulated
3 chrysotile asbestos and any alleged hazard is the
4 subject matter of this litigation. Subject to and
5 without waiver any objections, wavering any
6 objections, defendant was aware in the 1970s that
7 asbestos exposure might be hazardous to human
8 health.
9 Q. Who prepared that particular answer?
10 MR. KRIPPNER: Objection to the form of
11 the question.
12 A. It came from the law offices of Segal
13 McCambridge. I dont know who prepared the
14 responses.
15 Q. It is fair to say you didnt prepare that
16 response?
17 A. Thats correct.
18 MR. KRIPPNER: Objection to the form of
19 the question.
20 A. Thats correct.
21 Q. You can answer.
22 A. Thats correct.
23 Q. Do you recall if you had any changes or
24 suggestions regarding this answer?
25 MR. KRIPPNER: Objection to the form of
32
1 the question.
2 Q. You can answer the question?
3 A. No.
4 Q. Now, you had indicated in your
5 verification that the answers are true to the best
6 of your knowledge, information and belief, subject
7 to inadvertant errors.
8 How is this answers true to the best of
9 your knowledge, sir?
10 MR. KRIPPNER: Objection to the form of
11 the question. States legal conclusions.
12 A. Could you restate that? I dont
13 understand the question.
14 Q. The verification you signed.
15 A. Yes.
16 Q. Regarding all the answers in this document
17 says, the answers are true to the best of your
18 knowledge, information and belief.
19 Can you explain to me how this answer is
20 true to the best of your knowledge?
21 MR. KRIPPNER: Objection to the form of
22 the question. States a legal conclusion.
23 A. I was employed by DAP to work in their
24 laboratory and my function was to reformulate
25 products that had asbestos fiber in it.
33
1 I was familiar with the formulations and
2 one of the documents that they had was OSHA
3 specifications that came out in the early 1970s, and
4 it states that prolonged inhalation of high
5 concentrations of asbestos fiber may be harmful to a
6 persons health.
7 Q. So then is it fair to say that if you were
8 to clarify the answer to this question you would say
9 in the early 70s. Is that fair to say?
10 MR. KRIPPNER: Objection to the form of
11 the question.
12 A. Yes.
13 Q. Okay. So lets put in the. Early 70s.
14 Because you agree with me 1970s, that is have a very
15 long period. Thats a whole decade. So to narrow
16 it down, you would narrow it down to the early 70s?
17 Correct?
18 MR. KRIPPNER: Objection to the form the
19 question.
20 A. I started working at DAP in 1973 and the
21 project was to remove the asbestos fiber and this
22 document was available. I had a copy copy of the
23 document. The document came out in the early 70s
24 before I started to work.
25 Q. Right. Thank you. Lets go back to B6.
34
1 The question in B6 on page number 6, Has defendant
2 been a member of or affiliated with any trade groups
3 professional associations or organizations. The
4 answer is that, defendant was a member of the
5 National Paint and Coatings Association.
6 Is that correct, sir?
7 MR. KRIPPNER: Objection to the form of
8 the question. Mistates the document.
9 Q. Did I read that correctly?
10 A. You read it correctly.
11 Q. Do you have any personal knowledge that
12 defendant was, that DAP was a member of the National
13 Paint and Coatings Association?
14 A. Yes.
15 Q. What is your personal knowledge?
16 A. Personal knowledge is seeing an award that
17 the paint group, and the paint group is entirely
18 different from the adhesives and sealant group, the
19 paint group received an award and I remember seeing
20 the award.
21 Q. Let me see if I understand. The National
22 Paint and Coatings Association has a paint group and
23 DAP received an award from that subsidiary group of
24 that organization. Is that a what you mean?
25 A. Yes.
35
1 Q. Do you know what year that was?
2 A. No.
3 Q. We will go back to B6. I didnt ask you
4 specifically. You started in 1973 with DAP,
5 correct?
6 A. Yes.
7 Q. What was your first position that you held
8 with DAP?
9 A. Research chemist.
10 Q. How long were you a research chemist?
11 A. Approximately four years.
12 Q. To about 1977?
13 A. Yes.
14 Q. What did you do as a research chemist?
15 A. Reformulated products.
16 Q. Formulated products. Do you mean that you
17 formulated the inagreedients that went into a
18 particular DAP product?
19 MR. KRIPPNER: Objection to the form of
20 the question. I think he said reformlated.
21 Q. I didnt hear you. Did you say you
22 reformulated products?
23 A. Yes.
24 Q. What does reformulated mean?
25 A. If they had a product that they wouldnt
36
1 get a raw material for any more, it was my job to
2 reformulate the product with new raw materials.
3 Q. Reformulate. What products did you
4 reformulate from 73 to 77?
5 MR. KRIPPNER: Objection to the form of
6 the question to the extent it goes beyond the rider
7 of the deposition. You can answer.
8 MS. PLACITELLA: General background.
9 A. Caulks and puttys basically.
10 Q. What was the ingredient that you were
11 unable to get that you had to reformulate the caulks
12 and puttys?
13 A. There were some products that -- the
14 question specifies products that were reformulated
15 because we couldnt get raw materials for them.
16 Q. What was the raw material you could not
17 get for the caulks and puttys?
18 A. There could have been many things. Could
19 have been cobalt dryers, soy been oil. Im not sure
20 thats exactly it.
21 Q. What you are saying is were there times
22 that you had to do a temporary formula change if you
23 didnt have a specific raw ingredient at hand when
24 you had to make a specific caulk and putty?
25 A. Thats correct.
37
1 Q. It was not necessarily that you were
2 unable to get that product permanently. Is that
3 fair to say?
4 A. Do you mean the raw material?
5 Q. Yes. I dont think I understand what you
6 are saying then?
7 A. I dont understand what the question is.
8 Q. Was did you soy what?
9 A. Soy bean oil.
10 Q. If you were out of soy bean oil and the
11 shipment was not going to come in for a period of
12 time?
13 A. Yes.
14 Q. Is that what we are speaking about, that
15 you would reformulate a formula using a
16 substitute?
17 A. Yes.
18 Q. Now, were you involved with the
19 reformulation of the caulks when asbestos was no
20 longer available as a raw ingredient?
21 MR. KRIPPNER: Objection to the form of
22 the question.
23 A. There was no time thatasbestos was not
24 available, so the question is not clear to me.
25 Could you rephrase that?
38
1 Q. So was there a time when a decision was
2 made to take asbestos out of the caulks and putty?
3 A. Yes.
4 Q. Were you involved in reformulating the
5 formulas to find a substitute for asbestos?
6 A. Yes.
7 Q. And that would be in the latter part of
8 your position as a research chemist, correct?
9 A. No.
10 Q. So were you involved in reformulating the
11 product line regarding no asbestos in the formula in
12 the early part of your years as a research chemist?
13 A. Yes.
14 Q. So when did you start that process?
15 A. 1973, latter part of 1973.
16 Q. In 77, what was your position at DAP?
17 A. I was either a research chemist or a
18 senior chemiist.
19 Q. Were your jobs as a senior chemist any
20 different from that of a research chemist or your
21 job description?
22 A. No. Im sure there were some differences,
23 but essentially my function was the same.
24 Q. Were you a senior chemist until you
25 retired?
39
1 A. No.
2 Q. What was your next position in the
3 company?
4 A. Well, I was assistant quality control
5 manager and I was a technical support specialist at
6 certain times during my employment with DAP.
7 Q. Im sorry, technical --
8 A. Support specialist.
9 Q. Was that the position you held upon
10 retirement, technical support specialist?
11 A. Yes.
12 Q. You said the duties as senior chemist was
13 similar to research assistant. Maybe some
14 additional duties. You were involved in the
15 reformulation of the product line?
16 A. Yes.
17 Q. What were your duties as an assistant
18 quality control manager, sorry?
19 A. Base overall management of the quality of
20 the products.
21 Q. What does that involve?
22 A. It involved making sure that all of the
23 plants had proper quality control people, that the
24 products met quality control specifications.
25 Q. Did you travel to all the plants that DAP
40
1 owned in your position as assistant quality control
2 manager?
3 A. On a routine basis I traveled to half of
4 them. The quality control manager had the other
5 half.
6 Q. What half did you have? Did you have the
7 east coast and he had the west coast? How was it
8 divided?
9 A. It would vary. Sometimes he would take
10 the west coast and I would take the east. Next year
11 I would take the west coast and he would take the
12 east coast.
13 (Recess taken)
14
15 Q. Before the break, Mr. Treat, you were
16 telling me about the positions that you had at DAP.
17 You said the last one was technical support
18 specialist?
19 A. Yes.
20 Q. What did you do as a technical support
21 specialist?
22 A. It entailed programing a computer system
23 for the laboratory and maintained it.
24 Q. Going back to B6, you had said that you
25 were familiar with the National Paint and Coatings
41
1 Association because of an award that DAP had
2 received, correct?
3 A. Yes.
4 Q. Were you aware that the National Paint and
5 Coatings Association had published bulletins they
6 sent to its members?
7 MR. KRIPPNER: Objection to the form of
8 the question. Lacks foundation.
9 A. Yes.
10 Q. How are you familiar with that?
11 A. It was, DAP got this award. It was
12 announced in this publication and they Xeroxed the
13 announcement and passed it around to the lab.
14 (P-3 marked)
15 Q. Im going to show you what has been marked
16 as P-3. for Identification, and as you can see up on
17 the screen it is safety and health bulletin for the
18 National Paint and Coatings Association. The date
19 is July 19, 1972.
20 Do you see the date of July 19, 1972?
21 A. Yes.
22 Q. And there is a section of this bulletin on
23 employee exposure to asbestos. Do you see that,
24 sir?
25 A. Yes.
42
1 Q. Had you seen this document?
2 MR. KRIPPNER: Objection to the form of
3 the question. Lack of foundation for this document.
4 So I wont have to say it for every question.
5 Q. Did you have occasion to see this bulletin
6 as an employee of DAP?
7 A. No.
8 Q. You had indicated that you were aware that
9 bulletins were mailed to its members, correct?
10 MR. KRIPPNER: Objection to the form of
11 the question. Lack of foundation.
12 Q. Lets turn to B10 on your Answers to
13 Interrogatories. The same page, bottom of page 6.
14 The question is, Has your company ever been a member
15 of or been affiliated with or provided funding for
16 the IHF, or Industrial Hygiene Foundation.
17 Do you know the answer to that question,
18 sir?
19 MR. KRIPPNER: Objection to the form of
20 the question.
21 MS. HALLY: Are you asking him to read
22 back his response to B10?
23 MS. PLACITELLA: I asked him what his
24 answer was.
25 A. Yes, I guess.
43
1 Q. Are you aware of whether DAP was a member
2 of the IHF?
3 A. There are no documents or other
4 information in defendants position that indicated
5 any membership, affiliation with the Industrial
6 Hygiene Foundation.
7 Q. As a chemist are you familiar with the
8 Industrial Hygiene Foundation?
9 A. No.
10 Q. You never heard of the Industrial
11 Hygiene --
12 A. I heard of it only by reference to this
13 documents.
14 Q. Could you explain the corporate
15 relationship that DAP had, who owned DAP? DAP was a
16 wholely owned subsidiary of another corporation
17 while you were an employee of DAP,?
18 MR. KRIPPNER: Objection to the form of
19 the question. Foundation, relevance.
20 You can answer.
21 A. It had several owners during the time I
22 was employed there.
23 Q. The first owner when you first started
24 working, it was owned by Schering-Plough. Is that
25 correct?
44
1 A. Thats correct.
2 MR. KRIPPNER: Objection to the form of
3 the question. Can I have a running objection to
4 revelance?
5 MS. PLACITELLA: No, you cant. You have
6 to object if it is a form objection with each
7 question.
8 MR. KRIPPNER: Okay.
9 Q. During your tenure at DAP, DAP was a
10 wholely owned subsidiary of Schering-Plough
11 Corporation, correct?
12 MR. KRIPPNER: Objection to the form of
13 the question, relevance and states a legal
14 conclusion.
15 A. Yes.
16 Q. And at some point DAP, I mean
17 Schering-Plough, sold DAP to Beacham. Is that
18 correct?
19 A. Yes.
20 MR. KRIPPNER: Objection to the form of
21 the question on the grounds of relevance and I want
22 to note thatthis is outside the scope of the notice
23 that was provided to us for this matter.
24 MS. PLACITELLA: Counsel, I dont see how
25 the corporate structure of DAP is irrelevant. That
45
1 belies me. It is absolutely relevant.
2 MR. KRIPPNER: Do you want me to answer?
3 I think the corporate structure at DAP could be
4 relevant. Whether or not DAP was a wholly-owned
5 subsidiary of someone else or not is completely
6 irrelevant unless you can demonstrate some piercing
7 of the corporate vail or some basis for relevance,
8 so Im going to object to it. I dont think it has
9 any relevance to the matters at hand. I think most
10 of the corporate transactions you are going to be
11 talking, if you are going to talk about them, are
12 legal transactions. Theres no notice to set up an
13 opportunity for the witness to be prepared and is
14 generally outside the scope of his expertise.
15 MS. PLACITELLA: We can take a break and
16 I can bring in, which I didnt think there was going
17 to be an issue, I can bring the minutes of DAPs
18 corporate board of directors meetings that indicate
19 that Schering-Plough had representatives on DAPs
20 board of directors meetings.
21 MR. KRIPPNER: That doesnt -- I dont
22 know if that is relevent to the issue of your
23 clients claim.
24 MS. PLACITELLA: I understand your
25 objection. Ill continue to ask my questions.
46
1 Q. You were aware Beacham owned DAP strike
2 that -- at some point in time, sir, are you aware
3 that DAP was sold to Beacham?
4 A. Yes.
5 MR. KRIPPNER: Objection to the form of
6 the question. It is vague and states legal
7 conclusions.
8 MS. PLACITELLA: I understand.
9 MR. KRIPPNER: Im stating my objection.
10 Q. There came a point in time when Beacham
11 sold DAP to U.S. Gypsum?
12 MR. KRIPPNER: Objection to the form of
13 the question. States legal conclusions and is
14 vague.
15 A. Yes.
16 Q. At the time you retired from DAP, who was
17 the owner of DAP?
18 MR. KRIPPNER: Objection to the form of
19 the question. Vague and seeks legal conclusions.
20 A. U.S.G..
21 Q. During the time you worked for DAP, who
22 signed your paychecks?
23 MR. KRIPPNER: Objection to the form of
24 the question. Vague as to time and place.
25 A. Who signed?
47
1 Q. When you first started working for DAP,
2 did you say 1973?
3 A. Yes.
4 Q. Did DAP sign your paychecks or did
5 Schering-Plough sign your paychecks?
6 A. DAP did.
7 Q. Did you have any interaction with
8 Schering-Plough?
9 A. No.
10 Q. Did Schering-Plough ever come to any DAP
11 meetings?
12 A. They didnt come to any meeting that I was
13 aware of or involved in.
14 Q. Did they ever come and inspect any plants?
15 MR. KRIPPNER: Objection to the form of
16 the question, vague.
17 Q. Did a representative from Schering-Plough
18 ever come to inspect or ask for a tour of any of
19 DAPs plants?
20 MR. KRIPPNER: Objection to the form of
21 the question. Vague. You can answer.
22 A. They might have, but Im not aware of any
23 specific departments where someone from
24 Schering-Plough came to visit the plants.
25 Q. Did you ever sit on the board of directors
48
1 of DAP?
2 A. No.
3 Q. Did you ever have any contact with any
4 representative from Schering-Plough?
5 A. No.
6 Q. Did your bosses ever have any contact with
7 a representative of Schering-Plough?
8 MR. KRIPPNER: Objection to the form of
9 the question. Vague.
10 A. Not that I know of.
11 Q. Did you have any personal knowledge that
12 DAP was a wholly-owned sub of Schering-Plough when
13 you commenced working for DAP in 1973?
14 MR. KRIPPNER: Objection to the form of
15 the question. Statets a legal conclusion.
16 A. Can you rephrase?
17 Q. Did you have any personal knowledge? You
18 said you knew DAP owned -- that DAP was owned by
19 Schering-Plough when you started at DAP in 1973.
20 How did you know that?
21 A. One of the employees told me. It was just
22 a matter in passing.
23 Q. Was it ever discussed in any of your
24 meetings at DAP?
25 MR. KRIPPNER: Objection to the form of
49
1 the question. Vague.
2 A. No.
3 Q. Were you aware that Schering-Plough was a
4 member of the Industrial Health Foundation in 1976?
5 MR. KRIPPNER: Objection to the form of
6 the question. Vague and clearly irrelevant. That
7 wasnt enough for establish a foundation. I think
8 you have established the opposite. I believe
9 Schering-Plough and what Schering-Plough did is not
10 the subject matter of the notice. He hasnt been
11 evaluated or prepared for this deposition.
12 After consultation with counsel Im most
13 likely going to instruct him not to answer. This is
14 not -- you didnt sue Schering-Plough.
15 Schering-Plough is not properly before the issues.
16 Not a party to the case or the issues before
17 Mr. Treat.
18 This is outside the scope of the notice
19 presented. Unless theres some case you might have
20 noticed or some foundational basis set forth to go
21 into this, it is my inclination not to go into
22 Schering-Plough.
23 MS. PLACITELLA: Are you done?
24 MR. KRIPPNER: I think Im done.
25 Q. You were not aware that Schering-Plough
50
1 was a member in 1976 of the IHF. Is that correct?
2 MR. KRIPPNER: Im going to instruct him
3 not to answer the question.
4 MS. PLACITELLA: Im entitled to a
5 little latitude. It is only a couple of questions.
6 MR. KRIPPNER: You are specifically
7 asking him about a company that is not at issue in
8 this case with no foundation to do so with no notice
9 to us to understand that this would be part of the
10 scope of the deposition. Agree or disagree, Im
11 going to have to instruct him not to answer
12 questions of that nature.
13 MS. PLACITELLA: Counsel, Im going to
14 draw your attention to rule 4:4-C that states
15 subject to rule 4:14-4, an attorney shall not
16 instruct a witness not to answer a question unless
17 the basis of the objection is privilege, a right to
18 confidentiality or a limitation pursuant to a
19 previously entered court order.
20 Now, relevancy is not one of the stated
21 objections. Im entitled to a little latitude,
22 counsel.
23 MR. KIPPNER: I did --
24 MS. PLACITELLA: Now, wait a second. Im
25 not done. Are you telling me that the basis for
51
1 your objection is privilege?
2 MR. KRIPPNER: Im not here to answer
3 your questions.
4 MS. PLACITELLA: Are you telling me the
5 basis of your objection is confidentiality or a
6 limitation to a court order?
7 MR. KRIPPNER: I stated the basis of my
8 objection.
9 MS. PLACITELLA: You have no right to
10 instruct the witness not to answer the question.
11 MS. HALLY: He does if the question is
12 completely outside the scope --
13 MS. PLACITELLA: You are not allowed to
14 speak at this deposition. Only one attorney can
15 speak. Okay? So, Im going to state my -- I want
16 the court, I want the record to reflect that the
17 witness was instructed not to answer the question
18 and I would like to have a listing in the front of
19 the transcript.
20 Q. Now, were you aware that the IHF, or the
21 Industrial Health Foundation had published bulletins
22 on a regular basis, on a monthly basis?
23 A. No.
24 Q. So you were not aware that the Industrial
25 Hygiene Foundation had published bulletins that
52
1 frequently dealt with the issue of the dangers of
2 asbestos?
3 MR. KRIPPNER: Objection to the form of
4 the question
5 A. Could you restate that?
6 Q. You werent aware, sir, the Industrial
7 Health Foundation published bulletins frequently on.
8 the dangers of asbestos?
9 A. Thats correct.
10 Q. Do you agree with me that DAP
11 architectural caulk contained asbestos?
12 MR. KRIPPNER: Objection to the form of
13 the question . Vague as to place and time.
14 A. Prior to 1978 it did.
15 Q. And as you can see thats DAP
16 architectural gun grade caulk compound and
17 indicating it contained asbestos fibers. Thats
18 correct, sir?
19 A. Yes.
20 MR. KIPPNER: Are you asking him to look
21 at this board over here? If we are going to put
22 documents on the board, I would like them marked and
23 part of the record. I would like him to have an
24 opportunity to review them as well as counsel before
25 present it to the witness.
53
1 (P-5 for marked identification)
2 MR. KIPPNER: What was P-4?
3 MS. PLACITELLA: The listing of
4 Schering-Plough in the IHF.
5 MR. KIPPNER: I didnt see that.
6 Q. Did you see the second page which I will
7 identify as P-6?
8 A. Yes.
9 (P-6 marked for identification)
10 Q. Regarding P-6, which is up on the screen,
11 DAP technical bulletin, do you know who prepared
12 this document?
13 A. No.
14 Q. And do you know what the document was
15 used for?
16 A. Technical data bulletin. It is given to
17 anybody that requests one.
18 Q. Who would request one?
19 A. People that were going to use the product.
20 Q. Would it be a consume who would call up
21 and ask for the document? How would it be
22 deseminated to the consumer?
23 MR. KRIPPNER: Objection to the form of
24 the question The question is his leading.
25 Q. How the would a consumer get this
54
1 document?
2 MR. KRIPPNER: Objection to the form of
3 the question. States legal conclusions.
4 MS. PLACITELLA: How does that state a
5 legal exclusion?
6 MR. KIPPNER: A consumer is a
7 specifically defined legal term that is applicable
8 in certain circumstances and that is a legal
9 conclusion.
10 Q. For puroses of this deposition, Im going
11 to use the term consumer, Mr. Treat, and Im going
12 to use the consumer for purposes of this deposition
13 is going to be a consumer is a person that goes into
14 a store and purchases a DAP product, okay?
15 When I say how would a consumer, thats
16 what I mean. How would a consumer get this
17 technical DAP technical bulletin?
18 A. They would need to call the company and
19 the company would send them one --
20 Q. Is DAP required to prepare a technical
21 bulletin regarding every product they manufacture
22 and sell?
23 MR. KRIPPNER: Objection to the form of
24 the question. Vague as to time and place.
25 A. Im not aware of any specific regulations
55
1 that require them to prepare these documents.
2 Q. Did DAP prepare a technical bulletin for
3 every product that it manufactured and sold?
4 MR. KRIPPNER: Objection to the form of
5 the question. Beyond the scope of the deposition.
6 You can answer.
7 A. They prepared them for most of them. I
8 cant guarantee all products had technical data
9 bulletins.
10 Q. When did DAP first start selling caulk,
11 based upon your knowledge?
12 A. Based upon my knowledge, back in the
13 1950s.
14 Q. And when did DAP start selling
15 architectural caulk?
16 A. Back in the 1950s.
17 Q. And as far as you know, back in the 1950s
18 the products contained asbestos. Is that correct?
19 A. Thats correct.
20 Q. You testified at the beginning of the
21 deposition you reviewed at least one transcript
22 regarding Mr. Johnsons deposition testimony. That
23 is correct?
24 A. Thats correct.
25 Q. In your review of Mr. Johnsons deposition
56
1 transcript, were you aware that Mr. Johnson
2 testified that he used DAP architectural caulk
3 numerous times?
4 A. I would have to review the documents.
5 Seems to be theres a little bit of ambiguity as to
6 what product he was using. Seems to me he said DAP
7 and that was it, but I would have to review the
8 documents to make sure of the accuracy of my
9 response.
10 Q. I know that you probably have reviewed
11 many different items, but for the purpose of this
12 deposition Im going to tell you that Mr. Johnson
13 identified DAP architectural caulk.
14 Do you have any documents that you can
15 produce to me today to dispute Mr. Johnsons
16 testimony in that regard?
17 MR. KRIPPNER: Objection to the form of
18 the question.
19 A. No.
20 Q. In your review of Mr. Johnsons deposition
21 were you aware that Mr. Johnson testified that he
22 had used DAP on a regular basis with trim and in
23 putting up sealing?
24 MR. KRIPPNER: Objection to the form of
25 the question.
57
1 Q. Are you aware of that, sir?
2 A. My best recollection, thats what the
3 document said.
4 Q. When Mr. Johnson was questioned about the
5 procedure in using the product, he testified that he
6 would use a caulking gun with the DAP architectural
7 caulk. Are you aware of that, sir?
8 MR. KRIPPNER: Objection to the form of
9 the question.
10 Q. Do you recall that?
11 A. I recall him saying he used a caulking
12 gun.
13 Q. Are you also aware that Mr. Johnson
14 testified that after he put the caulk in the
15 particular location he wanted to, he would use his
16 finger to move it along the process of the area
17 where he wanted the caulk to go? Were you aware of
18 that, sir?
19 A. Yes.
20 Q. He also testified that the cauling product
21 would dry on his hands and clothing. Do you recall
22 that in your review of his testimony?
23 A. Yes.
24 Q. Are you aware tha he testified that he
25 would have to brush it off of his clothing and his
58
1 hands?
2 A. Yes.
3 Q. Do you have any documents that you can
4 produce to me today to dispute Mr. Johnsons
5 testimony in this regard?
6 MR. KRIPPNER: Objection to the form of
7 the question. Vague.
8 Q. Mr. Johnson also testified tha he often
9 sanded the DAP product after it dried on trim.
10 Did you read that in his deposition
11 transcript, sir?
12 A. Yes.
13 Q. Do you have any documents to produce today
14 that can disprove Mr. Johnsons testimony in that
15 regard?
16 MR. KRIPPNER: Objection to the form of
17 the question. Vague and argumentative.
18 A. No.
19 Q. The sanding of the DAP product, after it
20 was dried on wood trim, are you aware that was a
21 practice used among carpenters?
22 A. No.
23 Q. When was the first time that you learned
24 that carpenters, such as Mr. Johnson, sanded the DAP
25 product after it dried?
59
1 MR. KRIPPNER: Objection to the form of
2 the question. Lacks foundation.
3 A. It is not my experience that any
4 carpenters ever sanded any DAP architectural
5 caulking. The first references Ive seen to it was
6 in the deposition which I saw yesterday.
7 Q. Lets go back. So you were not made aware
8 by any attorney or representative of DAP that there
9 was a contention made by any plaintiff that the
10 caulk product was sanded before you read
11 Mr. Johnsons testimony?
12 MR. KRIPPNER: Objection to the form of
13 the question. Dont answer any questions that
14 relate to your communications with counsel for DAP.
15 And I object to the remainder of the question. It
16 is argumentative and it has been asked and answered.
17 Q. Were you ever made aware from anyone that
18 carpenters such as Mr. Johnson have sanded the DAP
19 product?
20 MR. KRIPPNER: Objection to the form of
21 the question. Vague as it relates to the DAP
22 product.
23 A. No.
24 Q. So this was a surprise to you then, sir?
25 A. Thats correct.
60
1 Q. Lets go to B24. Can you review the
2 question and answer?
3 A. The question is prior?
4 Q. Review to it yourself. Make it easier.
5 The question pertained to prior to 1964.
6 Did DAP do any test or studies or are you aware of
7 any studies or tests done by others concerning the
8 potential effects of the inhalation of asbestos dust
9 or fibers by anyone exposed to asbestos?
10 So the question is were you aware of
11 DAP -- did DAP do any studies or tests prior to
12 1964? Are you aware of any tests or studies DAP
13 did?
14 A. Im not aware of any.
15 Q. Then regarding B25, prior to 1964, did DAP
16 conduct any experiments with laboratory animals to
17 determine whether the asbestos-containing DAP
18 products were potentially hazardous to the health of
19 workers? Were you aware of I such tests done?
20 A. No.
21 Q. Regarding B26, since 1964 has DAP done
22 any study or tests regarding the effects of the
23 inhalation of asbestos dust or fibers by a DAP
24 product? Were you aware of any such tests done by
25 DAP?
61
1 A. No.
2 Q. Regarding B27, since 1964 did DAP conduct
3 any laboratory experiments with animals to determine
4 whether the DAP products containing asbestos were
5 potentially hazardous to those that used it? Were
6 you aware of any such tests?
7 Q. Regarding B28, prior to 64 did DAP ever
8 go out to construction sites, factories to determine
9 where DAP product was being used to determine the
10 levels of asbestos dust that were created by the use
11 of its products?
12 MR. KRIPPNER: Objection to the form of
13 the question. The question she asked you, can you
14 answer?
15 A. Im not aware of any.
16 Q. Since since 1964 are you aware if DAP ever
17 went to work sites to determine the effects on the
18 people using the DAP products?
19 MR. KRIPPNER: Objection to the form of
20 the question.
21 Q. Strike that.
22 Since 1964 are you aware of whether or not
23 DAP ever went do a work site to determine the levels
24 of exposure to asbestos dust that individuals
25 encountered and then used a DAP asbestos-containing
62
1 product?
2 A. Im not aware of any.
3 Q. Do you know as a representative of DAP
4 why DAP did not conduct any tests?
5 MR. KRIPPNER: Objection to the form of
6 the question.
7 Q. As a representative of DAP do you know
8 why DAP never conducted any tests regarding the
9 effects of. -- strike that.
10 As a representative of DAP, do you know
11 why the company did not do any testing to determine
12 the levels of asbestos dust that were eminated from
13 the use of asbestos-containing DAP caulk?
14 MR. KRIPPNER: Objection to the form of
15 the question. Lacks foundation, argumentative.
16 A. There was never any reason to.
17 Q. Who made that determination in the DAP
18 Corporation?
19 MR. KRIPPNER: Objection to the form of
20 the question. Vague as to time and place.
21 A. DAP asbestos fiber was encapsulated in all
22 of the products that it was used in and never
23 emitted any asbestos fiber.
24 Q. How did DAP know that it never emitted any
25 asbestos dust or fiber?
63
1 A. Well, if it did emit dust or fiber, then
2 there would have been plenty of people to tell DAP
3 about it.
4 Q. Thats not my question. Can you answer
5 that question?
6 Please read the question..
7 (The above question is read by the
8 reporter)
9 A. You are talking about a certain time
10 period.
11 Q. Any time period.
12 A. Any time period?
13 Q. When asbestos was in the product.
14 A. There was no indication that any of the
15 DAP products emitted asbestos fiber.
16 Q. If there was no microscope testing of any
17 sort, how did DAP know there was no emission of
18 asbestos dust or fiber from using the product?
19 A. They knew because there were no complaints
20 about asbestos fiber or dust emitted.
21 Q. Are you aware that mesothelioma has a
22 latancy perior of 20 to 40 years?
23 MR. KRIPPNER: Objection to the form of
24 the question. No foundation. Outside of the scope
25 of the deposition notice.
64
1 Q. It is the DAP position because there were
2 no complaints about asbestos dust being emitted from
3 the product, that no tests were performed?
4 MR. KRIPPNER: Objection to the form of
5 the question. Answered three times.
6 A. There were no complaints. Theres no
7 indication from any governmental agency that we
8 ought to be aware of that. If there was a problem
9 there with asbestos emination from any of the DAP
10 products, then we would know about it.
11 Q. Are you aware, sir, as a chemist, that
12 asbestos dust may not be visible to the human eye?
13 A. Yes.
14 Q. Are you aware, sir, that because asbestos
15 dust is not visable to the human eye, that when dust
16 counts are done they are done under a microscope?
17 MR. KRIPPNER: Objection to the form of
18 the question. Lacks foundation.
19 Q. You can answer the question.
20 A. Would you restate the question?
21 Q. Are you aware that because asbestos dust
22 may not be visible to the human eye that when dust
23 counts are performed, they are performed by the use
24 of a microscope?
25 A. Yes.
65
1 Q. So it is fair to say then that since
2 asbestos dust is not visible to the human eye that
3 asbestos dust may very well be in the air and not be
4 visable, correct?
5 MR. KRIPPNER: Objection to the form of
6 the question. Argumentative, lacking foundation.
7 Q. You can answer the question.
8 A. Would you restate that, please?
9 Q. Did DAP ever include any warnings
10 regarding the dangers of asbestos on its
11 architectural caulk?
12 A. There was never any danger in using caulk
13 because of the asbestos fiber content, so there were
14 no warnings. There was no need to to have a
15 warning.
16 Q. And the fact that you state there was no
17 danger to the use of the product, even throw it
18 contains asbestos, was a decision that DAP made,
19 correct?
20 MR. KRIPPNER: Objection to the form of
21 the question. Vague as to time and place, nature of
22 warning. You can answer.
23 A. Can you restate that?
24 Q. You say there was no warning put on the
25 product because it was not a danger.
66
1 A. Yes.
2 Q. DAP made that determination, correct?
3 A. DAP labeled all of their products in
4 specific compliance with the Consumer Products
5 Safety Council and the Consumer Products Safety
6 Council never specified a warning for asbestos fiber
7 in the DAP products.
8 Q. Right, but that decision not to put a
9 warning on, was a decision that DAP made as a
10 corporation. Is that fair to say?
11 A. I dont think it is an accurate
12 representation of the process that evolved.
13 Q. If a warning was put on a particular
14 product, who would be the person to prepare the
15 warning?
16 A. It was done in the laboratory and then it
17 was -- after reference to the Consumer Products
18 Safety Commission.
19 Q. Isnt it fair to say that DAP, as a
20 corporation, made the decision as to what warnings
21 to put on a particular product and what warnings not
22 to put on a particular product?
23 A. Well, DAP labeled all the products
24 according to specific governmental guidelines.
25 Asbestos was never indicated as a raw material that
67
1 needed to have a warning specifically on any of the
2 DAP products.
3 Q. By who?
4 A. By the Consumer Products Safety
5 Commission.
6 Q. And when was that?
7 A. Well, as long as C.P.S.C has been in
8 existence, all products were taken, all the raw
9 materials were gone through, the CPSC regulations
10 were consulted and then the appropriate information
11 was put on each one, appropriate contents were put
12 on each one, appropriate warning labels were put on
13 each one of the products.
14 Q. Do you believe that as a corporate
15 representative of DAP, do you believe DAP has a duty
16 to test the product to make sure it is safe?
17 MR. KRIPPNER: Objection to the form of
18 the question. States a legal conclusion. It is a
19 legal term.
20 A. It is a legal term.
21 Q. Im asking you as a representative of DAP,
22 do you believe that DAP has an obligation to its
23 consumers to test a product to be sure it is safe?
24 MR. KRIPPNER: Objection to the form of
25 the question. Vague as to time and place, product.
68
1 Q. Very simple question, sir.
2 MR. KRIPPNER: Objection to the form of
3 the question.
4 A. They had an obligation to comply with all
5 federal guidelines.
6 Q. Do you believe a manufacturer has a duty
7 to test its products to make sure it is safe for its
8 consumer?
9 MR. KRIPPNER: Objection to the form of
10 the question. It states legal conclusions, opinion
11 testimony from a witness without basis and is vague
12 as to what companies you are talking about, when and
13 how the legal standard applies to it.
14 MS. PLACITELLA: Are you done?
15 Q. Could you answer the question sir? It is
16 a yes or no. Do you believe that a corporation has
17 a duty -- Do you believe that a manufacturer of a
18 product has a duty to test the product to make sure
19 that it is safety for its consumers?
20 MR. KIPPNER: Same objections.
21 A. We have --
22 Q. This is just a yes or a no.
23 A. Im asking --
24 MR. KIPPNER: Answer the question the
25 way --
69
1 Q. It calls for a yes or no.
2 A. I cant answer it yes or no. It is a
3 conditional response. We have labels on our
4 products that say harmful or fatal if swallowed.
5 Q. Im not talking about that. Im just
6 talking about testing. Do you believe that a
7 corporation has a duty to test a product to make
8 sure it is safe for its consumers?
9 MR. KRIPPNER: Objection to the form of
10 the question. Time and place. Vague as to what
11 type of test. Seeks expert opinions about the
12 standards in the manufacturing community.
13 A. I cant give you an answer to that.
14 Q. You cant answer that simple question?
15 MR. KIPPNER: Argumentative. Dont
16 answer.
17 Q. Do you believe that an honest and
18 forthright person can answer a simple question yes
19 or no?
20 MR. KIPPNER: Dont answer that question.
21 It is argumentative. Dont answer it.
22 Q. Do you believe that a consumer, when it
23 buys a product, has a right to assume that the
24 product was tested and is safe when it takes it off
25 the shelf?
70
1 MR. KRIPPNER: Objection to the form of
2 the question. Vague as to time and place. States
3 multiple legal standards.
4 A. I cant answer that. I can give you
5 reasons why, but I cant answer that specific
6 question.
7 Q. You cant answer that simple yes or no?
8 A. Thats correct.
9 MR. KIPPNER: Objection. Argumentative.
10 Q. We will continue. You had indicated that
11 you were aware that Mr. Johnson testified that the
12 caulking product would dry on his hands and clothes
13 and that he would brush it off?
14 A. Yes.
15 Q. With his hands?
16 A. Yes.
17 Q. And are you aware that Mr. Johnson said
18 that when he brushed the caulking product off of his
19 hands and clothes that it was crumbly and dusty?
20 A. Yes.
21 Q. Do you have any documents to disprove
22 Mr. Johnsons testimony in that regard?
23 MR. KRIPPNER: Objection to the form of
24 the question. Vague and argumentative.
25 A. No.
71
1 Q. So, since you are aware that asbestos
2 fibers are measured with microscopes -- can be
3 measured with microscopes, because the dust may ot
4 be detectable with the human eye, how do you know
5 that the process of brushing off the dry DAP product
6 did not create asbestos dust?
7 MR. KIPPNER: Objection. Lacks
8 foundation, form.
9 A. I dont know that it didnt and I dont
10 know that it did.
11 Q. Right. You dont know.
12 MR. KIPPNER: Objection. Argumentative.
13 A. Right.
14 Q. How does a consumer of a DAP caulking
15 product take off dried, excess caulking product off
16 of trim?
17 MR. KRIPPNER: Objection to the form of
18 the question. Vague as to time.
19 Q. Any time that the DAP product is being
20 used from the 50s to the 90s.
21 A. A DAP product?
22 Q. No. Lets talk about a DAP caulking
23 product or a DAP sealant product. How does the
24 consumer take off dried excess DAP off of trim?
25 A. Well, the DAP caulk in particular doesnt
72
1 dry for many years. So, if you are taking it off a
2 trim you probably would get a chissle or a
3 screwdriver and remove it. It would come out until
4 big chunks.
5 Q. In other words, it can be scraped off as
6 well, correct?
7 MR. KRIPPNER: Objection to the form of
8 the question.
9 A. Are you talking about old, cured caulk?
10 Q. No. Im not talking about when you are
11 taking it down. Im talking about you put up trim,
12 whether it is outside -- you are cauling trim
13 outside or inside, whatever kind of caulk or
14 sealants you are using and it is dried and your
15 product is finished and you see excess DAP product
16 on the trim. How do you get that off?
17 A. The caulk per se forms a skin. It doesnt
18 really dry out for many, many, many years. So Im
19 not sure exactly what you are asking. Typically a
20 person wouldnt touch the caulk after it has been
21 extruded from a caulking gun.
22 Q. Well, it is visible to the eye and you
23 have excess dried caulk on the trim, how do you get
24 it off?
25 A. Well, like I said, it doesnt dry for
73
1 many, many years. If you have excess caulk there
2 you take a putty knife and scrape it off, if you
3 want. Typically you dont touch the caulk after you
4 applied it.
5 MS. PLACITELLA: Mark this is 6.
6 (The above document is marked P-6)
7
8 Q. P-6 for Identification, DAP, How to Caulk
9 Exterior Windows. Do you see it up on the screen,
10 sir, your counsel has a copy of it?
11 MR. KRIPPNER: Objection to the form of
12 the question.
13 MS. PLACITELLA: What do you object to?
14 MR. KRIPPNER: You are asking him a
15 question that references what his attorney is doing
16 and --
17 MS. PLACITELLA: No, that was --I was just
18 commenting.
19 MR. KRIPPNER: I was just objecting.
20 Q. May I continue, counsel?
21 MR. KRIPPNER: I just want to take a
22 look at the document, please.
23 Objection to the use of the document.
24 Looks like a 2010 document. Has this been produced?
25 MS. PLACITELLA: May I continue?
74
1 MR. KRIPPNER: I dont know. I dont
2 know what this documents is. It appears to be a
3 document that relates to today.
4 Q. Mr. Treat, this is a printout of DAPs
5 website, www.Dap.com, How to Caulk Exterior Windows.
6 ASPX. The part at the bottom 1-7-2010 is when I
7 took it off of my computer.
8 Can you review that document for a
9 movement, sir.
10 A. Ive nerve seen this document before. It
11 was not in existence when I worked at DAP. Ill be
12 glad to review it for you.
13 Q. Thank you.
14 MR. KRIPPNER: Objection to the
15 document. It pre-dates the case.
16 Q. It may help if I direct your attention,
17 you see the circles, theres a number of circles and
18 the one -- second from the bottom it says wipe away
19 excess sealant with water and a damp cloth before
20 the sealant dries. Excess dry sealant will need to
21 be cut or scraped away.
22 MR. KRIPPNER: Objection to the form of
23 the question.
24 MS. PLACITELLA: Theres no question. I
25 was reading it, sir, just to show him the part
75
1 thats the question I was going to ask him.
2 Q. Are you aware that on DAPs website
3 regarding caulking product, that it indicates that
4 excess dried sealant would need to be cut or scraped
5 away?
6 MR. KRIPPNER: Objection to the form of
7 the question. Lack of foundations, doesnt apply to
8 the products used in this case.
9 MS. PLACITELLA: Are you objecting to the
10 DAP website?
11 MR. KRIPPNER: Yes, to the extent you are
12 talking about products manufactured in 2010. The
13 allegations in this case were product made 25 years
14 ago.
15 MS. PLACITELLA: I think thats a
16 speaking objection.
17 MR. KRIPPNER: You asked me.
18 MS. PLACITELLA: I want to know if you are
19 objecting to your own website, and I understand you
20 are. Thats okay.
21 MR. KRIPPNER: Im objecting to your use
22 of the documents in this deposition.
23 Q. Is it your testimony that it is an unusual
24 practice to scrape away dried excess sealant --
25 MR. KRIPPNER: Objection.
76
1 Q. Off of window trim, sir?
2 MR. KRIPPNER: Objection to the form of
3 the question. Argumentative. Object to the form in
4 terms of vague as to place and time.
5 You can answer. Put the document down
6 She is not asking you about the document. She is
7 just asking you questions.
8 A. Excess material could be scraped away, but
9 in the course of applying caulk, once you put it
10 down, you dont want to touch it.
11 Q. Are you saying that the website is
12 incorrect when it says that excess sealants could be
13 scraped away?
14 A. No.
15 MR. KRIPPNER: Let me state my objection.
16 Argumentative .
17 Q. You agree with me that excess dried caulk
18 or sealant, after it is applied to trim, can be
19 scraped away? Is that fair to say?
20 A. Yes.
21 Q. Now, Mr. Johnsons testimony is that the
22 excess dried caulking scraped away creates dust. Do
23 you have any documents to present to me today that
24 disproves Mr. Johnsons testimony?
25 MR. KRIPPNER: Objection to the form of
77
1 the question. Vague and argumentative.
2 A. I agree thats his testimony.
3 Q. Do you have any tests results that DAP
4 performed that disproves Mr. Johnsons testimony
5 that the process of scraping away dried excess caulk
6 creates asbestos dust?
7 MR. KRIPPNER: Objection to the form of
8 the question. Argumentative, mistates testimony.
9 Q. I didnt hear your answer. No, is that
10 your answer?
11 A. No.
12 MR. KRIPPNER: Objection to the form of
13 the question. Mistates his testimony and lacks
14 foundation.
15 A. No.
16 Q. So you dont have any test to disprove
17 that theory?
18 MR. KRIPPNER: Objection to the form of
19 the question. Argumentative, asked and answered.
20 Q. Lets reiterate. DAP never conducted
21 tests in the lab to determine whether the wiping off
22 of a dried DAP product on a persons body created
23 asbestos dust, correct?
24 A. Thats correct.
25 Q. And DAP never went to a work site to see
78
1 the carpenters that used the DAP product to
2 determine the amount of asbestos dust that is
3 emitted when a carpenter wipes off excess caulking
4 product from their person, correct?
5 MR. KRIPPNER: Objection. Asked and
6 answered.
7 MS. PLACITELLA: This was about the plant.
8 The second question is the about the work site.
9 MR. KRIPPNER: You already asked him
10 extensively about testing.
11 MS. PLACITELLA: I never asked him about
12 the wiping off of the product at the work site.
13 Q. Ill repeat my question. I dont think
14 you answered it.
15 Is it fair to say that DAP never went to a
16 construction site and tested the carpenters, watched
17 the carpenters who wiped off the dried DAP product
18 from their person, tested the area to determine if
19 they were exposed to levels of asbestos dust?
20 A. Not that Im aware of.
21 MS. PLACITELLA: Lets stop now.
22
23 (Luncheon recess taken)
24
25 Q. Mr. Treat, is it fair to say that DAP did
79
1 not go to construction sites and talk to contractors
2 who used the DAP product regarding whether or not
3 they sanded DAP caulk?
4 MR. KRIPPNER: Objection to the form of
5 the question.
6 A. Not to my knowledge.
7 Q. Are you aware of whether DAP conducted any
8 tests regarding dust that was emanated during the
9 clean-up of the DAP caulk and putty that got on the
10 floor at construction sites?
11 MR. KRIPPNER: Objection to the form of
12 the question.
13 A. Im not aware of any.
14 Q. And are you familiar with the process in
15 which a contractor would clean up the DAP product
16 that dropped on to the floor at a work site?
17 MR,. KRIPPNER: Objection to form.
18 A. I cant speak for a contractor out there.
19 I have no knowledge of what a contractor would do,
20 other than what I do as a do it yourselfer.
21 Q. As a do it yourselfer consumer of a DAP
22 product, how would you remove excess DAP caulk or
23 putty that dropped to the floor during installation?
24 A. Scrape it up with a spatula. If you had a
25 big amount, scrape it up with the flat one.
80
1 Q. Is it fair to say DAP never conducted any
2 test with regard to dust created from the --
3 A. To my knowledge theres never any
4 complaints of any dust emanating from any products,
5 that were used, caulks or puttys.
6 Q. As you testified before about general
7 concepts, that you are aware that any dust, any
8 asbestos dust that may have have been emanated from
9 a clean-up of a DAP caulk on the floor may not be
10 visable to the human eye, correct?
11
12 MR. KRIPPNER: Objection to the form of
13 the question.
14 A. Are you talking about DAP products in
15 general or one specific product?
16 Q. DAP products in general.
17 A. Theres things like spackling compounds,
18 people would clean those up. You may see some dust
19 emanate from that, but caulks or puttys, I cant
20 imagine a situation where there would be dust coming
21 from those.
22 Q. My question is, isnt it fair to say that
23 asbestos dust could be emanated from the removal,
24 the scraping process of removing DAP caulk and if
25 you had putty on a floor, that is not visible to the
81
1 human eye?
2 A. As a hypothetical situation, Ive never
3 seen an instances where any type of clean-up of DAP
4 puttys or caulks has emanated any type of a dust.
5 But I would agree that some dusts are not visible to
6 the human eye.
7 Q. Can you give me a list of the DAP products
8 that you were aware are sanded by consumers?
9 A. I can tell you roughly what they are,
10 approximately.
11 Q. Okay. Which ones?
12 A. Those products would be DAP spackling,
13 DAP auto body filler.
14 Q. Wait a second. Auto body filler?
15 A. Duratite wood dough.
16 Q. What was that?
17 A. Duratite wood dough. And Duratite
18 surfacing putty.
19 Q. Wood gell?
20 A. Wood dough.
21 Q. D O U G H?
22 A. Yes.
23 Q. Like money.
24 A. Like bread.
25 Q. And Durotite --
82
1 A. Surfacing putty?
2 Q. Surfacing putty.
3 Now, what other products --
4 MR. KRIPPNER: counsel, finish your
5 question. Im going to object. Beyond the scope of
6 the notice and the products at issue in this case.
7 Q. Let me ask you this. A carpenter has a
8 hole in a trim caused by either a nail or
9 imperfection in the trim and he uses a caulk or
10 putty to fill in the hole. Isnt that product then
11 sanded?
12 A. Usually scrape it off with the putty
13 knife.
14 Q. To DAPs knowledge, that product is never
15 sanded?
16 MR. KRIPPNER: Objection to the form of
17 the question. Argumentative.
18 A. It is not inconceivable somebody could
19 sand it.
20 Q. So, it is a possibility it can be sanded?
21 A. Yes.
22 Q. And the same thing about the caulking that
23 is put up in the trim around the ceilings. It gets
24 on the trim and it is wood trim. Isnt it possible
25 it could be sanded?
83
1 A. It is not impossible.
2 Q. Are you aware of testimony presented from
3 other plaintiffs in the form of Interrogatories or
4 depositions where they indicated that they sanded
5 DAP caulking products as part of their use of the
6 product, other than Mr. Johnson?
7 A. I looked at a lot of Interrogatories. I
8 dont remember specific instances where people have
9 sanded DAP products, but certain DAP products, like
10 I said, are meant to be sanded.
11 Q. Other than the four you mentioned, are you
12 aware of any plaintiffs that have testified in
13 interrogatories or depositions that they sanded DAP
14 caulk?
15 MR. KRIPPNER: Objection. Asked and
16 answered.
17 A. I dont recall any.
18 Q. These are answers.
19 (Marked P-7)
20 MR. KRIPPNER: This will take me a while
21 to review. It has my signature on it. It would
22 appear to be 100 pages, which Im going to look at.
23
24 Q. I show you whats been marked as P-7 for
25 Identification. These are DAP Interrogatories filed
84
1 in the Circuit Court, Third Judicial Circuit,
2 Madison County, Illinois.
3 If you look at the last two pages of the
4 Interrogatories, they were signed not by you, but by
5 Mr. Krippner, and Im going to draw your attention
6 to page 3 of the Answers to Interrogatories in front
7 of you.
8 If you look at the line that says, the
9 paragraph that says DAP, Inc. caulking compound. Do
10 you see that, sir, and then it gives the summary of
11 the plaintiff in that particular case and the last
12 sentence indicates, if he got some outside the
13 crack, talking about DAP caulking compound, he would
14 sand it.
15 This is an interrogatory regarding another
16 plaintiff who had testified that he had sanded DAP
17 product. Were you aware of this particular
18 interrogatory, sir?
19 A. No.
20 Q. Were you aware of the cases filed in
21 Madison County, Illinois back in 2000?
22 MR. KRIPPNER: Objection to the form of
23 the question.
24 Q. Were you aware of these cases filed in
25 Madison County in 2000?
85
1 A. No.
2 Q. It is my understanding that the Dayton,
3 Ohio plant had a laboratory. Is that correct?
4 A. Yes. Tip City had a plant, too?
5 MR. KRIPPNER: Are you done with this?
6 MS. PLACITELLA: For now. Thank you,
7 yes.
8 Q. Was Tip City in Ohio as well?
9 A. Yes.
10 Q. Where was that plant in relation to
11 Dayton, Ohio?
12 A. About seventeen miles north of Dayton.
13 Q. That Tip City plant had a laboratory as
14 well. Is that correct?
15 A. Thats correct.
16 Q. Are you familiar with an employee of DAP,
17 Donald Montgomery?
18 A. Yes.
19 Q. He was a buyer that worked out of Dayton,
20 Ohio, a buyer for DAP products?
21 A. Purchasing agent, yes.
22 Q. Were you aware that he contracted
23 mesothelioma and apparently gave a deposition in his
24 own case?
25 A. I was aware he contracted mesothelioma. I
86
1 was not aware that he gave a deposition.
2 Q. He testified that there was in the Dayton,
3 Ohio plant and the Tip City plant, that there were
4 small mixers that were used to test products. Is
5 that correct, sir?
6 MR. KRIPPNER: Objection to the form of
7 the question. Is there a transcript here?
8 Objection to the form of the question.
9 MS. PLACITELLA: Ill show you. If there
10 was no objection, I was just going to save time.
11 ( Marked P-8)
12 Q. This is the deposition transcript of
13 Mr. Montgomery.
14 MS. PLACITELLA: Im only going to
15 question him about page 55, in you are interested.
16 MR. KRIPPNER: Ive never seen
17 Mr. Montgomerys testimony before. I dont know of
18 the totality. Im trying to go as quickly as I can
19 to see what he had to say.
20 Q. Mr. Treat, Mr. Montgomery testified that
21 at the Dayton, Ohio and/or the Tip City plants there
22 were small mixers used to test products. Do you
23 recall that, sir?
24 A. I havent read the deposition.
25 Q. Im asking you if that is your
87
1 recollection as well?
2 A. There were small mixers there, but they
3 werent there to test products. They were used to
4 manufacture products.
5 Q. Okay. He indicated there was a
6 weatherometer test that was performed.
7 A. Weatherometer, yes.
8 Q. And the purpose of that test was to test
9 the durability of the products in outside weather
10 conditions? Is that a fair assessment?
11 A. Yes.
12 Q. And what other tests do you know of that
13 were performed at these two labs?
14 MR. KRIPPNER: Objection to the form of
15 the question.
16 A. There were a lot of different tests,
17 performance tests, tests on an instrom.
18 Q. Im sorry. After performance test, what
19 did you say?
20 A. Tested it on an instom.
21 Q. What is that?
22 A. A machine that pulls and compresses
23 various materials. A slump jig to test a product
24 for slump.
25 Q. What is a slump?
88
1 A. Slump is putting a compound in a little
2 jig that has a hole in it and then standing the jig
3 upright and the material would slump out.
4 Q. To see if it coagulates into that area?
5 A. It wouldnt coagulate. It would be in the
6 same material, but the material as it was fresh
7 would slump down the jig and you could measure how
8 far it slumped in a certain amount of time.
9 Q. Were there any other tests that were
10 performed?
11 A. Theres dozens of tests.
12 Q. Dozens of tests. Okay. Do you agree with
13 me that DAP has the money and resources to conduct
14 testing of the products for consumers?
15 A. Well, thats what all these tests were
16 designed for.
17 Q. Do you agree with me that DAP had the
18 money and resources to conduct all safety tests of
19 products for consumers.?
20 MR. KRIPPNER: Objection to the form of
21 the question.
22 A. I dont know how to respond specifically
23 to that question. Some of our products, we told
24 them dont injest this. It may be fatal and we
25 nerve tested for things like that.
89
1 Q. But you did put warnings on the products
2 to protect the consumers in those situations,
3 correct?
4 A. Yes.
5 Q. And there were no warnings placed on the
6 asbestos-containing products, correct?
7 MR. KRIPPNER: Objection.
8 Q. Correct, sir?
9 A. There was no need to put any labels on the
10 warning about asbestos. Asbestos as a product was
11 not hazardous.
12 Q. I understand that was your position.
13 Im going to draw year attention back to
14 P-2 for identification. Lets go to 16, B16. Did
15 any of the entities from whom you received asbestos
16 fiber or any of the entities referred to in B6, B7,
17 B8 and B10 ever inform DAP or DAPs employees that
18 asbestos was potentially hazardous to the health of
19 individuals who were exposed to it.
20 Do you know, sir -- first of all, lets
21 backtrack and if you can indicate to me who were the
22 suppliers of asbestos to the DAP products?
23 A. DAP got the asbestos fiber from two
24 suppliers, Carey Asbestos and Johns-Manville.
25 Q. And for a short time from Union Carbide,
90
1 correct?
2 A. Thats correct.
3 Q. So, now, lets talk about Johns-Manville.
4 Did Johns-Manville ever inform DAP about the
5 potential hazardous effects of asbestos?
6 A. Well, they say prolonged contact with the
7 product may be irritating.
8 (Marked P-9)
9 Q. I show counsel whats been marked and up
10 on the screen as P-9 for Identification. Have you
11 ever seen this letter before, and it is a letter
12 from Johns-Manville dated January 28,1972 to
13 Mr. Montgomery. Have you ever seen that before,
14 sir?
15 A. It was before my time, but Ive seen
16 similar letters.
17 Q. And based upon this letter, it appears
18 that Mr. Montgomery had communicated with
19 Johns-Manville about labeling of warnings labels on
20 their own containers and Johns-Manville sent a
21 letter back explaining that or identifying the
22 caution label that was printed on all bags that DAP
23 received. Is that a fair interpretation of this
24 letter, sir?
25 A. Yes.
91
1 Q. The caution label reads, This bag contains
2 crysotile asbestos fiber. Persons exposed to this
3 material should use adequate protective devices as
4 inhalation of this material over long periods may be
5 harmful.
6 Did I read that correctly?
7 A. Yes.
8 Q. So you were aware of either this letter or
9 a similar letter that DAP had received from
10 Johns-Manville about the dangers of asbestos,
11 correct?
12 A. Im aware of the hazard warning.
13 (Marked P-10)
14 Q. I show you whats up on the screen, P-10
15 for Identification. This letter thats been marked
16 as P-10 for Identification dated July 17, 1973, is a
17 letter from Marvin Sage, who is the Assistant
18 Technical Director, Research Division at DAP to
19 James Reese, Project Manager at Johns-Manville.
20 Did you know Marvin Sage?
21 A. I knew him for less than one day.
22 Q. So your mutual employment at DAP
23 overlapped by one day or was he transferred?
24 A. Less than one day, yes.
25 Q. Have you seen this letter before?
92
1 A. I believe I have.
2 Q. Can you explain to me the context under
3 which you have seen this letter before?
4 A. I believe some of the materials that were
5 retained by DAP, some of the documents that DAP has
6 or that the counsel has.
7 Q. So counsel has these documents?
8 A. Yes. They may have.
9 MS. PLACITELLA: Do you have --
10 MR. KIPPNER: Im not going to answer
11 questions.
12 MS. PLACITELLA: He cant answer that.
13 Q. The question infers, or excuse me the
14 letter infers that there have been communications
15 between the project manager at Johns-Manville and
16 the assistant technical director at DAP concerning
17 the properties of Johns-Manville asbestos. Would
18 you agree with me?
19 A. Yes.
20 Q. And they are talking about the possibility
21 of emanating - They are talking about the fact that
22 Johns-Manville asbestos emanates dust and they are
23 looking for methods in which to eliminate dust from
24 the product. Is that correct, sir?
25 A. From the asbestos fiber.
93
1 Q. Were you involved at all in the
2 communications with Johns-Manville about this joint
3 project?
4 MR. KRIPPNER: Objection to the form of
5 the question.
6 A. No.
7 Q. Do you know anyone at DAP, other than
8 Mr. Sage who continued the communications with
9 Johns-Manville to investigate the possibility of
10 eliminating the dust from Johns-Manville asbestos?
11 A. No.
12 Q. So you dont know of anyone else who
13 assumed that role for DAP after Mr. Sage Save left?
14 MR. KRIPPNER: Objection to the form of
15 the question.
16 A. Thats correct.
17 Q. Do you know the results of the
18 communications between Mr. Reese and Mr. Sage
19 regarding elliminating the dust from Johns-Manville
20 asbestos?
21 A. No.
22 Q. Do you know why DAP was concerned about
23 the dust in Johns-Manville asbestos?
24 A. It was a hygiene issue. Just dusty. They
25 had a lot of raw materials that under certain
94
1 conditions could emit dust.
2 Q. So it was the concern for the DAP
3 employees at the plants?
4 A. It was messy stuff to deal with.
5 Q. What about the Johns-Manville asbestos
6 in the finished DAP caulking product? Was that a
7 concern?
8 MR. KRIPPNER: Objection to the form of
9 the question.
10 A. No.
11 Q. So you agree with me that in July of 1973,
12 or prior thereto, based upon this letter that DAP
13 was in discussions with Johns-Manville concerning
14 properties of the Johns-Manville asbestos?
15 A. Yes.
16 Q. Were you aware that Johns-Manville
17 conducted meetings concerning health and asbestos
18 of which DAP attended?
19 MR. KRIPPNER: Objection to the form of
20 the question.
21 A. No.
22 MS. PLACITELLA: May I continue?
23 MR. KRIPNER: No. I would like to look
24 at it. Ive never seen this before.
25 Q. Can I show you the highlighted page?
95
1 MR. KRIPPNER: Do you see a number on it?
2 MS. PLACITELLA: No. Two questions. May
3 I continue?
4 MR. KRIPPNER: Yes.
5 Q. If you look at the first page of P-11, Mr.
6 Treat, it is an internal correspondence from
7 Johns-Manville and the subject matter is asbestos
8 and health presentations.
9 The letter is dated December 7, 1973 is up
10 on the screen. It indicated that they have
11 completed asbestos and health presentations in 1973
12 as follows. It lists the asbestos and health
13 presentations that were given in 1973 and then it
14 includes future schedules as follows.
15 MR. KRIIPPNER: Theres no question.
16 Q. Then on page 1 it says, the first one is
17 January 14 slash 15 Cleveland, Detroit. Then if you
18 go to the page up on the screen it indicates that
19 asbestos and health meeting was held on that date in
20 Cleveland and a representative from DAP had appeard.
21 Can you see that, sir?
22 A. Yes. Can you read the representative of
23 DAP who appeared at this meeting in the early part
24 of 1974?
25 A. This?
96
1 Q. Yes.
2 A. Jim Bonofiglio.
3 Q. Did you know him, sir?
4 A. Yes.
5 Q. What position did he have at DAP?
6 A. He was vice-president, technical. He was
7 a vice-president of the lab. Two vice-presidents in
8 the lab and he was one of them.
9 Q. Did you work with him?
10 A. Yes.
11 Q. And he worked at the Dayton, Ohio lab?
12 A. Yes.
13 Q. Were you aware that he attended this
14 meeting sponsored by Johns-Manville and the purpose
15 of the meeting was to discuss asbestos and health?
16 A. I may have have been informed of it, but I
17 dont remember any of the details.
18 Q. Did he have to come back and report to the
19 people in the labs such as yourself the results of
20 the meeting?
21 A. No.
22 Q. Were you ever asked to attend such a
23 meeting?
24 A. No.
25 Q. This is P-12. The first page is also up
97
1 on the screen.
2 May I continue?
3 MR. KRIPPNER: Sure.
4 Q. Have you ever seen this? This is a letter
5 from Johns-Manville to Mr. Bonofiglio dated
6 March 28,1977 where he encloses the material data
7 safety sheet for Johns-Manville chrysotile asbestos
8 fiber.
9 Have you seen this before, sir?
10 A. Yes.
11 Q. In what context did you see this letter
12 and the attachment?
13 A. It was part of the documents that Ive
14 seen relative to DAPs case.
15 Q. Did you see this for litigation purposes
16 when you say DAPs case? Was it part of the
17 litigation, asbestos litigation that you saw this
18 documents?
19 A. It was part of the documents that remained
20 for DAP.
21 Q. I dont understand.
22 A. A lot of the documents were destroyed in a
23 fire in 1997.
24 Q. I understand.
25 A. I reviewed documents like this. Anything
98
1 I could get my hands on to prepare me for situations
2 like this.
3 Q. Going back to this one P-1 C for
4 identification, you told me you had identified that,
5 which is the document, deposition notice for the
6 person with the most knowledge concerning the DAP
7 historical knowledge of the dangers of asbestos.
8 A. Yes.
9 Q. And then did you also see these documents
10 to produce? Were you given those in the course of
11 your preparation for todays deposition?
12 A. Ive seen this document before.
13 Q. Did you see this document, that is, you
14 have seen that particular document before? Did you
15 bring any documents with you concerning the
16 companys historical knowledge of the dangers of
17 asbestos?
18 A. No.
19 MS. PLACITELLA: Counsel, for the record,
20 I have not received -- I have referred zero
21 documents in response to this document production.
22 And Apparenly the witness has reviewed numerous
23 documents as such and I request that I be given
24 those documents immediately.
25 MS. HALLY: You were given -- we
99
1 responded to all three of your notices to produce.
2 MS. PLACITELLA: Right and I got no
3 documents.
4 MS. HALLY: Did you read the letter? It
5 said there were no documents.
6 MS. PLACITELLA: They said there were no
7 documents?
8 MS. HALLY: Thats why.
9 MS. PLACITELLA: Counsel indicated he
10 reviewed -- the witness just testified he reviewed
11 these documents in asbestos litigation. So
12 obviously counsel has copies of documents concerning
13 your companys historical knowledge of the dangers
14 of asbestos, which I have not been given.
15 MR. KRIPPNER: So to the extent that we
16 have a copy of this chrysotile and MSDS sheet -- I
17 dont know what to tell you other than whatever I
18 got --
19 MS. PLACITELLA: Okay, just for the
20 record, I want you to know this document marked P-9,
21 it has a DAP Bates stamp number, but it is for a
22 different case. It is not in the Johnson matter.
23 So obviously --
24 MR. KRIPPNER: That doesnt mean it is a
25 DAP -- because it says that doesnt mean that is
100
1 from the defendant you sued.
2 Whatever documents that related to the
3 historical knowledge, relate to the danger of
4 asbestos in the possession of the defendant, if they
5 were properly requested they shall be given to you.
6 Im agreeing with you.
7 MS. PLACITELLA: When can I get them?
8 MR. KRIPPNER: Within days.
9 MS. PLACITELLA: Great. Thank you?
10 Q. You had indicated that you had seen P-12
11 before, Mr. Treat, correct?
12 A. Thats a Johns-Manville --
13 MR. KRIPPNER: He said he saw this.
14 Q. But you did not see the cover letter
15 before?
16 A. I dont recall seeing the cover letter. I
17 know Ive seen this before.
18 Q. And the material safety data sheets, were
19 they distributed on a regular basis from
20 Johns-Manville to DAP since DAP was a customer of
21 Johns-Manville?
22 A. Yes. They were available. I cant say
23 they were distributed per se every time there was a
24 shipment received. They were available to customes
25 of Johns-Manville.
101
1 Q. So from these documents, do you agree with
2 me that Johns-Manville informed DAP, if it hadnt
3 already known about the dangers of asbestos?
4 MR. KRIPPNER: Objection to the form of
5 the question.
6 A. It gave DAP the information on the
7 material safety data sheets.
8 (Marked P-13)
9 Q. Okay. You indicated, sir, that Carey
10 Canadian was also a supplier of asbestos to DAP,
11 correct?
12 A. Yes.
13 MS. PLACITELLA: May I continue?
14 MR. KRIPPNER: Yes. As soon as I finish
15 this.
16 MS. HALLY: May may I correct something?
17 Im looking at our responses to your notice to
18 produce in conjunction with the deposition notice.
19 With regard to defendants historical knowledge of
20 the dangers of asbestos up to 1985, we didnt say we
21 didnt have documents. We objected as to overly
22 proud and unduly burdonsome.
23 MS. PLACITELLA: Counsel said he is going
24 to submit them to me.
25 MS. HALLY: I wanted to correct my
102
1 msrepresentation that I said there were no
2 documents.
3 MS. PLACITELLA: Okay. May I continue?
4 MR. KRIPPNER: Sure.
5 Q. This is a letter from Carey Canadian to
6 Mr. Pourman at Dayton, Ohio regarding a complaint
7 that DAP had about a shipment of Carey Canadian
8 asbestos that came to the DAP plant.
9 Have you seen this letter before, sir?
10 A. Yes.
11 Q. Can you explain to me the context under
12 which you saw this letter?
13 A. I saw that as just a matter of documents
14 that were available.
15 Q. Again, this is a document you saw in
16 asbestos litigation?
17 A. Yes.
18 Q. Did you see this letter as an employee of
19 DAP?
20 A. Not that I remember.
21 Q. Who was Mr. Pourman?
22 A. Mr. Pourman was in charge of raw
23 materials.
24 Q. For the DAP Dayton plant?
25 A. For all of DAP.
103
1 Q. For all of DAP. Im going to draw your
2 attention to the third paragraph. It starts with
3 this system works and they are talking about the
4 system of the relationship that you have between DAP
5 and Carey Canadian and this system works. The best
6 proof is that at for least ten years since we
7 started to service your company, it is the first
8 serious complaint of this kind. Matter of fact of
9 any kind if I recall it right. Did I read that --
10 MR. KRIPPNER: Objection to the form of
11 the question.
12 A. Yes.
13 Q. So, from this letter I assume, and I know
14 you are not supposed to assume, I assume that Carey
15 Canadian had been a supplier of asbestos to DAP from
16 1963?
17 MR. KRIPPNER: Objection to the form of
18 the question.
19 Q. Is that a fair assessment from this
20 letter?
21 A. At least 1963.
22 Q. Do you have any personal knowledge about
23 when Carey Canadian began as a supplier of asbestos
24 to DAP?
25 A. No.
104
1 Q. I show you whats been marked as P-14 for
2 Identification. It is a letter dated April 5, 1972
3 from Carey Canadian Asbestos and it encloses the
4 material safety data sheet.
5 Have you seen this document before, sir?
6 A. Yes.
7 Q. When did you see this document?
8 A. We had a file of all material safety data
9 sheets for all our materials in the lab.
10 Q. Do you still have those documents?
11 A. No.
12 Q. So, you saw this document or the material
13 safety data sheet as an employee of DAP?
14 A. As an employee of DAP and I believe Ive
15 seen it in preparation for DAPs defense work.
16 Q. You saw it in two different contexts,
17 correct?
18 A. Thats correct.
19 Q. This document is dated April 5, 1972?
20 A. Yes.
21 Q. Do you know when Carey Canadian asbestos
22 began sending material safety data sheets to DAP?
23 A. No.
24 Q. Union Carbide I understand was a supplier
25 of asbestos to DAP for a short period of time. Is
105
1 that correct, sir?
2 A. Yes.
3 Q. And when was that?
4 A. Approximately 1975.
5 MS. PLACITELLA: I dont have copies. We
6 will have to share. This was given in discovery, so
7 you should be familiar with this, counsel.
8 (Marked P-15,16, 17 and 18)
9
10 Q. Are these the cards you were referring to
11 that you reviewed in preparation for todays
12 deposition, Mr. Treat?
13 A. Yes.
14 Q. They have your signature on them, correct?
15 A. Thats correct.
16 Q. And some of those documents indicate that
17 the amount of asbestos, of colidria asbestos
18 manufactured obviously by Union Carbide, was
19 increased from, I believe 2.5 percent to 3.5
20 percent? Am I correct?
21 A. Yes.
22 Q. And why was that, sir ?
23 A. Different formulation. Maybe there wasnt
24 enough asbestos fiber in there to give the product
25 the performance they needed so maybe they could to
106
1 go back and put some more fiber in it.
2 Q. Okay and that was as later as 1975,
3 correct.
4 A. Yes.
5 Q. And these also were given to me in
6 discovery, counsel. These were also -- are they
7 also formulation cards that you had indicated?
8 A. Yes.
9 Q. And they are also dated 1975 that
10 indicates Colidria asbestos was used in the
11 formulations, correct?
12 A. Yes.
13 Q. Were you involved in that, even though it
14 doesnt have your signature?
15 A. yes.
16 (Marked P-19, 20 21and 22)
17
18 Q. So we have 19,20,21 and 22 all marked for
19 P for Identification are formula cards indicating
20 use of Colidria asbestos in or around June of 1975.
21 Is that correct, sir?
22 A. Yes.
23 Q. Now, Im going to show you what has been
24 marked P-22. This is indicating alternate formula
25 with Carey Asbestos, and it is dated January of
107
1 1961. Now that was before your time at DAP,
2 correct?
3 (Marked P-23)
4 A. Yes.
5 Q. Were you aware, sir, that for a period of
6 time in 1961 Carey Asbestos was used as well?
7 A. Yes.
8 (Marked P-24)
9 Q. This is P-24 for Identification. It is a
10 toxicology report thats been produced by Union
11 Carbide regarding Colidria asbestos. Have you seen
12 that, sir?
13 A. I dont believe so.
14 Q. Upon information and believe that document
15 was sent to all suppliers of -- all customers of
16 Union Carbide. Were you aware of that, sir?
17 MR. KRIPPNER: Objection to the form of
18 the question.
19 A. This is 1969.
20 Q. Were you aware of that, sir?
21 A. No.
22 Q. That wasnt in any of the files you
23 reviewed in preparation for this deposition?
24 A. I dont recall it.
25 Q. Okay. And just for the record, this is an
108
1 asbestos toxicology report that talks about the,
2 obviously the dangers of asbestos.
3 MR. KRIPPNER: Objection to the form of
4 the question.
5 (Recess taken) )
6
7 Q. Im drawing your attention, Mr. Treat, to
8 P-2 for identification. I thought you had that.
9 Look at B22 on page 9. The question involves
10 whether DAP established or maintained a library.
11 Do you know the answer to that question,
12 sir?
13 A. Yes.
14 Q. What is it, sir?
15 A. Its yes.
16 Q. When was this established?
17 A. They had a library. I cant say in the
18 Dayton lab.
19 Q. When was it established?
20 A. They had a library. I cant say it dealt
21 with industrial hygiene, medicine safety and
22 engineering, but we did have a library.
23 Q. It was established in what year, sir?
24 A. I dont remember the exact year, but Im
25 going to have to say it was around 1980, 1978, 1980.
109
1 Q. What was contained in the library?
2 A. Books, magazines.
3 Q. As far as your knowledge goes, was there
4 any documentation concerning -- was there any
5 documents or literature concerning the dangers of
6 asbestos or asbestos in general?
7 A. Im not aware of that.
8 Q. Where are the contents of the library now?
9 A. I dont know. I dont know what happened
10 to it. I left in 1990. The company was moved.
11 Q. So do you know if theres currently a
12 library?
13 A. No, I dont.
14 Q. Do you know who would know that?
15 A. Well, somebody at the DAP company would
16 know this for sure.
17 Q. Regarding B23, did DAP or the employees
18 make an effort to keep abreast of medical literature
19 concerning the potential health hazards posed by the
20 use and exposure of asbestos? Do you know if any
21 effort was made to keep abreast of medical
22 literature on this issue?
23 MR. KRIPPNER: Objection.
24 A. I dont know that.
25 Q. Who would know that?
110
1 MR. KRIPPNER: Objection to the form of
2 the question.
3 Q. Do you know if theres anyone at the
4 company who did keep, who was in charge of being
5 current with the medical literature concerning the
6 dangers of asbestos?
7 MR. KRIPPNER: Objection to the form of
8 the question.
9 A. No.
10 Q. Was there anyone in the company whose job
11 it was concerned the issues concerning asbestos in
12 the plants?
13 MR. KRIPPNER: Objection to the form of
14 the question.
15 A. Well, DAP was aware of OSHA regulations
16 which involved asbestos in the manufacturing
17 facility.
18 Q. Wasnt the insurance, your insurance
19 people, was it Liberty Mutual, were concerned with
20 that as well?
21 A. Thats my understanding.
22 Q. Were you aware that air tests were done in
23 the DAP plant in October of 1970, sir?
24 A. I was aware air tests were done in the DAP
25 plant. I dont know the exact date.
111
1 Q. Im going to show you page 38 of P-7.
2 MR. KRIPPNER: She is going to ask you
3 about the document. Take the document. When you
4 are done with it, take the document and put it back
5 in the pile.
6 Q. You can look at page 38. The question on
7 page 38 pertains to asbestos air tests that were
8 done at DAP plants. Do you see that, sir?
9 A. Yes.
10 Q. And it looks like the first test that is
11 indicated in the answer to interrogatory occurred on
12 October 1,1970. Do you see that? The person
13 conducting or reporting the study was Ralph E.
14 Mosley from Liberty Mutual?
15 MR. KRIPPNER: Objection to the form of
16 the question.
17 A. I see that.
18 Q. That was prior to your employment at DAP.
19 Is that correct?
20 A. Yes.
21 Q. Then if you continue on, 38, 39, 40, 41,
22 42, I guess there were numerous tests that were done
23 up until 1978. Do you see that, sir?
24 A. Yes.
25 Q. You agree with me that the original
112
1 testing was performed by Mr. Mosley. Did you ever
2 meet Mr. Mosley?
3 A. No.
4 Q. You were aware he worked for Liberty
5 Mutual prior to looking at this particular document?
6 A. No.
7 Q. Do you know why Liberty Mutual was the
8 person who conducted or reported the study?
9 A. No.
10 Q. Did you have any contact with the
11 insurance carriers for DAP?
12 A. No.
13 Q. Do you know whether or not the air
14 testings were required for insurances purposes by
15 Liberty Mutual?
16 A. No.
17 Q. Based upon this answer to interrogatories
18 it is fair to say that in 1970 that asbestos air
19 tests were done at the DAP plant in Georgia. Is
20 that fair to say, sir? Do you see on the first
21 page, Im talking about page 38.
22 A. What was the question again?
23 Q. Is it fair to say am I correct that it
24 appears that the first, that an asbestos air test
25 was performed at the Decator, Georgia DAP plant in
113
1 1970?
2 A. Yes.
3 Q. So based upon this particular answer to
4 interrogatory that was signed by counsel, would you
5 agree with me that going back to the Answers to
6 Interrogatories in the New Jersey litigation
7 regarding , B36, that DAP became aware of the
8 dangers of asbestos by at least 1970?
9 MR. KRIPPNER: Objection to the form of
10 the question.
11 A. DAP was aware that there were concerns
12 about prolonged inhalation, high concentrations of
13 asbestos fiber, but I dont think that document
14 reflects the hazards that you are alluding to.
15 Q. My question was, the question in the
16 Answers to Interrogatories is, in fact, Ill read it
17 exactly. When was the first time that defendant
18 became aware of or knowledgeable of any disease or
19 illness associated with or causally related to the
20 inhalation of asbestos.
21 A. Thats would have been 19 -- would have
22 been around 1970.
23 Q. So this answer that says, the bottom, the
24 last line of the response, defendant was aware in
25 the 1970s that asbestos exposure might be hazardous
114
1 to human health, as far as your knowledge now after
2 this deposition, it should be was aware by 1970?
3 MR. KRIPPNER: Objection to the form of
4 the question.
5 Q. Do you agree with me?
6 A. Which interrogatory are you referring to?
7 Q. Right here, sir, top of the page. Do you
8 see the last answer, the last line of the response
9 for B36 says defendant was aware in the 1970s that
10 asbestos exposure might be hazardous to human
11 health.
12 Do you agree with me that the answer
13 should now be changed to defendant was aware by
14 1970?
15 MR. KRIPPNER: Objection to the form of
16 the question.
17 Q. That asbestos exposure might be hazardous
18 to human health?
19 MR. KRIPPNER: Objection to the form of
20 the question.
21 A. Well, early 70s. I dont understand
22 your question.
23 Q. Im trying to be a little bit more
24 specific. As we discussed in the dining of the
25 depositions that I thought that the answer as it
115
1 stated is extremely broad. It lists an entire
2 decades.
3 So the question was when was the first
4 time that DAP became aware of or knowledgeable of
5 any disease or illness associated with the exposure
6 to asbestos, and Im saying that based upon this
7 Answer to Interrogatories wherein now you know
8 asbestos air tests was done at a DAP plant in 1970
9 this answer should now be changed to by 1970. Do
10 you agree with me, sir?
11 MR. KRIPPNER: Objection to the form of
12 the question.
13 A. What does that read?
14 Q. Im reading what you just read, which is
15 B36.
16 A. B36, defendant was aware in the 1970s that
17 asbestos exposure might be hazardous to human
18 health.
19 Q. Right. And if you wanted to clarify that
20 answer, do you agree with me that you should say
21 defendant was aware by 1970 that asbestos exposure
22 might be hazardous to human health?
23 MR. KRIPPNER: Objection to the form of
24 the question.
25 A. I cant say that. This answers the
116
1 question. I wasnt there in the 1970s so I dont
2 know what they were thinking.
3 Q. I know, but we dust just discussed --
4 A. You are asking me to interprets that
5 response.
6 Q. Right. Thats what Im asking you to as a
7 person who verifies the Answers to Interrogatories
8 as being accurate. My question you to is, sir, do
9 you agree with me that if an asbestos air test was
10 done at a DAP plant in 1970, that DAP knew of the
11 dangers of asbestos by 1970?
12 A. The question is answered here. It say
13 defendant was aware in the 1970s.
14 Q. Thats not my question.
15 MS. PLACITELLA: Could you repeat my
16 question?
17 (The above question is read by the court
18 reporter)
19 A. No. I cant make that statement.
20 Q. So you are telling me that you cannot
21 state that DAP would know the reason why Liberty
22 Mutual would come in and do an asbestos air test of
23 a DAP plant?
24 A. Thats exactly correct.
25 MR. KRIPPNER: Let me object. Object to
117
1 the form of the question.
2 Q. Why, as a corporate representative of DAP,
3 part of your duties is to review documents on behalf
4 of DAP and verify Interrogatories as being accurate,
5 correct?
6 A. That is correct.
7 Q. Im asking you to interpret this
8 particular document.
9 MR. KRIPPNER: Objection to the form of
10 the question.
11 MS. PLACITELLA: Absolutely Im entitled
12 to.
13 MR. KRIPPNER: What document are you
14 talking about?
15 MS. PLACITELLA: This document.
16 MR. KRIPPNER: The Answer to the
17 Interrogatories --
18 MS. PLACITELLA: The answer to
19 interrogatory, page 38.
20 MR. KRIPPNER: Which exhibit?
21 MS. PLACITELLA: P-7.
22 Q. Is it fair to assume that --
23 MS. PLACITELLA: Let me ask the question,
24 sir.
25 Q. Is it fair to assume that DAP knew that
118
1 asbestos was harmful under certain conditions if a
2 Liberty Mutual representative came into a DAP plant
3 and did an asbestos air test?
4 A. I cant make that assumption. I cant
5 answer that question.
6 Q. Im asking you as an individual, not as
7 representing all of DAP. Is it fair to assume,
8 based upon this particular answer to interrogatory,
9 that DAP would know the reason --
10 MR. KRIPPNER: Objection.
11 Q. That DAP would know the dangers of
12 asbestos if a representative came in and did an air
13 sampling test for asbestos?
14 MR. KRIPPNER: Objection to the form of
15 the question I know the question has been asked
16 and answered.
17 A. I cant make that assumption. I can tell
18 you what I know when I was there, but I cant make
19 the assumption you are asking me to make.
20 Q. Let me ask you this. When a
21 representative came in to do an air sampling test
22 and the test is called an asbestos air sampling
23 test, what do the people that are involved in the
24 plant think that is the subject matter of the test?
25 A. I cant tell you what the people in the
119
1 plant think. I can tell you what I know.
2 Q. Okay.
3 A. I know that Liberty Mutual has been in
4 several times. They have taken airesol samples and
5 they have said you need to clean up. You need to
6 have better hygiene in your plants.
7 Q. Why would Liberty Mutual be concerned
8 about the safety and health in a DAP plant?
9 MR. KRIPPNER: Objection to the form of
10 the question.
11 A. Because thats their job.
12 Q. Why is it their job?
13 A. Because they are the insurance carrier.
14 Q. And are there provisions in the insurance
15 policy that they dont insure DAP if they dont meet
16 certain criteria?
17 A. I dont know and would have no way of
18 knowing. I dont have interface with the insurance
19 company.
20 Q. When an asbestos air sampling test is
21 begun at a DAP plant, who gets the results of the
22 test?
23 A. Your question is very broad. There are a
24 lot of people that made airesol sampling tests,
25 myself included.
120
1 Q. Have you ever been to the Decator, Georgia
2 plant?
3 A. No.
4 Q. Have you ever been to the Dallas, Texas
5 plant?
6 A. Yes.
7 Q. So when Liberty Mutual came, specifically
8 Ralph Mosely came in on November 5, 1970, to the
9 Dallas, Texas plant, to do an evaluation of factory
10 workers regarding exposure to asbestos fibers in the
11 air, who would he see at the Dallas plant? Do you
12 know in 1970?
13 A. No.
14 Q. Who would he see in 1973?
15 A. He would have seen the vice-president of
16 production.
17 Q. And who was that?
18 A. Don Montgomery.
19 Q. Okay. Who would Ralph Mosely report the
20 results of this evaluation of factory workers
21 exposure test?
22 A. I do know.
23 Q. When he came into the Dallas plant in
24 December 23, 1970 and did asbestos air sampling test
25 there, who would he. I made a mistake. Strike
121
1 that.
2 Lets talk about on page 41, looks like
3 June of 1973 Mr. Bonfiglio did a test of the air
4 sampling regarding the dangers of asbestos at the
5 Dayton, Ohio plant. Were you aware of that?
6 MR. KRIPPNER: Objection to the form of
7 the question.
8 A. Im aware of it now by reading this
9 document. I wasnt aware of it back then.
10 Q. Were you working at Dayton, Ohio plant in
11 June of 1973?
12 Q. Well, lets look at that. Who would
13 Mr. Bonfiglio, who would he report his results of
14 the test to at the Dayton plant?
15 A. He would have reported it to the executive
16 vice-president, but it certainly would have gone to
17 the vice-president of production.
18 Q. Lets go back again to October 1, 1970
19 when Ralph Mosely went to the Decator, Georgia
20 plant. You can see there was asbestos -- the
21 results regarding asbestos fibers in the air.
22 Do you know who he would report the
23 results of this particular test to under corporate
24 management?
25 MR. KRIPPNER: Objection asked and
122
1 answered.
2 MS. PLACITELLA: I know I asked in the
3 plant. Now Im asking about corporate management.
4 A. Well, the same thing. It would have gone
5 certainly to the executive vice-president, president
6 and ultimately to the vice-president of production.
7 Q. And what would the vice-president of
8 production do with the results of an asbestos air
9 test at a particular plant, regardless of the
10 results? What, if anything, would that indidual do?
11 A. Im sure -- I cant speak for them. I
12 dont know what they would have done, but they
13 certainly would have talked with the plant manager
14 and said clean up your production area.
15 Q. So based upon what we have just discussed
16 in this answer to interrogatory, you had indicated
17 before that your answer to B36, if you were to amend
18 it would, be defendant was aware in the early 1970s
19 that asbestos exposure might be hazardous to human
20 health.
21 MR. KRIPPNER; Objection.
22 MS. PLACITELLA: He answered that
23 already.
24 He didnt say that?
25 MR. KRIPPNER: No, he didnt. He never
123
1 said he would amend an answer to interrogatory.
2 MS. PLACITELLA: No, he said to be clear
3 it would be, the answer would be early 1970s.
4 Q. Is that correct, sir?
5 A. No. What I said is this statement here
6 answers your question.
7 Q. Right, but as far as when the company
8 first became aware, do you agree with me -- I
9 thought you said in the beginning of the deposition,
10 and we can take a break have Mr. Brody go through
11 the hole entire transcript.
12 But I thought you had said with the onset
13 of OSHA that it would be the early 1970s that DAP
14 became aware of the dangers of asbestos. Do you
15 agree with me on that?
16 A. Yes.
17 Q. Based upon this asbestos air test at the
18 DAP plant, do you agree with me that to further
19 define the answer, if you were asked to do so, not
20 that you are being asked to do so, if you were to be
21 asked to do so, would you agree with me that the
22 answer would be that DAP became aware by 1970 of the
23 dangers of asbestos?
24 MR. KRIPPNER: Objection to the form of
25 the question asked and answered multiple times.
124
1 A. The defendant was aware in the 1970s
2 that asbestos exposure might be hazardous to human
3 health. Theres no way I would change the response.
4 Q. Im not asking you to change it. Im
5 asking you as part of this deposition to further
6 define your answer, not to change it, to further
7 define your answer, would you agree with me that
8 based upon the fact that Liberty Mutual came in and
9 did asbestos air tests at the DAP plant that DAP was
10 aware of the dangers of asbestos by 1970?
11 MR. KRIPPNER: Objection.
12 A. One doesnt follow the other.
13 Q. So you are telling me that DAP did not
14 know why Liberty Mutual was coming in to do an
15 asbestos air test?
16 MR. KRIPPNER: Objection to the form of
17 the question.
18 Q. I dont understand. I wish --I dont
19 mean -- I just dont understand your answer, sir.
20 A. Liberty Mutual came around to all of our
21 plants on a routine basis. They locked at
22 everything, locked at all the safety, looked at all
23 the employees and they looked at the dust that may
24 have have been generated in the compounding areas.
25 And at this point in time in the early
125
1 1970s OSHA was just coming on board with their
2 perception that inhalation of high quantities of
3 asbestos fiber may cause health concerns.
4 So at that point in time Liberty Mutual
5 apparently picked up on that and said, okay, besides
6 the dust, besides other possible safety issues, we
7 are also going to monitor asbestos fiber.
8 Q. But would you agree with me that when
9 Liberty came in to do an air sampling test in 1970,
10 that DAP knew that they were doing an air sampling
11 test of asbestos?
12 A. Sure they were knew they were going an air
13 sampling test of asbestos.
14 Q. Why did DAP think Liberty Mutual was come
15 until in 1970 to do an air sampling test of
16 asbestos?
17 A. I have no idea.
18 Q. You have no idea?
19 MR. KRIPNNER: Totally argumentative.
20 MS. PLACITELLA: Let him finish the
21 answer.
22 A. Because of the reason I just stated.
23 Q. Which was?
24 A. OSHA had determined, and this was, this
25 came out in the early 70s the regulation came out
126
1 in 1972 which said prolonged exposure to high
2 quantities of airborne asbestos fiber may be a
3 health concern. Stated right in the regulations.
4 Q. But we are talking about 1970.
5 A. Okay. But through the Congress
6 influential records, this information was also
7 promulgatged to the public.
8 Q. So you are telling me that DAP did not
9 know the reason why Liberty Mutual was coming in to
10 do an air sampling test in 1970?
11 MR. KRIPPNER: Im going to object to
12 the form. Counsel, I believe you asked the exact
13 same questions at least, I lost track eight or nine
14 times. I think you are badgering the witness on
15 this issue. He answered the questions multiple
16 times to the best of his ability and Im growing
17 concerned about the nature of the deposition on this
18 particular issue.
19 I think you have asked the identical
20 questions or the question substantially similar
21 fashion again and again.
22 MS. PLACITELLA: I understand what you
23 are saying. I dont think the witness understood my
24 question. One more time, if I can get the question
25 across.
127
1 Q. Mr. Treat, do you understand my question?
2 Is it your testimony that in 1970 DAP had no idea as
3 to the reason why an air sampling test was done at
4 their plant in 1970?
5 MR. KRIPPNER: Objection to the form of
6 the question.
7 A. If you could rephrase the question.
8 Q. Is it your testimony that DAP had no idea
9 as to the reason why an asbestos air sampling test
10 was done at a plant in 1970?
11 MR. KRIPPNER: Objection to the form of
12 the question.
13 A. No. It says right here, defendant was
14 aware in the 1970s that asbestos exposure might be
15 hazardous to human health. Liberty Mutual looked at
16 every possible as expect in their liabilities that
17 they could.
18 Q. You agree with me they looked at this
19 issue in 1970 at a DAP plant?
20 MR. KRIPPNER: Objection to the form of
21 the question.
22 Q. They did the airesol sampling and they did
23 asbestos air tests in 1970?
24 A. Yes, they did many air tests. Asbestos
25 was just one little segment. Many, many tests.
128
1 Q. And DAP knew that they were doing asbestos
2 air tests, right?
3 A. Yes.
4 Q. And DAP knew why they were doing asbestos
5 air tests?
6 MR. KRIPPNER: Objection to the form of
7 the question.
8 A. Well, they knew for the reasons I just
9 stated.
10 Q. Because OSHA was coming along and they had
11 requirements that their insurances company had and
12 they had to comply with the insurance company. Is
13 that fair?
14 A. No. They knew the OSHA regulations
15 stipulated that prolonged exposure to asbestos fiber
16 over a long time may be a health concern. This
17 information was available in 1970. So apparantly
18 Liberty says besides everything we monitor for, we
19 should start monitoring for asbestos fiber in the
20 air.
21 Q. And you just said this information was
22 available in 1970?
23 MR. KRIPPNER: Objection to the form of
24 the question.
25 Q. Right?
129
1 A. Im not sure what information you are
2 talking about, the OSHA information or Liberty
3 Mutual.
4 Q. The OSHA information.
5 A. Yes.
6 Q. Thank you. Are you familiar with
7 Mr. Gooch, G O O C H? He was the vice-president of
8 manufacturing and engineering for DAP?
9 A. Thats correct.
10 Q. Are you aware that he testified that he
11 learned, personally learned about the dangers of
12 asbestos in 1969 or 1970 from Liberty Mutual
13 Insurance?
14 MR. KRIPPNER: Objection to the form of
15 the question.
16 A. No.
17 MS. PLACITELLA: You have this, counsel,
18 because it was indicated in your Answers to
19 Interrogatories.
20 (Marked P-25)
21 Q. Im going to show you page 101. Can you
22 review that highlighted portion of his testimony?
23 Thank you.
24 MR. KRIPPNER: That was marked?
25 MS. PLACITELLA: We marked it. P-25.
130
1 Q. Mr. Treat, just to get the question, the
2 question asked, first of all, lets go over Mr.
3 Gooch. Is that how you say his name?
4 A. Yes.
5 Q. How did you know him?
6 A. He was there for a short period of time
7 when I first started working at DAP.
8 Q. He was a vice-president?
9 A. Yes.
10 Q. Did you work directly for him?
11 A. No.
12 Q. He is deceased. Are you aware of that,
13 sir?
14 A. I may have have been told that.
15 Q. The question was, In 1964, from 1964 to
16 1970 do you recall hearing from the media or any
17 other people about the potential health hazards of
18 asbestos? He said the answer was yes.
19 When did you first hear that? Answer. it
20 will to be in the late 1960s and Im saying 69,
21 70s perhaps.
22 And how did you hear that? Through
23 Liberty Mutual. Was there a particular person at
24 Liberty Mutual who you dealt with? No. That came
25 through John Troop by way of Liberty Mutual.
131
1 Q. And who was John Troop. Refresh my
2 recollection again? Manager of safety for Plough.
3 Q. The question is based upon this testimony,
4 were you aware that Mr. Gooch testified that he
5 learned of the dangers of asbestos in the late 60s,
6 say 1969, perhaps 70?
7 MR. KRIPPNER: Objection to the form of
8 the question.
9 A. No.
10 Q. You indicated to me that you learned about
11 asbestos when you were 12 years old?
12 A. Yes.
13 Q. When did you learn about the dangers of
14 asbestos?
15 MR. KRIPPNER: Objection to the form of
16 the question.
17 A. In approximately mid 2008.
18 Q. You are telling me you are a chemist and
19 you didnt learn about the dangers of asbestos until
20 2008?
21 MR. KRIPPNER: Objection to the form of
22 the question.
23 A. Yes.
24 Q. When you were involved in the
25 reformulation of the DAP products, taking asbestos
132
1 out, you didnt know at that point about the dangers
2 of asbestos?
3 MR. KRIPPNER: Objection to the form of
4 the question.
5 A. I knew there were issues with prolonged
6 high concentrations of airborne asbestos. I didnt
7 know anything about the idiology of diseases or
8 anything else.
9 Q. When did you learn that asbestos could be
10 hazardous to human health?
11 A. Well, like I just said, when the OSHA
12 regulations came out in the early 70s, but as far
13 as disease and things like that, it wasnt until
14 2008 that I had heard the word mesothelioma. It was
15 treated as a nuisance dust. We wanted to get rid of
16 it. Thats what my job was.
17 Q. Do you know when DAP employees began
18 using respirators or masks?
19 A. Respirators and masks were distributed to
20 the employees when they joined DAP. I got one.
21 Every employee that worked in production or in the
22 laboratory got one as a matter of procedure.
23 Q. Do you know the first time that DAP
24 employees were given masks or respirators in their
25 plants?
133
1 A. No.
2 Q. According to Mr. Gooch, he was aware in
3 1968 that paper masks were given in the Baltimore
4 plant. Were you aware of that, sir?
5 A. Not specifically, but all plants gave
6 production employees masks of one form or another.
7 Q. Im going to show you his testimony, which
8 says on page 116, When is the first time that you
9 knew that DAP employees were using respirators? And
10 he says the answer is when I went there in 1968 to
11 do some studies, they were using some. They werent
12 respirators, they were 3M 8710 masks. The little
13 paper masks? Yes. This was the inspection of the
14 Baltimore plant. Im sorry. I got it wrong. No,
15 this was the work we were doing in the Dayton
16 facility. He goes on to say that.
17 I stand corrected. It wasnt at the
18 Baltimore plant. It was at the plant you worked
19 amount later on, but it was at the Dayton plant.
20 Were you aware of that, sir?
21 MR. KRIPPNER: Objection to the form of
22 the question.
23 A. Well, all I can tell as you when I started
24 at DAP they gave me a respirator, safety shoes,
25 uniform. They gave the same things to the
134
1 production people that worked in the compounding
2 area.
3 Q. Mr. Gooch learned about masks or
4 respirators as a vice-president at some point, but
5 he indicates in 1968 he first saw it in the plant.
6 Do you agree with me on that?
7 A. Yes.
8 Q. Based upon his testimony?
9 MR. KRIPPNER: Objection to the form of
10 the question.
11 Q. Did you ever have any discussions with any
12 employees of DAP about asbestos?
13 MR. KRIPPNER: Objection to the form of
14 the question.
15 A. First five years I worked at DAP just
16 about about my sole responsiblity was removing
17 asbestos fiber from all of the products. I talked
18 to a lot of people about asbestos fiber.
19 Q. Did anybody at DAP tell you when the
20 corporation first became concerned about the affects
21 of asbestos on its employees?
22 A. No.
23 Q. Now, if you go back to Page 12 of P-2
24 right there, Im going to ask you about question
25 number B31.
135
1 Did defendant at any time require its
2 employees who worked in the manufacturer of asbestos
3 or asbestos-containing products to wear respirators,
4 face masks or other protective devices. I really
5 dont understand the answer as it is written so, Im
6 going to ask you directly.
7 At what time were DAP employees first
8 required to wear respirators or face masks, as far
9 as your knowledge goes?
10 MR. KRIPPNER: Objection to the form of
11 the question.
12 A. I dont know when they put that policy
13 into effect. When I got there everybody was --
14 everybody that worked in compounding or in the
15 laboratory was given a respirator.
16 (Marked P-26)
17 Q. Im going to show P-26.
18 MS. PLACITELLA: May I continue?
19 MR. KRIPPNER: Do you want to direct me?
20 Ill read the whole document or direct me to a
21 particular page.
22 Q. Yes. I didnt have -- could you share the
23 copy? Im just going to ask two questions. If you
24 want to stop, you can.
25 P-26 looks like it is a dated
136
1 April 22,1971, asbestos fiber and air survey. Have
2 you seen this document before, sir?
3 A. I believe I have.
4 Q. When did you first see this document?
5 A. Approximately a year ago.
6 Q. You saw this document in connection with
7 asbestos litigation?
8 A. Yes.
9 Q. So this pertains to the --
10 A. Are we looking at the same document?
11 Q. On the screen. On the left is the first
12 page and on the right are the recommendations which
13 are on the second page of the document, bottom
14 second page, I think.
15 A. Okay.
16 Q. This pertains to the San Jose plant. Is
17 that correct, sir?
18 A. Yes.
19 Q. Have you ever visited the San Jose plant
20 as a DAP employee?
21 A. Yes.
22 Q. You are more familiar with this document
23 than I am since you have seen it a year ago. Who
24 prepared this document?
25 A. It is not clear who prepared it.
137
1 Q. Well, the bottom left, says J. T. Brown,
2 loss prevention department?
3 A. Right.
4 Q. The bottom right says Jon J O N
5 L O B D E L industrial hygienist. Is that correct?
6 A. Yes.
7 Q. Did they prepare the document?
8 A. Apparantly so.
9 Q. And do you know J. T. Brown?
10 A. No.
11 Q. Did you know John Lodel?
12 A. No.
13 Q. The is a San Jose plant employee, an
14 industrial hygienist?
15 A. No.
16 Q. Was this an outside company?
17 A. It is wasnt part of DAP.
18 Q. Do you know why an asbestos fiber and air
19 survey was conducted in 1971?
20 A. No.
21 Q. Do you know whether or not this was a
22 requirement of the insurance company, as was the air
23 sampling studies done in 1970 in Georgia that we
24 discussed in the Answers to Interrogatories?
25 A. These people may have have been from
138
1 Liberty Mutual. I dont know. I have no way of
2 knowing. They may have been hired by Liberty
3 Mutual, but I do not know.
4 Q. If you look on the second page, the
5 recommendations, number 2, which is up on the
6 screen, indicates that the recommendations for this
7 particular study, that its important for the mixing
8 man to wear respirators?
9 Is that a fair summary of that particular
10 section?
11 A. Yes. Well, I think you should read all of
12 the statement. That is against numerous production
13 of dust and approved by the United States Bureau of
14 mines.
15 Q. Is it fair to say that in 1971 in the San
16 Jose plant, that there was concern and it was
17 recommended that certain people in the plant wear
18 respirators. Is that a fair assessment of this
19 particular recommendation?
20 A. Yes, but as matter of record they all had
21 respirators anyway. Some of them did, some of the
22 employees did not elect to use them all of the
23 time.
24 Q. As a former DAP employee, would you say
25 that DAP took measures to protect the employees from
139
1 the dangers of asbestos?
2 A. Absolutely.
3 Q. Yet you would agree with me that DAP did
4 not take any measures to protect consumers of the
5 asbestos-containing products about the dangers of
6 asbestos?
7 MR. KRIPPNER: Objection to the form.
8 A. You are talking about two different
9 things, apples and oranges.
10 Q. Right.
11 A. There was no need to protect any consumers
12 because there was no hazard in using asbestos fiber
13 in any of the DAP products.
14 Q. I understand thats your position, but
15 that is not my question. I said they took no
16 measures to protect. It is a difference of opinion
17 as to why they did it..
18 You will agree with me they took no
19 machines to protect the consumers of the
20 asbestos-containing products of the dangers of
21 asbestos?
22 MR. KRIPPNER: Objection to the form of
23 the question.
24 Q. Do you agree with me on that?
25 MR. KRIPPNER: Objection to the form of
140
1 the question. Also that specific question was asked
2 and was answered.
3 A. They gave instructions on how to use their
4 products, but I dont know if I can adequately
5 answer your question.
6 Q. Lets go to B33, if you could turn to it.
7 Page 13. Thats the one thats upside down. I
8 apologize.
9 A. This question pertains to the Workers
10 Compensation claims. Have any workers employed by
11 DAP ever filed Workers Compensation claims, is the
12 question?
13 MR. KRIPPNER: Objection to the form of
14 the question. She is not asking you about that now.
15 Put the document down.
16 Q. Im asking -- this question, Workers
17 Compensation has been addressed in P-33. Now Im
18 asking you as the person -- as the person who
19 certified the Interrogatories, has any worker at DAP
20 filed a Workers Compensation claim?
21 A. Over what time period?
22 Q. Any time since it began. Let me clarify.
23 Has any worker of DAP filed a Workers Compensation
24 claim concerning exposure to asbestos?
25 A. No.
141
1 Q. Not one case has been filed?
2 Okay. Lets go back to P-7, which is
3 here. Lets look at number 88. Question 88. It is
4 on page 99.
5 A. 99 or 59?
6 Q. Your eyes are better than me, sir. 59.
7 The question was, has defendant and predecessor or
8 related company or any Workers Compensation
9 insurance carrier thereof ever have any claim for
10 lung disease or death from lung disagree
11 attributable to asbestos, mesothelioma, lung cancer,
12 exposure to asbestos-containing products.
13 I rephrased the question and the answer
14 was yes. One clam for Workers Compensation was
15 filed against DAP and if you go to the next page
16 question number 89, the answer at the bottom of page
17 60 is that the claim was from November of 1989.
18 Do you see that answer, sir?
19 A. Yes. I think you are talking about two
20 different things. There was a workers claim filed
21 in 2005 and thats the only claim that Im aware of
22 for Workers Compensation.
23 Q. So there was a Workers Compensation claim
24 filed in 2005?
25 A. Yes.
142
1 Q. Is that what you are saying, sir?
2 A. Yes.
3 Q. And it was for a worker who worked at a
4 DAP plant?
5 A. Im not aware of the specifics of the
6 claim. Yes, it was a DAP worker.
7 Q. And it regarded asbestos exposure,
8 injuries caused by exposure to asbestos?
9 A. I dont know the specifics of the Workers
10 Compensation clam. I know when it was filed in
11 2005. Thats all I know. I dont know who it was
12 or what it was for.
13 Q. So we know about the one in 2005 and then
14 based upon this particular Answers to
15 Interrogatories, there was another one that was
16 filed in 1989. Do you see that, sir?
17 MR. KRIPPNER: Objection to the form of
18 the question.
19 Would you read the question.
20 (The above question is read by the
21 Reporter)
22 A. Let me rephrase my answer. The only
23 Workers Compensation claim Im aware of was filed
24 in 2005.
25 Q. So what about this claim? You werent
143
1 aware about this claim filed in 1989, sir?
2 MR. KRIPPNER: Objection to the form of
3 the question. Can i clarigy. That wasnt a
4 Workers Compensation claim. You are asking legal
5 conclusions. It was a premise claim under
6 California law.
7 MS. PLACITELLA: What was, sir?
8 MR. KRIPPNER: The lawsuit that was filed
9 in 1989 to 90.
10 MS. PLACITELLA: Well, Im going to go by
11 this answer to interrogatory that says yes, one
12 claim for Workers Compensation was filed against
13 defendant DAP.
14 MR. KRIPPNER: Right. Workers
15 Compensation claim also theres a specific legal
16 remedy available to employees. The 89 cases was
17 not a Workers Compensation claim. Im trying to
18 clarify for you.
19 MS. PLACITELLA: Sothen why was this
20 answer to number 88 yes, one claim for Workers
21 Compensation was filed against defendant DAP and
22 then it goes on to say that it occurred in
23 November 1989 against DAP for lung cancer
24 mesothelioma?
25 MR. KRIPPNER: The legal nuances of how
144
1 the question was worded and the answers, I can tell
2 you the Monte Harris case in California, very
3 different law.
4 MS. PLACITELLA: Different what?
5 MR. KRIPPNER: Different law. California
6 is a unique legal jurisdiction which at the time of
7 the Harris case it was -- it is my understanding
8 that case was some type of direct premises liability
9 case against DAP arising out of a facility in
10 California. Im not even clear if Mr. Harris was an
11 employee.
12 MS. PLACITELLA: So counsel, you signed
13 these answers to Interrogatories. So are you saying
14 this answers is incorrect?
15 MR. KRIPPNER: No, Im not. Im saying
16 you are asking questions with legal conclusions that
17 are -- that I dont even understand.
18 I signed them. Im not under oath.
19 Im not giving a deposition. Im trying to clarify
20 it. There was a premises case in 89 and a Workers
21 Compensation claim in 2005. That is what DAP has.
22 They took asbestos out of their products no later
23 than 78.
24 MS. PLACITELLA: Are you
25 testifying., sir?
145
1 MR. KRIPPNER: You asked me a
2 question. Im not testifying. You have to take an
3 oath and give me a notice.
4 MS. PLACITELLA: But you --
5 MR. KRIPPNER: You asked me.
6 MS. PLACITELLA: You started the
7 question by saying you wanted to clarify this
8 answer.
9 MR. KRIPPNER: At this point --
10 MS. PLACITELLA: So, lets backtrack.
11 Q. Are you aware of a particular case filed
12 in 1989 thats referred to in the Answers to
13 Interrogatories identified as P-7, sir?
14 A. Im not familiar with the case. The
15 answer is no, Im familiar with what the document
16 states.
17 Q. You indicated you didnt know about this
18 case in 1989. You do know about a case in 2005,
19 correct?
20 MR. KRIPPNER: Objection to the form of
21 the question.
22 A. I have been told there was a Workers
23 Compensation claim filed in 2005.
24 Q. Are you a aware of any other claims that
25 have been filed for Workers Compensation?
146
1 A. No.
2 Q. Did DAP manufacture roof coatings?
3 A. Yes.
4 Q. When was the asbestos taken out of the
5 roof coating?
6 A. No later than the first part of 1978.
7 Q. You indicated to me in the beginning of
8 this deposition that starting in 1973 you were
9 involved in the reformulation of certain formulas
10 for DAP products. Is that correct?
11 A. Yes.
12 Q. Now, was part of your job the
13 reformulationo of asbestos products without the
14 presence of asbestos?
15 A. My objective was to take all of the
16 asbestos fiber out of those products that I had
17 charge of.
18 Q. You started this process in 1973?
19 A. Latter part of 73.
20 Q. Now, why were you charged with this
21 responsibility?
22 A. I was the new man on board. I guess they
23 had a need there and so I got it.
24 Q. Why did DAP want to take out the asbestos
25 from its product line?
147
1 A. Why did they want to take it out?
2 Q. Yes.
3 A. OSHA came out with new regulations on the
4 amount of asbestos fiber that could be -- workers
5 could be exposed to in the manufacturing process.
6 They kept changing the regulation and I have been
7 told mean the management decided we dont want to
8 hassel with this anymore so just take all the
9 asbestos fiber out of all the DAP products.
10 Q. That took a five year process?
11 A. Yes, approximately.
12 Q. And during that entire five year process
13 is it fair to say that the concern was to protect
14 the workers in the DAP plants from having to mix
15 asbestos as one of the ingredients?
16 A. The concern was to comply, first of all,
17 with the OSHA regulations and they always had a
18 concern about not only asbestos exposure, but
19 useless dust exposure.
20 Q. There were numerous OSHA citations in
21 various plants, correct, sir?
22 A. There were some.
23 Q. Were you involved in any of the OSHA
24 violations in the Dayton plant?
25 MR. KRIPPNER: Objection to the form of
148
1 the question.
2 A. No.
3 Q. Were you aware of any OSHA regulations in
4 the Dayton plant?
5 A. Yes.
6 Q. And The OSHA violations that we are
7 talking about that you said, were they concerning
8 asbestos exposure no, sorry -- The OSHA violations
9 you were speaking about, did they concern excess
10 levels of asbestos exposure to workers?
11 A. High levels of aeresol asbestos fiber.
12
13 (Recess taken)
14
15 Q. You indicated that you started the process
16 in 1973 of taking asbestos out of the DAP products
17 and this was not completed until the end of 1978?
18 A. Very beginning.
19 Q. Beginning of 1978. Why did it take so
20 long?
21 MR. KRIPPNER: Objection to the form of
22 the question.
23 A. Well, it took -- I worked full time on it.
24 Several other chemists worked on it as well and we
25 went as fast as we could. It takes a long time to
149
1 develop a new formula.
2 Q. Was this your full-time job for five years
3 or did you work on other matters as well?
4 A. It was my full time job for five years.
5 Closer to four years.
6 Q. What did you replace the asbestos with?
7 MR. KRIPPNER: Objection to the form of
8 the question.
9 MS. PLACITELLA: What is the basis?
10 MR. KRIPPNER: Its vague. I dont know
11 which product or products you are talking about. It
12 lacks foundation and you havent established that
13 all products were able to be reformulated. You
14 havent referenced a time frame.
15 Q. Do you know --
16 MR. KRIPPNER: I think this case is about
17 architectural caulk. I think that is the scope of
18 the notice.
19 Q. Did you -- Your job description was to
20 take out asbestos from all the products, correct?
21 A. Yes.
22 Q. So were there different ingredients that
23 you used to replace the asbestos with, depending
24 upon the product?
25 A. Each of the products, it wasnt a matter
150
1 of replacing asbestos, it was a matter of
2 reformulating the products so that they had the same
3 physical characteristics as the original product.
4 Q. In the products, were the ingredients the
5 same and the amounts varied or did you add
6 additional ingredients to a particular product?
7 A. Both.
8 Q. So lets talk about the DAP architectural
9 caulk. What specific -- did you add any ingredients
10 to that formula when you took out the asbestos?
11 A. There was a lot of products I worked on
12 and I cant respond to you accurately without
13 reviewing one of the formula cards.
14 Q. The one up on the screen is February 28,
15 1979. I show you whats been marked P-27. This is
16 dated February 29, 1979.
17 MR. KRIPPNER: Objection to the form of
18 the question.
19 MS. PLACITELLA: What do you object
20 to? I didnt ask a question.
21 MR. KRIPPNER: February 29th. I dont
22 think that is the date of it.
23 MS. PLACITELLA: February 28, 1979. You
24 can just help me out counsel, it has been a long
25 day. Instead of objecting you can just help me if I
151
1 make a small error like that.
2 MR. KRIPPNER: Okay.
3 MS. PLACIETLLA: Thank you.
4 Q. Have you seen this document before?
5 A. Yes.
6 Q. Obviously, because you signed it, right?
7 A. Yes.
8 Q. Now, when it says replacement of code 330
9 with code 30, can you explain that, please?
10 A. This was just a routine exchange of raw
11 materials. They probably ran out of code 330 and
12 they had to replace it with 30.
13 Q. It was a different type of soy bean oil
14 used?
15 A. Yes.
16 Q. And this particular formula of DAP
17 architectural caulk in February 28, 1979, did not
18 have asbestos, correct?
19 A. Thats correct.
20 Q. It did have asbestostine 3X?
21 A. Thats correct..
22 Q. How long has asbestostine 3X been in the
23 DAP architectural caulk product line?
24 A. We had to go back and look at the early
25 formula cards to determine exactly when it was put
152
1 in. It was put in at least by 1978. We have got
2 one of those 1975 formula cards. We could compare
3 the two.
4 Q. Thats what Im looking for. Im going to
5 show you whats been marked as P15 through P-22 and
6 can you tell me if there was any asbestine in those
7 formulas?
8 A. No. Theres no asbestine in these
9 formulas.
10 Q. I received a thousand pages of documents
11 that were product specifications. I have them in my
12 car. I can take a break and go get them.
13 Do you know when the asbestine was first
14 put in the product?
15 MR. KRIPPNER: Objection to the form of
16 the question. Asked and answered. Sorry, objection
17 to the form of the question.
18 A. I dont know the exact date without going
19 back and looking at the formula cards. However,
20 this formula card is dated 1978. It has no
21 asbestine. This is dated 79 and it has asbestine.
22 I would say between 75 and 79.
23 Q. This is P-23. This is a formula from 1961
24 that says international fiber. What is
25 international fiber?
153
1 A. That is an old, old asbestos fiber and
2 there are very few references to it. I dont know
3 the exact specification. It is asbestos fiber as
4 was code 65.
5 Q. That was not asbestine or international
6 talc. That was asbestos fiber?
7 A. Thats correct.
8 Q. That was called international fiber?
9 A. Yes.
10 Q. Do you know who supplied that to the DAP
11 plant?
12 A. No.
13 Q. Looking at whats on the screen dated
14 February 28,1979, asbestine 3X is one of the
15 ingredients and it varies, it seems from your
16 formulas, from 19 to 20 percent. Is that fair?
17 A. Yes.
18 Q. Are you familiar that asbestine 3X is a
19 product of International Talc?
20 A. No.
21 Q. Are you familiar with R. T. Vanderbuilt?
22 A. Yes.
23 Q. What is your understanding of R. T.
24 Vanderbuilt in relation to asbestine 3X?
25 A. They were a supplier of DAPs. I
154
1 recognize them from that standpoint only. I dont
2 know what raw materials they provided.
3 Q. Were you aware that asbestine was a
4 product of International Talc which was bought out
5 by R. T. Vanderbuilt?
6 A. I have been told that in the past, but it
7 doesnt register at this point in time.
8 Q. Are you aware that asbestine was
9 contaminated with Temilite asbestos?
10 MR. KIPPNER: Objection.
11 MS. PLACITELLA: What is the objection?
12 MR. KIPPNER: Lacks foundation.
13 MS. PLACITELLA: No. Thats not --
14 remember, we discussed this, counsel. That is not a
15 proper form of objection at this point.
16 MR. KIPPNER: Your question assumes
17 facts that are not established.
18 MS. PLACITELLA: Thats the same form of
19 objection, counsel.
20 MR. KIPPNER: I am going by what I have
21 been advised are the proper form objections.
22 MS. HALLY: That is a proper objection.
23 Assumes facts not in evidence.
24 MS. PLACITELLA: That is not a form
25 objection.
155
1 MS. HALLY: It is a proper form objection.
2 MS. PLACITELLA: Okay. Ill continue.
3 Q. Sir, you didnt answer my question. Are
4 you aware that asbestine was contaminated with
5 Tremilite asbestos?
6 MR. KIPPNER: Objection.
7 A. No.
8 Q. In your role as a corporate representative
9 in asbestos litigation, this issue has never been
10 presented?
11 MR. KRIPPNER: Objection to the form of
12 the question to the extent you are seeking to
13 explore his communications with counsel or for DAP
14 is entirely inappropriate. I would ask you to
15 rephrase the question.
16 Q. Has it ever been brought to your attention
17 about the issue that asbestine 3X was contaminated
18 with Tremilite asbestos?
19 MR. KRIPPNER: Objection to the form of
20 the question.
21 A. No.
22 Q. So Im the first one? Wow, Im making a
23 little bit of levity. I found out something out
24 that he didnt know. Okay.
25 Were you aware that studies were done of
156
1 mine workers who mined asbestine and other brands of
2 International Talc and died of mesothelioma?
3 MR. KRIPPNER: Objection to the form of
4 the question. Ill stick with the objections.
5 A. No.
6 Q. I dont have anything on this, but I can
7 show you that since 19 -- Were you aware that since
8 1990 there were five known --
9 MR. KIPPNER: Is there a document you can
10 put something up on the board?
11 MS. PLACITELLA: The only thing I have is
12 this. I can send counsel the documentation. I
13 didnt bring it with me.
14 MS. HALLY: Is this on your Power Point?
15 MS. PLACITELLA: Just on my Power Point.
16 Q. Were you aware, sir, that five R. T.
17 Vanderbuilt employees have been diagnosed with
18 mesothelioma who had mined asbestine at
19 International Talc?
20 MR. KRIPPNER: Objection to the form of
21 the question.
22 A. No.
23 MS. HALLY: Is the Power Point marked as
24 an exhibit?
25 MS. PLACITELLA: I can have it marked.
157
1 (Marked P-28)
2 Q. I show you whats been marked P-28 and
3 this is a letter that was sent to Georgia Pacific in
4 January 1975 that indicates various International
5 Talc fibers that had warnings and caution labels
6 concerning asbestos.
7 Were you aware of that, sir?
8 MR. KRIPPNER: Objection to the form of
9 the question.
10 A. No.
11 Q. Have you ever seen this document before?
12 A. Not that I recall.
13 Q. So you have not seen this document as a
14 representative when you were a DAP employee as DAP
15 was a customer of R. T. Vanderbuilt?
16 MR. KRIPPNER: Objection to the form of
17 the question.
18 A. No.
19 Q. Were you aware, sir, that the following
20 caution that says caution product contains asbestos
21 fibers, avoid creating dust. Breathing asbestos
22 dust may cause serious bodily harm was put on
23 International Talc bags?
24 MR. KRIPPNER: Objection to the form of
25 the question. She is not asking you a question
158
1 about the document.
2 A. No.
3 Q. Did you ever see the bags of asbestine
4 that came into the plant?
5 A. I saw the bags, but I never --
6 Q. Did you see the labels on the bags?
7 MR. KRIPPNER: Objection to the form of
8 the question.
9 A. I didnt pay attention to those.
10 Q. Were you aware, sir, that a customer of
11 the R.T Vanderbuilt, National Gypsum, conducted its
12 own studies and determined that asbestos in --
13 Were you aware, sir, a customer of R.T.
14 Vanderbuilt, National Gypsum, conducted its own
15 studies and determined that International Talc
16 asbestine was contaminated with Tremilite asbestos?
17 MR. KRIPPNER: Objection to the form of
18 the question. Answer it.
19 A. No.
20 MR. KRIPPNER: Counsel, are we done with
21 this document?
22 MS. PLACITELLA: Sure.
23 (Marked P-29)
24 MR. KRIPPNER: I have never seen this
25 document before. It is not a DAP document. I
159
1 havent had a chance to review it yet.
2 Q. Based upon this document dated June 7,
3 1974, were you aware that National Gypsum conducted
4 its own test to determine whether asbestine 3X
5 contained Tremilite asbestos?
6 MR. KRIPPNER: Objection to the form of
7 the question.
8 A. Im not aware of the testing. Im aware
9 of the document. I just read. Im not aware they
10 conducted any tests.
11 Q. And apparently, based upon this document,
12 National Gypsum tested the asbestine, International
13 Talc fiber, which was the same fiber that was used
14 in the DAP caulking product and determined that it
15 contained Temilite asbestos, and that the
16 recommendation was that they do not use the
17 asbestine 3X fibers. Were you aware of that, sir?
18 MR. KRIPPNER: Objection to the form of
19 the question.
20 A. No.
21 Q. Did DAP conduct its own test, as did
22 National Gypsum, to determine whether the asbestine
23 was contaminated with Treminlite asbestos?
24 A. Not to my knowledge.
25 Q. And how long was the asbestine an
160
1 ingredient in the DAP caulking product?
2 MR. KRIPPNER: Objection to the form of
3 the question.
4 A. It was put in somewhere around 1978, but I
5 dont know if they are still using it or not. I
6 have no way of knowing that.
7 (Recess taken)
8
9 Q. Mr. Treat, as far as your recollection of
10 the formulation of the DAP caulk, did DAP caulk
11 contain asbestine at the same time it contained
12 asbestos as well?
13 A. No.
14 Q. So, as far as your recollection is,
15 asbestine was a replacement ingredient in the
16 reformulation of the DAP caulk when you took out the
17 asbestos?
18 A. It was one of several raw materials.
19 Q. We discussed this one on the screen, which
20 is February 28, 1979, DAP caulk, where you have
21 asbestine as an ingredient. Is that correct?
22 MR. KRIPPNER: Objection to the form of
23 the question.
24 Q. P-27. Do you recall looking at that
25 document, sir?
161
1 A. Yes.
2 Q. P-27 indicates that February 1979
3 asbestine was an ingredient in the DAP architectural
4 caulk. Is that correct?
5 A. Thats correct.
6 Q. And Im going to show you which is now
7 P-30, is a DAP product formula listed as temporary.
8 May I continue?
9 The effective date is July 26, 1983. It
10 concerns DAP architectural caulk. Is that correct,
11 sir?
12 A. Yes.
13 Q. And were you involved in this formulation?
14 A. I dont see my signature on there, so I
15 would have to say no.
16 Q. And is it fair to say that asbestine 3X is
17 a raw material used in this formulation?
18 A. Yes.
19 Q. And the percentage by weight is over
20 20 percent, correct?
21 A. Yes.
22 Q. P-31 is a document with formula number
23 1230-0567. The effective date of is November 14,
24 1983. And an ingredient in this particular
25 formulation of DAP architectural caulk has asbestine
162
1 3X. Is that correct, sir?
2 A. Yes.
3 Q. And again, thats over 20 percent by
4 weight. Is that fair?
5 A. Yes.
6 Q. So, as far as the formula cards that I was
7 able to extract, to at least of the end of 1983
8 asbestine was an ingredient in the DAP architectural
9 caulk, correct?
10 MR. KRIPPNER: Objection to the form of
11 the question.
12 A. Yes.
13 Q. Now, it is your testimony that you were
14 not aware that DAP -- that the asbestine was
15 contaminated with Tremilite asbestos?
16 MR. KRIPPNER: Objection to the form of
17 the question.
18 A. Thats correct.
19 Q. Did you ever see any documentation while
20 you were at DAP from R.T. Vanderbuilt regarding the
21 issue of Tremilite asbestos in its talc?
22 A. We get all our data taken from products
23 from material safety data sheets. Theres no
24 indication on any of the material safety data sheets
25 from the talc suppliers that theres anything other
163
1 than talc in there.
2 Q. So you nerve saw the warning that we had
3 previously identified that was on the talc product
4 from R. T. Vanderbuilt for a period of time?
5 MR. KRIPPNER: Objection to the form of
6 the question.
7 A. No.
8 Q. Are you aware of how many asbestos related
9 lawsuits DAP has defended since 1990?
10 A. No.
11 Q. In the Answers to Interrogatories for the
12 Madison County Interrogatories, it indicated that
13 for a ten year period ending in 1999 there were 370
14 asbestos-related asbestos cases that were listed.
15 Are you aware of that, sir?
16 A. No.
17 Q. Are you aware of how many cases have been
18 filed since 1999?
19 A. No.
20 Q. Are you aware that based upon your review
21 of Mr. Johnsons testimony that he stated he used
22 DAP architectural caulk in the 60s, 70s and the
23 80s in his job as a carpenter?
24 MR. KRIPPNER: Objection to the form of
25 the question.
164
1 A. Yes.
2 Q. You are aware of his testimony?
3 A. Im aware of his testimony.
4 Q. So, based upon the documents that we have
5 gone over today, is it fair to say that in the 1960s
6 and the 1970s the DAP architectural caulk contained
7 asbestos?
8 A. Yes.
9 Q. And beginning in 1978, until we dont know
10 when, that the DAP architectural caulk contained
11 asbestine that allegedly contained Tremilite
12 asbestos?
13 MR. KRIPPNER: Objection to the form of
14 the question.
15 A. It contained asbestine. Thats all I can
16 say. Some of the documents you have there talk
17 about asbestine. This is asbestine 3X. I dont
18 know if they are the same product and if they have
19 the same history.
20 Q. And asbestos 3X is a brand of asbestine.
21 Were you were you aware of that, sir?
22 A. It is a grade, so it is a product.
23 Q. It is mined from the same mine. Were you
24 aware of that, sir?
25 MR. KRIPPNER: Objection to the form of
165
1 the question.
2 A. Im aware that the asbestine 3X series of
3 products have different properties.
4 Q. What properties are they, sir?
5 A. They have different oil sources, different
6 color, different particle size.
7 Q. Than what?
8 A. Im sorry. I dont understand.
9 Q. You said that they have different
10 properties and Im asking different properties of
11 what? What are you comparing them to?
12 MR. KRIPPNER: Objection to the form of
13 the question.
14 A. Each other.
15 Q. Which one are you comparing?
16 A. All of them. Thats how they were issued.
17 You have got this product here, has got a particle
18 size such and such, got a color of such is and such,
19 oil of such and such. Got asbestos 3X here. Its
20 got a particle size of such and such.
21 Q. So which products from International Talc
22 and Johns-Manville did you personally test?
23 MR. KRIPPNER: Objection to the form of
24 the question.
25 A. We evaluated asbestine 3 in that product.
166
1 Q. Did you evaluate any other talc from
2 R. T. vanderbuilt or International Talc?
3 A. I dont remember. Seems to me there was
4 talc from several companies. I cant -- I dont
5 remember. Just too long ago.
6 Q. But as far as you know, in the formulas,
7 asbestine was the talc that was used?
8 A. Asbestos 3X, yes.
9 Q. Right. That was the talc that was used,
10 right?
11 A. Yes.
12 Q. So is it fair to say that after the
13 asbestos was taken out, Mr. Johnson used DAP
14 architectural caulk that contained asbestine?
15 A. Asbestine 3X.
16 Q. Asbestine 3X. Is that fair to say?
17 A. Yes.
18 Q. And its also fair to say that DAP
19 conducted no studies concerning the possibility of
20 Tremilite asbestos in the asbestine 3X?
21 A. Not to my knowledge.
22 MS. PLACITELLA: Thank you. Thats all I
23 have.
24 (Recess taken)
25
167
1 MS. HALLY: Before we start, we are FAXing
2 ten pages of documents over to counsel for Union
3 Carbide.
4
5 CROSS EXAMINATION BY MR. KIPPNER:
6
7 Q. In your review of Mr. Johnsons testimony,
8 do you have an understanding of which, if any, DAP
9 product he discussed using at some point in his
10 career?
11 A. No.
12 Q. Did Mr. Johnson discuss architectural
13 caulk at some point in his deposition?
14 A. I dont know if he specifically said
15 architectural caulk, but he just said DAP products.
16 My recollection.
17 Q. Let me ask you some questions about caulk.
18 Are you familiar with DAP caulking products through
19 the review of records and your own personal
20 experiences during the time period when Mr. Johnson
21 would have been working?
22 A. Part of the time he was working.
23 Q. Okay. Would you explain the application
24 of caulk, what form it comes in and how it is used?
25 A. Most of the time caulk comes in a tube
168
1 that is put into a caulk gun. The tip end of the
2 tube is cut and when pressure is applied to the
3 caulk tube through the caulk gun, the caulk squeezes
4 out the end.
5 Q. Describe the nature and consistency of the
6 caulk when it is applied?
7 A. It is a gooey, viscous product.
8 Q. What does viscous mean?
9 A. Viscous means it flows. Some caulks flow
10 easier than other caulks.
11 Q. If you were to take a tube of DAP caulk
12 and put it in a caulking gun and squirt it out in an
13 application like on a window sill, then proceeded to
14 sand it, what would occur?
15 A. You would gum up the sand paper.
16 Q. What does that mean?
17 A. It means it is a gummy substance and you
18 just would destroy the caulk plus you would just
19 load up pigment loading, your sandpaper, just a
20 gooey mess.
21 Q. If in the process of applying this gooey
22 viscous product you got some in your hand, you got
23 some on your hand, excuse me, what would occur?
24 A. You would have a gooey mess on your hands
25 They would be sticky, gummy.
169
1 Q. What would you do if you wanted to remove
2 it?
3 A. You are talking about DAP caulk
4 specifically?
5 Q. Yes.
6 A. I would put a little mineral spirits on a
7 rag and clean it off.
8 Q. What are minimal spirits an organic
9 solvent which is what is in DAP caulk.
10 MR. KRIPPNER: I have nothing further.
11 Thank you, very much.
12 MS. PLACITELLA: Any questions from the
13 call in attorneys?
14 VOICE: I want to put my objection on the
15 record that the documents related to Union Carbide
16 were not furnished prior to this deposition.
17 MS. PLACITELLA: We are not obligated to
18 do so, counsel. Any other objection?
19 VOICE: Yes. If you just give me a
20 moment. If anybody else would like to go, go ahead.
21 I just received some of the documents that
22 were marked as exhibits. I would like to reserve
23 the right to redepose this witness.
24 MR. KRIPPNER: As counsel for DAP, we
25 object to that. You are reserving a right to do
170
1 so. Im not agreeing that you have that right, but
2 I said we can address that at a later time.
3 VOICE: We can make an application to the
4 court and address it at a later time.
5 RE-DIRECT BY MS. PLACITELLA:
6
7 Q. Mr. Treat, you indicated that the process
8 of taking the dried DAP caulk off the consumers
9 hand is by using a rag with mineral spirits,
10 correct?
11 MR. KRIPPNER: Objection to the form of
12 the question.
13 A. Taking the DAP caulk, I didnt say it was
14 dried. It is an oil based product. It takes a long
15 time to dry.
16 Q. What do you do if you dont have a rag?
17 A. Wipe it on the grass, wipe your fingers on
18 the grass, I guess.
19 Q. As we discussed, are you aware
20 carpenters routinely wipe the product off on their
21 pants? Are you aware of that, sir?
22 A. That is entirely plausible.
23 Q. There is some shrinkage to the DAP product
24 once it is applied, correct?
25 MR. KRIPPNER: Objection to the form of
171
1 the question.
2 A. Yes.
3 Q. And why does it shrink?
4 A. It shrinks because the mineral spirits
5 dsapates.
6 Q. And thats it. Nothing further. Thank
7 you.
8 (The deposition is concluded at 4:24)